Observers say hybrid court needs to decide whether to try more suspects
before first trial of ex-prison chief Duch opens on February 17.
A sign at the Choeung Ek "killing fields" site. The tribunal must decide whether to prosecute more suspects.
THE trial of ex-prison chief Duch is now little more than a fortnight away, but with a decision on further prosecutions at the hybrid court still pending, the long-awaited hearing could raise more questions than it answers, observers say.
"Duch's hearing will generate more questions than clarifications," Youk Chhang, director of the Documentation Centre of Cambodia told the Post via email.
Duch was not a "senior leader" but a member of "those most responsible" category that, coupled with the fact there were hundreds of prisons similar in size and scope to Tuol Sleng, poses the question: "Will the ECCC look into them [other prisons and prison directors] as well?" wrote Youk Chhang.
Moreover, the 67-year-old born-again Christian is the only one of five suspects currently detained at the court to have confessed to his role in carrying out purges under the regime and has agreed to cooperate in what observers say may be part of a plea bargain. Information regarding others involved in the wide-scale perpetration of Khmer Rouge-era crimes is likely to come out during the trial.
Consequently, observers say the tribunal must make it clear now, before Duch takes the stand, whether more prosecutions of lower-ranking KR cadre are likely.
Whether the court should try more than the symbolic, big-name five it already has in custody is a question that has been asked by those inside and outside the court since the tribunal's inception.
The court's international co-prosecutor, Robert Petit, and the Cambodian prosecutor are at odds on the issue, prompting Petit last month to file a formal statement of disagreement. The court's Pre-Trial Chamber must now decide, but there is no timeline for a final decision and the rules regarding its publicity remain ambiguous.
Observers are anxious that without an answer forthcoming, Duch may "name names" first, blurring the lines of who is accountable according to the court's mandate of bringing to trial "senior leaders of Democratic Kampuchea and those who were most responsible for the crimes" under the Khmer Rouge era.
"This is the last sort of legitimacy crisis the ECCC needs, especially in light of the continued corruption allegations and investigations," Beth Van Schaack, international lawyer and author of the book Bringing the Khmer Rouge to Justice: Prosecuting Mass Violence before the Cambodian Courts, told the Post in an email.
This is the last sort of legitimacy crisis the ECCC needs.
"There are already rumblings throughout Cambodia that [Co-prosecutor Chea] Leang's position is purely political," she said.
Moving down the food chain
The six potentially new suspects have not been named, but sources close to the investigation say they are mid-ranking regime officials, possibly including at least one district chief.
As senior members of the current CPP government held similar positions under the Khmer Rouge regime, historians and observers say there is an understandable reluctance on the part of the government to allow further investigations to proceed.
Most international observers agree that the court should at least explore the possibility of further prosecutions.
"For the sake of perception and legitimacy, the process has to be open to explore evidence [regarding more suspects]," said David Cohen, director of the Berkeley War Crimes Studies Centre and the Asian International Justice Initiative at the East-West Centre, who are monitoring the court.
Whatever the decision of the Pre-Trial Chamber, observers say it needs to be made - and made publicly - fast. Yet although the internal rules of the court have a whole chapter on how such disagreements should be resolved, observers question their efficacy in providing a solution.
"The rules do not provide a timeline or deadline for the decision," Heather Ryan, a tribunal monitor for Open Society Justice Initiative, said via email. "Also, the rules are ambiguous about if it will be made public," she said.
Ryan said her greatest concern now was the timing of such a decision, which, if delayed, could have ramifications not only for Duch's trial, but for the court as a whole.
"It's important, if the court wants to move on with its work and for the sake of its reputation, that they make this decision," she said.
ADDITIONAL REPORTING BY BRENDAN BRADY