The "Offending Content" and Its Background

In their reply to the Co-Investigating Judges (CIJs)’ decision forbidding the distribution of some of the material of the defense's private website the defense lawyers for Ieng Sary indicated that pursuant to this decision they had removed three of their own motions from said website. It can be inferred from this statement that these motions are the manner in which the defense interpreted the CIJs’ “offending content” in their decision on the matter.
It is incidental to this inquiry that two out of three documents which fall into the category of the defense’s interpretation of “offending content” are defense motions which request additional information about two employees of the Office of Co-Investigating Judges (OCIJ), Stephen Heder and David Boyle.

It is important to understand why the defense spends the court’s time requesting such information. In the first of the series of such requests the Ieng Sary defense team pointed out that it was seeking information pertinent to any manifestation of opinion about the ECCC in general and their client in particular which may have been harbored by these officers at the time of their hiring by the ECCC. The defense further explicated that the statutory nature of the OCIJs is so that it brooks no tolerance for expressed bias of any kind. The defense therefore asserted that the determination of whether the officers in question pass the test of non-bias could only be made of the OCIJ disclosed information about their scholarly and otherwise publications.

Since these two officers came from very different backgrounds, it will perhaps be best to examine the appearance of bias they might have separately.

Dr. Stephen Heder is a Cambodia expert in long standing who has undertaken research on this country since 1973 as a journalist and later as a political scientist and a historian. Being one of the most notable political scientists on Cambodia, he has produced a wealth of commentary on the last forty years of Cambodian history with a heavy emphasis on the Democratic Kampuchea (Khmer Rouge) period. As the two articles which appear below on this page evince he has made a number of statements and participated in a number of activities which may not be interpreted as unbiased. However, should such biases have become the basis of disqualification (I am aware that the defense stressed that it merely requested information and has not moved to disqualify Heder yet; however, a potential motion for disqualification is the reason such information is sought in the first place) of Heder as an officer of the OCIJs, the CIJs would have had to compromise the quality of expertise brought to the OCIJ by Heder and settle for an expert of far less stature and knowledge of the facts of the DK regime. Therefore, in my opinion, this situation merits a balancing test between Heder’s bias in favor of the prosecution and the expertise he brings to the OCIJ.

Dr. David Boyle (it is not clear whether the defense’s reference to Boyle as “Mr.” is an oversight or an intent not to recognize his French doctorate in International Law) came to the ECCC with a set of skills far less irreplaceable than those of Heder. However, Boyle came to this tribunal with far fewer publications of controversial nature and none of Heder’s activism in bringing DK leaders and those most responsible to trial. The defense has accused Boyle of leaving it out of the proposed negotiations of the meaning of the ECCC Law (See “David Boyle on “Getting Together” below) which the defense argues shows bias. Ironically, one of the previous positions occupied by Boyle in institutions of international justice was that of a legal translator and legal assistant for the defense before the International Criminal Tribunal for Rwanda (ICTR). Considering the latter, a concern voiced by the Office of Co-Prosecutors (OCP) perhaps would have been more warranted than that of the defense.

Ultimately and in Heder and Boyle’s defense, it might be a formidable task to find a qualified expert on international criminal law, Cambodian criminal law, and the facts which surround the DK period, if the CIJs entertain the defense’s argument and agree to reserve employment with the OCIJs solely for those who have not made public pronouncements about the ECCC structure, the ECCC negotiating process, political and procedural issues associated with the creation of the ECCC, and the DK history, or otherwise have shown bias of one kind or another. It is already unfortunate that the Court has hired a number of experts with little or no knowledge of Cambodia or the DK period and questionable knowledge of Cambodian and international criminal law. The overall ECCC process will doubtless not benefit from the continuous hiring of such “experts” merely on the grounds of them having no paper trail which might show bias.