Opinion: Collective reparations measures for victims in the Extraordinary Chambers in Courts of Cambodia: Policy Arguments and Legal Observations regarding the Reparations Appeal of Case 001
On 26 July 2010, the Extraordinary Chambers in the Courts of Cambodia (ECCC) handed down their judgment for Case 001. The defendant, Kaing Guek Eav (known as Duch, 67 years old at the time of sentencing), a former chief of Tuol Sleng detention center, was found guilty of committing crimes against humanity (among other crimes), and sentenced to 35 years imprisonment (the sentence was reduced by 5 years as a result of his illegal detention).
HRN has continued to make proposals, from the perspective of national reconciliation in Cambodia in the peace building process, regarding the necessity of victim participation in the ECCC and also regarding what form victim participation should or could take in the ECCC (including in the reparation measures system).
The ECCC has, in fact, recognized the participation of victims as “Civil Parties” to the court process, and has also adopted a system that allows claims for collective and moral reparations.
Subsequently, the Court, in the judgment of the first instance of Case 001 (July 2010), ordered certain types of reparations be made. However, those reparations measures were limited to two measures: i) to compile all statements of apology and acknowledgments of responsibility made by the defendant during the course of the trial, and this compilation will be posted on the ECCC website after the judgments in his case become final; and ii) to declare that the Civil Parties to the judicial process had suffered harm as a direct consequence of the defendant’s crimes. Such measures of reparation must inevitably be regarded as being unduly restrictive.
HRN has prepared a legal memorandum which contains a legal analysis of problems concerning the reparations measures in the case, in the hope that it will become a reference for those involved in the ECCC.
HRN released a statement on 13th August 2010 which expressed HRN’s hope that “the ECCC’s appeal mechanism will duly examine whether or not these reparation measures were adequate under the rules of the ECCC, given the nature of the damage suffered by victims. HRN further hopes that that the ECCC will grant other types of reparation measures based on the specific facts of each case in future trials”. HRN also stated that “The ECCC has opened the door for victims to claim moral and collective reparation, and HRN calls on the international community to support in more concrete ways, the realization and implementation of those measures of reparation”.
The legal memorandum released by HRN indicates the legal issues and problems in the trial court judgment of Case 001, and demonstrates afresh the necessity of reviewing and reconsidering the reparations issue.
In addition, for Case 002, amendments to the ECCC’s Internal Rules have been phased-in, and much wider policies have been recognized, such as allowing for the use of external funding, in order to realize more reparations measures. However, the decision on the reparation measures that will be made in the appeal of Case 001 itself has significance as a case study for victims of Case 001 as well as for the international community because they call attention to reparations for result of grave international human rights violations. HRN will continue to monitor developments with respect to issues of reparation in Case 001.