Investigating judges at the Khmer Rouge tribunal have decided - for the time being - not to halt controversial cases against former leaders of the regime that claimed at least 1.7 million lives in Cambodia.
The judges in May floated putting a "permanent stay" on Case 003, against Meas Muth; Case 004, against Yim Tith; and Case 004/02, against Ao An – meaning those cases would be shut down and could never be re-opened – in a confidential document, a segment of which was obtained by the Post.
The “sole reason”, the judges said, was due to “lack of funding”, which was questioned by court observers who noted long-standing criticisms of government interference at the court and Prime Minister Hun Sen’s public and forceful objections to those cases going forward.
In a statement released on Friday afternoon, the judges said they “have decided to defer the decision on a stay of proceedings for the time being”, due to responses from the UN, principal donors and the court’s office of administration, as well as a “noticeable improvement in the funding situation”.
“Should a future lack of funds or financial uncertainty threaten judicial independence, fairness and the integrity of the proceedings, we will take the measures that we consider necessary to address the situation,” they said in their decision.
The decision notes that while the defence teams for all three accused “supported a permanent stay at the earliest opportunity”, International Prosecutor Nicholas Koumjian found their consideration of a stay to be “fundamentally unsound” and beyond the judges’ legal power and authority.
To the prosecutor's argument that the judges had “no power to rule on financial obligations” of the UN and other donors, and “should stick to conducting their investigations and deciding cases on the legal merits”, the judges responded that “this argument is red herring”.
“[W]e most certainly do have jurisdiction to adjudicate on the impact the financial situation may have on the fairness of the proceedings,” they said.
In their decision, the judges said the primary donors expressed “regret” “at the suggestion in the Request that through the funding they tried to influence the outcome of Cases 003, 004 and 004/02,” saying they remained “deeply committed” to securing funds for the often cash-strapped tribunal.
The judges, citing a proposed US bill that suggested tying US contributions to the court to an indictment of Meas Muth – allegedly involved in the Mayaguez incident which cost American lives – noted such a proposal put them in a double bind.
“If we indict Meas Muth, court observers may say that we caved in to US demands; if we dismiss the case or do not indict for the Mayaguez incident, we risk the loss of major donor to the ECCC.”
The judges also issued a strongly-worded rebuke to “leakers” and the media for exposing the story.
“The fact that unlawful leaks of confidential information at the ECCC have in the past been endemic and have gone virtually unpunished is not justification for continuing this disgraceful practice,” they wrote.
"[I]ndividuals, including journalists, may not – with impunity – publish information classified by judges as confidential on the basis of their own assessment of the public interest in that information. Such behaviour may endanger the integrity of the proceedings and reduce the public confidence in court['s] ability to preserve confidentiality.”