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.