Hor 5 Hong’s criticisms of Lemonde were without merit: Anne Heindel

Minister explains KRT snub

Wednesday, 16 June 2010
Cheang Sokha and James O’toole
The Phnom Penh Post

Hor Namhong says foreign judge ‘abused the law’ by issuing summons alone

FOREIGN Minister Hor Namhong said Tuesday that he had ignored a request to testify at the Khmer Rouge tribunal because co-investigating judge Marcel Lemonde had “abused the law” in issuing the summons.

With his comments, Hor Namhong became the first among six high-ranking government officials summoned without success by Lemonde in September to publicly explain his refusal to testify. Cambodian co-investigating judge You Bunleng did not join Lemonde in signing the summonses.

“I did not respond because I have a legal reason,” Hor Namhong said.

“According to the rules between Cambodia and the UN, there must be two signatories, from the Cambodian side and foreign side, but Marcel Lemonde ... abused the law by signing alone, so on behalf of the government, which participated in the negotiations for the establishment of the court, I would not abuse this agreement like Marcel Lemonde did.”

In January, Lemonde issued a note detailing the action he had taken in attempting to secure testimony from Hor Namhong and five other officials: Senate President Chea Sim, National Assembly President Heng Samrin, Minister of Economy and Finance Keat Chhon and Cambodian People’s Party senators Sim Ka and Ouk Bunchhoeun. All of these officials had apparently ignored their summonses, prompting Lemonde to conclude that it was not feasible at the time to pursue their testimony further, and to defer the matter to the hybrid court’s Trial Chamber.

In a statement given through UN court spokeswoman Yuko Maeda, Lemonde defended his issuance of the summonses.

“It is not for a judge to engage in controversy with a witness,” Lemonde said. “The summons in question was delivered pursuant to Rule 72(3) of the ECCC internal rules.”

Rule 72(3) states that in the event of a disagreement between the co-investigating judges, “the action or decision which is the subject of the disagreement shall be executed” pending the resolution of the dispute. Exceptions in which no action may be taken arise if the action or decision relates to an arrest or issuance of charges, or if it may be appealed by parties to the case.

Anne Heindel, a legal adviser with the Documentation Centre of Cambodia, said Hor Namhong’s criticisms of Lemonde were without merit.

“I think it’s pretty clear that Lemonde did have authority to move forward based on the rules, and because there was disagreement between [the co-investigating judges], he’s acting on his own,” Heindel said. “That doesn’t seem to be a problem, or to lessen his mandate.”

The issue of whether Hor Namhong and the other officials can claim immunity if the court seeks to compel their testimony is still unclear, Heindel added.

“The other international courts generally don’t find that government officials have immunity,” Heindel said. “One important issue is how international this court is, but even if this is a strictly Cambodian court, I don’t think that it’s clear that they have immunity.”

You Bunleng said Tuesday that he had not joined Lemonde in summoning the six officials because he did not believe their testimony was necessary in light of other evidence gathered by the Office of the Co-Investigating Judges (OCIJ).

“The OCIJ has already interviewed many witnesses, so there is no need for these people to come,” You Bunleng said.

Lemonde and You Bunleng have also registered disagreement over the timing of investigations in the court’s third and fourth cases, according to documents made public last week. Lemonde has signed a rogatory letter authorising preliminary investigations in the cases. You Bunleng signed the letter, but changed his mind, saying that the OCIJ should wait to consider this issue until indictments or dismissals have been issued in the second case.

Lemonde is currently going forward on his own with the investigations, UN court spokesman Lars Olsen said last week. Within 30 days from the disagreement, however, You Bunleng may choose to bring the matter to the court’s Pre-Trial Chamber for arbitration.

You Bunleng said Tuesday that he had “not yet considered whether to file a complaint about the disagreement to the Pre-Trial Chamber”.