The Trial Chamber Breaks Up Case 002

The Trial Chamber (TC) has recently made a decision to break up the trial phase of Case 002 into a number of substantive parts. The TC found a legal basis for doing this in its interpretation of the newly minted Rule 89ter of the Internal Rules (IRs). It might not be unreasonable to argue that the court adopted this rule with a particular purpose in mind and at a very advanced stage of its tenure which may or may not raise an assortment of issues normally associated with the principle of legal certainty as justification for this rule is nowhere to be found in the Cambodian criminal procedure.

Perhaps, the most curious element of this decision is that it does not stop at merely breaking up the trial into separate thematic hearings but goes as far as to break up the trial phase of Case 002 into separate trials. This, among many other things, means that there will be separate verdicts at the end of each trial. This, in turn, means that the accused may or may not go to the next trial as convicted felons (a verdict is only a verdict if it contains a determination of guilt) with all the implications which this carries. This would be all fun and games and would not go far beyond the “huh, interesting”, were it not for the presumption of innocence which kind of cramps the TC’s style in this case (and was articulated as a principle of international and national law to do just that). Besides, this will prevent the TC from giving weight to the totality of exculpatory and inculpatory evidence when deliberating the question of guilt of these accused with numerous implications which can be fairly easily derived from this in advance of the trial.

Perhaps, the posited justification of “safeguarding the fundamental interest of victims in achieving meaningful and timely justice” for all this inconvenience is not as strong an argument as the Chamber might believe it to be with this court having spent a year to create its internal rules which (there goes "timely"), among other deviations from the Cambodian procedure, foreclosed the opportunity to claim personal financial reparations (there goes "meaningful") otherwise open to victims in the Cambodian criminal process, as well as, of course, the passage of a period of 30 years which dwarfs any additional time which can be taken up by this court (and there goes "timely" again).

Were the above not of concern, this would be an interesting and somewhat novel way to proceed. But, as it is often the case, the fair trial principles might get in the way of judicial experimentation.