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

207 Pages·2018·3.128 MB·English

by  Maria Elander

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 judi-
cial 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 inter-
national 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 scholar-
ship 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
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and by Routledge
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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.
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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 vi
Acknowledgements viii
Abbreviations x
1 The victim’s address 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 wit-
ness 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 lead-
ers 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 miss-
ing 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 per-
petual 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-genocide-
memorial-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 num-
ber 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 exam-
ined the thesis, Anne Orford and Gerry Simpson, who acted as academic asses-
sors 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.