Cambodia Update

We've blogged before on the controversy at the Extraordinary Chambers in the Courts of Cambodia between the two Co-Prosecutors over whether to charge additional suspects with international crimes committed during the Khmer Rouge era (see here and here). Following a recent ruling of the Pre-Trial Chamber, which failed to achieve a majority to block further investigations, the Acting International Co-Prosecutor, William Smith (right), has now filed with the Co-Investigating judges two new Introductory Submissions.
Introductory Submissions are confidential to protect the integrity of the investigation, the identity of the victims and witnesses, and the presumption of innocence of the suspects. The Internal Rules do, however, allow the Co-Prosecutors to provide the public with a short summary of their submissions. What we've learned is that the Co-Prosecutors have recommended the investigation and prosecution of five additional suspects for 40 distinct factual situations of murder, torture, unlawful detention, forced labour, and persecution. The Second Introductory Submission contains allegations that, if proved, would constitute crimes against humanity, grave breaches of the Geneva Conventions, and violations of the 1956 Cambodian Penal Code. The Third Submission contains genocide allegations, but no war crimes allegations. (See our prior post on finding genocide in Cambodia).
These new Submissions specifically reference the theory of joint criminal enterprise (JCE), no doubt in an effort to ensure that the Closing Order (indictment) includes this form of responsibility. As we've blogged before, the Duch Closing Order does not include JCE allegations; the investigation into Duch's criminal liability did not focus on potential JCE liability, because the Co-Prosecutors failed to specifically reference JCE liability in their Submission to the Co-Investigating Judges. An appeal by the Co-Prosecutors on this point failed.
The Acting International Co-Prosecutor has indicated that he has no plans to conduct any further preliminary investigations into additional suspects at the ECCC.
Cambodian Prime Minister Hun Sen (left) is not happy. He has consistently argued against any expansion of the ECCC's investigations beyond the five suspects already in custody on the ground that it would spark civil unrest. At a forum on the release of new census figures, Hun Sen is quoted as saying:

If you want a tribunal, but you don't want to consider peace and reconciliation and war breaks out again, killing 200,000 or 300,000 people, who will be responsible?

Hun Sen's repeated involvement in this issue has given rise to concerns among human rights groups that the executive branch is attempting to interfere with the work of the Extraordinary Chambers.

Vindication, but too late?

As we’ve blogged before, the Extraordinary Chambers in the Courts of Cambodia were recently seized of a disagreement between the two Co-Prosecutors over whether to forward new Introductory Submissions to the Co-Investigating Judges for judicial investigation pursuant to Internal Rule 53. (Introductory Submissions are written submissions by the prosecutor to an investigating judge requesting an investigation into crimes and proposing charges). The International Co-Prosecutor — at the time, Canadian jurist Robert Petit (left) — sought to supplement the investigation of Case 002 (which concerns the four former Khmer Rouge principals in custody) and launch two new cases (Cases 003 and 004). The Cambodian Co-Prosecutor — Chea Leang (below right) — opposed any expansion of proceedings beyond the five suspects already in custody. Petit argued in his submissions that the only requirement to open an investigation was the determination that there were reasonable grounds for believing that additional crimes within the jurisdiction of the ECCC had been committed. By contrast, Leang argued that extra-legal factors — such as the limited nature of the ECCC’s mandate, the threat of instability, and resource constraints — counseled against any expansion of charges.

Anticipating just such a disagreement between Cambodian and international personnel, the ECCC’s constitutive documents provide that disagreements of this nature are to be resolved by the Pre-Trial Chamber — a mechanism that is unique to the ECCC and strains classic separation of powers principles. In this process, the burden of persuasion rested with the National Co-Prosecutor. A decision of four of the five judges of the Pre-Trial Chamber (composed of three Cambodian and two foreign jurists) would have been necessary to block the additional investigations from going forward.

After receiving a number of written submissions from the Co-Prosecutors (who both agreed that an oral hearing was unnecessary and undesirable), the Pre-Trial Chamber (below left) issued its ruling on August 18, 2009; that ruling was released yesterday. The Chamber was unable to reach a majority, and so the International Co-Prosecutor has a mandate to seek the supplemental and new investigations.

Revealing that the dissension within the Chamber was, predictably, along nationality lines, the three Cambodian judges and the two international judges issued separate opinions. The Cambodian judges argued that the International Co-Prosecutor’s supplemental investigation was unlawful because it was conducted unilaterally without the cooperation (or knowledge) of the National Co-Prosecutor. They also reasoned that the (mostly redacted) facts on which the International Co-Prosecutor premised the proposed additional investigations were already part of the investigation of Case 002, including allegations of forced marriage. Accordingly, in their opinion, no new Introductory Submissions were warranted.

The international judges, by contrast, argued that concerns about the illegality vel non of the International Co-Prosecutor’s investigation were untimely. They also noted that new proposed Introductory Submissions were required if the Co-Investigating Judges were to consider the new facts revealed and that the new submissions were structured differently in terms of their subject matter and foci than the first submissions. The decision is not subject to appeal (Article 7(4) of the Agreement establishing the ECCC).

The vindication comes too late for Petit, who has stepped down as International Co-Prosecutor citing family reasons. The appointment of Australian William Smith (right), formerly the Deputy Co-Prosecutor, as interim Co-Prosecutor took effect this past Monday.

It remains to be seen who else will be the subject of investigation, although at the time the disagreement was revealed, Petit did state that additional suspects would not threaten the Royal Government of Cambodia. The government may feel otherwise, as it was widely believed that governmental authorities had pressured Leang to resist the expansion of any investigation.
Stay tuned...