CHARLOTTE, N.C. — The United Nations-supported tribunal in Cambodia went through another round of internal wrangling in April when international and Cambodian court members again publicly disagreed over a decision to try the former Khmer Rouge Navy Commander Meas Muth.
Legal experts said the renewed divisions signal that the Extraordinary Chambers in the Courts of Cambodia (ECCC) is unlikely to proceed with the remaining case against Meas Muth and the case against a former commander named Yim Tith, despite the international prosecutor’s claims to the contrary.
The ECCC, a hybrid tribunal that started in 2006 and has cost some $300 million, sentenced torture center chief ‘Comrade Duch’ in 2010 and completed a full guilty verdict against top leaders Nuon Chea and Khieu Samphan in 2018.
For many years, however, proceedings in the cases against three other ex-Khmer Rouge commanders—Meas Muth, Yim Tith and Ao An, who are all in their 80s—faced procedural deadlock. As international judges and prosecutors at the tribunal attempted to proceed with the trial, while their Cambodian counterparts tried to dismiss the cases.
Most observers believe the Cambodian court members’ position mirrors the Cambodian government’s public position that the trials should be limited to the convictions of the very top leaders Khieu Samphan, Nuon Chea and Duch (the latter two died in 2019 and 2020, respectively).
Split decisions in Case 003
Recently, on April 7, the ECCC issued a statement explaining that the Pre-Trial Chamber’s international judges, Olivier Beauvallet and Kang Jin Baik, decided to indict Meas Muth in Case 003, while the Cambodian judges, President Prak Kimsan, Ney Thol and Huot Vuthy, wanted to ‘archive’ the case. As a formal decision on whether to dismiss or proceed with the trial can only be made when at least four of the five judges agree, Case 003 faces continued procedural deadlock.
On April 14, in a reaction to the Pre-Trial Chamber judges’ decisions, the ECCC’s National Co-Prosecutor Chea Leang followed the Cambodian judges and indicated that the trial against Meas Muth cannot proceed, while International Co-Prosecutor Brenda Hollis stated that the Pre-Trial Chamber split statement indicated it could.
Meas Muth told VOA Khmer in a brief telephone call in late April that he was unaware of the latest developments in his case. Previously, he denied to VOA Khmer that he held any responsibility for the countless crimes and some 1.7 million deaths caused by the 1975-79 Pol Pot’s regime.
The wrangling in Case 003 follows a similar pattern of years of internal court disagreements in Case 004/02 against Deputy Secretary of the Central Zone Ao An, and Case 004 against Yim Tith, commander in the Southwest Zone and later Northwest Zone. Ao An’s case was ultimately dismissed by the ECCC’s Supreme Chamber in August 2020, while Yim Tith’s case awaits further ECCC proceedings.
A final ECCC decision is also expected in the weeks ahead in the appeal in the case against Khieu Samphan, which has not been affected by internal disagreements.
Legal experts and lawyers of victims said they had little hope that the ECCC would succeed in starting trails in the remaining two cases against Meas Muth and Yim Tith, and they criticized the U.N.’s continued involvement in the protracted judicial quagmire at the tribunal.
“There is presently no indication that Case 003 [against Meas Muth], and the remaining Case 004 [against Yim Tith], will end any differently than Case 004/2 [against Ao An] - which has aligned with the Cambodian government's public statements calling for these investigations to be quashed,” Daniel McLaughlin, senior staff attorney at the Center for Justice & Accountability, told VOA Khmer.
In a January 2020 analysis, the Open Society Justice Initiative wrote that internal ECCC disagreements follows a decade-old, unbroken pattern that “supports a conclusion that the Cambodian officials are following the express or implied instructions of a government with complete control over its judiciary.” The organization said this political interference breached the 1997 agreement between the U.N. and Cambodia that established the ECCC.
Legal experts and lawyers suggested that the U.N. should formulate a transparent exit strategy, ensure public access to all court documents, and conduct outreach to victims and the Cambodian general public in order to explain why the ECCC convicted only three defendants for the numerous crimes of the Khmer Rouge regime.
The U.N. and ECCC donors’ “silence has been disappointing and a true disservice to the victims who have entrusted their stories and hopes in the ECCC continuing to function as a neutral and independent body,” said McLaughlin, whose NGO helps Cambodian-American victims fight for justice.
Peter Maguire, an American law professor and author of ‘Facing Death in Cambodia,’ said, “When the Cambodians refused to investigate these new cases, much less carry out arrest warrants, the United Nations should have completed their existing caseload and announced a departure date. Instead, the UN and their allies in the human rights industry challenged [Prime Minister] Hun Sen” without success.
McLaughlin said while the ECCC would not provide further justice and accountability for Khmer Rouge victims, there could conceivably still be such opportunities in the national judicial system in the future, as the ECCC’s recent decision left open this option.
”While most would agree that the circumstances in Cambodia today are not opportune for these types of prosecutions, I think it’s important to note the possibility as a potential future goal, if that reflects the wishes of victims,” he said.
Mixed opinions on tribunal
Cambodian observers who survived the Khmer Rouge offered mixed opinions on the achievements and ongoing deadlock of the ECCC.
“The Cambodian national judges of the ECCC did what they were told [by the government], but the victims do not have to accept, forgive, or forget. This tribunal will not render justice in this lifetime, but karmic justice will always be there,” Sophal Ear, a professor on Diplomacy and World Affairs at Occidental College in California, told VOA Khmer.
He added, “The court could not even proceed with the head of the Khmer Rouge Navy. When mass murderers get away, this is bad for international norms of justice and accountability.”
Youk Chhang, director of Documentation Center of Cambodia, which provided historic documents for the ECCC and raises public awareness about the trials, said the victims still felt a sense of justice as top leaders were convicted, while the trials also provided an important lesson to Cambodian society about accountability and justice.
“I think that the court has tried its best… in a difficult process, facing heavy criticisms and to much applauds as well,” he told VOA Khmer.