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Trying Ieng Sary

According to a recent news report, Hun Sen has suggested that Ieng Sary should not

be brought to trial on charges of genocide, [on the ground] that a person cannot

twice be convicted for the same crime (Kyodo News Service, Sep 24, 2000).

Leaving aside the questions this raises regarding respect for the separation of powers

in Cambodia, the affirmation oversimplifies a complex legal issue.

Although it is a basic principle of criminal law that a person may not be convicted

twice for the same crime (non bis in idem), in the case of Ieng Sary the situation

is not so simple.

On one hand, the "trial" of the Pol Pot / Ieng Sary clique in 1979 has

been widely recognized as not having met international standards for a fair trial.

Even if the 1979 trial were deemed to be valid under Cambodian Law despite these

defects, it should be recalled that it was an in absentia judgement. Cambodian law,

based on the French penal system, should provide for a new hearing once the accused

is arrested in order to respect the rights of the defence.

On the other hand, current international law and practice establishes that a person

may be prosecuted for international crimes even if he has already been found guilty

of a common law crime for the same acts. (See for example, Art 10 para 2 of the statutes

of the ad hoc tribunal for the former Yugoslavia: UN Doc S/25704, Annex, pp 41-42;

confirmed by Article 20 of the Statutes of the International Criminal Court.)

Despite the fact that Ieng Sary was found guilty of "genocide" in 1979,

the definition of the crime, made to measure to ensure a conviction (this definition,

established by Decree-Law No 1 of the PRK, is reproduced in UN Doc A/C3/34/1, 30

July 1979, par C1), was so far from that set out in the 1948 Genocide Convention

that it may be seen as an application of purely internal law. (On this point, see

Polyukhovic v The Commonwealth, High Court of Australia, (1991) 65 CLR 521, per Brennan

J, p545.)

This interpretation is supported by the fact that King Sihanouk is reported to have

acknowledged that the royal pardon accorded to Ieng Sary in 1996 was a purely internal

act which in no way affected any future indictment for international crimes.

Although a new indictment for common law crimes would, thus, seem excluded by the

pardon, an indictment for genocide or crimes against humanity should still be feasible.

(In any case, the statutory limitation period has long since been passed; the extension

of the limitation period for common law crimes, proposed in the draft law creating

a tribunal to judge the Khmer Rouge, seems in contradiction with basic principles

of criminal law.)

The appropriate forum for dealing with these complex issues is the competent court,

whether purely Cambodian or with international participation.



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