With Case 002/01 drawing to a close at the Khmer Rouge tribunal, civil parties to the proceedings, for the first time in the history of international justice, are facing the prospect of receiving reparations for the atrocities they endured – if they can pay for them, that is.
Ever since it amended its internal rules in the wake of its conviction of S-21 jailer Kaing Guek Eav, aka Duch, the court has allowed for non-monetary collective reparations for civil parties to be paid for by external donors in the event that the accused are found to be both guilty and incapable of paying for reparations.
In the absence of explicit fundraising rules, however, gathering that funding has fallen to the Victims Support Section (VSS) and, in part, to civil party lawyers themselves, who now have until September 26 to present a final submission of reparations projects to be approved by the court – but only if the necessary funding is already in place.
In an August 1 memo to civil party lawyers, the trial chamber says that a proposed list of reparations already submitted “appropriately acknowledge the harm suffered by Civil Parties ... and provide benefits to the Civil Parties which address this harm”.
But, it continues, under internal rule 23, “the Chamber may only endorse reparation measures pursuant to this sub-rule where sufficient funding has been secured”.
And securing that funding is easier said than done.
“We hope to be able to raise the awareness of some sponsors, and obtain some reparations that are not laughable,” civil party lead co-lawyer Elisabeth Simonneau-Fort said in an email.
At the moment, however, there have been only “a very small number of sponsors”, she added.
One case in point is a pair of projects meant to be carried out in conjunction with a local mental health organisation.
According to an adviser there, who asked not to be named, a preliminary budget drafted to take into account 700 civil parties called for about $1 million in funding, but so far, just over one tenth of that has been pledged.
“So, with this amount of money, the only thing we could hope to do is to start a pilot program and hope that donors jump on board,” the adviser said, acknowledging that court rulings including all Case 002 civil parties in the 002/01 judgement could cause the number of beneficiaries to jump fourfold.
The problem, in part, she added, lies with the VSS.
“There are no staff [there] who are actually experienced enough to deal with project management ... proposal writing, dealing with donors and all that,” she said.
“Also, [there is] probably a lack of motivation to really go forward and systematically and effectively address it with potential donors.”
Panhavuth Long, a program officer with the Cambodian Justice Initiative, said that a preoccupation with the court’s day-to-day expenses had also hampered reparations fundraising.
“All the relevant organs ... including the trial chamber and [UN Special Expert] David Scheffer, have not done enough to see that reparations can be implemented,” he said. “It is all on the shoulders of the VSS.”
Placing the burden of gathering the funds on the “under-funded” VSS has had other consequences, civil party lawyer Lyma Nguyen said in an email.
“That is, although the rules do not envisage civil party lawyers seeking the necessary funds for these projects, the limited resources allocated by the Court’s administration to the VSS have made an enhanced engagement of lawyers necessary,” she said.
And, according to lead co-lawyer Simonneau-Fort, fundraising is “absolutely not” in her job description.
“It’s not my job, but I have to say that I try to convince some donors ... and I continue to do so, right now, with the international donors,” she said
“I really take a lot of my time to do that ... to get good projects that are funded,” she continued, adding that she has tried to convince the VSS to make fundraising a priority. “I will not say that it is not interesting, but it should not be my job.”
Even 59-year-old civil party Pech Srey Phal found the arrangement inappropriate.
“I don’t think civil party lawyers should have to find funds for reparations projects,” she said.
“They are law people, not people who find money.... I think the court should investigate to find how much money those suspects have left and take that money to pay for reparation projects.”
A court spokesman said “a number” of VSS officials and staff were involved in fundraising and added that figures for donations weren’t immediately available.
According to Nguyen, even as the vaguely defined mechanisms for gathering third-party funding resulted in “much confusion over the years”, the court never adequately looked at the most traditional source of reparation funding: the defendants themselves.
“All charged persons were determined to be indigent for legal aid purposes, solely on the basis of declarations of the accused persons. No known investigations were conducted into the assets of these individuals, also when determining indigence for the purposes of reparations” despite requests from civil party lawyers, she added.
Long – along with Nguyen and Simonneau-Fort – stressed the importance of reparations to the process, and hinted that the window for offering them might be closing.
“They had to wait so long for the decision, and they had to wait more for the reparations, and [continued delays] would be an insult to them,” he said. “The civil parties are really old, and they want to see something that will help relieve their suffering.”
ADDITIONAL REPORTING BY CHHAY CHANNYDA