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Procedural Deadlock Leaves Future of Khmer Rouge Tribunal in Doubt

FILE - Khieu Samphan, former Khmer Rouge head of state, is seen on screen at the court's press center at the U.N.-backed war crimes tribunal on the outskirts of Phnom Penh, Cambodia, Nov. 16, 2018.
FILE - Khieu Samphan, former Khmer Rouge head of state, is seen on screen at the court's press center at the U.N.-backed war crimes tribunal on the outskirts of Phnom Penh, Cambodia, Nov. 16, 2018.

Cambodian and international prosecuting judges remain at odds on whether to proceed with new cases.

Almost 13 years and $300 million after it was established, the U.N.-backed tribunal prosecuting Khmer Rouge atrocities has less than a year remaining in its mandate and uncertain prospects of bringing anyone else to trial.

Since it was sworn in on July 2006, the hybrid Cambodian and international court has managed to convict torture center chief Comrade Duch' in 2010 and bring in guilty verdicts against Khmer Rouge leaders Nuon Chea and Khieu Samphan in 2018. All three were all sentenced to life imprisonment for crimes against humanity, war crimes, and genocide, torture, and murder.

Two other top suspects — Ieng Sary and Ieng Thirith — died before their cases could be concluded.

Potential charges against three other suspects, however, remain in limbo amid disagreement between the Cambodian and international prosecutors and the stated wishes of the Hun Sen government not to see any further convictions. The prime minister and many ruling party members were once mid-level Khmer Rouge cadres themselves before they turned against the regime.

The impasse is disturbing to some legal experts, who fear political considerations will outweigh demands for justice on behalf of the surviving victims of the 1975-79 Pol Pot regime, which is held responsible for an estimated 1.7 million deaths.

"There is uncertainty about whether cases against three remaining accused ... will be finally resolved consistent with the legal principles and rules of the court," the advocacy group Open Society Justice Initiative said in an analysis in January.

Informing victims

Daniel McLaughlin, senior staff attorney at the Center for Justice & Accountability, told VOA Khmer the court — known as the Extraordinary Chambers in the Courts of Cambodia (ECCC) — has a particular responsibility to clarify its intentions to those victims who have come forward to the court as "civil party applicants."

"Victims need to be informed that the ECCC is closing, and why, as well as what that means for their civil party applications, particularly for those who joined" in connection with the three pending cases, he said.

Those cases, referred to in court documents as Cases 003, 004 and 004/02, concern Navy Commander Meas Muth, regional commander Yim Tith, and the former deputy secretary of the Cambodia's Central Zone Ao An.

The court's tentative schedule calls for those three cases to be completed by March 2020, but so far there is no decision to move forward with any of them, as the court's Cambodian judges say the three were not sufficiently high-ranking in the regime to warrant prosecution.

Final appeals for the three individuals already convicted are scheduled for late 2020.

Under the system set up for the tribunal, there is one Cambodian and one international co-investigating judge, either of whom can indict suspects. Pre-trial procedural matters are decided by a Pre-Trial Chamber comprising three Cambodian and two international judges. Major decisions require a super-majority, meaning neither the Cambodian nor the international judges can prevail on their own.

In the three remaining cases, the international co-investigating judge has moved to indict the three suspects while the Cambodian co-investigating judge has countered with a unilateral order to dismiss the indictments. The Pre-Trial Chamber is scheduled to hear arguments on both sides later this week (June 19-21).

The Open Society Justice Initiative has warned that if the Pre-Trial Chamber performs as it has in the past, the court risks closing in legal deadlock.

Legal deadlock expected

"The Cambodian judges on the Pre-Trial Chamber are determined to end the cases regardless of the evidence of criminal liability," the NGO wrote. "If the pattern holds, there will be no super majority vote on the Pre-Trial Chamber to defeat either the dismissal order or the indictment. There will be a deadlock."

The advocacy group add that it is unclear under the court's rules how such a deadlock can be resolved.

The lack of progress is a source of frustration to many Khmer Rouge victims such as Sum Rithy, a survivor of a prison in Siem Reap and a civil party complainant.

"There's some disappointment as it was not going smoothly," he said. "Case 003 and 004 now are in a stalemate and it's not likely it will move. If the court needs to end, just do it and avoid wasting money of the state and the U.N."

Peter Maguire, an American law professor and author of Facing Death in Cambodia,' also argued that if the court is unable to move forward it should shut down.

"They need to tell their man Hun Sen, that they will no longer stand by him and announce a departure date. Now it is time for the U.N. to stop the magical thinking about future trials, confirm the final sentences, and announce a departure date from Cambodia," he said.

Despite its shortcomings, though, some legal experts believe the court has played a valuable function by investigating and documenting atrocities perpetrated during the Khmer Rouge period.

As the tribunal prepares to complete legal proceedings, it should shift its focus on this legacy, said Youk Chhang, director of the Documentation Center of Cambodia, which has provided some 1 million documents to the court and provided other materials to community organizations, schools and universities.

He said his organization will soon release a public survey on how Khmer Rouge-era and tribunal documents can best be preserved and made available to the Cambodian public.