Khieu Samphan Breaks His Silence to Support His Defense Counsel

The second day of presentations of key documents was given over to the Defense. Unfortunately, the afternoon session was marred by bickering and games-playing, with all other parties and the court becoming frustrated with Khieu Samphan Defense Counsel Arthur Vercken’s antics.

The day started innocently enough with Victor Koppe, Nuon Chea Defense Counsel, highlighting some thirty documents key to the Nuon Chea defense. His three-part presentation grouped the evidence into sections on Kraing Ta Chan, on living and working conditions in Tram Kak and on the treatment of targeted groups. His submission did not go smoothly with the Prosecution frequently objecting that Mr. Koppe was making closing arguments or that he was presenting documents that were inappropriate for this stage of the trial.

re: Kraing Ta Chan:

Mr. Koppe prefaced his pitch with remarking that the 138 “allegedly contemporaneous documents” concerning the security center on the case file formed the “Prosecution’s core evidence.” But, that there were problems with this as only three documents have “a located original.” This raises such issues as the impossibility of verifying witnesses’ claims as, for example, Ta Chim’s assertion that all executions had to be annotated in red ink on the execution orders. The counsel stated that documents may have been forged in order to create a false picture of what went on during DK. It is the Defense’s declared intention to file an official request for an investigation into a selection of suspicious documents soon.

Mr. Koppe’s first document was an April 2, 2009, interview with Youk Chhang, Director of DC-Cam. His choice emphasizes ‘chain of custody’ problems with evidence.

To wit, counsel states that it is unclear how, when or where, the original documents from Kraing Ta Chan were lost. Sao Phim, current Secretary of State of Cambodia, allegedly received documents from the District Front and gave them to Ben Kiernan. Ben Kiernan has said they are in S-21, but there are accusations that he did not return the documents. Mr. Koppe says it is uncertain from where the District Front received the documents. Supposedly they came from villages and communes but they did not take the originals from Kraing Ta Chan.

Mr. Lysak interrupted to object to his colleague “characterizing the evidence and not presenting it,” and to accuse him of “misrepresenting evidence. 

After the brief interlude, Mr. Koppe made his third point that, Hun Sen was the source of documents given a “D” in the DC-Cam numbering system while “other sources are from Takeo province.”

Counsel then moved on to five sections of documents he put forward would offer an “alternative view” to the Prosecution’s “universally brutal picture of the regime.” Firstly, he presented records showing multiple attempts were made to re-educate people (including Lon Nol soldiers) at the commune level before matters were escalated (“if they were escalated”) including:

– a Kraing Ta Chan interrogator’s notebook containing confessions of soldiers (among others) and evidencing several incidences of people being released after re-education. These included those of two Lon Nol soldiers from Angk Tasome commune who underwent many attempts at re-education after committing frequent thefts, and Khum Vet (spelling?), a Lon Nol corporal and “a major thief,” on whom re-education was tried on multiple occasions;

– a report from An (Chief of Kraing Ta Chan) to Angk Tasome commune citing the case of Khim Vann Ny (spelling?), a ‘new person’ from Srae Ronoarng commune, who often stole food but continued his thefts after several attempts at re-education;

– a compilation showing how “at least five(sic) people” received multiple rounds of re-education in order to correct bad behavior:

     – Kiem Viet described as “a great stealer,” but re-educated over a period of threeyears. When that failed, he was ‘rep educated’ by “hot” methods;

     – a doctor from Phnom Penh who had committed several thefts and been re-educated several

times, but “still abused Party guidelines;”

– two others from Angk Tasome. One was a ‘new person’ of Vietnamese heritage re-educated

multiple times after stealing, but who “repeated his activities” nevertheless. The second was

a youth with a Lon Nol military background who had “stolen and incited (others) to fight

       the revolution.” Although “re-educated very often, everyday he continues to steal;”

– a July 27, 1978, report from Tram Kak District to District 109, regarding Suan Pi, who was “good at stealing things belonging to the cooperative,” but had been re-educated;

– a report to An of March (year unknown), of two Lon Nol military arrested as they had stolen repeatedly and “Base has re-educated them to utmost of capabilities;”

– a document regarding:

– Khieu Sovann who had stolen frequently and been re-educated “time after time,”

– Khun Suan who Angkar had re-educated repeatedly after he slaughtered cows and

chickens to eat;

– a military man accused of rape and eating offences and “re-educated often;”

– Chea Sophal from the Kus Youth, “the thief of thieves,” who had been “re-educated over

and over but it has not worked;”

– Mik Chea (spelling?), who had stolen manioc and other foods and undergone “frequent re-

education but kept on stealing.”

Next, Mr. Koppe listed his key documents demonstrating the caution exhibited by Kraing Ta Chan authorities in obtaining instructions on how to deal with people:

– a compilation of Kraing Ta Chan District reports:

– an October 13, 1077, request from Khom to the Party regarding “Hon,” for direction

on this “major thief,”

– a request from Angk Tasome commune on two persons for “whatever Angkar decides;”

– a request from Mean at Nhaeng Nhorng commune for the Party’s decision;

– another request from Mean for the Party’s decision on four people who wanted “to

         smash the revolution;”

– a compilation of documents, two of which are relevant to the issue of advice:

– an April, 1977, request from Tan at Popel commune for Angkar “to pass judgment on

what to do;”

– a note from Ta Penh to Kit requesting and “an opinion and instructions” on six soldiers;

– an April, 1977, request from District 105 to Angkar requesting “an opinion on how to solve” a problem with a person;

re: use of “hot” methods of interrogation:

Mr. Koppe summarized that “hot” methods were not always used and, “sometimes, appeared to be used rarely,” as he would adduce employing:

– an interrogator’s notebook titled “Fifth Confession of Despicable Traitors Pol Pot and Ieng Sary,” showing that “hot” methods were only used during two interrogations out of all those done on 105 prisoners (including some Lon Nol soldiers) at Kraing Ta Chan;

– another notebook on 107 prisoners showing that only four were subjected to “intense interrogation.”

Counsel commented that both notebooks “suggested that ‘hot’ methods were not standard practice.” He went on to outline that the first notebook also contained the confessions of Meas Sokar, his mother, Boeun, and sister, Surat, all of whom are still alive. The lawyer avouched from this that it “is possible many others in the notebook also survived,” and questioned “how often, if any, executions occurred,” at Kraing Ta Chan.

This was too much for Mr. Lysak who objected to Mr. Koppe’s conclusions which he argued “crossed into realm of closing argument.” The Co-Prosecutor contended that the defence had “no basis for saying that every incidence of torture was documented and no basis for saying other prisoners were released.”

Judge Fenz responded that “it is a fine line in this kind of hearing between presenting a document and commenting on it,” but asked counsel “to concentrate on presenting documents rather than evaluating documents.”

 

re: different definitions of “smash:”

The defence counsel advanced that “smash” had variable meanings, “not always equated with execution,” as demonstrated by:

– an undated report from Trapeang South cooperative on two men’s confessions which mention “a five-year plan to ensure “’smashing” of coop’s opposition to communal eating’;”

– a report identifying a network of four persons “with plans to smash our revolution;”

– a Kraing Ta Chan notebook on Pun Nuon (spelling?) accused of plotting “to smash and destroy coop.”

 

re: Kraing Ta Chan:

Mr. Koppeproposed two documents from S-21 relevant to other security centers including Kraing Ta Chan:

– a DC-Cam paper, “a long list of children and cadres that DC-Cam says were released,” not just the seven people that are commonly referred to as having survived S-21. The document indicates who is still alive, who died after 1979 and those whose status is uncertain.

Mr. Lysak disagreed. And, as he could not find the document Mr. Koppe was citing, he wanted to see his evidence. He added that “prisoners weren’t released but were sent to Prey Sar.” (Ed. Note: Prey Sar is the largest prison in Cambodia).

Judge Lavergne questioned the relevance of the document to Tram Kak and Kraing Ta Chan as S-21 is not part of the current trial segment.

Mr. Koppe explained that by showing that “a substantial number of prisoners were released from S-21, (he) could make a comparison that’s relevant to Kraing Ta Chan.”

Judge Lavergne cut off counsel’s presentation of his second document, a September 30, 2008, article on S-21. The jurist was having “a hard time following (Mr. Koppe’s) reasoning,” as there has been no examination on S-21 yet. Mr. Koppe replied that, as 177 prisoners had been released from S-21,“in context, prisoners were released from other security centers.” Mr. Lysak felt it was “premature to get into this at this point.”

 

re: documents of limited probative value as possible forgeries:

– a Kraing Ta Chan notebook, the basis for the claim relied on by the judges in the ‘closing order’ of 15,000 executions at Kraing Ta Chan. The infamous scribbled note is on a separate page and not in the same handwriting as the rest of the notebook. The note itself is in two different handwritings and “clearly out of context” with the confessions. Mr. Koppe expressed that another notation: “May the Party be informed of this,” shows “where it was created.” He was “convinced it’s a post-1979, forgery to inflate the death toll at Kraing Ta Chan.”

Mr. Lysak said he was convinced that “this is clearly argument,” and pointed out that the document was not the same as that with the post-1979 title, “Fifth Confessions of the Despicable Traitors Pol Pot and Ieng Sary.” Mr. Koppe defended that he was simply trying to make a connection between the annotated document and post-1979 documents and went on to…

– a document appearing to be a compilation of different prisoner lists from Kraing Ta Chan, and referring to Say Sen. Counsel bases his opinion that it is a forged document on the fact it reports the biographies of the Meas Sokar family incorrectly. He opines that it “probably was created as an attempt to obstruct the narrative of Kraing Ta Chan,” and that “there are other documents attributed to witnesses who have denied that they created them.”

Marie Guiraud, Civil Party Lead Co-Lawyer admitted her objection was “belated,” but said “it is clear our learned friend is pleading.” President Nil Nonn reminded her that counsel have “discretion” in their presentation of documents, that there is time set aside on Thursday to make objections, and directed her to “be patient, take notes and be on (her) feet at the right time for objections.”

After the break, Mr. Koppe continued with his presentation of Kraing Ta Chan documents:

– a March 7 (year unknown) “DR era forgery,” a letter purportedly signed by San to ‘Brother An’ concerning persons who were trying to escape, but which Ta San rejected under oath as having written;

– an undated and unaddressed request by Ta San to have a prisoner interrogated. Ta San testified that this was not in his handwriting, either;

– a letter by “Nouv,” of Srea Ranoarng, concerning a unit deserter. Nouv has told the court that the letter was not in his handwriting and that there was no one else at the commune with the same name. Nouv “had speculated that a clerk wrote it;”

– an alleged execution list of Lon Nol soldiers in the Tram Kak District, “dated one day after the Vietnamese invasion.” It is of such a poor quality that the original translators felt it could not be translated. The present copy has significant discrepancies in translation, for instance, varying between “kamtech,” “éliminé” and a cross notation on a direction.

 

re: living and working conditions in Tram Kak:

 

– meeting minutes for the Ministry of Health and Social Affairs concerning DK policies on health. Several reports discussed refer to the production and distribution of medicines, resolution of diet ration problems, and the manufacturing of clothing;

 

– Revolutionary Flags of February and March, 1976, reporting on lack of modern medicines, and on the necessity to dig new canals and build new rice storage. Mr. Koppe explained that these editions show that access to hospitals was a CPK priority and that there was no policy discriminating against ‘new people.’

 

re: guidelines concerning unacceptable behavior of cadres:

– August 24, 1975, Standing Committee minutes recording that the members “would prefer to talk about the overwhelming number of ‘base people’ and ‘new people’ who are good;”

– Revolution Flag, September-October, 1976, on “the CPK leadership stressing” that: “internal contradictions must be sorted out…they are our flesh and blood…one way is by education;”

– Revolution Flag, July, 1978, on being “vigilant in taking responsibility.” This issue also deals with, “in order to build Party branches, eradicating ‘leftish’ anti-masses ideas and ‘rightist’ ideas such as inducting carelessly, not based on Party statutes;”

– the confession of Chu Chet, former Secretary of the West Zone.

At this, the ever-vigilant Judge Lavergne jumped in to ask what the objective was of using this document now instead of in the S-21 section. Mr. Koppe affirmed that it related to people in Sector 13 and District 105. The judge also wanted to know if Mr. Koope intended to read from the confession. The counsel was frank. He would be “doing the same thing as the Prosecution yesterday in reading excerpts from Kraing Ta Chan. In essence, no difference in what the Prosecution did in reading from confessions.

Mr. Lysak was incensed. With his voice shaking, he said: “There is a world of difference.” He had read from an interrogation notebook which “is different from a confession signed by a prisoner.” The Co-Prosecutor maintained that the defense counsel wanted to read statements from confessions making assertions obtained under torture, and that this was “barred by the Convention against Torture.” 

Mr. Koppe came back fighting: “The Torture Convention protects against torture. Whether elements of confessions can be used is to be debated by the Supreme Court Chamber.” He claimed “not to see why the Prosecutor can use parts of confessions for his purposes but (he) couldn’t for his purposes.”

The President advised that “the contents of records obtained under torture would not be read,” and that the Chamber had only allowed the Prosecutor to read annotations.

 

re: the Khmer Krom:

– excerpts from a September, 1978, domestic service broadcast on the visit of a Japanese Friendship delegation to Takeo and their interview with the Khmer Krom living in Kirivong, in refuge from Vietnamese persecution;

– document from Angk Tasome commune to the District Office requesting advice on how to treat mixed Cambodian-Khmer Krom families when all members wanted to be transferred to Vietnam.

 

re: Buddhists:

– an excerpt from a video (which was played in court), depicting a visit by top Vietnamese leaders to DK in 1975, and showing the dignitaries, along with Nuon Chea, Pol Pot and other members of the Standing Committee, “admiring Buddhist statues,” at the Silver Pagoda;

– Ian Harris’ book, Buddhism Under Pol Pot, in which the author proposes other causes for action against Buddhism such as the US bombing of pagodas and the use of monks as American spies. Harris found no policy for systematic liquidation of monks during DK although some monks were executed as spies;

– an excerpt from the Australian-made documentary, Cambodia: The Bloodiest Domino, graphically portraying the bodies of Lon Nol enemies whose livers had been cut out. The film’s dialogue states: “eating an enemy’s liver is an ancient practice of war in Cambodia… (from which) they get the spirit, the strength of the enemy, of the dead.” Mr. Koppe requested to have the court play the tape on the basis that “it shows that former Lon Nol soldiers weren’t helpless victims; that we need to come to trial, not with what we think we know, but with an open mind.”

Judge Fenz allowed the viewing but with the proviso that the video “not purport that whatever a person had done justifies his killing.”

It was a memorable end to Mr. Koppe’s presentation.

Arthur Vercken continued the presentations after lunch. He foreshadowed that he would deal with four issues: the 12 moral commandments of the Khmer Rouge created before 1975; questions relative to cooperatives; documents on establishing the death toll; and problems linked to local cadres.

Mr. Vercken advocated that the DK “was far from anarchy in how people were dealt with, that they sought to respect the people,” as expressed in the 12 revolutionary principles recited daily, and which counsel then read to the court. The lawyer went on to explicate the Khmer Rouge objectives for the cooperatives. He quoted from a Revolutionary Flag, of 1975, regarding health policies, and that the resolution of people’s needs was key for support of the Party and the revolution. After the lawyer remarked that the “political sense could not be separated from the economic sense,” Ms. Guiraud interrupted with a point of information. She had been told by the Tribunal’s Senior Legal Officers that she was not to present documents on the policies of the coops at this time so had had to reorganized her presentation of yesterday to adhere to this advice.

Judge Lavergne spelled out that “the Chamber would like the Khieu Samphan defense to focus on issues directly related to Kraing Ta Chan; national issues will be presented later.” With that, the argument was on. Mr. Vercken “challeng(ed) this,” in no uncertain terms saying he was just “defending (his) client who was not at Kraing Ta Chan.” The counsel threatened that, if he was forbidden to speak about Khmer Rouge policies, he “might as well just sit down.” Judge Lavergne explained that the Chamber was “not challenging his right to defend Khieu Samphan but only drawing attention to today not necessarily being the best time to present the documents. That would be better later.” Mr. Vercken retorted: “We will stop right now.”

Kong Sam Onn declined the opportunity to make a presentation, but observed that Kraing Ta Chan and Tram Kak coops are related to others throughout the country and “the principles apply throughout the country.”

And then a surprise. Khieu Samphan elected to speak: “Although (he has) been accused of being part of a joint criminal conspiracy, (he) did not know of any particular instances as to what happened at Kraing Ta Chan and Tram Kak.” He appealed to the court “to allow a presentation of policy.”

Mr. Lysak voiced his own challenge to the defense. He wanted to know, “to what general policies on coops was the defense referring and would Khieu Samphan subject himself to questions on these policies?” He pointed out that the defense “constantly objected” to the scope of the trial yet now wanted to discuss coops nationwide.

Judge Fenz sought to clarify if it was “understood that the issue here is not if allowed to present documents, but when?” There will be an opportunity to discuss these documents later.

Mr. Vercken was not having it. He complained that the defence was “continuously told that the second trial might not reach its conclusion,” and had been “pressured into sub-cases because the accused might not survive.” He felt that the prosecution was “stepping outside the trial” more than he was (by covering Angk Roka and the Khmer Krom), and that “this is the main issue.”

He wanted the documents in now because his client might not survive until later.

Judge Lavergne said “the Chamber has to ensure equality in preparation of parties on the key documents,” and that they had circulated an email on this issue. Therefore, if the defense “breached” this line, the Chamber would have to put an end to their presentation. Mr. Vercken responded that if, in the Chamber’s opinion, his representation was untimely, he could not make a presentation. The judge accused him of “distorting the Chamber’s words.” Mr. Vercken defended that he “had not consider that the message debarred him from presenting the documents relating to Khieu Samphan.” Judge Fenz interposed that he was the only one who did not understand it, then. She maintained that “it’s a matter of trial organization,” and asked if his team had “documents relevant to Kraing Ta Chan to present today or not?” The President called for the afternoon break to give the defense time to think about it.

When the Bench returned, Mr. Vercken made it clear that his standpoint, and that of his client, was that the documents they wished to present “are directly related to his position on Kraing Ta Chan and Tram Kak.”

Ms. Guiraud wanted it understood that she had vocalized her position (that she had been prevented from presenting certain documents), so it would be on the record for later use.

Judge Fenz again tried, to no avail, to ascertain whether Mr. Vercken’s documents pertained to Kraing Ta Chan and, if so, said they could be done at a later stage. After a disjointed rant by Mr. Vercken, she rephrased, asking if his “evidence is primarily about the role of the accused for which we have a specific section? Yes or No?” That was not productive, either, with Mr. Vercken complaining (inaccurately) that “we have been speaking …one hour and fifteen minutes on a non-objection.”

The President concluded that “the Chamber (did) not have a complete view (of Mr. Vercken’s position), but grant(ed) him the right to continue.” The court said it would decide on a case-to-case basis if the documents were appropriate.

This was not satisfactory to the defense. Mr. Vercken apologized but said he could “not work on a case-by-case basis. Either (the Bench) let (him) speak or it was a bit of a waste of time.” On the President’s urging he said he “would try,” but then raised the issue of making up “the lost hour and a quarter.” Judge Fenz rejected his request, informing him that he would “have to face the consequences of lack of preparation.” Doing his best to keep the hearing on track, the President told the counsel that the Chamber would consider it, but felt that Mr. Vercken probably had enough time before 4:00 P.M. Mr. Vercken disagreed that there would be enough time. And he was offended that he was “being accused of not being prepared.” He declared that it “was better just to stop,” and did so.

President Nil Nonn ‘was not amused.’ He decided that “counsel (was) not performing his duty as a professional counsel (by) refusing to make a key documents presentation.” He then asked Khieu Samphan if he was changing his position on remaining silent. Khieu Samphan said he was exercising his right to silence except when there was a need for him to offer clarification. The accused then rebuked the court for “mention(ing) that his counsel doesn’t have the capability to present documents.” The President cut the lecture short, ordered Khieu Samphan to sit down and quickly adjourned court. It had been a ‘long’ afternoon although it was well before 3:00 p.m.