The National and International Co-investigating Judges of the Extraordinary Chambers in the Courts of Cambodia (ECCC) was divided on Wednesday as to whether Meas Muth, a former Khmer Rouge naval commander, should have the charges against him of genocide of the Vietnamese, war crimes and premeditated homicide dropped.
The National Co-Investigating Judge at the ECCC, also known as the Khmer Rouge Tribunal (KRT), issued a Closing Order stating the view that the charges should be dropped “as the evidence demonstrates . . . his position and roles are much more in line with facilitation, and not active participation in policy-making”.
However, the International Co-Investigating Judge in his Closing Order said he was of the opinion that Muth “is one of the persons most responsible for the crimes” of the Khmer Rouge “and there is sufficient evidence to indict him”.
Muth was charged in 2015 with a raft of allegations that included genocide, crimes against humanity and grave breaches of the Geneva Convention.
The issuance of such disagreeing Closing Orders came after Minister of Interior Sar Kheng announced that there were no more Khmer Rouge suspects left to stand trial.
This came after the KRT two weeks ago sentenced Nuon Chea and Khieu Samphan, former senior leaders of the Khmer Rouge regime’s Democratic Kampuchea (DK), to life imprisonment for genocide and crimes against humanity.
An ECCC press release said that “the Co-Investigating Judges issued two separate Closing Orders . . . due to a disagreement about whether Meas Muth is subject to the ECCC’s personal jurisdiction as a senior leader or one of the persons most responsible for crimes committed during the period of Democratic Kampuchea.
“The National Co-Investigating Judge is of the view that Meas Muth does not fall under the ECCC’s personal jurisdiction under either category and dismisses the case against Meas Muth for that reason.”
The National Co-Investigating Judge said that “based on available evidence, it is doubtful that Meas Muth was a deputy in the [DK] General Staff."
“If this was true, he held such position only for a month before the fall of the Democratic Kampuchea regime in January 1979. He was not a member of the Central Committee, but merely an assistant member without the right to vote on important decisions."
“To follow this strict policy, Meas Muth, as the evidence demonstrates, cooperated with S-21 to arrest and transfer enemies to S-21 . . . His position and roles are much more in line with facilitation, and not active participation in policy-making, given that [his] Division 164 dealt with the protection of sea territory under the direct control of the Central Committee.
“His participation was neither proximate to nor active in the commission of the crimes. The National Co-Investigating Judge concluded that the ECCC does not have personal jurisdiction over Meas Muth and dismisses all allegations against him accordingly”.
However, the summary of the International Co-Investigating Judge, stated: “The International Co-Investigating Judge found that the ECCC has personal jurisdiction over Meas Muth as one of the persons most responsible for the crimes committed during the regime of Democratic Kampuchea (DK).
He was a Khmer Rouge official during the time of the Court’s temporal jurisdiction and during the period when the alleged offences attributed to him occurred.
It said Meas Muth is also responsible for a number of crimes against humanity, war crimes, and domestic crimes . . . and organised and held oversight for worksites and security centres in Kampong Som.
The summary confirmed that “both the position and conduct of Meas Muth mark him out as a major player in the DK structure and as a willing and driven participant in the brutal implementation of its criminal and inhuman policies. He should stand trial for his crimes”.
According to Neth Pheaktra, an ECCC spokesman, for the time being, those involved in Case 003 must wait for the translation of the two Closing Orders before considering whether to appeal or not, and if there is an appeal, the Pre-Trial Chamber, which is comprised of three national judges and two international judges, will review it.
He said: “The Closing Orders do not mean Meas Muth will either stand trial or have his charges dismissed because there are conflicting opinions between the national and international judges.
“When there is an appeal, the Pre-Trial Chamber which is comprised of three national judges and two international judges will review the appeal of either party to decide whether Meas Muth falls under the jurisdiction or not."
“If there is a decision that he falls under the jurisdiction, it must have a vote of four-to-five or five-to-five for the case to be sent to trial. [Conversely] if they want to have Meas Muth’s charges dropped, it also needs a vote of four-to-five or five-to-five.”
Pheaktra said that in case the required vote cannot be reached, the judges of the Pre-Trial Chamber will decide how to proceed further.