Judges at the Khmer Rouge tribunal on Friday issued their reasons for a controversial severance order, a full month after they made a brief oral announcement that the division of Case 002 would stand, untouched.
Ruling that “further expansion of the scope of Case 002/01 does not represent a prudent exercise of the Chamber’s trial management discretion”, Trial Chamber judges declared that the severance remains necessary “in the interests of justice”.
With the court dogged by the mounting health concerns of the defendants and dwindling foreign funding, the judges argue any decision that could prolong proceedings must be nullified.
Judges severed Case 002 into an unknown number of mini-trials shortly before the case against the regime’s top living leaders began in 2011, drawing criticism from lawyers and rights monitors alike for failing to ensure the first – and likely last – mini-trial was representative of the crimes committed by the Khmer Rouge.
In February, the court’s highest body ordered a reconsideration of the order, saying it lacked reasoning and erred in law. Over the course of three days, prosecutors and the defence sparred over the case’s scope, with the former asking for a more “representative” crime site – S-21 – to be added and the latter arguing that hearing anything short of the full case would be a potential violation of rights.
In the end, neither argument appeared to have held much weight with the Trial Chamber judges, who offered no change to their initial decision.
“In essence, the SCC, lead co-lawyers and co-prosecutors seek a trial that is both representative, but which concludes within the shortest possible time. In practical terms, however, the length of a trial is directly related to its scope,” they write, in their 74-page decision dismantling all alternate requests.
Arguing that “forced movement perhaps constitutes the only theme in the Indictment to have involved or directly affected the entire Cambodian population”, the judges shot down the prosecution’s request.
“[T]he addition of S-21 to Case 002/01 may risk a substantial or indeterminate prolongation of trial proceedings,” they write, noting that the estimate handed down by the prosecution of how much longer it would take should the notorious security centre be added “is highly variable and uncertain”.
The Chamber appeared to have few other options at this point, said Open Society Justice Initiative trial monitor Heather Ryan.
“In a decision of how to manage a trial, a court has to give weight to pragmatics. I don’t think they’re giving undue weight to pragmatics in this case,” she said yesterday.
In March, defendant Ieng Sary died following weeks of hospitalisation and rapidly deteriorating health.
The same month, doctors testified that his co-defendant Nuon Chea faced a precarious health situation. A third defendant, former Social Affairs Minister Ieng Thirith, was last year released from custody after her dementia grew so acute the court ruled her mentally unfit to stand trial.
Only former head of state Khieu Samphan has remained relatively healthy over the years, though he too has been repeatedly hospitalised.
“If they were to extend the trial to include more crime scenes and [as a result] there were no verdicts against Nuon Chea, the criticism would be tremendous,” pointed out Ryan.
At the behest of the SCC, judges for the first time published a tentative list of future mini-trials.
Dividing the indictment in three, the decision calls for a Case 002/02 that would focus on the policies that allowed for security centres, execution sites and the alleged genocide of the Cham and Vietnamese. Case 002/03, meanwhile, would address – among other crimes – cooperatives and worksites, treatment of Buddhists and forced marriage.
Stressing that it was highly theoretical, judges promised to hold a trial management hearing before the end of the year.
International co-prosecutor Andrew Cayley said the team was considering “further steps” in the wake of the decision.
“As I have always said, I do not believe that there will be further trials after this trial segment, which is why we have consistently sought to expand the scope of the trial to include a small representative part of the two million Cambodians who were murdered, starved or worked to death between 1975 and 1979,” he wrote in an email.
“The Trial Chamber disagrees with this position but rest assured in the [Office of the Co-Prosecutors] we will do what needs to be done and what is right.”
Anticipating appeals, however, judges speak in no uncertain terms about their chances.
“In the interests of certainty . . . no further extensions to the scope of Case 002/01 trial shall be entertained,” they write.