Phnom Penh (Cambodia). 04/06/2009: Michiel Pestman, co-lawyer for Nuon Chea, during a press conference at the FCC, reveals security problems and governmental interferences at the ECCC
While Duch's trial is set to enter its seventh week on Monday June 8th, pressure on the Extraordinary Chambers in the Courts of Cambodia (ECCC) to address allegations of corruption and political interferences has kept growing. In the latest stir, a press conference was given by Michiel Pestman, the international co-lawyer for Nuon Chea, former Brother Nº2, on Thursday June 4th in Phnom Penh. He denounced a “security incident”, which occurred on the previous day, concerning a confidential letter originating from his office, which was allegedly taken out unbeknownst to him. He also expressed concern over the recent appointment of Helen Jarvis at the head of the Victims Unit as well as interferences of the Cambodian government in the judicial process, whilst also raising the issue of corruption that allegedly affects the national side of the internationalised tribunal...
Political manipulation and corruption, an explosive mix
“Ominous signs of political manipulation by the Cambodian government and a repeated failure to tackle corruption continue to plague the Khmer Rouge Tribunal,” noted from the outset the Open Society Justice in its last press release dated May 27th. It is a “toxic mix for the court,” its director, James A. Goldston, commented. Indeed, some senior officials recently expressed public warnings against additional indictments, further to the five existing defendants. Following Prime Minister Hun Sen, they argued that this could favour a return of the war in Cambodia. Moreover, the press release indicated, “[I]t appears that the government of Cambodia is attempting to block the investigating judges from interviewing certain insider witnesses who hold current positions of power.” Also, it was added, since the publication in August 2008 of a confidential report by the United Nations (UN) Office of Internal Oversight Services (OIOS), which detailed complaints of the court's staff paying kickbacks to political overseers, the Phnom Penh government has “refused to cooperate with the United Nations to create a process for court staff to report corruption.” With no safeguards in place, this policy “encourages a culture of silence.”
Co-Prosecutors and co-Investigating Judges asked to explain themselves
In their turn, on June 3rd, the international co-lawyers for the former ideologist of the Khmer Rouge regime, Michiel Pestman and Victor Koppe, sent separate letters to the tribunal's co-Investigating Judges and co-Prosecutors on a “Possible Breach of ECCC Agreement and Law.” They asked the two Cambodian magistrates – Chea Leang and You Bunleng – whether they have received any instructions from any member or official of their government with respect to their work at the court, while they must be independent in the performance of their functions according to established standards. They also recalled the international magistrates – Robert Petit and Marcel Lemonde – that “any UN official at the ECCC are ethically obligated to inform the parties of any violations by their Cambodian colleagues of the Agreement and/or Law, in particular those provisions which seek to ensure a fair trial.” According to them, there is evidence suggesting that the government opposed the hearing by the co-Investigating Judges of King-Father Norodom Sihanouk or Prime Minister Hun Sen.
“Co-Investigating Judge Lemonde keeps repeating that he will leave the day he can no longer fulfil his functions properly. If he knows there were government interferences in the work of his Cambodian colleague, he must inform the parties about it,” Michiel Pestman insisted. Asked for a reaction, Marcel Lemonde said he would respond to the letter from the lawyers, but not through the media.
Demands for the disclosure of a UN-OIOS investigation on corruption
Also, the Dutch lawyer welcomed the fact that his request for the disclosure of the UN-OIOS report on corruption within the court was joined by the lawyers for civil parties group 1 in the trial of Duch. As a reminder, Michiel Pestman and his two international colleagues – believing that such a situation could jeopardise the right of their client to a fair trial –, had filed, in their names, a complaint with the Municipal Court of Phnom Penh on January 9th to request that it examines the allegations of corruption. The complaint had finally been dismissed by the prosecution a month later. The three lawyers had then referred it to the Cambodian Court of Appeal and they are now waiting for the General Prosecutor to request a copy of the report from the UN. Late February, they had written to the UN Secretary-General, Ban Ki-Moon, to request a “confidential” access to the report of the investigation carried out by a UN-OIOS team. On March 27th, they had filed a request with the co-Investigating Judges to ask them to investigate on the allegations of corruption, to which the magistrates had replied on April 3rd that this did not fall within their competencies.
In their joint response , dated May 29th, to defence appeals against the co-Investigating Judges' order denying the request for investigative action regarding allegations of administrative corruption, the co-Prosecutors agreed with the defence team for Nuon Chea, observing that “the credibility of this Court's process would be enhanced by a release of the OIOS Report and a timely and credible resolution of this issue.”
This was also relayed by the lawyers for the civil parties. On May 11th, they filed a “Public Request that the Trial Chamber facilitate the disclosure of an (sic) UN-OIOS report to the parties”, which existence they considered to be “directly relevant to the proceedings” in trial of the former director of detention centre S-21. They argued that the publication of this report after the closure of the proceedings may “expose the trial judgment to claims on the part of the Accused and others that corruption within the ECCC rendered the trial unfair, or that corruption constitutes an abuse of process warranting a permanent stay of the proceedings against Duch.” The lawyers called for the parties to be able to make written submissions on the content of the UN-OIOS report. Whilst also “expressing full confidence in the independence and impartiality of all the judges constituting the Trial Chamber,” the lawyers for civil parties group 1 “fear the slowly corrosive effect such allegations may have to undermine the work of the ECCC and prejudice the integrity of proceedings unless matters are properly resolved in court now.” Ten days later, the Trial Chamber ordered the parties to present submissions on the impact of the publication of the UN-OIOS report on the conduct of a fair trial in Duch's case.
All hopes are now turned towards the Trial Chamber, especially as everyone has kept in mind the words of Neo-Zealand judge Cartwright, who had publicly stated that “these historic trials, which are so important for the people of Cambodia, must not be tainted by corruption.”
Donors' softened stance
Dampened by the corruption scandal, the tribunal's donors had dug in their heels and UNDP, the UN agency which manages all funds affected to the ECCC, had decided, in mid-2008, to freeze payments to the Cambodian side of the court – which functions on two budgets, national and international, managed separately). Very recently, although no progress was registered regarding the issue of alleged corruption, donor countries have started to backtrack. For instance, Australia recently asked UNDP to release the funds it destined for the Cambodian side, while Japan, once again, rescued the Cambodian government by granting them 4 million dollars in order to enable the tribunal to function until the end of the year.
The Cambodian government annoyed by the scandal
On the day following the request of the lawyers for civil parties group 1, that is on May 12th, in a boomerang game, the spokesperson for the Cambodian Council of Ministers, Phay Siphan, announced that his government was investigating allegations of ill practices involving the court's international staff as well as civil party lawyers, which could discredit the tribunal... The following Monday, on May 18th, the appointment of Helen Jarvis at the head of the Victims Unit, in replacement of Keat Bophal, former member of the Office of the High Commissioner for Human Rights, after her resignation, was made public. Until then, Helen Jarvis had been in charge of the Public Affairs for the tribunal, and had also been appointed ethics monitor for the court. Previously, she had been an adviser to the Cambodian deputy Prime Minster Sok An.
Helen Jarvis targeted by criticism
On Wednesday June 3rd, as he was leaving after visiting his client, walking in the ground separating the cells of the detainees from the court building, Michiel Pestman's eyes were caught by a document that had ended up in a ditch. Looking closer, he recounted, he discovered that it was no other than a confidential document originating from his office. “I cannot explain myself how the document ended up there […] but we referred it to the security office. An investigation was opened. […] From now on, we have to be very careful about what we write on paper. […] The document left our office without our authorisation.” It is a draft letter to the attention of Helen Jarvis, in which Nuon Chea's lawyers raise their concerns regarding her recent appointment at the head of the Victims Unit and her possible lack of impartiality.
Indeed, some ten days before, they discovered a letter posted on the Internet in the name of the Australian Leninist Party Faction, dated from 2006 and containing “worrying” statements and signed, among others, by the new head of the Victims Unit. The lawyer quoted an excerpt: “We too are Marxists and believe that 'the ends justifies the means'. […] In time of revolution and civil war, the most extreme measures will sometimes become necessary and justified. Against the bourgeoisie and their state agencies we don’t respect their laws and their fake moral principles.” The lawyer said that he did not challenge the right of Helen Jarvis to have personal political opinions, but he was concerned that she signed a document saying she does not have to follow the rule of law. “In our letter,” the Dutch lawyer detailed, “we therefore ask her if she considers that the ECCC are a public State agency that is bourgeois...” Yet, he reminded “all the parties must follow the rules established by the tribunal,” and concluded that the Australian was not the “appropriate” person for such a position. Contacted by Ka-set, Helen Jarvis did not wish to make any comment.
Cambodian civil society's call for a resolution of the corruption issue
Echoing the concerns of Michiel Pestman, who considered the future to be very uncertain and specified that it was not the steps taken by his team, but corruption, that risked jeopardising the judicial process, CHRAC, a coalition of 21 local NGOs defending human rights and the rule of law, urged, in a joint statement published on Thursday June 4th, for further action to protect the ECCC from any corrupt practices. However, the civil society representatives welcomed the “recent steps by the government of Cambodia to address the corruption allegations and to reopen dialogue regarding the creation of a credible Ombudsman Office tasked with monitoring and resolving allegations of corrupt practices,” which they argued “must be fully independent and credible.”