More On the Misconceived Reparations Process

 

 

Cambodia has been receiving a highly disproportionate amount of international aid for 30-some years now. This aid was stepped up by the West playing a greater role in it following the Paris Peace Accord of 1991. Once those floodgates of aid were flung open, there has been no closing them, with the Cambodian government having let the donors pay for absolutely everything in their country (there is not one major project I have ever seen in Cambodia whose existence is not attributable to ‘the generous funding from [foreign donor’s name]’). Yet the amount of wealth in Phnom Penh has skyrocketed over the past 5 years, mostly through the pilfering of that very aid. Donor funding has become such a fixture on the Cambodian landscape that the local populace views it almost as an entitlement (in all my years of interacting with that country I have never heard a single local say how much they appreciate the help, with the exception of the formalities exchanged when the Cambodian government graciously accepts yet another pile of cash from a donor).

Recently, the Victim Support Section (‘VSS’) of the ECCC proudly announced that funding had been secured for projects proffered to the Trial Chamber by the Civil Party Co-Lawyers by way of reparations. A review of the donor list of that announcement shows that there is not a single Cambodian donor, private or corporate, on it. With Phnom Penh teeming with wealth, no argument can be possibly made that Cambodia is an extremely poor country that ergo cannot afford to contribute to any of these projects. This could not be further from the truth. Phnom Penh is now a city where a not so sizable plot of suburban land goes for a million dollars. And there is no lack of takers. Unlike it is the case in the West where most people buy even the most inexpensive plots of land on credit, cash is the only mode of payment in Phnom Penh for most people and million-dollar plots are bought daily for which cash is delivered in multiple duffle bags. The car fleet of Phnom Penh is an entirely other story, where the luxury (by the standards of the rest of the world) Lexus SUV is just the unimpressive regular car (and it isn’t the foreigners who drive the most exquisite of cars). A number of Cambodia’s uber-rich have built themselves monuments in mortar in the form of skyscrapers that serve the same purpose as monuments: They sit there for no other reason than to remind everyone of a particular person. Yet, the Court felt that these “poor Cambodians” would not be able to fund – or even modestly contribute to – the budget for the Civil Party Lawyers’ reparations initiatives. The Cambodian government, which spends lavishly on its civil servants’ latest SUVs, of course could not be expected to contribute either (the only thing that the Cambodian government was asked to contribute is the creation of yet another public holiday to compliment Cambodia’s most incredible calendar of public holidays; it is particularly curious that there are already two holidays that commemorate the exact same thing – the Liberation from Genocide Day (Jan, 7) and the Day of Hate (May, 20); yet the Civil Party Lawyers felt that those were not sufficient to fully commemorate the events of 1975-1979, even though those holidays were created for that very purpose). Who did contribute? A range of institutions and individuals in France, the German, the Australian, and the Swiss governments. As on many occasions in the past the Cambodians are going to look at this funding and say, ‘these countries have a lot of money so they should do this,’ and so it goes. The question here is, of course, not about who has the most money but what the purpose of these projects is. Routinely, reparatory payments are made by the convicted person and persons found civilly responsible. That is how it is done in the Cambodian system of criminal law. Yet, no one is even talking about appraising the accused’s assets in this process. What is most curious is that reparations may only be ordered if the accused has been found guilty. No one has been found guilty in Case 002/01 so far, yet funding for reparations has already been solicited and committed as if conviction was a mere formality in the way of the fundraising Juggernaut. Aside from the fair trial principles (and presumption of innocence was one of them last I checked) and the fact that no finding on the indigence of the accused has been made (again, this is not a matter of mere following of the procedure (although it would have been a worthwhile exercise for that reason alone); it is a very practical matter as the land the accused might own might be able to defray much of the cost of these projects, provided they are convicted), the fact that not a single Cambodian contributes to these projects is revelatory of the support this process enjoys in that country. Of course if there were Cambodian funders for any of these projects, it is unlikely they would fund things like “a Civil Party storybook” or another DC-Cam exhibition.

ECCC’s reparations scheme has been entirely misconceived. In the ordinary criminal process, reparations (more commonly known as ‘damages’) are ordered against the accused and civilly responsible parties. Such reparations are not ordered either to the extent of the accused and civil responsible party’s resources or on the basis of an extrapolation of their ability to generate income in the future but on the basis of the harm. But, by its very name, this is an extraordinary criminal process which contains extraordinary features. It is, however, silly to have reparations ordered against the accused when the court knows full-well that they will be paid by a group of foreigners with no connection to the accused. The court is in no position to order such reparations and it should not embarrass itself by doing so. What should be done is a nationwide consultation (not a bunch of foreign lawyers who do not speak the local language and who have never been outside Phnom Penh but who nonetheless somehow believe they know the Cambodian mindset) on what is appropriate and desirable as by way of commemorative fixtures or events, not reparations, and a nationwide fundraising drive to muster support, financial and in-kind, for the projects that come out of the nationwide consultation as a consensus. Simply giving money to a couple of NGOs who have attached themselves to this process is not either what is known as ‘reparations’ under the Cambodian criminal law, nor is it a commemorative Cambodian effort that is a corollary to this process. Most Cambodians will look at these so-called reparations and see them as yet another instance of Westerners giving money to the NGOs. And they will be correct thinking that. This reparations process is therefore a two-time loser. Unfortunately, this two-time loser of an ECCC policy is very likely to be endorsed by the Court and will represent an impermissible deviation from the law and yet another instance of Westerners rushing to assist where Cambodians can perfectly pull their own weight (and if they do not, that is not because they cannot but simply because they do not have any interest in the project and it should not be up to the Westerners or the Cambodians employed by the Court to override that overwhelming popular disinterest).