 Phnom Penh (Cambodia), 25/02/2006. Villagers invited by the Documentation Centre of Cambodia (DC-Cam) visiting the Tuol Sleng Museum of Genocide with a view toward the opening of the tribunal established for the trial of former Khmer Rouge
© John Vink / Magnum
The Internal Rules of the Extraordinary Chambers in the Courts of Cambodia (ECCC) allow victims of the Khmer Rouge regime to “seek collective and moral reparations” (Rule 23). Therefore, these reparations cannot be individual or financial. However, the term “reparation”, as it is understood by people, is too often associated with a compensation of a financial nature. A Cambodian NGO, in response to that, set out to meet victims in order to look more closely at this vague notion and explain it, to make sure that victims do not nourish illusory hopes and start thinking together about realistic claims for reparation. At this stage of the procedure, many questions still remain unanswered on this principle of International Criminal Law, a procedure in its early days.
Preventing victims' disappointment
The information and debate campaign on the issue of compensations was launched in Phnom Penh on August 29th by the NGO for the defence of Human rights ADHOC. Other similar forums are said to be on the way in the provinces within the next few months.
Most of the 72 victims of Pol Pot's regime who came to attend the special day – and some of whom are already part of the civil parties in the ECCC – were already aware of the possibility for them to seek compensation from the tribunal, but did not know the particular nature of such reparations.
“Spontaneously and with one voice, victims asked for money to help their families, rebuild their derelict houses or pay for their children's studies”, In Kea, deputy head of ADHOC's counselling department, reported. “We emphasised the fact that the number of victims was far too important for every person to receive individual reparation.” Disappointment obviously showed on the faces of some, whereas others wondered about the meaning of the claim and did not understand why only a few cadres were brought to court.
In order to help them understand, the campaign volunteers gave several examples of reparations that other countries had resorted to: helping amputees in Sierra Leone, the opening of mass graves in Guatemala, etc. Little by little, tensions disappeared and ideas started springing up: the building of a memorial in every province of Cambodia, a public apology made by the accused, the creation of an annual Day for the commemoration of victims, the setting up of a psychological support programme for victims, the establishment of centres for widows and the elderly, or reimbursement of the costs involved in the participation of civil parties.
A few forms of reparations are provided in the ECCC Internal Rules : “an order to publish the judgement in any appropriate news or other media at the convicted person’s expense, an order to fund any non-profit activity or service that is intended for the benefit of Victims, or other appropriate and comparable forms of reparation”. These examples, as analysed by Ruben Carranza*, Senior Associate at the Reparations Unit and Asian branch of the ICTJ (International Centre for Transitional Justice) based in New York, “suggest some room for the court to design certain collective and symbolic forms of reparations that have material impact [...] or have a wider reach.”
“What matters is to avoid forgetting what happened. Once the legal mission is complete and the tribunal vanishes, the process of remembrance will have to be carried on” otherwise nobody will be there to remember victims, Andrew Dickie of the ECCC observation programme at ADHOC, points out.
Victims obsessed with what they lost
Yet, hours spent talking the matter through on August 29th were not enough. “One of the victims came to see me at the end of the day to tell me he would ask for US$5,000 in compensation for the murder of his wife under the Khmer Rouge regime. Some carefully proceeded to a valuation of what they lost... And others simply do not let go of the idea that they will obtain financial reparations and that is that. It is our job to try and moderate their position”, Nay Vanda, in charge of press relations at the NGO ADHOC, explains.
“In the case of Cambodia, the crimes that are presented date back to 30 years ago and many victims have since lived in poverty. It is difficult for them to isolate the violations that made them suffer during the Khmer Rouge regime, from the economic deprivation they have to go through today. This is why, very often, they will think about what they need in their present-day life”, Ruben Carranza explains in a telephone interview.
During the seminar, the stress was put on one phrase: “Do not have high expectations that are unlikely to be met!”. “We cannot blame victims for expecting too much, they suffered so much...”, Ruben Carranza observes, also pointing out victims' frustration on seeing that so many resources are spent to bring a few Khmer Rouge leaders to justice when only little money is made available for victims.
Another case is that of victims who suggest roads and hospitals be built and serve as reparation. “We had to show them that such measures pertained to governmental development missions and could not, in any way, be considered as reparation measures”, In Kea indicated.
“By nature, no reparation can really compensate for victims' sufferings or come up to all of their expectations, as varied as their profiles and personal history might be”, Ruben Carranza stresses.
The debate is now a matter of urgency
“Tackling this question now is of utmost importance. When the trial opens, people will closely look at the way it is held and once the verdict is pronounced, everyone will go home”, Nay Vanda insists. Those who took part in the August 29th forum do share these views, judging by the way they rushed through their lunch break in order to go back to the seminar and pick up the debate where they left it.
“The court concentrates on criminal procedure and does not have much time to spend on the question of reparations. Not that they do not want to, but they do not necessarily know how to manage that”, Ruben Carranza analyses. Some also put forward the idea that the ECCC should seek amici curiae (analyses made by experts who are not a party to a case) on that particular legal point.
However, consulting victims on the form of reparations they wish to receive is still very important, since “it can help understand what they can expect and what they can claim”, Ruben Carranza explains. “Therefore, their hopes will not be deceived”.
Limits of the reparations
“The Truth and Reconciliation Commission in South Africa was successful when it comes to the search for a transitional justice, but it failed in terms of victims' compensations, since the government only allocated reparations to the victims who came to testify, and let the others down...”, the expert sums up.
However, the ECCC, as decreed by the tribunal's Internal Rules, will only grant reparations to civil parties. “How will they use their mandate to implement these reparations beyond the victims who constituted themselves civil parties before the tribunal?, Ruben Carranza asks himself. To him, “there are potentially several ways in which the Court can make the right to reparations meaningful, for civil parties as well as for many other Cambodians who do have the means or possess the legal requirements to come before the court ”*.
Funding reparations: a tough question
The ECCC Internal Rules stipulate that reparations “shall be awarded against and be borne by the convicted persons”. This implies the confiscation of their personal property, the value of which cannot be assessed until the tribunal has found them guilty. But to the present day, only five persons have been charged and it is known that some of them do not have, or do not have any more resources, like the Ieng Sary-Ieng Thirith couple, who are said, according to local press, to have taken care of registering their belongings under the name of their children before their arrest.
Since the ECCC are an internationalised court created under an agreement between the Cambodian government and the United Nations, the “Basic principles and guidelines on the right to a remedy and reparation for victims of gross violations of international Human rights Law and serious violations of International Humanitarian Law”, as defined in a resolution adopted and proclaimed on December 16th 2005 by the United Nations General Assembly can be invoked. They stipulate that “States should endeavour to establish national programmes for reparation and other assistance to victims in the event that the parties liable for the harm suffered are unable or unwilling to meet their obligations”.
Nothing to this day has been clearly defined as to the question of financing reparations, which will emerge at the end of the trial before the Trial Chamber. If the convicted people are not solvent, then “other options will have to be explored, and this is a point on which we have to think about from now on”, Richard J. Rogers, deputy head of the tribunal's Defence Support Section, admits. Elsewhere, special funds have been set up and generally depend on donations or on the allocation of part of the state budget for the funding of reparations.
However, on account of the very nature of their jurisdiction “in the Courts of Cambodia”, the ECCC cannot order the state of Cambodia to carry out the reparations programme, Ruben Carranza points out, adding that they should however raise the question as to whether the Cambodian state should intervene and cover the costs of reparations. “The day the ECCC will cease their activity, if no reparations have been implemented, who will make sure they are? This should be on the tribunal's agenda!”, he pleads.
The ICTJ representative thus reckons there is still a lot to be done in favour of victims, in a world where western criminal justice patterns prevail and put the emphasis on the trial itself and punishment. According to him, it is there that the interest of the ECCC lies, especially with the first participation of victims in such a jurisdiction and the fact that, for the first time as well, the granting of reparations is already specified in the court's mandate: suing criminals but also allowing victims to seek reparations.
Challenges in the enforcement of reparations
“Granting reparations to victims is not a simple option but a legal obligation of the state”, Ruben Carranza insists. “In Timor-Leste, reparations had been decided but it is only today that the legislation for their implementation is voted...” Same scenario in Sierra Leone: “There is still a discrepancy between the decision of providing reparations to victims and the moment when they are indeed granted, between what was recommended and what is finally implemented.”
The expert adds that “while the Court’s jurisdiction has specific limits, it still has the potential, through its judgments and practice directives, to influence the implementation of reparations beyond its temporal mandate”[* ].
To ensure the implementation of decisions concerning reparations – which will be rendered by the Trial Chamber - “States should provide under their domestic laws effective mechanisms for the enforcement of reparation judgements ”, the UN advises in its Basic Principles on reparations.
There is no doubt that the ECCC Internal Rules will be subject to further changes, especially on Rule 23.
* Quotes taken from the article entitled "Imagining the possibilities for reparations in Cambodia", by Ruben Carranza, June 2008
Also on Ka-set
- Vann Nath, survivor of the Khmer Rouge S-21 prison, determined to stand up for remembrance (27-08-2008)
On the Internet
- "Reparations in theory and practice ", very interesting article, written under the direction of Lisa Magarell, head of the Reparations Programme at the International Centre for Transitional Justice (ICTJ)
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By Doris
By John Vink
By Doris