From expressivism to communication in transitional justice: a study of the Extraordinary Chambers in the Courts of Cambodia

Abstract

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 vi 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.