High Fees Would Open Gate to Appeals: Former US War-Crimes Official

David Scheffer, former US ambassador at large for war crimes issues (1997-2001), was the lead US negotiator in talks to establish the Extra­ordinary Chambers in the Courts of Cambodia and the International Crim­inal Court, as well as tribunals for Rwanda, Yugoslavia and Sierra Leone. In an e-mail Tuesday, he an­swered questions from Douglas Gillison about the dispute over fees for foreign lawyers at the ECCC.

Q. The tribunal’s international judges have threatened to exclude the Cambodian Bar Association from the ECCC unless its reduces the fees it wants to impose on foreign lawyers at the court. What is your view of their position?

A. The international side’s position is entirely reasonable. The Cam­bo­dian Bar Association’s proposal is unprecedented for the participation of defense counsel in international or hybrid criminal tribunals. It’s very important to avoid a situation where the only defense lawyers willing to represent defendants be­fore the ECCC will be those prosperous enough in their existing prac­tices to afford the proposed CBA fees. Those lawyers likely would come from West European and North American practices, and very few would step forward from Africa, Latin America, Asia, or the Pacific. Thus a built-in prejudice for “Western” lawyers would be thrust upon the defendants by virtue of the economics alone. The fatal flaw in the CBA proposal is that it is premised on gouging the income of foreign defense lawyers for the benefit of the CBA, rather than hold­ing paramount the due pro­cess rights of Cambodian defendants before the ECCC.

I would have thought that if the true aim of the CBA is to raise funds in order to help support competent legal representation of indigent Cambodians in the Cambo­dian legal system, then bar Presi­dent Ky Tech should spend his time and considerable talent seeking grants from a few foreign governments to directly support Cam­bodian lawyers who currently cannot afford to represent the indigent because of lack of funding. But it is entirely unprecedented, and un­seemly, to require foreign defense counsel before the ECCC to shoulder that burden by gouging their in­come, which will be modest by in­ternational standards in any event.

Q. Cambodian tribunal judges say senior foreign defense lawyers could easily afford to meet the bar’s demands. Would the fees really dissuade potential defenders?

A. It is important to remember that foreign defense counsel must leave their current practices in their home countries, incur substantial costs to travel and live in a foreign country, hire staff who can work in Cambodia, factor in lost income from abandoned cases back home, and specialize in atrocity crime trials that are minimally relevant to their criminal defense work back home for the future.

Q. Do you feel that the strategy of international judges in publicly issuing an ultimatum over this issue makes reaching a compromise less likely?

A. The obstinacy of Ky Tech left the international judges with no choice but to pub­licly lay out the facts, up­hold international standards of due process, and await common sense and good reason to prevail. Months of patient neg­otiations on this issue resulted in continued stale­mate, a fact that inevitably leads to public pronouncements…. There has been much focus on the international judges’ statements about walking out of the entire pro­cess. In effect, however, Ky Tech has been threatening a Cam­bodian withdrawal from the ECCC if he does not get his way. Remark­ably, he has gotten away with this without any discernable intervention by Cambodian authorities or the Cambodian judges on the ECCC to straighten out this mess. Either Ky Tech controls the fate of jus­tice in Cambodia, or the Cambo­d­ian government through its appropriate ministries and judicial organs does. Which is it? Must we conclude that Ky Tech is speaking for the government?

Q. The ECCC’s rules committee announced March 16 it had re­solved all differences over the court’s internal rules. Is the question of fees really worth jeopardizing the life of the tribunal?

A. The CBA fees dispute is not a rules dispute per se, but the failure to resolve it imposes an artificial imbalance on the defendants that cannot possibly be tolerated in a court premised on in­ter­national standards…. Nor would the high fee structure be defensible by UN ad­ministrators and legal counsel, who must ans­wer ultimately to the member states of the UN and the donor na­tions of the ECCC…. There are thresh­­olds of due process and competency below which the ECCC cannot de­s­cend. But it is a far too dangerous game to play “gotcha” on any single issue and make that the last stand for continuing with the ECCC. In the end, the parties must compromise within reason. The en­tire world is watching, so who really wants to be identified as the fool? No one should want to be the reason historians years from now describe the collapse of the ECCC.

If convicted, a suspect who is denied the counsel of choice could appeal that issue. I would think this would be a particularly strong appeal if the denial of counsel of choice was caused by exorbitant local bar fees of little or no relevance to the work of the ECCC. How such an appeal would fare, of course, is unpredictable, but it is entirely reasonable to assume that the effort would be made.

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