New Publication: Victims’ Reparations Claims and International Criminal Courts

IncompatibleValues?

Liesbeth Zegveld

Abstract

This article examines the emerging practice on victims’ claims for reparation in the context of international criminal proceedings. International criminal courts have followed the model of domestic jurisdictions allowing criminal courts to order compensation by the convicted person to the victim.Yet, remedies for victims in domestic criminal courts function far from optimally. Domestic courts face various problems, relating to technical questions of civil law concerning applicable law, evidence and

statute of limitation. These civil law problems often prevent domestic criminal courts from ordering compensation, referring victims to civil courts instead to obtain reparation. The question arises how international criminal courts handle the obstacles inherent in civil law claims that are examined during criminal proceedings.

Cambodian Schools Reopen History's Wounds

VOA

Between 1975 and 1979, as many as two million Cambodians were murdered, starved, or worked to death as the ultra-communist Khmer Rouge tried to build a rural utopia. Many older Cambodians are haunted by vivid memories of this time.

But for the young who make up most of the population, learning this history has been hard to do - schools have up to now just not taught it.

A high school in the southern town of Kampong Trach is at the front of efforts to teach - for the first time - the history of the Khmer Rouge. The school is using a new textbook called "A History of Democratic Kampuchea (1975-1979)".

History teacher Bin Cheat says his students only know a little about the Khmer Rouge from their parents, many of whom suffered under the regime.

Bin Cheat says students have been enthusiastic about the new classes.

As a boy, he was stuffed in a sack and nearly beaten to death by Khmer Rouge soldiers simply for letting air out of a car tire. He says it is important students learn about the Khmer Rouge era - and stories like his own - before it is all forgotten.

The new textbook book was put together by the Documentation Center of Cambodia, a non-profit group tasked with recording the years of mass killing under the Khmer Rouge.

The center's director, Youk Chhang, says older history books simply ignored the Khmer Rouge era, with the exception of a brief mention in one book.

"They learned from '45 through '75 and they jumped to 1990, they jumped that period," he said. "After a long public debate they had a photograph of Pol Pot and exactly two lines in Khmer saying that Pol Pot is responsible for the death of 3.3 million Cambodian people. That's it."

Youk Chhang says it took 13 years from the new book's conception in 1996 to get it into schools. Distribution began late last year and the plan is to have one million books in schools and 3,200 teachers trained to use it by the end of this year.

He says getting the book approved was hindered by the fact that most former Khmer Rouge went unpunished and are now found at all levels of Cambodian society and politics.

"In the classroom I can assure you that at least 30 percent are the children of former Khmer Rouge, another 70 percent are the children of the victims," he said. "Among these three thousand teachers I can assure you almost 25 to 30 percent are former Khmer Rouge themselves. This is a broken society, it is a fragile society, so I think you have to live for the future, commit for the future, teach for the future."

At the school, 17-year-old Ny Pagnavuth says he never knew much about the Khmer Rouge. He says he was shocked to learn that when the Khmer Rouge took power, they emptied out the capital Phnom Penh at gun point and sent millions of people, including the old and sick, to toil in the countryside.

The story of that forced march has long been taught around the world as a brutal prelude to the Khmer Rouge's terror. Now, Cambodian students can finally learn the full story of their country.

Some Consistency in Policy Approach, Please! We Can't Be Both: We Either Support the Rule of Law and Human Rights Or We Don't

 

Candidate Obama ran, in part, on overturning the Bush Administration policies which were perceived as being in contravention of the US Bill of Rights and human rights as they are understood on the international legal plane. President Obama began delivering on that promise by addressing one of the most poignant issues of the US policy known as the War on Terror, US government-sanctioned torture. To this effect President Obama ensured the highly controversial release of documents collectively known as “torture memos” but stopped short of ordering investigations into the conceptualization and implementation of the torture policy which could have led to subsequent prosecutions. The Obama Administration explained this approach by issuing the following statement: “This is not a time for retribution. It is a time for reflection. It is not a time to use our energy and our time in looking back and in a sense of anger and retribution”. This approach was reportedly adopted from a Department of Justice (DoJ) memo which urged the Administration not to call for the prosecution of DoJ lawyers who had written legal briefs justifying the use of torture at the behest of the Bush Administration. The only punishment potentially faced by the three architects of the “torture memos” – John Yoo, Jay Bybee and Steven Bradbury – is an internal reprimand (by state bar associations (which was later discarded as a punishment option altogether) with the harshest sanction recommended being disbarment)) which might be a result of a report (it is important to note that the report in question was commissioned by the Bush Administration, not the Obama one) conducted by the DoJ’s Office of Professional Responsibility which has found the architects of the “torture memos” of “poor judgment and failure to provide reasonable legal advice”, not of “conspiracy to violate US and international laws against torture”. John Yoo and Steven Bradbury worked for Jay Bybee who then was head of the DoJ’s Office of Legal Counsel; Jay Bybee reported directly to US Attorney General Alberto Gonzales who served in his other capacity as Counsel to the President. Obama assured the above that no prosecutions based on the content of the “torture memos” would be conducted, but only after he first assured the functionaries of the agency which requested the production of the “torture memos” by the Office of Legal Counsel in the first place by making an appropriate request to the President and then implemented the “torture memos” once they were issued and passed on to this agency through the John Yoo + Steven Bradbury – to – Jay Bybee – to – Alberto Gonzales – to – the President – to – the agency chain of custody. This agency was the CIA and Obama was quick to assure it that none of its staff would be prosecuted (he then however retracted his statement, in part, stating that it was not the President’s job to prosecute crimes but that of the President’s Attorney General Eric Holder to whom he, Obama, would defer on all matters relevant to prosecution; this retraction notwithstanding, a clear message had already been sent by the Obama Administration to everyone – no prosecution would be held). Obama further stated that no prosecution of the rank-and-file CIA and otherwise functionaries would be initiated either as, in his opinion, these persons deserved immunity from prosecution for having been “misled” by the DoJ. As of today, the Obama Administration has not prosecuted – or reprimanded in any way – anyone implicated in the “torture memos” scandal (Spain and Germany were the only countries which initiated the prosecution of the group known as "Bush’s Six"). It is particularly instructive to see this inaction of the Obama Administration against the backdrop of response to the “torture memos” from the US legal academia: Dean of Yale Law School and former Assistant Secretary for Human Rights Harold Koh called it “perhaps the most clearly erroneous legal opinion I have ever read”; former Nixon Administration counsel John Dean refers to the memos as tantamount to evidence of a war crime.

After having disregarded these esteemed opinions Obama heads over to Oslo to accept a Nobel Peace Prize (which the Obama Administration has been hard at work trying to spin how an Illinois senator with no record of international work deserved since then) where he delivers an acceptance speech outlining his administration’s human rights policy and stating that “in some countries, the failure to uphold human rights is excused by the false suggestion that these are Western principles, foreign to local cultures or stages of a nation’s development […] I reject this choice”. One could not help but wonder what the Obama Administration’s excuse for not upholding international human rights in the case of Gonzales’ team might be other than political expediency.

In the same breath the Obama Administration ratchets up its financial contribution to the ECCC which was established to prosecute some of the exact same crimes which were committed by US government functionaries of the Bush Administration and which the Obama Administration now refuses to prosecute. Let’s unpack this comparison. A group of scantily (Pol Pot was a community college dropout) educated Maoists bring about a regime which deals with political opponents through intimidation, torture, and execution. If zeroed in on Democratic Kampuchea (Cambodia’s official name under the Khmer Rouge regime)’s methods of torture recently examined in Case 001 by the ECCC one will find that waterboarding was a torture technique widely used in Democratic Kampuchea. Democratic Kampuchea had no lawyers or an office of legal counsel within its structure the creation of which was precluded by the regime’s determination to “smash all vestiges of the oppressive capitalist regimes of the past”; international law, according to Democratic Kampuchea government, was part of those “capitalist regimes”. In the US, we are looking at a very different group of individuals advising on policy: they all come from the nation’s top law schools (Yoo – Harvard; Gonzales – Harvard; Bybee – Brigham Young University; Bradbury – University of Michigan) who produced policy advice (“the torture memos”) which sounded as if they had never heard of international law or as if they had believed that it was elastic to a point that it could be stretched to justify virtually any policy decision. Let us not make any mistake, the CIA – down to its lowest level agents – did not believe waterboarding was compliant with international law; the CIA, however, had a clear interrogation strategy which needed legal validation for which they went – through the President – to the DoJ. The yes-men of the DoJ – Gonzales, Yoo, Bybee, and Bradbury – did exactly what they were expected to do: they begged, borrowed, and stole, in a manner of speaking, to find ways of forcing international law onto the interrogation policy blueprint designed at the CIA. They knew exactly what they were doing but they also knew that the day of reckoning would never come for them as it never came for their numerous predecessors. The rank-and-file CIA and army interrogators, albeit not as well educated as Gonzales’ team, were also fully aware that waterboarding could not possibly be within the meaning of permissible interrogation methods under international or US laws. The Obama Administration curiously chose not to prosecute them but to up their contribution to prosecute persons for the same (as well as other) crime in a small developing country halfway around the world which is presently prosecuting members of a long defunct and intensely discredited regime. The Obama Administration therefore attempts to lead us to believe that on some level the US taxpayer’s money is better spent prosecuting retired agrarian communists than spent to prosecute Gonzales’ team at home. A simple analysis will demonstrate that the Obama Administration’s prosecution of Gonzales’ team would be a much more viable tool of US policy than supporting the prosecution of Pol Pot’s team: (1) it would show that by promoting the rule of law in other countries the US means what it says, i.e. everyone is equal before the law and everyone is equally accountable under the law; (2) it would combat impunity at home (the ECCC adds nothing to combating impunity in Cambodia as Cambodians understand that the Khmer Rouge is “a fallen elephant” that anyone can strike a blow at now that it is down and its biggest backer, China, won’t come to their rescue); (3) the trials would be cheaper (it might be surprising by it is correct, justice is cheaper in the US than it is at the international level: the ECCC promised us to deliver justice for $56 million four years ago; their current annual budget is creeping up to that amount and the promise was broken a very long time ago; after 4 years of operation the ECCC has managed to hold one trial for which there has yet to be a judicial decision); (4) American money would be spent in America to pay Americans and to deliver justice for Americans (justice delivered in Cambodia has little or nothing to do with the US). The US supporting the prosecution of criminal acts and human rights violations far from our borders while simply forgiving – or not going far past “hot talk” in any event -- them at home conjures up one word in the mind of a conscientious policy thinker – travesty.

Policy on the rule of law and human rights does not have to be perfect but it has to make sense beyond the political expediency of the day, Mr. President.

Tribunal Process Remains Under Threat: OSJI

By Sok Khemara, VOA Khmer

Original report from Washington

29 March 2010

The UN-backed Khmer Rouge tribunal has been compromised by the court’s inability to try further leaders of the regime and by the refusal of senior officials to participate as witnesses, a monitoring group says in its latest monthly report.

Both scenarios are the result of political interference in the court and violate the UN-Cambodia agreement of cooperation, the Open Society Justice Initiative said in its March report on the tribunal.

“If government officials or court officers refuse to cooperate with such steps, the UN, the donors, and the key international officers of the court must make it clearly and publicly known that such interference or refusal of cooperation is a violation of the Agreement and the principles that govern fair trials consistent with international standards,” OSJI said.

OSJI urged the UN to create a top post to aid the tribunal and appealed to the UN, donors and the international community to prevent violations of the agreement, signed between to the two sides at the onset of the tribunal.

“The safeguards against political interference included in the Agreement are useless if international officials do not implement them when they are most needed,” OSJI said.

The OSJI report follows speeches by Prime Minister Hun Sen warning of political instability if the scope of the court expands beyond the five leaders currently in custody, and as key witnesses in the prime minister’s Cambodian People’s Party refuse to answer witness summonses.

International and Cambodian prosecutors found themselves at odds last year over whether to indict five more Khmer Rouge leaders.

Cambodian prosecutor Chea Leang echoed Hun Sen’s statements, saying more indictments could destabilize the country. Observers have said that question is not strictly related to the prosecution’s judiciary mandate.

OSJI said political interference, corruption and funding shortfalls could cripple the tribunal, a multi-million dollar effort that took years for the UN and Cambodia to negotiate.

However, tribunal spokesman Lars Olsen said the working environment and cooperation at the court was “very good.”

Phai Siphan, a spokesman for the Council of Ministers, denied any government interference in the court, and he said critics of the process were hurting the tribunal.

“That’s their political goal,” he said. “That’s why they attack the government as well as the court.”

One Khmer Rouge cadre, the prison chief Kaing Kek Iev, has already been tried, and four more leaders were quickly arrested and are awaiting trial, Phai Siphan said, proof of the government’s willingness to cooperate with the UN and to try former leaders.

“Misunderstandings” have been solved at the court, and cooperation was deepening, he said. “We already know there were some differences [between Cambodian and UN court officials], but we looked at the mechanisms and looked at the law regarding resolving the differences, and then utilized those. There’s nothing wrong.”

Cambodia and the UN say they now need $85 million to continue the tribunal process in 2010 and 2011, especially for the upcoming trial of leaders Nuon Chea, Khieu Samphan, Ieng Sary and Ieng Thirith.

Donor countries have agreed to the budget but have not pledged funding yet. Olsen said he was confident the funding would come through.

Patricia O’Brien, UN Under-Secretary-General for Legal Affairs, is expected to visit Cambodia in coming days to begin regular tribunal discussions with government officials, Olsen said.

Tribunal ‘Accelerating’ Work for Trials: Prosecutor

By Kong Sothanarith, VOA Khmer

Original report from Siem Reap

30 March 2010

Prosecutors are speeding up their work in the second case of the UN-backed Khmer Rouge tribunal, a court official said Sunday.

The court was working quickly and efficiently, UN prosecutor Andrew Cayley told a group of teachers in Siem Reap, where he spoke during training of a new history book for schools.

The prosecution is moving toward the 2011 trial of at least four detained leaders, Nuon Chea, Khieu Samphan, Ieng Sary and Ieng Thirith, following the conclusion of the trial of Kaing Kek Iev, or Duch.

Cayley said work was going well with his Cambodian counterpart, Chea Leang.

“I am accelerating, along with my colleague, the work as much as we can,” he said.

Tribunal observers have voiced concerns that aging Khmer Rouge leaders might die before they see a day in court. Cayley said Sunday he shared those concerns, but added the trials would continue even if some of the defendants die.

“This trial will come to a conclusion,” he said. “But the best way to do this work is not quickly but efficiently.”

Cayley was addressing nearly 200 teachers from across the country who came to Siem Reap to learn to introduce a history book from the Documentation Center of Cambodia into their courses.

The book, “A History of Democratic Kampuchea,” is part of a collaborative effort between the Documentation Center and the government to introduce Khmer Rouge histories into classrooms.

US To Provide $5 Million to Tribunal

By Kong Sothanarith, VOA Khmer

Original report from Phnom Penh

01 April 2010

US Ambassador for War Crimes Stephen Rapp told reporters Wednesday the US would provide $5 million the UN side of the Khmer Rouge tribunal, a marked increase from contributions in 2009.

Rapp is on a two-day visit to Phnom Penh, where he met with government officials, NGOs, donor representatives and tribunal officials.

Last year the US provided $1.8 million to the UN side, to assist in operations at the hybrid court, but Rapp said Wednesday more funding followed “continued progress of the court.”

The money reflected US hopes to see the tribunal through to its conclusion and help Cambodia “build a society based upon the rule of law.”

Tribunal officials have estimated a need of $42 million to fund operations in 2010.

“This is very significant contribution to make sure that the court can complete its mandate in bringing justice to the people of Cambodia, and we hope that more countries will follow the example of the US,” tribunal spokesman Lars Olsen said.

However, he added that money was needed “both on the national and international sides.”

Rapp met with Council Minister Sok An, who oversees the tribunal for the government. A spokesman for Sok An said Rapp had agreed to press Japan and South Korea to contribute to the Cambodian side of the court.

Cambodia to Preserve Khmer Rouge Sites

Cambodia will turn 14 sites used by the murderous Khmer Rouge regime into tourist attractions. Among them are ammunition warehouses and the homes that were used by leaders of the Khmer Rouge, the regime that killed upward of 1.7 million Cambodians during its rule from 1975 to 1979.

The sites are mostly found around the jungles near Anlong Veng, a former Khmer Rouge stronghold 180 miles north of the capital of Phnom Penh and home to many killing fields. A focal point will likely be the cremation site of Pol Pot (above), the Khmer Rouge leader who died under house arrest in 1998 near the Chong Chom border crossing to Thailand.

The cabinet of Cambodia's prime minister, Hun Sen, which approved the plan, said the goal is to allow ''national and international guests to visit and understand the last political leadership of the genocidal regime.''