Transitional Justice and Peacebuilding on the Ground: Victims and Ex-Combatants (Law, Conflict and International Relations) (27 page)

During the negotiations for the ECCC in the late 1990s, victim participation was not seen as important or central to the suggested mandate of the tribunal. In the first reports of the Secretary-General updating the General Assembly about the development of the ECCC (2003–05), there is no information regarding the participation of victims.
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It was only when the Internal Rules were drafted in 2007 that a Victims Unit was established and a Practice Direction on Victim Participation was issued elaborating on their role. The Victims Unit was a late addition, and resulted in a request for increased budget. This inclusion of victim participation in the Internal Rules was unique and due to the hybrid nature of the court. The Criminal Procedure Code of Cambodia states that civil parties have the same right to be heard as other parties to criminal proceedings and allows their involvement through all the stages of the trial. Once the rule was established, Cambodian NGOs recognized the importance of the mechanisms and played an instrumental role in supporting the ECCC’s work in this area, resulting in a high number of applications.
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However, it has not been easy to adapt this mechanism to cases concerning mass atrocity crimes. A number of challenges arose during the first trial, resulting in significant alterations to the victim participation process. The ECCC had to make a number of decisions in order to streamline the process while balancing the rights of victims.

During the trial of Duch, 90 civil parties participated, divided into four groups.
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As mentioned, civil parties have the same rights as other parties and so are allowed to ask questions of witnesses, experts, and the accused through their lawyers. Each group had one international and one Cambodian lawyer, which meant that, after the prosecution and defense, there could be questions from a further eight lawyers. There was often repetitive questioning and this slowed down the trial. Subsequently, in June 2009, the Trial Chamber introduced time limits to questioning. It was clear, however, that there would still need to be further changes. With four defendants and 3,850 civil parties, it soon became clear that this model would be untenable for the second trial. Therefore, instead of having one international and one Cambodian lawyer representing each civil party group, there is one international lead co-lawyer and one Cambodian lead co-lawyer representing all civil parties as a consolidated group.
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This model will hopefully facilitate coordination, but it remains to be seen how it will work during the second trial, and to what extent all civil parties will feel included.

Reparations and the Victims Support Section

The Group of Experts’ report in 1999 recommended that monetary reparations be awarded to victims from the wealth of Khmer Rouge leaders convicted by the tribunal.
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During the process of negotiation, there was a great deal of advocacy from both Cambodian and international NGOs regarding the fact that there were no provisions for reparations.
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Eventually, the Internal Rules allowed for “moral and collective reparations” to be awarded to the victims. It was unclear what this meant, and the four groups of civil parties in the Duch trial put forward a number of requests, such as access to medical care and education, a national commemoration day, and construction of pagodas. In the Berkeley Human Rights Center survey, the types of reparations most requested by victims were social services, infrastructure, economic development programs, and memorials.
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Disappointingly, the verdict of the Duch trial provided extremely limited reparations. First, the names of the 66 civil parties and their relatives who died were included in the judgment. Second, the ECCC compiled all statements of apology made by Duch during the trial into a 27-page document and published 10,000 copies for distribution.
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Other requests were considered outside the competence of the ECCC or lacking specificity. This led to great disappointment on behalf of the civil parties and criticism over the lack of initiative from the ECCC.
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The Supreme Court Chamber took the same restrictive view of reparations at the Duch appeal, stating that it had no jurisdiction to grant requests that would need the involvement of Cambodian authorities to be realized.
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However, a number of changes to the rules regarding reparations should provide more opportunities to think creatively in the second trial. The mandate of the former Victims Unit, now called the Victims Support Section, has been expanded to support these changes. There will now be a single claim for collective and moral reparation from all the civil parties, which can seek a limited number of awards.
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As stated in Rule 23, the Chamber may a) order that the costs of the award shall be borne by the convicted person or b) recognize that a specificproject may be implemented, which should have been designed or identified in cooperation with the Victims Support Section and have secured external funding.
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However, there is still concern regarding the funding of such awards.
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The new mandate of the Victims Support Section includes the development and implementation of non-judicial programs and measures aDDRessing the broader interests of victims.
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These can be developed with external governmental and non-governmental organizations. These non-judicial measures are particularly important and relevant when 90 percent of respondents to the Berkeley Human Rights Center survey believed it was important to provide symbolic reparations, the majority believing that reparations should go to the community and only 11 percent believing that they should go to individuals only.
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Non-Judicial Initiatives

In the absence of an official truth commission process in Cambodia, the need for memorialization and reconciliation initiatives has been filled by NGOs and civil
society. The Victims Support Section has the opportunity to work with civil society, drawing on the expertise of Cambodian NGOs to develop the non-judicial measures and externally funded projects that can be awarded as moral and collective reparations.

The Documentation Center of Cambodia (DC-Cam) has carried out a wide range of activities to support its aim of documenting the crimes and atrocities of the Khmer Rouge era. It has the largest collection of primary documents on the Khmer Rouge and has catalogued approximately 155,000 pages of primary Khmer Rouge documents and more than 6,000 photographs.
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One of its projects, the Genocide Education Program, developed a textbook on the Khmer Rouge period, and assisted the Ministry of Education in training nearly 4,000 teachers on how to use the text.
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A wide variety of materials have been produced, including posters, guidance for teachers, and workbooks for students. This is a particularly important project since very little on the subject has been taught in Cambodian schools in the past. Furthermore, DC-Cam has begun advocacy regarding a truth and reconciliation process that fits the social and cultural context of Cambodia. One of its proposals is to build on the experience of this Genocide Education Program to start a project on memory and reconciliation. The project proposal is for trained teachers to use the knowledge gained through training to expand their activities from teaching to broader community outreach. The main project activity will be to collect testimony from Cambodians about their experiences under the Khmer Rouge. The goals are to “establish a big picture narrative of this important period of Cambodian history … an environment that fosters social healing … engaging communities in narrative.”
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The Transcultural Psychosocial Organization (TPO Cambodia) provides a great deal of psychological support and counseling to civil parties and witnesses at the ECCC, and has also developed a treatment approach that is appropriate to the specific cultural and human rights dimensions of mental health in Cambodia. Victims of the Khmer Rouge talk about their experience and write a testimony of what they have experienced. This is then read aloud during a Buddhist ceremony in the presence of other victims or members of their community. This ceremony allows them to express their traumatic experiences and honor the spirits of the dead, as well as documenting the human rights violations that they have suffered.
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This mixture of testimony, therapy, and spirituality has achieved very positive results.
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The International Center for Conciliation (ICfC) has a “Justice and History Outreach Project,” which focuses on empowering communities. ICfC worked with Youth for Peace (YFP), a local NGO, to work with six villages to develop goals to engage with and heal from the past.
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YFP had found in its previous work that many young people do not believe that atrocities took place
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and so the project also facilitated communication with the younger generation and in addition provided information concerning the ECCC. The project was very intensive, with a number of stages, including ICfC staff spending ten days living in the village. ICfC staff helped villagers and YFP to design and organize activities to meet their own needs, including village dialogues, visits to Phnom Penh to sites
such as S-21, the ECCC, and Cheung Ek (the Killing Fields), and the construction of memorials.
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The project was seen as an effective way of bringing young people together with Khmer Rouge survivors and provided a space for sharing and learning about their experiences.
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Participants also reported a greater sense of community, greater self-disclosure of their experiences under the Khmer Rouge, and fewer social constraints in talking with others.
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Although this is a small project, involving five or six villages a year, it has had a lasting impact on the communities involved. These are just a few examples of initiatives that have been undertaken; there are many more for the Victims Support Section to draw on for the broader benefit of victims.

Conclusion

It is clear that peacebuilding and transitional justice activities in Cambodia faced an extremely challenging context. The desire for amnesty and will to move forward with accountability very much relied on the RGC’s position. The experience in Cambodia makes clear that any consideration of sequencing of peacebuilding and transitional justice activities predominantly relies on the context. There was no possibility to plan sequencing or engagement between DDR and transitional justice, and a much more pragmatic approach was needed and taken. The final structure of the ECCC was the product of lengthy negotiations between two parties with very different goals, resulting in a compromised tribunal. The attempts at DDR should be evaluated against the backdrop of ongoing problems with corruption and lack of rule of law in the country.
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Even the ECCC has not been immune to these accusations, with ongoing controversy regarding additional prosecutions and claims of political interference. If these problems tarnish the reputation of the ECCC, victim participation has the potential to be its lasting legacy, with a number of lessons for other countries regarding management of the process. This provides another example of the necessity of taking a pragmatic approach and taking advantage of opportunities as and when they arise. Although the participation of victims was not planned for during the negotiations and the early years of the ECCC, from 2007 and with support from civil society, this aspect has become vital to the Court’s work. Despite the difficulties with the numbers of civil parties during the trial of Duch, their testimonies and presence were extremely important. With the thousands of civil parties in the second trial, there is still a lot of work to be done to ensure that their participation is meaningful and that the non-judicial measures to be developed by the Victims Support Section are designed in a collaborative manner with those they are meant to benefit. This will provide a basis for victim-centered justice for the ECCC and an example for other courts and tribunals.

Notes

1
 See Ben Kiernan, “Conflict in Cambodia 1945–2002,”
Critical Asian Studies
, vol. 34, no. 4 (2002), pp. 483–95. I define the conflict period from the outbreak of civil war in Cambodia to the final surrender and capture of the Khmer Rouge leaders.

2
 David Chandler,
A History of Cambodia
(Boulder, CO: Westview, 2008), p. 259.

3
 Ibid., pp. 256–57.

4
 Kiernan, “Conflict in Cambodia 1945–2002,” op. cit., p. 492.

5
 Freedom House,
Countries at the Crossroads
.
Country Report
–
Cambodia
. 2010, available at <
www.freedomhouse.org/template.cfm?page=140&edition=9&ccrpage=43&ccrcountry=179
>.

6
 For a detailed exploration about the relationship between peacebuilding and transitional justice, see Chandra Lekha Sriram and Johanna Herman, “DDR and Transitional Justice: Bridging the Divide?”
Journal of Conflict, Security & Development
, vol. 9, no. 4 (December 2009) and Chandra Lekha Sriram, Olga Martin-Ortega, and Johanna Herman, “Beyond Justice Versus Peace: Transitional Justice and Peacebuilding Strategies,” in Karin Aggestam (ed.),
The Study of Just and Durable Peace
(London: Routledge, 2012).

7
 UN, “Cambodia UNTAC: Facts and Figures,” available at <
www.un.org/en/peacekeeping/missions/past/untacfacts.html
> (last accessed July 1st 2011).

8
 Michael W. Doyle and Nicholas Sambanis,
Making War and Building Peace
(Princeton, NJ: Princeton University Press, 2006).

9
 Agreement on a Comprehensive Political Settlement of the Cambodia Conflict, Article 17. United Nations, Department of Public Information, Agreements on a Comprehensive Political Settlement of the Cambodia Conflict: Paris, 23 October 1991, January 1992, 7–40.