WHEN IT COMES TO WITNESS PROTECTION, ARE ALL WITNESSES CREATED EQUAL?

July 13, 2009

By Laura MacDonald, Member of the New York Bar and Consultant to the Center
for International Human Rights, Northwestern University School of Law

This morning, the Trial Chamber heard the remaining testimony of civil party
Nam Mon, an alleged survivor of two secret detention facilities run by Kaing
Guek Eav (alias Duch). Nam testified that she saw Duch beat two of her
uncles to death. This is the first evidence presented to the Chamber that
Duch killed someone with his own hands.

In the afternoon, the Chamber was scheduled to hear the testimony of witness
Mam Nai, one of Duch’s former subordinates. However, a timely objection from
the defense regarding the witness’s right against self-incrimination stalled
the proceedings in order to allow Mam time to seek legal advice regarding
this right. Complicating matters and shocking observers, Mam stated that
while he would like legal representation, he cannot afford it and therefore
does not have any. Mam was allegedly responsible for the interrogation of
high-ranking Communist Party of Kampuchea (CPK) cadre detained at Tuol Sleng
prison (S-21).

Alleged S-21 Medic Claims Duch Killed Her Two Uncles with a Metal Bar

On Thursday, President Nil Nonn questioned civil party Nam Mon for a few
hours before adjourning early because she started sobbing uncontrollably
after the mug shot of her deceased father was displayed. Today, the judges
continued their questioning but, this time, a representative from the
Transcultural Psychosocial Organization (TPO), an NGO providing mental
health services, was seated beside Nam to support her. The female TPO
representative often had one hand on Nam’s arm or back. If words were
exchanged between the women during the proceedings, they were inaudible. The
President started off the morning with a calm tone asking Nam, “How are you
this morning?” The President’s demeanor has changed quite dramatically. Two
weeks ago, civil parties were told uncaringly to console themselves and
carry on because time was of the essence. Now, the President thanks victims
for their testimony, acknowledges their difficult task, and offers them
breaks when they appear necessary.

After being evacuated from Phnom Penh in April 1975, Nam’s family returned
to the city. Her parents sent her to basic medical training during which she
learned how to treat wounds and administer medicine. Although Nam is
illiterate, she said she memorized instructions and distinguished aspirin
from vitamins, for example, based on the labels. In mid-1975, at the age of
15, she started working as a medic with two other women at S-21. On
Thursday, she claimed the three female medics were equals, but today she
said one was the chief, receiving medicine from a local hospital and
instructing Nam to use the medicine to keep certain prisoners alive for
interrogation. Nam treated men and women located in one of the four large
buildings on the S-21 complex. Eventually, the modern medicines left over
from the former regime ran out and she had to administer traditional
medicines. Duch has acknowledged that medics drew blood from S-21 prisoners
for the use of Khmer Rouge soldiers and that at least one prisoner was used
for an anatomy experiment; Nam was not aware of either of these practices.

During her time as a medic, Nam’s father and three uncles worked for the
Khmer Rouge. At least two of her uncles were quite senior in the military.
One even hosted parties at his home where Nam saw Duch on at least two
occasions. Two of Nam’s older brothers worked as guards at S-21. Nam
attended a family meeting in which an escape plan was discussed. Shortly
thereafter, one uncle escaped to the United States; he is still alive today.
About two weeks after his escape, Nam’s two other uncles and her father were
arrested.

After his arrest sometime in 1977, Nam’s father was detained in the building
where she treated prisoners. She had one conversation with him in which he
warned her not to recognize or acknowledge him as her father. She understood
that this was for her protection and never visited him again. About six
months later, Nam was told by another medic that her oldest brother had
carried out an order to kill their father. Days later, that brother was
killed because he had hesitated to shoot his father and was consequently
labeled as a traitor. Nam’s other brother serving as a guard as well as her
mother and little brother were arrested shortly thereafter. Nam never saw
them again.

In response to a question from the prosecution, Nam testified that she
witnessed Duch beat both of her uncles to death with a metal bar about a
half a meter long. She watched from a barred window on the third floor while
they were beaten, separately, by Duch and two armed men about five meters
away from her building. Oddly, earlier today, she was asked by the President
if she saw anyone beaten or killed at S-21 and she responded that she just
saw wounds and never saw anyone beaten or killed. Nam also testified that
she saw Duch at S-21 at least once every couple of weeks. She knew him as
“Brother East” but was not aware of his role at the time.

Shortly after her uncles were killed, Nam was arrested as well and detained
in an individual cell at S-21 for about three months. During interrogation,
she denied being the daughter of a traitor and maintained she was the
daughter of her godparents. For unknown reasons, she was sent to Prey Sar
re-education camp (S-24), also run by Duch.

Nam said S-24 was not a re-education camp, but rather “a place where
children and women were killed.” At S-24, Nam was put to work digging large
graves for children. She was not aware of the tasks that other detainees
were assigned to do. When asked on Thursday if she knew how children died at
S-24, she said she did not know, but had heard children crying. Today, she
recalled seeing dead bodies of children regularly and witnessing a one or
two year old thrown up in the air only to be caught on a bayonet. She was
detained at S-24 for about three months before being transferred to another
prison, not run by Duch, where she remained until the Vietnamese seized
Phnom Penh.

The proceedings today served as a reminder that very little, if anything,
comes easy in this trial. When dealing with nervous, traumatized witnesses
testifying to their experiences thirty-plus years ago, it is often difficult
to establish even seemingly simple facts. On Thursday, I confidently
reported the following: “48 year old civil party Nam Mon testified today on
her own behalf and on behalf of her four brothers, two parents, and two
uncles who allegedly perished at S-21.” Today, even these basic details were
challenged by the judges, the defense, and Duch himself.

The President held a copy of Nam’s official, government-issued
identification card in his hand, which stated she was almost ten years
younger than she claims to be. Nam said her aunt told the authorities the
wrong age without consulting her. In her civil party application, Nam had
referred to at least one sibling as a cousin. One photograph that was
labeled “my sibling” in English by Nam’s lawyer was apparently her father.
Nam referred to her “god brother” as simply “my brother” a few times,
creating confusion. Nam’s justification for misnaming or failing to name
family members in her civil party application is that she was scared at the
time. While it is understandable for witnesses and civil parties to be
scared and fear retaliation, the specific justifications for individual
decisions, for example referring to her father as a brother in one instance,
were not explored. In any event, the judges and parties probably spent 40
minutes clarifying how old Nam was, how many family members she had, and
what their names and aliases were – and after all that, these basic facts
were still not completely clear.

The standard procedure of the Chamber is to allow Duch to respond to civil
party testimony after the judges, prosecution, and civil party lawyers have
completed their questions, but before the defense has begun its examination.
At the same time, the Chamber also allows the civil party to put questions
to Duch through the President. Nam asked if Duch was going to deny the truth
and the facts she had revealed in her testimony.

In what is becoming a predictable response, Duch admitted that he is
“legally,” “emotionally,” and “personally” responsible for suffering across
Cambodia and recognized that Nam had suffered the loss of her entire family;
however, he did not accept her suffering occurred at S-21 and S-24. Duch
stated that her account did not comport with the realities of those
facilities, citing a number of examples. Duch noted that her father could
not have worked in “logistics” for S-21 because such a role did not exist.
Moreover, her father does not appear in the S-21 prisoner list. Further,
Duch maintains “there were no female medics” at S-21. Duch found it odd that
Nam knew two medics and her family members at S-21, but could not name any
other staff members. Duch says that he had no authority to transfer anyone
from S-24 to other prisons. And, critically, Duch pointed out that Nam had
not mentioned the move of S-21 from its original location to its current
location, which took place during the time she allegedly worked there. Duch
said there are no documents showing Nam worked as a medic at S-21: “there is
no evidence at all.”

Regarding the seven mug shots of Nam’s family members that were displayed,
Duch said he was not in a position to accept or deny the photographs because
there is insufficient documentary evidence to back them up. When asked by
Judge Cartwright if any of the people from the photographs looked familiar,
Duch said, “none of them.”

While the defense is usually brief, today Francois Roux and Kar Savuth used
their entire 40 minutes to point out myriad inconsistencies between (1) Nam’s
oral testimony on Thursday and today, (2) her oral testimony and her civil
party application, and (3) so-called reality and her testimony. For example,
the defense noted that S-21 was not established at its present location
until February 1976; whereas, Nam stated she began working at the present
S-21 location as a medic in mid-1975. Stating information for the first
time, Nam responded that in 1975 she treated Khmer Rouge military cadre who
were setting up the S-21 prison facility before it officially opened.

Kar Savuth examined the civil party loudly and aggressively, as always,
adding long observations appropriate for pleadings onto the end of his
questions. After an objection from Nam’s civil party lawyer asking the
Chamber to “calm him down” and make him “speak less aggressively,” the
Chamber effectively asked him to take it down a notch. A few questions
later, Kar Savuth added an inappropriate observation and the Chamber finally
stepped in. The President told him to rephrase his question so as to avoid
making his own presumptions. Hopefully, the Chamber will continue to
regulate his questioning.

Long-Awaited S-21 Interrogator Takes the Stand without Access to Legal
Counsel

Mam Nai, former S-21 interrogator for high-ranking CPK cadre, took the stand
this afternoon, but did not provide any substantive testimony. After Mam was
asked a few harmless, introductory questions by the President regarding his
name, age, occupation, and residence, international defense counsel Francois
Roux raised a timely objection. While witnesses, like Mam, are reminded by
the Chamber of their oath to tell the truth, their right to remain silent,
and their right against self-incrimination, Roux argued that since the
Chamber had yet to rule on the prosecution’s submission regarding the
application of Joint Criminal Enterprise (JCE) as a mode of liability in
this trial, Mam risked being prosecuted by the ECCC or a national court,
given that he was one of Duch’s subordinates allegedly involved in the joint
criminal enterprise. Roux said that unless the prosecution dismissed
immediately its motion for the application of JCE, Mam should be informed of
his rights and allowed leave to speak with his counsel. The Chamber
announced recently it will rule on the application of JCE at the same time
it rules on the merits of this case.

International co-prosecutor William Smith told the Chamber that, in
accordance with Internal Rule 28.4, the prosecution informed the
co-investigating judges during the investigation phase of this case that it
would not seek to prosecute Mam.

Roux pressed on, noting that the prosecution’s submission on JCE was made
after such representations were made to the co-investigating judges and,
further, those representations protecting Mam from prosecution at the ECCC
did not offer him protection from prosecution in a national court.

Noting those remarks, the prosecution made clear it had no objection to Mam
speaking with his counsel, and reiterated that whichever way the Chamber
rules on JCE, the prosecution would not seek to prosecute Mam before the
ECCC.

After the judges conversed among themselves a bit, the President asked Mam
if he in fact had counsel with him. Mam said he did not have a lawyer at
this time, but explained he had consulted with a lawyer during the
investigation phase of the case. The President asked if Mam felt he needed
counsel and Mam responded, “I want to have a lawyer but I cannot afford to
hire a lawyer.”

After another brief judges’ huddle, the President adjourned the proceedings
for the day. He noted that the Chamber had contacted the ECCC unit that can
provide a lawyer, but the attempt was “not successful.” The President said
since Mam had not consulted with a lawyer since the JCE submission was
filed, he should have the opportunity to do so before testifying.

The fact that Mam was allowed to reach the stand without a lawyer raises
some red flags. While some other witnesses have appeared without counsel,
they were victim witnesses who chose not to join as a civil party (Vann
Nath) or missed the application deadline to join as a civil party (Norng
Chan Phal) – they were not S-21 staff who allegedly participated in
interrogation, torture, and executions. This is a critical distinction.

Internal Rule 28 covers the “Right Against Self-Incrimination of Witnesses”
and allows for the co-investigating judges or the Chamber to give assurances
to a witness, when appropriate in light of consultation with the
prosecution, that statements “will not be used either directly or indirectly
against that person in any subsequent prosecution by the ECCC.” The Rule
does not mention that such statements are protected from subsequent
prosecution by national courts. The Rule allows for witness testimony in
camera after which the identity and statements of the witness can be kept
confidential. Under Rule 28.8, a witness himself can raise the need for in
camera proceedings in advance of his testimony.

While civil parties appear in trial upon the request of their lawyers,
witnesses are summoned by the Chamber to testify regarding certain facts.
Civil parties are not required to take an oath and are eligible to take part
in reparations; whereas, witnesses take an oath before appearing in the
courtroom. In a press conference last week, an ECCC spokesman stated that
one practical impact of this distinction is that civil party testimony is
not given the “same weight” as witness testimony. Although Mam is a witness
and not a civil party, he has a lot at stake in this trial and could perhaps
be motivated to give false or self-serving testimony. If it is in fact true
that witness testimony is given more weight, it seems the logical basis for
this distinction is challenged in the case of former cadre like Mam.

At a different ECCC press conference, Wendy Lobwein from the Witness and
Expert Support Unit (WESU) explained some of the many services the court
provides to witnesses, including getting them to the trial, preparing them
for the experience of testifying, assessing their need for protection, and
providing monetary allowances for their time. She mentioned the many fears
of perpetrator witnesses specifically, so I have no doubt their security and
mental health are considered. Legal protection, however, is a separate issue
that clearly requires greater focus. Under Rules 11 and 12, both the Defense
Support Section and Victims Unit maintain lists of lawyers qualified and
willing to defend or represent indigent persons.

While it appears a lot of thought has gone into protecting and preparing the
victim witnesses, one is left to wonder if the rights and interests of the
perpetrator witnesses have been overlooked. Roux and the Chamber took steps
to protect Mam today, but who has been looking after his interests all
along? If the ECCC does track down a lawyer tonight to advise Mam, will he
still be fully briefed and ready to testify tomorrow morning at 9 a.m.? As
much as I want to hear Mam’s testimony, given that the application of JCE
and the interaction of the ECCC and national courts are complicated issues,
I would feel more comfortable if he did not take the stand tomorrow morning.