By Cheryl White
Centre for International Governance and Justice
The magnitude of crimes of mass atrocity and the depth of the harm they cause, personal and societal, render reparations awards inadequate in real terms. However, representative justice process and tangible reparations, although limited, may give new hope to victims of crimes in contexts where previously the hope of a meaningful remedy had been lost. This may now be playing out in Cambodia, where after more than thirty years victims of the Khmer Rouge regime have rights to participate in trials of the leaders of the regime, and to receive tangible reparations. On August 7, 2014 the Extraordinary Chambers in the Courts of Cambodia (ECCC) delivered judgement against the two most senior surviving leaders of the Khmer Rouge regime, which held power in Cambodia from 17 April 1975 to 6 January 1979. The ECCC Trial Chamber found Nuon Chea and Khieu Samphan guilty of the crimes against humanity of extermination “(encompassing murder), persecution on political grounds, and other inhumane acts (comprising forced transfer, enforced disappearances and attacks against human dignity).” They were both sentenced to life imprisonment. In the same judgement, the Court upheld the claim of the civil parties—civil litigants to the criminal action—for 11 of the 13 projects submitted as moral and collective reparations.
The rights of civil parties to representation and reparations stem from the ECCC’s application of Cambodian law and procedure (which is based on the French civil law system) and the ECCC’s existence within the Cambodian court structure. The original version of the ECCC’s Internal Rules permitted victims to join the criminal action with individual party status if they had suffered injury (physical, material or psychological) as a direct consequence of crimes before the court. However, amendments to the Rules in 2010 limited civil party rights to individual participation in the pre-trial investigation stage. In addition, at trial the civil parties are now represented as a single consolidated group by two co-lead lawyers – one Cambodian and the other International. Notwithstanding the changes, the hearing of reparations claims within the trial proceedings kept the civil parties’ interests and the victim perspective more broadly before the Court.
In the first and second trials a proportion of the total number of civil parties (22 and 15 respectively) made statements to the Court in support of their reparations claims. Under the applicable inquisitorial criminal procedure, the civil parties, after they had given their statements, faced examination by the judges, the co-prosecution, and co-defence counsel. The accused had a general right of reply to witness testimony and it was possible for the civil parties to put questions to the accused. The narrative testimony of witnesses and scope for engagement with their evidence produced proceedings with a dialogical tenor uncharacteristic of adversarial trials. This innovative procedure and the Court’s attention to the trials’ reconciliatory purposes produced segments within the proceedings that resembled discussion fora around the stories of victims, and the evidence of witnesses.
The original version of the ECCC Internal Rules limited reparations awards to moral and collective reparations drawn against the assets of the accused. Under these provisions, where the accused person had no assets (and in the absence of a separate victims trust fund, or any power to bind State authorities to finance awards) the Court could do little other than recognise the value of proposed reparations projects in principle. In the ECCC’s first case, known as Case 001, the Trial Chamber found that the indigence of the accused meant that the publication of statements of his apologies or expressions of remorse during the trial was “the only tangible means by which [the accused] could acknowledge his responsibility and the collective suffering of victims.” Although the civil parties were able to appeal this decision, the ECCC Supreme Court Chamber made no new reparations awards and reiterated the constraints flowing from the existing reparations framework.
Following the first trial, the reparations provisions of the Internal Rules were amended to give power to the ECCC’s Victims Support Section (VSS) to develop and implement “non-judicial measures in the form of projects to address the broader interests of victims.” To this end the VSS, with funding from the UN Trust Fund to End Violence against Women, began working with locally-based civil society organisations to implement a three-year project to promote gender equality and improve access to justice for female victims of gender-based violence during the Khmer Rouge regime. The amendments also provided that the VSS could work with the co-lead lawyers of the civil parties in identifying reparations projects that the ECCC might endorse, provided funding for those projects was secured from external donors in advance of the trial judgement.
In Case 002/01, the VSS and the co-lead lawyers submitted 13 projects to be considered by the ECCC as reparations. Despite the low expectations of some commentators, the VSS ultimately secured over US$770,000 from individuals, governments, and NGOs to fund the projects. The Trial Chamber endorsed 11 of the 13 requested projects, with two projects going unsupported because the Court was not satisfied that sufficient external funding had been secured. The Chamber interpreted the new reparations provisions as enabling the Court to recognise projects “contributing to the rehabilitation, reintegration and restoration of the dignity of civil parties,” and the support of donors, financially and in other ways, as assistance demonstrating “solidarity with victims of the Khmer Rouge era.” The approved projects include public memorials, the construction and maintenance of a regional community peace learning centre, mental health programs (one offering testimonial therapy), permanent exhibitions on aspects of Case 002/01, new educational material for teachers on the Khmer Rouge regime, and distribution of the trial judgement with accompanying informational material. These projects provide tangible reparations in response to the civil parties’ claims, with potential benefits for the larger Khmer Rouge victim constituency.
From its inception the ECCC has had detractors because of its integration within the Cambodian court system and the possibility that its trials would be jeopardised by interference from the Cambodian government. Indeed, the Court has had to contend with corruption allegations and opposition from the government in two of its latest investigations. Other transitional courts in the modern international criminal justice system have also had legitimacy, formation, and procedural problems and have struggled to secure the support of the societies affected by the crimes these courts addressed. Despite its particular operational difficulties, however, the ECCC has attracted increasing local support. Following completion of Case 001, in the second of two independent population surveys conducted by the Human Rights Center of the University of California at Berkeley, 75% of respondents believed that the ECCC was “neutral,” and 77% believed that the trial had been conducted fairly. In addition, 81% saw the ECCC as helping promote reconciliation, while 76% believed the Court would have positive effects for victims and their families. These perceptions contrast with the generally poor public opinion of Cambodian national courts, and reflect stronger local approval than the international tribunals for the former Yugoslavia and Rwanda attracted at the same stages of their development. The findings of the report suggest that the ECCC is becoming an enabler of individual and collective hope in a society long denied justice and a platform from which to engage with its history of mass atrocity. The ECCC’s adaptation of its institutional mechanisms to create more meaningful reparations provides a further avenue of hope for victims of the Khmer Rouge, which may go some way towards countering negative assessments of the Court that were perhaps based on unrealistic expectations.
 Co-Prosecutors v Nuon Chea and Khieu Samphan (Judgement) (Extraordinary Chambers in the Courts of Cambodia, Trial Chamber, Case File No 002/19-09-2007/ECCC/TC, 7 August 2014).
 Co-Prosecutors v Nuon Chea and Khieu Samphan (Judgement) (Extraordinary Chambers in the Courts of Cambodia, Trial Chamber, Case File No 002/19-09-2007/ECCC/TC, 7 August 2014) [ 1152-1160].
 Extraordinary Chambers in the Courts of Cambodia, Internal Rules, (Rev 8) (adopted 3 August 2011) r 23 (3) [ECCC Internal Rules].
 Co-Prosecutors v Kaing Guek Eav alias Duch (Judgement) (Extraordinary Chambers in the Courts of Cambodia, Trial Chamber, Case File No.001/18-07-2007, 26 July 2010) .
 ECCC Internal Rules (Rev 8) r 12 bis (3).
 Rong Chhorng, “Conflict’s Female Victims Far From Forgotten” Phnom Penh Post (6 June 2012).
 ECCC Internal Rules (Rev 8) r 23 quinquies (3) (b).
 Co-Prosecutors v Nuon Chea and Khieu Samphan (Judgement) (Extraordinary Chambers in the Courts of Cambodia, Trial Chamber, Case File No 002/19-09-2007/ECCC/TC, 7 August 2014) .
 Phuong Pham, Patrick Vinck, Mychelle Balthazard, Hean Sokhom, After the First Trial: A Population-Based Survey on Knowledge and Perception of Justice and the Extraordinary Chambers in the Courts of Cambodia (Human Rights Center, University of California, Berkeley, 2011) 26.
 Ibid 29.
 See Laura A. Dickinson, ‘The Promise of Hybrid Courts’ (2003) 93 American Journal of International Law 295, 302-303; Jaya Ramji-Nogales ‘Designing Bespoke Transitional Justice’ (2010-2011) 32 Michigan Journal of International Law 26, 28.