No Justice?

The latest publication to weigh in on the ECCC is the Economist with this gloomy story on the progress of the court. It laments the lack of funds, staff and political will, and questions how it will be possible to proceed. The author appears to be willing to give up on the process before it has even begun, seeing the hurdles as being just too high to overcome. The article even suggests that the international judges are 'sending a message' that they may not want to proceed even if the UN does.

Hard to know if all this is based on the authors own view of situation, or if the judges have been given off-the-record comments about their imminent departure. Meanwhile, there has been no indication of any work stoppage at the court, and several members of the ECCC have been appearing in front of the Cambodian Journalists Club to talk up the court and push them to keep up local news coverage.

At the same time, according the the Cambodia Daily, 'official letters' have been moving back and forth between the Deputy Prime Minster Sok An and the United Nations in New York over the Extraordinary Chambers Defence Office. The good news I supposed is that everyone is still talking to each other and working. The bad news... well I guess we will see what happens at the end of January.

No justice in this world
Dec 19th 2006 | PHNOM PENH
From The Economist print edition
Death is more likely than the law to catch up with the Khmers Rouges

“THINGS are going well,” says Robert Petit, a Canadian co-prosecutor at the UN-backed tribunal set up to try Khmers Rouges leaders for their atrocities. Five months after it started work, he says he is ready to recommend the first indictment as soon as the tribunal's Cambodian and international jurists have agreed on its rules of procedure. Sadly, no one is sure when, or even if, that will happen. Human Rights Watch, a lobby group, believes that “political interference has brought the whole process to a screeching halt.” A plenary meeting of Cambodian and foreign judges convened in late November to reach agreement. It proved a disastrous exercise in mutual incomprehension. Cambodian judges, who appeared to be taking instructions from elsewhere, reportedly complained that there was not enough time to get through the 113 articles in the draft rules, and that they paid too much heed to international, not national, law. The foreigners resisted but were dismayed by the refusal of the Cambodians to engage in serious discussion.

It was never going to be easy to deliver justice to victims of the Khmers Rouges 28 years after the end of their rule, which killed up to 2m people. Top leaders, starting with Pol Pot, have already died. With every delay it is more likely others will be dead before indictment. The tribunal's official title, the Extraordinary Chambers in the Courts of Cambodia (ECCC), hints at its limitations. Compared with the recent tribunals on former Yugoslavia and Rwanda, Sierra Leone and East Timor, Cambodia's is much more firmly based in national law. Under the agreement wrung by Hun Sen, the prime minister, from a reluctant UN in 2003, it is the first to have a majority of national judges.

Unfortunately, existing Cambodian law is weak on the crimes the tribunal is investigating. Worse, the judiciary is one of the world's least qualified and most corrupt. Human-rights groups say it is not an instrument of justice but a political tool. Moreover, Hun Sen and other prominent government figures are themselves former Khmers Rouges and are assumed to remain sensitive about the tribunal's investigations and its targets for prosecution.

The tribunal remains dogged by other weaknesses. There is a disturbing lack of safeguards for witnesses. The meagre budget so far provided by Japan and Western governments leaves the ECCC acutely short of manpower and equipment. Jim Goldston, a leading American international jurist has accused governments of feebly acquiescing in “official ineptitude, power-grabbing and duplicitousness”.

The tribunal has given its rules committee until the end of January to agree on procedures that meet international standards. If it does, these will go to a new plenary, probably in February. If not, Ban Ki-moon, the new UN secretary-general, will have to decide whether to exercise the opt-out clause inserted in the UN's agreement with Cambodia—precisely for fear of political interference. But even if the UN does remain engaged, the message foreign judges are sending is that they may not.

Duch and Letters to New York

A few interesting stories in the local news this week. First an article from the Phnom Penh Post asking if it is right for one of the most notorious Khmer Rouge leaders, Duch, to have been left in a military without a trial or any charges. He was apparently arrested under the ECCC law, but is still under the authority of the Cambodian government until the ECCC is ready to start prosecuting. Shadows of ‘GITMO’ here. He clearly belongs behind bars, but how can he be held without charge while others walk free? The ECCC Spokesperson notes that he is still under government authority so it is up to them to resolve the issue. It unlikely they will free him before the start of the ECCC trials, so expect the issue to be raised at his defence.

In the Daily we have a far more interesting story of a letter from the Deputy PM Sok An to the United Nations Headquarters. The letter indicates the governments unhappiness with the Defence Support Section of the ECCC and then suggests it might be good to open a ‘political dialogue’. That could mean reopening the whole negotiation process. It no wonder many are calling it the second step (after stalling on the Internal Rules) of a concentrated effort by the Cambodian government to stall the trials until every potential criminal has died. The mood of the ECCC staff can not be too positive these days.

Calls for infamous Duch to go free
By Charles McDermid and Sam Rith

The pretrial detention of Kaing Khek Iev, better known by his nom de guerre Duch, is drawing increased criticism from attorneys, analysts and international human rights groups such as Amnesty International. Duch, former commandant of the Khmer Rouge torture and interrogation center S-21 at Tuol Sleng, has been incarcerated in a military prison without trial since 1999.

A London-based spokesperson for Amnesty International wrote to the Post on December 14 that Article 9 of the International Covenant of Civil and Political Rights (ICCPR), which Cambodia ratified in 1992, guarantees the right of anyone arrested or
detained to be brought promptly before a judge or judicial officer and tried within a reasonable time or freed.

"Duch is obviously no exception, and must be allowed to enjoy these basic human rights," the spokesperson said by e-mail. "Even though the case against Duch may be complicated and establishment of the Extraordinary Chambers has been delayed, over six years in pretrial detention is clearly not in compliance with international standards."

And in Phnom Penh, an American legal expert is maintaining that abuses of Duch's basic human rights may present serious problems for prosecutors should he be indicted by the Extraordinary Chambers in the Courts of Cambodia (ECCC).

"This goes directly to the heart of the Khmer Rouge Trials - and whether it's going to operate pursuant to international standards of due process and fair trial," said Jeffrey Kahan, legal adviser to the Cambodian Defenders Project....... (more in the article)

_____________________________________________

Monday, December 18, 2006
Sok An Calls for UN 'Dialogue' On KR Defense

By Erika Kinetz
THE CAMBODIA DAILY

Cabinet Minister Sok An has written to the UN asking to open a "dialogue" to resolve the acrimonious dispute over the role of the defense support section of the Extraordinary Chambers in the Courts of Cambodia. This apparent return to talks after nearly a decade of tortuous political discussion to establish the Khmer Rouge tribunal has worried some observers.

In a letter dated Dec 5, Sok An said the defense section was established without proper consultation with the Cambodian government. He also took the tribunal's outspoken Principal Defender Rupert Skilbeck to task for making several "unilateral decisions" since he arrived Oct 1.

In the letter, addressed to Nicolas Michel, undersecretary general for legal affairs and legal counsel at the UN in New York, Sok An charges that the administration, role and functions of the ECCC's defense support section, as well as its relationship with the Bar Association of Cambodia, were not outlined in the agreement between Cambodia and the UN that formed the basis for the tribunal.

"[T]he concept seems to have evolved within the thinking of the UNAKRT [United Nations Assistance to the Khmer Rouge Trials] and staffing and budget requirements were developed without any reference to the Cambodian side," Sok An wrote.

Sok An also claimed that Skilbeck's appointment was "insufficiently attuned to the specificity of the ECCC and its position 'within the courts of Cambodia'." He added that Skilbeck has taken several decisions, including renaming the defense support unit as the defense office and disseminating information about its role, without consulting Sean Visoth, the ECCC's director of administration.

In the letter, Sok An also said that the problems with the defense support section had led to "an extremely difficult situation with a significant impact on the entire ECCC," and asked to open a dialogue directly with the UN to resolve the matter.

Sok An said he was too busy to speak with a reporter Sunday evening. Skilbeck declined to comment. Information Minister and government spokesman Khieu Kanharith could not be reached for comment. "The letter was a request by the Cambodian government for clarification on some ECCC issues," tribunal press officer Peter Foster said in an e-mailed statement. "The relevant departments are now discussing how best to address these clarifications and provide a response," he said.

One diplomat familiar with the letter questioned whether it was a stalling tactic or a genuine attempt to resolve the matter. "Is it an attempt to slow down the process or an urgent attempt to resolve this, or is it simply because the principal defender irritates the Cambodians because of his abrasive attitude in their view?" the diplomat asked. "I don't know," he added.

Others took a harder line. "It’s foot dragging," said Theary Seng, president of the Center for Social Development. "We are almost one-third of the way through the life of the court already. Money is being spent. Still we haven't touched the substantive matter."

The role of the defense support section is enshrined in the draft internal rules, which ECCC judges failed to adopt at a plenary session last month, but discussions of such a unit date back to at least December 2003.

UNAKRT officials met with Ky Tech, the president of the Cambodian Bar Association, and Sok Sam Oeun, the executive director of the Cambodian Defenders Project, in December 2003 to discuss defense counsel for the tribunal.

At that time, according to a UN report, Ky Tech said he had concerns about the capacity of Cambodian lawyers to provide an adequate defense before the ECCC and considered it a "necessity" that Cambodian defense lawyers be assisted by at least one foreign lawyer.

It was out of these and other concerns about the remuneration of foreign defense counsel that the idea for a defense support unit was born.

The 2003 agreement between Cambodia and the UN gives defendants the right to counsel of their choice and states that the UN is responsible for the remuneration of defense lawyers. In recent weeks, however, Ky Tech has refused to recognize the defense office, and warned bar members that they would break the law if they attended training that it had sponsored.

Contacted last week, Ky Tech declined to comment on the 2003 meeting.

A defendant's right to an independent and competent defense at the ECCC is a point most international observers say is non-negotiable. "This is an issue international judges could walk out over," one court observer said on condition of anonymity.

"Independent, competent defense counsel is the bedrock of international due process standards."

(Additional reporting by Prak Chan Thul)

Films at the FCC

Last night saw the premier of a new short film on the Khmer Rouge period and the coming Khmer Rouge Trials. The film was produced by KID with help from OSJI- two very active NGOs in Cambodia. The English premier was at the venerable FCC and the place was packed.

The film was a very interesting and well done. It showed interviews with families from various parts of Cambodia and filmed them discussing the Khmer Rouge period. The contrast between the pain and and horror in the stories told by the grandparents, and the utter disbelief by the younger generation was shocking. In one section of the film a young man flatly denies that his mother's stories could be true because as he put it 'they don't make any sense'. He is then taken to one of the mass grave sites and his reaction to seeing the evidence of the genocide is one of the most powerful moments in the film.

The premier in Khmer will be on the 16th and 17th at the Chenla theatre in downtown Phnom Penh. It would be interesting to see the reaction from the audience, many of who, like the young man in the film, probably don't believe the stories of the Khmer Rouge.

A great job by both KID and OSJI.

On a side note: following the film a short Q&A took place. One of the questions, from a young backpacker type, was if it was true that the court had collapsed and had been cancelled. He backed up this with the 'fact' that he had been informed of the cancellation just a few hours ago. Laugher could be heard from the front rows of the audience were many members of the court including Co-Prosecutor Robert Petit, Co-Investigating Judge Marcel Lemode and a few others I didn't recognize, joked that they should go pack their bags.....

More Motoo

Judge Motoo is quickly establishing himself as the most vocal of the ECCC court officials. Here his is again urging haste in finalizing the rules. Of note in this piece is his insistence on no compromise for international standards and his basic agreement with the ECCC's Cambodian spokeswoman over the complexity of combining international law and Cambodian law as the source of the delays.

Judge Moto is not the only one getting press these days however. Apparently both the International Co-Prosecutor and the International Investigating Judge have appeared on the Phnom Penh based CTN television station in the last weeks. Will the Principle Defender dare to appear as well?

Judge says Cambodian genocide tribunal urgent

HAMDEN, Connecticut: The Khmer Rouge genocide trials in Cambodia should start quickly, a judge serving on the tribunal said Wednesday, noting that many defendants, victims and witnesses are old.

"We can't dwell on this for years," Motoo Noguchi, a Japanese prosecutor who will serve as a judge for the tribunal, said at a talk at Quinnipiac University School of Law. "Now it's time to really start cases. We have to identify the disagreements and we have to make our best efforts to solve them and quickly move to the next stage."

A 2003 agreement between Cambodia and the United Nations created the tribunal after years of difficult negotiations seeking justice for crimes committed when the Khmer Rouge held power from 1975-79.

The radical policies of the now-defunct communist group led to the deaths of some 1.7 million people from execution, overwork, disease and malnutrition.

Prosecutors are expected to indict about 10 defendants, including the few surviving top Khmer Rouge leaders.

Organizers of the trials said last month they have been unable to agree on the judicial rules that will govern proceedings, but they still expect to convene the long-awaited tribunal in mid-2007.

The Cambodian and international judicial officials said last month that they had encountered "substantive disagreement" in their goal to adopt 110 draft rules for running the proceedings. The rules cover every phase of the proceedings — preliminary investigations, judicial investigations, the trial and appeals. They also delineate the roles of all parties, including prosecutors, defense attorneys and defendants. The tribunal cannot begin until they are in place.

Human Rights Watch last week accused the Cambodian government of intervening to delay adoption of the rules, a charge the government denied.

Helen Jarvis, a spokeswoman for the tribunal, has said there was no indication of political interference from the government and that the delay was due partly to the complexity of legal issues that Cambodian and foreign judicial officers are grappling with.

Noguchi offered a similar assessment, saying participants were dealing with complex international law as well as language and cultural differences.

Unlike other international tribunals, the Cambodian judges are a majority on the panel and international participants a minority, Noguchi said. Participants not from Cambodia must ensure the tribunal meets international standards, he said.

"We are not allowed to make any serious compromise on that," Noguchi said.

No new date has been set for adopting the rules.

A Million Complaints

The International Co-Prosecutor may have put his foot in it with this interview where his basically invites anyone wishing to lodge a complaint to come out to the ECCC right now. I hope they have the staff in place to handle the probable bus loads of people looking to tell their story and get their moment in the court. It might take 30 years just to hear what each potential witness has to say.....

Friday, December 8, 2006
ECCC Welcomes Victims' Complaints, Risks Deluge

By Erika Kinetz
THE CAMBODIA DAILY

As the long-delayed trial of former Khmer Rouge leaders inches forward, victims of the regime from as far away as France are asking themselves how they might be a party to such belated justice.

The best answer, at the moment may be to go directly to the Extraordinary Chambers in the Courts of Cambodia on the outskirts of Phnom Penh and talk to the prosecutor's office.

"Any victims of a crime can certainly come forward and register a complaint with the office of the co-prosecutors," co-prosecutor Robert Petit said this week. "Unfortunately, at this point, the only way to do that is for people to come here," he said.

Until the rules that govern the participation of victims and witnesses in the tribunal are adopted, Cambodian law applies, Petit said. And under Cambodian law, victims of a crime can complain personally.

If the complaint falls within the jurisdiction of the ECCC—which is empowered to prosecute senior leaders of Democratic Kampuchea and those most responsible for certain crimes committed between 1975 and 1979—the prosecutor may launch an investigation.

So far, Petit said, less than a dozen individuals have filed complaints at the court, a few of which —he declined to say exactly how many—have resulted in investigations. "Theoretically, any person who was a victim of Khmer Rouge crimes during our period has a valid complaint against those most responsible and senior leaders," he said.

This creates an obvious problem of scale. Nearly 2 million people perished during the regime of Democratic Kampuchea, and many more suffered horrendously.

Youk Chhang, director of the Documentation Center of Cambodia, said that at least half of the 4,000 people DC-Cam has interviewed in the last decade wanted to file complaints. In addition, Youk Chhang said he has a 1983 petition against the Khmer Rouge signed by 1.6 million victims, which he plans to file with the court.

About seven years ago, DC-Cam staffers asked several hundred people who signed that petition if they still wanted their complaint considered. Their answer, Youk Chhang said, was a resounding "Yes."

Petit admitted that he was unprepared for the potential deluge. Even a few thousand complaints, he said, would be impossible to respond to, much less investigate.

The office of the co-prosecutors has just three researchers and is in the process of negotiating for assistance with investigations from the Cambodian judicial police, Petit said.

Victims are potential witnesses, and Petit said that help could also come from the recently established witness support office of the ECCC and from a proposed victim's unit.

Harri Moilanen, the ECCC's new support coordinator for witnesses and experts, arrived in Phnom Penh six weeks ago. Moilanen, a Finnish national who spent nine years in the victims and witnesses section of the International Criminal Court in Yugoslavia, wrote in an e-mail that he has been working with two Cambodian colleagues to setup a witness management service, but had not yet had any dealings with victims.

Helen Jarvis, chief of public affairs at the ECCC, declined to name the two Cambodian witness support officers.

"Our policy is that certain people (such as spokespersons and judicial officers) are in the public eye, but that we do not provide personal details of other staff to the media," she wrote in an email,

The two officers were recruited through an open selection process, and all Cambodian staff application files can be reviewed by donors at any time. Jarvis did not respond to repeated requests for the budget of the witness support office.

Petit said that having just three witness support officers was "wholly insufficient."

"The NGO community could have a big impact in organizing people," he added.

Youk Chhang said that DC-Cam could help victims who are interested in filing a complaint with the ECCC.

HRW lets suspicions run wild

Human Rights Watch has thrown out a challenge to the ECCC, along with some pretty serious accusations in an official statement released today. The statement is quite a read, boldly stating that, "Acting on instructions from government officials, Cambodian personnel participating in the meeting delayed adoption of the draft rules," and that "Obstructionist tactics at the meeting on the internal rules were reportedly led by ECCC prosecutor Kong Srim (Kong Srim is actually a Supreme Court Judge and not a prosecutor!), a protege of Deputy Prime Minister Sok An" and even, “The fact that the government is already obstructing the process on ‘technical’ grounds should serve as a wake-up call for donors who have chosen to ignore Cambodian realities.”

What the statement does not have however is much substance. Maybe Mr. Adams has some information or sources which he is not revealing, or maybe he just thinks that his points are so obvious that there is no need to back them up. Either way if HRW hopes to be taken seriously its going to need to come up with more than this. Everyone fears that there could be government influence but it takes more than fears , suspicions and feelings to make a case. Especially one against a court. Stay tuned. We have not heard the last of this.....

Human Rights Watch

Donors Should Recognize How Government Tactics Threaten Entire Process

(New York, December 5, 2006) – The Cambodian government must end its interference in the mixed national and international tribunal set up to prosecute crimes by senior Khmer Rouge leaders and others most responsible for Khmer Rouge crimes, Human Rights Watch said today.

A recent week-long meeting of Cambodian judges and their United Nations-appointed international counterparts failed to agree on internal rules for the tribunal, which is officially known as the Extraordinary Chambers in the Courts of Cambodia (ECCC).

Acting on instructions from government officials, Cambodian personnel participating in the meeting delayed adoption of the draft rules, reversing earlier progress in the drafting process. The result is that the tribunal remains unable to launch investigations or prosecutions in accordance with international standards or even Cambodian law.

“Adopting the internal rules is crucial to ensure that the tribunal adheres to international fair trial standards and an impartial interpretation of Cambodian law,” said Brad Adams, Asia director of Human Rights Watch. “Many of the Khmer Rouge leaders are old and increasingly frail, but until the rules are adopted, prosecutions and trials cannot move forward.. Political interference has brought the whole process to a screeching halt.”

In comments submitted to the tribunal on November 17, Human Rights Watch called for changes to the rules to meet international fair trial standards, specifically that there would be no in absentia trials, that defense counsel would be independent and effective, and that all trials would be public. (See http://www.hrw.org/backgrounder/ij/cambodia1106/.)

Cambodian lawyers and nongovernmental organizations have called for provisions to guarantee meaningful participation and protection of victims and witnesses, outreach to rural Cambodians to inform them about the trials and ensure that they can participate as civil parties, and authorization for victims’ associations and human rights NGOs to act as civil parties without having to register their organizations with the government.

Obstructionist tactics at the meeting on the internal rules were reportedly led by ECCC prosecutor Kong Srim, a protege of Deputy Prime Minister Sok An, who is Prime Minister Hun Sen’s most senior and trusted political lieutenant. As a prosecutor at the Appeals Court, Kong Srim developed a reputation for handling cases in a political manner rather than according to the law and the facts: he prosecuted suspects in absentia, played a key role in the release of Hun Sen’s nephew, Nhim Sophea, against whom there was compelling evidence of murder, and was crucial in engineering the imposition of the deputy prime minister’s candidate, Ky Tech, as president of the Cambodian Bar Association.

As documented in numerous reports by the United Nations, international legal organizations and Cambodian NGOs, the Cambodian judiciary and legal system remain under the tight control of the government. The government has ensured the appointment to the ECCC of Cambodian judges, prosecutors and security personnel who are politically loyal to the prime minister, the deputy prime minister and the national police chief, Hok Lundy. Such political control mechanisms are aimed at preventing judges and prosecutors from acting independently and conducting fair trials free from political interference.

Throughout the negotiations with the United Nations to establish the ECCC, Hun Sen and the Cambodian government engaged in a pattern of delay and obstruction, which was set out in detail by UN Secretary-General Kofi Annan in a report to the UN General Assembly. (See UN document A/57/769, “Report of the Secretary-General on Khmer Rouge trials,” at www.un.org.) The government has long tried to bog down efforts at creating the tribunal and, now, at making it functional, through seemingly endless and often fruitless negotiations, which absorb huge amounts of time, funding and expertise, but result in little or no substantive improvements.

“Government control over the Cambodian judiciary in the Khmer Rouge tribunal has always been a grave concern,” said Adams. “The fact that the government is already obstructing the process on ‘technical’ grounds should serve as a wake-up call for donors who have chosen to ignore Cambodian realities.”

Based on past government practices, Human Rights Watch is concerned that the latest wrangling over the internal rules may be a prelude to public attacks on the tribunal’s international staff, both to drive out particular individuals and to discourage others enough to bring about their resignations.

For the past 15 years, the Cambodian government has consistently attempted to silence, dismiss or undermine UN and other international personnel in Cambodia who operate independently and professionally and are seen as a threat to the government’s continued control of the judicial system. Hun Sen has vituperatively attacked all four UN human rights special representatives to Cambodia and the UN human rights office in Phnom Penh for their consistent and well-documented reports on human rights abuses, including extrajudicial killings and unfair trials, as well as the judiciary’s incompetence, corruption and lack of independence. While international donors have often called for reform of the judiciary as one of the highest priorities for Cambodia, the government has failed to adopt meaningful reforms.

“The government has long feigned accommodation with the UN system and international community in order to maintain its control over the judiciary,” said Adams. “The UN and donors must not allow this to happen this time.”

Human Rights Watch also expressed serious concern about the politically controlled Cambodian Bar Association’s attacks on the proposed ECCC Defense Office and plans for the training of Cambodian lawyers by the International Bar Association. The Cambodian Bar Association threatened legal action against Cambodian lawyers planning to attend a training on international standards by the International Bar Association in Singapore, causing it to cancel the training and to issue a strong statement condemning the move. Last year, when an independent candidate was elected president of the Cambodian Bar Association, the government-backed candidate, Ky Tech, used the politically controlled court system to have the election overturned. Ky Tech subsequently was elected as president, and it was he who ordered Cambodian lawyers not to attend the IBA training.

Though some progress has been made over the past decade, Cambodian courts generally give little respect to the right to an effective defense. The Cambodian government has repeatedly given assurances to the United Nations that arrangements would be made to allow full-fledged participation in defense by foreign lawyers, thereby ensuring that defendants would have counsel of their choosing. But the government is now obstructing this.

“The trials will not be credible unless defendants are provided a credible defense,” said Adams. “Given the well-documented problems with trials in Cambodia, the government and Bar Association should be going out of their way to ensure the reality of fair trials, rather than attacking the defense office.”

Future discussions of the internal rules will show whether it is possible for the ECCC to conduct trials that implement Cambodian and international law in an independent and impartial manner. Human Rights Watch urged both Cambodian and international personnel of the ECCC to pursue the objective of fair trials in accordance with international standards, keeping in mind that it is the Cambodian people who are the intended beneficiaries of this process.

“The international community needs to follow the Cambodian tribunal closely,” said Adams. “We want this tribunal to succeed. But if it becomes clear that the process is hopelessly politicized and obstructed, then the UN should withdraw its support to avoid becoming involved in a substandard trial that would be a disservice to itself and to millions of Cambodians.”

Show Trials

Also in the Phnom Penh Post today is this letter to the editor responding to an interview with the Principal Defender in the last edition of the paper. The view here is that the process is probably doomed to failure because of the agreement- not the individuals involved. He argues that more years should be covered and the scope of possible defendants should be expanded or else it will not be a perfect system. All of this may be true. But is he really advocating going back and renegotiating for another 11 years? Is he saying that unless it is perfect they should not bother?

He then contradicts himself when he correctly points out that many former KR are now in the government and bringing them all up on charges could cause instability- and then suggests the ECCC officials are unaware of this fact. But that is exactly the reason that the courts mandate is so limited both in years covered and the level and numbers expected to be tried.

He is also critical of Mr. Skilbeck's (and many others) view that this court will serve as a model court for future reforms. He says that sudden reform will be impossible- and he is right. But have any of the court officials argued that at the end of the ECCC, the entire Cambodian system will suddenly leap 20 years ahead? If so I have never heard them say it. Reform will take time, and this court will give Cambodia something to shoot for, and some Cambodian judges a little exposure to international standards, but only that.

But he is right at the end of the letter. Better not to hold it at all, then hold something that would be seen as a failure of international standards of justice.

Hard now to avoid a KRT 'show trial'

As Rupert Skilbeck pointed out ("The Principal Defender," Post, November 17, 2006), the Khmer Rouge Trial (KRT) should not be a show trial. Of course, in the pursuit of justice this demand is really important. Unfortunately, it is only applicable to the internal design of the KRT as the result of a political bargaining process over more than ten years.

In setting the framework of the trial, many paladins of the former leaders are excluded from prosecution. Furthermore, the background of some national judges of the ECCC should raise concerns whether fairness isn't threatened through their appointment. Altogether, the fairness of the trial in pursuing justice for the Khmer Rouge's crimes is hampered already by political considerations.

The KRT is very different from its historical model, the Nuremburg trials against leading Nazis and others after the Second World War. At Nuremburg, even a non-member of the NSDAP (Nazi Party) like former German Chancellor Franz von Papen or national banker Hjalmar Schacht had to stand trial. That they were found not guilty was a good argument for the Allies that the trial was not "victors' justice." Unfortunately, figures like them are not present for the KRT, especially for the periods before April 17, 1975 and after January 7, 1979 [excluded from KRT jurisdiction]. And this also avoids examining the involvement of other states in the Khmer Rouge's crimes.

In this context it is hard to understand what Skilbeck means when he argues that if the defendants are not treated fairly "no one can ever be sure what really happened." The exclusion of many years from the trial will even ensure this fact, and for 1975-to-1978 the work of famous scholars like Chandler, Kiernan or Vickery as well as the work of several local NGOs has made it clear already that the defendants are highly politically responsible. If the initiators of the KRT were not sure that the condemnation of the former leaders of the Khmer Rouge is the next logical step it is obvious that there would not be any trial.

The KRT is an indubitable show trial: it should be shown to the Khmer people that justice is possible, and this motivation should not be questioned. But is it really the highest value while there is still the possibility of political violence and instability? It must be remembered that in giving amnesty to the former Khmer Rouge leaders it was possible to end the civil war in 1998 - after nearly 30 years of war, civil war and genocide. This peace must be protected - not only in the view of the directly involved, the Khmers -and even this causes a lack of justice.

Sometimes it seems that issues like this are not present in the perception of the international lawyers and experts. It is in doubt whether they are really sufficiently informed about Khmer culture and history.

Or how can it be explained, for example, that Skilbeck claims that the KRT can improve the legal system of Cambodia? The country's legal system is used as a tool to govern and not to ensure the rule of law or horizontal accountability. This will change only over a very long period and therefore the KRT's impact will be minimal.

And if leading members of the Royal Family should give evidence as witnesses at the trial it could be very difficult in explaining this to the Khmers who still admire King Father Sihanouk, even for the Principal Defender.

If the KRT were to fail it would be better not to conduct it, for in this case it would be a show trial, too, but very different from all the positive expectations.

Markus Karbaum - PhD Candidate, Humboldt University, Berlin

Extraordinarily troubled chambers

That's the title of the latest feature on the court from the Phnom Penh Post. If you have a subscription you can see the whole article here- but here are a few highlights:

...the ECCC's precarious perch between "extraordinary" and "in the courts of Cambodia" has already been destabilized by political interference from the government, observers have told the Post. "It is a clear attempt by Hun Sen to maintain control over what is supposed to be an independent judicial process," said Brad Adams, Asia director of Human Rights Watch (HRW). "Because of its deeply flawed structure and the role of government-controlled judges and prosecutors, [the ECCC] is being deeply politicized even before the first indictment is filed."...

This has been the fear of every critic, but Mr. Adams seems to want to condemn the court before it has even started. A 'clear attempt by Hen Sen to maintain control' is a pretty bold statement to make.

...."This is not an international court, it is a Cambodian court," said Ly Tayseng, secretary-general of the Cambodian Bar Association (CBA). "They cannot create another court which is fully independent from the current court system - it has to be part of the Cambodian system so as not to violate Cambodian sovereignty."....

... "This is an international tribunal based on international law," said Basil Fernando, director of the Asian Foundation for Human Rights. "It is an international court in Cambodian territory. The UN cannot agree to anything less than international standards - by its very nature it cannot."....

Here we have the problem between the Cambodian Bar and the ECCC in a nutshell. The Bar clearly has not read the agreement, or any of the statements from the government. Mr. Fernando has it correct. Why are the international officials here at all if they are not going to ensure international standards?

....ECCC officials are finding the conflicting positions difficult to reconcile, and say there is no example of it occurring in other hybrid courts elsewhere. "I have no precedent to ascertain what to do," said Robert Petit, co-prosecutor. "We have not had problems like this before - even in hybrid courts. This is completely different.".... "[These issues are] not unresolvable," Petit said. "If there is a will there is a way. If we can really delineate the basis for the arguments we can adapt."...

A little disturbing that the ECCC's own officials are not sure how to proceed- but at least they all seem to be putting on a confident front.

Hope is not a plan

Today's Cambodia Daily has a follow up piece from the POV of the former Khmer Rouge. The view from the people they interviewed at least, seems to be that there will be no trial until everyone who could possibly be tried is long dead. This is one in a long line of articles from a new Daily reporter, Erika Kinetz. Rumor has it she used to work for the New York Times and is now the beat reporter for the Trials. The former KR may not believe anything will happen, in the trial but the Daily seems to have become a believer.

Nice 'sound bite' from the spokesman at the end of the piece. We better get used to that kind of statement from everyone at the ECCC during the next months. Lots of hopeful thoughts and very little detail.

KR Affiliates Not Surprised by Tribunal Holdup

Tuesday, November 28, 2006

By Thet Sambath and Erika Kinetz
THE CAMBODIA DAILY

Former Khmer Rouge soldiers and relatives of the regime's leaders said Monday that they were not surprised by the tribunal's failure this weekend to adopt crucial procedural rules, which are necessary for the trials to proceed.

Ven Ra, niece of the late Khmer Rouge military commander Ta Mok, said Saturday's development reinforced her belief that a tribunal would be impossible.

"The court's process is going too slowly," said Ven Ra, also chief of the SRP in Pailin. "It will be delayed until all former Khmer Rouge leaders die naturally," she said.

The rules, which were slated to be approved on Saturday, govern the roles of judges, prosecutors, defense lawyers, victims, suspects and witnesses in the Extraordinary Chambers in the Courts of Cambodia. Their adoption was delayed due largely to a split over how to integrate Cambodian and international law, tribunal officials said. ECCC officials have said they anticipate that first indictments could still be handed down early next year.

Ieng Vuth, deputy governor of Pailin municipality and son of former Khmer Rouge foreign minister Ieng Sary, said the tribunal should not go ahead until both sides are in agreement.

"Let [the two sides] discuss among themselves until they understand each other," recommended Ieng Vuth, whose father has been fingered by some observers as a potential candidate for prosecution. "Untac did not understand the Khmer and forced us [to join the national election in 1993] and then we had a war again."

Lath Nhoung, a former Khmer Rouge soldier, also said he did not believe the trial will ever happen. "The court's process is to show international that they are working to try [the Khmer Rouge leaders], but actually they will delay the process until they all die," he claimed.

ECCC spokesman Peter Foster said both sides of the court are committed to adopting a set of rules that respects Cambodian law and meets international standards. "We would not be here if this was going to be nothing but a 'show trial,'" Foster said. "The expectation of the donors and the mandate of the court is to ensure this process meets international standards of justice from beginning to end," he said.

Secret Plots

Here is the first of what will likely be many accusations that the hand of the government may be involved in the failure of the court to adopt its rules last week. A story entitled Hen Sen's Hand in the Trial Delays? speculates that there may be more to the Cambodian Bar's actions that just a demand for the removal of the ECCC's Defence Support Office, some highlights;

...objections to the IBA's involvement in the Cambodian tribunal has given rise to speculation that Ky Tech's motives may not be his alone, or that of the CBA. After all, the country's justice system is known for its questionable record on upholding human rights, being heavily politicised and even accused of corruption.

‘'The CBA president has become vocal to a degree that it is hard to believe that he is saying these things without political backing,'' Theary Seng, executive director of the Centre for Social Development (CSD), a non-governmental organisation (NGO), said in a telephone interview from Phnom Penh. ‘'It seems to be aimed to either slow the process, or even stall it. This is worrying.''

Cambodian human rights groups are equally alarmed, more so because they are aware of who Ky Tech's political patrons are. ‘'There can be some political influence behind this statement,'' Ny Chakrya, a ranking member of the Cambodian Human Rights and Development Association, a Phnom Penh-based NGO, told IPS. ‘'Some CBA lawyers work closely with the CPP (Cambodian People's Party). Ky Tech is pro-CPP.''

No suprise that the NGOs are sounding the alarm bell, and no question that much of the Cambodian Bar is made up of CPP party members. This is probably one of the main reasons why the formation of an independent Defence office of the ECCC was so important to the UN.

....Such allegations directed at the governing CPP, led by Prime Minister Hun Sen, are not the first pointing to its attempts to scupper a legal process that Cambodian civilians have been yearning for. The increasingly authoritarian Hun Sen has been a serial opponent of the special tribunal ever since the United Nations began talks with the Phnom Penh regime over a decade ago to create the ECCC.

Hun Sen's sensitivity towards the ECCC was on display in May, when he lashed out at human rights groups who called into question Cambodia's choice of judges to sit on a tribunal that stands out -- unlike the ones for Rwanda and former Yugoslavia -- in having a combination of local and international jurists to be part of the entire legal process.

He ‘'likened his critics to perverted sex-crazed animals, among other things,'' the Hong Kong-based Asian Human Rights Commission, a regional rights lobby, said on the occasion. Human rights groups were not happy at the choice of Ney Thol, an army general and president of Cambodia's military court, being among the 17 local jurists for the ECCC. He has a record of denying the right for lawyers of the accused to call their own witnesses and to cross-examine the prosecution's witnesses

This sort of mixes up a few of Hun Sen's quotes- not all of which were even directed at the ECCC. In fact Hen Sen, despite his frequent rants and questionable decisions (banning 3G phones for 10 years to save the morality of the nation?), was one of the ones to ask the UN to come and get involved in this process in the first place. There is even a statement of support from Hun Sen in the opening of the ECCC information booklet. But the PM has certainly kept his distance from the court since it opened.

What is more, a question still hangs in the air over Hun Sen if his name is dragged into the tribunal's proceedings, which formally got underway this year after years of delay. He was a member of the Khmer Rouge till he defected to join forces with the Vietnamese troops that drove out Pol Pot, the leader of that brutal regime, from power in 1979.

Well this certainly is a question to consider. I am not sure if Hen Sen has ever been mentioned as a 'senior leader' or 'most responsible', but he was probably high enough in rank to end up as a witness of some kind. Still if the ECCC is serious about getting '5-10' people prosecuted, it will probably have to stick to cases that do not involve the PM- at least for now. But as the Co-Prosecutors keep saying, they will follow the evidence where ever it takes them....

Bad Judgment

Here it is. The result of tens of thousands of dollars spent and a weeks worth of meetings. A two page statement pledging.... to have more meetings. They point out some of the areas of pretty serious disagreement, but don't bother trying to find any words about areas were they agreed in this statement.

JOINT STATEMENT BY NATIONAL AND INTERNATIONAL JUDICIAL OFFICERS of the ECCC

Phnom Penh, 25 November 2006

We wish to acknowledge above all the importance of these proceedings for the people of Cambodia. We also understand the heavy responsibility we have to do our utmost to move forward with this important work.

As national and international judicial officers we have met in Plenary Session over the past six days. All of us have a strong determination to succeed in our goal of establishing a firm foundation for the court. No one wishes to delay these long-awaited trials.

Nevertheless, we regret to announce that we have been unable to complete our task of adopting Internal Rules for the Extraordinary Chambers in the Courts of Cambodia.

The rules we have been working on are necessary as they will provide the procedural underpinning required for every phase of the proceedings – from preliminary investigation, to judicial investigation, to trial and through appeal. They also delineate the roles of all parties, the co-prosecutors, defence and victims.

The Draft we considered had over 110 rules with hundreds of sub-rules. These draft rules were posted on our website and submissions were invited. We received numerous comments and suggestions from NGOs, legal scholars and other interested observers from across the world.

During this Plenary Session we discussed general matters and had time to focus in detail on about a third of these Draft Rules. We have come to realise that the task we were given to achieve in one week was far too ambitious.

We have also become aware that we have some basic differences. In particular, we have found that we currently have substantive disagreement about several key issues. Amongst these are:

• How to integrate Cambodian law and international standards;
• The role of the Defence Support Unit including the issue of how defence lawyers will be qualified;
• The role of the Co-Prosecutors and its impact on the voting procedure;
• How the Extraordinary court will operate within the Cambodian court structure.

Additionally we have not had an adequate opportunity to address in detail some of the vital issues before the court, in particular the role of victims and civil party rights.

A committee will continue to work between now and the next Plenary Session in an effort to find a path toward resolving the differences.

Although this continues to be a challenging process, all judicial officers are determined to do our best to resolve these issues, if at all possible. We recognise how important our work is in bringing justice to the Cambodian people for crimes committed almost thirty years ago in order to help to continue the process of ensuring social harmony.

The End of the Line

Well the word is out and the press conference planned for Saturday has been cancelled. Apparently a statement of some kind will be issued instead.

That makes it pretty clear that the problem between the international and national judges went far beyond defence issues. For them to cancel a day before the conference, knowing that press may have flown in just for the opportunity to pose questions to the judges, must mean things are pretty desperate.

Tomorrow's statement should be a very interesting read.

More Arguments

This should give everyone a good flavour of the tense atmosphere that must be in the room this week. From the Cambodia Daily;

Bar Threatens Lawyers Over ECCC Training

By Erika Kinetz and Prak Chan Thul
THE CAMBODIA DAILY

The president of the Cambodian Bar Association on Wednesday threatened to take legal action against anyone who participates in a five-day training course on international criminal law that is being offered by the Defense Office of the Extraordinary Chambers in the Courts of Cambodia and the International Bar Association. "We are being violated by the foreign lawyers," Cambodian Bar Association President Ky Tech said in an interview.

He said the legal training violated Cambodian law and he described Cambodian lawyers who have cooperated with foreigners in setting up the training as ''extremists." "We will have measures against lawyers who have conspired to violate the law," Ky Tech warned. His remarks mark an escalation of a growing turf war between the Cambodian Bar Association and the Defense Office of the ECCC.

Tough words- hardly a spirit of cooperation and friendship. And difficult to understand how training courses could be a violation of Cambodian Law. But comments like these make critics of the Court even more confident in their decisions not to back it. This from the US Ambassador;

The virulence of the debate has caught the attention of the US government which has not yet funded the tribunal but may do so. The US Congress has been reluctant to allow funding for the tribunal, on the grounds that it might not measure up to international standards of justice. "We have concerns about the virulence of some of the comments by the Cambodian Bar Association," US Ambassador Joseph Mussomeli said Wednesday. "We know the bar president has connections to the government," Mussomeli said. "It's worrying since he has spoken in such a strident manner. As we work to find ways to fund directly the Khmer Rouge Tribunal, these sort of comments are not helpful.

And this comment from the Public Affairs Officer has "we are in trouble but don't want to talk about it", written all over it;

Peter Foster, public affairs officer at the ECCC, said the exact relationship between the bar and the principle defender's office, including issues relevant to the now controversial training session, were being discussed at the plenary session of the ECCC. The session was convened Monday to ratify the court's internal rules. Those rules govern the roles of judges, prosecutors, defense lawyers, suspects and witnesses appearing in the trials. The bar association, he added, has been invited back to the plenary session today for continued discussion. He declined to comment further on the controversy.

The true measure of the problems will probably be evident by what happens on Saturday. There is a joint press conference planned to announce the final rules. If that is cancelled or changed we will know how bad things really are.

Quite a change from the positive meetings held in July.

Its all good

Some optimistic news from a visiting US university professor. Its good to hear some positive news about the trial, but his assumptions seem a tad too optimistic. The quote from Eng Chhay Eang seems more realistic when he warns that "the trial could be subjected to political influences'. That could certainly be source of the conflict reportedly taking place at the judicial meetings this week.

Illinois Professor Claims Khmer Rouge Trial is Incorruptible

Chun Sakada
VOA Khmer
Washington
21/11/2006

A U.S. university professor expresses confidence in Cambodia's judges, and believed that they will not be swayed by political influence and corruption in the trial of former Khmer Rouge leaders

Speaking to reporters at the U.S. Embassy in Phnom Penh, Dr. Steven D. Roper, associate professor at the Department of Political Science of Eastern Illinois University, says that "no one is going to be able to bribe the Cambodian judges".

Cambodian judges and prosecutors in the Extraordinary Chambers of Cambodia have been criticized for being incompetent and bias towards the ruling party.

Opposition party legislator Eng Chhay Eang agrees that this trial will not become corrupted, but admitted that the trial could be subjected to political influences. "The judges and the prosecutors were [only] selected to be within a political framework", said Eng Chhay.

Cambodia Center for Human Rights' (CCHR) director Kem Sokha says that the trial might be more politically inclined than be unfair, due to corruption.

The Khmer Rouge regime was blamed for the death of an estimated 1.7 million Cambodians between 1975-1979.

The U.S. says that it will not contribute to funding the Khmer Rouge Trial, unless the tribunal meets international standards.

The trial is expected to last 3 years and will likely cost more than $56 millions. The Khmer Rouge tribunal is expected to start in 2007.

Is the Court About to Collapse??

Could be.

According to some well informed sources the Plenary session ended in chaos today when the senior international Judge, S. Cartwright, circulated a letter to all the Cambodian judges on behalf of all the international judges. The letter accused the Cambodians of refusing to respect international standards and of refusing to work with their international colleagues. Worse, the letter threatened to inform the UN that further progress was not possible and that the UN should withdraw its funds and staff from the process. Unknown if this 'letter' is going to be released to the press- but if true, it could signal the total collapse of the court.

What a tragedy for the people of Cambodia. Let's hope they can resolve things before its too late.

All Quiet

No news from the court officials conference, but plenty of rumours flying around.

Word has it that the NGO community was none too happy about the Cambodian Bar Association being included and taking up time in their presentation period on Monday- especially since they were taking opposing positions to the NGOs on defence issues. Word also has it that the mood in the conference from the Cambodian judges is not too welcoming towards the Principle Defender either. With the Bar Association and the Cambodian judges all rumoured to have connections to the ruling CPP, talk is bound to be about the start of long feared political influence being applied.

Barely a mention in the Daily. The South Korean visit, and the rather bazaar request for Cambodia to mediate between North and South Korea, appears to have drawn all the press attention this week.

A picture tells a thousand words

The UNAKRT site seems to have decided to head off any critics of the detention center by posting a photo of it on the site. Take a look here and see if you think its like a 150.00 a night hotel (as was reported in some local press)!

Global Policy Forum

There was a very good article on the court published in LeMonde in October. Global Policy Forum has the English translation now posted on its site, along with quite a few other background articles on the court going back to 2004. Check it out.

BBC News

BBC Online has a nice little piece on this weeks court officials meeting. There was also a radio story on the 1200 news on BBC 1000 in Phnom Penh, though I have not been able to find a link to the audio file just yet.

Officials mull Khmer Rouge trials

Cambodian and international judges are meeting to discuss the rules to be applied during the trials of the former leaders of the Khmer Rouge.

The session, planned to last a week, has been preceded by discussions over the role of foreign lawyers and public participation in the process.

The issue of whether the defendants can get a fair trial has also been debated.

About two million people died during the years that the Khmer Rouge ruled Cambodia in the 1970s under Pol Pot.

Which of the former Khmer Rouge leaders will be prosecuted first may be announced before the end of the year.

The UN-backed trials are due to start in 2007, and could mean that surviving leaders of the brutal Maoist regime - some of whom are still living freely - will be called to the dock.

Defendants vilified

The Khmer Rouge trials process started four months ago, but Cambodian and international legal officials still have to agree on many of the procedures for the trials.

Differences in legal systems have to be addressed - not just between local and international laws, but among the various legal codes used by the international officials.

Already the draft rules have been criticised. Human rights groups have warned that the trials could be swamped by a flood of lawsuits from members of the public.

The Cambodian Bar Association has said it will try to block foreign lawyers from representing defendants.

And the principal defender has raised doubts over whether a fair trial is possible for men who have been vilified publicly for more than two decades.

The international co-prosecutor, Robert Petit, says compromise is the only solution.

"We have to adapt the law to our mandate. We have a three year budget, we have some very specific crimes that are by nature extremely complex and difficult to deal with, and we have to adapt those rules and that law so that we can fulfil that mandate," Mr Petit said.

The Pol Pot regime saw up to two million people executed or starved or overworked to death between 1975 and 1979.

Pol Pot, the founder and leader of the Khmer Rouge, died in a camp along the border with Thailand in 1998.

Other key figures have also died. Ta Mok - the regime's military commander and one of Pol Pot's most ruthless henchmen - died on 21 July 2006.

The BBC's Guy De Launey in Phnom Penh says this week's meeting could go a long way to making sure the Khmer Rouge Trials are meaningful to the survivors.

Story from BBC NEWS:
http://news.bbc.co.uk/go/pr/fr/-/2/hi/asia-pacific/6164262.stm

Opening Day

The ECCC judges have all arrived in town and are staying in the Raffles Hotel. Sounds like a nice way to spend a week but I am sure they will have a very difficult time finalizing the internal rules to have any time to enjoy the hotel- or the city. One newcomer to the group will be Judge Cartwright from New Zealand, who was not present during the original swearing-in ceremony back in July. It will be interesting to see if they decide to give her a public swearing-in ceremony as part of the week's events.

The press have been invited to attend the opening session on Monday and civil society groups have been asked to give their input on the draft internal rules on Monday afternoon. The afternoon session should be the one with the fireworks as among the groups invited to give input is the Cambodian bar.

Don't let me be misunderstood

Another article on the court this time from AFP appears to be a result of the same interview which resulted in the story from the Cambodia Daily which I talked about in the Court Eats its Own post below. AFP seemed to have picked up a different message however, with the complaints from court officials being squarely focused on the lack of funds for outreach, rather than the efforts of the Public Affairs office up to this point.

More interesting are the comments from DC CAM's Youk Chhang who suggests that most people in Cambodia could not really care less about how the court works, all they want to hear about is who is going to be prosecuted and when. That is probably an observation that applies beyond Cambodia as well. Outside of legal researchers and historians, few are going to care much about procedures and rules, no matter how unique or how important they are. Who is going to be prosecuted and when will it happen? Those are the questions that the Court Officials will have to deal with every time they step out of their offices.

KRouge tribunal misunderstood, officials say
By Seth Meixner

PHNOM PENH (AFP) - Debate begins this week on internal rules to shape Cambodia's Khmer Rouge trials, but some fear the tribunal's efforts are being undermined by a misunderstanding of what the court seeks to do.

Foreign judges Monday will begin discussing with their Cambodian counterparts the more than 100 tribunal regulations seeking to find common ground between varied legal codes.

The adoption of this procedural framework, expected at the end of the week, will take the tribunal a significant step forward, officials say. "It's a road map for everybody. Without these rules the court cannot function properly," said tribunal spokesman Reach Sambath.

But the man who will prosecute one of the 20th century's worst genocides said the trial on which Cambodia has pinned so many of its hopes for reconciliation is misunderstood by those it is meant to serve. "We haven't done a good job of telling people there is a mountain of evidence and about the way we get through it," Robert Petit, one of two tribunal co-prosecutors, said in an interview last week. "Obviously there is a need for better information sharing," he said.

He said that not enough money or effort had been spent on outreach programs explaining the complex court procedure to the Cambodian public, putting the tribunal's credibility at risk.

"If the court isn't understood by the general public, it will fail," added co-investigating judge Marcel Lemonde, saying discussions were underway to organise monthly update briefings.

But lessons on dry legal procedure would likely be lost on many Cambodian villagers, who are concerned less about jurisprudence and more that "people are indicted and leaders arrested," said genocide researcher Youk Chhang.

"The public's expectations will be completely different than the court's delivery," Youk Chhang, director of the Documentation Center of Cambodia which has been compiling evidence against regime leaders, told AFP. "The public expects the trial to begin soon. ... They don't care about how you handle a case. They want a final judgement," he added.

As many as 10 former Khmer Rouge leaders are expected to be called to the dock over the apocalypse that engulfed Cambodia in the late 1970s.

The communist regime turned the already war-battered country into a vast collective farm between 1975 and 1979 in its drive for an agrarian utopia, forcing millions into the countryside. Up to two million people died of starvation, overwork and from executions during the four-year rule of the Khmer Rouge, which abolished religion, property rights, currency and schools.

Prosecutors in the three-year, joint UN-Cambodian tribunal are expected to hand up the names of potential defendants to an investigating judge by the end of the year.

Trials are expected to start in mid-2007, but Youk Chhang said there is a growing feeling among Cambodians that the tribunal is being done less for their benefit and more to raise the profile of its international backers.

"It is important right now that this process is accepted by the victims -- that they feel ownership," he said. "If (tribunal staff) do their job and concentrate, meet their deadlines, it should be okay," he said.

Lost Republic

Details are Sketchy has a nice find from the New Republic which I have reposted below. The author of the New Republic blog is actually the Editor-in-Chief of the publication which makes his comments even more inexcusable. Basic research does not seem to worry Mr. Peretz. Not surprisingly, there is no way to contact him directly and point out the errors in his blog, but you can contact the assistant editor Mr. Parker at: (rparker@tnr.com) and let him know the correct spelling of Khmer....

Clueless in Washington

November 18th, 2006

Martin Peretz of The New Republic has this to say about the Khmer Rouge Tribunals.

Cambodia is finally trying some Khymer Rouge officials in a combination of a court and truth and reconciliation process. My guess is that many, if not most of the Khymer are dead. And, as for their Cambodian victims, aside from the rough million or more they actually murdered, large numbers of them will also have died.

In addition to the completely asinine spelling of “Khmer,” Peretz is wrong on just about every account. So wrong, in fact, that it quickly becomes obvious that he has no idea what he is talking about.

There is no truth and reconciliation process. The cynical would argue that, at least at this point, there is not even an agreed set of rules for the court to work by. And while Peretz may be right when he says that some Khmer Rouge leaders are now dead, it’s also correct to say that many are not. Much the same can be said for the KR’s victims — while many have died, there are literally millions still living — as anyone who possesses even the most superficial understanding of the country could point out.

The principal defender

This is a long interview published in the Phnom Penh Post. The Principle Defender seems to be dominating the news these days. It is very long so I will only post a few highlights- but you can read the whole thing on KI media here:

The principal defender

Phnom Penh Post, Issue 15 / 23, November 17 - 30, 2006

....Rhetorically speaking, could a judge who was a victim of the Khmer Rouge be impartial or would this constitute a conflict of interest?

International law states that for justice to be done, justice must be seen to be done. Judges must be both impartial and independent. Independence means that they must be absolutely free from political influence, both in the way that they are appointed and also in the way that they are removed. For a judge to be impartial, international law states that the appearance of impartiality is important. Judges have been removed before for writing books about defendants where they suggest that they are guilty, for being on the committee of an NGO that was involved in the case and for having a close friendship with the prosecutor. It is likely that the question of whether a judge who was a victim of the Khmer Rouge can be impartial is going to be a significant legal question that will be raised by the defense before the ECCC.
....

Is it possible for war crimes tribunals such as the ECCC to provide fair trials for defendants?

It is important to remember that any defendant is presumed innocent until and unless the prosecution can prove beyond a reasonable doubt that they are guilty. There have been acquittals at all previous war crimes tribunals, and there is no reason to think that that will not occur in the ECCC. If defendants are not tried in an overtly fair way, then no one can ever be sure what really happened, and the whole purpose of the court is wasted. Alternatively, we can have show trials.
....

How important are witness protection schemes for the integrity of the ECCC?

It is absolutely fundamental that there must be a full witness protection program for prosecution and defense witnesses. This needs expertise, training, financial and political support. Without this, trials cannot be fair.

What do you think the nature of the ECCC trials will be?

If the prosecutors restrict themselves to bringing cases against only the senior leaders of the Khmer Rouge, then the process before the ECCC is going to be much more like a truth commission than the adversarial trials of other war crimes tribunals.

Where the defendants are all elderly, any potential sentences will be life sentences, no matter what offences they may be convicted of.

Under the investigative system of justice, there is much more of a concept of a "search for the truth" than in the adversarial system, which is more concerned with "Can they prove it?" For many, the prime objective of the ECCC, for witnesses and defendants alike, is to be able to explain in public what happened to Cambodia. This also means that the ECCC is likely to ask the question "Why did it happen?" which is not normally something that concerns an adversarial trial.

The Lawyers are suing

Well that didn't take long.

The Cambodian Bar is apparently not happy at all with the Draft Internal Rules of the court or with the Principle Defender Rupert Skilbeck. In fact, they have released their comments on the draft rules which really amount to a flat out threat to sue Mr. Skilbeck and the ECCC unless they get their way.

Make no mistake, if the Cambodian Bar carries through with this threat it could make things very difficult indeed for the court to make any further progress. The court is holding an meeting at the Cambodian Japanese Friendship Center (?) all next week to finilize the rules of the court, the Bar Association along with everyone else will be anxiously waiting to see what they come up with.

No pressure guys..... no pressure at all.....

Cambodia's Bar Association threatens to derail Khmer Rouge tribunal

PHNOM PENH (AFP) - Cambodia's Bar Association has demanded greater control over the legal defence of former Khmer Rouge leaders and has threatened to block foreign attorneys from participating in a tribunal to try top regime cadre.

In a scathing statement sent to tribunal staff obtained Friday by AFP, the association said draft internal regulations that would determine how the tribunal operates violate Cambodian law.

At the core of the Bar's complaints is the provision giving foreign lawyers the right to defend Cambodian clients.

Under the current proposed regulations, "lawyers admitted to practice outside of Cambodia shall work in conjunction with a lawyer admitted in Cambodia, as co-lawyers, with equal rights of audience".

Association president Ky Tech said that only the Bar can approve the list of defence attorneys for former Khmer Rouge suspects, oversee their training and mete out discipline.

The Bar has also said it would not approve any foreign lawyers whose home countries did not give Cambodian attorneys reciprocal rights to practice law.

Ky Tech said he would sue the tribunal -- known as the Extraordinary Chambers in the Courts of Cambodia -- as well as the government and foreign bar associations if his organisation's demands were not met.

"Foreigners cannot represent clients. They can only accompany Cambodian lawyers," Ky Tech said in the Bar's statement.

"Foreign lawyers must be accepted beforehand by the Bar Association ... these regulations do not abide by Cambodian law," he added.

The Bar also objects to the Defence Office, established to protect the rights of the accused, and said it should be headed by a Cambodian rather than a foreigner.

British lawyer Rupert Skilbeck is currently the principal defender in the office.

A three-year, joint UN-Cambodian tribunal to prosecute crimes committed during the 1975-79 Khmer Rouge regime got underway in July, with co-prosecutors expected to hand up the names of potential defendants to an investigating judge by the end of the year.

Trials are expected to start in mid-2007, and as many as 10 former leaders could be called to the court over the deaths of up to two million people during the Khmer Rouge's four-year rule.

So far no foreign lawyers have applied to act as defence counsel. Only Jacques Verges, the radical French lawyer who defended Nazi Klaus Barbie and the terrorist Carlos the Jackal, has expressed interest in participating.

Verges reportedly met with Khieu Samphan, the head of state during the Khmer Rouge regime, earlier this year to discuss possibly defending the former cadre if he is indicted.

The two had first met in Paris as students during the 1950s.

Debate has raged over how to include Cambodian lawyers, who have a reputation as being notoriously inept and corrupt, in the tribunal.

Few, if any, have international trial experience and are unlikely to be able to match foreign attorneys in skill, critics argue.