Reflections on the Cambodian Defenders 25 years later: from humble advocates to legal trailblazers   

Late Saturday night, July 13, 2019, NagaWorld Hotel ballroom, Phnom Penh, Cambodia. Tables full, food and libations flowing, laughter, music, Khmer traditional dancers, speeches, clinking of glasses, cake-cutting, idle chatter, happy faces, kind words. It’s the graduation party for the newly-minted lawyers having passed the last of their exams after finishing an intensive Bar course. As I look around, I wonder if any of these young Lawyers can fathom a Cambodia with virtually no lawyers, no Bar Association – or BAKC (Bar Association of the Kingdom of Cambodia) as it is known, when at best there were some trained human rights advocates working for NGOs, offering their services to indigent suspects and accused in some parts of Cambodia. Probably not. But yes, there was such a time, and it was not that long ago.

Michael G. Karnavas, 2019 BAKC Training (Photo by Alexandra Smith)

Mingling, toasting, posing for photos and selfies, I worked the room, enjoying the festive crowd. I was invited to attend this gala, having been one of the last trainers of the Bar course. My usual repertoire for BAKC is training on trial advocacy skills and ethics. The sessions are full days, intense. Since Suon Visal was elected as BAKC’s President, I have been clocking lots of hours of training – pro bono. Even before becoming Bar President, Suon Visal was committed to practical skills training, recognizing that budding lawyers need to be armed with the essential skills of the profession, especially since virtually all legal practitioners in Cambodia are generalists, and are also expected to assist BAKC in providing legal assistance to indigent criminal suspects and accused.

Suon Visal and I go back to 1994, my first trip to train Cambodian students. He was one of the 25 defenders of the USAID-funded Cambodian Defender Project (CDP) established by the International Human Rights Law Group, that I trained. He is a real success story, but then so are the rest of that exceptionally courageous, dedicated, and eager group of advocates. Take for instance Ang Udom, he was selected by Ieng Sary, the foreign minister during the Pol Pot regime, to represent him before the Extraordinary Chambers in the Courts of Cambodia (ECCC). To my great good fortune, he brought me into the case as the international co-lawyer. We continue working together, defending Meas Muth in Case 003 at the ECCC. Others have gone on build successful law practices, while others still continue to do God’s work – defending and representing the poor and dispossessed in criminal and civil matters.

I have always enjoyed these BAKC graduations banquets, but this night was special. It didn’t dawn on me at first. But as I started talking to Karen Tse, one of the original three young American legal eagles (Francis James and Joyce Bang being the other two) who set up the CDP, I noticed familiar faces from 1994, and it was only then that it occurred to me that it was 25 years ago, almost to the date, when I first arrived at the door step of the CDP, volunteering to do a week or two of trial advocacy training.

I was on sabbatical from the Alaska Public Defender Agency. Burnout. As I was traveling through Asia, I heard of this noble cause, of the CDP training human rights advocates to be criminal defenders. By that point, I had already been training lawyers and law students, and I had sufficiently mastered the fundamentals to be able to impromptu deliver just about any lecture from case analysis to appellate advocacy. So, the idea of dropping by Phnom Penh for a training of would-be defenders, seemed too cool, too exotic, too inviting to pass up. My travels would just take what I then thought would be a short frolicking detour and then be on my way. How wrong. Since then, my association with Cambodian defenders and lawyers has been an amazing, and sometimes zany, adventure. Not to mention, there is something about Cambodia, the people, the culture; once you are exposed to this troubled yet magical land for any length of time, to borrow from Capt. Louis Renault in Casablanca, it is the beginning of a beautiful friendship. Cambodia has become my adopted country. And while I came in a sense to change Cambodia, Cambodia has changed me – for the better.

The one or two weeks I had planned on volunteering, turned into four weeks of intensive lecturing, demonstrating and interactive participation with actual cases. I would go on to write a trial advocacy manual for the CDP once I got back to Alaska. Nothing special, just the basics, which, incidentally, has served me well since in my practice and in trainings.

Karen Tse happened to be in Phnom Penh because of her NGO, the International Bridges to Justice (IBJ), an NGO that has taken the CDP model to a global level. What the CDP was to Cambodia (setting up offices throughout Cambodia to defend indigent accused), the IBJ is to the globe, focusing not on fancy, high-profile human rights causes, but rather providing humble public defender/legal aid serves to the neediest, the world over. The IBJ was also cosponsoring the Bar training as well as presenting lectures and workshops, and in fact it was the IBJ that had reached out to me and extended the invitation to train on trial advocacy skills, as well as on the rights of the accused and the duties of defense lawyers.

Back in 1994 there was no BAKC. In fact, there were no lawyers to speak of. As for Cambodia’s legal system, it was still transitioning to the French modeled civil law system that existed prior to the Democratic Kampuchea / Khmer Rouge regime (1975-1979) which abolished the legal system, in total, throughout Cambodia. With the fall of the Khmer Rouge, a Vietnamese communist model was introduced during the Peoples Republic of Kampuchea and later the State of Cambodia, that was then transitioned to or supplemented by the criminal procedure (a temporary user-friendly adversarial quick-fix) introduced during the two-year period of UNTAC (United Transitional Authority in Cambodia). After the 1993 democratic elections, the newly elected National Assembly opted to have Cambodia return to the pre-Khmer Rouge French modeled civil law legal system. Curiously, for some time leading up to the adoption of a new criminal procedure by the National Assembly, all of the then existing procedures remained applicable to one degree or another – predictably resulting in legal uncertainty.

I recall seeing photos of criminal trials during the State of Cambodia period reflecting what can only be characterized as show trials. Large spectating crowds looking on, too large for ordinary cases, with looks on their faces betraying a desire to anxiously get back to whatever they were supposed to be doing. And I was told by a judge who presided over criminal cases at that time, that the two lay judges were there to basically ensure that every accused had to be convicted; trials were more about potential mitigation to the harsh sentences judges were encouraged to impose. As for defense lawyers, there were none. Family members could step into the breach, but with a 100% conviction rate, the best they could do is plead for mercy.

By the time I arrived, except for a rare few, judges lacked any real schooling or training. Simple civil cases such as breaches of contract were treated automatically as criminal cases – fraud or theft. Trials were a charade. Justice, if you want to call it that, was swift (once you finally got to the court), rough, and callous. But who could blame the judges – reality as it was (and remains), required walking a tightrope – dispensing a semblance of justice while not ruffing up any fathers of anyone within the criminal justice chain, the connected, or the powers that be.

Getting the Cambodian Ministry of Justice to accept the CDP defenders to appear in the courts across Cambodia at a time when the legal profession did not effectively exist, and with no organized Bar to oversee the licensing, training, monitoring, and disciplining lawyers, was as challenging as convincing judges that defenders could and should play a vital role in ensuring a suspect’s or accused’s fundamental fair trial rights, and for just resolutions based on the proper assessment of the facts and application of the law. In other words, what the CDP was proposing, in no small measure, was to challenge the status quo, to admit sunlight into the criminal justice system, and, in addition to serving as advocates, to monitor the criminal justice system. Considering the then-mindset of those holding the levers of justice and the all-encompassing transition Cambodia was undergoing at the time, the CDP was embarking on nothing short of a Herculean task.

There were other NGOs which were going in this direction and many more would follow, but the CDP was the pioneer, breaking trail, leading the charge. Some 25 years later, it is easy to overlook the impact the CDP has had over the years. How three young American lawyers trained 25 human rights advocates to be defenders who would go on to make a real difference to thousands of Cambodians and would make a real contribution to the legal profession as it was being resurrected, evolving to where it is today with Suon Visal at the helm of the BAKC.

Ang Udom (2nd fr. left), Suon Visal (6th fr. left), Karen Tse (5th fr. right), Michael G. Karnavas (3rd fr. right)

As the festivities were coming to an end, I took in the celebratory mood with some pride, having played a small part in the training of the CDP defenders, many of whom were still there chatting with their fellow defenders from 1994. As I was leaving, I made a point to approach Karen Tse, to give her, Francis James and Joyce Bang credit for the vision, perseverance, and ingenuity in making the CDP the success it turned out to be. Departing I told her “all of this started with the CDP, 25 years ago. Who would have thought?”

Today the CDP is a shadow of what it once was, but its spirit lives, thanks to Karen Tse through IBJ’s tireless and committed defenders who continue the good fight day in and day out. And not just in Cambodia.

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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.

3 thoughts on “Reflections on the Cambodian Defenders 25 years later: from humble advocates to legal trailblazers   ”

  1. Thanks for this, Michael, it really brings back the memories. And no incidentally, I think you will find my forthcoming book, Extraordinary Justice: Law, Politics and the Khmer Rouge Tribunals, to be of some interest. It covers much of the same ground you cover here… and then some.

  2. Time flies, can’t believe 25 years have flown by. Good to see you’re still fighting the good fight, Michael.

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