Judges at Odds Over Future of War Crimes Investigation
By | March 3, 2013

The Office of the Co-Investiga­ting Judges at the Khmer Rouge tribunal on Thursday issued a joint statement about the future of Case 003, which, in just three pages, underscored the breadth of difference between Cambodian Judge You Bunleng and his international counterpart, Judge Mark Harmon. 

Yesterday’s statement on the investigation of the crimes in Case 003 was unique, and ex­posed the professional polarities between Judge Bunleng and Judge Harmon.

Judge Bunleng insists in the statement that no further evidence for Case 003 needs to be gathered, and that his investigation is done. His colleague, Judge Harmon, states that the case is continuing at full throttle, and calls on witnesses to come forward with information about a long list of sites where crimes against humanity were perpetrated during Pol Pot’s bloody 1975 to 1979 regime.

Judge Bunleng cites, in his section of the statement, the previous closure of investigations in Case 003 in April 2011 by himself and his then-international counterpart, Co-Investigating Judge Siegfried Blunk.

Their attempted closure of Case 003 was widely criticized, and only averted by the reopening of investigations by Judge Blunk’s re­placement, Swiss Judge Lau­rent Kasper-Ansermet.

Case 003, which pertains to war crimes committed by Khmer Rouge commanders in the then navy and air force, is vociferously opposed by senior government officials, including Prime Minister Hun Sen, who claim that widening the scope of the war crimes in­vestigation could threaten the stability of the country.

In giving notice of his continued investigation of Case 003, Judge Harmon, who started work in Oc­tober, invoked in the statement yesterday the court’s Internal Rule 21(1)(c), which states that the “ECCC shall ensure that victims are kept informed and that their rights are respected throughout the proceedings.”

To that end, Judge Harmon lists in the statement Case 003’s nine crime sites: the S-21 Secur­ity Center, Phnom Penh; Stung Tauch execution site, Ponhea Krek district, Kompong Cham province; the Kompong Chhnang Airport Construction Site; Division 801 Security Center, Veun Sai district, Ratanakkiri province; Stung Hav Rock Quarry worksite, Preah Sihanouk province; Wat Enta Nhien Security Center and execution site (also known as Wat Kroam), also in Preah Sihanouk province; the S-22 Security Center, in Phnom Penh’s Meanchey Dis­trict; a durian plantation in Prey Nop district, Preah Sihanouk; and the Bet Trang worksite, also in Prey Nop district.

Judge Harmon also called for po­tential witnesses, civil parties to the case and complainants to come forward and make themselves known to the investigators and court.

In his statement, Judge Harmon said he “wishes to clarify that Case 003 remains open and the investigation of the alleged crimes are proceeding.”

Case 003’s two foremost suspects, Khmer Rouge-era air force chief Sou Met and navy chief Meas Muth, are accused of having committed war crimes and crimes against humanity during the Dem­o­cratic Kampuchea re­gime. Though they have re­quested legal representation from the court, neither of the suspects has been formally charged.

Both Judge Bunleng and Judge Blunk previously argued that the two Khmer Rouge commanders did not fall under the court’s jurisdiction, as they were neither sen­ior leaders nor those most re­sponsible for crimes committed during the regime.

“To safeguard the interests of the parties and the victims of the [Revolutionary Army of Kampu­chea], D.K. Navy, and D.K. Air Force, the International Co-In­vestigating Judge will continue to keep the public informed about the proceedings in Case 003,” Judge Harmon added.

As government-opposed Case 003 has meandered sluggishly through the war crimes court, it has exposed gaping differences be­tween the national and international components of the hybrid court.

Judge Bunleng and Judge Blunk were reluctant to investigate the case fully, and eventually dropped it. Judge Blunk then re­signed in October 2011 citing po­litical interference in his work. Judge Blunk’s successor, Judge Kasper-Ansermet, re-opened in­vestigations into Case 003, but Judge Bunleng did not recognize the order, and his jurisdiction to investigate Case 003 was never recognized by the Supreme Coun­cil of the Magistracy—the country’s highest legal body.

Judge Harmon’s entrance at the court was much smoother, and in December he issued a statement announcing that he would investigate additional crime sites in the second investigation, Case 004, that is opposed by government officials.

Yesterday’s statement was the first joint release to be issued by the Office of the Co-Investigating Judges since August 2011, when Judge Blunk was still in his position.

With one statement laying bare all that is different between the two in­vestigating judges, Anne Heindel, a legal adviser for the Documenta­tion Center of Cam­bo­dia, said it gave mixed messages to the public.

On the one hand, she said, “in the past, they have not filed statements together, so this is the first one they have filed jointly so it’s a sign they are working cordially.”

It is “extremely positive” that the statement was issued jointly, despite its glaring differences, Ms. Heindel said.

“Telling the public what is go­ing on is the main point,” she said. “Since Kasper-Ansermet left, people didn’t know if the case was open or not.”

Legally, Ms. Heindel said, she in­terprets the case as staying open, despite Judge Bunleng’s op­position, and said the two judges would have to work to­gether should Judge Harmon decide to press ahead with making arrests in Case 003 or laying charges in the future.

“It’s problematic because it shows the national side is still un­willing to pursue cases 3 and 4,” she said. “We can hope that dispute procedures will mean investigations move forward [in Case 003]. It’s been years bouncing around and nothing has happened.”

In his remarks, Judge Bunleng also alluded to a rift between In­ternational Co-Prosecutor An­drew Cayley—who has repeatedly pushed for Case 003 to be fully investigated—and National Co-Prosecutor Chea Leang.

Deputy Co-Prosecutor William Smith declined to comment on that aspect of the statement.
But in an email, he welcomed Judge Harmon’s stated aim to continue investigations in Case 003.

“We support the continuing in­vestigations because we are of the view that for justice to be done to the victims of the allegations in this case a proper and thorough inquiry must be carried out.”

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