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Empiricizing Transitional Justice

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  1. Jaya,

    I’m wondering if the distinction between transitional justice and criminal justice is being unconcsiously elided here. Was the original purpose of the ECCC conceived of as a vehicle of “transitional justice” or is that a conception others have brought to the table?

    From the ECCC’s website we read:

    “In 2001 the Cambodian National Assembly passed a law to create a court to try serious crimes committed during the Khmer Rouge regime 1975-1979. This court is called the Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed during the Period of Democratic Kampuchea (Extraordinary Chambers or ECCC).

    The government of Cambodia insisted that, for the sake of the Cambodian people, the trial must be held in Cambodia using Cambodian staff and judges together with foreign personnel. Cambodia invited international participation due to the weakness of the Cambodian legal system and the international nature of the crimes, and to help in meeting international standards of justice. An agreement with the UN was ultimately reached in June 2003 detailing how the international community will assist and participate in the Extraordinary Chambers.

    This special new court was created by the government and the UN but it will be independent of them. It is a Cambodian court with international participation that will apply international standards. It will provide a new role model for court operations in Cambodia.”

    This appears to make clear that the purpose of the ECCC is first and foremost about the endeavor to meet international criminal standards of justice and not, at least in the first instance, about transitional justice as such, however much that may be a by-product or spillover effect of such an attempt. And I don’t want to claim that there is no overlap whatsoever between criminal justice and transitional justice.

    And I would think one would not at all be surprised by the bulk of the survey results, given the slaughter of “intellectuals” and so many others by Pol Pot’s regime and the lingering effects of war on the country, not to mention a state with only the barest of democratic institutions and a fragile national government, indeed, all the factors that make for conditions of transitional justice.

    In any case, we do need to ask ourselves if the ECCC is simply about “being responsive to the needs of local populations,” and I suspect the answer is that that is not its intended design or purpose, at least with regard to criminal culpability and justice.

    I’m not at all against developing the means and methods, let alone clearly articulating the principles and purposes, of transitional justice, but it seems we should maintain a distinction between (international) criminal justice and law, on the one hand, and transitional justice, on the other.

    In short, I think we should not be critical (explicitly or implicitly) of the failure or shortcomings of the ECCC with regard to transitional justice goals when those goals (however urgent or worthy) are, strictly speaking, outside its mandate.

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