Download This PaperRethinking the Legacy of the ECCC: Selectivity, Accountability, Ownership
Symposium titled ‘The Extraordinary Chambers in Cambodia: Revisiting the Experiment’, forthcoming in the Journal of International Criminal Justice (2020)
15 Pages Posted: 15 May 2020
Date Written: April 1, 2020
Abstract
The Extraordinary Chambers in the Courts of Cambodia (ECCC, or Court) has never enjoyed an enviable reputation, with scholars and activists generally warning against the repetition of a similar experiment in the future. This piece posits that some of the most unfavourable conclusions about the performance and legacy of the Court merit reconsideration. First, some initial problems, such as corruption and administrative malpractice, have been in large part addressed. Second, a number of controversial questions, for example the defence requests to summon high-ranking government officials, have been brought to a dignified close. Third, the length of proceedings appears not to be out of scale when measured against comparable trial records, even less so considering a number of mitigating circumstances. Fourth, government interference, while probably affecting decisions on whom to prosecute (Cases 003 and 004), did not tarnish the overall fairness of the trials that did take place (Cases 001, 002/01, 002/02). Fifth, irrespective of the ultimate fates of Cases 003 and 004, effective investigations have been carried out, casting light on vast swathes of Cambodian history and delivering a limited yet meritorious measure of accountability, one which was hardly imaginable only a few years ago. Sixth, the supermajority decision-making rule, though far from a perfect formula, achieved its basic purposes and, above all, incentivized the co-ownership and acceptance of decisions by both Cambodian and international players, thereby enhancing the Court’s legitimacy, enabling capacity-building and favouring norm penetration.
In conclusion, we maintain that criticism, albeit often legitimate and potentially well-founded, may have been overemphasised against the ECCC, dismissing a model of hybridization that, with some refinements, may bring international justice where greater international control is not a viable option. Its malfunctioning notwithstanding, the Cambodian experiment has borne fruit which otherwise would have likely remained out of reach. It has ensured not only the delivery of credible justice in respect of the most senior perpetrators, but has also catalysed other positive externalities benefitting Cambodian society in the long run.
Keywords: Cambodia, Extraordinary Chambers, ECCC, transitional justice, fairness, interference, prosecutorial discretion, case selection, legacy
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