Editor's note: The UN-backed Khmer Rouge tribunal is moving toward the trial of four senior regime leaders. But officials there must also grapple with how the court will wind down once trials are over. Questions remain over how that can be done effectively and what will happen to the contentious issue of further indictments. Heather Ryan is a tribunal monitor for the US-based Open Society Justice Initiative.
OSJI has said that the threat of political interference hangs over the court as it prepares its completion strategy. What does that mean?
The concern is that government officials, including the prime minister, have stated that they don’t want cases that the prosecution has brought forward to proceed. And when the executive branch of the government, the prime minister and other such officials, chooses who is prosecuted and who is not prosecuted, then you have a situation where impunity results, because you don't have an independent judiciary or independent prosecutorial decisions. So we're concerned because the government seems to be trying to dictate to the court who is investigated and prosecuted, and that can lead to impunity, where people who have committed crimes are protected by the executive branch of the government.
The international side of the court wants to indict five more suspects—in Case Nos. 003 and 004—but the Cambodian side has blocked this all along, in line with government statements. How likely are these cases to be included in the completion strategy?
Negotiations about the completion strategy have not been very transparent yet, so we are not sure what options they are considering. Certainly because cases 003 and 004 are already part of the court process, they should be completed by the [tribunal] and not be dismissed or somehow otherwise resolved or thrown out of court as a part of the completion strategy. Now the donors are interested in knowing that the court will wrap up its operations within a reasonable amount of time. But that means the court has to complete and some how deal with, in a legal way, all of the cases currently before it, including cases 003 and 004. So the completion strategy can contemplate winding up the work of the court after cases 003 and 004 are dealt with adequately, but not before that.
So the completion strategy is a complicated issue. How long will it take and how will it wind up?
It's hard to know when it will be completed, but it could take a long time, because a completion strategy requires negotiations between the government of Cambodia and the United Nations. And experience has shown that any changes, any agreements, between the United Nations and the government of Cambodia take a very long time to resolve. And so it may very well be that the completion strategy is not resolved for many months or a year. You don’t have any indications yet of what the government of Cambodia would like to see in a completion strategy, and we don’t have a good understanding as to what the United Nations or the donors want in the completion strategy. So it may be that it is a very difficult negotiation between all the relevant parties.
Government officials have said the tribunal does not have a mandate for trials beyond Duch, which was already completed, and the remained four leaders in custody. Are more negotiations necessary to pursue more cases?
The mandate of the tribunal is not just to try five cases. The mandate of the tribunal is to try those most responsible and the senior leaders. And it’s up to the prosecutors of the court to make a determination, and the judges to make a determination, about who fits within the category of senior leaders and most responsible. There never was any understanding when the agreement was negotiated that there would only be five people brought before the court. So from our perspective, it does not make sense to say that the mandate of the court was only to bring five people before the court. The mandate was broader than that.
If the tribunal continues to face financial trouble and fails to find an agreement between the Cambodian and international sides over further indictments, would Case Nos. 003 and 004 be transferred to the local courts? Would that be a good scenario for the Cambodian side? Would it be satisfactory to the international side?
The problem with transferring cases to the Cambodian courts is that the government of Cambodia has indicated that it does not think that cases 003 and 004 should be tried. And therefore it’s hard to imagine that the Cambodian courts would be able to try those cases fairly. So I think it would be damaging to the reputation of the court or damaging the cause of impunity if these cases at this point were to be transferred to the domestic court. The government seems to be willing to allow Case 002 to be tried fairly, and that’s positive, but it’s a little bit difficult to imagine that the domestic court in Cambodia would have the experience to try a very complicated case involving genocide and war crimes without some assistance from experienced international personnel. So I think transfer of the cases to a local court would be extremely difficult and damaging to the reputation that the [tribunal] has already established.
The UN has remained silent on the lack of cooperation from Cambodia on further indictments. Is this because the UN is trying not to interfere with the court?
I think it’s unfortunate that the United Nations has not been more proactive in remedying the fact that it appears that the government of Cambodia is interfering with the progress of Case 003 and Case 004. And at this point, I think if Case 003 and Case 004 were to be dismissed or transferred to the local courts—that is, those cases would not likely be tried in the manner that is consistent with the international standard—that would be damaging to the reputation of the court.