When Transitional Justice Falls Short

A dove flies to its nest in Cundinamarca, Colombia, on Jan. 31, 2016.Erika Piñeros photos for Foreign Policy.

PHNOM PENH, Cambodia—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.

Cambodian Prime Minister Hun Sen addresses the media during a visit to Stung Meanchey’s bridge on his first appearance after the 2013 elections in Phnom Penh on July 31, 2013.

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.

Mout Moun, 78, a survivor, gives an interview to a local television network at the end of the ceremony at the Choeung Ek Genocidal Center on the National Day of Remembrance in Phnom Penh, Cambodia, on May 20, 2022.

Bou Meng (center, holding a makeshift walking stick) poses with other civil parties in front of the Extraordinary Chambers in the Courts of Cambodia (ECCC) in Phnom Penh, on Sept. 24, 2022.

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.

Land and human rights activist Tep Vanny protests in front of Cambodia’s appeals court as she finds out fellow activist and friend Yorm Bopha was sentenced to three years in jail on Dec. 12, 2012.

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.)

Romlah, who uses a pseudonym, walks around her village in Kampong Cham, Cambodia, on Oct. 2, 2022.

Fatimah, who uses a pseudonym, poses outside her home in Kampong Cham on Oct. 2, 2022.

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.

Survivors of the Khmer Rouge fight fatigue during the ECCC’s last proceeding in Phnom Penh, in which Khieu Samphan was handed a life sentence for crimes committed between 1977 and 1979, on Sept. 24, 2022.

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.

Ximena Ochoa, a victim of FARC and representative of thousands of victims, talks to a soldier in Cauca, Colombia, during a search for Rosalba Ariza, a 51-year-old teacher who was kidnapped by men wearing National Liberation Army (ELN) armbands on Nov. 16, 2016.

A soldier searches for Ariza in Cauca, Colombia, on Nov. 16, 2016.

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.

Ochoa poses for a photo in Bogotá, Colombia, on July 18. Ochoa said the peace deal, which promises “truth, justice, reparation, and no repetition” for victims like her, was a missed opportunity to achieve better outcomes for victims rather than perpetrators.

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.

Derly Pastrana (right), a social leader and human rights defender from Huila, Colombia, meets a fellow social leader in Bogotá on Feb. 10, 2020. Pastrana, who died after being attacked by gunmen in 2021, was testifying against FARC for sexual crimes and forced recruitment.  

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.

Aysha poses for an anonymous photo at her home in Kampong Cham on Oct. 2, 2022. “I’m still so angry. They killed all my family,” she said. “I have no words to describe what they did; there’s no justice.”

Many survivors of the Khmer Rouge regime still endure poverty and now live under an increasingly authoritarian government responsible for human rights abuses. Phil Robertson, the deputy director of Human Rights Watch’s Asia division, called the ECCC a “bust” with little lasting legacy for average Cambodians. After years and hundreds of millions of dollars spent, the ECCC convicted “three men of crimes that everyone knew they were guilty of,” while others “got off scot-free,” Robertson wrote in an email. Even under the watchful eye of the international community, Hun Sen manipulated the process to “get his way,” he added.

Now in her 60s, Aysha was the only member of her family to survive the Khmer Rouge era. She remembers the hardships of working in the rice fields and building canals. More bitter are the memories of being forced to eat pork against her will during a time when Qurans were burned. “I have no words to describe what they did. There’s no justice,” she said. Aysha and the rest of her family agree that “karma” may yet bring greater justice than the courts.