Almost 40 years after Pol Pot, Nuon Chea and Khieu Samphan seized control in Cambodia, Phnom Penh’s efforts to finalize justice for the incredible hardships inflicted upon Cambodians by the dreaded Khmer Rouge have stalled yet again.
Incessant complaints and petitioning for more time by defense lawyers in the Extraordinary Chambers in the Courts of Cambodia (ECCC) have been widely seen as deliberate stalling tactics, further complicated by Khieu Samphan’s health and recent stints in hospital.
Like Nuon Chea, the former head of state has already been found guilty of crimes against humanity and been jailed for life in Case 002/01. But for prosecutors the elusive goal is to secure genocide convictions for the travesty that occurred here under their 1975-79 bloody rule.
“It is good to see the Khmer Rouge defense attorneys providing such a wholehearted defense for such indefensible clients,” trial observer and author of Law and War, Peter Maguire, said.
“However, theirs’ is a standard criminal defense strategy. When the facts are against them, they argue the laws; when the laws are against them they argue the facts; when both are against them, they attack the other side.”
The ECCC has been dogged by controversy and predictions of an early demise ever since the first judges were sworn in back in 2006 and the first investigations into the deaths of between 1.7 million and 2.2 million people got underway.
Such predictions have proved groundless. Case 001 provided initial success when Kaing Guek Eav, also known as Duch, was sentenced to life behind bars for the deaths of thousands of people he had processed at the S-21 torture center for extermination at the Killings Fields.
Prosecutors had held back on pursuing charges of genocide until last year, preferring instead to prosecute for lesser crimes and amass evidence that would potentially secure genocide convictions, which legal experts argue is always a difficult crime to prove beyond doubt.
But the advanced years of both men, Nuon Chea is 88 and Khieu Samphan is 83, has raised fears that they will die before judgment day, like Serbian dictator Slobodan Milosevic and Pol Pot’s former foreign minister Ieng Sary who died almost two years ago. Ieng Sary is the only man in history to be charged with genocide twice.
Anta Guissé, counsel for Khieu Samphan, and Victor Koppe, lawyer for Nuon Chea, said the rights of their clients were paramount and even more important than the rights of the ECCC.
They boycotted the trial late last year.
Guissé argued she needed more time to prepare her appeal in Case 002/01 while Koppe has demanded that four of the five sitting judges be removed because his client believes they are irredeemably biased because of their tenure over previous trials.
Both lawyers pushed their strategies despite disciplinary warnings from the bench of local and international judges. As a result, temporary defense teams have been brought in from the outside and put on standby to handle genocide charges in Case 002/02, if the stalling tactics continue.
“A fascinating game of chess is taking place in the Trial Chamber between the defense and the judge,” said Craig Etcheson, trial expert and Visiting Scholar at the School for Conflict Analysis and Resolution at George Mason University in the United States.
“The defense attempts to provoke the judges to such a degree that they will make a strategic error which can provide grounds for a successful appeal to have the case thrown out, to reverse a conviction, or to reduce the punishment.”
He said it was in the interests of the defense to slow-walk the trial process as much as possible as the rules grant the defense a plethora of procedural maneuvers which they would take advantage of to the maximum extent.
“If an accused expires before a verdict is reached, as in the case of Ieng Sary, he dies with his presumption of innocence intact.”
Etcheson also said that reaching a verdict on genocide is crucial for the legacy of the ECCC.
“Symbolically, especially for the Cambodian people, genocide is the most significant crime alleged to have been committed by the accused persons.
“If the court fails to render a judgment on genocide, many people will regard the tribunal as a wasted opportunity to define the modern history of Cambodia.”
Trials are also in the offing for Meas Muth, Khmer Rouge navy commander in Case 003. Prosecutors also want to try Im Chem, a former district chief, as well as deputy zone secretaries Yim Tith and Aom An in Case 004.
However, allegations of political interference by Prime Minister Hun Sen, who has signaled that he does not want to see any further prosecutions, routine procedural delays, and defense tactics have also heightened concerns that these cases might not go ahead.
In a bid to accelerate the process, the ECCC last week adopted new provisions that will allow co-investigating judges and the Trial Chamber to trim back the scope of investigations and drop some accusations against suspects.
This was expected to ease the work load in the genocide trial, and allow the high number of accusations against the four suspects in 003 and 004 to be reduced to a more workable level. But critics have warned the move could also silence victims who were prepared to testify.
“Cases 003 and 004 have obviously been troubled for a long time, but it is too soon to know what their ultimate fate will be,” Etcheseon said. “Who now remembers when Hun Sen said that he would not allow anyone to ‘touch’ Ieng Sary? As the objective situation evolves, historically he has shown great tactical dexterity.”
Critics of the tribunal have been loud and quick to pounce on the politics and the controversy that came with the ECCC from the outset, particularly the lengthy delays and the costs, which at slightly more than $200 million to date represents about $100 for each person who died under the ultra-Maoists.
“It is up to the judges to rein in this time consuming exercise and get on with the trial,” Maguire added. “It will be a pity if the UN’s obsession with procedural correctness allows the Khmer Rouge trial to become a second Milosevic case with the defenders dying before their trial is complete.”
Luke Hunt can be followed on Twitter @lukeanthonyhunt.