Judges at Cambodia’s war crimes tribunal have ruled that a royal pardon granted to Ieng Sary in 1996 is no bar to the former Khmer Rouge foreign minister’s prosecution in the court’s looming second case.

Ieng Sary received the pardon, signed by then-King Norodom Sihanouk, upon defecting to the government in 1996. Sihanouk pardoned Ieng Sary in relation to his 1979 conviction at the People’s Revolutionary Tribunal, where he was sentenced to death in absentia along with regime leader Pol Pot, and granted him amnesty from prosecution under the 1994 Law to Outlaw the Democratic Kampuchea Group, which criminalised membership in the Khmer Rouge.

The issue of this pardon's scope and its effect on proceedings at the tribunal has been raised by observers and defence lawyers, as has the question of whether the current case against Ieng Sary could constitute double jeopardy in relation to his 1979 conviction. In a decision dated Monday, however, the court’s Pre-Trial Chamber dispensed with these issues.

“The amnesty granted to Ieng Sary was confined to the specific sentence pronounced in 1979,” the judges said in a unanimous decision.

“In the context where it is related to a sentence, the sole effect of the amnesty was to ‘abolish’ and ‘forget’ the 1979 sentence, thus ensuring that it would not be put into effect.

"It had no effect on the possibility to institute future prosecutions as the amnesty was not related to the ‘acts’ allegedly committed.”

The judges further noted that the text of the pardon provides amnesty only in relation to the 1994 legislation, not for the charges under domestic and international law that Ieng Sary currently faces at the Extraordinary Chambers in the Courts of Cambodia, as the tribunal is formally known.

Ieng Sary has been charged with a raft of offences including genocide and crimes against humanity in a case that is set to go to trial within the next few months. He will be tried alongside former Khmer Rouge Brother No 2 Nuon Chea, head of state Khieu Samphan and Social Action Minister Ieng Thirith, none of whom received similar amnesties upon their defection to the government.

Officials from the United Nations and the Cambodian government were clearly aware of the issues surrounding Ieng Sary’s prosecution as they drafted regulations for the court.

“There has been only one case, dated 14 September 1996, when a pardon was granted to only one person with regard to a 1979 conviction on the charge of genocide,” the 2003 agreement establishing the tribunal states.

“The United Nations and the Royal Government of Cambodia agree that the scope of this pardon is a matter to be decided by the Extraordinary Chambers.”

Anne Heindel, a legal adviser with the Documentation Centre of Cambodia, said the defence arguments touched on a “hugely important issue in international law” – namely, the question of whether pardons for grave crimes are sometimes necessary to end conflicts.

Should the ECCC disregard the 1996 pardon and amnesty, the defence argued in their appeal against Ieng Sary’s indictment, it could “have a severely detrimental impact on attempts to end future conflicts all over the globe”.

“Those taking part in hostilities who are willing to negotiate for peace will be unlikely to trust that any amnesty offered would later be judged valid,” the lawyers said.

Heindel said, however, that this issue was ultimately irrelevant because the language of Ieng Sary’s pardon and amnesty is limited, touching only on the 1994 law and his 1979 genocide conviction.

“Ultimately, if Ieng Sary wanted a better amnesty or pardon, he should have hired a lawyer to draft the text,” she said.

Prime Minister Hun Sen, then serving alongside Norodom Ranariddh in a coalition government, said in 1996 that Ieng Sary’s pardon and amnesty had been specifically tailored to allow for future prosecution.

“If you study the wording of the Royal [amnesty], you will see that there is still the possibility to try the crimes committed by Ieng Sary,” Hun Sen said. “We paid much attention to the wording of the pardon … there are no words in it which ban the accusation of Ieng Sary in front of a court which may be formed in the coming times.”

The Pre-Trial Chamber judges also said in their decision Monday that Ieng Sary’s impending prosecution will not constitute double jeopardy in relation to his 1979 trial because those proceedings were “not conducted by an impartial and independent tribunal with regard to due process requirements”.

The People’s Revolutionary Tribunal, formed shortly after the fall of the Khmer Rouge, has long been viewed as a show trial. The PRT president told reporters that the defendants were guilty before the trial had even begun, and a lawyer for the defence made a witness statement on behalf of the prosecution.

The Pre-Trial Chamber’s decision is not subject to appeal, though Ang Udom, a lawyer for Ieng Sary, said yesterday that the defence would likely raise these issues again when the case goes before the Trial Chamber.

ADDITIONAL REPORTING BY CHEANG SOKHA