Nuon Chea, the most senior surviving Khmer Rouge leader, wants to be released from jail, where he has been languishing since his arrest September 19 on charges of war crimes and crimes against humanity, his lawyers said.
In their request for his release, made public late Wednesday, Nuon Chea’s lawyers attacked the legality of their client’s incarceration.
The appeal for Nuon Chea’s release also raises questions about the court’s approach to ordering the arrests of Nuon Chea, Khieu Samphan, Ieng Sary, and Ieng Thirith-all of whom have been living freely and unperturbed in Cambodia for years.
The defense argues that Khmer Rouge tribunal prosecutors and co-investigating judges failed to present any evidence to support their claims that Nuon Chea should be detained in prison because he might flee, intimidate witnesses or that his continued liberty could be a threat to public order, or that he might be harmed.
“[N]one of the grounds contained in the Detention Order were factually substantiated,” Nuon Chea’s lawyers wrote in their appeal.
“Not only has this made it difficult for the Defense to lodge a proper appeal, it leaves one with the very distinct impression that Mr Nuon’s pre-trial detention was a fait accompli-and with the very real fear that public confidence in these proceedings may be adversely affected,” it adds.
The language in the detention orders for Nuon Chea, Ieng Sary, Ieng Thirith, Khieu Samphan is similar. In Ieng Sary’s detention order there appears to have been a “cutting and pasting” error: In one paragraph, Nuon Chea’s name was mistakenly listed instead of Ieng Sary’s. The paragraph in question is almost identical in the detention orders for both men.
Tribunal Co-Prosecutor Robert Petit declined to comment on that editorial lapse Thursday, but he said that it was “neither surprising nor a big deal” that the detention orders are similar. The defendants have been accused of similar crimes, with similar facts, in a similar social and political context, Petit said.
As for Nuon Chea, he added: “We believe all the grounds [for detention] are met. There is ample reason to believe he is responsible for crimes under our jurisdiction. We believe the judgment of the co-investigating judges should be upheld.”
The defense, in their appeal, said that Nuon Chea would have surrendered to the court voluntarily, had he been asked.
Included in the appeal is a signed statement from Nuon Chea promising to cooperate with the court and report daily to local police if allowed to return to his Pailin home.
The defense appeal depicts Nuon Chea as frail and clearly outmatched by the legal experts arrayed against him at his detention hearing at the Extraordinary Chambers in the Courts of Cambodia.
Nuon Chea told judges that he didn’t need a lawyer present at that hearing, a judgment his defense team now says he wasn’t competent to make.
“While Mr Nuon made an admirable attempt to counter the submissions of the OCP [Office of Co-Prosecutors], it is clear from the record that he was unable to participate in any meaningful way. He was, quite literally, defenseless,” his lawyers wrote.
His lawyers also said that his Sept 19 interview by the ECCC was too rigorous for a sickly 81-year-old. Nuon Chea was arrested at dawn at his Pailin home, and flown by helicopter to Phnom Penh where he began a series of meetings with tribunal officials at 2:40pm, which lasted until 6:30pm.
The lawyers cited a September medical report, which said Nuon Chea suffers from uncontrolled high blood pressure; heart disease, which makes him winded and uncomfortable at the slightest exertion; impaired cognitive function, including faulty memory; and gout.
ECCC co-investigating judges on Nov 1 issued a contrary statement saying that after extensive medical exams, it had been determined that Nuon Chea’s health was stable and that there was no medical reason he could not be detained.
Nuon Chea’s lawyer, Son Arun, also said Thursday that his client’s health was fine.
The defense also said in their appeal that the evidence linking Nuon Chea to the crimes of the Khmer Rouge was spurious, consisting mostly of “unsubstantiated personal innuendo and inaccurate scholarly citation.”
They also maintained that the notion Nuon Chea, who has lived openly in Pailin since 1998, might flee was “fanciful.” Nuon Chea knew of his impending arrest the night before and rather than flee, he washed and ironed five shirts in preparation for his trip to Phnom Penh.
Son Arun said his client is eager to participate in the trials so he can explain his view of the history of the Khmer Rouge to the world.
“I don’t know why they arrest him now. I’m still working on why they arrested my client,” he added.
The defense also said that Cambodian authorities have demonstrated that they have the will and ability to arrest Khmer Rouge era criminals-one more “convincing” reason, they said, that their client should be released.
“There is every reason to believe that these very authorities are up to the task of monitoring, and re-arresting if necessary, a man in so frail a condition as Mr Nuon,” they wrote.
A date for Nuon Chea’s detention appeal hearing has not been scheduled. Son Arun said it would likely take place early next year.
Over the next two weeks, the Pre-Trial Chamber will accept friend of the court briefs of 15 pages or less on Nuon Chea’s detention appeal. The chamber has requested that submissions be made in Khmer, as well as in either English or French.
(Additional reporting by Prak Chan Thul and Yun Samean.)