This guest essay by Mark Drumbl and Caroline Fournet is a reflection on their guided visit to the premises of the Extraordinary Chambers in the Courts of Cambodia (ECCC) in Phnom Penh undertaken this summer in the wake of the 2019 Conference of the International Association of Genocide Scholars. The following captures their experience of wandering about these premises, in juxtaposition to some tourism delegates to the conference were able to do elsewhere in the country. Their essay moreover introduces the topic of the visualities of aging at international criminal courts, the subject of a special issue of the International Criminal Law Review, which they co-edit and to which they welcome contributions. -legal sightseeing
The Judicialized Infirmary:
The Aesthetics of Prosecuting the Barely Alive
Mark Drumbl & Caroline Fournet
On 4 August 2019, Nuon Chea – the Khmer Rouge’s chief ideologist – passed away in Phnom Penh’s Khmer-Soviet Friendship Hospital. He was 93. Nuon Chea had been convicted – twice, in fact – by the Extraordinary Chambers in the Courts of Cambodia (ECCC). In Case 001/02, the ECCC first convicted him of war crimes and crimes against humanity and sentenced him to life imprisonment. At the time, 7 August 2014, he was 88 years old. Following another separate trial (Case 002/02), the ECCC additionally convicted him of genocide, crimes against humanity and grave breaches of the 1949 Geneva Conventions. Following these proceedings, Nuon Chea received a second life sentence on 16 November 2018. Initially placed under provisional detention on 19 November 2007, he had therefore been incarcerated since the age of 81.
The ECCC was established pursuant to an agreement adopted between the United Nations and the Government of Cambodia. The ECCC prosecutes senior leaders of the Khmer Rouge regime for grievous crimes that had been committed during its reign of terror, namely, between 6 April 1975 and 6 January 1979. Two million Cambodians perished during these dreadful years from murder, forced labor, and starvation. A People’s Revolutionary Tribunal set up in 1979 by the replacement Cambodian government convicted Pol Pot, the top leader of the Khmer Rouge (Brother No. 1), in absentia after five days of proceedings and sentenced him to death. The sentence was never officially carried out. Pol Pot died in 1998 while under house arrest, ostensibly from heart failure but possibly from suicide.
Geriatrics in the Dock
Nuon Chea was among the oldest of the ECCC detainees. But he was not at all exceptional in this regard. Ieng Sary – the Khmer Rouge’s foreign minister – was born on 24 October 1925 and died while in detention on 14 March 2013. Ieng Sary – like Pol Pot – had been convicted in 1979 by the People’s Revolutionary Tribunal. His wife Ieng Thirith was found by the ECCC to be unfit to stand trial due to dementia. Released by a unanimous decision of the ECCC Trial Chamber on 13 September 2012, at the age of 80, she remained under judicial supervision until her death three years later. Ieng Thirith had served as the former minister of social affairs.
Khieu Samphan, tried and convicted alongside Nuon Chea in Cases 002/01 and 002/02, and twice sentenced to life imprisonment, still lives. Born on 28 July 1931, he became the Khmer Rouge’s head of state. When sentenced for the second time, in 2018, Khieu Samphan was asked to stand to hear the verdict. He obliged. In order to participate in this rite of the trial process, however, Alex Hinton reports that two guards had to prop him up, one of whom by hoisting the back of his trousers. Also still living is Kaing Guek Eav, alias Duch, former commandant of the notorious S-21 torture center and a subordinate to Nuon Chea. Duch is 76 years old. He serves a life sentence in the Kandal provincial prison in Cambodia.
To hear the second verdict in Case 002/02, Kihieu Samphan arrived at the ECCC in a van. Nuon Chea came by ambulance. The court building assuredly was ready for them. Like many international courts, the ECCC operates, in terms of infrastructure, in a repurposed building. This building is sited roughly 16 kilometers west of Phnom Penh. Before becoming an international court, the ECCC physical plant hosted the Royal Cambodian Armed Forces High Command Headquarters. The Khmer Rouge had seized that building and repurposed it, too, during the Democratic Kampuchea years. The Khmer Rouge after all annexed many buildings. S-21 had been a school prior to becoming a torture site. This is one reason why its floor tiles are bright and patterned, in a captivating shade of ochre, and why it has windows, balustrades and breezeways.
The Architecture of Rhythmic Convalescence
The ECCC indeed feels repurposed – as it is – yet with one notable (at times innovative) architectural twist. This twist involves all the medicalities fitted and engineered for the defendants. To be sure, many international courts have medical components to them, some of which are used: indeed, pace Milošević. But at the ECCC the medicality tips into rhythmic convalescence. The ECCC’s medicalities moreover appear all-the-more juxtapositionally glaring in light of the parlous state of public health provision in Cambodia.
The official tour of the ECCC, at least the tour that we took in July 2019, began as it should at an entrance. An ambulance parks there, protected under a curved awning that shelters it from sun and rain. Perhaps it was the one that had brought Nuon Chea. Or perhaps not. In any event, the guide opened the tour with the ambulance. He stated the obvious, namely, that it parks there in case something happens to a defendant – not a security issue, no, but in case a defendant falls ill. Having the ambulance there, well, it makes it safer, so it seems, to prosecute a defendant who totters and teeters between life and death. From the ambulance, the guide gestured to the right, as one faces the curved tunnel of the entrance, where he pointed out a holding cell. From the outside, it all looks quite austere and foreboding: a stark windowless door with an adjacent window perpendicularly to the right. The guide didn’t show the inside, but he spoke of it. Inside, according to his words, is a video feed, a monitor, and a bed. The holding cell was for the defendants, the barely alive (or living dead), who could retire there should their presence in the courtroom become too taxing and too tiring – a possibility Nuon Chea availed himself of on the day his verdict was delivered. Defendants could be brought to that cell to follow the proceedings – the proceedings against them – in recumbent form: dozing, napping, sleeping even, while the show goes on. This way, due process is met all the while.
The guide made it clear that on site at the ECCC nutritious food was to be found to keep the defendants healthy. Barely alive war criminals seem to fare better than the many other barely alives throughout Cambodia. They appear, aesthetically, to be indulged, while the many others – invisible – scrabble and struggle. But the same can be said generally, to be sure: accused war criminals within international criminal justice institutions appear quite well off compared to persons tried at the domestic level and to the population – including victims and survivors – at large, including in terms of access to health care. Retributive imbalances abound. And, certainly, international institutions would not wish to treat elderly defendants poorly, feeding them badly, and neglecting them. Those aesthetics also would be most troubling and disturbing, no?
In front of the ambulance, and across from the holding cell, stands the ECCC’s medical unit. We didn’t ask, so we don’t know exactly, but we sensed that the medical center was not for all but only for a few – as it now stands, one. All this would seem somewhat ironic in a country with a life expectancy in the mid-sixties. On an occasion, or two, the guide called it a hospital. We don’t think it is a hospital, really, since when they weren’t (aren’t) doing too well the barely alive defendants end(ed) up elsewhere, in a real hospital. Infirmary is a better word, perhaps.
But the accommodations for all these infirmities are not side-pieces to the ECCC building. Rather they are integral to the architecture of the place and the public outreach, as we experienced it, which it radiates.
The old building has multiple floors. The court is up a level. The stairwells and staircases have been retrofitted with wheelchair lifts. At the entrance to the courtroom one encounters a toilet. There is a piece of paper affixed to the door. It reads, ‘for accused only’. The toilet is not for witnesses or victims (a sign points to other facilities elsewhere for persons other than the accused). The bathroom, the one for the accused, has moreover been modelled in the most accessible manner. The whole building, in fact, is strikingly accessible. All this progress and all this equality is to be welcomed. Yet the impetus, its raison d’être, remains because and for these defendants, inspired by an imperative to keep them alive so as to prosecute and punish them. Indeed, perhaps, their presence in the courtroom might be an early beacon in Cambodia of the human rights of the differently abled, signaling the need to construct inclusively.
Troublesome Relics and Pitiful Objects
Archaeology, too, is central to Cambodia, notably the temples in the north-west: Ta Promh, Bantreay Srei, Bayon, Angkor Wat, and many more. So still for so many years and now they find themselves so busy and burgeoning, if not burdened, with the feet of so many visitors. Some, like twelfth-century Ta Promh, melt into the forests while the jungle wends about, sinuously all around, propped up at times with metallic prosthetics. The sunrise over Angkor Wat has become bucket-listed. The image is iconic. Touristically iconic, much like selfies taken at Notre Dame in Paris or the Taj Mahal in Agra. So these temples no longer are still. They endure the pedestrian pitter-patter and thereby remain enduring. But they endured beforehand, too. Despite attempts to eradicate everything, and reboot a ‘Year Zero’, even the Khmer Rouge embraced their imagery. At the Killing Fields, in the little museum, a placard shows the flag of Democratic Kampuchea. The flag is bright red and festooned with a yellow image of Angkor Wat in the middle. The same image, that of Angkor Wat, flies on Cambodia’s flag today. That museum, moreover, has placarded photographs of the ECCC defendants. In those photographs, selected for public display, those defendants look hardier and haler than how they look in many (most) other photographs. It seems that was a deliberate curatorial choice.
These defendants, well, they too are archaeological relics of sorts. To be preserved in the living, if possible, in order to be prosecuted and serve as much sentence as can be eked out. Perhaps the trials help them live longer physically and mentally, because of the seemingly doting care they receive.
In a sense, and this is not a new point, trials – and the courtroom – are a form of publicity … and it could certainly be argued (tritely) that ‘there is no such thing as bad publicity’. Yes, trials can provide a platform for the expression of hatred and the condoning of atrocities; yes, trials can give perpetrators the opportunity to deny crimes were ever committed and to shift blame. International criminal trials, including those before the ECCC, are admittedly no exception. Yet, on a closer look, what appeared before the ECCC, whether repentant or not, were aged, unhealthy-looking individuals, some missing teeth, others hardly able to stand. Behind fairly pompous names which could trigger some form of fear and/or reverence and which, at the time of the Ângkar, denoted ‘honorific seniority’, lurked in reality very old and frail individuals. In court, Brother No. 2 (Nuon Chea) evidenced a pathetic attempt to retain a semblance of authority by wearing black glasses. If the charges against them are to trigger horror by presenting the acts they allegedly committed, well, as individuals – at the time of their trial – they instead inspired curiosity and sometimes disdain. Assuredly, the barely alive retain agency to the very end. They bullshit and exaggerate, they jockey, they fake it, or some of it, and they become troublesome, they demand. They are far from ideal defendants though they may once have been ideal perpetrators.
When tried, these barely alives – who achieved fame through the perpetration of horrendous acts – do not trigger our pity or clemency but rather a form – contemptuous or not – of curiosity. Is it not as if we were looking at relics – objects from ancient times – exposed behind, and protected by, a glass window? The courtroom morphs into a museum; the judicial process becomes an act of curation. These analogies raise a series of questions, notably as regards the background and aims of the curator as well as the identity of the intended audience.
Each trial being its own exhibition by and of itself, the curator will carefully organize it and guide – more or less leadingly – the public. The curator will decide which pieces to highlight and, in a way, which story to tell. In the courtroom, just like in a museum, the public – the ‘visitors’ – go from one phase to the next not by chance but because the curator has chosen a specific itinerary. Admittedly, each party at trial might be a distinct curator, with its own approach to the exhibition and with its own itinerary. The public, however, stays the same; the centerpiece – the defendant – as well. When the defendant is a barely alive his or her deliberate display can be, if not manipulative, then at least highly oriented and the role and aims of the curator(s) might be influential. On the one hand, the barely alive appearance might call for leniency towards aged individuals, who need help and care rather than condemnation for acts that happened in a far-away past. On the other hand, displaying the barely alive might facilitate their qualification as evil. The museography would here orchestrate an ‘othering’ process and allow for the excision of the barely alive from the community of the living. Problematically, the judicial museography could ultimately further a distancing and contribute to confining atrocities to the past.
In this sense, there might be something generational in these trials and something of a ‘cleanse’, making room for the new, the fresh, the modern, the young. Prosecuting the barely alive could also be seen as symbolically cutting the umbilical cord, marking a radical detachment, with the irrational belief that the youth is totally different from the elderly, in complete ignorance or indifference to the inevitable truth that the old is the has-been young, and the young is the will-be old. Maybe the generational feature of trials is rooted in fear: fear of this truth and fear of ageing. In that sense, trials displaying living dead, and publicizing old individuals who committed evil might constitute a form of exorcism.
Law Between Life and Death, Running Against Time
Much has been written about the legalisms that inhere (or not) in prosecuting the barely alive. Very little has been written about the aesthetics the barely alive encrust into the architecture of courtrooms and the trappings of the trial process. This is what we seek to do in this project. It is but a first step, and it is one that is both firm and tentative, hearty and hesitant. This step also strays into a liminal and interstitial world. This is the gauziness between life and death, the straddling space of the fading. How to imagine this space? What words to use to describe it? Should the words of the living be used – the vocabularies of law, of process, of evidence? Should the nether words of the necropolis be invoked – the words of memorialization, of preservation, of the archive, of respect for the dead, of the deceased body? Or both?
Age advances time and as their time, the time of the defendants, advances the trial process becomes rushed. Hasty and breathless, two things that law isn’t supposed to be. The inevitability of death, a death that extinguishes legal process, hovers over the ECCC like a sword of Damocles.
The barely alive seep into the very core of the ECCC. They are existential to its mission. That means that the justice project it pursues also teeters and totters between life and death. The building is barely alive as its work product withers and dries up. Perhaps that building – this retrofitted, bricolaged palace of justice – shall have an afterlife. Perhaps it too shall be(come) repurposed for something else, another goal, another task, another venture – modest or grandiose, messianic or heathen, international or local. The act of prosecution ends and it is hoped something new begins in the places where prosecutions once occurred. If not, then, that building eventually itself becomes a relic, something archaeological, a temple of its time and a memorial to the fate of a faith.
Oddly, in light of all this elderliness everywhere, when we left the tour and exited the building on that hot July day we were greeted by hundreds of Cambodian school-children. They were in uniform. They chattered joyfully and clattered animatedly while eating outside at plastic tables in the open-air sitting area. We learned from our guide that they were from far away. They had come to the capital to visit the triad of S-21, the Killing Fields, and lastly the ECCC. For us, it was a pleasant – and perhaps reassuring – sight while we exited the site.
Mark Drumbl is Professor at Washington and Lee University, School of Law. His research and teaching interests include public international law, global environmental governance, international criminal law, post-conflict justice, and transnational legal process.
Caroline Fournet is Professor at University of Groningen, Faculty of Law. Her research expertise includes international criminal law, international and European human rights law, and comparative law. She is editor in chief of the International Criminal Law Review.
 We generally opt for the ‘barely alive’ term, the ‘living dead’ being mostly used to qualify atrocities themselves. See e.g. Anne Applebaum, Gulag: A History, New York : Doubleday, 2002, 224-225: ‘throughout the Gulag’s existence, the prisoners always reserved a place at the very bottom of the camp hierarchy for the dying – or rather, for the living dead’. Cited in Edward Weisband, The Macabresque – Human Violation and Hate in Genocide, Mass Atrocity, and Enemy-Making, Oxford : Oxford University Press, 12 (emphasis added). The ‘living dead’ is also terminology employed with respect to victims of the Nazi extermination camps. See ibid.