By Luke Hunt*
An application by the sole survivor of the Khmer Rouge leadership to disqualify the six appeal judges who sentenced him to life imprisonment twice, for genocide and crimes against humanity, has been dismissed by a special panel at the UN-backed tribunal.
It was a small but important milestone for the tribunal.
At 88, Khieu Samphan is now expected to die behind bars after being found guilty of crimes against humanity in Case 002/01 in 2014 and then genocide in Case 002/02 four years later alongside Nuon Chea, who served as Brother No.2 to Pol Pot. Nuon Chea died almost one year ago.
Their two separate life sentences were later merged by judges in the Extraordinary Chambers in the Courts of Cambodia (ECCC) who were charged by the UN with finding justice for two million people who perished under Khmer Rouge rule between April 1975 and January 1979.
Last October, Khieu Samphan’s defense lodged an application for disqualification, asking the Supreme Court Chamber to disqualify the six appeal judges who adjudicated in Case 002/01.
The ECCC said the special panel established the legal foundations governing the admissibility of an application for disqualification of a judge and unanimously found Khieu Samphan’s application for disqualification was admissible.
It also said that after reviewing all the criteria for disqualification, the special panel found that all judgments of Case 002/02 and 002/01 of the appeal judgment were impartial.
“The attempt to disqualify a judge is a standard arrow in the quiver of any defense attorney, and it is a maneuver that has been employed frequently at the ECCC,” said Craig Etcheson, the author of Extraordinary Justice: Law and Justice and the Khmer Rouge Tribunals.
“But it is no surprise that Khieu Samphan’s attempt failed, as have all previous such attempts at the Khmer Rouge tribunal,” he told UCA News.
It was Khieu Samphan’s last chance of freedom. His appeal for Case 002/02 is still ongoing and Etcheson added a decision on that was not expected until the fourth quarter of 2022.
He said that was assuming there were no unanticipated exigencies.
“However, unanticipated exigencies are a standard part of the ECCC judicial process,” he said.
Even if that conviction is overturned on appeal by the Supreme Court Chamber, the former chairman of the state presidium of Democratic Kampuchea would still remain behind bars on his conviction for crimes against humanity, which also went to appeal and was rejected.
Almost all senior leaders of the dreaded regime died violently or behinds bars.
Seniority was defined by those who sat on the central and standing committees, responsible for drafting and implementing policies for the Communist Party of Kampuchea (CPK) as Cambodia was called under their rule.
The commandant of the S-21 torture and extermination center in Phnom Penh, Kaing Guek Eav — who was known as Duch — is also serving a life sentence. However, efforts to prosecute other lower-ranking cadres have stalled in Cases 003 and 004.
Etcheson said both cases remain in limbo before the Pre-Trial Chamber, stranded in a standoff between the national and international judges, awaiting the next move by the recently reinstated International Co-Investigating Judge Michael Bohlander.
The ECCC has had its critics. Allegations of nepotism and political interference, which limited the scope of the tribunal, have been persistent amid heated disputes between the Cambodian and international judges and prosecutors.
But 25 years ago few thought a UN-backed tribunal would happen at all, with Pol Pot — who died under house arrest — and his henchmen living freely in Cambodia’s remote west. The tribunal’s supporters say it has brought many benefits.
Khmer Rouge history is now written into the school curriculum and their atrocities recorded into international law. Families torn apart by the ultra-Maoist regime and a 30-year civil war have been reunited and one of the darkest chapters of the 20th century consigned to history.
Few doubt the tribunal is winding down. Once done, memorials are planned along with the final cremation of millions of human bones scattered across the country, used as evidence for the ECCC since its inception in mid-2003. They have remained virtually untouched.
“History will judge the tribunal in due course,” said one long-time observer who declined to be named. “It was certainly flawed and justice was late. That said, it has been an important asset in getting Cambodia back on its feet. Khmer Rouge atrocities have been laid bare.”
*Luke Hunt is a senior opinion writer for UCA News. The views expressed in this article are those of the author and do not necessarily reflect the official editorial position of UCA News.