Duch's trial in disarray against backdrop of misunderstandings between two legal systems

Choeung Ek (Phnom Penh, Cambodia). 20/05/2009: Re-enactment of atrocities perpetrated by the Khmer Rouge, during “Hatred Day”, a ceremony initiated in 1984, stopped in 1991, and reinstated in 1999
©John Vink/ Magnum

Ka-set
http://cambodia.ka-set.info

By Stephanie Gée
20-05-2009

On this May 20th, which celebrated Hatred Day, like every year, at the Choeung Ek mass grave site, on the outskirts of Phnom Penh, the voice of expert witness Craig Etcheson was again barely heard in the Khmer Rouge Tribunal and, already, it appears that the new schedule of proceedings outlined by the judges will not be respected. Although everybody was in place at 10.30am, when the hearing was planned to resume, it was not until 11am that the president of the court came and took his seat, alone, to announce that the hearing would not resume until early afternoon. The reason: the judges did not managed to reach a decision on the requests and objections submitted to them on the previous day. A group of villagers who had come specially to attend the morning hearing had to leave without seeing anything.

Rules of evidence
When the hearing opened at last, the president read the Chamber's decisions. The Trial Chamber granted the request by the defence to exclude as elements of evidence in the trial the statements of two deceased witnesses collected by the Documentation Centre of Cambodia (DC-Cam), as well as an interview of the accused made in May 1999 by a representative of the United Nations Office of the High Commissioner for Human Rights, Christophe Peschoux, documents that were brought by the office of the co-Prosecutors. However, the Chamber accepted the latter's request that a report be subjected to examination during the hearing. As for the request made by the office of the co-Prosecutors on the previous day regarding the implementation of a method of summaries to present the documents they wish to put before the Chamber concerning the testimony of expert Craig Etcheson, the Chamber invoked the great importance of rules 87.2 and 87.3 of the Internal Rules, “fundamental for the provision and conduct of a fair trial.”

The rules state that “[A]ny decision of the Chamber shall be based only on evidence that has been put before the Chamber and subjected to examination. Where the Chamber makes its decision based on evidence from the case file, it shall ensure that such evidence has been expressly put before the parties during the hearing. Evidence from the case file is considered put before the Chamber if its content has been summarised or read out in court. The Chamber may reject a request for evidence where it finds that it is:
a) irrelevant or repetitious;
b) impossible to obtain within a reasonable time;
c) unsuitable to prove the facts it purports to prove;
d) not allowed under the law; or
e) intended to prolong proceedings or is frivolous.”

Consequently, president Nil Nonn summarised, “each document must be read or summarised in order to enable the parties and the Chamber to appreciate the value of the document; in principle, the documents summarised must be written in Khmer, one of the working languages of the tribunal and the mother tongue of the accused; also, Article 15 of the Convention against torture establishes that each State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.”

Which document?
On judge Cartwright's request, Pr. Craig Etcheson endeavoured to summarise the parts of his report, “Overview of the Hierarchy of Democratic Kampuchea”. François Roux, Duch's international co-lawyer, intervened to record his regret that he did not receive French translations of some of the annexes to the document. Shortly afterwards ensued an endless search for document reference numbers, which differ according to the languages (Khmer, English or French) in which they are issued. Judge Lavergne joined in: “When one refers to a document during the hearing, […] it is important to know which document one is talking about, to know its nature, its level of translation, to make observations regarding its admissibility, as needed...” The search resumed, microphones were turned off, and everyone had their nose buried in their files. Suddenly, Judge Lavergne exclaimed: “I think I have found one!” For his part, the U.S. expert acknowledged the difficulty of the task, as the confessions often bear multiple and different dates...

Does an expert witness' testimony have be corroborated by scores of documents?
Once again, Roux became infuriated by the quantity of documents which the co-Prosecutors wished to add to the case file. “We are in a trial in which the accused has recognised most of the facts he charged with. Could we invite the office of the co-Prosecutors to focus as a priority on the facts that are still debated and present for those facts three or four documents? […] It seems to me that if the office of the co-Prosecutors made an effort to bring us three or four relevant documents regarding the facts that are contested by the accused, we could save an enormous amount of time. As for the facts that are uncontested, if you brought two relevant documents to support your evidence, I think everybody would win, especially the victims who, I believe, are eagerly waiting to be heard.”

Judge Cartwright seemed to appreciate little the comment and asked the lawyer if he attached a different value to the testimony of the accused and the opinion of an expert relating to the facts the accused is charged with. Roux corrected her: Craig Etcheson “is not truly an expert, he belongs to the office of the co-Prosecutors. That should not be forgotten. He is the voice of the prosecution here. Let us not lose that of sight!” The judge repeated her question, still waiting for an answer. The lawyer then reiterated his reservations regarding “the necessity to bring dozens or even hundreds of documents in support of the expert's testimony. A priori, I trust the expert. […] I do not need to be brought dozens of documents by him from the start.” The judge decided: “I do not believe it is the Chamber's role to tell the co-Prosecutors or any other party which documents to use before having a chance to hear them. Fee free to point out they are repetitive or different testimonies.”

It was then the turn of international co-Prosecutor Alex Bates to interrogate the expert witness. Almost immediately, he interrogated him in a way to demonstrate the usefulness for the Chamber to be able to appreciate the reliability of the expert witness' conclusions, by ascertaining the reliability of the contents of the documents used to support his report. Then, he started reading analytical reports established in 1978, first by the U.S. government, a memorandum addressed to the United Nations describing the widespread human rights violations in Democratic Kampuchea. Then, Alex Bates read a second report, of the Norwegian government this time, which repeated, in almost the same words, what the U.S report stated...

Off-topic, the defence denounces
François Roux interrupted him, asking how it was related to the Closing Order of the co-Investigating Judges for which this Chamber is competent. “I have just heard about people being evacuated from cities, a legal system that was not functioning... All of this is entirely off-topic. […] Duch is prosecuted for facts that are specified in the Closing Order. We would like for the co-Prosecutors to focus on the facts Duch is charged with. You cannot place the responsibility of all the crimes on Duch.” The president of the Chamber deemed “relevant” some of the observations made by the defence, to the disappointment of Alex Bates. He had hoped to “establish the reason and necessity to put before the Court the documents which Craig Etcheson had used to write his report.” Also, on a note of annoyance, he said he was offended by the unceasing interruptions and objections made by the defence. “The co-Prosecutors fully understand that the defence wishes to limit the examination by the Chamber of the elements of evidence to select only a few documents. And naturally, it is in the interest of the accused that documents that incriminate him or documents of substance not be addressed. But, Your Honour, one of the roles of the court and the Chamber is undoubtedly to demonstrate that an internationalised tribunal, based in Cambodia, comprising of Cambodian and international staff, is able to conduct a fair trial on the basis of the elements of evidence, and even more importantly, that this can be done in a public manner. […] It is often heard in Cambodia that the tribunal lacks transparency and that there are very few discussions in the public about what is happening here. There are an increasing number of reports, including within the tribunal, regarding corruption issues. So, what is it we wish to achieve at the end of this process? When an expert reviews the action of the tribunal, do we want him to find a ruling based on a couple of documents, elements of evidence that were not debated sufficiently, or do we want the expert to conclude that the ruling is founded on solid evidence and corroborated sources? […] The co-Prosecutors consider that the public has the right to hear the elements of evidence upon which the sentence will be founded.”

Two conflicting legal systems: the substance of the debate?
Then criticised by some of the civil party lawyers for wanting to “dictate the means of proof that are admissible”, Roux responded: “I think that we are again coming up against an issue of method and, let's say it, of legal culture. I have already said repeatedly that we are here following a Closing Order, which itself follows a year of investigation […], to which the co-Prosecutors participated in a regular and systematic manner. And I thank them for that. It was a considerable contribution to the so-called civil law procedure since, for a year, we were able to debate among co-Investigating Judges, Prosecutors and the defence.”

The French lawyer then reiterated his wish that the Closing Order be referred to more often. “Let us listen to Mr. Craig Etcheson give an overview of what Democratic Kampuchea was, of course, and his written report is an extremely interesting element for everyone. Besides, I wish for the report to be made public as soon as possible on the tribunal's website, as soon as it has been examined during this hearing. […] But the question is, do we need to know, even through summaries, all the documents which the author of the report has used? In common law, certainly. In civil law, that is not necessary […] for the judges to be convinced beyond reasonable doubt […]. Proceeding today to the exhaustive reading of the summaries of all the documents studied by Mr. Craig Etcheson, that means time lost for this court, that means money lost for this court and for the victims. […] I would like to recall that the internal rules state that the judges must be convinced of the guilt of the accused beyond reasonable doubt.”

For the first time, an international criminal court follows the civil law system, though associated with elements of the common law system which dominates international criminal law.

The hearing was adjourned on this comment from the president: “It was a long and busy hearing.”

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Novelty in the tribunal's communication
From now on, a press conference will be held every Wednesday at 12.30pm at the Extraordinary Chambers in the Courts of Cambodia (ECCC). The first was delivered by the management of the court's office of administration – Tony Kranh, acting director, and Knut Rosandhaug, his deputy. Satisfaction was expressed regarding the tribunal's good conduct of and progress in its work. It was also announced that Sean Visoth, the director of the office of administration of the ECCC, officially on unpaid leave since six months ago, will not resume his work at the court and is extending his leave. The vacancy has occurred while a graft allegations scandal marred the Cambodian side of the tribunal. Moreover, the national staff now stands at 252 employees, following a decision to downsize the staff in some sections for enhanced effectiveness and because the Supreme Court is not yet operational, it was explained. As for the court's budget, thanks to the 4.3 million dollars recently received from Japan, the Cambodian side will be able to function until late December 2009.