Transitional Justice and Victim Participation in Cambodia: A World Polity Perspective

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Transitional Justice and VictimParticipation in Cambodia: A WorldPolity PerspectiveThorsten Bonacker , Wolfgang Form & Dominik PfeifferPublished online: 17 Jan 2011.

To cite this article: Thorsten Bonacker , Wolfgang Form & Dominik Pfeiffer (2011) TransitionalJustice and Victim Participation in Cambodia: A World Polity Perspective, Global Society, 25:1,113-134, DOI: 10.1080/13600826.2010.522980

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Transitional Justice and Victim Participation

in Cambodia: A World Polity Perspective

THORSTEN BONACKER, WOLFGANG FORM ANDDOMINIK PFEIFFER

Since the 1990s, the term “transitional justice” has been commonly used to labelapproaches that deal with the past. From a world polity perspective transitional justicis based on global norms and offers various methods for coming to terms with macro-criminal wrongdoings. The most recent development in transitional justice was theestablishment of the Extraordinary Chambers in the Courts of Cambodia (ECCC). Inthe article we illustrate the fruitfulness of world polity research by referring to thecase of Cambodia, with a special focus on the implementation of victim participationby the ECCC. Our argument is that even if there are particular local conditions forthe Cambodian way of dealing with crimes committed by the Khmer Rouge, transitionaljustice in Cambodia can be seen as an adoption of globally institutionalised expectationsof how a state should present itself with respect to its dealing with past human rightsviolations. We argue that the inclusion of victims in Cambodian transitional justicemechanisms could be seen as a consequence of shifts in the global environment. Forthat, the shift of seeing genocide and mass murder not only as evil or a fate, but as a vio-lation of individual human rights, is crucial. Even so, we acknowledge the enabling effectthat local circumstances had on these developments.

In a 1998 article, entitled “Modern Law as a Secularized and Global Model”, Boyleand Meyer suggest that states tend to accept normative global expectations ratherthan ignore them. When worldwide opinion expects human rights, democracyand prosperity to be extolled, states normally do just that, because they considertheir international legitimacy to be at stake. “Even the most despotic dictators nowclaim to represent the interests of a nation’s citizens.”1 Today one can see similarbehaviour in response to demands on states with a criminal past: even the mostautocratic and corrupt regimes claim to be dealing with past transgressions andprosecuting those responsible.

In the following we adopt a world polity perspective that explains why statesimplement transitional justice mechanisms even for crimes that took place along time ago. In doing so, we demonstrate the additional insights gained

∗The authors would like to thank the reviewers and the editor for very helpful comments.

1. Elizabeth Heger Boyle and John W. Meyer, “Modern Law as a Secularized and Global Model:Implications for the Sociology of Law”, Soziale Welt, Vol. 49, No. 3 (1998), p. 217.

Global Society, Vol. 25, No. 1, January, 2011

ISSN 1360-0826 print/ISSN 1469-798X online/11/010113–22 # 2011 University of Kent

DOI: 10.1080/13600826.2010.522980

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through the application of macro-sociological theory to the predominantly micro-or meso-oriented research in transitional justice (especially in the form of casestudies). We wish to illustrate the fruitfulness of applying sociological institution-alism by conducting a case study of Cambodia’s transitional justice process, with aspecial focus on the implementation of the Extraordinary Chambers in the Courtsof Cambodia (ECCC). The ECCC was established in 2006, 30 years after the masskillings of the Khmer Rouge. Our argument is that, despite particular local con-ditions for the Cambodian way of dealing with crimes committed by the KhmerRouge, transitional justice in Cambodia can be seen as the adoption of globallyinstitutionalised expectations of how a state should present itself, concerning itsdealing with past human rights violations. Thus, the shift in seeing genocideand mass murder not only as evil or a fate but also as a violation of individualhuman rights is crucial.

We first introduce the central arguments of world polity theory, with a particu-lar focus on aspects that are relevant to the case of Cambodia. Consequently, thistheoretical outline is applied to transitional justice in general. We then furtherexplain how and why the transitional justice concept should be considered apart of our present world polity, and how world polity developments made theevolution of transitional justice possible. In the third section we continue ourexamination by providing an historical overview of the basic structure ofdealing with the past in Cambodia, focusing on macro-level processes. Thissection addresses the following two questions: what opposition emergedagainst a transitional justice process in Cambodia, and how was the main instru-ment, the Khmer Rouge Tribunal, agreed upon? Seen in an historical context, it issurprising that a transitional justice process was instituted in the form we know ittoday, which supports the idea that Cambodia’s motivations for dealing with itspast can be explained primarily from an exogenous perspective that focusesmore on the global environment of state behaviour. This is followed by a discus-sion of a new development in transitional justice, which first took place inCambodia: victim participation. This entails the possibility for victims to partici-pate more directly in the different approaches to dealing with past atrocities, forexample as civil parties in the criminal proceedings of the ECCC. Finally, weargue that this inclusion of victims in Cambodian transitional justice mechanismscan be seen as a consequence of shifts in the global environment in general, andparticularly resulting from the evolution of a human rights based conceptdealing with past atrocities. Even so, we acknowledge the enabling effect thatlocal circumstances had on these developments. In conclusion, we brieflydiscuss the benefits and limitations of this macro-sociological approach to thepresent case study, pointing out where, and to what extent, special attentionneeds to be paid to the specifics of local characteristics.

The World Polity Perspective

To explain why Cambodia has turned to transitional justice 20 years after the endof organised mass killing, instead of a “chosen amnesia”,2 we utilise world polity

2. Susanne Buckley-Zistel, “Remembering to Forget: Chosen Amnesia as a Strategy for Local Coex-istence in Post-genocide Rwanda”, Africa: The Journal of the International African Institute, Vol. 76, No. 2(2006), pp. 131–150.

114 Thorsten Bonacker, Wolfgang Form and Dominik Pfeiffer

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theory.3 The research programme of the so-called Stanford School claims thatstates, organisations and individuals are not given actors, but socially constructedunits of a rationalised global culture of world society. According to Meyer andScott, world society consists of three mechanisms: first, world society hasbecome an emergent collective order of self-conscious world-level organisationsand associations such as the United Nations system. Second, an evolving worldsociety means that regional, national and local collective actors link up acrossthe world and therefore have similar goals, ideological resources and formalstructures:

Part of the power of world society in this sense lies in the fact that so manysubunit actors—from individuals to organizations to nation-states—legit-imate themselves in terms of universalistic rationalized ideas (e.g., aboutthe law of national development, of scientific technology, of human rights,and so on).4

Third, world society also refers to a spreading network of interaction andcommunication between different actors across global, national or local levels.

As there is no single world authority, world society reproduces itself as a ration-alised environment that provides actors with legitimacy with regard to their goalsand the instruments they use to fulfil these goals. In other words, if actors want tobe perceived as legitimate, with recognised goals, they have to link themselves toworld cultural models of proper actorhood.5 Actors derive their agency and theiridentity from adopting globally institutionalised models and patterns of properactorhood. The sovereignty of a state goes back, therefore, to a globally institutio-nalised script about how a state should behave and presents itself in order to beperceived as a sovereign member of the international society.6 Hence worldpolity research stresses the importance of world cultural models for localconditions and development:

Worldwide models define and legitimate agendas for local action,shaping the structures and policies of nation-states and other nationaland local actors in virtually all of the domains of rationalized sociallife—business, politics, education, medicine, science, even family and reli-gion. The institutionalization of world models helps explain manypuzzling features of contemporary national societies, such as structuralisomorphism in the face of enormous differences in resources andtraditions, ritualized and rather loosely coupled organizational efforts,

3. This is not to test the theory on a single case, but to try to explore a case using a theory that focuseson exogenous rather than on endogenous factors. The underlying assumption here is that the inventionof transitional justice in Cambodia cannot be sufficiently explained by domestic, Cambodian factors.

4. John W. Meyer and W. Richard Scott, Institutional Environments and Organizations: Structural Com-plexity and Individualism (Thousand Oaks, CA: Sage, 1994), p. 42.

5. For that term see David John Frank and John W. Meyer, “The Profusion of Individual Roles andIdentities in the Postwar Period”, Sociological Theory, Vol. 20, No. 1 (2002), pp. 86–105.

6. We refer here to the term international society as it is used by the English School of InternationalRelations describing the world of states integrated by shared norms. See Barry Buzan, From Inter-

national to World Society? English School Theory and the Social Structure of Globalisation (Cambridge: Cam-bridge University Press, 2004).

Transitional Justice and Victim Participation 115

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and elaborate structuration to serve purposes that are largely ofexogenous origin.7

The whole concept derives from the need to explain empirical evidence thatshows a striking structural homology across countries (in education, women’srights, social security programmes, environmental policy, constitutional arrange-ments).8 At least at the formal level, different states, organisations and individualsare using the same concepts and share the same ideas about their internal struc-ture, behaviour and constitution, regardless of their embeddings in different scen-arios and local traditions. In this regard, a “structural isomorphism”9 can beobserved.

The phenomenon of structural isomorphism stresses the paradoxical characterof adopting these norms even more. In fact, world polity theory points out thatthis tends to lead to a gap between formal adoption and actual behaviour. Offi-cially, actors implement norms, guidelines and institutions but seem to deterthem in daily praxis: “Imported formal structures remain rather exogenous andremoved from actual practice.”10 This may be the source of conflict, whenglobal civil society, being one of the major driving forces to push norms and insti-tutions to the world polity level,11 advocates factual institutionalisation, whereasstates are more likely to maintain the facade of formal adoption.12

Thus, the institutionalisation of world polity seems to be rather irrational andinefficient, increasing the paradox of the diffusion of a world culture, whose pro-minent content is occidental rationalism.13 However, by drawing on the model ofbureaucracy by Max Weber, neo-institutionalists have pointed out that while effi-ciency and legitimacy are utterly intertwined in Weber’s concept, the formerbecomes a mere myth when considered at the global level.14 What remains isthe generation of legitimacy. Whether or not these Western culture-based insti-tutions really serve as efficient and rational scripts is therefore unimportant, aslong as they are considered to be. Their power is derived from two things. First,the symbolic standing must be seen as the implementation of rational acting.

7. John Boli, John W. Meyer, Francisco O. Ramirez and George M. Thomas, “World Society and theNation State”, American Journal of Sociology, Vol. 103, No. 1 (1997), p. 145.

8. See John Boli and George M. Thomas, “World Culture in the World Polity: A Century of Inter-national Non-governmental Organization”, American Sociological Review, Vol. 62, No. 2 (1997), p. 172.

9. Boli et al., op. cit., p. 145.

10. Georg Krucken, “Einleitung”, in John W. Meyer (ed.), Weltkultur: Wie die westlichen Prinzipien dieWelt durchdringen (Frankfurt am Main: Suhrkamp, 2005), p. 13 (authors’ translation).

11. See John Boli and George M. Thomas (eds), Constructing World Culture: International Nongovern-mental Organizations since 1875: International Nongovernmental Organizations since 1875 (Stanford: Stan-ford University Press, 1999).

12. See, for example, studies on the impact that global and local civil society has on states regardinghuman rights implementation: Thomas Risse, Stephen C. Ropp and Kathryn Sikkink (eds), The Power ofHuman Rights: International Norms and Domestic Change (Cambridge: Cambridge University Press, 1999);Thomas Risse, “Transnational Actors and World Politics”, in Walter Carlsnaes, Thomas Risse and BethA. Simmons (eds), Handbook of International Relations (London: Sage, 2002), pp. 255–274.

13. See Krucken, op. cit., p. 9.

14. See Raimund Hasse and Georg Krucken, Neo-institutionalismus (Bielefeld: Transcript, 1999), p. 13;Julian Dierkes and Matthias Konig, “Zur Ambivalenz der universalistischen Weltkultur—Konfliktbear-beitung und Konfliktdynamik aus Sicht des neuen soziologischen Institutionalismus”, in ThorstenBonacker and Christoph Weller (eds), Konflikte der Weltgesellschaft: Akteure—Strukturen—Dynamiken(Frankfurt am Main: Campus, 2006), p. 131.


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When talking about “taken-for-granted” norms and institutions, the legitimacyseems to be absolute, since alternatives to them are difficult, if not impossible,to conceive of (e.g. the rarely contested concept of the nation-state). Even lesserestablished elements of world polity can rely on their status as being the morelegitimate institutions. Second, according to world polity theory, states usuallycare about their image; they want to be perceived as “proper” states that followthe general expectations of world society. Therefore they adopt models andnorms of world polity, which include, for example, models of how to deal withpast human rights violations.

According to world polity theory those models are distributed by internationalorganisations (IOs) and international non-governmental organisations (INGOs)that function as world society’s “generalised others” and at the same time symbo-lise the normative framework of a rationalised environment. Therefore, IOs andINGOs do not play the role of actors in the first place, but they “instruct andguide putatively self-interested actors in the widest variety of matters: how toorganize the good society, how to live safely and effectively in the naturalworld, how to respect the human members of society, and so on and on”.15

They provide national, organisational and individual actors with depictions oftheir roles and identities, and recipes for activity routines that make sense interms of other actors’ expectations. According to Meyer, these generalisedothers could also be described as “rationalised others” because they developand distribute expanded rationalistic ideas of developing rights, powers,actions, and responsibilities of individuals, organisations and nation-states.

If we want to explain national policy changes, for instance concerning the waysin which a nation-state deals with past atrocities, we have to consider the insti-tutional changes in the world polity. One such major change is the institutionali-sation of universalistic human rights and, as a consequence, the shift in thecultural content of the nation-state in the second half of the 20th century:

The global institutionalization of human rights has occurred, mostnotably, through their incorporation into the body of internationallaw. Given its inherent formalism and universalism, law is a particu-larly well-suited medium for constructing cultural frames of rationality[. . .]16

As Koenig argues, the juridification of human rights in international law has struc-turally altered the relationship between states and individuals. On the one hand,human rights have strengthened state authority in that they provide governmentswith more opportunities to strengthen their sense of legitimacy.17 On the otherhand:

the international juridification of human rights entails a far-reachingdevolution of authority—and charisma—from the state to the individual.

15. Meyer and Scott, op. cit., p. 47.

16. Matthias Koenig, “Institutional Change in the World Polity: International Human Rights and theConstruction of Collective Identities”, International Sociology, Vol. 23, No. 1 (2008), p. 99.

17. See also Emilie Marie Hafner-Burton and Kiyoteru Tsutsui, “Human Rights Practices in a Globa-lizing World: The Paradox of Empty Promises”, American Journal of Sociology, Vol. 110, No. 5 (2005),pp. 1373–1411.


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It is not only as citizens, but also as members of the imagined communityof humankind, that individuals are assigned legitimate agency and enjoyrights.18

This altered cultural notion of nation-states, from an imagined community of citi-zens to a provider of universal human needs and rights, was developed and dis-tributed by rationalised others like international human rights non-governmentalorganisations (NGOs), most of whom were located within the United Nationssystem.19

Transitional Justice as World Polity

Transitional justice can be seen as resulting from the reconfiguration of therelationship between the state and the individual at the global level. Many scho-lars have pointed out that transitional justice, as a multi-faceted approach offeringways to deal with past atrocities, is a consequence of the institutionalisation of atransnational human rights regime, which has, over time, become “a well estab-lished fixture on the global terrain of human rights”.20 According toRoht-Arrazia,21 transitional justice could be defined as a set of practices, mechan-isms and concerns that arise following a period of conflict, civil strife or dictator-ship, and that are aimed directly at confronting and dealing with past violations ofhuman rights and humanitarian law. Thus, transitional justice is based fundamen-tally on the normative idea that the “engagement with human rights violations iscentral”.22 The whole concept rests upon the assumption that coming to termswith the past, instead of burying it, is the right thing to do, making the pastsomehow controllable by classifying and arranging the facts through researchand (extra)juridical investigation.

Expectations for a state to deal with its past have continually evolved in worldsociety. The first systematic punitive approach emerged after the Second WorldWar with the creation of the tribunals in Nuremberg and Tokyo. The emergenceof this expectation that states deal with past human rights violations can also beseen in the “third wave of democratization”,23 when the post-communistcountries in Eastern Europe were compelled to deal with their past. Transitionaljustice played an essential role in transforming Eastern European societies intodemocracies, and its emergence as a global norm is therefore closely linked tothe process of transitioning from autocratic regimes to democracies. In the

18. Koenig, op. cit., p. 101.

19. See Thorsten Bonacker, “Inklusion und Integration durch Menschenrechte. Zur Evolution derWeltgesellschaft”, Zeitschrift fur Rechtssoziologie, Vol. 24, No. 2 (2003), pp. 121–139; Kathryn Sikkink,“Human Rights, Principled Issue-networks, and Sovereignty in Latin America”, International Organiz-

ation, Vol. 43, No. 2 (1993), pp. 411–441.

20. Rosemary Nagy, “Transitional Justice as Global Project: Critical Reflections”, Third World Quar-terly, Vol. 29, No. 2 (2008), p. 275.

21. See Naomi Roht-Arrazia and Javier Mariezcurrena (eds.), Transitional Justice in the Twenty-firstCentury: Beyond Truth versus Justice (Cambridge: Cambridge University Press, 2006).

22. Undine Kayser-Whande and Stephanie Schell-Faucon, “Transitional Justice and Civilian ConflictTransformation. Current Research, Future Questions”, CCS Working Papers, No. 10 (2009), p. 8.

23. Samuel Huntington, The Third Wave: Democratization in the Late Twentieth Century (Norman, OK:University of Oklahoma Press, 1993).


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1980s, transitional justice was mostly seen as just a domestic answer to the ques-tion of how to deal with a problematic history. After being instituted on such alarge scale in post-communist Eastern Europe, however, transitional justiceprocesses were “normalised” as a global model for dealing with past atrocitiesrelated to human rights discourse. International criminal law and other civilsociety approaches to addressing historical problems were also present to someextent from the very beginning, although not as extensive as they are today.Both strategies went hand-in-hand with (more or less successful) attempts tocover up the past by ignoring it. However, in the present climate, states areunable to ignore the expectations of them that past human rights violations andother forms of macro-criminality be addressed.24 These expectations were formu-lated by IOs as well as global and national civil society. Since the 1990s, the term“transitional justice” has been commonly used to label approaches, both judicialand non-judicial, that deal with the past, and thereby strengthen peace in post-conflict societies.25 It is based on global norms and offers various methods forcoming to terms with macro-criminal wrongdoing, often perpetrated in times ofcivil war or under a dictatorship or autocratic regime. The most important judicialdevelopments since Nuremberg and Tokyo were the ad hoc tribunals in Rwandaand the former Yugoslavia, the Special Court for Sierra Leone, and the establish-ment of the International Criminal Court (ICC) in 2002. The various truth andreconciliation commissions in Latin America and South Africa also constitutedimportant steps in the development of transitional justice. The most recent devel-opment was the 2005 establishment of the Extraordinary Chambers in the Courtsof Cambodia (ECCC), often referred to as the Khmer Rouge Tribunal (KRT), whichwas given the task of dealing with the atrocities in Cambodia under the KhmerRouge from 1975 to 1979. This tribunal is of central concern for this paper.

It must be stressed that transitional justice, from a world polity perspective, isnot only about dealing with the problematic history of nations but also primarilyabout interpreting mass killings from the past, for example the Khmer Rouge’scrimes, as a violation of individual human rights. As a consequence of the insti-tutional change in the world polity concerning the development and the powerof the human right’s discourse at the global level, genocide and macro-criminalitycould no longer be interpreted as a collective fate, but as the violation of individualhuman rights. According to the human rights based model for dealing with thepast, states have to use different mechanisms to judge perpetrators and to discoverthe truth.

The global expectation to engage in transitional justice after mass crimes haveoccurred expresses the changed relationship between the state and the individualin world society. A state now has to deal with past human rights violationsbecause the state’s legitimacy is drawn from worldwide-distributed models of a

24. The term “macro-criminality” (Makrokriminalitat) refers to crimes of a certain scope and encom-passes, in Jagers notion, not only crimes against humanity, genocide and other mass human rights vio-lations but all forms of collective violence inconceivable as an individual, isolated crime but instead as acollective action that cannot be separated into special frames and contexts. We use the term here simplyto encompass all forms of state-driven collective violence. For more see Herbert Jager, Makrokriminalitat.Studien zur Kriminologie kollektiver Gewalt (Frankfurt am Main: Suhrkamp, 1989).

25. For a critical discussion of this relationship between transitional justice and peace see ChandraLekha Sriram, “Justice as Peace? Liberal Peacebuilding and Strategies of Transitional Justice”, GlobalSociety, Vol. 21, No. 4 (2008), pp. 579–591.


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proper nation-state. The discourse on transitional justice and rationalised others,such as the International Center for Transitional Justice, provides states and otherrelevant actors in the field with an instruction manual for dealing with past atro-cities; a toolbox has been provided to help fulfil the norm. This toolbox consists oftruth and reconciliation commissions, ad hoc/hybrid/international tribunals,reparations, memory and trauma work, security sector reform, etc. While all ofthese tools provide different means of pursuing “justice”, it is clear that actionsmust be coupled with these if justice, as an end, is to be achieved.

Besides the need for justice, “transition” is the other aspect of the termdiscussed. Although it is sometimes (purposely) defined rather vaguely, it mostoften implies a transition to a liberal Western democracy.26 In other words, anapproach to dealing with the past will be perceived as legitimate by internationalsociety only if it is linked to a transition to democracy.

The existence of many alternative scripts—sometimes adding up, sometimescontingent, sometimes mutually exclusive—demonstrates how transitionaljustice has developed as a global, but simultaneously contested, concept. Insti-tutions have continually evolved: at first the whole concept was based solely onlegal responses, which were contested over time, as more and more additions,exceptions, and alternatives challenged the orthodox juridical solution.27

The historical evolution of transitional justice at the global level was interruptedby Cold War politics, as mentioned above. The Cold War was not only a compe-tition between the two post-Second World War superpowers to increase theirpower and influence but was also a struggle between two rival interpretationsof world order, or, world polity. Contradictions and incompatible demands onactors are central to the make-up of world polity,28 but in the clash of ideologiesduring the Cold War era this reached a completely new level. It was not a conflictarising from a single contradiction in world polity but rather from differentinterpretations of a world polity framework.

Transitional Justice in Cambodia

Transitional Justice during the Cold War

Between 1975 and 1979 the Pol Pot regime of so-called “Democratic Kampuchea”(the official Khmer Rouge name for Cambodia ) killed approximately 1.7 millionpeople. They were either killed directly through mass murder (targeting perceivedethnic, political and religious enemies of the new regime) or indirectly, due to thevery harsh life conditions inflicted on the whole population (death through star-vation, overwork, malnutrition and poor medical conditions).29 The mass killings

26. See Sanam Naraghi Anderlini, Camille Pampell Conaway and Lisa Kays, “Transitional Justiceand Reconciliation”, in Inclusive Security, Sustainable Peace: A Toolkit for Advocacy and Action (Londonand Washington, DC: International Alert & Women Waging Peace, 2004); Bronwyn Anne Leebaw,“The Irreconcilable Goals of Transitional Justice”, Human Rights Quarterly, Vol. 30, No. 1 (2008),pp. 95–118.

27. See, for example, Kayser-Whande and Schell-Faucon, op. cit.; Tuti G. Teitel, “Transitional JusticeGenealogy”, Harvard Human Rights Journal, Vol. 16, No. 1 (2003), pp. 69–94.

28. See Krucken, op. cit., pp. 12–13.

29. For detailed accounts see Karl D. Jackson (ed.), Cambodia 1975–1978. Rendezvous with Death (Prin-ceton, NJ: Princeton University Press, 1989); Ben Kiernan, The Pol Pot Regime. Race, Power, and Genocidein Cambodia under the Khmer Rouge, 1975–79, 3rd edn (New Haven, CT: Yale University Press, 2008).


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ended and the regime broke down after the military intervention by Vietnam in1979.

This was, however, directly followed by a civil war (mainly between the rem-nants of the Khmer Rouge, other anti-Vietnamese forces and the Vietnameseand their Cambodian allies), which was finally ended in 1991 by the Paris PeaceAgreement. The current Cambodian transitional justice process started in 1997,when a letter from the Cambodian government to the United Nations introducednegotiations about a special tribunal for the Khmer Rouge perpetrators. However,it was not the first attempt to introduce transitional justice measures to thecountry. In fact, some were established immediately after the regime was over-thrown in 1979 and despite the civil war, although they have to be seen in thelight of Cold War politics. As Ciorciari argues:

the onset of the Cold War greatly diminished the feasibility of puttingalleged human rights violators on trial [. . .] Perceived strategic impera-tives generally outweighed concerns for international justice, and eventhe most heinous regimes often secured political and military protectionby aligning with one of the superpowers. The United Nations oftenfound itself crippled by a divided Security Council, and internationalcriminal law lost much of its post war momentum.30

The Cold War hindered transitional justice in Cambodia and around the world,but also had a devastating effect on Cambodia’s internal politics, transformingthe regime change into a civil war, in which both sides were supported by oppos-ing world powers.

The result was a soviet-style tribunal fashioned by the USSR-allied Vietnameseoccupying force and the new government they installed in Cambodia. With thepassage of Decree Law No. 1 on 15 July 1979, only six months after the fall ofPol Pot, the basis for trials of representatives of the Khmer Rouge regime was estab-lished. Both Pol Pot and Ieng Sary were charged (in absentia) with genocide againstthe Cambodian population before the People’s Revolutionary Tribunal.31 Accord-ing to Article 1 of the “Decree Law No. 1”, establishing the tribunal, it was to havejurisdiction over “the acts of genocide committed by the Pol Pot–Ieng Sary clique.Since neither rule-of-law standards of a fair trial nor the norms of internationalhumanitarian law that were developed between the beginning of the 20thcentury and the start of the Cold War had been respected, it is not surprisingthat Western countries did not perceive the Cambodian approach to transitionaljustice at this time as legitimate. Accordingly, neither did the international commu-nity 20 years later. As Sidney Jones, Executive Director of the Asia Division ofHuman Rights Watch, argued in 1999: “Any tribunal should be held under strictU.N. control [. . .] The Cambodian people deserve justice, not a show trial. Cambo-dia has already had one of those, after the Khmer Rouge fell from power in 1979.”32

Nonetheless, the behaviour of the new political power in Cambodia at that time ishardly surprising, as the Western powers and politics could not serve as a frame of

30. John D. Ciorciari, The Khmer Rouge Tribunal (Phnom Penh: DC-Cam, 2006), pp. 15–16.

31. See Howard J. De Nike, John Quigley and Kenneth J. Robinson, Genocide in Cambodia: Documents

from the Trial of Pol Pot and Ieng Sary (Philadelphia: University of Pennsylvania Press, 2000).

32. Human Rights Watch, 24 August 1999, available: ,http://www.hrw.org/en/news/1999/08/24/un-should-insist-international-standards-khmer-rouge-trial. (accessed 9 June 2010).


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http://cambodiatribunal.org


reference for the allies of the Soviet Empire throughout the stalemate of the ColdWar. In contrast to the post-dictatorship transitional justice in Latin America, Cam-bodia was not on the way to democracy, and used the trial as an instrument to gen-erate legitimacy for the new autocratic regime. There were also actions that can beassociated with the politics of the memory-element of transitional justice. The infa-mous torture prison of the Khmer Rouge, Tuol Sleng (aka S-21) in Phnom Penh, aswell as the notorious Killing Fields, were turned into memorial sites to commem-orate the atrocities of the Khmer Rouge regime. While it would be unfair to limitthese top-down introduced measures as acts of propaganda for the new regime,they certainly were also means to underline its legitimacy.

The UNTAC Period

The Paris Peace Agreement of 1991 marked the first clear break in the trend of vio-lence and terror in Cambodia. It envisioned a ceasefire and, above all, a generalmilitary demobilisation, but issues of justice and genuine reconciliation werestill absent:

It seems that “reconciliation” was considered synonymous with the invol-vement of the four factions in a free and fair election. For the Cambodianpeople at that time, however, reconciliation was largely equated with thecessation of hostilities and the return of refugees. More complex questionsof justice and reintegration were yet to become apparent.33

Although questions of justice and dealing with the hardships and atrocities of thepast were already present in the background, the hangover of the Cold War stillfactored prominently in Cambodia. Outside of the country, many states (e.g. theUnited States, China, the United Kingdom) were not eager to place these issueson the agenda, due to fears that their involvement in both civil wars (beforeand after Khmer Rouge rule) would be questioned, too.

With the help of the United Nations (namely the United Nations TransitionalAuthority in Cambodia, UNTAC), the first democratic election in more thantwo decades34 was organised and a constituent assembly was established/founded. The engagement of the revitalised international organisation reflectedthe trend of post-Cold War liberal peace, the supposed “end of history”,35 andarguably heralded a new state-building role for the UN.36 Reviewed in the lightof the current discussion on peacebuilding and transitional justice,37 the linkbetween these two concepts becomes apparent in the case of Cambodia. The

33. Vannath Chea, “Reconciliation in Cambodia: Politics, Culture and Religion”, in David Bloom-field, Teresa Barnes and Luc Huyse (eds), Reconciliation after Violent Conflict (Stockholm: InternationalInstitute for Democracy and Electoral Assistance, 2003), p. 50.

34. The last elections were held in 1966. Although they can still be considered to be free elections,they involved massive repression against leftist parties.

35. Francis Fukuyama, The End of History and the Last Man (New York: Free Press, 1992).

36. Jason Franks and Oliver P. Richmond, “Liberal Hubris? Virtual Peace in Cambodia”, Security Dia-logue, Vol. 31, No. 1 (2007), p. 28. Cambodia was one of the first state-building missions of the UnitedNations, followed by many others (e.g. the UN administrations in Bosnia, Kosovo, and East Timor).

37. See, for example, Sriram, op. cit.; Edward Newman, Roland Paris and Oliver P. Richmond (eds),New Perspectives on Liberal Peacebuilding (New York: United Nations University Press, 2009).


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emphasis on peace with reference to reconciliation and the aim of establishingliberal democracy, which is also dominant in the subsequent phase of transitionaljustice (creating the rule of law), are clearly indicators of a strong interaction. So,for the review of the process in Cambodia from the macro level, it is important tomaintain the continuity of the aims of the peacebuilding intervention and the pos-itions of the international stakeholders in the ensuing phase(s) of transitionaljustice.

Although the UNTAC intervention can, on the whole, be considered an initialsuccess, further developments in Cambodia in the 1990s were to hinder theresults that had thus far been achieved. Voter turnout during the 1993 electionswas unexpectedly high (90%), which was understood to be a clear signal of abroad desire for a new social orientation. Notwithstanding, the elections led toa political stalemate between the royal FUNCINPEC Party38 and the CambodianPeople’s Party (CPP), the renamed party that had been installed by the Vietnameseafter 1979. Additionally, the Khmer Rouge, armed and still holding out in strong-holds close to the border with Thailand, continued to be a threat. The turningpoint came in 1997/98, when a violent two-day struggle between the formerlyco-operative royalist and post-communist parties led to the emergence of theCPP as the leading party and made it possible for Hun Sen to become the soleprime minister in Cambodia. Also significant was Pol Pot’s death in 1998, afterwhich the Khmer Rouge ceased to exist as an effective force as a result of thedefection of some leaders and the disarmament of others.

Throughout this period, another important development for the eventual emer-gence of transitional justice occurred. It was during this time, with massive inter-national direct and indirect intervention, that the foundations for a civil societywere laid. Most of the later prominent NGOs, which acted as advocates for transi-tional justice, were founded during this period.39 In summary, with regards totransitional justice, the UNTAC period featured a political situation that did notyet allow Cambodia to deal with its past atrocities. Nonetheless, events in the1990s laid the foundations for what was to come.

Negotiating a Tribunal

So, almost 20 years passed after the end of the regime before a joint internationaland Cambodian transitional justice effort began in 1997. In addition to the afore-mentioned obstacles of the Cold War, the affiliated internal struggles in Cambodiaand the lack of a transition to democracy, other problems were to be faced.40 But,as former appointed representative to the UN Secretary General for human rights

38. Front Uni National pour un Cambodge Independant, Neutre, Pacifique, et Cooperatif.

39. The most important Cambodian NGOs in the field of transitional justice and their founding datesare (in no particular order): Documentation Center of Cambodia (DC-Cam, est. 1995), CambodianHuman Rights and Development Association (ADHOC, est. 1991), Cambodian Human RightsAction Committee (CHRAC, est. 1994), Center for Social Development (CSD, est. 1995), Khmer Institutefor Democracy (KID, est.1992), Youth for Peace (YfP, est. 1999) and the Women’s Media Center (WMC,est. 1993).

40. See also David Roberts, “The Superficiality of Statebuilding in Cambodia: Patronage and Clien-telism as Enduring Forms of Politics”, in Roland Paris and Timothy D. Sisk (eds), The Dilemmas of

Statebuilding: Confronting the Contradictions of Postwar Peace Operations (London: Routledge, 2009),pp. 149–171.


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in Cambodia (SRSG) Thomas Hammarberg stated: “[. . .] it became obvious that itwould no longer be possible to avoid a real discussion about justice—and aboutinternational standards”.41 Outside Cambodia the post-Cold War revival of tran-sitional justice had already begun and resulted in the tribunals on the genocide inRwanda and the atrocities in the former Yugoslavia as well as truth commissionsin several countries across the globe. The question now was not whether or nottransitional justice measures were to be introduced, but rather how they shouldbe implemented. The discussion revolved around accusations of human rightsviolations. On the one hand, the Cambodian government was accused of notbeing able to ensure a fair and proper trial on its own, and the country’s humanrights situation in general was widely criticised. On the other, permanentmember states of the UN Security Council, most prominently China and theUnited States, were criticised for having backed the Khmer Rouge until 1991,even though the atrocities were common knowledge, and for having played apart in bringing the communist insurgents to power in the first place. Thus, theECCC can be seen as the result of prolonged, complex negotiations between theUnited Nations and the Cambodian government. The former was focusing onthe new possibilities of peacebuilding through its rediscovered, empowered rolein the post-Cold War order. The latter was mostly concerned with holding on toits hard-earned stability, of the country as such, but also as the ruling party inCambodia. Whilst the United Nations considered the Cambodian judges to begenerally corrupt and politicised, they failed to recognise the devastating effectsthe Khmer Rouge policy of annihilation had had on the Cambodian intelligentsia,and thereby on the availability of esteemed judges.42 At the same time, theCambodian government seemed to be more interested in presenting a facade ofdealing with past atrocities in order to satisfy the demands of civil society andthe international community, rather than working for an in-depth justice andreconciliation process. In order to maintain their power and the stability of thecountry, they had almost cordially greeted Khmer Rouge defectors over theyears. Had it not been for international pressure throughout the negotiationprocess of the tribunal, the perpetrators of the regime most probably wouldhave never been arrested. The process had, however, already gained too muchmomentum. While problems continued to arise in the negotiations, until 2006, itwas clear that both sides would lose legitimacy if the process was abandoned.Thus, the question for both sides was rather how to respectively design the tribu-nal in order to get the most out of it. On the UN side, it was the legitimacy vis-a-visthe international community that was of vital importance. This was also relevantfor the Cambodian side, but it also had to look at securing its internal legitimacy,as well as facing the possibility of losing power through the potential resultinginstability. While all parties did come to an agreement on the design and structureof a tribunal in 2003, it took several more years to work out how it would befunded. In 2006, the court was finally able to start working in a newly built mili-tary compound outside Phnom Penh.

41. Thomas Hammarberg, How the Khmer Rouge Tribunal was Agreed: Discussions between the Cambo-

dian Government and the UN (Phnom Penh: Documentation Center of Cambodia, 2001), available:,http://www.dccam.org/Tribunal/Analysis/How_Khmer_Rouge_Tribunal.htm. (accessed 1April 2009).

42. See Kathryn E. Neilson, They Killed all the Lawyers: Rebuilding the Judicial System in Cambodia (Vic-toria, BC: Centre for Asia-Pacific Initiatives, 1996), p. 1.


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As transitional justice re-emerged as an element of world polity after the ColdWar, and first and foremost in the context of the post-communist transitions,43 theCambodian government was faced with the task of dealing with its past again if itwanted to become better integrated into international society. Despite its powerpolitics, Hun Sen’s ruling CPP certainly did not want to pursue an isolationistpolicy like that of North Korea, and it arguably saw the new transitional justiceprocesses as a way to present itself to the Cambodian people as the partycapable of bringing justice and condemning the past atrocities. The remarks ofthe Cambodian government on transitional justice are contradictory. Prime Min-ister Hun Sen first stated at the 1995 conference on genocide justice in PhnomPenh that “this is not about politics, it is about justice”, and then three yearslater said that “Cambodia should ‘dig a hole and bury the past’”.44 Consideredfrom an internal affairs perspective, transitional justice was walking a fine linebetween enhancing internal legitimacy and decreasing political stability, whileat the same time risking the strong and powerful position the CPP had obtained.With regards to the international side, the way was clear: if the Cambodian gov-ernment wanted to sanitise its image and further its integration into internationalsociety, it had to start with transitional justice. This was the world polity insti-tution relevant to the post-conflict state of Cambodia and the obvious way forCambodia to increase its legitimacy.45

Central Elements of Current Transitional Justice in Cambodia

There are several significant points about the transitional justice process inCambodia that have become clear. First, it focused on solutions offered by inter-national criminal law; other approaches remained largely unexplored. Second, itwas perceived as legitimate only at the point when Cambodia presented itselfas being on the way towards democracy and was therefore accepted as part ofthe post-Cold War international community.46 Third, the shift to a more appropri-ate model of transitional justice according to the international community can onlybe understood in the context of changes in the global environment. Here, global

43. Of course, transitional justice processes after the end of the dictatorships in Latin America (start-ing in the 1970s) and the apartheid regime in South Africa (in the 1990s) are prominent exemptions tothe post-communist notion. However, it seems that their impact on transitional justice at a world politylevel was time-delayed.

44. Craig Etcheson, “A ‘Fair and Public Trial’: A Political History of the Extraordinary Chambers”, inStephen Humphreys and David Berry (eds), The Extraordinary Chambers (New York: Justice Initiatives,2006), p. 7.

45. Of course, there are other elements of world polity through which states gain legitimacy, forexample adopting liberal democracy and a free-market economic approach/capitalism. The point isthat the “presence” and proximity of the mass crimes of the past in Cambodia make transitionaljustice an obvious choice.

46. We are referring here to the official self-description of the Cambodian state and also pointing tothe gap between self-description as democratic on the one hand, and the clientelistic “reality” on theother (for the latter see Oliver Hensengerth, Transitions of Cambodia: War and Peace, 1954 to thePresent, Project Working Paper No. 2 (Duisburg: INEF, 2008), available: ,http://www.postwar-violence.de/files/wp2_cambodia_transitions.pdf. (accessed 9 June 2010)). Our point here is that asymbolic commitment to democratic values and human rights by adopting the institutionalisedmodels of the nation-state at the global level opens the way for civil society to make claims onseveral topics related to the notion of a democratic state (e.g. a woman’s right to increase her qualityof life).


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and domestic civil society played an important role in distributing globally insti-tutionalised transitional justice norms at the local level. Domestic civil societyactors, such as the Documentation Centre of Cambodia (DC-Cam) in co-operationwith American universities, had already begun to study transitional justice andproper strategies for dealing with the past. The seeds of civil society had growninto significant organisations, and they started lobbying for a policy of justiceand reconciliation. During the time it took to set up the tribunal, more andmore international and national NGOs became involved in the process. Mostwere focused on the court, providing outreach and additional aid, such astrauma work and training of court personnel. Especially in regards to outreach,it was joint efforts by various NGOs, not the ECCC, that did the job in the firstplace. The NGOs constantly worked to promote and advance the process,despite ignorance of their actions by the Cambodian government and theUnited Nations.47 One example of their work is a petition signed by 84,195 Cam-bodians handed over in 1999 to the United Nations by the Cambodian HumanRights Action Committee (CHRAC),48 demanding the establishment of a properinternational tribunal established according to standards of international law.49

Another example is the joint effort by various civil society actors, in 2002, to influ-ence negotiations when it was feared that too many concessions would be made tothe Cambodian government, which may have counteracted the ideal of fair andproper trials.50

As stated above, the actual impact of world polity might seem lacking wheninstitutions are only introduced in a formal way and not a factual one. This isevident in the case of Cambodia. Since there was no way to avoid coming toterms with the past, the goal was to proceed with caution and do as little as necess-ary. It is not a coincidence that the court is located several miles outside the city,thus denying easy access to the public. The negotiation process about the tribunalwas all about the conflict between the facade and the implementation of worldpolity. Once again it was civil society and IOs that played the role of advocatesof human rights and broader approaches to justice. Because of these organisations,the Cambodian government’s concerns that its power would be contested throughimplementing transitional justice measures came to pass. It is another example ofhow transitional justice offers an opportunity for civil society and IOs to increasetheir pressure and influence on domestic politics.

Individual questions about guilt and the search for the truth were of primaryconcern in Cambodia. Identified victim groups, and their representatives, areexplicitly addressed in the Cambodian transitional justice process. The court

47. See Suzannah Linton, Reconciliation in Cambodia (Phnom Penh: Documentation Center of Cambo-dia, 2006), available: ,http://dccam.org/Publication/Monographs/Reconciliation.pdf. (accessed 9June 2010), p. 59. However, this changed over time. With the establishment of the court, co-operationbetween NGOs and the court became institutionalised and mutually beneficial. For an overview of thecurrent state of this relationship see Wendy Lambourne, “Outreach, Inreach and Local Ownershipof Transitional Justice: Cambodian Participation in the Khmer Rouge Tribunal”, Paper presented atthe annual meeting of “Theory vs. Policy? Connecting Scholars and Practitioners”, New Orleans,2010, available: ,http://www.allacademic.com/meta/p_mla_apa_research_citation/4/1/4/7/7/p414779_index.html. (accessed 9 June 2010).

48. CHRAC is an umbrella organisation of various Cambodian human rights NGOs.

49. See Wendy Lambourne, “Transitional Justice and Peacebuilding after Mass Violence”, Inter-national Journal of Transitional Justice, Vol. 3, No. 1 (2009), p. 38.

50. See Linton, op. cit., p. 55.


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http://www.allacademic.com/meta/p_mla_apa_research_citation/4/1/4/7/7/p414779_index.html

http://www.allacademic.com/meta/p_mla_apa_research_citation/4/1/4/7/7/p414779_index.html

reflects state-of-the-art transitional justice in that it combines aspects of retributiveand restorative justice. Taking on the new role stipulated in the Statute of Rome,constituting the ICC, and in combination with the national, French-based law,victims are allowed to appear as civil parties during the legal process and file com-plaints. A victims unit was formally established at the ECCC, and although itslegal implementation was not properly regulated in the statute of the court,Cambodian criminal procedure was amended in August 2007 to solve theproblem.51

Civil parties have far-reaching rights in the court:

The Internal Rules of the ECCC provide for the participation of victims ofthe Khmer Rouge regime in the proceedings as civil parties. They allowvictims to play an active role in the trials, including all proceduralrights. The rights of Civil Parties are comparable to those of theaccused, and include the rights to participate in the investigation, to berepresented by a lawyer, to call witnesses and question the accused attrial, and to claim reparations for the harm they suffered.52

The level of victim participation at the ECCC is unparalleled in inter-national criminal law: “The participation of legal representatives ofvictims of the Khmer Rouge crimes in the ECCC proceedings is con-sidered to be a historic day in international criminal law. To date, no inter-national or hybrid tribunal mandated to investigate war crimes, crimesagainst humanity or genocide has involved victims as civil parties,giving them full procedural rights.”53

Being provided with almost no funding and treated as an insignificant addition tothe office of co-prosecutors, the work of the victims unit proved to be difficult. Inthe beginning, much of the work was enabled and completed through the effortsof civil society. Fearing that the entire concept of victim participation would fallapart, NGOs such as DC-Cam and CHRAC instituted outreach programmes,which distributed Victim Participation Forms and educated the populationabout victims’ rights at the ECCC. CHRAC stated in a 2008 Press Release:

During the last months, CHRAC member organizations such as theCambodian Human Rights and Development Association (ADHOC),the Center for Social Development (CSD) and the Khmer Institute ofDemocracy (KID), have assisted victims of the Khmer Rouge regime tofile complaints before the Court. Many of these victims have shown inter-est to participate directly as civil parties in the proceedings.54

51. See Silke Studzinsky, “Nebenklage vor den Extraordinary Chambers of the Courts of Cambodia(ECCC)—Herausforderung und Chance oder mission impossible?”, Zeitschrift fur internationale Stra-frechtsdogmatik, Vol. 4, No. 1 (2009), p. 45.

52. Statement by the Victims Unit, 4 February 2008, available: ,http://www.cambodiatribunal.org/CTM/Victim_Unit_Press_Release.pdf?phpMyAdmin=8319ad34ce0db941ff04d8c788f6365e&phpMyAdmin=ou7lpwtyV9avP1XmRZP6FzDQzg3. (accessed 10 April 2010).

53. Ibid.

54. Cambodian Human Rights Action Committee (2008), available: ,http://www.chrac.org/eng/pdf/02_04_2008_CHRAC%20Press%20Release%20on%20First%20Victims%20Join%20in%20ECCC%20PTC%20Hearing.pdf. (accessed 10 April 2010).


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Considering the history and current shape of transitional justice in Cambodia, weasked the question: why did the Cambodian government, after facing constantcriticism from the international community for its Cold War-era policies, decideto try transitional justice again, 20 years after the crimes were committed? Or, inHammarberg’s words: why was transitional justice suddenly inevitable? Our argu-mentation here was twofold: first, Cambodia wanted to increase its external legiti-macy and saw a chance to do so by adopting norms and standards of worldsociety (e.g. models of dealing with the past). Second, these models happenedto be distributed primarily by INGOs and Cambodian NGOs. In the end, thebest way for Cambodia to increase its legitimacy was by enlisting the help ofglobal and local civil society.

Cambodian Transitional Justice and Victim Participation

By applying the world polity theory, we can explain why the Cambodian govern-ment chose to undertake transitional justice measures. First, there was no legiti-mate alternative available to the Cambodian government apart from to definethe Khmer Rouge crimes as a violation of individual human rights; no longertreating it as a tragic anomaly of Cambodian history or as a consequence offoreign interventions. Second, Cambodia had to adopt transitional justice mechan-isms if the state was to present itself as a proper sovereign state in internationalsociety, despite the fact that 20 years had passed since the crimes had beencommitted. Under the auspices of the United Nation during the 1990s, beginningwith the UNTAC mission, Cambodia was extremely open to adopting modelsdeveloped by rationalised others in order to increase its legitimacy.

In light of our theoretical approach, the obvious similarities between theCambodian case and other examples of processes dealing with the past atrocitiesis not surprising. Structural isomorphism among varying case studies is also obser-vable in transitional justice. The concept of applying international criminal lawtraces back to the tribunals of Nuremberg and Tokyo, although the particulardesign of such courts (hybrid, ad hoc or solely international) has changed through-out history. Not a single aspect of transitional justice in Cambodia deviates from therange of applications offered in the broad concept, and no particularly traditional,organic or local approaches have been employed in Cambodia thus far.55

We have stated, however, that the implementation of victim participation is somethingnew, at least in its scope and range in Cambodia. This was made possible because ofthe French influences present in the Cambodian legal system (France being the formercolonial power), which provides for a special role for victims in court proceedings.This special victim participatory role was incorporated in the hybrid law (inter-national criminal law and Cambodian national criminal law) of the ECCC.Nonetheless, we argue that it, too, can be understood as a result of the developmentof world polity rather than as a special “Cambodian” strategy. To stress this point,we once again refer to the changing cultural content of the nation-state:

An older nation-state form, built around more autonomous sovereignty,often generated the simple limited bureaucratic state organized around

55. Again, this is not to say that local actors were not heavily involved (as we outlined above).However, the actions were all strongly influenced by world polity models, from, for example, forensicmethods of truth finding (understood as scientific fact finding) to outreach models.


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international competition. The little controlled flood of cultural others,operating at the world level in an expanded and fragmented way,changes the organizational situation. Nation-states come under pressureto assume expanded responsibilities for the widest array of socialdomains.56

This includes dealing with one’s own past and recognising victims symbolicallyand substantially. Rationalised, cultural others, in this case, are the actors ofglobal civil society and inter- and transnational organisations, who confrontstates with requirements for dealing with past atrocities and insist, in somecases, upon the payment of reparations. This was also the case in Cambodia. Inall stages of negotiation on the tribunal, and even after the court was set up,civil society organisations advocated their cause: working for increased humanrights standards and more respect for victims, always trying to capitalise on thepromises made and possibilities created by various agreements and the ECCC.Their advocacy certainly played a significantly large role in making transitionaljustice inevitable in Cambodia.

Not only is Cambodia once again engaged in transitional justice but it is alsodoing so with a strong focus on the individual victim through victim participation.Victim participation here refers to any formal involvement of victims in transi-tional justice proceedings that exceeds simple hearings as witnesses, but insteadgives them civil party or near-party status. The civil law system allows a victimto participate in the criminal proceedings, where the court can award reparationfor the victim. Influenced by the French civil law system, ECCC procedural lawis based upon Cambodian law. Under the Internal Rules of the ECCC, anyperson who suffered a physical, material, or psychological injury as a directconsequence of the offence is entitled to participate as a civil party. As civilparties, victims are entitled to participate in the criminal proceedings againstthe accused person. The participation comprises a full presence during the trialphase as well as the pre-trial phase when the case is being reviewed by theCo-Investigating Judges. According to the Internal Rules, civil parties have theright to choose a legal representative, to request the investigation of allegedcrimes, to question witnesses and the accused, to ask the court to take measuresto respect their safety, well being, dignity and privacy in the course of their partici-pation in the proceedings, and to request collective and moral reparations.57 Toexplain this enlargement of victim participation in transitional justice, oneneeds to concentrate on the changing cultural content of the nation-statethrough the diffusion of human rights. Transitional justice in general, andvictim participation in particular, must be recognised as elements of worldpolity, which are spread through the advocacy of INGOs, NGOs and IOs. In thecase of Cambodia we can see that transitional justice, on the one hand, refers tothe changing global model of the nation-state. This transformation process wasinitiated by cultural others, i.e. world polity actors. On the other hand, theimplementation of transitional justice in Cambodia (due to the adoption of

56. John W. Meyer, “The Changing Cultural Content of the Nation State”, in George Steinmetz (ed.),State/Culture: New Approaches to the State after the Cultural Turn: State Formation after the Cultural Turn

(Ithaca, NY: Cornell University Press, 1999), pp. 136–137.

57. For the current discussion see Michael Saliba, Civil Party Participation at ECCC: Overview, Cambo-dia Tribunal Monitor, available: ,http://cambodiatribunal.org. (accessed 9 June 2010).


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these models by the Cambodian state) created the opening for civil society tobecome a world polity actor, who were hence legitimatised by universalprinciples, such as human rights. Thus the invention of victim participation inCambodia can be seen as the result of world polity being advocated by globaland local civil society.

Victim participation consists not only of the legal institutionalised possibility forvictims to take part in the criminal proceedings of the ECCC (either by themselvesor through legal representation) but also of the empowerment of victims throughcivil society. Victim participation, as a new, central element of transitional justice,is itself the result of the institutionalisation of human rights at the global levelbecause:

[t]he right to participate in decisions which affect one’s life is both anelement of human dignity and the key to empowerment—the basis inwhich change can be achieved. As such, it is both a means to the enjoy-ment of human rights, and a human rights goal in itself.58

The transformation of the global model of the nation-state can also be understoodby viewing the alteration of transitional justice as a global norm. The emergence ofvictim participation corresponds to the institutionalisation of the individual as acentral instance of legitimacy. Throughout the evolution of the concept of transi-tional justice, a shift from a more state-based to a more individual-centred focuscan be observed. While the Chief Prosecutor of the Nuremberg Trial, RobertJackson, was able to say that the accused may not be sentenced as individuals,but merely as:

“living symbols” that represented “racial hatreds”, “fierce nationalisms”and the “arrogance and cruelty of power” [. . .] [c]ontemporary advocatesof international justice have advanced a very difficult rationale for indi-vidual guilt, arguing that it will serve to counteract collective blameand so advance reconciliation.59

The discussion about reparations shifted accordingly to focusing on individualsinstead of states. Furthermore, a strong and growing emphasis on the individualvictim, whose rights have been violated, as a subject of rights that transcend mem-bership of a particular political community, can be clearly seen. The fractional out-sourcing of national criminal prosecution to international bodies such as the ICC isanother example:

Indeed, the move back to international humanitarian law incorporates thecomplex relationship between the individual and the state as a legalscheme which enables the international community to hold a regime’s lea-dership accountable and condemn a systematic persecutory policy, evenoutside the relevant state. Further, this particular form of international

58. Kenny, as quoted in Patricia Lundy and Mark McGovern, “Whose Justice? Rethinking Transi-tional Justice from the Bottom Up”, Journal of Law and Society, Vol. 35, No. 2 (2008), p. 281.

59. Leebaw, op. cit., pp. 104–105.


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justice offers the potential for regime delegitimation that can support oreven instigate transition.60

This allows civil society to do politics in the name of the individual, not only thecitizen, and to pressure governments. Moreover, civil society groups unite indi-viduals across the borders of nation-states to denounce past or present humanrights violations.

This transformation of transitional justice into a global norm was the result of achange in the institutional environment. States now receive legitimacy fromworldwide assumptions about adequate state behaviour and the relationshipbetween the state and the individual. Frank and Meyer have pointed out howthe relationship changed after the Second World War: “In several respects,World War II and its aftermath sharply shifted the balance of legitimate actorhoodfrom nation-states to individuals in every type of polity, advancing the individualas the main element of reality and thus [the] primary repository of legitimate rolesand identities.”61 This institutionalised shift is best observed when the individualis transformed from the role of passive victim to that of the active demander, andthereby empowered in transitional justice processes. The old concept of the sover-eign state is transformed to a post-national model.62 While international law pri-marily implemented the rule of law in international relations in the first stages oftransitional justice, the focus today is increasingly on identifying individualvictims and, more importantly, empowering them. The latter is accomplishedlargely by civil society, thus spreading a certain legitimate, world polity modelof actorhood of the individual.

As a result, explanations of victim participation are playing a crucial role in thetransitional justice process in Cambodia, especially when compared to formerundertakings including the central importance of the institutional environmentof nation-states and the change in its cultural content. Hence, the emergence ofvictim participation can be understood as an element or result of world polity,in which the rational individual and the nation-state, as an association of individ-uals, are central factors. From a macro-sociological perspective, the transitionaljustice process presents a challenge to Cambodian society: it is constructingthe individual as a legitimate actor and anchoring new role models, andthereby simultaneously ousting the traditional, collective social entities (suchas the family).

Conclusions and Prospects

Engaging in transitional justice today is the only legitimate way for states to dealwith past atrocities. Transitional justice means both coming to terms with pasthuman rights violations and, by doing so, engaging in the democratisationprocess. This is most observable in post-communist transitions, such as Cambo-dia.63 States may be selective about which methods they use, but complete

60. Teitel, op. cit., p. 90.

61. Frank and Meyer, op. cit., p. 87.

62. See Thorsten Bonacker, “Debordering by Human Rights. The Challenge of PostterritorialConflicts in World Society”, in Stephan Stetter (ed.), Contradictions! Territorial Conflicts in WorldSociety (London: Routledge, 2007), pp. 21–36.


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avoidance is hardly an option. States adopt and engage in transitional justicemeasures because it enhances their legitimacy in the international community.By applying world polity theory, questions about concrete political history areanswerable.

Furthermore, we conclude that an explanation of the emergence of transitionaljustice in Cambodia has to include a reflection on the change of the culturalcontent of the nation-state. This also implies taking into account the changing nor-mative expectations of world society on states, such as Cambodia. Transitionaljustice is an element of a changing world polity, which thus effects changes indomestic policy. This can be best understood by using the example of victim par-ticipation in the legal process and their empowerment brought about by civilsociety. Transitional justice thus resembles a global political opportunity structure,as well as a means for empowering local civil society actors. First, IOs such as theICC and as a hybrid, the ECCC, establish opportunities for the participation oflocal civil society and provide a means for influencing national politics. Victimparticipation can be seen as such an institutionalised opportunity. Second, it isthe engagement of international donors, whether states or organisations, that pro-vides this local civil society with resources and funding for empowerment. Third,local NGOs get the chance to frame their activities by referring to a global institu-tionalised vocabulary of transitional justice:

While there is a delicate interplay between global norms and localcultures, the growing vocabularies of social justice at the global levelenable activists to frame and reframe their causes to more effectivelygain public attention and support, both locally and globally [. . .]64

Against the background of such an empowered, legitimised civil society, a finalquestion arises: does the legitimisation that a state receives by dealing with pastatrocities in a proper manner truly increase its internal legitimacy? Which unin-tended consequences can be observed in the connection with victim participationin Cambodia?

For that purpose, some rather tentative considerations have to be acknowl-edged. The increased significance of the individual in comparison to the nation-state may have ambivalent implications for the process of transition, as thelatter also aims for increasing the stability of the state. Research on worldculture has shown how the global institutionalisation of human rights paradoxi-cally leads to a “proliferation of particularistic rights of sub- and transnational col-lectivities”,65 because the nation-state is no longer the dominant institution in thecreation of identities. A similar connection may possibly exist in the process oftransitional justice, when victim groups replace the classic connection between

63. It might seem arguable whether or not Cambodia’s ruling party, the CPP, is actually communist.Its organisational structure (e.g. a standing committee) and good relations with self-declared commu-nist states such as China and Vietnam speak in favour of this. However, its party program, self-presentation and actual politics clearly point the other way, embracing formally “the multi-partyand liberal democratic system as the fundamental basis of its policy and activities” and actuallyrunning the country in an autocratic-capitalist style.

64. Kiyoteru Tsutsui, “Redressing Past Human Rights Violations: Global Dimensions of Contempor-ary Social Movements”, Social Forces, Vol. 85, No. 1 (2006), p. 334.

65. Koenig, op. cit., p. 96.


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citizenship and collective identity, and the role of particular victim groups createscollective identities beyond the nation-state:

The organization of victim groups may expand democratic debate andexert pressure for further reform in some cases, while in other cases itmay have potentially violent repercussions. Mobilization around victimidentities has historically been associated with extremism, rejection ofcompromise, and rationalization of brutality as self-defense.66

This potential might not be as big in Cambodia as it is in ethnically dividedsocieties, where victim groups organise themselves along this ethnic divide,thus reproducing old conflict potential.

Institutionalising the victim may cause additional problems for internal legiti-macy. Robert Meister has shown how the focus on individual guilt and individualsuffering systematically excludes the question of whether sustaining social injus-tice is a result of the past: “Beneficiaries must become convinced that, thanks to thenow-established methodologies of transitional justice (memorials, truth commis-sions, and so on), surviving victims will not consider the ongoing advantagesenjoyed by beneficiaries as continuations or revivals of past injustice.”67 In otherwords, institutionalising the individual victim may result in legitimising continu-ing systemic/state injustices, thus generating a potential for new conflicts.

Macro-sociological theories, like world polity theory, provide analytical tools fora more comprehensive understanding of transitional justice and provide furtherinsights into respective case studies. The aim of this article was to show thatlocal developments and national circumstances could not solely explain thedesign of the transitional justice process, as exemplified in the case of Cambodia.In order to gain a more realistic and comprehensive understanding, globalprocesses and development shifts in the global environment had to be consideredin depth.

On the other hand, as this article has made clear, applying the macro-level lensis not sufficient to explain all aspects of transitional justice processes in general orto give a comprehensive account of the case of Cambodia. This is due to someshortcomings and blind spots of world polity theory that need to be taken intoaccount. First, the macro-level scope of the theory in general is lacking potentialto explain how exactly elements of world polity are introduced to local contexts.While the role of international civil society is highlighted at several points,68 theparticular dynamics are not. The interaction between different levels of institutio-nalisation, from the subtle, taken-for-granted elements to the more controversialones, whose content and meaning is discursively contended, seems to be ofcentral importance here. This is because it enables an assessment of the framefor strategic action for the respective actors. This shortcoming needs to be coun-tered by further theoretical work on world polity theory in order to improve itsexplanatory power at the meso- and micro levels of case studies. Furthermore,despite some isolated remarks, astonishingly a comprehensive history of theemergence and development of world polity is still missing. Further historical

66. Leebaw, op. cit., p. 113.

67. Robert Meister, “Human Rights and the Politics of Victimhood”, Ethics and International Affairs,Vol. 16, No. 2 (2002), p. 99.

68. See Boli and Thomas, Constructing World Culture, op. cit.


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research could provide better insights into the impact of world polity in differenthistorical periods. In the case presented herein, this would certainly further helpto explain transitional justice in the Cold War era.

Generally speaking, specific local path dependencies need to be balanced withthe impact of global norms and institutions at least in two ways: how actors stra-tegically refer to global norms in their actions (e.g. Cambodian NGOs and theirlobbying for victim participation), and how and where the more subtle levels ofworld polity work through the impact of actors (e.g. individualisation throughvictim participation). Developments and politics at domestic and regional levelsare difficult to focus upon using the broad lens of world polity theory, and theirimpact may thus be underrepresented. A full account of the development of tran-sitional justice in Cambodia would need more research and insight, for example inthe micro-level politics in the United Nations and the Cambodian government,especially the CPP, as to how they affected the process and how this furtherrelates to global norms and institutions. Thus, while this article offers insightsfrom the macro-level perspective, it is clear that micro-level developments stillrequire more exposure. Further research in this case and other transitionaljustice developments will need to take into account and combine both perspec-tives for a more comprehensive analysis.


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