WITNESS INTERVIEWS ARE CONTESTED AND A WESTERN PRISONER’S FATE IS REVEALED

August 5, 2009

By Karlia Lykourgou, LLB Law Student 2010, University of Leeds, Santa Clara
Summer Programme, Legal Associate for the Documentation Centre of Cambodia

The Trial Chamber for the prosecution of Kaing Guek Eav (alias Duch) was
extremely busy today as a new witness, “Chheam Soeur,” delivered significant
testimony alleging that a western prisoner was burned alive at S-21. The
Trial Chamber also deliberated further on the appropriateness of introducing
witness interviews conducted by the Office of Co- Investigating Judges
(OCIJ) instead of having witnesses physically present for their testimony in
the courtroom.

The Fate of Western Detainees at S-21

The morning session began with questioning from the judges, largely led by
Judge Ya Sokhan. Although he has not been the most loquacious of judges on
the bench to date, his questions were concise and relevant when determining
the witness’ background and duties at S-21.

Chheam Soeur was originally forced to join the Khmer Rouge and fight Lon Nol’s
government as a child soldier. After 1975 he was taught military techniques
in order to fight the Vietnamese. He was later assigned to guard the
perimeter of S-21 and was unable to say how long he worked there. He said
that by the time the Vietnamese invaded in 1979, he was planting rice at Pre
Sar.

In the course of his time guarding S-21, the witness described having seen a
Westerner burned alive. According to Chheam Soeur, he once saw a white man
with brown hair brought into the grounds of S-21 by the guards, made to sit
down, and then car tires were placed on top of him and set alight. The
Chamber later clarified that Chheam Soeur believed the prisoner to have been
burned alive.

The details surrounding this incident were somewhat difficult to obtain as
the judges, the civil parties, and the Defense attempted to ascertain at
what time this incident occurred and the surrounding circumstances. There
were some translation issues which contributed to the difficulty in
understanding the witness. It was evident that he was not comfortable in
front of the Chamber.

Chheam Soeur frowned constantly and directed his eyes to the ground while
giving mostly short answers. He unexpectedly responded to a Defense question
saying, “I don’t want to talk anymore.” This spurred President Nil Nonn to
try and ascertain the source of the victim’s discomfort. He asked if Chheam
Soeur was still afraid of S-21 or Duch, to which the witness replied in the
negative. Finally the President asked if the witness was frightened of the
judges, to which Chheam Soeur paused and replied, “Yes, a little!”

Duch was given the opportunity to respond to the testimony of Chheam Soeur
and stated that he had been looking forward to it. Duch suggested that the
witness was mistaken in his testimony because although he admitted ordering
that the western prisoners be killed and their bodies burned, he did not
order that they should be burned alive. “No one would have dared disobey.”
Duch’s perspective added an interesting angle to Chheam Soeur’ earlier
assertion that he did not hear screaming and he did not stay long to watch
the fire, but returned after his shift to see parts of the burned body.

Victims Unit Press Meeting

During the lunch recess, Helen Jarvis, Head of the Victims Unit, held her
first press meeting since her appointment, and was joined by the Unit’s
Outreach Co-ordinator. The two outlined the recent developments of the
Victims Unit and their plans for the coming months, describing them as
“ambitious.” They stated that they hoped to work in partnership with other
departments wherever possible and also pledged to continue keeping the civil
parties involved in court proceedings and to provide greater contact between
civil parties and their legal representatives. They also mentioned plans to
create forums to allow victims and civil parties to express their views and
complaints regarding the trial proceedings.

Despite the extensive list of plans and reforms that the Victims Unit
outlined in the meeting, it was the controversy regarding Helen Jarvis’
appointment that raised the first questions. Ms Jarvis appeared visibly
irritated and refused to answer, stating that this meeting was “about the
Victims Unit.”

Co-Defense Council Makes A Stand Over Witness Transcripts

The Trial Chamber continued with its new policy of reading out witness
interview transcripts as a means of introducing the information into
evidence without the need for witness questioning. The system adopted
yesterday of providing the parties the opportunity to assert their support
or object to the testimony once the Graffier has read it orally ran into
difficulty immediately.

Upon being asked for the Defense’s support or objection to the witness
testimony Co- Defense Counsel François Roux launched into a tirade against
the court’s wasting of time and the failure of the recent witness testimony
to contribute any new information to the case. He drew attention to the fact
that Duch has admitted his guilt and that, “If this was a common law system,
we would have finished,” also noting that if the trial were following a
civil system, it also would have been completed by now.

In light of this, Mr Roux referred to Internal Rule 85 which prohibits
“proceedings that unnecessarily delay the trial and are not conducive to
ascertaining the truth.” Forced to respond to the witness transcript at
hand, Mr. Roux registered his constant objection to the testimony and other
testimony to follow on the grounds that it failed to introduce new evidence
and perpetuated the trial beyond the bounds of necessity.

The Prosecution and the civil parties were both in disagreement with the
Defense on this issue. The Prosecution stated that the issues of witness
selection and trial management had already been addressed in numerous trial
management meetings and were therefore inappropriate for continued
discussion.

As a compromise, Deputy Co- Prosecutor Anees Ahmed suggested that a summary
be prepared of each witness testimony rather than presentation of the full
transcript, which the Defense accepted. However, this procedure was
acceptable only in relation to new evidence that the Prosecution sought to
admit.

The Chamber adjourned for a break to address the matter but came back with
no decisive course of action. Instead, the presentation of witness
transcripts continued as before and the Defense took their second
opportunity to address the court to express their dissatisfaction with the
whole affair. The Defense criticized the inconsistency of the different
witness transcripts on certain issues and asked the OCIJ “to tell us which
is the truth.”

This is certainly not the last tussle the court will experience over witness
interview transcripts.