Reserve Co-Investigating Judge Laurent Kasper-Ansermet has released a damning report that details numerous acts of alleged misconduct and interference by Cambodian court staff at the Khmer Rouge tribunal. The document paints a picture of an utterly riven court in which national staff at all levels made every effort to obstruct Judge Kasper-Ansermet’s work, largely at the behest of Cambodian Co-Investigating Judge You Bunleng.
“There exist within the ECCC such serious irregularities, dysfunctions and violations of proper procedures that endanger and impede due process of law, and affect, as they have since our arrival into office, the proper conduct of the investigations in Case Files 003 and 004,” wrote Judge Kasper-Ansermet in the document released yesterday.
He said these irregularities had made it impossible for him and his international staff to carry out their judicial obligations and investigate the two cases (003 and 004), which are fiercely opposed by the Cambodian government as well as national court staff.
Judge Kasper-Ansermet announced Monday that he had tendered his resignation from the court, making him the second judge in under six months to quit the deeply troubled Office of Co-Investigating Judges (OCIJ).
Clair Duffy, a court monitor with the Open Society Justice Initiative, said the judge’s efforts at transparency were commendable.
“The content of that document is very damning in terms of the extent to which nationals inside the court have fallen in line with the government’s desires, and You Bunleng has been the central figure in making sure all of that happened, as well as senior administrators in the court,” Ms. Duffy said. “It’s almost like it worked as an efficient machine in blocking him at every turn.”
In his report, Judge Kasper-Ansermet outlined 10 broad examples of serious obstruction, including withholding the official OCIJ seal from him so that he could not properly stamp and file his documents.
A Cambodian clerk and an administrative assistant refused on multiple occasions to give Judge Kasper-Ansermet the rubber stamp bearing the seal, saying that Judge Bunleng had not approved it. Judge Kasper-Ansermet then appealed to the Interior Ministry for a new official stamp to use, but was also denied by an Interior Ministry official, apparently on Judge Bunleng’s orders.
“By ordering his subordinates to hold the seal of the Office of the Co-Investigating Judges out of reach of the international judge and his staff, Judge You Bunleng effectively renders half of the office incapable of properly accomplishing their judicial mission,” he said.
National court staff repeatedly refused to place any documents filed by Judge Kasper-Ansermet on the case file, telling him that they were acting on the orders of Judge Bunleng. Finally, administrators decided to appoint an international staffer to manage the case files alongside the Cambodian staff. But the international staffer later told Judge Kasper-Ansermet “that she has not, to date, been given the means to perform these new tasks, including an office to be shared with the National Case file Manager,” the judge said.
Although Judge Kasper-Ansermet and his staff have made 11 field trips so far in his effort to investigate the cases known as 003 and 004, he said they had been refused access to court translators, transcribers and drivers.
Earlier this month, after Judge Kasper-Ansermet summoned civil party applicants in Case 003 for interviews, he asked for assistance from the Witness/Experts Support Unit of the tribunal but was also denied his request, he said. And national court staff completely flouted Judge Kasper-Ansermet’s decision to grant access to the case file to civil party applicant Rob Hamill’s lawyers.
“The disagreement regarding this situation ended in the head of OCIJ International Legal Unit being banned from the Records and Archives Unit by the Chief of Court Management Section, who invoked ‘professionalism and team work spirit’ as his reasons for such a decision,” he revealed.
Judge Kasper-Ansermet eventually opened an investigation against his national colleagues for obstruction of justice, but he said Cambodian staff also obstructed that investigation and flouted his summonses.
Cambodians working throughout the court, from pre-trial judges to clerks, appeared to be following Judge Bunleng’s lead in refusing to cooperate, given the “general determination of the ECCC’s national staff to oppose any action or investigation undertaken by the international reserve co-investigating judge,” he wrote.
Judge Bunleng said yesterday that he had seen the scathing report filed by Judge Kasper-Ansermet, but would wait before issuing a response.
“I have seen his statement, but I cannot provide commentary as I am busy at a wedding reception. I have guests. Tomorrow I will review the statement and respond point-by-point.”
However, Kong Sophy, head of the tribunal’s Court Management Section, fiercely contested allegations that he had acted improperly, blaming Judge Kasper-Ansermet for being “too tough.”
“Of course, it’s so hard for me when there is a disagreement with the national investigating judge about filing documents on the case file…. The national judge had given an instruction like this not to accept. It’s too hard for us, but we are still trying our best to provide services for all.”
Mr. Sophy also claimed that staffers had allowed Rob Hamill’s international lawyers to access the case file, and simply blocked his Cambodian lawyers because they had not filled out the proper paper work.
“He [Judge Kasper-Ansermet] himself never gives us any time. He’s too tough and has used strong words on my staff, telling them ‘I give you half a hour and then you must accept and file my case or I use my rights to sue you.’
“We are just lower officials, a department under the jurisdiction of judges…. What he is doing is like a Cambodian saying: ‘Being angry at cows, he hits the ox-cart instead.'”
Neth Pheaktra, a spokesman for the Cambodian side of the court, refused to respond directly to the allegations in Judge Kasper-Ansermet’s document of deep factionalism among the national staff, but said that the administrative offices of the court did not discriminate between national and international staff.
“We must separate the problems between judicial problems and Administration Office,” he wrote in an email.
“ECCC Administration usually provides the service to all parties, has all time guarantee the good function of the court. ECCC has several independent and autonomous chambers and entities; it is impossible to provide a single response to the question on allegation of dysfunction.”
A spokesman for the office of UN Secretary-General Ban Ki-moon did not return a request for comment.
The UN has been largely silent since news of Judge Kasper-Ansermet’s resignation broke on Monday, expressing only “serious concern” about the situation at the tribunal.
The options open to the UN at this point appear limited: either appoint a new international judge and face the risk that he or she would also be stonewalled by Cambodian staff, or pull out of the court entirely, as some rights groups have urged.