At 9 a.m., Judge Nil Nonn began today’s hearing, in which the prosecution will continue their rebuttal. The Greffier confirmed all parties are present, except for Nuon Chea who has waived his right to be present in the courtroom and is following the proceedings remotely.
Judge Nonn gave the floor to the prosecution.
Co-Prosecutor Nicholas Koumjian greeted all present and recounted how yesterday he had discussed how under international law, it is impossible for defense to justify a single detention without legal process, a single torture of the victims of the Khmer Rouge, or a single extrajudicial execution that took place throughout the country, including the security centers, cooperatives, and worksites charged in this case.
He noted that the Nuon Chea defense has claimed that they have rewritten history by explaining that the CPK was riven with factions that were intently and actively engaged on overthrowing Pol Pot, Nuon Chea, and Khieu Samphan. In addition to being legally irrelevant, Nuon Chea’s version of history is simply untrue. It is the “fake” history the Khmer Rouge tried to sell to the world and the Cambodian people at the time to justify their rule. Mr. Koumjian will review details today of what the defense cites as evidence for these events and the prosecution will show that their case is illogical, speculative, and based on confessions obtained as a result of torture.
The prosecution has no reason to deny a resistance movement within the Khmer Rouge, as it would have no effect on the case. If people did resist the Khmer Rouge regime, there would be no reason to deny it today. He gave the example of other oppressive regimes, such as in Nazi Europe, where after the regime ended, people who resisted the regime were not hesitant to say that they resisted, and even collaborators will say they resisted.
Next, Mr. Koumjian reviewed the primary sources of evidence that Nuon Chea cited in his brief.
First, Mr. Koumjian discussed “Witness 1” who is relied on heavily by Nuon Chea, but who remains anonymous and did not testify in court. Witness 1 claimed that he was part of a plot against Pol Pot and he was detained in Tuol Sleng, without explaining how he survived. He said that in Tuol Sleng the regime planted agents among prisoners. Mr. Koumjian responded that given the conditions in Tuol Sleng, and the witness testimony on Tuol Sleng in this case, there is no evidence that agents would be place among the prisoners.
The main piece of evidence that Nuon Chea cited was that in May 1975, a month after the capture of Phnom Penh, Witness 1 attended a secret meeting in Phnom Penh of 300 cadres from every zone except the Southwest and from all of the ministries plotting against Pol Pot. He claimed that one of the attendees was the head of the ministry of health, Pol Pot’s personal doctor, and that another attendee was the minister of social affairs, the wife of Ieng Sary and Pol Pot’s sister-in-law. Mr. Koumjian found it absurd that there was such a large secret meeting held in Phnom Penh, with these attendees. When Witness 1 was asked if Nuon Chea attended these meetings, he said that Nuon Chea was working with Lon Nol, which actually paints Nuon Chea as one of the traitors to the regime.
The next witness cited by Nuon Chea was Chan Savuth, who was interviewed for the book by Thet Sambath and Gina Chon. Chan Savuth did not testify and could not be located by the Chamber, but there was someone with a similar name who had been interviewed by a foreigner, and both Nuon Chea and the prosecution agreed that this was likely the same person.
This person was interviewed twice by the witness unit. The first time, he was presented with what he had said to Sambath, which was what had been printed in the book, and he said the statement was not true. The second time he was presented with transcripts provided by Lemkin, that record his statements about attending meetings where he was plotting against Pol Pot, and where he names people who were involved. He said he did not attend the meetings or know the people named. This does not help Nuon Chea’s case.
Finally, a review of Lemkin’s interviews of this witness show that they contradict Nuon Chea’s case. Nuon Chea has claimed that all the crimes at Trapeang Thma were committed by Ruos Nhim, who Nuon Chea said had a plan to starve the people to make the regime look bad. In the transcript provided by Lemkin, the witness said that Ruos Nimh planned “the psychology war,” where there would be no smashing even if people were wrong, but that they had to be cold so that the people would love them.
Nuon Chea cited to another witness, Chiel Chhoeun, who testified and contradicted everything that had been written about his involvement in coups against the regime. His testimony was so damaging to Nuon Chea’s defense that Nuon Chea said it must be the wrong person, but the prosecution had videotape of Nuon Chea and Chiel Chhoeun at a videoconference with victims in the United States to confirm that he was the same person. Chiel Chhoeun had been interviewed by Thet Sambath, and in those interviews, Chiel Chhoeun said that he was very sorry the plan was not successful.
Next, Mr. Koumjian discussed Nuon Chea’s claims of three coup attempts against the Khmer Rouge regime. One coup attempt was allegedly an explosion in 1976 in an ammunition dump in Siem Reap. At the time, the radio blamed this on a bombing by the United States, other analysts speculated that was a bombing by Thai or the Vietnamese. Mr. Koumjian said what does not make sense is that Nuon Chea says this was a plot by Koy Thuon to overthrow the central government in Phnom Penh, and asks why would Koy Thuon blow up his own ammunition dump instead of the regime’s ammunition. Now Nuon Chea claims that Koy Thuon was a Vietnamese agent and this was part of a Vietnamese plot.
In the book by Thet Sambath, Nuon Chea discusses the people that the regime killed. Koy Thuon is in the section that details Nuon Chea’s friends who were killed. Nuon Chea says about Koy Thuon that Koy Thuon’s men were arresting Vietnamese soldiers who were bringing goods to Cambodia and it caused tension in an already strained situation. He said that Koy Thuon was trying to make the Khmer Rouge and Vietnamese become enemies. Now Nuon Chea says that Koy Thuon is a Vietnamese agent.
Nuon Chea claims that the next coup attempt occurred on 4:30 a.m. on April 2, 1976, when a grenade exploded near an outside palace wall that was near no one and resulted in no injuries. Yim Sambath was arrested, taken to S-21, “not mistreated,” and confessed to being involved for many years in a plot against the regime and named others.
Mr. Koumjian said that these examples show the regime’s attempt to distort history and spread paranoia to justify killings.
Nuon Chea also heavily relied on witness Sem Om. Mr. Koumjian reviewed the history of Sem Om’s evidence. He was originally interviewed by DC-Cam, where he said that (i) he was a battalion commander; (ii) he provided chilling descriptions of his fighting in Vietnam (including burning houses in Vietnamese village and arresting Vietnamese civilians who were tortured until they confessed to being soldiers); and (iii) he spent a lot of time with “our Samdech prime minister” and confirmed that he meant prime minister Hun Sen. In court, however, he said he was only a platoon commander, that he was never in Vietnam and never even fought in the Vietnamese battlefront, and, finally, the prosecution knows that Voeung was the deputy commander of Division 310 in the Central Zone, and that Hun Sen served in the early years in the DK regime and the civil war in the East Zone. So Sem Om exaggerated his rank, battlefield experience, and his relationship with the prime minister.
With resistance to regime, Sem Om told DC-Cam that he knew the regime clearly, but that he could not escape or resist, and that he from day to day he tells his children and grandchildren that they have to be firmly against such a regime and to prevent it from happening again in Cambodia. He said that Oeun was right to resist the regime and that he himself had been ordered to move weapons from where they were placed around Phnom Penh to Kampong Cham where they were to be used to attack the radio station and the airport. Mr. Koumjian wondered why would the resistance send weapons from Phnom Penh to Kampong Cham, especially as was under the control of loyal DK commander Ta Mok, just so they could then attack Phnom Penh?
When Sem Om was asked about Oeun in court, he said he knew nothing about Oeun collaborating with any enemies of the DK regime. He testified under oath that he “never received any direct order from him” referring to Oeun. Sem Om did tell the court that after Oeun was arrested and taken to S-21, Oeun’s confession was broadcast to all of his troops.
There are many secondhand reports from people who said they heard of plots against the regime, but that is not surprising as the regime was constantly saying that there were plots against it and Pol Pot, so it is natural that people repeated the propaganda they heard.
Civil parties lawyer asked Sem Om about his role in the regime, and he said that he was committed to serve the army and as for Oeun, he had no knowledge of his plans. After repeatedly saying he had no knowledge of Oeun or plots by Oeun or direct orders from Oeun, defense played back to Sem Om his statement he gave to DC-Cam about transporting weapons from Phnom Penh. And then Sem Om said that yes, that was what he did. Mr. Koumjian said that his story is not credible.
Next, at one point in the testimony of Duch in Case 002/02, defense counsel put to him Sem Om’s statements and those of others about the Division 310 plot and Duch said “These statements are just surreal and they do not seem to be a concrete plan for a coup d’état at all; I do not believe these statements, not at all.”
Nuon Chea asserts that the last attempt at a coup was in May 1978 by Sao Phim, but Mr. Koumjian stated that the evidence shows the opposite of the defense story.
Long before May 1978, the regime had begun a purge of East Zone soldiers, and Sao Phim had cooperated in that purge. On May 25, 1978, there was a major operation where many of Sao Phim’s forces were arrested and executed. At that point, Sao Phim realized that something bigger was happening. Another witness testified that Sao Phim had written him a letter in which Sao Phim said that it was a coup d’état to overthrow the comrade’s secretary (Pol Pot) and deputy secretary (Nuon Chea) by forces led by Son Sen. Another witness said that he had asked Sao Phim in late 1977, when the East Zone purges were beginning, if Sao Phim thought that Pol Pot was betraying him and Sao Phim said he thought it was Son Sen, and not Pol Pot.
He was so naïve that he, himself, went to Phnom Penh to talk to the leaders directly. As a defense witness testified, if Sao Phim wanted to flee he could have, but he was honest and loyal to Pol Pot and wanted to find out what was wrong.
Mr. Koumjian noted that the people who were being killed were the very soldiers who were fighting Vietnam.
There is other evidence of the real history and it is incompatible with the defense version that large sections of the DK and the armed forces were intent on overthrowing the DK and the center. One example is that Nuon Chea and Pol Pot traveled to zones where they claim the forces were concentrated that were intent on overthrowing them.
These visits included a December 1977 visit to the Northwest Zone that coincided with the middle of Vietnam’s incursion into Cambodia, where Nuon Chea, Pol Pot, Vorn Vet, and an important Chinese visitor were warmly greeted by Ruos Nhim. Mr. Koumjian asked, if there was an open rebellion, why would Pol Pot travel to the heart of the area against him, where he could so easily be killed?
Both Pol Pot and Nuon Chea traveled to the Northwest Zone and the East Zone. One of Sao Phim’s bodyguards testified that not only would Nuon Chea visit the East Zone often, but he would sleep at the headquarters of Sao Phim’s bodyguard. Mr. Koumjian noted that they traveled lightly guarded and were never touched, despite there being ample opportunity to do so.
Mr. Koumjian stated that another piece of evidence that shows the logical flaws of defense’s theory of the zones vying for power and influence is the construction of the center army. During the civil war, all the various forces were part of zone or sector armies. After the Khmer Rouge victory in 1975, there was a reorganization, where divisions were taken from all of the zones, including the Northwest and East Zones, to create the center army. Mr. Koumjian said that the zones would not have given up their own troops to the center army if they were intent on overthrowing the center.
It becomes obvious how illogical these paranoid theories are. For example, six of seven zone leaders, three secretaries of the autonomous sectors, and five of the nine army division leaders were labeled as traitors and killed. From the CPK leadership, the head of Office 870, Doeung, and Vorn Vet were considered traitors. Mr. Koumjian asks how could the Khmer Rouge have won the civil war and maintained power if the majority of those commanding troops were traitors?
Khieu Samphan knew this, he was asked by Steve Heder what percentage of enemy agents were in the senior ranks, and he said less than half of the central committee and but nearly half in the standing committee. Mr. Koumjian noted that this contrasts with Khieu Samphan’s description of standing committee meetings, where he says that “Judging from what I saw during the expanded sessions of the permanent bureau [the standing committee], nothing approaching fear was apparent during these meetings, indeed, the meetings were informal. They were more like a family reunion. Members would often take time out to tell jokes.”
The defense witness on Vietnam and DK relations, Stephen Morris, said that there was no evidence that the people that Pol Pot killed were agents of Vietnam, but rather that they loyally had been carrying out orders from the Khmer Rouge leadership for three years. Sao Phim had been one of the staunchest advocates of attacking the Vietnamese. Even the DK government said, except for May 25, when there was some organized resistance in the East Zone, that there were no pitched battles, they arrested one or two people at a time.
Another witness relied on by the defense talked about Ruos Nhim, and he said he was furious with rue because if he had stood up and resisted there wouldn’t be millions of people killed, and if he did resist, he wouldn’t have arrested his own soldiers.
Mr. Koumjian showed two graphs, one that showed arrests in the East Zone showing that purges began long before May 1978 and that lends support to the claim that Sao Phim cooperated with the purges from the start. Mr. Koumjian also showed a graph for Northwest Zone arrests before June 1978, when Ruos Nhim was arrested, which showed that he, too, cooperated with the purges from the time they started.
A DK document also showed that when Sao Phim went to Phnom Penh to figure out what was going on, he tried to contact with the deputy secretary, Nuon Chea, who refused to see him
Mr. Koumjian asked, how do we know that Vietnamese had not infiltrated the upper ranks of the CPK? Some of the evidence comes from Soviet archives. One report of the Soviet ambassador stated that the leader of the Vietnamese communists called a politician of pro-Vietnam as the occupant of the second-most important post of the party. Speaking of Nuon Chea, he emphasized that Nuon Chea was his man indeed and that he was his friend. This shows how unaware the Vietnamese were, that they thought their good friend in the CPK was Nuon Chea. Mr. Koumjian said it was understandable that they would think that because there was a long connection between Nuon Chea and Vietnam.
Next, Mr. Koumjian touched on the history between Nuon Chea and Vietnam. In Nuon Chea had joined the Vietnamese-led Indochinese communist party, after being recruited by a Vietnamese cadre. He was chosen to go to Vietnam for two years of training. He became part of this movement whose aim was the overthrow of the monarchy and government of Cambodia, and in the 1950s and 1960s, Nuon Chea was cooperating with the Vietnamese do just that.
Nuon Chea had told Thet Sambath that he liked to read Vietnamese books about arrests of party members and torture. He bragged to Sambath that when the Khmer Rouge were in a major offensive on Phnom Penh, he had arranged a meeting with the Vietnamese to make an ammunition request. They met in Sao Phim’s office, and even though there was no translator, Nuon Chea said that he spoke Vietnamese. He told them that the CPK needed to borrow 1 million bullets, and he got them. Not long after the Lon Nol coup, a Vietnamese diplomat explained to a Soviet diplomat the presence of a large number of Vietnamese troops in Cambodia by stating that Nuon Chea had asked for help and the Vietnamese had liberated five provinces in ten days. Back in 1970, Nuon Chea was happy to bring Vietnamese troops into Cambodia.
Mr. Koumjian stated that this review of the fake history was to show what was true and what was not. And even if the fake history was true it would not justify a single detention without legal process, not a single torture, nor a single execution.
Mr. Koumjian argued that perhaps the most telling weakness in Nuon Chea’s brief and argument was the reliance on confessions from S-21 and confessions he acknowledges came as a result of torture. The prosecution position has been, from the start, that every individual at S-21 was subjected to torture. The evidence that Nuon Chea attempts to use is evidence written with the agony of those victims.
Mr. Koumjian referred to the torture convention and the declaration on the protection of all persons from torture to state that there is no state of emergency or war that allows for torture. He described the experience was of people who walked through the gates of S-21, from shackling to hunger to fear to humiliation. Mr. Koumjian also discussed that torture is not restricted to physical abuse, but can include mental abuse and threats, including the threat to one’s family.
Mr. Koumjian gave two examples of a cases cited in the Nuon Chea’s brief in which threats to kill the victim’s family or threats of harm against the victim’s children were found to be torture. Mr. Koumjian noted that the S-21 interrogator’s torture handbook said that torture was inevitable, it was just a matter of a little or lot. It also described how interrogators should psychologically deal with the victims, by “attracting their feelings to revolve around family matters,” specifically their spouses and children. A witness said the technique was to allow the prisoner to think of his wife and children so that the prisoner could give the confession.
Nuon Chea claims that Koy Thuon was not tortured at S-21, but this Chamber has seen the picture of Koy Thuon shacked at S-21. And there is a notation on Koy Thuon’s interrogation report that says, “After the guards handcuffed Thuon, he still tried to write his story further. He asked us to take the handcuffs off, saying three days in handcuffs was enough. I decided not to let him write anymore and handcuffed him for ten to fifteen days because in the past he had fabricated stories to attack the party forces.” So Koy Thuon was
Mr. Koumjian said that no one believes confessions, and not even the Khmer Rouge believed confessions. Nuon Chea said to Thet Sambath that when he read confessions, he found some people not guilty. Nuon Chea talked about a confession from the DK ambassador to the U.N., saying he did not believe it. He also told Duch to bury any confessions that implicated Khieu Samphan. Even Pol Pot said that some people accused of being part of the CIA or KGB were innocent and only confessed because they were tortured. Some said they were CIA before they were born.
Mr. Koumjian noted that defense has asked the Chamber to reconsider their decision on a document that is a 1990 speech by Stephen Heder, and noted that the prosecution has never had an objection to it. The defense maintains that the document will support their claim that confessions can be relied upon. Mr. Koumjian quoted the relevant portion which stated “most of the supposed evidence of the alleged treason of those detained at S-21 disproves such allegations. In other words, the evidence deduced by the interrogators to substantiate the allegation that those detained were agents of the CIA or Vietnamese in fact demonstrates the opposite.” He also states that idea of a pro-Vietnamese faction within the DK was a fiction that was circulated by both the Khmer Rouge and the Vietnamese because it served both their interests.
Mr. Koumjian asked, why did the Khmer Rouge torture? It wasn’t to get a confession to take to court, because there was no court. They were going to kill everyone in any event. They tortured for political reasons, to try to justify their regime, which is what Nuon Chea is doing now. The torture convention prevents the use of torture in a court of law for two reasons: first, it is inherently unreliable, and second, allowing torturers to use that evidence only encourages more torture. Nuon Chea should not be allowed to try to profit of the blood of those who were tortured at S-21 and other security centers.
Mr. Koumjian notes that Nuon Chea even relies on the confession of Ya, the Northeast Zone commander. The S-21 report for Ya’s interrogation states that he was lashed with switches morning and evening on the order of Angkar (and Nuon Chea supervised S-21). In addition, Ya’s wife had just delivered a baby and he was told that kind of statement to make him think about the welfare of his spouse.
Mr. Koumjian asked, if there was no CIA, KGB, or Vietnamese infiltration into the CPK, who were these killings designed to protect? The Khmer Rouge was a failing and unpopular regime. Pol Pot told Danish communists in a July 1978 speech that the leadership apparatus must be defended at any cost and there can be no comparison between losing two or three leading cadres than losing two or three hundred members. Mr. Koumjian proposed that the gang of three, Nuon Chea, Khieu Samphan, and Pol Pot were the two or three leading cadres to whom Pol Pot referred.
Next, Mr. Koumjian discussed how both Khieu Samphan and Nuon Chea were aware of the crimes. This is important because international law says “the information that Accused receive during a period in time is an important element for the determination of responsibility because knowledge combined with continuing participation can be conclusive to a person’s intent.” And in Popovic, “it has been established that for a conviction under JCE, you can infer a person’s knowledge combined with continuing participation in the crimes.”
Mr. Koumjian played a video that showed Nuon Chea, who was asked when did you realize that the villagers were being killed? He responded, I can’t really remember the exact moment, I just went on with my work. I didn’t jot it down. Mr. Koumjian noted that Nuon Chea laughed after he said he did not jot it down.
Lastly, Mr. Koumjian played a last video that showed a video of a survivor of S-21 talking to one of the torturers, and she tells of how she was assigned to defecate in the operating room and on the food in a hospital to ruin the reputation of the hospital. And her interrogator is asked if he believed if sabotage happened, and he said when he saw it, he believed it. He said that he gave her three targets, CIA, KGB, and Vietnamese enemy and she chose CIA, so he interrogated her along those lines to discover her network and sabotage activities at the hospital. And she was only 19. She had not gone to school, so he wrote her confession and embellished it. And when Duch received the document, he made no comment.
The Khmer Rouge didn’t kill to protect Cambodia, or they would not have killed children or starved and weaken their people. The Khmer Rouge only weakened Cambodia and it is still recovering today.
The Accused are not heroes or patriots, they are criminals and they should be held responsible for their crimes.
After the mid-morning break, Assistant Prosecutor Dale Lysak continued the prosecution’s case.
Mr. Lysak started with some general observations on the last seven days. He noted that trials are a truth-seeking process, the Chamber has heard vastly different accounts, and the differences could not be more stark. The prosecution and civil parties tried to present the most powerful evidence that they believe prove the crimes and the defendants’ responsibility. The Chamber heard witness testimony from civil parties and experts, contemporaneous documents, and statements of the Accused. The prosecution focused on the evidence and that is what they did.
Ignoring what had happened in our closing statements, the Nuon Chea defense said the prosecution case was based on out of court evidence and they repeated that untruth continuously for two days. Then we heard their version of the story, which was the crocodile. When they did use sources, they cited to anonymous defectors who spoke to journalists, anonymous witnesses interviewed by Thet Sambath, unknown sources from China and East Germany, people who were not even here in this country, Khmer rouge propaganda, and confessions of S-21 prisoners. This Chamber heard a story based on the most out of court evidence imaginable. The irony was striking. This Chamber’s job is to judge the quality and quantity of evidence you have heard, and I think there is a very clear choice.
What was heard from the defense on the CPK security policy was that the CPK only considered as enemies those who engaged to dangerous activity that was a threat to the regime. The only source for this was the DK constitution, a phony document that the Accused help draft to create a façade of fake elections, a parliamentary body that passed no law, courts that didn’t exist, judges who were never appointment. It was DK propaganda.
This Chamber saw the truth from the minutes from the standing committee meeting, where it shows what CPK leaders really thought about what they had created: “do not let it be seen that we want to suppress, do not speak playfully about the assembly in front of the people, to let them see that we are deceptive, and our assembly is worthless.”
This Chamber heard in this court from two of representatives who were publicly announced as members of Nuon Chea’s assembly, that the assembly never convened to enact any law.
On torture: the defense said the party had clear rules on interrogations, and tried to argue that the word that torture does not mean torture. This was an Orwellian narrative: black is white, two plus two equals five, and torture is not really torture. We don’t have to guess what torture meant in DK, because we heard testimony from survivors of S-21, the head of S-21, and from interrogators about the methods they used, and these methods are recorded in the S-21 documents.
On Kraing Ta Chan: the defense got almost nothing right in its submissions on Kraing Ta Chan, from saying that Meas Sokha was a civil party who gave unsworn evidence, which is simply wrong. They said that Vong Sarun had been treated well at Kraing Ta Chan and released after a week. Here Mr. Lysak played a video of her testimony, in which she was clearly distraught as she said that she was beaten, her baby was beaten in front of her, and she starved herself so her baby could eat. Vong Sarun’s husband was killed at Kraing Ta Chan, her baby beaten in front of her, and she was imprisoned until the very last day, almost a year and a half, assigned to hard labor. When her interrogation was finished she was told that she would work hard until her death and her life was only spared because they needed to enslave us to provide service in the compound.
Mr. Lysak asked, why was Vong Sarun arrested? Because of who she was married to and because a coworker had named her when he was tortured. And she was a witness called at the request of the defense.
The Nuon Chea defense argued that this Chamber should ignore the surviving records from Kraing Ta Chan because they are photocopies, and this Chamber rightly rejected this argument. Defense said that the prosecution did not even bother to authenticate any of the Tram Kok district records they used. Mr. Lysak responded that the Chamber had heard in this courtroom where a Kraing Ta Chan guard authenticated interrogator notebooks because he was in the room with the interrogators and he was responsible for typing up reports. Mr. Lysak then showed four documents that had been authenticated by witnesses or the person whose signature was on them, including the prison chief or other prison guards. The names of officials in the records have been confirmed by witnesses in this court. Mr. Lysak stated that there is no doubt about the authenticity of the records.
On torture at Kraing Ta Chan, the defense asked this Chamber to ignore the evidence of prisoners and cadres who worked near the interrogation hut and saw the tools of torture and heard the screams of victims. The defense wants this Chamber to ignore the documentary evidence confirming the use of hot methods of interrogation.
And defense said that the prosecution’s case was based on out of court witnesses, which is untrue. Defense also claimed that the guards who testified and contradicted Soy Sen undermined some so-called accepted truths of the Manichean narrative including torture of detainees with plastic bags. Except that this claim ignored that the use of plastic bags had been taught by Vorn vet, a zone leader then and who would become a member of the standing committee. This was a form of torture that was used at S-21 admitted by the prison chief and expressly referenced in the surviving documents.
With respect to Kraing Ta Chan, the same was confirmed by Meas Sokha, he was credible and did not overstate what he saw or knew. He testified that he saw a prisoner being interrogated with a plastic bag, who died the next day. Mr. Lysak reviewed additional confirmation of torture by witnesses, and showed an OCIJ map of the prison, describing the distance between the interrogation hut and the guard’s kitchen, which was less than 10m apart.
On executions at Kraing Ta Chan, the defense tried to argue reasonable doubt about executions by attacking the credibility of Meas Sokha and a civil party whose testimony was corroborated by the testimonies of Kraing Ta Chan guards. While there are expected variations in recollections, the substance of the testimony is the same.
The defense ignored the admissions of the guards that nearly every prisoner at Kraing Ta Chan was executed and only a handful survive. They ignored testimony of their own witness, Vong Sarun. They especially ignored the authenticated execution orders that came from the sector secretary, and the authenticated monthly report saying that 92 prisoners had been killed in a November 1977 and a second monthly report for July 1977. And they ignored the fact that the number of prisoners going in to Kraing Ta Chan was less than the number executed each month.
The defense cannot create reasonable doubt by burying their heads in the sand and ignoring credible evidence that the prosecution presented against them.
At Au Kansang, there was a large number of Jarai who were killed. The prosecution submits that the arguments from defense counsel do not accord with the evidence. Defense said it was speculation that the Jarai were killed, but most murders are proved without any eyewitness to the killing. They ignored the admissions of the Au Kansang chief and deputy made in their OCIJ interviews and in this courtroom, that they received orders to kill the Jarai and their admissions that it was carried out. Admissions of serious mass killings are not given lightly or often by perpetrators who were involved in such atrocities. Detainees at Au Kansang also testified that they saw the Jarai brought in and taken out a few days later, and one discovered distinct Jarai clothing scattered around mass graves in bomb craters nearby.
Mr. Lysak next reviewed the evidence on the number of Jarai at Au Kansang. The defense said that the witnesses spoke vaguely about the number of Jarai. Mr. Lysak noted that according to both the chief and deputy chief, there were more than 100 Jarai. A detainee testified that there were truckloads of Jarai. One guards interviewed by OCIJ but who passed away before he could testify said as many as 250. Mr. Lysak noted that when people estimate over 100 people the numbers tend to vary widely, but what is clear is that this was a very large group and it was a mass killing.
Mr. Lysak then reviewed the documentary evidence, including Telegram 07 which refers to 209 Jarai, a telegram seeking instructions from leaders in Phnom Penh on what to do.
One key issue raised by defense was whether the large group of Jarai who were killed at Au Kansang was the same group of Jarai who were reported to the center in the June 15, 1977 telegram. The prosecution submits that it is unlikely that there were two separate occasions where Division 801 captured a large group of Jarai traveling from Vietnam. But even if defense is correct that they are not the same group, then all it would mean is that there were two massacres of large groups of Jarai and not just one.
Mr. Lysak then discussed the timing of the massacre of Jarai, highlighting the more reliable testimony from a witness who had been arrested and released, and cross-examined by defense on the timing of his discovery of a mass grave with hundreds of people, with distinctive Jarai clothing scattered nearby. Mr. Lysak said that a witness is never going to forget coming upon a mass grave with hundreds of people, but a witness is not going to remember if it was jackfruit season at the time.
As to Phnom Kraol, Mr. Lysak said that defense seem to think that the prosecution is incapable of making concessions and they are not. Defense had argued that the evidence for Phnom Kraol is not as strong, and the prosecution does not dispute that. It is not of the same quality as other security centers where there were multiple corroborating witness testimony and documents. Mr. Lysak notes that the prosecution did not argue in their brief that there was sufficient evidence for extermination at this site.
Mr. Lysak said that the defense liked to complain about procedure and not being able to investigate. One of the problems the prosecution faced with Phnom Kraol was that all of the surviving detainees except for two from the K-17 site had passed away. Prosecution looked through the list of civil parties and there was one person who was a possibility to be called. The prosecution had asked the Chamber to call him because he was the last civil party who had been admitted by CIJs specifically in relation to Phnom Kraol, as indicated in the closing order. And he said in his civil party application that he was detained at a prison near a mountain in the district where Phnom Kraol is. The prosecution had hoped that he had been detained at the large Phnom Kraol prison, where hundreds of division 920 soldiers were kept. But that was not where he was detained, which was in a smaller office in the same area. It is for the Chamber to decide whether the location he was detained in is within the scope of this trial. Mr. Lysak would submit that the security operations of sector 105 and division 920 were used interchangeably, so it would be reasonable to conclude that this was part of the network of security offices in that region. Irrespective of your conclusion on that, the Nuon Chea argument that you should just ignore the testimony is wrong.
The Khieu Samphan team ignore a basic distinction throughout their argument and this trial and that is whether facts are part of a crime for which the Accused is charged or whether evidence is admissible for other purposes. Testimony is still admissible because it shows the systematic use of torture by the CPK at the security offices. And evidence can prove a policy even if it is not at a specific crime site.
On Trapeang Thma Dam: the Khieu Samphan defense is completely right that Im Chaem’s statement cannot be used because it is act and conduct evidence. The use of that interview is unnecessary to prove that Khieu Samphan visited the Trapeang Thma dam as he has admitted this, twice, and the Khieu Samphan team ignored this. While Im Chaem’s interview cannot be used to prove Khieu Samphan’s presence, but her testimony on the conditions is admissible and tells us what Khieu Samphan would have seen when he went to the site.
On security offices: Mr. Lysak had expected to respond here to the remarks of defense regarding S-21 but there is a hole because despite having two long days to present their defense, the Nuon Chea defense has said nothing, even though this is the security center most closely related to Nuon Chea, where nearly 18,000 people were killed. Mr. Lysak asked, if anyone believes that they ran out of time? He noted that they had three opportunities to discuss S-21: on Friday, they passed on S-21 so they could leave early, on Monday morning, they skipped it, and on Monday afternoon they threw insults in the direction of the prosecution. What was so important that it should take precedence over S-21?
Here Mr. Lysak listed the subjects covered by the Nuon Chea defense opening statements, include 47 references to the Manichean narrative.
Mr. Lysak said that perhaps tomorrow they will talk about S-21, when no one has an opportunity to respond, and if they do that, then shame on them. Regardless, nothing they can say changes the evidence that proves their client’s guilt and proves the crimes at the security office.
Mr. Lysak next discussed the Manichean narrative, and that defense did not understand what it actually means. Defense said that Manichean is difficult to explain, but Mr. Lysak disagreed. He said it is isn’t. It is having a dualist view, and dividing the world into good and evil, good and bad. He noted that the greatest irony is that no one was more guilty of a Manichean mindset than the Khmer Rouge, who divided people into good and bad and then killed those they viewed as bad.
On issues on criminal responsibility: Mr. Lysak asked why are Nuon Chea and Khieu Samphan responsible for the imprisonment and killings at the security centers? It was not because they had breakfast together. They lived and worked together constantly before, during, and after the DK regime. They were the three most regular participants at the standing and central committee meetings where decisions were made and instructions given on arrests of purported enemies, including their fellow leaders. Nuon Chea and Khieu Samphan were a part of a very, very small group of leaders who sat around the table at K-1 and made these decisions. They decided the fate of Sihanouk’s children, or of committee leaders (as Duch testified).
The first reason is their participation as a small group of center leaders who made these decisions, and the second, is the political education meetings and speeches that they regularly gave to the party cadres when they identified who were the enemy and instructed the cadres to remain vigilant for the enemies burrowing from the inside.
The defense counsel told the Cambodia folk story of the farmer who blames the goat for the food eaten by the monkey, because the monkey frames the goat by wiping the food on the goat’s mouth. Mr. Lysak told the Democratic Kampuchea version of that story is that the goat was lucky it wasn’t Nuon Chea, Khieu Samphan, or Pol Pot. They would not just have blamed the goat for eating the food, the leaders of the CPK would have smashed the goat for stealing the food, smashed the monkey for being part of the goat’s network, and killed all of their offspring so the eggs of these enemies would not spread.
Mr. Lysak said that is the sad reality of how things worked in the DK, that is the callous regard for life repeatedly shown by leaders of this party, and it’s a story that Mr. Lysak hopes will never be repeated again.
Mr. Lysak yielded the floor to Co-Prosecutor Chea Leang.
Ms. Leang stated that this is the last hour and last time of the prosecution’s presentation on Case 002/02. In the last days, defense have argued vigorously that this is a mere show trial, a propaganda exercise for the funders of the court and never intended to get to the truth of the charges.
In two weeks of public sessions, defense counsel were allowed to make the arguments about the fairness of the trial, the fairness of the Chamber’s decisions, and the strength of the evidence in this case without any interference or censorship from the court or anyone else. Throughout the trial the Chamber has shown patience and fairness by allowing the Accused through their counsel to make any and all arguments, even when they attacked this Chamber’s integrity, this Chamber allowed them to make these arguments and to make them publicly. This Chamber’s professionalism, patience, and fairness to the defense in light of these personal attacks should be acknowledged.
During these closing arguments, the defense has expressed their surprise and satisfaction with the appeal judgement in Case 002/01, which entered partial acquittals on their part of the case. The prosecution did not agree with all of that decision. On some legal and factual findings, the prosecution was disappointed. But it is not possible nor is it the job of judges to please all the parties in a case. Their job is to apply the law to the facts as they find them, fairly and in accordance with their conscience. The prosecution recognizes this and appreciates the difficult job that all the ECCC judges face, and your dedication to those duties. No one who reads the appeal judgment, who made several findings highly favorable to the Accused, can possibly think that this court is set up with a predetermined outcome. The judgments of the ECCC are based on law and evidence as they should be. While the appeal judgement in Case 002/01 made several findings favorable to the Accused, it also upheld the majority of the convictions, recognized Nuon Chea and Khieu Samphan’s responsibility for those crimes had been proven beyond a reasonable doubt, and acknowledged that the trial was fundamentally fair and in accordance with international fair trial standards, and upheld the sentence.
One civil party had told this Chamber that she had lost 22 members of her family during the Khmer Rouge regime and how that had affected the rest of her life. “Today I am so excited that I am given the opportunity by this international court, who crossed the oceans in order to come here to find justice for them and for the Cambodian people. This is the day I have been waiting for, more than 30 years. I would like to make a request to you, your honors, what is the international court, to judge fairly and justly in proportion to the gravity of the crimes.” Her simple words expressed the enormous but straightforward task ahead of you. You should judge fairly and justly, taking into account the enormous scale and gravity of the crimes.
If the evidence does not prove guilt beyond a reasonable doubt on a single charge or all charges, it is your duty to acquit on that charge. But the prosecution are confident that when you carefully examine the evidence in this case this Chamber will see that it has established beyond any reasonable doubt that both Nuon Chea and Khieu Samphan are criminally responsible for the enslavement of millions of Cambodians in cooperatives and worksites where many were executed or died under the harsh conditions they forcibly imposed on the population; for inhumane acts connected to their forced marriage policy and the rapes that were a part of this policy; for the persecution of Buddhists when they sought to eliminate that religion; for persecution and genocide of the Vietnamese and Cham groups in Cambodia; and for the unlawful detentions, torture, murders and exterminations of tens of thousands of adults and children, just at the four security centers charged in this case.
All the documents that the co-prosecutors referred to were from well-known sources. The defense allegations that the documents presented by the co-prosecutors and witnesses lied are unfounded. What would be the reason for the prosecution witnesses, civil parties or experts to make a false testimony?
The co-prosecutors ask this Chamber to weigh the evidence carefully, judge fairly, and find the truth.
It is the truth that will give justice to the victims in this case and it is truth that will help Cham people and future generations in Cambodia and every part of the globe. Let us do what we can to prevent atrocities like these again.
This has been a long and complex case, with 172 witnesses, 11 experts, and 95 civil parties in the two trials of Nuon Chea and Khieu Samphan over 499 days of trial, where, in addition to the oral testimony 16,591 documents have been admitted. At least 1,000 civil parties and witnesses were interviewed in the investigation.
The Office of Co-Prosecutors wish to express our deep gratitude to each and every witness and civil party those who provided their account, the hundreds who submitted to interviews during the investigation, and to those testified at trial. We know that the majority of you suffered greatly during the DK regime, and we understand the difficulty of recalling and recounting such painful memories, the humiliation of enslavement, the pain of forced marriages or rapes, and the death of loved ones. To all the witnesses and civil parties, thank you for your courage, you are the real heroes of this case and your contribution serves the cause of justice for all victims including the many who cannot testify because they lost their lives during that regime.
Ms. Leang thanked the court and yielded the floor.
Judge Nonn asked Victor Koppe regarding his plan for proceedings for tomorrow, if he consulted with client, if Nuon Chea will make his final statement, and if Nuon Chea will be present in courtroom or make a statement from the room downstairs. Mr. Koppe said that he will not discuss his conversations with his client and will let the senior legal officer know through email if Nuon Chea will speak or if Mr. Koppe will speak. Judge Nonn said he needs to know because they need to coordinate it through the AV unit.
Judge Nonn reminded those present that there is no hearing this afternoon, and hearings resume tomorrow, Friday, June 23, at 9 a.m.