Your money, or your standards

Ky Tech, CBA President (Photo: KS, Cambodge Soir)

By Cat Barton
Phnom Penh Post, Issue 16 / 07, April 6 - 19, 2007

Despite an escalating media war between the international judges at the Extraordinary Courts in the Chambers of Cambodia (ECCC) and the Cambodian Bar Association (CBA) over the seemingly paltry sum of $4,900, experts say that it is legal careers not dollars that are at stake.

"The argument is not about victims at all," said Youk Chhang, director of the Documentation Center of Cambodia (DC-Cam). "It's about lawyers' careers. Sometimes I wonder who this court is for right now."

Chhang said victims, who have been waiting 25 years for the trial, are confused and exasperated by the new delay and the lack of clarity as to its causes.

"It will be hard for us to explain this to the public," said Thun Saray, president of the NGO Adhoc, which runs outreach programs on the ECCC. "But this is not a problem of money."

On April 3, the international judges cancelled the court's scheduled plenary session because of the CBA's insistence on fees totaling $4,900 per year for foreign lawyers. The cancellation of the plenary session is another setback for the adoption of court's internal rules. The trial cannot proceed until the rules have been adopted.

Meanwhile, observers and victims are learning about the dispute through a series of official press statements and personal announcements, said Peter Foster, United Nations Assistance to the Khmer Rouge Tribunals spokesman at the ECCC.

"Other than the original offer of $4,900 we have received nothing official [from the CBA] on any issue at all," he said. "It is only coming through the media."

ECCC observevrs say that by allowing the dispute to play out in the press, the CBA has given itself an advantage. The international officials have to employ abstract legal principles to explain why, if they were to succumb to the demand by the CBA, they would compromise the trial's ability to meet international standards. The CBA's can stick to more easily explainable technical and financial arguments to defend their position.

"This ECCC is first and foremost a court of public opinion," said Theary Seng, director of the Center for Social Development (CSD). "The public's confusion and anger [about the delay over fees] is a by-product of effective political spin."

The CBA is taking a dominant a role in the ECCC which should be a self-contained chamber, "extraordinary" before it is "in the courts of Cambodia," said Seng.

"This feeds into the perception that the CBA is a tool of politics," she said. "This perception is understandable in light of its close affiliation with the ruling party."

It is unlikely the judges, who have warned that "the window of opportunity is closing quickly," would delay for petty bickering over finances as the CBA's statements have implied, said Seng.

"Of course the ECCC or UN can afford the fees," she said "The issue is whether this is a court to be administered in accordance to genuine standards of justice or to be manipulated and controlled by politics via the Cambodian Bar Association, an ancillary actor in the realm of the ECCC process."

The CBA's insistence that the $4,900 bar fees are in accordance with domestic law is a symptom, not a cause of problems, said Foster. It is untrue that the ECCC is arguing over money, when there are far more important principles at stake, he said.

"The bar fees limit the freedom of choice for people to be represented as they see fit," he said. "Though the fees seem small, they are at least ten times higher than any other international tribunal has charged. So the pool of lawyers willing to work at the trial will get smaller and smaller."

If the number of available lawyers shrinks, the possibility a defendant will argue they were not afforded council of choice rises, said Foster.

"The danger is that half way through a case the defendant stands up and then says I was not allowed to choose my lawyer freely," he said. "This could cause everything to collapse."

The CBA have responded to such concerns with technical and legal arguments to support their position.

"The fees are a legal requirement," said Uk Phourik, CBA Council Member on April 4.

The public statements of Ky Tech, CBA president, have sought to portray the standoff as an attempt by wealthy foreign lawyers to avoid paying the bar fees required by domestic Cambodian law, and he has refused to acknowledged the far-reaching impact high bar fees will have on the ECCC as a whole, said Basil Fernando, head of the Asian Human Rights Commission.

"These are not commercial lawyers coming to Cambodia to practice on commercial issues," he said. "This is an international tribunal and the justification for foreign lawyers to participate is to ensure international standards of justice are met and to ensure the party being represented will get proper legal representation. Under these circumstances, the CBA should either waive these fees or they should be ignored."

In the past, the CBA has made their opposition to foreign lawyers clear. Although this is undesirable in most circumstances, it is totally unacceptable in this kind of hybrid trial, said Fernando.

"This is not just a trial about individual atrocities," said Fernando. "It is the whole of Cambodian history that is being judged, so the highest level of conduct must be expected from all who participate. From all perspectives, the CBA's position is unacceptable and unethical."

Although progress at the trial has recently been mired in a mixture of legal, financial, and public relations battles, all is not lost, said American Ambassador Joseph Mussomeli.

"It is not a train wreck," he told the Post on April 2. "It's not going to derail but it is on wobbly tracks."

The problem is that such wobbles deter potential donors, such as the American government, from funding the trial, said Mussomeli.

"We're not prepared to move forward and request from Washington that we provide direct funding because of the continuing problems," he said. "We've been waiting literally for years to gather assurances so we can recommend to Washington to fund, but the last few months have cast a pall over this idea."