Chapter 5
Justice, healing and reconciliation
in Cambodia
The Extraordinary Chambers in the Courts of Cambodia (ECCC) are the first internationalized tribunal that gives victims an active role in the courts’ trials. It is hoped that this active participation of victims increases the ownership and interest of Cambodians in the trial and thus plays a key role in ensuring its lasting impact on society. In contrast to the considerable attention the ECCC have received with regard to the judicial aspects of victims’ participation, relatively little focus has been directed toward its psychological impact, and the needs of survivors beyond retributive justice. This chapter seeks to partially address this imbalance by presenting survivors’ experiences and by offering insights to improve and extend the scope of peacebuilding practice in Cambodia. Here, the dominant voice, at least as reflected in the statements of Victims’ Organizations and some survey results, suggests victims’ dissatisfaction with a transitional justice model that primarily focuses on prosecutorial mechanisms. We therefore argue that the Cambodian transitional justice approach should consider the implementation of both retributive and restorative measures, because each can provide important benefits to survivors.
Although there is no “one size fits all” approach to peacebuilding (Clancy and Hamber 2008), academics and practitioners widely agree that reconstruction of post-conflict societies is best approached from a wide range of angles, addressing legal, psychological, economic and socio-cultural factors (Schnabel et al. 2007). For the reasons explored in this chapter, we recommend community-based truth-telling and memorialization initiatives and reparations as essential additional functions for a successful Cambodian peacebuilding process.
This chapter begins with a short overview of the Cambodian genocide and the mandate and functioning of the ECCC as a hybrid court. The first section will then review past transitional justice activities by and in the context of the ECCC and will explore the psychological effects of victim participation. This section further outlines survivors’ reparation requests and how the courts’ decisions on this issue impacted on survivors. Thus, this section attempts to advance the knowledge and understanding of how to ameliorate the pain evoked by some of the courts’ interventions. The second section then identifies lessons learned and provides an alternative framework for transitional justice measures in Cambodia. In doing so, this section highlights the potential but also complexities of trauma theory and practice for transitional justice and identifies the “psychosocial approach” as an alternative framework.
Acknowledging that there have been important advances in the jurisprudence regarding victims’ participation, the chapter concludes by recommending more attention to victims’ psychological needs and highlights memorialization, truth-telling, and reparation measures as essential elements in Cambodia's transitional justice process.
The findings and recommendations of this chapter are based on survey results and the authors’ experiences in working with survivors of the Khmer Rouge (KR) regime and in implementing and assessing outreach and psychosocial interventions in the context of the ECCC.
History and context
Between April 1975 and January 1979, Cambodians suffered enormous human rights abuses under the rule of the Khmer Rouge. During this period, it is estimated that between 1.4 million and 2.2 million of the nation's population perished from starvation, enforced labor, disease, and executions (Sharp 2005). Infuriated by US carpet bombings of Cambodia during the Vietnam War that resulted in somewhere between 150,000 and 500,000 civilian deaths, and influenced by communist ideology, the Khmer Rouge leaders planned a revolution to create an agrarian communist state. Under the Khmer Rouge, people were forced out of urban centers, schools, and cultural institutions; government buildings and pagodas were destroyed or turned into prisons. Ritual life and religious practices were abandoned, families separated, education prohibited, and ethnic minorities and other perceived “enemies” executed. This “genocide” and the following civil war were not without international interference. Cold war politics helped perpetuate the cycle of destruction. Whereas the US bombings of Cambodia and CIA activities during the Vietnam War arguably helped to establish the Khmer Rouge, the Chinese supported the Khmer Rouge throughout their regime with economic aid, technical training and military supplies.
On January 6, 1979, after three years, eight months and 20 days of Khmer Rouge rule, the Vietnamese entered Cambodia and drove the Khmer Rouge from power. A Vietnam-backed regime then ruled from 1979 to 1991, while the Khmer Rouge continued to control large parts of the country. After a two-year UN peacekeeping operation, free elections in 1993 resulted in the “Royal Cambodian Government” composed of a coalition between the royal FUNCINPEC Party under Prince Norodom Ranariddh's leadership and the Cambodian People's Party under Hun Sen. In 1997, Hun Sen overthrew Prime Minister Norodom Ranariddh in a bloody coup. After winning new elections in 1998, Hun Sen and the Cambodian People's Party have been in power ever since. Despite heavy criticism of Cambodia's human rights record and little progress in strengthening the rule of law, the international donor community pledged a record of approximately $1 billion per year in assistance to Cambodia from 2010 to 2012 – about half the country's annual budget (Cambodia Aid Effectiveness Report 2010). However, what is disturbing is that the international aid community and the government are largely turning a blind eye to the mental health consequences of the Khmer Rouge genocide. Despite the high level of psychological trauma, only minimal mental health services and expertise are present in Cambodia today.1
The ECCC: unprecedented mechanisms for victims’ participation
More than 30 years after the fall of the Khmer Rouge and the Vietnamese-backed genocide tribunal in Cambodia in 1979, the Extraordinary Chambers in the Courts of Cambodia (ECCC) are the first serious effort to investigate and try “senior leaders of Democratic Kampuchea and those who were most responsible for crimes committed between 17 April 1975 and 6 January 1979” (ICTJ 26 March 2011).
The ECCC are unique for two reasons. First, the ECCC's national-international nature allows for an unprecedented level of cooperation and coordination between the UN and the Cambodian government. Being a hybrid court, it “forms part of the Cambodian domestic legal system, but also incorporates international components” (ICTJ 26 March 2011). Cambodian as well as international criminal law is applied and ECCC staff on all levels are recruited from international as well as national experts. Unlike in other hybrid tribunals, such as in East Timor or Sierra Leone, the ECCC have a majority of national judges and the same number of international and national co-investigating judges and prosecutors.
Second, the ECCC are the first hybrid tribunal to implement the inquisitorial civil law system based on the French tradition permitting victims to participate in the criminal proceedings as “Civil Parties,” a mechanism that allows for a level of victim participation unprecedented in other hybrid tribunals. In addition, survivors can still function as witnesses or submit complaints as in any other international tribunal. This new Civil Party mechanism gives survivors additional procedural rights allowing for more active involvement in the legal proceedings and the right to seek collective and moral reparations, innovations that have been widely praised as a historic step forward to improve victims’ rights.2
Following the indictment of five persons in 2007, the hearings against the first accused, “Comrade Duch” (see Ryono's Chapter 6), the former secretary of the S-21 prison, ended in November 2009 (Case 001). On 26 July 2010, the ECCC sentenced Duch to 35 years in prison. However, his sentence was reduced to 19 years since he had been in detention for the past 16 years. In Case 001 of the ECCC, the Trial Chamber accepted 66 Khmer Rouge survivors as Civil Parties, but denied Civil Party status at sentencing to a further 24 applicants on the grounds that they had not demonstrated a link to S-21.
The trials against the other four accused – Nuon Chea, Ieng Sary, Khieu Samphan and Ieng Thirith – commenced with the start of the initial hearing on 27 June 2011 (Case 002). Up to now, approximately 3,850 Civil Party applicants have been recognized. The defendants are indicted on charges of crimes against humanity; grave breaches of the Geneva Conventions of 1949, genocide; and homicide, torture, and religious persecution within the meaning of the Cambodian Penal Code from 1956.
Transitional justice activities by and in the context of the ECCC
Victims’ participation in the ECCC and its psychological impact
The ECCC Civil Party mechanism is an unprecedented effort to make the tribunal more accessible to the victims of mass atrocities under the Khmer Rouge. However, this new scheme has also provoked debate about whether and to what extent the active participation of victims can contribute to individual healing. Is the Civil Party mechanism better suited to meet victims’ needs and provide psychological relief? Or can the experience of active participation even aggravate emotional suffering? Answers to these questions are central in assessing the value of this innovative participatory mechanism for Cambodia, and for other international tribunals in the future.
Little solid research has been undertaken to examine the psychological impact of criminal proceedings on survivors of violence (Mendeloff 2009). In Cambodia, at least some empirical evidence is available that may allow for a preliminary judgment. When being asked about the most positive moments in the Duch trial, 75 Cambodian-based Civil Parties in Case 001 listed the following during interviews with the Berkeley Human Rights Centre and the Transcultural Psychosocial Organization (TPO): a) when victims were able to tell their stories; b) when Duch told us what happened at S-21; c) when Duch was found guilty; and d) when I was recognized as a victim. The majority (77 percent) of the respondents expressed perceiving their participation as satisfactory (Pham 2010). Many survivors also emphasized their satisfaction in fulfilling a duty towards their murdered relatives and those who do not have a voice to speak out (Pham 2010). Clearly, for many civil parties providing testimony was important to “tell the world the truth” and to have their suffering acknowledged by the Cambodian government and the international community. It appears that the experience of being recognized and able to contribute to the tribunal's efforts gave many an increased sense of self-worth and self-efficacy, important elements in a long-term healing process (Strasser et al. 2011). Moreover, the numerous Civil Party meetings with legal representatives and NGO staff provided additional opportunities to reconstruct traumatic memories and to express painful emotions. The experience of mutual support and solidarity among survivors over the full length of the trial period appeared to be of utmost importance for their empowerment.3
However, as in other tribunals, Civil Parties also had to confront a variety of stress factors detrimental to their mental well-being. Indeed, the wishes and needs of Civil Parties were sometimes diametrically opposed to the requirements of the legal proceedings. The court required Civil Parties to submit to a complex set of rules and bureaucratic procedures that many did not fully understand.4 Moreover, many had difficulties in coping with the unfamiliar surroundings at the tribunal and the experience of repetitive accounts of highly traumatic events, such as the detailed description of torture and execution.5 Many were also frustrated that the trial did not always allow them to fully recount traumatic experiences because the ECCC's limited mandate – for crimes committed between 1975 and 1979 – required an artificial fragmentation of the survivors’ biographical account. Others felt particularly challenged by the need to prove the credibility of their accounts.6 In general, there was little time for the expression of pain, sadness or anger which was often rather perceived as interfering disturbances than as an important contribution to the understanding of the case.7 Little awareness of psychological reactions by some tribunal staff, gender insensitivities and the lack of female investigators or interpreters added to stress and feelings of disempowerment for several Civil Parties.8 The uncertainty about the status of their application presented another challenge for Civil Party applicants.9 When the Trial Chamber announced the inadmissibility of 24 Civil Party applicants on the day of Duch's final verdict, most of those rejected reacted with intense emotional distress. Perhaps the most stressful issue was Duch's verdict itself. Duch was initially sentenced to 35 years, but the court reduced the sentence to 19 years on the grounds that he had been detained illegally for years before the tribunal was established. Many Civil Parties experienced this sentence as unjust and disappointing. However, this experience by Civil Parties of Case 001 might not be representative for all survivors. In contrast to the abovementioned experiences, a recent survey among 226 Civil Party applicants of Case 002 showed that 70 percent of the interviewees were satisfied with Duch's sentence (Stammel et al. 2010).
Despite these challenges, the experiences and survey results in summary point towards significant psychological benefits of the Civil Party mechanism. The Civil Party mechanism appears to be beneficial because it allows for more opportunities in taking on active roles in and outside the proceedings, in gaining understanding of the circumstances of the crimes committed, and in linking individual memories to the court's narrative. Given the numerous prominent figures that emerged out of the Civil Party group, there is no doubt that Civil Party participation and close engagement in the court's proceedings can have an empowering effect on survivors. Many Civil Parties have actively taken on the opportunity to develop identities other than that of “survivors.” This is exemplified by the foundation of the “Ksem Ksan Victims Association,” the first association of Khmer Rouge survivors in Cambodia. For now, it appears that the salutary effects of victim participation overweigh the harmful aspects. However, it is too early to draw final conclusions on the Civil Party mechanism's impact on healing. More time and additional research is needed to examine the psychological dynamics by which the ECCC's judicial process affects Civil Parties and to assess the long-term psychological outcome of Civil Party participation.
Civil Party support services and outreach activities
Enabling victims to participate actively in criminal proceedings demands a set of comprehensive logistic, legal and psychosocial support services and “the allocation of adequate resources to the ECCC Victims Support Section (VSS), civil society organizations, victim associations and civil party lawyers” (CHRAC 2010). Unfortunately, given a lack of funding and staffing, the VSS was not fully operational until late 2009, near the conclusion of the “Duch” trial.
The VSS focused most of its activities on receiving and processing applications from Civil Parties and complainants, as well as conducting a limited number of field trips and provincial outreach forums. It also cared for logistical and practical arrangements, such as providing transport to the court for Civil Parties. The ECCC Witness and Expert Support Unit (WESU) assisted Civil Parties before and during their testimony by providing logistical and emotional support, financing the contribution allocated to witnesses and setting up protective measures, if necessary. However, even when fully operational, the VSS seemed to struggle with a lack of funding and human capacities. For instance, the section did not appear to have sufficient resources to facilitate adequate legal representation. In consequence, legal support and follow-up information services to the numerous survivors, who applied as Civil Parties or complainants to the ECCC, were stretched thin. Several lawyers expressed frustrations at the resource constraints that prohibited them from having more meetings with their clients (Asian International Justice Initiative 2010). This raised criticism among Civil Parties and NGOs alike, for example, the Cambodian Human Rights Action Committee (CHRAC) and the International Federation on Human Rights (FIDH) repeatedly pushed the ECCC to improve victim participation stating that “only a more proactive outreach to Civil Parties can help to rectify some of the past miscommunications, better manage the expectations of those participating in the process and acknowledge their suffering” (International Federation on Human Rights 2010). Despite being entirely dependent on funding by external donors independent from the ECCC – local NGOs carried the main burden of engaging survivors in the justice process. Their work was essential to identify Civil Party applicants and complainants, to forward complainant forms to the court, and to ensure legal representation and information. In Case 002, from 8,202 applications submitted to the tribunal's VSS around 84 percent (6,881) were submitted by NGOs. Also, under a Memorandum of Agreement with the court, the TPO took on responsibility for providing psychological services to witnesses and Civil Parties at the ECCC. Services range from preparatory psychological interventions to on-site emotional support during the proceedings, to intense psychological and psychiatric follow-up care. Clearly, without these concerted efforts by civil society, Civil Party participation would not have been possible.
Other activities by the ECCC and civil society concentrated on informing the public and improving knowledge and understanding of the court's activities. The Public Affairs Section distributed information material and facilitated visits by more than 65,000 people to the court. Comprehensive information on the court can also be found on a number of websites and in social media.10 Several national and international TV stations report daily on latest developments in the ECCC. Local NGOs such as the Cambodian Human Rights and Development Association (ADHOC), the Khmer Institute of Democracy, the Centre for Social Development, the Cambodian Defenders Project (CDP) and the Documentation Center of Cambodia engaged in widespread public information campaigns and public forums. Most of these activities concentrated on the legal and judicial aspects of victim participation and the functioning and mandate of the court. However, several nationwide radio programs by civil society organizations address broader aspects of Cambodia's justice process, such as the relation between perpetrators and victims, the after-effects of the civil war on Cambodian communities, past and current reconstruction efforts, Buddhist concepts of reconciliation, and so on.
However, despite their important role, NGOs long remained poorly integrated into the ECCC's outreach strategies. Moreover, given the lack of financial support by the state and/or the ECCC and few alternative income generating opportunities, NGOs were almost entirely dependent on funding by various international donors such as the UN Voluntary Trust Fund for Victims of Torture, the European Commission, Oxfam/Novib, USAID and private foundations.
Civil society's most important bilateral partner in terms of technical support is the Civil Peace Service of the German Agency for International Cooperation (GIZ). As early as in 2007, GIZ set up a program to support local organizations in their transitional justice activities. According to external reviews, GIZ's placement of nine senior advisors in national NGOs – including one advisor in the VSS – clearly led to increased capacities in realizing a broad spectrum of transitional justice interventions.11 In addition, GIZ supported victim participation at the ECCC by providing Civil Parties with legal representation and transport costs, and through the funding and facilitation of workshops, meetings and conferences aimed at knowledge building and inter-organizational collaboration. Other international organizations engaged in the transitional justice process include REDRESS, the International Center for Transitional Justice (ICTJ), the International Federation for Human Rights (FIDH), and the Open Society Justice Initiative (OSJI). REDRESS supports non-governmental agencies in their efforts to advocate for meaningful and feasible reparation schemes and advises the ECCC on this matter. ICTJ engages and advises on the development of effective victims’ participation schemes and their legacy for Cambodia's justice system. OSJI has been present on the ground in Cambodia since 2003 to monitor developments, raise local and international awareness about the court, and provide technical assistance. Research institutes such as the War Crimes Studies Centre, University of California, the Northwestern University School of Law, and the Berlin Centre for the Treatment of Torture Victims undertake independent monitoring and research projects on the tribunal's impact and the trauma-related dimensions of transitional justice work.
The technical support, advocacy activities and funding by the above-mentioned organizations have been vital to bring the ECCC and Cambodia's transitional justice process to where it is now. However, given the lack of funding from the court, local civil society organizations still had to struggle with resource constraints threatening the efficacy and comprehensiveness of their transitional justice programs. As a result, and in particular at the beginning of the proceedings, much of their work focused on seeking out and encouraging victims to lodge complaints and providing them with legal representation through their lawyers. Despite the general consensus that the political violence led to trauma impeding the search for truth, justice and reconciliation, most NGOs and practitioners gave little attention to the concepts and practices of trauma work upon the prospects for healing and reconciliation. Psychological dimensions were often forgotten or assumed to be sufficiently addressed through the beneficial effects of judicial measures. For instance, the informative and educative character and the one-off approach of many information and education activities did not leave much space for narrative elements and cautious reconstructions of personal and collective traumatic histories. Moreover, many of the transitional justice activities were not accompanied by psychological staff, while many of the legal staff had only limited awareness of trauma and its after-effects resulting in emotional stress on both sides.
With limited funding available, TPO, the major mental health organization in Cambodia and the only Cambodian psychosocial organization engaged in transitional justice activities, was not able fully to complement legal support and information activities with psychological services such as community-based mental health care or decentralized awareness raising activities on the trauma-related dimensions of reconciliation and justice work. Nevertheless, TPO was able to offer comprehensive psychological services at its treatment centre in Phnom Penh – with a multidisciplinary team of psychiatrists, psychologists and social workers – and through four provincial offices in Battambang, Beantey Meanchey, Kampong Thom and Siem Reap. In addition, TPO accompanied outreach interventions by partner organizations, installed a phone hotline reaching more than 200 people on a regular basis, produced outreach materials, and offered information on the trauma-related dimensions of reconciliation and transitional justice processes in TPO's, CDP's and ADHOC's nationwide radio programs.
The question of reparations and its mental health impact
In a nationwide survey conducted in the fall of 2008, 1,000 Cambodians were asked what “generally should be done for survivors of the Khmer Rouge and their families” (Pham et al. 2009: 43). Twenty-six percent stated that support for agriculture and farming should be provided, 23 percent mentioned social services such as healthcare and counseling, 22 percent asked for financial support, and only 17 percent requested that those who were responsible for crimes should be punished (Pham et al. 2009). This suggests that survivors and their families prioritize basic needs over the legal process.
However, in Case 001 of the trial, the Trial Chamber rejected Civil Parties’ reparation claims on the basis that it had no means to enforce them against the accused (ECCC Internal Rules). As a result, many Civil Parties expressed strong feelings of disappointment.12 For many, the lack of reparations was perceived as arbitrary and a sign that the ECCC did not acknowledge people's suffering. In response, CHRAC and FIDH repeatedly urged the tribunal “to make recommendations, such as to the State, and endorsing feasible forms of collective reparations. Otherwise, the ECCC risks the potential of a positive legacy with regard to the survivors it is meant to serve” (FIDH 2010).
The recently amended ECCC Internal Rules address this issue by opening up opportunities for “moral and collective reparations” through external funding sources. Such measures will be developed and implemented by the VSS in collaboration with governmental and non-governmental agencies. However, despite a recently established collaboration with the UN Trust Fund to End Violence against Women allowing for some forms of moral and collective reparations, the VSS will face significant challenges in realizing additional measures of reparation, as it remains entirely dependent on external funding sources. Thus, although most NGOs welcome the VSS's new mandate and renewed emphasis on collaboration, civil society organizations stress the lack of financial resources to fulfill this challenging task (FIDH 2010).
Meanwhile, Civil Parties continue to press for more comprehensive reparation measures. When being asked about their preferences regarding “collective and moral reparations”, 18 percent of the approximately 4,000 ECCC Civil Party applicants in Case 002 demanded medical services; 16 percent expressed that infrastructure should be improved, 16 percent asked for the construction of schools; 12 percent requested individual reparations; and 13 percent favored religious ceremonies.13
Truth-telling, memorialization and healing initiatives
In Cambodia, the Documentation Center of Cambodia has been at the forefront of truth-seeking activities, with documentation, information, archives, and publications. For instance, the center conducted thousands of interviews with Khmer Rouge victims and perpetrators around the country reconstructing memories and documenting crimes committed by the Khmer Rouge. A number of other organizations, most notably the Bophana Audiovisual Resource Center, Youth for Peace (YfP), TPO and CDP equally engage in documenting, producing and disseminating written, photographic, and audiovisual material on the Khmer Rouge regime. Various other memorialization activities initiated by civil society include creative activities such as films and exhibitions of paintings. For instance, a film on individual and collective coping mechanisms called “We want (U) to know!”14 produced by the Khmer Institute for Democracy and the International Center for Conciliation (ICfC) and facilitated by TPO, has been written, filmed and directed by Khmer Rouge survivors and their descendants.
Only few Cambodian and international NGOs are focused on long-term memorialization projects at the local level. Although other NGOs have also done work related to truth-telling and memorialization, these projects are ground-breaking as they offer community-engaged and process-driven initiatives barely seen in other contexts. YfP and ICfC are currently the only organizations implementing activities in this area of transitional justice work.
Since 1999, YfP has been actively seeking to work with Khmer Rouge survivors and the youth on intergenerational dialogues and to develop initiatives for memoralization within Cambodian communities. Moreover, YfP has organized various activities in relation to peace education and youth development. YfP also uses art as a creative and non-threatening way of reflecting upon the past with others and to transform mass killing places into vivid historical sites of remembrance. Thus, YfP aims to assist young people in their spiritual development and to encourage them to be active in building a culture of peace. Through this approach, YfP hopes to promote the understanding of Khmer Rouge history and to establish a positive legacy for the ECCC.
ICfC engages former Khmer Rouge soldiers, survivors and the second generation through sustained community work, where participants share their memories, fears and hopes in times of the tribunal. The methodology places the actual needs of participants at the centre and addresses the societal dimension of “healing” by initiating a collective reconstruction of local histories. ICfC aims to enable community members “to appreciate the complexity of their own and their adversary's pasts, to understand the process by which historical facts are selectively remembered, and to make space for points of mutual acknowledgment, empathy and eventually, the beginning of trust.”15 An evaluation of the program in four Cambodian communities indicates that participants, as a whole, showed greater sense of community, greater self-disclosure discussing Khmer Rouge experiences, as well as fewer social constraints from their peers when talking about their experiences (Field et al. 2009).
Whereas YfP and ICfC primarily aim to mobilize community resources, TPO offers an approach to truth-finding and memoralization focusing more on the use of culture-sensitive trauma treatment methods derived from testimonial therapy. TPO's rights-based and culturally adapted, treatment approach aims to combine western and local concepts of trauma healing. TPO hopes to promote individual healing by allowing survivors of violence to reconstruct their traumatic memories in a safe setting and “by linking their experiences to a wider societal narrative” (Clancy and Hamber 2008: 23). In contrast to the narratives produced within the legal proceedings of the court, which are often narrowed by the focus on specific facts related to the case, TPO wants to give survivors the time and necessary emotional support to develop their personal “narrative of violence” – because “[n]arratives not only explain events; they are integral to how we decide what is an event and what is not” (Feldman 1991). Inspired and facilitated by the work of Agger (Agger et al. 2009) and the Treatment and Research Centre for Survivors of Torture,16 TPO adapted the method to the Cambodian cultural context by integrating traditional and religious practices in cooperation with local pagodas and Buddhist monks. The integration of religious practices – chanting of monks, blessing and purification rituals, the use of protective strings – reflects the significance of traditional coping mechanisms in Cambodia's spirit-based culture. In testimonial therapy, as applied by TPO, the testimony is read aloud and delivered to the survivors by monks from a local pagoda in a Buddhist ceremony in presence of other survivors, relatives and/or community members. TPO's ongoing survey on the effectiveness of this approach points towards multilayered therapeutic effects. The public delivery of the testimonies in the presence of Buddhist monks, other survivors and community members promotes the acknowledgment of suffering and the destigmatization of survivors and thereby allows survivors to restore their dignity. It further allows survivors to ease the suffering of the spirits of ancestors and to pay honor to deceased relatives. As most Khmer Rouge survivors do not know how and where their family members came to die, the subsequent conduction of ceremonies and offering of goods is a way to satisfy the demands of the spirits, so they can exert their positive influence on the survivors left behind.
Towards a holistic transitional justice strategy in Cambodia
It is well known that most survivors of the Khmer Rouge regime emphasize the importance of retributive justice for individual and national reconciliation. Indeed, the ECCC proceedings seem to be able to absorb some of victims’ anger and indignation by prosecuting and punishing those responsible for their loss and suffering (Sonis 2009). Perhaps one of the most important steps taken by the ECCC has been the inclusion of a comprehensive Civil Party participation mechanism in its proceedings. Hence, for the first time in an international criminal tribunal, survivors of mass atrocities have been included in the trial process as “Civil Parties,” rather than as simple witnesses, an innovation which has been widely praised as a historic step forward to improve victims’ rights. For many Civil Parties, the Civil Party mechanism offered new opportunities, as much as it helped to be heard and to recount their traumatic memories, commonly seen as two important elements in the healing process. However, victim participation also required the ECCC and civil society to deal with challenges that have not always been comprehensively addressed. These shortcomings carry the risk of being psychologically harmful and of increasing Civil Parties’ suffering. Thus, shortcomings in the management of the legal proceedings need to be urgently addressed to prevent any further harm to survivors. Moreover, additional legal support and information services during outreach are essential to ensure legal representation and information on the court's progress. Also, more space is needed to allow for a careful reconstruction of personal and collective traumatic histories. Here, it is also imperative to identify expectations about the verdict, as well as to make sure that expectations are realistically managed.
Despite such shortcomings, we believe that the ECCC hold much promise and are a big step towards national reconciliation. But can judicial measures alone lead to justice and healing? Certainly not, the painful reality is that healing requires time and efforts far beyond the tribunal. Thus, individual as well as national reconciliation and healing will require more than retributive measures (McGrew 2006).
For justice and reconciliation to be realistic goals, national and international organizations must make concerted efforts to deal with the mental health traumata of the past. Given the high level of traumatization in Cambodian society, future transitional justice activities need to address more effectively the psychological and social after-effects of cumulative traumata suffered by individuals and communities. Additional psychological support services during transitional justice activities by and in the context of the ECCC are urgently needed. A further area of involvement includes the training of ECCC and NGO staff to enable legal staff to better deal with potentially traumatized individuals and to refer them to appropriate support services. Having in mind the large number of Civil Parties in the upcoming Case 002, the foreseeable lack of psychological support structures is alarming. As Herman (2010) states: “without additional financial support it is unlikely that [TPO] would be able to replicate their … services for thousands of Civil Parties.”
However, it should not be the goal to uncritically transfer Western biomedical approaches to trauma, as exemplified in the concept of post-traumatic stress disorder (PTSD). As stated by Hamber, “PTSD's individualistic and positivistic underpinnings are conspicuously ill-suited to describe suffering's social and non-rational aspects, particularly when suffering is brought about by political violence that is deeply intertwined with social destruction and structural violence” (Clancy and Hamber 2008: 14). Psychotherapeutic and individual-centered interventions by mental health professionals can certainly be beneficial for those victims of human rights violations who experience severe mental health problems. However, the unquestioned assumption that war-affected individuals are necessarily vulnerable and in need for help and protection by mental health professionals easily leads to what Pupavac calls a “therapeutic governance” (Pupavac 2001), wherein survivors are being “pathologized” and where their suffering is privatized (Medico International 1997). Mendeloff, for instance, reminds us that “we know from historical experience, as well as the literature on PTSD, that … most members of society, even if exposed to wartime trauma, do not suffer debilitating illness” (Mendeloff 2009: 617). Despite great hardships, most wartime survivors are functioning, highly capable members of their societies (Summerfield 1995).
Coping with political violence is centrally linked to cultural and societal constructions of meaning. The simple presence of PTSD-related symptoms does not mean that phenomena have the same meaning across cultures. Argenti-Pillen points out that the Western concept of traumatic stress “is embedded in a culture-specific moral culture that coalesces around the secular moral authority of the modern State” (Argenti-Pillen 2000: 49), whereas indigenous sociologies often use other forms of moral authority and symbolic reconstruction when dealing with extreme suffering. For instance, the reconstruction efforts by indigenous communities after the civil war in Guatemala called the attention to the importance of local cosmologies and cultural meaning systems for healing and recovery. In Cambodia, the continuing bonds to spirits of ancestors help people to deal with and make sense of personal losses (Van de Put and Eisenbruch 2002). Local rituals were and are being used to address the spirits of deceased and to counter the “return” of memories of violence, for instance through vengeful spirits (Baines 2010).
Kayser-Whande and Schell-Faucon (2008) emphasize that such interventions as reparations programs and memorialization initiatives are seen today as important additional measures to “tailor the right transitional justice package.”
In response to the above-mentioned challenges, various scholars and practitioners developed an alternative framework to trauma work, commonly known as the “psychosocial approach,” as a means of thinking about distress from social, legal, political, cultural, and medical perspectives.17 “A psychosocial approach recognizes that trauma work following political violence requires to address the social and political context as well as individual psychological needs” (Hamber 2004). It acknowledges the dialectical relation between psychological, social, economic, and cultural reconstruction work, public discourse and memory culture (Becker 2002). As suggested by Hamber, one could understand the psychosocial approach as a way to look at reconciliation and peacebuilding programs from a wide range of angles, taking into account legal, psychological, economic, and socio-cultural aspects.
Hamber also argued “that the relationship between peace-building, development and addressing the trauma of political conflict are intertwined; that is we cannot adequately address trauma without placing it at the heart of wider peace-building initiatives and development programs, and vice versa” (Clancy and Hamber 2008). Trauma work and peacebuilding can only be understood as an interactive process between an affected individual or community and its sociopolitical, cultural, and economical environment. Those seeking to help traumatized survivors, to provide “justice” and to foster national reconciliation should therefore look far beyond the tribunal.
An emphasis on a more comprehensive, national transitional justice strategy is vital not only to foster individual rehabilitation but as part of a larger societal attempt at social reconstruction and reconciliation.
Memorialization and reparation programs in Cambodia's transitional justice process
Memoralization and truth-telling
Over the past decades, truth-telling initiatives and public memorialization efforts such as monuments, museums and art projects have become common key features in peacebuilding efforts. In very different contexts, communities see truth-telling and public memorialization as central to justice, reconciliation, and reparation; as in Rwanda where the Kigali Memorial Centre is a permanent reminder of the 250,000 people that are buried at the memorial's site; or in South Africa where witnesses participated actively in public hearings of the Truth and Reconciliation Commission.
In Cambodia, thousands of people have already mobilized around memorials, often built with scarce resources and through local community initiatives. Each year, people come together during “Pchum Ben” (Ancestors’ Days) to commemorate and pay respect to their deceased relatives. Poetry, drama, music, and painting are also widely used by Khmer Rouge survivors to remember the past.
Despite a number of significant memorialization efforts at the national level, few attempts by the state and non-governmental organizations were made to deal publicly with the past at the local level. Here, there is a clear absence of widespread community action. However, as detailed above, there is no lack of innovative pilot projects by some civil society organizations emphasizing a focus on long-term, process-driven and community-based memoralization and truth-telling initiatives. Some proponents have faith that these programs will only increase in number over time due to work by NGOs such as YfP, ICfC, CDP and TPO. However, there is a distinct lack of funding. As a result, a wider process of memorialization and truth-telling that engages larger segments of the Cambodian and offers community spaces “in which individuals can constitute a new identity by gazing upon the past in a … personalized way” (Hamber and Wilson 2002) is currently not in sight.
In our view, memorialization and truth-telling initiatives should not be limited to national memorial sites or events. First and foremost, activities and programs in this area should aim to provide local, long-term opportunities where people can come and understand what happened and where victims and perpetrators can engage in dialogues. Survivors of the Khmer Rouge need spaces where they can mourn, reconnect with their past and project themselves into the future. Local memorialization and truth-telling initiatives will give victims new opportunities to develop an understanding about why people killed and to bring back that information directly to their communities. Such initiatives may also provide a space for perpetrators to confront their past and to engage in dialogues that may facilitate healing and movement towards reconciliation.
However, we believe that memorialization and truth-telling should widely integrate psychological concepts, practices, and personnel. Otherwise, their beneficial effects could be compromised as remembering and truth-telling may revoke strong feelings and even trigger PTSD symptoms. Moreover, cultural coping practices need to be more thoroughly assessed. In addition, questions of memorialization organization are crucial, as its positive effect might depend on which stakeholders can participate.
Recognizing the power and potential of memorialization and truth-telling, victims’ groups and a number of experts and practitioners have long advocated for additional such initiatives as key components of the Cambodian transitional justice process (McGrew 2006). However, there is still a distinct lack of funding for activities in this area. Unless the ECCC, the government and international donors step up to provide funding, the tribunal could result in a lack of closure. Memorialization and truth-telling also needs to be taken more seriously as a social and political force in shaping a culture of democracy. By engaging new generations in the lessons of the past, such measures not only create understanding and empathy with survivors but also play an important contribution to people's engagement in human rights and a broader culture of democracy.
Collective and moral reparations
For restorative justice, the question of reparations must be comprehensively addressed. Clearly, this gap in Case 001 is out of line with current developments in international criminal justice, which increasingly recognizes a right to reparations (Pugh 1999; REDRESS 1997).
Since September 2010, the VSS has the mandate to design and implement collective and moral reparations in coordination with the ECCC's lead co-lawyers and external actors such as NGOs. Unfortunately, funding and sufficient staffing for such mechanisms was not allocated. Given the lack of funding within the ECCC, and in view of NGOs’ expertise and existing structures, it is clear that civil society engagement is the key for successful reparation measures in the future. However, NGOs equally have to struggle with constant funding constraints. Thus, donors should strongly consider financing both the ECCC and NGO initiatives in this important area of transitional justice work in order to maximize the ECCC's meaning for survivors. However, the ECCC could also take advantage of its other opportunities to engage on the issue of reparations. For instance, the trial chamber “can recommend measures, help to catalyze action by donors and civil society, or bless actions undertaken by other entities even if it does not physically implement or fund a reparations scheme itself” (Ciorciari 2010).
Reparations are indeed a key element to the success of a process, which ultimately aims at repairing the physical, emotional, and moral damages of past abuses. Memoralization and truth-telling initiatives are certainly one important form of reparation. However, reparations should also include services in diverse areas such as healthcare and economic development. Moreover, a clear commitment from the government is imperative if the healing and reconciliation process is to continue in any meaningful way after the ECCC and civil society organizations have completed their work. Ignoring the needs of survivors can only constrain democracy and peaceful interaction. In terms of healthcare and social services, the state will bear a particularly important responsibility towards survivors and their families for many years to come.
Conclusion
The first section of this chapter reflects the insights we gained from victims and their representatives on past transitional justice activities by and in the context of the tribunal. We note that the ECCC play a central role for two reasons. First, accountability and retributive justice measures and punishment are important for reconciliation and for reinstating a sense of order and safety. Second, the potential psychological benefits of retributive justice measures are well known. We argued that we consider the Civil Party mechanism as a significant advance in the field of international justice. Although for some of the survivors the process was especially painful and did not meet their expectations, for most the Civil Party scheme appeared to be beneficial as much as it increased active and meaningful participation in the judicial process and provided acknowledgment of the suffering, damages and losses they endured. However, victims’ participation also required the ECCC and civil society to deal with challenges that have not always been comprehensively addressed. These shortcomings carry the risk of being psychologically harmful. Indeed, an effective and meaningful victim participation scheme at the ECCC requires sufficient funding and full commitment from policymakers and donors. It is too early, however, to make final conclusions on the Civil Party mechanism's impact on healing. More time and additional research are needed to assess the psychological dynamics by which the ECCC's judicial process affects Khmer Rouge survivors.
Strong civil society existed from the beginning of Cambodia's transitional justice process. With significant help from international organizations, civil society organizations played a leading role in the ECCC's outreach activities. With the late establishment and understaffing of victim support at the ECCC, Cambodian NGOs proved instrumental in ensuring the submission of Civil Party applications, legal representation and other forms of support for Civil Parties throughout the process (Herman 2010). However, given the urgent need to ensure the submission of Civil Party applications and their legal representation, many transitional justice activities were not sufficiently equipped to offer “containment” for reactivated trauma memories and painful feelings. TPO, the only psychosocial organization engaged in transitional justice activities, designed and implemented comprehensive mental health services in a number of areas. Yet, additional financial support is urgently needed to replicate these services for the thousands of Civil Parties in the ECCC's second case.
In the second section of the chapter, we note that little attention was given to the mental health related dimensions of peacebuilding. Transitional justice work inevitably touches the complex individual and collective traumatization caused by mass violence and destruction. Therefore, we cannot adequately ensure justice without placing mental health at the center of transitional justice initiatives. However, we also expressed the need for a contextual and multifaceted approach to mental health. In line with Hamber's (Clancy and Hamber 2008) overview of key positions and critical questions on trauma, peacebuilding and development, we proposed the psychosocial approach as an alternative framework for transitional justice work in Cambodia.
Given the numerous wishes and needs of Khmer Rouge survivors beyond retributive justice measures, it is clear that criminal prosecutions alone will not fulfill the ambitious goals of justice and healing. We therefore argued that the justice process needs to be tied to a wider process of reconciliation. Peacebuilding requires programming that takes into account the political, cultural, socioeconomic and mental health aspects of transitional justice. Thus, retributive and restorative justice measures should be combined as they fulfill different purposes within the framework of transitional justice.
In the last section, we then suggested two elements that we consider particularly vital to complement the peacebuilding process in Cambodia. First, long-term, process-driven and community-based memorialization and truth-seeking initiatives are crucial to bring people together to confront their past and to work towards a shared vision of the future. Despite civil society's achievements in this area on the national level, only a few NGOs implement their innovative pilot projects at the local level. In our view, however, the essence of memorialization and truth-telling is to invent local, community-engaged initiatives that allow victims to tell their story in an open and receptive environment, to reveal a comprehensive truth of what happened, and which may also allow for a dialogue between perpetrators and victims. Only by combining national and community-based truth-telling and memorialization initiatives, can this approach effectively contribute to the construction of a national identity based on human rights, and thus prevent further crimes in the future. Second, the question of reparations appears to be of particular importance to adequately repair the emotional and moral damages of past crimes. In this regard, we argue that mental health services and memorialization activities should be part of the reparation process, however, we highlight that reparations should also address survivors’ physical health and socioeconomic needs.
For now, both the ECCC and civil society continue to struggle with distinct resource constraints. Additional funding by the international community and the Cambodian government is urgently required to secure future activities in this important area of transitional justice work. However, with the momentum created from the Duch trial, its new mandate as well as first external funding sources, the ECCC are now well equipped to respond in more integrated manner to the wishes and needs of survivors through non-legal transitional justice measures and reparations. Dealing with this challenge requires new partnerships and interdisciplinarity. It is a promising fact that a number of NGOs recently expanded their activities towards the inclusion of memorialization and truth-telling measures. Indeed, with their experience, they appear to be best positioned to conduct non-legal measures in collaboration with or independently from the courts. In doing so, NGOs should continue to strengthen their own collaboration efforts to maximize resources and to prevent the duplication of efforts.
Finally, one must keep in mind that all these initiatives combined may not be able to fully compensate for individuals’ suffering. For many victims, there can never be anything like complete psychological rehabilitation; the participation in any transitional justice initiative can only be one step along the long road. On the other hand, many Khmer Rouge survivors managed to grow personally as a result of trauma and overcoming its aftermath. They learned to overcome their helplessness, to find new meanings in life and to develop new social networks. Today, there is clear evidence that these experiences often lead to positive psychological change and significant personal resources such as a greater sense of personal strength, a higher appreciation of life, the ability to grieve, spiritual development, a changed sense of priorities, etc. Thus, survivors can play a key role in fostering justice, healing and reconciliation in Cambodian society, and to make sure that crimes under the Khmer rouge are never forgotten and never happen again.
Notes
1 One recent study demonstrates that 11.2 percent of the overall Cambodian adult population presents probable post-traumatic stress disorder (PTSD). An additional study, conducted in 2008 with a non-random sample of direct Khmer Rouge survivors, indicated likewise the high prevalence of PTSD, as well as approximately 30 percent of depression and 37 percent of anxiety among respondents (Sonis et al. 2009; Stammel et al. 2008).
2 Based on civil law system, the Internal Rules of the ECCC allow survivors to participate in its proceedings as complainants or as Civil Parties. In the ECCC Internal Rules, the term “survivors” refers to a natural person or legal entity that has suffered harm as a result of the commission of any crime within the jurisdiction of the ECCC; “Civil Party” refers to a victim whose application to become a Civil Party and participate in the proceedings against an accused has been declared admissible by the court. See: ECCC Internal Rules, (Rev. 5), 9 February 2010, Rules 49, 23.
3 According to interviews with Civil Parties of Case 001 conducted by the authors in 2010.
4 Herman (2005) argues that the views on justice and the needs of survivors of (sexual) violence often do not fit to the standard procedures of criminal and civil law.
5 One Civil Party, whose husband was killed in S-21, collapsed when his name was mentioned during an examination of torture methods applied in S-21. See: Khmer Rouge Tribunal Monitor [hereafter KRT Monitor]. Report Issue No 9. Week ending June 21 2009, p. 9.
6 See testimony by Civil Parties Nam Mon and Poak Khan: Transcripts of Trial Proceedings: Case File No 001/18-07-2007-ECCC/TC, 8 July 2009, 0902H Trial Day 41; Case File No 001/18-07-2007-ECCC/TC, 13 July 2009, 0901H Trial Day 43.
7 During his testimony, Civil Party Bou Meng was asked by the judge to “recompose himself” after having cried silently for a few seconds. See: Transcript of Trial Proceedings: Case File No 001/18-07-2007-ECCC/TC, 1 July 2009, 0905H Trial Day 37: p. 14.
8 According to TPO staff and Civil Party lawyers.
9 The Trial Chamber determined that it would render a decision on the merits of the Defense's challenges to the Civil Party's applications at the time at which the verdict is handed down.
10 See: http://www.krtrial.info/?language=english, http://cambodia.ka-set.info/
11 According to an external evaluation by the German Ministry of Development Cooperation in 2009 and 2010.
12 According to statements of Case 001 Civil Parties during a press conference of the Open Society Justice Initiative on 26 July 2010, the day of Duch's verdict.
13 Data presented by the ECCC survivors Support Section at a roundtable discussion with civil society organizations, Phnom Penh, September 2010. Figures based on preliminary data.
14 http://www.we-want-u-to-know.com/
15 http://centerforconciliation.org/
17 See: The Psychosocial Working Group: http://www.forcedmigration.org/psychosocial/