Sandbagged: Why I Haven't Been Able to Get Anything Done or Notes from the Underground (Forgive me Fyodor)

International Co-Investigating Judge Laurent Kasper-Ansermet wrote a treatise which could have been entitled “Why I Haven’t Been Able to Get Anything Done” or "Notes from the Underground" (Dostoyevsky already staked a claim for the latter but the former, to the best of my knowledge, is wide open). In this treatise Judge Kasper-Ansermet accuses his Cambodian counterpart, Judge You Bunleng, of successfully sabotaging his work. This alleged sabotage has gone to such great lengths as to, essentially, maroon Judge Kasper-Ansermet in his office without as much as a stamp to seal the paperwork his office generates. This is a very humbling position Judge Kasper-Ansermet has endured (for reasons I cannot begin to fathom as even in this recession-riddled market there would have to be jobs available to Judge Kasper-Ansermet which do not require being under siege) for next to half a year now.

This is little else to say by way of commenting on this other than this: the writing was on the wall before and shortly after Judge Kasper-Ansermet took office as Reserve International CO-Investigating Judge. In fact, it was plain to see that the Cambodian government did not want Cases 003 and 004 to go forward. They sent a clear message to this effect by ordering the National Co-Prosecutor not to participate in these cases (which she duly obeyed). The International Co-Prosecutor refused to take the hint and decided to duke it out. The Cambodians were not worried about the International Co-Prosecutor's shenanigans because they knew they would be able to put a kibosh on these cases once they got to the Co-Investigating Judges. The UN did not seem to have a problem with this from the start either when they sent Judge Kasper-Ansermet’s predecessor to wrap it up (the UN’s official statement, of course, did not reflect that but many have good reason to believe that "the wrap-up" was the essence of Judge Blunk's standing orders). After the flurry created by the various ECCC watchdogs and the media, Judge Kasper-Ansermet’s predecessor resigned and the UN Legal Counsel visited Cambodia to a bifurcated result with the Cambodian government and the UN Counsel issuing mutually exclusive statements about the agreements reached at the same meeting regarding interference with the administration of justice and Cases 003 and 004. It was clear right there and right then that the Cambodian government would not pay heed to anything the UN said and would stay its own course.

It is in this environment that Judge Kasper-Ansermet decided to take the job. I cannot guess if Judge Kasper-Ansermet thought he was twice the man his predecessor was or he wanted to prove something to himself, or he simply did not know much about Cambodia or the intricate and stymieing ways in which its government operated. Perhaps, there are two ways to look at what Judge Kasper-Ansermet has done since. One is that of endurance, personal dedication and perseverance and his willingness to try to work through incredible challenges which with him being a Swiss citizen definitely are not worth the money for this sort of trouble. The other is to look at the totality of what his office has been able to accomplish in the last next to have a year and try to answer the question of whether it has been worth our money (the taxpayers of the countries which fund this court). While this lack of accomplishment has not been Judge Kasper-Ansermet’s fault, my answer to this question is ‘no, it has not been worth our money’ (although the tweets were fun to read and seeing Judge Kasper-Ansermet trying to bring the word 'decider' back from the Bush section of the stand-up comedy world has too been fun). I have no intention of faulting Judge Kasper-Ansermet for being sandbagged by the Cambodian apparatus of the ECCC (they ain't much for law but they do a quality sandbagging job) but there is a point when everyone has to get introspective about his and his office’s role in these proceedings. When your prospective employer tells you that your predecessor resigned unexpectedly after having been in the job for four months, that alone should send off a red flag (but many of us have made that same mistake; it is hubris and it is always very gratifying to think of yourself as a Hemingwayesque know-it-all kind of man who stands head and shoulders over his predecessor but you often and soon realize the wrongfulness of your ways). If that opportunity was missed, then the next clue is, perhaps, when you realize that the people you work with no longer return your emails. If that is not a clue enough, another chance to come to the same realization is when you cannot get a stamp for the office you run or someone to translate from Khmer for you. Yet the next level is when they will not let you put a document on the case-file or issue an order. After that the only other thing to happen is for Judge Kasper-Ansermet to show up to work one morning and to see that the door of his office has been padlocked and no one will tell him who has the key. I do not know if this is what Judge Kasper-Ansermet is sitting in his office waiting to happen, but it is either that or arguments for why 'decider' should be a word.  

I am sure that Judge Kasper-Ansermet is a fine lawyer but lawyers do law, they do not participate in a cold war over a stamp (those with a bit of a sense of history of the Cambodian Bar Association will want to correct me on this given the events of 2004 but Cambodians going at it on their own and without “the international participation” is known to have produced results much crazier than that, so, for that, I refuse to stand corrected because there has always been a point to the international participation: the Cambodians could not be trusted to do the job on their own while spending foreign money (no, it is not just about technical expertise; if that were the case, the UN would have sent advisors, not put people in functional positions). The people who do fight wars over a stamp are the politicians and the administrators. Judge Kasper-Ansermet’s politicians and administrators are in New York and they should be the ones dealing with “the stamp issue”, not someone hired to do technical work. This is why the UN does not send lawyers into combat: lawyers sit in a room and figure out the dance of the law and the fact, not participate in international politics brought down to the level of the guy who orders a stamp. Many “lesser” men would have read the signs and either given the UN an ultimatum of either resolving the crisis through political means or start looking for a place for them to rotate out to where there are conditions to apply their legal knowledge or simply said 'my briefcase is already in the car; I am out'. But Judge Kasper-Ansermet is apparently not one of these “lesser” men and will sit in his office and issue notes – now that Judge You Bunleng has stripped him off of the ability to issue orders – until one morning he finds the door to his office padlocked and he will not be able to find the key (I'd keep the briefcase permanently in the car for that). Of course, Judge You Bunleng is perfectly fine ignoring Judge Kasper-Ansermet through the end of this process (his country is not paying Judge Kasper-Ansermet’s salary or anyone’s salary at this Court, for that matter) which will end, as Hun Sen and Sok An decided that it would, at the end of Case 002 (I am now officially accepting bets). Hun Sen and Sok An never lost a single battle in this entire process which by now has lasted 15 years: in its exercise of "diplomacy" during the negotiation process the UN tried so hard to incetivized the Cambodians that they ended up giving away the house for a couple of indoor plantholders. I am sure no one is more sore about that than Judge Kasper- Ansermet who I imagine, at this point, would like to have some alone time with the UN negotiators to ask them what the ... they were thinking agreeing to a structure that has now allowed the Cambodians to have his most basic bodily functions arrested.   

An Attempt to Disqualify Judge Cartwright

The Noun Chea defense keeps papering the Court. As part of this, a motion to disqualify Trial Chamber Judge Cartwright was filed.

Disqualification of judges has never been successfully at this Court. Those well familiar with the process remember that this Court refused to disqualify J. Ney Thol who also refused to recuse himself in Case 001. While there is absolutely no doubt in the mind of anyone familiar with J. Ney’s overall professional record and the record of his involvement in the prosecution of Duch, this Court ruled against the request for his disqualification and J. Ney, unsurprisingly, did not feel that a recusal would have been appropriate and warranted to ensure the integrity of the proceedings (a concept entirely alien to the Cambodian judicial process). The NC defense attempted to disqualify J. Cartwright with a weak borsht of media reports and indecorous statements in court. One would think that if the evidence presented against J. Ney failed to disqualify, stronger evidence of impartiality or bias would have been necessary to try to disqualify successfully. If the defense learned nothing from the attempt to disqualify J. Ney, very few other things will have the girth to provide a better learning opportunity. With this said, given J. Cartwright’s curtness with the NC defense, it does not take a quality legal analyst to figure out that she does not care for the NC defense, and Counsel Michiel Pestman in particular. If that dislike is evident to most others as well as it is evident to me and Pestman, the legal definition of this dislike is called bias and J. Cartwright is biased against Counsel Pestman in particular and NC defense as a whole. The Trial Chamber looked for legal grounds to reject the motion by declaring the Internal Rules of this Court a lex specialis which governs these proceedings, not the Cambodian Criminal Procedure Code (CPC). This marks a new level of judicial nonsense regarding the IRs. Maybe re-reading the founding law of this Court is the way to go (would the TC like a complimentary copy?).

To conclude, judicial behavior in court should be challenged but the challenger has to assess the evidence in his possession to prevent this type of challenge from becoming a mockery (anger and frustration only sometimes make for a good legal argument). To the TC, strong stuff on the IRs: it is neither correct in the context of the founding law, nor in the context of the well-established definition of ‘lex specialis’ (let's forget about the complexities of this definition; let's keep it simple: 'lex' simply and plainly means 'law'; the IRs were made up by the judicial officers of this Court; would the TC care to point out the law of this country which grants judicial officers in Cambodia the authority to make law (I can offer a copy of the law which does the opposite; it is a little known document (and I am sadly not even saying it in jest) known as the Constitution of the Kingdom of Cambodia)? If the TC can, can I have a copy of it? I am willing to trade it for a copy of the founding law (this one does exist and is not a figment of my imagination) which make it some of the most remarkable material produced by the TC to-date.

On Pesky Gnats, Interference with the Administration of Justice and a Sensible Approach

Noun Chea’s defense recently submitted yet another interference with the administration of justice motion in a series of such motions stretched out over a lengthy period of time (comments on these submissions go as far back as 2009 on this forum). This time it was submitted to the Trial Chamber (TC) and specifically against Prime Minister Hun Sen.

In this motion the defense sought (1) a declaration that Hun Sen’s statements regarding Noun’s culpability were made in violation of Noun’s right to a fair trial and (2) TC’s condemnation of said Hun Sen’s statements.

There is a long procedural history of this issue which I have no intention of revisiting in this post. The upshot is that the Noun defense has long since made the Cambodian executive’s interference with this Court a significant pillar of its defense strategy. Different levels of national courts have been dodging this issue and the different organs of this Court have given the Noun defense nothing, with the exception of the Pre-Trial Chamber (PTC) which gave the Noun defense a tidbit of encouragement.

This component of the Noun defense’s strategy is doubtless not without merit for a variety of reasons ranging from discrediting this Court as a whole to demonstrating to the rest of the world how farfetched a concept the constitutional separation of powers is in Cambodia. Pushing the envelope further and further on this is a unique opportunity which is only open to foreign lawyers whom the Cambodian executive can disparage all it wants but it cannot terminate their participation in the process and cannot have them disbarred or simply prosecuted for defamation and imprisonment (which the Cambodian executive frequently resorts to suppress the local dissent).

In principle, what the Noun defense is doing should be done, even if it only ends up having some measure of interim relief for Noun with the possibility of final relief being a mirage which was made clear in the Supreme Court Chamber (SCC)’s judgment in Case 001: it is Cambodia and things happen according to Hun Sen’s plan, not the law, and, just like the house in the casino business, Hun Sen always wins, even if for a while there it looks like justice might prevail (this feeling is an illusion to which those of us without years of well-cultivated cynicism might be prone) (in Case 001, for a while there, it looked like Duch was up … but the house took every penny he had, his pants and his shirt, in the end and threw him out on the curb).

The above was to establish that I am, as such, not adverse to what the Noun defense is trying to do on the interference with the administration of justice front. It is their methods that my quarrel is with.

First, the defense refuses to look at the entire span of Hun Sen-Noun Chea history. If looked at, even in the most cursory manner, this history will evince one highly pertinent to the circumstances of the present motion thing: Hun Sen has been calling Noun Chea all sorts of names for the last 34 years (1978-2012). For 21 (1978-1999) of those years Hun Sen and Noun Chea were leaders of the opposing factions of the Cambodian civil war and there is no doubt in my mind that they would have ordered one another’s execution had either of them been captured by the other. The mutual venom of the radio broadcasts of the two factions verges on poetic and deserves a read in its own right. During their reconciliation in 1999 upon Hun Sen’s victory in the civil war and Noun Chea’s surrender, Hun Sen did not withdraw his characterization of Noun Chea but merely said something about picking up a stick, digging up a hole and putting the past in that hole. This by no means and under no definition translates into a retrieval of Hun Sen’s position on Noun Chea’s role in Cambodia’s mass crimes. What’s restating that going to do that saying it for 34 years, day in and day out, hasn’t done? The Noun defense tells us that there is something about fair trial and the European Court of Human Rights (if I ever develop arthritis it will be from typing “please, spare us the ECHR jurisprudence; just because you are familiar with it and it is easy to research isn’t reason enough to use it”; gentlemen, for the love of God, lay off of it; it is as healthy for these proceedings as eating leftover pizza for breakfast). To this effect, the defense cites a French case. I do not need to analyze the particulars of this case to know one thing: last time France had a civil war was … way before the establishment of the ECHR (no, I don’t want to hear about La Resistance and all the 3 German trains it derailed). This means that no ECHR case has the same factual basis as this: the leader of one side of the civil war presiding over the country the courts of which are trying the leader of the other and vanquished side of the civil war who had declared the vanquished side’s leader’s criminal culpability during the war and continues declaring it now that the war is over and the prosecutions have begun. The end, credits roll. One might say that, yes, it is only par for the course that the defense argues on this legal basis because it works for them. I have no doubt that this is what they think but it really does not: an honest argument needs to be put forward to get the TC where the defense wants them. This argument has to acknowledge the fact that Hun Sen’s anti-Noun Chea vitriol is not new and has been with us for the last 34 years and that there is hardly anyone in Cambodia who has not heard it (I have spent years in this country and I have never met a Cambodian who was not sure about how Hun Sen feels about Noun Chea). It is an exercise in cretinism to argue there is a Cambodian judge on this Court who had doubts about how Hun Sen felt about Noun Chea and who needed Hun Sen’s Vietnam speech to have that confirmed. Enough breath has been wasted on this tale and it is time the defense put a kibosh on it and developed a sensible approach which might have the effect of the TC running for cover. This approach should include the constitutional separation of powers and the presumption that the judiciary is independent and should be able to be immune from the executive’s harangues. As it is not (and there isn’t any lack of paper to show that), this is the foundation for a solid argument (but, gentlemen, while you are at it, do us all a favor and drop the Montesquieu references; we get it that you are familiar with the Enlightenment legal writers and that you are impressed and so were the drafters of the US Constitution and a number of other post-Enlightenment documents; we get it, let’s move on).

The TC has to develop a reasonable approach of dealing with Noun defense’s interference claims. Treating the defense like a pesky gnat won’t work: the defense knows they have a point, the TC knows they have a point, we know the defense has a point and the TC knows that we know the defense has a point. The only sensible approach here is to cut the BS and develop a sensible approach. This issue won’t go away (the defense has demonstrated its perseverence and resilience by going at it for over 2 years now) and yelling at them in court is unprofessional and only shows the TC’s weakness, not its strength (please, spare us the nonsense of "the determination of guilt or innocence is the sole responsibility of the Trial Chamber"; it is the worst argument since "we just followed orders": it is legally unsound and ethically embarassing and, speaking plainly, just garbage and I am fully confident that the better jurists of the TC are fully aware of that).