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Participation Rights of Victims as Civil Parties and the Challenges of Their Implementation Before the Extraordinary Chambers in the Courts of Cambodia

  • Silke Studzinsky
Chapter

Abstract

This chapter introduces the rights of Civil Parties before the ECCC which is the first Court to grant victims standing as civil parties to proceedings in mass crime trials. Since the Court began, the right of civil parties to participate in proceedings and seek reparations has undergone many changes. The rights of civil parties and their legal representatives have been increasingly limited through jurisprudence, the amendment of the Court’s Internal Rules and decisions of the Court Administration limiting resources available to the civil parties and their representatives. The author stresses that the participation of survivors as parties to criminal proceedings and the provision of appropriate remedies are of the utmost importance and can significantly contribute to the process of ascertaining the truth and achieving justice in a post-conflict situation. Importantly, the participation of civil parties and the reparation system available to them must comply with international standards and principals as well as being consistent, coherent, transparent and respectful. Last but not least, sufficient resources must be provided. The participation of survivors in criminal proceedings and access to meaningful remedies remains a huge challenge, but is feasible if those administrating, funding and supporting the proceedings are willing to ensure that these objectives are realised. Importantly, the participation of survivors in criminal proceedings and access to meaningful remedies are indispensable to ensuring that a holistic response to mass atrocities is achieved.

Keywords

Victims Civil parties Civil party lawyers Reparations Participation right Legal representation ECCC Cambodia 

11.1 Introduction

The Extraordinary Chambers in the Courts of Cambodia (otherwise known as the ECCC or the Khmer Rouge Tribunal) was established pursuant to the Agreement1 between the United Nations and the Royal Government of Cambodia. The ECCC started in 2006 with the first preliminary investigations by the Co-Prosecutors. The mission of the tribunal is to prosecute crimes committed during the period of Democratic Kampuchea between 17 April 1975 and 6 January 1979. The ECCC has jurisdiction over senior leaders and those most responsible for serious violations of the Cambodian Penal Code, and the international crimes of genocide, war crimes and crimes against humanity. It is a hybrid court composed of national and international judges and staffing, and is based largely on civil law procedure. The Khmer Rouge Tribunal is the first internationalised court dealing with mass crimes, which allows victims to apply as civil parties and to become party to the proceedings alongside the prosecution and the defence.2 In Case 001, against Kaing Guek Eav (alias Duch), the former director of the security center, S-21, the Trial Chamber announced its judgment in July 2010.3 This judgment is currently under appeal by all Parties. The Supreme Court Chamber held the Appeal hearings at the end of March 2011. The Appeal decision is expected to be handed down on 3 February 2012.

In Case 002, against four senior leaders of the Khmer Rouge regime, indictments were finalised in January 2011.4 The substantive hearing started in November 2011. The case against Ieng Thirith has been severed because she is held unfit to stand trial and the Trial Chamber ordered her unconditional release.5 On the prosecution’s appeal against the unconditional release, the Supreme Court Chamber directed the Trial Chamber to order the Accused’s medical treatment in an appropriate facility to improve her fitness to stand trial.6

In this chapter, I will give (i) an overview on the participation rights of civil parties as parties to the proceedings and their right to request reparations, (ii) an outline of the current practical situation at the ECCC with regard to the development of civil parties’ rights and the challenges arising in the implementation of reparations and (iii) lessons learnt thus far.

11.2 Overview of the Participation Rights and Right to Seek Reparation for Victims as Civil Parties Before the ECCC

11.2.1 The Legal Basis

After nearly 10 years of negotiation, the United Nations and the Royal Government of Cambodia reached an Agreement adopted by the Cambodian National Assembly.7 It was implemented through the ECCC Law8 and forms the Statute of the Court. According to the ECCC Law, Cambodian procedural law applies. It stipulates—like the Agreement—that “if Cambodian procedural rules do not deal with a particular matter, or if there is uncertainty regarding their interpretation or application, or a question regarding their consistency with international standards, guidance may be sought in procedural rules established at the international level.”9

Despite the fact that neither documents grant judges the power to adopt their own procedural rules, as is the case in other international(ised) Courts,10 and the Cambodian National Assembly discussed and rejected granting such power during parliamentary debates,11 in June 2007, the plenary of the Judges adopted the first Internal Rules. The Internal Rules were orientated along the Draft of the Cambodian Criminal Procedure Code which was adopted during the Judges’ plenary in June 2007 and set out some weeks later. According to its Preamble, the purpose—and limits—of the Internal Rules are to consolidate the Cambodian Criminal Procedure Code12 (hereinafter: CPC).

The Cambodian criminal proceedings are similar to French proceeding and thus reflect a civil law jurisdiction which is customised in having victims as a third party in criminal proceedings unlike in common law countries where victims mainly play a role as witnesses without any rights to intervene.

This is the reason that victims were included as a third party, equal to other parties, in proceedings before the ECCC.

Departing from the Agreement and the ECCC Law, the Pre-Trial Chamber ruled that the Internal Rules are a “self-contained system of procedural law”. The Pre-Trial Chamber continued that “[t]herefore, the Internal Rules constitute the primary instrument to which reference should be made in determining procedures before the ECCC where there is a difference between the procedures in the Internal Rules. Provisions of the CPC should only apply where a question arises which is not addressed by the Internal Rules.”13

By this ruling the Pre-Trial Chamber shifted the Internal Rules to have the rank of law. In addition, they significantly changed the ranking of the procedural legal basis of the Court, deviating from the Agreement and the ECCC Law, and determined that the Internal Rules are the first and predominant procedural foundations of the Court.

This allowed the Judges of the ECCC to adopt and to amend—with seven amendments to date—the Internal Rules, in closed plenary sessions without any outside scrutiny or control. Civil Party Lawyers are excluded from submitting proposals for amendments to the Internal Rules.14

Attempts by Civil Party Lawyers to challenge the legality of the Internal Rules15 were dismissed16 early on.

Consequently, since 2007, the ECCC Judges significantly restricted and curtailed basic rights of Civil Parties and their lawyers through amendments of the Internal Rules by plenary decisions, being in the position to create and adopt procedurally binding law for the proceedings at the ECCC which do not undergo any scrutiny in relation to being consistent with international standards or/and Cambodian law.

11.2.2 Participation Rights

Victims who apply to become a civil party and, therefore, a party to the proceedings of the ECCC, have equal rights to the prosecution and the defence, at least to a large extent and when appropriate. The Internal Rules determine the purpose of Civil Party participation as, “a) to participate in criminal proceedings against those responsible for crimes within the jurisdiction of the ECCC by supporting the prosecution; and b) seek collective and moral reparations.”17

Participating in this context means that Civil Parties exercise a wide range of procedural rights, as a party to the proceedings.

Civil Parties have a right to legal representation, which has been made mandatory in the trial phase.18 They have full access to the case files, including confidential parts,19 and may respond to all applications submitted by the other parties as well as raise any legal or factual matters proprio motu. Until now, Civil Parties have not been required to give reasons as to the extent of personal interest in the respective matter, unlike victims participating at the International Criminal Court (ICC). In addition, they can be interviewed during the investigative phase by the Co-Investigating Judges. Most importantly in this context is the right during the investigation phase to submit investigative requests20 to the Co-Investigating Judges. The submissions of civil parties during the investigation phase with regard to sexual violence were one prominent and successful example of the performance of participation rights. At the beginning, cases of sexual violence were not part of the prosecutorial strategy and were therefore omitted from the Prosecution’s preliminary investigations. Only through the efforts of Civil Party Lawyers were these crimes addressed and investigated at the ECCC. Civil Party Lawyers exercised the right to submit investigative requests, and submitted the first applications of victims of sexual violence, in particular of forced marriages, which were subsequently investigated and eventually became a new count in the indictment.21

During the trial phase, Civil Party Lawyers are able to submit their own witness/civil party/expert lists to the Trial Chamber through the new established Lead Co-Lawyers in order to ensure the Civil Parties are personally heard22 and evidence is strengthened and supplemented. Given the high number of Civil Parties, there will only be a limited number of Civil Parties who are able to give a statement in Court on the facts of the indictment and/or their sufferings.

The most important right of civil parties during trial is the questioning of the Accused, witnesses, other civil parties and experts through their lawyers.23 Questioning does not need to be linked to a specific personal interest.

Nevertheless, this unlimited right—unlimited in its application under both the applicable Cambodian Procedure Code and the Internal Rules—was restricted by the Trial Chamber in Case 001. The Trial Chamber ruled that Civil Parties were not allowed to question either witnesses who testify on the character of the Accused or experts who examined the mental health of the Accused and his culpability. The Trial Chamber determined the role of Civil Parties to primarily seek reparations and, as a result, limited their participation rights to addressing only the guilt of the Accused but not on matters related to sentencing.24 The Trial Chamber also limited the role of Civil Parties to making submissions only on matters related to proof the guilt of the Accused for the crimes which caused their harm and thus, are related to the issue of reparations.25

This ruling can be seen as a first step towards the “personal-interest-approach” as it applies at the International Criminal Court (ICC) where Victims are limited in their interventions only to matters which affect their ‘personal interests’.26

Although this limitation has no legal basis in the Internal Rules or the Cambodian Criminal Procedure Code27 and affects the participation rights of Civil Parties, the possibility for civil parties to intervene is still broad.

11.2.3 Reparation Scheme in Case 002

The common understanding of compensation in the domestic Cambodian system is that victims can join criminal proceedings as civil parties and submit their civil claims for financial compensation to the criminal court.28

Since the beginning of the ECCC, the domestic Cambodian system has been amended qua Internal Rules: Reparations are limited to collective and moral reparation only.

In Case 002, the reparation scheme was again amended. The Internal Rule 23 quinquies describes collective and moral reparations as measures that (i) acknowledge the harm suffered by Civil Parties as a result of the commission of the crimes from which an Accused is convicted and (ii) provide benefits to the Civil Parties which address this harm. Any monetary payments to Civil Parties are explicitly excluded.

Despite the amendments of the Internal Rules, a clear definition of collective and moral reparations is still lacking.

The Internal Rules further require (i) the description of the award sought, (ii) reasoned argument as to how they address the harm and to specify, where applicable, the specific Civil Party group and (iii) the specification of the mode of implementation.29

The cost of reparations can also be borne by external funds. The Internal Rules stipulate that the Trial Chamber then ‘recognises that a specific project gives effect to the award sought and may be implemented’.30 The Victims Support Section is required to secure sufficient external funding, for any possibility of implementing reparations measures. In light of the limited human resources within the Victims Support Section, and due to the absence of an established funding source, the outcome in Case 002 might be even more limited because only awards for which sufficient funding is guaranteed, can be ‘recognised’ by the Trial Chamber. In other words, the enforceability of the order becomes a pre-condition, and an integral part of any reparation order. This seems to be quite questionable as the matter of enforceability has never been an issue of relevance for the decision of a Trial Chamber on reparations.

Likewise, it is doubtful what ‘recognition’ by the Trial Chamber can contribute, and even why it is needed if all the work including the financing is already implemented by the Victims Support Section and necessary assistance provided by Civil Party Lawyers or even the Civil Parties themselves.

The amended Internal Rules broaden the mandate of the Victims Support Section, which can implement so called ‘non-judicial measures for victims’. The Internal Rules stipulate that the Victims Support Section ‘shall be entrusted with the development and implementation of non-judicial programs and measures addressing the broader interests of victims. Such programs may be developed and implemented in collaboration with governmental and non-governmental organizations external to the ECCC’.31

This, of course, sounds rather promising at first glance, since two new avenues have been added which broaden the possibility for civil parties and victims to receive reparation.

In Case 002, the final reparation request has to be filed as directed by the Trial Chamber at a later stage of the hearing32—approximately in 2013.

Meanwhile, the Victims Support Section could, within its new mandate, establish reparation in the form of the non-judicial measure readily available.

However, the Victims Support Section struggles with limited resources after nearly 2 years of being seized with this mandate. Additionally, the new VSS mandate can only be performed by making use of strong management and organisational skills. It is quite possible that the mandate of the Victims Support Section to design and implement reparations for both the reparation awarded by the Trial Chamber and the non-judicial measures, which necessarily includes full fundraising for reparation, is too ambitious. It may well prove to be more of a window-dressing exercise rather than effective reparation.

11.2.4 The Performance of Civil Party Rights in Practice

11.2.4.1 Resources

After having discussed shiny academic theory, I will now shed light on practical reality and elaborate on some major obstacles in the performance of civil party rights.

Upon my arrival in early 2008, I was keen to contribute to achieving justice for victims by representing them as full-rights civil parties in a Criminal Court dealing with mass crimes for the first time in the history of International(ised) Courts. I was hoping that the inclusion of victims as full parties into the judicial criminal process would help them shift their role from being objects to become subjects of the proceedings. I was also hoping that civil parties would achieve effective remedies such as access to truth and information through performing their participation rights; and that they would receive reparation that may effectively contribute to healing the harm that they have suffered. Last but not least, I was hoping that the process of justice and reconciliation—huge and heavy terms that are easily used in the discussion of mechanisms in transitional justice settings—could be made tangible and concrete.

I also believed that the ECCC would become a model Court for the participation of many victims as parties to the proceedings in mass crimes and hoped to increase the benefits for the victims of the Khmer Rouge Regime as well as the Cambodian society today.

I soon learned that Civil Party Lawyers and thus Civil Parties were not that welcomed at the ECCC, at least not as an active part and party to the proceedings. The Court used and still uses all means—amendments of the Internal Rules, Court decisions and decisions by the Administration—to silence civil parties and to progressively reduce their participation from the agenda of the Court. It seems to be sufficient for the so-to-speak “family album” to have some civil parties sitting and listening attentively to the proceedings in the court room, regardless of whether they understand what is going on.

In Case 002, 3,864 civil parties were admitted.33 Their legal representation by Civil Party Lawyers is mandatory, by virtue of the latest issuance of the indictment. The role of Civil Party Lawyers during the trial stage and beyond is to substantively support the Lead Co-Lawyers in the representation of the “consolidated group of civil parties”.

In order to make participation possible and meaningful, Civil Parties must be sufficiently and continually informed about the proceedings before becoming involved and able to properly perform their procedural rights. Consequently, enough resources need to be invested to regularly inform civil parties on the court proceedings for them to be able to make informed decision on how to contribute to the proceedings and on the views that they may wish to submit. Also, consideration must be given to those victims who have never been in contact with a court before and live in remote areas of Cambodia or abroad. The way that the information is provided should also correspond to the language and educational level of the victims—bearing in mind that the low level of education generally in Cambodia can be attributed to the structural destruction of the society carried out by the Khmer Rouge Regime.

Further, Civil Party Lawyers have to work full time on the case, and must have permanent access to all software and facilities that other parties have. They must be enabled and supported to draft legal submissions to a high standard and have to be trained on international criminal law, the specificities of the ECCC and the factual historical background.

Although it was clear from the beginning that civil parties will be present during the proceedings and are an important feature in this particular Court, legal representation of civil parties was not included into the court’s budget. Although funds from third party resources raised in 2008 by a concerted initiative of the former Victims Unit and civil society actors improved the under-resourced legal representation slightly; Civil Party Lawyers today work on a pro-bono basis and/or with minimal funds that they are required to seek for themselves. Almost all International and national Civil Party Lawyers are dedicated to their work, but they need to spend most of their time and energy following up other sources of income in order to earn their living, given that the majority of victims are not in a position to pay for their legal representation.

In late 2009, two Cambodian lawyers were paid by the Court, which received earmarked funds by the German Ministry of Foreign Affairs. International posts for legal representation were advertised but never filled, although legal representation was the centerpiece of the funding coming from the German Government. Today we have a total of three Cambodian lawyers paid by the Court. This is by far not sufficient to represent nearly 4,000 civil parties who wish to participate in the proceedings. Upon my arrival, Civil Party Lawyers were provided with two small offices and after a while with access to office supplies similarly to other parties working at the court. Subsequently new offices were built and provided with computers and other facilities so that at the beginning of 2010, working conditions further improved. In addition, we had access, at least by the end of 2008, to interpretation from the Interpretation and Translation Unit (ITU) for meetings between national and international lawyers and lawyers and clients. Meetings with clients were and are financed only by NGOs and third party funding. Since 1 July 2010, the situation deteriorated. The new Chief of the Office of the Victims Support Section moved the Civil Party Lawyers from the Court to the Information Center of the Court in Phnom Penh, and later, ordered to leave this office as political tensions grew. This resulted in Civil Party Lawyers having no permanent professional domicile, and no access to relevant software required for the daily work. Further, access to Court interpretation is no longer provided, and we are only permitted to work on a Court computer—giving us access to the court’s electronic networks and legal tools three days per week. Such usage requires an advanced reservation request. Neither the Prosecution nor the Defence is treated this way, who are both provided with permanent offices and appropriate resources at the Court’s premises. Civil Party Lawyers on the other hand are no longer provided with a permanent working space (except the Court funded team), even though they are the legitimate holders of powers of attorney.

11.2.4.2 Lead Co-Lawyers and the Courts Approach to Civil Parties

The new legal representation scheme,34 which now stipulates that one national and one international Lead Co-Lawyer employed with the Court represent the ‘consolidated’ group of all Civil Parties, may reduce, if not hinder—the proper representation of Civil Parties through their lawyers. Because of the intermediary ‘Lead Co-Lawyers’, deadlines for Civil Party Lawyers are in fact shortened because of the requirement to get the approval of the Lead Co-Lawyers. Further, where the Lead Co-Lawyers do not react in a timely manner on Civil Party Lawyers’ draft submissions or refuse to sign them has led to a silencing of Civil Parties.

The Trial Chamber and all Court sections now liaise only with the Lead Co-Lawyers, resulting in limited information to Civil Party lawyers, in part due to the Lead Co-Lawyers failing to transfer all relevant information in their knowledge to the Civil Party Lawyers. Furthermore, the Trial Chamber excluded Civil Party Lawyers from accessing relevant documents such as medical certificates about the accused persons, while the fitness to stand trial was discussed.35 These reports were only accessible to the Lead Co-Lawyers. This has resulted in a different treatment of Civil Party Lawyers by the Chambers from other party representatives. Thus, it is impossible for ‘ordinary’ Civil Party Lawyers to perform their work when they are excluded from access to basic documents.

Moreover, the names of Civil Party Lawyers are now not mentioned in any Court document and other public information regarding representatives of Civil Parties,36 as though Civil Party Lawyers no longer exist, even though the vast majority of submissions are drafted by Civil Party Lawyers. The practice has so far demonstrated that the Lead Co-Lawyers comply with their duty to ‘consult with civil party lawyers and endeavor to seek consensus’37 and therefore to discuss with Civil Party Lawyers. Nevertheless, the Lead Co-Lawyers make the ultimate decisions, sometimes without giving proper reasons to Civil Party Lawyers. It is important to note that no remedy is available to Civil Party Lawyers against any unreasonable or unwarranted decisions in written or oral submissions.

The selection of the Lead Co-lawyers as coordinators instead of un-mandated representatives of Civil Parties should have been based on merit—in other words—a standard of being experienced lawyers in international criminal law and their qualifications and experience in victims’ representation in mass crime trials. This was not the case. Important to note is the fact that the Lead Co-Lawyers have no powers of attorney from the civil parties and have no direct knowledge of those they purport to represent qua Internal Rules. They are therefore not in a proper position to express their views.

The establishment of the Lead Co-Lawyer Section, without a proper mandate, serves more to silence civil parties than to uphold their right to be heard. Thus, the civil party rights have been stunted. Civil Parties can no longer play their role as a full right pledged party to the proceedings.38

As a result, Civil Party Lawyers spend a huge amount of their time struggling for resources and for the recognition of civil parties as a full-right party to the proceedings—instead of using the full time representing them as such.

The latest developments at the ECCC are less promising:

In Cases 003 and 004, cases which are highly disputed and objected by the Cambodian Prime Minister,39 applicants are rejected for outrageous reasons, without any legal basis. Some examples include: they are only indirect victims, have already enjoyed participation rights in the other cases and that their suffering is not credible.40

Moreover, the Trial Chamber decided to sever Case 002 to deal only with the first two forced transfers in the ‘first’ trial.41 Given the old age of the accused persons, it can be argued that the separation order would allow the opportunity for the Court to reach at least to one final judgment. However, the decision came far too late from the perspective of the Civil Parties. These victims have undertaken the process of applying as a civil party, appealing rejections and submitting witness and civil party lists with regard to all crimes and crime sites and believing for years that they would benefit from the trial, but the severance means that only approximately 30 % of Civil Parties is connected with the upcoming trial.42

Consequently, most of the Civil Parties, who are admitted with regard to other crimes/crime sites than the first two transfers, will not play any role in this first—and probably last trial.

However, the Trial Chamber explicitly retained—against the clear admissibility requirements in the Internal Rules43—the entire consolidated group in the Severance Order although the split of the group would have been the correct response. It is because in this first case only those Civil Parties can be admitted who can demonstrate a link to the charges. In fact, the Trial Chamber postponed the rejection of more than 2/3 of them until the judgment when the trial Chamber will reject all those who cannot demonstrate a link to the two forced transfers with regard to reparations. This is another non-transparent treatment of Civil Parties that makes them believe to participate although they are not eligible for the first trial. This will cause again more harm to them.

11.2.5 Lessons Learned

  • Victims’ representation and participation in criminal trials dealing with mass crimes costs money. To enable victims to meaningful participation in court proceedings, support staff and qualified lawyers need to be paid and provided with adequate infrastructure and logistics to carry out their work.

  • Each legal representative can meaningfully represent only a limited number of clients. Otherwise basic professional duties cannot be fulfilled. Therefore, a sufficient number of lawyers according to the number of victims must be paid.

  • Victims and their representatives must be treated with dignity and genuine respect for their rights. Their party status must be fully recognised and result in a common practice by all bodies of the ECCC.

  • The court must be transparent and accountable to victims, and demonstrate a common and clear policy and approach with regard to victim/civil party participation. These must be predictable from the outset.

  • Any reparation scheme should be in accordance with the UN Basic Principles and be a visible and effective remedy that covers the needs of victims. The UN Basic Principles do not foresee that civil society and, ultimately, the victims and their lawyers have to seek funding for the financing of any reparations. The establishment of an independent trust fund is an indispensable means to enforce any reparation order.

11.3 Conclusion

The ECCC is the first internationalised court dealing with mass crimes, which grants victims the role of third parties to the proceedings. This would have been a unique chance for the ECCC to have victims actively involved and to become a model for any future international or internationalised court.

More recently, amendments to the Internal Rules, Court rulings and directions by the Office of Administration have effectively reduced the actual possibilities of Civil Parties to participate, or rendered ‘participation’ meaningless, due to the watered-down rights now afforded to civil parties. Effective victim participation is no longer guaranteed due to the imposition of a Lead Co-lawyer section, responsible for representing the ‘consolidated group’, and effectively limiting Civil Parties’ rights without legal basis and denying Civil Parties’ representatives the necessary access to Court facilities.

The role of Civil Parties, to obtain some remnant of justice through actively participating in this process, remains a continuing challenge and one that must be balanced against secondary harm caused to civil parties by the gaps, inadequacies and denial of rights that have resulted so far in all before the ECCC.

There is much to learn from the experience of victim participation at the ECCC—particularly what not to do, if civil party participation is to carry any meaning for the victims it purports to serve.

Footnotes

  1. 1.

    Agreement between the United Nations and the Royal Government of Cambodia Concerning the Prosecution under Cambodian Law of Crimes Committed During the Period of Democratic Kampuchea, 6 June 2003, (hereinafter: Agreement), at www.eccc.gov.kh/sites/default/files/legal-documents/Agreement_between_UN_and_RGC.pdf. The Agreement was implemented by the Law on the Establishment of the Extraordinary Chambers, with inclusion of amendments as promulgated on 27 October 2004 (NS/RKM/1004/006), (hereinafter: ECCC Law), at www.eccc.gov.kh/sites/default/files/legal-documents/KR_Law_as_amended_27_Oct_2004_Eng.pdf.

  2. 2.

    See the Internal Rules (Revision 8), as revised on 12 August 2011, in particular Rule 23 and 23 bis - 23 quinquies at www.eccc.gov.kh/sites/default/files/legal-documents/ECCC%20Internal%20Rules%20%28Rev.8%29%20English.pdf. The Internal Rules reflect the Cambodian Criminal Procedure Code.

  3. 3.

    ECCC Prosecutor v Kaing Guek Eav, 001/18-07-2007-ECCC/TC, 26 July 2010, Judgment.

  4. 4.

    ECCC Prosecutor v Nuon Chea et al., 002/19-09-2007-ECCC/OCIJ, 15 September 2010, Closing Order. The Closing Order was appealed by the Accused and became final with two amendments. See at www.eccc.gov.kh/en/document/court/decision-ieng-thirith-and-nuon-chea39s-appeal-against-closing-order and www.eccc.gov.kh/sites/default/files/documents/courtdoc/D427_1_26_EN.PDF. The reasoning of the Pre-Trial Chamber Decisions on IENG Thirith and NUON Chea can be found at www.eccc.gov.kh/sites/default/files/documents/courtdoc/D427_2_12_EN.PDF. See the Decision on IENG Sary at www.eccc.gov.kh/sites/default/files/documents/courtdoc/D427_1_30_EN.PDF.

  5. 5.

    ECCC Prosecutor v Nuon Chea et al., Case no. 002/19-09-2007-ECCC/TC, 17 November 2011, Decision on Ieng Thirith’s Fitness to Stand Trial.

  6. 6.

    ECCC Prosecutor v Nuon Chea et al., Case no. 002/19-09-2007-ECCC/TC/SC/(09), 13 December 2011, [Corrected2] Decision on Immediate Appeal against the Trial Chamber’s Order to Release the Accused IENG Thirith.

  7. 7.

    See supra note 1.

  8. 8.

    Ibid.

  9. 9.

    Article 12 of the Agreement and Article 33 of the ECCC Law.

  10. 10.

    See Article 15 of the Statute of the International Criminal Tribunal for the Former Yugoslavia; Article 14 of the International Criminal Tribunal for Rwanda; Article 14 of the Statute of the Special Court for Sierra Leone.

  11. 11.

    On file with author.

  12. 12.

    The Criminal Procedure Code of the Kingdom of Cambodia can be accessed at www.oecd.org/dataoecd/15/46/46814242.pdf.

  13. 13.

    ECCC Prosecutor v Nuon Chea et al., 002/19-09-2007-ECCC/OCIJ, 26 August 2008, Decision on Nuon Chea’s Appeal against Order Refusing Request for Annulment, paras 14, 15.

  14. 14.

    Internal Rule 18 (1) lists those who are allowed to make proposals to the plenary. The Victims Support Section has no mandate to represent Civil Party Lawyers. Nevertheless, Civil Party Lawyers submitted proposals for amendments through the Victims Support Section (former Victims Unit) but which were regrettably completely ignored.

  15. 15.

    ECCC Prosecutor v Nuon Chea et al., 002/19-09-2007-ECCC/OCIJ, 13 October 2008, Civil Party Co-Layers’ Joint Request for Reconsideration of the Pre-Trial Chamber’s Assessment of the legal Status of the Internal Rules in the Decision on Nuon Chea’s Appeal Against Order Refusing Request for Annulment.

  16. 16.

    ECCC Prosecutor v Nuon Chea et al., 002/19-09-2007-ECCC/OCIJ(PTC06), 25 February 2009, Decision on Civil Party Co-Lawyers’ Joint Request for Reconsideration.

  17. 17.

    Internal Rule 23 (1). Emphasis added.

  18. 18.

    Internal Rule 23 ter (1). Internal Rule 23 ter (2) stipulates that their rights are exercised by lawyers, except when a civil party is interviewed, either by the Co-Investigating Judges during the Investigations or before the Trial Chamber. When they testify as Civil Parties they do not take an oath (like the Accused) because they are parties to the proceedings.

  19. 19.

    Internal Rule 86.

  20. 20.

    Internal Rule 55 (10).

  21. 21.

    During the investigations Co-Lawyers for Civil Parties submitted various investigative requests to interview or re-interview witnesses and civil parties on forced marriages and sexual violence outside of the context of forced marriages, for example ‘[Redacted] Civil Parties’ Co-Lawyers Second Request For Investigative Actions Concerning Forced Marriages and Forced Sexual Relationship’, 15 July 2009, D188, at www.eccc.gov.kh/sites/default/files/documents/courtdoc/D188_Redacted_EN.pdf and ‘[Redacted] Co-Lawyers For the Civil Parties’ Fourth Investigative Request Concerning Forced Marriages and Sexually Related Crimes’, 4 December 2009, D268, at www.eccc.gov.kh/sites/default/files/documents/courtdoc/D268_Redacted_EN.pdf. A request for expert opinion was filed with regard to sexual violence and in particular forced marriages under the Khmer Rouges. Additional documents and witness statements were submitted. Most documents are classified as confidential. The Co-Investigating Judges agreed to receive Amici Curiae on this issue but it was impossible to submit them within the deadline from 22 December 2009 until 31 December 2009, see ‘Order on Request for Investigative Actions Concerning Forced Marriages and Sexually Related Crimes’, 18 December 2009, D268/2, para 14, www.eccc.gov.kh/sites/default/files/documents/courtdoc/D268_2_EN.pdf.

  22. 22.

    Internal Rule 80 (2) and (3).

  23. 23.

    Internal Rule 90 (1) and 91 (2).

  24. 24.

    ECCC Prosecutor v Kaing Guek Eav, 001/18-07-2007-ECCC/TC, 9 October 2009, Decision on Civil Party Co-Lawyers’ Joint Request for a Ruling on the Standing of Civil Party Lawyers to Make Submissions on Sentencing and Directions Concerning the Questioning of the Accused, Experts and Witnesses Testifying on Character [Sentencing Decision]. Judge Lavergne dissented in parts and stressed that Civil Parties have the same rights like other parties if not explicitly limited, para 16.

  25. 25.

    Dissenting Opinion of Judge Lavergne in the Sentencing Decision, para 22.

  26. 26.

    Article 68 (3) of the Rome Statute.

  27. 27.

    Judge Lavergne stated that “the decision taken by Trial Chamber tilts towards a view that is far removed both from Cambodian law and the Internal Rules of the ECCC”, para 32, Dissenting Opinion of the Sentencing Decision.

  28. 28.

    See Articles 14, 21 and 24 CPC.

  29. 29.

    Internal Rule 23 quinquies (2).

  30. 30.

    Internal Rule 23 quinquies, (3) (b).

  31. 31.

    Internal Rule 12 bis (3).

  32. 32.

    Internal Rule 80 bis (4) and (5).

  33. 33.

    Two Civil Parties withdrew because of their frustration.

  34. 34.

    Internal Rule 12 ter.

  35. 35.

    Civil Party Lead Co-lawyers request to the Trial Chamber to reclassify the documents put before the Chamber during the initial hearing on fitness to stand trial from strictly confidential to confidential and notify them to all Civil Party lawyers, 12 September 2011, E117, at www.eccc.gov.kh/sites/default/files/documents/courtdoc/E117_EN-1.PDF.

  36. 36.

    Memorandum Trial Chamber, 27 October 2011, E128/1, at www.eccc.gov.kh/sites/default/files/documents/courtdoc/E128_1_EN.pdf.

  37. 37.

    Internal Rule 12 ter (3).

  38. 38.

    Diamond 2010–2011, pp. 34, 43–46.

  39. 39.

    Reporting on the events around cases 003 and 004 see also Open Society Justice Initiative (2011) Recent developments in the Extraordinary Chambers in the Courts of Cambodia (June 2011 and November 2011).

  40. 40.

    The rejection orders are classified confidential but the reasons are quoted in the appeal of the rejected Civil Party applicant, see 003/07-09-2009-ECCC/OCIJ, 15 August 2011, [Redacted] Order on the Admissibility of Civil Party Applicant, paras 27, 28, 36 and 55.

  41. 41.

    ECCC Prosecutor v Nuon Chea et al., 002/17-09-2007-ECCC/TC, 22 September 2011, Severance Order Pursuant to Internal Rule 89 ter.

  42. 42.

    953 out of 3864 Civil Parties demonstrate a link to at least one of the two forced transfers.

  43. 43.

    Internal Rule 23 bis (1).

Reference

  1. Diamond AF (2010–2011) Victims once again? Civil party participation before the Extraordinary Chambers in the Courts of Cambodia. Rutgers Law Rec 38:34–48Google Scholar

Copyright information

© T.M.C. ASSER PRESS, The Hague, The Netherlands, and the authors 2013

Authors and Affiliations

  1. 1.BerlinGermany

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