1 Agreement between the United Nations and the Royal Government of Cambodia for the prosecution of crimes committed during the period of Democratic Kampuchea, 6 June 2003, see <http://www.eccc.gov.kh/en/document/legal/agreement> (last visited 18 October 2013).

2 Art 2 (new) of The Law on the Establishment of the Extraordinary Chambers in the Courts of Cambodia, 27 October 2004 (NS/RKM/1004/006), see <http://www.eccc.gov.kh/en/document/legal/law-on-eccc> (last visited 18 October 2013).

3 For a comprehensive report see ‘The Future of Cases 003/004 at the Extraordinary Chambers in the Courts of Cambodia’, Open Society Justice Initiative (OSJI), October 2012, <http://www.soros.org/publications/future-cases-003-and-004-extraordinary-chambers-courts-cambodia> (last visited 18 October 2013); see also the Press Releases by the Cambodian Human Rights Action Committee (CHRAC), <http://www.chrac.org/eng/index.php?page=chrac_press_releases> (last visited 18 October 2013). On the ECCC's perception, see J. Wallace, ‘Justice in the Dock at Khmer Rouge Trials’, Al Jazeera, 30 September 2012 <http://www.aljazeera.com/indepth/features/2012/09/2012925141556917463.html> (last visited 18 October 2013); see also D. Gillison, ‘Extraordinary Injustice’, The Investigative Fund, 27 February 2012, <http://www.theinvestigativefund.org/investigations/international/1612/extraordinary_injustice/> (last visited 18 October 2013).

4 Judge Mark Brian Harmon was sworn in on 26 October 2012, see <http://www.eccc.gov.kh/en/articles/mark-harmon-sworn-international-co-investigating-judge> (last visited 18 October 2013), and there may finally be some movement with these cases. See further <http://www.eccc.gov.kh/en/case/topic/98>.

5 For more information on the ongoing trial see <http://www.eccc.gov.kh/en/case/topic/2> (last visited 18 October 2013).

6 Decision Case 002, IENG Thirith, Decision of Reassessment of Accused IENG Thirith's Fitness to Stand Trial following Supreme Court Decision of 13 December 2011, Trial Chamber, 13 September 2012, E138/1/10, <http://www.eccc.gov.kh/sites/default/files/documents/courtdoc/E138_1_10_EN.pdf> (last visited 18 October 2013).

7 See <http://www.eccc.gov.kh/en/indicted-person/ieng-sary> (last visited 18 October 2013).

8 ECCC, ‘Reaching Out to Newly Admitted Civil Parties’, The Court Report, Issue 39, August 2011, at 1, and Court Report, Issue 38, July 2011, at 6, <http://www.eccc.gov.kh/en/public-affair/publication> (last visited 18 October 2013); Decision Case 002, IENG Sary/IENG Thirith/KHIEU Samphan/NUON Chea, Decision on Appeals against Orders of the Co-Investigating Judges on the Admissibility of Civil Party Applications, Pre-Trial Chamber, 24 June 2011, D404/2/4, at 60 et seq., <http://www.eccc.gov.kh/en/document/court/decision-appeals-against-orders-co-investigating-judges-admissibility-civil-party-a-0> (last visited 18 October 2013); see also N. Kirchenbauer et al., ‘Victims Participation before the Extraordinary Chambers in the Courts of Cambodia’, Baseline Study of the Cambodian Human Rights and Development Association's Civil Party Scheme for Case 002 (2013), <http://www.ziviler-friedensdienst.org/de/publikation/baseline-study-cambodian-human-rights-and-development-associations-civil-party-scheme-case-002> (last visited 18 October 2013), at 7 and 18.

9 See. Rules 12, 12 bis, 12 ter, 23, 23 bis, 23 ter, 23 quater, and 23 quinquies of the Internal Rules (Rev. 8), 3 August 2011,<http://www.eccc.gov.kh/en/document/legal/internal-Rules> (last visited 18 October 2013). Critical of the new mechanism, Studzinsky, S., ‘Victim's participation before the Extraordinary Chambers in the Courts of Cambodia, (2011) 10 Zeitschrift für Internationale Strafrechtsdogmatik, 888Google Scholar, at 889–90; Werner, A. and Rudy, D., ‘Civil Party Representation at the ECCC: Sounding the Retreat in International Criminal Law?’, (2010) 8 Northwestern Journal of International Human Rights 3Google Scholar, 301, at 306.

10 Meaningful participation encompasses (i) being properly and continuously informed, (ii) being enabled to take informed decisions, and (iii) getting involved by using the full range of participation rights, To achieve meaningful participation adequate resources are indispensable. Such participation is possible, see Studzinsky, S., ‘Participation Rights of Victims as Civil Parties and the Challenges of Their Implementation Before the Extraordinary Chambers in the Courts of Cambodia’ in Bonacker, T. and Safferling, C. (eds.), Victims of International Crimes: An Interdisciplinary Discourse (2013), 175, at 184 et seqGoogle Scholar.

11 Judgment Case 001, KAING Guek Eav alias Duch, Trial Chamber, 26 July 2012, E188, <http://www.eccc.gov.kh/en/documents/court/judgement-case-001 > (last visited 18 October 2013).

12 Appeal Judgment Case 001, KAING Guek Eav alias Duch, Supreme Court Chamber, 3 February 2012, F28, <http://www.eccc.gov.kh/en/document/court/case-001-appeal-judgement> (last visited 18 October 2013).

13 It is worthy to note that that all parties (accused, prosecution, and civil parties) appealed. The accused made a challenge against the jurisdiction of the ECCC, the prosecution appealed for increasing the sentence and for altering his conviction for crimes against humanity, and the civil parties appealed against the rejection of numerous civil party applications and also requested reparations that had been denied by the Trial Chamber.

14 90 applicants participated in the trial and were granted civil party status or interim civil party status by the Trial Chamber. Later the Trial Chamber rejected 24 civil parties within its judgment. On appeal 10 more individuals were admitted by the Supreme Court Chamber, see Appeal Judgment Case 001, supra note 12, paras. 535 et seq.; in more detail, Studzinsky, supra note 9, at 887–8; ADHOC Baseline Study, supra note 8, at 3–4.

15 Appeal Judgment Case 001, supra note 12, paras. 630 et seq., para. 717.

16 Internal Rules refers to the ECCC Internal Rules. Hereinafter, all Rules within this article without further indication are those of the ECCC Internal Rules, Revision 8, supra note 9.

17 Code of Criminal Procedure of the Kingdom of Cambodia, Khmer – English Translation, September 2008, <http://cambodia.ohchr.org/klc_pages/KLC_files/section_011/S11_CriminalProcedureCode2007E.pdf> (last visited 18 October 2013). Interestingly, the Cambodian Code of Criminal Procedure cannot be found on the homepage of the Court under ‘legal documents’ although it is the basis and first source according to Art. 12 of the Agreement on the ECCC and Arts. 20 new, 23 new and 33 new of the Law on the Establishment of the ECCC as amended, 27 October 2004, <http://www.eccc.gov.kh/sites/default/files/legal-documents/KR_Law_as_amended_27_Oct_2004_Eng.pdf> (last visited 18 October2013). In this regard, Article 12 (1) of the Agreement on the ECCC (supra note 1) states:

18 Decision Case 002, Decision against Nuon Cheaʾs Appeal against Order Refusing Request for Annulment, Pre-Trial Chamber, 26 August 2008, paras. 14–15, <http://www.eccc.gov.kh/en/document/court/decision-nuon-chea-appeal-against-order-refusing-request-annulment> (last visited 18 October 2013). An appeal against this decision was not successful, see Civil Party Co-Lawyers’ Joint Request for Reconsideration of the Pre-Trial Chamber's Assessment of the Legal Status of the Internal Rules in the Decision on Nuon Cheaʾs Appeal against Order Refusing Request for Annulment, 13 October 2008, <http://www.eccc.gov.kh/en/documents/court/civil-party-co-lawyers-joint-request-reconsideration-pre-trial-chambers-assessment-l> (last visited 18 October 2013).

19 Internal Rules, original version as of 12 June 2007.

20 Revisions of the Internal Rules take place at all international(ized) tribunals and derive from a common law understanding as ordinary procedural provisions governing the internal work process. For the sake of efficiency and speeding up the proceedings, they can be amended by a plenary of the judges. For example, the International Criminal Tribunal for the Former Yugoslavia revised its Rules of Procedure and Evidence over 40 times. However, there must be a certain degree of consistency and fundamental procedural rights cannot be abrogated.

21 The amendments of the Internal Rules are problematic because the preamble of the Rules reiterates that their purpose is to consolidate applicable Cambodian procedure for procedures before the ECCC. Through the amendments of the rules, the judges supposedly abrogated existing Cambodian procedures and developed a new system of victim participation that departs from the existing – and preceding! – Cambodian system of civil party participation.

22 Rule 23 bis (1) reads:

23 In an earlier version of the Internal Rules this link was not required. It was only required to suffer harm from a crime under the jurisdiction of the court, which is a much broader requirement.

24 Decision Case 002, Decision of Appeals against Orders of the Co-investigating Judges on the Admissibility of Civil Party Applications, Pre-Trial Chamber, 24 June 2011, paras. 56–7, <http://www.eccc.gov.kh/sites/default/files/documents/courtdoc/D404_2_4_EN-1.PDF> (last visited 18 October 2013).

25 Decision Case 002, supra note 24, para. 86. The Office of the Co-Investigating Judges had earlier taken a narrow approach and rejected 48 per cent of civil party applications in Case 002, but the Pre-Trial Chamber overruled this standard and took the quoted broader approach. See also Studzinsky, S., Das ECCC und die Nebenklage- Hoffnungen und Enttäuschungen’, in Goeb, A. (ed.), Das Kambodscha-Drama - Menschheitsverbrechen im Khmer Rouge-Staat und der Prozess der späten Sühne (2013)Google Scholar, at 10 et seq.

26 Decision Case 002, Decision of Civil Party Participation in Provisional Detention Appeals, Pre-Trial Chamber, 20 March 2008, C11/53, para. 36, <http://www.eccc.gov.kh/en/documents/court/ptc-decision-civil-party-participation-provisional-detention-appeals> (last visited 18 October 2013). Contrary to this, advising against civil party participation during the hearing of provisional detention, Amicus Brief Case 002, Amicus Brief by Christoph Safferling on the Issue of Civil Party Participation, Pre-Trial Chamber, 20 February 2008, C11/39, <http://www.eccc.gov.kh/sites/default/files/documents/courtdoc/Amicus_Christoph_Safferling_C11_39_EN.pdf> (last visited 18 October 2013).

27 Rule 23 ter (1) and (2).

28 Rule 89 bis (2) foresees opening statements by the co-prosecutors and a response by the accused. This Rule deviates from the Cambodian Procedure Code, which does not mention any opening statement, in accordance with civil law practice. The requests of civil parties to be allowed to make an opening statement in Case 001 and to submit preliminary remarks in Case 002 were rejected. The Trial Chamber ruled that this is because civil parties are not mentioned in Rule 89 bis, nor in the Cambodian Procedure Code, omitting that, according to domestic law, no party has the right to an opening statement. With regard to Case 001, see Decision on the Request of the Co-lawyers for Civil Parties Group 2 to Make an Opening Statement during the Substantive Hearing, 27 March 2009, E23/4, <http://www.eccc.gov.kh/en/documents/court/decision-request-co-lawyers-civil-parties-group-2-make-opening-statement-during-subs> (last visited 18 October 2013). The – publically available – request can presently not be found on the website of the ECCC, but a copy is on file with the author: Urgent request of Co-Lawyers for Civil Parties Concerning their Right to Submit an Opening Statement during the Substantive Hearing, 16 March 2009, 001/18-07-2007-ECCC/TC. Further, with regard to Case 002, see Lead-Co-lawyers’ and Civil Party lawyers’ Request to Make Brief Preliminary Remarks on behalf of Civil Parties after Co-prosecutors’ Opening Statement, 2 November 2011, E131/4, <http://www.eccc.gov.kh/en/document/court/lead-co-lawyers%E2%80%99-and-civil-party-lawyers%E2%80%99-request-make-brief-preliminary-remarks-beha> (last visited 18 October 2013); Trial Chamber response to Lead Co-lawyers and Civil Party Lawyers’ Request to Make Brief Preliminary Remarks on Behalf of Civil Parties (E131/4), 15 November 2011, E131/4/1, <http://www.eccc.gov.kh/en/document/court/trial-chamber-response-lead-co-lawyers-and-civil-party-lawyers%E2%80%99-request-make-brief-pr> (last visited 18 October 2013). It should be noted that at the ICC victims ‘may’ submit an opening statement in accordance with the ICC Rules of Procedure and Evidence.

29 Decision Case 001, Decision on Civil Party Co-Lawyers’ Joint Request on the Standing of Civil Party Lawyers to Make Submissions on Sentencing and Directions Concerning the Questioning of the Accused, Experts and Witnesses Testifying on Character, Trial Chamber, 9 October 2009, E72/3.

30 Decision Case 001, supra note 29, paras. 40 and 48; see also para. 25: ‘(. . .) does not confer a general right of equal participation with the Co-Prosecutors’, <http://www.eccc.gov.kh/sites/default/files/documents/courtdoc/E72_3_EN.pdf> (last visited 18 October 2013).

31 As a third novel concept, one single claim for collective and moral reparations was introduced by Rule 23 (3) clause 3, 23 quinquies.

32 ‘Sixth ECCC Plenary Session Concludes’, ECCC Press Release, 11 September 2009, <http://www.eccc.gov.kh/sites/default/files/media/ECCC_Plenary_11_Sep_2009_Eng.pdf> (last visited 18 October 2013); further Petit, R. and Ahmed, A., ‘A Review of the Jurisprudence of the Khmer Rouge Tribunal’, (2010) 8 Northwestern Journal of International Human Rights 2, 165, at 174Google Scholar.

33 At present, there are 39 different civil party lawyers.

34 In a similar vein already Werner and Rudy, supra note 9, at 306; see also FIDH, A New Scheme for Civil Party Representation before the ECCC: Victims to Bear the Highest Burden in Implementing the Need for an Expeditious Trial, 3 March 2010, <http://www.fidh.org/A-new-scheme-for-Civil-Party> (last visited 18 October 2013).

35 In contrast, civil parties in Case 001 were grouped by the Trial Chamber into four different groups according to different legal representatives. Moreover, there were only 93 civil party applicants in Case 001, whereas Case 002 requires the grouping of 3,866 civil parties.

36 Similarly, Mohan, M., ‘The Paradox of Victim-Centrism: Victim Participation at the Khmer Rouge Tribunal’, (2009) 9 International Criminal Law Review 1CrossRefGoogle Scholar, at 26 et seq.

37 ‘Q & A – The Landmark ICC Decision on Victim's Representation and Participation in the Kenya Cases, Redress, 18 October 2012, <http://www.vrwg.org/home/home/post/39-q–a—the-landmark-icc-decision-on-victims–representation-and-participation-in-the-kenya-cases/> (last visited 18 October 2013).

38 Prosecutor v. Francis Kirimi Muthaura and Uhuru Muigai Kenyatta, Situation in the Republic of Kenya, Decision on Victims’ Representation and Participation, Trial Chamber V, 3.10.2012, ICC-01/09-02/11-498, para. 25, <http://www.icc-cpi.int/NR/exeres/BDF9BAD9-04F9-4ED2-9E5D-174FF143BC5A.htm> (last visited 18 October 2013).

39 T. Batchvarova, ‘Comment on the Victims Decision of Trial Chamber V’, 18 October 2012, <http://humanrightsdoctorate.blogspot.de/2012/10/comment-on-victims-decision-of-trial.html> (last visited 18 October 2013).

40 Order Case 002, Severance Order Pursuant to Internal Rule 89 ter, Trial Chamber, 22 September 2011, E124, <http://www.eccc.gov.kh/sites/default/files/documents/courtdoc/E124_EN.PDF> (last visited 18 October 2013).

41 Order Case 002, supra note 40, para. 8.

42 Sperfeldt, C. and Fitzgibbon, W. (eds.), ‘Victim Participation in the Extraordinary Chamber in the Courts of Cambodia’, First CHRAC Monitoring ReportGoogle Scholar, 26 November 2008, at 3 <http://www.chrac.org/eng/index.php?page=chrac_reports> (last visited 18 October 2013).

43 Practice Directions on Victim Participation, Rev. 1, 27 October 2008, <http://www.eccc.gov.kh/en/document/legal/practice-directions> (last visited 18 October 2013).

44 Rule 12 bis Internal Rules and Article 1.2 of the Practice Directions on Victim Participation.

45 Oeung, J. and Sperfeldt, C. (eds.), ‘Victim Participation in the Extraordinary Chamber in the Courts of Cambodia’, Third CHRAC Monitoring ReportGoogle Scholar, 30 November 2010, at 3 <http://www.chrac.org/eng/index.php?page=chrac_reports> (last visited 18 October 2013).

46 ADHOC assists almost 50 per cent of the civil parties in Case 002 outside the courtroom, logistically and administratively, see ADHOC Baseline Study, supra note 8, at 8.

47 In more detail, ADHOC Baseline Study, supra note 8, at 9, 22 et seq.

48 An overview of most NGO activities is given by Oeung, J. and Lach, S. T., ‘An Overview of Civil Society Roles of Civil Society in the Process of Transitional Justice and Reconciliation in Cambodia’, CHRAC, Khmer Rouge Tribunal (KRT) Watch BulletinGoogle Scholar, Issue 1, April 2012, <http://www.chrac.org/eng/index.php?page=chrac_reports> (last visited 18 October 2013).

49 J. Herman, ‘Reaching for Justice: The Participation of Victims at the Extraordinary Chambers in the Courts of Cambodia, Policy Paper No. 5, Center on Human Rights in Conflict (CHRC), September 2010, at 5, <http://www.uel.ac.uk/chrc/publications/documents/CHRCReachingforJustice2010.pdf> (last visited 18 October 2013).

50 CHRC Policy Paper No. 5, supra note 49, at 3–4.

51 Jasini, R. and Phan, V., ‘Victim Participation at the Extraordinary Chambers in the Courts of Cambodia: Are Retributive and Restorative Principles Enhancing the Prospect of Justice?, (2011) 24 Cambridge Review of International Affairs, 3CrossRefGoogle Scholar 379, at 385 and 387.

52 The term ‘civil party participation’ implies that the victim is a full party to the proceedings with extensive rights to make use of its participation through oral statements and filings. However, at the ECCC there has been a steady erosion of civil party participation and representation rights. See J. Wallace, ‘Losing Civil Parties in Cambodia’, Radio Netherlands Worldwide, 18 January 2012, <http://www.cambodiatribunal.org/sites/default/files/news/Losing%20Civil%20Parties%20in%20Cambodia.pdf> (last visited 18 October 2013).

53 Decision Case 002, supra note 30, para.13.

54 Appeal Judgment Case 001, supra note 12, paras. 355 et seq. In particular, the accused (i) cooperated with the ECCC and ‘assisted in the pursuit of national reconciliation’ (para. 366), (ii) and showed remorse (para. 369). While one might follow the argumentation of the Supreme Court Chamber in the regard that ‘the mitigating impact of the foregoing factors is limited at best’, and acknowledge the aggravating circumstances and magnitude of the crimes (para. 371), it is doubtful that the highest possible sentence is appropriate. Given the fact that the accused was also illegally detained by the Cambodian Military Court between 10 May 1999 and 30 July 2007, which the Trial Chamber took into account, reducing the sentence by five years, the message by the Supreme Court Chamber vis-à-vis human rights and illegal detention is not a positive one. Contrary, J. D. Ohlin, ‘Cambodia Tribunal Increases Duch Sentence to Life, 6 February 2012, <http://opiniojuris.org/2012/02/06/cambodia-tribunal-increases-duch-sentence-to-life> (last visited 18 October 2013), and idem., ‘Proportional Sentences at the ICTY’, in Swart, B., Sluiter, G., and Zahar, A. (eds.), The Legacy of the International Criminal Tribunal for the Former Yugoslavia (2011)CrossRefGoogle Scholar, on whose retributive considerations and sentencing theory the Supreme Court Chamber partly relied. While I agree with Ohlin to the extent that ICL sentencing needs a coherent theory, this theory cannot be based solely on retribution, but must take into account utilitarian theories. Ohlin's one-sided approach leads to unbalanced, high sentences, as mitigating factors will not be taken into account and perpetrators – no matter whether they co-operate, show remorse, etc. and irrespective of their position and role – will always receive sentences at the very high end of the scale due to the core crimes they committed. Last, but not least, international criminal tribunals are not meant to punish perpetrators as revenge, but should assist in promoting international peace and collective security through rebuilding society and reconciliation. See further Ambos, K., ‘On the Rationale of Punishment at the Domestic and International Level, in Henzelin, M. and Roth, R. (eds.), Le Droit Pénal à L'Épreuve de L'Internationalisation (2002), 305, at 312 et seqGoogle Scholar.

55 For similar experiences, regarding the first verdict of the Trial Chamber, see J. Tiller, ‘The Challenges of Victim Participation in the Extraordinary Chambers in the Courts of Cambodia’, 14 April 2011, <http://cesice.upmf-grenoble.fr/manifestations/the-challenges-of-victim-participation-in-the-extraordinary-chambers-in-the-courts-of-cambodia-par-justine-tillier-133429.htm> (last visited 18 October 2013); S. Mydans, ‘Anger in Cambodia over Khmer Rouge Sentence’, New York Times, 26 July 2010, <http://www.nytimes.com/2010/07/27/world/asia/27cambodia.html?_r=0> (last visited 18 October 2013).

56 Chum Mey, a successful civil party in Case 001, expressed his disappointment about the Trial Chamber's verdict: ‘We are victims two times, once in the Khmer Rouge and now once again.’, See Mydans, supra note 55; see also ‘Recent Developments at the Extraordinary Chambers in the Courts of Cambodia’, Report OSJI, February 2012, at 7, <http://www.soros.org/sites/default/files/cambodia-eccc-20120223.pdf> (last visited 18 October 2013). In this context, it needs to be mentioned that Chum Mey himself was a low-level Khmer Rouge cadre. Many perpetrators later became victims themselves, and a clear distinction of categories, such as (i) perpetrator, as opposed to (ii) victim, is not that easy in the Cambodian context; see inter alia M. T. Ea and S. Sim, ‘Victim and Perpetrators?, Testimony of Young Khmer Rouge Comrades’, Documentation Center of Cambodia (2001). Other civil parties were more satisfied with the conviction, for example Vann Nath.

57 Sá Couto, S., ‘Victim Participation at the International Criminal Court and the Extraordinary Chambers in the Courts of Cambodia: A Feminist Project?’, 18 Michigan Journal of Gender & Law, 297, at 314Google Scholar.

58 Decision Case 002, supra note 26, para.37; also Decision Case 002, supra note 24, para. 65.

59 CHRC Policy Paper No. 5, supra note 49, at 8.

60 Sá Couto, supra note 57, at 350.

61 The ICC speaks of Common Legal Representative for Victims (CLRV) and the ECCC speaks of civil party lead co-lawyers (CPLCL). Basically, both have the idea of one common representative who streamlines the applications and filings of victims.

62 In the same vein, see Mohan, supra note 36, at 43.