CIVIL PARTY: Khmer Victim(s) v. Charged KR Senior Leader(s) for Crimes against Humanity (etc.)

First published in November 2007 in The Phnom Penh Post as part of the Voice of Justice columns. As we await the decisions of the judges of the Extraordinary Chambers (ECCC) on the scope of victims' participation as civil party, may we be reminded of what this unprecedented concept means, and may the judges not emasculate the civil party's roles and existence which they created as a matter of law. In particular, may they be reminded that civil parties may be represented by an association or by a lawyer, as clearly indicated by the ECCC Victims' Application Form and not reduce our existence further into solely a witness or complainant, and not a party. - A Civil Party, thearyseng.com
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CIVIL PARTY:
Khmer Victim(s) v. Charged KR Senior Leader(s) for Crimes against Humanity (etc.)

It can be accurately stated that every Khmer is a "victim" of the Khmer Rouge soldiers, as virtually every Khmer has suffered loss of family members, house and home, rights etc. during the period of 17 April 1975 to 6 January 1979, the temporal jurisdiction of the Extraordinary Chambers in the Courts of Cambodia ("ECCC").

As a "victim", every Khmer has the choice to participate actively in the ECCC, as a matter of law, in three capacities: (i) be a witness, (ii) file a complaint to the Office of Co-Prosecutors, or (iii) be a civil party.

Witness and Complainant

The first 2 options are normally the ways victims participate in criminal proceedings, particularly of mixed tribunals, e.g. Special Courts of Sierra Leone.

Generally speaking, a common law witness helps the argument of a party (albeit the prosecutor or the defendant) and a civil law witness helps the investigating judge to find the "truth" of the matter.

Put simply, a complainant files a complaint to the office of prosecution, requesting that the prosecutor charge a particular defendant with a crime.

As either a witness or a complainant, one is not a party to the criminal proceeding and does not have access to the case files (or dossiers) or rights to any reparation (material, moral or otherwise). Here, the parties are only two: (i) Prosecutor v. (ii) Defendant.

Civil Party

The ECCC is unprecedented in giving the choice for a victim to become a civil party. No other mixed tribunals have such provision. In addition to the ECCC, the only other court, addressing mass crimes of international nature that permits civil party, is the International Criminal Court (and the ICC is an "international", and not "mixed", tribunal).

Unlike victim as a witness or victim as a complainant, victim as a civil party is a party to the criminal proceeding(s). Here, then, the parties are: (i) Prosecutor and (ii) Civil Party v. (iii) Defendant.

As a Civil Party to the criminal proceedings, one has most if not all the rights as a party: access to the case files (or dossiers), reparations etc.

How to become a civil party

How does a victim become a civil party normally and particularly with the ECCC?

First, there has to be a charge of a crime against a person by the investigating judge.

Second, there has to be an injury suffered by the applicant; it has to be a "legal" injury (for it to be admissible) in that the injury must be (i) physical, material and/or psychological and (ii) the direct consequence of (legal nexus/linkage to) the offense against the charged person.

At the ECCC, the Co-Prosecutors have forwarded five names to the Co-Investigating Judges ("CIJ"). The CIJ has publicly made known and charged two suspects, Kaing Guek Eav (alias Duch) with crimes against humanity, and Nuon Chea with crimes against humanity and war crimes.

Prior to these charges of the CIJ, it is possible to be a witness or complainant, but not possible to be a civil party (as there have been no charges); without the known offenses (crimes against humanity and war crimes) and persons (Duch, Nuon Chea), there's nothing or no one to link the applicant’s injury to.

Now, it is possible for a victim to become a civil party, either to the charge against Duch, or to the charges against Nuon Chea. And in the future, should the CIJ charge more person(s) with offense(s), a victim can join as civil party to that offense and person.

Example

To give concrete form to these concepts, below is the bulk of my civil party application (1 ½ pages in English) to the Office of CIJ which has been accepted:

I am applying to be joined as a Civil Party to the criminal proceedings and support the prosecution against Mr. Nuon Chea. Mr. Nuon Chea was arrested and provisionally detained by the ECCC on Wednesday, 19 September2007, on charges of crimes against humanity and war crimes committed in Cambodia between 1975 - 1979 ("Alleged Offenses").

As former Deputy Secretary of the Democratic Party of Kampuchea (or informally, the "Khmer Rouge") during this time, Mr. Nuon Chea was responsible for the Khmer Rouge forces under his effective command, control and/or authority as a result of his instructions or failure to exercise control properly over these forces.

I am a child female victim of the Alleged Offenses committed by and/or attributable to him during that time period.

As a direct consequence of the Alleged Offenses, I (at the age of4-8 years), among other things:

(a) lost my father, who was a victim of forced disappearance and was murdered by officers of the Khmer Rouge;
(b) was, together with my family, forcibly evacuated from Phnom Penh to Svay Rieng Province by officers of the Khmer Rouge;
(c) was imprisoned in Bung Rei in Svay Rieng Province for a period of approximately 5 months by officers of the Khmer Rouge;
(d) was deprived of access to food, medicine, education and other necessities by officers of the Khmer Rouge;
(e) suffered torture and other cruel or inhuman treatment by officers of the Khmer Rouge;
(f) witnessed other prisoners being tortured and/or murdered by officers of the Khmer Rouge;
(g) witnessed my mother being tortured or subjected to cruel and inhumane treatment by officers of the Khmer Rouge; and
(h) lost my mother, who was a victim of forced disappearance and was murdered by officers of the Khmer Rouge.

In the circumstances, I personally suffered physical, material and psychological injury and would like to participate in the criminal proceedings against Mr. Nuon Chea (and in the future, against any other senior Khmer Rouge leaders charged with crimes against humanity, war crimes and/or genocide).

Administration of Civil Party applications

Because many Khmers suffered as victims within the definition of a "civil party" and theoretically the Office of the Co-Investigating Judges may receive tens of thousands of applications requesting to become a civil party, the process can be administratively messy and unworkable. Hence, to lessen the administrative burden of and give order to this process, it is immensely important that victims who apply to be a civil party (i) use the standard form of the ECCC, and (ii) join a group or association with representation.

For example, civil party applications can be grouped by (i) zones, e.g. Eastern Zone, (ii) status, e.g. Orphans (victims, who under 18 years, lost both parents during 1975-79), (iii) etc.

The ECCC will soon have a working Victims Unit. Also, the Cambodian Human Rights Action Committee ("CHRAC") is interested in acting as a clearinghouse for victims (as witness, complainant or civil party). The Center for Social Development, in association with and as a member of CHRAC and on its own, will focus on assisting those who are only interested in becoming a civil party (as a matter of division or labor, making the process more concretely and manageable). I, in my personal capacity already as a civil party, am interested in representing those individuals, who as a child (under 18) lost both parents.

Unprecedented, awesome opportunity

The opportunity provided by the ECCC for victims to become a civil party is truly awesome and should be thoughtfully and meaningfully taken by any Khmer who wish to (i) bring justice (to whatever degree) for and in the memory of loved ones who died, and (ii) force charged senior Khmer Rouge leaders to own up to the horrific crimes which unfolded from which we are yet trying to recover, even almost 30 years later. This is not an issue of revenge, but of justice and responsibility.

Theary C. SENG, a member of the New York Bar Association, former director of Center for Social Development (March 2006—July 2009), founder and Board of the Center for Justice & Reconciliation (www.cjr-cambodia.org), founding adviser of the Association of Khmer Rouge Victims (www.akrvc.org), is currently writing her second book, under a grant, amidst her speaking engagements. For additional information, please visit Theary's website at thearyseng.com.