Veteran Newspaperman Has ‘No Comment’ Four Decades after the Fact
Day 2 of the examination of Richard Dudman, did not go well for either the Defence (whose witness he was), or for the prosecution. The former correspondent for the St. Louis Post-Dispatch could remember little of what he had gleaned from visits to the war torn country in 1970 and 1978. The hearing was a graphic example of the problems that arise when justice is delayed until so long after the events.
Nuon Chea Defence Counsel, Victor Koppe commenced the proceedings by having played a 10- minute audio tape of Richard Dudman’s 1978 interview with Pol Pot. Unfortunately, listening to it did not jog Mr. Dudman’s memory and he had “no comment” to make regarding the long ago experience.
Neither could Mr. Dudman recall for Co-Prosecutor Dale Lysak what had provoked his historical statement that he had been roughly treated on the first day he was captured by the Viet Cong in 1970, or who among his captors had intervened to protect him. The witness was cognizant that he had called the 1978 trip “a conducted tour” that had left him “unsatisfied” because, as a journalist, he “like(ed) to ask questions and get answers…which was impossible at the time.” He could remember the residual “feeling of frustration” with which he was left from the strict limits on conversations with ordinary Cambodians. Richard Dudman could not remember meeting with personnel from the Cambodia Ministry of Foreign Affairs or those from Leay Baur commune, or what reasons were given that the group could not meet with various leaders and representatives of the Khmer Rouge regime such as Ieng Sary, Son Sen, Ieng Tarith, Nuon Chea or even King Sihanouk (whom he was not told was then under house arrest). The witness did not think that he ever had met the King in China, nor did he think he had had his own interpreter during the 1978 visit.
Mr. Lysak read in from Richard Dudman’s writing that he had found “evidence of shocking brutality and regimentation,” but the witness had “no recollection of what had led (him) to say that … (he) was trying to establish the truth.”
Mr. Koppe objected to Mr. Lysak asking the witness speculative questions such as ‘what sort of questions would he have been asking’ and would he have wanted to know that in the last days of the DK, five patients a day were dying of malnutrition in one hospital alone. The President overruled the defence counsel as the Chamber “wishe(d) to know about this point.” These were exactly the sort of facts that Mr. Dudman had sought to determine, but the witness did not think that it was a “completely fair statement” that he only saw what the Khmer Rouge wanted him to see. The journalist had “suspected that they were putting their best foot forward” in what was shown to his group.
Despite lengthy read-ins from his various articles, Richard Dudman had no recollection of why he had written what he did. He “wrote what (he) saw. (He could) not go beyond the text of what (he) wrote.” For example, he could not remember his Ieng Sary interview or the response received to the requests to meet with various leaders. But, he was sure that ordinary Cambodians had not been getting the cornucopia of food that was served to his coterie.
After the break, Mr. Lysak expressed his appreciation for the effort Mr. Dudman was making to testify at age 96, calling it “an amazing thing.” And then the Co-Prosecutor tried again to spark the witness’s memory. A quote from the article, “The Enemy Vietnam,” concerning his report of hearing continuous denunciations of Vietnam as the “Cubans of Asia” and “the crocodile,” was successful. As a journalist, the witness had “figured it was a nice nugget for a story that would both amuse and enlighten readers.” But, he could not now bring to mind the Phnom Penh broadcasts from which he had heard the pejoratives. Neither did he recall Pol Pot saying that four per cent of the population needed to be re-educated, or from where Brother Number 1 had got this figure. The visitor was not taken to any prisons or re-education centers such as Toul Sleng. Nor had he ever consulted the museum’s records on the 12,000 souls killed there alone. Mr. Dudman admitted that his opinion on what had happened during DK had changed some since his trip “but can’t really recall what changed that.”
Defence Counsel Koppe objected to this line of questioning on Toul Sleng as there is. a section on S-21 coming up. He opined that that would be a more appropriate time to enter S-21 documents. The Co-Prosecutor disagreed as the witness had tried to get information about political prisoners and it was denied. The President allowed it reminding “all parties that they can put questions to the aged on all facts being debated before the Chamber.”
Read-ins of Richard Dudman and Elizabeth Becker being forcibly taken back to their accommodation from their unescorted perambulations around Phnom Penh vaguely “rang a bell” with Mr. Dudman.
When Mr. Lysak attempted to read from various Khmer Rouge propaganda documents which appeared “to facilitate or encourage violence against the Vietnamese,” Khieu Samphan Defence Counsel, Anta Guissé, objected. Saying that she rarely speaks as she considers all her colleagues professionals, she argued that the questions should be on elements that the witness is expected to know, that this technique resembles pleadings. The Co-Prosecutor replied that he was entitled to ask how the information that was not available to the newspaperman “would have affected articles that he wrote.” To Ms. Guissé, though, that was “exactly the problem. The witness is being asked to speculate not comment on what he knows.” Marie Guiraud, Civil Party Lead Co-Lawyer, supported the position that counsel “should stick to answers he may provide.” A bench consultation later, Judge Fenz delivered the oral ruling commencing with the Bench acknowledging that they have given a lot of leeway when they have accepted more speculative questions from both the defence and the prosecution. Diplomatically, she stated that it “is obvious that the witness’s memory is limited,” and “questions should be limited to what facts he would know.” When Mr. Lysak turned around and inquired as to whether Mr. Dudman had reviewed government telegrams, he quickly got jumped on by Mr. Koppe who declared it “a ridiculous question.” It did not matter, in any event, as the witness could not recall receiving any such telegrams.
About some things Richard Dudman had a sense of humour. He had been put on Nixon’s “enemies list,” a list compiled by the Nixon administration of people it considered their enemies.
Under the Co-Prosecutor’s prodding he made clear that he had not been arrested or sent for re-education by the American government, and that he had kept his job at a major newspaper. He surmised that being on the list “may even have helped (his) standing,” at the paper. Mr. Dudman retorted that it “is a lie” that he and Elizabeth Becker had been working for the U.S. government and the C.I.A. as his Khmer Rouge hosts had concluded.
No matter how many ways Ms. Guiraud approached the incidents, Mr. Dudman could not bring to mind any details of a visit to Leay Baur or the worksites. He would stand on what he had written at the time. As it was close to the scheduled adjournment time, the counsel suggested to the court that she would like to stop at that point, and re-organize her questions for tomorrow in a way that might then jog the witness’s memory.
Judge Nil Nonn chose to then deal with “two small matters.” The first he dispatched briskly; the second, not so fast. The Co-Prosecutors request to admit into evidence the 187 page book, “Brothers in Arms,” by Andrew Mertha, which was available only in English, he said was at a late stage in the proceedings. In order to ascertain whether the requirements of Rule 87(3) have been met, he directed the Co-Prosecutors to identify the relevant excerpts for the court within two weeks, failing which the request would be considered moot.
The second item of business was cause for much controversy. Mr. Koppe was given the floor to defend his request for equal time to that of the Civil Party lawyers to examine the upcoming Civil Party witnesses. In support, he referred the Chamber to his appeal brief in case 002/01 wherein his submissions criticize the judgment 255 times for using testimony presented during civil impact statements as evidence going to guilt and actions of the accused. The counsel contended that the defence lawyers needed equal time in order to examine such witnesses on any evidence they give that goes directly to the crimes as he “was not on-hundred per cent certain that the Bench won’t use what the Civil Parties say.”
Ms. Guissé shared a number of the Nuon Chea defence’s concerns. She related that, thus far, there has been a distinction between the hearings presenting the facts and the phase (starting on Thursday), where Civil Parties express their sufferings. The lawyer pointed out that this could have an important impact on sentencing. She wanted to know the status of these forthcoming statements: “Will they have a broader impact on the evidence? Will they be only about suffering or will they testify to facts?” Ms. Guissé concluded she needed to know this now in order to determine whether she would need more time for examination.
Co-Prosecutor Vincent de Wilde was critical of the Defence for waiting until today to make his application when Mr. Koppe had had more than three months to express his reservations on the form and content of the testimony. Further, the Co-Prosecutor asserted that the arguments in the appeal brief “are more radical than what we heard today.” He also spelled out the difference in legal systems, holding that civil parties are witnesses in common law but in civil law, Civil Parties have standing. He averred that as common law is not applicable to this Chamber, all evidence before the Chamber can be used and the parties should be able to discuss it. He suggested that if any new issues arise that impinge on guilt, then questions could be put to the Civil Parties, but that it was “not possible to completely dissociate sufferings from the crimes. The sufferings are the results.” In Case 002/01, questions were put to the Civil Parties on their sufferings and the crimes, and the Defence knew that the answers would be used. Mr. de Wilde accused the Defence of “wanting to have their cake and to eat it, too.” He voiced that giving them the same amount of time is “an exaggerated request.”
The ever-resourceful Ms. Guiraud proposed a solution. She prefaced her suggestion with emphasizing that the impact statements “are the main way for the Civil Parties to participate in the trial; that it is so essential that they speak about the moral, physical and psychological harm that they have suffered. But the harm is intrinsically linked to the facts. Example: The psychological harm is linked to loss of a loved one; lack of food is linked to physical harm.” The fundamental difference is that when the Civil Parties speak of harm as impact it is about their personal experiences (what they lived through), not what they heard or saw. As this reduces the scope of the testimony, she advocated there is no need for equal time for the Defence. Ms. Guiraud underlined that respect of the adversarial principle is of benefit to all, and, to show good will, the Civil Parties would agree to sitting tomorrow afternoon, Wednesday, Apil 1, 2015, to start the examinations. The extra half-day would make it easier for the court to manage extra time for the Defence if the Chamber should so choose. She felt that the way the Civil Party statements on harm ultimately were used should not be of concern today, that it can be addressed on appeal.
Mr. Koppe reacted strongly by stating in no uncertain terms that the application was not “too late.” On January 16, 2015, he had filed a request regarding certain examination practices so the parties were already familiar with his argument. He found it relevant that the fact that impact testimony was used 255 times in the judgment and was not contested by his colleagues a matter of serious concern. He advised the Bench to think about its prior ruling that, if it is evidence, then there is a need for the Defence to exercise it right to cross-examine the Civil Parties. “We need to know what the law and procedures are. If it is evidence, then we need half-time. However, if the Bench confirms its prior ruling, then there is no place for evidence from the Civil Parties.” The counsel detailed that the Defence was “shocked,” in Case 002/01 when such statements were made in the absence of Nuon Chea (who was ill), and then used as evidence.
Regarding the proposal of sitting on Wednesday afternoon, Ms. Guissé reminded the court that she still had her problem of assessing time needed but that it “is clear that if new elements appear, of course (she) will put questions.” She would rely on the Chamber’s decision, but Wednesday afternoon would be of use to her as time to go over the Civil Party statements that she had just received.
Mr. de Wilde had no difficulties with sitting on the morrow. He helpfully told the other parties to contact him for copies of the statements in their desired language if they could not find them in the record.
Judge Fenz spoke for the Chamber. She said “a possible mistake (may) have led to wrongful conclusions in the brief.” She maintained that the prior ruling referenced “character witnesses.”
She challenged Mr. Koppe to define “where the Chamber told the Defence that the Civil Party testimony would only be used in determining sentence and reparations?”
Understandably, Mr. Koppe did not have the information at hand, but replied that “that was what their understanding was.” Quick wittedly, he pled that if the court was now “saying that understanding was wrong, (his) request to have equal time is even stronger.” He, too, thought it was an issue that should be dealt with at the appeal stage but that “if the issue was not clear,” then the Defence needed equal time.
Judge Fenz then asked for clarification as to if all Civil Parties were also fact witnesses who would be saying something about facts. Mr. Guiraud allowed that she did not know what the Civil Parties would say, but “potentially all may bring up questions of fact or could be considered as such.”
Co-Prosecutor Lysak had a different recollection to Mr. Koppe’s of the prior ruling. His understanding was that the Civil Party impact statements could be used.
The President thanked all parties for their submissions and reserved a decision in due course on the issue of equal time. Court adjourned at noon.