Defying both Phnom Penh’s political leaders and his own Cambodian co-judge, UN-backed Swiss judge Laurent Kasper-Ansermet plows ahead with controversial investigations into five more Khmer Rouge suspects.
Robert Carmichael, Phnom Penh
It has been a long time coming, but this week brought the news that one of the two co-investigating judges at the Khmer Rouge tribunal has begun examining allegations against the tribunal’s final five suspects.
Local media reported that Laurent Kasper-Ansermet, the Swiss co-investigating judge whose controversial predecessor quit in October, had started informing the five that they are formally under investigation by the United Nations-backed court.
The Cambodian government strenuously opposes the two cases, and most national staff at the hybrid court have refused to do any work on them.
Anne Heindel, a legal adviser with the genocide research organization DC-Cam, said news that Kasper-Ansermet had started his investigation into the two stalled cases was “critical for the court’s legitimacy”.
Heindel said court rules ensure that the Office of the Co-Investigating Judges – which is jointly headed by Kasper-Ansermet and his Cambodian counterpart You Bunleng – had “no choice” but to investigate.
Its previous failure to do so was in breach of its mandate.
“The court has not been following its own rules and procedures, and this is what the debate has been over these cases,” she said.
“This is the first time that these sites are being visited, and people are being visited,” Heindel said. “These are steps that have to be taken. And it’s extremely important that he is notifying the accused of their rights.”
The news will go down less well with Phnom Penh. Prime Minister Hun Sen and other senior officials have repeatedly said that trying the five suspects – who together constitute Cases 003 and 004 – was “not permitted”, citing the risk of civil war.
Observers believe that is unlikely. Hun Sen’s ruling Cambodian People's Party so thoroughly controls the levers of power that the idea that five elderly former revolutionaries could undermine the nation is remote.
Far more likely is that some influential politicians fear the longer the court investigates crimes of the Khmer Rouge period, the greater the chances that they could be exposed as potential war criminals.
“Just followed orders”
The tribunal says as many as 2.2 million people died during the Khmer Rouge’s brutal 1975-79 rule.
The prosecution believes that the three suspects in Case 004 – all of whom were mid-ranking ex-Khmer Rouge – were cumulatively responsible for nearly 250,000 deaths.
One of the suspects in Case 004 told the Cambodia Daily newspaper she was not concerned at the prospect of a trial.
(The names of all five suspects have been widely published inside and outside Cambodia, but as those in Case 004 are under investigation, RNW has chosen not to name them.)
“I was just an underling who followed orders, not a head of state,” said the 66-year-old former district chief.
“I don’t need a court to judge me, and Prime Minister Hun Sen has already told the public that the tribunal is just for hearing cases 001 and 002,” she said, referring to the court’s first two trials.
Complicating matters for Kasper-Ansermet is that the Cambodian government and You Bunleng have refused to recognize him, and have said that any work he does is invalid.
But the United Nations insists that the Swiss judge, whose appointment a year ago as reserve judge the government endorsed, is fully entitled to carry out his work because his ascent to the post of co-investigating judge followed automatically from the October resignation of his predecessor, Siegfried Blunk.
Blunk quit after months of accusations that he and You Bunleng deliberately scuppered the Case 003 investigation after they closed it without interviewing the suspects or most witnesses, and without visiting any of the crime sites. They were believed to be doing much the same in Case 004.
DC-Cam’s Heindel said the rules of the court were not designed to cope with problems of this magnitude: the national co-investigating judge refusing to recognize his international counterpart; and the Pre-Trial Chamber – the body of five judges that rules on disputes on cases that have yet to go to trial – in serious disarray.
Heindel said the UN and the government needed to sit down and thrash out a solution or the process would simply get more tangled.
“Unless the diplomatic impasse is broken, the court will descend again into farce – and that’s assuming it’s moved out of farce,” she said.
Funding remains the other critical problem. In recent weeks several donors have announced cash for the court, but their pledges have fallen short of what the Tribunal actually needs.
Meanwhile, the hearings in Case 002 will resume on Monday after a three-week break, with more evidence expected against the three surviving leaders of the Khmer Rouge: 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.
The defendants, who are in their 80s, have been accused of responsibility in the deaths of up to 2.2 million people from execution, starvation, disease and overwork. They deny charges of genocide, crimes against humanity and war crimes.