Braving the prime minister’s warnings of war and death, UN prosecutors on Monday opened two new investigations that identify five more former Khmer Rouge members suspected of genocide, war crimes, crimes against humanity and violations of domestic Cambodian law.
The new cases, the last that will be brought against the former Khmer Rouge regime, bring the total number of suspects investigated by the tribunal to 10. Five suspects are already in the court’s custody: Khmer Rouge secret police chairman Kaing Guek Eav, alias Duch, 66, Brother Number Two Nuon Chea, 83, Foreign Minister Ieng Sary, 83, State Presidium Chairman Khieu Samphan, 78, and Social Action Minister Ieng Thirith, 77.
The tribunal’s financial backers said yesterday that they stood behind the principle of judicial independence and democracy. But they hesitated to respond directly to Monday’s remarks by Prime Minister Hun Sen, who expressed his displeasure with the court’s widening net of criminal suspicions, saying they may provoke a new civil war.
As Hun Sen spoke on Monday, the UN prosecutors’ new allegations, contained in two documents known as introductory submissions, were filed with the court’s Office of the Co-Investigating Judges.
The court announced last week that Cambodian judges in the tribunal’s Pre-Trial Chambers lacked the majority required to prevent the new prosecutions, which were opposed by Cambodian Co-Prosecutor Chea Leang.
The new UN submissions announced yesterday were developed over a year of preliminary investigations begun as a result of a confidential report prepared by the Documentation Center of Cambodia. The court did not release the names of the five Khmer Rouge regime suspects named in the introductory submissions.
In a statement to the media yesterday, Acting International Co-Prosecutor William Smith said the prosecution’s second introductory submission had identified eight instances of alleged murder, torture, unlawful detention, forced labor and persecution constituting war crimes, crimes against humanity and violations of Cambodia’s 1956 penal code, which was in effect when the Khmer Rouge took power in 1975.
A third introductory submission describes 32 instances of alleged murder, torture, unlawful detention, forced labor and persecution constituting crimes against humanity, genocide and violations of the former penal code.
“The acting international co-prosecutor has no plans to conduct any further preliminary investigations into additional suspects at the ECCC,” the statement said.
Like the prosecution’s previous allegations against the five suspects currently in custody, the new submissions allege that the crimes occurred as part of a joint criminal enterprise, a form of liability allowing suspects to be held responsible for crimes carried out by fellow conspirators.
The court has yet to rule on the legality of joint criminal enterprise, which critics liken in some cases to guilt by association.
German Ambassador Frank Mann said yesterday that judicial independence is “one of the fundamental principles of jurisdiction to which all democratic states subscribe.”
“I see no reason to believe that the ECCC will not be in a position to fulfill the mandate given to it in the agreement between the United Nations and the royal government of Cambodia, namely to bring to trial senior leaders of Democratic Kampuchea and those who were most responsible for the crimes,” he wrote in an e-mail.
Rafael Dochao Moreno, charge d’affaires for the European Commission in Phnom Penh, also said European nations believe in the separation of powers.
“In any European country, the legislative, judicial and executive powers are separate and this is a principle of democracy,” he said, declining to comment directly on the prime minister’s remarks.
France and Australia both declined to make any comment.
However, David Scheffer, former US Ambassador at large for war crimes issues and an architect of the procedure the tribunal used to resolve the prosecutors’ disagreement, said that the government’s expressed fears of renewed civil war risked undermining the court.
“It would be counter-intuitive and a betrayal of the entire exercise behind this court to cripple its operations on the speculation of a few individuals, however highly placed they may be, that bringing several more aging Khmer Rouge leaders to justice will tear apart Cambodian society,” Mr Scheffer wrote in an e-mail on Tuesday.
“I know of no polling and no credible assessment of popular opinion in Cambodia that suggests the remotest possibility of an outbreak of civil war if these few individuals ultimately are tried by the ECCC,” he added.
“Of course, if influential leaders keep predicting civil war, such an outcome risks becoming a self-fulfilling prophecy. I hope reason will prevail and the court can proceed with its important work in a professional manner.”