Judges Slammed for Victim Rejection

Co-investigating judges You Bunleng (left) and Siegfried Blunk shake hands in December 2010 in Phnom Penh. (Photo by: Eccc)

The credibility of a Cambodian court trying former Khmer Rouge leaders is called into question.

2011-09-21
RFA

A judicial rights group has condemned the U.N.-backed Khmer Rouge tribunal for rejecting applications by families of victims wanting to be included as civil parties in the trial of members of the brutal communist movement facing war-crimes charges.

The New York-based Open Society Justice Initiative (OSJI) said in a statement that it was “deeply concerned” by a recent decision by two judges at the Extraordinary Chambers in the Courts of Cambodia (ECCC) which “undermines the principle that victims of international crimes should be given a voice in the courtroom.”

The group said judges Siegfried Blunk of Germany and Cambodia’s You Bunleng are responsible for investigating the five Khmer Rouge defendants in a third tribunal case and for determining whether victims of the alleged crimes have the right to seek official representation in the trial process.

But the two judges have denied victim status to at least one individual who was a “legitimate applicant,” according to an appeal brief filed by the victim’s lawyer, the Justice Initiative said.

It said the judges’ definition of “victimhood” precludes family members and other survivors from seeking justice for harm inflicted upon their loved ones—guidelines that are fundamentally different from those used in the court’s previous trials.

The Justice Initiative said that the victim, whose spouse was executed by the Khmer Rouge, was allowed to participate in the court’s second case against four top Khmer Rouge leaders, on the basis of the same facts.

It said that if the new definition was applied to the first case against Kaing Guek Eav—the former chief of the Tuol Sleng torture prison—only four out of 90 victims would have been permitted to join the trial.

Pattern of denial

In its landmark first trial, the tribunal last year sentenced former Khmer Rouge lieutenant Kaing Guek Eav, better known as Duch, to 30 years in prison for his role as chief of the notorious Tuol Sleng torture prison during the Khmer Rouge's 1975-1979 reign.

The tribunal later reduced the sentence to 19 years, granting Duch credit for time served. Duch has appealed the guilty verdict.

James Goldston, executive director of the Justice Initiative, said that more than one individual had been rejected as a civil party to the most recent trials.

“And this reflects a pattern more generally in cases three and four of not providing victims with the ability to take part in proceedings in the same way that they had been able to take part in proceedings in cases one and two.”

The Justice Initiative said that the recent decision “further contributes to an already sizeable body of evidence raising serious questions as to the independence, competence, and professionalism of the court’s two co-investigating judges.”

Lack of transparency

Goldston said that he was particularly concerned by the court’s lack of transparency to date.

“At least with respect to case three, there had been no field investigation undertaken and the victims were not being apprised of what was happening, so that they couldn’t even exercise their rights to apply to participate as civil parties in the proceeding.”

He also accused the court of having settled on a “predetermined outcome” for the case, adding that the legal process may have been “used as a cover for a political decision.”

“The information that we have received … suggests that a decision had been made early on not to proceed with the investigation of the five individuals at issue and that this had been done without conducting adequate field investigation or without questioning the suspects in any way,” Goldston said.

“All the things that were done in cases one and two, which are the normal, appropriate things to be done in an effective investigation and a proper procedure, were not done in this case, and that’s deeply troubling.”

Goldston echoed a call by the Justice Initiative to the U.N. in June that it should undertake an independent investigation into “whether procedures have been complied with here and whether the … co-investigating judges have complied with their responsibilities under the statute and the code of judicial ethics.”

“Continuing to ignore these allegations only serves to further risk the ECCC’s legacy for justice in Cambodia, as well as to compromise the U.N.’s own contribution to the development of international criminal law.”

Earlier rejection

In May this year, the two judges made a similar ruling against the inclusion of victims, turning down an application by New Zealander Rob Hamill, whose brother was tortured and killed by the regime.

At the time, Hamill said he viewed his rejection as an attempt by the court to have the cases “quietly swept under the carpet.”

“It’s pretty sad when the investigating judges feel there is no connection between my brother’s death and my claim to be a civil party,” Hamill told RFA in May.

“They have rejected my application to be a civil party and the reasons they state are confidential … but needless to say, their reasoning … indicates again that they are not serious about trying to take on this case,” he said.

Hamill said he believes that Cambodian Prime Minister Hun Sen, who himself served with the Khmer Rouge, had been pressuring the court to abandon the participation of victims.

“Unfortunately, this episode highlights the deficiencies of the court and actually, in historical terms, leaves a real tainted mark against the credibility of the court.”

Hun Sen had also criticized the tribunal after a co-prosecutor recommended that more suspects be investigated in addition to Duch and the four most senior surviving Khmer Rouge leaders now on trial.

Hun Sen is presumably wary that political allies who once served with the Khmer Rouge—as he did himself—could face prosecution if the court allows further indictments, reports have said.

Former Khmer Rouge leader Pol Pot and several other possible defendants, including Pol Pot’s former right-hand man Son Sen and senior military leader Ta Mok, all died before they could be brought to trial.

Reported by Sum Sok Ry for RFA’s Khmer service and Joshua Lipes.