At the outset, let’s dispense with a potential claim that the ECCC’s Defense Support Section (DSS) never phrased its present intervention in the terms as direct as those of the title of this article. Yes and no. No, the DSS never used any of these words in either of its motions to the Supreme Court Chamber (SCC). Yes, this is exactly what the DSS meant to do, whether it phrased it as directly as I did or not. It is evident from the following: (1) DSS goes to the SCC to inform the Chamber that “the Co-Lawyers for the Accused have not addressed a number of issues of law raised on appeal by the Co-Prosecutors” (by which DSS insinuates incompetence on the part of the Co-Lawyers (DSS means to say that the Co-Lawyers did not identify the full scope of the issues they needed to counter); (2) DSS believes they can do a better job identifying these issues and providing counterpoints for them than did the Co-Lawyers; (3) when the SCC rejected the DSS’s request for leave to submit an amicus curiae brief to rectify the inadequacies of the Co-Lawyer’s submission, DSS filed another motion this time requesting that an appeal for amicus curiae briefs be made to third parties (by this, the DSS appears to be saying that if the SCC will not let them submit an amicus brief, they want the Chamber to grant leave to do so to someone else; the DSS’ persistence in this case is indicative of their perception of the level of inadequacy of the Co-Lawyers’ submission and the harm it can do to the convicted person (Duch); (4) this is the first time the DSS has taken the role of fixing a Co-Lawyers’ motion I am aware of.
This attempted intervention of the DSS, whatever its outcome might end up being, is not a matter confined to a single accused or a single case and must be understood as such. What has happened here is an intervention of a purely administrative organ of the Court into a substantive matter within the competence of other persons (Co-Lawyers) who have been hired to deal with this – and other – matter based upon their proven (at least theoretically) competence to do so and based upon the rules chiseled out by the DSS. Under the law which established the ECCC there is no express provision which establishes an organ such as the DSS. There are, however, provisions to this effect enshrined in the Internal Rules (IRs). My reading of these provisions is the same as that of the Co-Prosecutors, i.e. there is not a single provision in the IRs which can be reasonably interpreted as giving the DSS authority to file motions with the Chambers or, put another way, deal with substantive (by ‘substantive’ I do not mean ‘substantive v procedural’ but broadly encompassing all matters other than administrative and financial) issues of cases. The two relevant motions of the DSS, I infer that the DSS’ reading of its mandate spelled out in the IRs is the same as mine and the Co-Prosecutors. As such, there is nothing in the law (it is arguable to what extent the IRs constitute a law but I am including them in this definition of ‘law’ here regardless) which gives the DSS authority to intervene the substantive aspects of the proceedings. However, what is the DSS supposed to do (it is staffed with lawyers some of whom have backgrounds beyond court administration) if it sees a motion filed by Co-Lawyers so manifestly inadequate that it will doubtless harm the accused or convicted person, if not cured? By law, essentially nothing. It should stand and watch Co-Lawyers do the job they were hired to do, hope that these perceived omissions are elements of a newfangled legal strategy (and once their complexity is revealed will become apparent to all qualified observers), and only intervene in matters of administrative nature as the Chambers are the guarantors of the rights of the accused under the IRs. Commendable as the DSS’ commitment to the rights of the accused has been revealed through the present action to be, the DSS must be restricted to its administrative functions as once an exception is made (and this is as good a situation to make an exception for as it will probably ever be) it will be impossible to put the cork back in that bottle. While the Chambers are theoretically the gatekeepers of the quality of lawyering in the proceedings before them, the adversarial nature of these specific proceedings entails a contest where the weaker loses and the stronger wins (in my opinion, not only did the prosecution have a factually more defensible position, they acted significantly superior to the defense as a group of lawyers and investigators in Case 001; the Trial Chamber – not could any other court -- could do nothing to guarantee that the quality of lawyering is equal (equally good or equally bad) on the both sides). Some might consider this situation to be something that cannot and should not be controlled by anyone once reasonable requirements for the hiring of lawyers have been met. Others might believe that there are particularly grave situations which are so inimical to the rights of the accused or convicted person that someone should inveigh against them. DSS falls within the latter category and saw intervention as part of its mandate in spirit, rather than that in letter. This situation doubtless shows that the IRs are inadequate to deal with this matter and must be amended at the next plenary so that they can.