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.
