About five years ago, Khmer Rouge tribunal civil party lawyer Lyma Nguyen was looking into allegations of genocide against ethnic Vietnamese in Kampong Chhnang province.
The investigation, which focused on her clients, yielded interesting findings, she said – evidence of policies designed to destroy mixed marriages between Khmers and Vietnamese, instances of Khmers being forced to kill their Vietnamese spouses, and in some cases, even their mixed-ethnicity children.
“Interestingly, the prosecution focused their case of genocide of the Vietnamese on Svay Rieng and Prey Veng provinces only, and the prosecution witnesses were mainly Khmer spouses subjected to the policy, whereas in Kampong Chhnang, we had ethnic Vietnamese witnesses and survivors who could detail the same policies in that other part of Cambodia”, Nguyen said in an email. “We intended to interview a key person who was [a] victim and witness in the implementation of this policy, but before we could do so, he passed away.”
“That was when I first had a real sense of ‘losing the evidence’ to time,” she added.
While the recent death of Ieng Sary has prompted very public ruminations on the age of the accused and the complications that may arise as they become increasingly infirm, little has been said about victims and the trial’s roughly 4,000 civil parties, many of whom were the defendants’ contemporaries, and for whom the passage of time has been no less kind.
“The death of civil parties is a serious issue, because it is, essentially, a loss of evidence to time,” said Nguyen.
Nguyen, who says a number of her clients have died over the course of the trial, puts the average age of them between 60 and 65 – an advanced age in a country where the life expectancy hovers around 61, by the World Health Organization’s count. While it is possible for civil parties to transfer their claims to their next of kin, she said, it isn’t always easy, as was the case when she had to appeal a ruling that the claims of one of her clients became “extinct” upon his death.
“The deceased civil party happened to be a key prosecution witness for the case of genocide of the ethnic Vietnamese, as it occurred in Prey Veng,” she said.
“Two of his siblings were also civil parties and the family was deprived of an opportunity to exercise their rights under the Cambodian domestic laws to take over their brother’s civil claims.”
A meeting late last month of some 70 civil party representatives organised by rights group Adhoc – which helps manage the cases of more than 1,700 civil parties – found that many civil parties experienced increased difficulty in participating in proceedings. Attendees noted the need for medical and material support was becoming a necessity as age-related illnesses become more common, according to an account of the meeting in the tribunal’s monthly Court Report.
“After Ieng Sary passed away, I got a lot of questions from the civil parties,” said Latt Ky, who handles Adhoc’s dealings with civil parties.
“Some of them are very disappointed that the movement of the trial – they consider it slow. They are looking for justice, and they are also looking for reparations from the court,” he said.
Court spokesman Lars Olsen said that the court provides transportation to the court “on a rotating basis,” and puts together “regional forums ... so that civil parties can come get information about the case and meet with their lawyers,” but that so far, no other services or reparations are on offer.
The idea of reparations in the form of medical and psychological help has been bandied about in the past, but was deemed inappropriate during the Duch trial, and still faces difficulties in the current trial chamber, said Anne Heindel, a legal adviser for the documentation NGO DC-Cam.
According to Heindel, medical care was ultimately rejected as a form of reparation in the case against Duch, because he was deemed unable to pay for it.
However, a rule change allowing reparations to be funded by outside donors seemingly hasn’t gained any traction, she added.
“The Supreme Court, in their judgment on the issue, they said that medical and psychological care is an appropriate form of reparation,” Heindel said. “However, the trial chamber since then still seems to have reservations.”
“The civil parties gave the trial chamber a list [of proposed reparations], and the trial chamber was a bit hesitant with a number of them, actually most of them, saying they lacked specificity,” she added. “How well planned does it have to be in advance? It’s just uncertain.”
Paying for reparations, said civil party lead co-lawyer Elisabeth Simonneau-Fort, is further complicated by the court’s rules, which require the parties to choose between reparation funding coming from outside donors and funding coming from the accused.
“We requested an amendment of such a rule so that civil parties could request both together, but it has been rejected,” she said.
And while the court is not responsible for civil parties’ healthcare, said Simonneau-Fort, there are two psychological rehabilitation projects being arranged in conjunction with the Transcultural Psychosocial Organization, which “the court will have to appreciate if they can be acknowledged as reparation, if at least one accused is found guilty”.
“It was impossible, due to the number of civil parties, to have individual and financial reparation, but [this] form of reparation can also bring some relief,” she said.
Nonetheless, civil parties aren’t getting any younger.
“Every survivor who dies is a loss of a living witness to what happened,” said Heindel. “Just like losing Ieng Sary, the same will happen with the loss of survivors. You lose a piece of the puzzle.”
But some of those survivors are already losing interest. Civil party Taing Kim, 58, hid in a tree to escape one forced marriage, escaped another when a “good-hearted” Khmer Rouge soldier said she was too young, and even escaped execution when she was sent for re-education by being the last woman in a line of eight to be killed.
“They were all killed, one by one, but when they killed the seventh, a pregnant lady, they tried to remove the foetus from her,” she said in an interview yesterday. “Every soldier was looking at her, so I managed to escape away.”
But even after surviving so much to make it through, Kim said she doesn’t “really care the tribunal much now, because it’s late to try those old suspects, and justice is not coming soon”.
“It wastes my time to come to court,” she added. “I’m a normal farmer, and I just work on the farm to fill my stomach. I’m poor. I have no energy to come when those Khmer Rouge suspects don’t really confess to the crime they did.”
ADDITIONAL REPORTING BY CHHAY CHANNYDA