A day before the closing of the Khmer Rouge tribunal’s most recent investigation, Co-Investigating Judges You Bunleng and Marcel Lemonde ruled last month that summoning the testimony of Prime Minister Hun Sen was unnecessary, according to a ruling filed last week.
However, in the Jan 13 decision the judges revealed that in June they had formally but secretly disagreed on the need to summon former King Norodom Sihanouk and six senior CPP officials who have since refused to cooperate with the court.
Lawyers for former Brother Number Two Nuon Chea on Monday gave formal notice of their intent to appeal against the ruling, which said their requests for the witness testimony could not be fulfilled.
In a separate note of Jan 11, Judge Lemonde also said the possibility of forcing the witnesses to testify was best left for the consideration of the five-judge Trial Chamber, which may be called on to decide the innocence of the court’s five detainees.
Records also filed Jan 11 describe the hapless adventures of a court clerk who, like members of the news media, was unsuccessful in gaining the witnesses’ attention.
The judges’ disagreement drew clear parallels to the 2008 disagreement between the court’s co-prosecutors, who differed over the need for additional prosecutions, which are opposed by Mr Hun Sen.
In both cases, government officials, including Mr Hun Sen, publicly expressed opposition while Cambodian court officials resisted venturing into politically sensitive territory, arguing that this was unjustified.
Unlike the co-prosecutors, however, Judges Lemonde and Bunleng did not seek the arbitration of the court’s Pre-Trial Chamber, allowing Judge Lemonde to seek the testimony without Judge Bunleng’s cooperation.
After the government blocked written requests seeking retired King Sihanouk’s testimony in July, Judge Lemonde in September formally requested the testimony of Foreign Minister Hor Namhong concerning experiences at the Boeng Trabek prison camp and Finance Minister Keat Chhon, concerning his supposed relations with former Khmer Rouge Foreign Minister Ieng Sary.
Judge Lemonde also sought the testimony of Senate President Chea Sim in his capacity as former chief of Ponhea Krek district in the East Zone’s Sector 20, National Assembly President Heng Samrin, who was commander of the Khmer Rouge military’s 4th Division in the East Zone, Senator Ouk Bunchhoeun, under secretary of Sector 21 in the East Zone, and Senator Sim Ka, former chief of the Sector 20 office in the East Zone.
As Judge Lemonde indicated four of the seven witnesses have knowledge of the East Zone, the witness requests appeared designed to elicit specific information concerning the former Khmer Rouge administrative region.
Over 1,000 people in the zone were purged and killed by the Khmer Rouge secret police, who followed strings of forced confessions beginning with those of military personnel arrested in 1976, according to historian David Chandler.
However Judges Lemonde and Bunleng found Mr Hun Sen was unlikely to have information about the 1978 purge as he had already defected from the Khmer Rouge in mid-1977.
Judge Bunleng said he opposed the testimony sought by Judge Lemonde because he found the witnesses “were unlikely to provide any additional evidence” on top of the testimony of 725 other witnesses, the statements of the five suspects and copious documentation.
Interviewing witnesses with no end in sight “could result in an absurd situation and cause an unwarranted delay in the proceedings,” according to Judge Bunleng.
In a separate note, Judge Lemonde said the testimony was necessary and lamented the fact that lawmakers who had voted for the establishment of the tribunal would not cooperate with it.
Seeking to coerce their testimony would be both legally questionable and prohibitively difficult, he added.
“The unavoidable observation is that the application of such coercive measures would be confronted by considerable practical difficulties which, under the best of scenarios, would prolong the end of the investigation by unacceptable proportions,” Judge Lemonde wrote.
Youk Chhang, executive director of the Documentation Center of Cambodia, said he was concerned the court did not appear to have treated all witnesses fairly, as ordinary witnesses had been told they risked coercive measures if they failed to cooperate.
Publicizing the summonses of high-ranking witnesses may have been an invitation to confrontation, he added.
“The court understands the politics behind this. Why make it public? That creates resistance,” he said.