The Extraordinary Chambers in the Courts of Cambodia in a Hybrid System; The Effects of Politics, Law and History

Abstract

The ECCC is positioned within a hybrid democratic system where politics affect law, and where law does not stand in the way of money and power. This culture follows the Cambodian judges into the ECCC, where it is translated into their practices. The ECCC being a mixed tribunal has both Cambodian and international judges. Allegations of corruption, political interference and kickbacks have circled the Cambodian judges since the opening. This hybrid system, where democratic rules have been adopted but not necessarily practiced, is controlled by the country’s long tradition of patronage politics, corruption and impunity where money, power and political favors have enabled the bypassing of the rule of law. The legislature and judiciary is weak. The ruling party is influencing the laws being made and the judges by bribery and extortion etc. This due to decades of a weak legal system, after the Khmer Rouge wiped out all legal and moral norms, and killed almost the entire legal profession. Today’s legal system was introduced by the international community in accordance with international standards of justice and does consequently not reflect Cambodian practices. An analysis of research and reports regarding this situation shows that Cambodian laws are not in a strong enough state of being the primary base of the tribunal’s jurisdiction and procedure. Politically active figures hold positions in institutions that are supposedly independent and neutral. Hun Sen has made statements seemingly as an attempt to affect the ECCC practices. Disagreements between the Cambodian and international staff have lead to a delay of the process. Conclusively, there is a tendency of the Cambodian judges in the ECCC taking a stance along line the Cambodian politics, while the international judges have taken the opposite. Ergo, this is a sign that the ECCC is not solely independent and neutral. Politics seem indeed to be coming in contact with its practices, and influence cannot yet be excluded.