Symposium: Accountability for core international crimes in the ASEAN region: diversity in recent developments
Justice Beyond the Courtroom?
Residual Functions at the Extraordinary Chambers of the Courts of Cambodia
A collaboration between CIL Dialogues and AsianSIL Voices
by Andre Kwok
Published on 5 April 2023
The legacy of the Extraordinary Chambers of the Courts of Cambodia (ECCC) is a hotly debated topic. Many commentators applaud the ECCC’s historical achievement of convicting Khieu Samphan, the first head state for the crime of genocide in a region witnessing increasing authoritarianism. At the same time, many criticise the ECCC’s high cost, allegations of political interference, and procedural disagreements. Amidst debates over the ECCC’s legacy, there has been limited academic and media coverage of the ECCC’s post-prosecution judicial functions.
In January 2023, the ECCC commenced its residual functions under an agreement between the United Nations and the Cambodian Government. This agreement explicitly mandates proactive dissemination of information, declassification of judicial records, and monitoring of reparations, focusing on engagement with civil society organisations and survivor-victim communities. This broad mandate departs from the considerably narrower residual mandate of UN-backed tribunals for the Former Yugoslavia and Rwanda, mainly limited to reactive efforts of archival management and case monitoring when requested by members of the public.
Before examining the ECCC’s residual functions, it is crucial to understand the court’s distinct methods of victim participation as Asia’s first and only post-war international criminal justice project.
Over a quarter million attended public ECCC hearings, far surpassing any other international judicial institution in the Global North, including the International Criminal Court (ICC). The ECCC commissioned free large-scale bus services for rural and urban populations to attend the trials, empowering tens of thousands of Cambodians to experience the trials first-hand and affirming the oral memories from education and intergenerational storytelling. The focus on promoting feelings of ownership through victim participation is further evident in the court’s legal framework allowing victims to apply to form a consolidated group as direct parties to ECCC litigation to seek collective and moral reparations. Known as civil parties, ECCC is the only tribunal for mass atrocity crimes with such participation modality, with over 3800 civil parties. These survivors are highly esteemed in Cambodian society and have led locally driven discourses in their respective communities.
Bringing the spotlight to the residual functions, the ECCC did not retreat from the justice process after the final appeal judgement. Instead, the ECCC entered the reconciliation ecosystem alongside civil society and survivor-victim communities. The design of the ECCC’s unique residual functions shows the court’s recognition that criminal prosecutions and fact-finding investigations are not the final product of the reconciliation journey. Rather, it is a single part of the sequencing of interdependent transitional justice tools that bring about holistic responses to mass atrocities.
The ECCC’s outreach initiatives with survivor-victim is a significant mode of the residual functions. A high-level victims workshop underscored the continued importance of survivor-victim voices in the residual functions’ thematic and practical design, including facilitating access to justice, the construction of memorials, capacity building and intergenerational storytelling. Still primarily at the conceptional level, with a few small-scale projects already underway, the residual functions aim to facilitate dialogues, co-design workshops, consultative meetings, and self-help groups. The ECCC’s outreach will engage ethnic and religious minorities, aging victims, youth, and survivors of sexual and gender-based violence, together with mental health and socio-economic effects in the broader reconciliation journey.
An outreach mechanism worth highlighting in the continued use of focal persons in residual functions. In a monthly victims-survivor-centred civil society organisations that deliberates on the tangible objectives of high-level workshop, the ECCC is exploring a piloting program where focal persons in various regions of Cambodia engage with civil parties. This networked approach facilitates discussion on the significance of the final judgement, informing of legal rights, provision of certificates acknowledging participation in the trials and forms a feedback loop to notify Civil Parties about upcoming ECCC’s activities under the residual mandate.
The ECCC seeks to promote institutional reform to dignify survivor-victims. To promote transparency and public access of the judicial legacy, the Supreme Court Chamber is de-classifying hundreds of thousands of court documents, photographs and videos and materials Khmer Rouge period and ECCC trials. Similarly, the reorganisation of the archives of judicial and non-judicial archives together with outward-facing programs to schools and the public encourage interests in the archival feat of the ECCC, further promoting transparency of the ECCC legacy. Both the judicial and archival efforts represent the goal of reducing barriers to information in engaging with the fullest picture of the Cambodian reconciliation story.
The importance of understanding the complexities of recognition and victimhood in the context of international criminal justice is furthered by Adjunct Professor Sperfeldt stating, “more than half of the people who have not lived under the Khmer Rouge regard themselves as a victim of the Khmer Rouge. We see this very strong inter-generational dimension in Cambodia in terms of perceptions of victimization”. Likewise, empirical studies found a strong consensus of survivor-victim and communities born after the Khmer Rouge period found feelings of connection to the accountability process and transmitting memories of the mass atrocities to future generations is just as meaningful if not more than judicial process.
Corresponding with these findings, increased dissemination of information with educational institutions is another feature of the residual functions. The ECCC sustains its active role in directly hosting educational tours of significant sites relating to the Khmer Rouge, including Tuol Sleng Genocide Museum informing students about the mass atrocities crimes and the court’s role in reconciliation. The ECCC hosts multiple weekly visits with approximately two hundred students per visit and promotes accessibility by fully-funding lunch and bus transportation. In the residual functions, promoting educational presence will further the existing impact of education in the textbook publications and destigmatising conversations about the Khmer Rouge Regime in the public domain.
The ECCC’s entrepreneurial posture is underlined by its physical location in Cambodia, where the atrocities occurred. This physical proximity with Cambodia is significant because researchers repeatedly highlight the continuing intergenerational, psychological and socio-economic effects that shape the national consciousness of post-genocide countries today. Unlike being located at the Hague like other international criminal tribunals, the ECCC yields stronger prospects for closer and more meaningful programs with survivor-victims and the wider Cambodian population born after the Khmer Rouge regime.
The current integration of modern technologies to boosts the court’s public awareness of Cambodia’s reconciliation story. Recognising Cambodia’s demographic makeup of having the youngest population in Southeast Asia, with a high digital penetration rate, the ECCC is overhauling its multimedia presence which includes an immersive virtual reality simulation of the courtroom to enable current and future generations to have a tactile experience of the judicial legacy. In addition, the court is designing a new trilingual glossary of ECCC-specific legal terminology, launching social media campaigns and establishing a modern resource centre with learning spaces and free access to comprehensive judicial and non-judicial archives.
With these dynamic residual functions on the horizon, the ECCC must grapple with some significant considerations. The first is overseeing coordination mechanisms between Cambodian and international personnel, and stakeholders in designing and practically implementing residual activities that account for the sensitivities of survivor-victim trauma. The second is managing the different and potentially contradictory interests held by various individuals and civil society organisations at the operational and political levels. Last is the critical issue of gathering and sustaining political will from involved parties in realising initiatives that can be perceived to be less tangible than the conventional key performance indicator of convictions in the international criminal justice project.
The ECCC’s residual functions also offer Cambodia an opportunity to be a model for transitional justice and institution-building in Cambodia and the Asia-Pacific region. Reflecting on judicial process and the emergence of residual functions, Cambodia’s can bolster the ECCC’s legacy by sharing lessons on rebuilding a post-genocide society and the role of survivor-victims and civil society in broader institutional reform. With armed conflict in Myanmar, developments in Indonesia’s Constitution Court and ASEAN’s growing involvement in regional conflict, the ECCC has the prospect of being a forum for reflection and discussion for better-informed reconciliation and international law endeavours.
Ultimately, the residual functions signify a divergence from the conventional minimalistic approach in international criminal law to a broader approach of court-led holistic transitional justice activities. Malaysian lawyer, Dato Shyamala Alagendra stressed the importance of the residual functions for Cambodian society, despite it being the final chapter of the ECCC. The ECCC is a valuable case-study that raises deeper questions on the role of the court, as a historically adjudicating institution, in the bigger picture of reconciliation.
Despite the ECCC’s imperfections, the court’s residual functions warrant further attention as such practices are unseen in other international tribunals. Whilst the exact realisation of the functions is yet to be seen, the precise directive for active dissemination programs that centre ongoing engagement with survivor-victim communities, alongside strengthening buy-in from civil society organisations and government bodies, is noteworthy. As the ECCC performs its residual functions, it can provide important lessons on pursuits of justice beyond solely judicial means within a larger reimagination on the role of the court in societies reconciling with mass atrocity and gross human rights violations.
The views and opinions expressed in this article are those of the author and do not reflect the views or positions of any institutions they represent.
Andre Kwok is a legal intern at the United Nations Assistance to the Khmer Rouge Trials at the Extraordinary Chambers of the Courts of Cambodia. He is final year Asian Studies and Laws (Honours) student at the Australian National University. Andre undertook a semester exchange at the National University of Singapore’s Faculty of Law as a Westpac Asian Exchange Scholar.
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