Indefinitely Under-Trial: Trying Elderly Defendants for International Crimes

The Extraordinary Chambers in the Courts of Cambodia (ECCC) has been set up to prosecute former Khmer Rouge leaders. The Khmer Rouge is alleged to have committed crimes of mass atrocities against Cambodian civilians when they sought to transform Cambodia into a communist peasant farming society between 1975 and 1979. A recent preliminary hearing at the ECCC discussed the fitness of the accused – now aged between 79 and 85 years old – to stand trial. The trial has implications for its transitional effect on Cambodian society but the defendants’ old age remains an impediment to the trial process.

The purpose of preliminary hearings on the accused’s fitness is to ascertain his/her mental and physical capacities to participate in subsequent trial processes and exercise their rights to a fair trial. The ECCC will base its decision on the criteria established within the Strugar Test. The inquiry would be concerned more with the mental rather than the physical capacities of the accused. International criminal jurisprudence has established that the implications of mental incapacities of the accused in exercising fair trial rights are alone deemed suitable to be treated in medical facilities and constitute grounds to provisionally suspend trial processes.

At the recent preliminary hearing, the expert medical opinion on one of the defendants, Ieng Thirith’s mental capacity was inclined towards the conclusion that she is unfit to stand for trial. This is because she is suffering from ‘moderate to severe dementia’, most likely due to Alzheimer’s disease. The medical expert suggested that she would have great difficulty in understanding and challenging adverse witness testimonies, as well as difficulty in testifying. So what happens if the accused is deemed unfit to stand trial?

In all likelihood, Ieng Thirith will be unconditionally released into the custody of a medical treatment facility. In the interim, the trial against her would be suspended because she cannot be tried in absentia. Trials in absentia are forbidden at the ECCC by Internal Rule 81[1] and Article 35 of ECCC Law, which incorporates the fair trial rights enshrined in the UN International Covenant for Civil and Political Rights (ICCPR). The charges will remain outstanding and the proceedings against Ieng Thirith will resume when the accused returns to fitness.

It has been pre-empted that a declaration of unfitness could spur public scepticism. Therefore, four additional psychiatric experts have been ordered to conduct additional testing. However, unless the subsequent experts offer a significantly different diagnosis, the prevailing situation is that Ieng Thirith is unlikely to be restored to fitness with treatment. To note also is that the ECCC – a temporary judicial organ with a limited mandate – may no longer exists to prosecute the accused, if and when she returns to fitness. Also, unconditional release from charges is a rare outcome in international criminal trials. Therefore, the prospect that Ieng Thirith could remain indefinitely under-trial is highly likely if found unfit to stand trial. The inevitable paradox of trying aged defendants remains the impediment of their deteriorating physical and mental conditions to successful accountability.