Cambodia PM questions Khmer Rouge court summonses

PHNOM PENH — Cambodia's premier on Thursday questioned why a UN-backed Khmer Rouge war crimes court had summoned six top government and legislative officials as witnesses, describing the move as "strange". In a move opposed by Cambodia's administration, French investigating judge Marcel Lemonde has called the officials to testify in the court's second case against Khmer Rouge leaders for war crimes and crimes against humanity. Prime Minister Hun Sen said he found it "strange" that the six had been asked to testify as witnesses, as he considered them plaintiffs due to their roles in bringing the late 1970s Khmer Rouge regime to justice.

"Why do they call the plaintiffs to be witnesses? Because those people are known to have toppled (Khmer Rouge leader) Pol Pot and they are also the ones who approved the laws to try the Khmer Rouge," Hun Sen said. He made the comments in a speech marking 30 years since the national bank was rebuilt after the Khmer Rouge. The process has been hit by allegations that Hun Sen's administration has attempted to interfere in the tribunal to protect former regime members who are now in government.

Senate president Chea Sim, national assembly president Heng Samrin, foreign minister Hor Namhong, finance minister Keat Chhon and senators Sim Ka and Ouk Bunchhoeun were called last month to testify, the court revealed Wednesday. The tribunal's second case is expected to try detained former Khmer Rouge ideologue Nuon Chea, head of state Khieu Samphan, foreign minister Ieng Sary and his wife, minister of social affairs Ieng Thirith.

As the court has sought to investigate other suspects, Hun Sen has made fiery speeches warning further prosecutions could plunge Cambodia back into civil war. Such suggestions have been denied by critics. Final arguments in the court's first trial of prison chief Kaing Guek Eav, known by the alias Duch, are scheduled for late next month. Led by Pol Pot, who died in 1998, the Khmer Rouge emptied Cambodia's cities in a bid to forge a communist utopia between 1975-79, resulting in the deaths of up to two million people from starvation, overwork and torture.

Copyright © 2009 AFP. All rights reserved.

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The Scope of the Authority of the Extraordinary Chambers to Obtain the Testimony of High-Level Cambodian Government Officials and King Father Sihanouk



Anne Heindel



I. Introduction



The necessity and appropriateness of having the Retired King Norodom Sihanouk testify before the Extraordinary Chambers in the Courts of Cambodia (“ECCC” or “Extraordinary Chambers”) became publicly contentious in 2007 when a previously unknown US-based NGO requested that his immunity be lifted and he be investigated for his role during the Democratic Kampuchea regime.[1] The Court spokesperson was then quoted as saying that “the retired King could be called as a witness, ‘but whether he’s bound to show up is another question entirely’.”[2] In response, the Retired King invited UN staff to attend a televised three-hour chat at the Royal Palace . At the time, the King Father stated that the interview would “obviate any need for him to testify before the tribunal” and that if the UN did not accept, he would “‘not accept to see or speak to, nor correspond with the ECCC’s UN’.”[3] The UN, however, chose not to attend.[4]

Over a year later the Nuon Chea defense team reportedly asked the ECCC Co-Investigating Judges to seek the testimony of retired King Sihanouk, as well as Prime Minister Hun Sen, Senate President Chea Sim, and National Assembly President Heng Samrin.[5] The following July it was reported that the international Co-Investigating Judge, Marcel Lemonde, had sent a letter to King Father Sihanouk “possibly with the aim of seeking his testimony[,]” possibly at the urging of the defense.[6] There is no report of a similar letter being sent to the high-level government leaders the Nuon Chea team seeks to interview.



II. ECCC Authority to Issue Summons to Appear



As originally conceived, the ECCC was intended to apply Cambodian criminal procedural law and to draw on international procedures when necessary to fill in the gaps between domestic Cambodian law and international standards.[7] However, until the Criminal Procedure Code (CPC) was adopted in August 2007, Cambodia lacked a comprehensive code for the Extraordinary Chambers to consult. For that reason, the ECCC judges drafted their own Internal Rules and adopted them by judicial plenary in June 2007. The Pre-Trial Chamber (PTC) has said that, with the adoption of the Internal Rules, the CPC “should only be applied where a question arises which is not addressed by the Internal Rules.” Where there is “uncertainty regarding the interpretation or application” of these rules, “guidance may also be sought in procedural rules established at the international level.”[8]

The Internal Rules give the Co-Investigating Judges the authority to issue summons and “take statements from any person whom they consider conducive to ascertaining the truth[,]” subject only to the right against self-incrimination of witnesses.[9] Trial and Supreme Court Chambers have similar authority.[10] These bodies are not mandated to issue summons, but may do so at their discretion.[11]

Summonses are defined by the Internal Rules as “an order to any person to appear before the ECCC.”[12] Once summoned, witnesses must appear. “In the case of refusal to appear, the Co-Investigating Judges may issue an order requesting the Judicial Police to compel the witness to appear.”[13]

Both the Internal Rules and the CPC provide blanket authority to summon witnesses with no exception. Nevertheless, it is notable that the International Criminal Tribunal for the Former Yugoslavia (“ICTY”) has said with regard to subpoenas that they “should not be issued lightly, for they involve the use of coercive powers and may lead to the imposition of a criminal sanction.”[14] Therefore,

[w]hile a Trial Chamber should not hesitate to resort to this instrument where it is necessary to elicit information of importance to the case and to ensure that the defendant has sufficient means to collect information necessary for the presentation of an effective defence, it should guard against the subpoena becoming a mechanism used routinely as part of trial tactics.[15]

The Special Court for Sierra Leone (“SCSL”) has agreed that subpoenas should be used “sparingly.”[16] Indeed, a SCSL Trial Chamber judge has opined that a coercive measure “should not be used at all where its issuance will put the interests of peace, law and order and the stability of the Country and of its Institutions at peril or in jeopardy[.]”[17]

However, one SCSL Appeal Chamber judge has strongly disagreed with this approach.[18] Justice Robertson noted that the “nervousness” of international courts to use compulsory orders to obtain testimony may stem from the rigorous exclusion of tu quoque (“you did it too”) evidence at Nuremberg , the desire to prevent harassing and embarrassing verbal assaults on victorious political leaders, and early uncertainty about whether their orders would be respected by states.[19] In his view, international court’s compulsory powers “should be used whenever the use is necessary to achieve fair trial, no more and no less.”[20]

In determining whether or not it is appropriate to coerce testimony, international court judges have looked at whether a witness is protected by any procedural immunities and also the statutory requirements for issuance. These criteria are discussed below.



III. Do High-Level Cambodian Officials or the King Father Have Immunity from Testifying Before the ECCC?



Neither the Framework Agreement, the ECCC Law, nor the Internal Rules offers any privileges and immunities to anyone except court personnel and defense counsel. For that reason it is necessary to consider whether high-level Cambodian officials and the King Father have procedural immunity under either Cambodian or international law.

First, however, it is necessary to determine the legal characterization of the ECCC as either a national or an international court — or something in between — in order to determine the scope of the Court’s authority. As noted by Professor Sands in the context of the issuance of an arrest warrant to a head of state, lawfulness of process “depends on the Court’s powers and attributes and the legal basis upon which it was established.”[21] If the ECCC is a Cambodian court, it must adhere to Cambodian law. However, if it is an international court the ECCC is only obligated consider Cambodian law to the extent that it is consistent with customary international law.



A. Character of the ECCC As a Hybrid Court



Unlike the ICTY, the International Criminal Tribunal for Rwanda (“ICTR”), or the SCSL, the ECCC was not established by the United Nations or by an international agreement. Instead, the ECCC was established by a domestic Cambodian law pursuant to a 2003 agreement between the United Nations and the Government of Cambodia setting out the “legal basis and the principles and modalities for … [their] cooperation.” This Framework Agreement was approved by the Cambodian legislature and implemented by it through a 2004 law (the “ECCC Law”). According to the Framework Agreement, the ECCC has been created “with international assistance ... within the existing court structure of Cambodia for the prosecution of crimes committed during the period of Democratic Kampuchea.” Royal spokesperson Prince Sisowath Thomico has emphasized that the King Father has immunity from process under Cambodian law because “the ECCC is situated within the Cambodian legal framework and cannot leave this, save by renegotiating the terms with the United Nations.”[22]

Although the ECCC is formally part of the Cambodian court system, it also has some features of an international court. Cambodian Deputy Prime Minister Sok An has characterized it “a national court with international characteristics.” He has noted that it is “a mixed or hybrid tribunal — firmly located in the national courts but involving both national and international law; national and international judges, prosecutors, staff; and national and international financing.”[23] The ECCC’s Pre-Trial Chamber has said that the Court is “a special internationalized tribunal” because it is “an independent entity within the Cambodian court structure.”[24] Nevertheless, to date, no ECCC Chamber has clearly defined or directly ruled on the Court’s legal status.

Because of the uncertainty regarding the exact legal nature of the ECCC and just how “internationalized” it may be, the application of personal immunities under both Cambodian and international law are discussed below.

B. Immunities under Cambodian Law

1. Constitutional “Inviolability” of the King



The Cambodian Constitution provides, “The King of Cambodia shall reign but shall not govern. The King shall be the Head of State for Life. The King shall be inviolable.”[25] King Father Sihanouk retired in 2004 and his son King Sihamoni assumed the thrown. In October of that year the Cambodian National Assembly passed the “Law on the Titles and Privileges of the Former King and Queen of Cambodia ,” which, among other things, bestows on Sihanouk the title “Great Valorous King” or “Hero King.”[26]

Persons close to the Royal Family believe the provision of this title grants King Father Sihanouk the same immunities to which he was entitled under the Constitution while he was King.[27] For example, Ke Kim Se, the retired King’s former cabinet chief, has said that “calling the ‘king father of the nation’ to the court would be ‘violating the constitution and law of preparation of the royal title and royal privilege of His Majesty’.”[28] This impression is apparently shared by the Cambodian Government, which reportedly referred to this law and the Constitution when a US-based NGO suggested the King Father be stripped of immunity and investigated.[29] In contrast, the Asian Human Rights Commission has argued,



the Constitution of Cambodia, in its letter and spirit, confers inviolability including the immunity from prosecution upon the person of the reining monarch and not upon anybody else. No act of parliament can confer the same inviolability upon former King Sihanouk.[30]



Additionally unnamed “legal monitors” have been reported as opining “that it is, in fact, not against the constitution to call the former king … to the court, though it may be a sensitive risk.”[31]

If the King Father is entitled to constitutional protections equivalent those enjoyed by the reigning monarch, the question becomes whether his “inviolability” includes protection from providing court testimony. Neither the Constitution nor apparently any Cambodian domestic laws define the term “inviolability.” The Vienna Convention on Diplomatic Relations, which recognizes the inviolability of diplomatic agents, prohibits not only such agents’ arrest or detention, but also provides that they “[are] not obliged to give evidence as a witness.”[32] Therefore it appears that the plain meaning of “inviolability” would preclude an obligation to testify.

This appears to be the common view of both the Government and the Royal Family. Commenting on the scope of the Retired King’s constitutional immunity, National Assembly Deputy President Nguon Nhel has asserted that the Retired King “cannot rightfully be summoned to testify at the tribunal.”[33] Likewise, Prince Sisowath Thomico has said that the Retired King “cannot be compelled to testify.”[34] Nevertheless, he has also said that it is “unclear whether any head of state can be questioned by investigators under Cambodian law.”[35] To remove any doubt, an authoritative pronouncement on this topic is required from the Constitutional Council on the legal effect of Article 7 of the Constitution and the 2004 Law on the Titles and Privileges of the Former King and Queen of Cambodia. [36]

If the ECCC is considered to have the character of a domestic Cambodian court, any decision by the Constitutional Council would be binding on it. However, because the Pre-Trial Chamber has found that the Court is not an ordinary Cambodian court, but “a special internationalized tribunal,” even if the King Father is considered to have full immunity under Cambodian law it also may be necessary to determine if he is entitled to immunity under international law.



2. Protections of High Cambodian Officials under Cambodian Law



The Cambodian Constitution provides members of the National Assembly and Senate immunity from criminal arrest and detention, unless waived. Article 80 of the Cambodian Constitution provides in part that “[t]he accusation, arrest, or detention of [a National Assembly] member shall be made only with the permission of the National Assembly[.]” Likewise, Article 104 provides the same protection for members of the Senate, whose immunity from arrest may only be waived by the Senate.

With regard to members of the Royal Government, the Constitution recognizes their potential liability “for any crime or misdemeanour that he/she has committed in the course of his/her duty,” however the National Assembly must vote to file charges against him or her in the case of serious offenses committed in the course of duty.[37]

Unlike the King Father, high-level officials are not provided “inviolability,” but waivable procedural immunity from arrest and detention. It appears that neither the Constitution nor any other Cambodian laws offer such officials immunity from testifying at either a domestic Cambodian or international court.

Nevertheless, it remains possible that Cambodian courts may find that these officials are exempt from process due to the high-level offices they hold. Judge Itoe of the SCSL has cited a French case where the French Cour de Cassation found that President Chirac was not under any obligation to appear as a witness at the pre-trial stage of a trial because “the obligation is accompanied by a measure of a constraint … and is punished by a criminal penalty.”[38] Similarly, the Supreme Court of Sierra Leone has found that, “A serving Head of State is entitled to absolute immunity from process brought before national courts as well as before the national courts of third states[.]”[39] However, as with the immunity of the King Father discussed above, even if these officials have immunity under Cambodian law, such immunity may not be applicable before an internationalized court such as the ECCC.



B. Applicability of Personal Immunity Under International Law



International law establishes that certain high officials enjoy full immunity from the jurisdiction of foreign states. Immunity ratione personae, also called personal immunity, attaches “to the status of certain incumbent officials and operates as a procedural bar to the exercise of jurisdiction over them by the courts of another state.”[40]

The International Court of Justice has noted, “[I]n international law it is firmly established that … certain holders of high-ranking office in a State, such the Head of State, Head of Government and Minister for Foreign Affairs, enjoy immunities from jurisdiction in other States, both civil and criminal.”[41] The immunities are not for an official’s personal benefit, but to ensure that he or she is able to carry out required duties of the office he or she holds. Therefore, the extent of the immunities accorded is dependent on the nature of the functions an official exercises.[42] With regard to a Minister of Foreign Affairs, who travels frequently and conducts foreign relations with the full authority to act on behalf of his or her country, the ICJ found that “throughout the duration of his or her office, he or she when abroad enjoys full immunity from criminal jurisdiction and immunity.”[43]

International law does not, however, provide any jurisdictional immunity from prosecution for high officials in their home countries. They “may thus be tried by these countries’ courts in accordance with the relevant rules of domestic law.”[44] Moreover, high-level officials such as incumbent heads of state or former Ministers for Foreign Affairs may be subject to criminal proceedings before certain international courts, where they have jurisdiction.[45] According to the SCSL Appeals Chamber:

A reason for the distinction, in this regard, between national courts and international courts, though not immediately evident, would appear due to the fact that the principle that one sovereign state does not adjudicate on the conduct of another state; the principle of state immunity derives from the equality of sovereign states and therefore has no relevance to international criminal tribunals which are not organs of a state but derive their mandate from the international community.[46]

However, even if the ECCC were found not to be bound by Cambodian law on immunities and Cambodian high officials and the King Father were found to have no immunity from prosecution by the ECCC under international law, it is nevertheless unclear whether this necessarily means that they also have no immunity from testifying.

The ICTY and ICTR Trial Chambers have found that government officials have no immunity from being subpoenaed to testify before them[47] and also may be compelled to attend pre-testimony interviews[48]; however they have not subpoenaed incumbent high level officials. In discussions not material to the holding of any SCSL decision, two judges of the SCSL agreed; however a third has argued to the contrary. Trial Chamber Judge Thompson has said:

[I]f a priori there is no entitlement to immunity from international criminal prosecution reserved to a Head of State or government or any responsible government official under international law as regards the perpetration of international crimes, a fortiori international law does not confer any immunity from testifying as witnesses in international criminal trials.[49]

Likewise, Judge Robertson of the Appeals Chamber has said:

There is now such overwhelming authority that incumbent heads of state are amenable to international law, that the very proposition that they have sovereign immunity from the processes of international criminal courts must be viewed as the jurisprudential equivalent of the proposition that the earth is flat.[50]

On the other hand, Trial Judge Itoe, while agreeing that a head of state is not immune from being charged for crimes under international law by an international criminal court,[51] does not think he or she can be required to testify before an international court. This is because “contempt” for failure to comply with a subpoena is not an international crime and in his view international criminal courts do not have the jurisdiction to prosecute heads of state for ordinary offenses.[52]

C. Conclusion

There are many uncertainties with regard to the possibly immunity of King Father Sihanouk and Cambodian high-level government officials. It is not entirely clear that they have immunity from testifying under Cambodian law, but even if they do they may not before the ECCC. The exact character of the ECCC as an “internationalized” court has not been defined, nor has its relationship to Cambodian law. If the ECCC is not obligated to recognize any presumptive immunities under domestic law, while the King Father and high-level officials would not necessarily be immune from prosecution by the ECCC, it remains unclear whether or not they would nevertheless be immune from testifying.

Although international courts have not issued any holdings on incumbent high-officials’ immunity from testifying before them, they have considered whether or not the testimony of such officials meets their statutory requirements for issuing a subpoena. In all instances thus far they have been able make a determination solely by considering whether or not these officials’ testimony would be helpful to the case and whether or not it would be necessary to compel their testimony.



IV. Is It Legitimate and Necessary to Summon the Retired King or High-Level Government Officials?



At the SCSL there have been requests in two cases to subpoena President Ahmed Tejan Kabbah of Sierra Leone . SCSL Rule 54 states:



At the request of either party or of its own motion, 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.



This is the same standard applied by the ICTY and ICTR, but with a noticeably higher threshold than that set out in the ECCC Internal Rules, which give the Co-Investigating Judges the authority to summon and “take statements from any person whom they consider conducive to ascertaining the truth[.]”[53] Nevertheless, it is instructive to review the SCSL’s analysis and the factors it considers in determining the appropriateness of compelling testimony.

The SCSL Trial Chamber, following the jurisprudence of the ICTY, has found that Rule 54 involves a two-step test: determining (1) whether “the applicant has demonstrated a reasonable basis for the belief that the prospective witness is likely to give information that will materially assist the applicant’s case with regards to clearly identified issues in the forthcoming trial[,]” and (2) whether “the use of the subpoena[[54]] is necessary for an investigation or for the preparation or conduct of the applicant’s case and whether this information is obtainable through other means.”[55] “If the applicant has been unable to interview the prospective witness, the test will have to be applied in a reasonably liberal way[.]”[56]



A. Will the Testimony Sought Be Conducive to Ascertaining the Truth?



The ECCC standard for issuing a summons is whether the testimony sought would be “conducive for ascertaining the truth.” The ICTY and SCSL apply a higher standard: whether the testimony “will materially assist the applicant’s case with regards to clearly identified issues in the forthcoming trial.”[57] The ICTY has said under this standard the applicant “must be specific about the information sought from the prospective witness and must demonstrate a nexus between this information and the case against the accused.”[58] In determining whether information will materially assist an applicant seeking to subpoena or summon a witness, these courts consider,



the position held by the prospective witness in relation to the events in question, any relationship he may have (or have had) with the accused which is relevant to the charges, the opportunity which he may reasonably be thought to have had to observe those events (or to learn of those events) and any statements made by him to the prosecution or to others in relation to those events.[59]



In the SCSL Norman Trial Decision regarding President Kabbah, the SCSL examined President Kabbah’s position as President during Sierra Leone’s armed conflict, as it was alleged that at that time he was “commanding, materially supporting, and communicating with various members of the alleged CDF leadership”[60] who sought his testimony. The Trial Chamber found that the accused had failed to identify “with specific specificity” how his testimony would relate to a charge in the indictment or materially assist their case.[61]

Likewise, as to the President’s potential testimony about private conversations he had with the accused regarding acts and places in the indictment, the Trial Chamber found that there was no specific information about how this testimony would help the accused overcome criminal responsibility for the alleged acts.[62] And with regard to evidence the President may have about the accused’s participation in a common plan to restore the President’s government, the Trial Chamber said he had not provided sufficient explanation of how such testimony would impact the court’s findings on any element of any crime or mode of responsibility.[63]

Comparatively, in a later Sesay et al. decision, the Trial Chamber found that the (by that time) Former President Kabbah’s testimony would materially assist the accused with regard to two clearly identified issues: (1) that the accused “was doing his best to protect the detained UNAMSIIL peacekeepers, and to reinstate the stalled disarmament process,” and (2) that the accused “was not ordered to attack or coordinate attacks against the said UNAMSIL peacekeepers but acted alone.”[64]

The decision did not clearly indicate why the result was different in this case. However in his concurrence, Judge Itoe stated his view that, whereas in the Norman case the defense did not seek testimony directly impacting the determination of guilt or innocence, in this case, the defense sought evidence that would assist them in defending specific counts of the indictment.[65] In his view, the Norman request was clearly made solely for the purposes of venting anger against Kabbah for “sacrificing them to the Prosecution,” embarrassing and ridiculing him, and exposing his criminal involvement in the Sierra Leone conflict.[66]

The Nuon Chea team, who are seeking an opportunity to question the King Father, have said, “It’s hard to imagine a more uniquely situated individual to shed light on the events of Democratic Kampuchea.”[67] They have highlighted the retired King’s brief role as head of state of the DK regime, his presence in Cambodia during much of the Khmer Rouge period, and the information he may have been privy to due to his “unparalleled access to its senior leaders and hierarchy.” [68] Moreover, “‘Sihanouk is singularly capable of providing information relevant to the [prosecutors] allegations relating to the DK authority structure’.”[69]

With regard to the specified high-level Cambodian officials, who all held positions of command with the Khmer Rouge but defected before the fall of the DK regime, the Nuon Chea team has noted that they are “‘uniquely situated’ to assist judicial investigators by providing information about the Khmer Rouge power structure.”[70] The Nuon Chea investigative request apparently highlighted these officials’ “former ranks within the DK” and possible information in their possession about “the existence of a ‘common plan of systematic persecution’.”[71] In response, Minister for Information Khieu Kanarith noted:

You have to ask the logical questions. If they were low-ranking officers, how could they know about the system? If Hun did not clearly know who Nuon Chea was [during the regime], how could he be a witness?[72]

In his dissent in the Norman Trial Decision, Judge Thompson argued that the SCSL should adopt a more flexible standard for compelling testimony in order to uphold the equality of arms and principles of fundamental fairness and “ensure that no relevant evidence vital to the discovery of the truth is foreclosed by reasons of legal technicalities.”[73] His preferred approach appears closer to the ECCC Internal Rules requirement that the Co-Investigating Judges (CIJs) consider only whether it would be “conducive to ascertaining the truth” to issue a summons. In Judge Thomson’s view, it is premature to consider whether the evidence a subpoenaed witness may provide is favorable or adverse to the applicant as it amounts to “a predetermination of the probative value of such evidence.”[74] Instead, he believed only prima facie evidence should be required to show that the information sought is necessary for the investigation or trial.[75]

Additional insight into ECCC standard may be provided by Judge Robertson’s discussion in the SCSL Norman Appeals dissent regarding the materiality of evidence that will “get at the ‘full truth’ of what happened[.]”[76] Although he, like Judge Thomson, believes that the SCSL should apply a more flexible approach to the issuance of subpoenas,[77] in his view,

…it is not the function of a war crimes court to get at the “full truth” about the war. That lengthy exercise must be left to historians and truth commissions. This court is only concerned to get at the truth concerning the specific acts that are charged against the defendants: more precisely, to examine whether the prosecution evidence provides the charge beyond a reasonable doubt. It is a frequent mistake, often made by prosecutors who overload indictments but here made by counsel on behalf of defendants, to think that the court can cope with receiving evidence which is “relevant” only because it illuminates some aspect of the conflict.[78]

Bearing in mind Judge Robertson’s admonition, the roles of the potential witnesses and their relative access to Nuon Chea or the other suspects suggest that obtaining the testimony of Former King Sihanouk may “be conducive to ascertaining the truth” about the charges against Nuon. However it is not clear that this standard can be met with regard to the named high-level government officials, who were mid-level KR commanders apparently not in contact with or privy to the decisions or policies formulated by the charged DK leaders.



B. Is a Summons Necessary?



In determining if a coercive order is not only material, but “necessary,” as required by their statutes, international tribunals require an applicant to show that the evidence at issue “cannot be obtained without judicial intervention.”[79] This includes two considerations: would the witness testify voluntarily; and can the information be obtained from another source.



1. Will High-Level Cambodian Government Officials or the King Father Accept a Request to Testify Voluntarily?



International tribunals require that the applicant seeking compelled testimony “must first demonstrate that it has made reasonable attempts to obtain the voluntary cooperation of the parties involved and has been unsuccessful.”[80]

Throughout the 12 years since the Cambodian Government first requested international assistance in the creation of a Khmer Rouge tribunal, King Father Sihanouk has many times indicated that he is willing to testify about his experiences during the Khmer Rouge regime. A UN negotiator involved in early negotiations on the framework for the Court reports,



King Sihanouk gave full support to the efforts on the Khmer Rouge issue outlined in my General Assembly report, telling me that if this initiative was not pursued, there would never be an end to impunity in Cambodia . He added that he himself was willing to be called to a tribunal to explain his own relationship to the Khmer Rouge regime. ‘This is my duty,’ he said.[81]



In 1999 the King Father said “he was willing to give up his royal and constitutional immunity and accept a prison term” should a Khmer Rouge court wish to put him on trial.[82] Moreover, “Even if the judges of this tribunal do not summon me, I will present myself before this tribunal[.]”[83] In 2004 the King Father issued an announcement stating his willingness to testify at the ECCC: “I will testify before the court not only one time but every time the court holds a hearing for questioning this person and that person, every day, every week, every month, every year, as long as I am alive.”[84] He also asked that his wife, Queen Norodom Monineath, be allowed to testify, “[A]s she remembers dates well and was privy to his “living conditions.”[85] As late as 2006 it was reported as saying, “I am not lacking the courage to go answer before the tribunal.”[86]

Nevertheless, the retired King’s expressions of support for the ECCC process have been regularly punctuated by vocal dislike of the Court and a lack of willingness to participate. In particular, since the UN refused to go to the Palace at his request in 2007, the King Father has consistently said that he will not cooperate. Shortly after, it was reported that the Former King said “he had told the officials that the meeting was the only chance for the court to get his input.”[87] Most recently, in July 2009, an aid to the retired King said that he would refuse to cooperate “even if the court calls him to testify.”[88]

Even if the King Father wanted to testify, he may be counselled not to do so by the Government. Information Minister Khieu Kanharith has said that the Government does not want the retired King to be called because it was adversely impact his role as a symbol of national unity.[89]

No information has been made public about the Prime Minister and other named officials willingness to testify. Although he originally requested UN assistance in creating a Khmer Rouge Court and his Government negotiated its creation, Prime Minister Hun Sen’s public support for the Court has never been strong. Most recently he has indicated that he wouldn’t mind if it closed down and has opposed the Court extending investigations to five more suspects.[90] Nevertheless, it is not clear that he and other officials would refuse to testify if asked.

Due to the uncertainty regarding the Retired King and high-level officials’ willingness to testify if asked, assessing their willingness may be an appropriate first step for the ECCC before issuing a summons.



2. Can the Desired Information Be Obtained from Another Source?



The SCSL, referencing ICTY jurisprudence, has said that “convenience is not a sufficient justification for the issuance of a subpoena, and that when the evidence sought to be proffered can be obtained though other means, it would be inappropriate to grant such an order.”[91]

In the Norman case, the accused argued that as President of Sierra Leone, Kabbah was “the top figure of the CDF” and he would have important evidence regarding its command structure, including subordinates’ duties and the chain of command.[92] Nevertheless, the Trial Chamber decided with little analysis that this information was obtainable through other means.[93] On appeal, the SCSL Appeals Chamber agreed with the lower court that “[t]he Appellant has not shown why the President’s personal observations about [his] relative culpability … are unique.”[94]

In dissent from the Trial Chamber decision, Judge Thomson argued that in determining “what actually transpired at the highest level of the CDF hierarchy,” the President would be best placed to provide that information.[95] Likewise, in dissent from the Appeals Chamber decision, Justice Robertson argued that evidence obtained from a willing foot soldier is not as valuable as that obtained from an unwilling commander because the commander’s testimony by definition will be more reliable, authoritative, and credible.[96] For that reason, he suggested that, instead of considering whether evidence may be obtained by other means, courts should consider whether the requested testimony may be the “best evidence available.”[97]

In contrast to the SCSL, which seems to have had strong concerns that the Norman accused sought merely to embarrass President Kabbah, the ICTY ordered the former sector commander and military observer of the United Nations Assistance Mission in Rwanda and Chief of Staff of the Ghanian army to testify after noting in particular that the testimony involved his personal observations. Highlighting his position as an UNAMIR official and his meetings with the accused, it found that he “had the opportunity to observe the events at issue” and that the information he may provide would be relevant and “could not be obtained by other means.”[98]

King Father Sihanouk likely personally observed relevant events at issue in the case against Nuon and others. This type of access, even if limited, was uncommon, and therefore, there are few others who would be able to provide similar testimony. On the other hand, it appears that the Prime Minister and other high-level Government officials would be unlikely to have any information related to events that could not also be obtained from an equally knowledgeable source.



C. Conclusion



The King Father was initially supportive of the ECCC and in the past has expressed a willingness to testify if called. If the Court were to call up on him and request his assistance, it remains possible that he would be willing to offer his personal recollections to the Court. It seems unquestionable that his testimony would be “conducive to ascertaining the truth” about many events related to crimes charged against Nuon and others. As the King Father has been unwell in recent years, it is notable that the Cambodian Procedure Code provides, “If the witness is sick or cannot travel, the investigating judge and the clerk may visit his residence or the place where the witness stays to take the statement of the witness.”[99] Such a procedure might also be adopted by the ECCC.



It is unknown whether the Prime Minister and other high-level officials have been asked to testify, and if their testimony is found relevant this would be an appropriate first step before issuing a summons. However, based on international jurisprudence is not clear that their testimony is necessary to the proceedings or would directly relate to the charges against the accused.