Pretrial judges at the Khmer Rouge tribunal on Friday unanimously dismissed a defense motion seeking to disqualify Co-Investigating Judge You Bunleng, whom defense lawyers accused of acting on government instructions.
Lawyers for Brother Number Two Nuon Chea, who is facing indictment this week three years after his arrest in Pailin province, accused Judge Bunleng in June of political bias after he backed out of investigations opposed by the government.
Judge Bunleng in June signed written instructions to investigators but crossed out his signature after this was reported in the press.
Without informing UN officials, the Cambodian side of the tribunal’s public affairs office also scrambled to dissociate Judge Bunleng from the investigations, which Prime Minister Hun Sen has repeatedly said could ignite civil war.
In a ruling on Friday, the court’s Pre-Trial Chamber, the appellate body overseeing the work of the co-investigating judges, said the defense’s allegations were essentially circumstantial and did not necessarily demonstrate an appearance of bias.
“The applicant merely assumes, without support, that Judge You decided ‘immediately after’ the spokesman’s comments were made or reported,” the judges wrote.
“Even if Judge You decided to cross out his signature after the spokesman’s comments were made or reported, that single fact alone does not establish the appearance that Judge You has acted without independence or impartiality.”
“The Pre-Trial Chamber also reminds the applicant that it was within the discretion of Judge You to cross out his signature on a document before it is filed.”
The decision also disclosed excerpts from a response to the allegations by Judge You Bunleng, who said that his hesitation—first signing, then “unsigning” the documents—indicated that he was not acting on official instructions.
“[I]f I had to follow the government’s instructions, I would be able to take a clear position and would have no hesitation in conducting the investigation,” Judge Bunleng wrote on June 30.
“The defense also fails to adduce that I receive instructions from the executive on how to conduct investigations at the ECCC and did not prove what are my interests in following the instructions of the executive. Such vague arguments cannot serve as grounds for disqualifying a judge.”