Demand for a Confrontation of Opposing Witnesses
Saut Saing had a difficult time in court. It was awkward enough when his testimony conflicted with dire accusations made against him by other members of his guard unit that he was one of the “cruelest” of the cadres at Kraing Ta Chan. His credibility took even more of a hit when what Saut Saing swore to in one minute he would retract in the next. It is important because either Saut Saing’s fellow guards are lying about the crimes committed at the security center (for which Nuon Chea and Khieu Samphan may be found ultimately responsible) or Mr. Saut is.
Victor Koppe, Nuon Chea Defence Counsel, picked up the thread of his cross-examination searching for entries to his address book. He asked Saut Saing if the guard, Touch (“Big Duch”) is alive and where he lived. The witness said Duch had been resident on the Leay Baur commune, but he did not know if he still was or if he was still alive. Similarly, he has not heard from Ouk since 1979, and is not sure whether he still resides in Kampong Speu province or not. Mr. Saut was able to identify “Ka Mu Bei”(spelling?) as a child of Yeay Surat. Roun had been at Kraing Ta Chan, but he had “no idea” if she had had a love affair with Ta An. He had supervised Roun at her work carrying earth from the pond to the rice fields. The witness did not know whether she and the medic, Han, were friends or colleagues, but they had lived and worked together without conflict. He corrected Mr. Koppe’s misunderstanding of yesterday that he had seen Rat. It was Rat’s daughter, Sokar, who had come to visit him in 2000.
Saut Saing was much disquieted when Mr. Koppe read in from Say Sen’s transcript that Saing and Big Duch were the “cruelest of the soldiers.” (They were accused of kicking or hitting the prisoners if they made even a minor mistake). Mr. Saut averred that he “never laid a hand on any of them or resorted to violence.” He argued that if he had, “revenge would have been taken on (him) and (he) would not have survived to today.” (Ed. Note: He did not explain why, then, he was testifying under the protective measures of having his voice and image distorted and his address and other personal particulars kept confidential). Neither had he ever seen Duch beat anyone when they had lived together and were on the same work roster. Mr. Lysak objected to Mr. Koppe asking the witness for a characterization on whether Say Sen had been telling the truth because “the facts” of the case that Say Sen had presented to the court were directly opposite to Mr. Saut’s. The Co-Prosecutor said it “was not up to the witness to make a judgment over the credibility of another witness.” The defence counsel replied that it was “a perfectly appropriate line of questioning in relation to the specific topic.” It was an argument that would re-emerge frequently during the cross-examination. The President took the middle ground and warned Mr. Koppe to be mindful of his wording. The lawyer was warned to rephrase or the court would exercise its discretion and reject it or instruct the witness not to answer.
Mr. Koppe kept it short: “Was Say Sen lying?” Saut Saing said that he was still living in his native village (name withheld as per protective measures order), something he “would not dare to do,” if he were guilty as accused by Say Sen. The President stepped in before he could elaborate further directing the witness not to answer. The court reminded the counsel that “assessing credibility is the burden of the Chamber…avoid this line of questioning.” A not-very- chastised-looking defence counsel moved onto reading in Say Sen’s “gruesome testimony of Mr. Saut’s cruel actions,” most pointedly, the accusation that Saut Saing had “smashed” the skull of a young child. Mr. Saut, “reject(ed) the statement.” He was adamant that he had “never killed any young baby or committed cruelty there.” Mr. Saut was neither involved in the killing nor knew who was or when it happened. When Mr. Saut was challenged to confirm whether he was telling the truth whilst Say Sen was not, Mr. Lysak was quick to raise to the court that Mr. Koppe had found “a different way of asking the same thing, that it was not for the witness to provide opinions on other’s testimony.” Mr. Koppe felt that the witness “was entitled to react to damaging testimony,” but the President disagreed on the basis that the witness was being instructed “to give weight to testimony.”
Saut Saing had not run into Say Sen recently. In fact, not since 1979, even though their houses are close together. Contrary to what Mr. Say had said, Mr. Saut denied being present for Say Sen’s child’s wedding procession a month and a half ago. And, as he had not met with Say Sen, he advanced that he could not have asked Say Sen to describe him at the ECCC as a victim rather than a perpetrator.
Retreating to what he thought would be more productive topic, Mr. Koppe explored the torture that Saut Saing had reported seeing at Kraing Ta Chan. The witness could not recall when the incidents with the plastic bag happened. Initially, Mr. Saut testified that he saw plastic used on more than one occasion when he was cooking. He specifically could recall the Chief of the prison interrogating a man whose name he did not know and could not see well. The witness maintained he could observe “plastic taken from a raincoat to cover his head and eyes so he would confess,” but could not hear the interrogation. Then he backtracked stating that there was only one incident and he was “guess(ing)” as to what happened. Mr. Saut said he could not discuss it with the other guards at the time, “never. We were on our own business.” (Translation: No one discussed anything with anyone else as it might be considered critical of Angkar).
The cautious counsel re-visited the witness’s claim of yesterday that he had “a glimpse” of an execution. After five minutes or so of back and forth with the witness at various points claiming he had seen executions, it came down to one incident, a former soldier who had deserted. Mr. Saut had known Bong Chea (spelling?) when they were in the army together in Tram Kok. After saying that the incident happened at perhaps “2:00PM or 3:00PM,” Saut Saing did an about face on the whole story. Mr. Saut then testified that he had only “guessed it from (his) heart that he had been killed,” because when he had returned from guard duty outside the compound, Bong Chea had disappeared. He finally admitted he did not “glimpse” Gong Chea’s execution, or any other, but insisted that Bong Chea had been executed that day.
The defence counsel moved on to miscellaneous matters concerning prisoners. Saut Saing had never talked to prisoners before they were sent for execution. There was a roster of guards for each of the detention buildings who would count the number of prisoners. All of the guards were involved in the shackling and unshackling. Mr. Saut had not known the headcount on any particular day or month. The guards only counted when there was a shift change of the guards. The witness could not speak for the other guards as each soldier “was assigned to specific targets,” but he did not dig burial pits, strip the clothes off of dead bodies or carry dead bodies. That was the work of staff. He did not know whether Say Sen had been tasked with any of these things.
After the break, the President announced that Witness 2TCCP271, Say Sen, had withdrawn his request for protective measures and that, therefore, he would now appear in open session to complete the testimony he started on February 5, 2015. Judge Nil Nonn cautioned that this development did not affect the Chamber’s ruling regarding hearing testimony on sexual assaults. As succinctly summarized by Judge Lavergne, Anta Guissé, Khieu Samphan defence counsel, had applied for the transcripts of the closed session on Mr. Say’s testimony to be made public as ruling had been made for an open session. On hearing the advice of Marie Guiraud, Civil Party Lead Co-Lawyer, that counsel for Say Sen had no objection to the application, the Chamber granted the request.
Mr. Koppe returned to his laundry list of details. Saut Saing had not seen any other guards or cadres excising the livers or gallbladders of executed prisoners. The witness was able to report that Sim is still alive and living in the Trapaeng Kom area, in the Samroeng commune, Tram Kok District, but he had not seen him recently. Mr. Saut was not aware of the loudspeakers reported by Sim. Neither had he seen any dungeon-like hole or a strychnine tree. Saut Saing confirmed that his responses were all true and the floor was turned over to Kong Sam Onn, Khieu Samphan Defence Counsel.
Mr. Kong inquired about why Saut Saing had changed his status from witness to civil party. Mr. Saut explained that he had filed his application a long time ago. It had been recommended that he go to the Tribunal for a lawyer. There, it was suggested that he should be a civil party as he had suffered the loss of his father and siblings. He emphasized that it was he, himself, who had made the decision that he wanted to be a civil party. When counsel explored whether the witness was in charge of any action in relation to the killings at Kraing Ta Chan, Mr. Saut evaded answering directly: he “did (his) duty following orders from others.”A follow up question elicited that the witness considered he was responsible only for guarding, preparing lunch for the prisoners, et cetera.
Ms. Guiraud objected to Mr. Kong exploring further the civil party’s motivation behind his change in status. As a procedural clarification, she noted that the Office of the Co-Investigating Judges had issued an order on the decision in August, 2010, and that there was no appeal against that ruling at this time.
Mr. Kong sought to establish the numbers of prisoners at Kraing Ta Chan, but Saut Saing was not much help. The witness had learned from Ta Dam that the number may have been higher under Ta Cheng (spelling?) when there were a lot of Lon Nol soldiers at the security center. He had never counted the number of graves.
Saut Saing told Anta Guissé that he had never met Ta Chem, but that “everybody knew who the District Chief was because it was a senior position.” The witness was not aware that Ta Chem had gone to the Eastern Zone in 1976, and denied ever telling the judges that. Mr. Saut knew that the District Chief had the power to arrest because Ta An used to send letters to the District Office. He was not in the loop as to who was in overall charge of Kraing Ta Chan, whether this was the district or sector level. Neither did he recollect when Ta Nouv became Sector Secretary. He did not know Ta Rous and Ta Khorn’s level, but said they only contacted senior people like Ta An and Ta Cheng. Mr. Saut was unable to estimate how many times he saw them, even in a month. They “came when they needed to come,” and he did not know the nature of their visits to the prison. Ho Heng “did not ring a bell.” Saut Saing confirmed that he was in charge of taking care of detainees who worked, and would count them in and out to ensure the headcount remained the same. He supervised them working in the field simultaneously with his guard duties at the fence post. The number varied: five to seven, never more than the maximum ten.
Mr. Saut’s jobs inside the compound included cooking rice and feeding the pigs. He said he had access to Ta An and Ta Penh’s offices but it was unclear why his declared duties would allow such an opportunity.
After lunch, Ms. Guissé continued with the witness’s personal history. Saut Saing had worked on the Trabek Dam in 1970, when he was in the youth unit. His father died in 1973. And his superiors had brought to his attention the 12 Revolutionary Commandments (the 12 moral principles), including the one on not committing acts of moral misconduct with women.
Mr. Saut refuted Say Sen’s statement that the witness was Duch’s immediate supervisor with 12 soldiers under him, and most particularly Mr. Say’s testimony that Mr. Saut and Duch had raped women and put grenades in their vaginas. No one has laid any charges against Saut Saing and not against Duch either, as far as he knew.
The defence counsel brought up the injuries that Saut Saing had listed as suffering on his personal form. The witness said he had headaches and pain from battle wounds on his right side and right knee sustained fighting Lon Nol soldiers in 1973, pre-Kraing Ta Chan. He lost a cousin at the security center, a detail that Ms. Guissé tested since he had not put it on his information sheet. Mr. Saut explained that he had just wanted to mention his father who died in 1973 in his application.
Judge Lavergne was most interested in following up on the family members who had had a relationship with Kraing Ta Chan. Apparently, this was only the one cousin, a former Lon Nol soldier, the Bong Chea referenced earlier as having disappeared and deduced as executed by Mr. Saut. (“When an individual disappeared, he had died.”) No one at the prison had known the two men were blood relatives.
As this was the conclusion of his testimony, the President offered Saut Saing the Civil Party privilege of making a Statement of Impact concerning how the crimes the two accused had afflicted on him had affected him physically, materially and emotionally.
Saut Saing said he “felt remorse” for the loss of life of his father and relatives killed during the Khmer Rouge years. He cannot accept their deaths and voiced an appeal to the state for reparations to build (Translation error: missing word, perhaps ‘memorials’), throughout the country so no one would forget what happened. The Cambodians had engaged in “physical fighting” and done without sufficient food in the hope for a better future. “But it was to the contrary.” He beseeched the authorities “to find who was responsible for killing combatants (sic) throughout the country.”
Judge Nil Nonn thanked Saut Saing for his time and “contribution to ascertaining the truth,” and excused him from the proceedings. Say Sen was called to complete his ‘day in court.’
Under the Civil Party Co-Lawyer’s probing, Say Sen explained to the Chamber that he had withdrawn his application for protective measures as he did “not fear anything anymore as (his) testimony has been published nationwide.”
Mr. Say was mindful that the relationship he has with all of his jailers has changed. They were “absolute then and their behavior now is so much different.” As an example, he cited that Ta Chen (whom he identified as the first chief of Kraing Ta Chan), now considers him “as a son.” Say Sen averred that even though he had been beaten and tortured, he held no bad feelings because “they did what they were ordered to do.”
There had been no force or coercion compelling Say Sen to testify at the Tribunal. He wanted to do it to “shed light on what happened under the regime…so we all can search for the truth.” There is no benefit in it for him but he acted “on behalf of the lost souls.”
Mr. Say recognized a photograph Co-Prosecutor Vincent de Wilde showed him of Saut Saing as a former soldier at Kraing Ta Chan he had known under the name of “Sieng.” Say Sen confirmed the testimony of other witnesses that with few exceptions, all the prisoners at the security center had been killed. Executions were carried out by staff: Ta An Ta Penh, Ta Chen, Moeun, Sieng and Big Duch. Mr. de Wilde then embarked on a read in that caused Mr. Koppe to complain that he had gone on “a fifteen minute review,” “a crash course in what the testimony has been,” and “a closing submission,” with which the counsel said he could not “keep up.” Further, Mr. Koppe noted that he had a different recollection as to what the guards whose transcripts were quoted saw. Mr. de Wilde defended that he was recapping for the civil party what other witnesses had said because all of these witnesses had accused Mr. Say of lying. A bench huddle later, Judge Fenz defined that it was “not an issue of law; it is an issue of methodology.” And she could not keep up either. Pointing out that there are time limits, she suggested that the Co-Prosecutor cite two or three excerpts and then pose a question.
Mr. de Wilde developed an economy of words, and asked if Say Sen agreed that the security center guards had nothing to do with interrogations or executions. “Not true,” held Mr. Say. After they received their orders, Suan, Son, Sim and Little Duch would arrest and execute prisoners. He named Ta Chhieng, Moeun, Ta An, Ta Penh, Big Duch and Sieng (name?) as Communist Party of Kampuchea members. Ta An, Ta Penh and Ta Cheng gave the orders. The witness did not know what happened if their orders were not obeyed nor did he know how orders were implemented.
The guards met the new prisoners at the exterior perimeter and took them to detention. He, himself, would guard one or two prisoners while they farmed. The guards rotated their duties. For example, Little Duch or Sim would accompany the prisoners to interrogation one day and different guards would do it the next. The guards would sit on big pieces of wood waiting for the prisoners to complete interrogation and then take them back to the detention buildings. The soldiers would use clubs and plastic over eyes to torture the prisoners. “Everyone working in Kraing Ta Chan was a perpetrator.” The guards took the prisoners to be executed, and “in general,” soldiers were involved in the executions. They did “the dirty work” of beatings and executions.
Say Sen affirmed that, indeed, there were palm trees near the execution site but that now only one remains standing inside the compound. There were many more outside at the first perimeter fence. He would climb more than ten palms within the compound. All of the guards knew that he had made palm juice. The witness recognized in OCIJ photos the three palms trees where the little girls were killed, and pointed out the palm from which he had observed the massacres. At this, Mr. Koppe objected that the Co-Prosecutor was leading the witness, that he “shows a tree and then directs him to a map to tick the box.” Mr. de Wilde objected to the objection. He was only showing where the girls were executed on the plan. He felt there was no basis for an objection. Neither did the President who ruled the question appropriate as it was an OCIJ document.
With that, Mr. Say indicated a spot outside the first perimeter fence but inside the second, 50 to 60 meters from the first fence. The witness said that there could be more than 10,000 bodies buried at Kraing Ta Chan. When he had visited, they had already found that number of skeletons and there were many more graves in the area to be dug up. Ta Chen, Kar and he had filled 20 to 30 pits, one to one and half meters deep, near where the children were killed, 10 to 20 bodies in each. When the bodies swelled up, they would crack open the pits. When the smell got bad, he would have to go and re-cover them. When the bodies had decomposed sufficiently, the land would slump. Four or five more people would be executed and buried on the top of the pits which he then would be ordered to cover.
Say Sen was acquainted with Ho, but had not known for sure that he was a messenger.
Mr. Say could not tell Mr. Koppe if there is a difference between the number of skulls counted at the Kraing Ta Chan site and those in the memorial stupa. He confirmed that he had had a ten- minute talk with a with an OCIJ investigator after his February 6th, testimony. They discussed his worries about appearing before the Tribunal, and that Rat had been “physically touched” by Duch but that that was all that had happened to her. Mr. Say had never discussed sexual assaults with Roun, but he knew she had gone into the forest with Ta An after they had had a love affair at Kraing Ta Chan. Mr. Koppe was excited to learn that Roun is alive and living in Kompot province, and that her friend, Han, is living north of Ang Roka. The kicker: Say Sen knows their exact addresses. Judge Fenz directed that a court official assist the illiterate witness by writing these down on a piece of paper. The civil party co-lawyer objected to this line of questioning on addresses on the grounds that it is not related to the case file. Mr. Koppe shot back that it was very relevant, that both of the women were at Kraing Ta Chan and their names are to be found on “possible Kraing Ta Chan documents.” The Bench agreed with him. Mr. Lysak helpfully referred the interested parties to where in the court documents one of the witness’s full name and nickname could be found.
The defence counsel was not so lucky with Set Yen. Say Sen had never heard of her. Also unproductive were queries on whether Rat, Roun and Han would have been in a position to see the same things about the guards as he had, but the witness did not “dare to say anything about this.” He reiterated that the guards had arrest and execution duties. For example, they went to Srei Ranong and villages to get prisoners.
Mr. Koppe got personal: “In his mission for lost souls, was it all right for Say Sen to sometimes not tell the Chamber the truth about what he saw?” Mr. Say echoed his prior remarks that he did not think it was necessary to lie to the court; it was of no benefit to him to be there; that he was before the court “to assist the victims and the survivors.” He maintained that he was telling the truth.
Ms. Guissé returned to the issue of the sexual assaults. Say Sen reiterated that Rat was “physically touched” not raped. But, there were two other women who were raped, killed and then had M79 grenades put in their vaginas. Ms. Guiraud objected to Ms. Guissé claiming that Say Sen had told the OCIJ that Rat had been raped when he had not, and the court had already spent a lot of time getting clarification on the matter. When Ms. Guissé justified that it was relevant if the witness had lied, the President stepped in adding that Mr. Say had stated clearly that there had been “a confusion,” and that the counsel’s question was repetitive. Yeay Ngor had told Say Sen the details about her daughter’s experience.
Say Sen had been assigned to guard other prisoners at work because he had been there longer than anyone else. He knew that if any of them fled, he would be in trouble but no one did. He attributed it to them all being female: Ngor and her family, Ta Chen and himself. As a prisoner, he was not issued a weapon. The others did not know of his guarding role. They thought he had a similar status to their own.
Ms. Guissé attacked Say Sen credibility over his professed not hating the perpetrators, by reading from his DC-CAM 2004 interview in which the witness attested: “it makes me so angry. My memories are clear. Sometimes I feel like taking an axe and killing all those people.” Mr. Say acknowledged making the statement but dismissed it as old, from a time when there was “no law. Now we have a proper court so (his) view is different.”
The defence counsel chose to end the day by going back to the rape issue. It had been Duch, himself, who had told Say Sen that he had raped and killed the women and violated them further with the grenades. Shortly after the murders, Duch had ordered Mr. Say to go and bury the bodies. On hearing that Saut Saing had been present during the assaults, Ms. Guissé made an application for a confrontation of Say Sen and Saut Saing over their opposing stories. Mr. de Wilde thought the application should be made in writing. Mr. Guiraud seconded the proposal, and added that she would need time to react to the application. She said she would object on the grounds that “the application is tardy and irrelevant to ascertaining the truth.” Mr. Koppe also advocated for a written application. Further, he posited that one civil party lawyer representing two civil parties was a conflict in interest. The President ruled for a written submission.
Judge Nil Nonn then provided Say Sen time to make his personal statement. Mr. Say said he “was grateful for the opportunity to speak on behalf of victims, and to enlighten the court on behalf of those who died, for lost souls who will reincarnate without heinous crimes in the next life.” Say Sen also had a question: “Why when there was plenty of food, were the people deprived until they died.” But the court could not be of help. The President explained that the two accused were still exercising their right to remain silent, and he could not instruct them to answer.
It was late, a very late 4:40 PM. The President graciously thanked Say Sen for his time and excused him from the court. Court adjourned in time to land all parties in rush hour traffic. It would be a long journey back to town.