On July 18, 2007, the Office of the Co-Prosecutors at the Khmer Rouge tribunal filed its introductory submission, naming five suspects to be investigated for crimes against humanity, homicide, torture and religious persecution.
Now, just over six years later, the first mini-trial in the court’s flagship case against the Khmer Rouge’s surviving senior leaders is beginning to wind down. With the government standing firm on its intention not to see Case 003 and 004 go ahead, and lawyers and analysts alike saying the prospects for further mini-trials are nil, today may quietly mark a watershed.
Noted Khmer Rouge academic Stephen Heder, who testified last week, was the court’s last scheduled witness. Barring the calling of any new witnesses yet to be named, all that remains is the drafting of closing arguments and briefs — likely to be delivered in October — and the process of deliberation as the trial chamber mulls its verdict.
Despite the closure that such a verdict is widely touted to represent, a host of questions and concerns remain unaddressed. Perhaps chief among them is the question of whether the tribunal will be able to try the remainder of the host of charges included in the indictment, or whether after the current mini-trial the Extraordinary Chambers in the Courts of Cambodia will effectively be dead in the water.
“Looking at the health issue of the accused, looking at the funding issue, I would say that practically … realistically, I would say that this may be the end of Case 002,” Cambodian Justice Initiative program officer Panhavuth Long said. “The exit strategy may now take some time, and I think that the court is really going to need to meet the realistic expectations of the victims, and [decide] whether the court cares about Cambodian people.”
In her assessment of future mini-trials, lead civil party co-lawyer Elisabeth Simonneau-Fort also invoked the twin issues of the defendants’ health and that of the tribunal’s finances.
“As for Cases 002/02 and beyond, I am fairly pessimistic since it is evident that finding funds is more and more problematic even for the current year, and in particular for the national side,” Simonneau-Fort said via email, noting that “no one has a hold on” the health of the ageing accused. “In this case, speaking of the coming trials rests in the domain of the abstract.”
If trials for other crimes contained in the indictment don’t proceed, she said, victims of those crimes will never get their day in court, despite their testimony giving “elements of fact and a human dimension [that is] indispensable” to this kind of case.
Such financial concerns may indeed be justified. According to court legal communications officer Lars Olsen, the coffers of the court’s national side have already run dry.
“The national side has currently no funding, and no national staff received salaries for June,” he said in an email. “The internal staff has been extended until the end of September, and we are optimistic that sufficient funding will be secured for the international side for the rest of the year.”
Other procedural issues are still outstanding as well. The tribunal’s Supreme Court Chamber still hasn’t ruled on two appeals against its decision to sever Case 002 into mini-trials, and more witnesses have been requested.
According to Olsen, the court will hold a hearing today to “allow the parties to raise any last concerns they may have regarding issues related to Case 002/01”, and to make oral submissions on recent filings.
For the Khieu Samphan defence, the question of further trials is predicated on the outcome of the current one, and on any appeal that may result from it. Samphan defender Arthur Vercken said that, in any event, there had been a host of alleged procedural errors made by the court that would provide fodder for a potential appeal.
“It is like a bulldozer. The problem with justice like this is that it is going very slowly, but very strongly, and it crushes everything in front of it,” he said. “The addition of all these decisions is a disaster.”
Later elaborating in an email, Vercken maintained that the “chamber is organizing a show, not a trial”.
“The list of damaging decisions from the courts will take dozens of pages,” he said. “We are raising these questions [for] months and suddenly everybody is behaving as if it was a surprise and a strategy from the defence. But we are protesting and writing about all this [for] months [now].”
Samphan co-defender Anta Guisse highlighted such trial chamber tactics as cutting off defence teams’ microphones, and the chamber’s predilection for shutting down defence teams’ lines of questioning on topics it deems “irrelevant”.
“It’s a problem that in these big trials, you have a general idea of what is the case and what questions will be put. But sometimes when you’re the defence you try to raise [different] issues,” she said. “For example, Nuon Chea’s team has raised several times the issue of people who are now in power and were members of Democratic Kampuchea. Is it irrelevant to ask for witnesses that have direct knowledge of what happened, and do not go to court because they have direct responsibility?”
Chea defender Son Arun could not be reached for comment yesterday.
Long, the CJI program officer, said such procedural shortcomings would have an impact that ripples beyond the appeals stage. Failures in such areas as transparency, and a lack of will to call well-connected witnesses, would be damaging even to the tribunal’s legacy as a model for Cambodian courts, he said.
“In general, the court has not left behind a good policy for the internal courts, the legacy. They are not strong enough in terms of ensuring independence,” he said. “For example, there have been witnesses that they have been calling, some insider witnesses who are now in the government, and the [Trial Chamber] has not been calling [them].”
“Second, the transparency issues in Case 002 — during the investigation, the investigating judge had a full blanket of confidentiality,” he added.
While such flaws may not amount to an appeal in and of themselves, he continued, “I think that the defence will do their best to take the trial chamber down, and that will teach the trial chamber to … meet international standards in taking into account the rights of the accused”. While agreeing that the prospects of future trials would depend on multiple considerations, including the health of the accused and the tribunal’s funding, International co-prosecutor Andrew Cayley defended Case 002/01’s impact on domestic courts, and called its completion an “extremely significant” accomplishment.
“[Seven] years ago there was no court, no investigation, no arrests and no trials,” he said, via email. “Cambodian and international staff have worked together in this process imparting legal procedures, jurisprudence, knowledge and skills which we believe will endure and permeate into the Cambodian legal system long after the court’s lifetime.”
Cayley also noted that, compared with other cases against senior leaders in other tribunals, Case 002/01’s two-year trial was relatively quick.
“Justice administered at a very rapid pace, although superficially attractive, undermines the enduring impact that a judicial process with a level of integrity can have on a developing country,” he said. “To say that this trial has been dragging its feet, fails to appreciate the broader positive impact that this court is having on Cambodian society and its institutions.”