Book Review: Robben on Hinton, ’The Justice Facade: Trials of Transition in Cambodia’

Alexander Laban Hinton. The Justice Facade: Trials of Transition in Cambodia. Oxford: Oxford University Press, 2018. Illustrations, tables. xii + 282 pp. $34.95 (paper), ISBN 978-0-19-882095-6; $110.00 (cloth), ISBN 978-0-19-882094-9.

Reviewed by Antonius Robben (Utrecht University)
Published on H-Genocide (July, 2020)
Commissioned by Ugur Ümit Üngör (NIOD: Institute for War, Holocaust, and Genocide Studies)

“If a wound doesn’t hurt, don’t jab it with a stick,” commented a villager skeptical about international efforts to hold Khmer Rouge leaders accountable for Cambodia’s genocide. Between 1975 and 1979, their regime had executed, and worked, starved, and tortured to death around two million people. The proverb contrasts sharply with the assumption of global justice that their accountability will also heal a society deeply affected by the massive violence. The treatment may be painful, but it will prevent the wound from festering. The prescribed cure was a tribunal of national and foreign judges, prosecutors, and lawyers. Justice was to be served, symbolic reparations made, and democracy introduced. The hybrid court, officially called the Extraordinary Chambers in the Courts of Cambodia (ECCC), was established in 2003 as a harbinger of justice and human rights to a backward country, meanwhile ignoring the transitional steps already undertaken between 1979 and 2003. It was a manifestation of what Kathryn Sikkink has called “the justice cascade,” namely, the global implementation of human rights laws and treaties, and the creation of truth commissions and criminal courts. This transitional justice paradigm finds its origins in the Nuremberg and Tokyo trials after World War II, and spread across the world after the pathbreaking Argentine truth commission on disappeared persons of 1983-84. Heads of state accused of gross human rights violations were to be held accountable, and a peaceful transition from authoritarianism to liberal democracy would be accomplished. However, transitional justice is more complex and unruly, as Alexander Laban Hinton demonstrates in his superb book, The Justice Facade: Trials of Transition in Cambodia. Hinton shows convincingly that the justice cascade is a utopian imaginary based on a pretense of global justice and the belief in a social evolutionary advancement from backwardness to progress. This model is a facade, argues Hinton, that masks people’s on-the-ground lived experiences of transitional justice decrees and measures.

The book’s introduction gives a sustained critique of the transitional justice imaginary and explains the author’s phenomenological approach. This imaginary of progressive time, and the restorative passage from trauma to healing and closure, clashed in Cambodia with the prevailing Buddhist belief of body and cosmos as interminable cycles of death and rebirth. Based on extensive ethnographic fieldwork, Hinton analyzes the practices, discourses, and lived experiences of Cambodians working at nongovernmental organizations (NGOs) and the international tribunal, and civilians participating as civil parties in trials against Khmer Rouge defendants, one of which was Duch, the commandant of the Tuol Sleng prison, about whom Hinton wrote the masterful study Man or Monster? The Trial of a Khmer Rouge Torturer (2016).

Civil parties became disillusioned with the hybrid court. They had envisioned their testimonies as verbal exchanges with the perpetrators, had made paintings of atrocious scenes to appease the spirits of the dead, and had wanted to show the physical scars of torture but the judges preferred photos instead. The court reduced these representations of suffering to legal evidence. Furthermore, the emotional narratives given by Cambodians were considered less valuable than the structured testimonies by foreigners that resembled the court’s legal speech. Hinton emphasizes that the inattention to translation is the principal shortcoming of international tribunals. He is not referring to simple word-for-word translations from global to local terms but to people’s different cultural understandings of human rights concepts and the court’s procedures and pursuit of justice. Hinton does not dismiss transitional justice initiatives as deceptive but wants to demonstrate that the blindfold of Lady Justice symbolizes a court that fails to see and weigh the emotions and lived experiences of the people concerned.

Cambodians distinguish between legal and karmic justice. Karma is a person’s current state of being, as determined by good and bad deeds in the past, which influences a future reincarnation. One survivor of Tuol Sleng prison remarked that in a legal sense he was innocent of the charges raised against him by his captors, but he wondered whether bad deeds had led to his imprisonment and mistreatment. Karma is central to the Buddhist-Cambodian notion of justice. Some victims stated that the ECCC trials were irrelevant because perpetrators would only upon reincarnation suffer the karmic consequences of their horrendous deeds, while others argued that the court sentence was already a karmic consequence.

The emphasis on deeds, rather than personhood, has far-reaching implications for what Cambodians understand by perpetratorhood. An ordinary torturer is not a bad person per se but a person who acted badly. This understanding blurs the distinction between perpetrators and victims because the latter may wonder if their predicament was not caused by immoral acts. Victim-survivors may therefore vacillate between feelings of pity and revenge toward perpetrators—sometimes forgiving them and sometimes not. Hinton demonstrates convincingly the gap between the court’s public representation of transitional justice in terms of accountability and reconciliation and the ways people see the trials as ceremonies to appease the spirits of the dead, hear perpetrators admit to their wrongdoing, and acknowledge the testifier’s victimhood.

The transitional justice imaginary conceives of the court as a place of emotional release and breaking the silence, which will bring healing and reconciliation. Cambodians believe, however, that victims and perpetrators do not achieve reconciliation by speaking out and asking for forgiveness but through silence and subtle nonverbal cues. If survivors accept a perpetrator’s apology, then they may anger the spirits of the dead victims. If they refuse the apology, then they violate the Buddhist belief to do good by forgiving. The alternative is to maintain a non-reconciled silence and let go of anger and revenge. These dilemmas stand at odds with the win-or-lose reality of a court of law.

The Justice Facade is required reading for scholars and practitioners of transitional justice. It shows persuasively how hybrid courts present a front stage justice of progress: due process and accountability that do not resonate with the beliefs, emotions, and lived experiences of survivors and perpetrators. Turning a blind eye to the back stages of transitional justice will only lead to an impoverished understanding and a wanting helping hand.