Kambol (Phnom Penh, Cambodia). 19/05/2009: Public consulting information leaflets on the ECCC, during the 17th day of hearing at Duch's trial©John Vink/ MagnumBy Stéphanie Gée
19-05-2009
Expert witness Craig Etcheson, called to testify at Duch's trial regarding the implementation of the policy of the Communist Party of Kampuchea (CPK) at the S-21 detention centre, only had little say in court on Tuesday May 19th. The defence complained they were “taken by surprise” that the investigator with the office of the co-Prosecutors of the court moved away from the topics planned for his testimony. The intervention fazed the judges of the Trial Chamber, who suspended the hearing for three hours to examine the issue.
The role of S-21 in the purges
At the start of the day, responding to questions from New Zealand judge Silvia Cartwright, American expert Craig Etcheson had time to confirm, in light of the many documents he compiled and studied, that the Angkar had carried out widespread purges in the military. He specified that part of the military personnel who were purged, accused of plotting against the regime, were sent to S-21 and several documents from the period illustrated that division commanders were not only aware of the existence of the centre directed by Duch, but were also actively sending prisoners to S-21.
A similar situation was observed in government ministries, where civil servants were no less spared by purges, to such an extent that, the academic recalled, some ministries complained about the difficulty to carry out their responsibilities because so many of their staff were seized by security forces. Craig Etcheson thus confirmed the specificity of S-21, which “received detainees from virtually every unit of organisation in Democratic Kampuchea across the entire country.” To illustrate his point, the expert started to give examples, quoting handwritten notes by Duch or a report made by the accused himself in 1977, drawn from the case file. He would not go any further, as François Roux, Duch's international co-lawyer, intervened because he had “a small problem.”
Defence denounces an off-topic testimony
The French lawyer explained his disappointment. He recalled that in its order, the Chamber had announced that Craig Etcheson's testimony would deal with the military structure of Democratic Kampuchea, the political and government structure of the Khmer Rouge regime, the configuration of the regime's communication network, as well as its policy and ideology. He added that the expert was leaving the framework of his report on the general organisation of the regime, “Overview of the Hierarchy of Democratic Kampuchea”, established in July 2007 and transmitted to parties by the office of the co-Prosecutors. Roux called for a return to the themes announced, especially since, as he later recalled, historian David Chandler is expected to come and testify in court more specifically about S-21.
International co-Prosecutor, Alex Bates, retorted that the questions asked by the judges to Craig Etcheson were “adequate” and “appropriate”, even when they concerned S-21. He highlighted that the witness spent most of his career studying documents relating to the Khmer Rouge regime and to S-21, in particular during the last three years.”
François Roux was not satisfied with these arguments. He added that he was not seeking to question Craig Etcheson's great expertise, but criticised that the expert “arrive with a list of new documents” and comment the work of the co-investigating judges. The defence cannot prepare without being duly informed, he argued. “That is called 'surprising the defence' and that is not correct. [...] That is not the framework initially planned.” For his part, Alex Bates ensured that the points addressed by the expert were added to the file and were therefore not new elements. He then denied any responsibility: “In the civil law system, we, the co-Prosecutors, have no control over the substance of the expert's testimony. It is up to the Chamber to interrogate him.”
Roux did not let go. For him, it would have been fair that Craig Etcheson make a complementary report, submitted to the Chamber and the parties, and referring to the new documents he quoted. The international co-Prosecutor considered the argument of the defence fallacious because, he repeated, the documents in question were added to the file. Duch's lawyer, who had the final word, insisted: he is uneasy today because, “nearly two years after his report was submitted, the same expert, knowing of the investigation against Duch, provides specifications to his report, which may be conducive to ascertaining the truth, but should have been the object of a complementary report. As we are speaking, things are not clear...”
Objection of the defence dismissed
It is 10.45am, time for the break. When the audience comes back to the room half an hour later, the court announces that the hearing is adjourned until 2pm – it will actually resume at 2.30pm – when the judges return with their decision, which dismisses the objection of the defence: “The Trial Chamber is not bound by the indications given to the parties regarding the scope of the testimony or a report established by the expert. [...] When he answers the Chamber's questions, the expert is not bound by his written testimony or his previous report. An expert is thereby not obliged to submit a written complementary report.” As for the general rule that documents must be available in the three working languages of the court [Khmer, English and French] to be put before the court, the Chamber announces that it will accept references to documents available only in Khmer and another working language of the court, arguing that all parties as well as the Trial Chamber include Khmer speakers, that the court's translation resources are limited whilst the case file comprises many documents, and finally, that the court has the obligation to conduct the trial in a fair manner within a reasonable time. However, there is one exception: when no preliminary notice was given regarding the reference to a document. Moreover, all translations will be accepted by the Chamber, unless objections are made regarding the accuracy of the translation or inconsistencies between the different versions of the text. The Chamber also recalls the parties that any document must be read or summarised to consider that it was put before the court.
S-21, the power's death machine
The hearings resume. Craig Etcheson comments two charts established from combined lists of prisoners in S-21, proving, yet again, that purges affected all zones of Democratic Kampuchea, and in particular the North-West, the East (with very brutal purges at the second quarter of 1978) and the former North zone, renamed central zone. The presentation of the charts irritates Roux. “We have spoken for weeks, months even, with the office of the co-Prosecutors to establish a list of the facts acknowledged by the accused. Don't you think it would have been worthwhile to present these documents to the defence, instead of waiting for the day of the trial? That is not my idea of adversarial principle.”
When judge Cartwright asks him to compare S-21 with the other detention centres, Pr. Craig Etcheson deems that, a priori, only the centre directed by Duch received such a diversity of prisoners of different origins, while the other security offices were empowered to proceed to arrests only within their own areas of operations. In contrast, S-21's area of operations was nationwide. Another specificity of the centre was that it received prisoners who had the highest ranks in the hierarchy. As an illustration, the expert said that “in his own statement to the co-investigating judges, the accused person has said that only S-21 had the authority to interrogate members of the Central Committee and of the Standing Committee of the CPK.” Moreover, a look at the list of prisoners in S-21 shows that leading cadres from the zone, sector and district echelons, along with ranking military leaders and ranking leaders of government ministries almost invariably ended up at S-21 when they were purged, he added. He also specified that there was no evidence to suggest this was the case with any other security office in the country. Finally, according to the expert, it appeared that only Duch had direct, personal, daily reporting relationship with Son Sen and Nuon Chea, unlike the heads of other security offices in Democratic Kampuchea.
“For the speed and efficiency of the trial”, Alex Bates, speaking for the office of the co-Prosecutors, then suggested that any party wishing to rely on documents submit an index of those documents which contains a written summary of each of those documents, and that an oral summary of each type of document be then made in court.
François Roux: “I have a dream...”
François Roux has a dream, “that within international criminal courts, prosecutors stop flooding us with totally useless documents. I have been in international criminal jurisdictions for almost ten years and it is always the same thing: hundreds of documents that are totally useless and burden the courts and translation pools because the prosecutors have set no hierarchy, from the important to the secondary. And we are yet again in that debate. When you realise the scope of the documents the prosecutors would like to add in support of Mr. Etcheson's report, it gives one vertigo. Do we really need all those documents when we have an expert who is supposed to have worked on those issues and provide us with his expertise? [...] It is a very bad habit that has spread in international courts and that bears a great responsibility in the unacceptable delays in the trials before international tribunals. In my legal culture, I was taught three things: to be clear, distinct and precise.” The lawyer had already raised this concern previously during the trial.
Referring to rule 85 on the conduct of hearing, François Roux recalled that “[I]n consultation with the other judges, the President [of the court] may exclude any proceedings that unnecessarily delay the trial, and are not conducive to ascertaining the truth.” And he called the co-Prosecutors to sort their 148 documents, in connection with the testimony of the expert witness. He wondered that they needed to add to the case file 200 press articles, some of which are “useless and necessarily repetitive” to illustrate the armed conflict with Vietnam. “Frankly, do you need 200 news articles to know there was an armed conflict between Cambodia and Vietnam?” The lawyer asked the judges to “use the rule in Article 85 to request that the office of the co-Prosecutors make a selection and not flood the debates under scores of documents.”
After taking a minute for all parties to cool down, Alex Bates explained he was precisely seeking to establish a principle to make a synthesis of the documents and claimed that the expert himself had already made a selection of the documents. “Our responsibility is to prove the guilt of the accused, that is what falls on us as co-Prosecutors,” he retorted.
To conclude the day's debates, François Roux hammered his point: “What is most important for us today in this trial? To distribute, comment scores of documents, or have the opportunity to give the floor to victims and civil parties? You must make a choice.”
The hearing will resume tomorrow, later than usual, at 10.30am, as these questions, the president of the court explained, have a vital importance and must be debated.
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Pol Pot, almighty leader?
Pol Pot himself had no power to release anyone, Duch claimed during the trial. Craig Etcheson prefers to take this claim with caution. In light of the way the CPK Standing Committee worked, following the principles of collectivism, communism and democratic centralism, it is true that policy decisions were discussed and decided with everyone. But the American also deems that “Pol Pot, as secretary of the party and as a politician, was a very persuasive individual. So, it is difficult for me to imagine that if he wished for someone to be released from S-21, he could not somehow arrange for that to happen.” Moreover, he stresses that documents newly received from the Documentation Centre of Cambodia (DC-Cam) indicate that there were several cases of releases from S-21, or even more than the accused has recognised until then.
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