Discursive Proceedings and the Transitional Trial:A View from the Extraordinary Chambers in the Courts of Cambodia

Abstract

Some transitional justice theorists view trials as communicative spaces that engage their publics in the aftermath of mass atrocities. Mark Osiel argued that the transitional trial's platform for courtroom storytelling, mediated by flexibly applied rules of legal procedure, fostered communal engagement with the social breakdown arising from mass crimes. Karstedt highlighted the significance of the visibility of victims in German war crimes trials starting in the 1960s compared to their relative absence at the International Military Tribunal at Nuremburg immediately after the Second World War. Through the agency of victim testimony, the later national trials communicated truths that could no longer be denied by society and precipitated a shift in public consciousness from collective amnesia regarding crimes of the Nazi era. The timing of the Auschwitz and Madjanek camp trials some decades after the war was critical, with the moral burden of response to their messages taken up by the young, educated elite who catalysed social and political change. How have modern internationalised transitional trials fared as communication platforms within their subject societies? What role does the criminal procedure of transitional courts play in producing communicative trials? These questions are considered in this chapter through an analysis of the proceedings of the Extraordinary Chambers in the Courts of Cambodia (ECCC).