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A misguided mission


Opinion

In my humble opinion, flash-in-the-pan Judge Laurent Kasper-Ansermet has been a bright, shining fool.

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So noble and courageous, as he cavalry-charged into the midst of the Khmer Rouge tribunal on his bold, white-man’s stallion of certainty and self-righteousness.

This foray was reminiscent, in both its nature and its ultimate failure, of such holy crusades as the French “mission civilisatrice”, of the first bright-eyed US advisers striding into Vietnam circa 1963, or perhaps the current crop of Kansas missionaries in Koh Kong.

It beggars belief that an intelligent person with any degree of sensitivity, understanding of history or personal humility would ever undertake the course of action that this judge chose.

I am no expert on the current best practices of jurisprudence around the world, so perhaps somebody could advise me if there is any precedent for a judge to be criticising his would-be colleagues and commenting on cases he would soon be adjudicating in a series of 166 tweets – all of this within the context of one of the most complex, sensitive and important legal exercises undertaken in recent times.

Kasper-Ansermet’s blinkered, black-letter-law justifications for riding roughshod over Cambodian (and, indeed, universal) courtesies and protocols were as ignorant in manner as they were counter-productive in outcome.

Did he really believe he would advance the cause of good Cambodian legal practice, and the progression of the trials, by announcing to the world’s media that he would carry on his duties with a determined disregard for the majority stakeholders in this partnership the Cambodians?

Whatever the ethical rights and wrongs of his stance, the learned judge seemed to possess very little understanding of human nature, historical context or Cambodian sensitivities.

His inexplicable strategy of in-your-face public confrontation was bound not only to fail but, if continued, to become a very real danger to the continued existence of the tribunal.

The 33-year saga of establishing, and now holding, these trials is an extraordinary story of triumph over an incredibly complex mix of practical difficulties, political pressures and red-raw human sensitivities.

All of these factors are still present today.

The robustness of the Cambodian people’s commitment to holding these trials, and the sustained skills, goodwill and dedication of a small band of national and international facilitators over three decades, should not hide the parallel and equally true reality that this tribunal is, and has been at every stage of its history, also very fragile.

As has been the case at least half a dozen times before, the Khmer Rouge tribunal is approaching a very difficult stage – another apparent impasse.

The resignation of Kasper-Ansermet has reduced the immediate threat of collapse, but some crucial issues remain.

The particular “sticking point” on this occasion are the conflicting views, both inside the court and outside, on whether to proceed beyond Case 002.

Scenarios such as this, including those involving political considerations, are not unexpected; they were widely discussed and documented during the tribunal’s formative process.

It has long been accepted that the formulation, the establishment and even the ongoing conduct of these trials would be an evolving creative process.

This fluid approach was validated, as experience has repeatedly demonstrated that even seemingly insurmountable difficulties could eventually be overcome with commitment, negotiation and diplomacy stage by stage.

The Khmer Rouge tribunal is a unique legal structure and still a work in progress.

The judges are, in effect, creating important new legal principles and practices “on the run” with many of their seemingly humdrum daily rulings.

On another level, a lot of new ground will also be broken over the next few months as the various stakeholders make a series of crucial decisions about what comes next.

These decisions, as always, as everywhere, will be based on a combination of human, political and practical factors as much as on matters of principle.

Personally, I believe that this searching for, and finding, new ways to actualise high principles of law and justice within the parameters of the cold, hard, real world, to be one of the many exciting and significant facets of this whole grand opera.

Indeed, it would wonderful if there was more constructive public discussion centred on these and other more instructive topics – rather than, for example, the daily undermining of the court by some of the human-rights ideologues.

As the tribunal approaches another climax/crisis, we are going to need yet another focused bout of creative thinking, constructive discourse and mutually agreed determination to see this through – not to mention great big dollops of humility and goodwill. (And money!)

So if anybody is thinking of mounting up their noble steed, donning a white Stetson and charging off to emanate the dear, departed, good knight Kasper-Ansermet, please, please, please reconsider.

The very last thing we need right now is another mythic hero. It is bridge-builders and hard-core realists who will be particularly required during the coming months.

Paul Everingham is an independent researcher at the Extraordinary Chambers in the Courts of Cambodia.

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