Unresolved issues in the internal rules for the Khmer Rouge tribunal could hobble the defense, and without vigorous counsel for Khmer Rouge leaders, the proceedings could be undermined, the tribunal’s chief defense coordinator warned Monday.
Rupert Skilbeck, principal defender at the Extraordinary Chambers in the Courts of Cambodia, told potential defense attorneys that they must be vigilant in protecting the presumption of innocence of their clients.
The ECCC made the court’s draft internal rules public Nov 3 and is seeking comments on them until Friday.
Skilbeck said his office will be submitting official comments on the rules this week, but pointed out some key concerns Monday at a discussion with some 20 potential defense lawyers organized by the Cambodian Justice Initiative.
“With a forceful defense and a fair prosecution we can make it a tribunal that will work effectively,” Skilbeck said in an interview. “If [the trials] are seen as a show trial, they will be rejected.”
Under the draft ECCC rules, Skilbeck’s office will help advise, train and organize defense teams for the aging Khmer Rouge leaders who are destined to stand trial for crimes committed between 1975 and 1979.
Skilbeck said that his office, which is now in the process of hiring staff, needs to begin research soon because co-prosecutor Robert Petit has indicated publicly that the prosecution could begin accusing defendants before the end of this year.
To do that, issues with the internal rules, which are scheduled to be adopted by Nov 25, need to be addressed, and the selection process for defense attorneys needs to be established, Skilbeck said.
High on the defense’s list of problems is the possibility of former Khmer Rouge chiefs being tried in absentia.
International and local judges on the tribunal cannot agree whether trials in absentia should be allowed, according to a footnote in the draft rules.
The international judges believe that anyone convicted in absentia should have the right to a retrial once they do finally appear in court. But this would be a problem at the ECCC, which has an official life span of only three years, and for the Cambodian judges who believe that rights to retrial are unnecessary.
Skilbeck pointed out that in the draft rules, there is no provision to disqualify judges if they have engaged in corruption or have taken direct orders from outside parties, and said his office would push for that to be included.
The draft rules also do not contain a right for suspects to remain silent.
“Basically this means that they can be made to answer question after question up to the point where the defendant actually says he did it,” Skilbeck said.
Under the current draft of the internal rules, defense attorneys must seek permission from the trial judges to submit a question to a witness—a holdover from the French legal system.
Skilbeck and his deputy, Richard Rogers, said that such a practice would deviate from other international war crimes tribunals.
Another cause for concern, Skilbeck said, would be that many procedural decisions that normally take place in public trials would be made behind closed doors by the pretrial chamber.
And the internal rules fail to make clear if defense attorneys will be allowed to conduct their own investigations—a feature of the Anglo-Saxon legal system—or if the investigation judges will control that process as is common in France.
Given the vast amount of evidence, Skilbeck said, attorneys should be allowed to begin investigating as soon as arrests are made.
Heather Ryan, a trial monitor for the Open Society Justice Initiative, said witness protection is another major concern of the draft internal rules.
“There are some detailed provisions for witness protection but the problem is adequate funding to put it into effect in a truly meaningful way,” Ryan said.
Skilbeck said that defense witness protection was especially crucial.
“We can’t get this wrong because if witnesses are killed or intimidated, then you can’t have a fair trial,” he said. “The pressure on defense witnesses not to give evidence is enormous.”
Lawyer Ang Udom asked the meeting whether official protection measures would be extended to defense attorneys, who could be in danger for agreeing to defend the Khmer Rouge.
The most immediate problem facing defense lawyers, however, is the process of selecting a defense. And much of Monday’s discussion was taken up by discussion of how much control the Cambodian Bar Association will exercise over the selection process.
Under competing proposals, either the bar or the principal defender is expected to create a master list of defense lawyers from which defendants may choose a representative, but it is still not clear if foreign lawyers will even be allowed to defend Khmer Rouge leaders.
A key issue is whether the bar association law will be amended to allow foreign lawyers to practice in Cambodian courts. The required amendment to the bar law is something the government has not yet announced it is prepared to do.
Skilbeck said negotiations are underway with the bar to determine how foreign lawyers could be admitted quickly so the vital defense work could begin imminently.
Ly Tayseng, secretary-general of the bar association, said most of the bar’s 490 members were unaware of Monday’s discussion session and claimed that local lawyers were being left out of the ECCC process.
The defense office is also seeking to limit the size of the audience at the tribunal, which currently seats 500.
“This is a theatre,” he said. “It is potentially extremely intimidating.”
The proposal has already sparked controversy.
“My experience is that when there is media, and others, present at the trial, the judges are more careful to implement justice,” Ang Udom said.
Skilbeck also said that his office will be objecting to the legality of the four-cell interim detention facility at the ECCC as inadequate in terms of size and services provided to the defendants.
After the discussion, Cambodian Defenders Project Director Sok Sam Oeun said the immediate challenges facing those who take part in the defense of Khmer Rouge leaders are very basic but enormous.
“We [will] have difficulties to find evidence to defend the people that the whole country says are bad,” he said.
(Additional reporting by Prak Chan Thul)