Just as parties prepare to resume the contentious appeal of the Khmer Rouge tribunal’s landmark guilty verdict in its Case 002/01 later this month, a new report by three leading research organisations has painted a damning portrait of the court’s handling of the case – as well as of the verdict itself.
Detailing a litany of purported mistakes and irregularities, the report – issued by the Asian International Justice Initiative, the East-West Center and an arm of Stanford University – seeks to show “how a contentious and confusing trial process in Case 002/01 ultimately produced a similarly troubled final judgment” against remaining defendants Nuon Chea and Khieu Samphan.
The tribunal’s controversial decision to sever Case 002 into separate sub-trials factors heavily into the report’s critique. Though the decision was made in the hopes that at least a portion of the crimes in the sprawling indictment could be tried before the ageing defendants die, the report’s authors argue that decision ultimately caused the trial to drag on even longer.
And though the court’s Supreme Court Chamber later struck down the severance decision, it allowed a later, almost identical severance order to stand, indicating “that pragmatism may have superseded concerns of justice and fairness”.
The report also goes on to criticise the court’s use of documentary evidence – particularly records of interviews with witnesses who did not appear in court – a source of heated debate during the trial, and a decision the report says allowed reams of evidence to go unchallenged.
Though the chamber had repeatedly promised not to use such material to establish the conduct of the accused, the report’s authors found “that the Chamber did in fact rely repeatedly upon such statements”.
The judgment, the report continues, displays a seeming misunderstanding of key legal principles used to prove the defendants’ legal responsibility, and “offers a poorly organized, ill-documented, and meandering narrative in lieu of clearly structured legal writing”.
The lack of detailed reasoning leaves readers to simply assume evidence was thoroughly analysed, “although . . . the quality of the factual findings and legal conclusions leave ample basis to doubt such analysis took place”.
Nuon Chea defender Victor Koppe yesterday said that the report vindicated a number of positions also espoused by the defence.
“To be honest, I’m very happy that finally an objective outsider, a very knowledgeable outsider, is sharing some of our criticisms,” he said.
The irregularities in the conduct of Case 002/01 have already, and will continue to, impact its appeal, Koppe said, adding that a recent decision by the Supreme Court Chamber not to call key witnesses – among them National Assembly President Heng Samrin – had left him considering whether to withdraw as Chea’s lawyer.
Prosecutor William Smith yesterday said that while the prosecution had had some initial concerns with the representativeness of Case 002/01, the case’s scope had not been unclear, as the new report alleges, and generally speaking, “the prosecution is of the view that the trial was fundamentally fair and fairness was not sacrificed for expeditiousness”.
“This is not a ‘rush to judgment’,” he added.
The tribunal’s legal communications officer Lars Olsen declined to comment yesterday, saying, “It is normal practice for a court not to comment on its own decisions.”