Despite months of vocal objection by lawyers for civil parties, the week-long conclave of judges gathering today at the Khmer Rouge tribunal is poised to make a radical departure from the nature of victim participation that the court began in 2007.
Under draft rules, the bulk of which appear likely to be adopted this week, the lawyers already empowered to represent Khmer Rouge victims at the court will be made subservient to a duo of lead lawyers who will be permitted to speak in their place.
Since thousands of civil parties are anticipated in the complex trials of the aging Khmer Rouge leaders that have already been delayed, the tribunal’s judges agreed last September to expedite procedures for victims’ inclusion in court proceedings and to end the practice of allowing multiple teams of lawyers to speak for individual civil parties at trial.
Though the underlying principles have already been agreed, civil party lawyers are not happy with the changes.
Olivier Bahougne, a pro bono attorney from Paris who represents 280 civil parties, said that it will be unacceptable for another lawyer to speak for his clients.
“That a person should be deprived of the right to choose their own lawyer is dire,” he said in an interview. “The draft rules presented to us are not acceptable.”
In a Jan 20 letter to the court’s nine-judge rules committee, Mr Bahougne said it was “unimaginable” for any court to prevent a lawyer from speaking for his own clients.
The confidential draft rules, a copy of which was obtained last week, call for the creation of an autonomous “lead co-lawyers section” or “victim representation section,” while the current victims unit will be renamed the “victims support section.”
While the founding statute creating the Khmer Rouge tribunal makes no mention of such a position, the two lead lawyers, one foreign, one Cambodian, will derive their powers from the new procedural rules and have “ultimate responsibility” for litigating on behalf of the civil parties, according to the draft rules.
The new rules also allow for a window of only 10 days for legal pleadings in appeals against the admission of victims as civil parties to the trials, meaning civil party lawyers may be required to defend multiple applications in that short time.
The draft rules contain no arbitration process for resolving potential disagreements between civil party lawyers and lead lawyers, who are called on “to develop consensus.”
According to Mr Bahougne, such a situation could become an invitation to dysfunction in which lead lawyers may be called on to impose their views on the people they represent. From their senior position, lead lawyers may also fail to master the facts of the case as subordinate civil party lawyers do and so expose themselves to defense challenges, he said.
“I understand these concerns and experience them every day,” Mr Bahougne said of the justifications advanced for changing victim participation. “But must we deprive ourselves of fundamental freedoms?”
In a statement last week, the court said the civil party lawyers’ support for the lead lawyers “may extend” to giving oral statements and questioning witnesses and civil parties.
However, civil party lawyer Silke Studzinsky, who represents nearly 200 clients, said it was imperative that the procedural rules enacted by the tribunal allow some freedom for civil party lawyers to act for their clients even if the lead lawyers disagree.
“We will completely be in their hands and depend on their personal performance,” she said. “Nobody can tell them what powers they allow to us.”
Lars Olsen, the tribunal’s legal affairs spokesman, said yesterday that while the plenary was empowered to revisit earlier decisions, the agenda for this week was to consider approval of rules that had already been agreed on in principle.
“We believe these changes in procedure will actually increase the rights of civil parties,” he said. “They will gain a permanent voice in the courtroom.”