(Updated 25 Oct 2010)
OPEN LETTER TO SEC. GEN. BAN KI-MOON FORCOMPLAINT ALLEGING OBSTRUCTION OF JUSTICE
AND IMPROPER AND UNLAWFUL INTERFERENCE WITH THE
OPERATIONS AND INDEPENDENCE OF THE EXTRAORDINARY
CHAMBERS (ECCC) ESTABLISHED TO ADMINISTER JUSTICE
TO THE PERPETRATORS OF THE KHMER ROUGE GENOCIDE
October 22, 2010
The Honorable Ban Ki-moon
Secretary General of the United Nations
Dear Secretary General Ban Ki-moon:
Cambodian victims of the Khmer Rouge atrocities, including the first Association of Khmer Rouge Victims in Cambodia registered as an official civil party and victims' representative with the ECCC, and other regional and international groups representing Cambodian victims’ rights, hereby bring this formal Complaint and informational submission to your personal attention, and to the attention of the United Nations, in conjunction with your scheduled visit to Cambodia that begins on October 26, 2010. It has been reported that one of the issues you plan to discuss concerns the operation of the Extraordinary Chambers in the Courts of Cambodia (the Khmer Rouge Tribunal) that was created under an Agreement between the United Nations and the Government of Cambodia in 2003 to bring justice and accountability for victims of the Khmer Rouge genocide in the late 1970s. We hope and trust that the substance of the allegations and information in this Complaint will be shared and discussed by you and United Nations delegation with Prime Minister Hun Sen and other relevant Cambodian and Extraordinary Chamber officials.
Specifically, our Complaint fully adopts the series of Reports and Working Papers issued by the Open Society Justice Initiative, including the report entitled “Political Interference at the Extraordinary Chambers in the Courts of Cambodia,” dated July, 2010, and the Working Paper on the ECCC issued on 25 August 2010, which extensively document ongoing and widespread practices involving improper and unlawful interference by the Government of Cambodia with the operations of the ECCC that violate a number of provisions of the United Nations Agreement establishing the Tribunal, as well as provisions of the Cambodian law implementing the U.N. Agreement and widely acknowledged and universally accepted standards of international law governing the operation of these types of internationally established war crimes tribunals in addition to the ones listed below. Moreover, the serious issues of corruption, that include the forced payment of kickbacks by Cambodians assigned to work with the ECC to the high level government officials who appointed them, have not been properly addressed, as no mechanism has been adopted to prevent further abuse. These improper and unlawful interferences by Cambodian Government officials at the highest levels have seriously jeopardized the ability of the Tribunal to effectively carry out its functions, and place into question the nature and extent of the Government of Cambodia's commitment to bring justice to the victims of the genocide, and to hold the perpetrators legally responsible in a meaningful way, contrary to the terms of Agreement with the U.N. We do not hesitate to point out that this policy to obstruct justice and the operation of the ECCC Tribunal amounts to a continuation and perpetuation by the present Government of the practice of genocide and crimes against humanity that were carried out by the Khmer Rouge regime.
Among the types of ongoing and systemic interference by the Government of Cambodia with the operation of the ECCC Tribunal that are detailed and documented in our full Complaint are the following:
● Preventing indictments and prosecutions from being brought -- only one case (the "Duch" case) was brought to trial and decided in the first four years of the Tribunal's operation, and serious concerns exist as to whether Case File 002 concerning the four senior Khmer Rouge leaders will be started and finished without further delays and without the deaths of any one of these four individuals;
● Preventing indictments and prosecutions of 5 other individuals comprising Case File 003 and 004;
● Forcing the UN defense lawyer Francois Roux and other key ECCC foreign officials from their position, causing further delays and serious concerns about the nature of the hybrid approach established by the ECCC that gives majority control over decisions to Cambodian officials;
● Causing the reduction in the penalty applied in the Duch case to a level inconsistent with the severity of the massive crimes against humanity (including 15,000 executions) that he committed, raising concerns that the purpose of the lenient verdict combined with the removal of the international defense lawyer Francois Roux is to lay a basis for discrediting Duch as a star witness in Case File 002 against the senior KR leaders; and,
● Not permitting witnesses who are officials of the present government to testify before the Tribunal, suggesting a "cover-up" of the fact that present government officials were associated with the Khmer Rouge regime.
These practices are part of a more general tendency by the Cambodian Government that has been extensively documented and criticized by the United Nations and the international human rights community to interfere on a regular and systemic basis with the independence of the courts and the judiciary in cases that involve criticism of Government actions and policies. The United Nations' own Special Rapporteur for Human Rights in Cambodia and its Human Rights Council Working Group have noted government interference with the courts as a major, systemic problem that has affected the independence and effectiveness of the Khmer Rouge Tribunal, and has contributed to current human rights abuses. It is noteworthy in this regard that when the Tribunal Agreement was being negotiated with Cambodia, Hans Corell, the U.N. Chief Legal Advisor, and then Secretary General Kofi Annan, both openly criticized the Cambodian Government for failing to include standards and provisions that would assure independence and effective functioning. At one point Sec. Gen. Annan withdrew from the negotiations, questioning whether the Cambodian Government had a sufficient commitment to establish an impartial court with the independence to effectively pursue Khmer Rouge war criminals. These concerns are being confirmed by the recent policies and actions of the Cambodian Government interfering with the Tribunal’s operations, and preventing it from carrying out its mission on an independent and effective basis.
We call upon the Secretary General during his visit to Cambodia that begins on October 26, 2010, and call upon the United Nations more generally in association with their responsibility for establishing the ECCC and supervising its operations, and for securing justice for war crimes and crimes against humanity more generally, to make clear to Cambodian officials that their long-standing and continuing obstruction of the effective operations of the ECCC violates the United Nations Agreement setting up the Tribunal, as well as the Cambodian implementing laws, and international legal standards on which they were based. These obstruction of justice practices, which amount to a continuation and support of the Khmer Rouge genocide, must not be tolerated by the international community.
We are gravely concerned that Duch, not any of the “senior Khmer Rouge leaders” will be made the sole scapegoat of the KR regime, while none of “senior KR leaders” will be held accountable.
Respectfully submitted this 22nd day of October, 2010 on behalf of the victims of the Khmer Rouge atrocities by:
Theary C. SENG, President, Association of Khmer Rouge Victims in Cambodia, the first civil party and victims' group recognized by the ECCC, Email address: theary.seng@gmail.com
Sarini ROS, civil party, Email address: sariny.ros@free.fr
Névinka KIMARI-LIM, civil party, Email address: nevinka.kimari@gmail.com
Visaka KIMARI, civil party, Email address: visalux@gmail.com
Antonya TIOULONG, civil party, Email address: atioulong@lexpress.fr
Néva ROHMER, civil party, Email address: fnrohmer@yahoo.fr
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