The issue of summoning high-level officials of the Cambodian government to testify before a court in a trial fraught with political implications is a hot potato. The Office of the Co-Investigating Judges (OCIJ) and the Pre-Trial Chamber (PTC) have been passing it back and forth for the last over a year. Neither institution wanted to be the one ordering coercive action to compel the 6 highly placed witnesses to appear before the court. In the process the line in the sand between the Cambodian jurists of the both institutions and their international counterparts was drawn (and now is pronounced enough to see from a flying over plane). Statements of government officials which, among other things, told the international jurists of the ECCC to pack up and leave if they were not going to toe the government’s line on the 6 witnesses did not help the confidence of the Cambodian judicial personnel of the ECCC who made a clean break with their international counterparts on this issue and made sure it was seen that way. Throughout this frustrating process the defense – which initiated the original request for investigation involving the 6 witnesses – would not relent. In fact, it kept filing request for investigation after request for investigation and when they were ignored or dealt with to the defense’s dissatisfaction they filed more. This perseverance eventuated in the rule of critical mass working out for the defense. The PTC finally felt compelled to resolve this situation by going beyond handing down a judicial interpretation of the interference rule of the IRs (Rule 35).
The PTC intervened this time by dreaming up 3 standards of proof which it believes undergird Rule 35. Although these standards are not illogical, by PTC’s own admission they do not appear anywhere in the text of Rule 35. This did not stop the PTC from applying them in this case (this is in the good tradition of this tribunal which never balked at the fact that a particular measure it would be about to authorize did not appear anywhere in the text of the law (the existence of the IRs is a glaring example of the powers of the ECCC’s imagination when it comes to reading the ECCC Law and the ECCC Agreement)). The international judges of the PTC (who are clearly the once responsible for the ‘decision of the chamber’ – as opposed to the opinions filed by the international and national judges separately) even managed to find that contempt attracted a criminal sanction while the Cambodian law – which for reasons unbeknownst to me is of no consequence to the PTC – does not criminally punish the interference with the administration of justice (the PTC could have recognized this fact and declared it inconsistent with the relevant international standard but it chose to pretermit Cambodian law altogether instead). After this lengthy legal preamble, the PTC stated that there was no agreement in its ranks on whether the Cambodian government’s encouragement given to the 6 witnesses not to appear before the ECCC was sufficient cause for an investigation.
From here the PTC international judges and their national counterparts went their separate ways. The internationals proceed to chastise the CIJs for not applying the PTC’s definition of Rule 35 and not giving a reasoned opinion as to why they chose not to do so (considering they were enjoined to do exactly that by the PTC). The nationals proceeded by arguing that the word ‘should’ is different from the word ‘shall’ in the degree of imperativeness and that the impugned minister may or may not have spoken in his official capacity or even if he did, his position being inferior to any of the 6 witnesses would not give his words the power of a directive. The two sides disagreed on the fundamental question, i.e. whether there are sufficient grounds to order an investigation into the allegations of interference with the administration of justice raised by the defense. This has brought the essence of this decision to a simple conclusion – there is no decision; there are two opposed opinions but no decision.
Who benefits from this decision? Everyone. The international judges come out emblazoned with a big V for ‘valor’ for having stood their ground and being defenders of the right to a fair trial. The national judges defended the reputation of the government (which is what they are on the court to do; the only people who question that are some international observers while this matter is firmly settled locally). The CIJs – albeit having been lambasted by the international judges of the PTC and having lost some face – will go on undaunted and secure in the fact that they will not have to deal with this issue anymore. And lastly the defense which got the ultimate prize – great grounds for mitigation arguments of the sentences of their clients (which no doubt was the defense sole reason for raising these allegations and carrying them through all along as no reasonable observer ever bought the defense’s argument that they really expected the 6 witnesses to deliver invaluable exculpatory evidence (this said, it must be noted that the defense had every right to demand that these – and any other witnesses – be summoned). Overall, this is a genius decision – there was a lot of bluster and yet nothing happened that would have brought this situation to a breaking point of these proceedings and denied the institutions and persons involved a bit of face-saving and a reasonably graceful exit.