Disarray at the ECCC

by Kevin Jon Heller

I think it’s safe to say that the ECCC is in serious trouble, despite having an excellent International Co-Prosecutor in Andrew Cayley and many intelligent, dedicated staff.  As readers probably know, the international reserve co-investigating judge, Laurent Kasper-Ansermet, is resigning his position because interference by the Cambodian government is making it impossible for the Tribunal to investigate new cases.  Kasper-Ansermet has now released a legal document that he has styled a “Note of the International Reserve Co-Investigating Judge to the Parties on the Egregious Dysfunction Within the ECCC Impeding the Proper Conduct of Investigations in Cases 003 and 004.”  The Note essentially catalogs everything that is presently wrong with the Tribunal.  I can’t cut-and-paste from the document — which is really annoying, and all too common with documents released by international tribunals — but here is a list of its major headings:

1. Judge You Bunleng’s refusal to acknowledge or support Judge Kasper-Ansermet’s standing as International Co-Investigating Judge.  (Bunleng is the National Co-Investigating Judge.)

2. Disagreement before the Pre-Trial Chamber pursuant to Internal Rule 72.  (Rule 72 governs disagreements between the investigating judges concerning investigations.)

3. Irregularities in the disqualification process of Judge Prak Kimsan.  (Prak Kimsan is the President of the Pre-Trial Chamber.)

4. Refusal to place any document by the International Co-Investigating Judge on case-file.

5. Refusal for civil party to access case-file after an Order granting admissibility.

6. Withdrawal of the OCIJ seal.

7. Obstruction to the internal investigation.

8. Unavailability of drivers and transcribers for investigative missions.

9. Non-cooperation from the Witness/Experts Support Unit.

10. Improper procedures before the Rules and Procedure Committee.

I have no idea what the legal basis might be for Kasper-Ansermet’s “Note.”  But it’s an important document nonetheless, one that provides a unique — and uniquely disturbing — glimpse into the inner workings of the ECCC.  Read it only if you have a very strong stomach.

Hat-Tip: Polina Levina.

http://opiniojuris.org/2012/04/01/disarray-at-the-eccc/

4 Responses

  1. So far I have avoided writing anything about the ECCC, but I am beginning to think that maybe the time is ripe to write an article about the ECCC.  

    The hybrid model that involves co-leadership between the international side and the national side has shown itself to be unworkable.  (But then, I and many of my colleagues thought this might well happen back in 2006 when we started.)  

    I can’t imagine the drafters of the ECCC Agreement didn’t consider this possibility too.  But everyone was sooo happy to have an agreement that they were willing to sweep the problems under the rug.  Look where that got us. Of course, matters are not helped by the UN’s apparent unwillingness to wager its political capital and forcefully and publicly push the national side to seat the international co-investigating judge.

  2. Stuart,

    I completely agree.  I support international tribunals as much as anyone, but — and I say this not only in retrospect — it would have been better not to create the ECCC than to create an ECCC that was structurally doomed to fail.

  3. Kevin,

    I guess I can’t decide whether the fact that the organizational structure at the ECCC has an obvious flaw means that the court itself is doomed to fail.

    So long as the UN and the national side agree, the management structure works just fine.  And the UN and the Cambodian side did agree on Case Files 001 and 002.  So they are going smoothly.  As far as I can tell, the trial in Case File 002 is proceeding without problem.

    But obviously there will be no cooperation from the Cambodian side on Case Files 003 and 004.  The question then becomes does political interference that taints Case Files 003 and 004 also unavoidably taint Case Files 001 and 002?  If so, then the ECCC is a failure.

    I am not entirely sure what the answer here should be.  We obviously want not just the substance of impartiality and independence but also the appearance of impartiality and independence.   Can one segregate the effects on Case File 003 and 004 from the trials in Case File 001 and 002?  I guess we will find out.

    I also think it entirely possible that the ECCC could be viewed as both a success and a failure at the same time, depending on what audience you are surveying.  So long as Case File 002 continues smoothly, I suspect the ECCC will continue to be viewed as a success domestically.  But the international community may view the legitimacy (and therefore the success) of the ECCC quite differently as evidence of political interference with respect to Case Files 003 and 004 accumulates.

  4. Our most recent report on the ECCC notes two other worrying incidents, beyond the turmoil over the blocking of investigations into Cases 003 and 004:

    First the decision to keep Ieng Thirith in detention, despite a ruling of the trial chamber based on medical expertise that she is unlikely ever to be fit for trial (see page 17).

    Secondly, the decision of the Appeal Chamber to throw out the 8-year sentence reduction granted in Case 001 to Duch by the trial chamber as a remedy for the years he spent in ilelgal pretrial detention. (see page 10ff).

    http://www.soros.org/initiatives/justice/articles_publications/publications/cambodia-eccc-20120223

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