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
On the question of the satisfaction of the "ensure the presence of the accused" prong of the necessity test, the PTC put forward several assertions. One, the accused, the Chamber felt, took measures to conceal his past during the period from 1979 to 1999. Two, when journalists Dunlop and Thayer published a story about the accused, the latter allegedly disappeared. Three, now that there is a possibility of accused being sentenced to life imprisonment, the Chamber contends he might disappear again, if released. Four, the fact that he will be tried in public, the Chamber maintains, might be an added incentive for him to abscond. Five, the Chamber felt that lack of a passport and money notwithstanding, the accused might still be able to hide himself in Cambodia or cross the border illegally.
On its first assertion within this prong, the Chamber clearly had no way of knowing much about the whereabouts of the accused and the course of action he took after Democratic Kampuchea was toppled and driven out of Phnom Penh. There are plenty of people around who had worked with him during that 20-year period, who traveled outside Cambodia with him -- amongst them are managers of reputable international non-governmental organizations whose testimonies could have been of those of quality as well as of utility to the Chamber, had it chosen to investigate the matter beyond journalistic writings and obtain sworn testimonies. There is no telling whether these testimonies would have shed light on matters of the accused's behavior that would have been instructive for the Chamber beyond what it already knew at the time, but such efforts to ensure the full satisfaction of the prong in question doubtless would have added to the credibility of this decision. The accused's second "disappearance" is unlikely to help the credibility of the PTC's arguments due to a certain controversy which surrounds the issue in question. I, personally, have heard different stories from different people on the subject and have not been unable to verify any of them. The Chamber could have done the heavy lifting considering the resources it has at its disposal and, most important, level of access it enjoys. That opportunity was, once again, squandered. The question of whether the accused is afraid of what might turn out to be a life imprisonment is that for phychologists to resolve, however, on the face of it the Chamber did not err here as it is entirely possible that a reasonable person might be so disposed which might result in certain actions to prevent that from happening. The question of whether Kaing Guek Iev is afraid of facing his alleged victims and/or their family is a question of degree to which this fear exists and whether it is powerful enough to prompt the accused to abscond and likely spend the rest of his life in hiding. It is, of course, not impossible to imagine that any accused released pending trial might abscond and this accused is probably more equipped to do so than most other people in Cambodia as he is conversant in several languages which would be of great utility if he chose to abscond. PTC did not mention his command of foreign language which I attribute, once again, to lack of due diligence in conducting relevant research by the Chamber. PTC did not address the issue of institutionalization and how the same can help answer the question of whether the accused was a flight risk. This is an important matter as the accused has been kept in pre-trial detention in the last 8 years without knowing whether that detention had a limit and perhaps thinking of it as interminable.