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Extraordinarily troubled chambers

L ook closely at the very name the Extraordinary Chambers in the Courts of Cambodia (ECCC) - and the source of Khmer Rouge Trial (KRT) troubles is revealed.

Both "extraordinary" - meaning outside the mainstream judicial system - and "in the courts of Cambodia," the ECCC has the daunting task of introducing international standards of justice into the Cambodian court system, which is routinely described as corrupt.

Case in point: on November 25, the ECCC announced the failure of the plenary session to approve the court's draft internal rules, citing disagreements on four key operating procedures necessary to run the hybrid court. People close to the negotiations said the Cambodian members tended to be on one side and the international members the other.

That this crucial step has stalled suggests the ECCC's precarious perch between "extraordinary" and "in the courts of Cambodia" has already been destabilized by political interference from the government, observers have told the Post.

"It is a clear attempt by Hun Sen to maintain control over what is supposed to be an independent judicial process," said Brad Adams, Asia director of Human Rights Watch (HRW). "Because of its deeply flawed structure and the role of government-controlled judges and prosecutors, [the ECCC] is being deeply politicized even before the first indictment is filed."

Civil society leaders have long maintained that the "extraordinary" element of the ECCC should be emphasized as a means of insulating the court from the problems - such as political interference - that currently plague the Cambodian judicial system.

"Civil society wants the ECCC to be self-contained," said attorney Theary Seng, executive director of the Center for Social Development (CSD). "We don't want anything to be referred out to national organs and institutions, the Constitutional Council, the Cambodian Bar Association, or the national courts after the final decision of the ECCC's Supreme Chambers."

But some of these national institutions insist that the ECCC is by definition "in the courts of Cambodia" and must be treated accordingly.

"This is not an international court, it is a Cambodian court," said Ly Tayseng, secretary-general of the Cambodian Bar Association (CBA). "They cannot create another court which is fully independent from the current court system - it has to be part of the Cambodian system so as not to violate Cambodian sovereignty."

ECCC officials are finding the conflicting positions difficult to reconcile, and say there is no example of it occurring in other hybrid courts elsewhere.

"I have no precedent to ascertain what to do," said Robert Petit, co-prosecutor. "We have not had problems like this before - even in hybrid courts. This is completely different."

But for international observers the divide is not an issue.

"This is an international tribunal based on international law," said Basil Fernando, director of the Asian Foundation for Human Rights. "It is an international court in Cambodian territory. The UN cannot agree to anything less than international standards - by its very nature it cannot."

The idea of a court such as the ECCC being conducted solely in accordance with local law - as the CBA seems to be demanding - is obsolete, Fernando said.

"No country can talk about pure local law," he said. "[International] treaty law is a part of the law in all aspects. Even if the ECCC were held elsewhere, even in a country where there is a much more developed legal system, to claim that it is within local law would not be acceptable."

Cambodia's years of civil strife decimated its legal and judicial systems, compounding the need for international assistance in bringing those "most responsible" for the crimes of the Khmer Rouge era to justice, Fernando said.

"What we are dealing with in Cambodia is an absence of a legal system for a long time and the inability of the [current] system to mete out justice even in normal situations," he said. "To claim that there will be justice within such a framework is to not understand what is meant by objective international justice."

The CBA was made a full member of the International Bar Association (IBA) in 2004. The stance it is now taking - that the ECCC is absolutely "in the courts of Cambodia" - is understandable, said Fernando, but there is no place for such "legal nationalism" in the quest for justice.

"It is part of the understandable pride of any country to claim that they are able to do it themselves," he said. "But the CBA does not have to be ashamed to admit its tradition is only two years old and that they have a lot to learn."

But civil society leaders maintain that the CBA's current stance of "legal nationalism" is underpinned by more than just pride.

"The Cambodian Bar Association would not be this persistent and vocal - pronouncing policy statements on issues that are arguable and rooted on unsteady legal basis, risking membership with the International Bar Association, drawing negative press not only nationally but internationally - if there was no backing from higher up," said the CSD's Seng. "This type of audacity rarely occurs here without a reliance on political support from the powers that be."

CBA has not been threatened with expulsion from the IBA as a result of its current stance, Romana St Matthew-Daniel of the IBA said via email.

"I can categorically state that this is not the case," she wrote. "However, the issue of expulsion had arisen in the past related to the completely separate issue of the internal wrangling for the position of president of the CBA."

But HRW's Adams rejected the IBA's assertion that the internal wrangling for the position of CBA president is "completely separate" from the current stance of the organization.

"The CBA's elections were manipulated so that the president would be under the control of Hun Sen," he said. "He is now doing the government's bidding."

The CBA's Tayseng flatly denies all charges of political interference and says civil society members are fabricating such charges in an attempt to discredit the organization.

"[Civil society] should not use allegations of political influence to damage the reputation of the CBA," he said. "So far, we have never received any instructions from the government. We are fully independent and I assure you we would never compromise our independence as we are professional [and] we work according to the law."

Moreover, Tayseng said the IBA is failing to cooperate with the CBA, and cited an IBA training course - cancelled after CBA opposition - as an example of IBA sidelining of the CBA.

"That particular training was arranged without our cooperation," he said. "They did not contact us until they sent out invitations. They arranged it themselves, and then we reacted."

The reaction of the CBA - which Tayseng maintains stopped short of banning members from attending as the IBA claimed - caused the IBA to cancel the proposed training session and issue a statement condemning the CBA's behavior.

"[CBA] 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," said Mark Ellis, executive director of the IBA.

"The IBA's program 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."

CSD's Seng said the CBA's current stance is rooted in a desire for control.

"The issue comes down to control," she said. "The actions of the CBA indicate that it wants control and does not want the ECCC to be self-contained."

Fernando said this desire for control is itself rooted in the manner in which recent history has led Cambodia to conceive of justice.

"The very nature of justice is that it can't be controlled," he said. "This is something Cambodia doesn't understand as their recent history has been so controlled."

Fernando, who was a senior adviser with the human rights component of UNTAC from 1992 to 1993, expressed his concern at that time regarding the lack of judicial independence within Cambodia, but was, he claims, told by the then Minister of Justice "Don't worry, I will make them independent."

"That is the psychology," Fernando said. "[Cambodia is currently] incapable of understanding that justice is something you can't control."

The concern by the CBA that every element of the ECCC be conducted in accordance with Cambodian law is a reflection of this broader misunderstanding of the nature of justice. But in order to maximize the benefit of the ECCC to Cambodia's legal system it is imperative that the CBA not be excluded from meaningful participation, Fernando said.

"Any attempt to sideline them or dismiss them is very foolish," he said. "It is their future that is being decided, their system we are trying to improve. They should be able to play a role alongside others as it would be huge learning experience for them."

This call for cooperation echoes those of the CBA's Tayseng and the ECCC's Petit, both of whom expressed optimism that the current wrangling could be overcome that the trial might go on.

"[These issues are] not unresolvable," Petit said. "If there is a will there is a way. If we can really delineate the basis for the arguments we can adapt."

Fernando said that ultimately, the ECCC can be neither completely "extraordinary" nor totally "in the courts of Cambodia". Both its complexity and the primary benefits it will bring come from its ability to balance the two.

"Cambodia's historical legacy means people don't understand the importance of judicial independence, but this is why [the ECCC] will be useful to Cambodia - it will allow people to see what an independent court is," Fernando said. "Justice doesn't have national perimeters, it is in a sense international norms and standards - so there cannot be one way of judging guilt or innocence for Cambodians, another way for East Timorese, another for Yugoslavs - [to do so would] undermine the foundation of justice [and mean] it would be better not to have [the ECCC] at all."

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