In the first hearing held since the Khmer Rouge tribunal’s highest body nullified a controversial severance order, prosecutors yesterday urged that heavier charges be levied against the aging defendants in Case 002/01 before the window of opportunity closes.

During a day of submissions on how to proceed after the severance decision was voided earlier this month, the prosecution called for the addition of charges stemming from the infamous S-21 detention centre.

Those calls, first made more than a year ago, were blocked when the Trial Chamber decided that crimes allegedly committed at the prison fell outside of the scope of the court’s first so-called “mini-trial”, or Case 002/01, which dealt only with the forced movement of populations.

The annulment of the very order establishing the mini-trials, however, has left the court in the position of deciding between two choices.

One is persisting with its current model, which will likely see only the completion of the first mini-trial before age renders the accused unfit to face charges now reserved for later mini-trials.  

The second, as prosecutor Chea Leang put it, is “to accept that the deteriorating health of the accused requires a set of the charges be regrettably, but indefinitely, stayed,” and to pursue a single case “encompassing a broader range of crimes against humanity”.

According to the prosecution, including in the current case charges related to S-21 – the notorious prison reportedly controlled by the Khmer Rouge’s upper echelon where some 14,000 were tortured and killed – would do just that.

International co-prosecutor Andrew Cayley argued that adding S-21 is the best hope of maintaining the “balancing act” of bringing in charges that better represent the horror of the crimes, without unduly lengthening proceedings.

“The inclusion of S-21 would add another four charges on crimes against humanity... and another four grave breaches of the Geneva Conventions” including murder and torture, Cayley said. “You wouldn’t be addressing all of the crimes in the closing order, but you would be addressing substantially more than you are now.”

“This case is ultimately about the untimely deaths of between 1.7 and 2.2 million people,” he added. “S-21... represents the crimes at issue in this case, probably better than any other crime site.”

The inclusion of S-21 in the charges against the accused would be an efficient use of time, said prosecutor Dale Lysak, requiring no more than five additional weeks of testimony and five additional witnesses – one of whom, he said, would be Kaing Guek Eav, also known as Duch, who was sentenced by the tribunal to life imprisonment for his role as head of the notorious prison.

Duch has already taken the stand once as a witness in this case.

The civil parties largely echoed the position of the prosecution, though lead co-lawyer Elisabeth Simmoneau-Fort did make a point to mention that in spite of the focus on expedience, the court “should not attach much greater importance to the final decision than to the discussions that lead to it”.  

“The latter is just as important,” she continued. “Everything that happens before in the trial proceedings is something that makes a positive contribution to the search for justice.”

The defence teams yesterday declined to offer their positions on how to handle the severance order, saying they would first consult with their clients before weighing in on Wednesday morning, when court resumes.

To contact the reporter on this story: Stuart White at [email protected]