17 November 2006
ICTJ Comments on Draft Internal Rules for the Extraordinary
Chambers in the Courts of
Introduction
The
The
ECCC has an important role to play in setting a positive example of a criminal
justice process for past human rights crimes that both protect the fundamental
rights of suspects and accused persons, while balancing this with the interests
of victims. ICTJ notes the extent to
which the Rules Committee has succeeded in combining Cambodian criminal
procedure with elements drawn from the experiences of national, international
and mixed national-international criminal jurisdictions such as the Special
Court for Sierra Leone. ICTJ believes that the current draft contains some
important features that will make a major contribution to the work of the ECCC
and its longer-term legacy within
There
are other aspects of the draft Internal Rules that are also worthy of comment
but because of the short time frame available ICTJ is not able to include these
at this time, and reserves the right to make such comments in the future.
1.
Trials in
absentia – draft Rule 79(1)
Draft Rule 79(1) proposes to prohibit trials in absentia and should be adopted. While
international human rights law protects the right of an accused to be present
at his/her trial, ICTJ accepts that this right is not absolute.[1][1] In
many national jurisdictions, particularly jurisdictions that follow an
inquisitorial system, such trials are allowed. Nevertheless, it should be noted
that even in such jurisdictions, trials in
absentia are usually only allowed in restrictive circumstances and often
not allowed for cases involving the most serious crimes.[2][2]
Furthermore, international human rights jurisprudence confirms that such
trials must be subject to strict safeguards to protect the rights of the
accused to be present at trial: ensuring that the accused has been notified,
has unequivocally waived his or her right to be present, that the interests of
an accused are protected by legal counsel, that there is an ongoing right to
appear, and most fundamentally, that in the event the accused submits himself
or herself to the jurisdiction, that a retrial would be available as of right.
The current draft Rule 79(1) does attempt to reflect at
least some of these safeguards. However, international human rights bodies have
commented that even where these safeguards are respected, proceeding in the
absence of the accused makes it more difficult to observe to the same extent
the various other rights accorded to the accused under international human
rights instruments.[3][3]
Nevertheless, there are other legal and policy factors to
consider. First and foremost, Article 35(2)(d) of the Law on the Establishment
of the Extraordinary Chambers (as amended) enshrines the right of an accused
“to be tried in their own presence”. To
allow for complete in absentia trials
would on the face of it be contrary to the Law. However, a distinction may be
drawn between entire trials in absentia
leading to a “default judgment”, and those in which an accused has made an
initial appearance before the ECCC (either the Co-Investigating Judges or the
Trial Chamber) and subsequently refuses to attend. The second instance would be
consistent with recent international practice, while the first may not be.[4][4]
Furthermore, there are several policy questions that should
be taken into account in determining whether trials in absentia will best serve the aims of the ECCC. First, would
trials in absentia positively or
negatively affect the legitimacy of the ECCC’s proceedings? On the one hand,
where there is a serious risk that an accused cannot be brought within the
jurisdiction of the ECCC, the failure to be able to proceed with such
long-awaited trials may be widely rejected by Cambodians. It is important that
the ECCC satisfy public demands for justice, yet this also involves the rights
of victims to confront accused persons. However, even in jurisdictions where
the majority of indicted persons were outside the jurisdiction and the court
had no enforcement power to compel their attendance (such as was the case in
Timor-Leste) this did not affect the prohibition of in absentia trials. On the
other hand, to proceed with trials in
absentia may significantly detract from the legitimacy of the ECCC. One of the primary criticisms that the International
Military Tribunal in
Second, will trials in
absentia contribute to or detract from the efficient progress of its work
at a practical level? One of the primary
arguments in favor of permitting in
absentia trials in a court with a limited lifespan, such as the ECCC, is to
ensure that accused persons cannot frustrate the work of the court by simply
avoiding arrest until the ECCC has ended. However, although the essential
safeguard of allowing a retrial mitigates against this, the limited budget and
time estimates for the life of the ECCC would be completely unfeasible if a
retrial or trial de novo was required
where an accused is arrested towards the end of the ECCC’s work. A retrial may
involve recalling witnesses, which may raise a potential risk of
retraumatization of victims. For all of these reasons, allowing trials in absentia on grounds of ensuring the
ECCC’s efficacy may be counterproductive.
Therefore, even after balancing the competing policy factors, such
trials should not be permitted.
2.
Protection and support of victims and
witnesses (Rules 13, 26, 27, 28, 29, 30, 33 and 34)
As a whole, the draft Internal Rules demonstrate a
commitment to protecting the rights and interests of victims of the crimes
within the ECCC jurisdiction through allowing for their participation in the
process and right to seek reparation, subject to balancing these with the
fundamental rights of accused persons.
ICTJ commends the inclusion of references to the rights and interests of
both accused persons and victims in the statement of fundamental principles in
draft Rule 26. Rule 26(1)(c) should, however, clarify that the obligation to
keep victims informed relates both to their rights as well as to the progress of
cases.
The participation of victims in the ECCC proceedings is
also set out extensively in the draft, and ICTJ does not offer substantive
comment at this stage on the provisions of Rule 27 other than to note that the
IRs should confirm that the statute of limitations for civil claims will be the
same as that for the criminal offences within the ECCC jurisdiction. Of greater
concern, however, is the adequacy of the provisions relating to both protection
and support of both victims and witnesses. Article 33(5) of the amended ECCC
Law provides that “[t]he Court shall
provide for the protection of victims and witnesses. Such protection measures
shall include, but not be limited to, the conduct of in camera proceedings and
the protection of the victim’s identity.” Article 23 of the Agreement
between the United Nations and the Royal Government of Cambodia reiterates
this.
Based upon the present draft, the various rules dealing
with victims and witnesses are not sufficiently clear as to which part of the
ECCC will be responsible for implementing this obligation. It is essential that the Internal Rules
clarify how protection and support for the victims and witnesses will occur.
Draft Rule 34(3) refers to consultation between the judges and “the Victims and
Witnesses Unit”. However, no such unit with responsibility for witness
protection is contained in the Draft.
Draft Rule 13 refers only to a Victims Unit, but it is aimed primarily
at facilitating victim participation in proceedings as civil parties, including
legal representation and advocacy of victims’ interests, along similar lines as
the assistance provided to suspects and accused persons by the Defence Office.[6][6]
To this end, the proposed role of the Victims Unit is quite
different from the protection and support functions that Victims and Witnesses
Units now perform in many other international and internationalized courts,
such as ICTR, ICTY and the
It should also be noted at the outset that not all witnesses
who are called before the ECCC will be victims.
In order to prove the nature of command structures for cases of superior
responsibility for serious crimes, some of the most critical evidence may come
from lower level Khmer Rouge cadres, or even from those who may be potential
suspects themselves. Similarly, many witnesses who may be in need of the
greatest levels of security protection may in fact be those who can testify for
the defence.[8][8] A comprehensive support and protection
program would therefore require managing the necessary transport and
accommodation requirements of these various groups. While Draft Rule 34(1)
suggests the security function will be spelled out in greater detail in the
“the supplementary agreement and security and safety and the relevant Practice
Directions”, as described above there is a difference between security and
support in a broader sense. Furthermore, ICTJ understands that the security
function is likely to rest solely with the Royal Government of Cambodia. While
both the ECCC Law and Agreement state that the Royal Government of Cambodia
shall take all necessary steps to ensure the safety and protection of persons
referred to in the Agreement, this does not absolve the ECCC as a whole of its
duty to properly discharge its obligation to protect the interests of both
victims and witnesses. There is a
particular duty upon the ECCC in this regard as concerns about the lack of
adequate protection for victims and witnesses have been raised throughout the
process of negotiations for the ECCC’s establishment.
The Internal Rules are the appropriate source in which to
clarify this obligation, and if necessary the absence of adequate funds and
personnel to implement the provisions should be sought as a matter of urgency. In order to give meaning to draft Rule 34(6),
the Director and/or Deputy Director of Administration should be explicitly
granted the power to negotiate witness relocation agreements with other states.
Failure to address this issue will pose serious risks to the ECCC’s ability to
forge trust among victims and potential witnesses in the proceedings, which in
turn may undermine both its legitimacy and effectiveness, particularly in
relation to leaving a positive legacy in
3.
Reparations (Rule 27)
One feature of the draft Internal Rules that deserves
further examination is the power of the ECCC to award reparations for injury
suffered by civil parties. Draft Rule 27(12) provides that reparation can be
made for injury suffered by Civil Parties, including by awarding proportionate
damages, and that “the Chambers may also award collective or symbolic
reparation.” This provision attempts to
reconcile the right of victims under existing Cambodian criminal procedure to
make civil claims in criminal proceedings with the particularities of the
ECCC. Neither the ECCC Law nor the ECCC
Agreement specifies the way in which this process shall apply, so to this end
it is commendable that the draft Internal Rules have attempted to do so.[9][9]
This is particularly important in part to address the fact that many
Cambodian victims may be expecting to participate in the ECCC process and to
seek civil awards of compensation for the harm they have suffered. Furthermore,
the inclusion of the proposed rule reflects progressive developments in
international law regarding the right to a remedy for victims of serious crimes.[10][10]
It may be useful therefore to consider briefly the larger context from
which the reference to reparations has emerged.
Reparations as a form of justice for victims and of holding
those responsible for crimes accountable may take a range of forms, individual
or collective, material or symbolic, and may be aimed at restitution,
rehabilitation, compensation, guarantees of non-repetition and satisfaction.[11][11] They may vary from large-scale state
legislative programs to individual court-ordered awards of financial payments.
This paper is obviously not the appropriate place to provide greater detail on
the theory and past practice of efforts in the field of reparations for gross
human rights violations.[12][12]
However, ICTJ’s extensive work in the area of reparations has
demonstrated some key points that should be taken into account in examining the
potential feasibility and impact of draft Rule 27.
First, there are particular practical challenges that
distinguish the claims of civil parties for compensation in ordinary crimes
cases from cases on the scale of those that are within the jurisdiction of the
ECCC. The draft Internal Rules have gone
a considerable way to address the challenges of managing the potentially
enormous number of victims of crimes that may be charged, by providing for
collective and representative claims to be made through “victims associations”. This is a commendable inclusion in the draft
Internal Rules. In the context of international criminal procedure, only the
International Criminal Court (ICC) has incorporated a similar feature into its proceedings.[13][13] However, the ICC system is also premised
on the establishment of a Trust Fund for Victims that may have greater
flexibility in awarding assistance and reparations to victims than is likely to
be possible in cases that come before either the ICC or the ECCC.[14][14]
Further discussion may be warranted to examine whether a similar process
may be useful to complement the ECCC’s work in the area, in which case ICTJ
reserves the right to provide more detailed comment.
Second, at a more conceptual level it is important to sound
a note of caution that the ECCC should take into account in attempting to
provide reparations through such a mechanism. Awards to particular groups of
victims as civil parties may be perceived as fragmenting the broader universe
of victims of the Khmer Rouge regime, thereby diminishing the aggregate
reparatory effect of the awards even if they are made collectively. The meaning
of “collective reparations” should be clarified, such as whether it aims to
repair broader societal harm, or an award to a collective of individual civil parties.[15][15] The crimes that are the main subject of
the ECCC’s jurisdiction are by definition massive and systematic. Yet not all
victims of the crimes will be able to access the civil party process, not least
because of the need to demonstrate “harm” that has resulted from the individual
criminal responsibility of specific convicted persons as required by draft Rule
27(12). Similarly, the requirement of harm that “continues to exist” should be
removed. Symbolic reparations, whether by way of memorials, public apologies,
etc., may have greater potential to avoid these concerns, although these too
risk being seen as token efforts if not accompanied by material reparations.[16][16] Yet in order to enforce financial
reparations awards, the likelihood of asset recovery from convicted persons in
sufficient amounts to cover the number of claims may be slim, which raises the
question of whether a supplementary trust fund from voluntary contributions may
be necessary.
ICTJ emphasizes that these cautionary notes are not offered
as reason to abandon the idea of reparations in the ECCC Internal Rules, but
rather to alert the Court to the importance of being aware of where additional
policy may be needed to handle the complex issue of reparations. Such policy
may be useful both in terms of developing transparent guidelines for the
implementation of the rule and also, most crucially, in terms of managing
public expectations through adequate public information and outreach.
In addressing the question of implementation, guidance
could be drawn from Rule 97 of the International Criminal Court Rules which
anticipates the range of complexity and challenges involved in determining
appropriate awards of reparations in cases involving the most serious crimes
and high level convicted persons:
…
(2) At the request of victims or their legal
representatives, or at the request of the convicted person, or on its own
motion, the Court may appoint appropriate experts to assist it in determining
the scope, extent of any damage, loss and injury to, or in respect of victims
and to suggest various options concerning the appropriate types and modalities
of reparations. The Court shall invite, as appropriate, victims or their legal
representatives, the convicted person as well as interested persons and interested
States to make observations on the reports of the experts.
(3) In
all cases, the Court shall respect the rights of victims and the convicted
person.
On the critical issue of explaining the realistic
implications of the rule to the public, outreach efforts must be clear on what
the process is for victim participation and reparations claims, and where the
likely limits are. This is essential if the ECCC is to give meaning to the
underlying rationale that its work should aim to restore the dignity of victims
and re-establish trust in the rule of law. If this is not done, the ECCC could
be raising unrealistic expectations that it is not able to meet, leading to
greater disappointment and
compounding the suffering of victims, which in the long term would damage the credibility
and legacy of the institution as a whole.[17][17]
4.
Public accessibility of the proceedings (Rules
10(4), 26, 48, 57(6), 59, 66, 77(5), 83)
Article 34 (as amended) of the ECCC Law states the general
principle that ECCC trials shall be open to the public unless exceptional
circumstances exist to justify otherwise. Article 12(12) of the ECCC Agreement
provides further explanation of the importance and extent of the openness with
which ECCC hearings should be conducted. This states that access to the
proceedings by NGOs, interested states, the media, etc., should apply at all times on the basis that it is not
only in the interests of securing a fair and public hearing in accordance with
international standards to do so, but also for the credibility of the procedure. The reference to transparency as a
fundamental principle in draft Rule 26 is to be commended for this reason.
ICTJ recognizes the importance of preserving the integrity
of a criminal investigation process, both in terms of the sensitivities of
gathering evidence and also in order to ensure the safety of potential
witnesses. Furthermore, it is understood that in inquisitorial jurisdictions
this extends through the instruction phase until the commencement of trial.
However, ICTJ considers that in relation to the particular context of the ECCC,
there is good reason to modify this general approach from that which may apply
in the case of ordinary crimes. The
well-documented lack of public trust in judicial processes and the fear of
politicization is one reason behind the mixed national-international
composition of the ECCC. Furthermore, the ECCC will be the first attempt in 25
years to investigate and hold accountable those accused of crimes that have
defined and damaged Cambodian society in irreparable ways. A more closed
process may be viewed with far greater suspicion in such a fraught context.
The provisions in draft Rules 57(6) and 59 in which the
Co-Prosecutors and Co-Investigating Judges may provide the public with selected
access to information about the progress of the investigations are commendable
departures from standard inquisitorial practice. These provisions, however,
would be strengthened considerably if the language were obligatory rather than
permissive, whilst still allowing discretion in the nature and amount of
information provided. Furthermore, as a matter of streamlining and ensuring
consistent public information practice within the ECCC, the Internal Rules
should make this explicitly part of the functions of the Office of
Administration in draft Rule 10(4) by amending it as follows:
Without prejudice to the authority of the Office of the
Co-Prosecutors, the Office of Co-Investigative Judges, the Defence Office and the
Victims Unit to receive obtain and provide information and to establish
channels of communication in the conduct of their [judicial] functions, the
Office of Administration shall serve as the official channel for both internal
and external communication of the ECCC. Procedures
for the internal management of information related to the judicial and
administrative functions as well as procedures for external relations will be
subject to the terms of the ECCC Practice Directive on the matter.[18][18]
Clarity of responsibilities for public comment will minimize
the risk of unapproved public comment by ECCC judicial or administrative
officials, which could lead to perceptions of bias.
ICTJ believes that the discretion provided in draft Rule
59(3) to the Co-Investigating judges to grant limited access to non-parties to
the proceedings during the judicial investigation sets a positive example
compared to existing Cambodian criminal procedure. Draft Rule 77(5) should be
amended in a similar way in relation to the proceedings before the Pre-Trial
Chamber, particularly in light of its expanded role in hearing pre-trial
challenges to the indictments and jurisdiction of the ECCC.
In draft Rule 83, in addition to ensuring that the
protection of victims and witnesses is a recognized exception to the general
prohibition on in camera trial
proceedings, provision should be made along similar lines to draft Rule 59(3)
to allow for limited access to closed sessions for the purpose of monitoring
compliance with minimum due process guarantees and human rights standards. Guidance could be found in Rule 79(C) of the
Special Court for Sierra Leone Rules of Procedure and Evidence which provides
that “[i]n the event that it is necessary to exclude the public, the Trial Chamber
should if appropriate permit representatives of monitoring agencies to remain.
Such representatives should, if appropriate, have access to the transcripts of
closed sessions.”[19][19]
Similar provision was made in the trials before the Special Panels for
Serious Crimes in Timor Leste, and were seen as an important means by which too
reassure the public that closed sessions were being used appropriately.
5.
Additional issues and lessons from the Iraqi
High Tribunal
In addition to the key areas detailed above, there are a
number of other important issues that deserve greater attention in the process
of finalizing the Internal Rules. While it has not been possible to provide
more detailed comment on these in the timeframe allowed, ICTJ offers some preliminary
comment only. ICTJ’s view is informed not just by the comparative experiences
of other international and mixed national-international courts, but also from
recent lessons drawn from ICTJ’s role in closely monitoring the proceedings
before the Iraqi High Tribunal (IHT) in
Some additional issues that should be addressed include the
following:
·
Full
transcripts should be provided as part of a commitment to transparency and
fairness (draft Rule 95). The length,
complexity, and politically charged nature of trials such as those before the
IHT and ECCC magnify the need for each trial to have a complete transcript and
reserve judges who are ideally available to attend all proceedings from the
beginning. The efficiency and
effectiveness of the IHT have been greatly hampered by the lack of an official
trial transcript. The lack of a
transcript has forced judges to become preoccupied with taking copious notes
during hearings, denied judges a valuable tool for issuing opinions, decisions
and judgments, and will undoubtedly hamper the appellate process because the
appellants and the appellate judges will be unable to review exactly what
happened during the first long and complex trial. The absence of a transcript has also severely
impeded external monitoring and analysis of the IHT making constructive
criticism and outreach more difficult.
·
Transparent
procedures for disqualification and replacement of judges (draft Rule 78(7)) The draft
IRs provide an extensive listing of instances in which judges may be
replaced. Given the length and
politically charged nature of system trials, the experience of the IHT (where four
out of the five trial judges were replaced during the Dujail trial) indicates
that it is likely that at least one trial judge will not be available to sit
for the entire duration of the trial. As a result, appointing at least one
reserve judge for all trials is important.
Ideally, Reserve Judges should attend all the proceedings from the
beginning of the trial to ensure an adequate assessment of the facts, however,
a comprehensive trial transcript may help mitigate the need for such an
expensive measure.
·
Greater
clarity of administrative responsibilities (draft Rules 10-11) - The Iraqi High Tribunal has suffered greatly from the
lack of a strong registry. Rules regarding the powers and position of key
managers should be carefully drafted to prevent the inappropriate downgrading
of key managerial responsibilities. The Internal Rules should specify that
dossier materials should be appropriately indexed, with a unique identification
key and reference to the chain of evidence.
·
Codes of
conduct (draft Rule 42). In
·
Greater
scope in the right of the Defence to confront witnesses (Draft Rules 29(4), 30,
63(2) and 86(1)) - While it is clear that
inquisitorial trials like those at the IHT or the ECCC do not emphasize live
oral testimony as much as adversarial trials, the ECCC must remain aware that
minimum standards and also perceptions of fairness require that the defense has
the opportunity to confront witnesses providing important evidence against
them, either at trial or during the pre-trial proceedings.
·
The need
for clear rules of disclosure that follow the well-established practice of the other
international tribunals (draft Rule 78(4)-(5)) - The ECCC should at least specify (and enforce) minimum
time requirements for disclosure of evidence to all parties before it can be
admitted at trial.
·
Parties
should be permitted to confront or challenge court-appointed experts (draft
Rule 36(10)) – this should be in addition
to the right to seek additional expert evidence.
·
Greater
clarity on the scope of admissible evidence (draft Rule 86) – The admissibility of evidence should include reference to a
requirement of probative value; an explicit exclusion of evidence gathered by
inappropriate means; and an absence of sufficient safeguards in relation to
confessions.
·
Obligations
of Investigating Judge to gather and disclose exculpatory evidence (draft Rule
58(5) – this should be made more explicit.
·
Time
limits on filing appeals (draft Rule 106) – The
draft IRs provide only a very limited time for filing an appeal, which does not
necessarily reflect the complexity and scale of cases likely to be heard by the
ECCC.
·
Greater
transparency and guidance on sentencing (draft Rule 100) – no guidance is provided currently.
6.
Concluding comments
In conclusion, ICTJ commends the ECCC’s recognition of the
need for broader input into the development of the Internal Rules, which will
help ensure that the ECCC benefits from comparative experiences in other
countries, make it more responsive to the demands of victims, and
consequentially have greater positive impact within Cambodia. The decision to
open the process to public input also serves as a valuable example for
Cambodian legal processes. To this extent, the ECCC is also setting a benchmark
for international best-practice, although the time-permitted for public
dissemination and comment could perhaps have been extended to 21-30 days. ICTJ urges the ECCC and its Rules Committee
in particular, to continue to involve external actors in providing regular
input during further reviews of the procedures as they continue to develop.
As illustrated by its comments in this paper, ICTJ believes
there are important policy considerations to consider in addition to the legal
technicalities of the drafting process.
Any procedure implemented by the ECCC must be assessed in light of its
broader role to re-establish respect for judicial processes and to provide an
effective remedy in response to systematic human rights violations. An important element of this is for the ECCC
to avoid creating unrealistic expectations of what it is able to achieve, while
ensuring its basic minimum obligations to ensure fair trials are observed and
the interests of victims are protected.
Any process which risks undermining respect for the rule of law will
thwart the Court’s efforts to fulfill this broader role. If the ECCC is to
ensure that its proceedings avoid doing more harm than good to the rule of law
in
About the ICTJ
The
In
order to promote justice, peace, and reconciliation, government officials and
nongovernmental advocates are likely to consider a variety of transitional
justice approaches including both judicial and non-judicial responses to human
rights crimes. The ICTJ assists in the development of integrated,
comprehensive, and localized approaches to transitional justice comprising five
key elements: prosecution by fair trial of perpetrators, documenting and
acknowledging violations through non-judicial means such as truth commissions,
reforming abusive institutions, providing reparations to victims, and
facilitating reconciliation processes.
The
Center is committed to building local capacity and generally strengthening the
emerging field of transitional justice, and works closely with organizations
and experts around the world to do so. By working in the field through local
languages, the ICTJ provides comparative information, legal and policy
analysis, documentation, and strategic research to justice and truth-seeking
institutions, nongovernmental organizations, governments and others.
Further
information about the ICTJ is available at www.ictj.org or by contacting Caitlin Reiger, Senior
Associate responsible for ICTJ’s
Copyright 2006
[1][1] Article 14 of the International Covenant
on Civil and Political Rights, ratified by
[2][2] For example,
[3][3] Thus, in Colozza v. Italy, the European Court of Human Rights referred to
the rights to “defend himself,” to “examine or have examined witnesses,” and
the right to an interpreter and said that “it is difficult to see how he should
exercise these rights without being present.” Colozza v.
[4][4] Both the
[5][5] One accused, Bormann, was tried in his
absence pursuant to Article 12 of the IMT Statute.
[6][6] In relation to the two proposed options
of selecting counsel to represent victims and accused persons, ICTJ recommends
adopting the list system to ensure transparency in the process.
[7][7] For example, Rule 16 of the Rules of
Procedure and Evidence of the International Criminal Court explicitly provides,
inter alia, that the Registrar is
responsible for taking gender-sensitive measures to facilitate the
participation of victims of sexual violence at all stages of the proceedings;
informing victims and witnesses of their rights under the Statute and the
Rules, and of the existence, functions and availability of the Victims and
Witnesses Unit, and ensuring that they are aware, in a timely manner, of the
relevant decisions of the Court that may have an impact on their interests,
subject to provisions on confidentiality.
[8][8] A recent study by the Documentation
Center of Cambodia found that those who testify for the defence are seen as a
particularly vulnerable target for revenge attacks within their communities:
“Takeo – A pilot fear assessment with respect to possible witnesses of the
Extraordinary Chambers in the Courts of Cambodia Project”, October 2006.
[9][9] Relevantly, Article 39 of the ECCC Law
states that “In addition to imprisonment, the Extraordinary Chamber of the
Trial Court may order the confiscation of personal property, money and real
property acquired unlawfully or by criminal conduct. The confiscated property shall be returned to
the State.” ICTJ notes that there still appears to be a gap between this
provision and the procedures contained in the Draft IRs which must be resolved.
[10][10] See in particular the adoption by the UN
General Assembly of the Basic Principles
and Guidelines on the Right to a Remedy and Reparation for Victims of Gross
Violations of International Human Rights Law and Serious Violations of International
Humanitarian Law A/RES/60/147, 21 March 2006 (“Basic Principles”), and the Updated Set of Principles for the Protection
and Promotion of Human Rights through Action to Combat Impunity.
[11][11] See the Basic Principles, supra note 10,
for explanations of these different categories. For guidance on the
implementation of different approaches to reparations, see the forthcoming
policy document from the UN Office for the High Commissioner for Human Rights, Rule of Law Tools for Post Conflict States:
Reparations.
[12][12] For extensive materials on the history of
reparations, see, The Handbook of
Reparations, Pablo de Greiff, ed. (Oxford: Oxford University Press, 2006),
which collects some of the results of a massive research project on reparations
programs undertaken by the International Center for Transitional Justice. See also Out
of the Ashes. Reparation for Victims of Gross and Systematic Human Rights Violations, K. de Feyter, S. Parmentier, M. Bossuyt, and P. Lemmens, eds.,
(Antwerp: Intersentia, 2005), and in it, Dinah Shelton’s account of the process
leading to the Basic Principles “The
United Nations Principles and Guidelines on Reparations: Context and
Contents.” See also Bernard Buxbaum, “A Legal History of International
Reparations.”
[13][13] Rule 97(1) of the Rules of Procedure and
Evidence of the International Criminal Court: “Taking into account the scope
and extent of any damage, loss or injury, the Court may award reparations on an
individualized basis or, where it deems it appropriate, on a collective basis
or both.”
[14][14] For further analysis of this issue in
relation to the ICC, see the ICTJ Discussion Paper, “Reparations and the
International Criminal Court: A Prospective Role for the Trust Fund for
Victims”, by Marieke Wierda and Pablo de Greiff, April 2004, [available upon request to ICTJ]
[15][15] It seems unlikely that the ECCC would be
able to fully define what the concept means in different settings; but its
practice can identify the nuances (as mentioned above). For instance, Rule 27.8.b
of the draft provides that "(w)here a group of Civil Parties is unable to
choose common lawyers... (they) may request the [Victims Unit] to choose one or
more common counsel for them. In that case the [Unit] shall take into account
the wishes of the Civil Parties concerned and the particular circumstances of
the case, and any conflicting interests within the group, as well as the need
to respect local traditions and to assist vulnerable groups."
[16][16] On the ECCC's "discretion" to
award "collective or symbolic" reparations, two points can be made:
a) The prudent exercise of this option might be important, given that there
will be victims of Khmer Rouge crimes who will not be ‘civil parties’ because
(a) the perpetrators who victimized them are dead or not charged, (b) they are
not able to join in the civil aspect, e.g. because they have no access to
information on reparations or to the ECCC itself – no radio, no means of
transportation, illiteracy. Symbolic reparations might include them, specially
those that are ‘collective’ in the sense of embracing either victims of the
same perpetrator or victims of the same kind of violation (even from different
perpetrators) or “collective” in that the victims have a distinct and shared
pre-violation identity that was significant in their victimization, for example
Buddhists or Cham Muslims.
b) On the other hand, any ‘collective reparations’ that might be awarded to the
civil parties should not preclude reparations for victims who are unable to
join as ‘civil parties.’ In other words, it might be important to preserve
victims’ right to reparations give that that the ‘civil party’-victims
association-based reparations remedy in the draft rules might be seen as
similar to the ‘opt-out’ mechanisms often used in class-action suits in certain
jurisdictions.
[17][17] ICTJ can make further materials on
reparations issues available as required.
As part of taking these discussions further, it might even be useful for
the ECCC to determine if, on the basis of its authority, it can recommend the
initiation of a separate and broader reparations program that would address
victims as such rather than as litigants ('civil parties.').
[18][18] There could be two documents drafted and
issued as Practice Directives or Administrative Instructions. ICTJ suggests
that the first document could be “Procedures for the Management of Internal
Judicial and Administrative Information” and cover the way in which judicial
documents are managed (levels of classification and confidentiality), documents
and procedures related to victims and witnesses, and other issues as necessary.
This should be decided in conjunction with Court Management and in consultation
with the Public Affairs Office. The second document could be a comprehensive
“Media and External Relations Policy for the ECCC” and clarify how all internal
information is externally managed and disseminated externally. Each document
should refer to one another where appropriate (for example, how judicial
documents are provided by the relevant office such as court management) to the
Public Affairs Office.
[19][19] For applications of this Rule, see SCSL, Prosecutor
v. Norman, Fofana, Kondewa, Case No. SCSL‑2004-14-T, Order on Trial
Monitoring During Closed Session, 27 October 2004 in LAUCCI (C.), op. cit.,
p. 676-677 (R79-TC-10).
[20][20] See ICTJ Briefing Paper, “Dujail: Trial
and Error?”, November 2006, available at www.ictj.org
[21][21] It should be noted of course that the
jurisdictional similarities are limited as the underlying legal framework in