In an article published this week by Voice of America’s Khmer language service, United Nations Special Expert to the Khmer Rouge Tribunal, David Scheffer, was quoted as saying:
I think in the case of these two investigative judges, clearly there were problems. We have to work those problems. We have to solve them. It is a long process, but it’s not a basis for literally ending the court. It is a basis for working the problem and overcoming those objections. You can overcome the problem in part by putting a new person in the office – one who perhaps can deal with the situation more effectively than his predecessors and with a sense of greater cooperation with the government.
Scheffer’s message raises concerns in the context of two ongoing cases (known as Cases 003 and 004) currently under judicial investigation before the UN-backed Extraordinary Chambers in the Courts of Cambodia (ECCC). Cases 003 and 004 have long been opposed by the Cambodian government and two previous international co-investigating judges resigned in the past eight months due to actual or perceived political interference in their work. The position of international co-investigating judge has now been vacant since May 1, 2012, though the appointment of a replacement is reportedly imminent.
Scheffer’s comments appear to advocate that the new judge work in a way that gives a “sense of greater cooperation with the government.” Scheffer’s statement—if accurately reported—is at odds with a basic tenet of the doctrine of separation of powers. The courts are not meant to “cooperate” with the government, nor indeed to even give a “sense of cooperation” with the government. Rather, the courts are meant to be, inter alia, an avenue of redress for abuses of political power.
As stated by prominent international criminal jurist Theodor Meron, “[…] the most important aspect of judicial independence is that independent courts are the indispensable means of holding a government to its nation's laws. In a law-abiding society, the government itself may be brought before the courts… and held to account if it oversteps its authority.”
The ECCC’s judicial officers carry an especially heavy burden to act independently and impartially in all aspects of their work, since the court has the potential to serve as a role model to the Cambodian judiciary. Daily media reports in Cambodia provide disturbing evidence of political influence over the Cambodian judiciary, and routine impunity for those who abuse public office; the ECCC is expected to set a corrective example.
Cooperating with the Cambodian government’s expressly stated will is exactly what a previous co-investigating judge—Siegfried Blunk (Germany)—did, giving rise to wide criticism that he had effectively been co-opted into shelving Cases 003/004 for political ends, without having conducted any kind of genuine investigation.
It is not incumbent upon the new international co-investigating judge (or any judge, for that matter) to cooperate with the government. Rather, it is incumbent upon the government to cooperate with the court, and to implement—without question or delay—decisions taken by its judicial officers. Article 25 of the Agreement between the UN and the Royal Government of Cambodia makes this abundantly clear: “[t]he RGC shall comply without undue delay with any request for assistance by the co-investigating judges, the co-prosecutors and the Extraordinary Chambers or an order issued by any of them...”
None of this ignores the fact that the co-investigating judges are required to cooperate with each other, whenever possible (Article 5.4). However, in circumstances where they are unable to do so, the ECCC’s founding documents also outline a means for resolving disputes between them (known as the court's “disagreement provisions”). These provisions are designed to ensure that investigations and prosecutions are not blocked by Cambodian government opposition.
Scheffer’s message would have been more effective had he placed less emphasis on “cooperation” and more on the importance of judicial independence in achieving the court’s mission. The very purpose of the ECCC is to “bring to trial senior leaders of Democratic Kampuchea and those who were most responsible” for international and domestic crimes falling under the court’s jurisdiction (Article 1, ECCC Law), thereby ending impunity for Khmer Rouge atrocities. Cambodians and the international community expect each and every one of the court’s judicial officers to apply the law even-handedly to the facts before them. The ECCC’s legacy will depend upon whether or not genuine, credible, and impartial investigations in Cases 003/004—in the face of strong Cambodian government opposition—are carried out.
Update: On Tuesday, July 17 the Spokesman for the Extraordinary Chambers in the Courts of Cambodia issued the following statement from David Scheffer, the U.N. Secretary-General's special expert on United Nations Assistance to the Khmer Rouge Trials:
I was disappointed that my recent remarks published by VOA Khmer were misunderstood. I was referring to the fact that the new International Co-Investigating Judge, when officially announced, will have been formally appointed by the Supreme Council of the Magistracy. This should help to remove many of the obstacles faced by the previous judge, Judge Kasper-Ansermet. I now look forward to full cooperation by the Cambodian component of the Court with the new international Co-Investigating Judge.