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:
- To date, no precedents have been set about compensating victims of genocide.
- 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.
- 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.
- 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
