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Logo of Phnom Penh Post newspaper Phnom Penh Post - Debate forgets defense

Debate forgets defense

While the discussions continue about foreign judges and prosecutors in a forthcoming

Khmer Rouge tribunal, lawyers and human rights workers point out that one essential

element has been left almost completely out of the debate: The provisions of the

defense.

In order to achieve a fair trial process, they say, the prosecution and the defense

must be equally qualified and equipped. So with international legal expertise on

the prosecution side, it is vital for the same resources to be provided to the defense.

But whereas the current tribunal draft law specifically establishes the participation

of a foreign prosecutor and investigating judge, there is no mention of foreign defense

counsel. Without that, foreign legal experts cannot partake in the KR trial, as Cambodian

law states that only Cambodian lawyers are allowed to conduct cases in a Cambodian

court.

"If we want a real trial with any pretense of meeting international standards

of justice, outside defense counsel will have to be brought in, too. This is essential

if we are to have a robust adversarial process," insists genocide researcher

Craig Etcheson.

He is backed up by Human Rights Watch:

"The draft law should be amended to make clear provision for the involvement

of foreign defense counsel and to ensure that the tribunal's practices and procedures

accord fully with relevant international norms governing the right of all individuals

to fair trial," the human rights organization wrote in a recent comment on the

tribunal law.

Human Rights Watch also refers to the rights of the defendants in areas such as access

to evidence and court files and cross examination of witnesses. According to the

organization these rights are not sufficiently protected in the current draft law,

but must be included.

"These trials are very complex. The legal issues involved require a depth of

knowledge that is not available to the average lawyer - anywhere - but particularly

in Cambodia. While Cambodia has some good advocates, none are capable of trying a

genocide [case] without international expert help," claims Western attorney

Michael Karnavas.

Another Western defense lawyer with long-time knowledge of Cambodia puts the equation

this way:

"How can you call a trial fair, if you have a solitary Cambodian lawyer poised

against the resources of the entire international community?"

Director of the Cambodian Defenders Project, Sok Sam Oeun, agrees that there should

be provisions in the tribunal law that allow for foreign defense counsel.

"It's up to the defendant to choose his legal counsel. But at least it should

be made clear to him, that he has the right to foreign assistance.

However this raises the issue of costs. The Khmer Rouge may have made substantial

amounts of money from logging and gem trading at one time but most of it has been

spent on weapons and munitions for their war against the Government. How much remains

and who has access to it is questionable.

Karnavas points out that at the international war crime trials in Rwanda, the tribunal

paid defense attorneys $100 per pretrial day and $70-90 per hour during the trial.

One diplomat, who acknowledges that the tribunal law needs to be amended to specifically

allow for foreign defense counsel, rejects the idea that the UN should be responsible

for paying the defense:

"I find it hard to believe that any of these KR guys are poor. Besides, I'm

sure that a lot of defense lawyers will come crawling out of the woodwork and volunteer

their services, just to be able to say that they participated in the KR tribunal,"

the diplomat says.

All, however, agree that it may not be easy or even possible to convict all former

KR leaders on all counts - be it genocide, war crimes or crimes against humanity.

At least not if the defendant is provided the qualified legal counsel that is part

of any due process.

"So why has the question of defense not been thoroughly debated before? Maybe

because everybody thinks that they're guilty," says Etcheson.

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