01 Nov Symposium on the ECCC: Extraordinary Experiments in Reparation
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, Christoph Sperfeldt and Rachel Hughes consider the ECCC’s reparations mandate.
[Christoph Sperfeldt is a Senior Lecturer at Macquarie University and the author of ‘Practices of Reparations in International Criminal Justice’ (Cambridge University Press, 2022). Rachel Hughes is a Senior Lecturer at the University of Melbourne, who has previously written for Opinion Juris on the dangers of reclassifying victim information at the ECCC.]
When the Supreme Court Chamber of the Extraordinary Chambers in the Courts of Cambodia (ECCC) rendered the court’s last judgment on 22 September 2022, it made only scant reference to the 13 collective reparations projects that had been recognised by the Trial Chamber for the benefit of participating victims (civil parties) in Case 002/02. While these reparations were not under appeal, they represent perhaps one of the most interesting features of the Khmer Rouge trials.
Combining international criminal trials with a reparations function has been seen as a more victim-oriented approach to delivering justice in the aftermath of mass atrocities. The International Criminal Court (ICC) was the first international criminal tribunal to which victims could submit claims for reparations. However, it was the ECCC that in 2010 rendered the first reparations decision in its Case 001. For both of these courts, making reparations a tangible outcome for participating victims has been an arduous journey, and the practice is still evolving.
ECCC judges were from the outset aware of the challenges associated with providing reparations in a mass atrocity context. When drafting the court’s internal rules, they limited reparations to ‘collective and moral’ measures, presumably excluding individual monetary compensation from the permissible forms of reparations. What they had not addressed, however, were the practical concerns related to the fact that the original reparations scheme was bound to the assets of convicted persons. When Kaing Guek Eav (Duch) was found to be indigent in the court’s first trial, the Trial Chamber only granted two symbolic reparations measures: to include in its judgment the names of civil parties and their relatives who died at S-21, and to publish statements of apology that had been made by the convicted person during his trial. Civil parties, their lawyers, and the public at large, were critical of the reparations aspects of the judgment.
Before the commencement of Case 002, the ECCC’s most important trial with almost 4,000 participating civil parties, the judges embarked on a significant overhaul of the reparations scheme with the goal of providing alternative avenues for reparations through and beyond the judicial process. The main goal was to establish a mechanism that would allow for external financing of reparations, effectively severing the award from the liability of the defendant. Since the judges felt that they had no mandate to establish a trust fund, they broadened the mandate of the court’s own Victims Support Section (VSS) to seek donor funding and engage in reparations projects, in collaboration with the civil parties and external actors. The judges would then merely ‘recognise’ that a specific project gives effect to the award sought by the civil parties. Questions have been raised to what extent such measures can still be called reparations, given how far removed they are from traditional notions of accountability. The judges also empowered the VSS to engage in so-called ‘non-judicial measures’ outside of the judicial process, although few such measures ever materialised – the most notable perhaps a memorial on the premises of the Tuol Sleng Genocide Museum, which was particularly relevant to the civil parties of Case 001, many of whom did not benefit from the new rules changes.
The rules change ushered in a whole new modality: the projectification of reparation in the form of externally financed ‘reparation projects’. In Case 002, the ECCC judges recognized two dozen such reparation projects in two separate judgments, in 2014 and 2018, relating to the two sub-trials of that case: 11 projects in Case 002/01 and 13 projects in Case 002/02. This more flexible approach to reparations provided a new space of engagement, especially with local NGOs. The court leveraged local NGOs’ networks and expertise in working with survivors, with NGOs emerging as central actors in conceiving and implementing ECCC reparation projects. This positively contributed to further ‘localizing’ the ECCC’s internationalized criminal justice process.
Many of the ECCC reparation projects have been creative arts-based works that aim to educate Cambodian youth and memorialise those who were lost during the Khmer Rouge regime. These include a theatrical production, a dance performance, graphic novels, a song-writing competition, testimonial storybooks, museum exhibitions, and a multimedia history App incorporating written, painted and filmed content. All of these creative endeavours have benefitted from the court’s requirement that civil parties be consulted during their design and implementation. As well, these projects have employed both established and new artists and researchers in Cambodia and drawn these individuals towards questions of accountability and memory in their own ongoing artistic practice or research. Some projects followed prior outreach programs by touring to provincial areas or, in the case of the App, being available wherever mobile phone coverage exists. Finally, these works have provided an affective or emotional focus for those Cambodians (including civil parties) who have encountered them. The arts work with and through emotion and may provide for the transformation of long-held beliefs and feelings.
The two dozen reparation projects across Case 002 indicate that the reform of ECCC’s reparations mandate overcame some of the weaknesses of the court’s original reparations provision. These reforms attracted new resources for reparations that were previously not available, mainly by drawing on Cambodia’s international development donors. The largest amounts of funding came from Germany and the European Union, with other contributions from Switzerland, France, Australia and the United States. Overall, external donors contributed more than USD 770,000 to reparations in Case 002/01, while the European Union alone committed more than EUR one million to reparations projects in Case 002/02. Yet, on the whole, reparations attracted less than one percent of the almost USD 350 million it cost to run the ECCC – an imbalance that repeats across a number of courts and tribunals.
The reluctance of the Cambodian government to engage in a more substantial way with ECCC reparations was one barrier to unlocking greater funding for reparations measures. It is true that Cambodian government support was relevant for some ECCC reparations, including instituting a national remembrance day, endorsing a new school curriculum on the Khmer Rouge conceived by the Documentation Center of Cambodia, as well as establishing the Legal Documentation Centre that will house the ECCC archives in an ongoing capacity. But more significant engagement from this quarter would have further broadened and legitimised the transitional justice process beyond the ECCC.
Despite these challenges, the ECCC’s reparations mandate delivered more than many had initially expected. Less is known about how the outcomes are perceived among its primary beneficiaries, the civil parties. Preliminary studies paint a less optimistic picture. Apart from the few civil parties who were fortunate to personally participate in one of the many reparations projects, most civil parties were not aware or had little knowledge of the reparations ultimately granted by the ECCC. These data reflect the gradual but continuous and substantial decrease in outreach following the judgment in Case 001. Other civil parties protested to request individual compensation, which was not permissible under the ECCC’s mandate. Beyond one-off consultations, continuous communication and involvement is key to enabling reparative effects among civil parties.
On the whole, the ECCC’s more pragmatic approach to reparations provides a notable counterpoint to the more legalistic approach pursued at the ICC, and it will undoubtedly contribute to further debate on the merits and problems with reparations in international criminal justice. Although it may be too soon to say whether – and for whom – these measures had a reparative effect, there is still much to learn from this novel attempt.