Ieng Sary Team Continues Pre-Appeal Efforts

By Douglas Gillison
The Cambodia daily

Days before a decision that may concern all defendants at the Khmer Rouge tribunal, a defense lawyer for former Foreign Minister Ieng Sary said his team's arguments have unfairly been excluded from the court's record.

The court's Pre-Trial Chamber is due to rule on Friday on a prosecution appeal in the indictment of former S-21 prison chairman Kaing Guek Eav, alias Duch. Prosecutors say Duch should have been charged under the legal doctrine of joint criminal enterprise, a form of criminal liability that holds conspirators responsible for each other's crimes.

Defense lawyers say Friday's decision may affect the trials of all five of the tribunal's current detainees, who are also alleged to have carried out crimes as part of such a criminal enterprise.
However, the court has so far declined to hear arguments on the matter from defense teams other than Duch's, saying they do not have the legal standing to intervene in the S-21 case.

Lawyers for Ieng Sary in October were denied the right to argue against joint criminal enterprise and the court's Pre-Trial Chamber rejected a second request on Nov 21.

The defense on Nov 24 filed a request for the Chamber to once again reconsider its decision to deny them the ability to be heard on the matter.

Michael Karnavas, a US lawyer for Ieng Sary, said Tuesday that in rejecting the request, the court had kept the defense's arguments from becoming part of the judicial record and open to public scrutiny.

"Obviously the [Chamber] is not interested in hearing from any of the other accused [even] though the judges acknowledge that all accused will be bound by their decision," he wrote in an e-mail, adding that the court was "deliberately preventing Mr Ieng Sary from making a record."

International Deputy Co-Prosecutor William Smith said Tuesday the prosecution supported excluding other defense teams from arguments in the appeal in the interests of efficiency.

"I think it's fair in the sense that they're not defendants in the Duch case," he said. "If you opened up every aspect of law that affects defense in the other case, the Duch trial might not finish for another two years."