Title: Between the Scylla and Charybdis of Prosecution and Reconciliation: The Khmer Rouge Trials and the Promise of International Criminal Justice
Abstract: The issue of versus has long been at the center of the controversy on international prosecutions for crimes in transitional and post-conflict societies. Opponents of international prosecutions have taken umbrage at the presumption that justice can only be rendered through criminal prosecutions by an international tribunal often far removed from local realities and voiced their concern about the destabilizing effects such prosecutions can have on local peace building initiatives that often provide amnesties for participants in mass atrocities. (1) International criminal lawyers have answered these charges by arguing for a more holistic concept of peace in which justice is a prerequisite for a stable society based on the rule of law and prevention of impunity, and put forward holding individuals criminally responsible in a fair and impartial setting as one of the best methods for achieving this objective. (2) Thus far, this heated debate has rarely progressed beyond the hallowed corridors of the International Criminal Court (ICC): there is a rich and growing scholarship exploring the tension between the ICC and alternative justice mechanisms, particularly amnesties and traditional justice practices. The bulk of this literature however, lavishes its attention on the ICC as the prima donna of international criminal prosecutions, often treating the individual actors within the institutional structure as minor extras, whose interests come as an afterthought. (3) Another strand of writing develops on the role of particular players in the ICC apparatus, but is inconclusive on their precise contribution to the peace versus justice conundrum. (4) I therefore propose to focus on and develop a more sophisticated theoretical construct of the role of the agent who occupies the preeminent position in confronting and deciding between these opposing camps: the prosecutor of an international or hybrid tribunal. I will tease out and suggest possible points of resolution in this debate through a study of a recent dispute between the national and international co-prosecutors of the Extraordinary Chambers in the Courts of Cambodia (ECCC), tasked with prosecuting seniors leaders of, and those most responsible for the crimes committed during the reign of, the Khmer Rouge. (5) The dispute centers on how widely the prosecutorial net should be cast so as to best serve the interests of justice. The international prosecutor has argued that enough evidence exists to indict more suspects than the five who have currently been indicted. (6) The national prosecutor has resisted opening judicial investigations into additional suspects on the ground that this would undermine national reconciliation. (7) This disagreement signals several firsts for international criminal law. It is the first ever instance of the prosecutors of an international(ized) tribunal (8) simultaneously exercising the discretion deemed inherent to their function, and reaching divergent decisions on whether and whom to prosecute. It also places the ECCC Pre-Trial Chamber in the novel position of an international judicial organ having to articulate standards for the review of prosecutorial discretion and decide between competing prosecutorial claims of prioritizing prosecution over rapprochement. The conflict is rendered all the more exceptional because the ECCC is the only hybrid tribunal that has co-equal national and international prosecutors, and which splits the decision-making responsibility evenly between national and international counterparts at all levels of the tribunal, except the judicial body, where the domestic judges are in a majority. (9) The dispute therefore implicates issues that challenge the seeming coherence of international criminal justice: the divergent aims, functions and constituencies pursued by actors in domestic versus international criminal trials. I begin with identifying the salient features of the dispute before the ECCC and considering the extent to which the ECCC law and institutional structure provide guidelines for its resolution. …
Publication Year: 2010
Publication Date: 2010-01-01
Language: en
Type: article
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Cited By Count: 1
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