With one of his lawyers unable to speak, the Extraordinary Chambers in the Courts of Cambodia on Monday postponed a hearing on whether to release Brother Number 2 Nuon Chea ahead of trial.
Defense attorney Son Arun, part of a three-man team which until Friday had been the tribunal’s most active and aggressive, called for the delay, saying that the defense had been handicapped by the failure to have one of its members admitted to the Cambodian bar.
Making his first courtroom appearance, Nuon Chea, 81, who is the most senior surviving member of the Khmer Rouge, appeared sharply alert, making eye contact with the audience and occasionally taking notes.
One of his international defenders, Dutch attorney Victor Koppe, was penalized Friday by the Bar Association of the Kingdom of Cambodia, which delayed his admission to the bar after he affixed his signature to a legal brief before being sworn in.
The move caused the court’s five-judge Pre-Trial Chamber to decline to hear Koppe, who sat mute with his hands folded Monday.
Rising to his feet with the aid of guards, Nuon Chea told the court that he needed both defenders to be recognized.
“If I have only one Cambodian lawyer, then it is not consistent with international standards. And I believe if this proceeding goes ahead it is not fair for me,” he said. “I need two lawyers in accordance with the internal rules of this court.”
Cambodian Co-Prosecutor Chea Leang and lawyers for the four civil parties present all argued that the defense had been notified of the hearing date and already had an accredited foreign lawyer, Michiel Pestman, who is currently in the Netherlands.
Judge Rowan Downing noted that the defense had asked for an adjournment until Pestman could appear but could not say when this would be.
“I need to contact Mr Pestman. I cannot respond exactly when he will be able to come,” said Son Arun.
“For future adjournments, please ensure that such inquiries are made,” Downing responded.
Nevertheless, the judges, after about an hour of deliberations, decided to postpone the hearing to an unspecified date, giving the defense until Wednesday to notify the court as to when Pestman can arrive.
The defense had been planning to argue that the tribunal’s co-investigating judges had questioned Nuon Chea in the absence of a lawyer, a matter that caused both the prosecution and rights groups to express concern.
During a Sept 19 adversarial hearing at which Nuon Chea was charged and ordered to be detained, the prosecution called on the co-investigation judges to be certain that Nuon Chea understood his right to counsel.
In a Dec 13 friend-of-the-court brief, the Cambodian Human Rights Action Committee, a coalition of 23 local rights groups, called on the court to order the hearing to be voided and held again “as it appears that Mr Nuon’s right to counsel has been breached.”
However, the co-investigating judges ruled Jan 24 that Nuon Chea had made an informed waiver of his right to a lawyer at the hearing.
Following the hearing Monday, international Co-Prosecutor Robert Petit, who remained silent in the courtroom, said that had the Pre-Trial Chamber proceeded to hear the appeal without the participation of an international defense attorney, he would have continued his silence.
“If the proceedings had gone forward, I would have stayed where I was. I wouldn’t have exercised the right of audience,” he said. “I think it’s important that this court does have the appearance as well as a substantive equality of arms.”
In a statement released Monday afternoon, CHRAC hailed the initial appearance of the civil parties to the case, including S-21 prison survivor Chum Mey and Center for Social Development Executive Director Theary Seng, calling it a “historical step in international criminal law.”
The tribunal’s newly created Victim’s Unit also said that the parties, who are given procedural rights and may receive reparations, had broken new ground.
“Up to date, no international or hybrid tribunal mandated to investigate war crimes, crimes against humanity or genocide has involved victims as civil parties,” it said in a statement.