UN says Khmer Rouge tribunal judge rejected by Cambodia still has 'full authority' to carry our investigations

Published: 25-Jan-12

PHNOM PENH (Cambodia Herald) - A Swiss judge rejected by Cambodia's Supreme Council of Magistracy as the international investigating judge in the Khmer Rouge tribunal still has the authority to carry out investigations regardless of his rejection, a representative of United Nations Secretary-General Ban Ki-moon said Wednesday.

Speaking after a meeting Tuesday evening with Deputy Prime Minister Sok An, UN Special Expert David Scheffer told a news conference that reported remarks by Council of Ministers spokesman Phay Siphan had "mischaracterized" his remarks and "left a misimpression of what precisely happened in that meeting."

Phay Siphan was quoted as saying that Scheffer and Sok An, who is minister in charge of the Council of Ministers, "agreed" that Cambodia's decision not to appoint the UN's appointee Laurent Kasper-Ansermet (picutred) "could not be overturned" and that both sides were now "working together to find a solution."

It was not immediately clear of the Council of Ministers spokesman had been misquoted.

But the American law professor, appointed as Ban Ki-moon's representative last week, said "there was never any agreement with Sok An and that that decision to not appoint the UN appointee could not be overturned."

"The issue on the table was the reality that the Supreme Council had indeed rejected the appointment," Scheffer said. "We would prefer to see a reversal of that decision ... but if there is not going to be such a reversal ... then we do have a very clear view of the status of Judge Laurent Kasper-Ansermet."

Reiterating a statement made by the UN spokesman in New York last Friday, he added that "the failure to appoint Mr Kasper-Ansermet is a breach of the agreement between the United Nations and the Cambodian government that governs the operation of this court.

"Recognizing that, we believe in our interpretation of the agreement, namely that regardless of that breach, the judge has full authority to operate as the international investigating judge of the Extraordinary Chambers in the Courts of Cambodia.

"It is not necessary to have an additional appointment registered by the Supreme Council ... obviously, it's preferable, it's a sign of cooperation, it's a sign of understanding that the secretary general, in exercising his treaty right to use discretion on who would be appointed into that position ... is being respected by the Supreme Council.

"But under the treaty, that decision is strictly the discretion of the secretary general. It is not the discretion of the Supreme Council. That is a treaty right and that treaty actually is part of domestic Cambodian law," he said.

"The second thing is that we do look forward to the judge returning to this country from his commitment in Switzerland this week and we look forward to him working on building a credible case file in cases three and four. And I think that's a process that will need to unfold in this country.

"If it encounters difficulties, we will deal with those difficulties when and if they arise. I was not informed at all last night that those difficulties would be presented. So my expectation now is that the secretary-general's selection of Mr Kasper-Ansermet to fulfill this function will be respected and that he will be able to fulfill his duties in the country."

Scheffer prefaced his remarks by recalling that he had a "long history" in setting up the Khmer Rouge tribunal. "As we were negotiating the creation of this court, the integrity and independence of it, and its efficiency, were paramount in our minds.

"It was a very difficult court to negotiate, perhaps the toughest that I had in the five war crimes tribunals that I did negotiate the creation of in the 1990s ... and it remains a difficult process because we're marrying domestic and international processes," he said. "It comes as no surprise whatsoever to me that there are difficulties."

Due to other commitments including teaching law, Scheffer said he would be traveling "back and forth" to Cambodia until April when he would be able to start spending "far more extended periods" in the country.