A volunteer for the defence

[Written on 7 December 2011 and distributed generally to media in Phnom Penh.]

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.

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