Dueling Decisions at the Khmer Rouge Trials Could Mean a Suspect Avoids Justice

Hot-on-the-heels of a landmark trial judgment in Case 2/2, the Extraordinary Chambers in the Courts of Cambodia (ECCC) (also known as the Khmer Rouge Trials) in recent days issued a significant decision in another case, Case 3. Or, more accurately, “decisions,” since two co-equal judges came to opposite decisions on the personal jurisdiction of the court in regards to the suspect, Meas Muth. In their separate decisions analyzing the evidence amassed over the almost decade-long investigation, a U.N.-appointed judge held that Meas Muth should be sent to trial on a range of crimes, including genocide, while a Cambodia-appointed judge held that he should not because he was not one of the “senior leaders” or one of those “most responsible” for the Khmer Rouge atrocities, and thus didn’t fall within the jurisdiction of the court.

The English summary of the Cambodian judge’s reasoning as to why Meas Muth was not within the jurisdiction of the court (the full reasoning has not yet been translated from its original Khmer) evinces an effort to downplay Meas Muth’s role and power, and is amply rebutted by the international judge’s assessment of the evidence. The assertion that Meas Muth was simply a “facilitator” is as unpersuasive as it is worn. It is the same claim Adolf Eichmann, one of the primary organizers of the Holocaust, used when asking for a pardon after his conviction in Israel, writing:

“There is a need to draw a line between the leaders responsible and the people like me forced to serve as mere instruments in the hands of the leaders.”

No reasonable reading of the evidence can substantiate the Cambodian judge’s assertion that Meas Muth’s “participation was neither proximate to nor active in the commission of the crimes.” (Full disclosure: I was a member of the prosecution team that worked on this case.)

The two judges did not disagree on everything, however. For instance, both agree that “serious crimes occurred.” Both also identify Meas Muth as the head of the Khmer Rouge military’s Division 164 (and its predecessor, Division 3), and find that he cooperated in transferring prisoners under his control to the prison, torture, and execution center in Phnom Penh known as S-21. Although Meas Muth’s position as the head of Division 164 was no secret, it is nonetheless significant that the decisions mark the first judicial confirmation of Meas Muth’s roles and responsibilities in the Khmer Rouge. (Meas Muth had other roles and functions as well, as described in the international judge’s decision.)

That Meas Muth held these roles means that he had supervision over forces that committed crimes against thousands of Cambodians, Vietnamese, and Thai, as the international judge explains in his decision. But it also means something else that is not discussed in the decision: that Meas Muth played a substantial role in the late 1970s murders of at least seven Americans.

Case 3

Case 3 originally began as an investigation focused on two individuals, bound by their leadership in the Khmer Rouge military, known as the Revolutionary Army of Kampuchea (RAK). In addition to Meas Muth, who was head of the RAK’s Division 164 including the navy, Case 3 also initially concerned Sou Met, head of the RAK’s Division 502, which comprised the “air force” but which primarily consisted of forces working in and around airports. Sou Met, however, died during the investigation, and the case continued solely against Meas Muth. (The Case 3 decision sending Meas Muth to trial nevertheless names Sou Met, and others, as part of the “joint criminal enterprise” alongside Meas Muth.)

In addition to being the head of Division 164, which was the largest of the RAK’s military divisions, Meas Muth also had control over the coastal region known as Kampong Som (including the now-renamed Sihanoukville), and the islands off the coast of Cambodia. This was a vitally important region of Cambodia, as it surrounded the country’s sole deep-water port. With only one flight in and out of Cambodia weekly (to Beijing), and tense relations with its neighbors, virtually all imported goods came through that port. (Despite the Khmer Rouge’s aspirations of autarky, they were heavily dependent on imports, particularly from China.) It was also through that port that the Khmer Rouge exported rice, the lynch-pin of its plan for economic development. Importantly, Meas Muth reported directly to the Khmer Rouge leaders in Phnom Penh regarding both his military and geographic spheres of control.

In addition, Meas Muth served on a military committee that oversaw the entire RAK, and he benefited from his personal relationship with a trusted and brutal Khmer Rouge leader named Chhit Choeun, alias Ta (an honorific meaning “grandfather” in Khmer) Mok, who was Meas Muth’s father-in-law. (Ta Mok, also called “The Butcher,” himself passed away in 2006 before he could be prosecuted.)

The ECCC is structured along the lines of Cambodian criminal courts, which themselves are based on French criminal procedure due to Cambodia’s history as a French protectorate until 1949. As such, criminal investigations at the ECCC are not directed by the prosecution, but by investigative judges. After the prosecution initiates a case by asking the judges to investigate a set of facts based on preliminary research, the judges gather and assess evidence with the input of both prosecution and defense, and determine whether there is sufficient evidence to send a suspect to trial on particular charges. The resulting decision from that investigative process is known as a “closing order,” and where it finds sufficient evidence to send a suspect to trial it plays a similar role to an indictment in the American criminal system. Alternatively, if the closing order finds insufficient evidence to send a suspect to trial, it issues a “dismissal order.”

The decisions issued recently in Case 3 are the result of that process. At the ECCC, because it is a joint UN-Cambodian court with special rules and structures to reflect that, there are two investigatory judges, one appointed by the UN, and one by the Cambodian government. The rules of the court envision the two judges coming to an agreement as to which charges, if any, can be sent to trial. But, as mentioned, in this instance the judges came to opposite conclusions, and each issued his own closing order. The international judge held that Meas Muth was within the jurisdiction of the court “because of the combination of his rank and scope of authority in the hierarchy of [Democratic Kampuchea], and based on the character and magnitude of his crimes” and should be sent to trial on a range of crimes, while the Cambodian judge held that Meas Muth was not within the personal jurisdiction of the ECCC, which is limited to prosecuting “senior leaders” and “those who were most responsible.” (The two head prosecutors, one UN-appointed, and one Cambodian, also submitted separate views as to whether Meas Muth was within the court’s jurisdiction, mirroring the UN-Cambodia split of the investigating judges.)

This same split between the investigating judges, on the same jurisdictional grounds, occurred recently in another case under investigation at the ECCC, against an individual named Ao An. In an earlier case against a woman named Im Chaem, although both investigating judges held that she was outside of the court’s jurisdiction, an appellate body split on the issue, with the international judges finding she was within, and Cambodian judges holding she was without, the court’s jurisdiction. Under the court’s rules, that split resulted in the case being dismissed. But because the Ao An and Meas Muth cases split at the closing order stage, they could, for the first time in the life of the ECCC, present the problem of what transpires when there are two closing orders advocating different paths, and the Pre-Trial Chamber fails to reach the required “super majority” to endorse either path.

The Indictment

The international judge found that there was sufficient evidence to send Meas Muth to trial on crimes against humanity, genocide, and war crimes, as well as crimes under domestic Cambodian criminal law. It is important to recall, however, that at the investigatory stage the relevant evidentiary standard is one of “probability,” and therefore less than the “beyond a reasonable doubt” standard that is required for conviction at trial. (It also does not necessarily mean that the higher standard has not been met at this stage. Trial, however, would afford all parties additional opportunities to introduce and test evidence and arguments.)

Some of the crimes against humanity charged in the indictment involved forced labor projects under Meas Muth’s control, including growing and harvesting rice, quarrying rock, and building dams, roads, and a port. Others were in relation to killings of perceived “enemies,” including Vietnamese and Thai, or Cambodian soldiers or civilians who had fallen under suspicion. The evidence showed that Meas Muth also operated a number of prisons and security centers where victims were detained, sometimes tortured, and often executed. In addition, the indictment alleges that Meas Muth sent various victims to the S-21 security center in Phnom Penh where, as he intended, they were held, tortured, and executed. Meas Muth also oversaw a system of forced marriages in his areas of control, intended to increase the population of Cambodia for production and defense purposes.

The indictment found sufficient evidence to charge Meas Muth with genocide against the Vietnamese. Vietnamese victims included both captured Vietnamese military that would clash with forces under Meas Muth’s control on land and at sea, as well as civilian fishermen and refugees captured from boats, the latter usually trying to reach Thailand across the Gulf of Thailand (recall that this was during the period of Vietnamese “boat people” fleeing the communist government in Vietnam). The Vietnamese victims were largely killed in areas under Meas Muth’s control, although he sent some to the S-21 security center in Phnom Penh where they would be killed. The international judge found that the Khmer Rouge policy regarding the Vietnamese was so all-encompassing that “if one million Vietnamese had been captured by the [Khmer Rouge] navy, one million would have been killed.” In one particularly poignant moment in the indictment, the international judge likened the gruesome Khmer Rouge practice of burying victims―including Vietnamese―under and around fruit trees to serve as fertilizer, to the Nazi’s use of concentration camp victims’ bodies to produce soap and other items.

The Americans

What would not be apparent to a casual reader of the indictment, is that based on the authority and actions attributed to Meas Muth, some of his victims were also Americans. To be clear, this should not be taken to mean that if Meas Muth were to go to trial, crimes against American victims would form part of the charges he would face; there are multiple considerations and variables that impact which charges are pursued at the investigatory and trial stages. Nor should my discussion of American (and other) victims obscure the fact that they comprise an almost vanishingly small proportion of the total victims. The overwhelming majority of the victims were Cambodian (followed by Vietnamese and Thai).

The Mayaguez Incident

The polished black granite of panel 1W of the Vietnam Memorial in Washington, D.C., contains the names of the last servicemembers to die in the Vietnam War. Included among those names are 41 service members who fell in fighting related to what is known as the Mayaguez Incident, and which has also been called “the Last Battle of Vietnam.” Near the bottom are the names of three Marines: Gary L. Hall, Joseph N. Hargrove, and Danny G. Marshall. But Lance Corporal Hargrove, Private First Class Hall, and Private Marshall did not die fighting the Vietnamese, or in Vietnam. Indeed, evidence indicates that they were killed by the Khmer Rouge in Cambodia, by forces reporting to Meas Muth, and that they had already been taken prisoner when they were killed.

The Mayaguez Incident is named after the S.S. Mayaguez, an American container ship that was on its way to Thailand after leaving Vietnam on May 12, 1975, when it was apprehended by Khmer Rouge forces less than a month after they had seized control of Cambodia. (Saigon had fallen to the North Vietnamese less than two weeks prior.) After forcing the Mayaguez to stop, Khmer Rouge gunships eventually escorted the ship to a small Cambodian island in the Gulf of Thailand called Koh Tang.

On May 15th, after receiving orders from Washington, Marines helicoptered in to Koh Tang to begin an assault in an effort to free the ship. (An interesting bit of law trivia: the Mayaguez Incident marks the only time a President has cited section 4(a)(1) of the War Powers Resolution, which mandates a report when the President introduces forces into hostilities or imminent hostilities and triggers a 60-day timer for withdrawal. The forces had already been withdrawn by the time President Ford submitted the report.) The Khmer Rouge had meanwhile already decided by the time of the U.S. forces’ attack that it was best to release the crew of the Mayaguez back to the ship and allow it to be on its way. (The U.S. government had no representation in Cambodia to negotiate with the Khmer Rouge, and those communications instead took place in China by the head of the U.S. Liaison Office there, a young George H.W. Bush.)

The battle, once met, continued despite the release of the Mayaguez. At the end of a day of fighting with the Khmer Rouge on Koh Tang that had resulted in multiple American casualties, and with the Mayaguez free, the Marines withdrew. In the dark and confusion, and under attack, Hall, Hargrove, and Marshall―who were providing cover for other retreating troops―were left behind. Although they managed to establish radio contact, various plans for a rescue mission were canceled, and communication was eventually lost. All three men were soon captured after Khmer Rouge troops stationed on the island noticed that food from their campsites was going missing during the night, and saw unfamiliar boot prints in the soil. Subsequent accounts by Khmer Rouge members stated that one of the Marines was killed on Koh Tang, while the other two were transferred to the mainland, imprisoned near the coast, and eventually killed.

At the time that this transpired, Meas Muth would have been in charge of the Khmer Rouge forces on the islands and mainland that captured and killed the Marines. Em Som, an RAK member on Koh Tang, stated in subsequent interviews that he told Meas Muth he had captured Americans, and was ordered to take them to the mainland and to Meas Muth’s compound: “We saw the Americans die with our own eyes, but it was not my men who killed them. … They were not shot. They were killed with a stick.”

The connection between Meas Muth and the Mayaguez Incident has previously been noted by some in the U.S. government. In 2016, a draft U.S. Senate appropriations bill required the secretary of State to certify that “the ECCC will consider Case 003” in order for support funds to be released. The accompanying Senate report further claimed to tie the funding to “Case 003, regarding former Khmer Rouge navy commander Meas Muth who is implicated in the 1975 Mayaguez Incident” and stated that the Senate Appropriations Committee “endorse[d] the Department of State’s plan to cease contributions to the ECCC if a closing order is issued for case 003” (perhaps confusing a “closing order” with a dismissal). Some saw this as an untoward attempt by the U.S. to interfere with judicial processes, but the controversial language was not included in the ultimate funding act, and a State Department spokesman later stated: “If a single principle has guided us over [the decade the US had funded the court], it is the belief that it is the responsibility of the court, not governments, to determine the fate of the Khmer Rouge defendants.”

The Sailors

As I previously mentioned, many of the Vietnamese victims (as well as Thai) were fishermen or other civilians caught in boats off the coast by the Khmer Rouge navy under Meas Muth’s control. The Khmer Rouge had multiple radar stations on the coast and on islands allowing them to spot ships and deploy attack boats to intercept them. In addition to Vietnamese and Thai, however, other foreign civilians were also caught in boats off the coast, including Australians, Indians, Britons, French, New Zealanders, and at least four Americans: Christopher DeLance, Michael Deeds, James Clark, and Lance McNamara. These captives were considered important enough to then be transferred to the S-21 security center in Phnom Penh, where their names and sometimes photographs appear in the surviving records, and some are remembered by the handful of Cambodian S-21 prisoners who were not killed. Once at S-21, they were detained for weeks or months, likely tortured, forced to provide “confessions” (frequently focused on being members of enemy groups, including the CIA and KGB, such as in Michael Deeds’ confession), before they were killed.

New Zealander Kerry Hamill was also forced to “confess” to being a member of the CIA, but perhaps anticipating that others might one day read his confession, infused his statement with various signals to his family that would not be apparent to the Khmer Rouge. As Rob Hamill explained in his victim statement to the court in the ECCC case against the head of the S-21 prison, Duch, (Case 1) his brother’s confession used his home telephone number in New Zealand as his “CIA operative number,” mentioned family friends as members of the CIA, stated that one of his superior’s names was Colonel Sanders (of Kentucky Fried Chicken) and another was Major Rouse (i.e., major ruse), and stated that he had an instructor named “S. Tarr” (Hamill’s mother’s name was Esther). Similarly, other confessions of Westerners inserted veiled references. For instance, Australian prisoner Keith Dean claimed in his confession that his CIA contact was a “Richard Tracey” (i.e., the comic book character Dick Tracey).

As both investigating judges held, Meas Muth would not only have been responsible for the forces that captured these sailors, but also for transferring them to the S-21 Security Centre.

Meas Muth Today

After the fall of the Khmer Rouge regime in 1979, Meas Muth fled with many other Khmer Rouge members to the northwest of Cambodia, and remained there. As part of a peace deal in the 1990s, he was incorporated into the Cambodian military and became a nominal general. All indications are that Meas Muth is unrepentant—perhaps even proud—of his role in the Khmer Rouge. When he was interviewed for a 2011 documentary concerning the fate of Kerry Hamill, he first suggested that Cambodia would have been better off if Pol Pot had remained in power, and then argued that the Khmer Rouge death toll had been exaggerated and was in truth “under one million,” as if that was an acceptable range.

A few years later, in 2015, it was discovered that the Peace Corps had placed one of its volunteers to live in a house owned by Meas Muth’s son, and that the volunteer had come to live in Meas Muth’s own house for some months. Reached for comment, Meas Muth stated “I have not forgiven my enemy, but my enemy does nothing to me [now], so I will not do anything back against them.” The volunteer was quickly moved.

The dueling closing orders in regards to Meas Muth’s case will now be subject to appeal to the Pre-Trial Chamber. His lawyer recently told a reporter: “Meas Muth is now 80 years old. His health is fine. He is living in Battambang Province like an ordinary elderly man.” Meas Muth, however, claims that he is “close to death,” stating “I have difficulty breathing now and I have already prepared my coffin.” Whether he is hale or ill, in other cases, age and health issues that do not affect mental capacity have been no barrier to prosecution. Khmer Rouge leaders Nuon Chea and Khieu Samphan, convicted in November, are 92 and 87 respectively. Due to health concerns, Nuon Chea spent most of the trial following proceedings from separate room attended to by doctors. In early November, Germany began a trial against Johann Rehbogen, a former SS guard at the Nazi Stutthof concentration camp. He is 94 and can only be in court for two hours each day.

Image: A Cambodian man stands by a wall of photographs of prisoners of the Khmer Rouge regime in one of the rooms of Tuol Sleng prison, also known as S-21. Photo by Omar Havana/Getty Images.

 

About the Author(s)

Andrew Boyle

Counsel in the Liberty and National Security Program at the Brennan Center for Justice; previously prosecuted senior Khmer Rouge leaders on behalf of the United Nations for war crimes, crimes against humanity, and genocide