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1 RE-ENVISIONING TRANSITIONAL JUSTICE in CAMBODIA By RE-ENVISIONING TRANSITIONAL JUSTICE IN CAMBODIA Item Type Electronic Thesis; text Authors Jandali, Joanna Citation Jandali, Joanna. (2020). RE-ENVISIONING TRANSITIONAL JUSTICE IN CAMBODIA (Bachelor's thesis, University of Arizona, Tucson, USA). Publisher The University of Arizona. Rights Copyright © is held by the author. Digital access to this material is made possible by the University Libraries, University of Arizona. Further transmission, reproduction or presentation (such as public display or performance) of protected items is prohibited except with permission of the author. Download date 23/09/2021 12:04:06 Item License http://rightsstatements.org/vocab/InC/1.0/ Link to Item http://hdl.handle.net/10150/651039 1 RE-ENVISIONING TRANSITIONAL JUSTICE IN CAMBODIA By JOANNA JANDALI ____________________ A Thesis Submitted to The Honors College In Partial Fulfillment of the Bachelors degree With Honors in Political Science THE UNIVERSITY OF ARIZONA M A Y 2 0 2 0 Approved by: ____________________________ Dr. Faten Ghosn School of Government & Public Policy 2 Abstract The Khmer Rouge genocide in Cambodia took place between 1975 and 1979, decimating an estimate of 1.7 million people in one of the deadliest Communist revolutions in the world. In 2006, the Extraordinary Chambers in the Courts of Cambodia (ECCC), a hybrid criminal tribunal, was created to redress the legacy of harms and impunity left by the Khmer Rouge. Despite these efforts, the people of Cambodia have yet to see justice delivered. I contend this is because Cambodia’s transitional justice program exclusively focuses on retributive justice and neglects restorative justice. To prove this, I first present a discussion on contemporary transitional justice practices. Next, I detail the rise, reign, and fall of the Khmer Rouge. From there, I trace the emergence of the post-conflict state, from the 1980s till the installation of the ECCC in 2006. I examine internal challenges faced by the ECCC, before turning to a broader analysis of where Cambodia stands today in relation to transitional justice goals. I conclude with recommendations for Cambodian transitional justice moving forward– a holistic approach based on the restorative practices of reconstruction, reparations, and reconciliation. 3 RE-ENVISIONING TRANSITIONAL JUSTICE IN CAMBODIA Joanna Jandali I. INTRODUCTION II. TRANSITIONAL JUSTICE A. Tracing the Emergence of Contemporary Transitional Justice B. Goals of Transitional Justice C. Transitional Justice Mechanisms III. CAMBODIA A. Historical Overview of Cambodia B. Rise of the Khmer Rouge C. The Khmer Rouge and the Reign of Terror D. Khmer Rouge Violations of International Law E. Demise of the Khmer Rouge and Rise of the Post-Conflict State IV. TRANSITIONAL JUSTICE IN CAMBODIA A. The Rise of a Hybrid Tribunal B. Extraordinary Chambers in the Courts of Cambodia C. The State of Cambodia Forty Years Post-Khmer Rouge i. Political Security ii. Economic Security V. A NEW VISION FOR CAMBODIAN TRANSITIONAL JUSTICE VI. CONCLUSION 4 “The [Khmer Rouge’s] revolution was so ultra-radical that even the communists were appalled. The Soviets studiously ignored it, the Chinese vainly tried to moderate it, and the Vietnamese ultimately destroyed it.” – Craig Etcheson (2019) I. INTRODUCTION The Khmer Rouge’s reign in Cambodia between 1975 and 1979 resulted in the death of approximately 1.7 million people– a quarter of the nation’s population. The Khmer Rouge led one of the deadliest Communist revolutions in the world, effectuated through comprehensive urbanicides and ethnic cleansings. Cities were emptied. Populations were rounded up and herded into labour camps. Children were separated from parents, while men and women were forced into marriages. In state-arranged marriages, men and women were forced to procreate. Torture, persecution, repression, and executions were only some of the heinous tactics used by the Khmer Rouge in their quest to engineer a racially and socially pure “Kampuchea”. This became known as the Khmer Rouge genocide. Yet, despite this taking place more than forty years ago, the people of Cambodia have yet to see justice. Cambodia today is riddled by a culture of impunity, corruption, political and economic exploitation, human insecurity, and decades of unaddressed grievances. This has been a result of failed and misguided transitional justice efforts, primarily comprised of an international focus on criminal prosecution. The Extraordinary Chambers in the Court of Cambodia (ECCC) was established in 2006 to prosecute the senior leaders of the Khmer Rouge for violations of international law. The ECCC, however, has proven in effective in both meeting its own goals and expectations of healing, recognition, accountability, and justice, as well as effectuating broader post-conflict changes including democratization and stability. I contend that the transitional justice program created for Cambodia, primarily hinging on criminal prosecution, has failed in delivering justice. The ECCC has struggled with a multitude of challenges including high costs, low indictment and conviction rates, administrative constraints, judicial corruption, and victim-silencing. The ECCC has failed to both redress the harms caused by the Khmer Rouge as well as install a culture of accountability and rule of law in Cambodia. Moreover, I argue that this has been exacerbated by the lack of post-conflict institutional reconstruction. While the Khmer Rouge fell from power in 1979, the next decade of Cambodian history comprised of civil war between the varying militant factions. In the 1990s, a power sharing agreement was brokered with assistance from the United Nations (UN). The first free and fair elections following the fall of the Khmer Rouge were held in 1993. Yet, UN efforts at ushering in transformative political reform ended there. Over the next decade, the Cambodian People’s Party (CPP) led by Hun Sen, a former Khmer Rouge mid-level officer, consolidated power to create what is currently a single-party competitive-authoritarian state. Thus, Hun Sen and the CPP have exclusively been in power for more than two decades and remain in power till this day. This was a critical oversight by transitional justice efforts– the lack of institutional overhaul in the post-conflict era bred further state vulnerability that was, in turn, capitalized on by Hun Sen and the CPP. As a result, the population of Cambodia has been subjected to political intimidation, violence, human and civil rights abuses, economic disenfranchisement, and an overall state of human insecurity. 5 The solution, I propose is re-envisioning Cambodian transitional justice away from the ECCC and toward three core pillars: institutional reform, economic reparations, and reconciliation through grassroot participation. While this would not serve as a comprehensive remedy for all of Cambodia’s post-conflict needs, it would serve as an appropriate starting point in the delivery of genuine justice and the transformation of Cambodia from a vulnerable state on the edge of violent resurgences into one of stability, rule of law, and reconciliation. To support these arguments, I first present a brief history of transitional justice followed by discussion of its goals and the varying mechanisms that comprise it. Next, I discuss the rise, reign, and fall of the Khmer Rouge, noting in particular what violations of international law were committed. From there, I trace the emergence of the post-conflict state, from the 1980s till the installation of the ECCC in 2006. I then examine internal challenges faced by the ECCC, before turning to a broader analysis of where Cambodia stands today in relation to transitional justice efforts. I conclude with recommendations for Cambodian transitional justice moving forward– a holistic approach based on reconstruction, reparations, and reconciliation. II. TRANSITIONAL JUSTICE A. Tracing the Emergence of Contemporary Transitional Justice The UN defines transitional justice as “the full range of processes and mechanisms associated with a society’s attempt to come to terms with a legacy of large-scale past abuses” (UN Secretary-General, 2010, p. 2). The International Center for Transitional Justice (ICTJ) explains transitional justice as “the ways countries emerging from periods of conflict and repression address large-scale or systematic human rights violations so numerous and so serious that the normal justice system will not be able to provide an adequate response” (“What is transitional justice”, n.d.). Ruti Teitel (2003), one of the first few academics to put a name to the practice, regards transitional justice as “the conception of justice associated with periods of political change, characterized by legal responses to confront the wrongdoings of repressive predecessor regimes” (p. 69). Across the definitions, transitional justice appears to imply four ideal components: 1) transitional justice is not just one tool, but an array of mechanisms that can be used; 2) transitional justice is used in extraordinary situations of large-scale, systematic abuses; 3) transitional justice occurs at the end of conflict or “period of flux” (Roht-Arriaza, 2006, p.1), in particular at the point of political change in which one regime comes to replace another; and 4) transitional justice involves some form of re-dress, most commonly referred to as “justice”. Though the discourse of transitional justice only recently emerged in the late 1980s and early 1990s, transitional justice within international fora first made an appearance
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