## Facts

- Ieng Sary, a senior Khmer Rouge official, served as Deputy Prime Minister and Minister of Foreign Affairs during the Democratic Kampuchea period (1975–1979).
- Investigators alleged involvement in crimes against humanity and grave breaches of the Geneva Conventions, including murder, extermination, imprisonment, persecution, forced transfers, enslavement, and forced labor as part of a widespread or systematic attack on civilians.
- In 1979, a Cambodian tribunal convicted Ieng Sary of genocide in absentia and sentenced him to death; the sentence was not carried out.
- In 1994, Cambodia enacted a law outlawing the Democratic Kampuchea group and criminalizing continued membership/support.
- In 1996, a Royal Pardon and Amnesty pardoned the 1979 death sentence and granted amnesty from prosecution under the 1994 law.
- In November 2007, the Co-Investigating Judges ordered Ieng Sary’s provisional detention in Case 002; the order rejected jurisdictional objections based on *ne bis in idem* and the 1996 pardon/amnesty.
- Ieng Sary appealed the detention order to the Pre-Trial Chamber, challenging both detention and jurisdictional determinations.

## Issues

1. Whether the 1979 genocide conviction in absentia barred later prosecution for crimes against humanity and grave breaches of the Geneva Conventions under *ne bis in idem*.
2. Whether the 1996 Royal Pardon and Amnesty extinguished or barred jurisdiction to prosecute the charged international crimes.
3. Whether provisional detention was lawful, necessary, and proportionate, or should be replaced with less restrictive measures.

## Decision

- The Pre-Trial Chamber dismissed the appeal and affirmed the provisional detention order.
- The Chamber held *ne bis in idem* did not bar the proceedings because the ECCC case concerned different offenses (crimes against humanity and grave breaches) than the 1979 genocide conviction.
- The Chamber held the 1996 Royal Pardon and Amnesty did not bar prosecution because it was limited to the 1979 death sentence and amnesty under the 1994 membership law, not the international crimes charged.
- The Chamber found detention justified given the seriousness of allegations, complexity of the proceedings, and risks of flight, interference with witnesses/victims, and disturbance of public order; alternative measures were inadequate.

## Legal Principles

- *Ne bis in idem* does not preclude a later prosecution when the subsequent case charges legally distinct offenses with different elements and protected interests from those addressed in prior proceedings.
- A domestic pardon or amnesty is interpreted by its text and scope; a clemency measure limited to specific domestic consequences (a sentence) or a specific domestic offense does not automatically extend to international crimes within a tribunal’s subject-matter jurisdiction.
- Where the tribunal’s founding instruments assign the tribunal authority to determine the effect of prior amnesties/pardons, the tribunal may refuse to treat them as bars to prosecuting serious international crimes.
- Provisional detention may be upheld when justified by the gravity of the alleged crimes, procedural complexity, and concrete risks (flight, interference, public order), and when less restrictive measures cannot adequately address those risks.

## Conclusion

The Pre-Trial Chamber confirmed that neither the 1979 genocide conviction nor the 1996 Royal Pardon and Amnesty barred prosecution for crimes against humanity and grave breaches of the Geneva Conventions, and it upheld continued provisional detention pending further proceedings.


Co-Prosecutors v. Ieng Sary, Case No. 002/19-09-2007-ECCC/OCIJ (PTC03) (ECCC Pre-Trial Chamber 2008)