ECCC Judicial Appointments: An Opportunity for the UN to Translate its Aspirations into Tangible Outcomes

Clair Duffy is an International Legal Consultant and former Khmer Rouge Tribunal Monitor for the Open Society Justice Initiative (late 2010 to early 2013). The views expressed herein are the author’s own views and do not necessarily reflect those of any organization with whom the author has previously been affiliated.

Introduction

The United Nations has a series of Security Council Resolutions stressing the imperative of women in decision making positions in peace and security issues (see especially 1325 (2000), 1820 (2008), 1888 (2009), 1960 (2010), 2106 (2013), and 2122 (2013)). Just last month, on the occasion of the twentieth anniversary of the adoption of the Beijing Declaration and Platform for Action—a global blueprint for the empowerment of women—Executive Director of UN Women, Dr. Phumzile Mlambo-Ngcuka, said that gender equality is “not only a goal in itself, but a means for achieving all other goals on the global agenda.” She also said the UN must “lead by example.” One of the elements she highlighted was ensuring women’s full and equal participation in all levels of decision-making, including within the UN.

United Nations instruments, including its human rights instruments, unequivocally recognize principles of gender equality. Articles 8 and 101 of the UN Charter establish the concept of gender equality within the core guiding principles of the United Nations and reflect a commitment to the equality of men and women in all aspects of the human endeavor. Nonetheless, women tend to be overrepresented at entry-level professional positions in the UN and underrepresented at decision-making levels. One goal of the original (1995) Platform for Action was to achieve gender parity within the UN by the year 2000. After failing that miserably, the 2015 revised goal is to achieve 50-50 parity within the UN system by 2030.

Despite these goals, the prospects continue to look dire. For example, the Extraordinary Chambers in the Courts of Cambodia (ECCC), a hybrid or internationalized court, has both national/Cambodian administered, and UN administered (known as the United Nations Assistance to the Khmer Rouge Trials, or UNAKRT) components. However, UNAKRT is consistently failing to meet the benchmarks and averages established by the UN overall and particularly at decision-making levels.

In its most recent report on the ECCC, the Open Society Justice Initiative called on the UN and the Cambodian government to take steps to ensure that international judicial vacancies on the court’s Pre-Trial Chamber are filled immediately with competent judges. The filling of these vacancies represents an immediate opportunity for the Secretary-General—through his good offices, including the Office of Legal Affairs—to demonstrate a tangible commitment to the long-stated UN goal of achieving 50-50 gender distribution at all levels of the UN and in paying particular attention to those at decision-making levels.

Criticism of international criminal justice includes its failure to adequately prioritize, and provide redress for, crimes of sexualized and gender-based violence (committed disproportionately, though certainly not exclusively, against women and girls). However, research shows that the gradual shift of earlier international criminal justice institutions toward taking rape and other sexual crimes seriously and investigating them zealously can be traced to the participation of women in the International Criminal Tribunals for the former Yugoslavia and Rwanda as investigators, researchers, judges, legal advisors, and prosecutors. To date, a considerable amount of criticism has been leveled at the ECCC for its failure to adequately prioritize, investigate, and prosecute crimes of sexualized violence under the Khmer Rouge regime, much of which has been contested by various court actors. While such failures are not remedied solely by the appointment of females to senior positions—as demonstrated by the actions, for example, of International Co-Prosecutor Nicholas Koumjian, in the filing of a Supplementary Submission in Case 004 concerning crimes of sexualized and gender-based violence—public faith in the justice system requires that the court itself is perceived to be fair and equitable, including in its composition, and thus capable of delivering justice to all victims.

The appointment of new international judges to the ECCC’s Pre-Trial Chamber is crucial because of its role in resolving disputes between the ECCC’s co-prosecutors and co-investigating judges about who should be investigated and prosecuted by the court. As has been extensively documented, including by the Justice Initiative, the national and international sides of the court have engaged in a long-term dispute about whether two cases opposed by the Cambodian government (Cases 003 and 004) should proceed.

The ECCC law stipulates that judicial appointees must be persons of “high moral character, a spirit of impartiality and integrity, and experience, particularly in criminal law or international law, including international humanitarian law and human rights law.” They must also be independent in the performance of their functions and must not accept or seek instruction from any source, including any government. However, unlike the corresponding provisions of the Rome Statute of the International Criminal Court (ICC), the ECCC Law has no specific provision regarding gender parity (see Article 35(8) of the Rome Statute). The current gender distribution amongst judicial officers and the presidency of the ICC demonstrate that these legal provisions explicitly cognizant of gender representation are essential in ensuring their stated goal of fair representation. Currently, all three office holders within the ICC presidency are women.

Gender Breakdown of Judges and Co-Prosecutors at the ECCC

There are currently no female judges on the ECCC’s Pre-Trial Chamber. There is one female judge on the international side of the Trial Chamber and two female judges on the international side of the Supreme Court Chamber. The international co-investigating judge is male, as is the international co-prosecutor. There are no female judges on the Cambodian side of the ECCC. The Cambodian co-prosecutor, Ms. Chea Leang, is a woman. (Two tables with a more detailed breakdown showing UNAKRT judges, as well as overall Chamber composition, are provided at the end of this article.)[i]

In considering the overall composition of the benches in each ECCC chamber, the situation of gender imbalance becomes clearer. The United Nations cannot consider its own judicial appointments in a bubble. It must consider the full composition of these benches and how this appears to the public in terms of leading by example in a local context where gender imbalance in public positions is much greater. While the UN is not responsible for gender imbalance in Cambodian judicial appointments to the ECCC per se, it can and should do its utmost to balance the benches as a whole. There are many experienced, competent women available to serve, and such candidates should be prioritized to reduce the gender imparity.

Gender Breakdown of Staff at the ECCC

In terms of women’s ability to influence decision-making, the UN highlights data of gender distribution at UN professional staff levels P4 and above, on the basis that actors at these levels generally have sufficient authority to wield influence. These levels include professional, or ‘P’ levels 4 and 5, as well as directors, or ‘D’ levels 1 and 2, and those with titles of ‘ASG’ or ‘USG’—‘Assistant’ and ‘Under’ Secretary-General, respectively. International judges and the international co-prosecutor of the ECCC are the most senior ECCC officials, appointed at the UN level of D2. While these officials are interviewed, selected, and nominated by the Secretary-General (on the advice of the Office of Legal Affairs in New York), UNAKRT management in Phnom Penh recruits those at P4 and P5 levels.

A 2012 baseline study provides a detailed breakdown of gender balance within the ECCC. The statistics in that study show that UNAKRT was underperforming the UN overall by about 12 percent in terms of gender parity.[ii]  The study also shows UNAKRT to be lagging significantly behind the UN in terms of most decision-making levels.[iii] At the time of that study, women accounted for only 14 percent of those at D2 level, compared with 27.4 percent in the UN overall. Women accounted for 25 percent of those at P5 level, compared with 33.1percent in the UN overall. Women accounted for only 19 percent of those at P4 level, compared with 39.4 percent in the UN overall. UNAKRT was ahead of the UN average at the D1 level, with four women and four men at that level (50-50 within UNAKRT, compared to the average within the UN of 30.2 percent).

The same study showed that on the Cambodian side of the court, gender inequity was significantly worse, with women representing 17 percent of total Cambodian staff. At senior levels on the Cambodian side of the court (levels NOD (the Cambodian equivalent of UN P4), P5 and D1), of a total of forty posts, there was only one woman—an equivalent of 2.5 percent. That woman—Chea Leang—is the Cambodian Co-Prosecutor of the ECCC. (She is also the Prosecutor General in the Cambodian court system).

Between April 2 and 13, 2015, I exchanged a series of emails with the ECCC, seeking gender distribution statistics. My inquiries of UNAKRT provided minimal information.[iv] In seeking information about staff numbers, I was told to get a “rough estimate” from current budgetary documentation. In seeking information about rank breakdown, I was told that UNAKRT was not “in a position” to provide this information. Working from the 2015 budget, as well as in making ad hoc inquiries of those working in the court, I was able to determine that women currently account for 28 percent of UNAKRT staff.[v] The current UN figures (as at December 2013) are that the representation of women in the professional and higher categories within the UN system is 41.6 percent. This means that UNAKRT lags behind the UN system by at least 13.5 percentage points and that the representation of women has also fallen by 1 percent since the March 2012 study.

The analysis doesn’t end here. Based on unofficial information obtained through my own inquiries, in terms of the rank breakdown women currently account for: 20 percent of all UNAKRT P4s (20.4 percent below the UN average); none of those at P5 level (34 percent below the UN average); none of those at D1 level (32.3 percent behind the UN average, though there is only one D1 post in the current budget); and 25 percent of those at D2 level (5 percent below the UN average).[vi] These statistics show not only concerning disparity in the representation of women in UNAKRT, but also regression in parity since 2012, which was already below par.

Conclusion

The representation of women at the ECCC, particularly at decision-making levels, is a cause for concern. This can be immediately improved by the appointment of qualified women to fill current judicial vacancies on the Pre-Trial Chamber. The UN staff selection system stipulates inter alia that for job openings at the P-4 to D-2 levels, the list of qualified and suitable candidates must normally include at least one qualified female. UN judges on the ECCC are appointed at the D2 level. Therefore, if there are currently no female candidates on the list of candidates eligible for judicial appointment to the ECCC, a call for applications should be made. The Secretary-General has an opportunity to give demonstrable meaning to his special measure, articulating that female candidates shall be hired where their qualifications meet the requirements and are substantially equal or superior to those of male candidates. He also has an opportunity to ensure greater gender balance on the ECCC’s benches overall which, due to the lack of any female Cambodian judges on the court, are heavily imbalanced from a gender perspective. Ensuring that qualified women are appointed to the current judicial openings will not correct the deficit, but it will be a credible step forward in the effort.

Concerning the staffing of UNAKRT more broadly, a number of issues must be addressed, including UNAKRT’s failure to meet the gender parity levels being set by the UN as a whole; the lack of transparency surrounding the representation of women in UNAKRT, particularly at decision-making level; and real accountability for those at leadership levels who fail to ensure the fair representation of women at decision-making levels within UNAKRT. If the UN wants to lead by example, it must ensure women’s full and equal participation in all levels of decision-making within all of its institutions.

*Shortly after this blog was posted, the ECCC announced that the UN Secretary-General appointed one new international judge to the Pre-Trial Chamber, Mr. Olivier Beauvallet of France. In that same news release, the ECCC announced that Ms. Brenda Hollis of the US was appointed as a reserve international co-prosecutor, a position that had been vacant since 2013.

____________________________________________

[i] UNAKRT judges and co-prosecutor only (incl. reserves)

Chamber International official(s) Gender % F
Co-Investigating Judges Judge Mark Harmon
Judge Olivier Beauvalley (reserve)
M
M
0
Pre-Trial Chamber Judge Rowan Downing (resigned)
Judge Chang-Ho Chung (resigned)
Judge Steven Bwana (reserve)
M
M
M
0
Trial Chamber Judge Jean-Marc Lavergne
Judge Claudia Fenz
Judge Martin Karopkin (reserve)
M
F
M
33
Supreme Court Chamber Judge Agnieszka Klonowlecka-Milart
Judge Uhandra Nihal Jayasinghe
Judge Florence Ndepele Mumba
Judge Phillip Rapoza (reserve)
F
M
F
M
50
Co-Prosecutors Nicholas Koumjian M 0
TOTAL 13 10 (M)3 (F) 23

This table includes reserve judges as these posts are included in the budget. It also includes the two PTC judges who have recently vacated their posts.

International and Cambodian judges and co-prosecutors (incl. reserves)

Chamber Official(s) Gender %F
Co-Investigating Judges UNAKRT
Judge Mark Harmon
Judge Olivier Beauvalley (reserve)
M
MM
 0
Cambodia
Judge YOU Bunleng
Pre-Trial Chamber UNAKRT
Judge Rowan Downing (resigned)
Judge Chang-Ho Chung (resigned)
Judge Steven Bwana (reserve)
M
M
MM
M
M
M
 0
Cambodia
Judge PRAK Kimsan
Judge NEY Thol
Judge HUOT Vuthy
Judge PEN Pichsaly
Trial Chamber UNAKRT
Judge Jean-Marc Lavergne
Judge Claudia Fenz
Judge Martin Karopkin (reserve)
M
F

M
M
M
M

14
Cambodia
Judge NIL Nonn
Judge YA Sokhan
Judge YOU Ottara
Judge THOU Mony (reserve)
Supreme Court Chamber UNAKRT
Judge Agnieszka Klonowlecka-Milart
Judge Uhandra Nihal Jayasinghe
Judge Florence Ndepele Mumba
Judge Phillip Rapoza (reserve)
F
M
F

M
M
M
M
M

 22
Cambodia
Judge KONG Srim
Judge SOM Sereyvuth
Judge MONG Monichariya
Judge YA Narin
Judge SIN Rith (reserve)
Co-Prosecutors UNAKRT
Nicholas Koumjian
MF  50
Cambodia
CHEA Leang
TOTAL posts 28 24 (M)4 (F) 16

[ii] UNAKRT gender parity early 2012

UN average (December 2011) UNAKRT(March 2012) Differential
40.9% 29% UNAKRT 12% below average

[iii] Women at decision-making level – UN overall, vs. UNAKRT 2012

Decision-making level UN average (December 2011) UNAKRT (March 2012) Differential
D2 27.4% 14% UNAKRT 13% below average
D1 30.2% 50% UNAKRT 20% above average
P5 33.1% 25% UNAKRT 8% below average
P4 39.4% 19% UNAKRT 20% below average

[iv]

UNAKRT STAFFING BY GENDER (December 31, 2014)
Section % F %M
The Chambers 45% 55%
Office of the Co-Prosecutors 14% 86%
Office of the Co-Investigating Judges 29% 71%
Office of Administration 26% 74%

[v]

SECTION TOTAL No. of Posts (2015 budget) Percentage of women Actual no. of women in section (approx.)
The Chambers 27 45% 12
Office of the Co-Prosecutors 14 14% 2
Office of the Co-Investigating Judges 12 29% 3
Office of Administration 93 (incl. DSS and VSS) 26% 24
TOTAL 146 28% 41

[vi]

Decision-making level Number of posts UN average (December 2013) UNAKRT(April 2015) Differential
D2 12 (all judges)(3 women) 30.1% 25% UNAKRT 5% below average
D1 1 (DDOA)(0 women) 32.3% 0% UNAKRT 32.3% below average*
P5 6(0 women) 34% 0% UNAKRT 32.3% below average
P4 16 (incl. 1 vacant) 40.4% 20% UNAKRT 20.4% below average

* There is only one post at this level.

NB: This table does not include the International Lead Co-Lawyer (P5), who is a woman, since this is not a regular budgeted post. Further, it does not include Defense Counsel (who are contractors), or civil party lawyers for the same reasons.

 

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