If you’re a defense lawyer unhappy with a ruling at the Khmer Rouge tribunal, there are seven judges in the court’s Supreme Court Chamber just waiting to help you.
But they may not be able to do so until after your client has been convicted.
A change added this month to the court’s procedural rules gives it among the narrowest rights to immediate appeal of any of the international or hybrid war crimes tribunals. The change limits appeals lodged, while a trial is still in progress to matters that could end the trial altogether, matters that concern bail, the protection of witnesses, civil party applications, and allegations of interference with the administration of justice. Everything else, must wait until the verdict.
“Other decisions may be appealed only at the same time as an appeal against the judgment on the merits,” otherwise known as the verdict, according to language added this month to the procedural rules.
In order to be certain that trials are both fair and speedy, most tribunals attempt to strike a balance among the appeals that should be allowed immediately, known as “interlocutory appeals,” and those that should be addressed when appealing the final decision.
However, according to Alexander Zahar, professor of international law at Griffith University in Australia and a defense adviser to former Serb President Radovan Karadzic, who is currently self-represented at The Hague, the Khmer Rouge tribunal’s narrow right of appeal may be “unreasonable.”
“Usually, in trials of this nature, the number of potential witnesses is vast. The judges are invariably taking decisions on how to limit the number of witnesses the parties are allowed to call. Such decisions can significantly affect the strength of the prosecution or defense case. They ought to be amenable to immediate appeal in appropriate instances,” Zahar wrote in an e-mail.
From a human rights perspective, this may not be so terrible. The International Covenant on Civil and Political Rights, to which Cambodia became a state party in 1992, guarantees the right of appeal, but does not say at what point they should happen.
The International Criminal Court, for example, places similar restrictions on such appeals but also allows judges the authority to grant permission for parties to appeal. Meanwhile, the international tribunals for Rwanda and the former Yugoslavia have, especially in their earliest decisions, allowed a far broader array of matters on interlocutory appeal.
Zahar said dealing with appeals sooner rather than later helps protect a court’s appearance of legitimacy.
“Even more serious is the possibility that the appeals chamber determines, after the trial is over, that defense rights had been violated throughout some significant segment of the trial,” he said.
“This would taint the trial process and tend to bring the justice system into disrepute. It is far preferable to have significant fair-trial issues settled immediately by the appeals chamber, rather than allow them to fester, to the frustration of the accused and his lawyers.”