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Khmer Rouge Trial Takes Shape

The initial hearings in Cambodia’s Case 002 have closed. The lines of defence to be employed by the four accused of involvement in genocide are becoming clear.

Luke Hunt

The historic Khmer Rouge tribunal wrapped-up its initial hearings in Case 002 this week, winning widespread praise for its conduct, as a legal strategy emerged for defending Pol Pot’s surviving lieutenants against charges relating to the deaths of up to 2.2 million Cambodians.

Absent were the sometimes shrill cries over investigations surrounding potential future trials and allegations of political interference that had dogged recent weeks at the Extraordinary Chambers for the Courts in Cambodia (ECCC).

Instead, a steady and methodical (at times tedious) legal process emerged as a full bench of International and Cambodian judges, the defence, prosecution and civil parties set about trying senior Khmer Rouge leaders for genocide and crimes against humanity allegedly committed between April 1975 and January 1979.

‘The court officials were all very professional throughout the proceedings from what we’ve seen,’ says Leakhena Nou, Executive Director of the Applied Social Research Institute of Cambodia (ASRIC).

ASRIC represents US-based survivors of the Khmer Rouge regime and has had 41 civil parties admitted to Case 002, who Leakhena Nou said were akin to ambassadors in representing at least 150,000 Cambodian-Americans, and many more of Khmer heritage living around the world.

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‘Justice doesn’t fall into your lap. You have to fight for justice,’ she says.

Her sentiments were echoed by prosecutors and legal counsel for former Foreign Minister Ieng Sary, his wife Ieng Thirith, and the former head of state Khieu Samphan. The three surprised observers and a consistently packed public gallery by cooperating with the court.

However, counsel for Noun Chea told a post-hearing media briefing that they and their client weren’t happy with the tribunal, and that a lack of transparency in the initial hearing was a matter of grave concern and might seriously endanger the purpose of the trial.

Brother No 2’s defence is headed by Dutchman Michiel Pestman, who complained that his preliminary objections had been ignored by the court. He included a list of 300 witnesses the defence wants to testify in public about the alleged war crimes.

‘It’s like reading one page of a history book and tearing the rest out,’ he said on the lawns of the ECCC.

He added that former US Secretary of State Henry Kissinger – who played a pivotal role during the Indochinese wars that preceded the Khmer Rouge’s rise to power – was on the list of 300 that Nuon Chea wanted to call and have testify in public at the ECCC.

But Kissinger’s name wasn’t on a shortlist of 15 people presented to the court, whose names must remain confidential, and that will form the basis of their defence.

While Nuon Chea’s team is focused on the wider ramifications of Cold War power plays in Cambodia as its defence, Ieng Sary’s team honed in on a pardon granted by King Norodom Sihanouk in 1996 as part of peace deal that eventually ended the civil war. They claim double jeopardy means their client shouldn’t be charged.

Khieu Samphan said his position within the Khmer Rouge as head of state was mainly ceremonial, and that he was never in a position to fully understand what was happening in the countryside. Ieng Thirith also argued she wielded no real power within the regime. Her Cambodian lawyer, Phat Pouv Seang, also attempted to patch up any perceived differences between her and Nuon Chea’s camp. During an outburst at a previous hearing, for example, Ieng Thirith had claimed Nuon Chea and S-21 commandant Kaing Guek Eav, alias Duch, were responsible for atrocities committed under Pol Pot.

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‘In principle they are getting along, they haven’t had any significant feuds – maybe mini-arguments – the two of them can be seen sitting next to each other and there are no problems,’ Phat Pouv Seang told the briefing through an interpreter in response to a question from The Diplomat.

The importance of the ECCC was underscored by the US ambassador at large for war crime issues, Stephen Rapp, who called the tribunal ‘the most important trial in the world,’ while legal experts say the war crimes trial is the most complex since Nuremberg in the aftermath of World War II.

The sheer number of crimes, victims and witnesses is immense. More than 3,800 civil parties, or victims seeking reparations, have been admitted to the court. There are more than 450,000 pages of evidence that will attempt to connect crimes with government policy.

Those crimes, however, happened more than 30 years ago, and crime sites are an issue because there are so many, scattered across the remote countryside and tainted by human intervention and decades of weathering. No pleas have been entered yet, but the defendants have signalled they will plead not guilty.

Still, the ECCC struck its first victory last year in Case 001 with the conviction of Duch for crimes against humanity committed at the S-21 torture and extermination camp. An estimated 24,000 people passed through its gates and were usually forced to dig their own graves before being bludgeoned to death with an ox cart axle, their throats often slit to make sure the job was complete. More than 190 such camps were constructed across the country.

‘We saw them come into the tribunal and we thought they have a right to due process, not guilty until proven guilty,’ says Leakhena Nou. ‘Revenge isn’t the answer…the truth will catch up with them.’

The ECCC has also been struck by recent allegations from non-governmental organizations of political interference in regards to investigations into lower ranking officials in cases 003 and 004.

Widespread reports say Case 003 involves Sou Met, a former commander of the Khmer Rouge Air Force, and Meas Mut, commander of the navy; Prime Minister Hun Sen has indicated he doesn’t want to see the tribunal expanded.

But for now, Cambodians and a large contingent of international players and observers are focused on Case 002, which most expect will run for another two years.