When Judge Marcel Lemonde took office at the Khmer Rouge tribunal in 2006, he announced a policy of openness, appearing at public forums in remote corners of the country, meeting with NGO workers and taking reporters’ calls on his personal telephone.
Though lawyers and court monitors would complain in the ensuing years of an uneven flow of information from his office, Judge Lemonde, the senior-most UN officer in charge of the court’s broad-based investigations, said that he remained committed to transparency.
“If we are misunderstood, if the general public doesn’t understand our mission, we will fail,” he said in his first interview here.
Three months ago, Judge Lemonde stepped down and was replaced by Judge Siegfried Blunk of Germany, who has taken a very different approach.
Though the future of the Khmer Rouge tribunal may in large part rest in his hands, he has yet to appear at a single news conference or to grant any interviews.
Judge Blunk in December ag-reed to receive questions in writing from The Daily, but after questions were submitted, he said through the court’s public affairs office that he was too busy to answer them.
“We have yet to speak with Judge Blunk despite several requests on our part to do so,” Clair Duffy, a tribunal monitor at the Open Society Justice Initiative, said in an e-mail last week. “As far as we’re aware, he hasn’t spoken with any NGO representatives.”
But Judge Blunk must now decide a key question: Will he or will he not proceed with investigations opened 18 months ago by UN prosecutors over the objections of Prime Minister Hun Sen?
In full view of the court’s financial backers, nations that are also Cambodia’s allies, the government has come down on the tribunal in dramatic fashion over UN officials’ decision to pursue four men and a woman for alleged Khmer Rouge-era crimes that UN prosecutors say constituted genocide, war crimes and crimes against humanity with many hundreds of thousands of victims.
Amid accusations of government influence, the tribunal’s Cambodian judges have supported the government’s point of view and opposed the two new cases.
For donors who already appeared reluctant last year to continue supporting the tribunal, the fact that its newest undertakings also upset Cambodian authorities is hardly a bonus. Money, time and patience may soon run out for cases 003 and 004.
Key, then, is the question of whether Judge Blunk will brave official antagonism and seek to investigate these cases, which observers have said will be a test of whether the court is either an independent body or a political animal and whether its trials will amount to a credible effort to deliver accountability for the Khmer Rouge era.
Judge You Bunleng, Judge Blunk’s Cambodian counterpart, last year initially backed out of participating in the new investigations after word of his participation became public.
Prior to his departure, Judge Lemonde acted solo to begin “crime base” investigations to review the basic circumstances of prosecutors’ allegations without considering charges or arrests.
But in a statement last month, the co-investigating judges appeared to say that, a year and half since cases 003 and 004 were opened, they had put a stop even to this.
Judge Bunleng may now be participating in a review of existing documents, but “at this stage, no field investigation is being conducted,” they said in a statement that bore neither judge’s name.
Ms Duffy of OSJI said last week that the tribunal was tasked with staging trials that were representative of Khmer Rouge atrocities, something it might fail to do if, as the government insists, only five suspects are ever prosecuted.
“Stopping at those prosecutions risks leaving a legacy that only tells part of the story,” she said. “Each and every decision taken by both co-investigating judges in relation to cases 003/004 is therefore crucial to the legacy of this court. Judge Blunk bears his fair share of that responsibility.”
A former prosecutor, Judge Blunk began a 30-year judicial career in Munich, Germany, and then volunteered to hear felony cases in the former East Germany after the German reunification in 1990, according to a brief personal description he provided to the Khmer Rouge tribunal in 2008.
With a doctoral dissertation in international law, Judge Blunk was named to the Special Panels for Serious Crimes in East Timor, where he served from 2003 to 2005, presiding over 14 crimes against humanity trials and serving on panels for other cases.
Far more than the Khmer Rouge tribunal, the Serious Crimes process was, by all accounts, an environment subject to political constraints, limited resources and outside pressures.
Created in 2000 by the UN Transitional Administration in East Timor, the court was tasked with administering justice in the roughly 1,400 cases of murder committed in 1999 by pro-Indonesian militias to suppress the Timorese call for independence.
But as the organ of a UN mission, the SPSC received few resources and little support from the outside world. Prosecutors filed 95 indictments against 391 suspects, the vast majority of whom were in Indonesia, where the government refused to cooperate. In the end, the court tried just 87 low-level offenders, convicting 84 but failing to prosecute their superiors.
According to David Cohen, who as director of the Berkeley War Crimes Studies Center in 2006 published a lengthy study of the SPSC, the court was “so deeply flawed from the beginning” that, despite the best efforts of its officers to improve it, “egregious problems remained until the very end,” calling into question the “basic fairness” of a significant number of its trials.
According to Mr Cohen, judgments were often unreasoned and did not follow basic standards for drafting. Individuals were convicted of crimes for which they had not been charged and so could not oppose at trial. Defense lawyers were inexperienced, untrained and unprepared, sometimes causing prosecutors to cross the aisle during recess to advise them on how to proceed.
The UN Security Council mandated the closure of the UN mission of assistance by May 20, 2005, requiring all trials to be concluded by that date. In his personal statement to the Khmer Rouge tribunal, Judge Blunk said that as a result “priority cases had to be identified and proceedings speeded up.”
According to Mr Cohen, this unfairly put defendants under pressure to accept plea bargains in order to shorten the length of proceedings. Some defense lawyers were pressured by judges at trial, who said the closure deadline meant there was little time for cross-examination.
Judge Blunk, according to Mr Cohen, was one of two German judges at the court who “expressed concerns about the lack of cooperation by defense counsel” in meeting the UN deadline and “expressed specific frustration” with lengthy defense cross-examinations and objections, which caused difficulties for the court in complying with the instructions from New York.
Mr Cohen was in particular critical of the trial of Victor Manuel Alves, a pro-Independence militia leader indicted for the murder of Antonio Miguel Pacheco, whom Alves shot in the back of the head in front a crowd of witnesses during an argument on Atauro Island off the cost of Dili in September 1999.
The Alves case, over which Judge Blunk presided, was “legendary” among local jurists “because of the strange turn that the trial took,” the report said.
According to Mr Cohen, participants at trial said the accused was wealthy, well-connected and regarded as a hero for killing an anti-independence militia leader. An informant with direct knowledge cited by Mr Cohen claimed that an unnamed judge among the three on the panel had approached the prosecution asking that the charges be dropped “because of security concerns” involving friends of the defendant.
The courtroom itself was vulnerable, with unstable electricity and witnesses and judges left virtually unguarded. The public entered freely without weapons checks, sometimes using the courthouse faucets to wash in the morning.
At trial, the report said, all six eyewitnesses appeared to succumb to outside pressure, changing their stories and leaving Judge Blunk and his fellow panelists to acquit the accused of murder but convict him of “causing death by negligence.”
The judges had accepted what Mr Cohen described as the “preposterous” theory that Alves had shot Pacheco by placing the barrel of a rifle on his own shoulder as he walked away, unintentionally allowing the fatal shot to be fired backward.
The 2004 judgment, though “lucid and well-organized,” contained a discussion of legal findings only three lines long and was without “any reasoning or analysis whatsoever,” Mr Cohen wrote.
Several former SPSC trial attorneys and colleagues of Judge Blunk were reluctant to comment for this article.
But Siri Frigaard, a Norwegian prosecutor who in 2002 became the Special Panels’ deputy prosecutor-general for serious crimes, defended the tribunal’s achievements overall, saying they had to be viewed in light of the limitations placed on it.
Ms Frigaard, currently chief public prosecutor at Norway’s National Authority for Prosecution of Organized and Other Serious Crimes, said she had left the Special Panels in 2003, overlapping with Judge Blunk by only a few weeks.
After her arrival, the court received some support, she said. “Then suddenly, we were told to start downsizing…and I was against it,” she said by telephone from Oslo, Norway.
“If you are looking at the resources the court had, I think they did a great job because they had few resources and the resources came only at the end,” said Ms Frigaard. “If you’re looking at it from an idealistic point of view, it was not such a success.”
“I think ultimately that the people who were convicted up until 2003 had a fair trial,” she said, noting that by the time of her departure only two cases had been heard.
“I can’t say that there was an unfair trial, but we were afraid of it,” she said.