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.