When the initial Duch verdict was handed down in July, 2010, the Civil Parties of Orphans Class—a sub-group of the Association of Khmer Rouge Victims in Cambodia—launched a public campaign for ECCC inventory and provincial learning centres as part of the right to reparations for all Khmer Rouge victims.
Meng Kimlong/Phnom Penh Post
A woman takes part in a ceremony for victims of the Khmer Rouge at the Choeung Ek killing fields earlier this month.
Three days after that verdict, the ECCC Trial Chamber offered this as full reparation: “To compile and post on the ECCC’s official website all statements of apology and acknowledgements of responsibility made by [Duch]”
Unsurprisingly, the hollowness and insensitivity of this “reparation” triggered public outrage.
It also raised these rhetorical questions: How many victims own a computer?
And of those who own a computer, how many have access to the internet?
A year later, we issued a similar demand with an open letter to the tribunal’s lead co-lawyers and the 40 intermediary lawyers representing the civil parties to advocate at the ECCC hearings on reparations.
We acknowledged the scope of our demands as follows:
“It is also our understanding that (i) the Chambers may award only “collective and moral reparations to Civil Parties”; (ii) Article 39 of the ECCC Law to “be awarded against, and be borne by, convicted persons” not to exclude the Cambodian government and the United Nations, parties to the laws and agreements establishing the ECCC in the provision of this collective and moral reparation as owners of the inventory; and (iii) any sensitive materials and data can be easily removed and protected before the handing-over of the inventory “In addition, we demand that provincial learning centres-memorials be established in each of the 24 provinces of Cambodia as part of our right to reparation and the legacy of memorialising and education.
“With all due respect, Phnom Penh was not the only crime scene; memorialising and resources need to include, and respect, the 85 per cent of Cambodian victims who reside in the provinces.”
A few days after this open letter, the elite club of ECCC officials (civil-party lawyers, administrators, judges) met—presidents and representatives of victims’ associations don’t matter in this high-minded discussion on reparations, as we can’t possibly know what we want—and decided to seal shut any possible interpretation of government and UN responsibility.
This club amended Article 39 of the ECCC Law, stripping it of the language quoted above, but with the document falsely stating that it had last been amended on August, 26, 2007 (which opened up the possibility that I had invented the above-quoted language).
As it stands now, the full Article 39 reads: “Those who have committed any crime as provided in Articles 3 new, 4, 5, 6, 7 and 8 shall be sentenced to a prison term from five years to life imprisonment.
“In addition to imprisonment, the Extraordinary Chamber of the trial court may order the confiscation of personal property, money and real property acquired unlawfully or by criminal conduct. The confiscated property shall be returned to the State.”
The vacuity of past discussions by the ECCC elite club on victims’ reparations was given the final seal of approval with the ECCC Supreme Court Chamber’s summary decision of February 3 “that awards are borne exclusively by convicted persons”, thus shielding the Cambodian government and the United Nations from any responsibility.
I won’t go into the other serious concerns raised by the final decision on Duch, except to say that we, the victims, and we, the larger Cambodian society, have had to pay an extremely high price for his life sentence.
A life sentence fits with the gravity of the crimes and should have been handed down in the first instance without the high drama in such a simple case as this, in which the defendant confessed and co-operated, mounds of corroborating documents existed and survivors of Tuol Sleng testified.
But that’s not the point.
The price we have to pay comes in the serious consequences of (i) the Supreme Court Chamber’s erasure of the illegality of Duch’s pre-trial detention at the Cambodian Military Court; (ii) the SCC’s uneasy language on personal jurisdiction in light of the imbroglio of Cases 003/4, stating that “whether an accused is a senior leader or one of the most responsible are exclusively policy decisions for which the Co-Investigating Judges and Co-Prosecutors, and not the Chambers, are accountable” where history, resources and power are not on our side; and (iii) making Duch the sole scapegoat of the Khmer Rouge regime and its crimes.
By any interpretation, this is manipulation of victims.
This is exploitation of our suffering.
This is disempowerment, whereby the tools of “justice” are used to perpetrate injustice.
The danger now is that it comes with a United Nations insignia.
It comes with Japanese yen and the high-minded rhetoric of Western ambassadors for vacuity.
It doesn’t matter how many billions Western donors and Japan continue to spend on “rule of law” via the various aid agencies, because what they are embracing at the Khmer Rouge tribunal will undo any benefits they may have produced.
We’re talking about the embedding of dark mentalities by the tribunal with United Nations insignia that will wash through the larger Cambodian society for decades to come – long after the KRT has closed the gates on its military-situated compound and the UN has left on another genocide-chasing mission.
Theary Seng is the founding president of the Association of Khmer Rouge Victims in Cambodia.