The abrupt end of the Khmer Rouge Tribunal in Cambodia and the ongoing proceedings in Colombia show how the process doesn’t always serve the victims.
Early one morning last September, buses filled with survivors of Cambodia’s Khmer Rouge regime and their families arrived in the capital, Phnom Penh. They traveled to the grounds of the Extraordinary Chambers in the Courts of Cambodia (ECCC) to witness the court’s last proceedings: a final stroke of justice for the millions of people who suffered under the Khmer Rouge between 1975 and 1979.
The ECCC, also known as the Khmer Rouge Tribunal, was established through an agreement between Cambodia and the United Nations signed in 2003; its hybrid judicial system combines local and foreign staff. But critics often questioned its vulnerability to political interference from the Cambodian government, led by long-serving Prime Minister Hun Sen—himself a former Khmer Rouge commander who defected. Over the years, the court spent nearly $340 million, resulting in just three convictions.
In its final act, the tribunal upheld the life sentence for former head of state Khieu Samphan, the last surviving leader on trial, who had appealed a 2018 conviction. In 2021, charges against the remaining accused in two untried cases were dismissed. The decision sparked controversy and again called into question the tribunal’s legitimacy; the local and international judges issued contradictory opinions. Irish Judge Maureen Harding Clark concluded that stopping the trials was “general and inflexible government policy.”
Transitional justice systems, which respond to mass human rights violations, are created to address specific needs. Since the Nuremberg and Tokyo trials in the wake of World War II, each successive system has influenced emerging courts—from the Khmer Rouge Tribunal to, more recently, the Special Jurisdiction for Peace (JEP) in Colombia. These systems claim to put victims at the heart of the process. But the surrounding political landscape can instead render victims disempowered or vulnerable.
Shortly before the court upheld Khieu Samphan’s verdict, anthropologist Alexander Hinton, who had served as an expert witness, wrote that the Khmer Rouge Tribunal was worth the expense and effort. He highlighted “modest achievements” including holding some leaders accountable, combating genocide denial, and adding to the historical record. Efforts to “robustly” engage “victims and the broader public” in the process have led to favorable views of the court and its proceedings among the victims, he said.
However, some of those who worked with the court have recorded discontentment throughout the years. Last year, lawyer Megan Hirst resigned, arguing that the Khmer Rouge Tribunal provided scant funding for victim participation. Hirst represented hundreds of civil parties—victims who officially participated in the court’s proceedings and were encouraged to seek symbolic “collective and moral reparations,” but not financial ones. Hirst said limited resource allocation made communication with her clients difficult, often leaving them in the dark about their cases. “We pretend that the victims are represented. But if the person who represents them can’t communicate with them, then they cannot be represented,” she said.
On the Khmer Rouge Tribunal’s final day, people patiently lined up at the security checkpoint. Journalists scrambled past each other to photograph the arrival of Bou Meng, a survivor well known for being kept alive and forced to paint propaganda in the infamous S-21 prison. Nearly 100 people sat in overflow space outside the air-conditioned auditorium. Fatimah, 27, and her sister-in-law, Romlah, 45, left their village in Kampong Cham province at 3 a.m. but still ended up seated outside. (Both women asked to use pseudonyms out of fear of retaliation.)
After the proceedings concluded, the visitors continued their tour of Phnom Penh, which included stopovers at the Tuol Sleng Genocide Museum and the Win-Win Memorial—a $12 million monument that commemorates the end of Cambodia’s decadeslong civil war in 1998. Their trip concluded 17 hours later, when they returned to their villages on buses organized by local government officials. It was Fatimah’s first trip to the capital.
The arrival of victims en masse for the court’s final day seemed to add moral weight to the argument for the tribunal. “I know that Khieu Samphan got jail time for the rest of his life,” Fatimah said. She joined other villagers at the court representing the members of the Cham Muslim minority, who were persecuted by the regime. Former Khmer Rouge leader Nuon Chea was convicted on historic charges of genocide against the Cham and the Vietnamese people in 2018. But neither Fatimah nor Romlah knew much about what Khieu Samphan or Nuon Chea had been charged with.
There were high expectations for the Khmer Rouge Tribunal from its beginning: to build confidence in Cambodia’s judicial system and to forge public trust in justice more broadly, particularly among survivors of the Khmer Rouge. But as the tribunal comes to a close with just three convictions, Cambodia’s ruling party is brazenly using the justice system to intimidate opponents. Meanwhile, some victims like Fatimah’s family members remain disempowered and underinformed, expressing a lack of understanding of the proceedings.
In a 2021 study, anthropologist Carol A. Kidron raised concerns over the reasons for participation in peace-building and reconciliation events in Cambodia, where roughly one in five people in rural areas live on less than $2.70 per day. Kidron recommended more awareness of the “disempowered position” of those dependent on nongovernmental organizations and government agencies for their livelihood. In some cases, people may participate under pressure or even out of fear of local leaders, as the sensitivity of the conversations with Fatimah and her family suggest.
Half a world away from Phnom Penh, victims of the protracted Colombian conflict have begun to watch the wheels of justice turn. In 2016, a controversial peace deal between the government and the Revolutionary Armed Forces of Colombia (FARC) paved the way for the Special Jurisdiction for Peace (JEP), which is intended to try those responsible for crimes committed by both armed actors. Like the ECCC, the JEP claims to put the victims at the center of the process, offering justice, truth, and reparations.
Last year, Ximena Ochoa stepped out of a bulletproof SUV and into a Bogotá café with the aid of a cane. Ochoa has participated in the JEP as a survivor of Colombia’s ongoing conflict and represented thousands of others like her. For more than three decades, Ochoa and her family have been the target of kidnappings, assassinations, extortion, and death threats by illegal armed groups, including FARC. The state provides a security scheme for high-risk civilians. “We’re the victims, and we have to live as if we were the criminals,” Ochoa said.
Alexandra Sandoval, a judge and former vice president of the JEP, said the system is the world’s first attempt to implement restorative justice at such a large scale, given the number of victims and the gravity of the crimes to be put on trial. Its approach seeks reparations for the victims by granting an opportunity for wrongdoers to recognize the harm they have caused, contribute to the truth, and apologize to their victims. The Cambodian transitional justice system sought a similar approach, but the convicted Khmer Rouge leaders were also punished with life imprisonment.
This year, the JEP is expected to sentence FARC members and state agents following kidnapping and extrajudicial killing investigations that began in 2018. The peace agreement ruled out incarceration as punishment, so the rulings will finally reveal what the JEP’s “special sanctions” entail. Sandoval argues that such sanctions, which could include community work or restrictions on movement, are “stronger” than imprisonment by forcing perpetrators to confront their victims. “It’s all thought out in the centrality of the victims,” Sandoval said.
But not all victims agree: For Ochoa, who has received numerous death threats, prison time would be a protective measure as well as a punitive one. Ochoa said powerful actors have used victims for political gain, adding that the victims’ participation legitimizes the efforts of donors and other organizations. She challenged the idea that confronting perpetrators is restorative for the victims. “To relive the immense suffering and bear the humiliation of publicly admitting that at some point in your life you couldn’t defend yourself and your family … that is an immense act of generosity from the victims.”
Others, like Vladimiro Bayona, whose son was kidnapped and disappeared in 2000, have questioned the sincerity and veracity of the “truths” contributed by perpetrators within the restorative justice system. Last June, he implored FARC leaders to reveal the location of his son’s remains. “You’re the only ones holding the truth,” he said.
The proceedings put participants at increased risk. According to the JEP’s official figures, at least 1,276 leaders and human rights defenders and 365 former combatants have been killed since 2016. Derly Pastrana, a JEP participant who sounded the alarm about insufficient protection for those who remain under threat, was gunned down inside her home in 2021. Sandoval doesn’t deny the dangers of participating in the transitional court. “We hope that, with this new government, things will improve,” she said. But reports show that violence has increased since leftist President Gustavo Petro took office last year.
Survivors like Ochoa worry that restorative justice could send a message that petty sanctions or even impunity can be expected in response to crimes against humanity. Ochoa said she continues to receive death threats but that she won’t give up—the JEP has provided a new forum for victims to speak out, despite its faults. “They can see me demanding my rights as a citizen, but they will never see me crying for what they did to me,” she said.