Relations between key staff at the Khmer Rouge tribunal continued to plumb new depths this week after the UN’s reserve co-investigating judge announced he would reopen the investigation into the court’s controversial third case.

By: Robert Carmichael in Phnom Penh

Swiss national Laurent Kasper-Ansermet said Thursday that his Cambodian counterpart You Bunleng and Kasper-Ansermet’s predecessor Siegfried Blunk, who quit in October, were wrong to close Case 003 last April without bothering to interview the two suspects or most of the witnesses.

“The judicial investigation conducted so far appears to be defective and prejudicial to all parties,” Kasper-Ansermet wrote, adding that the co-investigating judges’ actions had “deprived suspects, victims and the prosecution of their rights”.

He said it was “in the public interest” to reopen Case 003.

Kasper-Ansermet’s position was laid out in a no-holds barred document dated 2 December, but which was made public only on Thursday.

In that document he also appeared to confirm what has long been rumoured at the tribunal: that the Office of the Co-Investigating Judges stuffed the case file with hundreds of pages of documents in the days and weeks before closing Case 003.

Controversial Case 003

The UN-backed court operates within Cambodia’s civil law system. As such it is up to the two co-investigating judges – one Cambodian, one international – to investigate the prosecution’s allegations against the suspects, and then decide whether or not there is sufficient evidence to bring a case.

The two suspects in Case 003 are senior military officers in the Khmer Rouge. One was the head of the air force; the other commanded the navy. However Cambodian Prime Minister Hun Sen has long said neither will go to trial.

Hun Sen has also said the tribunal’s final investigation – Case 004, involving three more former Khmers Rouges – will also never reach court.

Many observers believe Blunk and You Bunleng buckled to political pressure when they controversially closed Case 003 in April after a shoddy investigation.

The following month international co-prosecutor Andrew Cayley appealed that decision, explaining that: “A significant amount of investigation is still left to be done in that case.”

Despite Cayley’s formal request that the co-investigating judges do more work, they refused.

Kasper-Ansermet said they were wrong to do so.

“The rejection of the 18 May 2011 requests for investigative action may be regarded as a ‘refusal to investigate’, which is a breach of their duty,” he wrote. “The decision is not in the interests of justice as it is demonstrably prejudicial to all parties to the proceedings.”

Kasper-Ansermet also complained about the senior Cambodian judge in the Pre-Trial Chamber – the body that rules on disputes in cases before they reach trial – saying the actions of Judge Prak Kimsan had raised “serious concerns about (his) lack of impartiality”. He called on Prak Kimsan to recuse himself from all decisions relating to Case 003 and Case 004.

You Bunleng strikes back

The announcement clearly infuriated Cambodian co-investigating judge You Bunleng. On Friday he hit back with his own statement in which he said his international counterpart had revealed “ill intentions” and his intent to “confuse public opinion”.

You Bunleng added that since the government’s judicial appointments body had rejected Kasper-Ansermet for the role of international co-investigating judge, the Swiss national had no right to get involved in anything.

For that reason, he said, “the seat of the International Co- Investigating Judge is still vacant”.

You Bunleng also laid into Kasper-Ansermet’s “obstinacy and disrespect of the law”, adding that his statement “furthers the doubt … regarding Mr Ansermet’s (sic) professionalism – is he a judge or a press officer?”

Present imperfect

Quite where this leaves matters at the court is unclear. Under Kasper-Ansermet the international side of the investigations office has been trying to recruit Cambodian investigators after You Bunleng got rid of his team at the end of last year.

But given what happened this week it seems likely that international investigators will now continue their work on Case 003. Whether the government will tolerate that is another matter.

Clair Duffy, who monitors the tribunal for the Open Society Justice Initiative, said the week’s events had made it abundantly clear that the government and the UN “are at complete loggerheads” over the status of Kasper-Ansermet, with You Bunleng aligning “as expected” with the government.

Duffy said the situation was “highly problematic” for the investigations of Cases 003 and 004.

“But whether or not that is worse than it has always been remains to be seen,” she said, adding that from a legal point of view Kasper-Ansermet “has full authority to do what he is doing”.

“From a practical point of view I guess we will see what happens,” she said.

Duffy said the decision to reopen Case 003 was encouraging since it marked the first time that a decision by a co-investigating judge on that case “was backed up by facts in law”.

“So at best I think it would be good for the court if Judge Kasper-Ansermet was able to restore some credibility in those investigations, but of course that’s going to be largely dependent on the government’s cooperation on this,” she said. “And at some point he’s going to require practical cooperation.”

Ongoing

Meanwhile, Case 002 continued at the court this week, with evidence being heard against three surviving leaders of the Khmer Rouge. Their trial has been described as the most complex since the Nazi trials at Nuremberg after World War II.

The elderly defendants deny charges of genocide, crimes against humanity and war crimes, and stand accused of responsibility in the deaths of up to 2.2 million people from execution, starvation, disease and overwork.

The defendants, who are in their 80s, are: Nuon Chea, who is known as Brother Number Two and was the deputy to the movement’s late leader Pol Pot; ex-head of state Khieu Samphan; and former foreign minister Ieng Sary.

Earlier this month the appeal chamber jailed for life the Khmer Rouge’s security chief Comrade Duch – the sole accused in Case 001 – for his role in the deaths of at least 12,272 people when he ran the secret S-21 prison in Phnom Penh. The increased sentence followed Duch’s appeal against his 35-year term that the lower chamber issued in 2010.