When
the Extraordinary Chambers in the Courts of Cambodia were established
to try senior leaders of the Khmer Rouge, provision was made to ensure
that any defendants would have adequate legal representation. This
included the payment of fees for Cambodian and international lawyers for
defendants who could not afford to pay for themselves.
To
administer the funds provided for legal defence, a Defence Support
Section (DSS) was established within the ECCC administration. It is, as
described on the ECCC web site, “responsible for providing indigent
accused with a list of lawyers who can defend them, and for providing
legal and administrative support to lawyers assigned to work on cases,
including the payment of fees”.
The
web site adds that the DSS “also acts as a voice for the defence at
outreach events and in the media, liaises with other tribunals and NGOs,
runs training courses and organises an internship program for young
lawyers”. The meaning of “acts as a voice” is further explained: “The
DSS ensures that the role of the defence is explained in outreach events
throughout Cambodia, by training NGO’s and journalists in defence
issues and by speaking to the media”.
That
is, the DSS is primarily an administrative body, with some subsidiary
functions that include explaining to the public why defence counsel are
necessary and what their role is. There was never any intention or
suggestion in its establishment that the DSS should try to coordinate or
suggest defence strategies. The DSS is not a branch of the defence,
just as the Office of Administration is not a branch of the prosecution.
This
purely administrative role has not always been understood or agreed by
everyone in the DSS. The first head of the section, Rupert Skilbeck,
gave himself the title of “principal defender” and sought to provide the
defence counsel with possible arguments and strategy. When the ECCC
judges rejected his request to appear in court on behalf of the defence,
he resigned from the DSS.
The
current acting head of the DSS, Nisha Valabhji, appears to share some
of the ambitions or misunderstanding of Rupert Skilbeck regarding the
section’s functions. In an article published on a web site of the
University of Pittsburgh Law School
(http://jurist.law.pitt.edu/hotline/) on 6 December, she published what
amounts to an attempt to change the court rules to assist the defendants
or, failing that, to have the UN withdraw from the ECCC.
Valabhji
seeks to obscure her totally unacceptable proposals by using the media
campaign waged by several international NGOs that are attempting to
coerce the ECCC into doing what they would like it to do.
Valabhji’s
article at times becomes so vague — deliberately so, I believe — as to
be incoherent. For example, she begins by saying that “the issue of
political interference” in the ECCC has been “addressed” by “several
major NGOs”, by the executive director of the International Bar
Association and — the real crusher — “individual commentators”.
Valabhji
doesn’t think it necessary to tell her US readers, most of whom would
have little knowledge of the ECCC and its functioning, what these three
different sources actually said or proposed. She doesn’t tell them that
the “major NGOs” are Human Rights Watch, which opposed creation of the
court in the first place and has never changed its attitude, and the
Open Society Justice Initiative, which from the beginning appointed
itself “monitor” of the ECCC, and which has run a years-long media
campaign attacking it. (Both receive huge sums from George Soros, whose
currency speculations ruined the economies of much of Asia and who
therefore regards himself as qualified to dictate to governments.)
Similarly,
she doesn’t quote the IBA executive director’s explanation of how he
came to write a critical report: “... I approached the international
lawyers representing the defendant Nuon Chea … I mentioned my interest
in looking more deeply into my concerns about the ECCC. I asked to join
their team and for permission to draft this report. They agreed.” A
volunteer member of Nuon Chea’s defence “team” produced a report
critical of the ECCC: who would have expected that?!
As
for the “individual commentators”, I wonder if this is taught as
courtroom technique in US law schools: “Ladies and gentlemen of the
jury, some individuals — I won’t tell you who they are — believe my
client is innocent. No, I won’t tell you exactly what they say either.”
From
this unpromising beginning, Valabhji’s article goes steadily downhill.
The “issue” “addressed” in the first paragraph of her article soon
becomes transformed into the ECCC “subject without doubt to judicial
interference”.
She
implies that Surya Subedi, the UN special rapporteur on human rights in
Cambodia, was criticising the ECCC’s handling of Case 003 when in fact
he was not commenting on the ECCC, but on what had been accomplished and
what remained to be done on the 20th anniversary of the signing of the
1991 Paris Accords.
She
claims that the ECCC’s decisions “lack legal basis and appear to be
written to force particular outcomes”, without discussing any legal
principles or even specifying which decisions she disagrees with. She
adds that the international judges of the Pre-Trial Chamber described
“numerous irregularities and legal errors” by the Co-Investigating
Judges in Case 003, without mentioning that these alleged mistakes
mostly concerned procedural disagreements — such as whether or not the
date of a document should be changed when a typographical error was
corrected — and without mentioning the Co-Investigating Judges’
response, which pointed out that the Pre-Trial Chamber had itself
committed the same “errors”.
Finally,
she gets to what must have been one of the big disappointments for the
defence lawyers in Case 002. In 2010, they tried to summon at
“witnesses” six current or former officials, including King Father
Norodom Sihanouk and Prime Minister Hun Sen. There was no reason to
think that any of the six possessed any relevant evidence — particularly
any that would exonerate the defendants. The proposed summons was
simply an attempt to embarrass the government and sow doubt about the
impartiality of the ECCC. The request eventually went to the Pre-Trial
Chamber, where it was rejected. In her semi-incoherent fashion, Valabhji
implies that the lack of a “super-majority” was what prevented the
defence getting its way. This is simply untrue: only a minority of the Pre-Trial Chamber supported the defence request.
Not
overly bothered by reality, Valabhji continues that “Such a situation” —
by which she apparently means the ECCC rules regarding super-majorities
— “... undermines the rights of the accused in Case 002 and the
suspects in Cases 003 and 004”. If one took such special pleading
seriously, the conclusion could only be that the super-majority formula,
worked out in prolonged negotiations in order to maintain both
international standards and Cambodian sovereignty, should be abandoned.
That would be tantamount to abandoning UN participation in the trial of
Khmer Rouge leaders.
And,
as she finally acknowledges, that is just what Valabhji favours. The
UN, she writes, “should ... consider revisiting the terms of the
Agreement. Or it should consider the withdrawal of cooperation and
ceasing to provide assistance to the court ...”.
For
the second time, it seems, the UN has put at the head of the DSS an
administrator who imagines him/herself as leading the defence — even if
doing that means destroying the court that appointed her.
Footnote: After leaving the ECCC, Rupert Skilbeck took a job as “litigation director” of the Open Society Justice Initiative.
