Kambol (Phnom Penh, Cambodia). 21/04/2009: Simultaneous translation earphones at the trial of Kaing Guek Eav, alias Duch, at the ECCC. ©John Vink, with the help of Stéphanie Gée
By Stéphanie Gée
23-04-2009
The trial of Duch is now entering its third week and the problem of simultaneous translations, sometimes uncertain during the hearings - it is to be reminded that the court operates in three languages: Khmer, English and French - was at last brought to the fore via an initiative of the Defence. After an interesting debate over the question of the admissibility of documents presented before the Trial Chamber and the outstanding revelations made by Duch regarding the conditions in which he was interviewed by a UN representative, the M-13 chapter is finally closed. By the end of the day, the core of the case was eventually reached - the S-21 centre - with, for starters, a look back on the establishment of the death machine in August 1975.
Parties worried over court sounding like a “Tower of Babel”
The French lawyer for Duch, Mr. Roux, was the first one who dared sound the alarm. “The Defence wish, respectfully but solemnly, to draw the attention of the Chamber on the serious issue of translation we are faced with. All the echoes I receive tell us that we lose at least 50% of the words said in Khmer. This is a judicial hearing! It is unthinkable to continue working like that! I am asking you [the judges], according to the powers that are conferred upon you, to order the administration of this court to immediately take the necessary measures so that we can benefit from faithful translations [...]. When our debates finish, your Chamber will issue a decision on the basis of the words that were said here. I do not want to imagine what might happen if elements that were said are lacking in your decision, or even worse, if the words said are totally twisted.”
And to illustrate his position, Mr Roux reminded the audience that the day before, as the witness was talking about “three pits”, what he received in his earphones was actually “three prisons”... He did not fail to point out the abnormality of the translation from Khmer into French and vice-versa, as they are still inexistent several weeks after the trial started. Translations systematically go through English first, which increases risks of incomprehension. He emphasised the fact that there are enough competences in Cambodia to offer decent translations and that the resources granted to the court for translations were insufficient.
Other parties unanimously backed the request expressed by the Defence. Mr Khan, co-lawyer for Group 2 of Civil Parties, pointed out in turn that it was “of the highest importance, for the integrity of the proceedings and the legitimacy of the final verdict, that translation is reliable and not questioned”. As a proposition, he mentioned the appointment of an independent expert who would check several translation samples and diagnose which solution is appropriate, failing which the problem will persist.
Mr Canonne, co-lawyer for Civil Parties Group 3, also added his voice to all those worries: “It is important that we all have a fine understanding of the situation, that there is no ambiguity whatsoever and that the final verdict is based on the Law and is fair on the human level. It is therefore necessary that translations are precise and faithful. [...] I fear that in this debate, we might miss on part of the truth, simply because we do not understand what we are told.”
Admissibility of DC-Cam documents
At the start of the day, Mr Roux went back over the two interviews carried out by the Documentation Centre of Cambodia (DC-Cam) which the Office of the Prosecutors would like to add to the case file and debates. But the Defence reacted against it since, as pointed out several times by the French lawyer, “those documents were obtained in conditions that are not sensible”. Mr Roux gave an example to illustrate the fact that they could not be used as judicial evidence: “The NGO DC-Cam established a widespread report with one of those videos and in that report, without hindsight or any verification, this NGO informed the public that 30,000 people died at M-13! [...] Can we seriously, after having heard some witnesses from both parties, continue to let people say and write that 30,000 people died at M-13? We are here to deal justice, not propaganda, on whichever side it may be! I therefore ask you to dismiss those non-professional documents!”
However, assistant international co-Prosecutor Alex Bates tried again. He estimated that since the Defence did not specifically object to those documents, they could not be dismissed. “Once the document is added to the case file, it is in the case file!” He then wondered, out loud: “Do we have to say that all the statements provided by DC-Cam are not admissible because they were not received in accordance with the procedures used for legal statements? [...] The Defence said these were not judicial documents and they cannot be used. I do hope that Mr Roux is not saying that documents from DC-Cam should be rejected from the case file and cannot be considered... Rule 76-1.1 of the Internal Rules stipulates that procedural defects, and in particular if a document added to the case file is considered as null and void, must be mentioned during the investigative phase.” But this has not been done.
Alex Bates acknowledged the right for the Defence “to say that less or no importance at all should be given to such or such statement because no judicial guarantee supports it, because the training of investigators is unknown of because translation is not exact”. However, according to the magistrate, “some documents from DC-Cam can be more useful than others before this Chamber as some of them contain relevant information. Each document, taken individually, must be assessed for the very worth it represents. There is no obligation stating that all parties must agree on the admissibility of a document.” Thus driving the point home, he concluded by saying that creating Internal Rules regarding admissibility did not fall within the jurisdiction of the Trial Chamber.
Mr Khan, who agreed, made a comparison with Rule 87 of the Internal Rules, which states that “all evidence is admissible”, without any need for a document to be authenticated by a witness. Otherwise, he added, this would create a “dangerous precedent”.
Mr Canonne, who also took the same side, pointed out that “the particularity of this trial is that it is made with preliminary investigations and a multitude of documents collected on the side”. “When it comes to common sense, the good in our debates is that we can compare and confront all this documentation and information with the declarations made here by witnesses. [...] If the Chamber tells us what the best way for us would be in order to know the fate of those documents, if a decision was made and an operating pattern defined, then we will not go back to this issue! [...] And when it comes to Law, if at any time during the judicial investigation, the parties consider that any part of the proceedings is null and void, they may submit a reasoned application to the co-Investigating Judges requesting them to seize the Chamber with a view to annulment. Unless I am mistaken, this has not been done. I am coming to Rule 76-7. Subject to any appeal, the Closing Order shall cure any procedural defects in the judicial investigation. No issues concerning such procedural defects may be raised before the Trial Chamber or the Supreme Court Chamber. We are currently discussing a non-debate. We have expressed our position!”
“A defect that is well-known regarding the Office of the Prosecutors”
Facing the hail of attacks, Mr Roux seizes another opportunity to counter-attack. “Rule 76 of our Internal Rules is mentioned, about requests for annulment because of a procedural defect. But now the Defence is being lectured with that sort of comment: 'But of course, it was up to you to request the annulment of the procedural piece before the closing of the investigation and now this is too late!' I thank you, dear colleagues, for this reminder! What are we talking about here? Is there anyone here willing to pretend that an interview carried out by DC-Cam is a procedural piece? According to the legal meaning of the word? Would you like me to remind you what a procedural document is in Civil law? Look up the 'definition of a procedural document' in the Private Law dictionary: they are added during the hearing, they concern the way proceedings are carried out and the administration of evidence! [...] If I were to use Rule 76 of the Internal Rules, it would be to request the annulment of the judicial statements! Indeed, the Defence did not estimate they should ask for the annulment of judicial statements, established by the co-Investigating Judges or via a letter rogatory issued by the co-Investigating Judges. This rule cannot, in any way, resolve this problem. The documents we are talking about are not legal statements even though they aim to look like legal statements! A legal statement is an official document made by persons who are on oath and, in the Civil Law system, persons who are placed under the control of co-Investigating Judges.”
To finish, Mr Roux stressed once again the fact that the investigation lasted a year and a half on the side of co-Investigating Judges and the interrogations of the accused lasted more than thirty days. “You had the possibility to bring all the documents you wanted to co-Investigating Judges so that the accused can be heard as part of the procedure of investigation and I invited you many times to respect that procedure of investigation, and I warned you many times too: be careful, you will not be able to do what you do not do during the procedure of investigation afterwards. And this goes too for defendants who refuse to reply to co-Investigating Judges. It is too late after that!”
The lawyer then ripped into the co-Prosecutors. “We find here a defect that is well-known regarding the Office of the Prosecutors before international jurisdictions where tonnes and tonnes of documents are brought up and time is wasted sorting them. I expressed the wish that in this court, before the Investigating Judges, we can prepare all of that higher up the line so as to avoid, like it is the case today, spending two hours while many people, victims and others, are awaiting, at last, the mention of S-21, and we are still trying to solve problems which should have been sorted out before the co-Investigating Judges. Wanting to prove too much leads you to a situation like this one! You are currently asking the presentation of two documents which are thoroughly contradictory. I am asking you to say that DC-Cam documents are not procedural documents, in the meaning described by Civil Law. [...] I am asking you to say that by virtue of Rule 87 paragraph 3, you have the possibility to declare those documents as inadmissible. And if I look ahead, I can say we will find this debate again with the question of the film which DC-Cam wants to introduce in those debates. The Defence worked on this film on the side and it holds a few surprises in store...”
The Trial Chamber will issue a decision later regarding this issue.
An interview that resembled an interrogation
If Duch confided in Irish photographer Nic Dunlop, the one who had found him, that it was Christ who had led him to him, according to him, he did not prove as gentle around Christophe Peschoux (the current representative of the United Nations' Office of the High Commissioner for Human Rights in Cambodia), who was back then the representative of the delegate of the United Nations' High Commissioner for Human Rights, whom he came across a little later, in late April 1999. Indeed, Judge Lavergne wanted to go back over, with the accused, the circumstances in which this interview with the UN official took place.
From the 29 April to 3 May, Duch was interviewed in Battambang by Christophe Peschoux, who, according to Duch, led the interview "like an interrogation". "I protested and he told me: these are the international standards and he stated that he had a mandate from the United Nations, and that I was therefore obliged to answer." The accused even added: "Mr. Peschoux came like a thief, coming to rob me!" Duch reported that the UN official explained to him that they had failed to find him political asylum, and said that he had to go to "prison in Belgium". "I couldn't believe it, I was stunned!" Mr. Peschoux and his colleagues would have given him some money to cross the border, the international police would be waiting for him on Thai soil to arrest him and then send him to Belgium. But this never happened.
"These are serious accusations against UN officials!", the co-Investigating Judge shouts out. "Why haven't you told this to a co-Investigating Judge?"
Mr Roux steps in, reminding the audience that the Defence noted certain shyness at the end of the transcription of this interview, representing the legal statement."The United Nations representative should have drawn Duch's attention to his right to remain silent", the Defence pointed out, adding that certain confusion existed concerning the translation of this interview as it appears in the case file. The Defence made a request to obtain an original copy of the recordings on tape, prior to all the observations that Duch could formulate. "And Duch said, after having replied, in the presence of his lawyers, to all the questions from the co-Investigating Judges, that he considered this statement outdated and not of interest today", Mr Roux concluded.
Alex Bates, moving away from the subject, announces that Duch's attitude with regards to the document could be explained by the fact that he was afraid of the answers he had given to Mr. Peschoux, and that he did not want them to be used against him today. Duch denies this. This interlude nevertheless allowed the former head of the S-21security centre to bring light on his decision to come out of silence and resurface in 1999: he could not accept the fact that Pol Pot claimed S-21 was nothing but an invention by the Vietnamese, since it was him, Duch, who directed S-21.
Introduction to S-21: its creation and establishment
By the end of the day, judges had turned the page on M-13 and started the examination of S-21, which brought together the forces of M-13 and of the office 703, according to Duch. "Pol Pot had the idea of creating S-21, Son Sen had the task of implementing that task and Nuon Chea of verifying that it had been put in place. [...] Everything Pol Pot said had to be implemented", he declared, after naming the seven leaders at the top of the Khmer Rouge hierarchy in 1975: Pol Pot, Nuon Chea, So Phim, Ong Choeun (alias Ta Mok), Ieng Sary, Vorn Vet - a member of the permanent secretariat - and Son Sen, the head of the Police and Minister of Defence.
The subject will continue to be brought up tomorrow, but only during the morning, as the judges have to make numerous decisions and have therefore decided to cancel the hearing for the afternoon.
