Using International Criminal Law to Resist Transitional Justice

Abstract

An increasing body of literature focuses on negotiations of transitional justice, but not much has been written so far regarding contestations over its practices and the refusal of states and individuals to participate. Given the remaining legalistic dominance, this is particularly true regarding the field of international criminal law. Very little, if any, work in international criminal law engages with the topic of “resistance.” Departing from this gap in research, focusing on Cambodia and the Extraordinary Chambers in the Courts of Cambodia (ECCC), the objective of this article is to introduce, discuss, and analyze the “strategy of rupture”—as developed by the late French lawyer Jacques Vergès—and the ways in which this legal defense has been applied in practice at the ECCC in order to resist not only the Tribunal per se, but also the entire Cambodian transitional justice process and, by extension, the post–Cold War global liberal project.

The International Criminal Trial as a Site for Contesting Historical and Political Narratives: The Case of Dominic Ongwen

“…Inspired by this development, the field of international criminal law experienced an increased momentum in academic scholarship and in public debate (Baaz, 2015a, 2015b, 2015c; Baaz and Lilja, 2016; Schwöbel, 2014: 169–170). A large portion of the contemporary discussion regarding international criminal law is, however, somewhat limited and often focuses on the positive contribution of ICL to various projects of reconciliation and reconstruction of peace, justice, legality, fighting impunity and individual accountability.…”

Just another battleground: resisting courtroom historiography in the extraordinary chambers in the courts of Cambodia

“…It does, however, seek to point to the fact that the historical and political background surrounding the ECCC is very complex and holds several intertwined layers. There is, thus, not one, but several, ways of approaching the circumstances that exist in this nexus (see further Baaz 2015a, 2015c, Baaz and Lilja 2016.…”

“…See also Baaz and Lilja 2016, p. 150). Against this background, the ECCC can best be described as a 'hybrid'; as an 'extraordinary experiment in international law' (see further Baaz 2015a, 2015c, Baaz and Lilja 2016.…”

“…The creation of several International Criminal Tribunals (in for instance: Rwanda, Yugoslavia, Sierra Leone, Lebanon, and Timor-Leste) and the establishment of the International Criminal Court (ICC) in 2002 highlights a pivot in this absence of individual criminal responsibility. Inspired by this development, the field of international criminal law experienced an increased momentum in academic scholarship and in public debate (Baaz 2015a, 2015c, Baaz and Lilja 2016, Schwöbel 2014. A large portion of the contemporary discussion regarding international criminal law is, however, somewhat limited and focuses often on the positive contribution of international criminal law to various projects of reconciliation and reconstruction, on peace, justice, legality, fighting impunity and individual accountability.…”

“…Another possibility, however, is not to advocate for an 'alternative' approach, but rather to argue in favor of a consistent application of the existing approach. Even though Vergès, at least to a certain extent, draws on both these alternatives, his unique contribution lies in the application of a radical 'intra-legal' approach (Baaz and Lilja 2016, p. 147, Koskenniemi 2016, p. 191, Widell 2012. The first and most important step in the strategy of what can be labelled legal rupture, in contrast to moral rupture, is to identify and explicate violations of existing principles by displaying that they are applied selectively or inappropriately and that the prosecutor(s) and judges are (institutionally) biased, and, by extension, that the existing legal order is neither just nor legitimate.…”