Kambol (Phnom Penh, Cambodia). 08/06/2009: “Communism does not have to obscure our minds […]. Whatever our position back then in relation to the communist party, what we are seeking today is the truth,” Duch told his former subordinate, Mam Nay. “We are here judged by History.”
©John Vink/ Magnum (file picture)
©John Vink/ Magnum (file picture)
By Stéphanie Gée
The former head of the interrogation unit at S-21, Mam Nay, continued to testify impassively on Wednesday July 15th. He chose not to speak. Failing memory, art of eluding, lies. This time, he did not hesitate to use his right to remain silent, a right repeatedly reminded to him so many times in court. Not only did his testimony bring nothing to the debates, but it tended to minimise the responsibilities of the accused, Duch. It prompted some to wonder why the office of the co-Prosecutors submitted his name to the Chamber to be summoned as a witness. Fortunately, the disastrous testimony concluded with an unexpected diatribe by the accused, as eloquent as passionate, in which Duch severely criticised his former subordinate for not contributing to the search of truth and not following his example in recognising the facts. That was not creating an effect, both on Mam Nay and on the audience.
Statute of limitations?
After the judges, it was the turn of the co-Prosecutors to take on the hardly talkative witness. But first, the Cambodian co-Prosecutor reminded Mr. Mam Nay that he had the right not to incriminate himself. “That being said, the co-Prosecutors would like to encourage you to tell the full story of what you know, even if it is about things you did. The Law on the ECCC provides for the prosecution of only two types of people: senior leaders of Democratic Kampuchea and those who were most responsible for the crimes committed during their regime. Moreover, thirty years have passed since, so there is a statute of limitations for the people not included in the two categories mentioned in the law.” These words failed to unfreeze the witness.
“I wish to remain silent”
When the national co-Prosecutor showed on the screen the confession of Professor Phung Ton and asked Mam Nay if he recognised his writing on it, the latter answered: “The writing looks like mine, but I do not remember interrogating him.” When the co-Prosecutor showed him the confession of an American prisoner this time, after a few moments, the witness declared: “I wish to remain silent.”
“I do not agree”
When the international co-Prosecutor presented him a document entitled “New three-month work plan for interrogation branches,” the witness recognised his own writing and his name, but it did not bring back any memory to his mind… William Smith launched an outright attack: “Do you agree with me to say that, considering you were the one who wrote this document, at the time you wrote it, you were fully familiar with the organisation of the interrogation unit or even one of the mainstays of that service? You were not an isolated individual, in a house, who interrogated only some twenty Vietnamese fighters over a period of three years. Would you agree to say that you coordinated the interrogation unit?” Mam Nay gave a lapidary answer: “I do not agree with you, Mr. co-Prosecutor.”
Mam Nay’s notebook
William Smith then referred to a 396-page notebook, dated from December 17th 1977. The witness recognised he had handwritten it. “Those are things I took under dictation during lessons given by Duch.” “You said you did not know about torture at S-21,” the co-Prosecutor continued, “and yet, this document contains a great number of references to torture as it was practiced at S-21. So, you were actually aware of the use of torture at S-21, because you received instructions for its use. Do you agree with this statement?” “I never personally received instructions regarding the use of torture. This notebook contains notes taken during lessons given by Duch…” “Are you not minimising your role at S-21 and your knowledge of what was going on there and the activities of others at S-21, because you wish to place yourself at a distance from the terrible criminal activity that took place in S-21?”, the co-Prosecutor challenged him. “That idea never crossed my mind. I am testifying today on the basis of what I did,” Mam Nay swore.
Scared of what?
To the civil parties to interrogate the witness. Martine Jacquin, from group 3, tried to make the witness say why he was afraid of being targeted after an “enemy” implicated him in confessions. “What happened to someone who was accused?” At the slightest mistake, he or she was arrested and interrogated, Mam Nay explained, that is he or she had to write their confessions, then sent to Duch. “Why then would you have been scared of making confessions yourself?” Mam Nay said he did not understand the question, even after it was repeated to him, and preferred to use his right to remain silent.
The case of Professor Phung Ton
Next, Silke Studzinsky, for civil party group 2, evoked again the case of Professor Phung Ton. “I knew him under the former regime, but I do not remember interrogating him at S-21,” Mam Nay repeated. The lawyer showed on the screen the photograph of Phung Ton, taken at Tuol Sleng. Suddenly, the uncontrolled tears of his wife and daughter could be heard on the microphone – the two civil parties are seated behind Silke Studzinsky who represents them. The witness stated he recognised him but said he did not remember the circumstances of his interrogation, although his handwriting was on Phung Ton’s confession. The lawyer persevered. “Mr. Mam Nay, you are certainly aware that the wife and daughter of Mr. Phung Ton are present here. They are in the courtroom to know what became of him and it would therefore be extremely helpful that you cooperate to determine the truth for these two persons.” “I most certainly would like to provide further information,” the witness replied. “I have told you as much as I know.”
Return to the substance of the debates
Alain Werner, for civil party group 1, decided to confront Mam Nay to statements he made before the co-Investigating Judges. He quoted some of his answers to their questions: “From what I observed, probably, after consulting the answers, [Duch] analysed the replies to see [if the prisoner] should be interrogated again or if the answers could be sent to the top. And if he had to be re-interrogated, Duch made a note for re-interrogation,” “From what I knew, probably, only once Duch deemed it sufficient and the confession was appropriate, he then sent it to the higher echelon.” The witness remembered saying those words.
Kambol (Phnom Penh, Cambodia). 15/07/2009: Alain Werner on a screen at the ECCC
The Swiss lawyer continued in this exercise, reading the questions Mam Nay was asked and the replies he gave to the co-Investigating Judges. “Question: ‘So, there were arrests made at S-21 as suggested by Duch and authorised by the higher echelon?’ Reply: ‘It had to be like that to be done.’ Question: ‘As for the people you wanted to help, were there people you wished to help but were unable to?’ Reply: ‘People other than those of the unit, those who joined the revolution with me. As soon as Duch told me something, I could protect them because Duch listened to my opinion. But if someone had not made the revolution with me, I wouldn’t have dared to defend him.’ Sir, do you remember saying that before the co-Investigating Judges?” “Yes, that is what I told them…”
Alain Werner continued in the same fashion. He had found a way to make the witness recognised in court significant information. “Question: ‘Back then, did Duch have the right to offer to the superior Angkar to have people from outside S-21 arrested?’ Reply: ‘Duch had the possibility to make reports on cases he knew personally.’” Mam Nay did not deny anything he had told the judges.
Only the stick and electric wires
During the reconstruction at Tuol Sleng, organised by the co-Investigating Judges, Mam Nay found himself, alongside the judges and the accused, in a room in one of the buildings where instruments of torture were displayed. “The accused explained on the spot that the choice of the instruments of torture pertained to the sole interrogators. Then, a witness took the floor. Witness Mam Nay stated he only used the stick and electric wires. On that day, is it not true that […] you were telling the truth?” “I would like to use my right to remain silent on this point,” Mam Nay eluded.
Why were so many valuable documents, added to the file, not used by the judges and the co-Prosecutors? It was not until Alain Werner’s turn to speak that the debates returned to the heart of the matter – S-21 and Duch – and Mam Nay was no longer interrogated as if he were the accused, but as a witness.
No idea of the number of dead in S-21 or across the country
Later, responding to questions by Kar Savuth, national co-lawyer for Duch, Mam Nay finally admitted he had led the interrogation of Professor Phung Ton. He assured the latter gave “confessions that were not forced but spontaneous.” He also claimed that when Duch resumed his functions as S-21 director in 1976, the organisation and management style “remained almost the same.”
His international colleague took over. “To be honest with you, I must tell you that you must not believe the co-Prosecutors when they say they cannot prosecute you.” A debate reignited between François Roux and the international co-Prosecutor. Annoyed, the president promptly ended it. “As for rights and obligations, it is the responsibility of the Chamber to inform the witness about them […]. It is not the role of the defence to advise the witness.”
“Do you know how many people were killed in S-21?”, François Roux asked Mam Nay. “I do not have either the obligation or the desire to know that.” “Do you know how many people died in Cambodia under Democratic Kampuchea?” “On that question as well, I am even more ignorant. I do not know.” “Do you regret being an interrogator at S-21?” “In my opinion, there were good people and others who had committed offences. From what I could observe, there were less good people than bad people, so I have regrets for the small number of good people.” For the others, no remorse. François Roux thus concluded his questions: “Thank you, Mr. co-Prosecutor. If you have other witnesses like the present one, please do not hesitate.”
Duch dissociates himself from Mam Nay
As was customary, the accused was then authorised to make observations in reaction to the witness’ testimony. Beforehand, Duch insisted on dissociating himself from Mam Nay. He explained he was much closer to Pon, an important interrogator, whom he had consulted before marrying, with whom he had joined the revolution and who had “worked hard” – giving these examples to illustrate his personal preference. “I wanted to tell you I liked comrade Pon better than older brother Mam Nay.”
Then, in one breath and without notes, he demonstrated his rhetorical skills.
“We are judged here by History”
“This morning, Mam Nay said this document was entirely written by his hand, but there is one page which bears notes handwritten by Nath [and he quoted the exact pages from memory]. In the notebook, there are also notes by my own hand. When I see your writing or Nath’s, I do understand those are documents found in S-21. But when you say it was a writing similar to yours… don’t be scared of telling the truth. If you only report conjectures, that is no good. You have seen that I myself have accepted the responsibility of all the crimes committed in S-21. We are judged here by History and you cannot hide a dead elephant with a basket. It is no use trying. For my part, I am ready to answer for the crimes I may have committed and I would like you to do the same.”
Duch spoke firmly, on a tone that suffered no reply. It was as if his authority as S-21 director had suddenly returned to him. He lectured his former subordinate and pinned some of his lies. He continued his lecture.
“Communism does not have to hinder the search for truth”
“Naturally, for a humanitarian mind, it is necessary to revise our positions because over a million people died. Those people perished in the hands of the CPK [Communist Party of Kampuchea]. Who were the CPK members? I was one, and so were you. But you have not recognised that fact. So, on an emotional level, we are both responsible for the crimes committed. We did not have the right then to say that the political line was wrong. We had to follow the political line. If you compare the CPK policy of the time and the humanitarian aspects, you understand that those are two incompatible things. Your memory is weaker than mine. However, regarding Chao Chan, I asked Hor to take him to work with you at the place of interrogation. I am convinced of it. I remember that one day, I did not see him and I went to look for him. He talked to me about King Norodom Sihanouk who spoke French, but ‘not as well as the King of Saudi Arabia.’ That is what he said and you, Mam Nay, criticised Chao Chan for saying that. I recall that incident to refresh your memory, that is Chao Chan was with you, even if I had received the order from the superior echelon to eliminate him. Regarding Professor Phung Ton, we both recognise he was our professor. I do not want to go into detail here about the reasons why I liked him a lot. But before the civil parties, including his wife and daughter, I can repeat what I have already said. What we are trying to do here is to re-establish the truth on what happened and what became, for example, of Professor Phung Ton. Today, the world and the Cambodian people seek to know the truth and I believe it is a unique chance for us to put the pieces of the puzzle back together. Keep in mind the presence of the civil parties, who want to know where and when the professor died, and where his ashes are resting. It would be good to locate that place. I believe that here, communism does not have to obscure our minds and hinder the search for truth. Whatever our position back then in relation to the communist party, what we are seeking today is the truth.”
The man held the audience spellbound. His speech took the spectators’ breath away, as they were hanging from his every words, as if in disbelief of what they heard. For some, his statement had a soothing effect, after the anger stirred by Mam Nay’s testimony. Undeniably, Duch was the driver of his trial.
Mam Nay broke down
Silke Studzinsky, the lawyer for the wife and daughter of Professor Phung Ton, opportunely seized the chance to try and obtain more information about the professor from Mam Nay. She asked “the Chamber to give yet another chance to the witness, not to answer, but to tell the civil parties, in this case the wife and daughter of Mr. Phung Ton, if he remembered something he had not yet said. If he can tell us more about Mr. Phung Ton’s fate, because this is a unique chance we have to hear the truth from his lips.”
Kambol (Phnom Penh, Cambodia). 15/07/2009: Mam Nay broke into tears and expressed regrets at last
Mam Nay: “I would like to say the following: I would like to express my regrets to Professor Phung Ton’s family. As far as I know, his wife is the goddaughter of my grandfather Thuy.” He came to a halt and broke into tears. The president said, in a smile he struggled to repress: “I would like to know if Mr. Mam Nay can continue. He is overwhelmed by emotion, but we will grant him a few moments to compose himself.”
Regrets at last
The witness resumed: “I feel a lot of regrets, because I have also lost brothers, relatives who suffered during the regime, as well as my wife and children who died. I believe it was a situation of chaos. And nothing is left for us, except regrets. Many Cambodians perished under Democratic Kampuchea. These regrets are shared by many and if we speak in religious terms, it is our karma that suffers from it. Today, I am trying to find relief in faith and karma. But it is true that I feel regret and I hope Phung Ton’s family understands it.”
At last, Mam Nay no longer played the blind, but he did not say more. “I believe and hope I did my best to say what I could in the service of the search for truth, especially for the families. It is impossible for me to give more information. It would be a little like shooting in the dark.”
An over-considerate president
The president thanked the witness for his testimony and overdid it: “The events took place over thirty years ago and it is very difficult to remember them. We are only men and our memory is limited. Even for things that happened a few hours ago, we sometimes need to freshen up our memory. Also, you are 78 years old and with age, memory tends to waver.” He thanked him again, whilst he forgot to do so for S-21 survivors Chhum Mey and Bou Meng.
Fleeting introduction of the next witness
New witness, another former subordinate of Duch: Him Huy, the former head of security at S-21, who participated to Rithy Panh’s movie, “S-21, The Khmer Rouge Killing Machine” (2004). He was now a 54-year-old farmer. He already looked downcast. The president asked him if he wanted to be assisted by a lawyer. Him Huy said he did not have any. After consulting with his colleagues, Nil Nonn found out that the witness already had a lawyer… But Him Huy had only seen him briefly and wanted to consult him longer before testifying. The president accepted. The hearing was adjourned before the usual time. Him Huy will be heard on the next day, Thursday July 16th.
(translated from French by Ji-Sook Lee)