Document Hearing Slowed by Confusion and Conflict over Purpose and Procedure

For a second day, the Trial Chamber in the Extraordinary Chambers in the Courts of Cambodia (ECCC) heard lengthy, and occasionally tedious, presentations from the parties on the relevance and admissibility of certain documents in Case 002/1,[2] which the Chamber said was intended “to ensure a greater measure of public accessibility to the documentary aspect of trial, namely … to hear a summary of what these documents are about.”

During the morning session, the Office of the Co-Prosecutors (OCP) presented a long series of documents. These detailed, in particular, the challenges faced within the Revolutionary Army of Kampuchea (RAK) concerning internal enemies. According to the OCP, they also illustrated the manner in which decisions and information were communicated between upper and lower levels within the Khmer Rouge authority structure.

However, this would prove to be the only document presentation heard during the day. While a scheduled presentation by the Ieng Sary Defense Team was derailed by protracted arguments over the documents included in that team’s list, the other parties to the hearing indicated they were not ready to proceed. In the Nuon Chea and Khieu Samphan defense teams’ case, this owed to their clients’ recent hospitalization, while the civil party lawyers indicated that it had some confusion over the schedule for the document hearing.

Indeed, confusion seemed to be the order of the day. In addition to the issues raised by the civil parties, both the Ieng Sary and Khieu Samphan defense teams signaled their confusion over certain issues, including procedures to be followed in connection with the document hearings and the nature of certain procedural rules with respect to the adducing of evidence in the ECCC. This appeared to lead to several delays during the proceedings to enable the Trial Chamber judges to deliberate, as well as to the devotion of the entire last session of the day to clarification of the precise way in which the parties and Chamber should proceed for the remainder of the document hearing.

Continued Absence of All Three Accused Persons

The start of hearings was once again slightly delayed this morning. Upon opening, Trial Chamber President Nil Nonn advised that today’s hearings would be a continuation of a document hearing begun on Monday, January 21, 2013.

Trial Chamber Greffier Se Kolvuthy presented the usual report concerning attendance during the day’s proceedings. As reported by Ms. Se, all three accused persons were still absent from the courtroom today, with accused person Ieng Sary observing the proceedings from his holding cell, while his two co-accused Nuon Chea and Khieu Samphan remained hospitalized in the Khmer Soviet Friendship Hospital. However, she noted that both had submitted waivers of their right to participate in the document hearing.[3]

Also in the audience this morning were approximately 100 university students majoring in accounting at the Economics and Finance Institute in Phnom Penh. They were joined by a small number of villagers, many of whom appeared to have been born during or before the Democratic Kampuchea (DK) period.

Military Structure, Decisions, and Purges in the Second Half of 1976

With the opening remarks completed, International Assistant Co-Prosecutor Dale Lysak took the floor to continue the OCP’s presentation of key documents that they alleged to be illustrative of the structure of the Revolutionary Army of Kampuchea (RAK) and related decisions and purges, a presentation Mr. Lysak had commenced late in the day on Monday, January 21, 2013.

The first category of documents Mr. Lysak presented was those from June to December 1976. The prosecutor explained that this was a period for which there was a significant number of surviving reports by divisions concerning the communication and implementation of Party policies and lines by the military. He noted that the documents would be presented chronologically.

Mr. Lysak opened with minutes of a meeting of all division committees on June 1, 1976. This meeting concerned agricultural production and recorded the communication of the Party’s line on this matter to Center military divisions. In particular, it noted the aim to achieve three tons per hectare production of rice to achieve self-sufficiency of Angkar’s agricultural production.[4] In a later meeting held on August 18, 1976,[5] senior Khmer Rouge leader and Standing Committee member Son Sen expanded on this, discussing the amount of land to be cultivated and the associated projected monetary yield.

Next was a document recording the decision of a Communist Party of Kampuchea (CPK) conference between all division committees and held from July 7 to 14, 1976. This was the second such conference, Mr. Lysak noted, the first reportedly taking place in April 1976. The decision taken at this second conference highlighted the need to build the “Party’s radical proletariat class dictatorship apparatus” and to carry out a “storming attack” to achieve the three tons per hectare production goal. There was also a duty to eliminate enemies, pay attention to the infiltration of enemies within the RAK, and grasp people’s biographies.[6]

In addition, the decision highlighted the need to disseminate widely both the statutes of the CPK and the decisions made at the division committee conference to Party members and combatants;[7] people would also be required to grasp “old Party members” biographies at the base, Mr. Lysak explained. Finally, he concluded, the decision required monthly study of Party documents including the Revolutionary Flag and Revolutionary Youth magazines.[8]

The decision from the July division committee meeting was subsequently referred to in minutes of a meeting of secretaries and deputy secretaries of the brigades and regime held some weeks later on August 2, 1976. In this meeting, the divisions and independent regiments reported to Mr. Sen on their completion of education or study sessions on the Party’s statutes and the decisions from the division conference in July. In response, the prosecutor read, Mr. Sen instructed:

There must be a plan, once a month, to study Statute documents, brigade conference decisions, and various instructions of the General Staff. We must pay attention on how to organize classes for cadres and male and female combatants to study the Revolutionary Flag journal, Revolutionary Youth journal, and revolutionary newspaper continuously.[9]

On August 30, 1976, a meeting of division and regiment secretaries and deputy secretaries was held, at which Mr. Sen reported on “enemy situations in the grassroots and in troop units or organizations.” He noted, in particular, that 100 persons had engaged in unrest on the border of Kandal Steung district, and another 60 persons had done so in Sector 25. These people had raised banners stating, among other things, “Long Live Buddhism.” They had reportedly been preparing for major unrest on August 20, 1976. Mr. Sen indicated that there was a nexus between this unrest and the RAK, and some had suggested that their leader was Chan Chakrey, the Division 170 Secretary.[10]

In response, the prosecutor continued, Mr. Sen instructed that further education should take place on the “spirit of vigilance” and continued tracking of no-good elements.[11] Mr. Sen also talked about the enemy’s desire to target certain people including those “who were class conscious,” “who had not internalized the revolutionary movement and can’t keep up,” and the “new people.”[12]Purges of no-good elements therefore had to continue absolutely, Mr, Sen concluded.

Son Sen (third from left) pictured with Khieu Samphan (fourth from left), Ieng Sary (right), and visiting Chinese military officer in Khmer Rouge-controlled zone near the Thai border in the 1980s.
(Source: Documentation Center of Cambodia)

At this point, Mr. Lysak presented an example of a division report – a September 1, 1976 report from Division 502 Secretary Sou Met. In this report, Mr. Met reported details of two members who stole chickens, rice, and weapons and later confessed the identities of others in their networks.[13]

At a meeting between Mr. Sen and Division 164 on September 9, 1976, Mr. Lysak said, the division provided a detailed report on the enemy situation in its area, including the capture of a small boat with five Thai people and one Cambodian aboard at Koh Rong Samloem. Mr. Sen requested for the boat’s inhabitants to be sent to the Center for interrogation. In addition, he noted that there “were bad elements in the military,” giving the example of the discovery of a former Lon Nol soldier within the RAK.[14]

Also on September 9, 1976, Mr. Sen held a meeting with Division 703 Chairman Pin, S-21 Chairman Kaing Guek Eav alias Duch and S-71 Chairman Pong.The meeting concerned the distribution of leaflets critical of the regime found at Wat Botum near Phnom Penh two days earlier. Duch noted that comrades from Division 170, Chan Chakrey’s division, had previously been arrested for distributing similar leaflets. It was decided that Pong and Khami had to “go all out in doing constant political and ideological education” and “firmly grasp biographies.” Pin was to “re-examine his unit of organization,” and all had to increase surveillance of enemy situations, ministries liaised with, and the “[Division] 170s should be rounded up.”[15]

On September 16, 1976, Mr. Sen again met with Duch, this time together with Division 170 Secretary Sok[16] and Division 290 Secretary Thal. At this meeting, the participants discussed the recent arrest of Sector 24 Secretary Chhouk, who had been implicated by Chan Chakrey. The minutes also referred to a plan Angkar had sent out instructing the arrest of all Chan Chakrey connections. Thus, the minutes instructed the arrest of cadres from Division 290 and 170, and the wife and niece of Chakrey.[17]

The same day again, Mr. Sen also met with all division secretaries. At this meeting, Mr. Sen drew attention to the existence of “no-good elements” within the RAK, including deserters, former Lon Nol soldiers, and “new people.” To combat this issue, he said there was a need to grasp biographies firmly, particularly with respect to people who began “beating the [Khmer Rouge] drum after the day on which the whole country was liberated.”[18]

A few days later, on September 19, 1976, the division secretaries met. The minutes of this meeting show how they reported on issues concerning their organization, reporting in turn on the enemy, food production, health, food supply, and Party situations. The reports revealed serious food supply limitations and health issues within the RAK. Notably:

• 40 percent of RAK soldiers were reportedly sick with swelling and diarrhea.
• In Division 310, 2,000 were reportedly sick, with 400 seriously ill and unable to work.
• In Division 450, there were 300 sick at the division hospital, and a total of 1,000 (including all those taken ill from the regiments).
• All food supplies at Division 310 would be exhausted by the end of September.
• All food supplies at Division 450 had already been exhausted, with all food supplies for September being “drawn from General Staff logistics.”[19]

At this point, Mr. Lysak highlighted two telegrams sent out by Mr. Sen under his revolutionary alias Khieu providing instructions from the Center. The first had been sent on September 23, 1976, to Division 801 Secretary Run and Division 120 Secretary Chin, and both documents focused on a group of enemies known as the “Sevens” or “Group Seven,” who were allegedly trying to encourage opposition of the CPK line and revolution “from within.” It was necessary, therefore, to conduct surveillance with respect to those who might be sympathetic to them.[20]

Next, the prosecutor showed minutes of a September 30, 1976, meeting between the divisions and the logistics office of the Center, known as Office 62. At this meeting, the divisions reported on problematic elements. For example, Division 120 noted that a person had resisted repeated attempts at re-education and sought advice.[21]

On October 1, 1976, Mr. Lysak continued, Ong Ren (who has recently testified before the  Trial Chamber) sent a report to Mr. Sen. In it, the witness noted that “the Party’s discipline has been implemented in accordance with the Party’s decision,” including through the removal of those Party members “who had political affiliations.” The document also included a criticism of Division 170 Secretary Sok for failing to grasp the biographies of “the contemptible Chakrey’s associates.”[22]

Five days later, Dim — the Deputy Secretary of Division 164 — sent a telegram to Brother Muth, the division secretary, with copies to Brothers Nuon and Khieu. The telegram discussed the need to search our bandits and to discover the enemies “burrowing from within.”[23]

Foiled Plot to Assassinate Pol Pot and Nuon Chea

The prosecutor presented minutes of an October 9, 1976, meeting of the secretaries and deputy secretaries of the divisions and independent regiments. In these minutes, it was noted that the commemoration of the Party’s anniversary had been delayed because “the Organization has been busy.”[24]

To elaborate on the reasons behind this delay, Mr. Lysak noted that in the S-21 confession file of Division 24 Secretary Chhouk, who had been arrested in August 1976, there was a document dated September 19, 1976, discussing plans to smash Brother Number One (Pol Pot) and Brother Number Two (allegedly Mr. Chea) while they would be traveling at an event to commemorate the Party’s anniversary.[25] In a report by Duch in this regard, Duch stated that Brother Pho acted as a “mastermind and orchestrator” to get rid of Brothers Number One and Two and other leaders with an intellectual background.[26]

Mr. Lysak also noted a September 27, 1976, statement issued by Mr. Samphan advising that Pol Pot was “taking temporary leave from his task in order to take care of his health.” As such, Mr. Chea would be temporarily taking his place effective from that day.[27]

The prosecutor returned to the previously mentioned October 9 division meeting minutes, noting that Mr. Sen had reported to the meeting about actions taken with respect to a number of Party traitors who had been arrested. Mr. Sen advised as follows:

First, we arrested the traitorous links in Division 170. You must take note with regard to this problem to maintain secrecy and not to disseminate to the lower levels. …

Previously, there were incidents of guns being fired near the fine arts school and leaflets being thrown near the palace. Then, in early April 1976, they threw grenades and threw leaflets again. We felt these were enemy activities. Those implicated in the answers of those we were able to arrest went right up to Chakrey.[28]

The prosecutor once again departed briefly from the October 9 meeting minutes to note that in the S-21 confession file for an individual named Yim Sambath, Duch had reported on August 6, 1976, via Mr. Sambath’s confession, the history of arrests and confessions that eventually led to the arrest of Division 170 Secretary Chakrey. In the same file, Duch forwarded letters to his superiors found in Chakrey’s room following his arrest.[29]

Mr. Lysak revisited the October 9, 1976, meeting minutes once more, reading an extract of Mr. Sen’s account of the arrest of Mr. Chakrey:

Upon arrest, he responded clearly that he was a Siri link, and that his boss was Chhouk, the secretary of Sector 24. We arrested Chhouk, and he responded that he had contact with a Vietnamese to make an attack on our Party’s leading apparatus. They would attack from the inside while the Yuon would attack from the outside. The Yuon’s name was Bai Ma.[30] … This network had created a new party back in 1962 and was linked with Im Oral[31]and Pou Sat.[32] We could then see clearly what had been going on with the unrest in Koh Kong and the problems of contradiction between Sectors 24 and 33. We have basically smashed the leadership links, but their henchmen still exist.[33]

In the same meeting, Mr. Sen stated that if people had not been evacuated, “we would not have the peace and quiet we enjoy today.” There would not have been a victory had they not created cooperatives and been absolute about Socialist revolution, he added.[34]

After this announcement, Division 170 Secretary Sok reported that his division had purged 70 “no goods.”[35] Division 703 Secretary Pin stated:

As regards the problem of traitors and the Party’s measures, I agree completely. The reason for the treason is these guys’ contradiction about status and rank. Even though we have arrested their bosses, they are continuing their activities … After repeated studies and purges, it is possible to guarantee the defense of the Party.[36]

Division 450 Secretary Soeun, for his part, noted that “no goods” had been rounded up in his division. Division 310 Secretary Oeun also noted that in the past, there had been reeducation about enemies burrowing from within, but he could not have fathomed treason existing at such a high level. He noted that some cadres’ biographies had not yet been fully grasped, and there was, in total, 36 “no goods” in his division.[37]

Meanwhile, Division 502 Secretary Sou Met said that he was “happy and had more faith in the Party” after the traitors had been found. However, it was “imperative to take further measures” and “dare absolutely to conduct purges” to prevent this happening repeatedly. Division 164 Secretary Meas Muth said that the elimination of traitors within the Party had been a “great victory” and “strengthened the standpoint of revolutionary vigilance.” However, “no-good elements or enemies are still infiltrated in the rank and file,” he warned.[38]

Upon hearing these reports, Mr. Sen announced, “Those present at the meeting are in unity with the Party in considering these arrests as a great victory.” He advised that “trivial activities” attacking the revolution, such as stealing, “all issue forth from such traitorous links.”[39] To combat this, Mr. Sen said it was “imperative to purge no-good elements absolutely.” The purge would need to focus on three categories of individuals:

• Category 1: “Dangerous elements” – These had to be absolutely purged.
• Category 2: “Ordinary liberals” – These people had to be reeducated.
• Category 3: People who were led by the enemies – These people were to be refashioned to no longer believe the enemy.[40]

Further Documents from Late 1976 Focusing on Internal Purges within the RAK

Moving on to minutes of a meeting between division secretaries and deputies on October 18, 1976, Mr. Lysak noted how Mr. Sen again made a presentation on treasonous elements in the RAK and base. He attributed their enmity to the CIA and Vietnam and said it was necessary for all military staff to have discussions with the zones and take measures. Divisions had to prepare one battalion of forces to be “constantly on standby,” with the objective of protecting radio stations and Angkar’s location. Select “clean people” were to be armed and deployed at important target areas in the city.[41]

Next, the prosecutor highlighted an October 19, 1976, report originating from Division 164 Secretary Muth to Mr. Sen regarding some people who had disappeared from the division hospital. The following day, there was a handwritten note marked on the report from Mr. Sen to “Bong[42]Nuon” requesting to make a search for the missing people.[43]

In addition, a telegram sent from Mr. Sen to Division 164 Secretary Muth dated November 4, 1976, stated, in the upper left hand corner, “Instructions for 164.” In this telegram, Mr. Sen approved some measures in response to requests from Mr. Muth, and gave instructions concerning other matters.[44]

At this point, Mr. Lysak made very brief mention of two attendance lists on the case file:

• The attendance list for the first general staff study session that began on November 20, 1976;[45]and
• The attendance list for second general staff study session that began on November 23, 1976.[46]

He advised that the OCP merely wished to note that these documents provided a useful tool for identifying both the divisions and independent regiments and their members.

Mr. Lysak also mentioned, in passing, a November 25, 1976, report from Division 801 Secretary Run to Mr. Sen. This report suggested that implicated people should be arrested and requested that Mr. Sen provide his comments in this regard.[47]

On December 15, 1976, the division secretaries met once again. At this meeting, Mr. Sen discussed the results of efforts to screen the biographies of military cadres. He noted, in particular, that “there were still some comrades who are hiding their history,” and there was a need to be most careful in relation to those whose immediate family members were purged. He also instructed on the need to screen a prevention unit, and for operations only to take place on the specific instructions of the General Staff. Finally, he noted that pistols were not to be carried, and the use of telephones was to be avoided for secrecy reasons.[48]

Mr. Lysak highlighted a report from Division 801 Secretary Run to Mr. Sen written on December 4, 1976, and a report prepared by the General Staff entitled Overall Situation in the Country and Along the Border via Telegrams from 1-31 December, 1976.[49] These documents, when compared, showed how Mr. Run’s report was incorporated into the overall report, Mr. Lysak said.

Selected Documents from 1977 focusing on Responses to Enemy Threats

Moving on to 1977, the prosecutor presented minutes of a meeting of division secretaries held on March 1, 1977. At this meeting, there was a discussion of ongoing issues concerning enemy elements within the RAK. On this subject, Division 502 Secretary Muth noted that people had been sent to S-21. Division 920 Secretary Chin, who would himself be arrested two weeks later, reported that “those who came to us from the Vietnamese and the children of soldiers, sub-district chiefs, and police” were purged and sent to undertake labor. Comrade Yan from Division 450 advised that perhaps 600 elements needed to be removed from his division.[50]

Also during the March 1 meeting, Mr. Sen advised the divisions that after eliminating the Division 170s, they subsequently discovered and eliminated another treasonous network. “Mere education” would not be enough to combat this threat, he concluded on the subject of treason. Rather, “absolute purges” were necessary. At this time, defending the country was to take ultimate precedence.[51] “Antagonistic contradictions” had to be grasped to the utmost degree, because “remnants still remain, and new traitors will continue to be born.” Internal contradictions required reeducation, whereas the antagonistic variety required absolute responses.[52]

Mr. Lysak referred briefly to two reports from March 1977: a March 24, 1977, report discussing the capture of soldiers at the Vietnamese border,[53] and a March 29, 1977, report describing the enemy situation in the entire northeast area.[54] The annotation of this second report referred to S-21 and noted that enemies included those going against the revolutionary line, and those newly and previously implicated by the enemy.

As to how division secretaries were informed of persons in their divisions who had been implicated, Mr. Lysak said this could be illustrated by annotations on S-21 confessions of:

• Division 502 cadre Sour Tun alias Mao: This confession contained a note from Mr. Sen to Division 801 Secretary Run, instructing Run to read the report and pick out the names of Division 801. It asked him to keep this confidential.[55]
• Division 164 Deputy Secretary Hong Doeun alias Dim: This confession contained an annotation that said “To brother, to be informed … though some are the right people, some others, whom I have known, are not. I will invite Comrade Muth to check this together.”[56]
• Division 164 cadre Koeun Dim: This confession contained a handwritten note dated September 10, 1977 and signed by Son Sen under his revolutionary alias Khieu. This note stated, in part, that “22, as well as Division 164 of Comrade Muth, are mentioned” and that Comrade Muth should be contacted with regard to the taking of measures. It also noted that a copy was sent to “Brother Nuon” on September 10, 1977.[57]

There were also S-21 confessions on the case file with basic annotations indicating that a copy was sent to division secretaries, Mr. Lysak continued. For example, these annotations could be seen on the confessions of:

• Chea Soun, regiment secretary in Sector 43: This confession contained an annotation at the top of this confession indicating, “Copy for Comrade Pin.”[58]
• Division 502 cadre Srey Sarun: This confession contained an annotation stating, “One copy sent to Comrade Met.”[59]

At this point, the Chamber adjourned for its customary 20-minute mid-morning break. After the hearing resumed, Mr. Lysak presented a March 30, 1977, report from Division 801 Secretary Run to Mr. Sen. In this document, Run requested approval to “remove a number of regimental and battalion cadres, because these cadres’ implementation of the line is mostly contrary to it. The masses have no faith in them. They do not improve through education, and the direction of their evolution is backwards.”[60] A March 1977 report entitled Statistics of Armed Forces recorded a total of 61,189 persons in the RAK at the time, Mr. Lysak said.[61]

Moving on, Mr. Lysak presented a telegram from Division 920 Secretary Son to Mr. Sen dated April 5, 1977, which reported that after education of division cadres, “there was more and more awareness and unmasking of traitors.” Mr. Sen annotated to this report: “Arrest them.”[62]

Next, Mr. Lysak referred to a June 4, 1977, report from Division 189 Secretary Sok. The report began by identifying 11 internal people of concern, who, for example, traveled and spoke freely, and then noted that there was a request to send these people to Kampong Chhnang. Their biographies would be sent with them, the report said, and Mr. Muth requested the brother’s opinion in this regard.[63]

In addition, an August 12, 1977, telegram report from Division 164 Secretary Muth discussed the capture of a Thai boat two kilometers from Koh Kong. The report indicated that four Thai and one Khmer person had been arrested and were being questioned. On the left-hand column of this document, a handwritten annotation from Mr. Sen instructed that they “find elements.”[64]

Finally, and concluding the OCP’s presentation of documents on the RAK, Mr. Lysak presented a telegram from Division 164 Muth, this time not to Mr. Sen, but directly to Committee 870, and copied to, among others, Brother Nuon, Brother Van, and Brother Khieu. In this report, Secretary Muth noted the receipt of instructions about the defense of the maritime spearhead against the Vietnamese and vowed to “sweep away uncovered enemies” who had still been uncovered.[65]

Comments from Civil Party Co-Lawyers and Defense Teams

At this point, the president gave the floor to International Lead Co-Lawyer for the civil parties Elisabeth Simonneau Fort to present its documents or give comments on those documents already presented by the OCP. However, Ms. Simonneau Fort confessed that the civil party lawyers were not in a position to do so, as they had been under the impression that the OCP would spend the entire day presenting documents and present also in relation to the further topics of forced movements and the Tuol Po Chrey execution site.

This prompted the president to chastise that this had been the moment to discuss military structure. It was unclear whether this response implied that the civil party lawyers would not have an opportunity to present its documents on this topic at all. However, without any effort to make or seek clarification, the floor was handed over to the defense teams, beginning with National Co-Counsel for Nuon Chea Son Arun.

Mr. Arun said that his team objected to one document in particular, which was a “key leading to several other documents.” This document, which had been discussed as early as December 15, 2011, was the document numbered E3/5, alleged by the OCP to be the August 1975 issue of theRevolutionary Flag. On December 15, 2011, Mr. Arun said, Mr. Chea had expressed before the Trial Chamber his “stern objection” to this document on the ground that it was not an original, since it did not appear to be in the format of the Revolutionary Flag. Mr. Chea had requested to review the original of this document; otherwise “anybody could manufacture this kind of document.”

Mr. Arun noted that Mr. Chea had also stated on December 15, 2011, that in order to ascertain the truth, and in the interests of the people, he insisted on examination of the original document in order to be sure that this Court was “not just a show trial.” Without the original document, he could not accept this kind of document. Mr. Chea also requested to hear concrete arguments expressing that the document was authenticated. In short, Mr. Arun said, Mr. Chea and his team strongly objected to the use of documents without their originals in the hearings before this Chamber and were happy to make this request in writing.

With respect to the books written about the DK period, and media reports and articles, Mr. Arun continued, the Nuon Chea Defense Team requested that their authors be summoned to testify before the Chamber. If this did not happen, the allegations put by the OCP would be “extremely vague” and lead to a violation of Mr. Chea’s rights. Accordingly, Mr. Arun requested that these kinds of documents be dismissed.

Next, International Co-Counsel for Ieng Sary Michael Karnavas took the floor. He began by noting that during the course of the present document hearing, the OCP had been presenting its closing arguments in relation to Case 002/1, namely their “spin” on how the documents related to the indictment, the facts, and the co-accused. “Little or no value” should be given to such remarks, Mr. Karnavas argued, and the Chamber should in addition be mindful how much time it would give the OCP to argue its case at the end of the trial, since it had been doing so already.

The Ieng Sary Defense Team’s position was that documents should be admitted “with great hesitation” due to the need to establish authenticity and relevance, Mr. Karnavas said. To the extent that documents were being submitted without testimonial evidence, his team objected.

International Co-Counsel for Khieu Samphan Anta Guissé took the floor next. She advised that she was “somewhat perturbed” as her understanding of the purpose of this hearing, as outlined in the associated memoranda,[66] was that it was an opportunity to present key documents to the public and give the parties a chance to plead and respond. Under these conditions, her team was not ready to plead on issues of admissibility.

Endorsing Mr. Karnavas’s arguments, Ms. Guissé echoed these comments in stating that this should not be an opportunity for the OCP to plead. If the OCP were now doing so, the defense teams would now have to revisit all documents to formulate its pleadings. She also noted that as her client was now hospitalized, her team was not in a position to plead on the documents.

In response, Mr. Lysak said that he thought the Trial Chamber memorandum was clear. His team’s presentation was not a closing argument but a presentation of documentary evidence. Turning to the August 1975 Revolutionary Flag issue, the prosecutor said that the Chamber had already ruled on the Nuon Chea Defense Team’s arguments and dismissed them. However, for clarity, he said, he would reiterate three counter-arguments OCP had already made in this respect:

1. Color copies of the Revolutionary Flag have since been presented, showing that these were colored booklets that had been copied into black and white.
2. Assertions that this trial was a show trial were extremely disingenuous. A witness, Kim Vun, who had worked at the office that printed the Revolutionary Flag, had confirmed their authenticity.[67]
3. In relation to the August 1975 Revolutionary Flag in particular, the Chamber had heard recent testimony from a soldier who confirmed attending the meeting discussed in this issue of theRevolutionary Flag.

At this point, the Trial Chamber judges gathered in brief conference. A few minutes later, the president advised that during the afternoon, the Chamber would hear from the Ieng Sary Defense Team concerning 56 documents with respect to which it had objections. Mr. Karnavas confirmed, when asked, that his team was ready to make this presentation this afternoon.

President Nonn then turned to the civil party co-lawyers, asking whether they would be able to present their documents on military structure, an issue that had been left hanging earlier. Ms. Simonneau Fort stated, with apologies, that their “rather hasty” preparation for this hearing meant they were not ready for the moment, although it would be in a position to present a few documents this afternoon and circulate its list to the parties during the lunch break. Alternatively, they could present all their documents together after the OCP had presented its documents on forced transfer and Tuol Po Chrey as well.

The Trial Chamber judges deliberated on this issue for some moments, before leaving the issue unresolved, with the president merely reporting after their deliberation that that the Chamber would take an early lunch adjournment at 11:40 a.m. instead of 12 p.m., and reconvene at the usual time of 1:30 p.m.

Clashes between the Prosecution and the Ieng Sary Defense Team

During the afternoon proceedings, nearly 150 high school students from Chea Sim Takeo High School in Takeo province took their place in the public gallery. They witnessed the afternoon’s proceedings commence approximately 10 minutes late, with the president giving the floor to Mr. Karnavas to make his team’s document presentation. However, before he was able to do so, the president noted that International Senior Assistant Co-Prosecutor Vincent de Wilde was on his feet, and granted him the floor.

Mr. de Wilde explained that 24 of the documents Mr. Karnavas wished to discuss had already been the subject of discussion in hearings during 2012. He requested approximately 10 minutes’ time to list those documents and thus limit Mr. Karnavas’s discussion to the 30 documents which had not been previously discussed.

Given a right of reply, Mr. Karnavas said that it was not his intention to go through each document but to discuss documents thematically. In addition, his discussion would not include some documents included in the OCP’s annexes and some witness statements which he understood would be the subject of future hearings. As to the issue of the similarity of some of the documents, Mr. Karnavas explained that he would be happy to submit his objections in writing if the OCP was worried his team “would be wasting valuable court time.”

The defense counsel proceeded to spotlight certain documents with which his team was particularly concerned. These included:

• A letter from Stephen Heder, a U.S. International Development document;
• Statements of previous witness Suong Sikoeun; and
• A communication between National Co-Investigating Judge You Bunleng and former International Co-Investigating Judge Marcel Lemonde.

Noting Mr. de Wilde appeared “to be in a particularly combative mood this afternoon,” Mr. Karnavas ceded the floor back to Mr. de Wilde. The latter requested that Mr. Karnavas respond to Mr. de Wilde’s specific motion rather than launch into his objections. President Nonn agreed, and advised Mr. de Wilde, somewhat sternly, to list the allegedly-offending documents rather than just make general statements in their regard. Mr. de Wilde explained that this was what he wanted to do. Apparently irritated, he proceeded to fire off details of the documents at a rapid pace:

1. A document concerning the witness, Ms. Voeun. Judge Jean-Marc Lavergne had first presented this document during the hearing on August 8, 2012.[68] This document was also, allegedly, a different version of another document[69] presented last year.[70]
2. The statement of a witness with the Chamber-designated pseudonym TCW 231.[71]
3. A document already appearing on the OCP’s Annex 2A, which it presented at the Monday, January 21, 2013, hearing. This document was number seven on that list.[72]
4. Another document appearing on the OCP’s Annex 2A presented on January 21. This document was number eight on that list.[73]
5. Another document appearing on the OCP’s Annex 2A presented on January 21. This document was number nine on that list.[74]
6. Another document appearing on the OCP’s Annex 2A presented on January 21. This document was number 11 on that list.[75]
7. The statement of a witness with the Chamber-designated pseudonym TCW 389.[76] Mr. de Wilde argued that this statement should be the subject of a separate hearing.
8. The statement of a witness with the Chamber-designated pseudonym TCW 796.[77] Again, Mr. de Wilde argued that this statement should be the subject of a separate hearing.
9. The document numbered 19 on the Ieng Sary Defense Team’s list.[78]
10. A document[79] that already appeared on OCP’s July 2011 document list, at Annex 2,[80] and was the subject of a hearing in January 2012.
11. A document that was identical to the previous document.[81]
12. Another document that already appeared on OCP’s July 2011 document list, at Annex 15.[82]
13. Another document that already appeared on OCP’s July 2011 document list, at Annex 12.[83]This document, like all documents on the OCP’s July 2011 document list Annexures 12 and 13, should be the subject of a separate document hearing, Mr. de Wilde said.
14. Another document appearing on the OCP’s Annex 2A presented on January 21.[84]
15. Another document appearing on the OCP’s Annex 2A presented on January 21.[85]
16. Another document appearing on the OCP’s Annex 2A presented on January 21.[86]
17. Another document appearing on the OCP’s Annex 2A presented on January 21.[87]
18. Another document appearing on the OCP’s Annex 2A presented on January 21.[88]
19. Another document appearing on the OCP’s Annex 2A presented on January 21.[89]
20. Another document appearing on the OCP’s Annex 2A presented on January 21.[90]
21. Another witness statement that already appeared on OCP’s July 2011 document list, at Annex 12,[91] and that should be the subject of a separate hearing.
22. Another document appearing in OCP’s July 2011 document list, at Annex 3,[92] and had already been subject to a hearing in mid-January 2012.[93]
23. Another document appearing in OCP’s July 2011 document list, at Annex 3, and had already been subject to a hearing in mid-January 2012.[94]
24. The statement of a witness with the Chamber-designated pseudonym TCW 365.[95] This document appeared at Annex 12 of the OCP’s July 2011 document list and should be the subject of a separate document hearing, Mr. de Wilde said.

Mr. de Wilde announced that he had come to the end of this “somewhat fastidious” exercise.

The president asked whether the civil party co-lawyers had any observations. Seeing there was no reaction, the president reiterated his request. This prompted Ms. Simonneau Fort to note that Mr. Karnavas seemed to assume he was entitled to submit written objections at a later stage. She suggested that clarification on this possibility would be useful as it could affect the nature of the oral presentation Mr. Karnavas would make.

Mr. Karnavas replied that the OCP had its list since Monday, January 21, 2013, and had not made any objections during the hearing on that day. Addressing Mr. de Wilde, Mr. Karnavas said that he would have been happy to modify his presentation based on any concerns from the OCP, in order to save time, had those been communicated in advance. As for the comments from Ms. Simonneau Fort, Mr. Karnavas noted that he had not seen Ms. Simonneau Fort make any objection during the January 21 hearing concerning his team’s foreshadowed written objections. He stated that he believed written objections were useful and noted it was a practice utilized by other international tribunals.

As for statements of witnesses due to testify, Mr. Karnavas noted that these documents should not be admitted until the witnesses come to testify. He further noted his team had made its submissions on January 21 regarding other types of documents, before taking his seat while casting a smile in the direction of the bench and apologizing “for wasting everyone’s time.”

This prompted the Trial Chamber judges to convene. After a brief conference, the president advised, while flicking through his binder, that the Chamber had heard the parties’ arguments, and would, for the second time during the day’s hearing, take an early mid-afternoon adjournment (at 2:20 p.m. instead of 2:40 p.m.) and reconvene at the usual time of 3 p.m.

Chamber’s Position on Arguments Concerning Admissibility

Maintaining the atmosphere of uncertainty over timing that had prevailed throughout the day, the Chamber ultimately reconvened 15 minutes later than their previously indicated time. When it did so, the president advised that the floor would be given to Judge Silvia Cartwright to clearly state the bench’s position. She duly advised as follows:

The Chamber notes that there are two matters on which it needs to give guidance to the parties. These two topics are discussion of the admissibility of documents; and … the presentation of key documents.

The Chamber’s guidance refers first and solely to admissibility [first]. The Chamber notes that the OCP and the Lead Co-Lawyers have made oral submissions on objections to the admissibility of documents. It notes also that Ieng Sary has responded orally but that counsel for him has referred to the making of submissions in writing. The Chamber would like Mr. Karnavas to confirm, now if practicable, if the written submissions are a reference to the annex to the e-mail circulated today.

Mr. Karnavas was given the floor to advise in this regard. He answered that his written submissions dealt both with the OCP’s annexes discussed on January 21 (Annexes 1, 2A, 2B, and 2C) and the documents contained in the annex circulated by e-mail today. Mr. Karnavas noted that, in light of OCP comments earlier today, his team was now reviewing its list of documents. This prompted the judge to ask Mr. Karnavas how much time he would require to finalize this process. Mr. Karnavas estimated that they expected to be completed by tomorrow.

However, he noted, his team had some uncertainty about one issue, namely, that there had been mention made that Judge Lavergne had shown a document that the defense teams had not objected to at the time.[96] However, and “with all due respect,” parties were unable to object to judges in the system, Mr. Karnavas stated. Therefore, he was unsure what would happen to documents in this situation. Judge Cartwright appeared to be ready to answer this immediately, but Mr. Karnavas pressed on undeterred, stating, by way of conclusion, that he expected to have a redacted list ready by tomorrow.

Judge Cartwright responded, with a smile, that this seemed to be a “subtle way” of indicating that he wished to object to the document in connection with Judge Lavergne, suggesting that if he wished to do so, this should be in writing. She also took the opportunity to thank the defense counsel for the effort taken to prepare for the document hearing.

Mr. Karnavas then signaled that he had some confusion, namely whether parties still needed to move for the admission of a document after it had been presented by a judge. He clarified that he might not necessarily wish to respond to the document; rather, he was unsure what would become of the document. He noted that the Khieu Samphan Defense Team had already filed submissions in this respect. The uncertainty, he said, was what became of the portion of a document already presented by a judge and whether parties still had to move for their submission.

At the International Criminal Tribunal for the former Yugoslavia, Mr. Karnavas continued, while qualifying that he hoped he was not “testing” the Chamber’s patience, showing the document to a witness was not enough; an application was normally still necessary with respect to portions of documents that had not yet been shown. While Mr. Karnavas was “tempted at times” to object to a document presented by, say, Judge Lavergne, judges were entitled to do so.

Judge Cartwright said that she saw Mr. Karnavas’s point, but where no objections were made to the admissibility of a document referred to by a judge, that was the end of that matter. Responses, however, were a different matter. Stipulating that the Ieng Sary Defense Team had until Wednesday, January 23, 2013, to finalize their document list, the judge shifted her attention to the other two defense teams. She advised as follows:

The Khieu Samphan and Nuon Chea teams have both indicated their [unpreparedness] to make oral submissions objecting to the admissibility of any documents. We do note that their respective clients have been hospitalized since last week and that we have brought forward this hearing about admissible documents. Nonetheless, this is an issue that has been available since last week. Therefore, the Chamber has decided that the Khieu Samphan and Nuon Chea teams may file their objections in writing by Friday, February 8. All parties may have their opportunity to respond by Friday, February 22. The Chamber will then make its decision on the admissibility of documents, and that will conclude this process.

As to the presentation of key documents, Judge Cartwright advised:

The Chamber … gives the parties the opportunity to emphasize documents that they consider to be important to their respective cases, and the second purpose, which also answers the Khieu Samphan defense’s concerns … is that the hearings are dedicated to the presentation of documents and are aimed to ensure a greater measure of public accessibility to the documentary aspect of trial, namely, this gives the public to hear a summary of what these documents are about. Thirdly, [the Chamber is] giving those parties who seek it an opportunity to make submissions in relation to documents considered of specific importance for a segment of trial.

Whenever [this occurs], the accused will also be given an opportunity to comment on the document if they choose to do so … The Chamber notes that on a number of occasions, some of the accused have declined their opportunity to do so, arguing that they intend to exercise their right to remain silent. While no discussion on the admission of documents presented during this stage is to be allowed unless the issue of admissibility has not previously been discussed or ruled upon, it’s clear that the Chamber has never prevented the accused or their lawyers from discussing the relevance or probative value of the documents. …

The Chamber notes that the OCP has begun this process and that the Lead Co-Lawyers have indicated that they will be ready to make their presentation shortly. In order to clarify the procedure in relation to key documents from this point on, it seems most efficient given the inability of some of the parties to be ready to present their key documents, to ask the OCP to continue with its presentation on the movement of population phase one, and Tuol Po Chrey, then on the movement of population phase two. Then the Lead Co-Lawyers asked to make their own presentations on those topics.

Discussions Concerning Upcoming Presentations

Continuing on to a new topic, Judge Cartwright stated as follows:

That leaves, then, the question of joint criminal enterprise [JCE] and the roles of the accused. I think, president, we were going to propose that those topics be presented also by OCP, if they are ready to do so, and the Lead Co-Lawyers. That then gives the defense teams ample time to be ready by when we resume these presentations on key documents, and the Chamber will expect them to be ready to present their key documents and to make the comments on documents they wish to make.

The judge asked the OCP whether they would be ready to present their documents on JCE after it concluded its current scheduled document presentations. International Senior Assistant Co-Prosecutor Keith Raynor denied this. He explained that preparations for the current presentation had required a substantial amount of work, including on the weekend, since the document hearing was scheduled only last week.

The OCP was “mindful” of the “constraints that the Court is under” and of the need for efficient use of time, Mr. Raynor continued. However, ultimately, the OCP’s position was that it was not able to present the JCE documents within the time frame suggested. However, the prosecutor stated, it was willing to start preparation now, with some “forbearance in terms of time” since the presentation on JCE was “without a doubt, the most important document the OCP will present.” Indeed, it had begun these preparations already. In conclusion, Mr. Raynor expressed OCP’s wish to have more time and to advise the Chamber by the morning of Wednesday, January 23, 2013, as to how much time it might need.

Judge Cartwright responded by thanking the OCP for its clarification. She confirmed that the Chamber would await the OCP’s clarification on that point and would then rule on that aspect. She also took the opportunity to thank the OCP for their work in being ready for the document hearing in light of the associated “great deal of pressure” that attached to this.

The judge then confirmed that, “for the moment,” therefore, the Chamber would proceed with the presentation of documents relating to the first phase of the forced transfer and Tuol Po Chrey and then the second phase. The judge also reminded the defense teams that they were counted on to be ready, acknowledging that occasionally they were asked to be ready at “short notice” given health issues and other matters.

At this point, the floor was given to Ms. Guissé. She noted that as outlined in the memorandum concerning this hearing, it was indicated that this hearing would not relate to the admissibility of documents.[97] Her team’s position was therefore that such hearings would eventually be organized. Furthermore, they understood that it was for their clients, and not the defense teams, to make comments on the documents.

After a brief conference, the president said that he would give the floor to Judge Lavergne to respond in French to Ms. Guissé. Judge Lavergne indicated that he might not be in a position to respond correctly. He asked whether the Chamber’s position was clear today. Ms. Guissé said it was clearer today, and her team’s position had been predicated on what was previously stated. Judge Lavergne responded that when there were such hearings, parties were free to make comments on the admissibility of the documents. Ms. Guissé said her team did not understand that the defense counsels were required to make responses, but now they understood the position.

At this point, and with an apparently wry smile, the president advised that the Chamber would adjourn the hearings at the earlier time of 3:40 p.m.

Hearings in the ECCC will continue at 9 a.m. on Wednesday, January 23, 2013, with continued presentation of relevant documents on the first and second phases of the forced movement of the population and documents relating to the Tuol Po Chrey killing site.