More to Justice than a Trial

By Laurel E. Fletcher, Megan Karsh and Mahdev Mohan, The Straits Times

This week, prosecutors made opening arguments in Phnom Penh, Cambodia, at the UN-sponsored Khmer Rouge tribunal. Former senior leaders of the brutal Khmer Rouge regime are in the dock, charged with serious crimes that claimed an estimated 2 million lives from 1975-79.

One novel feature of the Khmer Rouge tribunal is that victims can join the proceedings as ‘civil parties.’ Civil parties support the prosecution to secure convictions. If the defendants are found guilty, civil parties are entitled to seek redress for the harms caused by these former leaders.

Nearly 4,000 civil parties are participating in the trial. They look to the court for some measure of justice. But for these victims, reparation for their injuries remains as elusive as it was three decades ago.

The Court has been reluctant to exercise its powers and provide civil parties meaningful reparations. In its first case, the Court rejected the majority of requests from civil parties who suffered heinous crimes at the notorious S-21 interrogation centre where thousands were tortured and killed, citing legal barriers that other international courts and national reparations programs have easily side-stepped. In the end, these victims received little more than having their names included in the Court’s judgment.

Time is running out. This second trial is perhaps the Court’s last. Investigations against lower-level commanders have stalled and the Cambodian government is opposed to further trials. This may be the final chance victims have to claim redress against any perpetrators.

For thousands of victims, meaningful reparation awards are the touchstone of justice and accountability. While the Court cannot undo the past, it can order museums and monuments be built to commemorate the dead and honor their memories. Survivors, many of whom are reaching advanced age, are eager to have the history of their struggle preserved and accessible to successive generations through memorials and educational programs. By teaching about the past, those who lived through it hope to ensure that rice paddies will never again be turned into killing fields.

The Court can also award specific redress for elderly, vulnerable and low-income victims. It can direct that medical care be provided to survivors who suffered harm as a result of the genocide. Educational support for the children of survivors can help a generation deprived of opportunities to build productive lives and so facilitate reconciliation.

Victims deserve a pride of place in any justice process where massive human rights violations are concerned. The Court’s reparations scheme has the potential to be its most remarkable contribution – both to Cambodian victims and to the development of international law. The Court can set an example for other international courts that face similar challenges. The permanent International Criminal Court (ICC) at the Hague also allows for victims to seek reparations, but has not yet ruled on such requests.

The Court should act now to put in place a system to award victims appropriate redress. In a recent report we co-authored with the Centre for Justice & Accountability, Victims’ Right to Remedy: Awarding Meaningful Reparations at the ECCC, we recommend how reparations can be administered effectively and in a principled manner. For example, the Court should establish a working group of experts to develop a plan to create an independent body to receive and administer donor funds to implement a transparent and accountable reparations scheme, similar to the one at the ICC.

There is more to justice than convening a trial. The obligation to make reparations to victims is a critical component of the international criminal justice process. How the Court fulfills this duty will be a key yardstick by which it will be judged. 11/24/2011