By: Rachel Killean and Maria Elander
Introduction
How did victims matter at the Extraordinary Chambers in the Courts of Cambodia (ECCC)? As a hybrid tribunal sitting in the country where the Khmer Rouge’s atrocities occurred, the Court had greater opportunities to involve victims than institutions operating at a distance, such as the International Criminal Court (ICC) or the tribunals for the former Yugoslavia and Rwanda. Its unique civil party participation regime granted victims procedural rights similar to those of the prosecution and defence. And when judicial proceedings ended, the ECCC’s residual function was originally proclaimed as having a ‘victim-related’ focus. Each of these features was at some point lauded as particularly promising. The question is: given these promises, when and how did victims actually matter?
International criminal justice has long been conceptualized as providing a promise of justice for victims. From preambles positioning victims as the raison d’être for a court’s existence, to political speeches in which victims are invoked as those in whose name justice is done, to pleas for donor funding, victims figure as both the subject and object of justice. Yet, as researchers have shown, the connection between this rhetorical figure and the actual people impacted by the crimes is far from self-evident. After decades of proceedings at international and hybrid tribunals, the conclusions from a significant body of scholarship land with a similar concern: there is a vast difference between imagined victims and actual people seeking justice, and the practices of recognising victims and providing for meaningful participation are selective at best.
Drawing on more than a decade of combined scholarly engagement with the ECCC (see here and here), including extensive empirical research and interviews with victims and practitioners, we trace five moments at which the way victims figured at the Court shifted. We focus on moments of institutional uncertainty in which actors exercised agency and choice that set the institution on a particular path, often closing off alternative options. What we find is that victims have been neither mere rhetorical figures nor consistent participants. Instead, they have mattered at particular moments, and usually when their voices strengthened other interests at the Court. Our examination of one institution from inception to closure to residual mechanism provides a rare long-term overview, and our demonstration of the ebbs and flows rejects claims of uniform either/or approaches.
Carving Space for Victim Participation in the Court’s Internal Rules
Victim participation was never directly discussed during the ECCC’s founding negotiations. Even once the Agreement between the United Nations and the Royal Government of Cambodia had been signed, the organisational planning contained no specific victim support unit or participatory mechanism. A shift in approach emerged in 2006 to 2007, when the newly constituted plenary of judges drafted a comprehensive set of Internal Rules. Drawing on Cambodia’s French-inspired civil law tradition, the Rules allowed victims who had suffered harm under the Khmer Rouge regime to apply for recognition as civil parties and to participate alongside the prosecution and defence. Once admitted, civil parties could request investigative actions, access the case file, question witnesses and the accused, and seek collective and moral reparations. This was unprecedented in international criminal justice.
The judges’ decision reflected both the global enthusiasm for victim-centred justice following the ICC’s 1998 Rome Statute and the practical need to demonstrate the Court’s legitimacy to local and international audiences at a time when its hybrid design and limited personal jurisdiction were under scrutiny. As several contemporaneous NGO submissions emphasised, enabling victims to join proceedings would bridge the gap between the Court and the Cambodian people. By embedding victims as active participants in the very architecture of the Court, the Rules performed both a normative and legitimising function: they put victims’ rights into practice while reinforcing the Court’s claim to local ownership and international credibility.
Pragmatism and Retraction in the Court’s Second Case
If the creation of the Internal Rules represented ambition, their subsequent amendment marked a turn toward pragmatism. In Case 001, ninety-three persons appeared as civil parties, each entitled to individual representation. This resulted in four separate legal teams whose uncoordinated strategies produced duplicated lines of questioning, diverse trial approaches, and significant delays. In a dramatic anti-climax, the Trial Chamber decided civil party status only at the judgment stage, recognising just sixty-four of the ninety-three who had participated throughout. That number was eventually increased to seventy-six on appeal, but not before causing significant distress. The reparations outcome was similarly deflating: finding that the accused was unable to pay and that the Court lacked authority over Cambodian institutions, the judges awarded only two of five requests, a compilation of the accused’s apologies and the publication of civil party names in the judgment.
In February 2010, the plenary amended the Rules to require that civil party status be determined during the investigative stage and created two Lead Co-Lawyers, one Cambodian and one international, to represent all civil parties collectively at trial. Individual representation was confined to the pre-trial phase, and reparations were recast to recognise externally funded projects proposed by civil society organisations. This amounted to a profound shift in both the meaning and practice of victim participation. The judges framed the reforms as necessary to balance the rights of all parties, but the underlying hierarchy of priorities was clear: the expeditious delivery of verdicts and the preservation of institutional legitimacy took precedence over the procedural rights of victims. Participation, once heralded as a means of empowerment, was reimagined to reflect the realities of administrative management.
Recognising Collective Victimisation
A renewed moment of expansion came through the Pre-Trial Chamber’s 2011 decision endorsing a presumption of collective injury. Rejecting the earlier insistence on a direct, personal link between each applicant’s harm and specific material facts under investigation, the majority reasoned that the widespread and systematic nature of the Khmer Rouge’s crimes required a correspondingly expansive understanding of who counted as a victim. This was not merely a technical adjustment; it reflected a broader recognition that the regime’s violence could not be meaningfully captured through an individualised lens. In the context of prosecutorial strategy based on perceived strongest evidence rather than necessarily representative harm, the collective approach rejected the notion that victim recognition should be confined to the specific places identified as crime sites.
Yet the expansion carried its own limits. The majority’s reasoning provoked dissent within the Chamber, most notably from a judge who warned that such a broad understanding of victimhood was incompatible with the goals and structures of civil party participation. The collective approach, while recognising broader kinship relations, was fundamentally at odds with some victims’ experiences. Among the consolidated group of civil parties were former lower-level Khmer Rouge cadres, which some civil parties found deeply challenging. Meanwhile, the recognition brought to the fore particular difficulties for the Cambodian Vietnamese minority, who had been targeted for genocide but whose presence in Cambodia continued to attract suspicion due to long-held views regarding the state of Vietnam. In institutional terms, the recognition also provided a legal foundation for the Court’s increasingly collectivised model, legitimising the grouping of civil parties under two Lead Co-Lawyers and justifying the focus on collective rather than individualised reparations. But its legacy is paradoxical: while it expanded the community of victims recognised symbolically, it simultaneously diluted the procedural voice of any one individual within that collective. The more the Court spoke of collective injury, the less audible the singular stories of harm became.
The Withdrawal of Civil Party Funding
International criminal accountability requires significant resourcing, and for much of its operation the ECCC financially struggled. Initial estimates suggested the proceedings would conclude within three years at a cost of fifty-seven million US dollars; the actual expenditure eventually exceeded three hundred million. What is notable is the way the figure of the victim functioned differently at the levels of institutional fundraising versus operational expenditure. During the fiscal crisis of 2012 to 2013, when the Court was missing millions and Cambodian staff went on strike over unpaid wages, senior officials invoked ‘Cambodia’s victim population’ as the beneficiary of donor contributions. This was an idealised collective deployed to secure the institution’s survival.
This idealised beneficiary stood in stark contrast to the treatment of the civil party apparatus in the Court’s final years. In late 2021, the Office of Administration reinterpreted the Lead Co-Lawyers’ mandate so that tasks previously considered core, such as communication with civil parties, coordination with counsel, and engagement with residual functions, were declared non-judicial and therefore ineligible for funding. The international consultant who had worked continuously with the civil party lawyers throughout the trial was dismissed. In June 2022, the International Lead Co-Lawyer resigned on ethical grounds, describing an unsustainable situation in which the Court provided no resources for outreach to more than 3,800 civil parties and expected their lawyers to fundraise externally. When the Court began to wind down, victim engagement was among the first things to go.
The ‘Victim-Centred’ Residual Phase
The ECCC entered its residual phase on 1 January 2023. Its mandate includes functions such as victim and witness protection, public information dissemination, and monitoring the enforcement of reparations. Yet in 2021, the Court signalled greater ambitions by appointing two judges as Co-Rapporteurs on Residual Functions Related to Victims. Their advisory report called for activities that would remedy shortcomings from the criminal proceedings and contribute to healing and national reconciliation. This was, with the exception of the Special Court for Sierra Leone, a virtually unprecedented idea in the history of internationalised criminal tribunals. A May 2022 workshop brought together victims, civil society, lawyers, and academics around themes including mental health, intergenerational dialogue, ethnic and religious minorities, and memorialisation.
The workshop generated significant expectations, not least because the consultation process that preceded it had genuinely engaged civil society and raised hopes of meaningful, survivor-led programming. Participants repeatedly cautioned against raising expectations without clear commitments of resources or authority, warning that renewed engagement risked reproducing earlier cycles of promise and disappointment. Those warnings proved prescient. As the residual phase unfolded, institutional priorities converged around outreach, information dissemination, and archival access, revealing a mismatch between the Court’s residual mandate and the wishes of victims and civil society. The most visible activity became the ECCC’s mobile resource centre, a bus that brings information about the Court to provincial communities. While valuable on its own terms, this falls well short of the comprehensive, participatory programme that stakeholders were led to expect. What is notable about the residual phase activities is less what they do for victims than what they do for the Court: the resource centre, the guide, the documentaries, and the mobile outreach unit are instruments of institutional narrative-building that consolidate a particular version of the tribunal’s legacy without necessarily creating new spaces for victims to shape that narrative themselves.
Conclusion
A visitor to the ECCC website in 2026 will find a smooth, well-organised overview of the Court and its legacies. The section on Victim-Survivors takes the reader to a page on reparations where each request is described in detail. It takes reading the fine print to learn that only two of the five requests in Case 001 were actually awarded. If not quite misinformation, it certainly presents certain practices in a more favourable light than the record warrants.
Taken together, the ECCC’s trajectory underscores that how victims matter in international criminal law is neither linear nor cumulative. Victims mattered at particular moments, but the form that this mattering took shifted over time: from subjects whose participation lent moral weight to the institution, to objects of governance managed, consolidated, or translated into administratively legible collectives. These different modes of mattering expanded or contracted in accordance with broader institutional priorities, revealing victim-centredness to be contingent, situational, and closely tied to moments of institutional uncertainty.
As international criminal institutions increasingly confront questions of completion and afterlife, the ECCC demonstrates that victims are most likely to matter when their presence can stabilise institutional narratives of purpose, continuity, or closure. When victims’ material needs, lived experiences, or resistant voices disrupt those narratives, they are more readily displaced by outreach, abstraction, or archival representation. The challenge for international criminal law is not only whether victims matter, but how, when, and in what form they are permitted to do so, and what is foreclosed when their mattering is confined to what institutions can most easily accommodate.
