Quality and Potential Effects of the Pre-Trial Chamber (PTC)’s Assertions in the Decision on Appeal Against Provisional Detention of Kaing Guek Eav

Quality and Potential Effects of the Pre-Trial Chamber (PTC)’s Assertions in the Decision on Appeal Against Provisional Detention of Kaing Guek Eav alias “Duch”

Assertion 1

by Stan Starygin

I wrote on some of the aspects of the PTC’s first decision in the immediate aftermath of its public pronouncement and to a certain degree since. In these posts, I will be trying to address and reflect upon a large number – if not all and over a period of time starting today – of issues associated with this decision and which I believe to be worth discussing further as the tribunal proceeds.

The decision opened up with a preamble in which the PTC stated that “the significant interest in the proceedings and the need for members of the public, without legal training, to understand and appreciate the meaning of this decision, and writing in a style reflecting this need”. Generally, writing decisions that can be understood by most members of the general public is a lofty and noble cause which adds value to the principle of ‘people’s justice’. The pronouncement of this sort, however, is not sufficient in itself, but it is (1) the court’s significant efforts and (2) reason to believe that these efforts will achieve the objectives to attain which they were created. To achieve these ends, the creation of a methodology of delivery of such decisions might be in order. PTC pointed out that it was writing a decision in a style that would be understandable to the public without legal training. It is not clear what ‘without legal training’ meant for the purposes of this decision. Did it mean that the language of the decision was adjusted to be comprehensible to anyone who had received no legal education prior to the issuance of the decision? Did it mean that the language was simplified to accommodate the comprehension needs of with an education, but not necessarily legal education? Did it mean the decision was made to be understandable to anyone who was capable of reading the Khmer, English or French languages to a reasonable degree? By ‘legal training’, did the PTC mean ‘legal training’ by the standards of the developed world or did they mean any type of legal training? Was the PTC referring to formal legal training in the phrase ‘without legal training’? All these questions need answers, which the PTC chose not offer. Another issue here is that of methodology, as discussed above. Did the PTC exert significant efforts to determine the level of understanding of legal issues by an average Cambodian? If so, what specific methods were used to gauge this level and based upon what study (ies) – undertaken by the PTC or an external contractor -- was it determined? Did the PTC make an effort to determine this level by reaching out to the institutions of legal learning of Cambodia? If so, what were these institutions and what were their recommendations? If none of these were accomplished – or at least attempted – what exactly gave the PTC “reason to believe that these efforts will achieve the objectives to attain which they were created” or the language of the Chamber “understand and appreciate the meaning of the decision”? Since I was skeptical from the second I heard this pronouncement that any tangible efforts had been undertaken – which were only reinforced when I heard the language (in its English translation) – and subsequently read it when it was publicized – of the text of the decision – I decided to undertake a little study of my own to see if my gut feeling was correct. I then showed the text of the decision (in Khmer) to officers of several police units we work with and solicited any response as to the contents they might have. They all told me they could not understand much of what was in the decision. I then incorporated the decision into the chapter on legal reasoning which I was at time – and am now – teaching to my Cambodian law students and asked whether the text of the decision was fairly simple and understandable. They seemed to have been able to understand more than the police officers, but still found it difficult to follow. These two inquiries showed me that not only did the PTC fail to meet the threshold of comprehension of those “with no legal training”, but equally failed to get through to those Cambodians who have received or are receiving legal training, and even legal education. This is not to say that the text of the decision cannot be taught to law students, police officers and others, it is merely to point out that the PTC’s assertion that the style of the decision is conducive to its understanding and appreciation by persons with no prior legal training is farfetched at best. Put another way, this assertion seems – barring the appearance of information to the contrary – largely unfounded, unresearched and manifestly flawed. I, too, compared the language of the text of this decision to the various texts produced by the ICTY, the ICTR and the US Supreme Court and found no significant differences in style which the PTC claims to have introduced.

My treatment of other parts of the decision will be appearing on this blog in the coming days.