Witnesses’ Well-Founded Suspicion

The Office of ECCC Co-Prosecutors recently (re)-issued an assurance of non-prosecution (‘the Assurance’) which it uses as a tool of witness protection. The Assurance has been in place, in one form or another, throughout these proceedings but has failed to have the intended effect (while this observation is naturally subjective, very few testimonies in this and the previous case felt as if witnesses had nothing to hide). Cambodians are hardened by decades of mistrust towards their government and their fellow-countrymen. This mistrust over decades has helped create an ‘anything but the truth’ principle of citizens’ interaction with their government. It is a well-established fact that the application of that principle helped those who fabricated their biographies during the regime which this process was established to prosecute. Living by that principle has helped those in Cambodia who have applied it since the fall Democratic Kampuchea too. Rewards for telling the truth have been close to nonexistent while the benefits of not telling it have been abundant.

The question I pose here is whether witnesses should take the Co-Prosecutors’ assurance of non-prosecution as a break from the decades of Cambodian history which have encouraged not telling the truth. Let’s take a closer look at the content of the Co-Prosecutors’ Assurance.

The Co-Prosecutors state that the Assurance covers the period of temporal jurisdiction of this Court. This would be fair enough if in the course of these proceedings witnesses were not asked questions regarding periods far preceding the beginning of the period of temporal jurisdiction and at times the period following its end. We saw an abundance of these questions in Case 001 and we see even more now in Case 002. As such, it would have been fair for counsel who assist witnesses to instruct them to refuse to answer any questions pertaining to events outside the temporal jurisdiction of the ECCC on the ground of not being protected by the Co-Prosecutors’ Assurance (or use the right to remain silent which although non-existing in Cambodian law has been recognized by this process). Why this has been such a difficult concept and why this has not been done would be my questions.

How is a witness to really know that the Cambodian state will not use the self-incriminating evidence the witness might provide in court to prosecute him or her? The prosecution offers a piecemeal answer to that. It opens with a nonsensical description of the purpose of these proceedings which portrays them as “find[ing] the truth about the events which took place in Cambodia during the period of 17 April 1975 to 6 January 1979”. This statement is misleading as the purpose of this process is to answer the question of whether the persons indicted by this court are guilty of the crimes for which they were indicted. It is not to find the truth about any period (this exercise belongs to the realm of history, not criminal law; while the science of history has been instrumental in this process, history is not the reason why this process was established criminal law is). It is doubtless that the prosecution had every reason to know of the true purpose of these proceedings at the time of giving the Assurance which attests to the deliberateness of misleading information provided. The prosecution proceeds with another attempt to put witnesses at rest. This time it is a statement that “[t]he ECCC is currently the only court of law in Cambodia which has prosecuted persons who are suspected of committing crimes during this period”. What the prosecution implies here is that they are the only ones who can indict for crimes within this period and they promise that they will not. Of course, adroitly, the prosecution inserted the word “currently” to essentially say that yes, right now it is the only court and we are only giving this assurance for right now and are not saying that there definitely will be no process sometime in the future, near or remote, which will prosecute you for what you are going to tell us now. The prosecution then reaches for another facet of this process which is the personal jurisdiction which is limited to “senior leaders of Democratic Kampuchea [and] those most responsible for the crimes committed during that period”. Here, the prosecution is saying, look, you are not going to be prosecuted because you probably do not fall within either of these categories. What the prosecution does not tell witnesses in the Assurance is that there is a very permissive definition of ‘senior leaders’ and ‘those most responsible’ (and the manner in which they interpenetrate) crafted by the Supreme Court Chamber in the Appeal Judgment in Case 001. Once this definition is explained to the witness, his or her willingness to answer questions is likely to wither.

The upshot of this Assurance is this: (1) the Co-Prosecutors only speak for themselves and not for the prosecutors of the entire Cambodian judicial system; (2) the Co-Prosecutors guarantee immunity from prosecution only for the period of temporal jurisdiction of the ECCC; and (3) the Co-Prosecutors only assume that none of the witnesses belong in the personal jurisdiction of this Court.

One might argue that the dangers for witnesses outlined here are remote. One might even refer me to the massive sandbagging of Cases 003 and 004 done by the Cambodian government. One might point out that the possibility of the international community continuing to pay for this process for another 5-6 years is remote. All these would be fair points. I would counter them with a batch of mine, however. When Ieng Sary was negotiating the terms of his surrender in 1996, did anyone think that there was any possibility of this process? Did Ieng Sary? Probably not. Otherwise, he would have probably negotiated more inclusive language of the pardon. When the ICTY was established in 1992, did anyone think it would prosecute people of as low rank as Dusko Tadic (who had no military rank of any kind)? Did anyone think that the ICTY would become an endless project now facing the possibility of outliving (and having outlived some already) the initial bench? Of course, not. Did anyone think that there would be a national component to the ICTY prosecutions orchestrated by the ICTY? No, again. Why are the Co-Prosecutors so sure that no Khmer Rouge trials will commence following the completion of the ECCC process? The answer is that they are not. They just wanted witnesses to be for the prosecution to get convictions and the witnesses are not buying it. The Cambodian witnesses testifying before the Trial Chamber do not have a complex understanding of the Assurance but they know one thing: truth bad, lies good. Who can really blame them.