Even as the nitty-gritty work of picking through the draft internal rules of the Extraordinary Chambers in the Courts of Cambodia proceeds—public comments are due Friday—it is clear that the challenges the tribunal faces are deeper than the 113 proposed rules can address. They are cultural, historical, political and existential. And they are not unique to Cambodia.
Perhaps the deepest issue is the fact that the drive for historical reckoning is, in some respects, at odds with the judicial legacy many hope the Khmer Rouge tribunal will leave Cambodia.
This is a fairly common problem at such courts. But it may be of particular import in Cambodia, where some have argued that the ancillary benefits of the tribunal—a fuller historical record and a more robust rule of law—may be more significant than forcing a few old men to live out the slim remainder of their days in prison.
Rupert Skilbeck, the tribunal’s chief defense coordinator, speaking Monday at a conference on the rights of the accused, cited numerous examples from other international criminal tribunals where there was friction between the requirement of judicial propriety and the thirst for historical justice.
Problem one, Skilbeck said, is the presumption of innocence. By now, with the heaps of scholarly work conducted on candidates for the prosecution, everyone knows these guys—the ailing and yet-to-be-named top leaders of the Democratic Kampuchea regime —are guilty, right?
The former leaders of the former Yugoslavia had it bad, too.
Skilbeck said that at the International Criminal Tribunal for the Former Yugoslavia, “Most Wanted” posters of indictees were hung liberally around the court’s offices. After each arrest, people would mark a big red X over that person’s face.
Nuremberg, he continued, was an inauspicious start to the history of international defense law. All the defense lawyers were members of the Nazi party, whom the German Bar Association accused of defending their clients too vigorously.
“The worst offender,” Skilbeck added, “is the Secretary-General of the United Nations [Kofi Annan], who recently stated that Charles Taylor is a war criminal. Charles Taylor is not a war criminal unless and until he can be found guilty.”
Taylor, the detained former president of Liberia, is accused of war crimes in Sierra Leone. His trial at the International Criminal Court in the Hague is set to begin in April.
Many have argued that the enormous pressure judges on war crimes courts face to convict means that the first principle of international criminal justice is often inverted: The accused must prove their innocence. Guilty verdicts, the argument goes, reassure donors their money has been well spent and satisfy victims’ thirst for retribution.
This, according to Sok Sam Oeun, executive director of the Cambodian Defenders Project, is dangerously close to one of the most troubling practices of the very Cambodian courts many observers hope the ECCC will improve on. In practice, he said, the accused is often asked in a Cambodian court if he has enough evidence to prove his innocence.
“We cannot underestimate the importance of having a strong defense,” said Richard Rogers, the deputy principal defender at the ECCC.
That is easier said than done.
Mounting a coherent defense in international criminal courts is difficult. And it is not only defense lawyers who argue that the fairness of a trial hinges on defendants’ rights. The UN International Covenant on Civil and Political Rights, for example, enshrines the rights of the accused.
Provisions guaranteeing the rights of defendants were one of the prerequisites for UN involvement in the ECCC, according to “The Khmer Rouge Tribunal,” a collection of essays recently published by the Documentation Center of Cambodia. And the ECCC has budgeted almost $4.8 million for defense council fees, which Skilbeck said was part of an attempt to avoid inequities in the strength of the prosecution versus the defense that have plagued other international criminal courts.
There are other barriers besides money that threaten to undermine the strength of the defense. Corruption is one. At the International Criminal Tribunal for Rwanda, Skilbeck said, defense lawyers were subject to a fee-splitting arrangement where they had to give kickbacks to the defendant’s family.
“The client chooses a lawyer on the condition that the lawyer pays a portion of his fee back to the client’s family,” Skilbeck said. “It was a fairly established practice in Rwanda. That isn’t allowed. There will have to be measures within the ECCC to ensure that doesn’t happen.”
International relations are another common source of friction, he said, and the rumblings of a turf war between Cambodian attorneys and their international colleagues can already be heard.
For one thing, Skilbeck’s mandate is unclear, a point Cambodian attorneys in the audience at Monday’s conference did not hesitate to point out. His office is not enshrined by the ECCC law, but by the draft internal rules of the court that are currently under consideration.
“Strictly speaking, I don’t legally exist at the moment,” Skilbeck acknowledged. Moreover, he is not authorized to practice as a lawyer in Cambodia. No foreign lawyer is right now.
“So far we have not received any applications for foreign lawyers to practice in Cambodia,” Ly Tayseng, secretary-general of the Cambodian Bar Association, told Skilbeck at Monday’s meeting.
“Maybe you should be the first one,” he added. Skilbeck smiled in response.
Given the hurdles the ECCC defense office predicts Cambodian lawyers will face before the court, cooperation may be key to justice. Skilbeck said he envisioned defense teams composed of local and international attorneys.
“The EC is technically within the Cambodian system, but there are so many differences it will seem like a different jurisdiction,” Rogers said. It will likely be the first time many Cambodian attorneys have used international criminal law, he added.
Qualifications for defense lawyers are under discussion as well. Whether Cambodian defenders will have to have experience in criminal cases, for example, before cutting their teeth on a complex genocide trial remains to be seen.
A few details show the differences clearly: The average Cambodian trial lasts 10 to 20 minutes, there may or may not be any live witnesses, and the presentation of documentary evidence is the exception rather than the rule, according to Sok Sam Oeun and Rogers.
In contrast, the UN side of the ECCC has allotted $332,300 for expert witnesses and $110,100 for an expected 150 witnesses for the prosecution and the defense. Skilbeck said the court has budgeted for a six-month trial.
The stated function of the defense office and its 15 proposed staffers is to help address those challenges by offering administrative and legal support as well as training. But it was far from clear on Monday how welcome that help would be. Several of the Cambodian attorneys present made loud protests in the name of national sovereignty.
“We have the competency to work on the Khmer Rouge Tribunal,” said Kang Rithkiry, an attorney with the Asean International Law Group, adding that “the bar association can take care of the lawyers.”
Some, including historian Steve Heder, have argued that only a fair trial that hews to the text of the law will be able to deliver to the Cambodian people valuable information not just about what happened during the regime of Democratic Kampuchea but also why.
In the ECCC, much of the work is being done now, in the private, pre-trial phase. Like other major international criminal courts, the ECCC will focus only on senior leaders and people most responsible for the horrors inflicted on the Cambodian people from 1975 to 1979. Popular demands for more far-reaching justice were met in Rwanda and the former Yugoslavia with trials by national courts and in Sierra Leone and East Timor by truth and reconciliation commissions. No comparable mechanism exists in Cambodia at the moment, and observers say it’s unlikely that one will be established.
Thus, how-and how well-the court will serve the public remains to be seen.
The trial chamber at the ECCC, which may well be modified, is at the moment an impressive half-moon-shaped, 500-seat theater, based, according to Skilbeck, on the design of the Chaktomuk Theater, the site of the 1979 trial inabsentia of Pol Pot and former Khmer Rouge foreign minister Ieng Sary, which many dismiss as a show trial.
“It’s a theater for a trial,” Skilbeck said of the ECCC site.
“If you’re trying to make it look like a show trial, you put it in a theater like that,” he added.
Most international tribunals, he said, have about three people in the audience.
“International criminal trials are actually quite boring,” he said, adding that he hoped there would be some architectural adjustments to the trial chamber to ensure that the proceedings would not be overly intimidating for defendants.
But here in Cambodia, there is a hunger for publicity about the tribunal that neither the public affairs office of the ECCC nor a mere 500-seat theater seems able to satisfy.
Ang Udom, a Cambodian attorney who attended Monday’s meeting, argued that even the defendants might enjoy a good show.
“I believe the potential suspects may be proud to see many people watch this trial because they want to prove they are innocent,” he said. “My idea is that more participation is best.”