The defence team for ex-Brother No 2 Nuon Chea has said it will likely move to disqualify the Khmer Rouge tribunal’s current trial chamber judges from hearing the upcoming Case 002/02, citing the possibility of bias stemming from judges’ work on the court’s previous cases.
The chamber has already ruled that the same judges will hear the second segment of Case 002, but in a filing dated January 31, the defence argues that the trial chamber, which rendered a judgement against S-21 prison chief Duch in Case 001, would be tasked with adjudicating similar facts in Case 002/02, of which S-21 will be a component.
Given that the same chamber will also soon render a verdict in Case 002/01, which dealt with the roles of senior leaders like Chea, the defence maintains that the chamber’s position on Case 002/02 may be a foregone conclusion.
“The Defence notes, in response to an oral inquiry from the Chamber, that there is a strong likelihood that it will seek disqualification from Case 002/02 of any member of the Trial Chamber to have adjudicated Case 002/01,” the filing reads.
The court’s Supreme Court Chamber (SCC) raised the same issue in its decision on the appeals against the trial chamber’s decision to sever Case 002.
Though it overturned the appeals, the SCC nonetheless allowed that the trial chamber did not examine “the potential prejudice to the rights of the Co-Accused caused by real or perceived judicial bias”.
Open Society Justice Initiative tribunal monitor Heather Ryan said it was “interesting” that the SCC had raised the issue of bias without being prompted.
If Cases 002/02 were considered to simply be an extension of 002/01, she added, the defence’s claims of bias were weakened, but judges’ involvement in Case 001 still raises questions.
“The issue is different with the judge having sat on 001 and now judging similar facts and issues in 002,” Ryan said. “If you look at [002/02] as a separate trial from [002/01], [then] the argument seems a little stronger.
“Nonetheless, I am not sure that the argument of a conflict wins,” she continued. “I have not looked into it deeply, but I can easily see a court ruling on the issue and talking about the ability of professional judges to not be unduly biased. But [if] the question gets to the SCC – it seems that they have given strong hints about how they think about it.”
International co-prosecutor Nicholas Koumjian said that he would wait until the defence had made their motion before responding to their argument, but reiterated the prosecution’s position that it would not be taking any similar action.
“It is the judges’ job to make decisions, and the fact that they rule against a party does not of itself mean that a reasonably informed observer would consider them biased,” he said in an email. “Making decisions based on law and evidence does not constitute bias.”