‘Torture-Tainted’ Evidence at Center of KR Tribunal Debate

Defense lawyers for Nuon Chea argued at the Khmer Rouge tribunal on Monday that evidence obtained through torture should be admissible in the second phase of Case 002, under certain circumstances.

Opening a morning of oral submissions on the topic, international co-prosecutor Nicholas Koumjian argued that any information obtained through torture was unreliable and asserted that the regime’s former second-in-command was attempting to use “torture-tainted evidence” as propaganda.

“[W]hat we find offensive is that Nuon Chea is attempting to take statements from people who were electrocuted, who were starved, who were beaten and…present it to the public as ‘This is evidence that our regime had enemies, that all these people we killed, we had a right to kill them because they were KGB, CIA, Yuon spies,” Mr. Koumjian said.

“What he’s wanting to do is to use the torture evidence for exactly the reason that they tortured the people in S-21,” he said in reference to the Tuol Sleng security center.

The U.S. prosecutor also cited Nuon Chea’s admission to journalist Thet Sambath, recorded in his book “Behind the Killing Fields,” that people “usually confessed when beaten painfully and seriously tortured.”

In response, Victor Koppe, defense lawyer for Nuon Chea, accused prosecutors of “riding a moral high horse” on the issue and claimed it was not possible to label all information obtained by torture as unreliable.

“There is an absolute prohibition on torture…saying that under certain circumstances it is justified I would argue is an American argument, an argument recently made by [U.S.] Minister of Defense [Dick] Cheney when it comes to certain prisons,” he said, in what appeared to be a veiled dig at U.S. members of the prosecution team.

Mr. Koppe criticized the prosecution for their “double standards,” pointing to the submission of a S-21 confession from former North Zone deputy secretary Chom Chan as evidence by the prosecution.

He then cited passages by scholars David Chandler and Stephen Heder who argued that, through careful analysis, some statements obtained under torture could be taken at face value.

“Chandler and Heder are basically formulating our position: you should be very careful, but under certain circumstances certain parts of confessions could be used —not necessarily as evidence of guilt or innocence but in terms of questioning the witness,” Mr. Koppe said.

“We are using confessions ultimately to find corroboration in respect of our big narrative, the most important part of our defense, that two equally strong, opposing factions were within the Khmer Rouge fighting each other,” he added.

Anta Guisse, defense counsel for former regime head-of-state Khieu Samphan, stated that evidence obtained through torture should not be allowed under any circumstances.

Hearings continue Tuesday.

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