Victims, Atrocity and International Criminal Justice

Lessons from Cambodia

Rachel Killean

• Publisher: Routledge
• Year: 2018
• ISBN:
  9781351733311
• Edition: 1
• Topic: Derecho
• Subtopic: Teoría y práctica del derecho

While international criminal courts have often been declared as bringing 'justice' to victims, their procedures and outcomes historically showed little reflection of the needs and interests of victims themselves. This situation has changed significantly over the last sixty years; victims are increasingly acknowledged as having various 'rights', while their need for justice has been deployed as a means of justifying the establishment of international criminal courts. However, it is arguable that the goals of political and legal elites continue to be given precedence, and the ability of courts to deliver 'justice to victims' remains contested. This book contributes to this important debate through an examination of the role of victims as civil parties within the Extraordinary Chambers in the Courts of Cambodia. Drawing on a series of interviews with civil parties, court practitioners and civil society actors, the book explores the way in which both the ECCC and the role of victims within it are shaped by specific political, economic and legal contexts; examining the 'gap' between the legitimising value of the 'imagined victim', and the extent to which victims are able to further their interests within the courtroom.

1 Introduction

The participation of legal representatives of victims of the Khmer Rouge crimes in the ECCC proceedings is considered to be a historic day in international criminal law. To date, no international or hybrid tribunal mandated to investigate war crimes, crimes against humanity or genocide has involved victims as civil parties, giving them full procedural rights.¹

At 9 a.m. on the 21 November 2011, 16 kilometres outside Phnom Penh in a building situated within the grounds of the Royal Cambodian Armed Forces, the curtains opened on what has been called ‘the most important trial in the world’.² The ECCC was commencing its second trial, against three of the most senior leaders of the infamous Khmer Rouge regime: Ieng Sary, Nuon Chea and Khieu Samphan. Had you managed to secure yourself a seat in the Court’s large viewing gallery,³ the opening of the curtain would have revealed a courtroom of particularly grand proportions. On the back wall, you would have seen the emblems of the two forces responsible for the ECCC’s unique hybrid structure⁴ – the United Nations (UN) and the RGC – with the emblem of the ECCC symbolically placed between them. You would have observed the range of Cambodian and international actors present: from the judges in their robes to the multitude of lawyers on either side of the courtroom. Your eyes might have been drawn to the elderly Cambodian men at the centre of the trial: the three accused. But they may also have been drawn to an additional group of 11 Cambodian individuals sitting in the room. These individuals and their lawyers sat as living representatives of those who survived the Khmer Rouge’s brutal regime and of ‘one of the areas in which the ECCC is breaking new ground’⁵: the recognition of the Khmer Rouge’s victims as civil parties.

Over the last 70 years, there has been a growing impetus to prosecute mass atrocities as international crimes.⁶ Yet while international(ised) criminal courts⁷ have often been declared as bringing ‘justice’ to victims, their procedures and outcomes historically showed little reflection of the needs and interests of victims themselves.⁸ Such an approach is reflective of the traditional position of the victim within many domestic legal systems;⁹ one consequence of the emergence of modern criminal law has been what Christie has termed the ‘theft of the conflict’ from the victim,¹⁰ with the state prosecuting alleged perpetrators for crimes perceived to be against the state rather than against an individual.¹¹ This situation has changed significantly over the last 70 years both nationally and internationally.¹² The inclusion of victim-centric provisions at the ECCC, as well as the permanent ICC, the STL and the Extraordinary African Chambers (EAC)¹³ are indicators of what some have described as a shift towards a more ‘victim-orientated justice’.¹⁴ Victims are increasingly acknowledged as having various ‘rights’, including the rights to protection, participation and reparation.¹⁵ The international acknowledgement of such rights, while often vague and non-prescriptive,¹⁶ has led to Aldana-Pindell identifying an evolving ‘universality of victims’ rights’.¹⁷

Nonetheless, to return to the ECCC’s viewing gallery, the first days of trial soon revealed that while both the prosecution and the defence were permitted to make opening statements, the lawyers representing the victims were not. Fiercely resisted by the victims’ lawyers, this contest is emblematic of a much larger struggle which has existed within the court since it began operations.¹⁸ The unprecedented role given to victims within the ECCC has been subjected to a number of modifications and restrictions as the court has progressed.¹⁹ The court has struggled to balance the involvement of large numbers of victims and their lawyers with the need to ensure expedient trials and the rights of the accused.²⁰ Such struggles are not unique to the ECCC, and the purpose and feasibility of victim participation remain subject to rigorous debate amongst practitioners and academics alike.²¹ The variety of views spans from those who express practical fears as to the impact of victim participation on efficiency and fair trial rights²² to those who adopt more normative arguments about the need to place victims at the centre of proceedings, with criminal trials acting as the locus to give effect to the needs of victims.²³

While the extent to which international(ised) criminal courts can and should be amenable to victims’ interests is increasingly contested,²⁴ the ‘imagined victim’²⁵ of atrocity²⁶ has grown in prominence within the speeches of those seeking to legitimise those same courts.²⁷ The predominance of victim-centric language within ICL discourse has increased significantly with the advent of the ICC, with victims being described as that court’s raison d’être.²⁸ Similarly, the ECCC has utilised victim-centric language since its inception,²⁹ with the ‘imagined victim’ appearing in the public pronouncements of the court’s practitioners,³⁰ of donor state representatives³¹ and of monitoring non-governmental organisations (NGOs) and academics.³² The apparent dissonance between such statements and the actual protection of victims’ interests has led some commentators to claim that victims are being instrumentalised by proponents of international criminal justice while receiving little of substance in return.³³ Yet as ‘justice for victims’ rhetoric becomes increasingly entrenched in ICL’s normative framework,³⁴ the support of victim populations and perceived legitimacy³⁵ are increasingly heralded as crucial to the success of ICL as a legitimate system of law.³⁶ It is therefore clear that the relationship between victims and international(ised) criminal courts remains contested amongst practitioners and academics alike. At the heart of the debate lie fundamental questions with regards to the legitimacy of ICL, the role of victim communities and the ability of international(ised) criminal courts to deliver ‘justice to victims’. Much of this debate is at times quite theoretical in nature, and it is therefore important that the discussion is accompanied by empirical research into how victim participation is being performed in practice.³⁷ It is such an approach that this book seeks to contribute to the discussion.

1. Aim and approach: a multi-perspective analysis

This book draws from qualitative field research conducted in 2013 and 2014, during which semi-structured interviews were conducted with 18 lawyers, judges and administrative staff employed by the court; seven lawyers and civil society actors engaged in work related to the court’s functions; and 27 Cambodian citizens who were either currently, or had previously been, accepted as civil parties at the ECCC. Ethical approval was obtained from my institution beforehand, respondents were fully informed about the project, and informed consent was obtained before beginning the interviews. In order to ensure anonymity, interviewees are identified by either their job description (e.g. judge) or their relationship to the court (e.g. civil party). As it is primarily a qualitative study, no claims are made as to the study being statistically representative. Rather, it is an exploration of how particular people, at a particular time, have understood their actions and experiences.³⁸ In addition to drawing on interviews, the book features textual analysis of the ECCC’s judgement and pronouncements, particularly in the context of Chapter 5, which considers the role of judges in shaping civil party participation. The interview schedule is included in the Appendix.

This study seeks to make three contributions to the existing literature on international criminal justice: (1) utilising a multi-perspective, actor-oriented analysis,³⁹ it will shed light on the way in which both the ECCC and the role of victims within it were shaped by specific political, economic and legal contexts; (2) it will provide an empirical contribution to the discussion surrounding the perceived ‘gap’ between the legitimising value of the abstract ‘imagined victim’ and the extent to which victims are able to further their interests within international criminal courts; (3) it will analyse the impact, if any, that victim participation has had on the ECCC’s ability to deliver ‘justice’ and garner legitimacy in the eyes of civil parties. These will each be outlined in turn.

The first contribution takes as its starting point Douglas’s argument that institutions cannot ‘think’ for themselves. Rather, they are constructed, interpreted and guided by the approaches and attitudes of those engaged in their work.⁴⁰ Similarly, the rule of law is not an objective and finite entity but, rather, a site of contest and struggle, often interpreted in many different ways by different actors.⁴¹ As victims of international crime have received enhanced roles within ICL, it has fallen on lawyers, court officials, outreach workers, intermediaries and others to implement these policies in practice.⁴² The new and evolving nature of ICL as a legal system grants practitioners an influence that would not often be found within domestic jurisdictions. The mobility of professionals between and within international criminal institutions, as well as their movement between roles as scholars, advocates and practitioners, potentially expands their sphere of influence.⁴³ In placing these actors in a key position within the analysis, we ‘get the sense of law as ...

Table of contents

• Cover
• Title
• Copyright
• Contents
• Acknowledgements
• List of abbreviations
• 1 Introduction
• 2 Victimology, victims’ rights and the politicised victim
• 3 Compromised justice: the road to the ECCC
• 4 Crafting victim participation through judicial policy making
• 5 Judicial implementation of civil party participation
• 6 Practitioner perspectives on working for and with victims
• 7 Professionalised civil society and the civil party system
• 8 Civil parties, justice and legitimacy at the ECCC
• 9 Lessons learned from Cambodia
• Appendix
• Bibliography
• Table of cases
• Table of legislation
• Index