Figuring Victims in International Criminal Justice: The Case of the Khmer Rouge Tribunal 1138242306, 9781138242302

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Figuring Victims in International Criminal Justice: The Case of the Khmer Rouge Tribunal
 1138242306, 9781138242302

Table of contents :
Figuring Victims in International Criminal Justice- Front Cover
Figuring Victims in International Criminal Justice
Title Page
Copyright Page
Contents
Preface
Acknowledgements
Abbreviations
Chapter 1: The victim’s address
‘In the name of the victims’
The address as linguistic possibility
Iconic trials
Ordinary international criminal trials
A roadmap
Chapter 2: The establishment of a court
Introduction: before the law
Jurisdiction and the victims of Democratic Kampuchea
Emblems
Chapter 3: The Khmer Rouge marriages and the victims of crime
Life, experience and representation
Translation into crime: becoming crimes against humanity
Characterising the underlying offence
The inhumane acts of ceremony
The promise of representation
Chapter 4: Becoming participant: victim representations at trial
Introduction: entering the Trial Chamber
The visitor
The civil party
The testifier
Participating as victim during trial
Chapter 5: Photographs and outreach: relating victims to images
Introduction
Outreach
The institutions of the images
Learning from photographs
Conclusion
Chapter 6: Conclusion: ‘moving forward through justice’
The addresses of victims
Moving through justice
Index

Citation preview

Figuring Victims in International Criminal Justice

Most discourses on victims in international criminal justice take the subject of victims for granted, as an identity and category existing exogenously to the judicial process. This book takes a different approach. Through a close reading of the institutional practices of one particular court, it demonstrates how court practices produce the subjectivity of the victim, a subjectivity that is profoundly of law and endogenous to the enterprise of international criminal justice. Furthermore, by situating these figurations within the larger aspirations of the court, the book shows how victims have come to constitute and represent the link between international criminal law and the enterprise of transitional justice. The book takes as its primary example the Extraordinary Chambers in the Courts of Cambodia (ECCC), or the Khmer Rouge Tribunal as it is also called. Focusing on the representation of victims in crimes against humanity, victim participation and photographic images, the book engages with a range of debates and scholarship in law, feminist theory and cultural legal theory. Furthermore, by paying attention to a broader range of institutional practices, Figuring Victims makes an innovative scholarly contribution to the debates on the roles and purposes of international criminal justice. Maria Elander is a lecturer at La Trobe Law School, La Trobe University, Melbourne, Australia.

Figuring Victims in International Criminal Justice The Case of the Khmer Rouge Tribunal Maria Elander

First published 2018 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN and by Routledge 711 Third Avenue, New York, NY 10017 A GlassHouse Book Routledge is an imprint of the Taylor & Francis Group, an informa business  2018 Maria Elander The right of Maria Elander to be identified as author of this work has been asserted by her in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data Names: Elander, Maria, author. Title: Figuring victims in international criminal justice : the case of the Khmer Rouge tribunal / Maria Elander. Description: Abingdon, Oxon ; New York, NY : Routledge, 2018. | Based on author’s thesis (doctoral - University of Melbourne, Melbourne Law School, 2015) issued under title: The figure of the victim in international criminal justice. | “A GlassHouse Book.” | Includes bibliographical references and index. Identifiers: LCCN 2018003141 | ISBN 9781138242302 (hardback) Subjects: LCSH: War crimes trials—Cambodia. | Genocide survivors— Legal status, laws, etc.—Cambodia. | Victims of crimes (International law) | Extraordinary Chambers in the Courts of Cambodia. Supreme Court Chamber. Classification: LCC KZ1208.C36 A145 2018 | DDC 341.6/90268—dc23 LC record available at https://lccn.loc.gov/2018003141 ISBN: 978-1-138-24230-2 (hbk) ISBN: 978-0-429-95974-5 (ebk) Typeset in Galliard by Swales & Willis Ltd, Exeter, Devon, UK

Contents

Preface Acknowledgements Abbreviations 1 The victim’s address

vi viii x 1

2 The establishment of a court

36

3 The Khmer Rouge marriages and the victims of crime

72

4 Becoming participant: victim representations at trial

104

5 Photographs and outreach: relating victims to images

145

6 Conclusion: ‘moving forward through justice’

184

Index

193

Preface

Falling. Turning. Moving. Bending, twisting, tumbling, changing. Hanging. In suspense. Losing. At loss. The body is in motion in Séra’s Recumbent Figure. In what seems to be a moment of suspended movement, it invokes pain and loss. Something is clearly wrong. The feet are twisted, the head is disfigured or perhaps even missing. Yet, there is an ambiguity too. One that makes it difficult to pin down what is going on. The suspended figure invokes a painting by Vann Nath, the Cambodian artist who survived security centre S-21 and then painted, partly as a way to bear witness to what he saw. In one of his paintings, guards are walking with an emaciated blindfolded man hanging from a long stick. The figure in Séra’s painting, with a similar position, echoes the pain therein. Furthermore, there is something of a Francis Bacon figure in the blurred body in a perpetual state of turning. There is a violence, at the same time as an ambiguity. Recumbent Figure is one in a series of works by Séra – both paintings and sculptures – on the Khmer Rouge period. When the Khmer Rouge arrived in Phnom Penh in 1975, Séra (Phousera Ing) took refuge together with his siblings and his French mother in the French embassy. His Cambodian father could not enter and was later killed. In 2014, the Extraordinary Chambers in the Courts of Cambodia (ECCC) recognised his proposed sculpture À ceux qui ne sont plus là (For Those Who Are No Longer Here) as a reparation in Case 002/01. In that case, two surviving leaders of the regime were found guilty of forced population movement as a crime against humanity. The sculpture was erected in 2017 in a roundabout park in Phnom Penh with the French embassy on one side and encircled by roads that lead to and from the city. The sculpture is at once a comment on a personal experience, on the shattering of families and on the crime of forced population transfer, and on the continued movement to and from the city. Initially, the sculpture – a set of six pieces with one large human-like piece, four smaller pieces and a large wall – was composed of figures where some of the limbs were missing or twisted, like in Recumbent Figure. As Séra explained in an interview, the figures were meant to invoke ancient Khmer statutes that today often appear somewhat disfigured, with a piece or a limb missing. They were also ‘recounting and expressing the convulsions of time and suffering endured by the victims of

Preface vii the Khmer Rouge period . . . without arms . . . this mutilation [was] of the mind and spirit as well as the body.’1 But some victim survivors in whose name the reparation was awarded reportedly took offence. The missing limbs were read as contradicting Khmer Buddhist beliefs that the whole body needs to be buried if the spirits are to rest. Bodies with missing limbs may continue to haunt, in perpetual search of what they have lost. The sculpture erected in 2017 has elements of suspension, and a turning body, but all limbs are present. Instead, the body is ‘positioned [as if] praying, but the feet are in the expression of working . . . [as] people [during the regime] didn’t have any other power than [secretly] praying and work.’2 In this book on the practices of figuring victims, with a focus on the Khmer Rouge Tribunal, Séra’s image Recumbent Figure says something about the many different movements involved in the figuration of suffering and subjectivity. By using his image as the cover, I do not refute the concern expressed by some of the victim survivors. Instead, it instructs me to continue to learn and pay attention to the contrasting, ambiguous and complex figuring of subjects that are represented as victims.

1 Quoted in Emily Wight, ‘Sculptor Plans Genocide Memorial for Historic French Embassy Grounds’ (21 February 2014) Phnom Penh Post, www.phnompenhpost.com/7days/sculptor-plans-genocidememorial-historic-french-embassy-grounds. 2 Quoted in Audrey Wilson, ‘Memorial to Millions is Set for 2017 Unveiling’ (30 September 2016) Phnom Penh Post, www.phnompenhpost.com/post-weekend/memorial-millions-set-2017-unveiling.

Acknowledgements

As all books, this has been long in the making and many people have contributed to it. It began as a PhD thesis and has since been partly rewritten for the purposes of the present monograph. Two people stand out for their significance in shaping this book. Separately and in different ways, Peter Rush and Rachel Hughes have been important interlocutors and readers, and I am deeply grateful to them both. Peter supervised the thesis and has taught me much about reading closely and writing with care. Rachel’s knowledge in issues in memory and justice in Cambodia together with her generosity and ethics of care has made her an important part of this work. Additionally, I am grateful for my other PhD supervisor, Dianne Otto, who helped shape the thesis and who has since her retirement remained an important friend and mentor. Although I hope it comes without saying, none of them are responsible for any remaining errors or for the arguments in the book, but they have in different ways made the book much better. The book is partly based on research conducted in Cambodia in 2011 and 2016, and I am extremely grateful to the persons I met there who gave of their time and shared their experiences and expertise. My heartfelt thanks to Hayat Abu-Saleh, Terith Chy, Youk Chhang, Anne Heindel, Helen Jarvis, Victor Koppe, Latt Ky, Wendy Lobwein, Lars Olsen, Im Sophea, Neville Sorab, Christoph Sperfeldt, Silke Studzinsky, Dim Sovannarom, Philippine Sutz and Beini Ye. Again, none of them is responsible for any errors, arguments or conclusions, but each of them has made this book a bit more possible. My thanks also to Helen Jarvis and Christoph Sperfeldt, who have continued to comment on drafts and clarify issues regarding practices at the ECCC. A number of friends and colleagues have read draft chapters, some even several times. In addition to those already mentioned, I am grateful to Matilda Arvidsson, Madelaine Chiam, Rosemary Grey, Laura Griffin, Nesam McMillan and Marc Trabsky, who all read and commented generously on drafts post PhD. I am also immensely grateful to David Luban and Doris Buss, who examined the thesis, Anne Orford and Gerry Simpson, who acted as academic assessors at Melbourne Law School, and Jennifer Balint, who guided the travels from PhD thesis to book manuscript. Their comments and questions have significantly improved the book.

Acknowledgements ix Melbourne Law School and La Trobe Law School have both provided for friendships and made the journey intellectually stimulating. Sara Dehm and Laura Petersen have shared the ups and downs of PhD, work, parenthood and research, and I am grateful to both. Special thanks to Joanna Kyriakakis, whose friendship and shared interest in international criminal law keeps me going. My thanks also to Olivia Barr, Monique Cormier, Julia Dehm, Debolina Dutta, Luis Eslava, Ann Genovese, Jake Goldfein, Bec Goodbourn, Kevin Heller, Anna Hood, Joseph Kikonyogo, Eve Lester, Shaun McVeigh, Jenny Morgan, Sundhya Pahuja, James Parker, Rose Parfitt, Connal Parsley, Sophie Rigney, Oishik Sircar and Cait Storr, all of whom in different ways have contributed to the book. My thanks also to participants of writing workshops at the Institute for Global Law and Policy in 2014 and 2017 for their careful readings and comments on chapters. This book began its life as a PhD thesis at Melbourne Law School. The work of translating it into a monograph began at the School of Social and Political Sciences, University of Melbourne, and finished at La Trobe Law School, La Trobe University. I am grateful to each institution for its support; the first two for providing scholarships that enabled fieldwork in Cambodia, and the latter for providing time to tie it all together. My sincere thanks to Séra for allowing me to use his image as the cover of the book. And then, of course, there are Robin and Harry-Lo, my two loves. Their support has made all this possible. Shorter and different versions of Chapter 5 have appeared as ‘Education and Photography at Tuol Sleng’, in Peter Rush and Olivera Simic (eds.) The Art of Transitional Justice (Springer, 2014) 43–62; and ‘Images of Victims’, in Desmond Manderson (ed.) Law and the Visual: Transitions and Transformations (University of Toronto Press, 2018). I am grateful for permission to reproduce this material here and to the editors for their support.

Abbreviations

CIJ Co-investigating judge CP Co-prosecutor CPK Communist Party of Kampuchea DK Democratic Kampuchea ECCC Extraordinary Chambers in the Courts of Cambodia GA General Assembly (United Nations) ICC International Criminal Court ICJ International criminal justice ICL International criminal law ICTs International criminal courts and tribunals ICTR International Criminal Tribunal for Rwanda ICTY International Criminal Tribunal for the former Yugoslavia IMT International Military Tribunal at Nuremberg KRT Khmer Rouge Tribunal NGO Non-governmental organisation PAS Public Affairs Section (of the ECCC) PRK People’s Republic of Kampuchea (1979–1989) SCC Supreme Court Chamber (of the ECCC) SCSL Special Court for Sierra Leone UN United Nations VSS Victims Support Section (of the ECCC)

1 The victim’s address

‘In the name of the victims’ When Chum Mey appeared on July 26, 2010 at the compound of the Extraordinary Chambers in the Courts of Cambodia (ECCC, or the Court; also known as the Khmer Rouge Tribunal, or KRT), he did so as a victim survivor. It was an important day, the day the trial judges would deliver their judgment against Kaing Guek Eav, alias Duch, the former Chairman of notorious Khmer Rouge security centre S-21. In 1978, Chum Mey had been imprisoned at S-21, but survived thanks to his skills as a mechanic. Almost 30 years later, an agreement between the United Nations (UN) and the Cambodian government established the ECCC, an internationalised tribunal authorised to bring to trial senior leaders and those most responsible for crimes in Democratic Kampuchea committed between 1975 and 1979. And today, the verdict was to come in its first trial. When charges were issued at the ECCC against Duch in 2008, the suffering Chum Mey had experienced was translated into allegations of crimes against humanity.1 When the case went to trial, Chum Mey became an active participant. He applied to become a civil party, formally party to the case, he visited the Court each day when it was in session,2 and on 30 June 2009, the trial’s 36th day, he sat down inside the chamber to give testimony.3 Meanwhile, Chum Mey continued to visit S-21, which since 1980 has been operating as the Tuol Sleng Genocide Museum. At this place Chum Mey works as a tour guide, and to this place the ECCC regularly takes ordinary Cambodians to teach them about the Court and about the Khmer Rouge. When the judges handed down their judgment on July 26, Chum Mey was reportedly distraught. Not all who had participated in the proceedings as civil parties were recognised as such in the judgment,4 and the sentencing of Duch to a 1 Prosecutor v Kaing Guek Eav alias Duch (Closing Order) (Extraordinary Chambers in the Courts of Cambodia (ECCC), Trial Chamber, Case No 001, 8 August 2008) [133] (‘Duch Closing Order’). 2 Laura MacDonald, ‘Thirty Years Ago, Duch Took His Toenails; Today, He Took It to Duch’ on Cambodia Tribunal Monitor Blog (30 June 2009), www.cambodiatribunal.org/sites/default/files/ ctm_blog_6-30-2009.pdf. 3 Transcripts of Proceedings, Prosecutor v Kaing Guek Eav alias Duch (ECCC, Trial Chamber, Case No 001, 30 June 2009) (‘Duch Trial Transcripts’). 4 Prosecutor v Kaing Guek Eav alias Duch (Judgment) (ECCC, Trial Chamber, Case No 001, 26 July 2010) (‘Duch Trial Judgment’). After appeal, this was changed to life imprisonment. See Prosecutor v Kaing Guek Eav alias Duch (Appeal Judgment) (ECCC, Supreme Court Chamber, Case No 001, 3 February 2012) (‘Duch Appeal Judgment’).

2  The victim’s address prison term of 35 years, reduced to 19 for time already served and previous illegal detention, was seen as controversial.5 In media reports on the judgment, Chum Mey’s anger raised headlines. Reacting against what he perceived as an unfair sentence, he exclaimed: ‘I am not satisfied. We are victims two times, once in the Khmer Rouge time and now once again.’6 Chum Mey embodies manifold representations of victims in international criminal justice. As a surviving victim, his views are often taken to represent those of Khmer Rouge victims, in particular in relation to the ECCC. When the ECCC was set up, some of his experiences fell under the Court’s jurisdiction and contributed to the representation of crime; his participation during the trial made him a spectator, a formal participant and a testifier; and his connection to the Tuol Sleng Genocide Museum means that he partakes in extending the work of the Court beyond the Trial Chamber. In a way, Chum Mey represents the subject of this book. *** This book is about the figuring of victims in international criminal justice (ICJ). International criminal courts and tribunals (ICTs) are today a standard approach in dealing with the aftermath of conflicts and atrocities. At the heart of ICJ lie a number of promises: from personal accountability, deterring future atrocities and restraining wars to simply knowing the ‘truth’. Yet, as an enterprise, ICJ is held together not only at a level of facts or moral principles but also by the language used. Through its practices, this enterprise proceeds as a community in which certain forms of suffering and losses during conflicts and atrocities are perceived of as ‘crimes’, those who are responsible for these crimes as ‘perpetrators’, and those who have suffered from them as ‘victims’. Through the allocation of subject positions and by labelling conduct, experiences and events are expressed and heard. In this way, at the foundation of ICJ’s promises is a promise of representation. Victims figure in relation to these promises of ICJ in general and to the promise of representation in particular. This relation ties the victim figures to the enterprise of ICJ, relating them to its practices. These practices and relations are manifold. For example, victims are invoked in arguments for setting up a court and in the rationales for such an institution. In this vein, one can read in the Preamble of the Rome Statute for the International Criminal Court (ICC) that the States Parties are ‘[m]indful that during this century millions of children, women and men have been victims of unimaginable atrocities that deeply shock

5 See, for example, Guy de Launey, ‘Tears and Disbelief at Duch Verdict’ (26 July 2010) BBC News, www.bbc.co.uk/news/world-asia-pacific-10763409; Robin McDowell, ‘For Most Cambodians, “Justice” Has Little Meaning’ (8 August 2010) Cambodia Tribunal Monitor, www. cambodiatribunal.org/sites/default/files/news/8.8.10%20for%20most%20cambodians%20 justice%20has%20little%20meaning.pdf. 6 Seth Mydans, ‘Anger in Cambodia Over Khmer Rouge Sentence’ (26 July 2010) New York Times (online), www.nytimes.com/2010/07/27/world/asia/27cambodia.html.

The victim’s address 3 the conscience of humanity.’7 Likewise in Cambodia, Prime Minister Hun Sen has suggested that the proceedings at the ECCC are conducted in the name of the victims: it is in their name that justice will finally be brought.8 Furthermore, victims feature in news articles, non-governmental organisation (NGO) reports, academic writings and legal texts. They appear as figures of the past and present, in descriptions that are positive and negative. The plight of victims is often invoked as a call for action;9 a description of their situation becomes a description of the need for criminal courts to act. At the judicial institution, victims figure in and through the proceedings. For example, victims’ experiences take the form of evidence, their statements appear as testimonies and their comments about the Court are often taken in media and NGO reports as indications of whether the Court and its proceedings are successful. In relation to ICTs, then, victims figure in significant ways. In this book, I pose the question of how practices of ICJ represent victims. Recent years have seen an explosion of scholarship that in different ways engages with the relation between victims and ICJ.10 Much of this scholarship is dedicated to analysing particular practices or mechanisms with the purpose of demonstrating how these either benefit or harm victims. Shaping this scholarship is a number of questions: How should a victim-oriented court operate? In what way does providing testimony empower or re-traumatise the victim? To what extent did the early war crimes tribunals adequately respond to the needs of victims? How can international criminal law (ICL) better respond to gender-based violence during conflicts? And how can courts respond to so-called ‘complex’ victims who have both committed crimes and been victimised? Alongside the jurisprudential development of the courts and tribunals, this scholarship contributes to the furthering and delimitation of the promises of ICJ. In this book, I pose a slightly different question. Rather than asking how a certain instrument is or is not working for victims, I am interested in the way that practices of ICJ represent victims of atrocity and thereby contribute to our understanding of the constitution of ‘victim’, for and in ICJ. In doing so, I build on a body of critical scholarship that seeks to unpack the imaginations and presentations of subjects such as victims in ICJ, and the way that international courts and

7 Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 90 (entered into force 1 July 2002) Preamble (‘Rome Statute’). 8 ‘When the judges have delivered their verdicts, we hope that Cambodians and all who support us will feel a load lifted from our backs as we finally bring justice in the name of the victims’: Hun Sen, An Introduction to the Khmer Rouge Trials (Public Affairs Section, ECCC, 4th ed, 2004). 9 See, for example, Anne Orford’s work on the discursive production of the call for action in the context of humanitarian intervention: Anne Orford, Reading Humanitarian Intervention: Human Rights and the Use of Force in International Law (Cambridge University Press, 2003). 10 Scholarship on victims in ICJ is too extensive to provide in full here. Notable references include ‘Special Issue: Reconsidering Appropriate Responses to Victims of Conflict’ (2016) 10 International Journal of Transitional Justice; Thorsten Bonacker and Christoph Safferling (eds), Victims of International Crimes: An Interdisciplinary Discourse (TMC Asser Press, 2013); Luke Moffett, Justice for Victims before the International Criminal Court (Taylor and Francis, 2014).

4  The victim’s address tribunals contribute to discourses on victimhood.11 I ask: How do the practices of an internationalised criminal court represent victims, if and when representation is understood as a practice of subject formation? How do the practices of a court make a subject called ‘victim’ intelligible? Asking and examining these questions enable a richer account of not only victims but also of the practices of ICJ. The term ‘victim’ is laden with political and cultural undertones. Because of perceived connotations with passivity and helplessness, the term is often rejected in preference for the terms ‘survivor’ or ‘agent’. This ‘Agent-Not-Victim’ trope12 has become a preferred, even dominant, form to describe those who have suffered injustices and violence.13 Nevertheless, the term ‘victim’ retains a strong position in ICJ, in part because of the longevity of the term in law and legal writing, but also because of the fact that not all who figure as victims of international crimes survive. Here, victim-survivor is but one iteration of the victim figures. ‘Victim’ operates as a category, a category that holds manifold and at times contradictory representations that are nevertheless composed in and condensed by one figure. While the category of the victim is singular, its figurations are many and sometimes incoherent. As with Chum Mey in the story above, victims figure in a range of practices at the criminal justice institutions. By attending to these practices as the workings of representation and performativity14 I unfold a range of victim figurations. 11 See, for example, Sara Kendall and Sarah Nouwen, ‘Representational Practices at the International Criminal Court: The Gap between Juridified and Abstract Victimhood’ (2014) 76 Law and Contemporary Problems 235; Emily Haslam and Rod Edmunds, ‘Victim Participation, Politics and the Construction of Victims at the International Criminal Court: Reflections on Proceedings in Banda and Jerbo’ (2013) 14(2) Melbourne Journal of International Law 727; Emily Haslam, ‘Silences in International Criminal Legal Histories and the Construction of the Victim Subject of International Criminal Law: The Nineteenth-century Slave Trading Trial of Joseph Peters’ in Christine Schwöbel (ed), Critical Approaches to International Criminal Law: An Introduction (Routledge, 2014) 181; Laurel Fletcher, ‘Refracted Justice, The Imagined Victim and the International Criminal Court’ in Christian De Vos, Sara Kendall and Carsten Stahn (eds), Contested Justice: The Politics and Practice of the International Criminal Court Interventions (Cambridge University Press, 2015) 302; Kamari Maxine Clarke, ‘“We Ask for Justice, You Give Us Law”: The Rule of Law, Economic Markets and the Reconfiguration of Victimhood’ in Christian De Vos, Sara Kendall and Carsten Stahn (eds), Contested Justice: The Politics and Practice of the International Criminal Court Interventions (Cambridge University Press, 2015) 272. See also Nesam McMillan’s work on the ‘international’ for the purposes of crime and justice: for example, Nesam McMillan, ‘Imagining the International: The Constitution of the International as a Site of Crime, Justice and Community’ (2016) 25(2) Social & Legal Studies 163. 12 Gudrun Dahl, ‘Sociology and Beyond: Agency, Victimisation and the Ethics of Writing’ (2009) 37 Asian Journal of Social Science 391. 13 See Rebecca Stringer, Knowing Victims: Feminism, Agency and Victim Politics in Neoliberal Times (Routledge, 2014), for a thoughtful engagement with feminist rejections of victimhood. According to her, both postmodern feminist critiques of anti-rape feminism and Nietzschean accounts of feminism as a ‘politics of ressentiment’ in feminist political theory ‘host complaints about victimhood that bear the hallmarks of neoliberal victim theory’ (7), something that antiracist and postcolonial feminist versions of the anti-victim critique does not. 14 In developing these theoretical concepts, I rely on the work of Judith Butler and to some extent on that of Hannah Fenichel Pitkin. See Judith Butler, Gender Trouble: Feminism and the Subversion of Identity (Routledge, 2nd ed, 2007); ‘Gender as Performance’ (1994) 67 Radical Philosophy: A Journal of Socialist and Feminist Philosophy 32; Excitable Speech: A Politics of the Performance (Routledge, 1997); The Psychic Life of Power (Stanford University Press, 1997); Hanna Fenichel Pitkin, The Concept of Representation (University of California Press, 1967).

The victim’s address 5 The figurations shift and change, depending on the practice, but remain in relation to the institution. Together, the practices constitute a victim as moving through the legal institution, a movement that involves both repetition and difference. In this unfolding, I focus on one particular institution and its practices of victim representation: the ECCC (or KRT). This institution provides a productive site in which to examine how victims are figured by and in ICJ. This is not because the ECCC is a ‘typical’ institution in its engagements with victims, but rather because it goes further than its predecessors and contemporaries. Here, victims can apply to become civil parties, a status that grants them a range of participatory rights, initially conceived of as making them parties to the case. This status is more extensive than at the ICC, where victims may only present ‘their views and concerns’ at ‘appropriate’ ‘stages of the proceedings’,15 and at the early ad hoc tribunals for the former Yugoslavia and Rwanda, where victims could only appear if called as witnesses. Thus, whereas many early writings on victims in relation to the ICTs call for ‘more’ participation, the extensive provisions for participation at the ECCC reveal how victims appear as participants when they are authorised to do so, and what the effects are of this appearance. Furthermore, the location of the ECCC in Cambodia provides for close interactions with those who were affected by the crimes adjudicated. This can be compared with the location of the International Criminal Tribunal for former Yugoslavia (ICTY) and the ICC in The Hague, and the International Criminal Tribunal for Rwanda (ICTR) in Arusha. The distance between these institutions and the communities affected by the adjudicated crimes has raised concerns over making the legal process ‘inaccessible’.16 The ECCC thus enables an examination of what happens when a court operates in the proximity of affected communities, and how this affects the representation of victims. Moreover, the ECCC relates in a curious way to ICL as a field in development. On the one hand, as one of the later internationalised criminal courts, the ECCC is able to draw on the developments of earlier courts and tribunals.17 On the other hand, the ECCC focuses on crimes committed between 1975 and 1979. Since it is a fundamental principle of law that no person may be punished for something that was not a crime at the time of the act,18 the laws applicable at the ECCC reflect international laws of the 1970s. So while it, as a relatively late institution, can draw on the experiences of earlier courts and

15 Rome Statute art 68(3). 16 See Diane F. Orentlicher, That Someone Guilty Be Punished (Open Society Institute 2010, 101; Craig Etcheson, ‘Designing Justice for Cambodia’s Khmer Rouge’ in John Carey, William V. Dunlap and Robert John Pritchard (eds), International Humanitarian Law: Prospects (Brill, 2006) 191, 198–200, discussing this very issue in relation to a then future ECCC. 17 This is both as a field and on an individual level, as several ECCC staff members have previously worked at other ICTs. 18 See, for example, International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) art 15 (‘ICCPR’).

6  The victim’s address tribunals, the jurisprudential developments in these courts are not necessarily applicable.19 This creates a tension between expectations and the possibilities for being represented as a victim in ICJ, a victim of crime. In other words, there is a complication in the use of ICL here, which further makes the ECCC a fruitful site with which to engage. The focus on the ECCC enables a close reading of the variegated practices of victim representation therein. By tracing the victim through the institution, the repetition and difference of the representational practices of that institution come into view. Nevertheless, the ECCC does not operate in isolation. Situating the practices of victim representation at the ECCC with occasional references to other ICTs negates any assumption of a linear development of victim representations but demonstrates the repetition and difference within the enterprise of ICJ. Together, the practices of the institution provide for manifold and indeterminate victim figurations. This claim of indeterminacy is not a suggestion that the victim representations are ambivalent or unclear, but indeterminate in the sense that there is nothing self-evident about ‘who’ the victim appearing through the practice is. This claim of manifold and indeterminate victim figurations is the core argument of this book and is unfolded throughout the book chapters. Following on from this argument, I suggest that these figurations constitute a performance of the international criminal legal order as a politics of transition. The remainder of this introductory chapter does three things: first, I explain the victim’s address as a way of attending to representation as both a relation and a practice of subject formation. This allows a reading that takes victims not as exogenous to the system but rather as part of its practice and apparatus. Second, I turn to some of the places of ICJ and how victims have been represented therein. In doing so, I am not so much interested in a chronological or exhaustive account of either, but in a situated background consisting of illustrative examples that illuminate the practices of the ECCC. As will become apparent, the figures of the victim in the different ICTs both resemble and depart from each other. Finally, I offer a road map of the book as a whole.

The address as linguistic possibility In ICJ, the victim figures through a relation (or lack thereof) with the ICTs. This figuration is a place-making and a communication: a placing of the victim in relation to the courts, and a communication of this relation. At the same time, the victim is placed in a relation with ICJ more broadly; a relation that likewise is

19 For example, rape was only recognised as a possible constitutive act of crimes against humanity and genocide in 1998. See Chapter 3. Additionally, the requirement of a nexus to armed conflict in the definition of crimes against humanity during the period was an issue of contention. Here, the ECCC Trial Chamber held that the armed conflict and crimes against humanity had already been ‘delinked’ by the relevant time in the 1970s. See Prosecutors v Nuon Chea, Khieu Samphan, Ieng Sary & Ieng Thirith (Decision on Co-Prosecutors’ Request to Exclude Armed Conflict Nexus Requirement from the Definition of Crimes Against Humanity) (ECCC, Trial Chamber, Case No 002, 26 October 2011).

The victim’s address 7 a form of communication. This double placing, double communication, is what I call the victim’s address. The victim’s address is regulated by place and speech. Through language, the victim is represented, and through language, a victim subject is performatively brought into being. The linguistic practices that hold ICJ together involve both representation and performativity, and attending to these concepts enables a reading of the ways in which subjects emerge. Whereas the question of representation points in part to the relations between those who represent and those who are represented, attending to performativity reveals the way a subject appears through language and may resist this appearance. As I explain later in detail, subjects appear through relations with others, through discursive practices that proceed as modes of address, a ‘call’. This is not to say that subjects only relate to language passively by being brought into being. Rather, language also offers means of resistance and challenge, ways to call back. To put it more concretely, the victim, brought into being through language, also has a capacity to challenge the discursive practices that constitute it as a subject and thereby to alter the practices of ICJ. To some extent, this capacity to challenge – and the fantasy to do so – enables the victim to shape the practices as well as appearing through them. This, as Elena Loizidou puts it, ‘renders language hostage to the possibility of being alive.’20 In describing the representations, the performativity and the discursive practices through which the victim figures in ICJ, I engage with modes of address. ‘Address’ has multiple meanings: it can be a statement or utterance, a form of direction to a recipient, a place or a location marker, it can signify dealing with or discussing a matter and it can indicate where to find information. ‘Address’ gives this chapter a direction. Engaging with the importance of language, I concentrate on two forms of address: first, address as placing points to the way relations between victim and ICJ are established through their respective place-making. Second, address in the sense of communication points to the importance of speech and hearing. Through the address, the victim and ICJ communicate and are thereby in a relation of speaker and hearer. But before arriving there, a few words are needed on representation and performativity. How do victims come into being? And how do victims appear through representation? Representation Representation may be a description of a particular relation. In her 1967 book The Concept of Representation,21 Hanna Fenichel Pitkin examined how representation relates to the interaction between a representative (such as an elected member of parliament) and the represented (such as a constituency). Here, Pitkin approaches representation as a concept that ‘stands for’ (descriptively or symbolically) and ‘acts for’ something or someone who is not present. Representation is

20 Elena Loizidou, Judith Butler: Ethics, Law, Politics (Routledge-Cavendish, 2007) 41. 21 Pitkin, above n 14.

8  The victim’s address a descriptive term when images in representational art are intended to correspond to physical objects, as when a tree in a picture stands for trees in life. Likewise, a symbol like a flag can be said to represent a nation or people.22 Additionally, whereas the descriptive or symbolic representative is primarily an inanimate object, representation can also signify an activity, a continued doing.23 Pitkin explains how representation in this regard centres upon a relation between the person doing the representation, at times called ‘spokesperson’, and the represented.24 Here, representation is an activity done ‘on behalf of ’, ‘for the sake of ’, or possibly ‘in stead of ’ or ‘delegated by’.25 What is significant is the ontological order in all Pitkin’s examples of representation. She notes: As the “re” in “representation” seems to suggest . . . the represented must be somehow logically prior; the representative must be responsive to him [sic] rather than the other way around.26 Pitkin thus understands representation as an activity that explains a certain form of relation between two subject figures – the represented and the representative/ spokesperson – both of whom exist prior to the act of representation. For her, at issue in an act of representation is whether or not it is done ‘in the interest of the represented, in a manner responsive to them.’27 This approach to representation allows an examination of the relation between those who claim to act on behalf of victims in ICJ and the victims themselves. As I discuss in Chapter 4, there is a cohort of lawyers who, through schemes of victim participation at international criminal courts, act ‘on behalf of’ their ‘clients’, i.e. victims. Likewise, some victims come to act on behalf of other victims through their testimonies and claims for reparations. In addition, scholarly comments and legal submissions, particularly in debates on the purposes and functions of ICJ, often proceed under the banner of acting in the interests of victims. Here then, lawyers and scholars act and write on behalf of victims, situating themselves as spokespersons for subjects whose existence is taken as prior. While Pitkin’s understanding of representation brings to light issues that arise from the relation between the ‘represented’ and the ‘spokesperson’, it leaves unexamined the question of how these subjects appeared before the law, before the court, in the first place. As noted, Pitkin’s theory of representation is based on an understanding of the ontological pre-existence of subjects, that there is first a subject and that this subject then acts (or someone acts on its behalf). By extension, this assumes that there already exists a subject, a ‘true’ subject, behind

22 23 24 25 26 27

Ibid. Therein, see chapter 5 in general and page 109 in particular. Ibid. 113. Ibid. chapter 6. Ibid. 126, 131, 133. Ibid. 140. Ibid. 209.

The victim’s address 9 representation. In other words, Pitkin does not extend her examination to the way that the ‘tree’ appeared, or how the constituency (or the member of parliament) came to be in the first place. In a study on the victim in ICJ, this would lead to enquiries into whether represented subjects are ‘true’, as in ‘is this person actually a victim?’ Not only does this assume that there is a ‘true’ represented subject, such as a victim, but also that it is possible, even desirable, to identify this real subject. This is not the approach taken here. Writing to reveal who is and who is not a ‘true’ victim would mean claiming authority in determining the relevance and meaning of experiences for individuals, an authority that not only do I not possess, but if claimed would require erasing my own positionality.28 Nor is my purpose here to examine the ‘true interests’ of the represented subject, with an aim of advancing criticism or praise of the institution that has acted as spokesperson.29 When focusing on the relations between representatives and represented in the context of ICJ and victims, my purpose is rather to examine the practices that regulate the addresses of the victim in ICJ, practices that effectively bring the victim subject into being. Here I turn to the work of the political theorist and philosopher Judith Butler. Butler’s work is useful for the way it enables approaching the victim as a figure whose subjectivity as victim in relation to ICJ is inaugurated through language. In her study on gender, Butler takes issue with a strand of feminist theory that had, until that point, proceeded to advance a fuller or more adequate representation of women. This strand approached ‘women’ as ‘an agency that claims ontological priority’30 in a similar way to that of Pitkin. In contrast, Butler is interested in the regulatory practices that constitute gender identity, examining the extents to which ‘“identity” [is] a normative ideal rather than a descriptive feature of experience.’31 So while Pitkin held as a premise of representation the prior existence of the represented, Butler instead examines the practice that brings the represented into being. What is notable for Butler is the way ‘representation is extended only to what can be acknowledged as a subject. In other words, the qualifications for being a subject must first be met before representation can be extended.’32 For my purposes, this suggests that the figure of the victim only emerges if and when it has fulfilled the perceived qualifications and requirements of a ‘victim’ – even when the victim figures in relation to a spokesperson. Here, representation is thus not understood as an immediate mirror act or repeat presentation, but a mechanism that by linking certain figures with pre-established qualifications represents these as victims. As the qualifications may differ across places and times, some of those who figure as 28 See Gayatri Chakravorty Spivak, ‘Can the Subaltern Speak?’ in Cary Nelson and Lawrence Grossberg (eds), Marxism and the Interpretation of Culture (Macmillan Education, 1988) 271. 29 This form of analysis can be seen particularly in literature that criticises institutions (such as international criminal courts) for not adequately representing or responding to the needs of certain groups (such as ‘women’). 30 Butler, Gender Trouble, above n 14, 22. 31 Ibid. 23. 32 Ibid. 2, noting that ‘representation’ also ‘serves as the operative term within a political process that seeks to extend visibility and legitimacy to women as political subjects’.

10  The victim’s address victims at one place may not do so elsewhere. In other words, it is by meeting the normative ideals of ‘victim’ that someone is placed in a relationship with ICJ and thereby brought into being as victim subject. It is not the subject that is prior but the address in which s/he will be domiciled. Throughout the book, I am interested in the way discursive and regulatory practices constitute what is understood as ICJ and particular victim figures therein. At times, this means attending to subject positions of the represented and the representative, and to the relation between the two. This relation is based upon activities that call for attention. In the chapters that follow, I approach the victim through practices of institution making, translation, participation and outreach, each of which brings subjects into being, and each of which, to varying degrees, holds relations between representatives and represented. I examine these practices as addresses where the victim resides and within which the victim speaks. And although the focus lies on the victim, by examining the victim’s address I come to read the constitution of not only the victim but also ICJ. To further the analysis of the ways in which the victim and ICJ relate, I now turn to the ways in which victim subjects come into being through the performative practices of ICJ. Performativity Victims act within ICJ and also enact its practices. The linguistic practices that hold ICJ together do not only function through the mechanisms of representation, but also through the way subjects are performatively produced. To more fully describe the victim and the way the victim figures in ICJ, it is necessary to give an account of how subjects come into being. For this, I again turn to the work by Judith Butler.33 In Bodies That Matter, Butler describes the way a subject becomes intelligible: To the extent that the naming of the ‘girl’ is transitive, that is, initiates the process by which a certain ‘girling’ is compelled, the term or, rather, its symbolic power, governs the formation of a corporeally enacted femininity that never fully approximates the norm. This is a ‘girl’, however, who is compelled to ‘cite’ the norm in order to qualify and remain a viable subject. Femininity is thus not the product of a choice, but the forcible citation of a norm, one whose complex historicity is indissociable from relations of discipline, regulation, punishment.34 What Butler suggests in this passage is that a certain subject – here a ‘girl’ – comes into being by being named, but in order to ‘qualify and remain a viable subject’ must also ‘cite’ the norm of this subject. This points to the way representation is 33 Not to be confused with a performance: while a performance is an act done by a subject who exists prior to the act, the performative enacts the subject into being. See Butler, ‘Gender as Performance’, above n 14. 34 Judith Butler, Bodies That Matter: On the Discursive Limits of ‘Sex’ (Routledge, 1993) 177.

The victim’s address 11 extended only to those who meet prior qualifications (as discussed above), but here Butler goes further into the constitution of subjects. A name is called and, through citing the norm attached to the name, the named subject becomes intelligible. This is the performatively produced subject. Butler discusses the performative initially with respect to gender, but her insights into the practice go much further. In similar ways to how Butler discusses the ‘girling’ of a girl, it is possible to examine the processes of ‘victiming’ a victim. In contrast to the ‘victimisation’ of a person, which in social theory points to processes whereby a subject is victimised, with the term ‘victiming’ the performative dimension is emphasised. In contrast to victimisation, the process of victiming brings out the way a subject, in order to qualify and continue to qualify as a victim, must repeatedly cite the norms of ‘victim’. This comes out most clearly in my discussion on victim participation in Chapter 4. And as Butler points out in the last sentence quoted above, there is a ‘forc[efulness]’ and a ‘complex historicity’ of the citation of a norm, something which is equally relevant for the victiming of victims. But while there is a violence in the regulated practices, there are also tensions and slippages that need to be examined. Importantly, Butler points to the way subjectivity is a ‘doing’ – a doing that is ongoing. As she puts it, gender proves to be performative – that is, constituting the identity it is purported to be. In this sense, gender is always a doing, though not a doing by a subject who might be said to pre-exist the deed . . . There is no gender identity behind the expressions of gender; that identity is performatively constituted by the very “expressions” that are said to be its results.35 It is significant that subjectivity is enacted – a ‘doing’. Expressions that for someone like Pitkin are approached as effects of the subject are here considered constitutive for the subject. Thus, whereas for Pitkin there are subjects who then communicate with other subjects, for Butler subjects become through communication. In pointing to the workings of communication and expression, Butler highlights the significance of language in the constitution of subjects and in so doing, she picks up the work of Louis Althusser. In his work on ideology, Althusser was interested in the ways in which subjects are ‘recruited’ in ideology,36 and suggested that this takes place through an act he called interpellation. Through this act of interpellation, a person is brought into subjectivity. In his classic scene of interpellation, a person is inaugurated as a subject by responding to a policeman’s hailing. A policeman calls out ‘hey, you there’, and by turning to the voice a person is constituted as a subject.37 This simple image gives weight to language and

35 Butler, Excitable Speech, above n 14, 34. 36 Louis Althusser, ‘Ideology and Ideological State Apparatus (Notes towards an Investigation)’ in Luis Althusser, Lenin and Philosophy and Other Essays (Ben Brewster trans, Monthly Review Press, 1971) 127. 37 Ibid. 174.

12  The victim’s address voice, as it is the utterance of the police that initiates the reaction which brings the subject into being. For this book, the scene of interpellation provides a way to approach the linguistic practices that constitute the victim. Importantly, it is by being addressed (named) as ‘victim’ in and by ICJ that a person comes to have both subjectivity and the standing to partake in the workings of ICJ. As Butler points out, ‘Being called a name [whether injurious or not] is . . . one of the conditions by which a subject is constituted in language.’38 While the scene of interpellation affirms the significance of language, this approach to subjectivity as something inaugurated through a call – an address and a name – leaves many questions unanswered. Interpellation suggests the inauguration is static, where an anonymous voice acts upon a person and thereby brings it into subjecthood. As Butler points out, the voice in Althusser’s scene appears ‘almost impossible to refuse.’39 This would suggest that the call functions automatically and that a name always inaugurates. This cannot account for the ways in which names are resisted or challenged. Furthermore, the image of the interpellative moment does not adequately describe how the person who does the calling (Althusser’s policeman) exists and has a voice. Nor does it describe how the two persons relate, or whether the hailed object may resist or refute the call. Althusser’s interpellation is useful for its emphasis on voice and language, but falls short when providing an account of the ways in which people who are called (as) victims can challenge the particular boundaries or connotations to that name, let alone refuse or identify themselves with that name. For Butler, Althusser’s image of interpellation is made more productive when read alongside speech theorist J. L. Austin’s theory of performativity.40 The starting point of Austin’s theory is that not all statements are constatives, verifiable as true or false, but that some are instead performatives; they ‘do what they say.’ For example, it is by saying ‘I do’ that one becomes a husband or wife, or by proclaiming ‘I name this ship the Queen Elizabeth’ that the ship is named. A performative does what it says in one of two ways (or both): either it is an illocutionary act whereby the saying is a kind of doing, as when the judge proclaims ‘I sentence you’, or it is a perlocutionary act whereby the saying gives certain effects or consequences, as when a person feels remorse, guilt or relief upon hearing the sentence. While it is the consequences that determine the force or ‘success’ of the perlocutionary, illocutionary acts are empowered by their convention. For example, only if ‘I sentence you’ is uttered by a judge – an ‘appropriate person’ – and within the court setting – a recognised forum – will the illocutionary performative be successful. The key here is thus convention. Drawing on Jacques Derrida’s reading of Austin,41 Butler picks up Austin’s insight on statements that ‘do what they say’, yet departs from Austin by arguing

38 39 40 41

Butler, Excitable Speech, above n 14, 2. Ibid. 31. Ibid. 24–5. See Loizidou, above n 20, 31–5.

The victim’s address 13 that all language is performative. For Butler, what is of particular significance in Derrida’s reading is the way he conceives of a split between the author and the performative deed. According to Derrida, a speech is detached from the person who gives the speech and exists independently through the practice of citation or reiteration. Yet, although the citations exist independently, it does not mean that all speech is successful. Rather, what makes a speech act effective is the way it is attached to an event, ‘singular and present’. As Elena Loizidou explains: What gives the event its “eventness”, its essence if you like, is the very fact that it makes itself recognised through the interruption of language, iteration and citation, repeating with différence (in difference and by differing) what is already there.42 A particular speech act becomes effective through its association with an event that is an ‘interruption of language’ but nevertheless ‘repeat[s] with différence . . . what is already there’. It is at this point that Butler brings back Althusser. Like with Austin and Derrida, for Althusser the power of language turns on the ritual or convention through which utterances are cited and recited. As Butler points out, when Althusser’s policeman hails the subjects, s/he is citing the convention of hailing . . . The act “works” in part because of the citational dimensions of the speech act, the historicity of convention that exceeds and enables the moment of its enunciation.43 The convention and its historicity provide a ritualistic dimension to the moment of interpellation, adding a temporal dimension that also explains how the policeman appears on the scene as an already-formed subject. The inauguration is not immediate, inevitable or static; it is a ritual that is constituted through repetition but which both ‘conserves and reconfigures the code.’44 Because of this historicity, this temporality of citation, the possibility for a slight reconfiguration or difference within the ritual always remains. With this moment lies a possibility of resistance, revealing the agency of the subject. The temporality of the subject’s response, or of his/her citation, accords a figure a certain agency in enacting his/ her subjecthood. Hence, the victim responds to an address, a promise of justice delivered through ICJ that comes with the name ‘victim’. But the name is not simply ‘acted on’ the subject. It is through rituals wherein the figure cites as well as refigures victimhood that the victim in ICJ becomes intelligible. Notable in Althusser’s scene of interpellation is the classic hierarchy whereby it is the personification of law – the police – that inaugurates the subject. Incorporating this approach in this book would suggest that it is an agent of ICJ who calls 42 Ibid. 34. 43 Butler, Excitable Speech, above n 14, 3. 44 Loizidou, above n 20, 39.

14  The victim’s address out to the victim, and this is how I have so far depicted it. But by drawing on Butler’s theory of performativity, the hierarchy is made more unstable. By pointing out the blindness to the subjectivity of the policeman in Althusser’s scene, Butler calls attention to the need to account for the perceived ‘caller’ too, which in my account are various actors within ICJ. Butler repeatedly draws on Nietzsche’s claim that ‘there is no “being” behind doing, effecting, becoming; “the doer” is merely a fiction added to the deed – the deed is everything.’45 It would be erroneous to claim that ICJ is something that existed and then spontaneously called upon victims, that it acts as a subject that pre-exists the address. It follows from my approach to victims as constituted through discursive practices that also ICJ is shaped and formed as an entity through linguistic practices of addressing subjects as perpetrators, victims, bystanders and rescuers. ICJ operates as a citational network, and it is the address, or rather the repeated addresses understood as communications between the subjects, that form the entity of ICJ. There is no subjectivity before or beyond practices. And so, when approaching the victim in ICJ, I examine the practices that constitute both entities. This involves reading acts of representation and unpicking the emergence of subjects through the performative. As I will demonstrate in subsequent chapters, the figuring of the victim in ICJ is a process that involves both repetition and difference, practices of citation and speech acts. I suggest these are modes of address. In doing so, I point to the way the practice is one that involves both communication and a form of placing in relations. With this in mind, I now shift genre slightly, from unfolding theoretical concepts to describing some of the addresses that are significant for understanding the practices that constitute victims in ICJ. The development of ICJ and a particular victim figure therein is a continuing process. I describe some of the places in which victims have figured, and the particular ways victims have been represented therein. In doing so, I argue that certain tensions and slippages are produced within victim figures in the enterprise of ICJ, slippages that reappear at the ECCC. The ECCC too is partaking in a citational network that regulates the practices of victiming. The following two sections are dedicated to unfolding some of these networks.

Iconic trials That four great nations, flushed with victory and stung with injury stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law is one of the most significant tributes that Power has ever paid to Reason. Justice Robert H. Jackson, US prosecutor at the Nuremberg International Military Tribunal (IMT)46 45 Quoted in Butler, Gender Trouble, above n 14, 34. 46 Robert H. Jackson, Opening Statement before the International Military Tribunal (21 November 1945) The Robert H. Jackson Center, www.roberthjackson.org/speech-and-writing/openingstatement-before-the-international-military-tribunal (‘Jackson Opening Address’).

The victim’s address 15 When I stand before you here, Judges of Israel, I am not standing alone. With me are six million accusers. . . . Their blood cries out, but their voice is not heard. Therefore I will be their spokesman and in their name I will unfold the awesome indictment. Attorney General Gideon Hausner at the Israeli trial against Eichmann47 Two iconic trials with two iconic opening speeches. The opening address at the International Military Tribunal (IMT) at Nuremberg by US Prosecutor (and Supreme Court Associate Justice) Robert H. Jackson stands as a milestone in ICJ for its eloquent invocation of the power of law as a form of reason. In ‘stay[ing] the hand of vengeance’, the victors of World War II called upon reason, understood as codified in law, to pass judgment on the leaders of the Nazi regime for its committed atrocities. This turn to law and the affirmation that ‘crimes against international law are committed by men, not by abstract entities’48 are represented as landmarks in fostering post-conflict justice. Here, the suffering experienced by victims was told by the prosecutors and by witnesses, of whom few self-identified as victims. In contrast, the opening address by Attorney General Gideon Hausner at the Israeli trial against Adolf Eichmann49 explicitly invoked victims as the figure in whose name the trial proceeded. This was a trial conducted in the name of victims and then driven by victim testimonies. The trial became iconic for the way it focused on the Jewish victims of the Nazi regime and for inaugurating what Annette Wieviorka termed L’Ère du témoin – the Era of the Witness.50 This has been considered a paradigm shift in the giving and hearing of testimonies by survivors of the Shoah. The two trials are taken in scholarship on victims and ICJ to signify opposing poles of a spectrum in two fundamental ways. First, the trials differ fundamentally in the way the victims relate to the telos, or raison d’être,51 of the trial. Second, the relationship between victims and evidence that come together in the role of victim-witness differ drastically in the two trials. However, while these two differences have led some to claim that the difference is one between an absence and

47 Transcripts of Proceedings, Attorney General v Adolf Eichmann (District Court of Jerusalem, Criminal Case 40/61, 17 April 1961), www.nizkor.org/hweb/people/e/eichmann-adolf/ transcripts/Sessions/Session-006-007-008-01.html (‘Eichmann Transcripts’). 48 ‘“Judgment” in International Military Tribunal’, Trial of the Major War Criminals Before the International Military Tribunal, Nuremberg 14 November 1945–1 October 1946 (The Tribunal, 1947) vol. 1, 171, 223. 49 See, for example, Hannah Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil (Penguin Books, first published 1963, 2006 ed); Lawrence Douglas, The Memory of Judgment (Yale University Press, 2001); Shoshana Felman, ‘Theaters of Justice: Arendt in Jerusalem, the Eichmann Trial, and the Redefinition of Legal Meaning in the Wake of the Holocaust’ (2001) 27(2) Critical Inquiry 201; Martti Koskenniemi, ‘Between Impunity and Show Trials’ (2002) 6 Max Planck Yearbook of United Nations Law 1. 50 Annette Wieviorka, The Era of the Witness (Jared Stark trans, Cornell University Press, 2006) [trans of: L’Ère du témoin (first published 1998)]. 51 On victims as telos/raison d’être of ICC, see Kendall and Nouwen, above n 11.

16  The victim’s address a presence of the victim figure, paying closer attention to the various forms of representation problematises this claim. Thus, I turn to examine the representations of the victims in the two trials by examining the way they appear through relationships with the telos of the trials, with ‘other’ victims and with the actors of the trials. The Nuremberg IMT and the absent victim In contemporary scholarship about ICJ and the victim, the victim at the Nuremberg IMT is represented as an absent figure.52 Susanne Karstedt, for example, positions the IMT as a point of departure on ‘the road from absence to presence.’53 In the tribunals after World War II that dealt with the aftermath of the war and genocide, victims held a ‘near-complete absence.’54 Typically, the proceedings at the Nuremberg IMT were ‘conducted without their presence.’55 The voices heard at the trial were not those of victims but of perpetrators.56 For Sam Garkawe, this ‘victim-free trial’57 made the trial parsimonious, as the presence of victims would ‘have enhanced the proceedings . . . [,] provided a greater sense of justice . . . [and made] the trial much more dramatic and memorable.’58 For him, the lack of active involvement by victim survivors was simply ‘unjust’.59 In contrast to the assertion by Karstedt and Garkawe that victims at Nuremberg were characterised by an absence, I suggest that the question of the role of victims depends upon whom the victim is considered to be, and that victim identity constantly changes – slips – with regards to victims at Nuremberg. First, there is an absence. During the trial’s almost year-long proceedings, very few victim-witnesses60 addressed the court. A Jewish writer and partisan fighter called by the Soviet prosecution told of the persecution of the Jews of Vilna61 and a French resistance veteran, who had spent three years at Auschwitz, told 52 This was less the case in the successor trials to Nuremberg under Control Council Law 10, where the plight of victims was more frequently invoked by the prosecutor. See Paul Weindling, ‘Victims, Witnesses, and the Ethical Legacy of the Nuremberg Medical Trial’ in Kim C. Priemel and Alexa Stiller (eds), Reassessing the Nuremberg Military Tribunals: Transitional Justice, Trial Narratives, and Historiography (Berghan Books, 2012) 74. 53 Susanne Karstedt, ‘From Absence to Presence, From Silence to Voice: Victims in International and Transitional Justice Since the Nuremberg Trials’ (2010) 17(1) International Review of Victimology 9, 9. 54 Ibid. 10. 55 Ibid. 56 Ibid. 10, 14. 57 Sam Garkawe, ‘The Role and Rights of Victims at the Nuremberg International Military Tribunal’ in Herbert R. Reginbogin and Christoph Safferling (eds), The Nuremberg Trials: International Criminal Law Since 1945 – 60th Anniversary International Conference (K. G. Saur, 2006) 86, 93. 58 Ibid. 88. 59 Ibid. 89. 60 Of these few, most were French former interns at concentration camps and three were Holocaust survivors. See testimonies in IMT, above n 48, vol. 5, 167 (from 11 January 1946) and vol. 6, 183 (from 25 January), 231 (28 January), 242, 263, 278 (29 January), 289, 302. 61 Testimony by Abram Suzkever in Michael R. Marrus, The Nuremberg War Crimes Trial 1945–46: A Documentary History (Bedford Books, 1997) 197–201.

The victim’s address 17 the court of the terrible regimen of the camp, the medical experiments and the gassing of Jewish people.62 According to Karstedt, this lack (or at least small number) of victim-witnesses is directly linked with the lack of (Jewish) survivors in Germany at the time of the trial. Of those who had survived, many had left Germany. This meant that not only were there few witnesses, there were also few Jewish victims who sat in the audience of the trial and who participated in the public debate.63 Thus, based on this (almost) absence of Jewish survivors as witnesses, ‘victims’ are said to have been absent or silenced at the Nuremberg IMT. Is, however, the lack of victim-witnesses and of Jewish survivors in the audience necessarily an absence of victims? Here is a slippage between the presence of victims and the presence of survivors, where the absence of (or more accurately the few) survivors and survivor testimonies are taken as a lack of victims tout court. In certain ways, victims were highly manifest during the trial. In the indictment, references to murder and to ill-treatment are elaborated at length. The text of the counts on war crimes and on crimes against humanity describes the means of killing, including gassing, beating and starvation.64 During the trial, the prosecution presented their case, not based upon witness testimonies, but primarily through written material, records of the defendants’ ‘own making,’ whose authenticity could not be challenged.65 In these Nazi documents were detailed accounts of the taking and mistreatment of hostages66 and the poor conditions at camps, and there were numerous references throughout the proceedings to the killings of ‘civilians’. Defendants appeared as witnesses and told of the killings. For example, Auschwitz commander Rudolf Höss confirmed the ‘destruction’ of ‘2 million Jews’ at Auschwitz.67 It was in this way that victims appeared during the trial – through references and spokespersons. When Karstedt claims that ‘there was no visible presence of victims at the IMT, not even of representatives who could speak on their behalf,’68 she ignores the victims who figured through the evidence, in the arguments made by the prosecution and the testimonies by the defendants. While there were few victims who addressed the court directly, victims were placed at the centre of the proceedings through descriptions of the crimes and their evidence, spoken on their behalf. Although Karstedt correctly observes that there were very few victim-witnesses and no lawyers who

62 63 64 65

Testimony by Marie Claude Vaillant-Couturier: ibid. 154–7. Karstedt, above n 53, 12. IMT, Indictment, 6 October 1945, Counts 3 and 4 in Marrus, above n 61, 57–70. Justice Jackson in Stephen Breyer, ‘Crimes Against Humanity, Nuremberg 1946’ (1996) 71(5) New York University Law Review 1161, 1162. For Sonali Chakravarti, this absence is tied together with the way the Nuremberg IMT stands for a ‘rationalistic idea of justice’. This court does not proceed as ‘a model for catharsis or reconciliation,’ and ‘highlights neither education nor social transformation.’ Sonali Chakravarti, ‘More Than “Cheap Sentimentality”: Victim Testimony at Nuremberg, the Eichmann Trial, and Truth Commissions’ (2008) 15(2) Constellations 223, 225. 66 Secret report addressed to Göring on 15 February 1940, quoted by French Prosecutor Charles Dubost in Marrus, above n 61, 152. 7 Testimony by Rudolf Höss: ibid. 202–7. 6 8 Karstedt, above n 53, 13. 6

18  The victim’s address represented victim clients of the kind we see today at the ICC and ECCC,69 it is difficult not to hear the suffering of victims in the reading of evidence, such as that on the torture and killing of 30,000 hostages.70 Victims also figured as part of the telos of the trial. However, this victim is not whom we today might consider the primary victim of the Nazi rule. To get a sense of the telos of the tribunal and its proceedings, consider the opening address of Justice Jackson. While all four prosecutors gave opening addresses,71 it is that by US prosecutor Justice Jackson that has become iconic. For him, the trial was held because ‘the wrongs which we seek to condemn and punish have been so calculated, so malignant, and so devastating, that civilization cannot tolerate their being ignored, because it cannot survive their being repeated.’72 Moreover, the purpose of holding a trial was to ‘stay the hand of vengeance.’73 Karstedt takes Justice Jackson’s reference to vengeance to be a fear that victims would, as had occurred in France and Belgium, turn against former collaborators for revenge, something that had ‘instilled widespread fears of disorder, violence and massive conflicts.’74 Alongside the victim figure described above by Karstedt as silenced because of absence, here is another figure that is silenced because of a potentially vindictive nature. The oscillation between absence and vindication in the victim figure becomes clearer when taking into consideration the focus and scope of the trial. Karstedt’s absent victim is that of the survivor of the Shoah. According to her, their absence led to a state of denial in Germany and elsewhere about the crimes against the Jewish people.75 As pointed out above, there were few victim-witnesses and even fewer who had been victimised because of their Jewish identity. However, the main focus at Nuremberg, the ‘crime of crimes’ articulated in the IMT Charter, considered by the Tribunal to contain the ‘accumulated evil of the whole,’76 was not crimes against humanity (which at the time encompassed genocide) as might be expected today, but the crime against peace, now called the crime of aggression. This is the crime that, for US prosecutor Jackson, ‘comprehends all other lesser crimes.’77 Here is a victim figure, but not ‘humanity’ and not one targeted because of a Jewish identity. It is not that the crimes against the Jewish people were completely ignored at the trial. In his opening address, Justice Jackson dedicated a section to ‘crimes

69 See Chapter 4. 70 Secret report addressed to Göring on 15 February 1940, quoted by French Prosecutor Charles Dubost in Marrus, above n 61, 152. 71 For French prosecutor Francois de Menthon, the trial proceeded on the basis of ‘the craving for justice of the tortured peoples’. Francois de Menthon, opening address 17 January 1946 in Marrus, above n 61, 89. 72 Jackson Opening Address, above n 46. 73 Karstedt, above n 53, 12. 74 Ibid. 12–13. 75 Ibid. 21. 76 Arendt, above n 49, 255. 77 Gerry Simpson, War, Law and Crime: War Crimes Trials and the Reinvention of International Law (Polity Press, 2007) 145.

The victim’s address 19 against the Jews,’ stating that the ‘most savage and numerous crimes planned and committed by the Nazis were those against the Jews . . . [whom] Nazis were fanatically committed [] to annihilate.’78 Referring to the ‘conspiracy or common plan to exterminate the Jew’, Justice Jackson states that ‘History does not record a crime ever perpetrated against so many victims or one ever carried out with such calculated cruelty.’79 But as Gerry Simpson has pointed out, ‘this was [considered] largely a product of one over-arching scheme to wage a war of aggression.’80 As Jackson himself had argued during the setting-up of the tribunal, this isn’t merely a case of showing that these Nazi Hitlerite people failed to be gentlemen in war; it is a matter of their having designed an illegal attack on the international peace . . . and the other atrocities were all preparatory to it or done in execution of it.81 The ‘matter’ was thus one of ‘international peace’, and Nazi Germany’s ‘illegal attack’ on it was the foremost of crimes committed. When this focus on the crime of aggression is taken into consideration, it is less surprising that the victims of persecution, murder and destruction appear only through secondhand reference. The primary victim of the Nazis as represented through the Nuremberg IMT was not those of the Shoah or any other form of persecution, but the victim of aggression. So who is this figure victimised by aggression? For Justice Jackson, the victim was ‘civilisation’; for French Prosecutor de Menthon, it was ‘the spirit . . . all spiritual, rational, or moral values’ that distinguishes humanity from barbarism.82 Civilisation perhaps, spirit perhaps, or in a less ideational vein, the target – the victim – of the aggressive war was the group of Allied states. From this perspective, the Nuremberg IMT tells us several things about representations of victims. First of these is that representations are unstable and changeable. In contemporary readings of the trial, the absence of victimwitnesses of the Shoah that Karstedt and Garkawe lament is striking. But the lack of witness-survivors who, through individual testimonies and appearances – addresses – represent all the victims of the Shoah, is not the same as a general absence of victim figures. The victim Jackson produces through his speech, which is then reinforced during the trial, is not the individual or collective victim of persecution but the Allied states that had been targeted by an aggressive war. It is in their name that the trial was conducted. So while the Nuremberg trial has gone down in history as the event recognising that crimes are committed by men and not abstract entities, it was precisely as an abstract entity that the victim figured.

78 79 80 81 82

Jackson Opening Address, above n 46. Ibid. Simpson, above n 77, 145. Quoted in Marrus, above n 61, 122. de Menthon, opening address 17 January 1946 in Marrus, above n 61, 91.

20  The victim’s address The Eichmann trial and the victim as survivor testifier In contrast to the Nuremberg IMT, at the Eichmann trial 15 years later the crimes committed against the Jewish people were the focal point of the proceedings – and beyond. This second iconic trial with an iconic opening address is that against Adolf Eichmann, held in Israel in 1961. While both the Nuremberg IMT and the trial against Eichmann dealt with the atrocities of the Nazi regime, they appear with respect to victims as fundamentally different in several aspects. At the Eichmann trial, the victim figured in an explicit way as the foundation of the trial. In his dramatic opening address, Israeli Attorney General Gideon Hausner positioned himself and the prosecution as spokespersons – representatives – for the six million deceased victims.83 For him, it was a trial that went beyond the mere finding of guilt or innocence. As he explained after the trial, he ‘knew we needed more than a conviction; we needed a living record of a gigantic human and national disaster.’84 The trial was the forum where this record would be created and hence, the victims of the Shoah were represented as the figure behind the trial. Appearing then at the Eichmann trial is a victim, presented as the rationale for the trial, but one whose conditions for appearance were in constant negotiation. Victims were not only placed as the telos of the trial, but also acted as its drivers through testimonies. During the 14 weeks of the trial, half of the trial sessions – 62 of 121 sessions – were devoted to the 100 witness testimonies. Ninety of these acted as victim-witnesses, having survived Nazi concentration camps.85 The victim here appeared as a survivor, narrating their story. As described by Lawrence Douglas, Attorney General ‘Hausner encouraged testimony to take a narrative form, permitting the witnesses to speak for minutes on end between brief questions.’86 Prompted by the (few) questions by Hausner, the testimonies were framed to produce a certain figure, not vulnerable and weak, but a hero, constructing what Lawrence Langer calls a ‘heroic memory’, ‘a version of Holocaust reality more necessary than true.’87 Here, the representations of the victim of the Shoah as absent or silenced were challenged, calling into effect a speaking victim subject. Victims at the Eichmann trial spoke: through their testimonies, through the speech of Attorney General Hausner, and through a presence as audience at the trial.88 Most photographs from the trial are not of Eichmann or even of witnesses, but of courtroom spectators89 where members of the audience gasp in horror, tightly holding handkerchiefs or sobbing. The event of the Eichmann trial was in many ways

83 Eichmann Transcripts, above n 47, 17 April 1961. 84 Hausner in Douglas, above n 49, 106. 85 Arendt, above n 49, 223. Note that not all witnesses were victims. For instance, an American judge who had at the Nuremberg IMT questioned the defendants testified here on remarks made by Hermann Göring on Eichmann. 86 Douglas, above n 49, 134. 87 Lawrence Langer quoted by Douglas, above n 49, 128. 88 Ibid. 109. 89 Ibid. 107–9.

The victim’s address 21 made through the presence of the audience. Thus, the example of the Eichmann trial provides a sharp contrast to the Nuremberg IMT: here the victim was an individual and a collective of individuals with a manifest presence either through the frequent references to the dead, or as a survivor who testified or sat in the audience. Commentators were split over how to read this manifest presence of victims at the Eichmann trial. Hannah Arendt, perhaps the most famed critic of the trial, dismissed the victim testimonies as ‘time consuming’ and legally irrelevant.90 According to Arendt, the testimonies went beyond and against ‘the purpose of a trial [which] is to render justice, and nothing else.’91 The victims appeared as a distraction, and a potentially dangerous one, and should have had no active role to play in the proceedings. Instead, she found their role at the Eichmann trial to be dangerously close to complicity in a state orchestrated show trial, similar to those in the Soviet Union.92 For Douglas, the Eichmann trial does something else than simply putting up a show on behalf of the state. When he turns to the Eichmann trial, it is not because he ignores the ways in which the trial was used for the state’s purposes. On the contrary, he makes a point of Hausner’s orchestration of the testimonies that figured the victim as a hero of resistance and which ran a specific ideology of Israeli nationhood and Jewish identity.93 Nonetheless, Douglas argues that this orchestration was not completely successful, but resisted by the survivors themselves. Through their testimonies, survivors such as Michael Podchlewnik, who seemed to have ‘survived not as a result of his personal will, but in spite of it,’94 infused tensions in the heroic images of the victim survivor.95 These tensions demonstrate the possibility of resistance to the interpellative call, as discussed by Butler. Hausner’s attempts to move the victim from a sign of weakness to a symbol of heroism were not completely successful. The victims’ addresses – their position as heroes and their testimonies – were under negotiation. It is despite (or because of) this that Douglas attends to the Eichmann trial. For him, ‘it transformed understandings of what the law can and should do in the wake of traumatic history.’96 What he demands or seeks from a trial is not only that it does ‘formal justice to the perpetrators’ but also ‘representational justice to the Holocaust qua event.’97 Against Arendt’s legalistic dismissal of the victim testimonies as (irrelevant) evidence of Eichmann’s guilt, Douglas argues that an equally crucial question to ask is ‘did the trial do justice to the testimony of the survivors?’98 For him, the Eichmann trial illustrates ‘competing conceptions of the law itself.’99 On the one hand, trials serve as the reinstatement

0 9 91 92 93 94 95 96 97 98 99

Arendt, above n 49, 122. Ibid. 253. Ibid. 15. Douglas, above n 49, 3, 156 Ibid. 169. Ibid. 156–73. Ibid. 174. Ibid. 113 (emphasis added). Ibid. 113. Ibid. 260.

22  The victim’s address of ‘rule-bound authority . . . by bringing perpetrators of atrocity to justice.’100 But on the other hand, a trial ‘produces and suppresses narrative and clarifies and obscures history,’101 ‘serv[ing] the interests of history and memory.’102 The court, in this aspect, becomes ‘less . . . a forum for judging a specific defendant than . . . an occasion for narrative, a public event and solemn forum staged to satisfy the need of those who have survived to bear witness.’103 For Douglas, then, the victim serves as a figure whose address symbolises the different conceptions of law. Depending on these conceptions, the speech of the victim is given different meanings. The victim’s placing within the trial, both physically and symbolically, provides a link to the very purpose of the trial. The competing conceptions of law and the trial – between the parties of the case, between Douglas’ narrative justice and Arendt’s legalism, and between Hausner’s nationhood of heroes and the survivor’s testimonies – are seized within the figure of the victim as a survivor testifier. In slightly different ways, Hausner and Douglas both see in the victim a figure in whose name a trial proceeds and justice should be and can be served. Against this stands what is described as a legalistic conception of the law and trial, wherein the surviving victim plays at most a limited role, and only in relation to the determination of the guilt of the accused. In this way, within the figure of the victim are manifold and at times contradictory representations, between which the victim constantly slips. Together, the trials against Eichmann and of the Nuremberg IMT illustrate how the practices that represent victims are determined to some extent by the address of the institutions. It is not only the judicial institutions that regulate the appearance of victims, but also those writing about it. The different trials, the various actors of the trial, the commentators of the trials – they all present varying accounts of victims, producing alternating and at times conflicting representations of victims. At the same time as norms are developed, there remains the possibility for challenge and difference. Accordingly, the places and forms of speech accorded to victims at these trials appear as potential tensions that continue to be played out in ICJ, at the ECCC and elsewhere. In now turning to contemporary international criminal trials, I bring with me these competing images of the victim.

Ordinary international criminal trials Today, ICTs are an ordinary response to the aftermath of conflicts and atrocities. Despite being presented as extraordinary measures to address extraordinary events, only acting as ‘complementary’,104 and despite being highly selective

100 101 102 103 104

Ibid. Ibid. 113. Ibid. 260. Ibid. 126. As per Rome Statute art 1, the ICC is ‘complementary to national criminal jurisdictions’.

The victim’s address 23 in scope,105 ICTs have since the mid-1990s become an ordinary feature of the processes of the ‘international’ in relation to conflicts and atrocities.106 The early ad hoc international criminal tribunals for Rwanda107 and the former Yugoslavia108 have been supplanted by the permanent ICC, and by several socalled internationalised or hybrid courts dealing with particular incidents109 or places.110 These institutions provide for a citational network in which victims appear as a question, a concern, an entry point into further debates on the purposes and promises of ICJ. With each tribunal, each trial, each scholarly intervention, the representation of victims shifts slightly. In the following two sections, I discuss a few ways that victims figure in contemporary scholarship on ICJ. The purpose is to provide some background to the ways that victims have figured as a topic of concern, something that will inform my examination of the practices of victiming at the ECCC in the coming chapters. I conceive of the ways of figuration here as addresses, that is, as modes of speech and of place. I attend to the positions from which victims speak and then turn to the practice of speaking on behalf of victims. By basing my discussion primarily on scholarly writings, I also seek to demonstrate how scholars contribute to the citational networks of ICJ. I suggest that tracing the victim through the addresses – the locations and forms of speech – in this network elucidates the constant slippages in the figure of the victim. That is, ‘who’ the victim is, and the position from which s/he is speaking, constantly shifts. Speaking positions Victims address trials. Not all victims raise their voices during trials and not all trials hear victims, but victims’ speech during trials is given a central role in contemporary scholarship on ICJ. Recalling Butler’s insight into the performative, it is by citing and reiterating previous practices that something becomes ‘successful’

105 See, for example, Edwin Bikundo, ‘The International Criminal Court and Africa: Exemplary Justice’ (2012) 23(1) Law Critique 21; Schwöbel, above n 11; Christian De Vos, Sara Kendall and Carsten Stahn (eds), Contested Justice: The Politics and Practice of International Criminal Court Interventions (Cambridge University Press, 2015). 106 See, for example, McMillan, above n 11; Immi Tallgren, ‘The Voice of the International, Who Is Speaking?’ (2015) 13(1) Journal of International Criminal Justice 135. 107 ICTR, established by SC Res 955, UN SCOR, 49th sess, 3453rd mtg, UN Doc S/RES/955 (8 November 1994) annex. 108 ICTY, established by SC Res 827, UN SCOR, 48th sess, 3217th mtg, UN Doc S/RES/827 (25 May 1993). 109 For example, Special Tribunal for Lebanon, established by SC Res 1757, UN SCOR, 62nd sess, 5685th mtg, UN Doc S/RES/1757 (30 May 2007), dealing only with the killing of former Lebanese Prime Minister Rafic Hariri and 21 others. 110 For example, Special Court for Sierra Leone, established by SC Res 1315, UN SCOR, 55th sess, 4186th mtg, UN Doc S/RES/1315 (14 August 2000); Kosovo Specialist Chambers, established through an amendment to the constitution of the Republic of Kosovo (3 August 2015) following the Law on Ratification of the International Agreement Between the Republic of Kosovo and the European Union on the European Union Rule of Law Mission In Kosovo (23 April 2014).

24  The victim’s address and granted authority.111 Yet, testimonies in ICJ are situated within a range of contexts with distinct practices, and so what is considered ‘successful’ differs. Because they draw upon diverse sets of practices, scholars on victim testimony provide conflicting representations of victims. According to Marie-Bénédicte Dembour and Emily Haslam, it is ‘too easily assume[d] that the legal arena provides a superior platform for victims to recount their stories.’112 Within calls for justice through law made in the early 1990s was at times an assumption that trials would be directly beneficial for victims.113 Looking at the South African Truth and Reconciliation Commission, it was suggested it was ‘indisputable that many survivors and relatives of victims have found the public hearing process psychologically beneficial,’114 something that was taken and understood to apply not only to the hearings of a commission but also to criminal trials. The hope was that trials would re-establish victims’ self-respect by providing them a place where testimony could be given and heard,115 perhaps even provide a ‘cathartic experience for survivors.’116 Assumed within these calls for (international) criminal trials was a possibility for trials to offer a representation of loss and suffering through language. However, others questioned how an (international) criminal trial would be able to hold victim testimony. While the trials of the ICTY and the ICTR restated and furthered the promises of ICJ, victim testimony quickly became a contentious issue there.117 In this context, Dembour and Haslam questioned the positioning of victims within the international criminal trial. On the basis of a close reading of the ICTY trial against Radislav Krstic, they point to victim testimonies where verbal exchanges stumble and words are lost, where victims wanting to expand their stories are urged by the cross-examining lawyer to respond simply with yes or 111 See Butler, Excitable Speech, above n 14, 51. 112 Marie-Bénédicte Dembour and Emily Haslam, ‘Silencing Witnesses? Victim Witnesses at War Crimes Trials’ (2004) 15(1) European Journal of International Law 151, 153. 113 Naomi Roht-Arriaza, ‘State Responsibility to Investigate and Prosecute Grave Human Rights Violations in International Law’ (1990) 78(2) California Law Review 449; Diane F. Orentlicher, ‘Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime’ (1991) 100(8) Yale Law Journal 2537; Neil J. Kritz, ‘Coming to Terms with Atrocities: A Review of Accountability Mechanisms for Mass Violations of Human Rights’ (1997) 59(4) Law and Contemporary Problems 127, 128. 114 Quoted (emphasis altered) in Garkawe, above n 57, 89, but compare Debra Kaminer et al., ‘The Truth and Reconciliation Commission in South Africa: Relation to Psychiatric Status and Forgiveness among Survivors of Human Rights Abuses’ (2001) 178 British Journal of Psychiatry 373. 115 Carlos Nino in Mark Osiel, Mass Atrocity, Collective Memory and the Law (Transaction Publishers, 1997) 273; Dembour and Haslam, above n 112, 153. 116 Garkawe, above n 57, 89. 117 An illustrative example is the controversy concerning a victim testimony in the 1998 Furundzija trial at the ICTY. A victim who testified concerning rapes which she had suffered was challenged by the defence because of therapy she may have received. As a consequence, the trial had to be reopened. See Prosecutor v Ante Furundzjia (Judgement) (ICTY, Trial Chamber, Case No IT-95-17/1-T, 10 December 1998) discussed in Vesna Nikolic-Ristanovic, ‘Sexual Violence, International Law and Restorative Justice’ in Doris Buss and Ambreena Manji (eds), International Law: Modern Feminist Approaches (Hart, 2005) 173.

The victim’s address 25 no, references to lost ones are not picked up or acknowledged by either lawyers or judges, and victim-witnesses are not appropriately recognised for giving account of their loss.118 For Dembour and Haslam, victim testimony can be likened to an ordeal,119 a physical ritual where the positions are rearranged so that it is the victim who is facing trial, placed in the role of accused. By calling testifying an ‘ordeal’, they draw on scholarship from domestic trials in which the process of testifying has been argued to constitute a ‘second victimisation’. Here, feminists and others have long pointed to the difficulties in domestic trials for victim-testifiers, and for victims of sexual violence in particular, to counter and resist stereotypical constructs of victims.120 Similarly, Dembour and Haslam hear in the victim testimony at the ICTY not a realisation of the promise of ICJ but a replication of a trial procedure that systematically silences subjects. This is a thoroughgoing scepticism: it is the very structure of the trial that makes communication through testimony impossible for the victims; no amount of tinkering can change this. And so they conclude: ‘[i]t may be that they [the victims] need an entirely different platform.’121 These representations of silenced or re-traumatised victim witness came to feed into a more general complaint in ICJ about the overly adversarial nature of the ICTY and ICTR.122 At issue was the place of the victim inside the trial, but the problem was not confined to the victim. Rather, it raised a question of the nature and system of international criminal proceedings, and whether alternative modes of inquiry such as truth commissions are preferable. During the negotiations for the permanent ICC, these complaints fed in to a call for victims to be offered a separate role within the proceedings. Thus, concerned about the difficulties for the victim to bear witness in the ascribed role as witness in the adversarial system of the international criminal trial at the ICTY and the ICTR, but nonetheless convinced of the importance of the victim’s presence during trial, academics, activists and diplomats saw in the establishment of the permanent ICC a promise of a new role for the victim as participant. With the establishment of the ICC, victims were accorded a unique place within international criminal proceedings and the idea of the ‘victim’ became a technical legal term of art. The possibility to participate at the ICC as victims was contentious from the start but never considered of minor significance. It was arguably ‘the major innovation’123 of the ICC. As an older version of the 118 Dembour and Haslam, above n 112, 158–60, 164, 172–3. 119 Ibid. 168. 120 As Garkawe notes, this issue of second victimisation through testimony was the topic of a 1985 Council of Europe Report. See Sam Garkawe, ‘Victims and the International Criminal Court: Three Major Issues’ (2003) 3 International Criminal Law Review 345, 347. 121 Dembour and Haslam, above n 112, 154. 122 Fanny Benedetti and John L. Washburn, ‘Drafting the International Criminal Court Treaty: Two Years to Rome and an Afterword on the Rome Diplomatic Conference’ (1999) 5(1) Global Governance 1, 16; Kai Ambos, ‘International Criminal Procedure: “Adversarial”, “Inquisitorial” or Mixed?’ (2003) 3 International Criminal Law Review 1. 123 Christine H. Chung, ‘Victims’ Participation at the International Criminal Court: Are Concessions of the Court Clouding the Promise?’ (2008) 6(3) Northwestern Journal of International Human Rights 459, 459.

26  The victim’s address ICC website put it, ‘[f]or the first time in the history of international criminal justice, victims have the possibility under the Statute to present their views and observations before the Court.’124 This was influenced in part by civil law countries, where victims have long had some standing, and in part by developments in international human rights law,125 in particular the 1985 UN General Assembly Declaration on Victims of Crime, from which the Rome Statute drew the definitions of both ‘victims’ and ‘participation’.126 Accordingly, the Rome Statute for the ICC stipulates that ‘at stages of the proceedings determined to be appropriate’, ‘the Court shall permit their [victims’] views and concerns to be presented’.127 The provisions for specific roles for ‘victims’ and ‘participants’ mark a shift in the placing of the victim in ICJ: from discussions on victim testimony focusing on the potential benefits or harm of testimony to technical discussions on the parameters of participation. It is not that victims no longer figure as witnesses, they certainly do, but with ‘participant’ as a particular status, victims also figure in a distinct place dedicated to them. With ‘participant’ lies a promise that the victim does not need to conform to the role of witness with its potentially harmful ritual in order to partake in trial. As ‘participant’, the victim appears from an additional platform for communication, through which the victim has agency to speak of his/her harm. ‘Victim’ has in this way become a term of art. As a participant, the ‘victim’ is juridified, its identity a technical question, determined by reference to preestablished criteria. This determination is an ongoing practice. According to Sara Kendall and Sarah Nouwen,128 the process through which persons become victim participants at the ICC operates like a pyramid. From the articulation of crime, to the prosecutorial decisions regarding crime site and accused persons, to the 124 ICC, Victims and Witnesses, www.icc-cpi.int/en_menus/icc/structure%20of%20the%20court/ victims/Pages/victims%20and%20witnesses.aspx (July 2015). 125 On victims in ICJ and ICL from a rights perspective, see Brianne McGonigle Leyh, ‘VictimOriented Measures at International Criminal Institutions: Participation and its Pitfalls’ (2012) 12 International Criminal Law Review 375; Thorsten Bonacker and Christoph Safferling, ‘Introduction’ in Thorsten Bonacker and Christoph Safferling (eds), Victims of International Crimes: An Interdisciplinary Discourse (Springer, 2013); Marlies Glasius, ‘How Activists Shaped the Court’ (2003) Crimes of War Project Magazine. See also the website of the NGO working for victims’ rights at the ICC: Victim’s Rights Working Group, Who We Are (2007), www.vrwg.org/ smartweb/about-vrwg/who-we-are. 126 Compare with UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power art V: ‘Victims’ means persons who, individually or collectively, have suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that are in violation of criminal laws operative within Member States, including those laws proscribing criminal abuse of power. Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Laws and Serious Violations of International Humanitarian Law, GA Res 60/147, UN GAOR, 60th sess, 64th plen mtg, Agenda Item 71(a), UN Doc A/ RES/60/147 (21 March 2006) annex [8]. 127 Rome Statute art 68(3). 128 Kendall and Nouwen, above n 11, 241.

The victim’s address 27 process of applying to be recognised as victim in a case – with each criterion, the category of victimhood narrows, and as a result, more and more people are excluded from this category. For Kendall and Nouwen, this juridification is problematic in two ways: first, it contrasts with an abstract all-encompassing Victim deity, something I will discuss below. Second, participation tends to be presented as a requirement for the very recognition of victimhood. When participation is accorded to so few, and the victim participant is so narrowly construed, it cannot be associated with recognition for the many who have suffered.129 Thus, whereas Dembour and Haslam see the trial as a ritual that silenced victims, Kendall and Nouwen draw attention to the contrasting processes that provide for victims to appear inside the court and the trial. This juridification of victimhood occurs at the same time as courts extend their activities so that more and more activities and spaces become ‘juridical’. Contemporary ICTs are increasingly concerned with outreach, activities organised by or through the court involving those in the larger community. Courts organise community gatherings in communities affected by the crimes adjudicated to discuss cases; provide information and ‘a more comprehensive and multifaceted approach to justice’;130 and, as I discuss in Chapter 5, organise activities to educate the public on the atrocities and the past. Outreach programmes are promoted as means to counter the limitations of ICL with respect to victim communities to ‘allow[] [victim] communities to see, hear, discuss, think about, and understand a legal process of accountability.’131 Significantly, victims figure in outreach work not only as individuals, but also as collectives and larger communities. Whereas the juridification of the victim through the category of participant individualises the victim, in outreach it is the community which stands as the victim. Victims appear in a number of places and the norms cited are manifold and at times competing. Whereas some see a promise in victims’ engagement with the courts, others primarily see limitations. Across time and place, victims are given different positions from which they may act. As witness or as participant, they may speak, each position holding its potential benefits and problems. And so, within ICJ are discussions on the particular places of victims and the ways in which they speak. Victims are alternatively characterised as silenced and traumatised, and empowered and heroes. Victims are placed at the fore in discussions on the legal systems and as the focus for an expansion of the judicial spaces. Between these places in the discussions, the figure of the victim moves.

129 Ibid. 252. 130 See Victor Peskin, ‘Courting Rwanda, The Promises and Pitfalls of the ICTR Outreach Programme’ (2005) 3(4) Journal of International Criminal Justice 950, 954. 131 Norman Henry Pentelovitch, ‘Seeing Justice Done: The Importance of Prioritizing Outreach Efforts at International Criminal Tribunals’ (2008) 39(3) Georgetown Journal of International Law 445, 449.

28  The victim’s address Spokespersons Victims are regularly presented as the very reason and purpose of international criminal proceedings. Notwithstanding occasional comments that victim survivors have no place in the proceedings, there are many examples of statements in which the victims appear as the telos of a court. Cambodian Prime Minister Hun Sen has suggested the ECCC provides justice ‘in the name of the victims’,132 and Fatou Bensouda, Prosecutor of the ICC, has argued that victims are the very raison d’être133 of the institution and its work. According to her, the work of the ICC is to restore the dignity of those who survived and to honour those who died, providing ‘victims’ with justice, comfort and honour.134 In statements such as these, it is on behalf of victims that the international(ised) criminal courts are set up and proceed. For Bensouda, the ICC, or at least the Office of the Prosecutors, acts as spokesperson for victims. This was even more clearly expressed by her predecessor, Luis Moreno Ocampo, who claimed that not only did he work in the interests of victims but that ‘justice for victims’ was his very ‘mandate’.135 In other words, he suggested that his activities were authorised, ‘mandated,’ by those represented.136 Statements such as these have attracted considerable criticism by academics and practitioners. Are international criminal proceedings really ‘for’ or even beneficial for victims? And who exactly are these ‘victims’ referred to in the statements? According to Kendall and Nouwen, the victim that figures in statements such as these is an abstraction that has little to do with individuals and communities that have suffered crime. This abstract victim is different from ‘real’ ones,137 but ‘draws out victimhood from all victims – dead or alive, past, present, or future – and consolidates this as one.’138 According to Kendall and Nouwen, the result is ‘a deity-like and seemingly sovereign entity, “The Victim,”’ who legitimates the work and existence of ICJ.139 In examining the scholarly responses to this form of abstraction, two approaches stand out: one which turns to empirical methodologies to ascertain the views and experiences of victim survivors, and another which critically examines the identity constructions of victimhood. Both raise questions about speech and spokesperson.

132 ‘When the judges have delivered their verdicts, we hope that Cambodians and all who support us will feel a load lifted from our backs as we finally bring justice in the name of the victims’: Hun Sen, above n 8. 133 The ‘sole raison d’etre of the ICC’s activities in Cote d’Ivoire is the victims and the justice they deserve’: Fatou Bensouda quoted in Kendall and Nouwen, above n 11, 239. 134 Office of the Prosecutor, ‘The Prosecutor of the International Criminal Court, Fatou Bensouda, Visits Niger, Addresses National Assembly: We Must Never Forget the Victims’ (press release, 28 April 2017), www.icc-cpi.int/Pages/item.aspx?name=PR1300. 135 Louis Moreno Ocampo quoted in Kendall and Nouwen, above n 11, 239. 136 Pitkin, above n 14, 133. 137 See also Fletcher, above n 11, 302. 138 Kendall and Nouwen, above n 11, 241. 139 Ibid.

The victim’s address 29 As ICJ grew as a practice and a field of scholarly enquiry, calls went out for empirical data on the work of ICTs. In 2002, Laurel E. Fletcher and Harvey M. Weinstein lamented that there was a gap of ‘empirical evidence to substantiate claims about how well criminal trials achieve the goals ascribed to them.’140 In the years since their article, there has been a surge of such empirical studies. This empirical impetus has been described by Eric Stover as a move away from ‘wishful and uncritical thinking’ about the benefits of criminal justice and instead to ‘ground it in the everyday lives of those most affected by violence.’141 In this vein, Luke Moffett justifies his qualitative interview approach in his study on the ICC’s activities in Uganda by way of reference to the ‘importan[ce] to meet with individuals and communities who had suffered from international crimes . . . so as to understand their views on and concerns about the Court . . . and to provide a general sentiment on the Court.’142 In these studies, the voices of victims hold a status of empirical data – they appear as bearing the standards of justice. For Sergey Vasiliev, the relevance of victims’ views on the activities and outcomes of the courts amounts to a sort of ‘customersatisfaction’. According to him, the ICC’s engagement with victims and affected communities has come to be relied upon as a metric of its relevance. The degree of ‘customersatisfaction’ – however calculated – is the basis for value judgements that are passed regularly on the Court’s success in achieving certain socio-political goals in the conflict and post-conflict settings.143 This account of the victim as a figure in a position to evaluate the court and its proceedings is not limited to the ICC, but extends to other ICTs. Rather than basing the analysis on trial transcripts, these interview-based studies represent the voices of the victims as ostensibly unmediated, as allowing the victims ‘themselves’ to describe their experiences of the ICTs. In-depth interviews are given significant weight in ICJ scholarship. Based upon the authority of the victims’ experiences, the institutions are evaluated, and lauded or criticised. Alongside these in-depth interviews with a limited number of respondents, victims figure as standard-bearers of justice in population-level surveys on the attitudes of people who have experienced conflicts. Since 2004, the Human Rights Center at Berkeley under the direction of the above-mentioned Stover

140 Laurel E. Fletcher and Harvey M. Weinstein, ‘Violence and Social Repair: Rethinking the Contribution of Justice to Reconciliation’ (2002) 24 Human Rights Quarterly 573, 585. 141 Eric Stover, The Witnesses: War Crimes and the Promise of Justice in The Hague (University of Pennsylvania Press, 2005). See also Diane F. Orentlicher, That Someone Guilty Be Punished: The Impact of the ICTY in Bosnia (Open Society Institute, 2010). 142 Luke Moffett, above n 10, 4–5. 143 Sergey Vasiliev, ‘Victim Participation Revisited: What the ICC Is Learning about Itself’ in Carsten Stahn (ed), The Law and Practice of the International Criminal Court (Oxford University Press, 2015) 1133.

30  The victim’s address has published a number of such studies, exploring the views of people in Liberia, northern Uganda, eastern Democratic Republic of Congo, the Central African Republic and Cambodia.144 This approach to the ICJ-institution as an object that can and should be evaluated by a large number of people, who in different ways have been affected by victimisation, is noteworthy. As the Center describes its work, it ‘uses empirical research methods to give voice to survivors of mass atrocity’145 and presents recommendations to concerned institutions and donors based on these empirical findings. In these, as in the in-depth studies, victims bear witness to the success or the failure of the courts. By basing the research on the views and opinions of those who were directly involved, the studies are represented as informed by the practical realities of the court and, at times, the effects of participating in the proceedings. ICL and its institutions are approached as entities with promises and problems that not only can be measured but also need to be evaluated from the perspective of those most affected by them, namely victims. Victims are in this way positioned as a link between the promise of justice and the institutional workings; a bearer of the standard that measures the success or problems of the court. The voices of victims hold a certain form of communication, accorded certain weight as to the ‘reality’ of ICJ. The victims give an address, witnesses not to trauma but rather to the court proceedings. The role of spokesperson is in this way somewhat mobile. Claims by the former and current ICC prosecutors to act on behalf of victims draw criticism from the empirically based studies, which question the identity of victims (e.g. ‘real’ versus ‘abstract’) and the suggested relation between the court and the subjects. Nevertheless, although the aim of studies is to ascertain the ‘real’ voices, they also claim relations between represented and representative. The practice of interviewing victims involves choices of sampling and method, and the later presentation of data involves analysing and picking up certain voices, responses and comments. These studies slip between positioning victims as spokesperson and speaking on their behalf. Here, it is the scholar who (re)presents the voices of victims. Importantly, the empirical studies conceive of the subjects’ identity as victims exogenous and ontologically prior to court practices. That is, their subjectivity is determined by something other than court-prescribed criteria. Notably, this positions victim survivors as outside (and prior) yet in relation to the institutions of ICJ. Meanwhile, another body of scholarship does not so much seek to ascertain the voices of victim survivors as to question the subjectivity of the victim figure in ICJ. The focus here is on the subjectivity of so-called complex victims or those who figure in the so-called grey zone.146 By teasing out the complexity of

144 Human Rights Center, University of California, Berkeley. Its reports are available at Human Rights Center, Reports, www.law.berkeley.edu/centers/human-rights-center/publications/reports. 145 Phuong Pham et al., So We Will Never Forget: A Population-Based Survey of Attitudes about Social Reconstruction and the Extraordinary Chambers in the Courts of Cambodia (Human Rights Center, University of California, Berkeley, 2009). 146 See Primo Levi, The Drowned and the Saved (Raymond Rosenthal trans, Abacus Books, 1989).

The victim’s address 31 victimhood with the possible multiple identities a person might hold over time, the aim is often to point to how poorly ICTs deal with this. The insight that institutions and communities struggle to deal with persons who transcend or do not fit into the victim-perpetrator dichotomy is not new for contemporary ICJ. During the 1950s and 1960s, a number of trials were held in Israel against former Kapos, prisoners in Nazi work and concentration camps who had supervised other prisoners in exchange for slightly better conditions. According to Mark Drumbl,147 these trials, and the Kapos themselves, illustrate the difficulties with passing judgment. Kapos both committed and were subjected to violence; they are both victims and perpetrators. For Drumbl, the trials also demonstrate how criminal law demands, and is based on, binaries and therefore cannot take into account any blurring thereof.148 Drumbl’s argument seems particularly pertinent given the recent charges brought against Dominic Ongwen at the ICC. Ongwen is believed to have been abducted as a child by the Lord’s Resistance Army, but then rose through the ranks to become commander himself, and is now charged with the same crime (amongst others) as that of which he was once a victim.149 In scholarship on Ongwen, the work by Erica Bouris150 on complex political victims has been picked up to examine the way that international criminal courts attend, or fail to attend, to those who do not fit with the ideal victim figure.151 In this vein, Julie Bernath and Luke Moffett argue in separate articles that criminal courts and tribunals engaging in transitional justice fail to account for those for whom ‘the line between perpetrators and victims is particularly blurred.’152 Whereas Moffett focuses his analysis on reparations mechanisms after atrocities, Bernath turns to the ECCC, an institution she claims refuses to deal with the complexity of the background of some subjects who claim victimhood. What becomes apparent in this work on ‘complex victims’ or ‘victims who victimise’ is the way they take aim at the inadequacies of ICL and its institutions. Rather than seeing promises, these scholars often see inadequacies. But even in problematising the way the court deals with subject figures, they, like the empirically based scholars, point to subjects whose identity is determined outside the institutions. The identity of the subjects as victims is problematised,

147 Mark A. Drumbl, ‘Victims Who Victimise’ (2016) 4(2) London Review of International Law 217. 148 Ibid. 244–5. 149 See Erin Baines, ‘Complex Political Perpetrators: Reflections on Dominic Ongwen’ (2009) 47(2) Journal of Modern African Studies 163. 150 Erica Bouris, Complex Political Victims (Kumarian Press, 2007). 151 Nils Christie, ‘The Ideal Victim’ in Ezzat A. Fattah (ed), From Crime Policy to Victim Policy (MacMillan, 1986) 17; Joris van Wijk, ‘Who Is the “Little Old Lady” of International Crimes? Nils Christie’s Concept of the Ideal Victim Reinterpreted’ (2013) 19(2) International Review of Victimology 159. 152 Julie Bernath, ‘“Complex Political Victims” in the Aftermath of Mass Atrocity: Reflections on the Khmer Rouge Tribunal in Cambodia’ (2016) 10(1) International Journal of Transitional Justice 46, 47; Luke Moffett, ‘Reparations for “Guilty Victims”: Navigating Complex Identities of Victim-Perpetrators in Reparation Mechanisms’ (2016) 10(1) International Journal of Transitional Justice 146.

32  The victim’s address but the problematisation as well as the multiplicity of identities is conceived of as remaining exogenous to the practices of the ICT. Whereas the empirical studies seek to present the voices of the subjects, work on complex victims or victimperpetrators questions the ICTs through pointing to the subjectivities that are multiple outside of the institutions. What holds these very different writings and approaches together – from the statements made by the ICC prosecutors, to the empirical studies, to those on complex victims in ICJ – is the way they raise questions about the practices of representation. Notwithstanding their differences, they all write about subjects in order to either give them voice or to claim them a presence. For Gayatri Chakravorty Spivak, this activity of writing to give a subject voice prompted her to ask whether the subaltern can speak.153 Spivak was concerned about research on subjects perceived as Others – such as victims – that seek to reveal an ‘authentic’ or ‘true’ voice. According to her, this activity requires the scholar to erase his/her own positionality, and assumes a ‘transparency’ that ignores the ways the scholar and the writing contribute to the constitution of the represented figure.154 While scholars writing on complex victims question the way courts deal with certain subjects and the complexity of human life, they still seek to make sense of ‘who’ the subjects are. The subjectivity of ‘complex subjects’ is still taken as determined and existing exogenously, outside of the legal processes. Furthermore, while this scholarship is often critical of the ICJ institutions, it nevertheless partakes in the furthering of the enterprise. Yet, scholarship also operates within citational networks that regulate the norms necessary to cite for an intelligible appearance. In criticising the institutions, some of the scholars offer alternatives, claiming the existence of other, more ‘real’ subjects. This indicates how writings by academics unavoidably partake in the processes of naming and shaping subjects. This, of course, also applies to my own work, my own writing. This book unavoidably provides representations of victims and contributes to (or at least aims to contribute to) the conversations on ICJ. But while I do not believe it is possible to overcome the violence that is inherent in representation, by focusing on the representational practices, what Spivak called the mechanics, of victim figures, I hope to be attentive to my own position as writer, producer of text on victims. As this section has shown, in statements by court staff as well as in scholarly writings, the act of representation is both an act that provides a relationship between a representative and a represented, and an activity through which subjects are constituted. These acts of representation are not necessarily problematic or something that needs to be ‘solved’, whatever that would mean. However, they too often go unattended when they require attention. In this book, I seek to take seriously the multiple positions from which victims speak and the variegated representations of victims that are provided in ICJ. Kendall and Nouwen’s insight regarding the juridified victim at the ICC is of 153 Spivak, above n 28. 154 Ibid. 280–1, 285, 294.

The victim’s address 33 interest as it inevitably raises the question concerning juridification of victims at the ECCC. I share their concern over generalised references to an abstract ‘Victims’. But rather than conducting an empirical study based on interviews with subjects that are exogenously or self-identified as victims, I hope to contribute to the understanding of the operations of ICJ by extrapolating the possibly multiple representations of victims that are provided by one institution. In other words, this study remains within the representations of victims by the institution. This leads to an outline of the book.

A roadmap The book proceeds by way of a close reading of a number of texts, ranging from legal documents to academic texts, and from written texts to the spatial dimensions of the ECCC. I approach these texts by drawing on a range of debates in ICJ and on theories of representation and subject formation. As explained above, the work of Judith Butler helps me to pose questions of how subjects become intelligible through practices of iteration, while the work of Hanna Pitkin points out how representation can also signify a relation between a representative and a represented. Most of the analysis of the ECCC is based on publicly available material, such as trial transcripts, trial decisions and the judgments. Additionally, I draw on my own observations from the ECCC and on interviews conducted in 2011 and 2016 with professionals working at and around it.155 I have not interviewed anyone because they self-identify or are represented as victims, as my interest lies with the way court practices give shape to representations, not with the experiences of individuals who either are or have not been represented as such by the Court. As explained in this book, representations of victims appear and develop across a range of institutional practices at the ECCC. I approach these shifting representations as movements, movements through which the victim – as a category – traverses the institution of the Court. Just as these representations of the victim appear through a movement where each iteration is one of both repetition and difference from the previous, so does the book move through the chapters with some repetition and some difference. Each chapter brings something new, a new moment in the proceeding, a new iteration of the victim. It advances from the establishment of a court, to pre-trial, to trial and then, not to post-trial, but to beyond the trial in outreach. Each chapter is also a reiteration: the same question is asked about how victims figure, the same assumptions are made as to the significance of language. While the movement from the establishment of a court, to pre-trial, to trial, to outreach indicates both spatial and temporal aspects, the structure of the book should not be taken as an assertion of a beginning and

155 Ethics Id 1135452, Approved HESC (12 May 2011); Ethics Id 1646468.1, Approved HEAG (May 2016). Interviews were semi-structured and sought to provide information on practices of working with victim survivors.

34  The victim’s address an end in an individual victim’s experience with the ECCC. Furthermore, while judgments often play a central place in legal scholarship, there is no chapter here dealing specifically with judgments. By not including one, I hope to decentre the judgment as an event, and displace it by the trial and other court practices. Others already deal with judgments. Thus, the book proceeds through a further unfolding of the continuous movements that occur across and between the Court’s practices. The way a court is set up and vested with authority lingers through its jurisdictional practices. ICTs often require concerted efforts to be brought into being. To operate, the institutions must be vested with authority, an authority which is both productive and exclusive. Chapter 2: The Establishment of a Court attends to the founding and foundation of the ECCC, and the way this makes (some) victims relevant for the legal institution and ICJ. The ECCC was set up through an agreement between the UN and the Cambodian government, an agreement that was the result of protracted and difficult negotiations. To better understand the negotiations, I situate them in this chapter within a longer relationship between the two founding entities. This then has a bearing upon the Court’s jurisdiction as to ask about jurisdiction is to ask about authority and authorship, in particular the authority to speak in the name of law. Jurisdiction alerts us to processes of inclusion and exclusion, to the constructions of time, place, act and person, and to the way these are made relevant or irrelevant for law. How then does someone become a victim relevant to the law of the ECCC? The central question that animates Chapter 3: The Khmer Rouge Marriages and the Victims of Crime concerns how the representation of crime affects the figure of the victim. The marriages orchestrated by the Khmer Rouge raise questions for ICL. What made them criminal and how can they be translated and categorised in ICL? While the questions of legal translation and representation are significant in themselves, for the figure of the victim, they go at the core of being. The structure of the crimes regulates the victim’s appearance, enabling and foreclosing the figuration. This chapter focuses on the pre-trial representation of victims in the Closing Order for Case 002. This particular legal text stands as a significant pre-trial representation of victims and of crime, indicating the limits and the possibilities of the legal translation. Here, the Khmer Rouge marriages were translated into crimes against humanity, constituted by the underlying offences of rape (later changed to other inhumane acts of rape) and other inhumane acts of forced marriage. In the chapter, I trace the representation of victims from the translation into crime and then into the different legal categories of chapeau elements and underlying offences. I argue that what appears is a victim constituted through a number of slippages; two of the more significant being between the individual and the collective, and, in the collective, between humanity as a political and a moral category. Chapter 4: Becoming Participant: Victim Representations at Trial takes the book to the trial. Trials take up a place in ICJ scholarship as sites of drama and tensions. Here, victim participation has emerged as a significant topic of concern. However, much of this scholarship is confined to participation as a legal term of art, examining the effects, possibilities and limits of participation on preestablished victim subjects. I take a different approach. In this chapter, I examine

The victim’s address 35 how victims are performatively constituted through practices of participation. These practices are determined not only by legal rules and regulations but also by the spaces in which participation takes place and the relations through which the subjects come into being. I focus on three modes of being through which a victim is brought before the trial: the visitor, the civil party and the testifier. Each of these holds its own characteristics that give shape to the victim figure, and in different ways express the forms of representation (as a performative act of becoming and as a political act of speaking or acting on behalf of someone) that informs my reading. I argue that in light of the attention given to victim participation in ICJ, it is necessarily to give an account of the way victims come into being through the practices of participation, as this provides for an understanding of manifold victim figurations. Trials take place in courtrooms. But the practices of the ECCC, like those of many other international(ised) criminal courts and tribunals, are not confined to the courtroom. In Chapter 5, Photographs and Outreach: Relating Victims to Images, the book leaves the ECCC compound and the courtroom, and follows the Court’s work in outreach. Outreach has come to play a significant part in the work of ICTs, and while much of this work is oriented towards information, the ECCC outreach also holds an outspoken aim of educating the population about the Khmer Rouge. Each week, the ECCC organises as part of its outreach work a Study Tour that brings Cambodians to the Tuol Sleng Genocide Museum. Here, the outreach participant encounters the photographs taken as mugshots during the Khmer Rouge regime. According to the ECCC, it is by facing the photographs, facing the past, that Cambodians are able to move on. And so I ask, what happens when the participant of the Study Tour meets the images hanging at the museum? How are victims represented here? The chapter has two parts, held together by their attention to the victim. In the first part, I discuss outreach and its significance in ICJ. In the second, I trace the photographs through different genres in which they have appeared. In bringing these together, I argue that encountering the victim representation in the photographs works to interpellate the outreach participant as a participant in the national endeavour to move on. Together, the four chapters on victim figurations at the ECCC bring out manifold and indeterminate figurations. Chapter 6: Conclusion: ‘Moving Forward through Justice’ brings these figurations together. I argue that the manifold and indeterminate representations of victims that the previous chapters have unfolded constitute a performance of the legal order as a politics of transition. I bring out the ways in which the ECCC, as an ICJ institution, positions itself as part of a movement. I argue that the figure of the victim represents the liminal space in the expected transition of the ECCC by both marking, acting as a symbol for, and performing, enacting, it. And so, with this, the scene is now set to start a new chapter on the ECCC.

2 The establishment of a court

Introduction: before the law Looming large above the judges’ bench inside the chamber of the Extraordinary Chambers in the Courts of Cambodia (ECCC, or the Court) are three flags. To the far right of the judges is the blue and white flag of the United Nations (UN), which with its two olive branches carrying the world map merges a symbol of peace with a representation of the globe, its peoples and its countries. To the left of the judges is the Cambodian flag with the temples of Angkor Wat at the centre. Between the two is the ECCC emblem: against a white background, a figure in light blue is sitting on a dais with a sword in his right hand above the olive wreath of the UN. The figure, taken from a mural that was originally in the Cambodian Palais de Justice and is now in the Ministry of Justice,1 stands for the administration of Cambodian justice during the Angkor period.2 The ECCC emblem represents the authority of the Court, symbolically bringing together the two entities that established it. This chapter attends to the establishment of the ECCC and the way this provided for the representation of certain victim subjects as relevant for law. At the foundation of the ECCC lies a contestation over authority that is illustrative of both the enterprise of international criminal justice (ICJ) and the way victims figure therein. As a starting point in examining this foundational contestation, consider the controversy concerning the position of Laurent Kasper-Ansermet as international Co-Investigating Judge (CIJ). In March 2012, Kasper-Ansermet announced that he was resigning from the ECCC as ‘the present circumstances no longer allow[ed] him to properly and freely perform his duties.’3 The announcement came after months of struggle between the national and international CIJs concerning the authority to conduct investigations into Cases 003 and 004. According to

1 My thanks to Sally Low for sharing her work on this. 2 On the symbolism of the ECCC emblem, see Introduction to the ECCC, ECCC, www.eccc.gov.kh/ en/about-eccc/introduction. 3 ‘Press Release from the International Reserve Co-Investigating Judge’ (press release, 19 March 2012), www.eccc.gov.kh/en/articles/press-release-international-reserve-co-investigating-judge.

The establishment of a court 37 the national CIJ, You Bunleng, Kasper-Ansermet had not gone through the proper channels for appointment and was therefore not authorised to conduct investigations or even to access the case files.4 In other words, he simply was not vested with the authority of a CIJ. For Kasper-Ansermet, however, the issue was ‘manifestly more political and financial than strictly judicial.’5 In a second press release issued on the day of his resignation, Kasper-Ansermet referred to ‘a highly hostile environment’ in which the investigations into Cases 003 and 004 had been ‘interfered with’.6 Whereas for some7 the two issues of Kasper-Ansermet’s (lack of) authority as CIJ and Cases 003 and 004 were completely separate, for others8 the resistance against Kasper-Ansermet confirmed allegations of Cambodian governmental interference. A few years earlier, Cambodian Prime Minister Hun Sen had been quoted saying that no cases beyond the first two would be allowed,9 and the controversy surrounding Kasper-Ansermet was taken to confirm claims that the Cambodian government was unduly interfering with the judicial proceedings. For these latter commentators, the disagreement between the national and international CIJs exemplified a split between the national and international sides of the ECCC that corresponded with one between political interference and independent judiciary. This split, or at least the way such a split is presented, stands at the heart of this chapter. ‘Extraordinary Chambers shall be established’, begins the ECCC Law. A law is drafted, written up and, when it is promulgated, a Court comes into existence. The text reflects – provides for and delimits – the authority of the Court. Like other international(ised) courts and tribunals, the ECCC did not come to be on its own, but was produced, the result of negotiations that have shaped its existence. Negotiations can be short or long, difficult or easy. The negotiations for the establishment of the ECCC were difficult, characterised by struggles and compromises.

4 Of concern seems to have been a number of tweets Kasper-Ansermet had made before taking up the position that raised concerns about his impartiality. Amongst other things, Kasper-Ansermet retweeted links to reports critical of the Court by NGOs such as the Open Society Justice Initiative and Human Rights Watch, and at one point retweeted a post saying that it was ‘reasonable to pursue cases 003/004 against Sou Met, Meas Muth, Ta An, Ta Tith and Im Chaem’. At that point, the names of the suspects in 003/004 were supposedly still confidential. See ‘Judge Kasper-Ansermet’s Twitter posts: Reason for Concern?’ on KI Media (23 March 2012), http://ki-media.blogspot. com.au/2012/03/judge-kasper-ansermets-twitter-posts.html. For an overview of the tweets see Bridget Di Certo, ‘Tweeting Judge’s Cyber Diary’ (19 October 2011) Phnom Penh Post (online), www.phnompenhpost.com/national/tweeting-judge%E2%80%99s-cyber-diary. 5 ‘Press release by the Reserve International Co-Investigating Judge’ (press release, 4 May 2012), www.eccc.gov.kh/en/articles/press-release-reserve-international-co-investigating-judge. 6 Ibid. 7 For example, the national co-prosecutor had already given a statement why she opposed Cases 003 and 004. See discussion under the heading ‘The accused and the victim’. 8 For example, Open Society Justice Initiative, The Future of Cases 003/004 at the Extraordinary Chambers in the Courts of Cambodia (October 2012), www.opensocietyfoundations.org/sites/ default/files/eccc-report-cases3and4-100112_0.pdf. 9 Cheang Sokha and James O’Toole, ‘Hun Sen to Ban Ki-moon: Case 002 last trial at ECCC’ (27 October 2010) Phnom Penh Post (online), www.phnompenhpost.com/national/hun-sen-ban-kimoon-case-002-last-trial-eccc.

38  The establishment of a court When an agreement was reached, traces of the negotiations remained in and through the Court’s operations, reflected in the authority with which it was vested. Authority is made ‘intelligible’ through practices of jurisdiction.10 Jurisdiction enacts and delimits authority in accordance with certain elements or matters, such as time, place and person. ‘[A]s a practice of authority’,11 jurisdiction is productive, providing for appearance and action, but also strictly bound, limited to the pre-established elements. The very establishment of the Court lingers as a jurisdictional practice of inclusion and exclusion. The ECCC was established through an agreement12 between the UN and the Cambodian government with the purpose to bring to trial senior leaders of Democratic Kampuchea and those who were most responsible for the crimes and serious violations of Cambodian penal law, international humanitarian law and custom, and international conventions recognized by Cambodia, that were committed during the period from 17 April 1975 to 6 January 1979.13 Vested with the authority to hold to account ‘senior leaders’ and ‘those most responsible’ for crimes committed when Cambodia was known as Democratic Kampuchea (DK) and ruled by the Communist Party of Kampuchea (CPK), more commonly known as the Khmer Rouge,14 the ECCC operates as an 10 On jurisdiction, see, for example, Shaunnagh Dorsett and Shaun McVeigh, ‘Questions of Jurisdiction’ in Shaun McVeigh (ed), Jurisprudence of Jurisdiction (Routledge-Cavendish, 2007); Shaunnagh Dorsett and Shaun McVeigh, Jurisdiction (Routledge, 2012); Shaunnagh Dorsett and Shaun McVeigh, ‘Jurisprudence of Jurisdiction: Matters of Public Authority’ (2014) 23(4) Griffith Law Review 569; Anne Orford, ‘Jurisdiction without Territory: From the Holy Roman Empire to the Responsibility to Protect’ (2009) 30(3) Michigan Journal of International Law 981, 983; Olivia Barr, A Jurisprudence of Movement: Common Law, Walking, Unsettling Place (Routledge, 2016) 25. For an account of jurisdiction as being shaped by attachment, see Marc Trabsky, ‘The Coronial Manual and the Bureaucratic Logic of the Coroner’s Office’ (2016) 12(2) International Journal of Law in Context 195. 11 Dorsett and McVeigh, ‘Questions of Jurisdiction’, above n 10, 32. 12 Agreement Between the United Nations and the Royal Government of Cambodia Concerning the Prosecution Under Cambodian Law of Crimes Committed During the Period of Democratic Kampuchea, signed 6 June 2003, 2329 UNTS 117 (entered into force 29 April 2005) (‘ECCC Agreement’). 13 Law on the Establishment of the Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed During the Period of Democratic Kampuchea, as Amended by the Law to Amend the 2001 Law on the Establishment of the Extraordinary Chambers (NS/ RKM/1004/006, 27 October 2004) (Unofficial translation by the Council of Jurists and the Secretariat of the Task Force, revised 26 August 2007) (‘ECCC Law’). 14 The Communist Party of Kampuchea was referred to as the ‘Khmer Rouge’ by Prince Sihanouk but this name was never used internally. Although the two are not exact synonyms, the name the Khmer Rouge has become dominant and for that reason, I alternate in the book between the two names. The literature on the Khmer Rouge period (1975–1979) is extensive. Amongst the more authoritative are David Chandler, The Tragedy of Cambodian History: Politics War and Revolution since 1945 (Yale University Press, first published 1991, 1993 ed); David Chandler, Brother Number One: A Political Biography of Pol Pot (Westview Press, first published 1992, 1999 ed); David Chandler, Voices from S-21: Terror and History in Pol Pot’s Secret Prison (University of California Press, 1999); Alexander Laban Hinton, Why Did They Kill? Cambodia in the Shadow of Genocide (University of California Press, 2005); Ben Kiernan, Genocide and Resistance in Southeast Asia, Documentation, Denial and Justice in Cambodia and East Timor (Transaction Publishers, 2008); Michael Vickery, Cambodia: 1975–1982 (Silkworm Books, 1984).

The establishment of a court 39 extraordinary chamber within the Cambodian criminal justice system with international support. It is thus an internationalised institution, neither completely national nor fully international, its authority shaped by the relations of the two constitutive parties. The ECCC holds authority to represent subjects as victims in and for law, distinct from those who do so in broader cultural or social discourses. This representation is a jurisdictional practice that provides a relation between the institution and a subject, and makes both the practice of ‘victiming’15 and the resulting victim subject ‘lawful’ – of law.16 There is then a cleaving between the lawful and those who are left outside, a cleaving which is significant. As Sara Kendall and Sarah Nouwen point out, the category of victimhood in law ‘is much narrower than that massive base’ of all those who suffer or consider themselves victims.17 But those left outside are not illegal but simply a-legal, or non-lawful, for the purposes of that particular institution. While the category of victim may contain a plurality of subjects, (only) some are, through their link to the institution, of its law. While jurisdiction is significant, it nevertheless ‘signals nothing, it has no content, but rather only an enigmatic signification of something else, another space, a beyond that is not here and can only be imagined once the key has been turned.’18 To read the figuring of victims through the establishment of a court means attending to the processes of cleaving and the spaces beyond. This chapter then attends to the establishment of the ECCC and the way victims figure therein. The chapter has two parts. First, I describe the negotiations for the ECCC by situating these within the context of the longer relation between the negotiating parties, something which sheds light on the continuing contestations over the authority. Second, I turn to the way the jurisdictional practices of the Court provide for representations of lawful victims. By describing and attending to boundaries, I unfold the interactions and relations involved in the representation of victims and ICJ through the making of the ECCC. With that, it is time to attend to the ECCC. How is the ECCC authorised to adjudicate a past atrocity?

Negotiating a hybrid court In their book Hybrid Justice: The Extraordinary Chambers in the Courts of Cambodia,19 John D. Ciorciari and Anne Heindel take aim at what they see as a dysfunctional court model. Both authors have long experience from the struggle

15 See Chapter 1. 16 On lawful, see work by Dorsett and McVeigh, above n 10. I use it here to signify the quality of victim/hood in and for law. 17 Sara Kendall and Sarah Nouwen, ‘Representational Practices at the International Criminal Court: The Gap between Juridified and Abstract Victimhood’ (2014) 76(3) Law and Contemporary Problems 235, 241. 18 Peter Goodrich, ‘Visive Powers: Colours, Trees and Genres of Jurisdiction’ (2008) 2(2) Law and Humanities 213, 216. 19 John D. Ciorciari and Anne Heindel, Hybrid Justice: The Extraordinary Chambers in the Courts of Cambodia (University of Michigan Press, 2014).

40  The establishment of a court for justice in Cambodia as legal advisors to the Documentation Center of Cambodia (DC Cam), a Cambodian non-governmental organisation (NGO),20 but despite their longstanding interest in seeing those responsible for the Khmer Rouge atrocities held to account – or perhaps because of it – they are highly critical of the ECCC. According to Ciorciari and Heindel, the design of the ECCC is fundamentally flawed. As an institution, the ECCC is ‘weak’ and ‘awkward’. Although they at one point state that this has more to do with unique features of the ECCC than the hybrid model per se,21 they reach the conclusion that ‘when authority and responsibility are divided’, ‘mass crimes courts [are susceptible] to legal confusion, procedural delay, and financial and administrative impasses’.22 For them, in other words, the hybrid justice of the ECCC does not deliver. What Ciorciari and Heindel call the hybrid nature of the Court is its split foundation between Cambodian national and UN international components. Whereas the ad hoc tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR) were established through UN Security Council Resolutions under Chapter VII to ‘restore international peace and security’,23 the ECCC is based on an agreement that was drafted in difficult negotiations. This difficulty is reflected in the founding text and as such, the Court’s authority is more elusive. The relation between the UN and the Cambodian government holds the foundation of the ECCC. The relation of the parties There are multiple accounts of the events that led to the establishment of the ECCC. Some are written by individuals who were directly involved: the diplomats committed to international accountability,24 and the advisor located in Cambodia, who since the early 1990s has been researching and documenting the atrocities.25 Regardless of author, all accounts share one feature: the negotiations were long and difficult. Helen Jarvis, a member of the Cambodian task force,

20 DC Cam was originally the field office of Yale University’s Cambodian Genocide Program set up in 1994, but has since become an independent Cambodian NGO. Its purpose is to research and record the period of Democratic Kampuchea, and it holds the most significant archive on the period. 21 Ciorciari and Heindel, above n 19, 10. 22 Ibid. 4. 23 Charter of the United Nations ch VII. 24 For example, Thomas Hammarberg, Special Representative of the UN Secretary-General for Human Rights in Cambodia between 1996 and 2000, and David Scheffer, US Ambassador-atlarge for War Crimes. 25 Helen Jarvis has written on the negotiations in Tom Fawthrop and Helen Jarvis, Getting Away with Genocide? Elusive Justice and the Khmer Rouge Tribunal (University of New South Wales Press, 2005); see especially chapters 9 and 10. Those not directly involved but with significant insight include Stephen Heder, ‘Dealing with Crimes Against Humanity: Progress or Illusion?’ (2001) Southeast Asian Affairs 129, www.jstor.org/stable/27912272 (published before an agreement was reached); Ciorciari and Heindel, above n 19; Stephanie Giry, Necessary Scapegoats? The Making of the Khmer Rouge Tribunal (23 July 2012) New York Review of Books, www.nybooks. com/daily/2012/07/23/necessary-scapegoats-khmer-rouge-tribunal.

The establishment of a court 41 describes the parties as ‘uneasy partners’,26 while David Scheffer, facilitator to the negotiations as US Ambassador-at-large for War Crimes, characterises the negotiations as ‘the toughest cockfight’27 – ‘the nationalistic insularity of Cambodian officials lock[ing] horns with the stubbornness of UN lawyers and diplomats’.28 And just as there are multiple accounts, there are many possible points of departure. Depending on where and when the story of the struggle for accountability begins, the accounts of why the establishment of the ECCC was so difficult also proceed very differently. In the mid-1990s, there was a buzz around the prospect of achieving justice through international criminal trials.29 ICJ was a promise and a desire, with an end to impunity and justice for victims amongst the stated aims. Preparations were underway for what was to become the International Criminal Court (ICC) with the Rome Conference in 1998, and in May 1997, for the first time since the period after World War II, a person was found guilty of crimes against humanity and war crimes by an international criminal institution.30 This interest in international criminal accountability extended also to the Khmer Rouge and the atrocities committed during its regime in the 1970s.31 In 1994, the United States Congress passed the Cambodian Genocide Justice Act, which through Yale University funded DC Cam to collect and archive information and documents on the Khmer Rouge period as potential evidence. Pressure was mounting for international involvement in bringing justice to the victims of the Khmer Rouge. Meanwhile in Cambodia, both Prime Ministers who were leading the country after the elections in 1993 wanted to see the Khmer Rouge defeated and held to account. Accordingly, in 1997 Prince Norodom Ranariddh and Hun Sen sent a letter to UN Secretary-General Kofi Annan requesting ‘the assistance of the United Nations and the international community in bringing to justice those persons responsible for the genocide and crimes against humanity during the rule of the Khmer Rouge from 1975 to 1979.’32 As they explained in the letter, assistance was needed as ‘Cambodia does not have the resources or expertise to

26 Title of chapter 9 in Fawthrop and Jarvis, above n 25. The following chapter is entitled ‘Gangs of New York’. 27 David Scheffer, All the Missing Souls: A Personal History of the War Crimes Tribunals (Princeton University Press, 2013) title of chapter 12. 28 Ibid. 343. Note the gendered nature of the metaphors. 29 See, for example, Karen Engle, ‘Anti-impunity and the Turn to Criminal Law in Human Rights’ (2015) 100(5) Cornell Law Review 1069. 30 Prosecutor v Tadić (Judgment Summary) (ICTY, Trial Chamber, Case No IT-94-1-T, 7 May 1997). 31 Earlier calls for international accountability had been to no avail. This includes the work by David Hawks to document the atrocities and call for accountability. See, for example, Chandler, Voices from S-21, above n 14, ix. 32 Kofi Annan, Identical Letters Dated 23 June 1997 from the Secretary-General to the President of the General Assembly and the President of the Security Council, UN GAOR, 51st sess, Agenda Item 110, UN Doc A/51/930 (24 June 1997) annex (‘Letter Dated 21 June 1997 from the First and Second Prime Ministers of Cambodia Addressed to the Secretary-General’).

42  The establishment of a court conduct this very important procedure.’33 This letter was a trigger for action, taken by the international community as an indication of the state’s interest in authorising an international entity with the powers of a court. In response to the letter, Kofi Annan appointed a Group of Experts to evaluate the existing evidence with a view to determining the nature of the crimes committed by Khmer Rouge leaders in the years 1975–1979; to assess the feasibility of their apprehension; and to explore legal options for bringing them to justice before an international or national jurisdiction.34 Some 18 months later, the Group of Experts reported its recommendations: while they found mounting evidence of crimes and were supportive of judicial measures, the Experts argued that the best way to bring perpetrators to justice was through the establishment of an ad hoc tribunal under UN Chapter VII powers, similar to the ICTY and the ICTR.35 In their view, a tribunal, if established, needed to be located outside of Cambodia to be ‘insulated from the political pressures’ therein, yet preferably ‘somewhere in the Asia-Pacific region . . . [to] preserve for Cambodians the sense that trials were taking place in their own part of the world’.36 Justice was in other words to be internationally provided, and kept separate from national politics. The Cambodian government was unimpressed by the report and rejected its recommendations. Although the Prime Ministers had mentioned the tribunals for the former Yugoslavia and Rwanda in their letter, what the government wanted was not an international court but international assistance to a Cambodian court. Since sending the letter, the domestic situation had also changed somewhat. Not only had Hun Sen become the only Prime Minister, ousting Prince Norodom Ranariddh in what is often described as a coup,37 his government had also successfully captured and detained the last senior Khmer Rouge figure at large, Ta Mok.38 In this climate, Hun Sen was now suggesting that a domestic trial against the former leader might be more appropriate and, at the very least, considerably faster.39 Nevertheless, there was enough momentum for some kind of international involvement in a judicial process that the two parties – a task force headed

33 Ibid. 34 Kofi Annan, Identical Letters Dated 15 March 1999 from the Secretary-General to the President of the General Assembly and the President of the Security Council, UN GAOR, 53rd sess, Agenda Item 110(b), UN Doc A/53/850 (16 March 1999) annex (‘Report of the Group of Experts for Cambodia established pursuant to General Assembly resolution 52/135’) (‘UN Report of the Group of Experts’). 35 Ibid. [171]. 36 Ibid. [148]. 37 See, for example, Erik Paul, Obstacles to Democratization in Southeast Asia: A Study of the Nation State, Regional and Global Order (Palgrave Macmillan, 2010) 40. 38 Ta Mok was captured in March 1999. Note that Pol Pot died in April 1998. 39 ‘KR trial debate set for showdown’ (19 March 1999) Phnom Penh Post (online), www. phnompenhpost.com/national/kr-trial-debate-set-showdown.

The establishment of a court 43 by Deputy Prime Minister Sok An representing the Cambodian government, and the Office of Legal Affairs in the UN Secretariat under Hans Corell – to meet to negotiate a court. It took another four years of negotiations and a walk-out before an agreement was finally reached in 2003. While the story of the establishment of the ECCC can be told as beginning with the letter that triggered the negotiations, this account remains parsimonious. The establishment of a court involves more than simply producing and reaching an agreement, and more than the particular meetings and steps of the negotiations. Rather than focusing only on the events that followed the Prime Minsters’ letter, I believe, like Rebecca Gidley,40 that the process needs to be situated within the longer relationship between the UN and Cambodia. This relationship has both an immediate and a longer trajectory. For an account of this relationship, there are similarly many possible places at which to begin. First, consider again the immediate context in which the Prime Ministers sent the initial letter. Not only was there international involvement in addressing the atrocities in the former Yugoslavia and Rwanda, but the international community through the UN had by that point already been heavily involved in Cambodia. When the Khmer Rouge were ousted from Phnom Penh in 1979, they did not disappear but retreated to areas along the Thai border. Throughout the 1980s, a civil war between them and the Phnom Penh-based government ensued. In 1991, extensive Peace Agreements were signed between the parties in Paris,41 and as part of these Agreements, the UN established the Transitional Authority in Cambodia (UNTAC), a peacekeeping operation that during its active years of 1992 and 1993 had a measure of administrative control of the state. At the time, it was the largest and most encompassing operation the UN had ever undertaken, with at its peak 21,000 personnel.42 By 1997 when the Prime Ministers sent the letter, the UN’s presence in Cambodia had been significant for years. The Paris Agreements and the UN peacekeeping mission aimed to establish peace and a stable civil government, and to hold democratic elections.43 40 Rebecca Gidley, ‘Betrayal and Hypocrisy: The United Nations, Cambodia, and the Khmer Rouge Tribunal’ in Deborah Mayersen (ed), The United Nations and Genocide (Palgrave Macmillan, 2016) 54. 41 The Agreements consist of the ‘Final Act of the Paris Conference on Cambodia’, ‘Agreement on the Political Settlement of the Cambodia Conflict’, ‘Agreement Concerning the Sovereignty, Territorial Integrity and Inviolability, Neutrality and National Unity of Cambodia’, and the ‘Declaration on the Rehabilitation and Reconstruction of Cambodia’. See Jean-Bernard Merimee and Nugroho Wisnumurti, Letter Dated 30 October 1991 from the Permanent Representatives of France and Indonesia to the United Nations Addressed to the Secretary-General, UN GAOR, 46th sess, Agenda Item 24, UN Doc A/46/608 (30 October 1991) annexures. 42 On UNTAC, see, for example, Stephen Heder and Judy Ledgerwood (eds), Propaganda, Politics, and Violence in Cambodia: Democratic Transition under United Nations Peace-keeping (ME Sharpe, 1996). 43 More precisely to supervise the ceasefire, the end of foreign military assistance and the withdrawal of foreign forces; to regroup, canton and disarm all armed forces of the Cambodian parties, and ensure a 70 per cent level of demobilisation; to control and supervise the activities of the administrative structures, including the police; ensure and respect human rights; and to organise and conduct free and fair elections.

44  The establishment of a court Accountability or justice were not on the agenda.44 Indeed, at the time, the Khmer Rouge were considered one of the parties to the conflict and thereby also to the agreements, something that some commentators argue effectively legitimised them.45 During the negotiations for the peace agreement, the Cambodian government had attempted to include a condemnation of the ‘genocidal policies’ by the ‘Pol Pot regime’, but these attempts were watered down to a statement on the ‘non-return to the universally condemned policies and practices of the past.’46 But the Khmer Rouge did not live up to commitments made in the Peace Agreements: they did not disarm, they continued to launch attacks against civilians and against UNTAC personnel, and they threatened to sabotage the election. It was not until the end of the 1990s that they lost control over all territories and ceased to be a threat. This was not so much because of UNTAC, which was no longer operating, but because of continued political and military efforts by the government to break the group. This eventually resulted in the group effectively imploding after several key figures defected to the government.47 In the tripartite relation between the UN, the Cambodian government and the Khmer Rouge, there had in other words been moments when the UN treated the Khmer Rouge as a legitimate party, against efforts by the government to quell the group. This immediate history of the relation between the UN and the Cambodian government necessarily affected the negotiations. Yet, the relationship between the UN and the Cambodian government extends beyond the 1990s and the peace agreements and UNTAC. The current regime with Hun Sen as Prime Minister is direct successor to the State of Cambodia (1990–1991) and the People’s Republic of Kampuchea, or PRK (1979–1989), which together with Vietnamese forces had expelled the Khmer Rouge from Phnom Penh in 1979. The PRK was never recognised by the UN. More than that, the UN even repeatedly expressed a preference for the Khmer Rouge over the PRK as the country’s authority. For the first time in 1979, shortly after the Khmer Rouge were ousted from the capital, and then three more times until 1982, the question of credentials to represent Cambodia at the UN came before the UN General Assembly (GA). Each time, the vote in the UN GA was in favour of the Khmer Rouge.48 This was despite the fact that the Khmer Rouge only controlled a small part of the country on the Thai border, and despite general knowledge of atrocities. The debate preceding the vote in 1979 was intense, with several state representatives referring to the Genocide Convention, but a majority

44 Fawthrop and Jarvis, above n 25, 98. 45 Ibid. 101–2. 46 Compare statement at the Jakarta Informal Meeting and the UNGA letter. See Gidley, above n 40, 60. 47 Pailin province was amongst the last to be incorporated with the rest of the country and that was only in the late 1990s. See Fawthrop and Jarvis, above n 25, chapter 8. 48 Ramses Amer, ‘The United Nations’ Reactions to Foreign Military Interventions’ (1994) 31(4) Journal of Peace Research 425, 431. According to a US delegate in 1979, ‘The choice for us was between moral principles and international law. The scale weighed in favour of law, because that also served out security interests.’ Fawthrop and Jarvis, above n 25, 28–30.

The establishment of a court 45 nevertheless voted in favour of the Khmer Rouge.49 This majority included the United States, which 15 years later would legislate on the genocidal nature of the Khmer Rouge. But when the question of the credentials came up at the UN, an expansionist Vietnam was seen as a bigger problem and as the PRK was considered to be too close, even a puppet regime, to Vietnam, the credentials went to the Khmer Rouge.50 Throughout the 1980s, while fighting between the Khmer Rouge and PRK ensued, the Khmer Rouge continued to represent the country at the UN, and throughout this time the UN priority was Vietnamese troops leaving the country.51 Each year between 1979 and 1989, the UN GA issued resolutions calling for Vietnamese withdrawal.52 These actions by the UN suggested that the persons wronged were not those who had suffered under the Khmer Rouge but the population under Vietnamese occupation. Wronged in this account were also the Khmer Rouge, which were prevented from taking up their legitimate position in government in Phnom Penh. Notably, it was not until early 1998 – after the Prime Ministers had written their letter – that the UN in a General Assembly Resolution recognised that the Khmer Rouge had committed ‘the most serious human rights violations’ in DK.53 To understand the negotiations for the ECCC and even its operations, these events must be read for the way they left marks and traces for years to come. The many years of explicit and implicit support by the UN to the Khmer Rouge were not forgotten by the Cambodian government, for whom the UN refusal had had very real economic and social impacts. As Foreign Minister Hor Namhong put it at a meeting with the UN after the Group of Experts’ report in 1999: The international community talks about finding justice for the Cambodian people. Cambodia agrees to find justice for Cambodians and for humanity. But what has the international community been doing vis-à-vis the Khmer Rouge lately?  .  .  .  The so-called international community forced Cambodia

49 Seventy-one countries backed the Khmer Rouge, 35 voted against, 34 abstained. Fawthrop and Jarvis, above n 25, 30. 50 As Gidley explains, China had in a letter to the UN Security Council complained that Vietnam was waging a ‘massive war of aggression’ and had ‘committed towering crimes’ as part of an ‘expansionist strategic plan.’ Notably, this was also the position of Norodom Sihanouk, who described the Vietnamese action as ‘flagrant aggression’. Gidley, above n 40, 58. 51 UN, Summary, Cambodia-UNTAC Background, www.un.org/en/peacekeeping/missions/past/ untacbackgr1.html. 52 See, for example, The Situation in Kampuchea, GA Res 44/22, UN GAOR, 44th sess, 58th plen mtg, Agenda Item 31, UN Doc A/RES/44/22 (16 November 1989), which contains references to previous resolutions. Like these, the resolution begins by expressing the GA ‘Deploring foreign armed intervention and occupation in Kampuchea’. Also see Amer, above n 48. 53 Situation of Human Rights in Cambodia, GA Res 52/135, UN GAOR, 52nd sess, 70th plen mtg, Agenda Item 112(b), UN Doc A/RES/52/135 (27 February 1998) [15]. In 1988, the GA had in its ‘annual . . . resolution condemning the Vietnamese occupation of Cambodia’ alluded to the regime by reference to ‘the universally condemned policies and practices of a recent past’ but then failed to link this to the regime. See Paul Lewis, ‘U.N. Adopts Anti-Khmer Rouge Policy’, New York Times (online), 4 November 1988, www.nytimes.com/1988/11/04/world/ un-adopts-anti-khmer-rouge-policy.html.

46  The establishment of a court to accept the Khmer Rouge as partners in Paris peace talks . . . It said nothing about responsibility of the Khmer Rouge, let alone prosecution of them. But now that Cambodia has achieved peace and reconciliation, they call for an international tribunal. Can we trust them?54 As the Cambodian government hesitated to trust the UN, the UN representatives questioned the sincerity on the part of the Cambodian government in seeking trials. Despite having sent the letter that triggered the negotiations, Prime Minister Hun Sen has vacillated in relation to the Court. Less than a year after the letter, two former Khmer Rouge leaders, Nuon Chea and Khieu Samphan, defected to the government and were greeted with seemingly open arms. Hun Sen was quoted saying that the country should ‘dig a hole and bury the past’ as reconciliation was more important than a court.55 Although he sought to clarify the comment a couple of days later by adding that he also sought justice,56 his comment met with considerable criticism,57 adding to existing concern over a Royal Decree that (partially) pardoned Ieng Sary, former Foreign Minister under the CPK who had defected in 1996.58 For the UN, this suggested that the Cambodian government preferred political compromises against legal and criminal accountability. Although the political moves to overcome the Khmer Rouge made the Cambodian side seem hesitant about accountability, the attempts by the Cambodian state to hold Khmer Rouge officials to account are noteworthy. While the UN was stifled by the Cold War, even actively supporting the Khmer Rouge, the (mostly unrecognised internationally) Cambodian government repeatedly sought to hold those responsible for the atrocities between 1975 and 1979 to account. In 1979 and throughout the early 1980s, a number of former leaders and lower-level

54 Quoted in Gidley, above n 40, 66. 55 ‘We should not talk about any court. This is a time when we should talk about reconciliation,’ Hun Sen told the Associated Press. See Kay Johnson and Khuy Sokhoeun, ‘Khieu Samphan, Nuon Chea Join Government at Pailin’ (28 December 1998) The Cambodia Daily (online), www. cambodiadaily.com/archives/khieu-samphan-nuon-chea-join-government-at-pailin-12598. 56 Seth Mydans, ‘20 Years on, Anger Ignites Against Khmer Rouge’ (10 January 1999) New York Times (online), www.nytimes.com/1999/01/10/world/20-years-on-anger-ignites-againstkhmer-rouge.html. 57 See, for example, Human Rights Watch (HRW), Serious Flaws: Why the U.N. General Assembly Should Require Changes to the Draft Khmer Rouge Tribunal Agreement (30 April 2003) 10, www. hrw.org/report/2003/04/30/serious-flaws-why-un-general-assembly-should-require-changesdraft-khmer-rouge. 58 In 1996, Ieng Sary received a pardon through a Royal Decree for the in absentia death sentence at the People’s Revolutionary Tribunal in 1979. While critics were concerned over the pardon, it was reiterated during the negotiations and by Hun Sen that the pardon only related to the sentence. Once charged at the ECCC, Ieng Sary raised preliminary objections in relation to the pardon and amnesty, but in 2011 the Trial Chamber held that a blanket amnesty would contradict Cambodia’s obligations under international law to investigate and prosecute perpetrators of serious international crimes and that the decree is not applicable to the crimes under ECCC jurisdiction. Prosecutors v Nuon Chea, Khieu Samphan, Ieng Sary, Ieng Thirith (Decision On Ieng Sary’s Rule 89 Preliminary Objections (Ne Bis in Idem and Amnesty and Pardon)) (ECCC, Trial Chamber, Case No 002, 3 November 2011).

The establishment of a court 47 Khmer Rouge cadres were sentenced to time in ‘re-education’ or prison for their actions during the regime. This included the former guards at notorious security centre S-21 who spent one or two years in ‘re-education’.59 Furthermore, in 1979, mere months after the regime change, a People’s Revolutionary Tribunal was established to try Pol Pot and Ieng Sary in absentia for the crime of genocide committed during DK. This was a domestically organised tribunal, but with international support from a number of socialist states and individuals. During the hearings, 39 individuals bore witness to the horrors of the regime, and, as they would later at the ECCC, victims participated as civil parties with legal representation.60 In most international commentary, both the People’s Revolutionary Tribunal and the many smaller accountability measures are dismissed, with the Tribunal described as a show trial.61 Critics point to the way due process rules were not adhered to at the Tribunal, with, for example, a definition of genocide tailored to fit the charges, and the guilt of the two accused never seriously questioned.62 Meanwhile, a lack of research means that much remains unknown about the smaller measures. Perhaps their aim was not even accountability for past crimes, as Evan Gottesman argues. According to him, persons were not subjected to the measures for past atrocities or crimes, but for having demonstrated opposition or ‘continued “obstinate” resistance to the new regime’.63 Against this criticism, John Quigley, an international lawyer who provided legal advice at the People’s Revolutionary Tribunal, encourages us instead to recall that the Tribunal was held a time when the perpetrators were still at large and still constituting a threat. The Tribunal was then a means of deterrence, aimed at both the Khmer Rouge and its international supporters,64 and those who participated in ‘the proceedings were keenly aware that the attention drawn to the atrocities in court might save lives.’65 Furthermore, as Quigley points out, the country was in a shambles, and with so many needs, the mere fact that the new regime prioritised accountability is noteworthy.66

59 Suzannah Linton, ‘Putting Cambodia’s Extraordinary Chambers into Context’ (2007) 11 Singapore Year Book of International Law and Contributors 195, 212–13. 60 John Quigley, ‘Introduction’ in Howard De Nike, John Quigley and Kenneth Robinson (eds), Genocide in Cambodia, Documents from the Trial of Pol Pot and Ieng Sary (University of Pennsylvania Press, 2000) 1. 61 See, for example, Linton, above n 59; UN Report of the Group of Experts; Rachel Hughes, ‘Ordinary Theatre and Extraordinary Law at the Khmer Rouge Tribunal’ (2015) 33(4) Environment and Planning D: Society and Space 714. 62 See, for example, Linton, above n 59, 209. John Quigley, an international lawyer who was invited to the tribunal to give a legal opinion as to whether the acts attributed to the two accused amounted to genocide, describes instead how he reached his conclusions with reference to the Genocide Convention. See Quigley, above n 60, 2–7. 63 Evan Gottesman, Cambodia After the Khmer Rouge: Inside the Politics of Nation Building (Yale University Press, 2003) 62. 64 Hughes, above n 61, 5–6. 65 Quigley, above n 60, 18. 66 Ibid. 17–18.

48  The establishment of a court Hence, by the time the negotiations for what became the ECCC began in the late 1990s, the relationship between the UN and Cambodian government already had a history of mutual suspicion. Competing conceptions of justice prevailed, and part of the contestation was over what point – in time – events became relevant for the purposes of accountability. For the Cambodian government, events of the 1980s were fresh in memory and remained significant when ICJ became an established enterprise in the late 1990s. For the UN negotiators, the (in-)capacity of Cambodia to hold legitimate and legal proceedings was much more relevant. To understand the negotiations establishing the ECCC, we need to recall this contestation over the point of departure in the struggle for accountability and justice for the victims of the Khmer Rouge. To the negotiating table, the two parties arrived wary of one another, and it is to this table that I now turn. Negotiating authority A central issue during the negotiations for the ECCC concerned the nature of the tribunal, that is, whether it would be national, international and authorised under the UN Security Council, or some kind of hybrid. The UN representatives and the facilitators were reluctant to grant the Cambodian government too much authority. As noted above, the Group of Experts advocated in their 1999 report for an international tribunal, citing Cambodian domestic politics as a cause for concern. For the UN representatives, it was less important that the Cambodian government had already organised trials in 1979 (as these were taken to be merely show trials), and that they had continuously called for the Khmer Rouge to be held to account. Instead, it was more important for the UN representatives that the Cambodian national judicial system did not uphold international standards of due process. Several NGOs, both international (such as Human Rights Watch, or HRW, and Amnesty International) and Cambodian (under the Human Rights Action Committee) agreed. Because of defects in the Cambodian justice system, only a fully international tribunal established by the UN Security Council could deliver a legitimate process.67 But as Jarvis argues, this was never a viable option. First, because the Cambodian government simply refused, and second, because such a proposal would never have been accepted by China in the UN Security Council given its longstanding support to the Khmer Rouge.68 Some kind of mixed or hybrid tribunal was the only option. But what would a mixed or hybrid court hold? And in what ways is the ECCC ‘hybrid’ in nature? In biology, the concept of ‘hybridity’ refers to the crossing of two entities with the effect of a new and distinct entity. A hybrid court would in this sense 67 See, for example, HRW, above n 57, 2; Amnesty International, Kingdom of Cambodia: Amnesty International’s Position and Concerns Regarding the Proposed “Khmer Rouge” Tribunal (24 April 2003), www.amnesty.org/en/documents/asa23/005/2003/en/. 68 Helen Jarvis, ‘Trials and Tribulations: The Long Quest for Justice for the Cambodian Genocide’ in Simon M. Meisenberg and Ignaz Stegmiller (eds), The Extraordinary Chambers in the Courts of Cambodia (Asser Press, 2016) 13, 41.

The establishment of a court 49 be neither international nor national, but something else. When the negotiations began, there had never been a hybrid criminal tribunal.69 The first draft offered by the UN Office of Legal Affairs suggested a court that would be located in Cambodia but almost completely run from New York. It was hybrid by reference to place but not in authority, and the draft revealed, in the words of William Schabas, ‘unfortunate overtones of arrogance’.70 The first draft offered by Cambodia was not much better, providing for much cherry-picking and control by the government.71 Slowly the negotiations proceeded. The fundamental question of the nature of a court was reflected in a number of issues, most of which the parties initially disagreed on: How were the benches to be composed – would national or international judges comprise the majority?72 How would disagreements between the national and international sides be resolved?73 How was the partial amnesty granted Ieng Sary to be dealt with? And what about the rights of the accused, and the protection witnesses and victims?74 In January 2001, without all details having been settled, the Cambodian National Assembly went ahead and passed a law that established the ECCC. However, the law did not reflect important requirements presented by Corell on the part of the UN, and when the Cambodian side nevertheless argued that the law should take precedence over a future agreement, the UN negotiators refused. In February 2002, Corell announced that the UN were walking out from the negotiations over concerns that the law, on which the Cambodian side insisted, put international standards into question.75 For Corell, the problem was not any particular details but rather ‘the controlling authority’.76 The negotiations only resumed after a number of ‘concerned states’ intervened and through a GA resolution77 forced the UN negotiators back to the table. On 6 June 2003, the Agreement Between the United Nations and the Royal Government of Cambodia Concerning the Prosecution Under Cambodian Law of Crimes Committed During the Period of Democratic Kampuchea (‘ECCC Agreement’)78 was signed by Cambodian Deputy Prime Minister Sok An and UN Under-Secretary-General Hans Corell at the Chaktomuk Theatre in Phnom Penh, the same venue which in 1979 had hosted the People’s Revolutionary Tribunal. The Agreement was ratified in 2004 and entered into force in 2005.

69 While the negotiations in Cambodia ensued, the hybrid Special Court for Sierra Leone (SCSL) was established in 2002. 70 Quoted in Fawthrop and Jarvis, above n 25, 161. 71 Ibid. 72 Fawthrop and Jarvis, above n 25, 162. 73 Ibid. 163; Scheffer, above n 27, 393. 74 Scheffer, above n 27, 401. 75 Hans Corell, ‘Daily Press Briefing by the Office of the Spokesman for the Secretary-General’ (8 February 2002) in Ben Kiernan, ‘Cambodia and the United Nations – Legal Documents’ (2002) 34(4) Critical Asian Studies 611, 616–17. 76 Quoted in Gidley, above n 40, 68. 77 Khmer Rouge Trials, GA Res 57/228, UN GAOR, 57th sess, 77th plen mtg, Agenda Item 109(b), UN Doc A/RES/57/228 (18/12/2002). 78 ECCC Agreement.

50  The establishment of a court During this period, the Cambodian law on the ECCC was amended and promulgated in 2004, becoming the Law on the Establishment of the Extraordinary Chambers (‘ECCC Law’).79 Together, the ECCC Law and the Agreement establish the foundation and set out the authority of the Court. As noted in the introduction, the ECCC is a mixed, hybrid and internationalised court. It operates within the Cambodian domestic court system but with ‘international’ features, such as being funded in part through voluntary international donations, international staff through the UN, and having jurisdiction over the international crimes of genocide, crimes against humanity and grave breaches of the Geneva Conventions.80 Yet, rather than being fused into one, the two entities of national and international remain separate. Take the issue of staffing: each member of the staff at the Court is categorised as either ‘national’ or ‘international’. Important positions are held by both an international and a national staffer, providing for co-prosecutors (CPs), codefence lawyers, co-civil party lawyers and co-investigating judges (CIJs). This dual set-up of the staff has been mentioned as one of the benefits of hybrid tribunals, in particular as an opportunity by Cambodian professionals to learn from their international counterparts.81 Furthermore, this inclusion of ‘local jurist, lawyers and other staff’ has been suggested as something that ‘lends greater local ownership and thus legitimacy to the process.’82 Yet, the set-up also reinscribes the entities of ‘nationals’ and ‘internationals’ and their divide. For one, there are vast differences in the conditions of employment between the two, with ‘nationals’ earning less than half of their international counterparts.83 Furthermore, the scheme represents international staff as without any national affiliations and as constant experts, whereas the nationals are cast as perpetually tied to their nationality and in permanent need of learning.84 With the national, we see what Homi Bhaba describes as a ‘desire for a reformed, recognizable Other, as a subject of a difference that is almost the same but not quite.’85 The national remains threatening. This is perhaps most evident in the representation of judges. After prolonged discussions on the composition of the benches, it was decided that while national judges were to compose the majority, a super-majority was to be required for all decisions. This was then seen also as a way to ensure that there are

79 ECCC Law. 80 Alongside some national crimes such as homicide, torture and religious persecution from the Cambodian criminal code. ECCC Agreement [9]; ECCC Law [3]. 81 Legacy, ECCC, https://eccc.gov.kh/en/dss/legacy. 82 Beth van Schaack, ‘The Building Blocks of Hybrid Justice’ (2016) 44(2) Denver Journal of International Law and Policy 169, 242. 83 See UN Development Program, Office of Audit and Performance Review, Audit of Human Resources Management at the Extraordinary Chambers in the Courts of Cambodia (ECCC) Report No RCM0172 (4 June 2007) 10–11. 84 See Elizabeth M. Bruch, ‘Hybrid Courts: Examining Hybridity Through a Post-Colonial Lens’ (2010) 28(1) Boston University International Law Journal 1, 35–6. 85 Homi Bhabha, The Location of Culture (Routledge, first published 1994, 2012 ed) 123.

The establishment of a court 51 no decisions in which the national and international judges are in opposition.86 Thus, in the way the national and international are written into the structure and foundation of the ECCC, the two remain separate entities rather than being fused into a new one. This split has provided for contestations over victim representation. That is, as separate entities, the two parties to the ECCC Agreement continue to claim a position of being one who brings justice to victims. From the UN Group of Experts87 to Hun Sen, it is for the victims that trials must be held. When now turning to the way jurisdiction provides for victim representation, this split foundation provides for further contestations.

Jurisdiction and the victims of Democratic Kampuchea Extraordinary Chambers shall be established in the existing court structure, the trial court and the supreme court to bring to trial senior leaders of Democratic Kampuchea and those who were most responsible for the crimes and serious violations of Cambodian laws related to crimes, international humanitarian law and custom, and international conventions recognized by Cambodia, that were committed during the period from 17 April 1975 to 6 January 1979.88 With this statement, a court is established. With this, authority is proclaimed. With this, a time period is asserted, territory is delimited, a person represented. And without being explicitly mentioned, the contours of a victim figure are drawn. These contours are based on time (17 April 1975 to 6 January 1979), substance (‘crimes and serious violations of Cambodian laws related to crimes, international humanitarian law and custom, and international conventions recognized by Cambodia’) and person (in the form of accused persons described as ‘senior leaders of Democratic Kampuchea and those who were most responsible’). These are indicators of the Court’s jurisdiction. The contours of victims are thus based on jurisdictional practices of the Court. As noted above, jurisdiction as a practice makes authority ‘intelligible’. Etymologically, the word ‘jurisdiction’ derives from a combination of the Latin

86 There are three national judges and two international judges in the Pre-Trial and Trial Chambers, and four national judges and three international judges in the Supreme Court Chamber. In case there is disagreement between the national and international sides on important issues such as whether an investigation or prosecution should proceed, neither side is able to block the process but the issue goes instead to the Pre-Trial Chamber for a decision. 87 As the UN Group of Experts put it, ‘accountability first and foremost is a statement to the millions of Cambodian victims and their relatives and friends that their cries have at last been heard, providing the survivors with a sense of justice and some closure on the past.’ UN Report of the Group of Experts [2]. 88 ECCC Law art 2. ECCC Agreement art 1 is expressed in a similar vein (minus ‘shall be established’).

52  The establishment of a court ius – ‘law’ – and dicere – ‘to speak’, which makes jurisdiction ‘to speak law’. More precisely, it is a combination of iustus – ‘to law/legal’ – and dictio – ‘the saying of,’ thus jurisdiction is the (performative) practice of ‘saying to law’.89 As Rush puts it, jurisdiction ‘refers us first and foremost to the power and authority to speak in the name of the law’.90 In this way, through the saying of law, a subject – a person, state or institution – is made to appear and granted authority in certain matters, over certain persons, in certain places. This makes the matter, person or place ‘lawful’. The organisation of jurisdiction is manifold. In domestic settings, jurisdiction is often understood as a question of authority in relation to territory or function, as a way to distinguish between different regions or levels of government, or between specific matters such as, say, family and crime. Meanwhile, in international law, jurisdiction is primarily associated with the ordering of relations between states, and sometimes also with intrastate institutions. This ordering is made on the basis of certain principles: territory, nationality and passive personality.91 As a subfield of international law, ICL draws on this ordering of relations. Here, the starting point is usually the ‘competence of a specific tribunal to adjudicate cases that may be brought before it.’92 This latter understanding of jurisdiction calls attention to the institution and its particularities – the specific practices and techniques that express its authority. In ICL, the organising principles are referred to as elements, four rationae that establish and limit the authority: temporis (temporal), loci (territorial), personae (personal), and materiae (substantive or material). Accordingly, the temporal jurisdiction of a tribunal such as the International Criminal Tribunal for Rwanda is limited to the year 1994,93 the territorial jurisdiction of the International Criminal Tribunal for the Former Yugoslavia is contained to ‘former Yugoslavia’,94 the personal jurisdiction of the Special Court for Sierra Leone (SCSL) is specified as ‘persons who bear the greatest responsibility’,95 and the substantive jurisdiction of the ICC is limited to the three crimes of war crimes, crimes against humanity and genocide, with

89 See Dorsett and McVeigh, ‘Questions of Jurisdiction’, above n 10, discussing Beneviste at 3. 90 Peter Rush, ‘An Altered Jurisdiction: Corporeal Traces of Law’ (1997) 6 Griffith Law Review 144, 150. 91 See, for example, James R. Crawford, Brownlie’s Principles of Public International Law (Oxford University Press, 8th ed, 2012) 456; Gideon Boas, Public International Law: Contemporary Principles and Perspectives (Edward Elgar, 2012) chapter 6. 92 Sarah Williams, Hybrid and Internationalised Criminal Tribunals: Selected Jurisdictional Issues (Bloomsbury, 2012) 214. 93 SC Res 955, UN SCOR, 49th sess, 3453rd mtg, UN Doc S/RES/955 (8 November 1994) annex (‘ICTR Statute’) art 7. 94 SC Res 827, UN SCOR, 48th sess, 3217th mtg, UN Doc S/RES/827 (25 May 1993), as amended by SC Res 1877, UN SCOR, 64th sess, 6155th mtg, UN Doc S/RES/1877 (7 July 2009) (‘ICTY Statute’) art 8. 95 Agreement between the United Nations and the Government of Sierra Leone on the Establishment of a Special Court for Sierra Leone, signed 16 January 2002, 2178 UNTS 137 (entered into force 12 April 2002) annex (‘SCSL Statute’) art 1.

The establishment of a court 53 aggression as a possible fourth crime to be added in the future.96 These somewhat varying approaches to jurisdiction – domestic, international and internationalcrime-related – share a common understanding of jurisdiction as something that ‘makes lawful’, that makes a relation of law, and that concerns the authority to both inaugurate and delimit that which is law. The proclamation of authority in the ECCC founding laws is an expression of both what the Court can and cannot say. Given its international features, it is also an expression of what ICL can say – at this point and at this time. The jurisdiction of the ECCC covers a period during which much suffering was experienced. Much had already been written on the Khmer Rouge period before the ECCC began to operate, and to existing research and debates on the period and its violence, the ECCC actively contributes. While the suitability of criminal courts in the role as historians is contentious,97 the ECCC cannot avoid producing historical records. These records are not only of its own process and work, but through its decisions, proceedings and judgments it also produces an account of DK, and designates how and what violence and suffering in Cambodia is of international interest. According to the ECCC account, certain members of the CPK ‘shared a common purpose to “implement rapid socialist revolution through ‘a great leap forward’”’ with and through DK.98 As they took over the country, cities were evacuated99 and former officials of the defeated regime were killed.100 ‘New people’ were identified as ‘government officials, intellectuals, landowners, capitalists, feudalists and the petty bourgeoisie’101 or more generally as former city dwellers. These ‘new people’ or ‘17 April people’ stood in contradistinction to the ‘old-’ or ‘base people’ of the countryside.102 It is alleged that some groups were particularly targeted, including Buddhists monks and nuns, and members of the Muslim Cham and Vietnamese minorities.103 It is also alleged that the social basis for life was reorganised through the regulation of marriage.104 Worksites and cooperatives were set up, at which the population was subjected to impossible production objectives.105 There were purges: an elaborate security system, 96 Resolution RC/Res.6: Review Conference of the Rome Statute: The crime of aggression, ICC, 13th plen mtg (11 June 2010) (not yet in force), https://asp.icc-cpi.int/iccdocs/asp_docs/ Resolutions/RC-Res.6-ENG.pdf. 97 See, for example, Lawrence Douglas, The Memory of Judgment: Making Law and History in the Trials of the Holocaust (Yale University Press, 2001); Costas Douzinas, ‘History Trials: Can Law Decide History’ (2012) 8 Annual Review of Law and Social Science 273. Note that this is a slightly different question from the role of historians as experts at trials. 98 Prosecutors v Nuon Chea, Khieu Samphan (Judgment) (ECCC, Trial Chamber, Case No 002/01, 7 August 2014) [777] (‘Case 002/01 Trial Judgment’). 99 Ibid. [133]–[152], [547]–[552]. 100 Ibid. [682]–[687]. 101 Ibid. [169]. 102 Ibid. [517]. 103 Prosecutors v Nuon Chea, Ieng Sary, Khieu Samphan, Ieng Thirith (Closing Order) (ECCC, Trial Chamber, Case No 002, 15 September 2010) [156]–[157] (‘002 Closing Order’). 104 See Chapter 3 and 002 Closing Order [156]–[157]. 105 002 Closing Order [169].

54  The establishment of a court Santebal, held at least 196 security centres,106 and here internal and external enemies were re-educated or ‘smashed,’107 a euphemism for killed. At the epicentre of this security system stood S-21 in Phnom Penh, whose records note the deaths of 12,273/18,133 persons,108 almost all executed. In DK and during the period between 1975 and 1979, many lives were taken, many lives were lost. It will most likely never be possible to ascertain precisely how many, but an expert report requested by the ECCC suggests that somewhere between 1.7 to 2.2 million lives were taken during the regime, equivalent of somewhere between a fourth and a fifth of the population. Some succumbed to starvation, malnutrition and disease, but around half of those who died were killed in purges.109 During no other period or regime in modern Cambodia have so many people died, so many been forced to move. The ECCC contributes to what is known about this period, something that hopefully also sheds light on the processes of mass violence more generally. And yet. In a country that has experienced long and multiple conflicts,110 multiple periods of suffering, the jurisdiction of the ECCC distinguishes between suffering and suffering. Some individuals become victims relevant for law, others not. Jurisdiction provides a relation between the ECCC and those who suffered – but only with some. Many others are excluded. This exclusion is by no means accidental, but foundational to the making of the Court. Although Prime Minister Hun Sen at one point claimed the need for an investigation into the entire period of conflict between 1970 and 1998,111 the period of interest during the negotiations for the ECCC was always limited that of DK. In their report, the UN Group of Experts expressed the strong opinion that . . . the temporal jurisdiction . . . should be limited to the period of the rule of Democratic Kampuchea . . . [as] consideration of human rights abuses by any parties before or after that period would detract from the unique and extraordinary nature of the crimes committed by the leaders of Democratic Kampuchea.112

106 Prosecutor v Kaing Guek Eav alias Duch (Judgment) (ECCC, Trial Chamber, Case No 001, 26 July 2010) [109]–[110] (‘Duch Trial Judgment’). 107 Ibid. [99]–[101]. 108 The Duch Trial Judgment [208] gave the number 12,273, noting that the number was likely much higher. In Case 002, new evidence was presented that, if accepted, will raise the established number of deaths to 18,133. See Prosecutors v Nuon Chea, Khieu Samphan (Co-Prosecutors’ Amended Closing Brief in Case 002/02) (ECCC, Trial Chamber, Case No 002/02, 2 October 2017) [651]–[654]. 109 Eva Tableau and They Kheam, Demographic Expert Report: Khmer Rouge Victims in Cambodia, April 1975–January 1979 – A Critical Assessment of Major Estimates (ECCC, Doc No D140/ 1/1, 30 September 2009) 19, www.eccc.gov.kh/sites/default/files/documents/courtdoc/ D140_1_1_Public_Redacted_EN.PDF. 110 See further below. 111 Scheffer, above n 27, 382, citing a letter from Hun Sen to Kofi Annan. 112 UN Report of the Group of Experts [149].

The establishment of a court 55 Nevertheless, any description of the violence during DK that does not situate it in a broader context takes, as Suzannah Linton puts it, ‘a highly complex situation out of context and any understanding of what happened therefore risks being distorted.’113 The ECCC, through the delimitations of its jurisdiction, is in effect exceptionalising the violence and suffering of the Khmer Rouge regime. To understand how the ECCC exceptionalises the DK, it is necessary to pay attention to the cleaving between the legal and the a-legal, and not only to that which is included but also that which is excluded. In other words, it is necessary to question the starting points of the ECCC accounts. Doing so does not minimise the suffering of those who suffered at the hands of the Khmer Rouge and who are in social discourses represented as victims, but sheds light on the limits in the construction of the lawful victim, and unfolds more complex readings. So where to begin? Boundaries Let me begin with the boundaries. The ECCC has temporal jurisdiction over the period between 17 April 1975 and 6 January 1979. By themselves, the dates that delimit this period make little sense. Before 1975, 17 April was not a date that held any independent significance in Cambodia, nor did 6 January before 1979. But when the dates are given a spatial dimension, that is, are tied to the specific location of Phnom Penh, Cambodia, they signify the start and the end to the regime of DK. On 17 April 1975, the population of Phnom Penh watched as mainly young Khmer Rouge soldiers entered the streets. It is said that some citizens put up white flags while others cheered.114 Some may have been hopeful, seeing the entry as a possibility for peace after a long period of violence and conflict. Others were subdued, worried about what was to come.115 This is the date that marks the beginning of the regime of the CPK,116 more commonly known as the Khmer Rouge. The personal accounts of this date are many. Some three years, eight months and 20 days later, forces from the People’s Army of Vietnam and the National United Front composed of Cambodian dissident soldiers entered Phnom Penh. Their attack against the regime had begun in December, and with surprising ease they arrived in the morning of 7 January

113 Linton, above n 59, 196. 114 See, for example, Loung Ung, First They Killed My Father: A Daughter of Cambodia Remembers (Harper Collins, 2000) 18–19. 115 In The Elimination, director Rithy Panh writes, ‘Many books declare that Phnom Penh joyously celebrated the arrival of the revolutionaries. I recall instead feverishness, disquiet, a sort of anguished fear of the unknown.’ Rithy Panh with Christophe Bataille, The Elimination: A Survivor of the Khmer Rouge Confronts His Past and the Commandant of the Killing Fields (John Cullen trans, Other Press, 2012) 28. 116 The state did not formally take the name Democratic Kampuchea until 5 January 1976, when the National Congress passed the DK Constitution. Case 002/01 Trial Judgment [233].

56  The establishment of a court to Phnom Penh. 6 January 1979, the day marking the end of the temporal jurisdiction of the ECCC, is thus simply the day before the final takeover, a day on which many members of the CPK are assumed to have fled the capital. In contrast to the many accounts that depict the events on 17 April 1975, those from Phnom Penh 6 January 1979 are far fewer. This may be in part because the population in Phnom Penh was much smaller in 1979 than in 1975. Although Phnom Penh is sometimes claimed to have been empty during DK given that its population was evacuated in April 1975, the city continued to have a small population. These were workers of a few factories, schools, hospitals, security centres and governmental agencies that upheld the city as a ‘command and control node’117 for the country.118 Until the very end, the CPK central leadership remained in denial of their impending loss and only at the last minute did they issue an order to evacuate the city.119 And so, on and around 6/7 January 1979, the inhabitants of Phnom Penh – CPK leaders, governmental workers, their families and some prisoners – fled. Chum Mey, Vann Nath and Bou Meng, who at the time were imprisoned at security centre S-21, later described for the ECCC how they heard bombs, planes and tanks, and how they saw Khmer Rouge soldiers preparing for fighting on 7 January. Under gunpoint, they were told to evacuate the city on foot. Chaos ensued and at different points the three prisoners escaped.120 When Vietnamese troops entered the city on the morning of 7 January 1979, part of the city had already been deserted. Some places gave signs of unexpected and sudden departure, with food and laundry left out. Other places seemed instead to have been neglected for years, overtaken by nature.121 For all those Cambodian former city dwellers who during DK had been forced to live in countryside communes, it would take weeks, even months, before their lives returned to some kind of urban normalcy. In this way, 6 January is less symbolic than 17 April. In Phnom Penh, the new government announced 7 January to be a day of liberation, but for others it signifies Vietnamese invasion. This question of the nature of the takeover in 1979 is a question the ECCC takes no interest in, as its jurisdiction ends on the preceding day. Although it cannot help but occasionally include events that occurred on 7 January,122 it is here that the ECCC’s temporal jurisdiction ends. And sometime here, Democratic Kampuchea was replaced by the People’s Republic of Kampuchea.123

117 James A. Tyner et  al., ‘Phnom Penh During the Cambodian Genocide: A Case of Selective Urbicide’ (2014) 46(8) Environment and Planning 1873, 1878. 118 Ibid. 1884–8. 119 Duch in Transcript of Proceedings, Prosecutor v Kaing Guek Eav alias Duch (ECCC, Trial Chamber, Case No 001, 17 June 2009) 86 (‘Duch Trial Transcripts’). 120 Duch Trial Transcripts, 29 June 2009, 49–52 (Vann Nath); 30 June 2009, 15–19 (Chum Mey); 1 July 2009, 41–3 (Bou Meng). 121 Gottesman, above n 63, 10–11. 122 See, for example, Closing Order 002, 150, 155, 400, 416, 1350. 123 For an account of the PRK, see Margaret Slocomb, The People’s Republic of Kampuchea 1979–1989: The Revolution after Pol Pot (Silkworm Books, 2003).

The establishment of a court 57 In the accounts produced by the ECCC, 17 April 1975 marks the beginning and 6/7 January 1979 the end. But the CPK and the Khmer Rouge did not rise to power overnight, nor did they disappear immediately. Although the CPK were ousted from Phnom Penh in 1979, they did not dissolve or vanish, but instead simply withdrew to the border of Thailand. According to Prince Sihanouk, the Khmer Rouge could have been annihilated as a group at that point in 1979 had it not been for support from China, Thailand and the United States.124 For the latter at least, the support sought to undermine or at least provide a balance against a threatening Vietnam. As a result, the Khmer Rouge remained in control over some areas of the country until 1998, and throughout this longer period continued to launch attacks that maimed and killed. But as these attacks occurred after 1979, they cannot be heard at the ECCC. Similarly, the ECCC cannot hear any events that predate 17 April 1975, despite the fact that parts of the country were already under Khmer Rouge control in 1970.125 Indeed, by 1974 most of the country except Phnom Penh and some provincial centres was under CPK rule.126 In these Khmer Rouge-controlled areas, many of the practices that are treated at the ECCC as crimes – such as forced evacuation, torture and killings in security centres – began to occur long before April 1975. But due to the temporal jurisdiction, these practices cannot be treated as crimes. The use of Phnom Penh as representative of the nation as a whole reflects an urban bias on the part of the ECCC, a bias that privileges the suffering experienced by urban dwellers at the hands of the CPK. It privileges the experience of those who were in Phnom Penh in April 1975 – city dwellers and internally displaced people – over those who experienced the escalation of violence that occurred as the CPK gradually took over the country. Noticeably, this bias inverts the, albeit much more violent, bias of the CPK that privileged the rural and agrarian over the urban. This latter bias was described in the ECCC Trial Chamber Judgment as ‘the revolution’s ideological class goals’ in which ‘“colonialists and imperialists”, i.e. city dwellers, intellectuals, government officials and petty bourgeois, were overthrown, turned into peasants’.127 The ECCC bias still means that a distinction is made amongst individuals who suffered from forced evacuation through a preference for those forced from Phnom Penh. The reliance upon Phnom Penh thus contributes with the temporal boundary to privileging the city over the rest of the country.

124 Fawthrop and Jarvis refer to Prince Sihanouk, who claims that in May 1979 the Khmer Rouge could have been put to rest terminally. Fawthrop and Jarvis, above n 25, 54–5; see also Chapter 4 at large on the support to the Khmer Rouge. 125 Under the control of the Revolutionary Army of Kampuchea (RAK). See Craig Etcheson, Rise and Demise of Democratic Kampuchea (Westview, 1984) 104, providing maps of the genomilitary situation. 126 Slocomb, above n 123, 18. 127 Case 002/01 Trial Judgment [544].

58  The establishment of a court The usage of Phnom Penh as the temporal and spatial marker also privileges the violence committed by the CPK over violence committed by any other group and at any other time. The people living on the soil of Cambodia have experienced violence, war and suffering before, during and after the period during which the CPK controlled Phnom Penh. Yet, all those who suffered outside of this period are excluded from representation as victims at the ECCC. To further make visible the boundary produced by the ECCC, I now turn to a brief account of the period before DK and examine the way this appears at the ECCC.128 Attending to the period preceding DK accentuates the boundaries around the figure of the victim produced at the ECCC and complicates the ECCC narrative. The exceptionalisation of Democratic Kampuchea In his examination of Cambodia from 1975–1982, historian Michael Vickery129 begins with a description of the arrival of a few urban dwellers at the Cambodian countryside. His account of the arrival is characterised by the hostility and suspicion the urban dwellers faced, and the lack of ‘proper’ food they experienced in the area.130 He describes other meetings, one in a village ‘where the men . . . like to joke over a fresh turtle dinner about the similarity in taste of that animal’s liver to the human variety,’131 and recounts execution practices that can only be labelled as brutal to the verge of gore. At first, these episodes with their brutality and urban/rural hostility seem to epitomise the Khmer Rouge regime. In so many ways, the Khmer Rouge period has come to stand for inhumane violence and its cadres as paranoid, even mad. Yet, the events Vickery describes are not from DK but predate it (from 1962, 1966 and the 1940s respectively). They are not, therefore, necessarily describing practices that are essential to or of the group known as the Khmer Rouge. In his book, Vickery takes aim at what he calls a Standard Total View that has come to dominate writings on the DK period. The argument that he makes is partly a methodological one: writers on DK have, instead of critically examining primary data, tended to unquestionably repeat earlier claims, or they have used uncorroborated testimonies by Cambodian refugees in Thai refugee camps without any scrutiny. This has produced a hegemonic view of the period. Alongside this methodological criticism is a substantive one: in the hegemonic or ‘Standard Total View’, one event tends to be taken as representative of the entire regime, leaving no recognition of internal differences, whether temporal or spatial, or of the way some practices pre-dated the regime.132

128 There is no section on the period after DK because events of this period are never treated as evidence at the ECCC. Instead, I believe this period feeds into the contestations between the UN and the Cambodian government discussed above. 129 Vickery, above n 14. 130 Ibid. 1–2. 131 Ibid. 4. 132 Ibid.

The establishment of a court 59 I begin this section on the period before DK with Vickery’s account because I fear that the ECCC with its authority to only hear events after 1975 reinforces a certain exceptionalisation of DK and the Khmer Rouge that a-historicises the events at the expense of a much more complex story. This in turn exceptionalises the victimisation of some to the exclusion of others. Before examining the ECCC’s approach, consider briefly the period preceding DK. The years before DK were violent.133 There was intrastate violence, violence against colonial powers and elites, against burgeoning communist forces, and between all of these factions. The violence in Cambodia from the early 1950s to 1975 can be read as either several different conflicts with multiple parties involved, or as part of a larger Second Indochina War that also engaged Vietnam and Laos.134 Cambodia’s colonial past is at times difficult to disentangle from other parts of what was once French Indochina, and some scholars even make a point of this interconnectedness by beginning their accounts of the Khmer Rouge with the rise of communism in Vietnam.135 Cambodia came under French colonial rule in 1863, but very little was done by the French to modernise the country.136 Instead, the French saw the Cambodian population as ‘noble savages’, not able to run their own country.137 After World War II and the reimposition of French rule after the brief Japanese occupation, nationalist resistance began in earnest. A number of different groups and factions, some communist, others anticommunist, joined forces as the Khmer Issarak (‘free’ or ‘independent’ Khmer), fighting for independence and the ousting of the French. Alongside and at times within this national struggle, communism grew. In 1951, a Cambodian communist organisation was established from the Indochinese Communist Party,138 with a reorganisation in 1960 that formed the CPK.139 Meanwhile, internal tensions within the Khmer Issarak were evident: between communists and anticommunists, and between Vietnam-supported communists and China-supported communists who saw Vietnam as another imperial power. This struggle for independence involved fighting and violence. Some of the violent practices attributed to the Khmer Rouge were occurring already during this period and group. This includes the episodes described above with the brutal execution and the light

133 On the period before 1975, see, for example, Ben Kiernan, How Pol Pot Came to Power: Colonialism, Nationalism, and Communism Cambodia 1930–1975 (Yale University Press, 2nd ed, 2004); Ben Kiernan, ‘Introduction, Conflict in Cambodia, 1945–2002’ (2002) 34(4) Critical Asian Studies 483; David Chandler, A History of Cambodia (Westview Press, 1983) Introduction, chapters 6–7; David Chandler, Tragedy of Cambodian History, above n 14, chapters 6–8; Vickery, above n 14. 134 Etcheson, above n 125, 75. 135 James A. Tyner, The Killing of Cambodia: Geography, Genocide and the Unmaking of Space (Ashgate, 2008) 21. 136 David Chandler, A History of Cambodia (Westview Press, 3rd ed, 2000) 154; Kiernan, How Pol Pot Came to Power, above n 133, xlix. 137 Gottesman, above n 63, 15. 138 Vickery, above n 14, 211. 139 Under repression and pressure from the Sihanouk government, many of the initial members were forced into exile in Hanoi. Vickery, above n 14, 212–13; Ben Kiernan, The Pol Pot Regime: Race, Power and Genocide in Cambodia under the Khmer Rouge 1975–79 (Yale University Press, 3rd ed, 2008) 13, ‘the study meeting at the railroad station’.

60  The establishment of a court joking of eating human livers, which are attributed to the Issarak.140 While an origin may not be traceable, it is clear that episodes of eccentric violence and terrible suffering occurred long before Phnom Penh was ruled by the CPK.141 Cambodia became independent in 1953 and sought under the leadership of Prince Norodom Sihanouk a position of neutrality. For Sihanouk, communism was antithetical to neutrality, and communists were actively targeted. As a result, many communists were during the 1950s forced into exile in Vietnam or underground in the jungle. As civil war broke out in 1967, the United States escalated its war in Vietnam, and Cambodia became caught up in that conflict too. Sihanouk struggled to keep the country neutral. Displeased with this position, in 1970 Prime Minister General Lon Nol staged a coup and deposed Sihanouk from power. Operating from exile in Beijing, the still immensely popular Sihanouk declared war on the plotters. Proposing coalitions142 with the group he called the Khmer Rouge, he broadcasted a call on his ‘children . . . to engage in guerrilla warfare in the jungle against our enemies.’143 Although Sihanouk’s speech had little effect in Phnom Penh, in the countryside the speech was played repeatedly on audio cassettes, something that lead to thousands adhering to ‘the call from Prince Papa to drive out the Americans.’144 Meanwhile, once in power, Lon Nol abandoned Sihanouk’s neutrality policy and went into direct confrontation with Vietnam. As a result, his regime received support from the United States while Vietnam started to more actively back the CPK. And while this civil war between Cambodians ensued, the country remained a proxy for the fighting between Vietnamese and US forces. The borders between Cambodia and Vietnam had become increasingly porous, and in 1969 President Nixon sought to stop leakages by bombing the Cambodian countryside. Between 1969 and 1973, the United States heavily bombed eastern Cambodia145 to cut supplies to the Vietcong. This further drove many to join the Khmer Rouge.146 140 David Chandler points out in his book on S-21 that there is much evidence on violence and violent practices in use from the Angkorean time until the Khmer Rouge. The difference is that this violence was more often related to executions and public spectacles and rarely in secret or for the purpose of obtaining ‘confessions’ as was the case at S-21. See Chandler, Voices from S-21, above n 14, 120. 141 To be perfectly clear, I am not saying that there is some kind of ‘trait’ of violence inherent in the Cambodian culture or nature; to do so would assume that the violence and wars here are of a fundamental difference to that of other places and in other times. Rather, the point I wish to make is that some of the violent practices that are attributed to the ‘Khmer Rouge’ predate the existence of the group. 142 National Unity Government (GRUNK), a National Liberation Army and a National United Front of Kampuchea (FUNK). 143 Quoted in Chandler, Tragedy of Cambodian History, above n 14, 201. 144 Ibid. 145 Exactly how much the United States bombed Cambodia is still somewhat unclear. The figure of some 500,000 tons dropped on Cambodia is widely suggested. In 2007, Kiernan and Taylor suggested the figure might be much higher but they have since revised it, again reaching a total of around 500,000 tons. See Ben Kiernan and Taylor Owen, ‘Making More Enemies than We Kill? Calculating U.S. Bomb Tonnages Dropped on Laos and Cambodia, and Weighing Their Implications’ (2015) 13(17) The Asia-Pacific Journal, http://apjjf.org/Ben-Kiernan/4313.html. 146 Kiernan argues that ‘Pol Pot’s revolution would not have won power without US economic and military destabilization of Cambodia’. Kiernan, The Pol Pot Regime, above n 139, 16. See also Linton, above n 59, 198, referring to Michael Kirby’s Report of the Special Representative of the Secretary-General on the Situation of Human Rights in Cambodia.

The establishment of a court 61 Throughout Lon Nol’s presidency, there was further violence and suffering. It is estimated that during the five years of his regime, some 300,000 people fled across the border to Vietnam, seeking refuge from his anti-Vietnamese policies that killed and massacred hundreds. Phnom Penh remained relatively sheltered from the worst violence of the war, and as a result its population swelled from around 600,000 in 1970 to somewhere between 1.5 to 2.6 million in 1975.147 Towards the end, the situation there is said to have been dire with overcrowded hospitals and lack of medicine.148 Additionally, the US bombings are believed to have killed over 100,000 people. The total number of Cambodians killed during the five years immediately preceding the Khmer Rouge takeover of Phnom Penh – through fighting between Cambodian factions and through US bombings – is believed to have been some 250,000.149 These events are precluded from appearing as crimes at the ECCC because they precede the Court’s temporal jurisdiction. The deaths cannot be war crimes or crimes against humanity, the refugee flows cannot be forced population movement. Those who suffered from it cannot appear as victims for the purposes of ECCC law. There is a temporal cleavage, a before and after, a boundary upon which hinges the authority to find something amounting to crime. This cleavage of a before and after 1975 has not escaped criticism. Accused person Nuon Chea (former ‘Brother No 2’ in the CPK) has consistently claimed that the Court is unfair for only looking at events that occurred between 1975 and 1979. He does not deny that there was violence during the regime of which he was a part, but he claims that this was in response to threats from Vietnam. According to him, the ECCC fails to contextualise the period, and fails to see the existential threat that was posed by Vietnam. At the heart of his argument is a claim that the ECCC is partial: at the ECCC, ‘only the body of the crocodile is to be discussed, not its head or the tail’.150 Alongside his claim that the ECCC is misconstruing his responsibility for alleged crimes151 is one that the ECCC is misconstruing what went on during the time and what is relevant to consider. This can then be taken as a claim of misconstruing the representation of victims and victimisation. While Nuon Chea makes these arguments as part of his defence, he is joined in his criticism by persons who self-identify as victims of the Khmer Rouge. For example, civil society activist Theary Seng has repeatedly argued that the Court

147 Tableau and Kheam, above n 109, 19 and section 4.2. 148 Vickery cites an official US report that provides a dire description of the conditions at the hospitals in Phnom Penh with ‘overcrowd[ing and] . . . acute shortage of medicine and drugs. Death frequently resulted from infection and lack of proper care.’ ‘United States Report’ cited by Vickery, above n 14, 82. 149 Tableau and Kheam, above n 109, 19. Notably, the authors dismiss the previously commonly cited figure of 600,000 deaths that stems from a 1980 CIA report as ‘unrealistic’: 5. 150 Defendant Nuon Chea, former Brother No 2 in Case 002/01 Trial Transcripts, 22 November 2011, 77; Prosecutors v Nuon Chea, Khieu Samphan (Nuon Chea’s Closing Brief in Case 002/02) (ECCC, Trial Chamber, Case No 002, 2 May 2017). 151 Prosecutors v Nuon Chea, Khieu Samphan (Nuon Chea’s Closing Brief in Case 002/02) (ECCC, Trial Chamber, Case No 002, 2 May 2017) [349] nn.

62  The establishment of a court should expand its jurisdiction to investigate the US bombings that caused so much suffering.152 But as these events fall outside the scope of the Court’s jurisdiction, it cannot attend to them. Nonetheless, the exclusion of events and practices predating April 1975 is not complete but only for the purpose of translation into crimes.153 The ECCC does include events that predate 1975, but their presentation is narrowly construed. In the ECCC proceedings, preceding events appear primarily in one of three ways. First, they appear as evidence of the accused person’s mode of liability. Events, statements and documents predating 1975 appear as evidence on the structure and relations of communication within the CPK in order to establish responsibility and liability of the accused. For example, the fight for independence against France and Lon Nol’s coup in 1970 are briefly referred to in the 002 Closing Order but only to frame the establishment of CPK structures.154 During the first trial against the former leaders, an entire segment was devoted to the ‘historical background of Democratic Kampuchea,’ and a number of witnesses were called to give testimony on issues and events that occurred before 1975. Amongst the expert witnesses was historian David Chandler, who has written extensively on the longer history of Cambodia.155 But when he was asked about anything that preceded 1975, this was limited to the set-up of the CPK.156 Accordingly, although facts predating 1975 are accepted as evidence in the Trial Chamber Judgment, this is only to establish the roles and interactions of the accused persons. Second, events predating 1975 are presented at the ECCC to demonstrate the development of policies that became alleged crimes. This presentation of pre1975 events as ‘lead-ups’ or ‘practice runs’ figures in both Case 001 and 002. For example, in Case 002 the Trial Chamber notes how already in 1970, villagers were removed from their homes and sent to cooperatives.157 As zones were ‘liberated,’ cooperatives and worksites began to be set up from 1972 onwards.158 But it is only when the CPK takes over Phnom Penh and forces its population to move into cooperatives that ‘crimes’ were committed. Similarly, before Kaing Guek Eav, alias Duch, accused person in Case 001, became head of S-21, he presided over another security centre from 1971 onwards. And though his actions at this centre were examined by the Court, they were presented merely as paving the way for his crimes at S-21.159 In this way, anything that occurred before 1975 figures as forming relations, (inevitable) stepping stones to the crimes.

152 Luke Hunt, ‘Kissinger in Cambodia’ (20 November 2012) New York Times (online), https:// latitude.blogs.nytimes.com/2012/11/20/protests-greet-obamas-visit-to-cambodia. 153 On the practice of translation, see Chapter 3. 154 002 Closing Order [18]–[32]. 155 Chandler, History of Cambodia, above n 133; Chandler, Tragedy of Cambodian History, above n 133. 156 In Case No 002/01, Chandler testified over five days: 18–20 and 23–24 July 2012, most of which covered his research on the DK period. The outline of his testimony is set on 18 July 2012. See Case 002/01 Trial Transcripts, 18 July 2012, 19–20. 157 Case 002/01 Trial Judgment [104]. 158 Ibid. [113]. 159 See Duch Trial Judgment [115]–[118]; Duch Trial Transcripts, 8–9, 20, 21 April 2009.

The establishment of a court 63 Third, there are curious narrations of earlier events that seem both to recognise suffering and preclude its representation as victimisation. While the Closing Order for Case 002 limits the ‘historical background’ to events relevant for the structures of the CPK, the Trial Chamber Judgment in the same case provides a more comprehensive background, stating that ‘the events during the Democratic Kampuchea era must be understood within the context of events that preceded it.’160 There are, for example, in the Historical Background section references to the ‘tens of thousands [] killed’ by the bombings by the United States161 and the dire situation regarding food and sanitation in Phnom Penh in 1975.162 Yet, these remain as statements confined to the background. When the judges turn to their legal findings, nothing of this information is presented as evidence or forms part of crimes. While some submissions by the defence regarding events preceding 1975 are explicitly dismissed, most of the historical background is simply left aside, literally marginalised as ‘background.’ In this way, the Court does not ignore or exclude events that preceded DK, but can only attend to them in a very limited way. Events can evidence the construction of what was to come, but not independently constitute crimes. In a sense, the ECCC disavows the violence; it sees the violence and the suffering but cannot translate it into crimes. For the representations of victims, 17 April 1975 is thus a significant boundary. Although the country experienced war, chaos and suffering much earlier, those who suffered during these times cannot figure as lawful victims at and for the ECCC. Compared to the often explicit descriptions of suffering during DK, there are no references to how Cambodians experienced the French colonial authorities or whether they suffered in the fight against this.163 In its inevitable role as producer of knowledge on the responsibility of victimisation in Cambodia, the ECCC’s exclusive focus on the victims of DK occludes the victimhood of those who suffered and of those who were killed before and after. The accused and the victim The representation of a victim at the ECCC is contingent on there being a person accused of having committed the crime, the act of victimisation. Without a person to hold to account for the commission of a crime, the Court cannot represent the person who suffered it as a victim. While this may be self-evident from a domestic criminal law perspective, it is worth repeating when considering practices of victiming on an international(ised) level. Here, accused persons are not as often held to account for having physically killed someone (for example) as for having ordered, planned, or aided and abetted the crimes.164 Thus, the modes 160 161 162 163

Case 002/01 Trial Judgment [79]. Ibid. [155]. Ibid. [158]. Compare Duch Trial Judgment [81]: ‘The first developments of the history of communism in Cambodia are closely linked with the fight against French colonial authorities and especially the armed struggle after World War II, carried out by Khmer Issaraks and the Indochina Communist Party’. 64 As per ECCC Law art 29, a person is held individually responsible for the listed crimes if s/he 1 ‘planned, instigated, ordered, aided and abetted, or committed the crimes’.

64  The establishment of a court of liability of international crimes mean that the accused persons often hold some kind of leadership positions, and at issue is often whether they are responsible for an established atrocity, not whether an atrocity has occurred. This produces something of a distance between the perpetrator and the victim that is distinct for ICL, a distance that in turn may cause tensions between on the one hand the promises of ICJ of accountability and representation as a victim, and on the other hand the strict regulations around the appearance of accused persons and thereby of victims. At the ECCC, this tension is accentuated by a strictly limited personal jurisdiction. Personal jurisdiction refers to and delimits the persons the Court has authority over for the purposes of investigation, prosecution and ultimately holding responsible for the commission of crimes. At the ECCC, there is also an explicit investigatorial and prosecutorial strategy. The reliance upon an accused person for the representation of the victim means that the question of whom to investigate and prosecute is of significance for the practices of victim representation at the ECCC. This is also a question that has been contested, both within the Court and in external commentary. Here, the issue is often presented as a conflict between law and politics, where law is threatened by political interference. By late 2017, five individuals in two cases (001 and 002) have appeared before the Trial Chamber and five more individuals in two more cases (003 and 004) have been or are under investigation. In July 2007, a year after judges and co-prosecutors were sworn in, investigations were opened into the criminal responsibility of five suspects. Shortly thereafter, Duch, who was already held in Cambodian detention, was charged in Case 001. In 2009, he was found guilty of crimes against humanity and grave breaches of the Geneva Conventions for crimes he committed as Chairman of security centre S-21.165 Shortly after Duch was charged, four surviving leaders of CPK were arrested and charged in what became Case 002. All four held senior leadership positions at the centre of DK: Nuon Chea was known as Brother No 2 and acted as Chairman of the DK National Assembly and Deputy Secretary of the CPK; Khieu Samphan was Head of State of DK; Ieng Sary was known as Brother No 3, was a member of the Central Committee and acted as Foreign Minister and Deputy Prime Minister of DK;166 and Ieng Thirith was Minister of Social Affairs, and although not a member of any of the committees, was considered a senior figure as both a minister and due to family ties (married to Ieng Sary and sister-in-law of Pol Pot). In November 2011, Ieng Thirith was found unfit for trial due to dementia, and in August 2015, she passed away. Ieng Sary participated in the first sections of the trial but died in March 2013, before any judgment was issued. Thus, left in Case 002 are Nuon Chea and Khieu Samphan. Due to the complexity of the case, it has been split into two trials,167 and upon completion of the first, Khieu Samphan and Nuon Chea 165 Duch Trial Judgment. 166 Ieng Sary also represented Cambodia at the UN for much of the 1980s. 167 Prosecutors v Nuon Chea, Khieu Samphan (Decision on Severance of Case 002 following Supreme Court Chamber Decision of 8 February 2013) (ECCC, Trial Chamber, Case No 002, 26 April 2013).

The establishment of a court 65 were found guilty of crimes against humanity.168 They are at the time of writing waiting for the judgment in the second trial.169 While some of the decisions in the proceedings have been controversial in this case, the identification and charging of these five individuals has never been overly contested.170 Two more cases that examine the criminal responsibility of five more individuals were opened in 2009. Cases 003 and 004 involve Meas Muth, who was navy commander and a division leader; Sou Met, air force commander and division leader; Yim Tith, leader at first district and then zone level; Ao An, Deputy Secretary of the Central Zone; and Im Chaem, district leader. In 2015, the case against Sou Met was dropped due to his death two years prior,171 and in 2017, the CIJ dismissed the charges against Im Chaem on jurisdictional grounds.172 The cases are fiercely contested, not least since the international CP acted alone in requesting them. So what then is the personal jurisdiction of the ECCC? The ECCC personal jurisdiction was always meant to be narrowly construed. At no stage during the negotiations for the ECCC was it suggested that a court would prosecute ‘all’ or even large numbers of persons who committed crimes during DK.173 Yet, the exact parameters of the personal jurisdiction are disputed. The ECCC Agreement stipulates that ‘the Extraordinary Chambers have personal jurisdiction over senior leaders of Democratic Kampuchea and those who were most responsible for the crimes’ specified in the Agreement.174 Perhaps not surprisingly, this was initially read as expressing the personal jurisdiction of the Court. On that basis, at the end of his trial, Duch made submissions disputing the ECCC’s jurisdiction over him as he had not been a senior leader, nor did he qualify as ‘one of 168 More specifically the crimes against humanity of murder and other inhumane acts carried out in the course of (forced) population movement and at Tuol Po Chrey (the latter a site to which many officials of the Lon Nol Republic were taken and killed). Notably, the Supreme Court Chamber reversed the conviction of the crime against humanity of extermination and only affirmed the crime against humanity of persecution on political grounds in relation to parts of phase two of the population movement. Prosecutors v Nuon Chea, Khieu Samphan (Appeal Judgment) (ECCC, Supreme Court Chamber, Case No 002/01, 23 November 2016) VI Disposition. 169 The second trial dealt with the alleged crimes of genocide against Cham and Vietnamese, internal purges, the regulation of marriage, treatment of Buddhists and a number of particular crime sites composed of worksites, cooperatives and security centres. Updates on the proceedings can be found at the ECCC: www.eccc.gov.kh/en. 170 Khieu Samphan disputed the Court’s jurisdiction on the basis that he ‘was never a political decision maker, nor did he have effective or operational power’. However, the Trial Chamber treated these claims as questions of facts concerning his responsibility and not jurisdiction. Case 002/01 Trial Judgment [14]. 171 Prosecutors v Sou Met (Public redacted dismissal of allegations against Sou Met) (ECCC, Office of the Co-Investigating Judges, Case No 003, 2 June 2015). 172 Prosecutors v Im Chaem (Closing Order (Disposition)) (ECCC, Office of the Co-Investigating Judges, Case No 004, 22 February 2017) (‘Im Chaem Closing Order Disposition’); Prosecutors v Im Chaem (Closing Order (Reasons)) (ECCC, Office of the Co-Investigating Judges, Case No 004, 10 July 2017) (‘Im Chaem Closing Order Reasons’). 173 Prosecutor v Kaing Guek Eav alias Duch (Appeal Judgment) (ECCC, Supreme Court Chamber, Case No 001, 3 February 2012) [61] (‘Duch Appeal Judgment’); ‘certain Khmer Rouge officials’ necessarily precludes others [52]. 174 ECCC Agreement art 2 (emphasis added).

66  The establishment of a court those most responsible’.175 The Supreme Court Chamber (SCC) did not agree.176 In its finding, the SCC also clarified the personal jurisdiction of the ECCC. According to the SCC, the personal jurisdiction of the ECCC covers and is limited to ‘Khmer Rouge officials.’177 In first considering the two categories of ‘senior leader’ and ‘those most responsible’, the SCC finds that having held a senior leadership position cannot itself suffice in meeting the jurisdictional criteria. Instead, to be subject to the Court’s jurisdiction, a person must also have been amongst those most responsible.178 In its finding, it draws on Scheffer’s comments that it ‘would have been unfair to those senior Khmer Rouge leaders who may not have exercised significant responsibility for the atrocity crimes and yet would be subject to the tribunal’s jurisdiction solely by virtue of their leadership position.’179 Thus, a person must have been amongst those most responsible to be investigated and prosecuted at the ECC. Yet, although the founding documents refer to ‘senior leaders’ and ‘those most responsible’, the SCC finds that these are not justiciable categories, as ‘the determination of whether an accused is “most responsible” requires a large amount of discretion’ as there are no ‘sharpcontoured, abstract and autonomous criteria’.180 And as non-justiciable,181 they cannot be jurisdictional criteria. Nevertheless, the two categories share a common denominator, namely being a ‘Khmer Rouge official’.182 In contrast to the discretionary categories of ‘senior’ and ‘most responsible’, whether a person was a ‘Khmer Rouge official’ is ‘a question of historical fact that is intelligible, precise, and leaves little or no room for the discretion’.183 And as a factual question, it is justiciable. Thus, notwithstanding that this was never an official title,184 the SCC finds that the personal jurisdiction at the ECCC encompasses the rather large category of ‘Khmer Rouge official.’ While the categories of ‘senior leaders’ and ‘those most responsible’ are precluded from being conceptualised as jurisdictional requirements, the SCC finds that they remain relevant as ‘investigatorial and prosecutorial policy for the Co-Investigating Judges and Co-Prosecutors’.185 The categories are repeatedly 175 Duch Trial Transcripts, 15 November 2009, 107–17. Alexander Laban Hinton, Man or Monster? The Trial of a Khmer Rouge Torturer (Duke University Press, 2016) provides an excellent description of the confusion in Duch’s last submissions. Duch also claimed the two were to be read together so that a person must have been a senior leader and one of those most responsible to meet the jurisdictional criteria. Duch Appeal Judgment [45]. 176 The Trial Chamber rejected Duch’s submission on the basis that such a defence constitutes a preliminary objection that must be raised at the Initial Hearing: Case 002/01 Trial Judgment [14]–[15]; ECCC, Internal Rules (Rev 9) (adopted 16 January 2015) r 89(1)(a). The Supreme Court Chamber agreed to hear Duch’s appeal on the question of personal jurisdiction, but ultimately rejected his appeal: Duch Appeal Judgment [81]. 177 Duch Appeal Judgment [61]; ‘certain Khmer Rouge officials’ necessarily precludes others [52]. 178 Duch Appeal Judgment [57]. 179 Scheffer, quoted in Duch Appeal Judgment [56]. 180 Duch Appeal Judgment [62]. 181 Ibid. [79]. 182 Ibid. [45]. 183 Ibid. [61]. 184 Recall that ‘Khmer Rouge’ is a name first used as a descriptor of the group by Prince Sihanouk. 185 Duch Appeal Judgment [63], [74] (emphasis added).

The establishment of a court 67 referred to in the negotiation materials and in the travaux preparatoires, and they are therefore significant. As non-justiceable, they cannot be considered jurisdictional criteria, but as the CIJs are vested with independent authority, the SCC finds that the articulation of such policy falls within the discretionary decisionmaking authority held by the CIJs. While this split between jurisdiction and policy may be questioned as to their difference,186 what is of interest for my purposes is this explicit articulation by the SCC that investigatorial and prosecutorial decisions rely upon both law and policy, and that the policy involves possible contestations over the qualifications of ‘senior’ and ‘most’. This articulation is important to bear in mind with regard to the controversy over Cases 003 and 004. Shortly after the international CP requested the opening of the cases,187 Chea Leang, the national CP, explained in a press release that she does not consider the persons in question to fall under the ECCC personal jurisdiction.188 In Western comments on the cases, her reasoning, which is based on interpretations of the meaning of ‘senior’ and ‘most responsible’, as it should be according to the SCC, is almost completely ignored. Instead, her position has been taken as an indication that the Cambodian judicial office bearers are ‘puppets’189 of the Cambodian Prime Minister. To give a flavour of the way media and NGOs has reported on the cases, consider some of the texts by Human Rights Watch (HRW).190 In its reporting on Cases 003 and 004, HRW positions law against politics, and presents the latter exclusively as Cambodian governmental interference. Here, law and the judicial process are under constant threat from political interference by the Cambodian government. Take a 2015 report to the UN Human Rights Committee.191 The report introduces the ECCC with a reference to impunity and continues by then contrasting the ECCC’s ‘restricted jurisdiction’ against ‘the approximately two million Cambodians who died’. Without any contextualisation of the cases in

186 Im Chaem Closing Order Reasons [9]–[10]. 187 ECCC, Statement from the International Co-Prosecutor Regarding Case File 003 (9 May 2011), www.eccc.gov.kh/en/articles/statement-international-co-prosecutor-regarding-case-file-003; Ciorciari and Heindel, above n 19, 176. 188 Chea Leang, ‘Statement by the National Co-prosecutor Regarding Case File 003’ (press release, 10 May 2011), www.eccc.gov.kh/en/articles/statement-national-co-prosecutor-regarding-casefile-003. 189 For a discussion of how the epithet of ‘puppet’ accorded to the ECCC judicial office bearers echoes the dismissal of the People’s Revolutionary Tribunal as a show trial, see Hughes, above n 61. 190 But also see reports by Open Society Justice Initiative; for example, Heather Ryan, The Extraordinary Chambers in the Courts of Cambodia: Lessons in Human Rights Ignored by Cambodian Government (28 September 2016) International Justice Monitor, www. ijmonitor.org/2016/09/the-extraordinary-chambers-in-the-courts-in-cambodia-lessons-inhuman-rights-ignored-by-cambodian-government; Randle D. Falco, ‘Cases 003 and 004 at the Khmer Rouge Tribunal: The Definition of “Most Responsible” Individuals According to International Criminal Law’ (2014) 8(2) Genocide Studies and Prevention: An International Journal 45. 191 Human Rights Watch, Human Rights Watch Concerns and Recommendations on Cambodia Submitted to the UN Human Rights Committee in Advance of its Pre-Sessional Review of Cambodia (4 March 2015), www.hrw.org/news/2015/03/04/human-rights-watch-concernsand-recommendations-cambodia-submitted-un-human-rights.

68  The establishment of a court question – or consideration of the fact that jurisdiction is always ‘restricted’ – HRW concludes the report by urging the UN HRC to question the Cambodian government why it ‘has blocked additional prosecutions . . . and interfered with judicial decision-making’.192 The report makes no mention of possible reasoning by Chea Leang or any other Cambodian ECCC office bearer. This lack of reference to judicial reasoning is even more striking in a longer article by HRW entitled ‘Cambodia: Stop Blocking Justice for Khmer Rouge Crimes’193 where the HRW explains that the only thing stopping the cases is the Cambodian government. Whereas the actions of the international CP and CIJ receive considerable attention in the article, the national CP and CIJ are only mentioned in passing as having ‘rejected’ and ‘object[ed]’ to the cases. Law seems absent in their actions, as there can be no legal reasons for not investigating or prosecuting the persons. In the HRW texts, the ‘national’ politicises the judicial process, and thereby refutes the justice the two million Cambodians need. In contrast, the ‘international’ stands for the legal consideration, upholding or even bringing law. Law – and justice – comes from the international. This is also the way Kasper-Ansermet presented the issue in the controversy over his authority, discussed at the start of this chapter. Moreover, his selfrepresentation as an international actor extended to someone working on behalf of victims. In the press releases on his resignation, he repeatedly referred to victims. It was ‘out of respect for the law and the victims . . . [that he had] focused all his energy to continuing the judicial investigation of the highly contentious Cases 003 and 004.’194 Furthermore, it was ‘in view of the victims’ right to have investigations conducted in a proper manner’ that he had made the decision to resign.195 During his period at the ECCC, Kasper-Ansermet had seemingly placed victims first. When he began as CIJ, amongst his first actions was to order the admissibility of a civil party in Case 003, that is, recognising a person’s victim status and providing them with a range of participatory rights.196 Notably, this granted the civil party’s lawyers access to the case file long before lawyers of the accused were even assigned.197 In this way, Kasper-Ansermet’s claim of authority

192 Ibid. 193 Human Rights Watch, Cambodia: Stop Blocking Justice for Khmer Rouge Crimes – UN, Donors Should End Tribunal Support Unless Charges Pursued (22 March 2015), www.hrw.org/ news/2015/03/22/cambodia-stop-blocking-justice-khmer-rouge-crimes. 194 ‘Press Release by the Reserve International Co-Investigating Judge’ (press release, 4 May 2012), www.eccc.gov.kh/en/articles/press-release-reserve-international-co-investigating-judge. 195 ‘Press Release from the International Reserve Co-Investigating Judge’ (press release, 19 March 2012), www.eccc.gov.kh/en/articles/press-release-international-reserve-co-investigating-judge. 196 Prosecutors v Meas Muth (Order on the Reconsideration of The Admissibility of the Civil Party Application of Robert Hamill) (ECCC, Office of the Co-Investigating Judges, Case No 003, 24 February 2012). 197 Accused person Meas Muth was only notified of his right to representation that same month and chose lawyers in June 2013. Although lawyers were assigned on 18 December 2012, this was appealed by the co-prosecutors and it was not until 17 July 2014 that there was a decision on the appointment of defence lawyers for the accused. See procedural history and decision in Prosecutors v Meas Muth (Decision on [REDACTED]’s Appeal against the International Co-Investigating Judge’s Decision Rejecting the Appointment of Ang Udom and Michael Karnavas as his Co-Lawyers) (ECCC, Pre-Trial Chamber, Case No 003, 17 July 2014).

The establishment of a court 69 to act as CIJ was expressed in and through claims of victim representation. As someone authorised to represent the international, he was acting for the victims. With these claims that the only legal (and legitimate) result of the investigations would be to take the persons to trial, the decision regarding the status of Im Chaem is particularly noteworthy. In February 2017, the two CIJs You Bunleng and Michael Bohlander found that the ECCC has no personal jurisdiction over Im Chaem, one of the persons under investigation in Case 004.198 After years of speculation and reports on (Cambodian) political interference, the two judges presented in agreement that Im Chaem does not meet the criteria of being a Khmer Rouge official amongst those most responsible. According to the CIJs,199 what was of paramount importance in this finding was that there had been consensus during the negotiations that the personal jurisdiction of the Court would be strictly limited. Even though it was known that a very large number of persons had been killed, establishing a court with limited personal jurisdiction ‘was a conscious political choice during the negotiations balancing the call for integration of the remaining Khmer Rouge into society against the desire for some form of judicial closure for the horrendous suffering of the victims’.200 This consensus means that responsibility over a large number of killings cannot alone suffice for the purposes of personal jurisdiction.201 Furthermore, according to the CIJs, the consensus emphasises the significance of the principle in dubio pro reo (‘if in doubt, for the accused’). In other words, if there is any doubt, a decision must be in the benefit of the accused.202 On that basis, and on the basis of factual evidence, much of which is redacted and therefore cannot be commented on, the CIJs find that the ECCC does not have jurisdiction over Im Chaem as she does not meet the criteria of Khmer Rouge official amongst those most responsible. With regard to the other persons named in Cases 003 and 004, the investigations are ongoing. Personal jurisdiction is complex, and thereby necessarily raise a lot of questions. By comparing the articulations of who the Court has authority over in the judgments in Case 001 by the Trial Chamber and the SCC and the Im Chaem Closing Order by the CIJs, it becomes clear that there are disagreements that do not follow the international/nation divide. Importantly, they cannot be reduced to a claim that ‘politics’ is threatening law. Indeed, the way ‘politics’ tends in commentary to be reduced to allegations of Cambodian governmental interference occludes the much more complex interaction between legal and political considerations, interactions that far exceed what is possible to examine in this book. What can be said here though is that victims often figure at the heart of the contestations. As the CIJs in the Im Chaem Closing Order make clear,203 there is a fundamental tension between the fight against impunity, and the strictly limited

198 199 200 201 202 203

Im Chaem Closing Order Disposition. Im Chaem Closing Order Reasons. Ibid. [32]. Ibid. [18]–[19]. Ibid. [26]–[36]. Ibid. [16].

70  The establishment of a court personal jurisdiction stipulated in the founding documents of the ECCC. The promise of accountability thus stands in direct contrast to the legal principle to favour an accused when in doubt. Taken together, practices of jurisdiction reflect a constant struggle, one that is in part over the boundaries of the proceedings and what to include and exclude. Jurisdictional practices are necessarily bound, yet the way the boundaries are drawn reflects decisions that need to be scrutinised. At times, these boundaries reflect an urban bias; at other times, they exceptionalise something that requires further contextualisation; and at yet other times, the positioning of the boundary is fiercely contested and the contestations say as much about ICJ as about the inclusion/exclusion of the victim. The struggles at and over the boundaries reflect a larger struggle over the authority of representation.

Emblems By relating the symbols of the two subjects that established it, the ECCC emblem stands for both the authority and the contestation of the Court. The relation between the UN and the Cambodian government was during the establishment not always easy but it provided for the representation of some of those who suffered during DK as victims for the purpose of a criminal court. Through the instituting of a court and its jurisdictional practices, some become relevant for law as ‘victims’, while others who have suffered and who might elsewhere be considered victims remain outside. This practice of victiming is one involving contestations that go to the heart of the ICJ enterprise: What is relevant and not relevant for the purpose of establishing a chain of events? On what basis is the boundary of ir/relevant drawn? Who is relevant? Who appears ‘intelligible’? In commentary on the ECCC, such contestations tend to be depicted as a binary between the national and international, a binary that corresponds to one between politics and law, and where ‘politics’ is understood as (allegations of) Cambodian governmental interference. This positioning of politics as antithetical to law continues a long tradition in which politics is understood as that which corrupts and destroys law. Politics is taken to be that which turns a trial into a show trial, a foreign element that threatens the judicial proceedings.204 As Gerry Simpson points out, the accusation that politics leads to bad law is never far away in ICJ.205 Yet, such accusations give parsimonious accounts of the ways law and politics interact and interrelate.206 There are many examples of more complex interactions and interrelations of law and politics at and around the ECCC. Take the SCC finding that investigatorial and prosecutorial decisions necessarily

204 See Gerry Simpson, Law, War and Crime: War Crimes Trials and the Reinvention of International Law (Polity Press, 2007) 11; Martti Koskenniemi, ‘The Politics of International Law – 20 Years Later’ (2009) 20(1) European Journal of International Law 7. 205 Simpson, above n 204, 11. 206 In his chapter on law’s politics, Simpson maps a number of different relationships between the two.

The establishment of a court 71 involve both legal and political considerations, political here understood as either ‘policy’, or as contestation or a lack of coherence.207 Or take the usage of Phnom Penh as standing for, temporally and spatially, DK. Such a representation is based on political understanding of the capital as representative of the state. Also, these interactions affect the representation of victims. Within these interactions is what Martti Koskenniemi calls the structural bias of law, that at the end of the day, ‘the system de facto prefers some outcomes or distributive choices to other outcomes or choices.’208 In other words, some are more easily represented as victims than others. The way the contestations over authority at the ECCC are represented as following a split between national/international points to a tension within the larger internationalised criminal justice enterprise. In relation to the ECCC, it is consistently the ‘international’ which is said to uphold, even bring law, whereas the ‘national’, a conflation of state, state representatives and Cambodian-nationals judicial office bearers, are subject to politicking. In this way, the internationalisation of the institution points to the reiterative practice in which the international is said to ‘bring’ law and justice in the same way that the ‘international’ ‘intervenes’ to save local populations from despotic leaders,209 or, to paraphrase Spivak, the international is saving the national victims from the national perpetrators. Even if one accepts the settled subjectivity of ‘international’ versus ‘national’, this assumes, like Anne Orford points out, that the international ‘is absent from the scene of violence and suffering until it intervenes as a heroic saviour.’210 There is by now a large body of scholarship that critiques this narrative of presence/absence,211 and points to the way claims of ‘“absolutist”, “corrupt”, “hierarchical” and “violent” [local cultures] . . . mask[s] [the subject’s] own espousal and perpetuation of these very features.’212 As described in the first parts of this chapter, even if the international is reduced to the UN, international presence is far from new in Cambodia. Yet, in reporting by international NGOs such as HRW and in statements such as those by Kasper-Ansermet, ‘justice’ is something that is brought by the international. Closely linked to the representation of victims is one of the processes of justice.

207 Koskenniemi, above n 204, 8–9. 208 Martti Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (Cambridge, 2005) 606–7. 209 Anne Orford, Reading Humanitarian Intervention: Human Rights and the Use of Force in International Law (Cambridge University Press, 2003) chapter 3. 210 Ibid. 85. 211 See, for example, scholarship by Luis Eslava, Anne Orford and Sunhya Pahuja on international law, and by Rachel Hughes, Alex Jeffrey and Simon Springer on the international from a geography perspective. 212 Simon Springer, ‘Culture of Violence or Violent Orientalism? Neoliberalisation and Imagining the “Savage Other” in Post-Transitional Cambodia’ (2009) 34(3) Transactions of the Institute of British Geographers 305, 315.

3 The Khmer Rouge marriages and the victims of crime

Life, experience and representation As the book now moves from the making of a court to the articulation of crime, I turn to the question of what makes an event criminal. Before there is a trial at the institution of the Court, there is a representation of a crime. This is a re-presentation of a particular act or event into the particular language of international criminal law (ICL). It is a translation of something – a context, an event, perhaps suffering1 – into ‘crime’. This translation is also an act of classification.2 ICL, like domestic criminal law, functions as a system of classification with categories that order and structure. ‘Crimes’ are comprised of certain acts (‘underlying offences’ or ‘enumerated acts’), committed in particular contexts (chapeau elements) and based on ‘facts’ that the prosecution must prove beyond reasonable doubt.3 In this chapter, I am interested in the way the event of marriages regulated under and by the Khmer Rouge are translated and classified as crimes, and how victims of crime are represented through this process. Consider the violence of Democratic Kampuchea (DK) as represented by researchers on the period. At a time when violent death was rampant and fear pervasive, intimate relations were the target for restructuring. Part of the Khmer Rouge revolution – the group officially known as the Communist Party of Kampuchea (CPK) and locally simply as ‘Angkar’, the organisation4 – was a

1 Panu Minkkinen, ‘The Expressionless: Law, Ethics, and the Imagery of Suffering’ (2008) 19(1) Law and Critique 65. 2 On classifications in law, see Penny Crofts, ‘Monstrous Bodily Excess in The Exorcist as a Supplement to Law’s Accounts of Culpability’ (2015) 24(3) Griffith Law Review 372. 3 While the wording of the contextual element differs from court to court, in general, the crime of ‘genocide’ requires proof that the underlying acts were committed with an intent to destroy a national, ethnic, racial or religious group; a ‘crime against humanity’ requires proof that the underlying acts were committed as part of a widespread or systematic attack against a civilian population; and a ‘war crime’ requires proof of a serious violation of international humanitarian law, which applies in situations of armed conflict. 4 As noted in the previous chapter, there is some controversy over the exact relationship between the Khmer Rouge and the CPK, but throughout the book I use the names Khmer Rouge, CPK and Angkar interchangeably.

The Khmer Rouge marriages and the victims of crime 73 radical upheaval of previous orderings of life. Cities were evacuated and religion abolished. No longer was society to be structured into small family units,5 but into larger village cooperatives, where life and work were organised according to gender, age and work ability. Here, women, men and children often lived separately, and bonds and loyalty previously tied to the immediate family are said to have now been meant for Angkar.6 In accordance with the collectivisation of life and the dismantling of the strong bonds of family, marriage and its initiation became at some places the responsibility of Angkar and its village representatives. Rather than an affair between families, marriages were here initiated by the local representative. Sometimes soldiers were given a spouse of their choice as a reward for their service;7 at other times both spouses were chosen by Angkar. In the general atmosphere of fear, marriage proposals became at these places near impossible to refuse since this raised a risk of being sent for ‘re-education’.8 Whereas in traditional marriages, courtship had played a significant role in the construction of families and, by extension, of personal development into adulthood,9 couples who wed during this period often met for the first time at the ceremony itself. The ceremonies were brief and almost always conducted collectively, with the number of couples involved sometimes reaching 300 at any one time. After the wedding, there would be prearranged private sleeping huts for the newly-weds to spend a couple of nights together and consummate the marriage.10 After this was done, the spouses would return to their previous work and living units, and, as the case was for many couples during DK, some would only meet intermittently. Women who became pregnant during the period seldom had access to traditional birthing rites and many gave birth without the presence of their mother or mother-in-law, as

5 Patrick Heuveline and Bunnak Poch, ‘Do Marriages Forget Their Past? Marital Stability in PostKhmer Rouge Cambodia’ (2006) 43(1) Demography 99, 101. 6 Elizabeth Becker, When the War Was Over: The Voices of Cambodia’s Revolution and Its People (Simon and Schuster, 1986) 240; Trudy Jacobsen, Lost Goddesses: The Denial of Female Power in Cambodian History (NIAS Press, 2008) 223; Kalyanee Mam, ‘The Endurance of the Cambodian Family Under the Khmer Rouge Regime: An Oral History’ in Susan E. Cook (ed), Genocide in Cambodia and Rwanda: New Perspectives (Transaction Publishers, 2006) 119, 123–33. For a slightly different finding on policies directed towards women and mothers, see Peg LeVine, Love and Dread in Cambodia: Weddings, Births and Ritual Harm under the Khmer Rouge (National University of Singapore Press, 2010) 107. For description of traditional marriages and family organisation, see Jacobsen, 131–44. 7 Nakagawa Kasumi, Gender-Based Violence During the Khmer Rouge Regime: Stories of Survivors from the Democratic Kampuchea (1975–1979) (2nd ed, 2008) 15. First published as ‘Sexual Violence During the Khmer Rouge Regime: Stories of Survivors from the Democratic Kampuchea (1975–1979)’ (2006) 2 Asia Pacific Yearbook of International Humanitarian Law 46. 8 Neha Jain, ‘Forced Marriage as a Crime against Humanity: Problems of Definition and Prosecution’ (2008) 6(5) Journal of International Criminal Justice 1013, 1024. 9 LeVine, above n 6, 180. 10 Silke Studzinsky, ‘Neglected Crimes: The Challenge of Raising Sexual and Gender-Based Crimes before the Extraordinary Chambers in the Courts of Cambodia’ in Susanne Buckley-Zistel and Ruth Stanley (eds), Gender in Transitional Justice (Palgrave Macmillan, 2011) 92, 93.

74  The Khmer Rouge marriages and the victims of crime had been the custom.11 Many of the couples who wed through these weddings have remained together;12 others separated as soon as the regime fell. How should these marriages be represented? They constitute an event that has been analysed within various frameworks: they have been the focus of demographic studies on family structures;13 they have been described as examples of gender-based violence;14 they have been represented through dance and artistic performances;15 and they have been approached as forms of ‘ritualcide’, a ‘cosmic betrayal’ of the Cambodian population.16 While some call them red weddings,17 they are generally described as instances of forced marriage.18 The epitaph of ‘forced’ is in common use, yet some argue that it does not capture the distinct nature of the marriages, especially in light of the traditionally arranged marriages.19 Without entering the debate on whether or not the marriages were ‘forced’ but still wanting to capture their distinctiveness, I refer to them as the Khmer Rouge marriages. Marriages before the DK period were rarely so-called love marriages or initiated by the future spouses, but arranged by families and match-makers.20 What emerges as the distinctive character of the event of the Khmer Rouge marriages is thus not so much that they were not ‘love marriages’ or initiated by the future spouses, but that they were instigated by a regime, that

11 LeVine, above n 6, 88: ‘Of those giving birth to a live or dead infant, 35 per cent (23 out of 64) reported access to traditional birth methods wherein a traditional birth attendant was present with either a mother or mother-in-law. (This shows a grave breakdown of tradition during Democratic Kampuchea; customarily, 100 per cent of births are expected to be attended in Cambodia.)’ (emphasis in original). 12 See especially Heuveline and Poch, above n 5, 118 who, on the basis of a quantitative study, find a ‘striking . . . lack of a notable difference’ in marriage stability between the Khmer Rouge and post-Khmer Rouge weddings: 118. See also LeVine, above n 6, 87 who interviewed 192 persons who were wed during this period. One hundred and fifty-three or 80 per cent of these are still with their assigned partner. While her sample, assembled through snowballing, cannot be generalised for the larger population, it does suggest that many couples have stayed together. 13 Heuveline and Poch, above n 5. 14 Kasumi, above n 7; ‘Sorrows and Struggles: Women’s Experience of Forced Marriage during the Khmer Rouge Regime’ (Exhibition at Tuol Sleng Genocide Museum, opened March 2016). 15 The performance Phka Sla was developed at the Khmer Arts Academy as a reparation at the Extraordinary Chambers in the Courts of Cambodia. See Moira Warburton, ‘The Power of Dance: Recounting Forced Marriage during the Khmer Rouge period’ on ECCC Blog (13 February 2017), www.eccc.gov.kh/en/blog/2017/02/13/power-dance-recounting-forced-marriage-duringkhmer-rouge-period. 16 LeVine, above n 6, 183. 17 See, for example, the documentary Red Wedding (directed by Lida Chan and Guillaume Suon, Bophana Production and Tipasa Production, 2012). 18 See, for example, Becker, above n 6, 267; Jain, above n 8; Kasumi, above n 7, 14–15; Mam, above n 6; Kalyanee Mam, ‘An Oral History of Family Life under the Khmer Rouge’ (Working Paper No GS 10, Yale University, Yale Center for International and Area Studies, 1999). As will later be described, the ECCC also describes them as forced marriages. 19 See, for example, LeVine, above n 6, an anthropologist who spent a decade interviewing people who wed during this period, and who vehemently dismisses the epitaph ‘forced’. She describes them instead as ‘conscripted,’ in that ‘the Khmer Rouge conscripted (drafted) young people into matrimony’, something that she sees gives a language for cases of ‘conscientious objectors’. LeVine claims that the people she met ‘used the word “forced” to describe work conditions, but no one used the same word to describe their marriage’: see especially 26–9, 175. 20 Jacobsen, above n 6, 223.

The Khmer Rouge marriages and the victims of crime 75 they disregarded the role of family and match-makers in the pairing, that to refuse the marriage had potentially fatal consequences, and that they played a part in the larger reordering of society by furthering a collectivisation. To this event of the Khmer Rouge marriages, the Extraordinary Chambers in the Courts of Cambodia (ECCC) has been called upon to respond through ICL. ICL offers a promise of representation by which complex events and contexts are given meaning by being represented in the language of crime. For an act to be represented as an international crime, it must meet the particular elements and definitions of both that particular crime and its underlying offence. But while there is a promise in the translation, acts of translation also carry legacies of past translations. That is, the representation of something as crime is a reiterative practice that hold promises and possibilities, but also structural biases.21 The question then is how unprecedented acts, acts supposedly unique or sui generis, are to be translated. How is an unprecedented event such as the Khmer Rouge marriages represented through ICL? What made the Khmer Rouge marriages potentially criminal? At the ECCC, much of this translation of events during DK into alleged crimes is done through the Closing Order of a case.22 This document, written by the two co-investigating judges (CIJs), is produced at the end of an investigation, and either dismisses a case or charges a person and confirms that the case will proceed to trial. At the ECCC, investigations are initiated by the co-prosecutors (CPs), but conducted primarily by independent and impartial CIJs, who present their findings in the written Closing Order. If the case proceeds to trial, the Closing Order identifies an accused person(s) and provides a ‘description of the material facts and their [legal] characterisation . . . including the relevant criminal provisions and the nature of the criminal responsibility.’23 Thus, with

21 On structural bias in international law, see Martti Koskenniemi, ‘The Politics of International Law – 20 Years Later’ (2009) 20(1) European Journal of International Law 7. For feminist work on legacies and structures, see, for example, Doris Buss, ‘Performing Legal Order: Some Feminist Thoughts on International Criminal Law’ (2011) 11 International Criminal Law Review 409; Ratna Kapur, ‘The Tragedy of Victimization Rhetoric: Resurrecting the “Native” Subject in International/Post-Colonial Feminist Legal Politics’ (2002) 15 Harvard Human Rights Journal 1; Nicola Lacey, Unspeakable Subjects: Feminist Essays in Legal and Social Theory (Hart, 1998); Vasuki Nesiah, ‘Missionary Zeal for a Secular Mission: Bringing Gender to Transitional Justice and Redemption to Feminism’ in Sari Kouvo and Zoe Pearson (eds), Feminist Perspectives on Contemporary International Law: Between Resistance and Compliance? (Hart, 2011) 137; Fionnuala Ni Aolain, ‘Sex-based Violence and the Holocaust – A Reevaluation of Harms and Rights in International Law’ (2000) 12(1) Yale Journal of Law & Feminism 43; Dianne Otto, ‘Lost in Translation: Re-scripting the Sexed Subjects of International Human Rights Law’ in Anne Orford (ed), International Law and Its Others (Cambridge University Press, 2006) 318. 22 See ECCC, Office of the Co-Investigating Judges, www.eccc.gov.kh/en/organs/office-coinvestigating-judges. Note that the co-investigating judges cannot investigate new facts, but are bound by the co-prosecutors’ submissions. Once the CIJs have announced the end of investigation, all parties (the co-prosecutors, the defence and the civil parties) have an opportunity to file further investigative requests within a limited period. These requests are not binding on the CIJs. 23 In accordance with the Internal Rules, the Closing Order ‘sets out the identity of the Accused, a description of the material facts and their legal characterisation by the Co-Investigating Judges, including the relevant criminal provisions and the nature of the criminal responsibility’. ECCC, Internal Rules (Rev 9) (adopted 16 January 2015) r 67(2).

76  The Khmer Rouge marriages and the victims of crime detailed descriptions of alleged facts and their ‘legal characterisation’ – for Case 002 taking up an impressive 700 pages – the Closing Order determines the scope of the case, the possibilities and limitations for the legal translation. Since the Closing Order is issued before the trial and the judgment, it does not provide an authoritative legal interpretation or statement of facts in the way that a judgment does. However, written by judges, it imposes judicial oversight of the process of translation into crime. Furthermore, the description and characterisation provided through the Closing Order are exclusive to the extent that the Trial Chambers is seised only by that which is therein.24 As the first instance in which lived experience must be put in legal language and as setting the scope of the trial, the Closing Order both opens for and forecloses judicial accountability. It acts as gatekeeper, providing both order and a promise, indicating the possibilities and limits in ICL. When the Closing Order calls an accused person, it also calls a victim.25 This is a particular victim who has suffered from the crime allegedly committed by the defendant. In this way, the Closing Order governs the formation of victims: it identifies and defines persons as ‘victims’, who become intelligible in and through legal language. For the person who has suffered from an event, the Closing Order provides a promise of representation, the representation as ‘crime victim’. As international crimes consist of both underlying offences and the larger crime with its chapeau elements, the representation of crime victim relies upon a successful translation (and finding) on both levels. The crime that the Khmer Rouge marriages is translated into in the Closing Order for Case 002 against the surviving leaders of the Khmer Rouge26 is that of ‘crimes against humanity’. More specifically, the marriages are translated into three different forms – counts – of crimes against humanity: ‘rape,’27 ‘other inhumane acts’ in the form of sexual violence (within the Khmer Rouge marriages),28 and ‘other inhumane acts’ in the form of regulation of marriage.29 Yet, despite rape being enumerated in the ECCC Law’s provision on crimes against humanity,30 the defence successfully challenged this charge on the grounds that

24 ECCC, Internal Rules (Rev 9) (adopted 16 January 2015) r 79(1). 25 At the ECCC, this is a direct call. As I will discuss in the next chapter, individuals may apply to become civil parties, formal ‘victims’ who may participate in the case and trial. 26 Noun Chea, Khieu Samphan, Ieng Sary and Ieng Thirith. Ieng Thirith was early on found unfit for trial, and on 14 March 2013 Ieng Sary died. Facing trial in relation to the charges are thus Nuon Chea and Khieu Samphan. 27 Prosecutors v Nuon Chea, Ieng Sary, Khieu Samphan and Ieng Thirith (Closing Order) (ECCC, Trial Chamber, Case No 002, 15 September 2010) [1430]–[1432] (‘002 Closing Order’). 28 Ibid. [1433]. 29 Ibid. [1442]–[1447]. 30 Law on the Establishment of Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed During the Period of Democratic Kampuchea, as Amended by the Law to Amend the 2001 Law on the Establishment of the Extraordinary Chambers (NS/RKM/1004/006) (unofficial translation by the Council of Jurists and the Secretariat of the Task Force, revised 26 August 2007) art 5 (‘ECCC Law’).

The Khmer Rouge marriages and the victims of crime 77 at the relevant time (1975–1979) of their (alleged) commission, rape was not recognised as constitutive of crimes against humanity under international law.31 Consequently, the Pre-Trial Chamber excluded the charge of rape as a crime against humanity.32 Proceeding to trial33 were thus two counts of other inhumane acts of crimes against humanity, where one focuses on sexual violence (in the context of forced marriage) and the other forced marriage per se.34 Notably, the charge of other inhumane acts in the form of sexual violence was based on the same facts as those that had previously been characterised as rape.35 For those who experienced the Khmer Rouge marriages, a possible translation into the subject ‘crime victim’ thus occurs on several levels; one relating to crimes against humanity; and another relating to rape, sexual violence and other inhumane acts. At the ECCC, acts of crimes against humanity are understood to have been ‘committed as part of a widespread or systematic attack’ that was ‘directed against any civilian population’ on certain specified grounds.36 These so-called chapeau elements specify the necessary context for an act that constitutes the crime. Yet, while this provides a legal understanding of ‘crimes against humanity’, the term has a life beyond law. In social discourse, ‘crimes against humanity’ appears often in relation to certain acts and atrocities as invocation of their ‘inhumanity’, centring upon notions of humanity, humankind, humanness. Similarly, while rape and sexual violence are defined in law at the ECCC (more on which later), the acts also have social meanings and understandings. These social understandings of the crimes and the acts figure alongside and at times in tension with the legal definitions, leaving traces in particular when they challenge the possibilities and limits of the law. In this chapter, I focus on the manner in which ICL represents an event such as the Khmer Rouge marriages through translation and classification. What in the marriages emerges as criminal and how is this characterised and structured in accordance with the chapeau elements and underlying offences? And

31 Ieng Thirith Defence Appeal from the Closing Order (Appeal) (ECCC, Pre-Trial Chamber, Case No 002, 18 October 2010) [61]; Ieng Sary’s Appeal Against the Closing Order (Appeal) (ECCC, Pre-Trial Chamber, Case No 002, 25 October 2010) [218]; Decision on Appeals by Nuon Chea and Ieng Thirith against the Closing Order (Decision) (ECCC, Pre-Trial Chamber, Case No 002, 15 February 2011) [154] (‘002 Decision on appeals’). 32 002 Decision on appeals [154]. 33 The counts are part of the second trial of Case No 002 – Case No 002/02 – in which the trial hearings began on 17 October 2014 and were completed in June 2017. For updates on the developments, see the ECCC website, www.eccc.gov.kh/en. 34 002 Decision on appeals [166]. 35 002 Closing Order [1433]; 002 Decision on appeals [154]. 36 ECCC Law art 5; for discussion see below. On crimes against humanity generally in ICL, see, for example, M. Cherif Bassiouni, Crimes Against Humanity: Historical Evolution and Contemporary Application (Cambridge University Press, 2011); Robert Cryer et  al., An Introduction to International Criminal Law and Procedure (Cambridge University Press, 2010) chapter 11; David Luban, ‘A Theory of Crimes Against Humanity’ (2004) 29(1) Yale Journal of International Law 85; Larry May, Crimes Against Humanity: A Normative Account (Cambridge University Press, 2005).

78  The Khmer Rouge marriages and the victims of crime how does the victim move between these different translations and the social understandings of the crimes? While issues of translation and classification hold merit in and of themselves, for the figure of the victim, they go to the heart of its being. The particular way that an event is translated and classified establishes practices through which a subject is represented as a ‘crime victim’. The chapter proceeds by way of a close reading of the representation of the victim of the Khmer Rouge marriages in the charge of the ‘regulation of marriage’ in the Closing Order for Case 002, paying attention to the way the marriages are translated into crime and classified as such. In the first part, focusing on the crime category of crimes against humanity, I examine how the marriages victimise a collective, how the Closing Order conceives of this collective and how this relates to different understandings of ‘humanity’. The second part of the chapter is concerned with the understanding of the underlying offences, namely rape, sexual violence and other inhumane acts. Emerging from this reading of the various translations and classifications is a shift in the characteristics of the victim figure. And so, in light of the way the Closing Order represents events and subjects through translation and classification and in light of a possible discrepancy between legal and social understandings of a crime, I ask, how does a victim of crime appear in relation to the Khmer Rouge marriages?

Translation into crime: becoming crimes against humanity With the Closing Order, the event of the Khmer Rouge marriages is translated into the law of the ECCC. With that, a victim of crime appears. The movement into international criminal law is a mode of translation, a translation from other discourse(s) to the particular law and language of ICL. In a sense, translation is what lies at the heart of any legal activity. It is at play in the interpretation of texts and it is at play in the interactions between lawyers and their clients. This double activity, done in the face of another, makes translation ‘an art of recognition and response, both to another person and to another language.’37 It is at play in the representation of an event as crime. In translating the Khmer Rouge marriages into crime, the Closing Order provides a certain meaning to the event, registering it in the symbolic order. Even seemingly meaningless suffering comes to ‘serve[] a purpose in the rectification of wrongs by assigning responsibility.’38 In translating an event into crime, the Closing Order constitutes a world of meaning and action: it creates a set of actors and speakers and offers them possibilities for meaningful speech and action that would

37 James Boyd White, Justice as Translation: An Essay in Cultural and Legal Criticism (University of Chicago Press, 1990) 230. 38 See Minkkinen, above n 1, 70.

The Khmer Rouge marriages and the victims of crime 79 not otherwise exist; in so doing it establishes and maintains a community, defined by its practices of language.39 In this sense, the Closing Order translation of the Khmer Rouge marriage into the idiom of ICL is an act of constitution. The marriages are represented in a language that also establishes a ‘community’; ‘actors’ are created and relationships formed. By translating the marriages into crime, the Closing Order provides for the constitution of a community in which those who were responsible for the event of the marriages appear as perpetrators and those who experienced them as crime victims. This is at the foundation of the promise of law, the promise of representation. Part of this translation is the ordering into legal categories. In the Closing Order, the marriages appear as ‘facts’ in the factual accounts and then move into the legal findings, where they are classified, appearing either in relation to the chapeau (contextual) elements of the crime category or to the underlying offence. As to the facts, the Closing Order presents what it first calls the ‘regulation of marriage’: One of the five policies . . . to implement and defend the CPK socialist revolution was through the regulation of marriage by whatever means necessary. The CPK forced couples to marry as it took control progressively over parts of Cambodian territory before 1975 and continued to do so until at least 6 January 1979.40 This factual description of the Khmer Rouge marriages forms the basis for the later presentation of the marriages as crimes against humanity. In the legal findings, the Closing Order asserts that the policy implemented by the Democratic Kampuchea authorities between 17 April 1975 and 7 [sic] January 1979 consisted of a widespread and systematic attack against the entire civilian population of Cambodia, principally on political grounds but also, in some contexts, on national, ethnic, racial or religious grounds.41

39 White, above n 37, xiv. Of course, White is not writing specifically about the ECCC or even about criminal law, but more generally about law. 40 002 Closing Order [216]. Typo corrected – additional ‘was’ now omitted. On the policies, see below. The other four polices are the ‘repeated movements of the population from towns and cities to rural areas, as well as from one rural area to another; establishment and operation of cooperatives and worksites; re-education of “bad elements” and “enemies”, both inside and outside the Party ranks; the targeting of specific groups, in particular the Cham, Vietnamese, Buddhists and former officials of the Khmer Republic, including both civil servants and former military personnel and their families’: [1353]. 41 Ibid. [1350]. Note the date of 7 January, whereas the ECCC Law and Agreement stipulate 6 January.

80  The Khmer Rouge marriages and the victims of crime Thus, the Closing Order provides for the marriages to shift: from being an event in a social context to the Closing Order; in the Closing Order from ‘factual’ accounts to legal; and in legal accounts between crimes and underlying offences. With this shift of the marriages, the victim follows: translated into law, classified in relation to facts and moving to and between legal categories. In each iteration, the victim appears with some similarity and some difference. One might say the figurations of the victim change, move or perhaps even slip. Slippages: individuality and collectivity Within the Closing Order, the figure of the victim of the Khmer Rouge marriages moves across the categories, each category being an iteration that re-presents its victim; each providing for the representation of a particular victim. In the factual findings of the Closing Order, the marriages are presented and organised alongside other facts such as the treatment of targeted groups, with their own heading as ‘the regulation of marriage’.42 There, a victim begins to shape. It is stated that the marriages targeted ‘single people in their twenties or early thirties’,43 who were only allowed to ‘marry and have sexual relations in accordance with the CPK policy.’44 The effects of the marriages were not limited to those couples who wed. Instead, the marriages were part of an attempt to ‘replace the role of parents and to enable the mothers to go to work.’45 Later in the factual account, it is specified that ‘[b]oth men and women were forcibly married under the CPK regime.’46 Both men and women were affected; both men and women figure as victims. When these marriages move from the factual accounts to the legal findings, something happens. By characterising the marriages as crimes against humanity, the Closing Order represents the victims in a relation to ‘humanity’. For Walter Benjamin, at stake in translation is the transmission of not only information, something he considered ‘inessential content’, but rather the task of transmitting the ‘essential quality’ of a work.47 So what is the essence in these marriages that is translated into crimes against humanity, and how does this essence carry the victim? To understand this, I take a detour to different understandings of the crime. The ECCC Law holds a particular definition of crimes against humanity that is meant to reflect the legal understanding of the crimes when they were committed in the 1970s. The phrase ‘crimes against civilization and humanity’ first appeared in 1915 in relation to the massacre of Armenians by Turkey, and was then picked up in the drafting of the Nuremberg Charter in 1945.48 There, it appeared as part of

42 43 44 45 46 47

Ibid. Part One: VII-E. Ibid. [220]. Ibid. [217]. Ibid. Ibid. [842] (still under Factual Findings, but under the subheading Factual Findings of Crime). Walter Benjamin ‘The Task of the Translator, An Introduction to the Translation of Baudelaire’s Tableaux Parisiens’ in Lawrence Venuti (ed), The Translation Studies Reader (Harry Zohn trans, Routledge, 2000) 15, 16 [trans of: Die Aufgabe der Ubersetzung (first published 1923)]. 8 Luban, above n 36, 86. 4

The Khmer Rouge marriages and the victims of crime 81 an attempt to broaden the legal understanding of who could be a victim during atrocity and war, and was introduced to legally capture the atrocities committed by the Nazi regime against its own population. These people would otherwise not have been legally conceived of as victims, since at that time it was widely understood that victims of ‘war crimes’ were necessarily nationals of the ‘enemy’ population – the other parties to the armed conflict.49 And so, at the Nuremberg International Military Tribunal (IMT), ‘crimes against humanity’ were considered to be constituted by a number of acts, committed ‘against any civilian population, before or during the war’, or by ‘persecution on political racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal’.50 At the Nuremberg IMT, crimes against humanity also incorporated what is today known as the distinct crime of genocide, which, in contrast to crimes against humanity, requires the special intent to destroy a group.51 The close connection between the two crimes remains and they share some characteristics, such as the way victims are ‘attacked for being (rather than for doing).’52 They also continue to be conflated, particularly in social discourse. The killings and destruction attributed to the Khmer Rouge is a good example of this, as it is often referred to as a genocide53 despite the fact that the ECCC characterises most of the crimes committed as either war crimes or crimes against humanity, and only acts committed against the Cham and Vietnamese minorities as alleged genocides.54 Much of the academic discussion about crimes against humanity focuses on whether ‘humanity’ should be understood as ‘human-kind’ or as (many) ‘humanbeings’,55 and how human-kind/human-beings are affected by the commission of the crime. Emerging from these debates is an understanding that the essence, to go back to Benjamin’s terminology, of crimes against humanity has to do with humanity. In this vein, Cassese suggests that the category of crimes against humanity encompasses acts running contrary to those basic values that are, or should be, considered inherent in any human being (in the notion, humanity did not mean ‘mankind’ or ‘human race’ but ‘the quality’ or concept of human being).56

49 Cryer et al., above n 36, 231. 50 Charter of the International Military Tribunal – Annex to the Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis (‘London Agreement’), signed 8 August 1945, 82 UNTS 280 (entered into force 8 August 1945) art 69(c). 51 Convention on the Prevention and Punishment of the Crime of Genocide, opened for signature 9 December 1948, 78 UNTS 277 (entered into force 12 January 1951) art 2. 52 Samantha Power, A Problem From Hell: America and the Age of Genocide (Basic Books, 2002) 36 on genocide, applied to crimes against humanity by Luban, above n 36, 105. 53 Illustrative is the Wikipedia page on the Khmer Rouge atrocities, which is called ‘Cambodian Genocide’: Cambodian genocide, Wikipedia, http://en.wikipedia.org/wiki/Cambodian_genocide. 54 See 002 Closing Order [1335]; part of ongoing Case No 002/02. 55 See, for example, Luban, above n 36; Christopher Macleod, ‘Towards a Philosophical Account of Crimes Against Humanity’ (2010) 21(2) European Journal of International Law 281. See also Britta van Beers, Luigi Corrias and Wouter Werner (eds), Humanity across International Law and Biolaw (Cambridge University Press, 2014). 56 Antonio Cassese, International Law (Oxford University Press, first published 2001, 2005 ed) 440.

82  The Khmer Rouge marriages and the victims of crime For Cassese then, there is a certain quality in humanity, ‘inherent’ in us all, which is violated by the crime. What is noteworthy is the assumption that crimes against humanity, by ‘running contrary to’ humanity, somehow affect the entirety of humanity – us all. The work by Hannah Arendt plays a significant role in our understanding of the concept ‘humanity’. She argued that the suffering inflicted during the Holocaust was caused by crimes committed against ‘humanity’ and ‘perpetrated upon the body of the Jewish people.’57 During the Nuremberg IMT, French prosecutor François de Menthon argued in his opening speech that what was at stake were crimes committed against not only individuals but also the ‘human status,’58 something Arendt picked up. She argued that the atrocities committed against Jewish people during the Holocaust were not simply unprecedented in ‘degree of seriousness’, but radically different in essence.59 In this sense, Arendt rejected the presentation of the atrocities as similar in kind (quality) to previous anti-Semitic crimes of discrimination and persecution but unprecedented in scope (quantity). Instead, she argued that what had occurred was ‘an attack upon diversity as such, that is, upon a characteristic of the “human status” without which the very words “mankind” or “humanity” would be devoid of meaning.’60 In making this claim, she identified as the central characteristic of the crime, the essence to be translated, as a quality that is closely tied to the concepts of mankind and humanity. And with this assertion about the distinctiveness of the crime and how it affected the ‘human status’, Arendt presented a definition of crimes against humanity that centres on damage61 done to the human collective. Not all agree on this characterisation of crimes against humanity as primarily against the status of humanity or that this has to do with diversity. David Luban argues that the phrase ‘crimes against humanity’ points to ‘the enormity of these offenses’ in terms of both quantity and quality. As he puts it, the phrase suggests crimes that ‘aggrieve not only the victims and their communities, but all human beings, regardless of their community.’ Furthermore, ‘these offenses cut deep, violating the core humanity that we all share.’62 Luban thus sees a double meaning in the word ‘humanity’: affected by crimes against humanity is an ‘aggregation of all human beings – humankind’ because the crime violates a core humanity, ‘the quality of being human – humanness’.63 In this way, Arendt and Luban share an understanding that crimes against humanity affect a collective named ‘humanity’, although they differ somewhat in how to understand this collective. In representing an event as this particular crime, the victim is not only the

57 Hannah Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil (Penguin Books, first published 1963, 2006 ed) 269. Of course, she was commenting on a crime that is today split into genocide and crimes against humanity, but both are considered to target humanity. 58 Ibid. 157. 59 Ibid. 267. 60 Ibid. 268–9. 61 See also Macleod, above n 55. 62 Luban, above n 36, 86. 63 Ibid. 86–7.

The Khmer Rouge marriages and the victims of crime 83 individual but also a collective. There is a shift, one that is carried by an essence in the quality of the act (for Arendt) or a specific combination of an aggregation and quality (for Luban). There is more to say about how to understand ‘humanity’, but before going into further depth, I turn to the ECCC: How does the victim in the Closing Order relate to ‘humanity’ in ‘crimes against humanity’? How do the marriages become crimes against humanity? What in the marriages are identified as their criminal essence? Let me begin with the ECCC definition of crimes against humanity. According to the ECCC Law, these crimes ‘have no statute of limitations’ (meaning there is no ‘expiration date’ for their prosecution) and are defined as: any acts committed as part of a widespread or systematic attack directed against any civilian population, on national, political, ethnical, racial or religious grounds, such as murder; extermination; enslavement; deportation; imprisonment; torture; rape; persecution on political, racial, and religious grounds; [and] other inhumane acts.64 The contextual elements thus specify that underlying offence must be committed as part of a ‘widespread or systematic attack’ which is directed ‘against any civilian population’ on certain discriminatory grounds. Apart from the requirement of discriminatory grounds, which is only also found in the statute of the ad hoc tribunal for Rwanda,65 this definition resembles the legal definition of crimes against humanity applicable in other international criminal courts and tribunals (ICTs).66 What is notable about this definition is the way it, just like other legal definitions of the crime, does not elaborate on the concept of ‘humanity’ that figures in its name. Instead, the emphasis lies on ‘widespread’ and ‘systematic’, and ‘against any civilian population’. It is because the Khmer Rouge marriages were just that, that they are alleged to have been criminal.67 The centrality of ‘widespread’ and ‘systematic’ is not unusual amongst the contemporary ICTs. Yet, while central, the criteria are also given slightly varying meanings. For the International Criminal Tribunal for the Former Yugoslavia (ICTY), the criterion of ‘widespread’ requires a certain scale of victimisation and number of victims,68 whereas the International Criminal Court (ICC) requires a ‘multiple commission

64 ECCC Law art 5; for discussion see below. 65 SC Res 955, UN SCOR, 49th sess, 3453rd mtg, UN Doc S/RES/955 (8 November 1994) annex art 3 (‘Statute of the International Tribunal for Rwanda’). 66 See, for example, SC Res 827, UN SCOR, 48th sess, 3217th mtg, UN Doc S/RES/827 (25 May 1993), as amended by SC Res 1877, UN SCOR, 64th sess, 6155th mtg, UN Doc S/RES/1877 (7 July 2009) art 6 (‘Statute for International Criminal Tribunal for the Former Yugoslavia’); Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 90 (entered into force 1 July 2002) art 7 (‘Rome Statute’). 67 As noted, there are other criteria in the definition of crimes against humanity as well, but as these are less relevant for the slippage between individual and collective, I do not elaborate on them here. 68 ICTY Judgment against Blakic in Margaret deGuzman, ‘Crimes Against Humanity’ in Bartram S. Brown (ed), Research Handbook on International Criminal Law (Edward Elgar, 2011) 71.

84  The Khmer Rouge marriages and the victims of crime of acts’.69 At the ICTY, an explicit policy is not necessary and the element of systematic can be seen in the ‘organised nature of the acts of violence and the improbability of their random occurrence.’70 In contrast, for an attack to constitute a crime against humanity for the ICC, it can be either widespread or systematic, but either way it needs to be committed pursuant to a policy.71 For the Closing Order, it is of significance that ‘the attack against the civilian population was manifestly widespread and systematic . . . [since] one of these criteria alone is legally sufficient to elevate the acts to the level of crimes against humanity.’72 But what does the Closing Order consider as supporting the characterisation of the attack as widespread and systematic? The ECCC Law does not elaborate on either ‘systematic’ or ‘widespread’, but in the Closing Order, what appears key in the presentation of crimes against humanity and tying it to the defendants in Case 002, is the existence of a policy. For the Closing Order, what links the marriages and the category of crimes against humanity, making them a ‘widespread and systematic attack’, is the fact that the marriages were part of a larger policy.73 This larger policy was an attack [that] consisted of the imposition of dictatorial control over the entire population of Cambodia, in line with the CPK’s objective to bring about rapid socialist revolution in Cambodia and to eliminate both internal and external enemies.74 The Closing Order asserts that to achieve their ‘revolutionary project’, the CPK ‘employed five main categories of means’.75 Although these five categories are initially presented as ‘means’, they are later interchangeably referred to as independent ‘policies’. These were the repeated movements of the population between urban and rural areas; the targeting of specific groups, in particular the Cham, Vietnamese, Buddhists and former officials of the Khmer Republic; the organisation of worksites and cooperatives; security centres and execution sites; and the regulation of marriage. In the massive case against the former leaders, with its extensive coverage over time and place, these five policies provide a certain structure to what would otherwise be an overwhelming amount of suffering and criminal episodes.76 What is important to note for my purposes here is the way policy is identified as the criminal essence in the marriages; it is what ties the marriages to the elements of the crime and it is what binds the marriages to the defendants.

69 70 71 72 73 74 75 76

Rome Statute art 7(2)(a). Kunarac judgment quoted in deGuzman, above n 68, 72. deGuzman, above n 68, 70; Rome Statute art 7(2)(a). 002 Closing Order [1361]. Ibid. [1350]. Ibid. [1353]. Ibid. When the case reached trial, these policies similarly provided structure and ordering to the proceedings.

The Khmer Rouge marriages and the victims of crime 85 In describing the criminality in/of these policies, the Closing Order points out that it is not the CPK ‘ideological project’ as such that constitutes a crime. Rather, it was the way this larger project was ‘adopted’ that made it a crime against humanity.77 In other words, it is not the ‘project’ but its particular implementation. This goes for all five policies. There is an important shift here. In the move from larger project to specific policies, ‘policy’ has at this point in the Closing Order come to incorporate an element of implementation. It should be noted that the existence of a policy on marriage does not necessarily mean that the marriages become crimes against humanity. Marriage is always regulated through domestic laws and customs. Thus, there is something else in the Khmer Rouge marriages that made them international crimes. According to the Closing Order, this ‘something’ is both a circumstance and a consequence: the marriages were forced, imposed, regulated through violent coercion, and caused serious harm.78 However, the Closing Order does not derive the representation of the marriages as ‘forced’ from CPK official statements. That Pol Pot stated that ‘young men and young women [were to] build up families on a voluntary basis’79 does not, according to the Closing Order, accurately depict the CPK policy. Instead, the Closing Order turns to the many witnesses, some of whom had been subjected to the marriages and others who were former Khmer Rouge officials, who describe the marriages as forced. Thus, rather than Pol Pot’s statements, it is the statements by witnesses that are taken in the Closing Order as depictions of the policy.80 Disregarding Pol Pot’s claims, the Closing Order concludes that ‘in practice, people were not able to assert their opposition for fear of violence or death.’81 Here, the Closing Order looks at the way marriages were conducted and despite official statements on their voluntary nature, the Closing Order concludes that they were forced. What made the marriages crimes against humanity was the existence of a particular policy that violently coerced couples to marry. What does this emphasis on policy say about the figure of the victim and how it relates to the concept of ‘humanity’? Recall Luban’s presentation of the crime, in which he described it as affecting many individuals (quantity) because of its character (quality). Linking these two meanings is, according to Luban, the fact that humans are political beings. Crimes against humanity ‘assault one particular aspect of human being, namely our character as political animals.’82

77 78 79 80

Ibid. [1357]. Ibid. [216]–[217]. Quoted in ibid. [219] (emphasis altered). Ibid. [219]. Another policy on population growth, widely disseminated, supports, according to the Closing Order, the existence of a marriage policy based on force: [218]. This reliance upon witness testimony to contrast the public statements can be compared to the way the CIJs saw no responsibility for the widespread occurrence of rape in security centres and elsewhere. Here, as noted in Chapter 2, the CIJs relied upon provisions in two Moral Codes in preference over witness testimonies. 81 Ibid. [219]. 2 Luban, above n 36, 90. 8

86  The Khmer Rouge marriages and the victims of crime Thus, targeted in crimes against humanity is not a form of rationality83 or even ‘human diversity’, as Arendt claimed.84 Rather, humanity is characterised by the fact that humans both hold individuality and live in groups. Humans are both ‘self-aware individuals with interests of our own’ and ‘need to live in groups’.85 This makes us political animals and this is what crimes against humanity target. In his words, crimes against humanity are ‘politics gone cancerous.’86 This understanding of the crime, as targeting the political, links the social readings of the crime as something affecting ‘humanity’ with the legal elements of widespread and systematic. Amongst the features that characterise the crime87 is the way they are ‘committed by politically organised groups acting under colour of policy.’88 Indeed, for Luban, a significant factor in what characterises crimes against humanity and distinguishes them from both heinous domestic crimes and genocide is that they are ‘crimes committed through political organisation’; what they hold is a feature of ‘organisational responsibility.’89 In Luban’s theory, the victim of crimes against humanity is the collective of humanity,90 understood as characterised by the political. The emphasis on policy in the Closing Order seems to advance an understanding of crimes against humanity that picks up on Luban’s emphasis on politics but limits this to policy. Just as Luban saw an organisational dimension as characterising the political in the crime, the Closing Order requires the existence of policy in tying crimes against humanity to the defendants. Policy seems to reflect the organisational responsibility that Luban saw in the crime, and the emphasis in the Closing Order provides, just as Luban’s politics, a link between the individual who was victimised by the marriage and the collective of humanity. In the Closing Order, it is as if policy were the materialisation of politics. What is then noticeable with reference to the representation of victims is the way that in the act of legally classifying the victim – a victim of crime – the victim who appears is humanity, a collective category. The individual, who was affected by the marriage, has not just become many victims, a plural, but (part of) a collective.

83 84 85 86 87

As claimed by Heidegger: ibid. 110. On Arendt, see discussion above. Luban discusses diversity: ibid. 114. Luban, above n 36, 85, 112, 113. Ibid. 116. The other features according to Luban, ibid are that they ‘are typically committed against fellow nationals as well as foreigners’ (93); are international crimes (95); ‘consist of the most severe and abominable acts of violence and persecution’ (98); ‘are inflicted on victims based on their membership in a population rather than their individual characteristics’ (103). The way Luban presents this last feature concerning population is not relevant for the ECCC as the ECCC Law holds a discriminatory element in crimes against humanity. 88 Ibid. 95 (spelling amended). 9 Ibid. 97. See also Richard Vernon, ‘What is Crime against Humanity?’ (2002) 10(3) Journal of 8 Political Philosophy 231, who claims that ‘crime against humanity is best thought of as a moral inversion, or travesty, of the state’ (233) and develops an argument in relation to the crime as an abuse of the state. 0 Note that Luban, above n 36, distinguishes between a victim of crimes against humanity and 9 humanity therein: 88. In contrast, I am interested in the humanity that is victimised.

The Khmer Rouge marriages and the victims of crime 87 Then, in the translation from the event of the marriages into the crime of crimes against humanity, there is a slippage in the victim as subject of representation, a shift between individuals and the collective. With this understanding of the victim in crimes against humanity as related to the collective humanity, composed in relation to policies, I now turn to the underlying offences. The focus on the contextual elements only paints half the picture of the victim of the Khmer Rouge marriages as the crime is constituted by underlying offences.

Characterising the underlying offence Given the structure of ICL where crimes are constituted by underlying offences, the practice of representing the Khmer Rouge marriages is not only a translation into law but also a categorisation within law; into chapeau elements of the crime and into the particular underlying offence. For the figure of the victim, the representation as crime victim is double; as a victim of crimes against humanity as well as a victim of the particular underlying offence. Between these representations, the victim moves, providing manifold figurations. As discussed above, when the Closing Order focuses on the chapeau elements of crimes against humanity, the victim is a collective – humanity – that is primarily held together as a result of policy. How does the victim figure in relation to the underlying offences? The Closing Order presents the marriages as three separate underlying offences. In the first, the marriages establish a context for rape. However, ‘rape’ moves in the resulting charge. In the Closing Order, it appears as a discrete underlying offence that constituted a crime against humanity,91 but as the defence successfully challenged this characterisation, rape was re-characterised and subsumed under the second underlying offence, namely, ‘other inhumane acts’ in the form of sexual violence.92 Here, the relevance of rape becomes not so much an offence, but rather ‘facts’ – evidence – demonstrating the commission of ‘other inhumane acts’. Regardless of whether the offence is rape or other inhumane act in the form of sexual violence, the marriages provide the necessary circumstance. In the third charge, the marriages are not a circumstance but a consequence. Here, the charge consists of the imposition of the marriages, characterised as ‘other inhumane acts’. ‘Other inhumane acts’ figures in ICL as a residual category, included ‘in the spirit of the Martens Clause, to avoid creating an opportunity for evasion of the laws of humanity.’93 What is notable about the offence category of other inhumane acts is the way it centres upon the inhumanity of the acts. As the ECCC Pre-Trial Chamber put it, other inhumane acts are ‘considered “inhumane” in the sense

91 002 Closing Order [1430]. This characterisation was in accordance with the ECCC Law, which enumerates rape as a constitutive act of crimes against humanity. See ECCC Law art 5. 92 002 Decision on Appeals by Nuon Chea and Ieng Thirith Against the Closing Order (15 February 2011) [154]. 93 Ibid. [158].

88  The Khmer Rouge marriages and the victims of crime that they are of a similar nature and gravity to those specifically enumerated.’94 They are understood as having ‘seriously affected the life or liberty of persons, including inflicting serious physical or mental harm on persons or . . . otherwise [be] linked to an enumerated crime against humanity.’95 In this charge, there is something else in the Khmer Rouge marriages, other than rape, that is characterised as inhumane and making them a crime against humanity. In contrast to the representation of the victim as humanity, carried by an essence of policy, the victim figuring in relation to the underlying offences appears through a translation of the inhumanity of the underlying offence or act. How does this appear in the offence supported by the facts of rape in forced marriage and the offence that is simply characterised by forced marriage? The elusiveness of rape In contrast to the collective victim figure in crimes against humanity, rape has been described as the ‘paradigmatically individualized crime.’96 As such, situating rape in relation to crimes against humanity acutely demonstrates the way the figure of the victim shifts between appearing as collective and as individual. In addition to this contrast between the collective and the individual, there is a certain elusiveness in rape. There are few acts that evoke such clear images in social discourses as rape and which at the same time have, as a crime, constantly undergone reform and redefinition.97 In the categorisation of criminal law, rape constantly shifts between figuring as an act defined by its context and by its consequence. In this regard, the re-characterisation in the Closing Order of rape into facts of ‘other inhumane acts’ accentuates this mobility in rape. In unfolding the elusiveness of rape, let me begin with the definition of rape presented in the Closing Order: by imposing the consummation of forced marriages, the perpetrators committed a physical invasion of a sexual nature against a victim in coercive circumstances in which the consent of the victim was absent.98 The particular criminal act that constitutes rape is ‘invasion’. Rape does not (only) act on the body by penetrating it, but it also ‘takes over’ the functions of

94 For example, namely, murder, extermination, enslavement and deportation: ibid. [160]. 95 Ibid. [164]. 96 May, above n 36, 96. Contrast this with the approach by Catharine MacKinnon, for whom rape is a crime that may be committed against an individual but is ‘intrinsically collective and groupbased’ in that it is against the social group of ‘women’. See ‘Creating International Law: Gender as Leading Edge’ (2013) 36 Harvard Journal of Law & Gender 105, 106. 97 For a discussion on the slippages in rape in relation to Australian laws and reforms, which he calls a ‘crisis of classification’, see Peter D. Rush, ‘Jurisdictions of Sexual Assault: Reforming the Texts and Testimony of Rape in Australia’ (2011) 19(1) Feminist Legal Studies 47. 98 002 Closing Order [1431].

The Khmer Rouge marriages and the victims of crime 89 that body. By resorting to the concept of ‘invasion’, the Closing Order draws on the definition of the actus reus of rape adopted in ICL by the Akayesu case before the International Criminal Tribunal for Rwanda (ICTR) in 1998.99 There, the judges introduced the notion of invasion to move away from what in domestic courts has been a recurring discussion on the location and existence or extent of penetration, referred to by the judges in the Akayesu judgment as ‘mechanical’ definitions.100 The term ‘invasion’ was then picked up by the ICC, which in its Elements of Crime explicitly notes that ‘invasion’ is meant to ensure gender neutrality, but must result in vaginal/anal or penile/oral penetration.101 By defining rape as an ‘invasion’, the ECCC Closing Order presents the act as something that targets an individual, affecting the particular being who is raped. In the Closing Order, ‘invasion’ is understood not (simply) as penetrating particular body parts, but is specified as ‘the targeting of the physical and physiological integrity of the victim’.102 For the purposes of establishing the act of rape in ICL, integrity is not to be understood as ‘honour.’103 In the Geneva Conventions, honour was considered to be the locus of the harm rape inflicted,104 and feminists have fought hard to abolish any references to women’s honour as it suggests the problem with rape is one of morality and chastity. As a problem of honour, rape is represented as affecting the (morals of a) collective and not as an act of violence against an individual.105 Here then, the shift through which the (individual) victim becomes the collective (honour) has been asserted as failing to recognise the individual harm. Whereas integrity may elsewhere be associated

99 Prosecutor v Akayesu (Judgement) (ICTR, Chamber I, Case No ICTR-96-4-T, 2 September 1998) (‘Akayesu Judgment’). 100 ‘The central elements of the crime of rape cannot be captured in a mechanical definition of objects and body parts’: Akayesu Judgment [597]. Celebrated by many feminists, the term was successfully lobbied for at the ICC, and now appears in Assembly of States Parties to the Rome Statute of the International Criminal Court: First Session – New York, 3–10 September 2002 – Official Records, Doc No ICC-ASP/1/3 (adopted and entered into force 9 September 2002) Part II-B (‘ICC Elements of Crime’). 101 ICC Elements of Crime art 7(1)(g)-1.1. 102 002 Closing Order [1431] (emphasis added). 103 Compare with the Oxford Paperback Thesaurus listing of ‘honour’ for the word ‘integrity’: Maurice Waite, Lucy Hollingworth and Duncan Marshall (eds), Oxford Paperback Thesaurus (Oxford University Press, 3rd ed, 2006). 104 ‘Women shall be especially protected against any attack on their honour, in particular against rape, enforced prostitution, or any form of indecent assault’: Geneva Convention Relative to the Protection of Civilian Persons in Time of War, opened for signature 12 August 1949, 75 UNTS 287 (entered into force 21 October 1950) art 27. 105 On how feminist interventions have re-characterised rape, see Janet Halley, ‘Rape at Rome: Feminist Interventions in the Criminalization of Sex-Related Violence in Positive International Criminal Law’ (2008) 30(1) Michigan Journal of International Law 1, 57–9; Rebecca Stringer, Knowing Victims: Feminism, Agency and Victim Politics in Neoliberal Times (Routledge, 2014) 67. See also Hilary Charlesworth, ‘Feminist Methods in International Law’ (1999) 93(2) American Journal of International Law 379, 386; Valerie Oosterveld, ‘Sexual Slavery and the International Criminal Court: Advancing International Law’ (2004) 25(3) Michigan Journal of International Law 605, 613.

90  The Khmer Rouge marriages and the victims of crime with honour, in recent literature on rape, ‘integrity’ instead appears alongside the term ‘autonomy’,106 invoking what is perceived as a core moral and political value in a liberal society. Here, the capacity for autonomy is, as Nicola Lacey points out, construed as ‘central to what it means to be a person’, necessary for the ‘meaningful pursuit of human life.’107 Although integrity and autonomy are often presented concomitantly, there is a difference. While autonomy in the liberal tradition places the mind over the body, assuming the former’s control over the latter, the concept of integrity can be seen as operating at the centre of the relationship between body and affect, and the way psychic and bodily experiences integrate.108 However, this integration of body and mind in the concept of integrity does not seem to be operating in the Closing Order. Despite the fact that ‘integrity’ is represented in the Closing Order as the target of the invasion, this is specified as ‘physical and physiological,’109 something that emphasises materiality and the bodily dimension. It produces the body as the locus of suffering of the rapes in marriages; integrity as something that is physical, distinct from mental. Notably, it also points to the way rape is not (only) inflicted on the body but may also take over what one’s body does. This encompasses an understanding of rape that can hold men as victims of rape. By having his bodily functions overtaken, invaded, in a heterosexual intercourse, a man can figure as a victim of rape.110 The Closing Order specification that the ‘invasion’ targets ‘the physical and physiological integrity of the victim’, then, appears to ensure both women and men may be constructed as victims of the rapes. In this way, the representation of rape as an ‘invasion’ operates inclusively and constitutively, with a broader understanding of the crime constituting victims. An ‘invasion’ in the Closing Order targets an individual, whether man or woman, with an act that is not necessarily penetration but affects the bodily integrity of the victim. While rape figures as a ‘paradigmatically individualized crime,’111 in which the ‘integrity’ of a person is ‘invaded’, there is in relation to the Khmer Rouge marriages a slippage that appears when one brings the figure of the perpetrator into the picture. The alleged perpetrators, the defendants in Case 002 – who

106 Illustrative are the discussions following the so-called Delhi rape case. See Ratna Kapur, ‘Gender, Sovereignty and the Rise of a Sexual Security Regime in International Law and Postcolonial India’ (2013) 14(2) Melbourne Journal of International Law 317. 107 Lacey, above n 21, 105. 108 Ibid. 118: ‘Within the language of integrity, the real damage of rape might be expressed more fully, recognising the way in which rape violates its victims’ capacity to integrate psychic and bodily experiences.’ 109 002 Closing Order [1431]. 110 Rape and other forms of sexual violence committed against men have in ICL been characterised as ‘great suffering or serious injury to body or health’, ‘cruel treatment’ as a violation of the laws and customs of war, ‘other inhumane acts’ as a crime against humanity, ‘persecution’ as a crime against humanity, sexual assault (under rape) as a crime against humanity, inflicted through acts such as sexual mutilation and forced fellatio, suffering inflicted on the body, the physical integrity. See Sandesh Sivakumaran, ‘Sexual Violence Against Men in Armed Conflict’ (2007) 18(2) European Journal of International Law 253. 111 May, above n 36, 96.

The Khmer Rouge marriages and the victims of crime 91 ‘intended the physical invasion of a sexual nature, with the knowledge that it occurred in coercive circumstances or otherwise without the consent of the victim’112 – are surviving CPK leaders. Whereas in domestic law, the perpetrator is almost always the one accused of having physically and materially raped the victim, this is not always the case in ICL113 and it is not suggested that either of the defendants in ECCC Case 002 personally conducted the act of rape. Instead, their alleged responsibility for the other inhumane act of rape is through a joint criminal enterprise in which they are said to have instigated the marriage policy discussed above. There is a shift here: ‘Integrity’ figures in relation to an individual, which holds a sense of immediacy, an instantaneous act of violation in ‘physical invasion’. In contrast, there is nothing immediate or bodily for the perpetrators who were not physically present when the acts were committed. And here lies the shift: present when the marriages were being consummated, when the rapes were committed, were only victims and witnesses, no perpetrators. The perpetrators committed the crime from afar against not a particular individual but against a collective of ‘single people in their twenties or early thirties’,114 more precisely, ‘married couples’.115 And importantly, both parties in the consummation of the marriages are said to have been raped. In this sense, the victim of the act of rape appears not as an individual, but as a couple. Furthermore, consider the way the victim of rape moves in the contextual element in the definition of rape. The Closing Order qualifies that the invasion is only a rape if and when committed ‘in coercive circumstances in which the consent of the victim was absent’.116 As such, the definition of necessary circumstance includes both context (coercive circumstances) and the mindset of the victim (absence of consent). There has been a long discussion on whether rape is most appropriately characterised by coercion or lack of consent, one that in some jurisdictions is still ongoing.117 Chambers in international criminal tribunals have presented alternating definitions, emphasising either one or the other or a combination of the two. In the case against Akayesu at the ICTR, coercive circumstances was the sole element and the Trial Chamber further held that ‘coercive circumstances need not be evidenced by a show of physical force’ but ‘can be inherent in circumstances like armed conflict or military presence’.118

112 002 Closing Order [1431]. 113 For an overview of modes of liability for rape in ICL, see Patricia Viseur Sellers, ‘Individual(s’) Liability for Collective Sexual Violence’ in Karen Knop (ed), Gender and Human Rights (Oxford University Press, 2004) 153. 114 002 Closing Order [220]. 115 Ibid. [1432]. 116 Ibid. [1431]. 117 For an argument for consent, see Debra Bergoffen, ‘February 22, 2001: Toward a Politics of the Vulnerable Body’ (2003) 18(1) Hypatia 116. For an argument for coercion, see Catharine A. Mackinnon, ‘Defining Rape Internationally: A Comment on Akayesu’ (2006) 44 Columbia Journal of Transnational Law 940. For a discussion on the two, see, for example, Rush, above n 97. 118 Akayesu Judgment [688].

92  The Khmer Rouge marriages and the victims of crime By comparing it to torture,119 the Chamber construed rape as an act in which consent is a non-issue. Catharine MacKinnon, in commenting on the judgment, states that in conditions that constitute crimes against humanity, with its widespread and systematic character, ‘inquiry into individual consent [is] not even worth discussion.’120 In her view, the definition put forward in Akayesu meant that ‘for the first time, rape was defined in law as what it is in life.’121 Not all international criminal chambers, let alone feminists, share this understanding of rape as characterised solely or primarily by coercive circumstances. In the case against Kunarac et al. before the ICTY, the Trial Chamber held as necessary for an act to be translated into rape that it ‘occurs without the consent of the victim.’122 It further specified that consent ‘must be . . . given voluntarily, as a result of the victim’s free will, assessed in the context of the surrounding circumstances.’123 For Debra Bergoffen, the Trial Chamber, by appealing to the criteria of consent, saw how ‘rape is a violation of the humanity of the body.’124 The issue of consent is important, according to Bergoffen, as it does not hinge on evidence of pain. Pain – or, more specifically – ‘consensual pain relationships’, she writes, ‘are neither uncommon nor criminal,’125 making it an inappropriate element of rape. What makes rape distinct from other acts or relations is, according to her, more precisely the lack of consent. For her, a sexual act that occurs without consent violates a person’s humanity, its integrity, whether or not it occurs through violence or coercion.126 However, while the ICTY Trial Chamber judgment in Kunarac held lack of consent as an element of rape, the Appeals Chamber specified that certain situations, such as those under which the women in this case had been held, are inherently coercive and lack of consent need not be proven in individual acts.127 This effectively moved the question of demonstrating the contextual elements of rape away from the individual act. While this may make an inquiry into whether a victim ‘actually wanted’ the sexual act impossible as a defence strategy, the flipside is, as Karen Engle has argued, that a predetermination of coercion ‘essentially makes consensual sexual relationships [in these circumstances] legally impossible.’128

119 120 121 122 123 124 125 126 127

128

Ibid. [597]–[598]. Mackinnon, ‘Defining Rape Internationally’, above n 117, 943. Ibid. 944. Prosecutor v Kunarac (Judgement) (ICTY, Trial Chamber, Case Nos IT-96-23-T and IT-96-23/ 1-T, 22 February 2001) [460] (‘Kunarac Trial Judgment’). Ibid. Bergoffen, above n 117, 119. Ibid. 121. Ibid. 119. ‘Such detentions amount to circumstances that were so coercive as to negate any possibility of consent . . . the coercive circumstances present in this case made consent to the instant sexual acts by the Appellants impossible’: Prosecutor v Kunarac (Judgement) (ICTY, Appeals Chamber, Case Nos IT-96-23-T and IT-96-23/1-T, 12 June 2002) [132], [133] (‘Kunarac Appeals Judgment’). Karen Engle, ‘Feminism and Its (Dis)Contents: Criminalizing Wartime Rape in Bosnia and Herzegovina’ (2005) 99 American Journal of International Law 778, 804.

The Khmer Rouge marriages and the victims of crime 93 Engle’s concern is relevant for the ECCC and the Khmer Rouge marriages. What is the location of the coercion? Can couples that were forced to wed have sexual intercourse that is not characterised as rape? And what about the element of lack of consent? Throughout the Closing Order, the marriages are referred to as ‘forced’, a synonym of which is ‘coerced’. And, as discussed above, the marriages are characterised as forced because of the existence of a policy on marriage. Indeed, ‘people were not able to assert their opposition [to a marriage proposal] for fear of violence or death.’129 In this context of forced marriage, their consummation is presented as further coerced. According to the Closing Order, ‘consummation of marriage was regularly monitored by CPK cadre,’ who ensured that ‘couples who refused to consummate the marriage would be arrested.’130 What appears in the Closing Order as factually substantiating the characterisation of the acts of consummation as rape is then the element of coercion. Yet, the definition provided in the Closing Order presents an act committed ‘in coercive circumstances in which the consent of the victim was absent’;131 an understanding of the crime that combines coercion and lack of consent in a way that is not found elsewhere.132 The question, though, is just how relevant the element of consent is. It is notable that nowhere in the factual findings on the marriages133 or in the legal findings, except in the definition, does the question of consent or lack thereof appear.134 The only time a lack of consent does appear – a reference in the Closing Order to a witness who stated she had ‘had sexual intercourse with her husband despite not consenting’ – is notably not in the factual accounts of the marriages or the legal findings of rape, but in the factual account of the ‘living conditions’ in worksites and cooperatives.135 Consent seems to appear only to disappear, while the monitoring by CPK cadres, who allegedly acted on behalf of the accused, factually supports the element of coercion, making it ‘rape.’ As mentioned, rape was upon appeal re-categorised from constituting the underlying offence in the charge to ‘facts’ supporting an (other) inhumane act.

129 002 Closing Order [219]. 130 Ibid. [1432]. The CPK cadres, who monitored the consummation of the marriages, do not figure more than as potential witnesses as they are not under the jurisdiction of the ECCC and cannot be held to account. 131 002 Closing Order [1431]. 132 The ICC employs a definition of rape where force, coercion and consent operate alternatively. In other words, the act is committed by force or coercion or consent: ‘The invasion was committed by force, or by threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or another person, or by taking advantage of a coercive environment, or the invasion was committed against a person incapable of giving genuine consent’, footnoted, ‘It is understood that a person may be incapable of giving genuine consent if affected by natural, induced or age-related incapacity’: ICC Elements of Crime art 7(1)g-1.2. 133 002 Closing Order [216]–[220], [842]–[861]. 134 There is a reference to a witness stating she ‘had sexual intercourse with her husband despite not consenting’, but this is ordered in the factual account of worksites and cooperatives under ‘living conditions’ and not in relation to the marriages: ibid. [314]. 135 002 Closing Order [314].

94  The Khmer Rouge marriages and the victims of crime With this re-categorisation, there is a change. A notable feature of rape is the way it, in most definitions, including in the Closing Order, is a crime of circumstance and not of consequence.136 In other words, there is a physical element of rape that hinges on circumstance – committed ‘in coercive circumstances in which the consent of the victim was absent.’137 In contrast, the underlying offence into which rape is re-characterised is a crime of consequence. ‘Other inhumane acts’ are constituted by acts that ‘seriously affected the life or liberty of persons, including inflicting serious physical or mental harm on persons.’138 An act may be considered an ‘other inhumane act’ of crimes against humanity only if the effects of the acts, its consequences, ‘seriously affected the life or liberty of persons’. The question then becomes, how does rape become a crime of consequence? Injury is assumed in rape; it is assumed that victims suffer from rape because they were coerced or did not consent. It is not that injury is irrelevant for the crime; it is assumed. In re-characterising rape from an independent underlying offence to subsuming it under other inhumane acts, the Pre-Trial Chamber is careful to note that “[r]ape is one of the worst sufferings a human being can inflict upon another” . . . Rape constitutes a gross violation of the victim’s physical integrity, in addition to inflicting lifelong and severe consequences upon the victim’s mental well-being.139 In describing rape as ‘one of the worst sufferings’, the Pre-Trial Chamber is citing the ICTY Trial Chamber which in Kunarac had elaborated that ‘some acts establish per se the suffering of those upon whom they were inflicted. Rape is obviously such an act.’140 This emphasis on the severity of the injury in rape and its consequences stands in somewhat of a contradiction with the definition of rape which contains no consequential term such as ‘injury’, ‘harm’ or ‘suffering figure’. It appears then that in the re-characterisation of the consummation of the Khmer Rouge marriages from ‘rape’ into ‘other inhumane acts’, the relation between injury and rape has gone from being assumed to an explicit essence. And so, rape slips from being an act of both coercion and lack of consent to one of primarily coercion; the element of invasion opens for the representation of both spouses being raped through the consummation but by representing both spouses as raped, the act shifts from being one committed against individuals to couples; and importantly, in the dismissal of one count in relation to marriages by

136 See Peter Rush and Alison Young, ‘A Crime of Consequence and a Failure of Legal Imagination: The Sexual Offences of The Model Criminal Code’ (1997) 9(1) Australian Feminist Law Journal 100. 137 002 Closing Order [1431]. 138 002 Decision on appeals by Nuon Chea and Ieng Thirith against the Closing Order (ECCC, PreTrial Chamber, 15 Feb 2011) [164]. 139 Ibid. [150] quoting Kunarac Trial Judgment. 140 Kunarac Appeals Judgment [150].

The Khmer Rouge marriages and the victims of crime 95 the Pre-Trial Chamber, rape slips from being an offence into fact. For the figure of the victim, these slippages are part of its constitution, its very core being. The practices through which the victim is constituted remain in constant movement and so, the figure of the victim that appears is fundamentally indeterminate. Alongside this representation of the marriages as constituting rape, the Closing Order presents an additional charge and to this I now turn.

The inhumane acts of ceremony The presentation of the Khmer Rouge marriage in a third charge in the Closing Order, a charge of ‘crime against humanity of other inhumane acts through acts of forced marriage,’141 suggests a concern over something in the marriages that goes beyond the consummation, beyond the sexual act that is characterised as rape. As noted above, ‘other inhumane acts’ encompass acts that are ‘of a similar nature and gravity to those specifically enumerated,’142 in that they ‘seriously affected the life or liberty of persons, including inflicting serious physical or mental harm on persons.’143 What is this suffering or injury that is of ‘similar nature and gravity’ and which is not already characterised as ‘rape’? In the factual findings of crimes, the Closing Order presents ‘the regulation of marriage’ in some detail. Yet, it is notable that what is primarily discussed is its initiation – the wedding ceremony and its immediate aftermath. According to the Closing Order, allegedly on orders from ‘the highest level’,144 people were typically married in mass ceremonies ranging from two couples to over 100 couples, with the majority of witnesses in ceremonies between 10 to 60 couples.145 These group ceremonies ‘followed a similar pattern.’ Couples were provided with new black clothing and krama scarves. Witnesses state that couples were brought together either sitting or standing next to each other or holding hands and being made to make vows to accept each other and to work to achieve the objectives of ‘Angkar’ and the revolution. Others refer to spouses walking under a flag and reading out their spouses’ biographies. Witnesses give evidence of the absence of traditional Cambodian ritual such as the participation of monks.146

141 002 Closing Order [1442]. 142 For example, namely murder, extermination, enslavement and deportation. See Decision on Appeals by Nuon Chea and Ieng Thirith Against the Closing Order (ECCC, Pre-Trial Chamber, 15 Feb 2011) [160]. 143 Ibid. [164]. 144 002 Closing Order [845]. 145 Ibid. [844]. 146 Ibid. [855].

96  The Khmer Rouge marriages and the victims of crime In contrast to traditional ceremonies, ‘family members were not present,’ but only ‘the other couples and the persons who arranged the ceremony.’147 After this ceremony, the marriages were to be consummated; something that was, as noted previously, monitored.148 The emphasis on ceremony in the factual description of the marriages feeds into the legal findings. The Closing Order presents that it was by being ‘forced to enter into conjugal relationships in coercive circumstances’ that victims endured serious physical or mental suffering or injury or a serious attack on human dignity of a degree of gravity comparable to that of other crimes against humanity.149 It is thus the coerced entry into the marital relations that is considered to cause suffering or injury or constituting an ‘attack on human dignity’. It is not the marriage in itself or how marriage subjectifies individuals within a relationship that is at issue, but that the marriage was forcefully initiated in the first place. In the legal findings, the marriages and the criminality of their initiation are supported by two factual descriptions. First, there are the wedding ceremonies. The weddings, notes the Closing Order, ‘took place devoid of traditional involvement of the parents. There was no respect of the traditional rituals.’150 This characterisation of the way the weddings broke with existing traditions as holding a criminal element is noteworthy, particularly in relation to the figure of the victim. The presentation of a break with traditions and rituals as inflicting ‘serious . . . suffering or injury’ suggests that not only were the individuals who wed victimised, but also the relations that hold society together were affected. Because the ceremonies were held without ‘respect of the traditional rituals’, they severed the relations to the past and to the community, the relations that constitute society. The ECCC is not the first to pick up on the way ceremonies characterise lawful marriages. In the AFRC case before the Special Court for Sierra Leone (SCSL) (more on which below), Justice Doherty argued that what distinguishes forced marriages from arranged ones is, apart from the lack of consent from spouses, the absence of family involvement and of ceremonies.151 Furthermore, this presentation of the Khmer Rouge wedding ceremonies as rupturing important societal bonds resonates with the work by anthropologist Peg LeVine. According to her, the Khmer Rouge approach to traditional practices and wedding rituals was ‘erratic . . . attending to some, omitting some, including some, revamping some,

147 Ibid. [856]. 148 Ibid. [858]. 149 Ibid. [1443], [1444]: ‘As regards the mens rea, the perpetrators knew of the factual circumstances that established the gravity of their acts’. 150 Ibid. [1447]. 151 Prosecutor v Brima (Judgement) (SCSL, Trial Chamber II, Case No SCSL-2004-16-T, 20 June 2007) (Partly Dissenting Opinion of Justice Doherty On Count 7 (Sexual Slavery) and Count 8 (‘Forced Marriages’))582–96 [36] (‘AFRC Trial Judgment’).

The Khmer Rouge marriages and the victims of crime 97 and violating many sacred rites.’152 The Khmer Rouge ignored the traditional referrals to horoscopes for appropriate wedding days153 and mothers were not allowed to participate in their children’s weddings. This, LeVine claims, ‘violated the culture.’154 In LeVine’s writing, the wedding ceremonies conducted during this period became part of a larger ‘ritualcide’155 and a ‘cosmic betrayal’156 of the Cambodian population. They cannot be considered separate but instead distorted the way an entire generation became adults through weddings, pregnancy, births and parenthood.157 This ‘ritualcide’158 eroded people’s ‘psycho-emotional, familial, cultural and spirit-based infrastructures,’159 altered the way people engaged with spirits and ancestors, something that severed their sense of predictability and safety.160 Her concept of ‘ritualcide’, while not a legal term, is nevertheless akin to one of the issues the Closing Order represents as injurious in the marriages. And affected by the ritualcide were not only individuals but also ‘infrastructures’ of society, the relations to the past and to others that make community. The suggestion that not only individuals but also the community at large can be considered to be a victim is challenging. On the one hand, there is the danger that a representation of the community as victim would undermine the suffering inflicted on the individual. For example, as discussed above, feminists have fought hard to disassociate – re-represent – acts such as rape from ideas of communal harm. On the other hand, there is also a feminist critique against assumptions of autonomous individuals who figure independently of others around. Consider, for example, Robin West’s argument about the way women are ‘essentially connected’ – ‘through pregnancy, intercourse, and breast-feeding, and existentially, through the moral and practical life.’161 How can and should criminal law represent this connectedness and acts that target it?162 But this notion of interconnected and interrelated beings is not limited to women. In examining the way processes of mourning and loss constitute subjects, Judith Butler argues that we are ‘socially constituted bodies, attached to others.’163 Her conception of the social as held together through attachments provides a way of appreciating the way we are ‘at risk of losing those attachments, exposed to others, at risk of violence by virtue of that exposure.’164 And so, severing the attachments that constitute

152 153 154 155 156 157 158 159 160 161 162

LeVine, above n 6, 175. Ibid. 61. Ibid. 175. Ibid. 183. Ibid. Ibid. 181. Ibid. 182–3. Ibid. 181. Ibid. 183. Robin West, ‘Jurisprudence and Gender’ (1988) 55(1) University of Chicago Law Review 1, 3. Ni Aolain above n 21; Fionnuala Ni Aolain, ‘Exploring a Feminist Theory of Harm in the Context of Conflicted and Post-Conflict Societies’ (2009) Minnesota Legal Studies Research Paper No 09–45, http://dx.doi.org/10.2139/ssrn.1507793. 163 Judith Butler, Precarious Life: The Powers of Mourning and Violence (Verso, 2004) 20. 64 Ibid. 1

98  The Khmer Rouge marriages and the victims of crime society inflicts violence on individuals as well as on relations. Butler narrates how loss is not simply a situation of ‘an “I” exist[ing] independently over here and then simply los[ing] a “you” over there, especially if the attachment to “you” is part of what composes who “I” am.’165 Instead, she suggests that what a loss reveals in an acute way are ‘the ties we have to others . . . show[ing] us that these ties constitute what we are, ties or bonds that compose us.’166 For her, what an instance of loss shows is the way the one who has lost – the object – is constituted by relations and attachments. In a similar way, the Closing Order representation of the break with traditions and rituals as constituting an inhumane act represents the victim as community composed of relations to the past and to each other. And here appears yet another slippage, one between the individual couple wed and the community, and between the underlying offence and the crime. Perhaps this, albeit in a different way, makes a similar point to that by Luban discussed above, namely that what characterises crimes against humanity is that they target the fact that humans live in groups.167 But perhaps I am reading too much into the ECCC representation of the ceremonies as suffering, injury, an attack on human dignity and how that figures victims as a community? Perhaps I am getting ahead of myself in seeing a representation of the human interconnectedness when there is little thereof? Perhaps what I am seeing is another version, my version, of the promise in law and the promise in representation? Immediately after the factual presentation of ceremonies, the Closing Order presents another factual statement to corroborate the existence of a common purpose. And curiously, this is the consummation of the marriages.168 And so although consummation was the sole focus in the first charge (rape as other inhumane acts), it reappears here in the second charge, referenced in support of the (entry into the) marriages as inflicting injury or suffering. In addition, another sexual act figures in support of the characterisation of the marriages as an ‘attack against the civilian population’. According to the Closing Order, the incidences of forced marriage, by their nature or consequences, were part of the attack against the civilian population; in particular the imposition of sexual relations aimed at enforced procreation.169 These latter ‘sexual relations’ seem to not only encompass the act of marriage consummation, but also extend beyond this act of initiation, with a purpose of ‘procreation.’ It is curious that the sexual act returns also in this charge. While the presentation of the wedding ceremony suggests that those affected by the marriages were both those immediately targeted and – because of the severing

165 166 167 168 169

Ibid. 22. Ibid. Luban, above n 36, 116–17. 002 Closing Order [1447]. Ibid. [1445].

The Khmer Rouge marriages and the victims of crime 99 of ‘traditional rituals’ – the relations that make up society, this repetition of the sexual act as victimising instead emphasises a representation of the victim as primarily bodily. Indeed, it is my view that the return of a (forced) sexual act to support the claim of inhumane act places undue priority on sexual suffering and as such, provides a parsimonious account of the complex relations and the multi­ faceted suffering imposed through these marriages. When this charge is read alongside the charge of rape, the figuring of a victim whose suffering is primarily bodily and sexual is consolidated through the repetition. This emphasis in the representation of the criminality in forced marriages on sexual violence stands in contrast to the representation of forced marriages in the AFRC case170 at SCSL. There, the issue was whether or not the forced marriages women had been subjected to during the Sierra Leonean conflict were sufficiently characterised by the crime of ‘sexual slavery’ or whether there were distinct issues more appropriately captured as ‘other inhumane acts’. From the start, the prosecution had submitted that ‘rape’ did not sufficiently characterise the event.171 In contrast to the majority of the Trial Chamber (Doherty J. dissenting),172 the Appeals Chamber found forced marriage could constitute a distinct act under ‘other inhumane acts’ and was not necessarily subsumed by the charge of ‘sexual slavery’. According to the Appeals Chamber, sexual slavery and forced marriage are distinct from each other in two ways. Firstly, forced marriage involves compelling a person into a ‘forced conjugal association’, resulting in ‘great suffering, or serious bodily or mental injury on the part of the victim’. Secondly, unlike sexual slavery, forced marriage implies an exclusive relationship between the parties, breach of which ‘could lead to disciplinary consequences’ for the ‘wife’.173 Significantly, for the Appeals Chamber, forced marriage is ‘not predominantly a sexual crime.’174 More recently, a Pre-Trial Chamber of the ICC was faced with the same question, namely whether conduct characterised as ‘forced marriage’ is subsumed in sexual slavery.175 And like the SCSL, the ICC Pre-Trial Chamber

170 Prosecutor v Brima (Judgment) (SCSL, Appeals Chamber, Case No SCSL-2004-16-A, 22 February 2008) (‘AFRC Appeals Judgment’). 171 AFRC Trial Judgment 701. 172 AFRC Trial Judgment found no distinct issues, translating the suffering of forced marriage into the underlying offence of sexual slavery, an enumerated act under the SCSL statute but not at the ECCC. In other words, the Trial Chamber found that the suffering women had experienced resonated with practices of slavery and, more particularly, a form of slavery that was sexual in nature. But experts before the Court had argued that forced marriage was not simply characterised by rape, sexual slavery, forced pregnancy or forced domestic labour and that the forced marriage had constituted something more than the sum of all these together. See also Micaela Frulli, ‘Advancing International Criminal Law: The Special Court for Sierra Leone Recognizes Forced Marriage as a “New” Crime Against Humanity’ (2008) 6(5) Journal of International Criminal Justice 1033, 1036. 173 AFRC Appeals Judgment [195]. 174 Ibid. 175 Prosecutor v Ongwen (Decision on the Confirmation of Charges) (ICC, Pre-Trial Chamber II, Case No ICC-02/04-01/15, 23 March 2016) [87]–[95] (‘Ongwen Decision on Confirmation of Charges’).

100  The Khmer Rouge marriages and the victims of crime held that forced marriage is distinct, characterised by having been imposed, ‘regardless of the will of the victim, of duties . . . as well as of a social status’, and of imposing an exclusive relation.176 Of course, the ECCC is not bound by the rulings of the SCSL nor the ICC, and there are differences in the marriages in DK on the one hand, and in Sierra Leone and Uganda on the other. Whereas in DK both spouses were forced to wed by Angkar and were thereby victims of the crime, the SCSL and the ICC present only women as victims of forced marriage, since they were forced to be ‘bush wives’ by their future ‘husbands’. Nevertheless, it is striking how differently two international(ised) criminal courts characterise the criminality of forced marriages. Whereas the judges at the SCSL emphasised (forced) marriage as a status and that it was not ‘predominantly a sexual crime’ but a crime of continued violence, the ECCC Closing Order characterises the criminality in the Khmer Rouge marriages as instantaneous, rather than status-based, and sexual. The figure of the victim coming out from the underlying offences as described in the Closing Order is one who moves between being characterised in relation to rape, consummation, ceremonies, inhumanity. Rather than providing for multiple figurations at once, by which the figure would be one who suffered all at once, there seems to be a slippage, a preference or possibly a bias, by which the characteristics of ceremonies become consummation, the social relation or status becoming an emphasis on bodily harm. I believe this slippage is a reflection of a difficulty in ICL, at least as expressed at the ECCC, to hold onto gender as an independent category, distinct from sex. When an unprecedented event such as the Khmer Rouge marriages is translated into ICL, the gendered aspects, such as the gendering of persons into husband and wife, are occluded in preference for the sexual violence. Gender becomes not just sex but sexual violence. In this way, the potentially multifaceted suffering induced by the marriages slip into a more easily recognisable harm of sexual violence.

The promise of representation With the characterisation of the Khmer Rouge marriages as offences and crimes, the Closing Order provides for a legal representation of victims of crime. There is a promise of representation, a promise that suffering is given meaning by ‘serving a purpose in the rectification of wrongs by assigning responsibility,’177 and that those who suffered are represented as victims. By picking up on, for example, the wedding ceremonies, and by characterising them as facts that support an inhumane act of crimes against humanity, the Closing Order ‘constitutes a world of meaning and action’,178 providing a language to capture the injury inflicted on society through the marriages. The victim is represented as individuals, couples,

176 Ibid. [93]. 177 See Minkkinen, above n 1, 70. 178 See White, above n 37, xiv.

The Khmer Rouge marriages and the victims of crime 101 parents, even community – while part of society, the victim is distinct within it. At the very same time, the representation excludes and silences. The marriages slip into ceremonies and the only experience of the marriage, as distinct from the wedding, is a form of ‘sexual relations aimed at enforced procreation.’179 For the figure of the victim, this double movement in the legal representation is in constant operation and stands as a reminder that in the promise of law is always also a loss. The manifold victim representations that emerge from the translation of the Khmer Rouge marriages into ICL suggest the victim is constitutively multiple and multifaceted. In the Closing Order, the Khmer Rouge marriages are given multiple places. The victim moves along these places and appears in manifold figurations. The details in the legal definitions are for the figure of the victim detrimental for his/her figuration. The person who wed through a Khmer Rouge marriage figures as a victim in relation to rape, to ceremonies, to consummation, to (in)humanity and to policy. The victim always appears in relation; moving across and between legal categories, constantly shifting between the categories that determine its configuration. These movements are constitutional for the victim. In other contexts, feminists have argued that the way the female body slips metaphorically into the nation, through the emphasis on honour as the harm of rape, is at the detriment of the individual and a recognition of her suffering. To put it more succinctly, when the female body is taken to signify the nation, it erases the individual and her experience. This would mean that in the slippage from individual to collective, one is at the expense of the other. However, this is not necessarily what is going on here. Instead, I believe that the individual and collective are mutually constitutive. In arguing this, I take inspiration from the work by Dubravka Žarkov who, in the context of media representations of the body during the wars in Yugoslavia, argues that ‘the universal and particular . . . do not only oppose each other . . . [but] also constitute each other.’180 The victim, I suggest, is in this sense ambiguous: not just able to hold a duality but also ‘ambiguity: the capacity to be universal and particular at the same time.’181 It is in this vein that the slippage is part of the victim’s constitution. And therefore, the slippages are not necessarily tensions or contradictions, nor errors or failures, as there is nothing inherently problematic or harmful in being both an individual and (part of) a collective. While the ‘victim’, as a category, remains, its figuration shifts and changes depending on the characteristics of that to which it relates. The representation of the victim is tied to the category in which it appears, but it is nevertheless in constant movement. In this way, the victim becomes a plurality, a figure characterised by indeterminacy.

179 002 Closing Order [1445]. 180 Dubravka Žarkov, The Body of War: Media, Ethnicity and Gender in the Break-Up of Yugoslavia (Duke University Press, 2007) 12. 181 Ibid.

102  The Khmer Rouge marriages and the victims of crime Nevertheless, while indeterminate, the figure of the victim is still bound by the broader structure provided through the Closing Order. The Closing Order provides the reference points to which the victim figure relates. Notably, the Closing Order acts as a means of exclusions, it ‘seises’ the Trial Chamber,182 but only with that it ‘descri[bes] of the material facts and their legal characterisation . . . including the relevant criminal provisions and the nature of the criminal responsibility’.183 There are no other reference points available in and through law for the victim. What seems to be tendency by which the harm slips from social relation and status – wedding ceremony and married person – into bodily and sexual harm is in this way not only a constitutive relation but also bias.184 The structure provided through the Closing Order operates as a significant gatekeeper to legal representation. The argument on the indeterminacy of the victim also complicates the promises of law as representation. As argued in the introductory chapter, at the foundation of the promises of ICL – accountability, deterrence, recognition, truth, redress – lies the promise of representation. In the translation into law what may otherwise have been left as inexplicable suffering – the lack in our symbolic order that appears as trauma – is named and ordered, is signified. Yet, if the representation of the victim continually slips, it suggests that the signification can never be complete. The representation of victims keeps on slipping, shifting across practices. This argument of the plural and indeterminate victim figure also complicates the debate on forced marriage in international criminal justice (ICJ) more generally.185 In ICJ-scholarship, forced marriage often figures as the latest of gender-based crimes that are recognised by an international(ised) criminal court. By now, it has appeared at SCSL, the ECCC and most recently also at the ICC, where a Pre-Trial Chamber in 2016 confirmed that the charges against Dominic Ongwen include one of forced marriage.186 After the judgment at the SCSL, a number of writers187 argued that forced marriage needs to be conceptualised and criminalised as a distinct crime. In their arguments lie a call for a fuller, better representation, one that more completely reflects the experienced suffering and

182 The Trial Chamber shall be seised by an Indictment from the Co-Investigating Judges or the Pre-Trial Chamber. ECCC, Internal Rules (Rev 9) (adopted 16 January 2015) r 79(1). 183 ECCC, Internal Rules (Rev 9) (adopted 16 January 2015) r 67(2). 184 Koskenniemi, above n 21. 185 See, for example, Frulli, above n 172; Jain, above n 8; Carmel O’Sullivan, ‘Dying for the Bonds of Marriage: Forced Marriages as a Weapon of Genocide’ (2011) 22(2) Hastings Women’s Law Journal 271; Krista Stout, ‘What’s in a Name? The Feasibility and Desirability of Naming Forced Marriage as a Separate Crime Under International Humanitarian Law’ (2010) 19 Dalhousie Journal of Legal Studies 1; Bridgette A. Toy-Cronin, ‘What Is Forced Marriage? Towards a Definition of Forced Marriage as a Crime Against Humanity’ (2010) 19(2) Columbia Journal of Gender and Law 539. 186 Ongwen Decision on Confirmation of Charges. 187 Jain, above n 8; Amy Palmer, ‘An Evolutionary Analysis of Gender-Based War Crimes and the Continued Tolerance of “Forced Marriage”’ (2009) 7(1) Northwestern Journal of International Human Rights 133; Frulli, above n 172; Stout, above n 185.

The Khmer Rouge marriages and the victims of crime 103 one possible to achieve through ‘evolution.’188 Underlying this argument is a belief that the enumeration would provide a fuller representation of the harm experienced by the victims. My reading of the victim of the marriages in the ECCC Closing Order instead suggests that the representation of the victim will never be complete, even if the representation is in relation to gender-based crime. Perhaps law is as much of a promise as it is a form of seduction, making us believe that ‘new law or more law might be better than the old’.189 What the manifold representations of victims of the Khmer Rouge marriages in the Closing Order suggest is that legal representation provides ordering but not closure.

88 ‘Evolution’ is used by a number of authors. Also the amicus curiae. 1 189 Carol Smart, Feminism and the Power of Law (Routledge, 1989) 160.

4 Becoming participant Victim representations at trial

Introduction: entering the Trial Chamber The building complex within which the Extraordinary Chambers in the Courts of Cambodia (ECCC) Trial Chamber is situated lies on the outskirts of the Cambodian capital Phnom Penh. Immediately behind the complex is one of the many mass graves that are scattered across the country.1 While the location was not chosen for the proximity to the graves, they stand to remind the Court of all those who perished during the Khmer Rouge regime while providing a physical proximity to a place of victimisation and death. Today, many who experienced the Khmer Rouge regime come to the ECCC Trial Chamber to participate: some give testimony, some appear as civil parties and some attend the trial as spectators. On days of hearings, the courtroom is in this way made not only of the parties and the ECCC staff but also of Cambodians who attend the trial: villagers, city dwellers, monks, nuns and students. This chapter examines representations of victims through practices of participation in the ECCC trials.2 So far, the book has unfolded ways victims figure in and through the establishment of a court, and then addressed upon the Closing Order and the ways this pre-trial technology shapes victim representation. The present chapter proceeds from the constitution of a Court and the gatekeeper of the Closing Order to the Trial Chamber. Trials do many things. Trials bring people together and give them roles to perform in accordance with a script that is to some extent predetermined. The performative aspects of the trials means they have been compared to theatres

1 Interview with Youk Chhang, Director, Documentation Center of Cambodia (Phnom Penh, 5 July 2011). 2 At the time of writing, three trials have been concluded at the ECCC: The trial in the first Case No 001 against Kaing Guav Eak, alias Duch, was concluded in 2009. Case No 002 against the surviving leaders of the Khmer Rouge has been severed, i.e. split into several ‘mini-trials’. The first of these, called Case No 002/01, was concluded in 2014, and the closing hearings for the second, Case No 002/02, were held in June 2017.

Becoming participant 105 wherein past events are dramatised and roles are performed.3 Yet, trials are not only performances but also events where law and its authority are performatively constituted. Through the trial, law is enacted and constituted, and legal authority is both marked and (re-)established. Subjects are constituted through the trial in relation with the legal authority. Trials are operators of representation, in both senses of the word. During trials, victims are represented in the familiar sense that others speak on their behalf. Spokespersons for victims appear to speak and act on behalf of persons whose status as victims is (claimed to be) ontologically prior and established elsewhere. But victims are also performatively constituted.4 By citing the iterative practices of trials, persons give claims of victimhood, who are thereby constituted as victim subjects. In considering the participation of victims, it is necessary to keep in mind both these dimensions. In this chapter, I examine three participatory roles through which victims are represented during trial: the visitor, the civil party and the testifier. Recent years have experienced an explosion of literature under the rubric of victim participation,5 much of which focuses on the legal provisions for victim participation6 or the effects

3 On trials as theatre, see Milner S. Ball, ‘The Play’s the Thing: An Unscientific Reflection on Courts Under the Rubric of Theater’ (1975) 28(1) Stanford Law Review 81, 86; Michael Bachman, ‘Theatre and the Drama of Law: A “Theatrical History” of the Eichmann Trial’ (2010) 14 Law Text Culture 94; Victoria Brooks, ‘Interrupting the Courtroom Organism: Screaming Bodies, Material Affects and the Theatre of Cruelty’ (2014) Law, Culture and the Humanities 1, https://doi. org/10.1177/1743872114543767; Shoshana Felman, ‘Theaters of Justice: Arendt in Jerusalem, the Eichmann Trial, and the Redefinition of Legal Meaning in the Wake of the Holocaust’ (2001) 27(2) Critical Inquiry 201; Rachel Hughes, ‘Ordinary Theatre and Extraordinary Law at the Khmer Rouge Tribunal’ (2015) 33(4) Environment and Planning D: Society and Space 714; Martha Merrill Umphrey, ‘Law in Drag: Trials and Legal Performativity’ (2011) 21(2) Columbia Journal of Gender and Law 516, 517; Julie Stone Peters, ‘Legal Performance Good and Bad’ (2008) 4(2) Law, Culture and the Humanities 179. 4 See Chapter 1; Judith Butler, Gender Trouble: Feminism and the Subversion of Identity (Routledge, 2nd ed, 2007); Excitable Speech: A Politics of the Performance (Routledge, 1997); The Psychic Life of Power (Stanford University Press, 1997); Hanna Fenichel Pitkin, The Concept of Representation (University of California Press, 1967). 5 See Chapter 1. 6 For scholarship on victim participation in relation to the ECCC see, for example, Helen Jarvis, ‘“Justice for the Deceased”: Victims’ Participation in the Extraordinary Chambers in the Courts of Cambodia’ (2014) 8(2) Genocide Studies and Prevention: An International Journal 19; Yvonne McDermott, ‘Victims and International Law: Remedies in the Courtroom?’ (2009) 4(3) Hague Justice Journal 199; Brianne N. McGonigle, ‘Two for the Price of One: Attempts by the Extraordinary Chambers in the Courts of Cambodia to Combine Retributive and Restorative Justice Principles’ (2009) 22(1) Leiden Journal of International Law 127; Mahdev Mohan, ‘The Paradox of Victim-Centrism: Victim Participation at the Khmer Rouge Tribunal’ (2009) 9(5) International Criminal Law Review 733; Susana SáCouto, ‘Victim Participation at the International Criminal Court and the Extraordinary Chambers in the Courts of Cambodia: A Feminist Project?’ (2012) 18(2) Michigan Journal of Gender and Law 297; Mark E. Wojcik, ‘False Hope: The Rights of Victims Before International Criminal Tribunals’ (2010) 28 L’Observateur des Nations Unies 1.

106  Becoming participant of participation on individuals.7 In this chapter, I take a different approach. By paying attention to the way representation is both an activity conducted on behalf of someone and of subject formation, I examine the manner in which trials provide both a space and a mode of speech through which subjects appear as victims. A double reading of victim representation is called for in relation to Cambodia and the ECCC. A relatively recent population study found that 90 per cent of the population born before 1979, and just over half of those who were born since, consider themselves ‘victims’ of the Khmer Rouge regime.8 In a study on the representations of victims in international criminal justice (ICJ), and here in particular on trials, this large percentage of self-identified victims raises questions: How do criminal trials represent victims in a community where so many consider themselves victims? In what ways do the practices of trial engage with – reinforce or challenge – these self-identified victims? And how do the Court practices manage relations between victims on the ‘inside’ – within the judicial system – and those on the ‘outside’? The practices of representation are conditioned by the spaces9 and their materiality in which the practices take place, as well as by the formal rules and regulations of the place. This chapter takes both of these conditions seriously. First,

7 For scholarship on this topic dealing with the ECCC specifically see, for example, John D. Ciorciari and Anne Heindel, ‘Trauma in the Courtroom’ in Beth Van Schaack, Daryn Reicherter and Youk Chhang (eds), Cambodia’s Hidden Scars: Trauma Psychology in the Wake of the Khmer Rouge (Documentation Center of Cambodia, 2011); John D. Ciorciari and Anne Heindel, Hybrid Justice: The Extraordinary Chambers in the Courts of Cambodia (University of Michigan Press, 2014); Toni Holness and Jaya Ramji-Nogales, ‘Participation as Reparations: The ECCC and Healing in Cambodia’ in Beth Van Schaack, Daryn Reicherter and Youk Chhang (eds), Cambodia’s Hidden Scars: Trauma Psychology in the Wake of the Khmer Rouge (Documentation Center of Cambodia, 2011); Rudina Jasini and Victoria Phan, ‘Victim Participation at the Extraordinary Chambers in the Courts of Cambodia: Are Retributive and Restorative Principles Enhancing the Prospect for Justice?’ (2011) 24(3) Cambridge Review of International Affairs 379; Patrick Kroker, ‘Transitional Justice Policy in Practice: Victim Participation in the Khmer Rouge Tribunal’ (2010) 53 German Yearbook of International Law 753; Phuong Pham et al., ‘Victim Participation and the Trial of Duch at the Extraordinary Chambers in the Courts of Cambodia’ (2011) 3(3) Journal of Human Rights Practice 264; Eric Stover, Mychelle Balthazard and K. Alexa Koenig, ‘Confronting Duch: Civil Party Participation in Case 001 at the Extraordinary Chambers in the Courts of Cambodia’ (2011) 93(882) International Review of the Red Cross 503. 8 Phuong Pham et al., So We Will Never Forget: A Population-Based Survey on Attitudes about Social Reconstruction and the Extraordinary Chambers in the Courts of Cambodia (Human Rights Center, University of California, Berkeley, 2009) 2. 9 Generally on space, see Doreen Massey, For Space (Sage, 2005). On law and space see, for example, Matilda Arvidsson, ‘Embodying Law in the Garden: An Autoethnographic Account of an Office of Law’ (2013) 39(1) Australian Feminist Law Journal 21; Piyel Haldar, ‘In and Out of Court: On Topographies of Law and the Architecture of Court Buildings (A Study of the Supreme Court of the State of Israel)’ (1994) 7(20) International Journal for the Semiotics of Law 185; Alex Jeffrey and Michaelina Jakala, ‘The Hybrid Legal Geographies of a War Crimes Court’ (2014) 104(3) Annals of the Association of American Geographers 652; Andreas Philippopoulos-Mihalopoulos, ‘Law, Space, Bodies: The Emergence of Spatial Justice’ in Laurent de Sutter and Kyle McGee (eds), Deleuze and Law (Edinburgh University Press, 2012); Andreas Philippopoulos-Mihalopoulos, ‘Law’s Spatial Turn: Geography, Justice and a Certain Fear of Space’ (2011) 7(2) Law, Culture and the Humanities 187.

Becoming participant 107 trials are material sites in which the bodies that inhabit them interact with the particular settings – architecture – of the room. As with so many court buildings around the world,10 the ECCC compound was not built for this purpose but had a previous life with the military, operating as the High Command Headquarters of the Royal Cambodian Armed Force.11 Before the start of the first trial, a large auditorium was made into a trial chamber, consisting of a stage, enclosed by large windows and wooden panels, and an auditorium with 482 seats for the public. It is in this space that those who participate in the trials appear, conditioned and enabled by the setting.12 At the same time, the Court is made of the bodies that inhabit it:13 the judges whose presence exhumes authority, the parties who provide an ebb and flow of tensions, arguments, anticipation. As the ECCC is located in Cambodia, the trials are held in physical proximity, even in the presence, of some of those who suffered from the crimes adjudicated. In this way, the Trial Chamber is filled with and made of the bodies of those who were affected by the crimes adjudicated. Secondly, trials are legal events in which appearances and interactions are regulated by laws and rules. The participants I examine in this chapter are all legal persons, each regulated by internally made rules. They are ‘persons’, distinct from the living beings they also are.14 Nevertheless, the living being – the flesh, the human – remains present, at times challenging the confinement of the legal person. ‘Victims’ appear through mediations between the legal persons and the living beings, conditioned and enabled by both the spaces and by the legal rules. By paying attention to the way representation is both an activity of constitution and of relation between representative and represented, the possibilities and limits of the appearances of victims as participants in trial come into view. And so, in this chapter I trace the representations of victims during trials in relation to three roles: the visitor, the civil party and the testifier, each of which calls for a different kind of engagement with the conditions of its appearance. Thus, when unfolding the representation of victims in the visitor, I engage primarily with the question of embodiment in a particular space; when turning to the civil party, I turn to a reading of the legal texts and rules; and finally with the testifier, I combine the two readings of space and rules. With this, the stage is now set for examining the ECCC and its two trials that have been completed, and the ways in which victims are represented through trials. Let us approach the ECCC Trial Chamber.

10 Linda Mulcahy, Legal Architecture: Justice, Due Process and the Place of Law (Routledge, 2011) 24. 11 Sean Visoth, ‘Statement on the Handover of the Premises for the Extraordinary Chambers in the Courts of Cambodia’ (2006) (First Quarter) Searching for the Truth 31. 12 Massey, above n 9. 13 See, for example, Arvidsson, above n 9; Brooks, above n 3. 14 See Ernst H. Kantorowicz, The King’s Two Bodies: A Study in Medieval Political Theology (Princeton University Press, 1957). For an overview on the person, see Shaunnagh Dorsett and Shaun McVeigh, Jurisdiction (Routledge, 2012) chapter 5. See also Peter Goodrich, ‘The Theatre of Emblems: On the Optical Apparatus and the Investiture of Persons’ (2012) 8(1) Law, Culture and the Humanities 47; Connal Parsley, ‘The Mask and Agamben: The Transitional Juridical Technics of Legal Relation’ (2010) 14 Law Text Culture 12.

108  Becoming participant

The visitor Arriving at the ECCC compound are a number of buses charted by the Public Affairs Section (PAS) of the Court. Some days, the buses are filled with students who have travelled only from another part of Phnom Penh, other times, the buses have travelled a significant distant from another part of the country. If the latter, the passengers will have begun their journey long before the break of dawn. In the buses are men and women, young and old, villagers and urban dwellers, who have been invited to observe the hearings for a day or parts of a day. As the former passengers line up at the security check point where they are screened and registered, they become visitors to the Court. As they sit down inside the Chamber, in its slanting auditorium, any differences between them are subdued and they become a collective of spectators. As they bear witness to the event of law, they embody the judicial-legal process; embody the event of trial. Importantly, they here do so as a victimised community. In this section, I unpack the significance of the way visitors, when entering the courtroom, become spectators in the event of trial and the way many spectators appear as victims. The visitor victim By February 2015, more than 165,400 persons had visited the ECCC Trial Chamber. Of these, ‘almost all’ were registered as members of the Cambodian general public.15 These are high numbers for an institution of ICJ. The public gallery in the old building for the International Criminal Court (ICC) only held 75 seats,16 and although the new building inaugurated in 2016 holds a larger auditorium,17 the distance between the ICC and the communities affected by the crimes it adjudicates means that large amounts of people f`rom affected areas cannot be expected. And while the ECCC gallery often holds large groups or is periodically even full, there were during the first years of operation at the Special Court for Sierra Leone (SCSL) rarely more than 10–20 persons attending, and they were mostly court reporters and the families of the accused.18 Yet, in writings on the ECCC, these high numbers of visitors are often contrasted with a perceived lack of knowledge amongst the visitors. For example, John Ciorciari

15 David Scheffer, ‘What Has Been “Extraordinary” about International Justice in Cambodia?’ (Speech delivered at the William & Mary Law School Williamsburg, Virginia, US, 25 February 2015) 10, www.eccc.gov.kh/sites/default/files/media/ECCC_Scheffer_William_and_Mary_ Speech_25_Feb_2015.pdf. By June 2014, more than 150,000 persons had visited the ECCC Trial Chamber. Of these, roughly 145,000 were registered as ‘Cambodian general public’, 2,996 were registered as ‘international general public’ and 1,324 as ‘international media’. The ‘VIP’ category – with 457 registered – holds no distinction between national and international. See ECCC, Annex 2: PAS Outreach Figures 2009 – 2014 (30 June 2014), www.eccc.gov.kh/sites/ default/files/Outreach_stats_June_2014.pdf. 16 ICC, ‘Hearings’, www.icc-cpi.int/en_menus/icc/about%20the%20court/visiting%20the%20 court/Pages/hearings.aspx (historical site, July 2015). 17 On the new building, see ICC Permanent Premises, www.icc-permanentpremises.org. 18 Ciorciari and Heindel, Hybrid Justice, above n 7, 241, references to an HRW report.

Becoming participant 109 and Anne Heindel remark that although the number of spectators is ‘impressive’, they suggest that ‘the depth of understanding that many Cambodians have of the process is shallow.’19 In discussing the presence of the public in the trials, they refer to a ‘commonly heard criticism that the Court’s outreach is “only successful [in terms of] the quantity but not the quality”’.20 This description of the numbers of participants as something that is undermined by a lack of deep understanding resonates with the way scholarship on victim participation presents spectatorship. While being a visitor is not the same as being a spectator, when the visitor to the ECCC compound sits down inside the Chamber, s/he also becomes a spectator. And if spectatorship is at all included in the scholarship on trial participation, it is presented as a ‘lesser’ form.21 For example, writing about victim participation at the ECCC, Toni Holness and Jaya Ramji-Nogales argue spectatorship limits victims’ expressive capacities, and place it on a scale of participation as the ‘least interactive’ form.22 The way spectatorship is presented as an issue of quantity versus quality reflects a conviction that if visiting a court is to be meaningful, if the presence by an audience is to somehow make a difference, the details in the proceedings, including any legal arguments on any particular day, must also be comprehended by each individual present and who has been affected by the alleged crimes. This approach may be useful in some debates over the language of law, such as the plain-English movement, but I believe it misplaces the significance of the presence of visitors at trials, including at the ECCC. So before asking the question of the effect of visiting the Court and watching the proceedings, let me begin with the question of how the practice of visiting the Court represents the visitor as a participant. In other words, how does visiting the Court perform victim participation and how does the visitor come to embody the event of the trial? The space of the courtroom matters for the legal proceedings, as there is no such thing as a neutral space in which proceedings take place. Rather, the set-up of the court, its design, its architecture and its location are intrinsic parts of the constitution of the authority of the trial and, by extension, of law.23 By noting these spatial and architectural dimensions, the significance of the presence of the spectators comes into view. So, let us follow the visitor to the Court. Arriving at the ECCC compound, visitors queue to pass through a security checkpoint. There, they are screened and hand over mobile phones or other electronic equipment before entering an outdoor waiting area, filled with plastic chairs and tables. On days of hearings, the outdoor waiting area is often buzzing with people, and when the weather so requires, there are moist fans giving some respite 19 Ibid. 247. 20 Ibid. 241. On outreach, see Chapter 5 in this book. 21 It is, for example, not included in a mapping of roles played by the victim in the criminal trial process. See Edwards (2004) discussed in relation to the ICC by Jo-Anne Wemmers, ‘Victims’ Rights and the International Criminal Court: Perceptions within the Court Regarding the Victims’ Right to Participate’ (2010) 23(3) Leiden Journal of International Law 629, 632–3. 22 Holness and Ramji-Nogales, above n 7, 8–9. 23 Mulcahy, above n 10; Jeffrey and Jakala, above n 9.

110  Becoming participant from the heat. The area is a threshold between the courtroom and the outside world; an in-between space, neither inside the courtroom nor outside in the public.24 Here, not all Court etiquette must be followed – visitors speak, eat and rest – but as it is on the inside of the security checkpoint, they are subjected to the scrutiny of Court surveillance. The space provides for some relaxation and repose as well as a meeting point between victims, the public, court officials and journalists. After major developments inside the Trial Chamber, it is often here the media set up their cameras and microphones, directing the spotlight onto the public and victims. In this hinterland, conversations can take place. In domestic courts, spaces like these often serve as less rigid extensions of the courtroom where parties may meet for dialogue and compromise.25 However, these are extraordinary trials, a fact demonstrated also in the physical markers. Visitors are screened before entering the court compound and remain separated from the parties. During breaks, the accused persons are taken to their holding cells, the parties and the judiciary turn to designated areas in the ECCC compound, while the outdoor space with the plastic chairs is left for the general visitor. The constantly cool indoors of the courtroom provides a stark contrast to the changing Cambodian climate. Before the visitor enters the courtroom, s/he passes through another threshold in the form of a steep staircase. Once inside, a slanting auditorium with 482 seats opens up. This is the Public Gallery, shaped in a semi-circle as if embracing the stage on which the trial proceedings take place. The courtroom is split into two zones – an enclosed stage for the parties and an auditorium for the spectators – clearly separated by wooden panels and thick panorama glass. The separation is so distinct, so manifest, that it almost makes the courtroom appear as two distinct rooms. At the same time, the set-up makes comparisons to theatre almost superfluous; this is a stage, this is an audience.26 On the stage are the parties and the judges; in the auditorium are the spectators. The set-up provides for expectations. As the visitors sit down in the gallery, some of the lawyers get ready on stage. Eyes may meet as they all wait for the judges to arrive. And as the judges enter the stage, all rise, all attention is centred. The visitor’s presence in the auditorium is conditioned upon following Court decorum. Under no circumstance may the visitor express any concerns that may disturb or influence the proceedings. The Internal Regulations Governing the Courtroom on Hearing Days instructs the visitor on how to behave: visitors, who notably are here referred to as ‘participants’, are told to ‘maintain dignity and proper

24 As Mulcahy explains, ‘The notion of the threshold of the court occupies a special place in the history of legal architecture where the outside and inside can not properly be seen as separate realms but part of a dynamic interplay of barriers and passages. This boundary between inside and outside often assumes an importance of its own and creates a hinterland between open space and manmade construction’: Mulcahy, above n 10, 22 (citations omitted). 25 Leif Dahlberg, ‘Emotional Tropes in the Courtroom: On Representation of Affect and Emotion in Legal Court Proceedings’ (2009) 3(2) Law and Humanities 175, 196. 26 On the aspect of projection within courts and cinema, see Peter Rush and Maria Elander, ‘Working through the Cinematography of International Criminal Justice: Procedures of Law and Images of Atrocity’ London Review of International Law (forthcoming).

Becoming participant 111 behaviour in the courtroom at all times.’27 This includes wearing ‘appropriate’ clothes. While school uniforms are allowed, as are the religious attires that set apart Muslim Cham and Buddhist monks and nuns, clothing may not depict slogans or messages that in any way are offensive or demonstrate support for a party to the proceedings.28 In this manner, visitors to Case 001 who wore T-shirts simply saying ‘Case 002’ were reprimanded.29 Present in the courtroom are security guards who ensure that visitors do not ‘chang[e] seats or walk[] freely inside the courtroom’30 and that they ask for permission to enter or exit the room.31 During the proceedings, the guards also make sure that spectators at least appear to listen attentively to the proceedings, something that necessarily includes staying awake. For the visitor whose journey began long before dawn, the long proceedings may become monotonous, even somnolent, but like the guards reprimand those who do not sit properly, they also make sure to wake any slumbering spectator.32 Sitting in the auditorium, the visitor becomes a spectator. From the Public Gallery, the spectator watches the proceedings on the stage, either directly on the other side of the glass wall or via large TV screens mounted on the wooden panels. On the right side33 of the stage, from the perspective of the spectator, are the defendants and their lawyers, and on the left side are the prosecutors and the civil party lawyers. Behind the civil party lawyers are a few chairs where a few selected civil parties sit for a day, or parts of a day, to observe the proceedings.34 At the far back of the stage, facing the public, are the seven judges (two of whom are reserve judges), seated with greffiers below. Their elevated position visually marks their status of authority as those who oversee the proceedings.35 The positioning matters. As Linda Mulcahy has argued, the particular placing of each participant in the Chamber, whether their seat is elevated or lowered, behind a wall or in the open, ‘has the potential to create insiders and outsiders; empowered and disempowered participants’.36 The set-up

27 ECCC, Internal Regulations Governing the Courtroom on Hearing Days (Supreme Court Chamber) (23 March 2011) reg 3 (‘ECCC Internal Regulations Governing the Courtroom’). 28 Ibid. 29 Dacil Keo and Outreach Team, ‘A Tribunal for the Victims’ (2010) (Third Quarter) Searching for the Truth 40. 30 ECCC Internal Regulations Governing the Courtroom reg 8. 31 Ibid. reg 10. 32 In the early days, the guards would use a long stick to poke the visitor but this is no longer the practice. Field notes 28 June 2011. 33 This description relates to the trials of Case Nos 002/01 and 002/02, and not to Case No 001 for which the set-up was slightly different as there was only one accused. 34 Interview with Im Sophea, ECCC Outreach Coordinator Victims Support Section (Phnom Pehn, 14 July 2011). During the first trial, 10 seats were here allocated for civil parties. Michelle Staggs Kelsall et al., Lessons Learned from the ‘Duch’ Trial: A Comprehensive Review of the First Case Before the Extraordinary Chambers in the Courts of Cambodia (December 2009) Asian International Justice Initiative, East-West Centre 31, www.eastwestcenter.org/sites/default/files/filemanager/ Research_Program/Kelsall%20et%20al%202009.pdf. 35 Mulcahy, above n 10, 21. 36 Ibid. 1.

112  Becoming participant of the Court both reveals and constitutes the authority and the power dynamics that are in play during the proceedings. Thus, the elevated bench does not only mark the authority of the judges and of the law, but also constitutes, enacts it. The structure of the room is impressive with dark panels that mark solemnity and seriousness, or perhaps it intimidates. Some commentators37 have argued that the Court’s structure and the advanced technology intimidate ordinary Cambodians, many of whom lack electricity in their homes. In these readings, the marks of authority alienate and distance, reinforce discrepancies between rich and poor, the powerful and the less powerful. Along the same line of reasoning, there have been complaints that the physical split between the parties on a stage and spectators in an auditorium reinforces already existing barriers in an already stratified and hierarchical society. The Director of the non-governmental organisation (NGO) Documentation Center of Cambodia (DC Cam), Youk Chhang, has argued that it ‘blocks the connection between people’.38 Dacil Keo and the DC Cam Outreach Team similarly argue that the glass wall is a barrier that ‘separates well-paid and well-dressed lawyers and judges, who sit above a raised platform, from victims of the Khmer Rouge regime, who predominantly are poor and dressed in simple clothing.’ For them, this is problematic in Cambodia where ‘relative status and honor between individuals can be inferred simply by who sits higher than whom.’39 Yet, this physical segregation between the stage and the audience – the parties and the public – is not specific to the ECCC or to Cambodia as the spaces accorded to the public are often characterised by segregation and segmentation.40 The number of visitors at the ECCC may be extraordinary, but the restrictions placed on them are not. The role accorded to the visitor is confined to that of spectator, something which is further reinforced by the positioning of those who provide testimony during trial. On the stage are two smaller wooden docks, one for witnesses and civil parties and the other for the accused when they give testimony. These are placed opposite the judges so that the person giving testimony is face-to-face with the judges and has his/her back to the Public Gallery. While the usage of two docks – one for the accused when giving testimony and one for all others who testify – is a feature also in Cambodian courts, the positioning face-to-face with the judges is, according to Youk Chhang, ‘the Western way – it’s not our culture.’41 The positioning is then potentially a reminder of the international features of the Court, that despite its location in Cambodia and the presence of so many Cambodians, this is also an internationalised space. In his writings on the

37 Holness and Ramji-Nogales, above n 7, 5–6; John D. Ciorciari and Jaya Ramji-Nogales, ‘Lessons from the Cambodian Experience with Truth and Reconciliation’ (2013) 19 Buffalo Human Rights Law Review 193. 38 Youk Chhang quoted in ‘Architecture of Justice: Sketches of a Historic Day’, Phnom Penh Post (online), 9 August 2014, http://phnompenhpost.com/post-weekend/architecture-justicesketches-historic-day. 39 Keo, above n 29. 40 Mulcahy, above n 10, 83. 41 Chhang, above n 38.

Becoming participant 113 significance of public trials, Jeremy Bentham argued that one of the reasons the public needed to be present during trials was to pressure witnesses to tell the truth.42 In direct contrast, the wooden docks at the ECCC are positioned so that the public cannot distract the person giving testimony.43 Instead, the visitor observes the person testifying either from his/her back, or via one of the screens positioned on the wooden panel that films whoever is speaking. The visitor at the ECCC is not present to put pressure on the testifiers. The emphasis on the visitor’s appearance as spectator is not to suggest that their presence goes unnoticed or is considered insignificant, even by those on the stage. The accused in Case 001, Duch, frequently acknowledged, even communicated with, visitors in the Public Gallery. Anthropologist Alexander Laban Hinton describes44 how Duch would during his trial frequently greet visitors, including those who had been imprisoned at S-21. At one point, a number of civil parties decided to through their lawyer write a petition to have him cease ‘making gestures’ as this ‘might be interpreted as seeking their forgiveness or sympathy.’45 Duch ceased to greet the visitors but continued to occasionally walk over to the glass wall during breaks to exchange written messages with visitors, exchanging greetings and smiles.46 While less directly, also the defendants in the second case have communicated with the visitors. For example, when giving statements, defendant Khieu Samphan begins by greeting ‘everyone in the courtroom’, and ‘salutes’ the monks in the Public Gallery.47 Nevertheless, the defendants in the trials are not always present during the hearings. Whereas Duch was a keen and vigorous participant in his own trial, to the point where his voice seemed to dominate the first part of the proceedings,48 the former leaders who are the defendants in Case 002 are aging, visibly struggling to bring their physically frail bodies to their trial. Foreseeing the difficulties of a trial against octogenarians, holding cells were built below the Chamber, containing a bed and AV equipment so that the accused may continue to follow

42 Jeremy Bentham saw this as a reason for allowing the public to be present in trials: Bentham (1827) referenced and discussed in Anthony Duff et al. (eds), The Trial on Trial: Towards a Normative Theory of the Criminal Trial (Hart, 2007) vol. 3, 263–4. 43 ‘Architecture of Justice’, above n 38. 44 Alexander Laban Hinton, Man or Monster? The Trial of a Khmer Rouge Torturer (Duke University Press, 2016). 45 Ibid. 64. 46 Ibid. 196. 47 Transcript of Initial Hearing, Prosecutor v Nuon Chea, Khieu Samphan, Ieng Sary, Ieng Thirith (ECCC, Trial Chamber, Case No 002, 30 June 2011) 23 (‘Case 002 Initial Hearing Transcripts’); Transcript of Closing Hearing, Prosecutor v Nuon Chea, Khieu Samphan (ECCC, Trial Chamber, Case No 002/02, 23 June 2017) 33. Also see generally transcripts from the days of victim impact statements in Cases Nos 002/01 and 002/02. 48 Hinton, above n 44, 181. However, Duch rarely addressed the persons in the gallery during his testimonies. At one point, he made a comment about the presence in the Public Gallery of the daughter of a civil party who had given testimony, but this was a rare moment. In his many statements, including his apologies, Duch addressed ‘Mr President’, ‘Your Honor’ or the person whose testimony he was replying to. Transcript of Proceedings, Prosecutor v Kaing (ECCC, Trial Chamber, Case No 001, 17 August 2009) (‘Duch Trial Transcripts’).

114  Becoming participant the proceedings while resting. Often, the presence of the accused in the long second trial against the former leaders is only through representation by their lawyers. Yet, their presence has been placed in relation to the presence of spectators. During the early stages of the case, the judges were reluctant to accept any physical absence. When defence lawyers questioned the necessity of the aging accused to be present in the courtroom, the lawyers representing the civil party victims objected. In the discussion that followed, international Civil Party Lead Co-Lawyer (henceforth lead co-lawyer) Elisabeth Simonneau Fort argued that it was important for the victims who had come to the Court to see the accused; that the victims’ ability to see the accused persons is ‘a matter of respect for victims and civil parties.’49 In her account, the presence of the defendants stood in direct relation to the presence of visitors, positioning the visitor as both victim and spectator. To visit the Court was not to be limited to hearing a representation of legal facts, but also to see the accused. Although the defendants are now not always present, there is an understanding that presence matters, being there to see and be seen matters. What is significant about the presence of the people in the Public Gallery is the way they, as they enter the Court, not only go from being visitors to spectators, but by sitting together in the auditorium, also become a collective. In the auditorium, the spectators are together. In accordance with the Court decorum, there is nothing to mark the individual in relation to how s/he acted during the regime: labourers may sit with Khmer Rouge cadres, a person who survived a re-education may sit with a former ‘educator’. The auditorium does impose a stratum in which Buddhist monks and nuns are seated in the front row, and, unless considered VIPs, foreign visitors are relegated to the back row so to not be too visible in court images. This hierarchy, however, is not in relation to experiences or identities during Democratic Kampuchea (DK), and other societal hierarchies that exist outside the courtroom are in the Public Gallery suspended. In this way, the spectators become a collective that observes the trial. It is as a collective that the persons in the Public Gallery bear witness to the event of law. Having become a collective, having been confined to spectators, they now become witnesses to the event of law. Furthermore, by bearing witness to the event of law they here embody the international judicial-legal process. Sitting, together, through the proceedings, listening to testimonies and to the legal arguments, they become ‘party to the creation of knowledge de novo.’ 50 As Dori Laub writes in the context of listening to accounts of trauma, an act of testimony includes a ‘hearer,’51 a person who by listening to the narration bears witness to what is said and becomes part of the act of narration. In this way, the spectator listening to the proceedings becomes part of the process 49 Case 002 Initial Hearing Transcripts, 27 June 2011, 78. 50 Dori Laub, ‘Bearing Witness, or the Vicissitudes of Listening’ in Dori Laub and Shoshana Felman (eds), Testimony: Crises of Witnessing in Literature, Psychoanalysis and History (Routledge, 1992) 57. 51 Ibid.

Becoming participant 115 and embodies the event of trial. As suggested, the Chamber with its elevated positioning of the judges and its impressive wooden panels does not only mark authority but also makes it – enacts it. It may perfectly well be that for some, this appears rather intimidating. Yet, at the same time, even when intimidating, the structures and the solemn authority of the place can perform as objects of desire, interpellating the spectators in a community-building endeavour: we are the powerful that put the defendants on trial. In this impressive chamber to which you are welcome, in which you are cherished, we are together holding those responsible to account and making sure that the law has its course. It is in this moment that visitors who have become the community of spectators also become a victim community. As already noted, when sitting together as spectators, there is nothing to say how the individual acted during the DK regime. By itself, this would simply suggest a non-relation to the identity of victims. But even before they arrive at the Court, even before they become visitors, they are called by the Court as affected by the crimes adjudicated. Consider again the population-based survey in which 90 per cent of those who lived through the DK period and just over half of those who have since been born consider themselves ‘victims’.52 This self-identity is also reinforced by the ECCC. Again and again, the ECCC reaches out to the community, saying ‘we all suffered’, we are all victims. In the Introduction booklet on the ECCC, widely distributed at the Court and elsewhere, Prime Minister Hun Sen explains: Not a single one of our people has been spared from the ravages brought upon our country during . . . the regime known as Democratic Kampuchea. During that time, over three million of our people lost their lives. They were our parents, our children, our relatives, our colleagues and our friends. Those of us who survived have lived for a quarter of a century bearing pain and grief for those we lost and being haunted by the nightmare of our own experiences.53 As ‘we’ all suffered, ‘we’ are now putting those responsible on trial. And since ‘we’ all suffered, all of us are victims. As only senior leaders and those most responsible may face trial at the ECCC, the ECCC has in outreach made it clear that everyone else who suffered may apply to become a civil party – in other words, may be considered a victim. This message was made explicit in early and deliberate attempts to reach out to former Khmer Rouge strongholds,54 and according to

52 Pham et al., above n 8, 2. 53 Hun Sen, ‘Preface’ in An Introduction to the Khmer Rouge Trials (Public Affairs Section, ECCC, 4th ed). 54 I will return to this call to the public as victims in Chapter 5. Also see Maria Elander, ‘Education and Photography at Tuol Sleng Genocide Museum’ in Peter D. Rush and Olivera Simić (eds), The Arts of Transitional Justice: Culture, Activism and Memory after Atrocity (Springer, 2014) 43; Peter Manning, ‘Governing Memory: Justice, Reconciliation and Outreach at the Extraordinary Chambers in the Courts of Cambodia’ (2012) 5(2) Memory Studies 165.

116  Becoming participant Julie Bernath, around 10 per cent of all civil parties (more on which shortly) are former lower-level Khmer Rouge cadres.55 And so, arriving at the ECCC compound is a visitor who has already heard how ‘we’ all suffered during the regime. This suggests that it is the victim – an iteration thereof – that embodies the visitor. As the visitors sit down in the auditorium, differences amongst them are repressed. And as the spectators observe the proceedings, they bear witness to the event of the law, embodying the judicial process. Some, but far from all of those who visit the Court are also civil parties, formal participants in not just the trial but a case. As seen above, the visitor is never simply a visitor but its participation manifold. As my narrative has unfolded, the visitor moves through various images of participation, from visitor to spectator and from spectator to victim – recursively, the Court calls the victim. The visitor constitutively embodies plural roles, all of which are held in relation to the status of victim. And so, if in the tripartite relation between visitor, victim and trial the question of representation is primarily one of embodiment and constitution, in the representation of the civil party the question is mainly one of the relation between a representative and a represented. Here, the victim becomes a civil party and to this I now turn.

The civil party In an early pre-trial hearing,56 Theary Seng requested to speak before the Court. She did so as a civil party, someone who has suffered from a crime allegedly committed by the defendant and who has therefore applied to participate in the case. She said she wanted to give voice to all victims, slipping in her narration between the personal ‘I’ and the impersonal ‘victims’, and speaking both on private experience – ‘the graves were my playground’ – and addressing fellow victims – ‘This is your court. Participate.’57 As it happens, this would come to be the only time a civil party addressed the Court in person, other than when giving testimony. Theary Seng’s speech illustrates the two spokespersons of civil parties. At times, civil parties appear as representatives for the broader community. In her speech, she presented an urge to represent herself and fellow victims, to act as a spokesperson. Yet, shortly after her speech, the Pre-Trial Chamber decided

55 Julie Bernath, ‘“Complex Political Victims” in the Aftermath of Mass Atrocity: Reflections on the Khmer Rouge Tribunal in Cambodia’ (2016) 10(1) International Journal of Transitional Justice 46, 54. 56 Prosecutor v Nuon (Decision on Appeal of Provisional Detention Order) (ECCC, Pre-Trial Chamber, Case No 002, 8 February 2008). 57 Theary Seng, Statement of Civil Party Theary Seng to Pre-Trial Chamber: Nuon Chea’s Appeal of Provisional Detention, 8 February 2008, http://thearyseng.com/images/VoiceOfJustice/ vojstatementcivilpartythearysengmar08.jpg.

Becoming participant 117 that ‘only lawyers for civil parties have the right to make brief observations.’58 Henceforth, during the trial, civil parties may only speak through spokespersons, that is, their lawyers.59 The civil party system at the ECCC is sui generis. In some civil law systems, such as that of France, civil parties are persons who were victimised by the crime allegedly committed by the accused and who are formal parties to the case, holders of particular rights and duties who may participate alongside the prosecution and the defence.60 This differs from the status accorded victims in many common law jurisdictions, where there is no formal role for victims as victims in the proceedings apart from an opportunity to present so-called impact statements, something that usually occurs at the sentencing stage. The civil party system also differs from the way victims may participate at the ICC. There, a victim may present ‘its views and concerns’, but this does not make the person a party to the case.61 At the ECCC, the civil party system provides more extensive participatory rights than at the ICC and in common law jurisdiction, but is not a mirror of that in France. Moreover, the civil party status has in the short time span of the ECCC gone through extensive changes. Writings about civil party participation at the ECCC often emphasise its ad hoc nature and the way it has progressed by way of learning by doing. This is a reflection of the contested nature of the authority at the ECCC. The civil party system is not founded in the ECCC Law or Agreement. Indeed, there is no mentioning of ‘civil parties’ in any of the founding documents, and the only mention of ‘victims’ is alongside the accused and co-prosecutors (CPs) as subjects able to appeal decisions by lower chambers to the Supreme Chamber.62 During the negotiations for the establishment of the Court, victim participation or the civil party status were never discussed.63 Given that the ECCC was conceived of as

58 Prosecutor v Nuon Chea et al. (Written Version of Oral Decision of 1 July 2008 on the Civil Party’s Request to Address the Court in Person) (ECCC, Pre-Trial Chamber, Case No 002, 3 July 2008). 59 As per ECCC, Internal Rules (Rev 9) (adopted 16 January 2015) (‘ECCC Internal Rules’) art 23(3). 60 See, for example, Jonathan Doak, Victims’ Rights, Human Rights and Criminal Justice: Reconceiving the Role of Third Parties (Hart, 2008) 272–4. 61 Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 90 (entered into force 1 July 2002) (‘Rome Statute’); Håkan Friman, ‘The International Criminal Court and Participation of Victims: A Third Party to the Proceedings?’ (2009) 22(3) Leiden Journal of International Law 485. 62 Law on the Establishment of Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed During the Period of Democratic Kampuchea, as Amended by the Law to Amend the 2001 Law on the Establishment of the Extraordinary Chambers (NS/RKM/1004/006) (Unofficial translation by the Council of Jurists and the Secretariat of the Task Force, revised 26 August 2007) art 36 new (‘ECCC Law’): ‘The Extraordinary Chamber of the Supreme Court shall decide appeals made by the accused, the victims, or the Co-Prosecutors against the decision of the Extraordinary Chamber of the trial court. In this case, the Supreme Court Chamber shall make final decisions on both issues of law and fact, and shall not return the case to the Extraordinary Chamber of the trial court.’ 63 Interview with Helen Jarvis, member of the Cambodian Task Force (Phnom Penh, 13 July 2011).

118  Becoming participant an institution functioning within the Cambodian justice system, the Court was envisioned to fall in part under the Cambodian Criminal Procedure Code, with its own Internal Rules only as supplementary.64 And as the Cambodian system holds a feature of civil parties – an inheritance from the French civil procedure – the Cambodian negotiators simply assumed victims would be able to participate as civil parties.65 Meanwhile, during the negotiations, the United Nations (UN) counterparts and the American facilitator simply assumed otherwise.66 Yet, on the basis of the reference to ‘victims’ in the ECCC law on appeals,67 the judges responsible for drafting the Internal Rules established a system of civil party participation.68 An examination of the civil party system requires a close reading of written texts, in particular the Internal Rules and its amendments. In and through these documents, the civil party system provides for relations of representation. To unpack these relations, I explore questions of speech and spokesperson, and the way the location of authority shifts from something the civil party is granted and then given, to something more complicated. The status of the civil party shifts from individual to collective, and the role of spokesperson is in question. All of this complicates their modes of participation. Formalising victim status The act of naming someone a ‘civil party’ is an act of authorisation that enables the person to participate formally as victim. With the naming comes a formal relation between the ECCC and the victim survivor.69 Over the years, these forms and relations have changed significantly. When the Court began to operate, very little was known and decided on regarding the civil parties. Under the original Internal Rules from 2007, in 64 ‘The procedure shall be in accordance with Cambodian law. Where Cambodian law does not deal with a particular matter, or where there is uncertainty regarding the interpretation or application of a relevant rule of Cambodian law, or where there is a question regarding the consistency of such a rule with international standards, guidance may also be sought in procedural rules established at the international level’: Agreement Between the United Nations and the Royal Government of Cambodia Concerning the Prosecution Under Cambodian Law of Crimes Committed During the Period of Democratic Kampuchea, signed 6 June 2003, 2329 UNTS 117 (entered into force 29 April 2005) [12] (‘ECCC Agreement’). 65 Interview with Helen Jarvis (Phnom Penh, 13 July 2011). 66 Compare with David Scheffer, The Extraordinary Chambers in the Courts of Cambodia (2008) Cambodia Tribunal Monitor 17–18, www.cambodiatribunal.org/sites/default/files/resources/ Cambodia_Scheffer_Abridged_Chapter_July_2007.pdf. 67 ECCC Law art 36 new. 68 According to Ciorciari and Heindel, it was the French Co-investigating Judge Marcel Lemonde who together with one of his legal advisers ‘pressed for the adoption’ of the civil party system: Ciorciari and Heindel, above n 7, 205. In a forthcoming publication, Christoph Sperfeldt paints a somewhat more complicated picture of the way the Internal Rules were devised. 69 At the ECCC, victim survivors can participate by being accepted in one of two roles: either as a complainant, by which the person signals his/her availability to testify, or as civil party, by which the victim achieves a status as victim participant. But as a complainant is not necessarily a person claiming victimhood, I focus in this section on the civil party as this is an authorisation of appearance as victim.

Becoming participant 119 order for an individual to be admitted as a civil party, s/he must have suffered a ‘physical, material or psychological’ ‘injury’ that was ‘the direct consequence of the offence, personal and have actually come into being’.70 Apart from the offence ‘coming within the jurisdiction of the court’, little else was specified. Hence, when the Court and civil society organisations started informing the public of the possibility of participation, very little was known both about how victims might be able to be involved or who would qualify as civil parties. NGOs were crucial in the facilitation of civil party participation.71 The application forms for becoming a civil party were complex and many applicants required assistance in their completion. As Christoph Sperfeldt details, intermediary NGOs conducted long interviews, often over several visits to the communities, to assist in the process.72 In the end, 82 per cent of civil party applicants for Case 002 were filed with the assistance of intermediaries, more than half by the NGO ADHOC.73 Even as these applications were prepared and submitted, much remained unknown. Take Case 002 for example. Although the former leaders who were later charged were arrested already in 2007, it was not until two years later that information about the scope of the investigation was released. In other words, during two years, NGOs informed communities about the ECCC and about ways of participating as civil parties and complainants, without anyone holding knowledge on the scope of the case.74 In Case 001 against Duch, the civil parties were assessed and admitted as individuals. When the trial began, 93 persons sought to participate as civil parties, a number slightly reduced to 90 persons who throughout the trial acted as civil parties. Many of these were closely involved in the proceedings, coming to the Court for the hearings, some also giving testimony. However, it was not until the judgment that a decision on civil party admissibility was made. The Rules stipulated that a decision on inadmissibility would be made by the coinvestigating judges (CIJs),75 i.e. at the end of the investigation, but were silent with respect to admissibility, perhaps under the assumption that it is only with a finding of the accused person’s responsibility for the alleged crimes that a decision of personal injury can be made. In the Trial Chamber Judgment, only 64 persons

70 ECCC, Internal Rules (adopted 12 June 2007) r 23(2). 71 Also see Chapter 5. Some NGOs have had long experience in working with victims, survivors and perpetrators of the Khmer Rouge. DC Cam had obtained the archives from the so-called Ranaksa petitions from the 1980s, in which victims had urged the UN to recognise the PRK and the crimes of Pol Pot. DC Cam tracked down many of the signatories and asked if they wanted to apply to become a civil party. See, for example, Ly Sok-Kheang, The Cambodian Resilience (DC Cam Publication, 5 Dec 2011). 72 Christoph Sperfeldt, ‘Cambodian Civil Society and the Khmer Rouge Tribunal’ (2012) 6(1) International Journal of Transitional Justice 149, 153. 73 Prosecutors v Nuon Chea et al. (Closing Order) (ECCC, Trial Chamber, Case No 002, 15 September 2010) [11] (‘002 Closing Order’). 74 Marie Guiraud, Victims’ Rights Before the Extraordinary Chambers in the Courts of Cambodia (ECCC): A Mixed Record for Civil Parties (5 December 2012) International Federation for Human Rights 24, www.fidh.org/IMG/pdf/eccc_victrights_rep_nov2012_en_web.pdf (‘FIDH Report’). 75 ECCC, Internal Rules (adopted 12 June 2007) r 23(3).

120  Becoming participant were granted civil party status,76 a number that was raised to 76 in the Supreme Court Judgment.77 This discrepancy between the 90 who had participated as if civil parties and the 76 whose status was recognised has been criticised by monitors and academics, not least for the distress it caused some of those rejected.78 Nevertheless, the decision on civil party status in the Duch trial was made on the basis of an individualised approach to civil party admissibility where each applicant is closely assessed. In the judgments, each person was scrutinised, their claims assessed as to whether their injury was a direct consequence of an offence for which Duch was convicted: Was the security centre at which the person was held actually S-21 or was it one of the many other security centres in DK?79 Was the bond between the applicant and the person killed at S-21 sufficiently direct?80 The civil party here was an individual, having suffered ‘personal’ injury as a direct consequence of a crime for which the accused was found responsible. With Case 002, the civil party shifted from being an individual to a collective. With its nationwide scope, Case 002 had the potential of having thousands of civil parties. Hence, before the investigation was completed, the Internal Rules were amended, both in terms of procedure – when decisions on admissibility were to be made – and status – who can be a civil party. Hereinafter, a decision on civil party status is made by the CIJs at the end of the investigation and before the start of the trial on the basis that claimed facts of victimisation are ‘more likely than not to be true’.81 The amendments put into question the relationship between the civil party applicant, the material facts, the alleged crime and the accused. In August and September 2010, the CIJs issued 25 separate orders on admissibility for the almost 4,000 civil party applicants. Only some 50 per cent were accepted, and most of those who were rejected were so on the basis that they lacked a sufficient link to the accused. Notably, the CIJs held that only persons who had suffered injury as a direct cause of the material facts submitted in the CPs’ Introductory and Supplementary Submissions met the criteria of civil party.82 This tied the status of civil party to the facts submitted in support of alleged crimes rather than the alleged crime per se. Although the accused persons were in leadership positions during DK, they are not tried for ‘everything’ that occurred during the regime. Furthermore, an accused person can only be tried for facts that have been

76 Prosecutor v Duch (Judgement) (ECCC, Trial Chamber, Case No 001, 26 July 2010) [645], [650] (‘Duch Trial Judgment’). 77 Prosecutor v Duch (Appeal Judgement) (ECCC, Supreme Court Chamber, Case No 001, 3 February 2012) [535]–[629] (‘Duch Appeal Judgment’). 78 Stover, Balthazard and Koenig, above n 7, 35–6. 79 See, for example, applicants E2/61 and E2/32 in Duch Trial Judgment [647] and Duch Appeal Judgment. 80 See, for example, applicants E2/64, E2/86 and E2/88 in Duch Trial Judgment [649] and Duch Appeal Judgment. 81 ECCC, Internal Rules (Rev 5) (adopted 5 February 2010) r 23 bis; r 23 bis 1.b. 82 See Prosecutor v Nuon Chea et al (Decision on Appeals against Orders of the Co-investigating Judges on the Admissibility of Civil Party Applications) (ECCC, Pre-Trial Chamber, Case No 002, 24 June 2011) (‘PTC Decision on CP Appeals’). See also Guiraud, above n 74, 27.

Becoming participant 121 submitted so that s/he knows the claims and can prepare a defence in its relation. At the same time, tying civil party status to facts places great weight on the material places and facts chosen by the CPs. The international CP has explained that faced with ‘tens of thousands of criminal episodes’, he and his national colleague decided early on to make the cases manageable by only addressing a ‘representative sample’ of the criminal acts.83 This means then that only a ‘representative sample’ of victims would also be able to become civil parties, that is, only those who had suffered from acts committed in the ‘right’ places.84 The CIJs’ decisions thus reflects an individualised understanding of the civil party, requiring a direct link between the individual (suffering of the) civil party and the accused person through the facts of an offence. However, this individualised approach to civil party status was soon reversed. Many of those who were rejected appealed, and in June 2011 the Pre-Trial Chamber85 (Judge Marchi-Uhel partially dissenting86) held 98 per cent of the appellants admissible as civil parties. The reasoning of the majority was twofold: first, in contrast to the CIJ, they held that the relevant issue was not the material facts, but the crimes allegedly committed by the accused.87 This accepted civil party status for all who had suffered a particular crime and not just those whose injury appeared in the material facts, that is, those whose injury had occurred in the geographical location on which the prosecution builds its case. Important for the Pre-Trial Chamber here was that some of the charges against the accused persons concerned alleged crimes ‘throughout the country’.88 Second, the majority of the Pre-Trial Chamber took an approach to the victim figure that was explicitly collective. According to the Chamber, the very nature of the societal and cultural context at the time when the alleged crimes occurred requires another and wider consideration of the matter of victimization. This is particularly so . . . [for] policies that affected whole groups and communities, even the whole Cambodian society.89 The Pre-Trial Chamber found that since societal and cultural contexts differ, any determination of the strength of a relation and thereby injury must be approached on the assumption of collectivity. Accordingly, the Chamber

83 ‘On international criminal justice: interview with Andrew Cayley’ on Global Brief (9 September 2011), http://globalbrief.ca/blog/2011/09/09/on-international-criminal-justice. Cayley was International Co-Prosecutor from 2009 to 2013. 84 On the consequences of this on individuals who were applying for civil party status as members of the Vietnamese minority allegedly targeted by genocide, see Lyma Nguyen and Christoph Sperfeldt, ‘Victim Participation and Minorities in Internationalised Criminal Trials: Ethnic Vietnamese Civil Parties at the Extraordinary Chambers in the Courts of Cambodia’ (2014) 14 Macquarie Law Journal 97. 85 PTC Decision on CP Appeals. 86 Ibid Appendix (‘Separate and partially dissenting opinion of Judge Catherine Marchi-Uhel’). 87 Ibid. [41]–[43]. 88 Ibid. [42]. 89 Ibid. [86] (emphasis in original).

122  Becoming participant decided to ‘apply a presumption of collective injury in its assessment.’90 By basing the assessment on the occurrence of alleged crime rather than fact, and by assuming a collective injury, the civil parties – now 3,866 persons – also became a collective. The details of a person’s suffering and its potential ties to the accused person became less significant than the victimisation of the collective through the alleged crimes. In this way, the civil party has shifted from an individual to a collective. Whereas civil parties at early stages were considered individual participants whose link to the accused, his crimes and the facts on which he was tried was closely scrutinised, they now appear as a collective, held together by their collective victimisation of the crimes. While the civil party status provides for an immediacy in the relation between the individual human who suffered and the institution of the ECCC, the relation is as a collective. The question then becomes, how does this collective speak? Authorised appearance The civil party speaks, but, except if called to testify,91 s/he only speaks through a representative, a spokesperson. In becoming a civil party participant, the authority to speak is both granted and given away. Civil parties participate in various ways, beginning already at the investigation stage. Although victims cannot through their civil party application launch an investigation, which is the case in the Cambodian judicial system, facts contained in their application may trigger supplementary submissions92 and once there is an investigation, they may request the CIJs to conduct further investigations into a matter. As noted in the previous chapter, in Case 002, civil parties filed a number of investigatory requests into forced marriage, alongside requests in relation to genocide against Khmer nationals, Khmer Krom and the Vietnamese.93 When a case reaches the trial stage, civil parties may request hearing witnesses and civil parties;94 raise and respond to objections;95 make written submissions;96 question the accused, witnesses and experts;97 and make closing statements.98 If the CPs appeal the judgment, the civil parties may also do so too, and they may always appeal the decision on reparations.99 In these stipulations of participation, there are a few quirks. While civil parties may make closing statements, they cannot 90 91 92 93 94 95 96 97 98 99

Ibid. [93]. See next section. ECCC Internal Rules r 55; FIDH Report 38–9. ECCC Internal Rules r 59(5); FIDH Report 39. ECCC Internal Rules r 80(2). Ibid. r 89. Ibid. r 92. Ibid. r 90(2). Ibid. r 94(1). Ibid. r 105(1).

Becoming participant 123 make opening statements;100 while they may question the accused, they cannot do so concerning his/her character,101 and while civil parties participate as individuals during the investigation phase, they appear as a collective at trial and after.102 And most importantly, all of these participatory acts are through a lawyer.103 Appearing on the stage of the Chamber, presenting the interests of the civil parties, are lawyers, acting as representatives of their clients. As the Internal Rules put it, the lawyer ‘exercises’ the rights of the civil party.104 The way the lawyer exercises the rights of the civil party is not so much as an embodiment of the civil party, nor is it representation in the sense that the lawyer symbolises the victim or acts as its stand in.105 Rather, the lawyer acts on behalf of the victim, in their name, and in their behalf, looking after their interests.106 In his writings on representation and the relationship between representative and represented, Hobbes considered the person who conducts the act to be the ‘actor’ and the person who provides this right to act, this authorisation, to be its ‘author’.107 In the context of civil party participation at the ECCC, this would make the lawyer the actor and the civil party the author. For Hobbes, there are two aspects in authority: it holds a right to perform an action and it holds a responsibility for this action. Notably, it is the actor – the one performing the act – who bears ‘rights and privileges’, and the author – who provides the actor with a right to perform – is a bearer of ‘obligations and responsibilities.’108 Understood in this

100 See ECCC, Internal Rules (Rev 8) (adopted 12 August 2011) rr 80(2), 91(2), 90(2), 92, 74(4), 94(1). Civil party lawyers sought in the trials of both Case Nos 001 and 002 to make opening statements but were denied. See Prosecutor v Kaing (Trial Chamber Decision on the Request of the Co-Lawyers for Civil Parties Group 2 to Make an Opening Statement During the Substantive Hearing) (ECCC, Trial Chamber, Case No 001, 27 March 2009); Prosecutor v Nuon (Trial Chamber Response to Lead Co-Lawyers and Civil Party Lawyers’ Request to Make Brief Preliminary Remarks on Behalf of Civil Parties) (ECCC, Trial Chamber, Case No 002, 15 November 2011). 101 Prosecutor v Kaing (Decision on Civil Party Co-Lawyers’ Joint Request for a Ruling on the Standing of Civil Party Lawyers to Make Submissions on Sentencing and Directions Concerning the Questioning of the Accused, Experts and Witnesses Testifying on Character) (ECCC, Trial Chamber, Case No 001, 9 October 2009) [33], [35], [42], [44], [48] (Judge Lavergne dissenting). 102 Compare ECCC, Internal Rules (adopted 12 June 2007) r 23(8)(a) with ECCC, Internal Rules (Rev 8) (adopted 12 August 2011) r 23 ter (3)(a). 103 ‘From the issuance of the Closing Order onwards, in order to participate in proceedings, Civil Parties shall at all times be represented by a Civil Party lawyer’: ECCC, Internal Rules (Rev 8) (adopted 12 August 2011) r 23 ter (1). 104 ECCC, Internal Rules (Rev 8) (adopted 12 August 2011) r 23 ter (2). 105 According to Ball, lawyers ‘take the part of their clients and, theatrically as well as legally, represent them’. While Ball’s likeness with the lawyer to that of the actor pushes us to think of the performative dimensions involved, his remark misses the way the lawyer is authorised to act in a way that an actor is not (necessarily). See Ball, above n 3, 89. 106 See Chapter 1 on forms of representation; Pitkin, above n 4, 61, 83–4, 97–100, chapter 6 at large and in particular 127. 107 As Pitkin puts it, ‘the author [is] the one who authorized [an act], who had the right to do it, without whose consent it is invalid’: Pitkin, above n 4, 18–19. 108 Ibid. Pitkin then continues the discussion on Hobbes by way of complicating this rather straightforward relation, but this is not of relevance here.

124  Becoming participant way, the lawyer bears the ‘rights and privileges’ to act on behalf of the civil party, who remains responsible. As theorised by Hobbes, the relation between the civil party and the lawyer who speaks on his/her behalf would be a firm link, legally established in the power of attorney. But the relation between the lawyer speaking and the civil party has changed over the years and is now more complex. As noted above, most civil parties filed their application through the assistance of an NGO.109 Many of the NGOs have also facilitated the connection between the civil parties and a lawyer. Indeed, NGOs have been significant intermediaries between civil parties and their lawyers at all stages of the proceedings, from the application process to the reparations.110 In the case against Duch in Case 001, the relations between the civil parties and their lawyers were relatively straightforward. Most civil parties were associated with an NGO, which then had a made a connection with a civil party lawyer. All together, there were six national and 11 international civil party lawyers representing the civil parties, organised into four teams.111 Present inside the Trial Chamber were thus eight civil party lawyers. The presence of so many lawyers, who all sought to present arguments and represent their clients, made the procedure ‘cumbersome.’ According to Helen Jarvis, at the time chief of the Victims Support Section (VSS), ‘this presented not only logistical difficulties to the court, including space requirements, but also the difficulty of developing and arguing a coherent legal strategy, with co-lawyers often presenting repetitive or, at times, contradictory arguments.’112 Inside the Trial Chamber were a plethora of victim voices, taking too much time, too much space. With an anticipated much larger number of civil parties, Case 002 called for a better coordination and organisation so as to encompass the large number of civil parties.113 First, as noted above, the Pre-Trial Chamber decided in its decision on the appeals on the admissibility of civil parties to ‘apply a presumption of collective injury in its assessment.’114 And because the civil party participation is ‘moral and collective’, the effects of ‘a possibility of a larger number of people as Civil Parties’ cannot ‘have an adverse effect on the rights of the accused.’115 In other words, this collective, which primarily participate for moral reasons, is one entity and its interests spoken through a single voice. As a way to make ‘effective the organisation of Civil Party representation’,116 the Internal Rules were amended

109 Chapter 2 of this book; 002 Closing Order [11]. 110 Christoph Sperfeldt, ‘The Role of Cambodian Civil Society in the Victim Participation Scheme of the Extraordinary Chambers in the Courts of Cambodia’ in Thorsten Bonacker and Christoph Safferling (eds), Victims of International Crimes: An Interdisciplinary Discourse (TMC Asser Press, 2013) 345. 111 DC Cam, CDP-ADHOC, ASF and a ‘Paris team’ consisting of individual lawyers. 112 Jarvis, above n 6, 23. 113 ‘Reaching Out to Newly Admitted Civil Parties’ (2011) 39 Court Report 1. 114 PTC Decision on CP Appeals [93]. 115 Ibid. [97]. 116 ECCC, Internal Rules (Rev 8) (12 August 2011) r 12 ter (1).

Becoming participant 125 to install two lead co-lawyers who, once a case goes to trial, henceforth speak on behalf of the civil party lawyers. Not only does this add another layer of representation, but the lead co-lawyers also ‘[r]epresent[] the interests of the consolidated group of Civil Parties’.117 In other words, since 2010, when the appearance of civil parties changed from individuals in the pre-trial stage to a collective at the trial onwards, their voices are also ‘consolidated’ and spoken in one voice by the lead co-lawyers. No longer may the civil party lawyer speak directly on behalf of the civil party, but must first be authorised to do so by the lead co-lawyers. And so, if the relation between the lawyer and the civil party is understood as one between an actor and an author, the inclusion of lead co-lawyers means the activities of the actor are now subjected to the authority of the lead co-lawyers. This affects the voices of the civil parties. As the interests of the civil parties must be ‘consolidated’, any internal differences are necessarily suppressed. According to Bernath, the combination of a consolidation of all civil parties and the Court’s broad understanding of victimhood, which also accepts former low-ranking Khmer Rouge cadre as victims as long they meet the requirements of suffering,118 produced unease amongst some civil parties and their lawyers.119 At one point, a civil party lawyer tried to file a submission directly, arguing she was acting on behalf of her clients whose interests could not be consolidated with the larger group. Her submission was found inadmissible120 as she lacked authority to file it. The same lawyer was later reported as lamenting over a ‘seemingly arbitrary rejection of submissions she wanted to file on behalf of her clients.’121 While her complaint should be supplemented by statements indicating that in practice the lead co-lawyers have gone to great lengths to work collaboratively with the civil party lawyers,122 whether or not the lead co-lawyers work collaboratively is beside the point. Instead, the question the system of lead co-lawyers raises is that of the authority to speak: In what way is the voice that is heard by the Court during trial that is presented as that of the victims, authored by victims? In relation to the civil parties, the civil party lawyers hold a number of ‘rights and privileges’.123 But the responsibilities and duties of the lead co-lawyers are slightly different. In contrast to the civil party lawyers, the lead co-lawyers have

117 118 119 120

Ibid. r 12 ter (5)(a) (emphasis added). Ibid. r 23 bis (1)(b). Bernath, above n 55, 57, 61 citing a personal interview with ‘international ECCC staff’. Nuon Chea et al. (Request for Admission of Belated Filing According to Article 10.2 and 9 of the Practice Direction) (ECCC, Trial Chamber, Case No 002, 21 March 2011). 121 She was further quoted complaining that ‘We [civil party lawyers] have NO body to complain to about whatever decision they [civil party lead co-lawyers] take. We are fully in their hands. They do not have only a coordinating role, they decide which content is submitted and which is excluded. They have uncontrolled power.’ Silke Studzinsky, first paraphrased by and then quoted in Julia Wallace, ‘Losing Civil Parties in Cambodia’ (2012) 143 International Justice Tribune 1. 22 See especially discussion in Ciorciari and Heindel, above n 7, 223–4. 1 23 Hobbes, see above, and Pitkin, above n 4, 18–19. 1

126  Becoming participant not been authorised to act by the civil parties but by the Court. The office of the lead co-lawyers is different from that of the civil party lawyers. While it is ‘autonomous’ of the Office of the Administration,124 they are nonetheless appointed directly by the ECCC.125 In this light, it is less surprising that the lead co-lawyers are not only to represent the civil party lawyers but that this is to be done ‘whilst balancing the rights of all parties and the need for an expeditious trial within the unique ECCC context.’126 Their responsibility lies with the effective organisation and coordination of civil party representation, not with the civil parties.127 So while they are to represent ‘the interests of the consolidated group of Civil Parties’, their acts have been authored by neither the lawyers nor the civil parties. At trial, not only is the voice of the civil party mediated by a lawyer who acts on its behalf, but also by a lead co-lawyer who holds extensive responsibilities to the Court but no responsibilities to the individual civil parties. This act of representation and its relationships between actor and author, already complex, becomes even more complex when considering reparations. Modes of participation The main purpose of civil party participation is to ‘[s]eek collective and moral reparations’.128 Although the Internal Rules stipulate a second purpose, to ‘participate in criminal proceedings . . . by supporting the prosecution’,129 the Trial Chamber has specified130 that the interests of civil parties lie principally and fundamentally with their right to seek moral and collective reparations.131 That is, they participate only to the extent that reparations require a criminal conviction and ascertaining the truth. Civil party participation in proceedings is thus linked to, even subsumed within, the purpose of seeking of reparations. Representation raises questions regarding the relation between victims and civil parties: Who is the beneficiary or recipient of the reparation – civil parties or the larger communities? ‘Victims’ generally? What kind of reparations are suitable in a country

124 125 126 127 128 129 130

ECCC, Internal Rules (Rev 8) (adopted 12 August 2011) r 12. Ibid. r 12 ter (4). Ibid. r 12 ter (1). Ibid. r 12 ter. ECCC Internal Rules r 23. Ibid. Prosecutor v Kaing (Decision on Civil Party Co-Lawyers’ Joint Request for a Ruling on the Standing of Civil Party Lawyers to Make Submissions on Sentencing and Directions Concerning the Questioning of the Accused, Experts and Witnesses Testifying on Character) (ECCC, Trial Chamber, Case No 001, 9 October 2009) [25]. In response to defence concerns regarding equality of arms. Others saw the complaints about the civil party role as illustrating the inexperience of lawyers with common law backgrounds with victim participation. See Alain Werner and Daniella Rudy, ‘Civil Party Representation at the ECCC: Sounding the Retreat in International Criminal Law?’ (2010) 8(3) Northwestern Journal of International Human Rights 301. 31 Prosecutor v Kaing (Decision on Civil Party Co-Lawyers’ Joint Request for a Ruling on the 1 Standing of Civil Party Lawyers to Make Submissions on Sentencing and Directions Concerning the Questioning of the Accused, Experts and Witnesses Testifying on Character) (ECCC, Trial Chamber, Case No 001, 9 October 2009) [33]–[34].

Becoming participant 127 with prolonged periods of conflict and so much suffering? And how should they be linked to the person found guilty of the crimes? Whereas reparations in the first trial raised a fundamental question of institutional authority, they have in the second trial raised a different set of questions concerning civil parties as authors and actors, and their relation to the ECCC. The first ordering of reparations was anti-climactic. Of existing international (ised) criminal courts and tribunals (ICTs), only the ECCC and the ICC132 have provisions for reparations, and the reparations in the Duch case was the first reparation to be ordered by any ICT.133 The exact parameters of reparations remained unclear until the very end, including the meaning of ‘collective and moral’ reparations. In response to a request by the Trial Chamber, the civil parties filed a joint submission with a number of requests for reparations, inter alia the construction of memorials and pagodas, the restoration of important sites such as S-21 and a compilation of the apologies Duch made during trial.134 But in their judgment, the Trial Chamber found that for most of the requested reparations, the ‘ECCC lacks the competence to enforce reparations awards’135 as it ‘has no jurisdiction over Cambodian or other national authorities or international bodies.’136 It was assumed that the accused was indigent and as there was no independent fund at its disposal, similar to the Trust Fund at the ICC,137 the Chamber found that there was no ‘mechanism’ to allow or provide for awards.138 As a result, the Trial Chamber only accorded two reparations: the compilation of apologies, and the publication of the names of the civil parties in the judgment.139 With regard to the other requests, it simply did not have the necessary authority. As an internationalised court, its existence here fell between jurisdictions; neither properly Cambodian nor properly international, ultimately lacking authority. The result, and in particular given the emphasis on reparations as the main purpose of civil party participation, was fundamentally anti-climactic.140

32 ICC, Rules of Procedure and Evidence, Doc No ICC-ASP/1/3 (adopted 9 September 2002) r 98. 1 133 The second is the ICC case against Lubanga. After the Trial Chamber judgment from 7 August 2012, the Appeals Chamber amended the principles regarding reparations. See Prosecutor v Lubanga (Judgment) (ICC, Appeals Chamber, Case No ICC-01/04-01/06, 3 March 2015). For discussion, see Carsten Stahn, ‘Reparative Justice after the Lubanga Appeals Judgment: New Prospects for Expressivism and Participatory Justice or “Juridified Victimhood” by Other Means’ (2015) SSRN, http://dx.doi.org/10.2139/ssrn.2586332. 134 Duch Trial Judgment [652]. 135 Ibid. [661]. 136 Ibid. [663]. 137 The ICC Trust Fund for Victims has two responsibilities: to administer and implement the reparations ordered by courts; and to administer and organise general assistance – that is, voluntary contributions from donors to support victims and their families. See also its website: the Trust Fund For Victims, www.trustfundforvictims.org. 138 Duch Trial Judgment [664]. 139 Ibid. [682]–[683]. 140 For longer discussion on the reparations, see, for example, Renee Jeffrey, ‘Beyond Repair? Collective and Moral Reparations at the Khmer Rouge Tribunal’ (2014) 13(1) Journal of Human Rights 103; Christoph Sperfeldt, ‘Collective Reparations at the Extraordinary Chambers in the Courts of Cambodia’ (2012) 12(3) International Criminal Law Review 457.

128  Becoming participant After the crisis of authority that surfaced in the trial judgment against Duch, the Court rethought its relation to reparations. First, the Supreme Court Chamber (SCC) provided in its appeal judgment against Duch some clarifications regarding reparations. According to them, the reparations need to be framed within a context of ‘national reconciliation’ and offer points of departure rather than be end points.141 As they are meant to be collective, they should be ‘inclusive’ and ‘benefit as many victims as possible’.142 The result was a reparation model that positions civil parties as spokespersons for a larger victim ‘constituency’. Second, the Internal Rules were amended. The result was the creation of two different schemes. The first scheme consists of an award that is tied to the convicted person and the crimes for which s/he is convicted. It is ordered together with a finding of guilt, and what is notable about the scheme is its organisation. Rather than being conceived of by the judges, it is up to the lead co-lawyers and the VSS to ‘identify, design and later implement projects’143 that can be submitted as civil parties’ requests for reparations.144 Furthermore, the lead co-lawyers and the VSS are also responsible for securing funding for the reparation.145 Upon learning of the scheme, the international co-lead lawyer argued that this made project management a responsibility of civil party lawyers and the VSS. Furthermore, putting the responsibility of presenting fully funded projects on the civil parties ‘impose[d] upon the[m] . . . a heavy and unjust burden’.146 In Case 002/01, 13 requests were submitted. This included the establishment of a national day of remembrance,147 the construction of a memorial in Phnom Penh in honour of the victims of forced evacuation,148 projects on testimonial therapy and selfhelp groups, and projects related to the documentation and education about the Khmer Rouge.149 In the Trial Chamber Judgment, 11 reparations were awarded and two dismissed due to insufficient proof of secured funding.150 The reparation scheme at the ECCC – the foundation upon which it is awarded and its process – institutes a curious relation between the Court and civil parties. The civil parties act on behalf of a larger ‘collective’ that consists of ‘as many victims as possible’ as stipulated by the SCC. The role of civil parties is limited to suggesting reparations that are organised by the co-lead lawyers and the VSS.

141 142 143 144 145 146 147 148 149 150

Duch Appeal Judgment [655]. Ibid [659]. ECCC Internal Rules r 12 bis 3, see also r 23 quinquies (3)(b). On reparations at the ECCC, see Sperfeldt, ‘Collective Reparations’, above n 140. ECCC Internal Rules r 80 bis (4). Elisabeth Simonneau Fort, ‘Reparations a major issue’, Phnom Penh Post (online), 8 August 2013, www.phnompenhpost.com/analysis-and-op-ed/reparations-major-issue. 20 May was selected for the day in question, a day that has been a public holiday since 1983 called T’veer Chong Kamhaeng – Day of Anger, or rather, of tying anger. See Preface to this book. Prosecutors v Nuon Chea et al. (Judgment) (ECCC, Trial Chamber, Case No 002/01, 7 August 2014) [1122]–[1164] (‘Case 002/01 Trial Judgment’). Ibid. [1160]–[1161].

Becoming participant 129 The proposed reparations are taken to the bench, which either endorses or dismisses them. If endorsed, the reparation is to benefit the process of national reconciliation. But not only is this role of civil parties as representatives of the larger victim collective curious but so is the content of the reparations. Projects such as testimonial therapy and self-help groups and education about the Khmer Rouge might otherwise be conceptualised as development projects, or as programmes of health, culture and education, but as reparations, they are instead placed within a context of (international) criminal law. Their tie to international criminal law (ICL) provides them with a quality of lawfulness that is particular of ICL. This practice of providing projects with a quality of ICL by situating or contextualising projects within its ambit is even more curious with the second scheme. In recognition of the fact that reparations are at times difficult to achieve due to ‘difficult admissibility criteria’,151 the VSS has been ‘entrusted with the development and implementation of non-judicial programs and measures’.152 Notably, these non-judicial measures and programs do not rely on a convicted person or the crimes s/he was convicted for, nor are they tied to civil parties. Instead, they are meant to ‘address[] the broader interests of victims.’153 They tie projects to the ECCC without linking them to a case or any of its parties. Two projects are illustrative for the scheme: in 2015, a memorial stupa was erected at the Tuol Sleng Genocide Museum,154 and in 2016, the VSS began a three-year project funded by the UN Trust Fund to End Violence against Women on ‘Promoting gender equality and improving access of justice for female and gender-based violence survivors of the Khmer Rouge period.’155 While they are associated with similar issues and injuries as adjudicated at the ECCC (Tuol Sleng/S-21 was a crime site for both Cases 001 and 002, and gender-based violence in the form of rape and sexual violence has been investigated but only prosecuted in relation to marriages in Case 002), the standing of an accused person has no bearing on them. These schemes raise questions that cannot easily be answered here concerning the promises and the limits of international criminal law and justice. There seems be an allure of ICL that exceeds a particular case or accused person. By not being linked to the responsibility of an accused or even to a case, these broader measures change the ambit of the practices of ICJ, and in doing so shift the focus from civil parties to victims. Furthermore, given the moral and collective nature of reparations, the beneficiary of the reparations is not limited to the civil parties but intended to affect the larger collective. While this collective does not author(ise) neither the civil parties nor the Court to act on its behalf, the actions of the civil parties are meant to be in their benefit, on their behalf.

151 152 153 154 155

Ibid. [1112]. ECCC Internal Rules r 12 bis 4. Ibid. More on this in Chapter 5. Victims Support Section of the ECCC secures funds from UN Trust Fund to End Violence against Women (28 January 2016) ECCC, www.eccc.gov.kh/en/articles/victims-support-section-ecccsecures-funds-un-trust-fund-end-violence-against-women.

130  Becoming participant In relation to civil parties – their status, their appearances and their participation – the representation of victims raises questions. Whereas civil parties in the original Internal Rules were deemed ‘parties to the case’,156 there is no longer any such stipulation. Now, there is the civil party but one who is a party in name only. At times, the civil party embodies the victim, but authorises a lawyer to act of its behalf. At other times, civil parties speak on behalf of victims, conceived of as ‘outside’. The victim civil party thus demonstrates the multiple ways of representation. With that, it is time to listen to the testimony of victims.

The testifier On 27 May 2013, Sou Southeavy entered the ECCC Chamber to give a statement on her suffering. She spoke about how she, like so many others, had in April 1975 been forced at gunpoint to leave her home and community, how she had witnessed the execution of several of her friends, how she had suffered and continues to suffer. She was asked about her emotions and questioned about the veracity of her factual accounts. When there are no more questions, Presiding Judge Nil Nonn thanked her for her ‘statement of suffering and harm’ which ‘may contribute to ascertaining the truth.’ She ‘may now return to your place of residence or wherever you wish to go to, and we wish you all the very best.’157 Appearing before the Chamber is the testifier, a person who bears witness to both her own suffering and that of others. In this section, I follow the person who comes to the trial to give testimony as a victim. At the ECCC, this person is either a witness or civil party, and for lack of a better word, I call the person giving testimony as a victim a testifier. In accordance with civil law procedure, both witnesses and civil parties give testimony on facts that may be used as evidence, and both are examined and cross-examined as to the details and veracity of their claims. Despite the similarities between the witness and the civil party, there are also differences. In particular, the locations from which they draw their authority to testify differ and so do the practices that regulate their appearances. In tracing this appearance of the victim through the testifier, I suggest that we see an enactment of a victim, but one who is also closely attached to the collective of victims. Through the testimony, the testifier represents the victim both by enactment and by speaking on their behalf. In the testifier, the combination of two forms of representation in one person brings to the fore the way appearance is conditioned by space, body and legal rules. I begin with the difference in the legal persons of witness and civil party, then turn to the way the recognition of victimhood is guided by rules of enactment, to finally demonstrate the conditions of this appearance.

156 ECCC Internal Rules r 23(6)(a). 157 Transcript of Proceedings, Prosecutor v Nuon (ECCC, Trial Chamber, Case 002/01, 27 May 2013) 31 (‘Case 002/01 Trial Transcripts’).

Becoming participant 131 The testis During the 72-day trial against Duch, 22 persons gave testimony as civil parties and 33 as witnesses.158 Case 002 was split into two mini-trials, with the first spanning over 222 days of hearings with 31 civil parties testifying alongside 61 witnesses, and the second mini-trial covering 274 trial days with 63 civil parties testifying and 114 witnesses.159 Each trial consisted of a phase when evidence was heard, during which both civil parties and witnesses were called to testify, and a later phase dedicated to hearing a few civil parties on their suffering. Those who were heard as victims during the evidence phase were heard alongside persons authorised to testify on the basis of their knowledge. This knowledge was acquired as academics researching the Khmer Rouge period or as professionals on the physical and mental capacities of the accused person, or as having been acquainted with the accused or participated in investigated events. The existence of two legal persons – civil party and witness – that testify before the Court has attracted attention in academic scholarship160 as well as during the trial process itself, especially from lawyers with a common law background. It is important to note from the outset that the distinction between witness and civil party is not one concerning a claim of victimhood. Yet, as different legal persons, the rules that regulate the representations of victim differ slightly. So, first to the formal legal differences. Witnesses are called by a party161 and appear in the Chamber to answer questions on facts. Before being questioned and often before even entering the Chamber, witnesses ‘take an oath or affirmation in accordance with their religion or beliefs to state the truth.’162 Civil parties, on the other hand, are not under oath.163 Nor are civil parties precluded from consulting with their lawyer in preparing for the testimony; indeed they are even encouraged to do so.164 On the basis of these differences, defence lawyers have on multiple occasions questioned the premise for and the usage of civil party testimony in relation to facts. For example, before he passed away, Ieng Sary’s defence argued that as civil parties have an interest in the outcome of the case and are therefore biased, they ought to take an oath.165 But any concerns raised by the defence have been dismissed.

158 The summary is from the ECCC website: Case 001, ECCC, www.eccc.gov.kh/en/case/topic/1. 159 ECCC Public Affairs Section, A Guide to the First Trial in Case 002 (April 2014) ECCC 1, www.eccc.gov.kh/sites/default/files/Guide%20to%20the%20First%20Trial%20in%20Case%20 002%20-%20April2014_FINAL.pdf; Factsheet Case 002/02, ECCC, https://eccc.gov.kh/sites/ default/files/publications/Factsheet%20case%20002-02%20English%20final.pdf. 160 See above on civil party participation. 161 ECCC Internal Rules r 84(3). 162 Ibid. r 24(1). 163 Ibid. r 23. 164 Ibid. r 24; and as seen when Judge Cartwright questions whether civil party lawyer Studzinsky has prepared her client properly: Duch Trial Transcripts, 9 July 2009, 51–3. 165 Prosecutor v Nuon Chea et al. (Ieng Sary’s Motion for Civil Parties to Testify under Oath if They Are Permitted to Testify as to Their Knowledge of the Criminal Case) (ECCC, Trial Chamber, Case No 002, 24 February 2011) [7].

132  Becoming participant When Nuon Chea’s defence argued that only if civil parties took an oath should their testimony on facts be admissible,166 this was simply dismissed on the basis that it is up to the Chamber to assess their statements.167 After their convictions in 002/01, both Nuon Chea and Khieu Samphan appealed, partly on the grounds that the Trial Chamber relied upon civil party testimony as evidence.168 But the SCC found that in the establishment of guilt or truth, there is nothing to preclude civil party testimony per se. Instead, civil party testimony and its credibility is assessed on a case-by-case basis.169 Civil party testimony is in this way not limited to statements on the impact of the victimisation or the alleged crime. Instead, civil parties, like witnesses, provide facts, the veracity of which is up to the bench to determine. When witnesses and civil parties give testimony that is deemed potential evidence, they perform as testis, the Latin figure of the neutral third-party bystander. In this sense, the testifier must appear if not objective then at least truthful. During the testimonies at the ECCC, both witnesses and civil parties are asked about particular details and challenged as to the veracity of their claims: Was the beating by a stick or club,170 when did each event occur,171 who exactly did this?172 At these times, the testifier is prompted to restrict the narration to information considered ‘relevant’, information that was connected to the accused, and in the order suggested by the bench. One civil party who appeared during the evidence phase in the trial against Duch was in this vein reprimanded: ‘The Chamber asked you to describe about [sic] the situation but you have not been able to detail what we asked you, so I would like you to please listen to the question of the Chamber step-by-step’.173 Also, during the phase in which civil parties gave testimony as to their suffering they have been asked for clarifications and challenged as to the veracity of their statements: Was there anyone opposing orders during the evacuation from Phnom Penh, and were all the soldiers wearing the same colour on their uniforms?174 And it has not been unusual that civil parties are challenged by a defence lawyer to explain two seemingly contradictory statements.175 Appearing as witness or as civil party, persons who claim victimhood come to the ECCC to give what the ECCC calls factual testimony. Their claims are challenged and their performance as speakers is carefully guided. In addition to providing factual accounts, these persons are asked to narrate their suffering, to verbally

166 Case 002/01 Trial Transcripts, 6 December 2011, 33–5. 167 See, for example, ibid. 35–6. 168 Prosecutor v Nuon Chea et al. (Appeal Judgement) (ECCC, SCC, Case No 002/01, 23 November 2016) [306]–[308]. 169 Ibid. [312]–[314]. 170 Question posed to Chum Mey: Duch Trial Transcripts, 30 June 2009, 23. 171 See, for example, questions posed to Norng Chanphal: Duch Trial Transcripts, 2 July 2009. 172 See, for example, questioning regarding rape: Praek Khan in Duch Trial Transcripts, 22 July 2009. 173 President Nil to Bou Meng: Duch Trial Transcripts, 1 July 2009, 19. 174 Case 002/01 Trial Transcripts, 27 May 2013, 27–31, 50. 175 See, for example, ibid. 27–31, 48.

Becoming participant 133 represent their victimisation. To understand how they through the testimony perform as victims, I turn to a few testimonies for closer examination. Enacting the victim Some of those who testify as victims during trial are called to do so because their victimisation is pre-established, whereas others appear as victims only through the testimony. Whether the testifier is formally a witness or a civil party is here irrelevant. In this section, I examine three testimonies. They are all from the trial against Duch; two appeared as witnesses, and were already known to have been victims at the hands of Duch, and one appeared as a civil party, and claimed victimhood through her testimony. Examining their testimonies provides understanding of the expectations of victims’ appearance. François Bizot was heard as a witness in the trial against Duch on the 7th and 8th of April 2009. In 1971, Bizot was detained alongside two Cambodian co-workers at M-13, a security centre run by Duch. He alone was released a few months later through direct interventions by Duch. Bizot has written about this experience in The Gate,176 a book he says he wrote ‘not as a report or as a testimonial, but on the basis of a feeling.’177 Regardless of the book’s genre, in its foreword he is introduced as someone who has ‘the authority of pain.’178 Here, his authority to speak is derived from experience, not from having witnessed as a third-party observer, but from having experienced the suffering himself. In this way, in the book he performs not as a testis – a third-party bystander who objectively narrates what he saw unfold – but as a superstite, as someone who bears witness through their testimony to what they have experienced. The superstite speaks as someone who has the authority of experience; an authority of having been there and in person experienced the suffering. Significantly, the superstite is a figure of ethics and not traditionally conceived of as the juridical – and perhaps it should not be conceived as such.179 But when describing the discrepancy between those who appear as testis and those who are invited to speak on their suffering, it is helpful to consider the superstite. Bizot was detained in 1971, a period over which the ECCC does not have jurisdiction.180 So instead of applying to be a civil party, he was called as a witness. While in his book he has the ‘authority of pain’ to bear witness, because

176 François Bizot, The Gate (Euan Cameron trans, Knopf, 2003) [trans of: Le portail (first published 2002)]. 177 Bizot testified in French; this English translation of the testimony is from his book: François Bizot, Facing the Torturer: Inside the Mind of a Khmer Rouge War Criminal (Charlotte Mandell and Antoine Audouard trans, Vintage Books, 2013) 171 [trans of Le Silence du bourreau (first published 2011)], a book in which he described his experiences at the ECCC and of meeting Duch. The official English trial transcript differs ever so slightly. 178 John le Carré, ‘Foreword’ in Bizot, above n 176, viii. 179 Giorgio Agamben, Remnants of Auschwitz: The Witness and the Archive (Daniel Heller-Roazen trans, Zone Books, 2000) 17–18 [trans of: Quel che resta di Auschwitz (first published in 1998)]. 180 See Chapter 2.

134  Becoming participant the temporal jurisdiction of the Court does not cover the period during which he was detained, he cannot claim victimhood before the law. Thus, instead of inviting Bizot to give a statement on his suffering, the Court President asks him to ‘describe the actual scenes that [he has] seen at the office M-13.’181 Yet, at the time of the trial, his book has already been published and is present in the minds of the judges and lawyers who conduct the questioning. During the testimony, several refer to his book and pose questions in direct relation to details therein. According to Bizot, he wrote the book driven by an interest to see the man behind the monster who tortured him, something that would acknowledge the monstrosity in all of us. This interest also comes out in his testimony. When it is the civil party lawyers’ turn to question Bizot, it is as if Bizot does not properly perform the role he is expected to play, as if he is not properly representing victims. First, he does not speak properly as a victim. Civil party lawyer Werner mentions Bizot’s attempts to see the man ‘behind the mask of the monster’182 – ‘we respect that on behalf of the civil parties’183 – but his questions nonetheless are posed as a challenge: If he can see the man in the torturer, can he also see the man in the Khmer Rouge leader given what he did ‘to this country; this country that you love’?184 Then, it is as if Bizot does not speak properly in the interest of victims. Civil party lawyer Cannone appears to be taken by Bizot’s factual approach in his testimony, stating he will move the questions from facts to emotion. Asking Bizot whether he can proceed to ask ‘questions about your emotional response to all of this,’ he brings in the two co-workers and friends that were detained together with Bizot but never released. Cannone wonders, in light of Bizot’s ‘wish to try to understand the complexity of the human soul’ (which Cannone ‘respects’), [w]hen you left your comrades, they said to you: “French comrade, don’t forget us!” If Lay and Son were here today, what would they expect from this confrontation, what would they expect from this trial?185 It is as if Cannone is not content with the way Bizot has testified, as if he has not properly spoken as and on behalf of the victims. Bizot was invited to the Court to testify as to what he saw, as a third party. But he also experienced the events, he also suffered, and he survived to tell. The questions posed by the civil party lawyers seem to first challenge this role of bystander, but also the role of trying to understand the perpetrator when he should be a victim representative. In the book that he wrote on his experience at the ECCC and of facing Duch again, Bizot describes his reply to Cannone:

181 182 183 184 185

Duch Trial Transcripts, 8 April 2009, 56. Civil Party lawyer Alain Werner: Duch Trial Transcripts, 9 April 2009, 20. Ibid. 21. Ibid. Quote is taken from Bizot, Facing the Torturer, above n 177, 194 as the verbatim trial transcript is a bit more clunky: Duch Trial Transcripts, 9 April 2009, 29.

Becoming participant 135 At first I again had no reply to give. How could I set myself up as a spokesperson for the dead? But all of a sudden, weightlessly in the court, the hordes of ghosts of M-13 came to my rescue . . . [and] with the words that they had breathed in my ear I spoke, immediately making myself their interpreter, to ask that the punishment of the torturer be precisely calculated to equal the suffering they themselves had endured.186 Prompted by the lawyers, Bizot speaks for the dead. He does not speak of forgiveness but speaks of revenge and of punishment. The civil party lawyer thanks him; he has no more questions. Prompted to speak as spokesperson for the dead, Bizot first hesitates but then fulfils his role. Even when formally called as a witness to describe facts, because he also survived a victimisation, Bizot is called during the questioning to speak of suffering. Bizot was not the only former prisoner of the Khmer Rouge who appeared as a witness instead of as a civil party. During the trial against Duch, five persons spoke as former prisoners of the notorious S-21,187 the centre Duch is most known for having run and where some 18,000 persons were killed.188 While three of these victim survivors chose to participate as civil parties, Vann Nath chose instead to file a complaint and was subsequently called as a witness.189 As a witness, he was ‘invite[d] . . . to provide . . . testimony regarding the S-21 office.’ When he was seated in front of the judges, he was informed of his ‘obligation to testify to the facts . . . seen . . . [and] heard.’190 During his day-long testimony, Nath was composed when asked at length about what he saw as a prisoner of S-21 and his experiences there. He spoke of the beatings he saw, the hunger he experienced and the fear they all felt. He described how he ‘lost his dignity because the condition of the prisoners and the guards were so distant. It’s like humans compared to animals. Even with animals they would give enough food.’191 He was asked about paintings he has made since and while speaking, his paintings appeared on screens in the Chamber. Judge Lavergne pointed out that after his release, Vann Nath had continued to paint, given many interviews on his experience, partaken in documentaries and written a biography, and so ‘why is

186 Bizot, Facing the Torturer, above n 177, 123–4. 187 Chum Mey, Bou Meng, Vann Nath, Norng Chanphal and Ly Hor. The first three were before the trial known to the public as survivors of S-21. While Norng Chanphal was at trial accepted to have survived S-21 as a child victim, he did not apply to be a civil party and appeared as a witness. Ly Hor’s status as a civil party was only confirmed through the Supreme Court’s Judgment: Duch Appeal Judgment [540]. Three more persons (Lay Chan, Phaok Khan and Nam Mon) claimed during the trial to have been imprisoned at S-21 but these claims were dismissed by both the Trial Chamber and SCC. 188 As discussed in Chapter 2, a prison list provided as evidence in Case No 001 holds 12,273 names (Duch Trial Judgment [597]) but in Case No 002, another list was presented, that if accepted makes the number of confirmed killed persons 18,133. 189 Norng Chanphal testified as a child survivor of S-21 but because he missed the deadline for civil party applications, he was called as a witness. 190 Duch Trial Transcripts, 29 June 2009, 10. 191 Ibid. 20–21.

136  Becoming participant it so important for you to testify in this way?’ In a statement that echoes familiar reasons for survivor testimony,192 Nath explained that when he was still detained, he was determined to compile the events to reflect on what happened so that the younger generation knew – would know of our suffering, and that the 36 of us [who were arrested together and] who were transferred over to S-21 never committed anything wrong.193 Surviving so to speak, speaking so to not forget. He speaks for the 36 of whom only he survived but he also refers to how testifying was already on his mind while imprisoned. Again and again, Nath mentions the young and the younger generations. Although he speaks as a witness, he exceeds the role of the neutral third-party observer and his experience of survival grants him authority to address the young. When the time has come for the defence lawyers to pose questions, MariePaule Canizares asks Nath why he chose to not become a civil party. He was victimised, he has suffered, so why doesn’t he want to claim the legal personhood of civil party? Before a civil party lawyer objects, Vann Nath answers that the reason for not applying to become a civil party was partly due to his ill health, but also because he believe[d] this is not my own personal matter. It is a matter for my whole Cambodian people. . . . And usually people who [apply to become a civil party] would have an objective to seek for reparation. I myself, personally, I do not want to seek for any reparation. And if the trial needs me at any time of their convenience, then I am ready to provide my testimony.194 His reply that the trial was for the community and not him personally and his dismissal of reparations prompted a civil party lawyer to object, asking the President to advise the defence lawyer to only ask questions as to facts,195 something that would suggest that here, exceeding the role of the testis is inappropriate. But the President does not agree and allows the answer to stand. As with the rest of his testimony, Nath positioned himself as one of many victims, the trial was not his ‘own personal matter.’ Not claiming to speak for others he nonetheless offers

192 On testimony as survival, see Lawrence Douglas, The Memory of Judgment: Making Law and History in the Trials of the Holocaust (Yale University Press, 2001); Laub, above n 50; Primo Levi, If This Is a Man, and The Truce (Stuart Woolf trans, Sphere Books, 1987) [trans of Se questo è un uomo (first published in 1947)]; Eric Stover, The Witnesses: War Crimes and the Promise of Justice in The Hague (University of Pennsylvania Press, 2005). On the ECCC specifically, see Ciorciari and Heindel, above n 7; Stover, Balthazard and Koenig, above n 7. 193 Duch Trial Transcripts, 26 June 2009, 54. 194 Ibid. 103. 195 Ibid.

Becoming participant 137 his speech if it is needed.196 In his explanation of the reasons for not applying to become a civil party appears someone who does not need to claim legal victimhood as his suffering has not been questioned. For others, becoming a civil party has been a way to navigate the turbulent path of appearing as someone who was victimised by the Khmer Rouge regime. In this way, the application to become a civil party operates as a starting point for a transition to articulate suffering that made one a victim. As seen in the testimony by Chum Neou, testifying as a civil party is in this way a claim of victimhood and the Court an authoriser. In her testimony, Neou spoke of how she joined the Khmer Rouge revolution in 1971 ‘because [she] was very angry being under the American imperialists and capitalists, and . . . joined the revolution to liberate our country from those people’.197 During the regime, her husband was taken away for ‘re-education’ to never be seen again and her son died because of lack of proper medical treatment. She blames the ‘upper echelon’ of the regime.198 When the time for questioning comes to the defence, she is challenged as to her role during the regime. Had she not been someone with responsibility? Had she not been a company leader? And is it not ‘accurate to say that as a soldier [she] loyally served the army?’199 Neou explains, my active participation[] [was] from the beginning of the war until the liberation and finally I was in such a position with such great loss, I was furious why those people – I would say the tricksters or the cheaters – why they behaved in that fashion. I lost everything and only I myself survive[d].200 The complexity of responsibility and suffering, and the way the ECCC functions as a pathway for transition, are further brought out when she is asked whether villagers still consider her a ‘member of the Khmer Rouge’.201 In answering, she describes how her mother was furious at her, and how she again and again has apologised to her mother and to her aunt, but they could not accept it – just as Duch had apologised but she could not accept it. Finally, she explains how she

196 Outside the court, Vann Nath’s decision to not apply to become a civil party and his reasons for it attracted admiration. When Vann Nath died a couple of years later, DC Cam director Youk Chhang wrote that Nath ‘understood that his primary duty was to provide testimony for subsequent generations of Cambodians to learn from. This reflected a concept of justice that focuses on the future of humanity, rather than temporary individual desires for retribution, revenge or remuneration.’ Youk Chhang, DC Cam Letter of Condolence for Vann Nath – Vann Nath: Witness of History (5 September 2011) Cambodia Tribunal Monitor, www.cambodiatribunal.org/sites/ default/files/DCCam%20Letter%20of%20Condolence%20for%20Vann%20Nath.pdf. 197 Duch Trial Transcripts, 24 August 2009, 37. 198 Ibid. 31. 199 Roux: ibid. 40. 200 Chum Neou: ibid. 41. 201 Roux: ibid. 42.

138  Becoming participant lodged the complaint to be a responsible person on behalf of my relatives who were victims of the crimes at that regime, to prove that I am not a member of the Khmer Rouge and I am responsible and that I am loyal to the nation. And that I felt betrayed by that group. Applying to become a civil party and then give testimony is here a way of enacting and becoming a ‘responsible person’. In the complex grey zone202 between victim and perpetrator, giving testimony is a way of saying I too suffered, I too am a victim. Here, the ECCC trial operates as the institution that enables, authorises the presentation as victim. The testimonies by Bizot, Nath and Neou illustrate different ways in which appearing as a testifier proceeds as a practice of victim representation. They illustrate how individuals (are to) perform as victims, the norms of how a victim should speak and should act, and the ways in which each individual challenges these norms. From speaking from a position as a victim, to a position of speaking on behalf of victims, the testimonies demonstrate how victims are represented through testimony. While illustrating what to speak of, the testimonies do not show how to speak as a victim during trial. To this question, I now turn. Bearing witness Towards the end of the trials at the ECCC, a few sessions are dedicated to hearing civil party statements on suffering. These civil parties are chosen by the civil party lawyers to act as representatives of the many victims. The invitation is to give a ‘statement of suffering, [of] the harms . . . suffered psychologically and physically;’203 and to describe ‘the damages inflicted . . . physically and emotionally as a direct result of the [alleged] crimes’.204 Although civil parties are, as I noted above, just like witnesses questioned about facts and prompted to perform as testis, there is also something else going on when these civil parties speak. As persons invited to narrate their experiences of suffering, they are to some extent invited to perform as superstite. As I describe here, however, while this invitation does accord the testifier space to appear in the Chamber as a victim speaking on issues that would be considered irrelevant judicial facts, the appearances nevertheless remain strictly guided and regulated. I am not suggesting that the Court provides the only or a superior space for testimony,205 or that it should do so. Rather, it is exactly because the Court does not provide such a superior space206

202 See Chapter 1. 203 Typical example of wording from the second trial. See, for example, Case 002/01 Trial Transcripts, 27 May 2013, 69. 204 Typical example of wording from the trial against Duch. See, for example, Duch Trial Transcripts, 18 August 2009, 6–7. 205 For an overview of forms of witnessing to the Khmer Rouge, see Stéphanie Benzaquen, ‘Witnessing and Re-enacting in Cambodia: Reflection on Shifting Testimonies’ (2012) 27(1) AI and Society 43. 206 See Chapter 1.

Becoming participant 139 that the invitation to speak on suffering calls for attention: How can victims bear witness to suffering within a trial? The civil parties appearing during this stage of the trials are often given some leeway in narrating their stories. Some give lengthy statements without any interruption,207 while others tell their story with the help of questions posed by their lawyers.208 But although they are less restricted than is often the case when questioned about facts, they are carefully guided in how they express their suffering. The statements need to be emotional, but not too emotional; express suffering but remain coherent and consistent; and describe trauma but not display trauma. Significantly, the suffering must be expressed verbally. In the first trial, the requirements of the testimonies constructed a role of testifier difficult to embody. Many testimonies were emotional, and it took some time for the bench to work out how to deal with this. When the first civil party to appear broke down sobbing, the judges showed little sympathy for his affective state and urged him instead repeatedly to ‘recompose himself’.209 In the testimonies that followed, somewhat more space was given but displays of emotions still prompted intervention. Sobbing civil party and S-21 survivor Bou Meng was prompted by Presiding Judge Nil Nonn to ‘please try to recompose’ himself to be in a better position to speak, and urged to ‘not let your emotion overwhelm you.’ Although the bench explicitly noted the ‘unjust acts’210 Bou Meng had experienced, the questioning continued promptly. Afterwards, a trial monitor argued that the ‘Chamber’s reactions to these displays of distress raise[d] serious concerns over its apparent lack of empathy for witnesses who may require additional psychological support.’211 It seemed as if all were taken by surprise by the emotional displays. When a civil party lawyer asked for some flexibility with respect to an emotional testifier, the judges responded with thinly disguised frustration that a prior assessment ought to have ensured that only those who were ‘able emotionally’ would appear.212 And indeed, several civil party lawyers later described how surprised they had been that their clients were challenged and cross-examined.213 At times, the judges allowed short breaks for the testifier to recompose,214 but often even difficult testimonies continued, under the auspices of a need for a speedy trial. This demand for a speedy trial, in accordance with the rights of the accused and the financial pressure of the Court, meant that emotional displays could not interfere with the trial process and its progress. Testimonies needed to proceed and the testifiers must be able to speak.

207 208 209 210 211

See, for example, Sou Southeavy and Aun Phally: Case 002/01 Trial Transcripts, 27 May 2013. See, for example, testimony by Sang Rath: Case 002/01 Trial Transcripts, 27 May 2013, 57. Duch Trial Transcripts, 30 June 2009, 65. Duch Trial Transcripts, 1 July 2009, 14. KRT Trial Monitor C001 – Issue No 11 (Week Ending 5 July 2009) (5 July 2009) KRT Trial Monitor 5, https://krttrialmonitor.files.wordpress.com/2012/07/aiji_eccc_case1_no11_ 05july09_en.pdf. 212 Duch Trial Transcripts, 9 July 2009, 53. 13 Stover, Balthazard and Koenig, above n 7, 22. 2 14 For example, during Norng Chan Phal’s testimony. See Duch Trial Transcripts, 2 July 2009. 2

140  Becoming participant In the second trial, both the judges and the parties seemed better prepared. Before the civil parties were to give statements, Civil Party Lead Co-Lawyer Simonneau Fort pleaded with the Court: ‘testifying here will be . . . something quite painful . . . Sometimes there might be too much pain that will be expressed beyond what some of us might find “suitable.”’215 Yet, compared with the first trial, notably little in the second trial was challenged as to its ‘suitability’. Instead, what comes out from the testimonies is the significance of verbal expression. Expressions of pain could be heard and registered by the Court but only as long as they were expressed verbally. In this way, testifiers were asked in questions by their lawyers to orally express and articulate their pain. The exchange between civil party testifier Sou Southeavy and her lawyer Sin Soworn is illustrative of this need for verbal expressions of pain.216 Lawyer Sin Soworn: What is the cause of the suffering or pain that has resulted in your daily life? Civil Party Sou Southeavy: The pain – the suffering has taken its toll. I cannot sleep very well; indeed my sleep has been deprived because of this and I normally have some high temperature, fever. I feel dizzy and have constant headache. I have no access to medicine. Indeed, this has been the result of the mistreatment, the kind of rabbit pellets that were offered to me when I fell ill during the regime, that didn’t help me. Sin: Thank you. Can you also tell the Chamber, please, regarding your psychological harms you endured or you have suffered? Sou:  Words cannot be used to describe the great suffering I have had because I am an orphan now as the result of the regime. That’s all I can tell. The pain is too great. Sin: Thank you. Registered in this verbal exchange is an articulation of suffering. Physical suffering is put in terms of a lack of sleep, dizziness, fevers – words possible to relate to. Even the statement on her mental suffering – that there is a limit to what can be expressed through words – is possible to express verbally, as an excess, and it is thereby registered. Her statement on suffering reads in the trial transcript as factual and concise, almost dry. The questions posed are carefully directed and the replies come with assertion. What does not show in the transcripts is the emotional struggle taking place. In the video from the trial, however, it is possible to discern how tears flow during the testimony, and how a support person is throughout the testimony seated in close proximity, providing a physical presence of support.

215 Case 002/01 Trial Transcripts, 27 May 2013, 8–9. 216 Ibid. 17–18.

Becoming participant 141 At times, the testimony overwhelms the speaker. For the spectator or indeed for the academic who observes the exchange from a distance, the continuing questions appear unnecessary when the tears are so expressive. But if the statement of suffering is to be heard and registered by the law, the expression of suffering must be spoken. Bodily expressions slip through despite stipulations to control emotions, control the body, but these are not registered by law unless verbally reprimanded. While tears do speak and bodies do express, the testifier in the courtroom must narrate suffering orally for it to be registered in the legal records. Spectators may see and hear the bodily expressions of suffering but not law. Bodily expressions of suffering cannot be registered. While emotional displays of sorrow, grief or distress were met with some consideration, especially if they were verbally expressed, there was no toleration for venting anger or feelings of revenge. In the first trial, several testifiers addressed part of their testimony directly to the accused, and vented feelings of anger against the person responsible for their suffering. This provoked immediate interjections by the presiding judge. At a point in the testimony by S-21 survivor Chum Mey, he became very agitated and emotional when describing the torture he experienced, stating that if it had been Duch who had conducted the torture in person, Duch would not have remained alive.217 Presiding Judge Nil Nonn immediately intervened, saying that although they appreciated Chum Mey’s testimony, he needed to ‘be well-behaved and make sure that you [are] more ethical.’218 Similarly, civil party Robert Hamill, whose brother Kerry was killed at S-21, described for the Court how hard it had been to come and to testify. He became emotional, directed his words to Duch and described how he had ‘wanted to smash you . . . imagined you shackled, starved, whipped and clubbed viciously – viciously . . . What you did removed you from the ranks of being human.’219 Judge Nil promptly intervened to ‘remind Mr Robert Hamill to refrain from using some very strong words that tend to be abusive’, as the courtroom is not a venue for revenge.220 Similarly, when invited to pose questions to the accused, civil party Neth Phally is urged by Judge Nil to ‘please be reminded that, as a civil party, be ethical and professional as a civilized person. Please avoid using this venue as the place where you seek vengeance.’221 Expressions of vengeance or anger are excessive to the hearing. These calls for ‘ethical behaviour’ indicate a limitation to the representation of a victim bearing witness. It suggests that while testifiers are invited to share their harm and suffering, the victim is expected to remain in control of its emotions and to be rational.222 Anger disturbs the expectations of how a victim conducts 217 218 219 220 221 222

Duch Trial Transcripts, 30 June 2009, 12. Ibid. Duch Trial Transcripts, 17 August 2009, 104–5. Ibid 107. See also Ciorciari and Heindel, above n 7. Duch Trial Transcripts, 18 August 2009, 108. On law and emotions, see also: Hannah Arendt, On Revolution (Penguin Books, first published 1963, 2006 ed) 70–9; Hannah Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil (Penguin Books, first published 1963, 2006 ed) 261, 266; Sonali Chakravarti, ‘Agonism and the Power of Victim Testimony’ in Alexander Keller Hirsch (ed), Theorizing Post-Conflict Reconciliation: Agonism, Restitution and Repair (Routledge, 2012) 17; Dahlberg, above n 25, 176.

142  Becoming participant him/herself appropriately and accordingly, any expression of anger or any other bodily expressed emotion is suppressed or silenced. The victim’s statement is structured by order and reason and is in this way possible to be heard by the Court and by law. To appear as a victim, speaking before the law, any desire for vengeance must be curtailed as justice demands moderation and does not permit anger. These three testimonies indicate some of the boundaries in the representation of victim testimony at the ECCC. This testimony is carefully guided and structured, so that the person remains within the confinement of both the legal and social expectations of how a victim acts. While the spectator raised questions of embodiment and the civil party brought into light the relations between represented and representatives, the testifier manages both these questions. The carefully regulated embodiment also performatively constitutes the relation to other victims. Through the testimony, the person comes to speaks as a victim as well as on behalf of victims.

Participating as victim during trial Trials do indeed do many things. They are sites for the performance of law, its dramatisation, as well as the performative constitution of law, the enactment of its authority. Significantly, trials are also sites for victim representations. And just as the operations of trials are multiple, the representations of victims during trials are manifold. Through the practices of trial, there is not just one but several victim figures that come into view. In this chapter, I have traced three roles through which victims are brought before the trial as participants: visitor/spectator, civil party and testifier. Victims are represented during trials in both senses of the word. Victims appear as represented beings with a representative to act on their behalf. At times, this representative is another victim, speaking on behalf of all those who could not be there. Other times, there is a lawyer who is to ‘exercise’223 the rights of the victim. Yet, when I begin to trace the relation between the speaker before the bench and the victim, I lose track of the author, the act of authorisation. It seems that at times, the relations through which victims figure that I keep on referring to in the book cannot be made formal or explicit. Victims are also constituted through trial participation. At times, this is practically outspoken, such as when Chum Neou testifies as a civil party, speaking of her suffering. At other times, victim subjectivity comes into view more subtly. A visitor is invited in an invitation that goes out to the larger community in which so many consider themselves victims. When sitting down inside the Trial Chamber, the visitor becomes a spectator and while bearing witness to the event of law, the collective of spectators also becomes a collective of victims: ‘we suffered’. There is a circularity here, the victim always appearing ‘already’. 223 ECCC Internal Rules r 23 ter (2).

Becoming participant 143 Victims participate at ICTs, but the way they do so depends upon a range of specific rules and regulations. Some of these are explicit, found in documents such as the Internal Rules, whereas others are cannot be found in written documents but in the court architecture or norms regulating what expressions of emotions are acceptable during testimony. The close reading of victim participation at the ECCC demonstrates just how specific the practices that regulate representation are. This means that my description of the practices is only representative of the institutions of ICJ to the extent that they demonstrate the need to pay attention to the particular. The way victims figure in ICJ through participation relies upon the specific rules and regulations that may differ from court to court. Just as the representations of the victim are manifold inside the ECCC, so are they within the citational network of ICJ. Consider a few other institutions and their practices of victim participation: Also at the ICC has there been much attention to the question of victim participation. Yet, despite the attention to the possibility for victims there to present their ‘views and concerns’ at ‘appropriate times’,224 very few victims have in fact been invited to do so. That is, very few victims have appeared before the ICC in their role as victims. By the end of its third trial, only a handful of victims had been allowed to speak during the proceedings.225 This stands in stark contrast to the number of civil parties who have testified at the ECCC, which after three trials reached 116.226 The question that needs to be asked with regards to the ICC is thus whether the provisions for presenting views and concerns is limited to legal representation. Around the same time as the ad hoc tribunals were set up was the South African Truth and Reconciliation Commission (TRC) instituted. As a commission, the TRC was set up in 1995 to promote national unity and reconciliation through investigations and hearings into gross violations of human rights during apartheid.227 Here, victim testimony was central, something that helped spark the interest in testimony in ICJ.228 At the TRC, the testimonies proceeded within a set framework. Through questions and comments, the testimonies were framed so that at the end of a person’s testimony, s/he would express his/her forgiveness. Anger or refusal to forgive was discouraged, ‘sometimes to the point of deafness.’229 At the TRC, reconciliation was premised upon forgiveness. This stands in contrast to both the understanding of reconciliation and the framing of

224 See Rome Statute art 68(3), and Chapter 1 of this book. 225 Sara Kendall and Sarah Nouwen, ‘Representational Practices at the International Criminal Court: The Gap between Juridified and Abstract Victimhood’ (2014) 76 Law and Contemporary Problems 235, 251–2. 226 Case 001, ECCC, www.eccc.gov.kh/en/case/topic/1; ECCC Public Affairs Section, above n 159; Factsheet Case 002/02, above n 159. 227 Promotion of National Unity and Reconciliation Act 1995 (South Africa). 228 See Chapter 1. 229 Jill Stauffer, ‘A Hearing: Forgiveness, Resentment and Recovery in Law’ (2012) 30(3) Quinnipiac Law Review 517, 518.

144  Becoming participant testimonies at the ECCC. Also at the ECCC is reconciliation an expressed aim230 and also here have expressions of anger been discouraged, managed and silenced. But here, forgiveness has never been actively promoted. This was particularly obvious during the trial against Duch, who would frequently express remorse and seek forgiveness. But those who testified were never encouraged to do so, and in fact, many actively denied Duch any forgiveness. Instead, Duch’s repeatedly expressed apologies would instead be left hanging, unanswered. Against these differences, there are some practices of victim testimony that seem to exceed any particular institutional barriers. One of those is the expectation for the victim testifier to appear rational and to express his/her suffering in words. Whereas the exchange between Sou Southeavy and her lawyer illustrates how this can be achieved, a well-known example of a testimony where the expectations are simply excessive is that by Ka Tzetnik at the Israeli trial against Adolf Eichmann. Faced with the impossible demand of testifying in the present about his experiences at Auschwitz, Ka Tzetnik was only able to, somewhat incoherently, refer to Auschwitz as ‘another planet’ before he collapsed into unconsciousness.231 It is partly in reference to his testimony that Shoshana Felman offers a definition of victim, based on an understanding that a ‘victim is . . . not only one who is oppressed, but one who has no language of his own, one who, quite precisely, is robbed of a language with which to articulate his or her victimisation.’232 In her account, it is precisely that which cannot be captured in a legal setting or by law that makes someone a victim. Implicit in her definition is that there are distinctions amongst ‘victims’, between those who have a forum to express their pain and those who are denied one, and that the latter suffers worse. The ECCC is one such forum in which expression of suffering take place, but this is done in very particular ways, most of which provide relations that are not only between the institution and the victim inside the Court, but also those who remain outside. In this way, representation is as multifaceted as victims.

230 ECCC Agreement Preamble. 231 Several authors have provided accounts of the collapse. See, for example, Arendt, Douglas, Felman, Wievorka, Bachman. As Bachman details, Ka Tzetnik described his experience of testifying in an interview with Tom Segev as being caused by the pressure to admit to himself and to the world that the living person who goes by the name of De-Nur and the poet and Holocaust survivor Ka Tzetnik were the same. 232 Shoshana Felman, ‘Theaters of Justice: Arendt in Jerusalem, the Eichmann Trial, and the Redefinition of Legal Meaning in the Wake of the Holocaust’ (2000) 1 Theoretical Inquiries in Law 465, 497. In reference also to Lyotard’s differend.

5 Photographs and outreach Relating victims to images

Introduction In a scene in a film1 made by the Public Affairs Section (PAS) of the Extraordinary Chambers of the Courts of Cambodia (ECCC), a woman stands at the Tuol Sleng Genocide Museum (henceforth ‘Tuol Sleng’). In front of her is a board of photographs that were taken as mugshots when the place was the Khmer Rouge security centre S-21. The film, narrated in Khmer but with English subtitles, is a short documentary about the ECCC’s outreach work and the impact it has on Cambodian society to – as the ECCC slogan says – ‘move forward through justice.’ In the scene, Ou Chearm tells the Chief of PAS Dim Sovannarom that by accident she has spotted the photograph of her brother. The camera closes in on her face as she says that she wishes the Court ‘to bring justice for my brother’s death.’ While the camera zooms in on the photograph, depicting a young man with a fringe hanging to the side, she describes how she ‘remember[s] when he left, he was 15 years old but I recognized him straight away.’ The camera turns to another woman, Sa Rim, who says that she found photos of her brother and her uncle’s family. ‘I do not know how suffering [sic] they got. When I think of this, I feel so painful and have pity on them. I do not know how he was beaten, and starved.’ After the women’s statements, the camera turns again to Dim Sovannarom, who is standing before another camera crew. ‘The Khmer Rouge Tribunal,’ he states to that camera, ‘does not only provide justice to the victims, but the truth that victims found their missing relatives like today.’2 The film documents the ECCC’s work with outreach, a component of international criminal justice (ICJ) that has increasingly been presented as key for

1 Extraordinary Chambers in the Courts of Cambodia, Moving Forward Through Justice (8 September 2010) YouTube, www.youtube.com/watch?v=gbRX4khXp_0 (‘ECCC, Moving Forward Through Justice’). 2 Ibid.

146  Photographs and outreach the success of a court or tribunal.3 Outreach ensures that court practices are not confined to the building where the proceedings take place, but go beyond the chambers, ‘extend[ing] [the practices] beyond the courtroom’.4 In ICJ, outreach generally involves activities that seek to make the judicial proceedings transparent and the public engaged as active participants in the justice enterprise.5 In addition to these components of transparency and engagement, there is at the ECCC an understanding that its work is ‘not just about bringing justice to Cambodians, but also about giving people the opportunity to confront a dark chapter of the country’s history.’6 For this purpose, PAS organises a Study Tour that regularly brings members of the Cambodian public – villagers and urban dwellers, students and elderly – from around the country to Phnom Penh. Here, they visit Tuol Sleng and the Choeung Ek Killing Fields, as well as the ECCC compound. The tour seeks to provide the means for participants to learn about the past and thereby to ‘move forward’. In other words, there is an interactive, didactic component at the ECCC, explicitly organised through its outreach work, that goes beyond informing the public on what occurs inside the courtroom (‘bringing’ the proceedings, ‘bringing justice’ from the Court to the public) and beyond engaging the public by bringing them to the Court (as seen in the previous chapter). Indeed, through outreach, Cambodians are interpellated as participants in the attempt to ‘face the past’. Through the ECCC outreach work, a victim survivor emerges who, by facing the past, is able to ‘move on’. As the ECCC victim moves beyond the courtroom, to learn about the past, a figurative meeting takes place. Moving outside the compound, beyond the particular construction of the crime victim and the victim participant, the outreach participant-victim is faced with another victim. Travelling to Tuol Sleng, the ECCC outreach victim meets the crime victim from Case 001 who here figures in the photographs that hang at the museum. This latter victim, who was

3 Janine Natalya Clark, ‘International War Crimes Tribunals and the Challenge of Outreach’ (2009) 9(1) International Criminal Law Review 99; Marlies Glasius, ‘“We Ourselves, We Are Part of the Functioning”: The ICC, Victims, and Civil Society in the Central African Republic’ (2009) 108(430) African Affairs 49; Peter Manning, ‘Governing Memory: Justice, Reconciliation and Outreach at the Extraordinary Chambers in the Courts of Cambodia’ (2012) 5(2) Memory Studies 165; Peter Manning, ‘Legitimacy, Power and Memory at the Extraordinary Chambers in the Courts of Cambodia’ in Nicola Palmer, Phil Clark and Danielle Granville (eds), Critical Perspectives in Transitional Justice (Intersentia, 2012) 217; Diane F. Orentlicher, That Someone Guilty Be Punished: The Impact of the ICTY in Bosnia (Open Society Institute, 2010) 102; Norman Henry Pentelovitch, ‘Seeing Justice Done: The Importance of Prioritizing Outreach Efforts at International Criminal Tribunals’ (2008) 39(3) Georgetown Journal of International Law 445; Victor Peskin, ‘Courting Rwanda: The Promises and Pitfalls of the ICTR Outreach Programme’ (2005) 3(4) Journal of International Criminal Justice 950; Jaya Ramji-Nogales, ‘Designing Bespoke Transitional Justice: Pluralist Process Approach’ (2010) 32 Michigan Journal of International Law 1; Eric Stover and Harvey M. Weinstein (eds), My Neighbour, My Enemy: Justice and Community in the Aftermath of Mass Atrocity (Cambridge University Press, 2004). 4 ECCC, Moving Forward Through Justice. 5 Peskin, above n 3, 954. 6 ECCC, Moving Forward Through Justice.

Photographs and outreach 147 photographed when entering the building when it was the Khmer Rouge security centre S-21, has a long trajectory of representing – in the sense of ‘standing for’7 – the victims of the Khmer Rouge regime. The ECCC outreach victim figures in relation to this victim. Through outreach, the photographs are employed to teach Cambodians about the past, and become part of a didactic practice that is meant to make victim survivors participants in a larger transitional justice endeavour. In preceding chapters, I have traced the practices of victim representation from the establishment of a court, to the pre-trial articulation of crime, to trial participation. This present chapter attends to the figuration of victims through and in relation to images employed in outreach. Through ECCC outreach, the person who participates in the ECCC Study Tour is faced with the victim in the Tuol Sleng photographs. In examining this meeting, I present two arguments, one in relation to the photographs at Tuol Sleng and one in relation to outreach. What holds these two arguments together is the victim, and the way two victim figures meet through the ECCC outreach tour at Tuol Sleng. By reading these two figurations alongside each other, we get a fuller understanding of the way representation of victims relates ICJ to transitional justice. While outreach involves more than the Study Tour and the Study Tour involves more than Tuol Sleng,8 my argument in this chapter focuses on the way victims are constituted in relation to the photographs at Tuol Sleng. While the different sections of the Court (like the different chambers and PAS) differ in the way they take on a didactic role,9 what interests me here is this explicit didactic component of the outreach program and how activities are organised with the specific aim of teaching the public about the Democratic Kampuchea (DK) period. The Study Tour is framed as epistemological, that is, that it leads to more verifiable knowledge and the ‘truth’ about the past. However, as I explain, there was for a long time little at Tuol Sleng that provided verifiable knowledge, knowledge beyond what a person experiences through the visit. Instead, I believe the ECCC Study Tour is better understood if framed in terms of ontology in that the encounter with the photographs at the museum becomes a practice that constitutes the visitor as a participant of transitional justice. By having borne witness to the mass deaths at S-21, by having confronted a dark past, the outreach participant-victim is (meant to be) able to move on. The ECCC proceeds with this aim by way of facilitating a confrontation, ‘facing the past’ something that resonates with the movements envisioned in transitional justice (i.e. from authoritarian to democratic regime,

7 Hanna Fenichel Pitkin, The Concept of Representation (University of California Press, 1967) chapter 5. 8 See Manning, ‘Governing Memory’, above n 3. 9 On didactic functions of trials, see Lawrence Douglas, The Memory of Judgment: Making Law and History in the Trials of the Holocaust (Yale University Press, 2001); Mark Osiel, Mass Atrocity, Collective Memory, and the Law (Transaction Publishers, 1997); Gerry Simpson, ‘Linear Law: the History of International Criminal Law’ in Christine Schwöbel (ed), Critical Approaches to International Criminal Law: An Introduction (Routledge, 2014) 159.

148  Photographs and outreach from past to present, from human rights violations to rule of law, etc.). And so I ask, how exactly do photographs teach a past? What past is taught through the photos? And how do victims figure in this didactic endeavour? This chapter begins with outreach and how the ECCC outreach program interpellates a victim survivor who is to face its past. I then turn to the photographs hanging at Tuol Sleng and trace the movement of the photographs across contexts and genres, and the way they have come to represent victims of the Khmer Rouge regime. In the third section, I bring these together in the encounter between the victim survivor, participating in the ECCC Study Tour, and the victim in the photograph.

Outreach Outreach sections of international criminal courts and tribunals (ICTs) extend the legal practices beyond the chambers of the courts. By providing channels of information and as a forum for dialogue and feedback between the court and the affected communities, it involves both activities that take the court ‘out’ to the public, and activities that bring the public ‘in’ to the court.10 In this way, outreach acts as both a medium for information dissemination and dialogue, and a mechanism that triggers further activities. As such, outreach proceeds as a link between the judicial activities and what is perceived as broader transitional justice endeavours. This is the case also at the ECCC. Through its outreach work, the ECCC interpellates a victim survivor who partakes in the movement for justice. Outreach as information and engagement Outreach seeks to operate at international(ised) criminal courts and tribunals to ensure that justice is not only done but also seen to be done.11 By ensuring that the proceedings are transparent and comprehensible, outreach activities seek to make the court and its decisions accessible for affected communities and the larger public. Furthermore, by engaging communities that have been affected by the crimes adjudicated through invitations to attend either the court itself or community meetings, outreach seeks to act as a mechanism that produces a lasting legacy of the proceedings.12 In this way, outreach links court proceedings with community transitions. Through outreach, victims and communities

10 Wendy Lambourne distinguishes between outreach, understood as education and informing the public, and ‘inreach’, understood as ‘obtaining ideas, opinions and feedback from local populations’. Wendy Lambourne, ‘Outreach, Inreach and Civil Society Participation in Transitional Justice’ in Nicola Palmer, Phil Clark and Danielle Granville (eds), Critical Perspectives in Transitional Justice (Intersentia, 2012) 235, 238–9. 11 Initially stated by Lord Hewart CJ in R v Sussex Justices; Ex parte McCarthy [1924] 1 KB 256, 259 in the context of conflict of interests. Since then, it is also referred to in contexts of open justice and public courts. 12 On ‘transparent’ and ‘engagement’, see Peskin, above n 3, 954.

Photographs and outreach 149 are interpellated as participants not simply of the judicial process but, just as importantly, as engaged participants in the transitional justice enterprise. Before attending to outreach at the ECCC, let me begin with the development of outreach in ICJ more broadly. Outreach first became an established part of ICJ courts and tribunals at the international criminal tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR). When the ICTY began operating, it was simply assumed the judgments would speak for themselves.13 Outreach was not part of its activities and little was done to engage the communities. Both the ICTY and the ICTR operate far from the communities affected by the crimes in question and few have been able to travel to The Hague or Arusha. The distance between the tribunals and the communities and the lack of outreach created a void that was filled by voices critical of the courts. As a result, rumours and misunderstandings about the tribunals began to spread. It was only four and five years, respectively, after their establishments that outreach activities were organised. By then, misconceptions and negative voices were abundant.14 Alongside the lack of victim participation programs, this lack of an early outreach program has been presented as having contributed to the low levels of support at certain times and places amongst some affected communities.15 While outreach work has since been organised by both tribunals, the lateness of the ICTY and ICTR in organising outreach has been used as warnings for later courts and tribunals in how to influence and shape their legacies. In stark contrast to the ICTY and ICTR, outreach at the Special Court for Sierra Leone (SCSL) was ‘designed to make Sierra Leoneans aware of the Court’s work, to assist significantly in the missions of generating a sense of “justice” being done in a transitional setting, and, thereby, fostering peace and security in a post-conflict environments.’16 As a result, it has been presented as ‘the jewel in the crown’ in the work of the court.17 Like elsewhere, outreach has been perceived at the SCSL as both a medium for information dissemination and a mechanism for lasting legacies. The experience from the SCSL indicates that outreach will never replace the judicial proceedings inside the chambers but remain dependent on these. Jessica Lincoln argues that the SCSL’s outreach has been ‘widely regarded as a major achievement in itself, and a success in practice’.18 Nevertheless, the initially strong bonds between the court and civil society that enabled this success somewhat deteriorated in later times as a perception

13 Orentlicher, above n 3, 102. 14 Refik Hodžić, ‘Living the Legacy of Mass Atrocities, Victims’ Perspectives on War Crimes Trials’ (2010) 8(1) Journal of International Criminal Justice 113. 15 James Cockayne, ‘Hybrids or Mongrels? Internationalized War Crimes Trials as Unsuccessful Degradation Ceremonies’ (2005) 4(4) Journal of Human Rights 455; Orentlicher, above n 3; Ramji-Nogales, above n 3; Stover and Weinstein, above n 3. 16 Jessica Lincoln, Transitional Justice, Peace and Accountability: Outreach and the Role of International Courts after Conflict (Routledge, 2011) 1. See also Clark, above n 3. 17 Lincoln, above n 16. 18 Ibid. 1.

150  Photographs and outreach grew that that the court was not delivering.19 As important as it is to ensure the proceedings are transparent and to provide information and opportunities for engagement, the judicial proceedings remain core in determining ‘success’. As its ad hoc predecessors, the permanent International Criminal Court (ICC) conceives of outreach as a combination of medium of information sharing and mechanism for engagement. As such, it emphasises that providing accurate information to communities affected by the crimes adjudicated is important as it can ‘clarify misperceptions and misunderstandings and to enable affected communities to follow trials.’20 Outreach here facilitates or enables understanding, operating as a ‘mechanism to ensure that affected communities can understand’.21 Furthermore, outreach provides for the ICC opportunities for engagement. As the ICC explains on its website, although the court ‘is not on the doorstep of those most affected by the cases it hears . . . [it] strives to bridge the distance between the Court and these communities and to make its proceedings accessible to them.’22 This is particularly the case of victims and their communities: ‘No matter how far victims might be from the Court, the ICC endeavours to reach out and engage with them and their communities.’23 What comes out as key in ICC outreach then is the way it provides a ‘bridge’ as the judicial proceedings are conceived of as firmly anchored at one place, and any sites of significance for the proceedings as elsewhere. To turn to the ECCC then. In the organisational structure of the ECCC, the responsibility for outreach is shared by PAS and the Victims Support Section (VSS, initially called the Victims Unit). Over the course of its existence, PAS has engaged in a number of activities: it has published stickers, booklets and brochures in Khmer and English that provide information about the Court as well as about trauma; it issues a monthly Court Report that features articles about developments in and around the Court; it has produced weekly radio programs with highlights from the proceedings and a call-in feature enabling listeners to raise issues or ask questions of invited guests; and it maintains a website24 featuring articles, information and a depository from which public ECCC documents such as decisions and submissions can be downloaded. Meanwhile, the VSS is charged with promoting and facilitating the participation of witnesses and civil parties in the proceedings. Furthermore, both PAS and the VSS organise community meetings. At times, ECCC lawyers take part in these gatherings and respond to questions from the public. These are events presented to provide information,

19 Ibid. 143. 20 ICC, ‘Outreach’, www.icc-cpi.int/en_menus/icc/structure%20of%20the%20court/outreach/ Pages/outreach.aspx. On the ICC’s outreach activities, see, for example, Glasius, above n 3, 67. 21 ICC, Assembly of States Parties, Strategic Plan for Outreach of the International Criminal Court, 5th sess, Doc No ICC-ASP/5/12 (29 September 2006) 3. 22 ICC, Interacting with Communities Affected by Crimes, www.icc-cpi.int/about/interacting-withcommunities. 23 Ibid. 24 ECCC, www.eccc.gov.kh/en (English version).

Photographs and outreach 151 address rumours and correct any misconceptions. Whereas written and electronic information enables the public and others to follow the proceedings from afar, it is less significant in the rural parts of the country where illiteracy is still rampant and electricity scarce.25 Here it is instead the community gatherings, the posters and the Study Tour that have provided the bulk of the Court’s outreach work. During the Court’s early days, little funding was allocated to outreach efforts. In its first year of existence, the then Victims Unit had no funds allocated specifically to outreach. As a result, the task of outreach was instead picked up by non-governmental organisations (NGOs), who, funded by donors such as the European Union, France, Germany and the Open Society Justice Initiative, sought to engage broader communities with information about the Court and ways of participating.26 With their already well-established networks in local communities, the NGO initiatives provided relief for a Court already faced with multiple activities and a strained budget.27 NGOs like the Documentation Center of Cambodia (DC Cam), Cambodian Human Rights Action Committee (CHRAC), Khmer Institute of Democracy (KID), Center for Social Development (CSD) and Cambodian Defenders Project (CDP) were therefore central in raising the public’s awareness about the Court and of ways of becoming involved.28 Community meetings were held, pamphlets were printed and information was distributed on how to become more active as either a complainant or civil party. This reliance on NGOs for outreach was met with variegated responses. For some, the multiplicity of actors was concerning because it raised a risk of incoherent or inconsistent information, and more fundamentally because it was questionable whether relying on non-court actors to disseminate information about the judicial process was appropriate.29 Others instead welcomed the multiplicity as it decentralised the activities and enabled more people to be involved in the process,30 something that could potentially also be more sustainable given the fixed temporality of the Court.31 Yet, although the NGOs’ involvement has at times been presented as a form of ‘localisation’ or ‘democratisation’ of the process, it serves to point out that also the NGOs operate in an internationalised 25 See discussion by Pentelovitch, above n 3. According to Youk Chhang, there was an overreliance at an early stage upon electronic information: interview with Youk Chhang, Phnom Penh, 5 July 2011. 26 Helen Jarvis, ‘Trials and Tribulations: The Long Quest for Justice for the Cambodian Genocide’ in Simon M. Meisenberg and Ignaz Stegmiller (eds), The Extraordinary Chambers in the Courts of Cambodia (Asser Press, 2016) 32–3. 27 John D. Ciorciari and Anne Heindel, Hybrid Justice: The Extraordinary Chambers in the Courts of Cambodia (University of Michigan Press, 2014) 236–7. 28 See Chapter 4; ibid. 236–7; Lambourne, above n 10; Christoph Sperfeldt, ‘Cambodian Civil Society and the Khmer Rouge Tribunal’ (2012) 6(1) International Journal of Transitional Justice 149; Pentelovitch, above n 3, 470. 29 For a thorough engagement with the interrelation between the ECCC and NGOs, see Sperfeldt, above n 28, 152–3. 30 Lambourne, above n 10, 251–3. 31 Sperfeldt argues that to engage NGOs ‘would help to strengthen local ownership and build specific capacities among NGOs’: Sperfeldt, above n 28, 160.

152  Photographs and outreach field, one that proceeds with its own logic and where the activities rely on external donor grants.32 Regardless of who provides the activities however, the ECCC is presented as a trigger that generates further activities amongst the communities. In this way, outreach extends the judicial process, involving more activities and interpellating more victim survivors. Since 2008, PAS has organised a range of activities that aim to engage the public in the Court’s activities, counter potential misunderstandings and spread the Court’s messages. So what are these messages and how do they work? Outreach and the public Through its outreach activities, the ECCC engages individuals and communities not only as informed members of the public but also as active participants of a larger transitional justice endeavour. To understand how this works, and before turning to the Study Tour and the photographs at Tuol Sleng, I want to flesh out the messages of ECCC outreach and show how a certain public is enacted. Amongst PAS’s first activities was the production of four posters that in images and texts presented the Court and explained how people could get involved. The posters can be read as representations of how the Court perceives itself within the community and in the transitional justice endeavour, and as such are important indicators when examining practices of victiming through didactic outreach. Two of the posters explain the authority of the Court: one explains the requirement of supermajority for judicial decision making. It depicts a bench of five judges who raise their hands as if voting. The text in English reads: ‘Every decision must have the support of both Cambodian and International Judges. Both Cambodian and International standards of law must be upheld.’ The second poster explains the personal jurisdiction and prosecutorial strategy of the Court. The poster contains two images. In the first, a historical scene, a man in typical Khmer Rouge attire is speaking before an audience. In the second, an older man, ostensibly the same as the speaker, is sitting in the dock at a court. The text reads, ‘Only the senior Khmer Rouge leaders and those most responsible for committing serious crimes will be tried. Ordinary KR soldiers have nothing to fear.’ Both posters respond to concerns that were raised already during the negotiations for the Court. As discussed in Chapter 2, there was a concern both outside and inside Cambodia over the independence of the Cambodian judiciary. The requirement of supermajority for all decisions by the bench was seen as the viable compromise, and the image and text of the poster seek to quell any concerns over this. Meanwhile, the second

32 On one Cambodian NGO – KID – and its relation to international donors, see Alexander Laban Hinton, ‘Transitional Justice Time: Uncle San, Aunty Yan, and Outreach at the Khmer Rouge Tribunal’ in Deborah Mayersen and Annie Pohlman (eds), Genocide and Mass Atrocities in Asia: Legacies and Prevention (Routledge, 2013). For more general discussions on Cambodian NGOs during the 1990s and later, see Caroline Hughes, The Political Economy of Cambodia’s Transition, 1991–2001 (Routledge Curzon, 2003) chapter 7.

Figure 5.1  Image courtesy of the Extraordinary Chambers in the Courts of Cambodia.

Figure 5.2  Image courtesy of the Extraordinary Chambers in the Courts of Cambodia

Figure 5.3  Image courtesy of the Extraordinary Chambers in the Courts of Cambodia

Figure 5.4  Image courtesy of the Extraordinary Chambers in the Courts of Cambodia

Photographs and outreach 157 poster responds to a question commonly raised in the early days, namely who would potentially be put before the Court. Admittedly, and as also discussed in Chapter 2, the debate on the meaning of ‘senior’ is still ongoing, yet it has never been suggested that ordinary soldiers were to be charged. These posters seek to calm the public by responding to common concerns regarding authority, independence and targets. The other two posters are particularly interesting for the way they represent the public and interpellate that public. The first poster (Figure 5.1) is divided into four squared pictures, with a picture at the centre of the ECCC judges sitting at their bench. Each of the squares features a Cambodian who is engaged in the proceedings: a young woman listens to the radio, a man watches the television, another man reads the newspaper, and a bus is depicted travelling to the ECCC. The heading reads ‘Everyone can be involved in the process’. This depiction of ordinary Cambodians in relation to the Court is both a representation of the ideal Cambodian participant and a call on Cambodians to become active, an interpellation of Cambodians as active participants. The proceedings are presented as not distant or difficult, but accessible for all. The poster also depicts the form of participation that is envisioned. The individuals read, listen, watch and visit – they learn. They do not participate by, for example, protesting or arguing. The ECCC calls for an active public, but what is acceptable activity is also clearly depicted. The second poster (Figure 5.2) represents a shift in the minds of three young Cambodians. It is possible to read the images depicted in different orders, both arriving at similar messages, expressed in the written message that ‘It’s time for the record to be set straight, Young Cambodians learning about their history.’ The first reading begins with the youngsters depicted in a state of contemplation or confusion; they all share a thought bubble that holds question marks around a man dressed in what appears to be typical Khmer Rouge black attire. Below is the second picture where they appear in a state of agitation and discussion. They stand in front of a television depicting the Court’s bench and from the television come two speech bubbles; one depicting skulls and the other a man being killed. The question marks of the youngsters have here been replaced by exclamation marks. In this poster, the ECCC features as a provider of knowledge, a mechanism through which the younger generation learns about a past that otherwise would remain in dispute. Question marks become exclamation marks. The second reading begins with the youngsters in front of the television, shocked by what they are there seeing (exclamation marks). This triggers further thinking and enquiries, something that importantly is also a coming together to better understand the Khmer Rouge. In both readings, the ECCC features at the centre – it not only provokes conversations about the past but it also ‘[sets] the record . . . straight.’ The ECCC in this way is represented as triggering transition: the past is faced and overcome. The interpellation of members of the public as active participants in the transition to justice also occurs in public forums, or at least in the reporting thereof.

158  Photographs and outreach Consider for example a public forum that was arranged by PAS in September 2010 in the province of Pailin, and featured in a subsequent Court Report. Pailin is often described as a former ‘Khmer Rouge stronghold’ as it is the former place of residence of Pol Pot and Khieu Samphan, and was only integrated with the rest of Cambodia in 1996.33 As such, the public in Pailin appear particularly precarious for the transitional justice endeavour because of their past and their, at least in the eyes of some, potential future threat. In the Court Report following the forum, there is an article that describes how after presentations by the deputy governor of Pailin and representatives of the prosecution and the defence, [p]ublic involvement . . . was lively, with participants firing questions . . .  people in Pailin expressed their serious concern that Case 00234 be a fair and just trial but simultaneously frankly told ECCC officials that they do not support any trial which would undermine national reconciliation. They stressed the importance of avoiding victors’ justice.35 Here, the public forum is represented as a place that can hold ‘frank’ discussions and where issues can be contested and countered. National reconciliation is mentioned as a key concern and the ECCC officials as the bearers of a responsibility to ensure all is conducted ‘fairly’. The text represents the current peace as somewhat precarious, where national reconciliation may still be undermined. However, that the ECCC acts as a beneficial force is made clear in the article. After describing how the meeting raised some emotions and concerns, the article concludes that ‘[a]t the end of the forum, participants requested that the ECCC continue reaching out to Pailin’ and that participants expressed interest in the ECCC Study Tour.36 In this way, the forum is represented as a mechanism for engaging with the population for support. It is narrated as a success story where the people of Pailin, after having been agitated, concerned over a precarious reconciliation, nonetheless express an interest in partaking in the Court’s activities. By having participated in the forum, they now seek to partake in the larger transitional justice endeavour in facing the past by travelling on the ECCC Study Tour. These three self-representations and communications provide some evidence of the way the Court situates itself within a larger process of Cambodia’s transitioning through justice. Through the posters, Cambodians are called to participate in the work of the Court but also to ‘learn’ about the past. Through the public forum, the community in Pailin is called to be part of the work of the ECCC and, while there is some resistance, the encounter in the Court Report is

33 ‘Khmer Rouge Tribunal Officials Meet with Former Khmer Rouge in Pailin’ (October 2010) 30 ECCC Court Report 5. 34 Against Nuon Chea, Khieu Samphan, and, before they were found unfit for trial and died, Ieng Thirith and Ieng Sary. See Chapter 2. 35 ‘Khmer Rouge Tribunal Officials’, above n 33. 36 Ibid.

Photographs and outreach 159 depicted as one where the community is now seeking out the Court and willing to face the past. And so, after noting how the Court presents itself as promoting participation, setting the record straight and facilitating peaceful reconciliation, I now turn to the Study Tour. Outreach as education In addition to being a medium for information sharing and a mechanism for engagement, outreach at the ECCC also holds an explicitly didactic component of teaching about the Khmer Rouge and the history of DK.37 The aim of education is implemented in several ways. For example, when the outreach team visits schools to speak with the younger population, the topic is not only the ECCC but also more generally the period of the Khmer Rouge.38 Most explicitly, the aim of education is present in the Study Tour, the ‘flagship’39 of ECCC outreach. I now turn to the tour and the way victims figure therein and through it. Since January 2010, PAS has arranged study tours for villagers, students and communities. Before the ECCC began its outreach work, similar tours were arranged by NGOs such as DC Cam and the CSD. As with the ECCC Study Tour, these study tours engaged with the public with the purpose of learning about the DK period and the ECCC. The tours have had similar components: a visit to Tuol Sleng, to the Choeung Ek Killing Fields and to the ECCC itself where the participants attend a court session and/or (depending on whether there are hearings that day) meet with court officials for information and a Q&A.40 Since the ECCC launched its own Study Tour, they have run regularly, often every Tuesday and Thursday. The participants come from across the country, with each tour involving around 300 participants. Within a year, the tour had engaged villagers from all of Cambodia’s 24 districts, and by April 2014, the total number of Study Tour participants had reached some 86,000 Cambodians.41 Since not everyone can come on the tour, some of the tours have been directed towards perceived ‘multipliers’ – people of influence whose views are locally respected and who can further spread the Court’s messages.42

37 See, for example, ‘Pailin Residents Visit ECCC & Tuol Sleng’ (November 2010) 31 ECCC Court Report 4. 38 See, for example, ‘School and Community Visit in Kampong Speu’ (June 2014) 73 ECCC Court Report 10. 39 ‘KRT Study Tours Mark 29,000 Visitors from Across Cambodia in 2010’ (January 2011) 32 ECCC Court Report 1. 40 Chamroeun Bann, ‘Justice for Victims: Participating in the ECCC’ (First Quarter 2006) Searching for the Truth 1; on CSD see Manning, ‘Governing Memory’, above n 3; ‘KRT Study Tours Extend to Commune Leaders in 2011’ (February 2011) 33 ECCC Court Report 4. DC Cam Director Youk Chhang explained in 2011 that they had changed focus, from the masses to working closely with a smaller number of very active or local leaders, as well as students, all of whom then disseminate information: interview with Youk Chhang (Phnom Penh, 5 July 2011). 41 ECCC at a Glance (April 2014) ECCC, www.eccc.gov.kh/en/about-eccc/introduction. 42 See, for example, ‘KRT Study Tours Extend to Commune Leaders in 2011’, above n 40.

160  Photographs and outreach That the tour holds a didactic element is made clear by PAS, according to whom the tour can ‘[help] improve understanding about what happened during Democratic Kampuchea, especially among the young people.’43 The tour is meant to stimulate knowledge and create possibilities for closure. In one Court Report, the tour is described as ‘educational for many participants as well as cathartic for some.’ The article also mentions how, on one particular tour, ‘[m]any participants found their relatives and friends in the mugshots at Tuol Sleng.’44 While the wording in this English-language article reflects the need for a particular self-representation (in an international climate where the continuation of the tour relies on donor contributions) the repeated references to education are striking. So how is this education achieved? Let me begin with the set-up. The Study Tour often starts with a ‘Memory Night’ on the eve of the trip to Phnom Penh. On these nights, PAS, in collaboration with Bophana Audiovisual Resource Centre,45 screens shorter documentaries about the ECCC, followed by full-length documentaries such as About My Father, which follows the journey of a civil party, or Red Wedding, which focuses on forced marriage under the Khmer Rouge.46 Since February 2012, screenings have also included a video of the apologies made by Duch, as the dissemination of his apologies was part of the reparations awarded in the judgment against him.47 Villagers then get up, if necessary before dawn, to head towards Phnom Penh in a trip with food, travel and museum entry fees provided by the ECCC. If there are hearings at the ECCC on that day, the group will attend the trial during a session, becoming the spectators I discussed in Chapter 4, either in the morning or the afternoon. The tour also turns to Tuol Sleng and Choeung Ek.48 That the purpose of the tour is educational is without a doubt. As former Chief of PAS Reach Sambath explained, ‘I hope this Study Tour helps them understand the history of their own country better so that they can help to prevent the regime reoccurring.’49 How is this meant to be achieved?

The institutions of the images Given the educational aspirations of ECCC outreach at large, and in particular the Study Tour, and given the large number of participants on the tour, the visit

43 44 45 46

‘Pailin Residents’, above n 37. ‘KRT Study Tours Mark 29,000 Visitors’, above n 39. Bophana Audiovisual Resource Center, www.bophana.org. Both are Bophana film productions. See, for example, ‘Pailin Residents’, above n 37; Rachel Hughes, ‘Legal Outreach and the Extraordinary Chambers in the Courts of Cambodia’ (paper presented at the Historical Justice and Memory Conference, Swinburne University, 14–17 February 2012). 47 As discussed in Chapter 3, Duch was convicted in 2010 of crimes against humanity and grave breaches of the Geneva Convention: Prosecutor v Kaing Guek Eav alias Duch (Judgement) (ECCC, Trial Chamber, Case No 001, 26 July 2010) [668] (‘Duch Trial Judgment’); ‘ECCC Screens Duch Apology’ (March 2012) 46 ECCC Court Report 1. 8 The order of the three stops depends on the day. 4 9 Reach Sambath quoted in ‘Pailin Residents’, above n 37. 4

Photographs and outreach 161 to Tuol Sleng requires closer examination. Tuol Sleng is most known for its large collection of photographs taken as mugshots of persons imprisoned at the site. But how is visiting the museum and seeing the photographs a learning experience? What are these photographs? To answer these questions, I begin with a detour to examine the photographs; I examine how they were produced and the genres through which they have moved, and continue to move. Bringing this with me, I take the significance accorded to outreach generally and its didactic aspirations at the ECCC. The photographs today hanging at Tuol Sleng were taken as mugshots within a bureaucratic institution as part of the identification and production of regime traitors and enemies. Upon the fall of the regime, the images moved from being mugshots to become exhibits in a museum. As Michelle Caswell has argued in her study of the production and life of the Tuol Sleng archive, photos like those at Tuol Sleng are objects with a social life . . . activated in a multitude of contexts, where they construct meaning for particular groups of people . . . at particular times . . . and in particular realms . . . [T]hese activations influence all future activations, so that our future readings of them are inherently bound to their current and past activations.50 Hence, in examining the ways in which victims are represented through the operation of the Study Tour at the ECCC, it is important to note their pasts, their ‘activations’. In this section, I describe how the images were produced and the way they have figured in the institutions of prison, museum, archive and art gallery. As the ECCC outreach victim survivors figure in relation to these images, it is useful to trace the production of the images and how they have figured as representations of the Khmer Rouge regime. This also demonstrates the necessity of paying attention to the practices in which images feature in the prison, museum, archive and art gallery, as these practices give the images different values and meanings. From mugshots to exhibits First, there were mugshots. At the heart of the governance in DK was the santebal – a network of 196 security centres located around the country.51 The santebal was a combination of police and security52 and its pinnacle a place called

50 Michelle Caswell, Archiving the Unspeakable: Silence, Memory, and the Photographic Record in Cambodia (University of Wisconsin Press, 2014) 17. 51 The Duch judgment notes that the security centres opened with the KR’s ‘liberation’ of areas, the first of which was opened already in 1971. There were at least 196 centres, as identified by DC Cam. Duch Trial Judgment [110]. 52 David Chandler, Voices from S-21: Terror and History in Pol Pot’s Secret Prison (University of California Press, 1999) 4.

162  Photographs and outreach S-21. Located in a former high school in Phnom Penh, S-21 was established in September 1975 but rose in significance after Kaing Guek Eav, alias Duch, took over its management in June 1976.53 Less prison than interrogation and torture facility, S-21 was the place from where the country’s counter-espionage and information gathering was run.54 It was a centre of total control where extensive confessions by each and every ‘traitor’ were recorded with meticulous precision, producing a body of knowledge (or false knowledge) that was then used to find further ‘traitorous elements’ in long strings of confessions that became accusations. The process of interrogation made the process resemble a juridical investigation, but with the important difference that with the entry to S-21 came an assumption of a person’s guilt. It remains unknown how many persons entered the facility. The Duch judgment refers to a revised prisoners’ list that holds the names of 12,273 prisoners, but points out that as children were not registered and many records have been lost, ‘the numbers are likely to be considerably greater than indicated.’55 In Case 002, the prosecution presented a revised prisoners’ list with an additional 3,000 persons.56 The changes to the numbers are understandable. Before the ECCC conducted any investigations, historian David Chandler noted that since the logs from 1978 are incomplete, the total number of prisoners may be closer to 17,000.57 While some were killed or died at the site, by mid-1977 most were taken, upon completing a ‘confession’, to be killed at nearby Choeung Ek,58 a former Chinese burial ground that today is known in English as the ‘Killing Fields.’ Very few survived S-21. It has long been said that only seven persons survived. During the trial against Duch, five persons testified as former prisoners of S-21,59 two of whom are not part of the earlier identified seven. According to research conducted by DC Cam, some 179 persons were at some point released, only 23 of whom would have survived the entire regime,60 but this is disputed as it has not been verified that the list with the 179 names actually comes from S-21. In all respects, most those who survived did so thanks to holding unique skills, such as being a mechanic or artistically skilled. So for almost everyone, entering S-21 was equivalent to a death sentence. 53 54 55 56 57 58 59

60

Ibid. Ibid. 15. Duch Trial Judgment [143], see also [141]. Prosecutor v Nuon Chea, Khieu Samphan (Co-Prosecutors’ Amended Closing Brief in Case 002/02) (ECCC, Trial Chamber, Case No 002/02, 2 October 2017) [651]–[654]. Chandler, above n 52, 6. See, for example, Duch Trial Judgment [181], [184]; the exception was children, former S-21 staff and important figures who were killed at S-21: [189]. As discussed in the previous chapter, Chum Mey, Bou Meng, Vann Nath, Norng Chanphal and Ly Hor appeared as survivor testifiers. Bou Meng and Vann Nath survived thanks to artistic skills, Chum Mey and Ly Hor as mechanics, and Norng Chanphal, whose testimony was challenged by Duch, arrived as a child to S-21 only a few days before it fell. Dacil Keo and Nean Yin, Fact Sheet on ‘S-21’ Tuol Sleng Prison (6 December 2010) DC Cam, www.d.dccam.org/Archives/Documents/Confessions/pdf/Fact_Sheet_on_S-21_Tuol_Sleng_ Prison(1).pdf.

Photographs and outreach 163 Although Duch has claimed that S-21 was merely one of many security centres,61 S-21 was indeed exceptional as it was positioned as the epicentre of the regime’s counter-espionage. It was to this place persons in leadership positions who were suspected of treason were taken. Through extensive ‘confessions’ extracted from prisoners on their involvement with the CIA, KGB and Vietnam, the regime sought to secure its existence as a state. Rather than inaugurate a regime or a change, the violence was meant to preserve the power of the regime, ‘cleansing’ it of internal enemies – law preserving rather than law making.62 In Chandler’s description of S-21 as a ‘total institution’, he picks up on the way Its mission was to protect the Party Center. It accomplished this task in part by killing all the prisoners and in part by altering their autobiographies to align them with the requirements and suspicions of the Party. Control over biographies, inmates, and the personnel working at S-21 was absolute and followed a complex “discipline” (viney) that enabled the keepers to dominate the kept and to preside over their refashioning.63 Through extracting information from ‘traitors’, and then killing the informant, the regime worked to cleanse itself of subversive elements. A circularity in reasoning meant that the arrest and interrogation of a person would inevitably lead to the suspicion being confirmed and as the person was forced to name his/her ‘accomplices’, further arrests and interrogations followed on in a seemingly interminable chain of confession and association and confession. As an institution of bureaucracy, S-21 documented and systematised information. Apart from the confessions, some of which were extensive 200-page texts, there were daily logbooks on arrests, and executions, reports on torture techniques and memos on the operations. There were also registration files and records of the prisoners. And then there were the photographs. Prisoners arrived at the centre at all hours of the day, mostly in smaller groups but occasionally individually or in large groups of over a hundred.64 Upon entry, the prisoners were blindfolded and shackled. Taken to the photography unit, the blindfold was taken off and the prisoner had their picture taken. The photography unit consisted of six photographers, the best known of whom is Nhem En, who claims he was the

61 As argued by Duch during the last stages of his trial. See Transcript of Proceedings, Prosecutor v Kaing Guek Eav alias Duch (ECCC, Trial Chamber, Case No 001, 25 November 2009) 86, 98, fn 103 (‘Duch Trial Transcripts’); Duch Trial Judgment [14]. 62 See James A. Tyner and Christabel Devadoss, ‘Administrative Violence, Prison Geographies and the Photographs of Tuol Sleng Security Center, Cambodia’ (2014) 46(4) Area 361, 362. 63 Chandler, above n 52, 14–15. 64 Duch Trial Judgment [147].

164  Photographs and outreach team leader.65 When the centre began operating in 1975, the prisoners were photographed without any form of identification or numbering. But in the following years the procedure altered so that in 1976 and 1977, they were photographed holding number tags, and then during 1978, they held both number tags and placards with names and date. According to Nhem En, the numbers on the tags referred to the position within the batch of prisoners on a particular day and at 7am each day, the numbering would start again.66 After the picture taking, the prisoner would be taken for further registration and the mugshot developed. And so, with the production of a mugshot, a photo depicting a criminal was produced. As discussed in Chapter 2, on 7 January 1979, Vietnamese and Cambodian opposition forces entered Phnom Penh and the remaining Khmer Rouge forces fled the city. The opposition forces moved in with unexpected ease, and Phnom Penh, including S-21, was left in a hurry. Amongst those arriving at the city were two Vietnamese journalists who, when walking around the empty city a couple of days later, stumbled upon an anonymous-looking complex reeking of decomposing bodies. On the lower floors of S-21, the two men found the bodies of 14 men recently killed, some still chained to their beds. The men photographed what they had found and notified officials. During the following days, thousands of documents, mugshots, undeveloped films, notebooks and other DK publications were found at the site.67 The significance of the place was not lost on them and as the new authorities began to uncover the events of the past and come to grips with what had occurred, the place was shut off and work to transform the site into a museum began within a couple of months.68 The mugshot of a criminal in S-21 would become a photographic portrait of a victim at Tuol Sleng. Under the leadership of Vietnamese curator Mai Lam and S-21 survivor and first museum director Ung Pech, S-21 became the Tuol Sleng Genocide Museum. In becoming a museum, the place turned to its pre-DK past for a name. In the 1960s, it had been established as a high school and in 1970 had been given the name Tuol Svay Prey (hillock of the wild mango) and a nearby school had been called Tuol Sleng (hillock of the sleng tree). This later name was taken for a museum, ‘perhaps’, as Chandler suggests, ‘because the sleng tree bears poisonous fruit.’69 From 1980, it was operated by S-21 survivor Ung Pech, while Mai Lam

65 Nhem En was identified as one of the six photographers at Tuol Sleng by journalists Christopher Riley and Douglas Niven in the 1990s. He has since given several interviews, and in 2007 he gave testimony before the ECCC. While Nhem claims he was team leader, this has been disputed by others. Duch Trial Transcripts, 4 August 2008, 107–8. For a discussion of Nhem’s multiple personas, see Stephanie Benzaquen, ‘From Perpetrator to Victim and Vice-versa? The Multiple Identities of S-21 Photographer Nhem En’ (paper presented at Representing Perpetrators of Mass Violence, University of Utrecht, 31 August to 3 September 2016), https://eur.academia.edu/ StephanieBenzaquen. 66 Nhem En in Peter Maguire, Facing Death in Cambodia (Columbia University Press, 2005) 120. 67 Chandler, above n 52, 1–2. 68 Mai Lam himself is unsure whether it was in February or March 1979: ibid. 15. 69 Ibid. 4.

Photographs and outreach 165 stayed on as advisor and curator.70 In the years that followed, the two of them travelled to France, Eastern Europe and the USSR, visiting museums and memorials dedicated to the Holocaust.71 With the assistance of an East German team, many of the 6,000 photographs that had been found were in 1981 developed and enlarged, producing a large collection of photographic displays. This collection of photographs has since been a significant feature of the museum.72 In this way, the photographs moved from being mugshots in a criminal institution to portraits of victims in museum exhibits. As the place began to take the shape of a museum, several other surviving victims of S-21 were tracked down and asked to work there.73 Vann Nath, who had survived the centre thanks to his artistic skills, was asked to paint a number of scenes, paintings that have since been part of the museum displays. Years later, Nath described being part of establishing the museum as ‘the most meaningful thing I have ever done’.74 Two of those asked to work as guides continue to do so today. For one of them, Bou Meng, working for the museum has been an ‘opportunity to tell the Cambodian people and the world about the tragedy that I had suffered under the Khmer Rouge.’75 In this way, direct victims of S-21 were called by the museum as survivors to continue to bear witness to their experiences in a very public way as guides at the museum. Tuol Sleng has always had a didactic aim. In its early days, the museum played an important part in proving to foreigners that atrocities had occurred. A report dated 1980 from the Cambodian Ministry of Culture, Information, and Propaganda states that the museum was ‘used to show the international guests the cruel torture committed by the traitors to the Khmer people’.76 In the year following its discovery, Tuol Sleng was only open for delegations, such as foreigners from ‘fraternal socialist parties abroad,’77 who were guided through the museum; many noted in the museum guestbook that while they had been sceptical at first, they were now convinced that atrocities had occurred.78 The pedagogical aim was also intended for the general public, for whom the museum opened in 1980. In the first four months after being opened to the general public, a staggering 320,000 people (309,000 Cambodians and 11,000 foreigners) visited the museum.79 The above-mentioned Ministry report goes on to state that

70 Ung Pech had survived thanks to his skills as a mechanic and died in 1996. The extent of Mai Lam’s involvement has been somewhat controversial, primarily for his Vietnamese background: ibid. 4–6. 71 Ibid. 72 Ibid. 27. 73 Caswell, above n 50, 66. 74 Vann Nath, A Cambodian Prison Portrait: One Year in the Khmer Rouge’s S-21 (Moeun Chhean Nariddh trans, White Lotus Press, 1998) 108. 75 Bou Meng quoted in Caswell, above n 50, 66. 76 Quoted in Judy Ledgerwood, ‘The Cambodian Tuol Sleng Museum of Genocidal Crimes: National Narrative’ (1997) 21(1) Museum Anthropology 82, 88. 77 Ibid. 78 Ibid. 89. 79 Ibid. 88.

166  Photographs and outreach the museum has played an ‘important element in educating the masses’ as it was open for the public on Sundays.80 That this educational tone was intentional is also made clear by curator Mai Lam, who later explained that ‘For seven year[s] I studied . . . to build up the Museum . . . for the Cambodian people to help them study the war and the many aspects of war crimes . . . For the regular people who cannot understand, the museum can help them.’81 Thus as the photographs went from being mugshots to museum exhibits, the audience was both localised and internationalised, and the victims were instantaneously framed as facilitating a (better) understanding of the regime’s atrocities.82 From archive to art The photographs were produced as mugshots within a criminal institution as part of Angkar’s process of producing knowledge about the population and its traitorous elements. Upon entry to S-21, the person would have a file opened with his/her mugshot either attached to the file or logged in a separate photo file.83 In the last days of the regime, the photographs and files were for some reason separated, leaving the photographs in disarray and mostly nameless. Since having been discovered in 1979, the 6,000 photographs found at the former S-21 site have been preserved and catalogued. They constitute an archive to which researchers as well as survivors and relatives of victims turn for information about those who perished. As the person portrayed in the photograph becomes situated within an archive, the victim portrayed is represented as a source of information that can somehow be learnt or achieved. For archival scholar Caswell, ‘archives are institutions of immense social power . . . the existence and assembly of physical materials in archives dictate which statements about the past historians can render true and which are deemed false.’84 As an archive, the collection of photographs at Tuol Sleng was until the 1990s considered particularly precarious and scholars debated how accessible it was. With its photos and its documents, the archive was thought to hold information not only about the Khmer Rouge period but also about former Khmer Rouge who had returned to Cambodia to overthrow the regime and enter political life during the 1980s.85 As such, the images were situated within an archive with precious information. Today, the Tuol Sleng photography archive is held at a number of places. During the early 1980s, human rights activists David Hawk and Gregory Stanton

80 Quoted in ibid. 81 Interview by Sara Colm in 1995, quoted in Chandler, above n 52, 8. 82 See also Alexander Laban Hinton, Man or Monster? The Trial of a Khmer Rouge Torturer (Duke University Press, 2016). 83 Caswell, above n 50, 31. 84 Ibid. 61, with references to Trouillot. 85 See discussions between Shawcross, Becker and Vickery in Rachel Hughes, ‘The Abject Artefacts of Memory Photographs from Cambodia’s Genocide’ (2003) 25(1) Media, Culture & Society 23, 26–7.

Photographs and outreach 167 accessed the files and photos, making copies of the photos, and used the archive in their calls for an international tribunal against the Khmer Rouge regime. Given that the Khmer Rouge still represented the country in the UN at that time,86 their calls for an international tribunal met little support. For Hawk, the work in the Tuol Sleng archives had a three-fold aim: ‘to document and analyse the Khmer Rouge genocide, advocate remedy and redress, and prevent those responsible from returning to power.’87 In 1991, Cornell University was accorded the task of cataloguing and preserving the documents, which by then had come under the jurisdiction of the Ministry of Culture. Cornell also built a microfilm repository, taking one set of the microfilms set to Cornell, while providing for one to remain at the museum.88 Shortly after, in 1994, Yale University was provided a grant from the US Department of State that enabled the set-up of the Cambodian Genocide Program with DC Cam as a field office in Phnom Penh.89 Together, they began a massive project of documenting and studying the atrocities, including the Tuol Sleng archives. As a result, DC Cam, now an NGO, holds a significant archive on the DK period. Additionally, anyone with the internet can access some 5,000 of the photographs through a depository located in Yale, and search through the database under key words such as ‘clothing’, ‘age’ and ‘gender’.90 The archive continues to grow as more photographs are found. The Cornell project was at the time thought to be complete, but in 1995 a collection was presented to DC Cam by the Cambodian Ministry of Interior and since then hundreds of other documents have made their way to DC Cam.91 As archival documents, the photographs continue to attract attention from scholars from Cambodia and internationally. For example, before the archive was thoroughly studied, Chandler hoped that getting access to it would shed light on resistance movements against the Khmer Rouge regime. As the files were collected, catalogued and analysed, he found in the ‘confessions’ not so much evidence of resistance, as a narrative of paranoia.92 In this way, the preservation and cataloguing of the photographs have been significant in their performance of narrating the past. Here, they are read as data, and in particular as illustrations of the paranoia of the regime and its violent policies. The photographs have also been presented as pieces of art in art exhibitions. As Rachel Hughes has documented, around the same time as Cornell and Yale

86 See Chapter 2. 87 Hawk quoted in Caswell, above n 50, 68. 88 Chandler, above n 52, 11; Cornell University Library, Division of Rare and Manuscript Collections, Tuol Sleng Prison Confessions and Photographs: Collection No 4883, http://rmc.library.cornell. edu/ead/htmldocs/RMM04883.html. 89 In 2005, DC Cam became an independent NGO. 90 See Cambodian Genocide Program, Tuol Sleng Image Database (CTS) Search, Yale University, https://gsp.yale.edu/cgp/search/cts. 91 Chandler, above n 52, 12; Nash Jenkins, Nearly 1,500 Khmer Rouge Prison Photographs Donated to Documentation Center (23 August 2012) Voice of America Khmer, www.voacambodia.com/a/ khmer-rouge-prison-photographs-donated-to-documentation-center/1493810.html. 92 Chandler, above n 52, ix.

168  Photographs and outreach worked to establish an archive, constituted in part by the photographs, two American photojournalists, Christopher Riley and Douglas Niven, visited Tuol Sleng and found in an upstairs deserted location a cabinet with negatives and more photographs. As photographers, what they saw were possibilities for ‘very good prints’, prints with ‘exceptional quality’, something that could lead to ‘publications, galleries, and museums, so as to reach a wider audience.’93 Asked in an interview about how their project evolved, Riley explained that their ‘initial reaction was purely photographic,’ something Niven elaborated by saying that ‘[e]ven though they were of horrible subject matter, with horrible histories, we saw the possibility of making beautiful photographs.’94 They chose 100 photographs for preservation, photographs over which the two men were given the legal rights.95 In the latter half of the 1990s, these photographs were published in a number of Western papers including daily newspapers and photo journals, and in a book entitled The Killing Fields by the art and photography publishers Twin Palms.96 For the publisher at Twin Palms, the images were ‘the most amazing photos . . . The emotional rapport the viewer has with subjects I hadn’t experienced in a long time. I thought to myself, “That’s as good as photography gets.”’97 It is perhaps this power of the photographs that has been picked up when the images have been displayed as art exhibits around the world. In 1997, the New York Museum of Modern Art (MoMA) attracted much attention with its exhibition of the photographs.98 In a small gallery, ‘where the visitor may pause to sit and read, to rest and reflect’,99 the photographs were presented with little mediation. The acquisition and exhibition by MoMA was met with scepticism and criticism as it raised questions regarding the positioning of photographs produced as part of an atrocity within an institution of modern art. Is a gallery an appropriate location for their display or should they only appear at places associated with politics or history? For art critic and theorist Thierry de Duve, the presentation of the Tuol Sleng images within institutions of art is utterly problematic. For him, it raises the question of whether the institution of art, in displaying the photographs, grants a form of legitimacy to the person who took the photos as part of a larger atrocity. More specifically, de Duve questioned whether MoMA was granting legitimacy to someone like Nhem En as an artist. According to de Duve,

93 Quoted in Thierry de Duve, ‘Art in the Face of Radical Evil’ (2008) 125 October 3, 11. 94 Quoted in ibid. 95 It is interesting to note to whom scholars give credit when including the images in their work. For example, de Duve credits Photo Archive Group (i.e. Niven and Riley) (ibid.), while Tyner and Devadoss refer to DC Cam (see Tyner and Devadoss, above n 62, 362). 96 Hughes, ‘The Abject Artefacts’, above n 85, 30. 97 Woody quoted in de Duve, above n 93, 11. 98 See Hughes, ‘The Abject Artefacts’, above n 85, 36–7; Rachel Hughes, Fielding Genocide: Post 1979 Cambodia and the Geopolitics of Memory (PhD thesis, the University of Melbourne, 2006) for thorough discussion on this exhibition. 99 MoMA 1997 quoted by Hughes, ‘The Abject Artefacts’, above n 85, 36.

Photographs and outreach 169 the legitimacy of the museum ultimately rests on the artists, while the legitimacy of the artists rests on their contribution to the museum. And both rest on the circular assumption that respect for the human defines the human. . . . Should Nhem Ein [sic] be called an artist, he would have to be considered a legitimate representative of humankind as a whole, and that notion is obscene.100 In this way, de Duve draws attention to the intersection of art, institutions and legitimation of production. This prompts questions over the representation of the victim in the images as forms of art, of the status of the photographs, and of the legitimacy of their display by the institution of MoMA. Furthermore, the exhibition at MoMA presented the photographs as having been ‘discovered’ by Riley and Niven in an attempt to ‘rescue an endangered photographic archive’.101 This presentation disregarded the fact that they have been displayed at Tuol Sleng since 1980. As Hughes points out, rather than to contextualise the existence of the photographs in relation to, for example, the US engagements with the region that immediately preceded the Khmer Rouge regime, the exhibition instead partook in a narrative of Westerners rescuing precarious and problematic material.102 With little textual curation and mediation, and scant references to their ‘discovery’, the curators relied on the emotive qualities of the photos. Here, the person depicted in the photograph appears forcefully before the visitor as a victim of an atrocious regime who calls on the West for attention. The positioning of the images within different institutions affects the work of the images and their reception. This is most obvious when the genre of the photos shifts from mugshots of criminals to portraits in an archive of victims. But it also occurs when they oscillate between archives and artistic institutions. In the archive, the victims are represented as data, sources of information. The unknown whereabouts of a person is possible to solve through their identification in a photograph, confirming a victimisation. Together, the photographs perform as data that help researchers answer questions about the past and about killings. As pieces of art, the photographs provoke. Since the photographs were taken, they have moved across genres and institutions. Each of these – each context, genre, each place of display – leaves something, a mark, on the photos that is ‘activated’103 in future displays. The genres

100 De Duve’s argument is more complex than I can give credit for here. It is important to point out that his discussion concerns the display of the photographs in an institution of art, whereas I mention how the photographs have appeared at institutions of art only as background for my main focus on their display at the museum: de Duve, above n 93. 101 Niven and Riley’s Photo Archive Group, 1993, in Hughes, ‘The Abject Artefacts’, above n 85, 29. 102 Hughes, ‘The Abject Artefacts’, above n 85, 33. 103 Caswell, above n 50, 17.

170  Photographs and outreach cannot be considered completely separate or each display completely new, as the repetition of the photographs across the genres, context and places provides for a certain contamination. So, I wonder, how do these marks come to bear on the representation of the victim in the encounter facilitated by the ECCC Study Tour at Tuol Sleng?

Learning from photographs Tuol Sleng is what Patrizia Violi has called a trauma site: ‘neither real museums nor cemeteries, nor places of worship, nor monuments – [it is] all of these together, and perhaps even more.’104 As S-21 turned into Tuol Sleng, much was left intact to stand as ‘evidence’. Then, there are the photographs. The ECCC Study Tour comes here with an explicit purpose of education. What then is learnt by visiting and walking through the museum? Importantly in this book on victim figures, how does an encounter with photographs proceed as a practice of victiming? Encountering the photographs at the museum The participant of the ECCC Study Tour arrives, like all visitors to the museum, to a site that consists of four main buildings standing in a semi-circular formation, and buildings closed for the public in the middle. Immediately after entering the site, the visitor is faced with symbolic ‘graves’ for the 14 bodies found by the Vietnamese. Further away, a few trees offer some shade and at the end of the courtyard, a small tourist shop and a mobile wagon store offer visitors cold drinks or one of the many academic and journalistic books on the Khmer Rouge. At the courtyard in the far end, there is a stupa that was erected in 2015, replacing one in wood from 1987 that collapsed around a decade later.105 At the ground around the stupa, plaques with the names of known victims have recently been added (more on which shortly). Much of the site has been left intact, in particular buildings A and C. In building A, visitors can enter the rooms where the Vietnamese photojournalists found bodies still shackled. The beds to which prisoners were chained are still there, the floor is still stained as if from blood (it is said the stench was horrifying for a long time106), and on the walls are pictures of the room taken by the Vietnamese journalists. Similarly intact, building C consists of a lower floor with tiny brick cells where individuals were kept and upper floors with large rooms where groups of individuals were shackled. Buildings B and D appear more curated, with additional exhibits, and on the upper floors of buildings A and C there are temporary exhibitions. In building D, visitors find equipment

104 Patrizia Violi, ‘Trauma Site Museums and Politics of Memory: Tuol Sleng, Villa Grimaldi and the Bologna Ustica Museum’ (2012) 29(1) Theory, Culture & Society 36, 42. 105 Helen Jarvis, ‘Powerful Remains: The Continuing Presence of Victims of the Khmer Rouge Regime in Today’s Cambodia’ (2015) 1(2) Human Remains and Violence 36, 41. 106 Ledgerwood, above n 76, 90.

Photographs and outreach 171 used for torture, a photograph of the former map of skulls exhibit (dismantled in 2002),107 and paintings made by survivor Vann Nath, depicting life at S-21. Finally, building B, on which the rest of this chapter will focus, exhibits most of the photographs of the persons who were held at the centre. Upon entry to building B, the visitor is soon surrounded by the photographs. There are photographs on the walls as well as on freestanding boards. The many photographs appear as masses. Most photographs appear in larger collectives – in rows of six by 12 or more photos – arranged by a common trait. At first, they appear indistinguishable: the men and women become a mass of faces or what Sontag called ‘an aggregate of victims’.108 Anonymous for most visitors, the mass of images is difficult to take in. As mass, the photographs remain what Barthes called studium, horrible ‘scenes’ that require the ‘rational inter-mediary of an ethical and political culture.’109 As mass, the images of the individual persons are difficult to take in. Looking closer, the individual traits of each person depicted appear. Most photographs hold a single individual in a typical mugshot manner: a man, woman or child sitting down being photographed from chest up facing the photographer. In a few, the person is chained to a bystander, and in another, a mother is holding her infant child. Some of the boards are organised according to shared characteristics, so that there is a board with young girls, and one with young boys. One person stares with disbelief, another terrified, a third smiles as if in contempt and a fourth smiles as if pleading with the onlooker. They are old men and women, teenagers looking as if coming direct from battle, women and men thin with starvation, women carrying their babies, young girls and young boys. It is, to continue with Barthes’ terminology, the punctum that pulls the viewer closer. Something in the pictures that punctures the viewer, compels and draws the viewer in, forces him/her to look closer.110 The mugshots of a few persons are enlarged, and a few are displayed together with harrowing pictures taken after their death. Not all were photographed postmortem, only if they were prominent and there was a perceived need for proof of their death, or if they had died ‘by mistake’, that is, if the interrogations had gone too far or, in the case of only a few, they had managed to commit suicide.111 Apart from these few photographs of corpses, it is the photos of the living dead that dominate the museum.

107 The map of skulls was a 12-square-metres exhibit depicting the map of Cambodia, composed of some 300 human skulls and with Cambodia’s main rivers painted in red to represent blood. See Wynne Cougill, Buddhist Cremation Traditions for the Dead and the Need to Preserve Forensic Evidence in Cambodia, DC Cam, www.d.dccam.org/Projects/Maps/Buddhist_Cremation_ Traditions.htm. 108 Susan Sontag, Regarding the Pain of Others (Picador, 2003) 61. 109 Roland Barthes, Camera Lucida: Reflections on Photography (Richard Howard trans, Vintage, 2000 (1980) 26 [trans of: La Chambre claire (first published 1980)]. 110 Ibid. 27. 111 Duch Trial Transcripts, 28 July 2009, 40; Chandler, above n 52, 27.

172  Photographs and outreach The mugshots are horrifyingly striking in their simplicity. Appearing in a context that has been conserved almost entirely, where today’s visitor enters what appears to be the very same room and sees the very same walls, windows and trees as those who were killed in the 1970s, the photographs are presented as remnants from this past. What appears to be a lack of manipulation – a grainy photograph, a black spot here and lack of light there – seems to suggest that the pictures are ‘real’, thereby adding to a particular perception of what is required for an artefact to be authentic.112 Regardless of whether this lack of manipulation is the result of a deliberate curatorial decision113 or simply a lack of funding, it plays into an approach to memory according to which the poor quality of the photos strengthens their documentary status.114 The question is whether this provides for an intensified affective encounter with the photos,115 and if so, for whom? The encounter with the Tuol Sleng photos prompts questions over being in the position of viewer, questions that may not be the same for all. In the West, a common set of questions raised in relation to the Tuol Sleng photographs concerns the response and responsibility of the viewer: How should a visitor or viewer respond responsibly in the face the person photographed? Can one look at the photographs without being accused of voyeurism, or is it only those who can ‘do’ something, like a doctor performing a surgery, who can avoid being accused of voyeurism, which is what Sontag argued?116 The position of the visitor, of viewer, is problematic at Tuol Sleng. Here, the visitor faces the prisoner, meets his or her eye from the same position as the photographer. And just as the photographer then knew, today’s viewer holds the same superior knowledge – that of imminent death. In this way, the people photographed are, in the words of Sontag ‘as in Titian’s The Flaying of Marsyas, where Apollo’s knife is eternally about to descend – forever looking at death, forever about to be murdered, forever wronged.’117 The visitor’s gaze in this way not only witnesses the scene but does so from the position of the former perpetrator. The suggestive conflation of weapon and camera118 is difficult to refute. And so, in viewing the eyes of the persons in the photographs, the visitor is met by questions, a questioning.

112 On authenticity and art, see Sontag, above n 108, 26–7. 113 As at the United States Holocaust Memorial Museum, where ‘curators found that they preferred so-called dirty photographs – those marred by scratches, dust, dirt, and generations of copying – that gave the photograph a badge of authenticity’: Barbie Zelizer, Remembering to Forget: Holocaust Memory Through the Camera’s Eye (University of Chicago Press, 1998) 195. 114 See Kerwin Lee Klein’s critique of the materialisation of memory in particular, and of memory more generally: Kerwin Lee Klein, ‘On the Emergence of Memory in Historical Discourse’ (2000) 69 Representations 127, 135–6. 115 Alison Young has written extensively on the affective dimensions of art and photographs in criminology. See, for example, Alison Young, ‘From Object to Encounter: Aesthetic Politics and Visual Criminology’ (2014) 18(2) Theoretical Criminology 159; Alison Young, The Scene of Violence: Cinema, Crime, Affect (Routledge-Cavendish, 2009); Alison Young, Judging the Image: Art, Value, Law (Routledge, 2005). 116 Sontag, above n 108, 42. 117 Ibid. 61. 118 Benzaquen, above n 65, 3–4.

Photographs and outreach 173 For de Duve, the encounter with the Tuol Sleng photographs (which he sees not at Tuol Sleng but at a temporary exhibition) imposes on the viewer an impossible aesthetic judgment. He cannot but read them in light of photographs taken by people working as artists, a reading he feels he must refuse. He finds that ‘[t]he moral responsibility I felt I had vis-à-vis these images entailed a refusal and a rejection of the aesthetic feelings they yielded.’ But this refusal fails since ‘aesthetic feelings are involuntary.’119 He struggles as to how to react; an initial reaction of ‘cheap sentimentality’ had to be resisted. Ultimately, he finds that only a prolonged visit to the photograph, one that entailed ‘staring at the photos – or rather, at the people in the photos – one by one . . . until they emerged from the anonymity of mass murder and became individuals again’ could make the encounter bearable.120 For de Duve, only this appreciation of the individuality of each and every person photographed can respond to the problematic ‘cheap sentimentality’ the photographs invoke. One hundred photographs had been chosen for the exhibition he visited. How should the visitor to Tuol Sleng respond, faced with not a hundred but thousands of photographs? At Tuol Sleng, the faces are impossibly many, too many for the visitor to face, too many to address.121 In their plurality, they look at the visitor, they call and probe with questions of responsibility. Faced with the photographed victim, the blur between the ‘you’ in the photographic moment and the ‘you’ as a visitor to Tuol Sleng makes the encounter powerful, an interpellative act that arrests the visitor to bear witness to the perpetual flaying. I believe it is this that makes visiting Tuol Sleng so powerful. The encounter holds an affective dimension that should not be dismissed simply as ‘cheap sentimentality’. Rather, as affective encounter,122 it holds a potential for opening up a space for connections between viewers, who, each and every one, is met by the same questions and questioning by those photographed. As such, the affective encounter holds potential for creating communities, a potential that I believe the ECCC capitalises upon in bringing Cambodians to the museum. However, this is not to say that the interpellations are successful, or that all visitors respond to the call in the same way. I will return to this affective dimension in the interpellative call, but before doing so, I ask, how is it that the photographs are represented as evidence and what does this do to the visitors? Evidence Regardless of the potential of connecting viewers, the ECCC Study Tour has the more explicit aim of educating the public. So what is it anyone learns from 119 de Duve, above n 93, 21. 120 Ibid. 22. 121 See Edkins for a discussion on singularity and ‘being-with’ through a reading of the photographs alongside Derrida and Nancy: Jenny Edkins, ‘Exposed Singularity’ (2005) 9(4) Journal for Cultural Research 359. 122 For a discussion on image and affect, see Alison Young, ‘The Scene of the Crime: Is There Such a Thing as “Just Looking”?’ in Keith J. Hayward and Mike Presdee (eds), Framing Crime: Cultural Criminology and the Image (Routledge, 2010) 83, 84–5.

174  Photographs and outreach viewing the photographs? Curator Mai Lam envisioned the photographs to stand as ‘evidence’ of the crimes of the Khmer Rouge.123 Meanwhile, the ECCC Court Report chooses to quote a visitor in one of the tours saying that the visit had provided the evidence needed to support stories previously heard.124 ‘Evidence’ holds particular meanings in a court of law and these are not necessarily replicated in outreach. Indeed, a few of the photographs were presented as evidence in the trial against Duch125 but before being accepted as such, they were in this legal context subject to scrutiny, examination and cross-examination. Nonetheless, in outreach, the photographs are used as ‘historical data’ and presented as a form of evidence. So how do the photographs perform as evidence? Barthes envisioned that photographs hold a unique status as medium, as a transfer and transport of the past. He suggested that while ‘language is, by nature, fictional’, the photograph ‘is indifferent to all intermediaries: it does not invent; it is authentication itself . . . Photography never lies’.126 For him, the photograph is a gate to the past. In this way, it is for him ‘at once the past and the real.’127 Barthes suggests that the power of a photograph is formed in its holding onto while cleaving a past. It is not that photographs reflect a ‘real’, but instead the eventuality – the event – of the photograph takes place as a return of a past real. The past forcefully comes to the present, demanding attention.128 Accordingly, Tuol Sleng seems to assume a self-evident power in the photographs, that alongside their location at the site where they were taken, their evidentiary force is in the photographs themselves, disclosing the past to the viewer. In line with this rationale, information at the museum was for long remarkably scarce. That is, there were, and are still, few words at Tuol Sleng; very few signs or posts explain or provide further information and context. Initially, guides accompanied many of the visitors through the museum, but this is far from the case for contemporary visitors. In 2015, an audio guide was introduced at Tuol Sleng,129 developed in the same format as the audio tour produced for the Choeung Ek Killing Fields in 2011.130 These audio tours, developed by the company Narrowcasters and available in some 15 languages, guide the visitor through the sites with a combination of information about the Khmer Rouge regime and the specific places. Testimonies by witnesses, survivors and former guards from the trial against Duch are included. These testimonies and the information are interlaced by music.131 The audio guide fills an important gap at what has been a site too long assumed to speak for itself.

123 124 125 126 127 128 129 130

Ledgerwood, above n 76, 89. Quoted in ‘KRT Study Tours Mark 29,000 Visitors’, above n 39. In relation to civil party claims, see Duch Trial Judgment footnote accompanying [645], [648]. Barthes, above n 109, 87. Ibid. 82. Ibid. 88–9. Narrowcasters, Audio Tour of the Tuol Sleng Genocide Museum (Information pamphlet, 2015). Narrowcasters, Audio Tour of Killing Fields (Information pamphlet, 2011). See also their website: Narrowcasters Audio Tours, www.narrowcasters.com. 31 Narrowcasters, Audio Tour of the Tuol Sleng Genocide Museum, above n 129. 1

Photographs and outreach 175 Yet, according to Chief of PAS Dim Sovannarom, the audio guide is not used by participants of the Study Tour as they are simply too many.132 While there is usually a guide accompanying the tour, with two to three hundred participants, the guide simply cannot explain or guide all. It thus remains the case that the participant of the Study Tour faces the photographs without any oral or written narration. There is only the context provided by the visual curation. In line with this reliance upon the self-explanatory evidential force, most of those photographed appear anonymous to the viewer and only a handful of prominent people are explicitly named. This withholding of identity was a deliberate act by the curators and is notable as it stands in contrast to the practice of many other atrocity memorials across the globe.133 While the identity of some remains unknown, others are only anonymous for the museum visitor. During the first years, visitors who identified their loved one would write her or his name directly on the photo. However, this was disallowed, ‘as the photos were “evidence” and the cost of replacing damaged photos was high, even where this was possible.’134 The ban suggests, as Hughes notes, that the authorities did not consider the museum an appropriate site for personal memorialisation and mourning.135 It also suggests that for the museum authorities, the form of silence that comes with anonymity was not problematic but even preferable. But what in the Tuol Sleng photographs is self-evidential? Taken out of context, the photographs at Tuol Sleng are simple mugshots, depicting a man or a woman that through their format inscribe the subject with criminality. In his Foucaultian reading of mugshots, Tagg notes that in this standardised image is more than a picture of a supposed criminal. It is a portrait of the product of the disciplinary method: the body made object; divided and studied; enclosed in a cellular structure of space whose architecture is the file-index; made docile and forced to yield up its truth; separated and individuated; subjected and made subject.136 An object to study, organised as criminal records, the mugshot inscribes the body with criminality. Like at other criminal institutions around the world, the mugshots of S-21 were produced with the purpose of cataloguing and information gathering, inscribing the object with a certain criminality; drawing on perceptions of the camera and photograph to reflect ‘truths’.137 Despite the production of the photographs as mugshots, it is not the criminality of those depicted that is on display at Tuol Sleng. Nor does the force of the 132 133 134 135 136

Interview with Dim Sovannarom, Phnom Penh, 9 June 2016. Violi, above n 104, 49. Hughes, Fielding Genocide, above 98, 139–41. Ibid. John Tagg, Burden of Representation: Essays on Photographies and Histories (Macmillan Education, 1988) 76. Tagg is not focusing on the photographs produced at S-21 but discussing mugshots more generally. 37 Ibid. 74–6. 1

176  Photographs and outreach photographs so much lie in what they depict. Rather, their force lies in existing. It is the fact that there are masses of mugshots produced in conjunction with the killings of masses of Cambodia’s population that is meant to stand as the evidential link between a regime and the deaths. The Tuol Sleng photos in this way appear as objects ‘that have survived actual events as evidence, although they cannot directly “show” those events’.138 The evidential force of the photographs stems from the fact that they were produced as mugshots, not the object of the photograph. It is the photograph – its organisation and presentation – and not what is depicted that is the remnant of a past atrocity. Yet even so, it is necessary to interrogate their status as remnants. Photographs are not equivalent to memories and may just as well act as counter-memory in that they can block and replace what is remembered.139 It is important to note that remnants like photographs are always mediated ‘not through recollection but through projection, investment, and creation.’140 The same photograph may very well come to represent multiple and conflicting pasts. Barbie Zelizer found in her study of Holocaust photographs that photographs were republished and reprinted in later decades ‘not necessarily because they supported a photo’s original publication but because they helped launch new rhetorical arguments.’141 In this way, photos anchor arguments in a (represented) past, and appear to the contemporary viewer mediated by both this representation and contemporary contexts. What this points to is the way the space for interpretation opens when the photographs are assumed to ‘speak for themselves’ and not accompanied by information. The participant of the Study Tour gains little (further) information at Tuol Sleng, and in order to make sense of the photographs, s/he relies upon prior knowledge. For someone like Sontag, this openness comes as no surprise as she argued that understanding can only come from narration: ‘whether the photograph is understood . . . its meaning – and the viewer’s response – depends on how the picture is identified or misidentified; that is, on words.’142 Her remark prompts us to interrogate the didactic potential in the photos: if they cannot speak, how can they teach? Without texts accompanying the photographs at Tuol Sleng, they remain caught in a tension between their presentation as evidence and as remnants invoking memories and the past. They are presented as evidence, but lack the contextualising narration; they stand as remnants but rely on memories created elsewhere. This tension is also evident in the usage of the photographs by the ECCC outreach.

138 Hughes, ‘The Abject Artefacts’, above n 85, 28. 139 Barthes, above n 109, 89. 140 Marianne Hirsch, ‘Projected Memory: Holocaust Photographs in Personal and Public Fantasy’ in Mieke Bal, Jonathan Crewe and Leo Spitzer (eds), Acts of Memory: Cultural Recall in the Present (University Press of New England, 1999) 2, 8. 141 Zelizer, above n 113, 187. 142 Sontag, above n 108, 29, 89.

Photographs and outreach 177 Narration The presentation of the photographs as self-explicatory and self-evidential leaves the visitor relying on exterior context for their interpretation. By themselves, the collection of photographs does not provide any context, past or current. Concerned about this relation between photographs as evidence and their context, Tagg argued that the evidential force is not so much in the photograph as it is ‘a complex historical outcome and is exercised by photographs only within certain institutional practices and within particular historical relations’.143 Put differently, photographs are, like all objects, dependent on their particular history and context, as well as that of the present. Like any other medium or object, the photograph must be interpreted. Alone, a photograph can be read in several ways. Just as Zelizer noted above on how photographs can be used in multiple and contradictory settings, the Tuol Sleng photographs have been used in a number of narratives. In the West, the Tuol Sleng portraits have come to represent all victims of the Khmer Rouge. Popular media often display the mugshots as illustration of the atrocities during the regime, at times accompanied by explanations on how the Khmer Rouge killed all intellectuals and oppositional voices.144 Visiting Tuol Sleng is thus rarely a first encounter with the photographs.145 For a Western audience, the site and its photographs were from an early stage presented with reference to the Holocaust, such as in the 1979 documentary where John Pilger compared the site to a Cambodian Auschwitz.146 It remains controversial whether or to what extent the museum itself was crafted in reference to Holocaust sites and museums. Thion has argued that the museum was constructed with deliberate parallels to Nazi camps ‘in an effort to attract part of the sinister charisma of Auschwitz’.147 Even if the museum is not a direct copy of Western Holocaust museums, as noted above, Mai Lam visited Germany, Russia, France and Czechoslovakia to research atrocity museums’ curation, and East German specialists with expertise in Holocaust memorials assisted in creating Tuol Sleng.148 Implicit, or at times explicit, Nazi references in this way inevitably fill in for Western visitors that which is left to speak for itself at the museum with pre-conceived understandings of who is killed in mass purges. In Cambodia, references to Nazism and the role of Vietnam in the set-up of the museum, in particular through curator Mai Lam, have prompted a longstanding

143 Tagg, above n 136, 4. 144 For example, the documentary Scream Bloody Murder (presented by Christiane Amanpour, CNN International, 2008). See also Sontag, above n 108, 60. 145 See Edkins discussing the implications of the attributes in Edkins, above n 121, 367. 146 Year Zero: The Silent Death of Cambodia (directed by David Munro, Associated Television, 1979) 16:40. 147 Thion (1993) in Ledgerwood, above n 76, 89. 148 For a discussion, see Ledgerwood, above n 76.

178  Photographs and outreach debate over ‘authenticity’.149 Occasionally, there are even claims that S-21 was fabricated by the Vietnamese as part of its propaganda against the Khmer Rouge.150 Ledgerwood argues that Tuol Sleng and its photographs played an important part in the state narrative established during the 1980s on the Khmer Rouge period. In this narrative, a ‘glorious revolution’ was ‘hijacked’ by a ‘handful of sadistic, genocidal traitors’ – the ‘Pol Pot–Ieng Sary clique’.151 This account presents a regime that killed for the sake of killing, where the experiences of suffering at S-21 come to stand for suffering nationwide. At the museum, this narrative of a responsibility that lies only with a few collapses time and space, and effectively silences any differences during the period amongst areas or groups.152 It is in this vein that a few of the enlarged photographs are accompanied by signs in Khmer, and the English and French translations attribute guilt over the atrocities to the Pol Pot–Ieng Sary clique. As Hughes explains, this identification of a few ‘prominent’ victims – and only these – who became ‘martyrs’ for the (future) regime, also meant that the public could safely identify a relative as having been purged at S-21, without questions or suspicions about loyalties during the DK period.153 To these already existing narratives and contexts arrives the ECCC Study Tour. The tour, organised by an internationalised court, places the photographs in yet another narrative with its own logic and rationale. Participants are taken here by the Court to ‘learn’ about the country’s past;154 a few find their loved ones; and by participating in the tour, they are given ‘the opportunity to confront a dark chapter of the country’s history.’155 This positions the photographs as objects through which visitors learn. What is significant in the ECCC Study Tour is not so much the question of who the persons in the photographs were, but rather the movement that the encounter with the photographs is expected to trigger. By viewing the Tuol Sleng photographs, the visitor – a Cambodian who lived through the regime or is born after the regime – is meant to learn something. This interpellates the visitor as a participant in the transitional justice endeavour. This participant is represented as a figure who was somehow stuck156 – in their personal suffering, in not knowing the fate of loved ones, in ignorance about its country’s past – but who, through the Study Tour, is triggered to ‘mov[e] forward through justice’, as the ECCC slogan states. Indeed, as the outreach film in the chapter introduction describes it, this takes the work by the ECCC beyond the legal developments inside the Chamber. An early report

149 150 151 152 153 154

Ibid. See discussions in Ledgerwood: ibid.; and Jarvis, ‘Powerful Remains’, above n 105, 40. Ledgerwood, above n 76, 82, 91. Ibid 82–3, 93, with reference to Vickery’s Standard Total View. Hughes, Fielding Genocide, above n 98, 141. See, for example, ‘Study Tour in Cooperation with Peace Corps’ (April 2012) 47 ECCC Court Report 4. 155 ECCC, Moving Forward Through Justice. 56 See Hinton, ‘Transitional Justice Time’, above n 32. 1

Photographs and outreach 179 by the NGO DC Cam makes the function of its own tour (a forerunner to the PAS Study Tour) explicit. The tour not only allow permits villagers to see with their own eyes how the Cambodian genocide is remembered by others across the country, but also . . . incorporates the role of the victim in the tribunal.157 Here, by visiting the museum, the outreach participant-victim also becomes part of the Court and ostensibly also the judicial process. And although the Study Tour is designed and carried out not by the chambers but by a public affairs section, it cannot avoid the close association within an institution devoted to criminal law and the finding of guilt and innocence. In this context of criminal law, there is only room for perpetrators and victims (and potential witnesses), creating an exclusivity of subjects. And so, while ‘activating’ previous and existing marks of the photographs from Tuol Sleng and elsewhere, the Study Tour adds the mark of international criminal law (ICL). How does this operate?

Victims and perpetrators The way that the photographs are presented as self-evidential currently relies upon their anonymous appearance. This anonymity has meant that fewer questions are asked about the people who were killed at S-21. Consequently, it has also meant fewer questions about why a regime killed so many of its own – its own people (Cambodians) but also people who were more or less devoted Khmer Rouge. It serves to repeat that many if not even the vast majority of those ‘smashed’ at S-21 were lower- and middle-ranking Khmer Rouge cadres. In his testimony at the ECCC, former S-21 Chairman Duch explained that those who were taken to S-21 came in two waves. Before April 1976, they were soldiers and supporters of the former Lon Nol regime. After this, the focus was directed to internal enemies. As a result, almost 10,000 of the 12,273 prisoners whose files have remained had served as Khmer Rouge cadres.158 Around 500 of these had held positions of responsibility, and were rightly or wrongly accused of treason.159 Many fell victim to internal purges, attempts by the regime to clear any suspected traitors. The anonymous mugshot facing the visitor at the museum does not reveal that the boy was a soldier fighting for the Khmer Rouge but accused of treason, that the man suddenly named in a ‘string’ as a CIA/KGB informer was a local leader, or that the woman allegedly ‘destroying the revolution’ by stealing

157 Dacil Keo, ‘Victims Participation: The 8th ECCC Tour’ (Third Quarter, 2006) Searching for the Truth 18. 158 ‘5,609 entries are members of the RAK [Revolutionary Army of Kampuchea] and 4,371 are DK cadres’. Both groups were Khmer Rouge. Duch Trial Judgment [141]. 159 Chandler, above n 52, 36–7, Chapter 3.

180  Photographs and outreach some fallen fruit in the forest was a hard-working farmer who once had believed in the cause.160 Additionally (although these were allegedly not photographed), 155 of those who were killed at S-21 were its former staff;161 smashed, having fallen victim to the paranoia of the regime, but at one time also part of it. This aspect of the victims of the S-21 is mostly silenced or brushed over. For some, this ‘masking’ of the background of those killed is even what ensures the site is an ‘authentic marker of the genocide’.162 In this logic, there are only perpetrators and victims, no one in between and no one both. As an institution, the ECCC does not question or problematise this split between victims and perpetrators. Take the naming of those killed at S-21. The anonymity of the victims at Tuol Sleng has long been a striking feature and a contrast to the practices of naming at other memorials honouring victims of war and atrocity across the globe. After the trial against Duch, where a list with some 12,000 names was accepted as evidence, steps were taken to create name plaques for the stupa at Tuol Sleng as an ECCC non-judicial measure.163 A controversy erupted when Chum Mey, S-21 survivor and President of the victims’ association Ksaem Ksan, denounced the initiative. Although he had initially supported the measure, he now expressed a concern that the plaque would place alongside each other the names of those who had once been a part of the Khmer Rouge, and those who had never joined the group. As he put it: ‘In no country in the world do they take the names of someone who kills and put it on a stupa.’164 In contrast to most other victims of S-21, and in contrast to fellow S-21 victim survivor Bou Meng, Chum Mey was never a member of the Khmer Rouge. His statements caused a split between the two, who still come to Tuol Sleng to act as guides and to sell their memoirs.165 After further consultations, Chum Mey again changed his mind and agreed with the presentation of a plaque with the names. But the controversy pointed to the difficulty of speaking about victims who once were perpetrators. It would be very difficult both practically to distinguish between individuals who were killed there, and morally to impose any distinctions between them. In this way, the naming does facilitate further inquiries into how, why and who fell victim to the regime. The ECCC entrenches the silence surrounding the complex victim-perpetrator dynamic. As a criminal law institution, it is based on the finding and allocation of criminal responsibility. But as an internationalised institution, its jurisdiction is strictly limited. As discussed in Chapter 2, the ECCC can only prosecute senior

160 All common reasons for perceived ‘treason’. ‘CIA/KGB’ came to mean any foreign agency, and often had nothing to do with the US or USSR. 161 Duch Trial Judgment [141]. 162 For example, Lisa M. Moore, ‘(Re) Covering the Past, Remembering Trauma: The Politics of Commemoration at Sites of Atrocity’ (2009) 20 Journal of Public and International Affairs 47, 53. 163 See Chapter 4. Poppy McPherson, ‘Memorial Plan Prompts Debate about Victims and Perpetrators of Genocide’, Phnom Penh Post (online), 9 May 2014, www.phnompenhpost. com/7days/memorial-plan-prompts-debate-about-victims-and-perpetrators-genocide. 164 Quoted in McPherson, above n 163. 165 Hinton, ‘Man or Monster?’, above n 82.

Photographs and outreach 181 leaders and those most responsible.166 This focus on only a few is repeated in one of the most persistent messages by the ECCC, particularly in its outreach work: ‘ordinary Khmer Rouge have nothing to fear’;167 responsibility lies only with a handful of men and women and no one else needs to worry. In this vein, also people who are former Khmer Rouge cadres have been encouraged by ECCC representatives to file complaints or become civil parties, emphasising that they too can be victims.168 In this rush to victimhood, it is not that previous participation as Khmer Rouge is repressed, but that it cannot be narrated by the ECCC as responsibility and therefore must be disavowed.169 As a form of disavowal, the reliance upon Tuol Sleng then is not surprising: rather than complicate or encourage questions on how and why people not only fall victim to but also participate in atrocities, the ECCC reinforces the state narratives produced during the 1980s, where the responsibility of a few ‘traitors’ caused the victimisation of all. Also at the ECCC, a narrative emerges where responsibility and guilt lies only with a few of the leaders, architects or ‘masterminds’, and everyone else is a victim.

Conclusion And so to return to the scenes described at the very start of this chapter: the two women, when participating in a Study Tour organised by the Court to see photographs at the museum, identify lost relatives. The women’s acts of identification ensure that the men in the photographs – the mugshots – have their names recorded in the archives. The losses are recognised, the humans are remembered. Meanwhile, the women take part in a particular ritual of commemoration, facilitated and institutionalised by the ECCC, an internationalised criminal court whose activities are not confined to the court chamber. This constitutes the women as particular subjects, namely victim survivors. The movement generated by the photographs is for the women a movement from ignorance to, in the words of the ECCC press officer, knowing ‘the truth’. For the men depicted in the photographs, it is a movement from silenced anonymity to being named and mourned. This ritual is thereby part of the larger ritual that is transitional justice. While viewing the photographs is without a doubt disturbing, and while it may identify lost loved ones, does it help to ‘prevent the regime reoccurring’, 166 See Chapter 1. 167 See, for example, the ECCC Outreach Poster with the English text ‘Only the senior Khmer Rouge leaders and those most responsible for committing serious crimes will be tried. Ordinary KR soldiers have nothing to fear’: ECCC, Posters, www.eccc.gov.kh/en/public-affair/ publication/poster. 168 Manning, ‘Governing Memory’, above n 3, 174. 169 As noted in Chapter 1, disavowal is according to Lacanian psychoanalysis the fundamental operation in perversion, distinct from repression in neurosis, and foreclosure in psychosis: while something repressed is expelled from the conscious but buried in the unconscious, and something foreclosed is expelled even from the unconscious, a subject who disavows simply refuses to recognize the reality. See Dylan Evans, An Introductory Dictionary of Lacanian Psychoanalysis (Routledge, 1996) ‘disavowal’.

182  Photographs and outreach as hoped by the ECCC outreach? As has been argued by Alison Young, images are not simply things ‘capable of impacting upon individuals’ but should be ‘conceptualized as a point of attachment and identification – as subject position through which we speak and think “crime”.’170 Accordingly, the Tuol Sleng photographs hold a potential for thinking through questions about mass victimisation, such as that caused during DK. But in order to do so, would not narrating the multiple stories of the victims serve to complicate our image of the victim, force us to learn more, understand more? Instead, the photographs of the persons who were imprisoned and most often killed at S-21 are in and through the Study Tour contextualised within the framework of ICL and the limited jurisdiction of the ECCC, whereby only a handful of perpetrators stand responsible for the mass victimisation. There are more questions left unanswered. The ECCC Study Tour interpellates the outreach participant first as a victim, then as a participant of a larger transitional justice endeavour. But, as discussed in Chapter 1 and as Butler points out,171 there is nothing inevitable about the interpellative call. A subject is brought into subjectivity through acts of interpellation, but can also refuse, reject, refute the call. Do the persons participating in the ECCC Study Tour refuse the interpellative call? Do they read or respond to the photographs in the same way as suggested by me and others, primarily Western academics? This is not to suggest that the outreach participant-victim is fundamentally other than a Western visitor, but it would be equally problematic to assume a uniform approach or affective encounter with the image. Each person arrives at Tuol Sleng with his/her own aesthetic sensibility which may or may not be shared. This chapter cannot make claims regarding the responses or the successes of the performative. Instead, my contribution lies with the way the ECCC represents victims, here the victim that appears as a participant first in outreach and then in the broader transitional justice enterprise. Generally, images have a capacity to through affective encounters create relationships amongst viewers. It is this potential that needs more interrogation and emphasis, rather than a belief in a photograph’s self-evidential status in providing knowledge or information. That is, it is through the experience, the affective encounter, rather than through presented information that Tuol Sleng and thereby also the Study Tour can provide understanding about S-21 and more broadly about mass atrocity. This is not a criticism. While Sontag dismissed the possibility that photographs can make us understand, she suggested that ‘[p]hotographs do something else: they haunt us.’172 Photographs haunt us in the way that they pull us closer, capture us and rupture the flow. They can place us both ‘before something’ and outside, in ecstasis. This haunting

170 Young, ‘From Object to Encounter’, above n 115, 160. 171 See Chapter 1. 172 Sontag, above n 108, 89.

Photographs and outreach 183 character of photographs then suggests a different role than that presented in the quest of ‘moving forward’. Photographs may trigger relationships, connections in a community, something the ECCC to some extent capitalises upon in the rush to victimhood. However, they may also interrupt and prompt a reflection upon these relationships, bring about a reconsideration, a re-representation. As such, there is nothing final in the representation of the victim.

6 Conclusion ‘Moving forward through justice’

It is June 2011 and the compound of the Extraordinary Chambers in the Court of Cambodia (ECCC) is bustling with people. Inside the Trial Chamber, the Initial Hearings in Case 002 against the surviving leaders of the Khmer Rouge are about to begin. As I stand in line to enter, sweat is pouring off me. The day is humid, but it could just as likely be my nerves. In the outside waiting area, there are cameras filming and taking pictures of Cambodian visitors. I chat casually with a journalist who had attended the trial against Duch, but mostly I stand alone, slightly taken aback by the large number of people who are all waiting with anticipation. I see a few people I recognise: a couple of scholars, people that I know work for the Court and two of the men who survived the security centre S-21 and were active in the first ECCC case against Duch. I look around me and wonder how many of those present at this Initial Hearing in Case 002 are amongst the almost 4,000 civil parties in the case. As I take a seat in the Public Gallery, I nod to my closest neighbours. The middle-aged woman on my left seems eager to speak, but as we realise that we do not have a common language, we simply smile to each other. To my right is a young man neatly dressed in what I assume is his school uniform. As I sit down, he eagerly starts to speak in English, telling me about the importance of the trial and his involvement in a victim youth association.1 When the accused persons enter the Chamber, a gasp goes through the Public Gallery. After so long, after so much suffering, finally the surviving leaders of the Khmer Rouge are appearing before the bench and before us. It is as if seeing them makes the process more real; as if seeing them escorted by security guards makes the legal process somehow tangible. When the accused Khieu Samphan later stands up to speak, the entire gallery is completely focused, as if over 480 persons are together holding their breath.

1 Victim associations are registered with the Victims Support Section of the ECCC and work to facilitate the interactions between civil parties and the Court. These associations have previously been registered with the authorities in the relevant country in which they carry out their activities, i.e. those active in Cambodia are registered associations with the Ministry of Interior. See ECCC, Victims’ Associations, www.eccc.gov.kh/en/victims-support/victims-association.

Conclusion 185 As the months have turned into years, my thoughts have kept returning to this moment. While there have at later visits been fewer visitors and much less media attention, the sense of anticipation at the Initial Hearings has remained with me, that sense of a communal experience. In many ways, this experience is framed by the larger aim of the Court to, as the ECCC slogan puts it, ‘move forward through justice’. Moving forward through justice provides a final image for this book on the relations between the victim and international criminal justice (ICJ) at the ECCC.

The addresses of victims Victims appear centre stage in ICJ. In this book, I have traced the victim moving through the ICJ institution of the ECCC. Obviously, the roles and places of victims have been the subject of considerable debate in the enterprise of ICJ. I began by emphasising the iconic trials at Nuremberg against the Nazi leaders and the trial of Eichmann in the District Court of Jerusalem. The aim here was to complicate the common story by which victims are represented as being absent in Nuremberg but present at the Jerusalem trial. While it is correct that Jewish survivors of the Shoah had little role as witnesses at Nuremberg, the primary victims in the prosecution’s case were not victims of the Holocaust but the Allied states, the victims of Crimes against Peace. In the Eichmann trial, however, victim survivors take centre stage both as witnesses and as spectators, as well as in the reports of the observers, such as Hannah Arendt, and subsequent scholarship, such as that of Lawrence Douglas. In contemporary ICJ institutions such as the International Criminal Tribunal for the former Yugoslavia, International Criminal Court and ECCC, the victim has become a raison d’être. While the role of victim survivors may be contested therein, the institutions give claim to act in the name of the victim. Furthermore, their practices provide a citational network within which practices of victim representation at the ECCC take on value and meaning. There are many such practices. While victims appear centre stage, there is nothing self-evident about the particular ways in which they do so. In fact, their presentations change and shift. Chapters 2 to 5 provided a fine-grained description of the movements of victims from the instituting and institution of a Court, to the pre-trial representation of crime, to victim participation in trial, and then beyond the trial to the genres and modes of outreach. By attending to the practices of their appearance as the workings of representation and performativity, I have unfolded manifold and indeterminate figurations of victims. As demonstrated again and again, these figurations of the victim never settle down but are constitutively plural. This pluralisation is foundational. Of all those who suffer during wars and atrocities, very few come to hold the quality of victim for the purposes of an international criminal court or tribunal. Any such representation as a victim relies upon there being an institution vested with an authority to hear it out. Yet, any hearing necessarily relies upon boundaries that distinguish between suffering and suffering. The institution of a court is thus a cleaving and pluralisation of victims, whereby (only) some become ‘lawful’.

186 Conclusion Even in relation to one institution, one court, the figurations of the victim are plural. Consider again Chum Mey, whose appearance at the ECCC was described in the introduction to the book. When the ECCC began investigating the criminal responsibility of Duch, Chum Mey’s experiences became evidence of crimes. Some crime victims are, like Chum Mey, active participants in the judicial process: their status as civil parties grants them certain rights and their speech at the Court becomes testimony. Some are also, again like Chum Mey, actively partaking in the extension of the judicial work beyond the Court Chamber, participating in outreach projects such as the ECCC educative projects at Tuol Sleng. And finally, some are taken in media and non-governmental organisation reports to hold the authority to speak for the larger collective of victims, figuring as their representative, speaking on behalf of all. When Chum Mey claims the judgment against Duch issued by the Trial Chamber made them victims once again,2 he speaks from the authority as a victim. From the translation to the participation and beyond – the addresses of the victim are many, its figurations manifold. More than this, the figuration of the victim moves and this movement is constitutive. More concretely, consider the victim figure that emerges from the translation of the Khmer Rouge marriages into international criminal law (ICL). The person who wed in a Khmer Rouge marriage figures as a victim in relation to different criminal categories (‘facts’, chapeau elements of a crime, underlying offences) each with its signifier (e.g. rape, other inhumane acts); each giving weight to different forms of value (such as (in)humanity or policy). It also figures in relation to different activities: sometimes it is the wedding ceremony that is the criminal problem, at other times it is the consummation of the marriage. In these figurations, the victim who wed appears as an individual, as couples and as a collective. The victim shifts, always appearing in relation, in a relation. The plural representations of the victim may suggest that they are incomplete, not possible to pin down or to completely attach to one of the many referents in relation to which the victim figures. In this way, a certain mobility runs across the genres in the photographs at Tuol Sleng examined in Chapter 5: the representations of the victim shift from the mugshots, to evidence, to art, to archives. In each iteration, the representation of the photographed differs somewhat. Similarly, victims oscillate between being the spokesperson and having a spokesperson. This oscillation is particularly clear in relation to the victim who appears as a trial participant. The victim who formally participates in the case as a civil party never speaks in person inside the Chamber (unless called to testify), but expresses its concerns through the spokesperson, a lawyer. Yet, at the same

2 Recall from Chapter 1 Chum Mey’s statement: ‘I am not satisfied. We are victims two times, once in the Khmer Rouge time and now once again.’ Quoted in Seth Mydans, ‘Anger in Cambodia over Khmer Rouge Sentence’ (26 July 2010) New York Times (online), www.nytimes.com/2010/07/27/ world/asia/27cambodia.html.

Conclusion 187 time, the civil party does so on behalf of the larger victim community, as the main purpose of its participation concerns collective reparations. As discussed in Chapter 4, at the heart of the relation between the representative and the represented lies the question of authority, a relationship between an author and actor. In representing the victim, authority becomes indeterminate once again. In these examples, indeterminacy is a feature of the referent yet is held in place by the genre of the image and the speaking role. That is, it may not be possible to say who the victim is, but what has emerged in this book is an intense focus on how victims are represented and who speaks in the name of victims. In this way, not everyone is a victim. Yet, there seems to be a rush to victimhood, a call that ‘you too are a victim’. Inside the Public Gallery of the ECCC Trial Chamber, distinctions between the visitors disappear as they turn into spectators. As the spectators learn about the perpetrators, they learn about victimisation, the victimhood that affected so many, perhaps them all. Additionally, those who partake in the Study Tour are educated about the way the Khmer Rouge leaders inflicted damage and suffering. In the encounter with the photographs at Tuol Sleng, the visitors are struck by the suffering while learning about the responsibility of a few. In both instances, the call goes out that they were the perpetrators, we suffered and now we are putting them on trial. The call to appear as victim is extended, differences amongst victims are blurred, while the distinction from the perpetrators is sharpened. Paying attention to who speaks and to the manner of representation, which has been the concern of this book, unfolds the productivity in victim representations. This unfolding sheds light on the different figurations, on the possibilities and promises of representation, yet also on contradictions and tensions. The instability and plurality in the figurations are not necessarily problematic (although they may be), not necessarily something to be ‘fixed’. Reading them as productive brings into the foreground the places of mediation where the practices of representation take shape. This involves the various modalities and technologies of the ECCC: the establishment of a court of which the practices of jurisdiction bring some of those who suffered during extended periods of war and suffering in Cambodia under the authority of law (Chapter 2); the Closing Order that not only provides the institution with its confirmation of charges and accused person(s), but also distributes victims between the categories and classifications of crime, while foreclosing others who suffered (Chapter 3); the trial that orients the victim within an apparatus of participation (Chapter 4); and outreach which unfurls images of the victim across genres, contexts and institutions in a meeting with participants of a Study Tour (Chapter 5).

Moving through justice Reading the mobility of the victim figurations illuminates the movements of the ECCC as an institution of ICJ. The ECCC is a place of transition, situated within

188 Conclusion an enterprise of transitional justice.3 According to its founding documents, the ECCC was established to ‘bring to trial senior leaders of Democratic Kampuchea and those who were most responsible for the crimes and serious violations’ during Democratic Kampuchea.4 Yet, the hopes and aspirations for the Court go much further. As the Court began to operate, the Public Affairs Section (PAS) decided how to express the ‘objective and hope for what the work of the court can bring to Cambodia. It chose “Moving Forward through Justice”’.5 The ECCC slogan makes the enterprise of transition explicit. It represents the ECCC as partaking, or perhaps even initiating, a movement, and importantly, a movement that has direction. The bringing to trial of senior leaders and those most responsible is a large task in itself. It contains a representation of acts and events as crimes and serious violations. As I discussed in Chapter 3, this is a translation of events into the language of ICL, a claim that the suffering was not simply unfortunate but rather constituted crimes. In bringing certain persons to trial, the ECCC identifies and allocates responsibility, and holds those responsible to account. Accountability is a promise that operates at the heart of ICJ,6 linked with theories of deterrence 3 ‘Transitional justice’ is also a term of art. On the concept and history of transitional justice, see, for example, Paige Arthur, ‘How “Transitions Reshaped Human Rights: A Conceptual History of Transitional Justice’ (2009) 31(2) Human Rights Quarterly 321; Alexander Laban Hinton, ‘Introduction: Toward an Anthropology of Transitional Justice’ in Alexander Laban Hinton, Stephen Eric Bronner and Nela Navarro (eds), Transitional Justice: Global Mechanisms and Local Realities after Genocide and Mass Violence (Rutgers University Press, 2010) 6; Kieran McEvoy and Lorna McGregor ‘Transitional Justice From Below: An Agenda for Research, Policy and Praxis’ in Kieran McEvoy and Lorna McGregor (eds), Transitional Justice from Below, Grassroots Activism and the Struggle for Change (Hart Publishing, 2008) 1; Makau Mutua, ‘A Critique of Rights in Transitional Justice: The African Experience’ in Gaby Ore Aguilar and Felipe Gomez Isa (eds), Rethinking Transitions, Equality and Social Justice in Societies Emerging from Conflict (Intersentia, 2011); Peter Rush, ‘After Atrocity: Foreword to Transition’ in Peter Rush and Olivera Simic (eds), The Arts of Transitional Justice, Culture, Activism, and Memory after Atrocity (Springer, 2014) v; Naomi RohtArriaza, ‘The New Landscape of Transitional Justice’ in Naomi Roht-Arriaza and Javier Mariezurrena (eds), Transitional Justice in the Twenty-first Century, Beyond Truth Versus Justice (2006, Cambridge University Press) 1; Ruti Teitel, Transitional Justice (Oxford University Press, 2000); Ruti Teitel, ‘Transitional Justice Genealogy’ (2003) 16 Harvard Human Rights Journal 69. Also see the journal International Journal of Transitional Justice and the organisation International Center for Transitional Justice. 4 Law on the Establishment of the Extraordinary Chambers, with inclusion of amendments as promulgated on 27 October 2004 (NS/RKM/1004/006) (unofficial translation by the Council of Jurists and the Secretariat of the Task Force. Revised 26 August 2007) (‘ECCC Law’). 5 Helen Jarvis, Chief of Public Affairs, ‘Moving Forward through Justice’ (Presentation at Conference on Dealing with a Past Holocaust and National Reconciliation: Learning from Experiences, Phnom Penh, Cambodia, 28–29 August 2006) 2. 6 See Chapter 1; Mark A. Drumbl, Atrocity, Punishment, and International Law (Cambridge University Press, 2007); Wendy Lambourne, ‘Justice After Genocide: Impunity and the Extraordinary Chambers in the Courts of Cambodia’ (2014) 2(7) Genocide Studies and Prevention: An International Journal 28; Diane F. Orentlicher, That Someone Guilty Be Punished (Open Society Institute 2010); Ruti Teitel, Transitional Justice (Oxford University Press, 2000), Chapter 2.

Conclusion 189 and retribution. In this vein, the ECCC explains that holding those responsible to account ‘will set an example for people who disobey the law in Cambodia and for cruel regimes worldwide,’ and ‘[i]f criminals know that they will be held accountable, they may be deterred.’7 Through the ECCC proceedings, something larger than simply holding those responsible to account is set in motion, the holding creating ripples that aims to stop others from committing similar crimes. Perhaps then a final image of the ECCC is as a rite of passage, a rite within which the victim is held in relation to ICJ. The aspirations of the ECCC to move forward transform the ECCC into such a rite of passage. The proceedings are ‘ceremonies that accompany and dramatize . . . major events’.8 Characteristically for rituals, the proceedings do ‘not simply express cultural values or enact symbolic scripts but actually effect[] changes in people’s perceptions and interpretations.’9 In other words, the proceedings are not simply performances where pre-existing subjects act in accordance with the script but also performatives whereby subjects cite the script and so come into being.10 In this way, the proceedings, whether the founding of the institution, the Closing Order, the trial or the Study Tour, become events in themselves. As rites of passage, the ECCC proceedings are part of a movement, a transition. The ethnographer Arnold von Gennep conceived of rituals as three-stage processes whereby a subject leaves one form of existence, passes through a liminal stage, and finally establishes a new identity.11 In this vein, Cambodia is meant to leave a state of impunity and of ignorance, pass via the liminal stage of the ECCC proceedings, and finally reach a new existence characterised by accountability, knowledge and acknowledgement. Against the background of the Khmer Rouge crimes, the Court hopes that holding those responsible to account will mean ‘a load lifted from our backs’,12 and through the United Nations’ assistance in upholding international standards of law13 advance the

7 An Introduction to the Khmer Rouge Trials (PAS, the ECCC, 4th edition) 7. 8 Catherine Bell, Ritual: Perspectives and Dimensions (Oxford University Press, 2009 (Revised Edition)) 94. For a critical perspective on rituals in the context of human rights, see Hilary Charlesworth and Emma Larking (eds), Human Rights and the Universal Periodic Review, Rituals and Ritualism (Cambridge University Press, 2015). 9 Catherine Bell, Ritual: Perspectives and Dimensions (Oxford University Press, 2009 (Revised Edition)) 74. 10 See Chapter 2 and Judith Butler, ‘Gender as Performance’ (1994) 67 Radical Philosophy: A Journal of Socialist and Feminist Philosophy 32. 11 Arnold von Gennep, The Rites of Passage (Routledge, first published 1960, 2004 ed.) 20–1. 12 See Intro; Hun Sen, Prime Minister of Cambodia, in ‘Preface’, An Introduction to the Khmer Rouge Trials (PAS, the ECCC, 4th edition). 13 See ECCC website, ‘Why Was This Model Chosen for the ECCC?’, www.eccc.gov.kh/en/faq/ why-was-model-chosen-eccc.

190 Conclusion rule of law in the Cambodian national judiciary.14 What is significant here is the position of the ECCC in the transition, namely in the liminal stage of the ritual. It figures between the past and the future, between the unknown and known, uncertainty and truth, impunity and accountability. Its practices – the creation, the representation of crime, the trial, the outreach activities – occur in the liminal space where the past is mediated and represented for the future. Here, everything is in motion, much remains indeterminate. The ECCC figures in the space and time of the in-between, where nothing yet is settled and confirmed, but the aim is justice. Yet, just as the instituting of an international(ised) criminal court precludes certain representations of victims (Chapter 2), the liminal space of the ECCC and the expected transition are regulated by a certain structure as the Court is meant to ultimately trigger a move ‘forward’. This gives an account of the change expected through the criminal proceedings as not simply a move or shift, but also of the direction of this shift. As Alexander Laban Hinton has argued, this representation of direction suggests a hierarchy and a teleology, with an implicitly more “backward” or “barbaric” society using the tools of liberalism to “develop” into a more modern, “civilized”, liberal democratic state.15 The representation of a movement ‘forward’, leaving the backward society, cites the norms of the expected transition, the ‘tools of liberalism’. The ICJ project and the transitional justice enterprise operate under similar liberal logics tied to a cosmopolitan politics according to which individual responsibility and internationalism are steps towards justice.16 In accordance with this logic, it is then not surprising that criticism against the ECCC tends to focus on alleged political interference by the Cambodian government, but leaves unattended the way the institution reinforces inequalities, such as by paying ‘nationals’ less than half of ‘internationals’, and by reinforcing a Manichean division between a handful of perpetrators and the large mass of victims. It is within this logic that the ECCC represents itself, must do so in order to appear intelligible. While it is in the liminal space of the transition that the ECCC operates, the movement already holds a certain structure, a certain bias.

14 See, for example, the ECCC and the Cambodian Human Rights Action Committee, ‘Hybrid Perspectives on Legacies of the Extraordinary Chambers in the Courts of Cambodia (ECCC)’ (Conference Report and Recommendations, December 2012). 15 Alexander Laban Hinton, ‘Introduction: Toward an Anthropology of Transitional Justice’ in Alexander Laban Hinton, Stephen Eric Bronner and Nela Navarro (eds), Transitional Justice: Global Mechanisms and Local Realities after Genocide and Mass Violence (Rutgers University Press, 2010) 6. 16 See, for example, Tor Krever, ‘International Criminal Law: An Ideology Critique’ (2013) 26 Leiden Journal of International Law 701; Christine Schwöbel (ed), Critical Approaches to International Criminal Law: An Introduction (Routledge, 2014).

Conclusion 191 The materialisation of the promises of ICJ proceeds constitutively – enabling subject formation – as well as destructively – foreclosing figurations. The manifold and indeterminate victim figurations represent ICJ. In this book, I have argued that tracing the victim through the ICJ institution of the ECCC provides a reading not only of the victim but also of the larger ICJ endeavour.17 The victim represents the (expected) transition initiated by the ECCC in the sense of marking it, standing for it, descriptively and symbolically.18 Take the way the creation of a court provides for the possibility of representing victims in law. Through the translation into crime, an event, suffering, injury is then represented in law and a victim appears. Here, the naming of a victim stands for the possibility of justice through creation and translation. In both these examples, the very representation of someone as a (lawful) victim (of crime) marks the beginning of the transition. In addition to marking the transition, the victim in ICJ also constitutes and enacts the transition. Consider for example the victim who gives testimony during trial: speaking on facts and perhaps on suffering, the speech of the victim testifier becomes part of the legal narrative of the events, in the possible finding of guilt, and in the historical records the Court inevitably produces. Consider also the civil parties whose requests for reparations are to benefit the larger communities. By turning to law, seeking recognition for what happened but not seeking violent revenge, the victim enacts the new society characterised by accountability and knowledge. This is not to say the representations of victims at the ECCC are not challenged; they are. Testifiers challenge the norms of speaking, the exclusion of a charge in Case 002 of rape at work sites and security centres is questioned, and the success of the interpellative call in the Study Tour remains unknown. But these are not so much challenges to my argument of the victim in transition. Instead, they indicate the negotiations that take place in the liminal space of the ECCC. This serves to remind us that at the end of the day, the institution of the ECCC, the enterprise of ICJ, even ‘language’ is rendered ‘hostage to the possibility of being alive.’19 As a practice, representation is never complete as there is always a possibility for challenge. With this book, I hope to contribute to the conversations on law, justice and politics by demonstrating the ways in which the figure of the victim is both manifold and indeterminate. What emerges is a performance of the legal order as a politics of victim representation as much as a politics of transition. Rather than being concerned with who or what is a victim, or seeking to provide an

17 See, for example, Chapter 2. 18 Chapter 2, referencing Hanna Fenichel Pitkin, The Concept of Representation (University of California Press, 1967) Chapter 5. 19 See Chapter 1. Elena Loizidou, Judith Butler: Ethics, Law, Politics (Routledge-Cavendish, 2007) 41.

192 Conclusion audience for those who self-identify as such, I have focused on how victims are represented and who speaks in that mode of representation. In the identification of ‘real’ victims and their voices lies the risk of disavowing the complexities in the practices through which victims appear and disappear. This book has been an attempt to understand and give an accounting of exactly how the complexities of victim figurations play out at, and are given shape by, a particular legal institution.

Index

Note: Page numbers accompanied by an ‘n’ and subsequent number denote notes. accused (person) 22, 25–6, 51, 61–70, 69, 70, 75–6, 91, 93, 108, 110–14, 117, 117n62, 119–23, 127, 129, 131, 132, 141, 184, 187; rights of 49, 124, 139 Annan, Kofi 41–2 Arendt, Hannah 21–2, 28, 82–3, 86, 144, 185 bias 131; structural bias 71, 75, 100, 102, 190; urban bias 57, 70; see also political interference Bizot, Francois 133–5, 138 Bou Meng 56, 132n173, 135n187, 139, 162n59, 165, 165n75, 180 Butler, Judith 9–14, 21, 23–4, 33, 97–8, 182, 189 Case 001 62, 64, 69, 111, 113, 119, 124, 131, 146 Case 002 (generally) 64–5, 119; see also Democratic Kampuchea; Closing Order; Ieng Sary; Ieng Thrith; Khieu Samphan; Nuon Chea; regulation of marriage Cases 003/004 36–7, 65–9 Cayley, Andrew 121 Chandler, David 62, 162–4, 167 Chapeau elements 34, 72, 76–7, 79, 87, 92, 186 Chea Leang 67–8 Choeung Ek ‘Killing Fields’ 146, 159–60, 162, 174 Chum Mey 1–2, 4, 56, 132n170, 135n187, 141, 162n59, 180, 186 Chum Neou 137, 142

civil party: difference to witness 131–2; lawyers 50, 68, 111, 122–6, 128, 131n164, 134–6, 138–40; lead co-lawyers 114, 125–6, 140; participation 106n7, 111–15, 122–30, 137–8, 150–1, 160, 181, 184, 186–7, 191; status 1, 5, 47, 68, 104, 115–22, 186; system 116–18; testimony 122, 130–33, 138–42 Closing Order 34, 62–3, 69, 75–80, 83–103, 187, 189; definition of 75 Communist Party of Kampuchea (CPK) 38, 46, 53, 55–64, 72, 79–80, 84–5, 91, 93, 93n130 contextual elements see chapeau elements Corell, Hans 43, 49 CPK see Communist Party of Kampuchea crimes against humanity 1, 6n19, 17–18, 34, 41, 50, 52, 61, 64–5, 76, 88, 94; in law and social discourse 77–83, 85–6, 98; marriages as 79–81, 84–5, 87, 94–6, 100 DC Cam see Documentation Center of Cambodia Democratic Kampuchea (DK) 38, 45, 47, 53–6, 64–5, 70–1, 114–15, 120, 147, 159, 161, 164, 167, 178, 182; marriages during 72–5, 100; period before 58–63 Documentation Center of Cambodia (DC Cam) 40–1, 112, 119, 151, 159, 162, 167, 168, 179

194 Index Duch (Kaing Guek Eav) 1, 62–6, 113, 119–20, 124, 127–8, 131–7, 141, 144, 160, 162–3, 174, 179, 180, 184, 186 ECCC Agreement 49–51, 65, 118n64, 144n230 ECCC Law 37, 50, 61, 76–7, 80, 83–4, 117–18, 188 Eichmann 15, 20–2, 144, 185 forced marriage 34, 74, 77, 88, 93, 95–6, 98–102, 122, 160; see also Khmer Rouge marriages genocide 6n19, 18, 41, 44, 47, 50, 52, 65n169, 72n3, 81–2, 86, 121–2, 129, 145, 164, 167, 179–80 grey zone 30, 138 Hausner, Gideon 15, 20–2 Hobbes 123–5 Holocaust 20–1, 82, 165, 172n113, 176–7, 185; see also Shoah Human Rights Watch (HRW) 48, 67–8, 71 Hun Sen 3, 28, 37, 41–2, 44, 46, 51, 54, 115 ICC see International Criminal Court ICTY see International Criminal Tribunal for former Yugoslavia ICTR see International Criminal Tribunal for Rwanda Ieng Sary 46–9, 64, 76, 131, 178 Ieng Thirith 64, 76 IMT see International Military Tribunal at Nuremberg Internal Rules 118–20, 123–4, 126, 128, 130, 143 International Criminal Court (ICC) 2, 5, 18, 22–3, 25–6, 28–32, 41, 52, 83–4, 89, 93, 99–100, 102, 108, 117, 127, 143, 150 International Criminal Tribunal for former Yugoslavia (ICTY) 5, 23–5, 40–2, 52, 83–4, 92, 94, 149 International Criminal Tribunal for Rwanda (ICTR) 5, 23–5, 40–2, 52, 89, 91, 149 International Military Tribunal at Nuremberg (IMT) 14–20, 22, 81–2 interpellation 11–13, 157, 173, 182

Jackson, Robert H. 14–19 Jarvis, Helen 40, 41, 48, 124 jurisdiction 2, 22, 34, 38–9, 42, 50–7, 61–2, 64–70, 81, 93n130, 117, 119, 127, 133–4, 152, 167, 180, 182, 187; etymology of 51–2; forms of 52–3 Kaing Guek Eav see Duch Kasper-Ansermet, Laurent 36–7, 68, 71 Khieu Samphan 46, 64–5, 113, 132, 158, 184 Khmer Rouge: after 1979 44–8, 57; capture of Phnom Penh 55; name 38, 38n14, 72; ousting from Phnom Penh 43–4, 56; rise of 57–61 Khmer Rouge marriages 72–103, 186; as ceremony 95–100; as described in research 72–5; as rape 76–7, 87–95 ‘Killing Fields’ see Choeung Ek law of the ECCC see ECCC Law M-13 133–5 Mai Lam 164–6, 174, 177 modes of liability 91n113 MoMA 168–9 mugshots 35, 145, 160–1, 164–6, 169, 171–2, 175–7, 181, 186 Nil Nonn 130, 139, 141 non-governmental organisations (NGOs) 3, 40, 48, 67, 71, 112, 119, 124, 151–2, 159, 167, 179 non-judicial measure 129, 180 Nuon Chea 46, 61, 64, 132 132 outreach 27, 34–5, 109, 115, 146–60; 178–9, 181–2, 185–7, 190; development of 148–51 PAS see Public Affairs Section People’s Republic of Kampuchea (PRK) 44–5, 56 People’s Revolutionary Tribunal 46–9 performative 7, 10–14, 23, 35, 52, 104–5, 123n105, 142, 182, 189 Pitkin, Hannah 4, 7–11, 33, 123–5, 191 political interference 37, 64, 67, 69, 190 Pol Pot 42, 44, 47, 64, 85, 158, 178

Index 195 PRK see People’s Republic of Kampuchea Public Affairs Section (PAS) 108, 145–6, 150, 152, 158–60, 175, 179, 188 rape 6, 24, 34, 76–8, 83, 85, 87–95, 97–101, 129, 186, 191 regulation of marriage 53, 65n169, 76, 78–80, 84, 95 reparations vi–vii, 8, 31, 41, 74, 122, 124, 126–9, 136, 160, 187, 191 representative 7–10, 17, 20, 30, 32–33, 57–58, 71, 73, 107, 116, 121, 122–3, 129, 134, 138, 142–3, 158, 169, 181, 186–7; UN representative 44, 46, 48 ritual 13, 25–7, 74, 95–9, 181, 189–90

transitional justice 31, 147–9, 152, 158, 178, 181–2, 188–90 translation 10, 34, 62, 72, 75–80, 87–8, 101–2, 178, 186, 188, 191 Truth and Reconciliation Commission (South Africa) (TRC) 143 Tuol Sleng Genocide Museum 1–2, 35, 129, 145–8, 152, 159–82, 186–7; see also S-21 Ung Pech 164–5 United Nations Group of Experts 45, 47, 51, 54 United Nations Transitional Authority in Cambodia (UNTAC) 43–5

S-21 1, 47, 54, 56, 62, 64, 113, 120, 127, 129, 135–6, 139, 141, 145–7, 162–6, 170–1, 175, 178–82, 184; see also Tuol Sleng Scheffer, David 40–1, 66 SCSL see Special Court for Sierra Leone Shoah 15, 18–20, 185 show trial 21, 47–48, 67n189, 70 Sihanouk, Prince 38n14, 45n50, 57, 59–60 Sok An 43, 49 Sou Southeavy 130, 139n207, 140, 144 Special Court for Sierra Leone (SCSL) 49n69, 52, 96, 99–100, 102, 108, 149 spokesperson see representative Studzinsky, Silke 125, 131n164

Vann Nath 56, 135–7, 162n59, 165, 171 victiming 11, 14, 23, 39, 63, 70, 152, 170 Victims Support Section (VSS) 124, 128–9 Vietnam 44–5, 55–7, 59–61, 163–4, 170, 177–8

testifier 20–2, 113, 130–42, 144, 191 Theary Seng 61, 116

You Bunleng 36–7, 69 Youk Chhang 112, 137n196

Witness (status) 5, 15–20, 25–7, 49, 62, 85, 91, 93, 93n130, 95, 112–3, 122, 130, 131, 133–6, 150, 174, 179, 185; bear witness 22, 25, 30, 47, 108, 114, 116, 130, 133, 138–42, 147, 165, 173; difference to civil party 131–2