One of the issues holding up the Khmer Rouge Trial (KRT) is the question of how to
staff the court. Some describe this issue as being one of ensuring "equality
of arms." In legal terms, it means that the prosecution and defense in a criminal
trial have equal status. In simple terms, "equality of arms" means nothing
more than a fair fight.
So far, there have been differences of opinion between the Defense Support Section
of the Extraordinary Chambers in the Courts of Cambodia ("ECCC") and the
Cambodian Bar Association about how much foreign involvement is necessary. The issue
is presented as if Cambodians must choose between Cambodian "sovereignty"
(or applying national laws) and "international" standards of justice. This
is a false choice. Both Cambodian and international laws recognize the concept of
"equality of arms".
First, it is important to contextualize the phrase "equality of arms".
In any criminal trial the accused is not pitted against another individual, but against
the State. This is different from a civil case, where a defendant is accused by a
non-State plaintiff, and monetary damages are sought. In a criminal case the State
goes after unlawful behavior and seeks punishment, because crimes are considered
to be acts committed not only against an individual, but against society in general.
Thus, in criminal proceedings, the accused is prosecuted by the State, and the
great disparity between the two parties in terms of power and resources obliges the
State to ensure that the rights of the defendant are protected. Judges must ensure
that everyone is treated equally. This is the key to protecting the individual against
potential abuse by the prosecution.
Ultimately, defense rights benefit everyone: first, by providing a framework of protection
for the individual vis-à-vis the State, and second, by assuring the legitimacy
of court decisions. Thus, the right to a fair trial can be seen as a vital aspect
of any democracy.
The Cambodian Constitution explicitly provides that the State "shall recognize
and respect human rights as stipulated in the ... covenants and conventions related
to human rights..."
The International Convention on Civil and Political Rights ("ICCPR") is
one of the most important international instruments that codifies civil and human
rights, including fair trial rights, and has been adopted by most States in the world.
Cambodia ratified the ICCPR on May 26, 1992. Accordingly, the ICCPR is part of the
law in Cambodia, and the Kingdom is obliged to uphold and apply the protections set
forth in its provisions.
In the ICCPR the right to "equality of arms" is enshrined. This right consists
of four fundamental fair trial principles: (i) all parties, including the defendant,
must have an equal opportunity to present evidence and arguments before the court;
(ii) no party to the proceedings should benefit from a substantial advantage over
the other; (iii) all persons must have access to fair and effective judicial remedies;
(iv) everyone is entitled to a defense counsel of his own choosing (if he can pay),
and even if he cannot pay, the defendant has the right to experienced, competent
and effective defense counsel.
Cambodian law must ensure equality of arms by investing the defense counsel and the
prosecutor with equal status. Both parties must have an equal opportunity to present
evidence and arguments before the court. And neither party should benefit from a
substantial advantage over the other. In Cambodia, the defendant must be present
to defend the charges against him, and is entitled to legal counsel of his choice
to help defend against those charges.
The defendant also has the right to experienced, competent and effective defense
In Cambodian courts, judges seldom acknowledge the power of the State over the defendant.
On the contrary, in the majority of cases observed by the CSD Court Watch Project,
the courts simply compound the prejudice to the defendants, e.g., by presuming guilt
rather than innocence.
Additionally, in practice, there is a grave lack of adequately trained defense lawyers.
The prohibition against international lawyers from directly representing defendants
in the upcoming KRT would significantly influence the ability of the ECCC to meet
international standards in two ways.
First, there are currently both Khmer and international prosecutors but only Cambodian
defense counsel. Second, failure to allow full participation by international defense
counsel will put this fair trial element at risk. The accused has the right to choose
competent counsel. It is questionable whether Cambodian counsel can meet these requirements
today in light of their inexperience in trying crimes against humanity.
Thus, the choice is not whether there is a national standard of justice; there isn't.
Cambodia has already joined other nations in adopting "international" standards
of justice. The word "international" is incorrectly used to mean a different
level of standard of justice than that recognized by Cambodia; "international"
if we are to be coherent should only be used in the sense of "universal"
(i.e., that many countries have agreed on basic fair trial rights). It is not a vertical
comparison of standards (Cambodian vs. international) but a horizontal agreement
of Cambodia with other nations on legal principles. In this regard, "international"
standard of justice is also the national Cambodian-recognized standard. Hence, the
right to "equality of arms" is one of the universal fair trial rights that
Cambodia recognizes as applicable here, even if it is not always implemented in practice.
Theary C. Seng,