Photo by: ECCC/POOLFormer KR foreign affairs minister Ieng Sary's defence lawyer Michael Karnavas (centre) in court during a pretrial hearing.
The Phnom Penh Post
Written by Georgia Wilkins
Monday, 30 March 2009
The tribunal will achieve very little unless graft allegations are dealt with, says Ieng Sary's lawyer Michael Karnavas.
You were critical of the idea of a Khmer Rouge tribunal when it was first being discussed. As a lawyer for one of the [charged persons], do you still believe this is the case?
My primary objection back then - and it still stands today - is the fact that these trials will not deal with certain inconvenient truths, such as the responsibility of all actors involved in the events preceding and following the KR period. It is as if the process is being gamed to view and judge the period and events in the abstract, without any historical context. My belief ... is that a truth and reconciliation process similar to the South African model would be far more beneficial in getting to the historical truth and giving far more opportunities for those involved in these historical events to be heard.
These trials will fall far too short in determining what happened, let alone why these events came about in the first place and how might future generations deal with similar circumstances. Better to put the time, effort and money to better use.
How serious are the allegations of corruption levelled at officials at the ECCC?
If what is being reported in the press is true - and I say if, because we have yet to see the results of the investigations - this sort of corruption and the extent of it, as reported, would be in a class of its own. I think it is imprudent to simply suggest that this only deals with administrative matters and not judicial matters.
Those who are reported to be on the take or having to rent their positions by way of a shakedown mafia style have the ability to impact every level of the proceedings. If one has to pay to keep his position, then how can it be said that this very same person ... will not be subject to other pressures designed to achieve a particular result? If what is being reported is true, then the ECCC is suffering from cancer. The question now is whether there is a willingness to impose a regime of massive intervention to save the ECCC or simply allow things to persist to the point where the cancer becomes terminal.
Some argue that regardless of which individuals at the court have received kickbacks, the UN shares responsibility for revealing ... what these allegations are. How guilty do you see the UN in this saga?
The UN is all too quick to lecture about the rule of law, transparency and the need to have international standards. Regrettably, the UN at times behaves as if it is above what it preaches. The UN - which is an excellent institution and does an enormous service to humanity - is also a political institution and, as such, unfortunately, is overly sensitive to bad news.
In this instance, the UN would be better served if it came clean or risks being further tainted in this ongoing scandal. In the end, the UN may need to make a very hard decision: to stay with the ECCC and continue to fund it and actively participate in the proceedings from administrative to judicial, to cut its losses, try to preserve its name and reputation, and walk away.
You have criticised the UN's double standards when it comes to transparency in the past. Do you see the same pattern emerging here?
Yes. The UN should not be above scrutiny and criticism. The UN may be trying to take the necessary steps to get to the bottom of the corruption scandal, but it does need to be much more forthcoming; the sooner the better, especially given that we are dealing with a judicial institution.
Do you believe the court will leave behind a strong legal legacy?
It all depends on how the trials go! This is an exquisite opportunity for the Cambodian judicial system and legal profession to grow and develop. It is also a good opportunity to showcase a fair and transparent process which could go a long way in building confidence in the judiciary as a whole.
What is your greatest concern about the tribunal to date?
As with any other tribunal where I am involved in defending a case, my concern is whether my client can and will get a fair trial. Let's face it, all of the charged persons before the ECCC have already been found guilty in the court of public opinion. This, one can say, is a natural human reaction, which is why, of course, when an accused goes to court, it is expected that he will be tried by a detached panel of judges who will not be swayed by public opinion or pressures from outside forces - such as donor countries.
Finally, what, in your opinion, will the ECCC achieve?
I am afraid that unless and until the ECCC is cleared of this corruption scandal, very little will be seen to have been achieved at the end of the day. Justice needs to be seen to be done, and thus far, it is too early to tell if that is possible. There is a sense of urgency on the part of some of the donor countries to just get on with the trials, even if the process is flawed or tainted.
The problem with this myopic way of looking at things is that if the process is flawed the results are valueless. I cannot underscore enough that procedural justice is just as important - if not more important - than substantive justice - especially in a society where the rule of law is perceived ... to be a malleable commodity whose shape and form is dependent on situation, convenience and predestined results.
INTERVIEW BY GEORGIA WILKINS
Written by Georgia Wilkins
Monday, 30 March 2009
The tribunal will achieve very little unless graft allegations are dealt with, says Ieng Sary's lawyer Michael Karnavas.
You were critical of the idea of a Khmer Rouge tribunal when it was first being discussed. As a lawyer for one of the [charged persons], do you still believe this is the case?
My primary objection back then - and it still stands today - is the fact that these trials will not deal with certain inconvenient truths, such as the responsibility of all actors involved in the events preceding and following the KR period. It is as if the process is being gamed to view and judge the period and events in the abstract, without any historical context. My belief ... is that a truth and reconciliation process similar to the South African model would be far more beneficial in getting to the historical truth and giving far more opportunities for those involved in these historical events to be heard.
These trials will fall far too short in determining what happened, let alone why these events came about in the first place and how might future generations deal with similar circumstances. Better to put the time, effort and money to better use.
How serious are the allegations of corruption levelled at officials at the ECCC?
If what is being reported in the press is true - and I say if, because we have yet to see the results of the investigations - this sort of corruption and the extent of it, as reported, would be in a class of its own. I think it is imprudent to simply suggest that this only deals with administrative matters and not judicial matters.
Those who are reported to be on the take or having to rent their positions by way of a shakedown mafia style have the ability to impact every level of the proceedings. If one has to pay to keep his position, then how can it be said that this very same person ... will not be subject to other pressures designed to achieve a particular result? If what is being reported is true, then the ECCC is suffering from cancer. The question now is whether there is a willingness to impose a regime of massive intervention to save the ECCC or simply allow things to persist to the point where the cancer becomes terminal.
Some argue that regardless of which individuals at the court have received kickbacks, the UN shares responsibility for revealing ... what these allegations are. How guilty do you see the UN in this saga?
The UN is all too quick to lecture about the rule of law, transparency and the need to have international standards. Regrettably, the UN at times behaves as if it is above what it preaches. The UN - which is an excellent institution and does an enormous service to humanity - is also a political institution and, as such, unfortunately, is overly sensitive to bad news.
In this instance, the UN would be better served if it came clean or risks being further tainted in this ongoing scandal. In the end, the UN may need to make a very hard decision: to stay with the ECCC and continue to fund it and actively participate in the proceedings from administrative to judicial, to cut its losses, try to preserve its name and reputation, and walk away.
You have criticised the UN's double standards when it comes to transparency in the past. Do you see the same pattern emerging here?
Yes. The UN should not be above scrutiny and criticism. The UN may be trying to take the necessary steps to get to the bottom of the corruption scandal, but it does need to be much more forthcoming; the sooner the better, especially given that we are dealing with a judicial institution.
Do you believe the court will leave behind a strong legal legacy?
It all depends on how the trials go! This is an exquisite opportunity for the Cambodian judicial system and legal profession to grow and develop. It is also a good opportunity to showcase a fair and transparent process which could go a long way in building confidence in the judiciary as a whole.
What is your greatest concern about the tribunal to date?
As with any other tribunal where I am involved in defending a case, my concern is whether my client can and will get a fair trial. Let's face it, all of the charged persons before the ECCC have already been found guilty in the court of public opinion. This, one can say, is a natural human reaction, which is why, of course, when an accused goes to court, it is expected that he will be tried by a detached panel of judges who will not be swayed by public opinion or pressures from outside forces - such as donor countries.
Finally, what, in your opinion, will the ECCC achieve?
I am afraid that unless and until the ECCC is cleared of this corruption scandal, very little will be seen to have been achieved at the end of the day. Justice needs to be seen to be done, and thus far, it is too early to tell if that is possible. There is a sense of urgency on the part of some of the donor countries to just get on with the trials, even if the process is flawed or tainted.
The problem with this myopic way of looking at things is that if the process is flawed the results are valueless. I cannot underscore enough that procedural justice is just as important - if not more important - than substantive justice - especially in a society where the rule of law is perceived ... to be a malleable commodity whose shape and form is dependent on situation, convenience and predestined results.
INTERVIEW BY GEORGIA WILKINS
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