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.
Since 1990, the author has been working as a criminal defence lawyer and as a legal representative for civil parties in criminal courts in Germany and elsewhere in Europe. Since February 2008, she has been working with the support of the Civil Peace Service of the German Development Organisation DED (now GIZ) in Cambodia to represent Civil Parties before the Extraordinary Chambers in the Courts of Cambodia.
This chapter is based on a speech held during the Conference on ‘Victims of International Crimes’ (6–8 October 2011) at Marburg, Germany, and reflects the author’s work as International Civil Party Lawyer before the ECCC since early 2008. This chapter was concluded in December 2011.
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Notes
- 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.
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.
ECCC Prosecutor v Kaing Guek Eav, 001/18-07-2007-ECCC/TC, 26 July 2010, Judgment.
- 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.
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.
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.
See supra note 1.
- 8.
Ibid.
- 9.
Article 12 of the Agreement and Article 33 of the ECCC Law.
- 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.
On file with author.
- 12.
The Criminal Procedure Code of the Kingdom of Cambodia can be accessed at www.oecd.org/dataoecd/15/46/46814242.pdf.
- 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.
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.
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.
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.
Internal Rule 23 (1). Emphasis added.
- 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.
Internal Rule 86.
- 20.
Internal Rule 55 (10).
- 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.
Internal Rule 80 (2) and (3).
- 23.
Internal Rule 90 (1) and 91 (2).
- 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.
Dissenting Opinion of Judge Lavergne in the Sentencing Decision, para 22.
- 26.
Article 68 (3) of the Rome Statute.
- 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.
See Articles 14, 21 and 24 CPC.
- 29.
Internal Rule 23 quinquies (2).
- 30.
Internal Rule 23 quinquies, (3) (b).
- 31.
Internal Rule 12 bis (3).
- 32.
Internal Rule 80 bis (4) and (5).
- 33.
Two Civil Parties withdrew because of their frustration.
- 34.
Internal Rule 12 ter.
- 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.
Memorandum Trial Chamber, 27 October 2011, E128/1, at www.eccc.gov.kh/sites/default/files/documents/courtdoc/E128_1_EN.pdf.
- 37.
Internal Rule 12 ter (3).
- 38.
Diamond 2010–2011, pp. 34, 43–46.
- 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.
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.
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.
953 out of 3864 Civil Parties demonstrate a link to at least one of the two forced transfers.
- 43.
Internal Rule 23 bis (1).
Reference
Diamond AF (2010–2011) Victims once again? Civil party participation before the Extraordinary Chambers in the Courts of Cambodia. Rutgers Law Rec 38:34–48
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Studzinsky, S. (2013). Participation Rights of Victims as Civil Parties and the Challenges of Their Implementation Before the Extraordinary Chambers in the Courts of Cambodia. In: Bonacker, T., Safferling, C. (eds) Victims of International Crimes: An Interdisciplinary Discourse. T.M.C. Asser Press, The Hague, The Netherlands. https://doi.org/10.1007/978-90-6704-912-2_11
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