Already halfway through a maximum three-year detention period, jailed leaders of the Khmer Rouge have the chance to be released if proceedings don’t speed up, legal experts say.
Prosecutors have argued that each of the five jailed leaders represents a flight risk if released before their trials, but under the rules of the tribunal, so-called pre-trial detention can only last three years.
Four of the senior-most leaders of the failed regime—Nuon Chea, Khieu Samphan, Ieng Sary, Ieng Thirith—have reached the midway points of their provisional detentions, and yet none has seen trial. Some observers worry about a release of those four in early 2010, but others argue that authorities will have to find ways to keep them detained.
Long Panhavuth, a program officer for the Open Society Justice Initiative, told VOA Khmer by phone that the case of four senior leaders—designated Case No. 002 by the court—is more complex than Case No. 001, for Duch, the former prison administrator now on trial.
Prosecutors for the second case will have to put responsibility for many crimes committed by cadre nationwide on the leaders at the top.
That will be difficult, Long Panhavuth said, because there has so far been no cooperation from key witnesses in the government, while the right to remain silent for defendants will slow the trial process.
“So if in 2010 there is no trial on Case No. 002, that means that the temporary three-year term of detention will expire, and according to the internal rules, there should be the release of the four accused,” he said. “That’s my concern.”
There may also be an absence of judges after 2010 if there are no trials, which will mean people who have been waiting a long time for justice will face deep disappointment.
Caitlin Reiger, head of the Cambodia program at the International Center for Transitional Justice, acknowledged that the second case is indeed complex, but the court may be able to find a way to continue it.
“The court can impose other conditions even if the people are released,” she told VOA Khmer by phone from New York, including house arrest, bail and promises not to tamper with witnesses or evidence.
Tribunal regulations say the court can extend pre-trial detention only two times, for a maximum of three years. A closing order on the case must be issued inside those three years to keep the detainees in custody.
“I would expect the closing order to be entered prior to the expiration of the three years,” said one US tribunal observer, on condition of anonymity.
John Hall, an associate professor of law at Chapman University, told VOA Khmer in a recent e-mail that “the slow pace poses a real threat to the court, given that funding is far from guaranteed.”
“The court is still plagued with unresolved corruption allegations, allegations of political interference by the Cambodian government, conflict between the co-prosecutors over the number of additional defendants, and now concern about the newly appointed head of the Victims Unit, and fears that the offices of defense teams may have been compromised and documents stolen,” he wrote. “It now appears that we may have to be content with the trial of just Duch at least for the present, as it is unlikely that we can expect to see the remaining four accused face trial before late 2010 or even 2011.”
Peter Maguire, a US professor and longtime observer of Asian affairs, told VOA Khmer by email there was a “distinct possibility” that Duch will be the only one tried by the tribunal.
“If Duch is served up like a sacrificial lamb, and the big four are released due to a technicality, these trials will end on an especially farcical note,” he wrote.
Duch’s case is simple, he said, but the court has been unable to complete it. The case against the other four is more complex, but he doubted they would be released any time soon.
“This tribunal is definitely in a perilous position at the moment,” he wrote. “The Cambodian side seems to be losing political will and falling back to familiar defensive positions.”
Tribunal spokesman Reach Sambath called worries over the trial of the four leaders “speculation.”
“The most important task is that co-investigating judges are working very hard today, and they are doing their work not under any political pressure, and they are doing their work independently according to the law,” he said.
Khieu Samphan’s limit expires in September 2010. The other three would face the prospect of release a month later.
“What the concern is, where the complexity and doubt are, is that this procedure is not only delayed because of regular procedures, but delayed because of irregularities, which could be political interference, corruption and corruption allegations,” said Seng Theary, executive director of the Center for Social Development.
The government and the UN remain at loggerheads over how to deal with corruption allegations at the tribunal, including charges from Cambodian staff that they must pay kickbacks to work at the UN-backed court.