A Sneak Preview of Khieu Samphan's Public Hearing

The Co-Lawyers for Khieu Samphan requested a public hearing to present their views on the question of violations of the rights of their client they had alleged. The core of the defense's argument in this case will constitute the Co-Lawyers' submission that the fact that their client's case-file has not been translated into French in full has such a grave prejudicial effect on his ability to mount a defense that the only viable remedy at this point is the termination of the proceedings against him.

This will doubtless be a tough argument to win. First, the defense will have to prove that there is in fact a statutory obligation borne by the Court to translate all documents into all three languages of the Court, including French. Since there is no explicit provision to this effect in the ECCC Agreement, the ECCC Law or the IRs, the Co-Lawyers will have to show that through the vague statutory language the legislators intended to create the foregoing obligation. As there is very little available on the legislative intent on the matter and the Co-Lawyers are unlikely to engage in independent research to ascertain such intent, they will have to show that the non-translation of some of the documents into one of the languages of the Court constitutes extreme prejudice against their client. They are likely to find support for this in the ECHR case-law if they look long and hard and cite the relevant provision of the ICCPR. The prosecution will find support of comparable weight in the jurisprudence of the ICTR and the formative years of the ICTY. Either side will have a reasonably compelling case, provided the lawyers on either side do a reasonable quality job, for the PTC will have to step in to break the tie. How will the PTC come out? An easy prediction of this can be made on the basis the Chamber's prior decisions. It will in part recognize some of the difficulties associated with the current linguistic predicament. However, it will end up telling us about the bigger picture of the gravity of crimes which have been alleged for which the Chamber borrowed a paragraph from the prosecution in one of its first decision and has been using as a one-size-fits-all argument to reject many a few contentions proffered.

The defense might be aware of the strong possibility of this outcome already. Why then a public hearing? Because the defense sees it as an opportunity not limited to the resolution of this particular matter, but that of putting the overall ECCC practices on trial. In the Co-Lawyers' own words this hearing will not be limited to the issue at hand but will seek to determine the very "legitimacy and credibility" of the ECCC.

The defense motion has been granted and a hearing has been scheduled for 9 AM, 8 December, 2008. It is an event not to miss.