Symposium on the ECCC: “It’s Time for the Record To be Set Straight”? History, Memory, and the Extraordinary Chambers in the Courts of Cambodia

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. Bringing the symposium to a close, in this post Pete Manning reflects on the ECCC’s contribution to memory and history about the Khmer Rouge period.

[Pete Manning is a Senior Lecturer in Sociology in the Department of Social and Policy Sciences, whose authored works include ‘Transitional Justice and Memory in Cambodia’ (Routledge, 2017).]

The final judgement of the ECCC offers an important opportunity to reflect on the social and cultural politics of memory and history that have been implicated and generated within the work of the tribunal. I do so to take stock of the relationship between the ECCC, its partners, and the public audiences and constituencies that it has addressed its work to, and to consider some of the wider lessons of the ECCC for practitioners and scholars in transitional justice and international criminal law (ICL).

Memory and history are fruitful avenues to rethink the work of the ECCC because each allows us to reposition and assess some of the key successes and failures of the court. Transitional justice interventions, including legal mechanisms, work to order and adjudicate on memory and history, and history and memory are located as sites of restoration and renewal from their work. Memory is explicitly called into being within the criminal trial as a site of verification, as competing testimonies are affirmed and denied, and material objects and artefacts that ‘speak’ to memory are tested and gauged as evidence. The didactic role of tribunals is significant and memory is implicated as law furnishes limits of jurisdiction (over time and people). Memory and history are therefore both regulated by and produced through law as it enacts a universe of responsibility and blame that can be more broadly narrativized for public audiences, including through the harms and forms of victimhood that might be formally recognised – and those that are elided.

More broadly, transitional justice and ICL processes tend to be addressed to benefit social and cultural collectives: as an ECCC publicity poster claims “It’s time for the record to be set straight”, implicating the correction of a national history and biography. And, significantly in the case of the ECCC, beyond the courtroom, law can generate and work with a wider raft of (principally civil society led) interventions on and in the name of memory, such as psychosocial, educational, and arts led programmes.

The ECCC generated significant criticism over the course of its 16 years of work, which have often entailed important questions about memory and history. One area of frequent controversy concerned the independence of the court and the interpretation of its personal jurisdiction, which was delimited to “senior leaders” and “most responsible persons” in the initial 2004 agreement over the establishment of the ECCC. A series of highly public Royal Government of Cambodia (RGC) refusals to countenance a wider raft of prosecutions beyond the handful of senior KR leaders indicted in Cases 001 and 002 has been broadly understood to constitute political interference within the ECCC process. Indeed, international observers have cast the issue of political interference on Cases 003 and 004 as the principal failure of the process.

Yet, through the lens of memory and history, it also is instructive of competing claims over how – and by who – the national biography should be authored, and the forms of impunity that are themselves memorable and worthy of attention. Issues of political interference around personal jurisdiction were thought to undermine the quality and quantity of justice that the ECCC could deliver; issues around the political conditioning of the ECCC temporal jurisdiction were not, despite the significant histories of human rights violation before and after the Democratic Kampuchea regime, and the attendant silencing of Cambodian claims to harms that arose from them. The collision of politics and law was – and more broadly must be – made to appear incommensurable. The wider landscape of commentary and scholarship on the ECCC has tended to locate the issue of political interference as symptomatic of a fundamentally flawed process, rather than a feature and pathology of transitional justice and ICL. It is striking that it is this that will be remembered as the signature legacy of the ECCC, especially so given its relative lack of salience for Cambodian communities more broadly. 

The ECCC was tasked with the prosecution of the crimes of Democratic Kampuchea through the injunction that Cambodians could “move forward through justice”. Such therapeutic idioms imply the establishment of shared relationships to past experiences. Yet it should be obvious that the ECCC process has and will mean many different things to different people across Cambodian society. Some groups have more favourable perspectives of the tribunal than others. Many were bought into the trial process and have been disappointed, often because of a sense of disappointment with the promises made by the ECCC.

In our film “At first they don’t believe” (2019), we explored and foregrounded the experiences of two women, Sieng Chanthei and Leay Kimchean, and their engagements with the ECCC. The film involved a double engagement with memory: as a means to acknowledge the protagonists’ experiences of harms under the regime, and for them to then to remember and narrate their encounters with the ECCC – as a mechanism that promised to act on behalf of and ameliorate those harms. Sieng Chantei, whose Vietnamese heritage entailed the loss of several family members under the Khmer Rouge, had participated as a Civil Party, testified at a Victim Impact Hearing, and accounted for her experiences at the ECCC positively. Leay Kimchean, a survivor of forced marriage and complainant, had not been notified of the Case 002/02 verdicts at the time of filming. As we explained the initial Case 002 verdicts, she was angered at the absence of defence contrition and insistent that only an apology could satisfy her. These two stories might instruct of the value of deeper participation for more victims (a logistical impossibility at the ECCC). Yet they also illustrate the extent to which victim needs are heterogenous, the potential that verdicts can fail to satisfy, be met with apathy, and that law needs better sensitivity and space for forms of victim refusal within transitional justice.

In the minutiae of its practice, the ECCC – like all transitional justice interventions – was an imperfect administrative institution. Elsewhere we know that, anecdotally, Civil Party and Complainant contact information was lost, and the court failed to keep its beneficiaries abreast of the process. As one former civil society colleague involved in civil party applications remarked: “People were left behind… We left them behind”.

What now for the future of the ECCC within the landscape of history and memory in Cambodia? The establishment of the ECCC coincided with increasing interest in and a commitment to the renewal and reach of genocide education in Cambodia. Around the work of the tribunal, we have witnessed increased civil society interventions specifically targeted at issues of “intergenerational dialogue” and the (often sparse) knowledge of the Khmer Rouge regime among the young. Educating young people about the regime is thought to service wider metanarratives within transitional justice and ICL: preventing the recurrence of violence, and dignifying the memories and experiences of survivors. The implicit shift in generational emphasis, locating the young as heirs and custodians of memory, raises difficult questions in this context, where memories of the Khmer Rouge remain hotly politicised as a source (and vehicle of critique) of the ruling Cambodian People’s Party.

We might ask if and how a duty to remember for the young can remain genuinely productive, inclusive, and dialogical. And further critical questions of intergenerational memory must address whether, and how, to avoid distraction from other important forms of impunity and advantage that have been continuous or emergent since the Khmer Rouge period and persist today.