This is the seventh installment in a series of posts drawn from a 24 January 2014 lecture on Judicial Ethics at the ADC-ICTY’s Twelfth Defence Symposium for interns and staff at the ICTY. The complete document is available on my website.
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G. Staff Members
Following the discussion on judges, I then moved on to discuss instances bias raised concerning judicial staff. The question is whether Chamber’s staff members are subjected to the same rules as Judges and therefore subject to disqualification. The answer is no, Rule 15(A) ICTY Rules of Procedure and Evidence (RPE) applies only to Judges. Noteworthy, there is no explicit code of conduct for Chambers or Prosecution staff members even though they carry out highly sensitive functions and, in many instances, are, or are presumed to be, agents of the judges and prosecutors whom they serve. Presumably, under their contractual obligations they are to conduct themselves in an ethical manner, though query whether that is enough.
ICTY Case Against Senior Legal Officer Florence Hartmann
In the Hartmann[1] case before the ICTY, in which a Senior Legal Officer allegedly had ex parte communications with the amicus curiae—who was acting on behalf of the Prosecutor—regarding the provision of confidential materials to the Defence.
The Defence alleged that the Senior Legal Officer had provided assistance and advice of an unspecified sort to the amicus curiae, which amounted to direct and ex parte participation in the investigation and preparation of the case against Ms. Hartmann. The Trial Chamber held that:
Rule 15 is very clear in its application solely to judges of the Tribunal. It does not contemplate disqualification of chambers staff, nor is the contemplated in the Tribunal’s jurisprudence on this issue.[2]
ECCC Case 002: OCIJ Staff Boyle and Heder
Under the ECCC Internal Rules, the OCIJ is an independent office within the ECCC,[3] and must carry out investigative functions impartially.[4] In the investigative phase, the Co-Investigating Judges, and staff members carrying out their functions, are responsible for the entirety of the investigations including searching for exculpatory evidence. Any lack of independence of impartiality could have a severe impact on the proceedings.
In Case 002, regarding Boyle and Heder—respectively a legal officer and an investigator in the OCIJ—the facts had produced what appeared to be “a reasonable apprehension of bias.”[5] David Boyle “had authored numerous articles concerning the ECCC”[6] and commented on “its establishment, to the nature of the Khmer Rouge, to historical events of the relevant period, and to the individuals expected to be held responsible for the alleged crimes.”[7] In these writings, Mr. Boyle had offered his opinions and conclusions, which gave the impression that he harbored prejudgments—actual bias. Mr. Boyle had also made the following comment at a conference in Phnom Penh concerning the validity and application of the Royal Amnesty and Pardon issued to the accused Ieng Sary:
The case of Ieng Sary is an example of the problems that will arise before the Cambodian court. Ieng Sary has been granted a constitutionally valid pardon and immunity for certain crimes and for prosecution under the 1994 law. To what extent is this constitutionally valid amnesty and pardon applicable before the Khmer Rouge trial? This has been left to the court to decide. All these questions will be raised by the defense, and should be dealt with beforehand in order to avoid that talented lawyers will slow trials down so much that three years will not be enough to finish. There are two possible avenues for partially resolving these issues. One would be for the judges immediately after having been nominated by the SCM [Supreme Council of Magistracy] to get together with prosecutors and investigating judges and work out exactly what is the applicable procedure for the courts. They cannot change the law, but they can work out what the law means.[8]
The Defence sought to have further information about Mr. Boyle’s writings and statements “on this myriad of legal issues faced by the ECCC and directly affecting Mr. Ieng Sary.”[9] The OCIJ was not forthcoming with the request. Instead of providing the information requested, the OCIJ merely asserted (without supporting authority) that “there does not appear to be any legal basis for such repeated demands.”[10]
Stephen Heder worked for the Office of the Co-Prosecutors (“OCP”) before he joined the OCIJ.[11] He had extensive involvement in compiling information for the drafting of the Introductory Submission in Cases 001 and 002. It was believed at the time that he was still employed as a consultant to the OCP, providing assistance and legal advice.[12] The Defence asked the OCIJ for more information about Mr. Heder’s prior employment at the OCP. The OCIJ defensively responded that Mr. Heder’s prior work for the OCP “[did] not raise any problem regarding the independence and impartiality of the Co-Investigative Judges, and in no way prejudices the progress of ongoing judicial investigations.”[13] No information was provided concerning the nature of Mr. Heder’s work for the OCP and the OCIJ, and his role in the drafting of the Introductory Submission (IS).[14]
In 2008, it came to the attention of the Defence that Mr. Heder submitted a book proposal titled “Genocide and Auto-Genocide in Cambodia: Communism, Nationalism, and Murder, 1975-1978.”[15] Heder referred to his qualifications as “having researched the CPK for 30 years, as a journalist, intelligence officer, human rights advocate, historian, UN official, legal scholar and political scientist” before working with the OCIJ.[16] The qualification of “intelligence officer” suggested that there may be a lack of independence and impartiality, as intelligence officers take commands from state governments. Given his American nationality, the Defence drew an inference that he was employed with the United States Central Intelligence Agency (“CIA”). In addition to the US’s involvement in the region, and extensive bombings, the US maintained a strong interest in minimizing its role in the bombings and intelligence operatives in the region.[17] If, as an OCIJ investigator, Mr. Heder had been employed as an intelligence agent, and thus took instructions from a state government, this would certainly affect his impartiality and independence. Having heard of this information, the Defence requested more information concerning Mr. Heder’s prior employment as an intelligence agent as well as “anything else that might be relevant to the issues of Mr. Heder’s fitness and to be fair and impartial in carrying out his functions as an investigator.[18] Again, the OCIJ was defensive, submitting a late response claiming a lack of a legal basis for the request, and stating that it had no knowledge of any information that might support the allegations.[19]
Pursuant to Rule 34(5), the Ieng Sary Defence requested to disqualify Mr. Heder from all analytical or investigative tasks on Case File 002 and Mr. Boyle from all legal, analytical or investigative tasks on Case File 002,[20] on the grounds that the judicial obligation of impartiality “must equally apply to staff within the OCIJ which are either assisting with these functions or conducting them on behalf of the OCIJ.”[21] The ECCC Pre-Trial Chamber held that “Internal Rule 34 deals with the disqualification or recusal of a ‘judge’ and explicitly provides the grounds for the admissibility of an application for disqualification”[22] and that “these grounds of admissibility are exclusive and clearly refer only to specific judges.”[23] The Pre-Trial Chamber added that “the procedural rules established at the international level regarding disqualification apply exclusively to judges and do not extent to the staff members of a court.”[24]
ICC Staff: Prosecutor v. Thomas Lubanga Dyilo, Senior Legal Advisor Olásolo
In the Olásolo matter in the Lubanga case at the ICC, the Prosecutor had filed an application requesting that the Senior Legal Advisor of the Pre-Trial Division, who had previously worked at the Office of the Prosecutor, should be prevented from rendering advice in Prosecutor v. Lubanga Dyilo, and that he should be separated as well from the case while the Prosecutor’s application is pending.[25] The Pre-Trial Chamber did not consider itself the appropriate organ of the Court to handle the matter raised in the application.[26] These cases illustrate that staff members are not subject to the same rules as judges regarding disqualifications.
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Next: The Obligations of Defence Counsel in exercising due diligence, and Conclusion.
[1] Case Against Florence Hartmann, IT-02-54-R77.5, Report of Decision on Defence Motion for Disqualification of Two Members of the Trial Chamber and of Senior Legal Officer, 27 March 2009.
[2] Id., para. 54.
[3] ECCC Internal Rule 14(1).
[4] ECCC Internal Rule 55(5).
[5] Case of NUON Chea et al., 002/19-09-2007-ECCC-OCIJ/PTC, Decision on the Charged Person’s Application for Disqualification of Drs. Stephen Heder and David Boyle, 22 September 2009.
[6] Case of NUON Chea et al., 002/19-09-2007-ECCC-OCIJ/PTC, Application for Disqualification of OCIJ Investigator Stephen Heder and OCIJ Legal Officer David Boyle in the Office of the Co-Investigating Judges, 8 July 2009, Doc. No. 1, para. 4.
[7] Id.
[8] Report from a conference held in Phnom Penh March 2-3, 2005 organized by FIDH, LICADHO and ADHOC, International Criminal Court Programme: Articulation between the International Criminal Court and the Khmer Rouge Tribunal: the Place of Victims, 3. B. David Boyle, The Legal Framework of the Khmer Rouge Tribunal, p. 18 (emphasis added).
[9] Case of NUON Chea et al., 002/19-09-2007-ECCC-OCIJ/PTC, Application for Disqualification of OCIJ Investigator Stephen Heder and OCIJ Legal Officer David Boyle in the Office of the Co-Investigating Judges, 8 July 2009, Doc. No. 1, para. 4.
[10] Id., para. 5.
[11] Id., para. 2.
[12] Case of NUON Chea et al., 002/19-09-2007-ECCC/OCIJ, Request for Information Concerning the Potential Existence of Conflict of Interest of OCIJ Investigator Stephen Heder, 30 January 2009, para. 4.
[13] Id., paras. 2-3.
[14] Id.
[15] Id., para. 1.
[16] Id.
[17] Id., para. 2.
[18] Id.
[19] Case of NUON Chea et al., 002/19-09-2007-ECCC/OCIJ, Application for Disqualification of OCIJ Investigator Stephen Heder and OCIJ Legal Officer David Boyle in the Office of the Co-Investigating Judges, 8 July 2009, Doc. No. 1, para. 9.
[20] Id., para. 66.
[21] Id., para. 10.
[22] Case of NUON Chea et al., 002/09-19-2007-ECCC/OCIJ, Decision on the Charged Person’s Application for Disqualification of Drs. Stephen Heder and David Boyle, 22 September 2009, para. 13.
[23] Id., para. 14
[24] Id., para. 15.
[25] Prosecutor v. Lubanga Dyilo, ICC-01/04-01/06, Decision on Prosecutor’s Application to Separate the Senior Legal Adviser to the Pre-Trial Division from Rendering Legal Advice Regarding the Case, 27 October 2006.
[26] Id.
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