A panel of judges at the Khmer Rouge tribunal has been unable to resolve a disagreement over whether additional Democratic Kampuchea suspects should be pursued by the court, meaning that UN prosecutors may now request new investigations that Cambodian prosecutors have opposed.
According to a split decision on Aug 18, which was published yesterday, the five-judge Pre-Trial Chamber voted along national lines, with the chamber’s three Cambodian judges, President Prak Kimsan, Ney Thol and Huot Vuthy, unable to persuade either of the two international judges, Rowan Downing and Katinka Lahuis, to form the four-person supermajority required to block additional investigations of Khmer Rouge regime suspects, which UN prosecutors sought in November.
Acting International Co-Prosecutor William Smith said Wednesday that he intended to forward two new sets of allegations against additional suspects, known as introductory submissions, to the court’s Co-Investigating Judges “as soon as possible.”
To protect both the fair-trial rights of any new suspects and the integrity of the investigations, the names of those identified by prosecutors are closely guarded secrets until after their arrests.
However, sources familiar with the preliminary investigations led by former international Co-Prosecutor Robert Petit, who resigned on Tuesday, say he identified a total of six further suspects, one of whom, former Democratic Kampuchea Commerce Minister Van Rith, died in November.
According to a survey published in March by the Documentation Center of Cambodia, a clear majority of the Cambodian public, or 57 percent, favor additional Khmer Rouge regime suspect being put on trial.
Only the second split decision to be handed down by the Pre-Trial Chamber in two years, the new ruling nevertheless appears to foreshadow the possibility of continued acrimony over the subject of further prosecutions by the tribunal and which Prime Minister Hun Sen said in March could provoke a return to civil war.
In a redacted statement of legal reasoning signed on Aug 17 regarding the disagreement on extending the list of suspects at the tribunal, the three Cambodian judges made no reference to Cambodian Prosecutor Chea Leang’s concerns of renewed conflict with former elements of the Khmer Rouge movement, including her concern about the possibility that additional prosecutions by the tribunal could undermine the allegiance of former Khmer Rouge troops defending the Preah Vihear temple.
However, they agreed with Ms Leang’s accusations, made privately in May, that UN prosecutors at the tribunal had illegally carried out investigations of additional Khmer Rouge regime suspects without her knowledge, a point that could invite a similar disagreement over the prosecutions to arise among the co-investigating judges.
Furthermore, the three Cambodian judges also found that all of the criminal allegations developed by the UN prosecutors in regard to the additional suspects concerned facts that were already part of the court’s current investigation into crimes occurring nationwide, making the new allegations unnecessary.
“The international co-prosecutor’s preliminary investigation without prior notification or discussion in terms of co-operation with the national co-prosecutor is a violation of the ECCC law, agreement and internal rules,” the Cambodian judges wrote.
“The consequences of such violation may exist in the proceedings that follow and shall not be taken into consideration in relation to the disagreement,” they wrote.
The co-investigating judges, You Bunleng and Marcel Lemonde, must now decide whether the prosecutors’ evidence against the new suspects merits charges, arrests and indictments.
The Pre-Trial Chamber is also empowered to resolve disagreements among the co-investigating judges.
In their own reasoning, signed 11 days earlier than their Cambodian counterparts on Aug 6, Mr Downing and Ms Lahuis found that Ms Leang’s concerns about the legality of the UN investigation had been raised as an afterthought and so did not consider them. They also said that the co-prosecutors need not act in concert during preliminary investigations.
The two international judges found that, while some of the matters now raised in the UN prosecutors’ preliminary investigation may overlap with the judicial investigation already begun in 2007, the UN prosecutors had clearly identified new facts.
“Once the conclusion is drawn that there is ‘reason to believe that crimes within the jurisdiction of the ECCC have been committed,’ then the co-prosecutors are obliged to open a judicial investigation,” wrote Ms Lahuis and Mr Downing.
Mr Smith, the new co-prosecutor, declined yesterday to comment on Ms Leang’s allegations of illegal conduct by international prosecutors, or whether he had personally said “sorry” to her in November for allegedly keeping Cambodian prosecutors in the dark, as claimed in yesterday’s published ruling.
“Now that the declaration has been made, analyzing line by line the accuracy of individual factual assertions has little value. We are now concentrating on moving the case forward,” Mr Smith wrote in an e-mail.
Ms Leang could not be reached. However, Mr Smith said he believed “relations have strengthened” in the nine months since the disagreement resolution process began.
As all former Khmer Rouge Cabinet members are now either dead or detained by the court, speculation has focused on Meah Mut, secretary of the Khmer Rouge Central Committee’s military Division 164, which included the navy, and Sou Met, secretary of Division 502, which governed the heavily purged Khmer Rouge air force.
Both men were identified in a 2001 book by the late lawyer Brian Tittemore and historian Stephen Heder as having been directly involved in the arrest and transfer of their purged subordinates to Tuol Sleng prison. The remaining three suspects have reportedly held government and military positions as recently as the period of time after the creation of the tribunal in 2006.
The decision published yesterday contained a history of prosecutors’ internal discussions, which reveal that Ms Leang has consistently opposed the prosecution of more than five Khmer Rouge suspects by the tribunal.
On the day in 2007 that prosecutors were to forward allegations concerning six additional suspects, Ms Leang found that evidence against the sixth “did not satisfy the ‘reason to believe’ criterion,” resulting in a reduction to five suspects, according to the Cambodian judges.
That sixth individual was apparently Mr Rith, the deceased former Commerce Minister of Democratic Kampuchea, whose name was again advanced by Mr Petit just prior to his death in 2008. Two other suspects, whose names are redacted from yesterday’s document, also died in July 2006 and early 2008, according to the Cambodian judges’ factual summary.
As Cambodian officials, including Mr Hun Sen, have said they fear upsetting the negotiated surrender of the Khmer Rouge, the number of people to be prosecuted by the tribunal has long preoccupied the court and its international architects.
According to notes made by US negotiators in 1999, which were seen yesterday, US negotiators even considered agreeing that the court limit its personal jurisdiction to six or seven people. The court’s legal instruments, however, contain no such provision to stick to a set limit on prosecutions.
DC-Cam Director Youk Chhang said that the meaning of Pre-Trial Chamber’s split decision is not yet apparent.
“It remains to be seen that this is in the interest of the victims in general. How long will it take to reach the indictments?” he asked.
“Immediately, you have to see that this is a test of independence.”
(Additional reporting by Prak Chan Thul)