Today’s bail hearing for former Khmer Rouge head of state Khieu Samphan will be held almost entirely behind closed doors, as his defenders have chosen to challenge confidential evidence, a tactic the prosecution said Tuesday was out of place at the pretrial stage.
Though previous bail hearings for S-21 prison director Kaing Guek Eav, aka Duch, and Brother No 2 Nuon Chea were held almost entirely in public, the Khmer Rouge tribunal’s Pre-Trial Chamber decided last month that any discussion of evidence at Khieu Samphan’s hearing would remain private.
After a brief statement of facts, “it is not envisaged that there will be any further public session,” the tribunal’s public affairs office announced Tuesday.
Tribunal Co-Prosecutor Robert Petit said that arguments about the validity of evidence are not relevant to a bail hearing.
“The Pre-Trial Chamber has no jurisdiction to assess the evidence or to determine guilt,” he said.
In addition to assessing whether grounds for detention have been met, the chamber may also review whether evidence implicates a charged person, Petit said. But the chamber is not permitted to question the credibility of that evidence—a duty that falls to judicial investigators and the upcoming trials, he added.
“Innocence or guilt is not to be determined,” Petit said.
Khieu Samphan’s Cambodian defense attorney Say Bory said Tuesday that the Pre-Trial Chamber had nevertheless agreed to hear defense arguments.
“If the Pre-Trial Chamber thought like [Petit], there wouldn’t be any hearing” today, he said. “I think lawyers also know the law, not just prosecutors.”
Say Bory declined to say whether the defense would seek an acquittal at the pretrial stage.
Khieu Sampan’s French defense attorney Jacques Verges declined to comment in advance of the hearing.
Appearing before co-investigating judges in November, Khieu Samphan said prosecutors had not presented evidence to show he was responsible for Khmer Rouge policy and denied having knowledge of much of it.
However Anne Heindel, legal adviser to the Documentation Center of Cambodia, said Tuesday that prosecutors might seek to argue the principle of joint criminal enterprise, in which all members of a conspiracy bear equal responsibility.
The Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia ruled in 1999 that Dusko Tadic was guilty of war crimes and crimes against humanity as part of such an enterprise, and the principle has been relied on by prosecutors many times since.
Heindel noted, however, that the principle of joint criminal enterprise is newer than the crimes under review at the Khmer Rouge tribunal, meaning judges may seek to find similar principles within laws in force between 1975 and 1979.
“There is no jurisprudence for that period on JCE,” she said. “The judges have to find that [an act] was illegal at the time it was committed.”