This is the sixth 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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E. Corruption, Impartiality and Fitness to Sit as Judge
ECCC Case 002, Ieng Sary’s Motion to Disqualify Judge Nil Nonn
In 2002, Amanda Pike, a documentary filmmaker, traveled to Cambodia and produced the documentary “Cambodia: Pol Pot’s Shadow.”[1] While filming the documentary, Ms. Pike interviewed Judge Nil Nonn, the then President of the Provincial Court of Battambang. This interview served as a basis for her article “Battambang: The Judge.” In this article, Ms. Pike reported:
We talk with Judge Nil, who says that he’s upset by people’s lack of faith in the justice system. He laments that he often has to defend his profession to his friends. He admits that, yes, he does take bribes—of course—but only after a case is over. After all, he earns only $30 a month, not nearly enough to provide for his family. What else, he asks with that toothy grin, is he supposed to do?[2]
Judge Nil Nonn, when interviewed in 2006 by the Cambodia Daily, denied that he had ever taken bribes from the public or participated in the interview.[3] He stated “however, if after a trial people feel grateful to me and give me something, that’s normal I don’t refuse it. . . . I’ve settled a case for them and people feel grateful. Living conditions these days are difficult for me. But if you are talking about pressuring people for bribes—no.”[4]
Having learned of this article, the IENG Sary Defence first took steps to obtain more information. First, the IENG Sary Defence attempted to locate Ms. Pike and obtain the video footage from her interview with Judge Nil Nonn and Judge Nil Nonn’s release form to be filmed. Ms. Pike responded that she would not release the material voluntarily on “journalistic grounds.”[5] Similarly, the IENG Sary Defence wrote to Mr. Welsh at the Cambodia Daily who also declined to provide information.[6] Shortly thereafter, the IENG Sary Defence filed a motion to the Trial Chamber seeking to disqualify Judge Nil Nonn on the basis of corruption and a related request to investigate the action.[7]
I used this case as an example to illustrate the different customs and expectations of judges, based in part of their existing legal / judicial environment, a form of cultural relativism. However, Justice Michael Kirby, former Justice of the High Court of Australia reminds us otherwise: “the law may differ from country to country. But the expectation of an uncorrupted judge, is or ought to be universal.”[8] Judge Nonn’s practice of accepting “gratuities” from grateful litigants after trials demonstrates a failure to act independently, impartially, and with integrity. Who is more likely to provide a better gratuity—the poor farmer—or a wealthy company seeking to capitalize on the farmer’s land? This conduct prevents a judge from acting independently and impartially in his judicial affairs. I argued that tolerating a judge to remain on the bench who has a sustained history of effectively taking bribes is unquestionably a form of corruption.[9]
As noted earlier, the starting point for a challenge at the ECCC is Internal Rule 34(2). An application for disqualification of a Judge may be filed in any case: “in which the Judge has a personal or financial interest,” or “concerning 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.”[10] Again, we see the ECCC applying the Furundžija test regarding actual bias or the appearance of bias: “the circumstances would lead a reasonable observer, properly informed, to apprehend bias.”[11] Also noteworthy is the agreement between the Royal Cambodian Government and the United Nations requiring that “[t]he judges shall be persons of high moral character, impartiality and integrity . . . They shall be independent in the performance of their functions and shall not accept or seek instructions from any government or any other source.”[12] Simple and appropriate. Judges at the ECCC must not only be independent and impartial, but must also appear to be independent and impartial to an objective observer. These rules coincide with international standards as expressed in the ECCC Code of Judicial Ethics, which mirrors the ICC Code of Judicial Ethics.[13]
The ECCC Trial Chamber found that since there were no accusations of bias in the pending case before the tribunal, there was no risk of misconduct arising in the present case.[14] The Trial Chamber construed Internal Rule 34 in a way that “disqualification pertains to bias against a particular accused in relation to a particular case, and cannot be used to lodge a general complaint about the fitness of an individual to serve as judge.”[15] However, the Trial Chamber noted, a pattern of improper conduct, may call into question a person’s qualifications to act as judge at the ECCC.[16] The Trial Chamber dismissed the request stating that:
The Application neither alleges, nor seeks to establish, actual bias on the part of Nil Nonn in relation to the case pending before the Trial Chamber. As the Application itself acknowledges, no risk of misconduct arises in the present case. There can accordingly be no apprehension of bias by an objective observer informed of all relevant circumstances insofar as they pertain to Case 002.[17]
The Chamber distinguished a disqualification of a judge—in a particular case—to the removal of a judge for fitness to serve as judge.[18] The Chamber held that at the ECCC, the mechanisms to determine whether a person is fit to serve as a Judge are found within domestic law and decided in national law.[19] Yet, application of the Čelebići Decision, discussed below, would support the notion that questions relating to the fitness of an individual Judge can be decided by the ECCC at its Plenary.
ECCC Case 002: Attempted Disqualification of Judge Ney Thol
Judge Ney Thol joined the Cambodian army in Takeo Province shortly after the fall of Democratic Kampuchea in 1979. He was then transferred to the Military of National Defence in Phnom Penh where he ultimately gained the rank of General. Judge Ney Thol was appointed to the Royal Cambodian Armed Forces (RCAF) Military Court in 1987, where he chaired that tribunal while simultaneously serving as a member of the Cambodian People’s Party (CPP) central committee.[20] By 1998, the RCAF and predecessor forces had fought against the Khmer Rouge for nearly twenty years. While serving on the RCAF Military Court, Judge Ney Thol had convicted officials for crimes committed during the conflict, and even presided over a judicial investigation of Kaing Guek Eav (Duch), an accused in Case 001 at the ECCC. Judge Ney Thol, a serving RCAF officer, still remained subject to military discipline, assessment, and executive command. Judge Ney Thol had also participated in highly political cases[21] while serving on the RCAF Military Court including the (indefinite and heavily criticized) pre-trial detention of Duch, an accused in Case 001.[22]
At the ECCC, the Judges shall “have high moral character, a spirit of impartiality and integrity, and experience, particularly in criminal law or international law including international humanitarian law and human rights.”[23] The ECCC Agreement and ECCC Law provide that all judges “shall be independent in their performance of their functions and shall not accept or seek instructions from the Government or any other source.”[24] This principle of independence is codified in several human rights documents[25] and is regarded by the UN Rights Committee as “an absolute right that may suffer no exceptions.”[26]
The NUON Chea Defence team challenged Judge Ney Thol’s fitness to serve as judge at the tribunal on grounds of his lack of independence and impartiality,[27] and argued that the presence of a serving member of the military as a judge on a civilian tribunal may cast doubt on the court’s independence and impartiality.[28] A judge who remains subject to military discipline and assessment, who must take orders from the executive, is no doubt influenced by outside bodies. Under the Furundžija test for bias, actual bias must exist or an unacceptable appearance of bias, where “the circumstances would lead a reasonable observer, properly informed reasonably to apprehend bias.”[29] In this case, it was argued that Judge Ney Thol’s position as an officer to the RCAF would certainly amount to an “association which may affect his impartiality” under ECCC Internal Rule 34(2), discussed above.[30] Given Judge Ney Thol’s service in the military, membership with the CPP, and participation in political trials, surely a reasonable observer, properly informed, would have apprehended bias. Scholars, experts, and the UN Secretary General’s Special Rapporteur in Cambodia have noted that the Cambodian judiciary has had systematic problems with impartiality and independence and a long-standing policy of using the judiciary to eliminate political opposition.[31] Judge Ney Thol’s questionable conduct on the Military Court shows that he “has shown a willingness to improperly utilize his judicial power in service of the CPP’s agenda.”[32]
The Pre-Trial Chamber disagreed, ultimately finding no actual bias or appearance of bias on the part of Judge Ney Thol. The Pre-Trial Chamber considered that Judge Ney Thol did not occupy his position as a Pre-Trial Chamber Judge of the ECCC in the capacity of an RCAF officer, but in his personal capacity (completely ignoring the realities and politics of his appointment) and held that the conclusions drawn from his position do not meet the required threshold to rebut the presumption of impartiality.[33] As for his participation with the Military Court in highly political cases, the Pre-Trial Chamber noted that “the mere fact a judge was a member of a political party does not give rise to the necessary inference that his decisions are politically motivated or influenced.[34] The Pre-Trial Chamber considered that when a Judge takes an oath of office, it is assumed that he or she can cleanse their minds of personal beliefs and predispositions.[35]
F. Remedies: Judicial vs. Administrative
After discussing the above scenarios and ethical considerations concerning judges, I discussed the distinction between judicial remedy (such as the Prlić case dealing with Judge Prandler) and administrative remedy (such as ECCC Case 002, dealing with Judge Nil Nonn).
A judicial remedy is to move for disqualification of a judge in a specific case. An administrative remedy deals with conduct or situations, which are incompatible with the discharge of judicial functions. In other words, it is an administrative determination as to whether an individual is fit to be a Judge. Judges are expected to “be persons of high moral character, impartiality and integrity.[36] The Čelebići decision distinguishes between administrative determination as to whether a person is qualified to act as a Judge; and disqualification, which pertains to the judge’s impartiality with respect to a particular case.[37] However, “there may be overlap between the two issues.”[38]
Those two remedies are also distinguishable regarding the procedural mechanism—to which authority you are supposed to apply. Regarding disqualification, “any party may apply to the Presiding Judge of a Chamber for disqualification and withdrawal of a Judge of that Chamber from trial or appeal upon the above grounds.”[39] As for the administrative remedy, it was held in the Čelebići Decision that:
In case of doubt or dispute on the question whether a Judge meets the requirements at issue … it is for the President to seek to resolve the matter in conference with the Judge. Either at the request of the Judge concerned or proprio motu, the President may submit the question to the plenary assembly of the Judges, which, in the exercise of its administrative functions, passes on the matter.[40]
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[1] Amanda Pike, Cambodia: Pol Pot’s Shadow, International Reporting Project, Paul H. Nitze School of International Studies, 5 June 2009 (2002 Fellowship) available at http://internationalreportingproject.org/stories/view/cambodia-pol-pots-shadow.
[2] Id. This video also aired on PBS Frontline in 2002, PBS Frontline/World, October 2002, available at http://www.pbs.org/frontlineworld/stories/cambodia/index.html.
[3] James Welsh & Prak Chan Thul, Filmmaker: KR Judge Says He Accepted Cash, Cambodia Daily, 10 – 11 June 2006.
[4] Id.
[5] Case of NUON Chea et al., 0002/19-09-2007-ECCC/TC, IENG Sary’s Application to Disqualify Judge Nil Nonn due to His Purported Admission that He Has Accepted Bribes & Request for a Public Hearing or in the Alternative for Leave to Reply to Any Submissions Presented by Judge Nil Nonn in Response to this Application, 14 January 2011, para. 10.
[6] Id., para. 11.
[7] Id., para. 12.
[8] Michael Kirby, Tackling Judicial Corruption Globally, Living Ethics, St. James Ethics Centre, available at http://www.hcourt.gov.aulspeeches/kirbyjlkirbyLstjames.htm (last visited 15 February 2014).
[9] Case of NUON Chea et al., 0002/19-09-2007-ECCC/TC, IENG Sary’s Application to Disqualify Judge Nil Nonn due to His Purported Admission that He Has Accepted Bribes & Request for a Public Hearing or in the Alternative for Leave to Reply to Any Submissions Presented by Judge Nil Nonn in Response to this Application, 14 January 2011, para. 28.
[10] ECCC Internal Rule 34.
[11] Case of NUON Chea et al., 002-19-09-2007/ECC/TC, Decision on Ieng Sary’s Application to Disqualify Judge Nil Nonn and Related Requests, 28 January 2011, para. 6.
[12] Agreement between the United Nations and the Royal Government of Cambodia concerning the prosecution under Cambodian law of crimes committed during the period of Democratic Kampuchea, Phnom Penh, 6 June 2003, Article 3 (emphasis added).
[13] ECCC Code of Judicial Ethics, 5 Sept. 2008, Article 7: “While judges are free to participate in public debate on matters pertaining to legal subjects, the judiciary or the administration of justice, they shall not comment on pending cases and shall avoid expressing views which may undermine the standing and integrity of the ECCC.” ICC Code of Judicial Ethics, ICC-BD-02-01-05, Article 9: “While judges are free to participate in public debate on matters pertaining to legal subjects, the judiciary or the administration of justice, they shall not comment on pending cases and shall avoid expressing views which may undermine the standing and integrity of the Court.”
[14] Case of NUON Chea et al., 002/19-09-2007-ECCC/TC, Decision on IENG Sary’s Application to Disqualify Judge Nil Nonn and Related Requests, 28 January 2011, para. 17.
[15] Id., para. 8.
[16] Id., para. 9.
[17] Id., para. 17.
[18] Id., para. 11.
[19] Id., para. 9.
[20] See ECCC Website, Profile of Judge Ney Thol, available at http://www.eccc.gov.kh/en/persons/judge-ney-thol (last visited 9 February 2014).
[21] Judge Ney Thol’s Military Court had found convictions in the Trial of Cheam Chaney and Trial of Norodom Ranariddh which had been highly political, and even criticized by Amnesty International as “grossly unfair” and “keeping in trend of political cases.” See Amnesty International, Kingdom of Cambodia: Human Rights at stake, March 1998, at 3 discussed thoroughly in Case of NUON Chea et al., 002/19-09-2007-ECCC/OCIJ(PTC), (Nuon Chea’s) Urgent Application for Disqualification of Judge Ney Thol, 28 January 2008, paras. 29–36.
[22] Duch was arrested 10 May 1999—no trial was ever conducted before the RCAF Military Court until Duch was transferred to the jurisdiction of the ECCC in 2007. The indefinite detention of Duch at the RCAF was heavily criticized.
[23] ECCC Law Article 10. See also ECCC Agreement, Articles 3(3) and 3(4).
[24] ECCC Law Article 10; ECCC Agreement, Articles 3(3) and 3(4).
[25] See ICCPR, Article 14(1); European Convention on Human Rights,Article 6(1); the American Convention on Human Rights, Article 8(1); and the African Charter of Human and Peoples’ Rights, Article 7(1).
[26] Gonzalez del Rio v. Peru, Communication No. 263/1987, U.N. Doc. CCPR/C/46/D/263/1987, 28 October 1992.
[27] Case of NUON Chea et al., 002/19-09-2007-ECCC/OCIJ(PTC), (Nuon Chea’s) Urgent Application for Disqualification of Judge Ney Thol, 002-19/09-2007-ECCC-PTC, 28 January 2008.
[28] Id., para. 12.
[29] Furundžija Appeal Decision, para. 189.
[30] Case of NUON Chea et al., 002/19-09-2007-ECCC/OCIJ(PTC), (Nuon Chea’s) Urgent Application for Disqualification of Judge Ney Thol, 002-19/09-2007-ECCC-PTC, 28 January 2008, para. 24.
[31] Report of the International Federation of Human Rights, Threats to Freedom of Expression and Association in Cambodia, 2 February 2006, at 10. Report of the Secretary General on Khmer Rouge Trials, A/57/769, 31 March 2003, paras. 28–29; Open Letter to the UN Secretary General from the Asian Human Rights Commission, Cambodia: Khmer-Rouge Trial—A request to advance judicial independence in Cambodia, 26 May 2006.
[32] Case of NUON Chea et al., 002/19-09-2007-ECCC/OCIJ(PTC), Public Decision on the Co-Lawyer’s Urgent Application for Disqualification of Judge Ney Thol Pending the Appeal Against the Provisional Detention Order in the Case of Nuon Chea, 4 February 2008, para. 27.
[33] Id., paras. 24, 26.
[34] Id., para. 28.
[35] Id.,
[36] ICTY Statute, Article 13.
[37] Id., para. 7.
[38] Prosecutor v. Delalić et al., IT-96-21-T, Decision of the Bureau on Motion to Disqualify Judges Pursuant to Rule 15 or in the Alternative that Certain Judges Recuse Themselves, 25 October 1999, paras. 6–10 (“Čelebići Decision”).
[39] ICTY Rules of Procedure and Evidence, Rule 15(B)(i).
[40] Čelebići Decision, para. 7 (emphasis in original).
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