ICTJ in the News

September 11, 2008

Victims in emotional, legal limbo over participation at the KR Trial

Phnom Penh Post

By Georgia Wilkins

When Rin saw the man who organised the killing of her sister calmly escorted into a Toyota Land Cruiser on national television, she wanted to club him to death the way her sister had been years before. "I respect the law ... but I can no longer hold back my anger," the 52-year-old said.

As a civil party to the trial of Tuol Sleng prison chief Kaing Guek Eav, who is also known as Duch, Rin has a healthy respect for the judicial process. But even so, "we've been waiting too long for justice", she said.

Rin is not the only person troubled by the mixed emotions of participating in the trial of the man who allegedly ordered the death of so many, and her frustration is symbolic of the ongoing antagonism between speed and scope at the UN-backed tribunal.

The tribunal's Victims Unit is now flooded with applications from people seeking legal recognition for their suffering under the 1975-79 regime - up to 1,800 victim and civil party applications have been received and are now waiting to be processed.

But ongoing delays, coupled with what critics call an erosion of the legal rights of civil parties at the pretrial stage, have many wondering whether victim participation on the scale previously planned is still a priority for the near-bankrupt court.

Untested ground

Cambodia's Extraordinary Chambers is the first hybrid tribunal in history to encourage victims like Rin to play a central role in the proceedings. For the first time ever, victims as civil parties are legal participants in the criminal proceedings. A civil party has most, if not all, of the rights as the prosecution and defense, including access to documents and the ability to produce evidence in court.

Terith Chy, head of the Victims Participation Project at the Documentation Center of Cambodia (DC-Cam), is facilitating the applications of several civil parties and says that civil parties are often uncertain of their role.

"They want to tell the court what happened, everything they saw," he said. "But they are worried about how long the process has taken and will take."

The extent to which victims will be able to participate in the trials has been a contentious issue ever since the inception of the tribunal two years ago.

Cecile Aptel, who is in charge of the International Center for Transitional Justice's Cambodia program, describes it as a case of push-and-pull for the court.

"When victims play an active role in legal proceedings, they feel directly involved in the judicial process and empowered," she said. "But this also creates a challenge for the ECCC: to ensure that a potentially large number of victims can participate effectively in the proceedings."

Despite continuing calls for more applicants, the court has, in practice, made repeated attempts to backpedal on the rights initially given to parties, some observers claim.

In July, civil party Theary Seng was denied the chance to address the court directly during Ieng Sary's appeal against his pretrial detention on the basis she had legal representation. When she then dismissed her lawyer, she was again denied the right to speak.

Written amendments were pushed through last week at the fourth plenary session of judges requiring parties to apply at least 10 days ahead of the initial hearing if they want to speak and giving the court the power to force them into groups with a single lawyer representing them.

Setting a precedent

As the tribunal is the first of its kind to offer victims the chance to participate as legally recognised parties, observers will be looking to it as a case study.

"Decisions made by the ECCC judges may have a significant impact on choices made by other mass crimes courts about whether or not victims should play an active part in proceedings and the appropriate scope of their participation," said Anne Heindel, a legal adviser to DC-Cam.

According to Aptel, the court could potentially "lead the way and create tremendously important precedents in international criminal law".

But a major flaw in the right of KR victims to participate is that currently no legal representation is provided to parties willing to seek civil party status.

"The court needs to get money for representation so their part [in the trials] will be meaningful," said DC-Cam's Terith Chy.

Court spokesperson Helen Jarvis said that the court's new budget, for which funds are now being sought, has provisions for more staff and support activities, and for "a modest level of legal assistance to support those approved to become civil parties".

But observers, who are concerned it might be another year until other defendants are even indicted, are warning that the court's legitimacy is at stake.

"Victim participation is important for the court's legitimacy because it is the best way of making a few trials of a handful of persons relevant to survivors 30 years after the fact," Heindel said. The Victims Unit declined repeated requests for comment.

"Victims in emotional, legal limbo over participation at the KR Trial" originally appeared in the Phnom Penh Post.