[Hun Sen is] willing to have a trial - but only as long as it's a symbolic trial and it doesn't come within a mile of anyone he wants to protect

The courtroom at Cambodia's Extraordinary Chambers may see its first trial next year. (Photo by: Tracey Shelton)

Court casts wide net, but at what cost?

Wednesday, 24 December 2008
Written by Cat Barton
The Phnom Penh Post

NEXT in the dock
CASE ONE

• Duch aka Kaing Guk Eav, former head of S-21 prison, charged with crimes against humanity and war crimes. His trial is expected early next year.

CASE TWO

• Ieng Sary former KR foreign minister
• Ieng Thirith former minister of social action.
• Khieu Samphan former head of state
• Nuon Chea Pol Pot's top lieutenant

The Khmer Rouge tribunal is seeking to broaden its investigations with a second submission, but with the Cambodian prosecutor already hestitant, critics ask: 'What will the govt do?'

WITH the Cambodian co-prosecutor resisting a proposed investigation into six more potential suspects at the Kingdom's war crimes court, critics warn the appearance of government interference could destroy the UN-backed tribunal's legitimacy.

Many senior government posts are occupied by former Khmer Rouge cadre, and experts say the government fears that a wider roundup could expose senior officials to scrutiny.

"The more the tribunal starts to spread its net, the more it will get close to people who are close to the powerholders today," said Philip Short, historian and author of Pol Pot: Anatomy of a Nightmare.

"Hun Sen doesn't want that - and that is why his government has been dragging its feet for so long," he added.

At the centre of the controversy is Cambodian co-prosecutor Chea Leang, who was appointed by the Cambodian government and, according to a 2006 article in the International Justice Tribune, is Deputy Prime Minister Sok An's niece.

Five senior Khmer Rouge leaders believed to be the architects of the regime's brutal policies are in detention at the court: former head of state Khieu Samphan; foreign affairs minister Ieng Sary and his wife, Ieng Thirith, the regime's first lady; S-21 head Duch; and Pol Pot's chief lieutenant, Nuon Chea.

A second batch of suspects would require the court to move further down the regime's hierarchy - something Hun Sen's government has long resisted.

"The Hun Sen government, for obvious reasons, wants to keep the list of accused to a handful of highly symbolic and high-profile Khmer Rouge figures who have [had] nothing whatever to do with the present government or previous governments in which Hun Sen has been a player," Short told the Post via email Monday.

"Hun Sen himself was a KR deputy regimental commander. Sure, it was a low-ranking post - and when he realised he was in danger, he fled.

But he was part of the KR, and he remained part of the KR until 1977. By that time, lots of abominable things had happened," Short added.

Senate President Chea Sim was formerly a Khmer Rouge district chief, while president of the National Assembly, Heng Samrin, was a Khmer Rouge division commander, which is "a relatively important post".

"Keat Chhon was minister of state in Pol Pot's office when Pol Pot was prime minister. Does he really bear no responsibility for the actions of a regime of which he was a government minister?" Short asked.

Despite their previous roles, however, no evidence has ever surfaced that any of the country's current senior leaders were responsible for crimes committed during the regime.

Why spread the net wider?

"People come to court to hear who killed their father, who ordered their sister to be raped or why was he transferred," said the court's international co-prosecutor Robert Petit in an interview Monday, discussing the very personal level on which victims view war crimes tribunals.

"When it is people [in the dock] who are deemed to be architects of one of those conflicts, they generally go away disappointed as they haven't heard that explanation," he added.

Duch's case, which likely will be the first to be heard early next year, has been separated from the other four detainees - all senior KR leaders - who collectively make up the second case.

When the trials of the senior leaders begin, the court may skirt the finer details of the Khmer Rouge's crimes, instead focusing on proving a link between the senior leaders in the dock and the atrocities in question.

"You seldom find that memo, ‘Please kill everyone, signed, Me'," Petit said.

"The issues in these cases are usually the linkage between the crime base and the suspects. Whereas, if you go down the food chain, you are more close to the crime base, more close to the actual carrying out of orders and the actual responsibility, the direct committing or direct responsibility - and that helps people understand a little bit better what happened."

But Youk Chhang, director of the Documentation Center of Cambodia (DC-Cam), expressed concern that the court, which has already blown its original budget and timeframe, could be overstretched by new cases, which could jeopardise the progress it has already made.

"The credibility of the [Extraordinary Chambers] depends on the trials of the five defendants who are now in its hands," Youk Chhang said.

"The victims want to know from the ECCC ... when will the trials be taking place. Without completing this important stage of the process, it will be difficult to discuss other investigations. In fact, it would generate negative effects on the current proceedings," he said.

Despite a recent fundraising drive, the Cambodian side of the court, failing further contributions, will run out of money in March 2009, court officials say. The UN side of the court will follow suit in May, according to court spokesman Reach Sambath. He added, however, that the court was "confident and optimistic" that further funds would be found.

Government interference?

Experts are wondering whether the government would dare seek to use Chea Leang to block the proposed further investigations.

"I suspect they wouldn't be happy and would do what they could," said David Chandler, historian and author of History of Cambodia.

"What they can do is clearly formidable, or we would have had this trial months, if not years ago," he told the Post via email Sunday.

Such government meddling would destroy the court's legitimacy, according to Open Society Justice Initiative's executive director, James Goldston.

"Tragically, the United Nations-backed court in Phnom Penh investigating and prosecuting those most responsible for the Khmer Rouge's crimes in Cambodia is at risk of doing just that," he wrote in a Wall Street Journal opinion piece published December 14.

Blocking the second set of prosecutions could exacerbate allegations that the co-prosecutor is acting at the behest of the Cambodian government.

"[Hun Sen is] willing to have a trial - but only as long as it's a symbollic trial and it doesn't come within a mile of anyone he wants to protect," said Short.