AIJI is publishing this report as a separate addendum to the regular weekly monitoring
report in order to discuss the 13 November 2012 appeal hearing before the Supreme
Court Chamber (SCC) on Accused Ieng Thirith’s unconditional release from detention.
This report describes and analyzes the Chamber’s decision, released on 14 December
2012, to agree to most parts of the Appeal. In addition, this report’s attention to the
SCC’s 13 November hearing and subsequent decision builds on the detailed summary
and analysis found in the AIJI “Special Report on Ieng Thirith’s Fitness to Stand Trial,”
which was published in November.
Summary of KRT Trial Monitor Issue No. 41 – Hearing on Evidence Week 36 (22-25
This week, the Trial Chamber heard testimonies from three Civil Parties and two
witnesses. The testimonies mainly focused on experiences during the evacuation of
Phnom Penh, as well as the tough conditions immediately following the first evacuation.
The testimonies also touched on the treatment of Lon Nol soldiers and hospital patients
during the first evacuation.
The Chamber heard legal arguments and issued two important rulings this week: First,
the Court ruled that Civil Parties may state the suffering they endured during the entire
Democratic Kampuchea regime, instead of having Civil Parties limit their statements to
those relevant to events covered in Trial One of Case 002. Second, the Chamber ruled
that Parties may not question witnesses based on expert witness analysis, if that expert
has yet to appear before the Court.
Ieng Thirith, alias “Phea,” is one of four Accused in Case 002 at the ECCC. She was
indicted on 10 September 2010 for crimes against humanity, genocide, and grave
breaches of the Geneva Conventions of 1949. However, on 21 February 2011, Ieng
Thirith’s Defense filed for an assessment of the fitness to stand trial of the Accused and
asserted that, “the mental condition of the Accused inhibits the Defense in its ability to
prepare for the forthcoming trial.” On 17 November 2011, after multiple hearings and
expert evaluations, Ieng Thirith was found unfit to stand trial on the basis of a mental
condition. The Trial Chamber severed Ieng Thirith’s case from the others in Case 002 to
avoid delay of the other Defendants’ trial, and ordered her immediate and unconditional
release. The OCP filed an immediate appeal, which was granted by the Supreme Court
Chamber on 13 December 2011. The Supreme Court ordered Ieng Thirith held, treated
for her medical issues, and reassessed in six months to see if she is fit to stand trial.
This reassessment and the related hearings occurred between 27-31 August 2012, with
a final Decision from the Court in favor of indefinite stay of proceedings and provisional
release issued on 13 September. The Prosecutors immediately appealed this decision
on 14 September 2012, on the basis that they believed the Court should retain more
supervision of the indicted person. The Supreme Court Chamber will hear arguments
regarding this appeal on 13 November 2012.
With Ieng Thirith’s case once again coming to the fore of proceedings this month at the
ECCC, AIJI is publishing this Special Report to provide a concise review of the pertinent
legal and procedural issues confronted by the Court thus far in its handling of this
Read the report here:
Summary of KRT Trial Monitor Issue No. 39 – Hearing on Evidence Week 34 (8-10
In honor of the Pchum Ben festival, the Chamber held sessions on only three days this
week. Monday and Tuesday were devoted to continued questioning of the Witness,
Meas Voeun, a soldier and later Deputy Division Commander during the Democratic
Kampuchea. In addition to the sections of the Closing Order relevant to Segment
Three of Case 002/1 that were read out the previous week, on Tuesday afternoon,
the Chamber instructed the Greffier to read out paragraphs pertaining to the Toul Po
Chrey Execution Center. At the end of the week, the Prosecution began to introduce
documents relating to Segment Three.
Throughout the three days of proceedings this week, the Chamber also took time to
address a number of legal and procedural issues that arose, including: (a) the use of
documents obtained by torture, (b) the procedure on the “removal” of statements from
the OCIJ’s written record, (c) questioning without referring to documents or previous
statements, (d) the reliability of written records of OCIJ Interviews, and (e) questions that
tend to lead the Witness. Additionally, Nuon Chea was given the opportunity to speak in
court, in order to address portions of the Closing Order that have been read out by the
Read full report here:
Summary of KRT Trial Monitor Issue No. 38 – Hearing on Evidence Week 33 (1-4 October 2012)
This week, the Chamber began by hearing the testimony of Khiev En, who was attached to the Ministry of Propaganda and Education. A transition was then made to Segment Three of Case 002/1, with the Chamber devoting time to read out excerpts from the Closing Order relating to military structure and population movement. The Chamber then called former military officer, Meas Voeun, to the stand.
Accused Ieng Sary, having waived his right to be present during the hearing of the testimonies of Khiev En and Meas Voeun, continued to be absent from proceedings throughout week. In light of the health condition of Ieng Sary, on Tuesday afternoon, the Chamber invited oral submissions from Parties on how trial is to proceed at the ECCC. Other issues on trial management arose, with the Chamber exerting considerable effort to ensure that the proceedings were expeditious and smooth, while the Nuon Chea Defense sought to protect the rights of their client with equal dedication.
This issue of KRT TRIAL MONITOR was authored by Faith Suzzette Delos Reyes, Daniel Mattes, Hava Mirell, Noyel Ry, and Penelope Van Tuyl, as part of AIJI’s KRT Trial Monitoring and Community Outreach Program.
ANNOUNCING SEMINAR: The Self-Interest of Armed Forces in Accountability for their Members for Core International Crimes
This international expert seminar is organized by the Forum for International Criminal and Humanitarian Law (FICHL), the War Crimes Studies Center (WCSC), and Stanford University
27 November 2012, at Stauffer Auditorium, Herbert Hoover Memorial Building, Stanford University.
Seminar participation is free, but this event is open to registered participants ONLY, as seating is limited. To register, please send an e-mail message to firstname.lastname@example.org, indicating your wish to register as a seminar participant, your name, e-mail address and telephone number. Confirmation e-mail responses will be sent. Non-speakers arrange their own travel and accommodation. Seminar papers to be published by Torkel Opsahl Academic EPublisher (TOAEP).
Accountability for war crimes, crimes against humanity and genocide has received increasing international attention since the establishment of the International Criminal Tribunal for the Former Yugoslavia in 1993. Internationalized criminal tribunals have subsequently been established for Rwanda, Sierra Leone, Cambodia, Iraq and Lebanon, and we have seen high profile war crimes cases against Slobodan Milošević, Saddam Hussein and Charles Taylor. At the same time, a number of states have prosecuted their own citizens or refugees from war-affected countries before national military or civilian courts. Although there have been some controversies, the overall trend since the mid-1990s has been one of increased support for accountability for flagrant violations of international criminal law.
The political and diplomatic rhetoric put forward in favour of criminal justice for atrocities frequently refers to the struggle against impunity and that there can be no last-ing peace without justice. A common theme is the obligation to investigate and prosecute core international crimes under international law. Sometimes a government may also pursue national prosecutions in response to purely political interests or expectations. Both the language of international legal obligation and that of politics can act on military or civilian decisions to investigate or prosecute, as a raised stick. This seminar is not concerned with the stick, but the carrot.
Most often, such accountability tends to be rationalized and imposed as a ‘stick’, even when undertaken by the military. However, one should also look at accountability from a ‘carrot’ perspective, namely, whether such accountability is in the self-interest of the armed forces. Why do soldiers, officers and military leaders themselves often prefer such accountability? Is it because accountability mechanisms distinguish them as military professionals who are uncompromised by such crimes? Or is it because of the way individual incentive structures, such as promotion, function? Are they concerned that the commission of war crimes may undermine the public’s trust in the military, increasing the security risks faced and the size and cost of deployment in the area concerned? Or are they motivated by moral, ethical or religious reasons? Does accountability ensure higher discipline and morale and therefore secure more effective chains of command? Or is it because accountability gives them a political advantage vis-à-vis potential opponents? Or does it promote a better public image? Could such accountability be particularly crucial when the armed forces are involved in efforts to establish a new regime in a post-conflict situation or a process of democratization?
This seminar seeks to create a better understanding of the self-interested reasons that armed forces may have in ensuring accountability for core international crimes by clearly mapping and articulating the above issues and others. It aims to provide military lawyers and military professionals around the world with a more comprehensive statement of these reasons. The needs of institutional military training mechanisms are also relevant. To these ends, the papers presented at the seminar will be published in an anthology to be publish by the Torkel Opsahl Academic Epublisher by 1 July 2013. Additionally, a concise policy brief summarizing the outcome of the seminar will be published online and in print in English, French, Spanish and Portuguese shortly after the seminar. It will list and describe each self-interest of armed forces in ensuring accountability, as identified during the seminar. The programme of the seminar seeks to establish common ground between accountability traditions.
Summary of KRT Trial Monitor Issue No. 37 – Hearing on Evidence Week 32 (25 September 2012)
The Trial Chamber continued to grapple with adjustments to the schedule due to Ieng Sary’s continued ill health and his limited waiver. As a result, only one witness, Ms. Noem Sem (TCW-475), was available to testify this week. A singer and news reader for the Ministry of Information and Propaganda, Noem Sem testified on her role in the party, the administrative structure of her Ministry, Office 870, and the different K offices during Democratic Kampuchea. She concluded her testimony in one day and the Trial Chamber declared a recess for the week. Trial is set to resume on Monday, 1 October 2012.
Hearing on Evidence Week 31
Week Ending 20-21 September 2012
Since Accused, Ieng Sary, remained confined in the Khmer-Soviet Friendship Hospital, the Court held sessions on only two days this week. Chea Say (TCW-91), an automotive repair mechanic during the Democratic Kampuchea, testified before the Chamber on Thursday, upon waiver by Ieng Sary of his right to be present at the hearing.1
On Friday morning, Dr. Lim Sivutha and Professor Ky Bousour, Ieng Sary’s physicians, testified about the state of health of the Accused. In light of Ieng Sary’s current health condition and its effect on his right as an accused to be present during trial, the Chamber dedicated Friday afternoon to hearing the positions of Parties in regards to the scheduled hearing of Expert Witness Philip Short.
Hearing on Evidence Week 35
Week Ending 3-6 September 2012
This week’s proceedings focused on the testimony of Mr. Norng Sophang, the head of a telegram unit, who taught encryption techniques under the CPK. His testimony provided insight into the complex communication system in Democratic Kampuchea and shed light on the roles of the Accused.
Legal and procedural issues also figured prominently, as the Defense Teams challenged the manner by which the OCIJ conducted investigations.
Hearing on Evidence Week 29
Week Ending 27-29 August 2012
Mr. Em Oeun, the third Civil Party to testify in this case, continued his testimony this week. The Defense Teams probed seeming inconsistencies in his testimony, such as the dates and chronology of events he recounted. They also asked about aspects of his medical training background, in light of testimony that was apparently inconsistent with information he had provided on his Victim Information Form. At the end of his testimony, he reasserted the truth of his statements, and pleaded for understanding for his confusion. The Trial Chamber then called in a new witness, Mr. Norng Sophang, the head of a telegram translation unit in Phnom Penh during DK. He provided an interesting account of the highly-secretive communications process between lower levels and the KR leaders, as well as the administrative structure of the telecommunications sector at that time.
The hearing on evidence for Case 002/01 adjourned on Wednesday to give way to the fitness to stand trial hearing of Ieng Thirith on 30 and 31 August 2012.