Khmer Rouge tribunal judges unanimously rejected Nuon Chea’s request to be released from pre-trial detention Thursday and upheld the right of victims to participate without restriction in all stages of the judicial process.
“The appeal is dismissed,” Pre-Trial Chamber President Prak Kimsan said, reading from the chamber’s written decision. “This decision is not subject to appeal,” he added.
Nuon Chea, once Pol Pot’s most trusted deputy, was arrested Sept 19 by the Extraordinary Chambers in the Courts of Cambodia on charges of war crimes and crimes against humanity. He allegedly masterminded the Khmer Rouge’s lethal security apparatus, which contributed to the deaths of an estimated 1.7 million people from 1975 to 1979.
In upholding his detention Thursday, Pre-Trial Chamber judges said that based on the evidence they’ve seen, there are well-founded reasons to believe Nuon Chea may be guilty of crimes including murder, torture, imprisonment, enslavement and forced labor. They also said Nuon Chea appeared to be mentally and physically fit to make decisions and engage in the judicial process.
“I hoped they could release him, but unluckily not,” said Nuon Chea’s co-defense attorney, Son Arun. “We tried the best to fight against it,” he added.
Chum Mey, one of a handful of people to survive the Khmer Rouge S-21 torture prison, said he approved of the court’s decisions. “There are millions of people who don’t want him to be outside of detention,” he said in an interview, adding that though Nuon Chea is too old and frail to flee, he could well come to harm were he released.
“If he’s outside, anybody could try to kill him,” said Chum Mey, who as a civil party to Nuon Chea’s case was present in the courtroom Thursday. “He could also take pills to kill himself,” he added.
Nuon Chea appeared frail Thursday. He shook the hand of one guard upon entering the court’s chamber, saying, “How are you?” before proceeding haltingly, cane in hand, to the single step that stood between him and the courtroom. He paused, as if to summon the strength of his legs, and stepped up, grunting a little, with the help of two guards.
During much of the hearing, Nuon Chea appeared to doze.
“He’s all the time like that,” Son Arun said, after the hearing. “That’s why I ask the co-investigating judges to get the psychologist doctor to look at his brain,” he said, adding: “Nuon Chea, he has only one kidney since he was born.”
Last year, the Pre-Trial Chamber also rejected the request of S-21 chief Kaing Guek Eav, aka Duch, to be released from detention.
A hearing on the detention appeal of former Khmer Rouge Social Action Minister Ieng Thirith will be held April 21; Khmer Rouge head of state Khieu Samphan’s hearing will be April 23. Most of Khieu Samphan’s detention appeal hearing will be closed to the public.
The Pre-Trial Chamber on Thursday also reaffirmed the value of civil party participation in all phases of the judicial process as a means to further national reconciliation.
“Civil parties have active rights to participate starting from the investigation phase,” Prak Kimsan read, adding: “The Pre-Trial Chamber notes that the inclusion of civil parties in procedures is in recognition of the stated pursuit of national reconciliation.”
Judges said that both Cambodian domestic law and the internal rules of the ECCC give civil parties broad participatory powers.
Cambodia is awash with potential civil parties, and both the prosecution and the defense have offered suggestions on how to regulate victim participation to prevent the cash-strapped tribunal from collapsing under a storm of victim complaints.
The defense, in particular, said it did not have the resources to respond to a potentially onerous burden of legal input from victims.
In their oral comments, Pre-Trial Chamber judges made little mention of the proposed efficiency mechanisms. Instead, they said they would not “speculate on facts that may or may not be presented to it in the future.”
Civil party lawyer Silke Studzinsky welcomed the ruling. “It is clear and obvious that civil parties have the right to participate,” she said, adding: “I agree completely, not only because I am a representative of civil parties, but because it’s absolutely in accordance with the applicable laws.”
She said judges needn’t regulate civil party participation any more stringently than they regulate the participation of the defense and prosecution—by, for example, limiting the length of written briefs and enforcing time limits for oral testimony.
Son Arun said he fully supported victim participation in the tribunal, but “only at the right time.” A pre-trial detention appeal, he said, is no place to try and foster national reconciliation. “It’s too early,” he said.
Tribunal Co-Prosecutor Robert Petit said it would be premature to comment on the Pre-Trial Chamber rulings before having had a chance to review the full, written decision. “Obviously, the judges did a lot of research,” he said.
The defense also said they looked forward to analyzing the court’s reasoning. Legal consultant Andrew Ianuzzi, who works on Nuon Chea’s defense team, said that in their oral comments, judges had failed to address the substance of the defense’s arguments.
“It’s a bit incomprehensible from what they’ve said,” he said, adding: “Is Nuon Chea actually a flight risk and a threat to public order? Those were the more interesting legal questions.”
The tribunal’s UN Public Affairs Officer Peter Foster said the full text of the Pre-Trial Chamber’s decision would be posted to the court’s Web site today.
Translation continued to be troublesome, with judges on several occasions halting proceedings to better coordinate translation. Some sections of Thursday’s judgment were not translated into English.
(Additional reporting by Prak Chan Thul)
