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The right to be heard

The right to be heard

A war crimes tribunal in Cambodia has convicted a defendant of crimes against humanity. What does this mean? Krystyna Grinberg, member of the Victorian IHL Committee and Pip Ross, IHL officer, Australian Red Cross explain

A war crimes tribunal in Cambodia has convicted a defendant of crimes against humanity. What does this mean? Krystyna Grinberg, member of the Victorian IHL Committee and Pip Ross, IHL officer, Australian Red Cross explain

Cambodia’s brutal Khmer Rouge was responsible for the deathsof more than 1.6 million people. Now, more than three decades after its fall, a UN-backed war crimes tribunal in Cambodia has convicted a defendant of crimes against humanity and grave breaches of the Geneva Conventions of 1949.

The Extraordinary Chambers of the Courts of Cambodia (ECCC), a hybrid tribunal administered jointly by the Cambodian government and the United Nations, has a mandate to try those most responsible for crimes committed during the Khmer Rouge’s rule.  It recently handed down its first sentence, a 35 year jail term to Kaing Guek Eav (Duch), head of Phnom Penh’s notorious Tuol Sleng prison. Both the defendant and the co-prosecutors have indicated they will appeal.

Australian barrister, Rowan Downing QC, a judge of the ECCC’s Pre-Trial Chamber, recently spoke about his work in Cambodia as part of the ‘Humanitarian Law Perspectives’ seminar series presented by Australian Red Cross and Mallesons Stephens Jaques.  The HLP Seminar series is designed to update the Australian legal community on current developments in international criminal law.

A unique feature of the tribunal’s rules of procedure, created by the international and Cambodian judges, is the right of victims to directly participate as parties to the trials. Given the immensity of the crimes committed, and the daunting number of victims, it was a patently ambitious move.

Mr Downing provided insight into the successes and difficulties experienced by the court in implementing victims’ rights.  The ECCC permits victims to participatein all stages of the proceedings. They can participate as civil parties and call for collective and moral reparation; however there is no avenue for financial compensation through thetribunal.  A victim is defined assomeone who has suffered physical, material, or psychological damage that isdirectly related to the regime.

Downing spoke about the practical organisational problems this created for the tribunal.  Inthis first trial there were 90 victims added as civil parties, represented by 17 lawyers.  

Civil party lawyers are allowed to question witnesses, and Mr Downing estimated victimparticipation had extended the length of Duch’s trial by as much as a third.This leads to questions about the accused’s right to an expeditious trial, and whether the needs of victims can be allowed to divert the court from the rights of the accused.  The age of other Khmer Rouge officials now in their 70s and 80s who are also facing charges before the ECCC makes an expeditious trial particularly important.

Due to the tribunal’s successful outreach activities the number of victims seeking to participate in parties has increased enormously–in the next trial 4,121 victims have sought to be joined as parties, and it is anticipated they will be represented by more than 30 lawyers. For any subsequent trials before the ECCC civil parties must nominate lead counsel to streamline proceedings and eliminate repetition.

Mr Downing said victims often want an answer to the question ‘Why did this happen?’ and information about the fate of their families and he questioned whether an international criminal tribunal is the proper avenue for this. Downing queried the effect of causing victims to relive horrific events that occurred more than 30 years ago. 

Perhaps victims might best be served by a properly funded truth and reconciliation commission run alongsidethe tribunal, he said. The Commission would help to heal the emotional scars while the Tribunal’s vital purpose is to determine whether the accused bear the criminal responsibility for what occurred and to end the impunity that has remained for so many years.

The international community’s search for the most effective way to deal with crimes of this enormous scale continues.  It will be interesting to see whether the ECCC is able to ultimately strike the right balance between procedural fairness for the accused and allowing opportunities for victims to participate in the judicial process. 

For more information about upcoming HLP seminars see www.redcross.org.au/ihl

Written by Krystyna Grinberg, Member of the Victorian IHLCommittee and Pip Ross, IHL officer, Australian Red Cross

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The right to be heard
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