Wednesday, September 7, 2011

Participation as Reparations

(My thanks to IntLawGrrls for the opportunity to contribute this guest post)

Amid a frenzy of criticism, the Extraordinary Chambers in the Courts of Cambodia held initial hearings for its second case on June 27 of this year.
Chief among the criticisms has been a general dissatisfaction with the selection of defendants called to stand trial for the atrocities perpetrated during the reign of the Khmer Rouge. Recent media coverage reflects this preoccupation with the perpetrators. It focuses heavily on the accused – which perpetrators should be charged, and in what order.
This growing fixation with the defendants comes at the cost of a victim-centered approach, as the global community’s preoccupation with the defendants erodes interest in the victims.
However, as the ECCC presses forward, some scholars and advocates have taken a mindful step back to refocus and reconsider the tribunal’s purpose. I was honored to join one such group of scholars as I co-authored, with my former professor and mentor, IntLawGrrl Jaya Ramji-Nogales, a chapter titled “Participation as Reparations: The ECCC and Healing in Cambodia." Our chapter has been published in the recently release volume co-edited by IntLawGrrl Beth Van Schaack, entitled Cambodia's Hidden Scars: Trauma Psychology in the Wake of the Khmer Rouge.
The chapter considers whether participation in international criminal tribunals can be reparative for the victims of mass atrocities.
Specifically, it considers four levels of engagement with the ECCC that are currently available to victims:
► First, victims may testify during the trials.
Unfortunately, in the Court’s first case, witnesses were forced to curtail their testimony to the Court’s evidentiary needs. As a result, instead of providing an emotional release for witnesses, testifying became a technical and rigid experience.
► Second, victims may enroll as Civil Parties or file a victim’s complaint with the Court.
Unfortunately, this avenue for participation is also riddled with flaws. As an initial matter, not all Cambodians qualify for Civil Party status. The legitimacy of the Victims Unit was also compromised by the appointment of a non-Cambodian to head the Unit. Adding a further constraint, the Court’s internal rules substantially limit its power to grant reparations.
► A third avenue for participation is available to Cambodians – they are welcome to observe the Court’s proceedings.
Again, however, this means of participation was not universally available. The Court is geographically inaccessible to many Cambodians, especially those living outside Phnom Penh. Even still, observing the proceedings falls short of reparations for those able to visit the Court. Observing the trials was not only non-interactive, but also re-traumatizing for many.
► Finally, Cambodians can participate in community dialogues about the proceedings.
These dialogues hold the greatest promise for reparations. The Documentation Center of Cambodia (DC-Cam) regularly invites Cambodians to discuss their experiences with the Khmer Rouge. These dialogues allow victims to shape a healing process that best addresses their individual suffering. The dialogues also provide an opportunity to allay the lingering anxiety of former Khmer Rouge cadre, who fear prosecution in the ECCC.
Accounting for the limitations of each mode of participation, it is clear that greater victim involvement will be instrumental if the tribunal hopes to offer reparations through participation. This chapter exists within a broader advocacy effort to refocus international criminal proceedings. Through a more individual-centered approach, the ECCC, and international courts to come, may achieve meaningful reparations for the populations they purport to serve.

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