Learning from the ECCC experience

 

On 5 October 2016, I was invited to participate in a seminar organized by the United Nations Office of the High Commissioner for Human Rights – Cambodia (OHCHR) in cooperation with the Bar bakcAssociation of the Kingdom of Cambodia (BAKC), titled Questioning Techniques from the Defense’s Perspective and the Use of National and International Law in Legal Arguments. Held in Phnom Penh, this training was part of the Legal Dialogue Series 2016: a series of trainings organized by the OHCHR as part of its ongoing efforts to support and strengthen the development of Cambodian legal professionals, including by facilitating the dissemination of skills and knowledge from international and Cambodian lawyers at the Extraordinary Chambers in the Courts of Cambodia (ECCC) to Cambodian lawyers practicing in local courts.

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Ms. Tanya Pettay, Mr. So Mosseny, Michael G. Karnavas

Before I get to the training and legacy related matters, a note of personal pride.  It is always satisfying to pass on your knowledge and experience to younger lawyers, encouraging them to push the boundaries in representing their clients, to stand up to judges and to remind them of their clients’ fair trial rights, which, as we will see, are ingrained in the Cambodian Constitution, which incorporates the International Covenant on Civil and Political Rights (ICCPR).1 Constitution of the Kingdom of Cambodia dated 24 September 1993 Modified by Kram dated 8 March 1999 promulgating the amendments to Articles 11, 12, 13, 18, 22, 24, 26, 28, 30, 34, 51, 90, 91, 93 and other Articles from Chapter 8 through Chapter 14 of the Constitution of the Kingdom of Cambodia, adopted by the National Assembly on 4 March 1999, Art. 31.  But it was a real treat to be joined by most members of the Ieng Sary defense team: Ang Udom, So Mosseny, Tanya Pettay, and Helen Sullivan-Looney.

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Mr. Ang Udom

Ang Udom and I go back to 1994 when I met him while conducting a one-month trial advocacy training for the Cambodian Defender Project, which at the time was training 25 human rights advocates to become public defenders.  This was before the BAKC existed, and before law schools were producing law graduates. Since the passing of Ieng Sary, who was being tried in Case 002 (information concerning the Ieng Sary defence case can be found at www.iengsarydefence.org), Ang Udom and I have represented Mr. Meas Muth in Case 003.  Once again we are privileged to have Tanya Pettay and Helen Sullivan-Looney as legal consultants in Case 003, and it is a real pleasure to see So Mosseny, the case manager in the Ieng Sary case, heading the defense for Mr. Yim Tith in Case 004 along with another former member of the Ieng Sary defense team, Ms. Suzana Tomanović.

Incorporating the ICCPR in domestic trials

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OHCHR Representative Ms. Wan-Hea Lee

OHCHR Representative Ms. Wan-Hea Lee kicked off the training with her welcoming remarks. If you have been to these sorts of trainings, you expect bland and generic comments, nothing that is expected to impress or excite. Not so this time.  Ms. Lee’s welcoming remarks inspired. Ms. Lee reminded the participants that Cambodia had signed on to certain international legal instruments that have been incorporated in the Cambodian Constitution. She specifically referred to the Universal Declaration of Human Rights2Universal Declaration of Human Rights, UNGA Res. 217 A (III) (10 December 1948). and the ICCPR.3 International Covenant on Civil and Political Rights, Adopted and opened for signature, ratification and accession by United Nations General Assembly resolution 2200A (XXI) of 16 December 1966, entry into force 23 March 1976 in accordance with Article 49. She noted how important it was for the domestic courts to systematically apply in their daily and ordinary practice the fundamental human rights principles found in these instruments.

Ms. Lee highlighted that these principles were being applied at the ECCC, and that as a court within the judicial system of Cambodia, its jurisprudence could demonstrate the application of fundamental human rights before other courts in Cambodia. She specifically made reference to a 2007 Constitutional Council decision where the Constitutional Council clarified that a judge must not only look to a particular law at issue “but also relies on the law. The term ‘the law’ here refers to the national law including the Constitution which is the supreme law and other applicable laws as well as the international conventions that Cambodia has recognized, especially the Convention on the Rights of the Child.”4 Cambodian Constitutional Council Decision, No. 092/003/2007, 10 July 2007.

Listening to Ms. Lee reminded me of a somewhat similar training I participated in in Phnom Penh in December 1995, where I made a presentation at a seminar sponsored by the International Human Rights Law Group for the Ministry of Justice of Cambodia. The gist of my presentation was similar to hers: Cambodia signed on to conventions enshrining internationally recognized human rights and fair trial rights, and, therefore, there is no reason why these rights should not be fully respected, and judges can and should make specific reference to these international human rights instruments in grounding their decisions. Ms. Lee’s remarks also brought to mind my remarks during my presentation at the 2012 ECCC legacy conference, which were further developed in my article Bringing Domestic Cases into Compliance with International Standards. There, I specifically urge Cambodian defense lawyers to constitutionalize (and thus internationalize) their arguments by making reference to Article 31 of the Cambodian Constitution5 Article 31 of the Cambodia Constitution provides: “The Kingdom of Cambodia recognizes and respects human rights as enshrined in the United Nations Charter, the Universal Declaration of Human rights and all the treaties and conventions related to human rights, women’s rights and children’s rights. Khmer citizens are equal before the law, enjoying the same rights, liberties and duties regardless of race, color, sex, language, beliefs, religions, political tendencies, birth origin, social status, wealth or other situations. The exercise of personal rights and liberties by any individual shall not adversely affect the rights and freedom of others. The exercise of such rights and liberties shall be in accordance with the law.” and Article 14 of the ICCPR.6 ICCPR, Art. 14(1): fair and public hearing; Art. 14(2): presumption of innocence; Art. 14(3) minimum guarantees: to be informed properly and in detail about in a language he understands about the charges; to have adequate time and facilities to prepare a defense and communicate with counsel of own choosing; to be tried without due delay; to be tried in his own presence and to defend himself in person or through the counsel of own choosing; to examine and have examined witnesses against him; to have free assistance of an interpreter; and not to testify against himself or confess guilt; Art. 14(5) to have a conviction and sentence reviewed by a higher court according to the law; and Art. 14(7): protection against double jeopardy.  I also urged them to cite ECCC jurisprudence as well as jurisprudence from other jurisdictions such as the International Criminal Tribunal for the former Yugoslavia, International Criminal Tribunal for Rwanda, and International Criminal Court (ICC), cited as supporting authority by the ECCC – which are (at least in theory) instructive, i.e., they lend support to as opposed to supplanting Cambodian jurisprudence.

As I listened to Ms. Lee, I could not help but reminisce.  More than 20 years have passed since I first addressed virtually the entire judiciary and prosecution of Cambodia on the binding nature of these international legal instruments in investigating, prosecuting, and trying cases. The fact that the OHCHR Representative was addressing this issue after so many years, and so much effort spent on improving the judiciary and promoting the rule of law, was a poignant reminder of just how little progress has been made in Cambodia since the first elections in 1993 and the adoption of the Cambodian Constitution.

With this backdrop, let’s look at the training.

Lessons learned about questioning techniques

mockingbirdcrossThe morning was devoted to questioning techniques during trial proceedings. Though Cambodia is based on or modeled after the French civil law system, in practice, because of the continuing influence of common law trainers, many common law adversarial modalities have been adopted or blended into the proceedings. For instance, defense lawyers are allowed to conduct a modicum of investigation to gather evidence and to search for witnesses and physical evidence. Also, a fair amount of cross-examination through leading questions is permitted. As such, training on how to conduct proper direct and cross examinations, impeach a witness, question expert witnesses, and deal with hostile witnesses, and on the basic evidentiary objections and how to raise them effectively to make a record for the appeal, is very useful.

After going over the fundamentals of questioning techniques, we then segued to the ECCC experience. The purpose was to see whether there were lessons learned, and, if so, whether these lessons could be applied in trials in ordinary Cambodian courts. Due to time limitations we were unable to share all of the lessons we had learned during the course of our time in Case 002, but we were able to share some of the more interesting ones.

The most important lesson defense teams learned had to do with using a dynamic open-ended method of questioning witnesses, rather than the traditional method of leading questions. The ECCC Trial Chamber’s prohibition on leading questions,7 Case of NUON Chea et al., 002/19-09-2007-ECCC/TC, Trial Transcript, 9 April 2012, E1/61.1, ERNs 00800399-401; Case of NUON Chea et al., 002/19-09-2007-ECCC/TC, Trial Transcript, 22 November 2012, E1/145.1, ERNs 00865787-790. coupled with its decision to effectively hand over the reins of the trial to the parties,8 See, e.g., Case of NUON Chea et al., 002/19-09-2007-ECCC/TC, Trial Chamber Memorandum, “Advance Notice of Assignment of Examination of Three Civil Parties during First Trial Segment (5-16 December 2011),” 23 November 2011, E131/10. hampered the defense teams’ ability to effectively question witnesses.  As the ECCC was established within a civil law system, the Trial Chamber should have led the questioning of witnesses, with the parties merely filling a supplementary role where necessary. However, the Trial Chamber opted to only ask a few introductory questions of witnesses and then turn the questioning over to whichever party had proposed the witness.  While Judges might later ask additional questions of the witness, the parties did the bulk of the questioning. The prosecution focused its questions on eliciting information that would prove its inculpatory theory of the case.  The civil party lawyers did the same. Thus, the trial resembled a common law, adversarial trial in which each party is trying to make its particular case, rather than a civil law, inquisitorial trial in which the Trial Chamber Judges lead the process and seek to determine the truth.  In an adversarial trial, the use of leading questions is the primary tool in a defense attorney’s arsenal: it enables attorneys to quickly and sharply expose weaknesses in the prosecution’s evidence. At the ECCC, however, the defense teams were stripped of this tool, which prevented them from being able to effectively raise questions about a witness’s credibility, control witnesses, and work within the time constraints placed upon them by the Trial Chamber. Defense teams had to turn to an open-ended method of questioning witnesses, which is more time-consuming, complex, and renders witnesses difficult to control; all significant obstacles in a trial setting such as that presented at the ECCC.

Another lesson learned was how to handle judges who regularly use leading questions – particularly in ways that mischaracterize a witness’s evidence – in their examinations of witnesses, despite leading questions being prohibited by the Trial Chamber. If an opposing party is using leading questions and/or misstating the evidence, a defense attorney would immediately object. Where a judge is the one doing the improper questioning, the situation is a bit trickier. Can a defense attorney really object to each and every leading and/or improper question asked by a judge? Would this be perceived positively by the judge in question and his or her colleagues on the bench? Defense attorneys had to selectively object to the most egregious questions, reserving for written submissions or closing arguments their larger arguments on the judge’s behavior and the resulting impact on the probative value of a witness’s testimony.

We also discussed what to do when a fact witness testifies as an expert witness. A long-time researcher on the Khmer Rouge, whom the parties sought to call as an expert witness and who in fact was an expert on the Khmer Rouge, refused to testify before the Trial Chamber unless he did so as a fact witness.9 For transcripts of this witness’s testimony, see Case of NUON Chea et al., 002/19-09-2007-ECCC/TC, Trial Transcript, 9 July 2013, E1/220.1; Case of NUON Chea et al., 002/19-09-2007-ECCC/TC, Trial Transcript, 10 July 2013, E1/221.1; Case of NUON Chea et al., 002/19-09-2007-ECCC/TC, Trial Transcript, 11 July 2013, E1/222.1; Case of NUON Chea et al., 002/19-09-2007-ECCC/TC, Trial Transcript, 15 July 2013, E1/223.1; Case of NUON Chea et al., 002/19-09-2007-ECCC/TC, Trial Transcript, 16 July 2013, E1/224.1; Case of NUON Chea et al., 002/19-09-2007-ECCC/TC, Trial Transcript, 17 July 2013, E1/225.1; Case of NUON Chea et al., 002/19-09-2007-ECCC/TC, Trial Transcript, 18 July 2013, E1/226.1.  His dictation of the terms of his testimony caused a number of problems. A fact witness can testify only to what he has personally seen, heard, or perceived. He cannot offer any opinions or conclusions on his observations. An expert witness, in contrast, provides specialized knowledge that is otherwise unavailable to the Trial Chamber, and is permitted to offer his conclusions based on that knowledge (though he cannot give opinions on ultimate issues of fact). This particular witness constantly was asked questions that, either directly or indirectly, sought his conclusions on matters of Khmer Rouge policy, conditions in Cambodia from 1975 to 1979, etc., and he readily answered these questions.  Such testimony was entirely inappropriate testimony for a fact witness to give. He should have only been permitted to testify about what he actually observed in Cambodia at the relevant time (testimony that would have been quite limited in scope and utility). The Trial Chamber, however, failed to manage his testimony and proactively direct the parameters of his testimony.  While defense teams valiantly tried to object when his testimony strayed into inappropriate territory, the Trial Chamber did little to rein in the witness.  The lesson learned from this situation was that restrictions on this fact witness’s testimony should have been raised earlier with the Trial Chamber before the witness came to testify – he should have only been permitted to testify as an expert witness, otherwise not at all. And the defense should have continuously argued during and after his testimony that any conclusions or opinions he offered in his capacity as a fact witness had no probative value and must be disregarded by the Trial Chamber. If the Trial Chamber will not control a witness, defense teams must do their utmost to make the Trial Chamber do its duty.

Finally, we discussed with the participants the importance of raising irregularities in witness interviews as early as possible in preparation for the examination of the witnesses during trial. We discussed various discrepancies and irregularities we had discovered at the Case 002 trial stage when listening to audio recordings of witnesses’ interviews with ECCC investigators and comparing those recordings to the written summaries of the interviews.  These written summaries were prepared by the investigators after the interviews. They were included in the case file that was eventually presented to the Trial Chamber. In several audio recordings, our Cambodian colleagues observed, for example, that the question-and-answer process was staged (i.e. the questions and answers were written out after an unrecorded interview and then read out for the audio recording), or that other persons were present during the interview who answered questions for or gave information to the witness, or that unrecorded prior meetings had occurred between the witness and the investigator, or that unidentified documents were shown to the witness.10 The Ieng Sary Defense filed several motions bringing these irregularities to the Trial Chamber’s and Supreme Court Chamber’s attention: Case of NUON Chea et al., 002/19-09-2007-ECCC-TC, IENG Sary’s Request to Hear Evidence From the Interpreter Concerning Witness Phy Phuon’s Second OCIJ Interview Whereby Irregularities Occurred Amounting to Subterfuge, 23 August 2012, E221; Case of NUON Chea et al., 002/19-09-2007-ECCC-TC, IENG Sary’s Request that the Trial Chamber Seek Clarification from the OCIJ as to the Existence of Any Record Relating to the Questioning of Witness Oeun Tan on 8 October 2008, 29 August 2012, E224; Case of NUON Chea et al., 002/19-09-2007-ECCC-TC, IENG Sary’s Request that the Trial Chamber Seek Clarification From the OCIJ as to the Questioning of Witness Norng Sophang on 17 February 2009 and Summon the OCIJ Investigators to Give Evidence Regarding this Interview, 27 September 2012, E234; Case of NUON Chea et al., 002/19-09-2007-ECCC-TC, IENG Sary’s Request for the Trial Chamber to Hold a Public Hearing and Take Evidence Concerning the OCIJ’s Widespread and Systematic Practice of Conducting Unrecorded Interviews with Witnesses, 2 November 2012, E241; Case of NUON Chea et al., 002/19-09-2007-ECCC/TC, Appeal Register –  IENG Sary’s Appeal Against the Trial Chamber’s Decision on Defence Requests Concerning Irregularities Alleged to Have Occurred During the Judicial Investigation (E221, E223, E224, E224/2, E234, E234/2, E241 and E241/1), 10 January 2013, E251/1.  The written summaries of these interviews did not reflect these events, yet these events have an impact on the reliability of what is presented in the written summaries and taken as truth by the Trial Chamber and parties.  The Trial Chamber did not consider that these events were serious enough to warrant action, considering that the defense should have raised these issues at the pre-trial stage and, in one instance, warning us against conducting our own investigations (which we had not done).11 Case of NUON Chea et al., 002/19-09-2007/ECCC/TC, Decision on Defence Requests Concerning Irregularities Alleged to Have Occurred During the Judicial Investigation (E221, E223, E224, E224/2, E234, E234/2, E241 and E241/1), 7 December 2012, E251, paras. 31, 33-36, 38.  The Trial Chamber began to refuse to allow defense teams to question witnesses about the circumstances of their interviews.12 See, e.g., Case of NUON Chea et al., 002/19-09-2007/ECCC/TC, Trial Transcript, 6 September 2012, E1/123.1, ERNs 00846666-676.  This refusal came despite the fact that any circumstances that impact the reliability of what a witness reports to an investigator should be prime fodder for a trial, as they directly impact the witness’s credibility and the strength of the evidence that the Trial Chamber ultimately will assess when rendering its verdict. The lesson learned was that defense teams must not assume that the Trial Chamber will act when such evidentiary concerns are raised. They must have a process in place from the beginning by which the defense team listens to all available audio recordings of witness interviews, compares them with the written summaries of the interviews, and immediately raises all discrepancies and irregularities with the relevant judges. Such problems must be raised early and often to establish for the record the weaknesses in the evidence.

Use of National and International Laws in Legal Argument

The afternoon session dealt with the use of national and international laws in formulating legal arguments. We started by presenting an overview of the relevant provisions of the Cambodian Constitution and international legal instruments. We then gave a broad overview of the various fair trial rights, explaining the purpose behind the rights and how they are interconnected. Having set the general context, we then went into specifics, with some vivid examples.

Concerning the use of national and international law in legal arguments, the discussion focused on the fair trial rights enumerated in the ICCPR. Because the Cambodian Constitution requires respect for human rights instruments to which Cambodia is a party, the fair trial provisions of the ICCPR must be respected in Cambodian courts.  We described these fair trial rights and gave examples from the ECCC where fair trial rights arguments had been made successfully.  Here are some examples:

Concerning the right to be informed of the nature and cause of the charges, we explained how some defense teams had argued in Case 002 that this right would be violated if all documents in the Case File were not translated. The Co-Investigating Judges issued a decision stating that the Introductory and Final Submissions and the factual elements of proof on which they rely, the Indictment and the elements of proof on which it relies, all judicial decisions and orders, and all party submissions must be translated into a language the charged person / accused understands.13 Case of NUON Chea et al., 002/19-09-2007-ECCC-OCIJ(PTC12), Dcision on IENG Sary’s Appeal against the OCIJ’s Order on Translation Rights and Obligations of the Parties, 20 February 2009, A190, para. 32.

Concerning an accused’s right to adequate facilities and to communicate with counsel of his choosing, we gave an example where the Ieng Sary Defense alleged that this right had been violated by an order preventing interviews between Mr. Ieng Sary and his lawyers from being recorded.  The Pre-Trial Chamber recognized that this order could violate the accused’s rights and overturned the prohibition on recording.14 Case of NUON Chea et al., 002/19-09-2007-ECCC-OCIJ(PTC64), Decision on IENG Sary’s Appeal against Co-Investigating Judges’ Order Denying Request to Allow Audio/Video Recording of Meetings with IENG Sary at the Detention Facility, 11 June 2010, A371/2/12.

Concerning the right to be tried in one’s presence, we explained the arguments we had raised shortly before Mr. Ieng Sary’s death, arguing that being forced to follow the proceedings via videolink from a holding cell violated Mr. Ieng Sary’s right to be tried in his presence.  We also explained that the right to be tried in one’s presence relates to competence to stand trial, and explained the factors that are generally used to determine whether an accused is competent to stand trial.15 Case of NUON Chea et al., 002/19-09-2007-ECCC-TC(SC), IENG Sary’s Appeal against the Trial Chamber’s Oral Decision to Deny his Right to be Present in the Courtroom and to Prohibit him from being Video Recorded in the Holding Cell, 18 December 2012, E238/9/1/1.

Lessons from lessons learned

In my post on the United Nations Mechanism for International Criminal Tribunals I discussed how it appears that a trend seems to be emerging to have more ad hoc, hybrid, and regional courts established, thus complementing or marginalizing the ICC. Professor Carsten Stahn gave an account of the various tribunals that are in existence, being formed, or being considered.  It is obvious that the ICC cannot be the only game in town. Indeed, there are many states that have signed on to the ICC but would prefer to opt out or to have additional venues from which to allow cases from their territories to be investigated and tried.  This being the case, there is a high degree of probability that many cases that would otherwise be handled at the ICC (assuming it could get its act together to handle the volume) will be handled either in domestic hybrid courts similar to the ECCC and Special Court for Sierra Leone or in regional courts.  If so, considering that many of these states have judicial systems that are sub-standard, these ad hoc or hybrid courts can be a catalyst for judicial reform. Assuming these courts are well-structured, well-staffed, and well-functioning, a great deal of best practices can be generated that would be directly transferable to the domestic courts.  If these courts are to leave a legacy – other than contributing to the eradication of impunity – it is precisely the transfer of best practices.  Procedural modalities and legal decisions that invoke the ICCPR and articulate how these principles are related to judicial proceedings and the manner in which an accused is treated throughout all phases of the proceedings can elevate the level of justice at the local level.

Though the ECCC experience is patchy, it is still instructive, with lessons to be learned from the lessons learned. Here are just some general lessons which may be useful for other ad hoc or hybrid courts in the making:

  1. The more hybrid or more removed from the domestic procedure a court is, the more the likelihood for and unpredictability. Designing boutique courts with modalities from foreign procedures that are alien to local judges will invariably give birth to a procedure that is either not accepted or not understood by local judges.
  2. If the procedure is constantly evolving, as is the case either through the adoption of amendments to the rules to fill in gaps or through the recalibration of rules that were misconceived, uncertainty arises, thus diminishing the overall image of the courts and the value of its procedural and substantive decisions.
  3. Judges need to fully appreciate the ways in which the procedures that they helped to shape should function. You should not turn a judge-controlled procedure into a pseudo-party-driven procedure but then deprive the defense of the trial tool most valuable for testing the evidence and getting to the truth: the right of confrontation through leading questions.
  4. You cannot expect local judges (in places where there is a weak judiciary) to appreciate the full meaning of the fair trial rights set out in the ICCPR and generally incorporated in many state constitutions or through treaties which the state has adopted, if the judges in the ad hoc or hybrid courts apply such rights unevenly or capriciously.
  5. Transparency matters.  When irregularities emerge (such as those we saw in the ECCC example of irregular witness interviews), the course of action is not to threaten defense lawyers for exposing what would be unethical, if not criminal, conduct, but to deal with it forthrightly and transparently.  I hesitate to even imagine what would happen to a defense lawyer were he or she to write out the questions and answers for a witness, tape record the recitation of the questions and answers, and then present the recording for admission in a trial proceeding as if it were a spontaneous interview.  Yet by doing nothing to the investigator employed by the investigative organ of the ECCC, and threatening the defense lawyer with sanctions, the message sent to the local judges was: this is how to deal with inconvenient truths; if you want to prevent any transparency, threaten the defense lawyers with sanctions for investigating.

When the issue of legacy comes up, the focus tends to be on residual matters such as establishing historical truth or providing historical narrative / record,16 Regarding the court’s goal to provide historical record, UN Assistant-Secretary-General Ralph Zacklin rightly notes: “Criminal Courts exist for the purpose of establishing individual accountability – not … to provide an official history. To the extent that a historical record is integral to individual trials, it might be said that this is incidental to the work of the ICTY, but it is not its primary purpose.” Ralph Zacklin, The Failings of Ad Hoc International Tribunals, 2 J. Int’l. Crim. Just. (2004) 541, 544. See also Richard Wilson, Writing History in International Criminal Trials (Cambridge University Press, Cambridge, 2011). fostering the rule of law and respect for human rights, promoting peace and reconciliation, providing sense of closure for victims and a forum to tell their stories, and so on.  Lofty as these goals may be for legacy purposes,17 For the opposite point of view, see Gregory A. McClelland, A Non-Adversary Approach to International Tribunals, 26 Suffolk Transnat’l Rev. (2002-2003) 1, 2, listing “purposes” of international courts (creating historical record, advancing international jurisprudence and rule of law, identifying guilty individuals to preclude demonization of the entire nation, achieving justice for victims, defendants and the world community) and arguing that these purposes could be more effectively achieved by providing the courts with procedural features borrowed from the civil law/non-adversarial tradition, that are oriented to the discovery of the truth. ad hoc and hybrid courts ought to focus on setting the example of best practices for domestic courts to follow when it comes to some of the most fundamental aspects of a trial: affording the accused the rights accorded to them under the ICCPR.

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Author: Michael G. Karnavas

Michael G. Karnavas is an American trained lawyer. He is licensed in Alaska and Massachusetts and is qualified to appear before the various International tribunals, including the International Criminal Court (ICC). Residing and practicing primarily in The Hague, he is recognized as an expert in international criminal defence, including, pre-trial, trial, and appellate advocacy.

2 thoughts on “Learning from the ECCC experience”

  1. Dear Mr. Karnavas:

    I was at the seminar that was held at the Bar of the Kingdom of Cambodia several days ago. It was most apparent that the panel had much to say and wanted to share vast experiences gathered from the ECCC. On the same breath, the likelihood that a majority of defense attorneys were to not express Article 31 of the CC and Article 14 of the ICCPR can be shared in sentiment.

    Agreed that as a defense attorney one could become very unpopular for standing up to uphold rights of his clients in accordance to rule of law.

    Thanks for blog and looking forward to new ones soonest.

    Thanks,

    Skywon Law Offices & Associates

  2. Certainly the ECCC has improved the scope for professionalism in Cambodia’s legal system, and this may “bear fruit” in future as its recent [more enlightened] entrants gain seniority in the ranks to replace occupants induced under the older flawed system. For now, however, there is little evidence of domestic courts operating to international standards. In particular they do not operate truly independently. This is despite considerable efforts and investments. Indeed there is little impact from well-intentioned past projects such as the judge-mentoring project. That is a main lesson learned and risk from all aspects of development projects in Cambodia. Too often, once the money flow ends; so do the activities. The reporting formalities are completed. People move on….. or revert to old ways. Before long we see no residual impact. It is precisely for this reason that you need initiatives such as this one from OHCHR whose mandate (MoU) needs to be renewed to do so. (The Cambodian Government again in 2016 is reluctant to do so.) Also key players like Mr. Karnavas must continue their commitment to Cambodia and its aspiring young professionals. Reform requires momentum, and that is bound to be lost when the ECCC ends. As I often comment elsewhere, in relation to social services in Cambodia (that unlike Law has barely begun to build a national social work profession), this is still a country that fails its most vulnerable people. Indeed they are still exploited with officials failing to discharge their responsibilities if not complicit. There is much to do yet for “fundamental human rights principles” to be integrated and embraced throughout public service. Let us ensure that whatever gains the ECCC have brought are not simply lost.

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