Admissibility of Evidence Dominates Hearing
Admissibility of evidence dominated the agenda at the ECCC proceedings in Case 002/02 today. Through the parry and trust of technical arguments, counsel vied to shape the testimony to favor their particular side of the case. The witness, Sao Hean, had little information to add to the court record that had not already been said. But, through clever questioning, the defence was able to ameliorate the effect of various accusations based on hearsay that had been made against their clients.
Mr. Sao Hean continued his evidence with relating what he knew about his older brother’s disappearance. A few days after the fall of Phnom Penh, Mr. Sao’s sibling arrived back at their home village in Tram Kok. About three days later, the witness was told by his wife that “the village chief had invited (his brother) for re-education.” His mother, wife and brother’s family were present at the incident. From his sister-in-law, he learned militia had come to arrest his brother whom they took away in a horse cart. A neighbor told him that he had been killed at Kraing Ta Chan. Mr. Sao could not recall the exact date his brother was arrested as he “didn’t know what the days of the week were. The focus was on the work in the rice fields.” Neither did he know his brother’s rank as a Lon Nol soldier.
Co-Prosecutor Travis Farr read in from Mr. Sao’s interview with court investigators his prior comment about someone sent to carry leaves who disappeared and that the witness had said that “many others had also disappeared” after being taken by militia. Sao Hean said Seam was the chairman of the militia in Tram Kok and remarked that Seam “deployed subordinates to get any person he wanted.”
Khieu Samphan Defence Counsel Anta Guissé and Mr. Farr sparred over the relevancy of examining Mr. Sao over a document concerning another arrest. The dispute proved futile in any event as Mr. Sao turned out not know the subject, Amrat Mart (spelling?), a sergeant who had criticized Angkar.
Mr. Sao could elaborate on what transpired when property rights had been eliminated. The village chief convened a meeting at which he announced that “there would be no more private ownership of land, or cattle or cooking utilities, et cetera.” The people were against the collective ownership but feared the village chief and his militia.
The unit chief, Ta Mom, had assigned Sao Hean to work in the rice fields. He built dykes, ploughed rice fields, planted vegetables, did dry season farming: “all sorts of work in the fields.”
The farmers worked from 4:00 A.M. until they heard the bell rung at noon, the time that their assigned quota had to be completed. In the afternoon, he tended to the cows to ensure they were properly fed. At night, after the meal, he pulled rice seedlings. His ‘day’ usually ended around 7:00 P.M. to 8:00 P.M. He did not work past that time.
When asked if he was free to leave the work unit if he wished to, Mr. Sao was adamant: “No, absolutely not.” He never asked permission to go anywhere because he so was afraid of the unit chief he did not want even to speak to him. He just listened when the unit chief addressed him. The witness also said that he only spoke a few words a day to the other workers. Mr. Sao said his fear of the unit chief was based on seeing people taken away.
Kong Sam Onn objected when Mr. Farr inquired as to what happened if workers did not reach their work quota calling it hypothetical. The Co-Prosecutor countered that it was not hypothetical, that he “was asking about concrete cases of failure to reach quotas.” Mr. Sao did not know of any punishment meted out for such an infraction. Another confrontation arose over soliciting Mr. Sao’s opinion, as an experienced rice farmer, as to whether Angkar setting a goal of three to four tonnes of rice per hectare was reasonable or not. Mr. Koppe, Nuon Chea Defence Counsel, objected on the basis that “the question goes beyond the capabilities of the witness as it depends on all kinds of biological circumstances.” He cited as an example that the Chinese now get 14.8 tonnes of rice to the hectare. Summarily, the counsel felt it was an expert question. Judge Fenz acknowledged the Defence’s reasoning, but ruled that it does not mean that the witness was not in a position to answer the question. Mr. Sao did not think that they could have produced three to four tonnes of rice per hectare.
The “base people” and “17th April people” went to the communal kitchen to get their meals. They shared a plate of rice and a large bowl of soup among ten people. This amount of food “did not satisfy their hunger.” The workers could grow vegetables and fruit themselves but the people from the economic section would collect the food.
Mr. Koppe objected to Mr. Sao being asked about the effect of the rations on the workers, that the witness could only speak to his own experience and that of others with which he had had direct contact. Sao Hean had observed that his fellow workers became weak and that sometimes their bodies had become swollen. Some went to the hospital and disappeared but he did not know exactly what happened to them. In his opinion, the medical care was inadequate. (Mr. Koppe objected that Mr. Sao would not know as he was not a medic but he was overruled). At times, a nurse would come to distribute “locally-made medicines” to the group but there were “no modern medicines for treatment.” They “absolutely did not complain” to anyone about the standard of health care. They “just complained among (them)selves.” They were afraid that “if the Khmer Rouge heard (any complaints) the person would disappear.”
Mr. Sao said that “in practice, the unit chief kept threatening people in terms” of them being “enemies.” In meetings, the unit chief would “reiterate to all in attendance” that they had to “sweep clean internal enemies.” “If someone broke a plough or a spoon…or stole, they were internal enemies within the cooperative.” The witness did not know of anyone arrested for breaking a plough or a spoon. He did state that “they would have other reasons for arresting people,” but the Co-Prosecutor did not pick up on this.
No one else but the unit chief would raise issues at meetings. They others were too scared.
Ms. Guissé interrupted the examination to ask what the link was between the witness and a document that the Co-Prosecutor wanted to admit concerning someone arrested over complaints about rice rations. Mr. Farr contended that adequate foundation had been laid. He was hoping that the details of the incident would jog the witness’s memory. Mr. Koppe contributed that, “if Kraing Ta Chan documents are authentic, the documents show that no one was arrested just for complaining over the food. There was always a larger context such as stealing from the community.” Ms. Guissé countered that the Co-Prosecutor could not refresh a witness this way because “mentioning the information is providing information that the witness did not have before,” and, further, that this was not the previous practice of the court. Mr. Farr argued that the details would present a fuller picture than what the witness may remember and his questions were about the incident more than about a particular person. Judge Lavergne had the last word:
“When a document is relevant to examining a witness on something he is familiar with, it is allowed.”
But, as it transpired, nothing resulted from the discussion. Mr. Sao did not know of either Nonn or Sok Say who had complained he “had been instructed to work like an animal and asked why the rations were little when the storehouse was full of rice.” Mr. Sao did know that the Buddhist statues and books “were taken away.” He said that some of the books were used to wrap tobacco to smoke. One of the pagodas had been turned into a hospital and another into a workplace. The monks were all defrocked. He had seen a group of them walking on the road on the way to being defrocked. Sao Hean did not know what the Angk Rokar pagoda had been used for during the regime but “all kinds of religion were prohibited. (They) were not allowed to practice Buddhism and were told not to believe in superstition.” The unit chief and group chief would repeatedly tell them that they “should not pray to spirit statues.”
Mr. Farr asked the witness to define what a “resolution” was. Mr. Sao said “it meant being asked if whether one would accept the partner for life. If yes, it meant a resolution was made.” The village chief, unit chief and group chief asked the parties if they would accept. He did not know of anyone who refused to do so, and he did not know why relatives were not allowed at the ceremonies.
After the break, Mr. Farr had only a couple of question about a widow’s unit which Mr. Sao was aware “referred to women whose husbands’ had been taken away or had died. Women with young children would go in a different group.” Mr. Sao did not know any of four women who had been labelled “enemies” after a variety of accusations were levied against them.
National Deputy Co-Prosecutor Song Chorvoin had Ta San on her mind. Mr. Sao said Ta San was, initially, the district secretary and, later, the district chief. He did not know who Ta San’s deputies were and he did not remember who had been the prior district chief. The witness did not think that the chief of the cooperative changed during the 1975-1979 period.
Civil Party Co-Lawyer Ty Srinna inquired about freedom of movement. Succinctly, Mr. Sao stated that neither “base people” nor “new people” had any rights of movement. He did not know of any authorization for them to travel from one place to another having been available. As a consequence, there were no relationships (with family or otherwise) between people in different cooperatives.
After the fall of Phnom Penh and the new people arrived in the village, they lived with relatives. Those without relatives built their own huts. At the beginning of the regime, some could ask to return to their home villages to live with their relatives there, but after the units were formed, this was not allowed. Wherever they lived, once property became communal, their accommodation was only held on a temporary basis as there was no private ownership. Subsequently to the cooperatives being created, both “old people” and “new people” would work together supervised by the unit chief and group chiefs (not militia). Mr. Sao did not know why the supervision was necessary only that “during the regime, it was common practice to supervise.” He had not witnessed any one become ill in his ploughing unit but had heard of people “disappearing” for just a day or two because they had fever or diarrhea
Mr. Sao had no idea what the food rations were for cadre or militiamen. He only knew what they were for the people in his group and unit. They would get cooked steamed rice which ten of them would share, and “No, (it was) not enough.” The rice harvest was stored in a long building (20 meters by 10 meters) and not distributed to the people. He did not know if the rice was sent anywhere else.
Meetings were held frequently (but not every day) for each unit and each group. For example, when a worksite was moved, a meeting would be held to inform the workers. Every time a new plan was issued, there would be a meeting. The unit chief would chair the major meetings; group chiefs chaired small meetings. Major meetings were seldom held but unit meetings at the village level were held often. They received their work orders from the unit chief. Mr. Sao never saw any leaders at these meetings or any other visits by leaders.
Ms. Ty jumped into the issue of the fear that complaining would lead to disappearance. Mr. Sao was adamant he “knew people who disappeared.” And Mr. Sao was clear that he “was personally fearful, afraid that one day it would be (his) turn.” He “believed that the others had the same feeling” as they “had talked quietly about the disappearances” and they, too, were fearful.
Mr. Sao was not aware of the Security Office in the area as it was “a very secret issue.” He only knew of Kraing Ta Chan after 1979. He did not see any mass graves or pits during the Khmer Rouge years.
Civil Party Lead Co-Lawyer Marie Guiraud was curious about the militiamen. Mr. Sao said there was a group of them in the commune. Their role, as he “experienced it, was to monitor the activity of the people when they were in their houses.” He did not see them eavesdropping on newlyweds. He thought their function was to see if anyone had stolen food or anything else. He does not know how many militiamen there were or their age range. The witness saw the militia only occasionally because he “was mostly engaged at worksites outside of the village.” He remembered they carried rifles but not the model number of the weapons.
Sao Hean confirmed for Mr. Koppe that he did not hear about Kraing Ta Chan and he did not know where his brother had been taken until after 1979. After the regime fell, all who lost family went to Kraing Ta Chan to attend “the ritual for lost souls.” Mr. Sao did not find his brother’s name in the prison records and is still not sure that his brother ended up there.
Mr. Sao defined “disappearance” as when someone disappeared and then returned. If someone had not come back, he said he would not know if they were transferred. But “disappeared” could mean they went away and did not come back.
Sao Hean confirmed that the unit chief was “not a nice man.” Before Mr. Koppe could ask the witness if certain words (no longer much used in spoken Khmer) described the unit chief, a row developed over Mr. Koppe’s potential reference to a document not on the interface. Mr. Koppe protested that the matter of whether the behavior of the cadres was due to individual behavior or by directive from within the party had just come up during the examination that morning. He added that the document he wanted to use was a well-known one, a Revolutionary Flag from 1978. Marie Guiraud “objected on a matter of principle” to documents not on the interface. “The procedure doesn’t make sense if there are exceptions every day.” Mr. Farr said he did not know if he objected or not without taking a look at the document and offered to do so over the lunch break. The President was in accord with letting all of the parties review the document before he ruled. Judge Fenz wondered why Mr. Koppe needed the document at all because, if the issue went to “the personality of the person, he could just ask an open question.”
Mr. Koppe’s rationale: “If the top of CPK thought that a certain position needed to be taken, then that is a legal question.” He wanted to get as “close as possible to the attitude of the unit and group chiefs by using words (given in the article) used to describe the lower level. The top did not want the cadres to behave in a certain way.”
Ms. Guiraud understood that the defence counsel might need to call on documents not in the interface but thought that “the Chamber had to be clear about the exceptions so that the other parties would know that they also could enjoy the possibility, the same opportunity, to use documents not put on the interface the day before.”
President Nil Nonn’s first business after lunch was to announce that Judge Karopkin would be absent for the session due to a health issue.
Mr. Farr told the court that he did not have an objection to the specific use of the document in question but that that would not always be the case. If the document had been longer or he had had less time to review it, he would object as “the lack of notice causes prejudice.” He did not accept the idea that everyone is familiar with all of the documents on the case file. He opined that, given the voluminous nature of the file, there were just too many documents for anyone to be fully apprised of all the subtleties of every document. The Co-Prosecutor concluded: “Flexibility in procedure rules, but rules need to be rules and exceptions need to be exceptions.”
Mr. Koppe replied that he was taken aback by this as the prosecutors had referenced such documents last week. He had not meant to surprise the Chamber. The issue had come up in examination and was not one that he had anticipated in preparing the witness. He requested that the court make a general ruling to the effect that they should still be able to use a well-known document.
Mr. Farr challenged his colleague stating that his intended use (to argue that cadre behavior did not meet the higher standard of Angkar policy) did not arise in the day’s testimony but was foreseeable before the present witness took the stand.
Marie Guiraud adopted the same position as Mr. Koppe that there should be a principle rule along the lines that: “there is a duty to notify the parties, in exceptional circumstances it won’t be a problem, the rule should be the same for everyone but that the principle of adversarial debate be affirmed and the documents go on the interface except in exceptional circumstances.” She asked the court “to rule on the basis of principle.” Otherwise, she did not have a problem with this document as an exception.
Judge Fenz summarized: “The parties did not object today to the use of this document for the reasons given but would appreciate a general directive on the use of the interface.”
Mr. Koppe brought up a cogent point: As the defence counsel “are hardly ever in examination-in-chief, (they) are in a different position than the other parties.”
The lawyer then addressed the witness asking him if the following words described the behavior of the unit and group chiefs:
“authoritarian?” Mr. Sao said they were ordered to do work every day.
“behaving like a ‘mandarin’?” The witness explained that it was the position of the unit committee to use the workers to meet quotas set by Angkar.
“militaristic? “ Yes, he thought they were militaristic.
“single-minded?” Mr. Sao would not describe the unit chief this way and he “could not say” if “bureaucratic” or “liberal” applied.
Mr. Koppe told the witness that he “was trying to understand the interaction that had led to the fear.” Counsel asked him to describe in his own words the behavior of the chiefs to the group and unit members. Mr. Sao would say no more than “when there was an issue, they feared to have a discussion.” What had made them fearful? “Because of what (they) saw: the disappearances. Of course, we presumed they died.” Counsel questioned this because, before lunch, “it had been established that the disappearances meant going away and not coming back, not necessarily anything harmful.” Mr. Sao was steadfast: “People (he) had worked with had disappeared and never returned.” That had made him fearful.
Counsel moved on to food. He repeated the testimony of a prior witness who had reported that his unit was fed fish, vegetables and sometimes beef and pork. Mr. Sao said his experience was somewhat different. They had their own vegetables (cucumber and pumpkin, for example) but it was rare for them to have pork or beef. They had no big ponds or rivers in his area, so there would be only one or two pieces of fish in a large bowl of soup.
The Khieu Samphan defence team had no questions for Sao Hean.
The President expressed the gratitude of the court to Mr. Sao for his testimony and excused him.
Judge Nil Nonn then announced that the court had received a request for protective measures from the next witness. After a short break to deliberate, the President called an adjournment. They could not proceed with the next witness until the Chamber received WESU’s investigation report concerning the need for protection. Further, tomorrow morning, the court would be holding “a non-public hearing” on the request for protective measures.