Questioning the Court, and Their Own Role, Khieu Samphan’s Team Argues in His Defense

At 9 a.m. the judges filed in to the courtroom, and the sixth day of closing arguments began.

Judge Nil Nonn called on the Greffier, who confirmed that all parties were present except National Civil Party Lead Co-Lawyer Pich Ang, who is absent for the morning sessions, and Nuon Chea, who has waived his right to be present in the courtroom today due to medical reasons, and is following today’s proceedings remotely.

Today, the Khieu Samphan defense team will begin their closing statements.

Defense Co-Lawyer Anta Guissé began:

“Mr. President, Your Honors, Mr. Khieu Samphan is going die in jail. He’s going to die in jail, and he knows that. His Defense knows that, as well. You know it, as well. The prosecution as well as the civil parties know it, too. Especially the donors who financed this court know it, as well. Mission accomplished.”

Ms. Guissé went on to say that the objective of this historic trial was sentencing Khieu Samphan to life, that the Supreme Court Chamber (SCC) has upheld the Case 002/01 sentence on appeal, and the Chamber’s mission today is to sentence him to life again. She noted the lack of VIP attendees in the gallery this morning in comparison to Khieu Samphan’s first trial, and noted perhaps this case may seem less interesting than the first. Still, the symbol of sentencing the DK and CPK has been completed.

Then Ms. Guissé got to her real point, stating that since the trial is coming to a close, and there will be no further case, is there a reason to be happy or satisfied with what happened in this courtroom during this trial? And did the ECCC live up to the task before it?

She posited that the truth was that this was a trial whose outcome is already known, and asked, if the truth is that this trial was so biased, can we take this trial as a model for the world and for Cambodia in particular? She noted the ongoing discussions about the legal legacy of the ECCC, and wondered, what questions will be asked about that legacy after this trial, when the world reviews what remains of the principles of law and procedure that were argued before this court? She knows that people wonder why defense makes so much of issues of trial and procedure, and that these issues are not always the primary focus of the public or this Chamber or the SCC.

The challenge to the Chamber is to answer what the principle of legality will be in the face of the crimes alleged and the suffering of the people. And Ms. Guissé recognized the nerve of the Khmer Rouge to insist on a fair trial, considering the state of fair trial in the DK.

Unsurprisingly, Ms. Guissé had the answers for her questions to the Chamber, and, like Defense counsel for Nuon Chea, she did not hold back in her reminders, admonishments, and requests for a fair trial to the Chamber, prosecution, and civil parties.

First, she noted that a fair trial is about much more than being represented by lawyers in robes in a courtroom. A fair trial is about fair procedure and law, above all. Next, she reminded the Chamber and her fellow counselors that she, and all the counsel, are legal professionals, and that as jurists, they know that law must mean something in this courtroom. Speaking about fundamental issues should be fundamental in this courtroom.

She acknowledged that law is complex and complicated, it can be dry, it needs to be dissected, and this trial is happening 40 years after the facts that occurred. Law that existed then was not as developed as it is today and poses a particular challenge to all parties and to the Chamber. Ms. Guissé noted that while law might not be so sexy, it is law that is the face of the legitimacy of the Chamber, and of the ECCC, as a judicial institution. And the role of the Chamber and the lawyers is to contribute as much as possible to the work of justice. The Extraordinary Chambers were borne out of the law, and it is the same law that must be applied in this case.

Ms. Guissé noted that so much liberty had been taken in this courtroom that legal procedure seemed optional and speaking about the law was a strange thing to do.

Next, Ms. Guissé noted that the prosecution has the burden of proving the facts beyond a reasonable doubt. She echoed Mr. Koppe’s disappointment in the prosecution’s oral argument, and said she had hoped for something other than a “super-document hearing.” In addition, she was disappointed to not see one mention by the prosecution of the contradictions to their case that were raised in the courtroom or in the defense briefings. It was as if there was no judgment deciding Case 002/01, as if there were no cross-examinations of witnesses or civil parties or experts.

Ms. Guissé explained that, because the prosecution had, themselves, stated that oral arguments were for responses to the parties’ briefs, and because the parties file their final briefs at the same time, oral arguments are the only time when there can be real debate of the issues. Ms. Guissé interpreted the prosecution’s refusal to debate as a display of arrogance, the arrogance of believing that they do not need to prove their case, as if the onus of the burden of proof had shifted to the defendants. She said that they presented their case as though it will necessarily succeed.

The next question posed, and answered, was what is the role of defense in a trial where everything is decided in advance? Ms. Guissé said that defense role is to recall what the law is, what the rules are, what the Chamber may do and not do, what the prosecution may do, and not do. What defense will do in this case, even if they have no illusions as to the upcoming verdict, is to do what the prosecution should have done. And that is selecting the right facts that belong in this trial. A selection that the prosecution avoided doing because they presented their brief as they presented their submissions – by starting with liability, which assumes the guilt of both Accused, rather than the facts of which the Chamber is seized, the elements of crimes, and building a case to criminal liability.

Ms. Guissé then discussed the first question that the Chamber must answer at the beginning of a trial, which is to determine which facts the Chamber is seized of, then, in view of those facts, to discuss legal characterization of those facts.

The first fact that Ms. Guissé highlighted is the fact that Khieu Samphan is not being tried for all the facts that happened in Cambodia between 1975 and 1979. She highlighted this as it was not clear to her from the prosecution’s brief. She noted that in accordance with the rules of the ECCC, the closing order of which this Chamber is seized limited the time and geographic locations for the case, which applies to every party. She opined that the Chamber, the civil parties, and the prosecution want to sentence a regime so badly that they have forgotten what the actual facts and crimes alleged are in this case. She reminded the Chamber that a criminal trial is about the thorough application of the law to facts, even with the gravity of the crimes before the Chamber.

In order to illustrate the problems that came up in this trial, Ms. Guissé cited to jurisprudence from ICTY, in the Prlic judgment, in which the Chamber said that a criminal trial cannot fully satisfy the needs of history, but that its role is to rule on the criminal liability on the basis of facts and allegations, which is what this Chamber must do in this case.

In international criminal law, where justice seems to be created to satisfy the international community, when we speak about the struggle against impunity, only the prosecution’s role is to fight against impunity. The role of the Chamber is to judge without bias and to ensure that the law is properly applied.

Ms. Guissé recalled the foundation of a criminal trial, in which the first task is to understand the charges levelled against the defendant, nothing more and nothing less. In the ECCC, and in Cambodian and French law, the scope of a criminal trial is determined by the prosecution, who file an introductory submission. Then the Co-Investigating Judges (CIJs) are seized only of the facts in those submissions, and they are tasked with starting a trial on the basis of only these facts.

The Chamber is seized of facts, not legal characterization. So, the CIJs may say that there was a murder, but it is on the basis of facts. If the Chamber wishes to recharacterize facts, they must warn the defendants so that they can adequately prepare a response. In addition, the Chamber must not introduce new facts.

Ms. Guissé explained that she offered this reminder because, during this trial, the prosecution and civil parties wanted this Chamber to rule on facts of which this Chamber was not seized, and to which the defendants must not answer. It is true that the closing order in this case is a jumble of facts, and that there is a certain process that we must follow to not go beyond the scope of the closing order. It is a pity the prosecution did not organize these facts, but they were the only party that knew the all facts from the beginning, as it was the prosecution who determined the scope of the charges with an introductory submission. The prosecution’s failure to organize the facts may be a way to hide that they, and sometimes the civil parties, want this Chamber to improperly recharacterize and add facts to the closing order.

Ms. Guissé next offered a couple of examples of reliance on facts and/or instances of recharacterization of facts from the prosecutor and civil party briefs. She noted that, in not organizing the material better, the prosecution is also asking the Chamber to do the prosecution’s job, which is to do the triage by determining which facts apply to which charge or legal characterization. And Ms. Guissé repeated to the Chamber, that the only accusations that are retained in the closing order are facts that seize the chamber, and the prosecution determined the scope, defined the accusation, and they have the burden of proof, which involves much more than just providing a massive document to the Chamber and saying there you go, use the facts willy-nilly, but just find a guilty verdict for the Accused.

The closing order is a massive, complex document. The Chamber, however, does not have the mandate of historians, but the mandate of judges. Nor does the prosecution have a mandate of historians. So, Ms. Guissé stated, the original sin in this case goes back to the investigation, because, as CIJ Marcel Lemonde said, at the time, that in the closing order, “facts were brought up that were undoubtedly not absolutely indispensable, but which seemed important for the case and which the closing order would remain the only trace left by this court of what happened in Cambodia” between 1975 and 1979.

Ms. Guissé maintains that the prosecution should have been even more vigilant. There is a method or path to be followed when moving through this closing order for a criminal trial and not a historical document. She emphasized that it is only the material facts that can provide the basis for criminal responsibility for the defendants. The Chamber and the parties need to get to the core of the facts, to determine what are the relevant facts, and what the Chamber is allowed to rely upon for its deliberations.

The closing order contains facts that were identified previously in the prosecution submission and supplementary submissions. During the investigation, there were CIJs who investigated on facts they were not seized of, and of which the Chamber was consequently irregularly seized. This is not a defense opinion, rather it is represented in ECCC Internal Rule 55.2, which states that the investigating judges are meant to only investigate those facts in the prosecution’s introductory and supplementary submissions. This principle also appears in Cambodian law, and a French appeals court ruled in 1962 that a court can only rule on the facts that sent the case to trial, because the accused have a right to answer those facts.

Throughout this trial, defense have seen incomprehensible decisions, despite defense objections.

One general example of this is the Chamber’s decision to rule on whether the Khmer Krom are to be considered part of the Vietnamese group for the allegation of persecution of the Vietnamese, even though the Chamber cannot rule on facts of which you are not seized, and this Chamber was not seized of the treatment of the Khmer Krom. This example illustrates all of the issues defense has seen before this court.

First, the prosecution and civil parties are trying to have the Chamber look at what the Khmer Krom suffered as a group by assimilating these people into the group of the Vietnamese. In their brief, the prosecution refers to the Khmer Krom continuously throughout (Ms. Guissé cited at least 10 instances) which is making reference to facts that the Chamber is not seized of. The civil parties were a more subtle, but also refer, once, to the Khmer Krom in their brief.

Defense anticipated this in their brief, and they explained that the Chamber is not seized of the Khmer Krom as a group. The prosecution knows this, and they are trying to introduce these facts on the Khmer Krom through their written statements and facts from Case 004. The accusations in this case do not concern the Khmer Krom. The prosecution could have asked in their introductory or supplementary submissions to include the Khmer Krom in the investigations, but they did not.

Next, OCIJ decided in 2010 that they were seized of facts of Vietnamese living in DK in certain areas, including incursions into Vietnam, but not crimes related to Khmer Krom. They rejected the all of the prosecution requests to act on additional facts not in the submissions.

In 2010, the PTC confirmed that the Khmer Krom are not in this trial, but the prosecution argued that they needed the evidence on the Khmer Krom to prove the persecution of the Vietnamese. The PTC judges said that the PTC does not have the right to go back after the fact to re-determine the scope of the investigation, and the prosecution does not have that right either.

Ms. Guissé noted that in four briefs from four parties, no one has the same set of charges against the Accused. And that means there is a problem from the very beginning. Ms. Guissé said that Chamber needs to be vigilant about what the starting point of the case is, what the original submissions of the prosecution were. And even if other facts are mentioned, the Accused can only be judged on the facts that the Chamber is seized of.

Going back to the Khmer Krom, at the beginning of this evidentiary trial, the prosecution did not hesitate to demonstrate that the Khmer Krom were targeted, which was incomprehensible to defense as those facts are not in the scope of this case. Apparently, it was not clear to the Chamber, because the Chamber said would need to rule on this later, as it needed to decide whether it was persecution of the Vietnamese or those perceived to be Vietnamese.

Following that, this Chamber rendered another decision and said that the question of the treatment of the Khmer Krom as a specific group was not what the Chamber was seized of. The reason to discuss this at length is that despite three decisions, by the CIJs, the PTC, and this Chamber, the prosecution has continued to ask you to rule on the issues related to the Khmer Krom.

The Khieu Samphan defense team requested that the Chamber ensure that the Khmer Krom are not in the scope of the decision in Case 002/02.

Ms. Guissé then discussed the issue of the rapes outside the context of marriage. The chronology of this issue was that first, there was an introductory submission in 2007 of rapes in one location. No other facts were added locally, and, in 2009, another submission of forced marriage. In 2010, the closing order was issued and case sent to trial.

Ms. Guissé stated that OCIJ had investigated illegally the rapes allegation, but the CIJs concluded that there wasn’t rape at the location listed or elsewhere, and that CPK’s policy was to prohibit rape, so if there were rapes during the DK, they were not a part of the CPK policy. The prosecution chose not to appeal this decision. Ms. Guissé noted that in the scope of the investigation, only the prosecution can appeal, that the defense cannot appeal on issues related to principles of law.

The CIJs did not include rape outside the context of marriage in the charges in the closing order, and the Chamber is not seized of rape outside the context of marriage, and in spite of this, in this Chamber’s judgement on Case 002/01, this Chamber brought up facts of rape outside the context of marriage in multiple paragraphs in the decision.

The civil parties appealed and SCC validated that you are not seized of cases of rape outside the context marriage. From the perspective of the prosecution and civil parties, you are hearing facts of rapes outside marriage, for example, in the civil parties’ final brief, there are more than five footnotes where rapes are mentioned, and they are listed as part of the charges. The prosecution makes two separate mentions of rapes outside the context of marriage in its final brief in this case. In this Chamber’s decision before the SCC, it was very clear that these are not included, and so if rapes did not take place in the context of the consummation of marriage, you cannot consider this evidence.

In a French court, if you are told that you are not seized of rape, you can recharacterize it, perhaps it is torture. And since there is a legal characterization of torture in the closing order, then why not put rape into torture? Ms. Guissé elaborated that this was why she had said that the Chamber is seized of facts, and not of legal characterization. The proper procedure is not to say, as the prosecution does, that these facts are interesting and let’s include them in the whole package because it will help you convict the Accused.

Ms. Guissé added that there is also the matter of the facts that have been excluded from Case 002/02 after the severance of Case 002. To this end, the prosecution is attempting to try facts that occurred in Vietnam’s territory. They claim that it is important to discuss the incursions into Vietnamese territory because they are necessary to understand the genocidal intent of the Accused. In 2013, the prosecution asked this Chamber to remove the incursions from the scope of Case 002/02, which they proposed in the discussion of the severance of Case 002, claiming that these allegations regard facts that are distinct or independent and not related to the alleged persecution of Vietnam in DK. Ms. Guissé said that the prosecution wanted these out, but now they want them in to understand the genocidal intent of the defendants, and “it’s too much.”

Ms. Guissé continued with a discussion about the law and procedure at the ECCC. One of the difficulties defense noted in the final brief was that ECCC procedure does not allow the defendant to appeal the final closing order, rather, only the prosecution may appeal all decisions coming from the CIJs. This is supported by the internal rules and the PTC issued two decisions about the subject.

The first decision brings up the issue of limitations to the defendant’s appeal powers, and the PTC ruled that any grievances with regard to defects are not challenges of jurisdiction per Internal Rule 743. The PTC upheld this position following an appeal by Ieng Sary against a closing order, which explained the appeal was not admissible but grievances could be expressed, so PTC accepted preliminary objections.

Then a new submission was made by Ieng Sary that was linked to parts of the closing order that were null and void. In this submission, Ieng Sary raised the issues of national crimes and the crime of deportation. The prosecution said the Ieng Sary request was inadmissible as there no provisions for the defense to appeal the closing order if not with regard to the principle of legality. PTC partially admitted Ieng Sary’s admission by distinguishing between preliminary objections and the second submission that Ieng Sary filed subsequently.

With regard to the issue of national crimes and deportation, this Chamber decided that it was not seized on a regular basis of crimes under the Cambodia Criminal Code of 1956 (national crimes) and that the defendants should not be tried for crimes under this Code, and so you partially admitted Ieng Sary’s request.

Ms. Guissé offered this as a reminder to the Chamber that it had settled Ieng Sary’s issue with regard to Ieng Sary’s submission after preliminary objections. This is important because in this request, Ieng Sary brought up national crimes and deportation, and this Chamber did not rule on the crime of deportation. There are many things in the closing order that go beyond the charges of the CIJs. If the CIJs talked about these facts elsewhere then they were not normally seized of them. It was the PTC who said that defense can raise a point of substance, and it was on this decision that Ieng Sary raised the question of national crimes and deportation. The internal rules do envisage that the CIJs can only investigate on charges in the initial or supplementary submissions.

In preparing for trial Case 002/02, the Chamber asked Defense and the parties to submit briefs on the issue of deportation, which had not yet been settled. Defense submitted saying that these issues of deportation crimes needed to be set aside because the CIJS had drawn factual conclusions and legal conclusions on facts even though they were not in any of the prosecution submissions to the OCIJ. Defense was surprised to see that the Chamber’s decision was that it was too late for Defense to raise this argument. (Ms. Guissé reminded the Chamber of another problem in their decision where they say it is too late, but yet they partially had admitted Ieng Sary’s appeal.)

The issue is that if the PTC says that defense cannot raise substantive points in the context of an appeal to a closing order and this Chamber said it is too late for defense to raise substantive points during the substance portion of the proceedings, this is a circular argument, no chamber is making a decision and it violates the Accused’s right to a fair trial.

A court of appeals in France had a similar case in 2012 and responded specifically to this question. The French court of appeals said where there is a closing order without a possibility of appeal (as in the ECCC), if under the procedural code the closing order should be definitive in covering procedural defects, then it cannot cover its own procedural defects. On the other hand, the investigating judge can only judge a person who is accused of certain charges on the basis of the facts of which he is seized. Then the person who is sent to trial can obtain from the jurisdiction of the judgement if the allegations are upheld. This has to be done in such a way that he has effective recourse to justice.

Defense requests that when the CIJs have gone outside the scope of the closing order, that Defense can ask the Chamber to make a ruling, as in the case of the deportation crimes. This goes to the heart of a fair trial, and the defense will find itself in a difficult position if the Chamber does not decide this. As the French appeals chamber says, the only way to handle this is for this Chamber to make a decision on the crime of deportation and all the facts, that the CIJs did not have right to investigate or draw conclusions because these were not in the prosecution submissions to the closing order.

When there is a doubt in procedural issues, this Chamber would have the tools to determine what is within the scope the court is seized of. Defense asked the Chamber to set aside the out of scope information mentioned in the prosecution and civil parties closing briefs. In short, defense asks the Chamber to apply the law and rules of an equitable trial.

Aside from CIJs going outside the scope of the closing order, defense also requests that the Chamber set aside all the evidence that is outside the closing order. Defense reviewed the evidence for every crime and site envisaged to help the Chamber determine the original scope and whether the material is within or without the scope.

Ms. Guissé next discussed evidence and proof.

She said that in their brief, the prosecution does not distinguish between the types of evidence, such as hearsay or direct witness, or different types of documents. The SCC decision is nothing new, but reiterated principles that already existed, but neither prosecution nor the civil parties nor this Chamber have respected these rules of evidence. For example, they rely on a written statement of Im Chaem that referred to the acts of Khieu Samphan. There was a decision made that this could not be used because there was no opportunity for defense to test the facts. In this case, Im Chaem is not deceased, and he was not even asked to appear before this Chamber. So, Ms. Guissé asked, on what basis can prosecution cite this evidence?

Another challenge is using Henri Locard’s statements on Khieu Samphan, as if Mr. Locard was an authority on the question. Ms. Guissé reminded the Chamber that defense is still waiting for the specific recordings that affirm what Mr. Locard testified to, and as of now, his testimony is hearsay. Experts are not meant to testify on conduct or acts of the Accused. The SCC agreed on this. Also, the civil parties have mentioned statements relating to acts and conduct of Khieu Samphan. The civil parties say they can use these statements and the only restriction is if they are the sole basis for this Chamber’s conclusion, and that is not true. Written statement relating to the acts and conduct of the Accused simply cannot be used. Civil parties cite to someone so egregious that even the prosecution did not dare cite to him in their closing brief. The elementary rule of procedural law is that the culpability of the Accused must be proved beyond a reasonable doubt, it is not, as prosecution said, that the Accused couldn’t not have known, the prosecution has to say he knew, and here is the reliable and credible proof.

Next, Ms. Guissé discussed contradictions that could have occurred due to the passage of time. She said that there is an idea that there is the main thing, and then there are the accessory features. She wants to know what will this Chamber determine is the main thing – is the main thing all inculpatory evidence and the secondary is exculpatory? She said that the only rule is whether the testimony is valid enough to prove culpability beyond a reasonable doubt.

Ms. Guissé noted that in the civil parties’ brief, they say that there can be variations in statements of civil parties because statements made early on only had one closing order and did not know what charges were yet. This argument worries Ms. Guissé because it says the civil parties were meant to adjust their stories according to what the charges are. The closing order contained several conclusions that were based on civil parties’ evidence, so this is not a viable argument by the civil parties.

Ms. Guissé noted “an extraordinary phenomenon” that in two days of arguments, the prosecutors did not once say the words “armed conflict”, as if it were a secondary issue. But the prosecution asked this Chamber to condemn Khieu Samphan to life in prison for violating the Geneva conventions, but without a discussion armed conflict (unless the intent was to discuss incursions into Vietnam which are out of scope).

Defense discussed armed conflict at length in their brief, because the prosecution discussed the language that defendants used in speeches against Vietnamese but without ever stating there was an armed conflict with Vietnam. Ms. Guissé said that it is a minimum of intellectual rigor to put things in their context, and that there is no way to understand speeches containing strong language if there is no discussion of the recent incursion into Cambodia by Vietnam.

The challenge in this case is that the trial is occurring long after the facts, and the Chamber and parties have to do mental gymnastics to figure out what the law was at the time. This is important because it indicates what risks the Accused knew they were taking with their behavior at the time. This principle of law is the very elementary basis of procedural law, and any deviation must respect the principle of legality.

With regard to the SCC decision in Case 002/1, Ms. Guissé stated that what is clear is for the crimes the Chamber will need to rule on and the modes of accountability that apply, the Chamber must apply the law as it existed at the time, including customary international law at the time. The reason Ms. Guissé raised this point is because the prosecution is doing everything upside down and contrary to the principle of legality. First, they said liability existed under international law, and then they define what the crime is. And what should happen is to discuss first what the crimes were back then, and then to see how to apply the law. This is so clear that the ECCC acknowledged this principle of legality. The most blatant example of this is the ECCC’s handling of joint criminal enterprise (JCE), where there are three forms and JCE form 3 was excluded from this trial because it did not exist from 1975 to 1979.

In order to know if it existed at that time, it was necessary to dissect the definition to see if it was foreseeable and accessible to the defendants at the time. While the ECCC acknowledged this reality, the SCC gutted the principle of legality of its substance in its appeal in Case 002/01, but it did do a good job in Case 001, where it said that the viability of the jurisprudential legacy of tribunals will depend on the drafters’ ability to base their decision on a set of pre-existing rules, and where it stated that the law at the time of the act must apply and that it must be foreseeable and accessible to the defendants.

The Duch decision was clear and sharp, and the SCC explained that there had to be a careful assessment of these criteria to guarantee the legitimacy of the ECCC. Then came the Case 002/01 judgement and everything crumbled, and either to legal advocacy or pressure to not acquit. The SCC retained the crime of murder with dolus eventualis, which means it was possible to commit the crime of murder without having at the onset the intent of committing the crime of murder. Dolus eventualis is a lesser intent than the intent to kill in order to find culpability in movement of people for the deaths, as no one really intended to kill the people who died. The SCC recalled its decision in Case 001 where it said that to comply with the principle of legality, the first condition was that the definition of the constitutive elements of the crime and modes of participation had to be foreseeable and accessible; and the second condition was that judges could rely on domestic law to establish that the Accused could reasonably know that the crime at hand was forbidden.

This went out the window in Case 002, where it is important to convict, so they were trying to come up with a way to define murder with a lower intent, so that they could uphold this Chamber’s decision. This Chamber based its decision post facto jurisprudence, as you based your decision on ICTY and ICTR jurisprudence to speak about a lower intent than the intent to kill. But a lower intent for murder did not exist. The SCC could not logically speaking and in the face of the world base itself on posterior jurisprudence, so it interpreted in bizarre way and based its decision on Nuremberg jurisprudence to find a lower intent than the intent to kill. It found that we can be condemned for murder even if we did not intend to kill by relying on the argument that maybe it is possible that the doctors in the death camps in World War II did not have the intent to kill. Ms. Guissé said that she was completely flabbergasted at this legal reasoning.

She went on to ask if this is a reason to be proud? That the SCC said that in death camps it was possible to not have the intent to kill, just to save a conviction of murder in your decision, so that Khieu Samphan can be sentenced for life. No one focused on the issue of the legal motivations that allowed this decision. This not the legacy for the ECCC that Ms. Guissé would want.

There is a mode of operating by the prosecution where they are trying to reduce the level of intent for crimes. For example, for the crime against humanity of other inhumane acts, the explanations offered by prosecution in final brief provide blatant excesses. They say that other inhumane acts can be defined by the nature of act, caused deliberately, that causes great suffering, and with intent to cause great harm. What the PTC said on other inhumane acts is that it is an issue of law and an issue of fact.

Contrary to the proper recommendations of the SCC, the prosecution is using posterior definitions on which to base their argument. The SCC said that the use of definitions of crimes against humanity that were distinct and posterior were anachronistic and not founded in law, specifically for forced disappearance and population transfer. The prosecution is providing this Chamber with posterior definitions, and not contemporaneous definitions, for forced transfer, forced disappearance, forced marriage and rape, and attacks against human dignity.

Ms. Guissé, then asked, where is the principle of legality? It is out the window.

Regarding the crime against humanity of rape and other inhumane acts, the prosecution proposed to this Chamber their own definition because they say that the ICC definition is too restrictive. Their job is to examine the degree of gravity back then, but they are asking this Chamber to apply their definition from 2017.

The civil parties are more legalistic and more grounded in legality. Ms. Guissé acknowledged the logic in what Marie Guiraud said constituted other inhumane acts in 1975 to 1979: (i) identify an articulation between a law and prohibitions, and (ii) analysis of the degree of gravity of other crimes against humanity listed elsewhere, in international conventions, for example. This corresponds to defense analysis in the final brief but with regard to the application defense does not necessarily agree on the process that was followed.

The existence of more specific standards, posterior standards, does not determine in itself the compliance with the principle of legality. The Chamber must follow this with regard to forced marriage as the crime of forced marriage as defined posteriorly was never established as a distinct crime against humanity but in as an other inhumane act. We discuss forced marriage as defined by SCSL in 2008, so will be very difficult to apply this to our current case, and the civil parties acknowledge that the crime of forced marriage at ECCC and SCSL are different. It is not possible to consider the SCSL definition because the prosecution and civil parties do not demonstrate that the behavior charged reach the gravity of murder, extermination, enslavement, deportation, imprisonment, torture, or persecution for political grounds.

The stammerings with regard to forced marriage prove that back then, forced marriage was not considered illegal. It is clear that the appeal chamber of SCSL used the case to develop the forced marriage jurisprudence, and it is even clearer that it did not exist in 1975.

The prosecution said that “forced marriage was maybe not the worst crime that occurred in DK, but was a fundamental violation of the right to freedom” and this does not rise to the level of a crime against humanity. The Popovic judgement of ICTY stated “The trial chamber correctly stated that not every denial of human right is serious enough to constitute a crime against humanity.”

Most of us in this courtroom believe in law and believe that developments are necessary, but with regard to forced marriage, the first time there was a discussion of forced marriage in courts was 2008, therefore there is no forced marriage as other inhuman acts in crimes against humanity.

Next, Kong Sam Onn will speak of the regulation of marriage in factual terms and what conclusion we drew from this, and it will make it impossible for this Chamber to convict, legally it was not a crime that rose to a crime against humanity, and the factual allegations do not support it.

Ms. Guissé yielded the floor to Mr. Kong Sam Onn.

Regulation of marriage

Mr. Onn stated that first, there is no law that is applicable to convict Khieu Samphan as he is charged with other inhumane acts as part of crimes against humanity. Forced marriage is not a crime in the national law, nor was it applicable of 1975-1979. In Cambodia, only in 2005 were two laws enacted, one was against domestic violence. The presentation of the prosecution relies on this point, the violence. But while individual rapes occurred, it was not systematic rape.

Mr. Onn next quoted the prosecution when they said that it was not the absence of love that made forced marriage a crime, nor the attendance or lack of attendance of parents, but that forced marriage became a crime when the state played the role in choosing the spouse and forced the people to marry the spouse or punish them severely if they refused to do so, and punished them if they did not consummate marriage, which caused them harm if they did not so.

Mr. Onn said that the elements in the prosecution definition are: first, partner, second, choice of partner, third, punishment for refusal to marry, fourth, forced consummation. He asked if Khieu Samphan is responsible for all four of these elements, and will cover these points in detail.

Mr. Onn said that the Chamber must turn its attention to the evidence before it on marriage. Khieu Samphan has been charged with the crime against humanity of inhumane other acts of forced marriage on a nationwide basis. Mr. Onn said that not only will the law not allow the Chamber to enter a conviction, but the evidence before the Chamber does not support the conclusion that there was a CPK policy to enforce forced marriages.

In his preliminary remarks, Mr. Onn stated that forced marriage was the most mentioned issues in this Case 002/02 trial as most of the people who testified were questioned on the subject, and a large number of written statements were placed in the case file. The particularity of the testimony of the civil parties is called into question, however. By definition, civil parties consider themselves victims of acts that are part the trial, they fill out an application with or without the help of an NGO, and have an interest in the proceedings. Mr. Onn said this was not to say that civil party testimony is misleading, but to acknowledge the bias, and the need to establish the credibility and reliability of their testimony. In addition, they have collective representation, which may affect their testimony, and they do not take an oath.

The question of the reliability of civil party testimony having evolved over the time is all the more important in that for some of them, their statements have evolved over time with the additions of elements which, and Mr. Onn said this cannot be by chance, always go in the direction of including more incriminating elements. Mr. Onn cited a civil party who had never mentioned her meeting with Khieu Samphan, but in a late submission remembered the meeting before her marriage. This example raises the question of the reliability of the civil party more generally. Additionally, there is a great difference of experience and of the perception of the witnesses who mentioned the marriages and the civil parties specially summoned to testify on their forced marriage, who were selected for their particularly difficult experience though this may not reflect the general experience of people during the DK.

Large numbers of civil parties systematically referred to the need to produce children for Angkar, sometimes in contradiction to other witness testimony. When asked directly they said they had not been instructed to make children for Angkar. Mr. Onn listed more than five witnesses who supported this. It is therefore reasonable to ask about the representativeness of civil party accounts and national marriage regulations.

Regarding the testimony in 002/02, the issue is not to question civil parties who testified, but to put their experience in a broader perspective. Twenty-two civil parties said they were married in DK; six said they were forced to marry (from various zones). Conversely twelve people expressly stated they were not forced to marry during DK. The disparity of experience does not correspond to a zone logic, which has been presented by the experts, that there might have been forced marriage at certain levels. This casts doubt on the existence of a state or nationwide policy.

Two experts testified to the findings of their research on marriage in DK, Nakagawa and Levine. They said that marriage in Khmer tradition was something Cambodians already knew. First, the decision to marry is independent of the will of the bride or groom, and the nature of the traditional Khmer marriage is truly a collective and not an individual issue. It was a family matter between two families, where there is a contract between two families and the bride and groom’s consent is not critical and often ignored. Having affection for one’s spouse was way of honoring the choice of the parents in the marriage, and not the basis of the marriage. As Cambodians who understand this tradition, we know that individual consent alone was not the foundation of marriage. It is an essential element that one must make comparison with marriage and DK.

Regarding the nature of consent in a traditional Khmer marriage, Mr. Onn said that children are withdrawn from the process and they follow the parents’ guidance. Mr. Onn gave several examples of civil parties who had been married by the decision of her parents. Consent of future spouses was not at the center of the traditional Khmer marriage. Nakagawa testified that the girl expected the parents to make the decision of her marriage and accepted blindly on the basis of her parents making the best decision.

On the refusal of marriage, Mr. Onn stated that no opposition was allowed to the parental decision of future spouses. Children were considered to be property of their parents, they did not have full rights, and parents made decisions on education and marriage, the children’s whole life was decided by the parents. As for the boys, they also had to comply with his parents’ choice. Nakagawa has not heard of a boy refusing his parents’ choice and that very few even proposed a choice. There is also a code of conduct for Cambodian girls and women that requires submission and acceptance of the husband, which sheds some light on the circumstances during the DK.

With regard to conjugal duty, it is an important cultural issue. The issue of rape between spouses is difficult to conceive of, even today, and has only been introduced into Cambodian law in 2005. And before then very few cases came before courts. Nakagawa confirmed the existence of marital rape. Mr. Onn stated that marital rape did not exist in the 1970s, and this idea did not enter the Cambodian consciousness until recently. Certain behaviors are more the result of cultural conceptions than an alleged policy of the CPK, which is important in the analysis of the evidence.

The common opinion about DK is to claim that everything was abolished to create new rules at all levels of society. Yet the analysis of marriage shows similarities with the practice prior to DK.

Mr. Onn reviewed the marriage policy during the CPK, which was a consent based marriage policy. The consent of both spouses and consent of collective were required to make a valid marriage. There was also minimum age for girls to marry. Mr. Onn referred to different witnesses who testified in support of this. The principles of the CPK were known long before 1975, not just when marriages began to be celebrated. Next, Mr. Onn cited to witness testimony that highlighted the difference between the CPK principles and the various implementation or understanding of the principles that could and did happen. Mr. Onn stated that this evidence shows that in the case of forced marriage, if there was any breach of CPK principles or CPK policy, then that was an individual’s misapplication of the CPK marriage regulation, and it was not a state policy.

Next, Mr. Onn discussed the expression of consent alleged at forced marriage ceremonies. He noted that there was a diversity of cases and no uniformity of experience across those who participated. Those who had knowledge of CPK regulation could refuse the marriage, and on this point, he noted that those who had more knowledge of CPK principles could feel more free to refuse, and gave examples of witness testimony in support of this.

Mr. Onn discussed the role of authorities and choice of spouses, and specifically the concept of the transfer of parent role to Angkar. There was a distinction between forced marriages and authorized marriages – Nakagawa said a forced marriage was where at least one spouse did not consent, and parents could give consent for their child. Several witnesses confirmed that parents did participate in the marriages.

Mr. Onn noted that the majority of couples stayed with their spouse after they married during the DK. Regarding the alleged coercive circumstance, some witnesses stated that the refusal to consummate the marriage could lead to re-education, but much of this testimony was hearsay or assumptions.

Marriage in Cambodia was not an institution founded on the will of two people, but between two families for the good of the whole group. Questioning parental authority was not allowed. If cadres took over the parental role, then refusal was equally impossible. The principle of consent by the CPK was different from traditional Khmer marriages in that consent by both spouses was required.

Levine’s study reported on the use of the term forced – she noted that the vast majority of couples in her research sample had never considered their marriage to be forced until the idea that marriages arranged under the Khmer Rouge were qualified as such. She said that less than 10% of her sample was married under the fear of violence, but none had been subjected to violence.

On consummation of marriage, the CIJs had shown that people had put in place a population policy, with militiamen to enforce the consummation, but the evidence does not support the conclusion. According to an expert, consummating the marriage to produce children was a tradition, but there was no sex education before 1975, women were sometimes told to be submissive to the husband, and it was expected that women would be pregnant not long after marriage.

With regards to the militia, the presence is reported, but there is no instruction to or from the militia leadership that can corroborate whether militia men were instructed to monitor new couples for consummation or not. Mr. Onn said that many couples did not distinguish between monitoring for consummation and general locality monitoring. Mr. Onn cited several witnesses who gave testimony in support of this.

If there was monitoring, then it was an individual decision by a local authority. Duch gave an example of an immoral cadre being punished for monitoring consummation, and being required to apologize to the couple.

Regarding factual allegation on forced marriage and rape, there is no basis for convicting my client.

Mr. Onn yielded the floor to Ms. Anta Guissé, who continued the defense arguments.

Ms. Guissé returned to an important theme, which is the existence of an armed conflict. She noted that in this case armed conflict has been neglected, including its effect on the facts. The two defenses wanted to start the trial with a discussion of armed conflict, and it was not discussed until the end. Armed conflict is a necessary preliminary element, as she discussed its sources, origins, and chronology earlier. The chronology is important because it puts facts in context.

Ms. Guissé gave the background to the defense position on armed conflict. When there are facts that occurred a long time ago, we need to know what happened in each year until the Vietnamese arrived in 1979. We also need to know the geopolitical context of what was happening at the time. The prosecution did not remind us that the Cold War was in full swing. Defense had key documents presentations on armed conflict, on cooperatives, etc. The key documents presentations discussed all the elements of armed conflict. Ms. Guissé said that the conflict between the Vietnamese and its allies in Cambodian territory, when the Vietnamese invaded they were the winners. And Vietnam and its allies had complete control of all the documents and they had control of the communications network. We often forget to say that the destruction of documents did not necessarily happen during DK regime or after end of it. Ms. Guissé cited to witnesses who described that they received orders to destroy archives from the new local authorities. So, the evidence shows that the destruction was not necessarily caused by the CPK.

The other element to underscore the importance of chronology is that, for a long time, armed conflict was only analyzed on the basis of Vietnamese or Soviet archives. This means that the Chamber is presented with a rather unilateral version of events. Defense now has on the case file documents that scholars had never seen or commented on before. Ms. Guissé said that it was a pity that throughout the proceedings, the prosecution only followed the linear and unilateral version of the conflict from the Vietnamese, and the only armed conflict they refer to is out of scope of facts of the case. Ms. Guissé said that there are two sides, and the side of the DK is important. It has not been heard much and it is important to raise this because there are positions that are taken out of context and become meaningless if we do not know what happened on the borders or the military front.

For example, the warmongering aspirations of the DK does not stand on the evidence. To begin with, the Nuon Chea team also spoke about the DK instructions to avoid confrontation. As defense has said often, reality is more nuance than good and bad, but there are objective elements that may explain why DK behaved in one way or another in particular moments. Ms. Guissé gave as an example the testimony of a witness who said that the instructions were to avoid confrontation. Ms. Guissé explained that the reason for the instruction was because the DK did not want start something after the civil war with Lon Nol and the DK did not want to provoke the stronger, larger Vietnamese army.

Mr. Koumjian said that the 1978 speech by Pol Pot was proof of genocidal intent, and defense maintains that that is a linear and schematic version. In April 1978, Pol Pot was trying to recall past victories. It was right after the incursion into the DK of Vietnamese troops in 1977. Here we must see what happens on both sides, and there is a problem of intellectual honesty if we do not speak about this. Vietnam had just started invaded DK, and an expert testified that Vietnam left because it was not geographically feasible for them to stay. Not speaking about this context annihilates a fundamental element, and it has legal consequences as well. Defense took the trouble in the brief to remind the Chamber of jurisprudence before and after the war with regard to speeches in times of war and what is admissible as propaganda, and that is a key element to understand the speeches of DK and of Khieu Samphan. Not speaking about this is as if this legal element does not exist.

Ms. Guissé next discussed a witness presented by the prosecution as a key witness on genocide of the Vietnamese. But the truth of his testimony was that he was a simple foot soldier of the lowest rank, by his own words, he was not a leader, and he only knew what was in his unit and at most his battalion, and he had specialties. Moreover, his testimony is hearsay because when asked what he heard about the necessity of killing Vietnamese he said he supposed that his direct leader would have heard such an order. He was the only witness the prosecution had called to support their claim of genocide against the Vietnamese. The prosecution never mentioned the other witnesses with command positions who said that not only did they not receive kill orders, but they received the opposite.

There is a problem here, because we are speaking about soldiers, and we are speaking about armed conflict, a fundamental element.

Thus, context plays a critical role when the prosecution says that Pol Pot’s speech in 1978 is proof of genocidal intent, and the answer is absolutely no. First, another witness said when he heard the speech that at the point where Pol Pot spoke about the 60 million Vietnamese soldiers, he did not understand this an order to slaughter Vietnamese. He said they were not 60 million Vietnamese and two million Khmer soldiers, this language was only to prepare soldiers for the attack and for victory. Ms. Guissé stated that it was necessary to bolster the smaller, more poorly armed Cambodian army. So, armed conflict is important because it has legal and factual consequences to the consideration to the facts. Khieu Samphan said in one of his speeches, he spoke about Vietnamese that they were savages and like Nazis, like Hitler, referred to document that is an article in which Sihanouk is condemning Vietnamese attack of December 1979 and compared the Vietnamese invasion of Cambodia to the Hitler invasion of Austria or Czechoslovakia.

In the appeal judgement in Case 002/01, the SCC agreed with this analysis of speeches and the SCC censured this Chamber’s interpretation of a Khieu Samphan speech as war time speech that should be analyzed as a propaganda speech.

The prosecution is drawing conclusions about certain facts by completely omitting reference to armed conflict. During 1978 there was a multiplication of correspondence which seems to prove that the center was aware of what was happening in the East Zone, which seems to prove their persecution of the Cham, but in 1978, things were heating up in the East Zone, and the multiplication of correspondence could be explained that it was necessary to report what was happening on the front line, and this is why the armed conflict context is important.

A few answers to the prosecution brief on crimes and crime sites. And legally speaking, I must make two observations on the crimes of enslavement and extermination. First, on extermination, the prosecution reminds us in their brief of jurisprudence that says that there must be a single crime with the same actus reus, and this was what led SCC to acquit in Case 002/01. If Chamber recalls Bagosora jurisprudence, the application is completely false. And the problem here that we have constantly pushed the limits of the facts to talk about politics, seen as relevant, that are outside the scope of the case. This is seen by the explanation of the prosecution of Bagosora, where they say that we will exempt ourselves from requiring that all the elements are from one act.

Ms. Guissé says, if there is a murder then it is a murder, and you cannot establish extermination on that basis. There are different crimes sites that are listed at which extermination was charged, and prosecution has to prove extermination to a specific site. What the prosecution is doing is taking the extermination as a whole, but that was not the charge.

The same thing applies to the the crime of enslavement: there are two cumulative conditions which are the exercise of ownership and the imposition of forced labor. The prosecution says that it is one or the other, but it is the two, taken together. Furthermore, the real problem we face as regards the prosecution brief and closing arguments is that they rely on legal characterization and forget the facts, they have a lack of rigor regarding the facts.

Next, Ms. Guissé reviewed the evidence and the prosecution’s approach to each of the four worksites.

In the Tram Kok Cooperative there is no rigorous examination of the evidence and the charges. In the closing order, when you read about Tram Kok, you are under the impression that there are eight communes, which would be the communes requested in the introductory submission and through investigation. Investigators learned of the 8 communes. In normal proceedings, the prosecution should have just listed the eight communes, but there is no supplementary submission for more, and prosecution refer to 12 communes, and here we are out of scope of trial. Ms. Guissé requested that the Chamber not to take into account information not in scope of closing order.

Another point which shows how the prosecution does not focus on facts is the crime of imprisonment and treatment of Buddhists. In the issue is the treatment of Buddhists, we take the exact charges, Khieu Samphan is charged with religious persecution against Buddhists, there are no charges of murders of Buddhists, yet the prosecution refers to murders of Buddhists, and while those are in closing order, they are not in scope of 02/02. We have to look at the legal characterization of those facts, and find if you can find the Accused guilty on that basis.

Ms. Guissé next referred to the presentation of one of Nuon Chen’s counsel, Doreen Chen on Kraing Ta Chan and Phnom Kraol. For Kraing Ta Chan, Ms. Chen had clearly exposed the documents that are not reliable and whose chain of custody was not known, and that is problematic. For Phnom Kraol, Ms. Guissé said that defense was told it was a complex. The prosecution relied on a key civil party testimony, but it turned out the person “was detained at a prison in the Phnom Kraol area,” so not a key witness, and not at Phnom Kraol. With regards to Au Kanseng, the prosecution gave a presentation on Khieu Samphan that there was communication between Au Kanseng and the center, but it provides no evidence, so it is an assumption. Moreover, Son Sen was a member of the standing committee, but Khieu Samphan was not a member of standing committee and the prosecution expanded their definition to persons associated with the standing committee. That is not evidence and that is not criminal procedure we should follow – they are changing the burden of proof.

Ms. Guissé will continue with the 1st January Dam tomorrow. Judge Nonn adjourned until 9 a.m. tomorrow, Khieu Samphan defense will have the morning to conclude their closing statements, and the civil party rebuttal will start in the afternoon.