A complaint alleging “crimes against humanity” was filed with the International Criminal Court on 7 October against unnamed persons in Cambodia. My previous article (https://letters2pppapers.wordpress.com/archives/2014-2/a-very-strange-complaint-to-the-icc/) examined the content of the complaint, to the limited extent it has been made public. In this article, I will look at where the allegations come from and why its authors chose to lodge them with the ICC.
This is the second time this year that lawyers have filed an ICC complaint concerning Cambodia. The first complaint, in March, accused Hun Sen of “genocide” for supposedly interfering with the Khmer Rouge tribunal. It proved only that, if you’ve got enough money, you can find a lawyer who will argue anything, no matter how ridiculous.
The new complaint, filed by British lawyer Richard Rogers from a legal firm named Global Diligence, was dismissed by the government as nothing more than an attempt to use the ICC to promote the Cambodian National Rescue Party. Council of Ministers spokesperson Phay Siphan pointed out that Kem Monovithya, the CNRP’s deputy head of public affairs and a daughter of CNRP deputy leader Kem Sokha, had publicly identified herself with the action.
This was denied by the CNRP, although Kem Monovithya did acknowledge that her name was on the original press release regarding the complaint, as reported in the Phnom Penh Post, 8 October.
The same Post article, by Kevin Ponniah, noted: “… in January during violent protests, the opposition Cambodia National Rescue Party announced it had engaged Rogers to investigate crimes committed by state security forces against civilians for a possible ICC complaint”. The article also explained that Rogers “is the CNRP’s international counsel”, but, nevertheless, “the complaint has been filed on behalf of those victims, not the political party”. How likely does that sound? Are we supposed to believe that Sam Rainsy and Kem Sokha advised the complainants against filing their action, but they didn’t listen? And that Rogers forgot what he was originally hired to do?
The hand of the CNRP was also evident in the March complaint to the ICC, if not quite so obviously. At that time, Post journalist Ponniah wrote that the complaint “has no connection” with the CNRP, without stating who had given him that assurance –which proved to be extremely doubtful. Only one Cambodian individual and one Cambodian organisation were publicly identified as complainants in the filing, and it turned out that both were closely involved with Cambodian-Americans who publicly back the CNRP, as I documented at the time (https://letters2pppapers.wordpress.com/archives/2014-2/the-company-they-keep/).
Why the ICC?
Why do the CNRP or its supporters use the ICC as the vehicle for their attacks on the government? The legal machinery of the ICC is rather ponderous and slow moving, not the instrument of choice if you want to change anything very quickly. As Kevin Ponniah wrote in the 8 October Phnom Penh Post, a prosecutors’ decision on whether to open a preliminary investigation might be made in six months, but, if begun, such an investigation “would then likely take years, and there would be no guarantee of either a formal investigation or trial”.
But its rules and the associated slowness make the ICC ideal for people whose real goal is political propaganda, not pursuing an actual legal case. For a start, anyone at all can file a complaint (called a “communication”).
To do this, it is necessary only to allege that a crime has been committed that comes under the court’s jurisdiction and convince the prosecutors that there is a “reasonable basis to believe” that such a crime has been committed. As it is put in a joint publication of Global Diligence and an NGO called International Federation for Human Rights FIDH), “At this stage the Communication need not ‛prove’ the commission of crimes against humanity”.
The ease of beginning a proceeding makes sense as an attempt to ensure that marginalised and vulnerable people who lack any sort of competent legal representation can still bring their situations to the attention of the ICC.
But in a country where there is a vigorous and vocal opposition with a strong parliamentary representation, where there are numerous NGOs competing to see which of them can criticise the government most severely, that initial relaxation of the normal requirements for filing a case is open to abuse. It means that unscrupulous people with the money to hire a lawyer can file unjustified allegations and gain media publicity that suggests there is substance to the allegations, if only because the ICC hasn’t rejected them immediately (and, unlike the situation in most criminal courts in the world, there is no penalty for filing a complaint which the filer knows to be false).
Speaking of lawyers …
The joint FIDH-Global Diligence publication mentioned above (intended to explain the complaint to the public) says that Global Diligence is a “legal advisory firm doing public interest work”. Global Diligence’s web site says that it is “a for-profit legal advisory service engaged in public interest work”.
The first description could leave readers thinking that Global Diligence does what it does purely out of concern for the public interest – that it is a sort of selfless legal NGO. The description on the web site adds a rather important qualification: “for profit”. That is, they do what they do because they get paid for it. The “public interest” – always a highly contestable topic – is whatever the paying client says it is.
Describing lawyer Richard Rogers, the same publication says that his legal career includes having been “Principal Defender at the Extraordinary Chambers in the Courts of Cambodia”. That sounds very much like a high-powered position representing the defendants to the court. But the statement is untrue.
When the ECCC was being established, in June 2006, the United Nations advertised for and appointed a “Principal Defender” (not Rogers). The title was taken from another court in which the UN was involved, and it did not correspond to the duties of the position here, which was a purely administrative one, dealing with things like how defence lawyers would be selected and paid. Therefore, when the court’s internal rules were adopted a year later, the title of the position was changed to “Head of the Defence Support Section”. More than a year and a half after that, in February 2009, Rogers was appointed Head of the Defence Support Section. He was never “Principal Defender”.
If Richard Rogers can’t recount his own career correctly, it raises doubts about how accurately he can report allegations of “crimes against humanity” in Cambodia.