The trial proper of the surviving leaders of the Khmer Rouge movement finally kicks off at the UN-backed Cambodia tribunal in Phnom Penh on Monday. The first week will hear opening arguments: the presentation of evidence begins on December 5. Around 4,000 civil parties will be involved – people recognised by the court as victims of the crimes that constitute Case 002, as the trial of the leaders is known.

By Robert Carmichael, Phnom Penh

Unfit for trial
The number of defendants was cut by the court from four to three when it ruled that Ieng Thirith, the Khmer Rouge’s social affairs minister, was suffering from dementia and was consequently unfit for trial, on November 17. The remaining defendants – the youngest of whom is 80 – deny charges of genocide, war crimes and crimes against humanity for their alleged roles in the death of up to 2.2 million people during the movement’s rule from 1975-79.

They are effectively on trial for devising the policies that led to so many deaths from execution, starvation, disease and overwork. The defendants are: 85-year-old Nuon Chea, who is known as Brother Number Two and was the deputy to the movement’s late leader Pol Pot; head of state Khieu Samphan, who is 80; and foreign minister Ieng Sary, who is 86.

Profoundly important
International co-prosecutor Andrew Cayley says the trial is “profoundly important”. “The accused were some of the highest-ranking individuals in the Khmer Rouge, responsible, allegedly, for committing appalling crimes against hundreds of thousands of persons, and in the process changing the course of Cambodian history,” he says.

Cayley says the trial will show that accountability is attainable, and should deliver some sort of closure. “There was a time when these accused were thought to be untouchable,” he says. “Now, although they have had to wait 30 years, Cambodians can see what the rule of law means – that no one is above the law, particularly when accused of committing crimes of the largest magnitude.”

Extraordinarily complex
Case 002 is extraordinarily complex, which is why the Trial Chamber decided in October to conduct a series of mini-trials rather than run one lengthy trial that would take years, with the risk that one or more defendants died without a ruling on their guilt or innocence. That decision means it can hand down judgements as the trial proceeds.

The first mini-trial will deal primarily with the crimes against humanity involved with the two forced movements of population in 1975 – the initial one when the Khmer Rouge emptied the cities, and the second when they ordered people moved around the country to areas where labour was needed. Tens of thousands died.

But the first mini-trial is likely to take two years, and some observers and civil party groups fear that crimes such as genocide and war crimes – which at this stage are not part of the first mini-trial, although the Trial Chamber judges said they could be included “where circumstances permit” – might never be heard.

Full gamut
Clair Duffy, a tribunal monitor with the Open Society Justice Initiative, is hopeful the court will get around to hearing evidence about the full gamut of crimes, despite the obvious risks associated with the age and health status of the defendants. Duffy says failure to hear evidence of all the crimes would tarnish the legacy of the tribunal, which was established in part to render an accurate historical record of the crimes of the Khmer Rouge.

“So if people were targeted because of their ethnicity or religion, I think it's very important that (this) court tells that part of the story – and accurately,” she says of the genocide charge, which refers to the Khmer Rouge’s alleged efforts to destroy Cambodia’s Cham Muslims and ethnic Vietnamese.

Welcome boost
The start of Case 002 will be a welcome boost to the court, which in recent months has lurched from one crisis to another around allegations that investigating judges have engaged in judicial misconduct in their dealings with two further cases that the Cambodian government has said it would not permit to reach trial.

Each of the five suspects in those two cases – known as Cases 003 and 004 – is alleged to be responsible for tens of thousands of deaths. Victims’ groups and rights organisations want the UN to investigate what has gone on at the court. But the UN has so far resisted mounting an investigation, reportedly because its chief legal officer believed a probe might reveal information about wrongdoing that could damage Case 002, the flagship trial.

In its first case the court last year the court sentenced the Khmer Rouge’s security chief, Comrade Duch, to 30 years after finding him guilty of war crimes and crimes against humanity for his role in the deaths of more than 12,000 people. Duch has appealed against his conviction, and the verdict will be handed down on February 3 next year.