Genocide, war crimes, torture, persecution, forced labor, mass executions: The horrific litany of crimes alleged to have been committed by the Khmer Rouge leaders on trial at the Extraordinary Chambers in the Courts of Cambodia is well-known by now. But what few Cambodians realize is that Nuon Chea, Khieu Samphan and Ieng Sary are not currently being tried for any of the above crimes-and they may never be.
Just two months before the beginning of the trial in Case 002, judges “severed” the charges against the accused and decided to deal with only forced population movements-including the 1975 evacuation of Phnom Penh—in what they dubbed Case 002/01. Other charges and crimes would be dealt with in subsequent “mini-trials.”
Eight months later, the Trial Chamber has heard only 18 witnesses out of an estimated 65, few of whom have given focused and meaningful testimony on forced evacuations. It now looks like Case 002/01 will roll on for at least another year before judges are ready to begin drafting a judgment. And nobody-not prosecutors, defenders or trial observers-believes there will even be a second trial, much less a third and a fourth.
“There is an extreme unlikelihood verging on impossibility that there will be another case. This is it. This is the trial, and it is a shadow of its former self,” said Anne Heindel, a legal adviser to the Documentation Center of Cambodia.
Although everyone admits the necessity of chopping up the case-the massive Case 002 indictment weighed in at more than 770 pages-some say it should have been done more carefully, with greater attention to victims’ needs and the court’s legacy.
“It doesn’t encompass things people want to know about. You’re going to tell Cambodians you didn’t even consider whether a genocide happened or not, that you didn’t look at forced marriage, that you didn’t look at worksites? Nobody thinks it makes any sense,” Ms. Heindel said.
Even if the first mini-trial starts to move faster, there is still the age and health of the accused to consider. Former Social Action Minister Ieng Thirith has already been ruled unfit for trial due to Alzheimer’s disease, and her husband, Ieng Sary, suffers from a plethora of health problems. In May he was hospitalized for severe bronchitis, missing several days of trial, and doctors said his health might never meaningfully improve. Nuon Chea is 86 and has already had one heart attack.
“Anyone experienced in these sort of mega-cases would readily foresee, when factoring the evidence involved and ages of the accused, that the odds of trying the remainder of the 002 cases after this first phase of the case was nil. Fantasy,” said Michael Karnavas, Ieng Sary’s international lawyer.
Prosecutors agree, and have bluntly stated several times that there will never be a second trial. In October, they asked judges to expand the scope of Case 002/01 to include a more representative variety of worksites, cooperatives and purges in the first mini-trial. After their proposal was rejected, they asked simply for several execution sites and prisons related to the evacuations to be dealt with. Again, their request was denied.
Acting Co-Prosecutor William Smith said on Monday that if the Trial Chamber does not decide soon to expand the scope of the first mini-trial, prosecutors would file yet another motion on the matter.
“We still hold the view that a second trial against these accused is unlikely for the reasons we have outlined. Consequently, we have a responsibility to make sure the accused are on trial for the most representative, egregious and pervasive crimes it is alleged that they committed,” he said.
In response, the court said yesterday that, although judges reserved the right to expand the scope of the trial, a larger priority right now is finding a way to speed up the first mini-trial.
“This issue [of expansion]…may be discussed at the forthcoming trial management meeting. However, the main focus of this trial management meeting is a wish to further streamline proceedings in Case 002/01 so as to permit the Chamber to reach a verdict in its first trial earlier,” said Lars Olsen, the tribunal’s spokesman on legal affairs.
The Trial Chamber is now damned if it expands, damned if it doesn’t. After eight months, defense lawyers are certain to raise an outcry if the scope of the trial is broadened after they have already built their cases.
Michiel Pestman, who represents Nuon Chea, said a decision to broaden the scope of the first trial would be “madness.” He said if it happened, he was prepared to demand that witnesses be re-called to testify.
Mr. Karnavas, Ieng Sary’s lawyer, added that if the issue had been dealt with in open court before the original decision was made in September, it would have been far easier to find an elegant solution.
“If the Trial Chamber caves into…external pressures and expands the scope of the trial midway through the trial, it will significantly if not irreparably impact the rights of the accused-unless major allowances are made,” he said.
But the severance affects victims as well as defendants. Only a quarter of all civil parties will see their claims examined in court during the first mini-trial, leaving approximately 3,000 excluded. Legal reparations, if awarded, are limited to those who can demonstrate a clear link between their suffering and the crimes of the convicted persons. Civil parties might also find themselves deeply disappointed with the sentence handed down for the evacuations, which could be lower than large-scale murder and torture.
Silke Studzinsky, who represents hundreds of civil parties, many of whom were the victims of forced marriage, said her clients were still hoping to be included in Case 002/01.
“The severance order has a huge impact on more than 70 percent of our clients…. Their participation rights are moot. They cannot address the crimes and the suffering for which they are admitted [as civil parties],” she said.
Mr. Olsen said that the court is organizing forums where civil parties meet their lawyers to discuss the severance. But civil parties interviewed yesterday said they did not have a clear understanding of how the case has been divided, or why.
Sem Hoeurn, who gathered bones and corpses as a child laborer at Choeung Ek execution site, will not see her suffering addressed in Case 002/01, although she would be included if the co-prosecutors’ scheme for expansion were adopted.
“I believe all civil parties whose status has been recognized before the court want this court to try all crimes, including torture, mass killing and crimes against humanity,” she said. “But I don’t know if, because of the time issue, the number of charges might be reduced. It’s so hard to understand when they talk about judicial law.”
(Additional reporting by Kuch Naren)