“None of Our Business”: Former Commander Describes Military Life

After a weeklong break, witness testimony resumed on Monday, May 20, 2013, in Case 002 at the Extraordinary Chambers in the Courts of Cambodia (ECCC). Witness Ieng Phan, a former Khmer Rouge military commander who joined the revolution after the 1970 coup d’état by General Lon Nol, testified about military structure and policy before and during Democratic Kampuchea (DK). He responded to questions from the prosecution, civil party lawyers, and defense attorneys for Nuon Chea and Khieu Samphan. After the witness examination concluded, the Trial Chamber heard oral submissions regarding the procedure for questioning civil parties due to testify over the next two weeks.

On Monday, May 20, 300 students from Svay Rieng University, 100 people from Kampong Chhnang province, and 30 civil parties from Kandal and Kampot provinces, attended the hearing. Defendant Nuon Chea observed proceedings remotely from a holding cell due to health ailments, while co-accused Khieu Samphan remained in court for the duration of witness testimony.

New Witness Called to the Stand

In response to customary questions from Trial Chamber President Nil Nonn, new witness Ieng Phan told the chamber that he was a 60-year-old soldier living in northwestern Battambang province. He was interviewed twice in Battambang town by investigators from the ECCC’s Office of the Co-Investigating Judges (OCIJ), in 2009 and 2010 respectively. Mr. Phan confirmed he had reviewed the written record of his interviews, which was consistent with responses he gave at the time.

Prosecution Leads Questioning of Witness Ieng Phan

To begin, International Senior Assistant Co-Prosecutor Keith Raynor noted that Mr. Phan’s told court investigators on November 23, 2009, that he joined the army on July 28, 1970, at the age of 18 and then the military forces in District 105 in Takeo province in September 1970.

When asked about his first military encounters with Lon Nol soldiers, Mr. Phan replied that he joined the army after then Prince Norodom Sihanouk – in Beijing at the time – appealed to Cambodian citizens to enter the maquis. Mr. Phan said he engaged in numerous battles in 1973 and 1974 in the provinces of Takeo, Kampot, Preah Sihanouk, Kampong Speu and Phnom Penh. He told the court the liberated areas became larger at that time and Lon Nol soldiers only occupied the main roads and provincial towns. “In general, the movement between 1970 to 1975 attracted huge support from the ordinary people,” the witness stated. “At that time, there was none to oppose the liberation forces, in fact they actually joined the liberation forces.” Mr. Phan said he did not know what happened to Lon Nol soldiers who were arrested.

The prosecutor inquired if Mr. Phan knew of civilian populations being evacuated from Ang Tasom[2] and Kampong Trach[3], and the witness responded that during battles civilians would evacuated themselves in order to avoid the fighting. People from provincial towns reached by liberation forces moved to the rear, Mr. Phan testified, but he did not know if they returned because he was low ranking at the time. The witness stated that between 1970 and 1975 liberation forces communicated via radio, and when he joined the army, units used telegrams to communicate with other units or with headquarters – “between the front command and the rear command”.

Khmer Rouge Military Structures Scrutinized

Moving to a new topic, Mr. Raynor asked numerous questions about military terminology and structure at the time. Mr. Phan provided the following details: a platoon was composed of 30 soldiers and split into three squads; a company comprised three platoons and therefore included nine squads; a battalion was made up of four companies[4]; a regiment was composed of four battalions; a brigade comprised four regiments, and a division was made up of five brigades – one an “intervention brigade” and the other four infantry. Mr. Phan told the court that in 1974, he became commander of Special Battalion 203 in the Southwest Zone – subordinate to Brigade 2, which was controlled by Sam Bith – that included three deputy commanders and a radio operator.

Referring to Mr. Phan’s comments to investigators, the prosecutor inquired about the frequency of meetings called by Southwest Zone commander Ta Mok and attended by brigade and division commanders. Mr. Phan replied that he could only participate in meetings with his regiment, while brigades and divisions could attend zone level meetings. He confirmed that after such meetings, brigade and divisional commanders would filter information down to the regimental and battalion level. As a battalion commander Mr. Phan said there were monthly meetings, and special meetings he had to attend when called upon by the regiment commander. The witness described how he would convene either monthly meetings or special meetings of companies under his control, after receiving commands from the regiment level.

Prosecution Explores Military Order to Attack Phnom Penh

Mr. Raynor read an extract in which Mr. Phan told investigators Sam Bith said in meetings that the Southwest Zone army was to attack Pochentong airport[5] and evacuate the civilian population from the city to ascertain who the Lon Nol soldiers were. When asked about the meetings, Mr. Phan replied that when receiving an order from the upper level – particularly regarding the attack on Phnom Penh – he knew only about the plan for his own battalion, which was to attack in the area of Kantuok[6] and leading up to Pochentong airport. The witness stated that he received these orders one month beforehand, and that his special battalion unit launched a sudden attack before withdrawing swiftly and allowing the infantry to take charge[7]. He testified that Lon Nol officers were not difficult to identify because they wore different military uniforms to his soldiers, who dressed in black. Mr. Phan said there was a “universal principle” regarding prisoners of war (POWs). The upper echelon instructed them not to kill any POWs and those arrested after an area was liberated were sent to the rear, which decided what to do with them, he added.

In response to a question about evacuation orders, Mr. Phan asserted that during battles civilians would flee to the rear and, as a battalion level commander, he did not know the policies of the upper echelon at the rear. The witness said he never received instructions from the upper echelon about the evacuation of Phnom Penh[8]. “What I only observed was that for any battlefield area, the people or the civilians would evacuate themselves to the rear,” he recalled.

Discussing the attack, Mr. Phan testified that his battalion did not enter Phnom Penh, but took control of Pochentong airport before withdrawing to the rear after the infantry arrived at the facility. About two months after the liberation of Phnom Penh, Mr. Phan continued, his battalion was ordered by the upper echelon to move to the Cambodian-Vietnamese border in Takeo province[9].Mr. Phan said Sam Bith was the divisional commander at the time, under Southwest Zone commander Ta Mok. The witness affirmed that in the Southwest Zone, Sam Bith headed Brigade 2 and Meas Muth was in charge of Brigade 3, which was based along both sides of National Road 4 during the war affording access to Kampong Som[10] and Phnom Penh. Mr. Phan added that Meas Muth was in charge of Brigade 3 for about two to three years, but left just before the liberation of Phnom Penh.

“Screening” within the Khmer Rouge Ranks

After reading an extract from Mr. Phan’s statement to OCIJ about “screening” of soldiers in the Khmer Rouge army, Mr. Raynor inquired if he ever had to provide a biography. Mr. Phan responded that “screening” was common in the Khmer Rouge military, particularly around 1976 and 1977. People who had relatives who were former high-ranking officials were removed from the ranks and sent to raise chickens or pigs, plant cotton or other such activities, Mr. Phan recounted, but there were only two or three such cases at company level in his unit and nothing happened to them.

After quoting from the minutes of a meeting of ‘secretaries and deputy secretaries of divisions and independent regiments’ dated August 30, 1976, Mr. Raynor inquired if the witness heard military officials discuss “no good elements” as mentioned in the minutes. Mr. Phan replied that in the military people would talk about the screening and removal of various people, but there was no official instruction from commanders regarding such a policy. He recalled that if people were to be removed from his unit, there were instructions from the upper echelon and he was not informed. Zone or division level officers came to remove people from his battalion, Mr. Phan recollected:

When they arrived they would say they would like to invite this person or that person, as they were required by the upper level. And, of course, I did not have anything to say in that, and everybody was scared. I myself was scared, in particular during the period from 1976 to 1978. Regardless of your position as an ordinary combatant or a commander, everybody was scared.

When asked about the removal of “new people who don’t yet understand things” as stated in the aforementioned meeting minutes, Mr. Phansaid he was unclear about such issues, as “screening” was a political affair that the military did not know much about. Mr. Phan told the court he had heard the CIA and the term “screening” mentioned during the war. He confirmed that he was promoted in October 1976 from special battalion commander to commander of Regiment 12, under the supervision of Brigade 2. Mr. Phan testified that after the liberation, around late 1976 or early 1977, two additional brigades were installed in the Southwest Zone. Brigades 2 and 3 were changed to 210 and 230 respectively and the additional brigades were called 250 and 270, the witness recounted, all of which were stationed along the Cambodian-Vietnamese border. Mr. Phan stated that in early 1978 the upper echelon sent his Regiment 12 to Svay Rieng province, where he was assigned to lead three other regiments and promoted to commander of Intervention Brigade 221.

Citing an extract from Mr. Phan’s interview with court investigators in which he described communication with the upper echelon as a brigade commander, Mr. Raynor asked if telegrams he received from Son Sen[11] were copied to other people. Mr. Phan testified that he had direct communication with “Ren” and Son Sen via telegrams, which he would not pass directly onto his subordinates. “My approach was not to give them any written documentation because that is for the purpose of the secrecy, and I would convene a meeting for my subordinates,” he said. Mr. Phan described how telegrams were used to communicate military instructions, “In between 1976 to 1978, there were issues at the border with Vietnam, so the instructions from Ren and from Son Sen in the telegrams were about the protection of the territorial integrity at the border, and about the attacks and counter attacks.”

After the prosecutor pressed him for detail about the purpose of a 1977 meeting he attended at Ta Mok’s house in Takeo city with brigade and division commanders, Mr. Phan testified that the meeting in late 1977 primarily addressed the need to send certain military units to Svay Rieng province in the east. When asked how often Ren wrote to him about meetings in Phnom Penh with Pol Pot and Son Sen, Mr. Phan said that when he was in Svay Rieng a division headed by Ren was formed from five brigades, including Intervention Brigade 221, a mobile force that he led, and others such as 840 and 807. Ren had the authority to attend meetings with the upper echelon and would thereafter disseminate information to the five brigades at a meeting with brigade commanders and deputy commanders, Mr. Phan added.

Around 1977 and 1978 there were already attacks back and forth with the Vietnamese forces. For that reason, secrecy was at the utmost importance and of course we would not be allowed to leak any information and telegrams were in fact encoded. … The military did not focus about anything at the rear. We only focus on about the protection and the defense of our territorial integrity and the attacks and counter attacks.

Mr. Phan stated that because of attacks by Vietnamese forces in late 1977 and early 1978, Ren went to Phnom Penh frequently for meetings, sometimes weekly depending on the urgency of the situation, with the longest trip lasting 10 days. Back at the base, division commanders would disseminate military instructions to subordinates regarding defense, attack and counter attacks and he would in turn relay the information to his subordinates at the regiment level, the witness recollected.

Prosecution Questions Witness about Later Evacuations

Switching topics to the evacuation of people, Mr. Raynor pressed the witness for detail about the second “large-scale” evacuation in mid-1975. The witness responded that he was then a special battalion commander and was sent by the upper echelon to the Vietnamese border in Takeo province[12] three months after Phnom Penh was liberated, rarely returning to his home village. Mr. Phan testified that he only heard about the evacuation of people to provincial towns and then to other areas beginning in mid-1975, but did not witness it. The witness recalled that some of his relatives who had lived in Phnom Penh were evacuated back to his native village in Takeo province’s Tram Kak district. He commented that he saw people evacuated when he was engaged in battle near Pochentong airport, fleeing on foot and in vehicles.

At this point, National Senior Assistant Co-Prosecutor Song Chirvoan took over the witness examination, querying whether the Khmer Rouge had other ways of identifying Lon Nol soldiers besides their uniforms. Mr. Phan replied that at the time of the attack on Pochentong airport soldiers were only recognizable by their uniforms. Mr. Phan repeated his earlier comment that the upper echelon instructed them not to torture POWs, who were arrested, sent to and dealt with at the bases. The witness recalled that soldiers in his unit focused on “advancing to the front” not arresting Lon Nol soldiers, of whom there were hundreds – perhaps thousands – in that area. Mr. Phan stated that if his soldiers met Lon Nol officers they confiscated their weapons and ammunition and sent them with civilians to the rear.

When asked how it was ascertained within the military that people were associated with high-ranking Lon Nol soldiers[13], Mr. Phan testified that screening was easy because everyone had to write their biography and “nobody dared to hide anything” because people would go to their native villages to verify their background. Thus, Mr. Phan asserted, it was easy to uncover if someone was involved with Lon Nol soldiers and they would then be secretly monitored in their unit. The witness told the court that he had to write his biography when he first joined the Khmer Rouge army, including his name and place of birth. “During the war time, whether the biography was good or not, the force would be retained, but in 1977 or 1978, for those people who had the inclinations during the screening process, then they would be removed and transferred to other locations,” he said. Mr. Phan added that he would request subordinates to write biographies, which would be sent to the upper echelon.

With this response, the prosecution finished questioning Mr. Phan.

Civil Party Lawyers Begin Examination of Ieng Phan

Leading the civil party lawyers’ witness examination, National Civil Party Co-Lawyer Chet Vanly asked the witness what year he became a party member[14]. Mr. Phan stated that he became a party member in 1975, after the liberation of Phnom Penh while at the battalion level. Under questioning about the attack on Pochentong airport, Mr. Phan testified that Khmer Rouge forces did not simply attack once then reach Phnom Penh, but began at the outskirts and gathered forces in Kantuok before his special forces attacked the airport immediately before April 17, 1975. The witness recalled that the infantry remained in Kantuok while the special unit attacked Lon Nol forces at the airport from behind, exploding a warehouse containing ammunition and causing them to surrender. He reiterated that his main duty was to confiscate the weapons and ammunition of surrendered Lon Nol soldiers, who were sent along National Road 4 to the rear bases. The special unit withdrew after the attack was completed, the infantry gathered “the spoils of war” and the district and sector committees oversaw the civilian situation, Mr. Phan said.

After the victory was achieved, people had already started leaving the city. I did not know about the evacuation but of course during the heat of the battle, people would flee from the area and they would continue to leave until the city was emptied, and the situation was very confusing at the time.

Citing Mr. Phan’s interview with court investigators, Ms. Vanly sought further detail about a trip the witness took to Phnom Penh after the city was liberated. Mr. Phan said he returned to the base half a month after the attack on Pochentong airport and requested permission to visit the city after liberation. The witness described the city during his one-day visit as quiet and having “no ordinary people” – only Khmer Rouge soldiers. “The markets were in chaos and material, machinery, were dumped on the road and there was no people over there,” he recalled.

Under further questioning about the meeting he attended at Ta Mok’s house in late 1977, Mr. Phan testified that the meeting aimed to organize sending his regiment to the East Zone, where some Southwest troops had already gone, and to prepare resistance against Vietnamese forces. Mr. Phan told the court that he did not know about purges of cadres from the East Zone because he moved there in early 1978, when they had already taken place. Following another two queries on this topic, President Nonn reminded the lawyer to remain within the confines of the current trial.

Examination Returns to Evacuation of Phnom Penh|

Before handing over to International Civil Party Co-Lawyer Christine Martineau, Ms. Vanly queried whether there was a policy during the evacuation regarding non-use of money and closure of markets. Mr. Phan confirmed that such policies existed and the upper echelon talked about relying on oneself and not needing foreign aid or money.

Ms. Martineau began by asking about the objectives the party set for the army during the Khmer Rouge period. Seeming to grow slightly frustrated at repeating answers, Mr. Phan replied that as a soldier he had limited knowledge of political affairs and engaged in military training, such as shooting guns and fighting in battlefields.

When asked about any other duties he might have had, Mr. Phan said that after he was sent to the border in Angkor Borei district a few months after the liberation, he and his troops were assigned to defend the country and asked to farm and produce three tons of rice per hectare. The witness told the court that part of military work involved farming to ensure self-sufficiency and some soldiers worked with civilians at the time. “We became the role model military unit regarding how we cooperated well with the villagers,” he added. “We also improvised some tools and machines so that they could be used as the pump machines to irrigate water for the paddy fields.”

Soldiers’ Relationships with the “New People”

Mr. Phan testified that when he returned home from Angkor Borei he only befriended some evacuees, because soldiers were afraid to talk to them. “I may talk to only some of my relatives who are well known to me,” he said. Pressed for detail about this fear, Mr. Phan replied that it was “none of the soldiers’ business” to talk to people and it would have been risky to converse with strangers or evacuees.

We as soldiers would be questioned a lot if we were seen talking to new people, and at that time, such questions would be put by the chief of sector or the secretary of the zone, and the questions would not be easy to answer if we were believed to have talked to the new people. … The new people would be administered differently from the base people and in the military … things that fall outside the scope of our authority or assignment; we would never wish to risk putting our job on the line. And for that soldiers did not engage in conversation with the villagers or the civilians.

Then describing the situation in his hometown, Mr. Phan said he observed that the new people and base people “mingled well together” and appeared to have the same food rations, and he did not see many people eating rice porridge. “They ate steamed rice instead and they were equally treated,” he added. Under questioning again about the fear he harboured about talking to “new people,” Mr. Phan testified that everyone was fearful and meetings that were not properly arranged and authorized were not permitted. The witness recalled that military officers had to submit biographies and would have their backgrounds checked, and Mr. Phan was concerned his affiliation with relatives who had once lived in Phnom Penh would jeopardize his position. He described the fear as follows:

This fear atmosphere as seen both in the military and among the civilians, and I just don’t understand or can’t exactly tell you when such fear was instilled in the first place. But to tell you the truth, at that time the policy was rather strict and people had to mind their own business only. People would not be expected to understand everything in detail, and there was no time when such intimidating environment would be read out in a meeting, but we were just fearful.

Defense Attorneys for Nuon Chea Cross-Examine Ieng Phan

After National Co-Lawyer for Nuon Chea Son Arun sought information about Mr. Phan’s military career, the witness replied that he joined the revolutionary army in July 1970 in Ang Tasom commune and then the forces of Tram Kak district – codenamed District 105 – before joining the Sector 13 force in Takeo in 1972. He was eventually promoted from being a battalion commander starting in 1971 to a company and, in 1974, to commander of Special Battalion 203 attached to Brigade 2 in the Southwest Zone. Mr. Phan recalled that in 1976 he became a regimental commander under Brigade 2 and later commander of Intervention Brigade 221 in Svay Rieng. Mr. Phan told the court he was gradually promoted up the military structure due to his experience. He said he did not know the overall breakdown of divisions under DK, but stated that a division was comprised of five brigades including an “intervention brigade,” based on Chinese military structure.

Under questioning from Mr. Arun about the attack on Pochentong airport on April 16, 1975, Mr. Phan recounted that it was fortunate the ammunition warehouse his special unit attacked exploded, as it caused confusion among enemy soldiers and allowed Khmer Rouge forces to assume control. Mr. Phan clarified that while Lon Nol soldiers were sent to the rear, his forces did not send them. On separate topics, the witness said other forces besides those from the Southwest Zone were later sent to the East Zone, and he was permitted to attend the aforementioned late 1977 meeting at Ta Mok’s house because they were planning to send his regiment to the East and he was soon-to-be a brigade commander. Mr. Arun inquired if Mr. Phan was familiar with Chhouk Rin[15]. The witness replied that he had not directly met Chhouk Rin, who was in charged of a regiment under Brigade 230 in Kampot. Mr. Phan stated that Ta Mok chaired the meeting he attended at his house in late 1977.

Nuon Chea’s Lawyers Scrutinize Treatment of Lon Nol Soldiers and Officials

At this juncture, International Co-Lawyer for Nuon Chea Victor Koppe took over the cross-examination, pressing Mr. Phan for more detail on his earlier comment that there was a “universal” rule not to mistreat captured Lon Nol soldiers. The witness answered that the upper echelon directed Khmer Rouge military officers not to maltreat POWs through telegrams and “the chain of command”, including during the period between 1970 and 1975. Mr. Phan said he recalled that before fighting, their superiors instructed soldiers about this policy. After Mr. Koppe queried whether Mr. Phan was ever involved in the execution of captured Lon Nol soldiers before or after April 17, 1975, the witness’ counsel interjected that the question could invite the witness to self-incriminate. President Nonn instructed the counsel to consult first with the witness, and after a brief interlude Mr. Phan testified that within his unit there was no execution, torture or mistreatment of Lon Nol soldiers during or after fighting. Then three months after liberation of Phnom Penh, Mr. Phan said he was too preoccupied at the border to be concerned about capturing Lon Nol soldiers. “I personally did not receive any orders from my superiors regarding the mistreatment of the Lon Nol soldiers or the execution of the soldiers, and I belonged to different levels,” he stated. “I rose through ranks and I never remember having been instructed as such.

In response to questions from Mr. Koppe about whether he heard Khmer Rouge officials including Ta Mok or Son Sen talk about executions, Mr. Phan repeatedly stated that he had received or heard no such comments. He confirmed that after 1979 he had heard “hearsay” that some Lon Nol soldiers were executed in various zones, but had never witnessed it. Mr. Phan asserted that he had heard about a policy to kill Lon Nol soldiers above a certain rank but he was never instructed by his superiors to commit such acts. The witness affirmed that he had heard about an apparent policy to execute Lon Nol administration officials prior to April 17, 1975, but he could not say whether the practice existed or not and neither he nor his subordinates committed such offences. Mr. Phan testified that he did not know what happened to Lon Nol soldiers or civilians who were captured and sent to the rear, and he had never heard of the “seven super traitors.”[16] “When it comes to who shall be destined for being executed, this matter is none of my business,” he said.

Under examination about the mode of attacks on cities occupied by Lon Nol soldiers, the witness stated that commanders received instructions via telegram – then communicated to subordinates – to endeavour to minimize civilian casualties through identifying targets that were “of military necessity.” “Before we attacked a military target, we would conduct a search or survey to see how we can attack these premises successfully and with the minimum civilian casualties,” he said.

Mr. Phan then told the defense lawyer he did not know about any conflicts or tensions among troops from the Southwest and East zones and he did not know any East Zone commanders, even today. “We were only focusing on our own respective unit,” he said. “Although I was a military commander, but I was pretty young then and I did not want to know much about the affairs in other zones.” When asked if in 1973 or 1974 he would hear about attacks in other zones such as Siem Reap or Battambang, Mr. Phan concurred that he heard broadcasts on Khmer Rouge radio about attacks in various battlefields.

Witness Quizzed about Nuon Chea

Answering questions about his knowledge of Nuon Chea, Mr. Phan said he never met Nuon Chea or anyone from the upper leadership, and only heard their names through instructions from Ta Mok. There was no direct communication between himself and Nuon Chea – “only Pol Pot and Son Sen were in charge of the military” – and he did not know his role at the time, Mr. Phan said, stating that he only later heard that Nuon Chea was deputy secretary[17]. The witness told the defense lawyer he never heard Nuon Chea speak during meetings or political education sessions, but heard from his superior about things Nuon Chea had said during such sessions. Finally, Mr. Phan confirmed that he remained a Khmer Rouge soldier after 1979 until the day they reintegrated into the Cambodian government, and was still a soldier today.

Khieu Samphan Defense Begins Witness Cross-Examination

Firstly, the witness clarified for National Co-Lawyer for Khieu Samphan Kong Sam Onn that he became a platoon commander at the provincial military level in 1972, prior to working in the military at Ang Tasom commune and district military at Tram Kak district, where he was head of a squad[18]. “At the beginning I was the head of a squad of 12 people, then the commander of a platoon, then commander of company, battalion, regiment, so on and so forth, in this hierarchical order,” he said.

Under questioning about his family and class status, Mr. Phan replied that he came from a lower middle class peasant background in Ang Tasom in Takeo province, where he attended high school. The witness said he rose through the ranks because he was brave, had good morals and served people well, and his class background perhaps helped as commanders had to be poor or lower middle class peasants.

Fighting between Khmer Rouge and Vietnamese Troops

Switching topics, Mr. Sam Onn inquired about the nature of the attack by Vietnamese troops described by Mr. Phan in his statement to court investigators. The witness told the court that by late 1977 and early 1978, Vietnamese troops had launched a “large scale attack,” assaulting Cambodia on all fronts in Svay Rieng province, where they had already occupied areas in Chanthrea and other neighbouring districts. Continuing, Mr. Phan described being wounded and hospitalized for three months during attacks by Vietnamese troops, who occupied the Svay Rieng border. By the time he was discharged, Mr. Phan recalled that Vietnamese troops had encroached deeper inside Cambodian territory and Khmer Rouge troops retreated because they were outnumbered. The Vietnamese arrested some Khmer Rouge soldiers and almost all of the five divisions deployed to counter them vanished, Mr. Phan said, adding that by late 1978 Vietnamese troops had reached the area around National Road 5.

When asked about the scale of fighting in Kampot, Mr. Phan answered that there was fierce fighting in Takeo and Kampot in 1977, and by midway through that year Vietnamese troops had invaded close to the Takeo provincial border. The witness recollected that while Khmer Rouge soldiers managed to fight them back, there was a persistent “tug of war” between the warring armies.

Witness’ Knowledge of Khieu Samphan Questioned

Upon being pressed about his knowledge of Khieu Samphan, Mr. Phan testified that he had heard Khieu Samphan’s name before 1970 when he was at school and knew he was a member of parliament and owned only a “very old bicycle”, but not what he looked like. The witness said he had heard that Khieu Samphan was president of the state presidium, but never met him before or during the DK period. “When it comes to military matters or military training, we never received anything from him,” he added.

The defense for Khieu Samphan finished questioning Mr. Phan, marking the end of his testimony at the ECCC.

Lengthy Discussion to Confirm Scheduling of Civil Party Testimony

After Nuon Chea and Khieu Samphan both elected to quit the hearing, a lengthy and somewhat confusing discussion ensued between Trial Chamber judges and civil party lawyers regarding the scheduling of testimony next week. Following comments from Trial Chamber Judge Silvia Cartwright and International Civil Party Lead Co-Lawyer Elisabeth Simmoneau Fort and a brief Trial Chamber consultation, Judge Cartwright confirmed that civil parties would be permitted to testify on May 27, 29, and 30 and June 4, as the civil party lead co-lawyers choose, with an additional half day on June 5 for the hearing of an expert. Judge Cartwright noted that should the chamber decide after hearing oral submissions on the topic to follow to allow other parties to the case to question the civil parties, the lawyers must readjust their schedule accordingly as they would not be granted extra time.

Oral Submissions on the Right to Question Civil Parties

As earlier stated by Judge Cartwright, the chamber heard brief oral submissions from all parties on the issue of “whether other parties have the right to question civil parties following their statements.”[19]

Taking the lead, National Civil Party Lead Co-Lawyer Pich Ang noted that two issues were highlighted in an email[20] from the Trial Chamber’s senior legal officer: civil party lead co-lawyers’ query about whether prosecutors and defense counsels would be permitted to question civil parties testifying about harms suffered and the lawyers’ request that civil parties be permitted to leave the courtroom before other parties can comment on their statement of harm.[21] Mr. Ang stated that he believed it was up to the court to decide whether parties would be allowed to question civil parties. In relation to the second point, he asserted that civil parties should be permitted to speak of harms suffered in relation to the entirety of the Khmer Rouge regime, not just the scope of Case 002/01.

Such statements should be heard so the UN and others can try to prevent similar crimes from occurring in the future, Mr. Ang said, averring that they were also an opportunity for civil parties to express their loss and support their applications and reparations requests. The civil party lawyer further contended that the statements of harm were partly for national reconciliation, allowing civil parties to relieve their psychological suffering. After Mr. Ang restated the lawyers’ request that their clients be permitted to leave the room so they cannot hear comments from other parties that might adversely affect their psychological wellbeing, President Nonn interjected to remind him to clearly outline the request and the reasons for it.

Reaffirming his last point, Mr. Ang handed over to Ms. Simmoneau Fort, who began by distinguishing between previous hearings when civil parties were heard and examined on alleged facts, after which they were able to make statements on suffering and victim impact and parties could comment once they had left the courtroom. Over the next couple of weeks, civil parties would be heard only on their suffering and victim impact, Ms. Simmoneau Fort said. She continued:

We intend to hear some four civil parties per day and we have estimated some 30 to 45 minutes to be allocated for the civil party lawyer during cross-examination … When a party is allocated time for questioning, it is not necessary for the defense teams to avail themselves of time for commenting. This is inappropriate and not justified in this particular case. They will be accorded normal questioning time. What we suggest … is that each civil party be heard, that the civil party lawyer ask the civil party questions, and that time for examinations be given to the co-prosecutors and the other defense parties to the scale of 30 minutes respectively.

Prosecution Submits Arguments about Civil Party Testimony

Firstly, Mr. Raynor submitted that the civil parties should be questioned on all issues of relevance to the case and that they provide direct evidence inevitably referring to individual crime sites. “These two pieces of evidence – the suffering on the one hand and the crime site on the other – are inextricably linked and cannot be separated,” the prosecutor asserted. Thirdly, Mr. Raynor argued that Case 002 differed from Case 001[22], where most of the civil parties were relatives of the victims and could therefore not give direct evidence of crimes. Civil parties proposed to testify would in many cases be victims of the forced movement and would inevitably give evidence that goes to the heart of the present trial, Mr. Raynor contended. “It is the prosecution’s submission that if the Trial Chamber entertains either the prosecution or the defense simply being able to make comments on suffering, that that would not conform with existing practice,” he said. Mr. Raynor further submitted:

If during the testimony of a civil party, that civil party, whilst being spoken to about suffering, provides probative and relevant evidence going to issues in the case, it is only fair that the defense should be able to challenge such evidence, and if that is so, equality would demand equal rights for the prosecution and the defense.

The prosecutor noted that in a morning email the Trial Chamber proposed that civil parties provide a list of questions to be asked of the accused, which he argued the parties should be given the right to examine. Mr. Raynor said he believed the prosecution and defense had been proceeding on the basis that a full examination would occur. He concluded:

We would urge the court to treat these civil party witnesses in the same way as previous civil party witnesses. … Prosecutors wish to give the Trial Chamber the assurance that CP witnesses will be dealt with sensitively and that the prosecution would only seek to ask questions going to broader issues if the need really arises.

Defense Teams Make Brief Oral Submissions

After the prosecution concluded their submissions, Mr. Koppe rose to state that, unexpectedly, he agreed with all of the prosecution’s submissions. He added that the defense would also approach civil parties sensitively.

Finally, International Co-Lawyer for Khieu Samphan Arthur Vercken stated that he was “shocked” at the notion that people who present themselves as victims should not be properly questioned on the alleged facts beforehand. “Bringing people here for them to speak only about their harm suffered without them explaining the reasons and the experience that led to this harm seems unusual to me and incongruous in such a trial,” he said, arguing that reconciliation was not that important in relation to the trial itself. “We’re going to be hearing a witness who will speak to us again because when he expressed himself on the harm he suffered, he brought up new facts.”

In a brief response, Ms. Simmoneau Fort stated that the hearing might appear “astonishing” for those from a civil law background. “If there has been expansion of discussion on the facts in the indictment, then we would have to allocate up to one day for each civil party if we were going to address the totality of facts,” she said.

After the oral submissions concluded, President Nonn said the chamber would rule on the issue in due course and adjourned the hearing. Proceedings are set to resume at 9 a.m. on Tuesday, May 21, 2013.