Extraordinary Chambers in the Courts of Cambodia:
Recommendations to address victims and witnesses issues in the Internal Rules effectively
Recommendations to address victims and witnesses issues in the Internal Rules effectively
Introduction
On 20-25 November 2007, the judges of the Extraordinary Chambers in the Courts of Cambodia (Extraordinary Chambers) held their first plenary session to consider its Draft Internal Rules (Draft Rules).(1) During that session, Amnesty International issued a statement urging the judges to extend their consideration of the Draft Rules allowing more time for public comments and expert consultations.(2) The organization, therefore, welcomes the decision of the judges to defer adoption of this very important document so that more consideration can be give to the full range of issues. At the same time, Amnesty International notes that consideration of the Rules of the Extraordinary Chamber should not delay its work and therefore calls on the judges to prioritize their work on the Rules to ensure that they can be as adopted as expeditiously as possible.
This paper sets out Amnesty International’s serious concerns on certain aspects of the Draft Rules which relate to victims and witnesses. The organization urges the judges to consider and adopt a number of concrete recommendations discussed below to ensure that the Extraordinary Chambers attains the highest standards of services and treatment for victims and witnesses who have been most directly affected by the horrific crimes that the Chambers has been established to investigate and prosecute. Amnesty International’s analysis of the Draft Rules applies international law and standards concerning the rights of victims and witnesses to protection, support, information, participation and reparations, which are recognized in a number of instruments, most notably:
I. Protection and support
In order for the Extraordinary Chambers to succeed in investigating and prosecuting those most responsible for the crimes committed during the period from 17 April 1975 to 6 January 1979, it is vital that effective systems to ensure the protection and support to victims and witnesses are put in place. The serious nature of the crimes means that victims and witnesses may be subject to intimidation, threats and attack and, on account of the horrific nature of the crimes they have suffered, will be particularly vulnerable to traumatization before, during and after the judicial proceedings before the Extraordinary Chambers.
The Extraordinary Chambers is expressly mandated to protect victims and witnesses in Article 26 of the Agreement between the United Nations and the Royal Government of Cambodia(7) and Article 33 of the Law on the Establishment of the Extraordinary Chambers.(8) Amnesty International is, however, deeply concerned that this important mandate has not been adequately incorporated into the Draft Rules.
The Draft Rules fail to establish an effective mechanism to provide protection and support to victims and witnesses. Recognizing that the national systems in Cambodia are incapable of organizing and providing an adequate level of protection and support to victims of these serious crimes, Amnesty International believes that an independent mechanism should be established within the Extraordinary Chambers to perform these functions, where appropriate with the assistance of national authorities. Other international and internationalized courts have found that such mechanisms are essential to the success of their work. The International Criminal Court, the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Tribunal for Rwanda (ICTR) and the Special Court for Sierra Leone have all established victims and witnesses units which are expressly mandated to provide protection and support to victims and witnesses.(9) Indeed, problems experienced by the ICTR in its first years confirm that ineffective systems for victims and witnesses protection and support affect all aspects of the work of international and internationalized courts. In 1997, the United Nations Office of Internal Oversight reported "the slow development of [ICTR] witness-related programmes hampered trial preparation and has the potential to impact negatively on the trials."(10)
Unfortunately, the Draft Rules fail to draw from the lessons and practices of these courts. Although the Draft Rule 13 proposes a Victims Unit, that Unit focuses on facilitating victims participating in the process and seeking reparation as civil parties rather than organizing and providing protection and support functions. A provision that the Unit would "fulfil its functions, inter alia, by: a) Assisting in the protection of the rights of victims" is vague. It is not clear whom the Unit would assist or whether the Unit would have any functions in relation to protection and support appearing before the Extraordinary Chambers. The Victims Unit would only service victims and not witnesses. Furthermore, the Victims Unit would not be covered by the core budget of the Extraordinary Chambers, but would require external funding. This raises uncertainty as to whether adequate resources could be provided to run these essential services effectively.
Although Amnesty International supports the establishment of the Victims Unit proposed in the Draft Rule 13 to assist victims with participation and reparation (see below), however, the organization does not believe that the Unit will be able to conduct victims and witnesses protection and support effectively. It is therefore recommended that the Extraordinary Chambers follows the precedent of the International Criminal Court which has established two separate victims units: (1) a victims and witnesses unit to provide protection and support and (2) a victims participation and reparations unit to assist victims with participation and reparation. The need for the separate units is justified by: the different expertise required in each unit (for example experts in security required for protection and support may not be required for participation and reparation); the different constituencies the units would serve (although there may be some overlap, the victims and witnesses unit would deal with victims and witnesses appearing before the court, whereas the victims participation and reparation unit would deal with a much larger group of victims claiming reparation and participating as civil parties); and the need for strict security over protection matters which will be facilitated by a smaller and separate victims and witnesses unit.
The Victims and Witnesses Unit should be funded by the regular budget of the Extraordinary Chambers in order not to repeat the serious problems faced by the ICTY in its first years. Many aspects of the ICTY’s work were frustrated because it was reliant on voluntary contributions until the costs were incorporated into its regular budget in 1998.(11) If no provision exists in the current budget, a temporary supplementary budget should be requested, pending its inclusion in the next regular budget.
The Rules should also require that the Victims and Witnesses Unit include staff with expertise in key areas, drawing from Rule 19 of the Rules of Procedure of the International Criminal Court and the EC should undertake a global search for the most experienced staff.(12)
The scope of protection and support measures listed in the Draft Rule 34 is dangerously inadequate. Draft Rule 34 on protective measures, appears to only cover measures to protect the identity of such persons and relocation. Although measures to protect the identity of victims or witnesses (ensuring against anonymous witnesses) and relocation are important aspects of protection, the practice of international and internationalized courts demonstrate that a much broader range of measures will be required. Article 68 of the Rome Statute, for example, requires that "[t]he Court shall take appropriate measures to protect the safety, physical and psychological well-being, dignity and privacy of victims and witnesses."(13) Measures commonly accepted as falling under these categories of protection and support include:
The Draft Rules fail to incorporate rules necessary to ensure the protection and support of survivors of sexual violence. In recent years, international and internationalized courts have incorporated rules which seek to address the specific protection and support needs of survivors of sexual violence. These provisions include:
II. Victims’ participation
Amnesty International welcomes many aspects of the system established in the Draft Rules whereby victims of crimes being investigated and prosecuted by the Extraordinary Chambers can participate as civil parties. The Rules provide that civil parties can participate in the process with legal representation including by making requests of the investigating judge;(17) appealing certain pre-trial decisions;(18) attending the trial;(19) questioning the accused through the judge;(20) making oral and written submissions to the Trial Chamber;(21) and seeking enforcement of reparation orders.(22) These provisions are consistent with the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power which states:
The responsiveness of judicial and administrative processes to the needs of victims should be facilitated by:…(b) allowing the views and concerns of victims to be presented and considered at appropriate stages of the proceedings where their personal interests are affected, without prejudice to the accused…(23)
There are some issues, however, which arise in the Draft Rules that should be addressed.
The Victims Unit must be established. Amnesty International believes that the establishment of the Victims Unit proposed in Draft Rule 13 is vital to ensure that victims can participate as civil parties and claim reparation before the Extraordinary Chambers. The Unit should be established independent of a victims and witnesses unit for protection and support (recommended above) for practical and security reasons. Amnesty International urges the judges to agree to the establishment of the Unit so that it can be established and its begin work as soon as possible to inform victims of their right to participate and claim reparation and put in place effective mechanisms to assist victims and their legal representatives. Furthermore, Amnesty International calls on the Extraordinary Chambers to follow the precedent set by the International Criminal Court by incorporating the budget of the Unit into its regular budget. If no provision exists in the current budget, a temporary supplementary budget should be requested, pending its inclusion in the next regular budget.
The Draft Rules should provide for the funding of legal representation for indigent civil parties. Draft Rule 27 (10) draws from Rule 90(5) of the International Criminal Court’s Rules of Procedure and Evidence by providing that the Extraordinary Chambers "may" provide financial assistance to fund legal representation for civil parties who lack the means to pay for representation. In practice, the International Criminal Court has provided resources for such assistance in its annual budgets as well as establishing an Office of Public Counsel for Victims, which can also represent victims. Amnesty International recognizes that crimes under international law are overwhelmingly committed against disadvantaged people who will lack the means to fund their legal representation. Having been denied justice for so long, it would be grossly unjust if Cambodian victims were precluded from participating in the proceedings of the Extraordinary Chambers because they lacked the necessary funds or, if victims were forced to enter into inappropriate contingency agreements with lawyers in order to participate and thereby lose a proportion of any financial reparation granted to address their suffering. Amnesty International believes that a system which would exclude victims because they are indigent, would go against the important principle set out in the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power that procedures be "inexpensive and accessible."(24) In these circumstances, Amnesty International strongly urges the Extraordinary Chamber to amend Rule 27 (10) so that legal representation for indigent victims will be funded by the Chambers and to take other steps to ensure that resources will be available to all indigent victims wishing to participate.
III. Reparation for victims
Recognizing that ensuring reparation for victims is an essential element of addressing crimes under international law and of ending impunity, Amnesty International welcomes the inclusion of provisions for reparation for victims in the Draft Rules. The provisions, however, contain some flaws which should be addressed.
Victims who have recovered from injury should not be precluded from obtaining reparation. Amnesty International is concerned by the inclusion of the following requirement in the Draft Rules:
The injury must be physical, material or psychological. To be eligible for reparation, the injury must also:…have come into being and continue to subsist at the time of the proceedings.
The provision that the injury must be continue to subsist is contrary to international standards on the right to reparation and is especially inappropriate in view of the considerable time that has elapsed since the crimes were committed. It fails to take into account that there has been no effective avenue for victims to seek reparation for the crimes under the jurisdiction of the Extraordinary Chambers committed against them and their family members until this time.
The Draft Rules should provide for all internationally recognized forms of reparation. Draft Rule 12 (b) should be amended to contain all forms of reparation contained in international standards. Although the Draft Rules refers to the ability of the Extraordinary Chamber to provide compensation and "symbolic reparations", there are broader forms of reparation and clearer terminology which should be used to clarify the extent of reparation which can be awarded by the Extraordinary Chambers. In particular, the Draft Rule should expressly include all five internationally recognized forms of reparation: restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition.(26) Each form is described in detail in the UN Basic Principles and Guidelines on the Right to Reparation (see Annex I).(27)
Civil parties should be able to directly appeal a judgment on their civil claim. The Draft Rules are unclear on whether civil parties can directly appeal the Extraordinary Chambers judgment on their civil parties claim. Draft Rule 102 (2) states clearly that "such a judgment is open to appeal." However, Rule 104 on admissibility states that civil parties may appeal "only where the Co-Prosecutors have appealed." Amnesty International would be concerned if the ability of victims to appeal a decision on their civil claim was conditional upon the Co-Prosecutors appealing the criminal judgment. The requirement is inconsistent with the other Draft Rules which carefully seek to allow the criminal and civil processes to take part at the same time without conflict. In particular, there may be instances where a person has been convicted and/or the Co-Prosecutors do not want to appeal on criminal issues, however, victims may wish to appeal aspects of the civil claim, for example, the scope or amount of reparation. Amnesty International therefore recommends that the Draft Rules be amended to allow victims to directly file appeals in respect of civil claims where criminal appeals are not required, on the condition that such claims do not seek to appeal decisions on criminal issues already made by the Extraordinary Chambers.
IV. Summary of Amnesty International’s concerns on other aspects of the Draft Rules
The focus of this paper on victims and witness issues is not intended to detract attention from other important issues arising from the Draft Rules that the judges will consider at this session. Amnesty International in preparing this submission has prioritized victims’ and witnesses’ issues, taking into account that submissions by other organizations have addressed a number of other concerns. The organization’s has two major concerns which are summarised below:
Principle 19:
Restitution should, whenever possible, restore the victim to the original situation before the gross violations of international human rights law or serious violations of international humanitarian law occurred. Restitution includes, as appropriate: restoration of liberty, enjoyment of human rights, identity, family life and citizenship, return to one’s place of residence, restoration of employment and return of property.
Principle 20:
Compensation should be provided for any economically assessable damage, as appropriate and proportional to the gravity of the violation and the circumstances of each case, resulting from gross violations of international human rights law and serious violations of international humanitarian law, such as:
(a) Physical or mental harm;
(b) Lost opportunities, including employment, education and social benefits;
(c) Material damages and loss of earnings, including loss of earning potential;
(d) Moral damage;
(e) Costs required for legal or expert assistance, medicine and medical services, and psychological and social services.
Principle 21:
Rehabilitation should include medical and psychological care as well as legal and social services.
Principle 22:
Satisfaction should include, where applicable, any or all of the following:
(a) Effective measures aimed at the cessation of continuing violations;
(b) Verification of the facts and full and public disclosure of the truth to the extent that such disclosure does not cause further harm or threaten the safety and interests of the victim, the victim’s relatives, witnesses, or persons who have intervened to assist the victim or prevent the occurrence of further violations;
(c) The search for the whereabouts of the disappeared, for the identities of the children abducted, and for the bodies of those killed, and assistance in the recovery, identification and reburial of the bodies in accordance with the expressed or presumed wish of the victims, or the cultural practices of the families and communities;
(d) An official declaration or a judicial decision restoring the dignity, the reputation and the rights of the victim and of persons closely connected with the victim;
(e) Public apology, including acknowledgement of the facts and acceptance of responsibility;
(f) Judicial and administrative sanctions against persons liable for the violations;
(g) Commemorations and tributes to the victims;
(h) Inclusion of an accurate account of the violations that occurred in international human rights law and international humanitarian law training and in educational material at all levels.
Principle 23
Guarantees of non-repetition should include, where applicable, any or all of the following measures, which will also contribute to prevention:
(a) Ensuring effective civilian control of military and security forces;
(b) Ensuring that all civilian and military proceedings abide by international standards of due process, fairness and impartiality;
(c) Strengthening the independence of the judiciary;
(d) Protecting persons in the legal, medical and health-care professions, the media and other related professions, and human rights defenders;
(e) Providing, on a priority and continued basis, human rights and international humanitarian law education to all sectors of society and training for law enforcement officials as well as military and security forces;
(f) Promoting the observance of codes of conduct and ethical norms, in particular international standards, by public servants, including law enforcement, correctional, media, medical, psychological, social service and military personnel, as well as by economic enterprises;
(g) Promoting mechanisms for preventing and monitoring social conflicts and their resolution;
(h) Reviewing and reforming laws contributing to or allowing gross violations of international human rights law and serious violations of international humanitarian law.
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On 20-25 November 2007, the judges of the Extraordinary Chambers in the Courts of Cambodia (Extraordinary Chambers) held their first plenary session to consider its Draft Internal Rules (Draft Rules).(1) During that session, Amnesty International issued a statement urging the judges to extend their consideration of the Draft Rules allowing more time for public comments and expert consultations.(2) The organization, therefore, welcomes the decision of the judges to defer adoption of this very important document so that more consideration can be give to the full range of issues. At the same time, Amnesty International notes that consideration of the Rules of the Extraordinary Chamber should not delay its work and therefore calls on the judges to prioritize their work on the Rules to ensure that they can be as adopted as expeditiously as possible.
This paper sets out Amnesty International’s serious concerns on certain aspects of the Draft Rules which relate to victims and witnesses. The organization urges the judges to consider and adopt a number of concrete recommendations discussed below to ensure that the Extraordinary Chambers attains the highest standards of services and treatment for victims and witnesses who have been most directly affected by the horrific crimes that the Chambers has been established to investigate and prosecute. Amnesty International’s analysis of the Draft Rules applies international law and standards concerning the rights of victims and witnesses to protection, support, information, participation and reparations, which are recognized in a number of instruments, most notably:
- The United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power;(3)
- The Rome Statute of the International Criminal Court (Rome Statute);(4)
- The United Nations 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 (UN Basic Principles and Guidelines on the Right to Reparation).(5)
- The Updated set of principles for the protection and promotion of human rights through action to combat impunity (Updated UN principles on impunity).(6)
I. Protection and support
In order for the Extraordinary Chambers to succeed in investigating and prosecuting those most responsible for the crimes committed during the period from 17 April 1975 to 6 January 1979, it is vital that effective systems to ensure the protection and support to victims and witnesses are put in place. The serious nature of the crimes means that victims and witnesses may be subject to intimidation, threats and attack and, on account of the horrific nature of the crimes they have suffered, will be particularly vulnerable to traumatization before, during and after the judicial proceedings before the Extraordinary Chambers.
The Extraordinary Chambers is expressly mandated to protect victims and witnesses in Article 26 of the Agreement between the United Nations and the Royal Government of Cambodia(7) and Article 33 of the Law on the Establishment of the Extraordinary Chambers.(8) Amnesty International is, however, deeply concerned that this important mandate has not been adequately incorporated into the Draft Rules.
The Draft Rules fail to establish an effective mechanism to provide protection and support to victims and witnesses. Recognizing that the national systems in Cambodia are incapable of organizing and providing an adequate level of protection and support to victims of these serious crimes, Amnesty International believes that an independent mechanism should be established within the Extraordinary Chambers to perform these functions, where appropriate with the assistance of national authorities. Other international and internationalized courts have found that such mechanisms are essential to the success of their work. The International Criminal Court, the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Tribunal for Rwanda (ICTR) and the Special Court for Sierra Leone have all established victims and witnesses units which are expressly mandated to provide protection and support to victims and witnesses.(9) Indeed, problems experienced by the ICTR in its first years confirm that ineffective systems for victims and witnesses protection and support affect all aspects of the work of international and internationalized courts. In 1997, the United Nations Office of Internal Oversight reported "the slow development of [ICTR] witness-related programmes hampered trial preparation and has the potential to impact negatively on the trials."(10)
Unfortunately, the Draft Rules fail to draw from the lessons and practices of these courts. Although the Draft Rule 13 proposes a Victims Unit, that Unit focuses on facilitating victims participating in the process and seeking reparation as civil parties rather than organizing and providing protection and support functions. A provision that the Unit would "fulfil its functions, inter alia, by: a) Assisting in the protection of the rights of victims" is vague. It is not clear whom the Unit would assist or whether the Unit would have any functions in relation to protection and support appearing before the Extraordinary Chambers. The Victims Unit would only service victims and not witnesses. Furthermore, the Victims Unit would not be covered by the core budget of the Extraordinary Chambers, but would require external funding. This raises uncertainty as to whether adequate resources could be provided to run these essential services effectively.
Although Amnesty International supports the establishment of the Victims Unit proposed in the Draft Rule 13 to assist victims with participation and reparation (see below), however, the organization does not believe that the Unit will be able to conduct victims and witnesses protection and support effectively. It is therefore recommended that the Extraordinary Chambers follows the precedent of the International Criminal Court which has established two separate victims units: (1) a victims and witnesses unit to provide protection and support and (2) a victims participation and reparations unit to assist victims with participation and reparation. The need for the separate units is justified by: the different expertise required in each unit (for example experts in security required for protection and support may not be required for participation and reparation); the different constituencies the units would serve (although there may be some overlap, the victims and witnesses unit would deal with victims and witnesses appearing before the court, whereas the victims participation and reparation unit would deal with a much larger group of victims claiming reparation and participating as civil parties); and the need for strict security over protection matters which will be facilitated by a smaller and separate victims and witnesses unit.
The Victims and Witnesses Unit should be funded by the regular budget of the Extraordinary Chambers in order not to repeat the serious problems faced by the ICTY in its first years. Many aspects of the ICTY’s work were frustrated because it was reliant on voluntary contributions until the costs were incorporated into its regular budget in 1998.(11) If no provision exists in the current budget, a temporary supplementary budget should be requested, pending its inclusion in the next regular budget.
The Rules should also require that the Victims and Witnesses Unit include staff with expertise in key areas, drawing from Rule 19 of the Rules of Procedure of the International Criminal Court and the EC should undertake a global search for the most experienced staff.(12)
The scope of protection and support measures listed in the Draft Rule 34 is dangerously inadequate. Draft Rule 34 on protective measures, appears to only cover measures to protect the identity of such persons and relocation. Although measures to protect the identity of victims or witnesses (ensuring against anonymous witnesses) and relocation are important aspects of protection, the practice of international and internationalized courts demonstrate that a much broader range of measures will be required. Article 68 of the Rome Statute, for example, requires that "[t]he Court shall take appropriate measures to protect the safety, physical and psychological well-being, dignity and privacy of victims and witnesses."(13) Measures commonly accepted as falling under these categories of protection and support include:
- Organizing protection and security including, where necessary, organizing for relocation;
- Providing support to victims and witnesses before, during and after the trial process, including counseling, medical treatment, providing support persons and other appropriate assistance;
- Training of court staff that come into contact with victims and witnesses; and
- Developing effective codes of conducts for the organs of the Court.
The Victims and Witnesses Unit shall, inter alia, perform the following functions, in accordance with the Statute and the Rules, and in consultation with the Chamber, the Prosecutor and the defence, as appropriate:Amnesty International therefore calls on the judges of the Extraordinary Chambers to amend Draft Rule 34 to ensure that its victims and witnesses unit can provide for a full range of protection and support functions, in accordance with Rule 17 (2) of the Rules of Procedure of the International Criminal Court.
(a) With respect to all witnesses, victims who appear before the Court, and others who are at risk on account of testimony given by such witnesses, in accordance with their particular needs and circumstances:
(i) Providing them with adequate protective and security measures and formulating long- and short-term plans for their protection;
(ii) Recommending to the organs of the Court the adoption of protection measures and also advising relevant States of such measures;
(iii) Assisting them in obtaining medical, psychological and other appropriate assistance;
(iv) Making available to the Court and the parties training in issues of trauma, sexual violence, security and confidentiality;
(v) Recommending, in consultation with the Office of the Prosecutor, the elaboration of a code of conduct, emphasizing the vital nature of security and confidentiality for investigators of the Court and of the defence and all intergovernmental and non-governmental organizations acting at the request of the Court, as appropriate;
(vi) Cooperating with States, where necessary, in providing any of the measures stipulated in this rule;
(b) With respect to witnesses:
(i) Advising them where to obtain legal advice for the purpose of protecting their rights, in particular in relation to their testimony;
(ii) Assisting them when they are called to testify before the Court;
(iii) Taking gender-sensitive measures to facilitate the testimony of victims of sexual violence at all stages of the proceedings.
The Draft Rules fail to incorporate rules necessary to ensure the protection and support of survivors of sexual violence. In recent years, international and internationalized courts have incorporated rules which seek to address the specific protection and support needs of survivors of sexual violence. These provisions include:
- Recommending that staff in certain units have expertise in gender and cultural diversity;(14)
- Provisions setting out principles of evidence in crimes of sexual violence;(15)
- Expressly indicating that survivors of sexual violence should be allowed, if they wish, to give testimony in camera or through electronic or other special means.(16)
II. Victims’ participation
Amnesty International welcomes many aspects of the system established in the Draft Rules whereby victims of crimes being investigated and prosecuted by the Extraordinary Chambers can participate as civil parties. The Rules provide that civil parties can participate in the process with legal representation including by making requests of the investigating judge;(17) appealing certain pre-trial decisions;(18) attending the trial;(19) questioning the accused through the judge;(20) making oral and written submissions to the Trial Chamber;(21) and seeking enforcement of reparation orders.(22) These provisions are consistent with the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power which states:
The responsiveness of judicial and administrative processes to the needs of victims should be facilitated by:…(b) allowing the views and concerns of victims to be presented and considered at appropriate stages of the proceedings where their personal interests are affected, without prejudice to the accused…(23)
There are some issues, however, which arise in the Draft Rules that should be addressed.
The Victims Unit must be established. Amnesty International believes that the establishment of the Victims Unit proposed in Draft Rule 13 is vital to ensure that victims can participate as civil parties and claim reparation before the Extraordinary Chambers. The Unit should be established independent of a victims and witnesses unit for protection and support (recommended above) for practical and security reasons. Amnesty International urges the judges to agree to the establishment of the Unit so that it can be established and its begin work as soon as possible to inform victims of their right to participate and claim reparation and put in place effective mechanisms to assist victims and their legal representatives. Furthermore, Amnesty International calls on the Extraordinary Chambers to follow the precedent set by the International Criminal Court by incorporating the budget of the Unit into its regular budget. If no provision exists in the current budget, a temporary supplementary budget should be requested, pending its inclusion in the next regular budget.
The Draft Rules should provide for the funding of legal representation for indigent civil parties. Draft Rule 27 (10) draws from Rule 90(5) of the International Criminal Court’s Rules of Procedure and Evidence by providing that the Extraordinary Chambers "may" provide financial assistance to fund legal representation for civil parties who lack the means to pay for representation. In practice, the International Criminal Court has provided resources for such assistance in its annual budgets as well as establishing an Office of Public Counsel for Victims, which can also represent victims. Amnesty International recognizes that crimes under international law are overwhelmingly committed against disadvantaged people who will lack the means to fund their legal representation. Having been denied justice for so long, it would be grossly unjust if Cambodian victims were precluded from participating in the proceedings of the Extraordinary Chambers because they lacked the necessary funds or, if victims were forced to enter into inappropriate contingency agreements with lawyers in order to participate and thereby lose a proportion of any financial reparation granted to address their suffering. Amnesty International believes that a system which would exclude victims because they are indigent, would go against the important principle set out in the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power that procedures be "inexpensive and accessible."(24) In these circumstances, Amnesty International strongly urges the Extraordinary Chamber to amend Rule 27 (10) so that legal representation for indigent victims will be funded by the Chambers and to take other steps to ensure that resources will be available to all indigent victims wishing to participate.
III. Reparation for victims
Recognizing that ensuring reparation for victims is an essential element of addressing crimes under international law and of ending impunity, Amnesty International welcomes the inclusion of provisions for reparation for victims in the Draft Rules. The provisions, however, contain some flaws which should be addressed.
Victims who have recovered from injury should not be precluded from obtaining reparation. Amnesty International is concerned by the inclusion of the following requirement in the Draft Rules:
The injury must be physical, material or psychological. To be eligible for reparation, the injury must also:…have come into being and continue to subsist at the time of the proceedings.
The provision that the injury must be continue to subsist is contrary to international standards on the right to reparation and is especially inappropriate in view of the considerable time that has elapsed since the crimes were committed. It fails to take into account that there has been no effective avenue for victims to seek reparation for the crimes under the jurisdiction of the Extraordinary Chambers committed against them and their family members until this time.
Under international law, victims of violations of crimes under international law are entitled to full and effective reparation. Article 18 of the UN Basic Principles and Guidelines on the Right to Reparation states:Full and effective reparation requires that:
victims of gross violations of international human rights law and serious violations of international humanitarian law, should, as appropriate and proportional to the gravity of the violation and the circumstances of each case, be provided with full and effective reparation…
"reparation must, as far as possible, wipe out all the consequences of the illegal act and re-establish the situation which would, in all probability, have existed if that act had not been committed."(25)Crimes under international law will in most cases have a devastating impact on the victims that will affect them for the rest of their lives and even in cases where a person recovers from an injury, that injury may have lasted for many months or years and had a number of adverse consequences on the victims’ life. The right of victims to seek reparation to address the suffering caused by the injury and the consequences that have arisen from it should not be restricted arbitrarily solely on the basis that the long-overdue Extraordinary Chambers has only now been established. Amnesty International therefore calls on the judges to delete the requirement that the injury must "continue to subsist" from Draft Rule 27(12) (a).
The Draft Rules should provide for all internationally recognized forms of reparation. Draft Rule 12 (b) should be amended to contain all forms of reparation contained in international standards. Although the Draft Rules refers to the ability of the Extraordinary Chamber to provide compensation and "symbolic reparations", there are broader forms of reparation and clearer terminology which should be used to clarify the extent of reparation which can be awarded by the Extraordinary Chambers. In particular, the Draft Rule should expressly include all five internationally recognized forms of reparation: restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition.(26) Each form is described in detail in the UN Basic Principles and Guidelines on the Right to Reparation (see Annex I).(27)
Civil parties should be able to directly appeal a judgment on their civil claim. The Draft Rules are unclear on whether civil parties can directly appeal the Extraordinary Chambers judgment on their civil parties claim. Draft Rule 102 (2) states clearly that "such a judgment is open to appeal." However, Rule 104 on admissibility states that civil parties may appeal "only where the Co-Prosecutors have appealed." Amnesty International would be concerned if the ability of victims to appeal a decision on their civil claim was conditional upon the Co-Prosecutors appealing the criminal judgment. The requirement is inconsistent with the other Draft Rules which carefully seek to allow the criminal and civil processes to take part at the same time without conflict. In particular, there may be instances where a person has been convicted and/or the Co-Prosecutors do not want to appeal on criminal issues, however, victims may wish to appeal aspects of the civil claim, for example, the scope or amount of reparation. Amnesty International therefore recommends that the Draft Rules be amended to allow victims to directly file appeals in respect of civil claims where criminal appeals are not required, on the condition that such claims do not seek to appeal decisions on criminal issues already made by the Extraordinary Chambers.
IV. Summary of Amnesty International’s concerns on other aspects of the Draft Rules
The focus of this paper on victims and witness issues is not intended to detract attention from other important issues arising from the Draft Rules that the judges will consider at this session. Amnesty International in preparing this submission has prioritized victims’ and witnesses’ issues, taking into account that submissions by other organizations have addressed a number of other concerns. The organization’s has two major concerns which are summarised below:
- Amnesty International strongly opposes provisions in the Draft Rules which would allow for trial in absentia which would not be consistent with international fair trial standards, in particular Article 14 (3) (d) of the International Covenant on Civil and Political Rights.(28) The statutes of every other international criminal court established since 1993 have excluded such trials. Amnesty International believes that the accused should be present in court during a trial to hear the full prosecution case, to put forward a defence or assist their counsel to refute evidence and to examine witnesses or advise their counsel in the examination of witnesses.(29)
- Amnesty International supports the establishment of an independent Defence Unit within the Extraordinary Chambers to accredit lawyers and provide support services to defence counsel. The organization opposes the option to grant this task to the Cambodia Bar Association, which at present is not independent and which has publicly stated in recent months that it would bar foreign lawyers from defending accused persons.
Annex 1: Forms of reparation as set out in the UN Basic Principles and Guidelines on the Right to Reparation
Principle 19:
Restitution should, whenever possible, restore the victim to the original situation before the gross violations of international human rights law or serious violations of international humanitarian law occurred. Restitution includes, as appropriate: restoration of liberty, enjoyment of human rights, identity, family life and citizenship, return to one’s place of residence, restoration of employment and return of property.
Principle 20:
Compensation should be provided for any economically assessable damage, as appropriate and proportional to the gravity of the violation and the circumstances of each case, resulting from gross violations of international human rights law and serious violations of international humanitarian law, such as:
(a) Physical or mental harm;
(b) Lost opportunities, including employment, education and social benefits;
(c) Material damages and loss of earnings, including loss of earning potential;
(d) Moral damage;
(e) Costs required for legal or expert assistance, medicine and medical services, and psychological and social services.
Principle 21:
Rehabilitation should include medical and psychological care as well as legal and social services.
Principle 22:
Satisfaction should include, where applicable, any or all of the following:
(a) Effective measures aimed at the cessation of continuing violations;
(b) Verification of the facts and full and public disclosure of the truth to the extent that such disclosure does not cause further harm or threaten the safety and interests of the victim, the victim’s relatives, witnesses, or persons who have intervened to assist the victim or prevent the occurrence of further violations;
(c) The search for the whereabouts of the disappeared, for the identities of the children abducted, and for the bodies of those killed, and assistance in the recovery, identification and reburial of the bodies in accordance with the expressed or presumed wish of the victims, or the cultural practices of the families and communities;
(d) An official declaration or a judicial decision restoring the dignity, the reputation and the rights of the victim and of persons closely connected with the victim;
(e) Public apology, including acknowledgement of the facts and acceptance of responsibility;
(f) Judicial and administrative sanctions against persons liable for the violations;
(g) Commemorations and tributes to the victims;
(h) Inclusion of an accurate account of the violations that occurred in international human rights law and international humanitarian law training and in educational material at all levels.
Principle 23
Guarantees of non-repetition should include, where applicable, any or all of the following measures, which will also contribute to prevention:
(a) Ensuring effective civilian control of military and security forces;
(b) Ensuring that all civilian and military proceedings abide by international standards of due process, fairness and impartiality;
(c) Strengthening the independence of the judiciary;
(d) Protecting persons in the legal, medical and health-care professions, the media and other related professions, and human rights defenders;
(e) Providing, on a priority and continued basis, human rights and international humanitarian law education to all sectors of society and training for law enforcement officials as well as military and security forces;
(f) Promoting the observance of codes of conduct and ethical norms, in particular international standards, by public servants, including law enforcement, correctional, media, medical, psychological, social service and military personnel, as well as by economic enterprises;
(g) Promoting mechanisms for preventing and monitoring social conflicts and their resolution;
(h) Reviewing and reforming laws contributing to or allowing gross violations of international human rights law and serious violations of international humanitarian law.
********
(1) Issued on Friday 3 November, available at: http://www.eccc.gov.kh/english/cabinet/files/IR_ECCC_Draft-Internal-Rules.pdf.
(2) See: Cambodia: Extraordinary Chambers must not rush to adopt flawed rules (AI Index: ASA 23/012/2006).
(3) Adopted by General Assembly resolution 40/34 of 29 November 1985 (available at: http://www.ohchr.org/english/law/victims.htm).
(4) U.N. Doc: A/CONF.183/9, adopted at the Rome Diplomatic Conference on 17 July 1998 and entered into force on 1 July 2002 (available at: http://www.un.org/law/icc/statute/english/rome_statute(e).pdf).
(5) U.N. Doc. A/C.3/60/l.24, adopted by the General Assembly on 24 October 2005 (available at: http://www.ohchr.org/english/law/remedy.htm).
(6) U.N. Doc. E/CN.4/2005/102/Add.1, 8 February 2005, adopted by the UN Commission on Human Rights in Resolution E/CN.4/2005/81, 15 April 2005.
(7) Article 26 provides: "The co-investigating judges, the co-prosecutors and the Extraordinary Chambers shall provide for the protection of victims and witnesses. Such protection measures shall include, but shall not be limited to, the conduct of in camera proceedings and the protection of the identity of a victim or witness."
(8) Article 33 provides: "The Court shall provide for the protection of victims and witnesses. Such protection measures shall include, but not be limited to, the conduct of in camera proceedings and the protection of the victim’s identity."
(9) For example, Article 43 (6) of the Rome Statute provides:
"The Registrar shall set up a Victims and Witnesses Unit within the Registry. This Unit shall provide, in consultation with the Office of the Prosecutor, protective measures and security arrangements, counseling and other appropriate assistance for witnesses, victims who appear before the Court, and others who are at risk on account of testimony given by such witnesses."
(10) Report of the Secretary-General on the Activities of the Office of Internal Oversight Services, U.N. Doc. A/51/789 (1997), at para.54.
(11) Report of the International Tribunal for the Prosecution of Persons Responsible foe Serious Violations of International Humanitarian Law Committed in the Territory of the former Yugoslavia since 1991, U.N. Doc. A/53/219-S/1998/737 (10 August 1998), para, 153.
(12) Rule 19 states: "In addition to the staff mentioned in article 43, paragraph 6, and subject to article 44, the Victims and Witnesses Unit may include, as appropriate, persons with expertise, inter alia, in the following areas:
(a) Witness protection and security;
(b) Legal and administrative matters, including areas of humanitarian and criminal law;
(c) Logistics administration;
(d) Psychology in criminal proceedings;
(e) Gender and cultural diversity;
(f) Children, in particular traumatized children;
(g) Elderly persons, in particular in connection with armed conflict and exile trauma;
(h) Persons with disabilities;
(i) Social work and counselling;
(j) Health care;
(k) Interpretation and translation.
(13) See also: Principle 6 of the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power:
The responsiveness of judicial and administrative processes to the needs of victims should be facilitated by: (d) Taking measures to minimize inconvenience to victims, protect their privacy, when necessary, and ensure their safety, as well as that of their families and witnesses on their behalf, from intimidation and retaliation.
(14) Rule 19(e) of the Rules of Procedure of the International Criminal Court in relation to the staff of the Victims and Witnesses Unit.
(15) Rule 63 of the Rules of Procedure of the International Criminal Court
(4) Without prejudice to article 66, paragraph 3, a Chamber shall not impose a legal requirement that corroboration is required in order to prove any crime within the jurisdiction of the Court, in particular, crimes of sexual violence.
Rule 70 of the Rules of Procedure of the International Criminal Court states:
In cases of sexual violence, the Court shall be guided by and, where appropriate, apply the following principles:
(a) Consent cannot be inferred by reason of any words or conduct of a victim where force, threat of force, coercion or taking advantage of a coercive environment undermined the victims ability to give voluntary and genuine consent;
(b) Consent cannot be inferred by reason of any words or conduct of a victim where the victim is incapable of giving genuine consent;
(c) Consent cannot be inferred by reason of the silence of, or lack of resistance by, a victim to the alleged sexual violence;
(d) Credibility, character or predisposition to sexual availability of a victim or witness cannot be inferred by reason of the sexual nature of the prior or subsequent conduct of a victim or witness.
Rule 71 states:
In light of the definition and nature of the crimes within the jurisdiction of the Court, and subject to article 69, paragraph 4, a Chamber shall not admit evidence of the prior or subsequent sexual conduct of a victim or witness.
See also: Rule 96 of the Rules of Procedure and Evidence of the ICTY; Rule 96 of the Rules of Procedure and Evidence of the ICTR; and Rule 96 of the Rules of Procedure and Evidence of the Special Court for Sierra Leone.
(16) Article 68 (2) of the Rome Statute states: "In particular, such measures shall be implemented in the case of a victim of sexual violence or a child who is a victim or a witness, unless otherwise ordered by the Court."
(17) Draft Rule 58 (10).
(18) Draft Rule 74 (4).
(19) Draft Rule 87.
(20) Draft Rule 88 (2).
(21) Draft Rules 89. 90 and 92.
(22) Draft Rule 112.
(23) Principle 6 (b).
(24) Principle 5.
(25) Chorzow Factory Case, Merits, 1928, P.C.I.J., Series A, No. 17, p.47; Crawford, The International Law Commission’s Articles on State Responsibility, Commentary to Article 31, p. 202.
(26) Article 18 of the UN Basic Principles and Guidelines on the Right to Reparation.
(27) Many of these forms of reparation are also addressed in detail in the Updated UN principles on impunity
(28) Article 14 (3)(d) states: "In the determination of any criminal charge against him, everyone shall be entitles to the following minimum guarantees in full equality:…(d) To be tried in his presence,…"
(29) For a more detailed account of Amnesty International’s position on trials in absentia see: Amnesty International’s Fair Trials Manual, p.110 (available at: http://www.amnesty.org/ailib/intcam/fairtrial/fairtria.htm)
(2) See: Cambodia: Extraordinary Chambers must not rush to adopt flawed rules (AI Index: ASA 23/012/2006).
(3) Adopted by General Assembly resolution 40/34 of 29 November 1985 (available at: http://www.ohchr.org/english/law/victims.htm).
(4) U.N. Doc: A/CONF.183/9, adopted at the Rome Diplomatic Conference on 17 July 1998 and entered into force on 1 July 2002 (available at: http://www.un.org/law/icc/statute/english/rome_statute(e).pdf).
(5) U.N. Doc. A/C.3/60/l.24, adopted by the General Assembly on 24 October 2005 (available at: http://www.ohchr.org/english/law/remedy.htm).
(6) U.N. Doc. E/CN.4/2005/102/Add.1, 8 February 2005, adopted by the UN Commission on Human Rights in Resolution E/CN.4/2005/81, 15 April 2005.
(7) Article 26 provides: "The co-investigating judges, the co-prosecutors and the Extraordinary Chambers shall provide for the protection of victims and witnesses. Such protection measures shall include, but shall not be limited to, the conduct of in camera proceedings and the protection of the identity of a victim or witness."
(8) Article 33 provides: "The Court shall provide for the protection of victims and witnesses. Such protection measures shall include, but not be limited to, the conduct of in camera proceedings and the protection of the victim’s identity."
(9) For example, Article 43 (6) of the Rome Statute provides:
"The Registrar shall set up a Victims and Witnesses Unit within the Registry. This Unit shall provide, in consultation with the Office of the Prosecutor, protective measures and security arrangements, counseling and other appropriate assistance for witnesses, victims who appear before the Court, and others who are at risk on account of testimony given by such witnesses."
(10) Report of the Secretary-General on the Activities of the Office of Internal Oversight Services, U.N. Doc. A/51/789 (1997), at para.54.
(11) Report of the International Tribunal for the Prosecution of Persons Responsible foe Serious Violations of International Humanitarian Law Committed in the Territory of the former Yugoslavia since 1991, U.N. Doc. A/53/219-S/1998/737 (10 August 1998), para, 153.
(12) Rule 19 states: "In addition to the staff mentioned in article 43, paragraph 6, and subject to article 44, the Victims and Witnesses Unit may include, as appropriate, persons with expertise, inter alia, in the following areas:
(a) Witness protection and security;
(b) Legal and administrative matters, including areas of humanitarian and criminal law;
(c) Logistics administration;
(d) Psychology in criminal proceedings;
(e) Gender and cultural diversity;
(f) Children, in particular traumatized children;
(g) Elderly persons, in particular in connection with armed conflict and exile trauma;
(h) Persons with disabilities;
(i) Social work and counselling;
(j) Health care;
(k) Interpretation and translation.
(13) See also: Principle 6 of the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power:
The responsiveness of judicial and administrative processes to the needs of victims should be facilitated by: (d) Taking measures to minimize inconvenience to victims, protect their privacy, when necessary, and ensure their safety, as well as that of their families and witnesses on their behalf, from intimidation and retaliation.
(14) Rule 19(e) of the Rules of Procedure of the International Criminal Court in relation to the staff of the Victims and Witnesses Unit.
(15) Rule 63 of the Rules of Procedure of the International Criminal Court
(4) Without prejudice to article 66, paragraph 3, a Chamber shall not impose a legal requirement that corroboration is required in order to prove any crime within the jurisdiction of the Court, in particular, crimes of sexual violence.
Rule 70 of the Rules of Procedure of the International Criminal Court states:
In cases of sexual violence, the Court shall be guided by and, where appropriate, apply the following principles:
(a) Consent cannot be inferred by reason of any words or conduct of a victim where force, threat of force, coercion or taking advantage of a coercive environment undermined the victims ability to give voluntary and genuine consent;
(b) Consent cannot be inferred by reason of any words or conduct of a victim where the victim is incapable of giving genuine consent;
(c) Consent cannot be inferred by reason of the silence of, or lack of resistance by, a victim to the alleged sexual violence;
(d) Credibility, character or predisposition to sexual availability of a victim or witness cannot be inferred by reason of the sexual nature of the prior or subsequent conduct of a victim or witness.
Rule 71 states:
In light of the definition and nature of the crimes within the jurisdiction of the Court, and subject to article 69, paragraph 4, a Chamber shall not admit evidence of the prior or subsequent sexual conduct of a victim or witness.
See also: Rule 96 of the Rules of Procedure and Evidence of the ICTY; Rule 96 of the Rules of Procedure and Evidence of the ICTR; and Rule 96 of the Rules of Procedure and Evidence of the Special Court for Sierra Leone.
(16) Article 68 (2) of the Rome Statute states: "In particular, such measures shall be implemented in the case of a victim of sexual violence or a child who is a victim or a witness, unless otherwise ordered by the Court."
(17) Draft Rule 58 (10).
(18) Draft Rule 74 (4).
(19) Draft Rule 87.
(20) Draft Rule 88 (2).
(21) Draft Rules 89. 90 and 92.
(22) Draft Rule 112.
(23) Principle 6 (b).
(24) Principle 5.
(25) Chorzow Factory Case, Merits, 1928, P.C.I.J., Series A, No. 17, p.47; Crawford, The International Law Commission’s Articles on State Responsibility, Commentary to Article 31, p. 202.
(26) Article 18 of the UN Basic Principles and Guidelines on the Right to Reparation.
(27) Many of these forms of reparation are also addressed in detail in the Updated UN principles on impunity
(28) Article 14 (3)(d) states: "In the determination of any criminal charge against him, everyone shall be entitles to the following minimum guarantees in full equality:…(d) To be tried in his presence,…"
(29) For a more detailed account of Amnesty International’s position on trials in absentia see: Amnesty International’s Fair Trials Manual, p.110 (available at: http://www.amnesty.org/ailib/intcam/fairtrial/fairtria.htm)
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