On Wednesday, the Supreme Court at the Khmer Rouge tribunal will issue the final verdict in the first phase of the trial against the regime’s most senior surviving leaders, Nuon Chea and Khieu Samphan.
Though the decision ostensibly represents a degree of closure, observers maintain that the court’s legacy remains a mixed bag, regardless of the outcome.
The long-awaited ruling on appeals filed by Chea, the regime’s former Brother Number Two, and Samphan, its head of state, comes more than two years after the pair were sentenced to life imprisonment in 2014 for crimes against humanity, and five after the trial began.
Both the defendants and the prosecution appealed that initial conviction. The defence teams sought an acquittal, claiming the trial chamber had made a litany of errors of both fact and law. In addition, Khieu Samphan’s defence requested that if he is not acquitted, his sentence be reduced.
The prosecution, on the other hand, appealed the court’s decision to not use the third and most extended form of the Joint Criminal Enterprise (JCE) legal doctrine. While prosecutors were restricted to employing a more narrow interpretation of the doctrine, JCE III would have allowed them to hold the accused accountable for crimes they could have “reasonably foreseen” resulting from their plans.
Speaking to reporters yesterday, court spokesman Lars Olsen stressed that Nuon Chea and Khieu Samphan are “presumed innocent until proven guilty”, and fielded questions about the “constant challenge” of funding the expensive tribunal, as well as questions regarding the length of the trial for the elderly defendants.
“Simply because the accused are old, that is not an excuse to cut corners and infringe on their rights to get a fair trial,” he said. He added that even if the convictions and sentences are upheld on Wednesday, the pair would likely remain in detention at the tribunal – as opposed to being moved to a permanent facility – until the second phase of the trial against them, which includes charges of genocide, is concluded.
Since Case 002 began in November of 2011, two of the co-accused were excluded from the proceedings. Former foreign minister Ieng Sary died in 2013, and his wife and co-defendant, former minister of social affairs Ieng Thirith, was severed from the proceedings after being deemed unfit to stand trial due to advancing dementia. She later died in 2015.
But looking beyond Case 002, John Ciorciari, an American legal scholar who has acted as an adviser to the Documentation Center of Cambodia (DC-Cam), believes the court will have a mixed legacy, partially due to political meddling, structural flaws, and a desire to appease victims.
In a recent interview, Ciorciari said the trial must be viewed “in part through the prism of CPP politics”. While he argued the ruling party has a vested interest in bringing Khieu Samphan and Nuon Chea to justice, he also said they have “tried to control and manage, frustrate and delay” Case 003 against Meas Muth and Case 004 against Yim Tith, Ao An and Im Cheam.
“Cases 003 and 004 would contribute meaningfully to the court’s legacy . . . [and] would ultimately reflect the decision of the court rather than outside influence,” he said.
He also pointed out certain structural flaws in the design of the court itself, some of which have contributed to the extraordinary length of the trial.
Ciorciari criticised the decision to split the prosecutor’s office into separate national and international offices, and said he would have preferred the prosecution and defence to be permitted to conduct their own investigations, rather than judges acting as the investigators. The flaws, however, were ultimately a facet of the court’s intrinsic structure, which incorporated both civil and common law elements.
Ciorciari also claimed the court has sometimes compromised its “explicit” purpose of delivering justice through impartial due process in order to achieve its “implicit” mandate of appeasing the victims of the regime.
The legal expert questioned the wisdom of allowing civil parties to give impact victim statements while the court was deliberating the appeal, and thought it was especially inappropriate that some of these statements were referenced in the initial verdict.
Victor Koppe, the international defence lawyer for Nuon Chea, took a less balanced approach to his analysis of the court’s legacy.
“Unfortunately the legacy will be non-existent,” he said in an email on Saturday, going on to claim that even if his client is ultimately acquitted, the trial would still be “a complete farce”.
Like Ciorciari, Koppe aimed criticism at political meddling, but also took a jab at the perceived “deep bias” of the court itself.
“For nine years the ECCC has been slavishly following the narrative of a handful of biased Anglo-Saxon academics and journalists, and that of the people in power in the present government, many of them former Khmer Rouge commanders themselves. Why this $250,000,000 trial if you just want to copy and paste conclusions from books or adopt the Vietnamese communist version of history?” Koppe wrote.
“What are they even doing in that court room other than vehemently supporting the prosecution and making sure there is enough incriminating evidence?” Koppe asked of the judges.
While Ciorciari has his own criticisms of the court, he said he believes the Chea defence team’s strategy of undermining the legitimacy of the court is a harmful one.
“There have been occasions where defence lawyers have used tactics that I thought were too heavy on theatre,” he said, explaining that the court is meant to be a “model process”.
Lead international co-prosecutor Nicholas Koumjian, for his part, echoed part of Ciorciari’s structural critiques, saying the current design had indeed led to a slower-than-usual trial process.
As for attacks on the court’s legitimacy, however, they are neither novel nor particularly noteworthy, he said.
“All international courts have had to deal with this,” he said, claiming it was “hardly a unique strategy”.
“They may feel they don’t have a chance in a legal sense . . . so they attack legitimacy of the sentence instead,” Koumjian added.
While Koppe may see the trial as an unequivocal failure, Koumjian and Ciorciari said they still saw positives in the legacy the court will leave behind.
Ciorciari cites the trial as a tremendous source of experience for a new generation of Cambodian lawyers and judges. He also lauded the public nature of the trial, and ultimately concluded that the “defence had a fair shot”.
Koumjian – who also praised the public access to the goings on of the trial – also said the trial could serve as a beacon of justice in a country often plagued by accusations of injustice.
“It’s a very natural human instinct to have what happened to you be recognised . . . it makes people believe they live in a society where justice is possible,” he said.