Fog of Time Affects Witnesses Testimony Leaving the Fear Unforgotten
Students from Western University in Phnom Penh received a different sort of lesson today while listening to the testimony of two victims of the Khmer Rouge regime. Justice is subservient to the trials of aging.
Kev Chandara was thanked by Judge Lavergne “for returning to the courtroom” to finish his testimony started before the holiday. He was assisted by his son. Judge Lavergne asked Mr. Kev to clarify several points from his prior statements.
Mr. Kev replied that he did not know all of the staff at Kraing Ta Chan nor did he know their names. He knew his interrogator, Dam (the executioner), and those who assisted in the killings.
His work was to carry prisoners’ faeces and pour their urine into a big jar, to transport people and to bury dead bodies. If there were a lot of bodies, more than ten people would be assigned to drag the corpses into the pits. Prisoners were not allowed “to trespass” in the kitchen, but he would take the body wastes to north of the kitchen area. Mr. Kev saw children and teenagers working at Kraing Ta Chan. For example, he said, the guards were young adults. The children would be sent out to tend cattle during the day and had to return to their shackles at night. Mr. Kev himself was not shackled either during the day or night.
The witness remembered Nuon Chea visiting prior to the liberation of Phnom Penh. He knew it was before because Lon Nol’s “servants” had not yet arrived at Kraing Ta Chan. Some of the former Khmer Rouge cadres who were then prisoners identified Ta Chea through a gap in the wall. Mr. Kev saw Ta Chea from about 70 to 80 meters away. When quizzed if he saw Ta Chea or Nuon Chea, Mr. Kev said he does not “know who Ta Chea is even now.” But, Mr. Kev also said he “can never forget” the second time he saw the same man at a Chinese circus performance. “Cambodia was still an agricultural country…” and Nuon Chea said in a speech that the Khmer Rouge would “transform it into a great industrial country.” He could not remember the date but it was sometime towards the end of 1976. As a farmer, he was happy that they “were going to transform our country into an agro-industrial country.” Judge Lavergne noted for the record that the “News from Democratic Kampuchea” had an article on a 1978 tour by the Chinese Peoples’ Liberation Army and acrobatic troop.
The only other Khmer Rouge leader that Mr. Kev remembered seeing was Ta Mok. He had seen Yen Sarey (spelling?), a Professor of Literature, at the university but Mr. Kev was not his student and he had never met him. Mr. Kev said “it has been a long time” and he could not recall even his “own teachers.” Judge Lavergne informed the court that Mr. Kev had given a statement to investigators in 2008.
Mr. Koppe, Nuon Chea defence counsel, opened with saying he did not “think (Mr. Kev) saw Nuon Chea then.” The lawyer then asked for the court’s permission to show Mr. Kev a line up of photos with the view of determining whether he could identify Nuon Chea.
Civil Party Lead Co-Lawyer, Marie Guiraud, enquired that, since the examination of Nuon Chea had been concluded, what was the protocol that would allow the defence to now examine on a new document? She asked for help “to understand the procedure in the way the floor is given to the parties. When does the Chamber take the floor and what impact does this have on the parties?”
The court answered that it is exceptional when a judge asks a question, that this “is a peculiar case.” Further, only the Nuon Chea defence team would be given the floor in order that the identification of Nuon Chea could be explored.
Judge Lenz was quick to offer that the examination was to be limited to what Judge Lavergne raised and asked what exactly did Mr. Koppe want to show.
The defence counsel said his objective was “to establish if the witness is capable of recognizing persons he claims to have recognized at various times.” He thought that this would be an issue with other witnesses also.
Judge Lenz thought it best to review Mr. Kev’s age. Mr. Kev said he is now 80, and that “little by little” since he was 75, he had noticed he was developing some memory problems, both “past and recent” memories. For example, sometimes he could not remember the names of his children. His memory had deteriorated since the date of his last statement in 2008.
Co-Prosecutor Travis Farr said he did not object to the identification procedure but wanted to raise problems with the probative value of any such testimony. He felt the still images taken from a video were not good and that it would be better to show the witness short clips. He said that a couple of the photos also were not good. He further remarked that ,as Mr. Kev “did not have a great opportunity to observe, his testimony is on what he heard.”
Mr. Koppe contributed that he had adhered to the strict Oslo Guidelines on confrontations.
He said that the videos presented a problem “of people walking in sequence (of authority) and conclusions could be drawn from that,” so the video would not have any probative value. Also, the guidelines require people completely unrelated to the subject. He ended by offering “to discuss it with the prosecutors” but that he “had depended on material from the case file.”
The President allowed the photo collection to be shown to the witness, but Mr. Kev said he could not see well (even with glasses.) He could not identify any of the people in the grouping,
“no one look(ed) familiar.”
Mr. Koppe asked that Mr. Kev be allowed to look at his originals but the President announced that the confrontation on the photos was concluded.
Kong Sam Onn, Khieu Samphan defence counsel picked upon how many days Mr. Dev had been under arrest. The witness said he had discussions with his family on the matter since his last court appearance. His son had told him that he had spent 29 days in total in custody, “probably from late March to ten days after liberation when he returned home.” Mr. Kev could remember the prisoner buildings at Kraing Ta Chan were about three by twenty meters, that they were oriented east to west, and the thatched roofs were made of dried sugar palm leaves. He was not sure who the chief of the security center was while he was there but he remembered Dam, the executioner, because everyone feared him. Mr. Kev was interrogated three times by the same person. “Regularly but not constantly,” new prisoners would come in and others would die or “go out.” It was “not possible” for him to calculate how many new prisoners there would have been or give a weekly change in the numbers as the numbers would vary.
He participated in the exhumation of eight pits, four of which he had also worked on digging. The pits varied in size from 2 meters by 2 meters, 3 by 4 meters and 1 to 2 meters deep. The biggest pit was 4 by 4 meters, and three meters deep, and this was the first pit he exhumed after liberation. The monks counted all of the skulls from all of the pits together. After some skulls were lost, they did a recount.
Mr. Kev confirmed the number of human remains found on exhumation was 10,013. Co-Prosecutor Farr interrupted to have put on the record that the witness had also given the number 12,132 in his testimony. Mr. Kong disputed this number, quoting from an article from “Searching for the Truth” magazine written by a researcher at CD-Cam that stated: “1,045 people were tortured and killed at Kraing Ta Chan,” a number the counsel emphasized that “is greatly different from his number presented to the court.” Mr. Kev insisted there were more than 10,000 skulls.
After the morning break, Co-Prosecutor Dale Lysak objected to the representation Mr. Kong had made that only 1,045 skulls were found according to DC-Cam saying that that was incorrect. It was 10,043 skulls as is stated several places on the file. Mr. Lysak reprimanded his colleague stating “it is incumbent on counsel to rely on evidence in the record not to seize on a typo in an article.” Kong Sam Onn shot back that he objected, that this was not the time for the Co-Prosecutor to be making conclusions on testimony.
Kong Sam Onn then went on to ask Mr. Kev about the interrogation venue. Mr. Kev described again the interrogation house of four walls with a door on the north. He could “recall clearly” when Ta Mok had him released. Ta Mok stood outside the detention building and shouted:
“The doctor detained here. Did you feed him yet? If not, feed him and when I return from the south , I will fetch him.” Ta Mok took him to a hospital where Mr. Kev worked with some others to fix the radiography machine. After the repairs, he showed the hospital staff how to use some other medical equipment and medicines, and then he was taken to his home. Mr. Kev did not know what Ta Mok’s position was or the leadership structure for the southwest zone. He only knew that, when a person was referred to as “Ta”, it meant the person was in a senior position. He added that he “did not see him as a cruel person at all.” For instance, he remembered an occasion when Ta Mok criticized the cooperative chief for poor quality soup and ordered the chief to make new soup for the workers, throwing away the old. He only saw Ta Mok frequently for just the short period of time he worked on the water pumps. After the death of Mr. Kev’s mother, his relationship with Ta Mok had become “remote.” But Ta Mok did send him a message that he had “to sacrifice (himself) because (he) was an intellectual.” After 1979, Mr. Kev worked with Amy Brown and others in Oxfam. The organization supplied corn and flour and helped with digging a well for poor villagers.
The cross-examination was completed, The President thanked Mr. Kev for “his valuable time in testifying before the court.” Say Sen was ushered in.
Say Sen could not remember his exact birth date “because (he) was young at the time.” He does not know the year but said that he is 57, and that he was born in Takeo province. He is a rice farmer with seven children.
Mr. Koppe raised an issue concerning the validity of the identification of the witness because he did not know his birth date and because his father’s name given in court differed from that on his statement. The President explained that “in Khmer culture, age is given rather than date of birth. In practice, one would ask for the year and then his age, and make calculations accordingly.”
Mr. Kong Sam Onn complained that the defence team needed access to the documents used by the prosecution. The Court reserved on this issue to allow time for deliberation over lunch.
Ms. Moch Sovannary began the examination by asking the witness about his parentage. Mr. Say explained that his mother had worked for Sok Soy (spelling?) and become pregnant by him out of wedlock. He was born after she had returned to her village in a liberated zone of the Khmer Rouge and he never lived with his father. Relatives told him who his father was; he only saw him from a distance. During the Khmer Rouge years, he used the name Khut Sen on the advice of an old lady. She told him that as his father had been an official under Lon Nol, he could be targeted for execution. He was only about ten when his area was liberated. Those who were at Kraing Ta Chan are still living in his community. After falsely accusing him of stealing cassava, one had beaten him on the head. Mr. Say said that his fear that the regime could return had inhibited his answering questions in the first interview he gave investigators. He later realized that this would not happen and he talked.
Mr. Say was sent to Kraing Ta Chan in 1974, but he could not remember the month. A militia man had sent him to a youth unit. His grandmother said that he was too young to go there so he was sent to the prison. There he was detained, shackled and interrogated about his connections to jungle bandits. He had no such connections. After about one month in detention, he was released, he thought, because he was the youngest. He was assigned to work farming, cutting grass, and carrying faeces. When he became trusted, he was put to tending the cattle. He dug pits, carried dead prisoners to them, and grew coconut on the graves. He learned “to stay quiet so that (he) would be spared.”
The witness could remember 12 security guards, a chief and his two deputies. He used to collect sugar palm juice for the chief to drink. Mr. Say could not refuse any task but he said he “prayed for assignments” as they helped him to survive. During the day, he would also help distribute the food rations. He would take the porridge to other buildings, too. There were four buildings with 20 to 40 prisoners in each one. A perk of the job was that he could keep the remaining food in the pot for himself. At night, he dragged away the dead bodies before he put the shackles on himself. He said he was considered a “less serious offender.”
Mr. Say spent from 1974 to the fall of the regime in 1979 in Kraing Ta Chan. He survived but he can never forget the horrible conditions, the shackles, people dying of starvation and disease. He remembers how the same coconut shells in which the people would pass the urine and faeces down the line to dump were the same shells in which the prisoners (after a quick rinse out) were served their food. And he could recall that if anyone made a sound in the night while shackled, they were beaten. Prior to liberation, women were in their own row separate from the men’s row. After liberation, they were all mixed. He felt the women had a much harder time being shackled than the men but everyone lost weight during detention.
The President dealt with the reserved issued of use of documents right after the lunch break. He said that the court provided a reference number for use on the documents to be cited in court. Nil Nonn said he knew that Kong Sam Onn had the particular document over which the complaint arose because he mentioned it in a letter to the court. And with a caution to all parties to slow down for the sake of the translators, the session got under way.
Mr. Say was questioned about seeing children killed. One instance was still vivid. He had been climbing in a sugar palm tree collecting palm juice for the chief, when he saw two children (one about age three or four, the other, age five or six), brought to the pits. The parents had already been killed. He heard the sound of cracking against the tree and saw the younger child “smashed.” They hit the older child across the neck with a hoe. Then they cut out the children’s gall bladders and threw the bodies into the pit. Mr. Say knows some of the executioners are still alive.
Civil party co-lawyer Martine Jacquin took over the questioning. Mr. Say corrected his father’s name saying it was Tith Soy. Ms. Jacquin asked him about the man. Mr. Say could not remember much other than he was killed because he had been a District Chief during the Sihanouk years and the Khmer Rouge targeted “capitalist and feudalists.” She moved on to have him describe the interrogation house again, the three layers of fences, and asked him how many prisoners died a day on average. It varied. After interrogation, a lot of them were in bad shape. And, as they were accused of “betraying their country,” they were not given any food. The men lasted 18 days without food. Torture was the chief cause of mortality in the camp. Mr. Say had been beaten many times. In the most severe incident, he was accused of stealing cassava and hit with a rifle on the head. To attempt escape, was a serious offence and prisoners that tried it were shot.
Most of the prisoners were “new people,” but the treatment was the same for all categories of people. When there were more prisoners, there was more staff than just the twelve soldiers and three chiefs. The chief and the two deputy chiefs carried out the interrogations. Mr. Say did not know how those slated for execution were chosen. A messenger would return from the office with an envelope every two or three days and the killings would resume.
Mr. Say said the guards got the people to walk to their deaths by telling them that they were going back to their cooperatives or homes. Two at a time would be unshackled, taken to the potato plantation, blindfolded and have their hands tied (“so they wouldn’t take revenge against Angkar”). They would be ordered to kneel on the edge of the pit. First they would be hit on the back of the neck with a hoe and then a 40 to 50 cm. knife was used to cut their throats. They were undressed and dumped into the pits. Mr. Say would be told to play music over the loudspeakers and to crack wood to drown out the screaming. Later, he would collect the clothing and take it to the cooperatives. If they were not executed, the maximum anyone survived in the detention buildings was about a month because they were in such bad shape due to torture. In 1977, he had to help dig mass graves because the killing was “active” due to fighting along the Vietnam border.
Women suffered from rapes. He saw a guard rape two women. The guard put a bullet into the vagina of one woman but she survives today. After the fall of the regime in 1979, the chief fled with a female prisoner. He died; she is alive.
When important figures came to visit, the prisoners were shackled; only the cadres could move around. Mr. Say had been beaten with a whip on his back during the last visit. He did not know the leaders names but a soldier told him one was “Ta Fifteen” (correct?)
Mr. Say has tried to forget his painful experiences. He does not want to be interviewed by journalists as this causes him to remember. He testified that he “would like to change the story but could not avoid it.”
Senior Assistant Prosecutor Vincent de Wilde was interested in the layout of the security office and what happened, where. Mr. Say told the Chamber that, when the external militia brought more prisoners, they would ring the bell at the external fence and staff would come and receive the prisoners. There were two gates (on the east and west sides) in that fence but there was no specific entrance to which prisoners were brought. No photographs were taken then but the prisoners would be interrogated two to three days after arrival. Prisoners came from all over the zone. There were no renovations to the detention buildings after April 17, 1975, but two more prisoner detention buildings were constructed. It did not matter whether the prisoners were there for “light” or “serious” offences, all would eventually be killed. Mr. Say did not know what the criteria were for categories of offences. After 17th April, there was an increase in prisoners as the Lon Nol people were brought in. He had been concerned that he would be “implicated” as the son of a Lon Nol worker.
Mr. Say said he was not allowed to wander anywhere within the prison. For example, he could only go to the guards’ kitchen when ordered to do so. But, he ended up sleeping in the kitchen along with a 50-year-old man called Ta Chin when the prisoner detention buildings were full.
The witness described how those being interrogated would sit on the ground, the interrogator sitting on a chair or piece of wood. He had to sweep the area early in the morning before the “work” began at 8:00 or 9:00 AM. Only one prisoner was interrogated at a time, for an hour. He was too scared to watch. He had gone through two interrogations himself, mainly about his father. Ta Cheng had interrogated him. The chief said to spare his life as he knew nothing.
There were burial pits in the outer part of the prison beyond the second perimeter. There also were more pits west of the village that were built in 1977 when mass killings took place. Mr. de Wilde showed Mr. Say a photograph which he recognized as a small pond that was next to a water reservoir where bodies had been dumped. Those that died during the night would stay shackled in place until about 4:00 PM the next day when he would move them to the pits.
Some prisoners would by happy and clapping when they were told that they were going to be returned to their cooperatives or homes; others were sad as they knew what was really going to occur. All the guards participated in the killings. Mr. Say only witnessed children killed once so does not know what the procedure for children was. He turned up the music on the loudspeakers when he was directed to do so. There was a loudspeaker in a tree and another at the kitchen turned towards the detention buildings. After two or three days he would be told to go and cover the pits with dirt because of the stench.
Mr. Say’s memories of being shackled are still raw. The scars on his ankles “remind (him) to tell (his) grandchildren what happened and that (he) suffered from these crimes.” The prosecutor apologized for “opening old wounds.” Mr. Say told the court how he would catch frogs and grind them up mixed with salt to treat the infections the shackles caused. There was little that approximated hygiene. The best the prisoners could do was to wash their faces quickly with water from a bucket. They had to use a palm leaf to eat as the guards were afraid they would use a spoon to remove their shackles. They drank water from a shell. The smell was “noxious. After a while, it became normal.” Lack of food meant few prisoners would defecate. He would monitor the prisoners, counting them before he shackled himself. There were usually 20 to 30 in a row but it varied. “Base people” survived longer than the “new people.” Former soldiers were killed after no longer than a week; the 17th April people somewhat later. Some people were killed directly. Mr. Say remembered famous actors Nop Nem and Kim Nova who were taken to the killing field shortly after their arrival. Mr. Say had to watch over the workers at their jobs between the first and second perimeter fences. If any had escaped, he would have been killed.
It was a difficult day of testimony both for those giving it and for those in the court listening to it.