Defense On the Offensive: Red Herring Arguments?

by Stan Starygin

Ieng Sary's defense is rumored to have filed a motion with the Office of Co-Investigating Judges (OCIJ) which questions the impartiality of some judicial officers employed by the OCIJ. Partiality arguments advanced by the defense are, reportedly, based upon the statements these judicial officers had made prior to their OCIJ employment and merely based on their prior employment in certain high-profile rights organizations.

Is the law on the defense's side here? Well, yes and no. Rule 55 of the Internal Rules does stipulate that the CIJs must "conduct their investigation impartially whether the evidence is inculpatory or exculpatory". Investigations, however, are conducted primarily on the basis of Introductory Submissions submitted by the Co-Prosecutors (CPs) which means that the measure of exculpatory evidence that the defense is looking for will be as large as the CPs make it and will, at least for the most part, depend on the integrity of CPs to include evidence against their own case. This gets even more complicated as the CPs are not under any mandate of the law to seek out exculpatory evidence but merely include the exculpatory evidence which they happen to come across in their search for inculpatory evidence. CIJs and their officers and investigators will have the job of testing out the assertions of the prosecution once they receive them in the form of Introductory or Supplementary Submissions. This shows that there is only a certain extent to which the CIJs can deviate from the course set by the CPs. CPs also have the right to appeal if they disagree with the alteration or dismissal of the original charges by the CIJs. The defense does not have such power under the law.

If some were to argue, therefore, that Rule 55's intent was to create the environment of equality of arms between the prosecution and the defense and vis-a-vis the CIJs, this argument would be hard to sustain and most likely rendered as untenable as there is no clear and conclusive presumption of the law that the CIJs must serve the interests of the prosecution and the defense in equal measure.

The question of 'impartiality' and 'bias' was addressed by the Pre-Trial Chamber (PTC) in response to the defense's motion to disqualify Judge Ney Thol on the grounds of partiality and bias and based on the prior judicial record. The Chamber dismissed the motion citing a high standard of the ICTY's Appeal Chamber. Why does the defense believe things can be different with OCIJ judicial officers and investigators? Is it because of the ICTY's focus was on 'judges' rather than 'judicial officers'? Most important, where is the defense going with this argument? The defense's clients must be hopeful that this is a red herring argument the defense is using to buy time to conduct its own investigations into the matters raised by the prosecution and create exculpatory evidence of their own, be it forensic or otherwise, rather than spending the ECCC donors' dollars raising arguments that will hardly help their clients, even if, by some miracle, successful.