Hearing on Key Documents Leads to Acrimony Between Parties
More than the storm outside the ECCC was brewing as the Tribunal convened the hearing on “observations and responses by the other parties” to the presentation of key documents related to Kraing Ta Chan and Tram Kak.
After President Nil Nonn officially recognized Legal Advisor to Nuon Chea, Lu Sovanna’s new status as a defence counsel “for the purposes of these proceedings,” the floor was turned over to Co-Prosecutor Dale Lysak.
Mr. Lysak began by informing the court that the Civil Party lawyers would not be commenting. He then reviewed that, as Nuon Chea’s counsel had noted, there were 138 documents from Kraing Ta Chan in the Co-Prosecutor’s Annex 8. He pointed out that, due to there being multiple documents combined into one entry, the 700 pages “were really probably around 300 records.” His overall observation was that “neither (defense) team was able to produce any records from (these) to support their case.” He opined that the defense documents “only serve as further evidence of the atrocities committed” that are the substance of the trial.
For example, Mr. Lysak submitted that documents detailing repeated attempts at re-education and that the communes sought instructions from Angkar on what to do with prisoners, do not help the defense. Rather, he stated that they “show a security apparatus that was a systematic, organized process overseen by leaders in an organized chain of command,” that resulted in “only death for 99 percent of those sent” to Kraing Ta Chan. He said that the majority of the documents demonstrated that most victims were “re-educated” for stealing food, that Angkar’s attitude was that they “must die for stealing food to eat.” He scoffed at the Defense claims “that the regime was not universally brutal,” based on multiple attempts of re-education prior to arrests. The Co-Prosecutor cited the Defense’s use of a report (E32424) from Angk Tasome to Comrade Elder Brother regarding Hong Vet, “a great stealer” of potatoes, coconuts and corn, who had been re-educated (including with “a hot method”) but ended up at Kraing Ta Chan, and three “enemies” who had been sent for interrogation to determine their “networks” because they had stolen food.
Mr. Lysak next tore apart an example of when the Defense said party officials had been “behaving cautiously.” He read from a report (E32453) from the chief of Nhaeng Nhorng commune to the District Party on four people (a pilot, a secretary of a military warehouse, a military police chief and a corporal), repeatedly found “assembling,” (talking together while they tended cattle). The chief stated he had “no grasp of their plans (but his) analysis is they have plans against the revolution,” on the basis of the workers beating cattle, failure to listen at meetings and not paying attention to their work. He then asks the Party to “provide a decision,” to which the Party’s response was a direction to arrest “the suspicious people.” Mr. Lysak berated the Nuon Chea counsel for advocating that an “idea of caution” is to arrest people for “looking suspicious and who might be enemies.”
Regarding documents presented on alternative meanings for “smash,” Mr. Lysak conceded that “all over the world, words have different meanings in different contexts; that “the revolution had one meaning for smashing coops and a different meaning for smashing people.” But, he asserted, “when the Khmer Rouge said ‘to smash’ people, they meant ‘to kill.’ ” He affirmed that “the fact that the word has different meanings in other context does not change that.” Mr. Lysak said the Defence claim that every use of “hot methods” of interrogation would have been documented has no foundation. He referenced testimony of the cadres as being more probative than the Defense’s citing of the number of times the use of “hot methods” was specifically recorded. And, added that other non-prison documents showed the use of “hot methods” was known by the leaders and used at Kraing Ta Chan.
Likewise, the Co-Prosecutor rejected Mr. Koppe’s contention that, because there were no coloured copies from which to determine whether names had been crossed out in red signifying execution, the documents then were of no use in determining if the people had been executed.
He made clear that Pech Chim, when speaking about this practice, was only describing a routine of Ta San, his Sector Secretary, and that the custom only applied for a portion of the documents (mostly from 1977-78, none from 1975, and some from 1976). Mr. Lysak termed it “an academic exercise” as there are no surviving records from the Ta San period “because the Khmer Rouge systemically tried to destroy records on their atrocities before fleeing to the mountains.”
Regarding alleged forgeries, Mr. Lysak said that, as the debate had been held and responded to two years ago, he would follow the Chamber’s instructions not to deal with admissibility of these documents now. And then he proceeded to destroy the Defense arguments on this matter. In Mr. Koppe’s first example, a document with two sets of handwriting, Mr. Lysak outlined that, as the Cambodians were not a highly-literate people, it was not unusual for an assistant to write out the documents for the principal then to sign. He stated two handwritings means no more than two people were involved in making it and, “in no way does this mean it’s a forgery.”
The Co-Prosecutor showed a slide of the second example of an alleged forgery (E3/4145), labelled “Names of Prisoners at M-105.” He refuted Mr. Koppe’s claim that the use of “M-105” meant it was a forgery as “M” is just a shortened term for “Re-education Office 105.” Mr. Lysak disparaged Mr. Koppe’s assertion that a typed version of almost the same list is legitimate, as “a crazy conspiracy theory” as he could not see why “they would bother.” Similarly, he said there is nothing in the pronouncement that incorrect biographical details for Meas Sokar’s relatives indicate a forgery. The Co-Prosecutor said the information in the Khmer original is correct, but that a translator has filled in the information which the Defence has used to jump to the conclusion that this was a forgery.
In example three, four notes bearing the name “San,” San admitted one or two were his, and one was not submitted for San’s review. The Co-Prosecutor challenged the parties to determine which one was the alleged forgery as “they all look the same.” He did say that it was San’s habit to use an exclamation point at the start of his notes, and this is to be found on three out of the four in the compilation. Further, Mr. Lysak recalled that Ta San had not said they were forgeries, but only that they did not look like they were in his handwriting. As an assistant could have written them, there was no basis for saying they were forgeries.
Mr. Lysak did not understand Mr. Koppe’s argument about how the date of an execution written in Kraing Ta Chan notebook (E3/4083, of prisoner lists rather than interrogator’s notes), of January 8, 1979 (after fall of the DK), indicates a forgery. The Co-Prosecutor believed that “a more reasonable conclusion” was that personnel at “Kraing Ta Chan might not have got the word that it was time to flee,” and were still at the prison on that date. (He brought up that some S-21 records survived because Duch did not have time to destroy them before he ran).
Summarily, Mr. Lysak contended that “the Prosecutors have shown the interconnectedness between the people in the communes and the prison documents,” and that the “belated challenge to the documents authenticity goes against the evidence of witnesses (who) corroborated the documents.” He maintained that these documents “are reliable and authentic,” providing valuable information on who was a prisoner and who were the chiefs of the districts and communes, and “showing what life was actually like for ordinary ‘base and new people’ in Tram Kak.”
Moving on to “Party guidelines on unacceptable behavior,” Mr. Lysak accused his colleague of “forgetting to cite” relevant parts of his exhibits. He read out several sections of E3216 (Standing Committee Minutes, August 24, 1975), that preceded the Mr. Koppe’s quote about the authorities feeling that the “overwhelming majority of base and new people are good.” These warn “to be vigilant of elements among the new people…they would not be with us even if they got two cans of rice a day;” that “every type of horrible element exists among the ‘new people’;” and “to make a plan…especially for spikes to place along the border.”
The Co-Prosecutor dismissed key documents submitted on the treatment of Khmer Krom and Buddhists as no more than “Khmer Rouge propaganda.” In his opinion, there was no value in a broadcast of a “highly-staged trip” or a film of Nuon Chea and others at a pagoda. Mr. Lysak ended his observations by saying that Mr. Koppe “asks us to put aside conventional wisdom and then presents regurgitated Khmer Rouge propaganda. What Mr. Koppe is really asking us is to put aside common sense, logic and reason.”
Civil Party Lead Co-Lawyer Marie Guiraud confirmed that she had no comment on the documents presented by the Nuon Chea Defense.
Victor Koppe foreshadowed his presentation with a statement that he objected to most of the Prosecution’s documents and that he would present his observations “thematically.” He started with “conditions in the coops.”
The Defense defined Ben’s Kiernan’s book (E3/1593), Henri Locard’s report “Tram Kak District in the Grip of the Khmer Rouge,” (D313/12.16, and Meng-Try Ea’s Chain of Terror (E3/2120), as secondary sources. Mr. Koppe objected to the authors’ conclusions being relied on unless and until the writers testified before the court (which Kiernan was unwilling to do) on their methodology and allowed their conclusions to be tested under cross-examination. He said Ben Kiernan’s opinion should be given, “if any…a low probative value,” because he was “a biased Marxist scholar strongly supporting the Vietnamese cause,” who had rooted his opinions on selective evidence. For example, relying only on partial statistics and anecdotal evidence, Kiernan had concluded that malnutrition took a heavy toll in 1978 without giving any weight to the effects of the Lon Nol civil war after which “when aid stopped in 1975, Cambodia was on the verge of starvation.”
Mr. Koppe had an issue with the prosecution relying on the Kiernan book to highlight the treatment of the Khmer Krom. The Defense objected “to the prosecution wedging the experience of the Khmer Krom into this section of the trial,” and, on that ground, to all the prosecution’s key documents on the issue. He not-so-subtly reminded the Bench that he “was looking forward to the Chamber decision as soon as possible.”
More specifically, the Defense counsel objected:
– to the use of a Duch Sam Hun quote from Kraing Ta Chan notebook (E3/2107) that he had wanted to go with his wife to Vietnam where there were still markets and money. Mr. Koppe said he “fail(ed) to see how this is in any way different from how (he) had tried to quote,” and accused the “Chamber (of) trying to impose a double standard.” He argued that it “goes to the general question of how torture-tainted evidence may be used in trial.” He took further exception to the prosecutor “characterizing his argument as “morally bankrupt” while the Prosecutor, himself, used similar evidence;
– to stating a notebook was from Kraing Ta Chan when nothing identified it as such;
– to the court allowing the Prosecution to quote from a document (D157.7) that appeared to be a record of a prison confession that Vietnam “only accepted those of pure ethnic Yuan,” as another example of the Chamber’s alleged “double standard;”
– to not having the original of lists of Khmer Krom families (E3/2049 and E/4082, which appear to be two parts of really only one list), nor the originals of 134 other District records. Mr. Koppe argued that non-original documents be assigned only “limited probative value;”
– to the Prosecutor’s highlighting an annotation that a woman’s Lon Nol soldier husband had been smashed because no conclusion could be drawn “from this (as to) why the husband was killed.”
After the morning break, Mr. Koppe picked up on his observations and reply telling the court that two lists of Khmer Krom (E3/2281 and E3/2262) are two of the only three Tram Kak originals from S-21. He requested that, due “to concerns about their provenance,” the originals be added to the case file. And he further pointed out that these are “simply lists, not prisoner lists and have zero probative value.
Mr. Koppe objected to a list (E3/2048) of people from Popel commune who had been evacuated from Vietnam because it is “a photocopy of a photocopy,” “it is a compilation presented as a single document,” and there are concerns about “who, when why and how” it was created. He added that, as there is “no evidence of what happened” in this document, it is of “limited relevance.”
The Defense Counsel made short work of Henri Locard’s report on Tram Kak district (D313/1.2.16). He termed it “irrelevant,” as Locard (who formerly worked for the prosecution at the tribunal), “is only analyzing documents which is what we are doing.” Further, he challenged the expertise of the author whose degrees are in English, and questioned “what expert insight does he bring?”
Treatment of Lon Nol soldiers and officials was the third theme Mr. Koppe addressed. Firstly, he voiced “a general objection” that any “targeting” of these people “must be considered in the historical and geopolitical context of the civil war that preceded DK.”
Regarding Meng-Try’s book, he noted the study was published under the auspices of DC-Cam’s Searching for the Truth program. He disclosed that earlier versions had been revised to match the advice given by Youk Chhang, Director of the Documentation Center. Mr. Koppe decried that this brought into disrepute DC-Cam’s accepted neutral status, asserting that it was really an “advocacy group.” He reiterated that, in any event, Meng-Try’s conclusions were irrelevant unless the prosecutors could establish the expertise of the author and have his research methodology tested in court.
The Defense echoed what he saw as a recurring problem with the prosecutor’s citing the reasons for prisoners’ arrests from the Kraing Ta Chan interrogator’s notebook, “Fifth Confession of the Contemptible Traitors Pol Pot and Ieng Sary” because:
– the title signified that the document had been tampered with;
– the Prosecutor were relying on a confession which was the result of interrogation and torture;
– the contents of the confession are not complete: “No one was being interrogated simply to
determine their rank but because they had done something;”
– there was only a brief summary given when what was needed were the full details of “why and
what” happened to the prisoners.
Concerning three related documents (E/2107, E3/2048 and E3/2432), Mr. Koppe singled out the middle one (an April, 1977, report from Trapaeng commune to Angkar), as “suggesting that Lon Nol soldiers were identified on that basis,” but qualified that this “requires additional evidence corroborating their fate.” He said that “from mid-1977 onwards, there appears to be a shift in records with people being identified by rank.” As this did not happen before that time, the lawyer “suggests there were two distinct periods perhaps being in line with Ta Chim’s testimony regarding Ta Mok’s announcement at a meeting that certain soldiers were not to be harmed.” He emphasized that it was “not a concession,” but that it demonstrated “the need for further investigation into provenance and chain of custody before a conclusion” could be made.
On a report by Tan of Popel commune regarding the smashing of 393 prisoners, Mr. Koppe reminded the court that Pech Chim had explained that “smashing” had two meanings: “to eliminate an erroneous mindset” as well as “to kill.” The Defense Counsel said that Pech Chim’s “test” (the red-inked cross outs) was more reliable as he was a District Secretary and advice was sought from the District. Further, the Prosecution considers him a reliable witness having cited his testimony 16 times in the judgment in Case 002/02. Therefore, Mr. Koppe argued “to smash” might mean “to transfer for re-education” rather than to execute.
Mr. Koppe observed that Mr. Lysak had produced no documents showing a policy of treating ‘new people’ differently, and suggested that there were other reasons ‘new people’ were punished as there were “bad elements among” them.
The Defense said the prosecution was relying on interrogation notebooks to conclude that arrests occurred because of criticisms of the Party or Angkar. Mr. Koppe again objected to the summary form of the notebooks, and said the “need for corroboration and confirmation of the prisoners’ fate” meant the notes could have only “a limited use.” He dismissed arrests triggered by complaints over food and working conditions as being “clearly and convincingly contradicted by all cadres.” Neither would Mr. Koppe accept these summaries as proof re-education occurred for even more serious offences without seeing additional documentary proof. He posited that information obtained from interrogation might be different than the reasons why the prisoners had been arrested.
Mr. Koppe cautioned that the arrest of those who had tried to escape or for “moving around,” had to be seen in light of “severe internal factions and internal rebellion which made it reasonable that someone would be detained.” He further replied that the documents, again, gave no indication of the ultimate fate of such prisoners.
He then brought to the attention of the parties that the Prosecutor had left out such key points from the story of the ten-year old boy who had been arrested as that two weapons and a supply of bullets had been found among the group with whom he had been apprehended.
The Defense belittled the prosecution’s two key documents concerning procedures for arrest and execution. Henri Locard’s report he dismissed as not rooted in any documentation of revenge killings of new people or proof that the executions were centrally planned. He expressed “concerns about the probative value” of the documentary, Deacon of Death. He disparaged it as a form of therapy not a record of a legal forum, and for lacking verification of people’s names and the accuracy of the subtitles.
Neither was he happy about the documentation from Kraing Ta Chan (E3/2012), of July 11, 1977, supposedly from An about a prisoner’s confession implicating another prisoner. Mr. Koppe said it is unclear in whose handwriting the annotations were, and that he had concerns about the chain of custody as the paper appears to be a consolidation.
Mr. Koppe found no foundation for the prosecution’s conclusions that two monthly reports (E3/2109 and E3/4085) from Kraing Ta Chan were actually about Kraing Ta Chan as there was nothing so indicating on the documents themselves. He argued that as the first document contained additional information on the issuance of rice and manioc it was unlikely that they were from Kraing Ta Chan.
Concerning E3/?853), a report of the Southwest Zone to Angkar, June 3, 1977, Defense counsel objected to only selective information being available on this key document. To wit:
– as this report is labelled “Report #10,” he questioned where Reports 1-9 are;
– that although a serious defense situation is described it “doesn’t reflect the paranoia enemy shelling into the territory, (the incursion of) Vietnamese troops into Cambodia, and burning children alive” engendered;
– that it is “only a directive on a particular proportionate and reasonable response and is too generic to be used to make (wider) conclusions.”
Mr. Koppe had much to say about the Civil Party oral presentation. He disapproved vehemently to the technique they used of quoting from Civil Parties who will not appear in the courtroom. He avouched that although document hearings are to highlight key documents that may not otherwise be explored in court, the Civil Parties could testify in court but had not been requested to do so. The counsel emphasized that “the hearings should focus on contemporaneous documents” not “quasi-testifying that prevents follow up testing of that evidence.” He requested “more clarification about document hearings,” from the Tribunal.
Mr. Koppe ended his presentation on a final note of dismay. His client, Nuon Chea had been “angry about the treatment of the Khieu Samphan team on Tuesday.”
Kong Sam Onn was fairly brief in his remarks. He criticized inclusion of Ben Kiernan book on the basis that Kiernan’s lack of appearance put the book’s excerpts’ “probative value in question.” He also had issues with “irregularities” in the author’s work over such matters as contrasting facts concerning food rations. When Mr. Kong read in from two Revolution Flags (E/139 and E3/25), Mr. Lysak rose to say he wanted the “record noted that he didn’t present these. (That) these were documents that they (the Khieu Samphan Defense) had planned to read on Tuesday.” Mr. Kong continued and admitted that he was then “raising policies as Khieu Samphan had nothing to do with practice on the ground, that the Prosecutor hasn’t shown a link between Khieu Samphan and what was going on on the ground.” When he asked permission to present CPK policies, the President allowed him to do so, notwithstanding the Chamber’s prior rulings on Tuesday against same.
Mr. Kong then went on to deal with the prosecution’s documents on the categorization of people into “base, candidate (reserved) and depositees.” He claimed E3/742 “shows different types of work forces for the purpose of good collaboration in achieving work outcome.”
Khieu Samphan’s Defence Counsel echoed prior objections to prosecution documents on the retaking of Khmer Krom territory and the treatment of the Khmer Krom as “out of the scope of the current proceedings,” so, “would prefer not to respond further” on these topics.
Concerning Lon Nol officers and officials, Kong Sam Onn attacked the Prosecutor’s six points as two points “were on a general situation,” “four were on specific events,” but “none had any relationship with Tram Kak District.” The import of key documents on those arrested for stealing food and chasing ducks into the fields to eat rice, the counsel sought to nullify by quoting Pech Chim that offenders were re-educated and not sent to Kraing Ta Chan.
Mr. Kong attributed no probative value to the Civil Party oral presentation as the individuals had not been called and were not going to be called to defend their evidence. Also, he refreshed the memory of the Tribunal that the Lead Civil Party Co-Lawyer, Ms. Guiraud, had admitted that there were many discrepancies in testimony in the victims’ information forms. He quoted Ms. Guiraud saying that she was a “spokesperson” for the Civil Parties but the Defense Counsel disagreed with this, saying that she had that function only for reparation claims. Summarily, he concluded that the Civil Party presentation relying on the forms “did not lend itself to ascertaining the truth and the information (was) not of a probative value.”
Court adjourned early and will resume Monday, May 3, 2015, with witness 2TCW979 who will appear by video conference.