Preliminary Hearing Addresses Case 002/02 Scheduling, Objections, and Reparation Awards
The Trial Chamber of the Extraordinary Chambers in the Courts of Cambodia convened on July 30, 2014 to address preliminary matters in Case 002/02, the next phase in the trial of Khmer Rouge senior leaders Nuon Chea and Khieu Samphan. As outlined by the Trial Chamber previously in its agenda memorandum, the hearing addressed three primary issues: (1) the further specification of reparation awards for Civil Parties; (2) the scheduling and sequence of the trial and the review of potential witnesses; (3) and a review of preliminary objections and legal issues raised by parties to the upcoming trial. The courtroom hosted over 300 attendees and Defendant Khieu Samphan was present in the courtroom while defendant Nuon Chea was absent for health reasons.
President Nil Nonn first provided an overview of current business before the court. He briefly listed the topics to be addressed during the day’s oral arguments. He also addressed yesterday’s Supreme Court Chamber dismissal of Khieu Samphan’s appeal requesting annulment of the Trial Chamber’s severance order for Case 002/02, stating that the Supreme Court Chamber had upheld the severance decision and declared a stay of proceedings for issues outside of the scope of the upcoming trial.
Civil Parties’ New Lead Co-Lawyer Steers the Specification of Reparations
After officially opening the day’s hearing, President Nil Nonn recognized two new Civil Party Co-Lawyers, Ms. Marie Guiraud, Civil Party Lead Co-Lawyer, and Mr. Yiqiang Liu. Both lawyers stood to be recognized by the court. The day’s official proceedings then began with Ms. Guiraud’s statements concerning reparation awards for Civil Parties in Case 002/02. The President first noted that the Trial Chamber had been informed of the plan for Civil Party reparations in Case 002/02 and that the plan would be adjudicated in the event of a conviction. He then gave the floor to Ms. Guiraud.
Civil Party Lead Co-Lawyer Guiraud stated that she would further notify the court about the timeline and details of the plan for reparations in Case 002/02. She emphasized the critical nature of the symbolism of any adopted measures, and asked that the Trial Chamber condemn the accused and seek to have them bear the costs of reparations. She acknowledged that the defendants are indigent but reiterated the importance of collective and moral reparations as well as the defendants’ responsibility for them.
She went on to explain that, in order to arrive at the further specification of reparations awards, the Civil Party Co-Lawyers had consulted with civil parties in recent meetings and regional fora. She specified that the measures she would refer to were in line with these consultations, as well as the opinions of state partners, NGOs, and donors. The framework and approach for collective and moral reparations in Case 002/01 had used the same process, she assured the court. Ms. Guiraud related that the timeline, partners, budget, and donors have been identified for Case 002/02 reparations and that the next six months would be spent compiling a complete and detailed list. She then gave the floor to National Civil Party Lead Co-Lawyer Pich Ang so that he could present the proposed reparations.
Mr. Ang related lists of the current and new proposed reparations, which included existing memorial and memorialization projects, existing rehabilitation projects, existing documentation and education projects, new rehabilitation projects, and new documentation and education projects. He outlined them by category:
Existing Memorial and Memorialization Projects
⁃ Construction of Memorial Stupa in keeping with the religions of civil parties;
⁃ Statute depicting activities of the victims: forced marriage and living conditions;
⁃ Maintenance of the remains of victims.
Existing Rehabilitation Projects
⁃ Treatment and support from psychologists for victims and community;
⁃ Physical health support for civil parties who are elderly and indigent, including the construction of health and meditation centers.
Existing Documentation and Education Projects
⁃ Publication of full and summary judgments;
⁃ Production of a book detailing the participation of civil parties;
⁃ Compilation of a summary of crime sites and charges in the current phase;
⁃ Introduction of a chapter on Khmer Rouge history for school curriculums;
⁃ Creation of a website recognizing civil parties;
⁃ Development of fixed and mobile exhibitions about the genocide;
⁃ A scholarship for children of forced marriages.
New Memorial and Memorialization Projects
⁃ Regional bridges and roads bearing the names of memorialized victims.
New Rehabilitation Projects
⁃ Support and empowerment of civil parties by specific groups including victims of gender and sexual violence and members of minority groups;
⁃ Certification and identification of civil parties to recognize participation and provide access to available services (ID Cards);
⁃ Reparations and apologies.
New Documentation and Education Projects
⁃ Works authored by civil parties detailing facts related to charges in the current case;
⁃ Summary of facts of crimes and the charges from Case 002/02 to assist the public in understanding the nature of the charges;
⁃ VCD and digital recordings documenting the efforts of the civil parties in the trial;
⁃ Community screenings and distribution of these videos;
⁃ Oral history tellings in gatherings of civil parties that include youth participation;
⁃ Highlighting some positive stories of Cambodian history and culture through art, music, sport and storytelling.
Mr. Ang then stated that both existing and new projects would be further detailed in written document that would be provided in due course. He also informed the chamber that there had been a request for award of Cambodian nationality and that this would also be further detailed in writing. Finally, he mentioned that another issue, although not within the scope of collective and moral reparations, had been repeatedly raised by the Civil Parties – individual financial reparations to assist with the memorialization of individual victims. Mr. Ang concluded by offering his thanks to the court and taking his seat.
The prosecution and defense teams were given the opportunity to comment on the statements of the civil party. The prosecution, represented by Mr. Nicholas Koumjian, expressed general support for the reparations proposed. Nuon Chea’s defense team, represented by Mr. Son Arun, had no objections or comments. Khieu Samphan’s defense team, represented by Mr. Kong Sam Onn, had no objections but shortly reiterated that the award of reparations must only be made in conjunction with the conviction of individual defendants before the court.
President Nil Nonn then stated that it was time to move on to agenda item two, reviewing the status of preliminary objections and legal issues relevant to Case 002/02. He related that there had been numerous preliminary objections detailed in writing and that the chamber had ruled on which of these must be decided before evidentiary hearings could begin. He said that the chamber has been briefed on these issues and would issue its decisions on them as soon as possible.
Legal Issues Raised as Khieu Samphan’s Team Looks for Foundation
President Nil Nonn then related that the parties were asked to provide a list of legal issues to raise at the present hearing. The Khieu Samphan defense team had filed a request seeking clarification of how Case 002/01 would serve as a general foundation for further trials, among other issues that have already been addressed. Khieu Samphan’s defense was asked by the court to clarify this request.
Ms. Anta Guisse stood for the Khieu Samphan defense and stated that it was not easy to address this issue while awaiting the trial chamber verdict in Case 002/01. She noted that, although the parties have some initial reasoning from the court, they have no final results to base their comments on. She further explained her team’s perspective on the necessity of clarifying how this “general foundation” would function. Such clarification is crucial to any future trials in Case 002, she argued, because it identifies elements that will remain consistent between trials. Without clarification procedural and strategic decisions will be difficult, she said, expressing concern about elements that weren’t established in the first trial but which the prosecution may have the opportunity to bring up in the second trial. She then asked “Can we address issues that we were not allowed to address in the first trial?” and stated “We have identified such legal issues and hope they can be adjudicated to provide a fair trial.”
Ms. Guisse then argued that Khieu Samphan’s concerns about these issues are relevant and based on a close reading of the severance order. However, she stated, their team was only informed yesterday that the order had been upheld by the Supreme Court Chamber and therefore the team still needed to consider the ruling in relation to a number of legal and procedural issues that will almost certainly have a significant impact on the adjudication of Case 002/02. She stated that paragraph 85 of the Supreme Court Chamber’s decision upholding severance partially addresses some of these questions but reiterated Khieu Samphan’s frequent complaint that, without a final Supreme Court Chamber decision on the verdict in Case 002/01, it would be very difficult to prepare a defense for Case 002/02.
Prefacing her statement by reminding the court that she was speaking without the opportunity to gain an in-depth knowledge of the Supreme Court Chamber ruling the day before, Ms. Guisse stated that her understanding of paragraph 85 in that ruling is that, if the same bench of judges exists and no final judgment is rendered, legal conclusions from Case 002/01 cannot be applied to Case 002/02. Ms. Guisse finished her statement by reiterating that the parties had limited details about how Case 002/01 would serve as a general foundation for 002/02 and stated that “We need a list of issues that have and have not been adjudicated,” and “We need to know how witness testimony will be handled to ensure that evidence is not brought in through the back door.”
The other parties were then given an opportunity to respond to the issue raised by the Khieu Samphan defense. International Co-Prosecutor Nicholas Koumjian first addressed the question of using the “back door” to introduce evidence. He stated that the prosecution is not seeking to use non-adjudicated facts from Case 002/01, relating that “all issues remain open.” He then pointed out that the make-up of the bench will not be identical to the first trial and that legal issues would be argued anew. The basis for Case 002/02 will be the totality of all evidence including that from case 002/01, he said, reiterating that the defense and prosecution should be assured that all issues will be decided anew. Therefore, Mr. Koumjian argued, reading the forthcoming judgment in case 002/01 will help inform the parties but it need not be determinative as issues will be decided anew in the next trial.
The Civil Party Co-Lawyers had no comments on the issue, but Nuon Chea’s defense, represented by Mr. Victor Koppe, had a brief response, stating that “This will be a very important issue, the question of what ‘general foundation’ means.” Mr. Koppe said that he anticipated some interesting concerns would be raised by the the upcoming judgment. Is the severance a “management strategy or a “second trial?”, he asked. He noted that the uncertainty is problematic. He then attempted to illustrate this by using the example of witness pseudonyms, pointing out that their usage is not consistent with the idea that severance is merely a management strategy. He stated that while Duch has been interviewed extensively and spoken of by name, the parties are expected to refer to him by a new pseudonym in the current phase. Mr. Koppe suggested that this could point to the proceedings being a new trial. Mr. Koppe made the suggestion that a further initial hearing after the judgment in Case 002/01 could serve to clarify some of these issues.
President Nil Nonn then stated that the court would deliberate further in light of these statements.
Ms. Anta Guisse spoke up for the Kheiu Samphan defense in support of another initial hearing. She stated that a significant number of matters related to the next trial will need to be revisited after the Case 002/01 judgment.
Crimes Revisited
President Nil Nonn then turned his attention to the next legal issue and told the parties that they would each have ten minutes to discuss any planned attempts to re-characterize the crimes to be addressed in the second trial of Case 002.
Mr. Koumjian stood again for the Co-Prosecutors and informed the court that his office intends to appeal, as a matter of law, the initial decision in Case 002/01 that joint criminal enterprise of the third category (JCE3) is not a part of international criminal law during the period of the court’s jurisdiction. The appeal to Supreme Court Chamber will request that they find JCE3 was part of international criminal law in 1975. Mr. Koumjian stated that natural and foreseeable consequences, foreseen by the accused, should be the responsibility of the accused. This is very important for Case 002/02, he stated, outlining how rape and other crimes that will be addressed in that trail are the natural and foreseeable consequence of policies such as torture, forced marriage, etc.
Mr. Koumjian also stated the prosecution’s support for the request regarding further initial hearings. He then opined that maintaining the consistency of pseudonyms across proceedings would be helpful to all parties.
The Civil Party Co-Lawyers had no specific requests or submission regarding the crimes charged but reserved the right to make a submission at a later date if necessary. Similarly, the Nuon Chea Defense had no specific comments. Khieu Samphan’s Defense also reserved the right to make written submissions on this matter if the situation changes or new evidence is adduced.
Scheduling of the Trial and Sequencing of the Topics
President Nil Nonn then addressed item three on the agenda, the sequencing of proceedings for Case 002/02 and the review of witnesses, civil parties, and experts. Before allowing the parties to begin, he underlined the fact that the Office of Administration had made significant efforts to assure that resources will be available for the next phase and that the trial chamber was thankful for their work.
The President then stated that the court would like to explore the possibility for commencement of evidentiary hearings in Case 002/02 during late September and October of this year. He asked all parties to comment on their availability for the remainder of 2014.
The office of the Co-Prosecutors addressed their availability first, with Ms. Chea Leang relating that her office has been awaiting the commencement of the hearings on this important case. She stated that they were available for the remainder of 2014 and 2015. She related that the Co-Prosecutors will prepare so that evidentiary hearings commence as soon as possible.
She also addressed the issue of the number of days of hearings per week in the next phase, with the assumption that there will be an appeal in case 002/01. The Prosecution has no objection to the defense request that there be a reduction to 2-3 days per week of evidentiary hearings initially, to prepare an appeal if necessary. This schedule would increase later, after the appeal filings were complete.
Civil Party Lead Co-Lawyer Marie Guiraud then spoke and stated that the Civil Party representatives are at the disposal of the court. They are fine with the proposed start date and have no objection to a reduced hearing schedule in the instance of an appeal.
Mr. Viktor Koppe, speaking for the Nuon Chea defense, stated that they are available for the remainder of 2014 and 2015. He asked that the trial start as soon as possible and re-iterated his request that hearings for the next trial start at 7:30am and span the morning hours only because his client is more energetic and able to participate in the mornings.
Ms. Guisse spoke for the Khieu Samphan Defense, relating that they would experience difficulties in relation to resources if the evidentiary hearings commence before a final judgment is rendered on case 002/01, including any appeals. She stated that, with current resources, they cannot manage both simultaneously. She then stated again that resource issues, and the need for certainty on legal issues decided in Case 002/01, require that evidentiary hearings be delayed.
The next matter that was addressed in this category related to the proposed phases of the trial and the order in which these topics will be addressed. President Nil Nonn pointed out the Co-Prosecutors had submitted a proposed list of topics and a preferred sequence:
1. The S-21 Security Center, including Choeung Ek;
2. The treatment of the Vietnamese;
3. The treatment of the Cham;
4. The Tram Kok Cooperative and Kraing Ta Chan Security, including the treatment of Buddhists and Forced Marriage;
5. The 1st January Dam Worksite;
6. The Kampong Chhnang Airport Construction Site;
7. Au Kanseng Security Center;
8. Phnom Kraol Secuirty Center.
Noting that the Lead Civil Party Co-Lawyers had suggested a similar schedule, President Nil Nonn invited all parties to comment on the issue of topics and ordering.
The defense for Nuon Chea provided their perspective via Victor Koppe, who first explained that the defense has requested to call witnesses and experts on an issue not included in the submission of the Co-Prosecutors, namely the existence and nature of an armed conflict at the time of the alleged crimes. He pointed out that this matter has been listed by the trial chamber as an issue of fact to be adjudicated. Mr. Koppe stated that the defense feels that the specific existence and character of particular armed conflicts is essential to their case. The position of the Nuon Chea defense, as he explained, is that an internal and non-international armed conflict existed, both in parallel and entwined with an international armed conflict. Having the opportunity to prove this is essential to the defense against Case 002/02 named crimes, specifically regarding S-21 but also related to other matters, he said. Mr. Koppe then requested that this issue be the first matter addressed in Case 002/02.
Mr. Koppe stated that his team agreed that S-21 and the internal purge should be the next topics addressed. They are essential building blocks for the trial and the majority of witnesses will testify on these two topics, he said.
The Nuon Chea defense differs from the Prosecution on the subsequent topics, Mr. Koppe pointed out, preferring that the Genocide of Vietnamese and Cham and the Airport Construction Site be addressed next, in that order. These topics are related to and will build upon issues raised during the testimony considering S-21 and the Internal Purges and also follow from the armed conflict and relationship with Vietnam, he argued. Additionally, Mr. Koppe explained, the Cham issue is entwined with issues of internal security and sabotage that will be discussed during the consideration of S-21. This logical order is essential to the presentation of a coherent defense, Mr. Koppe explained before suggesting that the final issues in the trial should be the role of the accused and joint criminal enterprise. These issues of responsibility must refer to facts introduced in previous stages and therefore should come last, he claimed.
Mr. Koppe finished by saying that his team had nothing else concerning the topics of the trial but would like submit a request that two specific witnesses – one of whom is 96 years old and the other who is 80 – be allowed to testify first and via A/V link.
Khieu Samphan’s Consul, Anta Guisse, then stated that she agreed with Nuon Chea’s team on the order of the first and last topics, that the trial should start with the nature of the conflict and close by addressing the role of the accused. She went on to say, however, that addressing the other topics in the following order would be more chronologically correct, and would allowing for the evidence presented to be more coherently: cooperatives and work sites; security centers; specific groups and movement; regulation of marriages.
The Co-Prosecutors and Civil Parties were then given the opportunity to respond to these statements. Mr. Tarik Abdulhak, Senior Assistant Prosecutor, started by arguing that the prosecution’s proposed order best presents the clear and coherent structure that the court has asked for. He stated that their approach to trial segments that consist of broad issues that relate to the entire case is coherent and comprehensive.
First, Mr. Abdulhak stated, S-21 is the most important site and relates both to the targeting of enemies and the role and responsibility of the accused. Because S-21 victims were from everywhere in Cambodia and were sent there in relation to all of the accused crimes, S-21 must be first, Mr. Abdulhak said. Following this with the targeting of specific groups, operation of collectives and worksites, and forced marriages will allow the Prosecution to refer to the evidence provided during the S-21 segment and expand on it.
Addressing the defense request to treat the nature of the armed conflict as a separate segment, Mr. Abdulhak argued that this issue will be discussed and debated throughout all phases of the trial as all the crimes charged are related to grave breaches of the Geneva Conventions. He said that it is additionally not helpful to hear this issue separately because the topic of an international armed conflict does not constitute a core theme and is not suitable for a separate segment.
Reminding the court that the prosecution has the burden of proof, Mr. Abdulhak requested that the prosecution be allowed to follow an order that allows them to best present a coherent picture of the evidence. This would include allowing the prosecution to address the authority structure of the Khmer Rouge and the roles of the accused first, as this would set the framework that the rest of the evidence will relate to. Mr. Abdulhak then finished by stating that the prosecution does not oppose the request to hear elderly witnesses first. If their testimony is relevant there will be no objections, he said before making his own practical request that the court continue the approach of considering witness selection and providing witness lists segment by segment.
Mary Guiraud then spoke for the Civil Party Lead Co-Lawyers, making one brief remark clarifying an earlier comment. She stated that the Civil Parties wish to support the prosecution’s suggested order of topics, as they have the burden of proof and should be able to decide the order that best allows them to supply coherent evidence.
She then turned to her Co-Lawyer, Pich Ang, who offered his thanks for her clarification and then attacked the remarks by the defense teams as to the order of issues. Mr. Ang stated that what is important is for the trial to be effective. Allowing the question of armed conflicts as the first issue would disrupt the timing and flow of proceedings, he argued. Mr. Ang then echoed the prosecutors’ statement that the issue of armed conflict would be heard throughout the trial as it is interlinked with other facts. Mr. Ang finished by stating that hearing from advanced age witnesses first is appropriate and that Civil Parties of advanced age should also be heard at the beginning of trial.
Review of Preliminary Objections and Legal Issues
President Nil Nonn then expressed that the court would find on these issues as soon as possible and turned to the issue of documents, exhibits and witness lists. After briefly addressing filings of the parties regarding documents, he turned to their lists of potential witnesses, Civil Parties and experts. He then reminded parties that they may apply for a closed hearing. Otherwise, pseudonyms will be used.
Challenges to Witnesses
Giving each party thirty minutes to address this issue, President Nil Nonn mentioned that the witness lists submitted thus far include 88 Civil Parties, 20 experts and 121 witnesses as well as 36 alternate witnesses as supplied by the Co-Prosecutor. The President then suggested that the parties also address the potential reduction of lists during their discussion. Before turning the issue over to the Prosecution, President Nil Nonn reminded all parties that the witness lists that were submitted late can’t be addressed at this hearing as they were not timely and he reminded all parties that failure to submit timely lists risks delaying the trial.
For the prosecution, Mr. Koumjian briefly addressed some general issues, stating that the Prosecution wants to assist the trial chamber in selecting the witnesses and documents that are most helpful to deducing the truth. The extensive experience of all parties with the available evidence allows this to be done with increasing efficiency, he explained. While his office understands the need to reduce witness lists, and have reviewed them and dropped several witnesses in the last few days, he argued that the remaining witnesses were all essential. Of the 123 witnesses finally proposed, he detailed, all are crime-based and their testimony will take approximately 118 court days. Because the Prosecution must prove all elements of each crime alleged, at each site alleged, beyond a reasonable doubt, they require witnesses to testify to these elements and their witness list reflects the minimum number of witnesses that are necessary to do this, Mr. Koumjian said.
Mr. Boyle then stood to address other issues for the Prosecution and respond to issues raised by the Khieu Samphan defense. Khieu Samphan’s defense has raised objections to proposed witnesses for whom it does not yet have access to all statements and interview notes. Mr. Boyle explained that the prosecution has requested permission to disclose statements made pursuant to ongoing cases in Case 003 and 004 but that the Co-Investigating judges have not yet ruled. He pointed out, however, that a number of documents and statements have been supplied in the time since the Khieu Samphan objections were filed.
Challenges to Civil Parties and Experts
The hearing continued, and primarily addressed challenges to witnesses, civil parties, and experts, who were referred to by their pseudonyms.
Khieu Samphan’s defense objected to three expert witnesses and one reserve expert witness on account of the fact that they had previously worked for organizations researching the Khmer Rouge or the ECCC. The Co-Prosecutors stated that the court has ruled that this is not a disqualifying issue. This issue can be considered when weighing the testimony but does not affect relevance.
Mr. Boyle also addressed Khieu Samphan’s objection to one expert witness and one reserve expert witness that were listed as general experts. The objection was not based on a challenge to the relevance or value of the evidence they would provide or their expertise, Mr. Boyle stated, but rather that general experts simply would be repetitive by nature. The Co-Prosecutors argue that these experts have vast experience and will provide non-repetitive evidence spanning and connecting multiple issues, Mr. Boyle related, before further countering that this approach reflects efficiency, not repetition, and is conducive to revealing the truth.
Mr. Seng then stood to respond to the rest of objections on behalf of the Co-Prosecutors but requested that these be discussed in a closed session as the details of many of the objections would point directly to the identity of the individuals discussed. This request led to some extended questioning and discussion by the bench. Mr. Kong Sam Ong, Co-lawyer for Kheiu Samphan opined that pseudonyms were sufficient and therefore a closed session was not necessary. The Trial Chamber also followed this reasoning, stating that, as none of the individuals to be discussed were subject to protective measures, there was no need for a closed session.
Mr. Seng then commenced with the Prosecution’s position on other objections from Kheiu Samphan’s defense. The first concerned an objection to the recall of a witness whose testimony would be repetitive, according to the defense. Mr. Seng argued that this witness has valuable, unique, and probative information that would help with prosecution. This witness has repeated his willingness to help, and the Prosecution believes he will provide new details about the crimes to be discussed in the coming trial, Mr. Seng said.
Next, the Civil Party Co-Lawyers addressed Khieu Samphan’s objections to civil parties and experts. Ms. Guiraud provided the following arguments:
1. The expert on gender-based violence was objected to because they were allegedly not qualified to be an expert and also did not use reliable sources of data collection. Ms. Guiraud countered this defense argument, explaining that this expert has specialized skills and can explain the subject in a way that makes the issues clear to the court. She further noted that the expert has written an important and relevant book on gender-based violence in the Khmer Rouge Regime and has conducted extensive interviews on the topic. The expert has taught, published, and been involved with this issue for more than 17 years, she explained.
2. An objection had been raised questioning the expertise and educational background of an expert on the treatment of Cham during the Khmer Rouge regime who would provide evidence related to crimes against humanity and genocide. The objection was also based on the expert being a victim, a witness, and having previously worked for DC-Cam and the ECCC. Ms. Guiraud argued that the book written by the expert includes important information and evidence as it describes the rebellion of the Cham, forced evacuation, execution and massacre in 1978 as well as the Cham sent to S-21. This research is important and will shed light on the truth, she said. Additionally, a previous ruling of chamber holds that the impartiality of witness goes to the weight of their testimony and not to relevance and admissibility, she pointed out.
3. As to an objection to a witness proposed to testify on statistics regarding victims, specifically Vietnamese and Cham. The Khieu Samphan defense claims this expert has no special knowledge or expertise on demographics in Cambodia. Ms. Guiraud responded, arguing that the expert at issue has a lifetime profession of demographics and holds a Masters Degree in Econometrics and a PhD in Demographics. She further noted that this expert has worked for the ICTY and Dutch government and has published extensively on the subject of demographics. The objection fails to recognize general expertise as opposed to expertise concerning a specific location, she stated before pointing out that the Court has accepted this expert and cited their research previously. A further objection based on bias regarding ICTY employment has been addressed by the court – this goes to weight, not relevance.
After a break for lunch, discussion of the challenges to witnesses continued. Ms. Chea Leang, National Co-Prosecutor, explained their challenge to a witness submitted by the Nuon Chea defense. She argued that the defense description says that the witness “might” know about facts related to the case. However, the witness has never been interviewed or given a statement and so the relevancy of this witness has not been proven, she said.
Marie Guiraud then stood again for the Civil Parties and made some general remarks regarding the reduction of witness lists. She pointed out that the Civil Party Co-Lawyers represent 3000+ civil parties and, while it has always been understood that not every party would be able to testify, the Civil Parties that do testify must be representational of all. The 67 witnesses proposed were all direct victims of one of the crimes charged here, she stated, and only two or three victims will testify on each topic. However, Ms. Guiraud identified forced marriage as the one exception to this economy. Due to the fact that the Civil Parties requested that this crime be included in the trial, a request that was only recently granted, it is up to them to introduce additional evidence necessary to describe this crime and illustrate it’s effect on the Civil Parties, she said.
Regarding the objections of the Khieu Samphan defense to proposed Civil Party testimony, Ms. Guiraud stated that her office has provided sufficient evidence to illustrate the relevance and probative value of this testimony. It is necessary to hear from these parties on the role of the accused, she said
Mr. Pich Ang then took over for the Civil Parties to address objections of the Khieu Samphan defense about to a particular civil party. Mr. Ang argued that protective measures were reasonable as it would be the only opportunity for this witness to speak about the activities of the accused. He also said that defense objections are without any basis as this testimony will speak directly to the involvement of the accused and their role in training sessions for the Khmer Rouge. Mr. Ang identified this Civil Party as being able to provide rare and most valuable testimony that is necessary for illustrating the joint criminal enterprise.
Ms. Guiraud took back the floor to argue against objections to a specific civil party and a specific expert. Khieu Samphan claims that the civil party has already testified, and must therefore be excluded, she represented. However this Civil Party has very important information and should be allowed to testify, she stated. The objection to the expert witness is also invalid, she said. She insisted on the importance of this expert on forced marriage’s testimony, relating that the witness had both general expertise on forced marriage and particular knowledge of forced marriage in Cambodia. She went on to point out that this researcher speaks Khmer and has conducted research in Khmer.
Nuon Chea’s defense followed as Viktor Koppe exclaimed that, while they would not interfere with the preceding discussion between the Khieu Samphan defense and other parties, they did have one issue to address. Mr. Koppe said that an objection to a witness that had been raised by the National Co-Prosecutor, Ms. Chea Leang, would be challenged by his team if the court allowed it.
After a brief huddle on the bench, President Nil Nonn asked Ms. Leang to give further details on her objection, noting that the witness objected to was no longer on the proposed witness list. Ms. Leang then stated that she was confused as to what objection was being discussed.
At this point Mr. Koppe interjected to clarify – the National Co-Prosecutor’s previous objection was to a previous proposed witness that is no longer on the witness list. However, there is a new proposed witness that shares the characteristics objected to in the case of the previous witness. Mr. Koppe stated that he sought to discuss these previous objections in relation to the current proposed witness.
Although it was not yet entirely clear what Mr. Koppe’s argument sought to address, he continued by saying that his office has made every effort to reduce their witness list. They have reduced it by almost 90% in relation to their initial list, he stated, and at this point all witnesses are essential and their testimony is relevant. He again decried the National Co-Prosecutor’s objection to his witness.
Mr. Koppe then addressed the National Co-Prosecutor’s objection to three other witnesses. He related that he had made repeated requests to call these witnesses and others similarly situated. Mr. Koppe went on to complain that, although the names of these witnesses had been redacted from prior reports, documents, and transcripts, he was allowed to mention them by name in closing oral statements for Case 002/01 and that the names were not redacted from the published transcript. Mr. Koppe argued that the importance and identity of these witnesses has been recognized, as well as their centrality to the Nuon Chea defense theory. Therefore, Mr. Koppe asked, would he be able to use their real names throughout the remainder of the trial?
The discussion on this topic continued, with the national co-prosecutor reasserting her objections and the Trial Chamber Judges turning off their microphones for lengthy private consultations. It eventually became clear that, despite all the obfuscation, the proposed witnesses being discussed were high officials in the Cambodian government. The debate turned to whether there was any legal justification for these individuals to avoid testifying.
In the end, the Trial Chamber granted leave for Nuon Chea’s defense team to use the real names of the controversial proposed witnesses: Heng Samrin, Ouk Bunchhoeun, and Mr. Chea Sim.
Mr. Koppe raised one other objection during these discussions. He sought the re-classification of a listed witness who had been previously listed as a Civil Party. Mr. Koppe asked that this misclassification be fixed.
At this point Mr. Kong Sam Onn, Co-Lawyer for Khieu Samphan, sought to respond to the various arguments made against their team’s witness objections. First, addressing his objection to a civil party witness, Mr. Onn stated that the request to recall this civil party was not timely. The witness was called in 002/01, he related, but refused to appear and demanded protective measures. Although the witness was purportedly present when Khieu Samphan and Nuon Chea made a political speech in 1976 and had participated in political trainings given by the defendants, he said, evidence regarding these occasions was previously introduced in Case 002/01. Therefore the witness is not timely, is repetitive, and is outside the scope of this case, Mr. Onn concluded.
In relation to the expert on gender-based violence, Mr. Onn argued that although this supposed expert has written a book, the book was really just a collection of interviews with women, many of whom were not interviewed by the author herself but rather by students. The book has never been translated into Khmer and contains no expert analysis, he pointed out. In addition, Mr. Onn said, the stories in the book are inaccurate. To illustrate, he provided an example of a Cambodian proverb that was misstated in the book and argued that the quality of this research, and therefore the probative value of the witness, is low.
Ms. Guisse followed up by making the request that she have additional time to review documents and wait for additional documents to be available before submitting additional objections. Noting that the Khieu Samphan objections only refer to five witnesses out of the entire witness list, she asked for 20 days to address all the issues in writing. This, she explained, was aimed at reducing the list of witnesses and eliminating irrelevant and repetitive testimony.
To respond to specific witness objections, Ms. Guisse referred to a trial chamber judgment which states that expert witnesses must testify objectively and neutrally, unlike a factual witness. She continued to argue that the experts her team challenged on the basis of their personal background and professional affiliations cannot give objective and neutral testimony and therefore should be regular witnesses, not experts.
Ms. Guisse also argued that judicial economy is fulfilled only when experts are of the most qualified kind. Less qualified experts are not worth the court’s time and have been objected to. She stressed that these requests can be further qualified in writing if the court desires.
The Court then conferred and President Nil Nonn stated that the current oral arguments are sufficient and no additional written statement is necessary.
Ms. Guiraud then briefly spoke for the Civil Parties in the interest of clarifying a previous objection by Mr. Koppe regarding the misclassification of witnesses. Citing the court rule that says that Civil Parties cannot be heard as witnesses within the same case they are party to, Ms. Guiraud explained that, although her witness had previously been a civil party, they would testify as a witness during the upcoming trial.
At this point President Nil Nonn related to the parties that they would have a decision on these issues in due course and reminded everyone that the Judgment in Case 002/01 would be issued during a 9am hearing on Thursday, August 7th. He then called for the conclusion of the day’s hearing.