Geriatric war criminals

At 86-years-old, and with a number of ailments, including heart disease, high blood pressure and fatigue, Nuon Chea's health is far from good. However, Nil Nonn, who heads the five-judge bench in the Trial Chamber, said Friday that the defendant's physical and mental health was good enough. Nuon Chea, he concluded during the 20-minute hearing, is fit for trial.

"Notwithstanding the advanced age and frailty of the accused, Nuon Chea, and the accused's precarious physical health," he said, "the recent report and testimony of the court-appointed medical experts clearly indicate that the accused remains capable of meaningful participation in his own defence."

Nuon Chea is one of the surviving leaders of the Khmer Rouge, four of whom went on trial in late 2011 charged with genocide, crimes against humanity and war crimes for their alleged roles in the deaths of some 2 million Cambodians during the movement's rule between 1975-79.

Their age and health have long been concerns. The tribunal lost the first of its four defendants in Case Two last year when the court ruled that former social affairs minister Ieng Thirith was suffering from dementia and was unfit for trial. Earlier this month it lost another after her husband, the ex-foreign minister Ieng Sary, died aged 87.

That means two defendants remain: Nuon Chea and the former head of state Khieu Samphan, who is 81. Many survivors are concerned that one or both men might die before the court hands down a judgment in Case Two.

Flawed solution

The complex indictment against the defendants runs to more than 500 pages. That reality, combined with the age and health of the defendants, is the reason why in 2011 the Trial Chamber judges decided - without consulting any other parties - to split the case into a series of mini-trials. They said the court would get around to hearing other crimes in subsequent mini-trials.

The first mini-trial, which has dragged on for nearly 18 months now, is assessing only two of the indictment's many crimes: the forced movement of people in 1975 and the crimes committed at a single execution site. However, very few people believe that this trial - and indeed this court - will ever get beyond the first mini-trial, which means there is little likelihood that the remaining crimes will ever be heard. That has many survivors worried.

Last year the prosecution appealed the Trial Chamber's severance decision. Last month the tribunal's Supreme Chamber agreed with the prosecution. In a stinging rebuke the tribunal's most senior judges castigated their colleagues in the Trial Chamber and ordered them to revisit the severance decision, not least because this first mini-trial is not representative of the larger scope of crimes in the indictment.

On Friday, after Nil Nonn announced that Nuon Chea was fit for trial, he turned to the second item on the agenda: The Trial Chamber, he said, had heard arguments from all parties on the severance issue but had concluded that it was going to proceed as it has all along. It will only hear evidence on the forced movement of people and on that sole execution site.

The decision has stunned observers outside the court and by all accounts many within it too. The judges' reasoning for their ruling will not be known until the Trial Chamber issues its written reasoning at an unspecified future date.

Victims disappointed

When the Khmer Rouge took power in Cambodia in 1975, they enslaved the population and forced everyone to labour in work sites across the country. They also subsumed the people to the will of Angkar - the Organization - which had full control over every element of people's lives.

One of those elements was marriage: Angkar decided who would marry whom. An estimated 200,000 Cambodians were subjected to forced marriage, a crime against humanity. Around 650 civil parties to Case Two are victims of forced marriage, and some are members of a US-based victims' organization called ASRIC, which earlier this week called for the Trial Chamber to add forced marriage to mini-trial one, unsuccessfully as it turned out.

ASRIC executive director Leakhena Nou, who was at the tribunal hearing on Friday, says many of the 174 survivors in her organization will be upset with the Trial Chamber's ruling, as will many other victims. The crimes in mini-trial one are simply not indicative of their experiences. She believes the decision is a lost opportunity.

"By expanding other crimes that we had mentioned - genocide and forced marriage - at least it would be more inclusive of all the victims," she says. "I think on behalf of the survivors, it's quite disappointing."

Nou points out that the trial of the former leaders represents the only chance that survivors will have to obtain some form of justice three decades on. And although she is sympathetic to the court's desire to reach a judicial resolution as speedily as it can - and that it is hobbled by an array of problems, including a lack of funding and the ill health of the defendants - doing so "at the cost of the survivors is quite unfair."

"If this is all the court can deliver, I really don't think it's a very comprehensive form of justice," she says.