Severance Order Issues
During the 5 April 2011 Trial Management Meeting and the 27 June 2011 Initial Hearing for Case 002, The Trial Chamber had indicated that the sequencing for the hearings would likely occur in the following order:
a) The structure of Democratic Kampuchea;
b) Roles of each Accused during the period prior to the establishment of Democratic Kampuchea, including when these roles were assigned;
c) Role of each Accused in the Democratic Kampuchean government, their assigned responsibilities, the extent of their authority and the lines of communication throughout the temporal period with which the ECCC is concerned; and
d) Policies of Democratic Kampuchea on the issues raised in the Indictment.
At that point, the Trial Chambers had not yet reached a decision regarding the separation of Case 002’s proceedings. However, most likely triggered by concerns about the complexity of Case 002 as well as the health conditions of the Accused, Case 002’s Severance Order, dated 22 September 2011, officially divided the proceedings into discrete cases that incorporate particular factual allegations and legal issues:
A) The structure of Democratic Kampuchea;
B) Roles of each Accused during the period prior to the establishment of Democratic Kampuchea, including when these roles were assigned;
C) Role of each Accused in the DK government, their assigned responsibilities, the extent of their authority and the lines of communication throughout the temporal period with which the ECCC is concerned
D) Policies of DK
E) Factual allegations described in the Indictment as population movement phases 1 and 2; and
F) Crimes against humanity including murder, extermination, persecution (except on religious grounds), forced transfer and enforced disappearances (insofar as they pertain to the movement of population phases 1 & 2)
This Severance Order was pursuant to Internal Rule 89ter, which was adopted on 23 February 2011 and grants the Trial Chamber the permission to separate the proceedings “in such order as [it] deems appropriate.”[i]
OCP’s appeal against Severance Order
On 18 October 2011, the Trial Chamber rejected the OCP’s Request for Reconsideration, which sought for the Trial Chamber’s reconsideration and revision of the Severance Order such that the scope of Case 002/01 include Phase 1 but exclude Phase 2, and add the following nine crime sites: the District 12 and Tuol Po Chrey execution sites; the S-21 security centre, including the purges of cadres from the New North, Central (Old North) and East Zones sent to S-21, but excluding the Prey Sar worksite; the North Zone, Kraing Ta Chan, and Au Kanseng security centres; the Kampong Chhnang Airport construction site; and, the Tram Kok cooperatives.
“On 8 October 2012, the Trial Chamber rendered the Impugned Decision, denying the [OCP’s] Request for Expansion with respect to District 12 and S-21, but granting the requested incorporation of Tuol Po Chrey, insofar as they […] occurred immediately after the evacuation of Phnom Penh […], but not otherwise extending to killings that occurred between 1976 and 1977.”[ii]
On 8 February 2013, the SCC declared the Severance of Case 002 to be invalid. As explained in Issue 53 of the Khmer Rouge Trial Monitor, the SCC overturned the partial denial by the Trial Chamber of the OCP’s request to expand the scope of the first trial in Case 002; this was on the grounds that the original severance of Case 002 issued in September 2011 and its subsequent related decisions lacked clarity and reasoning. Additionally, the Supreme Court Chamber (SCC) ruled that the Trial Chamber had also failed to give the Parties time to be heard before the Court had severed Case 002 and defined the scope of 002/01. After ruling the original Severance Order to be invalid, the SCC maintained that the Trial Chamber would still have the power to reassess a mode of severance for Case 002 after inviting submissions from the Parties and taking all relevant and legitimate factors into account.
As noted in Issue 69, on 23 July 2013, the SCC issued a summary of reasons for dismissing the immediate appeals by the OCP and the Nuon Chea Defense against the Trial Chamber’s Second Decision on Severance. These appeals argued that the Trial Chamber failed to ensure the representativeness of the charges in Case 002/01 and urged the SCC to expand the scope of the trial; the OCP sought to include charges related to S-21 while the Nuon Chea Defense argued that “reasonable representativeness” required the inclusion of genocide charges as well as some crimes alleged at cooperatives and work sites. However, the SCC declared that the severance order “was not so unreasonable as to warrant appellate intervention.”
Problems Arising due to Severance Order
During the course of Case 002’s proceedings, the Chamber dealt with many problems regarding the scope of 002/01 arising from this Severance Order. For example, as early as December 2011, there were already questions about what “exceptional circumstances” would the Trial Chamber allow the Parties to ask questions beyond the aforementioned issues of the first trial segment; moreover, even so early on, the parameters for the questioning of Civil Parties and witnesses were remarkably unclear. Throughout the course of the trial, the defense and the OCP would argue over whether certain topics—such as dams, S-21, purges, time periods extending beyond 1975-1976, religious persecution, forced marriage, among others—were outside of the scope of the current trial, and thus invalid.
Throughout the course of cross-examination, there were consistent objections to such out of scope questions, and this was mostly due to the ambiguity that surrounds Case 002’s Severance Order. The lack of clarity in the Severance Order, which thereby allowed for inconsistent rulings by the Court, can be seen in Week 52 of the Evidentiary Hearings ( Issue 57). During that week, questions beyond the scope of Case 002/01 continued to be raised. While the President maintained a close check on subjects such as the evacuation of Kampot, the war with Vietnam in 1978, and forced marriage straying outside of the case’s scope, the Court granted more leeway with questions on purges. The defense objected several times to OCP questioning on purging, but the Court did not sustain such objections on the grounds that, though the questions related to purging, they were relevant to the implementation of CPK policy. Moreover, during the last document hearing for Case 002/01 (Issue 65), Khieu Samphan defense counsel Anta Guissé raised several objections regarding the admissibility of documents as well as the issue of implementation of policy versus the existence of policy, which came up twice with documents presented by the OCP. While the OCP attempted to define separate the two ideas, Anta Guissé maintained that implementation and existence are inseparable when brought up within the court; both she and Victor Koppe displayed intense frustration with the Court’s application of the Severance Order in that week.
In a more dramatic week for the Trial Chamber, during week 41 of Evidentiary Hearings (Issue 46), the President had to repeatedly remind the Prosecution to limit its examination to questions related to the first and second phases of evacuation. Prosecutor Raynor argued that the OCP’s questions were indeed relevant because they involved the authority and communication structures in the DK regime, which he called an “overarching principle” of Case 002/01. In response to this, Ianuzzi, defense counsel to Nuon Chea at the time, declared that Raynor’s submissions depended on whether the Court accepts the “fiction” that there would be further Case 002 mini-trials. Situations like these illustrate the deep confusion and frustration towards the Severance Order felt by all members of the court.
Authored by: Stephanie Fung
[i] Severance Order, 22 September 2011: http://www.eccc.gov.kh/sites/default/files/documents/courtdoc/E124_EN.PDF
[ii] “Decision on the Co-Prosecutors’ Immediate Appeal of the Trial Chamber’s Decision Concerning the Scope of Case 002/01”, 8 February 2013: http://www.eccc.gov.kh/sites/default/files/documents/courtdoc/2013-02-11%2018:23/E163_5_1_13_EN-1.PDF