Beyond the Trials: Continuing the Process of Healing in Cambodia
- Nathan Thomas
- Nov 18, 2024
- 9 min read
Updated: Nov 26, 2024
What is justice when one in every four people has been killed leaving behind a shattered society and two more decades of war? In recognition of the people of Cambodia’s desire for “justice and national reconciliation, stability, peace and security,” the Extraordinary Chambers in the Courts of Cambodia (ECCC) was created to contribute to answering this question. Although the court’s last trial concluded in 2022, the court’s mission has not ended. Assisting survivors, monitoring reparations to victims, and disseminating a message of reconciliation are at the core of the court’s residual mission. It was during this residual period that I joined the ECCC for a three-month legal internship, working to support the court’s efforts to continue the process of healing. The internship was the culmination of a year of academic studies in Peace and Conflict Resolution in Japan and International Law in The Hague.
My time at the ECCC offered an invaluable opportunity to witness both the successes and challenges of International Criminal Law in practice, Japan’s leadership in international justice, and the tangible positive impact of the efforts of civil society and other national and international actors both in coordination with the court and independently. On outreach projects for the court and my personal time, I saw the beauty and resilience of Cambodia’s people, religions, and culture—a testament to the possibilities of healing and reconciliation even after unimaginable tragedy and suffering.
The Court
The Extraordinary Chambers in the Courts of Cambodia is a hybrid court that combines national and international elements to address the atrocities committed during the Khmer Rouge regime. With support from the national government, the international community, and the United Nations, the court has attempted to promote justice and reconciliation in the aftermath of the brutal period that claimed the lives of at least 1.7 million Cambodians. Since beginning operations in 2006, the court accepted claims from 3,959 Civil Parties, ordered reparations to victims, investigated the alleged crimes of ten individuals, and secured convictions against key figures, notably the Khmer Rouge’s former head of state (marking the first conviction of the crime of Genocide by a head of state), the second-in-command after Pol Pot (who died in 1998), and the head of the notorious S-21 Security Center, where more than 13,000 people were tortured and subsequently killed. Victims played a key role in the trials as Civil Parties, claimants, and even administrators of justice as arguably every Cambodian born prior to 1979 is a victim and survivor of the brutality of the Khmer Rouge Regime.
In its current residual phase, the court has a three-year mandate to "provide for the protection of victims and witnesses [. . .] disseminate information to the public regarding the Extraordinary Chambers; and monitor the enforcement of reparations awarded to Civil Parties, as required." Through these efforts, the court continues to advance the mission of justice and reconciliation. As an intern, I found my work fulfilling. My responsibilities included editing jurisprudence volumes on the trials of the court, researching and developing legal outreach materials, and, most meaningfully, traveling to the provinces to participate in outreach projects. These projects involved engaging with students, survivors, and civil society organizations to foster awareness and understanding of the court’s work. During one such outreach project, a Civil Party survivor shared with me the difficulty and relief that came with recounting his experiences to the outreach team and local university students. “It was hard,” he said, “but it gave me relief.” Such moments are powerful for both survivors and the younger generation, bridging Cambodia’s painful past with a hopeful future.
I also witnessed limitations to this model of justice. How can any court truly provide adequate redress for the unimaginable suffering caused by nearly three decades of civil war, violence, and the loss of so many lives? The court has faced persistent accusations of political interference, and reconciling the demands of international justice with national conceptions of reconciliation has posed significant challenges. While I was impressed by the court's resourcefulness in utilizing its limited means to offer rehabilitation and relief to the victims of the Khmer Rouge, it is important to note that its primary mandate was “to bring to trial senior leaders of Democratic Kampuchea and those who were most responsible for” serious violations of national and international law.
More broadly though, International Criminal Law has been categorized by scholars and practitioners into four types of justice—retributive, distributive, restorative, and expressivist justice. Although the court achieved notable progress in all these dimensions, its focus was arguably more retributive in nature, and its efforts for restorative justice—the form of justice most directly tied to healing the wounds inflicted on individuals and communities—were notably weaker. This can be seen in the fact that of the $404 million spent on the court less than 1% went directly for reparations projects. Nevertheless, the court has made meaningful strides in this regard, and my master’s research has focused on exploring the extent to which the court, particularly through its residual functions, contributes to Cambodia’s obligation under international law to provide reparations to the victims of the Khmer Rouge.
My Research
My research focused on the innovative, yet limited role of the ECCC in providing reparations to these victims. As the first international criminal court in history to issue a reparations order, the ECCC has been at the forefront of international criminal justice in providing judicial reparations to victims. These reparations contribute to the fulfillment under international law to “as far as possible, wipe out all the consequences of the illegal act and re-establish the situation which would, in all probability, have existed if that act had not been committed.”
Through an analysis of completed and ongoing reparations projects, field interviews with survivors and civil society organizations, and an examination of international legal standards and practices, my research explores how the courts’ residual functions contribute to fulfilling Cambodia’s obligations under international law. The court’s initiatives—including health measures for victims, public outreach, promotion of the needs of victims and the implementation of 26 reparations projects—have made meaningful contributions which have been strengthened through partnerships with civil society organizations. However, despite the contributions of one of the most progressive international criminal courts, there are still important gaps. The head of the Victims Support Section at the ECCC, HANG Vanek, shared with me that many of the efforts were “like drops of ink in the ocean” when compared to the huge need in Cambodia. Nonetheless, as the world moves away from what has been called the "Golden Era" of international accountability, the ECCC’s efforts remain a symbol of potential hope. In an era of increasing political division, where achieving consensus to prosecute perpetrators of genocide, war crimes, and crimes against humanity becomes increasingly challenging, the ECCC’s focus on reparations offers a blueprint for addressing the needs of victims. These efforts—though limited—demonstrate the potential for the international community to come together in healing the harm caused by mass violence, transcending often divisive questions of who is right or wrong.
Japan’s role in international justice
As the primary international donor to the ECCC and the International Criminal Court (ICC), Japan has made significant contributions in advancing justice in Cambodia and International Criminal Law more broadly. Contributing 29% of the courts’ funding—Japan’s leadership in backing the court’s efforts is evident. Beyond these broad contributions, Japan has also made significant targeted contributions in restorative justice. Judge NOGUCHI Motoo, a Japanese Supreme Court Judge from 2006 to 2012 was instrumental in the court’s revision of the internal rules after the first trial—paving the way to more tangible reparations to the Civil Party Survivors in Case 002. After his tenure at the ECCC, Judge NOGUCHI promoted victim-centric justice as the Chairman of the Trust Fund for Victims, where he helped apply these lessons more broadly to the ICC contributions to reparatory justice and reparations. While Judge NOGUCHI has now returned to the ECCC as a reserve Supreme Court Judge, Japan continues to have substantial leadership at the ICC which is led by President and Judge AKANE Tomoko, a former Japanese prosecutor.
Japan also made specific material contributions to reparations outside of broad support for the court. It would contribute 1.5 million dollars over the course of five years to one specific judicially endorsed reparations project: the establishment of the Legal Documentation Center (LDC). This department, under Cambodia’s Council of Ministers, is tasked with promoting public awareness, serving as a repository for court documents, fostering research, and preserving the legacy of the ECCC. In anticipation of the court’s closure, I was impressed by the farsightedness of the Japanese government which had foreseen this challenge in 2015 and contributed to a sustainable solution for the court through the establishment of a legacy institution. Even before the ECCC entered its residual mandate, the LDC was actively engaging with communities across all 25 provinces, an initiative now done in conjunction with the ECCC. Other initiatives include providing scholarships to young researchers to encourage research on Khmer Rouge, training teachers to discuss this history, and facilitating international academic exchange between researchers in the Netherlands, Germany, and Cambodia. While Japan’s relatively hands-off approach to the court’s operations has raised some questions, the deputy director and UN Coordinator shared with me that this reflects Japan’s appreciation of the local context and allowing Cambodia to pursue justice in its own way. I view Japan’s substantial contributions at the beginning of the trials followed by contributions to a legacy institution to be the most comprehensive of any country in promoting the ECCC's work in Cambodia.
Civil Society
An unexpected discovery from my time in Cambodia was witnessing the pivotal role of Civil Society Organizations, as well as other International governmental and non-governmental organizations, in advancing restorative justice for the victims. The Supreme Court Chamber of the ECCC would find that it had no power to issue a reparations order to the Royal Government of Cambodia or any other individual or party that was not a party to the proceedings, nor even to assess the state’s compliance with international obligations. Coupled with the financial indigence of each of the accused, these limitations significantly restricted the court’s ability to provide reparations. Yet thanks to the reforms led by Judge Noguchi, the court was able to forge partnerships with civil society and international and national organizations to provide relief to victims.
A powerful example of one such organization is the Transcultural Psychosocial Organization (TPO) which provides psychological support to survivors. One survivor of the Khmer Rouge shared with me that he “used to have nightmares every night,” recalling the restless nights that haunted him before the trials began. But in 2016 after four years of psychological support from TPO, he finally began to sleep soundly again. Today the Court serves as a focal point for Civil Society organizations to meet and discuss ways forward for assisting survivors and Cambodians today. Each month as many as 10 organizations collaborate on strategies for assisting survivors and addressing Cambodia’s more broad needs. This unexpected dynamic—where non-governmental actors take a pivotal role in advancing justice—has shown how cooperation between both international and national community-driven initiatives can make important advancements in addressing the gaps left by formal legal mechanisms.
Of course, these efforts extend beyond the courtroom and organizations cooperating with the court. Organizations such as Rotary International assist Cambodians today. Attending a Rotary Club meeting in Phnom Penh, I learned of the incredible work of Rotary in present initiatives like helping burn survivors, and more historical ones like the 2003 initiative that led to 2,799 surgeries to assist those in need. Witnessing the efforts of these organizations to contribute to transitional justice and healing was powerful. While the task of meeting the aspirational international obligation to provide full reparations to the victims of international crimes will likely always remain an elusive or even disappointing goal, the meaningful work of these groups demonstrated that even small, focused efforts can have profound, tangible effects.
The Beauty of Cambodia and Reminder of the Hope for Peace
While Cambodia’s psychological and physical scars remain, it is a beautiful country with a vibrant culture and people who are proud of their heritage as the heirs to the ancient Angkor Empire. One opportunity where I witnessed this beauty was on my way to my final outreach project in Battambang province. I boarded a train for the seven-hour ride through the countryside from the bustling capital of Phnom Penh where the court is located. The beauty of the Cambodian landscape unfolded before me—not quite flying past, as the train rocked back and forth and ambled along at a leisurely 40 kilometers per hour. We glided through lush rice paddies, passed countless water buffalo, and caught glimpses of serene Buddhist statues and pagodas, symbols of peace and healing.
Upon arriving in Battambang City, we visited numerous high schools and Universities including the Buddhist University of Battambang. There, I stumbled upon the Peace Library of Reverend Samdech Maha Ghosananda, often called either the "Buddha of the Battlefield" or the “Cambodian Ghandhi.” In reading about this monk who embraced the diverse religions and factionalism of Cambodia, I was filled with hope. Despite more than two decades of war, this monk led as many as 800 followers on walks across Cambodia for the cause of Peace even being restricted by the Cambodian Government, discouraged by the UN, and attacked by the Khmer Rouge (four followers were killed in one such attack). At a time when Cambodia was fractured into four factions and peace seemed unattainable, Ghosananda steadfastly proclaimed, “Peace is possible.”
Cambodia today is a vibrant Southeast Asian nation that has in large part risen above the shadows of its past. Through the tireless efforts of its people as well as national and international organizations and institutions, the country has become a symbol of resilience and hope. Ghosananda’s words echo as a powerful reminder that, even amidst seemingly insurmountable challenges, “Our journey for peace begins today and every day. We shall never be discouraged. We shall walk slowly, slowly, step by step. Each step will be a prayer.”
Beautifully written, sparking my imagination of this country's newfound hope in a land of great beauty and promise! Thank you for sharing this important story of its journey of redemption and rebuilding!