Nuon Chea Defense Team Ends Closing Argument by Preparing for Rebuttal

At 9:00 a.m., Judge Nil Nonn began the day’s hearings. The Greffier confirmed all parties are present, except for Nuon Chea, who has waived his right to be present in the courtroom and is participating remotely.

Nuon Chea’s Defense team continued with their presentation from Friday. Defense Co-Lawyer Son Arun recounted the events of last Friday, in which his team responded to prosecution and civil party arguments, and outlined the core of Nuon Chea’s case, which they call “the crocodile.” Friday’s presentation also a discussion of the first CPK policy, the defense and security policy, and how it was implemented at three of the four security centers charged in the case. As the hearing finished early on Friday, defense was unable to present Nuon Chea’s case on the last security center, S-21, so Co-Lawyer Victor Koppe will do so today.

Mr. Arun stated that today’s presentation will be as follows, noting that they have left the discussion of S-21 until the end of the day. Defense will present on the three other CPK policies that are the focus of the trial.

First, defense will present on the alleged policy to target four specific groups, the Cham, Vietnamese, Buddhists, and former Khmer Republic officials and soldiers. Mr. Arun’s colleagues will show that there is no detailed evidence showing that people were actually targeted for being members of specific groups, nor is there evidence that Nuon Chea involved. Instead, evidence will show that members of these groups were treated like other citizens when they were arrested, detained, or executed, because they seriously violated Democratic Kampuchea (DK) law. Co-Lawyer Victor Koppe will explain the defense’s position on the treatment of the Cham, and present part of treatment of the Vietnamese. Liv Sovanna will conclude the presentation on the treatment of Vietnamese, and will discuss the treatment of Buddhists. Finally, Doreen Chen will present on the treatment of former Khmer Republic/Lon Nol soldiers and officers.

Mr. Arun said that the second CPK policy to be discussed is on cooperatives and worksites. Ms. Chen will argue that establishment of cooperatives and worksites was lawful and a logical response to conditions of the country at the time. She will also discuss how evidence fails to show that Nuon Chea was responsible for any alleged crimes at cooperatives or worksites charged in this case

The third policy defense will discuss is the alleged CPK policy on forced marriage. Ms. Chen will show how the policy was lawful and legitimate. Mr. Sovanna will then show how the evidence with regard to marriage fails to establish that there was a pattern of forcing people to marry, and that the evidence is not enough to establish any of the crimes charged related to marriage in this case.

Finally, Mr. Koppe will present the defense and security policy as related to S-21. In conclusion, he will offer a brief conclusion of defense submissions and explain relief that defense is seeking.

Mr. Arun yielded the floor to Mr. Koppe.

Alleged Targeting of Specific Groups: Cham, Vietnamese, Buddhists, and Former Khmer Republic Soldiers and Officials

Mr. Koppe noted that the prosecution has claimed that the CPK had a policy of targeting all enemies, and a policy of having one Khmer race and of not recognizing Cambodia’s minorities.

Mr. Koppe explained that defense will show that there is no explicit reference to any such policy in official documents. He asked, since the CPK were always clear in expressing their policy in official documents, why was there no call to hatred for these four groups? The answer, he argued, is that there was no hatred and there was no so-called targeting policy. On the contrary, the CPK policy was to treat all persons equally, regardless of race, ethnicity, religion, or gender. But people were arrested and investigated when they violated the legitimate CPK defense and security policy discussed yesterday.

Mr. Koppe explained that CPK’s goal was to protect and rebuild the country, and as many people were needed for that effort, there was no reason, and it was illogical, to kill a large part of the Cambodian population. Moreover, Mr. Koppe argued, the prosecution theory is contradictory if, on one hand, they argue that the CPK intended to kill vast majority of population, but on the other, they argue that CPK also forced people to marry and have children.

He noted that, first, the evidentiary question was not if someone who was part of one of the four groups was arrested, detained or killed, but that that s/he was targeted because of their religion, ethnicity or political ideas. The link between the action taken towards them and their membership in a specific group must be proved beyond reasonable doubt by specific and credible evidence. The second evidentiary requirement is, if crimes were committed against members of a particular groups, whether those crimes were necessarily committed pursuant to a policy or under the instructions of the CPK. Specific evidence of this is required, including a link to Nuon Chea. For the crimes of genocide, persecution, and extermination, specific intent is required, which means that there must be evidence that proves beyond a reasonable doubt that Nuon Chea himself had the specific criminal intent to commit those crimes. The third evidentiary requirement, as held by the SCC, is to show that just because someone disappeared that he or she was necessarily killed. Fourth, mere statements that all members of one of the four targeted groups were killed do not constitute proof beyond reasonable doubt of killings. Specific and detailed evidence is needed. Lastly, mere statements of orders to kill any of the four groups does not constitute proof of the orders themselves.

Mr. Koppe noted that this is likely to be the sole trial with allegations of genocide, and it’s tempting to create a legacy as being the Chamber that established the Cambodian genocide, but reminded and requested the Chamber to evaluate the evidence presented impartially, keeping burden of proof and SCC notes on burden of proof in mind. Mr. Koppe argued that if the Chamber does this, then there will be no conviction of Nuon Chea.

Allegations related to Treatment of the Cham

Mr. Koppe noted that the prosecution had asked the Chamber to develop the law on genocide, in other words, to create law that does not exist today, in order to convict Nuon Chea of alleged crimes committed in the 1970s. This is a disregard of the principle that one can only be convicted under the laws that existed at the time of the act in question, a fundamental principle of a criminal trial.

Mr. Koppe next stated that there was no genocide, and no religious persecution of the Cham, rather, the Cham were treated like every other DK citizen.

He offered a road map for the evidentiary analysis.

First, he said, the fact that evidence of an official policy of persecution or genocide of the Cham is nowhere to be found and so nothing permits a finding of a nationwide or local persecution or execution of the Cham. The prosecution said that the CPK had prohibited the Cham religion, had extermination campaigns where Cham were most concentrated, they did so with the long-term intent to destroy Cham group, and that Nuon Chea took part in this campaign. Mr. Koppe responded to this argument with the following points:

• The prosecution has provided no objective evidence that the CPK had extermination campaigns or an extermination policy. Their main basis for this position is the opinion of scholars or their own opinions or their own analysis. Those scholars are either not witnesses or experts on Cham, so their opinions have low probative value. The prosecution also relied on a witness who had previously been an investigator at the ECCC, and as the ICTY has held, investigator’s opinions have no probative value because they are a repetition of the prosecution opinion. The reason proffered for the persecution of the Cham was that they were “beyond reform,” but the investigator was the only person who had this opinion.
• No documents exist that show a calling for the prohibition of Islam. On the contrary, the DK constitution explicitly recognized the right to worship any non-reactionary religion and Mr. Koppe stated that Islam, like Buddhism, was not regarded by the party as reactionary. Mr. Koppe also cited to Duch’s testimony, where Duch explicitly said to Mr. Koppe that there was no CPK policy against the Cham.
• The prosecution argued that a five-point plan announced by a commune cadre that required Cham to burn the Koran, raise pigs, forced the Cham to cut hair, eat pork, and only marry non-Cham. The only source of this information was a person who did not testify in court and no documents exist in support of a five-point plan. Moreover, records do show that marriage between Cham individuals were in fact authorized by local authorities.

Next, Mr. Koppe discussed the 1975 Cham rebellions against the Khmer Rouge. The prosecution argued that these rebellions were a reaction to previous religious persecution rather than an act of treason, but their basis was hearsay from people who were not key figures behind the rebellions, so knowledge of the rebellions was incomplete. Witnesses who could tell the whole story either died or were related to a security center excluded from the scope of Case 002/02, or they are senior official in the current government who the Chamber refused to call to testify. For example, Ouk Bunchhoeun, who mentioned in an interview that there were two organized rebellion movements by Cham and Khmer individuals and that the movements were suppressed or the individuals arrested for treason.

Evidence casts doubt on the assertion that the Cham were victims of organized persecution.

Mr. Koppe stated that another person who holds key information about these events is Prime Minister Hun Sen, who the Chamber refused to summon to give testimony. Evidence shows that his troops suppressed these Cham rebellions with heavy artillery weapons and naval boats, and his naval superiors were Heng Samrin and Sao Phim.

Alleged Breakup of the Cham

Mr. Koppe stated that the prosecution claims that the movement of Cham from the Mekong River area was in response to the Cham rebellion and showed the CPK intent to persecute the Cham. However, evidence shows that both Khmer and Cham were transferred from the area, so, Mr. Koppe asked, how could it be persecution if the Cham were treated like the Khmer? Evidence proves that the movement of people had no link to the Cham or the rebellions, rather that it was part of the reconstruction efforts to move people to less populated areas with more food. Mr. Koppe stated that the Cham were treated like everyone else.

In the absence of objective or reliable evidence of CPK intent to persecute, the prosecution misrepresented evidence to make their case. Two examples of many are: (i) Prosecution claims that Sales Ahmat said that Ke Pauk identified the Cham as traitors that must be smashed. But what he actually testified was that he only heard Ke Pauk talking about “purging the mobile unit forces who betrayed the Angkar, regardless of their ethnicity, whether Cham or Khmer.” (ii) 2. Prak Yut, former Kampong Siem District Secretary, told OCJI that she implemented an order to execute Cham before trial. During her in-court testimony, however, she said that the order from the sector was not to smash all the Cham but to purge bad elements who oppose the revolution or otherwise cause problems and arrest them. And she said there were good people among Cham who were untouched, and some of those Cham got married with Prak Yut’s authorization.

Mr. Koppe noted that there was evidence regarding the CPK’s view of the Cham that was ignored by the prosecution because it did not fit into the Manichean narrative. Evidence shows that the CPK always considered the Cham the same as Khmer. Mr. Koppe cited a number of examples of this, including a June 1975, a radio broadcast referred to Cham as Islamic brothers who helped to rebuild the country.; that a high-ranking CPK member, Math Ly was a Cham Muslim, an April 1976 speech by Pol Pot, and a DK document called “Social Class Struggle in Cambodian Society,” that showed the Cham and Khmer were viewed the same.

Mr. Koppe stated that the prosecution has failed to present one piece of reliable evidence that Nuon Chea held any negative view of Cham or Islam, yet they seek convictions for genocide and religious persecution. Such convictions require first proving genocidal or persecutory specific intent. To reach this, the prosecution relied on a witness who testified that Nuon Chea ordered the killing of Cham, but what the witness stated was that he “did not know about others, but during the regime Pol Pot was not the only one who issued orders.” Nuon Chea, who was in charge of party training, might have given orders, and this witness said he heard from others that Nuon Chea mentioned the smashing of KGB and CIA agents during training. But there is no direct testimony that he heard Nuon Chea order or support the killing of Cham.

The next topic discussed was the how the crime-based evidence does not support the prosecution’s argument that the existence of a genocidal or persecution policy can be deduced from the alleged pattern of crimes.

Mr. Koppe said that the prosecution claimed that religious persecution of the Cham was evidenced by the suppression of Cham culture: there were clothing requirements, requirements to cut hair, requirement to eat pork, and closing of mosques. Mr. Koppe explained that, first, there was no evidence that such measures were pursuant to an official order or policy and, second, these measures either related to CPK ideology of cultural revolution, gender equality, or practical consideration. For example, many Khmer women had short hair then; there was a shortage of buildings and building materials, so mosques were used for construction materials or transformed into hospitals or warehouses; a shortage of food made it impossible to guarantee protein, and evidence shows that the Cham could choose beef or fish or rice with salt instead of eating pork. In areas of the country where those food measures were in place, they applied to everyone. And lastly, international law recognizes that in times of war or emergency, certain measures can be imposed.

Mr. Koppe said that the prosecution also relied on statements that most Cham were killed or disappeared, but this does not explain why the Cham were allegedly killed or disappeared, and disappearance does not mean conclusively that they were killed. Mr. Koppe discredited the credibility of witness testimony in support of the prosecution’s argument and highlighted witness testimony in opposition. In one example, he noted that You Vann had testified that Ta An ordered her to verify a list of Cham for who were good and who were bad elements, and that not all those on the list “disappeared”. Mr. Koppe maintained that where Cham were arrested or detained, it was because of their individual actions and not due to their religion or religious identity.

He concluded that there was no campaign of genocide or religious persecution, rather, the Cham were treated like every other DK citizen.

Treatment of Vietnamese

Mr. Koppe said that the same analysis applies to the treatment of Vietnamese. The prosecution argued that genocide and racial persecution was committed against Vietnamese, but there was no direct or indirect plan to commit crimes against Vietnamese civilians as a result of their race or nationality. There was also no evidence that Nuon Chea called for execution or persecution of Vietnamese nationals. There was no CPK document that called for execution or persecution of Vietnamese civilians. And, Mr. Koppe argued, any reference to Vietnamese enemies referred to military Vietnamese, not to civilians.

In support of this, Mr. Koppe reminded the Chamber of the context of the time that these acts took place – there was an international armed conflict between the DK and Vietnam, which resulted in enemies present in DK, including Vietnamese soldiers and collaborators who acted as proxies of the Vietnam government and took actions threatening the security of DK. Mr. Koppe noted that international humanitarian law recognizes that people who act as spies, sabotage, or threaten security, are not civilians but “taking an active part in hostilities” and as such they become legitimate military targets. This is important because Nuon Chea is accused of crimes against innocent civilians and for destroying them on the basis of their race. Mr. Koppe also highlighted that the evidence on which the prosecution relies entirely on evidence from Vietnamese soldiers and individuals who were participating in hostilities.

The prosecution argued that other sources confirmed that there was a CPK policy to have one racial identity in DK, but the prosecution took citations out of context and relied on out of court statements and experts and publications with secondhand hearsay, that were not tested by defense. Not only was there no record of intent to destroy Vietnamese nationals, but evidence showed that there was a clear distinction between Vietnamese soldiers and Vietnamese civilians.

Mr. Koppe then cited to CPK documents like 1976 CPK four-year plan, all issues Revolutionary Flag and Revolutionary Youth, statements made by Nuon Chea, to show that there was nothing in CPK documents of policy that called for Vietnamese persecution or destruction. Moreover, Mr. Koppe argued that it is untenable for the prosecution to ask the Chamber to consider that every reference to “enemies” in CPK publications refers specifically to Vietnamese people, especially in light of the 31 specified categories of enemies by the CPK. The prosecution argued that the CPK sought to incite animosity against ethnic Vietnamese, based on assumption that any reference to “yuon” amounted to an incitement to genocide. While CPK publication do use term “yuon”, when looked at as a whole, and objectively, Mr. Koppe argued that the CPK clearly distinguish between members of military and people spying/sabotaging on one hand, and Vietnamese civilians on the other. For example, one reference to “yuon enemy” talks about swallowing Cambodia and defeating the yuon enemy – this is clearly a military reference. Lastly, the use of inflammatory language in CPK publications towards a military opponent is standard during war and does not indicate genocidal intent.

Mr. Koppe then cited witnesses who testified that only Vietnamese soldiers or those who attacked DK were considered enemies, not Vietnamese refugees or civilians. Mr. Koppe argued that the prosecution misrepresented evidence by failing to provide the whole picture. There was no genocidal policy, and no document or any instruction to the internal smashing of the yuon. Rather, the policy was to counter the attempts to invade Cambodia by the external yuon. Testimony from two cadres and from Duch also confirmed the absence of a genocidal policy.

With regards to the question of genocidal intent that Nuon Chea did or did not have, the prosecution argued that Nuon Chea used inflammatory language to incite hatred against Vietnamese. Mr. Koppe said that if the Chamber reads each entire document that is quoted by the prosecution in this section, then it will be clear that all the references are to soldiers, including those persons acting as proxies for Vietnam, and there are no specific references by Nuon Chea to persecute or eliminate the whole group. The prosecution also argued that Nuon Chea was directly linked to arrests of Vietnamese people, including women and children, but there is no evidence that Nuon Chea ever received these reports, nor is there evidence of the reasons for the arrests of persons involved, so there exists the possibility that they were participating in activities against the DK.

Mr. Koppe then presented evidence related to the CPK having a good relationship with Vietnam, citing a 1978 CPK document in which the CPK talked about a wonderful friendship with Vietnam, and a Revolutionary Flag issue that said that Cambodia holds out it hand in peace to the Vietnamese people. Mr. Koppe said that referring calling for friendship with the Vietnamese unequivocally prevents a finding of genocide or persecution on the basis of race.

Mr. Koppe argued that the prosecution asked the Chamber to find that there was a CPK policy on the Vietnamese based on vague, and unclear hearsay evidence, with quotes that were taken out of context, and while ignore the obvious, which is a clear lack of intention to eliminate the Vietnamese race. The CPK drew a clear distinction betfween the Vietnamese government/military/collaborators and the Vietnamese people. Because of this, Nuon Chea cannot be convicted of genocide or persecution or any other crime against the Vietnamese people, as there was no indication that the Vietnamese were systematically and specifically targeted.

Next, Mr. Koppe yielded the floor to Liv Sovanna to finish the presentation on the treatment of the Vietnamese.

Mr. Sovanna said that in order to show that there was an official genocide on ground, evidence must show that Vietnamese people were killed and that they were killed because they were Vietnamese.

First, he said, the prosecution argued that the deportations of Vietnamese were the initial step in a plan to eliminate Vietnamese from Cambodia. But, Mr. Sovanna said, the evidence offered by the prosecution does not support those claims. On the contrary, he argued, there is evidence that there were official instructions not to harm Vietnamese, and the Vietnamese return to Vietnam was voluntary, so there was no forcible displacement, as shown by the collaboration of Vietnam and DK for a smooth transfer or people. In addition, the prosecution failed to address two elements crime of deportation: (i) the alleged victims were lawfully on DK territory and (ii) there was no legitimate justification for displacement.

Mr. Sovanna next turned to the factual allegations. First, with regard to the statement that “everyone had heard that all Vietnamese in DK had died by 1979,” even if were true, the statement does not prove genocide as it is impossible to prove the Vietnamese population before or after DK. The two census reports closest in time to DK years were completed in 1962 and in 1998.

Second, he argued, the prosecution spent time arguing that Vietnamese were identified, put onto lists, and executed. The prosecution failed to establish that this was only done for Vietnamese nationals, failed to show this was pursuant to an official policy, and failed to link these lists with killings of Vietnamese, and failed to show a link between the Vietnamese nationality or ethnicity of the individuals and their alleged persecution or killing. Moreover, testimony that a person was “taken away” does not constitute proof beyond a reasonable doubt of arrest or persecution. The fact that a Vietnamese person was arrested or killed is not proof beyond a reasonable doubt that it was because they were Vietnamese. And the fact that crimes were committed against the Vietnamese does not prove that it was a national CPK policy. Mr. Sovanna concluded that the prosecution is asking the Chamber to reach a guilty verdict in absence of actual evidence.

Finally, as there was no official CPK genocidal policy and only a few, if any, crimes against Vietnamese can be established beyond a reasonable doubt, one reasonable conclusion is that when crimes were committed, they were committed by individuals who acted autonomously and not under orders from CPK. And, if crimes were committed, there is no evidence that they were reported to Nuon Chea, or that he encouraged or ordered them, therefore he cannot be held criminally liable.

Treatment of Buddhists

Mr. Sovanna stated that the prosecution argued that the CPK had a policy aiming at persecuting Buddhists as part of policy to persecute their enemies and so wanted to destroy Buddhist religion. There is no evidence of this, and it defies logic as CPK members were Buddhists themselves. The CPK documents show the opposite, that there was no prohibition of religion.

Mr. Sovanna explained that he will first show that there was no policy prohibiting Buddhism or aiming to persecute Buddhists, and second, he will show that pattern of events does not show persecution of Buddhists.

First, evidence does not support the prosecution’s claim that the CPK had a national policy to annihilate Buddhist practice as there was never a prohibition of religion under DK, nor was there a call for hatred or discrimination in CPK official documents of publications.

Under the DK constitution, people could worship any religion that was not reactionary. CPK did not consider Buddhism to be reactionary. Duch testified to this, as did several other witnesses cited by Mr. Sovanna. There was no call for hatred or discrimination by CPK publications. The prosecution’s claim that CPK referred to Buddhists as leeches and parasites, was not supported by any documentary evidence at all. The prosecution tried to explain the absence of evidence by saying that the regime tried to avoid a public admission of its policy of destruction, but this would result in convicting Nuon Chea on an absence of evidence. Mr. Sovanna cited several instances to the contrary, in which a radio program or DK notebook on division of class status and struggle referred to Buddhists as brothers, nationalistic, and loving, which were considered good qualities. As also confirmed by Duch’s testimony, monks were considered to be from a good background, and were closely associated with the peasant class.

Mr. Sovanna said that as the prosecution had no objective evidence of a CPK policy to persecute Buddhists, they used hearsay and out of court evidence which is of limited reliability. He then gave two examples: (i) the prosecution relied on an alleged meeting in May 1975 with Pol Pot, Nuon Chea, and Sao Sarun where they conveyed a plan to close all Buddhists pagodas. But Sao Sarun’s testimony said the discussed closing markets, and nothing about monks or pagodas; and (ii) the prosecution reviewed an interview given by Heng Samrin, in which he said that Nuon Chea and Pol Pot instructed cadres that monks were a special class that needed be wiped out. But Heng Samrin was not called by the Chamber to testify, so the statement is untested, and no other witness gives corroborating evidence. No out of court statement can be the only basis for finding a fact beyond a reasonable doubt.

Lastly, Nuon Chea has explained that he had nothing against Buddhism and is a Buddhist himself. He told Thet Sambath that CPK did not look down on religion or pagodas. He described the CPK view on religion as such “if we pray for a candle, how will it come? We have to make it by ourselves. If we have no water, we must make a dam. So, communists and educated people to believe in people power.” There is nothing discriminatory or hateful in this statement, said Mr. Sovanna.

With regard to the prosecution claim that there was a “consistent pattern of DK authorities persecuting those who practiced Buddhism,” they talked about the forced disrobing of monks, destruction of statues or pagodas, and people could not publicly practice their religion.

Mr. Sovanna offered the following evidence to the prosecutions claims:

• Disrobing of monks: the prosecution attached a 49-page annex to its brief with quotes in each zone, that shows a persecution of Buddhist monks and lay believers, but this evidence is general and non-specific. This was an attempt to meet their burden of proof through quantity and not quality of evidence. Regarding alleged disrobing, most of the evidence supported the claim that all monks were disrobed, but these are unsubstantiated statements. Two witnesses discussed the disrobing of monks, one monk and a district chief, and neither said that threats of force were used to make monks disrobe. No testimony was heard that established that disrobing was done to persecute monks, rather monks chose to disrobe for political reasons. This was related to their faith, and not as a form of mistreatment. Working for DK was part of their duty as DK citizens, and it shows that CPK aimed to treat everyone equally.
• Additionally, there is no evidence that Buddhists were killed because of their religion. The late Ian Harris said, after extensive research, that there was systematic policy to kill monks. The prosecution relied on speculative unsubstantiated evidence that the monks had to abide or they would be killed, but witnesses did not give any specific reason why they believed this. There is also no evidence that proves beyond a reasonable doubt that Buddhist monks or Buddhists were killed, and, most importantly, there is no information that links the religion of the victim with the killing.
• Alleged destruction of pagodas or use for non-religious purposes: Many pagodas had been destroyed or damaged during civil war or by U.S. bombings. There were limited public buildings to use for grain storage or as police stations, so use of pagodas were based on practical considerations and not on an intent to persecute Buddhists. The limited evidence fails to establish a systematic pattern. Finally, there is evidence that in Phnom Penh, pagodas were kept intact and a number of official events that CPK attended were held in pagodas or involved monks.
• Practice of religious rituals: Mr. Sovanna cited several witnesses who testified that they could practice Buddhist rituals. He said that some individuals said they could not practice religion freely does not show that it was pursuant to an official policy or one that persecuted Buddhists. The inability to carry out certain rituals was due to the DK war with Vietnam and restrictions applied to all DK citizens irrespective of their religion. Lastly, restriction of some religious rituals does not amount to religious persecution, and some restrictions are allowed under international law.

Mr. Sovanna said that considering the evidence, no conviction of Nuon Chea on the persecution of Buddhists on the basis of religion could be possible.

Mr. Sovanna yielded the floor to Doreen Chen.

Ms. Chen discussed the treatment of former Khmer Republic officials and soldiers, which is the fourth and final targeted group.

Ms. Chen stated that the prosecution’s argument was that this was a group of persons who were victims of political persecution who were systematically and ultimately executed. Whether there was a CPK policy of persecution of Lon Nol soldiers and officials was discussed extensively in Case 002/01. In that case, the SCC acquitted Nuon Chea, and found that there was no evidence of a policy contemplating the execution of all Lon Nol soldiers and officials during the DK regime.

The same reasoning should apply in Case 002/02, especially as the prosecution relied on the same evidence they used in Case 002/01, despite the fact that the SCC found it to be insufficient. The prosecution continued to rely on unauthenticated and out of court documents in this case.

Ms. Chen noted that the defense was forced to operate in the dark on this charge as the scope of the charges was never clearly defined, so it was impossible for the defense to know what the exact case is they have to answer. Ms. Chen said that nonetheless, the defense will answer what they can.

First, the defense asserts that there was never a CPK policy to target Lon Nol soldiers or officials or to persecute them because of their political opinions.

Second, the defense will address the factual allegations on the ground to show that nothing in practice shows that Lon Nol soldiers or officials were systematically persecuted or executed because they were former Lon Nol.

With regard to the existence of a policy to target and execute Lon Nol soldiers and officials, Ms. Chen noted that the prosecution claim mostly relies on one civil party who testified in Case 002/01, but not in Case 002/02. The prosecution misrepresented his evidence in that what he actually said Nuon Chea spoke about was finding “individuals who burrow within the party.” Nuon Chea did not specify former Lon Nol regime soldiers or official, rather, it was the witness’s impression that Nuon Chea referred to former Lon Nol, and a person’s impression is not proof beyond a reasonable doubt.

Ms. Chen then cited the other sources on which the prosecution relied, including witnesses, and documentary sources such as DC-Cam documents, S-21 documents, secondhand hearsay, and other unauthenticated lists of people who were allegedly arrested from S-21 and Tram Kok lists. The prosecution said that the evidence of a CPK policy is that Lon Nol officials and soldiers are listed in these documents. Ms. Chen, however, stated that (i) the documents are unreliable because they are out of court and/or unauthenticated; (ii) even if the documents were reliable, being on a list of Lon Nol officials or soldiers does not mean that those persons were targeted for being former Lon Nol, (iii) a quantity of evidence is not proof beyond reasonable doubt.

Ms. Chen noted that the prosecution cannot present any official CPK document calling for execution or persecution of former Lon Nol officials or soldiers. Lastly, Ms. Chen said that, in an attempt to hide the lack of evidence, the prosecution claims that any reference to enemies in CPK documents refers to former Lon Nol officials and/or soldiers. As Mr. Sovanna said earlier, enemies were people who acted against the state – they were not targeted for their religion or political views, only their actions mattered.

Finally, Ms. Chen noted that the prosecution could not link Nuon Chea to alleged persecution of killing of Lon Nol officials or soldiers. All the evidence offered by the prosecution was inconclusive or non-representative. For example, the prosecution state that Nuon Chea admitted to Thet Sambath that the top official of the Lon Nol regime was liquidated. But Ms. Chen states that what Nuon Chea actually said when asked about orders regarding top Lon Nol officials was “as I recall, defeated soldiers were to surrender their weapons and return home.” Further in the same video, Nuon Chea has said that he was not aware of killing of former soldiers and if he had known, he would have acted to prevent those actions because they were just ordinary soldiers. Ms. Chen argues that the prosecution has to accept the exculpatory parts of the video, and not just the quotes that they pick to support their case.

Ms. Chen stated that the prosecution presented nothing permitting finding guilt beyond a reasonable doubt, and reviewed their evidence. Four former cadres from three different zones categorically denied the existence of an execution policy of Lon Nol; two were from the Southwest Zone and one from various locations in the DK. The prosecution focused on the mobile witness saying his testimony showed fundamental inconsistencies and an inclination to minimize his knowledge of crime. Ms. Chen pointed out that if the same standard was applied to their witnesses, they would not hold up at all. Moreover, this witness was a credible witness, and the SCC relied on his testimony to acquit Nuon Chea of the charges related to the treatment of former Khmer Republic soldiers and officials in Case 002/01. Lastly, Prak Yut’s testimony summarized the CPK approach: she said that Sector Secretary Ta An “instructed [her] to identify former Lon Nol soldiers who were considered not good. Those who were good were spared and could live peacefully.”

Finally, Ms. Chen noted that some members of former regime led leadership positions in the DK and in the military, which is hardly consistent with a policy to persecute and execute them all. What it does show is the CPK defense and security policy, which was that those who were no threat were let be, only those who acted as a threat were treated as a threat.

Ms. Chen stated that in practice, the theme was the same. The prosecution failed to present credible and reliable evidence, or any evidence of systematic targeting and killing of those associated with Lon Nol. Rather, the evidence cited by the prosecution showed that people associated with Lon Nol happened to be arrested, but there were no details for the reasons for the arrest of the individual available generally, and where it was available, those people were engaged in activities threatening the regime. Ms. Chen reviewed two documents and one witness’s testimony that distinguished between good and bad behavior by former Lon Nol. What the documents showed was that any arrests of Lon Nol were due to the legitimate CPK defense and security policy, which targeted persons acting on an individual basis, with no link to Nuon Chea. The prosecution failed to establish beyond a reasonable doubt that former Lon Nol were killed because of their association to Lon Nol. Just as in the treatment of Cham, Vietnamese and Buddhists, there was no evidence to support the persecution of the former Lon Nol soldiers or officials on the basis of their political beliefs.

Ms. Chen introduced the next section, which will be on the CPK policy on worksites and cooperatives. She stated that cooperatives and worksites are fundamental to communist ideology, so they were central to many Cambodian experiences in the DK and therefore to the Manichean narrative. Today it seems unusual, but she noted that one cannot look at DK in a historical vacuum. In 1975 was the height of the Cold War and economic socialization was a widespread global phenomenon. As tempting as it is to put communism on trial, this is outside of this tribunal’s mandate. The differences between ideologies and their approaches to government are legally irrelevant here. What is relevant is whether CPK approach to establishing worksites and cooperatives was criminal in nature, and it was not, rather, the policy was legitimate and lawful, and the information on how the worksites and cooperatives were established fails to show that Nuon Chea is guilty for any of the crimes with which he is charged.

The prosecution argue that economic collectivization transformed DK into a prison without walls or a slave state, and thus Nuon Chea charged with enslavement as a centerpiece crime, accused of treating his people like commodities.

Alleged policy and alleged implementation

Ms. Chen began her presentation on the alleged CPK policy to establish cooperatives and worksites. Both the Closing order and prosecution say worksites and cooperatives were established to enslave the Cambodian population to achieve socialist revolution at any cost, even to the people. At best, this reveals an ignorance of socialism; at worst, a deep bias against it.

Ms. Chen says that to understand the context of the alleged policy, it is necessary to briefly review the fundamental principles of communism. Communism, Marxism, and Leninism, and more broadly, socialism are based on protecting the people and securing better standards of living. The biggest challenge to this goal is social injustice, which is driven by private means of production. This idea of private ownership means only a few people own the means of production, and most people’s livelihoods rely on means of production that they do not own. This creates exploitation and oppression of the many by the few, and ultimately a growing gap between rich and poor.

Ms. Chen said that under communism, eliminating social injustice requires transferring the ownership of the means of production from the few to a collective, which could be a country or cooperative. A cooperative is a way of organizing an agricultural community by organizing the limited means of production for all its members to use collectively, and then the production outputs are shared equally amongst the cooperative’s members. The members are equally entitled to use the means of production and share in any resulting wealth produced by it. Cambodia has been a country rich in resourced but with wealth concentrated in hands of a limited few. The CPK intended to create a more equal society with wealth and resources to be shared for all. This was the idea behind the cooperatives and worksites and land reforms and other movements – to move the means of production to the people, not to enslave but to empower the people.

The prosecution has said that the CPK intent to enslave the people was clear in its state ownership of them, but Ms. Chen notes that this is a misinterpretation of the concept of state ownership itself. State ownership is an ownership of the means of production, not an ownership of human beings, and this is clearly explained in the same document that the prosecution refers to in support of their argument. It is disingenuous of prosecution to misrepresent this concept. In many countries, it is not uncommon to have state ownership, including in the United States. Moreover, any concept of the enslavement of people would directly contradict core principles of Marxism and Leninism, in which people are their own masters.

CPK worksites and cooperatives, according to prosecution, was based on the principle of seizing the people and turning them into slave labor. It is a misinterpretation of concept: “seizing the people” stems from the Marxist and Leninist faith in the power and the wisdom of the people and the need for the people’s support. The CPK understood that any side that had the support of the people would succeed. Ms. Chen cited to a CPK document that describes this concept. Conscious of this strategic concept of the people’s support, the CPK made it a fundamental principle of the party to care for the people and protect the people and this was expressed in numerous CPK documents. It was also reflected in the twelve CPK principles that forbade the members from harming the people’s interests, and to make every effort to gain support of people by improving their lives. Improving the people’s standard of living was the party’s duty, strictly related to all of the party’s policy. The evidence is abundant that the CPK was not indifferent to how its policies would affect the people, but anything harming the people would be an unacceptable deviation from the guiding principles.

Closing order alleges that new people at cooperatives were treated differently from the base people. This is an example of ignorance of communism: both new and base people were members of cooperatives, to be treated equally so as to eliminate inequality and oppression. The people were akin to gods, sacred and almighty. The people cannot logically be considered as the idea of the enemy, and this is represented in many CPK documents. Ms. Chen cited to an issue of the Revolutionary Flag from 1978, and to criticism by Pol Pot of other countries for treating new people as an enemy.

So why did people suffer from hardship if the CPK was committed to improving their lives? Cambodia was in ruins in 1975 due to the civil war. Despite the CPK’s efforts to improve conditions, temporary hardship was a sad but inevitable situation. Although people’s standard of living was not great, it had improved by the end of the regime. It is unreasonable to compare the conditions then to today, or to Western countries or to suggest that CPK wronged the people for not guaranteeing certain conditions.

First, the closing order allegation that health issues started after DK started is wrong, as the United States had dropped over 2.7 million tons of bombs, which was more than all the bombs dropped by the Allies in all theatres in World War II. By 1975, much of Cambodia had been destroyed, including livestock and hospitals and infrastructure. And the war had made Cambodia slip from a large exporter of rice to a large importer, and by early 1975, the country was on the brink of starvation. Lastly, Cambodia faced a real threat from Vietnam, so the CPK’s mission focused defending and rebuilding the country.

The CPK’s post-war mission was to consider the people’s standard of living as the cornerstone of all policies. The CPK believed that building economic strength would improve people’s standard of living and provide material support to strengthen national defense, which could safeguard country’s independence and prosperity. The four-year plan for Cambodia was set out for 1977-1980, which included these principles of standard of living as related to economic strength, and national defense. The prosecution argues that the CPK wanted to export rice to fund military defense to achieve rapid industrialization, but in the four-year plan, the primary purpose of growing rice was to feed the people, not export it. The CPK policy focused on agriculture and not industry, as they believed that investing in agriculture would benefit people’s lives and stabilize the country, and it made more sense to use CPK’s few funds on light industry over heavy industry, because Pol Pot said light industry would help the people more, and provide daily necessities. The CPK also made it clear in documents that rice was for domestic production, only the surplus was to be used for export.

To implement the CPK plan for national reconstruction and defense, production and construction work was necessary. In the early 1970s the UN recognized the need for developing countries to focus all their resources to development and to develop their land to solve the food crisis. The CPK’s actions regarding worksites was consistent with these principles and chose to maximize water use based on an analysis of the geographic features in each area. Defense infrastructure was built by soldiers, and rice and water projects were built by civilians and cooperatives. At the time, it was the duty of all Cambodians to participate in national reconstruction to the best of their abilities.

The CPK explained to its cadres, and the cadres to the people, that the shortages caused by the civil war made the post-civil war a special time, in which the Cambodian people would need to unite to overcome hardship temporarily. The CPK stressed it would be temporary and would improve. So, reconstruction efforts – national planning, nationalization of industries, mass mobilization of people, the rationing of food and other necessities – these were all too common to people in the United States and in Europe after World War II.

It was a right in the DK for all citizens to work and be guaranteed a living, and under communist principles there was a guarantee of not exploiting or enslaving the people. Each would give what they could and the state would return what it had to take care of the people. The CPK set up guiding principles and detailed standards to guarantee improved living standards – said people should not work at night or without sufficient rest, e.g. The CPK also determined how much food people should get after 1977, which was sufficient, but that there were rations necessary before then due to the shortages in the country. CPK had policies to build shelters and provide clothing and mosquito nets, imported medicines, and told its members to improve people’s living standards. Cadres were told whoever made people’s lives better were doing a good job, and for those who failed to do their duties, CPK investigated and punished those. But like Nuon Chea, most cadres were doing their best.

Ms. Chen provided details on work hours, food, work assignments, the three tons per hectare goal for agricultural output, and other living conditions that are detailed in CPK documents. She noted that the prosecution highlighted a proposal to reduce working hours in telegram to Pol Pot in 1976, and prosecution said it was refused, but what the telegram actually says is measures were taken to reduce hours in accordance with guidelines from the party. Additionally, the goal of three tons per hectare was not arbitrary, but reflected the point where there would be enough for people.

The projects succeeded long-term. Within three years, Cambodia could provide enough food for its people, the water projects were effective in increasing crop cycles, with fish as extra food, paddy fields were green, people in generally good health, and malaria had reduced. King Father Sihanouk had said “the rich are not so rich and the poor are not so poor as before.”

The initial hardship situation in Cambodia was not due to the CPK, nor was it due to the CPK not doing enough when it was in power. Nor did the CPK enslave the population. The full realization of social and economic rights is a progressive process, and is recognized by international law.

Many blame CPK for overburdening population by not accepting international aid, but this is because self-reliance is essential to guaranteeing independence and sovereignty. DK did accept aid that was provided unconditionally, like from China, Sweden, and the former Yugoslavia and the CPK endeavored to engage in international trade.

The CPKs policies were lawful and legitimate, and in support of the care of the population. Temporary hardship was not a result of the CPK intending to enslave the population, and the conditions can only be assessed in the proper historical and geographical context.

Next, Ms. Chen reviewed the evidence presented on the four worksite and cooperatives, the Tram Kok Cooperative, the 1st January Dam Worksite, the Kampong Chhnang Airfield Worksite, and the Trapeang Thma Dam Worksite. Ms. Chen said she will present thematically, and not by site, but first she will address two initial matters to address first.

1. What is the case that defense is expected to answer with regard to the 1st January Dam? People from the 1st January Dam said the they were taken to the Baray Choan Dek Pagoda. This site can only be included if the link between it and the 1st January Dam is proved, and there is no concrete evidence that people were taken from the 1st January Dam to this pagoda. Therefore, the Chamber cannot convict Nuon Chea of crimes committed there.
2. On cooperatives and worksites, the prosecution misinterprets and misrepresents evidence. Some of the misinterpretation reflect ignorance of and bias against communism, Asian values, and Asian culture. To begin with, the prosecution interprets traditional Khmer metaphors literally and that can be problematic. For example, in Khmer working “day and night” means working hard and trying one’s best, not literally working day and night. In Khmer, “working with one’s bare hands” means creating or building something out of nothing, not literally only using one’s hands with no other tools; “blood and sweat” means work-pride obtained through one’s hard work. And “hot battlefields” is a metaphor for national reconstruction under the DK. It does not mean that people are exposed to lethal danger and expected to die while working – it is a policy metaphor. The prosecution misinterprets the CPK behavior. When the CPK highlighted Tram Kok as a model district or were proud of the 1st January Dam, that CPK was encouraging its people, and rewarding their hard work and resilience with praise, not the temporary hardship that the prosecution assumes, or that the Cambodian people could not have unified to build the Trapeang Thma Dam as quickly as they did.

Ms. Chen next presented on four cross-cutting themes in the evidence.

The first theme was on the authority structure in the four sites.

Nuon Chea was in charge of party education and training, and none of the four sites were under his control. The Kampong Chhnang Airfield was under military control, and the other three were under zone or division authorities, though they did not have direct responsibility for day-to-day operations. The unit authorities had significant authority which resulted in different conditions from unit to unit. Some hewed to party line, some deviated. Deviations could have been misunderstandings or a way of sabotage to mistreat people to turn them against the CPK, as testified to by a witness. And yet the prosecution said there was perfect compliance to party rule from the top. The prosecution said this because each level was in contact with level above, and all attended trainings. But the fact of communication is not enough without the content, and the content does not exist. The same is true with the allegation that Nuon Chea knew of crimes at the four sites, but without evidence on the content of the communications to and from the sites, it is impossible to assess the knowledge that is passed on. There is no detail like working hours or work quotas, or punishment for failing to fulfill work assignments. Zone level reports sometimes said there were issues, but no specifics, just that zones resolved them.

So, without content of the communications, the prosecution cannot prove beyond a reasonable doubt that Nuon Chea was in control of or knew of crimes at these four sites. In addition, the sites were large and there is no way to prove what, if anything Nuon Chea saw on his site visits.

Next was a discussion of the purpose and function of the four sites.

The establishment of cooperatives and water facilities were necessary for reconstruction and defense which was aimed at improving people’s lives. The airport, for example was a benefit to the military. The prosecution said soldiers were sent there for punishment, but Cambodia’s air force was at a disadvantage with Thailand and Vietnam forces. There are no documents that say that people were sent there to be punished. The units who were there were elite center divisions, designed to be mobile, deployed anywhere to respond to the most challenging situations. When asked if the airfield was a tempering place, witnesses said yes because the conditions were harsh. The conditions were harsh everywhere and they would have been especially so for the central divisions. That would have lead some soldiers to speculate that they were sent there as punishment for something. The exhortations of soldiers to work hard were also normal, as there is nothing strange about soldiers being reminded to do their duty. Additionally, CPK did not ignore technical or scientific standards in building the airport and water projects. Lastly, most of the water projects functioned as planned. The 1st January Dam, for example, continued to function properly until 1990, and irrigated fields in surrounding areas producing three tons per hectare.

Next, Ms. Chen discussed living and working conditions. There two issues with this topic, the first was to assess conditions in a historical and geographical context as previously discussed. The second was that unit chiefs had a lot of authority which resulted in varying implementations of CPK policy. For example:

• Each village was responsible for food production at worksites, some complained about food shortage, others had enough to eat.
• People reported a variety of work quotas, some units let the sick rest, other units disallowed sick members to rest.
• While some claimed that frequent work at night, others said it was rare, but sometimes it was cooler to work at night, sometimes in response to a particular need.
• Child labor was a deviation from CPK documents, which said children only to be given light work.

The last theme is the freedom of movement of people at the worksites. Ms. Chen noted that:

• This is not an absolute freedom as recognized by international law, as it is normal that people have to seek permission to leave during working hours. But on the rest day, every 10th day, people had freedom to visit their families or return to their villages.
• It was legitimate policy that soldiers who deserted their duty at the airfield would be captured and interrogated for being absent without leave.
• Restricting freedom of movement could also be a result of the duty to protect people from dangerous areas, and to protect site from sabotage.
• There is no evidence of large scale deaths at the sites. There were trainings, hospitalization, and a frequent transfer of workforce. Enforced disappearances, even if proven, do not prove that killings occurred. There is no evidence to prove this beyond a reasonable doubt.

Lastly, the prosecution failed to prove beyond a reasonable doubt that any of the alleged crimes at any of the four sites, and they have failed to prove Nuon Chea’s link to those crimes.

Next, Ms. Chen continued with a discussion of the final policy of the CPK, that of regulating marriage, and the charges of forced marriage and rape.

The prosecution said that the CPK had a broader policy to enslave the population, and as such had a policy regulating marriage and a policy encouraging population growth. The official CPK policy was that people could get married if both spouses consented and the authorities approved. People were encouraged to have children. By the prosecution portraying this as a breeding program, they implied that it encouraged rape, they hid their lack of evidence of any such policy, and attempted to demonize the CPK. Additionally, Ms. Chen argued, the prosecution ignored credible evidence and misrepresented the res to secure a conviction.

Ms. Chen began with a cultural perspective. She stated that the question of forced marriage within the context of marriage is a sensitive one. Marriage touches on matter of free will, consent, the institution of marriage, and on concept of love. It is also culturally sensitive, as in many places, including Cambodia, it is taboo to talk about your intimate life and intimate feelings, especially in a courtroom with people of the opposite sex and of different cultures.

Ms. Chen stated that the question before the court is not whether the way marriages were regulated under DK was morally right or wrong or how it makes us feel today, but whether there is credible evidence showing that crimes were committed according to an official CPK policy for which Nuon Chea can be held responsible. And she said that the answer is no.

Ms. Chen noted that much of the research on forced marriage is inherently flawed and biased because the starting point of the research was to find victims of forced marriage, rather to neutrally analyze the spectrum of how marriage occurred under DK. She cautioned the Chamber to ignore the dominant Western perspective that marriage should have happened a certain way, for example, a marriage based on love is a western construct and did not happen in much of the rest of the world. Peg Levine, one of the experts who testified on marriage, said “how will the judges ensure a fair trial for those accused of forced marriage with so many double binds before them?” Ms. Chen noted that double binds – or contradictions – do not have a place in a court. The Chamber needs to follow the evidentiary principles clarified by the SCC, examine the evidence in a careful and dispassionate way, and when that happens, Ms. Chen argued, the Chamber will find no evidence supporting the prosecution case.

Ms. Chen offered a road map of the presentation on the regulation of marriage. First, Ms. Chen will present on the official CPK policy on marriage, which was based on consent. Next, she will show that the prosecution theory of a “breeding program” is based on speculation and bias and not actual evidence. Finally. Ms. Chen and Mr. Sovanna will show that there is no systematic practice of forced marriage, there was no nationwide policy and that if there were incidents of forced marriage, they were individual incidents unrelated to CPK policy.

The official CPK policy on marriage was a consent-based policy, specifically, there was policy regulating marriage that required consent from both parties and from the authorities for a marriage to be valid. Two experts testified that there was no evidence of a policy on forced marriage. Ms. Chen stated that the CPK followed revolutionary principles, that is, the laws, views, stances, and morality of the party and the people were to be respected and followed by all or revolution would fail. As a result, setting up a family had to follow two concepts: first, both parties had to agree; and, second, the collective had to agree. On sexual violence, the principle was “do not behave in any way that violates females.” And Pol Pot also stated that marriages should occur on a voluntary basis.

The prosecution dismissed this clear policy and instead said it indicated the power of collective to take the final decision whether the parties agreed or not. Ms. Chen cited multiple witnesses who testified that girls had to be at least 18, the parties had to love each other dearly, parents had to approve the marriage. She also cited Duch, who testified that there was no forced marriage policy, and she noted that Duch shifted blame to Nuon Chea and away from himself wherever he could.

Next, Ms. Chen addressed the prosecution claim on the CPK policy of population growth. The prosecution interpreted this policy as the CPK claiming ownership over the reproductive capacity of their slaves in that the CPK forced people to marry and to conceive in furtherance of population growth. Ms. Chen stated that the CPK did have a goal to increase population in order to strengthen and protect the nation. She noted that many countries, especially after war, have similar policies. These policies exist because if a nation has too few births, it cannot replace itself, and thus needs to ensure its long-term survival. In support of the legitimacy of the CPK encouragement of population growth, Ms. Chen noted that Cambodia was coming out of years of civil war and was back at war with Vietnam.

Ms. Chen summarized the expert articles on forced marriage, mentioning four articles by academics.

Kasumi Nakagawa testified in court that there was no evidence of a nationwide policy of forced marriage. Peggy Levine had conducted the only neutral study, that is, a study that analyzed the spectrum of marriage in Cambodia and did not focus first on victims of sexual violence. Ms. Levine’s study concluded that there was no link between the population growth policy and forced marriage, and that there was no forced marriage policy.

Ms. Chen then stated that there is no credible evidence linking Nuon Chea to forced marriage. There is one quote in the book, Behind the Killing Fields, in which he is quoted as saying “the man always wants to choose a beautiful girl, so that’s why we forced them to get married and Angkar chose the wife.” The prosecution said that just because Nuon Chea may have said this, it was enough to show that there was a policy and that he participated. Yet, Ms. Chen noted, there was no recording of Nuon Chea saying this, Nuon Chea did not have chance to review book before publication, and authors said they would write the book the way they thought it should be told. The quote proves nothing, and it certainly does not outweigh that there was no such thing as a forced marriage policy and that, in fact, marriage was based on consent.

Ms. Chen noted that the prosecution needed to show beyond a reasonable doubt that there was a systematic implementation of this policy, but the evidence precludes such a finding. First, there was no systematic practice were people were forced to marry. Mr. Sovanna will show that if it happened, it was because of rogue elements and not a nationwide policy.

Second, the prosecution argued that the scale and number and similarity of forced marriage ceremonies show that this was part of a nationwide CPK policy. This evidence was a selection that they labeled as representative, but they ignored all evidence that did not fit the Manichean narrative, including the two experts. The prosecution said there was an atmosphere of terror and coercion where people could not refuse. They failed to provide evidence of this and ignored all evidence that refuted this claim. They rely on testimony that people felt they could not refuse but they did not give more evidence as to why, but a feeling is not enough proof beyond a reasonable doubt that the environment had to have been coercive. The ICTY has held that a victim’s personal conviction must be proven with objective evidence.

Ms. Chen noted that the prosecution is well aware of absence of evidence and filled the gap with the argument that CPK created a massively coercive environment, but they failed to provide more specific evidence. Ms. Chen argued that under this prosecution theory of coercion, genuine consent would have been impossible for anyone on anything during the entire DK regime, and any action during that time would be without consent, so any labor was forced labor, any marriage was forced marriage, any sex was rape. There is no legal support for their position in this case. While some Chambers have found that sometimes consent is not possible, those Chambers have looked deep into the facts. But in this case, the prosecution was asking the Chamber to rule on a presumption of lack of consent, without factual backup.

Ms. Chen then yielded the floor to Liv Sovanna.

Mr. Sovanna first discussed the monitoring of newly married people to ensure they had sex. The prosecution argued that new couples were expected to consummate their union, and they were monitored by militiamen but defense argues that this evidence is based on assumptions, rumors, and speculation. For example, people saw that militia were outside their sleeping quarters and assumed the militia were there to monitor them having sex. In fact, in one study, 70% of 192 respondents said there was no monitoring, remaining 30% said only that they thought they were under surveillance, an Eastern zone commander testified that no one was instructed to monitor consummation.

Next, there was no evidence that there was any communication from CPK or from Nuon Chea that people need to be monitored having sex. In fact, Mr. Sovanna explained, this would run counter to the culture in the country at the time. Cambodia is conservative society, sex is taboo, and respect for elders is valued, so having young militia men monitor their elders consummating their marriage goes against culture. Mr. Sovanna posits that the militiamen were likely in the area to make sure there were no crimes being committed.

With regards to allegations of rape after marriage, Mr. Sovanna said that they were unfortunate but isolated incidents, there was no widespread or systematic pattern that demonstrates that there was an official policy. To the contrary, the CPK had an unequivocal policy criminalizing sexual violence. If people deviated from the party rules, they would have been considered rogue actors.

Mr. Sovanna said that being afraid to refuse a marriage arranged by Angkar was the exception, not the rule. Moreover, only local authorities were involved in weddings, so there was no instruction from above. The only official marriage policy was one of consent. So, if crimes were committed, then they would have been committed by local authorities acting in violation of official policy.

The prosecution said that there was a nationwide practice of forced marriage because of the similarity across zones in ceremony and occurrence, and they annexed maps and charts to the prosecution brief, but all that evidence is unreliable because (i) it is based on written records of interviews, so untested in a court; (ii) unverified sources were used; and (iii) the prosecution did not include evidence of people who said they were not forced to marry or that there was no such policy. The prosecution is asking the Chamber to find that if some people were actually forced to marry, that this establishes beyond a reasonable doubt the existence of a nationwide policy of forced marriage. Some forced marriages do not establish a nationwide policy beyond a reasonable doubt.

Lastly, Mr. Sovanna compared a forced marriage to an arranged marriage. He noted that the SCSL created the crime of forced marriage under the crimes against humanity of other inhumane acts after the civil war in Sierra Leone, when combatants would arrive in a village and pick from the women who they wanted to be their wife. They would take the women away at gunpoint, the men were usually high on drugs, there was no ceremony, women became the men’s property, the women had to satisfy the men’s sexual desires, and cook and keep the home. In this case, the situation is very different. In testimony in court, the victims all did give consent, and all said they had no choice.

However, in the early 1970s, if a woman or man were told by their parents who they had to marry, did they feel like they had a choice? They did not, it would often be unthinkable. Should that be considered a forced marriage? The point is that when people feel that they should not say no because of social pressure, this is an arranged marriage, not a forced marriage. SCSL held that while traditionally arranged marriages involved minors, forced marriage is different, and the court identified abduction, detention, and use of women for sexual and other purposes as elements of the crime. None of these characteristics are seen in our case. While there are unfortunate and gruesome stories told to this Chamber, they were the exception in comparison to the totality of who appeared in court.

Next, the alleged mistreatment was delivered by local authorities, the militia, or the husband, and there is no link with an authority higher than the local authority. Mr. Sovanna says this was because these people were acting in direct violation of the CPK consent marriage policy and the CPK prohibition on sexual crimes. The local authorities were acting independently and illegally. The prosecution is asking the Chamber to rule on arranged marriage, and to rule on Cambodian culture. And nowhere in the prosecution brief is there a reference to an official policy on forced marriage, only a theory of a practice of forced marriage resulting from population growth policy.

Mr. Sovanna reminded the Chamber that their role is to decide if an act or pattern constitutes an international crime, and if they look at state practice in 1970s around the world and in the region, and most countries would not have considered an arranged marriage a crime against humanity. Finally, there was no policy of forced marriage, and no evidence linking Nuon Chea to any forced marriage that may have occurred in DK.

Mr. Sovanna yielded the floor to Mr. Koppe, with ten minutes left in the day’s session.

Mr. Koppe said that defense has miscalculated their time and then offered the three reasons that he was not bothered about being able to speak extensively about S-21. First, there was the belief by Nuon Chea and the defense team that with it would be impossible to convince this Chamber of their arguments on S-21 because this Chamber already ruled against them in Case 002/01 against them. He said this was why he had filed a motion to replace the judges because he did not believe that they could judge Case 002/02 without bias. Second, all the arguments with regard to the defense position on S-21 are in the defense’s final brief, and he urged the Chamber to have the brief translated into Khmer so that the national judges could read the defense arguments. Third, “the level of the prosecution’s case with respect of S-21 never really passed the level of an average tour guide in Tuol Sleng Museum.”

Lastly, Mr. Koppe reminded the Chamber and prosecution of a statement in the prosecution request to adjust the schedule for closing briefs and final arguments, in which the prosecution says that there are substantial page limits for the closing briefs, and so the oral arguments are not to review information found in the briefs but to respond to the other party briefs. Mr. Koppe urged the prosecution to respond to the defense case’s novel arguments, e.g., regarding the structure of S-21, that Nuon Chea was not in charge of S-21. And with that, and a final expression of disappointment in the prosecution, Mr. Koppe concluded his remarks.

Judge Nonn adjourned until tomorrow at 9 a.m., when we’ll hear Khieu Samphan’s closing argument.