On Thursday, November 8, 2012, the Trial Chamber in the Extraordinary Chambers in the Courts of Cambodia (ECCC) heard long and sometimes tense discussions of the most recent medical report written by Professor John Campbell, a geriatrician who had been appointed as a medical expert by the Chamber to undertake an assessment that included defendant Ieng Sary’s health status and continued fitness to stand trial.

Prof. Campbell had advised in his report of November 2012 that although Mr. Sary is now frailer and weaker, there had been no significant changes to Mr. Sary’s health status and fitness since when the defendant was last examined in September 2012. Consequently, Prof. Campbell advised, Mr. Sary remained fit to stand trial and to be returned to the ECCC detention facility, though with an improved level of care.

After hearing a protracted examination of the expert by both the Ieng Sary defense team and the Office of the Co-Prosecutors (OCP) — particularly concerning Mr. Sary’s concentration and dizziness and the merits of obtaining a second opinion on Prof. Campbell’s findings — the Trial Chamber ordered Mr. Sary to return to the detention facility on an interim basis, pending issuance of a final determination by the Chamber on the issues on which Prof. Campbell had been requested to advise.

History of Ieng Sary’s Recent Examinations by Medical Experts 

This morning’s hearings took place before a packed public gallery containing approximately 265 villagers and 90 monks from Puok, Brasat Bakong, and Bantheay Srey districts in Siem Reap province. Audience members had traveled overnight to be present in the courtroom today, leaving Siem Reap around midnight in a convoy of buses. One audience member said that he had attended court today just to see the faces of the defendants, while a number of others expressed excitement at being able to observe proceedings.[2]

Trial Chamber President Nil Nonn opened the day with a formal welcome to all parties. He advised that the purpose of the day’s hearing was to examine a report made by medical expert, Professor John Campbell, concerning the health of defendant Ieng Sary. Prof. Campbell had examined and submitted reports concerning Mr. Sary, who had been admitted to the Khmer Soviet Friendship Hospital for two months, from September 7 until November 7, 2012. The president added that due to his health concerns, Mr. Sary would be observing the proceedings from his holding cell for almost the entirety of the day’s proceedings.

President Nonn proceeded to give a detailed overview of the recent history of medical examinations to which Mr. Sary had been subjected, and the associated court proceedings. On August 21, 2012, the Trial Chamber requested medical experts John Campbell, Seena Fazel, and Huot Lina, who were then present to testify as to the health of former Case 002 defendant Ieng Thirith, to also undertake a preliminary examination of Mr. Sary’s health. In their September 3, 2012 report on that examination, the experts concluded that Mr. Sary was mentally and physically fit to plead and stand trial.[3]

On September 7, 2012, Mr. Sary was admitted to the emergency section of the Khmer Soviet Friendship Hospital where he was hospitalized until November 7, 2012, when the Trial Chamber requested the ECCC’s Office of Administration to make arrangements to return Mr. Sary to the detention facility of the ECCC so that he could participate in today’s hearings.

To date, the president went on, there has not been any confirmation of the future developments of Mr. Sary’s health conditions and when he will be well enough to participate in the trial proceedings. After having listened to his treating doctors on September 21, 2012,[4] the Trial Chamber indicated on September 24, 2012, that the Chamber would submit all relevant medical reports concerning Mr. Sary’s treatment at the hospital to Prof. Campbell, along with the transcript of the court’s proceedings on September 7, 2012, in which Mr. Sary’s treating doctors testified as to the medical conditions of Mr. Sary. Having examined the relevant medical reports, Prof. Campbell indicated to the Trial Chamber that, “according to the relevant medical documents he received, he found it difficult to be persuaded as to the changes to Mr. Sary’s medical status since the last time he examined the accused person.”

Therefore, on October 8, 2012, the Trial Chamber issued a reappointment order for Prof. Campbell to examine Mr. Sary with the assistance of a Cambodian medical doctor.[5] On October 23, 2012, after having reviewed the brief biography of the assisting doctor as submitted to the Trial Chamber by the ECCC’s Witness/Expert Support Unit (WESU), the Trial Chamber ordered the appointment of Dr. Lor Vann Thary to work with Prof. Campbell in order to examine Mr. Sary on November 4, 2012.[6] These experts were asked to carry out seven tasks:

1.     Examine defendant: Examine Mr. Sary and review all medical information and tests conducted on him since Prof. Campbell last reported.
2.     Conduct additional tests: Conduct or have conducted any additional testing that was considered appropriate to assist in reaching a diagnosis.
3.     Consult if necessary: Consult with any other qualified person such as a radiologist whose assessment might be helpful in interpreting or confirming his conclusions on test results or on the local availability of specific medical tests considered essential for a diagnosis of Mr. Sary’s current health status.
4.     Ascertain availability of additional tests: Advise the Trial Chamber if any such medical tests are not available in Phnom Penh, and/or whether there is a sufficient medical or technological skill based in Phnom Penh to administer those tests adequately.
5.     Advise on additional tests: Report to the Trial Chamber on where and under what conditions medical tests that are considered essential for a diagnosis of Mr. Sary’s medical status might be carried out.
6.     Report on health status: Report to the Trial Chamber an expert opinion on the current state of Mr. Sary’s health and when he might reasonably be discharged from hospital-based care.
7.     Advise on changes to care: Advise the Trial Chamber on any changes that should be recommended in Mr. Sary’s medical care.

In response to that appointment, the president continued, the OCP and Lead Co-Lawyer for the civil parties had submitted questions concerning the health status of Mr. Sary for consideration by the doctors in their examination. Mr. Sary’s counsel also voiced concern as to the lack of qualifications of Dr. Vann Thary and timing of the medical report’s submission, which, they asserted, did not permit adequate time for counsel to review it and prepare questioning.

On November 1, 2012, the WESU notified the Chamber that Dr. Vann Thary was unable to take part in examining Mr. Sary due to his “very busy schedule at his workplace.”[7] Furthermore, WESU was not able to locate another Cambodian doctor for such assignment. The Chamber conferred and decided preliminarily to work solely with Prof. Campbell so that it could have grounds for future deliberations as to Mr. Sary’s health.

In his latest examination of Mr. Sary, Prof. Campbell reviewed Mr. Sary’s medical reports, including a recent report from Khmer Soviet Friendship Hospital, had contact with Mr. Sary on November 4 and 5, 2012, and consulted with Mr. Sary’s treating doctors at the hospital, namely Chea Lahun, Kum Somsan, Chok Thida, Van Met, and Ky Bousuor. [8] He then prepared a report on Mr. Sary’s health status, which has already been placed on the case file.[9]

According to Prof. Campbell’s report, the president concluded, while Mr. Sary’s physical condition is weak, he is able to remain concentrated while sitting through court proceedings. The expert concluded that Mr. Sary would be well assisted if changes were made to the facilities in the holding cell and better personal care was provided as opposed to the current care he receives.

Ieng Sary to Remain in Holding Cell throughout Today’s Public Hearing

After the president’s introduction to the matter, Trial Chamber Greffier Se Kolvuthy advised that all parties were present and that Mr. Sary was present, but in his holding cell, due to his health concerns. The president indicated that the Chamber wished to rule on a request by Mr. Sary. He said that the Chamber received Prof. Campbell’s medical report and another from his treating doctor, who indicated that Mr. Sary is very fatigued, feels dizzy, and has lower back pain, somewhat poor vision, and an inability to climb stairs. However, the professor had added, Mr. Sary is mentally and physically fit to observe the proceedings from his holding cell, from where he would also be able to consult his counsel. Therefore, the Chamber determined that Mr. Sary would be permitted to observe the proceedings from his holding cell for the whole day.

The Chamber also informed parties to the proceedings that the hearing today would be conducted in public. In response to an invitation by the president, International Co-Counsel for Ieng Sary Michael Karnavas advised that, having consulted with Mr. Sary, the latter had issued a waiver permitting his medical reports and conditions to be publicly discussed in today’s hearing.

Finally, the president advised that the judges would question the medical experts first, followed by the Ieng Sary defense team and the OCP. Lawyers for the civil parties were permitted to intervene only during the OCP’s session or afterward, if they felt there were additional issues that needed to be discussed. After this, other parties would be permitted to ask questions.

Expert Professor Campbell’s Findings on Ieng Sary’s Health Status

Court-appointed medical expert Prof. Campbell then took the stand. Responding to a series of biographical questions from the president, Prof. Campbell advised that he is 66 and a national of New Zealand, residing in its city of Dunedin and that there had been no changes to his professional qualifications or occupation since he had last testified before the tribunal. The president inquired whether, as a geriatrician, Prof. Campbell had experience in vascular or cardiac medicine. The professor confirmed that he is qualified as a specialist in internal medicine and that many of his patients suffered from cardiac and vascular conditions.

Prof. Campbell confirmed that in late August 2012, the Trial Chamber appointed him, together with Doctors Lina and Fazel, to assess the medical condition of Mr. Sary while they were all in Cambodia testifying as to the health status of Ieng Thirith. Prof. Campbell was among the three people who prepared and submitted a preliminary report to the Chamber in September 2012 concerning Mr. Sary’s health status. The professor also confirmed, when queried, that he had re-examined Mr. Sary in November 2012 pursuant to his re-appointment to such role by the Trial Chamber, and that he prepared the consequent medical report on Mr. Sary’s health status submitted to the Chamber in November.

With respect to Mr. Sary’s health status, there were two main areas of findings, the professor continued. First, as to cognitive function, Prof. Campbell found that Mr. Sary’s mental state remained unchanged from the state reported in September 2012. Second, as to Mr. Sary’s physical state, Prof. Campbell detailed that overall, he found Mr. Sary to be frailer and weaker than when he previously examined the defendant. In Prof. Campbell’s view, this could be attributed to having spent the last two months in hospital and having very little physical activity in that time.

The professor then detailed his findings as to a number of specific areas concerning Mr. Sary’s physical health:

·      Heart disease: Mr. Sary is reportedly stable on the treatment he is receiving. He is not short of breath when lying down, but he does become shorter of breath when he undertakes physical activity, although this is also due to his lack of physical activity at present.

·      Neck pain and lower back pain: Mr. Sary’s lower back pain is unchanged and is due to wear and tear caused by his condition of osteoarthritis. This, in turn, causes Mr. Sary neck pain. It is best treated with pain relief, which he is receiving, and with a back brace and cervical collar.[10]

·      Dizziness: Mr. Sary complains of dizziness. In Prof. Campbell’s view, this has three causes:

o   Benign peripheral positional vertigo: This is a disorder of the semi-circular canals that are an essential balance mechanism of the body. Debris accumulates in those canals which create a spinning sensation, or vertigo, when moving around, for example rolling. It was diagnosed in Mr. Sary’s case through having him perform the Dix Hallpike Maneuver. This entails having a person turn their head to 45 degrees, then lie back, with their head down at 20 degrees of extension. Then it is observed whether the patient experiences any beats of nystagmus, namely a series of rapid eye movements (REMs) to one side. Prof. Campbell noted that this test was difficult to do because of Mr. Sary closing his eyes in pain at one point, but he did manage to observe the necessary beats of nystagmus to diagnose the condition.
o   Occasional lower blood pressure: Mr. Sary experienced this at times because of, in Prof. Campbell’s view, heart disease and remaining stagnant. His blood pressure dropped when he stood.
o   Increased weakness: In Prof. Campbell’s view, Mr. Sary suffered this because of inactivity, and consequently felt uneasy when he stood, giving him a sense of dizziness and poor balance.

·      Vertebrobasilar ischemia: Prof. Campbell found no evidence of this.[11] By way of explanation of the condition, Prof. Campbell advised that four main arteries supply the brain: two carotid arteries at the front and two vertebral arteries at the back. These arteries were linked at the base of the brain in a “roundabout” like mechanism known as the Circle of Willis. If there is obstruction to one of those arteries, blood can flow through another artery to that area. Vertebrobasilar ischemia affects the hind part of brain; that is, not thinking, reasoning, or memory, but the cerebellum (affecting balance) and the brain stem (where the fibers from the front part of the brain pass down to the spinal cord. It also has nuclei for the cranial nerves, the nerves for the eyes that affect swallowing and talking.) However, Prof. Campbell found no evidence of damage to the fibers passing down the front part of the brain, or of damage to the cranial nerves. On examining Mr. Sary’s nervous system, he also found no evidence of damage to the hind part of the brain that join together to form the basilar artery.

·      Impaired blood supply to the brain: Prof. Campbell found no evidence of this on examination.[12]

In summary, Prof. Campbell found that Mr. Sary is 87, physically frail and weaker than before due to lack of physical activity for the last two months, and also experiences “dizziness, as is very common in people of his age, due to a number of causes.”

When formulating his recommendations for ongoing treatment and care of Mr. Sary, Prof. Campbell considered that:

·      Mr. Sary was more comfortable when lying flat, and that his holding cell would offer appropriate conditions for this.
·      He had examined Mr. Sary for one to 1.5 hours; in that time, Mr. Sary had appeared alert with no evidence of impaired concentration.
·      Mr. Sary’s medications have not been changed for a number of weeks.
·      Nothing would be gained by remaining in hospital. Doctors indicated he was partly there in case of an emergency in case his heart stopped and needed resuscitation, but in Prof. Campbell’s view, Mr. Sary “is not a fit candidate for resuscitation anyway.”
·      Mr. Sary needs physical activity.

Consequently, Prof. Campbell recommended that Mr. Sary:

·      Return to the detention center.
·      Use his holding cell where he can lie flat.
·      Use a soft collar.
·      Have his glasses prescription reviewed.
·      Not adjust his medications – Prof. Campbell noted that Mr. Sary’s treating physicians had altered his medications for his heart condition. However, in Prof. Campbell’s view, Mr. Sary’s heart condition was stable and additions to his medication were not appropriate. He added that while some medications could cause dizziness, Mr. Sary’s dizziness did precede those medications.
·      Have his blood pressure monitored while he was sitting – Prof. Campbell noted this in light of the fact that some of Mr. Sary’s medications lowered blood pressure.

Questions from the Bench Clarifying Methodology, Findings, and Recommendations

Judge Silvia Cartwright put a series of questions to the professor. She began by seeking Prof. Campbell’s confirmation that he had examined the report on Mr. Sary’s urological state prepared in 2008 by the urologists Dr. Kouch Hach and Professor Philippe Mangin. Prof. Campbell confirmed that he had examined that report and reported that there were no changes to Mr. Sary’s urological condition, concluding that while Mr. Sary needed to pass urine frequently, he could manage this in his holding cell with the assistance of a bottle.

Prof. Campbell also confirmed, when asked, that he had reviewed the November 2009 report prepared by Associate Professor Philip Brinded, a forensic psychiatrist. In addition, he confirmed that he prepared his first report on Mr. Sary in June 2011, at a time in which the expert had examined and provided separate reports concerning each of the accused.

The judge noted that there appeared to be some confusion as to whether other experts could be required to examine Mr. Sary. Prof. Campbell agreed that, as described by Judge Cartwright, he could be described, in lay terms, as someone providing “the first level of expert examination of an older person … someone over 65 years of age, and [who, in his] specialist field of geriatrics [was required to] be able to observe a number of complex, of often interrelated mental and physical conditions.” Prof. Campbell advised that he saw multiple medical and mental problems in his work and would refer patients to other experts if necessary, but he did not “feel additional referral is needed in this situation.”

Therefore, Judge Cartwright asked, had Prof. Campbell reviewed reports concerning Mr. Sary’s urological status, heart disease, general physical health, and mental status as at September 2012? Prof. Campbell agreed and added that in his view, Mr. Sary had been “comprehensively … and very well assessed” by Prof. Fazel and Dr. Lina as to his mental state on the last occasion, and further examination was not necessary.

Regarding Prof. Campbell’s current examination of Mr. Sary, the judge noted that there had been a suggestion that the most recent examination took a very short time. Prof. Campbell disagreed noted that normally he was allotted one hour to examine a patient, was in this case allotted more than this, and was familiar with Mr. Sary’s medical history.

Prof. Campbell confirmed that he has had patients presenting with similar symptoms over his career, elaborating that he often saw patients with “multiple problems [spanning] the spectrum of … multiple physical problems, often mental-cognitive problems, and also social-mental problems.” He concluded that generally geriatric medicine required assessment of multiple problems.

When asked whether a psychiatrist would approach a patient such as Mr. Sary differently from him, Prof. Campbell responded that their assessment of cognitive function would remain the same, but they would have a “different approach” with respect to “psychosis or depression,” although, in Prof. Campbell’s view, there was no evidence of this in Mr. Sary’s case, and as a geriatrician, he would be “attuned” to such illnesses.

Prof. Campbell also confirmed that he regularly ordered CT scans of patients’ heads and necks. But he denied that Mr. Sary’s doctors had expressed concern about the defendant’s mental status. He testified that reports on Mr. Sary never indicated any problems with mental function.

As to the September 2012 report Prof. Campbell had jointly prepared with Prof. Fazel and Dr. Lina, Judge Cartwright noted the report’s finding, at paragraph 21, that:

It is our opinion that Ieng Sary does not suffer from any mental illness or cognitive impairment beyond what would be expected for someone of his age and background, and therefore we have no recommendation to make in relation to mental state or cognitive function.[13]

Prof. Campbell confirmed that this was the starting point of his assessment of Mr. Sary’s mental state for his latest examination and that he saw no changes to Mr. Sary.

Judge Cartwright asked Prof. Campbell to elaborate on the formal and informal testing that he undertook in assessing Mr. Sary’s mental state. He advised as follows:

·      Informal testing: When a doctor is taking a patient history, they can “get a feel” for how well that patient can recall events. There were no such problems with Mr. Sary. Also, after Prof. Campbell’s first session with Mr. Sary, he began to chat with Mr. Sary about his family and grandchildren, asking where they were and what they were doing. According to the professor, Mr. Sary did not show any difficulty of recall. He added that often informal testing was useful because patients do not know they are being assessed.

·      Formal testing: Prof. Campbell also repeated the mini mental-state examination (MMSE) undertaken by Prof. Fazel and Dr. Lina and observed no change; Mr. Sary continued to score “above the level where one would consider cognitive impairment.”

Judge Cartwright advised the professor that the Chamber had permitted parties to discuss Prof. Campbell’s reports with others, and that the Ieng Sary defense team and OCP had done so, though the Chamber did not permit alternative expert examinations as it would not have been available within the time frame. She noted that it appeared in her view that the forensic psychiatrist the Ieng Sary defense team had consulted had not seen the September 2012 report prepared by Profs. Campbell and Fazel and Dr. Lina. Prof. Campbell agreed with this conclusion and indicated that in his opinion, the forensic psychiatrist’s comments were based on inadequate information and were thus “of little or no value.”

As to Ieng Sary’s ability to concentrate, Judge Cartwright noted it had been suggested he could not concentrate for long periods of time and this affected his ability to properly participate in the trial. She asked, if Ieng Sary did suffer from a “lower degree of concentration [than] 10 years ago,” what was the reason for this? Prof. Campbell responded that he did not notice any flagging in Mr. Sary’s concentration when examining him and felt that if he were comfortable in the holding cell and if the court sessions were only 1.5 hours with a break, this would be manageable by Mr. Sary. Prof. Campbell added that Mr. Sary is comfortable when lying flat and that the holding cell was “well set up and … most appropriate for him.”

Would a hospital bed, with a headpiece that could be raised or lowered, be essential, Judge Cartwright asked next, or would his current bed be appropriate? Prof. Campbell advised that if the bed could be elevated, this “would make it easier for him to look at the monitor. He was comfortable when lying flat when I saw him but it may make it easier for him.” He also noted that Mr. Sary had found the mattress “difficult.”

Judge Cartwright noted that Mr. Sary’s treating doctors had said they had been “exploring other treatment options.” Prof. Campbell agreed that surgery had been raised but that there was no lesion that would be appropriate for surgery.

Prof. Campbell confirmed that in his recommendation, a “prolonged period with no physical activity” had added to Mr. Sary’s weakness, noting that while Mr. Sary had been massaged while in hospital, he had not had any physical activity. Mr. Sary might not be willing to participate in physical activity, but it should be offered, the professor asserted. Muscle strength relates to our abilities, he continued; for example, our ability to stand up from a chair. Older people may require up to 100 percent ability to rise slowly from a chair. When lying for prolonged periods without activity, Prof. Campbell assessed, Mr. Sary may have lost some of his strength and ability to carry out basic tasks.

When probed for further details regarding a potential reduction in Mr. Sary’s medication, Prof. Campbell noted that a medication for back spasm had been given recently and a cautious reduction could be tested, although it would be unlikely to improve the situation.

Next, Judge Cartwright sought Prof. Campbell’s opinion about a critique of Prof. Campbell’s findings, in the letter from the forensic psychiatrist consulted by Mr. Sary’s team, that the professor’s findings constituted “a blanket dismissal of potential medication side effects based on the ipse dixit assumption that since the defendant’s medications had not been changed, a gradual emergence of subtle yet significant medication-related neurotoxicity can simply be pulled out or would be noted by his treated physicians.”

Asked to explain what this comment meant, Prof. Campbell said that he struggled to understand the statement himself. He noted that Mr. Sary was on a medication, Bromazepam, which might cause drowsiness and which Mr. Sary had been on that for a long time, but he noted that there is no evidence that it had been causing side effects. Prof. Campbell did not feel that any of Mr. Sary’s medications have been affecting his cognitive functions.

At this juncture, Judge Cartwright noted that Prof. Campbell had suggested in paragraph 17 of his most recent report that Mr. Sary could have some additional tests, namely quantitative immunoglobulins, light chain quantitation to exclude multiple myoloma and myopathy but that such tests “may evidently be difficult to obtain in Cambodia.” Prof. Campbell confirmed that he had consulted with Mr. Sary’s doctors on this. He added that he had previously obtained a serum protein electrophoresis test and this was normal; it did not indicate multiple myoloma.

Prof. Campbell elaborated that an additional test could be carried out to exclude a very remote possibility wherein multiple myoloma did not present with a change in the electrophoretic pattern, but this was “very unlikely,” so if there was difficulty in administering such a test in Cambodia, he did not think much would be gained by pursuing it. The other test related to the possibility of specific damage to muscle, since Prof. Campbell noted that Mr. Sary was on a medication called Lovastatin that could cause this problem. However, he noted that Mr. Sary had been on this tablet for many years so he did not consider it likely to be the cause of the defendant’s problems, which Prof. Campbell believed to relate to Mr. Sary’s inactivity.

The judge noted that in Prof. Campbell’s report, he advised that Mr. Sary would require more personal care than he was receiving when he was last in the detention center. Asked by Judge Cartwright to provide further, specific details as to the necessary care Prof. Campbell envisaged, the professor responded as follows:

·      Assistance in standing: Given Mr. Sary’s greater weakness, Mr. Sary requires more assistance to stand, as he is not able to walk as previously. He will also need help with dressing, showering, and personal care. Mr. Sary’s guards would be appropriate caregivers and not someone more specialized, but the detention center would need to review its staffing to ensure that it had enough staff to permit Mr. Sary to move safely.

·      Physical therapy to develop leg strength: Prof. Campbell said that it would need to be discussed with Mr. Sary whether he were willing to undertake a program of physical therapy, particularly to improve his leg strength. If he were, it would need to be delivered by “someone with expertise, such as a physiotherapist.” This treatment could be offered in the detention center, and while the program would need to be established by a physiotherapist, the guards could deliver it. The program would require, for example, ankle cuff weights to build strength in the lower limbs. It did not have to be a sophisticated program, just someone to start it, and then to adjust weights as Mr. Sary improves. However, Mr. Sary needed to be willing to participate before it could be tried.

Prof. Campbell said that for someone of Mr. Sary’s “age and frailty,” caution was required before referring him to additional experts and subjecting him to additional tests or investigations; Mr. Sary could, for example, have angiopathy to examine the blood vessels at the base of his brain, but this would not add to his current health management.

The professor confirmed that he disagreed with Mr. Sary’s consulting physicians as to whether Mr. Sary suffered vertebrobasilar disease and believed there was no need to consider surgery or any other related treatment to modify that condition. He elaborated that this was formerly a very common diagnosis to which a number of symptoms could be attributed but that he did not find any evidence of this condition in Mr. Sary. Neither did he feel that there were changes to Mr. Sary’s urological or cardiac state, though, the professor qualified, Mr. Sary’s cardiac condition is “stable” but “very precarious,” due to his “significant underlying heart disease.”

Based on his own multiple assessments of Mr. Sary as well as the comprehensive assessment by Prof. Fazel or Dr. Lina, Prof. Campbell concluded that mental state was not an issue in Mr. Sary’s case. Nothing would be added by undergoing further assessments, in the professor’s view. In addition, as to Mr. Sary’s orthopedic condition, Prof. Campbell noted that Mr. Sary already had a back brace, but suggested he also use a neck brace to prevent sudden movement and the resultant onset of vertigo.

Reiterating an earlier point, the professor concluded that he did not “feel that there are any further investigations that would lead to treatments that would lead to improvements” of Mr. Sary’s condition, although a gradual deterioration of Mr. Sary’s health was “inevitable.” He confirmed, when prompted, that he abided by his diagnoses and recommendations.

Heated Discussion on Letter from Forensic Psychiatrist Consulted by Ieng Sary’s Team

The floor was given to Mr. Karnavas, who first turned to Prof. Campbell’s assessment that the report of the forensic psychiatrist Mr. Karnavas consulted was of “little or no value.” Mr. Karnavas asked whether Prof. Campbell’s assessment would change if the forensic psychiatrist were given access to all Mr. Sary’s medical reports. International Deputy Co-Prosecutor William Smith objected that this question was speculative, as it asked Prof. Campbell to presume that if the forensic psychiatrist had access to the same documents, he would have the same opinion. Mr. Karnavas said this was precisely his point and again put his question to Prof. Campbell. Mr. Smith reiterated that the question was “not really appropriate” for the professor; rather, it was a question for the bench.

Mr. Karnavas persevered nonetheless in asking Prof. Campbell whether the forensic psychiatrist would have been “in a better position to comment” had he been able to review all reports concerning Mr. Sary’s health. International Lead Co-Lawyer for the civil parties Elisabeth Simonneau Fort objected on the basis that this question appeared to be the same question as that originally asked and was “not only repetitious” but also “inappropriate.” Mr. Karnavas explained that the forensic psychiatrist was only given one report and had very little material to review.

Asked a substantially similar question by Mr. Karnavas again, Prof. Campbell began to respond that he “would consider it totally unnecessary” but was cut off by the president, who directed Mr. Karnavas to rephrase his question so as to prevent Prof. Campbell from potentially speculating.

Obliging, Mr. Karnavas said he did not care about Prof. Campbell’s view as to the necessity or relevance of obtaining a second opinion. Rather, he wanted to know, in light of Prof. Campbell’s dismissal of the forensic psychiatrist’s letter, whether a doctor having more extensive access to the relevant documents would be in a better position to assess Mr. Sary’s condition. Again, this prompted an objection from Mr. Smith that Prof. Campbell did not “dismiss the letter [of the forensic psychiatrist] outright” and that to suggest as such was inaccurate.

“I understand the need to obstruct,” Mr. Karnavas retorted. He said that he was happy to go through the letter from the forensic psychiatrist to assess his comments, and that the professor had commented that he considered the letter to have “little or no value.” He reiterated his earlier question. Before Prof. Campbell could respond, the trial judges huddled together in conference.

After several minutes, the president advised Mr. Karnavas that the Chamber had noted his concerns regarding the report of Prof. Campbell and had also received his request that the letter detailing the forensic psychiatrist’s opinion not be put onto the case file for this session. However, the president went on, this letter was now being debated and was being done so through questions of a speculative nature. It was the Chamber’s discretion to decide on these matters, the president said, and not the expert; therefore, Prof. Campbell was not permitted to respond to such a question.

Mr. Karnavas said that “the door was opened by Judge Cartwright” by her reference to the letter. In addition, he continued, it was clear that Prof. Campbell had seen the letter, as he surely could not have had such a “cavalier” attitude in saying that it had “little or no value.” While he continued to insist that his question was not speculative, he agreed to move on because he took the court’s response as indicating that he was not permitted to continue with this line of questioning.

The defense counsel then sought to refer to the “impressive” curriculum vitae (CV) of Dr. Harold J. Bursztajn of Harvard University, which he noted was already on the case file.[14] He explained that by referring to Dr. Bursztajn as a “supposed” forensic psychiatrist, Judge Cartwright seemed to impugn the reputation of Dr. Bursztajn and “surely” Prof. Campbell could testify as to whether he had heard of “the institution Harvard University Medical School,” where Dr. Bursztajn is based.

This prompted yet another objection from Mr. Smith, first on the basis that Mr. Karnavas had “disrespectfully” classified Prof. Campbell’s opinion as “cavalier” and second, that Mr. Karnavas was now trying to refer to evidence that he had not applied to formally submit to the court under the ECCC Internal Rules.[15] Dr. Bursztajn had not had an appropriate amount of time, the prosecutor continued, to formulate a proper opinion.

In response, Mr. Karnavas withdrew his word “cavalier” and instead characterized Prof. Campbell’s opinion of Dr. Bursztajn’s report as “more or less cavalier,” at the same time apologizing to the professor if he had caused any offense by his use of the first characterization. However, Mr. Karnavas continued, Mr. Smith was “absolutely wrong” in his characterization of what Mr. Karnavas had been attempting to do. He was not attempting to table the letter in court, he asserted; he simply thought he should disclose to other parties that he had obtained such letter and was being “forthright” and “conscientious” in notifying parties. His current discussion of that letter was in view of the fact that Judge Cartwright had described Dr. Bursztajn as someone who was “supposedly” a forensic psychiatrist. In addition, Mr. Karnavas wished the record to reflect that his team had “acted properly throughout these proceedings.”

The bench conferred again at this point. After several minutes, Judge Cartwright responded on their behalf, advising that Mr. Smith was correct in summarizing that the purpose of the Trial Chamber allowing counsel to consult “appropriately qualified medical personnel” about Prof. Campbell’s report was in order to enable them to prepare for the hearing today. However, the difficulty with the letter filed by the Ieng Sary team, the existence of which, Judge Cartwright accepted, had been told to parties “for purposes of utmost transparency,” could not be treated as an expert opinion “for all the obvious reasons.” She noted that she could see Mr. Karnavas agreed with that, and said that Mr. Karnavas could “put to the expert information from that letter to enable the court to understand fully Prof. Campbell’s expert opinion.” No one’s reputation was being impugned, she stated, but they were simply unable to make an opinion as to whether Dr. Bursztajn was an expert, “it’s as simple as that.” Finally, Judge Cartwright said, as the letter came in and was filed this morning, Prof. Campbell was given a copy of it this morning.

Mr. Karnavas acknowledged that this was “sufficiently clear,” his team was not intending to claim this was an expert opinion, and he did not “expect it to cause this much controversy.”

Ieng Sary’s Ability to Concentrate

At this point, Mr. Karnavas said that he would move on to something a little “more pleasant.” Prof. Campbell agreed, when queried by Mr. Karnavas, that in hearings such as those before the ECCC, a certain level of concentration was required, particularly when discussion was being transmitted through interpretation of varying levels of quality. Mr. Karnavas queried whether an individual would require the same level or quality of concentration when participating in or following the proceedings when sitting in the courtroom as opposed to sitting in a holding cell. Prof. Campbell said that the concentration quality would be the same.

Was Mr. Sary “fully capable of following the proceedings, concentrating for the entire day, assisting [his] lawyers?” Mr. Karnavas asked. Prof. Campbell agreed that he was. Mr. Karnavas then said that prior to today’s proceedings, he visited Mr. Sary, and “he was in bed downstairs, with the oxygen, and he’s on his side, and he’s barely coherent.” He pressed the expert to testify whether that reflected someone “fully capable” of “assisting in his own defense.”

Interjecting again, Mr. Smith said that while the line of questioning was appropriate, Mr. Karnavas was “giving evidence from the bar table as to his assessment of the mental or physical condition of his client,” which was inappropriate and attempting to place on record something that was not in evidence. Mr. Karnavas rephrased his question, first asking the professor whether he had seen Mr. Sary today. The professor said that he had not, but had seen him in hospital, and had previously seen him in the holding cell and in the detention center. Prof. Campbell added that “always on those occasions, [Mr. Sary] has been fully able to concentrate and to respond.” He said he “imagined” that Mr. Sary might be momentarily breathless upon first being transferred from the detention center to the holding cell, but that once settled, Professor Campbell saw “no reason why he shouldn’t be able to concentrate and respond.” Mr. Karnavas questioned, “Of course now you’re speculating, aren’t you doctor?” The professor responded that he was giving his opinion about Mr. Sary based on his examination and the time he had spent with him.

Mr. Karnavas inquired if Mr. Sary was in his holding cell and “dozing in out,” “dizzy or even asleep,” would such a person be cognizant enough to assist in his or her own defense. Prof. Campbell said that he had not seen any evidence with respect to Mr. Sary that this would occur. Mr. Karnavas clarified that this was a general question and not one referring to Mr. Sary. At this juncture, Mr. Smith objected that this was a “vague question” that put several factual propositions to the witness, and that Prof. Campbell was being asked to give a “specific legal opinion” to a vague factual proposition. “Of course” a person sleeping could not be assisting in his or her own defense, Mr. Smith added.

Mr. Karnavas said that “clearly” Prof. Campbell, an expert who had previously testified before the ECCC, could answer a general question like this. The professor responded that there were two issues here: first, whether a person could concentrate, and whether they were concentrating at the time. He responded that he had himself dozed off in many a lecture, and that many people did doze off when there was material that was not of interest to them. Mr. Karnavas immediately began to respond but was cautioned by the president to speak more slowly for the sake of proper interpretation. Mr. Karnavas apologized, explaining that “sometimes my exuberance takes the better of me.” Asked to confirm whether his view was that dozing off was just a process and whether someone dozing off in proceedings meant that a person was nonetheless following proceedings, Prof. Campbell responded, “You’ve got it wrong” and that what the professor had said was that Mr. Sary was “capable of concentrating.”

Next, the defense counsel asked whether Prof. Campbell had reviewed all the medical documents concerning Mr. Sary prior to examining him on the most recent occasion. Prof. Campbell confirmed this. Mr. Karnavas noted that it had appeared Prof. Campbell had been provided with transcripts of previous relevant hearings and correspondence tabled by the Ieng Sary defense team. Prof. Campbell agreed that this was true, and added that some conclusions of some doctors were very difficult to understand, and this may have been a problem of interpretation as some of the conclusions were “clearly not correct.”

Mr. Karnavas went on that in a letter on October 24, 2012, his team noted that Dr. Lim Sivutha had testified as to having problems interviewing Mr. Sary, the maximum time of which had been 15 minutes.[16] Mr. Karnavas asked whether Prof. Campbell disagreed with Dr. Sivutha’s medical assessment. Mr. Smith interjected at this point, requesting for the relevant passage from the transcript to be read to the professor, since these statements were not as general as Mr. Karnavas had said. Rather, he asserted, it was “not quite clear” whether all interviews had to be limited to 15 minutes or whether that was only an isolated incident and other interviews “just happened to be for 15 minutes.” Mr. Karnavas said that the purpose of submitting the October 24 letter was to assist Prof. Campbell by highlighting areas of concern with the testimony of Dr. Sivutha. He then quoted from his team’s letter rather than the transcript:

Dr. Lim Sivutha’s statement concerning Mr. Ieng Sary’s concentration: “To me, I do not see any concern regarding this aspect, but of course, I’m not the expert in this area”[17] and “I don't think there was any issue in relation to his concentration,”[18] even though Dr. Lim Sivutha recognized that “Mr. Ieng Sary had fatigue when he had to respond to a question, so fatigue was the main problem … and if we raised our voice for example, then he attempted to respond in a louder voice, as well. Then he was rather exhausted, so we had to limit the time for the interview. I think so far the maximum time we spent interviewing him was about 15 minutes.”[19]

Assuming Dr. Sivutha was correct in reporting what he had observed, Mr. Karnavas questioned, would someone in this condition, who was “fatigued after approximately 15 minutes,” be capable of “following the proceedings and concentrating to the level necessary” to assist in his or her own defense? He was not asking for Prof. Campbell’s observations when he examined Ieng Sary, he noted, but just based on Dr. Sivutha’s report. Prof. Campbell responded:

The transcript [at] page 62 indicates that the interviews would normally take 10-15 minutes, and that would be the normal time for someone reviewing a person’s condition. There’s no indication in the transcript that it was fatigue limiting that. That was just the normal time, as I’ve said, that one would interview someone when someone was doing a routine review.

Prof. Campbell said that this was not his experience with Mr. Sary, to which Mr. Karnavas stressed that this was not what he was asking Prof. Campbell, he was asking the professor a more general question.

Mr. Smith objected that it appeared there was one occasion where the doctors stated that Mr. Sary was fatigued and exhausted, and that to characterize that all interviews could only have proceeded for 15 minutes due to this factor was misrepresenting the transcript. Mr. Karnavas responded that Mr. Smith’s objection was a “clever” form of obstruction as it was “mischaracterizing” Mr. Karnavas’s questions. He asserted that he was attempting to elicit from Prof. Campbell the level of concentration required, specifically whether, if someone was so fatigued, such a person was capable of concentrating to the necessary level. Mr. Smith rose again to object, to which Mr. Karnavas commented, “No replies are normally allowed, Mr. President.” Permitted by the president to proceed, Mr. Smith objected again that Mr. Karnavas was “mixing questions of fact and speculation.” He could put specific enough questions of fact, or a hypothetical situation, to the expert, the prosecutor stated, but an answer to a question combining the two is virtually “worthless.”

Mr. Karnavas attempted to explain that this was why Prof. Campbell was given the transcript, prompting the president to cut him off firmly, advise that Mr. Smith’s objection was sustained, and direct Prof. Campbell not to respond to it.

Moving on, Mr. Karnavas asked whether the professor attempted to replicate the exact hours of a court’s normal hearing session and break pattern in his examination of Mr. Sary. Prof. Campbell said he did not; he saw Mr. Sary for an hour to an hour and a half, then there was a short break, after which Mr. Sary came back and was “fully alert.” Neither Prof. Campbell nor Prof. Fazel had seen any need for simulating the court’s normal hours, he added, noting that Mr. Sary “had concentrated fully” and “there had been no evidence of cognitive impairment.”

Was it the doctor’s medical opinion, Mr. Karnavas asked, that based on examining a person with such constraints in the morning, as the professor did with Mr. Sary, they would have the same capacity to concentrate in the afternoon? This question, Mr. Smith objected, again mixed facts with a hypothesis: Prof. Campbell had, in particular, been testifying all morning that Mr. Sary did not have any mental constraints but Mr. Karnavas was premising his question on a person having physical and mental constraints; this had not been the professor’s evidence and this type of question sought to mislead the court.

Rephrasing, Mr. Karnavas asked whether “given his state,” be it physical, mental or whatever, that “obviously it must follow, as day follows night,” that that state as seen in the morning would be maintained in the afternoon. The professor responded, “Clearly people’s ability to concentrate might vary. For example, we might like to have a snooze after lunch, for example. But this does not mean a person is not capable of concentrating.” The professor added that Mr. Sary was also examined in the afternoon since there was a need to take a lunch break in between and that Mr. Sary underwent memory testing at that time and “performed well” in those tests.

Asked for the duration and times of his examination, Prof. Campbell said that he examined Mr. Sary from 10:30 a.m. or 10:45 a.m. to 12:30 p.m. in the morning and then from 1 p.m. What then, Mr. Karnavas asked, was Mr. Sary’s ability to concentrate at 9 a.m.? The professor said he did not see Mr. Sary at 9 a.m. but had no reason to believe that his condition would differ then, or at 3:30 p.m. or 4 p.m. and that he would be “capable of the same level of concentration.” “Capable,” the professor explained, meant:

Should he have wanted to concentrate, he would have been able to. I mean, there are some things that mean we concentrate to a greater degree, other things, if the material is not so relevant to us, we may not concentrate to the same degree. But what I’m saying is that he should be capable of concentrating should he consider it in his interest to do so.

Did this mean, Mr. Karnavas pressed, that Mr. Sary could “will” or “force” himself to concentrate? Mr. Smith objected, apologizing for his repeated objections but saying that as Prof. Campbell’s testimony was important, it was consequently important that the questions put to him were clear; these questions, he contended, were not and threatened to be “misleading.”

The use of the word “capable” was the point here, Mr. Karnavas said. Mr. Sary was 87; at times on oxygen or in pain. Was the professor suggesting, he asked, that Mr. Sary was dozing off because he wanted to, or whether it was because he was unable to do so? Prof. Campbell responded:

Firstly, he is physically frail, and that means he will tire more easily than other people, but the length of time the court’s sessions are not such that they would be too long for him. Secondly, the fact that he dozes off is not an indication that he’s not capable of concentrating; not necessarily a reflection on his physical state. We all doze off on occasions.

Mr. Smith rose and stated, with a laugh, that this was not an objection, but as the professor was here only for the day, he wished advice as to how much further time Mr. Karnavas would spend on his examination so that the OCP and the civil parties could then plan, as well as be allocated, the same amount of time. Mr. Karnavas said that he would have been “much further ahead” had it not for some “gratuitous” and “unfounded” objections but that he would need about another hour to question Prof. Campbell.

In response to an inquiry from the president, Mr. Smith advised that the OCP would require approximately 45 minutes to examine the expert, although this could depend on the further issues defense counsel put to the expert this afternoon. Ms. Simonneau Fort added that, for the part of the Lead Co-Lawyers for the civil parties, they would require no more than approximately 15 minutes.

At this point, the Trial Chamber judges conferred on these matters. Upon resuming their places, the president advised that Mr. Karnavas would be given another 45 minutes after lunch to put questions to the witness, with the remaining time reserved for OCP and the civil party lawyers, followed by a period in which all parties would be given an opportunity to comment.

Further Consideration of Mr. Sary’s Condition and Prof. Campbell’s Testing Methods

After the break, a new audience of 100 villagers from Batheay district, Kampong Cham province took their places in the public gallery. They witnessed Mr. Karnavas’s resume questioning Prof. Campbell by first asking whether, when the professor examined Mr. Sary, the defendant was able to “get out of bed.” The professor advised that Mr. Sary could do so with assistance, clarifying, when pressed, that he was not able to get out of bed without assistance. The professor had also arranged for Mr. Sary to sit up with assistance, he explained, noting that Mr. Sary could sit on a chair with a back but could not sit on the side of the bed without support and that he had assistance to sit up on the bed from a lying position. Mr. Sary was, however, able to roll on his side unassisted.

With respect to the defendant’s neck, Prof. Campbell advised that Mr. Sary “had full movement in his neck.” When prompted, the professor said that Mr. Sary complained of numbness from just above his wrist and in the lower parts of his shins. Prof. Campbell’s view was that this may have owed to peripheral neuropathy — a disorder of the peripheral nerves where full sensation from Mr. Sary’s nerves might not be coming back.

Prof. Campbell also detailed examining Mr. Sary’s back, including his lower back, but not his buttocks, and did not find any bedsores. As for relieving himself, Prof. Campbell advised that, “once he had a bottle,” Mr. Sary would be able to relieve himself. Did this mean, Mr. Karnavas asked, that Mr. Sary could “reach over, grab the bottle, lift himself up and urinate”? Prof. Campbell responded that Mr. Sary was urinating lying down but may have needed assistance with the whole process.

Mr. Karnavas then sought clarification from the professor as to his use of the terms “giddiness” and “dizziness” in his report, and whether these terms referred to the same thing. Prof. Campbell confirmed that he did indeed use these “non-specific terms” interchangeably to describe symptoms including:

·      a spinning sensation;
·      vertigo;
·      a light-headed faint feeling if blood pressure is low; or
·      a sense of instability if balance or strength led to a feeling of insecurity when standing.

Prof. Campbell explained that Mr. Sary’s dizziness, in his view, arose from a vertigo feeling when Mr. Sary turns his head, which, he said, should be preventable with neck collar; a faint feeling if sitting for prolonged periods and his blood pressure is low (but if lying in bed this would not be a problem); and standing and feeling unsteady, which, he noted, would not be a problem while listening to court proceedings. Mr. Karnavas said that his question was whether dizziness would affect Mr. Sary’s ability to concentrate. “It’s impossible to speculate across the whole range of dizziness. When we talk about Ieng Sary, no, his dizziness would not affect his ability to concentrate,” Prof. Campbell concluded.

Did this mean, Mr. Karnavas insisted, that Prof. Campbell was not “willing to go so far as to say with any degree of med certainty that dizziness would not impact one’s ability to concentrate”? Prof. Campbell responded that dizziness arises from a number of different causes and whether it affected concentration depended on the cause of dizziness. “So the answer to my question is yes,” Mr. Karnavas stated. Prof. Campbell replied that the answer is that “it is of no relevance because we’re not speculating about everyone who has dizziness. We’re talking about one specific person.”

Moving on, Mr. Karnavas asked the professor to detail the tests he utilized with respect to Mr. Sary’s dizziness. Prof. Campbell responded that he had administered the Dix Hallpike Maneuver and lying and standing blood pressure tests. He added that dizziness was a “subjective sensation,” however. Mr. Karnavas seized on this, stating that this was precisely what he was getting at – that determining impact on concentration was a subjective matter. In answer to this, the professor reiterated his findings and recommendations as to the causes and treatments for dizziness and his view that this would not affect his concentration.

“It seems to me,” Mr. Karnavas said next, that the “board” of Cambodian doctors had reached a different conclusion as to the cause of Mr. Sary’s dizziness. Prof. Campbell confirmed that they felt Mr. Sary had vertebrobasilar ischemia. However, Prof. Campbell said, Mr. Sary had “long-standing blood pressure, heart disease, and most certainly athrosclerosis,” involving the blood supply to his head. Mr. Sary exhibited none of those qualities that could be evidence of vertebrobasilar ischemia, Prof. Campbell continued, also noting that there was no sign that Mr. Sary experienced any of the relevant symptoms, namely brain stem or cerebella strokes or ischemia.

In conclusion, the defense counsel asked, it seemed Prof. Campbell did not feel that any of Mr. Sary’s conditions would impact his ability to concentrate. The professor said that Mr. Sary “will tire easily obviously, because he lacks physical strength … but given that he has been largely inactive and he will be lying down, I don’t think that will be a problem.” Therefore, is the “bottom line” that these doctors “just got it wrong?” Mr. Karnavas asked, noting he may have been “too blunt, but sometimes bluntness cuts to the chase.” Mr. Smith objected that he may well have been too blunt, as the previous doctors testified on a wide range of issues. He urged Mr. Karnavas to be specific as to which aspect of their finding was, in Prof. Campbell’s view, “wrong.”

Mr. Karnavas said his question was clear and did not call for speculation on the part of the professor or objections, presumably on the part of the OCP. “There are no signs or symptoms at present that would indicate that Ieng Sary is suffering from a lack of blood supply to his brain” and no evidence that this was contributing to his symptoms, Prof. Campbell responded. Current evidence would indicate that symptoms commonly attributed to vertebrobasilar ischemia are often in fact attributable to other causes, he added.

The combination of medication that Mr. Sary had received, Prof. Campbell said, might perhaps be contributing to Mr. Sary’s dizziness, as was observed in about 25 percent of people with dizziness. However, the professor added, a change to his medication might not assist in reducing his dizziness given that Mr. Sary’s observed vertigo preceded the prescription of those medications. “My approach to his management may well be different. I commonly reduce medications, especially in older people,” due to them often suffering adverse effects from medication, Prof. Campbell concluded.

Mr. Karnavas said that it appeared Prof. Campbell did not have an opportunity to discuss Mr. Sary’s condition with Dr. Lim Sivutha. Prof. Campbell said that if his name was not listed, it means he was not consulted, and that the arrangement was that the doctors would meet with Prof. Campbell and discuss his condition before and after Prof. Campbell’s examination with Mr. Sary. Why then, Mr. Karnavas asked, was Prof. Campbell unable to consult with Dr. Sivutha? Prof. Campbell said that he was not able to testify to this as he did not make the arrangement with doctors to meet with him. Prof. Campbell did not personally ask Dr. Sivutha to attend, as he did not note his absence.

Prof. Campbell advised that he felt he had gotten a “full account” of Mr. Sary’s condition from his treating doctors at the Khmer Soviet Friendship Hospital, including from the specialist neurologist and specialist cardiologist. He did not know who had arrived at the diagnosis of vertebrobasilar ischemia but said that he indicated to those doctors that he disagreed with this finding. Prof. Campbell confirmed he had copies of all their reports, including the CT scan of the cervical region. Prof. Campbell concluded, in consultation with a radiologist in Dunedin, that “the changes within the cervical spine were no greater than one would expect in a man of Ieng Sary’s age. There was no indication of encroachment on the vertebral arteries.” Additional tests of those arteries — namely a CTI or MRI angiography — were possible, but in his view, no symptoms or signs would justify those additional tests.

Mr. Karnavas said that he took it from Prof. Campbell’s answers that he had a sufficient amount of time to prepare the report and would have asked for more time if needed. The professor confirmed he had plenty of time and had, in advance, read the other doctors’ reports and relevant literature. He had ample opportunity also to examine Mr. Sary.

Returning to the question of Mr. Sary’s concentration over the course of the day, Mr. Karnavas asked whether Prof. Campbell had tested Mr. Sary in the afternoon on events that had occurred in the morning. Prof. Campbell acknowledged that he had not tested this specifically but that it was clear Mr. Sary was aware for it. In particular, when they undertook the Dix Hallpike Maneuver again, Mr. Sary clearly understood what was involved.

Tense Debate Over the Value of Seeking Second Opinions in Mr. Sary’s Case

Mr. Karnavas asked whether the expert had ever been asked to give a second opinion. “My whole professional life involves giving a second opinion,” Prof. Campbell said, and occasionally “tertiary opinions.” Therefore, Mr. Karnavas asked, was such a practice common? Prof. Campbell responded, “It depends very much on the expertise of the doctor. … If one is a consultant, one is asked to give a second opinion by the primary care physician. In a hospital … we may well get called in to give a further opinion.”

Did this mean, then, that someone with a different specialty might often be called in to look at a case from a different perspective? Mr. Karnavas pressed. Prof. Campbell agreed, and added, when questioned, that if he wanted a further opinion in a case, he would ask for it; for example, if he had a patient with cancer, he might consult an oncologist. Mr. Karnavas questioned whether patients were especially likely to request a second opinion where the prognosis was not good. Prof. Campbell agreed this was so and said that if this were the case for Mr. Sary, “we would ask for that.”

The defense counsel noted that in Dr. Bursztajn’s letter concerning Prof. Campbell’s report, Dr. Bursztajn had opined, “It is clear that his methodology is unacceptable by any accepted or reliable standard for examination of competency to stand trial” and proceeded to list three supporting reasons for this conclusion. Prof. Campbell sought to make comment on this opinion, but Mr. Karnavas cut him off, entreating the doctor’s permission to “go step by step.” Before they could proceed further, Mr. Smith objected that “the purpose of this document … was to assist the parties in understanding the professor’s report” but that now it seemed the defense was using statements from people who “were not experts before this court” in a manner that did not permit Prof. Campbell to review the supporting medical reports with time to make a considered opinion. The OCP did not object to the underlying basis of the opinion to be put to the professor, Mr. Smith said, but to the putting of such statements, since the “quality of the [letter], the time taken to prepare for it, is certainly not sufficient.”

Responding to that “five-minute objection,” Mr. Karnavas said that he thought he had been following Judge Cartwright’s directions on the proper use of the document. He added that he specifically cut Prof. Campbell off to prevent him from delving into detail as to the document’s substance. Instead, Mr. Karnavas said, he wanted to give Prof. Campbell an opportunity to justify why “his work should not undergo any scrutiny” through the seeking of a second opinion, since Prof. Campbell “seemed to flag … that it’s unnecessary.”

Prof. Campbell disagreed, responding, “No expert is an expert when he is basing his opinion on very little information and does not have the full story.” He added that “a very well qualified forensic psychiatrist,” namely Prof. Fazel, examined Mr. Sary in August 2012 and testified on why Mr. Sary was indeed fit to stand trial. This examination was comprehensive, and Prof. Campbell had not observed any changes since then and could see no need, for example, to invite Prof. Fazel back to repeat the assessment. Mr. Karnavas persisted that it was his impression Prof. Campbell did not feel that Dr. Bursztajn needed to be engaged to give a second opinion. As to whether this was an accurate assessment of his position, Prof. Campbell responded, “I feel there is no need at all. Ieng Sary has been fully assessed by Dr. Seena Fazel, who is a very qualified forensic psychologist from Oxford. His opinion is clearly expressed in the September 3 report. As I’ve said, there has been no significant change since then.”

Mr. Karnavas queried whether Prof. Campbell had seen Dr. Bursztajn’s CV. Mr. Smith stood to make an objection, but Mr. Karnavas spoke first, stating that it was a “simply question” and that he could not see why Mr. Smith “deliberately wants to obstruct the proceedings.” Mr. Smith said he took offense to this characterization and that reading out CVs of people from Harvard or any other university was inexplicable and inconsistent with the reasons for which the Trial Chamber had permitted Mr. Karnavas to consult Dr. Bursztajn.

By way of explanation, given Mr. Smith’s “inability to follow” Mr. Karnavas’s strategy, Mr. Karnavas said that he wished to know whether Prof. Campbell had seen the “impressive 29-page CV” of Dr. Bursztajn and whether Dr. Bursztajn could be an expert. Mr. Smith objected once more that the doctor could not provide an expert’s report on Mr. Sary’s health, and suggesting otherwise was inappropriate.

The president interjected, directing Mr. Karnavas to rephrase his question, though adding, before permitting him to do so, that what Mr. Karnavas now sought to discuss was outside the scope of today’s hearing, which was whether Mr. Sary was able to participate in the proceedings. The Chamber noted that Mr. Karnavas had used “inappropriate” and irrelevant words and that the counsel therefore had no more time to put questions to Prof. Campbell.

Nevertheless, Mr. Karnavas insisted on “making his record.” He explained that Dr. Bursztajn had been first referenced by the bench. Additionally, he argued, as Prof. Campbell had been chosen by the Trial Chamber, the professor had “obviously every reason to be very guarded about his own expertise.”  Mr. Karnavas continued:

[Prof. Campbell] has no compunction saying that the Cambodian doctors are wrong and that he is right, but he does not wish to have others look at his reports and examine, give second opinions, or a third opinion. This is not the first time that the professor from Harvard has been exceedingly critical of Dr. Campbell’s work, and the whole purpose of this discussion now, in light of his own opinions…

Before the counsel could finish his statement, the president interrupted, stating that Mr. Karnavas had an opportunity today to examine Prof. Campbell’s report and not “verbally attack” him. Given an opportunity by the president to respond, Prof. Campbell said:

Firstly, I did not call into question the expertise of the professor from Harvard. I did call into question his opinion, because it was not based on all the facts in the files. Thirdly, the reason I do not feel that we need another forensic psychiatrist examination is that we have had Ieng Sary very recently examined by another very competent, experienced forensic psychiatrist, Seena Fazel.

“And that’s your opinion?” Mr. Karnavas questioned. “No, those are the facts,” Prof. Campbell responded. “Seena Fazel is a very well qualified forensic psychiatrist. He has examined Ieng Sary recently … and there is no evidence of change in Ieng Sary’s cognitive or mental state since then.” Mr. Karnavas asked whether that meant Prof. Campbell did not believe that another doctor, and in particular this doctor who was critical of Prof. Campbell, should be called in to give a second opinion. The president directed the medical expert not to answer that question and adjourned the hearing for the mid-afternoon break.

Elaboration on Various Methodological Approaches and Findings

Beginning questioning on the part of the OCP, Mr. Smith wryly noted that the last session of the day was often the most difficult for anyone to concentrate and therefore asked Prof. Campbell to “persevere.” He first asked Prof. Campbell to detail his experience in dealing with people with “alleged cognitive impairments,” particularly in the context of challenges to their ability to stand trial or make decisions concerning their legal rights. In response, Prof. Campbell explained his experience in filing expert reports before New Zealand courts on patients with cognitive impairment, on the capacity of persons whose wills were being challenged, and on persons with both physical and cognitive impairments.[20] How many reports had the professor written on this issue of proper mental capacity to carry out their rights? Mr. Smith asked.

Mr. Karnavas interjected at this point that the question was “vague and irrelevant” as the professor’s ability to testify on the cognitive ability of people in relation to wills was “irrelevant” and his capacity to assess such situations was not at issue; the issue, instead, was Mr. Sary’s health condition and capacity to participate in his trial. As the president found that the question was relevant, Mr. Karnavas’s objection was not sustained.

Directed to respond to the question, Prof. Campbell said that he made such assessments “very frequently” as well as assessments on people’s capabilities when there was the prospect of a power of attorney being granted. He would make such assessments perhaps “every month or two” of his practice, he said.

The prosecutor asked Prof. Campbell whether fitness to stand trial depended on cognitive ability and ability to understand, follow, and participate in a court process, as Prof. Campbell and his co-authors had noted in their September 3, 2012, report on the Strugar case test. Prof. Campbell agreed that this was so and that in their August 2012 examination of Mr. Sary, he had focused on Mr. Sary’s cognitive function, whereas Prof. Fazel and Dr. Lina focused on his understanding of the relevant processes.

As to cognitive abilities, Mr. Smith queried whether Prof. Campbell was involved in administering the MMSE. In that assessment, the professor responded, he focused on a physical assessment, although everyone’s findings were discussed together in formulating the final report. As to whether “significant discussions” with Mr. Sary were necessary to diagnose him properly, Prof. Campbell said that this was so. He noted that ensuring the “consistency of their response” and giving a history was something they focused on very closely. In dealing with Mr. Sary, however, Prof. Campbell had no concerns regarding his cognitive ability.

Specifically on the MMSE, Prof. Campbell advised, when queried, that it was a standardized test, which considered orientation in time and place, short-term memory; ability to calculate; and spatial ability.

Mr. Smith noted that in August 2012, Mr. Sary scored 28/30 on the MMSE. Asked about the November 2012 results, Prof. Campbell responded that in November, Mr. Sary scored 26/30. He elaborated that Mr. Sary had more difficulty than observed in August with respect to holding a pencil and exercising sufficient power over it when drawing pentagons and writing a sentence. But there were no problems in the fluency of his speech or use of language, the professor observed.

Prof. Campbell also confirmed that in November examination, Mr. Sary complained of numbness but could still move his limbs; the numbness was “peripheral, distal, not proxal.” He further noted that Mr. Sary had marked weakness, which the professor believed was due to a lack of exercise over a number of years. Mr. Smith asked the professor to explain the term “peripheral numbness.” Prof. Campbell said that it referred to damage to nerve endings, particularly where Mr. Sary complained of light touch. Was numbness or “pins and needles” the sensation discussed here? Mr. Smith asked. Prof. Campbell said that it was more like feeling something “through cotton wool.” While one could lose sensation entirely, Mr. Sary’s loss was a “subjective loss,” Prof. Campbell added.

In the MMSE, Mr. Smith asked next, was it necessary to confirm whether a reasoning ability and awareness is there? Prof. Campbell confirmed this was so. The doctors had considered whether Mr. Sary knew the test process, he explained, and they also discussed other issues, for example whether he remembered his family and whether he saw them often. The professor confirmed that it is a “combined assessment” testing short- and long-term memory and that they also relied on other people’s assessments, with none of the treating doctors reporting any difference in cognitive impairment.

Asked to elaborate on the discussion he had with Mr. Sary, Prof. Campbell said they discussed his current situation, his history, taking as accurate an account as possible of Mr. Sary’s sense of dizziness. As to family and background, this assessment was done at the end to ensure that it happened at a time when Mr. Sary had been concentrating for some time: “There was no impairment there,” the professor concluded.

Noting that questions had been asked about the qualifications of Prof. Fazel and Dr. Lina, Mr. Smith said that in the September 2012 report, [21] those doctors appeared to have applied the Strugar test recommended by courts and psychiatrists in assessing Mr. Sary’s ability to understand the trial process and fitness to stand trial. He asked Prof. Campbell to outline the seven criteria courts use to assess that fitness. Mr. Karnavas objected to the anchoring of Mr. Smith’s question to the September report. Mr. Smith responded that “for counsel to say that [Prof. Campbell] doesn’t have any expertise in this area is dumbfounding to say the least” as the report was written collaboratively by Profs. Campbell and Fazel and Dr. Lina.

Mr. Karnavas in turn responded that Mr. Smith had mischaracterized his objection. He elaborated that they were here to examine Prof. Campbell’s recent examination and he was unaware of Prof. Campbell’s “expertise in forensic psychiatry.” While no one was “calling into question” the September report, he asserted, the expert Mr. Karnavas had consulted had said that the examination undertaken “was inadequate” and Prof. Campbell was not in a position to comment on Prof. Fazel and Dr. Lina.

After conferring with her Trial Chamber colleagues for a few moments, Judge Cartwright advised that this line of examination was relevant and that it may, within time limits available, continue. The Chamber also noted that there had been no challenge to the September report and that it was therefore within the relevant material today.

Continuing, Mr. Smith asked his question again. Prof. Campbell obliged, advising that the criteria are the ability to:

·      Plead;
·      Understand the nature of the charges;
·      Understand the course of the proceedings and the functions of people involved in the proceedings;
·      Understand details of evidence;
·      Instruct counsel;
·      Understand consequence of proceedings; and
·      If necessary, testify.

He explained that the determination of Mr. Sary’s fitness to plead was outlined in the September report and had been carried out by Prof. Fazel and Dr. Lina. Prof. Campbell did not repeat these procedures as there was no observed change in Mr. Sary in these respects.

Were Mr. Sary’s answers and Prof. Campbell’s own assessment of Mr. Sary’s cognitive ability in September consistent with the findings of the September report? Mr. Smith queried. Prof. Campbell confirmed this was so.

Mr. Smith asked Prof. Campbell to outline what information the doctors recorded to satisfy themselves of the criteria overall. Prof. Campbell responded that this information included the understanding of the following issues:

·      Nature of the crimes of which he was accused;
·      Process by which he would be tried;
·      Consequences if he was found guilty;
·      Ability to instruct counsel of his own defense, and
·      Indicated methods by which he would do that.

Regarding the ability to plead specifically, Prof. Campbell advised that the doctors concluded that “Ieng Sary appeared to have the capacity to plead and stated that he believed that he was not guilty.” He continued:

[Mr. Sary] explained that “if I were the one who had knowledge and made the decisions, it’s a different story” but that he was “not involved with that.” He explained to me that to be guilty, “I have to know, I had to have been involved in decision making,” but he believed that there was “no evidence” to prove his guilt.

As to whether Mr. Sary understood the nature of the charges, Prof Campbell said that the doctors concluded that he did. He recounted:

[Mr. Sary] explained that he had been accused of “crimes against humanity,” which he understood included “evacuations of people forced to move out of the country, acts of omission that allowed people to starve to death; as leaders, we are accused of forced labor and not providing treatment to patients; and crimes against Buddhism, the monks, the Catholics, prohibition of religious practice including demolition of monasteries and pagodas.”

In terms of understanding the court proceedings, Prof. Campbell stated that Mr. Sary “understood the role of the judge” and would ask his lawyer to challenge anything a witness stated “which he believed was not true.”

Mr. Smith also noted that in paragraph 35 of the September report, the doctors had stated that they had taken the criterion of “details of the evidence” as including “ability to point out statements to which he disagrees and the ability to inform counsel of his version of events.” The doctors then observed that “Ieng Sary appeared to have some capacity; he brought forward consistent defenses when we discussed the charges, and appeared to have a good memory of the Khmer Rouge period and decisions made by the regime.”

As to the issue of cooperating with counsel, instructing counsel, and assisting in one’s own defense, Prof. Campbell advised that in the report, the doctors had reported, “Ieng Sary was able to cooperate with lawyers. He named his foreign counsel and explained how he had helped him.” Prof. Campbell added that he asked Mr. Sary this week about his counsel and Mr. Sary had no difficulty remembering.

Mr. Sary was also able to understand that he would be “imprisoned for life, maybe 10 years or longer,” Prof. Campbell stated, adding that Mr. Sary also said that if he were not convicted, he “would be free and would go and live with his family.” Mr. Sary appeared to have a good understanding of court procedures, Prof. Campbell reported, noting that the September report advised that Mr. Sary expected all judges to ask questions and expected to be asked more questions from the prosecution, then the civil parties, then defense counsel, and maybe the counsel of the two co-accused, whom he named.

Mr. Smith asked whether it appeared to Prof. Campbell in September that it was the opinion of the three experts that Ieng Sary “did not suffer from any mental illness or cognitive impairment beyond what would be expected for someone of his age and background, and therefore have no recommendations to make in relation to mental state or cognitive function.” Prof. Campbell confirmed this was his opinion on September 3, 2012, and that nothing in the latest assessment would make him change that opinion.

The prosecutor then sought further clarity from Prof. Campbell as to whether he believed that Mr. Sary was capable of concentrating “at a certain level” for a whole day, with breaks if he wanted. The professor responded:

Yes, that is what I am saying. I mean, he is obviously more physically frail now, but in the right circumstances, that would not be an issue. The court sitting sessions are not long, and there are certainly adequate breaks in between. As I’ve said before, I mean, often people doze off in circumstances. That doesn’t mean they haven’t the ability to concentrate. It just means that if things aren’t very exciting for a time, we have that tendency to nod off.

Ultimately then, Mr. Smith asked, was it more a question of “willingness” rather than “ability” to participate and concentrate? Prof. Campbell agreed with this assessment and described how in his view, particularly interesting issues might pique Mr. Sary’s concentration, although when other, less interesting issues were discussed, his concentration might wane. However, the professor added, this was “something that might happen to any of us.”

Revisiting yet again the contested diagnosis of vertebrobasilar ischemia, Prof. Campbell was prompted by Mr. Smith to elaborate on his position. He explained:

None of his current symptoms can be attributed to vertebrobasilar insufficiency, and he has no physical signs on examination to indicate that he’s had small strokes, for example, because of insufficient blood supply from that system. What I am saying, though, is that he’s 87, he’s got a history of high blood pressure, and he also has a history of coronary artery disease that indicates that his coronary arteries are narrowed. Now, it is highly likely that he has some narrowing of the arteries supplying blood to the head. Currently, they’re not causing any symptoms, but anyone of 87 with coronary artery disease who has high blood pressure is at risk of a stroke in any of the territories: basilar territory or the anterior circulation. So, were he to have a stroke tomorrow, again it would not mean that his current symptoms are due to vertebrobasilar ischemia.

Indeed, Prof. Campbell also confirmed when prompted by Mr. Smith, many fit people of an advanced age were at risk of a stroke, although Mr. Sary “has a greater risk, of course, because of his high blood pressure and because of his heart disease,” but there was presently no evidence of a stroke.

The prosecutor noted that in the September report, the doctors reported of a “paradoxal septum with a conserved ejection fraction of 58 percent.” Asked to define this symptom and explain whether the figure was reasonable for someone of Mr. Sary’s age even without heart disease, Prof. Campbell responded that the ejection fraction is the proportion of blood in the left ventricle, that is, the main pumping chamber that pumps the blood out to the body. In Prof. Campbell’s view, 58 percent was  “a reasonable preservation” given that Mr. Sary had previously had heart attacks before and had sections of heart muscle that are not pumping fully.

Would it be fair to say, Mr. Smith continued, that although Mr. Sary had a history of heart problems, his heart condition was currently stable? The professor agreed that the condition was stable but qualified that it was “precarious.” Although it had not deteriorated while Prof. Campbell had seen Mr. Sary, Mr. Sary did have heart failure or an inability to pump adequately, although this was being controlled with medication.

The professor disagreed with Mr. Smith’s conclusion that he only differed as to the diagnosis of vertrbrobasilar ischemia of Mr. Sary’s treating doctors. Instead, the professor noted, he disagreed with the suggestion that impairment of Mr. Sary’s blood supply returning to the brain was due to the obstruction of Mr. Sary’s clavicle.[22] While the professor was unsure if this was a problem in interpretation, he was sure that this was not a plausible explanation — this “simply doesn’t happen.”

Mr. Smith shifted focus to Prof. Campbell’s expertise as a geriatrician, first asking whether it was fair to say that his expertise dealt with “more major critical functioning aspects of the body” because of the need to see the interdependency and interrelatedness of conditions. Prof. Campbell agreed, elaborating that people aged 87, the older age group, often had “co-morbidities.” Furthermore, whereas in younger people, a problem could be attributed to a single causative symptom, for older people, there was often a number of contributing symptoms.

As to whether any of Mr. Sary’s treating physicians were geriatricians, Prof. Campbell said he did not think this was the case and was uncertain whether there were geriatricians in Cambodia at all “given the age structure of the population.”

Time Allocation Determination Prompts Nuon Chea Defense Team’s Attempt to Speak

At this juncture, Mr. Smith asked the president that the OCP and Lead Co-Lawyers for the civil parties be permitted to finish in 20 minutes and then if parties did have final submissions, these should be made on another date. The Trial Chamber judges conferred briefly, and the president responded that this arrangement could be respected but that Mr. Smith should be “straight to the point” to enable the Court to finish on time.

The president noted that International Co-Counsel for Nuon Chea Andrew Ianuzzi was on his feet but was “just an observer.” Nevertheless, the president seemed to permit Mr. Ianuzzi to speak. Mr. Ianuzzi said that he had heard that the defense teams, and indeed all parties, would be given an opportunity to speak today.

President Nonn responded that “perhaps that was a misunderstanding,” as parties had been advised on Tuesday that only counsel for Mr. Sary would be permitted to participate in the proceedings while other parties could observe the proceedings only. He then invited Mr. Ianuzzi to “be seated.” Mr. Ianuzzi sought to “just clarify,” but the president interrupted and told Mr. Ianuzzi to sit. Mr. Ianuzzi persisted nonetheless, seeking to put only “one question” to Prof. Campbell, at which point the president advised the defense counsel in a distinctly loud tone, and repeatedly, that he was not allowed to speak.

Continued Prosecutorial Questions Regarding Adjustments to Detention Facility Conditions

Mr. Smith resumed his examination with two final questions. Mr. Smith asked Prof. Campbell whether, within Mr. Sary’s three main complaints – shortness of breath, back pain, and dizziness and unsteadiness – one of the most immediate concerns was that Mr. Sary “might fall over and … could break a bone … and have other complications … [that] could be extremely detrimental to his health.” Prof. Campbell agreed that this was a “very real risk” but noted that Mr. Sary was very aware of this and therefore asked for assistance when he needed it.

Finally, Mr. Smith asked, was the exercise program Prof. Campbell recommended for Mr. Sary “fairly essential to his ongoing health” and without starting such program, his condition might “likely worsen”? Prof. Campbell agreed, noting that Mr. Sary now had sarcopenia, or muscle loss, that heightened his susceptibility to falls and fractures and “very much” compromised his body’s ability to fight illness. Participation in such an exercise program might improve this “a wee bit,” the professor concluded. However, Prof. Campbell’s impression was that it would be “unlikely” that Mr. Sary would be willing to participate in such a program, in light of his complaints of his back pain when moved. Prof. Campbell agreed that this program required someone with expertise as the program had to be specifically designed to suit Mr. Sary’s capacity and to give Mr. Sary the “confidence and know-how” to begin.

Taking over from his colleague, National Senior Assistant Co-Prosecutor Chan Dararasmey directed Prof. Campbell to the issue of the quality and level of care to be administered to Mr. Sary in the ECCC’s detention facility. He first noted that Prof. Campbell had recommended that Mr. Sary be discharged from the Khmer Soviet Friendship hospital and returned to the detention facility[23] and inquired what care was necessary. The professor replied:

I think his condition is stable at present. … There have been no changes to his drugs, medication, over the last two to three weeks, so it’s not as though his medical condition is being closely monitored with a view to changing therapy. The main issue at present is his physical dependency. That is being managed by assistance to help him with his standing. There is no reason for a person to be in hospital for that to occur.

Regarding whether there was a need to change the current system of care with respect to Mr. Sary at the detention facility, Prof. Campbell advised that Mr. Sary had doctors at the detention center monitoring his progress and could call on additional expertise as necessary. However, the main change was “increased physical dependency.”

Mr. Dararasmey inquired as to what other services needed to be offered. Prof. Campbell did not consider “additional medical support” necessary, as there were no recent emergencies with respect to Mr. Sary’s health. Such emergencies could be dealt with at the detention center, Prof. Campbell stated, though he was “not sure what emergencies they were actually referring to.”

As to the appropriate level of comfort afforded by Mr. Sary’s bed, Prof. Campbell responded that Mr. Sary’s hospital bed was similar to his holding cell bed. He added that it could be tested whether Mr. Sary was more comfortable in a bed where the head could be raised; if so, this might be an alternative that should be considered.

Speaking as to the adequacy of the food provided to Mr. Sary at the detention facility, Prof. Campbell noted that Mr. Sary’s family brought in additional food and that there were also dietary supplements that Mr. Sary could potentially try and use if he found them to be palatable.

Regarding recommended equipment to improve Mr. Sary’s physical condition, Prof. Campbell said that this would depend on the physiotherapist’s program. It need not be sophisticated; the main issue would be “the strength in his legs, and ankle cuff weights would be adequate to build up proximal leg strength.” As he had to maintain these exercises when the physiotherapist was not present, the exercises should be simple so that Mr. Sary could carry them out in such independent situations, the professor recommended.

Mr. Dararasmey asked whether there could be any additional examination conducted to determine how to improve Mr. Sary’s health condition. “I think that there is very little scope for improvement in his heart condition. … If they need additional advice, there is the cardiologist that they can call upon for that,” Prof. Campbell responded.

As to whether Prof. Campbell was satisfied that the current medical services Ieng Sary received at the detention facility was the same as that provided at the Khmer Soviet Friendship Hospital, Prof. Campbell indicated that it was a “different level of service,” noting that Mr. Sary did not have “daily access to his cardiologist or neurologist. But with Mr. Sary’s stable condition, the professor considered this unnecessary anyway.

Finally, Mr. Dararasmey asked whether Prof. Campbell believed that the current service provision at the detention facility was adequate for Mr. Sary to remain at that facility rather than be readmitted to hospital. Prof. Campbell agreed this was so but added that Mr. Sary would need “additional personal support … at the level of nursing or personal care.”

Ieng Sary Ordered to Remain in ECCC Detention Facility Pending Hearing on November 12

At this juncture, both National Co-Lawyer for the civil parties Chet Vanly and International Co-Lawyer for the civil parties Pascal Auboin advised that they had no questions for Prof. Campbell and felt “fully confident” about his report.

The president advised that the time was “too little” to permit parties to give their observations, so a follow-up hearing would be held in the morning on Monday, November 12, 2012, after which the Chamber would return to regular witness testimony for Case 002. He added that Mr. Sary would be ordered to be sent to the detention facility and that he should be brought back on November 12 to observe the hearings from his holding cell. However, prior to so ordering, the president first sought Prof. Campbell’s opinion as to appropriate arrangements given there would not be a hearing until Monday.

Prof. Campbell said that he did not feel there would be any problem, as indicated in his report, returning Mr. Sary to the detention facility, provided that Mr. Sary was provided additional necessary support, “for example, when moving from bed to chair … so that he does not have a fall and a fracture.”

After the Trial Chamber judges conferred for a few minutes, Judge Cartwright advised, on behalf of the bench:

The Trial Chamber notes that it is appropriate to make an interim determination concerning where Ieng Sary will reside pending the delivery of any decision on Ieng Sary’s current health status. The Chamber has noted Prof. Campbell’s opinion that Ieng Sary does not currently require hospitalization. The Trial Chamber therefore decides that Ieng Sary is to return to the detention center where he is to continue receiving full medical treatment as before and as discussed during today’s hearing. The Trial Chamber also directs the detention center to provide additional personal assistance to ensure Ieng Sary’s physical safety and to enable him to attend to his more personal requirements, such as toileting.

The Trial Chamber therefore orders that the accused Ieng Sary be returned to the detention facility. It notes that the accused has waived his right to be present for the testimony of those witnesses who have been summoned to testify for the remainder of November 2012. Therefore, the Chamber does not require his presence in the holding cells during those hearings.

In addition, Judge Cartwright advised, in relation to both its ultimate determination as to Mr. Sary’s health status and to the issue that Mr. Ianuzzi sought to raise earlier, that:

Any decision that the Chamber determines concerning Ieng Sary’s health status will follow in due course, and an order requiring his attendance in the holding cell will also be given. The Trial Chamber intends to give the parties an opportunity to make oral submissions on Monday, November 12, before we begin the hearing of witnesses. We have not yet determined how long for each of the parties.

The bench conferred for a final time to determine an appropriate allocation of time for parties to speak. The president then noted that the hearing on Mr. Campbell’s report was now concluded, and that his report and testimony would be used as a basis for the bench’s consideration and determination on the health status of Mr. Sary and whether he was fit to stand trial.

The president adjourned the hearing for the day, noting that hearings would resume on Monday, November 12, 2012, at 9 a.m. On that day, the Chamber will hear parties’ observations on the report and Prof. Campbell’s opinion. The Ieng Sary defense team will have 20 minutes, OCP 15 minutes and the civil parties five minutes. Mr. Sary will also be offered five minutes to reply. Following these statements, the Chamber will hear testimony from TCW 507.

Mr. Karnavas interjected at this moment in order to thank Prof. Campbell for his “rather spirited” testimony. Prof. Campbell, in turn, closed the long and sometimes tense day on an amusing note, advising that he had worn his “computer cufflinks” given to him by his daughter that were inscribed with “Ctrl” (for control) on one cufflink and “Esc” (for escape) on the other that he could have pressed if things got too tough. Fortunately, he concluded, this was not the case today.