The International Civil Party Co-Lawyer recently lashed out at the defense for picking and choosing the pieces of international legislation which suited them. Even for this process which has seen more than its fair share of entertaining statements from all quarters, this one stands out.
The International Civil Party Co-Lawyer’s statement was doubtless made out of frustration with the avalanche of motions and the deluge of objections which came from the defense which sparked a full-scale evidentiary rules debate. Shaming the defense for wasting the court’s time will not go far because the defense is not in the least ashamed by what they have done and are doing: they see it as doing their due diligence. What the International Civil Party Co-Lawyer needs to get comfortable with is the fact that the defense is not a part of the truth-seeking expedition of this court. The International Civil Party Co-Lawyer (just when they thought hiring a French lawyer would help the transition) may have confused that with the function of the Co-Investigating Judges and, of course, the bench but the defense is not of their ilk. Perhaps, this understanding is crucial to the participation in this process. While the defense (particularly the Noun Chea and Ieng Sary counsel) can be seen as suspect of abusing the process by filing motions which have no other possible purpose than to show that the defense is doing its due diligence and proffer itself as an example of good lawyering, it would be ludicrous for the Trial Chamber to entertain the International Civil Party Co-Lawyer’s argument that the defense is being selective of which pieces of international legislation it chooses to rely upon. I imagine that the remedy the International Civil Party Co-Lawyer sought was for the Trial Chamber to direct the defense to base its arguments on both the international legislation which supports their arguments and that which speaks against them. Would the International Civil Party Co-Lawyer care to show us the part of the Cambodian Criminal Procedure Code (CPC) which permits the Trial Chamber to make such an order? I hope the International Civil Party Co-Lawyer has a creative and sophisticated interpretation of combined multiple provisions of the CPC which -- through intricate trapezoidal diagrams -- conflate into a solid supporting platform for this statement and that this statement was not a mere result of too many cups of coffee to stay awake through the prosecution’s ‘we are all in this together’ speech.
The Ieng Sary defense strikes again. It simply cannot keep itself out of the news for as much as a day. Mr. Karnavas, Sir, does this look like the Hague to you? I understand that the architecture of this court’s building leaves as much to be desired as the architecture of the building in the Hague you work in. But, did you notice there is a plaque on the building with some weird Sanskrit-based language and there is no fountain that no one has ever seen work in front of the building? Before we get to the indicia of reliability but may I try to assist you with the indicia of difference? This is not the ICTY and this is not the States and there is no common law here. The CPC is not suggestive of or coterminous with 3,000 other procedural rules and it means exactly what it says unless it is silent on the matter. Art. 321 of the CPC tells you everything you need to know, i.e. “in criminal cases all evidence is admissible”. Which part of “all” needs further explanation? I know it is disappointing (it is kind of like finding out that playing Stairway to Heaven backwards won't get you Satan's message to the world) but life is full of them. There is one caveat which is the “unless it is provided otherwise by law” and there is no law in this case which provides otherwise because the law we wrote on the matter in this country is clear and it bars you from accessing international law for reason of that clarity. No, it is not because this is Cambodia and it by definition has an inferior legal system; the Swedish criminal procedure code has the same provision and it is applied exactly how it is written (at least last I checked). We all are thrilled that you have personal knowledge of some ICTY cases and that you can clubber the unsuspecting International Civil Party Lawyer who does not and cut her ego to size. It is fun to watch and thank you for this entertainment, Sir, but we are trying crimes against humanity here not trying to find thrills and gags for when The Life and Times of Tim is not on. Why don’t we let Steve Dildarian do comedy and let this court do law and fact?
Now, under art. 321 the court considers “the value of the evidence submitted for examination following the judge’s intimate conviction”. A bit of unfortunate translator’s language here but what the clause meant to say is that the prima facie test is applied by the judges in the Chamber. This is not a public procedure, nor is it open to the parties for contestation (here’s how it is meant to work: the judges open the documents on their computers – or in the Cambodian context look at the paper – and say ‘ah, okay, looks good enough’ with ‘enough’ being the operative word). When the clause says that the court considers “the value of the evidence”, it refers to probative value, not prima facie value as it never was the intent to have the court belabor its finding of the prima facie value. Yes, Mr. Karnavas, Mr. Smith can introduce any evidence and have it found of prima facie value without a hearing and regardless of your objecting (which no one will find out about because no one is required by law to ask; you might file a motion but no one is required by law to read it), even if that evidence sat under Youk Chhang’s mattress (is the color of that mattress the reason you want him in court? otherwise, does anyone contest that the search for exculpatory evidence for your client has been as much a part of DC-Cam’s mandate as the search for exculpatory evidence for the Nazis has been a part of the Holocaust Museum in D.C.’s mandate? Mr. Smith, where are you on this?) for the last 15-some years. And yes, it is the prosecution’s job to meet the standard of proof requisite to impute this evidence to your client but he does not need to meet the beyond reasonable doubt standard simply to have it shown to your client (to which your client can say ‘I do not remember this document’ or something to this effect). Due diligence is one thing, but let’s not get carried away here.
Lastly, any party can present any evidence at any point in the proceedings which is framed in the following clause of art. 321: “the judgment of the court may be based only on the evidence included in the case file or which has been presented at the hearing”. Mr. Smith, do note the disjunctive ‘or’ in this clause that means that Mr. Karnavas – who is spot-on here – can introduce any evidence whenever he wants to.
The Trial Chamber has to recognize that parties should be allotted time to present their views but this does not mean allowing the parties to prattle and throw tooth picks and leftover food at one another until the morning coffee wears off or they turn off the air-conditioning for the day at the court. The Chamber has extensive powers to exercise control over the proceedings and should use these powers to cut out all the attempted grandstanding when the language of the law is clear: “art. 321 says … the interpretation of which of art. 321’s language are the parties contesting? none of it, okay, moving on, the court calls Witness A 1”.