>Pardon dilemma for Cambodian tribunal judges tackling ex-Khmer Rouge leader case

Ieng Sary appeared in court on 29th June 2008.

Associated Press Writer AP –
Friday, July 4

PHNOM PENH, Cambodia – A former Khmer Rouge leader’s appeal for release from pretrial detention by Cambodia’s genocide tribunal has raised the issue of balancing the sometimes conflicting interests of peacemaking and justice, experts said Thursday.

During the four-day hearing, which ended Thursday, lawyers at the U.N.-assisted tribunal debated the merit and relevance of a pardon granted 12 years ago to former Khmer Rouge Foreign Minister Ieng Sary, who is charged with war crimes and crimes against humanity.

A ruling is expected in several weeks.

The court is seeking to establish accountability for an estimated 1.7 million deaths under the communist group’s rule from 1975 to 1979.

The court heard several arguments by Ieng Sary’s lawyers seeking to have him freed from the tribunal’s jail, where he is held with four former comrades, including his wife, Ieng Thirith, the former social affairs minister.

Defense attorneys argued that their client should be released because of his ill-health and the possibility that prosecution would constitute double jeopardy _ being judged twice for the same crime.

But their strongest argument may have been that Ieng Sary had previously received a pardon for his activities with the Khmer Rouge _ one that was granted in an effort to bring peace after decades of civil war in Cambodia.

That pardon may now come back to haunt those seeking justice for the millions of victims.

“The court is facing a real dilemma,” said Lao Mong Hay, a senior researcher with the Hong Kong-based Asian Human Rights Commission.

“If they (the judges) uphold the pardon, Ieng Sary would go free, and … because one of the key Khmer Rouge leaders goes free, what’s the meaning of the tribunal?” he said in a phone interview.

Before the hearing ended Thursday, Ieng Sary, 82, made an emotional plea to be released from detention because of ill health, including heart ailments.

Ieng Sary was condemned to death by a tribunal under a communist government installed by Vietnamese troops after they toppled the Khmer Rouge regime in 1979. That tribunal was a show trial with no real effort to present a defense.

Former Cambodian King Norodom Sihanouk pardoned Ieng Sary in 1996 as a reward for his leading thousands of rebel fighters to join the government, a move that foreshadowed the Khmer Rouge’s final collapse in 1999 and brought an end to the country’s civil war.

Ieng Sary’s American lawyer Michael Karnavas argued Wednesday that Sihanouk granted the pardon to Ieng Sary in recognition of him “as an agent of peace, as someone who would be able to stop the war.”

Prosecutor Yet Chakriya asked the court to nullify the pardon because Cambodian law requires a defendant to serve two-thirds of their sentences before a pardon can be granted.

Ieng Sary “has never served his sentence, not even a single day,” said Yet Chakriya.

But the prosecutor also acknowledged the political necessity leading to the granting of the pardon. For the sake of achieving peace, “the government had to temporarily put aside the law although it knew the pardon was not in full conformity with legal steps,” he said.

The spotlight is now on the judges who must rule on the validity of the pardon, said Sok Sam Oeun, executive director of Cambodian Defenders Project, a nonprofit group providing legal assistance to poor Cambodians.

The pardon issue threatened to derail negotiations between the Cambodia and the United Nations in trying to establish the tribunal.

After years of tense talks, the two sides agreed on a tribunal pact in 2003, which contains a clause preventing the government from seeking “amnesty or pardon for any persons who may be investigated for or convicted of crimes” during the Khmer Rouge rule.

“This (pardon) is a very tricky, delicate issue, and it is very easy to be politicized,” said Youk Chhang, director of the Documentation Center of Cambodia, an independent group researching the Khmer Rouge atrocities.

Youk Chhang insisted the public had little sympathy for Ieng Sary despite his being pardoned in the past.

“If Ieng Sary could not be arrested, charged and detained, there was no point having this tribunal,” Youk Chhang said.

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