Responses to Key Documents Presentations
Today, August 16, 2016, was a short day in front of the Trial Chamber. The Khieu Samphan Defense Team responded to the key documents presentations by the Co-Prosecution and Civil Party Lead Co-Lawyers, after which a discussion was held with regards to the calling of experts.
All parties were present, with Nuon Chea attending the hearing from the holding cell. Trial Chamber President Nil Nonn was still absent and replaced by Judge Ya Sokhan. The floor was granted to the Khieu Samphan Defense Team to respond to the key document presentation by the Co-Prosecutors and Civil Party Lawyers. Khieu Samphan Defense Counsel Anta Guissé raised various points with regards to the key documents that had been presented by the Co-Prosecution and Civil Party representatives. As a general remark, in light of the statements read out by the Civil Party Lead Co-Lawyers, she said that “simple written statements” had little probative value. She then turned to Au Kanseng Security Center and the documents relating to the arrest of the Jarai.[1] She pointed to another portion of Chaom Se’s statement, in which he had talked about the possibility of releases of the prisoners from the security center and that Sao Saroeun was the one who had the authority to make decisions about freeing prisoner.[2] As for Phnom Kraol, she said that the Deputy Co-Prosecutor had used the book Purges in the Mondulkiri Highlands as one of their key documents. Ms. Guissé argued that there was not much information available on how the authors conducted research, and that it was clear that they also used confessions.[3] She then highlighted an interview, in which a person had said that three cadres who held positions of authority in Mondulkiri were all Lao.[4] Ms. Guissé also said that a person had distinguished different categories of prisoners at Phnom Kraol. This was important, since he was a former policeman and he had mentioned the hierarchy at the prison.[5]
As for the telegrams that the Prosecution had relied upon that they had claimed demonstrated the rule of the Center in Sector 105, Ms. Guissé submitted that this did not necessarily fulfill individual criminal responsibility as legally required, since Khieu Samphan was not mentioned or copied to in many of these telegrams.[6]
Ms. Guissé then turned to the relationship with Vietnam and argued that negotiations with Vietnam were ongoing during border conflicts because of the conflict, and not despite of. She particularly highlighted a document that indicated that it was particularly important for Democratic Kampuchea that Vietnam withdrew from three villages, and that “friendship has to be built on the principle of mutual respect”.[7]
She then said that the video that had been referred to by the Co-Prosecution six times already was shot prior to Khieu Samphan’s arrest and before he was aware of the investigations S-21.[8] Another book they had referred to submitted that Khieu Samphan had no responsibility for some purges and was not aware of them.[9] As for the book by Steven Heder, Ms. Guissé pointed out that it was dated in 1991 and that it seemed to use confessions as evidence.[10] She reminded the Chamber that Steven Heder spoke with Khieu Samphan following a press conference[11]. She also highlighted the importance of the person Ty Samon.[12] Moreover, she wanted to put the relationship between Duch, Nuon Chea and Khieu Samphan into context (as mentioned in Behind the Killing Fields by Teth Sambath). She said that Nuon Chea had indicated that Ieng Sary and Khieu Samphan were not informed of the purges, which showed that some information was not shared despite having meals together.[13]
At this point, presiding judge Ya Sokhan adjourned the hearing for a break. After the break, the President invited submissions regarding the calling of experts. On August 15, they had informed the parties that they had removed expert 2-TCE-83 from the list, since he was unavailable. This morning, the Nuon Chea Defense Team had requested in an e-mail to replace the expert. The floor was granted to the Nuon Chea Defense Team to elaborate on their position.
Nuon Chea Defense Counsel Victor Koppe explained that the segment on the nature of the armed conflict was the most important segment for the Nuon Chea Defense Team. Hence, 2-TCE-83 played a crucial role for them. He suggested to find alternatives to accommodate the expert, and suggested hearing him through video-link. If this was not possible, he suggested to find an alternative expert, for example Steven Heder. Judge Claudia Fenz interjected and asked what the additional expertise of Heder would be. Mr. Koppe explained that the broader picture had to be viewed: it was important to consider Vietnam’s ambitions as to Democratic Kampuchea and Laos, and the connection between purges, conflicts and other issues. Hence, it was crucial to fully understand the nature of the international armed conflict. The experts that had testified so far were heard on behalf of the Prosecution and none on behalf of the defense. Steven Heder had interviewed a significant number of relevant people and had written about issues in the East Zone. Additionally, Steven Morris (author of Why Did Vietnam Invade Cambodia) could be called as an expert, since he had been able to use Soviet Archives and had therefore an additional perspective on the conflict. Lastly, Mr. Koppe mentioned Philip Short as a potential expert witness.
Ms. Guissé stated that calling 2-TCE-83 did not necessarily mean that he would submit pro-defense arguments, but since he had worked with archives of Democratic Kampuchea and lived in Cambodia during this key period and heard a significant number of persons who lived in Cambodia during Democratic Kampuchea, he could provide important insights.[14] Hence, the Chamber and parties could question this person in a broader context, since his expertise was not only confined to one small area.
Co-Prosecutor Nicholas Koumjian submitted that the idea of hearing the expert via video-link was reasonable. He argued that he did not question the expertise of these experts and that the Chamber should therefore attempt to accommodate the defense’s request. International Civil Party Lead Co-Lawyer Marie Guiraud also agreed that it was reasonable to hear the expert via video-link and relied on the wisdom of the Chamber for the calling of the other experts.
With this last submission, the hearing came to an end already at 10.30 am. It will continue tomorrow, August 17, 2015, at 9 am with Civil Party 2-TCCP-1040 in relation to internal purges.
[1] E3/240, at 00282550 (FR), 00897667 (EN), 00001266 (KH).
[2] E3/405, answers 9 and 11; E3/60.
[3] E3/1664, at 00397615, footnote 122.
[4] E3/7703, at 00426116 (FR), 00242171 (EN), 00236746 (KH).
[5] E3/7702, at 00274825 (FR), 00236727 (KH), 00239509 (EN).
[6] E3/1192, E3/1194; E3/1118; E3/1199; E3/877; E3/1204; E3/9288; E3/1020
[7] E3/217, 11 March 1976; E3/218, at 00182653-54 (EN), 00000753-54 (KH); 00334970 (FR), 00000755 (KH), 00182656 (EN).
[8] E404/2.1 and E404/4.
[9] E109/2/3R. At 00595513 (FR), 00103891 (KH), 00103794 (EN).
[10] E3/3169, 090 (FR), 00711393 (KH), 0002760 (EN).
[11] E3/4035 and E3/4032; E1/226.1, at 10:21; E3/4032.
[12] E3/4032, at 02:26; At 06:18; E3/4035.
[13] E3/4202, at 00757520 (EN), 00858306 (KH); and 00757527 (EN), 00849427 (FR), 00858328 (KH).
[14] E3/22.