MEMORY IN THE PRESENT TENSE: History, Sovereignty, and the Return of the Past

Who controls the past controls the future. Who controls the present controls the past.

– George Orwell, 1984

If Part III examined the Extraordinary Chambers in the Courts of Cambodia’s (ECCC) institutional legacy and its imperfect success in producing an authoritative judicial record of crimes committed in Democratic Kampuchea, and Part IV considered what follows once such institutions recede, Part V turns to what lies beyond the courtroom: how memory, once dispersed, continues to operate in the present.

Memory is often discussed as though it concerns only the past. Yet its influence extends well beyond recollection. In societies that have experienced profound upheaval, the past rarely disappears entirely. Instead, it becomes embedded in institutions, family histories, educational systems, public commemorations, collective habits of thought, and individual psyches. As a result, memory does more than preserve experience. It helps shape perception itself, influencing how information is received, how events are interpreted, how competing explanations are evaluated, and how communities understand periods of tension, uncertainty, and change.

Memories may be personal and lived. They may also be inherited through schools, museums, archives, family stories, films, memorials, and public narratives. Both matter and shape the lens through which contemporary events are viewed. Continue reading “REFLECTIONS ON MASS ATROCITIES, HISTORICAL MEMORY, AND THE ECCC LEGACY: Cambodia – Past, Present, Future — Part V”

MEMORY AFTER DEMOCRATIC KAMPUCHEA: Museums, Narrative, and Cambodia’s Unfinished Reckoning

The struggle of man against power is the struggle of memory against forgetting.

– Milan Kundera

If Part III examined the Extraordinary Chambers in the Courts of Cambodia’s (ECCC) institutional legacy and the extent to which it imperfectly created an authoritative judicial record of some of the crimes committed during Democratic Kampuchea, Part IV begins from a different premise: not what the ECCC established, but what its closure reveals.

Once a tribunal ends, the record remains. The judgments remain. The archives remain. But the institutional force that produced them is no longer active. The process of adjudication ends. The process of interpretation does not. Continue reading “REFLECTIONS ON MASS ATROCITIES, HISTORICAL MEMORY, AND THE ECCC LEGACY: Cambodia – Past, Present, Future — Part IV”

BEYOND CONVICTIONS: The ECCC’s Enduring Legacy in Cambodia

Memory is not only a repository of the past, but a work of reconstruction.

– Paul Ricoeur

If Part II explored the relationship between memory, law, history, and interpretation, Part III now turns to the institution through which many of those tensions ultimately found expression in Cambodia: The Extraordinary Chambers in the Courts of Cambodia (ECCC).

The questions explored earlier do not remain abstract for long. Debates about genocide, crimes against humanity, historical responsibility, collective memory, and the meaning of Democratic Kampuchea eventually become concrete. They arrive in courtrooms. Once there, they change form, becoming questions of evidence, procedure, witness testimony, prosecutorial discretion, judicial reasoning, and legal judgment.

At that point, the issue is no longer simply what happened. It becomes a question of who has the authority to describe what happened, which narratives gain institutional legitimacy, and how legal conclusions gradually become embedded in the historical record. Continue reading “REFLECTIONS ON MASS ATROCITIES, HISTORICAL MEMORY, AND THE ECCC LEGACY: Cambodia – Past, Present, Future — Part III”

THE CRIME OF CRIMES: Law, Memory, And The Limits Of Genocide

No question is ever settled until it is settled right.

– Ella-Wheeler-Wilcox

Part I was about memory as lived experience. Part II is about memory as interpretation.

If Part I explored memory as something lived, inherited, and carried by individuals, Part II asks what happens when those memories enter institutions. Courts, tribunals, museums, textbooks, commissions, archives, and official narratives do not merely preserve memory. They organize it. They classify it. They assign categories and meanings to experiences that often resist easy definition. The transition from personal memory to institutional memory is therefore not merely a change of setting; it is a change in how the past is understood. Once that process begins, memory becomes structured, contested, and filtered through the categories available to the institutions interpreting it.

Nowhere is this process more evident than in Cambodia’s ongoing effort to understand Democratic Kampuchea. Continue reading “REFLECTIONS ON MASS ATROCITIES, HISTORICAL MEMORY, AND THE ECCC LEGACY: Cambodia – Past, Present, Future – Part II”

CAMBODIA: An Ongoing Love Affair

The past is never dead. It’s not even past.

– William Faulkner

There are places that enter your life quietly.

And then there are places that take hold of you completely.

Cambodia belongs firmly to the second category.

My attachment to the country did not arrive all at once. It emerged gradually – through late afternoons along the Tonlé Sap as light settled over Phnom Penh in muted gold; through monsoon rain gathering over the Mekong before finally breaking against corrugated roofs; through the strange stillness of roads that had once carried armies, refugees, and evacuation columns and now carried schoolchildren, market vendors, and motorbikes balancing entire families.

Long before I became involved with The Extraordinary Chambers in the Courts of Cambodia (“ECCC”), long before court filings, witness statements, and legal arguments came to define much of my professional life in Cambodia, the country had already begun its quiet work on me in ways I only came to understand years later. Continue reading “REFLECTIONS ON MASS ATROCITIES, HISTORICAL MEMORY, AND THE ECCC LEGACY: Cambodia – Past, Present, Future – Part I”

Rather than merely increasing the technocratic proficiencies of Cambodian legal professionals, the ECCC has instead modeled how to leverage such expertise to construct more convincing legal façades to provide cover for decision-making processes wholly determined by power and political interests. Importantly, key Cambodian lawyers and judges at the ECCC have done so by seizing on the ambiguous term “most responsible” in the Court’s constitutive documents, interpreting it in an inconsistent manner that conveniently conforms to the publicly stated views of the CPP, thereby borrowing a page from the CPP’s playbook of manipulating vague legal provisions. Not only has this produced incongruent outcomes in cases against similarly situated accused, but participating in the process has enhanced the capacity of relevant Cambodian legal actors who worked for the Court to more artfully engage in similar tactics domestically.

Randle C. DeFalco, Reassessing the Rule of Law Legacy of the Khmer Rouge Tribunal, 45 U. Pa. J. Int’l L 549, p. 560.

DeFalco’s conclusion is based on emotional reasoning masquerading for rational legal analysis. In failing to objectively assess the law, DeFalco displays a profound lack of appreciation of the basic tenets of the Rule of Law, including the principle of the presumption of innocence and the procedural system in place at the ECCC.

Michael G. Karnavas, A Response to Defalco’s: The Proper Interpretation of “Most Responsible” at the ECCC

Reading Randle C. DeFalco’s latest polemic on the legacy of the Extraordinary Chambers in the Courts of Cambodia (ECCC) – Reassessing the Rule of Law Legacy of the Khmer Rouge Tribunal – reminded me of Ronald Reagan’s famous quip “There you go again”. Reagan was responding to what he believed was a repeated misrepresentation of his position by President Jimmy Carter during a debate. Commenting on DeFalco’s 2014 article Cases 003 and 004 at the Khmer Rouge Tribunal: The Definition of “Most Responsible” Individuals According to International Criminal Law, I found his analysis wanting and his conclusions the product of a result-oriented approach. Ten years later DeFalco is at it again. Continue reading “MYOPICALLY “REASSESSING” THE ECCC’S LEGACY: Same Tune, Different Lyrics”