16 Nov Symposium on the ECCC: Legal Education – ECCC’s Failed or Missing Attempt?
[Somaly Kum is a research fellow at the Center for the Study of Humanitarian Law in Cambodia who, since 2010, has worked closely with survivors of the Khmer Rouge regime through outreach programs of the Stanford Center for Human Rights and International Justice (Cambodia program) and ADHOC. Boravin Tann is a researcher and lecturer at the Center for the Study of Humanitarian Law, Royal University of Law and Economics since 2017, whose research concerns the transitional justice process in Cambodia, including victim participation and genocide education of the young generation.]
Much of the discussion over the ECCC’s legacies has centered on the organization’s pursuit of justice, reconciliation, and reparation for victims of the Khmer Rouge (KR) regime. Despite their significance in the TJ and national peace building processes, Cambodia’s young people, the third generation of KR victims, are often included from the outset in the outreach programs and some reparation projects to foster intergenerational dialogue. In most transitional justice (TJ) settings, young people are often left out of the process due to their age and social status.
Educating the younger generation about the Khmer Rouge history and the ECCC is believed to be a means and an end in itself to achieve sustainable peace and national reconciliation. Dy Kamboly, the author of A History of Democratic Kampuchea, highlighted that “young generations of Cambodians have to understand how and why the genocide happened, to learn about the effects and consequences” while acknowledging the limitations of the historical narratives in the curriculum textbooks. The KR victims even appeal to having education for younger generations as a possible deterrence and guarantee of non-recurrence of human rights violations through the form of reparation.
Legal Education and Rule of Law
While acknowledging the efforts to include selective KR history in the curriculum for high school students, legal and genocide education are often neglected aspects of transitional justice in Cambodia and other post-conflict settings. The ECCC per se is a legal and judicial institution. One of the legacies of the ECCC is its expected contribution to the respect and promotion of the rule of law in Cambodia, in which the OHCHR in Cambodia has been working on its legacy project. The Defense Support Section (DSS) also provides training as part of the legacy projects on the right to a fair trial and effective defence.
The role of the ECCC in legal education in Cambodia is thus essential. First, the ECCC provides the space for Cambodian legal and judicial staff to gain knowledge and skills, including legal, professional, interpersonal communication and other soft skills necessary for a mixed nationality working environment which have been used in their practices at domestic courts. Second, they further share their knowledge and skills by involving young legal professionals in seminars, workshops, and training on various topics, including criminal procedure and international criminal law.
There have been however no concerted and concrete efforts to internalise its vast jurisprudence and practices in the legal education, national legal and judicial system. Sporadic project-based programs are more common, for example, the ECCC Series of the Raoul Wallenberg Institute (RWI). The latest attempt is the e-learning program on KR history, the first project to comprehensively structure legal history and practices beyond the legal education curriculum.
The complexity of the legal arguments and factual evidence partnered with the hybrid legal and procedural law is probably the main challenge for Cambodian law students and legal and judicial professionals to approach the ECCC archive. It may also be attributed to the missed opportunity of the ECCC at the planning stage to consider recruiting legal academia to be part of the Tribunal as well as the retention of domestic legal and judicial personnel. This also links to the lack of synergy, if not close cooperation, between the international and domestic counterparts to think deep and far.
Small Pieces That Make Big Picture
To further the ECCC’s agenda, it should go beyond recognition and remembrance to reflection on KR history and ECCC legal history. Reflection is possible with more than the comprehension of information and knowledge, but with critical analysis and the (re)generation of knowledge in numerous contexts. Rather than telling Cambodia’s law students and legal professionals what the ECCC is and does, but how and why the ECCC has done it. What else can the ECCC do in the pursuit of justice in Cambodia? What can Cambodia and other countries in the region and the world learn and unlearn from it? Instead of reciting what has been told, it is more important to be critical in various aspects and at various levels.
We view the ECCC as a huge tree. It has grown on fertilizers, water and sun (donors) for almost two decades. What has been seen is tree skin or the canopy of the tree. What has been seen and shown is much less in volume than what was hidden behind the courtrooms. In fact, the (decayed) roots, tons of canopy – big and small, leaves, fruits and animals living on and off the trees remain overlooked. If there is no immediate action to care for and utilize it, the tree will be left to rot and eventually die. Considering the lack of attempt to tell the full story in the past and present, how would the story be told in Cambodian society when the ECCC is gone? When the theatre’s curtains are closed, the story will fade away.
The late Noun Chea frequently challenged the temporal scope of the ECCC, which he believed did not ascertain the truth. “The court is unjust to me because it only took a small part for me to be tried. Only the body was mentioned and not the head and tail of the crocodile, which are very important parts in daily activities. In other words, the root causes and the consequences, which were the events that occurred before 1975 and after 1979, are not to be discussed during these trials.” His microphone was also cut off when he mentioned that his lawyer would like to elaborate on Vietnam’s ambition. Cambodian youth want to know in-depth stories from both sides, i.e., who was behind the killing? Did they really just follow the orders? Why did they kill the Khmer? Why did the international community not help?
Although it may be a bit late, it is not impossible for the ECCC and relevant stakeholders to build a foundation and long-term plan to transfer knowledge, skills and resources to Cambodian youth, in particular law students and legal professionals. They are and will continue to contribute to Cambodia’s efforts to shape legal and judicial reform, the criminal justice system, and respect for the rule of law. It would be a missed opportunity for donors and the international community, such as the UN, to overlook this aspect,, as they did during the KR regime as young Cambodians questioned, “Why the UN did not help Cambodia?” Short-term project-based planning with unrealistic expectations to promote the rule of law will not kill the bird.
For meaningful and forward-looking dealing with the past effort, the process should be as inclusive and responsive as possible. The strategy for the residual functions therefore needs to be carefully identified, considered and tailored to different interest groups. In fact, this closely links with the ECCC archive and documentation. Youth, who make up approximately 30% of the Cambodian population, should be specifically targeted as potential participants, direct beneficiaries, and change agents. More interest should be invested in young law students and legal professionals as beacons of hope, also known as “bamboo shoots who will grow up to be bamboo.”