The Khmer Rouge Tribunal: Power, Politics, and Resistance in Transitional Justice by Julie Bernath (review)

Reviewed by: The Khmer Rouge Tribunal: Power, Politics, and Resistance in Transitional Justice by Julie Bernath John Quigley (bio) Julie Bernath, The Khmer Rouge Tribunal: Power, Politics, and Resistance in Transitional Justice (University of Wisconsin Press 2023), ISBN 978029934606 (hard cover), 271 pages. This book focuses on what author Julie Bernath identifies as "resistance" within Cambodia to the work of the Extraordinary [End Page 375] Chambers in the Courts of Cambodia (ECCC), the hybrid tribunal that is currently finishing its project of prosecuting for atrocities committed in Cambodia during the 1975-1979 reign of the Communist Party of Kampuchea, popularly known as the Khmer Rouge. Bernath specifies two elements of resistance. The first is resistance emanating from the post-1979 government of Cambodia, controlled by the Cambodian People's Party (CPP). The second is resistance emanating from Cambodia's population. The ECCC was set up jointly in 2001 by the United Nations (UN) and by Cambodia's CPP-led government, as an exercise in transitional justice. UN-appointed investigators and judges were to work alongside CPP-appointed counterparts. For each side, the project was less than straight forward. The CPP was in a contradictory position, because while it was agreeing to the project, it was composed of personnel who had been Khmer Rouge themselves but who had defected and allied with neighboring Vietnam to drive the Khmer Rouge from power in 1979. The CPP leadership thus regarded itself less as being responsible for Khmer Rouge atrocities than as the force that stopped them.1 On its side, the UN was in a contradictory position, because while it was initiating this project to prosecute Khmer Rouge functionaries, it had supported them for a decade after their removal from power by continuing to accept the Khmer Rougeled government as the legitimate government of Cambodia. The Khmer Rouge sat in New York, attending UN meetings, while the CPP mired in diplomatic purgatory. That continuing UN recognition of the Khmer Rouge was in part a product of aversion to foreign-backed overthrows as a matter of principle, and in part a dislike, especially from the Western powers, towards Vietnam.2 Once the ECCC was established, the CPP's resistance was not long in manifesting itself. The CPP sought to limit the scope of prosecutions to a small circle of top Khmer Rouge functionaries, thereby insulating the current CPP. Bernath, along with other analysts, views the CPP as having adopted this stance to avoid attention to its own personnel, who had a role in the atrocities that the ECCC was to address.3 Bernath notes that the ECCC declined to apply genocide to atrocities committed against the numerically predominant Khmer population, thereby putting the tribunal at odds with the usage of the term "genocide" in Cambodia, where it was applied to include atrocities against the Khmer.4 The Genocide Convention does not, at least expressly, limit genocide to acts directed against a group different from that of perpetrators. Bernath makes the point that for all the CPP's resistance to the ECCC, the fact that the ECCC prosecuted top Khmer Rouge leaders validated the CPP's overthrow of the Khmer Rouge by characterizing Khmer Rouge conduct as criminal, including implied validation of a trial that [End Page 376] was conducted under the CPP in 1979, just after its accession to power, against two top Khmer Rouge leaders.5 Bernath next turns to what should be seen as her book's main contribution, namely, the reaction of the Cambodian population to calls for it to participate at the ECCC as "civil parties."6 It is this latter section of the book that sets it apart from earlier analysis of the ECCC and that draws on Bernath's own on-the-ground research. The ECCC's use of the civil party concept constituted a borrowing from French criminal law, whereby a person injured by commission of a crime can participate in the criminal trial of the perpetrator to claim compensatory damages. A provision for civil party participation was written into the ECCC as a way of letting victims participate, but without great specificity on the scope of that participation. Contrary to the French concept of civil parties...