The mass resignation of UN-employed staff at an international tribunal is unprecedented, say observers, and highlights internal concerns about the court’s independence – including whether some of its judges have bowed to political pressure from the Cambodian government.
If steps are not taken to save the reputation of the UN-backed court, it could undermine not only the tribunal's credibility but faith in the international justice system itself.
It is the latest in a series of scandals to rock the UN-backed court in recent weeks as it prepares to bring to trial the four most senior surviving leaders of the regime that presided over the deaths of some 2 million Cambodians between 1975 and 1979.
The embattled Office of the Co-investigating Judges has reportedly lost four of six members of its legal team. Some resigned in protest of what they say was a purposefully flawed investigation into a politically sensitive war crimes case.
In his resignation letter, noted Khmer Rouge historian Stephen Heder characterized the working environment as a "toxic atmosphere of mutual distrust," according to the Cambodia Daily newspaper. He accused judges of ending the investigation into the case “effectively without investigating it.”
Observers say that trial, referred to as Case 002, could be compromised if the court fails to carry out thorough investigations two more cases, which involve another five suspects named in a confidential document obtained by The Christian Science Monitor.
The failure of the court to carry out proper investigations could have implications that reach even further than Case 002, according to Theary Seng, a Khmer Rouge victim who wrote “Daughter of the Killing Fields.”
“It'd be devastating to the confidence and trust of Cambodians, and a blow to international criminal justice,” she says, adding that such a failure could lead to the “embedding of an irreversible cynicism among a people and a society already mired in distrust and paranoia.”
Observers say the controversy surrounding the flawed investigation into Case 003 has seriously undermined the court’s credibility.
Responding to the resignations, the co-investigating judges, You Bunleng and Siegfried Blunk, issued a statement saying they “welcome the departure” of employees who questioned their decision to end the investigation into Case 003.
This doesn't sit well with observer groups, who have pleaded with the UN to step in.
“The UN needs to take immediate steps to inquire into this situation,” says the Open Society Justice Initiative’s Clair Duffy. She called for a probe into alleged political interference as well as “inquiries into whether the judges have breached their legal and ethical obligations.”
The UN has so far refused to take such action. On Tuesday, Secretary General Ban Ki-moon released a statement saying the court “must be allowed to function free from external interference by the Royal Government of Cambodia, the United Nations, donor States, and civil society.”
Did investigating judges cave to government pressure?
But close observers of the court have accused the investigating judges of bowing to pressure by the Cambodian government, which does not want Cases 003 and 004 to proceed. The judges have strongly denied claims that they failed to properly investigate Case 003 because they did not want to turn up evidence that would require bringing the case to trial.
Case 003 involves Khmer Rouge Air Force Commander Sou Met and Navy Commander Meas Mut, who both also held influential political positions within the regime. Despite a detailed case against them prepared by prosecutors, judges failed to summon the suspects for questioning, or even order employees to visit alleged crime sites that may contain mass graves.
Observers fear that judges may also preemptively close the investigation into Case 004, which involves three suspects of a lower rank, but whom International Prosecutor Andrew Cayley argues may still fall under the court’s jurisdiction.
Document names suspects
According to a confidential court document, the suspects are Ta Tith and Ta An, both deputy secretaries, or second in command, to Khmer Rouge officers who controlled geographical “zones” where massacres took place. Ta An’s commanding officer, Ta Mok, nicknamed “The Butcher,” died in 2006 while awaiting trial. Ta Tith’s superior, Ke Pauk, was never arrested and died in 2002.
The third suspect is Im Chaem, a former district chief who allegedly oversaw construction of the Trapeang Thma Dam, which was the regime’s biggest irrigation project and was built by thousands of people forced into labor.
The suspects are named in a 2009 document filed by Cambodian Co-prosecutor Chea Leang. In it, she records her disagreement with her international counterpart and fellow co-prosecutor who was pushing to bring charges against the suspects. Ms. Chea argues that the three Khmer Rouge officials do not fall under the court’s jurisdiction. The court is mandated to charge only those who can be considered “senior leaders” of the regime, or “those most responsible” for atrocities.
“[A]ll decisions made by Ta Tith, Ta An and Im Chaem were the responsibilities of zone secretaries or their superiors,” Ms. Chea says in the document.
She also echoes claims made by Cambodian government officials that expanding the scope of prosecution to include suspects named in Cases 003 and 004 could lead to political instability. She writes that doing so could spark fear among other former Khmer Rouge members that they could be charged as well, inciting them to rebel against the government.
Cambodian officials have repeatedly stated that they will not allow Cases 003 and 004 to go forward, warning that further prosecutions could lead to political violence and even civil war.
Analysts, human rights groups, and historians have dismissed those claims as unrealistic. They say the tribunal, officially named the Extraordinary Chambers of the Courts of Cambodia (ECCC), must be allowed to function independent of political pressure.
“It would be hugely significant if the investigation into Cases 003 and 004 was not full and thorough as that will mean that the ECCC will have failed the victims of the Khmer Rouge,” says Ou Virak, president of the Cambodian Centre for Human Rights.