ECCC Reparations

This blog is designed to serve as a repository of analyses, news reports and press releases related to the issue of RERAPATIONS within the framework of the Extraordinary Chambers in Courts of Cambodia (ECCC), a.k.a. the Khmer Rouge Tribunal.

Tuesday, October 30, 2007

Editorial: What Now?

What now?


Stan Starygin

After the publication of the grueling UNDP audit of the ECCC, there has been a host of commentaries and interpretations of its assertions. Many agree that the UNDP clearly pointed to far more than minor indiscretions on the part of "the Cambodian side" of the tribunal, bringing to light practices which amount of the notion of bad faith. The Cambodian government responded to these assertions in several ways. In some cases it re-assigned some of the blame back to the UN, put a spin on the hiring and remuneration theories deriving from the ECCC Law and generally chalked up several fiascos in its hiring practices to experience promising that the functioning of "the Cambodian side" would improve as the process goes along.

During late summer and early fall of 2006 the word of hiring "irregularities" was out in the community with some Cambodian applicants dropping out of the application process based on a strong belief that they would not be given a fair chance of getting the job. One didn't have to go any further than spending a little time in the halls of the tribunals packed with shortlisted applicants some of them gradually leaving as the news spread. This was word on the street, of course, not any type of hard evidence to base serious allegations upon. This was a few months before OSJI published its allegations and called for an independent audit of the tribunal.

This news made headlines thousands of miles away from Phnom Penh and sparked some heated-up debates in Phnom Penh's expatriate community. None of the Cambodians were surprised. The representatives of the international community made several perfunctory statements about Cambodia's obligation to abide by the rule of law and fair practices, but most of the diplomats themselves did not seem to put my weight into what they were saying. One diplomat -- who's identity the Cambodia Daily did not reveal -- openly pointed out to the fact that such allegations are no news flash in Cambodia and this is how things are done in day-to-day practice. This diplomat surely enough would have never admitted to something like this had anonymity not been guaranteed. He has a valid point, though, which many who have spent any time in Cambodia fully understand.

Unfair hiring practices, lack of due diligence, illegal financial practices and other uncouth practices are nothing new in the modern world of enrons, authur andersons, worldcoms, ingens, world banks and the like, though. The question is to what extent can we expect a court in a developing country riddled with unbridled corruption to follow the principles of fair hiring practices and whether the international community can continue on the assumption that this is not Finland and that full transparency and fairness will not be achieved at least within the lifetime of this tribunal?

The international community finds itself between the rock and a hard place in the matter. On the one hand, the community understands that practices which go back thousands of years and which are part and parcel of Cambodian culture cannot be discontinued with within a short period of time such as that of the life of the tribunal. On the other hand, the international community cannot openly endorse these practices due to them being inimical to everything the international community's democratic and development business-driving component stands for. It seems like a Catch-22 situation, in which a choice made either way will be wrong.

The international community has found an answer to this question that circumvents the horns of the dilemma described above: it will put enough pressure on the Cambodian government and probably ruffle a few feathers but avoid letting the situation reach a breakpoint. The Cambodian government, on its end, will either try to sweep the matter under the rug or promise to examine it and improve the situation in the future and carry on with the thousands of years' vintage practices. In simple English, the international community will shake its finger and the Cambodian government will throw its hands apart. The show will go on, as planned. As planned by someone, anyway. That's what now.

Saturday, October 27, 2007

Cambodian tribunal to hold first public hearing on detained Khmer Rouge leader's appeal

Cambodian tribunal to hold first public hearing on detained Khmer Rouge leader's appeal

PHNOM PENH, Cambodia: A former Khmer Rouge leader charged with crimes against humanity will appear publicly in a courtroom for the first time when his appeal against detention is heard, an official said Wednesday.

The appeal by lawyers for Kaing Guek Eav, the former Khmer Rouge prison chief also known as Duch, "will be the first courtroom proceeding" of any kind held by the tribunal, said Reach Sambath, a spokesman for Cambodia's U.N.-backed genocide tribunal.

He said no date has yet been set for the hearing but it could be in late November or early December.

"The public hearing will encourage the people to be involved in the process of the trial. We expect a lot of people will participate in the hearing," Reach Sambath said.

A panel of five judges — three Cambodian and two international officials — of the pretrial chamber will conduct the proceeding, a tribunal statement said. Duch will be present, Reach Sambath said.

Duch headed the Khmer Rouge's S-21 prison and torture center, where some 16,000 suspected enemies of the regime were tortured before being taken out and executed in an area near the capital later known as the "killing field," which eventually became the location of a genocide museum. Only about a dozen of prisoners are thought to have survived.

He has been charged with crimes against humanity committed when the Khmer Rouge held power from 1975-79.

The communist group's radical policies caused the deaths of some 1.7 million people from starvation, disease, overwork and execution.

In their appeal motion last month, Kar Savuth and François Roux, Duch's Cambodian and French lawyers, asked that their client "be released immediately."

The argued that Duch's rights had already been violated because he has been held without trial in a military prison since May 1999.

They called the previous detention period "excessive and illegal" under Cambodian law and under the international human rights standards. They said Duch must "be awarded compensation for the harm he has suffered as a result of the time he has spent" in the military prison.

Duch was transferred to the custody of the tribunal in July.

In their detention order issued just after taking Duch into custody, the tribunal's co-investigating judges rejected a similar argument, saying they did not have jurisdiction to determine the legality of Duch's prior detention.

They also said granting him freedom could provoke public anger and violence that could imperil Duch's own safety.

Besides Duch, the only other suspect detained by the tribunal is Nuon Chea, the former Khmer Rouge ideologist who has been charged with war crimes and crimes against humanity.

The prosecutors have recommended three other suspects for trial but not named them yet.

Last week, the Khmer Rouge's former foreign minister, Ieng Sary, said he believed he will be the next one to face charges by the genocide tribunal, but denied responsibility for the atrocities during his group's rule.

The trials are expected to begin next year.

Friday, October 26, 2007

Pol Pot’s chief torturer comes to Christ

Pol Pot’s chief torturer comes to Christ
vendredi 19 octobre 2007

By Dean Smith

The Khmer Rouge started as a Maoist, guerilla group in the Cambodian jungles. Run by a despot named Pol Pot, they overthrew the Cambodian government in 1975 starting a four year reign of terror.

In an effort to transform Cambodia into an agrarian society, Pol Pot emptied the cities forcing people into the country where hundreds of thousands starved to death and others murdered or simply worked to death. Phnom Penh, the capital city with a current population of 1.2 million, was turned into a ghost town in the late 70s.

One of the regime’s mottos was “To keep you is no benefit, to destroy you is no loss” and certainly they lived by it. There were mass executions of former government loyalists, intellectuals (this included people wearing glasses which indicated they could read) and non Cambodians such as Vietnamese and Chinese. Religious groups were also targeted particularly Christians and Muslims.

Though the Khmer Rouge was finally ousted by the Vietnamese in 1979, it’s estimated the Khmer killed 1.7 million Cambodians or nearly 20% of the population. The British movie, The Killing Fields, won three Academy Awards for it portrayal of this horrific time in Cambodian history.

The International community has made repeated attempts to have Cambodia come to terms with this dark period in its history. Finally after 30 years of prodding, the Cambodian government will hold trials in 2008 bringing to justice those responsible. The Cambodia government only allowed the trial — referred to as the Extraordinary Chambers of the Courts of Cambodia (ECCC) — to proceed once certain conditions were met. First, the costs of the ECCC needed to be paid by the international community and the tribunal will not be allowed to prosecute any government officials with a Khmer past.

So instead, the ECCC will focus on former Khmer leaders who are not politically connected to the current regime. Though Pol Pot died in 1998 under mysterious circumstances, many former Khmer leaders walk free in the country. This includes Leng Sary, the foreign minister of the Khmer Rouge, who has lived in a mansion in Phnom Penn under police protection. Nuon Chea — Brother #2 — second in command behind Pol Pot was considered the master mind behind the Khmer genocide and lives in northwestern Cambodia. Nuon Chea was arrested in September and is the second person slated to face the tribunal.

The chief torturer and executioner

The first is a man named Khang Khek Ieu. He has been in jail since 1999 and was finally charged this past July. Khang whose revolutionary name was Duch (pronounced dook) was leader of the Khmer Rouge’s secret police and oversaw its prison camp system used to torture and execute individuals (men, women and children) considered enemies of the state.

Duch also commanded the notorious S-21 — known as Tuol Seng — the highest security prison in the regime where an estimated 12,000 people were imprisoned and executed. Most sent there were actually members of the Khmer Rouge, as Nuon Chea regularly purged the party of dissidents real or imagined. Using extreme measures of torture, S-21 routinely gained confessions before execution. Only a handful of people survived detention at S-21.

Duch has confessed his involvement and repeatedly stated he would “reveal the details of crimes committed by the Khmer Rouge.” To date, he is the only major leader of the Khmer Rouge to confess to his crimes.

Pol Pot’s torturer comes to Christ

Christopher LaPel — a Cambodian-born pastor living in Los Angeles — regularly travels to Cambodia to preach the Gospel and hold leadership training seminars.

In 1995, while in Chamkar Samrong a village in Battambang province, he met a withdrawn and gaunt man named Hang Pin, 54, who was encouraged to attend LaPel’s meetings at the urging of a friend.

After listening to LaPel’s sermons, Hang made a commitment to Christ and asked to be baptized. LaPel said this resulted in a remarkable transformation. Hang went from being withdrawn to open and laughing and concerned about how he looked. LaPel had no idea his newest disciple was the notorious leader of the Khmer Rouge secret police — Duch.

Looking back, LaPel told the Laredo Morning Times that the only hint he had of Hang Pin’s dark past was from a comment he made : “Pastor Christopher,” Hang Pin said, “I’m a sinner. I don’t think my brothers and sisters can forgive me because my sins are so deep.” [3]

After his conversion, Hang Pin returned to his village and started a church. He eventually went to work for a non government agency called the American Refugee Committee (ARC) in 1997 — all the while, maintaining his connection with LaPel and preaching the Gospel.

In search of Duch

As the Holy Spirit drew Hang Pin to salvation, British photographer and Journalist Nic Dunlop was in the country reporting on Cambodia’s Khmer Rouge past.

In his article “On the trail of Pol Pot’s chief executioner,” published in Prospect Magazine, Dunlop said he was drawn to S-21, which had been turned into a museum of the genocide.

Photos taken of the thousands people incarcerated there hung on the walls. He was mesmerized by their faces filled with desperation and terror. During one of his visits, he saw a picture of the camp commander — Duch. He obtained a copy thinking it might prove useful in identifying the former commander, if he ever came across him.

In 1999, while on one of his tours, Dunlop met Hang Pin in a village near the city of Samlot in Western Cambodia. Dunlop was convinced he had found Duch.

Dunlop returned a week later with a fellow reporter, Nate Thayer, to confront Hang Pin. Thayer asked Hang Pin if he ever worked for the Khmer Rouge. Hang Pin deflected the question stating he currently worked with ARC and was translating school text books. Thayer asked the question two more times and finally Hang Pin paused and said, “It is God’s will you are here.” [1]

“I have done very bad things in my life,” he told them. “Now is the time to bear the consequences of my actions.”

Duch confessed his involvement with the secret police and S-21. After Dunlop and Thayer broke the news, Duch went into hiding for a couple days before finally turning himself in to the police. Dunlop has no doubt Duch’s commitment to Christ played a role in his confession and arrest.

In a later interview with Thayer published in the Far Eastern Economic Review, Duch said he was willing to testify against other Khmer perpetuators and feared for his life because of his willingness to do so. “It is OK, they can have my body,” he said, “Jesus has my soul. It is important that this history is understood. I want to tell you everything.” [2]

This past June, I contacted Christopher LaPel and received an encouraging report about Duch who at the time was incarcerated in a military prison in Phnom Penh just a few blocks away from S-21. He has since been transferred to the ECCC detention center.

“Yes, I would like to answer your questions regarding Khang Khek Ieu or Hang Pin or Duch, one of my disciples and one of our leaders serving our Lord Jesus Christ in Northwest Cambodia before he came forward ... Yes, he is in jail in Phom Penh and he [is] still preaching and sharing God’s word with people around him.”

The work on the Cross

Duch’s conversion is a powerful testament of the complete work of Jesus on the Cross.

Paul said we are “justified by faith” (Rom 5:1). The word justification does not mean to infuse with righteousness ; rather it means you were declared not guilty because there is no evidence to condemn you. Paul explains in 2 Cor 5:21, “He (God) made Him (Jesus) who knew no sin to be sin on our behalf, so that we might become the righteousness of God in Him.”

At the moment of salvation, all of Duch’s acts of torture and murder were transferred on to Jesus and God no longer has any record of this sin. Though Duch will be found guilty of all charges in the earthly trial, he is acquitted of all charges in the heavenly.

In fact, Paul wrote : “where sin increased, grace abounded all the more” (Rom 5:20). Where there is great sin, there will be more than enough grace to cover it.

LaPel forgives

When Christopher LaPel found out who his disciple was, he personally had to come to grips with the issue. His parents, brother and sister were killed during the Khmer Rouge reign of terror. One cousin, a science professor, even ended up in S-21 and her photo hangs on the wall.

“I was shocked when I found out who he really was,” Chris said in a TimesAsia article, “because what he did was so evil.” “Then I reflected it’s amazing ; it’s a miracle. Christianity changes people’s lives. If Jesus can change Duch, He can change anyone.” [4]

LaPel holds no anger towards Duch and has completely forgiven him.

Sources :

[1] On the trail of Pol Pot’s chief executioner, by Nic Dunlop (Prospect Magazine, August 2002)

[2] Duch implicates living Khmer Rouge leaders in killing (Far Eastern Economic Review : May 4, 1999)

[3] Christianity finds home in Cambodia, but death questioned, by Chris Fontaine (Laredo Morning Times : January 23, 2000)

[4] The killer and the Pastor, by Caroline Gluck (TimeAsia : July 12, 1999)

Others sources : Tribunal finally ready to probe « Killing Fields », by Geoffrey York (Globe and Mail June 14, 2007 : Toronto, Ontario Canada) / Cambodian justice, a long time coming, by Noah Novogrodsky (National Post : October 1, 2007).

© Assist News Service

Cambodian tribunal summons former Khmer Rouge prison photographer

Cambodian tribunal summons former Khmer Rouge prison photographer
The International Herald Tribune
The Associated Press

Published: October 23, 2007

PHNOM PENH, Cambodia: Cambodia's genocide tribunal has summoned a former photographer who captured thousands of haunting images of prisoners before they were tortured and executed by the Khmer Rouge, the photographer said Tuesday.

Nhem En, 47, said the tribunal's judges ordered him to appear before them on Nov. 1 "in regard to the criminal case of Duch," referring to his former boss, Kaing Guek Eav, who headed the Khmer Rouge's notorious S-21 prison and torture center.

Duch has been detained by the U.N.-backed tribunal on charges of crimes against humanity committed when the Khmer Rouge regime held power in Cambodia from 1975 to 1979.

The group's radical policies caused the deaths of an estimated 1.7 million people from starvation, overwork, disease and execution.

Up to 16,000 suspected enemies of the regime were tortured at the prison before being executed in an area near the capital, Phnom Penh that later became known as the killing fields

Only about a dozen of the prisoners are thought to have survived. The prison is now known as the Tuol Sleng Genocide Museum and is frequented by tourists.

Nhem En photographed thousands of prisoners before they were locked up, tortured and executed and their images are the centerpiece of the museum.

He has denied any involvement in the atrocities and said his job was merely taking pictures of the prisoners after they were brought to the prison.

"I will not oppose the summons. I support the tribunal to try the former Khmer Rouge leaders," Nhem En said.

Besides Duch, Nuon Chea, the former Khmer Rouge ideologist, is the only other suspect detained by the tribunal, which has charged him with crimes against humanity and war crimes.

No trial dates have been set.

Copyright © 2007 the International Herald Tribune All rights reserved

Hawaii man helping to bring justice to genocide victims

Hawaii man helping to bring justice to genocide victims

By Dan Nakaso

Advertiser Staff Writer

Posted on: Monday, October 22, 2007

Phil Estermann of Honolulu is in Cambodia this week with the daunting task of helping create an international court system to try alleged leaders of the Khmer Rouge — while simultaneously educating a mostly illiterate society about a genocide that occurred a generation ago.

"It's tremendously challenging and interesting," said Estermann, grants officer for the Honolulu-based East-West Center. "One of the realities is that across the country there are many former Khmer Rouge living side-by-side in the same communities with non-Khmer Rouge. It's not an easy task to try to deal with that."

Estermann has been back and forth to Cambodia through a partnership between the East-West Center and the War Crimes Studies Center at the University of California, Berkeley.

The nascent courts system — called the Extraordinary Chambers in the Courts of Cambodia — is being developed after years of negotiations between the United Nations and the Cambodian government.

It will include closed-door hearings by investigative judges that could last more than a year, followed by a trial chamber and a possible Supreme Court chamber to hear potential appeals.

The various judges, prosecutors and defense attorneys will come from Cambodia, New Zealand, France, Japan, Poland, Sri Lanka, Australia and the Netherlands.

It's Estermann's job to help prepare them for the uncertain future that lies ahead as two former Khmer Rouge officials — Kaing Geuk Eav and Nuon Chea — head toward trials for crimes against humanity.

They're entitled to both international and Cambodian defense attorneys and every document and everything that's said has to be translated into Cambodian, French and English.

"The makeup of the court is extremely complex and, for a lot of the participants, quite frustrating," Estermann said. "Has anything ever been created like this? The answer is no. It is unique in its structure and is located within the Cambodian court system. Therefore the laws that apply are Cambodian as well as international."

He has helped organize workshops in Cambodia for judges, prosecutors and defense attorneys to consider issues such as genocide, command responsibility, joint criminal enterprise and crimes against humanity.

"One of the many complexities is to consider what laws were in existence when the alleged crimes were committed (between 1975 and 1979) and whether they apply," he said. "A whole body of law has been developed since after major tribunals in Yugoslavia and Rwanda. So the court is facing immense challenges."

At the same time, he has helped produce two of four planned videos about the Khmer Rouge and the genocide that resulted in an estimated 1 million to 2 million Cambodian deaths over only four years.

The first two videos feature actors who in reality survived the killing fields of Cambodia. They portray parents who are teaching their children about what happened during the reign of the Khmer Rouge and why the Extraordinary Chambers in the Courts of Cambodia was created.

On many levels, the task of producing the 15- and 25-minute videos that would both pass court approval and educate a relatively young population is as challenging as setting up a multinational court system.

About 70 percent of Cambodia is younger than 30 and never directly experienced the atrocities committed by the Khmer Rouge.

But it's an even harder challenge to explain complex issues of law to a country that "is 85 percent rural and about 70 percent functionally illiterate," he said. "The average Cambodian might not be familiar with the word for a 'court' and a 'judge' and a 'prosecutor.' "

With $135,000 in grants from the British Embassy in Phnom Penh, the first two videos have aired repeatedly on Cambodian television and have been shown to 20 focus groups in six different locations.

Now, Estermann is working with nongovernmental organizations in Cambodia to show the videos in rural villages that often lack reliable power.

Reach Dan Nakaso at

Cambodia requests more funds for genocide tribunal

Cambodia requests more funds for genocide tribunal

International Herald Tribune

The Associated Press

Published: October 25, 2007

PHNOM PENH, Cambodia: Cambodia appealed Thursday for more money to fund a U.N.-assisted genocide tribunal, saying the trials of former Khmer Rouge leaders would likely drag on longer than originally expected.

The appeal follows international pressure for greater transparency at the tribunal, a hybrid court jointly run by Cambodian and United Nations staff, amid accusations of mismanagement and kickbacks.

The trials, which have been plagued by delays, are expected to start next year.

The tribunal was originally projected to complete its work by 2009.

"There is a budget shortage for the operation of the tribunal, which could extend into 2010," Cambodia's Foreign Minister Hor Namhong told reporters Thursday.

The tribunal's head of public affairs, Helen Jarvis, said the US$56.3 million (€39.5 million) originally budgeted for the tribunal would not be enough, mainly because of delays in adopting rules at the tribunal.

"The original budget was just for three years until mid-2009 and we need to envisage going a bit longer than that," Jarvis said. "The extra funding and time we will need ... will be fully justified in our budget appeal."

She said fundraising meetings would take place in Cambodia and New York by the end of the year.

Of the US$56.3 million budgeted for the tribunal, there was still a US$7.5 million shortfall, she said. She declined to say how much more money would be needed, over and above the amount already budgeted.

She said the Cambodian tribunal funds will last until the first quarter of 2008 while the U.N.'s portion will last until later that year.

The radical policies of the Khmer Rouge, when in power from 1975 to 1979, led to the deaths of 1.7 million people from hunger, disease, overwork and execution.

The tribunal has so far detained only two senior former Khmer Rouge officials on charges of crimes against humanity and war crimes.

U.S. Ambassador Joseph Mussomeli said Washington was mulling over whether to donate funds for the tribunal but that no decision would be made until the tribunal has properly addressed the "serious" allegations of mismanagement and corruption in its administration.

"No one is going to want to spend American taxpayer money on an administrative process which is not transparent," he said, adding the tribunal's "administrative problem is so huge and so obvious."

A U.N.-commissioned audit last month slammed the Cambodian side of the tribunal for mismanagement, including hiring unqualified staffers.

Earlier this year, the New York-based Open Society Justice Initiative alleged that Cambodian judges and other court personnel had paid off government officials for their positions at the tribunal — claims the Cambodians dismissed as groundless.

"The bottom line is that the Khmer Rouge tribunal needs more money," Mussomeli said. But "even those donors who have been most generous in the past will have a difficult time giving more funding to the Khmer Rouge tribunal unless the administrative issues are fixed."

Copyright © 2007 the International Herald Tribune All rights reserved

Appeal Hearing for Kaing Guek Eav Has Been Scheduled

ECCC Media Alert

24 October

Pre-Trial Chamber schedules Tuesday 20 November 2007 at 1030 for Public Hearing of Appeal by Kaing Guek Eav (Duch) against Order for Provisional Detention. (see attached Scheduling Order)

The hearing will be preceded by a directions hearing on Thursday 15 November 2007 at 1000 which, while also public, will be devoted to procedural issues in preparation for the hearing on substantive matters to be held on 20 November.

Further details regarding public and media access to the hearings will be posted shortly.

Reach Sambath
Presss Officer
Extraordinary Chambers in the Courts of Cambodia
Tel: (855) 12 891 567
Fax: (855) 23 219 841


Saturday, October 20, 2007

Profile: Michiel Pestman

by Stan Starygin

Michiel Pestman has been involved in several high-profile cases over the last decade. He represented two journalists in a landmark case adjudicated by a Hague court in which, for the first time in recent Dutch practice, injunctive relief was granted to a plaintiff by a Dutch court against actions of the intelligence service. Mr. Pestman served as counsel for defense on a Special Court for Sierra Leone (SCSL)case Prosecutor v Fofana, which dealt with the issue of child military recruitment and which included a panoply of issues of the application of international human rights instruments and customary international law to domestic jurisdictions.
Most recently Mr. Pestman has been involved in the defense of a Filipino revolutionary leader Professor Jose Maria Sison who stands accused of murder. As the latter is currently being appealed before the Netherlands Appeals Court, and Mr. Pestman will be expected to assume his duties at the ECCC shortly, it is at this point not clear how the two of these commitments will be reconciled.

Friday, October 19, 2007

Meet the Lawyers: Michiel Pestman, Noun Chea's International Co-Lawyer

Michiel Pestman (1963) studied law in Leiden and political science in London. He was sworn in as an attorney in Amsterdam in 1994, and has been a partner at Böhler Franken Koppe Wijngaarden since 2002. He is a member of the criminal law department, focusing on general criminal law and international criminal law, and of the international law & human rights department. Mr Pestman belongs to the Dutch Association of Criminal Law Attorneys and the European Criminal Bar Association. He is on the list of Defence Counsel of the ICC. He lectures in international (criminal) law, he speaks Italian.

Thursday, October 18, 2007

Noun Chea Wants to Be Released on Bail

Jailed KRouge leader Nuon Chea appeals detention
18 November 2007
PHNOM PENH (AFP) — The senior surviving Khmer Rouge leader on Wednesday appealed his detention by a UN-backed tribunal in Cambodia that will prosecute him for his alleged role in the genocidal regime, officials said.

Nuon Chea, who has been charged with war crimes and crimes against humanity, had previously said the tribunal's detention center was comfortable, his lawyer Son Arun told AFP.

"But now he has changed his mind... we cannot say why he wants to be released on bail, but it is his will," the lawyer said.

Tribunal spokesman Reach Sambath confirmed that Nuon Chea had filed a bail request with the court's co-investigating judges.

The 81-year-old man's family had earlier demanded that he be released into their care, saying they were concerned about his health.

Nuon Chea has suffered at least one stroke and has high blood pressure, raising fears he could die before going to trial.

Son Arun said Wednesday that his client's health had not changed. He also said Nuon Chea had hired lawyer Michiel Pestman, who has extensive experience in international war crime proceedings, as his foreign co-counsel.

Nuon Chea, who was Khmer Rouge leader Pol Pot's closest deputy and was the alleged architect of the regime's sweeping execution policies, was arrested at his home in the former rebel stronghold of Pailin, near the border with Thailand, in mid-September.

He is the second former Khmer Rouge leader to be arrested by the tribunal. Khmer Rouge prison chief Duch was detained in July.

Three other people, whose names have not been made public, are under investigation for crimes committed during the communist regime's 1975-1979 rule.

Up to two million people died of starvation and overwork, or were executed under the Khmer Rouge, which abolished religion, schools and currency, and exiled millions to vast farms in its bid to create an agrarian utopia.

Khmer Rouge leader Pol Pot died in 1998.

A tribunal to try the regime's top leaders got under way last year after some ten years in the making. Trials are expected in 2008.

Appointment of Foreign Co-Lawyer for Nuon Chea

Press Release:

Appointment of Foreign Co-Lawyer for Nuon Chea

Nuon Chea has today chosen Mr Michiel Pestman of the Netherlands to act as his foreign Co-Lawyer alongside Cambodian Co-Lawyer Son Arun.

Mr Pestman is a partner at the law firm of Böhler Franken Koppe Wijngaarden in Amsterdam, where he has been a member of the bar since 1994. He has a practice that covers criminal law in both the domestic and international courts. From 1993-2001 he was a member of the team representing Bosnia and Herzegovina before the International Court of Justice in their action against Serbia for genocide. From 2003 he has represented Moinina Fofana before the Special Court for Sierra Leone in the trial against the government militia leaders, who last week was sentenced to six years imprisonment for war crimes. His domestic cases involve defending those accused of terrorism and other serious criminal offences in Europe and elsewhere. He lectures on international law at the University of Amsterdam.

Mr Pestman states: “I am looking forward to working with my Co-Lawyer Mr Son Arun and the other members of the team to represent Nuon Chea. I will do everything that I can to ensure that our client receives a fair trial. It is essential that he has a proper defence”.

His application to be registered with the Bar Association of the Kingdom of Cambodia has been filed today.


Reach Sambath
Presss Officer
Extraordinary Chambers in the Courts of Cambodia
Tel: (855) 12 891 567
Fax: (855) 23 219 841


Monday, October 15, 2007

PTC: Release Hearing Will be Held in Public

That the hearing on the appeal against the Provisional Detention Order of 31 July 2007 of the charged person KAING Guek Eav, filed by the Defence on 5 September 2007 shall be held IN PUBLIC on a date to be determined.
Phnom Penh, 09 October 2007
On behalf of the Pre-Trial Chamber

Victim Participation

ECCC Procedures for Victim Paricipation are avaialble at

Civil Parties: Forms for Filing

Complete forms for filing are available at

Civil Parties: filing of Documents Before the ECCC

The Rules and Procedure Committee of the Extraordinary Chambers in the Courts
of Cambodia (ECCC),
CONSIDERING the Agreement between the United Nations and the Royal
Government of Cambodia Concerning the Prosecution under Cambodian law of
Crimes committed during the Period of Democratic Kampuchea, signed on 6 June
2003 (hereinafter referred to as ‘the Agreement’),
CONSIDERING the Law on the Establishment of the Extraordinary Chambers in the
Courts of Cambodia with inclusion of the amendments as promulgated on 27 October
2004 (hereinafter referred to as ‘ECCC Law’),
CONSIDERING the Internal Rules of the ECCC, adopted by the Plenary Session of
Judges on 12 June 2007 and signed into force on 19 June 2007,
ACTING in accordance with Rule 20(3) of the ECCC Internal Rules, which entitles
the Rules and Procedure Committee to adopt Practice Directions relating to the
functioning of the ECCC, subject to review in the subsequent Plenary Session,
HEREBY ISSUE this Practice Direction on filing of documents (hereinafter referred
to as ‘Practice Direction 01/2007’)
Article 1: Opening and Numbering of Case Files:
1.1 The Office of the Co-Investigating Judges (OCIJ) shall open a new case file
upon the filing of an Introductory Submission and shall assign a case number
to the file.
1.2. The following symbols shall be used in assigning a case number
(e.g. 01/31-07-2007-ECCC/OCIJ)
a. 01 - Sequential number of the case
b. 31-07-2007 – Date on which the case file was opened.
c. ECCC – Extraordinary Chambers in the Courts of Cambodia.
d. The Organ before which the document is lodged. The following
initials will be used in this respect:
OCIJ Office of the Co-Investigating Judges
PTC Pre Trial Chamber
TC Trial Chamber
SCC Supreme Court Chamber
Practice Direction 2007/1 Page 2 of 6
1.3. In addition to the Case Number, the following symbols identified in bold shall
be used by the greffier in assigning a page and category number of the
document (e.g. 01/31-07-2007-ECCC/OCIJ-001-B4)
a. 001 – Sequential number of the document.
b. B4 – This is allocated by the greffier as directed by the Co-
Investigating Judges and represents the sub-folder category and
document number therein. The number following the letter signifies
the document number within the sub-folder.
Sub-folder Categories:
A – Form
B – Personality
C – Detention and Bail Conditions
D – Substance
E – Judgment Hearings
Article 2: Filing of documents
2.1. For the purposes of this Practice Direction, any filing of documents by the
parties, and any communication from or to the parties, shall made to the
greffier of the Office of the Co-Investigating Judges, or the Chambers, as
appropriate (hereinafter the “relevant greffier”), through the Case File Officer.
The Case File Officer sits in Room 118 of the ECCC Administration building.
2.2 Any person entitled to file documents before the ECCC shall notify the
relevant greffier as to which of the official language(s) of the ECCC they
intend to file and receive documents.
2.3. The official filing hours for lodging documents before the ECCC are from
Monday to Friday (8:00 am to 4.00 pm), excluding official holidays, as
advertised by the Royal Government of Cambodia.
2.4. All Documents filed before the ECCC in accordance with the Internal Rules
shall be submitted by any authorized person to Case File Officer who shall be
responsible for immediately forwarding the documents to the relevant greffier
as provided in the Internal Rules.
Article 3: Format of Documents
3.1 All documents shall be filed together with ‘Filing Instructions’ in the format
demonstrated at Appendix A. All documents should be filed in hard copy
only. Electronic filings may be accepted with the leave of the Co-
Investigating Judges or the relevant Chamber.
3.2 All documents shall have the following information on the first page, in the
format demonstrated at Appendix B:
a. The Co-Investigating Judges or the Chamber before which the case is
currently being processed.
Practice Direction 2007/1 Page 3 of 6
b. The case number as detailed in Article 1.2 above
c. To whom the document is filed.
d. The date of the document.
e. The party or individual that is filing the document.
f. The original language of the document.
g. The type of the document, i.e. ‘Public’, ‘Confidential’ or , ‘Ex parte’.
h. The short title of the document, which shall be as concise as possible.
i. The Parties that shall receive notice of the document filed.
j. The total number of pages of the document
3.3. There should be no logo or badge on the first page, which are used solely for
decisions of the ECCC.
3.4. Each subsequent page of the document shall have the following information:
a. The case number, as detailed in Article 1.2 above, in the top right hand
b. The short title of the document in the bottom left hand corner.
c. The page number and total number of pages in the bottom right hand
3.5. The top left hand corner of each page of every document shall be left clear for
the endorsement of an electronic ERN number generated by the Zylab system.
3.6. Documents shall be printed on one side of the page only.
3.7. Documents shall be submitted in A4 sized paper. Margins shall be at least 2.5
centimetres on all four sides. Paragraphs shall be numbered. All documents
shall be paginated.
3.8. The type face in English or French shall be typed in font Times New Roman
12 point with 1.5 line spacing. Footnotes shall be 10 point.
3.9. Electronic documents in Khmer shall be typed in Unicode font Khmer Kep,
font size 12. Headings shall be in Unicode font Khmer MEF2, font size 12.
Such fonts can be obtained at the following link:
3.10. Documents shall be filed unbound and shall not contain dividers, post-it
indexes or flags.
3.11. The original document shall be filed together with a copy and any
photographs, audio tapes and video tapes which are submitted as part of the
3.12. Subject to the general confidentiality of the case file, documents may be
marked ‘public’ or ‘under seal’ as appropriate. The Judges or Chamber shall
review the document to determine whether it shall be published, placed under
seal, or placed in the case file. Public documents may be used in press
releases and be posted on the official website of the ECCC.
Practice Direction 2007/1 Page 4 of 6
3.13. Where a document requires urgent measures to be taken, the Filing
Instructions shall indicate that the document is urgent and shall contain a short
explanation of the urgency.
3.14. The document shall be signed with a clear indication of the name of the person
who signed it.
Article 4: Contents of Documents
4.1 Documents filed before the Co-Investigating Judges or a Chamber shall
contain the following where appropriate:
a. An introduction containing the legal basis and a petition for the action or
relief sought.
b. A summary of the grounds of argument.
c. An outline of relevant facts, including a chronology where appropriate.
d. A summary of the relevant law, including extracts of relevant legal
e. The detailed legal argument.
4.2 Documents shall have as an appendix a list of authorities and copies of those
authorities as provided in article 6 below.
4.3 Any reference to a previously filed document shall include the court record
document number and ERN number in addition to the title and date of that
Article 5: Length of documents
5.1 A document filed to the Investigating Judges or the Trial Chamber of the
ECCC shall not exceed 15 pages in English or French or 30 pages in Khmer,
unless otherwise provided in the Internal Rules or this Practice Direction or
ordered by the ECCC.
5.2. A document filed to the Pre-Trial Chamber or the Supreme Court Chamber of
the ECCC shall not exceed 30 pages in English or French or 60 pages in
Khmer, unless otherwise provided in the Internal Rules or this Practice
Direction or ordered by the ECCC.
5.3. Unless otherwise ordered by the ECCC, the page limit shall not exceed 100
pages in English or French or 200 pages in Khmer for the written submissions
under Rule 92 of Internal Rules and responses thereto, if any.
5.4. The Co-Investigating Judges or the relevant Chamber may, at the request of a
participant, extend the page limit in exceptional circumstances.
5.5. There shall be no page limits for the following documents:
a. Introductory Submissions (Rule 53 of the Internal Rules)
b. Supplementary Submissions (Rule 55 of the Internal Rules); and
c. Final Submissions (Rule 66 of the Internal Rules).
Practice Direction 2007/1 Page 5 of 6
Article 6: List of Authorities
6.1 Documents shall be filed with a list of the authorities referred to therein. Such
list shall include the name, date and full citation for each authority, specifying
which provisions, paragraphs or pages are relied upon, together with any
explanatory note required under this paragraph.
6.2 The List of Authorities shall contain the same information on the cover sheet
as for the document filed, as per the example in Appendix C.
6.3 Documents shall be filed with copies of all authorities listed therein, with the
exception of those documents listed in ECCC Law Compendium hosted in the
ECCC’s official website.
6.4 Where an authority exceeds 30 pages, a copy of the first page of the authority
and the relevant section of the text shall be filed along with a note in the List
of Authorities specifying that the authority exceeds 30 pages.
6.5 Where an authority has previously been filed in the same case or proceeding it
shall not be re-filed, but the person filing the later document shall indicate in
the list of authorities the title, the court record document number and the ERN
number of the document with which the authority was previously filed.
Article 7: Language and Translation of documents
7.1 All documents shall be filed in Khmer, English or French.
7.2 Any party who has made a request to receive documents in more than one
official ECCC language under Article 2.1 shall file all documents in both or
all of those languages. The Court Management Section shall ensure the timely
translation of documents filed in accordance with this Practice Direction.
Article 8: Time Limits for pleadings and applications before the Chambers
8.1 Unless otherwise provided in the Internal Rules or this Practice Direction or
ordered by a Chamber of the ECCC, pleadings shall be filed with the greffier
of the Chamber hearing the case together with the relevant authorities in
accordance with the following timetable, subject to the right in Rule 39 of the
Internal Rules to request an extension of time limits.
8.2 A Chamber may fix time limits for the filing of an application or pleadings.
Where a date for a Court hearing has already been fixed, the application or
applicant’s pleading shall be filed at least 30 calendar days prior to the Court
8.3 Any response to an application or pleadings shall be filed together with any
list of authorities within 15 calendar days of notification, in the ECCC official
language which the party has elected under Article 2.1, of the document to
which the participant is responding.
8.4 A reply to a response shall only be permitted where there is to be no oral
argument on the request, and such reply shall be filed within 5 calendar days
of notification, in the ECCC official language which the party has elected
under Article 2.1, of the response to which the participant is replying.
Practice Direction 2007/1 Page 6 of 6
8.5 Time limits commence at the time of service of the Notification Instruction. In
all cases, where a party has requested to receive documents in more than one
official ECCC language under Article 2.1, time limits shall not commence
until the party receives the documents in all the languages requested.
Article 9: Late filing
A document may be filed outside the time limits as set out in Rule 39 of the
Internal Rules. In such cases, the person filing the document shall indicate the
reasons for the delay on the Filing Instructions. The Judges or Chamber before
which the document is filed shall decide whether to accept the document
despite its later filing.
Article 10: Deficient Filing
10.1 The relevant greffier, shall be responsible for verifying compliance with the
provisions of this Practice Direction.
10.2 Should a document not comply with the provisions of this Practice Direction,
the relevant greffier, shall complete and sign a Deficient Filing form
(Appendix D) which will be returned to the person filing the document along
with the original document for correction. The document shall only be
accepted after the mistakes have been corrected. If the document is
consequently filed outside the time limits, a copy of the Deficient Filing form
should also be lodged by way of clarification. The said document shall be filed
in accordance with Article 9 of this practice direction.
Article 11: Service of notices of documents filed
11.1 The parties shall be notified electronically of any document filed by the
relevant greffier . Parties shall notify the relevant greffier of the preferred
email address for service.
11.2 Service of a hard copy notice, where necessary, shall be effected on the same
day as the electronic notification by either the relevant greffier, or by the
Designated Officer of Court Management Section. The relevant Greffier, or
Designated Officer shall complete the ‘Acknowledgement of Service
Form’(Appendix E) upon which the document shall be deemed to have been
duly served.
11.3 Should the intended recipient not be at the address provided or should he or
she refuse to acknowledge service of the notice, the relevant greffier, or
Designated Officer shall complete the ‘Non-Service Form’ (Appendix F)
upon which the document shall be deemed to have been duly served.

Civil Parties Can Now File Complaints with the OCPs and the OCIJs

Victims Unit
In addition to being called as witnesses, Victims of the Khmer Rouge may participate actively in ECCC proceedings either by filing complaints or applying to be joined as Civil Parties.

The ECCC Victims Unit shall be the centralised initial contact point for Victims and their representatives for the filings necessary for participation in the proceedings.

As a transitional measure, until the Victims Unit is operational, Complaints may be filed directly with the Greffier of the Office of the Co-Prosecutors and Civil Party applications concerning ongoing investigations may be filed directly with the Greffier of the Office of the Co-Investigating Judges.

The Internal Rules of the ECCC, adopted in June 2007, create the Victims Unit. Rule 12 outlines the role of the Victims Unit, which includes maintaining a list of foreign and national lawyers who wish to represent victims.

Foreign lawyers wishing to represent victims are required to register with the Bar Association of the Kingdom of Cambodia and pay a fee of $500 directly to the Bar Association in order to be included in the list. A Registration Form is available below.

A full Victims Unit website will be published shortly.

Sunday, October 14, 2007

Stan Starygin: Statement of Concern (filed with the Pre-Trial Chamber)


15 OCT, 2007

Dear PTC,

I am writing this to bring an issue which arose in the process of writing of amicus curiae briefs solicited by the PTC to address Mr. Kaing Guek Eav’s defense team’s motion for release.

This solicitation was opened by a short statement of the PTC which announced that the hearing of Mr. Kaing Guek Eav’s appeal would be held in public and that the Chamber invited amicus curiae briefs relating to the appeal (No 07-09-001 ECCC/PTC). The public notice was issued 4 Sept, 2007. No other court documents were made public for the purposes of said notice with the exception of the publication of the order of provisional detention of 31 July, 2007 issued against Mr. Kaing Guek Eav by the Co-Investigating Judges. Although the appeal was entered by Mr. Kaing Guek Eav’s defense team against said order of provisional detention, the text of the appeal/motion for release was, to the best of my knowledge, never made a matter of public record by the PTC.

This created a fair amount of confusion and uncertainty for the amici who set out to respond to said solicitation, as it was not clear what the defense theory chosen by Mr. Kaing Guek Eav’s defense team was which prompted the amici writing in support of the accused to second-guess the defense’s arguments in order to attempt to supplement them.

However, as it was later revealed not all of the amici were in the midst of said predicament, as some of those who chose to submit a brief had had access to the defense’s motion for release from the beginning of the writing process. This opened up a myriad of opportunities for these individuals which, otherwise, were closed to the rest of the amici. Thus far, there have been two briefs which fit the bill, those of Dr. Sheffer and Miss Heindel who made them available – along with a scanned version of the defense’s motion for release -- on the following website
Upon a close reading of said briefs, no doubt will remain that said amici had had access to the defense’s motion for release (it is inconclusive at this stage whether said amici had access to the case file of Mr. Kaing Guek Eav submitted by the Office of the Co-Prosecutors to the Office of the Co-Investigating Judges) throughout the entire process of writing of their briefs which expired on 4 Oct, 2007.

Although I appreciate the fact that the PTC has no time, resources, or jurisdiction to investigate the circumstances under which a court document otherwise closed to the public was made available to Dr. Sheffer and Ms. Heindel, the PTC might find the fact that both of these amici are affiliated with the same non-governmental organization, Documentation Center of Cambodia (DCCam), to be of concern. The PTC, and the ECCC at large, would greatly benefit from finding out under what authority Dr. Sheffer and Ms. Heindel had incorporated a closed-to-general-public court document into their briefs and what and who had given these amici the authority to publish this otherwise undisclosed document on a website jointly owned by DCCam and the Center for International Human Rights of Northwestern University School of Law.

The sections of said briefs written in support of the prosecution, therefore, if allowed during the appeal hearing, will prejudice the rights of the accused and strip him off of the arguments in favor of release which could have been advanced, had the rest of the amici -- and particularly those who wrote in suppose of the accused -- been granted the same access to the defense’s motion for release as were Dr. Sheffer and Ms. Heindel.

I sincerely hope that the PTC will find a time and a venue to address the issues raised in this letter and find inadmissible arguments which had been advanced on the basis of unfair access to court documents to avoid a possibility of breaching the principle of equality of arms of the prosecution and the defense. By doing so the PTC will also be able to send a clear message of unacceptability of selective sharing of privileged information of the ECCC.


Stan Starygin

Stan Starygin: Amicus Curiae Brief

In The
Extraordinary Chambers in the Courts of Cambodia (ECCC)


Judicial Investigation Opened Against Kaing Guek Eav (alias ‘Duch’); Appeal of the Defense to the Pre-Trial Chamber (PTC)

No. 002/14-08-2006



Table of Contents

Interest of the Amicus Curiae 3
Statement of the Case 4
Issues Addressed by This Brief 6-7
Summary of Argument 8
Argument 9-20
1. Jurisdictional Positioning of the ECCC and Primacy of Law (Cambodian v. international) 9-11
2. Legality of Kaing Guek Eav’s Pre-ECCC Detention 11-20
2.1. Pre-ECCC Charges based on the People’s Republic of Kampuchea (PRK) Laws 12-14
2.2. Pre-ECCC Charges based on the ECCC Law 14-20
2.3. ECCC Charge based on the ECCC Law 20-21
Conclusion 21-23
Note 24

Interest of the Amicus Curiae

Amicus Curiae is Stan Starygin who, over the last few years, has conducted extensive research on the status of detention of Kaing Guek Eav vis-à-vis international and Cambodian law and examined the evidence amassed against him in support of the allegations which have been made against Kaing Guek Eav since his arrest in 1999. Amicus Curiae has conducted extensive legal research on the issue of procedural guarantees in Cambodian courts and their statutory construction at the national and international level. In this brief amicus curiae will present an examination of jurisdictional issues in Cambodian courts and deliver, among others, an argument as to the Extraordinary Chambers in the Courts of Cambodia (hereinafter ‘ECCC’)’s correlation with the jurisdictions of the regular domestic courts of Cambodia. Amicus Curiae will show how the outcomes of this argument may affect the current provisional (pre-trial) detention status of the detainee and pre-trial detention in Cambodia at large.

Statement of the Case

A criminal investigation of Kaing Guek Eav (alias ‘Duch’) was opened on 6 March, 1999 (case # 397) which resulted in the suspect’s arrest on 9 May, 1999. The arresting authority, on the next day, was quoted as saying that “charges might follow” . This was followed up by an order to forward case for investigation (# 029/99) on 10 May, 1999 arraigning Kaing Guek Eav by identifying him as “the director of the Toul Sleng Security Prison” and bringing a charge of “crimes against domestic security with the intention of serving the policies of the Democratic Kampuchea Group committed in Cambodia during the period 1975 to 1979”. Articles 2, 3 and 4 of the Law to Outlaw the Democratic Kampuchea Group (1994), and Article 7 of Decree Law 2 (1980) were cited as grounds for the charge. The Military Tribunal of Phnom Penh (hereinafter ‘MTPP)’s investigating judge responded to the order to forward for investigation with an order for further investigation (# 140) on the same day (10 May, 1999). The investigating judge issued another order for further detention three months after the issuance of the first one (31 August, 1999). Prior to the expiry of the maximum period of pre-trial detention allowable by law, a new law on temporary/pre-trial detention was adopted (26 August, 1999) which reaffirmed the stipulation of Article 14 of the Provisions Relating to the Judiciary and Criminal Law and Procedure Applicable in Cambodia during the Transitional Period (hereinafter ‘the UNTAC Law’) which limited pre-trial detention to four months and a maximum of six months with a reasoned opinion of the judge, but which added a new substantive category of crimes (genocide, war crimes and crimes against humanity) for which the period of pre-trial detention was extended to one year and a maximum of three years. The new pre-trial detention law created a framework in which the MTPP could substantively re-charge Kaing Guek Eav once every three years. Kaing Guek Eav was, thus, re-arraigned (re-charged) on 6 Sept, 1999; just short of the expiry date of the four-month period since he was first arraigned (the new law on pre-trial detention was not applied to this case at this time). At the second arraignment (Order to Forward for Investigation # 044/99), there was no reference to the first charge, and a new charge of genocide -- for which Decree Law 1 was cited as foundation -- was entered. Five months later, Kaing Guek Eav was re-arraigned (re-charged) again, this time on the basis of Articles 5 and 39 of the newly-adopted Law on the Establishment of the Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed during the Period of Democratic Kampuchea (2001) (hereinafter ‘ECCC Law’) and a charge of crimes against humanity (Order to Forward for Investigation # 004/02 of 20 February, 2002) which was promptly responded to by the investigating with a detention order (# 10/03/DK of 22 February, 2002). For the subsequent three years (2003, 2004, 2005) the investigating judge dutifully issued a new detention order on February 22, justifying every subsequent extension of the pre-trial detention of Kaing Guek Eav by the investigating judge’s intent to “carry out a good investigation”. Kaing Guek Eav was re-arraigned, yet again, in 2005 on a new charge based on Articles 6 and 8 of the ECCC Law and categorized as ‘war crimes [and] crimes against internationally protected persons’ (Order to Forward for Investigation # 004/05 of 24 February, 2005) with his pre-trial detention’s extension being effectuated by a detention order filed shortly after by the investigation judge (# 08/05 of 28 February, 2005). The investigating judges continued filing detention orders based on the charge in question and pursuant to the Temporary (Pre-trial) Detention Law (1999) (hereinafter ‘Detention Law’) in 2006 and 2007. The detainee was re-arraigned on the charge of crimes against humanity on 31 July, 2007 by the ECCC based on Articles 5, 29(new), 39(new) of the ECCC Law with two of them (5 and 39) being the same in substance as the charge of crimes against humanity issued against Kaing Guek Eav by the MTPP. This charge resulted in the issuance of a detention order which stipulated that detention pursuant to this order be “for a period not exceeding a year”. None of the previous charges levied against Kaing Guek Eav were mentioned in the latest-to-date order, nor were there any references to other laws than those within the corpus of the tribunal law (the ECCC Law + the ECCC Internal Rules (hereinafter ‘ECCC IRs’).

Issues Addressed by This Brief

There is one question that the Pre-Trial Chamber (hereinafter ‘PTC’) needs to answer at this stage of Kaing Guek Eav’s detention – whether his current pre-trial detention ordered by the Co-Investigating Judges (hereinafter ‘CIJs’) should be terminated.

As the issue of Kaing Guek Eav’s current and prior detentions is a complex one, its resolution will require a thorough examination into a wide range of underpinning issues. First, the PTC will have to test the CIJs’ assertion that the detainee is a flight risk and if released pending trial is prone to a. exert pressure on witnesses, b. be subject to acts that can compromise his personal safety, c. cause disruptions of public order. Second, the PTC will have to test the CIJs’ theory of the place which the ECCC occupies within the Cambodian judicial system which will contribute to the creation of the PTC’s test of the multiple theories of a nexus between the ECCC and the MTPP. Once the PTC’s nexus theory is established, the Chamber will be able to answer the question of whether a. the length and b. the legal basis, in whole or in part, of Kaing Guek Eav’s prior detention prejudices the interests of justice the ECCC was set up to uphold. Lastly, the PTC will need to test the relevancy of the precedents, national and international, cited by the CIJs in support of their arguments for continued pre-trial detention of Kaing Guek Eav.

This amicus has no way of determining whether the detainee is a flight risk, and if so, to what extent. Nor does he have access to the detainee to attempt to determine the latter’s mindset regarding any actions the detainee is liable to take, if released pending trial. This amicus will not engage in the discussion of a highly speculative matter of the general public’s reaction to Kaing Guek Eav’s release, either pending trial or as a result of termination of the proceedings against him, and the level of safety he might enjoy, if granted release on either basis. This amicus will not engage in a full-scale debate about the relevancy of the precedents cited by the CIJs as grounds for Kaing Guek Eav’s detention within the ECCC, except for questioning the CIJs’ utilization of national precedents and their relevancy to the proceedings at the ECCC and high-profile national precedents (such as Scott, Eichmann, etc) for the incorporation of which into the corpus of international law, and as of today, there is no agreement between legal scholars and stretching the limits of stare decisis . This particularly applies to the precedents cited by the CIJs which had been created prior to the coming into force of the International Covenant on Civil and Political Rights (hereinafter ‘ICCPR’) on which the defense, in part, bases its argument for release of the detainee.

This amicus’s contribution, therefore, will be limited to an examination of the jurisdictional issues which he believes fall within the ambit of the question of a nexus which may exist between the ECCC and the rest of the judicial system of Cambodia, particularly focusing on the existence of such a nexus with the MTPP, and an examination into the legality of Kaing Guek Eav’s prior detention and the impact it might have on the judicial system of Cambodia as a whole, if left unaddressed by the PTC.

Summary of Argument

This brief advances the following arguments and makes the following assertions: (1) the ECCC was established on the basis of a law adopted by Cambodian Parliament with the intent to operate as a specialized Cambodian jurisdiction within the existing structure of Cambodian courts; (2) Cambodian law has primacy in the ECCC jurisdiction, with international law playing a fallback role, thus, applicable in cases where Cambodian law is not clear or conflicts with established international standards of justice, (3) predicated on several factors the PTC has jurisdiction to examine Kaing Guek Eav’s pre-ECCC detention, (4) Kaing Guek Eav’s pre-ECCC detention was illegal due to the following: (a) the MTPP had no jurisdiction over Kaing Guek Eav, (b) the laws on which the pre-ECCC charges against Kaing Guek Eav were based either had been abrogated by the time of their application, or were specialized which should have prevented the MTPP from applying them, (c) no quality investigation was conducted by the MTPP during the 8 years of pre-ECCC detention to justify the excessive length of Kaing Guek Eav’s detention, (d) the successive extensions of the statute of limitations of the 1956 Penal Code prejudiced Kaing Guek Eav’s rights under Cambodian and international law, (4) the CIJs’ decision to re-introduce the charge of crimes against humanity against Kaing Guek Eav, although does not violate the principle of ne bis in idem substantially, puts him in jeopardy of detention twice for the same crime, the charge for which is based on the same law as previously.


1. Jurisdictional Positioning of the ECCC and Primacy of Law (Cambodian v. international)

The discussion of the nature of a tribunal for trying some of the members of the Khmer Rouge was opened by then First Prime Minister Norodom Rannaridh and Second Prime Minister Hun Sen sending a letter of request to the Secretary General of the United Nations (hereinafter 'UN') in 1997. Among other issues, the letter addressed the question of the nature of a tribunal the then Co-Prime Ministers of Cambodia were looking to establish. The key elements underpinning its nature were predicated on the request for this tribunal to be "international", further specifying that the foundation of the tribunal for which UN assistance was being sought was to be the same as that of "the International Criminal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR)" .

In 1999, the concept behind the 1997 request later changes to a request of UN assistance for a tribunal established within the Cambodian judicial system . On 2 August, 1999, Cambodia re-iterates its prior pronouncement about the nature of the tribunal for which UN assistance is sought, this time describing it as "a national tribunal". Later that month Prime Minister Hun Sen in his interview with a Japanese newspaper expands on the meaning of "national tribunal" and asserts that the proceedings will "be conducted by the existing courts of Cambodia and with the international assistance and participation of foreign judges and prosecutors included". This language resonates in the text of the agreement reached by the Royal Government of Cambodia (hereinafter 'RGC') and the UN (hereinafter 'Agreement'). Article 12 of the Agreement stipulates that "the procedure shall be in accordance with Cambodian law". This clause provides for a few caveats where the tribunal's jurists may resort to "procedural rules established at the international level". These exceptions are as follows: a. where Cambodian law does not deal with a particular matter, b. where there is uncertainty regarding the interpretation or application of a relevant rule of Cambodian law, c. where there is a question regarding consistency of such a rule with international standards. Article 33(new) of the ECCC Law re-iterates these principles and asserts that proceedings must be conducted "in accordance with existing procedures in force".

The aforementioned political pronouncements -- which later resulted in statutory language -- firmly establishes the ECCC as part of the Cambodian judicial system and grounds its proceedings on existing Cambodian law. It is clear from the language of the Agreement and the ECCC Law that guidance can be sought in procedural rules established at the international level only as a matter of last resort and after a fair consideration of the domestically established procedures. This rule was ignored by the CIJs in the Order of Provisional Detention issued against Kaing Guek Eav. The CIJs misread the language of Article 12 of the Agreement which they believe "expressly states that the Extraordinary Chambers shall exercise their jurisdiction in accordance with international standards of justice" as to construe this part of the text as a statement of primacy of international law, similar to that adopted earlier by Security Council- established international criminal tribunals. This argument is untenable for two reasons. One, the manner in which Article 12 was constructed was to place the provision relevant to establishing the primacy of Cambodian law in the first paragraph of this article which opens with "the procedure shall be in accordance with Cambodian law". This demonstrates the intent of the drafters to secure the primacy of Cambodian law in the functioning of the ECCC. Two, Article 12's deference to "the international standards of justice" is not as comprehensive as the CIJs intended to lead us to believe. In fact, the language of this paragraph of Article 12 clearly refers to the international standards of justice as they are enshrined in Articles 14 and 15 of the ICCPR, thus, effectively limiting the substantive scope of the "the international standards of justice" clause, for the purposes of the functioning of the ECCC. This serves as a clear indication of the hierarchy of laws intended to be established by the ECCC Law and the Agreement, which puts Cambodian law in the position of primacy and leaves international law the position of supplementarity .

Jurisdictionally, the CIJs assert that the ECCC had not been acting "in concert with the military court [MTPP]" since the former "only became operational on 22 June, 2007". The Cambodian law, upon which the jurisdictional aspect of the ECCC is predicated, does not provide for an exemption from the burden of resolving the issues of prior detention in another national jurisdiction. In fact, courts in Cambodia are vested with the same authority – and presumably responsibility – under existing laws . This amicus, therefore, maintains that no valid argument, whether based on statute or precedent, can be made to support the CIJs' contention that the ECCC has no jurisdiction to examine Kaing Guek Eav's prior detention ordered by the investigating judge of the MTPP. In addition, it is critical to note that none of the precedents cited by the CIJs in the Order of Provisional Detention issued against Kaing Guek Eav are grounded on cases which reflect a similar jurisdictional pattern to that in which the ECCC operates – a special court with international participation within a national jurisdiction .

2. Legality of Kaing Guek Eav's Pre-ECCC Detention

Before engaging in a full-scale discussion of Kaing Guek Eav's pre-ECCC detention, it is important to note that its entire length was due to the expectation of the establishment of the ECCC, a process fraught with numerous delays caused by factors unrelated to the Cambodian judiciary or the detainee . The purpose of this detention had been corroborated by some of the top RGC officials prior to the establishment of the ECCC . The two detainees, Kaing Guek Eav and Ung Choeun, had, for an extended period of time, served the purpose of insurance to the international community that the RGC would be able to deliver potential defendants, if the ECCC was to be established. Had this not been the case of awaiting the establishment of the ECCC, the detainee would have been tried by a national court with jurisdiction to act in such a manner. Prior to the adoption of the ECCC Law, there had been nothing preventing a national court from trying Kaing Guek Eav. This is a well-established factor which is known to the community. It will be an exercise in futility, if the ECCC attempts to continue ignoring it.

2.1. Pre-ECCC Charges based on the People’s Republic of Kampuchea (PRK) Laws

Throughout his pre-ECCC detention Kaing Guek Eav had been charged on the basis of the following laws adopted by the different regimes which ruled Cambodia between 1979 and 1999: Decree Law 1 (1979) (to established the People's Revolutionary Tribunal (hereinafter 'PRT') adopted by the People’s Republic of Kampuchea (hereinafter 'PRK’), Decree Law 2 (1980) (criminal code of the PRK), and various articles of the ECCC Law (2001; amended in 2004). Below is the individual treatment of the aforementioned laws.

Decree Law 1, the basis upon which Kaing Guek Eav was charged with genocide, was adopted in 1979 by the then newly-formed PRK, and with in the intention of establishing a tribunal to prosecute 'the Pol Pot-Ieng Sary Clique (Gang)' for the crime of genocide. The term genocide was defined in Article 1 of Decree Law 1 as

"planned massacres of groups of innocent people; expulsion of inhabitants of cities and villages in order to concentrate them and do hard labor in conditions leading to their physical and mental destruction; wiping out religion; destroying political, cultural and social structures and family and social relations"

This definition conflicts with the definition of genocide in Article 2 of the Convention on the Prevention and Punishment of the Crime of Genocide (1948) (hereinafter 'Genocide Convention') where it is defined as

"any of the following acts committed with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) killing members of the group, (b) causing serious bodily harm to members of the group, (c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part, (d) imposing measures intended to prevent births within the group, (e) forcibly transferring children of the group to another group".

Since Cambodia ratified the Genocide Convention in 1950, the only valid definition of genocide in Cambodian law has since been that of the Genocide Convention. The passage and subsequent enforcement of any law, therefore, which provides for a definition inconsistent with that of the Genocide Convention, must, therefore, be deemed as null and void. This makes Decree Law 1 null and void and inapplicable to Kaing Guek Eav's pre-trial detention.

Decree Law 2 was adopted by the PRK in 1980 as the regime's criminal law, which predominantly criminalized a variety of "acts against the revolution" . The revolutionary course predicated on Marxism-Leninism taken by the PRK was abandoned at the Cambodian People's Party's congress on 17-18 October, 1990 . Decree Law 2, or any other law adopted by the PRK, never established a statute of limitations for the acts it criminalized, which makes it impossible to know the period of time for which offenses falling under "crimes against domestic security with the intention of serving the policies of the Democratic Kampuchea Group" could be prosecuted. What is well-known is that the new criminal law, as part of the UNTAC Law, effectively abrogated "any text, provision, or written or unwritten rule which is contrary to the letter or the spirit of the present text" . Decree Law 2 clearly violates both the letter and spirit of the UNTAC Law, for which reason it was effectively abrogated in 1992, if not earlier and pursuant to other legal arguments which might be advanced to this effect. Considering the fact that at the time of bringing of the relevant charge against him in 1999 the UNTAC Law was still in force – as it is at the writing of this -- Kaing Guek Eav could not have legally been arraigned and detained on the basis of Decree Law 2.

2.2. Pre-ECCC Charges based on the ECCC Law

Charges brought against Kaing Guek Eav based on the ECCC Law although numerous do not merit separation, for the purposes of this brief, and can be addressed as a group.

The four articles upon which ECCC Law-grounded charges were based are Articles 5 and 39, and 6 and 8. These articles establish subject-matter jurisdiction of the ECCC to deal with crimes against humanity, war crimes and crimes against internationally protected persons, respectively. The issue that the PTC needs to address here is by what authority the MTPP was utilizing provisions of the law -- which had been adopted to establish the legal foundation for the creation of the ECCC -- to make charges against Kaing Guek Eav.

This amicus maintains that there is no authority, explicit or implicit, to utilize any provisions of the ECCC Law by any other national tribunal that can be derived from the legislative intent or the written text of the ECCC Law. It is plain to see the law establishing the MTPP (the UNTAC Law) specified that it only had jurisdiction over military offenses which are defined in the law as “[…] those involving military personnel, whether enlisted or conscripted” and two deal with two types of offenses – “discipline within the armed forces” and “harm to military property” . It is evident from this provision that for the MTPP to establish jurisdiction over a person, the person in question had to be enlisted or conscripted in the Royal Cambodian Armed Forces (hereinafter ‘RCAF’), which did not include the Democratic Kampuchea units at any given point before or after Kaing Guek Eav was an officer in the latter. The issue of jurisdiction of the MTPP is so plain in Kaing Guek Eav’s case that it merits no further investigation, and would have failed the probable cause test , if such a test was administered. This amicus, thus, contends that the MTPP acted in violation of Article 11 of the UNTAC Law, and its specific pronouncements which beyond a reasonable doubt placed Kaing Guek Eav outside its jurisdiction.

The MTPP, in addition, acted illegally by utilizing the ECCC Law to bring charges against Kaing Guek Eav since the ECCC Law was adopted with the creation of a special court in mind, which expressly limited its application to the ECCC.

The CIJs aver that the ECCC has no obligation to examine the pre-ECCC detention of Kaing Guek Eav simply because the ECCC did not collaborate with the MTPP and the charges had been made before the ECCC was established. This is not good enough. This amicus believes that the sheer use of the ECCC Law by the MTPP to detain a person with the intent for the latter to be later transferred to the ECCC for further detention is in itself a nexus requisite for the PTC to address this issue at this early stage of the proceedings.

This amicus asserts that had there been no intention to establish the ECCC at the time of the arrest of Kaing Guek Eav, the judicial system of Cambodia would have dealt with him in a much more expeditious manner than it in fact did . The system would have had no reason to keep Kaing Guek Eav in pre-trial detention for 8 years, which would have likely resulted in a speedy trial or, in the worst case scenario, a trial within the average length of pre-trial detention currently maintained by Cambodian courts . In conclusion, without engaging in a discussion of the substantive aspects of the four aforementioned articles of the ECCC Law, this amicus contests the MTPP’s jurisdiction to avail itself of the ECCC Law and believes that the PTC is now in a position to address this issue and its corollaries.

The next issue to address in this section is that of the extension of the statute of limitations enshrined in the 1956 Penal Code “to an additional 30 years” since the commission of the alleged acts. The original version of the ECCC Law, adopted in 2001, contained an extension of the statute of limitations of the 1956 Penal Code to “an additional 20 years”, during which the drafters were hoping the ECCC would be established and the alleged crimes tried. This was not to be. The drafters then went back and amended the ECCC Law by extending the statute of limitations to “an additional 30 years”. This type of action by the legislature is atavistic, as it goes the very grain of the statute’s objective to provide “finality and predictability” . The US Supreme Court, defining ‘statutes of limitations’, said that “statutes of limitations, like the equitable doctrine of laches, in their conclusive effects are designed to promote justice by preventing surprises through the revival of claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared” . No finality and predictability can be established in cases where the legislature takes the liberty of extending the duration of a statute of limitations in anticipation of a particular event (in this case the establishment of the ECCC), rather than to ensure fairness of the proceedings. This practice, therefore, becomes inimical to the very substantive core of the statute of limitations and adversely affects the accused’s right to due process. In Kaing Guek Eav’s case, the PTC will predictably find itself between the rock and a hard place, as it will have to answer a host of preliminary questions before it can address the substantive issue of the extension of the 1956 Penal Code’s statute of limitations for homicide, torture and religious persecution in the 2001 ECCC Law and its 2004 amendment. At the heart of the issue lie questions such as (1) is the extension of the 1956 Penal Code’s statute of limitations a political question? (2) although courts routinely are barred from answering political questions, can the PTC take the politics of the issue into consideration? (3) if the PTC finds it within its purview to answer take political issues into consideration, a certain degree of limitation, can the PTC answer this question? (4) is the PTC bound by decisions of the Cambodian Constitutional Council (hereinafter ‘CC’) which found the extension of the statute of limitations in question constitutional ? (5) can the PTC overrule the CC’s decision, modify or ignore it? (6) what is the relationship between the CC and the PTC, and the ECCC at large?

The last issue is that of the MTPP filing, in most cases, substantively new orders to forward for investigation every time the previous order was about to expire or had already expired. Over an 8-year period the prosecution filed charges of ‘crimes against domestic security’, ‘genocide’, ‘crimes against humanity’, one by one and over extended periods of time, and ‘grave breaches of the four Geneva Conventions’ combined with ‘crimes against internationally protected persons’. Without resorting to a discussion of the substantive aspects of these charges, there are two questions which need to be answered: (1) what prevented the prosecution from filing all these charges at the same time and in the same order to forward for investigation and (2) on what factual and merits-related foundation were the MTPP investigating judge’s detention orders based when, starting 2001, they were extended for the maximum period allowable by law, 3 years.

This amicus is convinced that, as to question (1) there were no justifiable reasons for the prosecutors that would prevent the MTPP prosecutor from filing all the charges at the same time. This amicus is willing to entertain an argument that the ECCC Law had yet to be drafted and adopted at the time of filing of the original charge, which prevented the military prosecutor from knowing its contents and, thus, forming relevant charges. This argument, although not without foundation, is not that of strength, as the laws upon which the ECCC Law-based charges would be predicated had been adopted long before the filing of the first charge against Kaing Guek Eav and were entered in the corpus of customary international law by then. The prosecutor of the MTPP, thus, had no reason to wait for the adoption of the ECCC Law to file the additional charges. There is no question in this amicus’s mind that regardless of the above argument, the first and the second charges filed against Kaing Guek Eav and predicated on Cambodian law could have been filed as one charge, which would have cut down the period of Kaing Guek Eav’s pre-trial detention since it is the filing of the detention order that starts the clock, and not the number of charges it is based upon.

As to question (2), there have been no references to any investigative work done by the military investigating judge who had ordered detention in all cases when Kaing Guek Eav was charged. There were no pronouncements made to the general public of the existence of any factual findings garnered by these investigating efforts which raise the issue of due diligence. Detention orders based on the same charge, nevertheless, were extended year after year to reach the maximum of 3 years allowable by law in cases of genocide, war crimes and crimes against humanity, accompanied by a reference that every subsequent detention was necessary “to conduct a good investigation”. 8 years of reported investigative work should have manifested themselves in a wealth of evidence relevant to the charges for which the investigations were ordered. The PTC, as a part of the Cambodian judiciary and dealing with the same person accused of the same crime (crimes against humanity is an overlapping charge between the MTPP and the ECCC), can subpoena the results of these investigations and examine their contents further to establish whether the principle of due diligence was violated.

This amicus finds -- although he is not in possession of any direct evidence -- that all circumstantial evidence attests to an assertion that no investigative work worth 8 years in the opinion of a reasonable person had been performed by the investigating judge of the MTPP throughout the entire 8-year period of detention of Kaing Guek Eav. This shows that the MTPP was merely implementing a political decision while employing judicial means to do so. This, if found by the PTC, will amount to a violation of the detainee’s right to due diligence.

Besides, the MTPP’s clear violation of Cambodian law, the court’s behavior also came into conflict with the rules established at the international level which Cambodia had promised to “recognize and respect” in its constitutional text and by ratifying individual instruments. One of such instruments is the International Covenant of Civil and Political Rights (hereinafter ‘ICCPR’) which set the minimum guarantees to be afforded to persons in criminal cases. The MIPP, this amicus argues, had, thus, violated Kaing Guek Eav’s right to be tried without undue delay enshrined in Article 14(3)(c) of the ICCPR. This amicus contends that Kaing Guek Eav’s detention continuously ordered by the MTPP exceeds, in its sheer length, the intent enshrined in the ICCPR under ‘undue delay’, regardless of the fact that there is no clear numerical statutory definition of ‘undue delay’ available at the international level .

2.3. ECCC Charge based on the ECCC Law

Under the Order of Provisional Detention issued against Kaing Guek Eav by the CIJs, he was charged with “crimes against humanity, crimes set out and punishable under Articles 5, 29(new) and 39(new) of the [ECCC Law]. This charge is problematic in this particular person’s case considering the history of his prior detention. The core of the problem here stems from the fact that Kaing Guek Eav had already been charged with the same crime for which the same articles of the same law were cited as foundation. Furthermore, this charge had already resulted in three detention orders (2002, 2003, 2004; see ‘Statement of the Case’ of this brief for more details), which, in turn, had resulted in 3 years of pre-trial detention of this charge, the maximum allowable by the 1999 Law on Pre-Trial Detention (hereinafter ‘Detention Law’). This amicus finds no modification in the content of the charge that would allow the CIJs to argue that this indeed is a new charge in one or several of its elements. When the charge was first entered, the MTPP had 3 years of an opportunity to prosecute Kaing Guek Eav on the basis of this charge which it, this amicus believes, purposefully (see ‘Pre-ECCC Charged Based on the ECCC Law’ of this brief for more details), squandered. The language of the Detention Law does not provide for a possibility of detaining the same person on the basis of the same charge in different jurisdictions of Cambodia. Instead, the Detention Law for a single detention “in any circumstances […] not exceeding 3 years in total”. This amicus, as he is convinced the PTC, is aware of the Rome Statute of the International Criminal Court (hereinafter ‘the Rome Statute’)’s position on the question of ne bis in idem, or double jeopardy, which the Rome Statute stipulates be limited to cases in which a conviction or acquittal was secured , and even if a mistake of fact or law was found in dealing with such it does not constitute “a ground for excluding criminal responsibility unless it negates the mental element required by the crime” . This amicus, therefore, does not intend to argue that the CIJs’ re-introduction of a charge which had been brought prior and against the same person is so grave that it prejudices his position vis-à-vis the ne bis in idem protection, but merely asserts that the charge’s procedural aspect must be separated from its substantive aspect. By this token, although it would be within the bounds of the applicable law to continue the ongoing investigation of the allegations filed by the Co-Prosecutors (hereinafter ‘CPs’) on their respective merits, it will be in breach of the applicable law to continue the detention ordered by the CIJs on 31 July, 2007. This detention, if allowed to go on by the PCT, will put Kaing Guek Eav in jeopardy of detention twice -- although without violating the principle of ne bis in idem substantially -- for the same crime, the charge for which is based on the same law and to which the same procedural rules apply.


The PTC has a daunting task before it: resolving the issue of detention which was ordered 8 years before the establishment of the institution of which it is a part, and which was ordered for the crimes allegedly committed 30 years ago. The solution the PTC is currently seeking will have to strike a balance between the interests of justice for alleged heinous crimes and the rights of a detainee with the prosecutors and co-investigating judges arguing that release of the detainee pending trial will adversely affect the proceedings, and the defense arguing prejudice against the rights of their client.

This brief set out to analyze and provide, in some cases, statutory construction for substantives laws, rules and procedures which have been used as grounds for Kaing Guek Eav’s detention throughout which this amicus offered a wide range of insights. Some of the highlights of these insights for the PTC to consider are (1) the assertion of this brief the ECCC is a part of the Cambodian judicial system and, therefore, is linked to other jurisdictions within this system, such as the MTPP, (2) the contention that the PTC, thus, has jurisdiction to examine the pre-ECCC detention of Kaing Guek Eav, (3) that the laws upon which the detainee was arraigned and detained prior to the establishment of the ECCC had, by then, been abrogated, or were not compliant with Cambodia’s international obligations, or were adopted with the intent to be applicable to the proceedings before the ECCC only, and not other jurisdictions, (4) the length of the pre-ECCC detention is excessive and its justification by the MTPP through its intention to “conduct a good investigation” is without foundation, (5) the length of Kaing Guek Eav’s pre-trial detention is excessive by international standards and prejudices against the rights of the detainee, which are protected by the erga omnes obligations of the Cambodian state, (6) the CIJs’ ordered detention on 31 July, 2007 was ordered on the basis of the same offense, based on the same law predicated on which a prior detention had been ordered and exhausted the maximum duration of its statutory run.

This amicus concludes that two factors merit Kaing Guek Eav’s release pending trial: (1) the amount of erroneous decisions of application of law made against him and (2) the fact that he already was once pre-trial detained on the basis of the same crime, enshrined in the same law, the detention which had exhausted its maximum statutory run. This amicus has had, throughout this brief, no intention to argue for a release for procedural error, as he feels that the gravity of the current charge against Kaing Guek Eav, in this case, may not be outweighed by the cumulative amount of errors of law made by the MTPP and the ECCC up to this point. It is, thus, recommended that Kaing Guek Eav be released pending trial and on the basis of the two aforementioned factors. The PTC can impose conditions of such release which may include, but not be limited to 24-hour surveillance, a written promise to appear at trial, a written promise to maintain a permanent address, a bail bond, etc. With this said, the PTC will still have to make a determination about the foundation of the grounds for detention filed by the CPs and upheld by the CIJs, such as whether the detainee is a flight risk, what the general public’s reaction to his release might be, and any action the detainee is liable to take to tamper with the evidence against him – all of which fall outside the scope of the analysis undertaken by this brief, but are, nonetheless, integral to the answering of the question of release of the detainee.

This amicus is convinced that whichever of the above arguments the PTC chooses to utilize, it is aware of its historic mission not only to participate in the adjudication of cases of select members of Democratic Kampuchea, but also the impact which its decision will have on the progress of the legal and judicial reform in Cambodia. The PTC at this stage has a chance to contribute to the ending of the culture of impunity by sending a message that the law will rule regardless of what political ambitions and agendas may be behind the prosecution of particular individuals by this court or any other court in the nation.

Submitted 27 September, 2007

Stan V. Starygin


This amicus doubtless appreciates the PTC’s decision to avail itself of its authority under Rule 33 of the ECCC IRs to solicit amicus curiae briefs from non-governmental organizations and members of the public. However, considering the fact that Rule 33 does not provide for a definite timeframe in which briefs must be produced and submitted, thus, leaving it up to the judges to determine time limits which may apply, it is recommended that the current time limit of 30 days be reconsidered for the purposes of such future solicitations. One reason which may substantiate said reconsideration is that of some of the amici responding to such solicitations may not necessary operate, for the purpose of the solicitation, within the framework of an established organization or any other infrastructure-providing structure, and might be limited in the amount of hours they can contribute weekly to such endeavors. This might, in some cases, prejudice the quality of material submitted to the PTC or completely work against potential contributors’ intention to produce such briefs. With this in mind, it is, thus, requested that the current time allowance be doubled.

Tuesday, October 9, 2007

Sary Next?

AP: Ieng Sary Fears He's Next for Tribunal

Chiep Mony, VOA Khmer
Original report from Phnom Penh
08 October 2007

Former Khmer Rouge leader Ieng Sary told the Associated Press Sunday he believes he'll be the next man indicted on atrocity crimes by the Khmer Rouge tribunal.

Arriving in Bangkok for a health check-up Sunday, Ieng Sary said he had done "nothing wrong" as foreign minister and deputy prime minister of the regime.

"I am a gentle person. I believe in good deeds. I even made good deeds to save several people's lives [during the regime]. But let [the tribunal] find what the truth is," Ieng Sary told the AP.

He arrived being pushed in a wheelchair and said his heart "was not functioning well following previous surgeries," the AP reported. "My health is my big concern now."

Youk Chhang, director of the Documentation Center of Cambodia, told VOA Khmer Monday Ieng Sary had been documented as a high-level member of the regime.

The Khmer Rouge tribunal has yet to act on three confidential names provided by prosecutors.

Tribunal spokesman Reach Sambath said Monday the courts were processing these names "every day."