Forensic Science for Cambodian Justice

¹Cambodia is universally associated with its killing fields– a horrific inheritance from the Khmer Rouge era. Whilstmass grave evidence from that era is referred to in historyand social science publications on Cambodia, it has not featuredin a legal context to date. The establishment of the ExtraordinaryChambers in the Courts of Cambodia (ECCC) creates an opportunityfor a review of this evidence 30 years after the events. Thosealleged to be accountable for Cambodia's killing fields arefinally being brought to justice. The question is whether thiswill occur with or without forensic science evidence from themass graves. This article explores the reasons for using forensicscience in the Cambodian context and outlines its potentialfor legal proceedings. Drawing on relevant literature in theforensic and legal areas, the article provides a brief outlineof the legal context created by the ECCC and examines variousprojects that have recorded evidence relating to the mass graves.Employing an analysis of semistructured, in-depth interviewswith forensic and legal experts as well as representatives fromthe ECCC and the Documentation Center of Cambodia (DC-Cam),the article explores the value of forensic science for the ECCC,including its impact on humanitarian issues in Cambodia.     

Providing justice and reconciliation: The criminal tribunals for Sierra Leone and Cambodia

The Special Court for Sierra Leone (SCSL) and the Extraordinary Chambers for Cambodia (ECC) represent a departure from the model established by the International Criminal Tribunal for the former Yygoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR). The SCSL and the ECC have often been referred to as “mixed” or “hybrid” tribunals in which there are significant domestic and international components. The tribunals include a combination of domestic and international judges, utilize domestic and international laws and are administered by a prosecutorial team composed of domestic and international lawyers. Many of these institutional changes have been brought about because of criticisms of the ICTY and the ICTR. The fundamental question of this article is whether these mixed tribunals are a more effective mechanism for providing justice and reconciliation than purely international solutions. This is an important question because both the international community and states are moving in the direction of mixed tribunals.     

Organic purity and the role of anthropology in Cambodia and Rwanda

Straus investigates the ideology of two genocidal regimes in the developing world: the Khmer Rouge in Cambodia and Hutu Power in Rwanda. Although the regimes were quite different - one Communist, the other nationalist - he argues that their ideals converged around a notion of organic purity. Both regimes pursued extraordinary violence to meet the ideal: mass destruction was a method to achieve organic purity. Straus further contends that anthropological writings provided the necessary ideational building blocks for this ideal. In promoting a violent return to a mythic past, both murderous regimes embraced the images and concepts of European archaeology and ethnography.     

Reshaping government at the local level in Cambodia: with an example of urban water supply in Battambang

The transition from communism to a market economy poses many important questions concerning the appropriate role for the state, and the institutional capacity for service delivery and development. Cambodia, after the turmoil of the Khmer Rouge and a decade of Vietnamese-guided communism, has opted for a market economy. This article considers some of the problems facing the Cambodian government following the UN-backed elections. It outlines the system of government at national and local level, focusing on Battambang province and district. It considers the current debate there about centralization and decentralization, and examines the problems of finance at national and local levels. The case study on water supplies in Battambang town contrasts the public provision through the provincial water enterprise with private sector and community/NGO provision. Whilst there is an urgent need to increase water supply capacity and improve quality, there are institutional constraints in relation to the various providers. The development of the capacity of the local government to manage service delivery will be crucial. © 1996 by John Wiley & Sons, Ltd.     

The Thief of History - Cambodia and the Special Court

After a personal account of life in Democratic Kampuchea, theauthor describes the events leading to the upcoming Khmer RougeTribunal. The emphasis is on the positions of the internationalcommunity (primarily the United Nations), the Royal Governmentof Cambodia, and the Cambodian people.     

Is the Sun Setting on Cosmopolitan Justice?

Reports on the UN criminal tribunals and the related hybrid courts raise grave concerns about their sustainability in terms of costs and their legal standards in respect of evidence. The effectiveness of the current courts is compared to the domestic prosecution of offenders from the Auschwitz concentration camp. Although the Auschwitz court failed to capture the enormity of the crime of genocide, there are nonetheless good reasons to re-visit the use of domestic courts and other remedies for such crimes today, particularly after adoption of the genocide law by nation states. Ideals of cosmopolitan justice behind the UN courts are being exported to societies that are ill-equipped to apply or afford them; and domestic legal development suffers as a consequence.     

Rape and Sexual Violence as Torture and Genocide in the Decisions of International Tribunals: Transjudicial Networks and the Development of International Criminal Law

International criminal tribunals established by the UN Security Council in the 1990s have been widely acclaimed as active participants in the modern system of dynamic criminal justice. One of their best known achievements is the prosecution of rape and sexual assaults. The International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) set an example for other tribunals to follow. By interpreting a variety of international laws, the community of international legal professionals has been able to shift the prevailing understanding of rape and sexual violence away from that of an “unfortunate byproducts of war.” Not only has the epistemic community of legal professionals been able to end impunity for these crimes, but case-law of international tribunals has become a basis for subsequent trials at quasi-international tribunals. Decisions of the tribunals have been instrumental in drafting the Statute of the International Criminal Court and can be regarded as an example of the formation of new international norms by means of judicial decisions.     

Mobilizing the Will to Prosecute: Crimes of Rape at the Yugoslav and Rwandan Tribunals

Widespread and systematic rape pervaded both the genocides in Bosnia–Herzegovina in 1992 and in Rwanda in 1994. In response to these conflicts, the Yugoslav Tribunal (ICTY) and the Rwandan Tribunal (ICTR) were created and charged with meting justice for crimes committed, including rape. Nevertheless, the two tribunals differ in their relative success in administering justice for crimes of rape. Addressing rape has been a consistent element of the ICTY prosecution strategy, which resulted in gender-sensitive investigative procedures, higher frequencies of rape indictments, and more successful prosecutions. In contrast, rape has not been a central focus of the ICTR prosecution strategy, which resulted in a sporadic approach to gender-sensitive investigative procedures, inconsistent rape indictments, and few successful prosecutions. What accounts for this disparity in rape prosecutions between the Rwandan and Yugoslav tribunals? Building off the existing literature that discusses factors such as legal instruments and resource capacity of the tribunal, this article argues that transnational advocacy helped generate the necessary political will to adopt and implement legal norms regarding crimes of sexual violence at the ICTY and the ICTR. Following the importance of transnational advocacy as agents of norm change, this paper also explores the antecedent conditions of advocacy mobilization that conditioned different levels of mobilization vis-à-vis the ICTY and the ICTR, including media attention and framing, connections and interest match with local groups, and geopolitical context.     

On structural injustice,reconciliation and alienation

ABSTRACT

In Justice and Reconciliation in World Politics, Lu argues that justice and reconciliation are analytically distinct but both needed after political catastrophes like colonialism. I argue that Lu’s compelling reconceptualization of reconciliation precisely shows the contrary by making the project of reconciliation indistinguishable from the task of realising structural justice and that we should reject the language of reconciliation in some contexts. Moreover, I contend that, in an important sense, alienation (i.e., the wrong that, according to Lu, reconciliation aims to tackle) must be generated to move towards a structurally just world. Indeed, the project of creating a structurally unjust order does require the alienation of agents from the existing background conditions of their actions.     

Prosecution of grave violations of human rights in light of challenges of national courts and the intenational criminal court: The congolese dilemma

The war in the DRC has resulted in one of the world’s worst humanitarian crisis with over 3.4 million displaced persons scattered throughout the country. An estimated 4 million people have died as a result of the war. The most pressing need to be addressed is the question of justice and accountability for these human rights atrocities in order to achieve a durable peace in the country and also in the Great Lakes region. It is particularly true in post-conflict situations where justice systems have been either partially or completely destroyed, that national courts are not capable of arriving at a uniform stance, or willing to provide justice for atrocities in the immediate future. As a result, international justice seems to be a crucial and last resort that must continue to be fortified against efforts to undermine it. However, even if the ICC achieves its full potential, it faces a number of challenges. Firstly, it is realistically not able to address all situations in which national courts are unwilling or unable to prosecute perpetrators. Secondly, there are temporal and other jurisdictional limitations on what cases the ICC can hear. Accordingly, the ICC will only have the power to try people accused of the gravest human rights violations committed after 1 July 2002; the date the Rome Statute which established the ICC took effect. As a result, only a small number of individuals responsible for the atrocities committed will be tried by this Court. Thirdly, is the establishment, of the Truth and Reconciliation Commission (TRC), one of the civilian institutions that emerged from the peace talks, meant to end impunity or to cover up gross violations of human rights committed in the DRC? It remains to be seen how it will function and interact with the courts.     

PurgePolitik: The political functions of decadence in fascism

This paper seeks to add a new facet to the definition (s) of fascism, that amorphous social, cultural, political, and aesthetic conception that has inspired no small degree of controversy over the years since the defeat of the Nazis—indeed, even since the ascension of Mussolini. I argue that the conception of “decadence” by ruling or vanguard party circles, and the expression of a need for such decadence to be purged for the health of the society, is a central tenet of fascist or crypto-fascist ideology in either its rise to power or renewed consolidation of power. In this view, “fascim”, does not necessarily mean the Nazis, and “decadence” need not signify a circumscribed artistic definition, connoting a certain circle of late-nineteenth-century painters in poets, especially in France. Though I regard period-circumscribed views of fascism and decadence as informative, I hope to offer a new framework in which the two concepts, seen in perpetual, relation to each other, break historical bonds and tell us about deeper, transhistorical political trends. In doing so, we may be better equipped to guard against the renewed emergence of crypto-fascist ideology by taking this rhetoric of a “purgation of decadence,” wherever it comes from, as a serious warning. Thus I will use historical cases outside of the standard Hitler-Mussolini axis that I view to exhibit overtly fascist tendencies, such as Khmer Rouge Cambodia and Cultural Revolution Maoist China, and I will make normative claims about current ideological currents that, while certainly not neo-Nazi, may also contain fascist or crypto-fascist tendencies. The intellectual strength of workers and peasants grows in the struggle to overturn the bourgeoisie and their acolytes, those second-rate intellectuals and lackeys of capitalism, who think they are the brains of the nation. They are not the brains of the nation. They're its shit. V.I. Lenin to Maxim Gorky, 1922 In race there is nothing material but something cosmic and directional, the felt harmony of a Destiny, the single cadence of the march of historical Being. It is incoordination of this (wholly metaphysical) beat that produces race-hatred, which is just as strong between Germans and Frenchmen as it is between Germans and Jews ... O. Spengler, The Decline of the West     

Local Evaluations of Justice through Truth Telling in Sierra Leone: Postwar Needs and Transitional Justice

This article presents findings from a qualitative case study of the Truth and Reconciliation Commission (TRC) in rural Sierra Leone. It adds to the sparse literature directly evaluating local experiences of transitional justice mechanisms. It investigates the conceptual foundations of retributive and restorative approaches to postwar justice, and describes the emerging alternative argument demanding attention be paid to economic, cultural, and social rights in such transitional situations. The article describes how justice is defined in Makeni, a town in Northern Sierra Leone, and shows that the TRC’s restorative approach was unable to generate a sense of postwar justice, and was, to many, experienced as a provocation. The conclusions support an alternative distributive conception of justice and show that local conception of rights, experiences of infringement and needs for redress, demand social, cultural, and economic considerations be taken seriously in transitional justice cases.     

Transitional Justice in the Twenty-First Century: Beyond Truth Versus Justice, Naomi Roht-Arriaza and Javier Mariezcurrena * Reconciliation in Divided Societies: Finding Common Ground, Erin Daly and Jeremy Sarkin

It took a long time to get there but, near the close of thelast millennium, humanity embraced measured accountability –instead of the extremes of impunity or vengeance – asthe appropriate fate for perpetrators of mass atrocity. Thisembrace has prompted the construction of institutions, suchas the International Criminal Court and the various ad hoc internationalor internationalized tribunals, to actualize this accountabilityimperative. But this institution-building is only the start of the justicematrix. It is not the end point. A newer second generation ofscholars and activists presses on. Agreeing on the need foraccountability does not mean that existing methods of accountabilityshould become insulated from study or critical inquiry withregard to their progress toward justice goals. Transitional Justice in the Twenty-First Century and Reconciliationin Divided Societies are bold trendsetters for this second-generationliterature. Edited by Naomi Roht-Arriaza and     

Atrocity, Punishment, and International Law, Mark A. Drumbl

This timely book examines the practice and philosophy of punishmentfor atrocity crimes, both in international and domestic courts.It is a topic to which too little attention has been devoted,whether by the courts and tribunals that impose sentences foratrocity     

The New China: Dynamism and vulnerability

Abstract

From 1998 to 2003, the Solomon Islands found itself in the grip of ‘the Tensions’, a violent civil conflict that left some 200 people dead, more than 20,000 displaced, and countless others subjected to torture, rape, fear and intimidation. In the aftermath of the conflict, two dominant approaches to post-conflict justice emerged. The first, implemented by the Regional Assistance Mission to the Solomon Islands (RAMSI), favoured a ‘rule of law’ approach according to which large numbers of militants on both sides were arrested and processed through the criminal justice system resulting, in many cases, in the imposition of lengthy period of imprisonment. The second, ‘reconciliation’ approach, favoured local, grassroots, traditional and indigenous justice processes and were routinely implements by community groups, women's organisations and the churches. This article demonstrates that in the absence of a formally planned transitional justice process, these two approaches to post-conflict justice have come into serious tension with proponents of each accusing the other of hampering their justice efforts. It examines those tensions and analyses the extent to which the Solomon Islands’ Truth and Reconciliation Commission, designed in part to provide a bridge between the rule of law and reconciliation approaches, has been able to quell this new set of tensions.     

Learning to live with irregular migration: towards a more ambitious debate on the politics of ‘the problem’

What might be gained by learning to live with ‘the problem’ of irregular migration, rather than attempting to solve it? This article engages two senses of ‘the problem’ at stake: first, the ongoing nature of displacement and migration and second, the contested justice claims that sit behind different policy perspectives. The second sense of the problem (its political dimension) is rarely addressed explicitly in public debate. Yet direct engagement with the political dimension offers the potential to unlock debate from a polarised impasse. To make this argument, I first diagnose debate on irregular migration in terms of three archetypal positions and examine their implicit justice claims. I then argue for a more ambitious debate that pushes contending justice claims to their logical extensions. Debate of this kind requires a more coherent defence of justice claims, whether they are based in communitarian, cosmopolitan, anti-capitalist or hybrid values with respect to citizenship and political community. The article concludes with an illustration of how this approach can generate momentum for less circular, more sustainable and politically achievable policy responses. The argument is made with reference to illustrative examples from Australia and Europe but holds for a variety of contexts where ‘the problem’ is framed in similar ways.     

Should I Stay or Should I Go? Leaders,Exile, and the Dilemmas of International Justice

In recent years, several oppressive leaders have been arrested and extradited to international courts. What are the consequences of this global justice cascade? I address this question by examining patterns of exile. I show that the justice cascade has a differential effect on leaders based on their culpability (whether they presided over atrocity crimes). In the past, culpable and nonculpable leaders went into exile at virtually identical rates. Today, however, culpable leaders are about six times less likely to flee abroad because exile no longer guarantees a safe retirement. These findings raise stark implications for existing research that debates whether international justice deters atrocities or prolongs conflicts. My results about exiled leaders, I explain, imply that the justice cascade should deter atrocities and prolong conflicts. Thus, instead of debating whether international justice is helpful or harmful, future scholarship should carefully consider the trade‐offs it creates.     

Civil Society and Transitional Justice in Liberia: A Practitioner's Reflection from the Field

Liberia presents an important opportunity for civil society,national government and the international community to cooperatein rebuilding a post-conflict country in a way that addressesthe essential and elemental basis for building a just and durablepeace. In other words, the country is poised to be a potential‘success story,’ one that could set new trends inhow African people negotiate a post-conflict coexistence onthe basis of shared values, popular participation and economicand social justice. The role of civil society in particularin this process of reconstruction, and specifically issues oftransitional justice, is central to ensuring that policies havebroad input amongst the Liberian population, all of whom havebeen directly impacted by the war. This article outlines thecountry's trajectory from conflict to peace, the challengesof addressing the crimes of the past, the risks to newly establisheddemocratic institutions posed by a truncated or incomplete transitionaljustice program and the role of Liberian civil society bothbroadly in a newly democratic Liberia as well as specificallyin regards to the establishment and functioning of the Truthand Reconciliation Commission.     

Defending In Defence of Politics Today

What are the threats to politics fifty years after the publication of Bernard Crick's classic In Defence of Politics? The chief danger lies in the forces of globalisation and the eclipse of the national state as the locus of political life. It is the hope of many in both Europe and the US that we might replace the basic structure of the sovereign state with a variety of postnational forms of organisation such as the UN or the EU. What are the forces behind these developments? Are we entering a world beyond politics increasingly administered by international law courts and tribunals no longer responsible to their national electorates? The possibility cannot be ruled out, but such a world, I suggest, would no longer be a political world.     

Reflections on Moral Accountability

As patron of the Centre for the Study of Violence and Reconciliation(CSVR), I am both proud and excited that this organization hastaken the lead in initiating an international publication ontransitional justice in partnership with the Human Rights Centerat the University of California, Berkeley. By creating a spacefor dialogue and the sharing of knowledge and research, theInternational Journal of Transitional Justice will no doubtcontribute to the growth of the field of transitional justiceand to its ultimate