Analysis of the Civil Parties' Disclosure Request

The Civil Parties filed a request to the Trial Chamber to request a disclosure of a report of the United Nations Office Internal Oversight Services (‘UNOIOS’) which reported had found improprieties in the functioning of the Cambodian judges of the ECCC. The Civil Parties argued that the issue of allegations of improprieties goes to the core of the ECCC proceedings and “not only undermine the principle of finality of these proceedings but render elusive the justice and closure for which the victims of these proceedings have been waiting”. Let us parse this argument. First, considering the flamboyance of the language of the statement it is extremely unlikely that it was written by one of the local lawyers of the Civil Parties. Nor is there a good reason to believe that this sentence is a translation from Khmer as one would doubt there are terms such as ‘the principle of finality’ and ‘rendering justice elusive’. This means that this statement is a brainchild of one of the foreign lawyers of the Civil Parties. The nationality of the author, of course, would not matter if there were a credible study based on a sound methodology on whether Cambodians as a group wanted this tribunal to take place. No such study was ever conducted. Instead, the decision to establish this process was purely political and was given airtime by the government as part of the conciliatory effort between the then two prime ministers; the process was quickly pushed to the backburner and was from there carried on by a group of foreign advisors and academics with a stake in the issue. There was never a study – leave long a plebiscite – on whether this process should be carried out. This makes asserting that “victims [who] have been waiting” an opinion of a foreign lawyer who needs more time to develop a good grasp of the history of this process. Second, referring to all or any persons who lived during Democratic Kampuchea as ‘victims’ before the conclusion of the process and before the court is given a chance to determine whether the Democratic Kampuchea regime was criminal, in whole or in part, is an exercise in jumping the gun which perpetuates the prejudice proliferated by the government of People’s Republic of Kampuchea (‘PRK’) throughout the 1980s which got significant hold of Cambodian society as a whole. Referring to the participants of these proceedings as ‘civil parties’ or ‘alleged victims’ might be a more fair way of determining their present status. Three, it is not clear at this stage how closure will be attained by people who were not seeking it through this process and by seeing five high-ranking officials stand trial, and particularly in a culture which has no concept of ‘closure’. Fourth and perhaps most important, if proven, how does corruption in the hiring process prejudice the process to the extent where it will be seen as unfair by ordinary Cambodians? It is not a secret to any Cambodian or Cambodia watcher that corruption is rife in this country at every level. It permeates every pore of the body known as the Cambodian government and exists at such low levels as obtaining government-issued application forms and stretches all the way to the levels at which land concessions are granted. Allegations were voiced of bribes given to enter the School of Judges and Prosecutors last years. To a lawyer these will remain allegations until proven as criminal acts in a court of law; to a recent law graduate with aspiration for the bench or a prosecutor’s office, they are nothing but clear-cut reality. Considering the present climate of corruption in the Cambodian government, it will be a long time before ordinary Cambodians are convinced that merit is the basis of hiring and not considerations such as money and family connections. If this is the perception of how hiring is done in the Cambodian government, why would this perception change for this court? It wouldn’t. This said, even if the allegations of impropriety in this court are proven before a disciplinary tribunal, will that necessarily mean that the judges hired thanks to these improprieties are necessarily unqualified or less qualified than others who could have been hired had the hiring process been transparent and legal? Not necessarily. Is merit the only consideration for hiring a judge at the other international and hybrid tribunals? The answer is a resounding no. We have seen considerations such as perceived bias toward national and religious groups and otherwise political statements, geographic distribution of jobs within the UN system, affirmative action, and such other considerations which stray far from the judge’s ability to decide a case competently costing qualified candidates their chance at a job in an international tribunal. How are the latter considerations different from the consideration of money or family connections? One is legal, the other one isn’t. True as that might be, to an accused or a civil party it all boils down to the question of whether the judges uphold his or her rights of which the right to a fair trial is one. So far, the tribunal watchers have given the judges a clean bill of health on this which is ultimately all that matters. After a fair amount of hue and cry it is time the Civil Parties – and the others involved in the tribunal – returned to their daily duties and spend more time doing investigative work and lawyering than giving Jacques Verges’ ‘rupture strategy’ credence. Besides, it is important to understand that the only real way this process will be perceived as unfair by ordinary Cambodians is if the court finds one or a number of the accused not guilty or gives them very short sentences. Ordinary people do not understand the complex criminal procedures, nor do they care to understand them; they simply want the court to validate, once again, what they think of as the truth about the regime.