Even the unsatisfactory experience of Cambodia in the wake of the Khmer Rouge ‘killing fields’ of the 1970s has demonstrated victim compensation is now a key part of the post-war reckoning process. After many years, the Cambodian government finally reached an agreement with the UN on establishing the Extraordinary Chambers in the Courts of Cambodia (ECCC) to try former Khmer Rouge leaders. The UN Group of Experts for Cambodia734 had recommended the ECCC have the power to award financial reparation to victims from those leaders convicted at trial, but the Cambodian government rejected the idea.735 Therefore, while the Internal Rules of the ECCC allow for the confiscation of illegally-obtained real property and other assets from convicted persons, this
730 M. Katayanagi, “Property Restitution and the Rule of Law in Peacebuilding: Examining the Applicability of the Bosnian Model”, Paper presented to World Bank Conference on Land and Poverty, Washington, 24-27 March 2014.
731 P. van den Auweraert and I. Cvetkovski (International Organisation for Migration), “Reparations for Wartime Victims in the Former Yugoslavia: In Search of the Way Forward”, Executive Summary, 2013. 732 Ibid.
733 R. Pinnington, “EU Expansion: Serbia and Montenegro Move Forward with Membership Talks”, Express, 14 December 2017.
734 Report of the Group of Experts for Cambodia, established by former Secretary General Kofi Annan pursuant to General Assembly Resolution A/RES/52/135 (1998).
735 H. Phan, “Reparations to Victims of Gross Human Rights Violations: The Case of Cambodia”, 4 East Asia Law Review 277 (2009), 284-285.
165 goes to government coffers and is not for the benefit of victims.736 As such, the apparent vast wealth of Khmer Rouge leaders737 on trial will therefore go untapped. The Internal Rules however state that reparation should be granted to victims in symbolic terms.738 To date the Chambers have convicted three former Khmer Rouge senior leaders (Kaing Guek Eav (‘Duch’), the former Head of the S-21 security facility in Phnom Penh, Nuon Chea (‘Brother Number Two’) and Khieu Samphan (President of the State Presidium)).739 Recognizing that all those convicted are indigent, the Chambers ruled that education, documentation, memorialisation and some health rehabilitation projects be judicially recognized as civil reparation (3865 victims were registered as civil parties in Case 002/02).740 Part of a project aimed at livelihood support was not recognized given that the Chambers saw it akin to financial reparation and thus outside what was allowable under Internal Rule 23.741 It is not known yet whether other investigations still at an early stage will proceed to trial which might result in further symbolic awards.742
On the issue of financial redress, it is most unfortunate that the former Khmer Rouge leaders still in power today have not only refused the idea of reparation upon conviction and have distanced themselves from the ECCC process, but also have shown little inclination to institute reparation outside of that process.743 Phan observes that the issue of reparation has received far less attention from both the Cambodian government and the international community than the issue of criminal
736 Law on the Establishment of the Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed during the Period of Democratic Kampuchea (2004) [Council of Jurists translation], Article 39.
737 Report of the Group of Experts for Cambodia, op. cit. (note 734), para 211.
738 Extraordinary Chambers in the Courts of Cambodia, Internal Rules (Rev. 4), Rule 23 (revised on 11 September 2009).
739 The case against Kaing Guek Eav was known as ‘Case 1’, while that against Nuon Chea and Khieu Samphan (plus Ieng Sary and Ieng Thirith, who both died before trial was completed) was known as ‘Case 2’ (split into ‘Case 002/01’ (relating mainly to certain crimes against humanity) and ‘Case 002/02’ (referring to war crimes, crimes against humanity and genocide throughout Cambodia)); A. Boyle, “A Long Time Coming: Understanding the Landmark Ruling from the Khmer Rouge Trials”, Just Security (19 November 2018). 740 Case against Nuon Chea and Khieu Samphan in the Extraordinary Chambers in the Courts of Cambodia, Case File No. 002/19-09-2007/ECCC/TC (Case 002/02), Summary of the Judgment (16 November 2018), para 63-67 (27-28).
741 Id., para 67 (28).
742 Boyle, op. cit. (note 739). 743 Phan, op. cit. (note 735), 286.
166 accountability (the former is evident from the lack of success by the United Nations in raising international donor funds for this purpose).744 Luftglass notes also that the international community was more interested in Cambodia’s stability and international participation than in repairing victims.745 Unless the Cambodian government manages to seize the large caches of assets apparently amassed by former Khmer Rouge senior leaders746, there is unlikely to ever be enough funds to repair victims. The chances of doing so are minimal given the lengthy time that has passed, and the experience of Sri Lanka, Sierra Leone, Liberia and other States shows that calls for international donor funds are unlikely to be anywhere near sufficient. Accordingly, even after three decades financial reparation will remain out of reach for Cambodia’s victims747, and this is unlikely to change. Although the ECCC is unable to provide compensatory redress through the criminal justice process (the ICTR and the ICTY were similar in this respect), it is however clear that the Chambers have attempted to address the issue of civil reparation notwithstanding severe legal and resource constraints. This is crucial given that Cambodia’s human rights treaty obligations guarantee victims an ‘effective remedy’, so comprehensive symbolic reparation will need to fulfil that role. The awards are even more important given the flagship nature of the cases, and the gravity and scale of the crimes proven.
6.9 Conclusions
When enacted, the above compensation plans have been imperfect in major respects in design and they have varied widely in their coverage and effectiveness. They have however been an important recognition of the duty on those States to pay (and the corresponding right of victims to receive) reparation for IHL and IHRL violations during their recent non-international armed conflicts. In addition to the post-war States examined in this Chapter, there are other examples of States implementing victim compensation regimes following lengthy repression and/or conflict, such in
744 Ibid.
745 S. Luftglass, “Crossroads in Cambodia: The United Nations’ Responsibility to Withdraw Involvement from the Establishment of a Cambodian Tribunal to Prosecute the Khmer Rouge, 90 Virginia Law Review 893 (2004), 903.
746Report of the Group of Experts for Cambodia, op. cit. (note 791). 747 Phan op. cit. (note 735), 278.
167 several other Latin American States (Argentina748, Chile749, Guatemala750 etc.), and in South Africa following the apartheid era.751 in addition, the UK government constituted a wide-ranging compensation scheme for victims of the (Northern Ireland) ‘Troubles’.752
Because reparation has been enacted in domestic legal systems, victims have had a legislative framework for redress based in domestic law, which has meant that they have avoided completely the difficulties of arguing their claims based on international (humanitarian or human rights) law. Having said that, given the clear shortcomings of many of these regimes in meeting international standards of justice, individual victims or groups of victims may need to go further and enliven international fora (regional human rights fora or treaty mechanisms) to finally and fully establish their rights. Various international bodies have noted that States would breach international obligations if they fail to provide victims with an effective remedy.753
In one sense the lack of financial reparation for victims in many of the above post-war societies reflects the difficulties that plague any financial reparation process in the wake of mass atrocity, particularly when there are lengthy delays. The very nature of war crimes and crimes against humanity, where they involve great numbers of victims and shatter entire communities, makes them impossible to fully repair, and as such all reparation must be symbolic. Further, the sum placed on the loss of a family member, or on significant and lasting disability, will always be arbitrary and inadequate. As such, individual reparation may lose any real meaning and can even be insulting. This will especially be the case if official apologies and government acknowledgement of the wrongs
748 See A. Gualde and N. Luterstein, “The Argentinian Reparations Programme for Grave Violations of Human Rights Perpetrated during the Last Military Dictatorship (1976-1983)”, in C. Ferstman et al (eds.), Reparations for Victims of Genocide, War Crimes and Crimes Against Humanity: Systems in Place and Systems in the Making (Martinus Nijhoff, Leiden, 2009), 415-434.
749 See E. Lira, “The Reparations Policy for Human Rights Violations in Chile”, in P. de Grieff, The Handbook of Reparations (Oxford University Press, Oxford 2006), 55-101; C. Sandoval, “Chile and the Unfinished Business of Justice and Reparation”, TerraNullius Weblog, 11 December 2013.
750 Op. cit. (note 620).
751 C. Colvin, “Overview of the Reparations Program in South Africa”, in P. de Grieff, The Handbook of Reparations (Oxford University Press, Oxford, 2006).
752 Victims and Survivors (Northern Ireland) Order (2006) and the Commission for Victims and Survivors (Northern Ireland) Act (2008). See www.victimsservice.org and http://www.cvsni.org.
753 See for example International Center for Transitional Justice, Submission to the UN Human Rights Council’s Periodic Review of Sierra Leone (11th Session May 2011), 1 November 2010, pages 4-5.
168 committed, communal reparation and memorialisation activities, truth and reconciliation commissions and health and education programmes are all absent.
Further, reparation are in some respects a blunt tool, ill-adapted to dealing with some types of abuse. For example, while sexual violence is increasingly on the agenda of transitional governments, much of the discourse around transitional justice and reparation fail to address the needs of these victims, particularly in the context of mass abuse. In common with other gross abuse, compensation will inevitably be grossly disproportionate to the harm suffered, thus risking trivialisation of the suffering. Further, a continuing focus on the “victimhood” of survivors of sexual abuse contributes to a sense of ongoing powerlessness and stigmatisation in a way that a continued focus on the victims of (say) a massacre does not. Further, the ‘individualisation’ of the right to reparation (the focus of this thesis) ignores the broader societal inequalities which contributed to the abuse in the first place, thus missing a vital development opportunity and leaving intact the roots of violence.754 This illustrates the challenge faced by transitional justice in being both backward and forward-looking, by addressing the legitimate claims for justice of survivors of horrific abuse while consolidating long-term peace, equity, and respect.755
Political decisions about whether and what amount to fund compensation (especially where the number of victims is massive) will always be difficult, and despite their recognition of victims’ legal rights, most States have done poorly in this respect. There are often political disagreements about whether it is more important to compensate victims or to rebuild economically, and in the face of scarce resources and unstable post-war political leadership it is very likely that the former will be sacrificed in favour of the latter, either until the economy recovers or indefinitely. Sometimes the State provides for both collective and individual reparation, but many governments tend to resource the former far better than the latter (no doubt due to their wider impact for the money spent, and possibly due to the potential for political votes in recipient communities). For their part, collective reparation programmes have sometimes been criticised for being deficient economically, conducted
754 A. Saris and K. Lofts, “Reparation Programmes: A Gendered Perspective”, in C. Ferstman et al (eds.), Reparations for Victims of Genocide, War Crimes and Crimes Against Humanity: Systems in Place and Systems in the Making (Martinus Nijhoff Publishers, 2009), 79-99.
755 R. Mani, “Reparation as a Component of Transitional Justice: Pursuing Reparative Justice in the Aftermath of Violent Conflict” in S. Parmentier and K. De Feyter (eds.), Out of the Ashes: Reparation for Victims of Gross and Systemic Human Rights Violations (Antwerpen: Intersentia, 2006), 55 (paraphrased).
169 without recipient community consultation, or for veering into the area of community development which the government is obliged to deliver anyway.756
In many post-conflict societies financial reparation are an integral part of a broad package aiming to reform institutions and government practices, strengthen the human rights architecture, and address the deep structural issues in society (such as economic inequalities between ethnic groups, poverty in rural areas, social and political marginalisation) that gave rise to the conflict. However, in many cases governments have pursued memorialisation and reparation (in far less than perfect form) while ignoring broader reforms. The result has been that society as a whole has failed to reckon with the past and little structural change occurs757, meaning the process has not repaired the harm in the fullest way which could break the cycle of violence. At a deeper level this falls foul of the guarantee of non- repetition owed to the international community (in the case of international wrongs) under Article 23 of the Basic Principles and Guidelines. In this sense, one of the key goals of a post-conflict reparation process goes unmet.
The model adopted by international criminal tribunals such as the ICTR in Rwanda and the ECCC in Cambodia has been very unsatisfactory for victims. The ICTY and SCSL have been even less amenable to victim reparation (there, victims had to seek compensation from convicted persons in national courts). These bodies have been based on the Western adversarial system which minimises the participation of victims in court and places responsibility on the Prosecution to represent victims during the proceedings. Having the impact on victims considered only at sentencing (where available) does not dignify and empower victims throughout the process, and there is evidence that many victims have been disappointed and disillusioned from this experience in court.
Further, a clear expectation has arisen in recent international criminal law due to developments in IHRL, coupled with notions of accountability in the regular criminal codes of many countries, that those found guilty of war crimes should compensate their victims. Provisions for financial awards for victims have been written into international criminal tribunal processes and been a feature of trials in national courts of persons accused of war crimes and/or abuses of human rights during conflict, yet the experience of the four international tribunals considered in this chapter has been most unsatisfactory in this respect. Yet “[f]unding reparation for mass-victimisation from the resources
756 M. Martinez, “Peru’s Painful Mirror”, International Center for Transitional Justice (2013). 757 Ibid.; Correa, op. cit. (note 648); Magarrell, op. cit. (note 376), 91-94 and 96-97.
170 collected from individual convicted perpetrators will be necessarily a challenge”758, and moreover, placing the burden of reparation on these convicted few does not reflect well the fact that gross and widespread violations would have had broader planning and organisation. In practice, even when convictions of very senior (and allegedly very rich) persons have been obtained in courts and tribunals having the power to seize assets for victim reparation, it has proven extremely difficult to recover even meagre resources for this purpose. This phenomenon dovetails with the experience of individual awards in national courts (see Chapter 4 above).
The role of international pressure appears to be crucial in forcing societies reckoning with transitional justice to take sufficient account of the need to provide an effective remedy to victims. For example, once the international community had seen the conviction of Charles Taylor and a handful of others in the SCSL, pressure on the Liberian government to account to victims evaporated. The international community was overwhelmingly concerned with criminal sanctions for genocide and other war crimes in Rwanda and in the former Yugoslavia, and so there was little attention paid to making their respective governments enact comprehensive civil reparation in their post-war reconciliation process. Similarly, the international community’s focus on criminal processes for former Khmer Rouge leaders has been to beggar a civil scheme for Cambodian victims. International pressure for accountability and redress has waned also when there is evidence of positive cooperation by the State on other issues of priority concern, particularly (in recent years) international terrorism.
Given that victims’ right to reparation for IHRL (and IHL) violations during war are so often considered secondary to immediate transitional justice concerns or perhaps frustrated entirely, this gives rise to the question whether that right becomes less potent or blunted. A right founded in customary law, if denounced or not observed by a majority of States in practice, may lose its status as a right. However, this cannot be the case for the right of individuals to reparation. This right is based in key international treaties, as well as being endorsed in many United Nations-level formulations with little to no dissent. States have not implemented reparation for individuals for a range of political and economic reasons, but in all the diverse examples discussed in this Chapter there was at least an acknowledgement of the suffering of individuals and families and the requirement to repair. In no case was the principle denied as a matter of law. Therefore, even if the right to individual compensation is still being rather poorly observed in the details of practice, its legal validity is still being overwhelmingly recognised across diverse circumstances and traditions.
171 That said, considerably greater efforts are required by the international community to develop better means of ensuring that victims’ rights do not continue to be sacrificed to other concerns in the post- war recovery process.
The following chapter discusses compensation for civilian ‘collateral damage’ in international law, arguing for the normalisation of the current ad hoc ex gratia regimes operated by several States.
172