02 Nov Symposium on the ECCC: Victim Participation at the ECCC – Final Justice for the Victims of the Khmer Rouge?
The Extraordinary Chambers in the Courts of Cambodia (ECCC) was created by the Cambodian government in partnership with the United Nations. Its purpose was to prosecute crimes under international and Cambodian law committed between 1975 and 1979, when Cambodia was ruled by the Communist Party of Kampuchea (CPK), better known as the ‘Khmer Rouge’. On 22 September 2022, the ECCC’s appeal chamber delivered its final judgment, upholding former CPK leader Khieu Samphan’s conviction for war crimes, crimes against humanity and genocide.
Responding to that final judgment, this Opinio Juris symposium reflects on the ECCC’s trials, tribulations, and legacy. In this post, Julie Bernath, Somaly Kum, Boravin Tann assess the ways in which victims have participated in the ECCC’s legal process.
[Somaly Kum is a research fellow at the Center for the Study of Humanitarian Law in Cambodia who, since 2010, has worked closely with survivors of the Khmer Rouge regime through outreach programs of the Stanford Center for Human Rights and International Justice (Cambodia program) and ADHOC. Boravin Tann is a researcher and lecturer at the Center for the Study of Humanitarian Law, Royal University of Law and Economics since 2017, whose research concerns the transitional justice process in Cambodia, including victim participation and genocide education of the young generation.Julie Bernath is a senior researcher at swisspeace and the University of Basel, whose book ‘The Khmer Rouge Tribunal: Power, Politics and Resistance in Transitional Justice’, will be published in 2023 with The Wisconsin University Press.]
On 22 September 2022, 150 civil parties attended the final hearing of the Extraordinary Chambers in the Courts of Cambodia (ECCC), which brought the Court’s last case to an end. It also signalled the end of its largest experiment in civil party participation, at least within the Courtroom, as it now moves into a three-year residual phase.
An Unprecedented, Yet Varied Experiment in International Criminal Justice
As in other international(ized) tribunals, victims featured at the centre of the ECCC’s self-legitimization claims. Victims could participate as civil parties, complainants, or witnesses. Khmer Rouge survivors, however, did not necessarily understand the differences and implications of these legal categories. Amongst these options, civil party participation offered the most far-reaching form of participation; it was also unprecedented for an internationalized criminal tribunal. Civil party participation is a result of the ECCC’s hybrid nature and Cambodia’s civil law system. It afforded survivors the right to formally participate as parties in the proceedings and to seek collective and moral reparations. Survivors applied to be civil parties because they wanted to seek justice for themselves, their relatives and other victims, to have their suffering acknowledged, to tell their story and to know the truth.
Eventually, the scope of their participation was significantly reshaped and their rights curtailed. These changes were made before the Case 002 trial, amidst concerns over efficiency and equality of arms. Civil parties’ experiences thus varied greatly across cases. In Case 001, the 76 civil parties had a more intense experience of participation than the larger collective of 3867 civil parties in Case 002. They were able to participate throughout the proceedings, from the investigation phase until the appeal judgement, and to regularly meet their lawyers. Many testified with emotion. In Case 002, 3867 civil parties were admitted, including a few former low-level Khmer Rouge cadres. The 3867 civil parties were consolidated into one group represented by two lead co-lawyers at trial. Whilst the ECCC introduced innovative formats broadening civil party testimony, overall, civil parties were not able to see the Courtroom, testify or participate in outreach activities as much as in Case 001. This raised questions over the symbolic nature of their participation. Finally, thousands of civil party applicants in Cases 003 and 004 had very few to no opportunities for participation, as these cases were terminated before reaching trial, amidst allegations of political interference from the Cambodian government.
A Race Against Time and Insufficient Funds
On 22 September 2022, the frailty of the accused and the attending civil parties was a vivid reminder that time always worked against the ECCC, established 25 years after the end of the Khmer Rouge regime. The other accused died before the end of Case 002, as did many civil parties. The number of civil party deaths remains unknown – in January 2021, the lead co-lawyers informally knew of 312 – yet for many civil parties, the last verdict in Case 002 came too late.
Efforts for civil party participation were also hampered by insufficient funds. The ECCC Victims Support Section was belatedly established and had limited human and financial resources. In recent years, the Covid-19 pandemic, and a lack of prioritization of civil party participation, added to these challenges. In June 2022, international lead co-lawyer Megan Hirst resigned, facing the “untenable position” of having to represent civil parties without being able to communicate with them.
Early on, Cambodian NGOs stepped in as important intermediaries between the Court and civil parties, sometimes leading to civil parties’ confusion when identifying transitional justice actors. NGOs played a fundamental role in supporting civil party applications, facilitating legal representation, offering psychological care, training civil party representatives, opening opportunities for dialogues with younger generations, and implementing reparation projects – all the while engaging in the translation of global norms. Despite these efforts, all civil parties could not be reached because of limitations in access due to geography, an over-reliance on existing networks, communication challenges and civil parties’ interests. With time, NGOs also faced decreasing donor funding.
In 2018, in a mixed methods study conducted with colleagues, we found that many of the 255 civil parties surveyed regretted knowing so little about the ECCC. A civil party representative observed: “When I asked [other civil parties] about the tribunal, they always said they don’t know. And now they don’t even want to know about the tribunal anymore, what has the tribunal done or whether they are able to find justice for the civil parties. […] because the tribunal lacks information.” A lack of funding for victim participation and outreach towards the end of a transitional justice process thus does not only affect access to information; it can also lead to disengagement from civil parties, who start to question their earlier experiences. The differences in opportunities for participation amongst civil parties, between civil parties and complainants, and between civil parties and non-participating Khmer Rouge survivors also created a sense of hierarchy of victimhood and some jealousy.
Weighing Both Process and Outcomes in the Quest for Justice
In our 2018 study, we found that those civil parties closely involved were able to build capacities, to express their story of suffering, and to gain a sense of mental relief and strength. Civil parties also emphasised the social nature of participation: they foregrounded the importance of having been able to meet other Khmer Rouge survivors. These findings speak to the relevance of procedural justice in international criminal justice.
Civil parties also weighed the outcomes of the ECCC. Asked about their opinion of the verdict pronounced on 22 September 2022, some civil parties said that they wanted the accused to suffer as they had under the Khmer Rouge regime. Yet it also seems that participation led to a certain mainstreaming of justice conceptions, with civil parties increasingly equating justice with a life sentence. With regards to reparations, many remained unaware of the reparations projects endorsed by the ECCC. The unavailability of financial and individual reparations has also been an important source of disappointment for civil parties, most of whom live in poverty.
What Next for Civil Parties?
The three-years residual functions provide the ECCC with a last opportunity to engage with civil parties, to acknowledge their contribution, and to protect victims’ rights during the reclassification of documents. From the start, civil party participation at the ECCC has been followed with great interest by practitioners and scholars alike. With the ECCC winding down, civil parties’ views should remain at the heart of assessments of this unprecedented experiment. How will they see their lives post-ECCC? How can they continue to pass on their life stories to the next generations of Cambodia?