Judge rejection ‘a breach’

Cambodia has breached its agreement with the United Nations by refusing to appoint the UN-nominated investigating judge at the Khmer Rouge tribunal, UN Secretary-General Ban Ki-moon’s spokesman said over the weekend. 

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Khmer Rouge tribunal reserve co-investigating judge Laurent Kasper-Ansermet in a photo taken last year.

The UN voiced “serious concern” in a statement released in New York on Friday over Cambodia’s “unfounded” rejection of Swiss judge Laurent Kasper-Ansermet. “The Royal Government of Cambodia raised ethical concerns in relation to Judge Kasper-Ansermet in November 2011,” spokesman Martin Nesirky said in a statement.

“The United Nations thoroughly reviewed the concerns, determined that they were unfounded, and requested that the Supreme Council of the Magistracy proceed with his appointment,” Nesirky said. “Cambodia should take immediate steps to appoint [Kasper-Ansermet] as International Co-Investigating Judge.”

Tomorrow, the UN’s newly appointed Special Expert at the tribunal, David Scheffer, will meet with Deputy Prime Minister Sok An, who chairs the Royal Government’s taskforce on the ECCC.

“Deputy Prime Minister Sok An is scheduled to hold bilateral talks with the newly appointed Special Expert at the ECCC, David Scheffer,” Press and Quick Reaction Unit vice-president Keo Remy told the Post.

“I regret the comments made by [Nesirky] … as he did not look at all corners [of the agreement between Cambodia and the UN],” Keo Remy said. 

“Especially, his comments should not have been made before the meeting between David Scheffer and Deputy Prime Minister Sok An – from the Cambodian side, we respect the agreement and have not made any comments before this high-level meeting.”

Court spokesman Lars Olsen told the Post that Scheffer was meeting with several government and ECCC officials during his visit, the first in his new role.

When asked about the purpose of these meetings, Olsen referred to the UN’s weekend statement.

The Cambodian Supreme Council of the Magistracy met on January 13 and, despite an obligation to rubber-stamp the UN’s nominee under the 2003 agreement that created the tribunal, refused to appoint him.

The council delivered their decision last Wednesday to Deputy Prime Minister Sok An, who chairs the government’s task force on the tribunal, Justice Minister Ang Vong Vathana told the Post last week.

The government’s “ethical” concerns relating to Kasper-Ansermet reportedly include his use of social-media site Twitter, which the Swiss national has used to evince his determination to investigate controversial cases 003 and 004, which are opposed by the government.

On Thursday, Human Rights Watch’s Phil Roberston told the Post that concerns about Kasper-Ansermet’s use of Twitter were “not legitimate”.

Supreme Council of the Magistracy members could not be contacted for comment about the rejection of Kasper-Ansermet yesterday. 

Open Society Justice Initiative’s Clair Duffy told the Post yesterday that the government’s “ethical” concern with the appointment of Kasper-Ansermet is “just another chapter in the Case 003/004 saga that’s engulfed this court for years now”. 

“I think the Cambodian government vetoing a UN judicial appointee is a seriously low point in the Case 003/004 saga,” Duffy said by email yesterday. “I would urge the UN and donors to demand that the government unequivocally cooperate on Cases 003/004. The future of this court depends upon good faith cooperation of the government in respect of all cases.”

Council members include the tribunal’s Cambodian co-prosecutor Chea Leang, who has voiced her opposition to cases 003 and 004 because she believes the suspects fall outside the tribunal’s jurisdiction and the Cambodian/UN agreement envisaged the prosecution of a “limited number of people”. 

Cambodian co-investigating judge You Bunleng also sits on the Council. The failure of Bunleng, and his former co-investigating judge Siegfried Blunk, to conduct proper investigations into cases 003 and 004, was the subject of a letter from staff who had quit in protest to the UN in May last year.

Blunk and Bunleng abruptly closed investigations into Case 003 in April. Blunk later resigned in October.

Kasper-Ansermet told the Post last week that he had reached several important decisions on cases 003 and 004, but was effectively “walking in shackles”.  source

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Ieng Thirith’s fitness on trial

Photo by: Reuters

Former Khmer Rouge Social Affairs Minister Ieng Thirith attends a hearing at the Khmer Rouge tribunal yesterday in Phnom Penh.

Former Khmer Rouge Social Action Minister Ieng Thirith has “dementia” and would likely “interrupt” proceedings if she were declared fit to stand trial in the Khmer Rouge tribunal’s upcoming second case, psychiatric experts testified yesterday.

United Kingdom forensic psychiatrist Seena Fazel and Cambodian psychiatrist Lina Huot testified that Alzheimer’s disease was the “most likely form of dementia” for the 79-year-old, who stands accused of war crimes and genocide.

The two experts testified that while “broadly speaking” Ieng Thirith grasped the charges against her, she did not have sufficient understanding to stand trial. “I think in all likelihood it would interrupt the smooth running of any trial,” Seena Fazel said in court. 

“It’s likely her abilities will fluctuate, that there will be occasions where she may not be able to attend court and … where she’ll need some extra input from her legal team because of her problems with her memory.”

The two were among four psychiatric experts appointed by the court to conduct further assessment of Ieng Thirith, following hearings in August at which New Zealand geriatrician John Campbell stated that she would have “great difficulty” testifying in her own defence.

The hearing into Ieng Thirith’s fitness to stand trial will continue today, while a decision on former KR Brother Number Two Nuon Chea’s fitness to stand trial is pending.

Meanwhile, at a hearing on reparations for civil parties, civil party lawyers said they had concerned about the potential impact the recent severance of case 002 into a series of discrete trials could have on civil parties.

“Severing the case significantly alters the scope of our requests and we are in a confused situation,” civil party lead co-lawyer Elisabeth Simonneau Fort said in court.

Civil party lawyers are concerned more than half of the 4,000 civil parties in Case 002 may miss out on any reparations if there are no subsequent trials in Case 002 – a likely scenario given the advanced age of the four accused.

The Trial Chamber announced this week that opening statements in case 002, which is set to try the four remaining senior leaders of the KR regime, would commence on November 21.

http://www.phnompenhpost.com 

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Case 002 start date set

The Khmer Rouge Tribunal Trial Chamber announced a start date of November 21 for the first trial in Case 002 against four of the Democratic Kampuchea regime’s most senior leaders yesterday.

The announcement of the start date was accompanied by the Trial Chamber’s rejection of the co-prosecutors’ request to reconsider the format of Case 002, which has been split into several, discrete trials. 

Opening statements will begin on November 21, with the court set to hear initial evidence the following week, according to a scheduling order issued by the Trial Chamber.

Former KR “Brother No 2” Nuon Chea, Defence Minister Ieng Sary, nominal head of state Khieu Samphan and Social Action Minister Ieng Thirith all stand accused of crimes against humanity, genocide and grave breaches of the Geneva convention. However, the first trial in Case 002 will only address crimes against humanity in respect to forced movements of the population.

Last month, the Trial Chamber ordered that Case 002 be split into a series of separate trials that will address different aspects of the KR regime in the interests of expediency for both victims and the accused.

The co-prosecutors requested that the format of the case be reconsidered, as the exclusion of certain alleged criminal acts from the first trial, such as those committed at security centres and execution sites, removed from that trial “the massive scale of the crimes and the extreme seriousness of the alleged criminal behaviour of the accused”.

“The Chamber has declined to reconsider this [Severance] Order or to hold a hearing, which would ensure that the substantive trial could instead not open before 2012,” yesterday’s decision from the Chamber read.

Court spokesman Lars Olsen said yesterday that the Chamber will hear opening statements before proceeding with the substantive evidence of the trial. “There will be an order to call 

witnesses to give evidence, but this list is confidential until they appear in court,” he said.

Civil party lawyers expressed concern that the severance order did not sufficiently take victims into account.

“There are nearly 4,000 civil parties, and the severance order does not seriously consider the high number of victims –  and the gravity of the crimes they suffered – that will not be able to participate in this trial,” civil party lawyer Silke Studsinsky said. “My concern is that this first case will only concern forced transfers, and any other civil parties not related to forced transfers do not have the right to participate in this trial and so will not have the right to reparations.”

A hearing with civil party lawyers regarding reparations requests is scheduled to begin today.

The scheduling order calls for the co-prosecutors to deliver an opening statement on the entire indictment, despite the Trial Chamber's decision to split Case 002 into several trials. The subject matter of the subsequent trials has not yet been made public.

 http://www.phnompenhpost.com

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Tweeting judge’s cyber diary

Photo by: ECCC

Co-investigating judge Laurent Kasper-Ansermet of Switzerland in this undated file photo.

Judge’s tweets

October 13
#Cambodia #KhmerRouge National Co-investigative Judge is “resolved to resist to any attempt to interfere into his works from any source”.

October 13
#KhmerRouge Ministry of foreign affairs: the Royal Government of Cambodia has the primary duty to protect peace and national reconciliation”day.

October 12
ind.pn/pGLuX3 #UN : the #Krtribunal has to proceed “without interference from any entity, including the Royal Government of Cambodia”

October 4
bit.ly/nrW3nA #KhmerRouge #HumanRights Co-investigating judges “have egregiously violated their legal and judicial duties” #UN
Oct 4

September 4
bit.ly/nCZLi7 #KhmerRouge : Officials for Japan and France say they want to see proceedings toward a trial of #Case002 advance”

June 17
http://bit.ly/muuaeq “UN had failed to address major questions requesting the credibility of the court” #KhmerRouge #HumanRights #Cambodia”

Many have asked: “WHY isn’t the Khmer Rouge tribunal going after more bad guys?”

It’s a question on the mind of new tribunal Co-Investigating Judge Laurent Kasper-Ansermet – or at least was on August 21 when he retweeted an article asking exactly that.

In the wake of German judge Siegfried Blunk’s shock resignation, his successor – who has yet to assume office – is set to dive straight into the crisis of credibility now engulfing the tribunal. That crisis, and the importance of the United 

Nations in negotiating a resolution, is something that Kasper-Ansermet’s twitter feed shows him to be keenly aware of.

The Swiss judge, who appears to have opened the twitter account on May 17, frequently retweets civil society statements about the tribunal, including links to Open Society Justice Initiative and Human Rights Watch reports, including a recent HRW report calling for the resignation of co-investigating judges Blunk and You Bunleng. 

The twitter feed provides a rare insight into the interests of Kasper-Ansermet, who appears to be an avid monitor of anti-corruption civil society movements such as those seen in Tunisia, Egypt, Libya and the recent Occupy Wall Street protests. 

“What’s your answer about criticism (OSJI) for UN handling of a controversial case at the #KhmerRouge Tribunal? #asktheSG #Cambodia,” he tweeted on September 13, referring to an OSJI report criticising the lack of UN activity in response to continued allegations of political interference in the tribunal’s work.

It is not yet confirmed whether Kasper-Ansermet is in Phnom Penh, otherwise, the judge may have had the opportunity to “#asktheSG” (ask the UN Secretary-General) during a planned visit by UN Under-Secretary General for Legal Affairs Patricia O’Brien, who is scheduled to meet with court and government officials to address concerns at the tribunal. 

Kasper-Ansermet has also tweeted links to court documents from Kheiu Samphan’s defence team calling for investigating judges to be removed, and on June 29, retweeted a comment from a New Zealand MP on cases 003 and 004, who said it was  “reasonable to pursue cases 003/004 against Sou Met, Meas Muth, Ta An, Ta Tith and Im Chaem”.

Blunk and his Cambodian counterpart You Bunleng in August threatened news agency VOA with a contempt of court suit for publishing confidential documents that named the suspects in cases 003 and 004 and government officials have spoken out against pursuit of any additional Khmer Rouge suspects by the tribunal and monitoring groups have accused the government of interfering in the work of the tribunal.

Several of his tweets provide links to articles on KI Media, a well-known pro-opposition website in Cambodia. While Kasper-Ansermet’s embrace of public discussion runs contrary to some of the policies of his predecessor, under the Universal Declaration of Human Rights, which forms part of national law in the Kingdom, judges are entitled to the same rights of freedom of expression as other citizens. 

Kasper-Ansermet has had a colourful career. Before graduating from the University of Geneva with a law degree in 1978, he completed tertiary studies in visual arts and journalism. 

The tribunal website states that he has “more than 18 years’experience … focusing particularly on complex financial crimes and corruption.” He was involved in the high-profile investigation of the possible misuse of a US$4.8 billion loan from the International Monetary Fund to Russia in 2004.

At the time, UK newspaper The Times reported that “the investigation was marred by violent intimidation. Kasper-Ansermet, the investigating magistrate who launched the Swiss investigation, was left bleeding and unconscious in an attack in St Petersburg on a visit to Russia.”

While he may not face that sort of physical intimidation in Cambodia, his new role at the tribunal brings its own intense challenges. “There will be pressure on any new judge because of the credibility crisis at the court,” OSJI’s Clair Duffy told the Post yesterday. 

“I think the pressures will largely depend on what happens with the UN Office of Legal Affairs and the Royal Government of Cambodia,” she said, referring to this week’s visit by O’Brien. 

Yesterday, the tribunal had no further updates on when Kasper-Ansermet would assume his new role. Blunk is currently on annual leave until October 31. Kasper-Anserment said he would not be answering media queries before he had officially assumed his role at the tribunal.  http://www.phnompenhpost.com

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UN official set for visit to KR tribunal

reaction

Chea Voleak, 26, fourth-year student, from Phnom Penh

“From my point of view, 70 to 80 per cent of the population are already aware of the Khmer Rouge regime, so I think it would be okay to stop the KRT.  I’m not surprised by the judge’s resignation, as this is the second time it’s happened.


Kim Neangpov, 51, vendor, from Prey Veng province

I want the Khmer Rouge tribunal to continue until the end to find out right and wrong and for the victims to get justice. My right leg was disabled after a landslide fell on me when I was carrying soil during the Pol Pot regime.


San Savy, 43, security guard, from Takeo province

I think that the trials at the Khmer Rouge tribunal should be ended because they have taken a long time and cost a great deal of money. Please take the money to help the flood victims in Cambodia instead.


Chen Vuthy, 28, bookseller, from Battambang province

I do not know a lot about the Khmer Rouge tribunal, but I think that the proceedings are very important for all kinds of Cambodian people, particularly the victims. I want the KRT to continue its activities so that justice is rendered to the victims.

A high-ranking United Nations legal counsel is due at the Khmer Rouge tribunal this week to add-ress ongoing concerns about government interference in the court’s work.

The visit by UN under-secretary general for legal affairs Patricia O’Brien follows last week’s resignation of German Co-Invesigating Judge Siegfried Blunk, who cited perceptions of political interference at the court as the impetus for his resignation.

“In addition to concerns regarding the issue of government interference, there have also been concerns raised with respect to other aspects of the court’s work, which will be addressed during the visit,” UN spokesman Martin Nes-irky said in a statement.

Details of  the “other aspects” of the tribunal’s work alluded to in the statement were not available yesterday.

“The program for the under-secretary general’s visit has not been confirmed yet,” tribunal legal affairs spokesman Lars Olsen said, adding that the visit was being coordinated by UN headquarters. Other staffers at the tribunal contacted yesterday were unaware of the details of O’Brien’s visit beyond what was released in the statement.

Rights groups have been calling for the UN to take a stronger stand on allegations of political interference at the tribunal since its inception. 

Following Judge Blunk’s resignation, Amnesty International Asia-Pacific director Sam Zarifi said it was “vital that the UN acts to safeguard the tribunal’s future”.

The visit appeared to be a sign the UN was engaging more with the court, Clair Duffy, tribunal monitor for the Open Society Justice Initiative, said yesterday.  “This is a sign, but it is not enough. We need to see results. The public need to know how the tribunal is operating,” Duffy said.

The UN has repeatedly stressed that the tribunal must be able to do its work without outside interference and it has previously remained hands-off in response to consistent allegations of political interference and calls for an independent investigation of the tribunal.

In addition to concerns about political interference, funding remains a pressing issue for the court.

“We can see already how budget restrictions are affecting cases 003 and 004,”  Duffy said. “There has been absolutely no budget for victim outreach in cases 003 and 004.”

Tribunal spokesman Lars Olsen told the Post no donors had pledged financial support for the tribunal in 2012.

The court’s budget was under preparation and would be finalised by November or December, when donors would “probably” pledge support.

The UN described 2011 as the “peak pain threshold” for donor funding, according to US embassy cables dated January, 2010 and published by anti-secrecy organisation WikiLeaks this year.

On Friday, the US pledged US$1.65 million to the tribunal as the first of three instalments projected to total $5 million, but it was unclear yesterday whether any of those instalments would be made in 2012.

Referring to the tribunal’s second case, US ambassador-at-large for war crimes issues Stephen Rapp said: “Given the gravity of the alleged crimes and the level of defendants, this is now the most important trial in the world.”

US embassy spokesman Sean MacIntosh could not be reached for comment.

The tribunal’s budget for 2011 was $43.3 million, with 21 countries pledging financial aid for the international component of the tribunal.

According to a news release from the US State Department, the US contributed almost $2 million to the tribunal in 2008 and $5 million in both 2010 and 2011.

http://www.phnompenhpost.com

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KRT has 'right' to investigate

Photo by: Julie Leafe

The photographs of victims of the Khmer Rouge at Tuol Sleng Genocide Museum in Phnom Penh. More than 14,000 people were condemned to their deaths at the infamous Tuol Sleng prison.

Foreign Minister Hor Namhong said yesterday that the Khmer Rouge tribunal had the right to conduct investigations into the court’s third and fourth cases, following the resignation of international Co-Investigating Judge Siegfried Blunk in response to perceived political interference at the tribunal.

“[The government] clearly knows that the investigations into cases 003 and 004 are the right of the tribunal,” Hor Namhong told reporters at a press conference, following a meeting with Serbian Foreign Minister Vuk Jeremic.

He emphasised, however, that the government had to take responsibility for any outcome stemming from the court that caused “instability”. 

“If this UN-backed KR tribunal does something that leads to instability of peace or war happens again in Cambodia, who will take responsibility? The government is taking responsibility for the national fate,” he added.

According to Judge Blunk’s press release issued by the court on Monday, his decision to quit was sparked by statements from government officials regarding cases 003 and 004.

However, Hor Namhong yesterday denied that he had made comments in a media report, cited in Judge Blunk’s statement, which quoted him as saying that Cambodia must decide whether to arrest further former Khmer Rouge leaders.

Last year, Hor Namhong told reporters that Prime Minister Hun Sen had told UN Secretary General Ban Ki-moon that he would not allow prosecutions beyond the court’s second case.

The United Nations confirmed yesterday that it had “noted” Judge Blunk’s stated reason for his resignation.

Martin Nesirky, spokesman for the UN Office of the Secretary General, said via email: “We will continue to monitor the situation at the ECCC closely, including in consultation with the Royal Government [of Cambodia].”

Rights groups yesterday pressed the UN to address concerns about the tribunal’s independence. In a statement, Amnesty International urged the UN to emphasise that any attempts to influence the court’s work “will force the UN to review its involvement”.

“Any attempt by the Cambodian government to influence the work of the ECCC undermines the entire tribunal,” Amnesty International Asia-Pacific director Sam Zarifi said.

New York-based independent monitoring group Open Society Justice Initiative welcomed Judge Blunk’s resignation and reiterated its request for the UN to open an inquiry into “allegations of judicial misconduct and incompetence during his 10 months in the position”.

“The UN needs to seek public guarantees from Prime Minister Hun Sen and his government of full cooperation in all four of the open cases before the court,” OSJI executive director James A Goldston said in a statement. “If those guarantees are not forthcoming, the UN should reassess its commitment to the court.”

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Controversial KRT judge resigns

Co-investigating judge Siegfried Blunk is seen at the Khmer Rouge
tribunal on the outskirts of Phnom Penh in August. Photo by: HENG CHIVOAN

THE Khmer Rouge Tribunal’s international Co-Investigating Judge Siegfried Blunk has submitted his resignation to UN Secretary-General Ban Ki-Moon.

His resignation is in reaction to repeated statements of government officials that the tribunal’s cases 003 and 004 will not go ahead.

“The Co-Investigating Judge will not let himself by influenced by such statements, (but) his ability to withstand such pressure by government officials and to perform his duties independently could always be called into doubt,” a press release from the court said today.

The press release pointed to high-profile statements by Prime Minister Hun Sen, the Information Minister and the Foreign Affairs Minister as evidence of continued pressure from the government to close cases 003 and 004.

New York-based Human Rights Watch last week called for Blunk and Cambodian Co-Investigating Judge You Bunleng to resign over alleged judicial misconduct in their investigations into cases 003 and 004.

At the time, court spokesman Lars Olsen said on behalf of the Co-Investigating Judges that they would continue to perform their duties “independently”. According to PPP

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Photo by: ECCC

Brother Number 2 Nuon Chea is one of four Khmer Rouge leaders who are suspects in Case 002.

Civil party lawyers are preparing for an initial hearing at the Khmer Rouge Tribunal on potential reparation deals for victims associated with the court’s second case.

However, a significant proportion of victims who have been granted civil party status may be ineligible to receive reparations in the first trial of Case 002, which has been split into smaller pieces in an attempt to speed up proceedings.

The first trial in Case 002 is set to concern crimes associated with the forced movement of the population during the early years of the Democratic Kampuchea regime – a decision the Co-Prosecutors have requested the Trial Chamber reconsider.

“A large number of civil parties are excluded from the first trial in Case 002, including those who were victims of forced marriage and religious persecution,” Civil Party Lead Co-Lawyer Silke Studinsky said yesterday, ahead of the hearing slated for October 19. 

“Nobody has any idea if another trial will take place after the first one,” Studinsky said, referring to the advanced age of the four accused in Case 002. Under the reparations framework of the tribunal, it is possible access to reparations end with the death of the accused.

Photo by: ECCC

Case 002 suspect Ieng Tharith.

The tribunal is the first internationalised court with a clear mandate to provide justice to victims through “moral and collective” reparations, which could come in the form of projects to provide victim support. 
Clair Duffy from the Open Society Justice Initiative said there remain many “interesting questions” for the court on the subject of reparations. 

“The trial chamber in Case 001 construed its power to award reparations narrowly,” Duffy said by email yesterday. 

“This court is facing some of its most serious challenges yet, including how to set as accurate an historical record as possible.

“The discussions we’re now seeing could highlight a way of proceeding with a part of the indictment that gets to the heart of the crimes in a more representative way,” she added.

The tribunal’s Legal Affairs Officer Lars Olsen said yesterday that a group of international reparations experts would be visiting the tribunal next week for a “sharing experience workshop” with judges and lawyers.

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