Gloves come off at Khmer Rouge tribunal

Friday, 20 July 2012
Bridget Di Certo
The Phnom Penh Post

Tempers flared between Ieng Sary defence counsel Michael Karnavas and Senior Assistant to the International Co-Prosecutor Tarik Abdulhak at the beginning of the second day of testimony from leading Khmer Rouge expert David Chandler.

American lawyer Karnavas took Chandler and Abdulhak to task for what he called a “wholly improper” private communication between the two after the closure of proceedings on Wednesday.

Abdulhak fiercely defended the exchange in which he alleged Chandler made a scheduling inquiry and Abdulhak deflected this enquiry to the expert’s minders.

“The counsel for Mr Ieng Sary is effectively seeking to intimidate the witness. He expressed his intention to place [Chandler] under great fire, made off-hand comments about his bias. [This is] a preview of the attack they think they can put him under,” Abdulhak said.

Calls to dismiss Cartwright from Tribunal

02/05/2012
MICHELLE COOKE
Nelson Mail (New Zealand)

Dame Silvia Cartwright is once again at the centre of a controversy in Cambodia, as defence lawyers call for her to be immediately disqualified from the Khmer Rouge Tribunal.

The same calls were made late last year as it surfaced that Cartwright, who is acting as a judge on the trial, had been holding informal meetings with prosecutors.

Defence lawyers for Ieng Sary, one of four people currently on trial, last week made new calls for Cartwright to be disqualified.

Lawyers Ang Udom and Michael Karnavas asked for her to be stood down after they received an email from Cartwright last month, which was not intended for them.

In a document they sent to the Trial Chamber judges, co-prosecutors, defence teams and civil parties, they said Cartwright accidentally sent an email to all staff at the Extraordinary Chambers in the Courts of Cambodia, the special court which was instated to manage the trial of Khmer Rouge leaders.

Ieng Sary team turns up pressure on Duch

Ieng Sary in court room. Photo by Eccc Pool

Tuesday, 10 April 2012
David Boyle
The Phnom Penh Post

Ieng Sary’s defence lawyer, Michael Karnavas, yesterday picked up where Nuon Chea’s defence team left off last week, hammering at the credibility of testimony given by the most potentially damaging witness in Case 002, convicted Khmer Rouge prison chief Kaing Guek Eav, alias Duch.

In an at times testy session of court, Karnavas suggested that gaps in Duch’s first-hand knowledge of events had been filled in by his exposure to Khmer Rouge documents and history books.

He forced the former chief of the Khmer Rouge’s notorious S-21 interrogation facility to concede that, in a statement made to the court’s co-investigating judges, he said he avoided work to the “maximum” and “thus never grasped anything concretely”.

Tribunal debates pardon granted to former Khmer Rouge leader

June 30, 2011
ABC Radio Australia

The case against four surviving leaders of the Khmer Rouge movement has been underway in Cambodia all week.

One of the key issues to be raised in the early parts of the trial has been a controversial amnesty and pardon granted to the regime's former foreign minister Ieng Sary.

Reporter: Robert Carmichael

Speakers: Michael Karnavas, defence lawyer for Ieng Sary; William Smith, deputy international prosecutor; Clair Duffy, observer for Open Society Justice Initiative.

Click here to listen to the audio program (Windows Media)

CARMICHAEL: In 1996 the Khmer Rouge foreign minister Ieng Sary defected to the Cambodian government. His move precipitated the end of the Khmer Rouge movement.

Ieng Sary's decision was timely -the collapse of the Soviet Union in 1991 meant that proxy players in the Cold War struggle, such as the Khmer Rouge, ran out of patrons like the United States. Ieng Sary had seen the writing on the wall.

His defection was sweetened by the Cambodian government. Ieng Sary received a royal pardon for the death penalty that a 1979 tribunal in Phnom Penh had handed down to him in absentia. That tribunal had been established in 1979 by the new Cambodian government just months after it drove the Khmer Rouge from power.

Khmer Rouge case judge 'biased'

Ieng Sary's lawyers say the judge has trampled over his rights

Saturday, October 10, 2009
By Guy De Launey
BBC News, Phnom Penh

Lawyers for Cambodia's former foreign minister have called for the removal of the judge investigating his role in the Khmer Rouge era.

Ieng Sary is charged with crimes against humanity for his part in the deaths of as many as two million people in the late 1970s.

His defence team claims the judge at the UN-backed Khmer Rouge tribunal, Marcel Lemonde, is biased.

The controversy is the latest in a series of problems to hit the tribunal.

'One-sided investigation'

The defence team's claims are based on a sworn statement by a former member of the investigating judge's staff.

Wayne Bastin accused his boss, Mr Lemonde, of instructing his team to concentrate on finding only incriminating evidence.

Under the rules of the tribunal, the investigating judges are supposed to be impartial - and should also seek out evidence which might exonerate defendants.

Mr Bastin admitted that Ieng Sary's defence team had encouraged him to make the statement.

But he insisted that he had enjoyed a good working relationship with Judge Lemonde - and only came forward because he felt "morally and ethically" obliged.

Ieng Sary's lawyers said the investigating judge had "trampled over" the rights of their client.

The tribunal's pre-trial chamber will now rule on whether Mr Lemonde should be disqualified.

It has already rejected two attempts to disqualify court officials on the grounds of bias.

Progress in the case against Ieng Sary and his three co-defendants has been slow.

But closing statements in the trial of a former Khmer Rouge prison chief are expected next month.

KRouge lawyer demands judge [Marcel Lemonde]'s disqualification in Cambodia

Marcel Lemonde

Friday, October 09, 2009
By Patrick Falby
AFP

PHNOM PENH — The lawyer for a former Khmer Rouge leader on Friday filed a demand that the French investigating judge be disqualified from Cambodia's UN-backed war crimes court for alleged bias.

Michael Karnavas, attorney for ex-Khmer Rouge foreign minister Ieng Sary, said the motion was based on allegations that Marcel Lemonde told subordinates to favour evidence showing suspects' guilt over evidence of their innocence.

The tribunal was set up to bring to justice the leaders of the genocidal late 1970s Khmer Rouge regime.

Karnavas said Lemonde was "giving instructions to his investigators to game the process. In other words, to look primarily for evidence that supports the prosecution".

The lawyer said he submitted his complaint based on a statement made by the former head of Lemonde's intelligence and analysis team, Wayne Bastin, at an Australian police station on Thursday.

A copy of the statement obtained by AFP said Lemonde shocked subordinates in a meeting at his Phnom Penh home in August when he told them, "I would prefer that we find more inculpatory evidence than exculpatory evidence".

Under the Khmer Rouge court's regulations, investigating judges are required to be impartial while researching allegations made by prosecutors. Defence teams are not permitted to make their own investigations.

"How is it that (Lemonde) can remain in the position in light of what we know now?" Karnavas said, adding that such behaviour was "outrageous".

Speaking on Lemonde's behalf, tribunal spokesman Lars Olsen said he had no comment on the issue.

Lemonde is currently investigating the court's second case, against Ieng Sary and his wife, former minister of social affairs Ieng Thirith, as well as Khmer Rouge ideologue Nuon Chea and ex-head of state Khieu Samphan.

Heather Ryan, who monitors the court for the Open Society Justice Initiative, told AFP that the defence would probably need to demonstrate systemic bias for Lemonde to lose his job.

"An off the cuff remark made in private -- like what was quoted -- may not be significant," Ryan said.

Under the court's internal rules, Lemonde's previous work on investigations remains valid even if he is disqualified from the tribunal.

Lemonde also met controversy earlier this week when it was revealed he summoned six top government and legislative officials to testify against Khmer Rouge leaders, a move opposed by Prime Minister Hun Sen's administration.

Final arguments in the court's first trial of prison chief Kaing Guek Eav, known by the alias Duch, are scheduled for late next month.

But the tribunal, created in 2006 after several years of haggling between Cambodia and the UN, has faced accusations of political interference and allegations that local staff were forced to pay kickbacks for their jobs.

Led by Pol Pot, who died in 1998, the Khmer Rouge emptied Cambodia's cities in a bid to forge a communist utopia between 1975-79, resulting in the deaths of up to two million people from starvation, overwork and torture.

Ieng Sary’s defense alludes to the possibility of the ECCC’s disappearance

Michael Karnavas, Ieng Sary's defense lawyer (Photo: AN, Cambodge Soir Hebdo)

02 April 2009
By A.L.G.
Cambodge Soir Hebdo
Translated from French by Luc Sâr
Click here to read the article in French

Ang Udom and Michael Karnavas, co-defense lawyers for the ex-KR Foreign Affairs minister, used Hun Sen’s claim made on 31 March and the alleged tribunal corruption to contest the provisional detention of their client.

On Thursday 02 April, Ieng Sary’s defense lawyers talked about a possible disappearance of the ECCC during the appeal hearing against the extension of the provisional detention of their client.

“Two days ago, PM Hun Sen indicated that he was deceived that Japan gave $200,000 to pay the salary of the Cambodian side of the Tribunal,” Michael Karnavas said. “Now, donor countries are hesitating to finance [the ECCC].”

“Everything is tied,” the US lawyer added. “With the budget crisis and the alleged corruption, will we be here in six months? Must they continue to detain Mr. Ieng Sary, knowing that the prosecution will not be able to follow suit?”

Pursuing his argument while asking for an investigation on the tribunal corruption, Michael Karnavas was interrupted by Anees Ahmed, the Indian co-prosecutor, who noted that the word “corruption” does not appear in on the 19-page appeal memo, therefore, the defense cannot raise this argument.

The judges asked the defense to continue and to evoke only medical reasons to justify Ieng Sary’s house arrest, Michael Karnavas preferred letting the co-prosecutor speak.

During the previous hearings, Victor Koppe and Michiel Pestman, Nuon Chea’s international lawyers, had also raised the KRT corruption issue, indicating that such allegations would compromise their client’s right to a fair trial.

KRT corruption a 'cancer'

Former KR foreign affairs minister Ieng Sary's defence lawyer Michael Karnavas (centre) in court during a pretrial hearing. (Photo by: ECCC/POOL)

Monday, 30 March 2009
Written by Georgia Wilkins
The Phnom Penh Post

The tribunal will achieve very little unless graft allegations are dealt with, says Ieng Sary's lawyer Michael Karnavas.

You were critical of the idea of a Khmer Rouge tribunal when it was first being discussed. As a lawyer for one of the [charged persons], do you still believe this is the case?
My primary objection back then - and it still stands today - is the fact that these trials will not deal with certain inconvenient truths, such as the responsibility of all actors involved in the events preceding and following the KR period. It is as if the process is being gamed to view and judge the period and events in the abstract, without any historical context. My belief ... is that a truth and reconciliation process similar to the South African model would be far more beneficial in getting to the historical truth and giving far more opportunities for those involved in these historical events to be heard.

These trials will fall far too short in determining what happened, let alone why these events came about in the first place and how might future generations deal with similar circumstances. Better to put the time, effort and money to better use.

How serious are the allegations of corruption levelled at officials at the ECCC?
If what is being reported in the press is true - and I say if, because we have yet to see the results of the investigations - this sort of corruption and the extent of it, as reported, would be in a class of its own. I think it is imprudent to simply suggest that this only deals with administrative matters and not judicial matters.

Those who are reported to be on the take or having to rent their positions by way of a shakedown mafia style have the ability to impact every level of the proceedings. If one has to pay to keep his position, then how can it be said that this very same person ... will not be subject to other pressures designed to achieve a particular result? If what is being reported is true, then the ECCC is suffering from cancer. The question now is whether there is a willingness to impose a regime of massive intervention to save the ECCC or simply allow things to persist to the point where the cancer becomes terminal.

Some argue that regardless of which individuals at the court have received kickbacks, the UN shares responsibility for revealing ... what these allegations are. How guilty do you see the UN in this saga?
The UN is all too quick to lecture about the rule of law, transparency and the need to have international standards. Regrettably, the UN at times behaves as if it is above what it preaches. The UN - which is an excellent institution and does an enormous service to humanity - is also a political institution and, as such, unfortunately, is overly sensitive to bad news.

In this instance, the UN would be better served if it came clean or risks being further tainted in this ongoing scandal. In the end, the UN may need to make a very hard decision: to stay with the ECCC and continue to fund it and actively participate in the proceedings from administrative to judicial, to cut its losses, try to preserve its name and reputation, and walk away.

You have criticised the UN's double standards when it comes to transparency in the past. Do you see the same pattern emerging here?
Yes. The UN should not be above scrutiny and criticism. The UN may be trying to take the necessary steps to get to the bottom of the corruption scandal, but it does need to be much more forthcoming; the sooner the better, especially given that we are dealing with a judicial institution.

Do you believe the court will leave behind a strong legal legacy?
It all depends on how the trials go! This is an exquisite opportunity for the Cambodian judicial system and legal profession to grow and develop. It is also a good opportunity to showcase a fair and transparent process which could go a long way in building confidence in the judiciary as a whole.

What is your greatest concern about the tribunal to date?
As with any other tribunal where I am involved in defending a case, my concern is whether my client can and will get a fair trial. Let's face it, all of the charged persons before the ECCC have already been found guilty in the court of public opinion. This, one can say, is a natural human reaction, which is why, of course, when an accused goes to court, it is expected that he will be tried by a detached panel of judges who will not be swayed by public opinion or pressures from outside forces - such as donor countries.

Finally, what, in your opinion, will the ECCC achieve?
I am afraid that unless and until the ECCC is cleared of this corruption scandal, very little will be seen to have been achieved at the end of the day. Justice needs to be seen to be done, and thus far, it is too early to tell if that is possible. There is a sense of urgency on the part of some of the donor countries to just get on with the trials, even if the process is flawed or tainted.

The problem with this myopic way of looking at things is that if the process is flawed the results are valueless. I cannot underscore enough that procedural justice is just as important - if not more important - than substantive justice - especially in a society where the rule of law is perceived ... to be a malleable commodity whose shape and form is dependent on situation, convenience and predestined results.

INTERVIEW BY GEORGIA WILKINS

Ieng Sary Defense To Appeal Site Gag Order

By Chun Sakada, VOA Khmer
Original report from Phnom Penh
05 March 2009

Defense lawyers of jailed Khmer Rouge leader Ieng Sary filed an appeal Thursday against a tribunal order for the removal of documents on a Web site deemed confidential to the trial process.

The defense sent a notice of their appeal to investigating judges Marcel Lemonde and You Bunleang, who ordered the removal of the documents from a Web site on Tuesday.

“This morning we filed a letter to the co-investigating judges, to announce to them that we appeal against the order,” Cambodian defense attorney Ang Udom told VOA Khmer Thursday. “After that we will submit a thesis of the appeal.”

The team has 30 days to prepare the full thesis, from March 3, the date of the order, he said.

Tribunal spokesman Reach Sambath confirmed the appeal had been filed at the Pre-Trial Chamber of the court, but he could not confirm a date the chamber would consider the appeal.

The defense team for Ieng Sary, who is 84 and in poor health, has said the orders to remove three documents from the Web site are not warranted and that any information they’ve posted on their Web site was public.

The judges ordered the removal of three documents: an appeal against the tribunal’s refusal to appoint a psychiatrist to Ieng Sary and requests for information about two international staff members of the court.

Judges Threaten Sanctions of Tribunal Defense Team

By Kong Sothanarith, VOA Khmer
Original report from Phnom Penh
04 March 2009

The defense team for jailed Khmer Rouge leader Ieng Sary agreed to temporarily withdraw information from a Web site Wednesday, following orders from tribunal judges over concerns of confidentiality.

Ang Udom, Cambodian defense for Ieng Sary, said the team had decided to remove the content in order to retain good relations with the court.

“Most of what [the judges] raised is incorrect,” he said. “We posted only what was related to legal procedure, that which we expect the public should know, understand and hear and that [the judges] hide.”

In a statement posted on their Web site Wednesday, the defense lawyers strongly disagreed with a court order to remove information posted on the site and said they planned to issue a public response to the “flawed legal reasoning” of the Office of Co-Investigating Judges.

The “confidential” documents sited by the investigating judges are, “in fact, public,” the lawyers said.

Tuesday’s order called for the removal of three documents from the site, the lawyers said: the appeal against the tribunal’s refusal to appoint a psychiatrist to Ieng Sary and requests for information about two international staff members of the court.

In a letter to the defense, investigating judges Marcel Lemonde and You Bunleng ordered the removal of the documents within 48 hours, threatening legal consequences if the order was not followed.

Ieng Sary, 84, whose health is the poorest among five jailed leaders, faces charges of war crimes and crimes against humanity for his role as foreign minister of and senior leader of the regime.

Tribunal spokesman Reach Sambath said his defense team had posted documents that were already banned by investigating judges.

Cambodian genocide court accused of lack of transparency

Wed, 04 Mar 2009
DPA

Phnom Penh - Attorneys for a former Khmer Rouge leader on Wednesday accused judges at Cambodia's UN-backed genocide tribunal of undermining the court's transparency by ordering the defence team to remove legal documents from the defence's website. Attorneys for former Khmer Rouge foreign minister Ieng Sary said in a statement that judges had acted with "flawed legal reasoning."

A court statement released a day earlier said defence lawyers Michael Karnavas and Ang Udom faced sanctions unless the documents were removed within 48 hours from the website on Ieng Sary's defence that the lawyers had set up.

The attorneys said the documents had to do with Ieng Sary's health and the admissibility of a psychiatric assessment of the defendant.

"The Ieng Sary defence will not shy away from making a small but important contribution to public and transparent judicial proceedings," Wednesday's statement said. "Nor will we give in to attempts, deliberate or inadvertent, to limit our right to speak out publicly to protect our client's interests."

The judges called the documents confidential, but the statement argued otherwise but added the documents had been removed from the website.

The website was accessible Wednesday evening, but the documents were not on it.

According to the site's mission statement, it was set up because of the judges' unwillingness to make public "defence filings which may be embarrassing or which call into question the legitimacy and judiciousness of acts and decisions of the judges."

Ieng Sary, 83, is one of five former Khmer Rouge leaders facing trial for their roles in the deaths of up to 2 million people through execution, starvation or overwork during the ultra-Maoist group's 1975-1979 reign.

The former schoolteacher has been hospitalized seven times since being arrested in August 2007 and was declared medically unfit to attend a pre-trial hearing in Phnom Penh last week.

The hearing was adjourned until April 2.

The defence lawyers' statement also accused the judges of inopportune timing after they issued their order after Karnavas had left the country after the adjourned pre-trial hearing.

"By filing this submission at the precise time that Mr Karnavas was on a plane back to The Netherlands suggests that this timing was a tactical decision," the statement charged.

Cambodia: Genocide Court Censures Defense Lawyers

2009-03-04
AP

PHNOM PENH, CAMBODIA: Fresh controversy broke out Tuesday (3 March) at Cambodia's genocide tribunal when judges censured two defense lawyers for posting what they said were confidential court documents on a Web site.

The U.N.-assisted tribunal said the lawyers posted the documents - legal requests and appeals to the court - on a legal Web site for their Khmer Rouge client despite repeated warnings not to.

The tribunal is seeking to establish responsibility for an estimated 1.7 million deaths during the brutal 1975-79 rule of Cambodia by the Khmer Rouge.

Lawyers Michael Karnavas of the U.S. and Ang Udom of Cambodia were accused of breaching court rules "by revealing confidential information," and "failing to act in accordance with the standards and ethics of the legal profession," according to a court order.

The tribunal demanded the lawyers remove the documents within 48 hours and said its six-page order would be sent to bar associations to which the lawyers belong for "any appropriate action."

Karnavas, who with his partner represents former Khmer Rouge Foreign Minister Ieng Sary, denied doing anything wrong in an e-mailed statement, but said they would remove the documents "until such time as this matter is sorted out."

"We have no intention to compromise or interfere with the investigation," Karnavas said. "We will however continue to press for a more accountable, responsive and transparent process."

The tribunal has been beset by controversy, mostly involving allegations of corruption and political interference.

The first trial, scheduled to begin 30 March, is for 65-year-old Kaing Guek Eav, better known as Duch, who headed the Khmer Rouge's largest torture center. It starts nearly three years after the court was established.

Cambodia KRouge defence warned over website

Tuesday, March 03, 2009

PHNOM PENH (AFP) — The defence team of a Khmer Rouge leader has been ordered to remove confidential documents from Cambodia's UN-backed war crimes court from a website, the tribunal's investigating judges said Tuesday.

Lawyers for former foreign minister Ieng Sary "face sanctions" if they do not remove all documents relating to judicial investigations within 48 hours, the court's co-investigating judges said in a press statement.

Ieng Sary, 83, is one of five leaders from the late 1970s regime charged with crimes against humanity and war crimes, but details of the investigation ahead of his trial are kept confidential.

Investigating judges said they needed "to guarantee the protection of privacy of those persons mentioned in the case file and the presumption of innocence, as well as to promote efficiency in investigations."

But the website containing defence filings and letters has also posted a letter to court officials saying that no documents on the site relate to the current investigation of Ieng Sary.

The letter by defence lawyers Michael Karnavas and Ang Udom goes on to allege that judges suppress filings "which may be embarrassing or which call into question the legitimacy and judiciousness of acts and decisions."

Ieng Sary has been rushed to hospital nine times since he was detained by the court in November 2007, and last week had an appeal for release from the Khmer Rouge court delayed after he said he was too ill to appear in court.

As the top Khmer Rouge diplomat, Ieng Sary was frequently the only point of contact between Cambodia's secretive communist rulers and the outside world.

He has denied any involvement in atrocities but he was one of the biggest public supporters of the regime's mass purges, researchers say.

Up to two million people died of starvation and overwork, or were executed, as the 1975-1979 regime emptied Cambodia's cities in its drive to create a communist utopia.

The long-awaited first Khmer Rouge trial started last month when the regime's notorious prison chief, Kaing Guek Eav, better known by the alias Duch, went before the court.

Ieng Sary Hires US Lawyer for Tribunal

By Mean Veasna, VOA Khmer
Original report from Phnom Penh
18 December 2007

Former Khmer Rouge minister of foreign affairs Ieng Sary has hired a US attorney as international representation during tribunal proceedings.

Ieng Sary faces charges of war crimes and crimes against humanity, and will add lawyer Michael Karnavas to his defense team, which also includes Cambodian Ang Udom.

The appointment makes Michael Karnavas the first American defense attorney for the tribunal.

Ieng Sary chose Karnavas from several recommendations by the tribunal, Ang Udom said.

"He wanted someone other than a French national, because there are too many French nationals," Ang Udom said of the choice.

Karnavas, who worked as defense at the international tribunal for the former Yugoslavia, "started work yesterday," Ang Udom said Tuesday.

Communist Ieng Sary chooses a lawyer from the "imperialist US" to defend him

Former Khmer Rouge leader selects US defence lawyer

Tue, 18 Dec 2007
DPA

Phnom Penh - Octogenarian former Khmer Rouge deputy prime minister Ieng Sary has selected a highly experienced American lawyer as his foreign defence attorney, the court set up to try former leaders of the movement said in a press release Tuesday. Michael Karnavas, a member of the Alaska Bar, is Ieng Sary's choice to work with his Cambodian co-lawyer, Ang Udom, to represent him before the Extraordinary Chambers in the Courts of Cambodia (ECCC), the court said in a statement.

Karnavas is president of the Association of Defence Counsel of the International Tribunal for the Former Yugoslavia and has spent the past seven years defending clients in that court, it said.

"Mr Karnavas has practiced as a defence lawyer since 1986. He has also taught trial advocacy skills for the past 18 years and lectured widely on international criminal law around the world," the ECCC said in a statement.

"In 1995 and 1996 he worked in Cambodia with (local legal aid organization) Cambodian Defender Project and the Cambodian Court Training Project," it added.

"Mr Karnavas' application for registration with the Bar Association of the Kingdom of Cambodia is currently being considered by the Bar Council, and so he will act as Legal Consultant in the case until the process is concluded," the statement said.

Ieng Sary was pardoned of genocide in 1996 by former king Norodom Sihanouk in exchange for defecting to the government and breaking the back of the movement, but was subsequently charged with war crimes and crimes against humanity by the ECCC - charges he denies.

Up to 2 million Cambodians died under the 1975-79 Khmer Rouge regime.