The central theme of this article is to assess whether the mandate of national reconciliation has been fulfilled in the ECCC. Recent retreats in the scope of victims’ participatory rights reveal a palpable gap between the Court’s rhetorical promises and the manifested reality. This article begins with providing some justifications for the primitive role given to national reconciliation. Then, in traversing the evolution of international criminal justice, this article highlights its departure from the traditional model of the exclusive retributive justice paradigm. Rather, there is a synergy of the retributive justice and the restorative justice paradigms within international criminal trials in the 21st century. The expanded role of victims in proceedings and the ECCC reparation regime will then be examined in this context. This article will thereafter emphasize the recurrent themes that could promote victims’ rights and herald the fulfilment of national reconciliation.
ECCCProsecutorv. Kaing Guek Eav “Duch” Decision on Civil Parties’ Co-Lawyers’ Joint Request for a Ruling on the Standing of Civil Parties Lawyers to make Submissions on Sentencing and Directions Concerning the Questioning of the Accused Experts and Witnesses Testifying on Character Trial Chamber No. 001/18-07-2007/ECCC/TC 12 October 2009 <www.eccc.gov.kh/sites/default/files/documents/courtdoc/E72_3_EN. pdf> 29 June 2012.
ECCC Internal Rulessupra note 22 Rule 23 quinquies (1)(a) provides that “if an accused is convicted the Chambers may award only collective and moral reparations to civil parties. Collective and moral reparations for the purpose of these rules are measures that acknowledge the harm suffered by civil parties as a result of the commission of the crimes for which an accused is convicted”.
McGonigle (2009)supra note 20 pp. 132-133.
ICCThe Prosecutorv. Dyilo Judgment on the Appeal of Mr. Thomas Lubanga Dyilo Against the Decision of Pre-Trial Chamber I The Appeals Chamber No. ICC-01/04-01/06 13 February 2007 p. 13.
ICCProsecutorv. Lubanga Dyilo Decision of the Appeals Chamber on the Joint Application of Victims a/0001/06 to a/0003/06 and a/0105/06 concerning the “Directions and Decision of the Appeals Chamber” of 2 February 2007 The Appeals Chamber No. ICC-01/04-01/06 OA8 13 June 2007 para. 19 (per Judge Pikis in a concurring opinion).
ICCProsecutorv. Thomas Lubanga Dyilo Judgment on the appeals of The Prosecutor and The Defence against Trial Chamber I’s Decision on Victims’ Participation of 18 January 2008 The Appeals Chamber No. ICC-01/04-1/06-1432 OA 9 OA 10 11 July 2008 paras. 54-58.