The question of a Khmer Rouge tribunal officer’s potential bias against war crimes suspect Ieng Sary rose Friday to the court’s Pre-Trial Chamber, where defense lawyers have sought a ruling for information about him.
The court’s Office of the Co-Investigating Judges on May 26 declined to provide the defense with a full accounting of remarks by an investigator, David Boyle, who the defense says has publicly stated that its client, Ieng Sary, can be tried despite a 1996 royal pardon.
In motion papers obtained Tuesday, lawyers Ang Udom and Michael Karnavas said they were asking the Pre-Trial Chamber to compel the co-investigating judges to provide information about Boyle, including a description of his role in drafting the November order to detain Ieng Sary in which similar arguments about the pardon appear.
“Simply put, prima facie evidence seems to reveal that Mr Boyle is unqualified to hold any position within the [Office of the Co-Investigating Judges],” Ang Udom and Karnavas wrote, adding that if it exists, such a bias against their client “will infect every future decision” by the office.
International Co-Investigating Judge Marcel Lemonde declined to comment on the motion Tuesday, however in their May 26 letter, he and Co-Investigating Judge You Bunleng wrote that there was no apparent legal basis for repeated demands for information about Boyle.
Court rules “do not provide for a party to request the disqualification of an investigator,” the judges said, adding that judges were not required to provide evidence for their own disqualification.
However, in their motion filed Friday, the defense argued the letter appeared “to prematurely reject any possible future Defense attempt to disqualify Mr Boyle” or anyone else who is not a co-investigating judge.
In 2006, the first Pre-Trial Chamber at the International Criminal Court at The Hague temporarily separated a legal adviser from the case of the ICC’s first detainee, war crimes suspect Thomas Lubanga Dyilo.
The chamber ultimately ruled it did not have jurisdiction to decide on separating the adviser, Gilbert Bitti. However, in their motion Friday, the Ieng Sary team said the ICC had shown that legal advisers like Boyle are subject to the same rules as judges in matters of disqualification.