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Q&A: Lawyers Nushin Sarkarati and Daniel McLaughlin on the Khmer Rouge Tribunal

Cambodian villagers walk to enter a courtroom before the first appeal hearings against two former Khmer Rouge senior leaders, Khieu Samphan and Nuon Chea, at the U.N.-backed war crimes tribunal in Phnom Penh, Cambodia, Thursday, July 2, 2015. The two former Khmer Rouge leaders are facing charges of genocide, war crimes and crimes against humanity. (AP Photo/Heng Sinith)

The Center for Justice and Accountability based in San Francisco has conducted litigation for victims of the Khmer Rouge for many years.

[Editor’s Note: The Center for Justice and Accountability is an international human rights organization based in San Francisco, CA. CJA has conducted litigation for victims of the Khmer Rouge for years. VOA Khmer reporter Sok Khemara recently interviewed two of its attorneys, Nushin Sarkarati and Daniel McLaughlin, by email.]

VOA: As the international co-investigating judge has finished looking at Khmer Rouge leaders in cases 003 and 004, will the Center for Justice and Accountability assist victims again in any new cases?

NS and DM: Yes, the Center for Justice and Accountability is presently assisting Cambodians in the U.S. diaspora provide their personal or family history under the Khmer Rouge to the Extraordinary Chambers in the Courts of Cambodia, through a victim information form. These forms must be filled out if the individual would like to participate in the next trials, known as Cases 003 and 004, as civil parties. The survivor's history will in turn assist the Office of Co-Investigating Judges before the Court to identify whether the individual is a victim of the crimes they are investigating in Cases 003 and 004, and may even help provide the Court with additional information on crimes and harms committed at the locations under investigation. For Cases 003 and 004, CJA has been reaching out to torture treatment centers, mental health centers, and community organizations that work with Khmer Rouge survivors in the US diaspora to facilitate participation in this innovative program of victim led evidence.

In the process of healing and reconciliation, how important is it for Cambodian survivors in the United States to join the litigation?

In Case 002, there were 45 civil parties that CJA represented from the United States. Of those 45, the histories from eight of the survivors were relied upon in the judgment against Khieu Samphan and Nuon Chea. All of these survivors have been recognized formally by the Court as victims of the crimes perpetrated by the two senior Khmer Rouge leaders, and one of our survivors, Sophany Bay, was even acknowledged in the oral pronouncement of the judgment as a victim of these crimes. This indicates that the U.S.-based survivors played a strong role in providing the evidence necessary to hold the senior leaders of the Khmer Rouge accountable. Such acknowledgment and truth telling has a powerful impact on the victim community. And we want to provide an opportunity to more survivors in the US, who have not yet had an opportunity in submitting Victim Information Forms to the Court, to do so now.

There are hundreds of thousands of Cambodian people who fled to the U.S. after the killing fields. How many people do you hope come forward?

We have, to date, partnered with six organizations around the U.S. and have assisted over 40 survivors to complete their forms. Given that CJA is small, we are attempting to educate community groups and organizations working with the U.S.-based survivors to assist members of their own community. These organizations do not need CJA to fill the forms out on behalf of the victims, but we will make ourselves available to organizations that would like guidance and information on the process and can also directly assist their survivors, free of charge, in filling out the forms.

When one decides to be a civil party, what is the criteria? What will they do?

Victims of crimes that are under investigation in Cases 003 and 004 may apply to become civil parties to these cases. If the survivor was a direct victim of the crimes under investigation, or one of their family members was a victim of these crimes, then they are eligible to apply. Whether or not someone can participate in a case as a civil party depends first and foremost on whether the cases move forward to trial. Case 004 is currently under investigation and the investigation in Case 003 has now closed. Whether or not the judges that investigated these cases found enough evidence to permit the claims to move forward to trial is a decision that is still pending. The majority of victims that participate as civil parties will only be able to contribute their evidence through these forms, or through supplemental interviews with their attorney.

Is it difficult to find potential civil parties in the United States?

The scope of the investigation in Cases 003 and 004 are much more limited than the previous cases against Nuon Chea and Khieu Samphan. In order to assist victims who may wish to apply to be civil parties, the Court has listed the crimes and locations that are relevant to their investigation. This information is on the Court's website. Any individual with information about the crimes or locations [included in these cases], is encouraged to submit a civil party application. Nevertheless, any victim of the Khmer Rouge regime may also submit their evidence and participate as Complainants, who are individuals that wish to contribute their information to the Court to be used in investigations. The Court has completed its investigation in Case 003 against Meas Muth and as of now, is no longer accepting Civil Party applications. However, survivors with information related to the crimes and locations being investigated against Meas Muth may still submit a Victim Information Form to the ECCC to provide any evidence they may have in support of this investigation.

What kind of reparations in these cases would work for the victims?

If the accused are found guilty, Civil Parties have a right to an award which addresses the harm that they suffered. The Court will not give monetary awards to the Civil Parties or to any other survivors. Instead, the Court can grant what the Court calls “collective and moral” reparations. These are awards that benefit a large group of survivors and have a symbolic value. Such reparations could aim to preserve history and educate future generations, to honor victims and survivors and/or to disseminate information about the trial. For example, in the first trial against Nuon Chea and Khieu Samphan, the Court awarded 11 reparations to the victims.

The court is not sure if they can move the cases ahead as the Cambodian side as well as the government do not want these remaining cases to progress. Are you concerned about the legal process?

Although allegations of government interference were brought to light by human rights organizations, it appears that the Court is actively moving forward with their work in Cases 003 and 004. They have completed the investigations against Im Chaem, Ao An, and Meas Muth, and only the investigation against Yim Tith continues. We are confident that if strong enough evidence was collected for these investigations to move forward to trial, they will do so.

What will happen to the court’s legacy if all of the charged persons or some of them in the two remaining cases are acquitted?

The legacy of the ECCC is more likely to be measured by the fairness of the trials that it holds, rather than the number of convictions it obtains. Any charged person is presumed innocent and is entitled to a fair trial, during which the co-prosecutors and lead civil party lawyers can present evidence seeking to establish their guilt before the ECCC judges.

Do you think victims understand this process of justice?

Individual participation in Cases 003 and 004 is clearly a deeply personal decision. Khmer Rouge survivors may have a variety of reasons for wanting to engage with the court. We don’t claim to speak for any of these victims but we have been told that for some it is because the trials will provide some sense of justice, however imperfect. For others, participation is important because they see it as a means of educating the next generation, both here in the United States and in Cambodia, about the atrocities of the Khmer Rouge period. Part of our work with victims is to provide them with information about the court’s functioning, to be honest about its potential benefits and shortcomings and to set realistic expectations about what can be achieved. We also hope that CJA can also continue to function as a hub for reliable information on the ECCC for organizations and individuals affiliated with the Cambodian-American community.

This interview was edited for length and clarity.