Cambodia’s Khmer Rouge Tribunal Ends Deadlocked Case against Former Regional Commander

NEW YORK—The Open Society Justice Initiative notes with sadness the August 10 decision of the Supreme Chamber of the Extraordinary Chambers in the Courts of Cambodia (ECCC) that terminates the prosecution of Ao An, a former regional commander of the Khmer Rouge charged with genocide and crimes against humanity.

The Supreme Court Chamber decision highlighted the deadlock that has reigned in the case since the ECCC’s co-investigating judges issued conflicting closing orders—with an indictment to proceed to trial from the international judge, and a dismissal from the Cambodian judge.

The chamber ruled that, because issuance of competing orders by the investigating judges was found to be unlawful, there was no valid indictment to form the basis of a trial.

“The decision reflects the long evident inability of the Court to overcome the entrenched opposition of the Cambodian government to further prosecutions of Khmer Rouge leaders beyond the handful it deemed were politically acceptable,” said James A. Goldston, executive director of the Open Society Justice Initiative.

“A trial would have best served justice and the victims of Khmer Rouge era atrocities alleged against Ao An, but given the flat refusal of national judges to consider the merits of the case, the Supreme Court decision at least provides certainty for the parties and puts an end to the useless procedural maneuvering that has marked the case over the last eight months.”

The ruling, delivered 13 years after the investigation of Ao An began, and was in response to the continued division between the court’s international and national prosecutors and judges over whether Ao An and two other suspects (in what are known as Cases 003/004) fall withing court’s jurisdiction to prosecute “senior leaders and those most responsible” for crimes committed by the Khmer Rouge between 1975 and 1979 in Cambodia.

Cambodian officials at the court consistently refused to support investigations or prosecutions of Khmer Rouge officials beyond the four  most senior leaders—Nuon Chea, Ieng Saray, Ieng Thirith, and Khieu Samphan (of these, only Khieu Sampan remains alive)—and of Duch the former head of the Tuol Sleng torture center in Phnom Penh.

The Supreme Court Chamber’s ruling may also signal the termination of cases against two additional Case 003/004 accused, Meas Muth, former Khmer Rouge naval commander, and Yim Tith, a regional commander, which are pending in a state of uncertainly. This would in turn effectively end the work of the ECCC with the exception of the appeal of the second Trial Chamber judgement pending against Khieu Sampan. 

As the court winds down its operations with the termination of remaining cases it has a critical obligation to inform civil parties, whose reasonable expectations of justice have been thwarted, and the people of Cambodia generally, about the reasons for termination of the case or cases. In addition, the court, as well as the United Nations and the Government of Cambodia, has an obligation to ensure that there is maximum transparency and access to the archives of the court so that its work is fully understood.

“While terminating the Ao An case in recognition of the court’s inability to deal with the division between national and international judges makes practical sense, it leaves a great sense of failure. Far better that the court could have shook off the pall of political interference, or at least have been honest about its presence and impact,” said Goldston.

The ruling comes as the Justice Initiative is terminating its regular monitoring of the ECCC, which began during negotiations that led to its establishment in 1997 as what was then a unique experiment in delivering international justice using a mix of local and international judges, lawyers and staff.

“Our considerable investment in monitoring the ECCC over the years reflected our belief in its importance not just for Cambodians who suffered under the Khmer Rouge, but also for the development of international justice,” said Goldston.

“While we are ultimately disappointed that the Court was unable to withstand the political pressures it faced, we believe that it has made significant contributions to the Cambodian people. We hope our monitoring has contributed to a greater understanding within Cambodia and internationally of the court’s work, its success as well as its flaws.”