For people like Ek Un, 70, whose husband was killed by the Khmer Rouge, the leaders of Angkar were the most powerful people in the world, everywhere and nowhere at once.
The first thing she wonders about when she considers testifying at the Khmer Rouge tribunal is security.
“I’m concerned about my security, and whether suspects will try to hurt me,” she said in an interview at her Kompong Thom province home earlier this year. Her son, Thun Serei, 44, chimed in: “I don’t believe in the security.”
With the detention of S-21 chief Kaing Guek Eav, aka Duch, and Brother Number Two Nuon Chea by the Extraordinary Chambers in the Courts of Cambodia, the faceless villains allegedly responsible for Ek Un’s suffering are finally becoming real.
But despite a recent flurry of planning, the tribunal has yet to put in place a comprehensive system of witness protection—even though witness interviews have already begun.
“At other tribunals, witnesses have been threatened or even killed. It’s important you get this right so witnesses can give evidence freely,” ECCC Principal Defender Rupert Skilbeck said.
Last month, Wendy Lobwein, who has 11 years of experience in witness protection at the International Criminal Tribunal for the Former Yugoslavia, finalized her recommendations on how to improve protection at the ECCC. Those recommendations have not been made public.
Lobwein, who the court brought in as a consultant in July, says testifying in any court is, at heart, an act of courage.
“The Pope got shot,” she said. “I can’t guarantee you’re going to get home alive today. It’s about minimizing risk. In war crimes, the crimes are so grave, witnesses take the risk. The drive to have justice is extremely strong.”
But keeping people safe and anonymous in Cambodia might be tricky for several reasons.
“Information is spread here by talking. Keeping a name out of a newspaper won’t have the same effect,” she said. It’s unclear how far the easy, established systems for offering witnesses anonymity—like disguising voices or faces during testimony, using pseudonyms, and keeping people’s real names out of court documents, all of which are allowed at the ECCC—will go to keep people safe within the fishbowl that is village life.
Some have criticized the very foundations of the court’s witness protection infrastructure. The agreements that established the court make the government responsible for ECCC security, including the safety of witnesses and the accused, with two exceptions: the UN is responsible for security on tribunal grounds, and for providing international personnel with bodyguards.
But in Cambodia today, as in other post-conflict countries, some say they just don’t trust government authorities to keep them safe.
A former close aide to Pol Pot, who spoke on condition of anonymity, said he had no confidence in the government’s ability to protect witnesses whose testimony he said could implicate government officials, as well as the nation’s international allies.
“No one dares to say or point at anyone who is now in a high government position. We are already frightened,” he said.
He fears security will only be effective on the court’s premises. “Outside the court’s compound, how can they assure us we have no problem?” he asked. “A protection team can’t follow us all the time.”
Deputy National Police Commissioner Mao Chandara, who also serves as the ECCC’s chief of security, said he was duty-bound to protect both witnesses and defendants. He took issue with critics, saying that doubters need look no farther than the nation’s safe streets for reassurance.
“I would like to ask who are they who express no confidence in our authority? They are living in Cambodia or overseas? Who abused them? Cambodians can travel freely at night, wherever they want to go. These people just criticize,” Mao Chandara said.
Skilbeck said the court can provide physical protection before, during and after testimony, but added that at other courts, some witnesses have preferred to opt out of government-backed security measures. “Some witnesses prefer to rely on their own networks to protect them rather than the government,” he said. “This is no comment on the Cambodian government,” he added.
He said, however, that he’s concerned about the longevity of protection measures. “You’ve got to have arrangements for witness protection after the trials. Once the UN leaves and goes home, these witnesses will have to stay and live in Cambodia. They won’t have the UN to look after them,” he said.
In a confidential June report, two UN experts recommended shifting responsibility for witness protection to the UN’s deputy director of administration from the Cambodian-led court management section, which it said was “not operationally effective.”
The section chief, they wrote, demonstrated “an apparent complete lack of understanding of the responsibilities vested in him and his colleagues.”
Kranh Tony, the chief of court management, said he believes responsibility for witness protection should stay with the Cambodian side of the court. “It’s about legacy,” he said. “In Asian countries, there are only a few countries that have witness protection. We want to have something after the court.”
He added that the report’s criticism of him was “unfair.” “It’s not fair in that report to attack personally. They see me less than two hours,” he said.
The tribunal’s UN Public Affairs officer, Peter Foster, said that the tribunal must operate within its existing legal structure, which confines the UN to providing “assistance, advice, and support when requested and required” on security issues. He added that the court is considering how to improve witness protection within a broad package of reform and fundraising.
Some things have already been accomplished, Lobwein said. The court has made arrangements with the Transcultural Psycho-social Organization, a local NGO, to provide witnesses with additional psychological support. And it has been agreed that witnesses will be compensated $5 per day of testimony, to make up for lost income. Their expenses will also be covered while in Phnom Penh.
But since Lobwein left, late last month, the ECCC’s witness and expert support unit has been operating without a leader, and it remains to be seen what shape the recommended reforms will take.
At the moment, the court has a 30-man special task force, comprised of Ministry of Interior police, to help with witness protection, Lobwein said. She said it is standard for international criminal courts for other post-conflict countries to work with local police to provide protection, but added that if witnesses in Cambodia don’t want to deal with police, they don’t have to. She added that the court will work with individual witnesses to determine how to keep them most safe.
“Individual witnesses can often tell us what will keep them safest,” she added. “It will depend here on understanding from witnesses what will look most concealing for them.”
She emphasizes that witness protection at the Yugoslavia tribunal was a work in progress, too. “I’m not seeing anything different here,” she said, adding: “I’d like to be able to say the capacity exists…. Hopefully, it’s coming. We haven’t been tested yet.”