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”
by Stan Starygin
The next blooper of an argument advanced by the PTC was that which was designed to answer the question of a nexus between the ECCC and ordinary Cambodian courts. To this end the PTC predominantly relied upon the fact that “the Internal Rules and Cambodian law do not give any jurisdiction to the Co-Investigating Judges and the Pre-Trial Chamber to rule upon any matter related to decisions or actions of the investigating judges of the Military Court”. The Chamber then went into an argument of dubious quality drawing upon the alleged differences between judicial qualifications mandated by the ECCC as opposed to those of the ordinary Cambodian courts throwing this argument into a complete stupor by stating that “the foreign judges would not normally qualify for appointment within the Cambodian court structure as they have no general training in Cambodian law”. Considering that the Chamber is well-aware of the stipulation of the ECCC Law that these proceedings be grounded solely on Cambodian law – with the Law’s leave to seek guidance in the rules established at the international level only when and if Cambodian law contradicts the rules of international law and in cases where Cambodian law does not regulate a particular area as a whole – what inferences should the general public make of the participation of foreign judges in this process based on the above statement? Is the Chamber trying to say that the foreign judges of the ECCC due to their lack of “general training in Cambodian law” are not competent to participate in these proceedings as they do not have to offer much more than “experience in international criminal law, including international humanitarian law and human rights law”? If that is the extent of the reach of the international judges of the ECCC into the matters of Cambodian law, why then was there no conscious effort made by the UN to attempt to attract foreign lawyers with the knowledge of Cambodian law to sit as ECCC’s international judges? For the purposes of this argument the PTC clearly uses this assertion of its own creation to buttress its argument on the absence of any nexus between the ECCC and the Military Court, however, does this mean that we will be hearing the lack of “general training in Cambodian law” being used as a crutch further in the PTC’s forthcoming arguments on other detainees’ appeals? The Chamber further invoked an extremely unfortunate reasoning of the Special Court for Sierra Leone (SCSL) in Taylor where the SCSL’s Appeals Chamber relied on a thin-air argument invoking abstract and highly argumentative notions of “the will of the international community” in response to the defense’s contention based on technical matters of the law. Perhaps the weakest leg of the argument of the absence of a nexus between the ECCC and the Military Court was its last one. This was an argument designed to respond to the material evidence -- a Military Court-generated document -- of the nexus which the defense had argued emanated from the Military Court. A reasonable person would have expected the PTC to probe into the matter and at least attempt to find out how such a mysterious document could make it into Duch’s case-file without anyone involved volunteering any relevant information to shed the light on the matter. A reasonable person, perhaps, would have surmised that the Co-Prosecutors’ position on the absence of a nexus was not as ironclad as it might have seemed to the PTC, if there had been a documentary exchange between the two courts. The PTC instead went ahead and invalidated the argument – this time without even bothering to produce a counterargument – by merely asserting that “the way in which the document came into the file has not been disclosed, and on its face does not provide any proof of a link between the ECCC and the Military Tribunal or demonstrate that the Military Court and the ECCC acted in concert in any way whatsoever in detaining the Charged Person for the whole or any part of the period in excess of eight years.” The PTC, thus, solely disregarded the undeniable fact that Duch had gone directly from the custody of the Military Tribunal to the custody of the ECCC without being released in the interim. If the Military Tribunal had formally released Duch and he was re-arrested by the ECCC just 5 minutes later, the above argument of the ECCC, perhaps, would have carried a little more weight. This, however, was never done and there is a document authorizing Duch’s transfer to the ECCC signed by the Military Court. This fact is undisputed and the ignoring of its merits by the Chamber put a large blemish on the PTC's quality of legal reasoning which the Chamber can be rest assured has been noted the legal community watching the proceedings.