Opinion: Trial Chamber Brings Rights Dimension into the ECCC Process
Putting rights of the accused back into the context of the ECCC – where they doubtless belong – the TC stopped short of recognizing the fact that the collusion between the MT and the ECCC in fact was much more pronounced than the Co-Prosecutors (CP) and the Co-Investigating Judges (CIJ) were willing to let on and which clearly manifested itself at the time of the transfer of Kaing to ECCC custody. Nor did the TC examine the connection between the legislative drive to extend pre-trial detention in cases of crimes against humanity and the delays at the time occurring in the negotiating process between the Royal Government of Cambodia (RGC) and the United Nations (UN) which were the driving force behind said legislation. The TC equally did not give full force of application to the ICTR Appeal Chamber’s decision in Barayagwiza, although the TC acknowledged that it was in general compelled by the court’s reasoning in this case. It is unfortunate that the TC did not launch a thorough examination into the existence of circumstances which the PTC had claimed satisfied the pre-trial detention test; had such an examination been undertaken, the TC would have found the groundlessness of such previously made assertions.
Regardless of these shortcomings, the TC’s decision of June, 15 presents a true rights landmark in these proceedings as it brings the notion of rights of the accused previously and mercilessly trampled by the PTC decisions back into the process. It is hopeful that this is the beginning of a larger trend of respect for human rights in the proceedings before the ECCC.