2019 | ECCC Internal Rule 23 -on Reparations - Proposed amendment by Centre for Justice and Accountability
The Extraordinary Chambers in the Courts of Cambodia (ECCC) were established in 2001 as a hybrid international and national court, to try those most responsible for atrocities committed under the Khmer Rouge regime from 1975-1979. While the document establishing the court in 2001 made no provision for reparations, the Internal Rules of the court (2007) introduced the possibility that victims could receive reparations, with the inclusion of Rule 23.
Rule 23. Civil Party Action by Victims
The purpose of Civil Party action before the ECCC is to:
a) Participate in criminal proceedings against those responsible for crimes within the jurisdiction of the ECCC by supporting the prosecution; and
b) Allow Victims to seek collective and moral reparations, as provided in this Rule.
1. The right to take civil action may be exercised by Victims of a crime coming within the jurisdiction of the ECCC, without any distinction based on criteria such as current residence or nationality. In order for Civil Party action to be admissible, the injury must be:
a) physical, material or psychological; and
b) the direct consequence of the offence, personal and have actually come into being.
11. Subject to Article 39 of the ECCC Law, the Chambers may award only collective and moral reparations to Civil Parties. These shall be awarded against, and be borne by convicted persons.
12. Such awards may take the following forms:
An order to publish the judgment in any appropriate news or other media at the convicted person’s expense;
An order to fund any non-profit activity or service that is intended for the benefit of Victims; or
Other appropriate and comparable forms of reparation.
However, it took years for this provision to be translated into concrete reparatory measures for the benefit of victims. Indeed, in its 2010 Judgement in case 001, the trial chamber devotes several paragraphs to explaining the limits to its jurisdiction when it comes to the implementation and enforcement of reparations awards. (See our page of Cases in this section. See also the 2009 article by Haou Duy Phan on our articles page in this section). In Feb. 2010 the rule about reparations was amended by Revision 5 which moved paragraph 23 (12) into a newly added sub-rule, Rule 23 quinquies). Revision 6 (16 Sept. 2010) went on to extend rule 23 quinquies to its present form. In 2019, the Centre for Justice and Accountability proposed a further small but significant amendment to rule 23.
The introduction of, and changes to internal rule 23 reflect the developing international law of reparations as it has evolved in the practice of the International Criminal Court and in State practice, as shown by the pursuit of reparations for conflict-related harm in criminal trials and civil suits before national and regional courts. It also reflects the growing acceptance that the protection from human rights violations is not necessarily suspended during armed conflict, as expressed in the UN’s “Basic Principles and Guidelines on the Right to a Remedy…” of 2005 (see elsewhere on this page).