A year ago today, Cambodia’s nightmare became a question of law.
A team of freshly appointed prosecutors took the history of Khmer Rouge killing, starvation and slavery and retold it as a conspiracy in which five people formed criminal intentions resulting in genocide, war crimes, crimes against humanity and as many as 2.2 million deaths.
That document, known as the Introductory Submission, was forwarded to judicial investigators, who arrested and charged the five suspects over a period of four months. At a meeting in January, judges hailed the arrests as part of a swift march toward justice.
However, under the investigation, much of what has happened since remains a secret.
Currently, only one suspect, former S-21 prison director Kaing Guek Eav, alias Duch, is facing imminent indictment. Prosecutors were expected today to make their final submission on a special case file created 10 months ago for Duch’s alleged role at the torture prison.
Duch is also party to a second case file, in which judicial investigators are examining crimes he allegedly committed nationwide along with Brother Number Two Nuon Chea, ex-Foreign Minister Ieng Sary, his wife, Ieng Thirith, and former head of state Khieu Samphan.
Whatever progress may have occurred in this case is under wraps in order to protect the integrity of the investigation and the rights of all parties.
Some defense lawyers and court staff say privately that the tribunal’s Office of the Co-Investigating Judges, which recently revealed the departure of four of its most knowledgeable investigators, may not have all the resources it needs for such complex investigations.
“I seriously doubt whether any serious investigation in respect of Mr Nuon Chea has taken place so far. It is quite frustrating not to be able to seriously start working on our case,” Viktor Koppe, one of two Dutch lawyers for Brother Number Two Nuon Chea, wrote in an e-mail Thursday.
Heather Ryan, a court monitor for the Open Society Justice Initiative, welcomed the progress toward the trial of Duch but said the secrecy of the pretrial stage made it difficult to assess what is now happening in the court’s second case file.
“It is impossible to evaluate what progress is being made to bring the other case to trial,” she said.
However, international Co-Investigating Judge Marcel Lemonde said Thursday that his office had been entrusted with a gargantuan task, which is being “resolutely pursued.”
“It is obvious that we have not spent a year only investigating the Duch case,” he wrote in an e-mail. “The second case is clearly quite complex: It concerns 5 charged persons (and therefore five defense teams) and, in reality, concerns the machinations of an entire regime 30 years ago.”
Judicial investigators had in the second case file examined numerous centers used for labor, detention, interrogation and execution and had also questioned numerous witnesses, Lemonde wrote.
“In an ideal world, we would of course have preferred that supplemental resources be granted to the [office] and have wished to receive reinforcements sooner,” he wrote, adding that the co-investigating judges were “on the verge” of selecting three new team leaders to head growing teams of lawyers and investigators.
The Office of the Co-Investigating Judges “thus expects to assure a maximum operating efficiency through 2008 and beyond,” he wrote.
International Co-Prosecutor Robert Petit said Thursday that the pace of investigations reflected the court’s circumstances, “the nature of the crimes and the nature of this court, its complex structure, its largely new or untested legal framework and its limited resources.”
“The particularity of this court is the level of public expectation: A lot of people think that they know what happened and that all of it has been written and told. It’s expected that the court’s process will simply be a validation of this and therefore should be public,” he wrote in an e-mail. “That’s not how a criminal investigation works.”
Donor country representatives at the UN in New York said last week that David Tolbert, the UN secretary-general’s special adviser on the court, had proposed to split Ieng Sary and Ieng Thirith from the second case file in an effort to try them earlier.
Court officials have said they are unaware of such discussions.
A donor country diplomat said by phone from New York on Thursday that the court’s financial backers were concerned that the pace of investigations may be too slow.
But they hesitated to say this out of respect for the court’s judicial independence, leaving the court caught between its judicial ideals on one hand and harsh fiscal realities on the other, he said.
“It’s a bit difficult to push them to speed up,” said the diplomat, adding that current budget projections estimate that about 200 witnesses will be heard in court.
“It takes a long time to hear all those witnesses,” he said. “We cannot say that, because it is a discretion of the judges and lawyers.”
“It is a problem, and we just hope to finish these trials by the end of 2010,” he said, adding that Tolbert had advised donors to manage their expectations. “What Mr Tolbert said is that no one can foresee the result.”
“It largely depends on the strategies of the lawyers. If they want to prolong the process, they can do that,” he said.