In its order outlining the second phase of Case 002 last week, the Khmer Rouge tribunal left open the fate of leftover crimes that won’t be heard in the coming sub-trial. The order comes just weeks after prosecutors proposed a rule change that would allow the court to withdraw crime sites entirely.
Though the court has yet to accept it, the proposed rule change is already drawing fierce criticism from some corners, with at least one lawyer arguing that the precedent set by the proposal could further damage Cambodia’s already legally shaky domestic courts.
In its order, the trial chamber notes that it “excludes certain facts, charges and crime sites from the scope of Case 002/02”, but that since a formal request to withdraw charges has not been made, “the Trial Chamber need not address this issue at the current stage of proceedings”.
As the order points out, no such motion has been filed, but a prosecution memo dated March 4 has suggested amending the court’s rules to explicitly allow certain alleged criminal acts to be dropped in order “to expedite proceedings at the ECCC … while ensuring that the remaining crimes … retain the essence of the criminal charges”.
According to the text of the proposed rule’s, the change would not allow the exclusion of charges as a whole, but “would only reduce the evidence needed under each legal charge by reducing the number of crime sites”, prosecutor Bill Smith said.
However, in a memo responding to the proposed change, the court’s civil party lawyers firmly opposed the changes, which “threaten a denial of justice to civil party victims”, they said.
What’s more, they continue, the rule change would leave unacceptable gaps in the historical record, and “could lead to the untenable circumstance in which historical revisionists … could claim that, because certain allegations … were indicted, but never adjudicated by the Court, they are untrue”.
Defender Michael Karnavas, who represents a client in Case 003, went even further, calling the change in a blog post “an attempt to eviscerate the principle of legalism”, a term that refers to a court’s obligation to prosecute when it knows a crime has been committed.
Such a move, he continued, would “set a precedent”, allowing judges in the domestic system – to which the tribunal technically belongs – to point to the court’s jurisprudence when dismissing charges in their own cases.
“And of course … and [domestic courts] can point to the ECCC and the so call[ed] international standards this ‘model’ court purportedly follows.”
But Smith, the prosecutor, maintained that the change “will not amend the Cambodian Code of Criminal Procedure and consequently could not be utilised in the other national courts”, noting furthermore that any attempt to withdraw “key” crime sites would fail the proposed rule’s requirement that the sites remain “representative” of the charge.