The Open Society Justice Initiative is calling on the Cambodian government and the United Nations to ensure that the newly appointed international investigating judge at the Khmer Rouge tribunal is free to work without the political interference that has increasingly threatened the court’s credibility.

Mark Harmon, an American, will be the third judge to occupy the position of international co-investigating judge at the court in nine months, following the resignations of Judge Siegfried Blunk in October last year, and Judge Laurent Kasper-Ansermet in May this year.

James A. Goldston, executive director of the Open Society Justice Initiative, said: “We are pleased that a new investigating judge has been confirmed. The test now is whether the Cambodian government will allow him to do what his predecessors could not: effectively and thoroughly investigate the two remaining cases—003 and 004—on the Court’s docket.”

Judge Harmon will serve in the office of Co-Investigating Judges (OCIJ) at the court, officially known as the Extraordinary Chambers in the Courts of Cambodia (ECCC), which uses both Cambodian and UN-appointed judicial officers and staff members. Together with his Cambodian colleague, You Bunleng, Judge Harmon will be responsible for the investigation and, as appropriate, indictment of individuals referred to him by the court’s Office of the Co-Prosecutors.

The investigating judges have been the focus of years of controversy over two outstanding investigations, known as Case 003 and Case 004, involving five former Khmer Rouge figures. Cambodian government officials have repeatedly said that those cases should not go forward, and that the ECCC’s work should conclude with the current prosecution of three surviving senior Khmer Rouge leaders (Case 002).

Ban Ki-Moon, Secretary-General of the United Nations, urged all sides in March to consider the selection of the new judge as an opportunity to “enable the ECCC to carry out its obligations in full by considering all of the cases before it in accordance with international standards of fairness”.

Judge Harmon’s three predecessors were:

• Judge Marcel Lemonde (France) held office from the ECCC’s inception, until his resignation in November, 2010. While Judge Lemonde resigned for personal reasons, his attempts to move the Case 003/004 investigations forward attracted the public opposition of Judge You Bunleng.
• Judge Siegfried Blunk (Germany) held office from 1 December 2010, until his resignation in October, 2011. Judge Blunk resigned due to “perceived” government pressure. By the time he resigned, a number of his international staff had walked out in protest over his joint premature closing of the Case 003 judicial investigation. The investigation was officially resumed by his successor.
• (Reserve) Judge Laurent Kasper-Ansermet (Switzerland) held office (as reserve) from November 2010, until his resignation on May 4, 2012. Although ECCC Law clearly stipulates that the Cambodian government was required to endorse Judge Kasper-Ansermet’s appointment as full investigating judge, it refused to do so in breach of the Cambodia/ United Nations agreement establishing the court. Judge Kasper-Ansermet’s authority was not recognized by the Cambodian government, nor any Cambodian judge or decision-maker in the ECCC. His impotence in the face of this opposition led to his resignation.

In light of the history to Cases 003/004 before the ECCC, the Justice Initiative notes:

(1) The Co-Investigating Judges must be independent in the performance of their functions and must not accept or seek instructions from any government or any other source. (ECCC Agreement, Art. 5.3, ECCC Law Art. 10 new, and ECCC Code of Judicial Ethics)

(2) Judicial investigations are compulsory for crimes within the ECCC’s jurisdiction, must be conducive to ascertaining the truth, and must be conducted impartially (Internal Rule 55).

(3) While all investigations are the joint responsibility of two judges, one Cambodian and one foreign, who must cooperate with a view to arriving at a common approach to any given investigation (ECCC Agreement, Art. 5.4), the ECCC Law and Agreement provide a mechanism according to which judges can disagree on matters of substance (ECCC Law, Art. 23 new). Under ECCC Law and the Agreement, in the event of a disagreement between the co-investigating judges, the presumption is always in favor of any given investigation moving forward (ECCC Agreement, Art. 5.4, Internal Rule 72.4(d)).

(4) In spite of the Cambodian government’s refusal to recognize the legitimate authority of Judge Laurent Kasper-Ansermet, according to the law governing the ECCC’s operations all actions taken by him during his tenure as reserve co-investigating judge were valid. One of Judge Kasper-Ansermet’s key actions was to resume the Case 003 investigation. The Case 003 investigation is therefore currently on foot. The same position applies to Judge Kasper-Ansermet’s decisions concerning the admission of civil parties, and the assignment of counsel to any Case 003/004 suspects. The validity of Judge Kasper-Ansermet’s actions is further endorsed by the United Nations’ position on his legitimate authority, and by the international judges of the ECCC’s Pre-trial Chamber’s position on his conduct and legitimate authority.

(5) Despite the funding crisis which the ECCC continues to face, Cases 003 and 004 are properly before the Co-Investigating Judges and should be genuinely and credibly dealt with by judicial authorities. While the Justice Initiative considers that financial constraints should not be permitted to hamper the ongoing investigations in these cases, there must be absolute transparency if financial constraints—or indeed any other strictly political considerations—limit the judges’ ability to fulfill their obligations.