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End of the beginning

Former Khmer Rouge head of state Khieu Samphan (left) and Brother No 2 Nuon Chea
Former Khmer Rouge head of state Khieu Samphan (left) and Brother No 2 Nuon Chea are expected to appear at the UN-backed Khmer Rouge tribunal for the opening of closing statements today. ECCC

End of the beginning

Some two years after it began, after 212 days of hearings and the loss of two of its four original defendants, the Khmer Rouge tribunal will today begin hearing closing statements in Case 002/01.

Case 002, the tribunal’s flagship case, has sought to try the "most responsible" surviving members of the Khmer Rouge regime for the crimes committed during their reign: chief ideologue and Brother No 2 Nuon Chea, ex-Minister of Foreign Affairs Ieng Sary, former head of state Khieu Samphan and ex-Minister of Social Affairs Ieng Thirith.

Thirith, however, was released from custody in September 2012 after being deemed unfit to stand trial due to dementia. Proceedings against Sary, her husband, were terminated in March when the then-87-year-old died after a lengthy hospital stay.

Closing arguments – scheduled to last until October 31 – will trace the arc of a case that examined defendants’ culpability for the forced movement of Cambodia’s population and the executions that followed shortly thereafter.

Civil party representatives today will take the lead in offering their statements, and are expected to give final submissions on the state of reparations for Khmer Rouge victims.

Though the court is the first of its kind to formally acknowledge the rights of victims to participate and to receive reparations, it was not without its faults, civil party lead co-lawyer Elisabeth Simonneau-Fort said, noting that “the greatest flaw on reparation[s] is the obligation for civil parties to find funds to obtain them”.

Since all the defendants were deemed poor, civil parties have been forced to find the money needed for projects meant to benefit the nearly 4,000 victims represented in Case 002.

In an email yesterday, Simonneau-Fort said her team had filed a 60-page submission last week, and they hope all their projects will be “acknowledged by the trial chamber even if, at this stage, all are not totally funded”.

Open Society Justice Initiative tribunal monitor Heather Ryan said the court had to deal with a “learning curve” as it increased civil party involvement, but that “generally, the court has struggled with how to balance the legitimate rights and needs of civil parties, the prosecution and the accused in this case”.

Following the conclusion of the civil parties’ submissions, the prosecution is expected to spend three days laying out its case that the Khmer Rouge had a standing policy of evacuating urban populations and an over-arching policy to execute officials of the toppled Lon Nol regime – and that the remaining defendants had a hand in hatching these policies. Prosecutor William Smith had not responded to requests for comment as of press time.

When their turn ultimately comes on October 22, defence teams are sure to rebut – as they have in the past – that the evacuation of Phnom Penh was a logistical necessity, that the executions of Lon Nol soldiers were carried out on the orders of low-level commanders and that, in Khieu Samphan’s case, he simply had no hand in decision making.

However, the treatment of the accused and the court’s alleged bias against the defence is also likely to come up as defence teams make their final cases. Such bias has been another long-standing complaint against the trial chamber, and perhaps not without reason, Cambodian Justice Initiative program officer Long Panhavuth said, adding that the court routinely shut down the defence.

“When the trial chamber rejects the objections of the defence, it is not promoting what you call the ‘equality of arms’ of the defence,” Panhavuth said.

Though no statistical analysis has been carried out, he said, judges rarely overrule prosecution objections and rarely sustain defence ones, and are furthermore prone to cutting off defenders’ microphones mid-sentence, especially when speaking on sensitive topics.

“They need to reassess their ethical responsibilities that they have to promoting a fair trial and equality of arms,” Panhavuth added.

The chamber’s treatment of the defence throughout the trial, Khieu Samphan defender Arthur Vercken said, had the effect of making hearings feel like exercises in futility.

“You speak and nobody is listening to you. They cut off your microphone; they don’t want to hear anything. They just want to finish,” he said. “You feel completely without any power.”

Even in drafting its closing statements, Vercken said, the defence was given inadequate space to make its arguments, and inadequate resources to translate the prosecution’s closing submissions.

But the greatest bias, Vercken maintained, could be seen in the selective implementation of the very severance ruling that created Case 002/01, limiting the scope of the trial to forced movement and one execution site.

“The main problem we have in this trial is coming from the severance,” Vercken said, adding that the court had wavered on its enforcement of the limited scope to the detriment of the defence, in part by admitting a host of new documents in the last weeks of the trial.

“Imagine you are accused of having committed the theft of a car. Your lawyer is going to court; he is studying the file about the theft of a car. And then when you get to court, the judge says you are also accused of a rape and robbing a bank,” he explained. “This is the situation that we face.… Now, at the end, they are putting all the [indictment] on the table.”

After the defence teams make their statements, the prosecution will have a chance to rebut, following which defence lawyers – and the defendants themselves – will have one more opportunity to make statements.

Though both defendants refused to be cross-examined during the trial, Nuon Chea did make a rare admission of remorse for the hardships endured by the Cambodian people under Democratic Kampuchea, but has also defended his motivations for “liberat[ing] his motherland”.

Samphan has maintained, as he did at the outset of the trial, that he “occupied an official senior position in Democratic Kampuchea without having been a part of the decision-making process and without having been informed of all that was happening in our country”.

However, even if the defence has the last word on October 31, it’s unlikely to be the last word in Case 002/01.

“An appeal is a strategic decision that the accused are going to have to make,” OSJI’s Ryan said. “I don’t know what grounds they’re going to choose to appeal. [But] I would be surprised if there weren’t an appeal, because this has been a very complex case.”


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