restricted access Chapter 5. Case 002—The Centerpiece Case against Senior Leaders: “Cutting the Head to Fit the Hat”
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134 Chapter 5 Case 002—­The Centerpiece Case against Senior Leaders “Cutting the Head to Fit the Hat” Case 002 is likely to feature the Court’s last trial and is viewed by many as its centerpiece. It is considered the most important Khmer Rouge case because it involves the four most senior leaders who were alive when the Court was created : Nuon Chea, Ieng Sary (now deceased), Khieu Samphan, and Ieng Thirith. Many questions about Democratic Kampuchea’s (DK) three-­year,eight-­month, and twenty-­ day rule have not been answered. Unlike Duch, the defendant in the Court’s first case, these leaders have never admitted any responsibility for the crimes of that period but instead have blamed the lower cadre and rogue elements .Their trial offered the first and likely only opportunity to show how decisions made by those at the center of power during the DK caused the deaths of an estimated two million Cambodians. With four accused and thousands of documents in the case file, the proceedings were often called the most complex since Nuremberg.1 The evidence connecting individual defendants to atrocities is less overwhelming than in Case 001, and while Duch essentially pled guilty, in Case 002 the defense teams mounted vigorous defenses. The case is also more politically sensitive than Case 001, because unlike Duch, the Case 002 defendants had extensive dealings with foreign powers and with the Cambodian Government after the fall of the DK regime. All of these factors made Case 002 a much tougher functional test for the ECCC judges and prosecutors, who are charged with delivering a fair trial and credible justice expeditiously and at an acceptable cost. Case 002—The Centerpiece Case against Senior Leaders / 135 One of the Court’s first hurdles was determining if it had the power to try Ieng Sary, who was convicted in absentia in 1979 and granted amnesty and pardon in 1996. His challenges to the Court’s jurisdiction tested the hybrid Court’s ability to navigate tensions between international accountability norms and Cambodian law. All judicial chambers addressed the issue at least once, but without final resolution due to the ECCC’s convoluted structure and extraordinarily narrow provision for immediate appeal. The Court’s unique civil law approach to investigations has contributed to other problems, leading to legitimate defense concerns. In particular, the Court’s heavy reliance on Co-­ Investigating Judges (CIJs), who are endowed with immense responsibility and discretion, rendered that office—­ and the entire investigation—­ vulnerable to charges of incompetence and bias. Decisions by national judges that suggest a lack of independence from the Cambodian Government prompted accusations of political interference, particularly in connection with the Court’s efforts to summon government witnesses. The ECCC’s inefficiency in getting the case to trial also generated problems . It resulted in the suspects’lengthy preindictment detention and prompted the Trial Chamber to seek to expedite judgment by severing the indictment into a series of “mini trials.” Although “Case 002/01” involved senior leaders at the pinnacle of the Democratic Kampuchea hierarchy, the crimes it addressed are not representative of the harms suffered by most victims during the Pol Pot era. Further challenges arose as trial judges who lack experience managing mass crimes trials inconsistently developed and applied hybrid rules, leading to procedural confusion and delay. One of the octogenarian accused was severed from the case before trial hearings began due to dementia, and another died a few months before the end of trial. With additional Case 002 trials unlikely due to the advanced age of the two remaining accused and donors’ eagerness to conclude the tribunal’s work as soon as possible, the ECCC’s centerpiece case is greatly reduced in scope and, regrettably, in its likely significance to many survivors. Background The Co-­ Prosecutors elected to try the four surviving senior leaders together, both in the hopes of increasing efficiency and to facilitate trying them under 136 / Hybrid Justice the theory of Joint Criminal Enterprise2 —­ among other modes of liability. The accused were charged with responsibility for genocide, war crimes, and crimes against humanity committed pursuant to a joint criminal plan to implement “rapid socialist revolution in Cambodia through a ‘great leap forward’ and defend the Party against internal and external enemies, by whatever means necessary .”3 The Closing Order found that they did so, inter alia, by forcing population movement; establishing and operating work cooperatives; reeducating “bad elements” and killing “enemies” inside and outside of the party; targeting “specific...