Defence Counsel Decries “Salami Tactics” of Prosecution
Nuon Chea Defence Counsel Victor Koppe started off the week in good form by raising an issue of some concern. To wit: The number of statements dribbling out from the investigating judges (via the prosecutors) being added to the file from Case 004.
On Friday, Mr. Koppe received notice that he would shortly be sent 20 such statements that have not, as of yet, arrived. He said that “there is a rumor that there are hundreds of statements from Case 004 to be added to the file.” If so, he called this a “serious problem” and wanted to know if this was “salami tactics (feeding in small numbers) or something else.” The defence counsel raised the possibility that the proceedings might have to be suspended until he could read all of the statements and determine how they might affect the examination of witnesses.
Anta Guissé (Khieu Samphan Defence Counsel) was quick to support Mr. Koppe. She, too, needed to know if there was “a problem with the process” and asked for “clarity on the exact number of statements forthcoming.” Without the proper information on numbers, she averred, the defence could not formulate an opinion on how best to proceed. Ms. Guissé demanded “What exactly was requested of the investigating judges?”
Vincent de Wilde defended. After “deploring the debate was occurring now as there is so little time to examine,” the Co-Prosecutor reminded the court that his office was under an obligation to convey the witnesses’ statements to the defence as they may contain exculpatory information. He felt it was “impossible” for him to determine how many more such statements there might be as it is “an ongoing process…not tactics,” and they could work “no more expeditiously than capacity allows.”
While Civil Party International Lead Co-Lawyer Marie Guiraud recognized that the civil party representatives were exactly in the same situation, she pointed out that the interviews must take place in order “to ascertain the truth.”
Mr. Koppe returned to the theme that the prosecutors must know how many statements they have requested to review: “Are there hundreds or what numbers are we dealing with?”
After a bench consultation, Judge Fenz organized a clarification of the issue. First, she enquired as to whether any of the forthcoming documents might impact on today’s witness. Mr. de Wilde thought “No.” Prefacing that “the general situation was unusual, fluid and potentially problematic,” she, too, tried to get a definition of “how many documents are to come.” Again, Mr. de Wilde said he was not able to provide same currently but undertook to have his office disseminate the information to all parties later in the day. He informed the court that some documents involve websites that are being analyzed. Some 60 reports are being revised by the investigating judges and he does not know how many others there may be. When Judge Fenz tried to narrow this down to how many would be coming in the next month that may affect witnesses, Mr. de Wilde said that it “is a secret. The investigating judges don’t let anyone know.” He could say that some are linked to force marriages but that only the investigating judges could answer the greater question.
With that, the Tribunal moved on to the business of the day, the testimony of his Reverence
Em Phoeung. Co-Prosecutor Srea Rattanak began the examination.
When the Khmer Rouge liberated Phnom Penh, Em Phoeungwas ordered by a “boy soldier” tovacate the city and return to his home village. He left at 10:00 P.M., the same night, and after one to two months (he cannot remember exactly how long it took him), he arrived at Ang Roka pagoda in Tram Kok district. He thought because there were so many people on the road, he met with no mistreatment during his trip. Other monks and monk teachers were also at the pagoda with more arriving after him, although he did not count the total. Most had come from Takeo province. On arrival, no orders were given to them, and they spent time collecting vegetables and cooking. Later on, they were instructed to build canals and a dyke. He did construction work while still in monk’s robes. This was not “normal work” for monks to do pre-Khmer Rouge but none of the monks felt they could refuse the order to work. They toiled along with the lay people and for the same hours: 6:00 A.M. to 11:00 A.M. and 1:00 to 6:00 P.M.
Reverence Em confirmed that no Khmer Rouge or cadre offered the monks any respect or gave anything to them. He made it plain they were at the worksite doing labor not at the pagoda where they would be accessible to the people. Monks did carry on the duty of monks to pray and give sermons “but quietly without anyone noticing.” At the beginning, the rules were not so strict on people visiting the temple. But, one or two months after the arrival of “the 17th April people,” the monks could only contact the old people in the area. And only the elderly people would meet with the monks at the pagoda during this time. The old people counselled the monks that they had to work for Angkar.
Before the end of 1976, all monks had been forced out of the monkhood by the Khmer Rouge. At his wat, there was no leaving ceremony performed as would accord with Buddhist practice. Em Phoeung, as he was in charge of the monks, had been called to a meeting. There, he was told Angkar had instructed that “nobody would serve anyone else; everyone, with no exceptions, had to engage in labor; there would be no more free time.” Then the monks were given black clothing and shoes. The meeting had been headed by a commune member who was in charge of the youth. This person was accompanied by militia. The Reverence had known some of the people at the meeting from monthly meetings which were held “to strengthen the stance of youth and everyone else.” They were told in the sessions that there was “no longer a capitalist system; now there was Angkar.”
The Reverence knew 20 monks had disappeared from his pagoda in Phnom Penh but he did not know what happened to most of them. One of his monk friends died. This friend had told him that he knew that three monks had been tortured and killed for opposing Angkar’s instructions.
Em Phoeung was considered a “17th April person” after he was defrocked. He was not asked to write his biography. He was first assigned to work in Ang Roka, then in Kampot province as part of a youth group. When not building canals and dykes, he sometimes did dry season farming. He could not remember the name of his chief or supervisor but did know that they had been subdivided from units into groups. The work quota for a thirty-member group was to build a dyke thirty meters long, two meters deep, and three meters across the top on a five meter wide base, within a month. The Reverence said there was “no way to describe the living conditions. Exposed to forced labor with very little food,(they) endured the conditions to try and stay alive.” When they got sick, they were fed little, just a scoop of rice. Those in the hospital or clinic got different rations.
Co-Prosecutor de Wilde sought to fill in some of the details of what life was like for a monk under the Khmer Rouge. Em Phoeung said the “17th April people” were supervised by the “base people.” When in units, the “base people” stayed with the “17th April people.” Those who worked in the villages did not stay with the “base people.” Reverence Em had noticed some people had disappeared but did not know what happened to those who were sent for “re-education.” Nor did he know their names. He did recall Nok Nem, Kim Nova and their daughter. The movie stars had supported him in Phnom Penh. He did not know what happened to the family. He said that the actors had had no choice but to leave Phnom Penh, that they had not known where Angkar would send them as they did not ask. They had told Angkar the “true story of their past so were taken away and disappeared.”
The monk had heard of Kraing Ta Chan but he had not witnessed anything there as he had no freedom of movement and was under orders to stay in his village. He does not know for sure what happened inside the security center. The Lon Nol official and officers, policemen, teachers and professors were all taken away. He does not know to where or what happened to them. The Khmer Rouge inveigled the professionals into revealing their past histories by telling them that the new regime needed their skills. But some were suspicious. They hide their identities and survived.
The Reverence does not remember any senior leaders visiting, only his supervisors at the worksite. The cadres were followed around by armed militiamen as they went from commune to commune.
The monks were mocked. His 80-year-old monk teacher first told him how he had been in a meeting where Buddhists were taunted by saying: “for thousands of years, monks were like worms and leeches: mad men on top and idiots on bottom.” When he heard this, he had told his elderly teacher not to stay, that “this was very serious.” Later, the description would be repeated during each village and commune meeting he attended.
Mr. de Wilde read into the record another witness’s description of the meeting in which the Ang Roka monks were declared no longer needed and ordered to defrock. The transcript contributed that the chair of the meeting was Khom, one of Ta Mok’s children, who was a leader of Tram Kok district and wife of Ta Muk. Em Phoeung delineated that the defrocking occurred from late 1975 and continued until early 1976 when there were no monks left. The ones defrocked at Ang Roka had been gathered there specifically from other pagodas as well but he does not know how many there were. He knew a monk named Ech who had been head of a pagoda in Tram Kok but he does not know what happened to him. Ech had been the last to leave the monkhood. He also knew Kheav Nou but not what happened to him, either. None of the monks refused defrocking. Others had told them that they would have to leave the monkhood in order to be at peace. Their concern was to obey the orders of Angkar. Reverence Em had learned in a meeting that the nephew of Soy, an 80-year-old chief monk of the Chunn Kreal pagoda was taken away by Angkar for failing to join a youth group as instructed to do by Angkar. He thought that that was the only monk disappeared from that pagoda. The pagoda was turned into a hospital for the salt farm unit and the school became sleeping quarters for the salt farm unit. In 1981, the Venerable monk visited Chunn Kreal pagoda. When he did not see any monks from the pre-Khmer Rouge era and asked where they were, he was told that none had returned and all may have died. Similarly, he was told by a monk at the Ang Preah pagoda who had witnessed it, that a monk had been killed and buried near the pagoda. “The cruel Khmer Rouge only wanted people who did not dare protest against them.”
In the Khmer Rouge period, there were no monks left. Regardless of age, they had all been sent to work. For example, the old made baskets for the young to carry earth. The Khmer Rouge taught that Buddhism led to no progress. The principle they wanted all to adhere to was a culture of work. All people would work; no one would not work and receive food from others. So they turned a majority of the pagodas into prisons and pig pens. The pagodas made good prisons as they were made of concrete and prisoners could be shackled to the walls.
Some monks had moved to Phnom Penh to escape the American bombing but the Reverence was not witness to any of them being injured during the war. None of the monks expected to be defrocked when the city was liberated by the Khmer Rouge. But they were terrified when they were told to take some clothes and their umbrellas and to leave “for seven days.” By early 1976, he did not see any more monks in Ang Roka. After the fall of the regime, he asked around about the monks who used to live with him to no avail.
Before 1976, the Em Phoeung said he did perform Buddhist rituals. On the invitation of cadres who knew he was a former monk, he preached at one group wedding ceremony for 30 couples. And he conducted rites at funerals. After 1976, officiating at funerals also was prohibited and the lay people performed their own rituals and buried their loved ones. Then, the monks did what everyone did: they “did what they could in order to survive.” And they prayed and preached in secret at night.
Reverence Em’s story was different from many. He thinks because he was from the area and well known, when the local people told the cadres not to hurt him, they listened. So, when the village chief said he was old and it was time to get married, he argued that he did not have time to feed a wife because he was working and that “Angkar was magic, food was magic, everything was magic…” and they “agreed that (he) was right.” Then they “ignored” him until the liberation. But, a friend of his, another defrocked monk, was forced to marry and he had heard of others whom he did not know in the same situation.
Nuon Chea Defence Counsel, Suon Visal, wanted clarification of the number of wedding ceremonies at which the Reverence had preached once he was defrocked. There had been only the one but he had provided “typical religious ceremonies” at funerals both for cremations and burials in his village. After 1978, there were no more Buddhists ceremonies until 1979.
The thorough Mr. Koppe explored exactly what the Venerable monk did during the wedding. On the instructions of the village chief, he had been allowed to preach the Buddhist discipline and give his blessings. Reference Em knew nothing about the elaborate Buddhist funerals that had been held for the mothers of Prince Sihanouk and Nuon Chea. Neither was he familiar with Article 20 of the DK Constitution of 1976 read in by Mr. Koppe that guaranteed freedom of religion. He had heard others talk about it but not during the Pol Pot years when they all “kept silent and to (them)selves.”
The Reverence knew that many pagodas were hit during the American bombing, especially some in remote areas. He did not know if Mr. Koppe’s figure of two-thirds of pagodas destroyed during the Lon Nol fighting and the aerial bombardment was correct. The monk knew, though, that all the Buddhists books and manuscripts had been burned or despoiled. He remembered how texts made of palm leaf pages had been ripped apart and used as hats.
The Venerable monk was able to elaborate on the hours worked. His unit never stopped before the set hours of 6:00 A.M. to 6 P.M. with a two hour break mid-day, and, very frequently, worked longer. For instance, during the rainy season they worked late pulling rice seedlings and, during the dry season, on constructing the dykes and dams. Food rations were scarce to 1976. The food improved in 1978 and 1979. Before 1979, rice was provided instead of gruel. The soup remained the same, watery with some local vegetables.
Kong Sam Onn took him back to the meeting where the monks were instructed to defrock. Reverence Em knew there had been other meetings before he returned from Phnom Penh. He did not remember the exact date of the one session on the subject that he had attended. He recalled that there were not many monks there but many lay men and women attended along with the village chiefs and group chiefs. There were no discussions at meetings. They“only listened to the instructions of Angkar. Nobody dared ask a question.” The monks were just given a “short time” to leave the monkhood. They had to go to work or they would not have anything to eat. Some monks had already defrocked before he came back from Phnom Penh. The Reverence left the monkhood in 1976, at the same time as his teacher.
Living conditions for the monks got worse between June, 1975, and late 1975. The villagers had been evacuated and the monks had to support themselves. The offerings were petering out because the people knew when the monks left the monkhood so did not come with alms.
Kong Sam Onn implied several times that the Em Phoeung had left the monkhood of his own free will but, calmly and with great presence, the Reverence insisted that the monks had no free will about it and that the terms “defrock,” “leave,” and “disordain” (sic) that Mr. Kong had used had the same end result. It was made clear that they were to defrock, that “the revolution had nothing for them.” They “had engaged in the process (them)selves because (they) had been told (they) could not stay in the monkhood.” The monks considered it “a forced process.” Interestingly, the Reverence said there had to be a witness to observe the whole procedure of leaving the monkhood “so we would become an ordinary person and not mentally disturbed.” There were other monks there when he went through it before the statutes in the temple, and they were witnesses for each other. His monk teacher witnessed for him. Eventually, the court ordered counsel to move on.
After the break, Mr. Kong made some miscellaneous enquiries starting with what work the monks were assigned other than construction. They transplanted cassava and grew vegetables. The Reverence was quite clear it was a violation of Buddhist disciplines as it was prohibited for them “to engage in that nature of work.”
When Em Phoeung left Ang Rokar he was sent to Somrong cooperative in Kampot province. He spent the rest of the time until the liberation in a mobile unit.
The Reverence said he did not know for sure who Angkar was. They were just informed that instructions came from the “upper echelon,” the center of Angkar, and warned not to ask too many questions about Angkar. Contact with cadres was rare. Even contact with family members was rare. Even at night, no dared talk to one other. “Talking could put (them) in a risky situation.”
At the end of his testimony, Judge Nil Nonn thanked the Reverence for his testimony and excused him from the stand.
Mr. Koppe commanded the floor to discuss the afternoon email that had been sent to all parties concerning the morning issue of the slow stream release of documents. The counsel revealed to the Chamber that, indeed, there was a basis for concern as the prosecution had revealed that some 334 documents were yet unread by the defence (with some 279 of them yet to even be released). Mr. Koppe had had only time to take a brief look at the 20 released today but it was sufficient that he could see that some of documents were, indeed, relevant to several upcoming witnesses. He asked for a postponement to allow time to receive all the papers and to read them all. The counsel remarked that the number was “in stark contrast” to what he had been told would be “a few documents coming.”
Anta Guissé was next into the fray expressing concerns about “the interpretation of what is relevant.” She maintained that “several witnesses speaking about the same place forms a confrontation between them than will enrich the discussion.” Succinctly, she pled that the defence “needs visibility of the documents that will then allow (them) to examine the witnesses.”
She suggested that, since the documents will impact preparation of witnesses to come, the solution was to postpone their testimony to allow time to properly prepare a defence.
Kong Sam Onn weighed in with a different complaint. His team has been having difficulty familiarizing themselves with Cases 003 and 004 because they receive only one copy of the documents due to the confidentially rules. He requested that the Chamber be flexible so that they can have access to the case file.
Judge Fenz informed the courtroom that today’s email stated that the prosecutors would be making a submission on the issue of document production on Monday, February 23, 2015. She wanted to know in the interim, when the prosecutors wrote that another 89 documents would be released “shortly,” what “shortly” meant. And when were the 190 documents expected? Were they to be released in installments?
Mr. de Wilde “clarified the process.” He contended that it was a difficult task for the OCP to forward documents to parties. He noted that of the 89 statements, only two involved Tram Kok and Kraing Ta Chan and none were in regard to witnesses on the court list. Of the 190-document group, a conclusion was more complicated. The prosecutor admitted he “(did) not have everything in hand,” and, when he did, he would need to read the documents to see (a) if they pertained to the case and (b) if they contained exculpatory evidence. He explained that then the investigating judges would examine the co-prosecutors’ requests for release of documents. As this can take a long time, the prosecutors draw the investigating judges’ attention to the priority items. His office receives papers frequently, reads them quickly and, as best as they can, asks permission for transmission to the other parties. Sometimes, there is an unavoidable a delay until other parties are interviewed. Simply put, Mr. de Wilde did not know when the 190 documents would be forthcoming.
Mr. de Wilde objected to Mr. Koppe’s implying surprise at the number of documents yet to come because the prosecutors had told all parties that there were at least 267 more statements to come some time ago. He objected to any delay or postponement.
Regarding Mr. Kong problems with access, Mr. de Wilde said it was out of the prosecutors’ control. Investigating judges make such decisions, not they, and all “are obliged to abide by confidentiality provisions.”
Ms. Guiraud understood the defence concerns but “believe(s) we can move ahead.” She objected to a new postponement and requested the court not act until they received the additional information due from the co-prosecutors’ office on February 23, 2015.
In reply, Mr. Koppe argued that a decision on Monday is too late as on Wednesday or Thursday “an important cadre is to testify.” He also was riled at Mr. de Wilde’s comment that he was “pretending to be surprised” as he had been told by Co-Prosecutor Dale Lysak to expect “a pretty small number…not almost 300 documents.”
Judge Fenz canvassed the parties and all agreed that there was not a problem for tomorrow’s witness, but Mr. Koppe emphasized that his preliminary reading did indicate “an impact” on the Wednesday-Thursday witness.
Mr. de Wilde offered a further explanation that Mr. Lysak statement had been referring to the first part of the trial only.
With that, and the sitting day drawing to a close, the President had the next witness ushered in and began to qualify him. Phneou Yav, is a 47-year-old rice farmer from Tram Kok, Takeo province. He is married with five daughters and one son. He declared that he has no conflicts and had taken an oath. After Judge Nil apprised him of his right to refuse to answer questions that might be self-incriminating, the President informed him that, due to the lateness of the hour, and with the preliminaries out of the way, the substance of his testimony would be heard tomorrow.
Court adjourned.