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Managing Enormous Mass Crimes Indictments: The ECCC Severance Experiment

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The Extraordinary Chambers in the Courts of Cambodia

Part of the book series: International Criminal Justice Series ((ICJS,volume 6))

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Abstract

All international criminal courts struggle to balance their obligation to hold expeditious trials with victims’ expectation that accused will be charged comprehensively. Some courts have held prodigious trials lasting up to a decade, while others have sought to accelerate verdicts by dropping charges or adjudicating only one type of crime. Faced with an enormous closing order indicting elderly accused, the ECCC Trial Chamber tried a novel approach: It severed a small number of charges to be the first topic in a series of trials based on the full indictment. The procedure was intended to increase the likelihood that the court would issue at least one judgment, which then would be used as a ‘foundation’ for subsequent case proceedings. However, the Trial Chamber’s failure to acknowledge and address consequent legal ambiguities raised fair trial concerns and likely squandered potential time savings. The problem-laden ECCC experience suggests that other courts should not adopt this severance practice.

The author is a Legal Advisor to the Documentation Center of Cambodia (DC-Cam).

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Notes

  1. 1.

    See Closing Order, Nuon Chea and others (002-09-2007/ECCC-D427), Co-Investigating Judges, 15 September 2010, §§ 156–58.

  2. 2.

    Of the four Case 002 accused, one was removed from the case before the start of trial due to severe dementia, and a second died in March 2013, shortly before the close of evidentiary hearings in the first ‘mini-trial.’

  3. 3.

    See Decision on Additional Severance of Case 002 and Scope of Case 002/02, Nuon Chea and others (002/19-09-2007/ECCC-E301/9/1), Trial Chamber, 4 April 2014, § 28, discussing the possible burden of testifying on witnesses in trials after the completion of 002/02. Evidentiary hearings were originally scheduled to begin in October 2014, but were postponed due to a boycott of proceedings by the Khieu Samphan team, who argued that they needed time to prepare their Case 002/01 appeal. See e.g., Holly Robertson, ‘Samphan’s Boycott Forces Tribunal’s Adjournment,’ Cambodia Daily, 25 November 2014.

  4. 4.

    See e.g. Co-Prosecutors’ Response to Khieu Samphan’s Request for Stay of Proceedings or Disqualification of Judges, Nuon Chea and others (002/19-09-2007/ECCC-E314/3), Trial Chamber, 4 September 2014, § 17, stating: ‘Never before have accused persons at an international or internationalized tribunal been subject to a second trial based on separate factual allegations that are part of the same charging document.’

  5. 5.

    ECCC Press Release, ‘Severance of Proceedings Ordered in Case 002,’ 22 September 2011, available at http://www.eccc.gov.kh/en/articles/severance-proceedings-ordered-case-002 (visited 15 June 2015).

  6. 6.

    Severance Order Pursuant to Internal Rule 89ter, Nuon Chea and others (002/19-09-2007/ECCC-E124), Trial Chamber, 22 September 2011, § 8.

  7. 7.

    See generally Memorandum from Trial Chamber President Nil Nonn, Notification of Decision on Co-Prosecutors’ Request to include Additional Crime Sites within the Scope of Trial in Case 002/01 and Deadline for Submission of Applicable Law Portion of Closing Briefs, Nuon Chea and others (002/19-09-2007/ECCC-E163/5), Trial Chamber President, 8 October 2012. See also Decision on the Co-Prosecutors’ Immediate Appeal of the Trial Chamber’s Decision Concerning the Scope of Case 002/01, Nuon Chea and others (002/19-09-2007/ECCC-E163/5/1/13), Supreme Court Chamber, 8 February 2013 (hereafter SCC First Severance Decision), § 17, calling the Trial Chamber’s series of scope decisions ‘a year-long decision-making process’ during which ‘the Trial Chamber consistently kept the limits of the scope of Case 002/01 uncertain and open to change, without defining any criteria that could influence a change.’

  8. 8.

    See e.g. SCC First Severance Decision, supra note 7, § 47, saying that ‘the Trial Chamber’s continued failure to create a tangible plan for the future of remaining trials in Case 002 has resulted in confusion for the parties and has effectively ‘buried’ the remaining charges in the Indictment.’

  9. 9.

    Ibid. § 33.

  10. 10.

    Ibid. § 35.

  11. 11.

    Ibid. §§ 35, 50 (emphasis in original).

  12. 12.

    Decision on Immediate Appeals Against Trial Chamber’s Second Decision on Severance, Nuon Chea and others (002/19-09-2007-ECCC-E284/4/8), Supreme Court Chamber, 25 November 2013 (hereafter SCC Second Severance Decision), § 38, examining jurisprudence of the International Criminal Tribunals of Rwanda and the former Yugoslavia.

  13. 13.

    Ibid., citing Decision on Consolidated Prosecution Motion to Sever the Indictment, to Conduct Separate Trials and to Amend the Indictment, Mladić (IT-09-92-PT), Trial Chamber, 13 October 2011, § 31.

  14. 14.

    Mladić decision, supra note 13, § 31. The ECCC Trial Chamber dismissed this concern, noting that the Mladić trial chamber also expressed concern that the accused would need to coordinate between two different defense teams, whereas at the ECCC the accused are represented by the same lawyers in both cases. See Decision on Additional Severance of Case 002, supra note 3, § 21. However, this was just one factor in the Mladić chamber’s reasoning; moreover, it is arguable that an accused’s ability to defend himself is burdened to a greater extent when his legal team is required to split its time between two trial proceedings. See Decision on Khieu Samphan’s Immediate Appeal Against the Trial Chamber’s Decision on Additional Severance of Case 002 and Scope of Case 002/02, Nuon Chea and others (002/19-09-2007-ECCC-E301/9/1/1/3), Supreme Court Chamber, 29 July 2014 (hereafter SCC Third Severance Decision), § 50 n.106, noting that the ‘concerns pinpointed by the Trial Chamber were not focal points in [the ICTY’s] overall consideration that severed trials would be less expeditious than a single trial.’ Because the Khieu Samphan team boycotted Case 002/02 hearings until it filed its Case 002/01 appellate brief, the Trial Chamber was eventually forced to postpone the start of Case 002/02 evidentiary hearings. See ECCC Press Release, ‘Hearings in Case 002/02 Adjourned Until January 2015,’ 24 November 2014, available at http://www.eccc.gov.kh/sites/default/files/media/ECCC%20PR%2024%20Nov%202014%20Eng.pdf (visited 15 June 2015).

  15. 15.

    SCC Second Severance Decision, supra note 12, § 39.

  16. 16.

    Rule 73bis(D) ICTY RPE provides in part: ‘After having heard the Prosecutor, the Trial Chamber, in the interest of a fair and expeditious trial, may invite the Prosecutor to reduce the number of counts charged in the indictment […].’

  17. 17.

    See Decision on Immediate Appeal Against the Trial Chamber’s Order to Unconditionally Release the Accused Ieng Thirith, Nuon Chea and others (002/19/09-2007/ECCC-E138/1/10/1/5/7), Supreme Court Chamber, 14 December 2012, § 37, stating: ‘Traditionally, most civil law jurisdictions have adopted the principle of legalism (or, otherwise, mandatory prosecution), pursuant to which the prosecution has no discretion to discontinue or ask for the discontinuation of a criminal action once it has been initiated and the court, which has sole authority to terminate proceedings, can only do it for a reason specifically expressed in the law.’ (citations omitted).

  18. 18.

    Decision on Severance of Case 002 Following Supreme Court Chamber Decision of 8 February 2013, Nuon Chea and others (002/19-09-2007/ECCC-E284), Trial Chamber, 26 April 2013 (hereafter TC Second Severance Decision), § 98.

  19. 19.

    SCC Second Severance Decision, supra note 12, § 26.

  20. 20.

    Decision on Additional Severance of Case 002, supra note 3, § 45. Due to the 2015 rule change discussed infra note 27, it seems likely that the remaining charges will be dropped.

  21. 21.

    Cambodian procedures include no mechanisms for reducing confirmed charges or severing an indictment.

  22. 22.

    Agreement between the United Nations and the Royal Government of Cambodia Concerning the Prosecution under Cambodian Law of Crimes Committed During the Period of Democratic Kampuchea (June 6, 2003), Article 12(1), providing in part: ‘The procedure shall be in accordance with Cambodian law.’

  23. 23.

    Ibid., providing in part: ‘Where Cambodian law does not deal with a particular matter, or where there is uncertainty regarding the interpretation or application of a relevant rule of Cambodian law, or where there is a question regarding the consistency of such a rule with international standards, guidance may also be sought in procedural rules established at the international level.’

  24. 24.

    SCC Second Severance Decision, supra note 12, §§ 63–64.

  25. 25.

    Ibid. §§ 61–62.

  26. 26.

    See e.g. SCC First Severance Decision, supra note 7, § 50, stating: ‘It is necessary that the Trial Chamber determine […] whether the gist of such severance is in judicial manageability, in which case there is necessity for a tangible plan for the adjudication of the entirety of the charges in the Indictment, and not merely a portion thereof’ or else state ‘clearly’ that due to the declining health of the accused ‘justice is better served by concluding with a judgment’ on a smaller number of charges; SCC Second Severance Decision, supra note 12, § 62, stating: ‘In any event, it is the duty of the Trial Chamber to dispose of matters pending before it so that the proceedings into a criminal charge are decided on the merits or dismissed’; SCC Third Severance Decision, supra note 14, §§ 88, 89, finding a continuing lack of legal certainty regarding the status of the remaining charges due to the Trial Chamber’s ‘repeated indecision’ and reiterating that ‘no part of the proceedings may be left ‘in limbo.’

  27. 27.

    See Decision on Additional Severance of Case 002, supra note 3, § 45, finding that ‘as the Trial Chamber has not been seised of a request by the Co-Prosecutors to withdraw charges from the Closing Order, the Trial Chamber need not address this issue at the current stage of proceedings.’ (citation omitted). In January 2015, the Internal Rules were amended to allow the Trial Chamber ‘to reduce the scope of the trial by excluding certain facts set out in the indictment, as long as the remaining facts subject to trial are representative of the scope of an indictment.’ ECCC Press Release, ‘11th Plenary Session Concludes,’ 16 January 2015, available at http://www.eccc.gov.kh/sites/default/files/media/ECCC%20PR%2016%20Jan%202015%20Eng.pdf (visited 15 June 2015). The Co-Investigating judges were provided equivalent authority to reduce the scope of their investigation.

  28. 28.

    Co-Prosecutors’ Request for Reconsideration of ‘Severance Order Pursuant to Internal Rule 89ter,’ Nuon Chea and others (002/19-09-2007/ECCC-E124/2), Trial Chamber, 3 October 2011, § 2. See also ibid. § 15, expanding on this argument.

  29. 29.

    Ibid. § 14.

  30. 30.

    Decision on Co-Prosecutors’ Request for Reconsideration of the Terms of the Trial Chamber’s Severance Order (E124/2) and Related Motions and Annexes, Nuon Chea and others (002/19-09-2007/ECCC-E124/7), 18 October 2011, § 4.

  31. 31.

    See Urgent Request on the Scope of Trial One and the Need for a Reasoned Decision Following the Civil Parties Request for Reconsideration of the Severance Order, Nuon Chea and others (002/19-09-2007/ECCC-E124/10), Trial Chamber, 17 November 2011, §§ 4–5.

  32. 32.

    Memorandum from Trial Chamber President Nil Nonn, Notice of Trial Chamber’s Disposition of Remaining Pre-Trial Motions (E20, E132, E134, E135, E124/8, E124/9, E124/10, E136 and E139) and Further Guidance to the Civil Party Lead Co-Lawyers, Nuon Chea and others (002-02/19-09-2007/ECCC-E145), Trial Chamber President, 29 November 2011, at 1.

  33. 33.

    SCC First Severance Decision, supra note 7, § 42 (footnote omitted).

  34. 34.

    Ibid. § 40.

  35. 35.

    Ibid.

  36. 36.

    The prosecutors sought to add the S-21 security center, which had been the sole subject of Case 001, and all defense teams opposed re-severance. Among its arguments, the Nuon Chea team said that as a judicially confirmed document, ‘[A]ny part of the Closing Order which is not heard at trial will survive as the final adjudication of Nuon Chea’s criminal responsibility for the events during Democratic Kampuchea. This trial is Nuon Chea’s only opportunity to present his defence to the allegations in the Closing Order[.]’ Transcript of Trial Proceedings (Public), Nuon Chea and others (002/19-09-2007/ECCC-E1/172.1), Trial Chamber, 20 February 2013, at 3–4.

  37. 37.

    See TC Second Severance Decision, supra note 18, § 4.

  38. 38.

    Severance Order, supra note 6, §§ 1, 5, 7, addressing the forced transfer of the population of Phnom Penh beginning on April 17, 1975, and the subsequent forced transfer of hundreds of thousands of Cambodians to the north of the country between late 1975 and 1977.

  39. 39.

    See Notification of Decision on Co-Prosecutors’ Request to include Additional Crime Sites, supra note 7, § 3.

  40. 40.

    Co-Prosecutors’ Request for Reconsideration, supra note 28, § 3.

  41. 41.

    Ibid. § 19.

  42. 42.

    Ibid. § 36.

  43. 43.

    Decision on Co-Prosecutors’ Request for Reconsideration, supra note 30, § 9.

  44. 44.

    Severance Order, supra note 6, §§ 2, 12.

  45. 45.

    Co-Prosecutors’ Request to Include Additional Crime Sites within the Scope of Trial in Case 002/1, Nuon Chea and others (002/19-09-2007/ECCC-E163.1), Trial Chamber, 27 January 2012, § 4.

  46. 46.

    Co-Prosecutors’ Immediate Appeal of Decision Concerning the Scope of Trial in Case 002/01 with Annex I and Confidential Annex II, Nuon Chea and others (002/19-09-2007/ECCC-E163/5/1/1), Supreme Court Chamber, 7 November 2012, § 2.

  47. 47.

    SCC First Severance Decision, supra note 7, § 43.

  48. 48.

    Ibid. (emphasis in original).

  49. 49.

    SCC Second Severance Decision, supra note 12, § 64 (citations omitted).

  50. 50.

    Ibid. § 70. See also ibid. § 68, calling the Trial Chamber ‘rigid’ in its disinclination to modify the scope of trial, indicating its lack of preparedness to adjudicate any additional charges.

  51. 51.

    See generally Decision on Additional Severance of Case 002, supra note 3.

  52. 52.

    The Supreme Court Chamber has indicated that ‘meaningful justice’ requires a verdict ‘on at least those remaining charges which will render the combination of Cases 002/01 and 002/02 reasonably representative of the Indictment.’ SCC Third Severance Decision, supra note 14, § 55. Notably, shortly after the start of the second trial Case 002/02 hearings were already delayed two weeks due to the hospitalization of Khieu Samphan for breathing difficulties. See e.g. George Wright, ‘Khmer Rouge Tribunal Hearings Postponed Again,’ Cambodia Daily, 14 January 2015.

  53. 53.

    ECCC Severance Press Release, supra note 5.

  54. 54.

    Seventeen months into proceedings, the Trial Chamber estimated that over the course of the Case 002/01 trial it had heard testimony ‘on an approximate average of 7.3 courtroom days per month.’ TC Second Severance Decision, supra note 18, § 140, attributing the slow pace to ‘the health of the Accused, witness availability, and the appeal process.’

  55. 55.

    The Trial Chamber emphasized that it and its staff needed to focus exclusively on delivering a judgment expeditiously, and therefore would begin hearing Case 002/02 after issuing the judgment. See Memorandum from Trial Chamber President Nil Nonn, Scheduling of and Agenda for Trial Management Meeting in Case 002/02 (11–13 December 2013), Nuon Chea and others (002-02/19-09-2007/ECCC-E301/3), Trial Chamber President, 5 December 2013, at 3; Memorandum from Trial Chamber President Nil Nonn, President’s Memorandum on the Proposal to Appoint a Second Panel of the Trial Chamber to Try the Remaining Charges in Case 002, Nuon Chea and others (002-02/19-09-2007/ECCC-E301/4), Trial Chamber President, 20 December 2013, § 9. Cf. Mladić decision, supra note 13, § 35, stating: ‘if the writing of the judgment in the first case were taking place during the pre-trial period or start of the second case, this could negatively affect the pace of the second case.’ The SCC, noting ICTY appeals chamber concerns about potential delay due to the intervening time required to write a judgment, has said that the fact that ‘a series of severed trials would take longer to adjudicate than a single joint trial’ is not only supported by international jurisprudence but is ‘common sense.’ SCC Third Severance Decision, supra note 14, § 51. As discussed supra note 14, the Trial Chamber only agreed to postpone evidentiary hearings until after appeal briefs were filed because the Khieu Samphan team boycotted proceedings, saying it likewise needed to devote its efforts exclusively to that task.

  56. 56.

    Additional reasons included frequent breaks and a lack of trial management. For example, near the end of trial, the prosecutors said that ‘the most significant impediment [to expeditious proceedings] had been the four-day trial schedule […] and the frequent judicial recesses scheduled by the Trial Chamber.’ Co-Prosecutors’ Immediate Appeal of Second Decision on Severance of Case 002, Nuon Chea et al. (002/19-09-2007/ECCC-E284/2/1), Supreme Court Chamber, 10 May 2013, § 70. They further complained about continuing uncertainty due to the ‘Trial Chamber […] managing and planning the trial on a week-to-week basis’:

    [I]t is now three months after this Chamber’s [final] severance decision and the parties still have not received any schedule or plan informing them of when the Trial Chamber plans to complete witness testimony, the identity of the remaining witnesses who will testify, and when closing arguments will be scheduled and final written submissions due.

    See ibid. § 75.

  57. 57.

    See e.g., SCC Third Severance Decision, supra note 14, § 52, noting ‘the real delays’ resulting from ‘procedural battles’ over the innovations Trial Chamber said would reduce delay, including having evidence in Case 002/01 serve as a ‘foundation’ for subsequent trials.

  58. 58.

    Notice of Trial Chamber’s Disposition of Remaining Pre-Trial Motions, supra note 32 at 2.

  59. 59.

    Decision on Assignment of Experts, Nuon Chea and others (002/19-09-2007/ECCC-E215), Trial Chamber, 5 July 2012, § 4, recalling its prior ruling that experts ‘may be questioned on all matters within their knowledge or expertise relevant to the entirety of the Closing Order in Case 002’; Memorandum from Trial Chamber President Nil Nonn, Order of Witnesses for Current Segment of Case 002/01, Nuon Chea and others (002-02/19-09-2007/ECCC-E194), Trial Chamber President, 11 May 2012, agreeing to a prosecution request to hear elderly witnesses on the full scope of Case 002. See also Memorandum from Trial Chamber President Nil Nonn, Advance Notice of Assignment of Four Witnesses During First Trial Segment (5–16 December 2011).

  60. 60.

    Lead Co-Lawyers and Civil Party Lawyers Request for Reconsideration of the Terms of the Severance Order E124, Nuon Chea and others (002/19-09-2007/ECCC-E124/8), Trial Chamber, 18 October 2011, §§ 12–13.

  61. 61.

    Mladić decision, supra note 13, § 34.

  62. 62.

    Decision on Co-Prosecutors’ Request for Reconsideration, supra note 30, § 11 (emphasis added); Co-Prosecutors’ Request for Clarification of the Scope of the First Trial, Nuon Chea and others (002/19-09-2007/ECCC-E124/9), Trial Chamber, 4 November 2011, § 4.

  63. 63.

    Co-Prosecutors’ Request for Clarification, supra note 62, § 9.

  64. 64.

    Memorandum from Susan Lamb, Trial Chamber Senior Legal Officer to All Parties Case 002, Response to Issues Raised by Parties in Advance of Trial and Scheduling of Informal Meeting with Senior Legal Officer on 18 November 2011, Nuon Chea and others (002-02/19-09-2007/ECCC-E141), 17 November 2011, at 2.

  65. 65.

    See e.g. Transcript of Trial Proceedings (Public), Nuon Chea and others (002/19-09-2007/ECCC-E1/211.1), Trial Chamber, 24 June 2013, at 91, quoting Judge Cartwright: ‘The Chamber has always indicated that the—that evidence could be led as to the existence of all five policies, but that any evidence relating to the implementation of those would be limited only to the policy, the alleged policy of forced evacuation’; Transcript of Trial Proceedings (Public), Nuon Chea and others (002/19-09-2007/ECCC-E1/212.1), Trial Chamber, 25 June 2013, at 10, quoting Judge Lavergne: ‘It is indeed implementation on the ground—or in the field that should not be part of the presentation of key documents as part of this trial.’

  66. 66.

    See e.g. Transcript of Trial Proceedings (Public), Nuon Chea and others (002/19-09-2007/ECCC-E1/213.1), Trial Chamber, 26 June 2013, at 41–42, quoting the prosecution: ‘There is total interaction between the policy itself and its application. This application helps with the development of the policy’; ibid., at 40, quoting the international lead co-lawyer: ‘It is obvious that the statements of civil parties contain necessarily both matters regarding existence of the policies and implementation.’

  67. 67.

    See e.g. Judgment, Kunarac and others (IT-96-23& IT-96-23/1-A), Appeals Chamber, 12 June 2002, § 98, stating: ‘It may be useful in establishing that the attack was directed against a civilian population and that it was widespread or systematic (especially the latter) to show that there was in fact a policy or plan, but it may be possible to prove these things by reference to other matters.’

  68. 68.

    Transcript of Trial Proceedings 26 June 2013, supra note 66, at 44–46.

  69. 69.

    Ibid. at 50.

  70. 70.

    Addendum to Reply to OCP Response to Nuon Chea’s Immediate Appeal Against Trial Chamber’s Second Decision on Severance, Nuon Chea and others (002/19-09-2007/ECCC-E284/4/5), Supreme Court Chamber, 3 July 2013, § 15.

  71. 71.

    Ibid. §§ 13, 15.

  72. 72.

    Ibid. § 17.

  73. 73.

    Ibid. §§ 19–21. See also Immediate Appeal Against Trial Chamber’s Second Decision on Severance and Response to Co-Prosecutors’ Second Severance Appeal, Nuon Chea and others (002/19-09-2007/ECCC-E284/4/1), Supreme Court Chamber, 27 May 2013, § 18, arguing that efforts to fashion limited exceptions to bring in evidence of conduct and policies falling outside the subject matter of Case 002/01 ‘caused a continuing violation of Nuon Chea’s ability to confront the witnesses against him.’

  74. 74.

    Case 002/01 Judgment, Nuon Chea and others (002/19-09-2007/ECCC-E313), Trial Chamber, 7 August 2014, § 130.

  75. 75.

    Nuon Chea Application for Disqualification of Judges Nil Nonn, Ya Sokhan, Jean-Marc Lavergne, and You Ottara, Nuon Chea and others (002/19-09-2007/ECCC-E314/6), Trial Chamber, 29 September 2014 (hereafter Nuon Chea Application for Disqualification of Judges), § 81.

  76. 76.

    Addendum to Reply to OCP Response to Nuon Chea’s Immediate Appeal, supra note 70, § 12.

  77. 77.

    See Decision on Sequencing of Trial Proceedings in Case 002/02, Nuon Chea and others (002/19-09-2007/ECCC-E315), Trial Chamber, 12 September 2014, § 7. As another possible example, the prosecution has acknowledged that ‘the bulk’ of documents it sought to have admitted for the entirety of Case 002 ‘have already been admitted.’ Transcript of Proceedings (Public), Nuon Chea and others (002/19-09-2007/ECCC-E1/238.2), Trial Chamber, 12 December 2013, at 39.

  78. 78.

    Decision on Co-Prosecutors’ Request for Reconsideration, supra note 30, § 10 (emphasis added).

  79. 79.

    Conclusions de la Défense de M. Khieu Samphân sur la Nécessité d’Attendre un Judgement Définitif dans le Procès 002/01 avant de Commencer le Procès 002/02, Nuon Chea and others (002/19-09-2007/ECCC-E301/5/5), Trial Chamber, 5 February 2014, § 26.

  80. 80.

    Severance Order, supra note 6, § 2.

  81. 81.

    Ibid. § 6. Cf. SCC Second Severance Decision, supra note 12, § 4, defining the severance process to include ‘discrete trials, each comprising finite portions of the Indictment, and each of which would, in turn, conclude with a verdict and sentence in the event of a conviction[.]’

  82. 82.

    Memorandum from Trial Chamber President Nil Nonn, Clarification Regarding the Use of Evidence and the Procedure for Recall of Witnesses, Civil Parties and Experts from Case 002/01 in Case 002/02, Nuon Chea and others (002-02/19-09-2007/ECCC-E302/5), Trial Chamber President, 7 February 2014, § 5.

  83. 83.

    See Transcript of Proceedings (Public), Nuon Chea and others (002-02/19-09-2007/ECCC-E1/239.1), Trial Chamber, 11 February 2014, at 21.

  84. 84.

    SCC Third Severance Decision, supra note 14, § 72.

  85. 85.

    Ibid. § 70.

  86. 86.

    Clarification Regarding the Use of Evidence and the Procedure for Recall, supra note 82, § 7.

  87. 87.

    SCC Third Severance Decision, supra note 14, § 74 (emphasis added). See also ibid. § 75, finding that even if Case 002/01 was severed at the start of trial, the incorporation of its case file into Case 002/02 would not affect the evidence’s probative value ‘considering that the evidence has been led by the same parties and before the same panel of judges.’

  88. 88.

    Clarification Regarding the Use of Evidence and the Procedure for Recall, supra note 82, § 8.

  89. 89.

    SCC Third Severance Decision, supra note 14, § 75. See also Memorandum from Acting Trial Chamber President Ya Sokhan, Clarification on the Consequences of the Severance of Case 002, Nuon Chea and others (002-02/19-09-2007/ECCC-E318), Trial Chamber President, 13 October 2014, § 3(d), acknowledging that ‘questions of relevance may be raised and the parties will be afforded the opportunity to test and challenge evidence already put before the Chamber in Case 002/01 insofar as it relates to the new charges in Case 002/02.’

  90. 90.

    SCC Second Severance Decision, supra note 12, § 39.

  91. 91.

    Reasons for Decision on Prosecution Interlocutory Appeal from Refusal to Order Joinder, Milošević (IT-99-37-AR73, IT-01-50-AR73 & IT-01-51-AR73), Appeals Chamber, 18 April 2002, §§ 30–32. The ECCC Trial Chamber found these concerns to not be clearly applicable to Case 002 because the accused are represented by counsel and the ICTY Appeals Chamber ‘considered that two successive trials would be particularly onerous to Milošević as he was representing himself.’ Decision on Additional Severance of Case 002, supra note 3, § 20. However, the appeals chamber did not highlight this aspect of the potential burden on the accused—one of four factors discussed—as a dispositive factor in its decision. See Milošević decision, supra § 27.

  92. 92.

    Mladić decision, supra note 13, § 34.

  93. 93.

    See e.g., Mr Khieu Samphan’s Motion Reasserting His Right to a Fair and Adversarial Criminal Trial, Nuon Chea and others (002/19-09-2007/ECCC-E263), Trial Chamber, 11 February 2013, challenging the consistency and fairness of the Trial Chamber’s approach to documentary evidence in Case 002/01.

  94. 94.

    For example, although some Case 002/01 witnesses could be questioned regarding the entire Case 002 indictment, the Trial Chamber often discouraged the practice in an effort to expedite the process. See e.g., Decision on Assignment of Experts, supra note 59, § 4, allowing experts to testify on all matters related to the Case 002 closing order, but reminding parties ‘that the principal focus of their examination should remain on the subject-matter of Case 002/01.’ Time limits on questioning also may have made this impractical in some cases. Nuon Chea has said that ‘[d]etailed cross-examination’ of Case 002/01 witnesses about questions outside the scope of that case—but discussed under the heading of ‘structure’—‘would have been beyond the scope of Case 002/01 as well as a poor strategic use of the defence’s allotted time[,]’ and argued that these witnesses must be reheard when additional trials were held. Immediate Appeal Against Trial Chamber’s Second Decision on Severance, supra note 73, § 19. His team asked the Chamber to adopt a liberal standard for the recall of witnesses. See Nuon Chea’s Response to Co-Prosecutors’ Submission Regarding Use of Evidence from Case 002/01 in Case 002/02, Nuon Chea and others (002/19-09-2007/ECCC-E302/2), Trial Chamber, 3 February 2014, § 4.

  95. 95.

    SCC Third Severance Decision, supra note 14, § 85.

  96. 96.

    Clarification on the Consequences of the Severance of Case 002, supra note 89, § 3(e), stating: ‘Findings made in Case 002/01 including those based on evidence also relevant to Case 002/02 do not bind the Chamber, and common factual elements in all cases resulting from Case 02 will be established anew.’

  97. 97.

    See President’s Memorandum on the Proposal to Appoint a Second Panel of the Trial Chamber to Try the Remaining Charges in Case 002, supra note 55, §§ 7–8 (discussing the efficiency benefits of having the second case heard by the same judges).

  98. 98.

    In discussions preceding the start of Case 002/02, the prosecution’s perspective on this problem shifted. It later became the prosecution’s view that there was no need to take judicial notice of adjudicated factual findings in Case 002/01; instead, as discussed in the section above, they want all evidence admitted in Case 002/01 to be automatically admitted in Case 002/02, and thus available together with newly admitted evidence as a basis for factual findings, which the Trial Chamber agreed to do. See Co-Prosecutors’ Comments on Agenda of Trial Management Meeting for Case 002/02, Nuon Chea and others (002/19-09-2007/ECCC-E301/1), Trial Chamber, 20 November 2013, § 3.

  99. 99.

    Co-Prosecutors’ Request for Reconsideration, supra note 28, § 26. Judicial notice ‘establishes a well-founded presumption for the accuracy of [a] fact’ and shifts the burden to the disputing party to disprove it. Decision on Prosecution Motions for Judicial Notice of Adjudicated Facts and for Admission of Written Statements of Witnesses Pursuant to Rule 92bis, Krajišnik (IT-00-39-PT), Trial Chamber, 28 February 2003, § 16. Res judicata only applies inter partes to matters already fully determined in a case or to an individual if a prior criminal case had fully litigated the issue. Judgment, Delalić (IT-96-21-T), Trial Chamber, 16 November 1998, § 228.

  100. 100.

    See Transcript of Proceedings 11 February 2014, supra note 83, at 11–12, quoting the prosecution. At the ICTY, the judicial notice rule provides in part: ‘At the request of a party or proprio motu, a Trial Chamber, after hearing the parties, may decide to take judicial notice of adjudicated facts or of the authenticity of documentary evidence from other proceedings of the Tribunal relating to matters at issue in the current proceedings.’ Rule 94(B) ICTY RPE. The ICTY Appeals Chamber has ruled that ‘[o]nly facts in a judgement, from which there has been no appeal, or as to which any appellate proceedings have concluded, can truly be deemed ‘adjudicated facts’ within the meaning of Rule 94(B).’ Decision on the Motions of Drago Josipovic, Zoran Kupreškic and Vlatko Kupreškic to Admit Additional Evidence Pursuant to Rule 115 and for Judicial Notice to Be Taken Pursuant to Rule 94(B), Kupreškic and others, (IT-95-16), Appeals Chamber, 8 May 2001, § 6. ‘By taking judicial notice of an adjudicated fact, a Chamber establishes a well-founded presumption for the accuracy of this fact, which therefore does not have to be proven again at trial, but which, subject to that presumption, may be challenged at that trial[.]’ Decision on the Prosecution’s Interlocutory Appeal Against the Trial Chamber’s 10 April 2003 Decision on Prosecution Motion for Judicial Notice of Adjudicated Facts, S. Milosevic (IT-02-54-AR73.5), Appeals Chamber, 28 October 2003 (citation omitted).

  101. 101.

    SCC Third Severance Decision, supra note 14, § 43.

  102. 102.

    Co-Prosecutors’ Request for Reconsideration, supra note 28, § 27 (citations omitted).

  103. 103.

    Decision on Ieng Sary’s Motions Regarding Judicial Notice of Adjudicated Facts from Case 001 and Facts of Common Knowledge Being Applied in Case 002, Nuon Chea and others (002/19-09-2007/ECCC-E69/1), Trial Chamber, 4 April 2011, at 3.

  104. 104.

    Co-Prosecutors’ Request for Reconsideration, supra note 28, § 28.

  105. 105.

    See Co-Prosecutors’ Immediate Appeal of Decision Concerning the Scope of Trial in Case 002/01, supra note 46, n. 42.

  106. 106.

    See Decision on Co-Prosecutors’ Request for Reconsideration, supra note 30, §§ 7–8, 10. An SCC Case 002/01 verdict was expected to be issued a year or more into evidentiary proceedings. See Decision on Khieu Samphan Request to Postpone Commencement of Case 002/02 until a Final Judgment Is Handed Down in Case 002/01 (002/19-09-2007/ECCC-E301/5/5/1), Trial Chamber, 21 March 2014, § 11, referencing the prosecution’s estimate based on the passage of time between the trial and appeals judgments in Case 001 that the SCC would take at least a year and a half to issue its Case 002/01 Judgment. As of January 2016, no 002/02 appeals judgment had been issued.

  107. 107.

    Decision on Co-Prosecutors’ Request for Reconsideration, supra note 30, §§ 9–12.

  108. 108.

    See SCC Third Severance Decision, supra note 14, §§ 83, 85.

  109. 109.

    Order Regarding the Establishment of a Second Trial Panel, Nuon Chea and others (002/19-09-2007/ECCC-E284/4/7/1), Supreme Court Chamber, 23 July 2013; SCC First Severance Decision, supra note 7, § 51.

  110. 110.

    Mladić decision, supra note 13, § 35.

  111. 111.

    President’s Memorandum on the Proposal to Appoint a Second Panel of the Trial Chamber, supra note 55, §§ 7–8. But cf. Mladić decision, supra note 13, § 34, noting that the need for a trial chamber to rehear witnesses in the second case would be the same whether or not the same chamber heard both cases.

  112. 112.

    Rule 34(2) ECCC Internal Rules (emphasis added).

  113. 113.

    Public Decision on the Co-Lawyers’ Urgent Application for Disqualification of Judge Ney Thol Pending the Appeal Against the Provisional Detention Order in the Case of Nuon Chea, Nuon Chea and others (002/19-09-2007/ECCC-C11/29), Pre-Trial Chamber, 4 February 2008, § 20, citing Judgment, Furundzija (IT-95-17/1-A), Appeals Chamber, 21 July 2000, § 189.

  114. 114.

    See e.g., Public Decision on the Co-Lawyers’ Urgent Application for Disqualification of Judge Ney Thol, supra note 113, §§ 15–19.

  115. 115.

    Decision on Ieng Sary’s Application to Disqualify Judge Nil Nonn and Related Requests, Nuon Chea and others (002/19-09-2007/ECCC-E5/3), Trial Chamber, 28 January 2011, § 8.

  116. 116.

    SCC Third Severance Decision, supra note 14, § 83.

  117. 117.

    Clarification on the Consequences of the Severance of Case 002, supra note 89, § 3(f).

  118. 118.

    Co-Prosecutors’ Submission Regarding the Scope of Case 002/02 and Trial Schedule with Annex A, Nuon Chea and others (002/19-09-2007/ECCC-E301/2), Trial Chamber, 5 December 2013, § 5. See also generally Co-Prosecutors’ Response to Nuon Chea’s Disqualification Application, Nuon Chea and others (002/19-09-2007/ECCC-E314/9), Trial Chamber, 10 October 2014.

  119. 119.

    Immediate Appeal Against Trial Chamber’s Second Decision on Severance, supra note 73, § 12.

  120. 120.

    Addendum to Reply to OCP Response to Nuon Chea’s Immediate Appeal, supra note 70, § 22.

  121. 121.

    Transcript of Proceedings 11 February 2014, supra note 83, at 44. See also Transcript of Proceedings 12 December 2013, supra note 77, at 92–93.

  122. 122.

    Decision on Applications for the Disqualification of Trial Chamber Judges, Nuon Chea and others (002/19-09-2007/ECCC-E314/12), Special Panel, 14 November 2014 (decision with reasoning to follow). See Mr Khieu Samphan’s Request for Reconsideration of the Need to Await Final Judgment in Case 002/01 Before Commencing Case 002/02 and the Appointment of a New Panel of Trial Judges, Nuon Chea and others (002/19-09-2007/ECCC-E314/1), Trial Chamber, 25 August 2014; Nuon Chea Application for Disqualification of Judges, supra note 75.

  123. 123.

    SCC Third Severance Decision, supra note 14, § 87. See also ibid. §§ 54–55, 62.

  124. 124.

    Before Case 002 was severed nearly 4,000 victims applied to be Civil Parties and most were admitted on appeal. Out of the nearly 4,000 victims taking part, only around 750 were admitted due to harm related to the charges of forced movement at issue. The Trial Chamber nevertheless let all victims remain part of the consolidated group by default. Those civil parties who did not suffer harm from one of the crimes charged in the first case therefore heard no evidence related to their harms, nor did the first judgment address them. See e.g., Julia Wallace, ‘“Mini-Trials” a Mixed Blessing for KR Victims.’ Cambodia Daily, 11 July 2012, quoting former Civil Party Lawyer Silke Studzinsky: ‘The severance order has a huge impact on more than 70 percent of our clients […]. Their participation rights are moot. They cannot address the crimes and the suffering for which they are admitted [as civil parties].’

  125. 125.

    Mladić decision, supra note 13, § 36.

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    Anne Heindel

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    Ignaz Stegmiller

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Heindel, A. (2016). Managing Enormous Mass Crimes Indictments: The ECCC Severance Experiment. In: Meisenberg, S., Stegmiller, I. (eds) The Extraordinary Chambers in the Courts of Cambodia. International Criminal Justice Series, vol 6. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-105-0_16

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