Marcel Lemond: The Internal Rules Will Ensure the Independence of the ECCC

Posted by khmernews on June 7, 2007

Although there have been agreements in principle on the internal rules [in the Khmer Rouge Tribunal], there are some disagreements left to be solved before a plenary session in late April. In an interview with Somnei Thmey Newspaper, Marcel Lemonde, the Khmer Rouge Tribunal co-prosecutor, explained the disagreements over the internal rules and problems which have recently occurred in the Khmer Rouge Tribunal which made the discussion failed.

The internal rules for the Khmer Rouge Tribunal have not been adopted although there have been agreements in principle made between Cambodian and international judges as there is one more thing to do. It is to rephrase the content of the internal rules so that they will be even better. However, the foreign lawyer registration fees which are not included in the internal rules become a new obstacle [for the tribunal]. Public opinions consider the new problem as another obstruction to the adoption of the internal rules which is scheduled to be held on the 30th of April.

Marcel Lemonde, a French co-prosecutor in the Extraordinary Chambers in the Courts of Cambodia (ECCC) and the head of the international judges in the Rules Committee, has given an interview with “Somnei Thmey Newspaper” in order to explain about the deadlocks in the Khmer Rouge Tribunal over the “complicated” internal rules and some issues surrounding the process of the Khmer Rouge trial.

What are the reasons that stall the process of the Khmer Rouge trial?

The complication of the process of the Khmer Rouge trial is caused by technical problem. Both national and international lawyers need harmonization of the different laws, which is a very difficult task to achieve. We should know that international judges are from different countries which employ different legal systems, and Cambodian judges use a legal system which is relatively close to French legal system. As a result, the agreements on the different legal systems are very difficult to get. Sometimes Anglo-Saxon judges, for instance, do not know clearly about Cambodian law, and sometimes some words are used without being translated as “we” do not have the right word in the legal system. So, it requires us to understand the words used whilst it needs time to do this.

Moreover, the tribunal judges took vows in July last year to take their positions in the Khmer Rouge Tribunal, so they cannot prosecute any accused “immediately”. They need to organize infrastructures, materials, and staffs [first]. This is the extraordinary Chambers in the Courts of Cambodia, so it must employ Cambodian law. However, it also needs to have an international standard. This is the extraordinary Chambers in the Courts of Cambodia, so it must obey the sovereignty of Cambodia. There is no reason why we do not obey Cambodian law. In contrast, international judges have a tendency towards the international standard.

Our presence here is to ensure that the trial will be in accordance with “international justice”, so we are trying to integrate Cambodian law and the international law together for the ECCC so that the process of the tribunal will be fair. Through discussions in the recent plenary session, we have agreed on a lot of points and are coming to the approval of the whole internal rules, but we have some more problems to solve.

Do you think the internal rules will be adopted after the plenary session on the 30th of April? 

We should know that in principles we have agreed on the internal rules. So, the only problem left is with the foreign registration fees, which it needs to be solved before we hold the plenary session to rephrase some words [in the internal rules]. We hope that the internal rules will be adopted in late April or early May. After that co-prosecutors will send their initial investigation documents to co-investigating judges to continue the work. But now we are in the internal-rules adoption stage.

If the problem of the foreign registration fees is not solved, will the internal rules be adopted?

If the problem is not solved, there will be a problem. It’s not only about the money, but there will also be retraction from the agreements which have been made in principles on the internal rules already. International judges cannot accept the internal rules which have not been “solved”. It affects rights of defendants and rights to freedom to defense lawyers. If the foreign lawyers do not participate in the ECCC because of high registration fees, suspects and victims cannot have a variety of choices of counsel. While some lawyer associations volunteer to defense in the ECCC without being paid, they need to pay an amount of nearly $5000 to the Cambodian Bar Association (CBA). This problem must be solved before the plenary session to adopt the internal rules.

You always say that if there is no guarantee that jurisdiction is independent and fair, international judges will walk out of the Khmer Rouge Tribunal. Why?

It is easy to understand. To have a just trial, [we] need to have a fair and independent court as the basis. At the moment, Cambodian judges do not have “enough statute”, and the rules for the process of the tribunal still haven’t been adopted, so legally, the independence of Cambodian judges haven’t been guaranteed yet.  As a result, the internal rules for the Khmer Rouge Tribunal are very important to guarantee that the jurisdiction is independent and fair. That’s why the discussions about the internal rules are difficult since we need to guarantee the independence and fairness of the jurisdiction. We have a lot of difficulties. Sometimes, we cannot find solutions for the problems. However, I am happy that Cambodian judges and we have found out rules which can be accepted by both sides. At the present, I think that all the “guarantees” have been gathered in order to show that the jurisdiction is independent and fair.

Some people said that the Khmer Rouge trial is the combination of legal system and politics. What do you think?

I think judges should remain as judges, meaning judges cannot sometimes act as historians or politicians. We are here to fulfill the tasks of the court and these tasks must be completed with justice. This case is special, so there might be politics in it. However, all the judges must rather think about “legal tasks” and the court. They are not here to serve the political interests in Cambodia but to give justice [to victims] without any political effects.

There is a message that international judges come to help Cambodians organize a “real” tribunal, not to give lessons to them. Is this message difficult to accept for you as an international judge? 

This idea does not affect my feeling since I think that international judges must not forget that [why] they are now in Cambodia. All the works bring Cambodian judges experience and capability. We should think that if there are no Cambodian judges, we cannot perform the tasks easy. I think that I will not be able to give justice to Cambodians if there is no support from my Cambodian collaborators since I do not know clearly about Cambodia and its culture. This is a society which is different from mine. So, if there is any lesson to learn, we need to share with each other. International judges have experiences and capabilities to share with Cambodian judges while Cambodians judges are more knowledgeable in Cambodian society.

Can you explain why there is the Khmer Rouge trial? What are the relations to international justice?

The prosecutions on the former Khmer Rouge leaders are held to show the responsibilities of individuals and to prosecute those individuals. The trial is also a chance to public discussions. What people are expecting from the Khmer Rouge trial is the knowledge of what happened 30 years before. We must discuss publicly about the events happened in the past for Cambodians who need clear explanation so that they can continue to build up their futures. At the present, a lot of Cambodian youths do not know about their [country’s] history clearly. People do not talk a lot about the Khmer Rouge issue in their family anymore, and they prefer not to recall this suffering past experience.

Moreover, in the school curriculum that the Khmer Rouge topic has been done away with quickly will affect the future of rebuilding Cambodia in a “new historical page”. First of all, they must explain clearly about what happened in the past and then they can start doing other works. The Khmer Rouge trial is intended to prevent this event from happening again in the world.

Can you tell the difference between the Khmer Rouge trial and courts in Former Yugoslavia and Rwanda?

The Former Yugoslavia’s court was an international court which was held outside the country where the crimes were occurred whilst Rwanda’s court too was different from the court in Cambodia. The Khmer Rouge trial is the combination between majorities Cambodian judges and international judges, and it is held in Cambodia where the crimes were taken place. It gives a lot of advantages to Cambodia. There is not only the problem with the integration between Common Law and Civil Law, but there are also problems with language barrier, translation, and cultures which need to be solved. Although it is a bit difficult, it is very useful.

The Khmer Rouge Tribunal has been started for 7 months out of its whole period of 3 years. The victims are waiting longingly for justice. What do you want to say to them?

I as well as other national and international judges understand the urgent need of Cambodians who have been waiting longingly for justice for 30 years. Justice which need to be given soon. We are doing our best to urge the progress of the trial to be held as soon as possible. I believe that no one wants to provide anymore support. As a result, we announced clearly that the trial can be held in summer (between April and June), and we cannot delay any longer. We know that the main suspects in this case are all very old and may die anytime. At the same time, witnesses are getting old as well while the victims have been waiting longingly for justice. So, it is the time the trial must be held. We will do everything to have the trial begun.

(Informal Translation)
-Extracted from Somnei Thmey. #104. Monday-Sunday, March 26-April 1st, 2007.


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