A Khmer Rouge Tribunal with civil parties but no guarantees of implementation of reparations

Choeung Ek (Phnom Penh, Cambodia). 17/04/2008: Commemoration of the start of Pol Pot’s regime at the “Killing Fields” in Choeung Ek
©John Vink/ Magnum

While the Rules Committee of the Extraordinary Chambers in the Courts of Cambodia (ECCC) – which examines potential amendments of the Internal Rules of the jurisdiction backed by the United Nations –, is meeting this week in Phnom Penh, the issue of the reparations to be awarded to victims of the Khmer Rouge is back on the table. Cambodian civil society organisations as well as lawyers for civil parties at the ECCC called to clarify this point as soon as possible, instead of waiting until the end of the judicial process, so that the measures provided for in the rules regarding collective and moral reparations do not remain a simple symbolic rule on paper.

Penniless accused
The Khmer Rouge Tribunal is the first hybrid jurisdiction with a mandate providing for the request for reparations by victims who are joined as civil parties. The CHRAC, a coalition of 21 NGOs defending human rights and the rule of law, intends to remind the court of its commitments. In an open letter, dated June 3rd, to the members of the Plenary and the Rules Committee, the organisations urge them to make a debate on the issue of reparations a main item of their agenda for the next Plenary Assembly, and to amend the existing rule.

Indeed, Rule 23 states that “the Chambers may award only collective and moral reparations to Civil Parties. These shall be awarded against, and be borne by convicted persons.” Yet, the CHRAC reminds that all five defendants before the Court have claimed to be “indigent” in order to qualify for legal aid. “As it currently stands,” the CHRAC argues, “this provision would drastically limit the potential scope of any Court-ordered reparations. Even a limited reparations award, such as an order to publish the judgment of the court, as suggested in Rule 23.12 (a), would be rendered unenforceable given the defendants lack of funds or assets to pay for such an award.”

Yet, the coalition recalls the results, presented earlier this year, of a country-wide survey among the Cambodian people conducted by the Human Rights Center of the University of Berkeley, California, which showed that “88 percent of all respondents believe that it is important to provide symbolic (moral) reparations to victims of the Khmer Rouge or their family.”


A system of voluntary contributions, an option to explore
It is not the first time that representatives of the Cambodian civil society have expressed their concerns on this issue. This time, the CHRAC clearly suggests that the tribunal allows voluntary contributions to compensate for the indigence of the defendants, who are the only ones who have to pay for the reparations to this day. “Only such an opening clause would provide a realistic perspective for the implementation of ‘collective and moral reparations’,” the coalition argues. Moreover, they also urge the court to “[S]upport credible action to investigate into the assets and property of the accused persons in order to recover potential resources to fund reparations orders”. To this day, there is nothing on how to administer and implement ECCC reparations orders, which should be corrected, the NGOs believe.


A call for the creation of a Victims Trust Fund
At the same time, civil party lawyers, including Silke Studzinsky, make the same observation as the CHRAC: the provisions on the funding of reparations are ineffective. They have therefore drafted proposals for amendments of the Internal Rules, regarding, among others, the establishment of a Victims Trust Fund by the Office of the Administration. The proposals were submitted on April 30th 2009 to the court via the Victims Unit. The initiative could be partly guided by the example of the Victims Trust Fund based on voluntary contributions and established in September 2002 by the Assembly of State Parties to the Rome Statute of the International Criminal Court (ICC) in The Hague.

Moreover, the lawyers argue that by implementing the Extraordinary Chambers into its national court structure, the Cambodian government also assumes “its duty according to para 16 of the [United Nations] Basic Principles for Victims also for the ECCC”, which states that “States should endeavor to establish national programs for reparation and other assistance to victims in the event that the parties liable for the harm suffered are unable or unwilling to meet their obligations.”


Necessary amendments to the Internal Rules
The civil party representatives note that the resources to this – independent – Trust Fund should also be contributed by the Kingdom of Cambodia itself. They conclude that “[A] Trust Fund foreseen in the Internal Rules is likely to be a good starting point for negotiations with the Royal Government of Cambodia on this matter.” On this point, they recall it is “common in many legal systems of the world, that certain reliefs concerning the detention are conditional upon the conduct of voluntary work by the detainee.” If this were to apply here, they argue that “[P]art of the compensation received for such work conducted by the defendants at the ECCC could be used as a contribution to the Trust Fund.” However, it may be noted that, in light of the advanced age of the defendants and the length of the judicial process, the last hypothesis seems most unlikely.

In addition to funds contributed by the Cambodian government and the defendants, voluntary contributions could be made by “Governments, international organizations, individuals, corporations and other entities.” The sums would all be collected by the Victims Trust Fund, which would manage these funds and their distribution. These are as many elements the lawyers would like to see written in black and white in the Internal Rules.

For Sok Sam Oeun, chairman of the CHRAC, reparations could also be funded by countries that were involved in the Pol Pot regime. Their implementation would contribute to “allay the suffering of the victims.” The important figure of the Cambodian civil society does not want to stray into idle speculations and simply hammers for now that the court must address this sensitive issue head-on.