Facing justice

James Jennings

Bou Meng giving testimony before the ECCC on 1 July 2009. Photo: WikiCommons

The Justice Facade: Trials of Transition in Cambodia
Alexander Laban Hinton
Oxford University Press: 2018
Alexander Hinton has spent thirty years visiting Cambodia; he knows the country and its language better than most. The focus of his latest book is the Extraordinary Chambers in the Courts of Cambodia (ECCC), the hybrid Cambodian-United Nations tribunal that opened its doors in 2006 to try the Khmer Rouge chieftains whose three years of rule at the end of the 1970s left almost 2 million people dead. The Justice Facade follows on from Man or Monster?, Hinton’s study of Duch — the chief torturer at the S-21 prison, also known as Tuol Sleng — and his trial.

At the outset, the author outlines the history of transitional justice, which established itself on the international scene in the 1970s and ’80s and gave birth to several international ad hoc tribunals and the later entry into force of the Rome Statute of the International Criminal Court. He finds in this history a powerful thread of idealism, allied with an assumption that liberal capitalist democracy is the state of being to which dysfunctional states should aspire. Transitional justice will help them get there.

What is “transitional justice” and why does it matter? Does it serve a useful purpose or is it a monumental waste of time and money? Does it really bring reconciliation and renewal to a battered country, or merely serve the democracy agendas of Western liberals? These are questions that Hinton explores. He offers his own definition of transitional justice: “an assemblage of discourses, institutions, capital flows, technologies, practices, and people devoted to providing redress for mass human rights violations and enabling a transformation of a society from [a] violent past to a better future”. It is not coincidental that the human beings come at the bottom of the list. For Hinton, this legalistic mode of reckoning with the past, delivered from afar by big institutions, lacks the human touch, just as the staff who administer them see only “a surface facade that reflects their idealized imaginaries of transitional justice, human rights, globalization, and democratization”.

I spent most of my career as an interpreter for the United Nations. After a number of years in Geneva, I grew weary of the squeaky-clean town by Lake Léman and began to hunt around for somewhere rather less hygienic. Cambodia fitted the bill perfectly. In 2011 I moved to Phnom Penh to take a position as senior English interpreter at the Khmer Rouge Tribunal, where the proceedings are held with simultaneous interpretation in Khmer, French and English. In the years I spent there, I sat through hundreds of hours of proceedings and heard wave upon wave of testimony from behind the glass windows of the interpreting booth.

As an interpreter, I read Hinton’s accounts of courtroom hearings in The Justice Facade with interest. Hinton is a trial observer with a fine touch. Unlike others — journalists, lawyers, historians — he is an anthropologist. He watches human beings carefully, never more so than when he describes the testimony of Bou Meng in the central section of the book. Bou Meng was an S-21 prisoner destined for extermination until his talents as a painter were discovered, enabling him to survive by painting portraits of Pol Pot.

As soon as the elderly, timid Bou Meng takes the witness seat, he is — suggests Hinton — snared in the trappings of the institution. To begin with, the president instructs him on the use of the microphone (as indeed he was wont to do with nearly all the witnesses): Do not speak before the red light is on, uncle, or the interpreters will not hear you. The witness is confused by all this. Borrowing from linguistics theory, Hinton writes that the original speech bids farewell to its origins and goes into a kind of translated “exile”. The interpretation circuitry becomes a delicate metaphor for the filtering power of the justice machine.

Hinton’s account is moving. He describes Bou Meng being chided for asking Duch, who is seated nearby, a direct question. A witness, warns the president, should not go off on a tangent like this. You should answer yes or no. In fact, Bou Meng has one mission only, which is to discover from Duch precisely where, over three decades earlier, his wife had been “smashed”. If he can get an accurate answer from the chief executioner, Bou Meng can gather some soil from the place, make a proper offering to his wife’s spirit and perhaps bring her soul — and his own — some peace. He is not seeking to answer the questions of judges, prosecution and defence, but to make contact with his dead wife. In the theatre of the courtroom, the protagonists’ purposes are at odds. And that, for Hinton, is what the tribunal cannot quite countenance in its zeal to “clip and prune” the testimony and capture it on the official transcript.

Transitional justice, warns Hinton, may not necessarily penetrate far below the surface in places like Cambodia. We learn that this is because it is a vehicle of “facadism”. The cover of the book shows a bland photo of the front of the ECCC building. The architecture of the court is “facadist”, we are told. Modernity is plastered across tradition, asserting a power relation between the visible and the masked. Masking is a key concept for Hinton; experience, as it is lived every day in Cambodia, and more importantly as it was lived between 1975 and 1979, is masked by the international justice facade.

In order to explain what he means by this, the author embarks on a long explanation of the other side of the justice and reconciliation story. Hinton dislikes linear approaches to narratives; they belong to the “binary” thinking of international justice where “savage” becomes “civilised” and “child-like” becomes “mature”. Instead we are given a colourful scrapbook of his encounters over the years with a range of Cambodian people who have managed, in differing ways, to give life to their vision of justice for their country. Many have founded organisations, some of which continue working today. We meet Theary Seng, the self-styled “poster child” of the civil parties, who embraced the opportunities offered by the court and then discarded them. There is the painter Vann Nath, quietly explaining the importance of the tribunal as a place in which to reach accommodations with the spirits of the dead. In all of these narratives, Hinton is disclosing modes in which local endeavours to reach forgiveness and restoration have been forged in the shadow of the official justice body. He senses a lighter and more discerning touch, allied with the voice of real experience.

Hinton’s coverage of religious aspects of justice and healing is thorough. Time and again he talks to Cambodians who confide in him that Buddhism has seen them through the ordeal, salved the pain and assuaged the wish for revenge. Communing with the spirits of their loved ones in formal ceremonies or quiet prayer, seeking first and foremost forgiveness from and for the dead, relying on karmic justice rather than the rigorous accounting of its Western alternative, Cambodians have worked for years, in their own ways, to come to terms with their past.

If I find this book troubling, it is because, for its thesis to work, the tribunal must be cast as the clumsy intruder. Otherwise the central premise stumbles. There is an underlying “us and them” dichotomy, which is surprising from a writer who has such distaste for the binary. After a while, the repeated mantra of the “transitional justice imaginary” masking the truth simply becomes glib.

In fact, transitional justice is a vast experimentation site. For Hinton to have acknowledged this would have enriched his account. Nobody has the final answer as to how to combine the best parts of the imported and the local. How can traditional reconciliation rituals and practices function alongside international tribunals? Some discussion of arrangements that have been tested elsewhere in the world (Rwanda, Uganda, Mozambique) would have made for more balanced reading. Hinton’s eye is almost exclusively focussed on Cambodia. “The transitional justice imaginary aspires to fill the lack [of a functioning society], delivering the ‘gift’ of civilisation,” he damningly writes. In other words, it is a mission civilisatrice, undiluted neo-colonialism.

In truth, Hinton never quite decides how much of a bogeyman he wants or needs the international court to be. Right at the end of the book, he takes the reader on one side, gives a big wink, and says, “… this book is not meant to dismiss global justice as mere ‘facade’ in the sense of a deception …” That is reassuring; but it is not the impression given by the previous 250 pages.

Certainly, there is much to ponder in this book. It contains numerous insights from people who have spent much of their lives trying to come to grips with tremendous suffering. Any students of transitional justice who see the Cambodian experience as a chapter in a larger, evolving volume will find much to advance their thinking. Meanwhile, the wider question remains pertinent. What exactly has the court achieved? In seeking an answer, you could do worse than begin with Hinton himself, writing in the Mekong Review in November 2017. Such tribunals deliver: “… a degree of accountability for genocide and other horrific atrocity crimes; a better, if still incomplete, understanding of the past; a modest contribution to healing; and a sense of possibility”.

It’s not an ambitious assessment, but it’s a good start.

James Jennings is the author of No Sell Dead, A Tale of Cambodia.

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