Politics by other means? The virtual trials of the Khmer Rouge tribunal

Authors

  • DUNCAN McCARGO

    1. Professor of Southeast Asian Politics at the University of Leeds, where he heads the School of Politics and International Studies.
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    • The author would like to thank Alex Bates, John Ciorciari, Thierry Cruvellier, Patrick Falby, John A. Hall, Rob Lemkin, Peg LeVine, Richard Rodgers, Heather Ryan, Judith Strasser, Silke Studzinsky and some anonymous interview informants for sharing their insights and ideas concerning the ECCC. Thanks also to the various centres and programmes at the University of Leeds, Nagoya University, University of Oxford, Harvard University and Columbia University, where I was invited to make presentations of this material. I am particularly grateful to my Leeds and York colleagues from the WUN Transformative Justice Network. This article has benefitted greatly from comments on a draft version provided by Lars Waldorf and by the journal's anonymous reviewers.


Abstract

This article argues that more emphasis should be placed on the political aspects of international tribunals, which are often in the business of reshaping politics as well as simply administering justice. By examining the hybrid Extraordinary Chambers in the Courts of Cambodia (ECCC), popularly known as the Khmer Rouge Tribunal, the article develops arguments previously advanced by Victor Peskin in respect of Rwanda and the former Yuogoslavia. Peskin has suggested that courtroom war crimes trials are paralleled by ‘virtual trials’, in which international and domestic political actors struggle for power and control over the form and outcome of proceedings. He terms these virtual trials ‘trials of cooperation’, in which governments of states where war crimes have been committed seek variously to help or hinder legal proceedings to address those crimes.

Such virtual trials now loom extremely large in the Cambodian case; the Hun Sen government, while exploiting the ECCC to deflect domestic and international attention from the endemic corruption and growing authoritarianism over which it presides, has sought tightly to limit the Tribunal's room for manoeuvre. One trial has been completed, another is about to start, and the international investigators and prosecutors are planning a couple more—but Prime Minister Hun Sen has personally declared his opposition to any further cases going ahead. If the ECCC succeeds in trying only five defendants from the murderous 1975–79 Khmer Rouge regime, justice will not have been done; and wider questions will emerge about the future viability of hybrid tribunals. The Cambodian case demonstrates that where war crimes tribunals are concerned, backroom ‘virtual trials’ need as much academic, policy and media attention as the actual courtroom trials of key defendants.

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