Figuring Victims in International Criminal Justice

The case of the Khmer Rouge Tribunal

Maria Elander

• Publisher: Routledge
• Year: 2018
• ISBN:
  9780429492051
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

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.

p.1

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 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

p.2

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 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.

p.3

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 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.

p.4

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. 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.

p.5

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 par...

Table of contents

• Cover Page
• Figuring Victims in International Criminal Justice
• Title
• Copyright
• Contents
• Preface
• Acknowledgements
• Abbreviations
• 1 The Victim’s Address
• 2 the Establishment of a Court
• 3 The Khmer Rouge Marriages and the Victims of Crime
• 4 Becoming Participant: Victim Representations at Trial
• 5 Photographs and Outreach: Relating Victims to Images
• 6 Conclusion: ‘Moving Forward Through Justice’
• Index