Political Violence as a Time That is Past? Engaging With Non-Participation in Transitional Justice in Cambodia
| Author | Julie Bernath |
| Published date | 01 October 2019 |
| Date | 01 October 2019 |
| DOI | http://doi.org/10.1177/0964663918805270 |
| Subject Matter | Articles |
Article
Social & Legal Studies
2019, Vol. 28(5) 600–624
Political Violence as a Time
ª The Author(s) 2018
Article reuse guidelines:
That is Past? Engaging
sagepub.com/journals-permissions
DOI: 10.1177/0964663918805270
With Non-Participation in
journals.sagepub.com/home/sls
Transitional Justice
in Cambodia
Julie Bernath
swisspeace and University of Basel, Switzerland
Abstract
Transitional justice scholarship has increasingly focused on participation to critically
reflect upon the legitimacy and transformative potential of transitional justice. This
article addresses these issues yet through a different vantage point: that of non-
participation. It focuses on the case study of the Khmer Rouge Tribunal and a partic-
ular set of actors: those who continue to face political violence in Cambodia today.
Thereby, it engages with the perspectives of those often overlooked in transitional
justice for having opted out of the process, but also for putting forward justice claims
that exceed the mandate of established transitional justice institutions. This article
draws from qualitative fieldwork conducted in Cambodia between 2013 and 2016.
It demonstrates the epistemic value of engaging with non-participation in transitional
justice. It argues that non-participation in judicial transitional justice processes is
inherently linked to the ways in which ordinary citizens experience and understand the
law in their everyday life. It further highlights continuities in subjective experiences of
political violence, which question discourses that political violence is a time that is past
in Cambodia.
Keywords
Cambodia, Khmer Rouge Tribunal/ECCC, non-participation, resistance, transitional
justice
Corresponding author:
Julie Bernath, swisspeace, Sonnenbergstrasse 17, 3013 Bern, Switzerland; the University of Basel, Petersplatz
1, 4001 Basel, Switzerland.
Email: julie.bernath@swisspeace.ch
Bernath
601
Introduction
Over the last decade, policymakers, researchers and practitioners in the field of transi-
tional justice have increasingly turned their attention to the issue of participation, in
particular victim participation, to the extent that it has become a ‘mantra in the field of
transitional justice’ (de Greiff, 2016: 3, §2). This focus on participation mainly relates to
developments in international criminal law and international human rights instruments
and principles. But calls for increased participation and victim-centred transitional jus-
tice processes are also inherently linked to the critical turn in transitional justice scholar-
ship and recent debates on the lack of transformation of transitional justice processes or
their ambivalence in terms of impacts (see e.g. Gready and Robins, 2014; Jones et al.,
2015). Much of the recent literature on victim participation indeed examines the discre-
pancy between rhetorical commitments to victim participation and the subjective experi-
ences of victims.1 Scholars have also increasingly raised questions of the legitimacy of
transitional justice processes and their lacking local embeddedness (see e.g. McEvoy and
McGregor, 2008; Riaño Alcalá and Baines, 2012; Shaw and Waldorf, 2010). In this
regard, participation is conceived as a way to render these processes more meaningful
for the supposed beneficiaries in the specific contexts in which they take place.
This article speaks to these debates on the legitimacy and transformative potential of
transitional justice processes, or the lack thereof, yet through a focus on non-participa-
tion. In contrast to the issue of participation, non-participation has so far not been
analysed explicitly in the field of transitional justice, although some works have engaged
with the notion of silence (Obradović-Wochnik, 2013). Non-participation has, however,
been introduced in critical peace scholarship in relation to debates on the liberal peace
(MacGinty, 2012). The lack of attention to non-participation may simply be linked to a
general research bias towards visible forms of action and engagement with transitional
justice. Discussing non-participation in peacebuilding processes more broadly, Mac-
Ginty (2012), however, argued that it also relates to how non-participation escapes the
transformation script of the liberal peace intervention, that is, of the specific reading of
peace that emerged in the post-Cold War era. In liberalism and the liberal peace, citizen
participation constitutes both a means and an end goal. The assumption is, therefore, that
citizens will participate if only given the opportunity to do so. As a result, non-
participation often tends to be ignored, conceived in pejorative terms or simply cast
as a technical problem that can be remedied by relatively straightforward improvements
in access policies. This approach on non-participation is relevant for transitional justice
processes as they have become an integral part of liberal peacebuilding (Lambourne,
2009; Sriram, 2007). In addition to MacGinty’s work, this article also draws upon works
on legal pluralism and the role of law in everyday life. This scholarship indeed highlights
the importance of conducting research ‘not only on knowing how and by whom the law
is used, but also when and by whom it is not used’ (Ewick and Silbey, 1998: 34).
This article asks what we can learn from non-participation in transitional justice
processes. Taking an empirical approach, it focuses on the case study of the Extraordi-
nary Chambers in the Courts of Cambodia (ECCC). Also known as the Khmer Rouge
(KR) Tribunal, the ECCC is a hybrid tribunal that was established in 2004 to try the
senior leaders and those most responsible for crimes committed under the KR regime
602
Social & Legal Studies 28(5)
between 17 April 1975 and 6 January 1979. While the transitional justice process in
Cambodia cannot simply be reduced to the ECCC, as civil society played a significant
role in facilitating, widening and enriching the ECCC-focused transitional justice pro-
cess (Sperfeldt, 2012), this article examines non-participation in the context of the ECCC
legal proceedings specifically. This case study is particularly relevant for discussions on
non-participation since the ECCC offers significant possibilities for participation: not
only is it located in Cambodia, its civil party participation scheme has also been con-
sidered (at least initially) to be the ‘most progressive mode of victim participation’ in
international criminal justice (Thomas and Chy, 2009: 231).
Reflecting upon the cases during which avenues for participation at the ECCC are not
being used, this article engages with the perspectives of a specific set of actors usually
excluded from the scope of the transitional justice process: those who continue to face
political violence in Cambodia today. Drawing from qualitative fieldwork conducted in
Cambodia between 2013 and 2016, this article is based on qualitative interviews with 18
respondents who are experiencing political violence and are engaged in current political
struggles. Based upon an interpretivist ontology and epistemology, the method of qua-
litative interviews was chosen as it uniquely allows engaging with respondents’ situated
and contextual accounts and interpretations (Mason, 2002: 65). More specifically, nar-
rative interviews with a focus on life stories were conducted whenever possible. This
method provides the opportunity for the respondents to select and order events in ways
that reflect their own meanings, even if they depart from the researcher’s assumptions
and analytic boundaries. This openness is particularly important since transitional justice
processes frame past conflicts in ways that do not necessarily reflect subjective experi-
ences of victimization, and researchers possibly reproduce the same problematic tem-
poral boundaries (see e.g. Fujii, 2010). However, since it was not always possible to use
this method, I also conducted semi-structured, in-depth interviews. This interview
method is also recognized as particularly relevant in peace research for deepening and
understanding the complexities of (post)-conflict societies (Brounéus, 2011). Principles
of do no harm and ethical considerations have guided the fieldwork at all times (see e.g.
Goodhand, 2000), including efforts to practice restraint, that is, knowing when to stop
during interviews in order to prevent re-traumatization (Wood, 2006: 381).
With such a small data set, the aim of this research is not to be representative but to
gain insights into the perspectives of different social groups, from urban and rural areas,
who are engaged in current political struggles and experience political violence. This
article thus proposes a specific take on non-participation in the context of Cambodia. It
does not examine other themes of non-participation worth exploring, such as the non-
participation of members of the young generations born after the end of the KR regime
who today constitute the vast majority of the population. Rather, this article specifically
aims to analyse non-participation in the context of political violence because this aspect
is often overlooked in discussions of transitional justice in Cambodia.2 This specific
focus on non-participation, however, does not intend to conceal the diverse ways in
which many citizens actively participate in the transitional justice process, including as
civil parties, and to question the significance the ECCC may have for them.3 Rather, it
proposes to look at dynamics taking place alongside these forms of participation in order
Bernath
603
to draw an analysis...
To continue reading
Request your trial