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The crimes within the jurisdiction of the Extraordinary Chambers are crimes under Cambodian Penal law, crimes of genocide, crimes against humanity, crimes against the Geneva Conventions, and crimes under other international agreements applicable to Cambodia.

The word "tribunal" is convenient to briefly describe these Extraordinary Chambers.

4. Retributive Justice

Justice is a complex concept. It will be dealt with under three headings: Retributive Justice, Restorative Justice, and Distributive Justice.

Retributive Justice is concerned with both the rewarding of good and the punishment of evil. Commonly, we think of retribution largely in terms of punishment and revenge. It underlies many of the criminal law systems of the world, and the simplest expression is that the perpetrator of a crime deserves to be punished for her or his offences. So, those who have suffered under the Khmer Rouge seek retribution for their suffering by the punishment of those responsible for the suffering.

4.1 Retributive Justice and Closure by Legal Statement:

A legal process can bring closure to injury by coming to an official conclusion that one party was right, and another was wrong. The punishment involved represents a legal quantification of the degree of injury. For many victims, a legal process can bring a clear reversal of the verdicts of the Khmer Rouge, and re-establish their sense of rightness both individually and before the community. Such a closure enables people to leave an injury behind, and move on in their lives.

4.2 Retributive Justice and a Culture of Impunity:

The fact that such grave crimes remained unpunished contributes to a culture of impunity which continues in Cambodia. In the aftermath of the UN's withdrawal from the negotiating process in 2002, a number of states expressed concern about the UN position. While recognising that the Cambodian legislation of 2001 was flawed, these states were
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RASHKB Journal 皇家亞洲學會香港分會學刊 | RAS-2003
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for Cambodia, and it seems that there will be few, if any, trials other than those planned for the tribunal.

6.4 Distributive Justice and Legal Aid

In theory, legal aid should be available to all participants in a legal process, to ensure that a fair trial results. In practice, lack of resources means that legal aid is rationed to certain pre-selected cases. The criteria for rationing may mean that legal aid is only available for criminal cases, or only available for criminal cases where the penalties are severe. Also, legal aid may be rationed to the most needy applicants. Sometimes this can mean that the poorest litigants have access to legal aid, the richest litigants have access to paid lawyers, while the bulk of people in the middle effectively have no access to the courts.

Article 13 of the March 2003 Agreement between the United Nations and the Royal Government provides the right of defendants to have legal counsel if they wish. Then Article 17 of the Agreement makes financial provision for defence counsel the responsibility of the United Nations, which will act as a form of legal aid.

7. Law, Justice, and other Values

The limitations of legal systems have meant that societies have sought other methods besides Courts and Tribunals to achieve desired objectives.

7.1 Discovering the Truth:

One objective, going beyond what a court can do, is to provide for a system which “tells the truth" about an era, and enables reconciliation. Sometimes, the pattern of injury and counter-injury is such that punishment is not appropriate, and simply telling the truth opens the possibility for healing and reconciliation. One of the earliest international examples is the provision under the Geneva Conventions and Protocols for an International Fact Finding Commission.18 Not surprisingly, there are those in communities who would prefer the truth to remain hidden, and these structures have rarely been used. So we should not be surprised to discover that the International Fact Finding Commission has never been used.
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RASHKB Journal 皇家亞洲學會香港分會學刊 | RAS-2003
https://digitalrepository.lib.hku.hk/catalog/2v242g390
104

18 Article 90, Protocol I of 1977 to the 1949 Geneva Conventions.

19

Robyn Dixon: "In South Africa Truth is Easy, Reconciliation Hard", Cambodia Daily, 23 June 2004, p9.

20 Ea Meng-Try: Justice and reconciliation, op cit p49-50, and 57-58. Anon: Using Buddhist Values and Human Rights to Promote Free, Fair and Secure elections in Cambodia, Cambodian Institute of Human Rights, Phnom Penh, November 1997, p36 and p40.

21 Komai Hiroshi; The Role of Buddhism in the Reconstruction of the Cambodian Rural Villages, paper presented at the National Socio-Cultural Research Congress on Cambodia, Royal University of Phnom Penh, 19 December 1997, p.25

22 Thomas Michel: "The Ethics of Pardon and Peace" Sedos Bulletin vol 36, no3/4, March-April 2004, pp89-94.

23 See Carla Bongiorno: "The Cambodian Backpacker Murders and Khmer Rouge Immunity", Australian Journal of Asian Law, 2001, no 3, pp261-279.

25

Quoted in Yun Samean: "Prosecutor Defends KR Leader Arrest Order", Cambodia Daily, 8 June 2004, p1.

26 Chhay Yiheang: "The dialectic of a Khmer Rouge trial", Phnom Penh Post, 29 September - 12 October 2004.
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