The 5,000 surviving written “confessions” extracted under torture from the inmates at Tuol Sleng prison were illegally obtained and cannot be used as evidence against other senior Khmer Rouge leaders, according to lawyers for the regime’s former Social Action Minister Ieng Thirith.
Circulated among the most senior Khmer Rouge leaders, the statements of S-21 prisoners, who were subjected to waterboarding, beating, electrical shocks and suffocation, may be crucial to showing that the suspects now in detention at the Khmer Rouge tribunal were jointly aware and responsible for crimes perpetrated during the Democratic Kampuchea period.
However, the possible exclusion of the Tuol Sleng confessions on human rights grounds creates the perverse possibility of using the suffering of the victims to shield their alleged tormentors from prosecution.
In a February motion filed before the start of S-21 Chairman Kaing Guek Eav, alias Duch, which this month began publicly discussing the so-called confessions, lawyers for Ieng Thirith, Diana Ellis and Phat Pouvseang, said the law prohibits the tribunal from using evidence obtained through torture against any Khmer Rouge suspect not accused of the torture itself.
“The defense submits that the use of such illegally obtained material is inadmissible in the current proceedings as it violates provisions of international law and national law,” Ms Ellis and Mr Phat Pouvseang wrote.
Despite the fact that the defense filed the motion as a public document on Feb 11, the tribunal’s Co-Investigating Judges Marcel Lemonde and You Bunleng have yet to publish it in any form.
After threatening a defense team with censure in March for publishing similar documents on an independent website, Judges Lemonde and You Bunleng publicly acknowledged that they had failed to keep the public sufficiently informed about continuing investigations at the tribunal.
Citing the confidentiality of the motion, both Ms Ellis and Francois Roux, a defense lawyer for Duch, declined to comment. After requesting an extension of the deadline to respond to Ieng Thirith`s lawyers, prosecutors are due to file an answer to the motion today.
Mr Lemonde said Wednesday that judicial investigators had been waiting to publish the motion with the prosecution’s response, which has not yet been received.
“We intend to make the application public but it contains certain references to investigations which must be redacted beforehand,” Mr Lemonde wrote in an e-mail.
“I am not sure that those who feed this kind of leak under the cover of ‘transparency’ are truly concerned for the good administration of justice.”
At the trial, Duch stated on April 7 that the confessions obtained at the prison were “probably 40 percent true.” He has also agreed with prosecutors’ allegation that the S-21 confessions contain detailed information about “all levels of the party and of all administrative units.”
Other confessions implicate Nuon Chea. In a March, 1977 document held by the Documentation Center of Cambodia, a person identified simply as Kol, directly addressed Pol Pot, Nuon Chea and Eastern Zone Secretary Sao Phim in his confession.
“I would like to hand over my life to the party,” Kol stated in the “confession.”
Prosecutors have relied on S-21 confessions in their initial 2007 allegations against all of the courts five detainees, and in opposing a request for bail for Ieng Thirith, prosecutors in February this year argued that she had sent her subordinates to S-21 and monitored their confessions under torture.
In their motion to suppress the S-21 confessions, Ms Ellis and Mr Phat Pouvseang cite terrorism cases in German and British courts that voided torture-obtained evidence.
They also take issue with a 2007 monograph written by Michael Scharf, director of the Frederick Cox International Law Center at Case Western Reserve University in the US.
Scharf, who participated in training sessions at the Khmer Rouge tribunal, argued that the confessions are “critical” to the successful prosecution of the Khmer Rouge and should therefore be allowed under the legal doctrine of necessity, which holds that states can depart from the law when no other options are available.
Both the US and Israel have cited this doctrine to extract information from terrorism suspects, according to Scharf.
“If the doctrine can be used to justify the use of cruel, inhuman, or degrading interrogation techniques in compelling circumstances, then it should follow that it can be used to permit the admission of evidence derived from such interrogation techniques where reliability is not in question, the evidence being used against the leaders of the regime that committed the brutal acts,” Scharf wrote.
Yuval Ginbar, Amnesty International legal adviser for Asia-Pacific and author of the 2008 book “Why Not Torture Terrorists?” said Monday the prohibition on the use of torture by courts cannot be circumvented.
“The injustice of torture cannot, by that very fact, be part of a justice process,” he wrote in an e-mail. “Trying to justify the use of statements obtained by torture as the only way to ‘bring justice’ is not dissimilar to the attempts to justify torture itself as the only way to, say, save innocent civilians from terrorist attacks.”
“Torture is the willful choice of pain as a tool against a human being and the choice of a human being as a tool of the state for its own purposes,” Ginbar wrote. “This is the essence of tyranny. It must never see the light of day in a courtroom as part of legitimate criminal procedures.”
In 1992, Cambodia acceded to the 1984 UN Convention Against Torture, which prohibits the use of evidence arising from torture “except against a person accused of torture.”
Human rights monitors have consistently accused Cambodian authorities, in particular the police, of resorting to torture, and in 2003, a UN body monitoring compliance with the convention called on Cambodia “to ensure that evidence obtained under torture is not invoked in court.”
Youk Chhang, director of the Documentation Center of Cambodia, said the confessions were not entirely unreliable.
“There is truth in the confessions. People were telling the truth in hopes of sparing their lives,” he said. “They forced you to believe your own lies and then used it as an excuse to kill you. There’s historical fact in that.”