Defense Team Says Court Denied Khieu Samphan a Fair Trial

The defense team for Khieu Samphan came out swinging at the Khmer Rouge tribunal on Friday, beseeching the public not to turn a blind eye to what they said was unashamed bias toward the prosecutors’ case and closing statements, which went beyond the scope of the trial.

Taking the lead as hearings opened, Co-Lawyer Arthur Vercken also became the first party to be admonished by Trial Chamber President Nil Nonn at this stage of the trial after he lambasted the prosecution and Trial Chamber judges, accusing both of pandering to the court’s financial donors who are expecting guilty verdicts, and of ignoring his client’s fair trial rights.

Mr. Vercken said the November 2011 severance of Case 002 into small, separate trials meant that the limited scope of this part of the case—the Pol Pot regime’s evacuation of Phnom Penh in 1975 and forced transfer of people in two phases, as well as the later inclusion of the executions of Lon Nol soldiers at Tuol Po Chrey—was not honored by the prosecutors in summing up their case against his client.

“Let us focus on what the prosecutors said—we will find that in two key areas of this trial, the prosecutors asked the chamber to rely on facts that are outside the scope of the trial to find Mr. Khieu Samphan guilty and sentence him to life imprisonment.”

He said these two areas are the overarching charge of crimes against humanity and prosecutors’ allegations that Khieu Sam­phan was part of a “joint criminal enterprise.”

“In order for us to say the underlining crime is a crime against humanity, it must have been committed systematically against a population and on discriminatory grounds,” Mr. Vercken said, adding that the scope of this part of the trial does not reach far enough to consider the crime.

“The prosecution says this attack consisted in the enslavement of the entire population at cooperatives and worksites and that hundreds of thousands were imprisoned, tortured and executed in those prisons and in other places, such that there were between 800,000 to 1.3 million dead.

“We are not talking about the same trial here.”

He said the figures that relate to this trial, in terms of death toll, amount to estimates that range between a few hundred to a max­imum of 5,000 for the al­leged killings at Tuol Po Chrey.

And, in addition, he said prosecutors’ inclusions of the supposed discrimination against people of different religions, their enslavement and forced marriage—which were all raised in the prosecutors’ closing statements—were all aspects of the case that also fell out of the scope of the trial.

He said prosecutors had also kept changing their minds as to how the joint criminal enterprise should be characterized.

“How can they talk about 1.3 million people [killed] in a trial where 5,000 is not exceeded? What is happening in this courtroom…? You are convinced that your mission is more important than rules and procedure.”

After likening the prosecution to tourists who put on lawyers’ robes to earn some extra money, Mr. Vercken earned his first warning of the day from Judge Nonn, but he continued to press the chamber on the question of its conduct.

He said prosecutors were “ridiculing a legal system that’s al­ready quite weak,” and “if this trial is focused only on a sentence, we must stop it immediately.”

Judges need to be chosen on the basis of their proven ethics and career, he said, before reminding the five-judge panel that they do not have the power to circumvent or “escape” the rules.

“These rules are greater than you. You are not expected to modify them as some kind of government formed by judges,” he said.

Mr. Vercken said the public should be appalled that the trial has proceeded without affording Khieu Samphan an opportunity to be fairly judged.

“The truth is, at the end of this trial, we believe either you will abide by the law and acquit or sentence him and there will be a violation of basic principles of criminal law. There is no halfway. This situation is not a strategy from the defense. You decided to sever the case.”

His colleague, Anta Guisse, summed up her thoughts on what the general consensus was in and outside the courtroom: “Convict them quickly before they die,” she said.

“We are no longer naive. We are aware the donors would like the case to ply its course. We know all that what’s expected of you is a guilty verdict. There is not a single person, if we are all honest, who is expecting any judgment other than conviction.”

But the rights of the accused should not be set aside in reaching a premeditated conclusion, she said, which has reduced the court to nothing more than a “sideshow.”

In Khieu Samphan’s defense, Ms. Guisse said Cambodia suffered heavily under years of American bombings and that her client’s intent was to restart the agricultural economy that had been all but decimated.

“He had a commitment and journey that doesn’t at all tally with what the prosecution has written,” she said. “The suffering and abuse does not correspond to the instructions that were given. If we want to look at this case clearly, we must cast aside preconceived ideas and look at the facts.

“Are we here to confirm a bias that he is guilty before the trial even starts?”

Khieu Samphan’s national lawyer, Kong Sam Onn, said Khieu Samphan was “a gentleman who has been painted as a devil.”

“The choices made by Khieu Samphan, either good or bad, were made with the purpose of promoting the people of Cambodia.”

The defense team will continue closing statements on Monday and Khieu Samphan is scheduled to personally address the court next week.

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