Decision also makes genocide charges unlikely in cases involving Khmer Krom

IN a wide-ranging decision made public Wednesday, judges at the Khmer Rouge tribunal clarified the requirements for civil party participation while also upholding a controversial decision not to bring genocide charges specific to the Khmer Krom.

Responding to appeals filed by lawyers for groups of Khmer Krom and Vietnamese civil party applicants, the court’s Pre-Trial Chamber (PTC) opted to reinstate a number of civil party applicants – the total is not clear in the redacted public documents – who had previously been rejected by the Co-Investigating Judges (CIJs).

The PTC judges held to the view, however, that civil parties must be able to demonstrate that they suffered as a result of crimes that the CIJs have announced are within the scope of their investigation in Case 002. Some civil party lawyers have argued that prior to an amendment in February, the court’s internal rules stipulated only that civil party applicants needed to prove that they suffered as a result of crimes committed under the Khmer Rouge.

UN court spokesman Lars Olsen said Wednesday that the issue “has been clearly resolved through this decision”.

“They say it’s very clear that there needs to be a relation, a connection to the crimes being investigated,” Olsen said.

In their decision, the PTC judges said that the requirement that civil party applications be connected to specific crimes under investigation had been clear since the establishment of the court. The civil party applicants reinstated by the PTC thus had the decisions against them reversed not simply because they were proved to be victims of the Khmer Rouge, but because the PTC judges determined that their applications bore a connection to the particular crimes included in the court’s investigation.

The decision also addressed the question of whether the court’s co-prosecutors had properly submitted evidence of genocide against the Khmer Krom for investigation by the CIJs.

The CIJs may only investigate evidence included in the co-prosecutors’ introductory submission and supplementary submissions. In January, the CIJs ruled that they could not investigate evidence of genocide against the Khmer Krom because the prosecutors had termed this submission an “investigative request”.

In the new decision, the PTC said court rules “do not exclude” the possibility of the co-prosecutors’ refiling the Khmer Krom information as a supplementary submission for inclusion in the case file. Given that the prosecutors have not yet refiled the information and have not appealed the CIJs’ initial dismissal of this information, however, Olsen said it remained unlikely that genocide charges relating to the Khmer Krom would be brought in the case.

Mahdev Mohan, a civil party lawyer representing a group of Khmer Krom civil party applicants, urged the prosecutors to take action on his clients’ behalf.

“If the [prosecutors] were to once again remain silent instead of filing a supplementary submission, our clients would find the ECCC’s process absurd,” he said in an email.

A final issue addressed by the PTC ruling was the question of whether civil parties may be admitted on a “provisional” basis. On this issue, judges Rowan Downing and Prak Kimsan offered a rare dissent from the three-judge majority ruling.

A number of civil party applicants in Case 002 have received letters from the court stating that their applications had been “placed on the case file”.

In a February appeal filed on behalf of Vietnamese and Khmer Krom civil parties, lawyers argued that the letters constituted the acceptance of their clients as civil parties, and that later decisions by the CIJs rejecting their applications were illegitimate.

Though PTC judges Ney Thol, Catherine Marchi-Uhel and Huot Vuthy argued that the letters had no legal force, Downing and Prak Kimsan said the letters “not only confirmed the receipt of civil party applications, [they] also evinced a desire to accept the applicants as Civil Parties”.

In the absence of a super-majority among the judges, the CIJs’ original decisions to reject the civil party applications were unaffected.

Olsen said the court had sent out roughly 200 such letters to civil party applicants. Though the CIJs have not ruled on the admissibility of all of these applications, Olsen said that the “majority” would likely be accepted, and that the court would not be sending out provisional acceptance letters in the future.