In a pair of decisions rendered Friday morning, judges at the Khmer Rouge tribunal ruled 86-year-old Brother Number Two Nuon Chea fit to stand trial and kept the scope of the current case against him and former head of state, Khieu Samphan, identical to what they had set previously.
Judges also announced that eleventh-hour funds had come through for the cash-strapped national side, averting a large-scale strike planned for Monday.
Last month, the court’s highest body ordered the Trial Chamber to reconsider its highly criticised decision to sever Case 002 into a series of mini-trials, saying it lacked reason and erred in law. Raising concerns the judges operated beyond their discretion when they divided the indictment shortly before proceedings began in 2011, the Supreme Court Chamber ordered that input be sought from all parties.
During several days of hearings, the prosecution and defence sparred over the scope, with the latter calling for the case to be heard in full and the former asking that S-21, a crime site more representative of the charges against the accused, be added to the mini-trial.
At Friday’s hearing, Trial Chamber president Nil Nonn announced the scope of Case 002/01 would be confined “to charges related to forced movement of population, phases 1 and 2, and executions at Toul Po Chrey.”
The parameters are the same as those issued before the Supreme Court Chamber ruling, and the failure to ultimately expand Case 002/01 disappointed both court monitors and the prosecutors.
“I always felt that the victims would be better served by including a reasonably representative example of the most serious criminal episodes of the time - mass killing - in Case 002,” said international co-prosecutor Andrew Cayley, adding that it was difficult to comment before seeing the written decision.
Speaking for less than 20 minutes, Nonn issued only brief oral summaries of the decisions, saying the full rulings would be forthcoming.
“I certainly believed at the time that the law was very, very strongly on the side of the OCP, and I felt that the application that we made was a very modest and reasonable one.”
But, he noted, “nothing surprises me any longer in this court. Rest assured the OCP will press on with this case.”
Long Panhavuth, a program officer at the Cambodian Justice Initiative, called the ruling “sad” and said it appeared to be a case of the Trial Chamber looking to shore up their legal reasoning more than anything else.
“I think this is a fair decision and we have to respect it. But I think it is sad… The Trial Chamber just did everything to justify their [previous] decision of the severance without taking into account the best interests of the accused and victims.”
Likely, said Panhavuth, the judges were taking into account the very real health concerns of Nuon Chea, as well as budgetary woes, “but that doesn’t preclude the Trial Chamber from staging a fuller case against Khieu Samphan.”
“I hope that they would be more creative to ensure justice is served.”
In its order, the Supreme Court Chamber noted that the lower body made no effort to figure out the scope of future mini-trials, thus insinuating the first would be the last.
Cautioning that without the full ruling, little could be assumed, Open Society Justice Initiative tribunal monitor Heather Ryan noted the decision could pave the way for future cases.
“The Trial Chamber had a number of difficult but competing considerations in evaluating the severance decision--including the desire to arrive at some judgment while the remaining accused are alive and fit for trial--and we can only hope that this first phase trial in Case 002 is not the final one. “
Nuon Chea, who has remained largely bedridden for the past several months, was absent from today’s hearing due to ongoing health concerns. Despite his chronic heart ailments, back problems and hypertension, doctors on Monday testified that Nuon Chea was both mentally and physically fit to stand trial. His lawyers had asked that he not be ordered to participate until his conditions were fully treated.
“Not withstanding the advanced age and frailty of accused and the accused’s precarious physical health, the testimony of the medical experts clearly indicated that accused remains capable of participating in his own defence,” Judge Nonn announced Friday morning, before confirming its earlier ruling that the octogenarian remains fit to stand trial.
Hearings will resume April 8, said Judge Silvia Cartwright, explaining that they had been pushed back a week after the national side on Thursday night threatened a strike beginning April 1 over four months of unpaid salaries.
A scramble to avert the strike, however, appeared to have been successful, with “the coordinator of UNAKRT [informing] the international judges that funding for the national staff has been secured through the end of April and that ongoing discussions are underway to stabilise funding from that point on,” said Judge Cartwright.