The first hearing of the Khmer Rouge tribunal’s Case 002/02 was to be held today, marking the start of the sub-trial in which the gravest charges levied against the Democratic Kampuchea regime’s senior-most leaders will be heard.
With Case 002/01 – the first sub-trial in the court’s case against Khmer Rouge leaders Nuon Chea and Khieu Samphan – having wrapped up last year and a verdict due on August 7, the court is to begin today to hammer out the logistics of hearing much of the remainder of the Case 002 indictment.
While Case 002/01 drew criticism for its relatively narrow focus, the scope of the case beginning today will include the allegations most commonly associated with the regime in the popular discourse.
Charges relating to genocide against the Vietnamese and the Cham, security centres such as the notorious S-21, the persecution of Buddhists and forced marriages and rape – among others – will all be on the table.
Much of the hearing, according to court legal communications officer Lars Olsen, will concern itself with setting that table.
“The parties will be invited to submit their views on the proposed witnesses from various parties. They will be discussing the sequencing of the trial; that is, when the different allegations will be heard.
And there will also be a discussion of the availability of the parties in terms of when they can start the evidentiary hearings,” Olsen said.
Under the prosecution’s proposed sequencing plan, Case 002/02 would “be divided into phases that focus on different joint criminal enterprise policies”, according to a May filing. The first segment would deal with the role of the defendants, before proceeding on to security centres, the treatment of the Vietnamese and Cham, worksites and, finally, forced marriage.
“The main point we wish to get across is that we are pleased that the Chamber has the second trial officially underway,” prosecutor William Smith said in an email yesterday. “We will assist it as much as we can to accomplish all the necessary practical steps to start the evidentiary hearings as soon as possible.”
The Khieu Samphan defence, however, has contested the characterisation that its client was involved in a joint criminal enterprise (JCE), and will have the opportunity to make its case again. According to Olsen, the Samphan team will be permitted to make a submission seeking clarification on the extent to which Case 002/01 will serve as a foundation for 002/02.
In the previous case, the prosecution repeatedly argued that the policies of the JCE to which the defendants belonged had resulted in the catastrophe of Democratic Kampuchea. If Case 002/01 is indeed to serve as a foundation in Case 002/02, a guilty verdict in that case could colour the evidence to be heard in the upcoming one.
However, Samphan defender Arthur Vercken argued in an email yesterday that the scope of Case 002/01 was too narrow to arrive at such a conclusion, and to do so would be to sacrifice justice “to the new god of emergency”.
“[A] condemnation on a global JCE, more than a strategical problem, would be a huge judicial [heresy],” Vercken said.
According to Olsen, parties today will also have a brief period to argue against particular allegations they may take issue with – that a charge of genocide, for example, should instead be classified as wilful killing.
“If the parties intend to make suggestions that some of these crimes should be classified as something other than what they are in the closing order, they will have time to do that,” Olsen said.
Civil party lawyers, he added, will also have the opportunity to make submissions on proposed reparations projects aimed at addressing the harm caused to victims by the regime’s policies.
Civil party representatives did not respond to requests for comment as of press time yesterday, but ideas such as providing access to mental health services, and vocational training for the children of forced marriages have been floated at recent planning meetings.
Though today’s hearing represents the start of a trial that many believe will be a years-long process, the uncertain situation of the court’s government-opposed Cases 003 and 004 has left some wondering whether Case 002/02 will be the tribunal’s last gasp.
“The definition of genocide justice is not defined by either the old or new trial,” said Youk Chhang, executive director of the Documentation Center of Cambodia, whose research has been instrumental in the trial. “However . . . to many survivors, the curtain of the ECCC is being closed, and perhaps this is the end. It is a mix-feeling between despair and hope.”