The Kuala Lumpur War Crimes Tribunal Hearing on Palestine, Sabra and Shatila culminated in what seemed like a mockery when it only lasted from the Aug 21-22, 2013, falling short of its scheduled ending Aug 24, 2013. Grossly deviating from its core objective of hearing two charges on war crimes, the Kuala Lumpur War Crimes Tribunal (KLWCT) spent its entire two days resolving a dispute over apparent judicial biases.

A tribunal being an institution with the authority to judge and adjudicate matters of dispute, commonly differ from normal courts on the basis of jurisdiction, formality and function. For maximal efficacy in terms of binding judgments and verdicts, international tribunals are usually constituted under international law, such as the International Criminal Tribunal for Rwanda.

Founded and currently chaired by Dr Mahathir, the KLWCT was primarily established to criminalise war and energise peace. This tribunal has, however, inked its own charter of rules of procedure and evidence and a charter of the Commission itself. Hence, all outcomes of this tribunal would only succumb to legal effects within this institution and nothing more, not even in the Malaysian Legal System. Such tribunals are only ‘show’ tribunals, akin a “toothless tiger”.

Previously, this foundation had conducted two tribunal hearings, the first from Nov 19-21, 2011 and second, from May 7-12, 2012, under which the tribunal unanimously found British Prime Minister Tony Blair, US President George W Bush and other top US officials guilty of committing crimes against humanity in Iraq and Palestine. These acts which were not justified by any military or civilian necessity included the murders of prisoners of war, the ill-treatment and deportation of civilian residents of occupied territory to slave labour camps and the destruction of cities, towns and villages.

For this third sitting, the tribunal was to hear on the armed conflict in the state of Israel, where 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 Israel for committing genocide and war crimes. This on-going struggle between Israelis and Palestinians dates back to the mid-20th century and key elements that are in dispute are over mutual recognition on borders, security, water rights, the control of Jerusalem, over Israeli settlements, over the Palestinian freedom of movement and on the predicament of inherent refugees.

The tribunal started on Aug 21, 2013 with Deputy Prosecutor Professor Francis Boyle, filing an application, seeking Judge Eric David to recuse himself or step down from the panel of seven judges for reasons that he had links with Israeli’s Institute for Intelligence and Special Operations, generally known as ‘Mossad’. Prof Boyle’s application was made on the grounds of a legal opinion written by Judge David last year, in which he suggested that the People’s Mujahedin of Iran (PMOI), a movement listed by the United States of America as a terrorist organisation, was purportedly supported and funded by the Mossad. Prof Boyle claimed that such views depicted the implicit biases of Judge David and therefore, his opinions and thoughts were not impartial.

Prof Gurdial Singh Nijar repeatedly quoted Gordon Hewart, “not only must Justice be done, it must also be seen to be done”. This fundamental principle is the bedrock of judicial sanctity, as the slightest doubt cast on the capability of the judge to decide on a case impartially would cause lay men and witnesses to lose confidence in the judge, and hence in the system, which would then hinder the cause of justice. On this point alone, the Prosecution team, which portrayed the highest standards of legal principles, remained adamant that the trial should not proceed, should Judge David refuse to recuse himself.

In the UK case of Re Pinochet [1998], where the hearing was on the extradition of Senator Augusto Pinochet, Lord Hoffman from the House of Lords was asked to recuse himself from the panel of judges as he was a non-executive director of Amnesty International. Lord Browne-Wilkinson held that it was a fundamental principle that a man must not be a judge in his own cause. Since Lord Hoffman was closely associated with one of the parties, he was therefore disqualified from hearing the case whether or not there was any actual bias or appearance of bias. Drawing an analogy from the case of Re Pinochet, one can rationally deduce that it is on principle that a judge should recuse himself from the Bench, even at the slightest proof that he had ties with the party being judged.

After much adjournments and heated exchanges, the Bench finally reached its decision and Chief Justice Lamin Mohd Yunus who represented the Bench, dismissed the application on grounds that the allegation was baseless and was not supported by substantial evidence.

The second day of the hearing started unceremoniously with the reading of a witness statement by Dr Walid Elkhatib. In short, Dr Walid stated that on behalf of all the other Palestinian witnesses who were present, he was gravely dissatisfied with the proceedings of the tribunal and felt that they had no right to be made to feel as if their safety was being compromised as they were not being given a fair trial. With that, he sadly conveyed his regret that all the witnesses thereby refuse to testify in the proceedings of the tribunal.

Thereupon, the Prosecution team called for the trial to be adjourned sine die, meaning indefinitely. The Bench then gave its verdict, calling the tribunal to be adjourned sine die due to the deadlock between the judges and the Prosecution team. Judge Salleh Buang who read the judgment held that there was a serious breach of conduct of the prosecution team. He further added that the witnesses had given an improper ultimatum to the tribunal and that the Prosecution was committed to bring the proceedings to an end.

It was unfortunate that the tribunal had to fall short of its scheduled ending, let alone the fact that it did not even hear its case. However, had the selection of judges been less controversial or had it been made public a reasonable time before the hearing, it would allow any objections to the selection to be made in the preliminary rounds. This would save much cost, time and spare the tribunal of mockery. After all, “Justice delayed, is Justice denied”.