Editorial

Stan Starygin

Tomorrow, 3 December, 2007, the Pre-Trial Chamber (PTC) will be answering a series of long-awaited procedural questions throughout the afternoon. PTC has a tremendous responsibility of getting this decision -- and most importantly its underpinning reasoning -- right, as it will be watched by many in the legal profession and the laity. Intricate issues of the law notwithstanding, the most important question for the defendant and his family will be whether the Chamber will order his release, while the alleged victims -- and their families -- of the institution he presided over will want to see the court justifying their concerns about his release and, thus, ordering continued detention.

No one but the judges, of course, at this point know how the court is going to come out on this issue tomorrow. One contributing factor to this decision is clear, though -- it was made very quickly and the high standard of supermajority must have been met which resulted in the swift scheduling of tomorrow's session. As it is unlikely that the Cambodian judges agreed to grant bail, this means that the international judges -- or at least one of them -- agreed to deny bail to the defendant. Had it not been the case, the deliberations probably would have continued far into December.

Relatively clear as the outcome might seem at this point, the PTC will still have a host of questions to answer that might be of interest to criminal lawyers. These include -- but unlikely be limited -- the contentions of abuse of process which were voiced by the defense and the amici who wrote in support of the defendant. It will be most instructive to see whether the court side-steps the question of the nexus between the Military Tribunal of Phnom Penh (MTPP) and the ECCC -- which the defense glibly based on the transfer order issued to transfer custody over Kaing Guek Iev from the MTPP to the ECCC -- or chooses to address it.