HIGHLIGHTS OF ISSUES RELATED TO CIVIL PARTY PARTICIPATION DURING CASE 002/01 TRIAL
The Inclusion of Civil Parties
The ECCC is unique among international court because of the inclusion of mechanisms to provide a legal voice to victims. Internal Rule 23 grants victims a standing as a party to the proceedings with the right to participate in the trial and seek the accountability of the perpetrators as well as obtain reparations for their suffering. This innovative step taken by the ECCC took the form of providing those whose claims of injuries are considered to be sufficiently substantiated during the investigative and pre-trial stage with the status of Civil Parties. Civil Party participation in the proceedings was implemented during Case 001 and further contested and developed in Case 002/01, as multiple problems came up regarding the role of civil parties versus the role of witnesses and the issue of Court-mandated reparations.
Of 3,866 civil parties admitted in Case 002, 31 victims were chosen to testify in front of the Court due to “the evidence they could provide on suffering, the relationship between this evidence and the crimes being tried in Case 002/01, and the diversity of impacts (suffering) represented.” [i] The civil parties’ experiences under the Khmer Rouge and the evacuation of Phnom Penh ranged widely, with some civil parties sharing experiences of living through the evacuation and abysmal work conditions as discriminated 17 April people, contrasting with some civil parties explaining their work as lower level KR cadre. Though their experiences may have varied, collectively, the Civil Parties’ testimonies provided insight into the suffering and hardship endured by many of the people of Cambodia under the Democratic Kampuchea regime. Furthermore, the ECCC purposefully included Expert Witness Mr. Chhim Sotheara’s testimony in Case 002/01 in order to assess the psychological impact of the crimes committed by the KR regime.
Along with the discussion of trauma the victims experienced by Dr. Chhim Sotheara, this post aims to highlight the major issues involving Civil Parties throughout the course of the proceedings. AIJI’s Issues throughout the trial linked throughout also provide more in depth information regarding issues of trauma, reparations, and legal questions concerning Civil Parties’ participation.
Discussion of Trauma
Expert Mr. Chhim Sotheara’s 19 years in the field of psychiatry, along with multiple years specifically working with KR victims, informed his testimony before the ECCC. Chhim Sotheara specifically noted that a cultural understanding of trauma reveals why many victims appear outwardly normal, explaining that the KR encouraged Cambodians to remain silent about their suffering. This silence makes discussions of interpersonal issues difficult to communicate for KR victims. Given that most victims’ symptoms were largely left untreated, psychological issues have persisted and made it difficult for victims to integrate.
Chhim Sotheara testified that continuing trauma affects everyone, though he noted especially aggravated cases of trauma occurred to victims who were either subjected to torture and hard labor in Children’s Units, were orphans at the time, or were “New People” who lost their sense of identity. The Witness confirmed trauma also persisted among Cambodians who had left the country. He also maintained that 14% of KR Survivors suffer from PTSD and 11.5% from major depression but added that issues derived from KR trauma manifested themselves in many forms of illness.
Chhim Sotheara explained that, in order for victims to recover, they need:
- Medical treatment and counseling services
- Culturally sensitive measures that respects victims’ identity while also allowing them to find closure and move forward. This requires finding harmony, justice, and truth and also having a venue to share their experiences
- Economic needs met
Along with the necessity of more direct psychological treatment, the Expert Witness also stated that, as evidenced by testifying CPs, the ability to discuss the KR experience was also necessary. For the CPs, the process of presenting was difficult emotionally in the short term, but proved beneficial psychologically later on. Their testimony also helped other victims feel more comfortable expressing their own experiences. Chhim Sotheara generally discussed the importance of sharing the trauma experienced during the Khmer Rouge for victims, and encouraged the Court to continue its reparation endeavors in order to grant Civil Parties and the greater Cambodian public some semblance of closure.
To see AIJI’s in depth coverage of Expert Witness Chhim Sotheara’s testimony, click here.
Issues with Reparations
Since the trial of Case 001 it was established that the Court will not grant individual reparation to the victims. As established by Rule 23 quinquies, the Chambers can only award “collective and moral reparations” to the Civil Parties if the Co-Accused are convicted.[ii] Possible reparation awards would be both an acknowledgement of the harm suffered by Civil Parties as a result of the convicted crimes, as well as providing non-monetary benefits addressing the harm. The Civil Parties of Case 002/01 suggested various reparation awards throughout their testimonies, including the erection of a memorial stupa for those lost during the KR years, the provision of medical treatment for those still suffering, or other symbolic collective sites of mourning.
Despite the simplicity of many of the reparations requests, many will remain unfulfilled. The Decision of Case 001 the Trial Chamber emphasized its inability to compel national and international parties to fund for reparation projects proposed by Civil Parties. The Court largely rejected the reparation requests filed for Case 001 because they were deemed ambiguous or beyond the scope of the ECCC, particularly with regards to the ECCC not being able to compel the State of Cambodia to administer reparations and Duch’s indigence.[iii] Thus, the reparations for Case 001 were limited to a collection of Duch’s apologies and the inclusion of the CP’s names and their deceased family members in the Court’s final judgment. Though the Court managed to provide symbolic reparations, their ability to impart substantive moral justice to Civil Parties was, for the most part, limited.
This may be the reason why in the recent revisions of the Internal Rules, specifically Rule 23 quinquies paragraph 3, it is stipulated that the Chamber can only decide mode of implementation of reparation by either compelling the convicted person to cover the cost or recognizing that certain projects already give effect to the reparation sought by the Lead Co Lawyers. These projects would need to be identified and or designed with the involvement of Victims Support Section (VSS) and the funding from external sources for which should have been secured,
With regards to Case 002, the Civil Party Lead Co-Lawyers effectively submitted a list of specific reparation requests from the Court on 23 September 2013. Among the requests are the establishment of a National Remembrance Day, a memorial of some kind, testimonial therapy and self-help groups, as well as an addition to school curriculum discussing the forced population movement.[iv] Despite the relatively few specific requests made by the multitude of Civil Parties, it is unclear whether the necessary collective moral reparations will be fulfilled. Civil Party lawyer Elisabeth Simonneau-Fort deplored the difficult position of the civil parties, arguing, “There will not be a significant and just verdict without reparations that are equally significant and just,” referring to the fact that Civil Parties are expected to find resources for reparations on their own.[v] Fort encouraged national and international donors to consider the difficulties of achieving justice for civil parties with limited access to potential financing solutions, though given current Court financial difficulties Fort’s demands remain unfulfilled.
Civil Party’s Knowledge of Role in Proceedings
Another issue that should be further ensured in future trials by the Chamber and Civil Party lawyers is the understanding the involved Civil Parties (CP) have of their own roles. On a few occasions, CPs illustrated a lack of knowledge regarding claims for reparations. For example, Civil Party Klan Fit discussed his lack of understanding of the term “civil party” and further stated he did not want reparations, but rather just an explanation from the Co-Accused. This was also an issue with CP Em Oeun, who expressed a lack of preparation by his counsels regarding the harms he suffered and the basis for reparations he felt are needed. Read AIJI’s coverage of the Civil Party discussion here for CP Klan Fitt, and here for CP Em Oeun.
Legal Issues with Civil Party Inclusion in Case 002
As mentioned above, the mode of representation of Civil Parties in Case 002 differed from Case 001. In an apparent response to the significantly larger number of Civil Parties involved in Case 002, as well as to maintain time effectiveness in the court proceedings, the ECCC introduced the mechanism of Lead Co Lawyers representing all other Civil Party Lawyers. While this mechanism seemed to be working largely well in maintaining the time-effectiveness during the proceedings, the Civil Party participation in Court was not free from being questioned by the Defense.
In large part, issues arose regarding the difference between the Civil Party testimonies and that of Witnesses interviewed by the court. In particular, Nuon Chea international defense lawyer Michiel Pestman found issue with the Chamber not requiring parties to take oath before giving testimony, particularly when the CPs testified as to facts of the case. Further discussion of the inclusion of CPs as parties different than witnesses was brought up by Ieng Sary’s international counsel Michael Karnavas, who argued that the practice of CPs consulting with their lawyers during their testimonies should be considered inappropriate. In both cases, the Chamber found that civil parties are fundamentally different from witnesses when they testify in Court, as they are parties to the proceedings. Read KRT Monitor’s coverage of more CP discussion here.
Another issue involved the statement of suffering, which is given by the Civil Parties to inform the Court on their suffering throughout Case 002. While when they provide factual testimony subject to examination by other parties CPs were also bound to testify only within the scope of Case 002/01, the statement of suffering was not put under the same restriction. However, the statement itself was not to be subjected to examination by the Parties. The Defense Lawyers raised issue with the Chamber limiting their ability to cross-examine the facts CPs may provide within their statement of suffering. In particular, Khieu Samphan international Co-Defense lawyer Anta Guissé criticized the inability of the Defense to respond to allegations made by the CPs during their statements, after which the Chamber informally adopted the practice of inviting the Defense to comment only after the Civil Party has left. However, the Chamber asserted on a later date that while statements of suffering generally are not subject to cross examination, if new evidence is introduced or baseless accusations are made by the Civil Parties during their statements, the CPs may be recalled to be re-examined. Thus statement of suffering cannot be used as a pretext for new facts or evidence. Read in depth coverage of examples when this issue came up here and here.
Civil Party Legacy?
The involvement of victims as parties in proceedings such as what ECCC has adopted through Civil Party mechanism is indeed a breakthrough in the practices of international and hybrid tribunals. However its implementation has been hampered by a number of factors, including lack of funding and the inability of the Court to directly answer reparation requests due to its limited jurisdiction. While the Civil Parties’ statements of sufferings and Chhim Sotheara’s testimony served to reinforce the importance of providing reparation and collective trauma relief for the victims, the Court’s lack of mechanism to uphold his and the CPs recommendations means the Court’s impact is limited. In terms of CPs participation in the proceedings, there seemed to be a need for a more effective mechanism and support for Civil Party Lawyers to communicate with and keep their clients informed. Clearer ruling on the distinction between CPs and Witnesses’ role may be good as well in avoiding the legal debates in future proceedings.
Authored by Francisca Gilmore and Aviva Nababan