Reported Plan Under Way to Scuttle Tribunal Cases

Allegations are outside the court’s first two cases, may never be addressed

After years of pressure from the government, judges at the Khmer Rouge tribunal are executing a plan to do away with politically in­convenient investigations for al­leged genocide, war crimes and crimes against humanity, according to multiple sources with know­ledge of the matter.

Though details remain scant, some UN investigators have been informed that their contracts will not be renewed beyond the end of this year, when their office is expected to close, according to people outside the court briefed on the activities of the co-investigating judges.

No attempt to interview any of the five suspects named by UN prosecutors in 2009 has yet been made, but the investigating judges have identified approximately 200 witnesses for questioning before the closure of one or more cases, according to two people briefed on the matter.

Though UN officials at the court have long expressed a sense of foreboding about the prospects for cases 003 and 004, word of an im­minent and coordinated closure of one or both of the cases reached a crescendo this month.

The timing of the judges’ plan remains unclear, but court procedure requires that they publicly announce the closure of investigations and allow prosecutors both to ask for additional investigation and to appeal against any dismissals.

Before the court’s creation, negotiations to set its mandate and jurisdiction–to try “senior leaders” and those “most responsible” for Khmer Rouge crimes–were always subject to political constraints, forbidding, for example, the prosecution of crimes occurring either before 1975 or after 1979 or the pursuit of low-level offenders.

But the closure of either case 003 or 004 would raise the possibility that, even after the court’s operations were under way, judges and administrators were subject to illicit outside pressure.

The court was created to end impunity, but may end up acquiescing in the protection of identified suspects. Since at least as early as 1999, Prime Minister Hun Sen has maintained that no more than five people will be tried. He has been supported in this by the court’s Cambodian jurists, while the UN side had until recently tried to proceed with the additional cases.

The co-investigating judges said via the public affairs office yesterday that they could not answer questions about the cases.

“The co-investigating judges are continuing to work together on cases 003 and 004 in accordance with the [tribunal] law and the internal rules. As the investigation by law is confidential, they have no more information to give at this point,” they said in an e-mail.

However the court’s behavior at this point is markedly different than it was in the two and a half years during which it opened and closed its first two cases.

Over that period, the court’s co-investigating judges released public information about the progress of their work on nearly 40 occasions, or more than once a month on average.

Judge You Bunleng and former co-investing Judge Marcel Lemonde of France, who stepped down last year, said they were committed to “a spirit of transparency,” to providing “regular updates on the progress of the investigations.”

They revealed when they expected to complete different stages of the work, announced deadlines for the reception of victim complaints and, perhaps most importantly, revealed the scope of their investigations by identifying the crime scenes and factual situations under review.

Since the opening of cases 003 and 004, however, the Office of the Co-Investigating Judges has produced only two statements, both in reaction to articles in the press. Judge Bunleng backed out of the investigations in June, only to announce in February, once field investigations had already been suspended, that he would cooperate in a review of existing documents.

Investigations are also clearly not the priority they once were: In 2008, court administrators appealed to donors for funding, calling the Office of the Co-Investigating Judges the “engine” of the proceedings that was deserving of support.

This year, administrators appealed to donors by putting the office at the heart of the court’s cost-cutting measures, saving nearly $1 million through the suppression of vacant positions.

January’s budget proposal said the reduction in resources was due to the fact that documentation in cases 003 and 004 “partially overlaps” with the records already collected in the court’s larger case 002, which was completed last year.

But such an overlap may be overstated.

UN prosecutors announced in 2009 that the new cases involved 40 factual situations of alleged murder, torture, illegal detention, forced labor and persecution.

But the majority of these allegations do not appear in the cases already completed by the court, meaning no one is likely ever to be held to account for these alleged crimes, according to a person with knowledge of the investigation. Together the two cases concern well over 100,000 victims.

In an essay published yesterday in the International Herald Tribune, James Goldston, executive director of the Open Society Justice Initiative, said donors appeared “anxious to see the tribunal wind up operations.”

“Even international staffers feel constrained to focus their efforts on making the most of case 002, given the unlikelihood of any further trials,” he wrote.

The US Embassy said yesterday it was “confident in the integrity of the judicial process” and would support efforts to help fund the court fully. The Japanese Embassy said it appreciated the court’s “professionalism” and that cases 003 and 004 were a judicial matter.

However some donor representatives appear to prefer deemphasizing the very messy spectacle of the court’s current investigations in favor of celebrating case 002, which is to go to trial this year.

In an interview last month, Clint Williamson, a UN adviser on the court to UN Secretary-General Ban Ki-moon, said political concerns were an inevitable part of judicial decisions in most jurisdictions.

“I don’t think that anything has happened that has undermined the fundamental integrity of the court,” he said. “We put judges in place. We need to allow them to do their job and at the end of the day, we have to respect their decisions whether we necessarily agree substantively with them or not.”


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