Three decades after her husband, Huot Sambath, an ambassador for then-Prince Norodom Sihanouk’s government in exile, was killed by the Khmer Rouge, Marie-Felicite Sambath returned from France to the country that took not only her husband, but also her daughter, mother, and sister.
The Extraordinary Chambers in the Courts of Cambodia had finally started its work, and Marie-Felicite Sambath, now 72, hoped to participate in the pursuit of justice herself.
In May, five months later, she returned to France in frustration.
She and her son, Sothea Sambath, who moved to Phnom Penh last year, are among the best educated and best connected of the victims of the Khmer Rouge. But the ECCC’s shimmering headquarters on the outskirts of Phnom Penh has remained, even for them, a fortress.
“It’s even more hectic than meeting with the King,” said Sothea Sambath.
The irony is especially acute because, on paper at least, this court allows for deeper victim participation than most other international criminal tribunals.
“It’s a court built for the interest of victims more than any other court,” said Co-Prosecutor Robert Petit. “But so far, we haven’t gotten the participation we’ve wanted to. The location is not helping.”
It takes more than half an hour to get to the court from central Phnom Penh; even staffers, who are shuttled there by bus, complain privately about the commute.
Location aside, the issue of victim participation has gained new urgency now that judicial work has actually begun. In July, co-prosecutors identified the names of five suspects they believe should be investigated, and on July 31, the court’s co-investigating judges handed down their first charges, accusing Kaing Guek Ieu, aka Duch, of crimes against humanity
But this new momentum has left other crucial branches of the court behind, and the clock is ticking. Under the internal rules, a victim may only submit an application to be a civil party to a given case before the trial actually starts.
“Determining the role of victims in the ECCC has been a challenge for the court,” said Peter Foster, the UN spokesman for the tribunal. “As most are aware, a ‘Victims Unit’ was not part of the original ECCC budget and was not mentioned in the [2003] agreement between the Royal Government of Cambodia and the United Nations.”
The court’s internal rules, which were adopted in June, called for the creation of a Victims Unit, which would help process victim claims and help victims register as civil parties to the court. Civil parties can participate directly in the judicial process, and seek “collective and moral reparations,” the precise nature of which has not been determined. But the Victims Unit has yet to take shape, and at the moment has neither staff nor funding.
“It’s one thing for the judges to say we want this unit. We all agree we do. Now we have to find a way to support it,” Foster said.
In June, Co-Investigating Judge Marcel Lemonde said the tentative, three-year budget of the Victims Unit would be $600,000, but Foster now says that the actual budget is still to be determined. “In the end it really depends on what the donors will accept and support,” he said, adding that fundraising for the unit has already begun.
The court is also in the process of recruiting for the unit. The application period for a Cambodian unit chief and an international deputy closed at the end of July.
“Those applications are now being carefully considered,” Foster said, adding: “This will take some time, but our priority is to get the right people with the best qualifications, not to just fill the positions quickly.”
He declined to predict when the unit might actually be up and running, but said that in the meantime, victims can file complaints directly with the office of the co-prosecutors.
The court is relying on support from civil society groups to help with victim outreach, but until the Victims Unit is fully functional, there is little civil society can do to help.
Hisham Mousar, who has been monitoring the tribunal for rights group Adhoc, said that in the last month, Adhoc has collected informal complaints from more than 50 people across the country, but has no idea how to effectively present them to the court. “We are waiting for an official complaint form from the ECCC,” he said.
Mousar added that he was dismayed by the planned structure of the Victims Unit.
“It seems the administration of the ECCC considers the Victims Unit just an administrative unit,” he said. What, he asked, about victim protection, psychological support, security, and legal aid?
Jean Reynaud, a French attorney who acts as a special representative for the Collective for Khmer Rouge Victims, a coalition of European groups that promotes victim participation in the ECCC, praised the tribunal for letting victims participate directly and allowing for the possibility of reparations. “That’s a very big step. That puts the ECCC at the forefront of international criminal law today,” he said.
The only other international criminal tribunal to allow for comparable victim involvement is the International Criminal Court, based in The Hague. But unlike Cambodia’s tribunal, the ICC has provisions in place to help victims pay for lawyers if they can’t afford them.
In Cambodia, Reynaud said, “Lawyers could work pro bono and hopefully they will.” But he and Mousar argue that the proposed Victims Unit should look more like the Defense Support Section, which, among other things, had nearly $4.8 million allocated to pay for lawyers for indigent defendants.
“How can the ECCC administration explain to victims that they will be treated on less favorable terms than former Khmer Rouge?” Mousar said.
Youk Chhang, director of the Documentation Center of Cambodia, said the basic problem was a lack of coordination, and he urged the court to do more to reach out directly to victims. In a July outreach survey, DC-Cam found that almost everyone preferred to hear about the court from “official” sources, namely the ECCC itself or the government.
“The court has to handle this by itself, directly with the victims,” he said. “You’ve been here one year. Where are you?”
Foster said the Public Affairs office has been doing plenty of direct outreach, and argues that civil society groups will—and should—continue to play an integral role in helping the court reach Cambodians.
“Civil society groups have, and will continue to, play an invaluable role in disseminating information on the work of the ECCC,” he said, adding: “Many have been provided with considerable funding from donor states to support this work. These groups’ ability to reach every corner of Cambodia with long established and trusted networks cannot be matched.”
For Sothea Sambath and his mother, it may already be too late. They have decided to seek justice on their own.
“One day at the temple, my mother and I came to the same conclusion,” he said. “A Khmer Rouge trial will never bring back my father, my older sister, her husband, my aunts, uncles. The best justice we can give to my father is to write a book about him.”
