It can be accurately stated that every Khmer is a "victim" of the Khmer
Rouge soldiers, as virtually every Khmer has suffered loss of family members, house
and home, rights etc. during the period of 17 April 1975 to 6 January 1979, the temporal
jurisdiction of the Extraordinary Chambers in the Courts of Cambodia ("ECCC").
As a "victim", every Khmer has the choice to participate actively in the
ECCC, as a matter of law, in three capacities: (i) be a witness, (ii) file a complaint
to the Office of Co-Prosecutors, or (iii) be a civil party.
The first 2 options are normally the ways victims participate in criminal proceedings,
particularly of mixed tribunals, e.g. Special Courts of Sierra Leone.
Generally speaking, a common law witness helps the argument of a party (albeit the
prosecutor or the defendant) and a civil law witness helps the investigating judge
to find the "truth" of the matter.
Put simply, a complainant files a complaint to the office of prosecution, requesting
that the prosecutor charge a particular defendant with a crime.
As either a witness or a complainant, one is not a party to the criminal proceeding
and does not have access to the case files (or dossiers) or rights to any reparation
(material, moral or otherwise). Here, the parties are only two: (i) Prosecutor v.
The ECCC is unprecedented in giving the choice for a victim to become a civil party.
No other mixed tribunals have such provision. In addition to the ECCC, the only other
court, addressing mass crimes of international nature that permits civil party, is
the International Criminal Court (and the ICC is an "international", and
not "mixed", tribunal).
Unlike victim as a witness or victim as a complainant, victim as a civil party is
a party to the criminal proceeding(s). Here, then, the parties are: (i) Prosecutor
and (ii) Civil Party v. (iii) Defendant.
As a Civil Party to the criminal proceedings, one has most if not all the rights
as a party: access to the case files (or dossiers), reparations etc.
How to become a civil party
How does a victim become a civil party normally and particularly with the ECCC?
First, there has to be a charge of a crime against a person by the investigating
Second, there has to be an injury suffered by the applicant; it has to be a "legal"
injury (for it to be admissible) in that the injury must be (i) physical, material
and/or psychological and (ii) the direct consequence of (legal nexus/linkage to)
the offense against the charged person.
At the ECCC, the Co-Prosecutors have forwarded five names to the Co-Investigating
Judges ("CIJ"). The CIJ has publicly made known and charged two suspects,
Kaing Guek Eav (alias Duch) with crimes against humanity, and Nuon Chea with crimes
against humanity and war crimes.
Prior to these charges of the CIJ, it is possible to be a witness or complainant,
but not possible to be a civil party (as there have been no charges); without the
known offenses (crimes against humanity and war crimes) and persons (Duch, Nuon Chea),
there's nothing or no one to link the applicant's injury to.
Now, it is possible for a victim to become a civil party, either to the charge against
Duch, or to the charges against Nuon Chea. And in the future, should the CIJ charge
more person(s) with offense(s), a victim can join as civil party to that offense
To give concrete form to these concepts, below is the bulk of my civil party application
(1 pages in English) to the Office of CIJ which has been accepted:
I am applying to be joined as a Civil Party to the criminal proceedings and support
the prosecution against Mr. Nuon Chea. Mr. Nuon Chea was arrested and provisionally
detained by the ECCC on Wednesday, 19 September 2007, on charges of crimes against
humanity and war crimes committed in Cambodia between 1975 - 1979 ("Alleged
As former Deputy Secretary of the Democratic Party of Kampuchea (or informally, the
"Khmer Rouge") during this time, Mr. Nuon Chea was responsible for the
Khmer Rouge forces under his effective command, control and/or authority as a result
of his instructions or failure to exercise control properly over these forces.
I am a child female victim of the Alleged Offenses committed by and/or attributable
to him during that time period.
As a direct consequence of the Alleged Offenses, I (at the age of 4 - 8 years), among
(a) lost my father, who was a victim of forced disappearance and was murdered by
officers of the Khmer Rouge;
(b) was, together with my family, forcibly evacuated from Phnom Penh to Svay Rieng
Province by officers of the Khmer Rouge;
(c) was imprisoned in Bung Rei in Svay Rieng Province for a period of approximately
5 months by officers of the Khmer Rouge;
(d) was deprived of access to food, medicine, education and other necessities by
officers of the Khmer Rouge;
(e) suffered torture and other cruel or inhuman treatment by officers of the Khmer
(f) witnessed other prisoners being tortured and/or murdered by officers of the Khmer
(g) witnessed my mother being tortured or subjected to cruel and inhumane treatment
by officers of the Khmer Rouge; and
(h) lost my mother, who was a victim of forced disappearance and was murdered by
officers of the Khmer Rouge.
In the circumstances, I personally suffered physical, material and psychological
injury and would like to participate in the criminal proceedings against Mr. Nuon
Chea (and in the future, against any other senior Khmer Rouge leaders charged with
crimes against humanity, war crimes and/or genocide).
Administration of CivilParty applications
Because many Khmers suffered as victims within the definition of a "civil party"
and theoretically the Office of the Co-Investigating Judges may receive tens of thousands
of applications requesting to become a civil party, the process can be administratively
messy and unworkable. Hence, to lessen the administrative burden of and give order
to this process, it is immensely important that victims who apply to be a civil party
(i) use the standard form of the ECCC, and (ii) join a group or association with
For example, civil party applications can be grouped by (i) zones, e.g. Eastern Zone,
(ii) status, e.g. Orphans (victims, who under 18 years, lost both parents during
1975-79, (iii) etc.
The ECCC will soon have a working Victims Unit. Also, the Cambodian Human Rights
Action Committee ("CHRAC") is interested in acting as a clearinghouse for
victims (as witness, complainant or civil party). The Center for Social Development,
in association with and as a member of CHRAC and on its own, will focus on assisting
those who are only interested in becoming a civil party (as a matter of division
of labor, making the process more concretely and manageable). I, in my personal capacity
already as a civil party, am interested in representing those individuals, who as
a child (under 18) lost both parents.
The opportunity provided by the ECCC for victims to become a civil party is truly
awesome and should be thoughtfully and meaningfully taken by any Khmer who wish to
(i) bring justice (to whatever degree) for and in the memory of loved ones who died,
and (ii) force charged senior Khmer Rouge leaders to own up to the horrific crimes
which unfolded from which we are yet trying to recover, even almost 30 years later.
This is not an issue of revenge, but of justice and responsibility.
Theary C. SENG