Judges’ Threat Poses New Challenge to Cambodia’s Khmer Rouge Tribunal

NEW YORK—The Khmer Rouge tribunal in Cambodia risks profoundly damaging its legacy to both the people of Cambodia and to international justice should it agree to abandon its three remaining investigative cases, on the supposed grounds of insufficient funding, the Open Society Justice Initiative said today.

The proposal that the tribunal, jointly administered by the United Nations and the Cambodian government, should put a permanent stay on the three cases was made on May 5, 2017, by the two co-investigating judges, Michael Bohlander and You Bunleng, in a highly unconventional “confidential request” to the court.

Although filed under seal, the filing was then leaked to the press; subsequently the two judges publicly acknowledged its existence and basic substance.

In the filing, they announced that they are preparing to issue a “permanent stay” of the three cases they are currently responsible for investigating, and asked for a response from the parties, the United Nations, and the court’s financial donors.

The two judges stated that they are prepared to take this action by the end of June 2017 for the sole reason that they believe inadequate funding threatens “the future of the cases” including their ability to complete the investigations, trials, and appeals that may follow any indictments.

The three investigations involve Meas Muth (former alleged Khmer Rouge naval commander), Yim Tith (former alleged acting secretary of the northwest zone), and Ao An (former alleged central zone secretary). 

Staying the three cases would effectively lead to the termination of the Extraordinary Chambers in the Courts of Cambodia (ECCC) after it completes the current second case against Nuon Chea and Khieu Sampan, currently expected to conclude in the summer of 2018.

The Justice Initiative finds the proposal, and the secretive manner in which it was presented to the court, deeply troubling, given the failure to acknowledge the persistent obstructionism of the Cambodian government towards the three cases, and the highly questionable claim that funding to complete the investigations and for further trials is uncertain.

“To close down these investigations—and the court—citing funding shortages would be to improperly ignore the persistent obstructionism of the Cambodian government, which has stymied these proceedings from the start nine years ago, “said James A. Goldston, executive director of the Open Society Justice Initiative.

“The proposal is a drastic, insufficiently supported and unwarranted option that would profoundly damage the credibility and legacy of the ECCC, without a more complete and transparent exploration of the circumstances and alternatives,” he added. 

Cases 003, 004 and 004/2 should be completed consistent with the application of the law and relevant rules to the facts of the cases. If this is impossible, it is vital that the court develop a plan with input from donors, the UN, the government of Cambodia, and civil society about how to end the cases with the least damage possible to: the achievements of the court in Cases 001 and 002; the value of information gathered during the nine years they were under investigation; the civil parties, the accused, and the people of Cambodia generally; and the rule of law in Cambodia. 

As part of its work in support of the development of international justice and accountability for grave crimes, the Open Society Justice Initiative has regularly monitored developments at the ECCC since before it began court proceedings in 2007.