Khmer Rouge tribunal judges convened in Phnom Penh on Thursday to try once more to adopt a crucial set of procedural rules that will allow the court’s long-delayed judicial work to begin in earnest.
If all goes as planned, the controversy over the 114 rules, which has stalled the court since November, will be resolved by June 13.
“We have to do our best to make this trial begin now,” said co-investigating judge Marcel Lemonde.
“If the rules are not adopted this time, it would probably be the end of the court,” he said.
The groundwork for this plenary session has been carefully laid. Both sides of the court have already vetted the draft rules, which govern everything from the participation of foreign lawyers and the resignation of international judges to the court’s administrative structure and victim participation.
International and national judges began separate meetings Thursday to discuss the final draft of the rules, in advance of the joint session that will commence Monday at Hotel Le Royal.
Tribunal Public Affairs Chief Helen Jarvis said that she was “extremely hopeful” the rules would be adopted as planned, which would pave the way for the first trial to begin late this year or early next.
In recent months the tribunal has been plagued by conflict. Judges first tried—and failed—to adopt the rules in November.
A plenary tentatively scheduled for March had to be postponed because of ongoing disagreement over the rules. Then a dispute over fees that the Cambodian Bar Association planned to charge foreign lawyers pushed back the plenary, then re-scheduled for April 30th, by another month.
Co-prosecutor Robert Petit said that despite the struggles, he was “reasonably optimistic” that the rules would be adopted this time around. Once they are, he said, he will forward the first case files to the co-investigating judges—the first step towards initiating a trial—within a few weeks.
“Everybody is quite aware that this is, if not the last chance, pretty close to it,” he said.
A copy of the draft rules dated March 16 calls for the creation of a victims unit, which will help victims file complaints. It also lays out a detailed framework for so-called civil party actions, which allow victims to participate in the criminal proceedings and seek collective reparations.
The draft also said that the ECCC will protect all victims and witnesses at the court and allow for the use of pseudonyms and anonymous testimony.
Petit said that so far the court has received few victim complaints. “It’s not as many as we would want,” he said. “I hope once the rules are settled and the victims unit is up and running we’ll get a lot more.”
Another concern for many court-watchers has been transparency, especially during the pre-trial phase.
Petit said that though the investigative pre-trial work of the court is, by law, confidential, the current draft of the rules allows co-prosecutors to make public summaries of their case files, as long as they do not damage the interests of justice and the presumption of innocence, or hamper the investigation.
“I fully intend to allow myself to do this as much as possible,” he said.
The draft of the rules also says anyone can ask for a judge to be disqualified if it seems that a judge’s personal or financial interests might affect his or her impartiality.
Petit said that the draft rules provide a solid framework, but added: “You can have the finest document in the world. If it’s not applied properly, it doesn’t mean anything.”
Three weeks ago, the UN brought in Robin Vincent, the former registrar from the special court of Sierra Leone, and Kevin St Louis, administration chief at the international criminal tribunal for the former Yugoslavia in the Hague, to assess the work of the tribunal, said Peter Foster, the tribunal’s UN spokesman.
The visit was not provoked by any particular incident or concern and is not related to the UNDP’s audit of the Cambodian human resources section of the court, Foster said.
Vincent said the evaluation had been commissioned by the UN’s Office of Legal Affairs and the UN’s controller and that he would recommend that the final assessment report be made public.
“There’s no reason it should not be circulated widely,” he said.
Foster, however, said that the report was an internal matter and was unlikely to be made public.