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An educational legacy: Exploring the links between education and resilience at the ECCC

Published online by Cambridge University Press:  04 September 2020

Caitlin McCaffrie
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Abstract

About half a million Cambodians have attended hearings or outreach activities about the Extraordinary Chambers in the Courts of Cambodia (ECCC) since public hearings began in 2009. Countless more have watched the trials unfold on television, and increasingly on social media. To date, the majority of conversations around the legacy of the ECCC have come from international scholars focusing on the legal impact the trials may have. This article instead presents the often-missing views of Cambodian youth about the Tribunal. It also, more broadly, explores the ECCC’s impact on education and young people’s understanding of history. Based on research carried out with university students, this article argues that the contribution of the ECCC to education has often been overlooked and is in fact one of its most significant legacies. In Cambodia, government and non-government organizations, as well as academic institutions, have the unique opportunity to incorporate testimony, footage, and documents from the ECCC into their programmes, greatly adding to the existing repertoire of Khmer-language resources dealing with the past. The result is a more well-rounded programme of transitional justice and reconciliation than the court alone could have provided, and certainly a higher level of external resilience than would have occurred had the court been located outside of Cambodia.

Keywords

Extraordinary Chambers in the Courts of Cambodiahistory educationhybrid tribunalresiliencetransitional justice
Type
ORIGINAL ARTICLE
Information
Leiden Journal of International Law , Volume 33 , Issue 4 , December 2020 , pp. 975 - 991
Copyright
© Foundation of the Leiden Journal of International Law 2020

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Footnotes

*

Former Co-Director of Cambodia Programs for the WSD Handa Center for Human Rights and Transitional Justice.

References

1 Cambodian names are traditionally written with the surname first. In this article that order is preserved, however in footnotes they are written in reverse order to be consistent with Western names.

2 Prosecutor v. Khieu and Nuon, Transcript of Trial Proceedings on the Substance of Case 002/02, Case No. 002/19-09-2007-ECCC/TC, 2 June 2015 (emphasis added).

3 In the immediate aftermath of the conflict, in 1979 a ‘People’s Revolutionary Tribunal’ was established and sentenced two men – Pol Pot and Ieng Sary – to death in absentia, however this has been dismissed as a show trial. S. Ly, Reconciliation Process in Cambodia: 1979-2007, Before the Khmer Rouge Tribunal (2017), at 53–9; J. Ciorciari and A. Heindel (eds.), On Trial: The Khmer Rouge Accountability Process (2009), at 40.

4 See E. Wiebelhaus-Brahm, The Concept of Resilience and the Evaluation of Hybrid Courts, in this issue, doi:10.1017/S0922156520000400.

5 V. Dittrich, ‘The Legacy of the ECCC’, in S. Meisenberg and I. Stegmiller (eds.), The Extraordinary Chambers in the Courts of Cambodia (2016); UNOHCHR, Rule-of-law tools for post-conflict states: Maximizing the legacy of hybrid courts (2008), UN Doc. HR/PUB/08/2; J. Oeung et al., Implementation of the ECCC Legacies for domestic legal and judicial reform (2013), available at www.kas.de/c/document_library/get_file?uuid=aec3ff67-c25c-f9ce-ad9f-5bf783081df4&groupId=252038.

6 Dittrich, ibid.; C. Sperfeldt, ‘Collective Reparations at the Extraordinary Chambers in the Courts of Cambodia’, (2012) 12 IntlCLR 457.

7 E. Tabeau and T. Kheam, ‘Demographic Expert Report: Khmer Rouge Victims in Cambodia, April 1975–January 1979. A Critical Assessment of Major Estimates’, (30 September 2010), D140/1/1, at 19; 2003 Agreement Between the United Nations and the Royal Government of Cambodia Concerning the Prosecution Under Cambodian Law of Crimes Committed during the Period of Democratic Kampuchea, 2329 UNTS 41723.

8 Prosecutor v. Kaing, Supreme Court Chamber, Case 001 Appeal Judgment, Case No. 001/19-07-2007-ECCC/SC, 3 February 2012. Prosecutor v. Khieu and Nuon, Supreme Court Chamber Case 002/01 Appeal Judgment, Case No. 002/19-09-2007-ECCC-SC, 23 November 2016. Prosecutor v. Khieu and Nuon, Trial Chamber Case 002/02 Judgment, Case No. 002/19-09-2007/ECCC/TC, 16 November 2018. For the specific charges being tried in Case 002/02 see, Prosecutor vs. Khieu and Nuon, Decision on Additional Severance of Case 002 and Scope of Case 002/02, Case No. 002/19-09-2007-ECCC/TC, T.Ch., 4 April 2014.

9 Prosecutor vs. Khieu and Nuon, Urgent Request Concerning the Impact of Appeal Proceedings on Nuon Chea’s Death Prior to the Appeal Judgment, Case No. 002/19-09-2007-ECCC/SC, 6 August 2019.

10 See, for example, K. Naren, ‘Hun Sen Warns of Civil War If ECCC Goes Beyond “Limit”’, Cambodia Daily, 27 February 2015.

11 ECCC, Completion Plan. Revision 25, 30 June 2020, available at www.eccc.gov.kh/sites/default/files/Completion%20Plan%20rev%2025.final_.pdf.

12 Open Society Justice Initiative Press Release: ‘Cambodian Prime Minister Must Halt Interference in Khmer Rouge Tribunal’, 27 October 2010, available at www.opensocietyfoundations.org/press-releases/cambodian-prime-minister-must-halt-interference-khmer-rouge-tribunal; Human Rights Watch, ‘Cambodia: Stop Blocking Justice for Khmer Rouge Crimes’, 22 March 2015, available at www.hrw.org/news/2015/03/22/cambodia-stop-blocking-justice-khmer-rouge-crimes.

13 An example of legal critique can be found in D. Cohen, M. Hyde and P. Van Tuyl, A Well Reasoned Opinion? Critical Analysis of the First Case Against the Alleged Senior Leaders of the Khmer Rouge (Case 002/01) (2015), and broader critique of the cost and duration of the tribunal is exemplified in the media in S. Mydans, ‘11 years, $300 million and 3 convictions. Was the Khmer Rouge Tribunal worth it?’, New York Times, 10 April 2017.

14 T. Bialek, ‘Legacy at the Extraordinary Chambers in the Courts of Cambodia: Research Overview’, Documentation Center of Cambodia, 2013, available at d.dccam.org/Tribunal/Analysis/pdf/Legacy_FINAL.pdf.

15 Pham et al., ‘So We Will Never Forget: A Population Based Survey on Attitudes about Social Reconstruction and the Extraordinary Chambers in the Courts of Cambodia’ (2009), Human Rights Center Report, at 5.

16 Dittrich, supra note 5; Open Society Justice Initiative, ‘Recent Developments at the Extraordinary Chambers in the Courts of Cambodia’, (2013) Briefing Paper, available at www.justiceinitiative.org/uploads/7e67a3bd-4ff7-44c8-9ebb-1643081be4af/eccc-report-20130322_0.pdf.

17 R. Hughes, ‘Justice Processes and Discourses of Post-Conflict Reconciliation in Southeast Asia: The Experiences of Cambodia and Timor-Leste’, in A. McGregor, L. Law and F. Miller (eds.), Routledge Handbook of Southeast Asian Development (2018), at 102.

18 S. Mydans, ‘Cambodian Leader Resists Punishing Top Khmer Rouge’, New York Times, 29 December 1998.

19 M. Gellman, ‘Teaching Silence in the Schoolroom: Whither National History in Sierra Leone and El Salvador?’, (2015) 36 TWQ 147, at 150.

20 E. Cole and J. Barsalou, ‘Unite or Divide? The Challenges of Teaching History in Societies Emerging from Violent Conflict’, United States Institute of Peace Special Report 163, 2009, available at www.usip.org/sites/default/files/sr163-Unite-or-Divide.PDF, at 5.

21 P. Longstaff et al., ‘Building resilient communities: A preliminary framework for assessment’, (2010) VI Homeland Security Affairs 1, at 7; A. Bujones et al., A Framework for Resilience in Fragile and Conflict-Affected Situations’ (2013).

22 A. Freedman et al., ‘Teaching History after Identity-Based Conflicts: The Rwanda Experience’, (2008) 52 Comparative Education Review 663.

23 K. Bush and D. Saltarelli (eds.), ‘The Two Faces of Education in Ethnic Conflict: Towards a Peacebuilding Education for Children’, UNICEF Innocenti Research Centre Study, at 20, 2000, available at www.unicef-irc.org/publications/pdf/insight4.pdf.

24 Ibid., at 19.

25 The WSD Handa Center for Human Rights and International Justice, previously known as the University of California, Berkeley’s War Crimes Studies Center, was established in 2000 by Professor David Cohen. Through research and international programmes, the Handa Center supports and helps improve the work of domestic courts, international tribunals and human rights commissions around the world. The research cited in this article also received financial support from the British Embassy in Phnom Penh, with additional support from the East-West Center in Hawai’i.

26 C. McCaffrie et al., ‘“So We Can Know What Happened”: The Educational Potential of the Extraordinary Chambers in the Courts of Cambodia’, Stanford Center for Human Rights and International Justice, 24 January 2018, available at humanrights.stanford.edu/publications/so-we-can-know-what-happened-educational-potential-eccc.

27 All focus group discussions were run in Khmer by Cambodian Handa Center consultants. The discussions were transcribed live with the help of simultaneous translation into English. Transcripts were later checked against the audio recordings of the discussions for accuracy.

28 54% were law students, 23% studied media, 12% studied English, and 11% business.

29 In total, seven members of civil society working in education were interviewed, five representatives of government and four educators and academics.

30 Focus group discussants were asked to freely write down their own views on legacy; they were not provided with multiple choice options. Discussants were then asked to rank the legacies they had written down from most to least important. After the discussions, the researchers grouped responses by key words and theme.

31 The next most commonly listed legacy responses were: ‘to provide justice for victims’ (39 times or 14%), ‘to address suffering of the past’ (28 times or 10%), ‘to prevent repetition of crimes’ (22 times or 8%) and ‘prosecute and/or punish Khmer Rouge leaders’ (19 times or 7%). Students could list as many legacies as they chose and were not provided with pre-arranged options.

32 K. Chhim, ‘Pacifying vindictiveness by not being vindictive’: Do memory initiatives in Cambodia have a role in addressing questions of impunity? (2012), at vii.

33 McCaffrie et al., supra note 26, at 20.

34 Ibid., at 16.

35 Ibid., at 20.

36 Ibid., at 31.

37 For example, an English to Khmer legal glossary and glossary of terms related to Democratic Kampuchea was created by the Asian International Justice Initiative and is available at krtmonitor.org/2013/10/24/aiji-glossary-english-to-khmer/.

38 See D. Ayres, Anatomy of a Crisis: Education, Development and the State in Cambodia 1953-1998 (1993), at 126; H. Locard, Draft Report on Higher Education in Cambodia, Phnom Penh – Canberra (unpublished UNESCO paper 1995).

39 B. Münyas, ‘Genocide in the Minds of Cambodian Youth: Transmitting (Hi)stories of Genocide to Second and Third Generations in Cambodia’, (2008) 10 Journal of Genocide Research 421.

40 The Legal Documentation Center already houses the full public case file from Case 001 in all three official languages of the ECCC. The Civil Party Lead Co-Lawyers have requested the Legal Documentation Center be recognized by the ECCC as a reparations project in Case 002/02, see Prosecutor v. Khieu and Nuon, Civil Party Lead Co-Lawyers’ Final Claim for Reparation in Case 002/02, Case No. 002/19-09-2007-ECCC/TC, T.Ch., 30 May 2017.

The Center was recognized as a reparations project with the passing of the Trial Judgment in Case 002/02 on 16 November 2018.

41 U. Lühe, Atrocity’s Archives: The Role of Archives in Transitional Justice (2018).

42 Prosecutor v. Khieu and Nuon, Co-Prosecutors’ Submission regarding Office of the Investigation Judges combined S-21 Prisoner List, Case No. 002/19-09-2007-ECCC/TC, T.Ch., 19 May 2009.

43 The updated list is not yet publicly available.

44 Oral arguments over the inclusion of the logbook sent by Professor Heynowski are summarized in KRT, ‘Case 002/02. Trial Monitor. Hearings on Evidence week 73’, 5–9 December 2016, available at krtmonitor.org/2016/12/16/krt-monitor-case-00202-issue-73-7-11-november-2016/, at 6–7; KRT, ‘Case 002/02. Trial Monitor. Hearings on Evidence week 76’, 9–11 January 2017, available at krtmonitor.org/2017/02/09/krt-monitor-case-00202-issue-79-9-11-january-2017/, at 5.

45 L. Douglas, The Memory of Judgment: Making Law and History in the Trials of the Holocaust (2001), at 2.

46 E. Palmer and S. Williams, ‘A “shift in attitude”? Institutional change and sexual and gender-based crimes at the Extraordinary Chambers in the Courts of Cambodia’, (2017) 19 International Feminist Journal of Politics 22.

47 Prosecutor v. Khieu and Nuon, Judgment, Case No. 002/19-09-2007-ECCC/TC, T.Ch., 16 November 2018.

48 Ibid., at 176–250; D. Chandler, Voices from S-21: Terror and History in Pol Pot’s Secret Prison (2000).

49 R. Gidley, ‘The Political Construction of Narrative and Collective Memory in Cambodia’, (2017) 10 Situations 99.

50 K. Dy, A History of Democratic Kampuchea (1975-1979) (2007).

51 Inter-Agency Network for Education in Emergencies, ‘Education and Fragility in Cambodia’ (2011), at 46.

52 Münyas, supra note 39, at 413.

53 J. Dosch, ‘The Role of Civil Society in Cambodia’s Peace-building Process’, (2012) 52 Asian Survey 1067; M. Bellino et al., ‘Working through Difficult Pasts: Toward Thick Democracy and Transitional Justice in Education’, (2017) 53 Comparative Education 313.

54 Ibid.

55 T. Clayton, ‘Reorientations in Moral Education in Cambodia since 1975’, (2005) 34 Journal of Moral Education 505, at 506.

56 For detailed summaries of the history of education in Cambodia see Ayres, supra note 38; Inter-Agency Network for Education in Emergencies, supra note 51, at 21.

57 Eighty-eight of the 102 (86.2%) expressed a desire to learn more history at school, Münyas, supra note 39, at 437.

58 Documentation Center of Cambodia, ‘Genocide Education in Cambodia: Khmer Rouge History Education’ (2016), available at dccam.org/posters/genocide-education-january-13-2016.

59 P. Chea and C. Dearing, Teacher’s Guidebook: The Teaching of A History of Democratic Kampuchea (1975-1979) (2009).

60 Prosecutor v. Khieu and Nuon, Civil Party Lead Co-Lawyers Annex 2: Overview of Civil Party Reparation Requests in Case 002/01, Case No. 002/19-09-2007/ECCC/TC, T.Ch., 4 April 2014.

61 McCaffrie et al., supra note 26, at 24.

62 Ibid., at 21.

63 S. Galto, Education as a Form of Reconciliation or Recognition: Teachers’ Perspectives on Genocide Education in Cambodia (2012), at 86.

64 M. Gellman, ‘Teaching Silence in the Schoolroom: Whither National History in Sierra Leone and El Salvador?’, (2015) 36 TWQ 147, at 150; Longstaff et al., supra note 21.

65 Bellino et al., supra note 53.

66 McCaffrie et al., supra note 26, at 16.

67 N. Pentelovitch, ‘Seeing Justice Done: The Importance of Prioritizing Outreach Efforts at International Criminal Tribunals’, (2009) 39 Georgetown JIntlL 445, at 469.

68 Visits to the courtroom are often organized in collaboration with a visit to the Tuol Sleng Genocide Museum or Choeung Ek Genocidal Center in Phnom Penh. The Victim’s Support Section of the ECCC also organizes some outreach activities.

69 McCaffrie et al., supra note 26, at 30.

70 Münyas, supra note 39, at 421.

71 McCaffrie et al., supra note 26, at 30.

72 C. Sperfeldt, ‘Broadcasting Justice: Media Outreach at the Khmer Rouge Trials’, (2015) 115 Asia Pacific Issues 1, at 8.

73 Ibid., at 5.

74 T. Williams et al., Justice and Reconciliation for the Victims of the Khmer Rouge? Victim Participation in Cambodia’s transitional justice process (2018), at 7.

75 McCaffrie, supra note 26, at 29.

76 ‘Raising Awareness of Cham and Vietnamese Experiences During the Khmer Rouge Period’, Kdei Karuna, available at www.kdei-karuna.org/.

77 Civil Party Lead Co-Lawyers, supra note 60.

78 Reparations are provided for in Internal Rule 23: 2015 Extraordinary Chambers in the Courts of Cambodia. Internal Rules (Rev. 9), at rule 23. For more information on reparations at the ECCC see C. Sperfeldt, ‘Collective Reparations at the Extraordinary Chambers in the Courts of Cambodia’, (2012) 12 IntlCLR 457.

79 Prosecutor v. Khieu and Nuon, Civil Party Lead Co-Lawyers’ Supplemental Submission on Funding Issues Related to Reparation Projects in Case 002/02 and Request for Guidance, Case No. 002/19-09-2007-ECCC/TC, T.Ch., 30 November 2017.

80 A number of documentation centres exist in Phnom Penh, including DC-Cam, the Legal Documentation Center related to the ECCC and Bophana Center. DC-Cam is also planning to open a new resource centre in Phnom Penh named the Sleuk Rith Institute. The ECCC streams hearings online and promotes them on its social media accounts.

81 For more on the role of civil society organizations in conducting court-related outreach for the International Criminal Court see E. Evenson, ‘Making Justice Count: Lessons from the ICC’s Work in Cote d’Ivoire’, Human Rights Watch, 4 August 2015, available at www.hrw.org/report/2015/08/04/making-justice-count/lessons-iccs-work-cote-divoire.

82 Civil Party Lead Co-Lawyers, supra note 60.

83 R. Wilson, Writing History in International Criminal Trials (2011), 1.

84 E. Cole, ‘Transitional Justice and the Reform of History Education’, (2007) 1 IJTJ 115.

85 J. Keilbach, ‘The Eichmann Trial on East German Television: On (Not) Reporting about a Transnational Media Event’, (2014) 3 Journal of European Television History and Culture 17; D. Schwartz, ‘“Who Will Tell Them After We’re Gone?”: Reflections on Teaching the Holocaust’, (1990) 23 The History Teacher 98. All 27 episodes of Duch on Trial and 53 episodes of Facing Justice are available on the Handa Center’s website at www.krtmonitor.org.

86 Douglas, supra note 45, at 6: Douglas emphasized the role of the Eichmann trial in producing a historical record and encouraging survivors to speak out, increasing awareness of the atrocities of the Holocaust.

87 H. Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil (1963), at 233.

88 These arguments are well summarized in Wilson, supra note 83, at 6.

89 Douglas, supra note 45.

90 Wilson, supra note 83, at 19.

91 Arendt, supra note 87, at 6.

92 S. Scully, ‘Judging the Successes and Failures of the Extraordinary Chambers in the Courts of Cambodia’, (2011) 13 Asian-Pacific Law and Policy Journal 340.

93 Ibid., at 338.

94 Douglas, supra note 45, at 4.

95 C. Reiger, ‘Where to from Here for International Tribunals? Considering Legacy and Residual Issues’, ICTJ, 25 April 2011, at 5 available at www.ictj.org/publication/where-here-international-tribunals.

96 E. Handley, ‘Students see Khmer Rouge tribunal as educational tool’, The Phnom Penh Post, 26 January 2018, available at www.phnompenhpost.com/national-kr-tribunal/students-see-khmer-rouge-tribunal-educational-tool-study. Issues of historical narrative were regularly raised at trial, particularly during Case 002/02. In the Nuon Chea 550-page Closing Brief his lawyers devote significant space to telling Nuon Chea’s historical narrative, which they refer to as: ‘The Crocodile: What Really Happened Before, During and After the DK Period’; see Prosecutor v. Khieu and Nuon, Nuon Chea’s Closing Brief in Case 002/02’, Case No. 002/19-09-2007-ECCC/TC, 2 May 2017, at 42.

97 Ibid.