The Pre-Trial Chamber at the Khmer Rouge tribunal has been laid out to create an image of studious parity.
There are the prosecutors, who rise to address the court from behind a solid bench, an array of youngish, well-dressed staff behind them. Next to the prosecutors, the civil party lawyers rise and fall at a bench of their own. And across the room, the defense attorneys, their client seated in a wooden docket just to their left, address the court from behind an equally respectable dais.
Prosecutors face defense attorneys. The defendant faces the victims. Everything seems square and properly confrontational.
But court critics now argue that this clear geometry belies deeper inconsistencies at the court, chief among them money.
The fact is that it pays far more to defend an alleged war criminal than it does to stick up for one of his alleged victims. And at the moment, those who side with the accused at the Extraordinary Chambers in the Courts of Cambodia will have their salaries paid by the UN, leaving the attorneys for victims to scrape together their uncertain financial future.
“It is a little bit unfair,” said Hisham Mousar, who has been monitoring the tribunal for local rights group Adhoc.
The tribunal’s new budget request includes $699,500 for the court’s Victim’s Unit. That money would cover five case managers, but does not provide for legal aid staff.
In contrast, $5.74 million has been budgeted to cover legal fees for a predicted eight Khmer Rouge defendants, an average cost of $717,533 per case.
Cambodian defense attorneys at the tribunal make about $6,000 a month, according to the court’s Defense Support Section. For now, the German aid organization DED is covering the cost of civil party lawyers.
“We want to see many civil parties recognized,” said Andreas Selmeci, who coordinates DED’s programs on the Khmer Rouge tribunal. “In an ideal world the court could provide. I still hope the court will do so,” he said.
This year DED gave Legal Aid of Cambodia and the Cambodian Defenders Project $35,000 each to pay victim lawyer fees. An additional $35,000 went to the Cambodian Human Rights Action Committee, a coalition of 23 rights groups, to cover the cost of a lawyer to draw victims together into meaningful groups so they can better interact with the court.
Selmeci said he’s particularly concerned about making sure that groups like the Cham Muslims, who historians say suffered fierce, targeted oppression under the Khmer Rouge, are brought into the legal process.
“They probably need a lawyer for the process of getting recognized as a civil party. It’s important to use every chance to get a genocide charge into discussion,” he said.
Selmeci said negotiations were ongoing with another donor, whom he would not name, to pick up the tab after DED funds dry up. And many say international attorneys have already offered to work for victims pro bono.
The ECCC too has begun to scratch for funds for victim lawyers.
Gabriella Gonzalez-Rivas, deputy head of the Victim’s Unit, said the court hopes to get funds for outreach and legal assistance. Discussions are ongoing, she said.
“We very much understand the importance of being able to provide support, even if it is modest,” she said.
ECCC Public Affairs Chief Helen Jarvis said the court is stuck between a fiscal rock and a hard place when it comes to victim legal aid. “On one hand, we’re getting responses that the budget is high and should get cut back. At the same time, there are proposals to add this on, which is a substantial item,” she said.
Even if the court does get more funding for victims, it’s unlikely that civil party attorneys will start taking home $6,000 a month.
Rupert Skilbeck, the head of the tribunal’s Defense Support Section, said salaries for defense attorneys had been set at parity with prosecutor salaries, leaving civil party lawyers out of the loop entirely.
Moreover, civil party attorneys have a different status under international law, he said.
The International Covenant on Civil and Political Rights, a key UN human rights agreement, mandates legal aid money for the accused but not for victims.
“The reason is many countries simply can’t afford to pay legal fees for non-criminal matters,” he said. In Europe, however, civil parties do have the right to legal aid money, he said.
“In some ways, it would be best if we applied the higher standard, as in Europe,” Skilbeck said. That, he added, is a question for donors to decide.
Selmeci, however, worries that paying Cambodian victim attorneys $6,000 a month would distort the legal aid sector.
“This will destroy the Cambodian institutions that are providing pro bono legal assistance to poor people,” he said.
“A lawyer who takes on a challenging task should get good pay to provide services to his client. But we want those lawyers to still be available to poor and marginalized Cambodians.”
