guardian.co.uk, Thursday 16 July 2009 19.37 BST
A tourist walks past pictures of those who died at security prison 21, now
the Tuol Sleng genocide museum. The Khmer Rouge killed almost two million
Cambodians. Photograph: Tang Chhin Sothy/AFP/Getty Images
Chum Mey has waited for 30 years to tell his story to the world: the story
of a prisoner, one of the very few, who survived incarceration in Pol Pot's
most notorious and murderous prison.
Standing behind bulletproof glass in a courtroom in Phnom Penh, the former
engineer, now a frail 79-year-old, recalled the agony of jail S21. "I was
tortured for 12 days and nights. Every day they beat me with a stick. They
used pliers to pull out my toenails," he said, breaking down in tears. "They
used electric shocks. Twice I lost consciousness."
Vann Nath, another survivor, added to the narrative of horrors being heard
in the Extraordinary Chambers in the Courts of Cambodia – the official name
for the United Nations-backed tribunal into the crimes of the Pol Pot
regime.
"We were so hungry we would eat insects that dropped from the ceiling," the
63-year-old said. "We would quickly grab and eat them so we could avoid
being seen by the guards. We ate our meals next to dead bodies, and we
didn't care because we were like animals."
In the packed public gallery some of the 500 Cambodians present shed their
own tears, triggered by painful memories of the killing fields.
The moving testimonies came during the first trial of a senior Khmer Rouge
figure, Kaing Guek Eav, known as Duch, the former director of S21.
Duch, 66, a former maths teacher, has been charged with crimes against
humanity and war crimes, and indicted for torture and the execution of more
than 15,000 men, women and children detained in S21 during the Khmer Rouge
reign of terror from 1975 to 1979.
Sitting only a few metres from his former victims Duch has for the most part
remained stony-faced over the last few weeks , staring straight ahead.
Almost every day the tribunal has heard gruesome details of torture –
poisonous centipedes inserted into a prisoner's vagina, waterboarding, and
medical experiments carried out on inmates.
Today it was the turn of a former prison guard to describe how he was forced
to send thousands of detainees to an execution site.
Duch has admitted in court to some of these horrors. "Live prisoners were
used for surgical study and training. Draining blood was also done," he has
said.
The former commander has testified the torture regime was ordered and
controlled from the top. He answered directly to Son Sen, Pol Pot's interior
minister (now dead), and also to Nuon Chea, Pol Pot's second in command (a
defendant in a second trial). Claiming that he was afraid to disobey their
orders, Duch has performed with an intriguing mixture of admissions, remorse
and denial.
"I would like to express my regret and heartfelt sorrow, and I accept
responsibility for what happened in S21," he told the court tearfully on one
occasion. But he has also vigorously denied claims he participated in
beatings and torture.
Nam Man, 48, another survivor, believes otherwise. She said she saw him beat
two of her uncles to death with a metal rod. "Are you going to deny the
facts and the truth that I have just told the chamber?" she asked.
The last few weeks have marked a turning point in this UN-backed tribunal
for the crimes of Democratic Kampuchea, a regime that emptied the cities and
transformed the countryside into a vast complex of slave labour camps.
This long-awaited "mixed tribunal", which combines Cambodian lawyers and
judges with international jurists, has always been controversial. In the
1980s, the US government blocked any attempt to get a tribunal off the
ground. Western governments perversely permitted the Khmer Rouge to occupy
Cambodia's seat in the UN.
Now, 30 years on, the tribunal that many said would never exist is under
fire for alleged corruption and claims of political meddling by the prime
minister, Hun Sen. With international funding far from assured, some have
predicted its imminent collapse.
But the hail of criticism from some quarters is being balanced by a growing
sense of the trial's importance, especially for the victims. Controversy is
being outweighed by catharsis as Cambodia faces up to its past.
"So many ordinary villagers are coming to the court," said the tribunal's
public affairs head, Reach Sambath. "This is a turning point in the trial.
The public gallery was so full on one day that the New Zealand judge, Dame
Silvia Cartwright, ruled that Cambodians had priority over international
observers."
The respected Documentation Centre of Cambodia has concluded that the Pol
Pot regime caused the death of just under 2 million people from torture,
mass execution, disease, forced labour and starvation. Youk Chhang, the
centre's director, insists that the packed gallery proves "Cambodians must
have ownership over the process".
"It is important that Cambodians see for themselves justice and actively
participate. This tribunal can even be a model for future tribunals," he
said.
Ros Phirum, 54, was among the 400 villagers from Kien Svay district who
recently attended the trial. "My brother was jailed by the Khmer Rouge and
they burned him alive. Now I feel some justice is finally happening."
At the very least, this tribunal has made legal history. The Cambodian model
has enabled victims to file a case against the accused alongside the
prosecution, with civil-party lawyers also entitled to cross-examine and
call witnesses. The tribunal has created a victims unit to facilitate the
work of civil parties.
The search for justice has been accompanied by new moves to put the horrors
of the Khmer Rouge on Cambodia's syllabus. A new book, Democratic Kampuchea
by scholar Khamboly Dy, has been circulated to all 1,366 secondary schools
as the first ever textbook on the Khmer Rouge era.
The Duch trial is expected to finish by September, but there are many doubts
about a second trial involving the four surviving Khmer Rouge leaders.
Pol Pot's right-hand man, Nuon Chea (known as Brother Number Two), and his
foreign minister, Ieng Sary, are both ailing and in their 80s. Many
Cambodians say they will feel cheated if they die before a verdict is
reached on the whole regime, and not just one executioner. But Human Rights
Watch considers that even if all five former Khmer Rouge senior cadres are
tried, the result will still offer incomplete accounting and flawed justice.
Thirty years after the toppling of the regime in 1979, there are inevitably
gaps in the indictment. Pol Pot and military commander Ta Mok are dead. But
for Cambodians who have waited so long to see their Khmer Rouge tormentors
in the dock, incomplete justice is far better than no justice at all.
For Chum Mey, it was better to testify in front of a public gallery packed
with deeply involved Cambodian villagers, than in the sterile legal
atmosphere of the world court in The Hague.
"I was so excited when called to give evidence," Chum Mey explained. "I was
happy to shed light before this chamber. Every single day I hear about Tuol
Sleng [S21] my tears kept flowing. I feel so much relief about getting all
this off my chest."
When asked about Duch's apology, Chum Mey responded: "A few tear drops could
not wash away the suffering of millions who died. "Only the court can help
to wash away the suffering."
Brutal leader
Saloth Sar – later known as Pol Pot – became involved in Marxist politics
while studying in Paris in 1949, and served as a leader of the Khmer Rouge
on his return to Cambodia.
After years of guerilla activity fighting the government, Prince Norodom
Sihanouk was deposed in 1970 in a military coup. The new regime entered a
civil war against Pol Pot's forces, and the Khmer Rouge captured Phnom Penh
in 1975.
It set about turning Cambodia into an agricultural society where most
existed in appalling conditions in work camps. Youk Chhang, director of the
Documentation Centre of Cambodia, has calculated that just under 2 million
were executed, tortured to death, or died of hunger or disease.
In 1979, the Vietnamese invaded and defeated the Khmer Rouge regime. Pol Pot
fled, and remained free until 1997. He died a year later.
Sunday, July 19, 2009
Friday, July 17, 2009
FORMER GUARD PROVIDES FACT-PACKED TESTIMONY REGARDING OPERATIONS AT TUOL SLENG AND CHOEUNG EK
July 16, 2009
By Laura MacDonald, Member of the New York Bar and Consultant to the Center
for International Human Rights, Northwestern University School of Law
Recent photo of Him Huy with his wife and child
Photo by Heng Sinith
Him Huy (fourth from right) and other S-21 prison guards, 1977
Courtesy of Toul Sleng Genocide Museum/ DC-Cam Archives
54 year old Him Huy returned to the witness stand today and testified in
great detail about operations at Tuol Sleng prison (S-21) and the killing
fields at Choeung Ek, both secret facilities run by the Accused Person,
Kaing Guek Eav (alias Duch). Given that Duch claims limited knowledge of
day-to-day operations and the other witnesses were confined to very small
areas, it was refreshing to hear the accounts of an observant guard who had
various responsibilities in various locations. Him will continue his
testimony on Monday.
Him Never Exercised His Right to Remain Silent, But His Lawyer Was Silent
All Day
Yesterday, Him only appeared long enough to request time to consult his
lawyer regarding his right against self-incrimination. In light of this, it
is curious that during nearly six hours of questioning today, he never
exercised his right to remain silent and admitted to executing at least one
person at Choeung Ek.
Him’s lawyer, assigned to him by the ECCC’s Witness and Expert Support Unit,
did not speak during today’s proceedings, although it is still unclear if he
is entitled to speak. According to ECCC Public Affairs, the lawyer is
advising, rather than representing, his client on the limited issue of
self-incrimination. This morning, President Nil Nonn asked Him if he would
like his lawyer to remain in the courtroom, where he was already seated, or
if he would like him to wait outside. Him said he wished his lawyer to
remain in the courtroom. The President then instructed Him that he should
only seek his lawyer’s advice on self-incrimination issues and answer all
other questions on his own.
Operations In and Around S-21
In 1972 or 1973, Him was forced to join the military and, after being
trained, was transferred from unit to unit. On April 17, 1975, Him’s unit
helped the Khmer Rouge “liberate” Phnom Penh. After that, he worked in the
rice fields under Comrade Hor, Duch’s eventual deputy, who recruited him to
work at S-21.
Him’s “defense section” unit was stationed in a small building just outside
the S-21 complex to guard the entrance and receive prisoners as they
arrived. Him’s unit also carried out arrests, picked up previously arrested
prisoners, and transported prisoners to Choeung Ek. When none of these
duties called, they raised poultry. Him started out as an ordinary guard and
was later promoted to chief of his unit after some of his colleagues
disappeared. As chief, he patrolled the S-21 grounds and buildings to ensure
guards were discharging their duties vigilantly.
Him’s unit received orders from Duch through Hor to carry out arrests in
Phnom Penh. Him would go to the Phnom Penh Central Market at night time to
arrest enemies lured there by Khmer Rouge cadre under false pretenses. Him’s
unit also went out to the countryside to transport prisoners that had been
arrested by their respective military unit or government ministry to S-21.
On two occasions, Duch ordered Him to transport about 15 uniformed
Vietnamese soldiers to S-21. The “city messenger” also brought Cambodians
who had just returned from abroad to S-21 under false pretenses and Him’s
unit arrested them there.
When people were transported to S-21, they were shackled, blindfolded,
handcuffed, and made to sit down in a truck. Prisoners were not allowed any
freedom of movement to relieve themselves as that would increase the risk of
escape. Travel in Cambodia at the time required permission papers and, on at
least one occasion, Him was given such a letter from Hor signed by Duch’s
superior, Son Sen.
Upon arrival at S-21, everyone passed through the small building just
outside the compound gate. For those not yet arrested, Him’s unit brought
the soon-to-be prisoners into the room, had them sit at a table, and then
arrested them. Sometimes 50 or 60 prisoners arrived together, in which case
only one prisoner was handled at a time. All prisoners were registered by
name and photographed with a serial number before being passed off to
another unit responsible for classifying the prisoner with regard to his
importance and assigning him to a cell accordingly. At this stage, some of
the least important prisoners were sent to Prey Sar re-education camp (S-24)
instead of S-21.
With regard to detention conditions, Him confirmed that prisoners were
bathed by guards who sprayed hoses into the cells. This technique was used
because it did not create a risk of escape. Him confirmed the food rations
were inadequate and prisoners were “very thin,” explaining that only one and
a half ladles of gruel were given to prisoners twice daily. He said that
women were considered too weak to revolt, so they were kept unshackled with
free hands in a large locked room along with their young children.
Him never personally observed an interrogation session, but explained that
all prisoners were detained, interrogated, tortured, and killed. He said
many prisoners died in their cells from torture wounds and were buried
subsequently in the S-21 compound. Those who survived were executed one or
two weeks after completing their interrogation.
According to Him, the purged S-21 staff, important prisoners, Vietnamese
POWs, foreigners, and children were all executed near the S-21 compound,
rather than at Choeung Ek. They were removed from their cells at night time,
one by one, after being told they were being taken to a new home. They were
walked to the edge of a pit where they were forced to kneel down. Next,
guards used oxcart axles to strike the backs of prisoners’ necks before
using knives to slash their throats. Prisoners were then stripped of any
remaining clothing and their handcuffs were removed for future use.
Prisoners were kicked into the pits and buried immediately.
As for numbers, Him recalled three or four light-haired foreigners with big
builds being burned with tires on a paved road after their execution near
S-21. He said Duch could be correct that 345 Vietnamese were imprisoned at
S-21 and opined they were all killed near the compound. Him guessed that 50
to 60 children between 1 and 8 years old were killed near the compound.
According to Duch, no one was ever released from S-21. Him confirmed this
point generally, but stated he once saw a group of Thai prisoners released
for reasons unknown to him.
Him explained that the ranks were purged heavily at S-21 with perhaps 200
arrested out of 400 staff. The majority of the S-21 staff came from Division
703. In 1977, many Division 703 cadres from the field were interrogated and
their confessions implicated their former colleagues who had become S-21
staff. Him was not aware of what alleged offenses those people had committed
and only knew that “people kept disappearing.” He said that sometimes guards
who had committed minor offenses were sent to S-24 for re-education. Him
explained that in his early days at S-21 he would roam freely and chat with
colleagues, but after the purges started everyone was being monitored so
movements and conversations were restricted.
How Executions Were Carried Out at Choeung Ek
Him provided the most detailed testimony to date on operations at Duch’s
killing fields at Choeung Ek.
After being given a list of names by Hor, Him’s unit would remove those
prisoners from their S-21 cells around 6:30 p.m. and walk them to a covered
truck where they sat shackled and blindfolded for the thirty-minute ride.
They were told they were going to a new home. Him was responsible for
checking the 60 to100 prisoners’ names off the list before the 4X4 trucks
and land rovers headed for Choeung Ek.
Upon arrival, the unit at Choeung Ek was ready to receive the prisoners.
First, they switched on a generator to power ten fluorescent lights used to
illuminate human targets in the dark. Prisoners were forced to wait in a
concealed area beneath a big house. They were taken out one by one to the
pits where the same execution procedure from S-21 was employed: oxcart axles
were used to strike the backs of prisoners’ necks and then knives were used
to slash their throats. Clothes and handcuffs were removed. Prisoners were
kicked into the pits and buried immediately. Given the large number of
prisoners and dark working conditions, “it took hours” to kill everyone,
sometimes until 2 a.m. During this process, a man once escaped, but was
later recaptured.
While Duch testified weeks ago that he only visited Choeung Ek once when
forced by his superiors, Him testified that Duch visited Choeung Ek at least
twice. On one occasion, Duch stayed until all the prisoners were executed.
While Him previously told the co-investigating judges that Duch taught him
execution techniques at a meeting, Him backed away from this crucial
statement today, saying he now thinks it was Hor who gave the instructions.
Moreover, Him previously told the co-investigating judges that Duch once
specifically instructed him to execute a man. Him backed away from this
statement as well, claiming that he was not sure if it was Duch or Hor, but
it was definitely either Duch or Hor. Generating some solid courtroom drama,
Judge Lavergne asked Duch to stand and asked Him, “Who is this?” Judge
Lavergne inquired again, more forcefully, if it was Duch who ordered Him to
execute a man. Him tried to justify his confusion by explaining it was dark
at Choeung Ek and guards had to rush around to kill everyone by dawn.
S-24
In late 1978, Him was sent, along with two groups of men, to S-24 to work in
the rice fields, dig canals, and build dams. From his brief testimony on the
subject, it was unclear whether he was detained as a prisoner there or was
simply working there. He claimed he slept normally at night and was not
locked in his room. He was not told why he was sent there. Him remained at
S-24 until the Vietnamese took Phnom Penh in January 1979.
Protective Measures Denied
The Trial Chamber announced its denial of witness KW10’s request for
protective measures.
The Witness and Expert Support Unit (WESU) provided the Chamber with a
confidential risk assessment and determined not to recommend protective
measures because the witness, a former interrogator at S-21, is well known
to the public and could be readily identified even if he testified in closed
session. The Chamber agreed with WESU, noting that KW10 has made himself
widely known to the public such that protective measures would not be
effective. Moreover, his family, friends, and neighbors are already aware of
his background.
Under Internal Rule 29, upon request or its own initiative, the Chamber may
order the use of protective measures to protect witnesses “whose appearance
before them is liable to place their life or health or that of their family
members or close relatives in serious danger.” The Rules provide for such
measures as proceeding in camera, using pseudonyms, and distorting a witness’s
voice and appearance.
By Laura MacDonald, Member of the New York Bar and Consultant to the Center
for International Human Rights, Northwestern University School of Law
Recent photo of Him Huy with his wife and child
Photo by Heng Sinith
Him Huy (fourth from right) and other S-21 prison guards, 1977
Courtesy of Toul Sleng Genocide Museum/ DC-Cam Archives
54 year old Him Huy returned to the witness stand today and testified in
great detail about operations at Tuol Sleng prison (S-21) and the killing
fields at Choeung Ek, both secret facilities run by the Accused Person,
Kaing Guek Eav (alias Duch). Given that Duch claims limited knowledge of
day-to-day operations and the other witnesses were confined to very small
areas, it was refreshing to hear the accounts of an observant guard who had
various responsibilities in various locations. Him will continue his
testimony on Monday.
Him Never Exercised His Right to Remain Silent, But His Lawyer Was Silent
All Day
Yesterday, Him only appeared long enough to request time to consult his
lawyer regarding his right against self-incrimination. In light of this, it
is curious that during nearly six hours of questioning today, he never
exercised his right to remain silent and admitted to executing at least one
person at Choeung Ek.
Him’s lawyer, assigned to him by the ECCC’s Witness and Expert Support Unit,
did not speak during today’s proceedings, although it is still unclear if he
is entitled to speak. According to ECCC Public Affairs, the lawyer is
advising, rather than representing, his client on the limited issue of
self-incrimination. This morning, President Nil Nonn asked Him if he would
like his lawyer to remain in the courtroom, where he was already seated, or
if he would like him to wait outside. Him said he wished his lawyer to
remain in the courtroom. The President then instructed Him that he should
only seek his lawyer’s advice on self-incrimination issues and answer all
other questions on his own.
Operations In and Around S-21
In 1972 or 1973, Him was forced to join the military and, after being
trained, was transferred from unit to unit. On April 17, 1975, Him’s unit
helped the Khmer Rouge “liberate” Phnom Penh. After that, he worked in the
rice fields under Comrade Hor, Duch’s eventual deputy, who recruited him to
work at S-21.
Him’s “defense section” unit was stationed in a small building just outside
the S-21 complex to guard the entrance and receive prisoners as they
arrived. Him’s unit also carried out arrests, picked up previously arrested
prisoners, and transported prisoners to Choeung Ek. When none of these
duties called, they raised poultry. Him started out as an ordinary guard and
was later promoted to chief of his unit after some of his colleagues
disappeared. As chief, he patrolled the S-21 grounds and buildings to ensure
guards were discharging their duties vigilantly.
Him’s unit received orders from Duch through Hor to carry out arrests in
Phnom Penh. Him would go to the Phnom Penh Central Market at night time to
arrest enemies lured there by Khmer Rouge cadre under false pretenses. Him’s
unit also went out to the countryside to transport prisoners that had been
arrested by their respective military unit or government ministry to S-21.
On two occasions, Duch ordered Him to transport about 15 uniformed
Vietnamese soldiers to S-21. The “city messenger” also brought Cambodians
who had just returned from abroad to S-21 under false pretenses and Him’s
unit arrested them there.
When people were transported to S-21, they were shackled, blindfolded,
handcuffed, and made to sit down in a truck. Prisoners were not allowed any
freedom of movement to relieve themselves as that would increase the risk of
escape. Travel in Cambodia at the time required permission papers and, on at
least one occasion, Him was given such a letter from Hor signed by Duch’s
superior, Son Sen.
Upon arrival at S-21, everyone passed through the small building just
outside the compound gate. For those not yet arrested, Him’s unit brought
the soon-to-be prisoners into the room, had them sit at a table, and then
arrested them. Sometimes 50 or 60 prisoners arrived together, in which case
only one prisoner was handled at a time. All prisoners were registered by
name and photographed with a serial number before being passed off to
another unit responsible for classifying the prisoner with regard to his
importance and assigning him to a cell accordingly. At this stage, some of
the least important prisoners were sent to Prey Sar re-education camp (S-24)
instead of S-21.
With regard to detention conditions, Him confirmed that prisoners were
bathed by guards who sprayed hoses into the cells. This technique was used
because it did not create a risk of escape. Him confirmed the food rations
were inadequate and prisoners were “very thin,” explaining that only one and
a half ladles of gruel were given to prisoners twice daily. He said that
women were considered too weak to revolt, so they were kept unshackled with
free hands in a large locked room along with their young children.
Him never personally observed an interrogation session, but explained that
all prisoners were detained, interrogated, tortured, and killed. He said
many prisoners died in their cells from torture wounds and were buried
subsequently in the S-21 compound. Those who survived were executed one or
two weeks after completing their interrogation.
According to Him, the purged S-21 staff, important prisoners, Vietnamese
POWs, foreigners, and children were all executed near the S-21 compound,
rather than at Choeung Ek. They were removed from their cells at night time,
one by one, after being told they were being taken to a new home. They were
walked to the edge of a pit where they were forced to kneel down. Next,
guards used oxcart axles to strike the backs of prisoners’ necks before
using knives to slash their throats. Prisoners were then stripped of any
remaining clothing and their handcuffs were removed for future use.
Prisoners were kicked into the pits and buried immediately.
As for numbers, Him recalled three or four light-haired foreigners with big
builds being burned with tires on a paved road after their execution near
S-21. He said Duch could be correct that 345 Vietnamese were imprisoned at
S-21 and opined they were all killed near the compound. Him guessed that 50
to 60 children between 1 and 8 years old were killed near the compound.
According to Duch, no one was ever released from S-21. Him confirmed this
point generally, but stated he once saw a group of Thai prisoners released
for reasons unknown to him.
Him explained that the ranks were purged heavily at S-21 with perhaps 200
arrested out of 400 staff. The majority of the S-21 staff came from Division
703. In 1977, many Division 703 cadres from the field were interrogated and
their confessions implicated their former colleagues who had become S-21
staff. Him was not aware of what alleged offenses those people had committed
and only knew that “people kept disappearing.” He said that sometimes guards
who had committed minor offenses were sent to S-24 for re-education. Him
explained that in his early days at S-21 he would roam freely and chat with
colleagues, but after the purges started everyone was being monitored so
movements and conversations were restricted.
How Executions Were Carried Out at Choeung Ek
Him provided the most detailed testimony to date on operations at Duch’s
killing fields at Choeung Ek.
After being given a list of names by Hor, Him’s unit would remove those
prisoners from their S-21 cells around 6:30 p.m. and walk them to a covered
truck where they sat shackled and blindfolded for the thirty-minute ride.
They were told they were going to a new home. Him was responsible for
checking the 60 to100 prisoners’ names off the list before the 4X4 trucks
and land rovers headed for Choeung Ek.
Upon arrival, the unit at Choeung Ek was ready to receive the prisoners.
First, they switched on a generator to power ten fluorescent lights used to
illuminate human targets in the dark. Prisoners were forced to wait in a
concealed area beneath a big house. They were taken out one by one to the
pits where the same execution procedure from S-21 was employed: oxcart axles
were used to strike the backs of prisoners’ necks and then knives were used
to slash their throats. Clothes and handcuffs were removed. Prisoners were
kicked into the pits and buried immediately. Given the large number of
prisoners and dark working conditions, “it took hours” to kill everyone,
sometimes until 2 a.m. During this process, a man once escaped, but was
later recaptured.
While Duch testified weeks ago that he only visited Choeung Ek once when
forced by his superiors, Him testified that Duch visited Choeung Ek at least
twice. On one occasion, Duch stayed until all the prisoners were executed.
While Him previously told the co-investigating judges that Duch taught him
execution techniques at a meeting, Him backed away from this crucial
statement today, saying he now thinks it was Hor who gave the instructions.
Moreover, Him previously told the co-investigating judges that Duch once
specifically instructed him to execute a man. Him backed away from this
statement as well, claiming that he was not sure if it was Duch or Hor, but
it was definitely either Duch or Hor. Generating some solid courtroom drama,
Judge Lavergne asked Duch to stand and asked Him, “Who is this?” Judge
Lavergne inquired again, more forcefully, if it was Duch who ordered Him to
execute a man. Him tried to justify his confusion by explaining it was dark
at Choeung Ek and guards had to rush around to kill everyone by dawn.
S-24
In late 1978, Him was sent, along with two groups of men, to S-24 to work in
the rice fields, dig canals, and build dams. From his brief testimony on the
subject, it was unclear whether he was detained as a prisoner there or was
simply working there. He claimed he slept normally at night and was not
locked in his room. He was not told why he was sent there. Him remained at
S-24 until the Vietnamese took Phnom Penh in January 1979.
Protective Measures Denied
The Trial Chamber announced its denial of witness KW10’s request for
protective measures.
The Witness and Expert Support Unit (WESU) provided the Chamber with a
confidential risk assessment and determined not to recommend protective
measures because the witness, a former interrogator at S-21, is well known
to the public and could be readily identified even if he testified in closed
session. The Chamber agreed with WESU, noting that KW10 has made himself
widely known to the public such that protective measures would not be
effective. Moreover, his family, friends, and neighbors are already aware of
his background.
Under Internal Rule 29, upon request or its own initiative, the Chamber may
order the use of protective measures to protect witnesses “whose appearance
before them is liable to place their life or health or that of their family
members or close relatives in serious danger.” The Rules provide for such
measures as proceeding in camera, using pseudonyms, and distorting a witness’s
voice and appearance.
Too Late for Revenge
By MARSHALL KIM
Published: July 15, 2009
I WAS 15 in 1975, when Pol Pot’s Khmer Rouge overtook Cambodia, enslaving my
people and turning our farmland into what the world now calls the Killing
Fields. During the next four years I lost my mother and father, my brothers,
aunts, uncles and friends to the cruel oppression that claimed 1.7 million
lives.
As a boy I prayed every day for someone to stop the slavery and the
killings. No one did. I saw soldiers force people to dig the holes in which
they would be buried alive. We ate mice, rats, lizards. My 8-year-old niece
starved before my eyes. I cried until I had no tears.
I survived by cutting our Khmer Rouge leader’s hair and making bamboo
baskets, which my elders used to carry away the dirt we were ordered to dig
from canals. In 1979, alone and desperate, I escaped to a Thai refugee camp.
Sponsors helped me gain passage to New York City in 1982. I spoke no
English, had no money and lived tormented by images of cruelty and death.
Today, I own a hair salon in Manhattan and live with my wife and two
children in Scarsdale. We have enough to eat, to call a doctor or buy
medicine when sick, and money left over for charity. I wonder why I am so
blessed.
Now I read about the United Nations trial of Kaing Guek Eav, known as
Comrade Duch, the Khmer Rouge commander of the Tuol Sleng prison. I read the
testimony of victims and witnesses, like me, of torture and murder.
And I find myself asking, what sort of justice is possible now? After
ignoring our suffering when action might have saved our country, what does
the United Nations expect to do for Cambodia now? Placing elderly Khmer
Rouge leaders on trial will not bring back those who lost their lives in the
Killing Fields, or bring peace to the survivors. It will only stir more
anger and misery and hate. Pol Pot, the chief criminal, is long dead. So are
many of the others who killed and tortured at his command.
For Cambodians, this should be a time of cooperation, peace and prosperity.
Around 70 percent of Cambodia’s population is under 30 years old. They didn’t
experience the Killing Fields, and they face enough challenges in their
daily struggle to make ends meet. We who were lucky enough to survive once
looked forward to trials, but it has been 30 years — too much time has gone
by for us to want to waste our energy seeking revenge.
I don’t mean to say we should forget. We can’t. Let the horrors be
documented in books and films and let the truth be recorded for the entire
world to learn. But by pursuing this trial instead of working to improve the
lives of young Cambodians, the United Nations demonstrates it still has not
learned the lesson of the Killing Fields: Act before it’s too late.
Marshall Kim, the owner of a hair salon, is the founder of the
Cambodian-American Foundation for Education, a charitable organization.
Published: July 15, 2009
I WAS 15 in 1975, when Pol Pot’s Khmer Rouge overtook Cambodia, enslaving my
people and turning our farmland into what the world now calls the Killing
Fields. During the next four years I lost my mother and father, my brothers,
aunts, uncles and friends to the cruel oppression that claimed 1.7 million
lives.
As a boy I prayed every day for someone to stop the slavery and the
killings. No one did. I saw soldiers force people to dig the holes in which
they would be buried alive. We ate mice, rats, lizards. My 8-year-old niece
starved before my eyes. I cried until I had no tears.
I survived by cutting our Khmer Rouge leader’s hair and making bamboo
baskets, which my elders used to carry away the dirt we were ordered to dig
from canals. In 1979, alone and desperate, I escaped to a Thai refugee camp.
Sponsors helped me gain passage to New York City in 1982. I spoke no
English, had no money and lived tormented by images of cruelty and death.
Today, I own a hair salon in Manhattan and live with my wife and two
children in Scarsdale. We have enough to eat, to call a doctor or buy
medicine when sick, and money left over for charity. I wonder why I am so
blessed.
Now I read about the United Nations trial of Kaing Guek Eav, known as
Comrade Duch, the Khmer Rouge commander of the Tuol Sleng prison. I read the
testimony of victims and witnesses, like me, of torture and murder.
And I find myself asking, what sort of justice is possible now? After
ignoring our suffering when action might have saved our country, what does
the United Nations expect to do for Cambodia now? Placing elderly Khmer
Rouge leaders on trial will not bring back those who lost their lives in the
Killing Fields, or bring peace to the survivors. It will only stir more
anger and misery and hate. Pol Pot, the chief criminal, is long dead. So are
many of the others who killed and tortured at his command.
For Cambodians, this should be a time of cooperation, peace and prosperity.
Around 70 percent of Cambodia’s population is under 30 years old. They didn’t
experience the Killing Fields, and they face enough challenges in their
daily struggle to make ends meet. We who were lucky enough to survive once
looked forward to trials, but it has been 30 years — too much time has gone
by for us to want to waste our energy seeking revenge.
I don’t mean to say we should forget. We can’t. Let the horrors be
documented in books and films and let the truth be recorded for the entire
world to learn. But by pursuing this trial instead of working to improve the
lives of young Cambodians, the United Nations demonstrates it still has not
learned the lesson of the Killing Fields: Act before it’s too late.
Marshall Kim, the owner of a hair salon, is the founder of the
Cambodian-American Foundation for Education, a charitable organization.
AFTER TWO DAYS OF QUESTIONABLE WITNESS TESTIMONY, DUCH LECTURED HIS FORMER SUBORDINATE: “JUST TELL THE TRUTH!”
July 15, 2009
By Laura MacDonald, Member of the New York Bar and Consultant to the Center
for International Human Rights, Northwestern University School of Law
Prosecution and Civil Parties Challenge the Veracity of Mam Nai’s Testimony
Yesterday, judges and lawyers implied not so subtly with their words and
their tone that former Tuol Sleng prison (S-21) interrogator Mam Nai was not
telling the Trial Chamber the whole truth. While the rights to silence and
against self-incrimination have been the focus of much discussion and debate
in Mam’s presence, he was also reminded of his obligation to tell the truth
and told there were consequences for not doing so. Today, falsehoods were
not implied. Rather, they were demonstrated with hundreds of pages of
documents in Mam’s handwriting – and there was nothing subtle about it.
In brief, yesterday Mam testified that he interrogated prisoners and
elicited their confessions in a house near the S-21 complex by “playing
politics,” asking questions repeatedly, and giving prisoners time to
“reflect” on their mistakes. He said he did not use torture, was never
instructed to use torture, and did not know if others used torture. He
claimed that prisoners appeared to be in good health and that he was unaware
of their detention conditions or their fates after he wrote out their
confessions. He claimed not to have knowledge of major aspects of S-21, such
as its staff size and structure, because he pretended to be “blind and deaf”
to stay out of trouble and spent his time in his interrogation house alone.
Upon further examination, many of these assertions were successfully
discredited. While Mam has maintained that he did not personally torture the
prisoners he interrogated, at a February 2008 S-21 re-enactment he took part
in along with the ECCC investigating judges and the Accused Person, Kaing
Guek Eav (alias Duch), Mam stated that he had used “whips and electric wire”
in his interrogations. When reminded of this today, Mam exercised his right
to remain silent.
Yesterday, with the Chamber’s permission, international co-prosecutor
William Smith provided Mam with a 300-plus page notebook to review for today’s
discussion. Mam confirmed the document contained his writing and included
his dictations of several lectures Duch gave during staff study sessions.
While yesterday Mam said he was not aware if torture was used or if Duch
instructed that it be used, Smith described the notebook as “full of
references to torture” at S-21. Smith asked Mam if it was correct that he
was in fact aware of torture at S-21 because Mam and others were instructed
to carry it out as evidenced by the notebook. Mam replied that he was never
personally instructed to use torture and was not aware of what others
practiced.
Yesterday, Mam maintained that he had no knowledge regarding how his
interrogation unit was organized, how many people were in it, and what those
people practiced since the unit did not meet or discuss practices. Today,
Smith displayed an S-21 “work plan” and Mam confirmed the multi-page
document was written by his hand. Smith summarized the document which
apparently detailed the unit’s organization, the division of the workload,
and the responsibilities of various individuals. The work plan also set out
a specific regime of meetings, with some meetings occurring every three
days. When asked if Mam agreed that, at the time, he completely knew the
organization of the interrogation unit and was one of its main coordinators,
Mam replied “I do not agree with you” and then failed to provide a coherent
explanation.
Mam testified that he interrogated 20 to 30 Vietnamese combatants and one or
two Vietnamese civilian spies. Smith cited a statement from Duch that Mam
was responsible for interrogating all the Vietnamese prisoners at S-21
because of his language skills. Mam agreed. Smith then cited the S-21
prisoner list documenting 122 Vietnamese combatants and 144 Vietnamese
spies. When asked if he in fact interrogated all of them, Mam chose to
remain silent.
After completing this line of questioning, Smith asked Mam if he was
“minimizing [his] role” at S-21 to distance himself from the crimes. Mam
replied, “I have never had such an idea.”
For dramatic effect, international defense counsel Francois Roux stood to
point out that the prosecution had summoned this witness. Later, after the
defense finished questioning Mam, Roux thanked the prosecution for calling
the witness and said if the prosecution had any further witnesses like this
one they should not hesitate to call them. While Roux is a far better
defense counsel than his occasional stand-in, I am mainly glad he returned
this week from his personal leave because of entertaining comments like
these. Smith corrected that the Chamber had summoned the witness, to which
Roux replied that while the Chamber sends the summons, the prosecution had
included Mam on its list of proposed witnesses.
Roux’s comments came on the back of his examination of Mam who seemed
particularly cold and evasive. When asked what Mam thought of the Khmer
Rouge period now, Mam almost seemed to remember it fondly, stating that
conditions were tough at the time due to the war and insufficient food, but
Cambodia’s independence and self-mastery were positive aspects in line with
the Buddhist ideal of self-reliance. When asked if Mam knew how many people
died at S-21, he said, “I did not have a duty or position to know this
matter.” When asked how many people died during the Khmer Rouge period in
Cambodia, he simply stated that he did not know. Roux inquired if Mam had
any regrets and he stated he regretted the “small group of good people” that
were killed. Mam was not regretful for the “bad people.”
Duch Pleads with Mam Nai to Tell the Truth and Acknowledge His Crimes
After the parties finished questioning Mam, President Nil Nonn gave the
floor to Duch for his observations. Oddly, Duch explained to the Chamber
that he was closer to other men at S-21 and never really liked Mam all that
much. Then things got interesting. Duch said the 300-plus page notebook
mentioned earlier, detailing torture, reflected their “actual work.” With
passion and intense arm gestures, Duch told Mam not to be afraid of death
and to “just tell the truth!” Duch explained that he has acknowledged his
own crimes and told Mam, “I want you to do this same.”
Duch explained that over a million people perished at the hands of the
Communist Party of Kampuchea (CPK) and reminded Mam that they were both CPK
members. “We” are emotionally responsible for the crimes committed and
cannot blame the party line, Duch explained. Cambodia, the whole world, and
the civil parties are seeking the truth. Duch reminded Mam that the wife and
daughter of their former professor, Phung Ton, were there watching as civil
parties and wanted to know where the professor’s ashes are. “Please be ready
to tell the truth.”
Given that the husband and father of her clients was raised, civil party
lawyer Silke Studzinsky asked the Chamber to allow Mam an opportunity to
provide further information. Mam said he had none to provide, but expressed
his “regretfulness to the family of Professor Phung” and broke down in tears
for the first time.
Mam had been questioned earlier by Studzinsky about Phung and, although Mam
had recognized Phung’s photograph and acknowledged his handwriting on Phung’s
confession, Mam said he did not recall if he actually interrogated him and
had no knowledge of his fate. Later, under questioning from the defense, Mam
recalled interrogating Phung and said his confession was not forced: “he
spoke from his heart.”
When Studzinsky initially put Phung’s mug shot up on the screen, his wife
and daughter could be seen and heard sobbing loudly, despite the
bullet-proof glass separating them from the public gallery. These women are
among the few civil parties who attend the proceedings every day.
Joint Criminal Enterprise and Self-Incrimination Debated for Third Day in a
Row
First thing this morning, the national co-prosecutor reminded Mam of his
right against self-incrimination provided by Internal Rule 28, but
encouraged him to give full testimony even if it might be incriminating. He
stated that under ECCC law, only high leaders and those “most responsible”
can be prosecuted. Further, he assured the witness that, since it has been
over thirty years, the statute of limitations has lapsed so people who do
not fall into those two categories will not be prosecuted. I looked over at
Roux expecting him to object at any second, but surprisingly he did not.
Roux waited until it was his turn to question Mam and then provided a
rebuttal of sorts to the prosecution’s assurances. Roux reminded Mam of his
rights and obligations. He then advised Mam not to believe the prosecution
when they tell him he cannot be prosecuted, noting that during the lunch
break Roux read a submission from the prosecution that, as a party to the
Convention Against Torture, Cambodia is responsible for prosecuting all
those who have committed torture. Smith interrupted to raise the same
argument as yesterday – “delicate matters” regarding self-incrimination
should be raised in camera per Rule 28.
The President, clearly annoyed with Roux, stated that Roux had the floor to
question the witness, not to make such comments. Further, it is the Chamber’s
job to inform the witness of his rights and the defense should not advise
the witness because he has his own lawyer for that purpose. Roux correctly
pointed out that the prosecution made such comments first. In essence, the
President told him to start asking Mam questions or sit down.
After Mam left the courtroom for the day, Roux stood to “express [his]
continued concern” regarding self-incrimination. He said witnesses should be
appropriately warned of the risks they face given the potential application
of Joint Criminal Enterprise (JCE) liability in this trial and the
prosecution’s false assurances this morning.
The President accused the prosecution and the defense of “exploiting the
proceedings” for their own gains and said if they have observations they
should submit them in advance in writing per Rule 28. The President then
made a somewhat disturbing observation that if the parties keep bringing up
self-incrimination during the proceedings, witnesses will invoke silence
more often and it will be more difficult for the Chamber to get to the
truth.
Roux pressed on, stating that the prosecution made public comments in the
morning, so he was responding publicly. Roux said he welcomed an in camera
session to address the important question of JCE. Given that JCE extends
equal criminal liability to all actors in a common criminal plan, Roux has
argued repeatedly that perpetrator witnesses will face greater risk of
prosecution if the Chamber decides to apply JCE liability in the Duch trial.
For perhaps the fifth time this week, the prosecution repeated its view that
JCE has nothing to do with self-incrimination.
After a short recess, the Chamber noted that both the prosecution’s
assurances in the morning and the defense’s advice to the witness in the
afternoon were inappropriate. The President warned sternly that they should
not raise the issue again during the testimony of the next witness.
Mam Nai Was Assigned a Lawyer, But What Role Was That Lawyer Assigned?
After Mam stated on Monday that he did not have a lawyer but would like one,
the ECCC’s Witness and Expert Support Unit (WESU) assigned Kong Sam Onn to
be his lawyer. Kong sat next to the defense during Mam’s testimony and made
some objections and comments. This much is clear.
However, it is not clear what Kong’s mandate was or what role he was
supposed to play in the courtroom. When Kong objected to a question put to
Mam, the President “reminded” Kong that his assignment from WESU was to
ensure the witness did not incriminate himself and that the types of
questions asked were “none of [Kong’s] concern.” An ECCC spokesman explained
that Kong does not represent Mam in court, but rather is there to advise Mam
of his rights and answer his questions regarding issues of
self-incrimination. From the way Kong acted during the proceedings, it did
not seem like he was aware of this limited mandate. Moreover, the President
seemed to selectively enforce it. For example, yesterday, Kong objected to
documents being displayed only on the screen and requested that Mam be
provided with hard copies. This objection was practical and accepted by the
court; however, it has nothing to do with self-incrimination. In this
instance, Kong acted like a defense counsel and was treated like one.
An ECCC spokesman confirmed today that Mam consulted a lawyer regarding
self-incrimination during the investigation phase of the case. The details
regarding the timing, substance, and duration of this consultation are
unclear.
If, in fact, the advice given to Mam was only regarding self-incrimination,
I think this is insufficient. In my opinion, Mam is now a solid candidate
for investigation and legal sanctions for false testimony under Rules 35 and
36. Was his lawyer able to advise him on this during recesses when he was in
clear need of a warning? Given that the lawyer was only assigned to Mam on
Monday sometime after 4 p.m. and Mam started testifying Tuesday at 9 a.m.,
did the lawyer even have time to hear Mam’s accounts? If the lawyer has not
heard Mam’s full accounts, is he really in a position to know when Mam might
incriminate or perjure himself?
Him Huy’s Testimony Delayed to Allow Consultation with Counsel
Him Huy, a former S-21 guard, took the stand this afternoon. The President
explained his rights and obligations, particularly his right under Rule 28.9
to request counsel if an issue of self-incrimination arises. Him informed
the Chamber he was not prepared to speak and wanted to consult a lawyer.
While the details were unclear, Him explained that he met with Kong – also
Mam’s lawyer – “very briefly.” The President adjourned the proceedings early
to allow Him to meet with Kong.
While I understand that under Rule 28.9 a witness shall be provided with a
lawyer if the issue of self-incrimination arises in the course of the
proceedings, is there a reason WESU cannot inquire into whether a witness
requires counsel prior to the proceedings? After proceedings were stalled on
Monday so Mam could consult a newly-assigned lawyer, I would think someone
would have inquired into Him’s situation to avoid interrupting proceedings
twice in the same week for the same reason.
By Laura MacDonald, Member of the New York Bar and Consultant to the Center
for International Human Rights, Northwestern University School of Law
Prosecution and Civil Parties Challenge the Veracity of Mam Nai’s Testimony
Yesterday, judges and lawyers implied not so subtly with their words and
their tone that former Tuol Sleng prison (S-21) interrogator Mam Nai was not
telling the Trial Chamber the whole truth. While the rights to silence and
against self-incrimination have been the focus of much discussion and debate
in Mam’s presence, he was also reminded of his obligation to tell the truth
and told there were consequences for not doing so. Today, falsehoods were
not implied. Rather, they were demonstrated with hundreds of pages of
documents in Mam’s handwriting – and there was nothing subtle about it.
In brief, yesterday Mam testified that he interrogated prisoners and
elicited their confessions in a house near the S-21 complex by “playing
politics,” asking questions repeatedly, and giving prisoners time to
“reflect” on their mistakes. He said he did not use torture, was never
instructed to use torture, and did not know if others used torture. He
claimed that prisoners appeared to be in good health and that he was unaware
of their detention conditions or their fates after he wrote out their
confessions. He claimed not to have knowledge of major aspects of S-21, such
as its staff size and structure, because he pretended to be “blind and deaf”
to stay out of trouble and spent his time in his interrogation house alone.
Upon further examination, many of these assertions were successfully
discredited. While Mam has maintained that he did not personally torture the
prisoners he interrogated, at a February 2008 S-21 re-enactment he took part
in along with the ECCC investigating judges and the Accused Person, Kaing
Guek Eav (alias Duch), Mam stated that he had used “whips and electric wire”
in his interrogations. When reminded of this today, Mam exercised his right
to remain silent.
Yesterday, with the Chamber’s permission, international co-prosecutor
William Smith provided Mam with a 300-plus page notebook to review for today’s
discussion. Mam confirmed the document contained his writing and included
his dictations of several lectures Duch gave during staff study sessions.
While yesterday Mam said he was not aware if torture was used or if Duch
instructed that it be used, Smith described the notebook as “full of
references to torture” at S-21. Smith asked Mam if it was correct that he
was in fact aware of torture at S-21 because Mam and others were instructed
to carry it out as evidenced by the notebook. Mam replied that he was never
personally instructed to use torture and was not aware of what others
practiced.
Yesterday, Mam maintained that he had no knowledge regarding how his
interrogation unit was organized, how many people were in it, and what those
people practiced since the unit did not meet or discuss practices. Today,
Smith displayed an S-21 “work plan” and Mam confirmed the multi-page
document was written by his hand. Smith summarized the document which
apparently detailed the unit’s organization, the division of the workload,
and the responsibilities of various individuals. The work plan also set out
a specific regime of meetings, with some meetings occurring every three
days. When asked if Mam agreed that, at the time, he completely knew the
organization of the interrogation unit and was one of its main coordinators,
Mam replied “I do not agree with you” and then failed to provide a coherent
explanation.
Mam testified that he interrogated 20 to 30 Vietnamese combatants and one or
two Vietnamese civilian spies. Smith cited a statement from Duch that Mam
was responsible for interrogating all the Vietnamese prisoners at S-21
because of his language skills. Mam agreed. Smith then cited the S-21
prisoner list documenting 122 Vietnamese combatants and 144 Vietnamese
spies. When asked if he in fact interrogated all of them, Mam chose to
remain silent.
After completing this line of questioning, Smith asked Mam if he was
“minimizing [his] role” at S-21 to distance himself from the crimes. Mam
replied, “I have never had such an idea.”
For dramatic effect, international defense counsel Francois Roux stood to
point out that the prosecution had summoned this witness. Later, after the
defense finished questioning Mam, Roux thanked the prosecution for calling
the witness and said if the prosecution had any further witnesses like this
one they should not hesitate to call them. While Roux is a far better
defense counsel than his occasional stand-in, I am mainly glad he returned
this week from his personal leave because of entertaining comments like
these. Smith corrected that the Chamber had summoned the witness, to which
Roux replied that while the Chamber sends the summons, the prosecution had
included Mam on its list of proposed witnesses.
Roux’s comments came on the back of his examination of Mam who seemed
particularly cold and evasive. When asked what Mam thought of the Khmer
Rouge period now, Mam almost seemed to remember it fondly, stating that
conditions were tough at the time due to the war and insufficient food, but
Cambodia’s independence and self-mastery were positive aspects in line with
the Buddhist ideal of self-reliance. When asked if Mam knew how many people
died at S-21, he said, “I did not have a duty or position to know this
matter.” When asked how many people died during the Khmer Rouge period in
Cambodia, he simply stated that he did not know. Roux inquired if Mam had
any regrets and he stated he regretted the “small group of good people” that
were killed. Mam was not regretful for the “bad people.”
Duch Pleads with Mam Nai to Tell the Truth and Acknowledge His Crimes
After the parties finished questioning Mam, President Nil Nonn gave the
floor to Duch for his observations. Oddly, Duch explained to the Chamber
that he was closer to other men at S-21 and never really liked Mam all that
much. Then things got interesting. Duch said the 300-plus page notebook
mentioned earlier, detailing torture, reflected their “actual work.” With
passion and intense arm gestures, Duch told Mam not to be afraid of death
and to “just tell the truth!” Duch explained that he has acknowledged his
own crimes and told Mam, “I want you to do this same.”
Duch explained that over a million people perished at the hands of the
Communist Party of Kampuchea (CPK) and reminded Mam that they were both CPK
members. “We” are emotionally responsible for the crimes committed and
cannot blame the party line, Duch explained. Cambodia, the whole world, and
the civil parties are seeking the truth. Duch reminded Mam that the wife and
daughter of their former professor, Phung Ton, were there watching as civil
parties and wanted to know where the professor’s ashes are. “Please be ready
to tell the truth.”
Given that the husband and father of her clients was raised, civil party
lawyer Silke Studzinsky asked the Chamber to allow Mam an opportunity to
provide further information. Mam said he had none to provide, but expressed
his “regretfulness to the family of Professor Phung” and broke down in tears
for the first time.
Mam had been questioned earlier by Studzinsky about Phung and, although Mam
had recognized Phung’s photograph and acknowledged his handwriting on Phung’s
confession, Mam said he did not recall if he actually interrogated him and
had no knowledge of his fate. Later, under questioning from the defense, Mam
recalled interrogating Phung and said his confession was not forced: “he
spoke from his heart.”
When Studzinsky initially put Phung’s mug shot up on the screen, his wife
and daughter could be seen and heard sobbing loudly, despite the
bullet-proof glass separating them from the public gallery. These women are
among the few civil parties who attend the proceedings every day.
Joint Criminal Enterprise and Self-Incrimination Debated for Third Day in a
Row
First thing this morning, the national co-prosecutor reminded Mam of his
right against self-incrimination provided by Internal Rule 28, but
encouraged him to give full testimony even if it might be incriminating. He
stated that under ECCC law, only high leaders and those “most responsible”
can be prosecuted. Further, he assured the witness that, since it has been
over thirty years, the statute of limitations has lapsed so people who do
not fall into those two categories will not be prosecuted. I looked over at
Roux expecting him to object at any second, but surprisingly he did not.
Roux waited until it was his turn to question Mam and then provided a
rebuttal of sorts to the prosecution’s assurances. Roux reminded Mam of his
rights and obligations. He then advised Mam not to believe the prosecution
when they tell him he cannot be prosecuted, noting that during the lunch
break Roux read a submission from the prosecution that, as a party to the
Convention Against Torture, Cambodia is responsible for prosecuting all
those who have committed torture. Smith interrupted to raise the same
argument as yesterday – “delicate matters” regarding self-incrimination
should be raised in camera per Rule 28.
The President, clearly annoyed with Roux, stated that Roux had the floor to
question the witness, not to make such comments. Further, it is the Chamber’s
job to inform the witness of his rights and the defense should not advise
the witness because he has his own lawyer for that purpose. Roux correctly
pointed out that the prosecution made such comments first. In essence, the
President told him to start asking Mam questions or sit down.
After Mam left the courtroom for the day, Roux stood to “express [his]
continued concern” regarding self-incrimination. He said witnesses should be
appropriately warned of the risks they face given the potential application
of Joint Criminal Enterprise (JCE) liability in this trial and the
prosecution’s false assurances this morning.
The President accused the prosecution and the defense of “exploiting the
proceedings” for their own gains and said if they have observations they
should submit them in advance in writing per Rule 28. The President then
made a somewhat disturbing observation that if the parties keep bringing up
self-incrimination during the proceedings, witnesses will invoke silence
more often and it will be more difficult for the Chamber to get to the
truth.
Roux pressed on, stating that the prosecution made public comments in the
morning, so he was responding publicly. Roux said he welcomed an in camera
session to address the important question of JCE. Given that JCE extends
equal criminal liability to all actors in a common criminal plan, Roux has
argued repeatedly that perpetrator witnesses will face greater risk of
prosecution if the Chamber decides to apply JCE liability in the Duch trial.
For perhaps the fifth time this week, the prosecution repeated its view that
JCE has nothing to do with self-incrimination.
After a short recess, the Chamber noted that both the prosecution’s
assurances in the morning and the defense’s advice to the witness in the
afternoon were inappropriate. The President warned sternly that they should
not raise the issue again during the testimony of the next witness.
Mam Nai Was Assigned a Lawyer, But What Role Was That Lawyer Assigned?
After Mam stated on Monday that he did not have a lawyer but would like one,
the ECCC’s Witness and Expert Support Unit (WESU) assigned Kong Sam Onn to
be his lawyer. Kong sat next to the defense during Mam’s testimony and made
some objections and comments. This much is clear.
However, it is not clear what Kong’s mandate was or what role he was
supposed to play in the courtroom. When Kong objected to a question put to
Mam, the President “reminded” Kong that his assignment from WESU was to
ensure the witness did not incriminate himself and that the types of
questions asked were “none of [Kong’s] concern.” An ECCC spokesman explained
that Kong does not represent Mam in court, but rather is there to advise Mam
of his rights and answer his questions regarding issues of
self-incrimination. From the way Kong acted during the proceedings, it did
not seem like he was aware of this limited mandate. Moreover, the President
seemed to selectively enforce it. For example, yesterday, Kong objected to
documents being displayed only on the screen and requested that Mam be
provided with hard copies. This objection was practical and accepted by the
court; however, it has nothing to do with self-incrimination. In this
instance, Kong acted like a defense counsel and was treated like one.
An ECCC spokesman confirmed today that Mam consulted a lawyer regarding
self-incrimination during the investigation phase of the case. The details
regarding the timing, substance, and duration of this consultation are
unclear.
If, in fact, the advice given to Mam was only regarding self-incrimination,
I think this is insufficient. In my opinion, Mam is now a solid candidate
for investigation and legal sanctions for false testimony under Rules 35 and
36. Was his lawyer able to advise him on this during recesses when he was in
clear need of a warning? Given that the lawyer was only assigned to Mam on
Monday sometime after 4 p.m. and Mam started testifying Tuesday at 9 a.m.,
did the lawyer even have time to hear Mam’s accounts? If the lawyer has not
heard Mam’s full accounts, is he really in a position to know when Mam might
incriminate or perjure himself?
Him Huy’s Testimony Delayed to Allow Consultation with Counsel
Him Huy, a former S-21 guard, took the stand this afternoon. The President
explained his rights and obligations, particularly his right under Rule 28.9
to request counsel if an issue of self-incrimination arises. Him informed
the Chamber he was not prepared to speak and wanted to consult a lawyer.
While the details were unclear, Him explained that he met with Kong – also
Mam’s lawyer – “very briefly.” The President adjourned the proceedings early
to allow Him to meet with Kong.
While I understand that under Rule 28.9 a witness shall be provided with a
lawyer if the issue of self-incrimination arises in the course of the
proceedings, is there a reason WESU cannot inquire into whether a witness
requires counsel prior to the proceedings? After proceedings were stalled on
Monday so Mam could consult a newly-assigned lawyer, I would think someone
would have inquired into Him’s situation to avoid interrupting proceedings
twice in the same week for the same reason.
Torture and Death Recounted at Cambodian Trial
By SETH MYDANS
Published: July 14, 2009
PHNOM PENH, Cambodia — “Where were you tortured and when?”
Denis Gray/Associated Press
The remains of a Khmer Rouge killing field, outside of Phnom Penh. At one
prison, at least 14,000 people were tortured and sent to their deaths.
Mak Remissa/European Pressphoto Agency
Journalists took photographs of Mam Nai, the former deputy at a Khmer Rouge
prison, on a live video feed during the trial of the former head of the
prison, Kaing Guek Eav.
For the past two weeks, judges and lawyers in the trial of a Khmer Rouge
prison chief have probed for details about the suffering of victims of a
regime that caused the deaths of an estimated 1.7 million people between
1975 and 1979.
As personal stories of terror and brutality fill the courtroom for the first
time, even the defendant, Kaing Guek Eav, or Duch, has at times dropped his
hard mask and broken down in tears.
“I send my respects to the soul of your wife,” he told one witness, Bou
Meng, whose wife died in the prison and whom Duch (pronounced DOIK) had come
to know when he pulled him from a row of shackled prisoners and put him to
work as a painter.
Bou Meng put his face in his hands. Duch, his lips quivering, turned his
back on the courtroom, and both men wept.
Duch, 66, is the first of five central figures from the Khmer Rouge regime
to be tried here in a United Nations-backed tribunal. He faces charges of
crimes against humanity and war crimes as commandant of Tuol Sleng prison,
where at least 14,000 people were tortured and sent to their deaths.
Duch has taken responsibility for the torture and killings at the camp, and
he expressed “heartfelt sorrow” when he took the stand. But he has also
placed himself within a chain of command where disobedience often meant
death.
In vivid testimony, the court has heard a description of the ripping out of
toenails — and viewed the scarred toes of the victim — and has listened to
the sobs of a man who said he drank his own urine to survive.
It has heard from a man who said he crawled out alive from a pit in a
killing field, and from a woman who said she saw a child thrown into the air
and speared on a bayonet.
Most of this testimony is uncorroborated, and some has faced vigorous
challenges from the defense and skepticism from the judges. In particular,
the judges have called into question the testimony of witnesses who also are
designated as “civil parties” — an innovation in international tribunals
that allows alleged victims to join the case and to seek reparations from
any defendants who are convicted.
The testimony of these witnesses has not been vetted by prosecutors, and
most have arrived poorly prepared by overburdened lawyers. Their testimony
has often deviated from their sworn depositions, leaving the judges to
decide which version, if any, to credit.
Duch’s trial opened at the end of March; testimony has been heard not just
from the defendant himself, but also from expert witnesses. It has been
slowed by procedural delays and challenged by accusations of corruption and
of political manipulation by the Cambodian government. The tribunal, an
experimental hybrid of local and international legal systems, has been
criticized by human rights groups and some legal scholars who say it
compromises on international standards of justice.
Duch’s most intense display of emotion to date came in a video that was
shown publicly for the first time of his escorted visit in February 2008 to
Tuol Sleng prison, which is now a museum in Phnom Penh.
With survivors standing nearby, Duch, surrounded in the video by his lawyers
and security officers, began to read a statement of apology to the victims.
Suddenly he stopped, wiped his forearm across his eyes and let out a cry
that sounded like the bark of a seal, before turning away in tears.
But apart from such moments of emotion, Duch has maintained a confident,
didactic tone in the courtroom, prefacing his answers with phrases like
“based on my analysis and assumption” and “according to the surviving
documents.”
The five-person panel of Cambodian and international judges has often
addressed him more as a disinterested authority than as a defendant. He
seemed to have the final word in the courtroom on the authenticity of prison
documents and on the long, painstaking lists that he compiled of prisoners
sent to die in a killing field.
In challenging the story of one witness who said he had been a prisoner at
Tuol Sleng, Duch presented the curious defense that this could not be the
person in question because, according to Duch’s records, he had already had
him killed.
Using a similar argument, he questioned the account of a man who said he had
survived the camp, where he was imprisoned as an 8-year-old child; Duch
asserted confidently that he had made sure all children who entered the
prison with their parents were killed.
That witness, Norng Chan Phal, now 39, whose authenticity was later
confirmed by prison documents, presented a horrifying picture of loss that
could resonate with millions of those who survived the rule of the Khmer
Rouge.
He testified that he and four other children were left alone in the empty
prison when Duch and his staff fled the Vietnamese invasion that ended Khmer
Rouge rule in February 1979. Mr. Norng Chan Phal said he ran through empty
corridors among corpses and flies, searching for his mother, who had been
imprisoned with him.
“There was blood, and I was scared,” he said. “I kept running and crying for
my mother, searching for my mother.” Like almost everyone else who was
imprisoned there, she had been killed.
Duch has claimed that he had not visited the prison’s cells and torture
chambers, asserting that he was a coward, and that he did not participate
in, or even know in detail about, the abuse of the prisoners.
“I shut my eyes and ears,” he said. “I did not want to see the reality that
did not reconcile with my feelings. I did not allow myself to see or hear.”
This testimony, which seemed at odds with his hands-on administrative style,
was challenged Monday by a witness who said she had worked for him as a
medic and had lost several family members in Tuol Sleng.
The witness, Nam Man, 48, said she had seen Duch, standing under a coconut
tree, beat two of her uncles to death with a metal rod.
“Are you going to deny the facts and the truth that I have just told the
chamber?” she said, addressing him directly.
Duch said that he had found no records of her family in his files and that
no women had worked as medics there. He denied everything.
Asked later about this response, Ms. Nam Man said, “Now I have to find the
records to prove I am telling the truth.”
Published: July 14, 2009
PHNOM PENH, Cambodia — “Where were you tortured and when?”
Denis Gray/Associated Press
The remains of a Khmer Rouge killing field, outside of Phnom Penh. At one
prison, at least 14,000 people were tortured and sent to their deaths.
Mak Remissa/European Pressphoto Agency
Journalists took photographs of Mam Nai, the former deputy at a Khmer Rouge
prison, on a live video feed during the trial of the former head of the
prison, Kaing Guek Eav.
For the past two weeks, judges and lawyers in the trial of a Khmer Rouge
prison chief have probed for details about the suffering of victims of a
regime that caused the deaths of an estimated 1.7 million people between
1975 and 1979.
As personal stories of terror and brutality fill the courtroom for the first
time, even the defendant, Kaing Guek Eav, or Duch, has at times dropped his
hard mask and broken down in tears.
“I send my respects to the soul of your wife,” he told one witness, Bou
Meng, whose wife died in the prison and whom Duch (pronounced DOIK) had come
to know when he pulled him from a row of shackled prisoners and put him to
work as a painter.
Bou Meng put his face in his hands. Duch, his lips quivering, turned his
back on the courtroom, and both men wept.
Duch, 66, is the first of five central figures from the Khmer Rouge regime
to be tried here in a United Nations-backed tribunal. He faces charges of
crimes against humanity and war crimes as commandant of Tuol Sleng prison,
where at least 14,000 people were tortured and sent to their deaths.
Duch has taken responsibility for the torture and killings at the camp, and
he expressed “heartfelt sorrow” when he took the stand. But he has also
placed himself within a chain of command where disobedience often meant
death.
In vivid testimony, the court has heard a description of the ripping out of
toenails — and viewed the scarred toes of the victim — and has listened to
the sobs of a man who said he drank his own urine to survive.
It has heard from a man who said he crawled out alive from a pit in a
killing field, and from a woman who said she saw a child thrown into the air
and speared on a bayonet.
Most of this testimony is uncorroborated, and some has faced vigorous
challenges from the defense and skepticism from the judges. In particular,
the judges have called into question the testimony of witnesses who also are
designated as “civil parties” — an innovation in international tribunals
that allows alleged victims to join the case and to seek reparations from
any defendants who are convicted.
The testimony of these witnesses has not been vetted by prosecutors, and
most have arrived poorly prepared by overburdened lawyers. Their testimony
has often deviated from their sworn depositions, leaving the judges to
decide which version, if any, to credit.
Duch’s trial opened at the end of March; testimony has been heard not just
from the defendant himself, but also from expert witnesses. It has been
slowed by procedural delays and challenged by accusations of corruption and
of political manipulation by the Cambodian government. The tribunal, an
experimental hybrid of local and international legal systems, has been
criticized by human rights groups and some legal scholars who say it
compromises on international standards of justice.
Duch’s most intense display of emotion to date came in a video that was
shown publicly for the first time of his escorted visit in February 2008 to
Tuol Sleng prison, which is now a museum in Phnom Penh.
With survivors standing nearby, Duch, surrounded in the video by his lawyers
and security officers, began to read a statement of apology to the victims.
Suddenly he stopped, wiped his forearm across his eyes and let out a cry
that sounded like the bark of a seal, before turning away in tears.
But apart from such moments of emotion, Duch has maintained a confident,
didactic tone in the courtroom, prefacing his answers with phrases like
“based on my analysis and assumption” and “according to the surviving
documents.”
The five-person panel of Cambodian and international judges has often
addressed him more as a disinterested authority than as a defendant. He
seemed to have the final word in the courtroom on the authenticity of prison
documents and on the long, painstaking lists that he compiled of prisoners
sent to die in a killing field.
In challenging the story of one witness who said he had been a prisoner at
Tuol Sleng, Duch presented the curious defense that this could not be the
person in question because, according to Duch’s records, he had already had
him killed.
Using a similar argument, he questioned the account of a man who said he had
survived the camp, where he was imprisoned as an 8-year-old child; Duch
asserted confidently that he had made sure all children who entered the
prison with their parents were killed.
That witness, Norng Chan Phal, now 39, whose authenticity was later
confirmed by prison documents, presented a horrifying picture of loss that
could resonate with millions of those who survived the rule of the Khmer
Rouge.
He testified that he and four other children were left alone in the empty
prison when Duch and his staff fled the Vietnamese invasion that ended Khmer
Rouge rule in February 1979. Mr. Norng Chan Phal said he ran through empty
corridors among corpses and flies, searching for his mother, who had been
imprisoned with him.
“There was blood, and I was scared,” he said. “I kept running and crying for
my mother, searching for my mother.” Like almost everyone else who was
imprisoned there, she had been killed.
Duch has claimed that he had not visited the prison’s cells and torture
chambers, asserting that he was a coward, and that he did not participate
in, or even know in detail about, the abuse of the prisoners.
“I shut my eyes and ears,” he said. “I did not want to see the reality that
did not reconcile with my feelings. I did not allow myself to see or hear.”
This testimony, which seemed at odds with his hands-on administrative style,
was challenged Monday by a witness who said she had worked for him as a
medic and had lost several family members in Tuol Sleng.
The witness, Nam Man, 48, said she had seen Duch, standing under a coconut
tree, beat two of her uncles to death with a metal rod.
“Are you going to deny the facts and the truth that I have just told the
chamber?” she said, addressing him directly.
Duch said that he had found no records of her family in his files and that
no women had worked as medics there. He denied everything.
Asked later about this response, Ms. Nam Man said, “Now I have to find the
records to prove I am telling the truth.”
The International Dimensions of the Cambodian Tragedy
By Benny Widyono
In February of last year, 2009, the leaders of the Khmer Rouge, which killed
1.7 million of its own people during 1975 to 1979, were finally brought to
justice in a UN assisted court in Cambodia. Why did it take so long, more
than thirty years, for justice to come to Cambodia? The answer can be found
within the international political dynamics during the Cold War and later in
protracted negotiations between the Cambodian government and the UN for
setting up the court. During the cold war, and due to its geopolitical
location, Cambodia became a defenseless pawn in the struggle for hegemony in
Southeast Asia between the big powres, China, the USSR and the USA. The
result was that for twenty years prior to the arrival of the United Nations
peacekeeping operation operation, Cambodia was plunged into chaos, turmoil,
civil war, genocide and deep despair. That period can be divided into three
phases in which international actors played a major role: in phase one,
from mid the late ninety sixties to 1975, In the first phase, two events
facilitated the meteoric rise of the Khmer Rouge, an erstwhile obscure
communist movement in the jungles of Cambodia into a power which devastated
Cambodia. Piqued King Sihanouk’s neutral position in the cold war, and
suspecting eastern Cambodia of harboring Vietnamese forces , President
Richard Nixon of the US and his national security adviser, Henry Kissinger
bombed., Cambodia from 1969 to 1973, dropping more bombs on Cambodia's
populated heartland than were dropped on Japan during all of the Second
World War. Secondly, neutralist King Sihanouk was ousted by rightwing pro
American General Lon Nol. Enraged; Sihanouk fled to Beijing and embraced Pol
Pot, the leader of the Khmer Rouge, and with the help of Beijing, Pol Pot
quickly overthrew Lon Nol and established a brutal reign of terror from
April 17 1975 to January 7 1979 almost unequalled in modern history. This
terror regime brought unprecedented misery as the regime emptied cities,
torturing and executing the educated, imposing extreme policies that led to
starvation, disease and the death of 1.7 million Cambodians or about a third
of its entire popution. katlro. ,. pushering phase two of the Cambodian
tragedy, khherisrfrom April 1unequalled into history. us i Pol Pot’s the
Khmer Rouge under Pol Pot o y and . An osbcure communist power, rose
pmunnisC grew enormously in power and took over Cambodia from the rightwing
Lon Nol, Thus, what Nixon and Kissinger began, with the help of Sihanouk,
Pol Pot completed On January, 1979, the Vietnamese army ousted the genocidal
Khmer Rouge and sent its leaders and followers to the border of Thailand. A
New Government, named the People’s Republic of Kampuchea, was established
gaining de factor power almost all of Cambodia, Unfortunately, the battle
now shifted to New York, where the General Assembly, spearheaded by the US
and China, adopted resolution after resolution for 11 years, 1979 to 1991,
recognizing the brutal Khmer Rouge regime, as the legitimate government of
Cambodia while rejecting , the People’s Republic of Cambodia. This is the
third phase of the Cambodian tragedy as the sanctions were imposed on the
country banning all aid whereas the Khmer Rouge in the jungle, now bolstered
by two anti communist factoons, were resuscitated by Chinese and western
aid, thereby prolongin the suffering of te Cambodian people for 11 years.
p, ecunyb, Gkhmer rhetrty country the de facto government established
after the Vietnamese actually put an end to the killing by ousting the Khmer
Rouge regime, a calculation that allowed more chaos to ensue. Even though
the new Cambodian regime agreed to put the surviving Khmer Rouge leaders on
trial, political wrangling over sovereignty and international justice and
funding difficulties delayed the process. On February 17, 2009, some 30
years after the end of the brutal Khmer Rouge regime, and 12 years after
the idea of a special court was adopted, the UN-installed Extraordinary
Chambers in Courts of Cambodia began a trial of major perpetrators of the
Cambodian massacre.
rtwoese, tselate1960 to .es, In phase one rds., ioerUniteda j, mgee t
Author and former UN official Benny Widyono argues that the trial must
demonstrate forthright recognition that Cambodia was long denied justice by
major powers. It is to be hoped that the long-awaited trial will begin the
process of healing and national reconciliation that requires a full
accounting of what went on, both inside the country and outside.
In fact, the problem with the United Nations-backed trial of the remaining
Khmer Rouge leaders, which has just begun in Phom Penh, is that it is
dealing only with the Khmer Rouge killers and not with their collaborators.
There were three stages of Cambodia's holocaust. Pol Pot's genocide was but
one of them, yet only it has a place in the official memory. It is highly
unlikely Pot Pot would have come to power had Kissinger will not be in the
dock in Phom Penh. He is advising President Obama on geo-politics. Neither
will Margaret Thatcher, nor a number of her comfortably retired senior
ministers and officials who, in secretly supporting the Khmer Rouge after
the Vietnamese had expelled them, contributed directly to the third stage of
Cambodia's holocaust. In 1979, the US and British governments imposed a
devastating embargo on stricken Cambodia because its liberators, Vietnam,
had come from the wrong side of the cold war. Few Foreign Office campaigns
have been as cynical or as brutal. At the UN, the British demanded that the
now defunct Pol Pot regime retain the "right" to represent its victims at
the UN and voted with Pol Pot in the agencies of the UN, including the World
Health Organisation, thereby preventing it from working inside Cambodia.
To disguise this outrage, Britain, the US and China, Pol Pot's principal
backer, invented a "non communist" coalition in exile that was, in fact,
dominated by the Khmer Rouge. In Thailand, the CIA and Defence Intelligence
Agency formed direct links with the Khmer Rouge. In 1983, the Thatcher
government sent the SAS to train the "coalition" in landmine technology - in
a country more seeded with mines than anywhere on earth except Afghanistan.
"I confirm," Thatcher wrote to opposition leader Neil Kinnock, "that there
is no British government involvement of any kind in training, equipping or
co-operating with Khmer Rouge forces or those allied to them." The lie was
breathtaking. On June 25, 1991, the Major government was forced to admit to
parliament that the SAS had been secretly training the "coalition". Unless
international justice is a farce, those who sided with Pol Pot's mass
murderers ought to be summoned to the court in Phnom Penh: at the very least
their names read into infamy's register.
In Cambodia, Cold War diplomatic maneuvers swept Khmer Rouge atrocities
under the carpet. On 7 January, 1979, Vietnamese Army and Cambodian
defectors from the Khmer Rouge ended the Khmer Rouge rule. The People’s
Republic of Kampuchea, which soon gained control over 90 percent of the
country, was established.
In a great irony, as the battle shifted to New York, the United Nations in a
resolution spearheaded by the US and China, awarded Cambodia’s seat in the
General Assembly to the exiled Khmer Rouge terror regime; the actual
government in Phnom Penh that ended the killing was turned into an
international pariah. This travesty continued for 11 more years thereby
prolonging the suffering of the Cambodian people. Throughout the 1980s,
bringing the Khmer Rouge criminals to court was far from the minds of the
powers that be. The PRK did try Khmer Rouge leaders Pol Pot and Ieng Sary,
but few in the outside world paid attention.
Finally, the international aspects of the Cambodian problem were settled
with the elections sponsored by the United Nations in May 1993 and the
establishment of a new government, a new Royal government of Cambodia headed
by two prime ministers Prince Ranariddh and Hun Sen. In June 1997, following
a strong suggestion by UN special representative on Human Rights in Cambodia
Thomas Hammarberg, the co-premiers requested UN assistance to bring the
Khmer Rouge to trial. A UN expert group recommended establishment of a
hybrid tribunal such as that for Sierra Leone. However, the Cambodian
government, which after violent clashes in July 1997, was headed by one
prime minister, Hun Sen, who quickly rejected the idea and insisted on a
Cambodian tribunal with international assistance.
One can only surmise that the government feared that some UN personalities,
donor and human-right organizations would broaden the scope of the tribunal
to favor adding more defendants, including senior ex-Khmer Rouge officials
now serving in the government, while the Cambodian side insists that the
trials should be limited to the five surviving top leaders. The Cambodian
concern is on principle, not just numbers, as they fear that spreading the
net would result in more instability. This proved to be true when most
recently, in 2008, the UN Representative on Human Rights Yash Ghai went so
far as stating in his March 2008 report to the UN Human Rights Council that
“The real test will be if a suspect in or close to the Government is
investigated and brought before the ECCC [Extraordinary Chambers in Courts
of Cambodia].”
Control of the tribunal was the main issue over which the Cambodian
government and the United Nations argued at every twist and turn. It was no
surprise that the negotiations were protracted and acrimonious, even
suspended in February 2002, as the UN walked out. The government's
foot-dragging may have also contributed to improved relations between Hun
Sen and China which, as erstwhile supporter of the Khmer Rouge, could be
embarrassed by an international tribunal. In June 2003, the UN and the
Cambodian government signed an agreement that established the Extraordinary
Chambers in the Courts of Cambodia. It started functioning in 2006.
Since then, achievements of the tribunal include the arrest of top surviving
leaders and the participation of highly regarded international judges and
prosecutors. The addition of a unit in which victims can participate in the
process is widely acclaimed. By July 2008 it was announced that the first
trial would commence in September. In the end, it took four more months.
Proponents argue that the tribunal can be a tool to improve the judicial
system in a transitional state ravaged by war and political upheaval, as
well as political interference and control.
On the negative side, the lack of an independent and trained Cambodian
judiciary, continuing yet unspecific accusations of corruption, and
budgetary woes serve to mar the progress, and in practice protracted
negotiations continued during implementation of the agreement. As of
February 2009, the international prosecutor continued to argue that five
more defendants should be tried, while the Cambodians insisted five is
enough,
As the tribunal is financed from voluntary contributions, individual donors
influence the process. Donors were concerned when accusations of corruption
surfaced. It's reported that the US, which has not contributed to the
tribunal, and perhaps others as well, favor a court with a top international
personality overseeing the Cambodian director of administration and the UN
deputy.
To placate the donors, new UN appointments were made in June, including
David Tolbert, an ex-Yugoslavia tribunal prosecutor was named special expert
to the UN secretary-general, with particular mandate over the budget. Knut
Rosandhaug, veteran from the UN Kosovo mission took over from Michelle Lee
as coordinator of UN assistance and deputy director of the tribunal
administration; UN sources reportedly considered Lee, a Chinese national, as
too lenient on the Cambodians. It remains to be seen how the new balance of
power will play out in the court's day-to-day operations. At the end of
2008, the UN conducted an investigation of corruption in the tribunal, but
the findings have not been published.
The trial, though late, still heralds a long-awaited process of healing and
national reconciliation that require full accounting of what went on. A
successful conclusion of the trials would include recognition of denial of
justice imposed on Cambodia during the 1980s, a leftover obligation to be
borne by donor countries. Such a successful conclusion for the tribunal
would put an end to a dark chapter of history and exorcise the curse of the
Khmer Rouge hanging over Cambodia.
Benny Widyono is author of “Dancing in Shadows: Sihanouk, the Khmer Rouge
and the United Nations in Cambodia,” published by Rowman Littlefield in
2008.
In February of last year, 2009, the leaders of the Khmer Rouge, which killed
1.7 million of its own people during 1975 to 1979, were finally brought to
justice in a UN assisted court in Cambodia. Why did it take so long, more
than thirty years, for justice to come to Cambodia? The answer can be found
within the international political dynamics during the Cold War and later in
protracted negotiations between the Cambodian government and the UN for
setting up the court. During the cold war, and due to its geopolitical
location, Cambodia became a defenseless pawn in the struggle for hegemony in
Southeast Asia between the big powres, China, the USSR and the USA. The
result was that for twenty years prior to the arrival of the United Nations
peacekeeping operation operation, Cambodia was plunged into chaos, turmoil,
civil war, genocide and deep despair. That period can be divided into three
phases in which international actors played a major role: in phase one,
from mid the late ninety sixties to 1975, In the first phase, two events
facilitated the meteoric rise of the Khmer Rouge, an erstwhile obscure
communist movement in the jungles of Cambodia into a power which devastated
Cambodia. Piqued King Sihanouk’s neutral position in the cold war, and
suspecting eastern Cambodia of harboring Vietnamese forces , President
Richard Nixon of the US and his national security adviser, Henry Kissinger
bombed., Cambodia from 1969 to 1973, dropping more bombs on Cambodia's
populated heartland than were dropped on Japan during all of the Second
World War. Secondly, neutralist King Sihanouk was ousted by rightwing pro
American General Lon Nol. Enraged; Sihanouk fled to Beijing and embraced Pol
Pot, the leader of the Khmer Rouge, and with the help of Beijing, Pol Pot
quickly overthrew Lon Nol and established a brutal reign of terror from
April 17 1975 to January 7 1979 almost unequalled in modern history. This
terror regime brought unprecedented misery as the regime emptied cities,
torturing and executing the educated, imposing extreme policies that led to
starvation, disease and the death of 1.7 million Cambodians or about a third
of its entire popution. katlro. ,. pushering phase two of the Cambodian
tragedy, khherisrfrom April 1unequalled into history. us i Pol Pot’s the
Khmer Rouge under Pol Pot o y and . An osbcure communist power, rose
pmunnisC grew enormously in power and took over Cambodia from the rightwing
Lon Nol, Thus, what Nixon and Kissinger began, with the help of Sihanouk,
Pol Pot completed On January, 1979, the Vietnamese army ousted the genocidal
Khmer Rouge and sent its leaders and followers to the border of Thailand. A
New Government, named the People’s Republic of Kampuchea, was established
gaining de factor power almost all of Cambodia, Unfortunately, the battle
now shifted to New York, where the General Assembly, spearheaded by the US
and China, adopted resolution after resolution for 11 years, 1979 to 1991,
recognizing the brutal Khmer Rouge regime, as the legitimate government of
Cambodia while rejecting , the People’s Republic of Cambodia. This is the
third phase of the Cambodian tragedy as the sanctions were imposed on the
country banning all aid whereas the Khmer Rouge in the jungle, now bolstered
by two anti communist factoons, were resuscitated by Chinese and western
aid, thereby prolongin the suffering of te Cambodian people for 11 years.
p, ecunyb, Gkhmer rhetrty country the de facto government established
after the Vietnamese actually put an end to the killing by ousting the Khmer
Rouge regime, a calculation that allowed more chaos to ensue. Even though
the new Cambodian regime agreed to put the surviving Khmer Rouge leaders on
trial, political wrangling over sovereignty and international justice and
funding difficulties delayed the process. On February 17, 2009, some 30
years after the end of the brutal Khmer Rouge regime, and 12 years after
the idea of a special court was adopted, the UN-installed Extraordinary
Chambers in Courts of Cambodia began a trial of major perpetrators of the
Cambodian massacre.
rtwoese, tselate1960 to .es, In phase one rds., ioerUniteda j, mgee t
Author and former UN official Benny Widyono argues that the trial must
demonstrate forthright recognition that Cambodia was long denied justice by
major powers. It is to be hoped that the long-awaited trial will begin the
process of healing and national reconciliation that requires a full
accounting of what went on, both inside the country and outside.
In fact, the problem with the United Nations-backed trial of the remaining
Khmer Rouge leaders, which has just begun in Phom Penh, is that it is
dealing only with the Khmer Rouge killers and not with their collaborators.
There were three stages of Cambodia's holocaust. Pol Pot's genocide was but
one of them, yet only it has a place in the official memory. It is highly
unlikely Pot Pot would have come to power had Kissinger will not be in the
dock in Phom Penh. He is advising President Obama on geo-politics. Neither
will Margaret Thatcher, nor a number of her comfortably retired senior
ministers and officials who, in secretly supporting the Khmer Rouge after
the Vietnamese had expelled them, contributed directly to the third stage of
Cambodia's holocaust. In 1979, the US and British governments imposed a
devastating embargo on stricken Cambodia because its liberators, Vietnam,
had come from the wrong side of the cold war. Few Foreign Office campaigns
have been as cynical or as brutal. At the UN, the British demanded that the
now defunct Pol Pot regime retain the "right" to represent its victims at
the UN and voted with Pol Pot in the agencies of the UN, including the World
Health Organisation, thereby preventing it from working inside Cambodia.
To disguise this outrage, Britain, the US and China, Pol Pot's principal
backer, invented a "non communist" coalition in exile that was, in fact,
dominated by the Khmer Rouge. In Thailand, the CIA and Defence Intelligence
Agency formed direct links with the Khmer Rouge. In 1983, the Thatcher
government sent the SAS to train the "coalition" in landmine technology - in
a country more seeded with mines than anywhere on earth except Afghanistan.
"I confirm," Thatcher wrote to opposition leader Neil Kinnock, "that there
is no British government involvement of any kind in training, equipping or
co-operating with Khmer Rouge forces or those allied to them." The lie was
breathtaking. On June 25, 1991, the Major government was forced to admit to
parliament that the SAS had been secretly training the "coalition". Unless
international justice is a farce, those who sided with Pol Pot's mass
murderers ought to be summoned to the court in Phnom Penh: at the very least
their names read into infamy's register.
In Cambodia, Cold War diplomatic maneuvers swept Khmer Rouge atrocities
under the carpet. On 7 January, 1979, Vietnamese Army and Cambodian
defectors from the Khmer Rouge ended the Khmer Rouge rule. The People’s
Republic of Kampuchea, which soon gained control over 90 percent of the
country, was established.
In a great irony, as the battle shifted to New York, the United Nations in a
resolution spearheaded by the US and China, awarded Cambodia’s seat in the
General Assembly to the exiled Khmer Rouge terror regime; the actual
government in Phnom Penh that ended the killing was turned into an
international pariah. This travesty continued for 11 more years thereby
prolonging the suffering of the Cambodian people. Throughout the 1980s,
bringing the Khmer Rouge criminals to court was far from the minds of the
powers that be. The PRK did try Khmer Rouge leaders Pol Pot and Ieng Sary,
but few in the outside world paid attention.
Finally, the international aspects of the Cambodian problem were settled
with the elections sponsored by the United Nations in May 1993 and the
establishment of a new government, a new Royal government of Cambodia headed
by two prime ministers Prince Ranariddh and Hun Sen. In June 1997, following
a strong suggestion by UN special representative on Human Rights in Cambodia
Thomas Hammarberg, the co-premiers requested UN assistance to bring the
Khmer Rouge to trial. A UN expert group recommended establishment of a
hybrid tribunal such as that for Sierra Leone. However, the Cambodian
government, which after violent clashes in July 1997, was headed by one
prime minister, Hun Sen, who quickly rejected the idea and insisted on a
Cambodian tribunal with international assistance.
One can only surmise that the government feared that some UN personalities,
donor and human-right organizations would broaden the scope of the tribunal
to favor adding more defendants, including senior ex-Khmer Rouge officials
now serving in the government, while the Cambodian side insists that the
trials should be limited to the five surviving top leaders. The Cambodian
concern is on principle, not just numbers, as they fear that spreading the
net would result in more instability. This proved to be true when most
recently, in 2008, the UN Representative on Human Rights Yash Ghai went so
far as stating in his March 2008 report to the UN Human Rights Council that
“The real test will be if a suspect in or close to the Government is
investigated and brought before the ECCC [Extraordinary Chambers in Courts
of Cambodia].”
Control of the tribunal was the main issue over which the Cambodian
government and the United Nations argued at every twist and turn. It was no
surprise that the negotiations were protracted and acrimonious, even
suspended in February 2002, as the UN walked out. The government's
foot-dragging may have also contributed to improved relations between Hun
Sen and China which, as erstwhile supporter of the Khmer Rouge, could be
embarrassed by an international tribunal. In June 2003, the UN and the
Cambodian government signed an agreement that established the Extraordinary
Chambers in the Courts of Cambodia. It started functioning in 2006.
Since then, achievements of the tribunal include the arrest of top surviving
leaders and the participation of highly regarded international judges and
prosecutors. The addition of a unit in which victims can participate in the
process is widely acclaimed. By July 2008 it was announced that the first
trial would commence in September. In the end, it took four more months.
Proponents argue that the tribunal can be a tool to improve the judicial
system in a transitional state ravaged by war and political upheaval, as
well as political interference and control.
On the negative side, the lack of an independent and trained Cambodian
judiciary, continuing yet unspecific accusations of corruption, and
budgetary woes serve to mar the progress, and in practice protracted
negotiations continued during implementation of the agreement. As of
February 2009, the international prosecutor continued to argue that five
more defendants should be tried, while the Cambodians insisted five is
enough,
As the tribunal is financed from voluntary contributions, individual donors
influence the process. Donors were concerned when accusations of corruption
surfaced. It's reported that the US, which has not contributed to the
tribunal, and perhaps others as well, favor a court with a top international
personality overseeing the Cambodian director of administration and the UN
deputy.
To placate the donors, new UN appointments were made in June, including
David Tolbert, an ex-Yugoslavia tribunal prosecutor was named special expert
to the UN secretary-general, with particular mandate over the budget. Knut
Rosandhaug, veteran from the UN Kosovo mission took over from Michelle Lee
as coordinator of UN assistance and deputy director of the tribunal
administration; UN sources reportedly considered Lee, a Chinese national, as
too lenient on the Cambodians. It remains to be seen how the new balance of
power will play out in the court's day-to-day operations. At the end of
2008, the UN conducted an investigation of corruption in the tribunal, but
the findings have not been published.
The trial, though late, still heralds a long-awaited process of healing and
national reconciliation that require full accounting of what went on. A
successful conclusion of the trials would include recognition of denial of
justice imposed on Cambodia during the 1980s, a leftover obligation to be
borne by donor countries. Such a successful conclusion for the tribunal
would put an end to a dark chapter of history and exorcise the curse of the
Khmer Rouge hanging over Cambodia.
Benny Widyono is author of “Dancing in Shadows: Sihanouk, the Khmer Rouge
and the United Nations in Cambodia,” published by Rowman Littlefield in
2008.
FORMER S-21 INTERROGATOR SPENT YEARS ELICITING PRISONER CONFESSIONS BUT APPEARS UNWILLING TO CONFESS TO ANYTHING HIMSELF
July 14, 2009
By Laura MacDonald, Member of the New York Bar and Consultant to the Center
for International Human Rights, Northwestern University School of Law
Preliminary Issues: Joint Criminal Enterprise, Self-Incrimination, and
Seating Assignments
Yesterday, the Trial Chamber adjourned the proceedings early after
discovering that testifying witness Mam Nai, a former interrogator at Tuol
Sleng prison (S-21), was not represented by legal counsel and desired
counsel but could not afford it. This disturbing discovery came about when
international defense counsel Francois Roux raised his concern that the
witness was at great risk of self-incrimination given the prosecution’s
recent submission to the Chamber that Joint Criminal Enterprise (JCE) be
applied as a mode of liability in the trial of Kaing Guek Eav (alias Duch).
JCE is a controversial form of criminal liability that extends equal legal
responsibility to all actors in a common criminal plan. The prosecution
previously represented it would not prosecute Mam at the ECCC, but this does
not guarantee against prosecution in national courts, which co-prosecutor
William Smith called an “extremely remote possibility.” The Chamber
announced recently it will rule on the application of JCE at the same time
it rules on the merits of Duch’s case; thus, it is still an open issue.
Given that JCE is a possibility and Mam was Duch’s subordinate, Roux argued
that the Chamber should ensure Mam has an adequate understanding of his
right to remain silent and right against self-incrimination. Realizing Mam
was unrepresented, the Chamber contacted unspecified ECCC units to get a
lawyer for Mam and requested he return today.
Yesterday, it appeared as though Roux truly had Mam’s interest at heart. In
comments this morning, it was clear that his true allegiance was to his
client and Roux was using Mam to illustrate for the judges why JCE should
not be applied to Duch. Smith had argued that JCE did not change the
landscape for Mam with regard to self-incrimination as the prosecution could
have used aiding and abetting liability, for example, to reach him
previously had it so intended. Roux used these words against Smith stating
that this proved JCE was “not necessary” and asked him to withdraw the JCE
application.
Smith accused Roux of violating the Internal Rules and unnecessarily
alarming the public and the witness yesterday by raising the
self-incrimination issue publicly at the last minute. Under Rule 28.8, if a
party is aware that witness testimony may raise a self-incrimination issue,
that party is required to request an in camera hearing and advise the judges
in advance of the testimony.
The judges did not address the war of words over JCE. However, at the outset
of Mam’s testimony, the President did ask the witness a series of questions
to ensure Mam was represented and informed. The President confirmed with Nam
that he had a lawyer present in the courtroom, he had consulted with that
lawyer, and he was now able to answer questions. The President also
announced the new lawyer, explaining the Witness and Expert Support Unit and
“other ECCC units” made the decision to seek this lawyer’s assistance. As
reported yesterday, victims, experts, civil parties, and accused persons
seem to be well-supported by the court’s various units, while Mam, a witness
implicated in the trial, appears to have fallen through the cracks.
On a separate issue, Roux raised his concern this morning that Mam’s
newly-appointed counsel was seated on the defense side of the courtroom.
Roux argued this was akin to announcing Mam was an accused person and
suggested the lawyer be seated next to Mam instead. In an unusual step, one
of the civil party lawyers stood to announce her agreement with the defense.
For the prosecution, Smith argued that Roux had unnecessarily created a
negative impression of the seating assignment with his remarks.
The President briefly addressed the issue of the new lawyer’s seating
assignment. The President explained that the lawyer’s proximity to the
defense was merely coincidental as that seat allowed the lawyer space to
work and a close view of his client.
From Professor to Interrogator
After hearing Duch state time and again that his subordinates carried out
the dirty work at S-21 while he worked with pen and paper in his removed
office, I was anticipating that Mam would provide groundbreaking testimony
detailing the operations at S-21 and demonstrating that Duch had direct
knowledge of atrocities and in fact ordered that such activities take place.
I was completely wrong. Rather, under several hours of examination from four
of five Chamber judges, 76 year old Mam painted an even rosier picture of
S-21 than Duch, maintaining that he was not aware of any torture at S-21 and
prisoners appeared in good health.
Mam is a well-educated man. He speaks Khmer fluently and has a decent handle
on English, French, and Vietnamese. He graduated at the top of his class
from college before becoming a professor. After being arrested and
imprisoned, Mam and Duch shared a cell for almost two years before being
released by the Lon Nol regime. After a rally in 1973 during which Lon Nol
soldiers opened fire, Mam fled into the jungle where he studied
revolutionary ideas with Duch and others. Duch later recruited Mam to work
with him at the M-13 security office, which Duch chaired. At first, Mam was
not given important tasks at M-13, but after a while he learned how to
interrogate “people who hated the revolution” by observing Duch in action.
Perhaps a month after the Khmer Rouge “liberated” Phnom Penh in April 1975,
Mam left M-13 with Duch to join the newly-established S-21 prison. At S-21,
Mam was assigned to interrogate prisoners deemed “not important,” mostly
combatants and low-ranking cadre. He was also assigned to interrogate
Vietnamese soldiers and a few Vietnamese civilians arrested on the
battlefield given his limited Vietnamese language skills. Detainees were
brought handcuffed and blindfolded to an interrogation house just outside
the S-21 compound where Mam worked alone. Guards waited outside the house
during interrogation but did not dare interfere.
Throughout the day, Mam was pressed on the interrogation methods he used and
the instructions he received regarding interrogation. He said he received no
instructions in general; however, on one occasion Duch told him to get
information on the battlefields from Vietnamese soldiers within a month’s
time. Interrogators were not allowed to discuss their techniques. As for Mam’s
technique, he simply “played politics” with the detainees asking them
questions repeatedly until they confessed. Sometimes, he would send
detainees to “reflect” for a few days in their cell before calling them
back. Mam claimed that eliciting detailed biographies and confessions from
detainees was “not difficult at all” and no physical coercion was necessary.
When asked what happened if he received no response, Mam said he would
report that to Duch. Mam could not recall what Duch would order, if
anything, in such instances. Mam wrote out the confessions by hand.
While Duch and other witnesses have stated that biographies and photographs
were taken upon arrival at S-21, Mam said detainees came to interrogation
without any documents, so he started from scratch. When asked if he knew of
S-21’s policy that everyone detained was guilty and everyone was killed, he
said he did not know about this. Later, however, he stated that all
Cambodian detainees at S-21 had committed some offense whether “minor or
serious” against the revolution. With regard to Vietnamese prisoners, he
considered all of them guilty of invading Cambodia. Mam believed the
confessions he elicited were partially true, but that the “quality of the
truth was very minimal.”
“I cannot recall anything related to this matter.”
Variations on the above sentence seemed to be Mam’s mantra throughout the
day. In response to perhaps forty-percent of the judges’ questions, Mam
responded that he did not know, that such information was beyond his
knowledge, or that he could not recall. Repeatedly, Mam emphasized that he
was “just a plain and simple interrogating cadre” and was not allowed to
“wander freely” at S-21. He said he focused solely on his tasks and
pretended he was “blind and deaf.” He said that if he had asked questions or
“poked around,” he would not be alive today. Mam could not describe how S-21
was organized, how many people worked there, where his prisoners were from,
what techniques other interrogators used, how prisoners were detained, or
what happened after they confessed. He could not recall ever hearing screams
or interrogating women.
Despite the fact that his testimony differed drastically from any facts that
have been presented, his justifications and limited understanding seemed
somewhat plausible for a while. However, I lost total confidence in his
testimony when he stated that from his observations prisoners were “neither
skinny nor pale” and appeared to be in “normal physical condition.” By all
accounts, S-21 prisoners were some combination of starving, dehydrated,
wounded, sick, and weak.
When Judge Cartwright started questioning Mam, it was clear she had little
confidence in his testimony. She spent a solid ten minutes establishing his
education and high marks before asking him if it was fair to say he was
“well-educated,” “clever,” and probably one of the most intelligent men at
S-21. She went on to examine several inconsistencies between Mam’s
statements to the co-investigating judges and his current testimony. Judge
Cartwright’s line of questioning seemed to suggest great skepticism that
this very intelligent man could lack such basic knowledge of his immediate
surroundings. After receiving a few unsatisfactory responses to his
questions, Judge Lavergne asked Mam, “Do you have problems with your
memory?” Mam explained that he recently became unconscious after taking a
fall in his home and has had trouble with his memory ever since. In light of
Mam’s light testimony, Judge Lavergne summarized Duch’s dark accounts of
conditions and operations at M-13 and asked Mam somewhat sarcastically if he
stayed at the same place as Duch. Mam explained that conditions throughout
Cambodia were miserable at the time, but confirmed that prisoners had less
food and worse clothing than the average person.
After a day of silence, Mam’s lawyer stood to make a practical request that
the judges quickly accepted. He asked that a whole document be displayed,
instead of only one portion thereof, in order to allow Mam to better
understand and answer a set of questions. In subsequent comments, however,
Mam’s lawyer displayed a lack of understanding about the proceedings and how
matters are handled in the courtroom. He said that the Chamber was putting
repetitious and leading questions to the witness, that he was concerned
about what topics the parties might raise, and asked that the Chamber
adjourn to review what types of questions are appropriate. He stated that in
this adversarial system, a particular format should be followed.
The President appeared to try his best not to be condescending while he
explained that the Chamber was following Cambodian procedures which are
based on the French civil law system. He explained that the Chamber is
allowed to put exhaustive questions to the witness before each party is
given an opportunity to question based on the time allocation and topic list
already identified by the Chamber.
Perhaps in response to the Chamber’s apparent frustration with Mam’s
responses, Roux then took the opportunity to raise the witness’s Rule 28
rights again. Roux said it is good for the witness to be reminded of his
right to remain silent in order not to incriminate himself. The President
responded that the Chamber is well-advised and handling the proceedings
appropriately. Civil party group 1 lawyer Alain Werner then stated that if
the witness is to be reminded of his rights, perhaps he should also be
reminded of his obligations under Rule 36. Under 36.1, the Chamber may
remind the witness of his duty to tell the truth and explain the
consequences of failure to do so. Under 36.2, if the Chamber has grounds to
believe false testimony was knowingly and willfully provided, it can, among
other options, refer the matter to Cambodian and UN authorities or
investigate the matter further.
Tomorrow, Mam will take the stand again to be examined by the prosecution,
civil party lawyers, and defense.
By Laura MacDonald, Member of the New York Bar and Consultant to the Center
for International Human Rights, Northwestern University School of Law
Preliminary Issues: Joint Criminal Enterprise, Self-Incrimination, and
Seating Assignments
Yesterday, the Trial Chamber adjourned the proceedings early after
discovering that testifying witness Mam Nai, a former interrogator at Tuol
Sleng prison (S-21), was not represented by legal counsel and desired
counsel but could not afford it. This disturbing discovery came about when
international defense counsel Francois Roux raised his concern that the
witness was at great risk of self-incrimination given the prosecution’s
recent submission to the Chamber that Joint Criminal Enterprise (JCE) be
applied as a mode of liability in the trial of Kaing Guek Eav (alias Duch).
JCE is a controversial form of criminal liability that extends equal legal
responsibility to all actors in a common criminal plan. The prosecution
previously represented it would not prosecute Mam at the ECCC, but this does
not guarantee against prosecution in national courts, which co-prosecutor
William Smith called an “extremely remote possibility.” The Chamber
announced recently it will rule on the application of JCE at the same time
it rules on the merits of Duch’s case; thus, it is still an open issue.
Given that JCE is a possibility and Mam was Duch’s subordinate, Roux argued
that the Chamber should ensure Mam has an adequate understanding of his
right to remain silent and right against self-incrimination. Realizing Mam
was unrepresented, the Chamber contacted unspecified ECCC units to get a
lawyer for Mam and requested he return today.
Yesterday, it appeared as though Roux truly had Mam’s interest at heart. In
comments this morning, it was clear that his true allegiance was to his
client and Roux was using Mam to illustrate for the judges why JCE should
not be applied to Duch. Smith had argued that JCE did not change the
landscape for Mam with regard to self-incrimination as the prosecution could
have used aiding and abetting liability, for example, to reach him
previously had it so intended. Roux used these words against Smith stating
that this proved JCE was “not necessary” and asked him to withdraw the JCE
application.
Smith accused Roux of violating the Internal Rules and unnecessarily
alarming the public and the witness yesterday by raising the
self-incrimination issue publicly at the last minute. Under Rule 28.8, if a
party is aware that witness testimony may raise a self-incrimination issue,
that party is required to request an in camera hearing and advise the judges
in advance of the testimony.
The judges did not address the war of words over JCE. However, at the outset
of Mam’s testimony, the President did ask the witness a series of questions
to ensure Mam was represented and informed. The President confirmed with Nam
that he had a lawyer present in the courtroom, he had consulted with that
lawyer, and he was now able to answer questions. The President also
announced the new lawyer, explaining the Witness and Expert Support Unit and
“other ECCC units” made the decision to seek this lawyer’s assistance. As
reported yesterday, victims, experts, civil parties, and accused persons
seem to be well-supported by the court’s various units, while Mam, a witness
implicated in the trial, appears to have fallen through the cracks.
On a separate issue, Roux raised his concern this morning that Mam’s
newly-appointed counsel was seated on the defense side of the courtroom.
Roux argued this was akin to announcing Mam was an accused person and
suggested the lawyer be seated next to Mam instead. In an unusual step, one
of the civil party lawyers stood to announce her agreement with the defense.
For the prosecution, Smith argued that Roux had unnecessarily created a
negative impression of the seating assignment with his remarks.
The President briefly addressed the issue of the new lawyer’s seating
assignment. The President explained that the lawyer’s proximity to the
defense was merely coincidental as that seat allowed the lawyer space to
work and a close view of his client.
From Professor to Interrogator
After hearing Duch state time and again that his subordinates carried out
the dirty work at S-21 while he worked with pen and paper in his removed
office, I was anticipating that Mam would provide groundbreaking testimony
detailing the operations at S-21 and demonstrating that Duch had direct
knowledge of atrocities and in fact ordered that such activities take place.
I was completely wrong. Rather, under several hours of examination from four
of five Chamber judges, 76 year old Mam painted an even rosier picture of
S-21 than Duch, maintaining that he was not aware of any torture at S-21 and
prisoners appeared in good health.
Mam is a well-educated man. He speaks Khmer fluently and has a decent handle
on English, French, and Vietnamese. He graduated at the top of his class
from college before becoming a professor. After being arrested and
imprisoned, Mam and Duch shared a cell for almost two years before being
released by the Lon Nol regime. After a rally in 1973 during which Lon Nol
soldiers opened fire, Mam fled into the jungle where he studied
revolutionary ideas with Duch and others. Duch later recruited Mam to work
with him at the M-13 security office, which Duch chaired. At first, Mam was
not given important tasks at M-13, but after a while he learned how to
interrogate “people who hated the revolution” by observing Duch in action.
Perhaps a month after the Khmer Rouge “liberated” Phnom Penh in April 1975,
Mam left M-13 with Duch to join the newly-established S-21 prison. At S-21,
Mam was assigned to interrogate prisoners deemed “not important,” mostly
combatants and low-ranking cadre. He was also assigned to interrogate
Vietnamese soldiers and a few Vietnamese civilians arrested on the
battlefield given his limited Vietnamese language skills. Detainees were
brought handcuffed and blindfolded to an interrogation house just outside
the S-21 compound where Mam worked alone. Guards waited outside the house
during interrogation but did not dare interfere.
Throughout the day, Mam was pressed on the interrogation methods he used and
the instructions he received regarding interrogation. He said he received no
instructions in general; however, on one occasion Duch told him to get
information on the battlefields from Vietnamese soldiers within a month’s
time. Interrogators were not allowed to discuss their techniques. As for Mam’s
technique, he simply “played politics” with the detainees asking them
questions repeatedly until they confessed. Sometimes, he would send
detainees to “reflect” for a few days in their cell before calling them
back. Mam claimed that eliciting detailed biographies and confessions from
detainees was “not difficult at all” and no physical coercion was necessary.
When asked what happened if he received no response, Mam said he would
report that to Duch. Mam could not recall what Duch would order, if
anything, in such instances. Mam wrote out the confessions by hand.
While Duch and other witnesses have stated that biographies and photographs
were taken upon arrival at S-21, Mam said detainees came to interrogation
without any documents, so he started from scratch. When asked if he knew of
S-21’s policy that everyone detained was guilty and everyone was killed, he
said he did not know about this. Later, however, he stated that all
Cambodian detainees at S-21 had committed some offense whether “minor or
serious” against the revolution. With regard to Vietnamese prisoners, he
considered all of them guilty of invading Cambodia. Mam believed the
confessions he elicited were partially true, but that the “quality of the
truth was very minimal.”
“I cannot recall anything related to this matter.”
Variations on the above sentence seemed to be Mam’s mantra throughout the
day. In response to perhaps forty-percent of the judges’ questions, Mam
responded that he did not know, that such information was beyond his
knowledge, or that he could not recall. Repeatedly, Mam emphasized that he
was “just a plain and simple interrogating cadre” and was not allowed to
“wander freely” at S-21. He said he focused solely on his tasks and
pretended he was “blind and deaf.” He said that if he had asked questions or
“poked around,” he would not be alive today. Mam could not describe how S-21
was organized, how many people worked there, where his prisoners were from,
what techniques other interrogators used, how prisoners were detained, or
what happened after they confessed. He could not recall ever hearing screams
or interrogating women.
Despite the fact that his testimony differed drastically from any facts that
have been presented, his justifications and limited understanding seemed
somewhat plausible for a while. However, I lost total confidence in his
testimony when he stated that from his observations prisoners were “neither
skinny nor pale” and appeared to be in “normal physical condition.” By all
accounts, S-21 prisoners were some combination of starving, dehydrated,
wounded, sick, and weak.
When Judge Cartwright started questioning Mam, it was clear she had little
confidence in his testimony. She spent a solid ten minutes establishing his
education and high marks before asking him if it was fair to say he was
“well-educated,” “clever,” and probably one of the most intelligent men at
S-21. She went on to examine several inconsistencies between Mam’s
statements to the co-investigating judges and his current testimony. Judge
Cartwright’s line of questioning seemed to suggest great skepticism that
this very intelligent man could lack such basic knowledge of his immediate
surroundings. After receiving a few unsatisfactory responses to his
questions, Judge Lavergne asked Mam, “Do you have problems with your
memory?” Mam explained that he recently became unconscious after taking a
fall in his home and has had trouble with his memory ever since. In light of
Mam’s light testimony, Judge Lavergne summarized Duch’s dark accounts of
conditions and operations at M-13 and asked Mam somewhat sarcastically if he
stayed at the same place as Duch. Mam explained that conditions throughout
Cambodia were miserable at the time, but confirmed that prisoners had less
food and worse clothing than the average person.
After a day of silence, Mam’s lawyer stood to make a practical request that
the judges quickly accepted. He asked that a whole document be displayed,
instead of only one portion thereof, in order to allow Mam to better
understand and answer a set of questions. In subsequent comments, however,
Mam’s lawyer displayed a lack of understanding about the proceedings and how
matters are handled in the courtroom. He said that the Chamber was putting
repetitious and leading questions to the witness, that he was concerned
about what topics the parties might raise, and asked that the Chamber
adjourn to review what types of questions are appropriate. He stated that in
this adversarial system, a particular format should be followed.
The President appeared to try his best not to be condescending while he
explained that the Chamber was following Cambodian procedures which are
based on the French civil law system. He explained that the Chamber is
allowed to put exhaustive questions to the witness before each party is
given an opportunity to question based on the time allocation and topic list
already identified by the Chamber.
Perhaps in response to the Chamber’s apparent frustration with Mam’s
responses, Roux then took the opportunity to raise the witness’s Rule 28
rights again. Roux said it is good for the witness to be reminded of his
right to remain silent in order not to incriminate himself. The President
responded that the Chamber is well-advised and handling the proceedings
appropriately. Civil party group 1 lawyer Alain Werner then stated that if
the witness is to be reminded of his rights, perhaps he should also be
reminded of his obligations under Rule 36. Under 36.1, the Chamber may
remind the witness of his duty to tell the truth and explain the
consequences of failure to do so. Under 36.2, if the Chamber has grounds to
believe false testimony was knowingly and willfully provided, it can, among
other options, refer the matter to Cambodian and UN authorities or
investigate the matter further.
Tomorrow, Mam will take the stand again to be examined by the prosecution,
civil party lawyers, and defense.
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About Me
- Duong Dara
- Dara Duong was born in 1971 in Battambang province, Cambodia. His life changed forever at age four, when the Khmer Rouge took over the country in 1975. During the regime that controlled Cambodia from 1975-1979, Dara’s father, grandparents, uncle and aunt were executed, along with almost 3 million other Cambodians. Dara’s mother managed to keep him and his brothers and sisters together and survive the years of the Khmer Rouge regime. However, when the Vietnamese liberated Cambodia, she did not want to live under Communist rule. She fled with her family to a refugee camp on the Cambodian-Thai border, where they lived for more than ten years. Since arriving in the United States, Dara’s goal has been to educate people about the rich Cambodian culture that the Khmer Rouge tried to destroy and about the genocide, so that the world will not stand by and allow such atrocities to occur again. Toward that end, he has created the Cambodian Cultural Museum and Killing Fields Memorial, which began in his garage and is now in White Center, Washington. Dara’s story is one of survival against enormous odds, one of perseverance, one of courage and hope.