Khmer Rouge tribunal judges on Monday unanimously dismissed a motion to disqualify Military Court President Ney Thol from proceedings at the Extraordinary Chambers in the Courts of Cambodia.
Defense attorneys for Nuon Chea argued last week that Ney Thol, who sits on the tribunal’s Pre-Trial Chamber, should be dismissed because his prior judicial record, as well as his political and military affiliations, called into question his judicial independence.
Pre-Trial Chamber judges-excluding Ney Thol-said the defense’s request was both technically and substantively flawed.
“[T]he quality of the evidence submitted does not reach the standard to allow the conclusion that Judge Ney Thol acted upon the instruction of any political organization or that he was politically motivated,” the judges wrote in their Monday decision.
Their ruling is not open to appeal.
Ney Thol greeted the news with a chuckle when contacted by telephone late Monday, but declined to comment on the decision.
Nuon Chea’s attorney Victor Koppe said the substance and speed of the ruling disappointed him.
“What I find puzzling is the speediness of the decision. We requested amicus curiae briefs and any input from civil parties. That was denied,” Koppe said, adding that he would address the substance of the decision in detail in court.
“I invite all interested parties to comment on the decision,” he added.
ECCC Co-Prosecutor Robert Petit said he had not had adequate time to review the decision and was disinclined to comment on judicial matters.
In their decision, the judges said that the defense application to disqualify Ney Thol was technically deficient because it was signed only on behalf of Nuon Chea’s Dutch attorney Michiel Pestman, and by Koppe, who has not been sworn in as a member of the Cambodian bar.
Nuon Chea’s Cambodian attorney Son Arun declined to comment Monday on why he had not signed the document. “That’s a tough question,” he said.
In their decision, the Pre-Trial Chamber emphasized that judges must be presumed impartial until proven otherwise. The mere fact of membership in a political party, they wrote, does not necessarily mean a judge will be politically biased.
Judges added that Ney Thol resigned from his position in the Central Committee of the ruling CPP in July 2006, soon after he was sworn in at the ECCC.
The CPP’s official web site listed Ney Thol as a Central Committee member as late as Jan 28, 2008, according to the defense, and a cached page of the site accessed through Google shows Ney Thol on the list as of Dec 22, 2007.
However, that Google reference, in English, had been removed by Jan 30.
CPP lawmaker Cheam Yeap said last week that the Web site’s Webmaster had mistakenly failed to remove Ney Thol’s name after he resigned in 2006.
The judges also dismissed the defense argument that as an RCAF officer, Ney Thol was compromised because he belongs to an army that battled the Khmer Rouge for years and takes orders from the executive, namely Prime Minister Hun Sen.
Judges said Ney Thol works at the ECCC not as a military officer, but as an individual. His appointment, they added, had been made in accordance with the law.
Most cuttingly, the Pre-Trial Chamber said the defense had relied too heavily on third-party commentary and general indictments of the Cambodian judiciary, and failed to provide solid evidence that Ney Thol ever acted at the behest of the CPP.
Hisham Mousar, who has been monitoring the ECCC for local rights group Adhoc, said the judges had made a “good decision.” The defense, he said, had been too abstract. “They need to be more concrete,” he said.
Youk Chhang, director of the Documentation Center of Cambodia, said Ney Thol’s judicial and political background had already been subject to prolonged public vetting.
“Why discuss it again?” he asked. “All government judges belong to the party in one way or another.”
Youk Chhang said he was content to wait—and watch. “Everyone is biased politically personally, but you have to see the action,” he said
