The so-called "last remaining barrier" to adopting the internal rules of the
Extraordinary Chambers in the Courts of Cambodia (ECCC) was removed on April 27
when the Cambodian Bar Association council decided to reduced the fees charged
to foreign lawyers from $4,900 to a flat fee of $500.
judges declared themselves "pleased" by the decision, their modest choice of
adjective perhaps inadvertently betraying the fact that questions still linger
over the future of the ECCC.
"We still have a couple of doubts about how
the fee will operate in practice," said Rupert Skilbeck, head of the defense
support section of the ECCC.
Foreign lawyers must now pay a $500 fee to
the CBA to get onto a list from which defendants will select the representation
of their choice.
But the ECCC has had a stop-start history. It still
faces constant questions over whether it will go ahead, and looks set to only
prosecute a handful of defendants. This raises the possibility that $500 will be
perceived as too large a sum to pay simply to be considered to represent a
client, said Skilbeck.
"Unfortunately, I believe most international
criminal lawyers will be put off by the $500 registration fee and may not apply
[as] they know the vast majority of lawyers on the list will not get a client,"
said Skilbeck. "But we have decided to start the process and see what happens.
Hopefully, I will be wrong and lawyers will apply."
judges insistence that the CBA reduce their initial fee of $4,900, which was
seen as a "prohibitive entry cost," aimed to eliminate the possibility of
defendants launching appeals on the basis that they were not afforded council of
choice. But if in six months time, only two or three lawyers have paid to be on
the list, defendants may still be able to employ this tactic to appeal, said
"The judges are confident that the $500 fee will not be seen as
a barrier to lawyers wishing to take part in the work of the ECCC," said Peter
Foster, spokesman for United Nations Assistance to the Khmer Rouge Trial
(UNAKRT). "As for what might happen in six months, we will just have to wait
until then to see how things develop."
Concerns also remain over whether
the fee will be applied to pro bono lawyers, said Skilbeck.
strange if someone who is prepared to incur considerable personal expense and
forfeit their regular income to come and represent victims of the Khmer Rouge
must pay the CBA another $500," he said.
Nou Tharith, the CBA's new
deputy secretary general and spokesman, said that all foreign lawyers who come
to work for the ECCC, including those working pro bono, will have to pay the
$500 fee when they register. This was, he said, a decision taken by the CBA
council which reflected a general consensus of feeling among all members of the
"It is a very positive signal and it will definitely
facilitate our common work in the future," said international investigating
judge Marcel Lemonde on May 2. "The resident members of the review committee are
currently working on the very last fine tuning of the rules and discussing the
organization of the plenary."
A successful plenary will approve the
ECCC's draft internal rules and allow the court to move forward, said Lemonde.
It is likely that the plenary session will now be held before the end of May, he
The need to restart progress at the ECCC was one of the key
factors that prompted the CBA council's decision to drop its fees for foreign
lawyers, said Tharith.
"We want the ECCC to proceed smoothly," he said.
"We were very concerned by the deadlock at the ECCC and felt we had to do
something to break it. Also, we are all very aware that the Cambodian people
have been waiting a long time for justice. We don't want to make them wait any
Theary Seng, director of the Center of Social Development,
welcomed the CBA's decision to reduce their fees, but cautioned that the ECCC
will most likely face further delays as the trial progresses.
little bits of problems [such as the standoff over bar fees] are circumscribed
by the immovable political boundary that surround the entire process," she said.
"The trial will move forward but at a glacial pace and at the lowest possible
But at present, there seem to be no further obstacles to the
adoption of the court's essential internal rules, said Foster.
no way to tell what will happen in the future but the issue of the fees was the
only thing holding back the international judges from being able to take part in
the plenary," he said. "The draft internal rules have all been agreed in
principle, so we are confident that the next plenary will be see the rules
adopted. Holding the plenary at the end of May is our goal and everyone is
working to come up with the exact date as soon as possible."