Exit, Voice, and Loyalty at the Khmer Rouge Tribunal: Should the International Community Stay or Go?

http://www.flickr.com/photos/39971069@N02/3737832877 Courtesy of Extraordinary Chambers
in the Courts of Cambodia
, (CC)

The views expressed here are the author's alone.

The United Nations Assistance to the Khmer Rouge Tribunal (UNAKRT) is in trouble. UNAKRT, also known as the Extraordinary Chambers in the Courts of Cambodia (ECCC) was the product of a 2003 UN-Cambodia Agreement that jointly aspired to provide justice to Cambodian victims for atrocities committed by the Khmer Rouge in Cambodia from 1975-1979. Currently, Case 002/01 is trying the senior most former Khmer Rouge leaders, Nuon Chea and Khieu Samphan. Third defendant Ieng Sary's death on March 14, 2013 is the latest development to occur amidst other problems that threaten to prematurely end Case 002/01, as well as the future of the court.1

One of the gravest problems the Court faces is financial. Just prior to Ieng Sary's death, Cambodian interpreters and translators who had not been paid since November 2012 went on strike for two weeks, effectively halting proceedings. Strikers resumed work after receiving promises from Court management that they would be paid for December, but they may walk out for good if this trend continues in the future.2 Without Cambodian staff Case 002/01 cannot finish.

The ECCC's budget crisis is not new,3 but the context in which it now occurs can provide insight into the question of how much responsibility the international community has invested in the ECCC.

To explore this question, I start with the premise that the ECCC's financial deficit is an effect of a much deeper cause. I argue that at root, there is a responsibility deficit that lies in the unfulfilled terms of the 2003 UN-Cambodia Agreement, which together with the ECCC Law, established the ECCC. This article focuses on the responsibilities of the international community and argues that a good faith commitment to the ECCC must include engagement of non-financial assistance that reflects the UN's commitment to human rights and rule of law development. The ECCC, as an endeavor that is part of developing rule of law in Cambodia, falls well within the parameters of these responsibilities. By analyzing stakeholders' non-financial obligations to the ECCC, this article hopes to put the court's value into a broader context to help participants, observers, and critics understand exactly what is at stake in leaving, or continuing to support the ECCC.

To illustrate my argument, I employ economist Albert Hirschman's framework of "exit, voice, and loyalty," traditionally used to measure the decline of a firm or polity. By analyzing the ways in which members have expressed their dissatisfaction with the ECCC through "exit," "voice", and "loyalty," I note what effect, if any, these responses have had on motivating the international community to fulfill its responsibilities towards the tribunal.

The Basis of International Responsibility at the ECCC

The UN and Cambodia have a legal agreement to cooperate with each other in the development of the ECCC as set out in the 2003 UN-Cambodia Agreement (hereafter, Agreement).4  Within it, the UN committed itself to financial and non-financial obligations to fulfill this goal. Financial responsibility is bifurcated between the UN funding the international staff, and the Royal Government of Cambodia (RGC) funding Cambodian staff, pursuant to Articles 15-17 of the Agreement. The UN, with the aid of donations from the international community, has done its part supporting the international side of the court. But the Cambodian side has consistently struggled to stay afloat due to inadequate funding from the RGC, and the reluctance of the international community to fulfill the government's responsibility for them.5

Current donor fatigue would appear to be well-founded. Since the beginning of case 002/01 in June 2011, the ECCC has faced allegations of political interference,6 seen the resignation of half of the Nuon Chea Defence Team, received criticism from within and without regarding procedural irregularities, and experienced delayed proceedings due to the failing health of the aging accused.7 There is no viable guarantee that this case will successfully finish, or that future proceedings will commence.8 To date, the ECCC has only successfully completed Case 001 against former warden of Tuol Sleng Prison, Kaing Guek Eav, a.k.a. Duch, who was convicted for war crimes, crimes against humanity, torture, and murder, and sentenced to life imprisonment. It is too simplistic, however, to evaluate the ECCC within a traditional cost-benefit framework. Part of what makes the ECCC unique is that these courts are located within the country where the atrocities were committed. Accordingly, the ECCC's raison d'être includes the goal of stimulating public debate on a period of history that was previously a taboo subject, and conducting transparent proceedings in front of the Cambodian public according to international fair trial standards. The necessity for a model of justice is imperative for rebuilding Cambodia's rule of law infrastructure, which was decimated during the Khmer Rouge regime's attempts to install a communist agrarian utopia in the 1970s. The UN has the prerogative and capability to contribute to this larger goal by assisting in the supervision and guidance of the conduct of proceedings.9 It is this normative aspect of the 2003 Agreement that remains unfulfilled.

The Framework: Exit, Voice, and Loyalty

In 1970, Albert Hirschman created a framework to understand how members respond to the declining performance of an organization.10 The basic premise is valid for application to the ECCC–the tribunal is in organizational decline and has not been performing according to expected standards, as set out in the Agreement. In this scenario, the member(s) may express dissatisfaction by "exiting" from the organization; they may remain with the organization but attempt to improve its deterioration through "voicing" this discontent; or they may remain out of "loyalty" to the organization based on a belief that with the loyal members' presence, the organization will either rectify its behavior, or at least not deteriorate further. In all three responses, the goal is to motivate the organization to reform its behavior, with the emphasis on increased opportunities for voice, and decreased opportunities for exit.

Exit at the ECCC

At the ECCC, a pattern of exit emerged early on when several co-investigating judges and their staff resigned over failed attempts to adequately investigate cases 003 and 004.11 In the Agreement, co-investigating judges have a judicial and ethical duty to conduct fair and impartial investigations into these cases, which concern lower-ranking members of the Khmer Rouge for their role in committing crimes against humanity, war crimes, and genocide.12 The RGC's opposition to these cases is no secret, but international co-investigating judge Siegfried Blunk's complicity with his national counterpart on the matter created a compromising situation for the UN.13 In response to vocal criticism about the judges, the head of the UN's Office of Legal Affairs, Patricia O'Brien, met with Cambodia's Deputy Prime Minister Sok An to discuss the controversy.14 Her visit led to a press statement that urged the RGC to refrain from opposing progress in Cases 003 and 004, but did not result in proper investigations into the allegations against the co-investigating judges. Instead, Judge Blunk resigned on October 8, 2011 and was replaced by international reserve co-investigating judge, Laurent Kasper-Ansermet.15 In contrast to his predecessor, Kasper-Ansermet attempted to investigate cases 003/004, but was prevented from moving forward by his national counterpart and the RGC, who blocked his appointment as a co-investigating judge in breach of the Agreement.16 Kasper-Ansermet responded by unabashedly exercising his "voice" via his twitter account17 – broadcasting the Cambodian government's attempts to squash his investigation. When his pleas fell on deaf ears, Kasper-Ansermet resigned no more than six months after Judge Blunk's exit.

In Hirschman's model, "exit" is an effective response when members who are dissatisfied with an organization have alternative organizations to choose from, thereby providing competitive incentive to the faltering organization to reform. But the ECCC does not face any competition from alternative international or national courts in Cambodia that would be able to conduct a trial of such magnitude as holding former senior Khmer Rouge leaders accountable.18 In so far as justice is a product, and the ECCC is the provider, if the international community wishes to invest in creating meaningful justice for the Khmer Rouge crimes, the ECCC is all it has. In cases where such a monopoly power exists over the desired product, Hirschman notes that consumers have no choice but to actively express their discontent through voice.

Voice at the ECCC

One of the most provocative voices at the ECCC came from the former international lawyers for the Nuon Chea Defence Team (NCDT) who raised allegations of corruption and political interference both inside and outside the courtroom. In court, the lawyers quoted rap lyrics, singled out judges whom they believed to be particularly unfair to their objections, and raised allegations of political interference in the proceedings through their cross-examinations. In response, the Trial Chamber cut off the lawyers' microphones, filed complaints to the lawyers' respective bar associations back home, and had individual members of the team forcibly removed from court due to contempt of court proceedings. Outside of the courtroom, the lawyers continued to voice their grievances about ECCC practice through numerous submissions with the Office of the Co-Investigating Judges,19 the Trial Chamber,20 and the Supreme Court Chamber.21

Though it is debatable whether all of their claims had legal merit, it is undeniable that they brought to the UN's attention instances where the lack of integrity in judicial proceedings violated their client's rights to a fair trial, 22 and threatened the legitimacy of the ECCC. Their voices however had little impact on getting the stakeholders to go beyond the proverbial raised eyebrow. After months of clashing with the judges, the international lawyers for the NCDT exited the court in January 2013.

Hirschman notes that, "for voice to function properly it is necessary that individuals possess reserves of political influence which they can bring into play when they are sufficiently aroused."23 The NCDT aggressively and unequivocally exercised their voices, but they did so to the chagrin of the exasperated judges. They thereby diminished the amount of influence they could realistically exercise in using their voices to effect change in the ECCC's practice.

If Hirschman is right, that it is not simply a voice, but what kind of voice that matters in getting an organization to listen, then it is worth contemplating whether the situation would be any different had the UN member states or donors used voice and/or exit to effect organizational change. The entry of "loyalty" emerges as a game changer.

Loyalty: How Loyalty Activates Voice

According to Hirschman, loyalty plays a pivotal role in holding exit at bay and activating voice.24 The loyal member remains in an organization that is performing below standard out of an expectation that the organization will ultimately right itself, or that their presence would prevent further decline. Part of the loyalist's calculation is the belief that they wield enough influence to make themselves heard. Implicit in the tradeoff the loyalist makes between the certainty of exit and the uncertainty of using voice to effect change is self-interest: the loyalist has something at stake in remaining.25

In the face of controversy, disagreement, and disappointment at the ECCC, the UN has nonetheless chosen to remain part of the court, despite the existence of an exit clause. Article 28 of the Agreement foresaw the possibility that the UN would withdraw, should the court deviate from the legal terms and principles therein.26 Assuming that the UN is a self-interested actor, invested in the ECCC, the role that "loyalty" may play in eliciting organizational change proves insightful.

The Stakes

In 1999, a UN-appointed Group of Experts found that Cambodia's judiciary lacked a trained cadre of judges, lawyers and investigators, an adequate infrastructure, and a culture of respect for due process. Aware of these problems, the UN decided to support a Cambodian-led court out of concern that minimum international standards should be respected in these historic trials. When the UN entered into the Agreement with Cambodia, it made a commitment to developing respect for rule of law in the Cambodian judiciary, via the ECCC.27 In principle, the RGC shares this understanding with the UN,28 as expressed in the Preamble to the Agreement, and stated in a letter from Hun Sen to the UN secretary general on June 21, 1997, explicitly requesting assistance for holding a trial according to international standards.29

The Tradeoff

Where the UN and the RGC differ is in their execution of this common goal. The Agreement and the ECCC Law place the parties on an uneven footing, which makes fulfilling their responsibilities a function of what they are each capable of contributing. In many ways, the RGC has the home advantage. The ECCC is a domestic court that follows Cambodian legal procedure—although international legal standards as set out in the 1966 International Covenant on Civil and Political Rights are incorporated in the Agreement, and international procedural rules may provide guidance where there is ambiguity in Cambodian law.30 Cambodian judges comprise the majority in the Pre-trial, Trial, and Court Chambers. However, there is room for international legal personnel to maneuver. In the "supermajority voting requirement," any decision by these Chambers requires a majority plus one vote.31 The rule has often split the judges down national and international lines.32 Certainly, the Cambodian majority puts more pressure on the international judges to speak up when issues arise that threaten the integrity of international judicial standards. Yet even when the international judges do speak, there are limits to how much their voices can achieve as individuals, within the overall structure of the ECCC.33

In comparison, consider the effect of voice from a stronger messenger. In February 2002, Hans Correll, under-secretary general for legal affairs and legal counsel for the UN, threatened to conclude UN participation in ECCC negotiations when the Cambodian government pre-emptively adopted the ECCC Law (10 August 2001), prior to finalizing the Agreement. The UN expressed concern that the ECCC, as set out in the Law, would not reflect the independence, impartiality, and objectivity of a UN-supported court. In reaction to a potential UN exit, and in response to the urgent appeals of concerned stakeholders, Prime Minister Hun Sen conceded that the ECCC Law could be amended, in light of the UN's concerns.34 While the UN's voice does not guarantee that their Cambodian counterparts will listen, there is a greater likelihood that the ECCC will respond to the UN speaking with the force of its collective members, as opposed to the many voices at the individual level that have already exhausted themselves.

Untapped Advantage

Yet apart from general statements of concern when controversial issues arise, the UN has not exercised its voice with any authority. The UN's silence on what responsibility, if any, it may have for following up on ECCC irregularities, is disconcerting.35 The UN is there to set the bar for a reason. The UN's capability to shape the credibility of the ECCC through the international legitimacy it gives or withholds should not be underestimated.  This legitimacy is premised upon a state's respect for human rights norms and accountability for human rights atrocities. The need for states to attain international legitimacy through respect for human rights and rule of law is important to their standing in the international community.36 When these standards are not met and/or human rights are flouted, the UN is within its prerogative to demonstrate its dissatisfaction by withholding its approval, and consequently, the international credibility, that the party seeks. As UN-RGC negotiations indicated, the cachet that comes with international legitimacy is what Cambodia seeks from the UN's participation–actual or perceived.37 The catch is that this participation must be on the RGC's terms.38 To this end, the UN has great normative advantage that it can exercise vis-à-vis the ECCC. But the UN has not utilized this resource, or any other. Its relative complacency in response to the ECCC's problems speaks volumes about a real lack of ownership in these courts.

CONCLUSION

Although no model can adequately capture the sui generis nature of the ECCC, Hirschman's framework illustrates a useful way of understanding the ECCC's devolution, and the relationship between this decline and the stakeholders. Viewed through a Hirschman lens, implicit within the tradeoff the UN makes in deciding to stay at the ECCC is a reasoned calculation that there is something important at stake in remaining. More than a decade ago, the RGC and the UN mutually recognized the importance of having a trial for Cambodia, in Cambodia. The UN accepted its responsibilities, acknowledging the difficulties it would encounter in upholding a model of justice for the Cambodian public. It noted that though the trials would not change the human rights situation in Cambodia overnight, it was a crucial step in the right direction.39 Along the way, principles became sidelined by politics. Now the UN and stakeholders find themselves in a difficult position.

On the one hand, pulling out now, with nothing to show for its participation is a high price to pay for the UN's credibility as an institution that can provide a model of international justice. On the other hand, the longer the UN stays, the more its reputation is marred by that of the ECCC's to which it is bound. Of Hirschman's three variables, "loyalty" has the most potential to bring about change– it is the only variable that allows for the possibility for parties to reach a mutually beneficial outcome, if interests overlap. This common interest is Cambodia's legal legacy. Recognizing this is a matter of prioritization that sees the rule of law as a long-term investment. Failure to internalize these stakes will result in a lost opportunity to contribute to Cambodia's legal legacy. The impact will be felt the most by the Cambodian people, who expect and deserve some measure of justice for their past.

The UN has one more opportunity to renew its purpose. Cases 003 and 004 are sitting in the docket. They are beset with allegations of political interference and administrative stonewalling. Increasingly, voices clamor to denounce these cases as a lost cause, and the ECCC as a failure. Now is the opportune moment for the UN and donors to send an unequivocal message to the RGC that communicates the importance of proceeding with Cases 003/004, in a manner that conforms to the underlying principles of the Agreement. Lest the ECCC's bottom line define Cambodia's moral one, we owe it to them to speak now.



NOTES

1 Cheang Sokha, Stuart White, and Abby Sieff, "Ieng Sary Dies," Phnom Penh Post, March 15, 2013; all criminal and civil action against Ieng Sary are dismissed due to his death, pursuant to Article 7(1) of the Cambodian Code of Criminal Procedure, and Internal Rule 23bis (6) of the ECCC. Termination of the Proceedings against the Accused Ieng Sary, ECCC, March 14, 2013.

2 As of this writing, the international side of the tribunal loaned $2 million to the Cambodian side to pay the salaries of the Cambodian staff. Kong Sothanarith, "International side of tribunal loans funds to Cambodian side," Voice of America Khmer, April 5, 2013; Joe Freeman and Justine Drennan, "Strike redux looms for KR Tribunal,"Phnom Penh Post, April 5, 2013.

3 Kong Sothanarith, "Tribunal Staff Demand Explanation for Salary Problems," Voice of America Khmer, January 24, 2013; Kong Sothanarith, "Unpaid Cambodian Tribunal Staff Threaten to Walk," Voice of America Khmer, January 23, 2013; "Cambodia Khmer Rouge Tribunal Staff Going Unpaid," Huffington Post, January 18, 2013.

4 Article 1, Purpose, 6 June 2003, Agreement.

5 The ECCC has cost $173.3 million so far, and total projected budget estimates for 2013 have been cited at $35.4 million. $9.4m of this budget is allocated for the national side, though they have been battling a $7 million budget shortfall this year alone and all recent donations have only been to the international side of the court. Although as of this writing, money from the international side has been loaned to the national side to continue proceedings. "ECCC Financial Outlook," February 28, 2013; Joe Freeman, "Government, UN talk ECCC's funding woes," Phnom Penh Post, March 21, 2013; Abby Sieff, "Scope of Case 002 Unchanged," Phnom Penh Post, April 1, 2013.

6 See Political Interference at the Extraordinary Chambers in the Courts of Cambodia Open Society, July 2010; and, Alleged Suspects in Case 004 Exposed During Case 002 Questioning: Testimony of Accused Nuon Chea and Witness Prak Yut, Cambodia Tribunal Monitor, January 30, 2012.

7 Ieng Sary passed away in March 2013 at the age of 87 (born October 25, 1925), NuonChea is 86 (born July 7, 1926), and KhieuSamphan is 81 (born July 27, 1931).

8 These uncertain prospects were articulated by the recent Supreme Court Chamber decision annulling the Trial Chamber's severance of Case 002 into smaller segments that each focus on a narrow set of charges in the indictment (Case 002/01 focuses on forced population movement). Decision on the Co-Prosecutors' Immediate Appeal of the Trial Chamber's decision concerning the scope of Case 002/01, February 8, 2013.

9 See Article 12, para. 2, Agreement; Report of the Secretary-General on Khmer Rouge trials, A/57/769, March 31, 2003, the conditions for resumption of negotiations between the RGC and UN would have to inter alia, "ensure that the process was a credible one, that complies with established international standards regarding the independence and impartiality of the judiciary, the effectiveness, impartiality and fairness of prosecutors and the integrity of the judicial proceedings." (III.e.)

10 Hirschman, Albert O., Exit, Voice, and Loyalty: Response to Decline in Firms, Organizations, and States, Harvard University Press, Cambridge, Massachusetts, 1970.

11 The international co-prosecutor Andrew Cayley submitted "Introductory Submissions" for cases 003 and 004 on 7 September 2009 where he outlined the evidence against the five accused, but the investigating judges failed to notify the suspects, interview key witnesses, or conduct crime site investigations. On 29 April 2011, the bulk of the UN investigating staff quit in protest, on the ground that the investigation represented a failure of justice. Beth Van Schaak, "Big news from the ECCC," Cambodia Tribunal Monitor, October 11, 2011.

12 See Article 5, Article 12, Agreement.

13 The Royal Government of Cambodia's opposition into these cases is widely acknowledged as apparent from an October 2010 meeting of Cambodian government leaders and UN Secretary General Ban Ki-moon, where Foreign Minister Hor Namhong "clearly affirmed" that Prime Minister Hun Sen would not allow further cases beyond Case 002. See Human Rights Watch, "Cambodia: Judges Investigating Khmer Rouge Crimes Should Resign," October 3, 2011.

14 Human Rights Watch criticized the judges and called for the resignation of both Judge Blunk and his counterpart Judge Bunleng remarking that "This would be shocking for an ordinary crime, but it's unbelievable when it involves some of the 20th century's worst atrocities. The Cambodian people have no hope of seeing justice for mass murder as long as these judges are involved." See Human Rights Watch, "Cambodia: Judges Investigating Khmer Rouge Crimes Should Resign," October 3, 2011.

15 Open Society Justice Initiative, Press Release, "UN Must Reconsider Commitment to Khmer Rouge Court, March 21, 2012; Ou Virak, the president of the Cambodian Center for Human Rights (CCHR) articulated his disappointment, "We need to make sure that the UN is pushing for complete independence of the court, and therefore not just statements being made public, but (that) any sign of interference by the government should be unacceptable – and that to me is what was missing." October 21, 2011, International Justice Desk at Radio Netherlands Worldwide, "Cambodia: UN visit ends without decision."

16 See Note of the Reserve International Co-Investigating Judge to the Parties on the Egregious Dysfunctions within the ECCC Impeding the Proper Conduct of Investigations in Cases 003 and 004, March 21, 2012, available at: http://www.eccc.gov.kh/en/document/court/note-international-reserve-co-investigating-judge-parties-egregious-dysfunctions-wi-0; pp 9-11, Open Society Justice Initiative Report on "The Future of Cases 003/004 at the Extraordinary Chambers in the Courts of Cambodia," October 2012.

17 Open Society Justice Initiative noted that between May 17, 2011 and late January 2012, Judge Kasper-Ansermet tweeted a substantial amount of times in relation to his position towards the court's problems and credibility issues, including his criticism of events unfolding in Cases 003/004 from May 2011 onwards, as well as links to the views of the national judge and national co-prosecutor. See p.22, OSJI, February 2012 Update Report.

18 See "How the Khmer Rouge tribunal was agreed: discussions between the Cambodian government and the UN," by Ambassador Thomas Hammarberg, Documentation Center of Cambodia, "All leading lawyers I had talked with were in agreement that Cambodia by itself could not handle a Khmer Rouge tribunal relating to genocide and other crimes against humanity."

19 Nuon Chea Defence Team, Letter to the OCIJ Concerning Defense's Lack of Confidence in the Judicial Investigation (Oct. 15, 1999).

20 Nuon Chea Defence Team Application for Immediate Action Pursuant to Rule 35, April 25 2012.

21 Public Redacted Version of Nuon Chea Defence Team Immediate Appeal Against Trial Chamber Decision on Application for Immediate Action Pursuant to Rule 35, December 24 2012.

22 For example, the NCDT raised the issue of senior sitting Cambodian officials who refused to comply with court summonses which goes to the defense's right to cross-examine pivotal witnesses who may speak to the charges against their client. See infra fn 23.

23 p. 71, Hirschman.

24 pp 77-78, Hirschman.

25 p. 98, Hirschman.

26 Agreement, Article 28, Withdrawal of Cooperation, "Should the Royal Government of Cambodia change the structure or organization of the Extraordinary Chambers or otherwise cause them to function in a manner that does not conform with the terms of the present Agreement, the United Nations reserves the right to cease to provide assistance, financial or otherwise, pursuant to the present Agreement."

27 See Report of the Group of Experts for Cambodia established pursuant to GA resolution 52/135, February 18, 1999.

28 Prime Minister Hun Sen articulated in a report on "The Rule of Law in Cambodia," that, "Following the upheaval of the seventies and eighties, Cambodia has been adopting liberal norms and practices of which the Rule of Law is one of the cornerstones." Prime Minister Hun Sen defines "Rule of Law" "as a set of practices and institutions that bring order to our society for the better good of all citizens. It is the application of rules and traditions that discipline the exercise of rights and obligations and the exercise of power." p. 9, "Rule of Law," Konrad-Adenauer-Stiftung, Vol. 05, Democratic Development Paper, January 2009.

29 "Cambodia does not have the resources or expertise to conduct this very important procedure. Thus, we believe it is necessary to ask for the assistance of the United Nations. We are aware of similar efforts to respond to the genocide and crimes against humanity in Rwanda and the former Yugoslavia, and ask that similar assistance be given to Cambodia. We believe that crimes of this magnitude are of concern to all persons in the world, as they greatly diminish respect for the most basic human right, the right to life. We hope that the United Nations and international community can assist the Cambodian people in establishing the truth about this period and bringing those responsible to justice. Only in this way can this tragedy be brought to a full and final conclusion." Report of the Group of Experts for Cambodia established pursuant to General Assembly resolution 52/135, February 18, 1999.

30 Article 12, Agreement.

31 Negotiations indicate that the goal of this supermajority structure was to ensure that no vote could be taken solely by the Cambodian judges or solely by the international judges.

32 See ECCC Pre-Trial Chamber, Second Decision on Nuon Chea's and Ieng Sary's Appeal against OCIJ Order on Requests to Summons Witnesses, Case No. 002/19-09-2007-ECCC/OCIJ (Pre-Trial Chamber 50),  September 9, 2010, particularly p. 20, where the international judges issued a dissent regarding concerns about RGC interference in Case 002; Public redacted version  of "ECCC Pre-Trial Chamber, Considerations of the Pre-Trial Chamber Regarding the Disagreement between the Co-Prosecutors Pursuant to Internal Rule 71, Disagreement No. 001/18-11-2008-ECCC/PTRIAL CHAMBER, 18 August 2009, p. 5.

33 Judge Kasper-Ansermet in a public comment in response to the efforts of his national counterpart and the RGC to block his confirmation at the courts noted, "Faced with the hostility of Cambodian judges, the silence of my international colleagues and a complacent administration, I find myself puzzled." See Julia Wallace, "From Phnom Penh With Love," International Justice Tribune, March 28, 2012.

34 See abridgement of "The Extraordinary Chambers in the Courts of Cambodia" by David Scheffer, in Cherif Bassiouni, ed., International Criminal Law, Martinus Nijhoff Publishers, 3rd ed., 2008, p. 9. Between February 8, 2002 when the UN pulled out of negotiations, and November 20, 2002, when the UN Third Committee adopted draft resolution A/C.3/57/L.70 which outlined new plans on ECCC trials and called for resumption of negotiations between the UN and the RGC, the urgent voices of donor states and stakeholders appealed to the UN and the RGC to move beyond stalemate and establish the ECCC. The active lobbying of the Group of Interested States (Japan, France, UK, Canada, Australia, US, EU, South Korea, Japan, Philippines, Singapore, Thailand, Indonesia and Cambodia) and the numerous meetings they held to overcome stalemates in establishing the ECCC was pivotal. See Cambodia Tribunal Monitor, "Composite Chronology of the Evolution and Operation of the ECCC Center for International Human Rights, Northwestern University School of Law, pp 17-20.

35 A spokesman for Secretary-General Ban Ki Moon, in response to the controversy over Judge Blunk's exit emphasized that, the ECCC must be free from "external interference," but did not address what responsibility, if any, the UN may have for investigating the co-investigating judges' actions. UN Press Release, "United Nations Rejects 'Media Speculation' That Judges Received Instructions to Dismiss Case before Extraordinary Chambers in the Courts of Cambodia," June 14, 2011. The strongest statement the UN has issued in regards to controversy at the court was January 20, 2012, when the UN said the Cambodian government was in "breach" of the Agreement, voiced its support for Judge Kasper-Ansermet, and asked the RGC to take immediate steps to ensure his appointment at p. 25, Open Society Justice Institute, February 2012 Update Report.

36 In 2012, Cambodia chaired ASEAN and attempted to secure a seat as a nonpermanent member of the Security Council. It ultimately lost the bid to South Korea, but not without sparking debate on the legitimacy of Cambodia's candidacy, given its human rights record. Its bid to run illustrated however the extent of Cambodia's ambitions and the incentive it has to at least maintain the image of adhering to international human rights standards in order to elevate its position in global affairs. See Glenys Kinnock, "Cambodia's Brazen UN Bid," The New York Times, October 16, 2012.

37 See "How the Khmer Rouge tribunal was agreed: discussions between the Cambodian government and the UN," by Ambassador Thomas Hammarberg, Documentation Center of Cambodia, "The emerging idea of a mixed tribunal appeared to reflect an attempt to combine, on the one hand, the position that the trial must be held in Cambodia itself and seen to be Cambodian and, on the other hand, the introduction of the necessary guarantees that international standards would indeed be applied and upheld."

38 On 17 August 1999, Hun Sen categorically rejected the UN's proposal for creating a "Special Tribunal" in Cambodia under the authority of UN Security Council Chapter VII. Hun Sen called it a question of "whether Cambodia should be cooperating with the UN or the UN should be cooperating with Cambodia."

39 Para. 100, UN Group of Experts Report, 1999.

Read More: Ethics, Human Rights, Justice, Ethics, Global Governance, Human Rights, Postwar Reconciliation, United Nations, Asia, Southeast Asia, Cambodia

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