More than six months into the first—and likely only—trial of three senior Khmer Rouge leaders, proceedings still seem to be creeping along, with only 18 witnesses heard by the Trial Chamber since December.

By Julia Wallace, Phnom Penh

Part of the lassitude in Phnom Penh is due to the many recesses scheduled by judges—with only 78 days of trial proceedings over 550 days. Few of the witnesses—who are mostly elderly, confused and nervous—have provided illuminating testimony. Most have been unable to give evidence directly relevant to the trial’s first phase, focused on forced evacuations.

Worse, some have flatly denied facts they are known to have witnessed. Others have appeared intimidated by the defendants or the courtroom setting. One high-profile former Foreign Ministry aide gave blank, obfuscatory responses. Two other witnesses, former Khmer Rouge cadres from a remote northeastern province, were poorly coached and provided no useful information. Last month, a witness testified he could not read, then recollected having read a document. “You are illiterate, don’t understand politics, confused and forgetful,” defence lawyer Michael Karnavas bluntly told the man, Oeun Tan.

Lord of the Iron Staff
Pol Pot’s nephew Saloth Ban, did give insight into the workings of Khmer Rouge Ministries, but undermined himself with bizarre spiritual and legal ramblings. He told the court a minor deity, the Lord of the Iron Staff, appeared to him and announced the ECCC was unjust. The next day, he explained to lawyers that he had invented his own court case, Case 000. “The Case 000 that I referred to is that I had my rational thinking and that I compiled a personal document for myself to progress and for the prosperity of my family. However, if this progress has an impact on the world, of course it is ok,” he said to general bafflement.
Some of this confusion is inevitable in a trial for crimes that occurred nearly 40 years ago. Witnesses who were teenagers at the time are approaching old age. Still, observers say the Trial Chamber bears some blame for failing to schedule witnesses in a meaningful order and for handing over questioning to co-prosecutors rather than taking the lead as they did in the tribunal’s first case.

“People are kind of lost. It’s not an engaging narrative for people. The general area of control, delegating authority to the prosecution, has been the real problem. There are a lot of consequences that come from judicial leadership within a trial, and now they’re doing it like a half-civil law trial, half-adversarial trial,” said Anne Heindel, a legal adviser to the Documentation Centre of Cambodia who has been monitoring the tribunal.

The case was “severed” into a number of smaller “mini-trials” in September, after it became obvious that there was no manageable way to deal with the mammoth indictment in one trial. The charges in this first mini-trial, known as Case 002/1, relate only to forced evacuations by the Khmer Rouge. The regime’s brutal execution grounds, worksites and prisons will be examined later. Charges of genocide, religious persecution, and war crimes are not yet being considered.

Prosecutors have pleaded that the scope be widened to reflect the varied criminality of the accused. In October, they sought the inclusion of a variety of worksites, cooperatives and purges. After their proposal was refused, they asked for several execution sites and prisons related to the evacuations to be included. Denied. Acting Co-Prosecutor William Smith said he would ask the Trial Chamber again to reconsider the severance if judges do not act. “We have a responsibility to make sure the accused are on trial for the most representative, egregious and pervasive crimes it is alleged they committed,” he said.

Unlikely second “mini-trial”
It is expected that judges will eventually be forced to broaden the scope of the case, because the trial is moving so slowly—and the accused are so old—that nobody believes there will ever be a second mini-trial. Case 002/01 will probably be the only public reckoning for the Khmer Rouge leaders’ crimes. “It’s fine to split the indictments to get the judgement faster, but it should have been done with representational crime sites,” laments Heindel. “Nobody understands what they’re doing.”