Legal Commentary: Co-Prosecutors Request Clarification of the Scope of Case 002/01 Charges
In advance of closing arguments in Case 002/01 Co-Prosecutors have sought to clarify how the Trial Chamber will address joint criminal enterprise (JCE) policies falling outside the subject matter of the first—and possibly last—Case 002 trial in an apparent final effort to enlarge the scope of charges against the two surviving senior Khmer Rouge leaders.
The Case 002 indictment accuses the octogenarian accused of responsibility for international crimes committed as part of a JCE implemented through five high-level policies: forcing population movements; establishing and operating work cooperatives; re-educating “bad elements” and killing “enemies” inside and outside of the Communist Party of Kampuchea; targeting the Cham, Vietnamese, Buddhists, and former officials of the Khmer Republic; and regulating marriage. Before the start of trial hearings, the Trial Chamber sought to expedite a verdict by becoming the first international court to contemplate holding consecutive trials based on one inter-related indictment, resulting in novel and unresolved procedural questions.
The first trial, Case 002/01, originally pertained to the structure of the Democratic Kampuchea (DK) regime, the roles of the accused before and during the DK period, two alleged forced movements of Cambodians, and related crimes. The Trial Chamber said the case would include “detailed factual consideration” of only these charges, but would also “provide a foundation for a more detailed examination of the remaining charges and factual allegations against the Accused in later trials[.]” For this reason, the Chamber would “give consideration to the roles and responsibilities of the Accused in relation to all policies relevant to the entire Indictment[.]” [1] Because the Trial Chamber did not finalize the scope of charges for the first year of trial, has not (in the words of the Supreme Court Chamber) articulated a “tangible” plan for how the remaining Case 002 charges will be heard, and has not addressed the parties’ procedural and fairness concerns about how factual and legal issues addressed in Case 002/01 may serve as a foundation for charges in a second case, there has always been uncertainty regarding the precise evidentiary parameters of policies falling outside of Case 002/01.
One consequence has been that, in justifying Khieu Samphan’s belated decision not to answer questions at the close of trial, his lawyers expressed concern that “the questions that will be put to [him] are very likely to stray outside the scope of the first trial under the pretext that they are related to joint criminal enterprise or administrative structures[.]” [2] They later said they were “shocked” that the Trial Chamber had “surprisingly announced it would adjudicate within the realm of the first trial the responsibility of Khieu Samphan with regard to all criminal policies implemented by the Pol Pot regime[.]” [3] In contrast, the Co-Prosecutors expressed surprise that “[d]espite the Chamber’s numerous written and oral directives on this issue … the scope of this trial seems to still elude the Defense.” [4] Nevertheless, prompted by exchanges between the parties and the Chamber during the last month of trial hearings, the Co-Prosecutors have since sought “[c]larification regarding the factual findings and legal conclusions that will be made by the Trial Chamber on JCE policies that are not related to the charges included in Case 002/01.” [5]
Party efforts to clarify this aspect of the severance decision began before the start of trial, at which time the Chamber’s senior legal advisor counseled:
Regarding the examination of policies other than those relating to forced evacuation, the purpose of including references to them in the first trial is to enable the manner in which the policy was developed to be established. What is therefore envisaged is presentation in general terms of the five policies, although the material issue for examination in the first trial is limited to the forced movement of the population (phases one and two). It follows that there will be no examination of the implementation of policies other than those pertaining to the forced movement of the population (phases one and two)…. In sum, the parties are requested to focus their detailed questioning … [on] facts relevant to the first trial segments. No examination of topics to be included in later trials will be permitted. [6]
A year into proceedings the Trial Chamber added charges related to the Tuol Po Chrey crime site, where hundreds of Khmer Republic soldiers and officials were allegedly executed by Khmer Rouge forces. A subsequent decision clarified that these charges would allow the examination of one more policy charged in the indictment: the “execution of purported enemies of the regime.” At the same time, the Trial Chamber baldly asserted: “From the outset, the Chamber has ruled that all parties may lead evidence in relation to the roles and responsibilities of all Accused in relation to all policies of the DK era.” [7]
In practice, during trial hearings the Trial Chamber generally restricted the discussion of evidence related to policies other than forced movement, with the notable exception of expert and elderly witnesses. Indeed, last month, the Chamber stated:
Throughout the proceedings, the parties have been ordered to limit proposed evidence to that directly relevant to Case 002/01. The Chamber, however, has admitted evidence relevant to Democratic Kampuchea policies and crime sites outside the scope of Case 002/01, usually when this evidence is adduced as part of directly relevant evidence and/or concerns the impact of crimes on victims. [8]
As discussed above, relevant evidence includes that showing the existence and development of the three policies falling outside of Case 002/01, to be distinguished from evidence proving the implementation of those policies on the ground, which is “irrelevant” to the first case. However, this evidentiary fine line has not always been clear or clearly observed. In the last days of trial, both the Co-Prosecutor and the Civil Parties argued that some evidence of the existence of these JCE policies would necessarily include evidence of their implementation. For example, during document hearings Co-Prosecutors emphasized, “[T]here is total interaction between the policy itself and its application[,]” and noted that one manner of establishing the existence of a policy was to “establish it on the basis of the fact that on the ground, lower down the line, it was implemented everywhere.” The defense challenged:
We have before us today, in very concrete terms, a situation in which the Co Prosecutors and the Civil Party Lead Co Lawyers are telling you that we cannot talk about the three other policies that do not concern Case 002/1 without talking about implementation on the ground. What does that mean legally speaking? It means that you are authorizing, in one way or the other, the presentation of the evidence, in this case, on policies that are not concerned by Case 002/1[.]
The Trial Chamber acknowledged that some evidence “points both to the existence or development of a policy and to its implementation,” but again said that only the existence and development of policies falling outside the scope of Case 002/01 would be considered by the Chamber in the judgment. [9]
In their submission for clarification, the Co-Prosecutors suggested additional overlap, seeking to enlarge the number of policies adjudicated in Case 002/01 by arguing that, to understand the context of the second forced movement, it is also necessary to understand the work cooperative policy, as they are directly related. [10] Apparently rejecting the Prosecution’s request, the Trial Chamber reiterated that the only two policies under examination in Case 002/01 are forced movement and the targeting of enemies of the regime for execution. Offering no additional elucidation on this matter, it repeated its legal advisor’s pre-trial instruction: “The presentation in general terms of all five policies was permissible to enable consideration of the manner in which policy was developed.” In the view of the Trial Chamber, “no further specifications as to the treatment of JCE policies are required at this time.”[11]