The Politics of Difference in Transitional Justice: Genocide and the Construction of Victimhood at the Khmer Rouge Tribunal

ABSTRACT

Although aiming to disrupt the othering that enables political violence and mass victimization, transitional justice processes – which are integral to international peacebuilding – may also (re)produce difference in intricate and possibly problematic ways. This article argues that as this dilemma is inherent to the politics of difference, it is crucial to consider how difference is constructed in transitional justice processes, and with what consequences, as this can feed into problematic processes of othering. This article focuses on the genocide charges at the Khmer Rouge tribunal in Cambodia, using transcripts of the legal proceedings and qualitative fieldwork conducted between 2013 and 2018.

KEYWORDS:

• difference
• transitional justice
• genocide
• victims
• Khmer Rouge tribunal
• ECCC
• Cambodia

Acknowledgements

My sincere thanks go to the two anonymous reviewers and the editors of the JISB for their helpful comments. I also warmly thank Pol Bargués-Pedreny and Xavier Mathieu, the co-editors of this special issue, and Elisabeth Baumgartner, who provided feedback on earlier drafts of this article. I am also grateful to the respondents quoted in this article, who shared their thoughts and experiences during my research.

Disclosure statement

No potential conflict of interest was reported by the author.

Notes on contributors

Julie Bernath is a senior researcher and programme officer in the Dealing with the Past Program at swisspeace, which is an associate research institute of the University of Basel. She holds a PhD in political science from the University of Basel and an MA in political science from the Institut d’Études Politiques in Paris. Her PhD dissertation examined the resistance to the state-sanctioned transitional justice process in Cambodia: the Extraordinary Chambers in the Courts of Cambodia (ECCC). [email protected]

Notes

1 ECCC Democratic Expert Report, 30.09.2009, Doc. No. D140/1/1. Available at: https://www.eccc.gov.kh/sites/default/files/documents/courtdoc/D140_1_1_Public_Redacted_EN.PDF [last accessed 01.10.2017].

2 See Vianney-Liaud (2014) for a comparative analysis of the definitions of genocide in the 1948 Genocide Convention and the ECCC Law. The International Criminal Court (ICC) has also adopted this definition (Article 6, Rome Statute).

3 Article 4, Law on the Establishment of the ECCC, with inclusion of amendments as promulgated on 27.10.2004 (NS/RKM/1004/006), available at: https://www.eccc.gov.kh/sites/default/files/legal-documents/KR_Law_as_amended_27_Oct_2004_Eng.pdf [last accessed 20.09.2017].

4 Ibid.

5 From a legal perspective, it is also argued that the adoption of the 1948 Genocide Convention definition upholds the basic principle of justice of nullum crimen sine lege (Ciorciari 2008, 5; Vianney-Liaud 2014, 8).

6 See e.g. the diametrically opposed positions of Schabas (2001) and Stanton (2001).

7 Co-Lawyers for Civil Parties (04.02.2010) Sixth Investigative Request of Co-Lawyers for Civil Parties Concerning the Charge of Genocide against the Khmer Nationals, Case 002, ECCC Document No. D349, available at: www.eccc.gov.kh/sites/default/files/documents/courtdoc/D349_EN.PDF [last accessed 20.09.2017].

8 In his indictment against members of the Argentine military junta for genocide, Judge Garzón for instance argued that the perpetrators attempted to substantially change the social relations in Argentine and thereby partially annihilated the national group (Feierstein 2014, 18–21).

9 Interview with a senior adviser to the Royal Cambodian government and former ECCC official, 26 January 2016, Phnom Penh.

10 Article 5, Law on the Establishment of the ECCC, with inclusion of amendments as promulgated on 27.10.2004 (NS/RKM/1004/006), available at: https://www.eccc.gov.kh/sites/default/files/legal-documents/KR_Law_as_amended_27_Oct_2004_Eng.pdf [last accessed 20.09.2017].

11 Ibid.

12 This term was already used in Cambodia before the DK regime. According to Edwards (1996), it has to be analysed in relation to the specific cultural context which shapes the meaning of genocide as the destruction of the Khmer race.

13 Interview with a senior adviser to the Royal Cambodian government and former ECCC official, 26 January 2016, Phnom Penh.

14 Interview with a civil party (female, age 46), 31 January 2016, Kampot province; interview with a civil-party representative (male, age 64), 31 January 2016, Kampot province.

15 Interview with a national civil-party lawyer at the ECCC, 7 February 2014, Phnom Penh.

16 Interview with an international civil-party lawyer, 29 January 2016, Phnom Penh; interview with a national civil-party lawyer, 30 January 2014, Phnom Penh. See also Giry (2014).

17 E.g. the 1994 Cambodian Genocide Justice Act of the US Congress, or the 1978 request from the Canadian government to the UN Human Rights Council Sub-Commission Report pursuant to the 31st Session of the Human Rights Council Sub-Commission on the Prevention of Discrimination and Protection of Minorities.

18 Interview with an international civil-party lawyer, 29 January 2016, Phnom Penh.

19 Interview with a senior adviser to the Royal Cambodian government, 26 January 2016, Phnom Penh.

20 Interview with a national civil-party lawyer, 7 February 2018, Phnom Penh.

21 Interview with an international defence lawyer, 14 February 2014, Phnom Penh.

22 ECCC Public Transcript of Trial Chamber Proceedings, 14 March 2016, Case 002/02, ECCC Doc. No. E1/401.1, 41–3.

23 Interview with a national civil-party lawyer, 30 January 2014, Phnom Penh.

24 ECCC Public Transcript of Trial Chamber Proceedings, 17 March 2016, Case 002/02, ECCC Doc. No. E1/404.1, 35.

25 ECCC Public Transcript of Trial Chamber Proceedings, 15.03.2016, Case 002/02, ECCC Doc. No. E1/402.1, p.8.

26 See ECCC Public Transcript of Trial Chamber Proceedings, 9.02.2016, Case 002/02, ECCC Doc. No. E1/388.1, p.38.

27 ECCC Public Transcript of Trial Chamber Proceedings, 02.02.2015, Case 002/02, ECCC Doc. No. E1/361.1, p. 44-46.

28 Interview with a researcher and civil society actor, 2 February 2018, Phnom Penh.

29 Informal discussion with an international ECCC staff member, 26 January 2016, Phnom Penh. See also ECCC Public Transcript of Hearing on Specification of Civil Party Reparations Awards and Accused Ieng Thirith’s Fitness to Stand Trial, 19.10.2011, Trial Chamber, Case 002, ECCC Doc. No. E1/11.1, p. 62-63. Many civil parties from the Cambodian majority population also did not understand, or felt uncomfortable with, this reparation request; see interview with a national civil-party lawyer, 7 February 2018, Phnom Penh; interview with a national civil-party lawyer, 13 February 2018, Phnom Penh.

30 Interview with a civil party (female, age 54), 31 January 2016, Kampot province.

31 Interview with a civil-party representative (male, age 64), 31 January 2016, Kampot province. Translation is my own.

32 Interview with a national civil-society actor working with minority groups, 8 February 2018, Phnom Penh.

Additional information

Funding

This work was supported by the Swiss National Science Foundation [grant number 100017_140289]; and the Fund for Early Career Researchers of the University of Basel [grant number DGK2612].