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
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.