The Field of International Criminal Law

As a field,Footnote ⁷ international criminal law (ICL) is contested: It is in a constant state of becoming and of renegotiation, which reflects internal contestations over authority and interests, including contestations among the national, transnational, and supranational, and between the global and local non-governmental. It becomes in the negotiations between different systems of law (e.g., common and civil) and bodies of law (human rights law, criminal law, international law). And in the larger pursuit to render law “justice,” ICL becomes in the contestations over whether this quest is also one for transition, whether transitional justice endeavors are too dominated by ICL, or whether there is too much belief in extrajudicial impacts of ICL.Footnote ⁸

The ECCC provides a fertile ground for examining the purposes and limits of the field of ICL. Set up through an agreement between the Cambodian government and the United Nations in 2003,Footnote ⁹ it has been presented as a mechanism for transition for both individual victims by alleviating suffering and for the state of Cambodia by improving the rule of law. Although its jurisdiction and prosecutorial strategyFootnote ¹⁰ are limited to bringing to trial Khmer Rouge officials who were senior leaders and those most responsible for crimes committed between April 17, 1975 and January 6, 1979, the hopes and aims of what it could accomplish go beyond any legal findings against an accused. An ambitious victim participation scheme, extensive outreach programs, and collaboration between “international” and “national” staff resonate with what is elsewhere done under the banner of transitional justice. For Sok An, then Deputy Prime Minister and Chairman of the Cambodian Task Force for the ECCC, the Court would “provide a new role model for court operations in Cambodia,”Footnote ¹¹ while international donors hoped it would “promot[e] respect for the rule of law in Cambodia.”Footnote ¹² This transitional justice enterprise can be summarized in the Court's motto: “Moving Forward through Justice.”Footnote ¹³

Ten years and three completed trials later, there is little to suggest that the ECCC has had any direct effect on the Cambodian judicial system or any other state institutions. Instead, the Cambodian Supreme Court recently dissolved the main opposition partyFootnote ¹⁴ and the government regulates non-governmental organizations in a way that is described as a “crackdown.”Footnote ¹⁵ In contrast to the transitional justice paradigm, according to which ICL contributes to a move towards liberal democracy, Cambodia seems to be going in the opposite direction—irrespective of the ECCC. Yet, this conflation in transitional justice discourse between court practices and liberal democracy does not mean the ECCC has been insignificant or meaningless. Rather, the manifold practices and activities organized or sparked by the ECCC have affected legal subjectivities in Cambodia and beyond. To understand how, we need to develop means to better understand the affective qualities of ICL and examine the forces and practices that take part in its making.

Outreach and Reparations as Visual Practices

Visual images produced in outreach and reparations provide entry points through which we can engage with the broader range of legal practices that constitute legal subjectivities. Apart from its legal findings, the ECCC has promoted a wealth of public engagements of a scale unprecedented amongst international criminal courts and tribunals.Footnote ¹⁶ Civil society organized outreach activities as soon as the Court came into existenceFootnote ¹⁷; over the years, these have included information posters that use graphics to inform the public about the jurisdiction of the Court, radio and television shows, community meetings, and study tours that have educated the public on the legal process and on the Khmer Rouge. Since 2012, there has also been a flurry of activities relating to reparations.Footnote ¹⁸ The ECCC Internal Rules provide for “moral and collective reparations,”Footnote ¹⁹ but without the authority to “order the implementation or the payment of reparation measures against Cambodian or other national authorities”Footnote ²⁰ and with allegedly indigent convicted persons, the bulk of the reparation system is instead based on the Civil Party Lead Co-Lawyers proposing fully developed and externally funded projects to the Court.Footnote ²¹ Amongst those reparations awarded across the two later trials are a dance performance, art exhibitions, education materials on the Khmer Rouge (including a graphic novel), and a history app.Footnote ²² These reparations are visual representations of law, visualizing crime and suffering, jurisdiction, and legal proceedings.

So what do we make of these artistic and visual representations? There is a tendency in some engagements with ICL (and transitional justice more broadly) to assume that art has a capacity to do something that law cannot, such as provide healing or closure. In this instrumentalist or romantic approach, the purpose and standard against which a piece of art is examined is how well it provides healing. This “romantic fantasy,” as Desmond Manderson calls it, concludes “that the purpose of art is to heal the world's wounds . . . [an] idea that art can save the day or complete the law.”Footnote ²³ Such a belief in art's power of healing is reflected in the Trial Chamber's claim that public memorials may “assist to restore the dignity of victims . . . in healing the wounds . . . [and] to promote a culture of peace and to contribute to national reconciliation.”Footnote ²⁴ This romantic approach sees the art works as complementing the legal judgment in fulfilling loftier aims of justice by integrating, reconciling, and synthesizing the conflicting strands of a dry law with the demand for publicity, healing, and peace.Footnote ²⁵ This is problematic not only for the way it instrumentalizes art, but also because it misses an opportunity to assess and understand the artistic and visual representations as law.

Hence, in approaching ICL and For those who are no longer here, I take my cue from W.J.T. Mitchell's insight that “[v]isual culture is the visual construction of the social, not just the social construction of vision,”Footnote ²⁶ as well as work by cultural legal scholars on how law and the visual are mutually constitutive.Footnote ²⁷ Here, rather than approaching visual images as (external) objects for analysis, images are conceived as constitutive elements of the legal field. This interconnectedness means it is necessary to pay attention to both the conditions and effects of visual images. For those who are no longer here, a sculpture likely apprehended visually, is the product of certain legal, social, financial, and cultural contexts that require attention. Yet, while these contexts are significant, the memorial is not reducible to them. Visual images also do something of their own, a doing which has varyingly been described as seduction,Footnote ²⁸ the punctum,Footnote ²⁹ or an affective quality.Footnote ³⁰ Much work has been dedicated to defusing the power of images, such as by drawing attention to the ways in which images may spectacularize victimhoodFootnote ³¹ and by questioning the extent to which photography can help us understand.Footnote ³² Yet, precisely because of their power, visual images, whether in the form of reparations or evidence, require being taken seriously—not as extrajudicial, or as completing, or as threatening law, but as part of the legal field.

Authorizing For those who are no longer here

For those who are no longer here provides an entry point to the contestations that make up the field of ICL by raising a question that lies at its heart: that of authority.

For the artist of the sculpture, French-Cambodian Séra, For those who are no longer here is a comment on both a personal and a collective loss. When the Khmer Rouge entered the Cambodian capital of Phnom Penh on April 17, 1975, he was a young boy. Together with his French mother and brothers, he fled to the French embassy, from where, they, like other foreigners, were evacuated in the weeks to come. However, the Khmer Rouge denied refuge to his Cambodian father. Séra never saw him again. For Séra, the memorial testifies to a very personal loss. His own experience of losing a father and being forced to leave the place he grew up provides him with a particular kind of authority to bear witness.Footnote ³³

At the same time, Séra wanted the sculpture to be “in homage to all the victims” and the body to “speak[] both to and beyond individual identity.”Footnote ³⁴ Yet, the sculpture has been somewhat controversial. An earlier version that Séra created, more abstract with missing limbs, was considered too disturbing by Phnom Penh authorities.Footnote ³⁵ Later, some civil parties in whose name the reparation was awarded argued when it was presented to them that it was not sufficiently “Cambodian,” that it was “too French.”Footnote ³⁶ In this way, the sculpture provokes questions concerning place and belonging, the extent to which a sculpture can symbolize experiences that are both shared and unique, and the relation between the creation of memorials and those in whose name they are erected.

The controversies are not limited, either, to the sculpture itself. To some extent, the initiative to create a public memorial emerged when Séra was struck by a lack of monuments or memorials on the Khmer Rouge period in public (as opposed to religious or private) spaces.Footnote ³⁷ Hence, when developing the proposal for the memorial, Séra suggested it be placed in an area of Phnom Penh known as Stat Chas, in a park outside the French embassy and adjacent to a busy intersection. In 1975, the intersection had been a point of departure for many of those forcibly evacuated, symbolizing, for Séra, an “inaugural episode of the Cambodian genocide.”Footnote ³⁸

In December 2017, For those who are no longer here was erected at Stat Chas at a ceremony attended by officials, civil parties, and monks. Although Stat Chas no longer serves as an entry and exit point for the city, it is a public space marked by that moment when the city changed and its population was forced to evacuate. Less than two months later, officials removed the sculpture.Footnote ³⁹ This, even though the memorial had been authorized by the ECCC, was fully funded, and was initially approved by the Phnom Penh municipality.Footnote ⁴⁰ A while later, a place was prepared for it within the gates of Tuol Sleng Genocide Museum, a museum dedicated to the experiences of those imprisoned, tortured, and killed when the site was known as Security Centre S-21. Despite Séra's intention for it to be a public memorial, it now stands within this particular institution, one that bears witness to related, but nevertheless different, experiences to that of forced evacuation.

So what do we make of this? These places and events provide contexts for the artwork, contexts that contribute to understanding the contestations and negotiations that make up the field of ICL. There is an unresolved question of authority here over who gets to represent and pay homage to those who suffered, over how to do so, and where. For those who are no longer here raises these questions but cannot—like ICL more broadly—provide full, complete, or definite finality. Meanwhile in Stat Chas, a short footpath still leads up to the pedestal on which the sculpture briefly stood. The empty pedestal is almost confrontational in how it signals an absence: a loss or lack. Maybe this does indeed “encourage learning,”Footnote ⁴¹ as hoped by the ECCC Trial Chamber.