HIGHLIGHTS OF LEGAL PROCEDURAL ISSUES RELATED TO PERSONS TESTIFYING BEFORE THE TRIAL CHAMBER IN CASE 002/01
The proceedings of Case 002/01 featured a diverse assortment of testimonies, including 53 fact witnesses, 31 Civil Parties, 5 character witnesses, and 3 expert witnesses (ECCC). The inclusion of different kinds of witnesses ultimately assists the Trial Chamber to comprehensively ascertain the truth with regards to the facts of the case. Expert Witnesses are sought to provide insight and clarification on specific issues of a technical nature deemed necessary to the proceedings (Internal Rule 31). The Chamber has decided that Fact Witnesses are to testify about the crimes of which the Accused is charged, whose opinions should be limited to their personal experience (see the Trial Chamber’s decision). Civil Parties are included in the proceedings in order to grant voice to the victims of the Khmer Rouge regime, through which they can seek moral and collective reparation in case of a guilty verdict (Internal Rule 25).
Difference Between Civil Parties and Different Categories of Witnesses
Issues primarily arose when questions posed to the witnesses caused them to overstep the category and purpose of their testimony. In particular, Witness Stephen Heder proved difficult because he refused orders to appear as an expert witness and instead appeared before the Court as a fact witness (Link Issue 67 and 68). Heder is an American academic who worked and conducted research on the Khmer Rouge regime whose experience dictates his position as an expert on the DK. However, given Heder’s refusal to attend as an expert witness, and consequently his testifying before the Chamber as a Fact Witness, parties were instructed to ask questions that only focused on his personal experience and avoid soliciting expert opinion. This limitation catalyzed multiple objections by both Defense lawyers and the Prosecutors, illustrating the difficulty of the narrow categorization of Witness testimony, especially those whose knowledge on CPK, KR, and Cambodia were known to be vast. This was also the case during Duch’s testimony (Link Issue 15) and Francois Ponchaud (Link Issue 56).
Scope of Testimony
Another important issue that came up repeatedly regarding witness examination was the scope of their testimony. Almost every witness testimony, be it Civil Parties or other witnesses, was met with questions and objections by all Parties asserting the testimony was out of scope. Part of the confusion was because of the Trial Chamber’s ruling that some testimonies, in exceptional circumstances. will be allowed to go beyond the scope (Issue 6). Another source of uncertainty is whether or not Parties are allowed to discuss what is beyond the Scope for the purpose of providing context to the crimes included in the scope or to shed light on CPK Policies, Administrative Structure and Communication Structure, all are within Case 002/01 topics (for example see Issue 6, 37, 48, and 66).
The severance of Case 002/01, which limited the trial to the evacuation of Phnom Penh and subsequent forced migrations, particularly imposed hardship on the Civil Parties. The defense brought up issue with the statements of sufferings shared by the civil parties, which were necessarily about the experience under the Khmer Rouge as a whole as already explained in our previous blog entry on Civil Party Participation . The issue of severance order and the impact to the trial proceedings will be discussed further on the next Case 002/01 Highlights on Fair Trial Rights.
Use of Documents in Examining Persons Testifying
During the examination of Witnesses and Civil Parties, many objections were raised stemming on the unclear procedures in confronting the persons with documents. While the Chamber allowed early in the proceedings for Witnesses to read their OCIJ statements prior to their testimony (Issue 6), some issues arose in terms of whether it was allowed, and if it did, under which circumastances, to confront persons who testified with documents authored by others or statements made by others. The rulings on this matter seemed not to be standardized and remained at the sole discretion of the Chamber. For few examples when this occured, see Issues 15, 16, 17, and 20.
Witness Demeanor and Credibility
Also of concern to the Court was the reliability of Witness accounts. On several occasions, witnesses contradicted their OCIJ interviews or gave inconsistent answers, bringing up questions related to the truthfulness of the accounts. This also raised into question on whether such inconsistencies would result in the OCIJ Statements be deemed inadmissible. The Chamber held that the OCIJ Statements would still be admissible in such event, although the inconsistencies would play a hand in the Chamber’s determination of its probative value (see Issues 27, 35 and 39). There were also multiple occasions of debate regarding whether questions were repetitive or clarifying (see, as one example of many, Issue 34).
See our table on Witness Testimonies here for more information related to the content of testimonies. The star symbol marks testimonies that have serious credibility issues as brought up by the parties or markedly noticeable during our monitoring.
Issues Related to Summonning Witnesses
The issue that Case 002 was compromised due to the failure to present crucial Witnesses during the investigative stage was addressed in Court by Nuon Chea’s Defense Team. See Issue 16 in which the Accused’s counsels brought forth the allegation of political interference in the proceedings. At one point the same Defense Team also brought up the fact that many of their proposed witnesses have been rejected by the Chamber without any reasoned ruling (Issue 40). While this issue was not addressed during the week, when Nuon Chea’s counsel proposed for the summoning of Rob Lemkin, submitting new evidence related to Rob Lemkin’s work as well as 110 additional witnesses in relation to the policy of targeting Lon Nol soldiers and officials, the Chamber rejected the submission for its failure to fulfill the requirements set in IR 87.4 (Issue 69). IR 87.4 states that while the Chamber may summon or hear any person as a witness or admit any new evidence based on the request of Parties or by its own initative, any request pertaining this matter would be subject to the criteria set by IR 87.3. This criteria include that such new evidence is not irrelevant or repetitious, impossible to obtain within a reasonable time, unsuitable to prove the facts it purports to prove, not allowed under the law, or intended to prolong proceedings or is frivolous. The reasoned decision for the rejection to summon Rob Lemkin can be found here.
Report by Aviva Nababan and Francisca Gilmore
Khmer Rouge Trial Monitor 