Investigating judges at the Khmer Rouge tribunal yesterday released their highly anticipated – and heavily redacted – reasoning for throwing out the case against former Khmer Rouge district secretary Im Chaem.
In February, the judges took the unprecedented step of dismissing Chaem’s case – in which she stood accused of a slew of crimes against humanity including murder, extermination and enslavement – deeming her “neither a senior leader” nor one of those “most responsible” for the crimes committed under the Khmer Rouge, and therefore outside of the tribunal’s jurisdiction.
However, in a statement accompanying the filing, the court notes that “a dismissal for lack of personal jurisdiction does not equate to a statement that no crimes were committed by a charged person”.
Chaem’s case – along with those of Ao An, Yim Tith and Meas Muth – have long been publicly opposed by the government over the objections of observers, with Prime Minister Hun Sen even warning civil war could break out should the cases be tried.
Yesterday’s filing acknowledges Chaem was a district secretary and was later relocated to the Northwest Zone in 1977 to replace a purged cadre, and also notes her close relationship with Khmer Rouge “butcher” Ta Mok. Heavy redactions, however, strip out the entirety of the co-investigators’ reasons for why she was not viewed as one of those most responsible for the atrocities.
The decision noted the prevailing attitude towards the Khmer Rouge and the overwhelming pressure to try Chaem, but co-investigators refused to be swayed by it. Her case – occurring more than 30 years after the events – was emblematic of the need for “judicial restraint” given the media pressure and high public expectation, they argue.
“In scenarios of this kind the guilt of the suspects, charged persons and accused often seems beyond debate . . . and the judicial proceedings are not infrequently expected simply to attach the seal of official approval and confirmation to the pre-existing general view of history,” the decision read.
The decision recognised the defence’s view that “the charges they have to defend and their legal content often have the appearance and nature of moving targets”, but was not persuaded when they played the gender card and claimed Chaem, as a woman, would be “unlikely” to play a significant role in security matters.
The decision clarified that it gave greater weight to evidence produced by the court rather than out-of-court statements, and highlighted at times small discrepancies in DC-Cam reports of the number of people killed in security centres, potentially under Chaem’s supervision as Preah Net Preah District Secretary.
The decision – and the focus on numbers of deaths – was disheartening for DC-Cam director and Khmer Rouge victim Youk Chhang. “It’s hard for any victim to accept the conclusion of the Office of the Co-Investigating Judges,” he said. “It makes us wonder if the lives of a few are not significant or are not a matter of justice.”
He said there was “overwhelming” evidence for the crimes and suffering inflicted by the regime, and argued that the court was “corrupting justice”. In seeking to prove only what their special tribunal could establish, the court was “denying the historical facts as a grey area”.
The decision highlighted that no other Cambodian court would be able to try Chaem for the atrocities of the regime.
“An argument might therefore be made that we should counter the obvious effect of this view and exercise our discretion as broadly as possible in favour of finding of personal jurisdiction in order to avoid an unwanted impunity gap. We disagree with that reasoning,” the decision read.
“[The Democratic Kampuchea] period has left major trauma in Cambodian society and there were thousands of potential perpetrators still alive . . . There is thus a massive impunity gap for crimes committed during the DK . . . however, this finding must have no policy impact on our exercise of discretion regarding personal jurisdiction.”