IADR Research Paper - Jonathan Tan

Jonathan Tan Yong Jin ©
Class of 2014
International Alternative Dispute Resolution Research Paper – For Reference Only
Airing Dirty Linen
3,999 Words
Class of 2014
Airing Dirty Linen
“Men are gold. Women are white linen.”

- Cambodian proverb1
1. Sexual Violence: A Little Known Fact
On 17 April 1975, the Khmer Rouge marched into Phnom Penh, renaming Cambodia as Democratic
Kampuchea. In its zeal to forge an ultra-Marxist agrarian utopia, the Khmer Rouge was far from
democratic. Between 1975 and 1979, 1.7 million Cambodians were purged – starved, overworked,
tortured and summarily executed.2 However, it’s a little known fact that many Cambodian women
were subject to sexual violence by the Khmer Rouge, ranging from rape, mutilation of genitalia to
forced marriages.3 Although the guns have fallen silent, the victims’ silence subsists. This is primarily
attributable to the grave social stigmatisation of victims of sexual violence in Cambodia. “Men are
gold, women are white linen”, reads a Cambodian proverb. 4 After being sexually defiled, a woman is
irreversibly stained and worthless, her dignity brought into disrepute, unredeemable. Thus, few
victims dare to ‘air dirty linen’.
This past of sexual violence by the Khmer Rouge must be uncovered and acknowledged. As Professor
Menkel-Meadow notes, the past is the cornerstone of justice5, regardless of the theory of justice one
subscribes to. The past provides the basis for ascribing culpability and punishment (retributive
justice) or fomenting reconciliation and forgiveness (restorative justice). This resonates with
Cambodians’ aspirations, as gleaned from a “stakeholder assessment”. 6 In a comprehensive
Cambodian population-based survey by the Berkeley Human Rights Centre (“Berkley Survey”)7, 43%
of respondents perceived justice as establishing the history of atrocities, 85.3% of respondents
thought it necessary to uncover what happened during the Khmer Rouge regime, 64.3% felt they
couldn’t move on to reconciliation without knowledge of their violent past. However, nearly half
(45%) didn’t know which mechanism would be appropriate to unearth the past.
In this regard, this paper seeks to design Transitional Justice Mechanisms (“TJMs”) to help
Cambodians unearth the past, particularly the sexual violence by the Khmer Rouge. Part 2 posits that
TJMs must be “bespoke”, and in particular, “victim-sensitive”. Using the criteria, this paper evaluates
the design and practice of TJMs in unearthing this past of sexual violence, beginning with the
incumbent TJMs: the Extraordinary Chambers of the Courts of Cambodia (Part 3), followed by
Cambodia’s unofficial truth commission – the Centre for Social Development (Part 4). Drawing on
lessons from TJMs in Cambodia and other post-conflict societies, Part 5 proposes a TJM to better
unearth the stories of women stained by sexual defilement by the Khmer Rouge.
1
Kasumi Nakagawa, Gender-Based Violence during the Khmer Rouge Regime. Stories of Survivors from the Democratic
Kampuchea (1975-1979) (Phnom Penh, Cambodia: June 2007), p. 1.
2
See David P. Chandler, The Tragedy of Cambodian History (New Haven: Yale University Press, 1991).
3
See Anderson, Katrina, Turning Reconciliation on Its Head: Responding to Sexual Violence under the Khmer Rouge, Seattle
Journal for Social Justice: Vol. 3: Issue 2, Article 30, p. 791 and 800.
4
See Kasumi Nakagawa, supra note 1, p. 12.
5
Menkel-Meadow, Remembrance of Things Past? The Relationship of Past to Future in Pursuing Justice in Mediation, 5
Cardozo J. Conflict Resolution 97 (2005), p. 104.
6
See generally, Bordone, Dispute Systems Design: An Introduction, Harvard Negotiation L.Rev. 2008 Symposium, p. 8.
7
Berkeley Human Rights Centre, So We Will Never Forget – A population-based Survey based on Attitudes about Social
Reconstruction and the ECC (Berkeley, January 2009), p.27.
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2. “Bespoke” and “Victim-sensitive” - The Twin Criteria
To unearth Cambodia’s past of sexual violence, TJMs should satisfy the following twin criteria:
First, TJMs must be, as Ramji-Nogales states, “bespoke”8, viz the source, procedure and substance of
the TJM must be tailored to the circumstances of the society it serves, by incorporating local moral
traditions, perceptions of local populations, and participation of traditional leaders who hold moral
authority.9 To Ramji-Nogales, “bespoke” characteristics are necessary for the TJM to be recognised
by the local population as authoritative such that there would be voluntary compliance with its
decisions, viz ‘sociological legitimacy’, which can be gauged via “stakeholder assessments” such as
population-based surveys and interviews. 10 This enables norms posited by the TJMs to be
“internalised” by the local population.11 Thus, the design of TJMs to uncover Cambodia’s violent past
must be tailored to the circumstances and perceptions of Cambodian society. Only then, will they be
viewed as legitimate by Cambodians. And only then, will their accounts of Cambodia’s violent past
be accepted by Cambodians.
Ramji-Nogales also adds that to attain legitimacy in the eyes of as many stakeholders as possible, the
interests and participation of all stakeholders should be incorporated as far as possible, with
vulnerable stakeholders being prioritised.12 However, “bespoke” TJM should speak not only to
stakeholders’ ‘interests’, viz , objectives they seek to achieve via the TJM, but also their
‘vulnerabilities’, viz concerns about their safety and well-being. Lack of a due regard to the
stakeholders’ vulnerabilities may unduly chill their participation or worse, re-traumatize them in the
process. Due regard to stakeholder vulnerabilities, especially victims’ vulnerabilities, is key to
uncovering Cambodia’s violent past, which has been generally inhibited by three vulnerabilities. First,
Cambodians are generally reticent in discussing in public about their violent past. This is indicated in
the Berkeley Survey, where only 50% of respondents expressed willingness do so at a public hearing
or court.13 Second, being neighbours with the perpetrators, victims fear that naming perpetrators
may risk reprisal and damaging key social networks. 14 In addition, Cambodia’s past of sexual
defilement has remained a little known fact primarily due to the grave social stigmatisation of
victims of sexual violence.15 Thus, as a second criterion, TJMs to unearth Cambodia’s past of sexual
defilement must also be “victim-sensitive”, viz sensitive to the vulnerabilities of victims and there
should be safeguards in place to protect their safety and well-being.
Using the twin criteria of “bespoke” and “victim-sensitivity”, this paper proceeds to evaluate the
design and practice of incumbent TJMs, beginning with the incumbent TJM – the ECCC.
8
Ramji-Nogales, Designing Bespoke Transitional Justice: A Pluralist Process Approach (Fall 2010) Michigan Journal of
International Law [Vol. 32:1], p. 3.
9
Ibid., p. 61.
10
Ibid., p. 3.
11
Ibid., p. 12.
12
Ibid., p. 23.
13
Berkeley Survey, supra note 7, p. 27.
14
Anderson, supra note 3, p. 801.
15 15
“Men are gold, women are white linen”, reads a Cambodian proverb. After being sexually defiled, a woman is
irreversibly stained and worthless, her dignity brought into disrepute, unredeemable. Thus, few victims dared to ‘air dirty
linen’. See Kasumi Nakagawa, supra note 1, p. 12.
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3. ECCC – Trial and Error
The Extraordinary Chambers of the Courts of Cambodia (“ECCC”) was established in 2006 under the
auspices of the United Nations and the Cambodian government, to prosecute “senior leaders of
Democratic Kampuchea and those most responsible for crimes”16 under the Khmer Rouge regime.
In theory, the ECCC ticks all the boxes as a ‘bespoke’ TJM. First, there’s majority local ownership in
the administration of justice, which should enable the ECCC to attain great legitimacy in the eyes of
Cambodians. The ECCC is a hybrid TJM situated in Cambodia’s capital city of Phnom Penh, with
“mixed” tribunals comprising a one-seat majority of Cambodian judges17 applying an admixture of
Cambodian penal law and international humanitarian law18.
Second, the ECCC facilitates unrivalled victim participation, exceeding what the International
Criminal Court provides. Notably, “participation” is a protean term with a spectrum of meanings.
Sherry Arnstein highlights this in her Ladder of Citizen Participation reproduced below: 19
Power Control Decision-making power is shared with participants.20
Delegated Power
Partnership
Tokenism Placation Participation is restricted to being consulted on or
Consultation informed of decisions. Placation enables greater
Information input and influence, but power-holders aren’t obliged
to consider participants views.21
Non-Participation Therapy Participation is manipulated into a “public relations
Manipulation vehicle by power-holders” because persons are
“placed on rubber stamp advisory committees” to
show popular support.22
At the ECCC, the level of victim participation may be what Arnstein would classify as “Control” under
the rubric of “power”. Under Rule 23bis of the ECCC’s Internal Rules, anyone who suffered physical,
psychological or material harm as a direct consequence of the crimes perpetrated by the accused is
a “victim” and may apply to become a “Civil Party” to the proceedings.23 “Civil parties” enjoy a
delectable menu of rights, including questioning witnesses and the accused, producing evidence and
requesting the court to take measures to respect their safety, dignity and privacy during their
participation in proceedings24. In contrast, in proceedings before the International Criminal Court,
victim participation is limited to “consultation”. It’s extremely limited and lies at the court’s sole
discretion - a victim may present her observations only if her “personal interests are affected”, at
“stages of the proceedings determined by the Court to be appropriate”, and only if her observations
are deemed by the Court as relevant to the issues.25
16
ECCC Statute, Article 1.
17
18
19
Arnstein, A Ladder of Citizen Participation in the USA, 57 J. Royal Town Planning Institute, 176 at p. 177.
20
Ibid.
21
Ibid.
22
Ibid.
23
ECCC Internal Rules (Rev. 8), Rule 23 bis.
24
ECCC Internal Rules (Rev. 8), Rule 90(2) and Rule 29.
25
Rome Statute of the International Criminal Court, Article 68(3).
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In practice, however, the ECCC fails the twin criteria of “bespoke” and “victim-sensitivity”.
First, the ECCC’s fealty to international criminal law standards of rigorous due process in favour of
the accused has left victims disenfranchised. This evinces Ramji-Nogales’ generalisation that “strict
emphasis on procedural due process intrinsic to international criminal law, while not inherently
inappropriate in addressing mass crimes, limits the ability to speak to local populations”.26 In
upholding the due process right of the accused to confront his accusers, the ECCC left victims open
to re-victimisation by their perpetrators who cast doubt on their identity as a “victim”. In Case 001,
when Ly Hor, a Civil Party, testified against Kaing Guek Eav (aka “Duch”), the commander of the
notorious S-21 prison where 15,000 people perished, Duch retaliated by doubting whether Ly Hor
was truly a “victim”. 27
Second, to save judicial time & secure conviction, the ECCC has drastically circumscribed victim
participation in ECCC proceedings. Arguably, Civil Parties’ participation has been reduced by the
ECCC to what Arnstein would classify as mere “Consultation” under the rubric of “Tokenism”. In
reality, Civil Parties have no voice, no say, unless they are called by the Prosecution.28 Even then, few
Civil Parties will be afforded the opportunity to testify. In Case 001, of the 75 Cambodian Civil Parties,
only 17 (23%) could testify.29
Even when victims gave testimony, the ECCC has been insensitive to victims. Mahdev Mohan, a
lawyer representing “Civil Parties”, recalls one instance, where the President of ECCC Trial Chamber,
Nil Nonn, became so annoyed at the tearful witnesses that he reiterated that “the Chamber was
already vigilant about keeping track of the time used for questions” and instructed victims to quickly
console themselves because “details might be forgotten if they expressed emotion in the court-
room”. 30 This judicial insensitivity is cold comfort and traumatising for the victim who has, by
applying to be a “Civil Party” to testify against her perpetrators, lifted her veil of anonymity and
staked her reputation and safety on the line.
Understandably, the ECCC’s restriction of victim participation is a pragmatic approach given the
ballooning numbers of Civil Parties, and dwindling funds and time for ECCC proceedings. In Case 002,
the ECCC was confronted with a deluge of 4000 Cambodians applying to be Civil Parties. 31
Nevertheless, the ECCC’s failure to live up to expectations has resulted in its loss of legitimacy in the
eyes of Cambodians. As Marie Aman cautions, for the law to have expressive value, “the message
understood, rather than the message intended, is critical”.32 The message Cambodians understood is
tellingly revealed in the Berkeley Survey, which was conducted when Case 001 was underway. Only
14% of respondents viewed the trial as an appropriate mechanism to establish the past33.
26
Ramji-Nogales, supra note 8, p. 9.
27
Mohan, Erasing the Non-Judicial Narrative: Victim Testimonies at the Khmer Rouge Tribunal, 2 Jindal Global L.R. 37, p. 9.
28
Ibid.
29
Phuong N. Pham, Victim Participation and the Trial of Duch at the Extraordinary Chambers in the Courts of Cambodia,
Journal of Human Rights Practice Vol.3, No.3 (2011) 264, at p. 275.
30
Mohan, supra note 27, p. 8.
31
Ibid., p. 12.
32
Diane Marie Aman, Message as Medium in Sierra Leone, (2001) 7 International Law Students’ Association JICL 237, 238.
33
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4. CSD– Cambodia’s Unofficial Truth and Reconciliation Commission
Established in 1996 and based in Phnom Penh, the Centre for Social Development (CSD) is a non-
governmental organisation aimed at promoting democratic values and improving Cambodians’
quality of life.34 CSD convenes public forums entitled “Justice and National Reconciliation” six times
each year. 35 Each forum occupies one whole day and accommodates approximately fifty
participants.36 Forums begin with keynote speeches by guest speakers such as court officials,
followed by question-and-answer sessions where participants raise queries and share experiences. 37
The CSD’s virtue is that it’s “bespoke” by catering to victim’s interests. First, unlike the South African
Truth and Reconciliation Commission or the ECCC, CSD doesn’t truncate, exclude or conflate victims’
individual narratives. The South African Truth and Reconciliation Commission came under fire for
conflating victims’ individual narratives into one monolithic collective memory. Victims couldn’t
speak their minds in their depositions, and statement forms didn’t allocate space for victims to
highlight relationships to give greater meaning to their personal histories.38 Unlike the ECCC, at CSD’s
forums, the focus is shifted from the accused to the victims primarily, and the village community-at-
large. Since there are only fifty participants at each forum with each forum lasts the whole day
(starting at 7.30am and concluding by 4pm)39, there’s ample time for many participants to share
their individual narratives and thoughts on national reconciliation. Also, in this informal process,
victims needn’t comply with the strict formal requirements of court testimony, which would be
imposed in ECCC proceedings. Second, as each CSD forum is convened in the home province of each
forum’s participants, more members of the community are able to participate. In contrast, the ECCC
being based only in Phnom Penh, isn’t easily accessible to many Cambodians living in rural villages.
Third, CSD’s forums are inclusive. Unlike the ECCC40, a person needn’t be a “victim” or “perpetrator”
before she can participate in CSD’s forums. Thus, at CSD’s public forums, victims can be and often
are accompanied by their families and friends who provide emotional support. Therefore, CSD is
increasingly regarded by Cambodians as Cambodia’s unofficial truth and reconciliation commission.41
Notably, these positive aspects of the CSD seemingly mirror the success of Timor Leste’s Community
Reconciliation Process (TLCRP), a public community justice hearing for perpetrators of minor
offences. Absence of court testimony’s formal requirements facilitated intense catharsis by victims.42
Also, victims in TLCRP’s hearings were “afforded a place of honour” and derived much-needed
emotional support with the company of family and friends.43 Moreover, holding TLCRP hearings in
their home community facilitated participation by both victims and community members. 44
34
For more details, see CSD’s website: www.csdcambodia.org/public_forum.htm
35
Vinita Ramani, Social Memory and Civil Society in Post-Conflict Cambodia, p. 7.
36
Ibid.
37
Ibid.
38
39
Vinita Ramani, supra note 35, p. 7.
40
ECCC Internal Rules (Rev. 8), Rule 23 bis.
41
42
Commission for Reception, Truth, and Reconciliation in East Timor, Chega! Final Report of the Commission for Reception,
Truth, and Reconciliation in East Timor (Part 9), p. 44. cited in Ramji-Nogales, supra note 8, p. 57.
43
Ibid.
44
Ibid.
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However, CSD has two shortcomings. First, CSD’s forums see little participation from ex-Khmer
Rouge cadre. As they have “unique knowledge of the conflict”45, their absence hampers efforts to
gain a fuller picture of the past. The South African Truth and Reconciliation Commission managed to
garner perpetrator participation because perpetrators had to confess to their misdeeds truthfully to
obtain an amnesty, or else they faced prosecution.46 Unlike the South African Commission, the CSD
isn’t sanctioned by the state and is thus unlikely to provide such incentives and disincentives for
participation by perpetrators.
Second, CSD’s forums aren’t sensitive to all types of victims. Vinita Ramani observes that CSD’s
public forums are “cathartic, public events that allow for explosive sessions of victim testimony”.47
However, Cambodians are generally reticent in discussing in public about their torment under the
Khmer Rouge.48 Thus, the “public” nature of CSD forums suits some victims but deters others from
participating. The need for privacy is particularly important for victims of sexual violence, because in
Cambodia, there’s grave social stigmatisation of victims of sexual violence49.
5. The New ECCC♥
To better uncover the past tainted by sexual defilement by the Khmer Rouge, this paper proposes a
non-state-sanctioned truth and reconciliation commission – Embracing Cambodians’ Collective
Catharsis (“ECCC♥”).
The ECCC♥ will be primarily based on a traditional Cambodian dispute resolution, Somroh-Somruel,
albeit with modifications. Somroh-Somruel resembles mediation.50 If a dispute arises, the parties
would approach their village chief to assist them in reaching agreement.51 The village chief would
often recruit the assistance of other persons occupying positions of traditional moral authority, such
as village elders or monks and nuns. 52 Somroh-Somruel is the dominant dispute resolution
mechanism for Cambodians, especially in resolving land disputes, neighbourhood disputes and cases
of domestic violence. 53 According to the Berkeley Survey, respondents reported that 83% of their
disputes were resolved by the village chief or commune council.54 Litigation is shunned primarily
because it’s expensive and corrupt, with disputants having to bribe the judges.55 In contrast, there
are no fees payable to the village chief in resolving these disputes.56 This resonates with Ramji-
Nogales’ observation that the “judicial system may be viewed as politicized and/or corrupt, and
45
46
Gibson, James L., Overcoming Apartheid: Can Truth Reconcile a Divided Nation? 6 (2006)
47
48
49
“Men are gold, women are white linen”, reads a Cambodian proverb. After being sexually defiled, a woman is irreversibly
stained and worthless, her dignity brought into disrepute, unredeemable. See Kasumi Nakagawa, supra note 1, p. 12.
50
Ian Ramage, Somroh-Somruel & Violence against Women,(Domrei Research & Consulting, 2008) p. 29.
51
Ibid.
52
Ibid.
53
Ibid.
54
Berkeley Survey, supra note 7, p.33. Similarly, a United Nations Development Program report estimates village chiefs
manage about 54,776 disputes per annum. See Pathways to Justice: Access to Justice with a focus on Poor, Women, and
Indigenous People (2005) (Phnom Penh: UNDP Cambodia and Ministry of Justice), p. 110.
55
This is confirmed in the Berkeley Survey, where 81.6% of respondents agreed that going to court is too expensive, 60.7%
opined that going to court means paying bribes to the judge. See Berkeley Survey, supra note 7, p.33.
56
Ian Ramage, supra note 50, p. 29.
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moral authority may reside elsewhere”.57 Therefore, since most villagers are familiar with and trust
Somroh-Somruel, adapting Somroh-Somruel in designing the ECCC♥ would arguably enhance the
ECCC♥‘s legitimacy in the eyes of Cambodians and encourage more numbers and types of
stakeholders to participate, including victims, perpetrators and the rest of the village community,
hence facilitating efforts to uncover a fuller picture of the past of sexual violence. In this regard, the
ECCC’s design set out below.
ECCC♥ – Somroh-Somruel Writ Large: Since Somroh-Somruel has been the traditional recourse for
Cambodian women to resolve cases of domestic violence and Cambodians are largely satisfied with
it58, Somroh-Somruel can arguably be extended to uncover the past of sexual violence.
However, some objections may be raised. First, Somroh-Somruel is designed to resolve only small-
scale domestic disputes such as domestic violence cases. Somroh-Somruel isn’t designed to address
the large-scale atrocities committed by the Khmer Rouge, especially acts of sexual violence59.
However, while this is a valid concern, two points should be noted. First, the ECCC♥’s objective isn’t
primarily to hold perpetrators accountable, but rather it’s to uncover the past of sexual violence.
Second, whether the ECCC♥ would be perceived as a legitimate “truth-seeking” mechanism should
be verified against “stakeholder assessments”60 such as population-based surveys. The second
objection to using Somroh-Somruel to uncover the past of sexual violence raises a fundamental point
– mediation is never appropriate for cases of domestic or sexual violence.61 First, offenders may use
this informal process to diminish guilt, trivialise their crimes, or shift blame to victims, thus
subjecting victims to re-victimisation.62 Second, socio-cultural norms may only emphasize male
dominance and ascribe blame to victims.63 The second reason is particularly relevant because in
Cambodia, there’s grave social stigmatisation of victims of sexual violence. “Men are gold, women
are white linen”, reads a Cambodian proverb.64 After being sexually defiled, a woman is irreversibly
stained and worthless, her dignity unredeemable.
These are valid concerns which demand that the ECCC♥ must also be “victim-sensitive”. There must
be safeguards in place to ensure the victim’s safety and well-being, to which this paper now turns.
Pre-Mediation: Drawing on lessons from family mediation in cases of domestic violence65, it’s
recommended that prior to the ECCC♥ being convened, all participants should ideally be screened
via written questionnaires or oral interviews. The purpose of screening is twofold. First, screening
identifies which participant was subject to any abuse (psychological or physical) by the Khmer Rouge.
Such cases should be highlighted for the mediator to be aware of their vulnerabilities during the
course of mediation. As there’s grave social stigmatisation of victims of sexual violence in
57
58
59
60
See Bordone, supra note 6, p. 8.
61
Gerry Johnstone, Handbook of Restorative Justice (Willan Publishing, 2007), p. 159. See also Janet Rifkin, Mediation from
a Feminist Perspective: Promise & Problems, 2 Law and Inequality Journal, 21, p. 30
62
Ibid.
63
Ibid.
64
Kasumi Nakagawa, supra note 1, p. 12.
65
Susan Landrum, The Ongoing Debate about Mediation in the Context of Domestic Violence: A Call For Empirical Studies of
Mediation Effectiveness, Cardozo J. of Conflict Resolution (Vol. 12:425) 426, p. 448
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Cambodia,66 the interviewer may have to probe deeper.67 Second, the participants could indicate
their preferences as to which persons they are comfortable having as mediators, and to encourage
victims of sexual violence to step forward and share their past, greater weight could be given to their
preferences. As Ramji-Nogales posits, although the interests and participation of all stakeholders
should be incorporated as far as possible, the preferences of vulnerable stakeholders should be
prioritised. 68
Mediator: For ECCC♥ to be “bespoke”, the mediator should be a traditional leader who holds moral
authority69, such as the village chief who is the mediator in Somroh-Somruel. To villagers, the village
chief is “a neak thom (big person) commanding respect”70. Buddhist leaders, such as monks and
nuns may also interpose as mediator. Cambodians still share a deep connection with Buddhism and
Buddhist leaders. 95% of Cambodians are Buddhists71 and after the demise of the Khmer Rouge
regime, villagers immediately rebuilt the devastated temples and Buddhist pagodas became
memorial sites commemorating those purged by the Khmer Rouge.72 Nevertheless, a “stakeholder
assessment”73 should be included in the screening as not all individuals or Buddhist leaders would be
of equal legitimacy in the eyes of participants and Cambodians in general.
Nature of Mediation and Mediator’s role: Generally, Somroh-Somruel maybe what Ellen Waldman
would classify as a “norm-educating” model74 of mediation. In Somroh-Somruel, the village chief
refers the parties to “relevant social and legal norms” including a basic knowledge of the law, human
rights principles and Buddhist precepts, but parties maintain autonomy in deciding whether the
agreement should conform to these norms.75 However, it’s unclear if the mediation style employed
in Somroh-Somruel would be transposed unchanged into the ECCC♥. As recognised by Riskin, a
mediator’s style maybe affected by several dynamics, including personal beliefs and mediation’s
subject matter. 76 The “norm-educating” mediator in Somroh-Somruel may become “norm-
advocating” in the ECCC♥. For example, the mediator, in referring to Buddhist precepts, may foist
the “forgiveness” norm, exerting undue pressure in imploring the victim to simply forgive her
perpetrator and move on. This raises Professor Menkel-Meadow’s concern that mediation may be
too forward-looking and insufficiently focussed on remembering the past. Nevertheless, as the
ECCC♥’s mediators such as village chiefs and elders and nuns, are generally elders who survived the
Khmer Rouge atrocities, they are, to Avishai Margalit, “moral witnesses”77 and as Professor Menkel-
Meadow suggests, they “would not be totally comfortable with a process that asked them only to
‘think of the children’ or to ‘move forward’ in the spirit of national peace and reconciliation”. 78
66
Kasumi Nakagawa, supra note 1, p. 12.
67
Susan Landrum, supra note 62, p. 448
68
69
Ibid., p. 61.
70
Ebihara, Intervillage, Intertown and Village-City Relations in Cambodia, Annals of the New York Academy of Sciences
(1971), p 360.
71
Berkeley Survey, supra note 5, p.29.
72
73
See Bordone, supra note 6, p. 8.
74
See Ellen Waldman, Identifying the Role of Social Norms in Mediation: A Multiple Model Approach, 48 Hastings LJ 703.
75
Ian Ramage, Somroh-Somruel & Violence against Women, (Domrei Research & Consulting, 2008) p. 29.
76
Leonard Riskin, Decision-making in Mediation: New Old Grid and the New Grid System, 79 Notre Dame LR 1.
77
See Avishai Margalit, The Ethics of Memory (2002), cited in Menkel-Meadow, supra note 3, p. 105.
78
Menkel-Meadow, supra note 4, p. 106.
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Further, insufficiently focussing on the past would not only run counter to the ECCC’s quest to
uncover a fuller picture of the past, but also contradict a fundamental Buddhist precept also
employed in Somroh-Somruel, truth-seeking79. This is encapsulated in the following Dharmic verse:
“There are two mistakes one can make along the road to truth – not going all the way, and not
starting”.80
Public and/or Private: Mindful of the virtues of a process pluralism approach to transitional justice81,
ECCC♥ will primarily be a public forum, with the option of simultaneously convening caucuses. As
Sarah Cobbs posits, in a public forum, recounting elevates the individual’s violation to that of the
collective, and if recounting the violation generates strategies to prevent future violations and
morality norms, the collective becomes a “connected whole”, a “sacred space” is formed.82 Thus, the
ECCC♥’s public forum, in uncovering Cambodia’s violent past, provides a “sacred space” for
Cambodians to become a “connected whole”. Nevertheless, all participants should have an option of
convening caucuses with a mediator. The reason for caucusing is twofold. First, victims of sexual
violence fear that publicly discussing their plight would put their reputation83 and safety at risk84.
Thus caucusing assuages such victims’ fears of reprisal and stigmatisation, creating a safe sanctuary
for them to recount their past. Second, forum discussions may develop into “cathartic, public events
that allow for explosive sessions of victim testimony”85. Hence caucusing provides a safe space for
venting of intense emotion in a setting where the intensity won’t poison the atmosphere of the joint
session.86 However, while caucusing caters to victims’ vulnerabilities, one objection may be raised –
it may foment distrust between the victims and perpetrators who participate in the ECCC♥ forum,
thus undermining the understanding necessary to sustain the process of reconciliation.87 Ultimately,
a calibrated approach is needed because an absolutely ‘no-caucus’ model gravely diminishes the
ECCC♥’s ability to be sensitive to victim vulnerabilities.
Who speaks first: Generally, victims should be afforded the opportunity to speak first. By speaking
first, victims are arguably empowered. Victims set out the primary narrative, beginning by defining
the harm caused by the perpetrator and how it has affected her.88 Thus, the perpetrator would
usually have to respond to the primary narrative using the characters, sequence of events and moral
or social interpretive framework identical to the primary narrative.89 Hence, the perpetrator would
have to “defend” himself by justifying or denying statements based on the primary narrative, and in
so doing, his secondary (bad) position is reinforced and the dominance of the primary narrative in
79
80
Dharma, broadly defined, refers to body of teachings expounded by Buddha. Regrettably, the pin citation for this quote
could not be obtained.
81
82
Sara Cobb, Creating Sacred Space: Toward a Second Generation Dispute Resolution Practice, Fordham Urban L (Vol.XXVIII)
1017, p. 1031.
83
“Men are gold, women are white linen”, reads a Cambodian proverb. After being sexually defiled, a woman is irreversibly
stained and worthless, her dignity brought into disrepute, unredeemable. See Kasumi Nakagawa, supra note 1, p. 12.
84
85
86
Hoffman David A., Mediation and the Art of Shuttle Diplomacy, Negotiation Journal (July 2011) 264, p. 265.
87
See generally, Friedman, G. and Himmelstein, J. , Challenging Conflict: Mediation through Understanding (2008) Chicago:
American Bar Association.
88
Umbreit, M., Guidelines for Victim-Sensitive Victim Offender Mediation: Restorative Justice through Dialogue, p. 10.
89
Harper, C., Mediator as Peacemaker: The Case for Activist Transformative-Narrative Mediation, Journal of Dispute
Resolution, Issue 2 Vol. 2006, No. 2, p. 603.
Class of 2014
the mediation is affirmed.90 Thus, enabling victims to speak first reduces the risk of victims being re-
victimised or re-traumatized by the perpetrator.
Timing: While Somroh-Somruel is convened only if a villager refers the matter to the village chief,
each ECCC♥ will convene regularly on a bi-monthly basis. Like CSD’s public forums, ECCC♥ forum
should last throughout the whole day, starting at 7.30am and concluding by 4pm. Unlike the ECCC
which conflates and excludes individual narratives to save judicial time, the bi-monthly regularity
and day-long duration of the ECCC♥ forums provides ample time for participants to share their
individual narratives.
Participants: Just like CSD’s public forums, participation at the ECCC♥ should be inclusive, allowing
victims to be accompanied by their families and friends who provide emotional support for victims
as they recount their painful past. Nevertheless, the number of participants at each forum should be
limited to a number that affords ample time for most participants to share their individual narratives.
6. Conclusion
It’s a little known fact that many Cambodian women were subject to sexual violence by the Khmer
Rouge. However, there’s no one-size-fits-all blueprint of a TJM that can be transplanted across all
post-conflict societies. 91 Each conflict has different dynamics, each society – different aspirations,
traditional dispute processes and notions of justice, each stakeholder – different needs and
vulnerabilities. 92 In this regard, the twin criteria of “bespoke” and “victim-sensitivity” is merely a
guide in the process pluralist’s quest to design TJMs to better unearth the stories of women stained
by sexual defilement by the Khmer Rouge.
90
Ibid.
91
Ramji-Nogales, supra note 8, at 67
92
Ibid.

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Jonathan Tan Yong Jin ©

Airing Dirty Linen

Airing Dirty Linen

“Men are gold. Women are white linen.”

2. “Bespoke” and “Victim-sensitive” - The Twin Criteria

3. ECCC – Trial and Error

4. CSD– Cambodia’s Unofficial Truth and Reconciliation Commission

5. The New ECCC♥

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