KRT’s 2013 will inform next moves

People gather in Malai district earlier this year to pay their respects to the late Khmer Rouge foreign minister Ieng Sary. Heng Chivoan

KRT’s 2013 will inform next moves

The Phnom Penh Post | Christmas Day, 25 December 2013

[Eccc the Clown, still clowning around, ey?  Thought you've disappeared for good]

 
The Clown (Sacrava, 10 Nov. 2011)

The trial chamber of the Khmer Rouge tribunal yesterday issued its plans for the second, and likely final, phase in the case against the regime’s senior leaders, offering an understandably tentative look to the future after a momentous and turbulent year at the court.

Since 2013 began, the court has lost both a defendant and a prosecutor, has been challenged on, and successfully defended, a controversial ruling to sever its flagship Case 002 into sub-trials, and endured delay after delay caused by financial constraints and the failing health of the accused.

Now, even as it looks to chart a way forward, 2013 will loom large over the court’s work, and its legacy.

The single most impactful event of the year – and the one that set the court on its current course – was the closing of evidentiary hearings in Case 002/01. 

The first sub-trial in the court’s flagship case, 002/01 took more than 18 months, and saw testimony from 92 witnesses, civil parties and experts. However, the process was fraught with tumult.

In March, the death of defendant Ieng Sary, formerly the minister of foreign affairs under the Democratic Kampuchea regime, prompted vigorous calls for the court to hasten its proceedings from all corners, particularly from victims.

“At the moment, I don’t have any hope of getting justice,” S-21 survivor and civil party Chum Mey said on the day of Sary’s death. “[Fellow defendant] Nuon Chea is also old and sick, and I’m afraid that he might have the same fate as Ieng Sary.”

Those calls have persisted, with some 200 civil parties only two days ago issuing a joint statement to the court “affirm[ing] that we want the trial on the evidence in Case 002/02 to start as soon as possible”.

A participant at the meeting that produced the statement, 59-year-old civil party Nhek Sam Oeun, said on Monday that the sense of urgency was due to the fact that, like the defendants, “we are old”. 

“We can’t wait anymore,” he said.

Sary’s dementia-stricken wife, Ieng Thirith, was found unfit to stand trial in 2012, and only co-accused Khieu Samphan has remained in fairly good health, though he, too, has been hospitalised on multiple occasions.

Arguments in court have also fixated on the timeliness of the next trial, with a trial management meeting this month devoting much of its time to the question of whether it would be quicker for a new panel of judges to hear Case 002/02 while the current panel writes the verdict in 002/01.

Panhavuth Long, a program officer with the Cambodian Justice Initiative, said yesterday that the outcry over the death of Sary was an important message to the court.

“The death of Ieng Sary brings up two things,” he said. “First, it brings disappointment to the victims. But it is also a significant reminder to the trial chamber and to the donors that people would like to see the trial go faster so that the court can achieve a judgement while the two are still alive.”

Perhaps tellingly, the abbreviation “ASAP” appears 10 times in the trial chamber’s three-page tentative schedule for the Case 002/02 pre-trial process, including in reference to a potential assessment of the remaining defendants’ fitness to stand trial. 

The need for haste also motivated another of the past year’s most important court decisions: the upholding of the severance order that divided Case 002 into sub-trials in the first place. 

The severance order was first made in 2011 on the grounds that shorter sub-trials were necessary to ensure that judgements on at least some of the charges in the Case 002 indictment could be issued before the ageing defendants died. However, the court came under fire at the time for failing to ensure that the charges in Case 002/01 – which dealt with forced evacuations and an execution site – were representative of all the charges in the indictment, which include genocide and torture, among others.

In February, the tribunal’s Supreme Court Chamber, responding to prosecution challenges to the severance ruling, called on the trial chamber to hold a series of hearings to determine its validity.

Though the prosecution argued again for the inclusion of more representative charges, the trial chamber upheld the severance order – unchanged.

“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,” then-prosecutor Andrew Cayley wrote in an email at the time. 

“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.”

Nuon Chea during the first day of the closing statements in Case 002/01 at the Khmer Rouge tribunal in Phnom Penh in October. ECCC

Several months later, however, Cayley resigned, leaving his replacement, Nicholas Koumjian, to formulate submissions on the scope of Case 002/02, which he made in a trial management meeting
earlier this month. 

At the time, Koumjian argued for a Case 002/02 that would encompass all of the remaining charges in the indictment, if not all of the related crime sites.

“If a plan of this type is accepted, we have argued there would be no need for a Case 002/003” and victim participation would be unaffected, he later explained in an email.

According to the trial chamber’s new work plan, parties will be required to make their submissions on scope by January 15, with hearings on the matter scheduled for February 11.

Observers and those within the court itself, however, have raised questions about how long the court will be able to sustain itself into the new year, especially given the repeated funding crises of 2013.

The court came more or less to a standstill during not one, but two worker strikes brought on by unpaid wages among Cambodian staff. In the latest strike, which ended in September, workers went unpaid for some three months before an emergency loan from the UN brought an end to the walkout – as it had to a previous strike in March.

Uncertainty also abounds over the futures of government-opposed cases 003 and 004, even more than one year after the appointment of new co-investigating judge Mark Harmon. 

“There is no information as to the progress in Case 003 and 004,” Panhavuth said yesterday. “[The defendants] don’t know whether they are still suspects or whether they have been charged.”

Though lawyers were recently appointed to the two remaining suspects in Case 004 who were still unrepresented, news on the cases’ progress is in short supply. However, Panhavuth said, yesterday’s filing from the trial chamber indicated that in the coming year, the court could be moving away from the mistakes of the past.

“It’s a very positive step today that the trial chamber has issued a schedule and several of the legal requirements that they need to touch on before they start the hearings,” he said. “It was absent [after the first severance decision] in 2011 . . . but now the TC is moving in the right direction. I hope they are not dragging their feet again.”