If you were certain that you knew the man responsible for your interrogation by torture or your brother’s murder, would you want to confront him? What would you say? And if he was put on trial, how should your voice and your story contribute to the search for justice?
By Chris Tenove, Stoeng District, Kompong Thom Province, Cambodia (*)
Those questions are most acute and complex in the wake of mass atrocities, when thousands of victims wish to have their demands heard and their pain acknowledged. Today a new model to include victims in the processes of international justice is being tested at the Khmer Rouge tribunal, formally known as the Extraordinary Chambers in the Courts of Cambodia (ECCC). In the tribunal’s first trial, 93 people have been given the status of “civil parties” in the case against Kaing Guek Eav. Known by his Khmer Rouge alias “Duch,” he oversaw the S-21 torture and execution centre, where an estimated 14 000 people were killed.
The civil parties have heightened the drama and pathos of the Duch trial. One woman described how her baby died while she was incarcerated. Another admitted that prisoners got so little food that they eagerly ate any insects that crawled into their cells. Family members of S-21 victims gave searing testimony about the pain they have suffered for three decades, knowing that loved ones suffered gruesome tortures before being killed. At times civil party members have stood in court and directly challenged the words of Duch himself. And throughout the trial, the civil party lawyers have enjoyed the same rights as the prosecution and defense when it came to questioning witnesses, experts, and the accused.
But this experiment in victim participation has taken a dramatic turn. Last week, judges ruled that the civil party lawyers were forbidden to ask questions of witnesses, experts, or Duch in the final weeks of the trial.
Feeling betrayed, civil party members responded on Monday with a press conference in the parking lot outside the ECCC. Grim but determined, 28 of the most active civil parties announced that they would boycott the proceedings until the judges reversed their ruling.
“I’m dismayed that the court has taken a decision to silence our representatives in court,” declared Chum Sirath, a local businessman whose two brothers and a sister-in-law were killed at S-21. “We will not return to the courtroom until our right to participate is restored.”
Following that pronouncement, the civil party members climbed into a bus to visit the former site of S-21, now the Tuol Sleng Genocide Museum. There Chum Mey, one of a handful of inmates to survive S-21, walked through the cinder-block rooms where he was shackled, electrocuted, beaten, and had his toenails torn off by pliers. Like other inmates he was forced to confess to being an American or Soviet spy, nonsensical admissions that served only to stoke the paranoid propaganda of the Khmer Rouge regime.
Mey has attended the ECCC every day as a civil party. On June 30 he testified about his own torture, and the murder of his wife and children. That day he declared that the tribunal “can help to wash away the suffering” of Cambodia’s people. But today he is disillusioned.
“I want my lawyer to have the right to question Duch,” he explained. “Duch is very cunning. He confesses what he has done and he denies things at the same time. If my lawyer cannot ask questions, I am afraid that I will never know the truth.”
An Experiment in Victim Participation
Civil parties, which do not exist in criminal trials in common law systems, are familiar in the civil law systems of countries such as France, Germany, and Cambodia itself. Normally, civil parties can claim compensation for damages caused by crimes. But this claim for compensation becomes extremely complex in Cambodia, where almost every family has been touched by the Khmer Rouge. Between 1975 and 1979, an estimated two million people died of starvation or disease, or were executed in the regime’s notorious “killing fields”.
As a result, civil parties at the ECCC can only ask for “collective or moral reparations," an ill-defined category that could include anything from mental health centres to public memorials. No one yet knows what form reparations should take, or who will pay for them.
In addition to lobbying for reparations, civil party members have testified in court to explain the types of psychological and material damage they have suffered. Alain Werner, a Swiss lawyer who represents several civil party members, believes that this has been a great contribution to the trial.
“We can completely lose sight of the suffering people have endured, especially when these crimes happened so many years ago and there are so very many victims,” says Werner. “We have seen that these crimes don’t just affect victims, but their entire families.”
One of Werner’s clients is Robert Hamill, whose brother Kerry was captured by the Khmer Rouge while yachting off the coast of Cambodia in 1978. The young New Zealander was taken to S-21, where he was tortured and executed. The Hamill family disintegrated after they heard this news—the parents sunk into depression and one brother committed suicide.
In court, Robert Hamill tearfully confronted the accused. “Duch, when you killed my brother Kerry, you killed my brother John as well. The effect these two devastating losses had on our family simply cannot be measured.”
Not everyone has been thrilled by the presentations of civil parties. “The voices of the victims are very important,” says Francois Roux, Duch’s French defense counsel. “But the civil parties made some pronouncements that were out of place in a court of justice, words of hate and words of vengeance. One person said [to Duch], ‘I wanted you to be smashed.’”
Roux asked the judges to better regulate the civil parties, but he didn’t ask for them to prohibit civil party lawyers from future questioning. “The civil parties lost but I also lost that argument,” says Roux. “We must continue searching for the right method to include victims in the trial.”
A Brother’s Testimony
Next week the judges of the ECCC will meet behind closed doors to discuss issues that include civil party participation. The Duch trial has been a test run. For Case Two, the trial of four of the top Khmer Rouge leaders, over 2 000 people have applied to be civil parties. It will be a complex matter for the judges to include these victims in a meaningful way.
Chum Sirath hopes that other victims have the opportunity he enjoyed in the Duch trial. Sirath was working in Geneva when the Khmer Rouge took power. Two brothers and a sister-in-law died at S-21, and he testified to their memory at the ECCC.
“It was difficult for me to speak in public about my feelings,” says Sirath, 68, who now directs an IT company in Phnom Penh. We spoke on the beautiful tiled terrace of his home, next to a swimming pool surrounded by bamboo and flowering vines.
Sirath had never met the sister-in-law who died at S-21. In the hope that her relatives might be watching a TV broadcast of the trial, he asked them to contact the tribunal. Within the hour he received a call from her cousin. We spoke shortly before he met his newly-discovered relative, Kim Navy.
But Sirath is perhaps most pleased that he was able to confront several arguments put forward by Duch. He believes that despite Duch’s guilty plea, he continues to withhold important information about S-21.
Would his brothers be happy with his courtroom performance?
Tears well in Sirath’s eyes. “I think so,” he says, softly. “Yes.”
(*) Chris Tenove is a doctoral student at the University of British Columbia and a Scholar with the Trudeau