Dear Professor Scheffer,
I write to you as a victim of the Khmer Rouge and the head of a Cambodian human-rights organ-isation during this time of crisis at the Extraordinary Chambers in the Courts of Cambodia (ECCC).
Visitors observe proceedings at the Khmer Rouge tribunal in November of last year.
Your recent appointment as United Nations Special Expert on the ECCC and your visit to Cambodia are indeed timely, and offer the opportunity to consider recent developments at the tribunal and what they mean for the UN’s, and the international community’s, continued backing of that institution.
It has been reported in recent days that the Supreme Council of Magistracy (SCM) – the body mandated to appoint judges at the ECCC – has refused to confirm Laurent Kasper-Ansermet as International Co-Investigating Judge at the tribunal.
This decision is without any basis in law. Laurent Kasper-Ansermet was sworn in as reserve International Co-Investigating Judge for the ECCC on February 21 last year.
According to the 2003 agreement between the United Nations and the Royal Government of Cambodia, Concerning Prosecution under Cambodian Law of Crimes Committed During the Period of the Democratic Kampuchea, in the event that the position of international co-investigating judge is vacant, “the person appointed to fill this post must be the reserve international co-invest-igating judge”.
Similarly, Article 27 of the Law on the Establishment of the ECCC (“the ECCC law”), states that in the event of the absence of the international co-investigating judge, he or she shall be replaced by the reserve intern-ational co-Investigating judge.
Not only is the decision to prevent Judge Kasper-Ansermet taking his position at the ECCC in violation of these provisions, but the very procedure through which that decision was made is without basis in these, the founding and governing instruments of the tribunal.
This move by the SCM is unsurprising. It is composed of members of the Royal Government of Cambodia, such as Minister for Justice Ang Vong Vattana, whose opposition to additional investigations in the controversial cases 003 and 004 is well known – investigations that Judge Kasper-Ansermet has publicly stated he is committed to undertaking.
ECCC national Co-Investigating Judge You Bunleng and national Co-Prosecutor Chea Leang, whose actions throughout the course of cases 003 and 004 have confirmed that one of their primary roles at the court is to ensure those cases never get off the ground, also occupy seats in the SCM.
To any objective observer, the decision by the SCM removes any modicum of doubt as to political independence with the tribunal.
The only question that remains is: what can the international community do to salvage this institution before it loses the capacity to dispense the justice that victims of the Khmer Rouge have waited so long for?
Throughout the accusations and recriminations, perhaps the only thing as disappointing as the Royal Government of Cambodia’s interference with the ECCC has been the willingness of the international community to accept it.
During her visit to Cambodia late last year following the resignation of co-investigating judge Siegfried Blunk, United Nations legal affairs head Patricia O’Brien appeared to be more concerned about the appearance of political interference at the ECCC than the interference itself, calling on members of the Royal Government of Cambodia to refrain from public statements that indicated meddling on the part of
This attitude on the part of the UN has had disastrous consequences for the independence of the ECCC.
It appears only to have emboldened the Royal Government of Cambodia, to the point where it is now openly and defiantly in violation of its agreement with the UN and the ECCC Law.
It is clear, then, that a change of strategy is needed.
Given the importance of the ECCC to victims of the Khmer Rouge, and the desire in this country for justice for the crimes committed under that regime, it is not – in my mind – time to call for the closure of the court. It is time, however, for the UN to truly consider the bona fides of the Royal Government of Cambodia and its willingness to honour the agreement and the ECCC Law.
In convicting Kaing Guek Eav in Case 001, the Trial Chamber of the ECCC established that the court’s jurisdiction goes beyond trying only those alleged to have held senior political positions within the Khmer Rouge.
In preventing Judge Kasper-Ansermet taking up his position as Co-Investigating Judge, the SCM – or, rather, the Royal Government of Cambodia – is actively and openly preventing the ECCC exercising that jurisdiction.
The notion that any trial is better than none at all is false, and the UN must make it crystal-clear to the Royal Government of Cambodia that the international community’s commitment to the ECCC is commensurate only with that institution’s capacity to provide justice to victims of the Khmer Rouge and the government’s willingness to allow it to do so.
President of the Cambodian Centre for Human Rights
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