Who Should be Running for Cover?

Along with their rejection of allegations of participation in financial irregularities (which the defense believes adversely and irreparably affected the accused’s right to due process), the Cambodian judges of the ECCC have issued a threat of legal action to those who “in bad faith […] provoked such a problem”.

Although the judges stopped short of addressing the “instigators” by the name, these persons and institutions’ names are well-known to any tribunal watcher.

The issue of one type of financial irregularities (i.e. kickbacks) was raised by a New York City-based NGO Open Society Institute (OSI) which put itself in the position of an ECCC watchdog very early in the process. The OSI is currently presented in Cambodia by a small office which does most of the OSI's work associated with the Court. The OSI, however, subsequently, made a statement attempting to put to rest -- if not altogether retract -- the question of launching an investigation into the allegations of kickbacks on the Cambodian side of the ECCC. However, by then it was too late for that as the cat was already out of the bag. The allegations were later rejuvenated by a local NGO known as the Center for Social Development (CSD). In addition to these two NGOs and in light of the threat issued by the Cambodian judges of the ECCC, potentially, any NGO which has signed off on any petition circulated by the OSI or the CSD can find itself on the Cambodian judges’ list of “instigators”. Most recently three defense lawyers (whose names are mentioned in the press release of the Cambodian judges of the ECCC) must have added themselves to the list of “instigators”.

Who then should be lawyering up or running for cover? The aforementioned defense lawyers can rest reassured – barring unforeseeable circumstances – that the immunity from prosecution granted to them by the ECCC Law in the exercise of their office will be respected. The OSI and the CSD – along with the NGOs which have supported its claim – are, on the other hand, not statutorily protected from prosecution in the exercise of their office, although they are guarded by the thin shield of freedom of speech. It is also worth noting that the judges do not seem to have expressed the intent of bringing a legal action against the NGOs, but “individuals” who they believe are responsible for “provoking [the] problems”. This may mean that this threat of legal action must be read as having been issued against the staff of the Cambodian office of the OSI, the staff of the CSD and the staff of the Cambodian offices of the local and international NGOs which have supported the OSI’s original claim as individuals, not institutions.

The present conditions in which the aforementioned NGOs will have to work until this matter is resolved one way or the other puts the Japanese government’s “no questions asked” policy of funding of international development (see below on this blog) into perspective.