Judge Nil Nonn Will Not Be Disqualified

Ieng Sary’s defense team recently attempted to have the Trial Chamber’s President Judge Nil Nonn removed from Case 002 on the basis of the judge’s misconduct which allegedly had occurred during his service in the national courts of Cambodia and prior to the establishment of the ECCC. As evidence of this misconduct the Sary defense team proffered a reference to a documentary which they claimed featured Judge Nil telling a reporter that he had “accepted cash gratuities from grateful litigants”. The defense team, however, was unable to produce the documentary as an exhibit and requested the Trial Chamber’s assistance in securing it. The principal legal basis of this application was Rule 34(2) of the Internal Rules of the ECCC which stated the following:

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

A plain reading of the above rule evinces that this rule does not refer to any disciplinary measures which may or may not result in the removal of a judge from the judicial profession as such but to specific cases the impartiality and/or bias of the judge in which the applicant is supposed to demonstrate. The Trial Chamber correctly and immediately found this not to be the case in the instant application as it alleges improprieties committed by Judge Nil prior to his ECCC service and in cases very unlikely to be relevant to Case 002. Following this finding and instead of moving on to its other business the Chamber chose to embark on a purely academic exploit of the system of disciplining judges which exists under Cambodian law. This is where trouble began. The Chamber went on to point out what it felt were the statutory weaknesses in the disciplining system during the course of which it offered us its two cents’ worth on the root causes of these weaknesses. Once in a zone, the Chamber declared that the ECCC was “designed in part to reinforce measures intended to strengthen domestic judicial capacity in Cambodia” (just when we all thought that the ECCC was established to prosecute the horrendous crimes within its subject-matter jurisdiction, not to serve as a well-funded playground for international judicial trainers to run their training programs while using historical facts as classroom hypotheticals and victims and witnesses as mere actors who act out these hypotheticals to enhance the quality of the training; nor do those of us familiar with the history of the process buy the Chamber’s argument that the international judges were meant to serve as the national judges’ trainers by the design of the ECCC). Pressing on, the Chamber declared the ECCC to be “a model court” (the only model court I am aware of which is recognized by the Cambodian government as ‘model court’ is the Kendal Provincial Court; it is unbeknownst to me at what point and by what authority ECCC was officially designated as ‘model court’ (the operative word here is ‘officially’ as ECCC has been referred to as a model court for the Cambodian judiciary by a number of Western academics who, unlike the ECCC, have the liberty of making statements based upon their own perception of things and unrestrained by the position of the Cambodian government (ECCC being part of the Cambodian judiciary does not have such liberty and must stick to what has been officially decided as a matter of policy when it comes to designations which have nothing to do with the independence of judiciary). From there the Chamber leaps to policy advice in which it indicates that “a genuine commitment” on the part of the Cambodian government is necessary to “fully restore public confidence in the judiciary”. Besides the judges’ desire to pontificate about development topics, it is impossible to see under what authority the Chamber had either the mandate or the competence to give this advice. Finally, denying the defense’s motion for disqualification, the Chamber sends another message to the Supreme Council of Magistracy by stating that “the need for such mechanisms [mechanisms to uphold the standards of judicial integrity] to operate effectively and equitably in order to safeguard public confidence in the judiciary and to strengthen the rule of law within Cambodia” (reading this statement one cannot help but wonder about the extent to which the Cambodian judges of the Trial Chamber participated in the penning of it).

Lecturing from the bench aside (unfortunately, the ECCC is not the only court in the world prone to such lecturing), this decision raises a number of curious issues: (1) Are the international judges of the Trial Chamber implicitly telling us “yes, we know the Cambodian judges are corrupt and we regret this but there is nothing we can do about it; the good news is that the profile and expectation of convictions from these cases is so that there is little doubt that the accused will not be able to pay their way back to liberty out of them (and even if they could judicial salaries of the ECCC are way too high for any of the accused to have the financial means to interest the Cambodian judges)”? (2) Why did the defense raise this issue? All posturing aside, a plain reading of the text of Rule 34(2) makes it very clear that there is no quality of argument that can force the plug of the allegations into the outlet of the rule (although the defense did grab a pair of pliers and tried a couple of tweaks) (the defense could have expanded this to a larger-scale argument and contended that Rule 34(2) was improperly constituted, both under domestic and international law, or that the Internal Rules were improperly constituted or illegally adopted under the law which established the ECCC but they did not do that); Is this a mere exercise of due diligence or a rung in the Stairway to the Heaven of Discrediting of the Entire ECCC Process the Sary defense team is working on or is it the Sary defense team’s contribution to a much loftier cause, i.e. using the ECCC process to do things that would never be allowed in domestic courts (such as questioning a judge’s impartiality)? The first a bureaucratic exercise which amounts to nothing more than “we have done all we could” which will be an argument based on the amount of paper filed with the Chambers, not the promise the arguments written on it bore; the second will be interesting to watch unfold; the third is commendable and might show to the general populace that while there is no actual reform going on now but there is hope; (3) Where is the voice of the Cambodian judges in this decision? (4) Someone will need to watch to start crying wolf when Ieng Sary starts getting a treatment different from the other accused and which may or may not be Judge Nil’s payback for trying to have him disqualified as such actions of the defense are unheard of in Cambodia and the Cambodian judges need to be watched in how they react to them.

DSS Steps In to Rectify What It Sees As Ineptitude

At the outset, let’s dispense with a potential claim that the ECCC’s Defense Support Section (DSS) never phrased its present intervention in the terms as direct as those of the title of this article. Yes and no. No, the DSS never used any of these words in either of its motions to the Supreme Court Chamber (SCC). Yes, this is exactly what the DSS meant to do, whether it phrased it as directly as I did or not. It is evident from the following: (1) DSS goes to the SCC to inform the Chamber that “the Co-Lawyers for the Accused have not addressed a number of issues of law raised on appeal by the Co-Prosecutors” (by which DSS insinuates incompetence on the part of the Co-Lawyers (DSS means to say that the Co-Lawyers did not identify the full scope of the issues they needed to counter); (2) DSS believes they can do a better job identifying these issues and providing counterpoints for them than did the Co-Lawyers; (3) when the SCC rejected the DSS’s request for leave to submit an amicus curiae brief to rectify the inadequacies of the Co-Lawyer’s submission, DSS filed another motion this time requesting that an appeal for amicus curiae briefs be made to third parties (by this, the DSS appears to be saying that if the SCC will not let them submit an amicus brief, they want the Chamber to grant leave to do so to someone else; the DSS’ persistence in this case is indicative of their perception of the level of inadequacy of the Co-Lawyers’ submission and the harm it can do to the convicted person (Duch); (4) this is the first time the DSS has taken the role of fixing a Co-Lawyers’ motion I am aware of.

This attempted intervention of the DSS, whatever its outcome might end up being, is not a matter confined to a single accused or a single case and must be understood as such. What has happened here is an intervention of a purely administrative organ of the Court into a substantive matter within the competence of other persons (Co-Lawyers) who have been hired to deal with this – and other – matter based upon their proven (at least theoretically) competence to do so and based upon the rules chiseled out by the DSS. Under the law which established the ECCC there is no express provision which establishes an organ such as the DSS. There are, however, provisions to this effect enshrined in the Internal Rules (IRs). My reading of these provisions is the same as that of the Co-Prosecutors, i.e. there is not a single provision in the IRs which can be reasonably interpreted as giving the DSS authority to file motions with the Chambers or, put another way, deal with substantive (by ‘substantive’ I do not mean ‘substantive v procedural’ but broadly encompassing all matters other than administrative and financial) issues of cases. The two relevant motions of the DSS, I infer that the DSS’ reading of its mandate spelled out in the IRs is the same as mine and the Co-Prosecutors. As such, there is nothing in the law (it is arguable to what extent the IRs constitute a law but I am including them in this definition of ‘law’ here regardless) which gives the DSS authority to intervene the substantive aspects of the proceedings. However, what is the DSS supposed to do (it is staffed with lawyers some of whom have backgrounds beyond court administration) if it sees a motion filed by Co-Lawyers so manifestly inadequate that it will doubtless harm the accused or convicted person, if not cured? By law, essentially nothing. It should stand and watch Co-Lawyers do the job they were hired to do, hope that these perceived omissions are elements of a newfangled legal strategy (and once their complexity is revealed will become apparent to all qualified observers), and only intervene in matters of administrative nature as the Chambers are the guarantors of the rights of the accused under the IRs. Commendable as the DSS’ commitment to the rights of the accused has been revealed through the present action to be, the DSS must be restricted to its administrative functions as once an exception is made (and this is as good a situation to make an exception for as it will probably ever be) it will be impossible to put the cork back in that bottle. While the Chambers are theoretically the gatekeepers of the quality of lawyering in the proceedings before them, the adversarial nature of these specific proceedings entails a contest where the weaker loses and the stronger wins (in my opinion, not only did the prosecution have a factually more defensible position, they acted significantly superior to the defense as a group of lawyers and investigators in Case 001; the Trial Chamber – not could any other court -- could do nothing to guarantee that the quality of lawyering is equal (equally good or equally bad) on the both sides). Some might consider this situation to be something that cannot and should not be controlled by anyone once reasonable requirements for the hiring of lawyers have been met. Others might believe that there are particularly grave situations which are so inimical to the rights of the accused or convicted person that someone should inveigh against them. DSS falls within the latter category and saw intervention as part of its mandate in spirit, rather than that in letter. This situation doubtless shows that the IRs are inadequate to deal with this matter and must be amended at the next plenary so that they can.

PTC Rejects Motions for Pre-Trial Release; Amends Indictment to Exclude Rape as a Stand-Alone Offense

Today, the Pre-Trial Chamber of the Extraordinary Chambers in the Courts of Cambodia (ECCC) has confirmed and partially amended the indictments against the Accused Persons Ieng Sary, Ieng Thirith, Khieu Samphan and Nuon Chea. The Pre-Trial Chamber has ordered the Accused Persons to be sent for trial and to continue to be held in provisional detention until they are brought before the Trial Chamber. The indictments include charges of crimes against humanity, genocide, grave breaches of the 1949 Geneva Conventions and murder, torture and religious persecution as defined by the 1956 Cambodian Penal Code.

The Co-Investigating Judges issued a Closing Order with the initial indictments of the Accused Persons on 15 September 2010. All four Accused Persons filed appeals against the Closing Order to the Pre-Trial Chamber.

The Pre-Trial Chamber found that the appeal filed by Khieu Samphan was inadmissible, whereas the appeals filed by Ieng Sary, Ieng Thirith and Nuon Chea were found to be admissible in part. Of the admissible parts, the Pre-Trial Chamber dismissed all the grounds of appeal with two exceptions. First, the Pre-Trial Chamber ordered that the Closing Order be amended with a specification for the requirement of the existence of a link between the underlying acts of crimes against humanity and an armed conflict.

Secondly, the Pre-Trial Chamber also found that rape did not exist as a crime against humanity in its own right in the period 1975-1979, but that rape could be considered as “other inhumane acts” within the legal definition of crimes against humanity. The Closing Order was amended accordingly. The Pre-Trial Chamber will issue reasoned decisions on the appeals at a later date.

Defense Makes Another Push for Pre-Trial Release of the Accused

The Trial Chamber in the Extraordinary Chambers in the Courts of Cambodia (ECCC) has decided to conduct one consolidated hearing on Monday 31 January 20111 to hear oral submissions related to:

•    “Urgent Application for Immediate Release of Nuon Chea”. The Application is available at http://www.eccc.gov.kh/english/cabinet/courtDoc/824/E19_1_EN.PDF

•    Khieu Samphan’s “Application for Release Pursuant to Rule 82(3) of the Internal Rules". The Application is available at http://www.eccc.gov.kh/english/cabinet/courtDoc/823/E18_1_EN.PDF

•    “Urgent Request for Immediate Release of Madame Ieng Thirith”. The Request is available at http://www.eccc.gov.kh/english/cabinet/courtDoc/830/E21_EN.PDF


The hearing will start at 9:30 am. The Defence for each Accused, will each be permitted a maximum of 30 minutes to present their Applications. The Co-Prosecutors will be allowed a total of 60 minutes to respond to all Applications. The Accused's Defence will then be permitted 10 minutes each in response.

There are 482 seats in the public gallery of the courtroom, which are available for diplomats, media and the general public. Seats are distributed on first come, first served basis. Diplomats and media representatives who wish to reserve a seat in the public gallery must contact the ECCC Public Affairs Section at PAS@ECCC.GOV.KH at latest by Friday 28 January 2011.

We recommend that visitors arrive no later than 45 minutes before the hearings in order to leave sufficient time for registration and security check. All persons seeking admission to the ECCC courtroom must present a proof of identification (including a photo) and must pass through a security check.

Participants shall maintain dignity and proper behaviour all the time and shall wear appropriate clothing (no beachwear or shorts, flip flops etc). Their clothing may not display slogans, indicate their support for or to be offensive to any party of the proceeding. Please note, no persons under 16 years of age will be admitted to the Court and persons 16 -18 will be admitted only with the guardianship of an adult. No mobile phones, large bags, food or drink are permitted in the main courtroom.

Media accreditation and facilities
Representatives of the media that wish to attend the hearings are kindly requested to seek accreditation no later than on Friday 28 January 2011.

Media representatives currently holding an expired ECCC Press Accreditation Card must submit a completed Media Accreditation Form which can be downloaded from http://www.eccc.gov.kh/english/mediaRelations.aspx and send it to PAS@ECCC.GOV.KH. Please indicate the card number on your expired card.

Media representatives who have not previously been accredited to the ECCC must submit a completed Media Accreditation Form http://www.eccc.gov.kh/english/mediaRelations.aspx and send it to PAS@ECCC.GOV.KH together with a jpg portrait photo and a copy of their passport.

Please note that Media Accreditation Forms must be signed by the applicant before the request for accreditation can be processed.

A live feed of the public hearing will be available in the media room C105.

How to get to the court
The ECCC is located in Chaom Chau, 16 kilometers from downtown Phnom Penh, on the left hand side of National Road 4.

Public and media are requested to enter from the visitor’s gate at the eastern end of the compound.

Japan Contributes to the UN Side of the Tribunal

The Government of Japan has confirmed that it will provide a new contribution of US$11,705,975 to the Extraordinary Chambers in the Courts of Cambodia (ECCC), of which US$8,771,225 is for the international component and US$2,934,750 for the national component. This contribution will cover about 25% of the ECCC’s budget for 2011.

The Government of Japan has provided assistance to the ECCC since its establishment, and it is the single largest donor to the ECCC.  With this latest pledge, Japan has provided financial assistance of about US$67 million or about 49 % of the total Pledges and Contributions to the ECCC to date.

“I would like to express my deepest gratitude for this generous contribution and the continued support from the Government of Japan, which comes at a crucial time for the ECCC.  This support is essential in enabling the ECCC to move forward with the important work to complete its mandate”, says H.E. Tony Kranh, Acting Director of Office of Administration in a statement.