What of UN efforts to prosecute mid-level officials?
With Friday’s closure of an apparently dormant investigation into the revolutionary military, the Khmer Rouge tribunal may be remembered not only for the suspects it tries but especially for those it does not.
The manner of Friday’s announcement suggested that the court did not wish to attract any attention: After the close of business before a holiday weekend, the investigating judges announced in a single sentence that they had ended their investigation in Case 003, one of two opposed by Prime Minister Hun Sen.
This was consistent with a reported plan by the judges to do away with both of the court’s pending cases, which together reportedly concern many more than 100,000 victims. No arrests have been made and no charges announced.
Case 004 concerns three people suspected of genocide and crimes against humanity but, like the two suspects in Case 003, they are enjoying what amount to official guarantees of impunity.
The additional cases brought by UN prosecutors were an attempt to deliver accountability for crimes committed by mid-level Khmer Rouge officials whose actions allegedly accounted for much of the enormous scale of killing under the regime, even if their authority might not have been nationwide.
If the court ultimately rejects efforts to prosecute the five additional suspects, judges may adopt the view, apparently taken by the government, that responsibility for Khmer Rouge crimes increases as a suspect becomes more senior in the former regime’s hierarchy.
Ministers would by definition be more culpable than zone secretaries and their deputies, and thus be exclusively liable to prosecution, under this theory.
In a confidential pleading in 2009, Chea Leang, the court’s Cambodian co-prosecutor, opposed the opening of case 003 because the suspects named, Sou Met and Meas Muth, “worked under the orders of their superior, Son Sen,” the Khmer Rouge defense minister who was murdered on Pol Pot’s orders in 1997.
“Moreover, Meas Mut and Sou Met did not have the power to order executions or torture or commit crimes against the victims because all decisions to execute, torture or commit crimes were made by their superior,” wrote Ms Leang, who has championed the government’s position in arguing against the additional cases.
“Therefore Sou Met and Meas Mut do not fall into the category of senior leaders or those most responsible,” the category which is the court’s legal mandate, she said.
But just five days after this pleading was filed, the UN side of Ms Leang’s office publicly took the opposite view, beginning a day of discussion of Sou Met’s role in secret police purges during the trial of S-21 chairman Kaing Guek Eav, alias Duch.
A British lawyer, Alex Bates, then senior assistant prosecutor, cited documentary evidence to argue that Sou Met and Duch had acted together in the criminal elimination of suspected enemies of the regime.
Though this contradicted Ms Leang’s private views, there was no objection from Cambodian prosecutors in open court.
According to Mr Bates, prosecution records indicated that at least 299 of Met’s subordinates in Central Committee Division 502, which was based at the Phnom Penh airport, had been delivered into the hands of Duch.
Citing a series of letters from Met to Duch between April 1 and Oct 4 of 1977, Mr Bates accused Met of directing the interrogation under torture of S-21 detainees, seeking to know whether they had made full “confessions” and of compiling and referring lists of “traitors” to the secret police for execution.
On June 2, 1977, Met wrote to Duch about Kip Voek, a musician assigned to Division 801, saying, “This name was not yet implicated or confessed by the enemy…. Based on my examination, the person is an enemy.”
Three days earlier, Sou Met had written to Duch of a detainee named Mao: “You said you were going to provide us with Mao’s confession…. If Angkar allows, I would like to have that confession in order to search for more enemies.”
Duch at the time claimed that these communications were in fact written by Son Sen, the defense minister, or by Nuon Chea, the Communist Party’s deputy secretary, who took direct control of the secret police in August 1977. Both supposedly sought to conceal their identities by posing as Met in official records.
But according to Mr Bates, these records showed Met was “taking the initiative” to advance the policy of purges created by the military’s General Staff and the party.
In an historical and legal study published ten years ago, lawyer Brian Tittemore and historian Stephen Heder, who later became an investigator for the tribunal, said both Met and Muth had been made aware of Khmer Rouge policies of execution and bore responsibility for them.
According to minutes on file with the Documentation Center of Cambodia cited by the authors, Muth told a meeting of division leaders summoned by Son Sen on Oct 9, 1976, of his concern about “the activities of traitors within the party.”
“Enemies are still camouflaged and infiltrated,” he said. “It is imperative to make arrangements so as to seize the initiative in advance.”
Anne Heindel, legal adviser to DC-Cam, said yesterday that, while the definitions of “senior leaders” and those “most responsible” were open to some interpretation, she did not believe this could exempt regional authorities.
“Certainly people who were in the zones who were executing these policies fall within that category,” she said of the court’s mandate.
Dismissing the court’s two additional cases could be “politically expedient but legally problematic,” she said.
“I don’t find it very persuasive based on what I know that these cases should be dismissed,” she said.
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