Delivered at a training workshop for human rights documentation practitioners organised by the Transitional Justice Working Group in June 2018, hosted by the Documentation Center of Cambodia in Phnom Penh.
The Extraordinary Chambers of the Courts of Cambodia (ECCC) was established by an agreement between the government of Cambodia and the United Nations, after the Cambodian government asked for support to help set up a legal process to pursue accountability for the atrocities committed during the Khmer Rouge era between 1975 and 1979. The government of Cambodia wanted a majority of Cambodian judges, but the UN at that time was concerned that there was a lack of judicial independence in Cambodia to do this. A negotiation process resulted in a combination of international and Cambodian judges, as well as both a Cambodian and an international prosecutor.
The rules of the court are that all decisions require a super-majority, so four out of five judges must favour a decision for it to be carried. There are special mechanisms for situations when a decision cannot be reached, and some of these are still being tested.
This lecture focuses on how we – the prosecutors – used evidence such as that provided by the Documentation Center of Cambodia; situations where you have private organisations collecting information about crimes and how that is of use to the prosecution.
I have been working in international courts for 18 years and this is the sixth tribunal I have worked on. Before that, I was a prosecutor in Los Angeles in the United States for 20 years. My unit would examine shootings to determine whether a police shooting was lawful or without cause. The ECCC was established in 2006 and has continued for 12 years. Initially it was thought it would last three years, partly because of the amount of evidence that had already been collected by DC-Cam. DC-Cam continues to provide new evidence to us as they uncover it. A year ago they came to us with 700 photographs they had discovered at the S21 prison facility, and evidence like this has been extremely useful, but how did the judges treat it?
The system used at the ECCC is based on the French model – an investigative judge system. At the beginning of the case, the investigative judge takes the complaint from the prosecution and launches an investigation. At trial, the courts in Cambodia tend not to apply the typical rules of civil law, where every interview by the judge is considered evidence and it is not necessary to hear the witness again. Here at the supreme court, to find someone guilty beyond reasonable doubt, even for a single death, it is necessary to rely on witnesses who testify in the court. So less weight is given to interviews done by others, not only by NGOs such as DC-Cam, but also interviews done by the investigating judges. This is a problem in this case where 1.7 million people lost their lives: how many witnesses need to testify to prove that such a high number of people died?
In every court that I have participated in at this level, the judges have given more weight to the testimonies of the witnesses they’ve actually seen and heard testify. In many international criminal tribunals, the general rule is that you cannot have a witness who did not testify in court, and you cannot consider their statement if it is talking about the conduct of what the defendant actually did or said. Claims such as these require the witness to be present in the court. To prove that crimes happened, it is permissible to consider evidence from witnesses who are not testifying in the court, even though the defence does not have the right to cross examine them. However, the judges will give more weight to a witness who actually testifies in the court. If the defence gives a very good reason why the need to cross examine a witness who has given a statement outside the court, they can bring the witness. That being said, how do you know which witnesses to call?
There were eight million people in Cambodia at the time of the Khmer Rouge, and we knew who to speak to on the basis of the interviews DC-Cam conducted. They gave us important information about who could talk about the different crimes. As the crimes involved tens of thousands of perpetrators, we obviously don’t have the capacity to try everyone involved – every policeman, every prison guard. In situations like this, the courts tend to adopt policies to target those deemed “most responsible”, and that was the agreement between the UN and the government of Cambodia.
So what happens when you get one of these top leaders? In the Cambodian case, the top leaders were often in Phnom Penh, whereas the witnesses were coming from the villages. The leaders had never met the mothers who were killed or the children who were starving. They didn’t know the prison guards or village chiefs. So how do you prove a link between these leaders and the deaths of local people? How do you prove their responsibility for crimes in places they’d never been to, against people they had never met, perpetrated by people they’d never given a direct order to? This is the complicated challenge the prosecution has. The way we met this challenge was by showing the policies the regime had that caused these crimes to occur, as well as the fact that the accused persons knew what was happening. Who are the best witnesses to build cases such as these?
A witness who can link the perpetrators to those higher up in the regime, or to the policy concerned, is critical. It is important for the court to develop policies around this at the beginning of the process to protect witnesses who can do this. The witness may be at risk, and every situation is going to be a little different. In addition, how do you avoid being made a fool of? Some witnesses will come to you seeking advantage, such as a generous relocation package or overseas protection, some may even be a plant to embarrass you and make the prosecution seem as though they are manufacturing crimes.
Finding the right middlemen to link perpetrators to those higher up is difficult, but not impossible. In big cases, there is rarely one smoking gun piece of evidence. It is usually small pieces of evidence that come together to show that this was a policy coming from the center. The role of these high-level people is often not that they gave an order to kill, it is that they provided the transport buses, or the guards at the prisons who tortured people, or provided arms and ammunition. You can show that the accused had knowledge of these crimes and continued to support the perpetrators. We often find that the actual perpetrators of killings are a fairly small group of people, as not many people actually like to kill others, or are especially cruel. The responsibility of those above them comes in the form of command responsibility. This is the failure to dismiss someone that we know has committed a crime, or the failure to investigate crimes. Those with command responsibility have a responsibility and a duty to punish or prevent crimes they are aware of.
When bringing witnesses to testify against those higher up, it is important to be transparent about what benefits can be given to the witnesses, as well as to protect any data associated with them. In the beginning it is also important to think about how you are going to store your information so that it is digitised and searchable – have metadata that makes it simpler to find things you’re looking for.
One of the things we start with are documents. You rarely see a documented order to “kill all the children at the prison” – although we did have that in one case. It is important to gather the evidence of those who witnessed a death, as well as information from the family and friends of those who have been victimised. But that is not the most difficult aspect. The more challenging part is finding the perpetrators – even mid- or lower-level – to talk about what happened. How do we get them to do that?
When we have someone testify, the perpetrators are first given a letter saying that they will not be prosecuted for what they did during that time. This was a decision between the co-prosecutors and the investigating judges. We agreed that we will not prosecute these witnesses, unless they lie. People are usually reluctant to admit they ordered killings or enslavement, and generally what we get from perpetrators is denial. But it is a process: bit by bit the truth comes out, and sometimes it comes out and then retreats.
There can also be different outcomes depending on whether an interview is conducted by an NGO, a journalist, or the prosecution. There are differences legally as to what these different groups have to tell the witnesses, as well as their responsibilities towards them. For the prosecution it is more formal. Many times, people will open up more to an NGO or journalist and tell more of the story. Other times, witnesses will be reluctant to admit doing anything wrong, but if put under pressure or the threat of libel, they will see that it is to their advantage to give us information. This can help us build leads up the chain of command.
The documents are also very important. Many documents were discovered at S21 and other prisons. Also useful are documents that were used for propaganda – the things the Khmer Rouge gave to their cadres about how they wanted them to behave. The documents did not say things like “kill people”, but rather, “be vigilant about your enemies.” They didn’t say “force people to get married”, but rather “it is important to build revolutionary families and triple the population”. How would that happen? By forcing marriages and forcing reproduction. We charged this as rape – forcing people to marry and have sex without consent. These sorts of publications are incredible important.
Also important are documents written by outsiders: the press in Thailand at the time, or Amnesty international reports based on refugee statements about crimes that were ongoing, for example. These documents helped prove that crimes happened. However, this is not the most important purpose, as by the time you go to court, this should already have been established. The key is to prove that the accused were aware that the crimes happened. We also sometimes recovered telegrams from the center of the party to the periphery units that were useful to cases. This was an important lesson learned in the Charles Taylor case I also worked on. Charles Taylor was charged with committing crimes in Sierra Leone, supporting the rebels there. We interviewed radio operators from the rebel groups there who were clever, had good memories and turned out to be excellent sources of information and insight into orders going in and out.
I always say you start your trial by collecting every possible statement from the accused person, including newspapers and radio. One thing we have used in many courts is the FBIS news service in the United States, which summarises world news continually. We find that every word the accused says publicly, even if it seems to help them initially, can be useful for the prosecution’s case.
Even in cases where the accused says they were only acting on an order from above, when considered alongside the totality of the evidence against them, responsibility for crimes can be proven. You use the totality of the evidence to discern what is credible. Even if a document appears to be helpful for the defence, collect it. One thing you may be able to prove is that the accused were consistently reporting things that were false: why would they do that if they didn’t have crimes to cover up? Always collect the evidence, you don’t know who will come to testify and what they will say years from now. Regarding instigation to crimes, you need to show that there is a link between the crimes and the instigation – that the crimes began or escalated along with instigation for example.
When doing interviews, dates are extremely important. This is especially true in situations where leaders change in different areas via purges or other means. If you have a witness come and say a crime happened during a period of time, you may not necessarily be able to prove that the crime was the responsibility of a certain leader if the leadership changed during the same period. In some contexts, such as Sierra Leone, we found that people often don’t know the year, and speak less in terms of months and more in terms of seasons. So it was important to use big, well-known and well-remembered events to help orient them chronologically. This can then help prove who was in charge at the time of a crime.
Another issue that is often difficult in Cambodia is names: people often go by several different names. It is important therefore to get as much information as possible about the name, a physical description of the person, who their relatives were and so on. There are still a great many people who are unaware of where, when or how their relatives were killed during the Khmer Rouge era, and we want to make available the lists we are creating of names of those we can trace. We would like to disseminate this information as widely as possible.
Last Updated: September 11, 2018
Summarised by Sarah A. Son