In this week’s review, news about the ECCC and proceedings following Nuon Chea’s death, fair trial rights and the death penalty in Iraq, and possible crimes against humanity in Mali.
ECCC accused, Khieu Samphan, responds to ECCC Prosecution request on its appeal following Nuon Chea’s death
Lawyers for the accused Khieu Samphan, currently facing appeal proceedings in Case 002/02 at the ECCC, have lodged a response to the prosecution’s request for a proportionate extension of its appeal brief if the Supreme Court Chamber grants extensions the defence. These proceedings relate to the appeal of the trial judgment in Case 002/02, which was released in a fully reasoned form on 28 March 2019. Both Khieu Samphan and his co-accused Nuon Chea were found guilty of genocide, crimes against humanity and grave breaches of the Geneva Conventions. The co-prosecutors filed a notice of appeal on 21 June 2019 submitting that the Trial Chamber had erred in fact and law by finding that male victims of forced marriage who were coerced to have sexual intercourse without their free consent were not victims of the crime against humanity of Other Inhumane Acts.
Nuon Chea also filed a notice of appeal on 1 July 2019, however later died in hospital on 4 August 2019. On 10 July, the co-lawyers for Khieu Samphan filed a request to the Supreme Court Chamber to submit an appeal brief of 950 pages within 10.5 months of filing their notice of appeal. In responses to this request, and a similar one filed by Nuon Chea prior to his death, the prosecution opposed the request asked that any extension allowed to the defence be allowed to the prosecution in a proportionate manner, specifically calling for 70% of the combined total of pages and 50% of the combined time for filing its response. In the current submission, the co-lawyers for Khieu Samphan have claimed that the prosecution’s request for proportionate extensions is “evolving in nature and unsubstantiated, unreasonable and untimely.” (Khieu Samphan Response)
ECCC terminates appellate proceedings against Nuon Chea following his death
Following the death of Nuon Chea on 4 August 2019, the ECCC Supreme Court Chamber has extinguished all criminal actions and terminated civil proceedings against him. The Chamber established that this is in accordance with Cambodian criminal law and the ECCC’s own internal rules. Even though the Defence filed a notice of appeal on 1 July 2019, the Chamber considered that it had not yet entered into deliberations on the factual or legal challenges. The novelty of terminating the current proceedings arises from the lack of provisions explicitly governing situations after the defendant filed his notice of appeal.
The Nuon Chea Defence argued that allowing the appeal to continue posthumously is in the interests of justice, failing which the accused should be presumed innocent. While the approach at the ICTY was to terminate the proceedings and pronounce the trial judgment as final, national criminal law provisions vary worldwide. The trial against Nuon Chea and Khieu Samphan commenced on 13 January 2011. He died at the age of 93. He was allegedly the most senior serving official of the Pol Pot’s regime. In 2014, he was found guilty of crimes against humanity and in 2018, convicted of genocide against ethnic-Vietnamese and Cham Islamic minority. (ECCC Decision, The Conversation)
UN Special Rapporteur expresses concerns over fair trial standards of French nationals sentenced to death in Iraq
The UN Special Rapporteur on extrajudicial, summary and arbitrary executions has expressed fears that seven French nationals suspected of joining ISIS were sentenced to death without a proper fair trial. Moreover, the evidence suggests that they were subject to torture. The Special Rapporteur, as well as rights groups, have criticised the Iraqi criminal system for failing to meet international law standards. She urged the French authorities to intervene and enter into an extradition agreement with the Iraqi government.
Following their arrest by the Syrian Democratic Forces and subsequent transfer to Iraq, the seven French nationals were sentenced to death on charges of membership of a terrorist organisation, ISIS. The Iraqi justice system has long been criticised for convicting alleged ISIS members without adducing evidence and without effective victim participation. The Iraqi government, however, seems lenient towards the transfer of the seven accused and has referred to the supremacy of national jurisprudence over government agreements. (UN OHCHR, Kurdistan 24)
Killing of Children Spikes in Mali in Possible Crimes Against Humanity
UNICEF has reported a sharp rise in the number of children killed in Mali in the first half of this year, in attacks that could constitute crimes against humanity. Attacks by ethnic-based militias in the central region of Mopti have caused most of the deaths. UNICEF also reports an increase in children being maimed and a doubling of children recruited into armed groups compared with last year. UNICEF Executive Director Henrietta Fore has called on all parties to the conflict in Mali to ‘stop attacks on children and take all necessary measures to keep them out of harm’s way, in line with international human rights and humanitarian law.’ The ICC is currently investigating alleged War Crimes in Mali connected with a rebellion in northern Mali in January 2012 and a coup that ousted President Toure several months later. The ICC Prosecutor made a statement in March this year condemning recent violent attacks in the Mopti region, which killed 130 civilians, and committing to ‘take all necessary steps to ensure the investigation and prosecution of those who participated in or otherwise contributed to what appears to be egregious crimes which may fall under the jurisdiction of the International Criminal Court.’ (The Guardian, UNICEF)