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From Expressivism to Communication in Transitional Justice: a Study of the Trial Procedure of the Extraordinary Chambers in the Courts of Cambodia

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From Expressivism to Communication in Transitional Justice: a Study of the Trial Procedure of the Extraordinary Chambers in the Courts of Cambodia From Expressivism to Communication in Transitional Justice: A Study of the Trial Procedure of the Extraordinary Chambers in the Courts of Cambodia CHERYL SUSAN WHITE A thesis submitted for the degree of Doctor of Philosophy of The Australian National University July 2014 DECLARATION I hereby declare that this thesis is exclusively the result of my own work. Cheryl White i DEDICATION To the unrepresented of S-21 ii ACKNOWLEDGEMENTS When I was writing the thesis I often had classical music playing on my computer or phone. There were moments when the purity, intensity or beauty of the sound in the background seemed to carry me through the intellectual waters I was navigating. There was also a symphony of support in friends, family, colleagues and strangers who made my journey lighter and ultimately achievable. I would like to acknowledge them. My thesis research began at the University of Newcastle, where my teaching colleagues kindly shared their experience and encouraged me to take my ideas further. Neil Foster, Jeff McGee, Amy Maguire, and Brendan Murphy were particularly supportive as fellow travellers. When the time came, Professor Ted Wright gave me good advice as I prepared my application for transfer to the ANU. At the ANU, Hilary Charlesworth as my supervisor helped me to reshape my awkwardly drafted chapters and refine the themes of my work. With the benefit of her wonderful editorial advice and precision the thesis gradually emerged. At the same time, I was aided by the generous collegiality of the RegNet scholarly community. John and Valerie Braithwaite contributed to the thesis both through their publications and the personal affirmation they gave at pivotal moments. The department’s interdisciplinary seminar program was an instructive research site and visiting scholars offered valuable insights. Professors Susanne Karstedt and Stephan Parmentier were particularly helpful in the discussions we had. The post-doctoral scholars of our Centre for International Governance and Justice, Ben Authers, Emma Larking and Ibi Losoncz looked out for me when the going got tough and generously passed on their knowledge. I appreciated the great efforts of Kate Henne and Veronica Taylor in providing the resources needed for PhD work as well as the student’s general well-being. Paulina Piira, Hilary Greenhill, Nicci Coad and Caroline Mengalsdorf also gave me significant administrative and moral support. iii Towards the end, the help of Candida Spence from the Menzies Library in formatting the thesis document was invaluable. I am also indebted to Maxine McArthur for her patient copy editing and writing tips. When I left for Canberra, my family wondered what I was going off to do ‘this time’ and my being away did not make things easy for them, but they gave me unstinting support. Thank you dear Dad, Kerrie, Trish and Jack for your love. I knew few people in Canberra when I arrived, but made friends at the ANU and off campus who helped sustain me throughout the thesis term. I was especially grateful for Ellen Bangash who was very kind to me during a bout of illness in 2012. The invitations to concerts in Canberra from time to time from Lindley Huish and Merrilyn Carey were also a great help. Kylie McKenna and Martina Wardell shared their wisdom at various stages of the journey and were fun to be with as were my fellow PhD students: Robyn Holder, Monira Ahsan, Natasha Tusikov, Sekti Widihartanto, Nara Ganbat, Cynthia Banham, Shane Chalmers, Susanne Akila and Christoph Sperfeldt. My thanks to you all for your company, friendship and support. iv ABSTRACT From Expressivism to Communication in Transitional Justice: A Study of the Trial Procedure of the Extraordinary Chambers in the Courts of Cambodia From the mid-1990s transitional justice was typically theorised through the lens of the expressivism of the international criminal trial. In other words, the international trial became the primary vehicle for signalling an end to impunity for international crimes through the enforcement of international norms, and modelling of legitimate legal process for societies transitioning to democratic governance. Developments in the form and procedure of courts making up the international criminal justice system suggest scope for their evaluation on an alternative, or at least, complementary theoretical basis. Drawing on work by transitional justice theorists Mark Osiel and Frédéric Mégret, the evolution of victim participation rights in criminal justice, research in peace studies, and the proceedings of the first trial at the Extraordinary Chambers in the Courts of Cambodia (ECCC), this thesis develops a communicative theory of the transitional trial. The essence of this theory is that properly controlled dialogical trial proceedings activate the communicative capacity of trials, connecting the work of the Court with the communities affected by the crimes they address. The thesis studies the dissonance between the expressive and the communicative value of transitional trials. Social engagement with the past is implicit in formulations of the notion of transitional justice, but dialogue within trials is limited to evidentiary matters, unless flexibility in trial procedure permits broader discussion within the bounds of criminal law principles. The communicative trial creates space for dialogue and re-evaluates trial procedure models in light of the social purposes of transitional justice. A communicative theory admits engagement with the past under conditions of truth-telling within criminal process not strictly limited to factual proofs, but extending to the causes and effects of crimes. Communicative trials admit narrative testimony controlled by inquisitorial judges for both retributive and reconciliatory purposes. Proceedings are representative of v both national and international interests, and provide substantive inclusion of victims’ voices under due process principles. The Court is connected to civil society networks which act as intermediaries between the institution and the affected community. My study of the ECCC trial proceedings suggests a legacy of the transitional court beyond the expressivism of international criminal justice and the functional objectives of United Nations state-building. I conclude that the ECCC’s politicised nature did not limit the scope for dialogue and space for reflection made possible by the Court’s largely inquisitorial procedure. Exchanges during proceedings and the inclusion of the voices of the accused and crime survivors expanded the trial dialogue. The representative and dialogic nature of the proceedings enhanced the ECCC’s communicative capacity. The communicative value of the trial in a society where public discourse on the crimes of the former regime has been suppressed is especially significant. vi ABBREVIATIONS CGDK Coalition Government of Democratic Kampuchea CPK Communist Party of Kampuchea CPP Cambodian People’s Party ECCC Extraordinary Chambers in the Courts of Cambodia FUNCINPEC Front Uni National pour un Cambodge Indépendent, Neutre, Pacific et Coopératif ICC International Criminal Court ICTR International Criminal for Rwanda ICTY International Criminal for the Former Yugoslavia ILM International Legal Materials KPLNF Khmer People’s National Liberation Front KPRP Khmer People’s Revolutionary Party PDK Party of Democratic Kampuchea PRK People’s Republic of Kampuchea PRT The People’s Revolutionary Tribunal SCC Supreme Court Chamber SCSL Special Court for Sierra Leone SOC State of Cambodia STL Special Tribunal for Lebanon UNGA United Nations General Assembly UNSC United Nations Security Council UNTS United Nations Treaty Series UNTAC United Nations Transitional Administration in Cambodia UNMIK United Nations Transitional Interim Administration in Kosovo UNTAET United Nations Transitional Administration in East Timor VCLT Vienna Convention on the Law of Treaties vii TABLE OF CONTENTS DECLARATION .................................................................................................. i DEDICATION ................................................................................................... ii ACKNOWLEDGEMENTS.................................................................................. iii ABSTRACT ....................................................................................................... v ABBREVIATIONS ........................................................................................... vii TABLE OF CONTENTS ................................................................................... viii TABLE OF CASES ............................................................................................xvi TABLE OF LEGISLATION ................................................................................. xx TABLE OF TREATIES ...................................................................................... xxii CHAPTER ONE THE NATURE OF THE TRANSITIONAL TRIAL .................................................... 1 I INTRODUCTION ........................................................................................ 1 II TRIALS IN TRANSITIONAL JUSTICE THEORY ............................................... 8 III EXPRESSIVISM AND THE TRANSITIONAL TRIAL ....................................... 14 A Expressivism and Social Meaning .............................................................................14 Expressivism and Legal Action ..............................................................................15 Expressivism and Criminal Law ............................................................................16
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