Peaceful and increasingly prosperous, Cambodian society is not so “fragile” that former Khmer Rouge Foreign Minister Ieng Sary cannot be placed under house arrest ahead of trial, his defense lawyers have argued.
In seeking the release of their client, attorneys Ang Udom and Michael Karnavas have mounted the lengthiest challenge so far against the standard language used to justify the pretrial detention of all five people charged by the Extraordinary Chambers in the Courts of Cambodia.
The lawyers also said the tribunal will be held to account if Ieng Sary’s continued detention causes him to die or his frail health to worsen, according to a copy of the appeal made public last week.
The court’s Pre-Trial Chamber, which is scheduled to hear arguments this morning against the pretrial detention of Brother No 2 Nuon Chea, ruled unanimously in December that former S-21 prison director Kaing Guek Eav, aka Duch, should remain behind bars to preserve public order before he is tried.
Court observers said Sunday that releasing Ieng Sary could appear to reverse the course of justice and revive fears among victims that the defendant is untouchable.
In ordering the five detentions, ECCC co-investigating judges Marcel Lemonde and You Bunleng have characterized crimes committed under the Khmer Rouge as being so grave that even 30 years later, a suspect’s release would risk provoking violent unrest “in the fragile context of today’s society.”
Drawing on the statements of Prime Minister Hun Sen, the Planning Ministry, the UN Development Program, the US Agency for International Development and the World Bank, Ang Udom and Karnavas argued that no such context exists.
Furthermore, international tribunals for countries far more prone to violence have provisionally released defendants charged with grave crimes, they wrote.
Despite a wave of violence in Kosovo that displaced thousands of Serbs in 2004, the International Criminal Tribunal for the former Yugoslavia in 2005 provisionally released former Kosovo Liberation Army leader Ramush Haradinaj, according to the brief. An appellate ruling at the same court also granted house arrest to genocide suspect Biljana Plavsic in 2001. She later pleaded guilty.
“To suggest that Cambodian society is so fragile that it would explode into violence if a court were to grant provisional release to a person presumed innocent underestimates both the maturity of Cambodian society and the success of the [government] in bringing peace and stability,” the lawyers wrote.
Youk Chhang, director of the Documentation Center of Cambodia, declined to speculate on how the public might react if Ieng Sary were released, but said that such a decision would provoke anger among the people.
“Public opinion shifted when Ieng Sary was arrested because Ieng Sary was seen as protected by the government. The public now feels that there is hope for justice,” he said, adding that survivors of the regime were long outraged by Ieng Sary’s freedom of movement before his arrest on Nov 12.
“If you release him you should expect some reaction,” he said.
Hisham Mousar, a court monitor for the local rights group Adhoc, said Sunday that after the anti-Thai riots of 2003 and the factional fighting of 1997, as well as decades of civil war, Cambodia could well be more prone to unrest than the defense has claimed.
He added that the tribunal’s creation has altered circumstances.
“It’s not because in the past there wasn’t violence toward…senior leaders that this situation must continue,” he said. “The situation is not at all the same. These trials exist. It’s not like two years ago.”
Ang Udom and Karnavas also argued in the brief that current detention conditions are “highly detrimental” to the health of their client, who they claim would best be cared for under house arrest.
Ieng Sary, who underwent heart surgery in Bangkok in 1998, was briefly hospitalized last week due to heart problems.
ECCC Public Affairs Chief Helen Jarvis reiterated on Sunday the court’s position that sufficient medical care is available to all defendants.
“I can say confidently that all care is being given when required,” she said.
