|
The 2005 Legal Training Project on
Criminal Defense before the Upcoming Khmer Rouge Tribunal
Report on the Legal Training of August 2005
This report describes the Legal Training, which took place at the
DC-cam’s office from 15 to 26 August 2005.
I. The legal training’s sessions
1. Overview
The legal training’s sessions focused on “Criminal defense before
the upcoming Khmer Rouge tribunal (KRT)”.
The topics presented were the same than during the July legal
training. They are the following ones:
-
An introduction to the upcoming KRT.
-
The rights of the defendant.
-
The role of the defense counsel before the KRT.
-
Potential challenges for defense counsel before the KRT.
-
Rights and duties of defense counsel before the KRT.
-
Types of defenses.
-
Defense’s motion and closing
arguments.
Those topics were presented in different fashions: lectures;
workshops; wrap up exercises (including questions and answers sessions
and drafting of essays); presentation and screening of a video on a
hearing before the ICTY; visit to a courtroom and to the potential KRT
premises; and screening of the documentary “ S 21 : the Khmer Rouge
Killing machine” by Rithy Panh (see the August legal training’s
agenda).
2. Achievements
All the presentations made by the legal training team and the foreign
guest lecturers were translated into Khmer.
Most of the trainees confirmed to the legal training team that they
understood and were extremely interested in the topics presented. The
participation of the trainees during the lectures was however less
active than in the July training session. Nevertheless, during each
training session, very pertinent and/or complex legal questions were
asked by the trainees to the guest lecturers or legal training team.
In addition, during the workshops, all the trainees present performed
the assigned exercises in a committed manner. They were split into
different groups and were asked to prepare answers, which were later
presented orally by one or two representative persons of the group.
Finally, the wrap up exercises gave an additional chance to the
trainees to raise questions and to make comments on relevant issues,
while also allowing less confident trainees to take the floor.
3. Comments made by some of the trainees on the topics and forms of
the legal training’s sessions
On the legal training’s topics:
“I liked all topics presented during the legal training. All topics
are very important and interesting for me to know about the upcoming
KRT in Cambodia.”
“It is useful for me as national lawyer to understand about the KRT in
general and about the procedures used before the KRT, and the idea to
have a court in particular.”
“ I like it because the topics in the training provides new
knowledge.”
“I like the lectures relating to the KRT and international criminal
tribunals.”
“It is so important for me because it makes me understand about legal
issues (KRT).”
On the way the training was proceeding (lectures, workshops, etc…):
“The training session organised by the legal training DC-cam staff are
good. I like it very much. It’s easy to understand about the training
course. The guest lecturers’ lectures were also very good and
interesting.”
“We have basic idea by having theory and practice together in class.”
“I like this training because there is a mix of guest lecturers and
exercises.”
II. Involvement of the foreign and Cambodian guest lecturers
1. Overview/achievements
Foreign guest lecturer I:
Geert-Jan
Alexander Knoops, professor of international law at Utrecht University
and defense counsel before the ICTR, ICTY and Sierra Leone Special
Court, dealt with “the rights of the defendants” and took part to four
days of the legal training (days 2 to 5). Pr. Knoops also facilitated
the workshop on day 2 of the training and took part in the wrap up
exercise on day 5 of the training.
The workshop exercise involved splitting the classroom into three
groups and giving to each group for review an edited (and simplified)
version of Human Rights Committee’s views delivered in one specific
case. Each group was requested to present to the other groups:
-
What were the violations of Article 14 of the ICCPR alleged by the
author of the HRC’s communication, and
-
What were the views of the HRC in the case they had examined.
All groups succeeded in identifying both the issues raised in the
HRC’s views and the conclusions adopted by the HRC.
The wrap up exercise consisted of answering to questions raised by the
trainees on various topics, which had been dealt during the week, such
as for instance the jurisdiction of the KRT, the rights of the
defendants, or the aim of the KRT.
Hereafter are some of the questions raised by the trainees:
“Could the KRT try foreign politicians related to the Khmer Rouge
leaders or try current leaders of Cambodia if there was evidence found
against those persons by the KRT Prosecutors?”
“How can Khmer Rouge persons be presumed innocent, although the crimes
committed by the Khmer Rouge are widely known?”
“Would KRT judges and prosecutors, who are victims of the Khmer Rouge,
be able to adjudicate cases in an independent and impartial way?”
Foreign Guest lecturer II:
Wayne Jordash, UK Barrister and defense counsel before the ICTY and
the Sierra Leone Special Court, dealt with “the role of the defense
counsel before the KRT” and “rights and duties of defense counsel
before the KRT” over two days (on days 6 and 7 of the training).
Wayne Jordash also designed and facilitated a workshop, which was held
on day 7 of the training. The workshop consisted of providing the
trainees with a case study, which recounted the story of a person who
had been arrested and then tried before the KRT. Factual and legal
information were given for each stage of the criminal proceedings. The
trainees were requested to present what actions they would take, if
they were defense counsel, to defend their client throughout the
criminal proceedings. The trainees managed to find many of the motions
and actions defense counsel should have done in the instant case and
also referred to the appropriate law provisions to support their
actions/motions.
Foreign Guest lecturer III:
Professor Linda Carter, University of the Pacific, McGeorge law
school, Sacramento, California, USA, dealt with “types of defenses”
and “defense’s motion and closing arguments” and took part in the last
three days of the training (days 8 to 10).
Pr. Carter’s lectures on “types of defenses” focused on three main
issues:
-
the failure by the prosecutor to prove elements of both the crime of
genocide and crimes against humanity,
-
the failure to prove the theory of command responsibility,
-
affirmative defenses, such as superior orders and duress defenses.
She also gave information on motions and closing arguments.
Pr. Carter’s theoretical presentations were afterwards put into
practice during a workshop dealing with the same issues on day 9 of
the training. Pr. Carter also facilitated the wrap up exercise of day
10 of the training
Cambodian guest lecturer:
Mr. Huot Vuthy, deputy prosecutor of Kandal provincial court, dealt
with “the rights of the defendants in practice in Cambodia”. He took
part in the afternoon session on day 4 of the training. During this
session, Mr. Huot Vuthy provided the trainees with a criminal case
that he had dealt with at Kandal provincial court. Subsequently, he
reviewed with the trainees the violations of the rights of the
defendants in the said case.
2. Comments made by some of the trainees on the lectures
“All courses, explanations of lecturers and examples, are interesting.
I like it so much.”
“The course is a little bit short”.
3. Comments made by some of the trainees on the workshops and warp up
exercises
“I learned a lot from the workshops.”
“ It is very good instructive lecturing.”
III. Legal training’s materials
1. Overview
The legal training team prepared two volumes of course materials on
“criminal defense before the upcoming KRT” (see report on LTP – July
2005).
Both documents were distributed and presented to the trainees on 12
August 2005 and on the subsequent days. During the training, the legal
training team and guest lecturers regularly informed the trainees
about where in the course materials they could find:
-
some specific information (such as: information on the
interpretation of the defense of duress by the ICTY in Volume I or
provisions of the Laws included in volume II, etc…), or
-
the answers to some of the issues discussed during the presentations
(example of question: Could the jurisprudence of other international
tribunals be used before the KRT? – when answering this question:
reference was made to pages 7 and 8 of the course material, which
deal with this issue).
During the training, the legal training team also distributed to the
trainees a “Searching for the truth magazine”, which contains a
translation in Khmer of Chapter two of the training material Volume I
on the “rights of the defendants”.
Throughout the training, the trainees noticeably were using the
training materials Volume I and II: by highlighting parts of it or
reading aloud some of the laws provisions, etc…, which were mentioned
during the guest lecturers’ presentations.
2. The trainees’ attendance
During the legal training, the participants were as follows:
-
6 villagers coming from 5 different provinces, including Kampong
Cham, Kandal, Pursat, Prey Veng, and Kampot.
-
4 journalists, including two from Cambodge Soir, one from Women
Media Center of Cambodia and a freelance journalist,
-
10 lawyers from various law firms and organisations,
-
5 legal assistants and intern lawyers,
-
1 member of a political party, i.e. the interim President of Sangkum
Thmei party.
The training session had a total of 18 morning and afternoon sessions.
5 participants attended all the training sessions and 3 of them missed
only one day of the legal training. Those 8 participants were 6
villagers, the interim president of Sangkum Thmei Party and a lawyer
working for the organisation RULE. In addition, half of the
participants attended at least 8 of those sessions.
3. Unexpected Outcome
During the training, we were given information by one of the trainees
on documents of the Khmer Rouge regime. Mr. Thong Sambath, a lawyer at
the Asian International Law Firm, met with the Director of the
Documentation Center of Cambodia a few days after the completion of
the training and promised to handover some pictures of the Khmer Rouge
regime to DC-Cam for public use.
Surprisingly, another trainee, Mr. Ros Suy, 51, from Kandal province,
found information on his dead sister in Searching for the Truth
magazine. While he was waiting in the Public Information Room ("PIR")
before the beginning of an afternoon training session, he read the
magazine Searching for the Truth, no. 31 of July 2002. He then
recognized clearly a picture of his sister in the magazine. Mr. Suy
said that since his sister disappeared in 1977 he had tried by all
means to seek information about her, but unfortunately his effort has
not succeeded.
Last but not least, Prof. Knoops contributed to us a book entitled
An Introduction to the Law of International Criminal Tribunals: A
Comparative Study and an article: International and
Internationalized Criminal courts: the new face of international peace
and security for the use of DC-Cam. He is the author of the book
and article.
Prepared by Héleyn Uñac
heleynunac@hotmail.com
and Dara
P.
Vanthan
truthpdara@dccam.org
|
