Quality and Potential Effects of the Pre-Trial Chamber (PTC)’s Assertions in the Decision on Appeal Against Provisional Detention of Kaing Guek Eav
By Stan Starygin
In its test of “the conditions that have to be met Rule 63(3) of the Internal Rules", the PTC, inter alia, points out that “1.7 million Cambodians died [during the reign of power of Democratic Kampuchea] “which approximately was one quarter of the population at the time”. This is an interesting assertion which purported to invalidate all other population deathtoll numbers generated by the precedings decades of independent and governmental research. PTC failed to indicate that there is a large disparity between these numbers (Michael Vickery, for example believes that this number is nowhere in excess of 800,000, whereas Craig Etcheson maintains that it is anywhere between 2.2 and 2.5 million of those perished, and finally the research conducted by the government of the State of Cambodia generated a much higher number of 3.3 million persons) and most importantly different causes of death different researchers argued had resulted in these deaths. Considering the debate around the number of the deceased and the causes of which these persons had perished had been raging for decades in the scholarship on the Khmer Rouge, there had been a reasonable expectation that a Khmer Rouge Tribunal, if ever attempted again (post its 1979 predecessor) would establish an accurate number of the deceased through methods which might have been out of the reach of the researchers at the time they did their respective research. These methods were expected to include the cutting-edge methods of modern pathology which has come a long way since the 1970s and which mostly recently has experienced advances nothing short of revolutionary. What we saw in this decision instead is the PTC adopting the number which had been championed by Documentation Center of Cambodia (DCCam) and which is not based upon the cutting-edge methods of pathology, nor does it reconcile the disparate reviews of the researchers in the field. This sloppy approach to a very important matter, therefore, does not do justice either to the victims or the persons in the dock. PTC might argue that it had no means of launching another study of the matter, nor did it possess the requisite capacity to do so. I would fully concur. However, if this was the case, then any mention of an exact number of those perished should have been eschewed and instead the less precise language of ‘significant number’ or ‘significant portion of the population’ should instead have been used.