When former Khmer Rouge official Yim Tith, better known as Ta Tith, was charged at the Khmer Rouge tribunal with crimes including genocide earlier this month, he became the last remaining suspect in the government-opposed cases 003 and 004 to be charged.
Five days later, the regime’s navy chief, Meas Muth, finally presented himself to face charges of crimes against humanity for his alleged role in atrocities committed under Pol Pot.
– News Analysis
In the same week, the court announced that its investigation into former district chief Im Chaem had wrapped up, paving the way for the tribunal’s co-investigating judges to either issue an indictment or dismiss the charges.
The flurry of action in the final month of 2015 rounded off a year of unexpected progress in cases 003 and 004, which were opened for investigation more than six years ago.
However, controversy has continued to cast a shadow over the cases, which Prime Minister Hun Sen has repeatedly and vehemently criticized, warning that trials beyond Case 002 risk plunging Cambodia back into civil war.
In July, Mark Harmon stepped down as the court’s international co-investigating judge and was replaced by Michael Bohlander. Throughout the transition, judicial police continued to ignore arrest warrants issued by Judge Harmon months earlier for Meas Muth and Im Chaem.
Pressed on their refusal to execute the arrest warrant for Meas Muth—which was issued in December 2014 and dropped when he traveled to Battambang City to face the charges this month—Mao Chandara, the tribunal’s chief of police, said at the time that officials would conduct public opinion surveys before taking action.
Court monitors said the government was violating its agreement with the U.N.
Despite the long-delayed action in the cases this year, tribunal experts remain skeptical that the latest steps will eventually see Meas Muth, Im Chaem, Ta An (also known as Ao An) or Ta Tith brought to trial.
Heather Ryan, a monitor with the Open Society Justice Initiative, said that despite the sincere effort by Judge Harmon and now Judge Bohlander to complete their job, the U.N. was still failing to call out the government for continued interference in the cases.
“The international co-investigating judges obviously want to complete a competent investigation. Regardless of whether the cases move forward to trial—if indictments are issued—their job is the investigation,” Ms. Ryan said in an email.
“When there is an obvious violation of the Agreement, as there is by the refusal of the Cambodian Judicial Police to enforce arrest warrants, the UN best serves Cambodians and the cause of justice by publicly and strongly addressing the issue,” she said.
“Public silence by the UN under such circumstances entrenches impunity and undermines the credibility of the entire court—including its considerable accomplishments.”
In 2010, S-21 prison chief Kaing Guek Eav, better known as Duch, was found guilty of crimes against humanity. Khmer Rouge Brother Number Two Nuon Chea and head-of-state Khieu Samphan were also found guilty of crimes against humanity in the first phase of their trial last year. Both remain on trial for crimes including genocide in the second phase of Case 002.
Panhavuth Long, a monitor with the Cambodian Justice Initiative, said that despite the latest advancements by the international judges in cases 003 and 004, the cases still had no chance of being fully prosecuted.
“I think that the U.N. and the tribunal as a whole, they just try to finish the investigation as soon as possible because Case 003 and Case 004 has been going for almost seven years,” without serious consideration for the outcome they hope to achieve, Mr. Long said.
“I don’t think there is a possibility where there will be one closing order and I don’t think there is a possibility that Case 003 and Case 004 can go forward to trial…because of the government opposition and because the U.N. does not address properly the noncooperation from the government side.”
John Ciorciari, a scholar at the University of Michigan’s Gerald R. Ford School of Public Policy who has written extensively about the Khmer Rouge tribunal, said the U.N. risked appearing complicit in the interference if it continued to remain publicly silent on the issue.
“Senior UN officials should start by naming the problem,” Mr. Ciorciari said in an email.
“For years, officials in UN headquarters and key donors states have tip-toed around blatant Cambodian political interference. A bolder public position on the issue won’t necessarily elicit Cambodian government cooperation, but at least it will reduce the appearance of near-complicity by the United Nations.”
David Scheffer, the U.N.’s special expert on the tribunal, defended its role, claiming U.N. officials had taken “formal steps” throughout the process to raise their concerns over government interference at the court.
“As the Secretary-General’s current report to the General Assembly makes clear, the United Nations has taken formal steps to advance concerns with the Royal Government as to compliance with the ECCC’s legal framework over the course of this year,” Mr. Scheffer said in an email.
“It is for the ECCC’s judicial authorities to assess the appropriate next steps in each case, within the ECCC’s legal framework.”
Even if the government interference continued and the cases failed to progress toward indictments, arrests or trials, Ms. Ryan said, the conclusion of investigations could still contribute important information to the historical record of crimes committed by the Khmer Rouge.
“But this can occur only if a credible way to reveal some of the investigative information can be found, while still protecting witnesses and defense rights,” she said.
“Nonetheless, completed and competent investigations that are not allowed to proceed to a credible conclusion represent a deep and troubling failure by the court—caused by political interference.”