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The fifteenth day of the tenth month marks one of the most important days on the Cambodian (Khmer) calendar. On this day, the people of Cambodia mark the traditional festival of Pchum Ben, or Ancestors’ Day.

In the full day of activities that begin before dawn, devotees gather at temples all over the country. They bring along rice, which they offer to their dead ancestors, whose unappeased spirits are believed to linger on earth. Monks - a widely-respected class in the Cambodian society - are offered sumptuous spreads. Prayers are made, ancient rituals are conducted.

So deep-rooted is the Pchum Ben festival that it has withstood years of turmoil and political change. The festival remains a key religious occasion for Cambodians. By celebrating Pchum Ben, Cambodians believe they can reduce the suffering of the spirits of their ancestors.

Therapeutic goals

Now, in the view of Mahdev Mohan, the commemoration of indigenous rituals and practices such as Pchum Ben can serve as a platform for Cambodians today to achieve some form of healing for the trauma and pain they suffered under the Khmer Rouge regime three decades ago. Specifically, rituals like Pchum Ben, art by local artists, and local theatre are non-legal medium for Cambodians to seek some kind of peace, therapy, and closure from the horrors. Mohan believes that these media should be acknowledged and supported by the ongoing legal proceedings, which claim to serve the same end – healing and restoration.

Interestingly, Mohan is not a sociologist or anthropologist. Rather, he is an assistant professor at SMU’s School of Law. Referring to the use of Pchum Ben and indigenous practices in the legal arena, he notes: “They are non-legal, but they can have a deeper significance for the people.”

“Legal justice is often too ‘thin’ to support therapeutic goals,” wrote Mohan in his article “The Paradox of Victim-Centrism: Victim Participation at the Khmer Rouge Tribunal”, which will be published in the upcoming issue of the International Criminal Law Review. The article, Mohan’s Master’s thesis at Stanford Law School, won him the 2009 Carl Mason Franklin Prize for the most distinguished scholarly writing in the field of international law.

Mohan, who teaches public international law at SMU, is the first Singaporean to win this prize since its inception in 1965. His ongoing research on the perceptions of genocide has also clinched him a Richard S. Goldsmith Fellows Research Grant, awarded by the Stanford Center on International Conflict and Negotiation.

For more than half a year, Mohan has represented victims at the Extraordinary Chambers in the Courts of Cambodia (ECCC), a hybrid criminal tribunal jointly set up by the United Nations and the Cambodian government. The aim of the ECCC is to try former Khmer Rouge leaders (who are now in their 70s and 80s) for masterminding war crimes, crimes against humanity and genocide.

While other notorious regimes around the world have committed genocide, in terms of sheer proportion, the ultra-Maoist Khmer Rouge, led by the infamous Pol Pot, Ieng Sary and Khieu Samphan, stands out - for massacring nearly a quarter of their own people in the four years that they held power.

Mohan points out that the ECCC is the latest in a series of tribunals formed to try war criminals, starting from the Nazis at Nuremberg, to, most recently, warlords from Congo, Uganda, Sudan, put on trial at the International Criminal Court (ICC) situated in The Hague, Netherlands.

“ECCC affiliates claim that one of the major innovations of the ECCC is the enhanced recognition of victims in its proceedings,” he wrote. However, he concludes that while tribunals like the ECCC aim to heal its victims, they do not always succeed in this regard.

Beyond the legal arena

Indeed, thirty years on, victims’ scars and trauma remain. Mohan proposes that the ECCC embrace a new, non-legalistic victimology. “Instead of seeking to provide for both retributive and restorative justice within ECCC’s procedures or even a complementary mechanism, we should look to fora beyond the legal ‘arena’ in order to deliver restorative justice to Cambodian victims. To do so even modestly, restorative justice must be based on pre-existing values and communicated in a way that resonates amongst victims”.

“I argue that victim-centrism’s therapeutic goals would be better served by a new victimology rooted in inherently local conceptions of story-telling, art and ritual that avoid universalised narratives and deploy extra-legal ideas about mass atrocity in Cambodia.

“Given the attention that the ECCC has attracted, the hopes pinned on its performance, and the alternatives that could be foreclosed by exclusive reliance on law, it is critical for the ECCC to re-evaluate its goals,” he added.

Disconnect between victims and court

To be sure, rice, joss sticks, monks, prayers and other objects and actions associated with a Pchum Ben, are not what one would traditionally associate with the law, much less being advocated as solution by legal practitioners or scholars. However, according to Mohan, international law is itself a type of ritual to victims and involving local, non-legal rituals and practices are critical if the international community genuinely wants to help the Cambodian victims.

From his personal involvement, he sees a disconnect between the expectations and the reality of trial hearings: what the victims want to do, and expect to get, is significantly different from that of the tribunal. “Definitely, in any situation – and not just about the court process -- there are always differences between the promise and the reality. However, I didn’t expect the contrast to be so stark,” he said.

“The interesting thing about this process is that it is supposed to give the victims’ rights, and the victims come to court thinking, ‘I am not just a witness, I am coming here to tell my story, but I also have a right to counsel, the right to ask for reparation, and I even have the right to ask questions of the accused persons’,” he wrote.

Yet, from his ringside position as victims’ lawyer, Mohan notes that the ECCC judges and lawyers already have in mind the role they expect victims to play: just like in any other court, which is, they just show up when summoned, answer questions they are asked, and hold their tongue when they are told to.

Victims were expected to “toe the line”, and to not go off-tangent when telling their story in court. In extreme cases, some of the victims at the stand have been silenced by ECCC judges who were not equipped with dealing with victims of mass crime and their desires for expression.

In a situation like this, “the law, as a form of power, seeks reverence through subordination and, if it fails to deliver, engenders frustration and disenchantment,” Mohan wrote.

Survivors as subjects, not objects

Of course, the ECCC did not set out to undermine and hurt the victims even more with its processes. One reason offered by Mohan for why this happened is the uncharted territories that the ECCC has had to navigate.

Legal proceedings usually take reference from prior cases. To date, there have very few successful examples of victims’ participation at international courts. The hearings at the ICC, on-going at The Hague, suffer from a similar predicament.

This has resulted in a curious situation where the ICC and the ECCC refer to each other. Thus, the concept of victim participation “is so new that a judgment that came out of the ICC last week will be discussed and implemented this week by the Cambodian tribunal. It’s not like they are have precedent that’s got five, ten years of practice and rigorous inquiry behind it; they are literally forming it as the trials go along, on the fly, and this has proved problematic,” said Mohan.

Mohan wants to turn this encumbered thought process on its head. His argument is this: if the ECCC really wants to help the victims, it should be upfront, and be quick to manage their expectations, not make promises it cannot honour. Victims need to be told what the trial can achieve, and what it cannot. For example, some victims might expect monetary compensation, but unfortunately, this is just not going to happen.

That is why he mooted this ‘unorthodox’ idea. Obviously, the thought of using non-legal measures is something that the ECCC will hesitate to consider or use.

“The whole idea is to open our minds, as lawyers, especially in situations like this, where you must be inter-disciplinary, and look beyond the pages of case law and statutes. You are dealing with people, survivors of mass crime who deserve that respect,” he said.

Meanwhile, it seems like the ECCC, to the delight of Mohan, is indeed planning to accept his recommendations. The court is going to create a register, to collect all the victims’ stories and document and archive them. Next, there has been talk that a large-scale Pchum Ben will be organised in the near future, where community leaders, monks, the victims and their families will be in attendance. Perhaps this is an indication that the ECCC is finally prepared to explore non-legal methods of helping the victims heal.

Mohan hopes the impact of such a non-legal action that came about in a legal context, will serve a wider purpose. “For the people of Cambodia, this may help uncover new truths, and acknowledge the importance of their cultural and artistic practices. For the rest of us who are engaged in the field of international law, this is a sign that it is high-time that we start looking beyond the four corners of legal rules when dealing with genocide victims.”

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