The Cambodian investigating judge at the Khmer Rouge tribunal said today that he was participating in investigations in the court’s controversial third and fourth cases, proceedings to which Prime Minister Hun Sen has publicly expressed opposition.
The admission from Judge You Bunleng stands in contrast to a pattern of opposition by Cambodian court officials to the cases, which feature five suspects who have yet to be arrested and whose identities remain confidential.
You Bunleng himself declined to participate in the investigations when they began last year, leaving his international counterpart, Co-Investigating Judge Marcel Lemonde, to pursue them on his own.
“For these cases, I am working with the foreign judge and already have a specific plan,” You Bunleng said today.
“Now we are examining the cases and documents in relation to the previous cases.”
Asked about Hun Sen’s stated opposition to the cases, You Bunleng said: “I’m sorry, I work together [with the foreign staff] as a working group.”
During a visit to Cambodia by United Nations secretary general Ban Ki-moon in October, Hun Sen reportedly said the pending investigations in Cases 003 and 004 were a threat to the Kingdom’s stability.
“Samdech [Hun Sen] clearly affirmed that Case 003 will not be allowed,” Foreign Minister Hor Namhong told reporters following the meeting. “We have to think about peace in Cambodia or the court will fail.”
“The court will try the four senior leaders successfully and then finish with Case 002.”
Anne Heindel, a legal adviser with the Documentation Centre of Cambodia, said You Bunleng’s participation in the new investigations was “enormously significant”.
“For the legacy of the court, for the perceived fairness of the court, it’s tremendously significant,” she said.
“It shows that whatever led him to [decline to participate] in the first place, there have been discussions or reconsiderations … and now there is the possibility of having the third and fourth case [and] there isn’t the government pressure that people feared would close off the possibility.
“It is possible he’s doing this on his own, but that would be very surprising.”
In June last year, You Bunleng and Lemonde made public letters to one another revealing that they had disagreed on the timing of investigations in Cases 003 and 004.
In one communication, Lemonde called on You Bunleng to sign a rogatory letter authorising preliminary investigations.
You Bunleng responded that he had initially signed the rogatory letter before changing his mind out of concern for the “current state of Cambodian society”. He suggested the matter be considered following the issuance of indictments in the court’s second case, which were handed down in September.
Lemonde and other foreign staff in the co-investigating judges’ office began investigating the cases on their own following the June disagreement.
As recently as late November, You Bunleng said he was still undecided on how to proceed with the matter.
Lemonde announced his resignation following the Case 002 indictments in September and has been replaced by the German judge Siegfried Blunk.
You Bunleng’s initial reluctance to pursue the cases was the latest in a series of disputes between Cambodian and foreign court officials on the issue.
Cambodian co-prosecutor Chea Leang opposed the submissions for Cases 003 and 004 made by international prosecutor William Smith in 2009.
The issue also split judges of the court’s Pre-Trial Chamber along Cambodian vs foreign lines, according to a decision issued the same year.
Council of Ministers spokesman Phay Siphan declined to be drawn out today on whether the government was still opposed to additional cases at the Extraordinary Chambers in the Courts of Cambodia, as the tribunal is formally known.
“What we understand is right now, we put our utmost attention to Case 002 in terms of resources,” he said.
“Case 003 and 004, we don’t pay attention that much. We want Case 002 to be the legacy of the ECCC.”
Case 002, which features the four most senior surviving Khmer Rouge leaders, is expected to begin within the next six months.
The defendants, including former Khmer Rouge Brother No 2 Nuon Chea and Foreign Minister Ieng Sary, face a raft of charges including genocide and crimes against humanity.
United Nations court spokesman Lars Olsen said today that he had not received any official information about You Bunleng’s involvement in Cases 003 and 004.
“The most recent information I have is that the investigation conducted by international investigators was limited to crime sites and crime bases,” he said.
Long Panhavuth, a project officer with the Cambodia Justice Initiative, said his organisation welcomed the news of You Bunleng’s participation in the investigations.
“The public needs to see a sign of cooperation and progress on Cases 003 and 004,” he said.