Khmer Rouge Court at Critical Point

The Khmer Rouge tribunal in Cambodia is currently considering the appeal of Kaing Guek Eav, alias Duch, the former head of the notorious Tuol Sleng prison and torture center, who was sentenced to 35 years in prison last year in the court’s first case. It is also preparing to try four surviving Khmer Rouge senior leaders later this year.

But the fate of five additional suspects remains undecided—and may never reach trial because of interference from the Cambodian government.

Prime Minister Hun Sen has been saying that only four or five people would be prosecuted by the court—which uses both local and international prosecutors and judges—from even before the court was set up in 2003.  But as the reality of there being five additional suspects has set in, the message from the Cambodian government has got louder, while the UN has become more silent.

In other international criminal courts, a decision about whom to prosecute is usually one made by the prosecutor.  But at the Extraordinary Chambers in the Courts of Cambodia (ECCC), which follows a civil law tradition (taken from the French system) it is a decision made first by  co-prosecutors—one Cambodian, one international—and then a full investigation by two “co-investigating” judges.

The five unnamed suspects were investigated by then international co-prosecutor, Robert Petit, despite opposition by his Cambodian colleague, Chea Leang.  They disagreed on whether the cases should proceed and, according to the provisions built into the court’s founding documents,  the cases were eventually referred to the two co-investigating judges.

For a year, almost no progress was made in the investigation at all, with both co-investigating judges saying they were occupied by the investigation of the four senior leaders of the Khmer Rouge regime (Case 002).  An attempt by the then international co-investigating judge, Marcel Lemonde, to proceed with the investigation was blocked by his Cambodian counterpart, Judge You Bunleng.

Judge Lemonde resigned in December 2010, and Judge Siegfried Blunk took over his role. Since then, no apparent substantive progress on the cases has been made.

Just last week, at a conference on civil party representation for the ECCC’s second case, a Cambodian civil party representative stood up and asked the national deputy co-prosecutor, Chan Dararasmey, what was going to happen with cases 003/004, which has been with the co-investigating judges for over 18 months.

Dararasmey replied:  “There will be no case 003 and 004 because there was no consensus between national and international co-prosecutors.”

The statement is legally incorrect—the presumption was always in favor of the cases proceeding in spite of the disagreement. But, coming from  a supposedly independent Cambodian court official, it makes the position clear: even those entrusted with the highest levels of (nonjudicial) power within the court presume the cases will not go ahead because the Cambodian government said so.

Also last week, in the monthly update issued by the ECCC’s Public Affairs Unit entitled The Court Report, the summary on the activities of the Office of the Co-Investigating Judges reports continued research into factual allegations in Cases 003 and 004, “no field investigations” and that the legal advice unit “produced a number of memoranda on complex legal issues related to Case 003 and 004.”

Growing information from inside the court suggests an imminent dropping of the case against the five suspects, possibly by a decision from the co-investigating judges to the effect that the five  are not “senior leaders” or “most responsible” and therefore don’t fall under the court’s jurisdiction.

Given the clear message from the history of these cases—that the Cambodian government has always been determined to block them—any decision dismissing these cases will cast serious doubts over the independence of the court, and worse still, over its legacy for justice in Cambodia.