PRESS RELEASE

Opinion: More to justice than a trial

Laurel E Fletcher, Megan Karsh and Mahdev Mohan
6 December 2011
Phnom Penh Post

Photo by: Heng Chivoan Tann Sinath, whose husband was killed by the Khmer Rouge in 1978, attends a hearing at the ECCC yesterday. At the United Nations-sponsored Khmer Rouge tribunal in Phnom Penh, Case 002 is in its early stages. Three former senior leaders of the brutal Khmer Rouge regime are in the dock, charged with serious crimes that claimed an estimated two million lives between 1975 and 1979.

One novel feature of the Khmer Rouge tribunal is that victims can join the proceedings as “civil parties”. Civil parties support the prosecution to secure convictions.

If the defendants are found guilty, civil parties are entitled to seek redress for the harms caused by these former leaders. Nearly 4,000 civil parties are participating in this trial, and they are looking to the court for some measure of justice.

But for these victims, reparation for their injuries remains as elusive as it was three decades ago. The court has been reluctant to exercise its powers and provide civil parties with meaningful reparation.

In its first case, the Court rejected the majority of requests from civil parties who suffered heinous crimes at the notorious S-21 interrogation centre, where thousands were tortured and killed, citing legal barriers that other international courts and national reparations programs have easily sidestepped.

In the end, these victims received little more than having their names included in the court’s judgment.

Time is running out. This second trial is perhaps the tribunal’s last. Investigations against lower-level commanders have stalled, and the Cambodian government is opposed to further trials.

This may be the final chance victims have to claim redress against any perpetrators.

For thousands of victims, meaningful reparation awards are the touchstone of justice and accountability. Although the tribunal cannot undo the past, it can order that museums and monuments be built to commemorate the dead and honour their memories.

Survivors of the Khmer Rouge regime, many of whom are reaching advanced age, are eager to have the history of their struggle preserved and made accessible to succeeding generations through memorials and educational programs. By teaching about the past, those who lived through it hope to ensure that rice paddies will never again be turned into killing fields.

The court can also award specific redress for elderly, vulnerable and low-income victims. It can direct that medical care be provided to survivors who suffered harm as a result of the genocide.

Educational support for the children of survivors can help a generation deprived of opportunities to build productive lives and thus facilitate reconciliation.

Victims deserve a pride of place in any justice process where enormous human-rights violations are concerned. The Court’s reparations scheme has the potential to be its most remarkable contribution – both to Cambodian victims and to the development of international law.

The tribunal can set an example for other international courts that face similar challenges. The permanent International Criminal Court (ICC), in The Hague, also allows for victims to seek reparations, but has not yet ruled on such requests.
The court should act now to put in place a system for awarding victims appropriate redress.

In Victims’ Right to Remedy: Awarding Meaningful Reparations at the ECCC, a recent report we co-authored with the Centre for Justice and Accountability and published by the CJA, Access to Justice Asia and the International Human Rights Law Clinic at the University of California, Berkeley, we recommend how reparations can be administered effectively and in a principled manner.

For example, the Khmer Rouge tribunal should establish a working group of experts to develop a plan to create an independent body to receive and administer donor funds to implement a transparent and accountable reparations scheme, similar to the one at the International Criminal Court.

The comprehensive report identifies areas where the court’s approach to reparations remains unclear or inconsistent with international practice.

Importantly, the scheme’s true potential can be realised only if the tribunal takes immediate steps to address and remedy outstanding issues of law and policy that caused the majority of reparations requests in its first case (Case 001) to be rejected or cast aside.

It is the authors’ intention that the court urgently adopt the recommendations contained within, paving the way for civil parties to exercise their right to meaningful reparations and justice.

There is more to justice than convening a trial. The obligation to make reparations to victims is a critical component of the international criminal-justice process.

How the Khmer Rouge tribunal fulfils this duty will be a key yardstick by which it will be judged.

Laurel E Fletcher is a clinical professor of law at the University of California, Berkeley. Megan Karsh is a senior legal associate at Access to Justice Asia LLP (AJA). Mahdev Mohan is a co-founder of AJA and an assistant professor of law at the Singapore Management University.