Soum Rithy travels regularly to the outskirts of Phnom Penh to observe the ongoing trial of former leaders of the communist Khmer Rouge.
The 60-year-old bears the scars of his almost two-year incarceration at a prison in northwestern Siem Reap province in the late 1970s, by Khmer Rouge cadres who accused him of being a CIA spy. “I still suffer [from] nightmares [after] being beaten, shackled and scorched with boiling water,” he said at his home in the capital last month.
Rithy, a civil party in the second case at the United Nations-backed war crimes court, said he had grown frustrated as he followed the proceedings. “We fear the Khmer Rouge tribunal will let the accused die with old age,” he said.
The UN and the Cambodian government agreed in 2003 to set up a tribunal – formally known as the Extraordinary Chambers in the Courts of Cambodia (ECCC) – to prosecute Khmer Rouge senior leaders and those “most responsible” for crimes committed under the regime between April 17, 1975, and January 6, 1979.
In the tribunal’s first case Kaing Guek Eav, alias Duch, former head of S-21 prison in Phnom Penh, was sentenced to life imprisonment on appeal in early 2012 for his role in the deaths of over 12,000 people.
In September 2010, the ECCC indicted four defendants in the court’s second case, named Case 002 – its best chance to deliver representative justice to the estimated 1.7 million people who died from execution, overwork, starvation and disease, and countless others who were traumatised, during the period. Former Khmer Rouge second-in-command Nuon Chea, foreign minister Ieng Sary, nominal head of state Khieu Samphan and social action minister Ieng Thirith were accused of genocide, crimes against humanity and war crimes.
Given accusations of Cambodian government interference in the court’s work and dwindling support from international donors, a diminished Case 002 may now be all that is left. Of the original four defendants, only Nuon Chea and Khieu Samphan remain on trial. Ieng Sary died in March at the age of 87, while his wife Ieng Thirith was found unfit to stand trial last year after being diagnosed with dementia.
Perhaps no decision in the court’s history – apart from the UN’s decision to back the court in the first place – has been more controversial than the Trial Chamber’s severance of Case 002. In September 2011, shortly before the trial began, the chamber decided to split the case into a sequence of smaller trials dealing with different charges in the indictment.
As it stands the first trial in Case 002, known as Case 002/01, is addressing allegations related to the initial forced movement of people from Phnom Penh and later from other areas, executions of soldiers and officials of the defeated Lon Nol republic at a site in western Pursat province, and related crimes against humanity.
In February this year, the Supreme Court Chamber annulled the severance and ordered that the issue be revisited. The Trial Chamber affirmed the existing scope of Case 002/01 in April, stating that forced evacuation was the most representative single crime in the indictment.
“Forced movement perhaps constitutes the only theme in the indictment to have involved or directly affected the entire Cambodian population,” their decision read. “Other crime sites or charges, whilst each encompassing significant offences and victim classes, describe crimes that occurred either within an individual locality or against a particular religious group or ethnicity.” Prosecutors had until the end of May to appeal against this decision.
There is widespread pessimism about whether further trials in Case 002 – or potentially in the long-stalled cases 003 and 004, which concern allegations of genocide, crimes against humanity and war crimes, and remain under investigation – will be heard.
ECCC international co-prosecutor Andrew Cayley said it is unlikely there will be more trials in Case 002 and the severance, as it stands, does not properly represent the “intentionally caused tragedy” that occurred under Khmer Rouge rule. “I have always believed for technical legal reasons that you cannot proceed to Case 002/02 until the final appeal has been determined in Case 002/01 … [at] the end of 2015 or the beginning of 2016,” he said.
“Combine these factors with the age of the accused and the serious financial challenges the ECCC has faced each year over the last seven years, almost to the point where the court has collapsed – it is just unrealistic to expect a second trial.”
On top of severely limiting the scope of what could be the ECCC’s last trial, lawyers at the tribunal said the Trial Chamber had wasted months of valuable time in their handling of the severance and other aspects of the trial.
“[P]roceedings may have progressed further and more quickly had the Trial Chamber taken more and better control of trial management from the outset,” said Lyma Nguyen, a civil party lawyer at the ECCC. The Trial Chamber’s failure to communicate how proceedings in Case 002 would be structured early on in the trial, numerous procedural changes and inefficient scheduling of witnesses have all contributed to the slow pace of Case 002/01, she added.
Michael Karnavas, a former defence lawyer for Ieng Sary who represents one of the Case 003 suspects, said the Trial Chamber has repeatedly shown that it lacks the ability to conduct a fair and expedient trial.
“In the trial stage, this has been one big improvisation,” he said. “As soon as something doesn’t work, [the Trial Chamber goes] to something else and then they are compounding one problem with another. It gives the perception they are not in control and they don’t know where they are going.”
Though the Trial Chamber may have stumbled through Case 002, Karnavas said a greater share of the blame for the length of proceedings fell on the prosecution, who brought forth an enormous indictment that could not possibly be tried in full, forcing the severance of the case and disappointing civil parties and the public.
“Why not draft, from the very beginning, a modest and somewhat representative introductory submission that could be tried in about two to three years; where you would cover more or less all of your bases and perhaps everybody would still be alive when you reached your decision?”
However, Andrew Cayley said the indictment was not too large and the public had expected at the time that a range of crimes would be investigated across the country.
“That said, the scope of the investigation was still relatively limited to only a small proportion of the worksites, security centres and forced marriages that were requested to be investigated,” he said. “This was done so that the investigation could be completed in a reasonable period of time.”
Cayley added that the advanced age of key suspects and the possibility that they might die before the end of any trial was known when the court was established.
“It was still rightly believed that bringing individuals to account, through the due process of law, was as important as achieving a final determination,” he said.
In addition to such concerns, civil party lawyers have argued that the severance of charges excludes about 70% of civil parties in the case.
The decision to sever Case 002 has left Rithy and thousands of other civil parties in a “grey area”, said Silke Studzinsky, a former civil party lawyer at the ECCC. Though the Trial Chamber has not yet clarified how it will deal with civil parties who were not harmed in relation to charges of forced movement, Studzinsky said people like Rithy will probably be left out.
“The severance order significantly affects participation and reparations rights of the civil parties,” she said, adding that the Trial Chamber had failed to consider or communicate effectively with civil parties.
Rithy said such opaque decisions had made him suspect that the UN and the Cambodian government were manipulating the tribunal. “If Case 002 fails to reach the final stage, it is a big shame on those who initiated a negotiation for the establishment of this tribunal, not us,” he said.
This scenario leaves cases 003 and 004 – which Cambodia’s government has publicly opposed – as the ECCC’s best chance to salvage its legacy, said Anne Heindel, a legal adviser for the Documentation Centre of Cambodia and co-author of Hybrid Justice: The Extraordinary Chambers in the Courts of Cambodia.
“Case 002 is so diminished in importance at this point, because of slicing the indictment in the way that it has been done, because of the death of Ieng Sary and health of Ieng Thirith, and because Nuon Chea is very ill so he’s not likely to see judgment,” she said. “You have one senior leader [Khieu Samphan] on a very, very small part of the indictment that he probably didn’t have a whole lot to do with.”
Heindel added that Case 002 was not the centrepiece trial that everybody, including the court’s donors, had wanted. “I cannot see that this court will have a powerful legacy if cases 003 and 004 don’t happen.”