It is now almost certain that none of the Khmer Rouge tribunal’s five suspects will be charged with genocide or crimes against humanity committed against the Khmer Krom, given a ruling published by the court Wednesday.
“For all practical purposes, this decision means that there will be no genocide charges against the Khmer Krom in the second case,” tribunal legal affairs spokesman Lars Olsen said.
The ruling, dated April 27, also revealed that the five judges on the court’s Pre-Trial Chamber were split on the key question of whether a victim can be rejected as a civil party after having already been given a lawyer and access to the proceedings.
In January, the tribunal’s investigators said they would not investigate specific allegations of genocide and crimes against humanity made by civil parties and civil party applicants as these were outside the scope of the investigation opened in 2007 by the court’s co-prosecutors.
They also rejected applications from 33 members of the Khmer Krom and ethnic Vietnamese minorities, saying they were not victims of crimes under investigation.
In the decision published Wednesday, the tribunal’s five-judge Pre-Trial Chamber scrapped an appeal against the investigating judges’ refusal to examine alleged mass executions of Khmer Krom in Pursat and Takeo provinces and genocide of ethnic Vietnamese in Kompong Chhnang province, affirming that these crimes were outside the investigation.
This essentially ends the matter since there are no other pending appeals on the issue, Mr Olsen said.
However, the ruling reinstated six individuals whose civil party applications had been denied by the co-investigating judges, saying they had established personal links to crimes under investigation.
The ruling also revealed that the court’s two co-prosecutors supported the civil party’s allegations but disagreed internally on whether to widen the scope of the investigation to include them. Cambodian Co-Prosecutor Chea Leang apparently believed investigators had already been formally apprised of the facts in question.
Lawyer Mahdev Mohan, who represents Khmer Krom victims in Case 002, criticized the prosecutors Wednesday for never stepping forward to remedy the confusion they had created.
He urged them to “do the right thing” and immediately file a supplementary submission.
“If the [office of the co-prosecutors] were to once again remain silent instead of filing a supplementary submission, our clients would find the ECCC’s process absurd, even if it were to be couched on the grounds of practical expediency and legal niceties,” he wrote in an e-mail.
International Co-Prosecutor Andrew Cayley declined to comment Wednesday on whether prosecutors would indeed file a submission.
In the decision published Wednesday, the judges said they were aware that the court’s investigations may not reflect all of Cambodia’s suffering under Democratic Kampuchea.
“The Pre-Trial Chamber is cognizant of the fact that the current scope of the investigation […] may not reflect the full dimension of crimes committed by the Khmer Rouge against victims of Vietnamese origin during the relevant period,” the judges wrote.
However, they said they were unable to form the necessary super-majority of four judges on the question of whether eight people who had once been told they were admitted as civil parties could legally be told at a later date that they were no longer civil parties.
Three pretrial judges, Ney Thol, Catherine Marchi-Uhel and Huot Vuthy said the acceptances were only provisional and that the applicants had been warned of this.
But the chamber’s president, Prak Kimsan, and Judge Rowan Downing, said the law did not allow the court’s co-investigating judges to admit civil parties only to reject them later.
“It is not for a court or judges, without any authorization, to change stated procedures as a matter of expediency or for any other unauthorized reason,” they wrote. “This is fundamentally procedurally unfair.”
As the judges could not form a majority, the co-investigating judges’ rejection of eight civil party applications will be “undisturbed,” they wrote.
