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.