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Abstract
Victims of the Khmer Rouge play a unique role at the Extraordinary Chambers in the Courts of Cambodia (ECCC) since they have broad participatory rights. However, as the initial trial progressed, a number of changes were made to the framework of victim participation to deal with emerging problems. Although these amendments seemed to curtail some rights, they were also meant to strengthen victim participation and ensure a more efficient trial process. This led to the introduction of restorative justice measures, a lead co-lawyer system and a single submission for reparations. The reasons they were introduced and how they have been implemented so far in the first year of the second trial are the focus here. Subsequently, the impact of the lack of resources and attention given to victim support at the ECCC, from its inception, and the crucial contribution of civil society organizations in filling this gap and carrying out myriad activities at all stages of the participation process are examined. With the well-publicized controversies at the ECCC such as alleged political interference, the participation of victims has the potential to be the lasting legacy of the Court, but any success in this area owes a great debt to Cambodian civil society.
Acknowledgements
This research was carried out with the support of the Nuffield Foundation (Grant SGS/39236) and the University of East London Promising Researcher grant. The author thanks Ian Patel for his invaluable research assistance and Leang Sok for all his support and assistance during fieldwork.
Notes
1. The Internal Rules consolidate applicable Cambodian procedure for proceedings before the ECCC and adopt additional rules where the existing procedure does not deal with a particular matter, or if there is uncertainty regarding its interpretation, application or consistency vis-à-vis international standards.
2. For a full history, see Thomas Hammarberg’s paper, ‘Efforts to establish a tribunal against the Khmer Rouge leaders: discussions between the Cambodian Government and the UN’, presented at a seminar organized by SIDA, Stockholm, 29 May 2001 and John D. Ciociari’s ‘History and Politics Behind the Khmer Rouge Trials’ in On Trial: The Khmer Rouge Accountability Process, ed. John D. Ciorciari and Anne Heindel (Phnom Penh: DC-Cam, 2009) 33–84.
3. With this original sentence, Duch would have actually served 19 more years in total. He was in pre-trial detention for 11 years and time served was credited to his sentence. He received a further five years off his term because of his cooperation with the court.
4. The defence asked for an acquittal, the prosecution asked for a maximum sentence of life in prison reduced to 45 years and civil parties challenged their claims as inadmissible and asked for more expansive reparations.
5. Since writing, Ieng Sary passed away during the trial on 13th March 2013.
6. In February 2011, the ECCC Plenary adopted Internal Rule 89ter on Severance, which allowed the separation of proceedings in relation to one or several accused and concerning part or the entirety of the charged contained in an indictment.
7. Rule 12 was amended in February 2010 and September 2010.
8. The ECCC acknowledged this problem as the result of externally funded legal teams as well as confusion resulting from lack of distinct interests between the groups and funding constraints (see ECCC, Citation2010c, p. 38, Citation2012a, p. 37).
9. The need for expediency in the trial is particularly important considering the age of the accused.
10. The author attended this hearing and subsequent information is taken from author’s own notes.
11. After the approved budget of April 2010, the budget had to be revised and the VSS organizational structure was reorganized and four posts were abolished (ECCC, Citation2011a, p. 15).
12. The OSJI chaired an NGO coordination meeting, focused on general outreach. They asked the ECCC Public Affairs Section to chair and they started doing this in April 2010 and hold regular meeting where the information is very general.
There is also an NGO update meeting on general court progress, held by OSJI every two months looking at issues such as advocacy and legacy.
13. I was told two different anecdotes by NGOs. In the first, a high-level official at the ECCC did not know that complaint forms existed and in the second, a very high-level UN official visiting from New York was unaware of civil parties and the possibility of reparations. In both situations, these individuals were informed by the NGO staff I was interviewing of the procedures.
14. General advocacy regarding the establishment of the ECCC had been ongoing for several years during the long negotiations around the tribunal.
15. The Renakse petitions were collected in 1983 and were statements of crimes suffered under the Khmer Rouge. Farina So and Sarah Thomas, Article on the Victim Participation Project. Retrieved from http://www.d.dccam.org/Projects/Tribunal_Response_Team/Victim_Participation/Article_Victim_Participation_Project.htm
16. Initially the ECCC did not have any standard forms and ADHOC devised its own.
17. One applicant was declared inadmissible and 3 withdrew, so 90 civil parties participated in case 001, with 66 having their status confirmed in the judgement.
18. A further difficulty was that the civil party application deadline in Case 002 was brought forward in November 2009 to 15 days after notification of conclusion of the judicial investigation, (estimated at the time to be the end of 2009), which severely reduced the time of submission compared to Case 001.
19. In contrast to Case 002 when civil party status is decided at the pre-trial stage, in Case 001 civil parties did not find out until the day of the verdict. The defence challenged 24 of the civil parties on grounds of lack of kinship with a victim and lack of documentation. The Judges ruled in favour of the defence on this issue, and so only 66 civil parties were included in the final judgement. This was obviously highly disappointing to the 24 that had participated through the whole trial, only to be denied the status of civil parties at the end.
20. In addition, in May 2010, ASF stated that it was willing to represent the civil parties not yet represented.
21. The deadline set by the co-investigating judges for submission of all civil party applications for Case 002.