Two international judges at the Khmer Rouge tribunal on Thursday became the first at the court to acknowledge the potential for outside interference, saying the government may have illegally acted to deny the tribunal necessary witness testimony and made fair trials less likely.
The minority opinion cast a pall over investigations that are imminently expected to result in the indictments of the former regime’s surviving leaders. However, as in previous decisions on politically sensitive matters, Cambodian judges took an apparently pro-government stance, finding simply that a government spokesman’s public remarks on witness testimony were inoffensive.
The split decision, at least the third by the Pre-Trial Chamber, meant that the bench was unable to rule and that no action could therefore be taken on defense allegations made last year that Prime Minister Hun Sen and other Cambodian officials had warned high-level witnesses not to cooperate with the tribunal.
Almost a year ago, six senior Cambodian lawmakers and government officials—including the presidents of the Senate and National Assembly and the ministers of finance and foreign affairs—flouted summonses that were issued at the request of defense lawyers by French Co-Investigating Judge Marcel Lemonde.
Cambodian Co-Investigating Judge You Bunleng refused to sign the summonses, saying they were unnecessary. Government officials, including Mr Hun Sen, reacted harshly, saying the summonses should not be obeyed and were procedurally invalid. The remarks caused defense lawyers to accuse the government of interfering in the administration of justice, resulting in Thursday’s decision.
With the split decision, Cambodian judicial officers, from the prosecution to the Office of the Co-Investigating Judges and the Pre-Trial Chamber, have uniformly abstained or hewed to the government position, feeding the widespread perception that the court’s Cambodian side is unable or unwilling to performs acts displeasing to the government.
Reach Sambath, the court’s chief spokesman, declined to comment on the decision but said yesterday that all Cambodian jurists were independent. Lars Olsen, legal communications officer for the tribunal, stressed that the international judges had not found that contempt of court had occurred, merely that sufficient grounds existed to begin an investigation.
“No judges have said that there is reason to annul the investigation,” Mr Larsen said, noting that the matter was not a clear-cut disagreement along national lines as the Cambodian pretrial judges appeared to have sided with Judge Lemonde of France.
“It seems that both the Cambodian and international judges of the [Office of the Co-Investigating Judges] agree with the national judges of the [Pre-Trial Chamber] that there is a question of what threshold to apply” in reaching their conclusions, he said.
In an impassioned minority opinion, Judge Catherine Marchi-Uhel of France and Judge Rowan Downing of Australia said fair trials might now be less likely as a result of possible interference by the government.
The two judges said the “single most important fact” was a comment made to the Agence France-Presse news agency in October by government spokesman and Information Minister Khieu Kanharith, who was quoted as saying: “Except for individuals who volunteer to go, the government’s position is no to this even if they are called as witnesses.”
Foreigners at work at the tribunal “can pack their clothes and return home” if they do not accept this, Mr Kanharith said.
For Judges Marchi-Uhel and Downing, such remarks were beyond the pale.
“The comment by Khieu Kanharith satisfies us that there is a reason to believe he, or those he speaks on behalf of, may have knowingly and willfully attempted to threaten or intimidate the six officials,” they wrote.
“Preventing testimony from witnesses that have been deemed conducive to ascertaining the truth may infringe upon the fairness of the trial,” the judges wrote. “It is imperative that this chamber do its utmost to ensure that the charged persons are provided with a fair trial.”
The two judges also reserved strong words for the court’s co-investigating judges, who Judges Marchi-Uhel and Downing said appeared to have disregarded earlier instructions and had shown a “repeated failure” to act on the defense allegations.
Judges Downing and Marchi-Uhel appeared irked in particular by a June ruling from the co-investigating judges that said they would not investigate charges of political interference but proposed instead that the Pre-Trial Chamber do so.
“This deferral of responsibility is unsatisfactory,” Judges Marchi-Uhel and Downing wrote, noting that the Office of the Co-Investigating Judges is the tribunal’s investigative body.
“In our view, the most appropriate course of action would have been for the Pre-Trial Chamber to conduct the investigation,” Judges Marchi-Uhel and Downing wrote, saying that the co-investigating judges “have repeatedly refused to investigate this matter and may not, in these circumstances, be the body most suitable to conduct an investigation into these allegations of interference.”
Mr Kanharith, the government spokesman, said in an e-mail on Sunday that the government did not believe it had the rightful power to issue instructions to the tribunal.
“The government has no say about how the court must act, but one point is not negotiable: follow the protocol implemented by the [government] and the UN,” he wrote, adding that he stood by his remarks, which he said he had privately explained to the court.
“Concerning my statement there is no change but for myself, when requested by the court, I had submitted a written response to it. This is as my personal decision not as a member of a government.”
In a briefer majority opinion attached to Thursday’s ruling, Judges Prak Kimsan, Ney Thol and Huot Vuthy discussed only the question of Mr Kanharith’s remarks, which they said “cannot obstruct, prevent or threaten directly or even indirectly the appearance of the six high-ranking officials before this court.”
Mr Kanharith’s words contained no direct orders to the witnesses, who are of a higher station than he is, the three judges said.
“According to hierarchy of ministers, ministers of lower status, such as Mr Khieu Kanharith, are in principle not entitled to order or coerce those of higher status to follow the former’s orders,” the wrote.
“Even if the [government] spokesperson Mr Khieu Kanharith did make the statements in question, there are no written documents indicating that these six high-ranking witnesses will not come and give their testimony because they are intimidated by the statements of the [government] spokesperson.”
Michiel Pestman, a Dutch defense lawyer for Nuon Chea, said yesterday that he was dismayed that the Cambodian judges’ view of fair trial rights had diverged so sharply from those of the international judges.
“The big question is whether the ECCC is going to deliver a fair international trial or another Cambodian trial in which the outcome is known beforehand,” he said yesterday by telephone from the Netherlands. “This whole thing is rather depressing in its predictability.”