For eight years Duch has been held in detention without any apparent attempt to bring him to trial. He is not the only detainee in Cambodia who has been held for an extended period without process. It is essential to the legitimacy and legacy of the ECCC that it does everything in its power to ensure the rights of persons falling under its jurisdiction. By doing so, it can make a significant contribution to long-term reconciliation efforts in Cambodia, the scope of which extends far beyond the ECCC’s limited mandate and the short period of time during which it will be in operation.
Friday, October 12, 2007
The jurisdictional reach of hybrid courts
Amidst much excitement over the unveiling of a UNDP audit finding financial mismanagement at the Extraordinary Chambers in the Courts of Cambodia (ECCC), interesting recent developments in the case of Kang Guek Eav, aka "Duch" (pictured at left), have gone relatively unnoticed. Duch, the former director of S-21, the central prison in Phnom Penh that was a site of horrific torture under the Khmer Rouge regime, has been detained since May 1999 awaiting trial for domestic and international crimes including crimes against humanity and war crimes. Not surprisingly, Duch's lawyers have challenged his "provisional" detention, arguing that his eight-year detention violates Cambodian and international human rights law. This week, the Pre-Trial Chamber announced that the appeal of Duch's detention order will be heard in public at a date TBD. Last week, dueling amicus briefs spoke to the ECCC's authority to rule on the legality of Duch's detention order, which was issued by a military court years before the ECCC came into existence. Prof. David Scheffer, former U.S. Ambassador-at-Large for War Crimes, argues here that the ECCC cannot rule on the legality of Duch's prior detention order, while Anne Heindel, a legal advisor to the Documentation Center of Cambodia (pictured above right at the ECCC site with DC-Cam Deputy Director Dara Poeuv Vanthan), argues here that the ECCC does indeed have jurisdiction to determine the legality of Duch's pre-trial detention. Heindel asks whether this sui generis instutition, created as part of the domestic court system, has the same or similar obligations as a Cambodian court to address due process violations. Moreover, as an international court, she argues that under ICTR precedent, the ECCC may be responsible for violations of Duch's rights while he was held in "constructive custody." Even if it is not, Heindel notes that the ECCC has an obligation to determine the legality of Duch's detention. In her words: