For former Khmer Rouge prisoners, reparations are key to justice

Tuol Sleng survivors -L-R: Chum Mey, Ruy Neakong, Im Chan, Vann Bath, Bou Meng, Phan Than Chan and Ung Pech

Chum Mey and Bou Meng are two of seven prisoners left alive in S-21 prison when the regime fell in 1979, out of more than 14,000 inmates. They testified this week against former leader .

By Stephen Kurczy
Contributor to The Christian Science Monitor

from the July 3, 2009 edition

Phnom Penh - Thirty years after their torture inside the Khmer Rouge's notorious S-21 prison, two elderly Cambodians finally got their day in court as a cash-strapped tribunal attempts to bring justice to victims of one of the 20th century's most serious atrocities.

"I was beaten for 12 days and 12 nights," Chum Mey, one of the former prisoners, told the United Nations-backed Khmer Rouge tribunal on Tuesday, detailing how guards pulled out two of his toenails and electrocuted him in 1978.

"I have a lot of scars on my back as evidence of that torture," Bou Meng, the other former prisoner, said during his testimony the next day, dabbing his eyes with a tissue. "They put me face down and then started to beat me. They kept asking me when I entered the CIA or KGB and who introduced me to the agents."

Mr. Chum and Mr. Bou were two of seven prisoners left alive when the regime fell in 1979, out of more than 14,000 inmates. Chum said he survived because he could repair sewing machines, while Bou eluded execution by painting portraits of Pol Pot, the Khmer Rouge leader who died in 1998.

The men are two of 94 registered civil parties in the trial of S-21's former chief, Kaing Guek Eav, whose alias is Duch. He is the first of five detained former leaders to stand trial. Hearings began Feb. 17 and are expected to last through August, after which judges will determine Duch's guilt and what, if any, reparations to award victims.

'The court needs to calculate [my loss]' in monetary terms

Chum already has a request.

"I want money," he says in a recent interview at S-21 prison, now a museum, in the same room where guards tortured him to confess his involvement in the CIA. "I lost five family members – my wife and four children – and some property under the Khmer Rouge. The court needs to calculate what this equals with money."

"I want compensation from the court," adds Bou, whose wife died in S-21, in a separate interview. Unemployed and living with his children in Kandal Province, he said he struggles to afford travel costs to attend the trial in Phnom Penh. "I want to make a funeral for my wife."

The tribunal's bylaws state "collective and moral" reparations might pay for services for the benefit of victims, although the court has yet to define exactly what this means. As the case against Duch progresses, lawyers and judges are wrangling over how to reconcile the chasm between what victims want versus what the court can give.

A 'novel approach' to international justice

The hybrid court, so called because it combines elements of Cambodian and international law and features both domestic and foreign lawyers and judges, has already taken unprecedented steps to give victims a role in the proceedings. Unlike any other international criminal or hybrid court, the Khmer Rouge tribunal allows victims to register as civil parties with the right to a lawyer and the ability to ask the defendant questions and request investigation into certain crimes.

"It's a novel approach in the field of international justice," Clint Williamson, the US ambassador-at-large for war crimes issues, said at a recent press conference in Phnom Penh. "We think victim participation in the process is a positive thing, but it should not be taking place because people are seeking some type of monetary remuneration at the end of the process."

The idea of reparations raises myriad issues. (To read about what's happened in Sierra Leone and Guatemala, click here.) During Khmer Rouge rule between 1975 and 1979, about 2 million Cambodians, or a quarter of the population, died from starvation, disease, torture, and execution. Almost everyone lost family, and a study by the Documentation Center of Cambodia concluded that approximately 1 in 3 survivors today suffers from post-traumatic stress disorder.

Strong legal and public support for reparations

A victim's claim to reparations is recognized in the United Nations' Universal Declaration of Human Rights, which states that "everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or laws."

This appears to be widely accepted in Cambodia. According to a survey of 1,000 Cambodians published in January by the Human Rights Center of the University of California, Berkeley, some 26 percent of respondents said they want victims to receive support for agriculture and farming, 23 percent want health care or counseling for victims, and 22 percent want victims to get money. Supreme Court Chamber President Kong Srim said at a November conference that reparations are likely to take the form of schools, memorials, or the order of a public apology, though they could possibly be ordered in monetary form.

It is unknown from where the money would come. The current five former Khmer Rouge leaders in detention have all claimed insolvency – though this has never been seriously challenged. The tribunal's refusal to look for alternative ways of awarding money to victims disappoints and angers many of the 94 civil parties, says Kong Pisey, a Cambodian attorney representing Chum and Bou.

"Some of the victims are even jealous of the defendants – they have a nice place to live, a car that brings them to the court," says Mr. Kong.

Chum is one of them.

"[Duch and the other defendants] don't have to sleep with small containers filled with their own urine and [excrement]," he scoffs, describing his life while inside Duch's prison. "If S-21 was hell, they live in heaven."

Possible trust fund for reparations money

A vocal proponent for reparations, German lawyer Silke Studzinsky leads one of four teams of lawyers representing civil parties in the case against Duch. Ms. Studzinsky has requested the court review its internal guidelines and determine whether Cambodian law – which allows for individual monetary awards – takes precedence in the hybrid court.

Studzinsky's team has also requested the creation of a trust fund into which third parties might donate money for reparations, although the court has twice declined to forward Studzinsky's requests to the biannual plenary session of the court for consideration.

Studzinsky says she plans to raise the requests again. Awarding individual financial reparations, she says, "is part of the justice process. It is not complete if you miss this very important part."

While Studzinsky's group of civil parties is discussing ways to bring attention to the issue, including possibly staging a march in Phnom Penh, other civil party lawyers disagree about the feasibility of individual reparations.

"It could create all kinds of tensions," says Alain Werner, a Swiss attorney representing a group of 38 victims. Instead of amending the court's internal rules, Mr. Werner favors working within the confines of what the court has already approved. "We might be able to say collective reparation could be hospitals, medical care – it could be things which mean something financially to individuals," he says.