An Extraordinary Experiment: Transitional Justice at the ECCC

An Extraordinary Experiment: Transitional Justice at the ECCC

I   Introduction

In April 2015, Cambodia marked the 40^th anniversary of the ‘Fall of Phnom Penh’.[1] Four decades earlier, soldiers in dressed in black uniforms atop tanks moved into the Cambodian capital, proclaiming their victory over the corrupt regime of US-backed Lon Nol, and their liberation of the Cambodian people.[2] Many war-weary residents greeted the cadres with cautious optimism, while others took to the streets to cheer their arrival.[3] Unfortunately, their hope could not have been further from the truth; the soldiers in black were the cadres of the KR. Under the leadership of Pol Pot, the KR reset the Cambodian calendar to ‘Year Zero’ and began to establish its idea of an agrarian communist utopia: Democratic Kampuchea (DK).[4] In pursuing this goal, the KR forcibly evacuated all cities with immediate effect and residents were forced to work in collective agricultural projects under the guard of armed soldiers and with wholly insufficient food and medical care.[5] Any semblances of prior Cambodian society were systematically eradicated; schools were shut down, money was abolished, and religion was outlawed. Those with links to the former government, as well as professionals and those deemed to be educated, were targeted for extermination. Hell-bent on their warped vision of an ethnically Khmer utopia, the KR instituted a widespread policy of forced marriage, with forced consummation, and persecuted minorities. Both paranoid and merciless, the KR conducted regular internal purges, summarily executing or torturing to death up to 400,000 people across its numerous prison centres and killing fields.[6]

The results of this ‘utopia’ were that over the four-year period of DK rule, up to two million Cambodians – a quarter of the country’s population – lost their lives.[7] They ‘were either killed directly through mass murder (targeting perceived ethnic, political and religious enemies of the new regime) or indirectly, due to the harsh life conditions inflicted on the population (death through starvation, overwork, malnutrition and poor medical conditions)’.[8] One victim commemorating the 40-year anniversary put it bluntly: ‘forty years ago Pol Put turned Cambodia into a hell, a ghost land … their sins are vivid in my eyes now’.[9] The impact of the KR thus continues to beleaguer Cambodia and its population, who are still struggling to reconcile with their past and rebuild after the obliteration of their society.[10]

In 2003, the United Nations (UN) and the Cambodian government reached an agreement to hold leaders of the KR to account.[11]  This resulted in the creation of the Extraordinary Chambers in the Courts of Cambodia (ECCC) in 2004, which had a mandate to prosecute the most senior leaders in the KR, and those most responsible for the atrocities they committed. [12] The Court would operate ‘in the pursuit of justice and national reconciliation, stability, peace and security’.[13]

II   Scope of this Essay

This essay will evaluate the performance of the ECCC as a mechanism of transitional justice. In doing so, it will reflect upon the stated goals of the ECCC, the aims of transitional justice, and how ECCC has fared in achieving them. Preliminarily, this essay will reflect on the meaning of transitional justice, and how it may be measured. It will then introduce the ECCC and place it within its context as a transitional justice mechanism.

The essay will then consider two key areas by which the ECCC’s transitional justice impact may be assessed. Firstly, it will examine the political context of the ECCC, and how this affects its characterisation as a tool of transitional justice. And secondly, it will consider the way in which the Court has engaged with the Cambodian people. This section will consider both the level of success that the ECCC has achieved in addressing victims’ rights through its civil party (CP) participation scheme, and the wider effects that the ECCC has had on Cambodian society, particularly with relation to outreach and capacity building.

III   Transitional Justice

A   Defining Transitional Justice

The terminology of transitional justice was first coined in the late 1980s and early 1990s, inspired by the numerous trials, amnesties, truth commissions, and institutional reforms that characterised the post-Cold War period of democratisation. From these changes, popularly considered as ‘transitions to democracy’, the new multidisciplinary field of ‘transitional justice’ emerged.[14] Broadly, transitional justice comprises the ‘set of practices, mechanisms and concerns that arise following a period of conflict, civil strife or repression, and that are aimed at directly confronting and dealing with past violations of human rights and humanitarian law’.[15]

Traditionally, transitional justice was considered narrowly. Teitel, for example, considered transitional justice to be ‘legal responses to confront the wrongdoings of repressive predecessor regimes’.[16] However, in more recent years, transitional justice has begun to expand into fields ‘that had traditionally been demarcated in scholarly terms as the concerns of conflict resolution and peace building’.[17] This change was heralded by the political climates of states such as South Africa and Rwanda, which necessitated the prioritisation of reconciliation and the re-establishment of the rule of law, and shifted the focus of transitional justice from retribution to restoration.[18] This reconceptualisation was endorsed by then UN Secretary General Kofi Annan in 2004, when he described transitional justice as:

‘The full range of processes and mechanisms associated with a society’s attempts to come to terms with a legacy of large-scale past abuses, in order to ensure accountability, serve justice and achieve reconciliation. These may include both judicial and non-judicial mechanisms, with differing levels of international involvement (or none at all) and individual prosecutions, reparations, truth-seeking, institutional reform, vetting and dismissals, or a combination thereof.’[19]

Rather than focusing on a specific ‘transitionary’ period, transitional justice extended to initiatives employed before, during and after the resolution of conflict.[20] Indeed, as the International Centre of for Transitional Justice (ICTJ) puts it: ‘in some cases, these transformations happen suddenly; in others, they may take place over many decades.’[21]

Initially, this change created a ‘perceived dichotomy that justice and reconciliation were incompatible goals’.[22] While retributive justice sought accountability for past atrocities, reconciliation measures were seen as seeking a compromise between such accountability and longer term stability.[23] Consequently, ‘the rhetoric of “reconciliation” was viewed by many as catering to apologists’.[24] Presently, however, the retributive and restorative elements of transitional justice are widely regarded as complementary, reflecting a ‘holistic understanding’ of the field.[25] Kofi Annan recognised as much is his 2004 report, where he stated that ‘[j]ustice, peace and democracy are not mutually exclusive objectives, but rather mutually reinforcing imperatives’.[26] As such, the best way to implement and subsequently evaluate transitional justice is ‘in light of the complexities that come with complementarity’.[27]

B   Shift to Hybrid Courts

As contemporary understandings of transitional justice began to shift, so too did the approach of the global community to international tribunals. The International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) had successfully prosecuted numerous war criminals and greatly impacted international criminal law jurisprudence. However, these fully international tribunals were criticised for their gargantuan costs and underwhelming impact on their respective post-conflict societies.[28] Consequently, there arose a ‘second generation’ of UN tribunals: hybrid courts.[29] Hybrid courts, such as the ECCC, ‘encompass […] both national and international elements in their structure, composition and jurisdiction’,[30]

‘in the hope that they would better accommodate sovereignty concerns, promote local ownership and legitimacy, connect trials to local survivor populations, build host government capacity, and deliver credible justice at a lower cost than fully international proceedings’.[31]

Hybrid courts, however, present their own challenges. Hybrid courts are ‘susceptible to confusion and inefficiency as they merge multiple legal systems and personnel with disparate backgrounds, training, and approaches to justice’.[32] Moreover, domestic political interference remains a constant threat. As will be explained below, this has been particularly problematic in countries such as Cambodia with underdeveloped judiciaries and a weak separation of powers.[33]

IV   The Politics of the ECCC

A   Context

To properly assess the ECCC as a mechanism of transitional justice, it is firstly necessary to contextualise its conception. After toppling the KR in 1979, the Vietnamese – backed by the Soviet Union – installed a new Cambodian Government: The People’s Republic of Kampuchea (PRK). The PRK was largely comprised of former KR cadres that had fled across the border during internal purges.[34] Meanwhile, the KR, and most of its senior leadership retreated to the mountainous area along the Thai border, where ‘they maintained significant influence in Cambodian politics until […] Pol Pot’s death in 1998’.[35] Due to Cold War politics, they also enjoyed continued international support despite the emerging evidence of their atrocities. Presciently, the new PRK – led by current Cambodian Prime Minister Hun Sen – tried and convicted Pol Pot and fellow KR senior leader Ieng Sary for their crimes in absentia. Unfortunately, ‘the trial was a typical Soviet-type show trial where justice was a distant second goal to the primary objective of destroying the political credibility of [the political opponent].’ [36]

Persisting international recalcitrance meant that opportunities for international criminal prosecution only became available, when in 1989, after significant international pressure and persistent KR agitation, Vietnam unilaterally withdrew from Cambodia.[37] In 1991, a peace agreement was reached between the warring factions. Unfortunately, rather than including any accountability mechanisms, the agreement ‘acted to re-legitimise’ the KR, by giving their delegation equal rights as a political party.[38] Elections subsequently occurred, with UN assistance in 1993.[39] Almost immediately afterward, Hun Sen, who had forced his way into a power-sharing coalition, outlawed the KR. Importantly, the law included an amnesty for ‘lower-lever’ cadres, which resulted in mass defections to the government.[40] Further defections ensued when the government controversially pardoned Ieng Sary. The amnesty strategy worked, ‘gravely weaken[ing]’ the remaining forces loyal to Pol Pot.[41] And while this ‘peace over justice’ approach was criticised as evidently political, Neou and Gallup rightly point out that it brought ‘peace to the rebel heartland, where every year the government had conducted bloody unsuccessful offensives’.[42]

Finally, in 1997, ‘against the background of emerging possibilities for international criminal justice’, the Cambodian government requested assistance from the UN to create a judicial mechanism to bring former KR to justice.[43] The UN appointed ‘Group of Experts’ eventually released a report in early 1999, recommending the establish of an international criminal tribunal. Despite recent trends toward hybrid tribunals, there were serious concerns over the independence and capacity of the Cambodian judiciary, which fell ‘far short of international standards of criminal justice’.[44] The report also proposed that the tribunal have jurisdiction limited to ‘those persons most responsible for the most serious violations of human rights during the reign of Democratic Kampuchea’ – a number they estimated would be ‘in the range of some 20 to 30’.[45]

Unfortunately, the sluggish pace of the UN report meant that crucial events had occurred in the interim; Pol Pot had died in 1998, and Nuon Chea (Pol Pot’s second-in-command) and Khieu Samphan (the DRK’s former head of state) ‘turned themselves in to the Government and to the literally and figuratively welcoming arms of Hun Sen’ – who by that time had ousted his co-prime minister to become the sole head of state.[46] Confirming the suspicions of many that threats of international prosecution were merely another tool to further ‘de-fang’ the KR,[47] Hun Sen publicly proclaimed the need to ‘dig a hole and bury the past’,[48] and lost his enthusiasm for any international accountability mechanism. [49]

Nonetheless, and largely due to the persistence of local civil society and a handful of states, negotiations endured. [50]  From the Cambodian government, there was a clear desire to exert control over the proceedings. This desire for ownership extended to a pre-eminent role for the Cambodian judiciary, and the application of Cambodian law.[51] The Cambodian government also emphasised that the Court have a limited jurisdiction. From the side of the UN, the proposed tribunal needed to uphold international justice standards.[52] For the UN, it was particularly important that the government cooperate with the orders of the court, and that previous amnesties would not provide immunity from its jurisdiction.[53] UN negotiators pushed for a majority of international judges, to ensure judicial independence.[54] Further, they argued for a single international co-prosecutor, as there had been in the ICY, ICTR and the Special Court for Sierra Leone.[55]

Eventually, in 2003, the two parties reached the UN-Cambodia agreement, which provided the basis for the ECCC. The Court was subsequently established in Cambodian law on 27 October 2004, with jurisdiction over senior leaders of Democratic Kampuchea and those who were most responsible’ for the crimes of the KR perpetrated during the DK period. [56]

B   Structure of the ECCC

While the Court was to apply both domestic and international law, the ECCC would – and does – operate as a Cambodian court situated within the Cambodian judiciary.[57] As a former French protectorate, Cambodia operates under a civil law system, which was accordingly reflected in the structure of the ECCC.

The ECCC was created with three chambers: The Pre-Trial Chamber (PTC), the Trial Chamber and the Supreme Court. Reflecting the inquisitorial nature of French and Cambodian law, the Court has two Co-Investigating Judges (CIJs) – one Cambodian and one international.[58] The CIJs are concerned with conducting extensive investigations, and compiling both inculpatory and exculpatory evidence to be reviewed and deliberated upon by the Trial Chamber. Cases are referred to the CIJs for investigation by the Court’s Co-Prosecutors – one of whom is international, and the other Cambodian. Disagreements between the Court’s CIJs and the Co-Prosecutors are resolved in the PTC, while decisions of chambers are appealable to the Supreme Court.[59] All three Chambers are comprised of both international and Cambodian judges, with a Cambodian majority. Importantly, however, at the UN’s insistence, any affirmative decision (such as a conviction) must be made by a ‘super-majority’, meaning that at least one foreign judge must agree with their national colleagues.[60] In the PTC, if a supermajority cannot be reached to terminate an investigation or prosecution, then it will proceed.[61]

C   The Political Plight of the Court

The political position of the ECCC has been a troubled one. NGOs and civil society have also criticised the UN’s partnership with a Cambodian regime that has been widely accused of corruption and human rights abuses.[62] Thus, the level of control afforded to the Cambodian government has threatened the ongoing legitimacy of the ECCC. Hun Sen has many staff embedded within the Court, and as such it has been dogged by allegations of corruption and interference, which ‘have not been meaningfully confronted’.[63] This has resulted in several international legal officers resigning.[64] The ECCC has opened four cases. While the national and international sides co-operated during Cases 001 and 002 (and its sub-trials), securing convictions,[65] more recently, the Court has been marred by vehement disagreements between its national and international staff regarding the future of Cases 003 and 004.[66]

These criticisms are unsurprising, as notwithstanding the ‘super-majority’ required for affirmative decisions, the final ‘compromise’ reached in the design of the Court was ‘almost entirely in line with the position taken by the Cambodian Government’.[67] Indeed, Beigbeder posits that while the ECCC is nominally a hybrid court, ‘the majority of national judges and the Cambodian prosecutor of the Chambers have a de jure and de facto pre-eminence over the international judges and other officials’.[68] As De Bertadona argues: ‘without this capitulation on the part of the UN, there would have been no agreement, as the Cambodian Government was unwavering in its refusal to countenance a court in which its nationals were not in the majority’.[69] It seems that the UN considered that ‘a flawed tribunal would be better than no tribunal’.[70]

Moreover, the existence of the Court has been expedient for the Hun Sen government. Firstly, it has assisted Cambodia in obtaining international aid.[71] But more crucially, it has also helped establish Hun Sen’s desired political narrative: that his government overthrew the KR and rescued the Cambodian people.[72] The Court has thus likely diverted attention ‘from accusations of ongoing corruption and human rights’.[73] As McCargo suggests, the ageing accused provide ‘a convenient set of domestic scapegoats for the shortcomings of the current government’.[74] Moreover, ‘by demonstrating an ability to undermine the goals of the tribunal’s international backers, Hun Sen may prove able further to entrench his power base and secure his own standing’.[75] Thus, unfortunately, the value of the ECCC transitional justice mechanism is compromised; though holding KR leaders to account, it may be simultaneously curtailing accountability for the ongoing governmental disregard for human rights.[76]

Nevertheless, the Court also presents problems for the Hun Sen regime. While the Cambodian government was largely supportive of Cases 001 (Duch) and 002, it has been unwavering in its opposition to Cases 003 and 004.[77] According to the Cambodian government, these cases fall outside the limited jurisdiction of the ECCC and should therefore be dropped. Publically, Hun Sen has claimed that the prosecution of the cases could lead to ‘civil war’,[78] while the National Co-Prosecutor, has stated that the prosecution of Case 003 would lead to ‘domestic political disruption and serious potential social unrest’.[79]

Some believe that the pushback reflects a concern that Hun Sen, a former lower level KR cadre, may be implicated. Indeed, reporting on Cases 003 and 004 has included numerous remarks referring to Hun Sen’s KR past.[80] However, Ainley argues that it is more likely that the Cambodian leader has other concerns. Firstly, Ainley contends that the implication of senior ex-KR politicians or officials ‘will undermine [Hun Sen’s] regime and disrupt his claims to have led a movement that saved Cambodians from the KR’.[81] Secondly, Ainley continues, the continuing operation of the ECCC could generate ‘unwelcome interest’ in the support the KR received from China – ‘once the KR’s major patron’.[82]

D   Looking forward

The story of the ECCC is not yet finished. Hence it is probable that we must wait for the Court to conclude its proceedings to be able to fully assess the extent to which its political context has hamstrung its capacity to deliver accountability, and to what extent ‘it was in the interest of justice to give [a potentially] undeserved international flavour to an essentially national court’.[83] Recently, in November 2017, the International Co-Prosecutor put forth its Final Submission on Case 003, recommending that charges be pursued.[84] While the National Co-Prosecutor has disagreed with this vehemently, the established procedure means that the case will continue to investigation. Here, notwithstanding Court’s salient flaws, the super-majority rule can clearly be seen to be rebuffing domestic interference.

However, unwavering governmental pressure means that the future of Cases 003 and 004 remains uncertain.[85] Coupled with the fact that the Court is over-budget and over-schedule, there is a very real possibility that the remaining cases may be dropped.[86] It is likely that the fate of the remaining cases will become a key issue over which the legacy of the Court will be judged. According to former International Co-Prosecutor Robert Petit, the completion of these cases ‘represent[s] a minimum by which the ECCC could be said to have delivered as much justice as it could’.[87] And as such, ‘should they not proceed in accordance with the evidence and the law … some may well conclude that in the end, politics won over justice.’[88]

V   Connecting With Cambodians

A   Connecting with Victims

In recent years ‘justice for victims’ has become central to the purpose of mass crimes trials,[89] with both international and hybrid tribunals increasingly considering it as the rationale for their mandate.[90] As the prosecution stated to the International Criminal Court (ICC) of Prosecutor v Katanga and Chui, their ‘mandate is justice; justice for the victims’.[91] Accordingly, victims’ rights, interests, and redress are now considered by many scholars as the ‘dominant commitment of international criminal justice’.[92]

Indeed, the role of victims strikes at the heart of transitional justice processes, as it concerns the question of ‘how to reconcile restorative and retributive elements of justice in trials of mass crimes’.[93] And as such, ‘[i]ts ambition to promote forgiveness, healing and understanding’ has been regarded as an important improvement in the reconciliatory aspects of internationalised trials,[94] and as an important progression from the predominantly retributive character of earlier trials.[95] Given the centrality of justice for victims in contemporary understandings of transitional justice, victims’ rights and moral reparations ‘provide a yardstick against which the fulfilment of national reconciliation can be measured’.[96]

Emphasis on victims is perceived as a key strength of hybrid tribunals such as the ECCC. As Ciorcari and Heindel explain:

Victims can more easily observe or participate in the proceedings, which offer them an opportunity to engage in truth-telling, contribute to the search for justice, and otherwise seek empowerment and a degree of personal and collective reconciliation.[97]

Ip argues that victims’ rights and the ‘overriding objective of achieving national reconciliation’ should be given priority as firstly ‘the victims under the KR regime have the greatest stake in the outcome of the trials, given the grave and widespread victimisation of the Cambodian people’, and secondly, because ‘the importance of national reconciliation as an end can be attributable to the peculiar cultural and religious practice of Cambodian society’.[98] As an almost exclusively Buddhist country, Cambodians generally favour reconciliation over retribution, and as such victim participation and moral reparations have been particularly popular at the ECCC.[99]

1   ECCC’s Victim Participation Scheme

The role that victims play in Court proceedings has been considered ‘one of the major innovations and unique elements of the ECCC’.[100] Significantly, in this regard, the Court operates as ‘a criminal tribunal, with its formal rules of procedure and focus on retributive justice’ in concert with restorative justice principles as ‘a quasi-truth and reconciliation commission, with its more flexible approach to participatory rights for victims and focus on reconciliation’.[101]

As a former French colonial territory, Cambodia operates under a system of civil law. Accordingly, under Cambodian domestic law ‘victims may file charges against an individual, participate as witnesses for the Court and participate as civil parties in criminal proceedings’.[102] This may be contrasted with the comparatively restricted role given to victims in common law proceedings, wherein they may only participate in the trial as witness, or after the trial through impact statements.[103] However, civil party participation was not envisaged in the 2003 UN-Cambodian Framework, nor was it included in its establishing law in 2004.[104] This was not an oversight. As David Scheffer, the U.S. Ambassador-at-Large for War Crimes who had helped negotiate the Framework Agreement explained:

The victims’ numbers are simply too colossal and the mandate and resources of the ECCC far too limited to address the individual needs, including the award of reparations, for so many victims.[105]

Reportedly, most international judges at the ECCC shared similar concerns.[106] Nevertheless, there was an expectation from many NGOs and members of civil society that the ECCC’s mandate to apply Cambodian law necessitated the inclusion of civil parties, and subsequently, the role of civil parties within ECCC proceedings was crafted in the drafting of its Internal Rules, ‘designed from scratch by independently acting judges’.[107] Unsurprisingly, the unpreparedness of the ECCC in dealing with civil parties has left the Court vulnerable to resource constraints.[108] Through a ‘gradual learning curve’ the Court has managed to adapt its approach to civil parties.[109] In doing so, it has substantially restricted its victim participation scheme. But whilst such changes were likely necessary, ‘there is a general consensus that too much was promised too early and then taken away’.[110]

2   The Role and Rights of Civil Parties

In addressing the issue of civil parties, the ECCC has been faced with a decisive dilemma – ‘how to promote robust victim participation without compromising undue efficiency or prejudicing the proceedings against the accused’.[111] The number of victims of the KR was always going to have major ramifications on the capacity of the ECCC to effectively administer justice.[112] Unfortunately, the unpreparedness of the Court in confronting this challenge has resulted in an inconsistent jurisprudence on civil party admissibility.

(a)   Determining Victimhood

To qualify for civil party status, applicants must have been victim to crimes within the jurisdiction of the ECCC; that is, they must demonstrate that the injury suffered is ‘a direct consequence of at least one of the crimes alleged against … [a] Charged Person’.[113] Departing from the ICC definition of victims, being those whose ‘personal interests’ have been affected, the ECCC requires victims to have suffered actual personal injury, which may be ‘physical, material or psychological’ in nature.[114] Victims’ participatory rights may only be denied if their application lacks adequate certainty or if their participation would be ‘inconsistent with international standards’.[115]

In Duch, the Trial Chamber (TC) held that parties to the proceedings were ineligible, as they had not suffered harm that was directly attributable to the crimes of the accused.[116] The CIJs have sought to impose even greater restrictions, though their reasoning was rejected by the TC.[117] Contrastingly, in Case 002, the PTC took a broad approach to civil party status, finding that applicants were not required to directly link the harm they suffered with specific crimes site because the mass atrocities allegedly committed by the accused were committed ‘in a joint criminal enterprise together and with others against the population and throughout the country’.[118] The PTC also interpreted psychological injury broadly, presuming that injury to direct victims translated to psychological injury for other group or community members.[119] This approach resulted in almost 4000 civil parties joining Case 002. It accordingly was criticised as overly permissive[120] and has led to substantial procedural challenges which shall be explored below. Notwithstanding, the constant flux of the scope of victimhood illustrates the inconsistency of the Court’s approach to civil parties, which has been ‘marked by constant amendments, re-amendments and reinterpretations’.[121]

(b)   Limiting Civil Parties

Civil parties may participate in Court proceedings by ‘supporting the prosecution’ to seek ‘collective and moral reparations’.[122] The Internal Rules also grant civil parties several participatory rights; civil parties may: request investigation,[123] lodge appeals,[124] call witnesses,[125] access the case file,[126] respond to preliminary objections,[127] question the accused,[128] observe,[129] make written submissions,[130] and make closing arguments.[131] In contrast to the ICC, where victims may only participate in those parts of proceedings where ‘their personal interests are affected’,[132] at the ECCC, accepted civil parties can ‘participate in all criminal proceedings’, and have similar rights to those of the accused. [133]

Yet it has been necessary to balance these expansive rights with those of the accused, particularly the right to the presumption of innocence and trail without undue delay.[134] As de Hemptinne explains, without adequate control, the enormous number of victims in the trial of mass crimes could result in proceedings ‘last[ing] indefinitely’.[135] Further, considering the magnitude of victims, the emotive nature of the damages suffered could ‘interfere with the smooth conduct of trials and the rights of the accused, as well as the search for truth’.[136]

These issues were obvious in Duch. While only 90 civil parties participated in proceedings, confusion and repetitive question from civil party representatives significantly hampered the speed of the trial.[137] The Court subsequently limited the scope of civil party participation to accommodate for the thousands of civil parties that had been accepted for Case 002. Without these changes, Herman postulates, ‘the civil party system could have completely collapsed’.[138] These changes included eliminating each party’s individual right to speak, as well as removing their freedom to select their own legal representation.[139] While change was likely essential, the restrictions ‘reduced the robustness of [the CPA] mechanism, making the victims’ role look less like that of a full party and more like a participant’.[140]

The Court also announced in 2010 that civil parties would be consolidated into a single group, represented by two lead co-lawyers – one international and one Cambodian.[141] One key issue has been that civil lawyers, now unable to represent their clients in court, have become ‘dependent on the good will of the lead co-lawyers to permit them to act’ and are subject to additional time pressures.[142] A leading civil party lawyer thus criticised the ECCC for not being interested in ‘having participation rights performed by civil lawyers, who themselves have … working relationship[s] with the civil parties’.[143] Nevertheless, the need for change was widely acknowledge, and led to a ‘less chaotic courtroom’ with greatly needed structure and organisation.[144] By consolidating CPAs, the Court has been better equipped to ‘construct ‘a general national narrative’.[145] However, this has ‘come at the cost of the personal ones’.[146] Thus while the Court may have compromised its responsibility to individual victims, this trade-off has helped ensure it fulfils its obligations to victims collectively.[147]

(c)   Reparations

While the UN Group of Experts recommended that victims be awarded financial reparations, the Court ultimately settled on ‘moral and collective reparations’ for KR victims that were ‘intended to by symbolic rather than compensatory’.[148] This was due to numerous financial and legal concerns, including the fact that each accused would likely be found indigent (which has proven to be the case in the ensuing verdicts).[149]

In Duch, civil party applicants proposed that such reparations include initiatives such as memorialisation, educational programs and provision of medical care. However, the Court determined that such requests were ‘outside the competence of the Court or lacked specificity’, and instead merely ordered the publication and dissemination of the names of the victims, along with statements of apology by the accused.[150] This approach was reaffirmed on appeal by the Supreme Court Chamber, which stated that the Court did not have jurisdiction to award reparations that would require ‘an active involvement of the Cambodian authorities […] to be realised’.[151]

The meagreness of these reparations was met with outrage by the civil parties, and the Court was subsequently criticised for its lack of imagination and creativity.[152] As Judge Cartwright has said:

The process of participation and the seeking of reparations was, to my mind, most unsatisfactory … After working through a complex, time-consuming and traumatic process … the victims found that the Trial Chamber had no jurisdiction to order anything apart from formal recognition in the judgement.[153]

Officers of the Court have argued, however, that this is outside the scope of their mandate, given the intention that the Court’s reparations be symbolic.[154] Unfortunately, this has not been effectively communicated to victims, whose expectations of reparations are largely divorced from reality.[155] Indeed, for most Cambodians, ‘many of whom live in extreme poverty, the idea of spending millions of dollars to prosecute a handful of octogenarians thirty years after the fall of the [KR] is unfathomable’, and as such, ‘[m]any assume that, if there is so much money available to be spent on the trials, each victim who participates at the court can expect at least some amount of personal compensation for his or her suffering’.[156]

Notwithstanding these shortcomings, the Court has improved and adapted regarding reparations. Firstly, the Court has improved in its communication and the management of expectations of civil parties.[157] And secondly, it has begun to broaden its approach and creativity with regard to reparations actually awarded. In Case 002/01 for example, the judgment granted eleven out of thirteen reparation requests. These included requests for self-help programs, memorialisation, and educational initiatives to be funded with the assistance of third party donors.[158]

B   Connecting with the Wider Cambodian Community

One of key justifications for hybrid tribunals is proximity to survivor populations.[159] This strength, however, may also be a weakness if not properly capitalised upon. As the Office of the High Commissioner for Human Rights argues, hybrid court may be ‘largely irrelevant unless there is a robust outreach program that informs the public about its activities’.[160]

In the Courts’ Internal Rules, outreach functions and responsibilities were divided amongst two offices: the Victim’s Unit (subsequently renamed the Victim Support Section (VSS)) and the Public Affairs Section (PAS).[161] The mandates of the two offices overlap; as already discussed, the VSS is primarily concerned with court proceedings, focussing on assisting civil parties and complainants, the PAS, on the other hand, concerns itself with the ‘macro’ aspects of outreach.[162] It therefore focuses on connecting the general population to the ECCC, and disseminating information to relevant donors and NGOs.[163]

Unfortunately, outreach at the ECCC has faced several challenges. Given the complexity of ECCC proceedings, it is often difficult for ordinary Cambodians to understand and participate in the judicial process.[164] Moreover, the majority of Cambodians reside in rural areas and commonly have inadequate access to information.[165] Difficulties surrounding communication are compounded by the ‘risks of political discord and ownership struggles’ that beleaguer many aspects of the hybrid system.[166] Furthermore, notwithstanding recent trends toward victim-centrism, hybrid courts’ ‘perceived institutional priorities have consistently favoured core judicial functions, giving short shrift to programs that share their work with the public’.[167]

Consequently, outreach efforts at the ECCC were given low priority and inadequate funding, resulting in Cambodian NGOs becoming the key promulgators of the ECCC.[168] Their work has included producing and disseminating various print, film and radio materials, and engaging rural communities through outreach sessions and public forums.[169] When conducting these activities, local NGOs enjoy several comparative advantages ‘such as having long-established relations of trust with regional communities and extensive networks in provincial areas’.[170] Because of their established resources, NGO programs are often more affordable and effective than their ECCC counterparts.[171] Unfortunately, the ECCC has struggled to capitalise on the strategic advantages offered by partnering with NGOs. While civil society groups ‘have been conducting extensive outreach efforts for the past several years … coordination between NGOs and the Court has been somewhat limited’.[172] The closest cooperation has been between the VSS and NGOs. For example, a 2010 report by the ICTJ found that NGOs facilitated ‘84% the victim information forms for complainants and civil parties’.[173] Similarly, NGOs followed up with most civil parties from Duch, and created a civil party network for Case 002.[174] However, a lack of coordination with and leadership from the Court results in the promulgation of an inconsistent message, with NGOs often crafting their own message and explanation of Court procedures.[175] Consequently, there is a constant risk ‘that understandings of victims’ participation differ in the community, sometimes creating expectations that cannot be met’.[176]

In recent years, however, in comparison to other hybrid and international tribunals, the ECCC has conducted substantial outreach activities. One key example is its regular arranged public visits and free transport to the Court.[177] During the Duch trial, which started in 2009 and concluded in 2011, a striking 111,543 people visited the ECCC, the vast majority of whom were Cambodians who had utilised the Court’s free transport services.[178] In addition to those that attended the trial, nearly three million Cambodians – 20 per cent of the national population – viewed ‘Duch on Trial’, a television show discussing and summarising key developments in the case.[179] The results of this outreach had clear effects in the national population; according to research done by Berkeley University, the number of adult Cambodians with no knowledge of the ECCC decreased from 39 per cent to 25 per cent between 2008 and 2010.[180] This success, however, is tempered by the lack of evidence demonstrating any in depth understanding of the ECCC’s complex processes.[181] Nevertheless, as Ainley points out:

even if people did not see much of the trial or did not understand the technical argument or the context, they did still see Duch in the dock, which many found hard to believe after the KR enjoyed more than thirty years of impunity and a not inconsiderable amount of power within Cambodia.[182]

Consequently, the ECCC has generated momentum ‘towards a broader societal debate’.[183] For example, the KR period is now compulsory within Cambodian school curriculums.[184] Manning views this sceptically, arguing that ‘outreach attempt … to disarm and reconstitute memorial accounts that conflict with the officially sanctioned reading of Cambodia’s past political violence’.[185] This reinforces Gidley’s conception of the Cambodian transitional justice experience as ‘illiberal’ transitional justice.[186] Nevertheless, the Court has helped to destigmatise the KR era and help Cambodian society process its collective traumatic past. As one victim stated, ‘the whole idea is that you create narratives, build an archive, a record to the Cambodian history that can be read by family members, their children and the world’.[187] Here, the Court has ably played the role of a truth-telling mechanism, ‘recalling the genocide and its authors [and] the suffering of the victims’.[188]

VI Conclusion

The ECCC is undoubtedly an imperfect institution. Indeed, given the turmoil and politicking that surrounded its creation, ‘the most significant and unexpected success of the ECCC is the fact that it is functioning at all’.[189] As such, the Court should be accordingly judged with respect to its alternative – that no internationally recognised accountability mechanism existed at all.

While the Court has continually been plagued by allegations of domestic interference, and political posturing by the Cambodian government, it has also delivered meaningful outcomes to ordinary Cambodians. Notwithstanding some ‘teething’[190] problems and mismanagement of expectations, the ECCC’s civil party system has allowed an unprecedented level of victim participation within its proceedings. Moreover, its outreach program, though imperfect, has facilitated access to accountability in action for millions of Cambodians, and assisted the wider society in coming to terms with its past trauma. The legacy of the ECCC cannot be fully judged until the end of its proceedings. However, from a transitional justice perspective, one thing can be certain: that ‘[t]he interests of [the] victims and their survivors is to have justice, even if it [has been] delivered by a flawed court’.[191]

[1] Kevin Ponniah, ‘Remembering the Fall of Phnom Penh’ The Diplomat (online) 17 April 2015 < https://thediplomat.com/2015/04/remembering-the-fall-of-phnom-penh/>.

[2] Kevin Ponniah, ‘Remembering the Fall of Phnom Penh’ The Diplomat (online) 17 April 2015 < https://thediplomat.com/2015/04/remembering-the-fall-of-phnom-penh/>.

[3] Ibid.

[4] Kirsten Ainley, ‘Transitional Justice in Cambodia: The Coincidence of Power and Principle’ in Renée Jeffery and Hun Joon Kim (eds) Transitional Justice in the Asia-Pacific (Cambridge University Press, 2013), 125.

[5] Ibid 126.

[6] David Chandler, A History of Cambodia (Boulder Colorado: Westview Publishers, 2008), 259.

[7] Ainley, above n XX, 125.

[8] Thorsten Bonacker, Wolfgang Form and Dominik Pfeiffer, ‘Transitional Justice and Victim Participation in Cambodia: A World Polity Perspective’ (2011) 25(1) Global Society 113, 120.

[9] Samantha Hawley ‘Cambodia marks 40 years since the fall of Phnom Penh to Pol Pot’s genocidal KR’ ABC News (online) < http://www.abc.net.au/news/2015-04-17/cambodia-40-years-since-fall-of-phnom-penh-to-khmer-rouge/6402226>.

[10] Judy Oueng, ‘Expectations, Challenges and Opportunities at the ECCC’ in Simon M. Meisenberg and Ignaz Stegmiller (eds) The Extraordinary Chambers in the Courts of Cambodia: Assessing their Contribution to International Criminal Law (Asser Press, 2016), 114-115.

[11] Agreement between the United Nations and the Royal Government of Cambodia Concerning the Prosecution under Cambodian Law of Crimes Committed During the Period of Democratic Kampuchea, signed 6 June 2003 (entered into force 29 April 2005) (‘UN-Cambodia Agreement’).

[12] Law on the Establishment of Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed During the Period of Democratic Kampuchea (Cambodia), enacted 27 October 2004 (ECCC Law).

[13] ECCC Law Preamble.

[14] International Centre for Transitional Justice, What is Transitional Justice? (2009) <https://www.ictj.org/sites/default/files/ICTJ-Global-Transitional-Justice-2009-English.pdf>.

[15] Naomi Roht-Arriaza, ‘The New Landscape of Traditional Justice,’ in Naomi Roht-Ariaza and Javier Mariezcurrena (eds) Transitional Justice in the Twenty First Century (Cambridge University Press, 2006), 2.

[16] Ruti G. Teitel, ‘Transitional Justice Genealogy,’ (2003) 16 Harvard Human Rights Journal) 69, 69.

[17] Renee Jeffery and Hun Joon Kim, ‘Introduction New Horizons: Transitional Justice in the Asia-Pacific’ in Renée Jeffery and Hun Joon Kim (eds) Transitional Justice in the Asia-Pacific (Cambridge University Press, 2013), 4.

[18] Bronwyn Anne Leebaw ‘The Irreconcilable Goals of Transitional Justice’ (2008) 30 Human Rights Quarterly 95, 101.

[19] The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies: Report of the Secretary-General, UN Doc S/2004/616 (23 August 2004) [8].

[20] International Centre for Transitional Justice, above n XX, 1.

[21] Ibod..

[22] Rosemary Fowler, ‘Lessons from Cambodia: Towards A Victims-Oriented Approach to Contextual Transitional Justice’ (Dissertation, University of Otago, 2016) 7. See also Leebaw, above n XX, 97.

[23] Leebaw, above n xx, 102,

[24] Ibid.

[25] Paul Gready and Simon Robins, ‘From Transitional to Transformative Justice: A New Agenda for Practice’ (2008) 8 International Journal of Transitional Justice 339, 344.

[26] The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies: Report of the Secretary-General, UN Doc S/2004/616 (23 August 2004) [8].

[27] Fowler, above n XX, 7.

[28] Hannah Bertelmen, ‘International Standards and National Ownership? Judicial Independence in Hybrid Courts: The Extraordinary Chambers in the Courts of Cambodia’ (2010) 79 Nordic Journal of International Law 341, 342.

[29] Daphna Shraga, ‘The Second Generation UN-Based Tribunals: A Diversity of Mixed Jurisdictions’ in Cesare P.R. Romano, André Nollkaemper, and Jann K. Kleffner (eds.), Internationalized Criminal Courts Sierra Leone, East Timor, Kosovo and Cambodia (Oxford University Press, United States, 2004) 15.

[30] Bertelmen, above n XX, 342.

[31] Ibid 370-371.

[32] John D. Ciorciari and Anne Heindel, Hybrid Justice: The Extraordinary Chambers in the Courts of Cambodia (University of Michigan Press, 2014) 371.

[33] Suzannah Linton, ‘Putting Cambodia’s Extraordinary Chambers into Context’ (2007) 11 Singapore Yearbook of International Law 195, 204-08, 223-26.

[34] Ainley, above n XX, 126.

[35] Ainley, above n XX, 126.

[36] Robert Petit, ‘Lawfare and International Tribunals: A Question of Definition? A Reflection on the Creation of the “KR Tribunal”’ (2010) 43 Case Western Reserve Journal of International Law 189, 191.

[37] Ainley, above n XX, 145.

[38] Ibid.

[39] Ibid.

[40] Ibid.

[41] Kassie Neou and Jeffrey C. Gallup, ‘Human Rights and the Cambodian Past: In Defense of Peace Before Justice’ (1997) 1(8) Human Rights Dialogue 1, 1.

[42] Ibid.

[43] Helen Jarvis, ‘Trials and Tribulations: The Long Quest for Justice for the Cambodian Genocide’ in Simon M. Meisenberg and Ignaz Stegmiller (eds) The Extraordinary Chambers in the Courts of Cambodia: Assessing their Contribution to International Criminal Law (Asser Press, 2016), 14.

[44] Report of the Group of Experts for Cambodia Pursuant to General Assembly Resolution 52/135, UN Doc S/1999/231, A/53/850 (16 March 1999) [129].

[45] Ibid [110].

[46] Petit, above n XX, 193.

[47] Ainley, above n XX,148.

[48] Cited in Ainley, above n XX, 148.

[49] Petit, above n XX, 193.

[50] ref

[51] Petit 195

[52] Guido Acquaviva, ‘New Paths in International Criminal Justice’, (2008) 6 Journal of International Criminal Justice 129, 132.

[53] Petit 196

[54] Ibid.

[55] David Scheffer, ‘The Extraordinary Chambers in the Courts of Cambodia in M. Cherif Bassiouni (ed) International Criminal Law (Martinus Nijhoff Publishers, 3^rd ed, 2008) vol 2, 246.

[56] ECCC Law Preamble.

[57] Acquaviva, above n XX, 130.

[58] Ciorciari and Heindel, Hybrid Justice, above n XX, 376.

[59] Jarvis, Helen, ‘Trials and Tribulations: The Long Quest for Justice for the Cambodian Genocide’ in Simon M. Meisenberg and Ignaz Stegmiller (eds) The Extraordinary Chambers in the Courts of Cambodia: Assessing their Contribution to International Criminal Law (Asser Press, 2016) 22.

[60] Ibid.

[61] Scheffer, above n XX, 246.

[62] John Sifton, ‘’The Cambodian Conundrum: What is Wrong With Hun Sen?’ The Diplomat (online) 26 August 2017 < https://thediplomat.com/2017/08/the-cambodia-conundrum-what-is-wrong-with-hun-sen/>.

[63] Ainley, above n XX 152.

[64] Shannon Maree Torrens, ‘Allegations of Political Interference, Bias and Corruption at the ECCC’ in Simon M. Meisenberg and Ignaz Stegmiller (eds) The Extraordinary Chambers in the Courts of Cambodia: Assessing their Contribution to International Criminal Law (Asser Press, 2016) 49.

[65] Rachel Killean, ‘Procedural Justice in International Criminal Courts: Assessing Civil Parties’ Perceptions of Justice at the Extraordinary Chambers in the Courts of Cambodia’ (2016) 16 International Criminal Law Review 1, 11.

[66] Oeung, above n XX, 171.

[67] Sylvia de Bertodano, ‘Were There More Acceptable Alternatives to the Iraqi High Tribunal?’ (2007) 5 Journal of International Justice 294, 296.

[68] Yves Beigbeder, International Criminal Tribunals: Justice and Politics (Palgrave McMillan, 2011) 169.

[69] Sylvia de Bertodano, ‘Were There More Acceptable Alternatives to the Iraqi High Tribunal?’ (2007) 5 Journal of International Justice 294, 296.

[70] Beigbeder, above n XX, 169.

[71] Ainley 149

[72] Ainley 149

[73] Ainley 149

[74] Duncan McCargo, ‘Politics by Other Means? The Virtual Trials of the KR Tribunal’ (2011) 87 (3) International Affairs 613, 617.

[75] Ibid.

[76] Ainley, above n XX, 149.

[77] Open Society Initiative, ‘Recent Developments at the Extraordinary

Chambers in the Courts of Cambodia: Threat to Permanently Stay Cases 003, 004 and 004/2A’ (2017) Open Society Foundation < https://www.opensocietyfoundations.org/sites/default/files/recent-developments-eccc-june-2017-20160614.pdf>.

[78] Kuch Naren, ‘Hun Sen Warns Of Civil War If ECCC Goes Beyond ‘Limit’, Cambodia Daily (online) 27 February 2015 < https://www.cambodiadaily.com/news/hun-sen-warns-of-civil-war-if-eccc-goes-beyond-limit-78757/>.

[79] Extraordinary Chambers in the Courts of Cambodia, ‘Statement by the Office of the National Co-Prosecutor on Case 003’ (30 November 2017) <https://www.eccc.gov.kh/sites/default/files/media/Press%20Release%20National%20Co-Prosecutor%20on%20Case%20003%20ENG.pdf>.

[80] Ek Madra, ‘Cambodia PM rejects wider KR trials’, Reuters (online) 31 March 2009 <https://www.reuters.com/article/us-cambodia-rouge/cambodia-pm-rejects-wider-khmer-rouge-trials-idUSTRE52U1IZ20090331>

[81] Ainley, above n XX, 150.

[82] Ibid.

[83] Beigbeder

[84] Ref

[85] Open Society Initiative, above n XX.

[86] Petit, above n XX, 199.

[87] Ibid.

[88] Ibid.

[89] (Conor McCarthy ‘Victim redress and international criminal justice’ (2012) 10 Journal of International Criminal Justice 351.)

[90] Elisa Hoven and Saskia Scheibel ‘‘Justice for victims’ in trials of mass crimes: Symbolism or substance?’ (2015) 21(2) International Review of Victimology 161, 162; Maria Elander, ‘The Victim’s Address: Expressivism and the Victim at the Extraordinary Chambers in the Courts of Cambodia’ (2013) 7 The International Journal of Transitional Justice 95, 95.

[91] Quoted in McCarthy

[92] Mark Findlay, ‘Activating a victim constituency in international criminal justice’ (2009) 3 The International Journal of Transitional Justice 183, 204.

[93] Hoven and Scheibel, above n XX, 162.

[94] Ibid.

[95] Silvia A. Fernandez de Gurmendi and Hakan Friman, ‘The rules of procedure and evidence of the International Criminal Court’ (2001) 3 Yearbook of International Humanitarian Law 289, 312.

[96] Ken Gee-kin Ip, ‘Fulfilling the Mandate of National Reconciliation in the Extraordinary Chambers in the Courts of Cambodia (ECCC) – An Evaluation through the Prism of Victims’ Rights’ (2013) 13 International Criminal Law Review 865, 870

[97] Ciorciari and Heindel, Hybrid Justice, above n XX, 202.

[98] Ip, above n XX, 868.

[99] Ian Harris, ‘Onslaught on Beings: A Theravada Buddhist Perspective on Accountability for Crimes Committed in the Democratic Kampuchea Period,’ in Jaya Ramji and Beth van Schaack (eds), Bringing the KR to Justice: Prosecuting Mass Violence before the Cambodian Courts (E. Mellen Press, 2005).

[100] David S. Sokol, ‘Reduced victim participation: a misstep by the Extraordinary Chambers in the Courts of Cambodia’ (2011) 10(1) Washington University Global Studies Law Review 167

[101] Brianne N. McGonigle, ‘Two for the price of one: Attempts by the Extraordinary Chambers in the Courts of Cambodia to combine retributive and restorative justice principles’ (2009) 22 Leiden Journal of International Law 127, 129.

[102] Ibid.

[103] Ibid, 137.

[104] ECCC Law

[105]  Scheffer, above n XX, 253.

[106] Ciorciari and Heindel, Hybrid Justice, above n XX, 205.

[107] Ibid.

[108] John D. Ciorciari and Anne Heindel, ‘Experiments in International Criminal Justice: Lessons from The Khmer Rouge Tribunal’ 35 Michigan Journal of International Law 369, 426.

[109] Christoph Sperfeldt, ‘From the Margins of Internationalized Criminal Justice: Lessons Learned at the Extraordinary Chambers in the Courts of Cambodia’ (2013) 11 Journal of International Criminal Justice 1111, 1117.

[110] Ciorciari and Heindel, Hybrid Justice, above n XX, 216.

[111] Ciorciari and Heindel, Hybrid Justice, above n XX, 211.

[112] Ibid.

[113] Extraordinary Chambers in the Courts of Cambodia, Internal Rules (Ver 9) (adopted 16 January 2015), r 23bis (1)(b)) (‘ECCC Internal Rules’).

[114] Ibid.

[115] David Boyle, ‘The Rights of Victims: Participation, Representation, Protection, Reparation’, (2006) 4 Journal of International Criminal Justice 307, 308.

[116] Prosecutors v. Kaing Guek Eav alias Duch, Case No. 001/18-  7-  2007/EC CC/ TC, Judgment, ¶¶ 645–  49 ( July 26, 2010)

[117] Ciorciari and Heindel, Hybrid Justice, above n XX, 215.

[118] Decision on Appeals Against Orders of the Co- Investigating Judges on the Admissibility of Civil Party Applications, Extraordinary Chambers in the Courts of Cambodia, Office of the Co-Investigating Judges, Criminal Case File No. 002/19-9-2007-ECCC/OCIJ (24 June 2011) [29].

[119] Ibid [29].

[120] Ciorciari and Heindel, Hybrid Justice, above n XX, 215.

[121] Rudina Jasini ‘Victim Participation and Transitional Justice in Cambodia: the case of the Extraordinary Chambers in the Courts of Cambodia (ECCC)’ (Research Report, Impunity Watch, April 2016), 26 < https://www.impunitywatch.org/docs/IW_Report_Victim_Participation_in_Cambodia_(April_2016).pdf >.

[122] Extraordinary Chambers in the Courts of Cambodia, Internal Rules (Ver 9) (adopted 16 January 2015) r 23(1).

[123] Ibid, r 55(1).

[124] Ibid, r 74(4).

[125] Ibid, r 80(2).

[126] Ibid, r 86.

[127] Ibid, r 89(2).

[128] Ibid, r 90(2).

[129] Ibid, r 91(1).

[130] Ibid, r 92.

[131] Ibid, r 94(1)(a).

[132] Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 90 (entered into force 1 July 2002).

[133] Decision on Civil Party Participation in Provisional Detention Appeals, Pre-Trial Chamber, Extraordinary Chambers in the Courts of Cambodia, Criminal Case File No 002/19-9-2007-ECCC/OCIJ (20 March 2008) [36].

[134] ECCC Law art. 35 new(c).

[135] Jerome de Hemptinne, ‘The Creation of Investigating Chambers at the International Criminal Court (2007) 5 Journal of International Criminal Justice 402, 412.

[136] Jerome de Hemptinne, ‘The Creation of Investigating Chambers at the International Criminal Court (2007) 5 Journal of International Criminal Justice 402, 412.

[137] Johanna Herman, ‘Realities of Victim Participation: The civil party system in practice at the Extraordinary Chambers in the Courts of Cambodia (ECCC)’ (2013) 16(4) Contemporary Justice Review 461, 466.

[138] Ibid.

[139] Ciorciari and Heindel, Hybrid Justice, above n XX, 216.

[140] Ibid.

[141] Herman, above n XX, 266.

[142] Ibid.

[143] Silke Studzinsky, ‘Victim Participation before the Extraordinary Chambers in the Courts of Cambodia’ (2011) 6 Zeitschrift fur Internationale Strafrechotdogmatik 887, 890.

[144] Herman, above n XX, 466.

[145] Jasini, above n XX, 6.

[146] Ibid.

[147] Ibid.

[148] Ibid, 40.

[149] Ibid, 40.

[150] Herman, above n XX, 467.

[151] 1 Duch Summary of Appeal Judgment, available at: http://www.eccc.gov.kh/sites/default/files/articles/03022012Summary-Eng.pdf. Duch was the deputy, then chairman of S-21 (Tuol Sleng) prison in Phnom Penh for some three years. In that role, he oversaw the torture and execution of at least 12,272 individuals.

[152] Herman, above n XX, 467.

[153] Silvia Cartwright (ECCC Trial Chamber Judge), ‘International Criminal Trial. A promise fulfilled?’ (The 2011 Annual Hawke Lecture, Adelaide 9 June 2011) <http://w3.unisa.edu.au/hawkecentre/ahl/2011AHL_Cartwright.pdf>.

[154] Jasini, above n XX, 42.

[155] Ibid.

[156] James P. Bair, ‘From the Numbers Who Died to Those who Survived: Victim Participation in the Extraordinary Chambers in the Courts of Cambodia’ (2009) 31 University of Hawaii Law Review 507, 537.

[157] Jasini, above n XX, 42.

[158] Prosecutors v. Nuon Chea and Khieu Samphan, Extraordinary Chambers in the Courts of Cambodia, Trial Chamber, Criminal Case No. 002/19-09-2007/ECCC/TC (7 August 2014) [1151-1164].

[159] Ciorciari and Heindel, ‘Experiments in International Criminal Justice’, above n XX, 420.

[160] Office of the High Commissioner for Human Rights, Rule-Of-Law Tools for Post-Conflict States: Maximizing the Legacy of Hybrid Courts (United Nations, 2008), 18 <http://www.refworld.org/docid/47ea6fbb2.html>.

[161] Ciorciari and Heindel, ‘Experiments in International Criminal Justice’, above n XX, 420.

[162] Ibid.

[163] International Centre for Transitional Justice, ‘Outreach Strategies in International and Hybrid Courts’ (Report of the ICTJ-ECCC Workshop, 2010) <https://www.ictj.org/sites/default/files/ICTJ-Outreach-ECCCWorkshop-Report-2010-English.pdf>.

[164] Ibid.

[165] Sperfeldt, Christoph ‘Cambodian Civil Society and the KR Tribunals’ (2008) 39 Georgetown Journal of International Law 150, 159; Sperfeldt, Christoph, ‘Collective Reparations at the Extraordinary Chambers in the Courts of Cambodia’ (2012) 12 International Criminal Law Review 457, 460.

[166] Ibid.

[167] Ciorciari and Heindel, ‘Experiments in International Criminal Justice’, above n XX, 420.

[168] Christoph Sperfeldt, ‘From the Margins of Internationalized Criminal Justice: Lessons Learned at the Extraordinary Chambers in the Courts of Cambodia’ (2013) 11 Journal of International Criminal Justice 1111, 1115.

[169] Ibid, 1116

[170] Ibid.

[171] International Centre for Transitional Justice, above n XX, 11.

[172] Ibid.

[173] Ibid.

[174] Ibid.

[175] Find ref..

[176] Ibid.

[177] Ciorciari and Heindel, ‘Experiments in International Criminal Justice’, above n XX, 421.

[178] Ibid 422.

[179] Ainley, above n XX, 133.

[180] Phuong Pham, Patrick Vinck, Mychelle Balthazard and Sokhom Hean, ‘After the First Trial: A Population-Based Survey On Knowledge And Perception Of Justice And The Extraordinary Chambers In The Courts Of Cambodia’ (Human Rights Centre, University of Berkeley, June 2011), 21.

[181] Ibid.

[182] Ainley, above n XX, 133.

[183] Ibid, 134.

[184] Ibid

[185] Peter Manning, ‘Governing memory: Justice, reconciliation and outreach at the Extraordinary Chambers in the Courts of Cambodia’ (2011) 5(2) Memory Studies 165, 165.

[186] R.A. Gidley ‘Illiberal Transitional Justice: The Extraordinary Chambers in the Courts of Cambodia (PhD Thesis, The Australian National University, 2016).

[187] Jasini, above n XX, 2016.

[188] Beigbeder, above n XX, 169.

[189] Ainley, above n XX, 130.

[190] Mohamed Shahabuddeen, ‘Teething Phase of the ECCC’ (2011) 10 Chinese Journal of International Law 469.

[191] Beigbeder, above n XX, 169.