Lawyers for former Khmer Rouge Foreign Minister Ieng Sary on Monday publicized the views of a doctor at the International Crimnal Tribunal for the former Yugoslavia in The Hague who believes the 83-year-old war crimes suspect’s fitness to stand trial remains unclear.
In a letter posted to the defense team’s new website, Dr Paulus Falke, medical officer at the detention unit of the ICTY, said medical reporting by Ieng Sary’s doctors had thus far not painted a full picture of his physical stamina and mental capacities.
Ahead of a bail hearing scheduled for Thursday, defense lawyers Michael Karnavas and Ang Udom have asked that the tribunal summon the testimony of every doctor to have treated Ieng Sary since his arrest in November 2007.
According to Karnavas and Ang Udom, in that time, Ieng Sary has been sent eight times for treatment at Phnom Penh’s Calmette Hospital, where he has spent a total of 46 days. They have also repeatedly claimed that detention at the tribunal is harming Ieng Sary’s health and that he should be confined to a hospital.
Prosecutors last year did not oppose the appointment of psychiatric experts to assess the fitness of both Ieng Sary and Nuon Chea, the oldest of the court’s five detainees, and strongly disagreed with judicial investigators who determined the defendants’ fitness to stand trial was not an issue during the investigation.
The Pre-Trial Chamber in October ruled there was no evidence that Ieng Sary or Nuon Chea were incapable of understanding the charges against them, and that they could be adequately cared for by the tribunal.
However, in a Feb 12 letter, Falke said that after reviewing Ieng Sary’s medical records, more examinations were necessary.
“[A]t least three medical issues concerning Mr Sary must be addressed and resolved with clarity,” Falke wrote. “His actual cardiovascular state of health and prognosis, his cognitive and psychological state of health, his frailty state.”
“More clarity concerning Mr Ieng Sary’s frailty and actual cardiac condition can help in assessing whether he can attend court and actively participate in his defense,” he added.
Ieng Sary suffers from heart disease, high blood pressure and lumbago, and has undergone four heart operations, including a double-bypass, since 1994.
Falke recommended a “comprehensive geriatric assessment,” as well as other tests including a minimal mental state evaluation and a geriatric depression scale, which assess both cognitive abilities and the tendency toward depression due to deteriorating health.
“Experiences over the years with ICTY detainees in The Hague, The Netherlands, showed a significant increase of both physical and mental stress with significant health problems due to extraordinary, long trial proceedings and long imprisonment,” he wrote. “Taking into account the statistic life prognosis of [an] 83-year-old—which is three years—an expected increased frailty with Mr Ieng Sary, his health and life expectations will probably be very much limited.”
In a pleading filed Friday, the defense asked that Falke be allowed to testify at Thursday’s hearing via video linkup.
Modern tribunals have rarely dealt with defendants as old as those before the Khmer Rouge tribunal, according to Anne Heindel, a legal adviser to the Documentation Center of Cambodia.
In successive rulings, courts in the United Kingdom and Chile on several occasions declared former Chilean dictator Augusto Pinochet psychologically unfit to stand trial.
He died in 2006 at age 91 without having been prosecuted.
The fitness standard currently applied by other courts, such as ICTY, may not fit the circumstances of Khmer Rouge detainees in their late 70s and 80s, according to Heindel.
“They’re still applying the standard that other courts are applying without considering whether this is an additional concern,” she said.