Symposium on the ECCC: The Fate of ECCC Archives and Documentation

The Extraordinary Chambers in the Courts of Cambodia (ECCC) was created by the Cambodian government in partnership with the United Nations. Its purpose was to prosecute crimes under international and Cambodian law committed between 1975 and 1979, when Cambodia was ruled by the Communist Party of Kampuchea (CPK), better known as the ‘Khmer Rouge’. On 22 September 2022, the ECCC’s appeal chamber delivered its final judgment, upholding former CPK leader Khieu Samphan’s conviction for war crimes, crimes against humanity and genocide.

Responding to that final judgment, this Opinio Juris symposium reflects on the ECCC’s trials, tribulations, and legacy. In this post, Boravin Tann examines the issues surrounding the preservation of the ECCC’s achieves.

[Boravin Tann is a researcher and lecturer at the Center for the Study of Humanitarian Law, Royal University of Law and Economics since 2017. Her research concerns the transitional justice process in Cambodia, including victim participation and genocide education of the young generation.]

Since 2007, the Extraordinary Chambers in the Courts of Cambodia (ECCC) has had nearly 600 days of trial heard, hundreds of victims, witnesses and experts testified and thousands of pages of documents and materials examined in Cases 001 and 002. This does not include the unclassified documents and materials in Cases 003 and 004. In preparation of the ECCC’s closing, one of key priorities of the residual functions is to ‘maintain, preserve and manage the archives, including the declassification of documents and materials’.It is however unclear what and how the process is going to be.

A Recipe for Future Justice and Reconciliation

The ECCC, with its hybrid nature, is an ideal site to study the construction of legal and historical memories in the transitional justice (TJ) process in Cambodia. The United Nations (UN) Special Rapporteur on the promotion of truth, justice, reparation and guarantee of non-recurrence affirmed the role of memorialization and protection of archives in enabling societies to learn the truth and regain ownership of their history. The UN Secretary-General characterized archives in transitional justice as ‘tools for fostering reconciliation and memory.’

The discussion of the ECCC archives is more than a historical record; much of it is related to the legacy discourse. It concerns the attempts to come to terms with a legacy of large-scale abuses in order to ensure accountability, serve justice and achieve reconciliation. The 2018 study on justice and reconciliation for the Khmer Rouge victims also reiterated the significance of archives in Cambodia’s truth-seeking process. The scope of the historical records has been controversial in how the story (partially) unfolded.

Although the discussion on the custody and disposition of ECCC archives has been ongoing for several years, many questions remain unanswered, such as: what materials constitute the ECCC archives; how huge is their volume; what types and forms of materials are included; what a victim-centered approach to archives would entail; whether the process would extend beyond mere collection of records, for example, to the construction of archives as legal, judicial and historical memories for Cambodia; and whether the ECCC archives are intended to be a living memory or a dead record.

The process of creating the ECCC archives is also often caught up in a political tussle about ownership of the narrative of the legacy. The ad hoc nature of the ECCC, and the lack of a concrete institutionalization completion or exit strategy, further impedes the attempt. The UN Secretary-General, Kofi Annan, also affirmed that the complete strategy or intended legacy should be considered from the moment of establishment. In 2012, records, archives and libraries were also addressed as one of the seven areas of activity under the ECCC legal framework in the ECCC Legacies Conference in Phnom Penh. However, it may have been an empty box with the “ECCC legacy” as a label, or possibly a sealed Pandora’s box.

Custodial Institution of the ECCC Archives

Although the UN and the Royal Government of Cambodia have the custodial rights to the ECCC archive, it is unclear who will be in charge. According to a 2019 survey of the Documentation Center of Cambodia (DC-Cam), it was commonly agreed that the ECCC archives must be stored at a credible, independent, neutral and trusted institution while being accessible to the public. The institution should also be equipped with technological and technical adequacy to fulfil its functions.

The Legal Documentation Centre relating to the ECCC (LDC) is now tasked to be in charge of ECCC archives and documentation as well as physical space for the operation of ECCC residual functions. The ECCC also endorsed in its reparation project the provision of access to the judicial records of the Khmer Rouge Trials and civil party materials at the LDC in its judgement in Case 002/02. About 24,000 public files in Case 001 and Case 002/01 are available at the LDC. It is noteworthy that LDC, recently established in 2015, was not initially part of the ECCC’s legacy project and discourses. It is therefore uncertain of the role and required (technical and technological) capacity essential for the sustainable and effective maintenance, management and preservation of the huge amounts of ECCC physical and digital archives as well as the declassification process of materials and documents.

Archive and documentation do not concern with only the ECCC and/or LDC, but it requires multiplicity and concerted efforts of actors and stakeholders to achieve the long-term task. This highlights the necessity for more cooperation and coordination among relevant institutions with resources and expertise in the management and preservation of archives, for example, DC-Cam, Tuol Sleng Genocide Museum, and National Archives of Cambodia. In light of the significant role of non-governmental organisations in Cambodia’s TJ, this also calls for consolidated efforts to manage the ECCC-related archives for long-term collective interests.

From Collected Records to Collective Memories

In Cambodia, the management and preservation of archives as historical records is regulated under the 2005 Law on Archives. Archives of any kind should be used for its value to the greatest extent possible. Regardless of the technical and procedural aspects of the ECCC’s archival process, it should exhibit the following characteristics: authenticity, reliability, integrity and accessibility. In essence, it should serve the best interests of inclusive and quality research and education in parallel with victim-centered recognition, remembrance and reconciliation in Cambodia. More importantly, internalization and institutionalization are essential in the planning, implementation and monitoring process for sustainable peace and justice.

Beyond the legal and judicial aspects, several other integral dimensions related to the ECCC proceedings should also be considered in this regard, namely the translation structure and materials (Khmer, English and French) and the pool of domestic and international human resources trained and working at the ECCC throughout its existence. This would serve as an asset for domestic and regional endeavors to ensure accountability, justice and memorialization.

The ECCC is dealing with historical records that are more than four decades old and have a nationwide geographical scope. This further hinders the archival efforts and process. However, it is not the first tribunal in archival management and preservation in a transitional justice setting. Lessons learned, best practices and expertise from other international criminal tribunals should provide an account for the reflection of Cambodia’s needs and interests. Nonetheless, only Cambodia has the key to open the box while the UN holds the box.