Presentation of Key Documents Raises Disputes over Evidence versus Argument

As rain poured down, Day One of the ‘document hearings’ on the Tram Kak cooperatives and Kraing Ta Chan Security Center got underway. In order to assist the parties in selecting key documents, the Chamber announced that it would continue the procedure used in Case 002/01 of presenting key documents that could be used by any of the counsel. President Nil Nonn said that this would also serve “to ensure a greater measure of public accessibility,” an important goal of the Tribunal. He explained that the court had instructed the lawyers to select key documents other than those already discussed in the first trial. No one had informed the court that they would be availing themselves of the opportunity to not choose documents or declared that they would not be commenting on documents submitted.

The Co-Prosecutors began their presentation with an iteration of excerpts from Ben Kiernan’s book (“The Pol Pot Regime”), of relevant points the author makes concerning the lack of sufficient food and the Kraing Ta Chan Security Centre.

 

re: insufficient food:

– Muth and Khom had introduced communal eating initially in May, 1973, but the project had failed and the people rebelled;

– that ‘base people’ in Sector 13, received “better rations while the ‘new people’s’ rations depended on how they worked;”

– fishing and foraging were assessed as attempts to survive individually and, thus, prohibited;

– the sick got half rations of gruel;

– “the margin of survival was slim;”

– as a model commune, Leay Bor was divided into ‘full rights people’, ‘candidate people’ and’ ‘deportees.’ ‘Full rights people’ were put into different cooperatives than the latter two groups;

– during 1975-1976, rations consisted of one spoon of rice; by 1978, gruel soup had become the norm;

– there was no starvation in 1975-1976, but malnutrition “took a heavy toll from 1977–1978,” mainly amongst city people;

– those who complained about the lack of food were executed;

– the period 1977-1978, “saw the most killings.”

re: Kraing Ta Chan Security Center:

– Kraing Ta Chan was established in 1973. Its first victim was a Khmer returned from Hanoi. By 1975, many had died within its confines;

– a student interviewed about his arrest and torture in March, 1978, related that two Lon Nol soldiers arrested with him were quickly killed. After one month of refusing to confess, he was put to work burying bodies (over 200 in the next two months). On one occasion, 60 people were brought in and “killed on the spot;”

– that in February, 1978, Ta San, had addressed a mass meeting of communes and proclaimed that “ an aim of the revolution was to take Kampuchea Krom territory;”

– in late 1978, local authorities declared: “if the Vietnamese are all gone, Khmer Krom remain; if Khmer Krom all gone, Vietnamese remain.” 

The Co-Prosecutors then moved on to documents substantiating other parts of their case against the accused, Nuon Chea and Khieu Samphan.

 

re: treatment of Khmer Krom:

– a notebook from Kraing Ta Chan detailing that, in late 1975, when the Yuan were repatriated, a man was arrested for wanting to go with his wife when she was returned to Vietnam, and for preferring to live in Vietnam as that country still had markets and used money;

– a notebook on prisoner entries detailing that Vietnam had only accepted pure ethnic Yuan deportees and listing four rejected Chinese Yuan families;

– a request dealing with registration instructions for mixed-Vietnamese families;

– six examples of lists identifying Khmer Krom families and Lon Nol soldiers containing such information as:

. an annotation that a recorded Khmer Krom woman’s husband had been “smashed”

on his arrival;

. a list of 64 families, their occupations and from where they were evacuated;

Victor Koppe, Nuon Chea Defence Counsel objected to the documents on the Khmer Krom on the grounds that the Chamber has still not issued a ruling on his issue with the inclusion of the Khmer Krom in Case 002/02. Co-Prosecutor Lysak said “the objection is groundless,” as the allegations against the accused include the Khmer Krom in the closing order.

Judge Fenz delivered the Bench direction. Counsel could raise issues with the documents now “if necessary, but if it can wait until Wednesday, wait.” The Chamber would make the decision on whether the Khmer Krom were within the scope of Case 002/02 “as soon as possible, it is on the top of the priority list.” In the meantime, “the Khmer Krom can be dealt with in absence of a decision to the contrary as the Khmer Krom were among the prisoners,” at Kraing Ta Chan.

And, finally, that the judges were going to “leave wide discretion to the parties on how they may focus on the time allotted to them,” for their presentations on documents.

 

The Co-Prosecutor continued his recitation of documents concerning the singling out of Khmer Krom and Lon Nol personnel including:

. a list from Popel commune of 64 families (228 people) exchanged from Vietnam;

. a Samroang commune list of 54 Khmer Krom families with advice that “all were taken away

by Angkar;”

   . a report by Heng Rehokar defining Kraing Ta Chan as an “execution site;” that

Khieu Samphan wanted the people in Tram Kak District “to be afraid;” notes from the

Kraing Ta Chan archives giving biographies and statistics on 400 prisoners listed in a

“confessions” notebook; that about 100 people had escaped to Vietnam but that 157 who

tried had been caught; that Vietnam would help liberate the country; that various documents

illustrated that the regime had destroyed their own people (eg. 23 guards, four medics,

soldiers, laborers and nurses); and that an eleven-year old had been interrogated as well as

12 other children under age 18.

re: purges of former regime members:

Co-Prosecutor Dale Lysak took over the submission to deal with the purges of Lon Nol soldiers and officials. He reported that the Co-Prosecutors would be referring to Ming Try Ea’s book, “The Chain of Terror,” for the following advice:

– that former Lon Nol soldiers (including police) and officials were considered “feudalists and capitalists” and, as such, were listed, gathered and shot;

– the majority of Lon Nol personnel arrived at Kraing Ta Chan in 1975-1976, but the death list was later expanded to include members of their families and the general public.

 

Other documents the prosecution wishes to rely on to cover this topic include:

– An’s Kraing Ta Chan 1976 notebook containing interrogation records on Tong Tine and Lay Chee smashed for criticizing the regime and wanting to escape to Thailand; notes on the interrogations of Meas Sokar’s family; and list of the arrests, detention and interrogation of 62 Lon Nol soldiers, officials and police and their relatives and Lon Nol regime supporters;

– notebook on Suan Set’s interrogation and those of 14 of his associates, all of whom were executed.

Mr. Koppe interrupted that it had “dawned on (him) that the notes referred to are coming from alleged prisoners from Kraing Ta Chan who had possibly been tortured.” He did not “see what the difference is in reading from possibly torture-tainted notes and using notes from S-21 to question witnesses.” He requested that when the Chamber makes a ruling on his prior request on the use of S-21 confessions, “to also make a ruling on how to deal with reading from Kraing Ta Chan notes.”

Mr. Lysak disagreed on the basis that the notes “have always been used to establish the identification of prisoners, and to establish the process used (i.e. one prisoner being tortured to implicate another person).” He went on to state that Mr. Koppe had been “trying to use S-21 confessions as the truth of the assertion, an enormous difference.”

Judge Lavergne responded on behalf of the Bench. To the extent that the notes were to be used to establish the identification of prisoners, there would be no objection to that use. The jurist made clear that the Chamber “is mindful of the decision it has to issue regarding Mr. Koppe’s prior objection, and will issue that decision subsequently.”

Mr. Lysak picked up with his list:

– notes showing the arrest of Neang Khun and Lang Kor, wives of two Lon Nol soldiers;

– various documents from Cheang Tomg, Angk Tasome, Popel, Nheang Nhorng, Kus, Leay Bor and Por Trabek communes on “Lon Nol enemies who held ranks,” and were to be purged as per the Party’s instructions;

– a document showing knowledge by An (the Chief of Kraing Ta Chan), and the Tram Kak District Secretary, of the policy of identification and purging of Lon Nol soldiers. On the bottom, Kit has written that “the party decided to have three traitors smashed.” (The Co-Prosecutor clarified for Mr. Koppe that there was a slight difference in the French translation of the document with that version “making specific reference to arrests being according to a directive from Angkar).”

re: the targeting and treatment of ‘new people’ in Tram Kak:

Many were arrested for “opposing” the Party line, Angkar and/or the aims of the revolution, and sent to Kraing Ta Chan as detailed in:

– a report by the Chief of Srea Ronoarng to District 105 outlining how Pech Savann was arrested for chasing ducks into rice fields to eat rice, and that there were “other ‘new people’ still opposing the party” that he would arrest and “send on;”

– a Kraing Ta Chan notebook detailing the arrest of former driver, Kao Khun from Nhaeng Nhorng commune, who had been arrested for saying: “my mind remains in Phnom Penh. Why are you boasting? All of our children have died. Why are you boasting of progress? Progress is non-existent;”

– notes from a ‘17^th April person’ quoting an official of Srae Ronoarng commune that he ‘hated ‘new people’;”

– a list of 29 prisoners (twenty-one ‘17^th April people, six ‘base people,’ and two cadres), with biographic comments and the victims’ alleged offences. Six had planned to flee to Vietnam; four refused to work or had criticized the party; two had committed adultery; seven stole; three were accused of being “cruel administrators” in the Lon Nol regime; two were implicated by others, and one was labelled a Yuan administrator. Eleven were former Lon Nol military and one was the son of a captain who had been smashed;

– a prison document describing reasons for the arrest of: a former teacher who had demanded the return of the “disappeared,” had complained of food shortages and advocated for the re-openings of schools; a man who had worn a hat bearing a portrait of King Father Sihanouk; and a man who had confessed to “disliking the current revolution;”

– a notebook showing the detention of 79-year old Chou Pit, born in Vietnam, who had averred that the “revolution bragged it was the people’s land, state authority, but it was really Angkar’s;”

– a notebook detailing how Pneu Mom, a ‘new person,’ was sent to Kraing Ta Chan for saying she “can’t live…where there is no delicious food to eat, the regime doesn’t use money and people have only one set of clothes that smell.” She had elaborated that she “just did not like the revolution;”

– a report from Trapaeng North commune of two youths arrested for voicing that “the Khmer Rouge won the war because the US stopped dropping bombs and because of student protests in the international community;”

– a Kraing Ta Chan list of female prisoners accusing them of breaking coop spoons in order “to make eating private again;” 

– Henri Locard’s opinion that out of 437 people on a prisoner list, “only three detainees would have been taken to court in a civilized society.”

Just before the lunch break, Mr. Koppe suggested that, in light of the revised schedule, it would be more useful for objections on the targeted documents to be moved to Thursday to allow time on Wednesday for a “more profound development” of arguments. Both the Co-Prosecutors and the Civil Party lawyers had no preference, and left it to the Chamber’s discretion. After lunch, the President granted the Nuon Chea Defence request but made it clear that no additional time would be granted.

 

re: arrests based on minor complaints:

Mr. Lysak’s documents concerning arrests made because of complaints aboutthe food, stealing food or remarks about the difficult work conditions include:

– a Kraing Ta Chan notebook narrating that 60-year-old Young Kai had sympathized with the previous regime, and said that “for food, it’s like we’re slaves…we have no strength to work.” He had been interrogated with both “hot and cold methods” but refused to confess;

– a 1977 report from Leay Bor commune on a youth who had complained about insufficient food:

“In the old society, we could eat when we wanted…don’t want to be alive at present. It is better to be dead.” One annotation said he was a Yuan and Kith had also written ordering him interrogated as “he is an organized string of the CIA;”

– a report from Neang Nhong commune on four women, two of whose husbands had been smashed. One had asked: “Not a thing to eat. What kind of revolution is this? The old society was very happy. There were plays and Chinese movies to go and watch;”

– a Kraing Ta Chan notebook listing prisoners’ complaints. Prisoner #28 had been arrested for expressing negative views on the “thin porridge;”

– a Kraing Ta Chan notebook listing 29 prisoners who had tried to escape to Yuan (Vietnam) or Siam (Thailand) or flee the work unit, or had “moved around too freely;”

– a prison report on Nit Pun accused of being “too free” for having visited relatives “contrary to the discipline and then fled as he didn’t dare return to his unit;”

 – a 1977 report from Kit to “the beloved Party” requesting directions on a female who walked around and behaved “inappropriately” to the administration. The return advice was she “must be an enemy…conduct intense interrogation;”

– a Kraing Ta Chan list on which one person was noted to be “free spirited and overjoyed, failing to respect discipline;”

– a list of 37 prisoners executed for such reasons as visiting a grandmother without a travel letter;

– Ta San’s instructions to execute young children along with their mothers;

 

re: imprisonment of the very young and the old:

– two 1977 reports from Angk Rokar Security Office Chief Meng. One was on a ten-year old boy’s confession for being part of a group that tried to flee. He was ordered interrogated “as a spy;”

– a Kraing Ta Chan notebook itemizing the interrogation of a 13-year-old for fleeing in search of his siblings after his parents had died. In another case, another 13-year-old, the son of a Lon Nol colonel, had been arrested for stealing melons to eat;

– a Kraing Ta Chan notebook listing prisoner #29, a 73-year-old man accused of stealing food.

 

re: treatment of Buddhists:                                                                      

– a 1977 report from K105 (the District Military Office) to Angkar on the arrest of a man who had asserted that “Angkar says it only demolishes capitalism. But, now there is no Buddhism, monks, schools or teachers. It would be better if Buddhism, monks, schools and teachers existed;”

– a notebook recording two prisoners arrested for being members of the Khmer Sar Party and promoting religious liberation;

– a reference in Ming Try Ea’s book to Ta Mok’s daughter, Khom, going insane “because she ordered the destruction of a temple.”

 

re: involvement of Centre:

– Henri Locard’s report concluding that revenge killings and other executions “were centrally planned,” and that the perpetrators considered they “were merely obeying orders and could not be held responsible;”

– two video clips from “Deacon of Death,” a 2004 Dutch documentary, that the Co-Prosecutor played for the Chamber. One passage evidenced Sok Chea relating how she had observed torture through a crack in a window frame; the second selection was on a confrontation she had with a former security chief in which he admits to some atrocities, but excused himself from any culpability because he was “afraid not to follow orders…too afraid to prevent” them. On camera, he eventually acknowledges the men under him had committed cannibalism and eaten human livers.

re: a systematic procedure of arrest, interrogation and execution:

– a notebook referencing “hot and cold” interrogation methods;

– a 1976 report from Angk Tasome Chief to the District Chief proving that both commune and district chiefs had the knowledge and the authority to conduct interrogations;

– a report from An, Chief of Kraing Ta Chan, describing the interrogation of a female and referring a requirement for “hot” interrogation;

– 1976 documentation on a prisoner’s confession obtained through “hot and cold” methods;

– documents registering the arrests of people who were implicated in others’ confessions. For example, an 1977 report from An annotating that a man “to be smashed” has named two other Lon Nol officers . In the words of Mr. Lysak: “…and so the process continued.”

 

re: reporting “to the District from the Zone to Phnom Penh:”

The Co-Prosecutor informed the court that Sector annotations approving execution would be dealt with elsewhere. But on the matters herein:

– a 1977 monthly report from Kraing Ta Chan summing up that at the end of the month 85 prisoners remained;

– another 1977 monthly report from Kraing Ta Chan in which a total of 40 prisoners remained at month’s end;

– a June, 1977, report from the Southwest Zone to Angkar on: “the enemy situation,” (that is, arrests and confessions); the economics of rice transplanting and canal digging; and that there had been deaths in three places due to an outbreak of cholera.

 

This completed the presentation of key documents to be used by the Prosecutors.

 

Marie Guiraud, Civil Party Lead Co-Lawyer notified all parties that her team would present their documents as readings from applications of five Civil Parties who had not testified at the trial.

Mr. Koppe quickly rose to “seek the guidance of the court as to the nature of the document hearing.” He did not feel it was the purpose of a document hearing to simply present oral excerpts from Civil Party applications. But, if so, then he was asking for similar permissions to highlight certain statements from other witnesses.

Ms. Guiraud defended that “it was clear when they looked at how the Chamber operated (in the prior trial), that they could present these documents.” She pointed out that the Civil Party applications are also documents that are part of the case file, and, as such, she did “not see a

reason for (her) colleague’s objection.”

President Nil Nonn agreed and allowed the passages to be entered.

Civil Party Lawyer Hong Kim Suon read in three excerpts of similar content and merit. The first was from a woman, the wife of a Lon Nol soldier, who had been arrested and interrogated in 1977. The second story came from a woman whose husband had been executed and her daughter had died from the effects of torture.

After the break, the President delivered the oral decision on the Nuon Chea Defence team’s request for a site visit to the former Kraing Ta Chan Security Center. The judge reviewed the history of the application: As there was a Site Identification Report complete with photographs on file, the court had asked for additional argument on the need for the trip. Counsel had responded that it would be helpful to see the site instead of relying just on the report. He felt it would show that witnesses who have claimed in their testimony not to have see torture and killing were simply “uncredible,” (sic). Further, Mr. Koppe had pled that a visit “would allow independent assessment of the number of executions at the site.”

The Prosecution had opposed the application on the basis that the site report was comprehensive, and a visit would not add much.

The Civil Party Lawyers objected on the basis the request was “belated” and that there was a need “to balance its usefulness against the inconvenience of such a visit.”

The President cited that the Rules allow the Chamber to reject a request for more evidence if that evidence “is repetitious or unsuitable in proving the facts.” He referred to the existence of the OCIJ report and maps, that the original structures on the site are mostly gone, and that the Defence had not specified what distances it wanted to measure that the OCIJ had not. Summarily, the Chamber denied the visit on the grounds that the evidence would be repetitious, that the Defence had failed to explain how a visit would help determine how many people had been executed there, and that a visit would be “unsuitable to prove the facts it purports to prove.”

Hong Kim Suon’s final reading was from the application of a person who had been a child in Trapeang during the material times of the regime. His family had lost two cows, a bicycle, some gold and money to the collective. When the family was broken up, he was placed in a Children’s Unit and suffered from overwork, insufficient food and no medication as well as deprivation of his familial relationships.

Ms. Guiraud entered the final two narratives. One from a Phnom Penh evacuee who opined he had been treated like a slave, forced to live in appalling worksite conditions “like wild animals” with no sanitation or housing, food scarcities, only traditional medicines. His parents and younger brother were executed by the Khmer Rouge and, during 1975-1977, and he had witnessed executions.

The fifth and last candidate has died. He was a former French teacher who had been investigated for his past. He wrote that he “would sleep weeping for his family.” He had lived in fear of being executed himself but had been saved from that fate by his nephew, a Khmer Rouge group chief.

The only other document the Civil Parties disclosed as key was an interview with Sok Sim, a Ta Phem commune member, regarding who made the decisions in his commune. The man had answered that a failure to meet the three tonnes a hectare rice plan target meant that the people would only have gruel to eat as the extra rice would be sent out of the commune. He named three people who had died of starvation and claimed that more had died in hospital.

As the Prosecution and Civil Parties had concluded their presentations early and Mr. Koppe was not ready for his, court adjourned at 3:35 PM until the morning when the Defence teams will cite their key documents.