The Challenges of Victim Participation in the Extraordinary Chambers in the Courts of Cambodia - par Justine TILLIER

In January I had the chance to attend a forum on victim participation in Case 002 of the Extraordinary Chambers in the Courts of Cambodia (ECCC). The aim of the forum was to enable victims from the province of Kampot to meet their lawyers and prepare their files for the hearing of Case 002. The Victims Support Section (VSS) organized the forum. The VSS was established to support the ECCC by assisting victims who want to participate in proceedings. The VSS processes complaints and applications by victims who seek to exercise their right to participate. It is the contact point between the ECCC, the victims and their representatives. Amongst international courts, the ECCC is unique, in the sense that the participation of victims is central. Other international tribunals, such as the International Criminal Court for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR), do not make the participation of victims as integral to the process as the ECCC. Victim participation in Cambodia is innovative and ambitious. However, it is arduous to implement for two key reasons: Firstly, there are a huge number of victims of the Khmer Rouge; and secondly, proceedings must be prosecuted in a timely manner, due to ages of the accused. In this note, I will address the issues surrounding the process of victim participation at the ECCC. In 2010 the ECCC altered its internal rules to increase victim participation. These reforms were made for two main reasons: Firstly, the scope of trials at the ECCC is increasing. The tribunal’s first trial was that of Comrade Duch, former director of the S-21 prison. Duch was convicted to 35 years of jail. However, he was tried alone, and victim participation was limited. In the Duch verdict, victims reparations were addressed as follows: « The Chamber declares all Civil Parties listed in paragraphs 645 and 650 to have suffered harm as a direct consequence of the crimes for which KAING Guek Eav has been convicted. (…) The Chamber shall compile all statements of apology and acknowledgments of responsibility made by KAING Guek Eav during the course of the trial. This compilation shall be posted on the ECCC’s official website within 14 days of the date of this judgement becoming final. It rejects all other Civil Party claims. » Civil Parties and NGOs were disappointed with the judgement because of the limited scope for reparations. Secondly, the case currently before the tribunal, Case 002, involves four accused. As a consequence, the case is complex and includes more Civil Parties. For these reasons the ECCC altered its internal rules in 2010 to give more power to Civil Parties with regard to reparations, and reformed the Victims Support Section. The Duch verdict exposed limitations in the way the ECCC deals with reparations. Civil Parties were dissatisfied with the reparations they received; they were largely symbolic, and the ECCC lacked the resources to make substantial reparations. Some limitations remain even with the 2010 reforms. The ECCC still prevents victims from seeking monetary compensation and limits reparations awards to collective and moral reparations. However, contrary to the initial internal rules, reparations will not be limited to orders to publish the judgement at the convicted person's expense, orders to fund a non profit activity or service intended to benefit victims or other comparable forms or reparation. New rules will apply to Case 002. The Trial Chamber may still only award « collective and moral reparations » , however the Trial Chamber now has the authority to order or endorse programs to benefit civil parties, such programs to be implemented by the Victims Support Section in cooperation with governmental or non governmental organizations. It gives the Trial Chamber the right to order memorial sites, educational programs, health centers for victims or any appropriate collective reparations. These projects can be implemented with the VSS support and can be funded by NGOs, ECCC fundraising activities, donor contributions or community contributions. The VSS produces guidelines which must be followed after the ECCC concludes its mandate, to ensure follow-through with reparations orders. This ‘non-judicial’ process aims to satisfy victims beyond Civil Parties. However reparations remain mainly symbolic due to the tremendous number of victims across the country. This new process of reparations can potentially benefit a large number of victims, and while its success relies on the work of the VSS and co-lead lawyers, good will will not be enough. The question of fund raising remains crucial. The responsible for the crimes will not pay the bill, and the process requires significant funding. In an informal interview, Im Sophea, Outreach coordinator of the Victims Support Section, expressed to me his concern about how these funds will be raised. It is too early to judge this new system of victim participation. However, it is already clear that there is a lack of money. The tribunal has received more than 2000 applications from individuals wishing to become Civil Parties and thus far 1059 have been accepted. Given this tremendous number of Civil Parties, it is going to be difficult for them to reach an agreement between themselves. Who is going to testify in front of the court? Which individuals have the most significant stories for the ECCC? It will be extremely delicate to make Civil Parties understand that their personal story will not be related during the trial. During the forum I noticed that some Civil Parties were disappointed by the ECCC verdict in the Duch Case. They did not consider that the 35 years sentence was enough, and would like the death penalty for the most reprehensible of the crimes. The question of revenge remains in many victims' minds, and it is difficult to reconcile justice and national reconciliation. Case 002 has not even started but the people working for the tribunal already know that it will be a complicated case. It will not be possible to make everybody happy.

Justine Tillier Master OIG/ONG Institut d'Etudes Politiques de Grenoble