Rebecca Gidley’s research while affiliated with Australian National University and other places

This paper examines mine action in Cambodia and its implications for common conceptions of civil society and transitional justice. The complexities of past Cambodian conflicts and the strained state-civil society relationship at present have led to a complicated legacy of landmines. The collective harm Cambodian people have experienced also blurs the line between victimhood and perpetration of crime, further complicating transitional justice in the Cambodian context. Exploring the link between mine action and transitional justice in Cambodia reveals that civil society organisations involved in mine action are not separate from the state contrary to the common conceptualisation of civil society as autonomous. It also demonstrates that mine action is responding to more complex elements of Cambodian conflicts than the retributive model of transitional justice. The participatory approaches to mine action highlight local agency and active involvement, which are crucial in creating a civil society that encourages an empowered citizenry.

What should be done in the aftermath of gross human rights violations, crimes against humanity, or genocide? This is the central question asked of and posed by transitional justice. In this chapter I examine the origins and definitions of transitional justice to demonstrate its liberal roots. I then turn to the consequences of these assumptions, in the explanations offered for why transitional justice mechanisms are created and the questions that are posed about transitional justice. Next, I discuss the works that are the exception to this trend I have identified in the literature, the works which explicitly reject the liberal bias. Finally, I turn to post-transitional justice and aspects of the literature which address the peculiarities of the timing of the Extraordinary Chambers in the Courts of Cambodia.

This chapter first describes the protracted process of setting up the Extraordinary Chambers in the Courts of Cambodia (ECCC) after 2003 and the problems of corruption that were encountered. I then examine each of the ECCC’s cases, with a focus on their political implications. In Case 001 and Case 002, the defendants, Kaing Geuk Eav, Khieu Samphan, and Nuon Chea, were convicted and sentenced to life in prison. Cases 003 and 004, on the other hand, have been consistently opposed by the Cambodian government. The ECCC is in the process of dropping these cases but it must be done using the correct procedural language. The conflicts that existed between the UN Secretariat and the Cambodian government during the negotiation period recurred during the operation of the ECCC.

Why did the Cambodian government create the Extraordinary Chambers in the Courts of Cambodia (ECCC)? Since the previous chapter showed that it is not for the expected reasons, new explanations are needed in order to explain why the ECCC was created and the outcomes it achieved. The Cambodian government was faced with balancing a series of risks and rewards. Domestically, a tribunal was a chance to shape the narrative of the Khmer Rouge regime and to symbolise the final defeat of the movement. Internationally, legitimacy was the key goal. The model for the ECCC that the Cambodian government secured allowed it to pursue the benefits of international legitimacy but with enough practical control that meant the court did not pose a risk to domestic political supremacy.

This chapter focuses on the period between the end of the Khmer Rouge regime in 1979 and the UN’s engagement in the project of accountability in Cambodia in 1997. During its first years in power, the new government in Phnom Penh, the People’s Republic of Kampuchea (PRK), held a trial, created a museum at Tuol Sleng prison, instituted a historical research commission, and designated a national day of remembrance, all of which contributed to a narrative that attributed the crimes of the regime to only the top leaders and portrayed the PRK and its leaders as the saviours of the nation. In the final section of this chapter I consider Cambodia’s re-entry onto the international stage and the United Nations Transitional Authority in Cambodia peacekeeping mission of the early 1990s.

In this chapter I discuss the process that led to the creation and unique design of the Extraordinary Chambers in the Courts of Cambodia (ECCC), as well as the many delays in the process. After a 1997 letter sent by the Cambodian co-prime ministers requesting assistance and a UN Group of Experts report, the UN Secretariat and the Cambodian government negotiated a model that created a hybrid of national and international systems. The negotiations were fraught with distrust, misunderstandings, and the apportioning of blame. The dominant issue that pervaded these negotiations was the question of the relative power of the UN and the Cambodian government in controlling proceedings. Despite the extensive obstacles, in March 2003, the two sides reached an agreement to establish the ECCC.

The concluding chapter re-examines the incongruities between analyses of transitional justice and the realities of the Extraordinary Chambers in the Courts of Cambodia (ECCC). At the ECCC, rules and procedures were discarded or ignored, particularly by the government, when they were inconvenient. However, what was not discarded was the language of procedure which the Cambodian government and the national judges at the ECCC continued to use to justify their decisions. This book is an exploration of the idea of illiberal transitional justice, a provocation. The conclusion considers the broader implications, what an illiberal transitional justice mechanism would look like in another context, and how existing theories about liberal transitional justice can be adapted for the illiberal context.

Many positive outcomes for both individuals and society are assumed to emerge from the use of transitional justice mechanisms. In this chapter I examine the most important of these goals and posited outcomes: ending impunity, developing the rule of law, promoting democracy, and various aspects of justice and reconciliation. I examine the extent to which each goal is being fulfilled by the Extraordinary Chambers in the Courts of Cambodia (ECCC) and discuss the limitations that occur locally and globally. What becomes apparent from this discussion is that the goals of liberal transitional justice bear little resemblance to the goals or outcomes of the ECCC and that therefore analyses of the ECCC on the basis of the usual transitional justice precepts are unhelpful.