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Confronting Duch: civil party participation in Case 001 at the Extraordinary Chambers in the Courts of Cambodia

Published online by Cambridge University Press:  07 February 2012

Abstract

The Extraordinary Chambers in the Courts of Cambodia (ECCC) is unique because it is the first international criminal tribunal to allow victims of alleged crimes to act as civil parties at trial. This means that victims can have a role at the ECCC beyond being called as witnesses. After presenting the history of victim participation in national and international war crimes trials, this article examines how civil party participation shaped the trial proceedings at the ECCC, and how the civil parties viewed their interactions with the court. It concludes by reflecting on the positive and negative aspects of civil party participation in the Duch trial, and what implications such participation may have for future trials at the ECCC and other international criminal courts.

Type
Selected Articles on International Humanitarian Law
Copyright
Copyright © International Committee of the Red Cross 2012

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References

1 Extraordinary Chambers in the Courts of Cambodia (ECCC), Prosecutor v. Kaing Guek Eav alias ‘Duch’, Case No. 001/18-07-2077-ECCC/TC, available at: http://www.eccc.gov.kh/en/case/topic/1 (last visited 1 September 2011). See also Neth Phally's testimony on ECCC, Transcript of Trial Proceedings – Kaing Guek Eav ‘Duch’, Case File No. 001/18-07-2007-ECCCC/TC, 18 August 2009, Trial Day 60, pp. 109–110, available at: http://www.eccc.gov.kh/sites/default/files/documents/courtdoc/E1_64.1_TR001_20090818_Final_EN_Pub.pdf (last visited 7 September 2011).

2 Interview with Neth Phally, Kampong Cham province, 13 November 2009.

3 There were ninety-four civil party applicants at the initial hearing of the Duch trial in February 2009. During the investigation phase, twenty-eight were accepted as civil parties. During the trial, four of the remaining sixty-six applicants were rejected or withdrew their application. The sixty-two that were left had a provisional civil party status throughout the trial. Twenty-four of the sixty-two were ultimately denied civil party status at the judgment. Out of the pool of accepted and provisional civil parties, twenty-two were selected by the judges to testify at trial from a list submitted by the civil party lawyers. Decisions on civil parties' acceptance are detailed in Case 001, ECCC Trial Chamber, Judgment: see ECCC, Case File No. 001/18-7-2007/ECCC/TC, paras. 637–638, Judgment (Trial Chamber), 26 July 2010, available at: http://www.eccc.gov.kh/en/documents/court/judgement-case-001 (last visited 7 September 2011).

4 ECCC, Internal Rules (revision 3), as revised on 6 March 2009, Rule 23(2). All revisions of the ECCC Internal Rules are available at: http://www.eccc.gov.kh/en/document/legal/internal-rules (last visited 7 September 2011).

5 Ibid., e.g. Rules 23(6), 23(11), 24(2).

Ibid.

6 The ECCC consists of a Pre-trial Chamber, Trial Chamber, and Supreme Court Chamber. The Pre-trial and Trial Chambers are composed of five judges (three Cambodian and two international), while the Supreme Court Chamber contains seven judges (four Cambodian and three international). Every decision requires a ‘super-majority’, meaning an affirmative vote of at least four out of five judges in the Pre-trial and Trial Chambers, and at least five out of seven judges in the Supreme Court Chamber. A Cambodian and an international head the offices of the Co-Investigating Judges and Co-Prosecutors, while each accused is represented by at least two defence lawyers, one Cambodian and one foreign. See Law on The Establishment of Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed During the Period of Democratic Kampuchea, NS/RKM/1004/006, 27 October 2004, Arts. 9, 14, 16, 20, 23. See also ECCC, Internal Rules, above note 4, Rule 22(1) and Rule 22(2), available at: http://www.eccc.gov.kh/sites/default/files/legal-documents/KR_Law_as_amended_27_Oct_2004_Eng.pdf (last visited 7 September 2011).

7 Law on the Establishment of Extraordinary Chambers, above note 6, Arts. 1, 3, 4, 5, 6, 7, 8.

8 Estimations of the number of deaths vary. See Etcheson, Craig, After the Killing Fields: Lessons from the Cambodian Genocide, Praeger Publishers, Westport, CT, 2005, pp. 107128Google Scholar.

9 The Trial Chamber held the Initial Hearing in Case 002 on 27–30 June 2011. See, ECCC Public Affairs, ‘Trial Chamber announces agenda for Case 002 initial hearing’, press release, 16 June 2011, available at: http://www.eccc.gov.kh/sites/default/files/media/ECCC%20Press%20Release%20-%20002%20Initial%20Hearing%20Agenda.pdf (last visited 7 September 2011).

10 See ECCC, Decision on Ieng Thirith's Fitness to Stand Trial, Case File No. 002/19-9-2007/ECCC/TC (Trial Chamber), 17 November 2010, available at: http://www.eccc.gov.kh/en/document/court/decision-ieng-thirith039s-fitness-stand-trial (last visited 27 November 2011).

11 See ECCC, [Corrected 1] Immediate Appeal Against Trial Chamber Decision to Order the Release of Accused Ieng Thirith, Co-Prosecutors, Case File No. 002/19-9-2007/ECCC/TC, 18 November 2011, available at: http://www.eccc.gov.kh/en/document/court/corrected-1-immediate-appeal-against-trial-chamber-decision-order-release-accused-ien (last visited 5 December 2011).

12 The investigation in Cases 003 and 004 have been controversial and have involved several exchanges between the Co-Investigating Judges and the International Co-Prosecutor. See statements by the parties available on the ECCC website at: http://www.eccc.gov.kh/en/case/topic/286 and http://www.eccc.gov.kh/en/case/topic/98 (last visited 27 November 2011). The international Co-Investigating Judge resigned on 9 October 2011. See ECCC Public Affairs, ‘Press Release by the International Co-Investigating Judge’, 10 October 2011, available at: http://www.eccc.gov.kh/en/articles/statement-international-co-investigating-judge (last visited 27 November 2011).

13 Civil parties have since been included in other criminal tribunals, including the International Criminal Court (ICC) and the Special Tribunal for Lebanon, although the full extent of participatory rights differs from court to court. See, e.g., ICC, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06-1119, ‘Decision on Victims’ Participation: Public’, paras. 93–95 (Trial Chamber I), 18 January, 2008; Rome Statute, Art. 68; ICC, Rules of Procedure and Evidence, Rule 85; Statute of the Special Tribunal for Lebanon, Art. 17; Special Tribunal for Lebanon, Rules of Procedure and Evidence, 10 November 2010, Rule 86.

14 See Thierry Cruvellier, ‘Cambodia: reflections on the Duch trial’, in Crimes of War Project, 26 July 2010, available at: http://www.crimesofwar.org/commentary/regions/cambodia-reflections-on-the-duch-trial/ (last visited 1 September 2011).

Ibid.

16 Curran, Vivian Grosswald, ‘Globalization, legal transnationalization and crimes against humanity: the Lipietz case’, in American Journal of Comparative Law, Vol. 56, Spring 2008, p. 376CrossRefGoogle Scholar.

17 See Trumbull IV, Charles P., ‘The victims of victim participation in international criminal proceedings’, in Michigan Journal of International Law, Vol. 29, Summer 2008, p. 778Google Scholar.

18 Neither of the two major bibliographies on war crimes trials immediately following World War II contains any references to studies of victims and witnesses. See Tutorow, Norman E. (ed.), War Crimes, War Criminals, and War Crimes Trials: An Annotated Bibliography and Source Book, Greenwood Press, New York, 1986Google Scholar; Neumann, Inge S. (ed.), European War Crimes Trials: A Bibliography, Greenwood Press, New York, 1951Google Scholar.

19 The Allied Forces were more interested in vilifying the German and Japanese leaders in the eyes of their own people than in creating a forum for victims to tell their stories. See, for example, Taylor, Telford, The Anatomy of the Nuremberg Trials: A Personal Memoir, Alfred A. Knopf, New York, 1992Google Scholar.

20 See Wieviorka, Annette, L’Ére du témoin, Plon, Paris, 1998Google Scholar.

21 Ibid., p. 97.

Ibid.
Ibid.

23 Arendt, Hannah, Eichmann in Jerusalem: A Report on the Banality of Evil, Penguin Books, New York, 1977, pp. 89Google Scholar.

24 Ibid., p. 261.

Ibid.

25 See Thierry Cruvellier, ‘Civil party participation and representation: a few other experiments at a glimpse’, International Center for Transitional Justice, 2009, which provides an overview of civil party participation in domestic war crimes proceedings in several countries.

26 Tigar, Michael E., Casey, Susan C., Giordani, Isabelle, and Mardemootoo, Sivakumaren, ‘Paul Touvier and the crime against humanity’, in Texas International Law Journal, Vol. 30, 1995, p. 295Google Scholar (discussing the history of the Barbie case and its influence on Touvier's subsequent trial).

27 Ibid., p. 299.

Ibid.

28 Harris, Whitney R., ‘A world of peace and justice under the rule of law: from Nuremberg to the International Criminal Court’, in Washington University Global Studies Law Review, Vol. 6, 2007, pp. 689 and 697Google Scholar. See also Weisberg, Richard H., ‘The risks of adjudicating Vichy’, in Roger Williams University Law Review, Vol. 5, 1999, p. 127Google Scholar.

29 Davis, Benjamin G., ‘Refluat stercus: a citizen's view of criminal prosecution in U.S. domestic courts of high-level U.S. civilian authority and military generals for torture and cruel, inhuman or degrading treatment’, in Saint John's Journal of Legal Commentary, Vol. 23, 2008, p. 544Google Scholar.

30 See V. Grosswald Curran, above note 16, p. 373.

31 See Nancy Wood, ‘The Papon trial in an “era of testimony” ’, in Richard J. Golsan (ed.), The Papon Affair: Memory and Justice on Trial, Routledge, New York, 2000, p. 97.

32 See C. P. Trumbull IV, above note 17, p. 778; and Stover, Eric, The Witnesses: War Crimes and the Promise of Justice in The Hague, University of Pennsylvania Press, Philadelphia, PA, 2005, pp. 1732Google Scholar.

33 In common law countries, New Zealand adopted the first victim's compensation law in 1963, followed by England in 1964. See Doerner, William and Lab, Steven, Victimology, 2nd edition, Anderson, Cincinnati, OH, 1988, pGoogle Scholar. 18. See also Shapland, Joanna, Willmore, Jon, and Duff, Peter, Victims in the Criminal Justice System, Gower, Aldershot, Hampshire, 1985, p. 175Google Scholar.

34 See, e.g., Herman, Judith Lewis, Trauma and Recovery: The Aftermath of Violence – From Domestic Abuse to Political Terror, Basic Books, New York, 1992.Google Scholar

35 See the Crime Control Act of 1990 (42 U.S.C. §§ 10606–10607) and the Victims' Rights Clarification Act of 1977 (18 U.S.C. § 3510).

36 In 2004, Congress passed the Crime Victims' Rights Act (18 U.S.C. § 3771), which guaranteed victims the right to ‘reasonably be heard at any public proceeding in the district court involving release, plea, sentencing, or parole proceedings’.

37 Bradley, Craig (ed.), Criminal Procedure: A Worldwide Study, 2nd edition, Carolina Academic Press, Durham, NC, 2007, p. 45Google Scholar.

38 See Council of Europe, Council Framework Decision of 15 March 2001 on the Standing of Victims of Crime in Criminal Proceedings (2001/220/JHA) OJ, L82, 22 March 2001, and Commission of the European Communities, Council Directive on Compensation to Crime Victims, European Commission, Brussels, 2002, p. 562Google Scholar.

39 United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, UN General Assembly Resolution 40/34 of 29 November 1985, available at: http://www.un.org/documents/ga/res/40/a40r034.htm (last visited 25 August 2010).

40 Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, adopted by UN General Assembly Resolution 60/147 of 16 December 2005.

41 See Theo van Boven, ‘The position of the victim in the Statute of the International Criminal Court’, in H. von Hebel, J. G. Lammers, and J. Schukking (eds), Reflections on the International Criminal Court: Essays in Memory of Adriaan Bos, T.M.C. Asser Press, The Hague, 1999, p. 81.

42 Aldana-Pindell, Raquel, ‘In vindication of justiciable victims’ rights to truth and justice for state-sponsored crimes’, in Vanderbilt Journal of Transnational Law, Vol. 35, No. 5, 2002, pp. 14191422, 14341436Google Scholar.

43 Ibid., pp. 1419–1422.

Ibid.

44 C. P. Trumbull IV, above note 17, p. 788.

45 Most victims participate in court proceedings through legal representatives, but in the ICC's first trial three victim-participants addressed the Court directly. See Eric Stover, Camille Crittenden, Alexa Koenig, Victor Peskin, and Tracey Gurd, ‘The impact of the Rome Statute system on victims and affected communities’, paper delivered at the Review Conference of the Rome Statute, International Criminal Court, Kampala, Uganda, 30 May 2010 (RC/ST/V/INF.4).

46 Rome Statute of the International Criminal Court, 17 July 1998, A/CONF.183/9, Art. 68.

47 See ICC, Report of the Court on the Strategy in Relation to Victims, ICC-ASP/8/45, 10 November 2009, Introduction, para. 3.

48 For an overview of the arguments commonly put for and against victim participation in international criminal tribunals, see C. P. Trumbull IV, above note 17, pp. 802–805.

49 Ibid., p. 811; for arguments against victim participation in international trials see pp. 805–818.

Ibid.

50 Agreement between the United Nations and the Royal Government of Cambodia concerning the prosecution under Cambodian Law of crimes committed during the period of Democratic Kampuchea, 17 March 2003, approved by General Assembly Resolution 57/228 B, 22 May 2003, Annex.

51 See Bair, James P., ‘From the numbers who died to those who survived: victim participation in the Extraordinary Chambers in the Courts of Cambodia’, in Harvard Law Review, Vol. 31, 2009, pp. 507508Google Scholar, 520; see also ECCC, Internal Rules, above note 4, Rules 23(1), 23(3), 23(7), 23(8).

52 See Jenia Iontcheva Turner, ‘Decision on civil party participation in provisional detention appeals’, in David J. Bederman (ed.), ‘International decision’, in American Journal of International Law, Vol. 103, No. 1, 2009, pp. 116–118; see also ECCC, Internal Rules, above note 4, Rules 23(1), 23(2), 23(3), 23(4), 23(5), 23(6).

53 ECCC, Internal Rules, above note 4, Rule 23(1).

54 Ibid., Rules 49(2), 49(4).

Ibid.

55 At the time of the first trial, civil party applications were made to the Office of the Co-Investigating Judges (OCIJ) or the Trial Chamber and not to the Co-Prosecutors: see ECCC, Internal Rules, above note 4, Rules 23(3), 23(4). Since February 2010, civil party applications have been received by OCIJ only; see ECCC, Internal Rules (revision 5), as amended 9 February 2010, Rule 23 bis (2), Rule 23 bis (3). Situations under investigation are defined by facts presented by the Co-Prosecutors in Introductory or Supplementary Submissions: see ECCC, Internal Rules, above note 4, Rules 53(1), 55(2).

56 See for example, ECCC, Case File No. 001/18-7-2007/ECCC/TC, above note 3, paras. 639–649.

57 ECCC, Internal Rules, above note 4, Rule 12. Since February 2010, the Victims Unit has been renamed the Victims Support Section: see ECCC, Internal Rules (revision 5), above note 55, Rule 12.

58 Five Cambodian groups – the Documentation Center of Cambodia (DC-CAM); the Cambodia Human Rights and Development Organization (ADHOC); the Khmer Institute for Democracy (KID); the Center for Social Development/Center for Justice and Reconciliation (CSD/CJR), whose focus would later be on the second Khmer Rouge case, Case 002; and the Khmer Kampuchea Krom Human Rights Association (KKKHRA) – took the lead in distributing and helping applicants fill in the forms. Two legal aid groups – the Cambodian Defender Project (CDP) and Legal Aid of Cambodia (LAC) – headed up the task of retaining lawyers for the civil parties, while the Cambodian Human Rights Action Committee (CHRAC), an umbrella organization for local human rights and aid groups, developed a database to track victim complaints and civil party applications.

59 The German Development Service (DED), Civil Peace Services (ZFD), and the French and the British embassies, for example, played an essential role in supporting these legal assistance projects. See DED/GIZ, Projects, Civil Peace Service, available at: http://kambodscha.ded.de/en/projects/civil-peace-service.html; ambassade de France à Phnom Penh, la France au Cambodge, ‘Soutien de la France à l'association “Avocats sans frontières” ’, available at: http://www.ambafrance-kh.org/spip.php?article1247; and British Embassy in Phnom Penh, Working with Cambodia, Khmer Rouge Tribunal, available at: http://ukincambodia.fco.gov.uk/en/about-us/working-with-cambodia/khmer-rouge-tribunal/ (all websites last visited 7 September 2011).

60 Practice direction, including the application form, can be downloaded from the ECCC website, available at: http://www.eccc.gov.kh/sites/default/files/legal-documents/PD_Victims_Participation_rev1_En.pdf (last visited 6 September 2011).

61 See ECCC, Public Affairs, ‘ECCC issues media alert on signing ceremony of German contribution’, 6 November 2008.

62 TPO also offers individual and group therapy sessions to civil parties: see ECCC Court Report, Issue 12, Phnom Penh, February 2010, p. 10.

63 One of the twenty-two civil parties was in the hospital and unable to receive visitors.

64 Interview, 24 November 2009.

65 Interview, 26 November 2009.

66 See ECCC, Transcript of Trial Proceedings – Kaing Guek Eav ‘Duch’, Case File No. 001/18-07-2007-ECCCC/TC, 8 July 2009, Trial Day 41, pp. 42–103, available at: http://www.eccc.gov.kh/en/documents/court/transcript-proceedings-%E2%80%9Cduch%E2%80%9D-trial-trial-day-41 (last visited 7 July 2011).

67 Interview with Chin Met, 14 November 2009.

68 See Trial Day 41, above note 66, p. 93.

69 See Center for Social Development, ‘CSD discovers only woman survivor of Tuol Sleng’, Press Release, 1 August 2007.

70 Interview with Chin Met, above note 67.

71 Quoted in George Parker, ‘Trials’, in New Yorker, 5 January 2004, p. 5.

72 The vast majority of respondents in two, earlier, studies of ICTY victim-witnesses also said that they could never forgive those responsible for their own suffering or the suffering of family members. See E. Stover, above note 32, pp. 75–76. See also Gabriela Mischkowski and Gorana Mlinarevic, “… And That it Does Not Happen to Anyone Anywhere in the World”: The Trouble with Rape Trials – Views of Witnesses, Prosecutors, and Judges on Prosecuting Sexualised Violence during the War in the Former Yugoslavia, Medica Mondiale, December 2009, p. 53, available at: http://www.medicamondiale.org/fileadmin/content/07_Infothek/Gerechtigkeit/medica_mondiale_Zeuginnenstudie_englisch_december_2009.pdf (last visited 19 December 2011).

73 Interview with Ou Savrith, 24 November 2009.

74 Interview, 17 November 2009.

75 See Joyce, Christopher and Stover, Eric, Witnesses from the Grave: The Stories Bones Tell, Little, Brown & Company, Boston, MA, 1991Google Scholar.

76 Mollica, Richard F., Healing Invisible Wounds: Paths to Hope and Recovery in a Violent World, Vanderbilt University Press, Nashville, TN, 2006, p. 78Google Scholar.

77 Interview with Martine Lefeuvre, 25 November 2009.

78 See Trial Day 41, above note 66, p. 66.

79 Ibid., p. 57.

Ibid.

80 Interview with Bou Meng, 15 November 2009.

81 See ECCC, Transcript of Trial Proceedings – Kaing Guek Eav ‘Duch’, Case File No. 001/18-07-2007-ECCCC/TC, 30 June 2009, Trial Day 36, pp. 66–67, available at: http://www.eccc.gov.kh/en/documents/court/transcript-proceedings-%E2%80%9Cduch%E2%80%9D-trial-trial-day-36 (last visited 7 July 2011).

82 In addition to non-Khmer Rouge, S-21 held a large number, slightly over 78%, of those Khmer Rouge cadres who were accused of being spies or traitors. They came from either a Democratic Kampuchea government office or a military unit. See ECCC, Public Information by the Co-Prosecutors Pursuant to Rule 54 Concerning their Rule 66 Final Submission Regarding Kaing Guek Eav alias ‘Duch’, OCP, 18 July 2008, Criminal Case File 002/14-08-2006/ECCC/OCP, para. 81, available at: http://www.eccc.gov.kh/sites/default/files/documents/courtdoc/Rule_54_Public_Information_re_Final_Submission.pdf (last visited 8 September 2011). For detailed explanations of S-21 prisoners, see Chandler, David, Voices from S-21: Terror and History in Pol Pot's Secret Prison, University of California Press, Berkeley, CA, 1999, pp. 4176Google Scholar.

83 See ECCC, Transcript of Trial Proceedings – Kaing Guek Eav ‘Duch’, Case File No. 001/18-07-2007-ECCCC/TC, 24 August 2009, Trial Day 63, pp. 42–43, available at: http://www.eccc.gov.kh/en/documents/court/transcript-proceedings-%E2%80%9Cduch%E2%80%9D-trial-trial-day-63 (last visited 7 July 2011).

84 See Levi, Primo, If This is a Man – The Truce, Penguin Books, London, 1979Google Scholar.

85 Dori Laub, ‘An event without a witness: truth, testimony and survival’, in Shoshana Felman and Dori Laub, Testimony: Crisis of Witnessing in Literature, Psychoanalysis, and History, Routledge, London, 1992, p. 78.

86 Interview with Chum Sirath, 17 November 2009.

87 Interview with Martine Lefeuvre, above note 77.

Ibid.

89 Interview with Antonya Tioulong, 24 November 2009.

90 Interview with Chum Mey, 17 November 2009.

91 Michelle Staggs Kelsall et al., Lessons Learned from the Duch Trial. A Comprehensive Review of the First Case before the Extraordinary Chambers in the Courts of Cambodia, Asian International Justice Initiative's KRT Monitoring Group, December 2009, p. 28, available at: http://www.ocf.berkeley.edu/~changmin/documents/Lessons%20Learned%20from%20the%20Duch%20Trial_MRSK_FINAL.pdf (last visited 19 December 2011).

92 It quickly became clear that civil party lawyers, many with nominal funding or operating pro bono, had extremely limited resources. This does not excuse but may help to explain their lack of co-ordination and preparation.

93 KRT Trial Monitor, Reports No. 7 (week ending 31 May 2009), No. 9 (week ending 21 June 2009), and No. 21 (week ending 21 September 2009).

94 ECCC, Decision on Civil Party Co-Lawyers’ Joint Request for a Ruling on the Standing of Civil Party Lawyers to Make Submissions on Sentencing and Directions Concerning the Questioning of the Accused, Experts and Witnesses Testifying on Character, Case File 001/18-07-2007/ECCC/TC (Trial Chamber), 9 October 2009, para. 25, available at: http://www.eccc.gov.kh/sites/default/files/documents/courtdoc/E72_3_EN.pdf (last visited 6 September 2011).

95 See M. S. Kelsall et al., above note 91, p. 32.

96 Ibid., pp. 29–30.

Ibid.

97 ECCC, Transcript of Trial Proceedings – Kaing Guek Eav ‘Duch’, Case File No. 001/18-07-2007-ECCCC/TC, 6 July 2009, Trial Day 39, pp. 82–87, available at: http://www.eccc.gov.kh/en/documents/court/transcript-proceedings-%E2%80%9Cduch%E2%80%9D-trial-trial-day-39 (last visited 6 September 2011).

98 See McNally, Robert J., Remembering Trauma, Harvard University Press, Cambridge, MA, 2003, p. 106Google Scholar.

99 Multiple studies suggest that the psychological effects of traumatic exposure during the Khmer Rouge periods have been profound, including a high prevalence of post-traumatic stress disorder (PTSD), somatic symptoms, and disability among the survivors. See Sonis, Jeffrey, et al. , ‘Probable posttraumatic stress disorder and disability in Cambodia: associations with perceived justice, desire for revenge, and attitudes towards the Khmer Rouge trials’, in Journal of the American Medical Association, Vol. 302, No. 5, 2009, p. 527CrossRefGoogle Scholar.

100 Herman, Judith Lewis, ‘Justice from the victims’ perspective’, in Violence Against Women, Vol. 11, No. 5, 2005, p. 574CrossRefGoogle ScholarPubMed.

101 Mendeloff, David, ‘Trauma and vengeance: assessing the psychological and emotional effects of post-conflict justice’, in Human Rights Quarterly, Vol. 31, No. 3, 2009, p. 593CrossRefGoogle Scholar.

102 See E. Stover, above note 32, pp. 74–75.

103 Interview with Ouk Neary, 25 November 2009.

104 Interview with Ou Savrith, above note 73.

105 Interview with Martine Lefeuvre, above note 77.

106 Interview, 15 November 2009.

107 Interview, 13 November 2009.

108 See Trial Day 36, above note 81, p. 12.

109 Ibid., pp. 12–14.

Ibid.

110 Interview with Robert Hamill, conducted via telephone, 25 November 2009.

111 Interview with Ouk Neary, above note 103.

112 See ECCC, Transcript of Trial Proceedings – Kaing Guek Eav ‘Duch’, Case File No. 001/18-07-2007-ECCCC/TC, 31 March 2009, Trial Day 2, pp. 67–68, available at: http://www.eccc.gov.kh/en/documents/court/transcript-proceedings-%E2%80%9Cduch%E2%80%9D-trial-trial-day-2 (last visited 7 July 2011).

113 Ibid., p. 69.

Ibid.

114 Interview with Ouk Neary, above note 103.

115 See ECCC, Transcript of Trial Proceedings – Kaing Guek Eav ‘Duch’, Case File No. 001/18-07-2007-ECCCC/TC, 20 August 2009, Trial Day 62, p. 63, available at: http://www.eccc.gov.kh/en/documents/court/transcript-proceedings-%E2%80%9Cduch%E2%80%9D-trial-trial-day-62 (last visited 7 July 2011).

116 Interview with Hav Sophea, 13 November 2009.

117 Interview with Antonya Tioulong, above note 89.

118 Interview with Chum Sirath, above note 86.

119 See, e.g., Fletcher, Laurel E. and Weinstein, Harvey M., ‘Violence and social repair: rethinking the contribution of justice to reconciliation’, in Human Rights Quarterly, Vol. 24 , No. 3, 2002, pp. 592593CrossRefGoogle Scholar.

120 Ibid., pp. 593–594.

Ibid.

121 Interview, 24 November 2009.

122 See E. Stover, above note 32, pp. 87–90; G. Mischkowski and G. Mlinarevic, above note 72, p. 59.

123 Interview with Bou Meng, above note 80.

124 Interview with Neth Phally, above note 2.

125 Interview with Hav Sophea, above note 116.

126 Interview with Chum Neou, 12 November 2009.

127 Interview with Chin Met, above note 67.

128 Interview with Chum Mey, above note 90.

129 R. J. McNally, above note 98, pp. 98–99.

130 See, e.g., Thibaut, John W. and Walker, Laurens, Procedural Justice: A Psychological Analysis, Lawrence Erlbaum Associates, Inc., Hillsdale, NJ, 1975Google Scholar; Lind, Edgar Allan and Tyler, Tom R., The Social Psychology of Procedural Justice, Plenum, New York, 1988CrossRefGoogle Scholar; Lind, Edgar Allan, Kanfer, Ruth, and Christopher Earley, P., ‘Voice, control, and procedural justice’, in Journal of Personality and Social Psychology, Vol. 59, No. 5, 1990, pp. 952959CrossRefGoogle Scholar; Maccoun, Robert J., ‘Voice, control, and belonging: the double-edged sword of procedural fairness’, in Annual Review of Law and Social Science, Vol. 1, 2005, pp. 171201CrossRefGoogle Scholar; De Cremer, David and Sedlikides, Constantine, ‘Self-uncertainty and responsiveness to procedural justice’, in Journal of Experimental Social Psychology, Vol. 41, 2005, pp. 157173CrossRefGoogle Scholar.

131 Tyler, Tom R., ‘What is procedural justice? Criteria used by citizens to assess the fairness of legal procedures’, in Law and Society Review, Vol. 22, No. 1, 1988, p. 129CrossRefGoogle Scholar.

132 See Barber, Bernard, The Logic and Limits of Trust, Rutgers University Press, New Brunswick, NJ, 1983Google Scholar; and Tom R. Tyler, ‘When does procedural justice matter in organizational settings?’, in Roy J. Lewicki, Blair H. Sheppard, and Max H. Bazerman (eds), Research on Negotiation in Organizations, Vol. 1, JAI Press, Greenwich, CT, Vol. 1, pp. 7–23.

133 See ‘Letter of civil parties in Case 001 to the President of the Trial Chamber’, available at: http://www.eccc.gov.kh/sites/default/files/documents/courtdoc/E166.1_FR.pdf (last visited 7 September 2011). The letter was in response to the Trial Chamber's oral decisions on civil party lawyers to make submissions on sentencing and questioning of the accused, experts, and witnesses testifying on character: see ECCC, Transcript of Trial Proceedings – Kaing Guek Eav ‘Duch’, Case File No. 001/18-07-2007-ECCCC/TC, 27 August 2009, Trial Day 66, pp. 42 and 74FN, available at: http://www.eccc.gov.kh/sites/default/files/documents/courtdoc/E1_70.1_TR001_20090827_Final_EN_Pub.pdf (last visited 7 September 2011). See also KRT Trial Monitor, Report No. 20 (week ending 4 September 2009), p. 2.

134 Decision on Civil Party Co-Lawyers' Joint Request, above note 94, para 25.

135 Personal interview conducted by authors on 24 November 2009.

136 Interview with Neth Phally, above note 2.

137 Interview, 22 November 2009.

138 Interview with Robert Hamill, above note 110.

139 Interview, 17 November 2009.

140 Interview with Antonya Tioulong, above note 89.

141 See de Greiff, Pablo (ed.), The Handbook on Reparations, Oxford University Press, New York, 2006CrossRefGoogle Scholar.

142 See, e.g., Rawls, John, A Theory of Justice, Harvard University Press, Cambridge, MA, 1971Google Scholar.

143 See Naomi Roht-Arriaza, ‘Reparations in the aftermath of repression and mass violence’, in Eric Stover and Harvey M. Weinstein (eds), My Neighbor, My Enemy: Justice and Community in the Aftermath of Mass Atrocity, Cambridge University Press, Cambridge, 2004, pp. 121–139.

144 Article 14 of the Code of Criminal Procedure for the Kingdom of Cambodia provides that ‘An injury can be compensated by paying damages, by giving back to the victim the property that has been lost or by restoring damaged or destroyed property to its original state’.

145 Pham, Phuong, Vinck, Patrick, Balthazard, Mychelle, Hean, Sokhom, and Stover, Eric, So We Will Never Forget: A Population-based Survey on Attitudes about Social Reconstruction and the Extraordinary Chambers in the Courts of Cambodia, Human Rights Center, University of California, Berkeley, CA, January 2009, pp. 4344Google Scholar.

146 ECCC, Internal Rules, above note 4, Rule 23(11).

147 Ibid., Rule 23 (12).

Ibid.

148 See ECCC, Case File 001/18-07-2007/ECCC/TC, Civil Parties Co-Lawyers' Joint Submission on Reparations (Trial Chamber) 14 September 2009, para. 11, available at: http://www.eccc.gov.kh/en/documents/court/civil-parties-co-lawyers-joint-submission-reparations (last visited 7 July 2011).

149 Interview, 17 November 2009.

150 See E. Stover, above note 32, p. 112.

151 Interview with Hav Sophea, above note 116.

152 Interview with Robert Hamill, above note 110.

153 Interview with Ouk Neary, above note 103.

154 Ibid.

Ibid.

155 Interview with Martine Lefeuvre, above note 77.

156 Ibid.

Ibid.

157 Interview with Chum Sirath, above note 86.

158 More information about the Ksem Ksan Association can be found at: http://ksemksan.org/index.php?nav=home&lang=en (last visited 7 July 2011).

159 One of the authors – Mychelle Balthazard – attended the verdict.

160 See Case 001, Judgment, above note 3, para. 568.

161 Ibid., para. 647.

Ibid.

162 Ibid., para. 648.

Ibid.

163 Ibid., para. 649.

Ibid.

164 Ibid., paras. 667–675, 683.

Ibid.

165 Ibid., paras. 652–658.

Ibid.

166 Ibid., paras. 679–681. The prosecution had asked for a forty-year sentence after taking into consideration mitigating factors and Duch's earlier illegal detention.

Ibid.

167 See Statement of the Co-Prosecutors, Extraordinary Chambers in the Courts of Cambodia, 16 August 2010, available at: http://www.eccc.gov.kh/en/articles/statement-co-prosecutors (last visited 7 July 2011).

168 See ECCC, Notice of Appeal, by the Co-Lawyers for Kaing Guek Eav Alias Duch against the Trial Chamber Judgment of 26 July 2010, 24 August 2010, 001/18-07-2007-ECCC/TC, available at: http://www.eccc.gov.kh/en/document/court/notice-appeal-co-lawyers-kaing-guek-eav-alias-duch-against-trial-chamber-judgement-26 (last visited 7 September 2011). See also Associated Press, ‘Former Khmer Rouge chief appeals against conviction’, 15 August 2010.

169 See ECCC, Group 1 – Civil parties' co-lawyers immediate appeal of civil party status determinations from the final judgment, 24 August 2010, 001/18-07-2007-ECCC/SC, available at: http://www.eccc.gov.kh/sites/default/files/documents/courtdoc/E188_10_EN_CPG1.pdf; ECCC, Co-lawyers for civil parties group 2: Appeal against rejection of civil party applicants in the judgment, 22 October 2010, 001/18-07-2007-ECCC/SC, available at: http://www.eccc.gov.kh/sites/default/files/documents/courtdoc/F11_EN.pdf (last visited 7 September 2011); ECCC, Appeal of the Co-Lawyers for the Group 3 Civil Parties against the Judgment of 26 July 2010, 5 October 2010, 001/18-07-2007-ECCC/OCIJ, available at: http://www.eccc.gov.kh/sites/default/files/documents/courtdoc/F9_EN.pdf (last visited 7 September 2011). The appeal hearings against the Trial Chamber's judgment were held on 28–30 March 2011. See ECCC, Transcripts of Appeal Proceedings – Kaing Guek Eav ‘Duch’, 001/18-07-2007-ECCC/SC, available at: http://www.eccc.gov.kh/en/indicted-person/66/transcript. At the time of writing, the Supreme Court Chamber's decisions on the appeals were still pending.

170 See ECCC, Case File No. 001/18-07-2007-ECCC/SC, Order Scheduling Pronouncement of Appeal Judgment (Supreme Court) 17 November 2011, available at: http://www.eccc.gov.kh/en/document/court/order-scheduling-pronouncement-appeal-judgment (last visited 27 November 2011).

171 See, e.g., Guy de Launey, ‘Tears and disbelief at Duch verdict’, BBC News, 26 July 2010, available at: http://www.bbc.co.uk/news/world-asia-pacific-10763409 (last visited 20 December 2011).

172 Ibid. See also, e.g., Robin McDowell, ‘For most Cambodians, “justice” has little meaning’, in Associated Press, 8 August 2010, available at: http://www.guardian.co.uk/world/feedarticle/9211885 (last visited 20 December 2011).

Ibid.

173 Authors' personal communication with staff members at the TPO, 6 September 2010.

174 See Transcultural Psychosocial Organization, Report on TPO's After-Verdict Intervention with Case 001 Civil Parties, 27 July 2010, pp. 2–3.

175 As of 21 November 2011, 3,866 people were recognized as civil parties in Case 002. Earlier, the Office of the Co-Investigating Judges had rejected 1,846 civil party applications – nearly half of the 3,988 applications in the case. See, ECCC Court Report, Issue 29, Phnom Penh, September 2010, p. 4. On 24 June 2011, the Pre-Trial Chamber granted civil party status to 1,728 Case 002 civil party applicants who were previously rejected as inadmissible. See ECCC Public Affairs, ‘Pre-Trial Chamber overturns previous rejections of 98% of appealing civil party applicants in Case 002’, Press Release, 24 June 2011, available at: http://www.eccc.gov.kh/en/articles/pre-trial-chamber-overturns-previous-rejection-98-appealing-civil-party-applicants-case-002 (last visited 20 December 2011). The Pre-Trial Chamber's decision can be downloaded at: http://www.eccc.gov.kh/en/document/court/decision-appeals-against-orders-co-investigating-judges-admissibility-civil-party-app (last visited 20 December 2011). See also Fédération Internationale des Droits de l'Homme–ADHOC–the Center for Justice and Accountability, ‘The Extraordinary Chambers in the Courts of Cambodia (ECCC). Opening of the trial in Case 002: expectations of victims from here and abroad’, Press Kit, 21 November 2011, p. 5, available at: http://www.fidh.org/IMG/pdf/dpcambodgedec2011_final.pdf (last visited 20 December 2011).

176 See E. Stover, above note 32, pp. 131–136.

177 Interview with Chum Mey, 6 August 2010.

178 Interview with Martine Lefeuvre, 28 July 2010.

179 May Titthara and Sebastian Strangio, ‘A mixed reaction to judgment day: the trial ends, but not the debate’, in Phnom Penh Post, 27 July 2010, Verdict section, p. 4.

180 Interview with Antonya Tioulong, 31 July 2010.

181 Interview with Chum Sirath, 10 August 2010.

182 Interview with Ou Savrith, conducted via telephone, 24 August 2010.

183 Interview, 27 July 2010.

184 Interview with Ou Savrith, above note 182.

185 The ICC has grappled with this issue. For general information about how victims can apply to participate in ICC proceedings, see Office of the Public Counsel for Victims, International Criminal Court, Representing Victims Before the International Criminal Court: A Manual for Legal Representatives, Ipskamp Drukkers B.V, Enschede, 2010.

186 ECCC, Internal Rules (revision 5), above note 55, Rule 12 ter, Rule 23 bis, Rule 23 ter (1).

187 Ibid., Rule 23 bis (1).

Ibid.

188 Ibid., Rule 12 ter, Rule 23 bis (2), Rule 23 bis (3).

Ibid.

189 This finding has been confirmed in numerous studies. For a general review of these studies, see Wemmers, Jo-Anne, ‘Victims’ rights and the International Criminal Court: perceptions within the court regarding the victims’ right to participate’, in Leiden Journal of International Law, Vol. 23, 2010, p. 641CrossRefGoogle Scholar.

190 See ECCC, Case No. 003/07-09-2009-ECCC/OCIJ (PEC 02), Public (Redacted Version): Considerations of the Pre-Trial Chamber Regarding the Appeal Against Order on the Admissibility of Civil Party Applicant Robert Hamill, Opinion of Judges Lahuis and Downing, para. 7, available at: http://www.eccc.gov.kh/en/document/court/considerations-pre-trial-chamber-regarding-appeal-against-order-admissibility-civil-p (last visited 2 December 2011.

191 International Criminal Court, Report of the Court on the Strategy in Relation to Victims (‘ICC Strategy in Relation to Victims’), ICC-ASP/8/45, 10 November 2009, para. 46, emphasis added.

192 Victims' Rights Working Group, ‘The impact of the Rome Statute on victims and affected communities’, 22 March 2010, p. 15, available at: http://www.vrwg.org/VRWG_DOC/2010_Apr_VRWG_Impact_of_ICC_on_victims.pdf (last visited 4 September 2011).

193 See Redress, ‘Victims’ central role in fulfilling the ICC's mandate’, November 2009, p. 6, available at: http://www.redress.org/downloads/publications/ASP%208%20Paper%20FINAL%20Nov%202009.pdf (last visited 4 September 2011).

194 In our view, staff in a few of these organizations also did a disservice to civil parties by encouraging them to call for individual reparations when it was clear that the ECCC had already decided that it would only rule on ‘collective and moral reparations’. Our interviews suggest that such encouragement created unrealistic expectations on the part of some civil parties.

195 Patricia M. Wald, ‘Tyrants on trial: keeping order in the courtroom’, Open Society Institute, September 2009, available at: http://www.soros.org/initiatives/justice/articles_publications/publications/tyrants_20090911/tyrants_20090911.pdf (last visited 20 December 2011).

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