Key Documents Hearings – Responses
Today, February 26 2016, was the third day of the key documents hearings relating to the treatment of Cham, Vietnamese and former Lon Nol officials and soldiers. The Co-Prosecution and Khieu Samphan Defense Team gave their reply to the documents the other parties had presented on Tuesday and Wednesday.
Co-Prosecution: Treatment of the Vietnamese
The President Nil Nonn announced that Judge You Ottara was absent for personal reasons. The Trial Chamber Greffier announced that National Khieu Samphan Defense Counsel Kong Sam Onn and International Civil Party Lead Co-Lawyer Marie Guiraud were absent. Nuon Chea followed the proceedings from the holding cell as usual. The floor was then granted to the Co-Prosecutors. Deputy Co-Prosecutor William Smith said that the Defense Team had presented 13 documents from the case file. He said they fell into two categories:
- opinions of distinguished researchers
- documents that put allegations of treatment of Vietnamese into context
As for the contextual documents, he said that although they were important and necessary to interpret the core elements of the indictment, the documents did not directly challenge the core allegations against the treatment of the Vietnamese. As for the researchers, he explained that neither Stephen Heder, nor Philip Short, nor Henri Locard had had access to all the contemporaneous documents that the court had access to now (their research was conducted in 1996, 2005 and 1998),
Mr. Smith said that allegation of whether genocide occurred was the ultimate issue that needed to be decided upon by the Judges. In relation to all the academics, he said that this was something they could take into account, but did not have the probative value they would have if they had access to the Case File.
Another group of documents referred to August 1978 until December 1978. Mr. Smith argued that if just looking at the selection of those documents and the time period and when looking at the allegations that the intent was formed in April 1977 by the leadership to destroy the Vietnamese population, the selection of documents by the Defense Team was not showing that this intent did not exist. The Defense Team had referred to Standing Committee meetings of 14 May 1976 and Counsel of Minister meetings of 31 May 1976, which was before the time period that the indictment alleged that the intent was formed.[1] He said that the intent did not culminate until April 1977, which was one year after what the Defense Team had submitted was showing that the intent did not exist.
He said that the probative value of meeting minutes that took place one year before the allegations said the intent had formed was rather low. Moreover, even when looking behind the meeting minutes, and even when attempting to negotiate a peaceful solution, they still referred to as “the contemptible ones”.[2] Mr. Smith submitted that the people who were seen as the contemptible were in fact killed. He argued that the documents the Defense Team had cited were not helpful to determine whether this intent existed in April 1977.
He pointed to document E3/4589, which was a report by Francois Ponchaud of January 10 1976. Mr. Smith submitted that this report “by-and-large” supported the indictment’s allegations that large numbers of Vietnamese were expelled from Cambodia in 1975.
Mr. Smith then pointed to three newspaper repots and one other document of February 1977.[3] The newspaper reports were from the Washington Post of August 10 1978, the Bangkok Post of October 24 1978 and another newspaper of December 3 1978, which indicated that large numbers of Vietnamese were built-up at the border and that a United Front was to be created, including defectors from Cambodia.[4]
Mr. Smith said that the Prosecution and the indictment accepted that as the armed conflict escalated toward January 1979, when the Vietnamese ultimately took over Phnom Penh. However, this did not challenge or address the issue of what happened to Vietnamese civilians in the country. He said that the documents did not address the central issue about the crimes that allegedly occurred. They were contextual documents, but their probative value was “quite limited”. He said that they were relevant, but not very helpful to see whether the alleged crimes actually occurred. Mr. Smith then turned to E3/744, which was a Revolutionary Flag of February 1978, based on which the Defense Team had argued that they made a distinction between the Vietnamese State, the Vietnamese resistance groups and Vietnamese in general. Mr. Smith said that although they do make a distinction between civilians and the state, he said that this distinction was made for Vietnamese people in Cambodia.[5] The probative value was very low, thus, since they were referring to the Vietnamese civilians in Vietnam. Mr. Smith said that documents had “very very limited value” in challenging the allegations.
At this point, Mr. Lysak handed the floor to his colleague Senior Assistant Prosecutor Dale Lysak.
Co-Prosecution: Treatment of the Cham
Mr. Lysak said that the documents presented by the Defense Team regarding the Cham were based on opinions by authors Philip Short and Henri Locard. He said that these authors had not conducted “extensive, detailed, thorough research” about the experience of the Cham people under the Khmer Rouge. Neither of these two were lawyers who understood the legal definition of genocide. It was for the Chamber to decide whether genocide had been proven. None of the authors, he said, had conducted extensive research. Furthermore, none of these authors heard the evidence that the Judges had heard.
Moreover, the article written by Henri Locard that the Defense Team had pointed to yesterday was actually a letter written to the Cambodia Daily criticizing the crime sites that had been selected for Case 002/02, which was not a research piece.[6] The research he had done about the Cham was, according to Mr. Lysak, minimal in comparison to Ysa Osman and Ben Kiernan. What mattered were not their opinions, but the factual elements they set out. As for the book by Philip Short that had been cited, he had conducted no interviews with Cham, and in fact they were only mentioned a few times in the book.[7] It included only very general discussions about their suppression and rebellions. There was no discussion of the organized mass killings of Cham communities that occurred in Kang Meas, Kampong Siem and Krouch Chhmar districts in 1977 and 1978. Thus, Mr. Lysak submitted that Philip Short had been unaware of this issue. Short and Locard had not heard the witnesses about massacres. He said that these people were not here when witnesses and civil parties described how Cham people were arrested and killed and testified that they had heard of orders of the upper echelon to identify and kill Cham people.
He said that they were also not there when Meas Boeun, a deputy commander of the West Zone military, in which he had said on February 3 of this year that they were instructed to smash the Vietnamese, because they did not return to their country.
Mr. Lysak referred to Henri Locard’s letter, in which he had said that the Khmer Rouge were not specifically racist, but that the Vietnamese were killed because they refused to eat pork or give up on prayers.[8] He clarified that genocide does not require that the perpetrators were racist or racially motivated – if acting for political reasons, military reasons, or “because you don’t like the color of their clothes”, it was genocide if one had the intent to destroy one group.
Another document was a 14 October 1975 Democratic Kampuchea Government Radio Broadcast, which was – Mr. Lysak submitted – interesting in its timing, since it took place shortly after the Koh Phal Rebellion.[9] He said that it was a piece of propaganda.
Co-Prosecution: Treatment of former Lon Nol Officials
As for the targeting of Lon Nol officials, he said that the Khieu Samphan Defense Team had presented news articles that indicated that there was some resistance in the country in 1976 that may have been led by some former Lon Nol military, possibly operating out of Thailand. He answered that this was no justification to “round up and kill” Lon Nol soldiers and officials and family members.
Mr. Lysak then referred to an S-21 record showing over 160 Lon Nol related people who were killed at s-21 in March 1976. This list included at least 12 relatives of Long Barey, who were not officials themselves. The last entries were four children.[10] The approach taken by the defense was “shameful” and was “not a legal defense” of the extrajudicial killing of “so many Cambodians”. Thus, he argued that the documents had little probative values.
The floor was then granted to the Civil Party Lead Co-Lawyers. Pich Ang said that they had no further responses, since the Co-Prosecutors had argued soundly.
Khieu Samphan Defense Team: Treatment of the Vietnamese and Cham
Khieu Samphan Defense Counsel Anta Guissé first made “a few general remarks” She said that their purpose was not to justify crimes. When presenting contextual documents, they wanted to give the Chamber information to be able to determine what happened on a political level. Some facts were not disputed, such as killings that occurred, but it had yet to be determined whether there was a policy to do so and whether a link to Khieu Samphan had been made. She pointed out that there was no cross-examination and that the Defense Team had not had the possibility of challenging a few testimonies.
As regards the statement by Civil Party Lead Co-Lawyers that they had “thoroughly crosschecked” the information provided by the Civil Party lawyers were sometimes inaccurate. She highlighted that she did not doubt their good faith, but that the Defense Team did not have the opportunity to challenge the documents.
She then recalled Khieu Samphan’s position that he had not been part of the investigations and was unable to respond to certain issues if the persons were not able to testify. This, she said, violated the right to confront evidence presented against him.
As for the treatment of the Vietnamese, she said that the Co-Prosecutors said that there had been a commitment to attack combatants and non-combatants. When looking at the sources, however, this was not indicated in the documents directly. Instead, this was the Co-Prosecutors’ interpretation.
She pointed out that the border conflicts and the conflict with Vietnam had to be understood to be able to understand what happened on the political level in Democratic Kampuchea.[11] She furthermore pointed out that a number of documents that the Co-Prosecutors had cited actually referred to armed combatants, Vietnamese spies, fighters, and not the Vietnamese civilian population.[12] This also applied to a speech given by Khieu Samphan.[13] If this distinction was ignored, she said, this distorted the evidence. Ms. Guissé then referred to the book by Khieu Samphan in which he spoke about incursions of the Cambodian army into Vietnam.[14]
She said that the Co-Prosecutors had said that this proved that the CPK intended to attack the Vietnamese population. Ms. Guissé argued that he was “just raising questions”, and that he understood this as military issues and responses to Vietnamese attacks.
To corroborate this theory presented by the Co-Prosecutors, they pointed to E3/7738. She said that a contextual element was given and cited an excerpt. She said that this proved that there was infiltration occurring from Vietnamese communists into Cambodia. Ms. Guissé further said that the Vietnamese were not persecuted because of their ethnicity, but because they complaining and not following orders of the Khmer Rouge. She argued that the documents showed that the issue of the Vietnamese origin was secondary, and the real issue was the attitude of insubordination.[15]
At this point, the President adjourned the hearing for a break.
At the beginning of the second session, the floor was given back to Ms. Guissé. She referred to another document presented by the Co-Prosecution, namely E3/741. It was an instruction by Office 870. The interpretation by the Co-Prosecutors was “very personal”. These instructions were only referring to the military enemy. Ms. Guissé argued that the interpretation by the Co-Prosecutors of S-21 lists and notebooks, military telegrams and Revolutionary Flag Articles had been very subjective.[16] She said that a report by Nhim that described the situation at the Thai border showed that Vietnamese were not targeted because of their ethnicity.[17] Ms. Guissé submitted said that the “biased analysis of the Prosecution” had been shown in their key document presentation.[18]
As for their criticism of Henri Locard and Philip Short and that they had allegedly not conducted in-depth studies, she said that she was “surprised” about this allegation. She said that Henri Locard had actually carried out investigations in Kampong Cham between 1993 and 2005 and was not foreign to the region.[19]
She then moved to criticize the cited work by Elizabeth Do, and pointed out that the conclusion was the interpretation of a sociologist student. To use this as evidence that a nation-wide policy had taken place was not appropriate, Ms. Guissé said, also because only 48 persons were interviewed in a limited geographic range.[20] She concluded this segment by saying that “it is one thing to have a thesis and try to corroborate it” and to look at the evidence critically.
As for the issue of the treatment of the Cham, she said that some of the witnesses could not be called for cross-examination and quoted a 2012-ruling by the Chamber.[21] Moreover, both Locard and Heder worked for tribunal at some point. They had carried out in-depth research.
She said that Ben Kiernan mentioned Mat Ly, in which it is said that the order to kill the Cham came from Pol Pot.[22] However, when looking at his DC-Cam statement, he had said that Pol Pot did not hate the Cham and said that the Cham had to be buried like everybody else.[23]
She referred to Kiernan’s discussion of Heng Samrin. Kiernan had referred to Pol Pot, while Heng Samrin had actually mentioned the Supreme Angkar.[24]
Next, she turned to the master thesis of Farina So, which compiled opinions and documents linked to Cham.[25] Ms. Guissé argued that this author had heavily relied on DC-Cam interviews, Ysa Osman’s work and excerpts of other authors. She submitted that it was difficult to rely on the work of this student to proof it was research done by experienced researchers.
Khieu Samphan Defense Counsel: Treatment of former Lon Nol Officials
Turning to the next topic of executions of former Lon Nol officials, Ms. Guissé said that it was important to understand that the Defense Team believed that relying on documents outside the scope was not reasonable.[26] Moreover, she said that the Co-Prosecution had relied on an interview of Ieng Sary, who had talked about the execution of two high-ranking former Lon Nol soldiers.[27] She submitted that this did not proof a national policy. She also said that the interview conducted by Stephen Heder with Ieng Sary did not proof this policy.[28] As for the witness of E3/4627, he had confirmed at a later part in the interview that he attended no district meetings and could not say who said what and who gave orders. With this, Ms. Guissé finished her presentation.
The Court adjourned at 11:30 am and will resume on Monday, February 29 2016, at 9 am with the Statement of Harm and Suffering of Civil Parties in relation to facts concerning the Cham, Vietnamese, and former Khmer Republic. After the session, two co-investigators were sworn in.
[1] E3/221 and E3/74.
[2] E3/793.
[3] E3/744
[4] E3/7265, E3/7315, and E3/7310.
[5] At 00464063 (EN), 0000786 (KH), 00538944 (FR).
[6] E3/7283,
[7] E3/9, at page 230, 254, 326 and 354.
[8] E3/7283.
[9] E3/2070.
[10] E3/1539.
[11] E3/7842; E3/759; E3/805, 16 December 1975, at 00185237 (EN), 0052333 (missing number in translation, KH), 00315067 (FR); E3/712.
[12] E3/2435, E3/240, at 00282550 (FR), 00897667-68 (EN), 00282550 (KH); E3/248; E3/852.
[13] E3/200, at 00612166 (FR), 0004165 (EN), 00292804-05 (KH).
[14] E3/18, at 00595447 (FR), 00103850 (KH), 00103760 (EN).
[15] E3/4112, E3/2447, E3/2050, E3/2435 and E3/4127.
[16] E3/1249; E3/432; E3/9357; E3/726; E3/833, at 00184607 (EN), 00077894 (KH); E3/28 at 00611668 (FR), 000183357 (KH), 00017026 (EN); E3/4604; E3/282.1.
[17] E3/863 at 00623409 (FR), 00321962 (EN).
[18] E3/8404, S00017543 (FR), 00419728 (EN), 007167183 (KH).
[19] E3/2649.
[20] E3/4524, Elizabeth Do, at 00751022 (FR), 00768967 (EN), 00548861 (KH).
[21] E1.296.
[22] E3/1593.
[23] E3/7821, at 00441579 (EN), 00229131 (KH).
[24] E3/1593, 001150140 (EN), 00637773 (KH).
[25] E3/4519.
[26] E3/1539; E3/3973; E319/3.125; E3/9598; E3/2120; E3/5627; E3/832
[27] E3/605, at 00599741-42; E319/23.3.42; E3/3393; E3/3394.
[28] E3/89, at 00332690 (FR), 00417608 (EN), 00062464; E3/832.