In the wake of the Khmer Rouge tribunal’s landmark life sentence for former S-21 prison director Kaing Guek Eav, alias Duch, rights groups have expressed concern that the sensational appeal decision masks worrying human rights implications.
Victims rejoiced on Friday as the Supreme Court Chamber at the UN-backed tribunal scratched the original sentence against Duch and awarded him the maximum penalty under Cambodian criminal law – the rest of his life behind bars – for crimes the chamber called “undoubtedly among the worst in recorded human history”.
However, rights groups and monitors are concerned the chamber’s dramatic sentence contains elements which could have dark ramifications for fair trial rights and the court’s remaining three cases.
“The decision to overturn the legal remedy for Duch’s unlawful detention and to provide no alternative may be perceived as a case of public opinion trumping human rights,” Amnesty International’s Rupert Abbott said on Friday.
The former chairman of the notorious interrogation facility was illegally detained by the Cambodian Military Court for eight years, a breach of human rights the Trial Chamber at the court had originally sought to remedy through a sentence reduction of five years.
However, in a decision disputed by two of the international appellate judges, the chamber counted Duch’s illegal detention by the Cambodian Military as time served.
The Cambodian Center for Human Rights considered this “a dangerous precedent for the Cambodian judiciary, who may be encouraged to ignore human rights abuses by other branches or institutions of government”.
“Such a decision [to not remedy illegal detention] pangs of a lack of understanding of the role of judicial institutions in upholding human rights standards,” CCHR programs director Chak Sopheap said.
CCHR has repeatedly reported on rampant excessive pre-trial detention in Cambodian prisons.
Rights groups also raised a red flag over the “life sentence” awarded by the Supreme Court Chamber, which in fact allows for the possibility of parole for the 69-year-old Duch in fewer than eightyears.
“Another concern with the judgment is the apparent decision to leave the issue of Duch’s eligibility for parole to the Cambodian justice system, which has been criticised for its lack of independence,” Amnesty International said in a news release on Friday.
The Ministry of Interior, in conjunction with the tribunal’s co-prosecutors, will determine in which national prison Duch will serve his sentence, ECCC legal affairs spokesman Lars Olsen said yesterday.
Duch will apply for parole with the court of first instance in the jurisdiction of the national prison he will be imprisoned at.
Officials from the department of prisons were not available for comment yesterday.
However, Deputy Prime Minister Sok An, who chairs the government’s tribunal task force, said on Friday that “the ECCC has followed due process, and conducted a fair trial in Case 001”, with the delivery of the verdict being a “historic day for our country and for all humanity”.
Court monitors raised additional concerns with another ruling that has potential ramifications for two controversial cases in the hands of investigating judges.
In rejecting Duch’s argument that he did not qualify as a “senior leader” of the regime and therefore did not fall within the court’s jurisdiction, the Supreme Court Chamber said jurisdiction is a policy determination to be made by co-prosecutors and co-investigating judges.
Open Society Justice Initiative’s Clair Duffy said this was not an “expected outcome”, and that it could adversely impact cases 003 and 004, which are opposed by the government.
The Supreme Court Chamber said jurisdiction was not an issue any of the judges from the tribunal’s three tiers of chambers could weigh in on.
“My view is that this is very disappointing, particularly given the known controversies which already exist on this issue,” Duffy said yesterday, adding that there was a “small window open” for review of any abuse of this discretion.
The two co-prosecutors have already registered disagreement over whether cases 003 and 004 fall within the court’s jurisdiction of “senior leaders” and “those most responsible” for the Khmer Rouge regime atrocities. International co-prosecutor Andrew Cayley alone submitted the two case briefs to the Office of the Co-Investigating Judges for investigation.
The two co-investigating judges similarly appear divided on the progression of their workload.