The Open Society Justice Initiative, a New York-based court monitoring group, has criticized judges at the Khmer Rouge tribunal for their brusque treatment of a defense motion to disqualify a pre-trial chamber judge from Nuon Chea’s detention appeal hearing.
On Jan 29, Nuon Chea’s defense team argued that Judge Ney Thol’s alleged political affiliations and judicial record called into question his impartiality.
On Feb 4, the tribunal’s Pre-Trial Chamber judges unanimously dismissed that motion, despite the fact that the prosecution had asked for more time to consider the issue and the defense had requested public input.
In dismissing the motion to disqualify Ney Thol, the Pre-Trial Chamber judges emphasized that all judges are presumed impartial until proven otherwise.
OSJI said in a report released Tuesday that this presumption of impartiality, while grounded in international law, holds relatively little weight in Cambodia, where, they argue, the judiciary lacks independence.
“The assumption underlying this presumption—that judges are appointed and operate in a context that assures judicial independence—is unfortunately open to perennial doubt in Cambodia, where as already noted there is a well established and widely acknowledged history of a lack of independence within the judiciary,” OSJI wrote.
Ney Thol defended his impartiality and said by telephone on Monday that he harbored no bias about Nuon Chea. “Nuon Chea is not my family,” he said, before hanging up the phone.
Prak Kimsan, president of the tribunal’s Pre-Trial Chamber, declined to comment on Monday and Tuesday, saying that the judges had made their decision public.
It was the first time the question of judicial independence arose at the ECCC, but it’s unlikely to be the last, said the tribunal’s principal defender, Rupert Skilbeck.
“The first attempt made by the defense to recuse a judge was not successful, but these issues are still very important ones by which the ECCC will be judged as to whether or not the process is fair. It is highly likely that this issue will be raised again before the court,” Skilbeck said.
The tribunal’s UN Public Affairs Officer, Peter Foster, said Tuesday that just as defendants must be presumed innocent until proven guilty, so too ECCC judges must be presumed impartial until proven otherwise.
All the judges at the court, he said, “represent a selection of the best qualified and experienced people that were out there.”
OSJI argues in its report that one safeguard against partiality is transparency.
Documents relevant to the Ney Thol decision—in particular the defense motion to disqualify him, which the defense classified as public, but was somehow never released by the court—should have been made public; people should have been given more time to weigh in on the matter; and there should have been a public hearing, OSJI wrote.
Foster emphasized that the public trial phase of the court has not yet begun.
“Every effort we make to publicize everything is 100 percent better than what civil law procedures entail. Once you start releasing a little bit, people want more. That’s perfectly natural,” he said.
Sara Colm, senior researcher on Cambodia for New York-based Human Rights Watch, said that if the court had disqualified Ney Thol, it would have been faced with the decision whether to disqualify other judges.
Two or three other judges, she said, “certainly have weaknesses, participating in political trials and, in some cases, a lack of experience.”
She added that, in fairness, it was far too early to judge the judges at the ECCC.
