Academic journal article Washington International Law Journal

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

Academic journal article Washington International Law Journal

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

Article excerpt

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. Part IV evaluates the legal and political limitations of the CEC, including an uncertain guarantee of impartiality, limited public involvement, and constrained personal jurisdiction. Part V argues that as a result of these limitations, the CEC conflicts with Article 52 by undermining both truth and heating. Finally, Part VI recommends that Cambodia should supplement its CEC with informal mechanisms of transitional justice that can adequately address the CECs weaknesses,13 rather than implement an economically and politically unfeasible "truth and reconciliation commission" ('TRC").14 Cambodia's implementation of these supplemental mechanisms can help address the tension between the CEC and Article 52 and bring Cambodians closer to reconciliation in the wake of their tragedy.

II. CAMBODIA' S MODERN HISTORY IS CHARACTERIZED BY WAR, DEATH, DESTRUCTION, AND DELAYED ACCOUNTABILITY

Cambodia's post-colonial history has been anything but calm and stable. War, death, destruction, and delayed accountability have traumatized Cambodia since its independence from France in 1953.15 Because Cambodia's history is essential to understanding its current response to the Khmer Rouge, a brief introduction to the atrocities committed by the Khmer Rouge and the events leading up to the creation of the CEC is essential.

A. The Khmer Rouge Terrorized Cambodia Between 1975 and 1979

In 1963, the United States launched massive air bombing campaigns in Cambodia, campaigns that produced mass Cambodian casualties. …

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