Working at Trapeang Thma Dam as a Child

Featured Image: Witness Sot Sophal.

 

Today, witness and former child unit worker at Trapeang Thma Dam Sot Sophal finished his testimony, before oral submissions were heard on several issues. Sot Sophal testified that he only saw two people being killed at Trapeang Thma Dam in contrast to what had been said in his Written Record of Interview, but stood by his statement many people died from exhaustion there. The submissions related to the calling of an additional witness, issues of confidentiality with regards to the expert witness as raised by the International Co-Investigating Judge, and disclosures.

Punishments at Trapeang Thma

At the beginning of the session, Trial Chamber President Nil Nonn announced that in today’s hearing, Sot Sophal would provide the remainder of his testimony. Following the conclusion of his testimony, two oral submissions would be heard. The first oral submission related to the request by Nuon Chea to call an additional witness in relation to Trapeang Thma Dam.[1]

The second submission related to a quest made by the international Investigating Judge in relation to the expert Ysa Osman and his concern for issues of confidentiality.[2]

The Trial Chamber Greffier then confirmed the presence of all parties with Nuon Chea following the proceedings from the holding cell. The floor was then granted to the Co-Prosecution.

 

Senior Assistant Prosecutor Travis Farr inquired how often Mr. Sophal personally or his group failed to meet the work quota. He replied that they had to be present despite their weakness and sickness. If they failed to meet the quota, the ration would be reduced from three ladles to two ladles of gruel.

Mr. Farr referred to the witness’s Written Record of Interview, in which he had said that they collected the burnt part of the skin of potatoes if food rations were reduced and that they would have been smashed if they would have been caught.[3] Mr. Sophal replied that he would sometimes secretly pick it up with their food. They would be tortured if they were caught.

As for water, Mr. Sophal stated that if they were working near a lake, they would drink the water out of the lake. If they were far away, maybe around 500 meters, water would be transported to them by truck. They received enough water and could fill their bottle for the day.

Mr. Farr then inquired how old the people were that according to Mr. Sophal were carrying long swords or knives. Mr. Sophal replied that they were in groups of three. For example, a woman would be carrying a weapon while the two young people would carry swords. The weapon that the woman was carrying was a small rifle. Mr. Farr inquired whether they were militia, soldiers or guards. Mr. Sophal replied that he heard them being referred to as militia. Asked about the level they were associated with, Mr. Sophal replied that he did not know where they or their orders came from.

Mr. Farr turned to the incident where a person had been tied to a wooden frame and asked whether this only happened on one occasion or several times. Mr. Sophal replied that he only witnessed it once. The group of the three people took him away.

Mr. Farr asked whether he ever witnessed the militia see any beatings. Mr. Sophal confirmed this. However, the beating was not so severe that they would collapse. He did not know the reason for their beating. Maybe the militia “did not have anything to do” and “[poked] the workers for fun.” People would be poked with the sword if people did not work hard enough or suffered from fever. This took place at the work place.

Mr. Farr inquired whether he had ever heard about the existence of special units for people who were referred to as lazy. Mr. Sophal replied that this special unit did not exist in his area. Instead, there was a unit for hard working workers.

 

Arrests and Killings

Mr. Farr further wanted to know whether Mr. Sophal had ever seen people being tied up and guided away. Mr. Sophan confirmed this and said that he sometimes saw this every few days, but he did not know where they were taken to. They were taken for reeducation at the chief’s place, but he did not know where this was located. The militia who were watching the workers tied the workers and led them away. The people who were led away were not from his unit but were working close to Mr. Sophal’s unit. They would alert each other when the militia was coming. They would alert each other to work harder. When they left, they would work “in a normal way.” He did not know the reasons for their arrests.

Mr. Farr then inquired whether Mr. Sophal was ever asked about his biography or personal background. Mr. Sophal replied that he did not make his biography, nor did he see anyone do it.

As for the house of the chief, he did not know where he was located. The person who was in charge was Ta Val. They were taken to the chief’s house. He knew that his chief was Ta Val. Mr. Farr asked how Mr. Sophal was able to know that the people never returned, given that they worked in another unit. Mr. Sophal replied that they were working in the group nearby. When they were close to each other, he could see that one person of the group was missing. Sometimes the person who was missing was replaced by someone else. “We could see straight away that it was not the same worker.” There were also children workers who were arrested. He could not give an estimate about how many people were arrested, since on some occasions only one worker would be arrested, while other days several workers would be arrested. He did not know what happened to these workers. Neither did he know where they were detained.

Asked whether he ever saw anyone being killed, Mr. Sophal confirmed this. “I saw some in various places.” It would occur “not very often”, perhaps “once every ten days”. He saw it twice while he was working there. Afterwards, they would bury the bodies. They brought one at the time “to deter us”. Around ten days, they would bring the next person. They were warned that they had to follow orders, or they would encounter the same fate. He did not know where the militiamen who brought the people in were positioned. They brought a person “and killed [him] in front of us.” He estimated that 50 to 100 people might have witnessed the killing. They killed the person at the dam site. To his recollection, it was around 100 meters away from the corner of the dam. They had to carry earth to cover the bodies. Other workers buried the dead person at the bottom of the dam. The militiamen killed the people. They used a stick to beat the person to death.

 

Living Conditions

Turning to the next topic, Mr. Farr inquired about health conditions at the dam. Mr. Sophal replied that they were weak. They would be accused of having the conscious illness sometimes. One time he was sick and they brought him pills that he did not recognize. They had to continue working when they were sick.

In terms of hygiene “it was nothing, actually.” They did not have any latrines but could relieve themselves everywhere. They had to collect the urine to use it as a fertilizer.

Mr. Farr stated that Mr. Sophal had stated in his interview that he ran away and asked about the reasons. Mr. Sophal replied that he was weak and overworked. This is why he took the risk and ran away. He reached a place that “was a little bit better”, where he had potatoes and where he continued working. One day he heard screaming, because people were pushed into pits with a tractor. He could not recall the date when he escaped, but thought that it might have been two or three months before the liberation. He would eat raw potatoes at the time.

 

Escape to another Location

Mr. Farr then asked whether Mr. Sophal could give an estimate how far from Trapeang Thma the place that he reached and saw the workers being pushed into a pit with tractors was. At this point, International Khieu Samphan Defense Counsel Ms. Guissé objected, arguing that the new site was not under the scope of the trial. Mr. Farr replied that he had inquired how far the new location was away from Trapeang Thma dam. If it was close enough to be considered belonging to Trapeang Thma, there would be no problem. If it was not close enough, he would seek the Chamber’s leave to put limited questions about the equipment that was used there in light of the fact that he had said no equipment was used to build Trapeang Thma Dam. The objection was overruled.

The witness estimated that it was located around 60 or 70 kilometers away from Trapeang Thma. Mr. Farr asked whether the tractor could have been used to help the workers to construct the Trapeang Thma dam.

At this point, Nuon Chea Defense Counsel Victor Koppe objected to the question and reasoned that it was a speculative question. Ms. Guissé also objected and said that the question was out of scope. Mr. Farr clarified that he wanted to know whether the equipment was of a type that could have been used to assist the construction of Trapeang Thma work site. Despite the witness’s age at the time, Mr. Farr argued that he was able to answer this question. Mr. Koppe replied that he recalled the witness saying that he had not seen equipment at Trapeang Thma and that he therefore could not make a comparison. The objections were upheld. 15 more minutes were granted to the Co-Prosecution and Civil Parties.

 

1977 Speech by Khieu Samphan

Mr. Farr asked for a reaction to a speech that Khieu Samphan had given in April 1977.[4]

Ms. Guissé objected to the question and said that the witness had no connection to Khieu Samphan. The Prosecution could therefore use the quote in final submissions, but it was not appropriate to use it now. Moreover, it was not in the time frame. Mr. Farr replied that the speech was delivered in April 1977, which was the exact time that the dam was constructed. In this speech, Khieu Samphan spoke about children in Democratic Kampuchea.

The President was asking whether the witness had been present at that time and that he had not heard the Prosecution asking this question before. If he had not been present, he was in no position to answer the question. Mr. Farr replied that the only way to find out whether the witness had been present was to read out the quote. Ms. Guissé suggested asking whether the witness had been present at any speech delivered by Khieu Samphan. National Civil Party Lead Co-Lawyer Pich Ang stood up and said that the quote could be used to compare working conditions. The President instructed Mr. Farr to read the quote.

“Our children do not play with toy cars, toy boats and toy guns, which were formerly imported at considerable cost. Our children are happy with driving sparrows away from the crops, tending cattle and buffalo, collecting natural fertilizers and helping to build dams and embankments and dig reservoirs and ditches.”

The President announced that the objection was overruled.

The witness replied that he did not understand the question. Mr. Farr read out a shortened version of the quote and then asked whether the witness had been happy to build the Trapeang Thma dam. The witness could no answer the question. At this point, the President adjourned the hearing for a break.

 

 

Conditions at the Dam

After the break, the floor was granted to the Lead Co-Lawyers for Civil Parties. Pich Ang asked whether the witness was happy with the work that he was assigned with at Trapeang Thma dam. “When I was working there I was not happy. How could you be happy?”  Mr. Ang said that the quote that Mr. Farr had read out had stated that children were happy. He asked whether the quote was therefore a correct reflection of the work.

At this point, National Khieu Samphan Defense Counsel Kong Sam Onn objected. First, he argued that it was a leading question. Second, he stated that the witness could not speak for other children. The objection was overruled.

Mr. Ang proceeded to quote parts of the speech: “our children were very happy with all the tasks, such as building dams and digging canals.” Ang asked whether children were happy doing these tasks at the time. Mr. Sophal replied: “That was what he said, but actually, I myself was not happy. How could we be happy, because we could not go to school? How could we be happy carrying dirt, carrying fertilizer? How could we be happy? We could have been happy if we could go to school, but we were made to work very hard. We did not even have anything to wash our hair. How could we be happy in that condition?”

Mr. Ang inquired whether he went to school during that time. Mr. Sophal denied this: “I could have been literate if I were able to go to school. But at the time we learned how to dig the cannel, how to dig earth, how to collect the fertilizer. That was what we learned.” Mr. Ang asked whether he wanted to go to school. Mr. Sophan replied that they could not even think of going to school, since there were none.

Mr. Ang inquired about his children’s unit and how many members his unit had. Mr. Sophal replied that it were around 1,000 or 2,000 members in his unit. “I did not know where they took the children from. But they recruited them, or selected them from the villages.”

These children were recruited from the age of 14 years and above. He had told them that he was 14 years old. They told him that if he was 14 years old, he could be separated from his parents and work. He estimated that the children were 14 to 16, 17 or 18 years old. There was a special unit that was tasked to carry earth to the dam.

Mr. Ang inquired whether it was correct that the biography was only not collected in his unit. Mr. Sophal replied that this was not the case; they did not ask anyone about the biography. He could not know other people.

Mr. Ang then asked whether Mr. Sophal attended the meetings weekly or monthly with other people than Ta Val. Mr. Sophal replied that there were other people, but he did not know who they were. Mr. Ang asked whether he was ever called for a meeting from his unit. Mr. Sophal denied this. Generally, meetings would last half an hour during the break. Mr. Ang how often these meetings were held and what the content was. Mr. Sophal replied that it varied and was maybe once every two days. They had to reiterate their commitment.

 

Living Conditions

As for sleeping places, Mr. Sophal recounted that there was a shelter, but no blankets or mosquito nets. There was a very long communal hall where 200 or 300 people could sleep. They would go to bed around 8 am and get up around 3 am. They did not have enough energy to work the next morning. He would sleep on his hoe every day while people were carrying earth.

Mr. Ang then inquired whether he was assigned to only dig earth or also carry it. Mr. Sophal replied that they were rotated. One day they carried earth, the other day they dug earth.

The place where people were buried at the bottom of the bank was around 50 meters away. He witnessed the killing. The victim was male.

Mr. Ang asked whether Mr. Sophal looked for supplementary food, which Mr. Sophal denied. They could not find any. They only had access to the food that was given to them.

 

 

Clarifications

At this point, Judge Fenz was granted the floor. She asked whether it was correct that he could count. Mr. Sophan replied that he could only count simple numbers, “one, two, three, four, five.” Asked how far she could count, he replied that he could only count to maybe 20 or 30, but that he did not know many numbers. He confirmed that he could not calculate. Judge Fenz asked whether the numbers that he indicated of youths who were working there was based on calculation or whether this was his way to express that there were many young people there.  On different occasions he had mentioned different numbers, namely 1000, 2000 and 3000. He replied that there were many people and not only 10 or 20.

Judge Fenz asked how long he was at the worksite. Mr. Sophal replied that he did not know how many months or years it was, only that it was a long time. They only worked there during the dry seasons. His unit was mobilized for only one dry season.

Judge Fenz then referred to the killings that were meant to defer other workers. She asked how he knew that the killing happened every ten days if he only saw it twice. He replied that he saw the killing of one person and then after a while, he saw the killing of another person. This is why he estimated that they would kill these persons every five to ten days. He confirmed her follow up question that he derived his estimation from the two occasions that he saw the two people.

She turned to her last topic of collapses of workers at worksites. She asked what happened to the bodies of those who collapsed and where attempts to resuscitate them failed. Mr. Sophal replied that he did not know what happened to these bodies, they were always taken away from the worksite. The body was carried away by two people on a stretcher. Judge Fenz asked how he knew that this person was dead. Mr. Sophal answered that the person did not survive. He heard the person die. They could only have a short glimpse and could not watch the person for long. The workers on site tried to resuscitate the person. People would then come and pick up the body. It happened almost every day. One or two people collapsed every day. Sometimes, they did not die and could be resuscitated. He saw more than ten times that people collapsed and died. He could not shed light whether it were “many more” than ten people he saw collapse and die.  The floor was granted to Nuon Chea Defense Counsel Victor Koppe.

 

Collapses at the Dam site and Sleeping Facilities

Mr. Koppe continued with the same topic and asked whether the person who Mr. Sophal had given as an example of collapsing was from the same or a different unit. Mr. Sophal answered that this person was a member of the same big unit, but not of his smaller group. He did not know him personally. Mr. Koppe asked how he knew that the person collapsed from exhaustion if he did not know him personally and only had a glimpse at him. Mr. Sophal replied that it was his own conclusion. There was no medic to attend the person. There were no medics at the worksite. If they were sick, they could only ask for permission of their group chief. At the end of the day, maybe an hour or two before rest time, they were given some round pills. He never saw anyone being taken to the hospital.

Mr. Koppe asked whether many workers saw the collapses. Mr. Sophal confirmed this, but said that he did not know their names. Mr. Koppe asked how it could be explained that no other witnesses had seen this. Mr. Farr objected to this question and argued that it was unfair to explain other witnesses’ statements. The objection was sustained.

Mr. Koppe moved on and asked whether it was correct that the witness did not have any mosquito net while sleeping at night. Mr. Sophal confirmed this. He said
that there were no mosquito nets during the regime.

Next, Mr. Koppe referred to his Written Record of Interview.[5] In his statement he had testified that he had mosquito nets and blankets, but no pillows.

Mr. Ang interjected and stated that the Khmer version did not mention mosquito nets at the indicated page, but only mentioned long shelters and sleeping mats. Mr. Koppe corrected the page number he had indicated and repeated the question again.[6] The witness could not remember. Again, Mr. Ang interjected and stated that the statement at this page was not related to Trapeang Thma Dam but to another location. Mr. Koppe replied that this might be the case and rephrased his question.

He asked to explain why the witness had stated that he had mosquito nets in one location, whereas he had testified today that there were no mosquito nets during the Khmer Rouge regime. The witness was unable to answer the question.

 

Ta Val

Mr. Koppe then moved on and turned to Ta Val. In yesterday’s testimony, Mr. Sophal had said that Ta Val was there until the end of the regime. He asked how the witness knew this. Mr. Sophal replied that he was relocated to a pond that was called Ta Val. He never saw him in person. They heard that the instructions and assignments came from Ta Val. When the Vietnamese arrived, he fled the pond. Since every worksite was named after him, he assumed that Ta Val was there until the end. During one meeting, he was told that Ta Val would attend another big meeting for the inauguration of the pond. The pond was not completed when the regime fell. During the “big meeting”, there were so many attendees that he could not recognize Ta Val, although it was announced that Ta Val was present.

Mr. Koppe stated “everybody knows” started in February 1977 and that Ta Val was not working at Trapeang Thma anymore from June 1977 onwards and asked whether that helped to indicate at which time period the witness was working there.

Mr. Ang interjected and stated that “everybody knew about the starting date”, was not a proper assumption. References to documents should be made. Mr. Koppe replied that this objection apparently showed that indeed not everyone knew about the starting point of the construction work and that he was only trying to assist the witness. After conferring with the Bench, the President announced that the objection was upheld and stated that the statement that “everybody knows” was inappropriate, since different starting dates had been indicated. It was improper to imply that everybody knew when the construction started.

Mr. Koppe rephrased the question and asked whether the witness recalled when he started working at the dam. Mr. Sophal replied that he could not remember. Neither could he remember how long he was working there, since one month could already seem like 10 years.

The President adjourned the hearing for lunch break.

 

Killings and Death of Workers

After the break, the floor was given to the Nuon Chea Defense Team. Mr. Koppe turned back to the topic of the worker who collapsed and could not be resuscitated and inquired whether Mr. Sophal knew anyone who witnessed the event who was still alive today and could confirm the incident. Mr. Koppe then asked whether he knew any of the other workers that he allegedly saw collapse more than ten times. Mr. Sophal did not know their names. He did not dare to go closer. He only knew that he was a member of another unit. He asked what happened, and the workers told him that he had collapsed and had passed away.

Mr. Koppe then turned to the incident where he witnessed one man being killed. He inquired whether he knew the man. Mr. Sophal denied this. “He was killed in front of others. After they killed that person, they warned other workers that everyone had to continue to work hard, otherwise our fate would eventually be like the person who was just killed.” Mr. Sophal was around 100 to 200 meters away from the man who was being killed. All the workers who worked nearby witnessed the killing. Mr. Koppe asked whether this meant that hundreds of people saw what he saw.

Mr. Koppe then asked about the second killing. Mr. Sophal stated that the first and second killing was similar. All the workers witnessed the killing. They beat him to death and then warned the other workers that they would eventually be killed if they did not continue to work hard. He confirmed that they killed only one.

Mr. Koppe then read out an excerpt of Mr. Sophal’s Written Record of Interview, in which he had stated where he had said that he saw them killing hundreds of people and burying them at the bottom of the dam.[7] He asked whether it was correct that today he had stated that he saw people being killed only twice. Mr. Sophal clarified that he saw many people being killed at his parents’ place and not at Trapeang Thma worksite.

Mr. Koppe asked whether Mr. Sophal personally saw hundreds of people being killed at other places or whether they were not killed at all. Mr. Sophan stated that he saw many people being killed in other places. He never saw hundreds people being killed and buried at Trapeang Thma worksite. He only saw two people being killed and buried there.

 

Militiamen and Unit Chiefs

The militiamen who pointed the sword at the workers were not the people who killed the workers. They came in a group of three people: one woman and two young men. The woman was carrying a weapon and the two men sticks. They beat the person to death. He did not know whether they were from the village, commune or district. They did not mention where they received their orders from. He recalled: “They came, they brought that person, they killed, and then they left.” When he was working there, the dam was under the overall supervision of Ta Val, but he never saw Ta Val.

Mr. Koppe then inquired what Mr. Sophal was referring to when he had said that many people were carrying the earth to bury the bodies.

Mr. Koppe asked to clarify whether the carrying of the earth had nothing to do with the burying of the bodies. Mr. Sophal said that they had to continue carrying the earth and dumped the earth on the corpses. “It was our duty to carry the earth and build the dam.”

Mr. Koppe stated that Mr. Sophal had mentioned in Written Record of Interview a person called Roeun, who was his group leader, Saroeun, who was the company chairmen, and Run, who was the chief of the battalion. Mr. Sophal answered that Roeun was the unit chief.

He received the work plan from Roeun or Run who measured the land. He did not know who they received the instructions from. Run was his small cell chief who reduced the food rations, for instance. Mr. Koppe then asked why they needed the help of militia workers to “poke the workers”. Mr. Ang interjected and said that this question was improper. The objection was overruled.

The witness replied that the unit chief and small unit chief gave orders to work harder. Apparently, these chiefs imposed the instructions on the workers. Mr. Koppe then asked whether he ever saw Run, Saroun or Ran give orders to the militiamen, which Mr. Sophal denied.

Mr. Koppe then asked whether it was correct that, as he had stated in his Written Record of Interview, they were not allowed to rest during working hours. He also asked who gave this instruction. Mr. Sophal replied that the group chief gave the order not to rest. The militiamen only came to “poke the workers to work harder.” They were not present all the time, while the unit chief and small unit chief were present to monitor their work.

Mr. Koppe then read out an excerpt of Mr. Sophal’s Written Record of Interview, where he had said that they were sent to study in the beginning, but were not allowed to study later. Mr. Sophal confirmed this and said that there was no proper school. They studied under a tree for one day, and stopped for four or five days. Sometimes they only studied one day. The rest of the days, they had to cut tree leaves to make fertilizer. Mr. Koppe then proceeded to ask whether Mr. Sophal went to school before 1975, which Mr. Sophal denied. He was living with his parents in the forest to avoid the aerial bombardment, since it was wartime.

The floor was then granted to International Khieu Samphan Defense Counsel Anta Guissé. She turned back to the period during which he worked at Trapeang Thma Dam. She said that he had testified he could not remember how old was, but that his parents told him he was born in 1964. He stated that he could remember clearly that he was born in 1964. After the liberation, they had to register and his father told him to indicate the year 1964. Mr. Guissé said that this would mean that he was 11 years old in 1975, but that he had said that he was 14 years old when he started working there. “Even if my real name was 11 or 12 years old”, he had told them that he was 14 years old. He spent several months cutting trees, before his mother was asked by an “Angkar representative” how old he was. “Angkar listed down on a piece of paper how old I was”. Later, he was told to go. They did not ask about his age in his unit. They asked his mother. His mother told Angkar that he was 12 or 13 years old. He only heard about it and could not recall exactly whether he was 12 or 14 years old.

 

Supervision at the Dam

Ms. Guissé asked from when to when the dry season would last. He replied that he did not know when the dry season started. When it stopped raining, the children unit was asked to work on the rice fields. This was during the transplantation period of the year.

Ms. Guissé asked whether he remembered the closest village of the location where he was working. Mr. Sophal replied that there was a village called Trapeang Thma and another one called Snuol.

Ms. Guissé then inquired about the topic of supervision. She asked whether the militiamen were not permanently at the worksite, which was the reason that they could warn each other that the militiamen were arriving. Mr. Sophal confirmed this. They came every day, but did not walk to their area every hour. Ms. Guissé then asked whether it were always the same militiamen who would supervise them. Mr. Sophal replied that they were not the same, but that they were on rotation. The young militiamen were constantly there. The women rotated. However, they carried the same weapon. Thus, the militiamen who carried swords were always the same. The women changed. Sometimes he would see the same woman two or three days, after which a new face appeared. These children did not come from their native villages. Some of the children belonged to the New People group. The militiamen were from the same children unit and were promoted to be part of the militia group.

 

Hospitals

Ms. Guissé asked whether it was correct that there were no hospitals in the vicinity of the dam. Mr. Sophan confirmed this and said that he never saw one. The sick were treated on site. They would ask for medicine from the group chief. He was given the same pellets for having stomach problems as people who had other sicknesses.

Ms. Guissé referred to another witness’s testimony, who had stated that each unit had a health care worker, and if anyone was seriously ill, that person would be sent to the Trapeang Thma pagoda hospital.[8] She asked whether he ever heard about this hospital, which Mr. Sophan denied. He was only treated at the worksite. After taking the pill, he would rest for around five minutes, before going back to work. She then referred to yet another witness’s testimony, who had stated that he was sent to Pauy Char hospital.[9] Mr. Sophan insisted that he never saw any doctor or a hospital. His unit chief might have known the doctors, but he did not.

Ms. Guissé asked whether he was standing by his statement that he was only aware of what instructions he received, and not of what happened elsewhere. Ms. Guissé thanked for the clarification and gave the floor to her national counterpart Kong Sam Onn.

Mr. Sam Onn inquired about the division of the bigger group unit smaller units and asked whether the unit chiefs were also children. Mr. Somphan replied that they were also juveniles, but were older than the rest of the team. Those who were physically taller and stronger would be appointed unit chief. Mr. Sam Onn wanted to know whether he knew that there were any code numbers assigned. Mr. Somphan replied that he had forgotten them. The role of the unit chief was to inspect and observe all the workers’ performances. Mr. Sam Onn asked whether he knew where the group unit chief received the medicine from. Mr. Somphan replied that his group chief would ask the unit chief. He asked two or three times, and then he would receive the medicine.

Mr. Sam Onn turned to Ta Val as the supervisor of the worksite and asked how Mr. Somphan knew the name of Ta Val. Mr. Somphan replied that he heard this “from the word of mouth.” One day, he heard people say that the next day Ta Val would come to supervise the worksite.

Mr. Sam Onn inquired whether Mr. Somphan could recall the exact date that the pond was dug, which Mr. Somphan denied. He could only recall the location. It was located to the West of the Salar Krohom. It was located in Banteay Meanchey province. The location was not near the district office. The pond was to the South of the road, but he could not estimate the distance between the Banteay Meanchey town and the pond. The distance between Ta Val pond and the dam was far, but he did not know how far. The dam was located in Preah Net Preah District, while the pond was located in Serei Sasophon district. With this, Mr. Sam Onn finished his questioning.

The President thanked the witnessed, wished him good luck and dismissed him. He then adjourned the hearing for a break until 3 pm.

 

Oral Submissions

In the last session of today’s hearing, oral submissions would be heard on three issues that had been raised in e-mails of September 25, 28 and 30.

First, the request by the Defense Team for Nuon Chea to hear one additional witness in relation to Trapeang Thma Dam pursuant to rule 87(4).[10] Second, the letter by the Co-Investigating judges related to the summoning of expert witness 2-TCE-95.[11] Third, the disclosure of 11 documents.[12]

Mr. Koppe stated that he had not much to add to his request. It had been argued in his submission already why this witness would be important. They had confronted other witnesses with his testimony. The floor was then given to the Co-Prosecutors. Mr. Farr stated that the prosecution was not opposed to the fact to call the witness, since the Written Record of Interview and his DC-Cam Statement were already before the Chamber. He said that it would be reasonable to call the witness. He pointed out that the Prosecution disagreed with the characterization of the witness’s evidence regarding the living conditions as exculpatory. National Civil Party Lead Co-Lawyer stated that they did not have any objection either. Neither did the Khieu Samphan defense team have any remarks.

As regards the second point, the floor was given to the Co-Prosecutors. International Co-Prosecutor Nicholas Koumjian stated that the request to have a legal officer present during the hearing was reasonable. However, he did not anticipate any problems with respect to the issue confidentiality. The Co-Prosecution would not ask questions about what related to his work at the Office of the Co-Investigating judges; the expert had written books and provided extensive other evidence that could be examined.

The International Civil Party Lead Co-Lawyer Marie Guiraud stated that they did not have specific remarks for this matter. Nuon Chea Defense Counsel Victor Koppe noticed that he was not convinced that it was “quite as simple as the Prosecution is describing.” It would be up to Ysa Osman to decide whether he was violating any procedural rules or issues of confidentiality. Mr. Osman should therefore decide whether answering questions would “bring him into problems.” He gave the example of events at Wat O Trakuon. This pagoda was part of the investigations of Case 004. If Mr. Koppe asked him about the command structure at Wat O Trakuon in general, Mr. Osman might inflict procedural rules when answering questions, since this was a topic under investigations under case 004. Broad formulations might “end up in him not giving any answers”, for example with issues that relate to Sector 41 or Wat O Trakuon more specifically. As regards someone sitting next to the witness, Mr. Koppe stated that there was comparable case law in the ICTY Milosevic case: two government officials had been present in the court room. The Appeals Chamber ruled that although there was no provision at the time, the trial chamber had been allowed to have these government officials present in the courtroom. However, these officials were not allowed to coach.

Mr. Koppe said that if he was to be assisted in the court room, this should be done by a lawyer who was admitted to the courts of Cambodia. From the letter by the International Co-Investigating Judge, it seemed like Ms. Ewing was entitled to assist the expert. However, only lawyers were entitled to provide advice in a courtroom. Thus, only lawyers who were admitted to the Cambodian bar should be entitled to advise the expert.

Ms. Guissé took the floor and stated that there were two issues. She said that they understood the confidentiality of the issues. At the same time, if the person was called as an expert, this would be because the Chamber believed that he knew relevant facts. As regards the witnesses who had testified here before, there was no problem, since all these statements were on the case file. However, with regards to assistance by a legal officer of the OCIJ, she stated that if he was an expert, he should be able to determine what to say and what not. He should therefore independently answer the questions while respecting his obligations of confidentiality. She did not believe that he needed to be assisted.

Judge Fenz said that it was not clear to her whether some information would not be provided at all, or might be provided in a closed session. This should be clarified.

Mr. Koumjian took the floor and stated that the legal officer would not represent the witness, but would represent the office to make sure that confidential information of that case is not disclosed. Mr. Koppe replied that the International Investigating Judges had no status in the court room. If the person sitting next to him was not the witness’s lawyer, this would result in a very unusual situation. Ms. Guissé clarified that the same standards for disclosures should be used to put questions to the expert.

Mr. Sam Onn drew the attention to the publicity of the court. If there was any dispute of confidentiality, this might affect the interest of his client and hinder the proper defense.

Ms. Guiraud argued that for this issue Rule 56 of the Internal Rules was relevant, which laid down that investigations are confidential and that persons involved in this needed to respect confidentiality. It was in the personal responsibility of the witness himself to respect this. She saw two possibilities: first, to have the witness assisted by lawyer; second, to have the Office of the Co-Investigating Judges represented.

Mr. Koumjian took the floor and said that there had been precedent cases. In other tribunals, there were rules regarding national interests. In one case, the representative had represented the state with respect to what information could be disclosed, and not represented the interests of the person himself. It would be unfair to ask the witness, a non-lawyer, would be unfair to him and the office of the Co-Investigating Judges – especially because the Defense Counsels had stated that they might ask about information that touched upon issues of confidentiality.

Judge Jean-Marc Lavergne reacted to what the Civil Party Lead Co-Lawyer had said. He stated that a lawyer was not part of the proceedings and could therefore not advice them on issues of confidentiality. Ms. Guiraud answered that it seemed like this was indeed not a good solution. However, the obligation to keep confidential was of a personal nature.

Mr. Koppe stood up and remarked that both Lavergne and the Civil Party lawyers had used the term Office of the Co-Investigating Judges. In fact, not the Co-Investigating Judges had made the request, but only the international side. He then referred to a decision last Friday. In the third paragraph, the national judges had argued that it was regarded as humiliating by the Cambodian society if Meas Muth was ordered to appear only in front of the International Co-Investigating Judges, and not in front of both national and international counterparts.

President interrupted Mr. Koppe and asked what the ground for Mr. Koppe’s intervention was.

Mr. Koppe replied that a distinction seemed to be made by the pre-trial judges for decisions that came from only from the International Investigating Judges, and not the Office of the Co-Investigating Judges as a whole. He wanted to hear the position of the national Investigating Judges in relation to this request.

The national Prosecutor stated that he did not have any comments.

The President asked whether Mr. Koppe meant that the request was not valid and should not be subject to discussion. Mr. Koppe replied that as for the additional witnesses that had been requested by the International Co-Prosecutor was void because of the lack of the national prosecutor’s signature. Mr. Koppe stated that for this situation here, he was not entirely sure yet, since the decision was ambiguous. However, he stated that there was a legal problem if only the international part requested this, while the national counterpart remained silent.

 

Mr. Koumjian stated that the national Co-Investigating Judges had consistently stressed the confidentiality of the investigations.

 

Next, the Chamber asked the International Prosecutor whether he wished to put more documents in addition to documents such as E3/33, and if so, which ones he would be likely to submit in relation to the treatment of targeted group, in particular the Cham.

Mr. Koumjian replied that they had reviewed all documents, and all that related to the Cham segment had been disclosed. 27 Written Record of Interview were only in Khmer, and were at the moment being reviewed. Three requests were still pending before the OCIJ. These were disclosures of some Civil Party Application. Four hundred Civil Party Applications had not yet been reviewed. The Office of the Co-Prosecutors would review them under the criteria of exculpatory evidence and disclose them, unless if they were instructed not to review them.

 

Judge Fenz asked for clarification when they would be disclosed if that was the case. Mr. Koumjian stated that he could not answer this question.

 

Mr. Koppe remarked that the documents that were disclosed yesterday included one witness that seemed to be one of the most important investigations. This would mean that it was subject to ongoing investigations, which would mean that there would be new documents coming in.

Ms. Guissé stated that “we are waiting impatiently for your response” to the motion they had filed. She noted that they were given time limits. The deadline extensions were asked for in light of the disclosures that keep coming in.

 

The President then gave the floor to the Khieu Samphan team to present their request they had made. Ms. Guissé stated that the first request they had “was very logical”. In the program they originally scheduled, the expert was supposed to testify at the end of the segment. The expert should testify after all additional witnesses had been heard. Second, she noted that there were certain numbers of documents that they would like to submit to the expert. The two days that had been originally scheduled for the expert would be too short to review within reasonable time the different statements. Thus, she requested extra time: one extra session for each party.

The second request was in reaction to the issue raised by Judge Fenz, who had asked how much time the Khieu Samphan’s team would need to prepare the appeal hearing. She suspected, based on unofficial correspondence, that this might take place mid- or end of November, or beginning of December. This would require them to have five weeks without any hearings to prepare the appeal hearings. It should be taken into consideration that new witnesses might be called for the appeal hearing.

The President inquired how much time she requested to hear the expert. Ms. Guissé stated that she requested to have at least three sessions instead of three.

 

Mr. Koppe stated that it was unclear between 10 and 20 November or the first week of December. He said that the five weeks as requested by the Ms. Guissé were not unreasonable.

Mr. Koumjian stated that they would agree with the Nuon Chea Defense Team that it was premature to request for a time for preparation. As for the time allocated for the expert witness, he stated that two days seemed to be more than sufficient. However, he agreed that the expert should be scheduled at the end of this segment.

 

The President announced that the Chamber would deliberate on these issues and provide a decision soon. The hearing resumes next Monday, October 5 at 9 am. Monday, the testimony of 2-TCW-950 will be heard, with 2-TCW-904 being on the reserve.

 

 

[1] Document E368.

[2] Document E367/1.

[3] E3/7755, at 00279115 (KH), 00293004 (EN), 00338221 (FR).

[4] E3/201, at 00292810-11 (KH), 00419546 (FR) 00612170 (EN).

[5] E3/7755, at 00279113 (KH), 00293003 (EN), 00338220 (FR).

[6] In Khmer: 00279114 (KH).

[7] E3/7755, at 00293004 (EN), 00279115 (KH), 00338221 (FR).

[8] Transcript, 17 August 2015, before 14h23.

[9] Transcript, 20 August 2015, at 11:17.

[10] Document E368.

[11] Document E367/1.

[12] Document E319/33.