The Victims Unit and the Presumption of Innocence

Following the trail blazed by the International Criminal Court (ICC) the Extraordinary Chambers in the Courts of Cambodia (ECCC) dutifully established a Victims Unit to show that the Court is on the cutting edge of the evolution of international justice. This measure enjoyed the overwhelming support it enjoyed when a similar decision was taken during the negotiations of the ICC’s Rome Statute. There was a difference, however, in how it came to be within the ICC and the ECCC. During the negotiations of the Rome Statute the phenomenon of a Victims Unit was pushed through by a powerful NGO lobby which wielded a significant influence with their governments. During the ECCC process there had been no mention of a Victims Unit until very late into the process. This comparison is instructive to appreciate the fact that while the introduction of this phenomenon was virtually unavoidable in the ICC structure for political reasons, it was very easily avoidable in that of the ECCC the negotiations of which had very different dynamics.
Now, one might ask why this is important and why anyone committed to international justice would want to try to block the process of creation of such a seemingly noble institution. The answer to this question is the existence of a well-known principle of criminal law which is that of presumption of innocence. This principle stands for what it says it stands for: a person accused of a crime continues to be considered innocent until the court finds him or her guilty of the alleged crime. None of other factors matter. In some cases such persons are convicted by the media before they are even arrested and brought to trial; in others they are disrespectful to the court which brings the ire of the public and the judge; yet in others they have a prior criminal record peppered with similar crimes; in other observers comment by saying “they look and act guilty”. Although all these perspectives are entertaining, none of them matter. It is only the perspective of the court that does. Thus, when an arrested person is first brought before the judge, you are looking at an innocent man, woman, or child, not a criminal. When the proceedings against him or her get underway, you are still looking at an innocent person. When the most overwhelming evidence is being presented against this person in court and observers begin to liken it to the famed film shown in the midst of the Nuremberg Trials when everyone in the audience is too choked up to breathe out either of fear and dismay or both when the lights come back on, you are still looking at an innocent person. It is often difficult for the public not to lose track of the presumption of innocence at moments like this.
If the above is the incontrovertible truth on the matter, who would we be referring to as ‘victims’ during this entire time until the court pronounces its verdict? If no one is guilty of a crime yet, how can there be persons who are already recognized as victims of something we do not know to be a crime? Provided these persons have information which the prosecution believes has probative value, they can be invited or subpoenaed to court in which case they should be called ‘witnesses’, not ‘victims’. Who exactly are the so-called ‘victims of the Khmer Rouge’ in this day and age when the 1979 proceedings which found the entire regime to be criminal have been widely decried as farcical and the supposedly fair proceedings which are now underway have yet to result in a single verdict, be it a conviction or an acquittal? How do we know the regime was criminal if not a single one of its top functionaries has been convicted of a crime in fair criminal proceedings? The answer is simple, we don’t. It is up to the Court to rule on the guilt or non-guilt of those five who are presently in the dock. It is, however, much easier for the general public to simply assume that what most historians and the lore have been telling us for years is true and that those in the dock are guilty and everyone who had lived through the regime is a victim. If that is the intended perception of these proceedings, the Court’s work is a colossal waste of time and money which after this much of both spent might be hard for some to stomach. We can, however, recognize that the general public’s bias is the general public’s business which does not constitute a crime but merely evinces ignorance of the law.
However, this becomes an entirely different matter when the Court validates this perception by establishing a Victims Unit through which the Court is essentially telling the public that the Khmer Rouge was criminal as a regime and that there were victims and that there were perpetrators who will doubtless be found guilty by the Court after some necessary and protracted legal theatrics of gauging exactly how guilty these persons are. The Court is consistent in this approach throughout: in its Internal Rules (IRs) it presumes that there are victims regardless of the outcome of the proceedings and that such victims are entitled to collective reparations. This approach of the ECCC has in principle enjoyed broad-based support as everyone in the know instantaneously comfortably forgot about the presumption of innocence the accused must be able to enjoy (some NGOs continue advocating for fair trial rights and further development of the Victims Unit are too ignorant to understand that they are advocating for mutually exclusive things) and threw the weight of their support behind the Unit.
Had reasonable foresight and knowledge of the criminal law been at the disposal of those who took the decision to create the ECCC’s Victims Unit, they would have done it differently with the level of deference due the presumption of innocence. One such way of doing this could have been by outsourcing the services presently provided by the Victims Unit to an NGO or coalition of NGOs which specialize in victim support thus placing this assistance outside the Court. To this end a budgetary line could have been introduced with a caveat which releases the funding only in case of a guilty verdict for which res judicata has been reached and which recognizes victimhood. Further details could have been fleshed out as necessary. These services would only be activated after such a verdict would have been handed down by the court.
Instead, the Court chose the less complicated and more populist road and decided to bend the presumption of innocence and traded it for looking more ‘victim’-friendly. The Court assumed that no one would notice the switch and no one did. The non-lawyers who participated in the elaboration of this unfortunate idea can be given a pass as they didn’t know better; the lawyers, on the other hand, are blameworthy and complicit in the erosion of human rights which are today available to the accused in these proceedings.