By Aileen Thomson
Allegations of corruption and bias are not new to the Extraordinary Chambers in the Courts of Cambodia (ECCC), the
hybrid international criminal court established to try former members of the Khmer Rouge. However, such allegations have traditionally involved Cambodian members of the court. This trend changed in mid-October 2009, when defense lawyers for one of the four defendants before the ECCC filed motions to have the international Co-Investigating Judge, Marcel Lemonde, removed from the case on accusations of bias.
Lemonde is one of two judges who have an obligation to investigate the charges that the prosecutors bring to the ECCC and then decide if there is enough evidence to go forward with the case. The Co-Investigating Judges are required to remain impartial during the investigation process. This neutrality is crucial, as the defense is not permitted to conduct its own investigations, and the prosecution cannot investigate after its initial submissions.
The current accusations of bias have arisen in Case 002, the second case to come before the ECCC. Recently, Judge Lemonde has summoned six high-ranking members of the current Cambodian government, including the presidents of the Senate and National Assembly, to testify as witnesses in Case 002, a move which has incited criticism from Prime Minister Hun Sen.
These allegations arose from Wayne Bastin’s, a former chief of the Intelligence and Analysis Unit of the Office of the Co-Investigating Judges, sworn statement that during a meeting at Lemonde’s home, Lemonde stated his preference that investigators “find more inculpatory evidence than exculpatory evidence” in the pending case against the former Khmer Rouge leaders.
Lawyers for the defendant Ieng Sary have filed a motion for Lemonde to be removed from the case, and lawyers for defendant Khieu Samphan said they also would file a similar motion. These motions will then go to the Pre-Trial Chamber for consideration. Lars Olsen, spokesperson for the ECCC, said that Lemonde “does not wish to comment on the allegations,” but would “provide the Pre-Trial Chamber with all necessary information.” In order to remove the judge, the defense would have to prove there is a “systemic bias” in favor of the prosecution; one possibly biased comment alone would not suffice.
If Lemonde is removed, his previous investigative work would still remain valid under the court’s internal rules. The reserve international Co-Investigating Judge, Siegfried Blunk, would take this case if Lemonde were to be removed. If the allegations are proven true and the Pre-Trial Chamber decides that Lemonde should be removed from the case, the legitimacy of the ECCC will be damaged at a time when it is already struggling with funding, concerns about victim participation, and corruption allegations.