Defence for the accused Khmer Rouge explains its positions and fears

Kambol (Phnom Penh, Cambodia). 10/06/2009: Richard Rogers, head of the Defence Support Section, during a joint press conference with the ECCC spokespersons
©John Vink/ Magnum

Ka-set
http://cambodia.ka-set.info

By Stéphanie Gée
16-06-2009

Richard Rogers, head of the Defence Support Section at the Khmer Rouge Tribunal, returned, during a press conference on Wednesday June 10th at the Extraordinary Chambers in the Courts of Cambodia (ECCC), to the last requests made by the defence teams, first among them the request for the publication of a United Nations report on the graft allegations within the hybrid jurisdiction. The call was since then supported by the co-Prosecutors and the lawyers for civil party groups 1 and 2. “If the evidence were invalidated by corruption, the judges could not be able to rule properly and the trial not be fair,” the British official explained, before detailing the positions and concerns of the defence at this stage of the proceedings.

The same went, Richard Rogers continued, for the allegations of interferences by the Cambodian government in the tribunal’s affairs. That was why the defence team for Nuon Chea, the former ideologist of the Khmer Rouge regime, requested clarifications on this issue both from the co-Investigating Judges and the co-Prosecutors. To this day, only the international co-Investigating Judge, Marcel Lemonde, responded to their letter, Richard Rogers stressed. “If the co-Prosecutors decide to issue indictments according to political affiliations and not evidence, there is no equality before the law,” he argued and added that for the time being, these were “only allegations and concerns.”

Denouncing misjudgements about the defence
The coordinator for the defence teams also reviewed what he considered to be misconceptions. For instance, equating the fact of raising concerns over the tribunal’s credibility with a defence tactic aimed at stretching the proceedings. “That is simply not true,” he stated. He argued that the investigation in case file 2 was continuing as normal and that the defence’s endeavour could not be labelled as an obstructionist move, because any question relating to the validity of a fair trial must be asked and solved. And as evidence that these requests were not “frivolous”, he added, parties took them seriously. A second misconception according to him was to say that the defence preferred to take shelter behind this debate rather than to prepare their clients’ cases. There again, Richard Rogers tore into pieces that point of view and explained that getting down to the challenges raised by a fair trial did not replace but instead complemented the work done by the lawyers regarding the evidence.

Moreover, according to Richard Rogers, several defence teams appreciated little the comment made by the co-Investigating Judges during their press conference on May 27th, that the defendants were slowing the proceedings down by using their right to remain silent. Some of the lawyers, he observed, deemed “inappropriate” to place the responsibility of the length of the proceedings on the accused, who only made use of one of their rights. “One of the roles of the judges is to help protect the rights of the accused and not to criticise the use of their rights,” he thus recalled.

Another misconception, Richard Rogers continued to list, was to say that it was not necessary to worry about possible political interferences, as the Pre-Trial Chamber was there to solve such issues. If such a mechanism was in place, it nonetheless remained, he insisted, that concern over a potential lack of independency of the court could not be dismissed on the sole ground that these cases were sent for examination by the Pre-Trial Chamber.

When medical issues becomes legal issues
Richard Rogers also reported that the defendants’ lawyers complained about their inability to have access to their clients when those, who are aged, are transferred to the hospital, Calmette in this case, or to prompt and specific information on their health status. The message was heard by the co-Investigating Judges who were currently “doing their best to assist the defence” on this point, even if not everything was settled yet “due to complicated relations between the Calmette hospital and the tribunal,” he confided.

Another matter questioned by the lawyers was the delay between the time they filed a request with the tribunal and the time when the request was heard by the Pre-Trial Chamber. Richard Rogers lamented that the delay often stretched over long months.

Investigation on the “Waterlilygate” closed, Helen Jarvis supported by the tribunal
Following the head of the Defence Support Section, the international spokesperson for the ECCC, Lars Olsen, read a statement of the tribunal reviewing the recent criticisms against it. Regarding what the press dubbed the “Waterlilygate” - a confidential letter from the office of the lawyers for Nuon Chea was found in a ditch in the tribunal’s courtyard, without the defence team’s knowing -, the investigation of the security office of the ECCC concluded that no evidence supported the hypothesis of a criminal act or a theft of document and recommendations to strengthen security were issued. “Each tribunal office must be responsible for the destruction of its own documents,” Lars Olsen recalled.

Regarding the concerns raised among others by the lawyers for Ieng Sary (former head of the Khmer Rouge diplomacy) and Nuon Chea, following the appointment of Helen Jarvis at the head of the Victims Unit, Knut Rosandhaug, deputy director of the Office of Administration of the tribunal, specified in a letter the distribution of responsibilities between the Victims Unit and the Public Affairs led by the Australian until then. He also recalled that any staff member had the right to have political opinions and added that the political affiliations of Helen Jarvis, who had co-signed in 2006 a letter of the Australian Leninist Party Faction (LPF), were known long before her appointment. He expressed his full support to her new assignment.