Andrew F.
Diamond, J.D., in his personal capacity
Fall 2009 Legal
Associate, Documentation Center of Cambodia (DC-Cam)
Introduction
The
Extraordinary Chambers in the Courts of Cambodia’s (ECCC) scheme for
survivor participation has been hailed as groundbreaking and
unprecedented, due in large part to the recognition of certain
survivors as “civil parties” who were to be treated as full parties
to the proceedings. Substantively, however, this scheme did not even
survive the first trial intact.
With an eye towards the second case, for which pre-trial proceedings
are already underway, the Chambers are seeking to further restrict
the role of civil parties and their lawyers, particularly in light
of the large number of survivors seeking civil party status. They
are doing this through the revision of the ECCC’s Internal Rules
governing civil parties. The Rules and Procedure Committee is set to
discuss the draft Rules during the first week of December and, if
accepted, the plenary will decide on adoption shortly thereafter.
According to an ECCC Plenary Session press release, the proposed
rule changes will focus on “promot[ing]
greater efficiency in trial management.”
Although almost all observers recognize that better civil party
organization and management is essential for the much larger Case
002, the revised Rules should not be used as a Trojan horse, where
in the name of judicial management, the rights of civil parties are
undercut to such an extent that they could no longer in good faith
be properly considered “parties” to the proceedings. In such an
instance, to gut the role of civil parties and their lawyers while
not acknowledging that fact would seriously undermine the very
credibility of the Chambers itself.
Under Cambodian
law and in other civil law jurisdictions, persons qualifying as
“civil parties” are afforded certain minimum rights, rights that
both survivors and their lawyers must also have before the ECCC. If
the Chambers fail to retain these rights under the revised Rules,
the ECCC will not only distort the precedential value of its
survivor participation scheme for future internationalized
tribunals, but also mislead the survivors about their role in the
proceedings. This legal sleight of hand would be unconscionable as
these participants are survivors of one of humanity’s worst crimes.
The Legal Rights of Civil
Parties
The ECCC is
the first internationalized tribunal to explicitly provide for civil
party participation. “Civil party” is a legal term of art. Although
the basket of rights it includes varies among jurisdictions, a
tribunal cannot just declare certain victims to be “civil parties”
in the proceedings while not affording them the concomitant rights
that accompany this role. Notably, while the International Criminal
Court (ICC) provides for enhanced victim participation, its scheme
purposefully does not rise to the level of civil party
participation, as victims before the ICC are not recognized as
parties to the proceedings. Additionally, the Special Tribunal for
Lebanon, which is heavily influenced by civil law, provides that
“[a]lthough [victims] do not have the same right as the parties
civiles (private complainants) of the civil law system – such as to
seek compensation – they may exercise a number of procedural rights
(for instance, receiving documents filed by the Parties, calling
witnesses upon authorization of a Chamber, examining and
cross-examining witnesses, filing motions and briefs.”
Given that these international tribunals provide for survivor
participation that intentionally does not rise to the level of civil
party participation, it would seem only logical that the ECCC’s
civil party participation scheme must at least provide survivors the
rights contained in those lesser survivor participation schemes.
However, as discussed below, there are concerns that with ECCC civil
parties may in fact have fewer rights.
Admittedly, the
rights of civil parties—and more broadly, survivors—do not exist in
a vacuum. In criminal proceedings, the court must balance survivors’
rights with the need for a fair trial that preserves the rights of
the accused. Additionally, the proceedings should proceed as
expeditiously as possible. These three competing interests often
operate in tension with each other, where the expansion of one
interest serves to restrict another. This is especially true for the
ECCC, as it oversees proceedings potentially involving thousands of
civil parties. The ongoing tension between these competing interests
that have led to departures from Cambodian practice prompted Judge
Lavergne to ask, “[h]ow far can one go without breaching the spirit
of the law, or fundamentally distorting the meaning of the
involvement of Civil Parties before the ECCC and the purpose of the
trial as a whole, characterized by the coexistence of two
interrelated actions, namely criminal and civil actions.”
With the adoption
of more restrictive civil party rules, there is a concern that the
ECCC will pass that point. To combat these concerns, the revised
Rules must at a minimum preserve the attorney-client
relationship—and its attendant rights—while also continuing to
guarantee the right of survivors to participate in the proceedings
as “parties.” A failure to do either would so undermine the rights
of survivor-participants that they could no longer properly be
considered civil parties.
Attorney-Client Relationship
As
parties to the proceedings, civil parties currently have a right
under the Internal Rules to be represented by counsel. For this
right to be robust and meaningful, it must continue to include the
necessary elements of any attorney-client relationship: the right of
the client to hire an attorney of his/her choice, the client’s right
to fire his/her attorney, the obligation of the attorney to
represent the client’s interests, and the authority of the client to
determine the objectives of the legal representation and participate
in deciding the means of carrying them out. A failure to include
these necessary elements in the revised Rules would so severely
undermine the right to counsel as to leave serious questions as to
whether the Chambers are paying anything more than mere lip service
to this fundamental principle of the rule of law.
According to
the ECCC press release, beginning at the trial stage civil parties
will be consolidated into a single group and the group’s interests
as a whole will be represented by the co-lead counsel. It further
states that civil party lawyers are to provide support to the
co-lead counsel. Under this scheme, however, it is unclear who will
represent the interests of individual civil parties. It is essential
that civil party lawyers are not relegated to being glorified
paralegals, confined to non-substantive tasks, and prohibited from
advocating to the court behalf of their client. If this proves to be
the case however, there must be a clear reciprocal relationship
between the lead counsel and each civil party with clear language as
to the co-lead counsel’s obligation to the individual civil parties,
and not just the consolidated group as a whole. For example, the ICC
has specifically stated that “[t]he common legal representative
shall be responsible for both representing the common
interests of the victims during the proceedings and for acting on
behalf of specific victims when their individual interests are at
stake.”
Such language in the revised Rules would help allay concerns that
the civil parties’ individual interests are being subjugated to the
overall interests of the single consolidated group.
The revised
Rules must also contain a mechanism for the raising or settlement of
strategy disputes between a civil party lawyer and the co-lead
counsel. Such disputes will inevitably arise between lawyers, in
particular when they represent clients with different interests and
goals. To provide no dispute resolution mechanism in the revised
Rules would ignore the certainty that legitimate disagreements will
arise. Notably, the ICC provides that if the common legal
representative cannot “fairly and equally” represent the interests
of one or more groups of victims, the common legal representative
will inform the Trial Chamber “who will take appropriate measures
and may, for example, appoint the Office of the Public Counsel for
the Victims to represent one group of victims with regard to the
specific issue which gives rise to the conflict of interest.”
Likewise, there
must be an incentive for the ECCC co-lead counsel to take into
account dissenting opinions from the civil party lawyers. If a civil
party lawyer vehemently objects to a certain decision made by the
co-lead counsel, there must be choices available beyond continuing
on as a civil party lawyer despite this objection or quitting. Given
that civil party lawyers, like all legal counsel, are obligated
under national and international ethics codes to represent their
client’s views and interests, this would put them in an impossible
situation.
Moreover, the
rights of the civil parties themselves must be protected. Civil
parties must also be allowed throughout the proceedings to hire
counsel of their choosing, as well as fire their counsel, and
determine the objectives and means of implementing those objectives.
This is essential because many of the survivors in Case 002 come
from different ethnic or religious backgrounds, may have experienced
their injuries at different times, different locations and at the
hands of different people, and are likely to have different
objectives for their participation and desire differing forms of
reparations. These varying and potentially divergent interests must
be represented if there is to be true civil party participation
under the revised ECCC Rules.
Right to
Participation
Under
the ECCC Internal Rules as originally drafted, once a civil party
joins the proceedings, “the Victim becomes a party to the criminal
proceedings.” As a result, the civil party is entitled to
“[p]articipate in criminal proceedings against those responsible for
crimes within the jurisdiction of the ECCC by supporting the
prosecution,” as well as to seek “collective and moral reparations.”
This right to meaningfully participate in the proceedings as a party
carries with it certain rights, such as the right to call, examine
and cross-examine witnesses, to be questioned as an interested
party, and to request investigative action, among others. In order
to still be considered “parties” to the proceedings, these rights
must remain intact.
Because the
co-lead counsel are intended to take the lead in representing all
civil parties, civil party rights most likely will have to be
exercised through the co-lead counsel. This could render many of
these rights illusory. For example, one of the key participatory
rights afforded to civil parties in civil law jurisdictions around
the world, including Cambodia, is the right to request investigative
action. Previously, this right could have been exercised through the
civil party lawyers. It is now unclear what impact the creation of a
co-lead counsel will have on this right but presumably it would have
to be exercised through the co-lead counsel. However, the co-lead
counsel are responsible for the interests of all survivors within
the consolidated group. Thus, if one group of survivors wishes to
request investigative action, but the co-lead counsel feels that
this action could run counter to the overall strategy, then the
co-lead counsel could refuse to request investigative action,
undercutting the right entirely. Again, the presence of a dissent
mechanism is vital to provide substance to the exercise of these
rights.
As Judge Lavergne
noted in a dissenting opinion, civil parties in domestic
jurisdictions “may participate throughout the legal proceedings, the
common purpose of which is to ascertain the truth concerning the
accused’s criminal responsibility, which might also be the basis of
his or her civil responsibility.” This dissent was to the mid-2009
decision by the Trial Chamber that eliminated outright the right of
civil parties to participate in sentencing proceedings and severely
undermined their right to cross-examine certain witnesses. The ECCC
so ruled despite the fact that both international tribunals that
allow victims to participate in proceedings, though not as civil
parties, provide victims with the right to participate in sentencing
proceedings. Although individual changes to the Rules may not be
decisive, in combination with this recent decision, a revised Rules
scheme that does not preserve such fundamental civil party rights as
the right to request investigative action would suggest that ECCC
“civil parties” are no longer “parties” to the proceedings.
Conclusion
If new civil party rules are adopted that do not preserve the
attorney-client relationship and a genuine right for civil parties
to act as “parties” in the proceedings, it is unclear what role, if
any, survivors will continue to have before the ECCC. To preserve
their meaningful role, as originally envisioned, the Chambers must
ensure that it does not strip away too many civil party rights, all
in the name of judicial management of the case. While the Chambers
have every right to do this, if they are to end civil party
participation, they should be honest with the survivors. As two
observers have written, “[i]f civil party participation is replaced
by representation of victims’ collective interests…the Court must
explain to applicants that their participation rights have been
eliminated.”
Likewise, as stated by Youk Chhang, Director of the Documentation
Center of Cambodia, in the September 2009 edition of Searching
for the Truth Magazine,
It is true that
many civil parties do not fully understand the meaning of the term
“civil party” and the scope of their role in the proceedings;
however, it would be disrespectful for the Court to hide behind this
outreach failure. If the Court wants to limit civil party rights, it
has an obligation to explain the full legal implications both to the
public at large and to the applicants before a final plan is
adopted.
Given the immense
suffering and trauma experienced by these survivors, it is the very
least the Chambers can do.
