Lawyers for Ieng Sary argued before the Khmer Rouge tribunal Wednesday that the court cannot prosecute him because of a royal pardon and amnesty granted nearly 12 years ago.
Cambodian defense lawyer Ang Udom on Wednesday told the tribunal’s Pre-Trial Chamber that the 1996 royal decree had made Ieng Sary, the former Khmer Rouge foreign minister, immune to prosecution and demanded his immediate release.
“This pardon and amnesty protect Ieng Sary from any further prosecution,” he said. “If the royal decree and pardon were granted according to the law, and if the royal decree had truly pardon over all the crimes…then the Pre-Trial Chamber shall release Ieng Sary without any conditions.”
Then-King Norodom Sihanouk in September 1996 nullified Ieng Sary’s death sentence for genocide handed down by a 1979 tribunal and gave him amnesty against prosecution under a 1994 law outlawing the Khmer Rouge.
In a letter to Amnesty International that month, Norodom Sihanouk said he had done this at the urging of then Co-Prime Ministers Prince Norodom Ranariddh and Hun Sen, to whom he was “obliged to give satisfaction.”
US defense lawyer Michael Karnavas told the court that Prince Ranariddh and Hun Sen had intended to offer Ieng Sary immunity in exchange for peace.
“The then-prime ministers recognized Mr Ieng Sary as being perhaps the key to dismantling the Khmer Rouge,” he said. “Within months, 70 to 80 percent had put down their arms.”
“In this instance, there was a choice that had to be made. And as painful as that choice may have been, it served a very good purpose,” he said.
Deputy Co-Prosecutor William Smith countered Karnavas’ interpretation, saying Hun Sen had not intended to shield Ieng Sary from judicial reckoning. In support, he cited a statement by the premier according to which “there are no words in [the pardon] which ban the accusation of Ieng Sary in front of a court which may be formed in the coming times.”
“It was this prime minister and the other one that requested the pardon,” Smith said. “Their intent as to the scope of it and the amnesty is centrally important.”
Prosecutors also asserted that the pardon refers only to Ieng Sary’s sentence and not to the crime of genocide, meaning it cannot apply to his current prosecution.
Pardons and amnesties for internationally recognized crimes such as genocide and crimes against humanity are not legally valid, the prosecution also contended.
“No person in the world has been granted a pardon for the crime of genocide, of which he or she has been convicted,” Cambodian Deputy Co-Prosecutor Yet Chakriya said. “This is an undeniable international standard.”
Lawyers for the nine civil parties to the case have argued that Norodom Sihanouk stepped outside the bounds of his authority in issuing an amnesty, which they say he did not have the right to do under the Constitution.
On Tuesday, Bernard Krisher, publisher of The Cambodia Daily who collaborated on a book with Norodom Sihanouk, said the retired King had once told him in a private meeting at the Royal Palace that he did not want to pardon Ieng Sary, but succumbed to the insistence of the co-prime ministers.
In negotiations to establish the tribunal, the UN Office of Legal Affairs insisted in 2000 that Ieng Sary’s prosecution not be barred, a position maintained by UN negotiators through that year.
In 2001, however, the National Assembly adopted a law to create the tribunal that omitted any reference to pardons or amnesties.
The 2003 tribunal agreement with the UN nevertheless said the question of Ieng Sary’s pardon would have to be resolved by the court. A revised version of the Cambodian law was enacted in 2004.
Civil parties Wednesday again seemed to chafe at the constraints placed on them in these pretrial proceedings.
The Pre-Trial Chamber in March granted procedural rights to civil parties during pretrial hearings, allowing them perhaps the broadest ability to participate of any war crimes tribunal.
However, disagreement emerged again Wednesday over the purpose of their presence.
Denied the right of audience Monday and Tuesday, civil party Theary Seng informed the court that she had filed a motion Wednesday asking the Pre-Trial Chamber to reconsider its decision denying civil parties the right to speak in pretrial hearings.
“You are not allowed to speak in person,” Judge Katinka Lahuis responded, adding that the court was aware of her application and would rule on it.
“Since it’s no benefit to the court, to you or to the proceedings, for me to take up this space, since I have no voice, I would like to wait until I have a voice in this court to be in this court,” Theary Seng said before exiting the courtroom.
Karnavas also objected to repeated oral submissions by civil party lawyers during the hearing.
“At some point we’re going to need more staff on this side. It’s called equality of arms,” he said. “I understand everybody wishes to be seen speaking or to speak, but that’s not the purpose.”
Arguments are scheduled to continue today.