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Saturday
May142011

Is the Khmer Rouge war crimes tribunal planning to shut the door on future cases?

There are no publicly named suspects, no defence lawyers and no official victims. And soon, court observers in Cambodia fear, there will be no further Khmer Rouge trials.

On a Friday evening in late April, the United Nations-backed war crimes tribunal quietly announced that co-investigating judges had wrapped up their investigations into the third of four cases looking into crimes of the brutal Khmer Rouge regime. But the court has never publicly identified the suspects under investigation in what’s become known here as Case 003, nor has it reached out to potential victims.

The move, court observers say, is another sign the tribunal will not proceed with what has become a politically charged case.

“It seems like they were trying to get the least amount of attention on this move as possible,” said Clair Duffy, a court monitor with the Open Society Justice Initiative.

Guilty verdict

So far, only one Khmer Rouge figure has ever been tried and convicted by the Extraordinary Chambers in the Courts of Cambodia, or ECCC, as the tribunal is officially known.

The tribunal trumpeted the July 2010 conviction of Khmer Rouge prison chief Kaing Guek Eav, known as Duch, as a triumph of justice after years of impunity for the notorious Khmer Rouge.

In addition, four senior leaders in the regime have been indicted and their trial, referred to as Case 002, is expected to proceed sometime this year, though the court has not announced a start date. In both cases, the tribunal has been quick to release public updates about the proceedings and has made significant efforts to engage survivors of the regime, as well as former Khmer Rouge cadres, in the legal process.

But the court has chosen not to release details of its investigation into the third case, leaving potential victims in the dark. The tribunal allows qualified victims or their families to directly participate in trial proceedings as civil parties.

“We have basically heard next to nothing about this case for 20 months,” Duffy said.

“It literally couldn’t be more different to the Case 002 investigation and how much information was made available. The fact that civil parties were never given even the most basic information to be able to participate is another indicator. All of this tends to show that the judges wanted this issue to quietly slip away.”

The court has been hampered by accusations of political interference. The government has repeatedly stated that it believes the tribunal should stop its work after the long-awaited second trial has ended, arguing that further prosecutions would destabilise a country that is still healing more than three decades after the Khmer Rouge were toppled from power.

Case not 'fully investigated'

Opinions on whether to proceed with the third and fourth cases have been split even among court officials at the hybrid tribunal, which is composed of Cambodian legal officials as well as their international counterparts.

That rift was further exposed this week, when the international and Cambodian co-prosecutors issued conflicting press statements about the third case.

International co-prosecutor Andrew Cayley said he would urge the investigating judges to reopen the inquiry because “the crimes alleged … have not been fully investigated.”

“[Cayley] has the legal obligation … to identify and request all reasonable investigative actions which should be taken by the co-investigating judges before a decision is made as to whether or not any individuals should be indicted and sent for trial,” the statement read.

Cayley’s statement also revealed new information about crime sites where he alleges the offences under investigation took place. He also urged the court to grant potential victims more time to apply for civil party status. Under court rules, the current deadline to apply is May 18.

On the other hand, the statement from Cayley’s Cambodian counterpart, Chea Leang, which was issued the following day, underscored her opposition to further trials.

“The national co-prosecutor thoroughly examined and maintained that the suspects mentioned [in] the Case File 003 were not either senior leaders or those who were most responsible during the period of Democratic Kampuchea,” Leang’s statement read.

Instead, Leang said the tribunal should focus on prosecuting the four senior leaders currently awaiting trial.

Future uncertain

The uncertainty over the future of the case has frustrated Theary Seng, an outspoken advocate whose parents were killed by the Khmer Rouge.

“What has been happening [with the investigation] was a sham outside of the public view,” she said. “It’s an affront to the memories of those who passed away.”

Seng ruffled feathers at the court last month when she applied for civil party status in Case 003 and publicly named suspects she believed to be under investigation. A court spokesman at the time called the move “reckless”; Seng says her application has been rejected.

Seng says she was trying to bring the investigation under public scrutiny.

“The court has been hiding and using confidentiality as a pretext,” she said. “They’re failing in their responsibility.”

For now, the future of any further trials beyond the upcoming second case remains unresolved. The court’s co-investigating judges must decide this month whether to comply with or to reject the prosecution’s request to re-open the investigation. If the request is rejected, the co-prosecutors can appeal the decision. After that, the co-prosecutors will evaluate the finalised case file; they could urge the judge to indict the suspects and send the case to trial, or to drop the case outright.

An estimated 1.7 million people died under the Khmer Rouge, which ruled Cambodia from 1975 to 1979. Pol Pot, the leader of the ultra-Maoist movement, died in 1998.

A version of this story was first published by the Inter Press Service news agency.

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