A Boycott on Day 1 of ECCC Trial 002/02
The fist evidentiary hearing in ECCC Case 002/02 against Nuon Chea and Khieu Samphan took a dramatic turn today when both of the accused called a boycott, threatening to end their participation in the proceedings
Before a packed gallery of public and press, opening statements began in the second phase of Case 002, the trial of Nuon Chea and Khieu Samphan. Cambodians came to see justice done and reporters from around the globe were there to record the happenings, as officers of the court spoke of the evil that had been committed.
President Nil Nonn began the day’s hearing with quick disposition of two preliminary matters. Firstly, the president announced that the complaint made about the qualifications of judges on this bench would be dealt with by a separate hearing. Secondly, in the matter of the filling of a new Statement of Disclosure from the co-prosecutors, be announced a postponement of the first witness until October 27th to allow time for consideration of the further disclosures and for an in camera management meeting on October 21, 2014, to discuss the evidentiary development.
On the request of the court, the Clerk of the Court, Ms. Se Kolvuthy, then reported that all parties to the proceedings were in attendance.
President Nil Nonn described the stages thus far in the prosecution of the accused. He continued from the Order limiting the scope of the first trial to the severance from that trial the matters brought before the court in the current phase. He then recalled the Judgment of August 9, 2014, against the accused, which they have both appealed.
The president then read the current charges against the accused:
- Crimes against humanity of murder, extermination and enslavement, torture and rape, persecution on religious and racial grounds and other inhumane grounds;
- Genocide of the Cham and the Vietnamese (excluding crimes committed by the Revolutionary Army of Kampuchea on Vietnamese territory);
- Deprivation of due process and unlawful confinement;
- Regulation of marriage nationwide.
Evidence supporting the charges of internal purges at S-21 Security Center, Kraing Ta Chan Security Center, Au Kanseng Security Center, Phnom Kraol Security Center and the 1st January Dam Worksite, the Kampong Chhnang Airport Construction site, the Trapeang Thma Dam Worksite and the Tram Kok Coopertive will be presented.
The subject of the treatment of Buddhists would be limited to the Tramkok Co-operative and targeting of former Khmer Republic Officials will be limited to Tham Kok Cooperative, 1st January Dam Worksite, S-21 Security Centre and Kraling Ta Chan Security Centre.
After his formal recitation, Mr. Nil Nonn reminded the accused that they have the right to remain silent but, if they do not exercise this right, then the accused can be examined. When he asked the accused whether they would be exercising their rights in this regard, Nuon Chea immediately replied in the affirmative. In a foreshadowing of subsequent events, Khieu Samphan reserved responding to the question until after his opening statement.
In the next order of business, the outline of the prosecution’s case was presented in two parts. National Co-Prosecutor, Ms. Chea Leang outlined the factual allegations that would be brought against the accused. After a short break, International Co-Prosecutor Mr. Nicholas Koumjian delved into the legal elements necessary to prove the criminal responsibility of both accused.
Ms. Chea Leang reiterated the importance of the historic verdict of August 7, 2014, saying that it “brought the long awaited day of justice for the victims of the Khmer Rouge.” She reviewed how the first part of the trial had dealt with crimes against humanity that occurred during the forced evacuation but that most mass crimes had yet to be addressed. It would be the work of this trial to deal with: the enslavement, overwork, inhumane conditions and unrealistic assignments that lead to injury and death in the co-operatives and work sites which were projects of “the great leap forward;” the persecution of the Buddhists; the damage caused particularly (but not exclusively) to women through forced marriages and rape which destroyed the family structures and subjugated the person to the will of the party; the interrogation by torture and large scale exterminations of the thousands who had been in security centers; the genocide of the Vietnamese and the Muslim Cham.
Overall, Ms. Leang described a picture of a relentless and systematic identification of those that the Khmer Rouge feared could oppose them, whether they were city dwellers, non-peasants or workers, those who tried to escape the “prison without walls” that Kampuchea became, or the soldiers of the previous regime and their families. She related that sometimes all it took to be “smashed” (a euphemism for being killed), was to admit to “dream(ing) of good times and good food.”
Ms. Chea addressed the question of the trial’s importance now that the accused are already under life sentences. She was emphatic that the prosecutions were necessary to achieve justice for the victims who suffered and died during the three years, eighteen months and twenty days of the Khmer Rouge regime.
The national co-prosecutor then briefly rebutted claims of the accused that they had no knowledge of such crimes as they were being perpetrated. She said that the evidence will show that this professed ignorance would have been impossible as the accused had visited the sites of the atrocities, showing them off to foreign visitors. They had received monthly written reports of the programs of death and destruction from various districts under their purview, she said, in particular from the infamous S21, where Khmer Rouge jailers requested and received orders directly from Nuon Chea. They had themselves written telegrams ordering executions and orders to “sweep clean” even children, she stated, and authored commendations praising districts for their contributions to the socialist revolution and for building communism through violence. There is evidence of the widespread knowledge of the crimes, the conditions even being described in a youth newspaper, she argued, as well as meeting minutes reflecting the attendance of the accused and detailing discussions of their crimes.
There are also witnesses, she said – a commune chief, former guards, surviving detainees, and victims who will testify as to the responsibility of the accused for the atrocities. These witnesses will provide evidence that these were acts of trained party members carrying out instructions and that the instructions from identification through extermination came from the Nuon Chea, the prosecution said. She went on to state that the prosecution will prove that the mass of crimes were done with the full knowledge and directions of the Khmer Rouge leaders and that those leaders were the accused, Nuon Chea and Khieu Samphan, as shown through their own admissions. She gave the example of Nuon Chea acknowledging that subjects “usually confessed when tortured.”
At the conclusion of Ms. Chea’s remarks, there was a short break.
When the sitting resumed, Mr. Nil Nonn disposed of a request by the civil parties to submit a motion by ruling he would not receive such a motion directly at the trial and that the parties must file the motion according to the rules of the ECCC.
Mr. Nicholas Koumjian picked up the story by reviewing the law but also by arguing that there is no ranking for the crimes of which Nuon Chea and Khieu Samphan are accused.
He began by defining genocide as “the systematic destruction of all, or a significant part of, a racial, ethnic, religious or national group.” He clarified that the acts need not be only killing but could also be such as bodily harm leading to death or destruction of the group by preventing births or transfer of children. It is not necessary to destroy the group in whole but just to have the intent to destroy a substantial part of it to the point that it threatens the survival of the group, Mr. Koumjian explained. The motive behind the act is not important; the focus is on the destruction in whole or part, he said. The Khmer Rouge targeted specific economic groups, new people and potential political opponents. High on their list were the Cham, he explained, because the Khmer Rouge felt that, as Muslims, the Cham were a future threat to their power, and the Vietnamese because of their historical aggression towards Cambodia.
Estimates of the number of Cham slaughtered vary between 250,000 (36%) and 700,000 (70%), the Co-Prosecutor stated. The Khmer Rouge targeted the group leaders and intellectuals in order to destroy the group’s identity, he explained. For instance, of 113 “sweep and make clean” community leaders, only 20 survived; of 300 teachers, 38 were left; and of members of the Islamic central, 2 survived out of 25.
Mr. Koumjian said that witnesses will attest that the Vietnamese were treated differently and that by 1977-1978, they were killed en masse in furtherance of the policies of Nuon Chea, and of Khieu Samphan as the international face of the Khmer Rouge. Mr. Koumjian related how the senior leadership of the Khmer Rouge at Angkar 870 (that is, the accused), directed that if the father was Vietnamese only he was to be taken but if the mother was, then to take the children, too, as “they have sucked the milk of the mother.” The co-prosecutor said the evidence will show that the crimes were systematic and not a random result of any individual’s initiative. They were born out of the rapid agrarian revolution and the need to keep the Khmer Rouge leadership in power, he said.
Mr. Koumjian then cited Nuon Chea’s own admissions of such crimes, playing a video in which Nuon Chea clearly states that ‘the individual didn’t matter’:
“I put aside the individual. I’m sorry for those who were killed. I have no regrets.”
In this indictment, the co-prosecutor illustrated how the rights of the individual no longer existed – that they were subjugated to the right of state ownership of the person.
Similarly, in order to destroy any group that would demand loyalty to it, rather than only to the Khmer Rouge, Mr. Koumjian said, the prosecution can show how the Khmer Rouge defrocked Cambodian monks until 90-95% of religious practices were eradicated.
Mr. Koumjian quickly dismissed the accused’s excuses and justifications with a myriad of facts. Saying that he will show that although Nuon Chea “blames it on the deadman,” Pol Pot, Mr. Koumjian said that he will show how Nuon Chea was the closest to Pol Pot, that Pol Pot discussed all issues with Nuon Chea, and that Nuon Chea himself has said there were no arguments or disagreements between him and Pol Pot from 1975-1979. The evidence is that Nuon Chea agreed with Pol Pot’s decision to kill, Mr. Koumjian said, quoting the accused: “I just wanted to get the problem solved.” He pointed out that this contradicts Nuon Chea’s claim that the people were really killed by the Vietnamese and the CIA, or by spies and traitors sabotaging the party.
Khieu Samphan has claimed he “had no power,” that he “was not a leader” but, Mr. Koumjian stated, the prosecution will show that this accused was head of state and has said himself that his “image and (his) name represented Cambodia.” Further evidence will be presented that Khieu Samphan represented the Khmer Rouge both nationally and internationally; is listed as attending Standing Committee (the top decision-making body of the Khmer Rouge) meetings according to the minutes thereof; brags about serving in the government; became President of Presidium in 1976; coordinated arrests that led to genocides, and, in public appearances, has lied to hide the crimes of the Khmer Rouge. As to Khieu Samphan’s claims the “executions were all Pol Pot’s idea,” Mr. Koumjian will spell out how Pol Pot could not have done it all alone. Khieu Samphan later admitted that members of the Central Committee and the Standing Committee approved of the arrest of some of their members but everyone approved of the arrests meaning he, too must have approved. Mr. Koumjian again used the accused own admissions against him, citing Khieu Samphan’s statement made on December 29, 2003, that the Khmer Rouge “committed more violence than any revolutionary movement that the world has ever known.”
Mr. Koumjian said the prosecution will show how genocide “was a fundamental part of the Khmer Rouge doctrine,” that even the party anthem includes references to blood turning to hatred. The prosecution will argue that it was a case of the “leadership and must be protected at all costs.”
Mr. Koumjian ended by stating that the accused were directly responsible for the atrocities and that the trial will prove their criminal responsibility.
It was then the turn of the accused to make their statements.
First up was Nuon Chea who derided the prosecutors for ignoring evidence that the zones acted autonomously, and further evidence that the Standing Committee and Central Committee members were actually leaders of an opposing faction in the party that was supported by Vietnam. He offered as proof of same that this faction was ultimately successful in undermining the party.
Nuon Chea then claimed that an unfair trial led to his conviction, that the court should have allowed his requested chief witness Heng Samrin (now President of the Cambodian People’s Party) as a character witness for him and also to give evidence as to the existence of “serious internal divisions within the party” and to key policy decisions. He gave as an example that Heng Samrin would have testified that he “never gave any orders to kill soldiers, officers or people (sic) during the evacuation.” He went on to argue that his rights to due process were denied by this omission and by the failure of the court to take into account the historical Vietnamese aggression that he claims provoked the acts of which he is accused. Comparing Vietnam to a “starving boa constrictor flinging itself on a victim”, he elaborated on this later point saying it was Vietnam’s express desire to form an Indochina state by the unification of Vietnam, Laos and Cambodia.
Overall, Nuon Chea accused the prosecutors of presenting “a simple story, a child’s fairy tale” and making a “mockery of justice.”
Nuon Chea continued by saying that it was the court’s prejudice against him (as detailed above) that motivated him to file the outstanding application to have four judges (three Cambodian and one French) removed from Case 002/02 for the stated cause of “no longer (being) qualified to sit in judgment against” him. He argues that they have already made up their mind that he is also guilty in this trial before it starts. He offered as proof that the first judgment showed lack of judicial independence and bias against him and that alleged “all Cambodian judges work in fear and under government control.” Because of what he claims are 200 errors in the first judgment he has instructed his lawyers to file an appeal of his conviction, he said.
The accused went on to recognize that as a senior leader he is “remorseful for the suffering and accept(s) moral responsibility for it,” but that he “never intended to cause such suffering…that everything done was done to create a better society where people would be masters of their own independence.”
Because there has been not ruling on his outstanding application and none of the judges have recused themselves, Mr. Nuon announced that he would be instructing his lawyers to leave the courtroom after the defense team finishes its responses and that he would be boycotting the hearing until there is a ruling on the disqualification application.
On that note, Nuon Chea completed his statement.
Mr. Sun Arun, of Nuon Chea’s defense team, declined the opportunity to respond to the co-prosecutors.
Khieu Samphan offered his comments next. He argued that the conduct of the first trial had seriously violated his right to a fair trial and, consequently, he had instructed his lawyers to appeal the Judgment. He also concluded that if the same procedures were followed, that he would be found guilty of joint criminal enterprise once again. He additionally objected to Case 002/02 proceeding before a ruling in the matter of the judges’ disqualification. Further, Kheiu Samphan said he has instructed his lawyers that, since they do not have time for both the trial and preparing the appeal on the Judgment, their priority must be to expend their “maximum effort on the appeal.” He expressed that he was exhausted from overwork on the hearing and the appeal, and that “every day (he has) to participate in the courtroom, it is under duress and a violation of his rights until (his) appeal is decided on.” After stating that he and his counsel would return to the court when they had finished preparing the appeal, his counsel then left the courtroom.
Anta Guissé, counsel for Khieu Samphan rose to further respond. She, too, alleged that the court is prejudiced against her client and that, because of this, with the present construction of the court, it is inevitable that the Judgment of this trial will mirror that of the first trial. She said that her “choice is between malaria or cholera,” but that her first duty must be to defend her client to the best of her ability. Carefully emphasizing that she is not “deserting the trial”, she announced that she was “making the only reasonable choice in the interests of (her) client that she could make,” and prioritizing work on the appeal.
She was followed by her co-counsel, Kong Sam Onn, who reiterated that Khieu Samphan “had made the best choice” and that his counsel had to follow the client’s instructions and code of ethics of lawyers that mandate their options are to accept such instructions or resign. He felt that trying to do both the appeal and the trial at one time would lead to success in neither, that “you can’t catch two fish with one hand. Both will slip away.” Mr. Kong urged for an adjournment of proceedings or to continue with no defense for his client. He then informed the court that he was leaving the courtroom to prepare the appeal.
Mr. Koumjian rebutted defense counsels’ position, stating that it was not up to a client to run a trial or for defense counsel to walk out of court rather than defending their client. He pointed out that he had the same time constraints in preparing simultaneously for both the appeal and the trial as did the defense and that the court had already made allowances for this by reducing the hearing to three days a week. He respectfully submitted that it was up to the judges to determine how the trial is managed and urged the judges to order defense counsel back to work as officers of the court and to order them to obey the instructions of the court.
Ms. Marie Guiraud, International Civil Party Lead Co-Lawyer was next, arguing that “the work of the court must come to a completion,” and that it was time for the accused to actively participate in that work and to fulfill their stated desire to explain their behavior to the people of Cambodia. She pointed out that the accused had different arguments for their lack of participation. While Nuon Chea was concerned with getting a ruling on the disqualification of the four judges, Khieu Samphan was more occupied with preparing the appeal. She expressed her desire that the parties would return to court so they could “achieve the objectives of justice and truth.”
In a last appearance, Mr. Koumjian presented the court with a relevant precedent from the Special Court of Sierra Leone. He argued that the problem that this court faces is essentially the same as that faced by Samuel Norman when he chose to self-represent. In that instance, the court ruled that Mr. Norman’s right to self-represent had to be balanced against the interests of justice and can be derogated on that basis.
President Nil Nonn reserved decisions on both the boycott and defense counsels’ behavior, and expressed his desire for all parties to attend the in camera case management meeting on Tuesday, October 21, 2014.
The court has much work to do as Nuon Chea’s “fairy tale” is taking on shades of a soap opera.