Participation as Reparations: The ECCC and Healing in Cambodia

Abstract

In the final days of the trial of Kaing Guek Eav (Duch) at the Extraordinary Chambers in the Courts of Cambodia (ECCC), a Civil Party attorney, Mr. Canonne, proposed that for his clients “the most valuable reparation [was] probably their very presence [in the Court].” This Chapter explores the notion of whether victim participation in international criminal trials should be considered a form of reparation. Though the definition of reparations under international law is quite broad, it is not clear whether participation in trials of those responsible for mass crimes falls within its scope. Many studies of victim participation in international criminal tribunals have been critical of the psychological impact of testifying before these courts. The authors of these accounts argue that participation runs counter to rehabilitative goals of reparations.

Using the first prosecution before the ECCC as a case study, we explore in detail the various mechanisms for victim participation in international criminal trials. We agree that contemporary participation mechanisms risk significant harm to victims, but suggest that a carefully structured participation process may offer an effective mechanism for providing collective symbolic reparations. We argue that reconceptualization of participation as reparation is in order and that international criminal tribunals should aim to maximize the rehabilitative potential of victim participation throughout the trial process.

Keywords: Cambodia, Extraordinary Chambers in the Courts of Cambodia, reparations, civil party, victim participation, international criminal law, rehabilitation

JEL Classification: K33