UN Must Reconsider Commitment to Khmer Rouge Court

NEW YORK—The Open Society Justice Initiative is calling upon the United Nations to reconsider its commitment to the Khmer Rouge tribunal, following the recent resignation of International Co-Investigating Judge, Laurent Kasper-Ansermet.

Judge Kasper-Ansermet is the second international judge to resign from the court in six months, due to apparent Cambodian government interference in the progress of investigations into five individuals alleged to have played significant roles in the commission of Khmer Rouge atrocities.

The allegations against the five individually link them to the deaths of tens of thousands of people during the reign of the Khmer Rouge regime.

Judge Kasper-Ansermet’s resignation adds to already mounting evidence of absence of good faith on the part of the Cambodian government in relation to the 2003 treaty it entered into with the United Nations to establish the court, officially named the Extraordinary Chambers in the Courts of Cambodia (ECCC).

According to international law governing the treaty, Cambodia and the UN are obligated to carry out its provisions “in good faith.” Evidence of absence of good faith on the part of the Cambodian government now includes:

  • The resignation of two international investigating judges due to apparent Cambodian government interference in the conduct of their work.
  • The Cambodian government’s January 2012, breach of the agreement establishing the court—categorized as such by the UN itself—in repudiating express terms which required it to immediately endorse Judge Kasper-Ansermet’s appointment as full co-investigating judge following the resignation of Judge Siegfried Blunk.
  • Repeated statements by Cambodian government officials, including the Prime Minister, the Foreign Minister, and government spokespersons, that the court will close after its prosecution of those currently being tried and will not investigate or adjudicate two additional cases previously referred for investigation.
  • Persistent, well-documented violations of the rights of suspects and victims alike throughout the course of flawed judicial investigation into Cases 003 and 004. Violations have been documented by international judges of the court’s Pre-Trial Chamber, as well as Judge Kasper-Ansermet himself, and include allegations of serious judicial misconduct.
  • Persistent attempts by national Pre-Trial Chamber judges to thwart the provisions of the Agreement designed to guarantee the court’s independence, by removing international judicial officers from decision-making in relation to Cases 003 and 004.

Article 28 of the 2003 ECCC Agreement provides for withdrawal if Cambodia is “causing [the Court] to function in a manner that does not conform with the terms of the […] Agreement.”

The United Nations must now determine whether its continued partnership in the ECCC is a genuine search for truth and justice, or rather an international endorsement of a Cambodian government-controlled and politically-driven process.

To this end, the Justice Initiative calls on the UN to publicly clarify that the Cambodian government has breached the ECCC Agreement by obstructing the investigations of Cases 003 and 004.

We urge the UN to immediately set up an independent panel of experts that will expeditiously review this record of political interference in the court, and propose recommendations for the UN’s response.

We urge the UN and the international donors who support the court to ensure that the subsequent response is explained in an open and transparent manner, and is in line with the terms of the 2003 ECCC agreement.

This is particularly important given hopes that the Court’s legacy would reinforce the broader development of the rule of law in Cambodia.

James A. Goldston, executive director of the Open Society Justice Initiative, said: “The UN must now make clear that, however the current crisis is resolved, it will be done openly and honestly. The worst result would be for the parties to the ECCC agreement to use a legal fiction to cover up political and financial obstacles to justice in Cambodia.”

The ECCC is currently trying three top surviving leaders of the Khmer Rouge in what is known as Case 002. It has completed the trial of one defendant, Kaing Guek Eav, known as Duch, the former head of the Tuol Sleng torture center, who is now serving a life prison sentence.