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The Extraordinary Chambers in the Courts of Cambodia (“ECCC”) is currently conducting a series of hearings regarding the fitness to stand trial of some of the defendants in Case 002. Case 002 involves four leaders from the Khmer Rouge regime of 1975 to 1979, Noun Chea, Ieng Sary, Khieu Samphan, and Ieng Thirith. They have been indicted on multiple charges, including crimes against humanity and genocide. The court’s review of Noun Chea, Ieng Sary, and Ieng Thirith’s fitness to stand trial has significantly delayed the start of the trial. While a defendant has a right to be able to competently participate in his or her trial, the inability to try violators of human rights due to health concerns may undermine victims’ access to justice.

Rule 81 of the ECCC states that the defendant has a right to be present at his or her trial. Furthermore, the Cambodian Constitution embraces the UN International Covenant on Civil and Political Rights, which requires in Article 14 that defendants be able to participate in their own trial. A defendant who is mentally or physically incapable cannot stand trial. The ECCC has ruled that a defendant may request a health evaluation, as per Prosecutor v. Strugar, a decision of the Trial Chamber of the International Criminal Tribunal for the former Yugoslavia (“ICTY”). In Strugar, the ICTY held that a certain level of mental cognizance is required for a defendant to “effectively exercise” his procedural rights. Thus, the purpose of these fitness hearings is to determine if a defendant can stand trial. If the court finds the defendant unfit, the decisions of the ICTY can help guide the court in determining how to handle permanently unfit defendants.

Concerns regarding the defendants’ health were first raised in March 2008 when Noun Chea requested the appointment of an expert to gauge his fitness to stand trial. The court denied this motion on the grounds that the defense did not present enough evidence to warrant the appointment of an expert. Internal Rule 32 of the ECCC states that the court may appoint an expert to determine if a defendant is “physically and mentally fit to stand trial” because the defendant has a procedural right to be capable of understanding and present for the litigation.

In 2011, Noun Chea, joined with Ieng Thirith and Ieng Sary, again requested the appointment of an expert to evaluate their fitness to stand trial. The order was granted and Dr. John Campbell, a geriatrician from New Zealand, evaluated the health and fitness of both Ieng Thirith and Noun Chea, while Ieng Sary was denied an evaluation. Dr. John Campbell examined Noun Chea and Ieng Thirith and appeared before the court from August 29 – August 31, 2011 to answer questions. While the court has yet to make a final decision on both defendants, Dr. Campbell’s findings will likely weigh heavily in the decision because of the ECCC’s inability to conduct its own thorough health assessment with a full understanding of the medical issues.

Dr. Campbell’s report found Noun Chea fit to stand trial. However, it is likely that the defense will continue to raise health concerns regarding his mental and physical ability. Dr. Campbell’s report on Ieng Thirith states that she is likely suffering from Alzheimer’s disease and short-term memory loss, and recommends that she undergo further psychiatric testing to determine if she is fit to stand trial. He does not think she is currently fit to stand trial, and he believes she is unlikely to improve. Once affirmed by the Supreme Court Chamber, a decision that a defendant is unfit to stand trial is final and terminates proceedings against the defendant. Thus, there is a substantial likelihood that Ieng Thirith’s trial will never progress past the pre-trial stage.

If Ieng Thirith is declared permanently unfit, the ECCC will face a unique and challenging decision, with jurisprudential repercussions not merely for the ECCC itself, but for the entire international criminal justice landscape. Unlike in Strugar, where the defendant declared unfit died three months later from terminal cancer, Ieng Thirith’s Alzheimer’s is permanent, but not terminal; she could survive for years rather than months. If unfit, the court is likely to release her to a health facility or to her family, with restrictions placed on her movement. However, it is possible she will outlive the mandate of the ECCC, in which case it is unclear if any potential restrictions placed on her would continue to have a legal effect.

The trial against all four defendants will start in late November. However, if proceedings against Ieng Thirith are halted, there may be no redress for the victims of Khmer Rouge’s brutal regime, many of whom continue to suffer from health issues. Many victims of the Khmer Rouge are in a similar physical and mental condition as Ieng Thirith but do not have access to the same standard of health care. While it is important to balance the rights of the defendant, it is important not to lose sight of the fact that these defendants allegedly led a brutal, genocidal regime whose victims are still suffering ill consequences. While the ECCC strives to respect the rights of the defendants, justice for the victims should not be forgotten.