History and the Boundaries of Legality: Historical Evidence at the ECCC

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History and the Boundaries of Legality: Historical Evidence at the ECCC

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Title: History and the Boundaries of Legality: Historical Evidence at the ECCC
Author: Mamo, Andrew Benedict
Citation: Andrew Mamo, History and the Boundaries of Legality: Historical Evidence at the ECCC (May, 2013).
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Abstract: The Extraordinary Chambers in the Courts of Cambodia (ECCC) are marked by the amount of time that has elapsed between the fall of Democratic Kampuchea in 1979 and the creation of the tribunal. Does this passage of time matter? There are obvious practical reasons why it does: suspects die, witnesses die or have their memories fade, documents are lost and found, theories of accountability gain or lose currency within the broader public. And yet, formally, the mechanisms of criminal justice continue to operate despite the intervening years. The narrow jurisdiction limits the court’s attention to the events of 1975–1979, and potential evidence must meet legal requirements of relevance in order to be admissible. Beyond the immediate questions of the quality of the evidence, does history matter? Should it?
One answer is that this history is largely irrelevant to the legal questions at issue. In this view, the events of Democratic Kampuchea from 1975–1979 can be tried without reference to the events of the intervening years. The facts relating to the crimes stand on their own, and the legal theories relate strictly to those facts and events. This approach would find nothing in particular to distinguish the operations of the ECCC from those of any other tribunal, save for the unfortunate problem of mortality and imperfect memory.
Another possible (and plausible) answer is that the extralegal influence of history is comparable in kind to the extralegal influence of political interference — a matter of obvious and sustained concern at the ECCC. In this theory, advanced by several of the defense counsel, the evidence from 1975–1979 must be read in light of intervening events, which include the years of Vietnamese occupation, the collection of documentary evidence as part of an attempt to hold Khmer Rouge leaders accountable, and the stranglehold that the Heng Samrin–Hun Sen line of leadership has had over Cambodian political life. This historical gloss suggests the need for skepticism in reading evidence, and may even raise the question of what has been omitted (intentionally or unintentionally) from the documentary record. In this telling, the influence of history is effectively the accumulation of years of political interference, culminating in the well-known suspicions of interference on the Cambodian side of the court.
I argue for a third understanding of the role of history, which neither reads it out through a single-minded focus on the face of the evidence, nor vests it with the power of thorough corruption. I argue instead that an understanding of the historical context of the court and of the evidence that is presented before it reframes the basic relationship between the court and Cambodian society. For, despite the differences between the two previous accountings of history, both insist on maintaining a strict boundary between the legal procedure of the court and the extralegal influences of society—the first version, in order to insist that the court can repel these influences; the second version, in order to insist that the court cannot. But this insistence on absolutism ignores the facts that the court is itself an actor in the drama of Cambodian history, a product of both domestic and international politics, and that just as attempts to determine accountability in civil society occur in the shadow of the law, so too are attempts to ground judicial fact-finding in robust historical accounts inevitably shaped by a wider historical discourse.
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Citable link to this page: http://nrs.harvard.edu/urn-3:HUL.InstRepos:10985172
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