CHRAC confusion on appointment of ECCC judge

[Sent to the Cambodia Daily on January 21. Not published.]

Why is it that Cambodia Daily articles quoting the Cambodian Human Rights Action Committee’s comments on the ECCC (such as the article by Lauren Crothers, January 21-22) never mention CHRAC’s longstanding opposition to the very existence of the ECCC as a mixed Cambodian-UN tribunal?

In February 2002, when the UN pulled out of the negotiations to establish the ECCC, CHRAC was among the loudest and most vehement of the NGOs applauding what appeared to be the end of the idea of a mixed tribunal. CHRAC issued a press release announcing its “understanding of and support for the United Nations decision to withdraw from the current process of establishing a tribunal for the Khmer Rouge”. The release went on to urge the UN to set up a Khmer Rouge court without involving the Cambodian government.

CHRAC’s hostility to the ECCC appears to be equalled only by its ignorance. What sort of confusion produced the statement that there is an “on-going disagreement between the national and international Co-Investigating Judges” over the appointment of Judge Laurent Kasper-Ansermet as a co-investigating judge? Does CHRAC really think the that co-investigating judges appoint themselves?

Perhaps it does, judging from its complaint about the “intervention” of the Supreme Council of the Magistracy in Judge Kasper-Ansermet’s appointment. CHRAC appears unaware that all of the ECCC judges are appointed via the SCM. (Article 134 – New of the Constitution: “The Supreme Council of the Magistracy shall make proposals to the King on the appointment of judges and prosecutors to all courts.”) If the SCM had not “intervened” in appointments, the ECCC would have no judges at all. But perhaps it’s not ignorance; perhaps that is what CHRAC really wants.

Unfortunately, some of CHRAC’s ignorance seems to have rubbed off on your reporter, who wrote that “wording in the agreement [to establish the ECCC] specifically states that the reserve judge ‘must’ be appointed to the position” of co-investigating judge. This reverses the real meaning.

What Article 5(6) actually says is: “If there is a vacancy or a need to fill the post of the international co-investigating judge, the person appointed to fill this post must be the reserve international co-investigating judge”. The agreement thus does not cancel the constitutional powers of the SCM or the King to appoint judges, which is meaningless unless it includes the power not to appoint. It only specifies that the SCM will not appoint some other person to the position, which of course it has not done.

If it is true that the SCM has declined to appoint Judge Kasper-Ansermet, perhaps the SCM was moved by the judge’s much publicised internet postings that reveal firm preconceptions about the matters he would need to adjudicate if he were appointed. It seems to me that a human rights organisation should attach more importance to the danger of a prejudiced judge than to a misreading of technicalities in the ECCC agreement.

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