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Compensating KR victims

I have read "Cry for justice soon to be heard" (Post, June 16, 2006) with

great interest. I would like to share my thoughts on the issue of compensation.

The Extraordinary Chambers in the Courts of Cambodia (ECCC) are now preparing cases

against senior Khmer Rouge leaders. At this point, it is not appropriate to raise

the issue of compensation because it can cloud the meaning of justice.

Stating that "by law in other countries, victims not only get justice, but also

compensation" could jeopardize victims' expectations of justice, reconciliation

and the rule of law. From my own observations, it seems that most of the victims

of the Khmer Rouge are not motivated by the possibility of receiving compensation;

most of them simply want to see justice done.

It is true that in European systems, victims of crime can pursue claims of compensation

during criminal trials. In common law systems, victims can pursue separate tort suits

in parallel with criminal proceedings. Even the ICC has provisions allowing for monetary

reparations for victims. However, several other factors suggest that it is not appropriate

to raise the issue of compensation at the moment:

  1. To date, no precedents have been set about compensating victims of genocide.
  2. Both international law and customary international law say little about compensating

    victims of such international crimes as genocide and crimes against humanity. However,

    international law is increasingly addressing the right of victims to "reparations."

    This invites judges to decide on how to calculate damages and how to pay for them

    by taking into account all factors behind the crimes. It also allows them to be creative

    about nonmonetary forms of reparation, such as memorials and days of remembrance.

  3. Determining the number of victims and calculating the total compensation - especially

    after 27 years - would be a nearly impossible task. Further, it is not likely that

    the ECCC will be able to afford compensation for all of the victims of Cambodia's

    genocide.

  4. During Democratic Kampuchea, millions of Cambodians died and vast amounts of

    property were destroyed or seized by the Khmer Rouge. It will be impossible to return

    most of this property to its rightful owners given the passage of time, although

    the ECCC might be able to do so in certain instances.

While the Law on the Establishment of the Extraordinary Chambers is silent about

compensation, this doesn't mean that there is no way to make compensation available.

Article 39 of the amended ECCC Law does reference the confiscation of property that

Khmer Rouge leaders gained from illegal acts between 1975 and 1979, and dictates

that "[t]he confiscated property shall be returned to the state."

Article 39 opens the possibility for compensation within the legal framework of the

court. Thus, people can submit a request to the government at the time when it can

really receive the confiscated property or money as stated in Article 39 to make

symbolic compensation to the victims by using that money, for example, to build a

national center for traumatized victims to get treatment free of charge.

To close, seeking compensation at this point may distract us from the most important

contribution the ECCC can make: providing justice to victims by ending the impunity

of the senior leaders of the Khmer Rouge.

Dara Vanthan - Documentation Center of Cambodia

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