Obstruction of Justice

Poetic Justice along Quay Sisowath with Theary Seng throwing darts at the "war criminals" (Photo: The Phnom Penh Post)

Op-Ed by Justin Sok

Ms. Theary Seng ... had invited the public to join her in playing the “Poetic Justice War Criminals Dart Games,” using dartboards depicting the photos of the former Khmer Rouge leaders. She has withdrawn her participation with the court process. Ms. Seng said, “Enough is enough! The court is a farce!” She no longer has faith in the KR tribunal. On the other side of the aisle, Michiel Pestman and Andrew Ianuzzi, co-defense counsels for former Khmer Rouge leader, Nuon Chea, has filed criminal complaints to the Phnom Penh Municipal Court, requesting an immediate investigation into alleged interference by the Phnom Penh government officials, naming some of the high ranking officials as culprits.

In the late 1990‘s, the Phnom Penh government officials, consisting of the two Co-Prime Ministers, Hun Sen and Prince Rannaridh, were toying with the idea of bringing the remaining Khmer Rouge leaders to justice. They covertly sought assistance from the United Nations to set up a hybrid tribunal inside Cambodia to try the former Khmer Rouge leaders. However, Hun Sen never had any intention of putting these remaining Khmer Rouge leaders on trial. He was more aggressive in his drive for power and absolute control. Hun Sen has been internationally known as an iron-fist dictator, who would constantly, at any cost, devise schemes to stamp out his political opponents. With the subsequent political turmoil during the coup d’état in 1997, the plan for the tribunal was temporarily shelved.

The plan of establishing a tribunal to try the former Khmer Rouge leaders was brought back to the table in early 2000‘s. After six years of intense negotiations between the United Nations and the Phnom Penh government, the Khmer Rouge tribunal, legally known as the Extraordinary Chambers in the Courts of Cambodia (ECCC), was created in 2006. The legally binding agreements, inter alia, was that the “trial would take place in Cambodia” and the most significant and controversial decision was that the “Phnom Penh government’s insistence of ownership of the trials.”

After a tribunal had become a legal reality, the politicians, legal experts, and the general public joined in a united chorus expressing their grave concerns. The public opined that the Khmer Rouge tribunals would inevitably getting “political interference” from the Phnom Penh government, and as the result, it would lead to an international boondoggle, and more regrettably, a “travesty of justice.” Initially, the United Nations had creditable reasons to believe that they were dealing with the elephant in the room, but without any reservation and without taking the public objections under advisement, the U.N. made a swift decision to place its own reputation, integrity and fiduciary duty, into the hands of the dogmatic and “Paleolithic” mentality of the Phnom Penh government.

Having made the decision to move forward and with millions of dollars starting to funnel in, the important legal actions of the U.N., participating in the tribunal, was supposed to shield the court of from “political interference” from the Phnom Penh government. The U.N. had firsthand knowledge that the Cambodia’s judicial systems, which is handicapped by a poorly trained staff, manipulation, nepotism, and corruption, would not measured up to that of international legal standards, and thus, repeatedly made statements affirming the importance of judicial independence. The U.N. would have international legal embodiments to help monitor and provide legal expertise to the court. The U.N. had hoped that the Phnom Penh government would uphold their agreements and honor their commitments in partaking of this historical action. More importantly, it was hoped that the tribunal would bring justice and closure to the people and put a dark chapter in Cambodian history in the rear view mirror. Unfortunately, the U.N. had made fundamental errors for having the Phnom Penh government be a watchdog over the Chambers. Having had executed this critical decision, the U.N. had, “the wolf guarding the sheep.”

In July of 2010, after the court had rendered its first verdict, convicted one of the alleged defendants, Kaing Guek Eav, alia Duch, the Chief Executioner, prison at S-21, the tribunal had come to a halt due to intense political and financial pressure. The official representatives from the Phnom Penh government flew to New York and proclaimed that more money would be needed to proceed with the subsequent cases. While the trial was temporarily postponed, awaiting international donors to commit their charitable contributions, the tribunal is also embattled within its own internal organization, bandaging the on-going allegations, which included the most damaging to the trial proceeding were the political interference of the Phnom Penh government, judicial misconduct, and violations of victims’ rights. Apparently, the Phnom Penh government had shifted gears after having learned that the KR tribunal has become a political liability and a legal tool to scrutinize, in front of the world, their responsibility for war crimes, crimes against humanity, and grave breaches of Geneva Conventions. Hun Sen has continued making threats to derail the Khmer Rouge Tribunal if more cases are filed and investigated.

Public-interest groups including the defense lawyers, political opposition, Human Rights Watch, and the Civil Party had voiced their concerns over the fact that the Phnom Penh government was tampering the trials. The Civil Party has incessantly filed motions, requesting for the Co-investigating judges, German Siegfried Blunk and Cambodian You Bunleng, to further investigate cases 03 and 04. The Co-investigating judges had adamantly refused to fulfill the requested, and in early of October 2011, judge Blunk held press conference to announce his resignation, alleging government interference in the investigation of new cases. Ms. Theary Seng, lawyer representing for the Civil Party had invited the public to join her in playing the “Poetic Justice War Criminals Dart Games,” using dartboards depicting the photos of the former Khmer Rouge leaders. She has withdrawn her participation with the court process. Ms. Seng said, “Enough is enough! The court is a farce!” She no longer has faith in the KR tribunal. On the other side of the aisle, Michiel Pestman and Andrew Ianuzzi, co-defense counsels for former Khmer Rouge leader, Nuon Chea, has filed criminal complaints to the Phnom Penh Municipal Court, requesting an immediate investigation into alleged interference by the Phnom Penh government officials, naming some of the high ranking officials as culprits.

The news about the Phnom Penh government meddling with the trials has sent a shockwave and sparked concerns at the U.N. Headquarters in New York. The U.N. Under Secretary-General for Legal Affairs, Patricia O'Brien flew to Phnom Penh and held a special meeting behind closed door with the official representatives from the Phnom Penh government. The action taken by O’Brien to restore court order and rectify court legal proceedings with the Phnom Penh government was clearly little more than empty words. It was manifested by a handshake and whispering, “Try not to stick your hand in that cookie jar.” There was “clear and convincing evidence” that the Phnom Penh government had in fact, politically monkeyed with the trials. It was indeed, highly probable of substantial evidence to give the people of Cambodia a legal standing, an opportunity to seek judicial enforcement against the Phnom Penh government for “obstruction of justice.”

Thank you,

Justin C. Sok, 11/24/2011.