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
Conclusion (Assertions 1-7)
The series of assertions of the ECCC’s Pre-Trial Chamber in the case of Kaing Guek Iev discussed in this space for the last two weeks will affect multiple aspects of the upcoming trials and reverberate throughout the Cambodian judicial system.
In this decision the Chamber demonstrated that we are unlikely to see a break from the run-of-the-mill quality of decisions of ordinary Cambodian courts which, over years, has been lamented by many observers. Most important, perhaps, the decision has shown that “the international participation” in the ECCC will not make a requisite difference and is unlikely to result in fair trials of international standard which many who brought about the existence of this court were hoping would transpire. The biggest problem with this tribunal is that on the face of it the proceedings, thus far, have looked as if significant positive changes to the Cambodian judicial process have been made. This is a highly deceptive outlook a observer might have about the comings and goings of this court. PTC, for one, did institute a semblance of procedures of a standard far higher than those of the ordinary Cambodian courts by making its decisions public – at least the major ones – and requesting the participation of the general public which resulted in a slew of amicus curiae briefs submitted in the case of Kaing Guek Iev. There is, however, not obvious from this decision to what extent the PTC had perused the wealth of arguments of the briefs which amounted to some 130-140 pages, cumulatively. If the judges had taken into consideration any arguments made in these briefs, they did a remarkable job concealing this fact in the decision. The Chamber, in fact, refused to attempt to resolve some of the most deep-seated issues which for years prior to the establishment of this court had surrounded the detention of Kaing Guek Iev and which some of the largest international human rights organizations refused to discuss or advocate for as they deferred to the perceived sagaciousness of the tribunal’s judges. There had been a lot of speculation and forecasting about what legal acrobatics the PTC would have to employ to tackle such a formidable issue. In the end, instead of a display of Shaolin masters’ intricate fighting techniques we ended up being presented with a bar brawl in which the Chamber “duked it out”. The decision was hardly worth the wait. The decision disclosed another interesting -- but, perhaps, not surprising -- facet of this court – decisions of the court will be made fast with the judges spending very little time deliberating as the outcomes are pre-ordained (it is hard to imagine the judges even had the time to carefully examine the materials submitted by the prosecution, the defense and the public following the period of their submission and the Chamber’s writing of the decision). It would be interesting to find out whether the relevant tests of law were even discussed during the judicial deliberations of this matter or a decision to detain was merely made in a more empirical manner. If honest and technical deliberations were held, I would like to know how the international judges of the PTC Downing and Lahuis managed to relate the Special Court for Sierra Leone (SCSL)’s decision in Taylor -- which to the best of my knowledge was never translated into Khmer -- to non-English speaking Cambodian judges, and how in the same manner they managed to communicate “the evidence” obtained from numerous other publications which – there is no doubt in my mind – are only available in the English language. For the several years of working with Cambodian judges, prosecutors and police officers I have never been able to figure out how to do this so comprehensively and in such an astonishingly short period of time. Judges Downing and Lahuis, apparently, know something I do not. Sarcasm aside, if none of these sources were communicated to the Cambodian judges of the PTC in a language they could understand, how could this “evidence” be entered into a decision which they signed? To what extent do the Cambodian judges of the PTC stand behind the reasoning of the Chamber in this decision? Everything in the text of the decision is pointing to this extent being anything but great. If this is so – and now that this scab has been opened up – what does this do to the ever-so-anticipated an outcome of the proceedings before the ECCC which is the training of the Cambodian judicial personnel (I, personally, do not believe this should be listed as one of the primary desired outcomes in a crime against humanity process). How can the Cambodian judicial personnel of the ECCC be trained, if they are not the ones writing – or participating in the writing of – the decisions or even being aware of the texts behind the footnotes?
As much as I would like to see this decision being mulled over in Cambodian society at large and in Cambodia’s legal community particularly, I do realize there are very few of those who have read the decision or will ever read it, and – let’s be honest – who care about how exactly it was constructed and how the judges had arrived at the decision to detain that they arrived at. To many of us who have been working on the various tribunal-related issues and generally on the legal and judicial reform in Cambodia, this is no surprise. With this said, I still believe that a very important opportunity was squandered by the handing down of this decision in this form and with this reasoning which was an opportunity to assert the rights of the accused, ascertain a large variety of controversies existing around Kaing Guek Iev’s detention and assuage the inference of the interests of the executive in matters which are constitutionally deemed as justiciable. Although PTC decisions are barred from formal review by the Internal Rules of the ECCC, informal review of this decision will doubtless be examined by international jurists and students of law across the world. In the words of one of the watchers of the process, “these judges will have to stand the test of their colleagues at other international criminal tribunals who will be reading this decision”.