Constructing victimhood at the Khmer Rouge Tribunal
| Date | 01 September 2018 |
| Author | Rachel Killean |
| DOI | 10.1177/0269758017747645 |
| Published date | 01 September 2018 |
| Subject Matter | Articles |
Article
Constructing victimhood at
the Khmer Rouge Tribunal:
Visibility, selectivity
and participation
Rachel Killean
Queen’s University Belfast, UK
Abstract
This paper considers the actors and contexts which frame victimhood within transitional justice
mechanisms, using the Khmer Rouge Tribunal as a case study. Drawing on critical victimology’s
concern with the cultural, political and legal construction of victimhood, this paper explores how
heterogeneous legal and political elites can create layers of exclusion, shaping which victims are
seen, and which are unseen, within official responses to atrocity. While the politics of victimhood
in domestic and transitional contexts has been acknowledged within the literature, this paper’s
actor-oriented approach contributes a thicker understanding of how ‘worthy’ victims are selected
from all those who have suffered from mass atrocity. In particular, it considers how political
compromises, jurisdictional limits, prosecutorial choices, and the creation of a civil party partici-
pation system have shaped victim visibility within the Khmer Rouge Tribunal.
Keywords
International criminal law, critical victimology, victimhood, selective justice, Khmer Rouge Tribunal
Introduction
Since World War Two highlighted the grave harm so frequently inflicted on civilians during times
of conflict, there has been a growing willingness to prosecute atrocities under international crim-
inal law (ICL). This has been reflected in the proliferation of ICL mechanisms, including ad hoc
tribunals, hybrid institutions and the permanent International Criminal Court (ICC). Such institu-
tions have often been analysed for their ability to bring ‘justice’ to victims, and an ever-growing
literature has developed in relation to victim-related issues, including reparations (Moffett, 2017;
Corresponding author:
Rachel Killean, Law School, Main Site Tower, Queen’s University Belfast, Belfast BT7 1NN, UK.
Email: Rachel.killean@qub.ac.uk
International Review of Victimology
2018, Vol. 24(3) 273–296
ªThe Author(s) 2018
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DOI: 10.1177/0269758017747645
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McCarthy, 2012), complex political victims (e.g. Bernath, 2015; Meyers, 2011), the role of the
victim within the courtroom (Trumbull, 2008; McGonigle Leyh, 2011), and victims’ perceptions of
justice (Stover, 2005; Hodz
ˇic´, 2010). Parallel developments in victim-centric discourse and prac-
tice can be seen within ICL institutions. Victims have become progressively central figures in
courts’ legitimising practices,
1
while the inclusion of victim participation provisions in several
courts has been heralded as signalling a move towards a more ‘victim-orientated justice’ (Vasiliev,
2009). Such developments have been accompanied by increased recognition within international
human rights law of victims as holders of rights, including the rights to protection, participation,
representation and reparation.
2
Despite this nominal move towards ‘victim-centrism’, the extent to which victims are rendered
visible within these processes remains contested (McEvoy and McConnachie, 2013; Kendall and
Nouwen, 2013; Fletcher, 2015), and courts have found their ability to deliver justice subjected to
criticism from victimised populations (Kutnjak Ivkovic´ and Hagan, 2011; Killean, 2016). This
disjuncture between victim discourse and the delivery of ‘justice’ can in part be attributed to the
selective delivery of justice offered by legal institutions (Robins, 2017: 45). Only a small number
of atrocities fall within the scope of ICL, and of those only some will be acknowledged as such by
the international community (Cryer, 2005; Simpson, 1997). Even those victims whose atrocities
fall within ICL may be excluded from recognition and redress (Robins, 2017), as prosecutorial
strategies prioritise specific harms and perpetrators over other s (Pritchett, 2008; Coˆte, 2005).
Those whose victimisations are prosecuted may continue to find themselves excluded from or
marginalised by the trial process, as adversarial procedures may reduce their visibility within the
courtroom (Dignan, 2005). These institutional choices with regards to jurisdictional limits,
charges, and modes of victim participation, create what Kendall and Nouwen (2013) have termed
a ‘pyramid’ of victimhood, with victims of harm at the bottom, and those recognised by ICL
institutions as worthy of redress at the top.
This paper situates these institutional choices, the pyramid of victimhood they create and the
selective justice they shape within broader criminological and victimological debates, drawing
from critical victimology in particular. Rising out of a desire to critique definitions of symbolic or
‘ideal’ victims and perpetrators (Christie, 1986: 18), this branch of victimology is concerned with
who has the power to apply the label ‘victim’ and what considerations influence that determination
(Miers, 1989; Mawby and Walklate, 1994). Highlighting ‘hierarchies of victimhood’ (Carrabine
et al., 2004), which distinguish between those victims who are ‘innocent’ (McEvoy and McCon-
nachie, 2012: 531–532), ‘good’ (Madlingozi, 2007) or ‘worthy’ (Tilly, 2008) and those that are
not, victimologists have demonstrated that who acquires the label of victim depends not only on the
victims’ characteristics, but on the reactions of others (McAlinden, 2014). Thus, there is a political
dimension to the hierarchy of victim legitimacy, with the very term ‘victim’ being open to
manipulation by political and legal elites in the pursuit of other goals (Dignan, 2005; Walklate,
2011: 189). In response, critical victimologists have sought to uncover victimisation that may be
rendered invisible due to the political climate, social factors, or the marginalised status of the
victims (Holstein and Miller, 1990; McGarry and Walklate, 2015).
Although critical victimology developed in the context of Western domestic criminal justice, in
recent years it has provided a framework for exploring the role of states in perpetrating crime
(Kauzlarich et al., 2001), international responses to atrocity (Letschert et al., 2011) and the
emergence of victim hierarchies within transitional justice contexts (Van Wijk, 2013; McEvoy
and McConnachie, 2013). International criminal courts are increasingly acknowledged as having
the power to produce and legitimise categories of victims, condemn perpetrators and shape
274 International Review of Victimology 24(3)
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