Thursday, July 31, 2008

De Facto Segregation of ECCC Provisional Detainees

Thanks for giving me the opportunity to guest blog on my research in Cambodia on the regime of provisional detention within the Extraordinary Chambers (left).
The Office of the Co-Investigating Judges (OCIJ) at the Extraordinary Chambers in the Courts of Cambodia (ECCC) has imposed an unprecedented de facto segregation regime on the five provisional detainees since the beginning of their detention. The detainees are prohibited from interacting with each other with the exception of limited visits between the married couple, Ieng Sary (below right) and Ieng Thirith (bottom right). This means that the detainees’ options for human contact are limited to the prison staff and occasional, OCIJ-approved visits from lawyers and family members. This regime is not only detrimental to the Tribunal’s work because it strains the detainees’ health, but arguably legally impermissible in light of the ECCC Internal Rules and international precedent.
In determining the propriety of coercive measures imposed on provisional detainees, Rule 21(2) of the ECCC Internal Rules requires that the fundamental rights of the detainees be balanced with the necessity of the measure and the gravity of the charged offense. This approach is mirrored in the Regulations of the International Criminal Court (ICC) and the Rules of Detention of the International Criminal Tribunal for the Former Yugoslavia (ICTY).
Though there is little precedent on this issue, the limited precedent available from ICC and ICTY suggests that de facto segregation is rarely proper even in cases involving co-defendants accused of the gravest of crimes. (See Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui at the ICC and Delalic at the ICTY).
In applying the balancing test to the ECCC provisional detainees in light of international precedent, there are many factors weighing against a de facto segregation regime.
► First, unlike the cases of Ngudjolo Chui and Delalic, the ECCC Office of the Co-Prosecutor has not requested segregation of the detainees. Rather the OCIJ has imposed this regime on its own and in a non-transparent manner.
► Second, although the OCIJ has expressed worry that the detainees will collude if allowed to interact, the OCIJ has not publicly identified any concrete evidence of attempted collusion as required under international precedent. Delalic holds that the worry of collusion alone absent concrete evidence is not sufficient to overcome the strong presumption against infringements on provisional detainees’ fundamental rights.
► Finally, there are strong arguments that the segregation regime is a punitive gesture that provides little benefit to the Tribunal. On the one hand, consistent, long-term segregation is likely damaging the psychological health of the detainees, thereby threatening the work of the Tribunal as a whole. On the other hand, the detainees are allowed visits from friends, family, and lawyers. Though these visits might not be frequent enough to compensate for the potential psychological harm caused by the segregation of the detainees, such visits could provide opportunities for the detainees to collude via third parties.
This makes the segregation regime vulnerable to criticism that it is a formalistic measure intended to make the provisional detainees uncomfortable rather than protect the proceedings from prejudice. The Tribunal therefore must carefully consider the legal basis and consequences of a provisional de facto segregation regime, particularly as the Tribunal strives to adhere to the highest standards of human rights and justice.

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