Yet Another International Co-Investigating Judge Bites the Dust: Part 2

The last year has seen two international investigating judges who have resigned their position. These two individuals came to this Court with very different mindsets and handled themselves very differently when acting in the same capacity and dealing with the same issue in a quick succession. J. Blunk came to this Court to, essentially, certify the closure of investigation in Cases 003 and 004 while J. Kasper-Ansermet stepped into J. Blunk’s tiny shoes to give investigation in these two cases a jump-start. Their resignations while swift and following an entirely unproductive tenure on the Court differed significantly: J. Blunk resigned amidst the storm conjured up by the community of international watchdogs while J. Kasper-Ansermet quit out of frustration with his Cambodian counterpart whom he accused of encouraging a large part of the Court’s apparatus to work against him and against whom he developed a sense of personal acrimony.

The place once occupied by these two judges is now wide open and the UN appears to be in no hurry to send in a replacement. When it does, what will that person’s mission be? There are only two roads and both of them have been explored by now. J. Blunk explored the road of rubberstamping decisions made by the political arm of the Cambodian government and J. Kasper-Ansermet explored the road of fighting tooth and nail against those decisions. If these judges’ successor takes the former road it will inexorably re-activate the watchdog machine the functioning of which will have the same effect as it did for Blunk. If s/he takes the latter road, the outcome will be the same as that in case of Kasper-Ansermet. The replacement – whoever is crazy enough to take this job at this point – will be stepping into a highly toxic environment which will require a full chemical suit as a mere gas mask won’t do the trick.

The key question for the UN to answer at this stage is how the chances of the successor can be improved. It is easy to single out the core substantive issue at hand: the political branch of the Cambodian government does not want Cases 003 and 004 to go forward and it has instructed its side of the Court to act accordingly. What can an international investigating judge do about this? Nothing. The executive routinely has broad discretion regarding whom to prosecute. The international prosecutor of this Court has been leading us to believe that he can prosecute as many cases as he finds sets of facts which fit the ECCC law. This, of course, is wishful thinking either in Cambodia or elsewhere. For the story that the international prosecutor has been telling us to work his office would have had to have been given the status of ‘independent prosecutor’. That status was deliberately not given and there is no reason to relive the agony of lost battle by pretending it ended differently (although the international prosecutor might find inspiration for this in fairly recent Cambodian history when phony victories were celebrated in Phnom Penh when the army was being decimated on the battlefield). The UN could have pushed for ‘an independent prosecutor’ but instead it gave away the house to bring the Cambodian government back to the negotiation table. Now is the time to face that music that has been playing in the background for some time now but which is filling up the hallways of the Court with its cacophony as I write this. The UN allowed the flawed design of this project to go ahead and we have our not so glorious negotiators to thank for it. But, what can be done constructively at this point to make the successor’s mission at least a relative success? The UN needs to sit down with the Cambodian government and discuss the matter. I am not using the word ‘discuss’ to tone down my message but because ‘discussion’ is all that is left to do as it would be unfair of the UN to threaten a withdrawal because the Cambodian government has not violated any of the provisions of the ECCC Law or the ECCC Agreement but merely interpreted its prosecutorial power differently. The UN needs to send in a high-level political office holder to negotiate with the Cambodian government and David Sheffer is not that person as his current position is very well-known to the Cambodian government and it is also known that Sheffer does not hold an influential political office within the UN. It needs to be a person who with enough political power for Cambodia to see him as an equal interlocutor. Until this is done the only reason to put yet another international investigating judge on the ground would be to spend the budget allocated for this position and create more international employment (come to think of it, why did Kasper-Ansermet stay for almost 2 months after he resigned? Did the UN think there was a reasonable chance of rapprochement after he called the practices of the Court ‘mafia-like’?). If this issue is not resolved at the political level, all the successor will be able to do is to possibly ruffle more feather on either side before s/he quits and quitting is the only thing one can and should do when the conditions of service degenerate to intolerable or undignified.