Tribunal Dismisses Prosecution’s Application to Recuse Judge Eric David.
KUALA LUMPUR, 21 August 2013 – The Kuala Lumpur War Crimes Tribunal, which commenced today to hear war crimes and genocide charges against the State of Israel and Amos Yaron, a retired Israeli army general hit a snag.
To begin with, the Prosecution made an application that, to preserve the sanctity of the tribunal, Judge Eric David be recused for his alleged possible connection with the Mossad, the intelligence agency of Israel.
There have been allegations including from US officials that the Peoples Mujahedin Organisation of Iran (PMOI) is supported by Mossad. The PMOI is listed as a terrorist organisation that has carried out terrorist activities against Iran. According to the prosecution, Judge Eric David had written a legal opinion that the PMOI be removed from the list of terrorist organisations.
Amicus curiae Jason Kay appointed under Article 15 of the Charter, raised the point that the allegations were not supported by clear evidence. And that perceived bias does not amount to actual bias. The Prosecution further argued that there must not even be any perceived bias on the part of any judge of the tribunal in deciding a case.
The Tribunal adjourned the hearing to deliberate further and later returned dismissing the prosecution’s application to recuse Judge Eric David, as they felt there was no threat of real bias. However, the prosecution disagreed and the hearing was adjourned once again.
When the hearing resumed, the President of the Tribunal, Tan Sri Dato Lamin bin Haji Mohd Yunus Lamin, expressed the panel’s disquiet of the breakdown of the forum stressing that once an objection had been overruled, it should be accepted and respected. He instructed the registrar to expunge all the allegations levelled against Judge Eric David from the records.
In their response, the prosecution accepted the panel’s decision but conveyed the serious concerns of the witnesses who had come all the way from Palestine to have their day in court. The witnesses, through the Chief Prosecutor Prof Gurdial S Nijar made known their three points of concerns to the panel of judges.
One, the fact, that, they have come to the Tribunal seeking justice after literally years of being unheard. They have come for justice and are prepared for any decision but in the present situation, they are not comfortable to appear before a judge that may be biased. They want the process of obtaining justice untainted in any way. Otherwise, in their view, it would be worthless. Secondly, they fear for their personal security in having come all the way to Kuala Lumpur to testify and thirdly, it is a matter of principle to them and if they lack confidence in the panel of judges, they would essentially be insecure and thus unable to tend evidence. As such, the Prosecution recommended that the hearing be adjourned Sine Die (indefinitely).