Drama as Defence Counsel Doggedly Cross-Examines Civil Party Witness
A courtroom drama worthy of prime-time American television erupted as Nuon Chea Defence Counsel Victor Koppe cross-examined noted Cambodian writer Oum Sophany on her experiences during the Khmer Rouge regime.
Monday began prosaically. Judge Nil Nonn called the session to order and the greffier reported all parties to the proceedings present. Two witnesses were on standby. The President announced that due to personal commitments, Judge You Ottara was absent but that Judge Thou Mony would be replacing him. As usual, the court entered into the record that he was accepting the request from Nuon Chea (supported by the recommendation of the duty doctor) that the accused be allowed to follow the trial from the downstairs holding cell. The President then turned the floor over to Judge Fenz to review the issue that had arisen just prior to adjournment on Friday over defence counsel questioning a civil party on the basis of a newspaper article not on the evidence file.
Judge Fenz began by reviewing that Rule 87.4 provides that only evidence put before the Trial Chamber can be used. She did concede that the court has been “flexible” in the past, but exceptions to the rule required that such documents be put on the shared drive at least forty-eight hours before any examination on them. Always to the point, she asked Mr. Koppe if this had been done since Friday. A simple question but a prolonged debate ensued.
Mr. Koppe denied that at any point he had actually referred to a document not on the court file and said that he had no intention of presenting such a document to the Chamber. He stated that he merely wanted to ask general questions and had no intention of putting anything on a shared drive. At that, he was allowed to continue with questioning Oum Sophany.
Ms. Oum did not recall if she had told the reporter for the Phnom Penh Post that she had been forcibly married and said she would not be able to do so unless she read the article which was the source of the counsel’s information. Otherwise, she could only remember being interviewed about her experiences during the Khmer Rouge regime and that she had showed the reporter her diary.
Mr. Koppe asked her if she was generally telling the public and reporters that she was forcibly married. This brought a quick objection from Co-Prosecutor Dale Lysak that the question “obviously originated” with the contested article, that “the statements attributed to the witness don’t say she said it; the reporter said it.” He further accused defence counsel of “misleading the public.” Mr. Lysak said all he wanted was notice of the evidence that the defence wants to use, he said, “not trial by ambush”
Judge Fenz told Mr. Koppe to put the article before the Chamber or the line of questioning would not be allowed. Mr. Koppe rebutted explaining that he was starting a whole new line of questioning. The Co-Prosecutor chimed in that if there were, then, other documents out there, to give notice of them. Quick on his retort, Mr. Koppe caught the co-prosecutor off guard by throwing at him: “Your documents, actually,” and listed a press release from the Association of Khmer Rouge victims, a story from the website of National Radio and Ms. Oum’s book, “Under Drops of Falling Rain” (which he noted says on the front cover that it is a work of non-fiction).
Mr. Koppe admitted to Judge Fenz that none of the documents were on the case file whereon she ordered him to give the forty-eight hours notice of use. Giving a hint of the defence concerns about the consequences of submitting the documents, Mr. Koppe protested that just prior to trial he had observed Ms. Oum being “couched” by her lawyer. He asked the court why the civil party lawyer was not abiding by the rule against doing so. (The Judge took no notice of this argument demanding to know instead if Mr. Koppe was “willing to honor the practice of notice?” Mr. Koppe agreed to do so but “only in a situation where (he was) intending to have the document added to the case file.” The President ruled he could proceed. Before he could do so, he was interrupted by International Civil Party Lead Co-Lawyer, Marie Guiraud, who opposed admitting evidence without notice. She also brought to the attention of the Trial Chamber that Ms. Oum is not a witness. She is a party before the court.
Mr. Koppe moved on but threw out to the court that if the judges felt pre-notice was so “important, why didn’t the judges put up the documents themselves as Thou Mony did with documents a week ago?” It was a salient point and one that provoked the judges into a hurried huddle. A mollified Judge Fenz delivered the court’s ruling but with a warning that “it won’t happen again.” The court would make an exception as it was at the beginning of the trial of Case 002/02 and maybe counsel had forgotten the rules. Adding further justification that the “wilfully going against procedure was not as serious as it sounded,” she said no documents not on the case file were going to be allowed. Documents must be submitted on the shared drive accompanied by a request under Rule 87.4. Then the court will decide and the witness would be recalled if necessary.
Finally, back to the main event but the controversy pursued Mr. Koppe.
Ms. Oum confirmed she was a member of the Association of Khmer Rouge Victims.
Mr. Koppe tried to follow up with a seemingly innocuous question about the objectives of the association but did not get very far. Supported by an objection from Pich Ang, National Civil Party Lead Co-Lawyer, as to the relevancy of the question in ascertaining the truth, Ms. Oum then tried to evade answering by stating she wanted to invoke her “right to remain silent…wish(ing) not to answer this question.”
Mr. Koppe requested that discussions with the court about where the questioning was going be held out of the hearing of the witness as she speaks English very well. The President wanted to know if it related to Tran Kok, the treatment of Buddhists or the killing sites and remonstrated the counsel to ask about the “facts.” Mr. Koppe listed his facts: that the question goes to the credibility of the witness and the value of her testimony; to forced marriage which is a crime; and to Ms. Oum’s June, 2011, press release on her personal story of forced marriage.
The President gave him the go ahead, but Ms. Oum “declined to answer these questions.” Mr. Koppe objected on the basis that she only had a right in self-incrimination not to answer. Madam Guiraud bounced up with the explanation that, as a civil party is not a witness, she is under no obligation to answer, that there is nothing prohibiting her refusal. Mr. Koppe asked for the direction of the court on the matter. The President initially backed Ms. Oum stating that as a civil party is not required to take an oath, the civil party has a different status from a witness. Another consultation of the entire bench later and he reversed himself, ordering her to answer even if the answer is that she does not know. He said that the Trial Chamber “can assess her testimony as uncredible if she doesn’t answer.”
Ms. Oum gave what she termed her “brief answer” about the objectives of the association:
“to find justice for those who are deceased and for the victims across Cambodia…justice for victims” She said her book, “When Never We Meet Again,” is about her experiences but that she has also written novels. This book is non-fiction but as only 80% of some of her other books are about her life, she calls them novels although she used her husband’s and her own names in them. She had included her own forced marriage. She explained it was forced in the sense that her mother-in-law forced her to get married.
Mr. Koppe picked up on the discrepancy between this statement and that of Friday when Ms. Oum had testified that she had been forced by the Khmer Rouge to get married, underlining to her that “there is a big difference between the Khmer Rouge forcing and marriage and a mother-in-law forcing a marriage.” Ms. Oum explained that her mother-in-law was under pressure from the Angkar to have them marry or Angkar would separate them and one of them might be killed.
She was ill at the time and had not wanted to get married then.
Going after her on the important issue of credibility of a witness, Mr. Koppe asked her to affirm that the association portrayed to the world that she was forcibly married by the Khmer Rouge. Co-Prosecutor Lysak objected as a question based on a document that defence counsel had not produced. Mr. Koppe ended his examination on the declaration that: “The media room is full of reporters who can see what is going on. I rest my case.”
Mr. Koppe had run out of time but Defence Counsel for Khieu Samphan, Anta Guissé, picked up where he left off. Ms. Guissé was interested in the veracity of the stories in “When Will We Never Meet Again” which Ms. Oum had attached to her application to become a civil party. Ms. Oum said this particular book, “is the truth, 100%,” but that “other books are 80% personal experiences and 20% fiction as exists in the form of a novel.” The 20% was what she had seen or later heard during the Khmer Rouge regime. Ms. Guissé was successful in extracting from Ms. Oum her agreement that she was not the victim of a forced marriage under the Khmer Rouge although she qualified her acquiesce with repeating that her mother-in-law had forced her because she was afraid of what Angkar might do. She further admitted she had been affianced in Phnom Penh.
Kong Sam Onn, Khieu Samphan’s National Defence Lawyer, asked Ms. Oum to explain what she meant by pretending “to be deaf or mute.” Ms. Oum painted a chilling picture of how it was dangerous to talk, that “people kept to themselves” in case they were overheard and reported to Angkar who would use anything in the nature of a complaint as an excuse “to smash” someone. So, it was best “to use the mouth only to eat and use words only when necessary.” Even spouses did not talk much and it was not good “to be too friendly” with one’s husband in case this be seen as an “indecent act.” She gave as an example an occasion when her husband had rested his head on her thigh while she picked lice out of his hair. This was reported at a meeting and they were criticised for it.
As Ms. Guissé completed her examination of the civil party early, Mr. Koppe was able to resume his. He wanted to know what the Angkar’s protocol was when a worker was sick and could not work. Ms. Oum detailed how Angkar set the work plan but that Angkar did not use sick workers. When she was unwell with asthma on occasion and “really couldn’t do it,” she would request permission to rest and such permission was up to Angkar to grant or not.
Mr. Koppe went on to have clarified why he could not find in Ms. Oum’s diary any mention of her expression ‘pretending to be deaf or mute.’ She said she remembered that it was in there because she remembered writing: “eyes were only for looking; ears were only for hearing; mouth was only for necessary words.”
(Michael) Yiqiang Liu, Ms. Oum’s lawyer, interjected that it was really a quote from “When Will We Never Meet Again.”
Her cross-examination being concluded, the President then gave Ms. Oum an opportunity to make an impact statement concerning the physical, emotional and material effects of the crimes perpetrated on her during the Khmer Rouge period.
Ms. Oum began by stating that she did not know of any other survivors who had written a diary, her “true reflection of events during the Khmer Rouge regime.” She related how the Cambodian culture had been destroyed, right down to the infrastructure, “to a country from zero.” She lost
“everything’: She was forced to leave home; she saw “bodies lying in blood;” she listed her many family members who had been tortured and killed. She suffered through labour without medical aid and traumatized by having been erroneously told the child would be still born. She saw other women and their babies neglected in hospital to the point of almost suffocating from wood smoke. There was dubious medicine. People were so hungry that they ate poisonous fruit and one person died from it. She, herself, had been made sick by eating poisonous mushrooms. Ms. Oum accused the Khmer Rouge of wanting “total annihilation” with their “delinquent ideas.” All property had been lost and there was no development of the nation.
When Ms. Oum had finished, Civil Party Lead Co-Lawyer, Marie Guiraud, told the court that the Civil Parties had a list of three questions to be read during the hearing to make people understand that the Civil Parties wanted to put questions. Ms. Guissé had no objection to such questions going on the record but voiced a caution against systematic questions. She did object to those (such as her client, Khieu Samphan) who have chosen to exercise their right to remain silent being pressured.
Ms. Oum then requested the court allow her to present a performance by a professional singer who would sing a song she had written about destruction of property. The President negated this idea telling her that she could not make such a proposal at this time; now was the time for her to ask questions of the accused. He reminded her that the accused were exercising their right to remain silent. Mr. Yiqiang clarified for the court that he thought his client had confused asking questions of the accused with her request for reparations. But, Ms. Oum did have three questions for the accused: (1) Why did they create a revolution to destroy culture? (2) How can you develop a country without education? (3) Why did you separate us from our families and force us to live and eat communally?
President Nil Nonn reminded defence counsel that, as the accused had exercised their right to remain silent unless explicit confirmation otherwise, that counsel was to advise the court in a timely manner of any change of heart.
Ms. Oum Sophany was thanked for her testimony and dismissed from the courtroom.
As the final item before the morning break, Kong Sam Onn, National Counsel for Khieu Samphan, raised the issue that Oum Sophany had used the word “criminals” in her description of Khieu Samphan and Nuon Chea. He objected to this characterization on the basis that the judgment is under appeal. He asked that the Trial Chamber strike the word from the record as prejudicial and that it not be used in the courtroom.
When the Trial Chamber next resumed, Civil Party Chou Kimlan was called to the stand to give testimony about her experiences during the Pol Pot years. First, the President established her birth date and place, her current address, who her parents were, that she had four children, and that her husband had been a military medic.
Civil Party International Lead Co-Lawyer, Marie Guiraud, elicited more background material of the events of so long ago that affected Ms. Chou, events that Ms. Chou said made her life “pitiful.” It had taken Ms. Chou and her family members 22 days to walk from Phnom Penh to Tram Kok. They had run out of rice. When they got to Tram Kok, they were given rice and corn. Ms. Chou still has stomach problems created by eating the corn. She and her family were considered “new people” although her husband’s parents were “old” or “base people.”
One night, around 9:00 P.M., the village chief and two military had come for her husband on the spurious excuse that he was to attend a study session. Instead, she learned he was shot behind a nearby pagoda. He had been condemned because a search of his clothing had turned up papers identifying him as a civil servant in the former Lon Nol regime. As such, he was considered an “enemy.” His parents were so distraught that they could not save him even though they were “base people” that they got sick and died.
Ms. Chou said there was discriminatory treatment of the “new people.” “New people” did not have the right to gather or walk freely that the “base people” did. Nor did “new people” have the same rations. They were always hungry whereas “base people” got an extra ration in the mornings. Also, “base people” did not have to work harvesting rice. After 1975, they all had to eat communally. The food ration was reduced once they were eating communally. She was “always absolutely hungry.” She was so hungry that it compelled her to barter her sarong for rice. Most importantly, she never knew of any “base people” that disappeared.
Tragically, Ms. Chou’s baby died from lack of sustenance and her oldest son who was 14 was killed when he was caught foraging for potatoes to eat. Her elder brother was killed after trying to flee to Vietnam. Another brother never returned from a study session. Her elder brother’s son was persecuted for being the “son of an enemy” as his father had been a civil servant. The son had been a monk but was defrocked so he could be as soldier. His wife, a medic, agreed to disembowel her husband because he was an “enemy.” His gall bladder was used for medicine.
After lunch, Ms. Chou continued detailing her “sufferings” in her “prison without walls,” as she called it. She transplanted rice, dug canals, carried faeces. She did whatever work the cooperative asked of her. Although she could request not to work when ill, she would not get a food ration if she did not work. Those who rested too much were killed. She was always afraid of being executed. She said she knew these were cruel people and they thought the “17th April people,” the “new people,” were lazy, did nothing and felt they wanted to “smash” all of them. That she was the daughter of a civil servant left her vulnerable.
They were not allowed to complain about their situation or that they did not have enough to eat.
Complainers were killed. She had had colleagues who disappeared after they complained they had not enough food. Two friends, sisters, who complained of insufficient food were raped. She does not know what happened to them after that.
In 1977, Tram Kok had visitors, important visitors. Ms. Chou said that she recognized Khieu Samphan from newspaper pictures. And both the group chief and unit chief identified Khieu Samphan and Nuon Chea. They were accompanied by Ta Mok, the provincial governor for three provinces. The chiefs told them that these men “were in charge of the country.” Her siblings at other cooperatives had told her they also had recognized the men.
Ms. Chou witnessed three forced marriages and heard of many more. One ceremony she knew Angkar had arranged concerned 30-32 couples. And there were “moral offences” such as secretly falling in love. She knew of a widow who was punished for this transgression by have to carry earth. Another person was found hung after being accused of moral offences. It was unclear if this was suicide or murder.
She was twice asked to produce her biography. The village chief, the duty chief and another female assisted her by writing down what was said.
The International Co-Prosecutor wanted to understand more about the visit of the dignitaries.
Ms. Chou had a question for the court, too, about this. She wanted to know “how the accused could not know that Khmer were killing Khmer?” She said there were 300-400 people on the canal worksite. The leaders observed them working and pointed with their fingers to various things they were highlighting to each other. Over lunch, they addressed the workers, encouraging them to work hard in order to finish the job. In 1977, Tram Kok District 105 was called a “model district” and received an award and praise from the “upper echelon” for good labour and a good harvest.
Ms. Chou said there was a Vietnamese family in the commune that did not know how to plant rice seedlings. One day, they were told they were being sent back to Vietnam. They said good bye to their friends. They were happy that they were going to be repatriated. But, Ms. Chou knew it was just an excuse. Nobody was sent back to Vietnam. The whole family was killed.
“They killed people like they were killing animals.”
Ms. Chou related how they often came for people at night so others couldn’t see what was going on. There would be whispers the next day about who was missing. She “became scared.” The Khmer Rouge would also try and listen to spouses (but not the widows) talking at night. And no one dared to speak at meetings for fear they would be killed. She did not recognize the names on a death list presented to her.
After the break, President Nil Nonn announced that he was forced to adjourn court as Nuon Chea’s blood pressure was up and he was feeling too ill to follow along. The court could not continue without him. He said that mindful of the request by defence counsel and the advice in the Experts’ Medical Report, starting tomorrow, the morning session would last from 9:00 A.M. to 11:30 A.M. This would leave the accused with time for a rest so they can make it through the afternoon sessions.