Opinion: Due Process Not Negotiable, Even in Khmer Rouge Tribunal

On May 15, 2017, The Cambodia Daily published an opinion piece by Michael G. Karnavas.  The piece appears below:

The Cambodia Daily

Opinion: Due Process Not Negotiable, Even in Khmer Rouge Tribunal

MAY 15, 2017

By Michael G. Karnavas 1   Michael G. Karnavas is a criminal defense lawyer. He was the co-lawyer for Ieng Sary at the Extraordinary Chambers in the Courts of Cambodia, and is now Meas Muth’s international co-lawyer in Case 003 at the ECCC.

Last week it was revealed that the Co-Investigating Judges (CIJ) of the Extraordinary Chambers in the Courts of Cambodia (ECCC) confidentially informed the parties in Cases 003, 004, and 004/02 and the Office of Administration that they were considering invoking what amounts to a nuclear option: a permanent stay of the proceedings due to a lack of funding. Submissions were invited.

Court-watchers and “experts” immediately weighed in with claims of political interference. Judge Martin Karopkin, a reserve Judge of the Trial Chamber, joined the fray. Disquieting as his remarks may be, I admire Judge Karopkin’s honesty.

Judge Karopkin remarked that it was a “misuse of judicial power to declare [the document] confidential,” since issues of funding (as if this document only pertained to funding) are “purely administrative” and thus a matter of public record. He also criticized the CIJ for denying the parties their due process by issuing “not a negotiation but a judicial ultimatum,” and “not allow[ing] for any discussion of the key issue—whether the dismissal of cases is a measured and reasonable response to the alleged financial crisis,” actions that fail to advance the “goals of an open and free society.”Rather than whisper into the ears of journalists or comment through proxies (yes, that is done), Judge Karopkin boldly chose to dispense with the prime directive of judicial etiquette: thou shalt not speak ill of thy fellow judges. And he did not mince words.

Unfortunately, his observations and conclusions are wobbly. The CIJ stumbled by issuing this document as confidential, and thus not available for public scrutiny and discussion. Understandable. In the civil law system adopted by the ECCC, everything done by the Office of the Co-Investigative Judges is deemed confidential until determined otherwise. So, the decision to issue the document as confidential was most likely reflexive, as opposed to calculated.

But considering that the issues discussed in the document relate to the very real existential crisis at the ECCC, it was only a matter of time before the contents, if not the document itself, would be leaked to the press.

The optics of attempting to keep the document confidential has encouraged suggestions of judicial cover up. Judge Karopkin hints at this when he claims that but for the leaker the public would have been kept in the dark. More hyperbole than reality.

The ECCC is a sieve when it comes to keeping confidential matters confidential. Nonetheless, Judge Karopkin’s assertion of “misuse of judicial power” to keep the document confidential is unwarranted. Judge Karopkin—a U.S. judge from a common law system—may not fully appreciate some of the quirky civil law ways of doing things, many of which can appear nonsensical or antiquated.

In any event, now that the genie is out of the bottle,[2  The CIJ have issued a press release in response to the media attention.] and with uninformed or ill-motivated rumors, opinions, innuendos and pronouncements rampant, the CIJ are well advised to make the document public.

On to the substance.

… Judge Karopkin is not alone in criticizing the CIJ. Some say that there is political interference afoot. Others claim that the funding issue is not as dire as the CIJ make it out to be or that the funding will be secured only when the CIJ get on with issuing closing orders so the trials can begin. And the latest rumor I have been asked to confirm is whether the donors have declined to be more forthcoming with donating funds because of their belief or perception that the International Co-Investigating Judge is deliberately dragging out the investigations for no good reason.

Utterly unfounded.

I agree with Judge Karopkin that being handed what effectively is a fait accompli and then being asked to make submissions is a fruitless exercise; unless this is just a naked power play, given that the deadline makes timely assurances of full funding virtually impossible. But honestly, why should this be so shocking? In many instances where the parties are asked for submissions, the judges have already made up their minds. Yet they go through with the charade of letting the parties imagine they can influence that which has been pre-ordained. So, before we get our knickers in a twist, some perspective—please.

Why, some ask, issue an “ultimatum”—if that is what it is—without first seeing whether the donors are willing to provide the CIJ the funding needed to complete their work and worry afterward about funding for trials of the remaining cases, assuming indictments result from the eight-year (and counting) investigations?

Tempting as it may be to argue you can’t finish if you don’t start the trials in Cases 003, 004, and 004/02, it is rash and illogical to assume that if the CIJ indict, the donors will pony-up. Call it donor-fatigue, donor-remorse, donor-impatience, donor-indifference or donor-escape. Whatever. The fact is that for the past three to four years the ECCC has been working at a relatively efficient clip with ever-fewer staff, fewer resources, greater insecurity and greater anxiety.

Yet securing the requisite funding has been a persistent challenge, and never more so than now. Imagine some essential staff being on very short contracts, some month-to-month. Never mind the national staff who in the past had to suffer the indignity of working without pay for months. Hardly sound retention strategies.

For some time now, the ECCC had been forced to borrow from U.N. funds until donor-pledged funds are in-hand and available. Subventions (as this process of borrowing from Peter to pay Paul is called) are supposed to be for exceptional circumstances. Yet it has become routine practice. And for how much longer it can be sustained is anyone’s guess.

It has been apparent for some time that the road ahead for the ECCC is extremely complex and costly. The logistics involved are consequential. The time to fully complete Cases 003, 004, and 004/02 is, by my estimation, five years minimum, including appeals.

At least one additional, if there are not two, fully staffed Trial Chambers will be required (since one cannot try these cases—potentially two to three different trials—at once). An additional courtroom if not two will be needed if the trials are conducted simultaneously to avoid further delays. And the dirty little truth is that the price tag for justice in Cases 003, 004, and 004/02 is at least an- other $150 million, on top of the $262 million spent thus far, with debatably little of consequence to show for it. Meanwhile Case 002 is far from over. The bloom is long since off the donors’ love affair and the thrill to continue funding the ECCC is gone.

No one wants to admit it, but the U.N. and the donors do not want the ECCC to continue beyond Case 002. To properly bring the remaining to a conclusion, while honoring the U.N. guarantee that the ECCC will meet the highest human rights standards, is too tall an order, too high a price, too arduous a task. No one can accuse the Cambodian Government of being enthusiastic champions of these final cases going forward. But at least it has been open about its opposition—too open at times. The U.N. and many of the donors share this sentiment, but just cannot bring themselves to come clean and admit it. The preferred approach is to scapegoat and blame-shift.

What is there to negotiate, as Judge Karopkin muses? With whom? The parties have no leverage or negotiating power.

Making submissions is not a form of negotiations. Besides, judges do not negotiate with parties. And what is there to negotiate with the U.N.? What is there to say that has not been said? Absurd to think the U.N. does not see the financial challenges of the ECCC, or that it does not recall that it was a party in setting up the ECCC and thus a co-guarantor for its operational costs.

Why set up a court if there is no intent to properly finance it? Should the onus be placed on the judges to dilute the international standards and circumscribe the rights of the accused because of budgetary shortfalls? Should the quality and extent of due process afforded to the accused at the ECCC be proportionate to what the U.N. or donors are willing or able to contribute? Should justice a la carte be the gold standard expected of the CIJ?

Crudely put, the CIJ are saying to the U.N. and to the donors: put up or shut up. Or, as the saying goes, put your money where your mouth is. Or, in answer to the notion that as the indictments flow so will the donations, don’t start what you can’t finish.

The CIJ are not just laying the groundwork for indictment, but developing the entire record from which the case will be tried, which means they must uncover and explore evidence that favors the accused or mitigates any charges that may ultimately be brought. This is a process that is far different from the adversarial investigation and charging with which some of the critics may be familiar.

Failure to guarantee that the CIJ fulfill this mandate thoroughly and with fidelity is itself a denial of due process. It is hardly a bombshell revelation that when resources are short, the balance of their allocation rarely (never) tips in favor of the accused.

It is unfair, unjust, and unacceptable to complete the investigation and issue closing orders where all or some of the accused may be indicted only to then deny them their day in court and thus deny them their internationally recognized human rights of fair trial and appellate proceedings.

The U.N. guaranteed these rights to all suspects, charged persons and accused when they set up the ECCC. It is fundamentally unfair and a violation of human rights to have the indictments hanging over any of the accused in Cases 003, 004, and 004/02 for some indefinite period until the U.N. and donors secure the funds for the proceedings to start, with no guarantee that they will be conducted expeditiously, without interruption, and to full completion. Or worst yet, to just have the indictments hanging over them and their families like a black cloud in perpetuity.

What the CIJ have done is attempt to shame the U.N. and donors for their failure to abide by the assurances they made and obligations they aimed for when setting up the ECCC. There is nothing to negotiate. If anything, a violation of due process will inexorably flow were negotiations to ensue, as how little or to what extent the rights of the accused can be compromised and trampled on while maintaining a fig leaf of legitimacy. Hardly a reasonable or measured solution.

The CIJ deserve praise, not criticism. Being on the thin edge of the knife, they have thrown down the gauntlet: either the U.N. and the donors come up with the required funds for them to complete their work and for Cases 003,004, and 004/02 to be fully adjudicated in accordance with international standards, or they will issue a permanent stay, which, for all intents and purposes, amounts to a dismissal of all charges for the named accused in those cases.

This is what judicial courage looks like. Those who seek to ascribe improper motives are operating from the place of invalid information, or their own suspect motives.

© 2017, The Cambodia Daily

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1 thought on “Opinion: Due Process Not Negotiable, Even in Khmer Rouge Tribunal”

  1. Thanks for that interesting post Michael , you state clearly that:

    ” I agree with Judge Karopkin that being handed what effectively is a fait accompli and then being asked to make submissions is a fruitless exercise … ”

    End of quotation :

    Yet , one may argue , that if such stay , is not clearly limited in time , and doesn’t put or dictates clear dead line , than , it may amount or interfere with : ” Double jeopardy ” right of the accused . If we deal with clear dead line , and short period , then it may be reasonable . But , if suspended for unlimited period , then , the accused have the reliability right , and right for certainty that it is all over , and to proceed on with his life , put everything behind , and open new chapter ( like the philosophy of ” statutory limitation ” ) . Otherwise , one defendant , is , or can be subjected to arbitrary harassments of authorities ( Police , or judiciary ) . One week , two weeks , one month , how long ?? Until the end of time ?? and due to caprice of donors ?? Financial transactions ??

    This is a substantial argument …… at least , to determine a dead line .

    Thanks

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