Just another battleground: resisting courtroom historiography in the extraordinary chambers in the courts of Cambodia

ABSTRACT

This paper examines how Case 002/01 in the Extraordinary Chambers in the Courts of Cambodia emerges as a space within which the roles of history and international justice are contested. It focuses on how the criminal trial appear to fortify the hegemony of some contested historical narrative over others in dealing with the past. The paper introduces, discusses, and analyzes the ‘strategy of rupture’ as coined by Jacques Vergès, and the ways in which this legal defense has been applied in practice not only to resist the Tribunal in itself, but also historical knowledge-making in the Cambodian transitional justice process.

KEYWORDS:

• Rupture
• courtroom history
• resistance
• Cambodia
• transitional justice

1. Introduction

In October 2004, after a long and difficult negotiation process, the Cambodian National Assembly ratified an agreement between the Royal Government of Cambodia (RGC) and the United Nations (UN) on the establishment of the Extraordinary Chambers in the Courts of Cambodia (ECCC). The chief goal of the ECCC is to try senior leaders and those who were most responsible for violations of international as well Cambodian law committed between 17 April 1975 and 6 January 1979. At the surface level, the trials in the ECCC relates to the UN’s increasing engagement with international peacebuilding, with the overall aim of creating conditions that maintain lasting peace and stability (UN Peacekeeping 2015). While this altruistic goal undoubtedly is respectable, it also invokes some important queries. Perhaps the most crucial one is the question of how a post-conflict society should deal with its ‘evil’ past, in order to ‘enable the state itself to function as a moral agent’ once again (Borneman 1997, p. 23, quoted in Koskenniemi 2016, p. 177. See also Baaz 2015a, p. 158). The question, in many ways, embodies what is today known as ‘transitional justice’ and, by extension, the international criminal justice project in international law. At the same time, the question underlines the difficulty of dealing with humanitarian crises through individual criminal responsibility and also raises serious concerns about the ability of the ‘criminal trial’ to preserve the ‘truth’ of a complicated chain of events, often closely connected to the realm of international politics, involving many actors with different vested interests.

The trial against Khieu Samphan and Nuon Chea in Case 002/01, like transitional justice in general, sheds light on how the wish to punish those (who are believed to be) individually responsible for large scale atrocities sits uneasily together with engagements of historical knowledge-making in the courtroom. Judgments, what the ECCC is established to produce, are designed to convict or acquit. However, to reach that point, the court must take note of complex, historical questions as well as rule on them; questions all of which are inherently politically salient. But are judgments primarily about reviewing and judging the past, are they not rather about creating and developing an understanding of atrocities for the future? Is there a possibility for the defendant to say ‘no’ to such endeavors and to suggest an alternate narrative on how to understand the past’s relation to the present? Put in other words, to place their alleged crimes or, perhaps more correct, actions in what they consider to be the ‘correct’ historical and political context.

Focusing on Case 002/01, this paper introduces, discusses, and analyzes the ‘strategy of rupture’ as coined by Jacques Vergès, and the ways in which this legal defense has been applied in practice at the ECCC in order not to only resist the tribunal in itself, but also, more generally, the historical knowledge-making in the Cambodian transitional justice process.

2. Some Brief Remarks on the Historical Background to the ECCC

On 17 April 1975, the Khmer Rouge captured Phnom Penh. The revolutionary movement reached the Cambodian capital after a five-year long civil war. The main goal for the new masters was to establish a socialist, socially and ethnically homogenous and equal society on Cambodian soil. As a means to this end, it was the unrelenting view of the Angkar (the Organization; i.e. the ruling body of Democratic Kampuchea, the name of Cambodia during the Khmer Rouge years) that all traditional Cambodian political, economic, social and cultural institutions had to be destroyed. A first step in achieving this vision, cities were emptied and people forcefully removed to rural collectives in the countryside (see further Baaz 2015a, p. 168–169, 2015b, p. 295, Chandler 1999, p. 192–272, 2008, p. 255–276, Kiernan 2008, Ponchaud 1978).

The Khmer Rouge rule lasted for almost four years, resulting in the deaths of some 1.7 million people. Eventually, Cambodia’s historically complicated relations with Vietnam led to the overthrow of the Khmer Rouge regime. On 7 January 1979, Phnom Penh fell. By consequence, Pol Pot and the Khmer Rouge splintered into multiple factions after the demise of the Democratic Kampuchea regime. The new regime in Phnom Penh, led by Heng Samrin was heavily dependent on Vietnam and occupied the country between 1979 and 1989 (Baaz 2015a, p. 169–171, 2015b, p. 295–296, Chandler 2008, p. 277–284, Ciorciari 2006, p. 11–12, Kiernan 2008, p. 456–460).

Democratic Kampuchea (1975–1979) together with its successors; the People’s Republic of Kampuchea (1979–1989); the State of Cambodia (1989–1993); and the Kingdom of Cambodia (1993–present), as well as what is currently happening in the ECCC cannot be understood in isolation from, on the one hand, factional struggles within the Khmer Rouge and, on the other hand, Cold War logic (Baaz and Lilja 2016, p. 149). The faction that dominated the Khmer Rouge during the era of the Democratic Kampuchea was supported by China, while the faction that later assumed power in January 1979, was supported by Vietnam and the USSR. Viewed in the context of the Cold War, the Pol Pot-Ieng Sary faction received support not only from China but also from, inter alia, the United States, the United Kingdom, and France. This financial support lasted until as late as 1992 (Baaz 2015a, p. 149, 167–170, 2015b, p. 295–297, 315, Baaz and Lilja 2016, p. 149). At this time, the Cold War had ended and the United Nations Transitional Authority in Cambodia (UNTAC) was arriving in Cambodia to begin the implementation of the Paris Peace Agreement; the treaty that led to the establishment to the ECCC (Baaz 2015b, p. 167–171, Baaz and Lilja 2016, p. 150, Chandler 2008, p. 277–300, Gottesman 2003).

In 1985, Hun Sen replaced Heng Samrin and consequently became the most influential leader in the ruling Kampuchean People’s Revolutionary Party (KPRP), the successor to the Vietnam-supported faction of the Communist Party of Kampuchea and later in the Cambodian People’s Party (CPP), the successor to the KPRP and the presently dominating political party in current Cambodian politics. Still today, Hun Sen serves as prime minister of Cambodia and Heng Samrin acts as honorary chairman of the CPP (Chandler 2008, p. 285). The short exposition above does not in any way aspire to provide an exhaustive account of what actually happened during the fateful years 1975–1979, nor does it claim to serve as the authoritative statement on the matter. It does, however, seek to point to the fact that the historical and political background surrounding the ECCC is very complex and holds several intertwined layers. There is, thus, not one, but several, ways of approaching the circumstances that exist in this nexus (see further Baaz 2015a, 2015b, 2015c, Baaz and Lilja 2016, p. 155).

3. A Note on the Sui Generis Composition of the ECCC

The negotiations to establish the ECCC first started in 1997. Then, the RGC and the UN had significantly different views on how to organize the tribunal. It was, however, clear that due to a Chinese veto, the UNSC could not forcefully establish an international court in Cambodia pursuant to Chapter VII of the UN Charter. The solution to the deadlock was the establishment of a ‘hybrid’ tribunal. The Extraordinary Chambers in the Courts of Cambodia are, as the name implies, special chambers within the domestic Cambodian court system. Chambers at the ECCC follow a ‘supermajority’ voting rule. The voting rule means that all decisions must be reached by an assenting vote of a simple majority of judges plus one (ECCC 2004). In practice, seeing as the chambers of the ECCC are staffed by a simple majority of judges from Cambodia, this means that at least one international judge must support every decision that the chambers make (Baaz 2015a, 2015b). For context, it is important to note that political interests have clearly been a driving force in establishing the temporal scope of the tribunal (see Baaz 2015b, p. 304–305). The temporal jurisdiction was bargained and reflects the RGC’s interests to maintain the control over the process in order to limit investigations to the 1975–1979 period. This is also reflected in the composition of the court staff, which consists of a majority of Cambodians (Baaz 2015b, p. 292). Likely, the rationale for accepting the restricted timeframe was that both the RGC and various Western powers, perhaps especially the United States, did not want the court’s jurisdiction to encompass hypothetical crimes committed during the Lol Non years in the Khmer Republic.

The result is that the ECCC is a unique judicial creature in international law. It is, at its core, a compromise between the common law tradition, granting the prosecutors a strong position, and the civil law tradition, using investigating judges (Baaz and Lilja 2016, p. 173). Additionally, the tribunal applies national and international law in parallel. Additionally, the responsibilities of each non-adjudicating office are shared between a foreigner and a Cambodian. Hence, there are two co-prosecutors and two co-investigating judges, sharing the responsibilities of each office (Baaz and Lilja 2016, p. 150). In practice, this results in that the co-prosecutors and the co-investigating judges must act in agreement in a variety of regards (see Arts. 5.4, 6.4, and 7, of the Agreement between the RGC and the UN 2003. See also Baaz and Lilja 2016, p. 150). Against this background, the ECCC can best be described as a ‘hybrid’; as an ‘extraordinary experiment in international law’ (see further Baaz 2015a, 2015b, 2015c, Baaz and Lilja 2016, p. 150).

4. The ‘Critical Turn’ in International Criminal Law

Individual criminal responsibility for any of the core international crimes is not a novelty. While today, it is perhaps considered commonplace that there ought to be no one ‘outside-the-law’ in the global criminal law project, this was not always the case. It was first in the International Military Tribunal at Nuremberg (IMT) that Judge Jackson famously declared that

international law imposes duties on and liabilities on individuals as well as upon states has long been recognized […] crimes against international law are committed by men, not by abstract entities, and only in punishing individuals who commit such crimes can provisions of international law be enforced” (Judgment of the IMT, in the Trial of German Major War Criminals: Proceedings of the International Military Tribunal sitting at Nuremberg, Germany, Part 22, 1950, p. 447, quoted in Duffy 2005, p. 74).

Even though the principle was construed in the immediate après-guerre, it was not until the 1990 s, after the end of the Cold War, that individual responsibility for international crimes in the international society again saw light. The creation of several International Criminal Tribunals (in for instance: Rwanda, Yugoslavia, Sierra Leone, Lebanon, and Timor-Leste) and the establishment of the International Criminal Court (ICC) in 2002 highlights a pivot in this absence of individual criminal responsibility. Inspired by this development, the field of international criminal law experienced an increased momentum in academic scholarship and in public debate (Baaz 2015a, 2015b, 2015c, Baaz and Lilja 2016, Schwöbel 2014, p. 169–170). A large portion of the contemporary discussion regarding international criminal law is, however, somewhat limited and focuses often on the positive contribution of international criminal law to various projects of reconciliation and reconstruction, on peace, justice, legality, fighting impunity and individual accountability. That is not to say that critique of international criminal law is non-existent, but there is reason to call for an increased substantive engagement with various blind spots and correlations between transitional justice, international criminal law and issues such as ideology, imperialism, struggle over memory, exclusion and injustice and conflict (Baaz 2015a, p. 161, 2015c, p. 674–675, Critical Approaches to International Criminal Law 2018).

According to Christian Reus-Smit, a ‘body of critical international legal theory emerged to challenge the inherent liberalism of modern international legal thought’ in the 1980 s. Advocates of the approach argue that ‘liberalism is stultifying international legal theory, pushing it between the equally barren extremes of “apology” – the rationalization of established sovereign order – and “utopia” – the naive imagining that international law can civilize the world of states’ (Baaz 2015c, p. 676, Reus-Smit 2014, p. 286. See further Koskenniemi 2016). These undertakings may take various forms. For instance, we may discern critical scholars who engage in a genealogy of the field (Elster 2004, Zunino 2019) and those who discuss the rise of a purported norm of individual criminal responsibility, or ‘justice cascade’ (Sikkink 2011).

Traditional international criminal law is not only legalistic but also primarily ‘problem-solving,’ which means that it takes the world order as it finds it for granted and accepts it as the given framework for action; the general objective is to facilitate this order by dealing effectively with various problems (Baaz and Lilja 2016, p. 161). Critical theory and critical international criminal law however, is ‘critical’ in a more focused and radical manner. The lowest common denominator of these latter perspectives, as understood here, is that they aspire to distance themselves from the existing world order to focus on the ways in which this order came about as well as problematizing and questioning existing institutions and/or power relations by asking not only about their origins, but also whose interests they serve (Baaz 2015c, p. 675. Cf. Baaz and Lilja 2016, p. 145, Cox 1986, p. 208–209). The objective is to expose power relations and to produce knowledge able to contribute to creating preconditions for societal change (Baaz and Lilja 2016, p. 145). Critical legal scholars, by extension, understand liberal international law as ideology and argue that ‘the motivation or “knowledge interest” of all critical research is “emancipatory”’ (Baaz 2015c, p. 678, Minkkinen 2013, p. 119).

Similarly, albeit against the historical backdrop of the Nuremberg trials, Hannah Arendt (1963, p. 233) points to one of the great dilemmas facing international criminal law, namely the problem that sometimes a tragedy may be so great that the punishing of one or a few individuals does not come close to measuring up to the atrocities. Ever since, serious doubts have been cast against the ability of international criminal law to deal with various national traumas, due to their vast historical, political and moral significance. The argument is that, if trials against international delinquents should have any significance, then that significance must lie elsewhere than in solely punishing a few individuals. ‘Elsewhere’ can be understood as establishing the truth of the events, or the possibility of having a gross injustice recognized publicly so as to contribute to processes of reconciliation (Koskenniemi 2016, p. 172–173). Yet, it is often argued that truth recovery is an auxiliary function of the international criminal justice project and that the main feature is to ascertain retribution and deterrence. We would like to suggest that all these rationales co-exist, and that in some cases, certain aspects are more prevalent than others. History-making emerges as an important part of any international criminal law trial, regardless of whether one believes it to be the most or least important element of the international criminal law project.

Legal and historical truths sometimes overlap, but often they are far from identical. From a legal perspective, strictly speaking, the only relevant question in a criminal trial is: can it be proved beyond reasonable doubt that the person accused actually committed the act they are accused of? Broader questions such as the following are in principal of less, if any, interest: why did he or she do it as well as in which context was the act committed (see Baaz 2015a, p. 163). In transitional periods, however, the debate about why persons did what they did and what is to be considered an acceptable act is contested. Whether an act should be considered criminal or not is dependent on which framework of interpretation is being applied. If a person is contributing to a social project based on an apprehension that it is moral, just and historically necessary, and that his or her individual contribution is essential in order to fulfill the wider goal – may it be liberation from oppression or happiness of mankind, says Martti Koskenniemi (Koskenniemi 2016, p. 179–182), ‘then little, if anything at all is gained by a retrospective interpretation of the effect of the effort’.

It is important to remember that for all major political events there are many stakeholders and, by consequence, many truths. Put differently, memory and history is polysemic and polyvalent in nature (Baaz 2015b, p. 319,); and to construct a truth of events that could serve as meta-narrative for the future, to move beyond a traumatic event is, per definition, a ‘struggle over memory’ (see further e.g. Dukalskis 2011, Baaz 2015b, p. 319, Baaz and Lilja 2016, p. 143). From this we can surmise that one of the goals, and perhaps the most important one, of the ECCC, namely to ‘educate Cambodia’s youth about the darkest chapter in [Cambodia’s] history’, constitutes a great challenge and is a task that requires the parties involved to take their responsibility seriously and to perform their duties tactfully in order to make the process meaningful (ECCC 2015). This debate is juxtaposed to a broader discussion relating to the role politics plays in framing collective memory and the relationship between power, law and memory. Put in the words of David Rieff (2016, p. 122): ‘efforts to mobilize and manipulate collective memory or manufacture it have been made by regimes and political parties of virtually every type’.

5. The Strategy of Rupture and the Politics of the International Criminal Trial

Jacques Vergès is a well-known international criminal lawyer, who gained his prominence from the 1950 s onwards by combining anti-colonial political struggle with defending a long chain of high-profile clients, from Algerian Liberation Organization activist Djamila Bouhired to Klaus Barbie, Ilich Ramírez Sánchez (better known as ‘Carlos the Jackal’) and lastly, Khieu Samphan, former head of state of Democratic Kampuchea (Baaz and Lilja 2016, p. 146).

In addition to his work as a legal practitioner, Vergès is well-known for his theoretical work, especially as being the chief theorist of the ‘strategy of rupture,’ a legal defense strategy inspired by Marxism and postcolonial theory. In the strategy of rupture, the defense lawyer seeks to reverse the legal process by turning it into an attack not only on the prosecutor and the judges, but also the legal system as such (see further Baaz and Lilja 2016, p. 146; Widell 2012, p. 7). At the core of this jurisprudential thinking, there is the relationship between, on the one hand, the defendant and the defender (the subaltern) and, on the other hand, the judges, the prosecutors, the courts, and, by extension, the entire legal system as well as the structures of power it upholds (the ‘superior’). For Vergès, it is paramount to not neglect what the courts and the legal system ultimately stand for; that is, to serve the goals of those in power. For him, the legal system is inherently political, since it serves the interest of the state through prosecutions and the law as well as the prosecutors and judges; the courtroom is ‘just another battleground’ (Baaz and Lilja 2016, p. 146, Widell 2012, p. 31, p. 99). Thereby, from this perspective, law and jurisprudence becomes a key to power. Despite that the ‘established order’ has the upper hand, its power and legitimacy can be ‘resisted,’ it can be challenged, negotiated, undermined and ultimately be made to serve the interests of the defendants and their utopias (Baaz and Lilja 2016, p. 146, Baaz et al. 2017, p. 167). In this regard, Vergès thinking revolves around the conceptual couplet of ‘connivance’ and ‘rupture.’ The main difference between the two concepts is their approach to the established societal order (Baaz and Lilja 2016, p. 143). Connivance shares, or at the very least accepts the interests and values of the established order and the legal system that it represents, while rupture supports an alternative set of interests, namely the goals of the subaltern. On an overall level, the success of a trial is dependent on the consent of the defendant and their defender. That is, the defendant and the defender must accept the court and recognize its legitimacy. Drawing from a domestic context, this is most often the case. The defendant and the defender can, however, also choose to defer to the legitimacy of the court and the interests of power it represents, and by this, refuse participating in a ‘dialogue’ with the prosecutor and judges (Baaz and Lilja 2016, p. 146–147, Widell 2012, p. 11, 100–101). The strategy, thus, emerges as a tool for resistance.

The strategy of connivance primarily seeks to put various facts into question, emphasize extenuating circumstances and search for as lenient a judgment as possible. The strategy of rupture, on the other hand, is closely linked to the concept of the ‘différend’, coined by Jean-François Lyotard. He describes a case of différend between two parties as taking place ‘when the regulation of the conflict that opposes them is done in the idiom of one of the parties while the wrong suffered by the other is not signified in that idiom’ (Lyotard 1988, p. 9. Cf. p. xi, Baaz and Lilja 2016, p. 147–148). Through this, the strategy of rupture departs from the assumption that at least two incompatible frameworks or contexts exist. However, as Lyotard notes, ‘[o]ne side’s legitimacy does not imply the other’s lack of legitimacy.’ Thereby, several interpretations can exist side by side, peacefully. This is, however, not possible in a trial where it is vital to choose and decide on one interpretation (Baaz and Lilja 2016, p. 147, Baaz et al. 2017, p. 168). To accept this, the conditions under which the trial is performed, who should be the accused, what deeds to focus on and so forth, is ‘to accept one interpretation of the context among those between which the political struggle has been waged,’ and by extension, bestowing it legitimacy (Baaz et al. 2017, p. 168). From a different perspective, ‘[a] trial that “automatically” vindicates the position of the Prosecutor is a show trial in the precise Stalinist sense of the expression’ (Koskenniemi 2016, p. 183–184. See also Baaz and Lilja 2016, p. 147).

One possibility to resist the chosen interpretation is to argue in favor of an alternative one. For instance, an interpretation departing from what is considered to be an alternative moral (religious or profane) ground. Such an approach could be labelled moral rupture. Another possibility, however, is not to advocate for an ‘alternative’ approach, but rather to argue in favor of a consistent application of the existing approach. Even though Vergès, at least to a certain extent, draws on both these alternatives, his unique contribution lies in the application of a radical ‘intra-legal’ approach (Baaz and Lilja 2016, p. 147, Koskenniemi 2016, p. 191, Widell 2012, p. 102–104). The first and most important step in the strategy of what can be labelled legal rupture, in contrast to moral rupture, is to identify and explicate violations of existing principles by displaying that they are applied selectively or inappropriately and that the prosecutor(s) and judges are (institutionally) biased, and, by extension, that the existing legal order is neither just nor legitimate. Thereby, the strategy of legal rupture departs from the idea that ‘if justice is selective, it is not justice at all’ (Baaz and Lilja 2016, p. 147, Widell 2012, p. 102).

When the legal system is undermined as such by the identification and exploitation of inherent contradictions, the defense is given an opportunity to start to reverse the legal process and then turn the defense of the defendant into an attack on the legal system as well as the interests that it serves (Baaz and Lilja 2016, p. 147; Bhandar 2012, p. 68). From a different perspective, ‘the strategy of legal rupture creates a space of political [resistance] in the courtroom that cannot be absorbed or appropriated by the legal order’. It is this lack of co-option that is at the very heart of the strategy (Bhandar 2012, p. 69).

Adding to what is taking place in the courtroom, Vergès also proposes a strategy of ‘mediatization’. This important part of the strategy of legal rupture seeks to mobilize necessary popular support for the court case outside the courtroom in order to create political pressure and to intensify the political dimension of a case (Baaz and Lilja 2016, p. 147, Tenove 2008). The ultimate goal is to delegitimize the court and the legal process.

6. Competing Visions of History in Case 002/01

Using international criminal law to construct a final judgment that can enable a society to move beyond a trauma and towards reconstruction and reconciliation is very difficult. Starting out, for international criminal proceedings to function constructively in transitional justice processes, they need to be credible. If they are not, they risk being perceived as overtly political and a blunt form of Siegerjustiz (cf. Baaz and Lilja 2016, p. 148; Heller and Simpson 2013, p. 1–13). In the nexus to these discussions, there is an ongoing debate within the transitional justice field about ‘truth vs. justice’ and ‘peace vs. justice,’ and the ways in which trials can be sequenced with other measures (see Dukalskis 2011; Dancy and Wiebelhaus-Brahm 2015). To be specific, the ECCC is not only about punishing a few individuals, but also, and more importantly, about establishing the ‘truth’ of an intricate chain events, with the ultimate goal to contribute to an understanding of what actually took place in Democratic Kampuchea. By extension, the ECCC is about constructing a successful final judgment that can serve as a point of departure with the ultimate goal of reconstructing the Cambodian state as a moral agent once again; to distance the current state from the Other, ‘bad,’ historical state of Democratic Kampuchea. Seeking to fulfill such a task is not only challenging and delicate but it is also potentially dangerous (Baaz 2015a, p. 173).

When the closing statements Case 002/01 were opened in October 2013, the floor was first given to Pich Ang, the Civil Party Lead Co-Lawyer. He began by giving an overall characterization of the Khmer Rouge and what, he believed, was at stake in the trial:

[T]he Khmer Rouge regime […] was designed to impose the vision of a utopian agricultural social order in Cambodia with record speed and remarkable disregard of the consequences on the populace–and this is underpinned by the draconian policy intended to push the “extremely marvelous, extremely wonderful, prodigious leap forward” – In the rush to protect and bring to fruition the Communist Party of Kampuchea’s (CPK) massive work of social engineering, the entire population of Cambodia was forced out of their homes and into the fields to serve the Revolution – On the basis of the evidence, Nuon Chea and Khieu Samphan are guilty of the crimes against humanity, extermination, murder, political persecution, and other inhumane acts, enforced disappearance, and attacks against human dignity, as co-perpetrators and participants in the joint criminal enterprise (E1/228.1, Public Transcripts of Trial Proceedings, Trial Day 215, 16 October 2013, p. 4-6, emphasis added).

The characterization of the trial given by Pinch Ang, concerning the state was to a great extent shared by the national Co-Prosecutor, Chea Leang, who in her opening statement opined that

[t]his trial is about the criminal responsibility of Nuon Chea and Khieu Samphan for crimes that shocked the conscience of humanity. In the next three days, I and my colleague will outline how the evidence in this case has proven that Nuon Chea and Khieu Samphan each played a unique and critical role in a criminal enterprise that prosecuted, tortured, and killed their fellow Cambodians, millions of innocent civilians, including women, children, the elderly and most vulnerable […] [E]vidence that has been presented in this phase of the trial has shown that the crimes committed were the result of criminal policies and in furtherance of a criminal plan that preceded and extended throughout the period of the Democratic Kampuchea regime. The Accused […] formulated and furthered the plan and these policies, knowing these crimes would result. What happened is what they planned.

William Smith, Deputy International Co-Prosecutor, followed in a similar vein, albeit in a different wording from his national counterpart, noting that

[o]n the 17th of April 1975, the CPK leaders established the first slave state of the modern era. Every aspect of that slave state was run and operated under the watchful eye of the CPK Party Centre. The CPK slave state operated as an ongoing and continuous criminal system of persecution, enslavement, forced transfer, forced labor, inhumane treatment, and murder directed primarily at the New People [primarily the ones evacuated from Phnom Penh and other bigger cities], and that continued until the 7th of January 1979 (E1/231.1, Public Transcripts of Trial Proceedings, Trial Day 218, 21 October 2013, p. 63, emphasis added).

Echoing Heng Samrin, Smith characterizes Democratic Kampuchea as a slave state. Against this background, we would like to argue that the prosecutor’s discursive strategy centered on reframing the CPK and Khmer Rouge from a political movement into a criminal one After this, it can be argued, biased description, the floor was given back to the national Co-Prosecutor, wanting to make a clarification:

Let me say at the outset […] that this case is not about Communist ideology or about competing political ideas. Neither Communism, nor Socialism, nor any other political system or philosophy is on trial before this Court. This is a case about violence, enslavement, and death on a mass scale. It is about crimes inflicted on the people of Cambodia, crimes that were committed by forces and cadres commanded by Nuon Chea, Khieu Samphan, and other leaders of the Communist Party of Kampuchea (E1/229.1, Public Transcripts of Trial Proceedings, Trial Day 216, 17 October 2013, p. 6).

The Prosecutors’ statements all emphasize different things, but it is clear that they are all consistent in their understanding on what happened in Cambodia during the years 1975 and 1979. We can see that the Prosecutors’ mediate a one-dimensional picture of the former state in Democratic Kampuchea and the agency of Khieu Samphan and Nuon Chea within this structure (Baaz and Lilja 2016, p. 144). The notion of history is uncritically approached, presented as an objective, fixed, and definite truth. On the other hand, it is possible that the Prosecutor’s line of reasoning should be viewed through the lens of the principle of adversarial criminal procedure; meaning that each side is to present its case as persuasively as possible. This procedural principle is regarded as important within an international criminal law discourse as well as within a domestic criminal law discourse and could thus be said to be an intrinsic part of the ‘ritual’ that is the criminal trial. Yet, notwithstanding the clarification of the Co-Prosecutor, it is difficult to move beyond the impression that the trial is about prosecuting a certain interpretation of an ideology, an undertaking undoubtedly informed by political agendas (Baaz 2015a, p. 177). Thus, here we can perceive how a representation of history is laid forth beneath the veneer of the international law argument.

On the other side of the spectrum, however also being an important part of the adversarial criminal procedure, the accused must be allowed to respond to what the Prosecutor says. If they are not given that opportunity the trial risks ending up being a ‘show trial.’ Herein lays a dilemma. The court has no idea what the accused might say or do, and the accused may say or do something very indicting for the legitimacy of the proceedings. It is, at the very least, a reasonable assumption that the accused will not subscribe to the world of beliefs of the prosecutor or the court. In this light, there exists the theoretical possibility of falsifying, or at least negotiating, the understanding of history laid forth (Baaz and Lilja 2016, p. 147). Indeed, Victor Koppe, Nuon Chea’s international Co-Lawyer, did precisely that. His statement contains several important dimensions and is therefore quoted in length

[T]he Prosecution […] tries to confuse the public and this Chamber by attaching simplistic and misleading titles to complex historical events, and no more is this strategy […] clearly on display than in the Co Prosecutor’s fixation on their new favorite term about Democratic Kampuchea, the so called “slave state.” After six years of proceedings, the Co-Prosecutors now have the gall to say the common purpose of the CPK senior leaders was to create–and I quote – “a slave state”. Now, this term is completely useless as a means of understanding Democratic Kampuchea and most especially the intent of CPK policy. Allow me to remind the Chamber that although the proceedings against our client have been ongoing for more than 6 years, the term “slave state” entered the lexicon of this Trial less than six months ago, on 8 May 2013, during the testimony of Philip Short – And Mr. Short, who invented this phrase, set foot in Cambodia for the first time in 1993. He began his research on the CPK in 1999. He speaks no Khmer; he reads no Khmer. Not a single writer, observer, academic, or first-hand witness to the events in Democratic Kampuchea has ever employed this phrase. Yet the Co-Prosecutors now tell us that Philip Short’s opinion is the best description available of the CPK’s purpose, not the CPK’s own political circulars, not Pol Pot’s speeches, the uncorroborated opinion of a British journalist who appeared in Cambodia 20 years after the fact and who does not speak a word of the language. The Co-Prosecutor’s recent epiphany that the common purpose of the CPK senior leaders was to create a so called “slave state” […] as such doesn’t even pretend to be genuine. In the Closing Order, issued in September 2010, the Investigating Judges alleged that – and I quote: “The common purpose of the CPK leaders was to implement rapid Socialist Revolution through a great leap forward and to defend the Party against internal and external enemies by whatever means necessary.” Even the Co-Prosecutors who argued in their submissions after the conclusions of the investigation that enslavement was one of the policies of Democratic Kampuchea, claim that the overall intent of the joint criminal enterprise was – and I quote – “to enforce a political revolution and destroy any political opposition to the CPK’s rule.” Now, obviously we quarrel with the way these formulations describe the CPK’s attitude towards so called enemies, but at least these formulations acknowledge that the CPK had a purpose, that the CPK had political objectives, that they were fighting for something. In the Co Prosecutor’s final trial brief and their closing submissions, all of this becomes irrelevant. Objectives no longer matter; context no longer matters. The CPK is transformed from a political movement into a criminal one. It becomes an entity whose purpose was to enslave as such. Now, this is a bad faith effort to distract from the question the Chamber should be asking itself, and that question is whether Nuon Chea intended that the CPK Socialist Revolution, which was its true common purpose, would involve the commission of criminal acts. And the clear answer to that question is that it did not […] Have we and the Co-Prosecutors been trying the same case in the same courtroom for the last two 2 years? (E1/232.1, Public Transcripts of Trial Proceedings, Trial Day 219, 22 October 2013, p. 14-17).

As highlighted by Koppe, the strategy applied by the Prosecutors in Case 002/001 is problematic on multiple grounds. This includes the fact that what will be concluded in Case 002/01 will also have bearing on Case 002/02. The strategy chosen by Koppe points to the difficulties in establishing the truth of a complex series of events. The Prosecutors are, as argued by Koppe, not only acting in bad faith, but they are also acting in contradiction to the very aim of the ECCC and, by extension, this undermines the potential of the tribunal to serve a role in the important Cambodian reconstruction and reconciliation process (Baaz and Lilja 2016, p. 151).

Drawing from Koppe, it appears as if the use of political rather than legal and/or functional delimitations regarding what historical ‘facts’ are to be deemed legally relevant, and how they ought to be interpreted, is problematic. Arthur Vercken, one of Khieu Samphan’s defense counsels together with Vergès, elaborates on why this is the case in the beginning of his closing statement in Case 002/01.

The voice of Jacques Vergès is missing today. […] Not only because he had the talent of a lawyer, but because he went across all these years of history, the history that is the subject of this trial today. This aspect of the historical context – that is anecdotal for the Prosecution – but which is at the very centre of this trial today. […] Some people may think that the history is a sideshow. Some may think that the events that occurred between 1975 and 1979 sprung from nothing. That it is our client that caused the Cambodian people to go malnourished. There are so many accused persons who are not in the dock. Some accused persons are missing. I am not talking of Ieng Thirith or Ieng Sary […] I’m talking of the antagonists in the Cold War – that Cold War which is directly linked to the Cambodian tragedy. We should add to those in the dock the American government, who started the bombings. We talk of the American bombings as if it is just an anecdote, but how do you explain the famine from 1975 to 1979 without talking of those years of destruction – of random destruction? How? Well, yes, it is very simple. […] Someone has to explain. Someone has to pay the price (E1/234.1, Public Transcripts of Trial Proceedings, Trial Day 221, 25 October 2013, p. 1–2, 58–60).

The defense presented by Vercken and his team of lawyers closely parallels the strategy of legal rupture as coined by Vergès. Despite Vergès being physically absent from the courtroom in October 2013, his spirit was very much present. The defense strategy that was employed aims to show the political nature of the ECCC. That is, that the tribunal primarily serves the interests of various key actors in the Cambodian tragedy – the UN as an organization, but also the United States, the United Kingdom, Thailand and China – which all have an intricate relationship with the Khmer Rouge, the defeated Pol Pot faction, and Hun Sen and the CPP. Vercken’s overarching goal is thus to establish a case of the differend, suggesting that two separate frameworks or historical accounts exist and that the one promoted by the national authorities must be questioned, deconstructed, and added to. From this perspective, in response to Koppe, it appears as if they and the Co-Prosecutors have not been trying the same case in the same courtroom for the last two years (Baaz and Lilja 2016, p. 152).

Later in his closing statement of Case 002/01, Vercken appealed to the audience and the media, which were following the proceedings live when he said:

Well, I recall that most of you are from the Anglo-Saxon system and you are, therefore, lawyers disguised as prosecutors. So, I can suppose, therefore, that you are ready to tell any story, in any manner to win your case. Unfortunately, that is the opinion that we, the defense lawyers, are accustomed to having. Even though your first commander [former international co-prosecutor Andrew Cayley] defected recently, you believe that you are on a commando mission, a mission which consists in obtaining a conviction at all cost. (E1/234.1, Public Transcripts of Trial Proceedings, Trial Day 221, 25 October 2013, p. 1–2, 58–60).

What is implied in Vercken’s statement is that the prosecutors in fact speak from a subject position other than that given and expected. Hence, a hybrid or entangled subject position is suggested (embracing characteristics of both ‘lawyers’ and ‘prosecutors’), which is played out but still hidden to the general public and the judges. By representing the prosecutors as disguised and operating by modifying given rules, Vercken’s statement might be understood as an example of the strategy of legal rupture. Overall, by displaying what he points out as violations of existing principles, he is implying that the legal order therefore is neither just nor legitimate.

Nil Nonn, the president of the Trial Chamber, interrupted Vercken throughout his statement, imploring him to use his words professionally and abide by the Code of Conduct for lawyers. Eventually, the president declared:

I think your statement is out of the scope of this trial. So, make sure that your statement is related to the facts adjudicated before this Chamber, and as part of the Closing Order. […] You cannot compare this Chamber to a theatre […] (E1/234.1, Public Transcripts of Trial Proceedings, Trial Day 221, 25 October 2013, p. 37–38; emphasis added).

Vercken responded to the president’s interference as follows:

Yes, of course, I’m well aware of this, Mr. President. This is why I started by reading your decision again at the beginning of my statement, the decision of October 2012. I’m also aware that the prosecutors are trying in their submissions to encourage you not to respect this decision that you took in October 2012. And therefore, this is why while anticipating the possibility that you are seduced by the proposals made by the Prosecution that, despite your assertion that the scope of this trial had been defined and it would be respected. This is why I’m taking the liberty of pleading this point. If you had allowed the prosecutors to express themselves and plead points that are outside of the scope of this trial, why therefore, should I now not be allowed to answer to them? What kind of justice is this? (E1/234.1, Public Transcripts of Trial Proceedings, Trial Day 221, 25 October 2013, p. 37–38).

His answer indicates that Vercken, following the strategy of legal rupture, seeks to delegitimize the tribunal, by arguing that it is not applying its own rules, is being biased and thereby compromising principles of legal equality, legal unity, and legal certainty; what he considers the necessary principles to meet in order for a legal order to be legitimate.

Vercken and Koppe both engage in response to the arguments of the Prosecutors. They seek to point to various facts they believe to be important in understanding contextual matters that stand at the center stage for the proceedings; how they believe certain historical, structural, and ideological issues are to be approached, how to understand the ECCC’s intra-legality and so forth. In many ways, they both embody the strategy of rupture in the sense that they do not ‘connive’ in the setting of the court. Rather, by pointing to various circumstances the judgment is unable to subsume, the defense team appears to decline to participate in historical knowledge-making in the courtroom. As such, their chosen strategies emerge as acts of ‘resistance’ (Baaz and Lilja 2016, p. 154).

7. Concluding Remarks

In conclusion, the proceedings in Case 002/01 at the ECCC leads us back to the Arendtian apprehension in regards to the ability of the international criminal trial to encapsulate the ‘truth’ of a complex series of events. The analysis, we would like to suggest, points to the ways in which the international courtroom emerges as ‘just another battleground’ for competing historical frameworks. As in any battleground, dissent is unavoidable. The more crucial inquiry, however, is how we should deal with it. What has happened in Cambodia is complex and holds several intertwined layers and cannot be understood in binary terms. Monopolizing the story, we believe, cannot be anything else but an ideologically contingent narrative and an extension of the conflict that lies at the heart of the proceedings. It is against this background Vergès concept of legal rupture comes into play, and by extension, is the key contribution of the present paper in the nexus to the literature on ‘truth-making’ through international criminal law.

The arguments pursued by Khieu Samphan’s and Nuon Chea’s defense teams, which we would argue to be critical international law put into practice, show how the strategy of rupture can help, at least theoretically, in painting a more nuanced picture of courtroom historiography, or at the very least negotiating and challenging the official picture. The presence of such arguments per se induces a call for balancing our ambitions with regards to creating historical records through the international criminal trial. In line with this, the strategy of legal rupture is used by the defense team to resist not only the proceedings in the ECCC but also the entire Cambodian transitional process, and, by extension, the post–Cold War global liberal project. The consequences of such a response are far-reaching. Its application may be perceived as belligerent, not only by the prosecution and the judges, but also by the many people who have suffered serious abuses, such as the victims of the atrocities in Cambodia during the Pol Pot years. To feel sympathy for those who have suffered severely and lost gravely is easy. For those who are charged to be responsible for causing pain and suffering, it is much harder, if even possible at all, to mobilize sympathy. Yet, quite often, it is difficult to understand why the painful past did actually happen. We prefer to approach it in terms of a simple good-evil storyline in order to attain comprehension. Against this background, we would like to suggest that it is important that the broader goals of international criminal justice relating to, inter alia, memorialization and education are not defined or defended by the ones who are being charged for various international crimes, or the persons defending them. These goals are thrust upon them. Holding the individuals who are charged for various crimes and their defenders responsible for accommodating for such a lenient process as possible does not make sense. The real battle for the defense teams has not been about having the defendants released, but in challenging the official historical and didactic aspects of the trial. By resisting the metanarrative suggested jointly by the international society, the CPP, and the ECCC, the defense team have tried to undermine what they consider political power. They have also tried to display a much broader political understanding of the Khmer Rouge and Cambodian trauma than the one suggested by those in power. The defense teams have not denied that terrible things happened in Democratic Kampuchea, but rather have strived to put them into, what they consider, a ‘correct’ historical and political context as well as to problematize the intention behind what happened and who should be held responsible. As a part of this, the two defense teams have tried to undermine one of the unwritten political goals of the ECCC, namely, to establish a gap between the CPP and the Khmer Rouge, in order to ‘enable the state itself to function as a moral agent’ once again.

In August 2014, the Trial Chamber of the ECCC sentenced Khieu Samphan and Nuon Chea to life imprisonment (ECCC 2015b). In November 2016, the Supreme Court Chamber upheld the life sentence, but reversed the conviction in part. Nuon Chea died in August 2019 and it appears likely that Khieu Samphan will remain in custody for the rest of his life. As such, many questions continue to be unmapped. The paper thereby points to some general theoretical findings that can be subject to treatment in future works. For instance, in what way does the focus on the individual in the international criminal trial impact the perception of history disseminated in the judgments of the international criminal tribunals? Does it make sense to employ the traditional setting of a criminal trial coupled with the immediate risk of punishment in the struggle for these broader contextual issues? Engaging with these questions falls outside the scope of this paper, but remain highly relevant to consider.

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No potential conflict of interest was reported by the authors.

Additional information

Notes on contributors

Filip Strandberg Hassellind

Filip Strandberg Hassellind is a doctoral candidate in international law at the University of Gothenburg in Sweden. His primary research interest is genocide and international criminal law. His current research looks at the nexus between genocide, the concept of gendercide and resistance.

Mikael Baaz

Mikael Baaz is a full Professor in International Law as well as an Associate Professor in Political Science and an Associate Professor in Peace and Conflict studies. He works at the University of Gothenburg, Sweden. Baaz’ core research interest is various aspects of the international society, in particular international law and international criminal law as well as resistance and social change. He has, together with Professors Mona Lilja and Stellan Vinthagen, written the book, Researching Resistance and Social Change: A Critical Approach to Theory and Practice (Rowman and Littlefield, 2017).