Former Khmer Rouge member Ao An last week said he agreed with the national judges at the pre-trial chambers of the Khmer Rouge Tribunal that his charges should be dropped, which was contrary to the decision handed out by their international counterparts.
The pre-trial chamber of the hybrid court was split in its decision on whether to uphold the indictment against Ao An, who was a regional deputy commander in the Khmer Rouge regime. The three national judges asked for the charges to be dropped and the two international judges called for the case to proceed to trial.
The chamber was ruling on appeals filed in relation to contrary rulings made by the co-investigating judges in 2018, where again the national judge called for the case to be closed and the international judge ruled that the case should proceed to trial.
“I would like to request all [international judges] to agree with the national judges—to end my case,” said Ao An, from his home in Battambang province’s Kamreang district.
Prior to the ruling, Ao An had also spoken to VOA Khmer at his home, while cleaning his backyard. He said that the court had wrongly charged him and that the case was invalid, in his consideration. Ao An has maintained his innocence calling for an end to the case.
“I ask all of you (judges) to drop charges and pardon me, for all these things I have not done,” he said prior to the pre-trial chamber verdict.
With a 3-2 split, the pre-trial chamber could not find the required supermajority on whether to drop the charges or proceed to trial, with no procedures in the court’s framework.
Ao An’s legal team said the ruling confirmed that the former Khmer Rouge member’s charges should be dropped and that all five pre-trial chamber judges had agreed that contradictory closing orders violated the court’s legal framework and they could not decide on how to proceed.
“Nevertheless, the judges were unable to reach a unanimous decision on how to proceed – and there is no rule or mechanism to clarify what happens next,” the statement reads.
Immediately after, the national co-prosecutor’s team issued a statement, seemingly agreeing with Ao An’s legal team that the charges should be dropped and case closed. The international co-prosecutor, instead, pointed to the judges’ use of the term “considerations” rather than decision, saying the conflicting orders were not a final ruling because of the lack of a 4 to 1 majority.
“Contrary to some media reports, the Pre-Trial Chamber’s Considerations do not acquit Ao An or conclude the case,” said international co-prosecutor Brenda J. Hollis, in a statement released December 24, 2019.
The case symbolizes the gridlock that the Khmer Rouge Tribunal finds itself in. After the conviction of Kang Kek Iew, or Duch, and Nuon Chea and Khieu Samphan, the court has not had any more convictions or cases moving to trial.
Additionally, following Nuon Chea’s death in August 2019, his and Khieu Samphan’s appeal of one of their charges also remains uncertain.
Earlier in December, the hybrid court heard similar appeals to conflicting closing orders issues by co-investigating judges in the case of former Khmer Rouge naval commander Meas Muth. The co-investigating judges were again split on whether to proceed to trial.
The former Khmer Rouge cadre has also maintained that he was not a senior member of the Khmer Rouge hierarchy and not most responsible for the atrocities committed under the regime, the two key factors that have to be satisfied to proceed with trials and that have caused deadlock in all the outstanding cases.
Speaking to VOA Khmer prior to his appeal hearing, Meas Muth said that charges against him needed to be dropped and that he should not be prosecuted for crimes he was not responsible for.
"If as per the law, [I] am not in the jurisdiction of the tribunal because I am not the most senior leader or the most responsible person, why would the international judges still want to prosecute?"
The decision on Meas Muth’s case is expected in early 2020 and will again be a bellwether for the court’s future, and the cases of other accused persons, Ao An and Yim Tith.
Bryant Ben, a Khmer Rouge victim now living in Long Beach, California, said the hybrid court needed to keep in mind all the victims of the regime’s atrocities to resolve the procedural deadlock.
In a statement released by the Center for Justice and Accountability, a U.S.-based human rights legal organization, Bryant Ben said the court had to “render” justice for the victims.
“The trial, no matter if it’s long time or sooner, for me as a victim I can never forget it,” Bryant Ben said.
“It’s so important that the court render justice for the victims who are not be able to stand up to directly to confront the case at the court.”
Long-time court observer Long Panhavuth said it was likely the cases would now proceed to the Trial Chamber despite the confusion over their futures.
Panhavuth is referring to Internal Rule 77 (13), one subsection of which says that in the absence of the supermajority the case shall be “seised” by the Trial Chamber of the court based on the closing orders of the co-investigating judges, as regards appeals against indictment.
Incidentally, both the national and international judges at the Pre-Trial Chamber use the same rule to back up their considerations in the case.
However, Long Panhavuth said even if the cases proceeded to the Trial Chamber they will face external pressures, such as budgetary concerns and lack of political, put a question mark on their progress.
“Another point is whether the Trial Chamber, when it comes to spending time and more resources, will be able to find the super majority vote to convict the accused in case 004,” he said, referring to Ao An’s case.