The Pre-Trial Chamber of the Extraordinary Chambers in the Courts of Cambodia (ECCC) has delivered a split decision in the appeal against co-investigating judges’ conflicting closing orders in the case of former Khmer Rouge navy commander Meas Muth.

Muth, who was charged by the ECCC in absentia on March 3, 2015, is believed to have committed various crimes while acting as commander of naval division 164 during the Khmer Rouge regime, which controlled Cambodia between 1975 and 1979 in an era marked by bloodshed. Among these are allegations of genocide, grave breaches of the Geneva Conventions of 1949, and crimes against humanity such as murder, extermination, imprisonment, enslavement, torture and persecution on racial and political grounds.

On November 28, 2018, the co-investigating judges assigned to Muth’s case delivered conflicting closing orders on these charges. While international co-investigating judge Michael Bohlander issued an indictment sending Muth to trial, the national co-investigating judge issued an order dismissing the case. The national and international co-prosecutors and the co-lawyers for Muth each lodged separate appeals.

In last Wednesday’s decision, the Pre-Trial Chamber confirmed that the appeals of the national and international co-prosecutors were admissible, but dismissed Muth’s co-lawyers’ appeal as inadmissible. As a preliminary point, the judges unanimously decided that the co-investigating judges’ simultaneous issuance of conflicting closing orders was illegal and in violation of the ECCC’s legal framework.

From thence diverging, the national judges went on to consider that the two closing orders possessed the same value and stood valid. The judges stated that “the two Co-Investigating Judges enjoy equal status, and in accordance with the exception of the presumption of innocence, the law in force does not allow the Pre-Trial Chamber to rule that the act of any Co-Investigating Judge has preponderance.” Thus, they opined that the two closing orders maintained the same value and that the case file against Muth should simply be held at the ECCC archives.

In contrast, the international judges considered that the national co-investigating judge had erred in deliberately failing to consider evidence placed on the case file and to decide on all the facts within his seisin. Thus, they declared the dismissal order to be null and void. Furthermore, they considered that under the principle of continuation of prosecution, in the event of unresolved discord between co-investigating judges on whether to issue an indictment or a dismissal order, the indictment should be issued as proposed. The dismissal order, therefore, “constituted an attempt to defeat the default position enshrined in the ECCC legal framework” and was issued ultra vires. In light of the above, the judges upheld the indictment.

With yet another conflict between decisions of national and international judges within the ECCC, it is unclear how the case will proceed, having been left “in limbo.”