The Supreme Court Chamber (SCC)’s release of A Summary of the Reasons for the Decision on Immediate Appeal by Noun Chea against the Trial Chamber’s Decision on Fairness of Judicial Investigation (‘Summary of Reasons’) coincided with the Noun Chea defense’s attempt to find a link between a suspect in Case 004 and a witness in Case 002 through which the defense attempted to show that the witness in Case 002 is reluctant to testify about the suspect in Case 004 because the Cambodian government had instructed her to act in this manner by which the Cambodian government interfered with the administration of justice as set out in Rule 35 of the Internal Rules (IRs) of this Court. The bench thwarted this attempt by ruling that the defense’s line of questioning lay outside the scope of Case 002 with which the defense strenuously disagreed. The history of the defense’s crusade has been discussed on this forum over the last 2 years and, essentially, constitutes the defense’s strategy to discredit the Court by demonstrating that fair trials are impossible in the face of a large-scale government interference with the administration of justice at the Court and to conclude that if fair trials are generally unachievable at the ECCC, one is, ipso facto, unachievable for Noun Chea. The NC defense team has spared no effort in this regard and appears to have put many, if not all, of its eggs into the interference basket.
The Trial Chamber (TC) disallowing the NC defense’s line of questioning appears to have acted in a manner very similar to that of the SCC by keeping allegations of interference into Cases 003 and 004 out of Case 002. In the Summary of Reasons, the SCC agreed with the TC that the arguments related to the interference and advanced by the NC defense were “devoid of the tangible impact on the fairness in Case 002”. Through this the SCC, essentially, told the NC defense this: ‘nothing has happened to your client yet which might amount to interference; the TC will deal with it if and when it does happen and upon your motion during the now multiple Case 002 trials’. Is the SCC obfuscating or is the NC defense’s position “devoid of the tangible impact”? To answer this question the motives of the both must be examined.
For the NC defense, it is difficult to see that Noun’s counsel need to try something drastic as any person reasonably familiar with the evidence against NC knows that it is sizable and solid (this is not to say that it is unimpeachable, at least in part). Unlike the other 3 accused in Case 002, Noun is the only person with a clear and unequivocal connection to a criminal institution, S-21 (the TC never explicitly called S-21 “a criminal institution” but this is my reading of the tone of the judgment in Case 001 which is unlikely to change with whatever the SCC might do to it on appeal) and the evidence NC has created against himself by pursuing a short-lived career of a Communist Party of Kampuchea (CPK) historian (of which his lawyers found out in court). The NC defense knows that even if the Ieng Sary defense achieves having the TC declare all DC-Cam documents inadmissible (based on the presently impugned key principles and procedures of information-gathering adopted by DC-Cam and, miore than anything, the inept testimonies of DC-Cam officers in court), the TC is extremely unlikely to throw out the evidence on which it had already pronounced in Case 001 and that evidence alone is likely to be sufficient to convict their client. The NC defense correctly did not place too many bets on their client achieving much through his “I was responsible for education” line of defense and are trying something that might actually work (well, “actually work” is a relative category here but the Court will buy interference before it buys the “I was responsible for education” yarn). For the SCC, the highest chamber of this Court had to respond to something everyone already knows: there has been massive government interference in Cases 003 and 004. But, does the ‘poisonous fruit of a poisonous tree’ apply here the Court is asking itself? It says no. Why? Because no interference has been alleged in Case 002 yet. Maybe the SCC is right and no interference has happened with Case 002. Maybe it is not. But what the SCC is definitely incorrect about is that no interference has been alleged with the defense having submitted and since co-filed specific allegations of such interference. An observer might find these allegations tenuous but s/he would still find them for one simple reason: they are in the defense’s appeal which the defense shared with, perhaps, everyone but those with no command of written English. This brings us right along to the next issue – the NC defense’s defiance of a court order. The NC defense decided that the Court’s classification of documents on the basis of their confidentially did not apply to them and chose to be guided by their own … whim is, perhaps, the word as the defense has no statutory authority to issue its own rules of classification. The defense defiantly announced that they would not be bound by the Court’s classification rules and would choose their own classification status of their filings. Besides being utterly ridiculous, this defiance is a bit more than spunky as it happens to be illegal (ironically, it is illegal under the same rule of the IRs (the legality of the IRs themselves is on the thinnest of ice but that’s a different story) which the defense invoked for their interference argument). The SCC decided not to take any punitive action against the NC team this time and let them slide with a warning. Under normal circumstances this would have been a prudent course of action but this is unlikely to work as a deterrent for the NC defense who chose to break yet another confidentiality rule by bringing up the leaked name of a suspect in Case 004 in court which may have had the effect of being seen as the Court announcing that person as a suspect (most Cambodian viewers are not going to know the difference between one and the other). But this is nonetheless a good start and mazeltov to that. In its quest for comprehensiveness the defense overplayed its hand by filing interference cases with the national courts of Cambodia. How can fighting a war on 2 fronts possibly hurt? I suppose Adolf Hitler would have been a great advisor on this particularly matter but he might have been engaged consulting elsewhere when he was needed here. Under R. 35 the SCC had 3 options open to it: (1) deal with the matter of interference summarily; (2) conduct further investigations to ascertain whether there are sufficient grounds for instigating proceedings; or (3) refer the matter to the appropriate authorities of the Kingdom of Cambodia or the United Nations. Had the matter not been as comprehensively advocated, the defense could have cornered the SCC into choosing one of the 3 (choosing none would not have been an option from the legal standpoint). Instead, the defense had the SCC’s work cut out for it by filing cases with the national courts (which took care of “refer the matter to the appropriate authorities of the Kingdom of Cambodia") and the defense’s advocacy reached the UN HQ and compelled them to engage the Cambodian government on the issue of interference (the UN Counsel's visit to Phnom Penh to the effect was widely covered in the media). Considering that “dealing with the matter summarily” and “conducting investigations” belong in the realm of ‘actions the SCC can take internally’ they logically precede ‘actions which the SCC can take externally’. The defense inadvertently activated the latter which renders the former nugatory. This let the SCC out of the corner and gave it an opportunity to say ‘we would like to help you out but you have engaged everyone we could have engaged outside the Court and there is little else we can statutorily do other than telling the TC to look out for interference in 002’. Ouch. Very, very ouch. Perhaps, had the SCC not been aware of the history of the defense’s crusade, it would have missed the cases filed nationally and either driven itself into a corner or arrived at an unsatisfactory decision. But this did not happen thanks to the Chamber’s acute sense of the history of these proceedings. The defense’s fight while self-serving is nevertheless admirable and those of us intimately familiar with the Cambodian judicial system are with you on this. A better legal analysis and foresight might be a good idea for next time to avoid putting yourself in a position of vulnerability and getting clubbered by a crafty legal argument which is exactly what happened this time (the "we will do what we like as we are the defense" attitude is not helpful either; next time they try Kissinger in D.C. this attitude can be dusted and thrust into action but this is a jurisdiction where counsel ask questions through the bench, so no). No one might be questioning that there have been scores of instances of interference with this Court but as long as the NC defense makes strategic blunders the Chambers will keep beating it on the legal argument which will keep giving the Chambers a legitimate reason not to act on the matter.