Investigations, Misconduct, and Uncertainty in the ECCC regarding Case 003

Judges before the Extraordinary Chambers in the Courts of Cambodia, February 2012

Case 003 in the Extraordinary Chambers in the Courts of Cambodia (ECCC) has been surrounded by controversy since it began in year 2009. The case has further aggravated tensions between the international community and the Cambodian government. Recent disputes over the closing and subsequent re-opening of the investigation in Case 003 and the appointment of International Co-Investigating Judge Laurent Kasper-Ansermet highlight the challenges facing the ECCC. These tensions underscore the ongoing divide between the tribunal’s international and national judges and the difficulties the ECCC will likely continue to face.

The co-investigating judges are tasked with investigating cases brought by the co-prosecutors and issuing charges. Co-investigating Judges Blunk and You closed the brief investigation in Case 003 on April 29, 2011, without issuing indictments, despite international pressure to continue the investigation. The judges did not indicate why they closed the investigation, so the Office of the Prosecutor appealed the decision, arguing that the judges should have performed further investigations into the alleged crimes. Subsequently, civil parties and international NGOs accused two of the investigating judges of misconduct. Judge Blunk, one of the international co-investigators, resigned in late 2011, and Judge Kasper-Ansermet was appointed in his place as reserve international judge.  Both civil parties and international NGOs allege that the judges post-dated documents and failed to properly investigate suspects who had close ties to the current Cambodian Government.

Under Article 3 of the Agreement between the UN and the Cambodian government establishing the ECCC, each chamber is composed of an equal number of national judges and international judges. The judges are nominated by the UN and confirmed by the Cambodian Supreme Council of the Magistracy. Any order or verdict issued by the ECCC requires a majority vote, including at least one national judge. This system was designed as a compromise with the Cambodian government in an attempt to ensure the ECCC’s independence from the national judiciary system. Most recently, the Supreme Council of the Magistracy withheld the required confirmation, thereby blocking the nomination of Judge Kasper-Ansermet, despite the fact that the UN approved his nomination and authorized his re-opening of the investigation in Case 003. Because of the continual refusal of the Cambodian government to cooperate with Judge Kasper-Ansermet’s appointment and investigation into Cases 003 and 004, Judge Kasper-Ansermet resigned from his appointment, effective May 4, 2012.

Although the names of suspected individuals are confidential, some information regarding the suspects in Case 003 has leaked, indicating the seriousness of the crimes for which the accused could be charged. After the Co-Prosecutors prematurely released the names of the suspects in Case 003, it became evident that many suspects still hold political positions in the Cambodian Government, which is perhaps why the Prime Minister of Cambodia does not want the case to continue. However, it is unclear why Judge Blunk sided with national Judge You to close the investigation in April 2011. Cambodian and international NGOs strenuously protested the closure, and urged the UN to investigate both judges and to re-open the case. Judge Kasper-Ansermet re-opened the investigation into Case 003 in December 2011over objections from national co-investigating Judge You and the Cambodian Government, who viewed the investigation as a ploy by the international community to influence national politics.

Citing the failure of Judge Blunk to properly investigate, Judge Kasper-Ansermet found “good cause” to re-open the investigation. The Open Society Justice Initiative (OSJI), a monitoring and reporting NGO, argued that both Judge Blunk and national Judge You deliberately misled the Court to “create the illusion of a genuine investigation.” OSJI alleged that the judges added documents to the case file and back-dated other documents. However, the Cambodian government asserts that the Court should finish with Case 002 and dismiss Cases 003 and 004. Because national judges still hold political seats in the national judicial system, OSJI is concerned that the ability of the court to continue the re-opened investigation will be compromised by national political pressure and the resignation of Judge Kasper-Ansermet.

The disagreement between the two co-investigating judges and the ability of the Cambodian government to force the resignation of international Judge Kasper-Ansermet calls into question the credibility and independence of the ECCC. As a result, the investigation may not be seen as complete or in the interest of the victims. Although the ECCC opened in 2003, only five individuals have been accused, and only one has been sentenced. As an international tribunal, the ECCC faces tensions between the impartiality requirements of international justice and the pull of national politics. If the Cambodian government continues to block the appointment of international judges willing to investigate Cases 003 and 004, future investigations might not occur and Case 003 may be further delayed. The genocide perpetrated by the Khmer Rouge regime occurred over thirty years ago. The longer the victims wait for justice, the less poignant it will be, especially as the perpetrators age and their ability to stand trial decreases.

Furthermore, the ECCC was designed as a hybrid tribunal to ensure judicial independence and to provide a model of reform to the ailing Cambodian justice system. Achieving international justice objectives such as ensuring fair trials and eliminating impunity for crimes against humanity and genocide are hindered if the ECCC cannot remain impartial to national political concerns. If the pre-trial chamber and trial chamber can break away from the international and national divide, investigations into Case 003 may remain open, despite Judge Kasper-Ansermet’s resignation. But as tensions remain high, the outcome in this case and the overall legacy of the ECCC continues to be uncertain.

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