Time to Take a Can of Whup A … Out of the Pantry

The Supreme Court Chamber (SCC) ruled on Ieng Sary’s appeal against the Trial Chamber’s decision to compel Ieng Sary to be present in court “during the opening statements”. The SCC disposed by finding the appeal inadmissible for being outside the ambit of R. 104’s immediate appeals.

This may or may not be correct as the text of the appeal is not available to the public and SCC did not offer a detailed argument for inadmissibility but the question here is why did the SCC need to go to the forest for berries when they are right here in the fridge nicely wrapped with a big label across saying ‘berries’ and a bow to pull open by? If Ieng Sary’s appeal was limited to the “opening statements”, as the SCC states in its decision, then whatever the grounds for the appeal might have been at the time of the compulsion of Ieng Sary’s presence in court they had become moot by the time the appeal was filed. What am I missing here?

From here, the Chamber found its way to the straight road of correctness and rejected the defense’s allegations of the Trial Chamber’s interference with the administration of justice. Well, almost. If the appeal is inadmissible for reasons of R. 104 (or the mootness of the issue which is the correct reason for which to find on admissibility), then the Chamber is barred from discussing its merits (which it did by finding R. 35 arguments without merit). A decision cannot find the appeal inadmissible and yet discuss its merits. Occam’s razor. We have a lot to learn from the Medieval lawyer-monks. Also known as the economy of means.

Ieng Sary’s defense’s papering of this Court in an escalating manner is an entirely other kettle of beans. Due diligence is required of counsel and asserting the suspect/accused/convicted person’s rights is part of this due diligence. Abuse of the right to appeal isn’t. Let’s understand the reason for this appeal: Ieng Sary who stands accused of the highest tier of international crimes finds his cell more agreeable than the chair in the courtroom (which is understandable because the quality of cells at the ECCC is only matched by the quality of cells in Scandinavia; it is particularly curious that half of the budget of the court is contributed by a country whose detention facilities leave so much to be desired I wouldn’t know where to start but I digress). The defense goes ahead and argues that Ieng Sary’s discomfort is of such magnitude that it prevents him from effectively assisting in his defense. Must have been a really bad chair. Perhaps, something custom-built on the basis of the Spanish Inquisition’s blueprints. On a serious note, though, there has to be a point where the SCC opens a can of R. 35 whup-a… on the defense and this point has been reached. Some time ago now.