Court Has Duty to Establish Historical Record, Defense Counsel Argues

Today was a short day at the chamber. It first heard the conclusion of the testimony of witnesss Phan Him and then submissions regarding the calling of an expert. 

 

Witness Phan Him

Khieu Samphan Defense Counsel Kong Sam Onn was absent due to personal reasons, all other parties were present. Judge Jean-Marc Lavergne had additional questions. She confirmed that she was in charge of teaching children at the Ministry of Commerce. They were between three and twelve years old. Initially, she taught them vowels and the alphabet. Then, she taught them how to read and mathematics. Judge Lavergne asked whether there was a political aspect in her teaching as well, which she denied. “I was instructed to teach only Khmer literature”. Judge Lavergne asked whether she was not asked to teach them the values of the family and what loyalty meant. She replied that she had to teach them to be on time. They were told to respect Angkar. “They were instructed to be punctual and to listen to the teachers”. Children’s parents did not come with them. Children were taught to respect Angkar and Angkar was their parents. She never taught them songs. They were taught that they had to be vigilant with regards to enemies. Someone threw grenades into the Ministry of Commerce, which was why she was asked to teach them to be vigilant toward enemies. She did not hear anything about the yuon.

She saw some foreigners in a vehicle, but did not see any when she was working at the ministry of commerce. She did not know whether there were embassies near her pagoda. She had not heard of the Embassy of China. She had heard of S-21, but did not know where it was.

 

The floor was granted to the Nuon Chea Defense Team. Doreen Chen asked about war spoils and wanted to know what kind of war spoils they collected. She replied that she collected them at Psar Thmei. They collected cutting boards and other things that belonged to vendors. It took her one month to clean everything.

She knew the soldiers taking things away from her were stationed at a bridge, because they laid an ambush for them and they ran away. They stole rice and some meals. After they ate, they left some leftovers. The soldiers unlocked the kitchen and took away the leftovers. The soldiers then came to steal kettles and sandals. She was then moved to work elsewhere. She did not hear of similar incidences elsewhere. She did not know which division they belonged to.

As for study sessions, she said that “everyone” from mobile units attended this session. There were around 20 people from abroad and around 80 people from her unit.

Ms. Chen then wanted to know how she was able to identify her husband as the person who fixed the broken fan if she did not know him in advance and there were many people in the study sessions. She replied that there was an electricity cut and Comrade Rat was called to fixed it. This was the person she was asked to marry. He was in the Ministry of Finance. One night, the chief of the female unit came to her ministry and she was called and asked to marry. She replied that she was not mature yet. She had to marry him and received some clothes the next day. “I was given some toothpaste, [soap], and some detergent”. Ms. Chen inquired whether her husband had ever spoken to her about why he made the proposal to marry her. She replied that he had not known her beforehand. He had explained that he was told by Ty that he had to marry. Comrade Im, in charge of international commerce, told her that the day of Ms. Him would be the next morning. She told her that she did not need to work, because it was the day of her marriage. On the day of the marriage, there were no relatives who attended the ceremony. It was attended by the leadership of the place. The parents were not aware of the marriage of their children. No relatives of the 21 couples attended the ceremony. They received no news about the marriage.

Since 1974, when she was still at the cooperative, the district committee brought her to a study session at the district committee. She saw handicapped people being transported from Srey Chor district. The next day he talked about the marriage. Some of the handicapped people said that they did not want to get married to the women, because the women were too young, and if they got married, they would not have a good future. The soldiers were all “old”. She refused to get married too. In 1975, female chiefs were in charge of supervising their group (when based at Psar Thmei) and this chief told her that a marriage had been made to marry. “She told me a few things. She scolded me that I did not follow the line of Angkar and that I did not respect Angkar. But I kept silent, I did not dare to respond.” Nothing happened until 1978.

 

Ms. Chen then inquired whether she was referring to the other 20 couples when she said that “all the other couples” knew around one month before their wedding that they would get married. She answered that their respective chiefs told them a month before. Asked whether anyone could marry who they wanted, she said that no one could choose. “It happened only when the men proposed to us”. At this point, Ms. Chen concluded her examination.

 

Khieu Samphan Defense Counsel Anta Guissé sought clarification about the incident of someone throwing in a grenade. Ms. Him said that it was not at the Ministry of Commerce, but rather at the cooperative. She heard about planes that “came to bomb near our place”. She was close to where a bomb dropped. “That’s why the chief of the area told us to be vigilant with enemies or spies”. This took place in 1974. Ms. Guissé had no further questions and the witness was dismissed.

 

 

Submissions: Calling Expert 2-TCE-93

Next, oral submissions regarding the summonsing of 2-TCE-93 would be heard. The President asked whether the Co-Prosecutors and Nuon Chea Defense Team maintained their position to hear her testimony and how her testimony would be suitable to determine facts.

 

Mr. Lysak said that the Co-Prosecutors now held that it was not necessary to call this expert, since she had requested to be able to do additional analysis, which would take months. Hearing life testimony from this expert may not bring much more than what had been written in reports already.

 

Nuon Chea Defense Counsel Victor Koppe said that they did not accept various parameters set through some reports. Other reports were more reliable, he said. The Khieu Samphan Defense Team, Ieng Sary Defense Team and Nuon Chea Defense Team had heavily criticized her report. There were methodological flaws, and they alleged that she was biased, since she was a prosecutor employee within ICTY. They had called for investigation. He argued that the Trial Chamber’s finding of between 1.5 and 2 million people having died during the Democratic Kampuchea regime was improper, and they had appealed this factual finding. “That is quite tragic in light of the eight years of procedural history’, he said. Thus, “there should be no doubt whatsoever that the issue of demographics, the issue of how many people died […] is a crucial, fundamental issue for the defense”.

He said that they felt 2-TCE-93 was unqualified, but that an option should be explored to call Patrick Heuveline, who was now teaching at the University of California. Mr. Heuveline came to conclusions that the Nuon Chea Defense Team had not reached, but that this debate should be held in public. “As we know, justice must be done, but justice must also be seen to be done”.

He criticized the chamber’s “heavy reliance on exhumation reports from DC-Cam”, as drafted by Craig Etcheson.

Judge Claudia Fenz inquired what the relevance was for the proceedings and whether this finding would alter legal findings. Mr. Koppe argued that even if it was not legally relevant, this matter should be discussed in public – if not for legal findings, then at least to establish a historical record. This was very important for his client, he stressed. Judge Fenz replied that sometimes it was not possible to accommodate all interests and that this was still a legal proceeding, but that she understood the reasoning. Judge Lavergne said that the judgment, as read out by Mr. Koppe, did not necessarily imply that the Chamber accepted the findings – it just said that the experts accepted the findings. Mr. Koppe pointed to an interview by Judge Fenz, in which she had mentioned “1.8 million deaths”. Judge Lavergne asked rhetorically whether Judge Fenz was the one who rendered the judgment. Judge Fenz said that she could not remember the interview, but that she was usually careful with words. She then said that it seemed to her that Heuveline did not make any findings about the Vietnamese and Cham.

Mr. Koppe said that the most recent report from 2015 did not look at all the factors, but that there was a 1998 report.[1] He further pointed out that Heuveline’s expertise exceeded “by far” the 2-TCE-93’s expertise.

Mr. Lysak responded that while the historical context was indeed important, this court was not set up to rule on or discuss the legacy of the regime. “I’d be happy to have that with counsel at Meta House” once the proceedings were over, he said. The number of excess deaths was of limited legal significance, he arged. It need to be established whether there was widespread and systematic killing and whether the chapeaux-elements were fulfilled.

International Civil Party Lead Co-Lawyer Marie Guiraud reiterated that point and said that the numbers of deaths were irrelevant or individual criminal responsibility. The interest of Civil Parties needed to be respected.

Khieu Samphan Defense Counsel Anta Guissé reiterated their position that 2-TCE-93 could not be considered as an expert. However, the “real issue” for her was how her report would be considered. She alleged that it had “no probative value” if they did not have the opportunity to question her on the methodology. She also said that through the notion of intend it did have an impact on legal findings.

Mr. Koppe clarified that they did appeal the decision by the co-investigating judges. The situation was different at the time, since no major exhumation had been done. With a new study relating to Choeung Ek and Kraing Ta Chan. Judge Fenz wanted to know how this related how these studies would have an impact on the overall number, since they would at best determine the number of deaths at a certain crime site. Mr. Koppe replied that it matters for a number of policies implemented and that it might have an effect on the number in total.

Mr. Lysak responded to the responses by saying that it could not be said that the court cannot rely on reports that had been done. If they were going to hear on the issue of total number of deaths, Heuvelon might indeed be more appropriate to be called than the other expert, since she relied on his analysis.

The President then invited the parties to react to a motion to admit documents regarding 2-TCE-82, but neither the Khieu Samphan, nor the Nuon Chea Defense Team had been able to prepare for it. They will be heard on Monday, September 5.

 

[1] E3/1799.

 

Featured Image: Visitors at the hearing (ECCC: Flickr).