After more than a month of wrangling, the Khmer Rouge tribunal’s trial chamber yesterday reluctantly gave in to Khieu Samphan and his defence team, deciding to adjourn Case 002/02 proceedings until January 8 due to their ongoing court boycott.
The Samphan defence had been ordered to attend court yesterday morning after being reclassified as “court-appointed” lawyers by the chamber last Friday.
That move was a last-gasp attempt by the tribunal to get them to stop abiding by Samphan’s order to focus on his Case 002/01 appeal instead of attending hearings in the current case. The boycott began on October 17.
But the defence team stood firm and failed to appear yesterday, issuing a press statement that said they agreed “100 per cent” with Samphan and instead lambasted the trial chamber for having only “scorn and contempt” for the work of the defence. The lawyers have consistently argued that they do not have the resources to work on the appeal and attend hearings at the same time.
As a result of that decision, yesterday’s court session lasted just 10 minutes. Trial Chamber President Nil Nonn repeated again the chamber’s belief that the Samphan defence had had “adequate time to prepare the appeal”, and compared their position to that of the Nuon Chea defence, which has not made similar complaints about resources.
Citing “concessions and accommodations” that had been made, such as reducing trial days from three to two a week, Nonn argued that Samphan’s lawyers were not working hard enough.
“The chamber considers that the real problem is the Khieu Samphan defence’s lack of diligence. As an example, both international lawyers for the Khieu Samphan defence are currently in Paris where they have law offices,” Nonn said, referring to lawyers Anta Guisse and Arthur Vercken.
“This is at a time when their full attendance should be to this case in Phnom Penh.”
But with only at most six trial dates left this year – and with the Samphan defence expected to file their appeal brief by December 29, following which they have said they will return to court – Nonn said the chamber had “no reasonable alternative but to adjourn the case until January 2015”.
The decision was also made in light of the fact that “any effort to replace Khieu Samphan’s defence team at this time will result in a substantial delay in the trial”, Nonn said, given that there are no other lawyers available who are familiar with the case and could easily take over.
The trial chamber did, however, say it would still consider replacing the lawyers and referring their alleged misconduct to the relevant bar associations.
Samphan’s national lawyer, Kong Sam Onn, said yesterday that the chamber’s decision to adjourn represented a “small victory” for his client.
“Of course we are working very hard on the appeal, not like the chamber said … we are working on the case and even though my co-lawyers [are] in Paris we still keep in communication every day,” he said.
Sam Onn said that despite the threat of referral to the association, the team was not afraid.
Indeed, he claimed that he expected the Cambodian Bar Association would soon issue a statement condemning recent warnings from the chamber about the lawyers’ professional conduct.
Cambodian Bar Association president Bun Hun declined to comment yesterday. He said he was busy in an all-day meeting, which was, according to Sam Onn, related to the tribunal.
Sam Onn added that both the Parisian and Cambodian bar associations had been kept informed of the team’s key decisions.
The lawyers’ statement yesterday accused the trial chamber of violating legal principles.
“Professional judges should know that no court has the power to dictate to lawyers their professional conduct. However appointed, a lawyer is free to make decisions as long as he complies with the law,” they wrote.
Long Panhavuth, a program officer at the Cambodia Justice Inititiative, said that the chamber’s decision meant the Samphan team would have no excuse to boycott after January 8.
“So if Khieu Samphan’s team continues this tactic again in the future on the grounds that they couldn’t participate in both the hearings in Case 002/02 and in the meantime also participate in the [appeal] hearings of the Supreme Court Chamber, then I think this [would be] an instruction from Khieu Samphan himself that is not legal or correct,” he said.
According to Panhavuth, to really judge whether the boycott was valid would require the court’s Defence Support Section to release details of what extra resources have been offered to Samphan’s lawyers since the trial chamber instructed it to do so.
“If there was some information from the DSS that they have already given resources to the defence team then I would say that this is a gross violation of the code of ethics of the lawyers.”
Nuon Chea’s defence co-lawyer Victor Koppe said yesterday that his team was “not at all disappointed” with the chamber’s decision to adjourn, “which was the court’s only logical option”.
“But it does not really speak to the fundamental issue underlying it: Nuon Chea and Khieu Samphan have zero faith in the impartiality, independence and judicial integrity of at least four of the five trial judges who sentenced them to life and now want to try them again,” he said.