Forced to investigate government-opposed cases 003 and 004 without the assistance of his national counterparts, the Khmer Rouge tribunal’s international co-investigating judge is seeking to hire his own team of Cambodian lawyers, according to court documents.
Judge Mark Harmon “has reached out to representatives of the international community for funds to recruit a small team of young Cambodian lawyers to work on the processing of civil party applications, which have already passed the number of 1,200 for the two cases”, the tribunal’s May Court Report notes.
“To date, those efforts have not been successful,” the announcement concludes.
The cases against five mid-ranking Khmer Rouge cadres have been repeatedly and vociferously opposed by the highest members of government. At the court, government-appointed staff have, in turn, made efforts to shut down the cases and stonewall investigations carried out by the international side.
Even the status of the cases is in dispute. While Harmon announced in February that he considered Case 003 investigations to be open, the national co-investigating judge, You Bunleng, said it was, in fact, closed.
For months, however, Harmon and international staff members of the Office of Co-Investigating Judges have been quietly carrying out investigations into cases 003 and 004. Since January, the group has undertaken at least 15 field missions and interviewed 12 witnesses in both cases. But those figures – which have been collated from data published in court reports issued since Harmon was appointed in October – obscure the reality that the office is likely operating at half its capacity.
In the course of the past seven months, the national side is mentioned a single time. At the apparent start of field missions for cases 003 and 004 in January, the report notes that they were undertaken “with the registered disagreement of the National Co-Investigating Judge”.
Emailed on Monday and Tuesday, court officials were unable to respond by press time to questions regarding the extent to which the national side is failing to assist its international counterparts but noted that Cambodian staffers are frequently hired to work under the UN side of the hybrid court.
In February, Harmon announced that Case 003 investigations were ongoing, a move that clarified the status of an unknown case and allowed for victims and civil parties to apply anew. More than 850 would-be civil parties have submitted over 1,200 applications to the two cases over the years. Analysing applications would, typically, fall under the purview of the office and sufficient funding given to cover the necessary work.
There is thus little doubt that the court report notice indicated anything other than a lack of co-operation from national counterparts, Open Society Justice Initiative tribunal monitor Heather Ryan said.
“This is consistent with the other indications we have had from the office that investigations in cases 003 and 004 are being conducted by the international side alone. This is not consistent with the intent of the agreement, which provides for joint investigations,” she continued.
More importantly, she noted, as long as the national side stood firm on its position that the cases would not go ahead, “it is difficult to see how the cases can proceed to a legitimate legal conclusion”.
“It is past [the] time for fuller transparency about this situation.”