After more than a year of investigation, the Khmer Rouge tribunal has failed to justify the continued detention of Brother No 2 Nuon Chea, or to collect evidence that could implicate him in crimes occurring outside of the S-21 detention center, defense lawyers have argued.
Over defense objections, the court’s co-investigating judges last month renewed Nuon Chea’s detention for a further year, saying that former S-21 director Kaing Guek Eav, better known has Duch, had implicated Nuon Chea in crimes occurring at the detention center and that conditions for his detention, such as preventing witness tampering and preserving public order, remained valid.
However, in an appeal filed Thursday, defense lawyers Son Arun, Michiel Pestman and Victor Koppe said the brief new detention order—which they called perhaps the judges’ “least articulate order to date”—had failed to show that such conditions still exist or to explain how they justify a second year of detention.
Foreign and international case law holds that the burden of justifying detention gets higher as its length increases, they added.
Though prosecutors say Nuon Chea bears responsibility for more than 20 different crimes allegedly occurring in 26 locations throughout Cambodia during the Khmer Rouge era, investigators have only cited evidence which could link Nuon Chea to S-21, the defense said.
“Of the witnesses interviewed […] [apart from Duch], none appear to have implicated Mr Nuon in any criminal activity,” they wrote, adding that this is not by itself enough to justify keeping Nuon Chea in a cell, rather than under house arrest.
In an analysis of the new detention order, Anne Heindel, a legal adviser to the Documentation Center of Cambodia, wrote that co-investigating judges Marcel Lemonde and You Bunleng should have explained how and why conditions requiring Nuon Chea to stay in detention continue to exist.
However, the court’s Pre-Trial Chamber “will likely determine that the burden is on Nuon [Chea] to convince them why his detention is no longer justified,” she wrote.