Defense Fumbles; Pre-Trial Chamber Stumbles, Drops the Ball But Miraculously Gets It Right In the End

Motion for and Decision on Judge Ney Thol’s Disqualification: Analysis

Defense Fumbles; Pre-Trial Chamber Stumbles, Drops the Ball But Miraculously Gets It Right In the End

by Stan Starygin

Boiled down to the essentials the intentions of the parties to this dispute were as follows: the defense wanted to have Ney Thol removed from the PTC panel which was about to hear Noun Chea’s appeal of pre-trial detention and, ultimately, have him removed from the tribunal altogether; the PTC wanted to save Ney Thol as one of their own and avoid any repercussions which such a removal might result in politically; the prosecution – perhaps for reasons of opposing everything the defense argues or, perhaps, because of seeing that Ney Thol’s prior record shows that he would break any tie, if there is one, in favor of the prosecution – wanted to save Ney Thol too. Ney Thol, himself, wanted to save Ney Thol, too, which he made abundantly and “categorically” clear in his response to the defense’s motion.

The defense attacked Judge Ney on the grounds created by Rule 34.2 of the Internal Rules of the ECCC which reads as follows:

“Any party may file an application for disqualification of a judge in any case in which the Judge has a personal or financial interest or concerning which the Judge has, or has had, any association which objectively might affect his or her impartiality, or objectively gives rise to the appearance of bias”.

This rule creates four instances in which an ECCC judge can be disqualified: (1) cases in which he/she has a personal; or (2) cases in which he/she has a financial interest; (3) or has any association which objectively might affect the judge’s impartiality; or (4) objectively gives rise to the appearance of bias). I embedded ‘ors’ into the text of the rule to demonstrate that this is not a four-prong test in which all four prongs must be satisfied, but instead a compilation of independent tests enshrined in one rule. This being the case, for the defense to make a compelling argument for Ney Thol’s removal the satisfaction of one of the four tests would have sufficed. Since it was untenable that any proof could be found to satisfy (1) or (2) – as it is hard to imagine, leave alone prove, that Ney Thol might have any personal or financial interest in the outcome of Noun Chea’s or any other defendant’s cases (save for Duch’s for which Ney Thol recused himself) – for which reason the defense refrain from pursuing any arguments based on these two (PTC refers to (1) and (2), cumulatively, as ‘the Subjective Test’). The defense, therefore, correctly, chose to battle over the last two tests of Rule 34.2, (3) and (4), i.e. ‘the association test’ and ‘the bias test’. To satisfy these two tests the defense argued the following which the defense framed as ‘the crux of the application’:

The crux of the application is twofold: (i) Judge Ney’s position as an officer in the RCAF amounts to an “association which objectively might affect his […] impartiality” and (ii) his demonstrated willingness to inappropriately employ his judicial power at the behest of the CPP “objectively give[s] rise to the appearance of bias”. In other words, Judge Ney’s position as a serving military officer and his participation in highly questionable judicial decisions “would lead a reasonable observer, properly informed, to reasonably apprehend bias” against Mr. Noun and the Khmer Rouge and in favor of the CPP.






The Chamber began responding to this by applying the somewhat controversial Furundzia test of judicial impartiality predicated on the ICTY’s Appeal Chamber’s imposition of a high threshold of burden of proof in cases where motion for disqualification of judges are filed. The Chamber’s assertion of the broad and unquestioned application of the Furundzia test internationally is not particularly accurate as there is a large number of jurisdictions which allow peremptory disqualification of judges (also known as ‘peremptory papering’). Although the defense might have counted on the application of the latter, it should have tried to overcome Furundzia, the effort that does not get across loud and clear from the pages of the defense’s motion.

The Chamber then cited the provision of the Agreement which outlines the judicial qualifications for ECCC judges. This is not a flawless argument on the part of the Chamber, as the lawyers in question were not in a position to challenge judicial candidates, either on the Cambodian side or the UN side, throughout the entire process of thrashing out the Cambodian and international lists. These lists, in fact, were kept secret until after the candidates were approved by the UN and the Supreme Council of Magistracy. Even to date, when the defense requested resumes of the currently sitting ECCC judges, this request was denied for which no clear and convincing justification was provided. In this case, however, Furundzia stands as the defense failed to provide a better reference to an authority that would have a chance of overpowering Furundzia.

The Chamber further parsed “the crux of [defense’s] application” and addressed tests (3) and (4) separately. In response to the defense’s claim of ‘association’, the Chamber pointed out Ney Thol did not act in his military officer capacity when executing his duties of an ECCC judge. This statement of the PTC does not merit further analysis as it demonstrates the PTC’s international component’s – who sources identify as responsible for the crafting of PTC’s decisions – lack of understanding of Cambodian political culture at its most fundamental level. I am convinced there is a provision of the law – or rather lack of thereof – which creates no requirement for judicial candidates to be familiar with the Cambodian political and legal culture, which I am sure the judges will be able to demonstrate if called upon. The weakness of this argument would have till undermined the quality of the decision had it not been the only argument the PTC hinged its rebuttal of the defense’s argument upon, but, alas, it was which, in a manner of speaking, was a tiny dart that killed the elephant. ‘The elephant’, however, was greatly undermined by the fact that the defense did not attempt to bring the argument of political culture into the mix.

In its test (4) rebuttal, the Chamber, in summary, wants us to believe that (a) the three clearly political – and defined as such by most state and reporting agencies in the world (to this end the Chamber could have consulted the USDI HR, HRW, AI reports for the relevant years which if it did, it chose not to mention in this decision) -- cases adjudicated by Ney Thol were merely “allegedly political”. The use of the term ‘alleged’ only makes sense if the allegation has any chance of adjudication in a foreseeable future and by a court of law. It is untenable to believe that such adjudication is a substantive or political possibility which renders the use of said term in this context redundant; (b) that by taking ECCC’s oath Judge Ney disabused himself of all his prior prejudices and preconceptions which include political beliefs and alliances.

Towards the very end of the decision, however, the Chamber delivered a tough blow which shattered the entire rickety structure of the defense – mounted for both tests (3) and (4) – by pointing out that Rule 34 (2) does not include the overall professional record of a particular judge but his/her relation to the case (s) in question which renders any arguments predicated on Ney Thol’s prior judicial record moot. Rule 34 (2) might not be the best crafted or most conducive to a fair trial but it is the law. The defense should have read it more closely. What a blow. The PTC steals the game after a succession of fumbles!