The ECCC Severance Saga: A Tale of Trial Management

Note: this post was written on the occasion of an internship at the Defence Support Section of the United Nations Assistance to the Khmer Rouge Trials. The views expressed below are solely those of the author and cannot be attributed to the Defence of Nuon Chea, the Extraordinary Chambers in the Courts of Cambodia, or the United Nations.

It is well-known that the logistics of international criminal trials are complex and delicate. Nowhere are the challenges of conducting fair and expeditious proceedings better illustrated than at the Extraordinary Chambers in the Courts of Cambodia (ECCC), tasked with judging former Khmer Rouge leaders Nuon Chea, Khieu Samphan, Ieng Sary and Ieng Thirith, charged with crimes against humanity, war crimes, and genocide for their alleged contribution to crimes committed in Democratic Kampuchea in 1975–1979.

Significant pressure has been put on the ECCC since Ieng Sary’s death in March 2013, which followed the release of defendant Ieng Thirith, found unfit to stand trial due to Alzheimer’s disease. As the number of accused sitting in the courtroom is shrinking, and in view of the ‘advanced age and the deteriorating health’ of Nuon Chea and Khieu Samphan, it is feared that the Trial Chamber might not be able to render a verdict.

On July 23rd, 2013, the ECCC Supreme Court Chamber issued its Decision on Immediate Appeal against Trial Chamber’s Second Decision on Severance in Case 002. As this short post argues, the Supreme Court Chamber questionably stretched the limits of judicial accommodation in an effort to offer innovative responses to an unprecedented situation.

I. Procedural Background

In September 2011, the Trial Chamber had decided the severance of proceedings, dividing the trial into discrete sub-trials. Each ‘mini-trial’, as they are dubbed by insiders, was accordingly supposed to cover a specific portion of the Closing Order (indictment) and be concluded with findings on criminal responsibility with respect to a particular segment of factual allegations. The Trial Chamber also delineated the material scope of Case 002/01, the first trial to be conducted under this line of proceeding. Case 002/01 thus only deals with counts of crimes against humanity in relation to population movements (including the evacuation of Phnom Penh in April 1975) and the killing of former soldiers and officials of the Lon Nol regime at Tuol Po Chrey.

The Prosecutor appealed the Trial Chamber’s decision, arguing that the scope of Case 002/01 as defined by the Trial Chamber was not representative of the charges contained in the indictment. Ruling upon the Prosecutor’s appeal, the Supreme Court Chamber blamed the Trial Chamber for having failed ‘to demonstrate by way of adequate reasoning the interest of justice in severing Case 002’, and annulled the decision on severance.

In April 2013, the Trial Chamber ruled again on the issue of severance. However, both the Prosecutor and the Nuon Chea Defence took issue with the way in which the Trial Chamber defined the scope of Case 002/01, and separately appealed this second decision, seeking the inclusion of more crime sites and genocide charges.

II. The Supreme Court Chamber’s Decision

Two months after both appeals were filed, and a few minutes after the conclusion of what turned out to be the last hearing of the trial before closing arguments, the Supreme Court Chamber issued a 5-page decision supported by a ‘summary of reasons’.

The Supreme Court Chamber held that the Trial Chamber committed an error of law, as well as an error in the exercise of its discretion, in determining the scope of the trial. Moreover, it agreed with the parties’ submissions that the charges as defined by the Trial Chamber were insufficiently representative of the indictment.

Therefore, one might reasonably have expected it to grant the appeals. Reason, however, is not the only driving force of international criminal trials.

Far from drawing the consequences of its findings, the Supreme Court Chamber rejected both appeals on the merits, on the ground that ‘concerns of the effective management of the entirety of charges pending before the Trial Chamber prevail over the postulate that Case 002/01 be reasonably representative of the Indictment’. It accordingly instructed that ‘charges that should have been included within the scope of Case 002/01 w[ould] instead form part of the scope of Case 002/02’, and ordered the commencement of proceedings in Case 002/02 as soon as possible after closing submissions in Case 002/01. Case 002/02 is supposed to ‘comprise at minimum the charges related to S-21, a worksite, a cooperative, and genocide’.

The Supreme Court Chamber added that reasons for its ruling were to be fully expounded ‘in writing’ – which is good news – and ‘as soon as possible’.

Translated into plain English, this basically means: ‘We agree with you, therefore, we reject your request, because we do not have the time to conduct this trial properly nor to justify our decision.’

It is worth keeping in mind that this decision was taken by the very same panel which blamed the Trial Chamber for insufficient legal reasoning. It seems that the interest of justice would have been better served if this important decision had been rendered earlier and with a detailed articulation of the grounds.

In substance, what this ruling entails is that proceedings in Case 002/02 will start before a verdict in Case 002/01 will be reached. This is problematic, as Case 002/01 addresses overarching issues such as the existence of the alleged joint criminal enterprise and underlying criminal policies, which are relevant to Case 002/02 and potential further trials.

What is more, the Supreme Court Chamber did not define the scope of Case 002/02 with sufficient precision. It is important that the scope of each trial be clearly defined, to avoid infringing the right of the accused to be informed of the charges brought against them.

Admittedly, the task of accommodating practical concerns in a complex and politically sensitive trial is not an easy one, and a situation as tricky as that currently presented by Case 002 demands innovative judicial responses. Nonetheless, as I have had the opportunity to argue on this blog before, the legacy of international criminal courts and tribunals will be judged not only on the basis of their efficiency in securing convictions, but also with regard to their ability to produce rigorous, coherent, and intellectually honest decisions. A criminal trial is too serious a matter for improvised patching up.

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