ECCC Allows Ieng Sary Detention, Punts on ‘Double Jeopardy’

The Khmer Rouge tribunal on Friday upheld the pretrial detention of former Khmer Rouge Foreign Minister Ieng Sary but declined to decide whether he is now facing trial for the second time for the same alleged crimes.

As a result, Ieng Sary’s 1979 genocide conviction and death sentence before a Vietnamese-backed tribunal may again be debated during his continuing investigation and possibly even at trial.

In a decision announced at a brief Pre-Trial Chamber hearing, the five-judge panel also ruled that Ieng Sary’s 1996 royal pardon and amnesty, granted as part of the government’s peacemaking efforts at the close of the civil war, do not apply to the crimes for which he may be tried and may be partially invalid as well.

Substantial evidence indicates Ieng Sary may be responsible for the crimes with which he is charged though there is no evidence that if released he could seek to tamper with witnesses, the judges also found.

Arrested 11 months ago at his Phnom Penh villa, Ieng Sary, who is to turn 83 on Oct 24, was detained and charged by the court’s co-investigating judges with war crimes and crimes against humanity.

Negotiations over the creation of the Khmer Rouge tribunal neared collapse in 2002 after UN officials insisted that Ieng Sary’s pardon not be a bar to his prosecution. Observers have long anticipated that both the 1979 trial and the pardon and amnesty would add substantial complexity to any subsequent trial.

At a week of pretrial hearings in June and July, the defense argued that the either the 1979 trial and conviction, the 1996 pardon, or both, should prevent a new trial. They also contended that Ieng Sary’s detention was unjustified, and that he should be confined to a hospital in view of his deteriorating health.

In the decision handed down Friday, the judges said the co-investigating judges had framed the current charges against Ieng Sary in a manner “too vague” to allow the Chamber to say whether Ieng Sary is now being prosecuted for the same acts that gave rise to his 1979 genocide conviction.

“To specify such acts at the commencement of the investigation by the co-investigating judges is not possible or proper,” said Pre-Trial Chamber President Prak Kimsan, reading from a summary of the decision which noted that for this reason the defense may continue to challenge Ieng Sary’s prosecution on so-called “double jeopardy” grounds.

The decision also found that a pardon against a death sentence may be invalid if it is issued after the death penalty had already been abolished—Cambodia did away with capital punishment in 1989.

The judges also found that Ieng Sary’s amnesty concerns only a 1994 law that banned the Khmer Rouge movement, specifically calling for the punishment of members that had committed crimes including willful murder, rape, robbery and armed insurgency, none of which, they said, falls within the tribunal’s jurisdiction.

Both the pardon and amnesty appear to contradict Article 27 of the Constitution, they added, without explaining why this is the case.

A redacted version of the decision which was made public following the hearing also found that evidence collected by judicial investigators showed that Ieng Sary was included in Communist Party decision making, that over 100 S-21 detainees had been arrested at the foreign ministry which was under his control, that he was aware of the detention center’s forced confessions, and also supported the purge of party cadres.

The ruling found there was no evidence that Ieng Sary requires long-term hospitalization.


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