A Couple of High Notes Soar Over the Sea of Bile, Venom and Acrimony

The defense was asked to answer 9 questions as the Trial Chamber sought the parties’ input on how to implement the decision of the Supreme Court Chamber that was understood (I find this reading of the decision most curious) as annulling the Trial Chamber’s decision to substantively (referred to in the amicus brief below as ‘horizontal separation’) sever the proceedings in Case 002 and to conduct discrete trials.

The Noun Chea defense delivered a measured presentation hitting a number of the rights notes that should have been hit a long time ago (but I suppose the defense was then still trying out its singing voice and the octave was broad enough to include K-5 and governmental interference in the proceedings). One of these “notes” was the right to presumption of innocence. While it is commendable that the defense finally woke up to this right after a long slumber, the Noun Chea defense offered very little in terms of a meaningful analysis of the manner in which this right was implicated by the order to sever Case 002. Being a constitutional matter, much could have been and should have been said on the subject. Much. In fact the question of the presumption should have been the crux of the issue of severance. But considering the Noun Chea defense had said absolutely nothing on the subject prior to this hearing this is a definite step toward, albeit the Noun Chea defense froze on the stutter step on this.

The Ieng Sary defense delivered a diatribe (which is particularly disappointing considering that it came from its international counsel who is usually on point and who usually does not babble). Much vitriol was delivered by the Ieng Sary defense. The Supreme Court’s decision in question was referred to as “schizophrenic” (which the international counsel asked to be taken “with all due respect” (how many of us heard Alan Arkin saying “you can take ten thousand dollars for your toilet paper script or you can go f … yourself; with all due respect”)). A good way to refer to much of the Ieng Sary defense’s presentation would be as ‘metaphorized gargle’ (I have no idea how the translators to either language were able to convey Karnavas’ presentation so lavishly laced with metaphors; they probably couldn’t which made the gargle we heard in English even thicker in Khmer and French). However, the Ieng Sary defense hit some of the right notes in the middle of the cacophony which was the metaphorized gargle. One of the most surprising of these “notes” was Karnavas’ recognition that the Supreme Court’s tacit endorsement of the prosecution’s heavy reliance on the ICTY law as governing law was unlawful. It is surprising because not only does Karnavas come from the common law system which served as much of the basis of the ICTY case law but he has been practicing before the ICTY for a number of years. It therefore would have been much easier for him to go with the known, particularly considering that even the Supreme Court has done a piss-poor job setting the lower courts straight on what is the applicable law in these proceedings (which is the Cambodian law with occasional forays into international law). The unlawfulness of the prosecution’s reliance on the ICTY law is, however, not a matter of opinion but a matter of fact and Karnavas’ recognition of this fact – no matter how inconvenient – is commendable. No lawyer worth his or her salt can argue in good faith that the prosecution’s reliance on the ICTY law as governing law was lawful. The Supreme Court should have set the prosecution straight on the matter. They dropped the ball.

It is noteworthy that the Ieng Sary defense’ dissatisfaction was not as much with the severance as it was with the Supreme Court’s decision to invalidate it. The Ieng Sary defense did not miss a single chance to excoriate that decision. Nor did it miss to visit most of the blame for the present situation on the prosecution who they argued was solely responsible for producing an unmanageable indictment (which, of course, is only in part correct as the prosecution did not produce the Closing Order but merely put the Co-Investigating Judges in a situation of a lengthy closing order; the Co-Investigating Judges, however, did not have to go by the prosecution and could have drawn up their own script distinct from that of the prosecution, had they wished to do so). 

The Khieu Samphan defense’s views differed dramatically from those of the other two defense teams. Unlike the other two it directed its vitriol against the Trial Chamber whom it accused of an unwise decision to sever (the decision was undoubtedly shortsighted (if not to say dumb) and I commented on it on a number of venues a year and a half ago when it came out but where was the Khieu Samphan defense then? Why now? The cataracts have been removed or the Court’s translating service finally managed to translate the severance order into French?). The level of bile against the Trial Chamber reached a point at which the international counsel of the Khieu Samphan’s defense declared that there was nothing that the Trial Chamber could do to remedy out the position his client was put into by the severance order (essentially saying that it was so prejudicial that no remedy would suffice to overcome the prejudice occasioned). This statement is without a doubt peevish and ridiculous and sounds like a child’s response to an adult’s fairly minor but nonetheless wrongful act. Every violation of rights has a remedy. The bigger the violation, the bigger the remedy. It is that simple. There is no such thing as a violation that is gross that there is no remedy for it (there is always termination of the proceedings, if all else fails). The Khieu Samphan defense could have used this opportunity productively and tried to twist the now contrite and humbled Trial Chamber’s arm into a promise of a nice and juicy remedy to overcome the violation of the rights allegedly visited upon by the severance of the proceedings in Case 002. This would have required a nuanced legal analysis, not a venomous missive. The now contrite Trial Chamber took being a punching bag in stride but soon enough that newfound contriteness wore out and the Khieu Samphan defense’s vitriol got cut off. And amen to that.   

As such, the defense teams did not come out as a united front on this, even if they agreed on some of the issues.