Khmer Rouge tribunal judges will return to negotiations next week to hash out a revised version of the court’s contested procedural rules, which they tried—but failed—to adopt in November, according to a statement released Monday.
Without the rules, which govern everything from the design of the trial chamber to the rights of victims and the defense, the long-anticipated trials of those most responsible for the crimes of the Pol Pot regime cannot proceed.
“All the judges are mindful that the upcoming Review Committee meeting is of vital importance,” the statement from the Extraordinary Chambers in the Courts of Cambodia reads.
“It must resolve all fundamental differences and agree [on] a draft text of the Internal Rules to put forward for consideration and adoption by all ECCC judges at the next Plenary,” it reads. “The judges are also acutely aware that time is of the essence.”
The rules committee meeting is scheduled for March 7 to 16 and will be held at the ECCC headquarters. If the meeting is successful, a plenary session would likely be called in April to adopt the revised rules, and the first case file could be transferred from the co-prosecutors to the co-investigating judges soon after that, the statement said.
Co-investigating judge You Bunleng said the first hearing could begin by late 2007. That is roughly six months later than initially thought. “We expect that the few remaining issues will be resolved in the coming session,” he said.
The review committee is reconvening at a time of increasing fractiousness within the court.
A UN Development Program audit, sparked by concerns over hiring procedures on the Cambodian side of the ECCC, is being conducted.
The call by the Open Society Justice Initiative—a New York-based legal watchdog—earlier this month for an investigation of allegations that Cambodian staffers had to kickback a significant portion of their salary to government officials was met with denials on the Cambodian side of the court and limited support on the UN side. In response to Open Society’s comments, the ECCC’s Director of Administration Sean Visoth said he would cease cooperating with the group, while international staffers at the court made clear they would continue to meet with representatives of the legal organization.
Starting Friday, the ECCC’s international judges will meet in Bangkok and national judges will convene in Phnom Penh for separate discussions in advance of the full rules committee meeting March 7.
“Both sides want to make sure they are all on the same page in terms of what their legal arguments are to support their positions over the remaining issues of disagreement,” ECCC Public Affairs Officer Peter Foster said.
This will be the second time judges have sat down to work out their disagreements over the rules.
A full plenary of judges in November failed to adopt the 113 draft rules as planned. People close to the court said those discussions, which were crammed into a single week, broke down largely along national lines and were weighed down by technical, cultural, and—some argued—political problems.
A committee of nine judges then met in January to hammer out a new draft of the remaining points of contention. They, too, were unable to reach an agreement. The biggest outstanding issues concerned the rights and registration of foreign defense lawyers at the court, according to a press statement from the judges at the time.
Monday’s statement said “agreement in principle” had been reached on “a significant number of contentious areas,” and that rules committee judges and their staff in Phnom Penh had been working diligently to draft specific rules based on those general agreements. “Clearly, the content of such discussions must remain confidential at this stage,” the ECCC statement added.
In the absence of procedural rules, much of the work of the court has stalled, and many people-both inside and outside the court-are eager for progress to be made.
At a Feb 13 meeting and dinner party with Cambodia’s Foreign Minister Hor Namhong, Japanese Foreign Minister Taro Aso said that he hoped the Cambodian government would show “leadership for expedited and fair implementation of the Khmer Rouge Tribunal,” according to a February news release from the Japanese Foreign Ministry.
You Bunleng said that contrary to media reports and assertions by some non-governmental groups he did not name, the delays have been driven by the technical complexity of integrating Cambodian law and international principles of justice, and not by any political malfeasance on the part of Cambodian judges.
“This lateness does not concern political issues; instead it is technical issues,” he said.
Monday’s statement from the court said that: “The work of the Review Committee is particularly challenging as the judges must ensure consistency between existing Cambodian procedure and international standards, taking into account the unique nature and structure of the ECCC, which is in many aspects different from existing international or hybrid courts.”
The Special Court for Sierra Leone may be the ECCC’s closest sibling: Sierra Leone’s tribunal is, like Cambodia’s, a mixed tribunal, but it operates with a majority of international judges. The ECCC operates under national law, albeit infused with international principles, and, over the objections of UN negotiators, has a majority of national judges.
“This was a one-time exercise in extraordinary circumstances,” Hans Corell, who negotiated both Cambodia’s and Sierra Leone’s tribunals as UN undersecretary general for legal affairs, wrote in an e-mail.
Corell added that, if international judges participate in a court under the auspices of the UN, they should always be in a majority. “The reason is that such a court would bear the hallmark of the United Nations,” he wrote. “And that hallmark must not be compromised.”
But You Bunleng said he believes that Cambodia’s court could turn out “a good model” of justice. “The mutual exchange of experience could be good for our Cambodian side,” he said. “We could take our experience from this special court to reform our current national courts.”
Provided, of course, that things get off the ground.
“These rules must absolutely guarantee that the conditions of a fair trial are reached, before we start our judicial work,” ECCC co-Investigating Judge Marcel Lemonde wrote in an e-mail.
“Of course, these discussions cannot last very long,” he wrote. “This trial must be organized now or never and, if we couldn’t adopt the Rules this spring, then there would be another reason for a withdrawal. That’s why we are currently working very hard to try and solve the remaining problems,” Lemonde wrote.