Prosecution Team Continues Closing Statements for Second Day

National Co-Prosecutor Chea Leang led off the morning by continuing to review the evidence against the defendants regarding the second forced transfer, in which some 50,000 citizens were moved by train from the east to the north of the country. Leang recounted how these people, all “new” or “April 17” people originally from the evacuation of Phnom Penh, were transported in the fall of 1975 in railway cars intended to be used for hauling goods.

Present in the courtroom was Khieu Samphan. Nuon Chea observed the proceedings by live audio-visual feed from his holding cell in accordance with the trial chamber’s decision regarding his health.

The prosecution reviewed evidence linking the defendants to the orders and implementation of the forced transfers, including a telegram dated 30 Nov, 1975 demonstrating that the transfer was being carried out with party center’s orders because it included a request for a decision on the matter of a certain implementation problem.

Second forced transfer deaths examined

Ms. Leang asserted that the second forced transfer resulted in many predictable deaths, contrary to assertions by the defense that the deaths were an “accident,” and “an unintended consequence of pursuit of an enlightened political program.” She stated that massive numbers of deaths were a direct and inevitable consequence and that the CPK leaders knew this but did nothing to alleviate the suffering. There were no food stations, no water. She recounted evidence showing that people were herded like cattle into railway wagons, that railroad tracks were littered with corpses, that soldiers threw children out train windows, and that, without facilities on the wagons, people were forced to relieve themselves in the crowded trains.

“Your honors, just step back a moment,” said Leang, “and imagine the stench and lack of light, the uncertainty about the future, the fear about being moved yet again under armed guard, the thoughts of impending death.”

Reminding the court that independent sources tallied the evidence of death, Leang included in this portion of her presentation the specific recollections of several witnesses. It was recounted how, when someone died, the train did not stop; instead, soldiers would toss the body from the wagon. Another testimony recounted how a woman forced to transfer with children to Pursat Province by train said, “Crying children were thrown out the windows by guards. The scene was extremely frightening.”

Leang added information about what life was like for people who survived the transfer. Left to fend for themselves in the jungle, they might have only thin rice gruel to eat, or, failing that, they tried to survive on worms and leaves. This “inevitably led to further deaths still directly related to the second forced transfer,” she said.

Her illustrations, Leang said, served to underscore her point that “each death occurred as a direct result of the immediate aftermath of the second forced transfer, and is included in the scope of this trial.”

Deputy Co-Prosecutor Smith takes to the podium

At 9:30 a.m., Leang yielded the floor to her colleague, Deputy Co-Prosecutor William Smith.
In his greetings to the assembly, Mr. Smith included remarks to the judges, the other members of the court, and even those in the gallery and watching across the world online, saying, “To those interested in seeing that society protects the human rights of the victims, of ourselves, and of the accused, your presence here today is important and necessary to the process.”

He reviewed Ms. Leang’s argument that the actions she described were the product of a longstanding and organized criminal plan by the defendants and others of the CPK Party center, and that his remarks would also address the similarly brutal treatment of people elsewhere, in particular the events at Toul Po Chrey in Pursat Province.

Mr. Smith remarked that the massacre at Toul Po Chrey would not have happened were it not for a well-established policy to kill former officials of the Khmer Republic, “a policy disseminated through an organized structure to a loyal and disciplined force” by the accused and other CPK leaders. His next series of remarks centered on addressing that policy and highlighting the evidence supporting the crimes committed as a result during both the evacuation of Phnom Penh and during the massacre at Toul Po Chrey.

A brief historical review of 1970-1975

Mr. Smith provided a brief historical review of the war between the Khmer Rouge (KR) and the Khmer Republic between 1970 and 1975. To the Communist Party of Kampuchea (CPK), anyone in a uniform other than theirs stood for a corrupt regime with philosophical differences that carried “life and death contradictions requiring resolution.” The evidence of how those contradictions were resolved is overwhelming: “resolution of these contradictions was achieved by their policy of persecution and murder,” said Mr. Smith. That policy “remained in place throughout the three years and eight months that the CPK held power.”

The policy to persecute and kill former Khmer Republic officials became increasingly radicalized beginning in 1973 when an issue of the party’s magazine, Revolutionary Flag, disseminated the CPK policy on the classification of enemies. It proclaimed that soldiers and police were a special class of enemy and were to be abolished. (The class scheme also included intellectuals, monks, all national minorities, and a “separate or special” class for persons who did not fit neatly into the class scheme.) In essence, the policy was an extension of the KR policy to kill the most senior officials in the Khmer Republic. In October, 1975, six months before the evacuation of Phnom Penh, it was written as “absolutely necessary” to kill the seven leaders of the Khmer Republic regime. Eventually, two of the seven whose executions were called for (the Prime Minister and the prince) were captured following the surrender of their government during the CPK entry to Phnom Penh, and executed along with scores of others.

In a video by videographer Thet Sambath that Mr. Smith played for the court, Nuon Chea confirmed CPK orders to kill Khmer Republic officials. “They were to be liquidated,” Nuon Chea said.

“Let there be no doubt Chea is admitting to murder,” said Mr. Smith, “murders that are charged in this indictment, an admission made under no pressure, with resolve, certainty, no apology and no remorse. It is disturbingly clear that Nuon Chea still believes extra-judicial killings in DK were justifiable and necessary.”

Addressing the defense contention that there was a possibility of a coup to explain some of the reasons for the widespread Khmer Republic killings, Mr. Smith recalled how Ieng Sary, a co-defendant with Nuon Chea and Khieu Samphan until his death earlier this year, reported in testimony that orders came from the party center leaders, and that the scope of the killing orders were not limited to the top leadership. The order to kill was widened to include lower level civil servants and military personnel. Iang Sary said, “CPK leadership decided to do whatever was required to keep that group from being able to rise up and oppose the revolution.”

Obedience to central party orders examined

Mr. Smith, continuing his theme of demonstrating obedience to central party orders, framed his next series of comments on the killings of April, 1975 in two parts. First, that Khmer Republic personnel (sometimes also referred herein as Lon Nol soldiers, or those in service to the Khmer Republic’s president, Lon Nol) were killed in Phnom Penh, during transit, or on arrival at their new destinations. Second, the killing of those Khmer Republic soldiers and officials who were not subject to the forced transfers outside of Phnom Penh. “All are part of the crimes charged in this trial,” he asserted.

There followed review of evidence that, despite the victory in taking Phnom Penh, there were no restraints on CPK desire to kill. He reminded the court of soldier executions at Chroy Changra Bridge. According to one witness, after the CPK closed Phnom Penh following the evacuations, water supplies were turned off to flush out Lon Nol soldiers in hiding. In following weeks, those captured were taken to the bridge, executed, and pushed into the river. “Executions were said to be a necessary part of attacking the old social regime,” said Mr. Smith.

Mr. Smith related witness accounts from the book, Cambodia, Year Zero, by Francois Ponchaud to bolster his recounting of pertinent evidence. He also referred to a book by Philip Short, Hotel Monorom (which Short also referred to as a “gathering place for the doomed”) where senior republicans were taken and killed on the grounds. In just a few days following April 17, 1975, “seven or eight hundred politicians, high ranking officials and police officers were killed,” recounted Mr. Smith. Those “sent out to be executed” in the litany of killings included the families of the officials.

In addition, there were known killing sites at Prek Phnov (near Phnom Penh) and elsewhere across Cambodia. Killing methods were reported to include everything from meter-long bamboo clubs to tossing victims into wells. The testimony reviewed was presented as vivid evidence that the killings were carried out in an organized and structured way.

The on-going search for Khmer Republic sympathizers by the CPK

There was a review of evidence from witness testimony, videos, and other trial exhibits regarding the manner in which many of these former officers and officials were reportedly tricked into the circumstances leading to their deaths. “Your honors,” said Mr. Smith, “the deception used by the CPK cadres in inviting former officials and soldiers to attend study sessions or greet the king was a country-wide strategy to lure in these victims in.” He proceeded to introduce examples from executions in the north, northwest, and east.

“Hundreds and up to thousands of former officials were executed in Phnom Penh or elsewhere,” said Mr. Smith. “These killings of Khmer Republic officials did not just arise out of the evacuation of Phnom Penh, but took place in other zones following 17 April, [1975]. This evidence proves that the CPK had a centralized, coordinated policy in existence to persecute and kill Khmer Republic officials throughout the country.”

Smith stated that his in-depth review of the evidence was made in order to demonstrate the consistent and persistent pattern of killings of former officials and soldiers throughout the country. He said, “It would not have been possible for zone commanders to act against or outside the broad policy consensus that had been laid down by the [party] center. You are not dealing with an army that descends into banditry, takes matters into its own hands. You are dealing with an army that was quite small, rigidly controlled. Yes, there were individual cases of looting, but large scale systematic killings of particular groups? I find that inconceivable that that would have happened.”

There followed the mid-morning break. Afterwards, Mr. Smith continued his in-depth review of evidence naming the places and circumstances of executions of Khmer Republic officers and officials, and the role of party central in creating the orders surrounding them. He pointed to authentication of these various orders by former defendant Ieng Sary as he resumed and confirmed by Francois Ponchaud.

“Your honors,” said Smith after showing how the CPK policy to execute continued in full force and effect throughout the CPK period, “the evidence certainly proves that Khmer Republic personnel were killed all over Cambodia, everywhere they could be found.”

Mr. Smith showed a video of Nuon Chea who was, “not under any pressure when he admitted that the top leadership of the Lon Nil regime was ‘liquidated.’ This is a highly damaging admission by him…We submit the video evidence leads you to one and only one conclusion: that the killing of republic officials that took place was carried out pursuant to orders from the party center.”

The matter of Toul Po Chrey

Next the attention of the chamber was moved to review evidence of what was happening in Toul Po Chrey in April, 1975. As Mr. Smith said, this is another event the accused are specifically charged with, in that, he said, “it was not an act of revenge or actions by a rogue CPK leader acting on his own, but an event embedded by a nationwide policy. It was one massacre of many, part of a chain of events ordered by the party center.”

For some time, he then reviewed testimony by three trial witnesses who attempted to explain what they knew about how and why this massacre took place. According to the testimony, “thirty to forty military and civilian trucks carrying Lon Nol persons” who were told they were going to attend a study session went out to the site. Each truck was reported to be holding about 30 people. The trucks came back empty.

“Is there any doubt from his testimony that the truckloads of officials were taken to Toul Po Chrey and killed? The only reasonable conclusion based on the facts is that many hundreds of victims were killed by the CPK that day at Toul Po Chrey,” said Mr. Smith.

Proof of the manner of deaths comes from forensic evidence that Mr., Smith went on to review. According to evidence collected by the Office of Co-Investigating Judges (OCIJ), bodies exhumed were shown to have hands bound and tied together in groups of 15-20 persons, and shot. Even today, more than 35 years later, OCIJ investigators could find bone fragments. There was also a report of a pond full of up to 5,000 corpses. The report that up to 10,000 people were killed at Toul Po Chrey was confirmed upon investigation.

Mr. Smith then showed an eight minute clip from the video “One Day at Toul Po Chrey.”
“The evidence is extensive and enormous,” he said. “In addition you have compelling accounts of these events from cadre units involved in the killings. The evidence also proves the executions at Toul Po Chrey in April, 1975 were committed pursuant to a policy of the CPK leadership that targets former Khmer Republic soldiers and officials.” Mr. Smith also reminded the chamber that Ieng Sary, as a member of the Standing Committee, had stated that there was value to the Committee to do what they had to in order to keep Khmer Republic persons from rising up in revolt and that there was fear among the CPK leadership that remnants from the Lon Nol army might be involved in a rebellion.

Mr. Smith then reiterated his point that, “the killings at Toul Po Chrey were not isolated acts of revenge, or an autonomous warlord who ruled the West side. The executions were the result of decisions made and policies established by the party center leaders.”

He then stated he was ready to move away from the proving of policies and crimes resulting from those policies. His next statements, he said, would move towards the issue of the defendants’ responsibility for them and their individual criminal responsibility for the crimes charged in this trial. He opened this portion of his closing statements with the following lengthy address:

The evidence shows that behind the charm and smile of Pol Pot were the minds of small men who were prepared to do whatever it took to realize their radical vision of their Cambodia. Nuon Chea and Khieu Samphan and their criminal partners were the masters, and the Cambodian population were their slaves. They were dictators who controlled Cambodians through brutal force and fear. Tragically, their act of stripping a population of all its humanity by the abuse of power of a few has not been a first in world history. Totalitarian dictatorships through the ages have used people as tools to gain and maintain absolute power and absolute control. They do so in order that their vision and only their vision can be realized.

Nuon Chea and Khieu Samphan killed for power. They spilt blood for it. They brutalized and dehumanized their own people and kept spilling blood for power. There is nothing beautiful about this blood. It represents agony, anguish, fear, and death. It tells us of victims shot, bludgeoned, tortured, starved, and worked to their death, often in unimaginable pain. It marks the loss of meaning in life. It represents the ever-aching hearts of Cambodians and Cambodian parents who never saw their children grow, the ever-aching hearts of Cambodians whose mothers, fathers, husbands, wives, boyfriends, girlfriends, brothers and sisters never came home. This blood they spilt also represents the ugliness, the obscenity, and inhumanity of the act of killing another human being. It represents the work of the killers, the young men ordered to kill their neighbors, the blindfolding of victims, the tying up of their hands, the digging of pits, the beating of bodies, the smashing of skulls, the burying and the cleaning up—the work of butchers, human butchers.

This blood is bad blood and cannot be the standard by which we live. When you torture someone to death, you have to get close enough to your victim to inflict pain, but although that closeness allows you to kill, you also see the eyes of the victim, the fear in the face, and the disbelief as to what is happening. When you prepare a victim for death, you see their eyes. When another human begs you for life, you see their eyes. When you wield a club and hold it over their head, you see their eyes. Seeing a victim’s eyes makes it hard to kill as, if you look close enough, you see yourself, you see your own humanity in their eyes.

Nuon Chea and Khieu Samphan chose not to see the eyes of their victims. They chose not to see their own humanity. This made it easier for them, more humane for them, by urging, persuading and ordering others to do the work of killing. If they saw their victims eyes, they might not have dug the pit, so they got others to do the work, their very dirty work. They contracted out the inhumanity of their work so they could feel more humane, all for their vision, their unrelenting, unforgiving vision of creating a society that they wanted. They used Cambodians to kill Cambodians, Khmer to kill Khmer. They played with Cambodian minds and bodies, like pawns on a chessboard, causing many to kill and millions to die. Whether you would kill or be killed, they would decide.

Following this statement, Mr. Smith underscored his point by showing another video telling one man’s story of killing a tailor woman and his confusion as to why he had to do that. Regarding his choice to air the video, Mr. Smith said it was to remind us of our loss of humanity, and to ask us to wonder where the blame for these killings should really lie. “The blame for the death of that young girl lies with Nuon Chea and Khieu Samphan and the other CPK Party Center leaders.” Although this trial only charges them with the killing of the forced transfers and the killings at Tuol Po Chey, he added, “what is clear is that for killings and inhumane treatment, they are to be blamed through their policies, orders, and indoctrinations. Without their plans, that girl and millions like her could be alive today.”

A review of legal responsibility for criminal acts

Next, Mr. Smith moved toward a review of the evidence as to why Nuon Chea and Khieu Samphan are legally responsible for the crimes charged in the indictment. It is necessary to understand how they participated and agreed to the policies of the CPK, their roles in the CPK, and how they individually contributed to these criminal acts. His commentary traversed three levels:

• Collective leadership, guiding principles, and structure;
• The roles and character of the accused, and;
• Their contribution to the policies of the CPK.

Evidence heard over the past two years, said Mr. Smith, shows that this group lived and worked and made decisions together on a collective basis. “They exercised complete totalitarian control over all of Kampuchea. Each place reported to the party center who controlled everything.”

At this point, Mr. Smith reminded the court that in his testimony, Mr. Samphan had once accused the court of making up the term “party center” and showed a video of the defendant making that claim in which he claims a distinction between the two terms “central party” versus “standing party.” Mr. Smith then spent some time offering evidence that, in his words, “it is Khieu Samphan who has attempted to deceive the court. There are numerous references to the term.” There following numerous examples to make the point.

To return to his demonstration of the nature of the party center, Mr. Smith showed how Khieu Samphan was one of few CPK leaders allowed to be at the side of defendant Nuon Chea as well as Pol Pot. These top leaders were constantly close during the war years 1972-1975, said Mr. Smith—yet on May 30, 2013, he reviewed how Khieu Samphan denied he was a leader of the DK regime and claimed that he joined them “by accident.” Mr. Smith then chronicled Khieu Samphan’s arrival into the party in 1967 and how he “stayed with the Khmer Rouge and willingly served as one of its top leaders and the public face of the party for nearly 30 years, defending the policies and advancing its agenda.”

Mr, Smith continued, “Throughout my closing argument, I will address the lies & deception of the accused we have seen during this trial because their lies speak volumes about their true character.” Mr. Smith also pointed out that neither defendant has yet chosen to have their stories tested by speaking to the court.

At this point, the court adjourned for the lunch break.

Upon resuming, Mr. Smith stated that his afternoon comments would center on the issue of how power was organized and used by the leadership in order to help understand the authority, structure, and reporting system for the control of power.

The close working relationships of the defendants examined

Mr. Smith then entered a lengthy description of the “pre-1975 story” of Pol Pot, Nuon Chea and Khieu Samphan, looking at the facts of the evidence that he said proved the close working relationship of the three men. He spoke of how Nuon Chea and Pol Pot met in 1955 and by 1960 were top leaders in the movement, and how Nuon Chea and Khieu Samphan were schoolmates in the 1950s. By September, 1970, the three men began to live and work together at party headquarters. They continued to be in close proximity no matter where they lived for the next 28 years, according to Mr. Smith.

The court was reminded of a bodyguard’s testimony about the daily routine of these men, that they ate breakfast together, worked, lunched, and worked again before going off to their separate dinners. Their offices were located together. As the public face for the Khmer Rouge, Samphan issued public statements on behalf of the resistance, and Mr. Smith showed film footage of Samphan being received by Mao in China in 1975.

Mr. Smith continued with review of the evidence proving the close relationship between Pot, Chea, and Samphan as it continued in 1974 and 1975 while the CPK prepared its attacks on Phnom Penh. It demonstrated how all three were present at the CPK forward bases immediately before and after the capture of Phnom Penh.

Available to the CPK forces in all areas was a network of radio and telegraph communication, according to the evidence. Mr. Smith showed in numerous testimonials how field divisions received their orders by radio. “Everyone had radios,” said Mr. Smith. “The troops were commanded by the CPK leaders, and they [the CPK leaders] were aware of and controlled all key activities of those troops. Do not be fooled by their assertions otherwise.”

Once the party leaders moved in Phnom Penh, they continued the same proximal working relationship, all living close to one another, first at the Silver Pagoda and, later in 1975, at K1 and K3, their new offices and residences. Mr. Smith notes that all three continued to work together on a daily basis with the other members of the party center for the remainder of the CPK regime.

Mr. Smith then showed several videos of the three men to underscore the daily interactions and daily life, in support of his comments. There was “nothing separate,” said Khieu Samphan in one video, having been asked about daily interactions among the three men. Mr. Smith noted that only one witness in the entire two-year trial sought to say these leaders did not live together, and that witness was Khieu Samphan’s wife, So Socheat. Her testimony, said Mr. Smith, is inconsistent with the testimony of the rest of the witnesses and lacks credibility. The court must reject this testimony, he argued.

There followed more historical review through Dec. 29, 1998 when the defendants arrived into custody after surrendering showing the on-going loyalty and closeness of the men.

“Given their relationship as members of the inner circle,” said Mr. Smith, “Khieu Samphan and Nuon Chea clearly know each other very well, which brings me to another of the big lies we have heard in his trial. Despite working side by side with Khieu Samphan from 1970-1998, Nuon Chea claimed to know nothing of the man.” He noted other claims by both men that he said were refuted by the evidence. Smith said he believes Chea is trying to protect his longtime friend and brother in arms from prosecution.

The decision-making process in the CPK

Mr. Smith then moved into discussion about the collective nature of decision-making in the CPK. That decisions were not the work of one person is an important point because it disallows finger-pointing by any party, he asserted. Indeed, he said, both Nuon Chea and Khieu Samphan corroborated this assertion in testimony. Chea is reported to have described how decisions were made collectively, and that unanimous agreement was a core principle to the CPK. Samphan, too, has also acknowledged the unanimous nature of decision-making, saying at one point that “if there had been a single voice against the evacuations, there could have been no evacuations.”

After a short break, Mr. Smith continued with a review of the party’s “Principle of Democratic Centralism” and how decisions were made in the CPK. He said that reporting rules (both up and down the chain of command) asserted in the Revolutionary Flag in 1972 were that all plans had to be proposed by the collective in accordance with the principles of collectivism. A November, 1976 issue of Revolutionary Flag iterated that “when one or two persons or one committee lead, every aspect of every matter is not seen.” As participating members of the party center for CPK and integral to establishing its policies and plans, both Chea and Kamphan, said Mr. Smith, had expressed their agreement with Pol Pot and the decisions that they made.

There followed six videos displayed by the prosecution showing the loyalty of both Chea and Kamphan to Pol Pot, and supporting the decisions that were made. In one video, Samphan asserts he will shout out what a great leader Pol Pot was at the trial, to which Mr. Smith made the wry comment that Samphan certainly has not done any shouting in the trial so far.

The question of who, really, holds criminal responsibility

At the heart of the matter of who held power, Mr. Smith recounted Chea’s assertion of the principle of democratic centralism, and to deny that Pol Pot had a monopoly over power.
Thus there remains the question of criminal responsibility with regards to the reporting structure of the DK period. Mr. Smith offered a lengthy description of how party central leaders got regular reports from the zones and military units. There remain claims by the accused that they were unaware of the situation throughout Cambodia, and that zones acted autonomously. Mr. Smith suggested this is a gross distortion of the truth. CPK cadres were responsible for extensive reporting to party leaders both before and after 17April, 1975. There was an organized system of reporting beginning from at least 1973, with telegrams going both ways. Telegram instructions included things like what to attack and requests for ammunition. Communication was said to be frequent and detailed.

The goal of good reports, as described by Mr. Smith, was “to insure country-wide unity of the party line.” The party center had effective control of the zone military divisions and the ability to reach all units. System of reporting to upper echelon included a weekly regime of reporting from all the zones.

Mr. Smith offered abundant review of the evidence that Samphan was consistently receiving all telegrams and reports, and these were regularly discussed among the members of the party center. Mr. Smith’s exhaustive presentation of communications (especially the system of telegrams) sought to show a high level of communication between the zones and the central office. Evidence was presented of detailed scrutiny and oversight of every matter (even including a report of the knocking over a kerosene lamp on a boat) that was reported to the leadership. In fact, said Mr. Smith, party center typically got one telegram per day from each region, bolstered by weekly and monthly reports describing in detail the situation in every area of the country, including information on the enemy situation in each sector and region of the zone, rice production food supplies, and the health of the people.

In other words, said Mr. Smith, the defendants must be hard-pressed to assert that information was not forthcoming from the field. It was abundantly available, in keeping with the basic authority structure of the CPK as defined in the party statute. Clearly, said Mr. Smith, party center had authority over the decisions made.

Proceedings for the day ended at 4:00 p.m. Closing statements for the prosecution are set to resume on Monday, October 21, 2013 at 9:00 a.m.