Chapter 4 - The Creation of the Extraordinary Chambers in the Courts of Cambodia

Summary

INTRODUCTION

The transitional courts and tribunals discussed in the last chapter exhibited an expressive surplus as a consequence of the dominance of the international in terms of their composition, applicable law and procedure. This chapter introduces the Extraordinary Chambers in the Courts of Cambodia (ECCC), an internationalised court established to try senior leaders and those most responsible for crimes of mass atrocity under the government of Democratic Kampuchea (Khmer Rouge regime), which ruled Cambodia from 17 April 1975 to 6 January 1979.

The chapter explores the background to the creation of the ECCC by traversing Cambodia's history and political culture. Aft er Cambodia secured independence from France in 1953, a complex mix of national and geopolitical factors determined the course its national governments would take. The same factors compromised law and justice in Cambodia and preserved a place in Cambodian society for the Khmer Rouge long aft er the demise of the government of Democratic Kampuchea. The longevity of the Khmer Rouge also shaped the negotiations for the Agreement for the establishment of the ECCC. In the absence of any national justice and reconciliation mechanism to address the political crimes of the Khmer Rouge era, the creation of the locally situated ECCC finally offered Cambodians both the promise of some justice and scope for engagement with the past. Against this background, the chapter aims to highlight the socio-political imperatives underpinning the adjudication of crimes before the internationalised Court.

POLITICAL CULTURE AND REALPOLITIK

From their ancient origins as an animistic, subsistence society, the Khmer people of Cambodia endured many political transformations. The language of the Khmer peasant, which belongs to the family of languages known as Mon-Khmer of Southeast Asia, survived as the national tongue. Cambodia's predominantly rural majority accommodated each political transformation due to an abiding cultural acceptance of subordination in exchange for protection from governing elites so that crops could be harvested and family ties maintained. The continuity of kinship ties and connection to the land, even if subject to the exigencies of patron – client relationships, sustained a sense of Khmer identity despite the fall of the Angkorean Empire, loss of Cambodian territory to Thailand and Vietnam, and subjection to French colonial power (1864 – 1954).