The Associated PressPublished: July 1, 2008
PHNOM PENH, Cambodia: Lawyers for the former Khmer Rouge foreign minister told Cambodia's genocide tribunal Tuesday that its case against their client violates "double jeopardy" principles because he already was convicted of crimes against humanity and pardoned.
The United Nations-assisted court has charged Ieng Sary, 82, with crimes against humanity and war crimes, and he appeared before the panel Tuesday for a second day to argue that he should be freed from pretrial detention.
On Monday, his defense lawyers argued that Ieng Sary should be released because of his ill health. On Tuesday they made a case for double jeopardy — the right not to be judged twice for the same crime.
The tribunal, jointly run by Cambodian and international personnel, is attempting to establish accountability for atrocities committed by the communist group when it ruled Cambodia from 1975 to 1979.
The group's radical policies resulted in the deaths of an estimated 1.7 million people from starvation, disease, overwork and execution.
Ieng Sary was condemned to death in absentia for crimes against humanity in a tribunal by a communist government that was installed in Cambodia by Vietnamese troops after they toppled the Khmer Rouge regime in 1979. The tribunal was conducted as a classic Soviet-style show trial, with no real effort to present a defense.
In 1996, Ieng Sary received a royal pardon from the sentence from former King Norodom Sihanouk as a reward for breaking away from the Khmer Rouge and leading his followers to join the government. The mutiny foreshadowed the group's surrender three years later in 1999.
In many legal systems — including French law, upon which Cambodian law is based — you cannot prosecute a person a second time for a crime for which a judgment has already been rendered.
Ieng Sary's lawyer Michael Karnavas argued that while some international tribunals have allowed "cumulative prosecutions," this was not permitted under Cambodian law. The American lawyer maintained that Ieng Sary was being tried by a domestic Cambodian court, not an international tribunal.
"As you well know, your honors, you're not here to legislate from the bench. You're here to apply the existing law as it is but not to create new law as if you're legislators," Karnavas said.
In counter arguments, co-prosecutor Yet Chakriya said Ieng Sary was not being prosecuted twice for the same crime because the charges he now faces, crimes against humanity and war crimes, differ from those leveled in 1979.
Another prosecutor, William Smith, said double jeopardy aims to protect people "from suffering the hardships of a trial or consequent punishment twice," but that Ieng Sary suffered neither hardship nor punishment from the earlier trial.
Smith also said that double jeopardy does not apply because the 1979 proceedings did not comply with any internationally recognized standards for a trial.
Ieng Sary, 82, is the only one of five defendants held by the current tribunal who was previously tried and pardoned.
The tribunal plans to hold its first trial later this year.
Ieng Sary's wife, 76-year-old Ieng Thirith, who served as the Khmer Rouge's social affairs minister, is among those being held on charges of crimes against humanity.
On Monday, Ieng Sary's defense team demanded that he be placed under either house arrest or protective hospitalization and undergo proper psychiatric examination to determine whether he is fit to stand trial.
Ieng Sary's "weak physical and mental capacity" makes him unable to fully assist his lawyers, Karnavas told the court.
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