lessons from de cambodian expirience with truth and reconciliation

8/12/2019 Lessons From de Cambodian Expirience With Truth and Reconciliation

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Temple University Beasley School of LawLEGAL STUDIES RESEARCH PAPERNO.2012-38

Lessons from the Cambodian

Experience with Truth andReconciliation

John David Ciorciari

University of Michigan - Gerald R. Ford School of Public Policy

Jaya Ramji-Nogales

Temple University Beasley School of Law

October 5, 2012

Cite: Buffalo Human Rights Law Review, Sept. 2012

This paper can be downloaded without charge from the

Social Science Research Network Electronic paper Collection:http://ssrn.com/abstract=2078982


2/26Electronic copy available at: http://ssrn.com/abstract=2078982Electronic copy available at: http://ssrn.com/abstract=2078982

LESSONS FROM THE CAMBODIAN EXPERIENCE WITH

TRUTH AND RECONCILIATION1

John D. Ciorciari*and Jaya Ramji-Nogales**

Forthcoming,Buffalo Human Rights Law Review, Sept. 2012

Table of Contents

Introduction ............................................................................................................. 2I. Defining Truth and Reconciliation in Cambodia ................................................ 3II. The Winnowing of Truth and Reconciliation in Cambodia, ............................ 61979-2006 ............................................................................................................... 6

A. Early Efforts at Truth and Reconciliation ................................................... 8B. UNTAC: Prioritizing Peace ........................................................................ 11C. Hun Sens National Reconciliation Policy .............................................. 12D. Choosing a Tribunal over a Truth Commission .......................................... 13

III. The Khmer Rouge Tribunal, 2006-Present ..................................................... 14A. Design of the Tribunal ................................................................................ 15B. Victim Participation .................................................................................... 16C. The ECCCs Effects on Reconciliation to Date .......................................... 18

IV. Remaining Challenges and Lessons Learned ................................................. 20A. The Role of Justice ...................................................................................... 21B. Truth through Public Education .................................................................. 21C. Reconciliation through Community Dialogues ........................................... 23D. Public Memorials and Ceremonies ............................................................. 24

1The authors thank Lisa Laplante, Tara Melish, David Westbrook, and RogerDesForges for their thoughtful comments on an earlier draft. Thanks also toRachel Farr for timely research assistance.

* Assistant Professor, Gerald R. Ford School of Public Policy, University ofMichigan. The author has been a Legal Advisor to the Documentation Center ofCambodia since 1999.

**Associate Professor, Beasley School of Law, Temple University. The authorhas been a Legal Advisor to the Documentation Center of Cambodia since 1997.


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2 Lessons from the Cambodian Experience

INTRODUCTION

As South Koreans seek to implement the recommendations of theircountrys Truth and Reconciliation Commission (TRC) effectively,Cambodia may not be an immediately intuitive place to look for guidance.Cambodia has never convened a formal truth and reconciliation process orproduced an extensive official report of human rights violations withspecific policy recommendations. Nevertheless, and starting from theunderstanding that social processes leading to reconciliation arenecessarily different in different societies, the Cambodian experience doesoffer some important lessons for South Korea and other states working tosatisfy the rights and needs of victims of past abuses. In particular, the

Cambodian case may offer a useful example in navigating the complexpolitics that generally characterize transitional justice processes.We focus on two central claims about the Cambodian experience.

First, the Cambodian experience shows the importance of engaging localcivil society to play a central role in truth and reconciliation initiatives.Where, as in Cambodia, political elites prioritize the maintenance andgrowth of their own power, they tend to subordinate certain truths andpursue a shallow form of reconciliation that privileges their narrowinterests. The needs of ordinary survivors are often sidelined. Thoughcivil society has fewer resources and less formal power and authority thanthe government and international institutions in organizing truth andreconciliation initiatives, it often has the advantage of being moreresponsive to societal interests. It also tends to be less encumbered by thepolitical gridlock generated by competition among domestic politicalparties and international actors. Local non-governmental organizations(NGOs) are particularly well positioned to assess and address survivorsneeds.

In Cambodia, international NGO involvement in truth andreconciliation initiatives has been limited, both because of local politicalinterference and resource constraints. Thus, many of the most active civilsociety groups in the truth and reconciliation arena have been local. Thesegroups generally have less funding and transitional justice expertise thaninternational organizations, but they draw on more relevant cultural

resources, so may be preferable in the long run. Moreover, the growth oflocal groups addressing reconciliation issues may help to establish a morerobust civil society that can contribute to deliberative political processesand a more stable democratic future.

Second, the Cambodian example can help to explore questions ofinstitutional sequencing in transitional justice efforts. In any society,


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5-Jun-12] Lessons from the Cambodian Experience 3

responses to mass human rights abuses entail political and societaldialogue about what goals to pursue, through what institutionalmechanisms, and in what order. We discuss how the space for pursuing

truth and reconciliation initiatives has broadened over time in Cambodia,where official efforts initially focused on solidifying peace and only laterturned to questions of transitional justice.

We also examine the ways in which mechanisms that are not aimedprimarily at promoting truth and reconciliation may create the politicalspace for truth and reconciliation processes in other forms. In Cambodia, ahybrid court established in 2006 by the Cambodian government andUnited Nations has been the central avenue for accountability for thecrimes of the Khmer Rouge regime. Though the tribunal includesinnovative measures for victim participation and collective moralreparations, it is not an ideal vehicle for truth and reconciliation. The

impact of the proceedings on public knowledge and victims healing hasbeen modest to date, and donor fatigue resulting from the costly tribunalmakes it unlikely that funds will be forthcoming for an official TRC inCambodia.

Despite these issues, we argue that the existence of this court hashelped to create the political space for individual Cambodians and civilsociety organizations to establish important and innovative truth andreconciliation measures. Those non-governmental groups have been theunofficial implementing agencies of some of the steps that the SouthKorean TRC recommendedsuch as creating accessible archives,providing human rights education, and rewriting official history books.Many of these efforts have taken place at grassroots levels, but some havetranslated into key national policy programs. Thus Cambodia offers atleast two lessons for implementing TRC recommendations: the importanceof engaging local civil society and seizing the perhaps unexpected benefitsthat can be derived from particular institutional sequences.

I. DEFINING TRUTH AND RECONCILIATION IN CAMBODIA

Implementing measures to advance truth and reconciliation raisesdifficult questions within a society, let alone across different societies.What aspects of truth should be the focus? What kind of reconciliation issought, and for whom? Both of these concepts are inherently culturally

bound, and definitions necessarily privilege some normative goals at theexpense of others. Indeed, to define these terms too precisely belies someof their essence; truth and reconciliation are ideas shaped partly through acomplex and often contested process of political and social dialogue.

We begin with the premise that truth and reconciliation mean


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different things to different members of a society at different times.2 Fromthat starting point, we present some of the varied ways in which truth andreconciliation have been defined and pursued in Cambodia in an effort to

assess the particular needs of ordinary Cambodian survivors. From thiscase study, and again acknowledging the societally and temporallycontingent nature of the concepts of truth and reconciliation, we cancarefully uncover cultural and historical parallels that might enable us todraw out lessons for South Korea and other countries.

Truth is, of course, a complex concept. Truth-seeking projects andcommissions have emphasized multiple forms of truth when they havedefined the term at all.3 Truth is also subject to multiple interpretationswithin Cambodia.4 To many Cambodians, knowing the truth about theKhmer Rouge era means, above all, learning the facts surrounding theirown painful experiences and the fate of lost loved ones. To others, truth is

primarily something for victims to expressa device for empowermentand opportunity to have ones voice heard after more than thirty years ofbeing effectively silenced. Still others yearn to understand why the abuseshappenedto hear explanations directly from the mouths of perpetratorsand to understand how the broader system of repression functioned.These differing priorities around truth suggest the need for differenttransitional justice approaches within one or multiple mechanisms.

Reconciliation also lends itself to numerous definitions that varyand even compete along several axes, including goals, subject, and scope.It is widely understood as a long-term process, the objectives of which maythemselves be rich concepts such as truth, justice, and peace.5

2Jaya Ramji-Nogales, Designing Bespoke Transitional Justice: A Pluralist ProcessApproach, 32 MICH.J.INTL L.1,22(2010).

3Most legal instruments establishing truth commissions have failed to definetruth precisely. Audrey R. Chapman and Patrick Ball, The Truth of TruthCommissions: Comparative Lessons from Haiti, South Africa, and Guatemala, 23 HUM

RTS.Q. 1, 4-12 (2001). The South African TRC was the most explicit, emphasizing four

forms of truth: factual or forensic truth, personal or narrative truth, social or dialogue

truth that emerges from public interaction and debate, and restorative trutha concept

closely linked to acknowledgement. 1 TRUTH AND RECONCILIATION COMMISSION OF

SOUTH AFRICA REPORT110 (1999).4SUZANNAH LINTON,RECONCILIATION IN CAMBODIA 126(2004).

5 Most definitions of reconciliation suggest a process of acknowledging andgrappling with the past, coming to understand it, and changing attitudes to makemore positive relationships possible. See, e.g., LINTON, supra note __, at 106; andBrandon Hamber and Grinne Kelly, Beyond Coexistence: Towards a WorkingDefinition of Reconciliation, in RECONCILIATION(S): TRANSITIONAL JUSTICE INPOSTCONFLICT SOCIETIES 287-95 (Joanna R. Quinn ed., 2009). South AfricasArchbishop Desmond Tutu has described reconciliation as involving a very long


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Reconciliation can signify an end of armed conflict or tense politicaldivisions, but it can also refer to individuals need for a degree of personalhealing or closure. The Khmer concept of reconciliation, kar phsas phsa,

implies both. It literally means reconnecting the broken pieces andsuggests a process of healing, both internally and by bringing formerenemies back together.6 Rebuilding a shattered society requiresreconciliation at the individual, community, and national levels as peoplemutually acknowledge past suffering and re-establish productiverelationships.

Survey evidence captures the complexity and dynamism of theconcept of reconciliation as Cambodians come to terms with the past.Analysts from the University of California-Berkeleys Human RightsCenter surveyed 1,000 Cambodians in late 2008 and conducted a secondsurvey in December 2010. In 2008, respondents characterized

reconciliation as the absence of violence and conflict (56%), unity andliving together (33%), and communication and mutual understanding(9%).7 In 2010, 54% of respondents focused on unity and living together,38% on communicating and mutual understanding, and only 15% on anabsence of violence and conflict. 27% also suggested that reconciliationmeant having gentleness and compassion for one another.8 Reconciliationin Cambodia is a multi-level, multi-faceted process.

and painful journey, addressing the pain and suffering of the victims,understanding the motivations of offenders, bringing together estrangedcommunities, trying to find a path to justice, truth and, ultimately, peace.Desmond Tutu, Foreword to RECONCILIATION AFTER VIOLENT CONFLICT: AHANDBOOK4 (David Bloomfield, Teresa Barnes, and Luc Huyse eds., 2003).

6 Ana Garca Rodicio, Restoration of Life: A New Theoretical Approach toRepatriation based on a Cambodian Experience of Return, 13 Intl J. Refugee L. 126(2001); Action Asia, Exploring Asian Approaches to Peace Building Practical Insightsand Reflections 32 (2007),.

7Phuong Pham et al., Human Rights Ctr., Univ. of Cal. Berkeley, So We WillNever Forget: A Population-Based Survey on Attitudes about Social Reconstruction andthe Extraordinary Chambers in the Courts of Cambodia 28 (January 2009),http://www.law.berkeley.edu/HRCweb/pdfs/So-We-Will-Never-Forget.pdf

[hereinafter 2009 Berkeley Report].8Phuong Pham et al., Human Rights Ctr., Univ. of Cal. Berkeley,After the First

Trial: A Population-Based Survey on Knowledge and Perception of Justice and theExtraordinary Chambers in the Courts of Cambodia 33 (July 2011)http://www.law.berkeley.edu/HRCweb/pdfs/After-the-First-Trial.pdf [hereinafter 2011Berkeley Report]. Figures do not add up to 100%, because the survey allowedrespondents to emphasize more than one aspect of reconciliation.


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Governments, non-state organizations, and ordinary people maypromote the varied goals of reconciliation in a number of ways. Whileamnesty programs might advance the goal of short-term peace, criminal

trials and civil remedies (such as awards of reparations) might offer agreater measure of justice, and truth and reconciliation commissions maypresent a broader picture of the truth. A variety of other measures such aspublic ceremonies, memorials, and individual or community-levelcounselling can supplement efforts to advance these and other goals. Notall of these approaches work synergistically all of the time, however. AsJohn Paul Lederach argues, the process of reconciliation often involvesdealing with profound paradoxes: trying to build a shared future whileseeking truths about a divided past and promoting mercy and mutualacceptance while insisting on justice and accountability for past offenses.9The difficulty of marrying all aspects of reconciliation simultaneously

points to the importance of timing. Institutions must sometimes besequenced in a way that prioritizes different goals over time, thus meetingthe needs of broader segments of society.

In Cambodia, reconciliation initiatives to date have focusedprimarily on healing scars from the Khmer Rouge period. That period wasthe most terrifying in the countrys history, but it was not the only periodof human rights abuses. Like the process of deciding what truth bearstelling, choosing the reference point for reconciliation entails powerfulnormative and political considerations.

II. THE WINNOWING OF TRUTH AND RECONCILIATION IN CAMBODIA,

1979-2006

Official efforts at truth and reconciliation in Cambodia have beendeeply intertwined with power politics. In particular, they have beenassociated with the rise of the Vietnam-backed Peoples Republic ofKampuchea (PRK), which supplanted Pol Pot in January 1979, and thesubsequent reemergence of PRK leaders as the Cambodian Peoples Party(CPP) in the 1990s. The CPPs approach to reconciliation has prioritizedpolitical consolidation and an end to armed conflict, offering a form offorgiveness to Khmer Rouge members willing to acquiesce in CPPleadership. In terms of institutional sequencing, then, the PRK and CPPprized amnesty over accountability. The CPP has also introduced efforts at

truth and justice, but generally in a way calculated to advance its politicalposition. This focus on macro-reconciliationmaintaining peace and

9 JOHN PAUL LEDERACH, BUILDING PEACE: SUSTAINABLE RECONCILIATION INDIVIDED SOCIETIES31 (1997).


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stability at the national levelwas necessary to some degree during theyears of armed conflict and insurgency that stretched from 1979 into themid-1990s. However, the justification for focusing on macro-reconciliation

has weakened over time.Compromises among rival political groups are rarely enough tofoster broad revelations of the truth or deep grassroots reconciliation. Thefocus on political stability in Cambodia, in part through formal or informalamnesty schemes, has imposed limits on micro-reconciliation at the levelof individuals and communities. Many survivors cite Khmer Rougeimpunity as a source of continuing anguish and an obstacle to personalhealing.10 Even more describe their inability to understand the atrocities asa barrier to reconciliation.11 Until very recently, official Cambodian historytextbooks included just a single line about the Pol Pot regime. Complaintsof physical and emotional injury are ubiquitous, pointing to another

macro-level failure with micro-level consequences: the virtual absence ofeven rudimentary counseling and health services.12 The Cambodiangovernment and key international actors could not have been expected tosolve all of these challenges. However, Cambodias experience illustrateshow reconciliation processes can be unresponsive to individual andcommunity needs when the legitimate aim of securing the peace and thesignificantly less legitimate goal of gaining or preserving political powerdrive institutional design and sequencing decisions. Moreover,reconciliation processes designed without the regular and activeparticipation of civil society are significantly less likely to address theseneeds.

10In the 2008 Berkeley survey, nearly 40% of respondents said that top KhmerRouge leaders needed to be punished before they could forgive them. 2009Berkeley Report, supra note __, at29-30. See alsoJohn D. Ciorciari and Sok-KheangLy, The ECCCs Role in Reconciliation, in ON TRIAL: THE KHMER ROUGEACCOUNTABILITY PROCESS(John D. Ciorciari & Anne Heindel, eds., 2009), at 335-39.

11In the 2008 Berkeley survey, 64% of respondents agreed with the statement that they

could not reconcile without knowing the truth about what happened. Large majorities

indicated that they wanted to know more about the Khmer Rouge regime, and most

reported their knowledge of the period as poor or very poorespecially those who did notlive through it. 2009 Berkeley Report, supra note __, at 27-27. See also Sok-Kheang Ly,Follow-up Survey on National Reconciliation (2007) (on file with the Documentation

Center of Cambodia).12 For a discussion of Cambodias challenges in meeting even rudimentary

mental health care needs, see generally CAMBODIAS HIDDEN SCARS (Beth VanSchaack, Daryn Reicherter, and Youk Chhang, eds., 2011).


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A. Early Efforts at Truth and Reconciliation

Immediately after the toppling of the Pol Pot regime, the new PRK

government and its Vietnamese allies placed a legitimate priority onquelling the large Khmer Rouge insurgency and pacifying a country whereimpulses for revenge were strong. The goals of peace and political stabilitydrove institutional design decisions, and transitional justice mechanismswere created and implemented by the government alone. In the yearsfollowing the Pol Pot regime, much of the population harbored vindictivefeelings against former Khmer Rouge cadres. Revenge killings took placein various parts of the country, as survivors took reprisal for the deaths oftheir loved ones and other members of their communities. The PRK faceda dilemma. Many of its officials and troops also sought revenge against theKhmers Rouges, and demonizing the Pol Potists helped legitimize PRK

rule. However, violent reprisals against some former Khmer Rouge cadresthreatened to exacerbate Cambodias civil war and push greater numbersof former Khmer Rouge rank and file into the jungles, where they wouldfight alongside Pol Pots forces instead of defecting to the new governmentor dropping their arms. The PRK thus had incentives to stop the revengekillings, even if it had little sympathy for Khmer Rouge cadres.

The PRK thus instituted a kind of reconciliation plan, offeringcarrots to defecting Khmer Rouge soldiers while also wielding aformidable stick. It launched the K-5 plan, building walls and layingdown land mines to keep Khmer Rouge guerillas from the rest of thepopulation.13 The PRK used brutal counter-insurgency measures to coercerebels to reconcile while issuing leaflets and radio broadcasts promisingleniency to Khmer Rouge rebels who laid down their arms, apologized,underwent reeducation, and rejoined the fold.14

In August 1979, the PRK arranged a transitional justice process: afour-day trial of Pol Pot and one of his deputies, Ieng Sary. The PeoplesRevolutionary Tribunal returned historys first genocide conviction. Thetrials were connected closely to the governments defection policy. Bypinning the blame on Chinese hegemonists and a handful of domesticvillains, the trial presented the rest of society as victims, which the PRK

13 Hundreds of thousands of Cambodians were recruited or compelled toparticipate in the K-5 scheme by aiding with construction. EVAN GOTTESMAN,

AFTER THE KHMER ROUGE:INSIDE THE POLITICS OF NATION-BUILDING231-37 (2002).It resulted in thousands of deaths and injuries on both sides of the conflict andcontributed to lasting resentment in some communities against the PRK (and laterthe CPP).

14 Sok-Kheang Ly, State and Individual Efforts to Bring about Reconciliation(Documentation Center of Cambodia, Aug. 2009).


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hoped would dampen revenge killings and keep frightened former KhmerRouge rank and file from joining the insurgency.

The strategy succeeded in abating revenge killings and attracting

many Khmers Rouges to lay down their arms or join the PRK. The tribunalalso provided some useful information and public recognition of thesuffering of millions of people under Khmer Rouge rule. However, manysurvivors found the trials inadequate to make them forgive and reconcilewith low-level Khmer Rouge cadres. The trials were also riddled withprocedural flaws and were rejected outside the country as a way to justifythe Vietnamese invasion of Cambodia. Rather than helping the newgovernment solidify control, many outside powersincluding China,Thailand, and the Westsupported a coalition of royalists, right-wingrepublican rebels, and Khmers Rouges to fight Vietnam and bleed itsSoviet sponsors.

From 1980 to 1983, the PRK carried out additional measures tosupplement criminal trials. The most important of these efforts was thenationwide review and condemnation of Khmer Rouge atrocities by thegovernment organization Renakse(Salvation Front). The Renakseorganizeda series of community meetings in 1983 that had much of the appearance ofa truth commission, although they were not labeled as such. Thecommittee in charge of the process interviewed survivors aroundCambodia, amassed evidence of damage done by the Khmer Rouge topeople and property, dug up mass graves, examined documents, andwrote a report to the government. The Renakse commission also invitedvictims to sign petitions enumerating Khmer Rouge atrocities in particularparts of the country. According to PRK authorities, nearly 9,000 petitionswere drafted.15

Unfortunately, the Renakse truth commission-type process was notnearly as effective as it could have been. Like the 1979 trials, it sufferedfrom both procedural flaws and over politicization. Most of the Renaksepetitions were drafted by PRK officials and revealed a nakedly politicalpurpose by laying out the PRKs case for prying Cambodias seat at the UNGeneral Assembly away from the anti-PRK coalition. The government alsodid little to disseminate its findings to the public. Further, the processincluded no Khmer Rouge voices, preventing the occurrence of genuinedialogue between former foes.16 The Renakse process also did little to

15 For further discussion of the PRK petitions, see William J. Schulte, TheHistory of the Renakse Petitions and their Significance to the ECCC Proceedings,SEARCHING FOR THE TRUTH, Dec. 2007. Well over 1,000 petitions survive today inthe Documentation Center of Cambodia (DC-Cam) archives, containing thesignatures or thumbprints of 1,166,307 victims.

16 CRAIG ETCHESON, RECONCILIATION IN CAMBODIA: THEORY AND PRACTICE 43


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encourage public apologies that could have facilitated healing. Withoutthe involvement of civil society, the PRK government furthered its owngoals but failed to address many of the needs of Cambodian society.

The PRK government did engage in other, slightly more successfulefforts to promote reconciliation. The PRK regime erected stupasBuddhistreligious monuments used for worship and remembranceand othermemorials at nearly 100 of the most infamous sites of Khmer Rouge terroraround the country. It also helped ordinary villagers excavate the remainsof the departed from more than 19,400 mass burial pits across thecountryside. As many Cambodians believed that victims who died violentdeaths and received improper burials would not be able to be reborn, thisofficial assistance was an important recognition of their religious andcultural beliefs. In Cambodia, memorials were the first real step towardsaddressing individual and community needs. These relatively small-scale

and uncontroversial processes may have represented the limits of politicalviability in a highly unstable society.The government also developed ceremonies around the memorials,

though these were often co-opted for partisan political ends. Beginning onMay 20, 1983, Cambodians began to celebrate a Day of Anger to recallthe abuses of the Khmer Rouge regime and share their pain. Much like the1979 trials and Renakse inquiries, the PRK government used the Day ofAnger to legitimate its rule and mobilize public support for the ongoingcounterinsurgency campaign. A speech by President of the PRK NationalAssembly Chea Sim on the 1986 Day of Anger reflected this dynamic:

Beloved comrades and friendsthose who died arereminding us to be vigilant, to strengthen our solidarity andpractice revolutionary activities. We must be on the alertagainst the cruelties and poisonous tricks of the enemy17

In the context of a continuing guerilla war, the Day of Angerfunctioned more as a rallying cry against the surviving Khmer Rougemovement than as a call to lay down arms and reconcile. Even after thedissolution of the Khmer Rouge insurgency, Cambodian leaders have toooften used the Day of Anger to stir vitriol for the sake of partisanadvantage, undermining or perhaps even eliminating the ceremonys

(2004).

17 Translated by Sour Bunsou and quoted in Rachel Hughes, Memory andSovereignty in Post-1979 Cambodia: Choeung Ek and Local Genocide Memorials, inGENOCIDE IN CAMBODIA AND RWANDA:NEW PERSPECTIVES 267(Susan E. Cook, ed.,2006).


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contribution to reconciliation.Alongside modest advances in national-level reconciliation,

Cambodia saw private efforts at micro-reconciliation during the 1980s.

Largely religious in nature, the relative success of these efforts inaddressing the needs of Cambodians speaks to the importance of involvinglocal non-governmental actors in reconciliation processes. The mostprominent occasion for such efforts has been the annualpchum ben festival,a traditional Khmer day of remembrance of the dead. According totraditional Khmer Buddhist religious beliefs, the gates of hell open onceeach year, and departed souls wander the earth. Cambodians gather atpagodas and place food such as rice balls on the earth to ease the spiritssuffering. The ceremony has added significance with respect to KhmerRouge victims, as traditional beliefs suggest that spirits are condemned towander the earth and barred from reincarnation until they are

acknowledged in a religious ceremony. Pchum ben has provided a way tofor many Cambodians to do so for departed loved ones who neverreceived a proper burial.18

Religious spacesincluding Buddhist wats, mosques, and churchesthat had faced relentless attacks under the Pol Pot regime thus became keypublic spaces for personal and community reconciliation. The countrysbeleaguered educational system, which devoted a mere sentence to theKhmer Rouge era in history texts, and a virtually non-existent mentalhealth system made communities of faith all the more crucial in survivorsquests for a sense of healing and inner peace.

B. UNTAC: Prioritizing Peace

As the Cold War wound down, Vietnam looked for a way out ofCambodia as its Soviet sponsors turned inward. The major external powersbegan to negotiate a settlementagain, prioritizing peace over justice. Tomost of the key parties, peace meant an end to armed hostilities andputting Cambodia on a democratic trajectory. The permanent fivemembers of the Security Council and other key states pressed onCambodias various factions, including the Khmer Rouge, to hammer out apeace deal.

The result, finalized on October 23, 1991, was the Paris PeaceAccords, which established an eighteen-month UN Transitional Authority

18 Ly Daravuth, Notes on Pchum Ben, Brandeis University International Center forEthics, Justice and Public Life,

, at 6-8; Lor Chandara, Festival of the Dead Remembers TortureVictims of KR,CAMBODIA DAILY, Sept. 25, 2000.


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in Cambodia (UNTAC). The most ambitious peacebuilding initiative in UNhistory, it provided for military peacekeepers, civil administration, andUN-sponsored elections in 1993. However, it did not focus on truth,

reconciliation and justice, largely because its architects feared suchprovisions would lead Khmer Rouge insurgents to spoil the peace. Thatfear was reasonable, as the Khmers Rouges violated the UN ceasefire onnumerous occasions and boycotted the elections. There was little politicalspace for accountability efforts at that juncture. However, the country didnot relapse into war, and the 1993 elections helped marginalize Pol Potsforces politically. UNTAC provided neither trials nor amnesty, deferringbut not precluding truth-telling exercises and other forms of transitionaljustice.

C. Hun Sens National Reconciliation Policy

Throughout the 1990s, Prime Minister Hun Sen used amnesty as ameans to pursue peace, an approach that served to increase his politicalpower but compromised the goal of justice and did nothing to advancetruth. The 1993 elections resulted in an unstable truce between Hun Senand Sihanouks son, the royalist leader Norodom Ranariddh, who agreedto serve as co-prime ministers. Hun Sen launched a policy of nationalreconciliation focused on courting Khmer Rouge defectors. He brokered akey 1996 deal with Khmer Rouge leader Ieng Sary, who defected withroughly 3,000 of his fightersa substantial fraction of the total insurgentranksin exchange for a royal amnesty and pardon granted by KingNorodom Sihanouk in September of the same year. Those defectionsalmost brought the Khmer Rouge armed resistance to a halt.

In 1997, Hun Sen achieved a decisive upper hand, when he accusedRanariddh of a plot to use Khmer Rouge guerillas to seize power, and CPPforces defeated royalist partisans in a series of bloody street battles. HunSen occasionally advocated justicemost notably in a June 1997 letter withRanariddh requesting UN support to establish a tribunalbut tended topit peace against truth and accountability. In December 1998, he famouslydeclared that defecting Khmer Rouge leaders Nuon Chea and KhieuSamphan should be greeted with bouquets of flowers, not with prisonsand handcuffs and that Cambodians should dig a hole and bury thepast.19 The plan failed to produce meaningful apologies from Khmer

Rouge leaders; Pol Pots second-in-command, Nuon Chea, issued vagueregrets for lives lost and for animals that died; his colleague Khieu

19John Gittings, Pol Pot Men Say Sorry for Killing Fields, THE GUARDIAN, Dec. 30,1998.


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Samphan urged the public to let bygones be bygones.20 These dismissalsof societal suffering did nothing to ease survivors pain.21

In early 1999, Cambodian authorities apprehended two more

notorious Khmer Rouge figuresDuch, who headed the central torturefacility at Tuol Sleng, and zone commander Ta Mok, also known as theButcher. The insurgency had essentially crumbled, increasing thepractical possibility of trials or a truth commission. The imperatives of warand peace no longer limited the political and societal dialogue to the sameextent, and more civil society leaders began to press for transitional justice.However, along the way, Pol Pot had died, the CPP had signed an amnestydeal with Khmer Rouge leader Ieng Sary, and other former Khmers Rougesoccupied positions at all levels of government. Hun Sen considered thepossibility for trials but emphasized that they should be done in thecontext of war and peace [and] in the context of national reconciliation,

which is all one package.22

D. Choosing a Tribunal over a TruthCommission

It was in that context that the United Nations, led by the UnitedStates and allied Western powers, began to press more assertively fortransitional justice. Thomas Hammarberg, the UN Secretary-Generalshuman rights representative in Cambodia, called for a truth commission.23

In early 1999, a Group of Experts appointed by UN Secretary-General Kofi Annan recommended an international trial of some twenty tothirty suspects. Though noting that a truth commission could not replaceprosecutions for Cambodia in terms of the goals of justice, closure andaccountability, the UN Group of Experts recommended a process ofreflection among Cambodians to determine the appropriateness and

20Seth Mydans, Under Prodding, 2 Apologize for Cambodian Anguish, N.Y.TIMES,Dec. 30, 1998.

21 On Cambodian responses to the defections and subsequent statements of KhieuSamphan and Nuon Chea, see Wendy Lambourne, Post-Conflict Peacebuilding: Meeting

Human Needs for Justice and Reconciliation, 4 PEACE, CONFLICT AND DEV. 1, 11-12

(2004).22Cambodian Prime Minister seeks reconciliation through reconstruction, EIRNEWS

SERVICE, Feb. 12, 1999 (interviewing Hun Sen).23 Report of the Special Representative of the Secretary-General for Human

Rights in Cambodia, Mr. Thomas Hammarberg, submitted in accordance withCommission resolution 1996/54, Commission on Human Rights, U.N. Doc.E/CN.4/1997/85, 31 January 1997, D.


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potentially the design of a truth commission for Cambodia.24 Hun Senresponded by saying he preferred a truth commission that would swapamnesty deals for Khmer Rouge confessions.

There was little political space available for a truth commission,however. Some international observers saw it as a way for the Cambodiangovernment to avoid delivering justice. Cambodian political elites andsome international donors may also have been concerned about a truthcommissions ability to investigate the multitude of unclean hands inCambodias modern history. There were also concerns that any suchprocess would risk reopening old wounds and destabilizing fragilerelations between former Khmers Rouges and their neighbors.

In terms of institutional sequencing, then, there was not muchchoice; both the Cambodian government and the United Nations favored atribunal rather than a truth commission. Both invoked the concept of

reconciliation, but to different political ends. The United Nations arguedthat justice would facilitate reconciliation and that an internationaltribunal, perhaps in The Hague, would be the most stable and legitimate.Hun Sen contended that sending Khmer Rouge suspects to a foreign courtwould reignite the insurgency and that the government knew best how tokeep the peace. The CPPs favored form of stability implied furtherconsolidation of domestic political dominance. After several years of tensenegotiations, the two sides compromised, agreeing to form a hybridtribunal within Cambodias judicial system.

III. THE KHMER ROUGE TRIBUNAL,2006-PRESENT

The result was the Extraordinary Chambers in the Courts ofCambodia (ECCC), a mixed tribunal combining international and domesticlaws, procedures, and personnel.25Both sides favored a relatively narrowjudicial inquiry focused on surviving senior leaders and others deemedmost responsible for gross human rights abuses during Pol Pots reign.The tribunal was thus designed in a manner that would contribute towarda set of truths acceptable both to its national and international sponsors.Each side believed it would foster a form of reconciliation, but they

24 Report of the Group of Experts for Cambodia established pursuant toGeneral Assembly Resolution 52/135, 18 February 1999, 200, 219.

25Cambodia enjoys an edge, appointing a majority of judges and occupyingkey administrative functions, such as the heads of the Public Affairs office and theVictims Unit. For a detailed review of the courts judicial and administrativestructure, see Anne Heindel, Overview of the Extraordinary Chambers, in ON TRIAL,supra note __, at 85-12; John A. Hall, Court Administration at the ECCC, in id. at 172-81.


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differed on the particulars. International actors and human rightsadvocates generally sought a process that would strengthen the rule of lawand by extension drive domestic political reforms in Cambodia; the CPP

sought a brand of reconciliation that would reinforce its domestic politicalposition.Most Cambodians surveyed about the tribunal process sought

justice but also put a high priority on learning the truth about theirpersonal suffering and about the reasons for the terror of DemocraticKampuchea. Many sought explanations from Khmer Rouge leaders,apologies, and an opportunity to participate. Unfortunately, the architectsof the ECCC did not design the tribunal in a way well suited to satisfythose preferences. To a large degree, these were left to civil society tofulfill.

A. Design of the Tribunal

Courts have inherent limitations as mechanisms for promotingtruth and reconciliation. They necessarily focus on facts most relevant todetermining the guilt or innocence of the accused. Thus, they can have theunintendedor in some cases intendedconsequence of maskingstructural and systemic patterns of injustice that may be at the root of themass violence.26 Trials are also complex and can be difficult for ordinarysurvivors to follow. Advocates contend that they facilitate reconciliationby assigning culpability, acknowledging victims suffering, expungingimpunity, and helping build a stronger rule of law. Those outcomes are alleminently desirable, but they do not automatically lead to a broadrendering of the truth or to reconciliation. In fact, by reinforcing a victim-perpetrator dichotomy, trials may further entrench post-conflict socialdivisions.27

There are nevertheless important strengths in the ECCCsinstitutional design, proceedings, and setting that give the tribunal thepotential to facilitate truth-telling and contribute to reconciliation. TheECCCs in-country setting facilitates connections with the public thatwould be impossible for trials in The Hague. The ECCC also hasmechanisms enabling survivors to submit complaints and an innovativescheme whereby victims can join the proceedings as civil parties in

26 Rama Mani, Reparation as a Component of Transitional Justice: PursuingReparative Justice in the Aftermath of Violent Conflict, in OUT OF THE ASHES:REPARATION FOR VICTIMS OF GROSS AND SYSTEMIC HUMAN RIGHTS VIOLATIONS53, at53, 68 (K. De Feyter et al., eds. 2005).

27Id. at67.


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addition to other forms of participation. Yet the tribunal has made slowprogress to date, completing one trial but suffering from chronic politicaland administrative crises. Its provisions for victim participation have also

had mixed success.28

B. Victim Participation

Participation in the ECCCs proceedings might have enabledCambodians to speak the truth and have their voices heard. In theory,increasing victims active involvement in a trial process is more likely toresult in victim healing.29 In practice, the forms of survivor participationallowed at the ECCC witness testimony, civil party participation, thesubmission of written complaints, and attendance in the viewing hall have so far failed to contribute much to this form of truth.

The first form of participation is through testimony, which offersthe opportunity for victims to interact most intensively with the judicialprocess. At times, testifying can have a cathartic effect.30 Yet testifying, atleast in Case 001, has been insufficiently empowering for participants for afew reasons. First, the Trial Chamber has used its rules of conduct todiscipline witnesses whose testimony strayed beyond the limited scope ofthe Chambers evidentiary needs.31 The courts inquiries, which arerestricted to admissible evidence, do not always match the interests orneeds of victims. Judges have asked witnesses to restrain themselvesemotionally and restrict their testimony to only those facts that judgesconsider useful. Second, the ECCC has been inaccessible to many of thewitnesses both because of the rigidity of its technical rules regardingtestimony and its intimidating and unfamiliar appearance.32 Witnesses

28 See generally Toni Holness and Jaya Ramji-Nogales, Participation as

Reparations: The ECCC and Healing in Cambodia, in CAMBODIAS HIDDEN SCARS, supranote __, at 172.

29Brandon Hamber, The Dilemmas of Reparations: In Search of a Process-DrivenApproach, in OUTOFTHEASHES:REPARATIONFORVICTIMSOFGROSSANDSYSTEMATIC HUMAN RIGHTS VIOLATIONS, at 135, 149 (K. De Feyter et al.,eds. 2005).

30John D. Ciorciari and Anne Heindel, Trauma in the Courtroom, in CAMBODIASHIDDEN SCARS, supra note __, at 123-29 (providing some examples from the Duchcase, as well as counterexamples suggesting re-traumatization).

31Toni Holness and Jaya Ramji-Nogales, Participation as Reparations: The ECCCand Healing in Cambodia, in CAMBODIAS HIDDEN SCARS, supra note __, at 172, 174-75.

32Id.at 177.


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have become preoccupied with rule compliance, hindering the expressionof the substance of their testimony. Third, some testifying survivors havefound the physical structure and technologies of the ECCC intimidating

and emotionally challenging.33

The imposing physical presence of thecourt building and the sophisticated technology upon which the courtprocess relied were often entirely alien to witnesses, many of whomscarcely have access to electricity in their home villages.

The ECCC is the first international criminal tribunal to implement asecond form of victim participation, the civil party process. Through thismechanism, victims who allege that they suffered direct abuses as a resultof a defendants conduct can participate in the proceedings by filingdocuments and presenting arguments before the tribunal.34 The civil partyprocess has been limited or problematic in a variety of ways, and as aresult has failed adequately to enable Cambodian voices. First, the ECCC

Internal Rules necessarily preclude most Cambodians from participating ascivil parties if they cannot establish a link to a particular defendantscrimes. Indeed, in the first trial against Duch, the former head of theKhmer Rouge torture and interrogation facility at Tuol Sleng, the tribunaldismissed applications of some for failure to prove a close bond of affectionwith or dependency on one of Duchs victims.35 The extent of participationby those selected was also limited given legitimate resource and timeconstraints in the court.36 The relatively low number of civil partypetitioners suggests a fear of proceedings; it may also reflect a lack ofdetailed knowledge about or interest in the ECCC.37

33Id.

34 Internal Rules of the Extraordinary Chambers in the Courts of CambodiaRev. 8) (revised Aug. 3, 2011) [hereinafter ECCC Internal Rules], r. 23.1.

35ECCC, Transcript of Trial ProceedingsKaing Guek Eav Duch, Case FileNo. 001/18-07-2007-ECCC/TC, at 27 (July 26, 2010) [hereinafter 26 July 2010transcript].

36See Sarah Thomas, Civil Party Participation at the ECCC, IntLawGrrls (July 15,2008), http://intlawgrrls.blogspot.com/2008/07/civil-party-participation-at-eccc.html (discussing the reasons for the ECCCs change in attitude, fromwelcoming to exclusionary, toward civil parties).

37The 2008 Berkeley survey found that 85% of respondents reported having no

or limited knowledge of the ECCC. 2009 Berkeley Report, supra note __, at 3. The2010 survey showed progress: only 38% of respondents described their knowledgeof the ECCC as limited, while 67% could accurately describe the basic hybridnature of the court. 2011 Berkeley Report, supra note __, at 3. A 2009 survey by theInternational Republican Institute again showed that general public awarenessabout the trials had risen and that roughly one third of respondents had seen partof the trials on television. International Republican Institute, Survey of


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A third way to participate is through victim complaints, whichmight have presented an opportunity to enable victims to speak the truthand be heard. Here the courts main challenge has been capacity. Given

the huge number of aggrieved victims, the courts understaffed,underfunded Victims Unit has had a difficult time even acknowledgingcomplaints in a timely manner, which risks undermining petitionersconfidence in the exercise. In 2009, a non-Cambodian with strong ties tothe government and links to a Marxist organization became head of theVictims Unit.38 She later stepped down, but to some survivors thatappointment diminished the units legitimacy. Public confidence in thetribunal, and particularly the Victims Unit, is imperative if participation isto be reparative.

A fourth way to participate is to observe the trial proceedings fromthe gallery or on television. The ECCC Internal Rules authorize judges to

limit observers emotional expression during trials,39

which has hinderedthe potential reparative effect that might have resulted from a moreinteractive process. Although one of the espoused benefits of an in-countrytribunal is its proximity to survivors, the facility in Phnom Penh remainsinaccessible to most indigent survivors in the countryside, and televisedviewing is unavailable in most of the country.

C. The ECCCs Effects on Reconciliation to

Date

There is some evidence that the ECCC is contributing toreconciliation if we define the term as unity, communication, and

Cambodian Public Opinion, July 31-August 26, 2009,, at 32-39.

38One Khmer Rouge survivor wrote, [I]t is both absurd and insulting to havea Marxist advocate representing the victims of a Marxist regime, which was beingtried by the court of law. Chanda Chhay, Open Letter to Dr. Helen Jarvis,Appointed Head of the Victims Unit at the Extraordinary Chamber in the Court ofCambodia (June 20, 2009), . Patrick Falby, Cambodia KRouge court leaves victims disappointed,AFP, Sept. 13, 2010.

39ECCC Internal Rules, r.37.1. Where, in the view of the Chambers, any person isdisrupting the proceedings, they shall first issue a warning. In cases of continued

disruption, the Chambers may order the person disrupting the proceedings to leave or be

removed from the courtroom or the premises of the ECCC and, in case of repeated

misconduct, may order the exclusion of that person from attending the proceedings.


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compassion.40 The 2010 Berkeley survey found that 80% of respondentsbelieved the ECCC would help rebuild trust and promote nationalreconciliation in Cambodia, and roughly 25% expected that the trials

would help ease mental anguish among individual survivors.41

Finally,contrary to the expressed fears of the Cambodian government that effortsto end impunity would lead to fresh violence, the first five years of theECCCs operations have not prompted outbreaks of violence, andupheaval appears unlikely in the near future. The passage of time is onereason, but another appears to be broad-based public acceptance of thebasic legitimacy of the process.

However, the ECCC is also plagued by severe and ongoingweaknesses that limit its potential to bring justice, truth, or reconciliation tovictims of the Pol Pot regime. Public in-fighting between the UnitedNations and Cambodian government has intensified the politicization of

the process and eroded the tribunals independent judicial credibility.42

Inparticular, a feud between the Cambodian government and selected UNstaff about whether to add additional defendants has caused both delayand despair among some survivors, who seek to see additionalprosecutions.43 A significant number of Cambodians remains skeptical ofthe contribution of the trials to reconciliation. They retain deep-seatedanger toward both Khmer Rouge leaders and the lower-level cadres whoinflicted abuse on their families.

Another crucial limitation of the civil party scheme relates toreparations. Cambodia clearly lacks the financial resources to provide alevel of financial restoration that would compensate millions of victimsfully for the personal and economic losses they suffered. In the ECCC,Internal Rule 23 quinquies provides that the court may award only

40See infra discussion of Cambodian definitions of reconciliation. Interviewswith survivors after the Duch trial suggest a modest positive contribution formany observers of the process but also residual anger and a suspicion of thesincerity or value of apologies by those deemed most responsible for KhmerRouge atrocities. See John D. Ciorciari and Sok-kheang Ly, The ECCCs Role inReconciliation, in ON TRIAL, supra note__, at 334-39.

412011 Berkeley Report, supra note __, at 7-10.

42See, e.g.,John Hall,A U.N. Fiasco in Cambodia, WALL ST.J.ASIA, Oct. 5, 2011;and Sophal Ear, Khmer Rouge Tribunal vs. Karmic Justice, INTL HERALD TRIBUNE,Mar. 17, 2010.

43 See, e.g., Statement by the International Co-Investigating Judge,.


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collective and moral reparations to Civil Parties.44 It adds that suchreparations shall be awarded against, and be borne by convicted personsand may comprise orders to publish the judgment in news or other media

at the convicted persons expense; orders to fund a non-profit activity orservice that is intended for the benefit of Victims; or other appropriateand comparable forms of reparation.45

The language of Rule 23 does not necessarily limit reparations to aconvicted persons resources, but it also makes no explicit provision forother sources of funding. Duch responded to an inquiry regardingreparations by stating that he does not have any ability to assist anybodyat this stage.46 Other defendants are also apt to have little if anything tocontribute to financial reparations. Any reparative awards will at best beof symbolic significance when measured against the myriad survivors whoendured their brutal policies.

The tribunal has the power to grant collective and moralreparations, and non-governmental groups suggested a variety of options,such as health clinics and memorials. However, the court lacks the powerto require government action to establish such facilities and depends ondonor resources to carry out its mandate. At the end of the Duch case, itoffered victims only two meager forms of collective and moral reparation:inclusion of the names of civil parties and their relatives who died at S-21in the judgment and an online compilation of statements of apology madeby Duch during the trial.47

IV. REMAINING CHALLENGES AND LESSONS LEARNED

Cambodia has taken some steps toward truth and reconciliation,but the process remains far from complete. Cambodias experience withtruth and reconciliation suggests several lessons that can be usefullyapplied in South Korea and other states working to implementrecommendations related to truth-telling, memory preservation, reparativejustice, apologies, and reconciliation. The role of civil society has beencrucial in implementing each of these goals in Cambodia. While the officialtransitional justice mechanisms to date have been less than effective inachieving these goals, the ECCC has created political space that has madeprogress towards these goals possible.

44See ECCC Internal Rules, supra note 34, r. 23 quinquies.

45Id.46ECCC, Transcript of Trial ProceedingsKaing Guek Eav Duch, Case File

No. 001/18-07-2007-ECCC/TC, at 115 (Aug. 17, 2009).

4726 July 2010 transcript, supranote __, at 667-68.


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A. The Role of Justice

The importance of justice to reconciliation, both in its retributiveand restorative forms, has been clear in Cambodia. The failure to dealdecisively with the problem of impunity has impeded reconciliation formany Cambodian survivors. Youk Chhang, the director of theDocumentation Center of Cambodia (DC-Cam), has argued that: Peacerequires more than the absence of armies in open combat. A peacefulsociety is a just society, and the Cambodian people have not yet foundjustice. Peace will not truly come to Cambodia until there is real justice forthe crimes of the Khmer Rouge regime.48 The ECCC has put a handful ofpeople on trial, but slow progress and their advancing ages means theymay never be convicted. The narrow scope of the courts jurisdiction also

leaves many observers perceiving the tribunal more as political theaterthan justice. Participants in the trial, who have been few in numberrelative to the millions of victims of Khmer Rouge brutality, generally havebeen unable to contribute to truth-telling in a form that would beempowering to them. Without genuine apologies or explanations from thearchitects of Khmer Rouge terror, many have been unable to trust orforgive former Khmer Rouge cadres living in their midst.

Cambodia also shows the difficulty of using judicial processes as ameans to provide reparative justice. Khmer Rouge misrule and years ofensuing war decimated an already weak economy and left the state withlittle capacity to provide meaningful reparation to victims even if it hadwished to do so. South Koreas greater wealth may enable it to offer non-trivial compensation to many victims, but if Cambodian survivorsattitudes are any indication, money will be far from sufficient to providemeaningful reparation. Relatively few Cambodians interviewed about theKhmer Rouge accountability process seek financial remedies. Many moredemand the truth about lost relatives and the circumstances of their ownsuffering.

B. Truth through Public Education

A number of scholars and human rights groups have advocated atruth commission in Cambodia.49 A body empowered to investigate and

48 Youk Chhang, Speech for the Truman-Reagan Freedom Award,Washington, DC, Nov. 4, 2000, .

49 See, e.g., Jaya Ramji, Reclaiming Cambodian History: The Case for a TruthCommission, 24 FLETCHER FORUM OF WORLD AFF. 137 (2000).


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remedy past abuses could build upon the limited truth told by the ECCC.Nevertheless, a formal truth commission in Cambodia is quite unlikely.Donors have already begun to waver on the commitment of additional

resources to the ECCC, and the government has long been wary of a broad-based TRC process. The ECCC can help through effective outreach, but itsaccount of the past will be focused on the specific charges against thedefendants in custody.

In the absence of a broader TRC process, educational initiatives areparticularly crucialas they likely will be in South Korea and other statesseeking to implement truth-telling recommendations. Cambodians want toknow more about their countrys history. The 2010 Berkeley survey foundthat 67% of Cambodians who lived under the Khmer Rouge and 85% whodid not wanted to know more about the Pol Pot era.50

In recent years, the Cambodian government has made more

extensive progress by partnering with DC-Cam and other civil societygroups.51 For years, Cambodian textbooks had only a single line devotedto Khmer Rouge history. The Cambodian government generally shiedaway from grassroots programs that encourage more robust discussion ofKhmer Rouge atrocities and contribute to a fuller historical account. Thisavoidance was in part due to the intense emotional sensitivity of the issuesand possibility of social conflict and in part due to the fear that a fullvetting of the truth would expose some unwanted facts about the history ofgroups or individuals currently in power.

Since 2008, DC-Cam and the Ministry of Education haveundertaken a major nationwide project to reform school curricula, added acourse at secondary school and university levels on Khmer Rouge history,and trained teachers and lecturers on pedagogy. With authority from thegovernment, DC-Cam has also established an extensive archive ofdocuments on Khmer Rouge history available to researchers. Any countrypursuing the emerging norm of a right to the truth should enact a lawpertaining to the declassification and disclosure of government recordsrelated to human rights abuses.52 This and other measures can assist civil

502011 Berkeley Report, supra note __, at 32.

51DC-Cam is a non-governmental organization dedicated to promoting memory andjustice with respect to Khmer Rouge atrocities. It was established in 1995 as the field

office of Yale Universitys Cambodian Genocide Program. In 1997, DC-Cam became an

independent Cambodian NGO with funding from diverse states and international agencies,and it runs projects related to Khmer Rouge history, public education, accountability

promotion, community reconciliation, and support for the ECCC. Seewww.dccam.org.52 The right to the truth for victims of human rights violations has been

recognized by a number of United Nations bodies, as well as by regional humanrights courts and numerous national governments though the establishment ofspecific archives or through general freedom of information laws. See, e.g.,


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society to play a central role in disseminating truth through publiceducation.

C. Reconciliation through Community Dialogues

Though the ECCC has had a mixed record in establishingreconciliation, it has spurred innovative and effective civil society efforts toengage Cambodians at the community level. These structured dialogueshave enabled more widespread consumption of the results of the trials aswell as conversations about the losses suffered at the hands of the KhmerRouge. Perhaps most importantly, they create a space for victims andperpetrators to interact and foster understanding and forgiveness.

DC-Cam has brought over fifteen thousand representatives ofcommunities throughout Cambodia to learn about the ECCC. At the

beginning of these visits, the DC-Cam hosts legal training sessions thatexplain the Courts jurisdiction and procedures and describe thebiographies of the defendants. After attending hearings at the ECCC, thecommunity representatives return to the DC-Cam for a facilitateddiscussion of their experience at the Court. They take this experience backto their villages, where they discuss and lead group dialogues about thetrials (with the support of DC-Cam staff and other experts). Thesecommunity forums include Cambodians from neighboring villages that donot have a representative at the trials. The public discussion of sufferingunder the Khmer Rouge brings the shared experiences of the villagers intothe open and begins the process of community-wide healing.

The community dialogues also play an important role for thesurviving Khmer Rouge cadres, who continue to be haunted by the fear ofrevenge. Many former lower-level cadres live in perpetual worry that thevictims who live in their villages will engage in violent retribution againstthem. Former Khmer Rouge cadres are grateful for the opportunity thatthe dialogues provide to foster understanding among community membersand opportunities for forgiveness. These community forums also help todispel any fears or misunderstandings that former cadre may have aboutthe possibility of being prosecuted by the ECCC.

Updated Set of Principles for the Protection and Promotion of Human Rightsthrough Action to Combat Impunity, UN Commission for Human Rights, UN Doc.E/CN.4/2005/102/ADD.1, Feb. 8, 2005; Order of the Inter-American Court ofHuman Rights, Case of Claude-Reyes et al. v. Chile, Judgment of Sept. 19, 2006(Merits, Reparations, and Costs); Right to the Truth, Human Rights CouncilResolution 9/11, UN Doc. A/HRC/Res/9/11 (2008); International Convention forthe Protection of All Persons from Enforced Disappearance, G.A. res. 61/177, U.N.Doc. A/RES/61/177 (2006), entered into forceDec. 23, 2010.


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Perhaps most importantly, the community dialogues empowerCambodians themselves to structure a healing process that is mostappropriate to address their unique needs. This community input is

valuable not only in ensuring the legitimacy of the forum and theengagement of villagers, but also in creating a lasting impact oncommunities. A country seeking to build a reconciliation process shouldconsider how they can ensure that it is not only participant-designed anddriven but also inclusive of all societal groups, including perpetrators.Moreover, even if primary accountability efforts do not meet communityneeds, the political space they create can be leveraged in the service ofprocesses that are more responsive to local concerns.

D. Public Memorials and Ceremonies

Cambodian experience also points to the value of neutral, non-political public memorials and ceremonies, such as a monument to thedeparted and a national day of remembrance. In Cambodia, ceremoniesand memorials have been more conducive to healing when they havefocused on sharing communal suffering and honoring loved ones ratherthan focusing enmity on perpetrators and their kin. They have also beenmost effective when they have tapped into local cultural and religiousnorms associated with healing. In Cambodia, that has often meantappealing to Buddhist principles or tolerance and forgiveness, but otherfaiths have proven equally central to reconciliation efforts elsewhere. Astrong role for local community and religious organizations is crucial.Such ceremonies and events must be above the fray of partisan politics ifthey are to encourage reconciliation rather than sowing renewed divisions.In practice, that means advocates of such initiatives need to exerciseconsiderable discretion and restraint.

CONCLUSION

A few broad lessons emerge from the Cambodian case. We startfrom the premise that measures in pursuit of truth and reconciliation needto be designed and sequenced in the context of local culture and politicalconditions to be effective.53 The implementation of truth and reconciliationinitiatives must be driven by the preferences of those who need to be

reconciled. Studies like those undertaken by the UC-Berkeley HumanRights Center deserve replication elsewhereinviting views of survivors

53Jaya Ramji-Nogales, Designing Bespoke Transitional Justice: A Pluralist ProcessApproach, 32 MICH.J.INTL L.1(2010).


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on what would best help them heal.54 This is especially true in societies inwhich political gridlock slows progress at the official level and drawsinitiatives into partisan debates. However, even where power politics

drives institutional sequencing, these politicized processes may help tocreate political space for bottom-up, grassroots truth and reconciliationefforts.

Civil society groups can and should play a central role in suchreconciliation initiatives. Such groups will be best able to build neutral,non-political forums for truth telling involving genuine dialogue betweensurvivors and perpetrators.55 Dialogue can humanize complex historicalconflicts and enable former adversaries to engage positively with oneanother. Moreover, in order to create a more comprehensive and accuratehistorical picture and help answer the question of why?, the processneeds to allow safe space for both victims and perpetrators to share their

experiences. The engagement of civic and religious leaders can help toensure that these dialogues are tailored to local sensibilities and thereforemore effective as reconciliation processes.56

54Ramji-Nogales, supra note X at 63-66.

55Ramji-Nogales, supranote X at 61-62.

56Ramji-Nogales, supranote X at 66.

lessons from de cambodian expirience with truth and reconciliation

Documents