Former Khmer Rouge leader Nuon Chea, 81, on Thursday asked Khmer Rouge tribunal judges to let him out of jail, where he has been held since his Sept 19 arrest.
“I have no intention to flee my beloved country,” he said, rising with the help of two guards.
But the debate about the merits of Nuon Chea’s pretrial detention was derailed in the morning session by a prolonged discussion of civil party rights.
The Extraordinary Chambers in the Courts of Cambodia is unique among international tribunals for the degree of victim participation it allows. The International Criminal Court in The Hague is the only other court to accord victims comparable powers.
Nuon Chea’s attorneys argued Thursday morning that civil parties should only be allowed to participate in proceedings in which they can demonstrate they have a vested interest.
The prosecution and lawyers for the civil parties urged the court to allow for broad civil party participation.
The surprise debate sent the judges of the Pre-Trial Chamber into a flurried conference on the bench, and they called for two recesses to deliberate. Neither the defense, prosecution, nor the civil parties present wanted to call for another adjournment—Nuon Chea’s hearing, originally scheduled for Monday, had already been delayed once due to a tussle over Dutch defense attorney Victor Koppe’s certification by the Bar Association.
Ultimately, judges decided to let the hearing proceed with the civil parties present, and vowed to resolve the issue in the not too distant future.
Theary Seng, one of four civil parties represented at the hearing and the director of the Center for Social Development, said the idea that victims don’t have an interest in whether Nuon Chea remains in jail was “personally offensive.”
“Whether Nuon Chea can be ensured to be in the legal process is of great interest to civil parties and victims. Without his presence, there would be no case,” she said.
She said she’s looking forward to addressing the court today. “It’s deeply satisfying that I’ll have my day in court,” she said.
After lunch, the crowd streamed back into the courthouse. Apples and water bottles had been confiscated, but a switchblade made it past the metal detectors and wand-waving guards.
In the afternoon session, Nuon Chea’s lawyers argued that the court should throw out early testimony from their client. They say it was taken despite the fact that Nuon Chea hadn’t properly waived his right to counsel—one of the foundations of international justice.
Koppe said that notes from an interview between Richard Rogers, the deputy head of the court’s Defense Support Section, and Nuon Chea make clear that his client was not fit to stand questioning the day of his arrest, much less make an informed decision about his right to an attorney.
Reading from the confidential interview notes, Koppe said Nuon Chea told Rogers: “I am not fit to take part in a hearing…. Please persuade them to give me time to rest. I am exhausted.”
The defense also argued that Nuon Chea should be let out of jail. Nuon Chea’s Cambodian attorney, Son Arun, said there was no evidence to suggest that his client would intimidate victims and witnesses, destroy evidence, flee, or disrupt the public order—all reasons for which someone can be detained at the ECCC.
“Mr Nuon Chea is also one of the victims of the regime,” he said. “He has lost his family members—almost 40 people.”
Koppe urged the court to maintain the presumption of innocence, reminding judges that what historians think they know, jurists must still prove. He said that in certain passages of their decision to keep Duch in prison, judges seemed too certain of facts that have yet to be established within the courtroom.
“These remarks seem to suggest opinions have already been formed on core issues in the case,” he said, adding that for his client, “we must presume at this moment in time that he is, indeed, an innocent man.”
Prosecutors maintained that Nuon Chea had rejected his right to a lawyer quite clearly, on three separate occasions.
They said the defense’s depiction of Nuon Chea as a frail and frightened old man was misguided. They portrayed him as not only quick-witted, but strong-willed, behaving in his initial interviews with the brio of a leader versed in the arts of persuasive public speech.
“We saw a former political leader used to speeches, righteous in his belief he had done nothing wrong,” Co-Prosecutor Robert Petit said.
Prosecutors said they worry the tribunal might stoke old hatreds that could endanger Nuon Chea, now that he has been arrested and doesn’t seem quite so untouchable.
Prosecutors also alleged that Nuon Chea had explicitly asked Duch to destroy evidence, adding that four witnesses had said in interviews that they feared retribution.
“They said they had been intimidated. They feared for their personal security,” Co-Prosecutor Chea Leang said.
She added that extra-judicial revenge was a real possibility, particularly in light of the limited education of many villagers.
It was unclear what all the references to subparagraphs and decimal divisions of legal rules meant to the hundred-odd villagers who watched the proceedings from the auditorium Thursday, slipping their feet in and out of plastic sandals.
Chuon Choeun, 30, a farmer who wore an old blue and white striped shirt, had never seen Nuon Chea before.
He said he had expected Nuon Chea to look more brutish, somehow. “His face looks fine. He’s not nasty. His face is finer than mine,” Chuon Choeun said.
Nuon Chea’s bail hearing will continue today at 9 am. The tribunal’s UN Public Affairs Officer Peter Foster said a decision is not expected for at least a week.
