Tuesday, December 19, 2006

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

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)

No comments: