Illiberal Transitional Justice: the Extraordinary Chambers in the Courts of Cambodia
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Illiberal Transitional Justice: The Extraordinary Chambers in the Courts of Cambodia Rebecca Anna Gidley A thesis submitted for the degree of Doctor of Philosophy of The Australian National University November 2016 © Copyright by Rebecca Anna Gidley 2016 All Rights Reserved i The work presented in this thesis is, to the best of my knowledge, my own work except as acknowledged in the text. The material has not been submitted, either in whole, or in part, for a degree at this or any other university. Rebecca Gidley iii Acknowledgements I have received help, guidance, and support from many sources over the course of this thesis journey and I gladly acknowledge many of them here. First and foremost I must thank Professor Robert Cribb for his probing comments that challenged me to write with clarity and precision, for always interesting conversations, and for the fact that I always left his office feeling better about my thesis. I am grateful to Dr Tyrell Haberkorn for always being enthusiastic and inspiring about the writing process and many other things. Her involvement helped me to consider more deeply the principles and concepts that underpin my research. Dr Ross Tapsell also stepped in at a challenging time near the end of my thesis and I thank him for making this process as smooth as possible. For her help navigating the ANU administrative maze I am indebted to Jo Bushby. During my fieldwork I benefitted from generous engagement with my project from formal interviews through to incidental conversations. I am grateful to everyone with whom I had such fruitful conversations, whether they can be named in this thesis or not. The staff at the Documentation Center of Cambodia assisted with access to important documents. Dr Steve Heder unstintingly provide documents and contacts during my time in Phnom Penh. I have benefitted greatly from immensely patient Khmer teachers: Sam Samnang, Chanroeun Pa, Soda Sea, Y Socheat, and all the staff at LINK. They were kind enough to only occasionally laugh at my mispronunciations of their beautiful language. Y Socheat also assisted with the translation of some documents used in this thesis, helping me to develop the unusual set of vocabulary I needed for this work. The history writing group at ANU’s School of Culture, History and Language has been a bastion of intellectual support. I am grateful to Chris Park, Bryce Kositz, Mark Jones, Judith Pabian, Lina Koleilat, Andre De Lisle, Yu-Hua Chen, Qin Yang, Orion Lethbridge, and Dr Philip Taylor for having read chapters of this thesis. They have helped me to improve my structure and argument in a reassuring environment. Professor David Chandler also kindly offered to read several of the central chapters and provided fast and encouraging feedback. I gratefully acknowledge the editorial input of Maxine McArthur from the School of Culture, History, and Language. iv I am particularly indebted in the final stages of my thesis to Joyce Das who has been the most reliable and positive thesis companion I could have asked for to help me cross the finish line. Attempting to list all those friends who have provided emotional support, welcome distractions, or joyous moments is daunting but I am privileged to thank: Ellen, Ruth, CC, Joyce, Lina, Bec, Chris, Bruma, Fabian, Dario, Fa, Annie, Ros, Jodie, Maria, Evi, Orion, Judith, Meg, Keren, Kate, Maureen, Jess, Jesse, and Christine. I am grateful for the love and support of my family and for the warmth (literal and figurative) of my escapes to Brisbane to visit them. Finally I would like to thank all those who have, in any capacity, had the patience to teach me. v Abstract The Extraordinary Chambers in the Courts of Cambodia (ECCC) was created by an agreement between the Cambodian government and the United Nations with a mandate to put Khmer Rouge leaders on trial for crimes committed during their 1970s regime. Judicial responses, such as the ECCC, to periods of mass violence have been termed transitional justice since the 1990s. Although the definitions of transitional justice are very broad, the explanations and analyses offered by the literature contain implicit assumptions that transitional justice is being implemented as part of a transition towards liberal democracy. In this thesis I use the case of Cambodia to challenge these assumptions and propose a new category of illiberal transitional justice. Before the creation of the ECCC began, the Cambodian government had spent nearly two decades shaping the narrative of the Khmer Rouge period to suit its political interests. When the United Nations became involved in discussions for a Khmer Rouge tribunal the government was concerned to protect itself and this narrative. The negotiations took place over six years where both sides competed for control over the mechanism. This competition for control was then transferred to the national and international sides of the court once the ECCC became operational. Although all actors involved in the ECCC frequently invoked the language of procedure, in practice procedures were easily dismissed if they were inconvenient. Given this discussion of the ECCC’s establishment and operation, I consider the court in light of the expectations of the transitional justice literature. The ECCC was not adhering to the assumed outcomes regarding ending impunity, building the rule of law, or strengthening democracy, and instead these changes were being actively impeded by the Cambodian government. Rather than pursuing these expected goals the Cambodian government was using the ECCC to enhance its international legitimacy and to strengthen its domestic political control. I argue that the ECCC should be considered an archetypal example of illiberal transitional justice. Cases of illiberal transitional justice sit on a spectrum between liberal transitional justice, which currently dominates the literature, and cases of transitional justice employed by repressive regimes, which are largely ignored in the literature. The ECCC, as a case of illiberal transitional justice, sits on the boundary between legitimacy vi and illegitimacy. The court maintained its legitimacy through the ongoing UN involvement and adherence to the language of procedure, but this legitimacy was challenged by the political interference of the Cambodian government in the court’s operation. Illiberal transitional justice is a different conception of what the rules are, how important they are, and when they are important. In this thesis I challenge existing assumptions and analyses of transitional justice to create a more nuanced understanding of how and why transitional justice mechanisms are employed. vii Table of Contents Acknowledgements ........................................................................................................... iii Abstract ...............................................................................................................................v Table of Contents ............................................................................................................. vii Abbreviations .................................................................................................................... xi Introduction ................................................................................................... 1 Contextualising the ECCC ..................................................................................................2 The Extraordinary Chambers in the Courts of Cambodia ................................................ 6 Bucking the Liberal Democratic Trend ............................................................................. 11 Scope and Sources ............................................................................................................. 13 Illiberal Transitional Justice ............................................................................................. 15 Outline of the Thesis ........................................................................................................ 17 Chapter One – The State of Transitional Justice .......................................... 21 Origins ............................................................................................................................... 22 Definitions ........................................................................................................................ 24 Legalism and Realism ...................................................................................................... 26 Questions Posed ............................................................................................................... 28 Assumptions Made............................................................................................................ 30 Filling the Illiberal Gap ..................................................................................................... 33 Timing ............................................................................................................................... 35 Post-Transitional Justice ................................................................................................... 37 Journeys .............................................................................................................................39 Conclusions ...................................................................................................................... 40 viii Chapter Two – Confronting the Past, 1979-1996 .........................................