Judges at the Khmer Rouge tribunal have scrapped a defense appeal on the contentious issue of using torture-obtained evidence in the tribunal’s judicial investigation.
In a ruling this week, the five-judge pre-trial chamber declined to consider an appeal by former Khmer Rouge Foreign Minister Ieng Sary that urged the court’s co-investigating judges to disclose their system for deciding whether to examine some 5,000 written “confessions” from Tuol Sleng and other evidence obtained under torture.
Article 15 of the UN Convention Against Torture, to which Cambodia is a state party, says that torture-obtained evidence can only be used against torture suspects “as evidence that statement was made.”
But this has created a paradox for the tribunal. The Tuol Sleng confessions could theoretically be used to build a case against Ieng Sary and the other top Khmer Rouge leaders responsible for crafting policies that led to torture at the security center, although they did not personally apply it.
Co-Investigating Judges Marcel Lemonde and You Bunleng said in July that evidence arising from torture could be useful to the court under certain circumstances.
But in this week’s decision, the pretrial chamber judges pointedly remarked: “Notwithstanding any observations to the contrary by the Co-Investigation Judges in the Order, Article 15 of the CAT is to be strictly applied. There is no room for a determination of the truth or for use otherwise of any statement obtained through torture.”
Earlier this year, the pre-trial chamber also ruled inadmissible appeals on use of torture-obtained evidence filed by Khmer Rouge head of state Khieu Samphan and Social Action Minister Ieng Thirith.
Court legal affairs spokesman Lars Olsen noted yesterday that although Ieng Sary, Khieu Samphan and Ieng Thirith can no longer appeal the issue at the pretrial stage, if their case goes to trial they can still challenge evidence as it arises.
Possible indictments in the case of all three former Khmer Rouge leaders are due later this year.