Trading a Theatre for Military Headquarters: Locating the Khmer Rouge Tribunal.

• Author: Gidley, Rebecca
• Position: Selection of Royal Cambodian Armed Forces headquarters over Chaktomuk Theatre in Phnom Penh - Report

How did a United Nations (UN)-sponsored judicial process end up being held on a military base? And what effects has this choice had on the trial's proceedings and their potential legacy? These are the questions that motivate this article. The Extraordinary Chambers in the Courts of Cambodia (ECCC) is a hybrid domestic/international court created by an agreement between the Cambodian government and the UN. It was created to examine the crimes of the Khmer Rouge whose 1975-79 regime led to the death of an estimated 1.7 to 2.2 million people. (1) The ECCC began operating in 2007 and has so far convicted three former Khmer Rouge leaders of crimes against humanity and sentenced them to life imprisonment: Khieu Samphan (former Head of State of Democratic Kampuchea); Nuon Chea (second in command to Khmer Rouge leader Pol Pot and often referred to as "Brother Number Two"); and Kaing Geuk Eav (director of S-21 Security Centre where up to 20,000 Cambodians were imprisoned and tortured). The Court's premises are located on the outskirts of the capital Phnom Penh in a cordoned off section of the Royal Cambodian Armed Forces (RCAF) headquarters.

There are a number of scales, from the courtroom itself up to the nation it is held in, at which location and space can be considered in the context of a court. Given that this article discusses a court with UN involvement, the first level of analysis or decision making is the decision over the country in which the trials are to be held. The decision to hold a Khmer Rouge tribunal, with UN participation, in Cambodia rather than in a foreign country was unusual at the time it was made, although it went on to set the precedent for future tribunals. On a much smaller scale, literature on trials and performance often discuss the staging and theatricality of a trial, with judges seated on high, protagonists and antagonists on either side (who is regarded as the protagonist will be determined by the audience member's perspective on the trial taking place). This performative element is also evident at the ECCC, particularly with the opening of a large curtain between the audience and the courtroom denoting the start of proceedings each day. This article focuses its analysis between these two scales, examining the premises and their location within a city. The argument in this article also interacts with the existing accounts of the negotiations between the Cambodian government and the UN to create the ECCC. (2) The main period of these negotiations ended in 2003 but some issues, such as selecting premises, continued. Less attention has been paid to the way these negotiation dynamics continued after the agreement had been reached, a gap that this article seeks to address.

In this article I discuss how and why the RCAF headquarters was chosen as the site of the ECCC. Significant preparatory work went into the originally proposed location of Chaktomuk Theatre in central Phnom Penh before the government suggested instead that the trials be held on the premises of a newly built military site. (3) Through an exploration of UN documents and the literature on tribunals, I demonstrate the combination of practicalities and symbolism that were associated with the selection of a site for the ECCC. Ultimately, I argue that the selection of a military compound on the outskirts of the city is one indication of the level of control the Cambodian government has been able to exert over the Tribunal.

The central sections of this article discuss the negotiation process that occurred between the Cambodian government and the UN Secretariat over the premises for the ECCC. In order to do so, I draw on a cache of internal UN documents I acquired access to during my fieldwork in Phnom Penh. They consist of thousands of pages of documents relating to the Khmer Rouge Tribunal from the UN Office of Legal Affairs between 1998 and 2006. (4) They provide a valuable inside account of this process from the UN perspective but no comparable documents from the Cambodian side are available in the public domain. Accordingly, the process between the two sides can be discussed with more clarity than the motivations of the Cambodian government, which remain opaque.

This article first considers the implications associated with choosing a country and city in which to locate an international tribunal, showing the shift in thinking from the first ad hoc international criminal tribunals to hybrid tribunals, as well as exploring the existing literature on location and physical space associated with trials. It will then examine a precursor to the ECCC, the People's Revolutionary Tribunal (PRT) held in 1979 in Chaktomuk Theatre. The Cambodian government drew very explicit connections between the PRT and the ECCC during the negotiation period. The third section looks into the decision to hold the Khmer Rouge Tribunal in Cambodia itself, followed by an extensive discussion of Chaktomuk Theatre as the likely venue for the ECCC. Finally, the article examines the shift of location to RCAF headquarters, the UN's concerns about this new location, how it has affected (or not) the Court's work and the implications this site has for the understanding of the ECCC.

Understanding the Impact of Location

Discussing the location of UN-sponsored international criminal trials normally focuses on deciding which continent, country or city will host them. The first of these modern tribunals to be established, the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR), were not held in the country where the crimes were committed. At the time the ICTY was created in 1993, the conflict was still ongoing in the states of the former Yugoslavia and so the Tribunal was held at The Hague in the Netherlands. (5) A year later, when discussions were held with the new Rwandan government about a tribunal to address the genocide which occurred in that country in 1994, the government advocated for a tribunal to be held in-country. However, the UN Secretary-General's report cautioned against this suggestion based on concerns for the security of the Tribunal and the impartiality of the justice it would deliver. Instead, the location of Arusha, Tanzania was chosen as it provided some geographic proximity for ease of accessibility, and because the government of Tanzania was willing to act as host. (6)

At this point in the development of international criminal justice mechanisms there emerged a preference for hybrid domestic/international courts located in the country where the crimes had been committed, featuring both foreign and local judges on the same bench, and applying both international and national law. The ECCC is one example, along with the Special Court for Sierra Leone (SCSL) and the Special Panel for Serious Crimes in East Timor. The agreement between the Sierra Leone government and the UN called for the SCSL to be located in Sierra Leone and a specially designed complex was constructed in Freetown, on land previously occupied by a prison. (7) Following the completion of the SCSL's mandate, part of the compound was converted into the Sierra Leone Peace Museum. The trial of former President of Liberia, Charles Taylor, was held in the Netherlands for security reasons, but the vast majority of cases were heard in Sierra Leone. In East Timor, the situation was slightly different as the United Nations Transitional Administration in East Timor (UNTAET) was also tasked with organizing a judicial system in the new state. As part of this process, UNTAET decided that the District Court in Dili would have sole jurisdiction over particularly serious crimes committed during Indonesia's violent withdrawal in 1999, and subsequently established specific Special Panels for Serious Crimes within the Dili court system. (8) Although other tribunals have since been established --in partnership with the UN or regional bodies--these ad hoc international and then hybrid tribunals represent a particular stage in the development of international criminal justice mechanisms.

There was an important shift from the ICTY and ICTR, established in quick succession in 1993 and 1994 respectively, to the hybrid mechanisms that followed them. One of the grounds on which the ICTR in particular was criticized, was that it was too remote from the affected victim population it was supposed to serve, limiting the extent to which Rwandans could attend the trials to observe the judicial process. (9) This argument took on increasing prominence at the ICTY as well once the violence in the former Yugoslavia had diminished, and seemingly with it the justification for an externally located court. While not making it impossible for these tribunals to play a role in the process of national reconciliation, the distance was seen to limit their effectiveness in this regard. The high cost of these international tribunals was also leading to donor fatigue. (10) Accordingly, the new wave of hybrid tribunals came into being to respond to some of these concerns about the existing ad hoc courts. They were designed to be closer to, and better connected with, the local population, as well as cheaper. Accordingly, Suzannah Linton characterized these hybrid tribunals as the "latest 'must have' accessory in transition". (11)

The tendency to hold trials for mass atrocity crimes in countries other than where they were committed has been referred to by Amy Ross as the "externalization of justice" or a "spatial fix". (12) The decision to locate a tribunal in the affected country has significant potential implications for the role it will play in that society and in the local judiciary, particularly as these tribunals are often tasked with lofty goals such as promoting reconciliation and developing the rule of law. The hybrid courts of Cambodia, East Timor and Sierra Leone are then manifestations of this "externalization reversed" in that they are...