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.