A noted Khmer Rouge historian, who resigned from the Khmer Rouge tribunal to protest against an alleged failure to fully investigate the court’s third case, released a paper yesterday reviewing the negotiations that established the court’s jurisdiction for who could be tried – what one observer called the tribunal’s “signature issue”.
Steve Heder, a lecturer in Southeast Asian Politics at the School of Oriental and African Studies in London, worked in the office of the co-investigating judges at the tribunal from 2006 until May.
Heder wrote that the history of negotiations leading to the tribunal’s jurisdiction “is of the greatest interest and pertinence to the current deliberations of the [tribunal’s] judicial bodies, including resolution of the ongoing controversy concerning widened investigations at the Court”, and suggested the court draw on that history in its work.
Debate over who falls into the categories of “senior leaders” of the Khmer Rouge and those “most responsible” for crimes carried out by the regime has taken centre stage at the tribunal as additional cases opposed by the Cambodian government appear set for dismissal. Heder traces the history of that debate from the fall of the Khmer Rouge to the defections of the 1990s through to the end of negotiations between the United Nations and the government in 2003.
Anne Heindel, a legal advisor at the Documentation Centre of Cambodia, said yesterday that Heder’s paper showed that the UN and the government had come to an understanding on “senior leaders” who might be prosecuted, but “could never reach agreement, outside of Duch, as to who would be most responsible”.
Nevertheless, Heder found that “despite some inconsistency, neither Hun Sen nor other authoritative [government] officials had definitively ruled out the possibility that middle-echelon [Khmer Rouge] cadre could be prosecuted, as long as early defectors like Hun Sen himself, Chea Sim and Heng Samrin were excluded”.
But uncertainty as to the government’s commitment to refrain from interfering in the court’s proceedings remained.
Heindel said the court was designed “fully expecting” political interference, but the history demonstrates that it still needs “vocal support from the UN to counteract any other type of interference that’s going on”.