By Mary Orsini, Law & Policy
“There is no handy roadmap for reconciliation [but e]xamining the painful past, acknowledging it and understanding it, and above all transcending it together, is the best way to guarantee that it does not – and cannot – happen again.”
As the first international court to offer the prospect of accountability and reparations to Civil Parties (a legal term referencing the victims recognized as participants in the ECCC proceedings) based on the convictions of individuals, the Extraordinary Chambers in the Courts of Cambodia (“ECCC”) provides us with valuable lessons learned that could be applied in other international legal contexts, including at the International Criminal Court (“ICC”).
With the ICC’s first conviction occurring earlier this year in the case against Thomas Lubanga Dyilo, who was found guilty of enlisting and conscripting children under the age of 15 years to participate actively in hostilities in the Democratic Republic of Congo (“DRC”), the ICC will now turn to the issue of reparations for the first time in its history. Though the harm suffered by the DRC victims will inevitably vary from the harm suffered by the victims of the Khmer Rouge in the ECCC cases, both sets of victims share at least one thing in common: They are survivors of mass atrocities categorized as international crimes.
Even though the ICC may have a wider variety of reparations available to victims than those available at the ECCC, the ICC may still look to the ECCC reparations process as guidance, specifically in determining whether symbolic reparations are positive steps towards healing and reconciliation, or rather, provide nothing of real value to the parties. Accordingly, the ICC may then have a greater understanding of the weight that should be afforded to this type of reparation.
I. A Brief History of Reparations
Reparations are a critical component in the international criminal law context. In 1927, the Permanent Court of International Justice found that the obligation to make reparations in an adequate form is among the established principles of international law. More recently, UN Secretary-General Ban Ki-moon stressed that reparations are in fact “the most significant means of making a difference in the lives of victims [as they] may facilitate reconciliation and confidence in the state, and thus lead to more stable and durable peace in post-conflict societies.”
“Unlike the regional human rights courts and mechanisms in other regions—where States are parties in the case and can be ordered to provide reparations—the mandates of the different international ad hoc and hybrid criminal courts that were constituted before the ECCC do not include a power to grant reparations . . .” except, in some cases, the restitution of property. Thus, victims must bring their claims elsewhere to obtain compensation for crimes within the court’s mandate. Given that such victims may not “apply for reparations or participate in proceedings beyond testifying as witnesses[, c]ritics argue that these omissions essentially objectify victims and turn them into mere instruments for securing convictions.”
II. The Emergence of Victims’ Rights: Reparations at the Extraordinary Chambers in the Courts of Cambodia and Case 001
Pursuant to Internal Rule 23 quinquies, the ECCC may “award . . . collective and moral reparations to victims” of the Khmer Rouge atrocities from 1975-79. In the first case before the ECCC involving former chief of the S-21 security prison Kaing Guek Eav (“DUCH”), the Civil Parties requested a wide variety of reparations including the construction of memorials, access to free medical care and educational measures. A majority of these reparations were rejected by the Supreme Court Chamber based on lack of specificity or because such requests were beyond the scope of the ECCC. There were also a number of reparations that could not be funded based upon the indigence of DUCH.
In the end, two types of reparations were awarded in Case 001. First, a compilation of apologies made by DUCH were published and posted on the ECCC website. Shortly after, the ECCC’s Victims Support Section produced a complementary print version of the apologies. Second, the names of the admitted Civil Parties and their deceased family members were included in the final judgment.
III. Cambodians’ Reactions to the Case 001 Reparations: Are Symbolic Reparations Enough?
There are a variety of opinions regarding the sufficiency of the Case 001 reparations. Mr. Sok, a Phnom Penh resident, feels that the Case 001 reparations were “good . . . but insufficient. [He] would prefer [a b]ig religious ceremony held at Tuol Sleng to indicate to the soul of those executed, done every year on the final verdict day.”
Chum Mey, one of only twelve known survivors of over 15,000 prisoners held captive at S-21, witnessed the murder of both his wife and son. When asked about the Case 001 reparations, he feels that a far more appropriate form of reparation would be “a Stupa built inside Tuol Sleng’s compound . . . for the next generation of Cambodians and the rest of the world, making sure that such crimes would not be repeated.”
Other Civil Parties shared a similar sentiment, including Mr. Sao, age 70, who feels “[i]t is inappropriate to give such kind of reparation[ because it does not] compensate [the] pain, hardship, and everything suffered at that time.” Another Civil Party applicant, age 49, explained that such reparations are “indeed insufficient[; his] relative was killed there and then [DUCH] just said sorry.”
Among Cambodians that did not participate in the proceedings, Mr. Virak, age 48, also feels that such reparations were insufficient. He explained, “In simple words, we could not boil and eat the book.” Ms. Vortey, a 25-year-old NGO staff member, feels that Duch should be escorted to meet with victims in their homes to show his apology and ask for forgiveness.
Some took a slightly different approach, including Mrs. Sry, age 52, who explained that “[t]he pain and hardship [she] endured in the regime is too much, and nothing can compensate such painful memory and experience.” Youk Chhang, the director of the Documentation Center of Cambodia, questions how “a court of law [could] compensat[e] what the million survivors have lost?”
IV. What the ICC Could Learn from the ECCC
The publication of apologies and the inclusion of names in the final judgment did not appear to satisfy some Cambodians’ quest for justice. What then could the ICC learn from the ECCC reparations process? Although there are many lessons to be learned from the ECCC reparations process, a few will be discussed below:
1.) Importance of Managing Expectations
Managing the expectations of the victims and providing basic information regarding the reparations process is critical. Many Cambodians demand to know why individual reparations were not awarded in Case 001 even though such a form of reparation was never even contemplated before the ECCC.
To avoid a similar problem, the ICC and NGOs working in this area could incorporate reparations concepts into their community outreach. Before parties fill out an application to bring a claim before the ICC, there could be a short tutorial session explaining what type of reparations are available and the different issues that may arise regarding reparations. This does not have to be a complex lesson plan, but a basic explanation of what is at stake. This may help to reduce feelings of disappointment and betrayal by the court process.
2.) Access to Information
Given the high illiteracy rate in certain parts of Cambodia, many individuals were completely deprived of the reparations awarded in Case 001 because they could not read the printed apologies distributed throughout the country. According to a report by the International Center for Transitional Justice, the Cambodian government claims “only 36 percent of the population over fifteen years of age is functionally literate.” Although a complementary print version of the apologies was distributed throughout Cambodia, it seems unlikely that all Cambodians “received” these reparations, given that many could not read and understand the material. Furthermore, copies of the apologies were distributed on the internet, but many Cambodians do not have access to a computer.
These are important considerations for the ICC as well since internet accessibility is still an issue in many situation countries and since literacy rates in situation countries include: Côte d’Ivoire 55%; Central African Republic 55%; Democratic Republic of Congo 67%. If the ICC were to award such symbolic forms of reparations, there should be a plan in place to reach all victims involved regardless of literacy and education levels and access to internet.
3.) The Value of an Apology from the Accused?
Chum Mey stated that DUCH’s apologies were “not acceptable[, h]is apology[ies] not sincere. . . . I do not think he cried because he was really sorry for the victims. His tear is the crocodile’s tear. I cannot accept his apology, and how could I accept such book. . . .”
Victims of international crimes have suffered great harm and are then sometimes expected to relive the horror they experienced in order to provide evidence and testimony. When an apology is accompanied with the request of an acquittal from an accused, is there any real value? This apology seems hardly genuine with the high probability that a secondary motive is attached—possibly the reduction of a sentence. Similarly, what happens when the accused has previously refused to offer an apology (as in the case of Thomas Lubanga)? Will a future apology hold any value for victims? These are questions that the ICC will have to address shortly and could look to the experiences of the ECCC for some possible answers.