Problems at the Cambodian Tribunal

by Kevin Jon Heller

It’s been a difficult week for the new Extraordinary Chambers in the Courts of Cambodia (ECCC), which is supposed to begin work in early 2007. First, an important meeting of the ECCC’s Cambodian and international judges failed to reach agreement on the Tribunal’s rules, which govern every aspect of its administration, including investigation procedures, trial motions, and appeals. According to reports, disagreement centers on how to integrate international standards into domestic Cambodian criminal law — no small task, as the Iraqi High Tribunal demonstrates.

Second, and more ominously, the International Bar Association — an exceptional NGO that provides training in international criminal law to legal professionals around the world — canceled a training program for defense attorneys preparing for ECCC trials. The IBA released the following statement:

The Cambodian Bar has issued instructions forbidding lawyers from attending a training programme planned by the International Bar Association (IBA) and the Defence Office of the Extraordinary Chambers in the Courts of Cambodia (ECCC). The Bar’s president, Ky Tech, has publicly threatened that ‘measures’ will be taken against any attendee, and against the IBA’s international participants. The IBA has also refused to accept the Bar’s demands for control of selection of participants and speakers. The prohibition by the Cambodian Bar is part of a wider scheme of opposition designed to obstruct the operation of the Tribunal. In consequence, the IBA has cancelled the programme.

The training programme was to benefit lawyers seeking to take part in the trials of former Khmer Rouge leaders. The training was designed to ensure that Cambodian lawyers were familiarised with international criminal law and international fair trial standards. Leading international jurists directly involved with international criminal trials were to bring their experience and insights to the programme, due to be held in Phnom Penh from 27 November.

Mark Ellis, Executive Director of the IBA, commented: “The Bar’s actions represent a disturbing development in the functioning of international justice, placing obstacles in the path of bringing those accused of international crimes to trial. The IBA’s programme was intended to improve the quality of legal services and the administration of justice in Cambodia, and help educate and inform the Cambodian public about international justice. It is unacceptable that the Cambodian Bar, which should share these objectives, is seeking to frustrate them in this way.”

For its part, the Cambodian Bar Association insists that it is simply protecting its right to regulate Cambodian lawyers:

The plan had angered the Cambodian Bar Association, which accused the international group of encroaching on its sovereignty, saying that under Cambodia law the local bar was the only body mandated to regulate legal professionals in the country.

Ky Tech dismissed the accusation that his group was standing in the way of justice.

“We are happy to see Cambodian lawyers learn from experienced foreign lawyers,” he said. “But we are also unhappy with any acts encroaching on our rights.”

He said the IBA’s decision to cancel its training was “appropriate.”

I’m not sure how the IBA’s training program infringes upon the CBA’s “sovereignty.” The IBA is not trying to regulate Cambodian attorneys; it simply wants to train them in international criminal law, a subject with which few Cambodian attorneys have any experience. The CBA’s real target seems to be the ECCC’s draft rules, which permit foreign attorneys to represent a defendant in conjunction with Cambodian attorneys:

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.

Although these concerns are perhaps understandable, there is no practical alternative to significant non-Cambodian involvement in the ECCC — which, after all, is a mixed domestic/international Tribunal. The fact that few Cambodian attorneys have experience in international criminal law is only part of the problem; more importantly, the Cambodian judicial system is notoriously corrupt and inefficient. Here is a snippet from the State Department’s 2005 report on human rights in Cambodia:

The constitution provides for an independent judiciary, but the government did not respect this provision. The courts were subject to influence and interference by the executive branch, and there was widespread corruption among judges, prosecutors, and court officials.

[snip]

A lack of resources, low salaries, and poor training contributed to a high level of corruption and inefficiency in the judicial branch, and the government did not ensure due process.

[snip]

Judges and prosecutors often had little legal training. In 2003 the Royal School for Judges and Prosecutors reopened and accepted its first class of students since the 1960s. Following their legal internships in late 2004, the 55 graduates were appointed as judges and prosecutors to courts throughout the country. The introduction of newly trained lawyers also resulted in significant improvements for defendants provided with counsel, including a reduced pretrial detention period and improved access to bail; however, there remained a critical shortage of trained lawyers, particularly outside Phnom Penh. Persons without means to secure counsel often were effectively denied the right to a fair trial.

Sworn written statements from witnesses and the accused usually constituted the only evidence presented at trials. The accused person’s statements sometimes were coerced through beatings or threats, and illiterate defendants often were not informed of the content of written confessions that they were forced to sign. In cases involving military personnel, military officers often exerted pressure on judges of civilian courts to have the defendants released without trial.

Court delays or corrupt practices often allowed accused persons to escape prosecution. Government officials or members of their families who committed crimes sometimes appeared to enjoy impunity…

The Judicial Reform Council made no significant progress in fulfilling its mandate to develop and implement reform measures.

It’s safe to say that the legal profession in Cambodia’s support for the ECCC is equivocal, at best. Whether that lack of support will prevent the ECCC from fulfilling its critical mission remains to be seen.

http://opiniojuris.org/2006/11/27/problems-at-the-cambodian-tribunal/

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