Claim of Bias Made Against ECCC Judge

In a statement sworn yesterday before police in Australia, a former Khmer Rouge tribunal in­vestigator accused Co-Invest­igating Judge Marcel Lemonde of instructing his subordinates to favor collecting evidence showing the guilt of the suspects currently under investigation by the court, rather than evidence tending to exonerate them.

Michael Karnavas, an Amer­ican attorney representing former Khmer Rouge Foreign Min­ister Ieng Sary, who is charged with war crimes and crimes against humanity, said yesterday that on the basis of the statement he intended to seek Judge Le­monde’s disqualification for al­leged bias.

Coming from Wayne Bastin, the former head of Judge Lemonde’s intelligence and analysis team, the statement immediately created fodder for the Ieng Sary defense to seek to discredit an investigation, which it has repeatedly criticized as unfair.

Unlike prosecutors, investigating judges are required to act impartially in actively seeking out evidence that may either support or weaken pros­ecutors’ allegations. Parties, such as the defense, cannot themselves undertake any investigation and are dependent on investigating judges to serve the interests of all sides.

Lars Olsen, legal communications officer at the tribunal, said yesterday that Judge Lemonde had referred questions on the matter back to the public affairs section.

“We are not aware of any statement made by Wayne Bastin and can therefore not comment on the substance in your questions,” Mr Olsen wrote in an e-mail, adding that Mr Bastin had stepped down in September after a year in his position.

“He did not renew his contract,” said Mr Olsen.

Mr Bastin said in his statement, notarized yesterday morning by police in the Sydney suburb of Burwood, that the defense had convinced him he was morally obliged to come forward.

“It has been explained to me by the defense that withholding such information, in itself, amounts to contributing to a perversion of justice. I am therefore morally and ethically bound to divulge that information,” Mr Bastin said.

Mr Bastin said in the statement that he and other officials of the tribunal’s office of the co-investigating judges had been called in early August to Judge Lemonde’s private residence in Phnom Penh.

“It was during this meeting that Judge Lemonde made a statement to us all, stating ‘I would prefer that we find more inculpatory evidence than exculpatory evidence.’

“After Judge Lemonde made this statement, the chief of the legal unit, [Ignacio] Tredici, leaned back in his chair, put his ar in the air and said words similar to, ‘I can’t believe you said that and I will pretend I never heard it.’

“I myself was totally amazed and shocked that such a comment would be made by the judge,” said Mr Bastin, adding that he had made bullet-point notes of the meeting.

Mr Bastin said he had informed fellow investigator Abraham Haddad, who responded, “You have got to be joking.”

“I must state that I have always had a good working relationship with Judge Lemonde and other staff members within the [office of the co-investigating judges]. This statement is not made with any malicious intent nor intended to tarnish the reputation of any of the OCIJ staff members who work diligently in an attempt to bring those to account for the crimes committed in Cambodia,” Mr Bastin said.

According to Mr Bastin, fellow OCIJ staff members Stephen Heder and Bernard Brun were also present at the meeting.

Mr Brun said yesterday he could neither confirm nor deny Mr Bastin’s account.

“I think I will not answer yes or no,” he said by telephone. “In my position as an investigator, what I am getting I will give it to the judge, whether it is exculpatory or inculpatory.”

“Afterwards, it is not my business,” he added. “My role is to find out whatever I can find out.”

A person answering Mr Haddad’s extension at the court said Mr Haddad no longer worked at the tribunal. In an e-mail, Mr Heder declined to comment. Mr Tredici could not be reached.

The tribunal’s procedural rules allow motions to disqualify judges in cases in which the judge “has, or has had, any association which objectively might affect his or her impartiality or objectively give rise to the appearance of bias.”

In an e-mail yesterday, Mr Karnavas said he intended to use Mr Bastin’s statement to seek Judge Lemonde’s disqualification.

“We are also asking that a public hearing be held and that all those present, including Judge Lemonde, be summoned to give evidence under oath,” he said. “This is the only way that justice can be seen to be done.”

 

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