restricted access Chapter 7. A Historic First: Recognizing Victims as Case Parties
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202 Chapter 7 A Historic First RecognizingVictims as Case Parties One of the main arguments in favor of in-­ country hybrid tribunals is that they facilitate robust victim participation. Victims can more easily observe or participate in the proceedings, which offer them an opportunity to engage in truth-­ telling, contribute to the search for justice, and otherwise seek empowerment and a degree of personal and collective reconciliation.Addressing the rights and needs of victims—­ including the right to accountability for atrocities and the right to the truth—­ has been one of the core stated objectives of all mass crimes courts. Locating a hybrid tribunal beside the survivor population gives it a potentially formidable functional advantage in that regard. The ECCC has developed an unprecedented scheme for victim participation . In addition to involving victims as witnesses and complainants, the ECCC is the first internationalized mass crimes court to follow the civil law practice of including victims as parties in the proceedings. For that reason, there is no direct precedent for it to follow, requiring it to forge its own path and establish new law that will in turn guide the decisions of future courts.Acting Director of Administration Tony Kranh has said that“[v]ictims’ participation is one of the areas in which the ECCC is breaking new ground and setting new standards for courts with international support and involvement.”1 Notwithstanding frequent self-­ laudatory rhetoric, the ECCC has struggled to manage its expansive victim participation scheme. The Court’s underresourced Victims Support Section (VSS) has been hard-­ pressed to respond to thousands of victim complaints and provide other services. The novel civil A Historic First / 203 party scheme has been even more difficult for the Court to administer. Unlike some aspects of the Court’s work, victim participation has not been hobbled by political feuds between its national and international sides. Rather, the ECCC’s challenges in this area reflect relative UN neglect, a tepid Cambodian commitment , and the inherent difficulty of involving myriad survivors in the process. The Court’s example suggests that an in-­ country mixed tribunal cannot fulfill its potential for victim participation without ample resources and advance planning. The ECCC also shows that however meaningful individual civil party participation may be, it is unlikely to be practicable in mass crimes proceedings. Genesis of Civil Party Participation at the ECCC The ECCC’s civil party scheme is one of its most notable innovations.The mandates of previous mass crimes tribunals, including the International Criminal Tribunals for the former Yugoslavia and Rwanda (ICTY and ICTR) and the hybrid Special Court for Sierra Leone (SCSL), provided a role for victims only as simple witnesses. Critics argued that these courts missed an opportunity to provide victims a more central role in the proceedings.2 ICTY Prosecutor Carla Del Ponte told the Security Council: The voices of survivors and relatives of those killed are not sufficiently heard. Victims have almost no rights to participate in the trial process, despite the widespread acceptance nowadays that victims should be allowed to do so. . . . It is regrettable that the Tribunal’s statute makes no provision for victim participation during the trial, and makes only a minimum of provision for compensation and restitution to people whose lives have been destroyed. . . . We should therefore give victims the right to express themselves, and allow their voice to be heard during the proceedings.3 In response to such critiques,the Rome Statute was drafted to include a role for victims to participate directly at the International Criminal Court (ICC).4 In formulating these provisions, the drafters looked back to the UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power of 1985,5 a watershed document for the victims movement.6 Although the Decla- 204 / Hybrid Justice ration is not legally binding, it is the first international instrument to establish minimum standards for crime victims. It affirms that victims should have both “access to the mechanisms of justice” and the ability to receive redress for their harms.7 At the ICC, victims do not have the full rights of a party but are considered “victim participants.” The Special Tribunal for Lebanon (STL) offers victims a similar participatory role, while the Extraordinary African Chambers, much like the ECCC, will include civil parties based on a domestic law model.8 Neither the 2003 UN-­ Cambodian Framework Agreement nor the 2004 law establishing the ECCC set forth any participatory role for victims in the proceedings. There...


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