The Prosecution and the Trial Chamber Are Bored

Since Jacques Verges’ departure (I mean his physical departure from the Court, not the metaphorical one) the prosecution has been the undisputed time-waster of this Court. This undisputed status notwithstanding, the prosecution still feels the need to show up to defend the title from time to time (it ends up boxing shadows and reclaiming the champion’s belt).

This time it was the seeking of sanctions against certain members of the defense: A sanction was sought against Noun’s counsel Sam Onn Kong for allegedly coaching Khieu’s wife Socheat So on her testimony in open court and a separate sanction was sought against Khieu’s counsel Anta Guisse for writing an opinion piece on the ECCC process for the Cambodian press.

It is hard to tell which of the two is more frivolous.

The first one was nothing more than a mere dispute between the reading of a certain portion of the record by the prosecution and the defense. The member of the prosecution who started the brouhaha was Keith Raynor, an English speaker with no knowledge of Khmer. That particular portion of the record was a testimony given in Khmer. Kong is a native Khmer speaker who read the record in the original Khmer and whose reading differed from that of Raynor who read it in the English translation. One would think that if we were to defer to one of them right off the bat and before any examination of the record was conducted, we would defer to Kong. Raynor, however, decided that such handicaps of his lack of knowledge of Khmer were irrelevant and that he would run roughshod over Kong because this is what Raynor does. I am sure that to the uninitiated Raynor’s outrage might have sounded like an outrage over someone arguing that Earth is flat in this day and age. The nature of the issue in dispute was, however, eons away from the clarity that Earth is not flat. In my opinion, if anyone should have been sanctioned for his conduct during the cross-examination of So, it should have been Raynor for badgering a witness.

The second one was counsel expressing her opinion about the fairness of this process. Patently, her opinion was quite disparaging and even at its mildest was unflattering to the Court. But, what law or ethical standard prevents counsel from expressing an opinion on the fairness of the process? Politicians are prevented from doing so by the principle of ‘non-interference with the administration of justice,’ judges are prevented from commenting on ongoing cases by the principle of sub judice, what standard bars counsel from making public comments? Exactly – none.   

The Trial Chamber correctly denied the prosecution’s requests for sanctions. That said, there are two things I take issue with: (1) last I checked judicial decisions were reasoned – ‘we looked and we did not find anything sanction-worthy’ is not enough (this is the manner in which Swedish courts purport to reason but this Court has done a far better job at reasoning which makes this aberration unfortunate); and (2) the decision reads like it wants to be seen as a shot across the bow but it fails to set clear standards for conduct that is subject to sanction.

All in all, the prosecution raised two nonissues and the Trial Chamber honored them with a decision. Boredom appears to be a tough thing to head off but both entities need to think of the public perception raising and entertaining “issues” like this create next time they grouse about how understaffed they are – they have got time for this nonsense with the current number of staff, they should have time for what the process is actually about without bloating their ranks.