THE AUTHORITY OF THE CO-INVESTIGATING JUDGES TO CALL FOR WITNESS TESTIMONY

October 13, 2009

By
Professor David Scheffer, Director of the Center for International Human
Rights,Northwestern University School of Law
and
Michael Saliba, J.D. (Northwestern Law ’09), Consultant to the Center for
International Human Rights,Northwestern University School of Law

On October 7, 2009, the ECCC publicly released several letters issued by the
Co-Investigating Judge Marcel Lemonde that were sent to six high ranking
government officials summonsing them to the court to provide their testimony
as witnesses in Case 002. Early indications suggest that the government is
opposed to the requests from the Co-Investigating Judge. According to
government spokesperson Khieu Kanharith, the government’s position is that
only officials who volunteer are obliged to appear before the court,
regardless of whether or not they are called as witnesses.1 He continued to
say that foreign officials involved in the court could “pack their clothes
and return home” if they were not satisfied with the decision.2 Furthermore,
the Prime Minister recently argued that the government officials should not
testify because they were involved in establishing the tribunal and
therefore their testimony as “plaintiffs” could prejudice the court.3

It is imperative at this stage that there be a clear understanding by all
concerned as to the law being applied by the ECCC and why government
witnesses could be of interest to the Co-Investigating Judges as neither
plaintiffs nor defendants but as witnesses who might assist with
ascertaining the truth while evidence is being collected against the four
suspects being investigated in Case 002.

ECCC Statutory Authority to Hear Witness Testimony

The Agreement between the United Nations and the Royal Government of
Cambodia on the Establishment of the ECCC specifies that procedure shall be
in accordance with Cambodian law.4 Guidance from international procedural
law can be sought when Cambodian law is inconsistent with international
standards or when there is uncertainty regarding the interpretation of a
relevant procedural rule under Cambodian law.5 The 2004 Law on the
Establishment of the Extraordinary Chambers grants the Co-Investigating
Judges the power to hear witnesses in accordance with existing procedures in
force.6 Furthermore, the ECCC’s constitutional documents provide that the
Co-Investigating Judges, in discharging their duties (such as hearing
witness testimony), may seek assistance from the Royal Government of
Cambodia, in which case such assistance must be given.7

The Pre-Trial Chamber determined that it is the Internal Rules (IR), rather
than the Cambodian Criminal Procedure Code (CPC), that form the
authoritative source of procedural law at the ECCC.8 The Pre-Trial Chamber
held that the Internal Rules form a self-contained regime of procedural law
which is required in the case of the ECCC because the tribunal’s focus
differs substantially from the normal operation of Cambodian criminal
courts.9 However, it is noteworthy that both the Internal Rules as well as
the CPC are largely consistent on this issue and both grant broad authority
to Co-Investigating Judges to call witnesses to testify before them in the
course of their investigation.

The Internal Rules provide that the Co-Investigating Judges can take
statements from any person whose testimony they consider will be “conducive
to ascertaining the truth.”10 Any person summoned as a witness must appear
before the Co-Investigating Judges.11 In case of refusal to appear, the
Co-Investigating Judges may issue an order requesting the Judicial Police to
compel the witness to appear.12 Furthermore, a refusal to testify, without
just excuse, will be considered to be an interference with the
administration of justice.13 In such cases, the Co-Investigating Judges may
conduct further investigations to ascertain whether there are sufficient
grounds for instigating proceedings or they may refer the matter to the
appropriate authorities of the Kingdom of Cambodia or the United Nations.14
Sanctions imposed for interfering with the administration of justice are
determined by Cambodian law.15

Even though the Internal Rules take primacy over the Cambodian Criminal
Procedure Code, it is important to note that the two are largely consistent
on this issue. Specifically, an investigating judge may question any person
whose response is deemed useful in the revelation of the truth.16 Any person
summonsed as a witness must appear before the investigating judge.17 If that
person refuses to appear, then the investigating judge may ask the public
force to force the witness to appear, and such public force must act
according to the instructions of the investigating judge.18 Any failure to
appear before the court or to provide information as a witness shall be
punished according to the law.19 Penalties for refusal to testify will
likely be prescribed in the new Cambodian Penal Code whose draft articles
were approved by the National Assembly on October 12. The Penal Code that
was adopted in 1992 by the United Nations Transitional Authority in Cambodia
subjected those who failed to appear before the court to a fine.20

ECCC Standard for Hearing Witness Testimony

The Internal Rules statutorily grant the Co-Investigating Judges the power
to receive witness testimony under a very broad standard of “conducive to
ascertaining the truth.” Other international criminal tribunals have held
that even if a witness is able to give relevant and admissible evidence, a
subpoena should only be issued if it is likely to elicit evidence material
to an issue in the case which cannot be obtained without judicial
intervention or through other means.21 However, this “last resort”
requirement and standard for identifying, with heightened specificity, the
content of a witness testimony is borne out of the Rules of Procedure and
Evidence of those international tribunals which are notably different from
the Internal Rules of the ECCC with respect to compelling witness testimony.

The Rules of Procedure and Evidence for the International Criminal Tribunals
for the Former Yugoslavia and Rwanda and for the Special Court for Sierra
Leone provide, in relevant part, that a Judge or a Trial Chamber may issue
such orders, summonses, subpoenas, warrants and transfer orders as may be
necessary for the purposes of an investigation or for the preparation or
conduct of the trial.22 The “last resort” requirement, or the requirement
that the information sought cannot be obtained through other means, has been
introduced into the international jurisprudence because of the statutory
requirement that summonses be necessary for the purposes of an investigation
or the preparation or conduct of the trial.23 The ECCC statute is much more
liberal and gives the Co-Investigating Judges the authority to hear witness
testimony when it is conducive rather than necessary in ascertaining the
truth. Furthermore, the ECCC statute gives the Co-Investigating Judges more
flexibility in compelling witness testimony even when information sought has
not been specifically linked to a clearly identified issue in the
investigation or forthcoming trial.

Moreover, at the investigative stage, given that it is so early in the
process, there is even a greater imperative to grant the Co-Investigating
Judges great latitude in collecting all evidence that may elucidate the
facts surrounding their investigation. A broad reading of the power of the
Co-Investigating Judges to hear witness testimony would be consistent with
the International Covenant on Civil and Political Rights which is enshrined
in the ECCC’s constitution documents and states, in part, that the accused
has a right to obtain the attendance and examination of witnesses on his
behalf under the same conditions as witnesses against him.24

Exemptions from testifying

The court shall only issue a summons if the testimony of the witness is
conducive to ascertaining the truth. A testimony sought for other reasons,
such as for a political purpose to embarrass a public official, would amount
to an abuse of process and would be an improper exercise of the summons
power.25 However, once a witness has been properly summonsed, that witness
must testify unless he or she has a “just excuse.” Furthermore, the
obligation to appear as a witness when summonsed extends to government
officials.26

The only excuse that is provided for directly in the Internal Rules is the
universally recognized right against self-incrimination.27 Specifically, no
witness can be forced to make statements that might tend to incriminate him
or her.28 To be sure, the six government officials would be under an
obligation to testify only as witnesses and not as suspects. They may
refuse to answer any questions that would tend to incriminate them. Apart
from this right, international jurisprudence recognizes several other “just
causes” that the ECCC may draw upon in its determination that a witness who
has been summonsed may still be exempt from testifying.

For example, several decisions coming from international criminal tribunals
have recognized that witnesses who have been subpoenaed may be exempt from
testifying where their testimony may have a serious detrimental effect on
their mental or physical health. According to these decisions, the harmful
effect on the health of the witness is an overriding concern that weighs
against allowing the court to execute the subpoena.29 There is no public
information suggesting that the testimony of the six government officials in
this case would have a serious detrimental effect on their health.

Furthermore, many witnesses at the other international criminal tribunals
have refused to testify because they feared for their safety or reprisals
against their family. However, concerns for the safety of witnesses or
their relatives do not automatically override the duty to testify.30 In such
cases, the tribunals must address the security concerns of the witness and
implement protective measures such as providing for, among other measures,
in camera proceedings or testimony by video-conference.31 There is no public
information suggesting at this point that the testimony of the six
government officials in this case would put them or their families at risk.

In limited circumstances international criminal tribunals have found that
certain public policy concerns serve as significant factors against
compelling witness testimony. For example, war correspondents enjoy a
heightened level of protection from testifying because compelling them to
testify would adversely affect their ability to carry out their work which
is deemed an important public interest.32 While that particular public
policy concern is not germane to this case, the ECCC has the authority to
assess its own public policy concerns. However, the public policy concern
must be serious, and it is for the court, and not the witness, to decide
whether the public policy concern should serve to exempt the witness from
testifying.

Conclusion

Despite the objections raised from key government officials, the ECCC may
properly exercise its authority to summon witnesses so long as the testimony
sought is deemed to be conducive in ascertaining the truth. When properly
summonsed, witnesses, including government officials, have an obligation to
appear before the court unless they can show just cause. The six government
officials have yet to specify whether they will comply with the letters from
the Co-Investigating Judge and the basis of their decisions should they
decide not to comply. Therefore, until such time as they can specify and
demonstrate just cause, they have an obligation to appear before the
Co-Investigating Judges to provide their testimony as witnesses. Moreover,
if they fail to appear without just cause, there is the possibility that
they may be subject to penalty under Cambodian law. It remains instructive
that international criminal tribunals outside Cambodia have held several
witnesses in contempt for refusing to testify and have issued sentences
including prison terms.33

***


1 Govt testimony could bias KRT: PM, Phnom Penh Post, 09 October 2009
2 Govt testimony could bias KRT: PM, Phnom Penh Post, 09 October 2009
3 Just because a party may be an interested party does not mean that they
cannot or should not testify. For example, it is common practice for
victims as civil parties to testify against an accused. The six government
officials would still be under an obligation to tell the truth pursuant to
an oath they must take, and the Judges can assess their credibility or
perceived bias to determine the probative value of their testimony.
4 Agreement between the UN and the RGC on the Establishment of the ECCC,
Article 12
5 Agreement between the UN and the RGC on the Establishment of the ECCC,
Article 12
6 Law on the Establishment of the ECCC, Article 23 new
7 Agreement between the UN and the RGC on the Establishment of the ECCC,
Article 12; Law on the Establishment of the ECCC, Article 23 new
8 Nuon Chea, PTC, Decision on Appeal Against Order Refusing Request For
Annulment, 26 August 2008, Para 14; Khieu Samphan, PTC, Decision on
Supplemental Application for Release, 24 Dec 2008, Para 16
9 Nuon Chea, PTC, Decision on Appeal Against Order Refusing Request For
Annulment, 26 August 2008, Para 14; Khieu Samphan, PTC, Decision on
Supplemental Application for Release, 24 Dec 2008, Para 16
10 ECCC Internal Rules; Rule 60, Rule 55
11 ECCC Internal Rules; Rule 60
12 ECCC Internal Rules; Rule 60
13 ECCC Internal Rules; Rule 35
14 ECCC Internal Rules; Rule 35
15 ECCC Internal Rules; Rule 35
16 Cambodian Criminal Procedure Code, Article 153
17 Cambodian Criminal Procedure Code, Article 153
18 Cambodian Criminal Procedure Code, Article 153, Article 239
19 Cambodian Criminal Procedure Code, Article 477
20 UNTAC Law of 1992, Article 24
21 Prosecutor v. Norman, Decision on Interlocutory Appeals Against the Trial
Chamber Decision Refusing to Subpoena the President of Sierra Leone, 11
September 2006, Para 9, 20 ; Prosecutor v. Halilovic, Decision on the
Issuance of Subpoenas, 21 June 2004, Para 6, 7
22 ICTY Rules of Procedure and Evidence, Rule 54; ICTR Rules of Procedure
and Evidence, Rule 54; SCSL Rules of Procedure and Evidence, Rule 54
23 Prosecutor v. Halilovic, Decision on the Issuance of Subpoenas, 21 June
2004, Para 7
24 Agreement between the UN and the RGC on the Establishment of the ECCC,
Article 13; Law on the Establishment of the ECCC, Article 33 new;
International Covenant on Civil and Political Rights, Article 14(e)
25 Prosecutor v. Milosevic, Decision on Assigned Counsel Application for
Interview of Tony Blair and Gerhard Schroder, 09 December 2005
26 Prosecutor v. Milosevic, Decision on Assigned Counsel Application for
Interview of Tony Blair and Gerhard Schroder, 09 December 2005, Para 28;
Prosecutor v. Krstic, Decision on Application for Subpoenas, 1 July 2003;
Prosecutor v. Bagasora, Decision on Request for a Subpoena for Major Jacques
Biot, 14 July 2006, Para 4
27 ECCC Internal Rules, Rule 28
28 ECCC Internal Rules, Rule 28
29 Prosecutor v. Bagosora, Decision on Prosecutor’s Motion to Allow Witness
DBO to Testify by Means of Deposition, 25 August 2004, Para 9; Prosecutor v.
Haradinaj, Decision on Prosecution’s Motion to Have Witness 25 Subpoenaed to
Testify, 30 October 2007, Para 2
30 Judgment Summary for Dragan Jokic, 27 March 2009
31 ICTR, Decision on Prosecution Request for Testimony of Witness BT via
Video Link, 8 October 2004, Para 1, 13
32 Prosecutor v. Brdjanin, Decision on Interlocutory Appeal, 11 December
2002
33 Judgment Summary for Dragan Jokic, 27 March 2009; Third witness in Kosovo
trial faces charges at UN tribunal over refusal to testify, UN News Center,
14 November 2007