This post was co-authored with Ian Patel.
Kony 2012 was a worldwide viral phenomenon that brought the workings of international criminal justice to public attention like never before. Yet the film is silent with regard as to what will happen after the arrest of Joseph Kony. High-level advocacy and outrage from the international community resulting from such a campaign may be instrumental in ensuring that perpetrators of the worst human rights abuses face justice, but what contribution can those who have suffered these abuses make? There is ongoing debate as to what extent victims should participate in any subsequent accountability process. Since many proceedings rely on the testimony and participation of victims as a primary source of evidence, and indirectly as embodiments of national suffering, victims of human rights violations are at the very heart of international criminal justice. However, their involvement has often been limited to a passive role as witnesses.
So what role can victims play in this context? With the Arab Spring still ringing out in the minds of countless bloggers and political commentators, the very notion of the victim has been frequently translated (perhaps temporarily) into a notion of the Protester. Armed with social media and spurred by organised resistance, victims themselves - you might be forgiven for thinking - were now taking an active role in directing the course of justice. But the danger here is to standardise our notion of the role of the victim in the search for accountability and justice and to assume that active protest is the natural and even inevitable response to being a victim. And more importantly, we must ask what is actually being done, away from social media advocacy and international political commentary, to benefit victims of mass atrocities themselves?
If Kony is brought to justice at the International Criminal Court, there is a framework already established for the participation of victims. This is a new concept at an international level and as such is subject to ongiong revisions and changes. A lot can be learnt about the practicalities of this type of mechanism from the war crimes tribunal now taking place in Cambodia, providing long overdue accountability for crimes of the Khmer Rouge. At this tribunal (the Extraordinary Chambers in the Courts of Cambodia or ECCC) in Phnom Penh, the second case of four top-level Khmer Rouge leaders has begun. This follows the trial of Duch, the head of the notorious S-21 prison, who at his appeal in February 2012 was sentenced to life in prison.
Since its establishment in 2006, the ECCC has revealed more starkly than any other the underside of international criminal justice - its complications, machinations and duplicities. Most notably, there have been allegations of political interference in the work of the ECCC, specifically concerning government opposition to any prosecutions after the current case. This has led to well-publicised disputes and international concern over the progress of cases 003 and 004. The ECCC has even had its own controversy regarding social media with a furore earlier this year over the reserve co-investigating judge's Twitter account. It transpired that he had made a number of critical tweets regarding the work of the ECCC and cases 003/4. This provided the Royal Government of Cambodia with the opportunity to stall his appointment (after the resignation of the then co-investigating judge) by questioning his independence due to his use of social media, even though the power to appoint him ultimately rests with the UN.
It is worth pausing to note that 3,864 victims of the Khmer Rouge are participating as Civil Parties in the second case of the tribunal, all of whom have been waiting over thirty years for justice. What, we might ask, do Khmer Rouge victims think about these high-flown legal squabbles? In contrast to the connectedness and online savvy of many protesters in other countries, the majority of Civil Parties live in rural areas with little access to national television, let alone the internet. In theory, a participating victim at the ECCC - with the status of a 'Civil Party' - is more enfranchised procedurally than any other victim in the history of international tribunals for war crimes. However, while Civil Parties were originally entitled to the same rights as other parties to the proceedings -these unprecedented privileges were radically stripped down after the first case. These changes were made to make the second trial more efficient but it remains to be seen whether they will result in a meaningful legacy to the victims of the Khmer Rouge.
The Victims Support Section at the ECCC is designed to provide for Civil Parties' basic needs, however it has been severely under-funded, and this has significantly compromised the ability of the ECCC to support victims throughout the process. Without donations to the Victims Support Section from the German government and the support of Cambodia-based NGOs, Civil Parties would be faring far worse. There is also concern as to what extent Civil Parties have been educated on the workings of the proceedings. Our forthcoming research, alongside studies on the first case, suggest that many Civil Parties are unaware of what they are entitled to, of the legal process and their role within it and of what might be realistic for them to expect in terms of sentencing, reparations, and legal support. If Civil Parties participate without this full understanding, realistic expectations or adequate support, this could potentially result in a negative experience rather than the positive, empowered contribution that has been hoped for.
The complexities of the Cambodian experience offer an important lens through which to approach the recent debates surrounding Kony 2012, and highlight the importance of not simply advocating for generalised notions of justice. If we are concerned about the ultimate impact on victims and the broader population, we must seek forms of justice that are locally appropriate and actionable, at the same time as providing the infrastructure and support to deliver them. Whilst the endemic interest in Kony 2012 in America and Europe reveals the extent to which accountability and justice for human rights violations has been absorbed into the global political imagination, the simple fact remains that international support and involvement means very little without an awareness of the problems of implementing justice on the ground. As we move forward in 2012 and beyond, advocacy must not only make vague calls for justice, but promote ways in which accountability can be made to work in the particularities of each case and to embrace the meaningful participation of victims and local communities within these processes.
About the co-author:
Ian Patel is a Postdoctoral Research Fellow at the International State Crime Initiative, The Dickson Poon School of Law, King's College London.