SUMMARY OF PRE-TRIAL CHAMBER RULING REGARDING NEW INVESTIGATIONS OF FORMER KHMER ROUGE LEADERS

September 3, 2009

By Michael Saliba, J.D. (Northwestern Law ’09), Consultant to the Center for
International Human Rights, Northwestern University School of Law

On September 2, 2009, the Pre-Trial Chamber issued a ruling related to a
disagreement between the international and national co-prosecutors, ending a
nine-month impasse on the issue of whether the ECCC will proceed with
additional criminal investigations against former leaders of the Khmer
Rouge.

Procedural Background and Relevant Law

The disagreement between the co-prosecutors arose late last year when the
national co-prosecutor, Chea Leang, objected to the request of the former
international co-prosecutor, Robert Petit, to forward two new Introductory
Submissions and one Supplementary Submission to the Office of
Co-Investigating judges (OCIJ). The two new Introductory Submissions would
create the possibility of a third and fourth trial at the ECCC while the
Supplementary Submission would open up the possibility of a fifth charged
person in Case 002, where four former leaders of the Khmer Rouge are
currently awaiting prosecution. (On March 5, 2009, the international
co-prosecutor withdrew his request for the Pre-Trial Chamber to adjudicate
the dispute related to the Supplementary Submission because upon additional
investigation, he was satisfied with the evidence that the suspect was
dead.)

Unable to resolve the disagreement, the international co-prosecutor
submitted the dispute to the Pre-Trial Chamber on December 3, 2008. (The
international co-prosecutor was not required to submit the dispute to the
Pre-Trial Chamber. In fact, it is the co-prosecutor objecting to the new
Introductory Submissions—the national co-prosecutor in this case—who carries
the burden of challenging the decision before the Pre-Trial Chamber. In the
absence of such a challenge, after receiving 30 days notice, the
international co-prosecutor technically would be permitted to proceed with
the new Introductory Submissions.) Pursuant to the ECCC’s constitutional
documents and the Internal Rules, a super-majority of four out of five
judges is required to reach a binding decision. (The Pre-Trial Chamber
consists of three Cambodian judges and two international judges.) In the
absence of a super-majority decision, the ECCC’s constitutional documents
and the Internal Rules specify that the new Introductory Submissions shall
be forwarded to the OCIJ for judicial investigation.

Objections of the National Co-Prosecutor

The national co-prosecutor objected to the new Introductory Submissions on
three legal grounds. First, she argued that the new Introductory Submissions
must be rejected because the preliminary investigation of the international
co-prosecutor violated the ECCC Law and Internal Rules. Specifically, she
asserted that she was never informed or consulted with regard to the
preliminary investigation that led to the issuance of the new Introductory
Submissions.

Second, she argued that the facts and the crimes specified in the new
Introductory Submissions have already been put forth to the OCIJ in the
first Introductory Submission dated July 18, 2007. She argued that the first
Introductory Submission covered the totality of crimes that occurred in
Democratic Kampuchea from April 17, 1975, until January 6, 1979. Therefore,
she asserted that the new Introductory Submissions are unnecessary as the
facts and crimes alleged therein are already under the investigative power
of the OCIJ which has the power to extend its investigations to suspects not
named in the first Introductory Submission.

Finally, she objected to the new Introductory Submissions on the basis of
her prosecutorial discretion. She argued that the decision to investigate
and prosecute former Khmer Rouge leaders should first and foremost reflect
the purpose and spirit of the ECCC’s constitutional documents which is to
promote peace, stability, and national reconciliation in Cambodia. She
asserted that the suspects currently identified in the new Introductory
Submissions were not “senior” leaders of the Khmer Rouge. Furthermore, she
argued that in the event of additional prosecutions, lower-ranking ex-Khmer
Rouge officials would be hesitant to act as witnesses and may even commit
violent acts for fear of being prosecuted. Finally, she argued that existing
trials would be jeopardized because additional prosecutions would strain the
budget and resources of the court.

Response by the International Co-Prosecutor

The international co-prosecutor challenged several of the substantive
pleadings of the national co-prosecutor. Contrary to her assertions, he
argued that the suspects identified in the new Introductory Submissions were
senior leaders of the Khmer Rouge and additional prosecutions were necessary
to fulfill the mandate of the ECCC. (There has been speculation that the
five living suspects currently identified in the new Introductory
Submissions were high ranking officials with the Khmer Rouge but no longer
hold significant positions of influence).

Furthermore, the international co-prosecutor asserted that the new
Introductory Submissions did raise new facts and crimes that are not
currently before the OCIJ. He contested the national co-prosecutor’s
assertion that the scope of crimes and facts from the first Introductory
Submission dated July 18, 2007, covered all crimes that occurred in
Democratic Kampuchea from April 17, 1975, until January 6, 1979. Finally,
the international co-prosecutor argued that pursuant to Internal Rule 53,
the main criteria by which to determine if new investigations should proceed
is whether there is “reason to believe” that crimes have been committed.

Pre-Trial Chamber Ruling Split Between National and International Judges

The three Cambodian judges—Prak Kimsan, Ney Thol, and Huot Vuthy—ruled in
favor of the national co-prosecutor on the ground that the preliminary
investigation was conducted without the knowledge or consultation of the
national co-prosecutor and on the ground that the new Introductory
Submissions did not raise any additional crimes or facts. The Cambodian
judges found it unnecessary to address the prosecutorial discretion argument
raised by the national co-prosecutor because they already had two
independently sufficient grounds to rule in favor of the national
co-prosecutor.

The Cambodian judges determined that the preliminary investigation was
conducted without the knowledge or consultation of the national
co-prosecutor. The judges highlighted the fact that when the national
co-prosecutor finally learned about the preliminary investigations, the
former deputy international co-prosecutor, William Smith, told her that he
was “sorry” that preliminary investigations were conducted unilaterally and
promised to inform her if further investigations would be conducted. The
Cambodian judges determined that such a unilateral investigation was in
violation of the ECCC Law and Internal rules and thus invalidated the new
Introductory Submissions.

The Cambodian judges also determined that the facts and alleged crimes
raised by the new Introductory Submissions already existed in the first
Introductory Submission filed with the OCIJ. Specifically, they found that
the first Introductory Submission covered the totality of crimes that
occurred during the period of Democratic Kampuchea from April 17, 1975, to
January 6, 1979. Therefore, the judges concluded that there was no reason to
forward new Introductory Submissions given that the facts and crimes alleged
therein were already within the investigative power of the OCIJ and the
judicial investigation in Case 002 is not yet complete.

The international judges—Rowan Downing and Katinka Lahuis—ruled in favor of
the international co-prosecutor on both grounds addressed by the Cambodian
judges. The international judges determined that the issue of a unilateral
preliminary investigation was not germane to the disagreement between the
co-prosecutors and falls therefore outside of the jurisdiction of the
Pre-Trial Chamber. Notwithstanding that determination, they noted that the
Internal Rules allow one of the co-prosecutors to move forward with a
preliminary investigation without the consent of the other co-prosecutor.

Based on an analysis of the new Introductory Submissions, and the fact that
the Office of the Co-Prosecutors (OCP) filed several Supplementary
Submissions limiting the scope of the facts and the crimes to be
investigated in the first Introductory Submission, the international judges
determined that the new Introductory Submissions were proper. If the first
Introductory Submission was so broad, they reasoned, there would have been
no need for Forwarding Orders issued by the OCIJ and Supplementary
Submissions filed by the co-prosecutors. Furthermore, they stated that the
first Introductory Submission could not be so broad as to include all crimes
that occurred within Democratic Kampuchea from April 17, 1975, until January
6, 1979, because such a submission would not be specific enough to meet the
requirements of Internal Rule 53(1).

Finally, the international judges found that the national co-prosecutor
would have first known of the preliminary investigations on November 18,
2008, and learned precise details about it on December 3, 2008. Yet she
waited until May 22, 2009, in answer to questions of a different nature to
object to the preliminary investigations. The international judges found the
issue not to be part of the disagreement of which the Pre-Trial Chamber was
seized and that it thus was unnecessary to consider whether she knew or did
not know about the preliminary investigations.

Ramifications and Next Steps

The Pre-Trial Chamber’s decision lays the groundwork for additional judicial
investigations. The acting international co-prosecutor, William Smith, is
“pleased that further investigations can now proceed.” His office will
“implement the decision and commence its preparations to assist the
Co-Investigating Judges in these further investigations as soon as
possible.” However, at this stage it is still too early to speculate on
whether and when such investigations will materialize into additional
prosecutions.

Once the OCIJ is receives the new Introductory Submissions, it must
investigate the facts and alleged crimes. Indictments can only be issued if
the OCIJ determines that the investigation of the facts warrants charges
against suspects named in the new Introductory Submissions. If the
disagreements between the co-prosecutors and the pre-trial chamber judges
are any indication, the issue of whether additional suspects will be charged
ultimately may run into similar roadblocks within the OCIJ. The OCIJ is
staffed by one Cambodian judge and one international judge. The procedure to
break a deadlock within the OCIJ is very similar to that of breaking a
deadlock within the OCP. Specifically, either co-investigating judge can
bring a disagreement about an arrest or detention order before the Pre-Trial
Chamber. In such cases, the arrest or detention order will move forward
unless a super-majority of four of the five judges blocks the action.

Given the on-going disagreements regarding this issue, any new indictments
of former Khmer Rouge leaders will likely take some time to materialize.
While extending the operation of the tribunal is sure to strain the
financial resources at the court, Youk Chhang of the Documentation Center of
Cambodia (DC-Cam) explained that the extended period would allow the
tribunal to inform the public of its actions, thus alleviating many concerns
regarding the alleged detrimental effects additional prosecutions would have
on the peace and stability of Cambodia.

A DC-Cam survey suggested that the country, like the court, is also divided
on this issue, with 57% of the country in favor of additional prosecutions.
Youk Chhang explained that the younger generation of Cambodians is more
likely to support additional prosecutions, but that many others would prefer
that the court fulfill its mandate and conclude as quickly as possible.