PTC: This Is What Is Likely to Happen

Editorial

Stan Starygin

Now that the two-day duel between the prosecution and the defense in Kaing Guek Iev’s bail appeal hearing is over, the Pre-Trial Chamber (PTC) judges will be determining the value of the evidence and arguments presented and balancing the both against the interests of justice. Although no specific date was set for the judicial decision to be published, it is likely to happen before the onset of the Western holiday season, as the international judges of the PTC – as well as other international stakeholders involved -- are likely to be headed back to their home countries around that time. Another benchmark that the PTC judges will have to try to meet is that of the commencement of trials in the early months of 2008 which will enable the tribunal, as a whole, to send a message out there that the process is firmly underway, thus, helping the Office of Administration’s efforts of securing additional funding to bridge the current budgetary shortfall. With this said, this time around the judges are not likely to have the luxury of time which they had taken to thrash out the internal rules of the court and if deliberations in the chamber, nonetheless, span over a period comparable to that of the internal rules, it will negatively reflect upon the court’s image of its ability to make a decision within a reasonable period of time and might make some potential funders – like the United States, for example – snap their wallets closed.

The issue of granting Kaing Guek Iev his request of bail is likely to be a contentious one with the Cambodian judges standing firmly on denial – for political reasons rather than those of their assessment of the value of the evidence and arguments presented – and international judges toying with the idea of achieving the unthinkable – ruling against the Military Tribunal of Phnom Penh's actions against the accused and asserting that it had violated Kaing Guek Iev’s rights to the level of gravity which amounts to ‘abuse of process’. Provided the PTC’s international judicial wing comes to an agreement on the matter, it will have a tough job of securing the vote of at least one Cambodian judge to form an opinion of the court. If such a scenario does play out, it will doubtless write a first chapter in the legacy of the ECCC and make a firm statement that abuse of process will not be tolerated by this tribunal regardless of what the merits of a particular case might be. On the other hand, it will further undermine the already razor-thin credibility of Cambodian courts and show that the Cambodian judicial process is miles away from the stipulations of the international instruments Cambodia has acceded to. The international judges will weigh the benefits of upholding the principles of international law against the possibility of bringing the Cambodian judicial system into further disrepute, enraging the Cambodian government and alienating their Cambodian colleagues, and rule in favor of a continued detention of Kaing Guek Iev.

We, of course, at this point have no way of knowing exactly what’s going to happen, but this is what is likely to happen.