International judges at the Khmer Rouge tribunal have warned that the Cambodian Bar Association could be excluded from the process of organizing the participation of foreign lawyers at the court unless an agreement on fees is reached by late April.
The failure to resolve by Tuesday a disagreement over fees the bar association wishes to impose on foreign lawyers taking part in the tribunal also prompted the international judges to forgo an April 30 meeting to approve the court’s crucial internal rules, according to a statement issued by UN Assistance to the Khmer Rouge Trials.
The high fees demanded by the bar could inhibit some defense lawyers from participating and thus allow those accused to argue they had been denied the counsel of their choice, said the statement.
The Extraordinary Chambers in the Courts of Cambodia announced March 16 that fees, which would amount to $4,900 for the first year of a foreign lawyer’s participation, were the last point of discord in the internal rules debate.
Disagreement over key points in the rules had prevented the ECCC from approving them at an earlier meeting in November.
In a letter submitted to ECCC Supreme Court Chamber President Kong Srim on Tuesday, the international judges said they were “saddened” that the question of the fees had not been resolved in the two weeks since the rules committee had asked the bar to reconsider them, according to the statement.
“[T]he international judges wish to emphasize that the window of opportunity is closing quickly and they simply cannot allow for endless delays,” the statement added.
If by the last week of April an acceptable agreement with the bar has not been reached, the international judges “will propose organizing the whole process of participation from registration to discipline without the assistance of the Cambodian Bar association,” the statement added.
Bar association President Ky Tech reacted angrily to news of the ultimatum. He said that he had not yet seen the international judges’ statement but that there would be no change in his position.
“I am still keeping my stance of independence and cannot be instructed by the international judges,” Ky Tech said, adding that the bar association could not be excluded from the Khmer Rouge tribunal.
“It will be cut out only if the tribunal is carried off to be held in their own countries,” he said. Ky Tech declined further comment.
Rupert Skilbeck, principal defender in the ECCC’s Defense Support Section, said that discussions with the bar were ongoing and that a resolution remained possible.
“I am confident we can find a solution,” he said.
ECCC spokesman Peter Foster said it was unclear when another plenary session could be called to adopt the rules, though possible dates in May or June remained.
“The window is not shut. There is still time to put this together. The onus right now is on the Cambodian bar,” he said.
ECCC Co-Investigating Judge and rules committee member You Bun Leng said the internationals should not have pressured the bar association. “In the beginning, I said ‘don’t put conditions.’ But they even wrote [to the bar] setting a deadline,” he said.
The bar has already made concessions and cannot be cut out of the Khmer Rouge tribunal process entirely as its role as regulator of the legal profession in Cambodia is set down in the law, You Bun Leng said.
“This tribunal is not the UN’s tribunal so how can [the bar] be cut out?” he asked. “When foreign lawyers come to work in a foreign country, there is international law that they must respect the laws of the host country.”
However Marcel Lemonde, ECCC co-investigating judge and rules committee co-chair, said that Cambodia’s 2003 agreement with the UN does not stipulate the process by which lawyers would be allowed to appear before the tribunal.
Therefore, excluding the bar association remained a possibility, he said. “It poses no legal problem,” Lemonde said of the potential to exclude the bar.
“Whether it is accepted is another thing,” he added.