Contributing to a growing body of literature on the constitutive relationship between victims and international criminal law, Figuring Victims in International Criminal Justice engages in a critical analysis of the Extraordinary Chambers of Cambodia (ECCC). This unique court, designed to blend domestic and international criminal law, offers a distinct case to examine how international criminal law not only defines victims but also creates a particular idea of the victim. Elander explains how those who suffered under the Khmer Rouge emerged as individual and collective victims of newly defined crimes, and how international criminal justice develops through these definitions and representations.
Like other critical sociolegal scholars, Elander offers a cogent analysis of the contradictions inherent in prosecuting individuals for horrific acts. The Khmer Rouge is famous for mass killing, torture, forced marriage, and other atrocities. The group rose to power because of nearby wars, and stayed in power as the United Nations, the United States, and other international players supported the regime in order to thwart neighboring Vietnam. For decades, domestic and international advocates tried to raise awareness of the atrocities. Their efforts did not bear fruit until a reconfiguration of domestic and international politics as Vietnam helped establish a new Cambodian regime. Hoping to distinguish itself from the Khmer Rouge, Cambodia's new leadership wrote to ask United Nations for support prosecuting the former regime. “Victors justice” is alive and well, though here it is in the form of an international court.
These facts about the country's history, and court emergence, matter because they shape perceptions of the court, and international criminal law more generally. This court has suffered from ongoing concerns that it is a “show trial” for corrupt politicians hoping to consolidate their power in Cambodia. Elander suggests that these facts also matter because they shape the representation of victims in the court. Part of this representation has to do with who is technically considered a victim of the Khmer Rouge, as 90% of Cambodians self-identify as victims. But Elander is more interested in questions of representation from critical theory. She draws on Pitkin's theory of representation to contemplate who speaks on behalf of victims, how their representation creates a particular victim subject. She is particularly interested in Judith Butler's approach to identity as normative ideal rather than description.
Elander draws largely on Butler as she answers two main research questions: How do practices represent victims if and when it is subject formation, and how do they make the subject intelligible? Elander explains that she will answer this question of victim representation by looking at regulatory and discursive practices that make both victims and international criminal justice. The introductory theory section is well written and accessible for those less familiar with theories of representation. Her first substantive chapter on the establishment of the ECCC has useful information about the court, the country's history, and the dilemma of talking about the Khmer Rouge as exceptional. The writing is clear and concise, and Elander deftly shows the problem of using law to define and redress victims of mass atrocity.
The data driven chapters use documents and observations to explain the ways in which victims are made intelligible. First, Elander explains how the crime of forced marriage emerged and what it means to be defined a crime against humanity. Although individuals were forced to marry, it is the widespread nature of this practice and the fact that it was an explicit policy that makes it a crime against humanity. This approach concerns her because it focuses on the widespread and systematic nature of the actions rather than what humanity actually means. Later, Elander provides insights into how victims in the courtroom become visitors, participants, and testifiers, each relationship requiring representatives who speak on behalf of victims and shape particular narratives. In the final empirical chapter, Elander recounts how the images at the famed prison site Tuol Sleng tell multiple stories about who counts as a victim and who counts as a perpetrator. The meaning of these photos also changes depending on the places, both buildings and countries, where they are shown.
At the end of the book, Elander reminds us that the goal is to explain how representation occurs in the court, and how the indeterminacy of victim representation exemplifies that indeterminacy of international criminal justice more broadly. Early on, Elander claims that she wants to avoid more standard analysis of victims in international criminal law, distinguishing her work from studies that offer policy prescriptions or presupposes the existence of victims that have their own opinions. However, it is difficult to write critically about this topic, which has such clear normative consequences, and not elaborate on the repercussions for individuals and collectivities that continue to suffer, let alone critique the overall project of international criminal justice without a more definitive perspective. While the main point is useful to think about—how victims and international criminal justice co-constitute one another—it is easy to lose the “so what” question in the critical analysis.
Elander is a gifted narrator, and her explanations of Cambodia's history and court practices are interspersed with ethnographic accounts, self-referential accounts of her analytic process, and applications of critical theory to her data. This narrative approach makes for a compelling read, though it also makes the overall take aways harder to grasp. Simply put, it seems obvious that courts represent victims in a multifaceted way. Drawing from an anthropological perspective of “in comparison to what?” one might question whether there could be a singular way of representing victims? Are not victims, like all legal categories, inherently multifaceted? The short conclusion does not return to help untangle the introductory theory, or clarify what the analysis tells us more generally about international criminal law.
Sociolegal scholars will appreciate the application of critical theory to this important case, especially the role of law in shaping subjects and the role of subjects in shaping law. In particular, Elander's explanation of the hypocrisy behind the court's creation highlights what law and society scholars know well about how law reflects and reinforces existing power structures. Likewise, scholars of critical theory and international law, particularly those hoping to broaden research on international criminal justice away from more standard analyses of its efficacy or history, will appreciate this study as part of a growing body of work on the politics behind the creation and implementation of new legal institutions.
