R. 35 as Last Resort and the Rise of Yiddish

The Noun Chea team has continued with its course of rupture defense strategy which centers on calling Cambodia’s highest-ranking officials to court as witnesses. These officials’ resistance to the summonses issued is not difficult to understand as while they will enjoy the immunity from prosecution (which the Co-Prosecutors have promised every witness before this court), their role in the Khmer Rouge regime will be exposed in open court which has the potential of being very damaging politically.

The law is, however, clear that the parties have the right to call witnesses. What needs to be found out if how big that right is. R. 84 (1) of the so-called Internal Rules of the ECCC states that “the Accused shall have the absolute right to summon witnesses against him or her, whom the Accused was not able to examine during the pre-trial stage”. Of course, the problem with this rule for the defense’s purposes is that for it to exercise the right contained in it the witnesses would have to be “against […] the Accused”. Intuitively, these witnesses would have to be those of the prosecution. The high-ranking witnesses in question were not called by the prosecution and thus cannot be considered to be witnesses against the accused. To what extent does the defense have a right to call its own witnesses? Well, this right is only a shadow of the “absolute right” to summon witnesses against the accused. The contours of this shadow are delineated in Rule 84 (3) which states that “each party may request the Chamber to hear any witness present in the courtroom who were not properly summoned to testify” with the next sentence beginning with “[w]here the Chamber consents” giving the Chamber discretion as to whether to grant the party’s request. This shows that while the “absolute right” exists to call and examine witnesses against the accused, no such right exists when it comes to witnesses whom the accused merely wishes to call but who cannot be categorized as “witnesses […] against the Accused”. The defense is therefore at full mercy of the Trial Chamber on this one. However, an important question to ask is whether the Trial Chamber has untrammeled discretion to grant such requests. The IRs instruct us that the Trial Chamber “shall not call as a witness any person against whom there is evidence of criminal responsibility, except as provided in Rule 28” (R 24 (4)). R. 28 at first glance might look like a run-of-the-mill right against self-incrimination. A closer look will evince the oddity of this so-called right. Routinely, a right against self-incrimination means what one might think it should mean, i.e. not to be compelled to make statements in court that are suggestive one’s guilt. The right only makes sense if that is its meaning. The ECCC decided that this long-established right (the history of which goes all the way back to the common law) would frustrate the prosecution’s effort and re-wrote this right (without any statutory authority to do so) for it not to. The new right is an aberration from the right against self-incrimination as we know it. This “right” permits the Trial Chamber – among others – to compel an answer insofar as it  assures the witness that the answer he or she gives will be confidential and assures him or her of non-prosecution and insofar as it satisfies the following test: (1) evidence is important; (2) evidence is unique; (3) content of potential incrimination; and (4) sufficient witness protection. If the Trial Chamber satisfies itself that the circumstances of the witness pass this test, there goes his or her right against self-incrimination as we know it (or had known it before the IRs were created). The above shows that the Trial Chamber’s discretion to grant the defense’s requests to call witnesses is not untrammeled but it is sufficiently broad and where it is constrained it is not constrained by any right the defense has to this effect but by constraints placed on the Trial Chamber’s discretion by the IRs. These constraints are somewhat inconvenient to the Chamber but they create no rights for the defense. The upshot is very simple: the defense’s right to call witnesses against the accused is absolute but there is no right to call any other witnesses. If the defense wants to call other witnesses it can petition the Chamber and the Chamber can answer with a ‘sorry, can’t do’ without violating any right of the defense (well, any right of the defense under these IRs that is, which have no right to exist and yet do).

The defense, perhaps, understands that, hence is the motion to sanction the Foreign Minister for his attitude towards the Court because the defense is likely to know that the Chamber is going to reply with a ‘sorry, can’t do’ and R. 35 is all that is left. Also, the more high-ranking ministers the defense gets the Trial Chamber to sanction under R. 35 (or at least seriously chastise as it was the case in the case of Prime Minister), the more of a ring to it the defense’s statement will have that the process has not been unfair to the accused at the curtain call.

Perhaps, of greatest significance is the fact that this motion is where Yiddish was used for the first time in this Court’s document. The word ‘chutzpah’ features prominently in para. 21 of the motion to mean audacity or behavior unbecoming (for those uninitiated). Finding Yiddish in a legal document gives me a good chuckle but I am sure that the Cambodian translator was not as amused by it as those of us of a certain persuasion (and for that, thank you, Mr. Rosensweig for putting a little something in this motion for all of us; so far as I am concerned, the jury is still out on whether this is a greater hoot than Ianuzzi’s "citation" of Dr. Dre to illustrate a legal point but it is doubtless in contention (I will be deciding on the winner towards the end of the year and will be sending Channukah gelt to him or her (I am still leaning towards the Dre citation but with the High Holidays upon us, who knows how this is going to go).