Critical Tribunal Components Now Being Tested

By Sok Khemara, VOA Khmer
Original report from Washington
11 December 2009

Events of recent weeks have called into question what observers say are the necessary components for success at the Khmer Rouge tribunal: independence of the court and the full cooperation of the government.

The UN-backed court has stumbled over the issue of five additional indictments, while six government officials within the ruling Cambodian People’s Party have refused to appear as summoned by an investigating judge.

Investigating judges are examining the tribunal’s second case, of leaders Nuon Chea, Khieu Samphan, Ieng Sary and Ieng Thirith, following a wrap-up last month of the atrocity crimes trial for Kaing Kek Iev, or Duch.

“If the Cambodian government refuses to cooperate with the court, the UN side will have no other choice than to withdraw from the trial, or lose face and credibility,” said Peter Maguire, author of the 2005 book, “Facing Death in Cambodia.”

“There are limits to the Cambodian government’s patience and willingness to cooperate,” he said, and the tribunal “is testing them.”

Investigating judge Marcel Lemonde has issued summonses to six leaders: Senate President Chea Sim, who is also president of the CPP; National Assembly President Heng Samrin, the honorary president of the party; Finance Minister Keat Chhon; Foreign Minister Hor Namhong; and two CPP senators, Sim Ka and Ouk Bun Chhoeun.

None has complied with the court order, which calls them to be witnesses in the upcoming case, No. 002.

Ouk Bun Chhoeun declined to be interviewed for this story, while the other five witnesses could not be reached for comment. Spokesmen have said in the past their appearance could create bias in the court, as they had fought the Khmer Rouge after its ouster, in 1979.

The office of the investigating judges is also grappling with the question of five more indictments, with a list of suspects handed up by a UN prosecutor earlier this year that prompted a decision split along national and international lines within the court’s pre-trial judges.

Three international judges overruled two Cambodia judges to send the indictments to investigating judges, after Cambodian prosecutor Chea Leang moved to block the motion of her counterpart, Robert Petit, who has since left the court.

In her arguments, Chea Leang echoed concerns stated by Prime Minister Hun Sen: that further indictments could destabilize the country.

Hun Sen, helped end fighting with the Khmer Rouge in the 1990s with promises of amnesty, has not relented in his public arguments against more indictments. Last week, he warned the public to “evaluate this matter.”

“Don’t just play one corner, which is death,” he said. “And if 100,000 and 200,000 people die again because of war, who will call the Khmer Rouge, calling people out of the jungle again? I am old. When I called our brothers to come out of the jungle, I was not even 50 years old. Now I’m almost 60. There is no person to call them out any more.”

To indict more cadre, “calling them out and playing like this,” he said, was dangerous.

“Hey, some of the senior leaders, try them,” he said. “That’s not the issue. But to come and threaten.... Sooner or later they will arrest you. Then it’s fear. No way. I’m sorry to tell you that I would rather let the court fail than allow the country to have war.”

Large questions now loom over the five indictments. Without the cooperation of the government—and the police—how can they be arrested? Is Cambodian investigating judge You Bunleang participating in the investigation? And if he doesn’t, how can it proceed?

These are questions of cooperation, highlighting the delicate nature of the court’s establishment, which only happened after years of wrangling between the UN and Cambodia.

Long Panhavuth, a project officer for the Open Society Justice Initiative, a US-based monitor of the tribunal, said the court should be able to function for its own benefit, in accordance with laws and agreements, including arrests, investigation and prosecution.

Having signed on for the court, the Cambodian government must now step back and let the judges decide what is best, he said.

“So if the government…says to witnesses that they should not testify, then the government’s credibility is involved and won’t be clean,” he said.

On the other hand, judges must decide how necessary any given witness is, he said.

Given Hun Sen’s open remarks against further indictments, and the refusal his party members to cooperate with the investigation, OSJI reported in November that political interference was hurting the court’s credibility.

OSJI’s executive director, James Goldstone, told VOA Khmer recently the UN and the donors will have to soon address the issue. The lack of full government cooperation, he said, “would be a very bad signal and a very bad indication of the court’s independence.”

Defense teams, meanwhile, have seized on events, claiming that the court’s proceedings—and fair trials for their clients—have been jeopardized.

Nuon Chea’s lawyers have argued that Hun Sen’s speeches are threats to potential witnesses for the defense, requesting the court to officially investigate.

Phay Siphan, a spokesman for the Council of Ministers, said Hun Sen’s speeches were expressions of the prime minister’s opinion, but they did not mean the court’s judges couldn’t do their jobs.

“They need to respect what is the official legal procedure of the Khmer Rouge court,” he said. “They can’t do wrong from that.”

Not all will be persuaded by that logic.

Chanly Kuch, who has watched the trial from his home in Maryland, said he so far thought the UN would bring the court to international standards, but he called Hun Sen’s public warnings a political issue.

“I also want to know, where are the Khmer Rouge that [Hun Sen] has said will break out in war at the calling of five more [indictments],” he said. “We want to see. And we want to know, who is the Khmer Rouge? And where are they? And if we know that they still exist, why don’t we arrest them all and try them additionally?”

There are other questions as to how far UN and Cambodian cooperation will carry the court.

“I understand that the UN repeatedly believes in the government, that the government has the intention to make this succeed,” said OSJI’s Long Panhavuth. “With such a stand on political goodwill, the UN can negotiate with the government and make this succeed, because both the UN and the government have the same common direction.”

Peter Taksoe-Jensen, UN Assistant Secretary-General for legal affairs, who has traveled back and forth from Cambodia negotiating over the tribunal, said cooperation has improved.

“I just visited Cambodia a couple weeks ago, and my impression is that there has been very, very significant improvement” in cooperation, Taksoe-Jensen said by phone from New York. “It is running very, very smoothly now in the court.”

The question of six CPP witnesses will have to be decided within the Cambodian government, he said, adding that atrocity crimes courts in Yugoslavia and Rwanda dealt with the same questions.

As to the five further indictments, Taksoe-Jensen said he expected the case, No. 003, to continue. “I also expect that the Cambodian government will full cooperate in that.”

Spokesman Phay Siphan said the two sides were cooperating to strengthen administration of the court, to ensure “transparency and effectiveness of the work.”

However, Maguire, the author, was critical of the UN’s efforts—and autonomy.

During the Untac period of the 1990s, “even when the UN had thousands of soldiers in Cambodia, their leadership did not have the political will to use them effectively,” he said. “Today, the UN are paper tigers without teeth and claws, and totally dependent on the Cambodian government to carry out their orders.”

Yap Kim Tung, president of the US-based group Cambodian-Americans for Human Rights and Democracy, said the UN may go soft on Cambodia in order to see the court move forward, to see leaders go to trial before they die.

That, he said, has some value.

“The Cambodian court seems to give no justice, and people mostly know it,” he said. “So if there is participation of an international team that gives more value to the courts, and there is confidence that this court will try and give more justice than the local courts, that’s what Cambodia is trying, and that’s why people believe in this court’s value.”