Reassessing the Rule of Law Legacy of the Khmer Rouge Tribunal

47 Pages Posted: 21 Aug 2023 Last revised: 19 Apr 2024

See all articles by Randle C. DeFalco

Randle C. DeFalco

Widener University - Widener University School of Law

Date Written: 2024

Abstract

The focal point of transitional justice efforts in Cambodia have been recently-completed criminal prosecutions at the Extraordinary Chambers in the Courts of Cambodia (“ECCC”). Like other international criminal justice institutions, the ECCC has been framed as not only a criminal court, but also as an institution capable of helping achieve various transitional justice goals such as improving the rule of law and respect for human rights domestically in Cambodia. This Article identifies troubling connections between the ECCC experience and the Cambodian government’s increasing use of rule by law tactics in recent years. The Article identifies two related ways in which the ECCC experience may have further damaged, rather than helped mend, the rule of law in Cambodia. First, by providing training to Cambodian legal actors beholden to the autocratic government, the ECCC has engaged in a form of “negative capacity-building” by enhancing the abilities of such actors to weaponize Cambodia’s legal system against perceived threats to the dominant Cambodia People’s Party (“CPP”). Second, by playing into the dominant social perception in Cambodia that powerful CPP-aligned actors remain the ultimate arbiters of contentious legal cases, even when producing inconsistent, incompatible outcomes, the Court’s social messaging has lent some legitimacy to rule by law tactics in Cambodia. These negative rule of law outcomes are especially troubling given the authoritarian backsliding Cambodia has recently experienced. Moreover, the potential negative rule of law legacy of the ECCC should serve as a cautionary tale against the notion that international criminal law prosecutions solely produce positive rule of law effects in postatrocity States.

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

Suggested Citation

DeFalco, Randle C., Reassessing the Rule of Law Legacy of the Khmer Rouge Tribunal ( 2024). 45 U. Pa. J. Int’l L. 549 (2024)., Available at SSRN: https://ssrn.com/abstract=4542386

Randle C. DeFalco (Contact Author)

Widener University - Widener University School of Law ( email )

4601 Concord Pike
P.O. Box 7286
Wilmington, DE 19803-0474
United States

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