The trial chamber of the Khmer Rouge tribunal has ordered defence teams – currently boycotting hearings in Case 002/02 – to appear in court starting on November 17 or face the consequences, according to a ruling made public yesterday.

In the Friday ruling, the trial chamber dismissed both teams’ reasons for refusing to attend hearings, and pointedly noted that it was keeping in mind a prosecution suggestion to temporarily replace the defence lawyers with outside representation until their boycott comes to an end.

“Based on prior conduct and statements that have been made … the Chamber puts the KHIEU Samphan and NUON Chea Defence on notice that it will take firm action should either fail to abide by the order to appear in court,” the ruling reads.

Court legal communications officer Lars Olsen said yesterday that he couldn’t say what that action might entail, but noted that under the internal rules, the court is allowed to “sanction” lawyers for misconduct.

Attorneys for Khieu Samphan have defended their boycott by stating that their client wishes them to focus on drafting his appeal for Case 002/01, in which Samphan and co-defendant Nuon Chea were handed life sentences in August. As such, Samphan’s lawyers argue, they are unable to fully participate in simultaneous evidentiary hearings in Case 002/02.

The trial chamber’s ruling, however, brushed aside this reasoning, asserting that there is "no choice to be made between the proceedings [in 002/02 and in the appeal of 002/01] because neither is optional, even for a limited period of time”.

Instead, the chamber offered to decrease the number of Case 002/02 hearing days to two per week for November and December to allow the Samphan team more time to work on the appeal. It also said that it would “look favourably” on any future requests for more defence resources, an issue the Samphan team has raised before.

Khieu Samphan (left) and lawyer Arthur Vercken sit in the ECCC courtroom where Samphan was found guilty of crimes against humanity. ECCC

But Samphan defender Kong Sam Onn said yesterday that his team would not be appearing on November 17 and that “it doesn’t make any difference” if hearing days are reduced, since the team still needs time to prep for such hearings.

The Nuon Chea team, meanwhile, has maintained it will keep up its boycott until a special judicial panel renders a decision on a motion to disqualify four of the five trial chamber judges. After the chamber’s ruling, defender Victor Koppe said yesterday that “the situation hasn’t really changed”.

“We’re still waiting for a decision from the special bench, which I really expect this week, or maybe next week,” he added. “But we’re not going to be bullied into a hearing if this concern is not addressed.”

Whether the team appears for the upcoming hearing, Koppe said, will depend on the reasoning of the special panel’s decision and on the wishes of Chea himself. If they do indeed boycott, he added, there is no legal mechanism in civil law to force attorneys to appear.

Legal expert Sok Sam Ouen agreed yesterday, saying that in Cambodian law, a “court cannot force the lawyer to appear”.

“They can invite, but if [the lawyers] do not come, there is not any crime, there is not any punishment,” he said, noting that nonetheless, ethically, lawyers were obligated to abide by a direct order from a court.

Sam Oeun also agreed, however, that in the Cambodian system, a judge faced with a motion to disqualify is required to postpone hearings until a decision is rendered.

Both teams yesterday said they suspected the “firm action” referred to in the ruling would be a decision to push ahead with the prosecution’s suggestion to appoint temporary outside attorneys to represent their clients.

Cambodia Justice Initiative program officer Long Panhavuth said yesterday that such a move could raise concerns, and that the court should seriously address defence teams’ grievances before resorting to outside counsel.

“The accused are entitled to a defence … but it does not necessarily mean the court can appoint a lawyer against their will,” he said. “[The court should] increase the resources of the defence and try to speed up the decision on the disqualification of the judges, rather than punishing the defence because they are acting on the request of their clients.”