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The Supreme Court Chamber prepares to commence the appeal hearing at the Extraordinary Chambers in the Courts of Cambodia. ECCC
The Supreme Court Chamber prepares to commence the appeal hearing at the Extraordinary Chambers in the Courts of Cambodia. ECCC

KRT debates culpability in appeal hearings

Parties debated evidence and legal definitions yesterday at the Khmer Rouge tribunal as Case 002/01 appeal hearings entered their second day.

Former Khmer Rouge senior leaders Nuon Chea and Khieu Samphan are appealing their life sentences, handed down in August of 2014, on a combined total of 371 grounds for appeal.

As with the first day, Chea defender Victor Koppe continued his promised absence and the Chea defence made no oral submissions.

The morning session saw Samphan defender Anta Guisse argue that the crimes against humanity connected to the executions of Lon Nol soldiers for which Samphan was convicted were legally and factually flawed.

However, prosecutor Nicholas Koumjian dismissed Guisse’s legalistic claims as being illogical, while irregularities in evidence over which Guisse sought to cast doubt were similarly dismissed as having been “proven beyond reasonable doubt”.

In the afternoon, the chamber heard submissions related to individual criminal responsibility, with Guisse challenging the prosecution’s efforts to apply the expanded definition of Joint Criminal Enterprise (JCE III) to Samphan’s charges. JCE III refers to the legal notion that one is responsible for the foreseeable consequences of an action even if those outcomes are not stated as an objective.

“It’s not Mr Khieu Samphan in the depths of his [jungle hideout] in 1975 that would have thought about his mode of responsibility,” she said, going on to imply that political revolution in and of itself was not a crime.

Arguing that JCE III did in fact apply, Koumjian rebutted that the accused had “the intent to achieve a radical revolution . . . by means that were criminal”, and that the proceedings in the original Case 002/01 proved “that each of the accused have contributed to that enterprise”.

“When people were on the road being evacuated from Phnom Penh in horrendous, inhumane conditions . . . Khieu Samphan remained the spokesperson, the voice justifying this,” he said.

Citing testimony placing Samphan and Chea at a meeting at which the forced evacuation of Phnom Penh was approved, prosecutor Dale Lysak asserted that it was evidence, not judicial bias as Guisse alleged, that implicated Samphan in the disastrous criminal plan.

“All that we ask is that the final decision be made based on the evidence,” Lysak told the judges, “We simply cannot decide this based on rhetorical arguments that this was a show trial.”

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