VZCZCXRO9978
RR RUEHCHI RUEHDT RUEHHM RUEHNH
DE RUEHPF #0497/01 1981012
ZNR UUUUU ZZH
R 171012Z JUL 09
FM AMEMBASSY PHNOM PENH
TO RUEHC/SECSTATE WASHDC 0955
INFO RUCNASE/ASEAN MEMBER COLLECTIVE

UNCLAS SECTION 01 OF 02 PHNOM PENH 000497 
 
SENSITIVE 
SIPDIS 
 
STATE FOR EAP/MLS, P, D, DRL, S/WCI 
 
E.O. 12958:  N/A 
TAGS: PGOV PHUM KJUS PREL EAID CB
SUBJECT:  Khmer Rouge Tribunal:  The Trial of S-21 
Interrogation Center Head Kaing Guek Eav, Week 12 
 
REF: PHNOM PENH 472 AND PREVIOUS 
 
¶1.  (SBU) SUMMARY:  Embassy staff routinely observes the proceedings 
of the trial against the notorious Khmer Rouge torture center head, 
widely known as Duch, at the Extraordinary Chambers in the Courts of 
Cambodia (ECCC) (Reftel).  This report summarizes the twelfth week 
of activities inside the court at the Khmer Rouge Tribunal.  More 
technical accounts of the proceedings can be found at: 
www.csdcambodia.org; www.kidcambodia.org and at 
http://socrates.berkeley.edu/~warcrime/. END SUMMARY. 
 
¶2.  (SBU) The court seemed unprepared to handle issues of 
self-incrimination this week, and translation continued to be a 
problem.  The majority of the week was dedicated to questioning 
witnesses who were staff members at S-21.  This was a marked change 
from last week's emotional and at times confusing testimony by civil 
parties.  Civil parties appear at the trial upon the request of 
their lawyers, are not required to take an oath, and are eligible 
for moral reparations.  Witnesses, however, are summoned by the 
Chamber to testify and must take an oath before appearing in court. 
The Witness and Expert Support Unit (WESU) provides support to 
witnesses to prepare them and ensure their safety, however it 
appeared that legal representation and protection specifically for 
perpetrator witnesses has been overlooked.  On two occasions this 
week, perpetrator witnesses entered the courtroom without having a 
lawyer present, and seemingly without having had the opportunity to 
discuss their testimony in detail with a lawyer prior to arriving at 
court.  After lengthy and often heated debates on the right against 
self-incrimination and Joint Criminal Enterprise (JCE), witness 
testimony was postponed both Monday and Wednesday in order for the 
perpetrator witnesses to meet with a court appointed lawyer and be 
adequately advised of his rights.  The prosecution informed 
co-investigating judges that it would not prosecute the perpetrator 
witnesses who were in court this week.  However, this representation 
only protects them from prosecution at the ECCC - they could still 
face prosecution in a national court.  Because of this, and possibly 
due to age, insufficient memory, or emotional denial, one 
perpetrator witness, Mam Nai, declined to answer many of the 
questions posed to him by the court. 
 
¶3.  (SBU) Herewith are observation notes from the testimony of Mam 
Nai on July 15, 2009: 
 
In contrast to previous weeks, the civil party gallery was full. 
The audience was also close to capacity.  Three to four busloads of 
people came from Kampong Cham to view the proceedings.  There were 
also many foreigners and two monks in the audience. 
 
The first part of the day went by slowly.  Mam Nai, a 76-year-old 
former interrogator at S-21, had to be reminded on several occasions 
to wait for the red light on his microphone before speaking.  The 
translator seemed to miss portions of the questioning by the 
international co-prosecutor and especially had difficulty with 
numbers.  This became quite tedious as the prosecution as well as 
the civil party lawyers requested countless documents to be shown on 
screen, and each document had a long serial number attached to it 
which must be read out.  The audio-visual unit was slow to produce 
the requested material on screen, possibly due to errors in 
translation.  These delays are significant in that the prosecution 
and defense are only allotted one hour each for questioning, with 
civil party lawyers limited to twenty minutes per group. 
 
During the course of the day, Mam Nai refused to answer many of the 
questions and seemed to have a case of selective memory for those he 
did answer.  He was asked repeatedly by the prosecution as well as 
civil party lawyers about Professor Phung Thon, whose wife and 
daughter were in the civil party gallery and whose confession was 
signed by the witness.  Mam Nai, however, maintained he did not use 
torture in his interrogation sessions and had no idea of what 
happened after the accused parties left his room.  When asked if he 
regretted his role in S-21, he stated that he had some regrets, but 
only for the "small group of good people who died, but I have never 
been regretful for all the bad people who were killed."  This and 
his response that he had no knowledge of how many people died at 
S-21 or under the Khmer Rouge regime elicited gasps of astonishment 
from the audience.  It was at this point that the International 
Defense Counsel, Francois Roux, sarcastically thanked the 
prosecution for calling the witness and said if the prosecution had 
any further witnesses like this one they should not hesitate to call 
them. 
 
It has become customary at the tribunal for Duch to make 
observations at the end of the questioning of civil parties and 
witnesses.  Today, he used his time to stand up and chastise Mam Nai 
for worrying about himself and failing to tell the truth.  Accented 
with hand gestures and much finger pointing, Duch lectured Mam Nai 
to take responsibility and "tell the truth!  You cannot use a basket 
to cover a dead elephant."  When the cameras turned to Mam Nai, he 
appeared to be smiling during Duch's outburst, causing a buzz among 
 
PHNOM PENH 00000497  002.3 OF 002 
 
 
the audience.  However, when given the chance to speak again, Mam 
Nai broke down in tears and stated he was "remorseful." 
 
Throughout the day, Roux and international co-prosecutor William 
Smith seemed particularly combative toward one another.  After going 
back and forth about the JCE and self-incrimination for the third 
time in one day, Judge Nil Non finally told them to not bring it up 
in public again, stating that if they continued to do so, witnesses 
will invoke silence more often and it will be more difficult for the 
Chamber to get to the truth.  When the second witness of the day, 
Him Huy, was called, Judge Non made sure he was aware of his rights 
and then asked if he required counsel prior to the proceedings. 
When Him Huy stated he would like counsel, Judge Non stated that a 
lawyer would be appointed to provide him guidance and adjourned the 
trial early. (COMMENT: Given that the same situation occurred on 
Monday, it is surprising that the WESU did not think to inquire 
whether the second scheduled witness would want to consult a lawyer 
as well and arrange it in advance of today's proceedings. END 
COMMENT.) 
 
Rodley