Questions of judicial bias have long dogged the Khmer Rouge tribunal, often as a matter of legal and academic debate. However, with the court set to begin hearing evidence of the Khmer Rouge’s policy of forced marriage in the coming weeks, that debate may take on a distinctly personal tinge.
One of the trial chamber judges tasked with impartially adjudicating that evidence is himself a victim of forced marriage.
The information was revealed by former judge Silvia Cartwright in a talk before the Washington, DC-based Aspen Institute last November, though her remarks have risen to the fore only recently thanks to a filing from the Nuon Chea defence that seeks to have them admitted into evidence.
“I know that other judges on the bench – one of them was forced to marry his wife,” Cartwright says in a video of her remarks, noting that the judge, whom she does not name, didn’t find the policy so different from the prevailing culture of arranged marriages, but nonetheless counted himself “extraordinarily lucky” in that he recognised his assigned wife from a neighbouring village.
Cartwright then goes on to note that, despite their impartial demeanour, the trial chamber’s Cambodian judges have offered indications – such as “growling” – of seeming disapproval of the Khmer Rouge’s alleged crimes.
Though the Chea filing does not mention the judge’s alleged forced marriage, it contends that Cartwright’s remarks demonstrate the “inability of Cambodian members of the Trial Chamber to assess evidence impartially without reference to their own personal experience in Democratic Kampuchea”.
And while the idea of a victim judging the guilt of his alleged victimiser may, on its face, sound like the definition of an appearance of conflict of interest, the situation recalls an old and still-unsettled question in the Cambodian context: Is there any such thing as an unbiased judge in a case in which almost an entire country’s population can be considered a victim?
According to tribunal monitor Heather Ryan of the Open Society Justice Initiative, “at least the appearance of necessary impartiality is violated if a judge is a victim of a crime that is the subject of a trial”.
But, she added via email, “in this case, it is a difficult analysis because every Cambodian judge could be considered a victim of the KR crimes. The analysis of bias has to look at how close the relationship is between the facts under consideration and the judges’ experience.”
Khmer Rouge researcher Youk Chhang, director of the Documentation Center of Cambodia, likewise sought middle ground, saying that such judges are “not legally qualified” to judge impartially, but also noted the question “depends on how close it is, and how professionalism has been impressed upon them”.
The issue, he noted, has been a matter of discussion for almost two decades.
“I was asked to do research on judges, their background, their education. So I was looking through all the judges around the country. Most of the judges back then were victims of the Khmer Rouge – that was back in 1995, ’96,” he said.
“When this information we researched was published, there was a concern that none of the Cambodian judges were qualified [on the basis of impartiality], so there was a push for a purely international tribunal.”
Ultimately, he continued, internal court rules mandating “super majority” decisions requiring the assent of the court’s international judges seemed to put the debate to rest, at least in court.
Tribunal expert Anne Heindel, co-author of the book Hybrid Justice, said that, from a legal standpoint, the internal rules’ assumption of Cambodian judges’ bias means the court takes a “narrow view” of legal challenges based on judges’ alleged prejudice.
“I don’t believe the fact that a judge was a victim of the crime of forced marriage without more (for example he was victimized at a specific crime site being discussed) would be enough for his disqualification, though it certainly raises impartiality concerns,” she said in an email.
“The political biases of the Cambodian judges were known from the beginning and rules were drafted to minimize their impact, making the entire concept of ‘appearance of bias’ to a large extent meaningless at the ECCC.”
A request for comment on the issue to the trial chamber’s national-side judges was not answered as of press time.
While the legal pitfalls behind judges’ victimhood may have been patched over by the internal rules, little can be done to put to rest qualms over judges’ inner reactions to the evidence heard at the tribunal
As Cartwright says in the same talk before the Aspen Institute: “Their experiences, I don’t know how they sit through some of it.”