Phnom Penh and Washington
International prosecutor Andrew Cayley, (2010 file photo).
“This raises suspicion that the court is under political influence.”
A disagreement between the Khmer Rouge tribunal prosecutors over whether more investigation is needed in a controversial case has rekindled worries over whether the UN-backed court will meet its mandate.
Victims of the regime, who were supposed to be well-integrated into the workings of the court, have meanwhile begun complaining more frequently they are dissatisfied with their roles in the court and their treatment by it, threatening the legacy of a tribunal that was initially seen as a model of international justice and reconciliation for mass atrocities like genocide.
International prosecutor Andrew Cayley said in a statement this week the investigating judges for the court need to go back and re-investigate so-called Case 003, which involves two unnamed suspects. He also urged the court to name the suspects publicly and inform them they are under investigation.
His counterpart, Chea Leang, however, said in her own statement this week she did not believe the two suspects ought to be considered “most responsible” for the crimes of the Khmer Rouge and therefore do not fall under the mandate of the court.
The public division between the two prosecutors highlights longstanding splits within the hybrid court, along with accusations of political interference from the prime minister, as victims, lawyers and other observers questioned whether it will be able to perform its functions.
“Its hard to deny there is governmental interference,” said Lao Monghay, an independent researcher and political analyst. “Because the position of the Cambodian government and the position of the Cambodian co-prosecutor are not different, and sometimes they use the same words.”
Tribunal officials said Friday the remarks between the prosecutors were nothing more than disagreements over legal matters. Such a disagreement cannot, however, stop a request for further investigation, the officials said.
The tribunal has only tried one suspect, torture chief Duch, and is preparing for a second case, for four jailed leaders. Cases 003 and 004 would require further arrests of five more Khmer Rouge cadre.
“From what we do know, there has been no field investigation carried out in these cases,” said James Goldston, executive director of the US-based Open Society Justice Initiative. “Nor have any of the suspects been questioned, which would seem to fall far short of what is required [for the court] to comply with international standards for criminal investigation.”
Goldston has been sharply critical of apparent political interference in the court’s work, especially in statements by Prime Minister Hun Sen, who is adamantly against any further indictments by the court. Goldston said this week OSJI monitors in Cambodia were reporting concerns that the outcomes of those cases had been “pre-determined.”
“If confirmed, these reports would undermine both the appearance and reality of independence and impartiality, two qualities which are central to the integrity of any court,” he said.
The perception of political interference in the court, which only stood up in 2006 after years of wrangling between the UN and Cambodia, along with reports of corruption, kickbacks and mismanagement, have shaken the faith of some in its ability to independently dispense justice.
“In the end, the UN will jump when Prime Minister Hun Sen tells them to jump,” said Peter Maguire, a US law professor and author of “Facing Death in Cambodia.” “Their submission is a well-established fact at this point.”
He called the court “dysfunctional” and talk of any further trials “premature.”
The tribunal has been an experimental mix of international and Cambodia staff, prosecutors and judges, hosted in the country where mass atrocity crimes were committed and with an aim of national reconciliation.
Maguire said that in the end if the court fails to try four leaders already in custody—Nuon Chea, Khieu Samphan, Ieng Sary and Ieng Thirith—before they die, it will have proven itself “a farce that should never be attempted again.”
Whether those four can be tried is one question. And whether more should be further investigated, indicted and tried is still another.
David Tolbert, a former UN representative to the tribunal, said this week there appeared to be “strong arguments” those suspects in cases 003 and 004 are “most responsible” for the crimes.
“We will see what happens,” he said in an interview.
The court has so far refused to indentify five suspects in those two trials. However, scholars and civil party complainants have named those whom they believe to be most likely: Su Meth, commander of the Khmer Rouge air force; Meas Muth, commander of its navy; Im Chaem, a district chief; Ta An, a regional commander in Kampong Thom province; and Ta Tith, a regional commander in Takeo province.
Contacted by phone Tuesday, Im Chaem, who now lives as a commune leader in the former Khmer Rouge stronghold of Anglong Veng, in Oddar Meanchey province, said she was not concerned about an indictment.
“Prime Minister Hun Sen said he would protect me,” she told VOA Khmer by phone. “He said only five will be allowed brought [to justice], and said, ‘Don’t worry, you won’t be allowed to be brought anywhere,’ so one has confidence in his word. He seems to have maintained his word consistently, making the people warm to him.”
Im Chaem was alluding to concerns that further indictments would stir the long-dormant regime, many of whom folded into the government in 1998 after promises of amnesty for their crimes under the Khmer Rouge.
She said she has never been questioned by anyone from the tribunal, but maintained she had done nothing wrong while during the regime’s rule. “I was commanding, under leadership,” she said.
Meas Muth—who retired only a year ago with the rank of major general, as an adviser to the Ministry of Defense—also warned of instability, were he to be arrested and brought to trial by the court. Former subordinates would rise up, he said, including those who are currently soldiers along the border, where Cambodia is currently undergoing a military standoff with Thailand.
“I see it like this,” he said in a phone interview Tuesday: “Because the situation along the border is not good, and national development is not moving well, then if we are stirred up it will more or less impact the feeling of some troops that are in [the Royal Cambodian Armed Forces], who are standing as a fence along the border.”
He too denied any personal responsibility for the atrocities of the Khmer Rouge, saying he had “struggled” for preservation of the nation.
Such positions by former Khmer Rouge highlight the concerns for the Cambodian government, said Hang Chhaya, executive director of the Khmer Institute for Democracy.
“They have to be careful, because ex-Khmer Rouge soldiers are still out there,” he said Friday. “They don’t want to touch their feelings, because Case 003 could be related to the civil war’s end in 1998.”
Dissatisfaction with the court
Victims of the Khmer Rouge, meanwhile, are growing increasingly disillusioned with the court.
In its first guilty verdict, the court sentenced Kaing Kek Iev, the Tuol Sleng prison chief better known as Duch, to a commuted 19 years in prison. It offered little in the way of reconciliation, putting the names of only some of his victims on the court’s website and offering copies of Duch’s testimony to the public.
Many people whose family members were among more than 12,000 tortured at the prison and later executed, and handful of survivors, were not happy with the seemingly light sentence and meager compensation.
Disillusionment has only grown, as tribunal officials have further limited participation of civil parties in court proceedings.
On Thursday, Seng Theary, a US-based lawyer who has emerged as a leader of victim participants and a vocal critic of the court, called for the dismissal of several top tribunal officials.
In a public statement, she called for the UN’s top representative at the court, Knut Rosandhaug, and its investigating judge, Siegfried Blunk, to resign because they had failed to adequately include civil participants.
That followed a court announcement on April 29 that investigating judges had “concluded” their investigation into Case 003, which procedurally should have given 15 days to prosecutors and civil parties to review the case and request further investigation.
However, because defendants in that case have not been publicly named, civil party lawyers said they could not properly engage in the proceedings.
OSJI’s Goldston said the April 29 notice did not apprise victims of how they could be a part of the case, a lapse he called “troubling.”
“For a variety of reasons, victims of crimes under investigation in cases 003/004 should have ample information and opportunity to participate,” he said in an e-mail. “We are hopeful that the court will grant the international co-prosecutor’s stated request to extend the period within which victims must file applications to be heard.”
Tolbert, the former UN representative who now heads the International Center for Transitional Justice, said the victims’ needs had been mishandled. It would be a “travesty,” he said, if the victims were limited in their participation by such an approach.
Cayley, the international prosecutor, has requested an extension for victims to file for the upcoming cases by six weeks, but even that falls short, said Nou Leakhena, who has helped gather US-Cambodian victims for participation in the trial.
“The deadline set by the international prosecutor is not realistic,” she told VOA Khmer. “He should be serious about this. This is like playing around with the victims, undermining their mental vulnerability.”
Meanwhile, she said the Cayley and Chea Leang are supposed to be representing victims against the defendants, not arguing publicly.
“Why don’t they agree with each other?” she said. “This raises suspicion that the court is under political influence.”
Added together, there is lingering doubt among some tribunal observers that cases 003 and 004 will come to a conclusion, which would mean the court, after many years and millions of dollars, would have only tried five people at most.
“Before, we thought it was just an issue of independence,” Long Panhavuth, program officer for the Cambodia Justice Initiative, told “Hello VOA” Thursday. “And now it moves to [an issue] of neutrality and especially relates to the integrity of some international staffers. Some have not fulfilled their roles and obligations to ensure they provide justice and the court’s independence and impartiality.”
Some issues were not coming from the government or Cambodian side, he said, “but from the internationals directly.” He did not elaborate.
Issues that should have been solved long ago are coming to the fore, he said, at “the last minute,” which threatened the proceedings for cases 002, 003 and 004.