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:
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.


John said...

This is a fascinating legal question. For due process, some Cambodian judicial body has to deal with Duch's detention history. Since he's now in the custody of the ECCC (an entity organized under Cambodian law), it seems awkward to kick the question back to the military court. The military court no longer has him, and which therefore can't provide a meaningful remedy in terms of possible sentencing reduction.

I haven't read the military court's original detention order, but it seems clear that Duch was being held in anticipation of the judicial body that came to be the ECCC. Does tranferring him to the custody of a newly-created court wipe out his remedies? It depends on whether we buy David's argument that the ECCC is truly separate from the Cambodian legal system. I'm not convinced and vote with Anne on this one.

Go Grrrls!

the_lady_eve said...

I think the question is indeed one of remedies. While the ECCC may not be "truly separate" from the Cambodian legal system, I believe that its hybrid nature distinguishes it from a mere domestic court (as Kahan recently argued in his amicus). The ECCC has the power to reduce his sentence, which would be an appropriate remedy under the circumstances. An unconditional release for a war criminal of his rank is far too extreme.

Given that the ECCC didn't even exist at the time that Duch was detained, it's hard to argue that he was in constructive custody throughout his detention, as were other defendants like Barayagwiza. Absent a clear link between the detention and the ECCC, it's hard for me to fathom letting him go. It seems like the clearer response would be to credit time already served against any sentence imposed, and then allow him to seek other forms of relief from the Cambodian government.

Thanks for posting an interesting discussion!