Victim Participation and Access to Justice Issues at the ECCC
Victim Participation and Access to Justice Issues at the ECCC
Editorial
Stan Starygin
From the very day when the location of the ECCC was switched from centrally located Chakhtomukh Theater to a thirty minute (in light traffic) ride from downtown Phnom Penh, it has been clear that access to the tribunal wouldn’t be the same. Being located right on the most popular congregation area on the Tonle Bassac River, Chakhtomukh Theater-based court would easily attract local and international visitors without making them go out of their way, as the theater is also conveniently located within a short ride from Phnom Penh’s major bus and taxi stations. Now that the ECCC is located this far from downtown Phnom Penh many Cambodians who I had asked whether they would visit the tribunal said ‘no’ because they “don’t have the time to travel this far” and that gasoline – which is a concern for many – “is too expensive” to be easily spent on a trip to the far-flung tribunal.
The issue of distance along with other recently reported hindrances pose a question of access to the tribunal’s justice. The Cambodian Daily (15 August 2007), for example, ran a story about a French Cambodian woman’s journey to the ECCC to explore ways of how she could participate as a victim and resulting in frustration and her return to France. She was quoted as saying that “it [the ECCC] is even more hectic than meeting with the King”.
An attempt was made by the ECCC Internal Rules to carve out a larger space for victim participation than the currently operating UN criminal tribunals have by creating a Victims Unit – which is currently being staffed – and of which close to zero information has been disseminated so far (cumulatively, I asked about 50 people of a fair cross-section of Prey Veng, Takeo, Kompong Speu and Phnom Penh during July and early August whether they had ever heard of the ECCC’s Victims Unit to which none of the respondents gave a positive answer). Although there are other formidable issues that the Victims Unit is now facing (status within the ECCC, budget, staffing, etc), the largest of them seems to be the current fact that it hardly constitutes an effective vehicle for obtaining the remedies sought by the KR victims. Effectiveness of the ECCC Internal Rules’ framed remedy can only be achieved if a. the general population is aware of this remedy, b. the general population is aware of the various ways of obtaining this remedy.
It is hard to imagine why the relevant line of the ECCC budget and significant ECCC outreach-earmarked budgets of a number of civil society groups have, to this date, not been expended to address the issues of access to justice of the tribunal and disseminate the currently available information on victim participation in the proceedings before the ECCC.
posted by Stan Starygin @ 4:54 AM
5 Comments:
Actually, on the funding issue this is not entirely correct. There was a statement made a few months ago by the Information Section of the ECCC that the Victims Unit's share in the ECCC's budget was $600,000. This was recanted by a later statement which alluded to a certain level of uncertainty about the precise budget of VU. Many argued that victims' lawyers would require millions of dollars in legal fees to which the ECCC responded that they were hoping lawyers would agree to work pro bono. This argument has little or no foundation since there is no pro bono culture in the legal profession in Cambodia where salaried lawyer positions in the NGOs are often referred to as "pro bono work". If it is not the tribunal someone else will have to defray the legal costs associated with victim representation.
Further, the Victims Unit is not associated -- well maybe not fully dissociated either, but at least doesn't serve as foundation for -- with the Outreach Section of the ECCC which, to the best of my knowledge, has a clear budgetline and should at this point begin reaching out to the communities. As this is not happening, it is my concern that the lawyers for the victims will get into the fray last and will end up playing a catch-up game with the prosecution and even the currently time-strapped defense.
Actually, on the funding issue this is not entirely correct. There was a statement made a few months ago by the Information Section of the ECCC that the Victims Unit's share in the ECCC's budget was $600,000. This was recanted by a later statement which alluded to a certain level of uncertainty about the precise budget of VU. Many argued that victims' lawyers would require millions of dollars in legal fees to which the ECCC responded that they were hoping lawyers would agree to work pro bono. This argument has little or no foundation since there is no pro bono culture in the legal profession in Cambodia where salaried lawyer positions in the NGOs are often referred to as "pro bono work". If it is not the tribunal someone else will have to defray the legal costs associated with victim representation.
Further, the Victims Unit is not associated -- well maybe not fully dissociated either, but at least doesn't serve as foundation for -- with the Outreach Section of the ECCC which, to the best of my knowledge, has a clear budgetline and should at this point begin reaching out to the communities. As this is not happening, it is my concern that the lawyers for the victims will get into the fray last and will end up playing a catch-up game with the prosecution and even the currently time-strapped defense.
I think you are confusing the proposal in the internal rules with the actual approved budget and staffing table. The IRs propose a Victims Unit and the judges did say at one point that they felt if ought to be budgeted at about 600K. But up to this point there is no Victims Unit in the budget and no staffing. It is one thing to reccomened it, it is quite another to have the donor states and the Cambodian government approve it and come up with the additional funds to support it. The ECCC quite simply has no idea if it will happen or what it will eventually look like.
As to Outreach, it certainly appears the the section has been traveling the country (according to the ECCC website) and the there has been a presence at NGO public forums NGOs on what looks like at least a monthly basis. From what is reported, the Co-Prosecutors, the head of the Defence Section and the Co-Investigating judges have attended public forums in Battambang, Mondukiri, Kratie and many other locations. The public affairs section has been on local radio, TV and seems to be quoted in the local press weekly, if not daily. I doubt they are saying much about victims beyond what is on the website, but how can they when they have no idea what it will look like or even if it will exist?
The entire outreach staff is only 1 Cambodian. (a position advertized a few months ago and I assume filled) Again the budget did not provide any further resources dedicated to this and the SG's report makes it clear that civil society will be a key to spreading the message. I think at one point I remember reading that the outreach had no budget allocated for travel and no vehicle!
You may be right in that the victims lawyers will be playing catch-up but until the court funders decide to give the court the resources it needs, there is little that can be done on the issue.
Perhaps our disagreement on the Victims Unit (VU) provisions stems from treating the IRs differently. I look at the IRs are part of the ECCC foundational law for a number of reasons:
One, it had been a long-standing understanding of all parties involved -- including the RGC -- that judges would flesh out the rules once they were sworn in. It is -- I believe -- for this reason that the Preamble to the IRs cites the 2004 Law on the ECCC as foundation and then plugs each thematic rule into the relevant article or section of the ECCC Law, thus, turning the IRs into an extension of the ECCC Law, similarly to the way statutes are plugged into the relevant articles or sections of a constitution. Thus, being a part of the ECCC Law the section on the VU must create the same effect as the ECCC Law and, arguably, can be violated, if the victims are not given an effective venue of recourse.
Two, the VU, created by the same instrument -- IRs -- as the DSS should be treated in the same manner as the latter, i.e. allocated a budget for, properly staffed, which would enable the VU to put together its own list of lawyers -- similar to that drawn up by the DSS -- and start the preparations for victim participation in earnest.
Three, since the ECCC budget has never been officially released to the public, there's been a fair amount of guesswork floating around as to what is and what isn't in it. Many assumed that there was no budgetline for a VU in the original budget, as no VU at the time of budgetary drafting was contemplated. This state of affairs should have been communicated the judges when they were thrashing out the IRs to encourage the creation of a special funding status for the VU (perhaps, trustfund basis, open to donations from the general public), which was never done. Therefore, at this point, the ECCC's choice either to re-open the IRs negotiations -- which they will never do -- or re-shuffling the budget and carving out monies for the VU while launching a fundraising campaign, as you suggested.
Agreed on the outreach. Various ECCC officials do travel to some parts of Cambodia to do townhall meetings. I was not aiming my comment at their travel schedules or other logistical arrangements. Rather, I take issue with what is being said. On my research trips I keep asking regular folks about what they know about the ECCC and their possible participation in it to which I have not received one substantive response. One of the reasons for it -- as I see it -- is that the various groups that do ECCC-related outreach talk about the nuts and bolts of the tribunal -- which non-lawyers have trouble understanding in this country, leave alone people with elementary school education -- instead of spending the donor-funded time discussing ways of how regular Cambodians can contribute to the tribunal and try to have their grievances redressed. No amount of townhall meetings will save the day, if the content of what is being shared is not properly calibrated.
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