1. Introduction
The ECCC is a so-called hybrid tribunal, co-founded by the United Nations and the Cambodian government by a bilateral agreement.Footnote 1 The ECCC was created in 2003 to bring to trial (i) senior leaders of Democratic Kampuchea and (ii) those who were most responsible for the serious violations of Cambodian laws related to crimes, international humanitarian law and custom, and international conventions that it recognized, committed during the period from 17 April 1975 to 6 January 1979.Footnote 2 Its jurisdictional mandate is constrained by these personal, territorial, and temporal parameters. Moreover, its subject-matter jurisdiction is limited to selected international crimes (genocide; crimes against humanity; war crimes; and destruction of cultural property), as well as some crimes under Cambodian law (murder; torture; and religious persecution).
The ECCC has been dealing with four cases: Case 001 (completed), Case 002, Case 003, and Case 004. This article focuses mainly on the legal developments in relation to victim participation in Cases 001 and 002, and on how civil party participation has been continuously undermined. As it has encountered each case, the Court has faced allegations of political interference, the most serious of which have been in relation to Cases 003 and 004 and a media battle between the (national and international) co-investigating judges.Footnote 3 In these two cases the identities of the suspects remain under seal, and there has been very little progress for several years, although a new investigating judge has finally been sworn in.Footnote 4 Given the limited legal progress and the early stage of these cases, they will not be included in this article.
Case 002 is factually and legally complex and involves two accused named Nuon Chea and Khieu Samphan.Footnote 5 The formerly co-accused Ieng Thirith was released after a decision by the trial chamber finding her unfit to stand trial,Footnote 6 and proceedings against the formerly co-accused Ieng Sary were terminated on 14 March 2013, following his death the same day.Footnote 7 In Case 002, a total of 3,866 victims were admitted as civil parties,Footnote 8 and, due to this high number, the judges designed a new concept of victim participation through a revision of the Internal Rules.Footnote 9Section 2 of this article will deal with this revised scheme in more detail, as it is relevant for understanding the restrictions imposed on civil parties and their legal representatives or counsel, and the (inherent) limited possibilities within criminal trials to provide for ‘meaningful’ participation.Footnote 10
Case 001 against Kaing Guek Eav, alias Duch, resulted in the ECCC's first verdict by the trial chamber on 26 July 2010, when it handed down a 35-year sentence.Footnote 11 On 3 February 2012, the Supreme Court Chamber granted the appeal by the prosecution and increased the sentence to life imprisonment.Footnote 12 Without going into all the details of this judgment,Footnote 13 two issues are worthy of mention: (i) the case against Kaing Guek Eav, alias Duch, was the first trial in international criminal law in which victims were able to participate as civil parties,Footnote 14 and the term ‘civil party’ implicitly creates expectations of a more victim-centred approach with strong participatory rights; (ii) however, during the process, civil participatory rights were continuously curtailed – a trend that continued in Case 002 – and the requests for reparations were almost entirely rejected by the trial chamber, a finding that was upheld on appeal by the Supreme Court Chamber.Footnote 15
Bearing in mind the limited scope of this article, we shall focus principally on victim's participation in the legal setting of the ECCC. For this reason, section 2 of this article deals with civil party participation at the ECCC and its development in the aforementioned Cases 001 and 002, and Section 3 presents a brief overview of the implementation of civil party participation through NGO activities. Based on the description of victim participation in the legal arena of the ECCC and touching upon non-legal options, the article concludes by raising questions relating to the benefit of victim participation and its future (section 4).
2. The legal basis for civil party participation
The ECCC foresees that victims can participate as civil parties, granting them full rights in Rule 23 of the Internal Rules.Footnote 16 As the ECCC is integrated into the Cambodian court structure, the Rules regarding civil party participation of the Cambodian Criminal Procedure Code should apply first, and the Rules are thought to complement this procedure and fill in the gaps.Footnote 17 However, the Pre-Trial Chamber reversed this order and held that the Internal Rules constitute ‘the primary instrument to which reference should be made in determining procedures before the ECCC’.Footnote 18 At the outset, it should be noted that Rule 23Footnote 19 broadly states that the purpose of civil party action is to participate in criminal proceedings by supporting the prosecution, and that victims can seek collective and moral reparations. A first version of Rule 12 further regulated that a Victim Unit (VU) assists the victims in submitting civil party applications. In the meantime, these rudimentary Rules were revised eight times by the Judges,Footnote 20 and have led to a whole compilation of Rules (12, 12 bis, 12 ter, 23, 23 bis, 23 ter, 23 quater, and 23 quinquies).Footnote 21 Further, the ECCC limited the participatory rights through jurisprudence. The ECCC's legal developments can thus be circumscribed by two tendencies: increasing normative regulation and juridical restraint.
With regard to civil party participation in practice, three important domains can be distinguished: (i) admissibility criteria and procedure, (ii) participatory rights in the trial proceedings, and (iii) the right to reparation(s). This article will only touch briefly upon admissibility and then focus on participatory rights and civil party representation. Although the issue of reparations would definitely have been worth addressing, it would exceed the scope of this contribution.
The criteria for the admissibility of civil parties as spelled out in Rule 23 bis (1),Footnote 22 and include the following elements: the existence of a causal link between the charged crimes and the injuryFootnote 23; injury; proof of identification; and the level of proof (‘more likely than not to be true’).Footnote 24
Injury must be personal, but not necessarily direct, and the ‘very nature of the societal and cultural context at the time when the alleged crimes occurred requires another and wider consideration of the matter of victimization’.Footnote 25 In general, the Rules for admissibility have evolved over time alongside the trials, and were rather unclear at the beginning and, in addition, were applied differently by the Office of the Co-Investigating Judges, the Pre-Trial Chamber, and the Trial Chamber.
Coming to the essential participatory rights, earlier in trial proceedings the Pre-Trial Chamber had interpreted Rule 23 (1) as providing for participation ‘in all stages of criminal proceedings’ and that civil parties have ‘active rights to participate starting from the investigating stage of the proceedings’.Footnote 26 On the basis of this statement expressed by the Pre-Trial Chamber and, given the broad phrasing of Rule 23, one would expect strong rights for civil parties to engage in proceedings. However, once the number of civil parties increased, mechanisms were adopted to ‘streamline’ – in the words of the judges – their participation. Civil parties cannot address the Chamber directly during the trial stage anymore, but must be represented by lawyers, with their rights exercised only through their lawyers.Footnote 27 In Cases 001 and 002, civil parties were excluded from the opening statement or brief preliminary remarks respectively,Footnote 28 and in Case 001 they were also denied the opportunity to make any submissions relevant to sentencing.Footnote 29 In the latter decision, the Trial Chamber excluded civil parties proprio motu from questioning character witnesses, the accused, and experts who had examined the accused.Footnote 30 Most importantly, the amended version of Rule 23 (3) of the ECCC's Internal Rules states that civil parties can only participate as a ‘consolidated group’ once the trial stage is reached, and that civil party lead co-lawyers (CP-LCL) organize this group in accordance with Rule 12 ter. The new representation scheme thus introduces two novel concepts: (i) one consolidated group of civil parties, and (ii) lead co-lawyers that shall not only co-ordinate the representation of civil parties, but also represent the interests of the consolidated group although they have no powers of attorney.Footnote 31
Two successive plenary sessions modified the Rules in November 2009. In the light of the first trial, the judges deemed changes necessary to promote more expeditious trial proceedings:
These modifications are designed to meet the requirements of trials of mass crimes and the specific Cambodian context and to ensure that ECCC proceedings respond more fully to the needs of victims. They will also promote greater efficiency in trial management and the ability of the ECCC to reach a verdict in any future trials.Footnote 32
The judges’ aim was apparently to speed up the trial in Case 002 when they developed these legal innovations. However, the amended Rules are contradictory to some extent and it remains unclear what exact role the CP-LCLs should play. Rule 12 ter (1) and (3) refers to the organization and co-ordination of representation, while later, in Rule 12 ter (5), the core function is ‘representing the interests of the consolidated group’. In reality, the CP-LCLs go beyond co-ordination and refer to their ‘ultimate responsibility’ to represent the consolidated group under Rule 12 ter (5) (b). Another aspect concerns disputes that will surely arise given the high number and divergent interests of civil parties, civil party lawyersFootnote 33 and the LCLs. Rule 12 ter (3) leaves the consultation process to ‘internal procedures’ to be determined by the CP-LCLs, but there is a lacuna in the Rules concerning the settlement of disputes between the CP-LCLs and civil party lawyers.Footnote 34 A formal complaint procedure for civil party lawyers against decisions taken by the CP-LCLs should have been provided for in the Rules.
The ‘consolidated group’ is also not further specified. With respect to individual rights, it will be interesting to see how the Trial Chamber deals with the participatory rights of a whole group. By giving the ultimate responsibility to CP-LCLs and, at the same time, excluding the legitimate civil party lawyers from having a standing before the Trial Chamber, only CP-LCL submissions and views are accepted and allowed. While grouping according to common interests and goals is in general a sound idea, the tension between individual rights of a civil party represented by its chosen counsel vis-à-vis the consolidated group represented by the LCLs has not been solved by the Rules. It is questionable whether almost 3,866 victims can be reduced to one common voice. The judges supposedly exceeded the limits of finding a fair balance between the rights of the accused to an expedient trial and the victims’ rights to meaningful participation, if victims are required to be grouped in only one consolidated group.Footnote 35 In trials of mass crimes, alternative ways of representation are necessary, and organizing victims’ groups might be the only feasible way in terms of trial management. But there should be room for divergent views among victims. Unification as one group under constraint and the objective to speak with one voice derive from a too narrow understanding of the role of victims in the courtroom, focusing only on efficiency and expeditious trials. Diverse voices of victims should be heard and respected, and a consensus is not always possible.Footnote 36
Moreover, the role of the LCLs should focus on organization, coordination, and advocacy for the civil parties. There is no client-attorney relationship between the LCLs and the individual civil parties who have chosen and mandated their personal counsel. As mentioned above, representation mechanisms are inevitable for trial management, but they cannot be too restrictive. Therefore, the judges should have allowed civil party lawyers and civil parties to address the Chamber directly under certain conditions. In this regard, it is worth noting that the ICC has taken a different approach and allows victims to appear in person following the procedures under Rule 89 of the ICC Rules of Procedure and Evidence as distinguished by participation through a common legal representative.Footnote 37 The ICC judges emphasized that the ICC Statute envisages both direct individual participation and participation through a common legal representative.Footnote 38 However, this decision also raises legal and practical concerns as it deviates from other ICC cases and from individual participation. Moreover, the decision lacks clear criteria for categorizing victims, and the procedures set forth in Rules 85 and 89 through the alternative procedure of two victim categories are abrogated.Footnote 39
In conclusion, neither civil party participation at the ECCC nor victim participation at the ICC is a full success story yet, as practical and legal questions remain unresolved. The participatory rights of the consolidated group in Case 002 are even more questionable since the Trial Chamber split the trial into sections of the indictment through its severance order.Footnote 40 Only two forced transfers and one killing site are dealt with in Case 002/01, which reduces the civil parties who are eligible in this section to no more than 974. In accordance with the Rules the remaining approximately 70% or so are not allowed to participate with full rights in Case 002/01 as they cannot demonstrate a link between their injury or harm suffered and the crimes or charges at stake. Nevertheless, and against the Rules, the Trial Chamber allowed all civil parties to participate in Case 002/01 as a consolidated group.Footnote 41 The effects will be that their ‘participation’ is merely symbolic and that reparation claims might not be possible for most civil parties because they cannot establish that they suffered harm from the severed charges.
It is not sincere to pretend to the civil parties that they can participate in a trial where those crimes from which they suffered are not dealt with.
To reach an intermediate conclusion, (i) the legal developments at the ECCC have led to victims’ participation sui generis, and (ii) calling the victims ‘civil parties’ is misleading as they no longer enjoy strong participatory rights. While civil parties are meant to be a full party to the proceedings, the Trial Chamber has practically limited their rights to a weaker type of victim participation.
3. Civil society support to the ECCC's victim participation regime
Three practical ways of participating in the ECCC's proceedings are possible for victims: (i) through selection by the Trial Chamber to be a witness, (ii) by filing a complaint, and (iii) by applying to become a civil party.Footnote 42 Practice Directions by the ECCC clarified the participation procedure and contain a standardized Victim Information Form (VIF).Footnote 43 The mandate for assisting with the forms lies with the ECCC's Victims Support Section (formerly Victims Unit).Footnote 44 The VIFs are processed within the VSS and transmitted to the appropriate office (Office of the Co-Prosecutors or the Co-Investigating Judges). As outlined in section 2 of this article above, legal representation is then organized by the ECCC in a scheme that has evolved over time. With more than 8,000 complaints and civil party applications received by the VSS,Footnote 45 the workload was enormous. Only with the support of civil society organizations and innovative support schemes on all levels, was it possible to establish co-ordinated civil party participation. However, it remains a challenge to regularly and properly inform a huge number of civil parties, but even more of a challenge to consult with them, get their informed instructions, and thus to get them involved.
It is practically impossible for all victims to participate in the courtroom in the same manner due to time constraints. Given their complexity, international criminal trials already take many years before a verdict is reached, and, thus, the development of a comprehensive system is necessitated. To provide an example, the Cambodian Human Rights and Development Association (ADHOC) made use of its nationwide structure and established a civil party representatives scheme to facilitate more active participation.Footnote 46 This mechanism anticipates 122 civil party representatives in different Cambodian regions. The representatives are designated ‘focal persons’ and ensure communication in two directions: first, they are more actively engaged in attending the court proceedings and are trained on legal matters on a regular basis. Second, they share their knowledge with the remaining civil parties in their region. The goal is to spread the information broadly and to engage and empower more civil parties.Footnote 47
Without the NGOs’ activities the civil party mechanism would not have been used by many victims and a large number – especially in the provinces – would not have been reached. NGOs informed the public about the court proceedings by the distribution of newsletters, other publications, radio shows, films, and community-based outreach events.Footnote 48 Besides outreach, NGOs also ensured the submission of civil party applications and assisted the victims throughout the process. In contrast, the activities by the ECCC/VSS only developed over time and were not in place at the beginning. There was initially insufficient funding, and victim support was established at a later stage.Footnote 49 NGO activities assisted in filling the gaps, and the main practical stages of the civil party participation process can be summarized as follows: outreach to potential civil parties; submission of civil party applications; processing of forms; finding legal representation; attending the trial;psychological support; and communication.Footnote 50 Other tribunals and the ICC can learn from the practical hurdles and should set up an all-embracing system for sufficient support. From a practical perspective, support requires sufficient funding and planned activities inside and outside the court(room). This demonstrates that victim participation is not limited to the courtroom, but non-judicial measures play a vital role, if not the most important role, in empowering victims. Only then can meaningful participation be achieved.
4. Conclusion
The outcome of Case 001 and the new participation scheme of Case 002 mentioned above lead us to one fundamental question: is it possible to contribute to the reconciliation process through these trials, and how can victims be included in a meaningful way into these legalistic and much formalized procedures? Hand in hand with this leading question, we must think about the purposes of punishment and the different understandings of justice: are international criminal trials purely métiers légaux, based on a retributive understanding of justice, or can we integrate other aspects, such as reconciliation?
The author of this article's hypothesis is that broad victim participation as parties in criminal trials is difficult to reconcile with the focus on perpetrators and proving their guilt beyond reasonable doubt. Moreover, some judicial actors (judges, prosecutors, defence, and civil party lawyers) within this legal arena have a specific, application-orientated understanding of justice, which affects their decisions and makes it very difficult to broaden the scope of criminal-law-based tribunals. Therefore, non-judicial mechanisms are always needed to complement trials, allowing, for example, for a greater visibility of victims.
Possibilities within trials are limited by the legal setting. As the main purpose of any criminal trial is the determination of the guilt of the accused and the goal to end impunity, trials have to be conducted in a timely manner, based on an evidentiary assessment. Judges have to strike the correct balance between safeguarding the rights of the accused and allowing victims to participate in the proceedings. Criminal tribunals necessarily have limitations due to various factors, such as their (i) budget, (ii) mandate, (iii) structure, (iv) jurisdiction, and (v) extrajudicial aspects (such as the background of personnel, political agenda, etc.).
Another important aspect concerns the narrow understanding of justice by key actors that operate the process, and it is difficult, if not impossible, to change their attitude. I will give two examples to illustrate how the ECCC has taken this path, excluding purposes of criminal trials other than retribution and expedient trials.
First, while a combination of retributive and restorative mechanisms is reflected in the court's design and procedural framework, including, for example, civil party participation with the aim of creating increased visibility and to realization of a common (international) standard for victim participation,Footnote 51 the judicial practice outlined above has taken a different avenue. Civil party participation at the ECCC has arrived at weak victim participation sui generis, limiting the rights of the civil parties significantly, and should not be labeled ‘civil party’ participation anymore.Footnote 52 One might agree with the Trial Chamber that some limitations are inherent to the nature of criminal proceedings,Footnote 53 but these should have been taken into account at the outset when designing civil party participation. Otherwise, high expectations are dashed, and changing the rules in the middle of the game creates the perception of injustice from the victims’ point of view.
Second, it can be demonstrated by the Kaing Guek Eav sentence that retributive understandings of justice prevail in some criminal trial settings, and the benefit for reconciliation is otherwise questionable. The accused received the highest possible sentence, whereby, from the author's point of view, considerable mitigating circumstances were not adequately taken into account.Footnote 54 With regard to the high sentence, it was the author's impression from attending the appeal verdict at the premises of the ECCC that the question of revenge dominated the public opinion and victims’ perceptions,Footnote 55 as some civil parties were very disappointed with the first sentence handed down by the Trial Chamber, however others were satisfied.Footnote 56
In contrast to these restrictive legal developments at the ECCC turning to retribution, efficiency and practical necessities as the governing purpose,
justice should not only address traditional retributive justice, i.e., punishment of the guilty, but should also provide a measure of restorative justice by, inter alia, allowing victims to participate in the proceedings and by providing compensation to victims for their injuries.Footnote 57
As a matter of fact, the ECCC itself acknowledged that ‘the inclusion of civil parties in proceedings is in recognition of the stated pursuit of national reconciliation’.Footnote 58 Inclusion of a victim-centred approach to justice might leave a real legacy to victims.Footnote 59 However, the ECCC denied almost all reparations in Case 001 and continuously restricted the voices of victims in the courtroom. This trend has increased in Case 002 with the outlined representation scheme that leaves little room for visibility of civil parties. In the end, to put it in Sá Couto's words:
[T]hese proceedings remain criminal trials with significant time and logistical constraints, making it difficult to accommodate the desire of victims to tell their stories or to talk about their experiences on their own terms.Footnote 60
For these reasons, victim participation within criminal trials cannot be the only solution. A comprehensive approach must embrace two layers: (i) the legal arena, bearing in mind the limited role civil parties can play in this setting, and (ii) the non-legal arena, taking into consideration the sociocultural setting. With regard to global justice, the ECCC leaves a positive legacy for civil parties insofar as it was one of the first international(ized) criminal courts that involved them as actors in the proceedings. Many voices of civil parties were heard and they could actively participate in Case 001. If international justice is regarded as a mechanism for peace and reconciliation, victims must be included as an actor. Yet, as outlined above, the ECCC cut back civil parties’ rights, and was not able to find a balance between civil parties’ demand for meaningful participation – as opposed to purely symbolic participation – and the rights of the accused and a fair and impartial trial. The ECCC, as well as other courts, must try to achieve such a balance, taking into consideration the following recommendations:
1. The Rules on participation and representation for victims have to be clear and consistent from the beginning and establishment of a court;
2. The representation scheme should be improved. In particular, the relationship between individual rights and group interest has to be defined and there should be possibilities for individuals to address the court directly and actively (under pre-defined legal conditions);
3. The system of a common representativeFootnote 61 needs fine-tuning (selection process; relationship with mandated lawyers; dispute settlement mechanism); payment of adequate salaries for civil party lawyers;
4. Adequate financial support has to be allocated to the victims’ section and to the lawyers, as well as to supporting NGOs (outreach); and
5. Alternative forums for victims outside the courtroom should be taken into account as complementary mechanismsFootnote 62 and their funding ought to be addressed as well.
