Reparations. The section of the Appeal Judgment eponymous with the title of this forum (although the title of this forum was not meant to be limited to victim reparations but to be an analysis of the reparation of a wide array of issues ranging from the reparation of all issues related to the Khmer Rouge to the reparation of issues indigenous to the Cambodian judicial system). With victim reparations being nonetheless a part of the title of this forum, the subject merits special attention.
In the beginning, there was the word and the word was the Cambodian Criminal Procedure Code (CPC). In its current and previous incarnations the CPC had a well-articulated modality of participation afforded to victims of acts which fell within the criminal jurisdiction. The existence of this modality and its entrenchment in the Cambodian criminal process are undisputed. The framers of the ECCC process left the issue of civil party participation alone in its entirety (with the exception of mentioning victims for the purposes of protection). Concurrently, the framers made it clear that the procedure applied to the ECCC proceedings would be “in accordance with Cambodian law”. The obviousness of this inadequacy of the founding law of the ECCC is so pronounced you can hear it scream but the framers must have already put their earplugs in by the time it started bellowing). Be that as it may, the framers are not here to defend themselves and dragging their names through the mud, yet again, is not an interpretive method in and of itself. Thus, the founding law made the Cambodian criminal procedure applicable to these proceedings in its entirety with the exception of segments of the Cambodian procedure which the Court would find to be either inimical to the established rules of international criminal procedure or simply unclear and with no means of clarification available domestically. Victim participation as civil parties in itself is not either inimical to international law or unclear as a modality in Cambodian law. And so far, so good with there being no reason to believe that the Court has ever disagreed with any of this. What the Court disagreed with is the victims’ right to recover damages in the event of conviction. The CPC – either in its version contemporaneous with the founding or in its present version – is clear that civil parties to successful criminal prosecutions have the right to recover. This is clear as daylight from the CPC to anyone and if it is not, may be reading criminal law is not up that person’s alley. What has no daylight clarity is whom the victim has the right to recover from. The 1993 CPC to rescue (when the Cambodian legislature voted to enact the founding law of the ECCC and within that voted for “[t]he procedure must be in accordance with Cambodian law” clause, they had the 1993 CPC in mind as enacting a draft which by then had undergone major rewrites at least 3 times would have been imprudent). The 1993 CPC does not expressly state that the civil parties’ right to recover is limited to recovery from the convicted person, although there is a strong presumption that this was the intent of the CPC drafters. The contemporaneous criminal code (UNTAC Law) clearly opened the door to the prosecution of “any public agents, including police and military agents”. As such, there is no doubt that under the Cambodian law contemporaneous with the founding of the ECCC civil servants were subject to criminal prosecution and within that to its public component (determination of guilt and punishment) and its private component (damages). What was not clear was who would pay if the civil servant broke the law acting in his official capacity, the person himself or the State? A number of countries have resolved this issue, one way or the other, but this was never resolved in Cambodia. This is what the ECCC should have resolved through the means of access to international standards available to it. Instead, the ECCC decided to de facto rewrite the CPC and cancel the civil parties’ right to recover for the purposes of these proceedings. To justify this, the ECCC argued the ‘special nature’ of these proceedings. What the ECCC keeps forgetting to tell us is what is so special about these proceedings that makes them more special than the special proceedings of the PRT which resulted in a bifurcated verdict containing a criminal and a civil sanction (confiscation of all property) and how the ECCC’s ‘special nature’ permits this Court (whom no one elected) to rewrite statutes (which is constitutionally recognized as being within the province of the legislature) (This might be a good question for this Court to address at the next outreach event and as part of the Court’s ‘legacy program’; I would phrase it this way: ‘by what authority did a panel of unelected judicial officers rewrite Cambodian law?’ and as a sub-question, ‘can we all rewrite the law if we feel that we are sufficiently qualified to do so now that the ECCC has done it?’). Over years, many observers have argued that there would be no practical use of ordering damages against the accused “because they don’t have any money”. My answer to this is maybe or maybe not; some of the accused have more than others. But, the accused’s financial situation is of no consequence to criminal proceedings. To remind the Court, yet again, there is only one thing that is of consequence to criminal proceedings – the law. It is, perhaps, salient to observe that the law does not divide convicted persons into the rich and the poor. It simply permits courts to order damages against the convicted and civilly responsible persons which are paid to the extent of the convicted and civilly responsible persons’ solvency immediately and if that is not sufficient to cover the amount of damages ordered is paid over a period of time under the threat of imprisonment in the event of nonpayment. This Court’s job was not to concern itself with the practical arrangements of how this would be done (the province of the executive) but to concern itself with being the judicial institution it was created to be and determine “the rightfulness of the claim for damages”, as courts are required to do by law. SCC decided that this part of the law was too bad an idea because it wanted to “avoid the issuance of orders that, in all probability, will never be enforced and would be confusing and frustrating for the victims” (a hypothetical is in order to amplify what the Chamber said here; a poor neighbor sets a rich neighbor’s house on fire; there is no way the poor neighbor can ever repay the rich one; the Chamber says, let’s not even worry about looking at the rich neighbor’s tortuous claim -- leave alone determining its rightfulness -- because there is no way the poor neighbor can ever repay him and we are not going to waste our time determining the rightfulness of the rich neighbor’s claim (why worry? he will find it “confusing and frustrating”, anyway; let’s see what’s for lunch instead); I would like to know in the tort legislation of what country the SCC found inspiration for this; is this country on this planet or are we delving in extraterrestrial legislation now? If it was the Chamber's intent to annihilate all earthly tort legislation, it will need to start with the Code of Hammurabi and wipe out everything on the subject since). The Court chose not to do that and I am convinced that some day in not such a distant future we will hear a clear and coherent statement from this Court on why it chose to ignore the law. The Supreme Court Chamber opened with a wild story of “unique[ness]” (I presume that this display of thesaurus knowledge demonstrates the SCC’s fatigue with ‘special’) which permits “only limited analogy and guidance […] from distinct frameworks”. First off, congratulations on the phrasing. Second, “limited analogy”? I encourage -- and in fact implore (if we are using stilted language here) -- the Chamber – and specifically whomever wrote this particular sentence – to count how many “distinct frameworks” the SCC routinely cites in each of its decisions and I try to say “limited analogy” with a straight face (I, personally, cannot (one last try; nope, can’t do it) but there might be others who are less sensitive to the truth and who can pull off this stunt). The “uniqueness” story gets rushed into the “authority/jurisdiction” story in which the SCC reveals that it has no “authority to assess Cambodia’s compliance with [reparations-related] international obligations.” The Chamber is spot-on and this is very true: courts do not do ‘compliance assessments’; there are plenty of reporting agencies which do just that. While ‘compliance assessments’ are outside of the purview of courts – including this Court – ‘compliance’ itself is not. Some might even argue that ‘compliance’ is what courts actually do which is achieved through ‘application’. This is not exactly a wild idea. Here is what it means: by considering a particular international obligation’s applicability to the circumstances of the case and particularly if submitted as part of the legal basis by a party the court shows the country’s compliance with that obligation (it is ‘consideration’ that is key, not whether the court finds it applicable or not). Brass tacks: no, we did not expect the Court to write an international obligation compliance report but we did expect it to consider their applicability to the circumstances of the case. It really is not a difficult concept.
I – as I am sure most readers of the Appeal Judgment – cannot make head or tail of the summary version of “[t]he Supreme Court Chamber also holds that it has no jurisdiction to grant requests for reparation that entail […] an active involvement of the Cambodian authorities in order for the measures to be realized”. In the absence of a public version of the full text of the Judgment, speculation is the tool to resort to. By stating this, the SCC might be referring to the reparations ideas (I cannot call them ‘claims’ because they are grounded in the musings of this Court, not the law) submitted by the civil party counsel who ran on the high sugar intake caused by this Court’s ‘activism’ yanking the rug of damages from underneath their feet. An interested observer will do him/herself a favor by going through the ‘ideas’ the civil party counsel came up with (one would wonder if sugar was the only substance those ideas were induced by but that might be a story for another day). As much as the civil party counsel are an easy and highly vulnerable target (and for that are very difficult to keep one's hands off of) for these ‘ideas’, this Chamber tried to give them a run for their money (and I believe got to wear the yellow jersey of the leader at least a couple of times in the race but could never beat the civil party counsel at their (that is because the SCC is actually legal professionals and these civil party counsel ... they are people we let into the courtroom and then forgot exactly why). Let’s take a look. The Court’s version of the Cambodia law (known as 'the Internal Rules') explicitly bars monetary reparations. Boom, straight out of the window. What is permitted is symbolic nonmonetary reparations. ‘Nonmonetary’ clearly sounds like no money will be happening but what does it mean when accompanied by ‘symbolic’? In practical terms that is. A reasonable person would think, probably, projects for the survivors. What’s ‘a project for the survivors’? Let’s say it is a psychiatric clinic which gives priority and free-of-charge treatment to those who lived through Democratic Kampuchea (who knows, maybe they will let Ieng Thirith in too). Good? No, says the SCC. Can’t have it. Why? Well, the Court can’t “grant requests [which] entail […] an active involvement of the Cambodian authorities” and even if it did it wouldn’t be able to “enforce [the] reparation awards”. Incidentally, the Cambodian government (legislature for appropriations and executive for implementation) is the only institution that the Court can order anything to and the only institution that can be ordered to make relevant appropriations by a court of law. If the SCC refuses to do that, then what is the meaning of ‘symbolic nonmonetary reparations’? Is it to be given a free printout of the SCC’s Summary Appeal Judgment? Would SCC be able to order the Cambodian government to make copies of it? If so, how is this different from ordering the Cambodian government to build a psychiatric clinic (appropriations are appropriations, right? or is there something I need to know about appropriations that I don't? don't they all require "an active involvement" of the government?)? If not, we are back to my original question: ‘what is the meaning of ‘symbolic nonmonetary reparations’ and does it have a meaning?’
And finally a segue into the “collective and moral” story. Buckle up as this is the best part of the trip. This story is comprised entirely of the SCC’s interpretation of the term ‘collective and moral’.
Let’s start with ‘collective’. SCC found that the meaning of ‘collective’ “excludes awards, whether or not of a financial nature and privileges those measures that benefit as many victims as possible”. Read on its own, it is not as good but read in conjunction with the above it is nothing short of fantastic. Here’s the zinger: SCC cannot order the Cambodian government to do anything that requires “an active involvement” of the Cambodian government and yet it talks about ordering something that “benefit[s] as many victims as possible”. I know only a couple of such things which cost nothing, do not require being created (at least not by humans) and which benefit everyone. They are the air we breathe (not the one is scuba tanks; that stuff costs money and it ain’t cheap), sunlight and rainwater. These are free and require no “active involvement” of the Cambodian government (unless Hun Sen declares himself a successor of the sun-god of Egypt in which case we will need his permission to use the sunlight). Maybe the SCC can term them as ‘enjoyment of air, sunlight and rainwater in an environment free from the Khmer Rouge’ and order that as a reparation? I am sure the Chamber can invent some trapezoidal semi-religious way of explaining this sprinkled with terms like 'national reconciliation', 'harmony' and 'search for the truth as the ultimate goal' (I would like to recommend Youk Chhang as an advisor for this as he claims to have invented a way to reconcile by collecting documents and reminding people of atrocities by way of reconciliation; if he can argue that, he can argue anything).
The SCC’s definition of the term ‘moral’ is even more amusing. The Chamber defined it as “repairing moral damages rather than material ones”. I suppose the SCC is going to argue that the mere fact of a public prosecution of the KR “repair[s] [the] moral damages”. It would be a good one. It is like going out for Chinese and skipping straight to the fortune cookie. It has been a couple of years since I reread Orwell’s 1984 but the Chamber must have reread it only recently. Either that or the Chamber ghost-wrote 1984 under a nom de plume.
My vituperatively comical analysis of the SCC’s decision aside, there is nothing comical about the fact that the civil parties will end up with a poorly told story about how they should enjoy the simple things in life instead of receiving reparations to which they are entitled under the law of this country now that Duch has been found guilty (I will discuss reparations claims filed against the State in a separate post).
This concludes my analysis of the Summary Appeal Judgment until the full version of the 001 Appeal Judgment becomes public.