The two investigating judges at the hybrid Extraordinary Chambers in the Courts of Cambodia (ECCC), created to try Khmer Rouge mass crimes and to bring justice to the Cambodian people, have egregiously violated their legal and judicial duties and should resign, Human Rights Watch said today. The co-investigating judges, You Bunleng (Cambodia) and United Nations-nominated Siegfried Blunk (Germany), have failed to conduct genuine, impartial, and effective investigations into ECCC cases 003 and 004. It appears likely that both cases will be dropped without a serious investigation having taken place, Human Rights Watch said. The two cases comprise five suspects and were submitted by the international co-prosecutor to the Office of the Co-Investigating Judges in 2009. In April 2011, the co-investigating judges declared that they had concluded their investigation into case 003. A formal “closing order” not to send the suspects for trial is expected soon. Current and former ECCC personnel allege that the judges also plan to close and dismiss case 004 without a genuine, impartial, and effective investigation. “The investigating judges concluded their investigation into case 003 without notifying the suspects, interviewing key witnesses, or conducting crime site investigations,” said Brad Adams, Asia director at Human Rights Watch. “This would be shocking for an ordinary crime, but it's unbelievable when it involves some of the 20th century's worst atrocities. The Cambodian people have no hope of seeing justice for mass murder as long as these judges are involved.” Since its establishment, the ECCC has been subject to frequent politically motivated interference from the ruling Cambodian People's Party. Many of the government's current leaders are former Khmer Rouge officials. Prime Minister Hun Sen, who controls the Cambodian judiciary, in which the ECCC is embedded, has repeatedly said that he objects to cases 003 and 004 proceeding. ECCC sources have told Human Rights Watch that this political interference is responsible for the judges' failure to investigate the cases properly and has led to staff resignations at the Office of the Co-Investigating Judges. “We have long expressed concern that Cambodian judges on the Khmer Rouge tribunal would have no choice but to do what Hun Sen and other senior officials wanted,” Adams said. “The ECCC was only going to be as strong as its weakest international link. Judge Blunk is that link.” Should the co-investigating judges file a closing order in either case, the international co-prosecutor can appeal to the pretrial chamber. However, given the politicized nature of the ECCC, the cases will almost certainly be dismissed. The law establishing the ECCC says that the tribunal was created “to bring to trial senior leaders of Democratic Kampuchea [the Khmer Rouge regime] and those who were most responsible for the crimes and serious violations of Cambodian penal law, international humanitarian law and custom, and international conventions recognized by Cambodia, that were committed during the period from 17 April 1975 to 6 January 1979.” As many as two million people in Cambodia were killed or died from disease or starvation during this period, when the Khmer Rouge were in power. Thus far, the ECCC has only tried one person, Kaing Guek Eav (known as Duch), the director of the infamous S-21 (“Tuol Sleng”) torture center. He was convicted of crimes against humanity and war crimes in case 001 and sentenced to 35 years in prison, reduced by time served and mitigation to 19 years. The case and sentence are on appeal to the Supreme Court chamber of the ECCC. Case 002, in which the aging Khmer Rouge senior leaders Nuon Chea, Khieu Samphan, Ieng Sary, and Ieng Thirith have been charged with genocide, crimes against humanity, and war crimes, is scheduled to begin substantive hearings in 2012. Human Rights Watch said that the failure by Judges Blunk and Bunleng to conduct proper and good-faith investigations violates their responsibilities to act impartially. Under the ECCC law, its internal rules, and international law, the co-investigating judges have an obligation to investigate the facts alleged in the cases submitted by the prosecutor. Among other requirements, international jurisprudence requires these investigations to be independent, prompt, and effective in being able to identify and punish those responsible, and open to public scrutiny. While Kofi Annan, UN secretary-general at the time the ECCC was established in 2003, recognized the essential oversight role of the UN in ensuring that the ECCC successfully prosecuted Khmer Rouge mass crimes, current UN officials have failed in that responsibility. The OLA should initiate an independent investigation into the conduct of the co-investigating judges and UN oversight of the ECCC so that lessons can be learned from the experience. The language in the agreement between the UN and Cambodia calling for the prosecution of those “most responsible” for Khmer Rouge crimes was written precisely for the kind of people facing charges in cases 003 and 004, Human Rights Watch said. If the court only investigates cases involving the top leadership of the Khmer Rouge, lower-ranking mass murderers will continue to remain at liberty, often in the same villages as the families of their victims. “The UN is burying its head in the sand by failing to respond to the numerous credible allegations of judicial misconduct,” Adams said. “If the UN doesn't act quickly to ensure that these cases are fully investigated, the tribunal's final shreds of credibility will be lost and the UN will have some hard questions to answer about its own actions.” BM
