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Trial Chamber Finds Accused Nuon Chea and Khieu Samphan Fit to Stand Trial
Questioning the Court, and Their Own Role, Khieu Samphan’s Team Argues in His Defense
At 9 a.m. the judges filed in to the courtroom, and the sixth day of closing arguments began.
Judge Nil Nonn called on the Greffier, who confirmed that all parties were present except National Civil Party Lead Co-Lawyer Pich Ang, who is absent for the morning sessions, and Nuon Chea, who has waived his right to be present in the courtroom today due to medical reasons, and is following today’s proceedings remotely.
Today, the Khieu Samphan defense team will begin their closing statements.
Defense Co-Lawyer Anta Guissé began:
“Mr. President, Your Honors, Mr. Khieu Samphan is going die in jail. He’s going to die in jail, and he knows that. His Defense knows that, as well. You know it, as well. The prosecution as well as the civil parties know it, too. Especially the donors who financed this court know it, as well. Mission accomplished.”
Ms. Guissé went on to say that the objective of this historic trial was sentencing Khieu Samphan to life, that the Supreme Court Chamber (SCC) has upheld the Case 002/01 sentence on appeal, and the Chamber’s mission today is to sentence him to life again. She noted the lack of VIP attendees in the gallery this morning in comparison to Khieu Samphan’s first trial, and noted perhaps this case may seem less interesting than the first. Still, the symbol of sentencing the DK and CPK has been completed.
Then Ms. Guissé got to her real point, stating that since the trial is coming to a close, and there will be no further case, is there a reason to be happy or satisfied with what happened in this courtroom during this trial? And did the ECCC live up to the task before it?
She posited that the truth was that this was a trial whose outcome is already known, and asked, if the truth is that this trial was so biased, can we take this trial as a model for the world and for Cambodia in particular? She noted the ongoing discussions about the legal legacy of the ECCC, and wondered, what questions will be asked about that legacy after this trial, when the world reviews what remains of the principles of law and procedure that were argued before this court? She knows that people wonder why defense makes so much of issues of trial and procedure, and that these issues are not always the primary focus of the public or this Chamber or the SCC.
The challenge to the Chamber is to answer what the principle of legality will be in the face of the crimes alleged and the suffering of the people. And Ms. Guissé recognized the nerve of the Khmer Rouge to insist on a fair trial, considering the state of fair trial in the DK.
Unsurprisingly, Ms. Guissé had the answers for her questions to the Chamber, and, like Defense counsel for Nuon Chea, she did not hold back in her reminders, admonishments, and requests for a fair trial to the Chamber, prosecution, and civil parties.
First, she noted that a fair trial is about much more than being represented by lawyers in robes in a courtroom. A fair trial is about fair procedure and law, above all. Next, she reminded the Chamber and her fellow counselors that she, and all the counsel, are legal professionals, and that as jurists, they know that law must mean something in this courtroom. Speaking about fundamental issues should be fundamental in this courtroom.
She acknowledged that law is complex and complicated, it can be dry, it needs to be dissected, and this trial is happening 40 years after the facts that occurred. Law that existed then was not as developed as it is today and poses a particular challenge to all parties and to the Chamber. Ms. Guissé noted that while law might not be so sexy, it is law that is the face of the legitimacy of the Chamber, and of the ECCC, as a judicial institution. And the role of the Chamber and the lawyers is to contribute as much as possible to the work of justice. The Extraordinary Chambers were borne out of the law, and it is the same law that must be applied in this case.
Ms. Guissé noted that so much liberty had been taken in this courtroom that legal procedure seemed optional and speaking about the law was a strange thing to do.
Next, Ms. Guissé noted that the prosecution has the burden of proving the facts beyond a reasonable doubt. She echoed Mr. Koppe’s disappointment in the prosecution’s oral argument, and said she had hoped for something other than a “super-document hearing.” In addition, she was disappointed to not see one mention by the prosecution of the contradictions to their case that were raised in the courtroom or in the defense briefings. It was as if there was no judgment deciding Case 002/01, as if there were no cross-examinations of witnesses or civil parties or experts.
Ms. Guissé explained that, because the prosecution had, themselves, stated that oral arguments were for responses to the parties’ briefs, and because the parties file their final briefs at the same time, oral arguments are the only time when there can be real debate of the issues. Ms. Guissé interpreted the prosecution’s refusal to debate as a display of arrogance, the arrogance of believing that they do not need to prove their case, as if the onus of the burden of proof had shifted to the defendants. She said that they presented their case as though it will necessarily succeed.
The next question posed, and answered, was what is the role of defense in a trial where everything is decided in advance? Ms. Guissé said that defense role is to recall what the law is, what the rules are, what the Chamber may do and not do, what the prosecution may do, and not do. What defense will do in this case, even if they have no illusions as to the upcoming verdict, is to do what the prosecution should have done. And that is selecting the right facts that belong in this trial. A selection that the prosecution avoided doing because they presented their brief as they presented their submissions – by starting with liability, which assumes the guilt of both Accused, rather than the facts of which the Chamber is seized, the elements of crimes, and building a case to criminal liability.
Ms. Guissé then discussed the first question that the Chamber must answer at the beginning of a trial, which is to determine which facts the Chamber is seized of, then, in view of those facts, to discuss legal characterization of those facts.
The first fact that Ms. Guissé highlighted is the fact that Khieu Samphan is not being tried for all the facts that happened in Cambodia between 1975 and 1979. She highlighted this as it was not clear to her from the prosecution’s brief. She noted that in accordance with the rules of the ECCC, the closing order of which this Chamber is seized limited the time and geographic locations for the case, which applies to every party. She opined that the Chamber, the civil parties, and the prosecution want to sentence a regime so badly that they have forgotten what the actual facts and crimes alleged are in this case. She reminded the Chamber that a criminal trial is about the thorough application of the law to facts, even with the gravity of the crimes before the Chamber.
In order to illustrate the problems that came up in this trial, Ms. Guissé cited to jurisprudence from ICTY, in the Prlic judgment, in which the Chamber said that a criminal trial cannot fully satisfy the needs of history, but that its role is to rule on the criminal liability on the basis of facts and allegations, which is what this Chamber must do in this case.
In international criminal law, where justice seems to be created to satisfy the international community, when we speak about the struggle against impunity, only the prosecution’s role is to fight against impunity. The role of the Chamber is to judge without bias and to ensure that the law is properly applied.
Ms. Guissé recalled the foundation of a criminal trial, in which the first task is to understand the charges levelled against the defendant, nothing more and nothing less. In the ECCC, and in Cambodian and French law, the scope of a criminal trial is determined by the prosecution, who file an introductory submission. Then the Co-Investigating Judges (CIJs) are seized only of the facts in those submissions, and they are tasked with starting a trial on the basis of only these facts.
The Chamber is seized of facts, not legal characterization. So, the CIJs may say that there was a murder, but it is on the basis of facts. If the Chamber wishes to recharacterize facts, they must warn the defendants so that they can adequately prepare a response. In addition, the Chamber must not introduce new facts.
Ms. Guissé explained that she offered this reminder because, during this trial, the prosecution and civil parties wanted this Chamber to rule on facts of which this Chamber was not seized, and to which the defendants must not answer. It is true that the closing order in this case is a jumble of facts, and that there is a certain process that we must follow to not go beyond the scope of the closing order. It is a pity the prosecution did not organize these facts, but they were the only party that knew the all facts from the beginning, as it was the prosecution who determined the scope of the charges with an introductory submission. The prosecution’s failure to organize the facts may be a way to hide that they, and sometimes the civil parties, want this Chamber to improperly recharacterize and add facts to the closing order.
Ms. Guissé next offered a couple of examples of reliance on facts and/or instances of recharacterization of facts from the prosecutor and civil party briefs. She noted that, in not organizing the material better, the prosecution is also asking the Chamber to do the prosecution’s job, which is to do the triage by determining which facts apply to which charge or legal characterization. And Ms. Guissé repeated to the Chamber, that the only accusations that are retained in the closing order are facts that seize the chamber, and the prosecution determined the scope, defined the accusation, and they have the burden of proof, which involves much more than just providing a massive document to the Chamber and saying there you go, use the facts willy-nilly, but just find a guilty verdict for the Accused.
The closing order is a massive, complex document. The Chamber, however, does not have the mandate of historians, but the mandate of judges. Nor does the prosecution have a mandate of historians. So, Ms. Guissé stated, the original sin in this case goes back to the investigation, because, as CIJ Marcel Lemonde said, at the time, that in the closing order, “facts were brought up that were undoubtedly not absolutely indispensable, but which seemed important for the case and which the closing order would remain the only trace left by this court of what happened in Cambodia” between 1975 and 1979.
Ms. Guissé maintains that the prosecution should have been even more vigilant. There is a method or path to be followed when moving through this closing order for a criminal trial and not a historical document. She emphasized that it is only the material facts that can provide the basis for criminal responsibility for the defendants. The Chamber and the parties need to get to the core of the facts, to determine what are the relevant facts, and what the Chamber is allowed to rely upon for its deliberations.
The closing order contains facts that were identified previously in the prosecution submission and supplementary submissions. During the investigation, there were CIJs who investigated on facts they were not seized of, and of which the Chamber was consequently irregularly seized. This is not a defense opinion, rather it is represented in ECCC Internal Rule 55.2, which states that the investigating judges are meant to only investigate those facts in the prosecution’s introductory and supplementary submissions. This principle also appears in Cambodian law, and a French appeals court ruled in 1962 that a court can only rule on the facts that sent the case to trial, because the accused have a right to answer those facts.
Throughout this trial, defense have seen incomprehensible decisions, despite defense objections.
One general example of this is the Chamber’s decision to rule on whether the Khmer Krom are to be considered part of the Vietnamese group for the allegation of persecution of the Vietnamese, even though the Chamber cannot rule on facts of which you are not seized, and this Chamber was not seized of the treatment of the Khmer Krom. This example illustrates all of the issues defense has seen before this court.
First, the prosecution and civil parties are trying to have the Chamber look at what the Khmer Krom suffered as a group by assimilating these people into the group of the Vietnamese. In their brief, the prosecution refers to the Khmer Krom continuously throughout (Ms. Guissé cited at least 10 instances) which is making reference to facts that the Chamber is not seized of. The civil parties were a more subtle, but also refer, once, to the Khmer Krom in their brief.
Defense anticipated this in their brief, and they explained that the Chamber is not seized of the Khmer Krom as a group. The prosecution knows this, and they are trying to introduce these facts on the Khmer Krom through their written statements and facts from Case 004. The accusations in this case do not concern the Khmer Krom. The prosecution could have asked in their introductory or supplementary submissions to include the Khmer Krom in the investigations, but they did not.
Next, OCIJ decided in 2010 that they were seized of facts of Vietnamese living in DK in certain areas, including incursions into Vietnam, but not crimes related to Khmer Krom. They rejected the all of the prosecution requests to act on additional facts not in the submissions.
In 2010, the PTC confirmed that the Khmer Krom are not in this trial, but the prosecution argued that they needed the evidence on the Khmer Krom to prove the persecution of the Vietnamese. The PTC judges said that the PTC does not have the right to go back after the fact to re-determine the scope of the investigation, and the prosecution does not have that right either.
Ms. Guissé noted that in four briefs from four parties, no one has the same set of charges against the Accused. And that means there is a problem from the very beginning. Ms. Guissé said that Chamber needs to be vigilant about what the starting point of the case is, what the original submissions of the prosecution were. And even if other facts are mentioned, the Accused can only be judged on the facts that the Chamber is seized of.
Going back to the Khmer Krom, at the beginning of this evidentiary trial, the prosecution did not hesitate to demonstrate that the Khmer Krom were targeted, which was incomprehensible to defense as those facts are not in the scope of this case. Apparently, it was not clear to the Chamber, because the Chamber said would need to rule on this later, as it needed to decide whether it was persecution of the Vietnamese or those perceived to be Vietnamese.
Following that, this Chamber rendered another decision and said that the question of the treatment of the Khmer Krom as a specific group was not what the Chamber was seized of. The reason to discuss this at length is that despite three decisions, by the CIJs, the PTC, and this Chamber, the prosecution has continued to ask you to rule on the issues related to the Khmer Krom.
The Khieu Samphan defense team requested that the Chamber ensure that the Khmer Krom are not in the scope of the decision in Case 002/02.
Ms. Guissé then discussed the issue of the rapes outside the context of marriage. The chronology of this issue was that first, there was an introductory submission in 2007 of rapes in one location. No other facts were added locally, and, in 2009, another submission of forced marriage. In 2010, the closing order was issued and case sent to trial.
Ms. Guissé stated that OCIJ had investigated illegally the rapes allegation, but the CIJs concluded that there wasn’t rape at the location listed or elsewhere, and that CPK’s policy was to prohibit rape, so if there were rapes during the DK, they were not a part of the CPK policy. The prosecution chose not to appeal this decision. Ms. Guissé noted that in the scope of the investigation, only the prosecution can appeal, that the defense cannot appeal on issues related to principles of law.
The CIJs did not include rape outside the context of marriage in the charges in the closing order, and the Chamber is not seized of rape outside the context of marriage, and in spite of this, in this Chamber’s judgement on Case 002/01, this Chamber brought up facts of rape outside the context of marriage in multiple paragraphs in the decision.
The civil parties appealed and SCC validated that you are not seized of cases of rape outside the context marriage. From the perspective of the prosecution and civil parties, you are hearing facts of rapes outside marriage, for example, in the civil parties’ final brief, there are more than five footnotes where rapes are mentioned, and they are listed as part of the charges. The prosecution makes two separate mentions of rapes outside the context of marriage in its final brief in this case. In this Chamber’s decision before the SCC, it was very clear that these are not included, and so if rapes did not take place in the context of the consummation of marriage, you cannot consider this evidence.
In a French court, if you are told that you are not seized of rape, you can recharacterize it, perhaps it is torture. And since there is a legal characterization of torture in the closing order, then why not put rape into torture? Ms. Guissé elaborated that this was why she had said that the Chamber is seized of facts, and not of legal characterization. The proper procedure is not to say, as the prosecution does, that these facts are interesting and let’s include them in the whole package because it will help you convict the Accused.
Ms. Guissé added that there is also the matter of the facts that have been excluded from Case 002/02 after the severance of Case 002. To this end, the prosecution is attempting to try facts that occurred in Vietnam’s territory. They claim that it is important to discuss the incursions into Vietnamese territory because they are necessary to understand the genocidal intent of the Accused. In 2013, the prosecution asked this Chamber to remove the incursions from the scope of Case 002/02, which they proposed in the discussion of the severance of Case 002, claiming that these allegations regard facts that are distinct or independent and not related to the alleged persecution of Vietnam in DK. Ms. Guissé said that the prosecution wanted these out, but now they want them in to understand the genocidal intent of the defendants, and “it’s too much.”
Ms. Guissé continued with a discussion about the law and procedure at the ECCC. One of the difficulties defense noted in the final brief was that ECCC procedure does not allow the defendant to appeal the final closing order, rather, only the prosecution may appeal all decisions coming from the CIJs. This is supported by the internal rules and the PTC issued two decisions about the subject.
The first decision brings up the issue of limitations to the defendant’s appeal powers, and the PTC ruled that any grievances with regard to defects are not challenges of jurisdiction per Internal Rule 743. The PTC upheld this position following an appeal by Ieng Sary against a closing order, which explained the appeal was not admissible but grievances could be expressed, so PTC accepted preliminary objections.
Then a new submission was made by Ieng Sary that was linked to parts of the closing order that were null and void. In this submission, Ieng Sary raised the issues of national crimes and the crime of deportation. The prosecution said the Ieng Sary request was inadmissible as there no provisions for the defense to appeal the closing order if not with regard to the principle of legality. PTC partially admitted Ieng Sary’s admission by distinguishing between preliminary objections and the second submission that Ieng Sary filed subsequently.
With regard to the issue of national crimes and deportation, this Chamber decided that it was not seized on a regular basis of crimes under the Cambodia Criminal Code of 1956 (national crimes) and that the defendants should not be tried for crimes under this Code, and so you partially admitted Ieng Sary’s request.
Ms. Guissé offered this as a reminder to the Chamber that it had settled Ieng Sary’s issue with regard to Ieng Sary’s submission after preliminary objections. This is important because in this request, Ieng Sary brought up national crimes and deportation, and this Chamber did not rule on the crime of deportation. There are many things in the closing order that go beyond the charges of the CIJs. If the CIJs talked about these facts elsewhere then they were not normally seized of them. It was the PTC who said that defense can raise a point of substance, and it was on this decision that Ieng Sary raised the question of national crimes and deportation. The internal rules do envisage that the CIJs can only investigate on charges in the initial or supplementary submissions.
In preparing for trial Case 002/02, the Chamber asked Defense and the parties to submit briefs on the issue of deportation, which had not yet been settled. Defense submitted saying that these issues of deportation crimes needed to be set aside because the CIJS had drawn factual conclusions and legal conclusions on facts even though they were not in any of the prosecution submissions to the OCIJ. Defense was surprised to see that the Chamber’s decision was that it was too late for Defense to raise this argument. (Ms. Guissé reminded the Chamber of another problem in their decision where they say it is too late, but yet they partially had admitted Ieng Sary’s appeal.)
The issue is that if the PTC says that defense cannot raise substantive points in the context of an appeal to a closing order and this Chamber said it is too late for defense to raise substantive points during the substance portion of the proceedings, this is a circular argument, no chamber is making a decision and it violates the Accused’s right to a fair trial.
A court of appeals in France had a similar case in 2012 and responded specifically to this question. The French court of appeals said where there is a closing order without a possibility of appeal (as in the ECCC), if under the procedural code the closing order should be definitive in covering procedural defects, then it cannot cover its own procedural defects. On the other hand, the investigating judge can only judge a person who is accused of certain charges on the basis of the facts of which he is seized. Then the person who is sent to trial can obtain from the jurisdiction of the judgement if the allegations are upheld. This has to be done in such a way that he has effective recourse to justice.
Defense requests that when the CIJs have gone outside the scope of the closing order, that Defense can ask the Chamber to make a ruling, as in the case of the deportation crimes. This goes to the heart of a fair trial, and the defense will find itself in a difficult position if the Chamber does not decide this. As the French appeals chamber says, the only way to handle this is for this Chamber to make a decision on the crime of deportation and all the facts, that the CIJs did not have right to investigate or draw conclusions because these were not in the prosecution submissions to the closing order.
When there is a doubt in procedural issues, this Chamber would have the tools to determine what is within the scope the court is seized of. Defense asked the Chamber to set aside the out of scope information mentioned in the prosecution and civil parties closing briefs. In short, defense asks the Chamber to apply the law and rules of an equitable trial.
Aside from CIJs going outside the scope of the closing order, defense also requests that the Chamber set aside all the evidence that is outside the closing order. Defense reviewed the evidence for every crime and site envisaged to help the Chamber determine the original scope and whether the material is within or without the scope.
Ms. Guissé next discussed evidence and proof.
She said that in their brief, the prosecution does not distinguish between the types of evidence, such as hearsay or direct witness, or different types of documents. The SCC decision is nothing new, but reiterated principles that already existed, but neither prosecution nor the civil parties nor this Chamber have respected these rules of evidence. For example, they rely on a written statement of Im Chaem that referred to the acts of Khieu Samphan. There was a decision made that this could not be used because there was no opportunity for defense to test the facts. In this case, Im Chaem is not deceased, and he was not even asked to appear before this Chamber. So, Ms. Guissé asked, on what basis can prosecution cite this evidence?
Another challenge is using Henri Locard’s statements on Khieu Samphan, as if Mr. Locard was an authority on the question. Ms. Guissé reminded the Chamber that defense is still waiting for the specific recordings that affirm what Mr. Locard testified to, and as of now, his testimony is hearsay. Experts are not meant to testify on conduct or acts of the Accused. The SCC agreed on this. Also, the civil parties have mentioned statements relating to acts and conduct of Khieu Samphan. The civil parties say they can use these statements and the only restriction is if they are the sole basis for this Chamber’s conclusion, and that is not true. Written statement relating to the acts and conduct of the Accused simply cannot be used. Civil parties cite to someone so egregious that even the prosecution did not dare cite to him in their closing brief. The elementary rule of procedural law is that the culpability of the Accused must be proved beyond a reasonable doubt, it is not, as prosecution said, that the Accused couldn’t not have known, the prosecution has to say he knew, and here is the reliable and credible proof.
Next, Ms. Guissé discussed contradictions that could have occurred due to the passage of time. She said that there is an idea that there is the main thing, and then there are the accessory features. She wants to know what will this Chamber determine is the main thing – is the main thing all inculpatory evidence and the secondary is exculpatory? She said that the only rule is whether the testimony is valid enough to prove culpability beyond a reasonable doubt.
Ms. Guissé noted that in the civil parties’ brief, they say that there can be variations in statements of civil parties because statements made early on only had one closing order and did not know what charges were yet. This argument worries Ms. Guissé because it says the civil parties were meant to adjust their stories according to what the charges are. The closing order contained several conclusions that were based on civil parties’ evidence, so this is not a viable argument by the civil parties.
Ms. Guissé noted “an extraordinary phenomenon” that in two days of arguments, the prosecutors did not once say the words “armed conflict”, as if it were a secondary issue. But the prosecution asked this Chamber to condemn Khieu Samphan to life in prison for violating the Geneva conventions, but without a discussion armed conflict (unless the intent was to discuss incursions into Vietnam which are out of scope).
Defense discussed armed conflict at length in their brief, because the prosecution discussed the language that defendants used in speeches against Vietnamese but without ever stating there was an armed conflict with Vietnam. Ms. Guissé said that it is a minimum of intellectual rigor to put things in their context, and that there is no way to understand speeches containing strong language if there is no discussion of the recent incursion into Cambodia by Vietnam.
The challenge in this case is that the trial is occurring long after the facts, and the Chamber and parties have to do mental gymnastics to figure out what the law was at the time. This is important because it indicates what risks the Accused knew they were taking with their behavior at the time. This principle of law is the very elementary basis of procedural law, and any deviation must respect the principle of legality.
With regard to the SCC decision in Case 002/1, Ms. Guissé stated that what is clear is for the crimes the Chamber will need to rule on and the modes of accountability that apply, the Chamber must apply the law as it existed at the time, including customary international law at the time. The reason Ms. Guissé raised this point is because the prosecution is doing everything upside down and contrary to the principle of legality. First, they said liability existed under international law, and then they define what the crime is. And what should happen is to discuss first what the crimes were back then, and then to see how to apply the law. This is so clear that the ECCC acknowledged this principle of legality. The most blatant example of this is the ECCC’s handling of joint criminal enterprise (JCE), where there are three forms and JCE form 3 was excluded from this trial because it did not exist from 1975 to 1979.
In order to know if it existed at that time, it was necessary to dissect the definition to see if it was foreseeable and accessible to the defendants at the time. While the ECCC acknowledged this reality, the SCC gutted the principle of legality of its substance in its appeal in Case 002/01, but it did do a good job in Case 001, where it said that the viability of the jurisprudential legacy of tribunals will depend on the drafters’ ability to base their decision on a set of pre-existing rules, and where it stated that the law at the time of the act must apply and that it must be foreseeable and accessible to the defendants.
The Duch decision was clear and sharp, and the SCC explained that there had to be a careful assessment of these criteria to guarantee the legitimacy of the ECCC. Then came the Case 002/01 judgement and everything crumbled, and either to legal advocacy or pressure to not acquit. The SCC retained the crime of murder with dolus eventualis, which means it was possible to commit the crime of murder without having at the onset the intent of committing the crime of murder. Dolus eventualis is a lesser intent than the intent to kill in order to find culpability in movement of people for the deaths, as no one really intended to kill the people who died. The SCC recalled its decision in Case 001 where it said that to comply with the principle of legality, the first condition was that the definition of the constitutive elements of the crime and modes of participation had to be foreseeable and accessible; and the second condition was that judges could rely on domestic law to establish that the Accused could reasonably know that the crime at hand was forbidden.
This went out the window in Case 002, where it is important to convict, so they were trying to come up with a way to define murder with a lower intent, so that they could uphold this Chamber’s decision. This Chamber based its decision post facto jurisprudence, as you based your decision on ICTY and ICTR jurisprudence to speak about a lower intent than the intent to kill. But a lower intent for murder did not exist. The SCC could not logically speaking and in the face of the world base itself on posterior jurisprudence, so it interpreted in bizarre way and based its decision on Nuremberg jurisprudence to find a lower intent than the intent to kill. It found that we can be condemned for murder even if we did not intend to kill by relying on the argument that maybe it is possible that the doctors in the death camps in World War II did not have the intent to kill. Ms. Guissé said that she was completely flabbergasted at this legal reasoning.
She went on to ask if this is a reason to be proud? That the SCC said that in death camps it was possible to not have the intent to kill, just to save a conviction of murder in your decision, so that Khieu Samphan can be sentenced for life. No one focused on the issue of the legal motivations that allowed this decision. This not the legacy for the ECCC that Ms. Guissé would want.
There is a mode of operating by the prosecution where they are trying to reduce the level of intent for crimes. For example, for the crime against humanity of other inhumane acts, the explanations offered by prosecution in final brief provide blatant excesses. They say that other inhumane acts can be defined by the nature of act, caused deliberately, that causes great suffering, and with intent to cause great harm. What the PTC said on other inhumane acts is that it is an issue of law and an issue of fact.
Contrary to the proper recommendations of the SCC, the prosecution is using posterior definitions on which to base their argument. The SCC said that the use of definitions of crimes against humanity that were distinct and posterior were anachronistic and not founded in law, specifically for forced disappearance and population transfer. The prosecution is providing this Chamber with posterior definitions, and not contemporaneous definitions, for forced transfer, forced disappearance, forced marriage and rape, and attacks against human dignity.
Ms. Guissé, then asked, where is the principle of legality? It is out the window.
Regarding the crime against humanity of rape and other inhumane acts, the prosecution proposed to this Chamber their own definition because they say that the ICC definition is too restrictive. Their job is to examine the degree of gravity back then, but they are asking this Chamber to apply their definition from 2017.
The civil parties are more legalistic and more grounded in legality. Ms. Guissé acknowledged the logic in what Marie Guiraud said constituted other inhumane acts in 1975 to 1979: (i) identify an articulation between a law and prohibitions, and (ii) analysis of the degree of gravity of other crimes against humanity listed elsewhere, in international conventions, for example. This corresponds to defense analysis in the final brief but with regard to the application defense does not necessarily agree on the process that was followed.
The existence of more specific standards, posterior standards, does not determine in itself the compliance with the principle of legality. The Chamber must follow this with regard to forced marriage as the crime of forced marriage as defined posteriorly was never established as a distinct crime against humanity but in as an other inhumane act. We discuss forced marriage as defined by SCSL in 2008, so will be very difficult to apply this to our current case, and the civil parties acknowledge that the crime of forced marriage at ECCC and SCSL are different. It is not possible to consider the SCSL definition because the prosecution and civil parties do not demonstrate that the behavior charged reach the gravity of murder, extermination, enslavement, deportation, imprisonment, torture, or persecution for political grounds.
The stammerings with regard to forced marriage prove that back then, forced marriage was not considered illegal. It is clear that the appeal chamber of SCSL used the case to develop the forced marriage jurisprudence, and it is even clearer that it did not exist in 1975.
The prosecution said that “forced marriage was maybe not the worst crime that occurred in DK, but was a fundamental violation of the right to freedom” and this does not rise to the level of a crime against humanity. The Popovic judgement of ICTY stated “The trial chamber correctly stated that not every denial of human right is serious enough to constitute a crime against humanity.”
Most of us in this courtroom believe in law and believe that developments are necessary, but with regard to forced marriage, the first time there was a discussion of forced marriage in courts was 2008, therefore there is no forced marriage as other inhuman acts in crimes against humanity.
Next, Kong Sam Onn will speak of the regulation of marriage in factual terms and what conclusion we drew from this, and it will make it impossible for this Chamber to convict, legally it was not a crime that rose to a crime against humanity, and the factual allegations do not support it.
Ms. Guissé yielded the floor to Mr. Kong Sam Onn.
Regulation of marriage
Mr. Onn stated that first, there is no law that is applicable to convict Khieu Samphan as he is charged with other inhumane acts as part of crimes against humanity. Forced marriage is not a crime in the national law, nor was it applicable of 1975-1979. In Cambodia, only in 2005 were two laws enacted, one was against domestic violence. The presentation of the prosecution relies on this point, the violence. But while individual rapes occurred, it was not systematic rape.
Mr. Onn next quoted the prosecution when they said that it was not the absence of love that made forced marriage a crime, nor the attendance or lack of attendance of parents, but that forced marriage became a crime when the state played the role in choosing the spouse and forced the people to marry the spouse or punish them severely if they refused to do so, and punished them if they did not consummate marriage, which caused them harm if they did not so.
Mr. Onn said that the elements in the prosecution definition are: first, partner, second, choice of partner, third, punishment for refusal to marry, fourth, forced consummation. He asked if Khieu Samphan is responsible for all four of these elements, and will cover these points in detail.
Mr. Onn said that the Chamber must turn its attention to the evidence before it on marriage. Khieu Samphan has been charged with the crime against humanity of inhumane other acts of forced marriage on a nationwide basis. Mr. Onn said that not only will the law not allow the Chamber to enter a conviction, but the evidence before the Chamber does not support the conclusion that there was a CPK policy to enforce forced marriages.
In his preliminary remarks, Mr. Onn stated that forced marriage was the most mentioned issues in this Case 002/02 trial as most of the people who testified were questioned on the subject, and a large number of written statements were placed in the case file. The particularity of the testimony of the civil parties is called into question, however. By definition, civil parties consider themselves victims of acts that are part the trial, they fill out an application with or without the help of an NGO, and have an interest in the proceedings. Mr. Onn said this was not to say that civil party testimony is misleading, but to acknowledge the bias, and the need to establish the credibility and reliability of their testimony. In addition, they have collective representation, which may affect their testimony, and they do not take an oath.
The question of the reliability of civil party testimony having evolved over the time is all the more important in that for some of them, their statements have evolved over time with the additions of elements which, and Mr. Onn said this cannot be by chance, always go in the direction of including more incriminating elements. Mr. Onn cited a civil party who had never mentioned her meeting with Khieu Samphan, but in a late submission remembered the meeting before her marriage. This example raises the question of the reliability of the civil party more generally. Additionally, there is a great difference of experience and of the perception of the witnesses who mentioned the marriages and the civil parties specially summoned to testify on their forced marriage, who were selected for their particularly difficult experience though this may not reflect the general experience of people during the DK.
Large numbers of civil parties systematically referred to the need to produce children for Angkar, sometimes in contradiction to other witness testimony. When asked directly they said they had not been instructed to make children for Angkar. Mr. Onn listed more than five witnesses who supported this. It is therefore reasonable to ask about the representativeness of civil party accounts and national marriage regulations.
Regarding the testimony in 002/02, the issue is not to question civil parties who testified, but to put their experience in a broader perspective. Twenty-two civil parties said they were married in DK; six said they were forced to marry (from various zones). Conversely twelve people expressly stated they were not forced to marry during DK. The disparity of experience does not correspond to a zone logic, which has been presented by the experts, that there might have been forced marriage at certain levels. This casts doubt on the existence of a state or nationwide policy.
Two experts testified to the findings of their research on marriage in DK, Nakagawa and Levine. They said that marriage in Khmer tradition was something Cambodians already knew. First, the decision to marry is independent of the will of the bride or groom, and the nature of the traditional Khmer marriage is truly a collective and not an individual issue. It was a family matter between two families, where there is a contract between two families and the bride and groom’s consent is not critical and often ignored. Having affection for one’s spouse was way of honoring the choice of the parents in the marriage, and not the basis of the marriage. As Cambodians who understand this tradition, we know that individual consent alone was not the foundation of marriage. It is an essential element that one must make comparison with marriage and DK.
Regarding the nature of consent in a traditional Khmer marriage, Mr. Onn said that children are withdrawn from the process and they follow the parents’ guidance. Mr. Onn gave several examples of civil parties who had been married by the decision of her parents. Consent of future spouses was not at the center of the traditional Khmer marriage. Nakagawa testified that the girl expected the parents to make the decision of her marriage and accepted blindly on the basis of her parents making the best decision.
On the refusal of marriage, Mr. Onn stated that no opposition was allowed to the parental decision of future spouses. Children were considered to be property of their parents, they did not have full rights, and parents made decisions on education and marriage, the children’s whole life was decided by the parents. As for the boys, they also had to comply with his parents’ choice. Nakagawa has not heard of a boy refusing his parents’ choice and that very few even proposed a choice. There is also a code of conduct for Cambodian girls and women that requires submission and acceptance of the husband, which sheds some light on the circumstances during the DK.
With regard to conjugal duty, it is an important cultural issue. The issue of rape between spouses is difficult to conceive of, even today, and has only been introduced into Cambodian law in 2005. And before then very few cases came before courts. Nakagawa confirmed the existence of marital rape. Mr. Onn stated that marital rape did not exist in the 1970s, and this idea did not enter the Cambodian consciousness until recently. Certain behaviors are more the result of cultural conceptions than an alleged policy of the CPK, which is important in the analysis of the evidence.
The common opinion about DK is to claim that everything was abolished to create new rules at all levels of society. Yet the analysis of marriage shows similarities with the practice prior to DK.
Mr. Onn reviewed the marriage policy during the CPK, which was a consent based marriage policy. The consent of both spouses and consent of collective were required to make a valid marriage. There was also minimum age for girls to marry. Mr. Onn referred to different witnesses who testified in support of this. The principles of the CPK were known long before 1975, not just when marriages began to be celebrated. Next, Mr. Onn cited to witness testimony that highlighted the difference between the CPK principles and the various implementation or understanding of the principles that could and did happen. Mr. Onn stated that this evidence shows that in the case of forced marriage, if there was any breach of CPK principles or CPK policy, then that was an individual’s misapplication of the CPK marriage regulation, and it was not a state policy.
Next, Mr. Onn discussed the expression of consent alleged at forced marriage ceremonies. He noted that there was a diversity of cases and no uniformity of experience across those who participated. Those who had knowledge of CPK regulation could refuse the marriage, and on this point, he noted that those who had more knowledge of CPK principles could feel more free to refuse, and gave examples of witness testimony in support of this.
Mr. Onn discussed the role of authorities and choice of spouses, and specifically the concept of the transfer of parent role to Angkar. There was a distinction between forced marriages and authorized marriages – Nakagawa said a forced marriage was where at least one spouse did not consent, and parents could give consent for their child. Several witnesses confirmed that parents did participate in the marriages.
Mr. Onn noted that the majority of couples stayed with their spouse after they married during the DK. Regarding the alleged coercive circumstance, some witnesses stated that the refusal to consummate the marriage could lead to re-education, but much of this testimony was hearsay or assumptions.
Marriage in Cambodia was not an institution founded on the will of two people, but between two families for the good of the whole group. Questioning parental authority was not allowed. If cadres took over the parental role, then refusal was equally impossible. The principle of consent by the CPK was different from traditional Khmer marriages in that consent by both spouses was required.
Levine’s study reported on the use of the term forced – she noted that the vast majority of couples in her research sample had never considered their marriage to be forced until the idea that marriages arranged under the Khmer Rouge were qualified as such. She said that less than 10% of her sample was married under the fear of violence, but none had been subjected to violence.
On consummation of marriage, the CIJs had shown that people had put in place a population policy, with militiamen to enforce the consummation, but the evidence does not support the conclusion. According to an expert, consummating the marriage to produce children was a tradition, but there was no sex education before 1975, women were sometimes told to be submissive to the husband, and it was expected that women would be pregnant not long after marriage.
With regards to the militia, the presence is reported, but there is no instruction to or from the militia leadership that can corroborate whether militia men were instructed to monitor new couples for consummation or not. Mr. Onn said that many couples did not distinguish between monitoring for consummation and general locality monitoring. Mr. Onn cited several witnesses who gave testimony in support of this.
If there was monitoring, then it was an individual decision by a local authority. Duch gave an example of an immoral cadre being punished for monitoring consummation, and being required to apologize to the couple.
Regarding factual allegation on forced marriage and rape, there is no basis for convicting my client.
Mr. Onn yielded the floor to Ms. Anta Guissé, who continued the defense arguments.
Ms. Guissé returned to an important theme, which is the existence of an armed conflict. She noted that in this case armed conflict has been neglected, including its effect on the facts. The two defenses wanted to start the trial with a discussion of armed conflict, and it was not discussed until the end. Armed conflict is a necessary preliminary element, as she discussed its sources, origins, and chronology earlier. The chronology is important because it puts facts in context.
Ms. Guissé gave the background to the defense position on armed conflict. When there are facts that occurred a long time ago, we need to know what happened in each year until the Vietnamese arrived in 1979. We also need to know the geopolitical context of what was happening at the time. The prosecution did not remind us that the Cold War was in full swing. Defense had key documents presentations on armed conflict, on cooperatives, etc. The key documents presentations discussed all the elements of armed conflict. Ms. Guissé said that the conflict between the Vietnamese and its allies in Cambodian territory, when the Vietnamese invaded they were the winners. And Vietnam and its allies had complete control of all the documents and they had control of the communications network. We often forget to say that the destruction of documents did not necessarily happen during DK regime or after end of it. Ms. Guissé cited to witnesses who described that they received orders to destroy archives from the new local authorities. So, the evidence shows that the destruction was not necessarily caused by the CPK.
The other element to underscore the importance of chronology is that, for a long time, armed conflict was only analyzed on the basis of Vietnamese or Soviet archives. This means that the Chamber is presented with a rather unilateral version of events. Defense now has on the case file documents that scholars had never seen or commented on before. Ms. Guissé said that it was a pity that throughout the proceedings, the prosecution only followed the linear and unilateral version of the conflict from the Vietnamese, and the only armed conflict they refer to is out of scope of facts of the case. Ms. Guissé said that there are two sides, and the side of the DK is important. It has not been heard much and it is important to raise this because there are positions that are taken out of context and become meaningless if we do not know what happened on the borders or the military front.
For example, the warmongering aspirations of the DK does not stand on the evidence. To begin with, the Nuon Chea team also spoke about the DK instructions to avoid confrontation. As defense has said often, reality is more nuance than good and bad, but there are objective elements that may explain why DK behaved in one way or another in particular moments. Ms. Guissé gave as an example the testimony of a witness who said that the instructions were to avoid confrontation. Ms. Guissé explained that the reason for the instruction was because the DK did not want start something after the civil war with Lon Nol and the DK did not want to provoke the stronger, larger Vietnamese army.
Mr. Koumjian said that the 1978 speech by Pol Pot was proof of genocidal intent, and defense maintains that that is a linear and schematic version. In April 1978, Pol Pot was trying to recall past victories. It was right after the incursion into the DK of Vietnamese troops in 1977. Here we must see what happens on both sides, and there is a problem of intellectual honesty if we do not speak about this. Vietnam had just started invaded DK, and an expert testified that Vietnam left because it was not geographically feasible for them to stay. Not speaking about this context annihilates a fundamental element, and it has legal consequences as well. Defense took the trouble in the brief to remind the Chamber of jurisprudence before and after the war with regard to speeches in times of war and what is admissible as propaganda, and that is a key element to understand the speeches of DK and of Khieu Samphan. Not speaking about this is as if this legal element does not exist.
Ms. Guissé next discussed a witness presented by the prosecution as a key witness on genocide of the Vietnamese. But the truth of his testimony was that he was a simple foot soldier of the lowest rank, by his own words, he was not a leader, and he only knew what was in his unit and at most his battalion, and he had specialties. Moreover, his testimony is hearsay because when asked what he heard about the necessity of killing Vietnamese he said he supposed that his direct leader would have heard such an order. He was the only witness the prosecution had called to support their claim of genocide against the Vietnamese. The prosecution never mentioned the other witnesses with command positions who said that not only did they not receive kill orders, but they received the opposite.
There is a problem here, because we are speaking about soldiers, and we are speaking about armed conflict, a fundamental element.
Thus, context plays a critical role when the prosecution says that Pol Pot’s speech in 1978 is proof of genocidal intent, and the answer is absolutely no. First, another witness said when he heard the speech that at the point where Pol Pot spoke about the 60 million Vietnamese soldiers, he did not understand this an order to slaughter Vietnamese. He said they were not 60 million Vietnamese and two million Khmer soldiers, this language was only to prepare soldiers for the attack and for victory. Ms. Guissé stated that it was necessary to bolster the smaller, more poorly armed Cambodian army. So, armed conflict is important because it has legal and factual consequences to the consideration to the facts. Khieu Samphan said in one of his speeches, he spoke about Vietnamese that they were savages and like Nazis, like Hitler, referred to document that is an article in which Sihanouk is condemning Vietnamese attack of December 1979 and compared the Vietnamese invasion of Cambodia to the Hitler invasion of Austria or Czechoslovakia.
In the appeal judgement in Case 002/01, the SCC agreed with this analysis of speeches and the SCC censured this Chamber’s interpretation of a Khieu Samphan speech as war time speech that should be analyzed as a propaganda speech.
The prosecution is drawing conclusions about certain facts by completely omitting reference to armed conflict. During 1978 there was a multiplication of correspondence which seems to prove that the center was aware of what was happening in the East Zone, which seems to prove their persecution of the Cham, but in 1978, things were heating up in the East Zone, and the multiplication of correspondence could be explained that it was necessary to report what was happening on the front line, and this is why the armed conflict context is important.
A few answers to the prosecution brief on crimes and crime sites. And legally speaking, I must make two observations on the crimes of enslavement and extermination. First, on extermination, the prosecution reminds us in their brief of jurisprudence that says that there must be a single crime with the same actus reus, and this was what led SCC to acquit in Case 002/01. If Chamber recalls Bagosora jurisprudence, the application is completely false. And the problem here that we have constantly pushed the limits of the facts to talk about politics, seen as relevant, that are outside the scope of the case. This is seen by the explanation of the prosecution of Bagosora, where they say that we will exempt ourselves from requiring that all the elements are from one act.
Ms. Guissé says, if there is a murder then it is a murder, and you cannot establish extermination on that basis. There are different crimes sites that are listed at which extermination was charged, and prosecution has to prove extermination to a specific site. What the prosecution is doing is taking the extermination as a whole, but that was not the charge.
The same thing applies to the the crime of enslavement: there are two cumulative conditions which are the exercise of ownership and the imposition of forced labor. The prosecution says that it is one or the other, but it is the two, taken together. Furthermore, the real problem we face as regards the prosecution brief and closing arguments is that they rely on legal characterization and forget the facts, they have a lack of rigor regarding the facts.
Next, Ms. Guissé reviewed the evidence and the prosecution’s approach to each of the four worksites.
In the Tram Kok Cooperative there is no rigorous examination of the evidence and the charges. In the closing order, when you read about Tram Kok, you are under the impression that there are eight communes, which would be the communes requested in the introductory submission and through investigation. Investigators learned of the 8 communes. In normal proceedings, the prosecution should have just listed the eight communes, but there is no supplementary submission for more, and prosecution refer to 12 communes, and here we are out of scope of trial. Ms. Guissé requested that the Chamber not to take into account information not in scope of closing order.
Another point which shows how the prosecution does not focus on facts is the crime of imprisonment and treatment of Buddhists. In the issue is the treatment of Buddhists, we take the exact charges, Khieu Samphan is charged with religious persecution against Buddhists, there are no charges of murders of Buddhists, yet the prosecution refers to murders of Buddhists, and while those are in closing order, they are not in scope of 02/02. We have to look at the legal characterization of those facts, and find if you can find the Accused guilty on that basis.
Ms. Guissé next referred to the presentation of one of Nuon Chen’s counsel, Doreen Chen on Kraing Ta Chan and Phnom Kraol. For Kraing Ta Chan, Ms. Chen had clearly exposed the documents that are not reliable and whose chain of custody was not known, and that is problematic. For Phnom Kraol, Ms. Guissé said that defense was told it was a complex. The prosecution relied on a key civil party testimony, but it turned out the person “was detained at a prison in the Phnom Kraol area,” so not a key witness, and not at Phnom Kraol. With regards to Au Kanseng, the prosecution gave a presentation on Khieu Samphan that there was communication between Au Kanseng and the center, but it provides no evidence, so it is an assumption. Moreover, Son Sen was a member of the standing committee, but Khieu Samphan was not a member of standing committee and the prosecution expanded their definition to persons associated with the standing committee. That is not evidence and that is not criminal procedure we should follow – they are changing the burden of proof.
Ms. Guissé will continue with the 1st January Dam tomorrow. Judge Nonn adjourned until 9 a.m. tomorrow, Khieu Samphan defense will have the morning to conclude their closing statements, and the civil party rebuttal will start in the afternoon.
Khieu Samphan and Evacuees from the East
Civil Party Kheav Neab concluded her testimony today. She gave more details on her encounter with Khieu Samphan and the disappearance of her husband and family members. An anonymous Civil Party testified in the afternoon. He provided information about the evacuation of people in the East Zone to Phnom Penh and Battambang and a speech that was given by Khieu Samphan.
Disappearance of Family Members
Ms. Kheav Neab continued her testimony today. Civil Party 2-TCCP-1063 was on the reserve. Judge You Ottara was absent due to personal matters and was replaced by Judge Tou Mony. The floor was then handed to the Co-Prosecutors to put questions to the Civil Party Kheav Neab. Senior Assistant Prosecutor Vincent de Wilde wanted to know whether any of her family members were officers or soldiers of the Lon Nol government. She replied that she had an uncle who came to Kampong Chhnang Province and disappeared since. The family members of her husband’s side did not become soldiers for the Lon Nol government. Her uncle was called Chhoun Chhoeun. He disappeared after 1975. She received this information from someone who lived in the same native village. That person told her that there had been an appeal to former soldiers to identify themselves. Her uncle did so and disappeared. “My uncle fell into the trick.” Another person called Ro did not identify himself and did not disappear. It was later found out that he was a former Lon Nol official, after which he also disappeared.
In 1978, her husband brought her to join the celebration of New Year. From that time onwards she was assigned as a cook. The market where she worked was known as Ministry 870. Mr. de Wilde asked whether her husband changed status at some point.[1] Her husband was a simple worker to store rice at the warehouse when he was stationed at the market. He did not become a cadre.
Khieu Samphan
She saw Khieu Samphan once. Her husband had told her that “he was Angkar” and that he was “Ta Khieu Samphan.” He handed blue-white kramas to the people at the market. They were evacuees from the east. At this point, Anta Guissé objected, explaining that this fell out of the scope of the trial. Mr. de Wilde said that it concerned the role of Khieu Samphan and the definition of enemies. The role of the accused was relevant even if the acts themselves were outside the scope. Nuon Chea Defense Counsel supported her objection. The objection was overruled, as long as the Third Population Movement Phase was not asked about. The Civil Party said that she saw him distribute the krama to one elderly woman. However, there were many people there. Khieu Samphan Defense Counsel Kong Sam Onn said that the question was repetitious, since she had said several times that she gave one krama to one person. She was aware that they were from the East Zone and that they were sent to the Northwest Zone, because she witnessed the event with her own eyes.[2] Her group had asked them where they came from, and they told them that they were from Prey Veng. At this point, Ms. Guissé objected again.
They’re talking about facts in regards which we cannot defend our client.
Trial Chamber President Nil Nonn said that the questions should focus on the role of the accused. Other facts were supplementary only. He said they should “avoid wasting time.” Mr. de Wilde referred the chamber to several Written Record of Interview, in which the fate of people who wore blue scarves was mentioned.[3] He then moved on.
Disappearance of her husband
Her husband was taken away with a person called Run. Mr. de Wilde said that the date that was indicated was October 1978.[4] She only found out about the details of his arrest when she saw the document. Ret, who lived in Siem Reap, told her that her husband was either imprisoned at Prey Sar or S-21. Her husband, Ye and Run were arrested. She did not see their arrest, as she was in the kitchen. When she came back and could not find her husband, her three year old son told her that her husband was taken away with Nhe and Run.
Run was not married yet. Ye was married to Nat. His wife was taken away at the same time as the Civil Party herself was taken to a pagoda. There were four or five women and one man (called Hom), who were in the same group. Some of the women who went along with her were accompanied by their husbands, while others were not. Mr. de Wilde asked whether the pagoda Wat Chey Oudom was under Office 870. Ms. Guissé objected and said that Civil Party had only referred to Ministry 870. Mr. de Wilde rephrased his question. The Civil Party replied that she did not know under which authority the pagoda lay.
Mr. de Wilde presented several documents to the Civil Party and asked whether she knew the person by the name Ang Ky Peng Ly that could be seen on the list, which Ms. Neab denied. He asked her about Kong Choy, alias Choeun, and Thulk. She said that she could say that one of the persons’ on the list was her husband. Run was her husband’s friend. Mr. de Wilde pointed to a list of people who were interrogated at S-21 and named in particular So Sour, alias Vuy.[5] She did not know when he disappeared. “He simply disappeared.” She did not know who took over the supply office afterwards. Mr. de Wilde asked about San Ryt Sous, alias Sao, who was 28 years old at the time. She said that she was not familiar with the name. She did not know who took charge when she left.
Mr. de Wilde asked whether people from her unit or her husband’s unit disappeared between April 1975 and the time that she was brought to the pagoda. She replied that she was taken away in a car. With this, Mr. de Wilde concluded his line of questioning.
Before the break, there was a brief discussion about whether 2-TCW-1069 could be heard after the conclusion of 2-TCCP-1063, as two scheduled witnesses and Civil Parties were sick. Mr. Koppe agreed starting questioning the witness tomorrow afternoon.
Mr. de Wilde clarified that they would not be ready to put questions to the witness. Mr. Koppe said that they were not ready yet, either, but that he was “willing to sacrifice, and I think the Prosecution should be, too.” Ms. Guissé said that “we are not ready at all” and that it was “a bit tight” to start with the witness tomorrow.
At this point, the President adjourned the hearing for a break.
Separation from her husband
The president announced that 2-TCW-1069 would be heard tomorrow. Mr. Koppe said that he had no questions for this Civil Party statement. However, the 88 page-long DC-Cam statement of 2-TCW-1070, who was closely related to 2-TCW-1069, was only available in French.[6] Calling the witness was therefore “highly problematic.” There was an almost 20-minute discussion on this matter. The president announced that the chamber would review the matter during the lunch break.
As the Nuon Chea Defense Team did not have questions for the Civil Party, the floor was handed to the Khieu Samphan Defense Team. She asked when she had taken an oath before the iron statute, which the Civil Party had said before, as Civil Parties did not have to take an oath. National Civil Party Lead Co-Lawyer Pich Ang clarified that she had said that she was willing to take an oath.
Ms. Guissé moved on and asked whether she met her husband in the village and whether she had known him before her marriage, which she confirmed. “We knew each other since birth.” His birth name was Keng Choeu. This changed to Heng Choeun during the revolution. Her husband left for the battlefield in 1974. She met him once in 1975, where they spent around half a month together before being separated. They then reunited again in 1978. She saw him at the market, where he worked as a laborer. She had sought permission to see him. In 1978, she requested to see him again. “And then we were separated and did not see each other again forever.” In 1978, she was brought to join the New Year celebration. She did not return when she came for that event. They drove a vehicle to pick her up together with her husband in 1978. She was tasked to cook food that was stored in a warehouse. The kitchen was at the place where she slept. The sleeping quarter was around 50 meters away from the warehouse. She got to know the two people who were arrested along with her husband, Run and Ye, when she came to Phnom Penh for New Year. Her husband and the two people worked and ate together. They ate the food that she had cooked. Sometimes she would cook for forty people and sometimes for fifty. There were three or four cooks in the kitchen, so her child would play in the kitchen. Her child was with her husband, which was why her child knew about the whereabouts of her father. Ms. Guissé quoted the Civil Party’s statement, in which she had said that she witnessed the event herself.[7] The Civil Party reiterated that her son saw the event and that there may have been a mistake in her statement. She said she had poor eyesight and high blood pressure, which was why her memory did not serve her well. She said, however, she had agreed to her statement when she signed it. She repeated that her son told her that her husband was put in the vehicle.
Ms. Guissé then inquired whether she understood it correctly that she was sent to a rice field. She confirmed this and said that she was sent to Chey Oudom, where she worked in the rice fields, on the day that her husband was arrested.
Ms. Guissé asked about her period at Battambang.[8] She could not recall the month, but she estimated February or March. It was when the rice yield was collected. She was pregnant at the time, so she had to look after the children of the workers who were in the rice fields. This was in 1978. Ms. Guissé asked about the time period, as she had said that her husband was arrested in October 1978. Ms. Neab said that she was with her husband in April 1978. They separated in December of that year. She was seven month pregnant with her second child when her husband was arrested. She was transferred to Battambang in March.
At this point, the President adjourned the hearing for the lunch break.
Khieu Samphan
The floor was handed to the Khieu Samphan Defense Team, who asked her about the occasion when she saw Khieu Samphan. It was to the north of the market where people were assembled, including the evacuees. He wore black shorts and a white shirt. She did not see him leave. She did not hear him speak. Her husband was next to her at the time.
Ms. Guissé handed the floor to her Cambodian colleague Kong Sam Onn who asked her about the marriage. She said that monks were present, albeit only a few. The name her husband registered his marriage under was Keng Choeu. He was also called Heng Choeun and Kung Choeun. Ta Keng was the father of Choeu and Ta Kung the father of Ta Keng. Mr. Sam Onn inquired where she got her name from. There was some confusion about the names, but the Civil Party said that Kung was her husband’s grandfather. She did not know their surnames, as she was young at the time.
She got the information about the fate of her husband about one month ago. When Mr. Sam Onn asked about why she had not been taken part in Case 001, it was said that the prisoners’ list was not available at the time. He said that Kung Choeu was mentioned as a combatant in the supply office – it had therefore been mentioned before and not only in the new list.[9] She said that she did not know if her husband used his grandfather’s name Kung.
Civil Party Impact Statement
The things that remain with me [are] the sorrow and pain that I have from the previous regime. I was in great difficulty while I was living with my husband. I was pregnant back then and I was forced to travel by national road to Battambang Province. At the time I also had my young child with me, and I did not have my husband with me while I was travelling […] Three days after I delivered my second child [..] I was forced to relocate again. I have so many sorrows and pains with me, and I’d like to ask Khieu Samphan, […] that they made the revolution in order to liberate people who suffered under the previous regime. […] And he claims that he liberated the country through the revolution, but how come people die? And where was he? And why didn’t he see that? And why didn’t he see the suffering that people were in? I’d like to ask him that question in his capacity as a leader of the country.
New Civil Party
A new Civil Party was introduced to the court. He remained anonymous due to ongoing investigations in other cases. Civil Party Lawyer Ty Srinna asked where he lived before April 1975. He replied that he lived in Svay Rieng Province. He was a Lon Nol soldier. The Vietnamese soldiers forced people to leave the area, because the Khmer Rouge were in the area. A friend of his was shot dead. He was then evacuated to Ta Chey Village, Kampong Chamloang, Svay Rieng Province. His brother was accused of being a Lon Nol soldier and called him for a study session, “but in fact he was not taken away to study, he was taken to be killed.”
Around 500 people were imprisoned, including the Civil Party. During his imprisonment, he was assigned to work “very hard.” They gave two rice tins for a group of ten people. “I was forced to work hard, for example to dig canals.” He then corrected his earlier statement and said that the Khmer Rouge soldiers evicted them from their homelands. Some civilians helped protecting the village by standing guard and were accused of “helping the regime.”
He met Khieu Samphan at Svay Ampil Market, where Khieu Samphan distributed rice and clothes for them to continue their journey to the Southwest[10]. They were waiting for vehicles to pick them up and bring them to the train. They all came from the east: Kampong Cham, Svay Rieng and Prey Veng. The market was large enough to accommodate them, but they slept close to each other.
Khieu Samphan at Chbar Ampov Market
Ms. Srinna inquired about her statements, in which she had said that he arrived at 10 am at Psar Thmei.[11] He had said at another place that he arrived at Chbar Ampov Market at the time. He replied that he first did not know Phnom Penh very well and thought it was Central Market. He later realized that it was Chbar Ampov Market. It did not have a concrete wall, but it did have a roof and a concrete floor. It was a white zinc roof. There was an open space inside the market, which was why they were instructed to wait there. It was around 50 meters from the river. He knew the area Nheak Leung. They arrived at this location at some point, but the market they arrived at was not Nhek Leun Market. It was to the north of National Road 1.The bridge was “passable” at the time, because Khmer Rouge soldiers were guarding the bridge.
Khieu Samphan came at around 8 am with around ten of his colleagues some time in 1977. He had watched a film in which Khieu Samphan was shown, which was why he was certain that Khieu Samphan arrived. People were instructed to line up to listen to Khieu Samphan’s speech.
He said he made a revolution in order to eliminate the Lon Nol Regime, and another point was to eliminate the capitalists, feudalists, the intellectuals. He did not want them to exist.
Khieu Samphan wore black clothes and wore a blue scarf. He also had black car tire sandals. His work group wore the same black clothes.
He could not recall in which row he was located, but said that it was somewhere in the middle between fifteen and twenty meters away from Khieu Samphan.
Ten minutes after Khieu Samphan’s speech they distributed the material. “However, it was only a symbolic gesture, as only ten to twenty families received those materials.” Khieu Samphan had a microphone that was 15 to 20 centimeters wide and forty to fifty centimeters long. His work group distributed the material to everyone later. He received his material directly from Khieu Samphan.
The Civil Party received a black shirt (that was not entirely black, however), a blue scarf, and a pack of medicine.
It took them more than hour to go to the railway station. Ms. Srinna inquired what exact words Khieu Samphan used.
“After he arrived, he told people there that we make the revolution in order to topple the Lon Nol regime. Because Lon Nol was the one who opposed the revolution. And another point was for us to oppose the capitalists, feudalists and intellectuals. And later on, he said that in our revolution we would not allow different classes of people, that is the rich and poor and that everyone would be equal.”
He also said that they would be evacuated in order to escape from the “yuon invaders.” They were told to respect the party lines strictly and “not to betray the party.” If they did so, they would be killed. “Because those people would be [of] no use to keep.” The Civil Party could not recall all points of the speech.
Imprisonment and Family Members
Ms. Srinna asked for the reasons of his imprisonment. He replied that he was imprisoned, because he was accused of being a Lon Nol soldier. He had quit the army and became a civilian. He was encouraged to join the militia like his father. “And they accused me of being in that role.” The prison conditions were “very unacceptable.” Five hundred people were imprisoned in one place and they could not sleep because of the bugs. “At the time they did not torture me […] but they used us to dig canals, to pull the carts.”
The Khmer Rouge investigated their background and they found that he had been a soldier before. University students were also detained there. There was a shooting that took place along the road. In the morning, they went “out to see.” They were threatened. “They allowed us to go and see the killing site. We saw many dead bodies. They allowed us to see those dead bodies, and then we were told to go back. They told us not to run away. If we ran away, we would be shot dead. Each day, there would be one or two people taken away and they would be killed [at a nearby hill].” At this time, he was evacuated to a nearby village.
His brother was evacuated together with his father to Prey Veng. They found out that his sister’s husband was a Lon Nol soldier. As a result, his sister was killed at Koh Dach.
They drowned them in a net in the river. We were shocked to hear this.
His father died at Bak Chin Chean. With this, Ms. Srinna concluded her line of questioning.
Evacuees from the East Zone
International Co-Prosecutor Nicholas Koumjian inquired whether he was married during the Khmer Rouge. He denied this – he had been married during the Lon Nol regime. When he put questions that related to Population Movement III, Ms. Guissé objected and said it was outside the scope. Mr. Koumjian said that parts of the movement phase were included. Moreover, it dealt with Khieu Samphan’s speech. The objection was not sustained.
Mr. Koumjian repeated his question and asked why he was traveling through Phnom Penh and where he was going. He replied that he travelled from Svay Rieng to Phnom Penh to travel to Battambang. The first night, he travelled from Ta Chey Village to Traol Kor. Mr. Koumjian wanted to know whether all the people who were at the market were from the East Zone, which the Civil Party confirmed. The evacuees included men, women, and children. There were armed guards positioned alongside the market in order to prevent them from escaping. Khieu Samphan arrived with two cars. The materials were transported on a vehicle and unloaded and distributed there. The truck had a military color.
People were loaded onto a truck hurriedly. When he heard that if they betrayed the party they would be killed, he felt afraid. Even people who had not committed wrongdoings disappeared. “I felt shocked and very worried,” he said. Initially he told them that he was a civilian, but later he felt that he cheated them. “Many days later they found out my background. They took me away and imprisoned me, but fortunately I did not die.” At the time, he was not aware of what would happen.
Mr. Koumjian asked whether he knew if any of the former soldiers survived. He replied that some of “those who were victimized” alongside him survived. There were seventy families who were evacuees from Battambang, twenty of which survived. “Allow me to keep their names confidential.” Mr. Koumjian concluded his line of questioning. The Civil Party’s testimony will continue tomorrow morning at 9 am.
[1] E3/6425, at 01114153 (EN), 00544168 (KH).
[2] E3/6425, at 01152693 (FR), 01114154 (EN), 00544170 (KH).
[3] E3/5542, E3/7708, E3/970.
[4] E3/10744.
[5] E3/2178, at 00021091 (KH), 00631981 (EN), 00631977 (FR).
[6] E3/10717.
[7] E3/6425, at 01152692 (FR), 00544168 (KH), 01114153 (EN).
[8] E3/9479, at answers 31-33.
[9] E3/342, at 00329780 (EN & KH).
[10] This may have been a translation issue. He later said Northwest Zone and Battambang.
[11] D5/545, at 00397758 (KH), 00422204 (EN); E3/5932a.
Featured Image: Civil PArty 2-TCCP-1063 (ECCC: Flickr).
“Your Honors have My files and My Life in Your Hands” – Khieu Samphan Seeks Acquittal
Today, February 18 2016, was the last day of Appeal Hearings in Case 002/01. While the Nuon Chea Defense Team did not actively participate and relies on the appeal brief to argue for their case, the Khieu Samphan Defense Team sought acquittal of the accused or, if the Supreme Court Chamber should decide to convict the accused, limit the sentence to a fixed term and therefore reduce the life sentence that had been imposed on him in the Trial Chamber Judgment. Large part of today’s hearing dealt with the applicability of JCE I and III. At the end of the session, Khieu Samphan held a speech to address the Chamber. The Appeal Judgment is expected mid-2016.
Answers to the bench’s questions: Co-Prosecution
The Supreme Court Chamber Greffier confirmed the presence of all parties, with the exception of the international defense counsel for Nuon Chea. The co-appellant Nuon Chea followed the proceedings from the holding cell. The President announced that the Co-Prosecutors could make comments on the questions put forward by Judge Agnieszka Klonowiecka-Milart of the third thematic session.
International Co-Prosecutor Nicholas Koumjian first emphasized that there was sufficient evidence that the zone armies were under the control by the Center. He said that troops were taken to form a Central Army. He said that this showed clearly that there was a “hierarchical military force”. He said that an incident had to be proven beyond reasonable doubt when it had been charged individually. The Chamber did not convict them for murder in itself, since they had found this to be subsumed under the conviction of extermination.
He cited a few sources to show that a precise designation of numbers of deaths was not necessary to be determined. Instead, killing on a large scale had to be proven. The Chamber was not required to find on an individual basis that a murder had occurred beyond a reasonable doubt. The Chamber had to proof the killings on a massive scale beyond reasonable doubt in its totality.
He then gave the floor to Senior Assistant Prosecutor Dale Lysak. Mr. Lysak referred to several testimonies that related to the killing of people during the first evacuation. First, he cited the testimony of Yim Sovann, who had been evacuated from Phnom Penh and who had described having witnessed a car that had run out of gas with people pushing it. The Khmer Rouge people took the driver out of the car and shot him. He had also witnessed the execution of people who had locked themselves into their houses, refusing to leave.[1] There were 48 accounts of people who described killings, 32 of which were eye-witnesses, of which 11 gave life testimony – the other were accounts obtained through Co-Investigating Judges documents, Civil Party applications and other sources.
Next, he referred to the testimony of Civil Party Chheng Eng Ly, who had witnessed a dead woman while crossing Monivong Bridge, whose baby was still on top of her.[2] This Civil Party described how the Khmer Rouge “tore the baby apart”.
Mr. Lysak then referred to the testimony of Pech Srey Phal.[3] This person had testified about the death of her baby during the evacuation of Phnom Penh. Mr. Lysak said that people were told that they left only for three days and therefore had insufficient food. The same person had also testified about the deaths of people who left the Russian Hospital in Phnom Penh.[4] Mr. Lysak argued that when forcing people to leave a hospital, “no matter how sick” and forcing them to walk without any assistance, “you know” that some of them would die.
Mr. Lysak further cited journalist Jon Svain, who had described the evacuations in his contemporary journal.[5] Mr. Lysak gave a few examples of top Lon Nol officials whose execution was proven: Long Boret (prime minister), Lon Non (brother of Lon Nol), Sirik Matak (deputy prime minister). There had been a broadcast on the radio station, in which Khieu Samphan had announced that these people were to be killed.[6] Mr. Lysak said that this clearly showed the intent to kill. “You cannot have stronger evidence than a broadcast on the radio”.
For Long Boret there was a radio broadcast calling for the Lon Nol officials to surrender at the ministry of information. Both Al Rockoff and Schanberg testified that there had been 50 prisoners, including Lon Non and several generals, who were gathered there.[7] They both had testified that they saw the arrests of Long Boret. Mr. Lysak said that this was not “revenge killing”, but organized acts, since the people were in close contact with the leadership through radio communication.
Mr. Lysak further recounted the fate of Sirik Matak, who went to the French embassy together with 50 representatives of FURO (organization of ethnic minorities), but who was subsequently killed by the Khmer Rouge.[8] Moreover, Ieng Sary had announced in early November 1975 at a press conference that Lon Non had been killed.[9] Further, it had been said that leaders who remained in Democratic Kampuchea had been executed. Lastly, Nuon Chea had confirmed that the top Lon Nol officials had been executed.[10] At this point, Judge Klonowiecka-Milart interjected and asked whether the killing of officials was not part of Case 02, which Mr. Lysak firmly rejected.
Khieu Samphan Defense Team
Next, Khieu Samphan Defense Counsel Anta Guissé said that she had talked about the nexus of Khieu Samphan himself to the decision to evacuation. She argued that the Chamber was “mixing up” two meetings in the judgments. The first was in June 1974, in which the witness had said that the evacuation of Phnom Penh was not discussed. She referred to a few people who had said that the meeting did not discuss the evacuation. Even if Khieu Samphan was present, no details had been provided about the discussion of evacuation.
Another witness had said the evacuation took place “because of the war”[11]. She cited another witness to support this argument. “So we have a problem here”.
Prince Norodom Sihanouk had referred to traitors, which was the context in which Khieu Samphan had delivered a speech (E3/120). She argued that the Prosecutors took this speech out of the context. “It is sad, it is terrible – during war people die”. She submitted that in war a goal was always to kill the opponent to achieve victory.
She said that the Chamber referred to insufficient evidence that Khieu Samphan was involved in the decision to evacuate Phnom Penh. She specified that no source had been given why the principle of in dubio pro reo did not apply then. As for the Martic case, she said that the Martic situation was different, since this took place in an armed conflict. She pledged: “of course terrible things happened during the evacuation”. However, it was “completely erroneous” in her view to speak about Khieu Samphan’s desire for this to happen. She said that the Co-Prosecution had not answered the question whether dolus eventualis existed in 1975. Moreover, even if the decision had been taken by the Standing Committee, she said that he was not even part of this. “This is the way that the Chamber manipulated law.”
Mr. Koumjian said that Ms. Guissé had answered points of the Prosecution, for which there was no scheduled time in the hearing. He requested to be able to react.
He said that the Chamber had explained in footnote 359 that the testimony of Ny Kan, the brother of Son Sen, was inconsistent and was therefore unreliable. He cited a Khmer saying, which said that the back foot followed the front foot, which he interpreted to mean that subordinates follow leaders. He said that Khieu Samphan had much influence and people followed him. He agreed with counsel that his speech had to be put into context – namely the brutality of the regime.
The President then announced that the next session would be introduced now.
Grounds of appeal related to the sentence
The Co-Rapporteur summarized that Khieu Samphan had argued that the accused should be at the center of the sentencing, and not the general public and deterrence. They argued that the Trial Chamber had not taken Khieu Samphan’s individual and mitigating circumstances into account. The Trial Chamber had failed to take into account his level of education and his “good character”. Khieu Samphan submitted that he was “trusted and respected”.
The floor was granted to Ms. Guissé. She said that it was not easy to plead on the quantum of sentencing when pleading for acquittal at the same time. “It is necessary to come up with subsidiary solutions”. She said that the Chamber had “sinned by favoring symbol over law.”
She said that the absence of individuasiation of sentence, the inclusion of aggravating circumstances, and omitting mitigating circumstances,
She alleged that there was an error of discretion by the Chamber. It was about “dissuasion and punishment”. However, this did not mean that the sentenced person should not be “at the heart of the sanction”. The Trial Chamber had alleged that Khieu Samphan had a symbolic position and did not have any hierarchical power over others. She referred to the Nuremberg Trial case, in which the accused Funk was sentenced for war crimes, crimes against humanity, and crimes against peace.
She noted that the “rather faulty reason of the Prosecutors” told them that the gravity of the crime was aggravated by the circumstances. She argued that “the real question is the character of the accused.” The Chamber had cited aggravating circumstances due to the authority he had enjoyed. She said that the Chamber had never demonstrated which authority he enjoyed and how he had abused this power, while only abuse of authority was an aggravating circumstance.
As for the degree of education that the Chamber had used for an aggravating circumstance, the Chamber had not based itself on international law. She said that “all people who came to testify” in front of the Chamber talked about the human qualities of Khieu Samphan and the fact that they “never saw him say anything negative about anyone.” This should have been taken into account by the Trial Chamber. However, all errors lead her to plead for acquittal of Khieu Samphan and not only a reduction of the sentence.
Submissions by the Co-Prosecutors
After the first break the floor was given to the Co-Prosecutors. National Co-Prosecutor Chea Leang said that the maximum sentence was life imprisonment and argued that it was the most appropriate for the accused. As held in Case 001 and 002/01 judgments, the primary factor was the gravity of the convicted person’s crimes. Nuon Chea and Khieu Samphan had been convicted of crimes against humanity, extermination, encompassing murder, political persecution and other inhumane acts, comprising forced evacuation and enforced disappearances. The Trial Chamber found that at least 250 Lon Nol officials had been executed at Tuol Po Chrey and that the number of victims amounted to at least 2.430.000 during movement phases I and II. The gravity of crimes was aggravated by the fact that some of the victims were particularly vulnerable, such as children, elderly, sick people and pregnant women or women who had just given birth. Nuon Chea and Khieu Samphan were amongst the relatively small group of the people who were most responsible and were key actors in the formation of the policy. “the evidence amply shows that they knew the crimes would be committed and were involved” in committing them. Nuon Chea was deputy secretary of the party and standing member of the Central Committee, while Khieu Samphan was first a candidate member and then a full-rights member of the Central Committee. He “disseminated and endorsed the common policies”. He utilized his trusted character to facilitate the accomplishment of the crimes. Both Nuon Chea and Khieu Samphan abused their authorities to accomplish the crimes. Both were highly educated and understood the conduct they were engaging in. Thus, there were no circumstances that could mitigate these matters. Nuon Chea had not challenged the sentencing, while Khieu Samphan had argued that the life sentencing was too high. He had not determined what sentence should be imposed instead. She said that Khieu Samphan had misrepresented the Trial Chamber’s findings. Despite the fact that he had limited authorities in some regards, he was the public representative and played an important role in bolstering the legitimacy of the movement.
He was a frequent attendee of the meetings, a leading member of the Office 870 and had other authorities. She submitted that Khieu Samphan had abused these authorities. He had aided, instigated and abetted the crimes. He had been a key actor in formulating the policies. His involvement was substantial, she said. The argument that he had limited authority was merely “evasive” about the role he played.
The Chamber had held that he was intelligent and well-educated. He could therefore fully grasp the nature of his acts and the conduct he engaged in. Moreover, the Chamber “rightfully found” that the “isolated circumstances” that someone testified that Khieu Samphan had a good character could not mitigate the gravity of the crimes. The aggravating circumstances neutralized any mitigating circumstances. Life imprisonment could also stand even if mitigating circumstances existed, if the circumstances were appropriate. Thus, the Supreme Court Chamber should no amend the sentencing of the Trial Chamber. The Chamber itself had set out that the party seeking reversal of the sentencing carried a burden to proof legitimacy of this claim. She submitted that the Trial Chamber had not committed any errors in this regard. “In any event, Khieu Samphan had failed to carry his burden” to demonstrate these errors. With this, she finished her submission.
Appeal by the Co-Prosecutors
The Co-Rapporteur said that the Co-Prosecutors had submitted that the Trial Chamber had failed to submit JCE III. The Supreme Court Chamber had the power to admit errors even if these did not have any effect on the sentencing. They had referred to Internal Rules and jurisprudence of the ad-hoc tribunals to support their position.
They had submitted that this form of liability was “firmly entrenched” in customary international law. They requested that JCE III was indeed applicable in these proceedings.
The floor was then granted to the Co-Prosecutors.
International Co-Prosecutor Nicholas Koumjian said that the appellants could also be held responsible under the extended category of JCE. The Stakic case showed that a perpetrator could be held responsible if 1) it was foreseeable that the crime might be perpetrated by a member of the group and 2) the accused willingly took that risk.
The Tadic Appeal Judgment, he argued, set out in paragraph 220 that the criterion was the state of mind in which a person was aware that the actions of the group were most likely to lead to that result and willingly took that risk, even if not intending to commit the crimes – the dolus eventualis. Thus, JCE III held that when someone joined a group with a common purpose, taking the risk that co-members committed crimes within the jurisdiction of the court, this person should be held responsible.
An additional qualification could be added: the common purpose that was criminal had to increase the risk that the crime would be committed.
He asked whether it was not foreseeable that if you gave teenage soldiers opportunity to enslave people, the power to execute them and power over women, that these teenage soldiers might rape women? He said that this was absolutely the case, even if the official policy was not to rape women. The JCE members had “willingly taken that risk”.
The mens rea required that the crimes had to be foreseeable and that their contribution had to be substantial. This also applied even when the act itself was prohibited by the defendant or the perpetrator was not identified.
The law at the time was that you were held responsible when the crime was foreseeable, even if the crimes were unintended.
He said that the JCE III was part of the customary international law, despite what the Trial Chamber had said. The principle nullum crimen, sine lege only applied to the conduct and not the mode of liability. The common criterion of JCE III and JCE I and JCE II was that a person had the intent the commit a crime within the jurisdiction of the tribunal. They made an intentional and significant contribution to the criminal enterprise. He said that the person had made a culpable mens rea. Not to hold these perpetrators responsible for the crimes they foresaw and willingly took the risk for would amount to a violation of international law and not serve the purpose, namely to serve justice. At this point, the President adjourned the hearing for a break.
Reply by the Khieu Samphan Defense Team
In the third session, the floor was granted to National Khieu Samphan Defense Counsel Kong Sam Onn. He argued that none of the arguments of the Co-Prosecutors in relation to JCE III could convince the Supreme Court Chamber that the Appeal was admissible. What they had just heard, he said, made their response to the Prosecutor’s Appeal even more convincing.[12] He addressed the Chamber on four different grounds to dismiss this appeal.
The appeal was inadmissible, because
- the Prosecutors had no interest in litigation. They did not appeal the Trial Chamber’s judgment, but a decision that was issued at trial.[13] The Co-Prosecutors were not harmed by the judgment and could therefore not appeal;
- The Co-Prosecutors had not filed the appeal to the competent court. The Supreme Court Chamber was now seized of Case 002/01, while the appeal of the Co-Prosecutors was not based on the judgment of 002/01. He argued that the Co-Prosecutors had quoted the testimonies of other cases that did not belong to 002/01. For example, the Civil Party Ahmad Sofiyah had testified in Case 002/02;
- The Co-Prosecutors had waived the right to appeal and did therefore not have the standing to appeal the judgment. They did not file the appeal in accordance with the Internal Rules of the ECCC (74(2)). They had the right to file an appeal against a decision by the Co-Investigating Judges. The Co-Investigating Judges had issued a Closing Order, which stipulated about JCE I and II, and not JCE III. The Trial Chamber had removed JCE III, which was requested by the Co-Prosecutors. This decision was issued on August 20 2014. That decision was filed on 002/02. The decision stated that JCE III did not exist as customary international law before 1975. The Co-Prosecutors did not justify the need for intervention. The issue had been already tried twice: once before the Pre-Trial Chamber and once before the Trial Chamber. Thus, the appeal should be dismissed. It was not applicable under the principle of legality. The Co-Prosecutors had exaggerated, cited case law that was not relevant, and distorted evidence. He submitted that JCE III was not recognized under Cambodian and International Law between 1975 and 1979. It was created only after July 15 1999.
- The Co-Prosecutors had not proven that JCE III was foreseeable at the time of the crimes. It was impossible for the Co-Prosecutors to proof that JCE III existed before the alleged facts. JCE III was “absolutely not” foreseeable and assessable at the time.
As for the question posed by the Chamber of the definition of JCE III, he said that JCE III was not applicable. He said that foreseeability was not an objective element. It lay with the person and was therefore subjective. It had to be subjectively foreseeable. Foreseeability should therefore be established based on the accused. He referred the Chamber to case law to show that the general foreseeability was not sufficient either in fact or in law.[14] He reiterated that JCE III was only created at a later point and was therefore beyond the temporal jurisdiction of the Chamber. He therefore requested the Chamber to declare the Appeal inadmissible.
Questions by the bench
One of the judges asked counsel whether “foreseeable” or what was “foreseen” was the criterion. Mr. Sam Onn replied that the crime had to be assessable to the accused.
Judge Ya Narin asked counsel whether the accused should not be held responsible criminally at all, if the crimes were not foreseeable. Mr. Sam Onn said that the first point was about the inadmissibility of the Co-Prosecutors’ appeal.
Mr. Sam Onn then referred to an Appeal Judgment of the ICTY of 03 April 2007 (IT-99/36/A, document F30/11.1.17, paragraphs 365). He said that the language of this judgment was clear that the accused had to intend to participate or willingly took the risk to participate. Moreover, the crime had to be foreseeable.
Judge Klonowiecka-Milart interjected and said that counsel had “made [his] point clear”. She addressed the Co-Prosecutors and asked about modes of attribution of dolus eventualis and recklessness. She asked for elaboration on the part of the Co-Prosecutors that this was a general principle of law that JCE modes of responsibility could be used. Mr. Koumjian said that the conversation was made “more difficult”, since all lawyers came from different systems. He said that JCE included the dolus eventualis in which the accused could foresee the risk of members of the group committing crimes and reconciling with it, while recklessness simply did not meet the standards of care. He said that intent under JCE I also included a likelihood that the crime would occur. He said that “substantial likelihood” was the best phrasing. He said international law would profit from using consistent language. Dolus eventualis belonged to JCE III, while dolus directis belonged to JCE I in form 1 and 2.
Mr. Lysak then gave references with regards to the evacuation of Oudong. He referred to Heder’s statement, who went to Oudong the day after the evacuation.[15] Nou Mao had also talked about the evacuation of this city and testified that many people died.[16] Moreover, Philip Short had written in his book about the population being evacuated and that officials in uniforms were separated from the rest of the population and killed.[17] David Chandler had also researched on the evacuation of Oudong.[18]
Moreover, a speech held by Khieu Samphan on April 5 1974 also mentioned the evacuation of Oudong.[19]
He also cited a report by the US Embassy that referred to an open letter.[20] Furthermore, two cadres who worked at Khmer Rouge headquarter had testified. Kim Vuon, who worked at B-20, had said that these statements came from Khieu Samphan. Phy Phuon had said that the main task by Khieu Samphan was to “write”. He then directed the Chamber’s attention to an interview of Ieng Sary, who had said that Khieu Samphan was a de-facto member of the Central Committee before becoming a full-rights member.[21] To call Khieu Samphan a “symbolic leader” was not appropriate.
Ms. Guissé requested leave to respond to the points that had just been made and to JCE III.
She said that they had talked about Cambodian domestic law and set out that JCE was not part of Cambodian law at the time.[22] As for Short’s account, she said that the Defense Team had asked him about the sources. He had answered that he spoke with “a number of villagers” and at least one or two people spoke about Oudong.[23] Next, she said that Nou Mao had not seen the persons who were allegedly evacuated from Oudong.[24]
Furthermore, she said that another important point was that Democratic Kampuchea was based on the principle of secrecy. They had only two Standing Committee meetings when Khieu Samphan actually took the floor. What he said was limited to his functions and to information that he received. She further said that “never, never, never, had the Chamber been able to establish his role in criminal activity.” He himself had never said that he knew about the crimes committed.
The President then asked about the failure to summon Heng Samrin and wanted to know what remedy the Trial Chamber’s failure to do so, should the Supreme Court Chamber find that the Trial Chamber had erred. Ms. Guissé answered that she could not speak on Nuon Chea’s behalf, who had made the application to call him. She said that it was impossible to return to the Trial Chamber but that it was important to remedy an error.
Mr. Koumjian answered that it was in the Trial Chamber’s discretion not to call him. He said that it seemed like none of the evidence that was available from Heng Samrin seemed to be exonerating, but he would not object for the Supreme Court Chamber to draw conclusions in favor of the accused from the interview.
Ms. Guissé then said that she had forgotten to give references with regards to Oudong.[25] She referred to a document, which indicated that “we should not forget that […] people had to engage in propaganda” when being in war. As for Phy Phuon, she said it was not clear what he had seen being written.
The President said that Internal Rule 109 (5) gave the accused the right to address the Chamber for a maximum of ten minutes. Nuon Chea had waived his right, but Khieu Samphan sought to address the Chamber.
Khieu Samphan then delivered a 10-minute speech.
Speech by Khieu Samphan
Good afternoon, Mr. President, and good afternoon your Honors. Good afternoon to everyone who is present, my sincere respect to venerable respect to monks residing in pagodas throughout the country. Dear my beloved countrymen. First of all, allow me to express my sincere thanks and gratitude to the Supreme Court Chamber for granting me the floor to express my opinions. I am confident that the Supreme Court Chamber is aware of the approach the Trial Chamber took in this trial, which led to my conviction to life imprisonment. The Trial Chamber had a pre-judgment of my guilt. With that determination, it sought and distorted evidence in order to confirm its prior decision. I have limited knowledge in legal and technical terms to submit to your Honors that the Trial Chamber distorted the evidence in my case. My lawyers have spoken better in this regard. What I want to say today, and what I want my countrymen to hear, is that as an intellectual, I have never wanted anything other than social justice for my country. At that point in time, I submitted a thorough proposal to reform the economy gradually in order to establish the foundation for economic independence for my country and to achieve a certain social equilibrium so there won’t be too large a gap between the poor and the rich. How could this be deduced that I wanted to see the killings of those men, women and children, or that I was a member of a JCE intending to kill the population?
Of course, in the 1960s, I wanted the economic reforms of the Sihanouk-Regime and I was against the policy of Lon Nol. However, I was also an independent intellectual with my own convictions. At the time, I believed in the Prince and that is why I came back into his government in the hope of making changes from within. With its independence and neutrality policy, he dared to refuse to be placed under the umbrella of the South East Asia Treaty organization defense, which is a military pact established by the United States of America through Southeast Asia, after the defeat of France at Dien Bien Phu. I thought that from this position of independence, the Prince would be able to adopt my proposal for a necessary reform to lead the basis for economic independence for the country and make it able to do without foreign aids, especially the US. But I realized that it was merely an illusion. I noted that in fact, he practiced a double-faced policy. He held other hand to the socialist countries, but on the other he allowed Lon Nol to lead repression against progressive and patriotic forces. And that’s how I was forced to flee into the forest.
In the context of the facts of the time marked by the struggle for independence of colonial people and the Cold War, while I was in the jungle, I saw the CPK leaders who demonstrated their patriotism in their fight against Lon Nol and the United States by relying on their own, independent self-mastery and self-reliant forces. I was convinced that after the war, they would be able to cope with the huge challenges of reconstructing the economies, the livelihood od the entire population while defending its national independence and sovereignty which was hard won with the greatest sacrifices of the people and nation to define the so-called policy of the communist party of Kampuchea, the Trial Chamber followed the same approach as that of the CIJ and Co-Prosecutors. They only looked at what happened in the basis. They failed to find out if such implementation at the local level consistent with the original objectives and directions that were established. This is a fundamental issue for me. I shall shout loudly that I never wanted to agree to any policy that is against the Cambodian people. I’ve never have wanted a policy that involves crimes against the population, as alleged by the Trial Chamber. What I heard during the court hearings, and what I have read during my many years of detention confirms my belief that the revolutionary ideology which I believed, was misguided by people who clung to their power of feudal laws. They were the people who wanted to retain their privileges and were concerned about their interests and did not understand that it was their duty to make every effort for the welfare of the population. Throughout the investigations and trial, the co-investigating judges, the Co-Prosecutors and the Trial Chamber all alleged that I had the power in the decision-making process. In reality, I was never given such right. This is a distortion of fact. In reality, it is the opposite. Today, your Honors have my files and my life in your hands.
I do not have any more hope for the Trial Chamber, as they even wanted to prevent me from working on my appeal briefs. And your Honors have the appeal brief by me and my lawyers. I asked you to please examine the evidence objectively with an open mind and without any prejudice, even though I know that they want to make my case a symbol of condemnation. I cannot find words to alleviate the suffering of the Cambodian people. All I can say is that I never had the intention to commit crimes or contributed to the commission of crimes during the evacuation of Phnom Penh, the event at Tuol Po Chrey, or in the context of what the Trial Chamber called the second phase of forced movement of the population. I never wanted any crimes committed against the population, nor participated in any plan to do what at any time during the period of Democratic Kampuchea regime. And that is what I would like your Honors to keep in mind when you make your decision in this case. Thank you your Honors.
The President announced that this concluded the appeal hearings. He thanked the parties for their submissions, security personnel, greffiers and everyone else who had contributed to the hearings. Once the deliberations were concluded and the judgment drafted, the Judgment would be pronounced in open court. A scheduling order for this hearing would be issued in due course.
The next Trial Chamber hearing will take place on Tuesday, February 23 2016, at 9 am.
[1] Testimony of Yim Sovann, 19 October 2012, at 14:16 and 14:20-14:27
[2] Testimony of Civil Party Chheng Eng Ly, 29 May 2013, at 15:32-34.
[3] Testimony of Pech Srey Phal, 5 December 2012; E1/148.1. at 10:01-10:06.
[4] Ibid., at 09:51-09:53
[5] E3/51, at S0003279 (EN), S00644713 (KH), 00597837-38 (FR).
[6] E3/1117.
[7] 28 January 2013, E1/65.1, 11:29-11:57; Schanberg: June 5 2013, at 10:50-11:02
[8] E3/2694; E3/2702; E3/2710; E3/2706.
[9] See E3/604 and E3/608.
[10] E3/4001R, “One Day at Puol Chrey”, at 22:07-22:11.
[11] 20 May 2012, at 10:21.
[12] F11/1.
[13] E313/3/1
[14] 03 April 2007, ICTY Appeal Chamber.
[15] Testimony by Stephen Heder, at 14:33 and 15:12-15:14.
[16] 19 June 2013, at 09:20 and 11:31-11:33.
[17] May 07 2013, at 13:34-13:38.
[18] E3/1593, “The Pol Pot Regime”.
[19] E3/167.
[20] E3/195.
[21] E3/573.
[22] F11/1, paragraph 75
[23] E1/903, after 13:37, May 27 2013.
[24] E1/2091, shortly before 11:36.
[25] E3/195, at 00412706 (EN).
Featured Image: Khieu Samphan at the Appeal Hearings (ECCC: Flickr)
Khieu Samphan Defense Counsel Arthur Vercken Resigns
Today, the Court published a letter by Khieu Samphan that indicates that Arthur Vercken has decided to resign as Khieu Samphan’s International Defense Co-Counsel. The Trial Chamber Judges and the other parties of Case 002 were informed in an e-mail by Mr. Vercken last Friday. Khieu Samphan states that he had received a letter from Mr. Vercken on November 20 that indicated his intention to withdraw as Khieu Samphan’s Co-Counsel in Case 002/02, while expressing his wish to participate in the remaining hearings of Case 002/01. Mr. Vercken did not publish any reasons for his decision.
Mr. Vercken’s last day in attendance at a trial hearing of Case 002/02 was three months ago – on August 27 – when he explained why he had walked out of the courtroom the day before.[1] Since then, his international colleague Anta Guissé has represented their client Khieu Samphan. On the first day of the appeal hearings on November 17, Mr. Vercken was present in the courtroom, but returned to France the following day when the Supreme Court Chamber adjourned the appeal hearings for an indefinite time period. According to Khieu Samphan’s letter, Mr. Vercken’s sudden return to France was also prompted by the terrorist attacks in France. Thus, Khieu Samphan could not “discuss his intention with [him].” In light of this, Khieu Samphan “decided to withdraw the assignment of Mr. Arthur Vercken as [his] International Co-Lawyer with immediate effect.” Hence, Mr. Vercken will neither participate in Case 002/02, nor defend Khieu Samphan in the last stage of Case 002/01.
Mr. Vercken has worked as defense counsel for two accused in front of the International Criminal Tribunal for Rwanda, defended one accused in front of the ICC and brought a case in front of the Inter-American Court of Human Rights.
At the same time, Nuon Chea Defense Counsel Victor Koppe has announced that he will not resign and continue to defend his client, despite his belief that the Court is a “complete farce.”
Relevant Documents:: F32 (Letter by Khieu Samphan) and F30/14/1 (Victor Koppe’s response to the Supreme Court Chamber’s request for explanations for his absence from the appeal hearing)
[1] See: ‘The Straw that Broke the Camel’s Back’ – Defense Teams Explain their Withdrawal from the Hearings (August 27 2015) and “This is a farce” – defense teams boycott proceedings (August 26 2015).
Khieu Samphan Breaks His Silence to Support His Defense Counsel
The second day of presentations of key documents was given over to the Defense. Unfortunately, the afternoon session was marred by bickering and games-playing, with all other parties and the court becoming frustrated with Khieu Samphan Defense Counsel Arthur Vercken’s antics.
The day started innocently enough with Victor Koppe, Nuon Chea Defense Counsel, highlighting some thirty documents key to the Nuon Chea defense. His three-part presentation grouped the evidence into sections on Kraing Ta Chan, on living and working conditions in Tram Kak and on the treatment of targeted groups. His submission did not go smoothly with the Prosecution frequently objecting that Mr. Koppe was making closing arguments or that he was presenting documents that were inappropriate for this stage of the trial.
re: Kraing Ta Chan:
Mr. Koppe prefaced his pitch with remarking that the 138 “allegedly contemporaneous documents” concerning the security center on the case file formed the “Prosecution’s core evidence.” But, that there were problems with this as only three documents have “a located original.” This raises such issues as the impossibility of verifying witnesses’ claims as, for example, Ta Chim’s assertion that all executions had to be annotated in red ink on the execution orders. The counsel stated that documents may have been forged in order to create a false picture of what went on during DK. It is the Defense’s declared intention to file an official request for an investigation into a selection of suspicious documents soon.
Mr. Koppe’s first document was an April 2, 2009, interview with Youk Chhang, Director of DC-Cam. His choice emphasizes ‘chain of custody’ problems with evidence.
To wit, counsel states that it is unclear how, when or where, the original documents from Kraing Ta Chan were lost. Sao Phim, current Secretary of State of Cambodia, allegedly received documents from the District Front and gave them to Ben Kiernan. Ben Kiernan has said they are in S-21, but there are accusations that he did not return the documents. Mr. Koppe says it is uncertain from where the District Front received the documents. Supposedly they came from villages and communes but they did not take the originals from Kraing Ta Chan.
Mr. Lysak interrupted to object to his colleague “characterizing the evidence and not presenting it,” and to accuse him of “misrepresenting evidence.
After the brief interlude, Mr. Koppe made his third point that, Hun Sen was the source of documents given a “D” in the DC-Cam numbering system while “other sources are from Takeo province.”
Counsel then moved on to five sections of documents he put forward would offer an “alternative view” to the Prosecution’s “universally brutal picture of the regime.” Firstly, he presented records showing multiple attempts were made to re-educate people (including Lon Nol soldiers) at the commune level before matters were escalated (“if they were escalated”) including:
– a Kraing Ta Chan interrogator’s notebook containing confessions of soldiers (among others) and evidencing several incidences of people being released after re-education. These included those of two Lon Nol soldiers from Angk Tasome commune who underwent many attempts at re-education after committing frequent thefts, and Khum Vet (spelling?), a Lon Nol corporal and “a major thief,” on whom re-education was tried on multiple occasions;
– a report from An (Chief of Kraing Ta Chan) to Angk Tasome commune citing the case of Khim Vann Ny (spelling?), a ‘new person’ from Srae Ronoarng commune, who often stole food but continued his thefts after several attempts at re-education;
– a compilation showing how “at least five(sic) people” received multiple rounds of re-education in order to correct bad behavior:
– Kiem Viet described as “a great stealer,” but re-educated over a period of threeyears. When that failed, he was ‘rep educated’ by “hot” methods;
– a doctor from Phnom Penh who had committed several thefts and been re-educated several
times, but “still abused Party guidelines;”
– two others from Angk Tasome. One was a ‘new person’ of Vietnamese heritage re-educated
multiple times after stealing, but who “repeated his activities” nevertheless. The second was
a youth with a Lon Nol military background who had “stolen and incited (others) to fight
the revolution.” Although “re-educated very often, everyday he continues to steal;”
– a July 27, 1978, report from Tram Kak District to District 109, regarding Suan Pi, who was “good at stealing things belonging to the cooperative,” but had been re-educated;
– a report to An of March (year unknown), of two Lon Nol military arrested as they had stolen repeatedly and “Base has re-educated them to utmost of capabilities;”
– a document regarding:
– Khieu Sovann who had stolen frequently and been re-educated “time after time,”
– Khun Suan who Angkar had re-educated repeatedly after he slaughtered cows and
chickens to eat;
– a military man accused of rape and eating offences and “re-educated often;”
– Chea Sophal from the Kus Youth, “the thief of thieves,” who had been “re-educated over
and over but it has not worked;”
– Mik Chea (spelling?), who had stolen manioc and other foods and undergone “frequent re-
education but kept on stealing.”
Next, Mr. Koppe listed his key documents demonstrating the caution exhibited by Kraing Ta Chan authorities in obtaining instructions on how to deal with people:
– a compilation of Kraing Ta Chan District reports:
– an October 13, 1077, request from Khom to the Party regarding “Hon,” for direction
on this “major thief,”
– a request from Angk Tasome commune on two persons for “whatever Angkar decides;”
– a request from Mean at Nhaeng Nhorng commune for the Party’s decision;
– another request from Mean for the Party’s decision on four people who wanted “to
smash the revolution;”
– a compilation of documents, two of which are relevant to the issue of advice:
– an April, 1977, request from Tan at Popel commune for Angkar “to pass judgment on
what to do;”
– a note from Ta Penh to Kit requesting and “an opinion and instructions” on six soldiers;
– an April, 1977, request from District 105 to Angkar requesting “an opinion on how to solve” a problem with a person;
re: use of “hot” methods of interrogation:
Mr. Koppe summarized that “hot” methods were not always used and, “sometimes, appeared to be used rarely,” as he would adduce employing:
– an interrogator’s notebook titled “Fifth Confession of Despicable Traitors Pol Pot and Ieng Sary,” showing that “hot” methods were only used during two interrogations out of all those done on 105 prisoners (including some Lon Nol soldiers) at Kraing Ta Chan;
– another notebook on 107 prisoners showing that only four were subjected to “intense interrogation.”
Counsel commented that both notebooks “suggested that ‘hot’ methods were not standard practice.” He went on to outline that the first notebook also contained the confessions of Meas Sokar, his mother, Boeun, and sister, Surat, all of whom are still alive. The lawyer avouched from this that it “is possible many others in the notebook also survived,” and questioned “how often, if any, executions occurred,” at Kraing Ta Chan.
This was too much for Mr. Lysak who objected to Mr. Koppe’s conclusions which he argued “crossed into realm of closing argument.” The Co-Prosecutor contended that the defence had “no basis for saying that every incidence of torture was documented and no basis for saying other prisoners were released.”
Judge Fenz responded that “it is a fine line in this kind of hearing between presenting a document and commenting on it,” but asked counsel “to concentrate on presenting documents rather than evaluating documents.”
re: different definitions of “smash:”
The defence counsel advanced that “smash” had variable meanings, “not always equated with execution,” as demonstrated by:
– an undated report from Trapeang South cooperative on two men’s confessions which mention “a five-year plan to ensure “’smashing” of coop’s opposition to communal eating’;”
– a report identifying a network of four persons “with plans to smash our revolution;”
– a Kraing Ta Chan notebook on Pun Nuon (spelling?) accused of plotting “to smash and destroy coop.”
re: Kraing Ta Chan:
Mr. Koppeproposed two documents from S-21 relevant to other security centers including Kraing Ta Chan:
– a DC-Cam paper, “a long list of children and cadres that DC-Cam says were released,” not just the seven people that are commonly referred to as having survived S-21. The document indicates who is still alive, who died after 1979 and those whose status is uncertain.
Mr. Lysak disagreed. And, as he could not find the document Mr. Koppe was citing, he wanted to see his evidence. He added that “prisoners weren’t released but were sent to Prey Sar.” (Ed. Note: Prey Sar is the largest prison in Cambodia).
Judge Lavergne questioned the relevance of the document to Tram Kak and Kraing Ta Chan as S-21 is not part of the current trial segment.
Mr. Koppe explained that by showing that “a substantial number of prisoners were released from S-21, (he) could make a comparison that’s relevant to Kraing Ta Chan.”
Judge Lavergne cut off counsel’s presentation of his second document, a September 30, 2008, article on S-21. The jurist was having “a hard time following (Mr. Koppe’s) reasoning,” as there has been no examination on S-21 yet. Mr. Koppe replied that, as 177 prisoners had been released from S-21,“in context, prisoners were released from other security centers.” Mr. Lysak felt it was “premature to get into this at this point.”
re: documents of limited probative value as possible forgeries:
– a Kraing Ta Chan notebook, the basis for the claim relied on by the judges in the ‘closing order’ of 15,000 executions at Kraing Ta Chan. The infamous scribbled note is on a separate page and not in the same handwriting as the rest of the notebook. The note itself is in two different handwritings and “clearly out of context” with the confessions. Mr. Koppe expressed that another notation: “May the Party be informed of this,” shows “where it was created.” He was “convinced it’s a post-1979, forgery to inflate the death toll at Kraing Ta Chan.”
Mr. Lysak said he was convinced that “this is clearly argument,” and pointed out that the document was not the same as that with the post-1979 title, “Fifth Confessions of the Despicable Traitors Pol Pot and Ieng Sary.” Mr. Koppe defended that he was simply trying to make a connection between the annotated document and post-1979 documents and went on to…
– a document appearing to be a compilation of different prisoner lists from Kraing Ta Chan, and referring to Say Sen. Counsel bases his opinion that it is a forged document on the fact it reports the biographies of the Meas Sokar family incorrectly. He opines that it “probably was created as an attempt to obstruct the narrative of Kraing Ta Chan,” and that “there are other documents attributed to witnesses who have denied that they created them.”
Marie Guiraud, Civil Party Lead Co-Lawyer admitted her objection was “belated,” but said “it is clear our learned friend is pleading.” President Nil Nonn reminded her that counsel have “discretion” in their presentation of documents, that there is time set aside on Thursday to make objections, and directed her to “be patient, take notes and be on (her) feet at the right time for objections.”
After the break, Mr. Koppe continued with his presentation of Kraing Ta Chan documents:
– a March 7 (year unknown) “DR era forgery,” a letter purportedly signed by San to ‘Brother An’ concerning persons who were trying to escape, but which Ta San rejected under oath as having written;
– an undated and unaddressed request by Ta San to have a prisoner interrogated. Ta San testified that this was not in his handwriting, either;
– a letter by “Nouv,” of Srea Ranoarng, concerning a unit deserter. Nouv has told the court that the letter was not in his handwriting and that there was no one else at the commune with the same name. Nouv “had speculated that a clerk wrote it;”
– an alleged execution list of Lon Nol soldiers in the Tram Kak District, “dated one day after the Vietnamese invasion.” It is of such a poor quality that the original translators felt it could not be translated. The present copy has significant discrepancies in translation, for instance, varying between “kamtech,” “éliminé” and a cross notation on a direction.
re: living and working conditions in Tram Kak:
– meeting minutes for the Ministry of Health and Social Affairs concerning DK policies on health. Several reports discussed refer to the production and distribution of medicines, resolution of diet ration problems, and the manufacturing of clothing;
– Revolutionary Flags of February and March, 1976, reporting on lack of modern medicines, and on the necessity to dig new canals and build new rice storage. Mr. Koppe explained that these editions show that access to hospitals was a CPK priority and that there was no policy discriminating against ‘new people.’
re: guidelines concerning unacceptable behavior of cadres:
– August 24, 1975, Standing Committee minutes recording that the members “would prefer to talk about the overwhelming number of ‘base people’ and ‘new people’ who are good;”
– Revolution Flag, September-October, 1976, on “the CPK leadership stressing” that: “internal contradictions must be sorted out…they are our flesh and blood…one way is by education;”
– Revolution Flag, July, 1978, on being “vigilant in taking responsibility.” This issue also deals with, “in order to build Party branches, eradicating ‘leftish’ anti-masses ideas and ‘rightist’ ideas such as inducting carelessly, not based on Party statutes;”
– the confession of Chu Chet, former Secretary of the West Zone.
At this, the ever-vigilant Judge Lavergne jumped in to ask what the objective was of using this document now instead of in the S-21 section. Mr. Koppe affirmed that it related to people in Sector 13 and District 105. The judge also wanted to know if Mr. Koope intended to read from the confession. The counsel was frank. He would be “doing the same thing as the Prosecution yesterday in reading excerpts from Kraing Ta Chan. In essence, no difference in what the Prosecution did in reading from confessions.
Mr. Lysak was incensed. With his voice shaking, he said: “There is a world of difference.” He had read from an interrogation notebook which “is different from a confession signed by a prisoner.” The Co-Prosecutor maintained that the defense counsel wanted to read statements from confessions making assertions obtained under torture, and that this was “barred by the Convention against Torture.”
Mr. Koppe came back fighting: “The Torture Convention protects against torture. Whether elements of confessions can be used is to be debated by the Supreme Court Chamber.” He claimed “not to see why the Prosecutor can use parts of confessions for his purposes but (he) couldn’t for his purposes.”
The President advised that “the contents of records obtained under torture would not be read,” and that the Chamber had only allowed the Prosecutor to read annotations.
re: the Khmer Krom:
– excerpts from a September, 1978, domestic service broadcast on the visit of a Japanese Friendship delegation to Takeo and their interview with the Khmer Krom living in Kirivong, in refuge from Vietnamese persecution;
– document from Angk Tasome commune to the District Office requesting advice on how to treat mixed Cambodian-Khmer Krom families when all members wanted to be transferred to Vietnam.
re: Buddhists:
– an excerpt from a video (which was played in court), depicting a visit by top Vietnamese leaders to DK in 1975, and showing the dignitaries, along with Nuon Chea, Pol Pot and other members of the Standing Committee, “admiring Buddhist statues,” at the Silver Pagoda;
– Ian Harris’ book, Buddhism Under Pol Pot, in which the author proposes other causes for action against Buddhism such as the US bombing of pagodas and the use of monks as American spies. Harris found no policy for systematic liquidation of monks during DK although some monks were executed as spies;
– an excerpt from the Australian-made documentary, Cambodia: The Bloodiest Domino, graphically portraying the bodies of Lon Nol enemies whose livers had been cut out. The film’s dialogue states: “eating an enemy’s liver is an ancient practice of war in Cambodia… (from which) they get the spirit, the strength of the enemy, of the dead.” Mr. Koppe requested to have the court play the tape on the basis that “it shows that former Lon Nol soldiers weren’t helpless victims; that we need to come to trial, not with what we think we know, but with an open mind.”
Judge Fenz allowed the viewing but with the proviso that the video “not purport that whatever a person had done justifies his killing.”
It was a memorable end to Mr. Koppe’s presentation.
Arthur Vercken continued the presentations after lunch. He foreshadowed that he would deal with four issues: the 12 moral commandments of the Khmer Rouge created before 1975; questions relative to cooperatives; documents on establishing the death toll; and problems linked to local cadres.
Mr. Vercken advocated that the DK “was far from anarchy in how people were dealt with, that they sought to respect the people,” as expressed in the 12 revolutionary principles recited daily, and which counsel then read to the court. The lawyer went on to explicate the Khmer Rouge objectives for the cooperatives. He quoted from a Revolutionary Flag, of 1975, regarding health policies, and that the resolution of people’s needs was key for support of the Party and the revolution. After the lawyer remarked that the “political sense could not be separated from the economic sense,” Ms. Guiraud interrupted with a point of information. She had been told by the Tribunal’s Senior Legal Officers that she was not to present documents on the policies of the coops at this time so had had to reorganized her presentation of yesterday to adhere to this advice.
Judge Lavergne spelled out that “the Chamber would like the Khieu Samphan defense to focus on issues directly related to Kraing Ta Chan; national issues will be presented later.” With that, the argument was on. Mr. Vercken “challeng(ed) this,” in no uncertain terms saying he was just “defending (his) client who was not at Kraing Ta Chan.” The counsel threatened that, if he was forbidden to speak about Khmer Rouge policies, he “might as well just sit down.” Judge Lavergne explained that the Chamber was “not challenging his right to defend Khieu Samphan but only drawing attention to today not necessarily being the best time to present the documents. That would be better later.” Mr. Vercken retorted: “We will stop right now.”
Kong Sam Onn declined the opportunity to make a presentation, but observed that Kraing Ta Chan and Tram Kak coops are related to others throughout the country and “the principles apply throughout the country.”
And then a surprise. Khieu Samphan elected to speak: “Although (he has) been accused of being part of a joint criminal conspiracy, (he) did not know of any particular instances as to what happened at Kraing Ta Chan and Tram Kak.” He appealed to the court “to allow a presentation of policy.”
Mr. Lysak voiced his own challenge to the defense. He wanted to know, “to what general policies on coops was the defense referring and would Khieu Samphan subject himself to questions on these policies?” He pointed out that the defense “constantly objected” to the scope of the trial yet now wanted to discuss coops nationwide.
Judge Fenz sought to clarify if it was “understood that the issue here is not if allowed to present documents, but when?” There will be an opportunity to discuss these documents later.
Mr. Vercken was not having it. He complained that the defence was “continuously told that the second trial might not reach its conclusion,” and had been “pressured into sub-cases because the accused might not survive.” He felt that the prosecution was “stepping outside the trial” more than he was (by covering Angk Roka and the Khmer Krom), and that “this is the main issue.”
He wanted the documents in now because his client might not survive until later.
Judge Lavergne said “the Chamber has to ensure equality in preparation of parties on the key documents,” and that they had circulated an email on this issue. Therefore, if the defense “breached” this line, the Chamber would have to put an end to their presentation. Mr. Vercken responded that if, in the Chamber’s opinion, his representation was untimely, he could not make a presentation. The judge accused him of “distorting the Chamber’s words.” Mr. Vercken defended that he “had not consider that the message debarred him from presenting the documents relating to Khieu Samphan.” Judge Fenz interposed that he was the only one who did not understand it, then. She maintained that “it’s a matter of trial organization,” and asked if his team had “documents relevant to Kraing Ta Chan to present today or not?” The President called for the afternoon break to give the defense time to think about it.
When the Bench returned, Mr. Vercken made it clear that his standpoint, and that of his client, was that the documents they wished to present “are directly related to his position on Kraing Ta Chan and Tram Kak.”
Ms. Guiraud wanted it understood that she had vocalized her position (that she had been prevented from presenting certain documents), so it would be on the record for later use.
Judge Fenz again tried, to no avail, to ascertain whether Mr. Vercken’s documents pertained to Kraing Ta Chan and, if so, said they could be done at a later stage. After a disjointed rant by Mr. Vercken, she rephrased, asking if his “evidence is primarily about the role of the accused for which we have a specific section? Yes or No?” That was not productive, either, with Mr. Vercken complaining (inaccurately) that “we have been speaking …one hour and fifteen minutes on a non-objection.”
The President concluded that “the Chamber (did) not have a complete view (of Mr. Vercken’s position), but grant(ed) him the right to continue.” The court said it would decide on a case-to-case basis if the documents were appropriate.
This was not satisfactory to the defense. Mr. Vercken apologized but said he could “not work on a case-by-case basis. Either (the Bench) let (him) speak or it was a bit of a waste of time.” On the President’s urging he said he “would try,” but then raised the issue of making up “the lost hour and a quarter.” Judge Fenz rejected his request, informing him that he would “have to face the consequences of lack of preparation.” Doing his best to keep the hearing on track, the President told the counsel that the Chamber would consider it, but felt that Mr. Vercken probably had enough time before 4:00 P.M. Mr. Vercken disagreed that there would be enough time. And he was offended that he was “being accused of not being prepared.” He declared that it “was better just to stop,” and did so.
President Nil Nonn ‘was not amused.’ He decided that “counsel (was) not performing his duty as a professional counsel (by) refusing to make a key documents presentation.” He then asked Khieu Samphan if he was changing his position on remaining silent. Khieu Samphan said he was exercising his right to silence except when there was a need for him to offer clarification. The accused then rebuked the court for “mention(ing) that his counsel doesn’t have the capability to present documents.” The President cut the lecture short, ordered Khieu Samphan to sit down and quickly adjourned court. It had been a ‘long’ afternoon although it was well before 3:00 p.m.
Medical Experts Conclude Khieu Samphan and Nuon Chea Fit to Stand Trial
The much anticipated hearing to determine the physical and mental fitness of Khieu Samphan (age 83) and Nuon Chea (age 88), the accused in case 002/02, to continue with the trial was held today. The 270 students from Takhmao High School in Kandal province got to continue their education as the two expert doctors treated the courtroom attendees to a very interesting lesson in geriatric medicine and what vital sign readings really mean.
After the greffier reported all parties present with the exception of Nuon Chea who was following the proceedings from a holding cell, the medical experts were ushered into the court.
President Nil Nonn put on record that the hearing was being held pursuant to the Trial Chamber’s Order of December 18, 2014, to hear the results of the physical and psychiatric assessments of the accused completed on January 19, 2015, and January 20, 2015. Further, that the Order had tasked the medical experts with preparing recommendations about how the condition of the accused might affect the trial scheduling.
The President then reviewed the doctors’ qualifications and eligibility to give expert testimony.
He had Dr. HUOT Lina, a psychiatrist and the appointed National Medical Expert, confirm his birth date, that he had no relationship or affiliation with either of the accused or any civil party to the proceedings, and that he had duly sworn an Oath. Dr. Huot testified to his career experience:
He was presently on leave from hospital practice to concentrate on his own private psychiatric clinic. He also teaches at the University of Health Sciences.
Dr. CHAN Kin Ming, geriatrician and the appointed International Medical Expert, similarly confirmed to the court his birth date, that he had no relationship or affiliation with either of the accused or any civil party to the proceedings, and that he had been duly sworn in. Dr. Chan, a Singapore citizen, was educated in Singapore. He also holds a Diploma in Geriatric Medicine from the Glasgow Victoria Infirmary and is a member of the Royal College of Physicians and Surgeons of Scotland. He established that his training in geriatrics qualified him as an expert in cardiology and neurology of the aged. A Senior Consultant in private practice and at the Singapore General Hospital, he has practiced as a geriatrician since 1988.
Nil Nonn formally accepted the doctors as experts and Dr. Chan began his review of the physical medical assessments done on the accused beginning with that on Nuon Chea. He reported that Nuon Chea’s physical condition had not changed much in the year since the last assessment in March, 2014. He has back pain, good eye contact, is cheerful, speaks with a loud and clear voice and can answer questions. All his vital signs (blood pressure, pulse, respiratory rates) are normal and they were normal in the weekly reports of his attending physicians. His reflexes are normal but he does have some limitation of leg movement and stiffness in his hip and knee. Chronic back pain is confirmed by x-ray evidence of multiple osteophytes. His pain is worse when he is changing position. For example, when he moves from lying down to sitting up, but then the pain quickly dissipates. Despite a cataract, his vision is relatively good: he can tell time, read names on a map. There is some tinnitus in one ear that is associated with dizziness or head movement. This is new since the March, 2014, examination. The back pain and dizziness are age-related degeneration and may get worse. Given Nuon Chea’s age, there is also a risk of a rapid decline in physical well-being. Because of this, the doctor recommended that Nuon Chea have one to two sessions of physiotherapy a week to help maintain his muscle mass, limb dexterity and functional status.
Dr. Huot reported that Nuon Chea’s mental condition has remained stable since the March, 2014, assessment. Taking into consideration the seven Strugar criteria, nothing has changed. Dr. Huot finds Nuon Chea is “able and fit to stand trial. His mental condition is good. He can participate in the trial proceedings.”
Similarly, Dr. Huot testified that Khieu Samphan had not developed any mental problems since the last psychiatric examination in 2014. His memory is good. According to the Strugar criteria, his mental condition is stable. The doctor found nothing from the psychiatric point of view that would hinder Khieu Samphan’s participation in the trial, either.
Dr. Chan described the results of Khieu Samphan’s medical examinations of January 19 and 20, 2015. The geriatrician found the accused’s mobility adequate. Khieu Samphan had been lying down reading a book on both occasions he had visited him recently. He could sit up in bed by himself and move unassisted around the room, go to the bathroom and hold books and papers. He had recognized the doctors’ faces but not their names. He spoke loudly and forcefully with no slurring of speech. Khieu Samphan complained of some deterioration in his hearing and, on occasion, would lean forward with his left ear in front but his hearing was still adequate. He could read without a magnifying glass, but there was one on top of his book. His blood pressure and pulse rate were normal even though he had recently been in hospital for bronchitis and hypertension. X-rays showed the subject’s lungs to be clear. He was in good spirits maintaining that he was “only a little tired.” He does have chronic back ache and a history of two strokes.
Dr. Chan recommended that his blood pressure be monitored as hyper pressure and age are risk factors for another stroke. The expert concluded that he found nothing in his examination of Khieu Samphan that would affect his ability to stand trial.
Judge Fenz was appointed by the President to ask questions on behalf of the Trial Chamber. She began by referring to the incident yesterday, January 22, 2015, when the court had to adjourn early because Khieu Samphan was no longer able to follow proceedings. She asked the doctors if they had seen the report the attending physician had made at the time. When they answered negatively, she asked that they be supplied with a copy as she would like them to include it in their overall assessment of the accused. This was done and Judge Fenz said she would return to it later after they had had time to read it.
Dr. Chan testified that they had looked at the medical histories. That of Nuon Chea showed hypertension since 1995 and moderate kidney insufficiency. He had had a stroke in 1998.
Physicians at the Khmer Soviet Friendship Hospital detailed that he had occasional dizziness, slow in walking, and that he was weaker when he walked. The doctor said Nuon Chea, himself, reported that he is physically weaker now than a year ago. Dr. Chan said his concentration is normal and he has no specific memory problems. But, it is expected that with age he will deteriorate so regular assessments are recommended. Wanting to know how often there should be reviews of his mental health, Judge Fenz asked “How often is regular?”
Dr. Huot said the Khmer Soviet Friendship Hospital was doing weekly reports but only of the physical condition of the accused. He recommended an expert review cognitive function once every two to three months, with an assessment annually. The reports done every one to three months will act to back up the annual assessment. Answering affirmatively to the judge’s question, he said that there were specialists at the hospital who had the capacity to do the examinations. He recommended “ideally, a monthly assessment but every three months is a good start.”
Attention was next turned to Khieu Samphan but Defence Counsel for Khieu Samphan interrupted Judge Fenz to voice her concerns about making public her client’s health condition. She asked that instead the findings be summarized. She put the court “on notice that (she) may submit a request to hold hearings in camera because of the privacy issues involved.”
Notwithstanding the objection, Khieu Samphan’s medical history was outlined next. Khieu Samphan has high blood pressure and a problematic thyroid gland. He has had stroke, a respiratory infection, cataract surgery, and three hospitalizations since the last assessment: in March and May, 2014, and just released January 15, 2015. On his last admission to hospital, he was suffering fatigue, fever, high blood pressure and bronchitis. He has no other specific difficulties other than the above. Khieu Samphan is committed to exercising. His own assessment was that his memory was fine although sometimes he could not remember what he did yesterday or last week.
The Judge asked if the doctors could comment on the incidents causing adjournments using their present findings.
Dr. Chan had reviewed the daily records of the January 12th admission to hospital. Khieu Samphan’s blood pressure had been higher than normal (150), his pulse (at 112) was “much higher by any standard,” and his oxygen saturation was insufficient at 93-94. He was given antibiotics by IV and his vital signs normalized. The doctor said that blood pressure was not the cause of this problem, a sub-acute chest infection was. He suspects the infection was present at the start of the trial but with no rise in temperature or breathlessness. It showed up in the vitals.
That the good doctor is also at teacher at heart was most evident in his next explanation, that of the January 21, 2015, incident. Khieu Samphan normal vitals are: blood pressure: 115/70, pulse: 76 and oxygen saturation: 98%. When the doctors interviewed him on January 21, 2015, the readings were blood pressure: 140/70 and pulse: 82. The vital readings in the duty doctor’s notes show blood pressure: 140/70, pulse: 82, oxygen: 95%. Dr. Chan stated that these result are within normal range for Khieu Samphan’s age and could not cause him to be so symptomatic as to cause an adjournment. He added that on January 22, 2015, Khieu Samphan, himself, said his teeth were his “strongest complaint.” The accused had told the doctor that if the morning court session could end by 11:30A.M., he would then have enough time to eat and rest, and be in condition to complete the afternoon session. The doctor felt this was not an unreasonable request given the man’s age and history.
Announcing that he would like to make a general statement on hypertension, Dr. Chan got very interesting. He began by explaining that hypertension actually has no symptoms. There is no correlation between it and dizziness and headaches; that a blood pressure reading of 140/70 does not account for Khieu Samphan’s symptoms. But, his physical fatigue does. Khieu Samphan had just been discharged with a chest infection requiring antibiotics. The doctor outlined that although parameters may show normalization and that the infection has cleared, the toll on the body persists. “The older take a week or two to fully recover.” Dr. Chan said that when he saw Khieu Samphan around 9:15 A.M yesterday, his readings were 140/70 for blood pressure, pulse was 82, and respiration: 18. Later in the day, around 3:00 P.M., when he was feeling unwell, his blood pressure went up to 160/90, pulse to 84 and respiratory rate to 28 (much higher than normal). Dr. Chan said even a blood pressure reading of 160/90 is symptomatic for most people, that 180/110 is the “symptomatic range,” and cautioned that different people have different reactions to blood pressure rises. The respiratory rate of 28 was a better indicator of what caused the incident. The doctor explained that when Khieu Samphan gets “passionate,” he hyperventilates in his excitement. It was what was going on at the time that caused the incident. When excited, the arteries constrict…which causes dizziness. The blood is more alkaline causing tremors and muscle cramps. The doctor opined that “it is likely that the process of physical fatigue and being excited developed the cramps and tremors Khieu Samphan was experiencing.”
Judge Fenz asked Dr. Chan to give the normal ranges of the four vital signs. Firstly, Dr. Chan qualified “normal” saying that “what is high blood pressure depends on the sensitivity of his own body to the individual. Blood pressure may be high but asymptomatic.” In another example, he stated that there might be breathlessness but “breathlessness is subjective and might not mean that oxygen saturation is low.” That noted, the doctor related that the cut off for “normal” blood pressure is 140; 140-160 is stage 1, mild hypertension; 160-180 is moderate and 180 severe. 190 is a maximum. Saturation is hyper at 90-95, moderate at 95-100 and severe above 120. He cautioned that is was most informative to take three readings of “resting” blood pressure taken after the subject has been at rest for fifteen minutes. Dr. Chan said that he would expect Khieu Samphan’s blood pressure to be higher after court “as a normal response to circumstances.”
The court moved on to pragmatic considerations of scheduling. After stating that as none of the conditions will improve, Judge Fenz asked if it would make more sense to shorten the days or to have fewer sitting days in a week? In Dr. Chan’s opinion, it makes more sense to give Khieu Samphan “more rest during the days of trial rather than three days of activity and four days of rest.”
After the morning break, Pich Ang, National Lead Co-Lawyer for Civil Parties, had a pertinent question. He wanted to know “if people with high blood pressure are shocked, unhappy or upset, will the individual with a history of hypertension be affected and, if so, how?” Dr. Chan replied that a further rise in blood pressure could be expected. Depending on the intensity of the shock or unhappiness, it might trigger severe hypertension or crisis (a reading above 180/120). The doctor explained that in such a situation, a person might develop hypertensive encephathopy (swelling of the brain). Symptoms are acute confusion, inability to recognize people and stroke. In short, it is a medical emergency.
Pich Ang wanted to know the blood pressure level that could trigger such an emergency but Dr. Chan was not able to be more definitive. He said it was “very individualized. Some people are resilient and others sensitive ,and anything could trigger high blood pressure.” He explained that not all high readings would lead to hypertensive encephathopy, that it probably had a genetic basis.
Answering counsel’s question about prevention, Dr. Chan replied that “first and foremost, it is important to have usual blood pressure well-controlled.” If the subject’s blood pressure is high when he is in a relaxed state, it is easier for it to rise on provocation. So, developing a hyper emergency must be avoided. Secondly, basic health care precautions are important: a low salt diet, adequate exercise and rest.
Co-Prosecutor Koumjian wanted to know if, in preparing their report, the doctors had had a chance to observe Khieu Samphan and Nuon Chea’s court appearances in 2013 when each addressed the court on their views as to the evidence and the trial. The doctors had not and neither had they heard the accused’s statements made in October and November, 2014, when each explained that he had instructed his counsel to boycott the trial proceedings and why he had done so.
Ms. Guissé objected to Mr. Koumjian’s line of inquiry stating that there was no link between the experts and the accused’s ability to attend proceedings, that “they have never said they were unable to follow the proceedings.” She went on to assert that “even the accused, no one, has said the accused are unfit for trial.” Ms. Guissé also objected to the Co-Prosecutor’s next question asking the doctor to compare the Khieu Samphan and Nuon Chea’s access to medical care to the doctors’ own patients. She called the question “inappropriate.” Mr. Koumjian argued that his question went to the “amount” (sic) of reviews to be done; the President ruled in his favour.
Dr. Huot said he recommended an annual review. The duty doctors were filing weekly medical reports but not mental assessments although they have not noticed any changes mentally, generally. He disagreed with Mr. Koumjian’s thesis that “counsel who regularly interrelate with the accused are best able to judge whether they are able to understand the proceedings.” Dr. Hout was emphatic that “other parties’ opinion is not independent or biased. It may be prejudicial”. He forcefully recommended that an independent body should make the assessments.
He was supported in this by Dr. Chan who explained that an assessment of cognitive status was determined through as many independent, unbiased facts as possible. He pointed out that it was necessary to look at different domains of the brain such as memory and long term memory, personality change, language aphasia, dementia and trial capacity. Dr. Chan felt these were complex issues beyond simple interaction with counsel.
The Co-Prosecutor asked Dr. Chan how frequently he examined his own patients and what such an assessment involved. Dr. Chan began by saying that you have to be practical and look at what the health issues were. He gave as an example, if a patient had diabetes and no medical-legal issues, then he would just look at them on initial contact. If there were medical-legal issues, then he would use different assessment means over time as there is a learned effect in regular examinations.
Dr. Chan confirmed that both the length of day and length of the court sessions can affect the medical issues of the accused. He confirmed Mr. Koumjian’s proposition that both accused could attend hearings four days a week if they had the lunch break extended an extra half an hour for rest. The Co-Prosecutor stated as preamble to his next question that as “the health of the elderly is a dynamic situation that has the possibility of health worsening in a year, a day lost now may not be make up in a year.” Dr. Chan confirmed that if Khieu Samphan and Nuon Chea both got more rest and the longest sitting session reduced, they could both participate four days a week.
Khieu Samphan’s Defence Counsel, Anta Guissé raised concerns that, since the doctors only examined her client on two occasions, they had not adequate information to assess the impact of four hearing days a week on the accused. She felt the experts needed more data taken after several consecutive days of court to make such an assessment. Dr. Chan explained that, based on the weekly medical reports to date, there has not been a significant change in resting vital signs except for incidents when vitals went up. “Unfortunately, there are no medical instruments for measuring the affect of trial on a person,” he said. Khieu Samphan only request was to reduce the morning session, that then he would be “refreshed.” Dr. Chan felt that the physical monitoring he was receiving now was adequate.
After Dr. Chan said normal speaking speed was adequate for Khieu Samphan to understand court proceedings, Kong Sam Onn, Co-Lawyer for Khieu Samphan wanted to know if complexities in translation were difficult for his client to understand. The doctor felt there was no negative impact as the interpreters are well qualified.
Nuon Chea’s Defence Counsel, Son Arun asked if the backache and headache symptoms were related but Dr. Chan said there were not, “from a medical point of view.” Son Arun said he had noticed deterioration from year to year in his client’s physical and mental condition. As an example, he said Nuon Chea’s backache kept him from sitting for more than 20 minutes, which meant he could not sit in the court room and, therefore, could not communicate “with parties” during the hearings. The lawyer also felt that a duty doctor should be observing Nuon Chea.
With that, and after the President’s most courteously thanking the medical experts for their services, the constructive and instructive morning of testimony ended for the mid-day adjournment.
After lunch, Judge Fenz began the proceedings by clarifying with Anta Guissé her thoughts on how the medical reports and emails should be classified given the privacy concerns. Ms. Guissé
agreed that the court’s emails requesting additional information did not need to be “strictly confidential” but that the medical reports did. She also wanted the doctors’ emails on the January incidents to be so marked on the basis that today’s discussions should be sufficient for public purposes.
President Nil Nonn then turned the proceedings over to (Michael) Yiqiang Liu, Civil Party Co-Lawyer, to continue with the examination of his client, Oum Sophany.
Ms. Oum Sophany gave testimony concerning her experiences during the Khmer Rouge regime.
It is not a pretty story. When her sister died in hospital, she learned about it from a villager because the medical staff had not allowed Ms. Oum to stay with her sibling. She “wept quietly alone in the middle of the rice field” when she got the tragic news. Her life generally since leaving Phnom Penh during the evacuation and going to stay with her parents-in-law in Tram Kok district was not a happy one. At first she could live with relatives, but then Angkar had her move to a house with other “new” people so Angkar could control them. It was not so much a house as a framed structure with coconut leaves for walls and no furniture. She had to live with “base people” with whom she could not discuss her experiences out of fear of repercussions from Angkar. She pretended to be deaf: “We only used our eyes to watch the road ahead, our mouths were for talking about only serious things.” When she was sent to Farm 160, she had to eat communally. The rations, a plate of rice and some water lily soup, were inadequate. Angkar ordered the living and eating arrangements. She became tired and sick; she could not sing or laugh loudly. Her activities were sleeping, working and eating.
Co-Prosecutor Seng Leang drew the witness out more. The hospital in which she gave birth was a makeshift facility in a school. She did not know whether it was the responsibility of the commune or the district. She did not know if there was any distinction in medical treatment between the base people and the new people but said there was in meals. The wife of a committee member received wild meat with her meals while the ordinary patients got rations of commune meals. Shortly after she gave birth, hospital policy was changed and only serious patients were allowed visitors. Her husband was no longer allowed to come in and help her.
One day, she was shocked to see several people tied together. They were walked away towards the south, towards the Kraing Ta Chan security center.
Co-Prosecutor Dale Lysak asked her about the disappearance and death of some of her relatives during the troubled times. Ms. Oum said two of her brothers-in-law (a pilot and a doctor) were taken away and killed by the regime.
Nuon Chea Defence Counsel Suon Visal wanted to know more about Ms. Oum Sophany’s work duties. She related that after resting for four or five days after arriving at her parents-in-law’s home, she was instructedby the team chief to dig dirt to make a pond. Later she worked making a dike, carrying fertilizer to the fields, transplanting and harvesting rice. There was no official distinction between base people and new people but those who were weak were allowed lighter work duties. There was no right to choose what you did but, as she only weighed 36-37 kg. and was not strong, she was able to do less arduous work. Leave from work could only be granted by the chief. She tried her best because she “was afraid of these people.” During the Khmer Rouge years everyone belonged to a group or a team and did the assigned work. From February 9, 1976, they ate communally.
Mr. Koppe, Nuon Chea’s Defence Counsel, carefully reviewed Ms. Oum Sophany’s testimony with her looking for discrepancies. He started by asking her if she had sent her book (“When Will We Never Meet Again”) to DC-Cam in the framework of a literary contest. She had and had won third prize for it in 2004. She said the center wanted people’s accounts of that era. She also won a prize in 1989 for “Under the Drops of Falling Rain.”
There ensued a joust between Mr. Koppe and Yiqiang Liu over Mr. Koppe’s request that she lend him a copy of the book as the bookstores were telling him it was out of print and he was interested in the Civil Parties’ stories. The objection to Mr. Koppe’s request was sustained and Mr. Koppe’s subsequent question on a book prize called the South-East Asian Writers’ Award was ruled irrelevant to the facts in the case as the question went beyond the facts of the case.
Mr. Koppe’s next line of questioning revolved around Ms. Oum’s literary statement that “writing is the only way to let out the suffering and the sorrow I kept inside.” He wanted to know “why, if (she) wrote down everything that came into her heart and mind,” she had made no mention in her diary of seeing dead bodies on the road from Phnom Penh during her journey to Tram Kok. She explained that she only made brief notes in her diary but “expanded on (her) recollections” in the first of the aforementioned books. “It was so tragic” she could not write about the dead bodies at the time, but it “stuck in her mind” and she put it in the book.
Mr. Koppe moved on to delve into why, when she decided to leave Phnom Penh, it took Ms. Oum a month to go the 68 kilometers to Tram Kok and the house of her parents-in-law. She explained that she walked as there was no transportation, sometimes on the road, sometimes cutting across rice fields. When a family member was ill, they stopped to rest. Her lawyer objected to the questions concerning the evacuation on the basis that they do not apply to Case 002/02. The President agreed stating that “the facts were far from the facts before us now.” Mr. Koppe shot back that it was an “interesting decision,” demanded a decision of the whole bench and asked if he was not to be able to ask any questions after April, 1975. The President told him that his question was repetitive as well and that such questions are not allowed because they delay the proceedings and “lead to contradictions in responses.” At this last, the irrepressible Mr. Koppe voiced his signature comment, “Very interesting,” implying his distaste for the President’s reasoning.
Mr. Koppe switched topics to clarify matters concerning the marriage of Ms. Oum, an exploration that may have coughed up a contradiction in the testimony. After reviewing Ms. Oum’s memories of her wedding day and determining that she was still married to the same man, a man she married because she loved him, Mr. Koppe asked her to recall an interview she had given to the Phnom Penh Post in May, 2013. Yiqiang Liu was fast to object on the basis that that was specific information when he had not seen the document. Mr. Koppe retorted: “Counsel do your homework.” He followed up by asking Ms. Oum if she had told the reporter that she had a forced marriage.
Civil Party Lead Co-Lawyer Marie Giraud entered the fray objecting to the fact the document Mr. Koppe was relying on had not been given to the other parties as per protocol. Mr. Koppe denied he was “relying on the document,” stating that he was only asking questions “and all the answers have been yes.” On that dramatic cliff hanger possibly affecting witness credibility, the President announced an adjournment to Monday, January 26, 2015.
Graphic Testimony in Court as Khieu Samphan’s Blood Pressure Rises
The third day of evidentiary hearings in ECCC Case 002/02 got underway today with a special audience of 430 people from Samrong district in attendance. They were there in support of the prosecution’s witness who also hails from Takeo province. But the court had preliminary matters to tend to before testimony would begin.
After calling the court to order, President Nil Nonn announced that, due to the illness of Judge You Ottara, Reserve Judge Thou Mony would be sitting in his stead.
The greffier reported all parties were present along with witness 2TCW936 and witness 2TCCP296.
Briefly, the President ran through pending scheduling matters. He reviewed that Khieu Samphan was released from hospital on January 15, 2015, that the expert medical assessments on both accused were due today, and that a subsequent hearing on the fitness of the accused to stand trial was set for January 23, 1015. He reminded counsel that there was a deadline of January 22, 2015, at 3:00 P.M. for them to notify the court as to whether they would require a hearing on competency.
Nil Nonn then reiterated two recent rulings. Firstly, that the Trial Chamber had rejected Khieu Samphan’s latest request for reconsideration of the appointment of standby counsel on the basis that there were no new grounds to reconsider the previously-rejected application, and, secondly, that the court had also rejected defence counsel objections to the new sitting arrangements for the standby counsel.
Because of the importance of the issue and especially for the benefit of Khieu Samphan, the President then clarified the role of standby counsel. He reviewed how the court had qualified defence counsels’ behaviour as misconduct, the recommendation under Rule 38(1) of a sanction of Khieu Samphan’s counsel by non-payment of certain of their fees, the referral under Rule 38(2) of Defence Counsels’ conduct to their respective professional bodies and the appointment of standby counsel to take over the defence if and when the court decides their services are necessary. Until that time, standby counsel would not be replacing counsel or actively participating in the proceedings. Standby counsels’ “most important” task now is to familiarize themselves with the case file and pleadings, and to attend the hearings so they can get up to speed and be of service when required.
Nil Nonn was very clear that the appointment of the standby counsel was “aimed to ensure the proper administration of justice in the conduct of the trial.” Succinctly, there are to be no more delays.
On the issue of the Civil Party Lead Co-Lawyers request to have a map of the cooperatives admitted into evidence, the court ruled that the map would not be admitted. Khieu Samphan had objected to the request, arguing that the document was “not conclusive of the truth,” as per Rule 87(4), and that it did not meet the criteria established in Rule 87(3).
The Civil Party Co-Lawyers were more successful with their other current request. The Trial Chamber affirmed that they would be allowed to examine the experts in the competency hearing on Friday consistent with previous practice and Rule 91(2), as long as their questions are relevant to the question of fitness of the accused to stand trial.
Mr. Koppe interrupted the proceedings with an urgent request that his client be granted permission to go down to the holding cell as he was feeling dizzy. Mr. Nil Nonn ruled Nuon Chea could follow the proceedings by remote means from downstairs, asking his counsel to submit to the court a waiver of his client’s presence with his client’s thumbprint affixed as soon as possible.
No sooner had the court resumed than a glitch in the audio system occurred. The President called an adjournment for half an hour to get the system back on line.
Meas Sokha, witness 2TCW936, was recalled to the stand after the break.
Co-Prosecutor Dale Lysak quickly reviewed the high spots of the witness’s prior testimony: of how his entire family had been arrested following a meeting in which their thumbprints had been collected, a meeting that had been called to remove a cooperative official; that they had been detained on arrival at Kraing Ta Chan security center in one of the three buildings that housed prisoners.
Mr. Lysak led the witness through the arrival of the family around 4:00 P.M, to a cell 12 meters by 5 meters, holding more than 20 prisoners either shackled or handcuffed; of how the prisoners had to place the rings of the shackles around their ankles themselves. Mr. Meas related that because he was a young child, he was not so encumbered but that his mother and sister had to wear the shackles at night. They were only released from them during their work hours, he said.
The Co-Prosecutor asked about the facilities for babies and young children. Mr. Meas said they stayed with the mothers so they could be breast fed. If the mothers didn’t have enough milk, the children died. The mothers, themselves, were allowed to work outside in the daytime but were jailed at night.
The witness related how no one had enough food or clean water. Their rations were two meals a day of a ladle of gruel containing three small pieces of potato, water plants, ten to fifteen grains of rice and some salt. Everyone was always hungry. The source of their dirty drinking water was near where fertilizer was stored.
The building they lived in was very dirty and filled with small insects, like lice, that would bite. He related how if they did not respond at night when their names were called, the guard would beat them.
The bathroom was a container to store feces and another small container to collect urine which was then poured into the storage container.
There was no medical treatment. Many who got sick died without treatment. And almost every day, the sick and the starved and the tortured died, “one or two a night before they could be taken to be killed.”
Mr. Meas said he was at Kraing Ta Chan from 1976 to August, 1978. He was then temporarily transferred to another cooperative until taken back again. His time at the security center was “two months short of three years.”
It was a long three years. His father was the first to die, three days before the start of his own detention. He had been “smashed” for inciting people to depose a village chief. His mother worked making gruel for the prisoners; his sister had a different work assignment. During the day, his job was to tend two cows and four water buffalo. He went to the fields but had to return to the compound by 5:00 P.M. each night. At night, he was sent out to collect frogs. His duties allowed him movement around the prison which enabled him to see what happened to the other prisoners. In 1977, he remembered about 100 villagers being brought in. There was no room in the buildings to hold them so they were taken to the pits. Three to four at a time, children, the old, people would be killed and put in pits, five meters in circumference and three meters deep. The pits were located south of the pond in the prison compound. Prisoners had been warned that if they went there, they would be killed. Music would be played through loud speakers and loud instruments would be played to cover the sound of the killing. The loudspeakers were located at the detention buildings not near the killing sites.
The Co-Prosecutor switched his questioning to the matter of the interrogations asking where they were held. Mr. Meas described a place about 50 meters away from the detention building and the tools that were in use in the torture space: staffs, chains, axes, pliers. He said that while some prisoners confessed, others did not. He was never interrogated as only adults were interrogated not children.
Mr. Meas described how he saw the interrogations in progress when he went about his duties, walking around picking vegetables for the kitchen, for instance. The kitchen was only about five meters away. He was warned not to speak about what he saw but he saw the torture and the prisoners bleeding from being beaten with stems of bamboo, fingernails pulled out with pliers…
Mr. Lysak referred to the witness’s prior testimony in his OICJ statement and asked about how Mr. Meas had heard the interrogators accuse the victims of being CIA, of demanding what rank they had held and the covering of a prisoner’s face with a plastic bag. Because he was close, Mr. Meas said. He then elaborated that he had seen a prisoner suffocated with plastic only once and that the incident occurred over about five minutes before the man confessed. But, they continued to beat him. He felt that if a prisoner answered immediately, he did not get mistreated.
The Co-Prosecutor brought up some of his mother’s OICJ testimony. Mr. Meas knew she had been questioned about his father, where he had been living, “did he love liberal regimes or conservative regimes…” He said his father had been accused of being an “agent” when he did not “enter the revolution.”
Mr. Koppe then objected to Mr. Lysak’s questions concerning a photocopy of a notebook because the photocopy was being represented as an original. He explained that DC-Cam reports that there are no original documents left from Kraing Ta Chan and that he had no objection to the document per se, just that it was portrayed as being an original. After Judge Fenz clarified his objection and asked if the court could move on, Mr. Koppe then challenged the document on the basis of authenticity. Judge Fenz, after pointing out that the probative value can be taken into account later, noted Mr. Koppe’s objection to the phrasing of the question for the record and that the record should reflect that there are no original documents remaining. Based on the argument that the “photocopies are the originals” and that DC-Cam had testified that the photocopies came from Kraing Ta Chan, Nil Nonn ruled in favour of the witness being allowed to see the photocopies of witness lists and that the lists could be put on the screen.
The Co-Prosecutor then spent considerable time having Meas Sokha identify various family members (his mother, father, sisters, brother-in-law, aunt and uncle) and villagers from the lists and information in the photocopied notebooks. He was able to confirm approximately when some of them had been arrested, that his aunt and uncle and their six children had died at the camp, and what happened to some of the others. Mr. Koppe objected, asserting that Mr. Lysak was leading the witness, “feeding him information from the documents…laundering information in the documents” The court overruled the objection.
Mr. Meas was further questioned about how he knew the prisoners were killed. He answered that during his duties around the various areas of the compound, he saw murders taking place. After 2 P.M., while he was tending the cattle, he saw prisoners taken away to the pits. Two or three at a time were walked right by in front of him. He stated that the prisoners cooperated because they had been told that they would be returning to the cooperative after they had met with senior cadres. Mr. Meas had seen victims held tightly by two men and then seen their throats being cut with sharpened 60 cm. long knives “two fingers thick.” He saw children being “thrown against trees and then dropped into pits.” On questioning, he estimated that the number killed varied each day: “50-70-80-100. The minimum was 20 prisoners a day. Prisoners were brought in every night for detention.”
In August of 1978, he had been sent to a cooperative in another district. In January, 1979, when the Vietnamese came, he escaped up a mountain. The guards ran away rather than climb the mountain and then he was free from detention. His mother, sister, brother and three other people were freed at the same time.
Mr. Koppe raised an objection to the witness being asked if he had ever seen any Khmer Rouge leaders visit the Kraing Ta Chan. His argument, that the term “Khmer Rouge” was too general a term to have any meaning at the time the testimony addressed, was rejected by the court. Mr. Meas then answered that he had been in the prison office when the Chairman of the Committee for the region visited.
Judge Fenz asked Mr. Meas to describe how “nearby” he had been, and to describe the “open” interrogation area. He explained the area had been “quite close to where I was walking,” and drew a picture of a building without walls, a large hall with only a roof, minimal furniture and old clothes taken from prisoners stored in back. Mr. Meas’ attention was obviously lagging, and Judge Fenz was unsuccessful in trying to get him to clarify how often he had seen torture, beatings or any kind of violence against prisoners.
Judge Lavergne wanted to have a breakdown of the number of staff and whether any women suffered sexual violence. Mr. Meas recalled ten guards. Duch was chief and he took notes at the interrogations but another man was in charge of the killings. Six guards collected the prisoners and took them to be killed. Because he was young, Mr. Meas said he was not aware of rapes at the time. He knew people guilty of moral offences had their heads shaved and “banged coconut shells.” Judge Lavergne enquired as to whether the prisoners were separated into groups, workers away from other prisoners, for example but Mr. Meas said there was no distinction between prisoners. They were put in the buildings until the buildings were full. But the staff lived differently. The guards got a different and better meal (with four dishes and rice) than the prisoners. Some of the cadres made white wine. The courtroom was startled to attention when Mr. Meas testified that he had seen many human gall bladders drying in the sun. After the cadres flavoured the wine by putting one or two of the organs in a large container of it, Mr. Meas said he did not know what they did with the rest of the gall bladders. They drank the wine to make themselves brave. One hundred and thirty was the most people that he had seen executed in one day. There was no space to house them so they were not interrogated, just killed. There were no killings in the morning. The slaughter started around 2:00 P.M. and lasted to 5:00 P.M., sometimes to 8:00P.M.
The Trial Chamber adjourned until 1:30 P.M. for lunch.
Pich Ang, Civil Party Lead Co-Lawyer, picked up the questioning in the afternoon, by asking Mr. Meas to describe his living conditions and his work duties.
Mr. Meas related that he slept in a house although some prisoners slept at the dams or other work sites. He had only one set of clothing a year which he lived in 24 hours a day. He studied under a tree about the nature of the work they were to do to produce 3 tonnes per hectare. Literacy and numbers were not taught. The teachers as well as the students were all illiterate. They were taught to love one another, to eat and live in a community, to love Angkar without limitation, that Angkar was his parents. He understood Angkar to mean “upper leaders, upper echelon.” Because of his work, he could not visit home. He was assigned to tend cows, he had no choice about it. He received nothing for his work. Everything was communal. The only personal possessions he had were his bowl and spoon. As Buddhism was banned, they could not even hold a ceremony for the dead.
Pich Ang asked him he had returned to Kraing Ta Chan to collect the skeletons of his dead relative? Mr. Meas had gone back but been unsuccessful in identifying any familial remains.
He would like to see a memorial to the dead built at Kraing Ta Chan.
Suon Visal, Nuon Chea’s defence counsel, had Mr. Meas review his lifestyle at Kraing Ta Chan.
Mr. Meas said children 15-17 were put in a children’s unit; under 15, in a candidates unit where he was for a time with six others. They lived in a house because of their age and ate communal meals brought to them by cooperative members. The rations were insufficient but they could not forage for food individually because everything belonged to the community. By day, they tended the cattle, supervised by two “military”. He could collect water lily and tamarind for the kitchen. He could wander with the animals but he had been told that if he ran away, his mother would be killed. At night he was sent out hunting for birds, frogs and animals.
Mr. Suon Visal jumped on Mr. Meas’ discrepancy between his prior testimony that eight family members and five villagers had been arrested at the same time and his testimony today that the numbers were ten and four, respectively.
After Mr. Suon had asked if Mr. Meas had the same rights as other guards, the President told the counsel “to ask proper questions.” Mr. Meas replied that other prisoners were not allowed to talk or move, or they would be beaten as punishment.
The Defence Counsel also enquired as to the layout of the security center and what the buildings were like. Mr. Meas described two buildings as being attached, some 15 meters away from the kitchen in the middle of the compound. There was barbed wire below the roofs, barbed wire fences (two fences about 200 meters away from each other), and wooden floors; the execution area was covered in coconut leaves.
Mr. Meas was questioned about his ability to judge distances based on his prior testimony that he had climbed up trees to see the execution site about five meters away. He estimated the distance from himself to the President to be five to seven meters. The Co-Prosecutor objected to Mr. Suon testifying that the distance was really closer to ten meters but he was overruled. Mr. Meas then said that one of the executioners had pointed a finger at him to chase him away. Mr. Meas was scared. He had been warned not to go there and he did not intend to see the executions which he observed for about ten minutes. He said he knew the number of people being killed because he would overhear discussions about the numbers of people brought in. The guards trusted him because he never talked about their work. He knew he would be in trouble if he did.
After a short break, it was time for Mr. Koppe, international defence counsel for Nuon Chea, to take the floor. Mr. Koppe discovered Mr. Meas has been on the building committee for religious halls and a study hall at the Kraing Ta Chan since 2006. Before that, he had been a soldier from 1980 to 1997, stationed in Takeo province, but that he did not know of any criminal investigation of Democratic Kampuchea at that time. He reiterated that Democratic Kampuchea had “committed torture against the people.”
Mr. Koppe questioned the witness at some length about the incident in which a prisoner was suffocated. Mr. Meas thought it was after June, 1976, probably September, 1976, and in the dry season as he could remember it was hot and he had been in the security center three months. Mr. Meas scoffed at the counsel’s question as to whether he could remember the faces of the dead. Mr Meas said he remembered the faces of those who survived. He did not know how many prisoners were in the buildings, he did not count them and, after their interrogations, they were returned to the buildings. Mr. Meas was hazy on many of the exact details of the day of the suffocation. But he was adamant that when, about 9:00 A.M., as he was taking sour fruit to the kitchen, he saw a man being severely beaten, tortured, and suffocated with plastic. An hour later, he saw the man being carried back into the detention building. He also remembered that the man was quite tall and “a little fat.”He died the next day of his injuries. After this, Mr. Meas never looked at the interrogations as he found them too scary.
Mr. Lysak objected to Mr. Koppe’s line of questioning using terms such as “house” for an open air space that was a roof and little else, and accusing him of trying to mislead the witness by creating false testimony.
Mr. Meas continued with his description of where the interrogators had been and said that the note taker was using a pen and not a typewriter. He could remember the gist of the questions but answered that the prisoner was asked his position, his rank, was he a General or a Colonel but, by then, he could not say much because of the suffocation.
President Nil Nonn interrupted to caution Mr. Meas that he did not have to answer any question which was a demand for a response to an assumption by counsel, including Mr. Koppe’s suggestions about how long the victim was interrogated before the suffocation incident.
Obviously distressed from the long ordeal of testifying, Mr. Meas objected to Mr. Koppe asking him any more of these sorts of questions. It had been a long session for Mr. Meas and Mr. Koppe had trouble getting direct answers to the rest of his examination. Mr. Meas did say the prisoner was kicked and that he could not react to it because he was cuffed. Initially, the man “had no position.” He was just a driver, but the interrogators did not believe him.
Kong Sam Onn interrupted the hearing to request an adjournment on the basis that Khieu Samphan was fatigued and unable to follow the proceedings. Judge Fenz asked if his client could follow from a holding cell downstairs to which Mr. Kong agreed.
Mr. Koppe then continued with further questions about the suffocation victim. Mr. Meas said the interrogators showed the man a report and accused him of being CIA. The witness explained that this was standard procedure: “people lived and died on the basis of a report from their village.” He confirmed he saw a plastic bag on only one occasion, saying that he “did not try and watch any more,” after that. On his duties to collect the sewage, he later saw the victim , shackled, lying between other prisoners in rows.
At that, and on the announcement that Khieu Samphan was suffering from high blood pressure and requesting an adjournment, the President of the Trial Chamber adjourned until 9:00 A.M., on January 22, 2015.
Khieu Samphan Anxious Over ‘Standby’ Counsel – The Cambodia Daily
George Wright | The Cambodia Daily
Khieu Samphan’s Prolonged Hospital Stay Necessitates Extending Adjournment to January 21, 2015
The ECCC announced today that it had received confirmation from Khmer Soviet Friendship Hospital medical personnel that Khieu Samphan would not be ready for discharge in time for resuming the hearings in Case 002/02 which had been set for Thursday, January 15, 2015.
As Khieu Samphan has informed the court that he wishes to be present for all testimony, the Trial Chamber recognized the inevitable. President Nil Nonn ordered cancellation of the above noted hearing and directed that the evidentiary sittings will continue on Wednesday, January 21, 2015.
The Press Release referred to the court order of December 18, 2014, charging Dr. Chan Kin Ming and Dr. Huot Lina with the responsibility of assessing the health of both Khieu Samphan and Nuon Chea to determine whether the men (age 83 and 88 respectively) are medically fit to stand trial. The doctors are to provide the Trial Chamber with an Experts’ Report based on their examinations of the accused to be conducted on January 19 and January 20, 2015.
It is perhaps relevant in assessing the possibility of a further delay caused by health issues to observe that, although the trial is now set to continue on January 21, 2015, Dr. Chan and Dr. Huot are not to be questioned by Defence Counsel and Co-Prosecutors on their conclusions in their Experts’ Report until Friday, January 23, 2015. (Note: Civil Party Lead Co-Lawyers have requested that the court affirm that they also have the right to reserve participation in the examination on the report).
Khieu Samphan Remains in Hospital; ECCC Hearings on Hold for Five Days
At four minutes and sixteen seconds, it was a record-setting short session at day 2 of the evidentiary hearings in Case 002/01.
After reporting that Justice Martin Karopkin was filling in for Justice Lavergne who was ill, Trial Chamber President Nil Nonn made what was an expected announcement. Stating that, as he had received information from Khieu Samphan’s “treating doctors that Khieu Samphan needs to be treated in hospital for another five days from today’s date,” examination of the Witness 2TCPW936 would be delayed due to Khieu Samphan absence from the court room. He then ruled that the court would resume hearing the testimony of Witness 2TCPW936 and Witness 2TCCP296 on Thursday, January 15, 2015.
The President also said that if Khieu Samphan cannot attend the trial as of January 15, all parties would be so informed through electronic means.
And with that, the brief hearing was adjourned until January 15, 2015.