In a warning to the Khmer Rouge tribunal this week, three international human rights organizations, including a global committee of legal scholars, urged the court not to circumvent the international ban on the use of torture evidence, including the 5,000 so-called “confessions” extracted under torture at Tuol Sleng prison.
In a friend-of-the-court brief published Tuesday but which the court has not yet accepted, Amnesty International, the Redress Trust and the International Commission of Jurists, a group of 60 jurists headquartered in Geneva, said the ban on the use of evidence extracted under torture was not open to re-interpretation.
Lawyers for the Khmer Rouge regime’s former Social Action Minister Ieng Thirith, 77, who was charged two years ago with crimes against humanity, are seeking to overturn a July decision by the tribunal’s investigating judges who found that the contents of the Tuol Sleng confessions may be selectively used in their investigations. Ieng Thirith’s defense team has argued that because the confessions were extracted under torture, they cannot be used as evidence against their client.
“The prohibition on the use of the contents of a statement obtained by torture as a source of information for courts to consider is absolute, reflecting as well as supporting the absolute prohibition on torture itself,” according to the Sept 25 brief, signed by Redress Director Carla Ferstman, ICJ Senior Legal Adviser Ian Seiderman and Widney Brown, senior director for international law at Amnesty International.
In 1992, Cambodia acceded to the 1984 UN Convention Against Torture, which prohibits the use of torture-obtained evidence with the sole exception that it may be used against persons accused of the torture “as evidence that the statement was made.”
The brief’s authors say they are not opposed to the use of torture evidence against alleged torturers’ superiors, who may have ordered it, or their accomplices.
But the use of the contents of such evidence is prohibited for any reason, according to the authors of the brief, who say that the convention places clear limits, not only on people against whom the evidence may be used, but also on the manner in which such evidence may be used.
In their July decision, Co-Investigating Judges Marcel Lemonde and You Bunleng said the tribunal need not be quite so strict in observing the torture convention.
“[T]he spirit of the law must not be overshadowed by the letter of the law,” they said. “A literal interpretation of Article 15 of the [convention against torture] could potentially protect would-be torturers and would therefore encourage, rather than prevent, the implementation of policies of torture.”
In their statements to Khmer Rouge interrogators, Tuol Sleng victims were forced to reveal lists or “strings” of supposed saboteurs and alleged anti-government activists who were themselves then sought for arrest and interrogation.
According to historian David Chandler, Tuol Sleng confessions show that the bloody 1978 purge of over 1,000 people in the country’s Eastern Zone began with the 1976 arrests of a few soldiers suspected of tossing grenades near Phnom Penh’s National Museum and Royal Palace who were then forced to confess by the secret police.
Mr Lemonde and Mr Bunleng said such evidence from the confessions would be used “with utmost caution.”
“As such, the information contained in the confession is not being used for the truth of its contents […] but rather to show how the confession was used,” they wrote.
However, according to Amnesty International, Redress and the ICJ, the prohibition on such evidence “applies both to direct and to derivative information.”
Investigators say evidence indicates that Ieng Thirith sent her subordinates to Tuol Sleng and monitored their confessions under torture.
However, the apparent exceptions to the torture convention cited by the tribunal’s co-investigating judges were expressly rejected by the convention’s authors, according to the brief.
The UN convention against torture in draft form was modified in 1978 such that the use of torture evidence was restricted to proving only that torture occurred, nothing more.
All efforts to weaken these restrictions “have failed,” the brief states.
Michelle Staggs Kelsall, a court monitor for the Asian International Justice Initiative, part of the East-West Center at the University of California, Berkeley, believes that the brief ’s authors had failed to discuss the context of trying the Khmer Rouge 30 years after the fact.
Many witnesses and suspects are no longer available, she wrote in an e-mail.
“They did not appear to address directly how this should be dealt with: what do we do in a situation where over 30 years have passed? How do we obtain leads when so many of the ‘insiders’ are dead?” Ms Kelsall asked.
Analysts say the Tuol Sleng confessions, which were largely extracted under torture by the secret police and constitute the bulk of Khmer Rouge intelligence gathering, may be crucial to successful prosecutions.