The Khmer Rouge Tribunal’s International Co-Investigating Judge Michael Bohlander last week pressed additional charges against Ao An, a former mid-ranking regime official. The charges of genocide and other serious crimes followed murder and crimes against humanity charges leveled against 83-year-old Ao An, a.k.a Ta An, the former deputy chief of the Khmer Rouge’s Central Zone who is a defendant in the court’s fourth case.
The extra charges might suggest that progress is being made in the case. But trial observers question whether the case 004, one of two at the hybrid United Nations-Cambodian court that the government has consistently opposed, is really going anywhere.
The Cambodian judges at the court possess significant powers of obstruction, and the government apparatus has shown itself unwillingness to carry out arrests in the cases, which Prime Minister Hun Sen has warned should not be prosecuted at risk of reigniting civil war.
Three suspects have been named in case 004. Alongside Ao An they are Yim Tith, a.k.a. Ta Tith, who was the acting chief of the Northwest Zone, and Im Chaem, the former district chief of Preah Neth Preah. In the other outstanding case, 003, only Meas Muth, the regime’s navy chief, is charged.
They are all charged with crimes against humanity and murder for their actions in the late 1970s, and some are charged with genocide relating to massacres of members of the Cham Muslim or ethnic Vietnamese minorities. None are currently detained.
Neth Pheaktra a spokesman for the court, officially named the Extraordinary Chambers in the Courts of Cambodia, insisted that arrests were not necessary so long as the suspects cooperate with the court and show up when summonsed. The court’s judges can call for arrests if they believe it necessary for the investigation process, he said.
“Based on the law and internal rules of this implementation, and according to the national law, the additional charge against anyone does not need to always arrest them all,” Pheaktra told VOA Khmer. “We see there is cooperation from the suspects. They appeared in the court following the summons of the international judge.”
For the cases to reach trial, the International Co-Investigating Judge needs to complete the investigations on the two cases by June this year.
Even if that happens, national judges—who have generally followed the government and Prime Minister Hun Sen’s wishes regarding the two cases—hold majorities at every level of the court, and can therefore significantly slow down the process.
Judges could disagree on the issue of whether the suspects in cases 003 and 004 constitute those “most responsible” for the regime’s crimes, a criterion written into the court’s remit.
Still in place are the barriers to progress that have seen a string of international judges leave the tribunal in anger. Complaints can be filed and arrest warrants can be withheld. By law, if the tribunal’s Pre-Trial Chamber can’t find a reason to object to the cases, they will move forward. But the question remains: Will Cambodian officials cooperate and make arrests?
What is really needed to move the cases forward is a political deal, said Long Panhavuth a leading court monitor at the Cambodia Justice Initiative.
“Can it move to arrest and detention? The answer is: It’s not possible if there is no political deal between the Cambodia government and the U.N.”
Claims from the international side that suspects were not being detained due to a cash flow shortage were “an excuse,” Panhavuth added. “The most important thing is there is no cooperation between the national and international side,” he said.
Youk Chhang, executive director of the Documentation Center of Cambodia, said it wouldn’t be known whether the lengthy investigations into cases 003 and 004 had yielded enough documentary evidence to convict the suspects until a trial was held. But numerous changes to court procedures were holding the trials back, he said.
“It’s hard because this is in the hands of the lawyers and judges,” he said.
“I just urge that they should respect the procedures and think about the justice for the victims. That is what should be more important than to change the procedure or any mechanism that is not thinking about the desire or what the victims want.”
U.S. law professor, who authored the book “Facing Death in Cambodia” about the Khmer Rouge’s crimes, said Hun Sen had consistently outmaneuvered the U.N. and the court’s international donors to the tribunal.
“Although national law or international law is one factor, an equally important factor is power,” he told VOA Khmer. “Does the U.N. have the power to compel the Cambodian government to arrest and try another series of defendants? Absolutely not.”
Successfully bringing the suspects in cases 003 and 004 to justice seemed unlikely, even as the costs of the trial and its staff continue to pile up, he noted.
“The U.N. is a guest in the kingdom. In order to move forward with cases 003 and 004 they need the support of the Cambodian leader Hun Sen,” he continued. “Not only do they not have it, they have never had it.”