On Pesky Gnats, Interference with the Administration of Justice and a Sensible Approach

Noun Chea’s defense recently submitted yet another interference with the administration of justice motion in a series of such motions stretched out over a lengthy period of time (comments on these submissions go as far back as 2009 on this forum). This time it was submitted to the Trial Chamber (TC) and specifically against Prime Minister Hun Sen.

In this motion the defense sought (1) a declaration that Hun Sen’s statements regarding Noun’s culpability were made in violation of Noun’s right to a fair trial and (2) TC’s condemnation of said Hun Sen’s statements.

There is a long procedural history of this issue which I have no intention of revisiting in this post. The upshot is that the Noun defense has long since made the Cambodian executive’s interference with this Court a significant pillar of its defense strategy. Different levels of national courts have been dodging this issue and the different organs of this Court have given the Noun defense nothing, with the exception of the Pre-Trial Chamber (PTC) which gave the Noun defense a tidbit of encouragement.

This component of the Noun defense’s strategy is doubtless not without merit for a variety of reasons ranging from discrediting this Court as a whole to demonstrating to the rest of the world how farfetched a concept the constitutional separation of powers is in Cambodia. Pushing the envelope further and further on this is a unique opportunity which is only open to foreign lawyers whom the Cambodian executive can disparage all it wants but it cannot terminate their participation in the process and cannot have them disbarred or simply prosecuted for defamation and imprisonment (which the Cambodian executive frequently resorts to suppress the local dissent).

In principle, what the Noun defense is doing should be done, even if it only ends up having some measure of interim relief for Noun with the possibility of final relief being a mirage which was made clear in the Supreme Court Chamber (SCC)’s judgment in Case 001: it is Cambodia and things happen according to Hun Sen’s plan, not the law, and, just like the house in the casino business, Hun Sen always wins, even if for a while there it looks like justice might prevail (this feeling is an illusion to which those of us without years of well-cultivated cynicism might be prone) (in Case 001, for a while there, it looked like Duch was up … but the house took every penny he had, his pants and his shirt, in the end and threw him out on the curb).

The above was to establish that I am, as such, not adverse to what the Noun defense is trying to do on the interference with the administration of justice front. It is their methods that my quarrel is with.

First, the defense refuses to look at the entire span of Hun Sen-Noun Chea history. If looked at, even in the most cursory manner, this history will evince one highly pertinent to the circumstances of the present motion thing: Hun Sen has been calling Noun Chea all sorts of names for the last 34 years (1978-2012). For 21 (1978-1999) of those years Hun Sen and Noun Chea were leaders of the opposing factions of the Cambodian civil war and there is no doubt in my mind that they would have ordered one another’s execution had either of them been captured by the other. The mutual venom of the radio broadcasts of the two factions verges on poetic and deserves a read in its own right. During their reconciliation in 1999 upon Hun Sen’s victory in the civil war and Noun Chea’s surrender, Hun Sen did not withdraw his characterization of Noun Chea but merely said something about picking up a stick, digging up a hole and putting the past in that hole. This by no means and under no definition translates into a retrieval of Hun Sen’s position on Noun Chea’s role in Cambodia’s mass crimes. What’s restating that going to do that saying it for 34 years, day in and day out, hasn’t done? The Noun defense tells us that there is something about fair trial and the European Court of Human Rights (if I ever develop arthritis it will be from typing “please, spare us the ECHR jurisprudence; just because you are familiar with it and it is easy to research isn’t reason enough to use it”; gentlemen, for the love of God, lay off of it; it is as healthy for these proceedings as eating leftover pizza for breakfast). To this effect, the defense cites a French case. I do not need to analyze the particulars of this case to know one thing: last time France had a civil war was … way before the establishment of the ECHR (no, I don’t want to hear about La Resistance and all the 3 German trains it derailed). This means that no ECHR case has the same factual basis as this: the leader of one side of the civil war presiding over the country the courts of which are trying the leader of the other and vanquished side of the civil war who had declared the vanquished side’s leader’s criminal culpability during the war and continues declaring it now that the war is over and the prosecutions have begun. The end, credits roll. One might say that, yes, it is only par for the course that the defense argues on this legal basis because it works for them. I have no doubt that this is what they think but it really does not: an honest argument needs to be put forward to get the TC where the defense wants them. This argument has to acknowledge the fact that Hun Sen’s anti-Noun Chea vitriol is not new and has been with us for the last 34 years and that there is hardly anyone in Cambodia who has not heard it (I have spent years in this country and I have never met a Cambodian who was not sure about how Hun Sen feels about Noun Chea). It is an exercise in cretinism to argue there is a Cambodian judge on this Court who had doubts about how Hun Sen felt about Noun Chea and who needed Hun Sen’s Vietnam speech to have that confirmed. Enough breath has been wasted on this tale and it is time the defense put a kibosh on it and developed a sensible approach which might have the effect of the TC running for cover. This approach should include the constitutional separation of powers and the presumption that the judiciary is independent and should be able to be immune from the executive’s harangues. As it is not (and there isn’t any lack of paper to show that), this is the foundation for a solid argument (but, gentlemen, while you are at it, do us all a favor and drop the Montesquieu references; we get it that you are familiar with the Enlightenment legal writers and that you are impressed and so were the drafters of the US Constitution and a number of other post-Enlightenment documents; we get it, let’s move on).

The TC has to develop a reasonable approach of dealing with Noun defense’s interference claims. Treating the defense like a pesky gnat won’t work: the defense knows they have a point, the TC knows they have a point, we know the defense has a point and the TC knows that we know the defense has a point. The only sensible approach here is to cut the BS and develop a sensible approach. This issue won’t go away (the defense has demonstrated its perseverence and resilience by going at it for over 2 years now) and yelling at them in court is unprofessional and only shows the TC’s weakness, not its strength (please, spare us the nonsense of "the determination of guilt or innocence is the sole responsibility of the Trial Chamber"; it is the worst argument since "we just followed orders": it is legally unsound and ethically embarassing and, speaking plainly, just garbage and I am fully confident that the better jurists of the TC are fully aware of that).