Transitional Justice and Peacebuilding on the Ground: Victims and Ex-Combatants (Law, Conflict and International Relations) (26 page)

The use of amnesties in Cambodia has not prevented the work of the ECCC. Since the 1994 amnesty was confined to subordinates, this meant that there was no bar to the ECCC carrying out its mandate regarding prosecution of the leaders and most senior Khmer Rouge. In addition, this focus meant that important eyewitnesses were willing and able to provide evidence to the tribunal.
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During the first trial of Kaing Guek Eav, head of the S-21 prison, a number of guards testified. Ieng Sary was the focus of the 1996 amnesty, leaving other high-level officials still open to prosecution.
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Ieng Sary appealed against investigation and provisional detention based on the royal pardon and amnesty, but the Office of the Co-Investigating Judges held that these did not apply. Sary appealed against the subsequent Closing Order (indictment) issued by the Co-Investigating Judges, claiming that the pardon was valid in Cambodia and applicable to the ECCC and that the scope of amnesty protected him from prosecution.
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However, the Pre-Trial Chamber found that the pardon from the 1979 tribunal had no effect
on the possibility to institute future prosecutions “as the amnesty was not related to acts allegedly committed.” Regarding the 1994 Law, the Pre-Trial Chamber found that it did not prevent Sary’s prosecution for the crimes of genocide, crimes against humanity, grave breaches of the Geneva Conventions, and homicide, torture, and religious persecution before the ECCC, and that a blanket amnesty would be inconsistent with the international obligations of Cambodia.
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Sary’s lawyers then filed the same objections regarding the royal pardon and amnesty and an objection regarding double jeopardy with the Trial Chamber. In November 2011, the Trial Chamber found that these objections did not bar the prosecution of Sary at the ECCC and Sary’s team subsequently appealed to the Supreme Court Chamber.
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In the opening statements to his trial in June 2011, these questions of the pardon and of double jeopardy had been raised by Ieng Sary’s lawyers as forming the basis of his defense.
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This was reiterated in his statement in November 2011, in which Sary declared that, although he respected the Trial Chamber’s decision that the Royal Pardon and Amnesty did not apply in the ECCC, he was troubled by the Trial Chamber’s refusal to delay proceedings until the Supreme Court Chamber ruled on his appeal of the matter.
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There was no parallel transitional justice process to accompany the amnesties, which would have helped to ensure what Mark Freeman calls “maximum external coherence,” ensuring a balance between enhancements of perpetrators’ and victims’ rights.
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Discussions regarding the possibility of international assistance for Khmer Rouge crimes only really started from April 1997, a number of years after the first amnesty.
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During the later version of CVAP, when the negotiations of the tribunal were ongoing, there was no linkage made between DDR and accountability processes. This lack of engagement is unsurprising, when the Cambodian experience demonstrates the difficulties and challenges involved in implementing a comprehensive DDR process. There are many factors that affect whether DDR is successful, without even trying to consider its impact on transitional justice processes in a country. Therefore, consideration of the relationship between DDR and transitional justice must go beyond an assumption that activities will achieve their goals, and must engage with examples of failed processes or at least the numerous challenges to such a relationship. The political context had a significant impact, as demonstrated by the aborted attempt at CVAP in 1994/ 95 and the premature closing of the second attempt at CVAP. The World Bank had admitted that it underestimated the extent to which this politically charged atmosphere would affect the DDR program. Despite the specific procedures and guidelines of the DDR program, the World Bank found that these were not enough where “governance and rule-of-law are weak and there is seldom any follow up of problems to reduce incentives not to abuse this.”
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With such fundamental and structural problems in carrying out DDR in the country, not much thought was given to additional challenges—such as supporting or linking with transitional justice. Furthermore, the focus of the DDR programs was on demobilization as opposed to reintegration, meaning that there was less potential for a relationship between DDR and transitional justice (see Waldorf’s chapter in this
volume). In addition, as will be explored below, the tortuous negotiation process for the ECCC left no space to raise the subject of linking initiatives.

The impact on victims of the lack of coherence between DDR, amnesties, and transitional justice in Cambodia can be seen in the results of a nationwide population survey carried out in 2008 by the Human Rights Center, University of California, Berkeley.
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One-third to half of respondents claimed they were uncomfortable interacting with former members of the Khmer Rouge in various situations. For example, over 40 percent were uncomfortable living in the same community, having their children marry former Khmer Rouge members, living as a close neighbor, and working together.
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A total of 83 percent harbored feelings of animosity towards Khmer Rouge members responsible for violent acts.
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There were 90 percent who believed that it was important to hold those who were responsible to account, and 50 percent believed these should be leaders or officials, while 20 percent thought accountability was needed for the Khmer Rouge regime in general. In terms of what was understood by accountability, nearly 50 percent wanted them put on trial, while around 20 percent spoke generally of punishment. Although there is a diversity of opinion, with one-third of respondents saying they had forgiven the Khmer Rouge, this survey does demonstrate negative attitudes towards former Khmer Rouge members and the desire for justice.

Victim-Centered Justice in Cambodia

Establishment of the Extraordinary Chambers in the Courts of Cambodia

As mentioned above, apart from the show trials of Ieng Sary and Pol Pot, the question of accountability for human rights abuses during the period of Khmer Rouge rule was not a priority for the RGC. In 1997, the Cambodian co-Prime Ministers requested assistance from the UN concerning this question, and the UN appointed a Group of Experts to provide a report on the options available for bringing to justice those most responsible for the atrocities.
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Their report found that due to the problems in the Cambodian domestic judicial system, such as government interference, corruption, and lack of capacity, an international criminal tribunal would be the best option, located outside of the country.
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However, by the time the report was presented to the General Assembly in 1999 the political situation in Cambodia had changed. As explained by Thomas Hammarberg, former Special Representative of the UN Secretary-General for Human Rights in Cambodia, during this period there were important defections by key Khmer Rouge leaders, which led the RGC to respond to the report with the statement that “the trials of Khmer Rouge leaders would panic other former Khmer Rouge officers and rank and file … renewing the guerrilla war in Cambodia.”
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With the collapse of the Khmer Rouge militarily and politically, it became apparent that the tribunal had only been considered useful to defeat the Khmer Rouge and that an international tribunal was no longer considered
important by the RGC.
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The RGC was only willing to consider a national trial for Ta Mok (who unlike the other leaders had not surrendered, but was arrested) leading to an impasse between the UN and RGC. Finally, the suggestion of a hybrid model seemed to find a middle ground between the two parties. The hybrid model would have a mix of international judges and Cambodian judges, use a mixture of domestic and international law, and be located in Phnom Penh. Nonetheless, this model still caused problems in negotiations. The RGC wanted a majority of Cambodian judges and the UN wanted a majority of international judges in order to try to prevent the problems of government interference or influence. Finally, the concept of “supermajority” decision-making was introduced. Following this rule, even though Cambodian judges would be in the majority, at least one foreign judge would have to agree with the Cambodian judges. This was an attempt to circumvent the problems of the domestic system by ensuring that the Cambodian judges could not just outvote the international judges, thus supporting independent decision-making by the ECCC. The agreement between the UN and RGC was signed in June 2003 and approved by the National Assembly and Senate in October 2004.

The ECCC is mandated:

The ECCC has a Pre-Trial Chamber and Trial Chamber with five judges (three Cambodian and two international) and the Supreme Court Chamber has seven judges (four Cambodian and three international). In accordance with the super-majority rule, the Pre-Trial Chamber and Trial Chamber need four votes for a decision and the Supreme Court Chamber needs five.

The ECCC is unique compared with other hybrid tribunals and the
ad hoc
international tribunals, since it operates within a civil law system (inquisitorial) rather than common law (adversarial). There are two co-prosecutors, (one Cambodian and one international) and also two co-investigating judges (one Cambodian and one international). This model with prosecutor and investigating judges reflects the Cambodian domestic justice system. The co-prosecutors carry out a preliminary investigation and file an Introductory Submission in order for the suspect(s) to be arrested. The co-investigating judges then examine the evidence and decide whether to charge the suspect. They carry out their own investigation and decide whether to issue a Closing Order, which sends the charged person to trial. Other organs of the ECCC, the Defense Support Section (DSS), Office of Administration, and Victims Support Section also have half Cambodian and half international staff.

The ECCC began its operations in February 2006. The internal rules were finally agreed upon in 2007 and by November 2007 five suspects were arrested
and taken into custody. The trial of Kaing Guek Eav (known as Duch), the former head of the S-21 prison, began in March 2009 and the verdict was delivered on 26 July 2010. Duch was found guilty of crimes against humanity and grave breaches of the Geneva Conventions. The co-prosecutors, Duch, and civil parties appealed the Trial Chamber’s judgment and, in February 2012, the Supreme Court Chamber increased Duch’s sentence from 30 years to life imprisonment. The second trial of four Khmer Rouge leaders has recently begun: Ieng Sary, former Deputy Prime Minister and former foreign minister; his wife, Ieng Thirith; Khieu Samphan, President during the Khmer Rouge; and Nuon Chea, the second-in-command to Pol Pot. They have been charged with crimes against humanity, war crimes, and genocide. Although the Trial Chamber found Ieng Thirith unfit to stand trial and ordered her release, the co-prosecutors appealed this decision. The Supreme Court Chamber granted the appeal and she is currently detained pending further medical opinion.
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The judicial investigation of five more suspects (the names are confidential and they are known as Cases 003 and 004) is ongoing and proving highly controversial, with allegations of political interference in the work of the ECCC. Prime Minister Hun Sen and other senior members of the RGC have openly spoken out against any further prosecutions. The progress of Cases 003 and 004 has resulted in complaints against the co-investigating judges, leading to the resignation of the international co-investigating judge in October 2011, citing the attempted interference by Cambodian government officials.
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The Cambodian Supreme Council of the Magistracy did not appoint the UN choice for international co-investigating judge (the current reserve international co-investigating judge) although it was required to do so.
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Nevertheless, the reserve international judge carried out his duties until he tendered his resignation, citing obstruction by his Cambodian counterpart. This led the Secretary-General to initiate a new process for the selection of both a new international co-investigating judge and a new reserve international co-investigating judge and to state that the RGC “should afford the new international co-investigating judge every assistance and full cooperation to carry out his or her functions.”
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Participation of Victims At the Extraordinary Chambers in the Courts of Cambodia

At the ECCC, victims of crimes alleged to have been committed by the accused can act as complainants or civil parties to the trial. Victims can act as a civil party, not only in support of the prosecution, but also to seek collective and moral reparations in their own right.
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Anyone who has suffered physical, psychological, or material harm as a direct consequence of the Khmer Rouge regime can apply to become a civil party. Once admitted as a civil party, they have the same rights as every other party to the proceedings and are eligible for reparations. Although the ECCC is the first internationalized tribunal where victims can participate in this way, this aspect developed quite late. Over the past decade, there has been a growing focus on the rights of victims at international and
internationalized tribunals. Although victims could participate as witnesses at the International Criminal Tribunal for Rwanda (ICTR) and International Criminal Tribunal for the Former Yugoslavia (ICTY), their participation was restricted by the requirements of the prosecution. The
UN Basic Principles on the Rights to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law
adopted by the General Assembly in December 2005 marked an evolution in the role of victims and they can now participate in various capacities at the International Criminal Court and the Special Tribunal for Lebanon, as well as the ECCC.