Action and Redaction: Reclassification at Cambodia’s Hybrid Tribunal

[Rachel Hughes is a Senior Lecturer at the University of Melbourne. Her recent Australian Research Council fellowship examined ECCC legacy and reparation.]

The Lead Co-Lawyers representing victims at the Extraordinary Chambers in the Courts of Cambodia (ECCC), also known as the Khmer Rouge Tribunal, have recently submitted a filing on the question of the reclassification of case file documents. The reclassification of documents was slated for consideration at the end of ECCC Case 002, but victims’ lawyers have good reason to try to bring forward the process given that victims’ rights are currently at risk. As Pich Ang and Megan Hirst state in the filing to the ECCC Supreme Court Chamber (SCC) for directions on the matter, how documents in Case 002 are to be reclassified will indicate much about what kind of legacy this long-running tribunal is likely to bequeath. With the SCC having recently ruled that Case 003 and Case 004 must be terminated, it is now irrefutable that the Court is entering its final stages. The  Lead Co-Lawyers’ filing makes clear that important and complex work remains to be done during this time. A subsequent reclassification request made by the International Co-Prosecutor in Case 004/02 reinforces that conclusion.

Victim Participation

Victims of Khmer Rouge rule have often called for the ECCC to ensure a lasting public educational legacy, including an accessible archive. Of special and urgent concern to the Lead Co-Lawyers is the process by which this will occur. This process is likely to involve reclassification as public of the many thousands of documents relating to more than three thousand participating victims – known as ‘civil parties’ – that have been entered into evidence. Beyond these are thousands more documents that were not entered into evidence but were provided by or relate to civil parties. Because documents were mostly added to the case file confidentially during the judicial investigation, redactions have not been proposed on an ongoing basis as would normally occur in those tribunals where the parties submit evidence at trial. Although a Practice Direction exists for classification procedures at the Court, it does not give adequate direction for all the disparate documents or types of information on the case file.   

The ECCC has been lauded for the expansive scale and nature of its victim participation, even as criticisms have been voiced about some of the ways in which this model of mass participation has developed. The recent reclassification filing continues to advocate with integrity and passion for victims. By my reading it also points to the ways in which administrative systems and administrative control at international and hybrid tribunals greatly affect the material and lived outcomes of these justice processes, perhaps especially in the final phases of operation. While generally seen as apolitical, these Court organs and infrastructures are, in practice, as powerful as they are opaque.

Those affected by the alleged crimes of the Khmer Rouge of 1975-1979 were able to participate at the ECCC in two ways: by submitting a complaint to the Court, and by applying for recognition and participation as a civil party. In both cases, a Victim Information Form (VIF) was completed and submitted to the Court. Whether or not the VIF contained an application for civil party recognition determined where the form was directed within the court. Forms seeking civil party status went to the Office of the Co-Investigative Judges. If civil party status was not sought – which was the case for around half the VIFs submitted – the Victim Support Section passed these to the Office of the Co-Prosecutors. It is unknown how many of these complaints were used by the OCP in compiling their case, and consequently placed on the case file; the whereabouts of those not used is also unclear. In any case, many more forms were submitted than there were civil parties recognised, and many more civil parties were recognised than there were civil parties who actually testified in Court. Many civil parties provided supplementary information to the Court, and some were interviewed, with a written record of their interviews also added as evidence.

The Lead Co-Lawyers Filing

The reclassification filing asks for consistency of approach and clear direction from the SCC in relation to a process for the reclassification of Case 002 documents. With projections that the final judgment of the Court will be delivered before the end of 2022 (the Appeal Judgment in Case 002/02), and an arrangement for residual functions recently agreed upon by the Royal Government of Cambodia and the UN, resources are currently being retracted. The Lead Co-Lawyers recently lost a long-term legal consultant when the Court’s Office of Administration suddenly withdrew budget for the position. The Lead Co-Lawyers’ request for judicial review of that decision was dismissed summarily by the SCC. With such experiences front of mind, the filing reminds the Chamber that timely and careful consideration of reclassification (and especially declassification, that is, from confidential to public) must be prioritised before capacity and institutional memory is lost.

Although the Lead Co-Lawyers have been unable to undertake a thorough review, the filing sets out something of the number and diversity of civil party-related documents, and the different types of sensitive information in these documents. It also notes how some information, for example, an individual’s account of a crime they directly experienced, might recur across different documents (a VIF and a subsequent interview, for example), and also that some documents are replicated in full in different areas of the case file.

Private, Sensitive …and Public?

Most obviously, documents contain contact details for participating victims and sometimes for family members, especially as many elderly victims have indicated that, should they pass away, they will be succeeded by a family member. As well, because the original VIFs requested such information, victims’ names and addresses might be accompanied by details of the physical or mental ill-health they still experience from Khmer Rouge-era experiences, and about any ‘medical or psychological treatment’, including the names and opinions of health professionals. Leakhena Nou has written on the challenges of using VIFs in her work with Cambodian-American communities. Less obviously, third parties are often named in accounts of crimes witnessed and harms experienced. In many written records of interviews, civil parties voice intensely personal, disturbing and intimate details of sexual violence, including as occurring within ‘forced marriage’, which was judged an ‘inhumane act’ by the ECCC Trial Chamber in 2018, as Rosemary Grey has analysed.

In general, evidentiary documents ought to be made public. The Lead Co-Lawyers are clear on this principle and acknowledge that most victim-survivors wish to broadcast their stories of Khmer Rouge violence. Indeed, to tell truths of loss and suffering was a desire that impelled many to participate at the Court in the first place. Such motivations are heard from civil parties in scholarly research papers on ECCC victim participation, and in the Court’s film The Long-awaited Day and publications The Illustrated [Case 002/01] Civil Party Storybook and The Unheard Stories of Case 002/02 Civil Parties. Notwithstanding this principle, the Lead Co-Lawyers’ filing urges that the SCC take responsibility for protecting victims from loss of face, the violation of personal or familial privacy, and recrimination.

Archival Approaches

The Lead Co-Lawyers’ suggested approach to reclassification is both defensible and feasible: to hear from individual civil parties as to their preferences for all documents they have provided or that may affect them, and to gain their informed consent for the making public of such material. Within this, the Lead Lo-Lawyers propose dealing first with evidentiary material because it is this material that might otherwise be presumed to be confidential only until the completion of proceedings. The potential challenges of this labour-intensive process, and some possible solutions, have been occupying the Lead Co-Lawyers since early in 2021 and are set out in the filing. They estimate that some three thousand VIFs and one thousand supplementary information forms have been entered into evidence in Case 002. Beyond the consultations around evidentiary documents, additional consultations are proposed on a case-by-case basis with civil parties or their successors (it’s not known how many civil parties are still living) as to whether and how they wish to make their non-evidentiary documents public.

This seems especially apposite given widely-held understandings of victim participation as a form of ‘giving back’ of victims’ voices and agency, an ideal that is found in numerous international legal conventions and cases. It is additionally relevant to Cambodia’s justice process, where some two-dozen Court-recognised reparations include one titled ‘Access to the Judicial Records of the Khmer Rouge Trials and Civil Party Materials’. This reparation is to be hosted by the dedicated state archive known as the Legal Documentation Center relating to the ECCC (LDC-ECCC). The potential role of this archive in repairing harm will be seriously undermined if the reclassification of documents by the SCC prior to their being deposited in the archive is carried out carelessly or only partially.

To hear civil parties on their wishes regarding reclassification is a significant step that raises additional questions. What of documents and sensitive information that was provided by individuals who were not ultimately recognised as civil parties, including those who applied for recognition in Case 003 or 004, which have not progressed to trial? The Lead Co-Lawyers’ filing is, appropriately, concerned with civil party-related documents, but VIFs may still exist for others who have no standing as parties to the case. 

Proximate Archives, Proximate Questions

Will there be consistency of treatment across archives? The large private research organisation known as the Documentation Center of Cambodia (DC-Cam) has provided a significant amount of the documentation entered into the case file as evidence. Since the late-1990s, DC-Cam has been working to identify and locate Khmer Rouge-era prison and burial sites and local informants who can testify to events and alleged crimes in these places. Many interviews conducted by DC-Cam in their mapping and research projects entered ECCC case files as written records but are also retained by this organisation. If the ECCC does hear victims on the reclassification of documents, will DC-Cam take a similar approach?

As well as raising further questions, pre-existing Cambodian archives may provide answers that are relevant to reclassification and at the LDC-ECCC. The Tuol Sleng Genocide Museum (the former Khmer Rouge ‘S-21’ torture and incarceration centre) also contributed documents to the ECCC. The museum, assisted by UNESCO, recently digitised this archive, which includes ‘confessions’ extracted under torture and ‘prisoner’ portrait photographs (almost all these photographed individuals were subsequently killed, not released). Part of the impetus for this project was a long history of uncontrolled circulation and commercialisation of these materials, especially the portrait photographs. With the recent digitisation project at TSGM came a new access policy designed to give names to unnamed victims, safeguard victims’ families against the reproduction and circulation of the portraits, and significantly limit access to the ‘confessions’.

These open questions and new access policies underscore the latent power of a legal archive and the stories, opinions and memories they may hold or evoke, as has been critically examined in relation to the ICTR archive and that of the ICTY. The potential reclassification of civil party-related documents raises broader questions about the reclassification and redaction of many other types of court documents. While public access towards public dialogue is a crucial component of international and hybrid tribunals, exactly how a confidential document is to be made public is a forerunner question of great ethical consequence.

A considered approach to reclassification will require time and resources. Recent personnel cuts to all parties suggest that the Court’s administrators (and possibly its donors) may not necessarily appreciate the scale and importance of the work remaining at this stage. This perhaps reflects a misconception that investigations, trials and appeals are the only, or most important, or most international aspects of international criminal litigation at a hybrid tribunal. The importance of other work, such as outreach, victim engagement and document classification and access, is unfairly downplayed. Moreover, the investment made in investigations, trials and appeals will remain unrealised if the Court’s archive is not created out of equally careful and thorough processes of establishment and community outreach. 

To ensure this care is taken, the institutional memory of long-serving personnel and technical infrastructures ought to be retained, and consultative reclassification should be properly resourced. To fail in these ‘last’ tasks is to risk further harm to many who have given so much to this justice process.