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Judges (back row) stand before the pronouncement of the verdict in Case 002/01 at the Extraordinary Chambers in the Courts of Cambodia in August
Judges (back row) stand before the pronouncement of the verdict in Case 002/01 at the Extraordinary Chambers in the Courts of Cambodia in August. ECCC

Judges targeted in new filing

The trial chamber judges of the Khmer Rouge tribunal have exhibited a consistent pattern of judicial bias and warrant immediate disqualification from the upcoming Case 002/02, according to a 50-page filing from the Nuon Chea defence that was made public yesterday.

The filing – drawing largely on remarks made by former judge Silvia Cartwright and the trial chamber’s verdict sentencing co-accused Nuon Chea and Khieu Samphan to life in prison – argues that over the course of Case 002/01, the chamber repeatedly demonstrated a preformed negative opinion of Chea and a “fundamental lack of open-mindedness” on a host of topics.

One of the main issues taken with the chamber’s handling of Case 002/01 was its refusal to call former Khmer Rouge military commander and current National Assembly President Heng Samrin, whom the defence characterised as the case’s “single most important witness overall”.

Chea, through his defence, has claimed that the crimes attributed to the Khmer Rouge regime were in fact the work of an opposing faction within the regime that actively attempted to sabotage the party’s central committee. This faction, it is claimed, was led by cadre Sao Phim and counted Samrin as a member.

The court’s Cambodian judges’ refusal to hear this evidence, the filing goes on to contend, is an effort to “ensure that the fiction of the unified, strictly hierarchical CPK pyramid can sustain itself so that the faction led first by Sao Phim and later Heng Samrin can continue to shift responsibility for its heinous criminal acts to Pol Pot and Nuon Chea”.

Drawing on remarks made by Cartwright, the former judge, the filing also faults the national-side judges for their perceived inability to impartially judge the leaders of a regime at whose hands they allegedly suffered.

But all of the judges, not just the national ones, displayed bias in their apparently dismissive attitude towards evidence and assertions presented by the defence, particularly their allegations of factional divisions and outside Vietnamese aggression, the motion argues.

Long Panhavuth, a program officer with the Cambodian Justice Initiative, said that while he had not read the filing, some of the concerns voiced within reflected long-standing concerns with the tribunal.

For example, the opacity with which the chamber decided not to call “insider witnesses” like Samrin was troubling, and the trial chamber’s treatment of the defence throughout Case 002/01 represented a failure to “handle in a professional manner” the defence’s objections.

“For the proceedings of Case 002/01, I would say that many of the objections raised by the defence were mostly rejected or denied by the trial chamber, while most of the objections of the prosecution were upheld,” he said, adding that a statistical analysis would help determine the extent of the problem.

A request for comment from the trial chamber regarding the defence’s accusations was not returned as of press time yesterday.

Lawyers for the court’s civil parties also sought to lay the groundwork for the upcoming Case 002/02 yesterday, with attorneys and victims gathering again to discuss the parties’ expectations and recommendations for potential reparations ahead of the trial’s October 17 commencement.

Many of the recommendations were offered with the aim of educating the “young generation”. One civil party from Kampong Cham suggested hiring experts to help maintain the bones of victims found in the hundreds of mass graves dotting the country in order to “preserve those remains . . . to prove the atrocities”.

Multiple civil parties resurrected the long-standing calls for memorial stupas to be built, a request that was denied in the judgement in Case 002/01 due to a lack of funding, though civil party lead co-lawyer Marie Guiraud said that another such request would be made.

One civil party suggested setting aside a 5-hectare social land concession to serve as a burial site for Nuon Chea, Khieu Samphan and S-21 commandant Kaing Guek Eav, aka Duch, so that their remains could become a tourist destination and a testament to the regime’s crimes.

However, civil party lawyer Ven Pov gently put the suggestion to rest, saying that such a thing wasn’t that easy: “They are bound by the law when are alive . . . [but] the law doesn’t govern the dead.”



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