For KRT’s Pre-Trial Judges, Split Decision After Split Decision

The Khmer Rouge tribunal’s Pre-Trial Chamber (PTC) issued yet another split ruling yesterday, marking the sixth time since October that the chamber’s international and Cambodian judges have been completely at odds with each other on politically sensitive issues. On any question connected to the government-opposed cases 003 and 004, it seems, the three Cambodian judges in the chamber simply will not agree with the two UN judges. The PTC, an appellate chamber that hears motions against decisions made before a case goes to trial, has not managed to reach the required supermajority on the merits of any issue since July of last year.

Since then, court observers have become accustomed to seeing this phrase placed prominently in PTC decisions: “Despite its efforts, the Pre-Trial Chamber has not attained the required majority of four affirmative votes in order to reach a decision on the issues raised in the appeal…or even on an approach to deal with the appeal.”

What follows is generally a sparsely reasoned decision by Cambodian Judges Prak Kimsan, Ney Thol and Huot Vuthy, followed by a much longer and more vigorous dissent from international judges Rowan Downing and Katinka Lahuis, who has recently been replaced by Chang-ho Chung.

“It’s clear right now that they are totally split, that whatever comes down the pipe on Case 003 is likely to be a split decision,” said Anne Heindel, a legal adviser to the Documentation Center of Cambodia.

Indeed, all of the six most recent split decisions, dealt with cases 003 and 004 and the attempts made by international court staff to push forward with investigating the cases against Pol Pot-era military officials and district-level cadres.

In yesterday’s split decision the judges of the PTC examined New Zealander Rob Hamill’s appeal against his rejection as a civil party in Case 004, and his lawyer’s request to get access to the case file. The three Cambodians insisted that Mr. Hamill could not become a civil party because no suspects had yet been charged, while the two international judges said Mr. Hamill’s rights had been violated by the Office of Co-Investigating Judges’ failure to communicate with him and his lawyer in a timely manner. They said he should have the right to file another appeal.

According to court rules, if the PTC cannot assemble a supermajority the decision being appealed will stand by default, a mechanism designed to insulate the court from political interference and ensure that cases could move forward if there was any attempt to stall them on appeal.

But that rule did not take into account the opposite possibility: that an international co-investigating judge would work together with his Cambodian counterpart to shut down cases for apparently political reasons.

That possibility became a reality last year when German judge Siegfried Blunk peremptorily closed his investigation into Case 003 without even taking basic steps, and appeared on the verge of doing the same in Case 004 before his sudden resignation in October. His actions led to a string of appeals by British Co-Prosecutor Andrew Cayley and other interested parties, such as Mr. Hamill.

Cambodian-international tensions within the PTC came to a head on Monday, when Judges Chung and Downing released documents detailing how they had been stymied by their Cambodian colleagues late last month, and refused the opportunity to adjudicate on a dispute between co-investigating judges.

Although Reserve Co-Investigating Judge Laurent Kasper-Ansermet had asked the chamber to resolve disagreements he had with his Cambodian counterpart, You Bunleng, the PTC’s Cambodian president, Prak Kimsan, sent back the requests without even allowing his colleagues to consider them.

“It is certainly unprecedented in any of the chambers to have that open of a dispute, and to have any judge in the chambers prevent the chamber as a whole from hearing something, that sort of manipulation and public lack of cooperation,” said Ms. Heindel.

“It seems like the chambers have always gone out of their way to reach consensus until this. This is the issue that cannot be gone around. This is an inherently political issue that cannot be resolved by this court, and the rules are not sufficient to give the chambers powers to be able to deal with a matter like this.”

The clashes are likely to intensify as more and more matters pertaining to the two disputed cases present themselves for adjudication. Currently, Judge Bunleng utterly denies Judge Kasper-Ansermet’s right to work at the tribunal and refuses to deal with him. In an interview on Tuesday, Judge Kasper-Ansermet said that he would likely have to file a disagreement with the Pre-Trial Chamber every time he wanted to make a major decision.

In an essay written for Jurist magazine in December, Nisha Valabhji, the officer-in-charge of the court’s Defense Support Section, flagged the PTC’s string of split decisions as clear evidence of political interference.

“Where such interference manifests itself in judicial decisions which lack legal basis and appear to be written to force particular outcomes, and which, as in three recent opinions of the ECCC’s Pre-Trial Chamber in Case 003, consistently demonstrate a split between the national judges…and the international judges, dangerous and undesirable legal precedents are set in the still-developing field of international criminal law,” she wrote.

Ms. Valabhji said the frequent reversion to the impugned decision caused by the splits was “depriving the parties of the right to a decision on appeal.”

If the perception of political interference in the PTC grows, it could fuel defense attempts to undermine the trial of Case 002. Defense lawyers have already gleefully seized upon the PTC’s first split decision on matters of interference, issued in September 2010, in which international judges said that possible government interference in the tribunal should be investigated-and used it to undermine the case against their clients.

“Obviously another split today, with the national judges following the government line, seems to give rise to an appearance of interference,” said Rupert Abbott, an Amnesty International researcher focusing on Cambodia. “This also raises concerns about the future of Case 002, because with this ongoing political interference there’s a danger that anything the court does it’s going to be tainted, its reputation has been so badly damaged by its failure to reach international standards.”

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