Charging that the Khmer Rouge tribunal has employed “feeble excuses” to avoid questioning retired King Norodom Sihanouk, along with Prime Minister Hun Sen and six other senior members of the ruling CPP, defense lawyers for genocide suspect Ieng Sary lodged an appeal on Monday asking the court to compel the witness testimony.
The government reacted harshly last year to summonses issued by the tribunal to the presidents of the Senate and National Assembly, the ministers of Finance and Foreign Affairs, and Senators Ouk Bunchhoeun and Sim Ka, all of whom the court believes have relevant knowledge of the Khmer Rouge regime but have declined to be interviewed.
The question of whether to summon high-level witnesses has already divided the tribunal’s co-investigating judges, who disagreed in July over the need to summon six of the high-profile witnesses, requiring the tribunal’s Co-Investigating Judge Marcel Lemonde to act alone in summoning them.
Phay Siphan, spokesman for the Council of Ministers, which negotiated the tribunal’s establishment with the UN, said yesterday that the government is required to comply with the tribunal by law. However, Mr Siphan said the initial summonses were issued in September by a single judge, Judge Lemonde, and may not have legal force, as the tribunal claimed.
“That’s the way I feel. It has to be from the ECCC officially as an organization, not one judge or person,” Mr Siphan said, adding he believed it was neither necessary nor fair to include the testimony of prominent victims, who may bring little new evidence to light but will be obviously biased against the accused.
“What do they expect from [Foreign Minister] Hor Namhong, from [Senate President] Chea Sim? They defeated the Khmer Rouge,” Mr Siphan said.
“Let a third party take care of that much better,” he said.
The defense lawyers’ request to compel the prominent witnesses to testify is now before the court’s Pre-Trial Chamber, which has frequently differed with the views of the co-investigating judges.
Both Co-Investigating Judge You Bunleng and Judge Lemonde agreed in January that, as he reportedly fled Cambodia in mid-1977, Mr Hun Sen would have little knowledge of the bloody 1978 purge of the Khmer Rouge East Zone, where he had been a Khmer Rouge military cadre. Judge Bunleng also resisted summoning the six other CPP witnesses and retired King Sihanouk, saying their testimony was unnecessary and unlikely to be useful.
In a separate note to all parties, Judge Lemonde on Jan 11 said the six witnesses’ testimony was “necessary” but could not be compelled due to “considerable practical difficulties.” Judges at any future trial at the Khmer Rouge tribunal may consider trying to force these witnesses to comply, he wrote.
In their appeal on Monday, Ieng Sary’s defense lawyers Michael Karnavas and Ang Udom said Judge Bunleng was wrong to hold that only some relevant evidence was necessary to the tribunal. Judge Lemonde was also wrong, they said, to find that necessary evidence could be sacrificed before all means to obtain it had been exhausted.
“[W]here one co-investigating judge is convinced of the evidence’s conducive value to ascertain the truth, the subsequent exclusion of such evidence, without reasonable justifications, both legally and pragmatically breaches the fundamental obligation of the [judges] to thoroughly conduct this investigation,” the defense lawyers wrote, adding the witnesses were “clearly in violation” of the law and should enjoy no parliamentary immunity under international law.
While ordinary witnesses have received summons marked with the words “may be compelled to appear by public force,” government witnesses had instead been the subject of Judge Lemonde’s “comparatively weaker course of action,” they added.
“All requested witnesses must be treated the same, regardless of their pedigree, denomination or seniority,” the defense wrote.
The retired King “was a key political figure” in the establishment of the former regime who may have knowledge of Ieng Sary’s actions in allegedly facilitating Khmer Rouge crimes, they wrote.
They also claimed Mr Hun Sen will have knowledge of the East Zone and that National Assembly President Heng Samrin, as the zone’s third-ranking military commander, is relevant to evaluating prosecutors’ allegations of violence against Vietnamese people.
Senate President Chea Sim administered the zone’s region 20 in Prey Veng province and he should be interviewed to ascertain whether orders were given by the central government in Phnom Penh for the killing of “thousands” of deportees from Cambodia’s cities and towns who were sent to the province, the defense said in their appeal.
According to the defense, Mr Bunchhoeun may also have knowledge of the East Zone’s operations, while Mr Namhong and Finance Minister Keat Chhon were privy to the operation of Ieng Sary’s Foreign Ministry in Phnom Penh and the treatment of intellectuals at the Boeng Trabek prison camp, where Mr Namhong was also a prisoner.
According to records kept by a clerk at the tribunal that describe attempts to serve the summonses on the six witnesses, the summonses were simply ignored.
The clerk wrote in a Jan 11 report on serving Mr Sim Ka, a CPP Senator, with the summons on Sept 25: “The witness Sim Ka was in his garden (about 30 meters from the entrance) and we saw him open the envelope containing said convocations and letter.”
Sok Sam Oeun, executive director of the Cambodian Defenders Project, said yesterday that the public could hold those who refused to comply accountable if they weakened the prosecution’s case against senior Khmer Rouge leaders by failing to provide necessary evidence.
“If they deny to give testimony and then the court finally decides to acquit the accused, it means the people may blame them,” he said.