The crimes of the Khmer Rouge in Cambodia are well known. Between April 1975 and January 1979, the ultra-communist regime unleashed a fierce agrarian revolution in the small Southeast Asian nation, emptying the capital Phnom Penh and herding its population into vast labour camps. The regime ruled for three years, eight months and 20 days. In that time, an estimated 1.7 million people — more than a quarter of the country’s population — died from execution, starvation and overwork.
On 27 June, a war crimes tribunal in Phnom Penh will finally put on trial four of the most senior surviving members of the murderous regime. Khmer Rouge "Brother No 2" Nuon Chea, former foreign minister Ieng Sary, head of state Khieu Samphan and minister of social affairs Ieng Thirith face a raft of charges including crimes against humanity, war crimes and genocide. The trial — the second to take place at Cambodia’s war crimes court, the Extraordinary Chambers in the Courts of Cambodia (ECCC) — comes on the heels of last year’s conviction of former jailer Kaing Guek Iev for his role in the deaths of up to 16,000 people at Phnom Penh’s notorious S-21 prison. The 30-year jail sentence handed down against the wiry former schoolteacher, better known by his revolutionary nom de guerre Duch, is currently under appeal.
However, as the second trial approaches — and with it, the promise of justice long delayed — the UN-backed tribunal has been beset by controversy related to the potential indictments of five other mid-ranking Khmer Rouge figures. The names of the suspects, who would make up the court’s third and fourth cases — known as "Case 003" and "Case 004" — have not yet officially revealed, but court documents have named the pair under investigation in the third case as former KR navy commander Meas Muth and Sou Met, head of the regime’s air force. Case 004 involves three mid-ranking officials in the KR provincial administration.
Cambodia’s Prime Minister Hun Sen, who has ruled the country since 1985, has long opposed any prosecutions beyond the second case, arguing that further arrests could "threaten social stability". In October, he brusquely told visiting UN Secretary General Ban Ki-moon that the pursuit of new cases was "not allowed". The arguments have been repeated by the court’s Cambodian judges, prompting accusations that the government is interfering in the judicial process.
Court monitors and rights activists now say the proceedings of Case 003 and Case 004 have been shrouded in secrecy and that international staff at the court are colluding with the government to shut the cases down. The issue came to a head in late April when the ECCC’s two co-investigating judges — You Bunleng of Cambodia and Siegfried Blunk of Germany — announced the completion of their investigation of Case 003. Critics charged that the judges had failed to interview any suspects and witnesses in the sensitive case, and did not inspect any mass grave sites. They alleged that the speed of the probe was an indication of its likely dismissal by the court.
"It was transparently deceitful," said Theary Seng, a human rights activist and victims’ advocate. "The judges have a duty — it’s not an option — to investigate. They have failed in their duty to investigate and they have failed to inform the public." Speaking with the Associated Press, Brad Adams, Asia director for Human Rights Watch, said a "political decision" was made to shut down the investigation.
Son Soubert, a high privy councillor to Cambodia’s King Norodom Sihamoni, said the government’s opposition to further cases was prompted by fears that sitting government officials — many of whom are former KR cadres — could be called as witnesses. Hun Sen himself was a low-ranking commander in the regime before defecting to Vietnam in 1978. "If they want the proceedings of the tribunal to go on, they have to compromise with the government," he said.
Last week, the co-investigating judges dismissed a request by international co-prosecutor Andrew Cayley to extend the investigation. Cayley said last month that alleged crimes in Case 003 — including murder, torture, unlawful imprisonment and enslavement — had "not been fully investigated" and made public a list of sites to be investigated for evidence of mass atrocities. Prosecutors allege that the pair — both known to be senior members of the Communist Party of Kampuchea, as the Khmer Rouge party was formally known during 1975-79 — share responsibility for the torture and killing of tens of thousands of people.
Though court observers welcomed Cayley’s disclosure, his Cambodian counterpart Chea Leang, a long-time opponent of further prosecutions, issued her own statement arguing that the suspects in Case 003 fell outside the court’s jurisdiction.
Clair Duffy, a court monitor with the Open Society Justice Initiative, said the UN needed to "step up" and pressure Phnom Penh to cease its meddling in the investigations. "In terms of securing national cooperation in the investigation and arrest of suspects, the Cambodian government needs to lift its opposition to these cases and make this happen," she said.
The longstanding conflict between the Cambodian and international sides of the tribunal reflects the awkward political compromise that gave birth to the hybrid court. The brewing disagreement over additional prosecutions is likely to bring such issues to a head and court observers say the fate of the two cases will be a test of the tribunal’s credibility. "The point is that the issue affects more than just Case 003 and Case 004 — it affects the whole of the court," Duffy said. "Judicial independence is a fundamental tenet of any justice system. The implications of a lack of judicial independence or of political decision making by judges are huge."
Court spokesman Lars Olsen said that it was "premature" to make any kind of judgment about political interference at the tribunal. "It’s too early to predict what will be the legacy of the court," he said. "Regardless of what will be the outcome of the investigation, the decisions of the judges will be made public" and open to scrutiny, he added.
Instead of giving in to the government pressure and taking part in a flawed process, some are calling for the UN to cut its losses and pull out of the process altogether. "It can give false hope to the people," said Son Soubert. "They should have the courage to say that this is not justice."
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