In an order signed at midnight yesterday, the four surviving Khmer Rouge leaders were committed to trial for their roles in a regime that left nearly one in three Cambodians dead.
Brother Number Two Nuon Chea, 84, Foreign Minister Ieng Sary, 84, Social Action Minister Ieng Thirith, 78, and head of state Khieu Samphan, 79, are now to be held to account for their leadership of Democratic Kampuchea, under which as many as 2.2 million Cambodians perished.
Addressing reporters, judges at the Khmer Rouge tribunal said the accused had been indicted on charges of crimes against humanity, war crimes, genocide against Cham Muslims and Vietnamese, and crimes under Cambodian law, sending the court’s most important case to a trial that is likely to begin early next year.
The indictments were the culmination of a three-year investigation that gathered 11,600 pieces of documentary evidence and more than 1,000 interviews with witnesses, civil parties and the suspects themselves.
“I think I can say they do not feel happy, but doubtless they do not feel surprised,” Co-Investigating Judge Marcel Lemonde said of the four accused, speaking at a news conference.
As widely expected, the judge also announced his resignation as of December. Charges in the case against Khmer Rouge secret police chairman Kaing Guek Eav, alias Duch, were dropped, as was anticipated after his July conviction for war crimes and crimes against humanity.
Co-Investigating Judge You Bunleng called the indictments the court’s “second great achievement,” after the Duch verdict.
Unlike Duch, the other four suspects have denied wrongdoing and refused to cooperate.
And where Duch’s nine-month trial dealt primarily with the crimes he committed as commandant of the Khmer Rouge secret police, the second case file encompasses 20 separate crime scenes across the country and a huge array of alleged offenses.
Judge Lemonde described the coming trials as the most complex since the prosecutions of Nazis at Nuremberg in 1945 and 1946.
The judges announced that their investigation had confirmed earlier estimates of death tolls, according to which between 1.7 and 2.2 million people were killed during the Khmer Rouge regime, 800,000 of them violently.
Although the four leaders had different roles in Democratic Kampuchea, with Nuon Chea serving as the communist regime’s chief policy architect, they have been indicted under a mode of liability known as joint criminal enterprise, allowing suspects to be held individually liable for crimes committed as part of a common plan, no matter what their personal role.
Michiel Pestman, one of Nuon Chea’s international defense lawyers, said by telephone from the Netherlands yesterday that his team was planning to appeal against the indictment.
Ieng Sary’s son Ieng Vuth, who is now the deputy governor of Pailin province, had harsh words for the tribunal after hearing of the indictment, suggesting that the outcome of the judicial process was never in doubt.
“It is theater,” he said. “I am not surprised that they will be tried. The case is following [the court’s] scenario very easily.”
Ieng Sary’s American defense lawyer, Michael Karnavas, wrote in an e-mail that his team was also unsurprised by the indictments. He said the Ieng Sary defense had faith in the court, but not in the Office of the Co-Investigating Judges.
“Suffice it to say, the OCIJ has been a disappointment from the very beginning, and we lost faith and confidence in it a very long time ago,” he wrote.
Mr Karnavas pointed in particular to a split Pre-Trial Chamber judgment issued last week in which two international judges said there was “reason to believe” government officials may have threatened witnesses, making fair trials harder to achieve.
Government officials including Prime Minister Hun Sen last year warned that summonses issued by Judge Lemonde, but not Judge Bunleng, to six senior ruling party members, including the presidents of the National Assembly and the Senate, should not be obeyed.
Judge Lemonde alluded yesterday to this controversy when asked if he felt his investigation was complete, saying: “We were unable to obtain everything we wanted. We were unable to hear certain witnesses. This is no scoop. We sometimes had problems in obtaining answers from governments to which we were asking questions.”
Anne Heindel, a legal adviser to the Documentation Center of Cambodia, said the fact that six key witnesses have not been interviewed remained a concern and an “unfortunate distraction.”
“Whether or not they have information that can impede a fair trial is really hard to say from the outside, but it’s concerning because the deck is always somewhat stacked against the defense in these trials just based on resources, and you’d hope they would be able to call the witnesses they need to,” she said.
When Judge Lemonde leaves the court in early December, he is slated to be replaced by a German reserve judge, Siegfried Blunk, who will be forced to grapple with two politically thorny cases opened by UN prosecutors last year.
In an investigation that often resulted in stinging differences of legal opinion with the court’s other offices, Judge Lemonde survived two attempts by defense lawyers to dislodge him and public accusations of misconduct by his own investigators.
“It hasn’t always been easy. This is of public notoriety. It has been sometimes particularly trying on a personal level, I would say,” he said. “But we have done it, and that is obviously today a great satisfaction.”
S-21 survivor Chum Mey said yesterday he was looking forward to the next trial, in which he will participate as a civil party along with 2,122 other victims of the regime who have been admitted by judges.
“Now, I am eagerly awaiting the incoming trial in Case 002, because these people are getting older every day,” he said. “I am afraid that one or two of them will die and the trial will fail.”
The judges addressed concerns yesterday that the court was working too slowly to bring its four ailing and aged defendants to justice, saying they had issued the indictments as fast as possible given the complexity of the case, and that the detainees received regular health checkups.
“I believe that it is important to underscore that this tribunal, with all the handicaps that were its own, with all the difficulties that it had to confront, has been able to organize what, it must be recognized, was not a foregone conclusion, and finally we are able today to rejoice in at last having a document that will allow the staging of trials that Cambodians have awaited for 30 years,” Judge Lemonde added.
(Additional reporting by Douglas Gillison, Saing Soenthrith and Neou Vannarin)