PTC on the Most Important Questions Raised by the Defense and Some Amici

Editorial

Stan Starygin

There was a hope that the PTC might be able to clarify the meaning of "the right to remain silent at all stages of the proceedings". The Chamber, instead, pointed out the waiver signed by the defendant and refused to look into the matter of interpretation of said right.

On the question of the nexus between the ECCC and the MTPP, the Chamber applied what is known as "the agency test" and found no satisfactory arguments to satisfy this test. The agency test applied does not conform to the International Court of Justice (ICJ)'s agency test in Nicaragua and seems to be an invention of the Chamber. The Chamber referred to Prosecutor v. Taylor as authority on their arguments of the non-existence of a nexus between the ECCC and the MTPP, if not the test itself (The Taylor decision can be viewed at http://www.sc-sl.org/taylor-decisions.html) PTC hinged the rest of its argument upon the judges' assertion that the ECCC judges cannot serve in regular Cambodian courts and were appointed to the ECCC based on their prior experience in international law.

Inadvertantly -- at least I believe so -- the PTC answered an unsolicited question, which is when the ECCC's time must be counted as 'operation of the court' and named the date when the judges were sworn in as the official date of the inception of the court (3 July, 2006). This might put a bit of a rush on the tribunal to finish up its work as under this determination of the Chamber, the court has already served exactly half of its mandate and, as of today, has only a year and a half left to go.