Despite Judge’s Efforts, Politics Rule at Tribunal

Mark Harmon, the Khmer Rouge tribunal’s fourth international co-investigating judge, announced his resignation this week having accomplished something his predecessors did not—the issuance of arrest warrants in government-opposed cases 003 and 004.

Recently released documents show that Judge Harmon’s arrest orders, however, have gone ignored by police, making concrete what has long been speculated: The Cambodian government is unwilling to cooperate with the U.N. in prosecuting suspects beyond those currently being tried.

–News Analysis

But while the outgoing judge succeeded in quietly pursuing investigations without the cooperation of his Cambodian counterpart since arriving at the court in July 2012, the U.N. has continued to remain silent about government inaction, and Judge Harmon cited personal reasons when he announced his resignation on Tuesday.

According to court monitors, Judge Harmon’s legacy will be that of an effective operator who skirted controversy and, despite failing to secure the arrests of suspects beyond the ongoing Case 002, made advances in the face of political interference.

“I think Judge Harmon will be remembered as an investigating judge that, unlike his predecessors, was able to move the investigation in cases 003 and 004 forward several steps,” Heather Ryan, a tribunal monitor for the Open Society Justice Initiative, said in an email.

Unlike his immediate predecessor Laurent Kasper-Ansermet, Judge Harmon maintained a “professional respect” with National Co-Investigating Judge You Bunleng as he investigated suspects including former Khmer Rouge navy chief Meas Muth, district chief Im Chaem and Ta An, a deputy secretary in the Central Zone, according to Ms. Ryan.

“While this has allowed him to make progress in the investigation, it has not changed the basic fact of refusal of the Cambodian side of the court to cooperate in the investigation, nor has it had any apparent impact on the objection of the Cambodian government to allowing cases 003 and 004 to move to a legal conclusion should the evidence support an indictment and trial of one or more of the accused,” she said.

Prime Minister Hun Sen’s public opposition to cases 003 and 004 was reiterated in February when he stated that an expansion of the tribunal’s scope beyond Case 002—against “Brother Number Two” Nuon Chea and Khmer Rouge head of state Khieu Samphan— would force people to “flee back into the forest.” In 2009, the prime minister predicted that the cases could plunge Cambodia into a civil war that could kill “200,000 to 300,000 people.”

Ms. Ryan said the U.N.’s refusal to publicly address this political interference gives off the impression it is being “hoodwinked” by the Cambodian government.

“Given the ongoing actions of the Cambodian side of the court and the Cambodian government with respect to cases 003 and 004, it is hard to see how the U.N. or the donors could believe that the Cambodians would change their minds at some point and start cooperating with the advancement of the cases,” Ms. Ryan said.

“If the plan of the U.N. is to be satisfied with an investigation and not worry if the Cambodians are able to prevent a trial of any accused that may be indicted, they should start planning for that now and should be honest with the Cambodian people about what they are doing,” she added.

Anne Heindel, co-author of the book “Hybrid Justice: The Extraordinary Chambers in the Courts of Cambodia,” said government interference was foreseen from the outset of the tribunal, which led to rules allowing international investigating judges to proceed without the agreement of their national colleagues.

This has led to political interference becoming an accepted reality of life at the court, according to Ms. Heindel, who is also a legal adviser to the Documentation Center of Cambodia.

“Legally, this has allowed cases 003/004 to be investigated solely by internationals for years in the face of Cambodian resistance,” Ms. Heindel said in an email. “But practically speaking, those rules can’t prevent effective Cambodian obstruction, as can be seen with the failure of the judicial police to enforce the arrest warrants.”

“The rules have also entrenched political interference as an accepted feature of the court, making internationals complacent about—and in some instances arguably complicit in—Cambodian obstruction,” she added.

Ms. Heindel called Judge Harmon an “ideal U.N. appointee” as he was able to push ahead with controversial investigations without distracting from the tribunal’s “centerpiece” Case 002, in which Nuon Chea and Khieu Samphan were sentenced to life in prison last year for crimes against humanity.

“The U.N. has been forthright that its primary aim is for the court to complete Case 002 and avoid any scandals that would disrupt that ‘centerpiece case,’ and Judge Harmon’s quiet tenure helped it keep the lid on case 003/004 political interference allegations that would have taken attention away from the senior leaders trial,” Ms. Heindel said.

Tribunal spokesman Lars Olsen declined to comment on Judge Harmon’s work over the past three years or what legacy he might leave at the court.

Meas Muth’s defense lawyer Michael Karnavas—who last month branded the decision to charge his client as “invalid”—criticized the secrecy and lack of transparency in which Judge Harmon conducted his investigations.

“No doubt Harmon has worked hard. But hard at what?” Mr. Karnavas said.

“In my opinion he has behaved more as a prosecutor, having little if any sense of feel for the role of an investigative judge. For years he denied us access to the case file, has been less than responsive to our submissions, and has run an investigation that lacks transparency,” he said.

With Judge Harmon’s resignation coming amid ignored arrest warrants, the future for cases 003 and 004 remains uncertain. Ms. Heindel said the court’s foreign donors should play a more active role in pushing the U.N. to speak out against political interference.

“I don’t believe the U.N. will withdraw; it and donors have invested too much money and political capital to let the court fail,” she said.

“[The donors] are the ones funding the court, and they should insist on a U.N. investigation into why the arrest warrants haven’t been acted on instead of condoning Cambodian inaction by paying for an impotent fifth international Co-Investigating Judge.”

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