The Uncertain Relationship between International Criminal Law Accountability and the Rule of Law in Post-Atrocity States: Lessons from Cambodia

Abstract

One of the goals routinely ascribed to international criminal law (“ICL”) prosecutions is the ability to improve the rule of law domestically in post-atrocity states. This Article reassesses the common assumption that the relationship between the pursuit of ICL accountability and improving the rule of law in post-atrocity states is necessarily a linear, wholly positive one. It does so through an analysis of the relationship between the Extraordinary Chambers in the Courts of Cambodia and the rule of law domestically in Cambodia. Through this analysis, this Article highlights the oft-ignored possibility that ICL prosecutions may actually have a mix of positive, nil, and negative effects on the domestic rule of law, at least in the short run. In the Cambodian context, this Article argues that such risk is quite real and arguably, in the process of being realized. These harmful rule of law consequences are most visible when viewed in light of the particularities of Cambodia’s rule of law deficit, which increasingly stems from government practices of subverting the rule of law through means obscured behind façades of legality. The ECCC’s tacit toleration of the Cambodian government’s apparent interference with the Court’s work risks legitimating the notion that the rule of law is mere window dressing, rather than anything of substance in even the most basic, procedural sense.

Keywords: International Criminal Law; Rule of Law; Transitional Justice; Cambodia; Khmer Rouge, Extraordinary Chambers in the Courts of Cambodia (ECCC)