(An edited version of this commentary was published in The Phnom Penh Post, June 8, 2012 entitled, Justice Must Be Re-cast)
First, Ta An could not have a better international lawyer representing him in Richard Rogers, who not only has deep experience in international law but in Cambodia. I remember his commendable work as the legal consultant for the Center for Social Development, when I was its director beginning in 2006, before he went on to become deputy and then chief of the ECCC Defense Support Section. Ta An will get his fair trial rights protected—whatever that means at the ECCC—if Richard can help it—or, for that matter, in the high-powered game of international criminal law as we know it now.
And it is to this latter point that I want to focus my next comment: fair trial rights in the politically high-stake, professionally high-powered, institutionally high-priced, individually high-minded and self-righteous international sphere of mass crimes and genocide are illusory at best, nonsensical at worst.
The international criminal law system is broken and in need of reform, starting with how we employ fair trial rights.
National Criminal Justice System
The set of fair trial rights as we know them, employed in the international sphere of mass crimes and genocide, are imported wholesale from the national court system.
The first problem of this wholesale import of fair trial rights is one of rationale. In a domestic criminal justice system, immense measures for the protection of the individual—“fair trial rights”—are marshaled to counter-balance the massive resources of the State.
In this regard, the rationale is to provide the defending party (oftentimes an individual not versed in law) with rights to shield against the potential abuse by the prosecuting party, which is the State in the common law, and the imperial investigating judge in civil law, with overwhelming resources (including high legal technical expertise) and state power.
The raison d’etre for each fair trial right principle then should be viewed through this lens of resource/power imbalance concerns.
In arming the individual with all these immense, substantial fair trial rights in the domestic justice system, the rationale is best reflected in William Blackstone’s maxim when he wrote that "the law holds that it is better that ten guilty persons escape, than that one innocent suffer." According to this maxim, no one ought to be punished, lest an innocent person be punished.
The rationale and concerns do not have the same resonance for former head of states and military leaders now finding themselves as defendants of international tribunals.
The second problem is related to the first in that the set of fair trial rights privileges the defense in the international sphere. These rights may be reasonable in the national court system, but the wholesale import of them is a slap in the face of victims when these rights are employed in cases of mass crimes and genocide.
To state the obvious, the case in a domestic justice system is infinitesimally simpler in scope and issues, with little or no political/geo-political considerations and the victims are limited to a few individuals. The cases of genocide and war crimes are of a different nature and scope not adequately, and at times not appropriately, addressed by the domestic fair trial rights principles.
By way of illustration of the inadequacy and inappropriateness, let’s look at a few fair trial principles, which have been accepted as an article of faith in international criminal law, within the context of the Extraordinary Chambers in the Courts of Cambodia.
Presumption of Innocence
In April 2011 in this newspaper, I had raised the illusory relevance of the well-known presumption of innocence principle in the ECCC.
I had lodged a complaint alleging serious criminal charges against Meas Muth and Sou Met of Case 003 and Ta An, Ta Tith and Im Chaem in Case 004.
I was then, am now not the only victim, but one among millions with the same right to make public allegations about our injuries and claims.
The problem with mass crimes is that they produce majority victims in the minority public with the right to speak publicly about their claims. And their claims are based not only on personal experience but substantiated by the countless testimonies of other victims and innumerable, legitimate publicly available information which have accumulated over the years, e.g. in Cambodia, the 35 years of the publications by world-renown historians and researchers, in well-respected international newspapers, journals, books, films.
Then, the ECCC Public Affairs—an international lawyer—accused me of “mere speculation” with “no basis”, and violating the presumption of innocence principle. Basically, besides mistaking our role as “victim”, he was asking me and other victims to suspend our reason, logic and knowledge of these materials relevant to our cases as well as the substantiating testimonies of other victims who make up the majority of the population.
The problem with the wholesale import of the presumption of innocence principle from the domestic sphere into the international context is one of confusing the right of mass victims with obligations of the court officials and minority unaffected public; this is not a simple murder in the local neighborhood by which the presumption of innocence principle is to be viewed through a very narrow local lens without incorporating the countless distinguishing factors associated with mass crimes of international renown.
The equality of arms principle states that defense counsel and the prosecutor should have equal status. At the ECCC, serious allegations have been raised against the collusion, even if only the perception of it, of Judge Silvia Cartwright and International Prosecutor Andrew Cayley, in their ex-parte communication.
The right to an independent and impartial tribunal has been egregiously violated too persistently, consistently, continually, and well-documented and spoken about that it’s unnecessary for me to dwell on it here.
The right to legal counsel is glaringly violated for Meas Muth, Sou Met, Ta Tith, Im Chaem (and Ta An, until recently but then not without obstacles as Richard’s appointment is being blocked by Office of Administration and the Defense Support Section).
The right to call and examine witnesses has been ignored, in particular for the defense in its constant calls for political leaders, (Chea Sim, Heng Samrin, Pol Saroeun, Sim Ka, Henry Kissinger, Vietnamese leaders) to give testimony at the ECCC.
The right to remain silent is not appropriate for international war criminals as we want them to speak. One of the goals of international criminal justice is reconciliation and the creation of a fuller historical record. As such, it requires the testimony of these political and military leaders. Moreover, their testimonies work to satisfy to a degree the victims' demand for justice. The domestic rationale for this principle does not hold in the international sphere.
Roles of Victims as Civil Parties
The vision and legal incorporation of victims as a party in the criminal proceeding is commendable and should be retained for future international criminal proceedings. But it is greatly, greatly in need of restructuring and reform. One of the necessary reforms is to abolish the Lead Co-Lawyers scheme which is legally nonsensical. I will reserve more comments on the role of victims as civil parties for a follow-up commentary in the future as it requires more space than this article can provide.
In sum, the debacle that is the ECCC should provide the necessary pause for all of us to rethink international criminal law, in particular the relevance of the wholesale importation of domestic fair trial rights into it.
Since the Nuremberg Trials, and the re-explosion of international law in the 1990s, we have enough experiences and lessons now to rethink and re-structure the international justice system to deal better with mass crimes to reflect and realize the beautiful language and ideals of justice, reconciliation and victim participation.
Why? Because the existing system is unworkable and many times nonsensical, as the principles and concepts culled from the domestic justice system do not fit the scope and issues unique to mass crimes in the international sphere.
Theary C. Seng is an American-trained lawyer who is the founding president of the CIVICUS: Center for Cambodian Civic Education, and the Association of Khmer Rouge Victims in Cambodia