Abstract
Providing ‘justice for victims’ has become a common argument for the establishment of international criminal tribunals. However, the victims’ role in trials of mass atrocities is highly disputed among scholars and practitioners. This article will take a look behind the theoretical understanding of ‘justice’ and present the views of victims, judges, prosecutors and lawyers involved in the proceedings. Based on 30 qualitative interviews that have been conducted at the Khmer Rouge Tribunal in Cambodia, this article attempts to examine what elements of justice an international(ized) criminal trial can and should achieve from the perspective of its participants. An insight into the victims’ and legal professionals’ expectations for justice sheds light on the question to what extent ‘justice for victims’ is a feasible interest of internation(ized) trials or a mere symbolic label to legitimize international courts. Considering the financial and practical constraints of international criminal courts, the article endeavours to identify measures both in and out of the courtroom that balance the interests of all participants.
Keywords
Introduction
It is the victims and affected communities who are the ones to determine whether or not justice has been done. Victims are the Court’s raison d’être. (Silvana Arbia, Registrar of the International Criminal Court)
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In the past decade, providing ‘justice for victims’ has become a commonly used argument for the importance and purpose of trials of mass crimes (McCarthy, 2012). International and hybrid criminal tribunals have increasingly referred to ‘justice for victims’ as the rationale for their mandate (Elander, 2013: 95). In the case of Katanga and Chui at the International Criminal Court (ICC), the prosecution explicitly stated that their ‘mandate is justice; justice for the victims’. 2 McCarthy (2012: 353) observes that ‘justice for victims’ is prevalent in modern discourse on international criminal proceedings and that international institutions ‘invoke the language of justice for victims’ to justify their intervention. Many scholars identify victims’ interests ‘as the dominant commitment of international criminal justice’ (Findlay, 2009: 203).
While ‘justice for victims’ has immense symbolic power, the practical experiences of victims’ participation at international(ized) criminal courts tell a different story. After early enthusiasm about victims’ participation (McCarthy, 2012), there appears to be a tendency towards restricting victims’ procedural role in international trials. Referring to ‘victims’ as the raison d’être for international courts thus seems to be more symbolism than reality. Although a more humanitarian approach has strengthened the role of victims in international criminal proceedings, victims’ participation in trials of mass crimes is still highly disputed among scholars and practitioners. Opinions about the victims’ legitimate role in the proceedings and the scope of rights a court should attribute to the victims still differ significantly. The discrepancy between the terminology used and the reality of victims’ participation raises the question of whether ‘justice for victims’ is indeed a substantial and feasible interest of internation(ized) trials, or merely a symbolic label to legitimize international courts.
Justice for victims as an aim of international criminal trials
The discussion on the scope and value of victims’ participation touches on a fundamental question of international criminal law: how to reconcile restorative and retributive elements of justice in trials of mass crimes (Mantle et al., 2005). Since international(ized) tribunals operate in the context of transitional justice processes, providing ‘justice’, reconciliation and reparation might be seen as evolving aims of international trials (Aertsen et al., 2013). The approach of restorative justice that puts emphasis on the needs of the victims and the involved community instead of focusing solely on punishment has received considerable attention in the criminological literature (Mantle et al., 2005). Its ambition to promote forgiveness, healing and understanding might add a valuable new component to international(ized) trials. Thus, many scholars have considered the development of victim participation as an important achievement (Baumgartner, 2008; Bitti, 2011; Bitti and Friman, 2001; Findlay, 2009; Van den Wyngaert, 2011). Hearing the voices of victims in trials of mass crimes is often described as significant progress from the exercise of purely retributive justice to a model of restorative or reparative justice (Fernandez de Gurmendi and Friman, 2001). Scholars observe a ‘trend toward restorative justice at the international level’ that promotes national reconciliation and closure for victims (see, for example, Turner, 2009). Findlay (2009: 189) understands the integration of victims into the process as a necessary prerequisite for the legitimacy of international criminal courts: ‘International criminal justice has no choice but to move towards a victim constituency if its legitimacy and functional relevance are to be confirmed beyond the authority of legislative instruments and sponsor agencies.’ Advocates of victim participation argue that their involvement in trials helps victims to achieve healing, rehabilitation and empowerment (Danieli, 2004; McKay, 1999; War Crimes Research Office, 2007). Their participation would further contribute to national reconciliation since their impact on the proceedings increases the acceptance of judgments rendered by the courts (Stahn et al., 2006). De Hemptinne (2010) distinguishes three main effects of victim participation on international(ized) trials: a reparative, a symbolic and a judicial effect. Giving victims a ‘say’ in the proceedings could render the tribunal’s work more transparent and accessible for victims (Doak, 2005). Granting victims the right to convey their suffering and claim compensation might also help victims recover from the harm experienced and receive ‘justice’.
In the light of the academic debate on the aims and purposes of international criminal justice, this article intends to elucidate the meaning of ‘justice’ in the practice of international(ized) courts. The experiences at the Extraordinary Chamber in the Courts of Cambodia (ECCC) will help to assess the general capacities and practical limits of a tribunal in providing justice for victims. This article will take a look at the theoretical understanding of ‘justice’ and present the views of both the participating victims and legal professionals. Based on a qualitative study conducted at the ECCC in Cambodia, this article attempts to examine what forms of ‘justice for victims’ an international(ized) criminal trial can and should achieve from the perspective of its participants. An evaluation of victims’ understanding of ‘justice’ will shed light on their particular needs in trials of mass crimes. Contrasting their ideas with legal professionals’ concepts will reveal both consensus and disparity about the meaning of ‘justice for victims’ in international law.
This article thus aims to explore the value of international(ized) proceedings in achieving justice for victims. On the basis of the continuing discussions on the challenges and opportunities provided by international trials, the article attempts to identify possible means, both in and out of the courtroom, to fulfil victims’ expectations in transitional justice processes.
The role of victims at the ECCC
The rights of victims in international criminal proceedings have significantly evolved since the early establishment of the ad hoc tribunals for the former Yugoslavia and Rwanda. Following the Anglo-American legal system, the victims’ role was initially limited to serving as witnesses in the trial. With the adoption of the Rome Statute of the International Criminal Court, victims were given the right to participate in the proceedings by expressing ‘views and concerns’ through their own legal representatives (Chung, 2008). The ECCC – a hybrid court set up in 2006 to prosecute the crimes of the Khmer Rouge period between 1975 and 1979 – went one step further and granted victims the status of legal parties to the proceedings. During the Pol Pot regime, an estimated 1.7 million people died in Cambodia. Since almost one-quarter of the population lost their lives, most Cambodians who lived under the Khmer Rouge consider themselves ‘victims’ (Pham et al., 2009).
In the ECCC’s first case (‘case 001’) against Kaing Guek Eav, alias ‘Duch’, who was in charge of the notorious torture prison Tuol Sleng (S-21), 90 victims – both survivors and relatives – participated in the proceedings; 78 were recognized at the end of the trial. 3 After 72 days of hearing evidence, the Trial Chamber convicted Duch on 26 July 2009 for crimes against humanity, as well as grave breaches of the 1949 Geneva Convention, and sentenced him to 35 years imprisonment. 4 His sentence was reduced to 19 years, taking into account prior periods of detention at the ECCC and illegal detention by the Cambodian Military Court between May 1999 and July 2007. The Supreme Court Chamber overruled the Trial Chambers judgment and sentenced Duch to life imprisonment. 5 In the tribunal’s second case (‘case 002’) 6 , which commenced in June 2011, against the most senior leaders of the Khmer Rouge regime, almost 4,000 victims were admitted to participate as a Civil Party in the proceedings. 7 The accused are charged with crimes against humanity, genocide, war crimes and other crimes under Cambodian law.
According to Rule 23 of the ECCC-Internal Rules, victims are an independent party to the proceedings, entitled to ‘participate in criminal proceedings’ and to ‘seek collective and moral reparations’. Their right to participate entails, inter alia, the right to call witnesses, to access the case files, and to make written submissions on all aspects of the trial (Kroker, 2010). After a controversial ruling by the Pre Trial Chamber, 8 all oral submissions on behalf of the Civil Parties were made by Civil Party lawyers. Via their lawyers, victims were able to question the accused and witnesses. In Case 001, four teams of Civil Party lawyers – each consisting of at least one national and one international lawyer – represented the Civil Parties in the courtroom. The participation of up to eight Civil Party lawyers in the examination of witnesses and evidence caused significant delays in the proceedings (Staggs Kelsall et al., 2009). To streamline the trials, the ECCC substantially modified the procedural rules for Case 002. Victims no longer individually participated in the proceedings, but exercised their rights as a ‘consolidated’ group. Two so-called Lead Co-lawyers were appointed to assume the responsibility of an overall strategy and in-court presentation of Civil Parties’ interests at the trial and appeal stage.
During case 001, 22 Civil Parties testified in the trial. Those who did not make a personal statement still had the opportunity to follow the proceedings from inside the courtroom, owing to an enormous effort by local and international NGOs, which brought Civil Parties from all parts of Cambodia to Phnom Penh. Furthermore, regional forums and district meetings were held to inform Civil Parties about the developments at the ECCC.
The founders of the ECCC failed to provide an adequate budget for victims’ representation or reparation (Kroker, 2010). Although the court’s Internal Rules set out a Civil Party participation scheme, the ECCC neglected to financially support its practical implementation. NGOs and external donors finally stepped in and funded Civil Party lawyers who worked directly with the victims. Intermediary organizations also took on the responsibility of facilitating outreach activities and supporting victims’ travel to the court. The ECCC’s later established Victims Support Section increased its efforts from case 001 to case 002, and organized several Regional Forums to inform victims about the ongoing trials and enable discussions between lawyers and the Civil Parties. Although support for victims and their lawyers has improved, the Court still depends largely on NGOs to host meetings or bring Civil Parties to Phnom Penh (Elander, 2013).
The Civil Parties’ right to seek compensation at the ECCC is restricted to ‘collective and moral reparations’. 9 A deviation from national Cambodian law, according to which a victim can pursue a civil claim for individual compensation for injury suffered in criminal proceedings, was deemed necessary ‘in view of the large number of Civil Parties expected before the ECCC, and the inevitable difficulties of quantifying the full extent of losses suffered by an indeterminate class of victims. Reparations before the ECCC were therefore intended to be essentially symbolic (aimed at conferring official recognition upon victims, and assisting to restore dignity and preserve the collective memory) rather than compensatory’. 10 Since the ECCC was not entitled to grant individual financial reparation, the Civil Parties submitted requests for moral and collective reparation in the form of stupas, memorials, religious ceremonies, free access to healthcare, hospitals, roads, schools and an official public holiday. Faced with the legal limitation that reparation could only be ordered against the convicted person 11 – who was indigent – the Trial Chamber took a more restrictive approach. It granted only two measures of reparation: it attached a list of all names of the accepted Civil Parties and agreed to compose and publish a compilation of all statements of apology made by Duch during the trial.
Although Civil Party participation had been known in civil law systems, 12 there was no experience with the model on an international level. The innovative approach taken by the ECCC presented a challenge to the parties involved in the trial. Since the actors could not rely on previous experiences with a Civil Party system in international(ized) trials, uncertainties about how to adequately provide justice for victims of mass crimes arose. Empirical research results have made the importance of justice and its meaning for victims and legal participants clearer.
Methods and approach of the empirical study
Several quantitative studies were conducted after the first trial at the Khmer Rouge Tribunal to assess its success rate and the overall satisfaction of the Civil Parties (Kirchenbauer et al., 2013; Pham et al., 2009, 2011; Stover et al., 2011). These studies provide general inferences that reflect victims’ views on their participation in the trials and their attitude towards the ECCC. In most cases, they portray victims’ experiences with the court as being overall positive. However, owing to the nature of quantitative research, it is not entirely clear what individual victims expected from their participation – in their own words – and to what extent these hopes and expectations were realized. Insights from individual Civil Parties through a qualitative study can provide greater depth of understanding about how victims viewed the proceedings and their own experiences with the court.
Thus far, the view of professional parties on Civil Party participation has not been considered in any previous studies. The inclusion of those standing on the other side of the proceedings in the research could provide a more holistic understanding of the Civil Party participation at the ECCC, allowing an evaluation of the procedural and legal aspects of the court proceedings in addition to the ‘human side’.
With the results as well as limitations of previous studies in mind, the University of Marburg conducted a qualitative study in Cambodia in the summer of 2012. The study ‘Victims in trials of mass crimes: A multi-perspective study of Civil Party participation at the Extraordinary Chambers in the Courts of Cambodia’ explores the value of Civil Party participation, complementing and further examining the results of previous research (Hoven et al., 2013).
Qualitative in-depth interviews were used to investigate the attitudes, motivations and perceptions related to Civil Party participation at the ECCC in the most open way possible. In contrast to quantitative studies, qualitative research does not intend to achieve statistical representativeness but aims at providing an in-depth understanding of complex social processes. The qualitative paradigm seeks to grasp a phenomenon from the viewpoint of respondents, by reconstructing the meanings attributed to the experience of the situation being researched. The scientific value of studying smaller samples thus lies in the opportunity to explore meanings, coherences and values that cannot be explained numerically (de Vaus, 1996; Marsh, 2004; May, 1997).
Fieldwork was conducted between June and November 2012, with a total of 30 interviews undertaken in Cambodia. 13 The sample distinguishes itself through representing the views of Civil Parties on the one hand, as well as legal parties and non-governmental organizations (NGOs) on the other. The number of interviews conducted with each of the parties was determined by, first of all, the size of their ‘population’ and, secondly, by the principle of saturation, because, depending on their role, they contributed differently to the overall research question. In order to capture a broad range of opinions, 12 Civil Parties, 14 eight Civil Party representatives, four judges, three prosecutors and one defence lawyer were interviewed. Within the boundaries of possibility, a fair mix of age, gender, place of residence, Civil Party status, engagement as well as legal background in common law or civil law (if applicable) was selected. 25 The interviews with the victims took place mainly in Phnom Penh using settings offered by the recruiting NGOs. 15 However, a few Civil Parties coming from rural areas were interviewed in their villages. That way bias related to the inability to travel (older victims, victim in poor medical condition) could be avoided.
In order to interview the ‘professional’ parties, confidential settings – outside or inside the court, depending on personal preference – were chosen in order to minimize social desirability effects. Whilst the intention was to conduct the research face-to-face, five participants had to be interviewed via telephone owing to insuperable physical distance.
The (on average) 60 to 90 minutes’ long one-on-one interviews were recorded with a dictation machine for the purpose of later analysis. Since only one of the victims spoke English, a local interpreter – a trained researcher himself familiar with the topic – was present during the Civil Party interviews translating from Khmer into English and vice versa. The interviews with the ‘professional’ parties were carried out in English, except for one in French. The recordings were transcribed by a third party and subsequently checked against the audio file by a member of the research team.
The guidelines for the semi-structured interviews address the key issues identified by previous quantitative studies – such as expectations, satisfaction, understanding and the concept of justice. 16 In these studies, ‘justice’ was named a key motivator to participate in the trial and one of the victims’ major expectations (Pham et al., 2011). However, owing to the nature of the methodology of quantitative studies, it remained unclear what victims considered to be ‘justice’. The in-depth interviews conducted for this study intended to explore the meaning behind the term ‘justice’ as the participants understood it.
The interviews were analysed following the inductive approach of ‘grounded theory’ whereby hypothesis or concepts emerge from the data during the process rather than being pre-defined (Glaser and Strauss, 1967). After identifying the main categories, corresponding text segments were inserted into a matrix of categories and interviewed parties. 17 Since the in-depth analysis of the categories was divided among three researchers, a pre-test was conducted checking similar assignment of text segments to the categories. Hence the coding instructions and categories were refined continuously. As part of the in-depth analysis, the data matrix was analysed horizontally – identifying interrelations between categories – as well as vertically – comparing and contrasting impressions from the different parties. Finally, the research team cross-checked the condensed results against the original transcripts.
How do victims understand justice?
As mentioned above, ‘justice’ was identified as a key theme in previous research (Pham et al., 2011). However, these studies seem to have presupposed a common understanding of the term. Their results did not disprove this assumption since research of a quantitative nature – which most of them were – leaves little room for ‘surprise’ in this regard.
Since this study exclusively explores the perspective of victims who actively participated in the trials, their understanding of justice is likely to be shaped by their expectations for a criminal trial. Unlike previous studies that address the needs of victims in general, the findings will focus on forms of justice that can be achieved through criminal trials and might not entail broader hopes for peace-building and transitional justice. 18
In order to understand this question, the present study did not expose interviewees to statements about justice which they were asked to confirm or disconfirm. Instead, interviewees examined the concept within the specific context on a reactive basis, letting the victims put it into words. Despite not prompting the term, it ran like a golden thread through most interviews when talking to the Civil Parties about their participation in the trial. The interviewed victims mentioned the concept on average ten times over the course of their conversation – one of them as many as 24 times. Most Civil Parties interviewed first referred to justice in the context of their reasons to participate in the trial after narrating their suffering: I lost all my family members in the Khmer Rouge Regime, and I heard about the existence of ECCC, which finds justice for people who suffered in that evil regime.
Finding justice did not only seem to be the driving force for participating, but at the same time was one of the main expectations regarding the outcome. One of the interviewed victims described her hopes as follows: I was extremely glad since I thought that I will be given justice to myself and my lost family members.
A member of an NGO confirmed this, stating that he observed justice to be a main expectation when interacting with the victims. Civil Party lawyers used the term when describing their clients’ concerns, on the one hand, and when describing what they wanted to accomplish for them, on the other (‘I want to give him justice’).
The almost inflationary usage of the term raised the question of what is actually meant by justice, and whether it means the same thing to all parties and individuals involved. Henry (2009) observed that victims’ hopes for justice in criminal trials differ substantially: ‘In the aftermath of armed conflict, justice is elusive, variant and deeply personal.’ In order to approach the meaning of justice for victims participating in the ECCC trials, interviewees have been asked to define what they understood by justice once they had mentioned the term. This was an attempt to expose a more tangible meaning of the word ‘justice’, in order to comprehend what the victims seek for participating in the trial. The answers indicated that, although used naturally, there seemed to be a lack of clear and common understanding of the term among the victims, as well as NGO members, as the following quotes illustrate: Justice is served in many different ways. And it’s not the obvious, the sentencing of the defendant, but comes in many different forms. Many people have their own view about what justice is … So what is justice … I don’t know.
Other Civil Parties, however, had a rather precise conception of what justice meant to them. While to some the accused was the subject of their idea of justice (‘By justice I mean the court should punish’), others related justice to themselves (‘Justice for me is the balance, I mean, to make sure that there is something to have me recover from missing my relative’). Additional emerging dimensions of justice were described as the Civil Parties’ wish for ‘justice for my relatives’ and even ‘justice to the country’. This showed that merely expressing the wish for justice only provides a ‘fuzzy’ picture of victims’ expectations, since one does not know to whom justice was intended to be given, and in what form.
Whilst the importance of the term justice was identified in previous research and served as the basis for this study’s guidelines, the aim was to create a new, more differentiated and thorough concept of justice, taking into account its diverging interpretations expressed by the interviewees. Having explored the different meanings of justice and the respective hopes attached to them, the empirical research identified four main dimensions based on the victims’ answers: (i) punishment for the accused; (ii) recognition and compensation for the CPs; (iii) clarification and honour for the dead; and (iv) truth and prevention for the country. 19
Those four dimensions provide clusters for the similarities in the interviewed victims’ understandings of justice in terms of four distinctive yet not exclusive conceptions of the term. Some of the interviewees united more than one of the four dimensions under their idea of justice; others equated it with just one.
Whilst some of the interviewees explicitly and in an unsolicited way expressed their expectations – for example, compensation in the form of money – others paraphrased the same thing as ‘justice for themselves’. Only when asked directly did they explain that what they meant was monetary compensation. Furthermore, there were interviewees who named justice in addition to one or more of the four explicit dimensions: ‘First, I did expect that justice will be provided … Second, I did expect to get mental and financial reparation’. To this Civil Party, ‘justice’ stands for ‘punishment’, as she explained, and thus corresponded to the dimension ‘justice for the accused’: recognition and compensation did not belong to her conception of justice and yet they were expectations, expressed explicitly in the same context.
The following paragraphs illustrate which statements formed the four dimensions, and depict subtle distinctions and deviations amongst interviewees.
(a) Justice for the accused – victims’ need for punishment
‘Justice is to punish Duch’ – as claimed by one of the Civil Parties – can serve in two ways with regard to victims’ understandings. First of all, it can refer to justice in a legal sense – meaning sentencing the accused for what s/he has done in the past. The vast majority of interviewed victims mentioned at some point (unaided) that this was what they expected from the trial. One of them put it in a nutshell: We were expecting that Duch would … receive a life imprisonment because we just don’t care how long or how many more years he lives, but we just want to make sure that he will die in prison.
Apparently, the Civil Parties expressed this expectation very clearly not only to the interviewer, but also to their lawyers, as two of them confirmed: They want to see the accused to be sentenced; they really want that because like they … don’t want the killer to be free, it is the main point for them. The victims they want the maximum. They just want him to die in jail.
As reflected in the quotes, the Civil Parties did not strive for some substantive sentence but quite frankly for a life sentence for Duch. However, their idea of ‘punishing’ Duch could go beyond a life sentence, since this is not, in the view of some respondents, ‘enough justice’. About half of the interviewed victims mentioned some sort of punishment they wished to be done to Duch which would not being part of a legal trial. One interviewee demanded: The court should do something to make sure that Duch experiences, if not the same, it should be similar to what they did to us victims at that time.
The range of what exactly this entailed went from ‘wearing very dirty clothes just like we did in the past’ to being ‘punished into forced labour’ or even ‘we want to see him punished and tortured’. Although they were aware or were made aware that such punishment was not part of the trial, they did not seem to be able to eliminate such thoughts completely. As you may know, the Civil Party will immediately want to kill the accused because [he] was very cruel to the family and the victims, but the lawyer tried to explain that … you cannot do like this and like that you have to go by the law in order to be punished by the law.
Although not expressed directly, revenge seemed to be part of some of the Civil Parties’ conceptions of justice, and thus formed their expectations. A previous, quantitative study showed similar tendencies, as 40 percent of the interviewed victims admitted to wanting to seek revenge if they could, and more than 70 percent wished to see the accused hurt or miserable (Pham et al., 2009). Hopes for reconciliation, in contrast, were not mentioned in this study by the Civil Parties interviewed. On the contrary, some victims stressed that they did not want to forgive Duch after what he had done. A lawyer strengthened this position by saying: ‘I am not seeing they expected reconciliation; I don’t think they expected that at all’.
Experiencing Duch being punished adequately emerged as one of the key expectations of the participating victims. However, their idea of an ‘adequate’ punishment somewhat exceeded the scope of the law, and thus might inevitably end in disappointment.
(b) Justice for themselves – recognition and compensation
Victims expressed the desire to counterbalance the ‘injustice’ experienced under the regime, not only by punishment (as a ‘negative’ form of justice), but also through individual and collective reparation (as a ‘positive’ form of justice).
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Justice for me is the balance I mean to make sure that … there is something to have me recover from the missing of my relative.
While the above quote indicates what victims wished for in a rather abstract manner, others described their expectations more concretely. Often the interviewed victims first expressed those expectations carefully and more generally ‘disguised’ as justice for themselves and substantiated their thoughts over the course of the interview. The key theme emerging within this dimension was reparation. On average, each of the interviewed victims mentioned the term 12 times during the interview. The vast majority first named it unaided when asked for their expectations from the trial: I think this court should be able to finally provide and support … people who are sick – For example people like me, because of forced labour during that regime I became ill. I became sick since that period of time, and I started hard labour when I had a very young baby.
Their poor economic situations and subsequent concerns seemed to be the prevailing driver of their expectations, de-prioritizing everything else, including collective reparation: Individual reparation to me is more important, I also want … collective reparation but I want more individual reparation.
Most of the victims had a clear vision of what they would need the money for: I asked for monetary compensation, but not much, to prepare the ceremony for those who died … I expected that I could at least be granted a small amount of money which is around 200$ to 300$ or 400$ to 500$.
Although at least some of the interviewed victims had been told explicitly that the ECCC would not grant individual reparation; their hope for compensation remained strong and led them to ignore the limits of the court: I understood what he explained to me, but I lost it all after that. I only care about the individual compensation that I wish for.
Only one out of all the interviewed Civil Parties explicitly said he ‘had no intentions to ask for financial reparations’, which might be explained by his Western origin since he was probably not confronted with poverty in the way the Cambodian victims were.
Interestingly, Lambourne’s (2009) study in Cambodia does not identify the need for reparation as a prevailing element of ‘justice’. Lambourne concludes that only ‘a minority of Cambodian interviewees mentioned the concept of social or economic justice’ (Lambourne, 2009: 43). These different findings might indicate that the hope for reparation was partly raised during the trial. NGOs and lawyers who advocated a trust fund for collective and individual reparations could have created expectations among victims and changed their understanding of ‘justice’.
Another form of compensation some victims felt they ‘deserved’ after what they had been through is ‘reparations … related to psychological treatment’. Although not as prevalent as financial claims, this ‘psychological justice’, as one of them called it, seemed to be a motivator not to be underrated. They saw the judge as the responsible person to make sure they recovered from their (self-reported) psychological trauma. This expectation seemed to go beyond the wish for mental relief through merely telling their story towards individual psychological therapy. Nevertheless, the attention and acknowledgement attached to telling their stories to a broader audience seemed to be a crucial motivator for participation, according to several NGO members and Civil Party lawyers. One of the interviewees from the Co-Lead lawyer section from case 002 described their observation as follows: I think some of them were … waiting for a very long time to tell their stories. I know that from civil parties, but also from many … people in Cambodia [who] were just waiting to have some kind of internationalized procedure, institution where they could come forward and tell what happened to them; I think many, many people were waiting for that.
Overall, many Civil Parties understood ‘justice’ as being compensated individually for their (individual) suffering, depending on their specific needs in the form of money, healthcare, psychological treatment, and mere attention for their cruel fate. The wish and the need for the former seemed to be so strong that it somehow repressed knowledge about it not being possible.
(c) Justice for the dead – clarification and honour
Almost half the victims said they wanted to know the truth about what happened to their relatives. This seems to be another part of their conception of justice: I feel I want justice … if I can find truth and the real reason why my husband was killed and how and then I think this is justice.
One of the interviewed lawyers confirmed this, adding that they specifically expected to get information about their loved ones from Duch – assuming that he would remember the arrested individuals. Eliminating the uncertainty around their relatives’ death was considered important for the spirit of the dead, and likewise for the mental health of the Civil Parties.
In addition to seeking the truth, the majority of the interviewed victims expressed the wish for something to honour and remember those killed. Unfortunately, having conducted the interviews in retrospect, it could not be asserted with certainty whether the wish for such so-called collective and moral reparations stemmed mainly from their communication with the Civil Party lawyers. The following quote from a victim speaks in favour of that assumption: I was informed during the meetings with the NGO and with the lawyers about the collective reparation and then they ask us to brainstorm about what kinds of collective reparation do we want.
The participating victims were asked what kind of collective reparations would be meaningful to them, which explains their precise expectations: In my province they just have a stupa, a memorial which is not well taken care of now, and I want the preservation, so restoration of this stupa memorial. And I want a library which still can have books of history about Khmer Rouge and about the ECCC. I think we should get reparation just like memorial or stupas and some cash so that we can use this money to perform religious ritual and basically we want Duch to compensate to everyone.
The third quote illustrated how the three dimensions of justice discussed so far – justice for the accused, justice for the Civil Parties and justice for the dead – are linked to one another. The interviewed victims claimed individual and financial compensation paid for by the accused as a form of punishment, which they intended to use (at least to some extent) to honour their relatives. However, the hierarchy of importance seemed to be in favour of the dimension of justice for the Civil Parties as this interviewee clarifies: First, I did expect that justice will be provided to me. Second, I did expect to get mental and financial reparations. Also, I hoped to gain the mentioned statue which inscribed all the names of people who died in the Khmer Rouge Regime since it is counted as one important representation as well.
(d) Justice for the country – truth and prevention
The expectation of finding out the truth did not always exclusively serve the purpose of giving justice to the dead. A few Civil Parties also sought justice for Cambodia as a whole; one woman, for example, wanted to ‘find justice for not only the family, but also to give justice to the country and find the fact that this is what happened in the regime’. To understand what happened during the Khmer Rouge regime seemed to strengthen the victims’ hope that the atrocities they experienced were not going to happen again. The anxiety of history repeating itself is assumed to be a general concern of many Cambodians. However, this was not the major motivation to participate, as expressed by the interviewed victims, especially compared to the first three dimensions.
‘Justice for victims’ through participation in the trial?
In the light of the four dimensions identified, the question arises as to whether participating in a criminal trial can help victims to achieve justice. The study examined victims’ understanding of their procedural rights, and the importance they attached to their formal legal standing in the trial. In a second step, the study evaluates to what extent victims’ expectations for justice have been satisfied through the proceedings.
(a) Being a Civil Party – is a legal standing important?
At the ECCC, victims were granted the status of a legal party in the proceedings. Active participation by victims was intended to empower victims of mass crimes by giving them a voice in the trials. The question arises what importance victims attached to their legal status and whether their formal rights as Civil Party were perceived as providing justice.
The majority of the Civil Parties interviewed had a very low understanding of their role in the proceedings. Most respondents could not name specific procedural rights and incorrectly described their role as a mere passive one: Civil Parties have the right to attend and listen but not go to talk or argue. We have the right to come to the hearing and then listen to a party discussing and debating.
Complex legal issues were difficult to understand for most of the interviewed Civil Parties. Many victims felt overwhelmed by the proceedings and the information given to them: I don’t know how to say it, so I just leave this one to the judges, to the court, and to the lawyer to decide. It was so difficult to understand all the legal terminology and decisions. It was probably because I lost the participation in the trial.
Difficulties became apparent when the Civil Parties were asked to describe the respective functions of the other parties to the proceedings: most of the respondents were unable to explain the different responsibilities of judges and prosecutors.
The overall impression the Civil Parties conveyed was one of low interest in, and limited understanding of, their procedural rights. When asked about the most important advantages of their rights, respondents mentioned benefits that were merely a side effect of their legal status, such as being invited to Phnom Penh, receiving free accommodation, and small give-aways, such as pens and bags from NGOs. One lawyer confirms that impression as follows: I think for some of them the most important thing really is to come to Phnom Penh; I mean we have to be frank, they are very poor, they’ve never been here, they think it’s great to have a bus ride, and they are in Phnom Penh, and then they get a free lunch. I think for many it’s that. But I think that gives them the feeling that they are important, that someone is taking them here. So I don’t know if they really are thinking ‘Oh, I’m a Civil Party to the proceedings’ when they come because I think they have so many other exciting things next to it, that it’s a part of everything.
(b) Has ‘justice for victims’ been achieved at the ECCC?
Summing up the expectations of the Civil Parties, the results of the study showed that the interviewed victims did not primarily want to participate for the sake of being a legal party, but seemed to consider the trial a chance for a better life: I expected that we can have happy life after the trial.
Whether such great hopes – or ideas of justice – on behalf of the victims are at all possible to be fulfilled by mere participation in a legal trial seems questionable. One of the interviewed legal parties phrased those doubts as follows: Quoi que ce passe, elles ne pouraient jamais obtenir ce qu’elles souhaitaient et il faut toujour rester conscient de ça, il y aura toujour une certaine frustration pour les victimes.
21
One of the main understandings of justice was to see the accused being punished. Since Duch was sentenced to life imprisonment in the final judgement, all the interviewed Civil Parties expressed their satisfaction with the verdict. Had this decision been any different, the disappointment would have been tremendous, and in fact was so after the trial judgement. One of the victims described her feelings: ‘I am very relieved and happy to learn about life imprisonment. The trial judgment just made me mad.’ Nevertheless, victims’ conception of justice for the accused entailed more than ‘only’ a life sentence, which is why some of them still felt partial discontent with regard to Duch’s punishment: I think that we all were happy because we learned that [he] will be in prison until he dies. But still we want to see him punished and tortured. I’m still very disappointed; though Duch is arrested and in jail he still enjoys kind of a better life than those victims who he arrested during the Khmer Rouge Regime. For example, he has enough to eat, he has very nice clothes and that sort of thing.
Seeing the accused well-dressed in court enjoying food and healthcare, as opposed to them as victims fighting for survival, understandably conflicted with their idea of punishment and justice: There is still lack of justice. Of course, the accused had a medical care when he was sick or had fever during the hearing, but the victims got no paid attention when they were sick.
But by far more critical than the above-mentioned issue was the disappointment attached to justice in the form of reparation. Neither did the participating victims receive the desired – yet not promised – individual reparation, nor have they been granted the collective and moral reparation they discussed with their lawyers. The interviewed victims did not seem to have anticipated this outcome and still do not fully understand the reasons: When I listened to the judge announcing his decision, which is without any collective or individual compensation, I felt very disappointed and hopeless. Currently, I don’t have any feelings from the court because there is no compensation granted. I agree with the court’s judgment, but I have no feeling and confidence over the court when it hasn’t awarded any reparation. I’m so hopeless. I know that the accused is sentenced to life imprisonment, but I do not get compensated.
The word ‘hopeless’ was used often in this context and gave an indication of the strong (negative) emotions attached to the outcome. One of the lawyers noticed the victims’ dissatisfaction, admitting: ‘They like the judgment but they still regret about the reparation because they really want something back from the accused.’
On the other hand, since some of the Civil Party lawyers and NGO members – intentionally or not – underestimated the importance of reparation for the victims in the first place, it is not a surprise that they did not (want to) see the dissatisfaction in all its entirety: I think that most of the time the fact that there is only collective and moral reparation was not fully an issue because we spoke with the victims and told them that.
How much even the smallest amount of money would have counted for the victims shows the answer of one of the interviewed victims to the question: What would you tell a friend who has been asked to participate as a Civil Party to expect from the trial? – Lawyers gave us some money for travelling and for the accommodation.
The question as to what extent their hope for psychological relief has been achieved cannot be answered validly through this study. 22 Most of the interviewed victims positively noted the attention given to them and their stories in court – although some overestimated the focus on them during the proceedings – but also outside the court when talking to their lawyers and even more so their NGO contacts. Whether this was enough to overcome their (self-reported) trauma seems questionable since the ECCC is a trial of mass crime whereby, contrary to domestic trials, the fate of an individual is not the focus.
The overall satisfaction with finding justice through the trial varied among the interviewed victims – the majority felt that at least some justice has been given: Actually I don’t know how to measure justice basically but I used to be in a meeting, and then I was given like on a scale of … to what extent of justice do you think is delivered for the victim they put ‘good, average and more average and poor’ for example like that, and then I say it is not good, and so I choose average. You know, because my expectation was to receive the individual reparation, and then it turned into collective reparation so it is average. Though some justice is not holistic, but at least I get some justice. To what extent did or did not the trial bring justice to the victims? – I think about 70 percent. I think I feel a lot relief after attending or participating in this; I think I have a better understanding of that and then I think justice is done to me.
It seems reasonable to conclude that for most of the interviewed victims ‘there is still lack of justice’, though not in the same manner and to the same extent. One of the interviewed judges expressed an even more negative opinion, almost questioning any significant value for the Civil Parties: For a very large number of reasons, I don’t think that it provides justice for victims to participate in a trial of mass crimes, except insofar as they learn more about what went on.
This quote raises the question how legal professionals understand the court’s responsibility to provide justice for victims. The study examines whether judges and prosecutors see the purpose of international(ized) trials exclusively in establishing accountability, or whether broader aims, such as justice for victims and the country, are considered part of international criminal justice.
How do legal professionals understand ‘justice for victims’?
Victims have expressed a broad understanding of justice that goes beyond the conviction of an accused. An insight into the legal professionals’ perspective reveals whether those responsible for the conduct of the criminal trial share the victims’ views on justice.
Legal professionals repeatedly referred to ‘justice’ when evaluating the success of victims’ participation at the ECCC and describing the aims of an international criminal trial. ‘Justice’ thus proved to be a key term in the assessment of the benefits and challenges of the Civil Party system. I welcomed the notion of, to me, the novel concept of victims having formal status in the trial. I welcomed that in theory, but in practice – in my view – it was not particularly successful as a way of providing justice for victims. (Judge)
Similarly to the Civil Parties, legal professionals expressed different understandings about the meaning of justice in international criminal trials. As the following quotes reflect, there is no uniform approach to the question which forms of justice can or should be achieved by international tribunals. Well the idea is to provide some justice and in order to provide some justice is to prosecute those who are responsible for the most serious crimes which are committed under international law. (Judge) That means the international law … the international justice does not only focus on the accountability of the accused person but also to restore the damage, the suffering of the victims. (NGO member)
(a) Justice for the accused – the need for punishment
A narrow interpretation of ‘justice’ in international proceedings was adopted mainly, but not exclusively, by lawyers from common law systems. Those respondents defined ‘justice’ primarily by the outcome of the trial. ‘Establishing accountability’, ‘punishing those most responsible for international crimes’ and ‘ending impunity’ were named as forms of justice a court could provide: I think an international criminal trial is a mechanism of post country conflict accountability suitable only to the most serious crimes committed by those who were most responsible. (Prosecutor) The major aim should be to promote a feeling that there is no immunity from prosecution for acts and omissions when someone is in a very senior position where mass crimes have occurred. (Judge)
This understanding is based on a narrow legal approach to justice, similar to domestic concepts of criminal trials. While this restrictive interpretation is in line with the Civil Parties’ need for a punishment of perpetrators, it does not include factors outside the legal process and victims’ broader hopes for recognition, compensation, clarification and truth. Some of the respondents emphasized that these expectations went beyond what a criminal court could accomplish. International courts were overburdened with aims and intentions that exceed their competences and capacities. There is always a big glory around criminal courts. I think courts are overburdened with expectations, I think unfortunately some of the people working in courts are overwhelmed by all the rhetorics surrounded by it. I don’t think courts can do that, I don’t think judges or prosecutors can do all that. I think what they can do what criminal courts can do is again clarifying responsibility, criminal responsibility. (Judge)
Other interviewees, primarily, but again not exclusively from civil law states, took a broader view of the meaning of ‘justice’ in international criminal proceedings. Similar to the Civil Parties, respondents mentioned ‘justice for victims’ and ‘justice for Cambodia’ in addition to accountability:
(b) Justice for the victims – compensation and hearing their voices
In particular, Civil Party lawyers and NGO members stated that the trial should provide ‘justice for the victims’. A few respondents, especially those with a background in NGO work or less legal experience, even found that empowerment and compensation for victims had to be the prevailing goal of international justice. I think first of all the trial is for the victims and to have them participate. (Civil Party lawyer)
This view was strongly criticized by many respondents for neglecting basic principles of criminal justice. A trial that intends to establish individual criminal responsibility had to focus primarily on the accused and not on the victims. I mean, it’s awful to say that it’s not their trial, it’s the trial of the accused, it’s not the trial of the victims. (Civil Party lawyer) I don’t think criminal trials are exclusively for victims; I think that’s dangerous. (Judge)
Still, many respondents considered ‘justice for victims’ to be an important aim of the Court. ‘Hearing their voices’ and ‘reparations’ were identified as the main factors to guarantee justice for the Civil Parties.
Some respondents found that the ECCC should help victims overcome their silence and raise their voices in a public forum. Given that Cambodia had maintained a policy of silence for decades, the Court should give victims the opportunity to tell their story and finally speak about their suffering: Victims weren’t really given an opportunity to come out and speak out about what happened to them because of the conflict that was occurring in the country … But there’s still that … the regime of not speaking out – perhaps lack of freedom of speech, etc. – that’s going to take a while for that to open up in Cambodia. And so people are reluctant to speak out. And so it’s very good that this Court was set up to allow a legitimate space for victims to have a voice, where they feel more secure, because the Cambodian government has actually allowed for the Court to be set up.
Those who expressed a narrow understanding of criminal justice disagreed, saying that a criminal trial was not able to adequately function as a platform for victims of mass atrocities. Since the court could only attribute a limited amount of time to the Civil Parties, it was impossible to substantially fulfil the victims’ needs to share their experiences. Respondents thus concluded that ‘psychological justice’ through hearing the stories of individual victims went beyond the abilities of an international criminal court dealing with mass crimes.
The same discrepancy could be observed with regard to compensation for victims. Respondents who supported a narrow concept of international justice also showed a restrictive view on reparations. Those interviewees felt that the ECCC were overburdened dealing with reparations and suggested that other actors should be responsible to compensate victims: I am well aware that under the international covenants; for every wrong there should be reparations, but the Court cannot offer that. The government might, NGOs might, other governments might, but not a court. (Judge) And then as a country, maybe the state itself should have done something whether to provide reparation to these victims and here we were sometimes asked to behave on the behalf of the states, which is not possible. (Judge)
While some respondents claimed that international courts were not in a position to provide justice in the form of adequate reparations, others defined compensation for victims as one of the court’s most important obligations in establishing justice. Those who expressed a generally broader understanding of justice found that a criminal court bears the responsibility of granting a wider range of reparations.
(c) Justice for the country – reconciliation, truth-finding and rule of law
Some of the respondents said that the trials should not only guarantee justice for the accused and the victims, but also for the country affected by the atrocities. Those interviewees found that courts could achieve justice by promoting national reconciliation. Providing a forum for the Cambodian population to learn the truth about the Khmer Rouge regime and finally deal with their country’s past had to be one of the court’s prime objectives.
Other respondents were critical about a criminal court’s contribution to the reconciliation process. In light of the severe internal controversies in a post-conflict state impacted by mass atrocities, criminal courts did not have the necessary means to promote reconciliation and ‘bring justice to a whole country’: Criminal proceedings can contribute, and they can be an incentive for reconciliation process, but criminal courts are not the place where all the reconciliation needs of a country, of a post conflict situation can be played out for many, many reasons. So people cannot expect a criminal court to come into the country, sentence the accused, listen to the victims, and all is well again. (Judge) To build reconciliation … it’s not really the job of … I mean it’s not really the purpose of a trial … Because I think the trial is not a reconciliation process. (Civil Party lawyer)
Another aspect of providing justice for the country was seen in the establishment of a historical record of the crimes: I think that the secondary purpose of an international criminal trial where major atrocities or crimes have occurred is to give an evaluated history of what actually occurred within the period that the trial is focusing on, so that evidence about what occurred is tested and weighed – and in that sense, it will become something that could be relied on by the public generally, and of course, by victims in particular. (Judge)
Some respondents opposed the idea that an international court could develop an adequate record of the past. Since a criminal trial focuses on individual liability of a selected number of accused persons, it must take a specific and limited view of events. This individualization of the conflict might lead to a wrong understanding of history, which does not take into account the responsibility of a huge number of perpetrators: On the other hand you have to be careful with that we are not historians. And I think everybody who reads court files should understand that the evidence that is collected is collected with the question in mind what are the objectives and subjects elements of the crime satisfied. So a court has a selective view, also when it comes to historic facts necessarily we are not historians.
A third factor that some of the respondents identified as a form of justice was the court’s involvement in the country’s transitional justice process. Those interviewees held the view that criminal trials should strengthen the rule of law and support the state in restoring the national justice system: I think it’s important that it [the court] plays a role of restoring a justice system and helping build a rule of law in that post-conflict country.
By promoting fair trial standards and accountability, the court had to contribute to enduring peace and prevent history repeating itself.
Discussion
What forms of ‘justice for victims’ should an international(ized) trial achieve?
The results of the study reflect how the participants of a criminal trial understand the court’s responsibility to provide justice for victims. Interviews with legal professionals revealed two different concepts of justice that an international(ized) criminal court should achieve. Some of the respondents defined the court’s duty to provide justice in a broad sense. According to their view, an international(ized) criminal court that is part of a transitional justice process should incorporate a wide range of goals to rebuild and strengthen post-conflict society. This concept of restorative justice goes beyond the question of accountability and identifies reparation, victims’ interests and truth-finding as the aim of a trial. Meeting victims’ expectations for justice is thus considered an important aspect of international(ized) criminal proceedings.
The other group of respondents took a more narrow approach and opined that a court could only provide a limited form of justice by ending impunity and punishing those most responsible for the crimes. While ‘justice for victims’ and ‘justice for the country’ were seen as important aims of a transitional justice process, interviewees felt that a court was overburdened with a broad understanding of its responsibilities. 23 These respondents emphasized that criminal proceedings could not be the answer to all the needs of victims in a post-conflict society. Instead, the efforts of a criminal court must be accompanied by further measures to ensure justice for victims and healing for the country. Criminal trials were thus perceived as operating within the broader context of transitional justice, with a limited responsibility to establishing accountability. Other essential aims of the transitional justice process – reconciliation, reparation and capacity-building – should be pursued by independent, third-party institutions.
While victims agreed on the importance of accountability as a necessary prerequisite for justice, their expectations were not limited to the punishment of perpetrators. The study identified the need for recognition and compensation as prevailing expectations among victims. In particular, the request for reparation as a form of individual acknowledgment and material support proved to be most important for victims. Contrary to assumptions in some academic literature (see Kritz, 1995; Teitel, 2003), reconciliation and empowerment through legal proceedings seemed to play a less significant role for Civil Parties at the ECCC.
The increasing reference to ‘justice for victims’ as a ‘raison d’être’ for international(ized) courts raises the question whether trials of mass crimes can indeed fulfil victims’ hopes for justice. Professionals have expressed legitimate concerns that legal proceedings might be overburdened with broad expectations and could cause disappointment among participants. A closer look at the realities of international(ized) trials reveals the shortcomings of legal proceedings in meeting victims’ needs. Given the limited capacities of criminal courts, the question arises whether the common reference to ‘justice for victims’ is indeed more of a symbol than substance.
What forms of ‘justice for victims’ can an international(ized) trial achieve?
The study’s findings cast doubt on whether criminal courts can substantially contribute to victims’ need for justice. The conviction of a perpetrator satisfies what victims defined as justice for the accused. As Henry (2009: 130) puts it, a criminal trial that establishes accountability ‘affirms formal recognition and acknowledgment of the harm done, and it may satisfy the goal of speaking on behalf of the dead’. While the hope for punishment as a form of justice can be fulfilled in a criminal trial, the broader desire to see the accused physically and psychologically suffer is not compatible with international fair trial rights. Establishing a tribunal in a post-conflict country inevitably leads to a dilemma: international standards conflict with domestic realities. Since many victims suffer from poverty, the treatment of the accused – who receives health care, food, and clothing in provisional detention – is likely to cause a feeling of injustice among victims.
The same observation was made with regard to the accused’s procedural rights. Since Duch had been held illegally in custody before being transferred to the ECCC, the Trial Chamber reduced his sentence by 5 years as a remedy for his unlawful detention. 24 The court’s reasoning was met with incomprehension by many victims who considered it unjust that the accused, who ordered the torture and killing of his prisoners, could claim a violation of his own human rights (Yesberg, 2009). Yesberg (2009: 575) describes the victims’ reaction as a ‘moment … of perfect irony which captured every aspect of the horror, hope, skepticism, and disbelief surrounding this concept of justice’. The fact that the alleged perpetrator is entitled to a fair trial and enjoys human rights according to international standards appears to contradict the victims’ understanding of justice.
Another feature of international criminal law reduces the significance of trials for victims. International tribunals concentrate on the prosecution of high-ranking perpetrators, and most senior political and military leaders. Unlike in national proceedings, the victims of mass atrocities will often lack an individual relationship to the offender who is put on trial. The fact that the accused are often not as experienced as the perpetrators directly inflicting harm on the victims or their families lessens the trials’ relevance for victims (McCarthy, 2012; Yesberg, 2009).
The study further shows significant disappointment with the reparation granted by the ECCC. Future courts can and should foresee a meaningful reparation scheme that provides for collective and moral reparations. However, victims’ need for individual monetary compensation is unlikely to be fulfilled in trials of mass crimes. Owing to the widespread nature of international crimes, a large number of victims in post-conflict societies would be eligible to claim reparation. The example of Cambodia, where a vast majority of those who lived under the Khmer Rouge consider themselves to be victims (Elander, 2013), shows the limits of providing individual compensation for victims of mass crimes. Given the constant struggle for funding, and the restricted financial resources of international institutions, courts will not have the capacity to grant adequate and fair reparation to all victims of the conflict.
The huge number of victims is also an obstacle for providing recognition in trials of mass atrocities. In international(ized) proceedings, the individual victim cannot play an equally important role as in domestic trials where one victim typically faces one perpetrator. Since international crimes often affect an entire country, the prosecution has to select particular events and communities to prove the case. As a consequence, victims who fall outside the scope of the case remain, as Elander (2013: 114) describes it, ‘unnoted, repressed, ungrieved, and confined to the unconscious’. Furthermore, the efficacy of international criminal justice in helping victims to overcome their trauma cannot be assessed conclusively. While some scholars emphasize that the disclosure of traumatic experiences is beneficial to the psychological recovery process for victims (Kritz, 1995), others remain sceptical about a trial’s’ ‘curative powers’ and therapeutic effect (Henry, 2009; Reisman, 1996).
Finding the truth about the fate of their relatives also proved difficult in international(ized) proceedings. Trials of mass atrocities do not primarily sanction individual offences, but deal with crimes in a broader context. While individual experiences might be important to understand the nature of the events, emphasis will always be put on an overall picture of the conflict. It also has to be taken into account that the accused were often senior political or military leaders who ordered but did not personally execute the crimes. Since most of the accused were not directly involved in the commission of criminal offences, their knowledge about the specific circumstances of individual crimes is limited. Victims’ expectations of finding out the truth of what happened to their relatives are thus very likely to be disappointed in a trial of mass atrocities (de Hemptinne, 2010). International(ized) proceedings that involve a large number of victims do not leave enough room for the individual victim to address personal concerns and shed light on their family’s fate and whereabouts. The lack of personal recognition and truth-finding limits the court’s capability to provide restorative justice for victims (de Hemptinne, 2010). While healing, empowerment and closure are reparative effects expected in domestic proceedings, their importance in trials of mass crimes ‘should not be overestimated since … victims will usually be required to participate indirectly in the proceedings through legal representatives, who will act on their behalf’ (War Crimes Research Office, 2007). The inevitable distance to the proceedings that the individual victim will experience in a trial of mass crimes precludes reconciliation between victims and perpetrators. Consequently, most of the Civil Parties interviewed in this study did not express feelings of healing or forgiveness for the accused.
However, international(ized) criminal proceedings establish a historical record of the events, and thus contribute to a broader national reconciliation process that helps post-conflict societies coming to terms with their past (Scully, 2011). After years of silence in Cambodia, the ECCC have finally triggered public discussions about the Khmer Rouge regime, which allowed victims to speak openly about their suffering. Irrespective of their legal participation in the proceedings, the trials provide an important national and international forum for victims to raise their voice.
These shortcomings in achieving ‘justice for victims’ are inherent in trials of mass crimes and an inevitable consequence of the huge number of victims, as well as of limited resources. The results of the study indicate that victims’ expectations for justice cannot be entirely met by international(ized) courts. The assumption that legal participation in criminal trials does not adequately fulfil victims’ needs is supported by the study’s findings on the perceived relevance of the Civil Parties’ legal standing. Interviewed Civil Parties showed a limited understanding of their rights, and did not seem to attribute significant importance to their procedural role in the trial. Instead, the ‘side-effects’ of their participation – such as visiting the ECCC and being provided with free lunch and accommodation – proved to be meaningful for the victims. While the status of a legal party appeared too ‘abstract’ for many victims, invitations to the court were regarded as a more direct form of recognition.
Granting victims the standing of a legal party has a symbolic value for the court and is a strong argument for its legitimacy in a transitional justice process. In light of the findings, however, its relevance for the victims seems less significant. Western concepts of ‘justice for victims’ that define justice mainly as an empowerment of victims through legal participation, risk neglecting the socioeconomical realities of a post-conflict country. Although well intended, these approaches tend to ignore the victims’ existing needs for individual benefit and assistance. In order to develop a meaningful participation scheme, a more realistic and less idealistic view of victims’ understanding of justice is necessary. To achieve justice for victims, further measures that go beyond what an international(ized) court can achieve must be taken.
How is ‘justice for victims’ in international(ized) trials achieved?
Knowing the victims’ needs allows the international community to take measures that are of practical benefit to the victims and serve their interests, instead of a merely symbolic purpose. Prior to setting up a victims’ participation scheme in transitional justice processes, victims’ expectations and demands should be inquired into thoroughly (Lambourne, 2009).
Henry (2009: 134) came to the conclusion that ‘full justice through criminal trials will always be incomplete.’ This study’s findings point in the same direction: it was shown that a formalized legal standing in the proceedings was not of major concern for victims. On the other hand, individual recognition and personal benefits, learning the truth about their relatives’ fates, seeing the accused, and basic information on the trial proved to be key priorities during the trial.
Victims in Cambodia attached great importance to their invitations to the court, which were perceived as a significant form of individual recognition. A Victims Unit that arranges visits to the court and organizes outreach projects could satisfy victims’ interest in seeing the accused and learning about the trial.
To meet the victims’ need to share their stories, accompanying measures such as video interviews or a written collection of individual reports could be implemented. Nino (1996) observes that recognition through story-telling must be considered an important aspect of restorative justice. He argues: ‘what contributes to reestablishing their self-respect is the fact that their suffering is listened to in the trials with respect and sympathy’ (Nino, 1996: 147). Since giving a voice to the victims is not limited to the courtroom, opportunities to speak about their suffering might also be realized in public forums outside the trial.
Victims’ expectations of learning the truth about their relatives’ fates might also be better satisfied by alternative restorative justice mechanisms, such as truth and reconciliation commissions. These bodies can serve as platforms for victims to confront direct perpetrators and find out what happened to their family members. The question whether truth and reconciliation commissions are preferable instruments to provide justice for victims cannot be answered conclusively in this context. However, it is worth noticing that truth commissions fail to address victims’ prevailing need for punishment of the perpetrators. While informal truth-seeking bodies can contribute to restorative justice, they do not adequately promote retributive justice in post-conflict societies (Lambourne, 2009). Since victims mentioned an appropriate sentence as one of their most important hopes, truth commissions do not appear to be a sufficient substitute for criminal trials. Still, informal committees could be set up in conjunction with criminal trials to complement the courts’ efforts in achieving justice (Jouet, 2007; Yusuf, 2007).
The findings suggest that victims see a fundamental value in the punitive criminal justice system and demand punishment to clearly mark the wrong committed (Duff, 2001). However, their hopes for justice go beyond sentencing and focus on a variety of restorative measures. This observation indicates a strong need for a combination of retributive and restorative justice approaches when designing victims’ participation in transitional justice processes. Lambourne (2009: 32ff.) rightly suggests that ‘we should look at creative and locally relevant ways to incorporate principles of both restorative and retributive justice into accountability mechanisms’. For future trials, it is necessary to develop instruments of victims’ participation both inside and outside the courtroom that meet the victims’ hopes for justice. A holistic approach to justice will have to combine legal proceedings with additional measures of truth-telling, reconciliation and reparation (Boraine, 2006; Duthie, 2008).
Footnotes
Acknowledgements
The study was supported by the German Academic Exchange Service (DAAD) and the Fritz Thyssen Foundation.