“Angka Wanted To Eat Their Own Children”-Last witness of the first appeal hearings

On July 6, the last day of the first appeal hearings on case 002/01, the Supreme Court Chamber (SCC) heard the testimony of witness SCW-5, Mr. Toat Toeun.

There were nine civil parties present in the courtroom.

Mr. Toeun was summoned by the SCC after Nuon Chea’s Third Request to Consider and Obtain Additional Evidence. There, Nuon Chea’s defense explain that Mr. Toeun “is the best placed witness to test Nuon Chea’s key overarching defence in both segments of Case 002: that the CPK was a deeply fragmented Party at its highest levels because some of its leaders – chief among them [redacted],- were set against the Party’s putative leadership in a bitter power struggle. For both of these reasons, the Defence would have vigorously sought testimony at trial had it known of his existence.”

They go on to say that if his identity is correct, “he is to Ruos Nhim what Heng Samrin is to Sao Phim: the loyal deputy in a position of unparalleled access at the time the crimes charged in Case 002/01 were committed, who later took up the fight against Pol Pot and Nuon Chea after their principals were defeated. For these reasons, [redacted] evidence, like Heng Samrin’s, is absolutely essential to the proceedings.”

Then in the appeal brief paragraph 462, Nuon Chea’s defense says that “until the Defence is given the opportunity to examine this critical witness, the evidence of a series of low ranking soldiers who continually contradicted themselves and each other should be deemed insufficient to establish any of the facts in dispute.”

The response by the prosecution to the defense’s third request is available here and the decision by the SCC is available here. In the decision, paragraph 19, the SCC says:

“The Co-Prosecutors contend that the subjects defined by NUON Chea are neither relevant nor exculpatory vis-a-vis the allegations in Case 002/0l. The Supreme Court Chamber takes note of this submission; however, it is of the view that, as argued by NUON Chea, at this stage of the proceedings it is sufficient for the defence to show prima facie that the material may have exonerating or mitigating value for the defence. Considering that NUON Chea’s key contention is that the CPK was a highly fragmented party, with RUOS Nhim wielding independent authority over crimes attributed to NUON Chea in the Trial Judgment, such material as described by the Request would be subject to disclosure under Internal Rule 53(4), and, where it has not been disclosed earlier, should be disclosed on appeal.”

Mr. Toeun took the stand.

He was born in January 1955 in Battambang Province. He is currently a brigadier general in the Royal Army of Cambodia. He has seven children in total from two marriages. His ex-wife is deceased.

Mr. Toeun recalls that he was interviewed by the OCIJ in 2013.

Mr. Victor Koppe, defense counsel for Nuon Chea, starts the examination.

Foster son of Mol Sambath alias Ruos Nhim

Mr. Toeun confirms that Mr. Toeun was the foster son of Mol Sambath alias Ros Nhim, the leader of the Northwestern Zone during the DK.

Mr. Toeun says he knew Ruos Nhim since 1960 because Nhim stayed at his house two to three times a month, but does not know why he was adopted by him. Mr. Toeun recalls Nhim’s two biological children and various adopted children like himself. Mr. Toeun says that he cannot recall it well but that one of Nhim’s adopted children was a commander of a division in the Northwest Zone. Nhim’s oldest son, Chil alias Chhnang, Mr. Toeun recalls, was the deputy chief or chief of sector 5 and was married to the daughter of Sao Phim, the leader of the Eastern Zone.

Mr. Toeun recalls that he accompanied Nhim to the conference at Phnom Penh but cannot recall whether it was in May 1975. He says that Nhim went to visit Sao Phim for a week after that conference. Mr. Toeun also recalls that Phim would visit his daughter in the Northwest Zone and would share the same house as Nhim, but Mr. Toeun does not know what they talked about.

Mr. Toeun recalls that Nhim had “a smiling face all the time” and “never blamed any of his immediate subordinates.“ During the war, Mr. Toeun recalls, Nhim’s office was number twenty.

Mr. Koppe then asks if Mr. Toeun has a photo of Nhim as the defense has not been able to locate any. Mr. Toeun says, though, that he saw a photo of Nhim in Tuol Sleng (S-21) in room three and that it was labeled as Ruos Nhim. Mr. Toeun said that later he went to look for it and it was gone.

Mr. Toeun says he started as a messenger in the Northwest Zone. Mr. Toeun then names the four top commanders in order of rank of the Northwest Zone during the DK.

When asked, by reading the declaration of another cadre, whether it was correct that Nhim was aggressive and Ta Himtiv alias Ta Pet (either the second or fourth in the Northwest Zone) was a gentle, Mr. Toeun says that Ta Pet’s appearance seemed gentle and moral like a monk or artist. “On the opposite, Ta Nhim, when he was angry or when he did not feel well, he seemed aggressive. There was one time that I observed he was aggressive when he had an infection in his mouth,” Mr. Toeun says.

Mr. Toeun says he never met Nuon Chea face-to-face.

Mr. Koppe then asks him about his studies after 1979. Mr. Toeun says he studied in the Soviet Union for eighteen months in a military academy from 1980 to 1983. He says he was promoted to brigadier general in 2001.

Military career (1970-1979)

Mr. Toeun confirms that he joined the Khmer Rouge after the coup in March 1970, and then became a regular combatant. He worked as a courier and then became chief of couriers around 1973.

Mr. Toeun said that during the active combat against the Lon Non forces (1970-75) he was in charge of communications from the main front to the headquarters. “Whether an advancement or retreat had to be made,” Mr. Toen said, “I relayed such information form the commanding officer at the headquarters to the front battlefield.” Mr. Toeun said he reported directly to Nhim, presumably at office M-20.

Subsequently he became deputy chief of the general staff of the Northwest Zone allegedly around 1975. (Mr. Toeun gave contradictory testimony or could not remember whether this appointment was in 1975 or 1976: either after the conference in Phnom Penh (May 1975) or after the Thai bombings (February 1976) – to Judge Milart he would later say it was during the second half of 1975).

As deputy chief, he was in charge of the warehouses, logistics, and rice farming for the military, ammunition and transportation. “My main role was to gather weapons and ammunition and any war spoils and maintain in a warehouse,” Mr. Toeun said.

Afterwards, Mr. Toeun confirmed that he was sent to China in January 1976 to become a pilot. Mr. Toeun said he had never been a full rights member of the CPK.

20,000 weapons

In Mr. Toeun’s OCIJ statement, he said that he had collected around 20,000 weapons coming from Lon Nol Soldiers and that he had stored them. Mr. Toeun confirmed that the weapons were collected from the Lon Nol soldiers and stored in a warehouse in a bamboo forest under the instructions of Nhim.

Mr. Toeun says that the reason they were collected was the the weapons were not clean and they were scattered in banana farms. He then added and that for this reason he was told to collect and keep them in a warehouse by Nhim. The ammunition was stored separately.

Mr. Toeun said that the reason they were kept in the bamboo forest was to make it difficult for other people to find them. He explained that after the rainy season the bamboo would grow and no one could find the warehouse without a map. Mr. Toeun has no idea whether the reason was to hide them from the party center.

Mr. Toeun confirms that only Nhim and himself knew about the weapons. Then he adds that Ta Rong, Ta Chum, and Ta Chao, who were old at that time in the their late 60s, knew as well . Mr. Toeun does not know if Son Sen had any knowledge of the storage of these weapons.

Judge Milart interrupts, in the interest of time she says, to ask a few questions. Mr. Toeun tells her that he was the one who transported the weapons—he was the driver of the vehicle—and that he was the who selected the people who built the warehouse. He adds that the the three people he had mentioned were the ones who built the warehouse.

He then explains that the weapons were uploaded by the people in the field and that he was the only driver to the warehouse. When he arrived at the warehouse., Mr. Toeun explains, the three people he had mentioned, transported the weapons and cleaned them with oil.

Armed rebellion?

Mr. Toeun says that he used the weapons to fight Pol Pot later.

Mr. Toeun says though that the original intention or rationale was not to fight Pol Pot. He then says that he was arrested by mistake two times in 1978 and that because of this he made a decision that he could not stay and work for Nhim and Pol Pot. He sais that he mobilized forces so that they could protest. He says that he could mobilize them because they had been accused of stealing rice.

When Mr. Koppe asks if Mr. Toeun had at some time mobilized thousands of people for an armed rebellion as he allegedly said in his OCIJ interview, Ms. Guiraud objects as the scope of this appeal is from 1975-1977 and the witness is talking about events in 1978. This would mean that the line of questioning is outside the scope of the appeal.

Mr. Vercken and Ms. Guiraud start debating back and forth on the scope until Judge Milart stops them and says the question is directed towards the command structure of the CPK and the Bench wants to hear it. She adds that this discussion doesn’t help.

When Mr. Koppe asks again if Mr. Toeun had used the 20,000 weapons to start an open rebellion, Mr. Koumjian objects but it is overruled.

Mr. Toeun insists that the weapons were not stored to start a rebellion against Pol Pot in the first place.

No longer the foster son of Ros Nhim

Mr. Toeun then describes the two times he was arrested by mistake. He said that he confronted Nhim both times. Nhim denied any involvement in his arrests. The second time he confronted Nhim, Mr. Toeun says he handed him a loaded gun and asked him to shoot him and told him that if he “could not kill me with a bullet, I would kill him back.” Nhim then allegedly said it was not him but that it was the people form the party center that wanted to arrest him.

Mr. Toeun said that he told Nhim that they were no longer related. “We’re no longer adopted son and foster father,” Mr. Toeun said he told Nhim. “And from that time I decided to defect form Angka—at that time the term Pol Pot was not used—and that anyone who followed me would be shot by me,” he continued.

Nhim told him to be patient but Mr. Toeun said he replied that he could not longer bear the situation as people were called into study sessions at Phnom Penh and then they disappeared. “Because of this incident, I started thinking of taking the weapons to start the rebellion,” Mr. Toeun said.

Mr. Toeun said they had this idea to rebel because they could not longer live in that regime. He said that many of his colleagues disappeared. He said that he implored Ta Pet at his house to start a rebellion, and that he should be his superior in the forest. Ta Pet said that he was too old. Then, Mr. Toeun said, he went to implore Ta Keo and explain that “Angka wanted to eat their own children” and that he could not stay in Angka and needed to protest and start the rebellion. Ta Keo said he needed to consult with others because he could not go alone.

Rebellion?

Mr. Koppe says that that is all very interesting but “is it correct that Nhim, Sao Phim and others started having plans to openly rebel against the government?” Koppe asks.

Mr. Toeun says that he cannot say if that is correct. “In fact there was no plan to rebel,” he added “We were planning to demand to the center that people should be allowed to return to their homes and that money that had been printed should be put back in circulation.”

Mr. Toeun then says that he was not aware of any plot in 1975 to assassinate Pol Pot, or spread chaos by starting a war with Thailand. Mr. Toeun is also not aware of any plans to join forces with the East Zone and attack Pochentong airport.

Vietnamese fourth plenum in 1978

Mr. Koppe attempts to ask if the witness knows about the fourth plenum of the Vietnamese Communist Party in 1978. There are strenuous objection from the civil parties and the prosecution as to the source of this question and because it is outside of the scope of this appeal. The Chamber seems to sustain the objection but then allows it. The witness Mr. Toeun, says he doesn’t know anything about this.

Arrests and 2,000 men

Mr. Toeun confirms that both of the attempts to arrest him failed him. He said that after they both failed, there were nine men who left with him and they considered themselves to be thieves as they needed to steal rice.

Mr. Toeun said that they told him that “they would die if they did not revolt.”

Mr. Koppe reads from Mr. Toeun’s statement where Mr. Toeun said that he had fled into the forest with 2,000 men and that at some point all the sectors of the Northwest zone, except sector seven, had come under their control. And that furthermore, they had liaised with Heng Samrin and started open combat against the South West zone.

Mr. Toeun responded that this struggle had no proper structure. He insisted that at the beginning there were only nine of them but later more people joined them. He confirmed that he was able to mobilize 2,000 people to fight with him.

Mr. Toeun says that he only met Heng Samrin when the United Front of Cambodia arrived in Battambang, not before.

Arrest of Nhim

Mr. Koppe asks if Mr. Toeun thinks it is correct that Nhim was arrested with a helicopter. Mr. Toeun responds that there were no helicopters at that time.

The Court breaks for lunch.

—

After lunch, the SCC gives twenty-five extra minutes to Mr. Koppe.

Mr. Koppe asks the witness Mr. Toeun about the “final attacks” on Pursat and Battambang and other cities in the Northwest Zone in the first months of 1975. Mr. Toeun confirms that it was Nhim that led the attacks. He also confirms that Kleng was part of the general staff and was involved in the planning of the attacks. Mr. Toeun says he was only a courier at the time.

After the Lon Nol soldiers were defeated, Mr. Toeun said that people felt “very happy and delighted about that.” He then added that “the happiness turned into distress” because people were evacuated from their houses into the forest. “No more houses for people,” Mr. Toeun said.

Mr. Toeun then explained that the former Lon Nol soldiers were gathered and transported in CMC trucks to welcome King Sihanouk.

“I felt jealous at that time,” Mr. Toeun continued, “because I was thinking that I had lived in the forest for so long and I was not allowed to go and welcome the king. Ten days later, I realized the soldiers had been taken away and killed.”

Mr. Toeun does not know who was in charge of the killings.

(At this point, the videos publicly available, as of this writing, cut off. Coincidentally, as on July 3rd, the end of Mr. Koppe’s testimony and the beginning of Mr. Vercken’s are not available.)

The videos resume with the end of Mr. Vercken’s examination.

Mr. Vercken, co-lawyer for Khieu Samphan, was in the process of asking Mr. Toeun of the alleged three-hundred men that Mr. Toeun sent, at Nhim’s request, to protect Nhim.

“Does this not suggest a degree of cooperation? It’s quite something to send him three hundred men for his protection.” Mr. Vercken asks.

Mr. Toeun responds that Nhim requested the three hundred men and that he agreed to provide the three hundred soldiers with weapons on the conditions that his men would not be shot. “It was not a cooperation, it was a request made by him,” Mr. Toeun said.

Mr. KONG Sam Onn, national co-lawyer for Khieu Samphan, then asks questions about whether Ros Nhim instructed him how to hide the weapons. Mr. Toeun responds that Nhim only told him to keep the weapons well and clean them. Mr. Toeun also responds that Nhim did not instruct him as to the dimensions of the warehouse as he himself had experience with building warehouses during the war.

After he defected and returned to fight against the Khmer Rouge, Mr. Toeun explained that he captured seven soldiers with “white complexion” that he first thought were Chinese, who were aiding the Khmer Rouge. “Only after I captured them,” Mr. Toeun added, “they told me they were Vietnamese soldiers lending their support to the liberation front of Heng Samrin.”

The defense rests, Judge Milart asks some clarification questions, and the floor is given to the Civil Party Co-Lawyers.
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Ms. Guiraud, International Co-lawyer for Civil Parties, takes the floor first.

Mr. Toeun confirms that he went to China in January in 1976 and returned after the water festival of that year. When Ms. Guiraud says that his OCIJ interview says that he returned in November 1977, the defense objects as to the use of the document. After some discussion, the Bench allows the civil parties to use the document, and considering that the prosecution says that it does not need the document, stands by its prior decision to not allow the prosecution to use it.

The witness says that November 1977 sounds about right for his return, (there is not attempt to clear up the discrepancy). Mr. Toeun adds that he was not kept abreast of what was happening in Cambodia.

Conference in Phnom Penh

Mr. Toeun says that the conference he has been speaking about in Phnom Penh that he attended with Nhim in 1975, lasted for about a month. Mr. Toeun says that he drove Ruos Nhim but does not know where the conference was held as he did not drive Nhim to the conference venue.

Visits from Upper Angka to the NW Zone

Mr. Toeun says that he did notice people from the upper Angka visited the Northwest Zone but he did not know who they were as the windows of the cars were all tainted black. He did not dare to ask who they were.

Mr. Toeun does not recall if this visit occurred in August 1975. He does recall they visited Ruos Nhim’s house but does not know where they went after.

Ruos Nhim and Nuon Chea

Ms. Guiraud points to the fact that although Mr. Toeun had told Mr. Koppe that he had heard of Nuon Chea’s name but had never met him personally, his OCIJ interviews says that he knew that Nhim and Nuon Chea had been friends for a long time, had studied in Thailand together, and had been ordained as monks at the same time.

Mr. Toeun says that his foster father, Nhim, told him about Nuon Chea’s background but does not add anything to what he had said in his OCIJ interview.

Ms. Guiraud asks about why he had said in his OCIJ interviews that Nhim had told him that “Nuon Chea betrayed us.” Mr. Toeun explains that it was not Nhim that told him that, but it was him that told Nhim that perhaps “Nuon Chea has betrayed us,” and that is why people from the NW Zone were being arrested.

The civil parties rest and Ms. SONG Chorvoin, national prosecutor, takes the floor.
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She starts by asking him about what happened to the former Lon Nol Soldiers who had put down their weapons in Battambang Province. Mr. Toeun repeats that they were allegedly invited to welcome the late king, but that he later learned that they were killed. He sais that Noh (phonetic) told him that they had been killed and that if he had gone with them he would have been killed to.

He said that while the soldiers were being transported they were shouting “Bravo” to the late King Sihanouk.

Mr. Toeun does not know why the soldiers were gathered up to be killed or at what level the decision was made.

Ms. Chorvoin then asks if the visits from the upper Angka were regular, either once a month or every fortnight, as he had allegedly told the Civil Party lawyer. Mr. Toeun then says that the visits happened two or three times in total.

Ms. Chorvoin then ceded the floor to Mr. Nicholas Koumjian, international co-prosecutor.
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Mr. Toeun told Mr. Koumjian that there was one to three messages every day from the North West zone to the center. Mr. Toeun clarified that by center, he refers to the upper echelon. Mr. Toeun then said that at the beginning of the campaign (before April 75) he received one message from the center every two days but he could not speak about how many messages the other two messengers received.

Mr. Toeun then said he delivered messages to Phnom Penh after April 1975. He said that he delivered the messages to the messenger office situated opposite of the royal palace in Phnom Penh. The office chief there was Pang.

Mr. Toeun then told Mr. Koumjian that he once transported Kampuchea Krom or Vietnamese back to Vietnam. He said that he stopped at Phnom Penh got a message from Pong and continued to Vietnam.

Mr. Toeun did not know the function of Pang but Mr. Koumjian pointed the chamber to the judgment paragraphs 211-14 and paragraph 383. Paragraphs 211-14 describe that Pang was the head of office 870. Paragraph 383 does not mention Pang. Mr. Koppe added that Pang was later executed for treason.

With that the prosecution rests and the President gives the floor to the bench.

Judge MONG Monichariya asks about whether Mr. Toeun attended any re-education sessions or training sessions. Mr. Toeun said he did not attend any meetings but then says he was with Nhim when he led the re-education sessions and that they sometimes lasted for three days. Judge Monichariva did not ask more about this subject.

Mr. Toeun said that after April 17, 1975 the tone of the education sessions switched from that of the popular democratic revolution to the socialist revolution. Mr. Toeun also said that during the education sessions, they talked about cooperatives but he did not know what cooperatives were at that time.

Mr. Toeun confirms that he does not have “a great understanding” of why people were evacuated or why Lon Nol soldiers were arrested.

Judge Monichariva asks Mr. Toeun about Noh, who was the one who had told him, ten days after, that the soldiers, whom he had seen being trucked away to welcome the King, had in fact been killed.

Mr. Toeun explained that Noh was the personal body guard of Ta Nhim but does not know where he learned about the killing of the Lon Nol soldiers. Mr. Toeun explained that he complained to Noh about the fact that he had not been allowed to go welcome the King, even though he was so committed to the revolution. Mr. Toeun said that Noh then told him not to complain at those soldiers had in fact been taken away to be killed.

Judge SOM Sereyvuth then says that “he is not convinced” that people ran away into the forest “in the thousands” to join Mr. Toeun in the forest after he had defected.
Mr. Toeun explains that after he launched his attack, he became very popular. Mr. Toeun also said that he had his own resources and he provided rice to the people who defected.

Judge Milart subsequently focuses on how many trucks Mr. Toeun saw carrying away Lon Nol soldiers. Mr. Toeun replies that he does not remember exactly but he says that there were more than ten trucks. He then says that each truck consisted of thirty to forty soldiers and confirms that the soldiers were in military gear: “some with ranks but all in uniform,” he said.

Judge Milart asks about whether he knew about any policies of the Khmer Rouge related to Lon Nol soldiers. Mr. Toeun sais that he overheard Ta Keo speaking about that the policy was to “smash all former imperialists and feudalists.” Mr. Toeun said that this meeting happened after April 17, 1975, after he saw the trucks but before the conference in Phnom Penh. Mr. Toeun explained that the meeting consisted of Ta Keo, Ta Nhim (who chaired the meeting), Ta Pet, Ta Shi, Ta Van, Ta Tom, Ta Heung, Ta Soi, and Ta Seu (all phonetic), chiefs of sector. Mr. Toeun explained that the policies were ordered by the upper echelon. Mr. Toeun confirmed that he overheard it himself.

Mr. Toeun explained that Ta Keo was the speaker and that by “upper echelon” he understood that it referred to the party center.
Judge Milart then asked if she had understood Mr. Toeun’s testimony correctly when he had said that before the conference in Phnom Penh some people expressed their opinions that Lon Nol soldiers should be allowed to return to society, but after the meeting in Phnom Penh the policy was announced.

Mr. Toeun responds that the “purpose of sector and zone leaders was to spare the lives of the former soldiers and they wanted people to return to their respective houses. This was the sole intention of sector chiefs,” Mr. Toeun added, “and they also wanted money to be in circulation.”

Judge YA Narin asked Mr. Toeun about office 560. Mr. Toeun explained that office 560 was office 20 before. Mr. Toeun said it was under the zone authority.

Office 870, Mr. Toeun explained to Judge Narin, was led by Pang and it was located in Phnom Penh. Mr. Toeun then said that he only delivered personal messages from Ruos Nhim to Pang in person, not from office 560. Mr. Toeun said he delivered messages to Pang from Ruos Nhim three times.

Mr. Koppe asks permission to ask a question and the court grants him permission. Mr. Koppe asks why it was necessary for Ruos Nhim to kill the Lon Nol soldiers so quickly. Mr. Toeun says he does not know.

Judge Chandra Nihal Jayasinghe asks why Ruos Nhim needed three hundred soldiers from Mr. Toeun’s forces. Mr. Toeun explains that by that time all the soldiers under Nhim had been arrested.

Judge Chandra then asks why Nhim did not join Mr. Toeun in the forest, where according to the judge, Mr. Toeun had 4,000 men, and Nhim’s arrest was impending.

Mr. Toeun explained that he asked Nhim to be the leader of the resistance but he refused and said he only needed 300 men to protect him. Mr. Toeun said that ten days or a fortnight after this offer, Nhim was arrested. Judge Chandra does not go any further.

The President, Judge KONG Srim, adjourns and the first appeal hearings of the SCC in case 002/01 come to an end. The SCC will notify the parties about the next hearings.

The Trial Chamber will continue its hearings on case 002/02 on Monday July 27, 2015.