The Khmer Rouge tribunal’s top UN administrator has been quietly holding regular meetings since April with the court’s international co-prosecutor and a Trial Chamber judge, according to allegations by two defense teams who say such contact could be construed as improper.
In a Nov 2 letter sent to Deputy Director of Administration Knut Rosandhaug, Ieng Sary’s defense lawyers expressed concern that a representative from the court’s Defense Support Section was not included in the meetings between Mr Rosandhaug, Co-Prosecutor Andrew Cayley and Judge Silvia Cartwright.
Although such meetings are commonplace at international criminal tribunals, they are not provided for in the rules of the Khmer Rouge tribunal, which is a hybrid court with both international and Cambodian components.
“While matters concerning Case 002 may not have been directly touched upon at any of these meetings, a cloud of an appearance of impropriety will generally hang over the proceedings whenever a prosecutor and judge in Case 002 are meeting to discuss even administrative matters touching on the ECCC in general,” wrote Ieng Sary’s lawyers, Michael Karnavas and Ang Udom.
They said the meetings could create suspicions of ex parte communications-a term used when one party to a judicial proceeding is unrepresented when another party discusses substantive matters with a judge.
They also requested that a defense representative be included in all future meetings, and asked to view the minutes of the meetings that have taken place so far.
On Nov 4, Nuon Chea’s defense lawyers Michiel Pestman and Victor Koppe wrote to Trial Chamber President Nil Nonn to echo the Ieng Sary team’s concerns. They also raised a more serious allegation: that Mr Cayley and Judge Cartwright might have met regularly for discussions without Mr Rosandhaug’s presence.
Both defense teams said they were not aware that any meetings were taking place until late October, when Mr Pestman formally asked Mr Rosandhaug about the matter.
Mr Rosandhaug responded to their inquiry in a Nov 1 e-mail, confirming that meetings were taking place to discuss “administrative and organizational matters,” not “the substance of the cases before the ECCC.”
Both teams of lawyers said even if substantive legal issues were not discussed in the meetings, they should not have occurred without the knowledge or presence of the Defense Support Section and other interested parties.
Nisha Valabhji, the acting head of the court’s Defense Support Section, did not respond to a request for comment, but Ieng Sary’s lawyers said in their letter that Ms Valabhji was never told of the meetings or invited to participate in them.
The International Criminal Court (ICC), the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) all have administrative councils comprising the president of the court, the head prosecutor and the top administrator. These groups meet regularly to discuss non-judicial administrative matters.
A slightly different scenario is envisaged in the Khmer Rouge tribunal’s internal rules, which provide for a Judicial Administration Committee comprising three Cambodian judges and two international judges elected in a plenary session, as well as both Cambodian and international prosecutors and administrators. The committee is mandated to discuss activities related to administrative and judicial support, including the budget. Currently Supreme Court Chamber President Kong Srim heads the Judicial Administration Committee, which used to meet monthly. After a rule change in August, it now convenes “at the initiative of the president.”
Ieng Sary’s lawyers wrote in their Nov 2 letter that comparisons to the situation at tribunals such as ICTY are not meaningful here, because at ICTY the top prosecutor and the court president play a more general role in proceedings, while both Judge Cartwright and Mr Cayley will be actively participating in the coming trial of their client.
Questions submitted to both Judge Cartwright and Mr Rosandhaug went unanswered.
“As of yet Judge Cartwright is not responding to questions from journalists in general, and Knut Rosandhaug is abroad on scheduled annual leave and not available,” said court spokesman Lars Olsen, who declined to comment further.
Asked for comment, Mr Cayley responded by e-mail: “My initial posture is that I do not want to dignify these allegations with an answer but I find myself in a position where the Daily is going to publish anyway; Mr Rosandhaug is not here and Judge Cartwright is precluded from responding because of her position. So in answer to these representations by the Nuon Chea and Ieng Sary teams: Administrative management meetings such as these take place in the ICC, ICTY and ICTR. They are normal. If they did not take place, these institutions, including the ECCC, would be paralyzed.
“In answer to the Karnavas letter, which suggests that the President and Prosecutor of the ICTY are not involved in casework: this is a total misrepresentation of the truth. The President, Vice President, Prosecutor and Deputy Prosecutor are involved every day in decision making related to all cases in the court. The President and Vice President of the ICTY are judges directly involved in cases (and if Karnavas disputes this I can provide examples to him from 1995 onwards). Unlike Mr Karnavas I worked in the Office of the Prosecutor of the ICTY for 10 years. I know.
“Lastly some advice to Karnavas and Pestman: Case 002 is going to trial on 21 November 2011. No one is going to stop that. I suggest they busy themselves with reading the evidence and preparing their clients for trial.”