Law, Meaning, and Violence. Ann Arbor, MI: The University of Michigan Press, 2014. xi, 433 pp. (Illustrations.) US$85.00, cloth. ISBN 978-0-472-11930-1.
This book offers the most comprehensive treatment of the Extraordinary Chambers in the Courts of Cambodia (ECCC)—a hybrid criminal court established to try former Khmer Rouge government officials who committed mass atrocities during their reign of terror that lasted from 1975 to the end of 1978.
The co-authors examine the ECCC from their institutionalist perspective, which I find somewhat stimulating because of their in-depth analysis of the Court’s institutional development, its public legitimacy, and its legacy. This major study is important to the extent that some legal institutionalists regard hybrid tribunals as having the potential to help transform world and national politics.
The reader will learn much about the institutional development of the Court (chapters 1 and 2), its structure, and its distinct features. Although the ECCC is based in Cambodia, it has been managed by the Cambodian Government and the United Nations. As an internationalized hybrid court, the two-headed ECCC (“serving two masters” in chapter 3) is not only different from ad hoc tribunals and the permanent International Criminal Court, but also from other hybrid courts, such as the ones in East Timor and Sierra Leone. The book sheds light on the ECCC’s unique features, such as its majority-domestic system, its civil law-based approach to mass atrocity crime, the historic recognition of victims as case parties (chapter 8), and the Court’s potential for success in transforming Cambodian politics because of its in-country location and access to relatively robust local media and civil society organizations.
It has often been assumed that hybrid criminal tribunals like the ECCC are superior to ad hoc and permanent ones for various reasons, but they are also viewed as having their own challenges and carrying different risks. According to the authors, the ECCC has been successful in terms of both bringing top Khmer Rouge leaders to justice and meeting international judicial standards. Chapter 4 focuses on Case 001, where the former and infamous Khmer Rouge torture chief named Guek Eav alias “Duch” was convicted and sentenced. Chapter 5 focuses on “Case 002—The Centrepiece Case against Senior Leaders: ‘Cutting the Head to Fit the Hat’,” in which the authors discuss how two top Khmer Rouge defendants were tried and convicted of some offences. Chapter 6 draws attention to unsuccessful cases: namely, Cases 003 and 004, involving attempts by the international ECCC officials to bring five or six additional Khmer Rouge suspects to justice. In their view, the Cambodian ECCC counterparts and their Government stood in the way. The Court is, thus, regarded as being both inefficient and subject to political interference known to observers as the most powerful cause of judicial paralysis.
For the authors, who are institutionalists at heart, design and agency matter significantly. They give analytical attention to the ECCC’s design flaws, weak oversight mechanisms, problematic negotiations, the United Nations’ half-hearted ownership and limited authority, weak international responses, and so on. Structural imperfections are inevitable, but they can be overcome. Numerous recommendations for future policy action are offered, based on a normative commitment to justice and expectations of what effective tribunals should look like and be able to accomplish. Criminal tribunals can be more successful, for instance, if run by experienced, principled, independent, and proactive appointees.
Whether the ECCC could be more successful is a matter of debate. One thing is clear though: even proponents of criminal justice, such as human rights advocates or activists, are harshly critical of the Court and some of them even said the Court should never have been established. Their criticism is deeply rooted in the huge gap between their idealism and the type of realism they found associated with problematic trial processes and poor results. After almost ten years of work and having spent more than $200 million, the ECCC convicted only three Khmer Rouge officials (two of whom were frail and elderly). The Court is hardly a model for the world—an honest observation the authors share.
Less satisfying is the fact that the book does not really assess the ECCC’s actual effects on war and peace, political stability, national reconciliation, democratic politics, and the rule of law. Critics like myself who have observed Cambodian politics since the early 1970s and studied world politics since the mid-1980s have made the case that internationalized criminal tribunals operating in war-torn, institutionally fragile states are almost always politicized institutions that hardly help terminate war or bring about peace, promote national reconciliation, enhance democratic politics, or strengthen the rule of law. Interestingly, the authors also acknowledge that, “The ECCC’s broader effect on the Cambodian judiciary or rule of law is much less apparent. Major change in the domestic legal system in the near term is unlikely…” (274). In fact, the Court did not help end the war that lasted until 1998 and may have encouraged the government to consolidate power and keep the judicial and legal system highly politicized. Interestingly, the comparatively more anemic international pursuit of criminal justice in East Timor and Indonesia has not made them less democratic or more lawless than Cambodia.
Whether future hybrid tribunals will overcome many of the challenges countries like Cambodia will face remains to be seen. Legal institutionalists remain steadfast in the type of idealism bound by their stubborn optimism that unfortunately tends to overlook certain harsh realities in places where survival is almost always the political elites’ ultimate concern. Instead of paying some attention to arguments that are not music to their ears, they consistently fail to notice that tribunals work more effectively when they are institutionally stronger and when alleged criminals are politically weaker or less well-armed. They ignore, and often demonize, those who think that political compromise and other remedies may be more effective than retributive justice in terms of helping to end war or deter atrocity crime.
Sorpong Peou
Ryerson University, Toronto, Canada
pp. 941-943