Should the Rudolf Hoss of Cambodia be entitled to the minimum procedural guarantees?

Abstract

New rulers seized the capital of Cambodia, Phnom Penh, on April 17 1975 and instituted a radical Maoist state known as Democratic Kampuchea (popularly known as the Khmer Rouge) which reined terror and dramatic societal restructuring for 3 years and 8 months 3 days and ended, for most Cambodians, on January 7 1979, following the Vietnamese invasion. The process of retributive justice against the Khmer Rouge began in August 1979. Currently, this process is gearing toward a hybrid Khmer Rouge Tribunal (Extraordinary Chambers) that is yet to be established. In the meantime, two prominent ex-Khmer Rouge cadres are kept in detention on charges related to their activities during the period from 1975 to 1979. One of them is the subject of this analysis - the former director of the central security prison of Democratic Kampuchea, known as Toul Sleng, Kang Kech Iev (alias Duch). Duch has been detained on orders of the Military Tribunal of Phnom Penh since 1999 with most minimum procedural guarantees denied to him and his legal assistance being less than adequate. These practices have caused no public outcry due to the popular belief that a detainee with such serious charges pending against him has forfeited his entitlement to the minimum procedural guarantees. This paper offers a number of defense theories grounded on the Cambodian laws of the past 40 years that Duch may benefit from, if a proper legal process is instituted.