The Khmer Rouge tribunal’s investigating judges defended themselves yesterday against charges leveled by two UN judges that they had backdated and secretly altered key documents.
Pre-Trial Chamber Judges Katinka Lahuis and Rowan Downing issued a scathing minority opinion on Tuesday accusing the investigating judges, Siegfried Blunk and You Bunleng, of a number of serious professional lapses, and skewering their secretive approach to investigating the court’s third case, which is opposed by the government.
Among other complaints, Judges Lahuis and Downing said the investigating judges had mishandled the civil party application of New Zealander Rob Hamill in Case 003. The judges rejected his claim almost immediately after it was filed in April but mistakenly referred to Case 004 when writing their rejection order. In July, they tried to correct the error—improperly, said Judges Lahuis and Downing, who accused them of backdating the rejection to April and failing to inform anyone of the changes.
But Judges Bunleng and Blunk—the latter of whom resigned this month but will not formally depart the court until Oct 31—released a slew of documents yesterday to prove they had committed no wrongdoing.
They said in a statement that it was standard court practice to “retain the date of the issuance of [an] initial order while simply rectifying points or pages that need to be corrected.”
When asked if this was indeed a common practice at the court, the tribunal’s legal affairs spokesman, Lars Olsen, said he could not comment on a matter “where some judges seemingly have different opinions.”
Asked if he could provide examples of other times when judges had modified a document but retained the original date, he furnished six altered documents from all three of the court’s chambers.
Most changes were minor, but in two cases the modifications were more extensive than those made by Judges Blunk and Bunleng to Mr Hamill’s rejection order. In February 2011, the Pre-Trial Chamber added nearly an entire paragraph to a decision originally made in January. That same month, the appeal brief of Khmer Rouge jailer Kaing Guek Eav, alias Duch, was edited throughout due to numerous minor translation errors.
In no case, however, did the error take as long to correct as it did in Mr Hamill’s rejection.
Judges Lahuis and Downing also complained that the investigating judges had not informed parties to the case about the modifications. A document released by the investigating judges shows they sent out a notification on July 7 to the co-prosecutors. But there does not appear to be any proof Mr Hamill ever received the modified version of his rejection, which was sent to him by courier service in New Zealand.
` In a statement issued Tuesday, Mr Hamill and his lawyers claimed they had never received the document, and said the lapse was emblematic of the co-investigating judges’ shoddy treatment of victims. Indeed, Mr Hamill’s appeal against his rejection was filed in May—two months before the rejection order was edited—and refers extensively to the original, unmodified document.
In response, the co-investigating judges released documents yesterday from the courier service TNT, including a consignment tracker and a photocopied mailing label. But although the tracker says the modified rejection was “delivered,” there is no signature by Mr Hamill acknowledging receipt—an irregularity Judges Lahuis and Downing highlighted in a lengthy footnote to their decision.
In yesterday’s statement, Judges Blunk and Bunleng did not address most of the criticisms leveled by their colleagues, including that they had improperly refused to recognize Mr Hamill’s foreign lawyer and that they had been responsible for “significant unexplained delays in processing documents” related to Case 003.
Mr Hamill’s rejection itself was released in full for the first time yesterday, and appears to buttress the claims of human rights groups and victims’ advocates that he was improperly barred from becoming a civil party at the Khmer Rouge tribunal. Judges Blunk and Bunleng wrote in the order that Mr Hamill had not proved “causality” between the murder of his brother at the Khmer Rouge S-21 prison and his own personal suffering.
Mr Hamill is currently a civil party in both cases 001 and 002, but the judges said his brother’s death had not caused him enough direct suffering to allow him to join Case 003.
They said family members of Khmer Rouge victims could only become civil parties if they had been harmed “in intervening to assist victims, which is not the case of the applicant, who two years after the death of his brother in Cambodia learned about it from a newspaper in New Zealand.”