Reconciliation in the Wake of Tragedy: Cambodia's Extraordinary Chambers Undermines the Cambodian Constitution

Article excerpt

Abstract: Between 1975 and 1979, the Khmer Rouge regime was responsible for approximately 1.7 million deaths caused by deportation, starvation, murder, and torture. In 2001, Cambodia established the Extraordinary Chambers, an internationalized domestic tribunal, or "hybrid court," to prosecute the perpetrators most responsible for these atrocities. As the Cambodian government's primary legal response to the Khmer Rouge, the tribunal conflicts with the requirements of Article 52 of the Cambodian Constitution, an article that requires a policy of national reconciliation to ensure national unity. Cultural conceptions of national reconciliation coupled with the legislative history and purpose of the constitution strongly suggest that this provision disallows the Cambodian government from pursuing laws and policies that undermine truth or national hearing. However, because of the Extraordinary Chambers' questionable impartiality, limited public involvement, and constrained personal jurisdiction, this tribunal undermines the very truth and healing that are essential to national reconciliation. Cambodia should therefore look to other mechanisms of transitional justice to supplement its tribunal. Given the political and economic infeasibility of a "truth and reconciliation commission," Cambodia should establish informal mechanisms of transitional justice to supplement its tribunal and further national reconciliation.

I. Introduction

As one of thousands of killing fields sprinkled throughout Cambodia, Choeung Ek was a burial ground for Cambodians arrested and tortured at the Tuol Sleng prison in Phnom Penh.1 After prison guards tortured their victims, these innocent Cambodians "were usually forced to kneel at the edge of the mass graves while guards clubbed them on the back of the neck or head with a hoe or spade."2 Researchers believe that the Khmer Rouge executed over 20,000 Cambodians at this site alone.3 With countless killing fields now a permanent part of the Cambodian landscape, the human rights abuses perpetrated by the Khmer Rouge are considered among the worst in human history.4

Almost three decades after these mass killings, Cambodia established the Extraordinary Chambers ("CEC") to prosecute those most responsible for this terror. Neither an international nor a domestic court, Cambodia's CEC belongs to a new category of tribunals referred to as "hybrid courts."5 Hybrid courts, or internationalized domestic courts,6 are a unique blend of international tribunals and domestic courts.7 Though based in the domestic legal system, hybrid courts maintain the international support, legal guidance, and expertise of an international tribunal.

Both Cambodian and international officials have emphasized the potential for Cambodia's hybrid court to promote national reconciliation. However, as the government's primary legal response to the Khmer Rouge, Cambodia's CEC undermines Article 52 of the Cambodian Constitution, which requires Cambodia to "adopt the policy of national reconciliation to ensure national unity . . . ."10 As it currently functions, the CEC is characterized by questionable impartiality, limited public involvement, and restricted personal jurisdiction. These shortcomings weaken the very truth and healing that are essential to the policy of national reconciliation.

With the Khmer Rouge trials anticipated to begin in 2008,11 an examination of the relationship between the CEC and Article 52 is of timely importance. Part II of this comment provides a brief background of the Cambodian genocide, the prosecution of the worst Khmer Rouge offenders, and the CEC. Part III examines Article 52 of the Cambodian Constitution, including the cultural meaning of national reconciliation and the constitution's legislative history in order to explain "the policy of national reconciliation to ensure national unity . . . ."12 It concludes that Article 52 prevents Cambodia from enacting policies that undermine truth and national healing. …