Support Unlikely for Blocking Tribunal Indictments

By Sok Khemara, VOA Khmer
Original report from Washington
02 September 2009

Cambodian judges will be unlikely to find enough support from their international counterparts to block further indictments of Khmer Rouge leaders, observers and court officials say.

The question of more indictments has prompted Cambodian leaders like Prime Minister Hun Sen to warn of instability or war, a position echoed by Cambodian judges.

The Pre-Trial Chamber of the UN-backed court will have to decide on the indictments, which put the UN and Cambodian prosecutor at odds earlier this year.

“There are only three voices, all Cambodian judges, in support of no indictments, and two foreign judges supporting the indictment,” a tribunal observer said. “By law, if there is no super majority, or four out of five voices, the case will continue.”

Observers close to the trial in Cambodia and observing from the US say the issue of further indictments has been complicated by the government’s instance that only five be prosecuted.

The former international prosecutor, Robert Petit, who resigned last month, proposed six more indictments earlier this year. The motion was blocked by his counterpart, Chea Leang, who echoed Hun Sen’s warnings.

It has taken seven months so far for the Pre-Trial Chamber to attend to the indictment question, and in recent weeks the judges of the chamber have been unable to resolve it.

If the indictments are moved past the prosecutors’ office, they will move to the investigating judges, where they could face further complications, observers said.

There is concern that the investigating judges will not take further action, such as arrests or investigation, as they may claim they are putting their priorities toward investigating Case No. 002, of four senior leaders currently in custody.

A tribunal expert in Cambodia said that a disagreement between the investigation judges, again decided on by the Pre-Trial Chamber, must by law be done publicly, not behind closed doors, as the current decision is. That will mean, at least, the names of the six will be public.

Impact of More Tribunal Indictments Surveyed

By Kong Sothanarith, VOA Khmer
Phnom Penh
24 January 2009

While national and international prosecutors remain at odds over further indictments of Khmer Rouge leaders, the Documentation Center of Cambodia last week began a survey among Cambodians to find out what they think.

The survey, which will last one month, asks seven questions of ordinary citizens related to their general knowledge of the ongoing Khmer Rouge tribunal and whether they feel it should indict more cadre of the regime.

“The stance of DC-CAM is to allow victims to play a role and show their decision on whether the tribunal should try five persons or more than five persons, and then we allow them an expression of their views,” said Chy Terith, team leader of the center’s Victims Participation Project. “The outcome of the survey will be published publicly and submitted to the [tribunal] also. It is a voice from victims for the tribunal.”

The tribunal is holding five aging former leaders of the regime: chief ideologue Nuon Chea, 84; nominal head Khieu Samphan, 76; foreign minister Ieng Sary, 84; social affairs minister Ieng Thirith, 67; and prison chief Kaing Kek Iev, 66.

The survey seeks to learn what the potential repercussions of further indictments—of up to 10 subordinates of the currently jailed leaders—would be.

“We will ask them also if the tribunal tries only five persons, will they have justice or not,” Chy Terith said.

The survey will be distributed by 15 survey team members in several provinces, as well as by e-mail. The survey will not be conducted in the former Khmer Rouge redoubts of Pailin and Anlong Veng.

International prosecutors at the tribunal have argued for more indictments, but national prosecutors disagree.

The decision on whether more will be arraigned must now be decided by Pre-Trial Chamber judges, who have not set a hearing, tribunal spokesman Reach Sambath said.

It was “too early” to comment on the Documentation Center survey, he said, but “all kinds of evaluations will be taken under consideration by the courts.”

How many are too many defendants at the KRT?

The Cambodian co-prosecutor at the Extraordinary Chambers, Chea Leang, who has moved to block any expansion of the trial docket. (Photo by: TRACEY SHELTON)

Thursday, 08 January 2009
Opinion by David Scheffer
The Phnom Penh Post

Try a reasonable number limited by long-term resource availability

THERE was a steady drumbeat from the beginning of the negotiations in 1997 that the ECCC would focus on "senior Khmer Rouge leaders" and those "most responsible" for the atrocity crimes of the Pol Pot regime. The Cambodian, UN and American negotiators never limited the pool of suspects to be charged and brought to trial to five or six individuals, although it was no secret that some Cambodian officials desired a small number, which would exclude current government and military officials. Yet there was no serious negotiation expressly to embrace that Cambodian view as that would have been an intolerable position for the non-Cambodian negotiators to accept and it would have fatally undermined the integrity of the court. In my own many long negotiations with Cambodian and UN authorities, negotiators typically spoke of up to 15 or so individuals ultimately being prosecuted. We were very aware of much higher numbers being proposed by researchers and domestic and international nongovernmental organisations. UN negotiators at times spoke of 20 to 30 potential defendants, but within the negotiations we knew and expressed a more likely maximum figure of 15 or so candidates for prosecution. We knew that resource constraints and political realities, as well as aging individuals, would keep the number on the relatively low end, but not so low as to be de minimis.

No literal definition

As negotiators and drafters, we never tried to establish a literal definition of "senior leaders and those most responsible" as that would have been a foolhardy exercise. In fact, it was UN and US negotiators who pressed for a high bar of "those most responsible" rather than a Cambodian preference for the broader category of "those responsible" at one critical late stage in the negotiations. One effort to raise the bar even higher to "those with the greatest responsibility", which had just been negotiated for the Statute of the Special Court for Sierra Leone in mid-2000, was rejected in favor of the long-standing and somewhat broader concept of "those most responsible".

What is transpiring now between the co-prosecutors and their filing with the Pre-Trial Chamber was anticipated in the negotiations and strikes me as demonstrating that the ECCC is working its will as it was designed to do. I actually am encouraged that the process is being tested, although the publicly-expressed discretionary statements of the Cambodian co-prosecutor would give any judge pause to consider the purpose behind the objection. The two primary reasons negotiators thought the co-prosecutors might disagree would be either 1) based on the merits of any particular individual being charged, or 2) because one of the co-prosecutors appears politically influenced and the other seeks the ruling of the Pre-Trial Chamber to ensure the integrity of the ECCC. Obviously, during the negotiations concerns about political influence were dealt with delicately, but everyone knew we were building a dispute settlement mechanism to overcome either a merits or political disagreement if either ever occurred. The real test is not the actual filing by the co-prosecutors, which the court is designed to accommodate, but whether the judges in the Pre-Trial Chamber step up to the plate and do their duty with the highest degree of judicial integrity. We can all assess that when their decision is rendered.

"...accept the same compromise that the negotiators did, namely, not too few defendants and not too many. "

Better for donors

Ultimately, expanding the number charged from five to 10 or 15 individuals probably would make the case for long-term financial support of the ECCC easier to advocate because it would demonstrate the integrity and credibility of the court. That is the key that unlocks the international money, not some argument that the number of defendants must be limited to satisfy a domestic political agenda. Once political intrigue or corruption swamps the court's work, the international money will dry up very fast and completing the trials of the original five defendants will become much more difficult to finance and properly staff.

The solution to this latest episode in the ECCC's history is for each side of the debate to accept the same compromise that the negotiators did, namely, not too few defendants and not too many, but a reasonable number limited by long-term resource availability and a reasoned application of the requirement that defendants be "senior leaders of Democratic Kampuchea and those who were most responsible" for the atrocity crimes of the Pol Pot regime. I am hopeful that the judges will see it that way too.

Sacrava's Political Cartoon: Le Petit ("The Small Guy")

Chea Leang: "In Cambodia, I'm the Biggest one, and you are 'Small'" (Petit in French means Small in English)

Cartoon By Sacrava (on the web at http://sacrava.blogspot.com)

No more KR suspects: Chea Leang, Sok An's niece

Cambodian prosecutor Chea Leang (L) and Sok An, her powerful CPP uncle

No more KR suspects: Cambodian prosecutor

Tuesday, 06 January 2009
Written by Brendan Brady
The Phnom Penh Post

The Extraordinary Chambers’ Chea Leang breaks her silence on why the court must not seek to bring more ex-KR leaders on the docket

PUTTING more former KR leaders on the docket would contradict the original mandate of the Khmer Rouge tribunal, overstretch its duration and budget, and undermine national stability and reconciliation, according to Cambodian co-prosecutor Chea Leang, whose reasoning against expanding the trials was made public for the first time on Monday.

Since late last year, Chea Leang and her international counterpart, Robert Petit, have been at loggerheads over whether to submit more suspects for investigation - beyond the five former Khmer Rouge leaders currently detained.

"She feels that this court should instead prioritise the trials of the five suspects already detained," especially since, according to her, the tribunal's mandate "envisioned only a small number of trials", said a statement from the UN-backed tribunal released Monday.

"She maintains that this Court's mandate can be adequately filled by the prosecution of the suspects already detained," it added.

Chea Leang, who could not be reached for comment Monday, had filed her arguments December 29 to the tribunal's Pre-Trial Chamber in response to a "statement of disagreement" lodged earlier in the month by Petit after the pair failed to agree on his proposal to add additional suspects. While Petit has refused to confirm any figures, sources close to the court say that six additional former regime members have been targeted.

"There is a difference in our interpretation of what this court is about," Petit told the Post Monday, although he insisted the disagreement has not delayed ongoing investigations at the tribunal.

Expanding the docket would help the court fulfill its mandate, he said, adding: "The stability of any society can only be enhanced by improved accountability".

Petit acknowledged that expanding the docket presented "legitimate" financial concerns but was confident the move "would be supported by donors".

Long Panhavuth, program coordinator for the legal watchdog Cambodian Justice Initiative, said, "Expanding the number of suspects will improve the integrity and independence of the court, and that will attract more donor funds".

The group has urged the Cambodian side of the court to demonstrate its independence by allowing further investigation in the face of government fears that a wider roundup could expose current leaders to scrutiny.

ECCC co-prosecutors butting heads against each other on the possibility of launching additional prosecutions

Chea Leang (L) and Robert Petit (R)

05 Jan 2009
By AN
Cambodge Soir Hebdo
Translated from French by Tola Ek
Click here to read the article in French

One of the co-prosecutors said that he is ready to initiate legal investigations against other suspects for crimes committed under the KR regime, the other categorically refuses to go along.

More prosecutions or not? The situation is at a standstill at the KR Tribunal. A communiqué was distributed on Monday 05 January providing details on the position taken by each of the two ECCC co-prosecutors.

[Robert Petit,] the International co-prosecutor, has proposed the filing of two new Introductory Submissions and one Supplementary Submission as there are reason to believe that “the crimes described in those submissions were committed, and these crimes are within the jurisdiction of this Court.” He also added that “he does not believe that such prosecutions would endanger Cambodia’s peace and stability.”

His Cambodian colleague, [Chea Leang,] is of the opposite opinion. She does not wish to see other people being charged as she promotes the “national reconciliation” process, and also because of “the spirit of the agreement between the United Nations and the Government of Cambodia.” Finally, she prefers that the Court should instead prioritize the trials of the five suspects already detained because of the tight budget available for the KRT.

The outcome is important as it reflects two visions for the trial of the former KR members. On one side is the vision supported by Westerners which favors the widening of the number of additional prosecutions, and on the other side, the Cambodian vision which never hides its lack of enthusiasm in such proceeding.

ECCC Co-prosecutors arguments for and against the inclusion of additional suspects in the KR crimes

International co-prosecutor Robert Petit (L) and National co-prosecutor Chea Leang (R) (Photo: John Vink/Magnum)

Extraordinary Chambers in the Courts of Cambodia
Office of the Co-Prosecutors

5 January 2009

STATEMENT OF THE CO-PROSECUTORS

On 29 December 2008, the National Co-Prosecutor filed her Response with the Pre-Trial Chamber to the International Co-Prosecutor’s Statement of Disagreement, which was filed on 1 December 2008. The disagreement concerns the appropriateness of opening new judicial investigations against certain additional suspects for crimes committed under the Khmer Rouge. The Statement of Disagreement and the Response contain reasons justifying the two Co-Prosecutors’ positions in favor of charging or not charging these suspects.

The International Co-Prosecutor has proposed the filing of two new Introductory Submissions and one Supplementary Submission as, according to him, there are reasons to believe that (1) the crimes described in those submissions were committed, (2) these crimes are within the jurisdiction of this Court, and (3) they should be investigated by the Co-Investigating Judges. He believes that this last set of cases to be prosecuted by this Court would lead to a more comprehensive accounting of the crimes that were committed under the Democratic Kampuchea regime during 1975-79. He does not believe that such prosecutions would endanger Cambodia’s peace and stability.

The National Co-Prosecutor believes that these investigations should not proceed on account of (1) Cambodia’s past instability and the continued need for national reconciliation, (2) the spirit of the agreement between the United Nations and the Government of Cambodia (“Agreement”) and the spirit of the law that established this Court (“ECCC Law”), and (3) the limited duration and budget of this Court. She feels that this Court should instead prioritize the trials of the five suspects already detained, especially when, according to her, the Agreement and the ECCC Law envisioned only a small number of trials. She maintains that this Court’s mandate can be adequately fulfilled by the prosecution of the suspects already detained.

The Co-Prosecutors are issuing this statement pursuant to Internal Rule 54 to ensure that the public is duly informed of ongoing ECCC proceedings. They now await the determination of this disagreement by the Pre-Trial Chamber. This adjudicatory process is, by law, confidential. Notwithstanding this disagreement, the Co-Prosecutors have been and shall continue to work together, in all their cases, to ensure that justice is rendered to the victims of the Khmer Rouge.

- End -

KRT prosecutors at impasse

All in the CPP family: Chea Leang (L) and her powerful CPP uncle, Sok An

Wednesday, 31 December 2008
Written by Brendan Brady
The Phnom Penh Post

With the first trial of former Khmer Rouge leaders expected in early 2009, prosecutors clash on whether to add new suspects to the tribunal's docket

CHEA Leang, Cambodia's co-prosecutor to the Kingdom's Khmer Rouge tribunal, has reaffirmed her opposition to investigating more potential defendants, her foreign counterpart Robert Petit said Tuesday, setting the stage for further possible delays to the war crimes court.

Chea Leang filed a response at the tribunal's Pre-Trial Chamber to Petit's own "statement of disagreement" lodged earlier this month after the pair failed to agree on Petit's proposal to submit more suspects for investigation.

While Petit has refused to confirm any figures, sources close to the court say that six additional former regime members have been targeted.

Chea Leang could not be reached for comment on Tuesday, but Petit said their difference of opinion was "significant ... [and] fundamental".

"We're going ahead with the disagreement procedure," Petit told the Post.

He said, however, the rebuff by his counterpart would not change his mind. "I proceeded ... because I believed there was evidence [to try additional suspects] and it's in our mandate to do so," he said.

While he was "not optimistic" he could reach an agreement with Chea Leang on his own, he said they would "continue to speak regularly and cooperate".

Even as the Pre-Trial Chamber has no timeline for resolving the impasse, court officials insisted it would not delay the legal proceedings of the five former regime leaders in custody.

Reach Sambath, spokesman for the Cambodian side of the hybrid court, said the disagreement would not affect the substance or timing of the current docket since the pretrial and trial proceedings are presided over by a different team of judges.

Spokeswoman Helen Jarvis said the disagreement was inherent to the tribunal's evolution. "You can't expect everyone to have the same point of view," she said.

Meanwhile, legal observers like Open Society Justice Initiative have urged the Cambodian side of the court to demonstrate its independence by allowing further investigations to begin.

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

Justice, Interrupted

Cambodia's Khmer Rouge tribunal risks becoming a sham.

Sunday, December 14, 2008
By JAMES A. GOLDSTON The Wall Street Journal (USA)
No court can be considered legitimate if its judges and prosecutors submit to political diktat. 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.

The Court, called the Extraordinary Chambers in the Courts of Cambodia, has indicted a mere five people for the murder of close to two million between 1975 and 1979. Last week, the court's international co-prosecutor, Robert Petit, proposed that an undisclosed number of additional suspects be formally investigated -- a prelude to indictment. According to a Dec. 8 press release from Mr. Petit's office, his local counterpart, co-prosecutor Chea Lang, opposed the move. Because the process for resolving disputes between prosecutors is confidential, Ms. Lang's reasons for opposing additional investigations are unknown.

Mr. Petit has filed a formal "statement of disagreement" indicating his commitment to press ahead with additional charges. Under the Court's complicated structure, he can do this if authorized by the pre-trial chamber, an organ of the Court responsible for overseeing proceedings prior to trial and resolving disputes between co-prosecutors and co-judges. Prime Minister Hun Sen has in the past suggested that trying "four or five" people would be enough. Although most Cambodian officials today say that the government would not limit the number of people charged, the attitude persists that trying more people might be detrimental or destabilizing. Absent agreement between the two co-prosecutors, the Court's judges will be asked to resolve the dispute.

If ever there was a moment to show that the Court is not a tool of the Cambodian government, this is it. Unfortunately, court rules provide that this issue must be addressed out of public view. All should understand, however, that the court's very legitimacy to Cambodians and the international community is at stake. The Court must operate as transparently as possible in the coming days.

That will be difficult, given that the Court is the product of 10 years of negotiation between the U.N. and the Cambodian government. As a hybrid court, it has an awkward structure. The international and domestic co-prosecutors and co-investigating judges must agree before proceeding on major decisions. Where consensus cannot be achieved, a "super-majority" composed of at least one international judge is required for most significant action. This fragile arrangement has given rise to much skepticism about the Court's capacity to reverse a long Cambodian history of improper interference in judicial operations.

In the past year, too, serious allegations of corrupt employment practices on the Cambodian side of the court have emerged. The U.N. investigated the matter in September, but did not release its findings. A pervasive lack of openness at the Court has not helped. This is an especially serious situation as any forthcoming judgments will be potentially vulnerable to crippling legal challenges.

Yet the Court's greatest challenge by far is the new roadblock preventing further prosecutions. It has long been suggested that the limitation of charges to the five accused -- all former Khmer Rouge members, unconnected to any current senior government figures -- was a central part of the "unwritten bargain" that led the government to accept the Court. A number of senior figures in the current government apparently fear the potential consequences of establishing a model of transparency and accountability that might be applied more generally. Given the scale of the crimes and the breadth of criminal responsibility, any judicial process that arbitrarily narrows its focus to only those individuals would be a sham.

It is time for the donor governments that support the Court -- including Japan, France and the U.S., which recently pledged its first contribution -- to insist that the Court operate as a court of law. Anything less would be a betrayal of the memory of two million dead and numerous others who endured physical and psychological wounds. Both the victims of the Khmer Rouge and the next generation of Cambodians deserve an honest, judicial accounting of one of the worst atrocities of the 20th century.

Mr. Goldston is the executive director of the Open Society Justice Initiative, which provided advice and technical assistance during some early stages of the tribunal.

Tribunal Prosecutors Differ on Added Suspects

Tribunal judges will determine whether more suspects should be investigated.

By Sok Khemara, VOA Khmer
Original report from Washington
10 December 2008

Click here to listen to the Khmer audio program

Cambodian and international prosecutors at the Khmer Rouge tribunal disagree on a plan to investigate and charge more than the currently five jailed leaders of the regime, officials said.

International prosecutor Robert Petit would like to investigate as many as six more suspects, a plan that was vetoed by his Cambodian counterpart, Chea Leang, a source close to the tribunal process said.

“This disagreement rests upon the appropriateness of opening new judicial investigations into crimes committed in various locations throughout Cambodia by certain persons considered to be senior leaders of the Khmer Rouge or persons most responsible for crimes under that regime,” the co-prosecutors said in a statement.

No new suspects or charges have been announced beyond the five already in jail, including prison chief Kaing Kek Iev, whose trial is expected to begin early in 2009.

The Pre-Trial Chamber of the courts will now have to rule over the discrepancy, tribunal spokesman Reach Sambath said.

The disagreement comes as the tribunal faces delays in getting five leaders already in jail to trial and charges of corruption and mismanagement.

UN Assistant Secretary-General for Legal Affairs Peter Taksoe-Jensen arrived in Cambodia Sunday to discuss the functioning of the courts with senior Cambodian officials.

Prosecutor dispute at Khmer trial

Tuesday, December 09, 2008
By Guy de Launey
BBC News, Phnom Penh

The government's enthusiasm for the tribunal has often been questioned

Disagreements have arisen at the Khmer Rouge tribunal in Cambodia over whether more people should be investigated.

The UN-appointed prosecutor asked judges to intervene after he and his Cambodian counterpart were unable to move forward.

It is the first time that international and Cambodian officials have had a public disagreement since the tribunal started two years ago.

The court is looking into the deaths of some two million people in the 1970s.

The filing of an official "statement of disagreement" suggests the tribunal may have a serious problem.

Five former Khmer Rouge leaders are in custody awaiting trial on charges of crimes against humanity.

And international co-prosecutor Robert Petit believes several more people should be investigated.

But he has been unable to convince his Cambodian colleague, Chea Leang. And asking the judges to intervene indicates that any attempts to reach a compromise have failed.

Embarrassment

There has always been the potential for the tribunal to hit such a problem.

Although it is backed by the United Nations, it is actually a Cambodian court. And the government's enthusiasm for the process has frequently been called into question.

Many senior figures in the current administration were themselves formerly members of the Khmer Rouge.

And as the number of prosecutions rises, so does the chance of embarrassment - or worse - for people in high places.

But organisations monitoring the tribunal have said that proceeding with more cases is vital for the court's credibility.

KRT co-prosecutors disagree with each other over the pursuit of addditional KR defendants

Phnom Penh (Cambodia) 20 November 2006. Co-prosecutors Robert Petit and Chea Leang during the plenary session of judges for the KR Tribunal (Photo: John Vink/Magnum)

Extraordinary Chambers in the Courts of Cambodia
Office of the Co-Prosecutors

8 December 2008

STATEMENT OF THE CO-PROSECUTORS

On 1 December 2008, in accordance with Internal Rule 71(2) of this Court, the International Co-Prosecutor filed a Statement of Disagreement between the Co-Prosecutors and forwarded it to the Office of Administration for adjudication by the Pre-Trial Chamber. This disagreement rests upon the appropriateness of opening new judicial investigations into crimes committed in various locations throughout Cambodia by certain persons considered to be senior leaders of the Khmer Rouge or persons most responsible for crimes under that regime. The Office of the Administration has since seized the Pre-Trial Chamber of this disagreement for adjudication. It has also forwarded the case files to the Pre-Trial Chamber.

Preliminary investigation of the Co-Prosecutors and adjudication by the Pre-Trial Chamber of disputes between them are, by law, confidential. This is to uphold presumption of innocence, protection of victims and witnesses and, above all, the integrity of the investigative process.

The Co-Prosecutors shall strive to achieve a consensus throughout the process of a judicial determination of this disagreement. Regardless of this disagreement, the Co-Prosecutors have been and shall continue to work together, in all their cases, to ensure that justice is rendered to the victims of the Khmer Rouge.