Reparations Arguments Gone Awry

At the appeal hearing of Duch, one of the Civil Parties asked the Supreme Court Chamber (SCC) to change the content of damages ordered by the Trial Chamber (TC) to include the following: (1) to order the convicted person to write two open letters to the Royal Government of Cambodia (RGC), one requesting an apology for the atrocities committed between 1975-79 as Democratic Kampuchea’s successor government and the other requesting that 1/3 of the admission fees collected at the Toul Sleng Museum be diverted to fund the publication of Civil Party materials presented to this court; (2) to order the convicted person to pay for the following: (i) two memorials (at Toul Sleng and Cheoung Ek); (ii) a stupa (at Preh Sar); (iii) visit to these three memorials for the Civil Parties three times a year for a period of four days (presumably until the convicted person’s death); (3) to petition the RGC to have public sites (such as schools, hospitals, streets, etc) named to commemorate the slain relatives of the Civil Parties.

Considering that the mere fact that the Internal Rules (IRs) of the ECCC specifically forbade Civil Parties from seeking monetary compensation, these Civil Parties had to do something within what they felt was not prohibited. The Civil Parties’ position was exacerbated by the fact that the convicted person was indigent and unlike some of his former superiors in Case 002 literally owned nothing besides the clothes on his back (even those are presently supplied by the Court, I believe). The Civil Party counsel felt an obligation towards their clients to ‘make him pay, one way or the other’. Desperation sometimes creates genius but most of the time it is responsible for really bad ideas. The Civil Parties’ above statement belongs with the latter. Let’s take a closer look at what the Civil Parties have asked the Court to order.

(1) Order the convicted person to write a letter to the RGC requesting that the RGC apologize for the crimes of Democratic Kampuchea as the latter’s successor government. Politically this is so untenable, preposterous and unrealistic that it merits no further discussion. Legally – and courts, at least in theory, are supposed to be about law, not about politics – it is a curious request: essentially, the Civil Parties are asking the SCC to compel an entity which is not a party to these proceedings and of whom the convicted person is not an employee (nor was he an employee at the time of the commission of the crimes for which TC found him liable) to apologize for the acts for which the Court has found the convicted person liable. How does this liability attach to the non-party (i.e. RGC)? It does not. Now, in 1988, the US government apologized to the Japanese Americans for the WWII internment and issued monetary reparations. This was a matter of government policy, not a result of criminal proceedings to which the US government was not a party. There is a difference there.

(2) 1/3 of the fees collected at the Toul Sleng Museum must be diverted to fund the publication of Civil Party materials presented to this court. Why would a separate effort to this effect be necessary? Haven’t these documents been published by the ECCC and aren’t they available on the Court’s website (the argument of most Cambodians having no access to the Internet is untenable; it costs anywhere between c20 and c80 and people who want to access it will and those who don’t won’t; hard copy publication is no cure for illiteracy; access to information means making information publicly available, not bringing it into people’s homes)?

(3) Order the convicted person to pay for public projects. The convicted person is a bad guy but he is not a rich bad guy. The convicted person is poor. He has nothing. How do the Civil Parties propose he overcome this to pay reparations? Counsel Silke Studzinsky averred that the convicted person will be encouraged to “find the funds” if the Court permitted the application of the portion of the Cambodian Criminal Procedure Code (CPC) which states that the damages awarded are not extinguished by the convicted person’s service of the sentence of imprisonment (the released convicted person can be re-arrested and re-imprisoned for his/her ability to pay the court-ordered damages). Why raise this issue now? Let’s see if the convicted person lives to be 100 years old or gets paroled before this becomes an issue. Second, what type of fundraising ability do the Civil Parties believe the convicted person has? What specifically can he do? How exactly does Counsel Studzinsky propose he fundraise for the proposed public projects? Internet in his cell? Temporary post-conviction release for fundraising purposes (in a country where local NGOs refuse to fundraise because of the well-entrenched local attitude that NGOs must be funded by Western donors)? Home (prison)-based employment? The Civil Parties added an interesting dimension to this by requesting that there be an international bid for all the memorials? Why does it need to be international (Cambodians do not seem to have a problem building stupas on their own, nor have they in the past)? Is it because the convicted person already has no money to afford the comparatively low fees of Cambodian architects that a possibility of highly paid Western architects needs to be created? Who is going to administer this highly complicated process? Do the Civil Parties suggest that the convicted person start an NGO to this effect and run it from his cell?

(4) Petition the RGC to have public sites (such as schools, hospitals, streets, etc) re-named to commemorate the slain relatives of the Civil Parties. If the SCC were to order this, this would be putting the convicted person in a situation of a murderer asking the government to name public sites after his victims. There are two general problems with this: (1) why would the government listen? (2) why do all victims deserve to have this type of commemoration (normally, public sites are named after persons who distinguished themselves in some way and towards whom there is national pride (or at least the government is trying to cultivate that pride); being murdered even under the most tragic of circumstances is not routinely perceived as invoking national pride; empathy, pity, compassion but not pride. Legally, what will extinguish this obligation, if ordered? Does one letter penned by the convicted person and no reply from the RGC extinguish it? Does the obligation include a success component? What would it be? A reply? What if it is a negative reply? Does the convicted person have to continue writing until the public sites demanded by the Civil Parties are built and re-named to their satisfaction or the convicted person dies, whichever happens first? Did the Civil Party counsel give any thought as to how this would actually work? The sign of hope that sanity might prevail was given from the bench by Judge Klonowiecka-Milart who questioned the practicality of the Civil Parties’ request of an order to compel the convicted person to petition the RGC on a matter of public administration (to which Counsel Studzinsky had no answer with a tenable solution).

While Civil Parties counsel’s zealous approach to the representation of their clients is highly laudable, their capacity to put forward tenable reparations arguments is highly questionable.