The Phnom Penh Post

Journalists and lawyers, court officials and members of the public, crammed into the ECCC courtroom Monday, eager to witness the start of the Khmer Rouge tribunal's first substantive hearing. Although the trial of "Comrade Duch" officially opened with a Feb. 17 Initial Hearing, that event was largely procedural.

Monday marked the beginning of what many see as the "real" trial -- during which witnesses for the defense and prosecution will testify, and Duch himself is widely expected to make a public confession.

Unfortunately, this seminal day was somewhat underwhelming. And brief.

A recently-posted schedule for the trial of "Comrade Duch" gives a sense of the issues that will be covered throughout the initial few weeks of proceedings. During the first three days of substantive hearings, March 30 to April 1, the Trial Chamber anticipates that Duch will be informed of the charges against him, Co-Prosecutors will make opening statements and the defense will have the opportunity to respond. Duch will also have a chance to comment on the charges against him.

The following week, April 6 to 9, the Trial Chamber will first question Duch, and then witnesses, about M-13, Duch's first prison.

After a week-long break for Khmer New Year, court will reconvene April 20. The Trial Chamber will subsequently address issues relating to the establishment of S-21 and CPK policy.

Japan has announced that it will donate $200,000 to the court's Cambodian side, which has been unsure how it will pay tribunal staffers' March salaries. Most donors have frozen funds to the Cambodian side pending the resolution of corruption allegations at the court.

The funding shortfall's timing was particularly inconvenient, as the substantive portion of Comrade Duch's trial is scheduled to start March 30.

"Japan strongly hopes that these trials, which will render justice to the serious crimes perpetrated under the former Khmer Rouge regime, will be carried out properly and promptly without delay, as all the detained leaders of the former regime are aged persons," according to a statement from the Embassy of Japan.

After being forced to remove documents from their self-published website, lawyers for Ieng Sary lodged an appeal last week against a recent "Confidentiality Order" from the Co-Investigating Judges.

The Co-Investigating Judges claimed the lawyers were posting documents that, if made public, would compromise the quality of judicial investigations at the tribunal. Lawyers temporarily removed several documents, but said they would fight back. In their appeal, filed March 10, they had tough words for the court. I've posted some of the highlights below:

* "Only by vacating the Confidentiality Order and permitting the Defence to maintain a website throughout the entirety of the ECCC proceedings which posts the Defence team's public filings before the ECCC, will the Pre-Trial Chamber be able to ensure that there is no chilling effect on the right of each party to the proceedings to advocate its interests freely, openly and transparently," co-lawyers for Ieng Sary Michael Karnavas and Ang Udom wrote.

As the court's Cambodian side nears bankruptcy -- and funding to pay its staffers' March salaries remains uncertain -- the need to address corruption at the tribunal becomes increasingly urgent. Numerous donors have said they will not pledge money to the court's Cambodian side until this issue is satisfactorily resolved.

The Defense Support Section issued the following statement about corruption allegations at the court at the close of this month's plenary session:

"The DSS welcomes the statement by the international judges affirming their concern about unresolved allegations of corruption within the ECCC. This reinforces their position at the last Plenary that kick-back allegations must be dealt with 'fully and fairly [...] and in a transparent manner' and will be a comfort to all those who fear that the administration of justice within the ECCC may fall prey to political compromise."

A recent survey by the Documentation Center of Cambodia shows that a slight majority of Cambodians polled -- 56.8 percent -- think the tribunal should pursue additional suspects beyond the five defendants already in custody. DC-Cam interviewed a little over 1,000 Cambodians, including former "New People" (pre-Khmer Rouge city dwellers), "Base People" (many of those formerly involved with the Khmer Rouge) and those who are too young to remember the 1975-1979 period.

Of the younger people surveyed, 67.5 percent supported additional prosecutions, "perhaps indicating that the young generation has a different view of justice than their parents, the direct victims," according to the DC-Cam report.

The complete survey report is available here.

The tribunal's fifth plenary wrapped up Friday, with participants issuing a statement about changes they had made to the court's Internal Rules. Among the amendments was a decision to bar civil parties from making their own legal submissions:

"Specifying that where Civil Parties are represented by a lawyer, it is the lawyer and not the Civil Parties themselves who must make legal submissions before the court," according to the statement. "The amendments do not limit the rights of Civil Parties but instead, modify the manner in which these rights are to be exercised, due to the extremely large number of Civil Parties before the ECCC proceedings, and the impracticability of concluding trials expeditiously if all Civil Parties were allowed to intervene on any matter at any stage of proceedings. These amendments do not apply where a Civil Party is being interviewed, and do not prevent a Civil Party from answering questions put to him or her by the Chamber."

This issue came to the fore in June when Theary Seng, a civil party and the Executive Director of the Center for Social Development, attempted to address the court during a pre-trial hearing for Ieng Sary. Judges ultimately denied her request, but Judge Rowan Downing issued a dissenting opinion.

Defense lawyers at the ECCC and court monitors fired back at the tribunal yesterday, charging the court with a lack of transparency. On Tuesday, Co-Investigating Judges had ordered Ieng Sary's defense lawyers to remove allegedly confidential documents from their website.

"Despite the confidentiality of the investigation, the ECCC is a public institution. The OCIJ is clearly failing in its role to keep the public informed about developments in the investigation," Andrew Ianuzzi, legal advisor to Nuon Chea's defense team, told the Post.

In a statement posted to the controversial website, Ieng Sary's lawyers wrote they had temporarily removed several documents pending a more complete legal response.

Ieng Sary's defense team received a warning from Co-Investigating Judges Tuesday: Remove all sensitive documents from their independent website, or "face sanctions." The lawyers have 48 hours to take down "any documents relating to the judicial investigation, other than those already published on the ECCC website," according to a statement from the court.

The Co-Investigating Judges claim the defense team published confidential documents on the site. It does not specify what those were.

I do know that, since it was established by the defense team, the site has been an excellent source for material not published on the ECCC site. The rationale for its creation is explained on the homepage:

The ECCC's fifth plenary session opened Monday, with Judge Silvia Cartwright declaring that international judges "will not allow corruption to interfere with the tribunal's delivery of justice for the people of Cambodia."

Current funding shortfalls on the court's Cambodian side will be resolved once international donors are convinced the tribunal is "a corruption-free environment," she continued.

Before Cartwright made her opening remarks, Kong Srim, president of the supreme court chamber, told those gathered that the court did not have enough money to pay Cambodian staffers' salaries for March. Funding to the court's Cambodian side has stalled amid allegations of kickbacks at the tribunal.