Global Politics Summer School Cambodia 2011

Title of Term Paper:

In Search of Transitional Justice in Cambodia:
Integrated Mechanisms of Retributive and Restorative Justice

Prof. Wolfgang FORM Submitted by: Theara KHOUN

Word Count: 1483 Words Due Date: 20 July, 2011

In Search of Transitional Justice in Cambodia

Integrated Mechanisms of Retributive and Restorative Justice

I. Introduction
At this moment of human history, the world has witnessed one of the most disastrous, inhumane genocide occurred in Cambodia between 1975 and 1979, socalled, Khmer Rouge Regime. The legacy of this regime can be traced back to 1975 when it, under the leadership of Pol Pot, successfully defeated Lon Nols Administration. This was the starting point of the traumatic milestone in Cambodian history. After Pol Pot came to power, he together with his comrades restructured economic, cultural, social and political affairs of the country based primarily on Maoist Doctrine in the sense that all people were forced to evacuate from the cities or hometown to the rural area, and religious practices, currency and private ownership were totally abolished and so forth.1 More seriously, most of educated intellectuals, professionals and former Royalist officials that were considered as the threat to communist government were seriously tortured, exterminated and placed under many other cruel treatments, especially in S-21 prison. The remaining innocent citizens were forced to work on the vast rice fields in rural area with very poor working and starvation conditions. At the end of this regime in 1979, at least 1.7 million Cambodians were killed, representing around a quarter of Cambodian population.2 Although Khmer Rouge Regime was formally collapsed by Vietnamese invasion, but it still occupied some parts of the country until 1997 when it surrendered to the government. From this point in time, Cambodian people can enjoy relative peace and political stability in the country but their traumatic feelings and sufferings are still deeply rooted in their mindsets. With this considerable and favorable environment, it is a need to seek justice or more precisely, transitional justice for these victims as a means to compensate and rehabilitate for their sufferings. In this setting, transitional justice refers to the short-term and often temporary judicial and non-judicial mechanisms and processes that address the legacy of human rights abuses and
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Viroth, Doung & Sophal, Ear. (2009). Transitional Justice Dilemma: The Case of Cambodia. Peace and Conflict Review, Vol(4), No(1). Page1-4 2 Worden, Scott. (December, 2007). On the Issues: Cambodia. Retrieved on 18th July, 2011 from http://projetatlas.univ-paris1.fr/IMG/pdf/ATLAS_Cambodia_Report_FINAL_EDITS_Feb2011.pdf

violence during a societys transition away from conflict or authoritarian rule.3 The following paper suggests that transitional justice in Cambodia can come into place based upon two integral, complementary mechanisms, that is, retribution (punishment and trial of perpetrators via judicial proceedings) and restoration (non-judicial reconstruction of relationships between individual and community by forgiveness, public apology and amnesty).

II. Retributive Justice in Cambodia and Its Limitations

One effective approach to bring about transitional justice for Cambodians is through retributive or legalistic justice. As cited from Doung Viroth and Ear Sophal, retributive justice is a mechanism to bring perpetrators to court and hold them accountable, via either punishment or atonement, for past wrongdoings.4 This approach has multiple goals including, but not limited to, administering justice for victims, punishing the wrongdoing of perpetrators, deterring future recurrence, and promoting rule of law and human rights.5 By revitalizing this significance, n 1997, Royal Government of Cambodia headed by Co-prime Ministers Hun Sen and Norodom Ranaridh sent a letter to UN asking for assistance in holding accountability for those liable for genocide and crime against humanity during Khmer Rouge Regime. After 10 years of negotiation, a hybrid international tribunal, so-called, Extraordinary Chambers in the Courts of Cambodia (ECCC) was established in 2006.6 Its mandate is exclusively to prosecute to those who were senior leaders and most responsible figures in Khmer Rouge Regime.7 With this limitation, so far, there are only 2 cases namely, Case 001 and Case 002 that has been tried with merely 5 peoples in charge. On the one hand, the tribunal is really significant in educating people, convicting the top perpetrators and seeking symbolic justice for the victims. On the other hand, this very few numbers of people holding responsible for this massive genocide is, to a great extent, not compensated to losses of millions of lives and on3

Sanam, Anderlini, Camille, Conaway and Kays, Lisa. (?). Transitional Justice and Reconciliation. Retrieved on 18th July, 2011 from www.huntalternatives.org/download/49_transitional_justice.pdf 4 Viroth, Doung & Sophal, Ear, 2009. 5 Couenhoven, Jesse. (September 2009). Retributive Justice: A Penitential Pedagogy. Retrieved on 17th July, 2011 from http://www.elca.org/What-We-Believe/Social-Issues/Journal-of-LutheranEthics/Issues/September-2009/Retributive-Justice-4.aspx 6 Muddell, Kelli. (2003). Transitional Justice in Cambodia: Challenges and Opportunities. Retrieved on 17th July, 2011 from http://ictj.org/sites/default/files/ICTJ-HRW-Cambodia-Symposium-2003English.pdf 7 ECCC. (2004). An Introduction to the Khmer Rouge Trials. 4th eds. Page 7

going sufferings of Cambodian people. In addition, there are many other critical issues and challenges arising from such retributive justice mechanism as exemplified by the case of ECCC. First, this judicial proceeding of ECCC is constrained by political interference or lack of political commitment of the government. For example, the government announces publicly that it would not allow having Case 003 or Case 004 as it would, otherwise, harm to public order and political stability.8 However, it is believed that this is due to the fact that some high ranking officials in the government may be involved in this case. Second, there is limited capacity and resources to proceed the tribunal in a fair, accountable and transparent manner. In ECCC, it is also lack of legal instruments to deal with criminal acts, and experienced, competence judge and translators and many other technical issues. Moreover, the budget will be exhausted very soon; therefore, it needs to seek an additional $43 million to fulfill its mandate.9 Other than that, according to a recent study, 85% of overall Cambodian populations do not even know the existence of ECCC.10 This implies that the trials and conviction of those few liable for the genocide can only minimal effect to heal victims mental and physical sufferings during the Pol Pots Regime. For these justifications, retributive justice for Cambodian people seems to be inadequate.

III.

Restorative Justice in Cambodia and Its Limitations

Another notwithstanding mechanism applicable to achieve transitional justice

in Cambodia context is restorative justice. This term is defined as a process through which all those affected by an offencevictims, perpetrators and by-standing communitiescollectively deal with the consequences. It is a systematic means of addressing wrongdoings that emphasizes the healing of wounds and rebuilding relationships.11 Whereas retributive justice focuses on punishment and atonement, restorative justice seeks to rebuild relationships and trusts between victims and perpetrators through amnesty, forgiveness and public apology organized by truth commission or community-based forum. This approach of truth telling and meeting between victims and perpetrators are very useful and effective in unifying the division

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Open Society for Justice Initiative. (2010). Political Interference and ECCC. P. 22-23 Worden, Scott, 2007. 10 Viroth, Doung & Sophal, Ear., 2009. P 13. 11 Sanam, Anderlini, Camille, Conaway and Kays, Lisa, n.d.

in society, providing a means for rehabilitation and peaceful co-existence and preventing further harm to society. Such mechanism has proved considerable successes in many countries such as in South Africa and particularly Cambodia. Looking back to 1997, Cambodian government made a decisive and appreciable decision as it negotiated with former Khmer Rouge leaders and troops to give amnesty to them when they pledged to stop fighting, acknowledged their wrongdoings and fully reintegrated into society. This public apology has ended the longstanding civil war and guerilla in the country which is in return conducive to political stability and peaceful co-existence in the country. Furthermore, as suggested by Doung Virong and Ear Sophal, community-based public forum with involvement from Buddhist monks could also play an crucial role in reconciliation process by providing opportunity for both victims and perpetrators to express their suffering and remorse.12 They both furthered arguing that through this process, inflicted wounds and trauma can be healed, the dignity of victims can be restored, truth can be sought, and youth can participate and learn.13 However, this mechanism has one yet very serious limitation namely, justice. The perpetrators still are not accountable or punished for their wrong acts that in turn make victims feel really unsatisfactory. In this regard, restorative justice alone may not be the right response to realize transitional justice in Cambodia.

IV. Integrated Mechanisms as a Means to Realize Transitional Justice in Cambodia

As having critically discussed the distinct significances and limitations of both mechanisms at a moment, it can be said that both approaches are complementary and mutually inclusive thereby cannot be isolated. Both judicial and non-judicial approaches seek to establish justice, peace, rule of law and advanced democracy for Cambodia. However, each has played a distinctly important role. Normatively speaking, judicial approach of retributive justice puts more emphasizes on justice in the sense that the perpetrators are tried and convicted before the court so that there would be, more or less, justice for the victims and related stakeholders. On contrary, non-judicial approach of restorative justice stresses on peace rather than justice as it

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Viroth, Doung & Sophal, Ear., 2009. P 5-7. Ibid.,

seeks to reconcile the division and hatred between victims and perpetrators through public amnesty and apology so that both can reunite in a peaceful manner. If this reconciliation does not come into place, there would be on-going division and conflict between social groups which would, otherwise, threaten to peace and political stability in the country. In this sense, if both retributive and restorative approaches are integrated, Cambodia would be able to balance between peace and justice for its people that are the favorable condition to achieve transitional justice in the country.

V. Conclusion
After experiencing a painful tragedy inherited from the legacy of Khmer Rouge, Cambodia now is on its way to seek for truth and transitional justice for its citizens to heal their trauma and restore dignity of victims. Its success in this endeavor will undoubtedly set a prominent precedent for future post-conflict countries. To achieve this goal, once again, it is recommended to combine both retributive and restorative justice in the process.

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References:
Couenhoven, Jesse. (September 2009). Retributive Justice: A Penitential Pedagogy. Retrieved on 17th July, 2011 from http://www.elca.org/What-We-Believe /Social-Issues/Journal-of-Lutheran-Ethics/Issues/September-2009/ Retributive-Justice-4.aspx ECCC. (2004). An Introduction to the Khmer Rouge Trials. 4th eds. Page 7 Muddell, Kelli. (2003). Transitional Justice in Cambodia: Challenges and Opportunities. Retrieved on 17th July, 2011 from http://ictj.org/sites/default /files/ICTJ-HRW-Cambodia-Symposium-2003-English.pdf Open Society for Justice Initiative. (2010). Political Interference and ECCC. P. 22-23 Sanam, Anderlini, Camille, Conaway and Kays, Lisa. (?). Transitional Justice and Reconciliation. Retrieved on 18th July, 2011 from www.huntalternatives.org/ download/49_transitional_justice.pdf Viroth, Doung & Sophal, Ear. (2009). Transitional Justice Dilemma: The Case of Cambodia. Peace and Conflict Review, Vol(4), No(1). Page1-4 Worden, Scott. (December, 2007). On the Issues: Cambodia. Retrieved on 18th July, 2011 from http://projetatlas.univ-paris1.fr/IMG/pdf/ATLAS_Cambodia _Report_FINAL_EDITS_Feb2011.pdf