Kuala Lumpur War Crimes Tribunal on Palestine: Judicial Biasness Sabah Carrim A War Crimes Tribunal, serving as the

judicial arm of the Kuala Lumpur War Crimes Commission (KLWCC)i was set up recently to try crimes committed by Israeli forces in 1982 in Israeli-occupied Lebanon refugee camps of Sabra and Shatila. The tribunal sessions were scheduled to be held between 21-24 August 2013. Prior to this, a commission enquiry had been organized in November 2012 to ascertain whether there was a prima facie case for the prosecution. Several victims of the atrocities committed in the aforementioned regions flew down to the country to present their testimony. The Chief Prosecutor of the Commission, Professor Gurdial Singh Nijar, filed two charges: The first was against Amos Yaron for committing war crimes, crimes against humanity and genocide and the second was against the State of Israel for committing genocide and war crimes. Rather unexpectedly, the tribunal proceedings took a new turn on the first day when the prosecution team made an application to the Bench to have Judge Eric David removed from the panel of seven judges. It was contended that Judge Eric David had shown support for Israels Institute for Intelligence and Special Operations known as Mossad. It was inferred that in a legal opinion rendered by him, he had claimed that the Peoples Mujahideen Organization of Iran (PMOI) was not a terrorist organization, despite the fact that documentary evidence existed to the contrary. The prosecution went on to suggest that PMOI had strong links with Mossad, thereby concluding that Judge Eric David was linked with the persecution of Palestinians. The following statement was made by Professor Francis Boyle, member of the prosecution team: It is also a matter of public records in the US, as documented in the New York Times and Wall Street Journal that the Israeli government and its agencies and supporters have gone all over the world to procure the support of public people and figures such as Judge David to support their terrorist organization and to get their terrorist organization removed by the list maintained by the EU and the US government, so that they can bring about the downfall of the government of Iran. Israel, and its supporters and its organizations and the other groups are all in cahoots with each other to overthrow the government of Iran.ii The Bench adjourned several times to discuss the matter both in chambers and in open court but to no avail a compromise could not be reached. On the second day of the proceedings, that is on 22nd August 2013 were suspended sine die. Due to the uncertain nature of the tribunal that was not exactly tied to any particular jurisdiction, various authorities were drawn from Australian and English precedents among others: counsels who took their individual stands on the issue of judicial biasness. The author of this paper wishes to analyse the matter from the perspective primarily of English authorities and of commentaries drawn from the works of Hannah Arendt, an expert in political science who attended the trial of Adolf Eichmann in 1962. It is also hoped that this paper will provide a journalistic account of the proceedings of the tribunal as hitherto, reports published online are scant. Certain preliminary questions must first be asked: 1. What is the value of the judgment rendered by this tribunal? According to the Charter of the Kuala Lumpur War Crimes Commission, Art 31 states that: As a tribunal of conscience, a verdict of the Tribunal shall be merely declaratory of the law. The Tribunal may recommend to the Commission to 1

submit its finding to the International Criminal Court or any other international organization for further action. In other words, the value of this judgment can be summarized as being two-fold: i) The final verdict has no practical value in itself: the judgment could merely be used as a persuasive point to convince another court which is more widely recognized, such as International Criminal Court to investigate the matter further; and ii) It can be hoped by the organizers and other stakeholders involved, that the dissemination of the judgment via media channels could possibly incite concrete action plans to provide relief for the struggles of the Palestinians. During the tribunal sessions, I was interested in finding out whether the victims of the crimes and atrocities who had eagerly come all the way to testify knew about the truth of this sterile verdict. I was saddened to find out that most of them had a basic knowledge of the legitimacy and validity of this trial: they were not aware that this tribunal was merely, if at all, a stepping stone to a second trial. I believe that in order to preserve the nobility of the objectives of the Kuala Lumpur War Crimes Foundation, more effort should be put in to lay this bare truth out to victims before they decide to testify in such trials. It would only add insult to injury if after what they have been through, the victims who attend the trial with the hope of effective justice, merely return to their homes with a sterile verdict. 2. Judicial biasness the standpoint of English Courts. The famous dictum of Lord Hewart on the subject of judicial biasness is of fundamental importance here: Justice must not only be done but should manifestly and undoubtedly be seen to be done.iii In simple terms, this means that it is not sufficient to inform the public that justice will be done; instead their view of justice must coincide exactly with their perception of it. If their perception, which is dependent on subjective factors, is even slightly distorted, then justice is not done. In other words, an iota of doubt about the integrity of a judge is sufficient to constitute an erosion of the aforementioned principle. Another maxim, Nemo judex in causa sua translated as Nobody can be a judge in his own cause summarizes the type of judge that is required in an impartial and fair trial. The Culprit-judge involved in the Kuala Lumpur War Crimes Tribunal.

3.

The KLWC Fact Book states that: Judge Eric David is the Professor and President of the Centre of International Law at the Free University of Brussels, also president of the Advisory Commission on International Humanitarian Law of the Belgian Red Cross, among others. He was also counsel for various states at the International Court of Justice and the International Criminal Tribunal for Rwanda.iv Counsel for the defence, namely Ms Larissa Jane from Australia, used an Australian authority to lay down the test for biasness: According to Ebner v Official Trustee in Bankruptcyv, there were to be two steps: 1. The identification of what it is said might lead a judgeto decide a case other than on its legal and factual merits and 2. An articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits.

Counsel for the defence concluded that in view of the first thread, the material produced by the prosecution team to show the link between Judge Eric David, Mossad and other terrorist organizations was by itself of a mysterious nature. This was done by suggesting that it was published in a tabloid-type newspaper.vi In rebuttal, Professor Nijar reiterated the importance of an impartial tribunal and said that there must not even be a single blot on the integrity of this panel. Therefore, a remote link would suffice to justify a recusal. In a case that attracted worldwide attention, Hannah Arendt commented on a situation where Counsel for defence, Dr. Servatius impugned the impartiality of the judges. Arendt went on to say that: ...no Jew, in his opinion was qualified to sit in judgment on the implementers of the Final Solution, and the Presiding Judge had replied: We are professional judges, used and accustomed to weighing evidence brought before us and to doing our work in the public eye and subject to public criticism When a court sits in judgment, the judges who compose it are human beings, are flesh and blood with feelings and senses, but they are obliged by law to restrain those feelings and senses. Otherwise, no judge could ever be found to try a criminal case where his abhorrence might be aroused it cannot be denied that the memory of the Nazi holocaust stirs every Jew, but while this case is being tried before us, it will be our duty to restrain those feelings, and this duty we shall honour.vii In this case which took place in 1962, the defendant, Adolf Eichmann who was charged with some of the atrocities committed during the Second World War, had been kidnapped illegally from Argentina and flown to the State of Israel which was, it must be remembered, formed by Jews who had been persecuted by the Nazi regime. It was inevitable then for Dr Servatius, as Counsel for the defence to raise the issue of the Judges biasness. Yet the proceedings were conducted normally and the verdict rendered cost Adolf Eichmann his life. It is important here to highlight that the issue of biasness of a judge can turn into a protracted debate, especially when there are issues such as the subconscious responses of a judge in the picture, or the influences of the environment which are not within his control, or still the opinions or views he may have held at various points in his life. In the end it is really difficult to draw the line between when a Judge should be deemed to be biased and when not. The Presiding Judge in the case of Eichmann was clear that in a professional capacity, a judge has to shelve his prejudices and restrain those feelings and senses and tune himself into thi nking in as far as possible, an unbiased and fair manner towards both parties involved in the trial. To consider giving Judge Eric David the benefit of the doubt is also important at this juncture: One must remember that Judge Eric David made that statement about the terrorist organization based on the evidence he had at hand and at a particular point in his career when it may be that the totality of evidence he had against the terrorist organization did not meet the standard of proof required in that case. Whatever the case may be, the approach of the English courts on the issue of biasness can be deduced from the cases mentioned below:

The law was settled on the subject of judicial biasness in the House of Lords case in R v Gough (1993) and the relevant test was whether there was in relation to any given judge a real danger or possibility of bias. The real danger test depends on whether the judge knew of the matter relied on as appearing to undermine his impartiality. It was for the reviewing court, not the judge concerned to assess the risk that some illegitimate extraneous consideration might have influenced his decision. If this test were applied, it would be clear that the Bench would have a final say on the matter and the proceedings would have to resume normally. However, the law in this area changed after a few years and moved on to the fair minded observer test. The test for biasness was for a long time, limited to revealing that the judge in question had either a proprietary and/or pecuniary interest in the matter. This however changed in the case of R v Bow Street 3

Metropolitan Stipendiary Magistrate and Others, ex parte Pinochet Ugarteviii: the accused Pinochet former head of state of Chile was arrested under extradition warrants issued by a Spanish court alleging various crimes against humanity. Pinochet was then on visit in England for medical treatment. In the trial, Pinochet claimed diplomatic immunity to have the warrants against him quashed and this was rejected by the House of Lords by a 3:2 majority. Pinochets lawyers however found out that Lord Hoffman, one of the judges on the panel, was an unpaid director and chairman of Amnesty International Charity Ltd whose main objective was to target perpetrators of crime such as Augusto Pinochet himself. At that point in time, Lord Hoffmann had neither withdrawn from the case not declared his interest in Amnesty International. Pinochet managed to set aside the ruling by the House of Lords on grounds of apparent bias on the part of Lord Hoffmann. Lord Browne-Wilkinson reiterated the cardinal principle in law that a man may not be a judge in his own cause. It was in the case of Pinochet that for the first time, the judges overlooked the fact of pecuniary and proprietary interest of a judge in the matter and chose to still rule that Lord Hoffman should recuse himself. Thus it would not have been necessary to prove a proprietary or pecuniary interest by Judge Eric David to warrant his recusal. Furthermore, in Howell v Lees Millaisix, Peter Smith J was criticized for not recusing himself in a matter where he was obviously biased. In this particular situation, the judge was involved previously in discussions with Addleshaw Goddard (AG) about the possibility of retiring from the bench and taking up a job with AG as a consultant. The discussions died down and the exchange went on between an employee of AG and the judge. The former then sent the latter an email saying that it was not possible to take the matter further. What ensued after this was an exchange of angry emails by Justice Peter Smith while the other side remained calm and apologetic throughout the correspondence. Barely a month later, the judge had to act in relation to a trust matter where AG had a direct interest. AG wrote to the judge referring to their earlier exchanges by email and asked the judge to recuse himself. The judge wrote back saying that there was no reasonable perception of judicial impartiality in this case and dismissed the application. Later on after a judgment was delivered, AG appealed and one of the points raised was the issue of biasness. The Court of Appeal decided unanimously that Justice Peter Smith was wrong not to have recused himself. The claimants had argued that this was a case of apparent bias. In both cases of Pinochet and Howell, the link between the judges and the matter at hand was obvious and could be established easily: in the first through the fact of Hoffmans link with Amnesty International and in the other through documentary evidence of the exchange of emails between the parties. In the current situation, there was no obvious proof produced of Judge Eric Davids suggested connection, whether proprietary, pecuniary or otherwise with the terrorist organizations except of course for evidence which the defence counsel had a point in calling mysterious. Thus in applying the test for biasness, Judge Eric David would still have to be retained. The test moved from being a subjective one to an objective one in Re Medicaments (2001), a case decided in the ECtHR where it was as follows: whether a fair minded observer(my emphasis) would conclude that there was a real possibility of bias. They relied on Re Medicaments and Related Class of Goodsx where Lord Phillips said: The court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased. It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility, or real danger, the two being the same, that the tribunal was biased.xi This was further approved in the HOL case of Proter v Magill (2001). In Lawal v Northern Spirit Ltd (2003), the House of Lords stated that public perception of the possibility of unconscious bias is the key and said that such a person would adopt a balanced approach neither complacent nor unduly sensitive or 4

suspicious. In line with these authorities, Professor Francis Boyle introduced the public element involved in this test and applied it to the case at hand: The prosecution does not believe he can (be objective). The question is, the public, do they believe Judge David? When he is in cahoots with the Israeli terrorist organization and Mossad. And the answer is literally no. Justice must not only be done but be seen to be done.xii Similarly the judges applied this approach when it was stated in their judgment that: The application to have Judge Eric David ousted was rejected: After careful consideration of the application of and supporting material under learned arguments from both sides, the tribunal is unanimously of the agreement that a fair minded and informed observer will not hamper ability and commitment to hear this trial. It is obvious that the test applied by both the prosecution and the panel of Judges was similar. The result, as predicted of subjective tests of this type, were however dissimilar. Who is meant to have the last say in the matter? Evidently, the panel of judges. The technique used by the prosecution to nullify the effect of this judicial decision was by requesting for the trial to be adjourned sine die. 4. Can there be biasness because of a legal opinion previously delivered? Judge Webre interrupted the ongoing debate between the President of the Bench, Judge Lamin and the Prosecution by averring that Judge Eric David was not aware of the connection between the Israeli agency and the PMOI at the time he was approached to write the legal opinion. To this Professor Boyle interjected saying that every professor of international law such as himself and Judge Eric David knew the existing links between Mossad, PMOI and the Israeli persecutors. Let us analyse what the law says about using the legal opinions rendered by judges to reveal their biasness: According to Gary Slapper and David Kellyxiii: Nonetheless, the court could not conceive of circumstances in which an objection could be soundly based on religion, ethnic or national origin, gender, age, class, means or sexual orientation of the judge. Nor, at any rate ordinarily, could an objection be soundly based on his social, educational, service or employment associations, membership of social, sporting or charitable bodies; nor masonic associations; nor previous decision; nor extracurricular utterances, whether in textbooks, lectures, speeches, articles, interviews, reports or responses to consultation papers; not previous receipt of instructions to act for or against any party, solicitor or advocate engaged in a case before him; nor membership of the same Inn, circuit, local Law Society or chambers. The above paragraph includes the mention of nor previous decision which implies that Judge Eric David could not be held to be biased based on the opinion rendered in the past. Moreover, another member of the Bench, Judge Alfred Lambemont Webre said that: Eric David is a key member of the legal team of the Russell Tribunal on Palestine and that in fact over 80% of the opinions and verdicts of the 5 sessions of the Russell Tribunal on Palestine from 2010-2013 were the direct result of Judge David

However, as Professor Nijar stated in his submissions, the Kuala Lumpur War Crimes Tribunal was a tribunal of conscience and it was necessary to do away with hard and fast rules of evidence and procedure. The objection to having Judge Eric David on the panel was not connected to a pecuniary or proprietary interest as in the above English cases, but to the actual interest of human beings who had been traumatized irreversibly at the hands of the Israeli forces. If the witnesses were not comfortable about appearing before the tribunal because of the possibility of a threat to their lives, it is my humble opinion that it was the duty of the Bench to do the needful. 5. Other Culprit Judges During the trial, after information was leaked to the prosecution team about Judge Eric Davids portfolio, other notable members who were present among the public began enquiring into the background of another Judge whose involvement with the FBI and CIA among others did not in their opinion, make him eligible to sit on the Bench. The KLWC Fact Book says that Judge Michael Hourigan is a graduate of University of Adelaide and a known Human Rights lawyer. He served the United Nations and more importantly the FBI, CIA and Scotland Yard. In several interviews Professor Boyle suggested that these organizations were the very ones that were connected to the atrocities perpetuated by the Israeli forces in Palestine and having Judge Hourigan on the Bench would compromise the fairness and impartiality of that tribunal. One of the measures adopted by jurisdictions that are sincere about avoiding judicial biasness is to secure the independence of the judiciary. This can be achieved by insulating the judiciary from possible external effects and influences. So for example, the appointment of judges, payment of their salary, removal of judges are made as transparent as possible. Moreover as far as possible, these tasks are carried out by independent bodies that are not directly involved with the other state organs. Thus the true meaning and purport of selecting impartial judges would be marred if they happen to have a hand in the funding, administration and management of the trial or in the organizations that work in tandem with it. In the interests of conformity to principles of judicial independence, a close analysis of the list of commissioners, organizers, managers of the Kuala Lumpur War Crimes Tribunal, together with the list of judges sitting on the panel is undoubtedly troubling. Moreover other imputations were made by the public about the presence of another judge on the Bench who was the spouse of one of the active members and organizers of the Kuala Lumpur Foundation to Criminalize War (KLFCW). The law clearly looks upon a judge as having two separate lives: one in his professional capacity when he is sitting in a judicial capacity, and the second as an individual who, as any other ordinary human being, is the inheritor of those rights which are natural to Man. This can be deduced from the statement quoted from Slapper and Kelly above and the following statement made in the case of Timmins v Gormley (2000): There can be no objection to a judge on the grounds of ethnic or national origin, religion, gender, class or sexual orientation. Nor can there be objection on the grounds of social, educational or employment background, or that of his family or membership of bodies such as the Freemasons. Thus even if a judge holds rather unpopular and iconoclastic beliefs that may sound eerie to most, it is entirely his right to do so and his judicial acuity cannot be questioned. From the precedents above, yet another judge on the panel of the KL War Crimes Tribunal on Palestine would be spared from possible attack: Judge Alfred Lambemont Webre. The KLFCW Fact Book states that Alfred Lambemont Webre was a graduate of Yale University, and goes on to mention his achievements in a similar fashion as the description of the other judges on the Bench. What is however not mentioned in that he is a firm believer of lurid stories about extra-terrestrial life on Earth, claiming that some of the aliens whom he has divided into four classes, have been working with the US 6

administration even before the Presidency of George Bush Sr.. He also endorses the conspiracy theory that President Obamas birth certificate is fake and that the latters real identity matches with that of a person by the name of Barry Sotero. Judge Webre goes on to make strange statements on his website about Obama being nearly devoured by the species of Carnivorous Plesiosaurs on Mars.xiv Many objections were made about his presence on a Peoples tribunal set up in Vancouver on the 9/11 attacks because Judge Webre had the intention of voicing his opinion about the real actors behind the 9/11 attacks: this would tie up a series of famous conspiracy theories that would rope in his aliens into the tale. It is even believed that Judge Webre was purposely admitted in those tribunals by 9/11 cover up teams to ridicule the whole proceedings and weaken the legitimacy of the final verdicts delivered.xv Strictly in accordance with the authorities stated above rather ironically, we are not supposed to question Judge Webres acuity and the level of professionalism he can display in conducting this trial in a fair, unbiased and impartial manner.

4. Were the fears of the witnesses legitimate? In some of the statements made by the Bench, it was suggested that the Prosecution team had instigated the Witnesses into refusing to testify for fear of repercussions due to Judge Eric Davids presence on the Bench. Since we will never know whether this really happened, we can only go on to assess the veracity of the witness concerns. Was there a legitimate reason to fear or even a reason for a justifiable perception of fear of reprisals? In a final statement during the proceedings, Professor Nijar said: 1) They (the witnesses) came here for justice. They have waited a long time for justice. The first witness, her statement has been declared in the KL War Crimes commission relates back to 1948, where she and her family were dislocated from the banks in Palestine. So she was also the victim for Sabra and Shatila in 1992, where she had to walk over the dead bodies of her husband, her sons, daughters, uncles at gun pointIf theres disquiet by the bench, there is more disquiet by this victim 2) They fear for their personal security Professor Nijar then went on to mention an incident where the son of the head of the Palestinian National Authority, Dr Walid who testified at the KL War Crime Commission, was abducted at the time the father was giving his testimony in Kuala Lumpur, saying: That is the reality they have to face and it is their perception that is more important than our rulings.xvi Here is a reproduction of some of the statements made by the witnesses contained in the bindings prepared by the Prosecutor Francis Boylexvii: Chahira who broke down while giving testimony said, In the evening beginning from about 5pm, flares were thrown to light up the area. This went on throughout the night. The camp was full of light throughout the night. We did not know what was happening outside. We heard shooting and screaming outside. At about dusk, my sister ran out into the street to see what was happening. She was shot dead by armed militia. When my sister was shot, she shouted for my father. My father came out of the house to see what had happened to my sister. He was also shot and killed. Their bodies were left on the street. Later I found out that those who shot my sister and father were Lebanese Phalangist militia. In the early hours of the morning, about 16-17 armed soldiers entered her home and shot her husband, brother and cousin dead in front of her and children. She related that militia entered homes and shot at everyone including children and animals. She said, Along the way to the stadium, I saw my cousins daughter who was pregnant lying dead. The murderers had opened her body and taken out her baby and put the baby on her. The child was dead as well. She was lying on the street. Along the streets there were a lot of dead bodies. Hundreds of 7

bodies were strewn all over. We climbed a hill to the stadium. At the nearest houses I could see bodies of children. Between the houses, which had been half destroyed, there were bodies of men, and also women and children and animals. She testified, In 36 hours, up to 3500 to 5,000 people from Shatila and Sabra had been massacred, There are also people unaccounted for who had disappeared. The Phalangist militia worked together with the Israelis. They were known to be puppets for Israeli forces. Israelis used them to go into our houses, because these soldiers knew the place, and could speak Lebanese. The Israelis were afraid to go in themselves. She concluded: What I want is justice to be done and that those who killed my family members and all the people at Shatila and Sabra to be punished for their crimes. There was an attempt by Professor Nijar to express the extent of emotional and psychological turpitude that the witnesses had experienced, and were experiencing at the hands of the Israeli forces so that there was a real and imaginable fear of possible torture and persecution when they returned to their homes. This message however failed to convince the Bench of the need to accommodate the wishes of the witnesses. Judge Eric David was held back on the Bench although it is said that he had made a wish to be recused while the discussion was going on in chambers.

5. The Tribunal in KL should have considered: Either 1. Setting up an altogether independent or ancillary tribunal, to assess the matter regarding a real danger of biasness on the part of Eric David. Of course this would have unduly prolonged the ongoing proceedings. Or 2. Carrying on with six judges instead of seven: Article 6(5) of the Charter of the KLWCC states: A quorum of five Judges shall suffice to constitute the Tribunal in the event that the President is indisposed or unable to discharge his duties, the judges shall elect from among themselves an Acting President. To reiterate this point, during the proceedings Professor Nijar stated: It is not, like if Judge David recuses himself that the panel is crippled... We have six other eminent judges.xviii 6. Conclusion The witnesses absconded from testifying and in their statement, Dr. Walid, on their behalf, stated: We saw yesterday the inappropriate and condescending tone of address to the prosecution who are a group of well-known and respected lawyers. So we fear that we might suffer the same treatment or even worse We are victims with the evidence of tortures, insults and violations of human rights in all fields. Not to mention the massacres that we have faced in Palestine and Lebanon. Thus we have no right to expose ourselves or our people to more insults.xix In the end, the Bench was adamant about abiding by its decision; the prosecutors were unhappy with the state of affairs; the witnesses refused to testify although they had taken great pains to find their way safely out to Malaysia for the proceedings; and due to the deadlock, the trial was adjourned sine die.

See Article 6(1) of the Charter of the Kuala Lumpur War Crimes Commission Notes of Proceedings, 5 iii R v Sussex Justices ex p McCarthy (1924) 1 KB 256, [1923] All ER Rep 233 iv Kuala Lumpur Foundation to Criminalize War Fact Book v [2000] HCA 63, (2000) 205 C.L.R. 337
ii

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Notes of Proceedings, 9. H Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil (3 rd edn Penguin, New York 2006) 208-209 viii (No 2) (1999) 2 WLR 272 ix (2007) EWCA Civ 720, (2007) All ER (D) 64 (Jul) x ( No 2) (2000) All ER (D) 2525, (2001) 1 WLR 700 xi L Flannery, Judges in the Dock (2007) 157 NLJ 1097 xii Notes of Proceedings, 9 xiii G Slapper and S Kelly,The English Legal System (10th edn Routledge-Cavendish, Oxford 2009) 209 xiv Veterans Today, Now it can be told! The real reason Obama was nearly devoured by a Carnivorous Plesiosaurs http://www.veteranstoday.com/2012/10/01/now-it-can-be-told-the-real-reason-obama-was-nearly-devoured-by-carnivorousplesiosaurs-on-mars/ accessed 10 September 2013 xv Ibid. xvi Notes of Proceedings, 20 xvii Francis A. Boyle, Amos Yaron charged for genocide at Sabra and Shatilla. http://www.countercurrents.org/boyle300813A.htm accessed 1 September 2013 xviii See Article 6(2) and 6(5) of the Charter of the Kuala Lumpur War Crimes Commission xix Notes of Proceedings, 30-31
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