ECCC Reparations

This blog is designed to serve as a repository of analyses, news reports and press releases related to the issue of RERAPATIONS within the framework of the Extraordinary Chambers in Courts of Cambodia (ECCC), a.k.a. the Khmer Rouge Tribunal.

Thursday, May 31, 2007

Millions of Complaints Against the KR Leaders to Be Filed

The Co-prosecutors To Verify More Than One Million Legal Complaints Against the Khmer Rouge Leaders After 1979


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Phnom Penh: The office of prosecutors of the Khmer Rouge Tribunal ‘might’ accept more than one million legal complaints filed against the Khmer Rouge leaders since the State of Kampuchea to verify.

“We might accept those more than one million legal complaints to check. No law forbids the acceptance,” claimed Khmer Rouge Tribunal’s Co-prosecutor Chea Leang on May 25, 2007.

The co-prosecutor pointed out that there were, however, some difficulties since more than one million people who had made those legal complaints were not sure to be all alive until now and whether or not they still wanted to be the plaintiffs.

“If those legal complaints are submitted to us, we will check and subpoena those who signed in the motion-liked complaints to question about the truth and take legal actions,” she said.

Youk Chhang, director of the Documentation Center of Cambodia (DC-Cam), said May 25, 2007 that the DC-Cam was keeping the legal complaints made by 1,100,000 victims of the Khmer Rouge regime since the State of Kampuchea.

The director of the DC-Cam is optimistic that if the Khmer Rouge Tribunal uses these legal complaints, it will be very useful. It will allow more participation and provide justice and national reconciliation to Cambodia.

Concerning legal procedures in submitting the complaints from the victims, Co-prosecutor Chea Leang said that at the moment everyone could file their legal complaints without any specific form. In those complaints, the victims describe what they saw and have gone through during the regime.

The co-prosecutor said that there had not been many private complaints so far, and that but a lot of victims became plaintiffs through being witnesses.

“At the moment, we are also waiting for the internal rules since in those internal rules or internal regulations, some articles also state about the legal procedures in filing the complaint, and if the internal rules are successful, we will announce to the public so that people will understand more about it," said Chea Leang.

(Informal Translation)
Extracted from Rasmei Kampuchea, Vol.15, #4295, Sunday 27-Monday 28, May 2007

Tuesday, May 29, 2007

Reparations for Victims of Genocide, Crimes Against Humanity and War Crimes: Systems in Place and Systems in the Making

REPARATIONS FOR VICTIMS OF GENOCIDE, CRIMES AGAINST HUMANITY AND WAR
CRIMES: SYSTEMS IN PLACE AND SYSTEMS IN THE MAKING
Background Paper Prepared for the Conference organised by the
Clemens Nathan Research Centre in collaboration with REDRESS
and with the Support of the Carnegie Foundation of the Hague
The Peace Palace, The Hague, The Netherlands
1-2 March 2007
“In honouring the victims' right to benefit from remedies and
reparation, the international community keeps faith with the
plight of victims, survivors and future human generations,
and reaffirms the international legal principles of
accountability, justice and the rule of law,
Convinced that, in adopting a victim-oriented perspective,
the international community affirms its human solidarity with
victims of violations of international law, including violations
of international human rights law and international
humanitarian law, as well as with humanity at large…”1
Genocide, crimes against humanity and war crimes are recognised worldwide as the most
abhorrent of crimes; and the perpetrators understood as enemies of all mankind (hostis humani).
It has long been recognised that the perpetrators of such crimes must be held to account and that
the institutions, organisations and governments that enabled the abuses to occur should not
escape liability. International law recognises the obligation to provide reparations for
international wrongful acts.2 This has been repeatedly reaffirmed in the jurisprudence of national
and international courts, is reflected in a range of international treaty texts and has recently
been confirmed by the United Nations with the adoption by the General Assembly of the Basic
1
Preamble, Basic Principles and Guidelines on the Right to a Remedy and Reparations for Gross Violation of International Human
Rights Law and Serious Violations of International Humanitarian Law, adopted by the UN General Assembly on 16th December 2005.
2 See Permanent Court of Arbitration, Chorzow Factory Case (Ger. V. Pol.), (1928) P.C.I.J., Sr. A, No.17, at 47 (September 13); Article
1 of the draft Articles on State Responsibility adopted by the International Law Commission in 2001: “Every internationally wrongful
act of a State entails the international responsibility of that State. (UN Doc. A/CN.4/L.602/Rev.1, 26 July 2001” (ILC draft Articles on
State Responsibility).
2
Principles and Guidelines on the Right to a Remedy and Reparations for Gross Violation of
International Human Rights Law and Serious Violations of International Humanitarian Law in
December 2005.
The Conference
The emphasis of this Conference is not on ‘whether’ there is a right to reparation, and if so
‘what’ this right entails. The Conference recognises that there is already a sound legal basis for
the right to reparation as well as detailed expositions of the different forms that reparation may
take.
Instead, this Conference focuses on the effective implementation of the right to reparation. It
will explore the practice of governments, national and international courts and commissions to
consider questions of application, process, implementation and enforcement. It will consider the
practice from the perspective of the beneficiaries - survivors and their communities; and from
the perspective of the policy makers and implementers who are tasked with resolving the range
of technical and procedural challenges in bringing to fruition adequate, effective and meaningful
reparations in the context of mass victimisation.
Rights and Procedures
Reparations for genocide, crimes against humanity and war crimes and other serious violations of
international human rights and international humanitarian law have been traditionally conceived
in the context of State responsibility for injurious international wrongs, particularly at the end of
a conflict. The progressive recognition of the status of individuals under international law owed
in large part to the developments in international human rights law since the Second World War,
has impacted on the concept and progressive application of the principle of reparations in a
number of fundamental ways:
i) Reparations is understood as a right of victims, not only as an inter-State
prerogative or an act of compassion or charity
Reparation is a moral imperative seeking to mend what has been broken. It can contribute to the
individual and societal aims of rehabilitation, reconciliation, consolidation of democracy and
restoration of law. It can also help overcome traditional prejudices that have marginalised
certain sectors of society and contributed to the crimes perpetrated against them.
It is also a legal right owed to the survivors.
3
ii) The positive implementation of the right to reparations entails both a procedural
right of access to the remedy as well as the substantive form of the relief
Procedural Challenges: For example, to consider the extent of outreach to and consultation with
targeted beneficiaries about reparations measures and whether the special needs of particularly
vulnerable or marginalised sectors of society (including women, children and minority groups) are
adequately considered. The effectiveness of reparations measures can also be judged with
respect to their accessibility to victims, considering whether the adopted measures adequately
address evidentiary, logistical or other hurdles. For example, beneficiaries that were forced to
flee their homes may not have access to the same level of documentation; low literacy and
education levels may mitigate against complicated forms or procedures.
Substantive Challenges: It is important that the form(s) of reparations (e.g., restitution,
compensation, rehabilitation, satisfaction and guarantees of non-repetition) as well as the
quantum and quality of the adopted measures adequately respond to the injurious acts and to the
rights, needs and priorities of beneficiaries and survivor communities. Yet the nature of the
crimes of genocide, crimes against humanity and war crimes, means that it is impossible to put
survivors back where they were prior to the violation or to ‘repair’ the violation. Necessarily,
reparation measures will be symbolic.
This Conference reflects these key precepts in its orientation, organisation, choice and emphasis
of speakers.
Survivors’ Perspectives
A holistic appreciation of the adequacy and appropriateness of reparation measures (both access
to reparations and the reparation measures themselves) requires consideration of survivors’
perspectives, including their initial experience of victimisation as well as the impact this has had
subsequently. Survivors’ expectations of and satisfaction with reparations will reflect this, and
will impact on how they relate to procedures for claiming reparations and the measures
themselves.3
3 Danieli, Y. (1992). Preliminary reflections from a psychological perspective. In T.C. van Boven C. Flinterman, F. Grunfeld & I.
Westendorp (Eds.) The Right to Restitution, Compensation and Rehabilitation for Victims of Gross Violations of Human Rights and
Fundamental Freedoms. Netherlands Institute of Human Rights [Studieen Informatiecentrum Mensenrechten], Special issue No. 12 (pp.
196-213). Also published in N.J. Kritz (Ed.)(1995). Transitional justice: How emerging democracies reckon with former regimes. 1 (pp.
572-582). Washington, D.C.: United States Institute of Peace.
4
Reparation measures should reflect the particularities of the victimisation and its impact on
vulnerable groups and whole communities. In many instances of mass victimisation, women
represent a disproportionately large number of the survivors and the violations they face are
distinct and have differential impact on them and their communities. Equally, the use and abuse
of children in conflicts will impact on them, their families and successive generations. As is
noted in the preamble of the UN Basic Principles and Guidelines on the Right to a Remedy and
Reparation, “Contemporary forms of victimization, while essentially directed against persons,
may nevertheless also be directed against groups of persons who are targeted collectively.”
Crimes such as genocide which by their nature target national, ethnical, racial or religious groups
impact not only the individual victims but the collective identity of the group.
The Relevance of the Post Holocaust Experience
The horror of the Holocaust led to major shifts in international law and the many restitution
measures which resulted are important benchmarks for future national and international
reparations processes. Some of the key markers include:
- Rallying, unifying and building consensus within survivors’ communities to strengthen
political leverage and support for reparations and to aid with distributions;
- Contributing to the procedural evolution of mass claims processes, by identifying special
beneficiary categories with both individualised and collective awards schemes, utilising
streamlined claims processes with flexible evidentiary standards, innovative engagement
of civil society groups, governments, specialised administrative tribunals and courts;
- Experience in the recovery of public and private assets and property.
The post-Holocaust experience must also be seen in a broader context, considering the range of
mass claims processes that have developed alongside. Various mechanisms have been employed
to address the multitude of situations and objectives. Some of these mechanisms have served
more political than judicial objectives, performing fact-finding functions and assessing payments,
as opposed to evaluating liability that has been pre-determined by settlement or agreement.
Certain processes have developed on a purely adversarial basis whereas others have sought to
incorporate dispute resolution or settlement facilities into their activities, including conciliation
and mediation.
5
Some tribunals have adjudicated claims against States, brought by States either on their own
behalf or representing claims of nationals of States that have been espoused and presented on
their behalf by their national governments. Claims mechanisms have also been established to
resolve the claims of individual victims against their own State or a third-State, as well as to
resolve claims of victims against various corporate entities or organizations. Some tribunals have
dealt only with the restitution of victim assets, whereas others have sought to compensate for a
broad range of harms caused. Some mechanisms have focused exclusively on monetary awards for
verifiable real losses whereas others have sought to restore property or other assets.
Many claims mechanisms have successfully used categorisation schemes to determine separate
processes for different types of claims, with differing applicable rules and procedures. In
determining the most appropriate approach, there is a tension between the adoption of measures
aimed at maximising procedural efficiency and cost-effectiveness, and the need to maintain a
minimum of procedural fairness and the overall legitimacy of the mechanism as a legally sound
institution capable of accurate decision-making and compatible with generally accepted
principles of international law.
Also relevant are the important steps taken by regional human rights courts, in particular the
Inter-American Court of Human Rights, and the work of certain national post-conflict truth and
reconciliation commissions which have sought to address reparation in the context of mass
victimisation. To note is the frequent resort to health and education programmes to strengthen
victims’ capacity for personal and social development and to rebuild lives and communities.
In the examples cited, liability for the injurious act(s) rests with the State. This has, in some
instances, aided the funding and implementation of both individual and collective reparations
programmes. States that have recognised their responsibilities to repair past abuses have set
aside lump sums for distribution to victims, identified portions of annual State budgets, and
introduced special taxes to collect funds. However, in some other cases, the will of governments
to contribute to reparations programmes has waned quickly, with reparations falling below other
demands on the States’ budget, such as general societal development.
The examples also stand in contrast to reparations processes before national criminal courts, and
indeed the International Criminal Court, whose mandate is limited to individual (as opposed to
State) responsibility. Funding reparations for mass victimisation from the resources collected
from individual convicted perpetrators is necessarily a challenge. Also, placing the burden of
6
reparations on the few who are convicted before a criminal court is difficult conceptually, given
the nature of the crimes which require the extensive organisation and planning of governments or
other entities. Certain crucial reparation measures will be difficult to implement using the sole
lens of individual responsibility. For example, most measures of satisfaction and guarantees of
non-repetition would require State involvement. This is also the case for other symbolic measures
such as public acts and civic rituals designed to restore social ties between citizens. The
reparations regime of the ICC can therefore not operate in a vacuum nor can its measures ever
hope to fully satisfy victims’ rights to reparations.
The International Criminal Court’s Victims’ Trust Fund should remedy some of the resource gaps
created by indigent defendants unable to pay the reparations awards ordered against them. The
Trust Fund is an important counterbalance to the Court’s reparations process that can pool
resources from a variety of sources, including voluntary contributions, for the benefit of victims
and their communities. Whilst the mandate of the Trust Fund is in many ways broader than that
of the Court, it will remain difficult for it to adequately address the context of mass victimisation
within which the Court’s work is situated. Key questions remain unanswered:
- Who are the beneficiaries of the ICC’s reparations programme – how closely connected
must they be to the persons convicted by the Court? How does or should this impact on
applicants’ access to Court?
- Is the definition of the beneficiary class contingent on the conviction of the perpetrator(s)
or can it be recognised that individuals’ right to reparations exists notwithstanding? The
UN Basic Principles and Guidelines on the Right to a Remedy and Reparations for Gross
Violations of International Human Rights Law and Serious Violations of International
Humanitarian Law recognise that “A person shall be considered a victim regardless of
whether the perpetrator of the violation is identified, apprehended, prosecuted, or
convicted and regardless of the familial relationship between the perpetrator and the
victim,” and the Court will need to consider how this principle relates to its procedures.
In determining methods, priorities and approaches to reparations there are a range of factors to
consider which include:
- How to ensure that the forms of reparations best address the needs of survivors and their
communities? There is no magic formula for reparations; identifying the most suitable
remedies requires careful analysis of and consultation with beneficiary groups, taking into
account variances of perspectives within beneficiary groups, and other divergences such
as time, age, and experience during and post victimisation. Given the impossibility to fully
repair the harm that was caused, most reparations measures (however concrete) will be
symbolic.
- How to ensure that procedures for claiming and receiving reparation do not constitute a
secondary victimization of beneficiaries? The reparation process is designed to restore the
dignity of survivors, not to further alienate or traumatize them.
- How to secure assets: This will depend on the nature of the assets (victim assets or
property, assets belonging to a judgment/debtor or a criminal defendant in respect of
proceeds of crime) as well as the purpose for the asset recovery – to restitute stolen
assets, to compensate beneficiaries for their losses, or to ensure that perpetrators do not
benefit illegally from their crimes. The key to improving enforcement efforts is to ensure
courts have adequate information about the financial circumstances of defendants.
Information about assets and about the defendant’s likely strategies regarding
dissipation/relocation of assets is key to any successful enforcement action.

Thursday, May 24, 2007

Judge Lemonde On the Future of the ECCC if the Internal Rules Fail to Be Adopted

Judge says Cambodian genocide tribunal in jeopardy if court rules not adopted

International Herald Tribune

http://www.iht.com/articles/ap/2007/05/23/asia/AS-GEN-Cambodia-Khmer-Rouge.php

The Associated Press

Published: May 23, 2007



PHNOM PENH, Cambodia: The future of the Khmer Rouge genocide tribunal could be in jeopardy if Cambodian and international officials fail to agree on procedural rules when they meet this month, a foreign judge said Wednesday.

But if the issues are resolved, the first court sessions could be held by early 2008, said Marcel Lemonde, a co-investigating judge for the U.N.-backed tribunal.

"We say ... the trial must begin. People have been waiting for this trial for 30 years, and we can't delay anymore," Lemonde said.

The tribunal, set up to prosecute former Khmer Rouge leaders for alleged genocide and crimes against humanity, has already suffered "a bit of a question of credibility" because of delays, said Lemonde.

"And if the rules were not adopted at this time, then it would be dramatic for the future, the very existence of this court," said Lemonde, a U.N.-appointed judge.

The radical polices of the Khmer Rouge caused the death of about 1.7 million people through hunger, disease, overwork and execution during its horrific 1975-79 rule.

The meeting for Cambodian and U.N.-appointed judicial officials is slated from May 31 to June 13. Asked if this was the last chance for the procedural rules to be adopted, he said, "I would say so, yes."

The tribunal was created last year under a 2003 pact between Cambodia and the United Nations.

Trials were originally expected to start this year but have been repeatedly delayed by procedural disagreements between Cambodian and foreign judges. The setting of expensive legal fees for foreign lawyers wanting to take part in the tribunal was the latest obstacle, before being resolved last month.

Many fear the remaining Khmer Rouge leaders, who are aging and in declining health, could die before the trial starts.

Lemonde, formerly a judge in France, said "if everything goes correctly" at the coming meeting, the investigation phase would begin in the weeks afterward. He said the goal is to start the trial proceedings "at the beginning of 2008."

He declined to estimate the number of possible defendants but said the tribunal will try not only the most senior Khmer Rouge leaders.

While the tribunal will not be able to prosecute hundreds of defendants, he said it cannot let "very serious criminals" escape justice.

"We couldn't (just) say 'well, there are too many defendants, and this person is supposed to have killed 1,000 people but we won't deal with him.' This is not acceptable for the victims and for everybody in the world," Lemonde said.

"If we understand and get evidence that somebody has committed large-scale crimes, even if he's not a very high-ranking person, he will have to answer for his crimes," he said.



Copyright © 2007 the International Herald Tribune All rights reserved

Friday, May 18, 2007

Press Conference on the Internal Rules of the ECCC Is Announced

PRESS RELEASE ON PLENARY SESSION



The next Plenary Session of judicial officers of the ECCC will be held in Phnom Penh from 31 May to 13 June 2007. The main objective is to adopt the Internal Rules for the ECCC. The final draft has been prepared over previous months by the Rules Review Committee.



The session will commence with two days of preparatory meetings, and the formal Opening Session will be held on Monday 4 June. A swearing-in ceremony for ECCC investigators will be held on Wednesday 13 June, at the conclusion of the full Plenary Session.



The Plenary Session is a closed session, but the media is invited to attend the Opening Session (with photo opportunity) on Monday 4 June 2007 at 8.15am at Raffles Hotel Le Royal. A closing Press Conference will be held on Wednesday 13 June 2007 at the ECCC at a time to be announced.



We request those media representatives interested in attending either of the press events to contact the ECCC Press Officer, Mr Reach Sambath, on 012 488156 or by email at reach.sambath@eccc.gov.kh.



Reach Sambath
Presss Officer
Extraordinary Chambers in the Courts of Cambodia
Tel: (855) 12 891 567
Fax: (855) 23 219 841
Email: reach.sambath@eccc.gov.kh, reachsambath@hotmail.com

Thursday, May 17, 2007

ECCC Internal Rules to Be Announced

Bid to end deadlock in Cambodia genocide tribunal

http://w3.nexis.com/new/auth/checkbrowser.do?t=1179397911559&bhcp=1

May 16 2007

Agence France Presse



Judges at Cambodia's Khmer Rouge tribunal will meet from May 31 hoping to resolve a long-running dispute over rules that has delayed the start of genocide trials, a spokesman said Wednesday.



The two-week meeting of foreign and Cambodian jurists has been deadlocked for months over internal tribunal regulations, threatening to derail attempts to prosecute one of the 20th century's worst atrocities.



"We fully expect on June 13 ... that we will be announcing the adoption of the internal rules," tribunal spokesman Peter Foster told AFP.



UP to two million people died of starvation and overwork, or were executed, during the communist Khmer Rouge's 1975-79 rule over Cambodia.



The regime abolished religion, schools and currency, exiling millions onto vast collective farms with the aim of creating an agrarian utopia.



Rights groups and legal advocates have called for swift trials amid concern that ageing Khmer Rouge leaders will die before being brought to justice.



So far only one possible defendant is in custody, while several live freely in Cambodia.



The only other person to have been arrested for crimes committed during the regime, military commander Ta Mok, died in prison last July.



Khmer Rouge leader Pol Pot died in 1998.



The first trials of former Khmer Rouge leaders has been initially expected this year after nearly a decade of negotiations and setbacks.



However, the repeated delays mean trials are unlikely to start before early 2008, officials say.



"Once the internal rules are adopted, the judicial investigation can start in the following weeks," co-investigating judge Marcel Lemonde said.











Copyright 2007 Agence France Presse

All Rights Reserved

Tuesday, May 15, 2007

Cambodian Graduate Student on Reparations

CAMBODIA FROM KILLING FIELDS TOA COURT OF JUSTICE:
CHALLENGES AHEAD
By
Chheang Vananrith
Excerpts (Selected by the Moderator of This Blog)


6.3. Reparations

Reparation, rehabilitation, and compensation are necessary to pay respect to
the dignity of the victims in line with general notions of justice. Reparation can
include “the acknowledgement of the atrocity as well as the dignity of the victims”.
Reparation can occur through “commemorations, medical care and formal public
recognition by the state of its responsibility for atrocities.”61
The right to reparation, according to Theo van Boven, involves both
“individual measures and general, collective measures”62.At the individual level,
Victims - including relatives and dependants - must have an
effective remedy. The procedures applicable must be publicized as
widely as possible. The right to reparation should cover all
injuries suffered by victims. This right embraces three kinds of
action: (a) Restitution (seeking to restore victims to their previous
state); (b) Compensation (for physical or mental injury, including
lost opportunities, physical damage, defamation and legal aid
costs); and (c) Rehabilitation (medical care, including
psychological and psychiatric treatment)
[...]
Psychological treatment, one of the important elements of reparations for
the victims, must be provided to victims of the Khmer Rouge regime, especially
those who participate in the court as witnesses. Such assistance is stated in the
United Nations Declaration of Basic Principles of Justice for Victims of Crime and
Abuse of Power that “Victims should receive the necessary material, medical,
psychological and social assistance through governmental, voluntary,
community-based and indigenous means
The full text of this document is available at www.rfa.org/english/background/khmer/2006/08/22/tribunal_challenges.pdf



Saturday, May 12, 2007

Report: Khmer Rouge Victim Says International Community Needs to Consider Reparations

Pol Yat
, female, age 68. Interviewed in Kraing Leav village.
Pol Yat stated that she suffered from the hard working conditions imposed on her during the
regime, and that three of her sibilings were killed by Khmer Rouge cadres. She also talked about
people in her village killing Khmer Rouge cooperative chiefs soon after the Khmer Rouge
regime was defeated by the Vietnamese troops.
For Pol Yat, achieving justice meant not only prosecuting the surviving Khmer Rouge leaders
but also lower-level perpetrators from the regime. She also felt that the most suitable punishment
for all of them would be the death penalty. Pol Yat also stated that the international community
should consider reparations and compensation for the victims of the Khmer Rouge regime
See full report at http://72.14.235.104/search?q=cache:AlytXcSC9DoJ:www.dccam.org/Projects/Promoting/PA_2ND_QUARTERLY_REPORT_FINAL.pdf+reparations+for+the+Khmer+Rouge&hl=en&ct=clnk&cd=18

Visit the Offical Website of the ECCC

http://www.krtrial.info/showarticle.php?language=english&action=showarticle&art_id=935&PHPSESSID=fead58b2816576723d8e7c13a37ddcce

Paper: Collective Response to Mass Violence: Reparations and Healing in Cambodia, in Bringing the Khmer Rouge to Justice: Prosecuting Mass Violence

Collective Response to Mass Violence: Reparations and Healing in Cambodia, in Bringing the Khmer Rouge to Justice: Prosecuting Mass Violence Before the Cambodian Courts
JAYA RAMJI-NOGALES The James E. Beasley School of Law, Temple UniversityBETH VAN SCHAACK Santa Clara University - School of Law
Santa Clara Univ. Legal Studies Research Paper No. 06-02 BRINGING THE KHMER ROUGE TO JUSTICE: PROSECUTING MASS VIOLENCE BEFORE THE CAMBODIAN COURTS, The Edwin Mellen Press, 2005

Abstract: This piece (authored by Jaya Ramji-Nogales) examines an area long neglected in current discussions of Khmer Rouge accountability-reparations for victims. It discusses the Khmer Rouge tribunal law's silence on this matter and presents several arguments, drawing on international human rights law, for the tribunal's awarding of reparations notwithstanding this textual blindspot. The chapter then reviews the various goals reparations can achieve-restitution, rehabilitation, and reconciliation; the types of reparations that can be awarded; and the mechanisms, individual versus collective, that can be used to distribute reparations. Turning to the Cambodian context, it emphasizes the need for a comprehensive study to understand the opinions of Cambodians with respect to reparations. The piece concludes by suggesting several alternative approaches to reparations that are sensitive to Cambodian attitudes and the unique Cambodian cultural context. The chapter comes from a book (co-edited by Beth Van Schaack and Jaya Ramji-Nogales) that explores the legal issues surrounding accountability for the crimes of the Khmer Rouge and crimes of mass violence more generally. Comprising chapters authored by legal academics, lawyers, historians, artists, and others, the volume analyzes the complex problems inherent to such accountability efforts, and presents novel ideas as to how to address them. Three chapters examine aspects of accountability from the Cambodian and/or Theravada Buddhist perspective, a viewpoint that has rarely been considered before in this context. Other chapters present explanations for the failure of past accountability efforts, discuss holes in the law authorizing a tribunal for senior Khmer Rouge leaders, and outline the evidence available and how it can be used for such a trial. In addition to examining accountability in Cambodia from multiple perspectives, the book presents questions and ideas that affect all efforts to hold perpetrators accountable after widespread human rights violations. One particularly ground-breaking chapter questions the focus on top leadership in genocide trials, using Cambodia as a case study, and other chapters point to new directions in amnesty and reparations scholarship and practice. The book is accompanied by an online appendix of primary documents relevant to past, current and future accountability mechanisms in Cambodia.

Keywords: Cambodia, reparations, international criminal law, hybrid tribunals, Khmer Rouge, transitional justice

JEL Classifications: K33

Accepted Paper Series

Suggested Citation
Ramji-Nogales, Jaya and Van Schaack, Beth, "A Collective Response to Mass Violence: Reparations and Healing in Cambodia, in Bringing the Khmer Rouge to Justice: Prosecuting Mass Violence Before the Cambodian Courts" . BRINGING THE KHMER ROUGE TO JUSTICE: PROSECUTING MASS VIOLENCE BEFORE THE CAMBODIAN COURTS, The Edwin Mellen Press, 2005 Available at SSRN: http://ssrn.com/abstract=923359
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Contact Information for JAYA RAMJI-NOGALES (Contact Author) Email address for JAYA RAMJI-NOGALES The James E. Beasley School of Law, Temple University 1719 N. Broad Street Philadelphia , PA 19122 United States 215-204-6430 (Phone) 215-204-1185 (Fax)
Contact Information for BETH VAN SCHAACK Email address for BETH VAN SCHAACK Santa Clara University - School of Law 500 El Camino Real Santa Clara , CA 95053 1 (408) 554 2349 (Phone) 1 (408) 554 4426 (Fax)

Monday, May 7, 2007

ECCC Official Tells Villagers Nothing in the Law Provides for Reparations

Forum Finds Tribunal Angst Over Cooperation, Money

http://www.voanews.com/khmer/2007-05-04-voa1.cfm

Mony, VOA Khmer
Original reports from Mondulkiri
04/05/2007

A Khmer Rouge tribunal forum in Mondolkiri province Friday found villagers worried over the ability of Cambodian and UN-appointed judges to cooperate—and whether victims of the brutal regime should received monetary compensation for their pain.

The forum, one of a series held by the Center for Social Development, brought together participants from 12 districts in the province and included a film overview of the Khmer Rouge years.

Participants said they worried about the titles of "co-prosecutor" would lead to the same troubles as "co-prime minister" did in the 1990s, when a power-sharing agreement between the former premiers Hun Sen and Prince Norodom Ranariddh meant deadlocks and, ultimately, a violent coup.

So far, Cambodian and international judges and prosecutors have met numerous stumbling blocks themselves. The most recent public hurdle—excessive fees for foreign lawyers—was overcome recently, when the Cambodian Bar Association lowered its requirements.

Tribunal judges said they hoped to meet at the end of May to reach final agreement on internal rules that govern the operation of the tribunal.

Villagers at the Mondolkiri forum also said they wanted to see reparations for victims, a hope tribunal spokesman Reach Sambath said was not provided for in civil law.

Thursday, May 3, 2007

Preliminary Questions for Reparations

As the ECCC proceeds and when and if its Internal Rules discussed here are adopted, the question of reparations -- among many others -- will have to be answered. To answer this question multiple contributing factors will need to be considered which can take the shape of a three-tiered structure: 1) legal questions; 2) questions of public opinion; 3) questions of feasibility.

Let's look at these three in detail:

1) legal questions

There is a variety of legal questions that are likely to be posed with guidance sought in the recent international practice of international criminal and hybrid tribunals. Secondly, there is an issue of the extent to which the Internal Rules of the ECCC will restrict the Cambodian law on compensation (civil remedy) in criminal cases resulting in a conviction.

2) questions of public opinion

It is essential to understand where the court of public opinion stands upon this issue and whether it is broadly understood that reparations are a moral imperative, and therefore, should become a legal one, or whether it is not an expectation of most Cambodians to attain such and the entire issue is not understood as an entitlement. If the latter is the case, it is hard to imagine that none of the Cambodians who lived through the Democratic Kampuchea period -- or might have an otherwise entitlement, depending upon the Internal Rules of the Chambers -- and who received an injury of one type or another will say a unanimous 'no' to reparations, in which case a critical question of whether an overwhelming majority can overpower a small minority will have to be answered.

3) questions of feasibility

Many might argue that although reparations might be a moral imperative, but it is merely not feasible to repair the damage done to, potentially, millions of people, provided the ECCC trials result in convictions, of course. This in itself will subsequently open a can of worms and bring along a spate of questions, such as who will pay, how much will be paid per claim or per individual, will the Court have to open a venue for individuals to bring cases against particular defendants or will the convictions result in a condemnation of the Communist Party of Kampuchea (CPK) and qualifying it as a criminal organization (as it was done with, for example, SS at Nuremberg) and reparations will be mere per-victim apportionments, rather than monies paid per civil claim attached to a criminal one. Management of reparations, its transparency and fairness are some of the other issues that will need to be addressed.

Breakthrough in Defense Lawyer Bar Fees Negotiations

Cambodia lowers fees for foreign Khmer Rouge genocide tribunal lawyers

By SOPHENG CHEANG

Associated Press Writer

4/28/2007



PHNOM PENH, Cambodia (AP) _ The Cambodian Bar Association has decided to substantially lower legal fees for foreign lawyers wanting to take part in the much-delayed Khmer Rouge genocide trials, the association's spokesman said Saturday.



The association denied that its decision was a response to anger over initial fees, which were more than five times higher and had raised concerns that expense would limit defendants' and witnesses' choice of attorneys.



"The decision to lower the fees reflects the true willingness of the Cambodian Bar Association to allow the process of the tribunal to move forward as quickly as possible," Nou Tharith, a bar association spokesman, said at a news conference.



Nou Tharith said any foreign lawyers wanting to represent clients at the trials will now be required to pay only a flat, one-time fee of US$500 (euro367).



The amount is a significant reduction from the combined US$2,700 (euro1,980) the association had originally demanded. The initial sum included a US$500 (euro367) membership application fee, an additional US$2,000 (euro1,500) fee once a case was assigned and a US$200 (euro150) monthly fee.



Peter Foster, the U.N.-appointed spokesman for the tribunal, said the bar's announcement "seems like a very positive development."



Foster was still waiting for details of the decision to inform the foreign judges, who may respond with a formal statement Monday.



Youk Chhang, director of the Documentation Center of Cambodia, an independent group documenting the Khmer Rouge crimes, said, "It's good that this decision has been made so that there will be no more delay."



The dispute over lawyer fees was the latest obstacle for the U.N.-backed effort to try the Khmer Rouge's few surviving leaders on charges of genocide and crimes against humanity. About 1.7 million people died during the regime's 1975-79 rule.



The tribunal's foreign judges had demanded that the Bar Association reconsider its high fees, which they said would severely limit the right of the accused and witnesses to have lawyers of their choice.



On Saturday, Nou Tharith said the latest decision "will break the stalemate created" by the foreign judges.

Wednesday, May 2, 2007

Preliminary Questions for Reparations

As the ECCC proceeds and when and if its Internal Rules discussed here are adopted, the question of reparations -- among many others -- will have to be answered. To answer this question multiple contributing factors will need to be considered which can take the shape of a three-tiered structure: 1) legal questions; 2) questions of public opinion; 3) questions of feasibility.

Let's look at these three in detail:

1) legal questions

There is a variety of legal questions that are likely to be posed with guidance sought in the recent international practice of international criminal and hybrid tribunals. Secondly, there is an issue of the extent to which the Internal Rules of the ECCC will restrict the Cambodian law on compensation (civil remedy) in criminal cases resulting in a conviction.

2) questions of public opinion

It is essential to understand where the court of public opinion stands upon this issue and whether it is broadly understood that reparations are a moral imperative, and therefore, should become a legal one, or whether it is not an expectation of most Cambodians to attain such and the entire issue is not understood as an entitlement. If the latter is the case, it is hard to imagine that none of the Cambodians who lived through the Democratic Kampuchea period -- or might have an otherwise entitlement, depending upon the Internal Rules of the Chambers -- and who received an injury of one type or another will say a unanimous 'no' to reparations, in which case a critical question of whether an overwhelming majority can overpower a small minority will have to be answered.

3) questions of feasibility

Many might argue that although reparations might be a moral imperative, but it is merely not feasible to repair the damage done to, potentially, millions of people, provided the ECCC trials result in convictions, of course. This in itself will subsequently open a can of worms and bring along a spate of questions, such as who will pay, how much will be paid per claim or per individual, will the Court have to open a venue for individuals to bring cases against particular defendants or will the convictions result in a condemnation of the Communist Party of Kampuchea (CPK) and qualifying it as a criminal organization (as it was done with, for example, SS at Nuremberg) and reparations will be mere per-victim apportionments, rather than monies paid per civil claim attached to a criminal one. Management of reparations, its transparency and fairness are some of the other issues that will need to be addressed.

Reparations and Other Issues

The Cambodian Extraordinary Chambers
A sui generis system leaving many questions unanswered
David Boyle
Cambodia Democratic Kampuchéa era
I. Historical Overview
1st Indochina conflict (1945-1953) - French decolonisation
2nd conflict (1963-1975) - Extension of the US - Vietnam War
3rd conflict (1977-1991) - Vietnamese Invasion of Cambodia
Kingdom of Cambodia (1993 -
1st conflict (1945-1953) - French Decolonisation
1863 - French Protectorate
1945-1953 - Decolonisation in Indochina
1953-1970 - Independence under Sihanouk
The Sankum: Period of relative peace through paternalistic despotism
socialist one party reality screened by regular “democratic” elections
progressively increasing repression of political dissent
non-alignment in an attempt to remain neutral in the Vietnamese conflict
2nd Conflict (1963-1975)
1963 - Extension of the US-Vietnam War to Cambodia
1970 - The Khmer Republic - Pro American Coup by General Lon Nol - Sihanouk flees to China and allies with the KR
1973 - US and Vietnamese forces leave Cambodia - Paris Conference on Vietnam “peace with honour”
1975 - Phnom Penh falls to the KR (17 April)
The Khmer Republic (1970-1975)
The Government
Permanent state of war against Vietnamese then KR forces
State instigated pogroms against Vietnamese residents (details)
Military reprisals against villages harbouring the Khmer Rouge
US secret carpet bombing of Cambodian Territory until August 1973
Khmer Rouge guerrilla war
progressive installation of collectivist system in “liberated” areas starting in the North West
Alliance with Sihanouk, reaction to Republican forces and US bombing facilitate acceptance by the population
Democratic Kampuchea (1975 - 1979)
The population of major towns, defined as the “new people” is forced to leave for the provinces, under the pretext of temporary evacuation
Elimination of “enemies of the revolution”: members of previous regimes, republican military personnel, collaborators with foreign countries
Territorial tensions with Vietnamese “Brother enemies”
Abrupt imposition of collective living, prohibition of money and religion, separation of children and spying, slave labour using predominantly new people: many deaths from starvation, forced labour, untreated illnesses, arbitrary punishment of “counter-revolutionary activities”.
Establishment of a torture based police security system culminating at Tuol Sleng (S21) [Director - Duch]
Democratic Kampuchea cont.
1976 - Khmer Rouge policy towards ‘reactionary elements’ widened and the pace of killings increased : intellectuals, professors, students…
1977-1978 – purges against rival commmunist factions
many communist cadre are killed or flee to Vietnam
Ta Mok is placed in control of the eastern region
1979 - Vietnamese invasion
Phnon Penh falls on the 7 January
End of February 1979: Vietnamese troops arrive at Thai border
3rd Conflict (1978-1991) Vietnam - Cambodia
1978 (25 Dec.) Vietnamese Invasion of Cambodia
1979 Establishment of the “Popular Republic of Kampuchea” pro-Vietnamese
180 000 Cambodians flee to Thailand
The “Government of Democratic Kampuchea” in exil keeps Cambodia’s seat at the UN
Guerrilla war along Thai border / HR violations
1989 - Vietnam announces retreat from Cambodia
1991 - Paris Peace Agreement creating UNTAC (1991 – 1993)
Khmer Rouge Accountability
1993 - Sihanouk promulgates the Constitution
1996 - Surrender and amnesty of Ieng Sary (Brother No.3)
1997 - Pol Pot excluded from the KR leadership and imprisoned
- UN HR Commission declaration on Khmer Rouge
- The Cambodian Government requests UN aid to try KR
1998 - Death of Pol Pot
- Democratic Elections (new coalition CPP/Funcinpec)
1999 - Expert Group Report: UN favours a third ad hoc ICT
2000 - draft Memorandum of Understanding (basic structure)
2001 - Law Establishing the Extraordinary Chambers
2002 - the Secretary-General pulls out of the negotiations
- The General Assembly requests SG to continue
International influences
During 6 years of negotiations (97-03) (Kosovo, East Timor, Sierra Leone)
1998: UN representation suspended - Cambodia did not sign Rome Treaty
Although Cambodia often cited in support of establishing the ICC, it does not have jurisdiction
Original UN draft statute for a third ad hoc ICT based on the ICTR
2002: After UN pullout from negotiations, Cambodia ratifies Rome Statute (11 April)
2003 final agreement incorporates ICC references
Domestic Reality
The relative strength of the negotiating position of the Cambodian Government, as compared with other countries establishing hybrid tribunals, explains the unprecedented structure of the EC, the limitation of their jurisdiction to the crimes committed by the Khmer Rouge during their period in power, and the mixture of domestic criminal procedure and international principles.
The Constitutive Documents
2003 - UN / Cambodia Agreement on international participation
2004 - Ratification of the Agreement
- Amended Law Establishing ECCC (EC law)
2006 - Internal rules?
II. The Extraordinary Chambers in the Courts of Cambodia
Structure
Legal Status
International Participation
Jurisdiction
Procedure
Victims
Structure - “moderated” civil law
Pre-Trial / investigation stage
Investigations are carried out by international and Cambodian co-prosecutors and co-investigating judges.
Any disagreement between them is settled by a ‘Pre-trial Chamber’.
Trial stage
Cases are brought for trial before the ‘Extraordinary Chamber’ of the Phnom Penh Municipal Court.
A single appeal lies directly to the ‘Extraordinary Chamber’ of the Supreme Court.
Legal Status Domestic Courts
Cambodian courts established by the EC Law as specialised chambers within the existing judicial hierarchy.
the 2003 Agreement mainly covers international standards and cooperation
In case of conflict?
both documents have the status of law in Cambodia, it is open to question which should prevail
Lex specialis? / last law prevails?
Special status of Human Rights treaties
Languages (Art. 45) Khmer, French, English
International Participation
Investigation stage
two co-prosecutors with identical powers, one international and one Cambodian
two co-investigating judges with identical powers, one international and one Cambodian
a “Pre-trial Chamber” to resolve any disputes between the co-prosecutors or the co-investigating judges (same structure as the Trial Chamber – except that a ‘super majority’ is needed to block a decision)
Appellate issues during pre-trial stage
Under Cambodian Law
Decisions of prosecutors (prosecutor of Court of Appeal)
Decisions of investigating judges (Court of Appeal)
A role for the Pre-Trial Chamber?
Powers under EC Law (resolve disputes between staff)
No appeal allowed
Right of parties to be heard / represented?
Possible scenarios
Defence appeal against co-prosecutor decision to investigate
Victim appeal against co-IJ decision not to accept civil party claim
Trial stage
Trial Chamber:
5 judges - 2 international and 3 Cambodian (including presiding judge)
Decisions require a ‘super majority’ of at least 4 judges
Appeals Chamber:
7 judges, 3 international and 4 Cambodian (including presiding judge)
Decisions require a ‘super majority’ of at least 5 judges
Organisation of international participation
Supreme Council of the Magistracy appoints:
all Cambodian judges,
all international judicial personnel ‘upon nomination by the UN Secretary-General’, from lists provided by the latter.
Administration:
Cambodian Director of Office of Administration, Sean Visoth
international Deputy Director, Michelle Lee (both officially appointed on 24 November 2005).
Other international positions posted on UN Website
International Financial Aid
Total Budget (3 years) - 56,3 USD
Voluntary International Contributions - $43 M
Currently around $38,7 promised (UE?)
Cover cost of international staff
Contribution by Cambodia - $13,3 M
Cost of Cambodian staff 1 premises
Cambodia will not pay all this
The rest from Bilateral aid (UE…) / leftover UNTAC funds
Jurisdiction
Subject matter jurisdiction
Personal jurisdiction
Temporal Jurisdiction
Territorial jurisdiction
Subject matter jurisdiction
International crimes :
Genocide;
Crimes against Humanity;
Grave breaches of the 1949 Geneva Conventions;
1954 Hague Convention on protection of Cultural Property;
1961 Vienna Convention on Diplomatic Relations (EC Law, Arts. 4 to 8).
Serious crimes under Cambodian law
(1956 Penal Code): homicide, torture, religious persecution (EC Law, Art. 3).
Genocide
Definitional issues (Art. 4)
as defined in the Genocide Convention
"such as"
Punishable acts: genocide, attempt, conspiracy and “participation” (not direct and public incitement)
Crimes against Humanity
Definitional Issues:
2003 Agreement, Art. 9 : ICC definition
EC Law, Art. 5 (ICTR):
"…any acts committed as part of a widespread or systematic attack directed against any civilian population, on national, political, ethnical, racial or religious grounds, such as:"
Personal jurisdiction
The CEC have personal jurisdiction over two overlapping groups of people (EC Law, Art. 2):
Senior leaders of Democratic Kampuchea ; and
those who were most responsible for the crimes coming within the jurisdiction of the CEC
Personal Jurisdiction (II)
Estimates of the number of people falling within these criteria vary, however, the CEC will not have a sufficient budget to try large numbers of people.
Two people are currently in pre-trial detention:
Chhit Choeun (Ta Mok), a former military commander ;
Kaing Khek Iev (Duch), director of Tuol Sleng
Leaders
Pol Pot (dead)
Nuon Chea
Ieng Sary (amnestied)
Khieu Samphan
Ta Mok
Duch (Kaing Kek Euv)
Mam Nay
Brother Number 1
Brother Number 2
Foreign Affaires
President
Military (in prison)
Director of S21 (in prison)
S21: interrogations
Temporal Jurisdiction
The temporal jurisdiction of the CEC is strictly limited to the period from 17 April 1975 to 6 January 1979, during which the Demoicratic Kampuchea regime was in power.
Territorial jurisdiction
The territorial jurisdiction of the CEC is not specified
The Chambers will thus have to decide whether
to try all the crimes coming within their jurisdiction, regardless of where they were committed (as in Sierra Leone), or
to apply existing Cambodian law, which appears to restrict jurisdiction to crimes committed in Cambodia.
Procedure
Cambodian law (this may include the draft Code of criminal procedure currently under discussion if it is adopted in time).
However, the CEC are authorised to seek guidance in ‘procedural rules established at the international level’ where Cambodian law ‘does not deal with a particular matter, or where there is uncertainty regarding the interpretation or application of a relevant rule of Cambodian law, or where there is a question regarding the consistency of such a rule with international standards’ [2003 Agreement, Art. 12(1)].
Internal Rules to complement applicable Cambodian Law?
Principle
Respect for the spirit of applicable Cambodian procedure
Adapt for participation, pre-trial appeals, victims…
Means
Adoption as law
Adoption by the judicial staff.
Adoption of the new Code of Criminal Procedure as the applicable law.
Specific procedural issues
Previous attempts to try KR (non bis)
1979: PRK Popular Tribunal to try the Pol Pot-Ieng Sary clique
Amnesties and Pardons (EC Law Art. 40) no request in future but previous acts open to doubt
1994 Anti KR Law
1996 Amnesty for Ieng Sary
Statute of Limitations
Excluded for genocide and Crimesa gainst humanity
War crimes etc. ?
Extended by thirty years for domestic crimes
Extradition requests
Role of Victims
Participation
Representation
Protection
Reparations
Participation
EC Law - ambiguous references to victims
Cambodian procedure
Appeals by Accused, procesutor & victims - Art. 36
Rights of accused v. protection of victims - Art. 33
Under Cambodian law, victims have right:
to file complaints and appeal decisions not to investigate
to be joined as civil parties to criminal proceedings, in order to participate in the trial and claim damages.
Organising Participation
Possible collective solutions to large numbers of victim claims or actions:
Widened admissibility of legal action by associations.
collective exercise of victims’ rights by persons having comparable claims
Allowing associations to file complaints and requests for civil party status on behalf of victim groups.
Representation
Issues:
The right to the aid of counsel of choice,
admitted to a foreign or Cambodian Bar,
under the same conditions as the accused.
Organisation (possible ICC inspiration):
Allow Extraordinary Chambers to request victims having comparable claims to choose a common legal representative.
Creation of a public counsel service to facilitate organisation of victim and defence representation.
Protection issues
Protection of all “victims” who participate in the trials (VWUnit): witnesses, complainants, civil parties, and their representatives. (art. 33)
Application of all the protection measures available to victims before ICC.
Jurisdiction over offences relating to “coercion” of witnesses and contempt proceedings
Reparations issues
Allowed under Cambodian law (civil parties)
Extent of power of the Extraordinary Chambers to grant individual and collective reparations, as recognized at the international level: restoration, compensation, rehabilitation, satisfaction and guarantees of non-repetition.
Creation of a Trust Fund in favour of victims to receive both property confiscated from those persons found guilty and voluntary contributions.
CONCLUSION

Reparations and Other Issues

The Cambodian Extraordinary Chambers
A sui generis system leaving many questions unanswered
David Boyle
Cambodia Democratic Kampuchéa era
I. Historical Overview
1st Indochina conflict (1945-1953) - French decolonisation
2nd conflict (1963-1975) - Extension of the US - Vietnam War
3rd conflict (1977-1991) - Vietnamese Invasion of Cambodia
Kingdom of Cambodia (1993 -
1st conflict (1945-1953) - French Decolonisation
1863 - French Protectorate
1945-1953 - Decolonisation in Indochina
1953-1970 - Independence under Sihanouk
The Sankum: Period of relative peace through paternalistic despotism
socialist one party reality screened by regular “democratic” elections
progressively increasing repression of political dissent
non-alignment in an attempt to remain neutral in the Vietnamese conflict
2nd Conflict (1963-1975)
1963 - Extension of the US-Vietnam War to Cambodia
1970 - The Khmer Republic - Pro American Coup by General Lon Nol - Sihanouk flees to China and allies with the KR
1973 - US and Vietnamese forces leave Cambodia - Paris Conference on Vietnam “peace with honour”
1975 - Phnom Penh falls to the KR (17 April)
The Khmer Republic (1970-1975)
The Government
Permanent state of war against Vietnamese then KR forces
State instigated pogroms against Vietnamese residents (details)
Military reprisals against villages harbouring the Khmer Rouge
US secret carpet bombing of Cambodian Territory until August 1973
Khmer Rouge guerrilla war
progressive installation of collectivist system in “liberated” areas starting in the North West
Alliance with Sihanouk, reaction to Republican forces and US bombing facilitate acceptance by the population
Democratic Kampuchea (1975 - 1979)
The population of major towns, defined as the “new people” is forced to leave for the provinces, under the pretext of temporary evacuation
Elimination of “enemies of the revolution”: members of previous regimes, republican military personnel, collaborators with foreign countries
Territorial tensions with Vietnamese “Brother enemies”
Abrupt imposition of collective living, prohibition of money and religion, separation of children and spying, slave labour using predominantly new people: many deaths from starvation, forced labour, untreated illnesses, arbitrary punishment of “counter-revolutionary activities”.
Establishment of a torture based police security system culminating at Tuol Sleng (S21) [Director - Duch]
Democratic Kampuchea cont.
1976 - Khmer Rouge policy towards ‘reactionary elements’ widened and the pace of killings increased : intellectuals, professors, students…
1977-1978 – purges against rival commmunist factions
many communist cadre are killed or flee to Vietnam
Ta Mok is placed in control of the eastern region
1979 - Vietnamese invasion
Phnon Penh falls on the 7 January
End of February 1979: Vietnamese troops arrive at Thai border
3rd Conflict (1978-1991) Vietnam - Cambodia
1978 (25 Dec.) Vietnamese Invasion of Cambodia
1979 Establishment of the “Popular Republic of Kampuchea” pro-Vietnamese
180 000 Cambodians flee to Thailand
The “Government of Democratic Kampuchea” in exil keeps Cambodia’s seat at the UN
Guerrilla war along Thai border / HR violations
1989 - Vietnam announces retreat from Cambodia
1991 - Paris Peace Agreement creating UNTAC (1991 – 1993)
Khmer Rouge Accountability
1993 - Sihanouk promulgates the Constitution
1996 - Surrender and amnesty of Ieng Sary (Brother No.3)
1997 - Pol Pot excluded from the KR leadership and imprisoned
- UN HR Commission declaration on Khmer Rouge
- The Cambodian Government requests UN aid to try KR
1998 - Death of Pol Pot
- Democratic Elections (new coalition CPP/Funcinpec)
1999 - Expert Group Report: UN favours a third ad hoc ICT
2000 - draft Memorandum of Understanding (basic structure)
2001 - Law Establishing the Extraordinary Chambers
2002 - the Secretary-General pulls out of the negotiations
- The General Assembly requests SG to continue
International influences
During 6 years of negotiations (97-03) (Kosovo, East Timor, Sierra Leone)
1998: UN representation suspended - Cambodia did not sign Rome Treaty
Although Cambodia often cited in support of establishing the ICC, it does not have jurisdiction
Original UN draft statute for a third ad hoc ICT based on the ICTR
2002: After UN pullout from negotiations, Cambodia ratifies Rome Statute (11 April)
2003 final agreement incorporates ICC references
Domestic Reality
The relative strength of the negotiating position of the Cambodian Government, as compared with other countries establishing hybrid tribunals, explains the unprecedented structure of the EC, the limitation of their jurisdiction to the crimes committed by the Khmer Rouge during their period in power, and the mixture of domestic criminal procedure and international principles.
The Constitutive Documents
2003 - UN / Cambodia Agreement on international participation
2004 - Ratification of the Agreement
- Amended Law Establishing ECCC (EC law)
2006 - Internal rules?
II. The Extraordinary Chambers in the Courts of Cambodia
Structure
Legal Status
International Participation
Jurisdiction
Procedure
Victims
Structure - “moderated” civil law
Pre-Trial / investigation stage
Investigations are carried out by international and Cambodian co-prosecutors and co-investigating judges.
Any disagreement between them is settled by a ‘Pre-trial Chamber’.
Trial stage
Cases are brought for trial before the ‘Extraordinary Chamber’ of the Phnom Penh Municipal Court.
A single appeal lies directly to the ‘Extraordinary Chamber’ of the Supreme Court.
Legal Status Domestic Courts
Cambodian courts established by the EC Law as specialised chambers within the existing judicial hierarchy.
the 2003 Agreement mainly covers international standards and cooperation
In case of conflict?
both documents have the status of law in Cambodia, it is open to question which should prevail
Lex specialis? / last law prevails?
Special status of Human Rights treaties
Languages (Art. 45) Khmer, French, English
International Participation
Investigation stage
two co-prosecutors with identical powers, one international and one Cambodian
two co-investigating judges with identical powers, one international and one Cambodian
a “Pre-trial Chamber” to resolve any disputes between the co-prosecutors or the co-investigating judges (same structure as the Trial Chamber – except that a ‘super majority’ is needed to block a decision)
Appellate issues during pre-trial stage
Under Cambodian Law
Decisions of prosecutors (prosecutor of Court of Appeal)
Decisions of investigating judges (Court of Appeal)
A role for the Pre-Trial Chamber?
Powers under EC Law (resolve disputes between staff)
No appeal allowed
Right of parties to be heard / represented?
Possible scenarios
Defence appeal against co-prosecutor decision to investigate
Victim appeal against co-IJ decision not to accept civil party claim
Trial stage
Trial Chamber:
5 judges - 2 international and 3 Cambodian (including presiding judge)
Decisions require a ‘super majority’ of at least 4 judges
Appeals Chamber:
7 judges, 3 international and 4 Cambodian (including presiding judge)
Decisions require a ‘super majority’ of at least 5 judges
Organisation of international participation
Supreme Council of the Magistracy appoints:
all Cambodian judges,
all international judicial personnel ‘upon nomination by the UN Secretary-General’, from lists provided by the latter.
Administration:
Cambodian Director of Office of Administration, Sean Visoth
international Deputy Director, Michelle Lee (both officially appointed on 24 November 2005).
Other international positions posted on UN Website
International Financial Aid
Total Budget (3 years) - 56,3 USD
Voluntary International Contributions - $43 M
Currently around $38,7 promised (UE?)
Cover cost of international staff
Contribution by Cambodia - $13,3 M
Cost of Cambodian staff 1 premises
Cambodia will not pay all this
The rest from Bilateral aid (UE…) / leftover UNTAC funds
Jurisdiction
Subject matter jurisdiction
Personal jurisdiction
Temporal Jurisdiction
Territorial jurisdiction
Subject matter jurisdiction
International crimes :
Genocide;
Crimes against Humanity;
Grave breaches of the 1949 Geneva Conventions;
1954 Hague Convention on protection of Cultural Property;
1961 Vienna Convention on Diplomatic Relations (EC Law, Arts. 4 to 8).
Serious crimes under Cambodian law
(1956 Penal Code): homicide, torture, religious persecution (EC Law, Art. 3).
Genocide
Definitional issues (Art. 4)
as defined in the Genocide Convention
"such as"
Punishable acts: genocide, attempt, conspiracy and “participation” (not direct and public incitement)
Crimes against Humanity
Definitional Issues:
2003 Agreement, Art. 9 : ICC definition
EC Law, Art. 5 (ICTR):
"…any acts committed as part of a widespread or systematic attack directed against any civilian population, on national, political, ethnical, racial or religious grounds, such as:"
Personal jurisdiction
The CEC have personal jurisdiction over two overlapping groups of people (EC Law, Art. 2):
Senior leaders of Democratic Kampuchea ; and
those who were most responsible for the crimes coming within the jurisdiction of the CEC
Personal Jurisdiction (II)
Estimates of the number of people falling within these criteria vary, however, the CEC will not have a sufficient budget to try large numbers of people.
Two people are currently in pre-trial detention:
Chhit Choeun (Ta Mok), a former military commander ;
Kaing Khek Iev (Duch), director of Tuol Sleng
Leaders
Pol Pot (dead)
Nuon Chea
Ieng Sary (amnestied)
Khieu Samphan
Ta Mok
Duch (Kaing Kek Euv)
Mam Nay
Brother Number 1
Brother Number 2
Foreign Affaires
President
Military (in prison)
Director of S21 (in prison)
S21: interrogations
Temporal Jurisdiction
The temporal jurisdiction of the CEC is strictly limited to the period from 17 April 1975 to 6 January 1979, during which the Demoicratic Kampuchea regime was in power.
Territorial jurisdiction
The territorial jurisdiction of the CEC is not specified
The Chambers will thus have to decide whether
to try all the crimes coming within their jurisdiction, regardless of where they were committed (as in Sierra Leone), or
to apply existing Cambodian law, which appears to restrict jurisdiction to crimes committed in Cambodia.
Procedure
Cambodian law (this may include the draft Code of criminal procedure currently under discussion if it is adopted in time).
However, the CEC are authorised to seek guidance in ‘procedural rules established at the international level’ where Cambodian law ‘does not deal with a particular matter, or where there is uncertainty regarding the interpretation or application of a relevant rule of Cambodian law, or where there is a question regarding the consistency of such a rule with international standards’ [2003 Agreement, Art. 12(1)].
Internal Rules to complement applicable Cambodian Law?
Principle
Respect for the spirit of applicable Cambodian procedure
Adapt for participation, pre-trial appeals, victims…
Means
Adoption as law
Adoption by the judicial staff.
Adoption of the new Code of Criminal Procedure as the applicable law.
Specific procedural issues
Previous attempts to try KR (non bis)
1979: PRK Popular Tribunal to try the Pol Pot-Ieng Sary clique
Amnesties and Pardons (EC Law Art. 40) no request in future but previous acts open to doubt
1994 Anti KR Law
1996 Amnesty for Ieng Sary
Statute of Limitations
Excluded for genocide and Crimesa gainst humanity
War crimes etc. ?
Extended by thirty years for domestic crimes
Extradition requests
Role of Victims
Participation
Representation
Protection
Reparations
Participation
EC Law - ambiguous references to victims
Cambodian procedure
Appeals by Accused, procesutor & victims - Art. 36
Rights of accused v. protection of victims - Art. 33
Under Cambodian law, victims have right:
to file complaints and appeal decisions not to investigate
to be joined as civil parties to criminal proceedings, in order to participate in the trial and claim damages.
Organising Participation
Possible collective solutions to large numbers of victim claims or actions:
Widened admissibility of legal action by associations.
collective exercise of victims’ rights by persons having comparable claims
Allowing associations to file complaints and requests for civil party status on behalf of victim groups.
Representation
Issues:
The right to the aid of counsel of choice,
admitted to a foreign or Cambodian Bar,
under the same conditions as the accused.
Organisation (possible ICC inspiration):
Allow Extraordinary Chambers to request victims having comparable claims to choose a common legal representative.
Creation of a public counsel service to facilitate organisation of victim and defence representation.
Protection issues
Protection of all “victims” who participate in the trials (VWUnit): witnesses, complainants, civil parties, and their representatives. (art. 33)
Application of all the protection measures available to victims before ICC.
Jurisdiction over offences relating to “coercion” of witnesses and contempt proceedings
Reparations issues
Allowed under Cambodian law (civil parties)
Extent of power of the Extraordinary Chambers to grant individual and collective reparations, as recognized at the international level: restoration, compensation, rehabilitation, satisfaction and guarantees of non-repetition.
Creation of a Trust Fund in favour of victims to receive both property confiscated from those persons found guilty and voluntary contributions.
CONCLUSION

Tuesday, May 1, 2007

Compensating KR victims/PP Post

Compensating KR victimsI have read "Cry for justice soon to be heard" (Post, June 16, 2006) with great interest. I would like to share my thoughts on the issue of compensation.The Extraordinary Chambers in the Courts of Cambodia (ECCC) are now preparing cases against senior Khmer Rouge leaders. At this point, it is not appropriate to raise the issue of compensation because it can cloud the meaning of justice.Stating that "by law in other countries, victims not only get justice, but also compensation" could jeopardize victims' expectations of justice, reconciliation and the rule of law. From my own observations, it seems that most of the victims of the Khmer Rouge are not motivated by the possibility of receiving compensation; most of them simply want to see justice done.It is true that in European systems, victims of crime can pursue claims of compensation during criminal trials. In common law systems, victims can pursue separate tort suits in parallel with criminal proceedings. Even the ICC has provisions allowing for monetary reparations for victims. However, several other factors suggest that it is not appropriate to raise the issue of compensation at the moment:
To date, no precedents have been set about compensating victims of genocide.
Both international law and customary international law say little about compensating victims of such international crimes as genocide and crimes against humanity. However, international law is increasingly addressing the right of victims to "reparations." This invites judges to decide on how to calculate damages and how to pay for them by taking into account all factors behind the crimes. It also allows them to be creative about nonmonetary forms of reparation, such as memorials and days of remembrance.
Determining the number of victims and calculating the total compensation - especially after 27 years - would be a nearly impossible task. Further, it is not likely that the ECCC will be able to afford compensation for all of the victims of Cambodia's genocide.
During Democratic Kampuchea, millions of Cambodians died and vast amounts of property were destroyed or seized by the Khmer Rouge. It will be impossible to return most of this property to its rightful owners given the passage of time, although the ECCC might be able to do so in certain instances.
While the Law on the Establishment of the Extraordinary Chambers is silent about compensation, this doesn't mean that there is no way to make compensation available. Article 39 of the amended ECCC Law does reference the confiscation of property that Khmer Rouge leaders gained from illegal acts between 1975 and 1979, and dictates that "[t]he confiscated property shall be returned to the state."Article 39 opens the possibility for compensation within the legal framework of the court. Thus, people can submit a request to the government at the time when it can really receive the confiscated property or money as stated in Article 39 to make symbolic compensation to the victims by using that money, for example, to build a national center for traumatized victims to get treatment free of charge.To close, seeking compensation at this point may distract us from the most important contribution the ECCC can make: providing justice to victims by ending the impunity of the senior leaders of the Khmer Rouge.Dara Vanthan - Documentation Center of Cambodia

CHRAC Comments on the Rules

To the Distinguished Members of the Second Plenary Session of the Extraordinary
Chambers in the Courts of Cambodia:
The Cambodian Human Rights Action Committee is pleased to note that the Draft Internal Rules
for the ECCC (“Rules”) include a number of very positive developments that can set a good
example for Cambodian law generally. CHRAC welcomes the opportunity to give comments and
believes that involving civil society in this historic process will only make the Extraordinary
Chambers stronger.
Given the short period of time to comment, and the Cambodian holidays, CHRAC reserves the
right to make further comments at a later time. In addition, CHRAC would like the ECCC to
ensure that NGOs are involved in the drafting subsequent rules or amendments to these procedures
to the greatest extent possible.
CHRAC has nine main areas of concern regarding the ECCC Draft Internal Rules:
1. The additional power of the Pre-Trial Chamber
2. The nature of supermajority voting
3. Protecting defence rights
4. Ensuring meaningful victim participation, protection and reparations
5. Providing widespread public access to reasoned decisions of the Court
6. Preventing in absentia trials
7. Clarifying the role of the Constitutional Council
8. Guaranteeing high quality interpretation
9. Protecting ECCC personnel, victims, witnesses, and accused from defamation and libel
actions in the Cambodian courts.
Some other comments regarding specific rules are also attached.
Finally, CHRAC notes significant differences in the English, French and Khmer versions of the
Rules that were provided for comment. CHRAC is hopeful that when final rules are adopted a
faithful translation will be provided.
CHRAC looks forward to working constructively with the ECCC in coming years and
wishes the Plenary success in the days ahead.
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1) The Pre-Trial Chamber
Rule 21 and 74. Additional Jurisdiction of the Pre-Trial Chamber
CHRAC would like to see the Chambers adopt the most streamlined procedures possible that are
consistent with the ECCC Law, ECCC Agreement, and rights of the Defence.
However, CHRAC is very concerned that the current Rules allow the Pre-Trial Chamber to block
cases from going forward. It would be a tragedy for justice in Cambodia if an Investigating Judge’s
decision to indict was blocked in a secret hearing of the Pre-Trial Chamber -- especially if this could
be achieved by a minority of judges.
As such the PTC should have the power:
• To resolve disputes between the co-Prosecutors and between the co-Investigating Judges as
laid out in the Agreement.
• To oversee the conduct of the investigations as set out in Rules 74.3.b - e.
• To resolve conflicts between the office of the co-Investigating Judges and the office of the
co-Prosecutors about which individuals and crimes to indict. (Rule 74.2)
• To review appeals by the accused relating to provisional detention and bail. (Rule 74.3.f).
But those decisions should be final and not reviewable at the Trial Chamber or Supreme
Chamber (Rule 80.5). The IRs currently set out four levels of review over detention
determinations; this is unnecessary to protect the rights of the detained.
The PTC should not have the power:
• To resolve jurisdictional questions related to the entire ECCC. Questions of legality and
jurisdiction are of fundamental importance; they should go to the Trial Chamber with appeal
to the Supreme Chamber. (Rule 74.3.a)
• To review challenges to the indictments made by the accused. It is CHRAC’s understanding
that the Rules require co-Investigating Judges to notify the parties when they have
completed their investigation. Their file would be made available to the parties and subject
to appeals. However, once the final decision to indict has been made, that decision should
not be reviewable by any Chamber. Yet, CHRAC takes note of the Theory of Complex
Indictments -- therefore, if the final indictment resolves multiple issues (such as the decision
to not to return property to the defence) those ancillary issues can be resolved by the Pre-
Trial Chamber, while the case presented in the indictment goes forward to trial.
The principle concern is that the Pre-Trial Chamber not be permitted to stop cases from going to
trial.
Rule 77.5. In camera proceedings of the Pre-Trial Chamber
CHRAC urges the ECCC to adopt procedures that require the Pre-Trial Chamber to be open to the
public.
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2) Supermajority Voting
Rule 16, 18 and 77. Decision-making by Supermajority
In footnote 9 and Rule 77.9, the rule drafters clearly perceive the problem of having a supermajority
voting system on issues other than guilt or innocence -- for non dispositive issues there are two
conflicting interests set out in the Agreement: 1) the prosecution going forward and 2) the rights of
the defence.
CHRAC supports the proposal that in case a supermajority of judges do not agree (on issues other
than guilt or innocence), the prosecution shall proceed. The supermajority was not intended to be
used as means of hindering and blocking further investigations or proceedings. CHRAC is of the
opinion that the rights of the defence are protected because the supermajority voting system in
decisions of guilt or innocence are weighted in favor of the defence.
3) Defence Rights
CHRAC is concerned that the Extraordinary Chambers adequately protect the rights of the
defendants. NGOs in Cambodia are hopeful that this court will provide a model for the proper
treatment of suspects, charged persons, and accused in the criminal process.
Rule 12. The Defence Counsel
The Rules should make clear that foreign lawyers, acting as co-lawyers, can work efficiently and
independently of their Cambodian counterparts. The Rules should not require Cambodians to act as
“lead” lawyers. If registration with the Cambodian Bar Association is required, there should be no
limitations or conditions placed on foreign lawyers. If a list of authorized Defence Counsel is
created, the Rules should specify a minimum number of people on the list in order to ensure true
choice of representation.
Rule 26. Statements Obtained by Coercion
CHRAC welcomes the provisions of Rule 26.3 preventing physical coercion or threats thereof.
However, the Rule should clarify whether, if such statements are obtained, they can be used for
other purposes, such as indictments. CHRAC’s position is that statements obtained by coercion
should not be used for any purpose.
Rule 29. Waiver of Right to Counsel.
The Rules should include a standard: that waiver of the right to counsel must be voluntary and
informed.
Rule 33 and 88.1: Questioning of the Accused.
The Rules do not define “witness” and so it is not clear whether Rule 33 applies to accused who are
testifying. Rule 28.4 suggests that the term “witness” does not include the accused -- which means
there are no standards to protect the rights of the accused against self-incrimination.
The Agreement that created the ECCC explicitly stated that the ICCPR should be followed with
respect to defence rights. ICCPR 14.3.g states that the everyone is entitled to the right, “not to be
compelled to testify against himself or to confess guilt.”
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The Rules, which permit judicial questioning of the accused, would violate this right. The accused
should be told of their rights under the ICCPR, and should be allowed to refuse to answer questions
posed by the judges or Prosecutors or lawyers for civil parties.
Rule 34. Secret Witnesses
Secret witnesses have often been linked to governmental abuse. Resolution of this issue calls for a
delicate balancing test between the rights of the defendant and the security of witnesses. CHRAC
encourages the ECCC to adopt clearer standards on the use of secret witnesses.
Rule 55. Garde à vue (Police Custody)
The Prosecutors should not be able to question suspects without the presence of their attorney; this
rule permits only a 30 minute consultation period (pre-questioning). Suspects must be apprised of
their right to remain silent and their right to an attorney; the attorney should be present, and
available for consultation, throughout questioning.
In addition, CHRAC recommends that detainees be provided with a medical examination by right
during the Garde à vue. Doctors can ensure respect for the fundamental obligation to prevent torture
by observing the state of health of the detainee before and after detention (Article 12(2) of the
Transitional Provisions; Principle 24 of the Body of Principles for the Protection of All Persons
under Any Form of Detention or Imprisonment). Currently, Rule 55 does not include this
guarantee; it states only that the Co-Prosecutors “may order that the detainee be examined by a
doctor” without the detainee or the family being able to request an independent medical
examination.
Rule 55 and Rule 60. Notification that One is a Suspect
The rules on when a suspect is notified are currently located in several places in the Rules. In order
to clarify this point, CHRAC would like the Rules to adopt a specific standard. Cambodian NGOs
propose that, “A person has a right to be informed, prior to being questioned or as soon as it
becomes evident in the course of questioning, that there are grounds to believe he/she committed a
crime within the jurisdiction of the ECCC.” At that time he/she should also be informed of their
rights to competent counsel free of charge and their right to remain silent.
CHRAC’s position is that this language is required in addition to the protections for witnesses
spelled out in Rule 33.
Rule 80. Provisional Detention of an Accused
Paragraph 1, permitting provisional detention, should be subject to subrule 2, and Rule 66.6.b (the
total period of detention cannot exceed 3 years).
Rule 86. Rules of Evidence
Paragraph 2 says that “Any decision shall be based only on the evidence in the case file, or that has
been before the Chamber and subjected to examination.”
It is unclear whether information in the case file (that the defence was not present for/could not
confront) can be the basis of decision (Rule 59.8). If so, that would contravene the stated aim of
having an “adversarial” process (Rule 26.1.a), and the ICCPR 14.3.e.
The Human Rights
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Committee General Comment on this Rule (14.3.e) states that: “This provision is designed to
guarantee to the accused the same legal powers of compelling the attendance of witnesses and of
examining or cross-examining any witnesses as are available to the prosecution.”
The right (ICCPR 14.3.e) to confront witnesses may not be satisfied at the investigation stage in
these proceedings because the Rules permit the Co-Investigating Judges to first
interview/notify/charge the accused after the bulk of the investigation is complete.
Rule 88.2/ 89.2-3/108.5. Questioning Witnesses in the Courtroom
The co-Prosecutors and Defence lawyers should have the right to fully question the witnesses and
accused (if called by the Defence) without seeking the permission of the court. This is a necessary
element of an adversarial process (Rule 26.1.a).
It would contravene the interests of justice to give the President of the court the sole power to limit
questioning. As a last resort, the Rules should allow the chamber to review questions and should
permit questions to go forward absent a supermajority ruling to block the questions.
Rule 109.4: Effects of the Appeal
The Rules currently allow the Supreme Chamber to review the facts and law where the defendant
has been found “not guilty” by the Trial Chamber; the Supreme Chamber can make the first
determination of guilt without the possibility of appeal. This violates ICCPR 14.5 which reads that,
“Everyone convicted of a crime shall have the right to his conviction and sentence reviewed by a
higher tribunal according to law.” (emphasis added).
Disclosure of Exculpatory Evidence
The Rules should specifically note the requirement that the Prosecution turn over all exculpatory
evidence to the defence at the earliest possible time.
Double Jeopardy
The Rules should specifically note that a defendant cannot be tried twice for the same offense by the
same government.
Ineffective Assistance of Counsel
A defendant is entitled to an attorney with sufficient time and means to prepare his/her defence.
Generally, the law does not require that the defendant’s counsel be given equal opportunity to
prepare a defence as long as the defendant is provided with effective assistance of counsel.
Therefore, ineffective assistance of counsel should be recognized as grounds for appeal -- in order
to protect the equality of arms.
Self-Representation
The Rules should specify whether a defendant can represent himself/herself. The Rules should
specify a standard for judging the competence of the accused. The Rules should also permit the
assistance of counsel (by choice of the accused) in cases where the accused is representing
himself/herself.
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4) Victim Participation, Protection and Reparations
CHRAC applauds the commitment of the Rules to involve victims in the Extraordinary Chambers.
Victim participation will help bridge the gap between the court and the people and will give victims
a voice in this important process. Cambodian victims have been waiting a very long time to see
consequences for the crimes of the Democratic Kampuchea period, and to have answers about why
these crimes happened. The trial process should be responsive to their needs to the greatest extent
possible.
However, CHRAC wants to ensure that victims have a meaningful opportunity to participate in this
historic process. Therefore, the complaint procedure and the victims’ participation through civil
party action need to be reconsidered.
Additional Rules will be necessary to clarify the role of NGOs in facilitating victims participation.
Cambodian NGOs are eager to assist the Court in this manner, to the extent resources permit. We
request that the ECCC involve NGOs in the drafting of regulations regarding the role of NGOs in
this process.
Rule 27. Civil Party Action by Victims
The civil party system, as laid out in the Rules, does not provide a meaningful opportunity for
victims to participate in the process. The practical limitations on the vast majority of Cambodian
victims make submitting a written application, seeking an attorney, even getting to the court, far out
of the range of possibility.
84 percent of Cambodians live in the rural areas where there is currently little understanding of the
ECCC. In addition, illiteracy rates are very high: 45 percent of women and 25 percent of men are
completely illiterate, and 71 percent of women and 50 percent of men are functionally illiterate. 35
percent of Cambodians live on less that $0.45 (U.S.) a day.
These practical limitations can make it difficult for victims of these atrocities to participate in the
ECCC process. The Rules should allow the court to meet victims on their own terms, by creating
procedures that seek out the participation of rural, illiterate Cambodian victims. This should be
among the tasks of the Victim’s Unit (discussed in further detail).
If only urban and diaspora Cambodians have the resources to participate it can lead to the
perception that the Court is for the rich, and is fundamentally unfair.
Rule 27.9 Victims Associations
Rule 27.9 allows groups of victims to participate as civil parties. CHRAC welcomes this Rule.
However, it should be made clear that these associations would not be required to register with the
government, and should not be subject to the proposed Cambodian Law on Local Associations and
Non-Governmental Organizations, which is viewed by many local organizations as limiting the
freedom of local associations.
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Rule 27.12 Creation of a Trust Fund and Procedures for the Administration of the Fund
We consider the provisions of the Rules relating to reparations to be unclear and insufficient. The
reparations process is a key element to the success of the process which ultimately aims at national
healing and reconciliation.
CHRAC encourages the ECCC to consider a Trust Fund on the model of the ICC. In addition, the
Court should attempt to enter into a memorandum of understanding with the government that
confiscated assets will be placed in the Trust Fund (in light of Article 39 of the Law on the
Establishment of the Extraordinary Chambers).
In addition, a meeting of the Rules and Procedure Committee (to be initiated as soon as practicable)
should research options for administering the Trust Fund and set up a “think tank” for elaborating
principles relating to reparations. This “think tank” should be guided by the aspirations of the
Cambodian people and based on the UN 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.
Rule 14. Complaint Registration and Case File Management Unit
As noted above, it is unrealistic to think that a representative number of victims will be able to write
complaints, find lawyers, or deliver their complaints to the court. Other procedures that simplify
the ability of victims to communicate with the court should be considered. CHRAC’s proposal is
spelled out below, regarding the Victims Unit.
Rule 13, 14 and 34. The Victims Unit
Given the rights granted to victims to participate in the ECCC proceedings as complainants and civil
parties, the signatory organizations believe that it is crucial for the ECCC to establish a Victim’s Unit
on the model of the existing Defence Office. Just like the Defence Office, the Victim’s Unit should
enjoy operational autonomy, an ample operating budget and clear missions.
We understand that the initial ECCC budget will need to be amended in this respect and additional
funding needs to be obtained. However, these changes are required in order to comply with the
Rules.
In addition, Cambodian NGOs note that there are two very different functions that will need to be
accomplished to adequately involve, support and protect victims. As such, CHRAC recommends
that the unit be divided into two components.
Creation of a Victim Participation Unit:
Encouraging true, representative victim participation should be among the highest priorities of the
Extraordinary Chambers. If only wealthy, literate, urban Cambodians are able to participate it could
seriously damage the legitimacy of the court for the rest of the population.
Therefore, the Victims Unit noted in Rule 13 should be specifically tasked with going out into the
provinces to register and record complaints and civil party applications from victims. The
possibility of permanent Victim Unit offices in the provinces should also be discussed. This Unit
should be coordinated (or combined) with the work of the Complaint Registration Unit (Rule 14).
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Their main function should be linking the work of the Court to majority of Cambodians who live
outside cities and have limited ability to reach the Court on their own.
Also, because there is no functioning postal system, both units would have to coordinate responses
from the court back to the people. Significant resources will be required to allow these units to
function properly.
Furthermore, if victimization is seen as being tied to a right of compensation, there is a high
likelihood of opportunistic behavior: scams seeking payment in exchange for filing a petition for
compensation or filing false claims. Planning for how to manage these problems should begin now.
Victim’s Protection Unit.
We recommend the creation of a Protection Unit responsible for protective and support measures
for victims or victims and witnesses. Such Unit would be established as part of the Victims Unit
within the Office of Administration.
If the Court does permit high levels of victims’ participation then those victims should also be
provided with necessary protective measures. A strong Protection Unit with appropriate funding is
needed to guarantee the safety of witnesses and victims.
The Protection Unit should have the power to undertake certain measures, such as organizing safe
transportation to and from the ECCC, without seeking orders from either the Co-Investigating
Judges or Chambers. The Rules should also list the necessary expertise of Victims and Witness
Protection Unit staff, with a special emphasis on the need for experts in psycho-social services. In
addition, the Rules should set out special measures for victims of sexual violence, children, elderly
persons and persons with disabilities.
NGO Involvement:
Additional Rules will be necessary to clarify the role of NGOs in facilitating victim participation.
Cambodian NGOs are eager to assist the court in this manner, to the extent resources permit.
CHRAC strongly encourages the ECCC to engage NGOs in drafting these regulations.
5) The Form and Publication of Judgments
Rule 100: Form of the Judgment
CHRAC welcomes the decision of the ECCC to require that judgments of the Chambers include the
findings, setting out the facts and legal reasons supporting the decision, in addition to the
disposition of the Chamber. CHRAC hopes that this will help illuminate the history of Cambodia.
However, CHRAC strongly suggests that the same should be required of dissenting judges, judges
who dissent on the reasoning but concur in the overall disposition, and all situations where the
Chamber is unable to reach a disposition. Rule 100.2 should be modified to say that “where there is
no unanimity, a judge must write the facts and legal reasons supporting their decision in a separate or
dissenting opinion, or sign the opinion of another judge...”
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The interests of justice in Cambodia require that the reasoning of all of the judges is known to the
public, particularly for those judges disagree with the disposition of the Chamber, or fail to reach a
supermajority.
Rule 101. Announcement of the Judgment at a Public Hearing
The announcement at a public hearing will be important. But CHRAC anticipates that the judgment
(and possible separate or dissenting opinions) in these cases will be long. The Rules should also
require the Chambers to publish their opinion and make it available to the public and NGOs within
24 hours of the announcement of the judgment at the public hearing.
Disposition by Confession
CHRAC recognizes that guilty pleas are not a part of normal procedure in civil law systems,
although other international tribunals have accepted them. Nevertheless, where a case is resolved
because the accused had admitted to the crime, the accused should be required to allocute to the full
extent of the crimes. No confidentiality agreements, relating to confessions, should be accepted.
In addition, in conformity with international standards, the judges of the Chambers should be
required to satisfy themselves that the statements of the accused were both knowing and voluntary.
6)
In Absentia
Trials
Rule 79: In Absentia Trials
CHRAC opposes the use of in absentia trials in the ECCC. Cambodian NGOs are aware that there
are some instances where these sorts of trials are permitted. In addition, NGOs are aware that there
is always a possibility that one or more of the potential defendants could flee the country, possibly
to a non-extradition state. And, of course, this would be a tragedy for justice in Cambodia and for
humanity.
However, CHRAC opposes the use of these trials at the ECCC because they will undermine the
credibility of the court, and will not set a good example for the functioning of the ordinary courts. In
absentia trials can be perceived as being political in nature, and lacking appropriate fairness
guarantees.
7) Constitutional Council
Currently, the Rules say nothing about how constitutional issues will be resolved. The Rules should
explicitly note that the ECCC has the power to resolve constitutional issues, and that those issues
need not be referred out to the Constitutional Council.
The Extraordinary Chambers is an extraordinary court within the courts of Cambodia -- and, as a
result, there will need to be allowances for this process to function properly. It is not appropriate
for issues before the Chambers to be referred out to other Cambodian courts, including the
Constitutional Council.
CHRAC recommends that, in addition to modifying the Rules, the ECCC enter into a memorandum
of understanding with the Constitutional Council regarding the resolution of constitutional issues.
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8) Interpretation
Rule 35. Interpreters
High quality interpretation will be one of the keys to the success of the ECCC. Suspects, charged
persons, the accused, witnesses and victims should all be apprised of their right to interpretation
before questioning begins. In addition, Rule 35 should be changed to say that, “In case of need, the
Co-Prosecutors, Co-Investigating Judges, Defence Counsel, or victims’ counsel shall use interpreters. Any
suspect, charged person, accused, witness, or party shall be provided with an interpreter where requested.”
9) Protecting ECCC Personnel, Victims, Witnesses, and Accused from Defamation
and Libel Actions in the Cambodian Courts
In order for the ECCC to function properly, everyone involved must feel free to speak. In
particular, victims and witnesses should not have to fear retaliation by defamation and libel actions.
While false testimony should be punishable, victims’ participation would be adversely affected if
related proceedings did not remain within the jurisdiction of the ECCC.
Therefore, at the very least, the Rules should adopt a procedure ensuring that cases of false
testimony or perjury would not be referred to ordinary Cambodian courts or any other authorities in
the Kingdom of Cambodia, but that all such cases would remain within the exclusive jurisdiction of
the ECCC. Other measures to ensure the freedom of expression of ECCC personnel, victims,
witnesses, and accused would also be welcome.
Other Suggestions:
Rule 10: The Office of Administration
This Rules strikes a good balance between judicial leadership of the court process and the role of the
Office of Administration. However, the Rules should also underline the neutrality of the OoA, and
include the Office of the Principal Defender and the Victim’s Unit as entities to be assisted.
Rule 19. The Judicial Police
The second sentence of first paragraph should be re-written slightly to say that: “They carry out
inquires personally under the sole instructions..”. It should be clear in the rules that Judicial Police
work for the court, and cannot delegate their tasks to others working under them. Others will not
have the training the court will provide Judicial Police to ensure the integrity of the process. See
also Rule 65.
Remote Participation
All of the sections that permit the remote participation of judges should note that remote
participation will only be allowed in exceptional circumstances. Judges need to be present to
properly confer with one another.
This could be fixed by modifying Rule 22 to say that Judges may participate remotely for a short
period, but for no more than five consecutive sitting days.
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Rule 33. Right against Self-Incrimination of Witnesses
Rule 33.b should be mandatory, not discretionary where compelled testimony of witnesses is sought.
Rule 39. Interference with the Administration of Justice
Rule 39.2.a is not clear. What does “deal with the matter summarily” mean? And part (b),
instigating proceedings, in which Chamber?
Contempt procedures need to be spelled out more, with clearly articulated standards.
Rule 53. Exercising Public Action
The normal Cambodian courts give the complainant the right to appeal (to the Appellate Court)
against the decision of the Co-Prosecutors not to charge. The Rules do not foreclose this option, or
provide an alternate appeal mechanism. The current procedures only deal with the right of the
accused in Rule 74.g. CHRAC’s position is that there should be no appeal of the decision not to
make an introductory submission.
Rule 61. Interview of a Charged Person -- Impending death of the Charged Person
This seems unnecessary and creates too much potential to be abused. If a charged person wants to
make a death bed statement, certainly those in the room (including court personnel) can record it.
But no charged person should be questioned without the presence of an attorney if one is requested.
Rule 86. Protecting Confidential Relationships
Attorney-client privilege should be respected throughout the proceedings. Standards setting out that
privilege should be included in the Rules.
In addition, doctor-patient confidentiality should be protected, particularly in the area of mental
health. This is particularly important for victims who participate as witnesses in the trial -- other
tribunals have encountered problems where pychological records have been used to impeach
witnesses who suffered from serious crimes. The ECCC should protect the confidentiality of these
documents in order to respect the privacy of victims and to encourage victims to access
psychological services.
Finally, other confidential relationships (including marital relationships) should be protected as well.
It seems that Rule 28 is attempting to partially manage this concern, but the effect of the Rules in
unclear. Soliciting unsworn testimony could violate the rights of the defence in some instances.
Rule 91. Additional Investigations by the Trial Chamber
Current Cambodian procedure does not allow judges who have acted in an investigative capacity to
rule on the merits of the case. This seems to be based on policy consideration that investigating can
color a judge’s objectivity. As such, Rule 91 should be modified to send requests for additional
investigations back to the Co-Investigating Judges.
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Creation of a Lawyers Unit
CHRAC is interested in ensuring that Defence Counsel and Victims Lawyers are subject to
equivalent selection criteria, receive equivalent pay, provided equivalent training, and meet the same
standards of professional conduct. Creation of a Lawyers Unit, within the Office of Administration,
to manage these issues would help ensure the highest quality representation for all concerned.
We consider that setting criteria specificly for the ECCC would not "limit the rights of Cambodian
lawyers to have access to any court" (as stated in the Draft), especially if the practice directions provide for
different admission criteria for Cambodian and foreign nationals, such as before the Special Panels
for Serious Crimes in East-Timor.