ECCC Struggles to Dispose of ‘Extra’ Charges Against Leaders

After Nuon Chea and Khieu Samphan, the two most senior surviving leaders of the Khmer Rouge regime, were convicted of crimes against humanity last month, largely for their roles in forced evacuations, attention turned to the next phase of their trial, which will deal with a more representative selection of crimes.

But judges and lawyers at the Extraordinary Chambers in the Courts of Cambodia (ECCC) are also trying to deal with a vexing legal question that has gone largely overlooked: What can and should be done about the “extra” charges that aren’t included in either of the two phases?

The case against Nuon Chea and Khieu Samphan has been divided into smaller portions in an effort to speed up the trial process. The second trial phase, known as Case 002/02, will begin later this year, covering crimes including genocide, forced labor and political purges.

But a number of additional criminal accusations and crime sites will almost certainly remain unadjudicated. These include some nine execution sites and security centers, the Prey Sar forced-labor worksite, crimes against humanity committed during incursions into Vietnam, and forced evacuations from the Eastern Zone of Democratic Kampuchea.

The tribunal’s Supreme Court Chamber has repeatedly instructed the Trial Chamber to create a coherent plan for how to deal with these charges, but trial judges have appeared to dawdle in making any decision on the issue.

“[T]he status of the remaining charges remains unclear due to the Trial Chamber’s repeated indecision regarding charges remaining outside the scope of a severed trial not currently underway,” the Supreme Court Chamber said in a ruling issued in late July.

The ruling admonished the Trial Chamber for “provid[ing] no plan whatsoever to deal with the charges remaining outside the scope of Case 002/02.”

The most obvious way to deal with extra charges that are unlikely to be aired in court is simply to drop them. There is no provision in the court’s Internal Rules for this, but six months ago, ECCC prosecutors proposed a rule change that would allow judges to withdraw criminal accusations from a case.

Although prosecutors asked for the issue to be dealt with as soon as possible, judges on the court’s Rules and Procedure Committee (RPC) have still not made a decision on whether to recommend the change, nor has a plenary session of judges been called. Such a session—which is the only way court rules can be amended—has not been held since September 2010.

Lars Olsen, a spokesman for the court, said the RPC would soon finish its deliberation on the rule change.

“If the RPC recommends a rule amendment, a plenary will be scheduled,” he said.

Other ways to deal with the extra charges would be to convene a second panel of trial judges to hear them, or for the Trial Chamber to simply exercise its own authority to withdraw the charges, based on precedent in international jurisprudence. In its July decision, the Supreme Court Chamber said any of these routes would be acceptable, but noted that the Trial Chamber has an obligation to “bring closure” to the case as soon as possible.

Anne Heindel, a lawyer and the co-author of a recent book about the ECCC, “Hybrid Justice,” said the Trial Chamber was shirking its responsibility to deal with the issue in a timely fashion.

Ms. Heindel noted there was international precedent for withdrawing charges, and that the Supreme Court Chamber had authorized the Trial Chamber to draw on this precedent.

“The Trial Chamber keeps refusing to make this decision…It’s a total deferral or disregard of their responsibility,” she said.

“The accused have a fair-trial right to know which of the charges they will be required to confront, and the civil parties have a right to know if their harms will ever be addressed.”

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