Officials from the Khmer Rouge tribunal failed to agree on crucial procedural rules Saturday, opening the possibility that the court will have to delay handing down its first indictments of the Democratic Kampuchea regime’s aging leaders.
Officially, the court’s timetable has not changed; several Extraordinary Chambers in the Courts of Cambodia officials said they hoped indictments would be delivered in the first three months of next year, as initially planned.
But co-prosecutor Robert Petit said he had hoped to follow an accelerated schedule and begin the first case by the end of this year. That’s no longer likely to happen.
“Without rules, and given the depth of disagreement on some of these issues, it would be reckless to forward a case,” he said in an interview Sunday.
The 113 proposed rules provide the procedural underpinnings of the court—from investigation through trial and appeal—and they govern the roles of judges, co-prosecutors, defense lawyers, victims, suspects, and witnesses. Without their approval, which had been slated for Saturday, the trial cannot proceed.
A statement issued Saturday by the tribunal highlighted four points of contention, first among them the integration of Cambodian and international law.
In addition, the statement said there was disagreement over the role of the defense support unit, including how defense lawyers will be qualified and how the tribunal will operate within the structure of Cambodian courts.
Moreover, the statement said the plenary session, which convened Nov 20, had not had adequate time to address in detail issues such as the role of victims and civil party rights.
A committee will begin working to resolve the outstanding differences and will call another plenary session as soon as possible, according to the ECCC’s statement.
That committee consists of five Cambodian judges—Prak Kimsan, Mong Monichariya, You Bun Leng, Kong Srim, and Sin Rith—and four international judges—Marcel Lemonde, Silvia Cartwright, Claudia Fenz, and Agnieszka Klonowiecka-Milart. A date for the next plenary session has not been set.
Privately, people close to the negotiations said the plenary session was split along national lines, with the Cambodian side generally forming one bloc and the international side another.
“It was really tense at the beginning,” said one person close to the proceedings who spoke on condition of anonymity. “There was shouting back and forth.”
He added that the abrupt “North American” negotiating style didn’t go down well with the Cambodian side, and that international judges with experience working in Asia spent their coffee breaks calming down frustrated colleagues. “You can’t expect it to work in Phnom Penh the way it does in The Hague,” he said.
Cultural issues aside, ECCC officials said that, in retrospect, the plan to adopt the rules after just six days of deliberation was overly ambitious. “Put 19 Canadian judges in a room to adopt such a complicated legal framework and you would not be able to adopt such complex rules in six days,” Petit said. “Part of the problem is we expected to be able to do this when we shouldn’t have.”
The most public dispute involves the role of the Defense Office of the ECCC and the process by which foreign lawyers will be certified to practice in Cambodia.
On Saturday, Cambodian Bar Association president Ky Tech issued a letter to the members of the bar informing them that a training workshop on international criminal law that the Defense Office and the International Bar Association had planned to offer this week violated Cambodian law.
The letter also said that the Defense Office of the ECCC lacked a clear legal basis. The role of the Defense Office is enshrined in the very internal rules of the court the plenary session failed to adopt Saturday.
Ly Tayseng, secretary-general of the Cambodian Bar Association, said that the bar had no intention of blocking the progress of the tribunal.
The Bar Association maintains that, under Cambodian law, it has the sole and exclusive right to control and approve training programs. On Dec 4, the Cambodian bar, in association with the Australian Bar Association, will offer a four-day course in general techniques of defense.
“Our intention is only to ensure compliance with Cambodian law,” Ly Tayseng said. “We are protecting the international interests and international justice. The international community always wants to see that a country has a strong legal system and [that] the law is respected.”
He said the bar would allow foreign lawyers to practice in Cambodia, provided they comply with the nation’s laws. He said currently foreign lawyers can be certified to practice in Cambodia under certain conditions, but even then they must work in conjunction with a Cambodian lawyer. Whether and how those conditions might be modified for foreign lawyers wishing to practice at the ECCC, he said, is up to the bar council.
Ly Tayseng said he welcomed the delay in adopting the internal rules because it would allow for more careful and thorough discussion—a sentiment that has been echoed by international observers such as Amnesty International, which last week issued a statement urging the court not to rush its work.
But other observers say the need for care must be balanced with expediency. “The rules should have been done a long time ago,” said Theary Seng, executive director of the Center for Social Development.
As for this most recent delay in adopting the internal rules, she said: “How much of it is political, how much is personal…I can’t put percentages on.”
(Additional reporting by Yun Samean.)