Ieng Thirith, the dementia-afflicted former Social Action Minister during the Pol Pot regime, has been declared unfit for trial and will be released from custody, judges at the Khmer Rouge tribunal ruled yesterday.
Over the past few months, Ieng Thirith has been diagnosed by a succession of medical experts with “moderately severe” dementia that is likely caused by Alzheimer’s disease.
Judges yesterday said her condition was degenerative and has progressed to the point where she can no longer exercise her fair trial rights, which include testifying in her own defense and understanding the nature of court proceedings.
The tribunal’s massively complex Case 002—in which Ieng Thirith was accused of genocide, war crimes and crimes against humanity along with three other regime leaders, one of whom is her husband Ieng Sary—will now proceed without her when substantive hearings begin on Monday.
“The Chamber accepts the unanimous opinion of all experts that Ieng Thirith’s condition will likely deteriorate over the course of what is likely to be a complex and lengthy trial….” the judges wrote. “The Trial Chamber therefore determines it to be in the interests of justice to sever the charges against the Accused Ieng Thirith in Case 002…and stays the proceedings against her.”
The judges disagreed, however, on what to do with Ieng Thirith now that she is no longer subject to judicial proceedings. The chamber’s three Cambodian judges insisted that she not be released from custody, while the two UN judges said there was no legal basis to continue to detain her.
Judges Nil Nonn, Ya Sokhan and You Ottara said there was still some hope that Ieng Thirith’s condition could improve, and said she should be hospitalized under judicial supervision for at least six months to be monitored and receive treatment.
But international judges Silvia Cartwright and Jean-Marc Lavergne said there was almost no possibility Ieng Thirith would get better, even under a therapeutic medical regimen. They said they had no choice but to order her immediate release.
Because the chamber lacked the necessary supermajority to come to a decision, they looked to international law, under which “the interpretation most favorable to the accused must be preferred.”
“The Trial Chamber has unanimously agreed that the only remedy in the circumstances is unconditional release,” all five judges concluded.
However, it is still not clear when Ieng Thirith might be able to leave the Khmer Rouge tribunal’s detention facility, where she has been imprisoned since 2007.
“Ieng Thirith will be released according to the provisions of the internal rules,” the tribunal’s legal affairs spokesman Lars Olsen said.
“Internal rule 82.6 stipulates that the co-prosecutors can theoretically ask for a stay of her release within 24 hours to the president of the Supreme Court. If there is no appeal within 24 hours, she will be released as soon as possible.”
International Co-Prosecutor Andrew Cayley said he was not yet certain whether he would request a stay.
“I’m certainly very content that the Trial Chamber has actually made a decision with regard to Ieng Thirith in advance of the commencement of the trial,” he said. “As to the issue of whether or not we will appeal, I need to discuss that with my national colleague tomorrow, as she is not in the office today.”
Ieng Thirith’s defense lawyer, Phat Pouv Seang, said he was pleased by the decision. “This is something a lawyer appreciates,” he said. “Every defense lawyer’s goal is to help their client get out of the accusation, so this is a pleasure.”
He said although it was still not decided what Ieng Thirith would do upon her release, she would probably go live with her children.
“It’s up to her…she can stay wherever is easy. It’s likely she will stay with her children because she needs people to take care of her.”
Ieng Thirith’s son Ieng Vuth, currently the deputy governor of Pailin province, said that he had not yet heard about the court’s decision, and he was not sure where his mother would live in the event of her release.
“I am no different from other people—she is my mother, so I am happy,” he added.
Ieng Thirith’s family has insisted loudly over the years that she is mentally ill like her late sister, Khieu Ponnary, who was Pol Pot’s first wife.
Indeed, she has been prone to outbursts both in open court and her detention facility, lashing out in particular at Brother Number Two Nuon Chea on dozens of occasions. During a 2009 hearing, she cursed her accusers “to the seventh level of hell.”
Chum Mey, a civil party and the president of the Ksem Ksam Victims’ Association, said he could not bring himself to believe that Ieng Thirith truly has dementia. He said her unruly behavior in court showed that she was aware of her surroundings.
“Ieng Thirith didn’t want to enter into the hearing—I think this is a trick of the accused,” he said. “When the doctor diagnosed Ieng Thirith’s mental disease, I still did not believe her. This is not justice for all the people who died.”
(Additional reporting by Khy Sovuthy, Kuch Naren and Neou Vannarin)