Recent events, as well as problems involving logistics, language difficulties and
unresolved legal restrictions, are proving potential obstacles for the fledgling
Khmer Rouge Trials (KRT), legal experts and KRT officials have told the Post.
Battered by the July 20 death of potential key Khmer Rouge defendant Ta Mok, and
subsequent calls for an accelerated judicial process, officials of the Extraordinary
Chambers of the Courts of Cambodia (ECCC) are now balancing the weight of expectations
with an impending sense of urgency and outcome.
"We are racing against time," said Michelle Lee, deputy director of the
ECCC. "And we cannot sacrifice justice."
With the $56.3 million budget securing only a three-year window of operations -including
time to sift through 30 years of research documents and an adequate appeal process
- legal analysts are concerned that the scope of the prosecution may not even reach
the unofficial recommendation that five to 10 senior leaders of the former Democratic
Kampuchea and those "most responsible for committing serious crimes" be
tried by the ECCC.
"Talk of delay is rampant," said Helen Jarvis, chief of public affairs
for the ECCC. "We are painfully aware of it this week. Time is running out.
I'm thinking of the mortality of human beings - not just potential defendants but
also potential witnesses and those Cambodians still waiting to see justice achieved."
One senior legal expert with ties to the ECCC told the Post on condition of anonymity
that in three years "two to three cases are a realistic figure" and "it
would be a great challenge to try more than three or four."
The expert said two factors would affect this assessment - the quality of defense
counsel and its determination to forestall court procedures and, conversely, the
possibility of trying more than one defendant at a time.
"We're not thinking about the quantity of the trials, we're thinking about the
quality," said Reach Sambath, ECCC spokesman. "The trials will prosecute
the highest leadership and those most responsible. So far, there is no identification
of the KR leaders who will face trial. It is approximated that we will try five to
ten people. We need quick justice, but we cannot be reckless."
But co-prosecutor Robert Petit, who has extensive experience in international criminal
law, said that a limited timeframe is to be expected for a judicial process such
as the ECCC and that extension of the budget is possible.
"A three-year mandate is nothing new; all these trials have a shelf life,"
Petit said on July 27. "There's a target date and you have to be conscious of
time limits, but hopefully we'll be allowed to deliver the measure of justice we're
here to do."
Further complicating the progress of the ECCC is the Law on the Bar, adopted by the
National Assembly in 1995. The law, designed to regulate the legal profession in
Cambodia, states in its Article 4 that "Apart from those lawyers who are members
of the Bar Association, no one may perform this profession." Article 5 of the
same charter simply states "Foreign lawyers may not represent clients."
"The prohibition of the Law on the Bar would influence significantly the ability
of the ECCC to meet international fair trial standards in two distinct ways,"
said Theary Seng, executive director of the Center for Social Development by e-mail.
"First, a fair trial, in part, requires the defense and the prosecution to have
'equality of arms.' Failure to allow full participation by international defense
counsel will put this fair trial element at risk. Second, a fair trial is marked
by the ability of the accused individual to choose his or her own counsel."
According to Seng, the current structure of the ECCC now has both domestic and international
prosecutors, but only private Cambodian defense counsels. British barrister Rupert
Skilbeck, the principle defender for the ECCC, is responsible for ensuring proper
"I met with Rupert Skilbeck about four weeks ago; he is concerned about the
role of foreign lawyers in the Khmer Rouge Trials," said Cambodian Bar Association
President Suon Visal. "CBA law states that foreign lawyers cannot practice law
in Cambodia. They may only assist Cambodian lawyers. The Khmer Rouge Trials are very
important and must be done to international standards. They have foreign judges and
prosecutors so without foreign lawyers it would be an injustice to the suspects."
Without providing details, both Visol and the ECCC's Jarvis expressed confidence
that the legal requirement could be circumvented.
"If we do not amend the law to allow foreign lawyers to practice law for the
KRT it would be a shame for Cambodia and the UN," Visol said. "But I think
that is impossible. The ECCC will consider all the laws."
The CBA has been deadlocked with internal dispute for nearly two years.
According to Jarvis, another problem slowing the ECCC is language. The court counts
English, French and Khmer as its three official languages, and none of the international
judicial officers speak Khmer.
"The huge wealth of documents we have is in Khmer. It is unrealistic to translate
it all into French and English," Jarvis said. "The other aspect is just
people working together. What language everybody is going to be using is unclear
at this point."