The United Nations is concerned about "worrying developments" at the Khmer Rouge tribunal in Phnom Penh, in the wake of the shock resignation of a Swiss investigating judge earlier this week.
International reserve co-investigating Judge Laurent Kasper-Ansermet announced his resignation from the UN-backed court on Monday, alleging that his Cambodian counterpart Judge You Bunleng opposed investigations into two potential cases known as 003 and 004.
"Judge You Bunleng's active opposition to investigations into cases 003 and 004 has led to a dysfunctional situation within the ECCC," Kasper-Ansermet said in a statement released by the court.
"Judge Laurent Kasper-Ansermet considers that the present circumstances no longer allow him to properly and freely perform his duties."
His resignation is due to come into effect on May 4.
In January, Cambodian authorities declined to formally appoint Kasper-Ansermet as international co-investigating judge, following the sudden resignation of German co-investigating judge Siegfried Blunk in October.
Blunk cited perceptions of "attempted interference" by officials in the two cases, as his reason for departing the court. Observers had previously called for an examination of alleged misconduct on the part of judges Blunk and Bunleng.
Martin Nesirky, spokesperson for UN Secretary-General Ban Ki-moon, said via email that the UN reiterated its January statement that the failure to appoint Judge Kasper-Ansermet breached the agreement that established the court.
"Judge Kasper-Ansermet has documented with the ECCC a series of incidents caused by the failure to appoint him as international Co-Investigating Judge and the consequent non-recognition of his authority by the Cambodian judges and staff of the ECCC," he said. "The United Nations is seriously concerned about these worrying developments."
Nesirky added that the UN was "assessing the situation" along with Special Expert on UN Assistance to the Khmer Rouge Trials, David Scheffer, who formerly served as US Ambassador-at-Large for War Crimes Issues. Scheffer could not be reached for comment.
Allegations of political meddling
The Extraordinary Chambers in the Courts of Cambodia - as the tribunal is officially known - is a hybrid court established by agreement between the UN and the Cambodian government, and includes both international and national staff.
The tribunal has long been dogged by allegations of political meddling. In the past, senior Cambodian officials have publicly expressed opposition to prosecutions beyond the current trial, which involves three former senior leaders of the Khmer Rouge regime.
Cases 003 and 004 collectively involve five former mid-level cadres alleged to have committed atrocities during the Khmer Rouge regime's 1975 -1979 rule.
Judges Kasper-Ansermet and Bunleng have disagreed over the court's controversial third and fourth cases in a series of public statements since December, with Kasper-Ansermet voicing his intention to keep the public "sufficiently informed" about the cases. Judge Bunleng consistently denied that Kasper-Ansermet had proper legal accreditation to act.
A court document released last month revealed that Kasper-Ansermet had issued an order to resume the Case 003 investigation - which was closed last April - however in documents released on Wednesday, the reserve judge alleged that attempts to investigate had been thwarted.
In the document, Kasper-Ansermet claimed that Judge Bunleng had opposed his actions to move the investigations forward and that Cambodian court staff had declined to properly place documents filed by Kasper-Ansermet on the case file. Judge Bunleng could not be reached for comment.
Court spokesperson Neth Pheaktra declined to comment on Kasper-Ansermet’s note, but said the court’s administration did not distinguish between national and international staff, and guaranteed the good functioning of the court.
He added that it was not possible to respond to questions on the allegations because the ECCC had "several offices and autonomous chambers."
At a significant crossroads
Independent monitoring group Open Society Justice Initiative on Wednesday called on the UN to clarify that the Cambodian government had breached the ECCC agreement by “obstructing the investigations of Cases 003 and 004.”
"The United Nations must now determine whether its continued partnership in the ECCC is a genuine search for truth and justice, or rather an international endorsement of a Cambodian government-controlled and politically-driven process," the group said in a statement.
Clair Duffy, an OSJI trial monitor based in Phnom Penh, said that the court was at a "significant crossroads."
"The credibility crisis that we've been talking about now for almost a year in relation to 003 and 004 is at an all-time low," she said.
Ek Tha, a spokesperson for Cambodia's Council of Ministers, said that the government had never interfered with the work of the tribunal. "[The] Cambodian government has never breached any agreement with the United Nations and Cambodian government will never breach any agreement with the United Nations in the future," he said.
Kaing Guek Eav, alias Duch, former chief of the regime's S-21 prison in Phnom Penh, is thus far the only person to have been convicted by the court for crimes committed during the Khmer Rouge period. The 69-year-old testified this week as a witness in the court's complex second case involving three former Khmer Rouge leaders. Case 002 involves Nuon Chea; former deputy secretary of the Communist Party of Kampuchea; Ieng Sary, former deputy prime minister for foreign affairs; and ex-head of state Khieu Samphan, all of whom are in their 80s.
The three defendants face charges of genocide, crimes against humanity and grave breaches of the Geneva Conventions. The case against former Khmer Rouge Social Affairs Minister Ieng Thirith - who recently turned 80 - has now been split off because she is undergoing additional medical treatment after she was declared unfit to stand trial in November.
Author: Mary Kozlovski
Editor: Grahame Lucas