Using International Criminal Law to Resist Transitional Justice

Legal Rupture in the Extraordinary Chambers in the Courts of Cambodia

in Conflict and Society

ABSTRACT

An increasing body of literature focuses on negotiations of transitional justice, but not much has been written so far regarding contestations over its practices and the refusal of states and individuals to participate. Given the remaining legalistic dominance, this is particularly true regarding the field of international criminal law. Very little, if any, work in international criminal law engages with the topic of “resistance.” Departing from this gap in research, focusing on Cambodia and the Extraordinary Chambers in the Courts of Cambodia (ECCC), the objective of this article is to introduce, discuss, and analyze the “strategy of rupture”—as developed by the late French lawyer Jacques Vergès—and the ways in which this legal defense has been applied in practice at the ECCC in order to resist not only the Tribunal per se, but also the entire Cambodian transitional justice process and, by extension, the post–Cold War global liberal project.

Introduction

Man is very complex, his opinions and his mind are neither black nor white. The judge, however, asks binary questions that must be answered “yes” or “no.” At the end of the trial there is the prosecutor facing the defense. Both lawyers are drawing their arguments from the same dossier—how can either account be the complete truth?

—Vergès (quoted by Tenove 2008)

The beauty of a trial can be measured by the trail it leaves behind, long after the sentence has been pronounced.

—Vergès (quoted by Sandberg and Follath 2008)

With the end of the Cold War, the strategic context for peacekeeping in international society changed profoundly. The United Nations (UN) shifted as well as expanded its operation on the ground, from “traditional” missions including generally observational tasks carried out by military personnel to much more complex and multidimensional undertakings, involving a wide range of human resources. The design of these multidimensional missions was made to ensure the implementation of comprehensive peace agreements and assist in creating the foundations for sustainable peace (UN Peacekeeping 2015).1

With the aim of bringing a prolonged and difficult conflict to an end, but also with the aim of using the country as a showcase of liberal post–Cold War transitional justice and state building, the Agreements on a Comprehensive Political Settlement of the Cambodia Conflict (henceforth the Paris Peace Agreements) were signed in Paris on 23 October 1991 under UN supervision. The Agreements invited the UN Security Council (SC) to establish the United Nations Transitional Authority in Cambodia (UNTAC) and to provide it with the necessary mandate set out in the agreements. The SC fully supported the Paris Peace Agreements and in its Resolution 718, adopted on 31 October 1991, requested the secretary-general to prepare a detailed implementation plan (S/RES/718; UN 2015). By Resolution 745, adopted on 28 February 1992, the UNSC established the UNTAC (S/RES/745) and what followed was, at the time, the most costly and elaborate peace operation in the history of the organization. Some 22,000 military and civilian personnel were organized at a cost of approximately US$1.7 billion to implement the Paris Peace Agreements (Berdal and Leifer 1996: 25, 36).

The ambitious goal of the UNTAC was to reconstruct Cambodia, a country that was destroyed by bad governance, decades of civil war, and gross violations of human rights, by supervising or controlling all aspects of the government between March 1992 and May 1993 and then, at the end of the mandate period, by holding free and fair elections that would lead to a new liberal and democratic constitution (see further the Paris Peace Agreements; Baaz and Lilja 2014).

Another important objective of the Cambodian transitional process—to reach not only reconstruction but also reconciliation and move beyond the country’s traumatic past—was to bring the senior leaders of Democratic Kampuchea, which was the name of Cambodia during the rule of the Khmer Rouge, to justice. The process to fulfill this objective was initiated during the UNTAC period, but it was not until October 2004 that the Cambodian National Assembly finally ratified an agreement between the Royal Government of Cambodia (RGC) and the UN on the establishment of a “hybrid” war crimes tribunal—the Extraordinary Chambers in the Courts of Cambodia (ECCC)—to try senior leaders and those believed to be most responsible for grave violations of national and international law committed between 17 April 1975 and 6 January 1979. The actual criminal proceedings in the ECCC eventually started in mid-2007 (see further Baaz 2015a, 2015b).

Besides providing justice to the Cambodian people, the trials in the ECCC are also, it is argued, about educating Cambodia’s youth about Democratic Kampuchea and the Khmer Rouge as well as strengthening the rule of law and to “set an example for people who disobey the law in Cambodia and for cruel regimes worldwide. If criminals know that they will be held accountable, they may be deterred” (ECCC 2015a; emphasis added). The scope and ambition of the tribunal is thus vast, and the legacy of the ECCC will be significant for Cambodia’s future development, having developed into an important site for ongoing struggle over memory and truth regarding crimes committed in Democratic Kampuchea and who should be held accountable.

On an overall level, the field of transitional justice has grown significantly since the end of the Cold War and now includes marketization, democratization, the universalization of the rule of law, and, not least, individual criminal responsibility (see, e.g., McEvoy 2007: 412; Nagy 2008: 275; Schwöbel 2014: 264–280; Sriram 2007: 579). Even though the concept first emerged among human rights advocates, the emerging “peacekeeping community” soon adopted “transitional justice” and today it constitutes an integral part of the post–Cold War liberal “peacebuilding” model (Buckley-Zistel and Zolkos 2012: 3; Jones, Bernath, and Rubli 2013: 7; Rubli 2012: 3; Sriram 2007: 579).

Since the birth of the transitional justice field it has, however, been criticized from different vantage points. It has, inter alia, been argued that it is saturated by Western liberalism reducing it to nothing other than imperialism (in new clothes); that it is designed according to the principle that “one-size-fits-all”; that the solutions provided are not only decontextualized but also technocratic and legalistic; and that it produces “subjects and truths that are blind to gender and social injustice” (Duffield 2001; McEvoy 2007: 414; Nagy 2008: 275–276; Newman, Paris, and Richmond 2009; Shklar 1964). In short, the field is contested and criticized for being: “biased,” “neo-imperial,” “westoxificated,” “masculinist,” “legal positivist,” and “legalistic” (Buckley-Zistel and Magdalena Zolkos 2012: 8; Franke 2006: 825; McEvoy 2007: 414, 418; cf. Critical Approaches to International Criminal Law Research Network 2015).

It is, however, not only transitional justice per se that is being criticized and contested, but also the fact “that it is promoted as a ‘neutral’ response in a context of supposedly ‘problematic’ on-going struggle and contestation” (Jones, Bernath, and Rubli 2013: 9). In fact post–Cold War liberal transitional justice aims “to establish the values of neoliberal market economics, statism and political plurality, and thus comes to represent the ideals of [a particular] global liberal governance” (Pugh 2004: 41). This, in turn, may lead to dissatisfaction, alienation, and “resistance” against the approach as such (Jones, Bernath, and Rubli 2013: 9).

Following such criticism there is currently increasing interest in negotiations of transitional justice, but not much has been written so far regarding contestations over its practices and the refusal of states and individuals to participate. Given the remaining legalistic dominance, this is particularly true regarding the field of international criminal law. Very little work in international criminal law engages with the concept of “resistance” in a theoretically sustained way or discusses various “practices of resistance” on the ground.

Departing from the need for more extensive research within the fields, the objective of this article is thus to introduce, discuss, and analyze the “strategy of rupture”—as developed by the late French criminal defense lawyer Jacques Vergès (1925–2013)—in general and the ways in which this legal defense has been applied in practice at the ECCC in order to resist not only the Tribunal per se but also the Cambodian transitional justice process as such and, by extension, the entire post–Cold War global liberal project. In doing so, the article not only contributes to the growing literature on critical transitional justice and critical international criminal law in general, resistance studies and the “strategy of rupture” in particular, but also to a deeper understanding of the processes of reconstruction and reconciliation that currently take place in Cambodia and the ECCC.

The article is based on observations made during several field trips to Cambodia and the ECCC between 2007 and 2014, including at the time of the closing statements in Case 002/01, the legal case on which this article focuses. Considering the extent of foreign intervention, the high symbolic value, and the fact that resistance against the transitional justice process is played out in the ECCC, Cambodia is a unique case given the objective of this article. Case 002/01 is the most important and interesting case of the ECCC, since it is about deciding who should be held politically accountable for what happened during the Democratic Kampuchea years. Besides observations, the article is also based on an immanent reading of ECCC documents, in particular the official transcripts from Case 002/01, scholarly texts, and international as well as Cambodian media.

The next three sections outline our theoretical framework in reference to critical international criminal law, resistance studies, and “the strategy of rupture.” Thereafter follows a brief historical and political background of the ECCC and an overview of its establishment and design. Following this, Case 002/01 is introduced and analyzed using our theoretical frame and focus on legal rupture. In a final section, some key problems of liberal transitional justice and international criminal law in the case of Cambodia are highlighted, including the liberal vision that there should be nothing outside of law and that criminal law can be used to deal with events of enormous moral, historical, and political significance.

Critical International Criminal Law

Much of the contemporary discussion about international criminal law deals with its positive contribution to various projects of reconciliation and reconstruction, peace, justice, legality, fighting impunity, and individual accountability. Critics of international criminal law indeed exist, but they are rather “problem-solving” in character and often focus on its effectiveness. What is largely missing, however, is any substantive engagement with various blind spots and complicities of international criminal law, including ideology, imperialism, struggle over memory, exclusion, injustice, and conflict. It is such blind spots that are the focus of critical international criminal law (Baaz 2015a; Critical Approaches to International Criminal Law Research Network 2015).

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 1980s. 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” (Reus-Smith 2014: 286. See further Koskenniemi 2006).

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. Critical theory, critical international criminal law, and, as we shall see, resistance studies are, however, “critical” in a more focused and radical manner. The lowest common denominator of these “perspectives,” as we understand them, are 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 (cf. Cox 1986: 208–209). The objective is to expose power relations and to produce knowledge able to contribute to creating preconditions for societal change. 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’” (Minkkinen 2013: 119).

Resistance Studies

Even though a number of studies, for example, within anthropology, address the idea of “resistance,” recently some scholars have, due to the changing world order, required new research regarding the concept. David Couzens Hoy (2005: 6–7), for example, argues, that from a theoretical standpoint the current world order motivates a rethinking of the rhetoric of resistance in large. After the collapse of the Berlin Wall and the dissolution of the USSR, and in an era of globalization where the concept of resistance is heard more often than “revolution,” “its connotations must be clarified.” This observation is particularly true regarding the field of transitional justice and in this lies a paradox: first, because of the important role that resistance has been shown to play in social change and transition in general, and second, the dominating role that international criminal law has been shown to play within transitional justice (Baaz 2015a).

What qualifies as resistance varies depending on context; so do the objectives as well as the ways in which various forms of resistance are articulated and performed (Lilja and Vinthagen 2009a: 11). In this vein, resistance studies focuses on different practices performed by subjects in opposition; sometimes in opposition to a distinct decision maker in a powerful position, and other times in opposition to a discourse or a field in which the power is more diffuse and difficult to locate. Power can, according to our understanding, be material, ideational, or, as is most often the case, material and ideational at the same time. Regardless of type, resistance mostly exists in relation to power and what type of power affects what type of resistance as well as the effectiveness of various resistance practices: violent or nonviolent, open or hidden, organized or individual, conscious or unconscious, et cetera. Power, however, is not only about the ability to influence a decision in a particular direction but also about agenda setting, determining what can be discussed, and which questions should be given priority (Baaz 2015a; Lilja, Baaz, and Vinthagen 2013; Lilja and Vinthagen 2009a: 14, 2009b 27–31, 2009c: 51, 2014; cf. Hollander and Einwohner 2004).

Taking the above into consideration, we understand resistance as a response to power from below, a subaltern practice that could challenge, negotiate, and undermine power, or such a practice performed on behalf of and/or in solidarity with a subaltern (proxy resistance). To conclude, resistance studies is then about studying various responses to power from below—it is about studying resistance strategies and practices.

The Strategy of Legal Rupture

Vergès is a well-known international criminal lawyer in the francophone world, due to a mixture of celebrity, following his prominent role in the defense of the Algerian Liberation Organization (FLN) during the 1950s and 1960s,2 and notoriety, due to his defense of the “indefensible,” including Klaus Barbie (the infamous “Butcher of Lyon”), Ilich Ramírez Sánchez (better known as “Carlos the Jackal”), and, most recently, Khieu Samphan, former head of state of Democratic Kampuchea. In addition, he is well-known for his work on jurisprudence, in particular as the chief theorist of the “strategy of rupture”; a legal defense strategy inspired by Marxism and by which, put simply, the defense lawyer reverses the legal process by turning it into an attack on the prosecutor and the legal system. Vergès’s most important work on the “strategy of rupture” is De la Stratégie Judiciarie, published in 1968, and in 1981, a second edition, with a preface by, among others, Michel Foucault (Widell 2012: 7).

In essence, the “strategy of rupture” is a bridge between Vergès’s revolutionary activities and his membership in the legal profession. The strategy is a balancing act between the politics of being a member of the judicial institution and the political aspiration of overturning the very same institution; for Vergès, “the courtroom is just another battleground” (Widell 2012: 31, 99).

The focus of his jurisprudential thinking is the relationship between the defendant and the defender, on the one hand, and the legal system, the courts, the judges, and the prosecutors, on the other. It is important, Vergès argues, for the defense never to forget what the legal system and the courts are enlisted for—namely, to serve the goals of those in power; the legal system is inherently “political” because it serves the interest of the state, not only through prosecutions and law but also through prosecutors and judges. Even though the “established order” has the upper hand, its power, at least in theory, can be challenged, negotiated and undermined, by making the law serve the interests of the defendants; the chief idea is to reverse the process, turning the prosecutor into the one being prosecuted (Widell 2012: 36–37, 100).

At the core of Vergès’s thinking we find the conceptual couplet of “connivance” and “rupture.” The chief difference between the two concepts or strategies is their approach to the established order. Connivance shares the interests of the established order, the political power, and the legal system that it allegedly 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 his or her defender; that the defendant and the defender say “yes” to the court per se and acknowledges its claim to be legitimate. This is what happens most of the times, consciously or unconsciously and most often due to ignorance. The defendant and/or the defender can, however, also choose to say “no!” and thereby resist participating in a dialogue with the prosecutor(s) and the judges (Widell 2012: 11, 100–101).

In contrast to the strategy of connivance, primarily seeking to put various facts into question, putting forward extenuating circumstances, and searching for as mild a judgment as possible, the strategy of rupture starts from the perspective of “differend”. This concept is closely associated with French philosopher Jean-François Lyotard who defines a case of differend 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: 9, cf. p. xi). The strategy of rupture thus departs from the assumption that at least two incompatible frameworks or contexts exist. However, according to Lyotard (1998: xi): “One side’s legitimacy does not imply the other’s lack of legitimacy.” In everyday life, several interpretations can coexist, more-or-less without problems. This is, however, not possible in a trial; it is necessary to choose and to decide on one interpretation. The chosen interpretation constitutes the very framework or context of the trial. To accept this, the terms under which the trial is performed—who should be the defendant and for what deeds, and so forth—“is already to accept one interpretation of the context among those between which the political struggle has been waged” and, by extension, acknowledging legitimacy (Koskenniemi 2011: 183).

One possibility to resist the chosen interpretation is of course to argue in favor of an alternative—for example, one being founded on what is considered to be an alternative moral (religious or profane). Such an approach could be labeled moral rupture. Another possibility, the one put forward by Vergès, is not to advocate an alternative framework, but rather to argue in favor of a consistent application of the existing framework—and, if necessary, to be “super-legalistic.” The underlying idea here is that a legitimate legal order needs to fulfill three requirements: (1) legal equality, (2) legal unity, and (3) legal certainty. If it fails in one, some, or all of these regards, the legitimacy of the legal order will decline or even diminish (Koskenniemi 2011: 191; Widell 2012: 102–104). From this follows that the first and most important step in the strategy of what we, in what follows, prefer to call legal rupture (in contrast to moral rupture) is to identify and display violations of existing principles, showing that they are applied selectively or inappropriately, but also, by extension, to show that the prosecutor(s) and judges are biased and that the legal order therefore can neither be just nor legitimate. The strategy of legal rupture departs from the idea that “if justice is selective, it is not justice at all” (Widell 2012: 102).

When the legal system as such is undermined by the identification and exploitation of contradictions, the defense can reverse the legal process and turn the defense of the defendant into an attack against the legal system and the interests that it serves. In parallel and/or by extension of what is taking place in the courtroom Vergès also proposes a strategy of “mediatisation.” The objective of this important second step of his strategy is to mobilize necessary popular support for the court case and to create political pressure, thus escalating the political dimension of the case (Tenove 2008).

In his 1968 book, Vergès elaborates on how the strategy of legal rupture works in practice. The most extensive discussion is devoted to the FLN, and its strategies against the French State. Vergès defended several FLN activists accused of terrorism. During the trials he identified three core contradictions: First, he argued that the application of a state exception in Algeria contradicted the official position of the French government, which argued that it was engaged in a simple police operation when it was in fact involved in clamping down on Algerian national resistance. Second, Vergès exploited the widespread use of torture by the French—exploiting the fact that torture was accepted in the colonies but not in the core of France. Third, he showed that the large number of those interned in itself made it difficult to maintain the view that they were simply a band of lawbreakers. As the number of prisoners increased and various collective protest actions were organized in the prisons, various forms of resistance and protests from the prisoners increasingly came to be considered as legitimate political interventions rather than violations of the law, which, by extension, was considered as increasingly illegitimate (Christodoulidis 2009: 4–5). In this way, Vergès succeeded in constructing an image of the French state, the legal system, and the FLN trials that was different from the official one, primarily by exploiting inconsistencies, hypocrisy, and claims for legitimacy.

The most famous FLN activist, Djamila Bouhired, was eventually sentenced to death. With this, Vergès launched step two in his defense strategy, mediatization, and waged a public campaign for her, emphasizing the double standard of the French legal system and the colonial nature of the French state. Partly due to this campaign, the French government found itself under overwhelming pressure from international public opinion and eventually the French president René Coty granted a partial pardon, and commuted the death sentence to forced labor (Widell 2012: 118). Bouhired was eventually released from prison and turned into a national hero when Algeria became independent in July 1962.

The most (in)famous, case in which Vergès deployed the strategy of legal rupture was in defense of the former SS officer Klaus Barbie in Lyon, before the Rhône Cour d’assies, in 1987. Barbie was accused of having committed crimes against humanity, including torture and murder. Vergès used the trial to bring attention instead to various war crimes that France had committed after 1945, in particular during the Algerian war (1954 to 1962) but also in other countries around the world. He also successfully questioned the heroism and unity of the French resistance, highlighting treason and internal power struggles (Kaplan 1992; Koskenniemi 2011: 191; Tenove 2008). The declared tactics of Vergès were:

to use the trial for the purpose of attacking the hypocrisy of the French State in accusing Barbie of acts that had been routine parts of its own colonial warfare … the real battle lay not in attaining the release of his client but in achieving control of the historical and didactic aspects of the trial—far more important questions than the fate of an old Nazi.

(Koskenniemi 2011: 193; emphasis added)
Barbie was convicted, but with great success Vergès ruptured the desired and planned metanarrative of the trial. He did so not by denying facts, but by putting them in an alternative and more coherent historical frame than the one suggested by the French state. The trial then became a trial of historical memory and truth. When the debate is moved to this level from that of individual culpability, it is much more difficult to contain it through legal means and, if this is done, the legal judgment is vulnerable, it is no more than Siegerjustiz (Kaplan 1992: 83; Koskenniemi 2011: 194).

To conclude, the strategy of legal rupture is resistance; it is critical international criminal law put in practice. The ultimate goal is to generate contradictions that make impossible a response in and by the system. Taking the above as our theoretical frame of reference the article now turns to explore what legal rupture, as resistance, means in the context of the ECCC. While we embrace and acknowledge the attempts of Vergès to broaden our understandings of, and display further nuances to, complicated legal matters, it should also be noted that the strategy of legal rupture, in the case of the ECCC, has been painful for many victims and civil parties. In some cases, Vergès has been accused of undermining a desired attempt to reach justice and come to an end in regard to the genocide. This makes the strategy of legal rupture a complicated one with a number of ethical ramifications.

A Short Historical and Political Background to the ECCC

On 17 April 1975, the Khmer Rouge took over Phnom Penh. The hard-core revolutionary movement reached the Cambodian capital after a five-year-long civil war. The principal goal of the new and Maoist-inspired rulers was to establish a socialist, fully independent as well as socially and ethnically homogeneous and equal society on Cambodian soil. In order to do so, the uncompromising standpoint of the Angkar (i.e., the Party or Organization of the Khmer Rouge) was that traditional Cambodian political, economic, social, and cultural institutions had to be destroyed. Everything, literally speaking, should be made from the beginning, from year zero. As a first step, cities are emptied and people are forcefully evicted to rural collectives in the countryside (see further Chandler 1999: 192–272, 2008: 255–276; Kiernan 2008; Ponchaud 1978).

After almost four years of Khmer Rouge rule, which resulted in the death of some 1.7 million people, Cambodia’s historically complicated relations with Vietnam eventually led to the overthrow of the Khmer Rouge regime. On 7 January 1979, Phnom Penh fell and, as a consequence, Pol Pot and one faction of the Khmer Rouge fled and reorganized themselves in the northwestern part of Cambodia. The new regime in Phnom Penh, led by Heng Samrin and made up of another faction of the Khmer Rouge movement, was heavily dependent on Vietnam, which in fact occupied the country between 1979 and 1989 (Chandler 2008: 277–284; Ciorciari 2006: 11–12; Kiernan 2008: 456–460).

It is difficult to understand Democratic Kampuchea (1975 to 1979) and its successors—the People’s Republic of Kampuchea (1979 to 1989), the State of Cambodia (1989 to 1993), and the Kingdom of Cambodia (1993 to present)—as well as what is currently playing out in the ECCC, without paying close attention to, on the one hand, factional struggles within the Khmer Rouge and, on the other hand, Cold War logic. The faction that dominated the Khmer Rouge during the Democratic Kampuchea years was supported by China, while the faction that took power in January 1979, associated with individuals such as Chea Sim, Heng Samrin, and Hun Sen, was supported by Vietnam and the USSR. Following the complicated logic 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 backing continued until as late as 1992. At this time, the Cold War had ended and the UNTAC was arriving in Cambodia to begin the implementation of the Paris Peace Agreement (Baaz 2015b: 167–171; Chandler 2008: 277–300; Gottesman 2003).

In 1985, Hun Sen replaced Heng Samrin and then became the most influential political leader in the ruling Kampuchean People’s Revolutionary Party (KPRP), the successor to the Vietnam-supported faction of the Communist Party of Kampuchea (read the Khmer Rouge) and later in the Cambodian People’s Party (CPP), the successor to the KPRP and the dominating political party in current Cambodian politics. Today Hun Sen serves as prime minister of Cambodia and Heng Samrin as honorary chairman of the CPP (Chandler 2008: 285). Chea Sim served as president of the Senate until his death in June 2015. It is against this historical and political background that we should understand the negotiations for the design of and current proceedings in the ECCC (see further Baaz 2015b, 2015c).

A Brief Note on the Establishment and Design of the ECCC

When the negotiations to establish the ECCC started in 1997, the CPP and the UN had quite different views about how to organize the tribunal. It was, however, clear from the very beginning that the UNSC, due to a Chinese veto threat, could not force an international court on Cambodia. The solution to the resulting deadlock was the establishment of a “hybrid” tribunal. The Extraordinary Chambers in the Courts of Cambodia are, as the name indicates, special chambers within the Cambodian court system. Within the court Cambodians have a majority but with “supermajority” provision (Ciorciari 2009: 67–72). In practice, this means that at least one international judge is needed for any judicial decision.

The ECCC is thus a unique creation;3 it is, put simply, a “compromise” between the common law tradition, granting the prosecutors a strong position, and the civil law tradition, using investigating judges. In addition, the tribunal applies national as well as international law and the responsibilities of each nonjudging 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. In practice this means that the co-prosecutors and the co-investigating judges must act in agreement (see Arts. 5.4, 6.4, and 7, of the Agreement between the RGC and the UN 2003). On an overall level, the ECCC is best described as a compromise—as an extraordinary experiment in international criminal law (see further Baaz 2015c).

Case 002/01 according to Critical International Criminal Law, Resistance, and the Strategy of Legal Rupture

Khieu Samphan, the defendant, and Vergès, the defender, have known one another for more than fifty years. The two men originally met at the Sorbonne University during the 1950s when Vergès, at the time a student activist working with anticolonialism, attracted the interest of a group of Cambodian students, including not only Khieu Samphan but also Saloth Sar (later known as Pol Pot). Khieu Samphan returned to Cambodia after having finalized his doctoral dissertation, “Cambodia’s Economy and Industrial Revolution.” Over the years, the two stayed in contact and in 2004 it seemed that Vergès might represent Khieu Samphan in a future trial. Even though the rumors intensified in September 2006, when Vergès visited Cambodia and the ECCC for five days, it was not until December 2007 that he was officially sworn in as the defender of his old friend. Vergès maintained this engagement until his death on 15 August 2013—just a few months before the hearing of the closing statements in Case 002/01 was about to begin (Gillison 2007; McDermid and Sokheng 2006; McFadden 2013).

In an interview done by Chris Tenove on 6 August 2008, Vergès indicated that he finds it problematic that the scope of inquiry of the ECCC is so limited with regard to both the limited number of individuals on trial, and the fact that only Cambodians are among the accused. In response, Vergès expressed an ambition to try to force the tribunal to take into consideration all the crimes committed in Democratic Kampuchea. In the same interview, he also indicated that he was going to use his strategy of legal rupture—not by denying that the Khmer Rouge committed crimes, but rather by emphasizing that Khieu Samphan was not personally responsible for them. Khieu Samphan was head of state because he enjoyed popular support, far beyond the Khmer Rouge supporters (Tenove 2008). Vergès’s proposed strategy is similar to the one used in the 1987 Barbie trial—the core objective is once again to achieve control over the historical and didactic aspects of the trial.

Arthur Vercken, one of Khieu Samphan’s international lawyers, together with Vergès, elaborates on the importance of history as well as expanding the scope of the inquiry in the beginning of his closing statement in Case 002/01. The passage is rich and is therefore quoted at length:

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: 1–2, 58–60; emphasis added)
As we can see, the defense presented by Vercken (and his associates) closely follows the strategy of legal rupture as formulated by Vergès.4 Even though Vergès was physically absent from the courtroom in October 2013, his spirit was very much present. The defense strategy that was chosen aims to show the political nature of the ECCC, that it primarily serves the interest of some of the key actors in the Cambodian tragedy—the UN as an organization, but also the states of 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 overall objective is thus to establish a case of differend suggesting that two different frameworks or historical accounts exist and that the one promoted by the national authorities must be questioned, deconstructed, and added to. With the same motif, Victor Koppe, the international defense lawyer of Nuon Chea, posed the following question to the ECCC, clearly indicating differend, in his closing statement: “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: 14–17).

Vergès himself also practiced the strategy of legal rupture in a more situated fashion in the ECCC before he died. Some four months before the interview mentioned above, in April 2008, Vergès created headlines in the local as well as international media when he stormed out of a closed-door pretrial hearing, forcing the chair of the meeting to adjourn the session and prompting the judges to ask for a new defender. “I have been a lawyer for 50 years; it is the first time I have seen judges ask an accused to change his lawyer. … This is a scandal,” Vergès said to the reporters waiting outside (Associated Press 2008).

The origin of the incident can be traced back to Art. 45 in the ECCC Law, which states that the “official working language [of the Court] … shall be Khmer, English and French.” But, as pointed out by Vergès, thousands of pages of documents were not translated into French. He said: “French is an official language of the tribunal. … There is not one page of the case file against Mr. Khieu Samphan translated into French. … I should be capable of knowing what my client is blamed for --- The defense of Mr. Khieu Samphan is not possible.” He also added that the detention of Khieu Samphan was illegal and that he would not cooperate with the Tribunal until the 16,000 pages of evidence against his client were translated into French (Associated Press 2008; Radio Netherlands Worldwide, 5 May 2008).

The fact that such a great number of essential documents had not been translated casts a serious shadow over the ECCC, not least regarding the important criteria of legal equality and certainty. The objection is also interesting in the sense that is “legalistic,” it questions the performance of the tribunal based on one of the founding documents, the ECCC Law, as well as its own internal rules. Vergès uses the misconduct as a pretext not to cooperate with the ECCC. This strategy echoes what took place in Algiers some six decades before.

Almost exactly a year after Vergès lodged this complaint, on 3 April 2009, he continued to practice his strategy of legal rupture before the Pre-Trial Chamber during an open hearing in Case 002. During the hearing, when Vergès was given the floor, he opened by saying: “We have asked of the Co-Investigating Judges to give us information regarding the proceedings that are underway in the field of corruption, and on this subject perhaps I could provide some explanations” (C26/5, Transcript of Khieu Samphan Appeal Hearing on 3 April 2009: 45–46; emphasis added). The presiding judge, Rowan Downing, quickly interrupted Vergès and said:

Counsel, you appear to be raising new issues, and not by way of response to what has been provided or asserted by the … I’m sorry, let me finish. You are given an opportunity to respond to the remarks of the prosecutors, not to open new matters at this point.

(C26/5, Transcript of Khieu Samphan Appeal Hearing on 3 April 2009: 46)
Vergès replied:

So, with your leave, I shall not raise a new issue, I shall follow your guidance, but I would like to explain why I am not insisting, in line with what happened with the civil parties this morning. … First of all, I shall remain silent because I need not be more careful about your honour than you are yourselves. If you believe that we should not talk about corruption here I shall not impose such a debate upon you. I shall keep silent because I understand your caution in this respect, and I believe that the presumption of innocence that you sometimes question in respect of our accused might be beneficial to you. And I shall also remain silent because the head of state, of this state, has publicly stated that he wants this Chamber to be brought to a conclusion. In this sense, you are mere squatters. A member of the government that accommodates you here says that you’re obsessed only by money, thus corroborating the accusations, be they grounded or not, regarding corruption that might possibly be plaguing this tribunal. And once again, still being brief, I shall stay silent because it’s not good to be shooting on ambulances and victims and the wounded, it is not good to be shooting on houses and dying people or institutions.

(C26/5, Transcript of Khieu Samphan Appeal Hearing on 3 April 2009: 46–47; emphasis added)
Vergès’ statement might be read as an ironic utterance that does not correspond to just one fixed meaning, but slides between conflicting connotations. Employing this strategy of irony, Vergès implicitly deconstructs and denaturalizes what is comprehended as a misuse of power. The comment made by Vergès is a good illustration of the strategy of legal rupture, in which he seeks to delegitimize the ECCC by highlighting ongoing accusations of mismanagement and corruption in and around the ECCC.
Later during the same hearing, Vincent de Wilde d’Estmael, on behalf of the co-prosecutors, argued that the defense team of Khieu Samphan had, from April 2008 onward, “placed itself in a position where it could not offer an effective defence for its client by choosing not to cooperate with the ECCC.” He continued by adding the following:

you heard the international co-lawyers, in a few sentences, explicitly and fundamentally challenge the existence of the ECCC, its legitimacy, the length of its duration and made particular reference in so doing to the Pre-Trial Chamber. This is a strategy of disruption on the part of the defence, which for one year has only submitted one argument, that is the argument on translation, and which has refused to cooperate with the ECCC, in particular with the administrative organs or services of the Court. This strategy on which this international lawyer has based all his career consists in wilfully disrupting and delaying proceedings so that no trial worthy of the name can be concluded within a reasonable time frame. Can this Chamber afford to continue to tolerate such a strategy before the ECCC? Can it be tolerated further when impunity is coming to an end, when charged persons are aging, when victims have been waiting so long for justice to be done, and efficiently, in compliance with international standards? Does this strategy—does it have any relevance before a Court such as ours, when decolonisation and the Cold War are now well behind us?

(C26/5, Transcript of Khieu Samphan Appeal Hearing on 3 April 2009: 64; emphasis added)
As clearly indicated in the above quote, the ECCC has great difficulties in accepting the strategy of legal rupture and even questions whether it is acceptable as a legal strategy. Vergès’s answer to this was as follows:

The deputy prosecutor has most elegantly challenged me, and I shall respond with a Latin motto: de minimis non curat praetor. I hope he understands Latin.

(C26/5, Transcript of Khieu Samphan Appeal Hearing on 03 April 2009: 73; emphasis added)5
Vergès’s behavior in general and his application of the strategy of legal rupture eventually resulted in a public warning, issued by the Pre-Trial Chamber on 19 May 2009. The president of the Pre-Trial Chamber, Judge Prak Kimsan, wrote that the Pre-Trial Chamber:

WARNS … Vergès that was his conduct to remain offensive or otherwise abusive, or was he to obstruct proceedings or adopt a conduct that amounts to an abuse of process, the Chamber would impose sanctions pursuant to Internal Rule 38.

(C26/5/2, Public Warning to International Co-Lawyer, 19 May 2009: 10)
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:

Ladies and gentleman in the public gallery, I would like you to properly understand the rules regarding a referral of cases before international criminal tribunals and these rules are such that 90 per cent of what you have heard the prosecutor plead over the past few days is off topic. Now, these rules are taught in first year programmes in law faculties, so it is basic; it is elementary. It is not possible to have a fair trial unless these rules are abided by. So, the question I ask is: In setting up the Prosecution team, did they commit errors? Did they unwittingly hire a gang of tourists who were about to end their holidays in Cambodia, backpackers in a hotel on riverside, and who wanted to extend their stay in Cambodia, and who want to make a few dollars by donning their purple robes and offering their services to the tribunal? 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 defence 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. You are convinced that the entire world is focusing on you, is looking at you. … You are convinced that your mission is more important than the rules of law and procedure. You are wrong. … [U]nder the cover of a commando mission, you are taking the risk of ridiculing a legal system that is already quite weak. You’re taking the risk of drowning the only true mission that entrusted you, the United Nations—that is to say, to participate in the establishment of a strong and equitable justice. You are taking the risk of violating the public interest that you’re supposed to defend and represent. … [Y]ou are surrounded by rules that are imposed upon you and rules that you cannot escape from. … These rules are stronger than the Judges; these rules are more—greater than you. You’re not expected to modify them as in some kind of government formed by judges; these rules rule you and these rules are your allies.

(E1/234.1, Public Transcripts of Trial Proceedings, Trial Day 221, 25 October 2013: 1–2, 58–60; emphasis added)
What is implied here is that the prosecutors in fact speak from a subject position other than that given and expected. Thus, 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, president of the Trial Chamber interrupted Vercken several times, telling him to use his words professionally and abide by the Code of Conduct for lawyers. Eventually the president simply 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: 37–38; emphasis added)
Vercken replied to this interference in following way:

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: 37–38)
The answer clearly 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 principals 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. In addition, he is not only addressing the tribunal as such but also the audience in the public gallery—he is thus applying mediatization, the second component in the legal strategy of rupture.

Concluding Remarks

In August 2014, the Trial Chamber of the ECCC, as expected, sentenced the two defendants in Case 002/01 to life imprisonment (ECCC 2015b). Even though the judgment has been appealed, the likelihood that the Supreme Court Chamber will change the judgment of the Trial Chamber is very low, if not nonexistent. Hence, it is quite safe to conclude that the two defendants will end their lives in prison.

It is, however, often argued that the significance of war crimes trials lies beyond the judgments handed out; that it is “less about judging a person than about establishing the truth of events” (Koskenniemi 2011: 172). In this regard the trials in the ECCC have, in most respects, been a failure. There seem to be few new truths of events established in regard to the Khmer Rouge period.

Vergès and others have several times argued that the ECCC trials are to be considered a legal theater or farce, seeking to establish, what he understands as, Siegerjustiz. In line with this, he uses the strategy of legal rupture 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. Even though this strategy in some senses might be defended, it is also important to acknowledge how legal rupture as resistance, in the case of the ECCC, has been painful for the victims and civil parties who believe in the legal process. Hence, the strategy of legal rupture is not uncomplicated from an ethical perspective.

The prime significance of Case 002/01 lies in its contribution to add nuance to the ongoing construction of memory and truth in Cambodia regarding what happened during the Khmer Rouge years and why, as well as who should be held responsible. 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. The importance of a trial could be measured by the trail it leaves behind. By resisting the metanarrative suggested jointly by the international society, the CPP, and the ECCC, Vergès and his associates 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 goals of the ECCC—namely, to establish a gap between the CPP and its predecessor, the Khmer Rouge. For the observant follower of the ECCC proceedings, it is obvious that the CPP of today is made up of one faction of the Khmer Rouge movement (see further Baaz 2015b, 2015c).

In sum, the resistance performed by Vergès and the two defense teams in the ECCC highlights some of the general problems of liberal transitional justice and international criminal law, including, as has been put forward by Martti Koskenniemi (2011: 172), the “renewed urge today to think about international politics in terms of domestic categories,” the universalization of the rule of law and the liberal vision that there should be nothing outside of law, and that criminal law can be used to deal with events of enormous moral, historical, and political significance.

What took place in Cambodia between 1975 and 1979 is multifold and holds several intertwined layers and is difficult to understand in simple (binary) terms. The truth of events in complex cases, such as Cambodia, is neither black nor white but is better understood as various shades of gray. The strategy of legal rupture has been promoted in the ECCC as a means to enhance additional nuances to the official picture. On an overall level, international criminal law and the strategy of legal rupture have been used to resist the dominating post–Cold War liberal transitional justice paradigm. This strategy has had diverse impacts. As we have shown above, it has provided various new and important insights, but has also provoked a number of reactions, such as grief, pain, and anger.

ACKNOWLEDGMENTS

The authors gratefully acknowledge the financial support of the Swedish Research Council, which has allowed us to undertake research in a program titled “Globalization of Resistance: Influences on Democracy Advocators in Civil Society in the South,” from 2011 to 2015 (project no. 2010-2298). This article is an integral part of this wider research program.

NOTES
1

“The boundaries between conflict prevention, peacemaking, peacekeeping, peacebuilding, and peace enforcement have become increasingly blurred. Peace operations are rarely limited to one type of activity” (http://www.un.org/en/peacekeeping/operations/peace.shtml). The concepts not only overlap in practice but also are used somewhat inconsistently in the literature on transitional justice and international criminal law. Being aware of this, we nevertheless will use the term peacebuilding consistently throughout text. The underlying rationale is to avoid conceptual confusion.

2

Most often abbreviated to FLN after its French name, Front de la Liberation Nationale.

3

In 2001, the National Assembly of Cambodia approved the “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”; the law was then promulgated through a Royal Decree. In 2003, the RGC and the UN reached an agreement that provides for international assistance and participation in the proceedings before the ECCC. Following this agreement, amendments to the law establishing the ECCC were adopted and promulgated in 2004. The amended law is commonly referred to as the “ECCC Law.” In June 2007, the ECCC adopted its “Internal Rules,” which form a self-contained regime of procedural law related to the unique circumstances of the ECCC, made and agreed upon by the plenary of the Court. The Internal Rules have been revised nine times since 2007; the last time was in mid-January 2015.

4

Besides Arthur Vercken (France), Khieu Samphan’s current defense team is made up of Anta Guisse (France) and Kong Sam Onn (Cambodia) (see further ECCC 2015c).

5

The praetor (the one who takes the lead) does not concern himself with trifle—that is, the principle that the law is not concerned with insignificant or minor matters.

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ECCC MATERIAL

UN MATERIAL

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Contributor Notes

MIKAEL BAAZ is an associate professor in peace and conflict studies and a senior lecturer in international law at the School of Business, Economics and Law, the University of Gothenburg. His core research interest is various aspects of international society, in particular international law and international criminal law. His articles appear in inter alia: Journal of International Relations and Development, International Studies Review, Asian Politics and Polity, Journal of Political Power, Global Public Health, Peace Review, Journal on the Use of Force and International Law, Asian Journal of International Law, Scandinavian Studies in Law, Leiden Journal of International Law, Journal of Resistance Studies, International Journal on Constitutional Law, and Journal of International Criminal Justice. He has also contributed to several edited books, including Ethical Reasoning in International Affairs: Arguments from the Middle Ground, edited by Cornelia Navari (2013), and Progressivism and US Foreign Policy: American Thinkers on Peace and War during the Interwar Period, edited by Molly Cochran and Cornelia Navari (2016, forthcoming), both published by Palgrave Macmillan.

MONA LILJA is a professor in sociology at Karlstad University. Her research interests include resistance studies and gender studies. She has published widely internationally and her articles appear in, for example, Journal of Political Power, Asian Politics and Policy, NORA: Nordic Journal of Feminist and Gender Research, Feminist Review, Asian Journal of Political Science, Global Public Health and Signs. Her published monographs include Resisting Gendered Norms: Civil Society, the Juridical and Political Space in Cambodia and Power (Ashgate, 2013) and Resistance and Women Politicians in Cambodia (Nias Press, 2008).

Conflict and Society

Advances in Research

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  • BaazMikael. 2015a. “Dissident Voices in International Criminal Law.” Leiden Journal of International Law 28 no. 3: 673689.

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    • Search Google Scholar
    • Export Citation
  • BaazMikael. 2015c. “Bringing the Khmer Rouge to Trial: An Extraordinary Experiment in International Criminal Law.” Comparative LawScandinavian Studies in Law 61: 291338.

    • Search Google Scholar
    • Export Citation
  • BaazMikael and Mona Lilja. 2014. “Understanding Hybrid Democracy in Cambodia: The Nexus Between Liberal Democracy, the State, Civil Society, and a ‘Politics of Presence.’Asian Politics and Policy 6 no. 1: 524.

    • Search Google Scholar
    • Export Citation
  • BerdalMats and Michael Leifer. 1996. “Cambodia.” Pp. 2558 in The New Interventionism 1991–1994: United Nations Experience in Cambodia Former Yugoslavia and Somalia ed. J. Mayall. Cambridge: Cambridge University Press.

    • Search Google Scholar
    • Export Citation
  • Buckley-ZistelSusanne and Magdalena Zolkos. 2012. “Introduction: Gender in Transitional Justice.” Pp. 136 in Gender in Transitional Justice ed. S. Buckley-Zistel and M. Zolkos. New York: Palgrave Macmillan.

    • Search Google Scholar
    • Export Citation
  • GillisonDouglas. 2007. “KR Tribunal Swears in French Lawyer Verges”. Cambodia Daily13 December.

  • ChandlerDavid. 1999. The Tragedy of Cambodian History: Politics War and Revolution since 1945. Chiang Mai: Silkworm Books.

  • ChandlerDavid. 2008. A History of Cambodia. Boulder, CO: Westview Press.

  • ChristodoulidisEmilios. 2009. “Strategies of Rupture.” Law and Critique 20 no. 1: 326.

  • CiorciariJohn D. 2006. “Introduction.” Pp. 1127 in The Khmer Rouge Tribunal ed. J. D. Ciorciari. Phnom Penh: DC-Cam.

  • CiorciariJohn D. 2009. “History and Politics Behind the Khmer Rouge Trials.” Pp. 3384 in On Trial: The Khmer Rouge Accountability Process ed. J. D. Ciorciari and A. Hendel. Phnom Penh: Documentation Centre of Cambodia.

    • Search Google Scholar
    • Export Citation
  • Couzens HoyD. 2005. Critical Resistance: From Poststructuralism to Post-Critique. Cambridge, MA: MIT Press.

  • CoxRobert W. 1986: “Social Forces, States and World Orders: Beyond International Relations Theory.” Pp. 204254 in Neorealism and Its Critics ed. R. O. Keohane. New York: Columbia University Press.

    • Search Google Scholar
    • Export Citation
  • Critical Approaches to International Criminal Law. 2015. Research Network. http://www.caicl.net (accessed 21 April 2015).

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