Defense Cites Historical Context and Evidentiary Inconsistencies During Final Closing Statements
The day’s agenda consisted of the second day for the defense team for Khieu Samphan’s closing statements in Case 002/01. For the first 35 minutes, national co-lawyer Kong Sam Onn continued his theme from Friday: Speaking about the character and background of his client.
Samphan’s intellectual pedigree prevented a powerful role in the CPK
Although Khieu Samphan had a senior position in the Communist Party of Kampuchea (CPK), he never had any effective power, according to the testimony of many witnesses, said Mr. Sam Onn. Power in the party was possible only by meeting the necessary criteria for admission, which Khieu Samphan was unable to do. Without appropriate combat experience, “tempering” and probation, according to Khieu Samphan, he was ineligible to ever be a “hardcore member of the party.” In essence, he said, his pedigree was insufficient since he was not from a peasant background.
Nonetheless, Pol Pot came to consider Khieu Samphan the “deputy intellectual” in the CPK. It was a non-decision-making position, according to KS, a fact supported by the expert witness testimony of Philip Short and others. Mr. Sam Onn asserted that Khieu Samphan received his position because of his popularity; a trait the CPK perceived could be used to attract attention from others. It was his charisma that allowed Khieu Samphan to hold this extraordinary position that Pol Pot wanted nobody but him to hold. But, again, it was a role confined merely to protocol, and was powerless.
Said Mr. Sam Onn, “It is abundantly clear that Mr. Khieu Samphan is person of gentle personality, he loved peace, he loved development. He wanted to bring back the welfare and development to his country.” He reviewed the years when Khieu Samphan lived a solitary lifestyle in the country between 1970 and 1975. Mr. Sam Onn reviewed the alliance of Pol Pot and Sihanouk, who was at that time in China, when Pol Pot realized he could take advantage of the prince’s popularity in the revolutionary movement and that Khieu Samphan would be the right person to be the point of contact for Sihanouk.
When he received news of the appointment, Khieu Samphan said in his testimony before the court in 2011 that, “I received the position as Deputy Prime Minister of Nothing, Minister of National Defense of Nothing, and Commander in Chief of Nothing. As a matter of fact, I had no power or influence, even the slightest on the army.”
He went on to say, “On the contrary, I sacrificed my personal self-esteem and reputation in order to fulfill my obligation and duty for my motherland which was on the verge of collapse.”
The Cold War and other wider context issues reviewed
Mr. Sam Onn went on to review in some detail the historical context of what transpired after the coup d’etat in Cambodia, including the spillover of the superpowers’ war in Vietnam onto Cambodian territory. He described the war from 1970-1975 as “a regional war, not a civil war per se” stemming back as far as the 1967 bombardment and then amplifying into the Vietnam War and then the war in Indochina. All were of an international nature, fueled by Cold War ideology. He mentioned the devastating American bombardment and how it intensified in 1973. He also reviewed how the U.S. government supported the Lon Nol government’s efforts to dismantle the Khmer Rogue forces.
Eventually, Cambodia came under attack as well from an invasion by communist Vietnamese military, and, said Sam Onn, Khieu Samphan was moved to accept his position in the hopes of helping to defend Cambodian national independence and territorial integrity. He said that Khieu Samphan was willing to be the “representative and bridge” between Sihanouk (who was still in Beijing at the time) and the CPK to unite their forces in order to salvage Cambodia. Even though he viewed it to be “shameful to receive the position of nothing,” Khieu Samphan stepped forward, said Mr. Sam Onn, to hold such a “gigantic position” in the resistance forces. He was considered a “corruptless” person, a loyal and honest person whose reputation was a positive point, able of reconciling Cambodian leaders at that time. Mr. Sun Onn cited many testimonials of Khieu Samphan’s character in underscoring this point.
Khieu Samphan found himself appointed Commander in Chief of the National United Front of Kampuchea (FUNK), as well as Deputy Prime Minister and Defense Minister for the Royal Government of the National Union of Kampuchea (GRUNK)—but both were, according to Mr. Sam Onn, “nominal positions.” These appointments did, however, have the benefit of allowing him to become a candidate member for the CPK’s Central Committee. After Sihanouk resigned, Khieu Samphan was named to be President of the State Presidium, and became a full-rights member of the CPK Central Committee in March 1976. “It was purely a strategic appointment,” asserted Mr. Sam Onn, one without political or military responsibility. Cambodian and foreign people alike supported him. But the effective power was in the hands of the CPK’s Standing Committee. Basically, Khieu Samphan was trusted by Pol Pot because he was receptive and accepted orders when he was told to do something. As Mr. Sam Onn said, only Pol Pot and chief of staff Son Sen were in charge of military decisions.
Khieu Samphan was not in the military and should be acquitted, says Sam Onn
All of this to underscore for the sake of the Trial Chamber that “this issue has nothing to do with Mr. Khieu Samphan because Khieu Samphan was not in the military,” according to Mr. Sam Onn, He was an “ordinary person,” and “intellectual outside party ranks,” and someone who “did not participate in the core forces of the CPK” according to various testimony. Even his training sessions conducted in the forest (according to witness Phy Phuon) spoke of the need to garner forces and of the importance of a national front, in an effort to unite national forces across the country to strengthen FUNK, said Mr. Sam Onn.
Mr. Sam Onn concluded his statements by asserting that “Khieu Samphan has been painted as the devil, but actually Mr. Khieu Samphan was a clean, honest person and I hope for this Chamber to find the fact behind this, and that you will bring justice for Mr. Khieu Samphan. And the justice for Mr. Khieu Samphan is that he is released and acquitted.”
At 9:35 a.m., Mr. Sam Onn yielded the floor to his colleague, International Co-Lawyer Arthur Vercken, who spoke for nearly two hours (with the mid-morning break intervening) regarding the diplomatic efforts of the early Democratic Kampuchea (DK) years, and Khieu Samphan’s actual roles in the CPK.
Diplomatic relations and the iron curtain across Cambodia
He began first with the theory behind the prosecution’s description of 17 April 1975, as the date when an iron curtain fell across Cambodia (“they are rather fond of this kind of metaphor,” he said snidely of the prosecution’s choice of word).
“It’s as if, after living 10 years in trees and makeshift camps in the jungle,” said Mr. Vercken, “Pol Pot suddenly came out of his lair along with his old classmates and his shoeless freedom fighters, and in a few hours transformed an entire nation into a hyper-centralized territory, hyper-organized, a unified army obeying its orders, fully operational officials, highly developed communication technologies that were effective and worked well. We would plead that this whole vision is extremely simplistic, and no sensible person can really believe in it. Rome wasn’t built in a day. It’s clear that zones that had been already liberated in Cambodia functioned without Pol Pot for quite a long time, and they were led by people who had no doubts about their own leadership qualities.”
Continued Vercken, “this whole theory about the ‘Iron Curtain’ is also mistaken from a diplomatic standpoint.” He then presented abundant information about the CPK’s efforts to build relations with friendly communist and non-aligned countries. There followed an extensive list of visiting delegations from foreign nations to Democratic Kampuchea between 1975 through 1979. Indeed, he said, Sihanouk himself continued to receive diplomatic delegations (in China) in his capacity as president of the presidium until March 1976.
He held up evidence such as minutes of the Standing Committee (including the barb of “if they are authentic”), to show that diplomatic relations were not non-existent in DK. His purpose in stressing these diplomatic efforts because, he said, for Khieu Samphan, it was a diplomatic reality for him. Mr. Vercken added that any impression that Cambodia went into the “wrong” side in the Cold War, the “red side” is interesting; “The prosecution cannot accept this,” he said. “As far as they’re concerned, as soon as a country refuses to align itself or shuns aid from the United States, that proves that it has diabolical intent with China and the USSR.”
The DK regime did not, in fact, refuse all assistance, asserted Vercken. It did not, as the prosecution wants the court to believe, “enclose itself into a criminal self-sufficiency.” Evidence Vercken offered included a look at the Standing Committee minutes, which show numerous references to aid from abroad. China helped start factories and revamp the railroad and telephone lines. There was a $3 million grant from Yugoslavia for antiviral drugs and serums. Assistance came from China for rice, and the Swedish government sent a grant of $5 million and the Yugoslavian government another for $4 million, both for purchasing materials and medicines for the population.
“If you take these examples, what is happening here is that the countries whose aid is accepted are not countries the prosecutors would like them to be,” maintained Vercken. “That is why we would like to dwell on the enormous importance of the context of the Cold War, because if you forget the basic circumstance of this silent global conflict, you don’t understand the entire case file.” This, he said, in response to the Investigating Judges and Prosecutors who appear to be asking the chamber to judge these accused for having wanted to set up a communist regime in DK. At least, he said, the investigating judges “at least had the intellectual honesty to concede that the DK policies weren’t ‘entirely criminal’. The new theory by the prosecution about the nationwide slave camp does show to what extent the way this file is being handled, which is often more political than legal.” He proceeds to examine a “feeble line of reasoning” related to varying viewpoints by different parties in the chamber. And how do these topics prove Khieu Samphan contributions to the forced evacuations and Tuol Po Chrey? “In fact,” he says, “they prove nothing at all.”
Drowning in misapplied evidence calculated to confuse
Mr. Vercken then cautioned the judges “You should not validate and be careful to date the descriptions made to you by the prosecutors.” Dates, he said, matter in terms of discovering intent on the part of Khieu Samphan, and should be assessed and appreciated on the basis of fact, “not hypothetical reasoning on subsequent events not established in fact.” He followed with examples from the minutes document about increasing workforce in the northwest, which marked the beginning of the second population movement. At that time (August or September, 1975), It had been four months since the first population movement and Tuol Po Chrey. Khieu Samphan was known to be on a diplomatic trip abroad. By that time two of the three facts of the case had been decided and implemented, and as for the third fact, it was well known that Khieu Samphan didn’t participate because he was abroad.”
At this point, Mr. Vercken made a side comment regarding the adeptness of the prosecutors at turning events to their own advantage and expanding the scope of the trial. Naming several topics, Vercken then points out that they are all were peripheral since they came after the events named in the case. Yet, he said, “that is why we denounce the prosecution strategy, which is to drown us in a massive heap of documents with 2,900 footnotes that themselves refer to between 10 and 15 thousand documents, simply drowning us in a massive avalanche of documents.”
For example, he said, there are the minutes of the Standing Committee, which met often during the regime. Although everyone confirms Khieu Samphan wasn’t a member of the Standing Committee, Vercken referred to the prosecution’s method of proving that Khieu Samphan appears to have attended 86 percent of the meetings. “The truth behind this manipulation, the most elementary logic,” said Vercken, was that Khieu Samphan participated in four percent of the Standing Committee meetings during the regime. He went on to detail what was allegedly said at meetings and the prosecutors’ effort to tie Khieu Samphan to the topics at hand, even though he never did become a member of the Standing Committee.
“From these different facts one is inclined not to look at the prosecution’s arguments in the same way,” he complained. “If our ideas seem disconnected, it is because we are trying to respond to a prosecution thesis that is equally disjointed. That is not the fault of the defendant. Khieu Samphan has waited behind bars for five years, and at age 82 he has the right to expect a conclusion,” adding that he believes the prosecution’s case is “well short of being ‘beyond a reasonable doubt’.” In addition, Vercken accused the prosecution not only of consistently extending their statements well beyond the scope of the trial, but also simply creating a caricature of his client, and provided examples to support his claim.
Back to Tuol Po Chrey and the prosecution’s “jumble” of facts
Mr. Vercken then returned to the facts underlying the events at Tuol Po Chrey, where, he said not a single witness saw a single murder. Witnesses were 10-15 km from the venue, and the testimony was all second-hand and often inconsistent. In essence, he said, a lack of probative evidence exists, and no expert opinions were given; the judges should not rely on statements of individuals who did not even attend those meetings. Thus, he said, the prosecution has not shown proof of the essence of what happened at Tuol Po Chrey.
Mr. Vercken contested other evidence held up by the prosecution that he argued cast doubt on whether the massacre was ordered by the Khmer Rouge. Evidence was inconsistent regarding various details of the events at Tuol Po Chrey. He gave specific details and said that people at the meetings – “on all these issues contradicted one another” and the lack of probative evidence means “we cannot rely on the statements given by the individuals.” The prosecution has not shown adequate evidence, he said in various ways over and over, calling them “leaps of error” occurring on several levels. They did not prove implementation of the policy to kill Lon Nol soldiers.
Mr. Vercken then cited a French poet fond of lists, and in his spirit listed thirteen points as a partial list of examples where the prosecution’s use of evidence was questionable. “I am wondering how many hours and pages I would need to respond to this crossfire of arguments that are completely unfounded,” he said “The problem is this strategy to stifle reflection constrains at all levels. It is exactly the same strategy we have observed with the issues regarding population movements phases one and two. We are dealing with facts that have absolutely nothing to do with the trial.”
He then attempts to elucidate what seems important in this “jumble”. He uses the absence of telegrams to show lack of evidence. He challenged the prosecutors to “come back with a single telegram of this period regarding Tuol Po Chrey or the periods up to it informing Khieu Samphan about these murders or seeking his opinion or seeking to consult him. You have not a single telegram to that effect,” said Vercken. He goes on to reassert that the prosecution cannot make inferences without providing evidence.
Lastly, he said, he wanted to speak to radio communiqués signed by Khieu Samphan and adopted after a vote of the national GRUNK congress, which occurred in February1975 while the war against the Lon Nol regime was raging. That communiqué, according to the prosecution, was the stamp of agreement regarding the massacres at TPC, which the prosecution hasn’t established. He then read an excerpt from the communiqué in which seven traitors are named for execution, and includes the sentiment that other low- or high-ranking officials (etc.) would have the full right to join the FUNK.
At this point, Mr. Vercken had begun to speak such that chamber president Nonn was moved to ask him to slow down. Mr. Vercken, with a more measured pace, went on to say that evidence from a number of witnesses he could cite showed that his client was most likely not consulted before the communiqué was broadcast (even though he signed it), and that “nothing stated in it is particularly unusual in wartime.”
The use of propaganda, and what does it really mean for this trial?
The mid-morning break ensued. Afterwards, Mr. Vercken continued by reading a resounding denunciation made by Prince Sihanouk a few weeks after the broadcast mentioned just before the break. This speech included language referring to “American imperialists and their lackeys” in Phnom Penh and referenced Khmer Republic officials as being “world champions in treason, moral depravity, social decay, and corruption” as well as saying how the Cambodian people will “eradicate them from our society because that is what they deserve.” He then cited other communiqués, and finally asked, “Who were propaganda messages meant for?”
As a political war, suggested Vercken, the messages were not for Khmer Rouge soldiers. They were addressed, he suggested, to the Phnom Penh population. Regardless, they do not constitute proof of intent by Khieu Samphan to be part of a systemized attack against former officials of the Khmer Republic.
To trace the policy of aggression, Mr. Vercken once again took listeners back to the historical context behind the events in question, and, more importantly, quoted prosecution statements about the contextual history dating as far back as the 1960s in a lengthy fashion. He reviewed the prosecution’s reports of torture and extra-judiciary execution, including quotes, and purges of returning solders from Hanoi in 1972. Then, he quoted the prosecution as saying, “Khieu Samphan could not not have known what happened.” Mr. Vercken’s reply: “Our opinion is that the prosecution’s reasoning is irrational. The Khmer Rouge was a popular resistance movement. That was the circumstance of the time… Who here denies the historical reality of the time?”
Mr. Vercken then revisited again the horrors of those years, including the situation faced by the population under Prince Sihanouk, and under Lon Nol. He referred to Sihanouk’s regime as being “far from a peaceful and democratic regime. It was a brutal regime.” The Lon Nol regime, likewise, was described as corrupt and extremely violent, involved in such things as dropping bombs on unarmed demonstrators. He quoted Philip Short, who said, “For people, the only way to save themselves was to go join the Khmer Rouge soldiers.” He remembered how the Lon Nol army was reported as being badly trained, badly armed, and badly led (“barbaric,” according to David Chandler, who said the Khmer Rouge soldiers, by contrast, were “much more disciplined, with an almost Buddhist code of conduct. That is what made them popular.”). This was confirmed by Father Ponchaud, who said the Khmer Rouge were “good, kind people who assisted the population in the rice fields.”
In essence, concluded Mr. Vercken, after more examples were stated, “the prosecution is blind to history, blind to the context of this trial.” Referring to an article in the Revolutionary Flag, regarding the history of the CPK, he said, “When you read that article, you realize how difficult it is to suggest that the communist party is wedded to violence.” It was a resistance movement that emanated from the peasantry. The class-consciousness came to them through the struggle, through the anger. It was fighting oppression, he said, even though the prosecution would rather people ignore those ideas in favor of a “fictitious narrative whereby anybody who looks closely at the dossier simply cannot subscribe to it. We therefore ask you to reject that notion of things.”
Mr. Vercken was abruptly finished with his statement, and with a curt, “I thank you, sirs,” he yielded the floor at 11:25 a.m. to his colleague Anta Guisse.
For the 25 minutes before the lunch break, Ms. Guisse warmed to her subject, which consisted of examining the variations in the evidence offered by the prosecution regarding the population movements and the role of Khieu Samphan regarding them.
Conflicting and confusing and contradictory evidence cited
Ms. Guisse talked about the evacuation of Phnom Penh & Khieu Samphan’s role regarding it. She contested the evidence, showing how no contemporary document states what date the first population movement (the evacuation of Phnom Penh) was decided. She went into considerable details outlining the several dates suggested by varying evidence. Besides, she asserted, Khieu Samphan wasn’t there anyhow; being an intellectual he was “managed” by Pol Pot and no one else.
Ms. Guisse spent time particularly addressing and questioning the testimony of Phy Phuon. “Just because Phy Phuon was vocal doesn’t mean he was telling the truth,” she suggested, as she went on to demonstrate the lack of clarity in his statements. Phy Phuon was a bodyguard. He himself states, “I did not attend that meeting, because I was mounting guard outside. However, I heard the speeches.” But in 2008 he told the co-investigating judge that he could hear the meeting. Questioned about the contradiction he said, “It is up to you to choose the version you want.”
Saloth Ban, another bodyguard, testified that bodyguards did not stand anywhere near the venue of a meeting. According to some sources, a guard was to stand up to 20 meters away. “On the eve of a major offensive you have to pay attention that what is discussed at a meeting is not open to the public because it would impose risks,” he said.
Soldiers are surprised by “evacuate Phnom Penh” orders, too
Ms. Guisse went on to confirm that Khmer Rouge soldiers were surprised by the decision to evacuate Phnom Penh. She cited evidence from one soldier who said that fifteen days before the offensive (which he thought was just about liberating the city) he knew nothing about an evacuation. She cited others whose testimony backed the question.
If a small number of people were aware of the evacuation, there was no reason to publicize that decision to evacuate the town “
Ms. Guisse cited another witness, Nou Mao, who was not originally on the prosecution’s list for witnesses, but who was summoned in extremis for the basic reason that his name was mentioned next to the word “evacuation” in one document. During testimony, she recalled for the pleasure of the court, this witness contradicted himself at his June 19 hearing. Asked about the plans, he said, “I knew nothing about that. It was impossible for me to know anything about that,” he insisted.
The April, June, and July 1974 travels of Khieu Samphan to China, Romania, Algeria, Laos, and beyond denied prosecutors the chance to tie him to any events at his home base in Cambodia, until he came back to spend time with his wife and their newborn child, argued Ms. Guisse. All testimony, including that of Khieu Samphan himself (“of course,” she remarked wryly, “no one wants to believe us, because each accused is lying”) does not support the prosecutions allegation of his involvement. But evidence tells us he heard about the evacuation on the day of the evacuation itself.”
With that, she said, “Mr. President, your honors. This is the evidence before you regarding the decision to evacuate Phnom Penh. I do not know whether I need to remind you, but it is a fundamental principle in criminal law that when there is a doubt, it is to the benefit of the accused.”
Roles and titles in commerce and education
After the lunch break, Ms. Guisse took the podium once again. The crowd in the gallery today was modest, just 86 in the morning and 95 in the afternoon, and the afternoon group heard still more assertions from the defense about questionable evidence regarding Khieu Samphan’s various roles in the CPK.
Most of his roles, argued Ms. Guisse, were purely nominal. Besides, she said, “Within the framework of the severance order, regarding the period during which the population movements were decided on and put into effect, we are not supposed to go beyond 1976. Or rather, you [indicating the judges] are not supposed to go beyond 1976 in ascertaining the role and Khieu Samphan’s role in contributing to the events.”
Initially I want to review the evidence of his contribution to the policy toward the population moves, Ms. Guisse said. She wondered about a 1982 interview with Khieu Samphan when he purportedly admitted to participating in the collective decision to evacuate Phnom Penh. But her bigger point was that “after 1979, we are not seized of the fact that we know what happened. The end of our file begins when Vietnam stages its invasion and when the war continues after that. In 1982 when Khieu Samphan spoke in public, he was doing so in that context.”
She then referred to Khieu Samphan’s famous (virtual) title as Commander in Chief of the Army. Many witnesses have testified that Khieu Samphan had no military authority and that the title only existed so as to give him a place at the head of the Front. “We have explained the powers of the zone armies & their historical background,” she said. “I shall not come back to the paucity of evidence.”
But what about the element put forward by the prosecutors that Khieu Samphan must have participated in the evacuation because he arrived shortly afterwards? Ms. Guisse looked over the varying evidence regarding the precise dates of his arrival and posited that the situation complicated and that there are different versions to view and review. The leaders arrived when the city was secured and safe. When he wondered why it had been necessary to wait for that, Pol Pot allegedly said to Khieu Samphan, “you intellectuals are all the same; you never have your feet upon the ground.”
Yet, as the party’s token intellectual, Khieu Samphan was responsible for being the front-line figure and had responsibility for radio broadcasts. Among the elements that contributed to the first population movement, there were speeches that precede April 1975. “Yes,” said Ms. Guisse, “when you speak openly and in the middle of a war, you usually talk about the enemy and invite your own troops to win a victory, and you’re glad when they do win.” Indeed, Khieu Samphan was pleased by the triumph of his new leftist regime. “Expressing pleasure that your political ideas have won is not in itself a crime,” said Ms. Guisse.
She went on to deride the prosecution’s presentation about these speeches by suggesting that “it’s not as simple” as the perception that Khieu Samphan was giving an idyllic version of the situation in general. Actually, Khieu Samphan was playing his role as a figurehead, trying to insure that friendly countries would give their support to Democratic Kampuchea. Again, Ms. Guisse revisited the historical context. From 1975-79, during the Cold War, many non-aligned countries wanted to have their own voice and not follow the superpowers. This was not an easy task, but for Khieu Samphan, taking the podium (holding a speech usually written by Pol Pot) was an opportunity to share ideas with friendly countries whose aid and assistance was forthcoming and accepted by Cambodia. The picture he painted was not idyllic, but rather, said Guisse, a presentation of the challenges that had to be met. There was a diplomatic resolve to insure that the country would get the assistance it needed.
Muddled witnesses and confusing detail
Ms. Guisse’s efforts to demonstrate the prosecution’s failures marched on into the day as she turned her attention to the role of Khieu Samphan in education sessions. She accused the prosecution of insuring that evidence was “carefully sidestepped. Not evidence on paper,” she said, “but evidence that emerges once questions have been asked and parties have confronted each other and given testimony. In the evidentiary hearings we did not hear anything to confirm criminal intention or incitement to crime by Khieu Samphan.”
For example, she said, within the framework of the severance order, “(because you cannot decide that tomorrow’s act has a direct incidence on yesterday’s decision), let us address the education sessions.” She recalled two witnesses who were “particularly muddled” but whose testimony is still being allowed to support the notion of Khieu Samphan’s criminal intent. She detailed the testimony of one witness who couldn’t keep Nuon Chea and Khieu Samphan straight, or the various dates of when he was at training sessions. And regarding another, a civil party, Ms. Guisse said, “and when I say muddled I think I should be using a stronger word.” That witness wanted the court to believe he remembered word for word what was said almost 40 years ago, yet was clueless about the date and other relevant details. In essence, she said, the testimony “consistently is lacking in the unfurling of the facts” and the court should not rely on the testimonies.
Ms. Guisse pointed out that, had either muddled witness provided only written statements, their shaky testimony wouldn’t have been caught out. Yet there are thousands of written statements for the judges to consider. She contends that the court would surely find similar statements, like these two, and yet the prosecution maintains that it is all probative evidence.
“Most witnesses came here and said positive things about Khieu Samphan,” she said, “but the prosecution focuses on what is negative. We are asking the chamber to review all that is in the record.”
The question of Office 870
Ms. Guisse then turned her attention to examining the prosecution’s theory regarding the nebulous “Office 870.” Khieu Samphan described that he was part of (but not head of) the DK commerce committee, and described his work in office 870 as related to trade. Yet, claimed Ms. Guisse, the evidence has been distorted to give the impression that he was head of the commerce dept.
“We argue he played a technical role in the commerce department,” she said. Khieu Samphan was not at the “very heart” of things, as alleged by the prosecution, If he had been he would have had a place on the Standing Committee, she asserts. But, she says, the prosecution has evaded this. “They want us to believe he was at the heart of power.”
To review the historical contest, yet again, she reminded the court that in Apri1, 1975, the main issue was to revamp the economy. A trade policy was needed, but unfortunately there weren’t many people in a position to play a technical role. She reminded the court of her prior discussion about foreign aid promised and received by the DK regime, but within the government here in Cambodia, the Standing Committee made decisions. The named ministries existed on paper, but they didn’t have an organizational chart. Powers were taken by the Standing Committee, and the ministries basically served as conveyor belts to pass on the decisions of the Standing Committee.
Thus, Khieu Samphan was appointed to the commerce ministry and charged with examining banking problems (even though banking activity in DK was almost nonexistent). He was also appointed to be President of the State Presidium, but Vorn Vet was really in charge there. He may have had offices at 870, but, said Ms. Guisse, “We can see that Khieu Samphan was not president of 870. All he had to do was provide technical support.” This finding was corroborated by witnesses that she proceeded to cite in detail.
On amalgamation of documents and linking Khieu Samphan to anything
Ms. Guisse then accused the prosecution of trying to create key documents out of an amalgamation of trade documents. The only letters addressed solely to Khieu Samphan were regarding technical and purchasing matters. All the evidence substantiates this, according to Ms. Guisse. In more delicate areas (referring to more secret docs or to more weighty themes in terms of management), issues for Angkar were not addressed by Khieu Samphan but by someone else. “It all suggests direct management by the party and yet the prosecutors ask you to amalgamate ideas despite declaring that this should not be done,” she said.
After a 20-minute break, the court reconvened for the defense’s final closing statements.
The opening salvo from Ms. Guisse questioned why the prosecution insisted on trying to link Khieu Samphan to documents when there is nothing to link him. “It was meant to pull the wool over your eyes,” she asserted, “as if they did not know things were very carefully compartmentalized during DK. It is why the prosecution wanted the court to believe Khieu Samphan was head of the Commerce Committee, whereas the documents show a different situation.” She then cited documents from the Ministry of Commerce on which Khieu Samphan’s name does not appear.
She went on to demonstrate “the extrapolation, the distortion that prosecution is unfortunately engaging in” by holding up testimony from Sakim Lmut. As a key witness for the prosecution regarding the Ministry of Commerce, this witness told the chamber that he did not meet Khieu Samphan when he was Deputy Director of the Bank of Commerce. She further pushed the memory of the testimony with examples of what she referred to as distortion. She then gave an example of Sakim Lmut meeting with others (Vann Rith and Kham Phan) but not Khieu Samphan.
However, we have witnesses to corroborate Khieu Samphan statements, such as the decoder of telegraph messages, Norng Sophang. He shows that communications addressed to Khieu Samphan never had anything to do with security, just about supplies, material, or equipment. Or, when a Head of State came, Khieu Samphan received those foreign dignitaries. But more it was about directing trade materials. Nang Sophang also confirmed the management of food deliveries by Khieu Samphan. “That was Khieu Samphan’s work, apart from representing the state as President of the State Presidium,” said Ms. Guisse, as part of deeper detail she offered in the course of covering this topic. Throughout 1975 to 1979, the messages from Khieu Samphan had solely had to do with equipment and goods.
Ms. Guisse pressed the issue in her review of Norng Sophang’s testimony when he was asked whether communications to or from Khieu Samphan ever had to do with security matters or arrests of persons or any other kind of security matters in his sector or region. His answer: “No.” Khieu Samphan had nothing to do with security. Regarding exports, said Ms. Guisse, “Here again we are in the context of Cambodia during a war period. It was important to know how to obtain foreign currency and materials, and that is why we had to export things.”
“There was no intention on the part of Khieu Samphan,” she said, “to famish the people.” In one situation she cites, Khieu Samphan discovered that salt and mosquito nets had not been distributed to the people due them, apparently because of communication problems. “Conditions were not ideal at the time, they were extremely difficult, but he did his best.”
Returning to Office 870
Ms. Guisse continued on as time pressures to finish began to mount. She wanted to return to the subject of Office 870, since the prosecution in its closing brief claimed Khieu Samphan was the head of it.
“We do not know what 870 means. It was a nebulous organization with many branches, and the prosecution is trying to confuse matters,” she said. “There’s something that doesn’t tally with the activities of these organizations.”
In her discussions with different witnesses, she recalled, one said his sources for information about Office 870 were “top secret.” It remained unclear in her follow-through who was in charge of office 870. One bit of evidence from Saloth Ban indicated that both Khieu Samphan and a man named Pang held duties in 870 that were more like “assisting” than being responsible for anything, since, he said, responsibility is related to politics. From the testimony of Norng Sophang, the chief of the telegram office, telegrams about the economy were from 870.
“When we try to link what the different witnesses said and the description of Khieu Samphan’s activities,” said Ms. Guisse, “everyone corroborates what he said, that work with 870 was regarding his duties in commerce and purchase of supplies and goods, and I was also involved in exports and distribution of supplies at the base. Period.”
But why, she asked, is it so important for the prosecution to establish a link between Khieu Samphan and office 870? Why, in spite of the evidence we have on 870 and the technical assistance report? She conjectured that it was an “attempt by the prosecution to find a link to say he knew all that was happening in terms of security and arrests. And that is why the prosecution, in spite of the confusion, and in spite of the reality of the descriptions, went for it and said he was head of office 870 because they needed that link and to hold him criminally responsible for what happened throughout DK. But the fact is, it doesn’t tally to reality.”
In conclusion, some overarching thoughts by the defense
Another point can be found in all of the statements Mr. Khieu Samphan made later, the defense argued. What he is not forgiven for is that loyalty, perhaps a little surprising, towards Pol Pot, she said. “When I see the videos of Khieu Samphan in his jungle lodge where he lived for so long in exile and where he is saying, yes, he did admire a man who managed to bring revolution to the peasantry,” said Ms. Guisse:
And if you put that in parallel with the ideals that Khieu Samphan had, what he put across in the education sessions, what he said about change, what he defended during this period, you can see the problem is not so much denying what happened between 1975 and 1979. The problem is understanding that it was not what he was fighting for, not what he wanted. And when, on the other side of the room, people say, ‘but wait a minute, he stayed beyond 1979,’ to the extent he went back to civilian life after the death of Pol Pot and on the prosecution’s side a parallel was drawn with Sihanouk and let me make a parallel there was a coalition Sihanouk belonged to and despite the cold feelings he had toward Pol Pot, he nonetheless accepted that alliance. Why? Because at that time his country was under attack and he was thinking first of his country, maybe as well as his own power, but also his country. When Khieu Samphan writes the sacred vision of independence of Cambodia is something he has always fought for, not to reduce his people to slavery, not to attack the civilian population, but to try and improve life in a situation that he believed to be critical for his country, there you can see someone who is ready to make every sacrifice.
For years he read and read. He also wrote as well…This is a man who is desperately trying to understand why what he believed in did not work. Is this someone who knows everything? No, I think this is someone who is looking for answers. Certainly, it may have been much easier for him to be able to say yes they wanted commit crimes and that was precisely their intention, but he has his own truth that he lived through, and that truth can be expressed by saying that the aim was not to make Cambodia suffer. The point was to take the country forward. It was not a success. They weren’t starting off with a very easy situation. They were disorganized. They may have been incompetent, but they did not have criminal intent. And that in a criminal trial is what matters.
Ms. Guisse then described what Khieu Samphan wrote in his book A History of Cambodia regarding his duty to support all national forces of Cambodia in order to provide a small contribution to bring it out of the past it was stuck in. “That is precisely what I did within the limitations of my abilities,” wrote Khieu Samphan.
Ms. Guisse continues to quote her client, saying “I have always been a simple intellectual who had a dream to fulfill my duty towards the country…My only concern was not to forsake my duty…” As he wrote to his compatriots, he asked their forgiveness and to pardon his naiveté. “I thought I was doing my duty for the survival and prosperity of the nation and I was unable to imagine it could lead to such killings.”
The defense calls for acquittal, and rests its case
Ms. Guisse then addressed the bench directly, saying:
This is the man you are called upon to judge today, this person who has to be judged within all respect for the rules, procedures, and bearing in mind that the decisions you yourself took when you made a severance order. That, Mr. President and Your Honors is the person who as I said at the start is now physically alone on the defense bench. He represents a period which has gone by, but which people remember. He represents ideals that doubtless have since been betrayed. He represents weaknesses, too. The failure for having taken the true measure of things in more recent years. He is also the person who you have presented as a diabolical figure but in fact did not believe all of the things he is accused of.
We are in a court of law here, and JCE as the prosecution is claiming applies here does not, in fact, hold water. It does not apply, quite simply. Let me remind you of what the defense has said in its closing submission and our conclusions under the applicable law. In accordance with the case law, there is a distinction to be drawn between the ultimate objective and the criminal objective itself. You cannot err, or deduce criminal participation in JCE in this way [and she listed in exhaustive detail the accusations]. Do you have any possible way of proving criminal participation in this enterprise? The answer is no, and because the answer is no, you have to acquit, Mr. President, Your Honors, the accused. Despite the pain that we heard from the voices of the civil parties, despite the pressure of international opinion, you have to acquit. Despite the fact that everybody thinks everything has been played out already, you are judges. You have a duty vis a vis the law and a duty vis a vis procedure to be independent in your judgment. Is this a duty you are going to fulfill? Only you, your honors, will be able to answer that question when you come to deliberate. And please, do recall that all of the motivation behind your deliberations will be read most carefully afterwards.
Housekeeping details for Wednesday’s rebuttals by civil parties and prosecutors
Chamber president Nonn announced that this concluded the closing statements by the defense for Khieu Samphan. Before adjournment, he requested the lead co-lawyers for the civil parties and prosecution to state their needs regarding time allocation for rebuttals on Wednesday, given that thy have just the one day. The lead co-lawyer for civil parties stated they would use all the time offered (1/4 day). The prosecution expects to use the rest of that day. There is no hearing tomorrow (Tuesday) due to the third public holiday in as many weeks. On Wednesday, the floor will be given to the prosecution and lead co-lawyers for civil parties for rebuttal statements in Case 002/01. During rebuttal, parties are instructed to focus on the subject of this trial, providing information that will assist the judges in their deliberation. Court was adjourned at 3:50 p.m.