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The principal defender

Born in 1971, Rupert Skilbeck studied English Literature and Art History at the University

of York in England. Undertaking postgraduate legal training at the Inns of Court

School of Law in 1995, he was called to the bar at Grey's Inn, London, in April 1996.

Since then, Skilbeck has gained extensive experience in international criminal law.

At the Special Court in Sierra Leone he acted as Defense Adviser in 2004, and from

2005 to 2006 he was Director of Odsjek Krivicne Odbrane (OKO), the criminal defense

section of the specialist war crimes chamber of the Court of Bosnia and Herzegovina

in Sarajevo. In June 2006, the United Nations appointed him the Principal Defender

for the Extraordinary Chambers in the Courts of Cambodia (ECCC), also known as the

Khmer Rouge Trials (KRT). Skilbeck responded to questions from Charles McDermid.

How do you think the KRT will affect the way law is practiced in Cambodia?

The creation of the Defense Office of the ECCC is an ideal opportunity to build further

capacity within the legal profession in Cambodia. Many international organizations

want to work with the ECCC and this interest should be harnessed so as to leave a

legacy for the profession for years to come. The KRT will only happen once, and it

will be a great shame if this unique opportunity is missed.

Rhetorically speaking, could a judge who was a victim of the Khmer Rouge be impartial

or would this constitute a conflict of interest?

International law states that for justice to be done, justice must be seen to be

done. Judges must be both impartial and independent. Independence means that they

must be absolutely free from political influence, both in the way that they are appointed

and also in the way that they are removed. For a judge to be impartial, international

law states that the appearance of impartiality is important. Judges have been removed

before for writing books about defendants where they suggest that they are guilty,

for being on the committee of an NGO that was involved in the case and for having

a close friendship with the prosecutor. It is likely that the question of whether

a judge who was a victim of the Khmer Rouge can be impartial is going to be a significant

legal question that will be raised by the defense before the ECCC.

What is a "Principal Defender" and what role will you play in the ECCC?

The concept of a 'Principal Defender' is a comparatively new one in international

criminal law. When the International Tribunal for former Yugoslavia was created,

there was no one who spoke on behalf of the defense, only for the Prosecution and

the Judges. That meant that there was no co-ordination, and only several years after

the tribunal had been created was it possible for an association of defense lawyers

to be created, in order to be a voice for the defense.

The role of the Principal Defender is to promote the rights of the defense from the

very start of the life of the Court, and to set up the Defense Office. This office

will be staffed with up to 10 Cambodian and foreign lawyers who will assist individual

defense teams. The Defense Office will be independent in terms of the legal advice

that is given. We will be working on the legal arguments that are required to test

the ECCC, and to establish whether it meets international standards.

Will the ECCC pay for defendants to retain individual attorneys?

In addition to the lawyers in the Defense Office, each individual defendant will

have his own team of defense lawyers, and it is for him to choose his own lawyers.

International law is very clear on that - it is not for the Principal Defender to

choose. There will probably be a team of four or five lawyers working on each case.

These are not simple cases, but very complex, with large quantities of documents,

and one lawyer simply cannot deal with it alone. If the defendants cannot afford

to pay their lawyers, then the ECCC will pay the legal fees.

Is it possible for war crimes tribunals such as the ECCC to provide fair trials

for defendants?

It is important to remember that any defendant is presumed innocent until and unless

the prosecution can prove beyond a reasonable doubt that they are guilty. There have

been acquittals at all previous war crimes tribunals, and there is no reason to think

that that will not occur in the ECCC. If defendants are not tried in an overtly fair

way, then no one can ever be sure what really happened, and the whole purpose of

the court is wasted. Alternatively, we can have show trials.

Will the prosecution and defense have equal access to research documents?

The prosecution have a duty to make available to the defense all documents that might

show the defendant is not guilty. Prosecutors often fail to do this, and this has

caused massive problems in domestic courts and international tribunals. This is one

of the reasons why you need to have a large defense team in war crimes cases, so

that the defense lawyers can check all of the material that is available. The Defense

Office will be extremely vigilant to ensure that each defense team has access to

all documentation to which the prosecution has access.

How does it feel to be the person in charge of defending the former Khmer Rouge?

It has been said that there is no peace without justice, and where criminal trials

are part of the reconciliation and truth telling process those trials must be unquestionably

fair. This means that all those accused of serious crimes must have a lawyer, particularly

where they are accused of horrific crimes and most people have abandoned them. They

may be guilty of the crimes with which they are accused, but often they are not.

If there are guilty pleas, then the defence advocate must ensure that his client

is treated fairly by the court. Where the defendant pleads not guilty, then the advocates

will argue zealously to test the evidence of the prosecution, to point out the errors

and to put forward an alternative view of the facts.

We are lucky to have both a Defense Office and individual lawyers to defend the cases,

so that we can demonstrate to the people of Cambodia and to other countries in the

region exactly how a fair trial should be conducted. I consider it a privilege to

be part of this historic process.

How important are witness protection schemes for the integrity of the ECCC?

It is absolutely fundamental that there must be a full witness protection program

for prosecution and defense witnesses. This needs expertise, training, financial

and political support. Without this, trials cannot be fair.

What do you think the nature of the ECCC trials will be?

If the prosecutors restrict themselves to bringing cases against only the senior

leaders of the Khmer Rouge, then the process before the ECCC is going to be much

more like a truth commission than the adversarial trials of other war crimes tribunals.

Where the defendants are all elderly, any potential sentences will be life sentences,

no matter what offences they may be convicted of.

Under the investigative system of justice, there is much more of a concept of a "search

for the truth" than in the adversarial system, which is more concerned with

"Can they prove it?" For many, the prime objective of the ECCC, for witnesses

and defendants alike, is to be able to explain in public what happened to Cambodia.

This also means that the ECCC is likely to ask the question "Why did it happen?"

which is not normally something that concerns an adversarial trial.

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