Who is the "reserve international co-investigating judge" of June 2003 Agreement?

As seen and heard on Ms. Theary C. Seng's BLOG

The 3 Main Questions of Radio Free Asia:

1. My thoughts on yesterday's press conference of UN envoy David Scheffer in defending Reserve International Co-Investigating Judge Laurent Kasper-Ansermet.

TS: A very strong start toward the path of withdrawal.  It will be very difficult for this government to pull a fast one on David Scheffer who is not only deeply experienced in international law, as the first US War Crimes Ambassador when international criminal justice was exploding onto the international scene in the 1990s, but also he was instrumental in the negotiation process for the establishment of the ECCC and has been deeply involved directly and engaging this government since.  Any other person, who is smart but new to the scene would not have had the historical knowledge needed to call the government's bluff.

Article 28, ECCC Agreement June 2003

2.  My reading of the June 2003 Agreement establishing the ECCC (Khmer / English).

Article 5 (6), ECCC Agreement, June 2003

TS: The Agreement is unequivocally clear, leaving no room for questions, on this matter.  Let me read to you Article 5(6):  "In case 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."

Now, we must ask Who is the "reserve international co-investigating judge" during this period of a "vacancy"? It is Laurent Kasper-Ansermet.  The Cambodian government recognizes him as such; this is not a point of contention.

Laurent Kasper-Ansermet

= 

"reserve international co-investigating judge"

So, let us read this Art. 5(6) again, but now inserting "Laurent Kasper-Ansermet" in the place of "reserve international co-investigating judge": "In case 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 Laurent Kasper-Ansermet."

The language of Art. 5(5) referring to the Supreme Council of Magistracy is a moot point in light of Art. 5(6) and in light of former reserve co-investigating judge Siegfriend Blunk's appointment process, which did not need a re-appointment of him from being a "reserve international co-investigating judge" to that of "international co-investigating judge".

In order to make sense of all the articles and the spirit of the Agreement, David Scheffer is correct in harmonizing the SCM's role as  only a "sign of cooperation".

RFA: The government argues that Article 3(6) states clearly that the Supreme Council of Magistracy has the duty to appoint.  "In the event of a vacancy of an international judge, the SCM shall appoint another international judge from the same list." Do you not see a conflict?

Article 3(6), ECCC Agreement, June 2003

TS: No, the  point 6 you just read from Article 3 is about "Judges" in the Trial and Supreme Court Chambers, whereas Article 5 is narrowly about the "Investigating Judges". See also my earlier point relating to Art. 5(5), that of SCM's role as only a "sign of cooperation".

Moreover, when in interpreting law, we must take into account the "letter (wording) of the law" and the "spirit of the law" as they relate to the other articles and intention of the Agreement.  Here, both the letter and the spirit of the Agreement clearly favor the interpretation put forth by the UN.

3.  My Press Release urging the UN to Withdraw, especially why is the time and political climate ripe?

TS:  See "Time is Prime for UN to Withdraw from KRT"