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
PTC’s grounds for finding the prongs of the Rule 63(3) of the Internal Rules test satisfied are, perhaps, the most controversial and least well-founded of the entirety of the PTC’s assertions in this decision.
Since the Rule 63(3) test comprises several prongs (5), the PTC designed its decision, so that each prong is addressed separately. I have no intention of parsing each of these prongs -- and the PTC's respective arguments for each of these -- in this essay, but instead will discuss only the assertions which I consider to be glaringly unfounded.
The first of the lot is the PTC’s assertion which maintains that “the mere presence of the Charged Person in society can exert pressure upon witnesses and prevent them from testifying”. In simple English this is to say that an unarmed person with no power or connections to power of any kind, who is no friend of the other defendants, and who everyone knows the government wants to see incarcerated – the pre-ECCC 8 years of detention are an indicator of this will in its own right -- will in some way muster up enough clout to intimidate potential witnesses -- who know that by testifying they will be doing this government a service -- to the extent of preventing them from testifying in court. This is considering that Kaing Guek Iev held the position for which he is currently being prosecuted 30 years ago, a period which most of the present population of Cambodia can only vaguely, if at all, remember. What are the pillars this argument of the PTC’s rests upon? For this the PTC relies on Documentation Center of Cambodia (DCCam)’s report based on this organization’s research in Takeo Province which resulted in this conclusion. DCCam was not the only research institution to have conducted studies in Takeo and other provinces where alleged perpetrators are currently residing. Several other researchers – myself included – were never communicated to such feelings of fear and foreboding, but instead, most of the time, were told by persons in question that they would testify and in some cases that they would not, but for reasons of not wanting to ‘poke in the past’, as it was sometimes phrased. In what way did the PTC try to avail itself of the findings of the others who are not affiliated with DCCam? If it did do so, what were the “alternative sources” and on what grounds were these findings discarded? PTC further continued buttressing its argument by asserting that there is a certain “social context prevailing in Cambodia” due to the existence of which “measures to protect witnesses may be limited and weapons easily accessible”. What did the PTC mean by “weapons easily accessible”? By the same token, should a US court deny bail to every accused who identifies his/her address as Crenshaw, Compton or the Southside of Chicago basing it on the fact that illegal weapons are readily available in these areas most often than in an average town in the United States? What about the fact that it is fairly easy to qualify for a firearm license in the United States and the fact that there is no lack of stores that sell weapons – including semi-automatic and automatic assault rifles – under the Second Amendment of the US Constitution? Does this mean no one should ever be granted bail in the United States because this person can easily obtain a weapon illegally or have his/her accomplice do so legally?
The second of the lot is the PTC’s underestimation of the magnitude of research done in relation to S-21 and the persona of Kaing Guek Iev in the last 30 years. No one can reasonably argue under any circumstances, of course, that every shred of evidence has been collected in crimes against humanity cases, as there is always more and we see evidence of Nazi atrocities continuing to resurface 60 years after they had been committed. For the sake of fairness, however, a very significant portion of the archives of S-21 had been captured in 1979 and has since been secured. Multiple victims and perpetrators have been interviewed – in some cases several and even dozens and hundreds of times – by various researchers who documented their statements. In the case of Kaing Guek Iev, the accused himself contributed to the wealth of such evidence during his interrogation by the Co-Investigating judges. What is left to protect there? What kind of evidence relevant to this case and unbeknownst to the research community is the PTC attempting to protect by ordering continued detention of Kaing Guek Iev?