Reparations a major issue

A general view inside the Extraordinary Chambers in the Courts of Cambodia in Phnom Penh in July
A general view inside the Extraordinary Chambers in the Courts of Cambodia in Phnom Penh in July. ECCC

Reparations a major issue

Comment

Permit me to provide some complimentary elements to your article published on August 7, 2013. We are arriving at the end of Case 002/01 and should be pleading our case in mid-October.

This coming September 26, the civil parties will lay down their final memorandum on reparations, in which they will present the projects that they have chosen to develop, and that the chamber can recognise as reparations.

With the law requiring civil parties to make a choice between a sentence levied against those declared guilty or a project put into action and financed by exterior donors, the civil parties have had to quickly admit that only the presentation of projects was conceivable because, in spite of their demands during the investigation phase, no serious investigation was made into the actual financial situation of the accused.

The law, as written, imposes upon the civil parties a heavy and unjust burden with regards to reparations.

In effect, the civil parties have the obligation to find the funding for these reparations, with the help of the Victims Support Section of the ECCC. Since the first submissions related to reparations, we have underlined this extraordinary burden and its unjust nature.

In February 2013, again the civil parties drew the attention of the chamber to the difficult problem of funding reparations.

Such difficulties are very regrettable but, alas, hardly surprising, keeping in mind the actual economic climate and the budgetary restrictions that are being imposed on everyone, in particular on the states likely to help with the realisation of reparations projects.

Despite the generous engagement of certain donors, to whom we are very grateful, it is advisable to recognise that with less than two months until the filing of our memorandum, the funds are far from covering the realisation of the small number of selected projects.

The crucial question to ask going forward is whether the reparations could be refused for want of funding. More generally, the question to ask is whether it is fair that conditions be placed on the awarding of reparations in a criminal trial at the end of the proceedings due to some questions of funding, with the remainder left to the responsibility of the victims themselves.

The answer should obviously be “no”.

Here before the ECCC, the civil parties have, for the first time in international justice, a place in the trial. The importance of this place and its indispensable nature has not been a source of debate in the Romano-Germanic systems of law for a long time.

In front of the ECCC, the civil parties have demonstrated how much they can add an impact to the arguments, and an indispensable human dimension to such a trial. They have added factual elements.

With the greatest dignity, they have faced questions with the sole aim of contributing to the truth. Besides their right to participate actively in the procedure, they have a right to reparations, consecrated internationally in numerous texts.

A just trial is a trial which results in a justly motivated verdict, but also in just reparations in the event of a conviction. Reparations are an essential element to a criminal trial, notably when it deals with – as this one does – mass crimes touching an entire population with a high degree of seriousness, as was pointed out by civil parties at the time of their depositions.

A criminal procedure that includes victims in the capacity of civil parties should allow that reparations can be allocated at the end of the trial, without the questions related to financing being left to the civil parties themselves.

Since the creation of the ECCC, the introduction of civil parties has been rightly hailed as a remarkable event and, for many, an incontestable advance in recognising victims and their rights.

The law is what it is. It is imposed upon everyone.

But it would be quite regrettable if, for financial reasons that should remain foreign to them, the civil parties don’t receive reparations corresponding to the extremity of their loss.

A setback to reparations for financial reasons would necessarily affect the verdict and the symbolic value that it would have, both at the national and international level.

At this stage, we can only emphasise this harmful situation and attempt to inform opinions, particularly those which have been engaged until now in allowing the ECCC to constitute an example in the field of victim participation.

We are aware that the funding of the ECCC has constituted, for some, an important financial effort.

However, within the bounds of legal constraints, we forcefully call upon donors, public and private, and the Cambodian government in order that each contributes, according to its position, substantial financial support to the realisation of the reparations that constitute an essential element of this process.

There will not be a significant and just verdict without reparations that are equally significant and just.

Elisabeth Simonneau-Fort is the International Civil Party Lead Co-Lawyer at the Extraordinary Chambers in the Courts of Cambodia.

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