Cambodia: Progress and Challenges since 1991

15. Justice and Reconciliation in Cambodia

188 Jean-Marc Lavergne 188 15 JUSTICE AND RECONCILIATION IN CAMBODIA Jean-Marc Lavergne INTRODUCTION Countless challenges have arisen in the efforts to create a court with jurisdiction to try “senior Khmer Rouge leaders and those who were most responsible” for the crimes committed during their regime within Cambodia. These efforts were met with scepticism by those who considered judicial intervention either impossible or meaningless in a country such as Cambodia. Despite all this, the long-awaited time for justice in Cambodia has finally arrived. It is not, however, an easy task. As it is a work in progress, results cannot yet be finally assessed. The Khmer Rouge Tribunal, officially named the Extraordinary Chambers in the Courts of Cambodia (ECCC), faces many challenges. However, the issuing of its first judgment in July 2010 and the start of a second trial in 2011 are unquestionably important and concrete steps in “moving forward through justice” and give hope for reconciliation. Before focusing on the ECCC, it is necessary to put the Cambodian experience into a broader context. The development of International Criminal Law and transitional justice is relatively new. The path from impunity to 15 Cambodia_Progress 3/6/12, 10:37 AM 188 Justice and Reconciliation in Cambodia 189 accountability for the perpetrators of the most serious crimes has seen the emergence of international norms and now offers an increasingly effective response to post-conflict situations. FROM IMPUNITY TO ACCOUNTABILITY OR THE EMERGENCE OF NORMS TO PROVIDE JUSTICE TO VICTIMS OF THE MOST SERIOUS CRIMES AND ITS DEVELOPMENT The 20th century had witnessed systematic violations of fundamental rights in different regions of the world. The responses to those crimes were different: retaliation, amnesty, regular trials, Truth and Reconciliation Commissions, international tribunals or simply, oblivion. Since awareness grew for the need to prosecute and to sentence perpetrators for the most serious atrocities that touched the universal conscience, the path to an effective international criminal justice has been long. It is generally recognised that it is the duty of the international community to ensure that victims of genocide, crimes against humanity and war crimes receive justice. But it would be wrong to believe that the implementation of this principle has resulted in a smooth process, with regular advances. The development of international criminal justice comprises both backward and forward steps while the balance between ethical imperatives and political constraints is always a complex and perilous exercise. On the one hand, this depends on specific political circumstances, tragic events, or the conscience of the international community when it has failed to prevent foreseeable atrocities or to maintain peace. On the other hand, political, financial or economic considerations also come into play when relationships between States are aimed at protecting national or strategic interests. At the end of the 19th century, when adopting the Convention on Laws and Customs of War, State representatives noted that “populations and belligerents remain under the protection and empire of the principles of international law.”1 They recognized that these principles resulted from “the usages established between civilized nations, from the laws of humanity and the requirements of the public conscience.”2 This clause marked a real starting point for the evolution of humanitarian law, but no mechanism was developed to enforce these principles. In particular, no international court was established to provide justice to victims. Despite plans to try those considered as perpetrators of the crime of aggression and those deemed responsible for World War I,3 no trials were conducted in its aftermath. Efforts to give more effect to humanitarian law continued in vain until the end of World War II. In the 1920s, the Council 15 Cambodia_Progress 3/6/12, 10:37 AM 189 190 Jean-Marc Lavergne of the League of Nations mandated a committee to examine the feasibility of creating a permanent international criminal tribunal. However, this plan was considered premature and was rejected by several countries on the basis of the principle of non-interference in domestic affairs.4 It was only in the aftermath of World War II that international criminal justice was born to try those individually accountable for the horrors committed under the rule of fascist States. The International Military Tribunal of Nuremberg and the International Military Tribunal for the Far East were however criticized as “Tribunals of the victors” and for applying criminal law retroactively. Nonetheless they contributed by providing the foundation for modern international criminal law, in particular...