Arguments at the Khmer Rouge tribunal turned Tuesday to whether the court is able to try Ieng Sary, given that a Cambodian tribunal had previously convicted the former Khmer Rouge foreign minister nearly 30 years ago.
Lawyers for the 82-year-old defendant said his prosecution for war crimes and crimes against humanity would put him in double jeopardy—that is, tried for the same offense twice, which is not permitted under Cambodian law.
In 1979, following the toppling of the Khmer Rouge regime, a hastily held Phnom Penh tribunal convicted Ieng Sary in absentia of genocide for his role in the Democratic Kampuchea regime and sentenced him to death.
In return for defecting to the government, Ieng Sary was in 1996 granted a royal pardon for the 1979 conviction and also an amnesty against prosecution under a law forbidding membership in the Khmer Rouge.
Attorneys addressed the issue Tuesday in front of the court’s Pre-Trial Chamber during the second day of a hearing appealing the defendant’s detention ahead of trial.
Complaining of dizziness, Ieng Sary had withdrawn from the courtroom early Monday while his lawyers argued that he might be too frail to stand trial. But the former Khmer Rouge leader remained in the courtroom for the duration of oral arguments Tuesday.
Defense lawyer Michael Karnavas accused the prosecution of trying to deny the Cambodian nature of the Extraordinary Chambers in the Courts of Cambodia.
“Double jeopardy is without exception under Cambodian law. There are no exceptions to it,” Karnavas told the court, adding that the principle could not be circumvented through references to international law.
“What is the nature of this institution? Is it Cambodian? Or is it international? Has Cambodia given up its jurisdiction?” Karnavas asked. “You cannot simply say we like international law better. We think it’s more progressive,” he added.
Prosecutors argued that, under both Cambodian and international law, the 1979 People’s Revolutionary Tribunal, which was concluded in just five days, was so unfair that its verdict against Ieng Sary can be discounted.
“In these proceedings Mr Ieng Sary was presumed guilty, tried and convicted in his absence [in] only five days for criminal offenses spanning the whole country over three years,” Deputy Co-Prosecutor William Smith said. “So many standards for a fair trial were infringed it is difficult to find any one that was upheld,” he said.
The prosecution also noted that while Cambodian legal procedures are in force at the ECCC, under the 2003 agreement with the UN, international standards and practices are in force at the court.
Karnavas conceded that Ieng Sary’s first trial had been less than ideal.
“I’m not going to stand here and say that that was a model trial,” he told the court, noting however that legal recognition had been granted to controversial US military commissions established for detainees at Guantanamo Bay.
“We must accept that a sentence was passed,” he said.
Smith countered that the principle of double jeopardy did not apply to Ieng Sary as he had not suffered from his 1979 trial, which was manifestly unfair.
“Applying the double jeopardy principle in this situation cures no injustice, which the principle was created to prevent,” Smith said.
In written submissions, the defense have argued that the 1996 pardon is another legal bar to Ieng Sary’s prosecution, however the matter was not addressed at the tribunal Tuesday.
Youk Chhang, director of the Documentation Center of Cambodia, said Tuesday that the ECCC had begun to consider an important aspect of the Khmer Rouge’s political legacy.
The government’s initial insistence that Ieng Sary’s pardon be honored at one time seemed like an insurmountable obstacle to the creation of the Khmer Rouge tribunal, he said.
“[Ieng Sary] was the gray cloud that this court could not happen,” Youk Chhang said. “The public was convinced that this court was like a dream that could not be achieved.”
The Pre-Trial Chamber’s five-judge panel also ruled during Tuesday’s hearing that civil parties to cases at the tribunal who are represented by attorneys would not be allowed to speak for themselves.
The decision prompted one of the civil parties, Theary Seng, to dismiss her lawyer, but the judges again denied her the right to speak anyway.
“The participation of civil parties as parties is either for real or is a farce,” Theary Seng said after the hearing, adding that she was considering her legal options in the wake of the decision. Theary Seng has personally addressed the Pre-Trial Chamber on two previous occasions.
Her attorney, Hong Kimsuon, referred questions to international civil party co-lawyer Silke Studzinsky, who said she believed the ruling ran counter to the court’s internal rules.
“If a civil party has no lawyer, like Ms Seng Theary…that means she has full procedural rights,” said Studzinsky, who does not represent Theary Seng.
(Additional reporting by Eang Mengleng)