Remedying Victims Of Khmer Rouge Crimes With Sustainable Healthcare Through Reparations Or Transitional Justice Principles
By Michael G. Karnavas
Michael G. Karnavas was commissioned by the Documentation Center of Cambodia (“DC-Cam”), funded by USAID, to examine and propose healthcare as a means of reparation’s to victims of the Khmer Rouge. His paper was published 11 May 2022.
Victims of large-scale human rights violations have a fundamental right to reparations grounded in the Universal Declaration of Human Rights and international human rights treaties such as the International Covenant on Civil and Political Rights. Unfortunately, rarely, if ever, are mechanisms adopted and implemented that would meaningfully redress the victims. The Cambodian victims of the violations of human rights committed during the Democratic Kampuchea (“DK”) period of 1975 to 1979 – many of whom were admitted as Civil Parties participating in proceedings at the Extraordinary Chambers in the Courts of Cambodia (“ECCC”) – are no different.
Although virtually the entire population was severely traumatized during the DK period, formal mental healthcare services for the survivors, as well as others, have been either lacking or woefully inadequate to meet demand. The ECCC – which was established by an Agreement between the United Nations and the Royal Government of Cambodia to “brin[g] to trial senior leaders of Democratic Kampuchea and those who were most responsible for the crimes and serious violations” in Cambodia between 17 April 1975 and 6 January 1979 – can only award non-compensatory and symbolic reparations.
Given this gap, DC-Cam has been advocating that Cambodia and the international community can and should do more to repair victims of the Khmer Rouge atrocities. As part of DC-Cam’s ongoing initiative to implement a program that sustainably supports the health and welfare of survivors, this paper explores: (a) to what extent providing healthcare services for DK period victims fits within the reparations frameworks of the international(ized) criminal courts and tribunals, including the ECCC; and (b) whether absent such possibilities, healthcare services should be provided as part of a transitional justice package designed to help Cambodian society sustainably deal with the legacy of the DK period.
Concluding that the reparations frameworks of international(ized) criminal courts and tribunals and the ECCC show that providing healthcare services as a reparations measure is effectively unrealizable, this paper provides recommendations on implementing a sustainable healthcare initiative in Cambodia as a transitional justice measure and presents further areas for exploration.
Interested in hearing Michael’s pull-no-punches observations about the ECCC and its legacy? Pour yourself a glass and settle back to listen to this wide-ranging interview he gave DC-Cam.
The Kosovo Specialist Chambers’ Rules of Procedure and Evidence: More of the Same Hybridity with Added Prosecutorial Transparency, an article by Michael G. Karnavas, has been published in the International Criminal Law Review.
The Rules of Procedure and Evidence of the Kosovo Specialist Chambers incorporates procedural rules from Kosovo’s domestic legal system, innovative and useful modalities, procedural rules, practice directives, and lessons learned from the other international(ised) criminal tribunals. Based on a presentation given by Michael G. Karnavas on 22 June 2018 at Leiden University’s Grotius Centre Supranational Criminal Law Lecture Series — The Kosovo Specialist Chambers: Comparative Legal Perspectives — this article provides a defence perspective on some of the modalities found in the Rules of Procedure and Evidence. In the author’s opinion, some of the provisions on disclosure provide greater protections of fair trial rights for suspects and accused during the confirmation and pre-trial stages than the rules of other international(ised) criminal tribunals, while also maintaining the schizophrenic features found in these international(ised) jurisdictions — placing the burden of proof on the prosecution while granting the trial judges discretionary authority to engage in truth-seeking activities.
For an earlier discussion of the Kosovo Specialist Chambers, see Michael’s seven-part series:
On May 29, 2017, The Cambodia Daily published an opinion piece by Michael G. Karnavas. The piece appears below:
Opinion: Violent Threats Could Spur ICC Investigation
by Michael G. Karnavas
The Cambodia Daily reported last Friday that Prime Minister Hun Sen gave a speech to 4,000 faithful of Cambodia’s Christian Community on Phnom Penh’s Koh Pich island.
He claimed that only a Cambodian People’s Party (CPP) win in the upcoming elections will ensure peace and development in Cambodia. Mr. Hun Sen then expressed his willingness to “eliminate 100 or 200 people” if the opposition were to take any actions that would lead to the “overthrow” of the CPP. Continue reading “The Cambodia Daily – Opinion: Violent Threats Could Spur ICC Investigation”
On May 15, 2017, The Cambodia Daily published an opinion piece by Michael G. Karnavas. The piece appears below:
MAY 15, 2017
By Michael G. Karnavas
Last week it was revealed that the Co-Investigating Judges (CIJ) of the Extraordinary Chambers in the Courts of Cambodia (ECCC) confidentially informed the parties in Cases 003, 004, and 004/02 and the Office of Administration that they were considering invoking what amounts to a nuclear option: a permanent stay of the proceedings due to a lack of funding. Submissions were invited.
Court-watchers and “experts” immediately weighed in with claims of political interference. Judge Martin Karopkin, a reserve Judge of the Trial Chamber, joined the fray. Disquieting as his remarks may be, I admire Judge Karopkin’s honesty. Continue reading “Opinion: Due Process Not Negotiable, Even in Khmer Rouge Tribunal”
On 2 August 2016, a prosecution expert lashed out at the Defence while being cross-examined at the ECCC. The judges of the trial chamber sat silent. In an opinion piece published 8 August 2016 in The Cambodia Daily, Michael G. Karnavas takes the judges to task for their complicit passivity.
Apathy Signals Open Season on Defense Lawyers in Case 002
On August 2, 2016, Henri Locard, testifying as an “expert” in Case 002, lashed out at Khieu Samphan’s lawyer, Anta Guisse, claiming to have been put under “cold torture” the previous day when examined—“Historian Accuses Tribunal Lawyers Of ‘Cold Torture,’” (August 3).
The reference to cold torture, for those who have not followed the trial, is about one of the methods employed by Kaing Guek Eav, better known as Duch, at S-21, or Tuol Sleng, in extracting confessions. Mr. Locard then went on to say that if Ms. Guisse continued to apply cold torture, after three days maybe he would gift his persona to Angkar, implying that the questioning was a form of re-education to conform his thinking to that of the Democratic Kampuchea regime. Continue reading “Judges called to task for failure to defend the defence”
On 6 July 16 The Cambodia Daily published a commentary by Michael G. Karnavas, entitled Inducing Case 003 Outcome: US Purse Strings Wielded as a Whip. Heather Ryan, a consultant to the Open Society Justice Initiative, responded in a commentary, Tribunal Is Tainted by Political Interference, but Not From US, published on 12 July 16. Mr. Karnavas replied in the following commentary, Consultant’s Analysis of US Senate Bill Cherry-Picks Facts, published on 13 July 16.
Consultant’s Analysis of US Senate Bill Cherry-Picks Facts
BY MICHAEL KARNAVAS | JULY 13, 2016
In an op-ed published on Tuesday—“Tribunal Is Tainted by Political Interference, but Not From U.S.”—Heather Ryan, a consultant to the Open Society Justice Initiative, responded to my commentary concerning U.S. Senate Appropriations Committee bill S.3117, wherein I asserted that the Senate is effectively engaging in political interference, impliedly calling on the co-investigating judges to indict my client, Meas Muth. Continue reading “Cambodia Daily publishes Karnavas rebuttal to defence of US Senate’s ECCC interference”
On 6 July 2016, The Cambodia Daily published a commentary by Michael G. Karnavas on US Senate Appropriations Committee Bill S.3117. The bill, as explained in the Committee’s Report, seeks to tie US funding of the ECCC to the indictment of Mr. Meas Muth in Case 003. Mr. Karnavas calls out the bill’s drafters on their disregard for international standards of justice and respect for the rule of law, and for their lack of understanding of the very procedural rules with which they seek to tamper.
Inducing Case 003 Outcome: US Purse Strings Wielded as a Whip
BY MICHAEL KARNAVAS | JULY 6, 2016
Last Wednesday, the U.S. Senate Appropriations Committee approved a bill: S.3117. Buried 221 pages into that bill is a provision that would stop U.S. contributions to the Extraordinary Chambers in the Courts of Cambodia unless the U.S. secretary of state certifies and reports to the committee that the ECCC “will consider Case 003.” Continue reading “Cambodia Daily publishes Karnavas commentary on US Senate pressure on ECCC to indict in Case 003”
Geneva meeting: Defence Offices at the International Criminal Courts
On 22 and 23 October 2015, Michael G. Karnavas participated in the Third International Meeting of Defence Offices at the International Criminal Courts in Geneva, Switzerland.
During a Round Table session on the Overview of the issues faced by the defence before the international criminal courts, Karnavas addressed the lack of meaningful right to counsel in seeking post-conviction relief at the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) which have phased into the Mechanism for International Tribunals (MICT). According to the MICT Registry, it will only grant legal aid for post-conviction issues in exceptional circumstances and only after a judicial order. Former Accused and convicted persons may engage pro bono Counsel to represent them before the MICT. The absence of an entitlement to legal assistance does not prevent the MICT from assisting convicted persons in obtaining Counsel to assist with post-conviction matters and the Registry is therefore currently establishing a list of pro bono Counsel. As Karnavas bluntly explained: If Defence Counsel want to work for free, MICT will let them, although MICT will not even promise to appoint that Counsel if there is an issue that warrants appointment. Ludicrous. Continue reading “Recent Events: Geneva meeting on Defence Offices at the International Criminal Courts; Skopje evidence training”
On November 8, 2014, the Association of Defence Counsel Practising Before the International Criminal Tribunal for the Former Yugoslavia (ADC-ICTY) held an ethics training in The Hague, The Netherlands. Program attendees included ADC-ICTY members, interns and staff, as well as defence team members from the International Criminal Court (ICC) and the Special Tribunal for Lebanon (STL), staff of the ICTY/ICTR/MICT Registry, Prosecution and Chambers, and students from various universities around The Hague. The Keynote address, which appears below, was delivered by Michael Karnavas. Continue reading “Karnavas delivers ethics keynote in The Hague”
The ECCC has jurisdiction over “senior leaders of Democratic Kampuchea and those who were most responsible” for certain crimes within the ECCC’s jurisdiction. Randle DeFalco’s article Cases 003 and 004 at the Khmer Rouge Tribunal: The Definition of “Most Responsible” Individuals According to International Criminal Law, concludes that the suspects in Cases 003 and 004 fall within the meaning of “most responsible” and that the only legally sound option is to bring the cases to trial.
According to Michael G. Karnavas:
DeFalco’s analysis is result-determinative and based on the premise that if the suspects are not found “most responsible” there will be no other trials and the suspects would escape criminal responsibility. Although DeFalco’s basic approach to determine the meaning of “most responsible” is sensible, through his analysis he commits several errors that lead him to his pre-determined conclusion. DeFalco’s conclusions are unsurprising when considering his association with Documentation Center of Cambodia (“DC-Cam”) and interest in verifying its pre-determined conclusion that genocide and crimes against humanity occurred in Cambodia.
Click here to read Karnavas’ full critique of DeFalco’s arguments, which has been submitted to DC-CAM for publication.