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A Well-Reasoned Opinion? Critical Analysis of the First Case Against the Alleged Senior Leaders of the Khmer Rouge (Case 002/01)

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A Well-Reasoned Opinion? Critical Analysis of the First Case Against the Alleged Senior Leaders of the Khmer Rouge (Case 002/01) A Well-Reasoned Opinion? Critical Analysis of the First Case Against the Alleged Senior Leaders of the Khmer Rouge (Case 002/01) by DAVID COHEN, MELANIE HYDE & PENELOPE VAN TUYL with STEPHANIE FUNG A Well-Reasoned Opinion? Critical Analysis of the First Case Against the Alleged Senior Leaders of the Khmer Rouge (Case 002/01) DAVID COHEN, MELANIE HYDE & PENELOPE VAN TUYL with Stephanie Fung ii | EAST-WEST CENTER The East-West Center promotes better relations and understanding among the people and nations of the United States, Asia, and the Pacific through cooperative study, research, and dialogue. Established by the US Congress in 1960, the Center serves as a resource for information and analysis on critical issues of common concern, bringing people together to exchange views, build expertise, and develop policy options. The Center’s 21-acre Honolulu campus, adjacent to the University of Hawai‘i at Mānoa, is located midway between Asia and the US mainland and features research, residential, and international conference facilities. The Center’s Washington, DC, office focuses on preparing the United States for an era of growing Asia Pacific prominence. EastWestCenter.org The contents of this paper may be reproduced for personal use. Single copies may be downloaded from the Center’s website. For information or to order copies, please contact: Publications Office East-West Center 1601 East-West Road Honolulu, Hawai‘i 96848-1601 Tel: 808.944.7145 Fax: 808.944.7376 [email protected] EastWestCenter.org/Publications ISBN: 978-0-86638-270-0 (print) and 978-0-86638-271-7 (electronic) © 2015 East-West Center A Well-Reasoned Opinion? Critical Analysis of the First Case Against the Alleged Senior Leaders of the Khmer Rouge (Case 002/01) by David Cohen, Melanie Hyde & Penelope Van Tuyl with Stephanie Fung Cover photographs: (top) Courtroom proceedings, the Extraordinary Chambers in the Courts of Cambodia (ECCC), by Nhet Sok Heng/ECCC; (bottom) 350 villagers from Takeo and 50 students from Phnom Penh visited the ECCC, photo courtesy of the ECCC. A WELL-REASONED OPINION? | iii Table of Contents List of Figures and Tables .......................................................................................................................... iv List of Acronyms ......................................................................................................................................... v Executive Summary ................................................................................................................................... vi Part I: Introduction ..................................................................................................................................... 1 Part II: Critical Analysis of Trial Procedure ................................................................................................ 7 Severance ................................................................................................................................................... 7 Documentary Evidence ........................................................................................................................... 13 Civil Party Engagement ........................................................................................................................... 22 Part III: Critical Analysis of the Judgment .............................................................................................. 35 Structure and Organization .................................................................................................................... 35 Liability Assessment ................................................................................................................................ 41 Part IV: Conclusion .................................................................................................................................. 72 Notes ........................................................................................................................................................ 75 Acknowledgments ................................................................................................................................... 95 About the Authors ................................................................................................................................... 96 About the Research Supporters and Publishers .................................................................................... 97 iv | EAST-WEST CENTER List of Figures and Tables Figure 1 Proportional Trial Time Utilized by the Parties in Case 002/01 Table 1 Comparative Reliance on Civil Party Evidence between Case 001 and Case 002/01 Judgment Table 2 Amendments to the Internal Rules Impacting Victim Participation, Comparing Case 001 with Case 002/01 Table 3 Procedural Rights of Civil Parties, Comparing Case 001 with Case 002/01 Table 4 Victim Representation from Case 001 to Case 002/01 Table 5 Breakdown of Time Utilized by Parties, Comparing Case 001 with Case 002/01 Table 6 Questioning of Witnesses, Experts, and Civil Parties by Civil Party Lawyers and Civil Party Lead Co-Lawyers Table 7 Amendments to Victim Participation: Internal Rules from Case 001 to Case 002/01 Table 8 Comparison of Principal Headers from Tables of Contents in the Judgments of Different Internationalized Criminal Tribunal Cases A WELL-REASONED OPINION? | v List of Acronyms AIJI Asian International Justice Initiative CIJs Co-Investigating Judges CPK Communist Party of Kampuchea CPL Civil Party Lawyer CPLCL Civil Party Lead Co-Lawyer DC-Cam Documentation Center of Cambodia DK Democratic Kampuchea ECCC Extraordinary Chambers in the Courts of Cambodia ICC International Criminal Court ICTR International Criminal Tribunal for Rwanda ICTY International Criminal Tribunal for the former Yugoslavia IMT International Military Tribunal at Nuremberg IMTFE International Military Tribunal for the Far East IRs Internal Rules IS Ieng Sary ITU Interpretation and Translation Unit JCE Joint Criminal Enterprise KRT Khmer Rouge Tribunal KS Khieu Samphan NC Nuon Chea OCIJ Office of the Co-Investigating Judges OCP Office of the Co-Prosecutors PTC Pre-Trial Chamber RAK Revolutionary Army of Kampuchea SCC Supreme Court Chamber SCSL Special Court for Sierra Leone TC Trial Chamber TCCP Trial Chamber Civil Party (witness) TCE Trial Chamber Expert (witness) TCW Trial Chamber Witness UN United Nations US United States VSS Victim Support Section WWII World War II vi | EAST-WEST CENTER Executive Summary On 7 August 2014, the Extraordinary Chambers in the Courts of Cambodia (ECCC) reached an important institutional milestone when the Court published its long-awaited Trial Judgment in the first case against two of the surviving alleged senior leaders of the Khmer Rouge—Nuon Chea and Khieu Samphan (“Case 002/01”). The Court found both men guilty of crimes against humanity, and sentenced them each to life imprisonment, while awarding “moral and collective reparations” to a consolidated group of Civil Parties participating in the trial. Despite hopes that the five-year process of judicial investigation, trial, deliberation, and Judgment-drafting would produce a rigorous and insightful final product, in reality, as this report argues, the Case 002/01 Judgment fails to deliver the most fundamental output one expects from a criminal trial—systematic application of the elements of crimes to a well-documented body of factual findings. Based, in part, on insight gained from the continuous presence of a team of trial monitors throughout the trial, this report provides commentary on how a contentious and confusing trial process in Case 002/01 ultimately produced a similarly troubled final Judgment. Part I of the report provides context and a foundation for subsequent analysis, with a brief narrative overview of key developments during the trial. Part II focuses on critical analysis of trial procedure in Case 002/01, arguing that the Trial Chamber’s poor handling of a number of novel and complex legal issues arising out of Case 002 created procedural confusion that permeated many aspects of the trial. This part of the report also traces important changes that the Tribunal implemented with respect to the victim participation scheme between Case 001 and Case 002, and assesses how the new framework impacted the trial, with a particular focus on trial efficiency, as well as the representation and meaningful participation of the Civil Parties during the trial. Finally, Part III undertakes a close reading of the Judgment itself, finding a great deal of cause for concern in the Court’s analysis of the facts and application of the law, including the substantive legal analysis and factual findings underlying the Court’s liability assessment. Among the most important causes of the procedural confusion, which often overshadowed the substance of the trial proceedings, was the severance of what became Case 002/01 from the initially planned Case 002. This severance also had the effect of deferring the most important charges against the Accused to a future Case 002/02. While the massive scope of the Closing Order in Case 002 did present significant challenges in regard to trial management and the potential duration of the proceedings, the severance strategy adopted by the Trial Chamber was not successful in meeting those challenges. Indeed, severance of Case 002/01 had negative procedural and substantive repercussions, the effects of which are still being felt. The severance of
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