Nuon Chea and Khieu Samphan woke on Friday as guilty men, sentenced to life in prison on Thursday for crimes against humanity by a panel of judges at the Khmer Rouge tribunal, whose decision will eventually be either upheld or reversed by the Supreme Court Chamber when both legal teams file appeals.
The case against them, which was split into smaller, more manageable trials in 2011, will now press ahead, but with mixed feelings among interested parties as to whether or not the former Khmer Rouge leaders can be tried fairly in a genocide case by the same judges who convicted them in the first.
Speaking to reporters after the verdict on Thursday, defense lawyers for Nuon Chea said their “highest priority” would be to seek a recusal of the judges, who they said would not be impartial in their adjudication of the next phase of Case 002. One of those judges, Silvia Cartwright, tendered her resignation in June, and will be replaced by Reserve Judge Claudia Fenz.
On Friday, Nuon Chea’s international defense lawyer, Victor Koppe, said that motion would be filed soon with the Supreme Court Chamber.
“It’s a unique situation that they have maneuvred themselves into,” he said. “It’s a genuinely inconceivable that they can switch off and really look at this without any bias. I think it’s impossible.”
The charges in the next portion of the trial relate to criminal accusations of genocide, internal purges and rape, as well as a number of crime sites around Cambodia.
In a decision released by the Supreme Court Chamber last week in response to an appeal of severance made by the legal team for Khieu Samphan, judges said that using the same panel in a second trial could result in bias.
“Where…the same judges consider and determine multiple counts against the same accused, questions arise regarding judicial impartiality, to the extent that adjudicating a portion of charges may in the same or subsequent trials cause a bias (or appearance of bias) against the accused or a bias resulting from having made findings of fact relevant to the other case, a concern, as previously signaled, contemplated in international jurisprudence and municipal systems,” it said.
Mr. Koppe said, therefore, that the Supreme Court Chamber judges may be “quite inclined to be receptive to the bias argument” in his team’s motion, which will be filed within the coming days.
“But the thing is, it will take a year before we have a decision, meanwhile we will go ahead” with the proceedings, he added.
Arthur Vercken, a defense lawyer for Khieu Samphan, said the team has yet to decide whether or not they will also seek a recusal.
International Co-Prosecutor Nicholas Koumjian said parties to the proceedings had been asked in November if they would seek a recusal of the panel, but that prosecutors declined.
“In a case like this, in my view, there is absolutely no bias when judges make a decision that parties don’t like if it is made in a fair process and applying law to evidence,” he said. “During trials, judges make decisions…. There’s no basis to recuse judges for bias when they make decision based on law and evidence after hearing from the parties involved.”
Court monitor Heather Ryan, who works with the Open Society Justice Initiative, said after the verdict on Thursday that the next phase of the case against Nuon Chea and Khieu Samphan “certainly presents a practical challenge.”
“What you have to do is rely on the professional integrity of judges, who stand back and say, ‘I’m not going to assume guilt just because of these earlier findings,’” Ms. Ryan said.
“I know that’s not easy and in a way, there’s a little bit of falseness to it. But it’s sort of the best we have. I don’t think the problem is necessarily worse having the same judges than having completely new judges, because they would know the judgment, they would have the same facts to go on and you’d have similar problems.”