Reduced victim participation: a misstep by the Extraordinary Chambers in the Courts of Cambodia.

• Published date: 01 January 2011
• Author: Sokol, David S.
• Date: 01 January 2011

I. INTRODUCTION

On August 27, 2009, the Extraordinary Chambers in the Courts of Cambodia ("ECCC") issued a verbal ruling altering the extent to which victims of the Cambodian conflict are allowed to participate in the prosecution of their tormentors and former members of the Khmer Rouge. (1) Prior to this decision, victims of the conflict were, after joining a Civil Party, allowed to question the Accused on all factual topics before the Trial Chamber. (2) However, following the decision, victims are no longer able to question the Accused on his character or on other matters pertinent to sentencing. (3) At the heart of the decision was a desire to balance the goals of the ECCC with the need to increase efficiency and the right of the Accused to have a fair and just trial as required under international law. (4)

Ultimately, the decision places too much emphasis on the perceived need to increase the efficiency of the trial proceedings, and neglects the ECCC's goal of national reconciliation. Additionally, the decision undermines the healing power accompanying full victim participation throughout criminal trial proceedings. Finally, the decision runs contrary to the rules and regulations on which the ECCC is based, as well as the Cambodian Constitution.

A. History of the Khmer Rouge Conflict

In order to fully understand the goals of the ECCC, it is useful to briefly examine the conflict which resulted in the need for an international tribunal to prosecute those responsible for the atrocities of the conflict.

From April 17, 1975, to January 6, 1979, the country's Communist Party, the Khmer Rouge regime, ruled Cambodia. (5) During this period, countless crimes against humanity and murders were committed, (6) and as many as three million people were killed. (7) On December 18, 2002, the General Assembly of the United Nations passed Resolution 57/228, calling for the creation of a joint U.N.-Cambodia hybrid tribunal in order to prosecute those responsible for the Khmer Rouge. (8) A formal agreement between the U.N. and the Royal Government of Cambodia was signed on June 6, 2003, in Phnom Penh, Cambodia, (9) creating the Extraordinary Chambers in the Courts of Cambodia, a Cambodian court supported by the United Nations which operates independently from other Cambodian courts. (10)

One of the major innovations and unique elements of the ECCC is the role that victims of the Khmer Rouge regime play in the Court. Victims can submit complaints to the Co-Prosecutor in hopes that they will be investigated and prosecuted. (11) Additionally, victims can petition to become part of the trial proceedings by seeking status as Civil Parties. (12) The Civil Parties are comprised of victims of the Khmer Rouge regime and are represented by counsel during the trial proceedings. (13) Specifically, under Rule 23(1) of the Internal Rules of the ECCC, the purpose of the Civil Party action before the ECCC is for the victims to "[p]articipate in criminal proceedings against those responsible for crimes within the jurisdiction of the ECCC by supporting the prosecution" and "to seek collective and moral reparations, as provided in this Rule." (14) According to the ECCC, the Civil Parties are accorded the same rights as other parties and are given a great deal of freedom and responsibility in the criminal proceedings. (15) As of May 31, 2010, over 8,200 victims had filed applications in order to join either the Victims Unit or a Civil Party. (16)

The prosecution of the first Khmer Rouge defendant, Kaing Guek Eav (alias Duch) began on March 30, 2009, (17) and closing statements concluded on November 27, 2009. (18) From the beginning of the trial, the precise role that Civil Parties should play in the trial and prosecution was somewhat contentious. The Defense objected from the beginning of the trial to the rights of the Civil Parties to question the Defendant's character as it pertained to sentencing guidelines. (19) On August 27, 2009, the ECCC issued two verbal decisions limiting the role Civil Parties can play in the prosecution of members of the Khmer Rouge. (20) The written reasoning behind the decisions defining Civil Party rights during trial proceedings was issued on October 9, 2009. (21)

The Chamber, after reviewing Civil Party Groups 1 and 2's joint request for a ruling in favor of standing to make submissions pertaining to sentencing, rejected the claims that the Civil Parties should have standing. (22) As a result, Civil Parties are now barred from making submissions regarding the sentencing of the Accused. (23) The Chamber further held that Civil Party attorneys may not ask questions pertaining to the character of the Accused or certain enumerated witnesses and experts. (24) The holding also narrowed to fifteen days the window for written applications seeking status as a Civil Party. (25) Previously, one could apply to be a member of the Civil Party "[a]t any time during the judicial investigation.'' (26) In large part, the Chamber's decision was based on a desire to increase the efficiencies of the Chambers. (27) Unfortunately, as this paper argues, the decision goes too far and sacrifices much in the interest of increased efficiency.

B. Background on Civil Parties

1. The French Partie Civile

The role of the Civil Party in criminal proceedings began in the French legal system. (28) Under that system, a victim could apply to join the prosecution as a Civil Party with a plainte avec constitution de partie civile. (29) The standards for who was able to be joined as a Civil Party varied by jurisdiction, but historically, the individual must have suffered a personal and direct harm. (30) However, in instances where the literal victim is incapacitated or dead, the victim's heirs are able to bring an action civile on behalf of the victim. (31) It is commonly recognized that the action civile provides several benefits. (32) By being a party to the action, Civil Parties are able to claim damages resulting from the actions of the offender. Additionally, the victim is able to achieve moral reparations by playing an active role in prosecuting the alleged offender. (33)

2. Civil Parties in Other Courts

Civil Parties also play a role in the International Criminal Court (ICC). Indeed, in an effort to increase the restorative and reparative abilities of the court, the ICC was the first international criminal tribunal to adopt victim participation. (34) The ICC is also the first international court to have a separate pre-trial chamber. (35) The ECCC shares this same judicial structure. (36)

The ICC further recognizes that "[i]t is through the process of victim participation ... [that the Court] can recognize and value the plight of victims." (37) Among other rights conferred to victims participating in criminal proceedings in the ICC, the Court grants the victims the right to participate in sentencing of the accused and questioning of witnesses. (38)

Although the definition of participation is not explicit in any ECCC sources, it is thought to mean "having a say, being listened to, or being treated with dignity and respect." (39) Moreover, the process of victim participation is thought to allow for healing and rehabilitation of the victims. (40) Some scholars further acknowledge that "the participation of victims may assist courts 'in making a contribution to the reconciliation of a community or nation more generally,"' (41) while at the same time increasing the probability that those most affected by the alleged acts are persuaded that justice is achieved. (42)

When the ICC was debating whether to include victim participation in its proceedings, it weighed the prospective benefits of such a move with the possible cost to efficiency. (43) The ICC nevertheless decided to allow Civil Party participation. (44) Undeniably, the ICC recognizes the valuable role that victims can play in sentencing. (45)

3. Civil Parties in the ECCC

The integration of Civil Parties into the ECCC might be one of the most progressive ideas of the Chambers. (46) Due to the mass casualties under the Khmer Rouge regime, the vast majority of victims participating as Civil Parties are relatives of the actual victims of the Khmer Rouge.

The ECCC, under Internal Rule 23, mandates that the individual must have suffered a physical, material, or psychological injury. (47) Individuals claiming such an injury may submit an application in writing to the Co-Investigating Judges who may reject or accept the application. (48) Under the traditional French system, if the Civil Party loses, the victim is liable for costs and might even be subject to criminal penalties for bringing a malicious claim. (49) However, the ECCC, by implementing a mandatory application process, seems to have preempted any liability on the part of a party erroneously claiming injury and the right to be part of a Civil Party. The application process provides a vetting system to ensure that only parties meeting the requirements under the Internal Rules are allowed to join a Civil Party. (50)

Historically, the public prosecutor plays an active role in the prosecution of the Accused, while Civil Parties tend to take a lesser role in the prosecution. The public prosecutor conducts most of the hearing and trial while Civil Parties serve as support. (51) The ECCC has adopted this historical function by explicitly granting the Civil Parties the role of "supporting the prosecution." (52) This supporting role suggests that the authors of the Internal Rules did not wish for the Civil Parties to play a completely separate role, but instead, felt it necessary for the actions of the Civil Parties to be closely tied to those of the Prosecution.

The ECCC is a hybrid court, (53) meaning that its laws are based on both international and Cambodian law. (54) The Chambers has held that the Internal Rules of the Chambers will govern in instances of conflict. (55) As a former French colony, Cambodian law is premised on the French model of...