The Phnom Penh Post

The tribunal announced this week that genocide charges had for the first time been brought against three regime leaders: Nuon Chea, Ieng Sary and Khieu Samphan.

The charges stem from the regime's treatment of Vietnamese and the Cham Muslim minority group.

Brother No 2 Nuon Chea and Ieng Sary, the regime's foreign minister, were informed of the charges during a meeting with investigating judges on Wednesday. Former head of state Khieu Samphan was informed Friday. A meeting with Ieng Thirith, former minister of social action, is scheduled for early next week.

My apologies for playing catch-up on this post. I am just returning from a trip to the provinces and was not around to cover two stories of note:

No. 1: On October 7, the tribunal made public six summons letters, dated September 25 and bearing the signature of International Co-Investigating Judge Marcel Lemonde, requesting that six government officials - Senate President Chea Sim, National Assembly President Heng Samrin, Foreign Minister Hor Namhong, Finance Minister Keat Chhon and two CPP senators – appear at the tribunal to provide testimony “in the framework of the investigation under way against Nuon Chea, Ieng Sary, Khieu Samphan and other leaders”.

The following day Prime Minister Hun Sen weighed in, saying the officials' testimony could prejudice the tribunal's second case. Speaking at Chaktomuk Theatre, he said: “These [officials] made the Pol Pot regime collapse, and they adopted the law on the Khmer Rouge tribunal, so if they go as witnesses, it would make the accused persons guilty. How is justice to be done? My main problem is that turning the plaintiffs into witnesses would doom the accused.”

This past Wednesday marked the 30th  anniversary of the People’s Revolutionary Tribunal, which found Pol Pot and Ieng Sary guilty of genocide and sentenced them to death in absentia.

I reached out to a handful of experts while reporting the story and because of space constraints was unable to include many interesting responses in the print version. I am reproducing some below:

Co-Investigating Judges at the tribunal denied a request Friday that they investigate allegations of corruption at the court. The request had been lodged by Nuon Chea's defense team, and was supported by two other defense teams.

The Co-Investigating Judges wrote that probing such allegations was outside their jurisdiction.

"Whilst reiterating their desire for an irreproachable Court, they noted that the primary condition for fair trials is that the judges themselves respect the Law, particularly the jurisdictional limits laid down by their founding documents," according to a release from the court. "Accordingly, they were obliged to note that they did not have jurisdiction, under the 27 October 2004 Law and Internal Rules, to conduct the action requested by the Defence."

Allegations of corruption at the Khmer Rouge tribunal could cause investigative delays and possibly prompt the UN to withdraw its support from the court, defense attorney Michael Karnavas said Thursday.

"We don't know if six months or a year from now, this institution will be present," he told the Pre-Trial Chamber; the "ever-growing issue involving corruption and the courts" may convince donors to pull out of the process.

Thus, he reasoned, the chamber should release Ieng Sary, his aged client, from provisional detention. Karnavas has also argued that the octogenarian's frail health necessitates that he be able to live under house arrest.

After being forced to remove documents from their self-published website, lawyers for Ieng Sary lodged an appeal last week against a recent "Confidentiality Order" from the Co-Investigating Judges.

The Co-Investigating Judges claimed the lawyers were posting documents that, if made public, would compromise the quality of judicial investigations at the tribunal. Lawyers temporarily removed several documents, but said they would fight back. In their appeal, filed March 10, they had tough words for the court. I've posted some of the highlights below:

* "Only by vacating the Confidentiality Order and permitting the Defence to maintain a website throughout the entirety of the ECCC proceedings which posts the Defence team's public filings before the ECCC, will the Pre-Trial Chamber be able to ensure that there is no chilling effect on the right of each party to the proceedings to advocate its interests freely, openly and transparently," co-lawyers for Ieng Sary Michael Karnavas and Ang Udom wrote.

The tribunal's fifth plenary wrapped up Friday, with participants issuing a statement about changes they had made to the court's Internal Rules. Among the amendments was a decision to bar civil parties from making their own legal submissions:

"Specifying that where Civil Parties are represented by a lawyer, it is the lawyer and not the Civil Parties themselves who must make legal submissions before the court," according to the statement. "The amendments do not limit the rights of Civil Parties but instead, modify the manner in which these rights are to be exercised, due to the extremely large number of Civil Parties before the ECCC proceedings, and the impracticability of concluding trials expeditiously if all Civil Parties were allowed to intervene on any matter at any stage of proceedings. These amendments do not apply where a Civil Party is being interviewed, and do not prevent a Civil Party from answering questions put to him or her by the Chamber."

This issue came to the fore in June when Theary Seng, a civil party and the Executive Director of the Center for Social Development, attempted to address the court during a pre-trial hearing for Ieng Sary. Judges ultimately denied her request, but Judge Rowan Downing issued a dissenting opinion.

Defense lawyers at the ECCC and court monitors fired back at the tribunal yesterday, charging the court with a lack of transparency. On Tuesday, Co-Investigating Judges had ordered Ieng Sary's defense lawyers to remove allegedly confidential documents from their website.

"Despite the confidentiality of the investigation, the ECCC is a public institution. The OCIJ is clearly failing in its role to keep the public informed about developments in the investigation," Andrew Ianuzzi, legal advisor to Nuon Chea's defense team, told the Post.

In a statement posted to the controversial website, Ieng Sary's lawyers wrote they had temporarily removed several documents pending a more complete legal response.

Ieng Sary's defense team received a warning from Co-Investigating Judges Tuesday: Remove all sensitive documents from their independent website, or "face sanctions." The lawyers have 48 hours to take down "any documents relating to the judicial investigation, other than those already published on the ECCC website," according to a statement from the court.

The Co-Investigating Judges claim the defense team published confidential documents on the site. It does not specify what those were.

I do know that, since it was established by the defense team, the site has been an excellent source for material not published on the ECCC site. The rationale for its creation is explained on the homepage:

In what is becoming something of a pattern at the tribunal, Ieng Sary was unable to participate in his appeal hearing today due to ill health. As a result, judges adjourned court at mid-day and have scheduled another hearing arguing the extension of Ieng Sary's provisional detention for April 2.

In June, the first day of an appeal hearing for Ieng Sary ended early when the defendant said he did not have the strength to continue. At that time, he complained of dizziness, fatigue and intermittent coughing.

Today, according to an early morning report from the detention center's doctor, Ieng Sary was not well enough to appear in court at all. The 83-year-old had been rushed to Calmette Hospital Monday evening after passing blood in his urine and returned to the ECCC Wednesday afternoon. Court officials would not specify the symptoms that kept Ieng Sary out of court on Thursday.