Trial Chamber Issues Formal Warning to Khieu Samphan and Nuon Chea Defence Teams

The Trial Chamber acted late Friday to affirm its control over Case 002/02.  President Nil Nonn issued a stern, formal warning to all defence team lawyers for both Khieu Samphan and Nuon Chea that they are in jeopardy of being sanctioned for professional misconduct.

Short of abdicating control of the trial, the court had little choice.  On October 17, 2014, after declaring in their opening statements their intention to follow their clients’ instructions to boycott the trial proceedings until their clients’ outstanding demands were met, Son Arun, Victor Koppe, Kong Sam Onn and Anta Guissé walked out of the hearing. Neither did any defence counsel appear at the trial management meeting of October 21, 2014, nor submit to the judges any “valid justification” of why they breached the court’s explicit order of October 20, 2014, that all parties were to attend that meeting.

The Trial Chamber dismissed the justification the Nuon Chea defence team had given for the boycott, that the four judges who are the targets of their disqualification motion must recuse themselves from the trial proceedings until a ruling is made on their application. Citing Internal Rule 34(5), the court stated that the judges indeed are authorized to continue sitting pending the decision.

As the trial management meeting was called to explore the accused Khieu Samphan’s expressed requirement for more of the court’s resources in order to proceed with the parallel trial and appeal preparation, the Trial Chamber took a dim view of Khieu Samphan’s defence not showing up to even discuss this stated reason for the boycott and the possible resolution of any such resource problems. The Chamber emphasized that it had “not been able to form a complete view of the insufficient resources raised by the Khieu Samphan defence team…due to counsels’ unexplained absence” from the critical meeting.

 The memorandum cited Internal Rule 38: Misconduct of a Lawyer:

“The Co-Investigating Judges or the Chambers may, after a warning, impose sanctions against or refuse an audience to a lawyer, if in their opinion, his or her conduct is considered offensive or abusive or obstructs the proceedings, amounts to abuse of process, or is otherwise contrary to Article 21 (3) of the Agreement. The Co-Investigating Judges or the Chambers may also refer such misconduct to the appropriate professional body.” 

The bench ruled that the aforementioned behavior of the defence counsel amounted to an obstruction of the proceedings subject to sanctions and that the memorandum “constituted official warning for misconduct to national and international counsel for both Khieu Samphan and Nuon Chea….”

The Chamber ordered all defence counsel for Khieu Samphan and Nuon Chea to appear at another trail management meeting to be held in camera on Tuesday, October 28, 2014, at 9:00A.M., for a final opportunity to discuss current resource issues with the Trial Chamber.    

Also on the meeting agenda is a discussion of the co-prosecutors’, October 22, 2014, request to have the Trial Chamber assign amici curiae counsel to facilitate the proceedings in Case 002/02.

Stating the obvious need to find a way out of the current impasse, and to avoid it being repeated on the same grounds in the future “if a precedent is set that rewards such tactics,” the co-prosecutors have asked that amici curiae be appointed to remedy the situation. The co-prosecutors advocate that as “friends of the court”, the amici curiae “could assist in safeguarding fair trial rights” as well as ensuring  an “expeditious trial.”

In their application of October 23, 2014, the co-prosecutors argue forcefully that “there are no procedural or ethical rules that permit counsel to simply defy court orders on their clients’ instructions.  No criminal court can function effectively if it is left to the Accused to decide which court orders their counsel will or will not obey.”

Evidentiary hearings due to begin on Monday, October 27, 2014, were postponed until further notice and pending the outcome of the trail management meeting of next week.

These are strong moves by the court to assert its control over the proceedings. The court order also provides a face saving mechanism as well as incentive for counsel for both of the accused to return to the court even though they have been ordered by their clients to boycott the trial.

But the appointment of amici curiae may have more threat than substance. Information provided by Mr. Isaac Endeley (Chief of the Defence Support Section), to the trial management meeting held on October 21, 2014, was that the hiring process for national counsel takes  approximately six weeks, while that for international counsel takes six months.  Khieu Samphan is 83; Nuon Chea is 88.