ECCC Reparations

This blog is designed to serve as a repository of analyses, news reports and press releases related to the issue of RERAPATIONS within the framework of the Extraordinary Chambers in Courts of Cambodia (ECCC), a.k.a. the Khmer Rouge Tribunal.

Monday, November 25, 2013

Closing Statements: Noun Chea Defense


The Noun Chea (‘NC’ or ‘Noun’) defense opened with, among other things, a criticism of the prosecution for having sought to “paint the CPK leadership as monsters.” Given the prosecution’s eye and whatever other body part poetry discussed below (See my commentary on the prosecution’s closing statement), it is an observation that is hard to disagree with: The prosecution did go the proverbial extra mile to extend their characterization of the acts of the Democratic Kampuchea leadership to their personalities trying to turn these proceedings into a battle of the Good and the Evil. The prosecution’s vigorous use of the multiple disparaging epithets to this effect or the defense’s tiff with that use is of no interest to me and should be of no interest to anyone. What should be of interest to all of us is whether there are facts that fit the appropriate legal definitions that make these epithets warranted.

This was followed by the International Co-Counsel Koppe telling us that the prosecution mischaracterized the history of Democratic Kampuchea. This is a very broad statement that seeks to discredit the entirety of a very large effort. I did not expect that Koppe or his Cambodian counterpart, Son Arun, would raise a fortress to defend that allegation but I did expect something. I got nothing that would serve as a single rebar – forget about a whole fortress – to support that broad a statement. I will add to that the NC defense’s frequent use of very strong terms such as ‘egregiously’ or ‘manifestly’ as epithets for exactly how wrong the prosecution had gotten it were, more often than not, entirely unwarranted; equally, unlike Cato the Elder’s famed statement, the defense’s mere repetition of “the prosecution failed to …” will not make it so. While the prosecution’s evidence has some serious problems, saying that it is “laughable” is just that – laughable. While I do agree with the Noun defense that the Cambodian architect of this process saw the only outcome of these proceedings – conviction – and that the Cambodian judges of the court are crystal-clear about what that architect expects of them, this does not make either the prosecution’s evidence or the process as such laughable.       

The Noun defense’s closing statement was the first time I heard NC making so many admissions. In fact, the number of them and their magnitude are truly remarkable. First, Noun admitted to having been a part of the decision to execute the so-called ‘Super-Traitors’ (the most senior leadership of the Khmer Republic). I might have missed his previous statements to the same effect but this was the first time I heard his lawyers admit to this. This tells us that, at a minimum, there is no contest that the CPK intended to execute at least some of the civil servants of the Khmer Republic. The defense glossed over this as if this was an admission to eating the last cookie in the jar for understandable reasons but no observer should do the same as he or she does not have any reasons for glossing this over. This tells us that the CPK did not entertain the possibility of simply imprisoning these individuals but that they had been put on the execution list before the fall of Phnom Penh. The defense tried for some parallels with the US government and this would have made a great parallel with a certain fairly recent event (it is too bad they did not think of this). Second, Noun conceded to having been a part of the decision to evacuate Phnom Penh. He never expressly denied this but his current admissions are revelatory (to which I will get back later in this commentary). Third, Noun admitted to knowing about the order to execute Sao Phim. While I do not know what his counsel were trying to convey by the use of the word ‘knew’ (did Pol Pot tell him over breakfast: ‘damn this is a good bobo; by the way, Phim is coming to town; I decided to have him whacked’), this admission is revelatory to me. It is most curious to me that the Noun defense decided to bring up Sao Phim’s execution which took place towards the end of the regime and long, long after the closing bracket of the scope of this trial. I do understand that the defense sought to restore their client’s credibility after the prosecution’s onslaught on it but what they achieved – at least so far as I am concerned – is people possibly asking this: Sao Phim was a towering figure in Democratic Kampuchea and if Noun “knew” about the order for his execution, the orders for what other executions might he have “known” about? If I were the NC defense, I would not want the judges wondering this as prejudice here clearly outweighs any positive effect the defense sought to produce by bringing Noun’s knowledge of the order to kill Sao Phim into the discourse of this trial (I sincerely hope that the defense did not think of this disclosure as having little prejudice to their client because Sao Phim committed suicide before the killers could get to him).

Koppe then inveighed against a particular expert-witness, Philip Short, attacking his credibility in every possible way. Koppe picked the wrong guy to inveigh against, however. Short’s credibility insofar as his understanding of communism is not a matter for any serious debate: Among all the scholars of communism heard by this court he is the only one who had spent years studying it immersed in the very environment of communist countries (Soviet Union and China); his formal education is and should be of no interest to anyone at this point in his career. He has published at least two well-received major books, authored numerous news reports and analyses and has made two documentaries (that I have seen; I do not know how many more he has to his name in total). I have read Short’s books and I have seen his documentaries. He is a solid scholar of communism and there is simply no two ways about it. Whoever argues the opposite is either an idiot or is a discerning but ill-intentioned individual (with intent to deceive). I would like to believe that Koppe falls in the latter category but statements like the fact that Short first came to Cambodia in 1993 somehow speaking against his credibility (when did Koppe first come to Cambodia? Should we hold that against him?) raises doubt about that and stays my hand that was about to assign him to the latter category. Keeping playing dirty, Koppe threw the fact that Short speaks no Khmer as a pile of dirt at his credibility. Very dirty play by Victor Koppe and, ironically, in my opinion, it achieved absolutely nothing other than to show how truly desperate the Noun defense was to discredit Short’s testimony (we all are happy for Victor that he has managed to learn as much about Democratic Kampuchea and communism in as short a period of time but his knowledge of either is far off that mark – provided there is such a mark – from which one can call Short “a British journalist with no apparent qualifications at all;” with that said, I do not know if Short’s Pol Pot is flawless or whether it contains mistakes of fact (I did not see anything glaring but then there might be peccadillos here and there); Koppe did not point out those mistakes, provided they are there; what he did instead was to attack Short’s credibility as an academic. Koppe was particularly incensed by Short’s characterization of Democratic Kampuchea as a slave state. As noted below, I equally disagree with that characterization and I equally believe that the prosecution crossed the line from science to street-corner bombast on that one. But, Koppe did not stop there. He told us that no other scholar had referred to Democratic Kampuchea as a slave state. Koppe is way off the mark on this. Without doing any additional research on this (to return Koppe’s cruelty on this, because that is the difference between a scholar and an amateur who somehow walked into this for a little bit), two authors immediately spring to mind: Ervin Straub and Craig Etcheson (the latter refers to the use of slave labor exclusively in relation to the construction of the Kompong Chhnang airport but he had been the prosecution’s historian for 002/01 and it would be hard to imagine that he was not the one who put the ‘slave state’ label on Democratic Kampuchea as a whole). Do Straub and Etcheson too fail to pass Koppe’s “apparent qualifications” muster? It is one thing to say that you disagree with the prosecution’s characterization; it is entirely embarrassing to display your lack of knowledge of the literature and erroneously declare that Short has been the only one calling Democratic Kampuchea a slave state.

After this Koppe’s defense experienced another self-inflicted setback: Koppe stated that the prosecution did not care about the objectives of his client’s actions. That is entirely incorrect. The record clearly shows that the prosecution spent a fairly significant amount of time lambasting the Stalinist/Maoist theory of the ends justifying the means calling it unacceptable to the civilized community (See my commentary on the prosecution’s closing statement below). As such, the prosecution never argued that all Democratic Kampuchea objectives were malignant; instead they argued that they were unacceptable to the civilized community (whatever that means). It is, however, irrelevant which one of them is correct because criminal trials are not about the soundness or palatability of policy but about crimes and about whether the persons in the dock committed them. It is at this point and after having put us through much nonsense that the Noun defense has found its way out of the woods.

I agree with the Noun defense that Michael Vickery should have been called to testify. He is a unique voice on Democratic Kampuchea and the Trial Chamber robbed this process of completeness by not calling him as an expert witness. The fact that Vickery has worked for the defense should not have rendered his testimony biased in the same manner as the Trial Chamber did not read bias into Etcheson’s testimony who at the time was working for the prosecution.

After this moment of clarity the defense veered off the road again into a series of statements ranging from questionable to outright ludicrous. One, the defense contended that there was no connection between what the CPK leaders read and the manner in which they acted. If it had been Harry Potter they read, I would have probably agreed with the defense. But, they happened to have been reading materials that changed their perceptions of society and helped them form a view of radical change. I am not saying that if we could find every shred of paper Noun read in the 1950s and the 1960s we necessarily would be able to trace every action of his as part of Democratic Kampuchea to them. But I have never heard of any reputable scholar making an argument that a communist revolutionary leader was not influenced by some form of communist literature he had read or that had been read to him (even Stalin who was not exactly an intellectual and who patently belonged in the latter category). Two, the defense argued that many of the Phnom Penh evacuees were peasants from up-country and wanted to return to their homes. The gods of the rational completely abandoned the Noun defense at this point. And ordering them to evacuate was necessary because, I presume, there was a danger that they otherwise would not find their way out of Phnom Penh or that they would need a push like the one a pot-smoking brother needs to go put in an application at McDonald’s? Mr. Koppe, what in the hell are you talking about? But, as they say, it is always darkest before the dawn and, lo and behold, Koppe’s crew found its way back into the light by arguing that none of this matters and the only thing that does matter is whether ordering an evacuation of a city was a crime under the contemporaneous law. Just when we about started losing hope the soothing light of rational argumentation descended upon the defense. Yes, that is the only thing that does matter and everything else is pure conjecture created by a bunch of lawyers with no policy experience jousting over who has the better command of Democratic Kampuchea history – nothing but a bunch of parlor tricks. All parties to the proceedings, please, knock this off.

But the sun did not shine on the defense for too long this time either: Shortly after the bright light of the moment of clarity the defense descended into the darkness of what sounded like a piece of latter-days Democratic Kampuchea radio propaganda. It took us on a wild ride, with the defense arguing that Ros Nimh and Sao Phim plotted against Pol Pot and Noun Chea, that there was interzone warfare, that the Americans, the French and the Vietnamese were to blame (have we not heard this before) – all without a shred of evidence to support these very bold allegations. A ray of light entered the darkness of this argument when the Noun defense tacitly admitted that Noun was part of the decision to order the execution of Ros Nimh and Sao Phim. What the defense is correct about is that the Democratic Kampuchea period literature, as it presently stands, is overly simplistic on the manner in which it attributes all the executions to the party center’s paranoia. It is a puerile way to look at the complex power struggle that persisted throughout Democratic Kampuchea and to which Pol and Noun (it is these two individuals who ran the country; everyone else was peripheral and, essentially, expandable) reacted with executions to remain their grip on power.

Then, came the moment the defense had been waiting for through all these years: The moment to cast the current leadership of Cambodia into this play. The defense pulled no punches and the bench, for the first time, let them say what they wanted to say on the subject. The names of Hun Sen, Chea Sim and Heng Samrin were finally brought into the court. The defense repeatedly filed motions seeking orders to summons these individuals as witnesses. None of them were granted. The defense kept trying. The question that the court has wrestled with is whether the defense has the right to call any and all witnesses they believe might help their client. The answer to this is a resounding yes, with a caveat that they need to show that each witness can be reasonably expected to shed light on the particulars under examination (this remains an inquisitorial system regardless of how much the judges and the parties have been trying to butcher it up and turn it into an adversarial one, through, but not limited to, a piece of post-consumer paper called the Internal Rules). For anyone familiar with the roles of Democratic Kampuchea to say that the three could not have been reasonably expected to shed light on the contentions in Case 002/01 would be either to admit that he or she is an idiot or that he or she is obfuscating for a political reason. While it is understood that the defense sought rupture by doing what is unthinkable in Cambodia: Summonsing Hun Sen to court as an ordinary citizen. There is no doubt that they had more than sufficient justification for seeking summonses for Hun Sen, Chea Sim and Heng Samrin. By denying these motions the Trial Chamber has doubtless shown that it is not independent and that it is controlled by the Cambodian executive. By denying these motions the Trial Chamber also caused Noun prejudice and must recognize this to save what is left of this bench’s integrity. Besides causing Noun prejudice, the Chamber reinforced that the constitutional equality before the law does not apply to the top leadership of Cambodia and that the individuals that form it are immune from the law. The defense has every right to be outraged by this because, as the defense very correctly notes, the international judges were placed on the bench for the sole reason of preventing this type of rulings from happening (it is not their expertise or intellectual prowess that the framers were looking for; that is brought in abundance by the backroom lawyers). The Chamber’s persistent refusal to summons these three individuals has robbed this process of the opportunity to have the current leaders’ positions within Democratic Kampuchea established by a court of law. Finally, it was Hun Sen (for the political reasons of the day) who requested that this court be established to prosecute Democratic Kampuchea. This request comes with a certain moral high ground that Hun Sen would have had an opportunity to demonstrate, had he been summonsed to testify. This never happened due to the intransigence of the Trial Chamber on the matter and the Trial Chamber owes Noun reparations for this. And then the Noun defense put forward an absolutely brilliant argument that deserves a standing ovation. The argument went this way: If the Chamber finds Noun’s decisions that helped form Democratic Kampuchea policies criminal, it will render such policies criminal and by extension the actions of all Democratic Kampuchea cadre who implemented these policies; Hun Sen was in the military of Democratic Kampuchea which, by extension, will make his actions to advance these policies criminal. Such a fantastic tie-in with the powers that be in Cambodia. Of course, legally, this argument does not mean squat and I believe that the defense was fully aware of that. But then, legally, courts have no right to protect ranking members of the government from subpoena motions, either. Hence, the defense clearly lobbed this argument in for political, not legal reasons.

While the legal value of this assertion is uncertain at best, I would like to note the pointedness of the defense’s statement that the civil parties acted as "auxiliary prosecutors" throughout these proceedings. More precisely this cannot have been put.

I now come to the Toul Po Chrey counterargument. As I note below (See my commentary on the prosecution’s closing statement), the prosecution bungled Toul Po Chrey so badly it flung it wide open to an onslaught from the defense. The defense ran roughshod over the prosecution for the fiasco of a case they put on for Toul Po Chrey. To this effect, the defense correctly noted that all of it is a mess that is holding together on a wing and a prayer. There is no question that the prosecution’s case for Toul Po Chrey would have collapsed from a gust of wind and the defense brought along a tornado. Here is what that included. First, the defense pointed out that the witnesses testified to a range of victim at Toul Po Chrey as wide as 200 to 3,000. Second, the defense claimed that Heng Samrin had told Ben Kiernan that Noun had specifically given orders not to harm the Khmer Republic officers. The defense pointed out that the Chamber prevented the defense from cross-examining Heng in court and getting his statement on the record. Third, the prosecution impermissibly relied on statements of witnesses who appeared nowhere other than in a film. Naturally, the bench had no opportunity to examine these witnesses and the defense had no opportunity to cross-examine them. Fourth, the defense claims that a witness (Pee Bun) who did appear before the court testified to Pol Pot giving an order not to harm the Khmer Republic soldiers. Fifth, not only is there no list of Toul Po Chrey victims, not a single one of them has been identified by the name. Sixth, there was no forensic examination of the Toul Po Chrey site and, consequently, there is no physical evidence from it. Seventh, there is no documentary evidence of the Toul Po Chrey execution. Eighth, the testimony given by the witnesses whose presence was requested by the prosecution is contradictory and inconclusive. None of them are eyewitnesses. The prosecution bungled this one very badly and there is simply no two ways about it. While given this fact the counterargument was a layup, the defense did do a good job attacking the multiple holes in the prosecution’s story.

Then there is Toul Po Chrey’s antecedent: The policy to execute Khmer Republic military. The Noun defense opened with strong material here. First, they showed that there was no documentary evidence of such policy. Second, they showed that there was no conclusive and admissible testimonial evidence thereof.  Third, they showed that there was no pattern of executions nationwide. Then they slipped to a very weak argument of “why would the CPK want to execute 3,000 hardcore Cambodian communists returning from Vietnam?” Besides having nothing to do with the Khmer Republic military, I can think of at least a few reasons for this right off the top of my head: (1) Many of them were better educated than Pol and Noun generally and far better versed in Marxism-Leninism that would have made Pot and Noun (let alone people like Son Sen and Sao Phim) look their inferior; (2) There was an ongoing conflict with Vietnam and these people had contacts linking them directly with the top of the government in Hanoi; some of them could have – and probably would have – become spies for Hanoi; others would simply backchannel to their friends and associates in Vietnam; (3) the CPK leadership was a small group of people and was a family affair (the wives of quite a few at the top leaders were government ministers) and an injection of 3,000 people some of whom would doubtless vie for leadership would threaten the grip on power of Pol and Noun; and (4) When Ta Mok was asked about the execution of Sao Phim, he justified it by saying that the latter was not really Khmer but a Khmer body with a Vietnamese mind; this position was not unique to Mok and was doubtless shared by the CPK leadership; if Sao was perceived as a Khmer body with a Vietnamese mind, what could have been said about Khmers who by then had spent a few years to a decade of heavy indoctrination in Vietnam? I do not believe that I would be suggesting crazy history if I said that those Khmers had been trained by the Vietnamese for years on end to take over the government of Cambodia when Vietnam achieved its goal of creating an Indochina union by, as Cambodians often say, “swallowing” Cambodia and Laos (in the same manner the French trained Vietnamese in Saigon to work in the French Administration of Cambodia). This is not crazy history because Vietnam repeated the effort on an emergency basis when the first carefully choreographed plan failed (Pol and Noun were on to the plan and killed off the entire corpus of communist bureaucrats Hanoi had groomed for takeover of the Cambodian government for the Vietnamese Indochina union). The result of that plan was brought to Cambodia on the armor of Vietnamese tanks in 1978 and it is, in part, in office now. To suggest that the CPK had no reason to execute the returning Khmer communists (who were returning as an unarmed invasion force) one would either have to know very little about that period of Vietnamese-Cambodian history or have to be making a ridiculously untenable argument to defend a particular position. I do not imagine Short would have made this untenable an argument. But Koppe did (Son read it in court but the authorship lies in the foreign brass of the Noun defense). From here, the Noun defense plunged into the absence of a policy of execution of Khmer Republic military being “direct evidence” that it did not exist. If only did criminal law worked this way few would ever be convicted. The defense appears to have been able to raise doubt that there was a policy to execute Khmer Republic military. They also appear to have conceded that such policy was issued on May 20, 1975 (although it is not entirely clear if they did). As a sidebar, somewhere in this argument the Noun defense made an idiotically insensitive comment that 200-300 people that were executed during the existence of M-13 “wasn’t that many” and that all of them were spies. Having absolutely no support for that assertion, the Noun defense completely drank CPK’s Kool-Aid.         

The defense then aptly pointed out the conflict created by Steve Heder's initial employment with the Office of the Co-Prosecutors and a subsequent transfer to the Office of the Co-Investigating Judges. The defense stated that, essentially, what happened is that Heder wrote an introductory submission for the prosecution and then went to the investigating judges to check what he had written (investigating judge is a check on the prosecutor under Cambodia law). There is hardly a better way to put it. There is no doubt that this never should have happened as it has 'conflict of interest' written all over it.  

The Noun defense was also absolutely correct that out of court statements should be assigned no weight. None. Zero. Under any circumstances.   

Following these stellar moments, the NC defense dipped into the darkness again. As it normally would be the case, much groping took place in the darkness. Much of it was devoted to attacking things the prosecution never claimed: NC never enriched himself through public office, was not an intellectual (the prosecution only responded to this because the defense had opened this clam), etc. Then attacking ones that are, in my opinion, of no consequence. The Brother #2 debate belongs in that category. Who cares if this was not called that or was called that only by some or not at all? It appears that Noun does not deny that he had one of the highest ranks in the party during Democratic Kampuchea and that is what is important to the legal process. Let the historians thrash it out about whether he was actually called Brother #2. Then there was S-21 and Noun’s role in it. The defense opened by very correctly stating that S-21 had been specifically excluded from the scope of this trial by an order of the Trial Chamber. The defense should have stopped at that and moved on to a different topic. That, alas, never happened. What did happen was more grouping in the dark, this time of the prejudicial variety to the accused. Let’s see how it unfolded. The defense opened with a contention that some S-21 documents are missing. What does this mean? Is the defense saying that all those documents were removed by the Vietnamese for reason of being exculpatory? I do not imagine the Vietnamese would have bothered to wade through over 4,000 confessions but let’s say they did and let’s say they removed and destroyed the ones on the basis of which prisoners were released. If that is what the defense wants to argue, why is it not saying that? Then there are the 25 confessions that Noun allegedly annotated. The defense appears to concede that. There is a messenger that delivered confessions to Noun a couple of times and there is a contention that the handwriting on the 25 is his. The defense argues that Noun requested those confessions to use them as training materials for his political seminars and that he never was in charge of S-21. Duch says that he was after Son Sen left to go to the front in the East. The defense argues that Duch is not a credible witness. I agree that he is not. With that said, he is as reliable a witness as Noun. Now, the defense asks us to disregard Duch’s testimony and take their client’s statement at face value on a say-so basis. That is a tall order the Noun defense is trying to place. Let’s reason here. Does the evidence show that Son Sen was transferred to the East? Yes, it does. Does this mean he spent his entire time in the East? No, it does not. The defense says that there is a witness who says that he saw Son Sen visit S-21 numerous times and all the way till the end of the regime. It is my understanding that that witness never appeared before the court. Now, what reason does Duch have to lie about the transfer of supervision of S-21 from Son to Noun? If anything, there would have been much more reason for him to say that Son was his supervisor the entire time for Son is dead and cannot defend himself. Noun is not and can. It appears that Duch had a few things to lose and nothing to gain by implicating Noun. I therefore have trouble seeing why Duch would lie about Noun supervising S-21 towards the end of the regime. I also recall that Duch recounted Noun chastising him in the early 1980s for not having destroyed all the S-21 documents as he instructed him (I do not recall the source of this statement). If this statement were to have been tested and attributed to Noun, there would have been little doubt that he indeed supervised S-21 towards the end of the regime. The defense dug itself deeper by arguing that the reason Noun requested S-21 confessions was because at the time he was tracking a particular military unit and that he now forgets why. This is a very bizarre argument, particularly in light of Noun’s repeated assertions that he had nothing to do with the military. I have trouble imaging someone who has nothing to do with the military tracking arrests in a particular military unit. Further into the dark abyss, the defense argued that there is no proof that NC actually wanted to see the S-21 confessions. What would the alternative be? That Duch was so clueless as to his supervisory authority that he would send confessions to everyone in the cabinet? Another stab at Duch was an attack of his assertion that he only followed orders. While it was established in Case 001 that Duch did have a certain amount of autonomy (to have the role of what in some jurisdictions is known as police prosecutor), for the most part, he followed orders.

Then came the extended counterpoint on the evacuation of Phnom Penh and the subsequent evacuations. I was surprised that the defense readily admitted to Noun’s participation in the decision to evacuate Phnom Penh. My surprise grew greater when they admitted that humanitarian objectives were only part of the reason for the evacuation (I expected them to argue starvation and hunger riots if no evacuation had been ordered). It is therefore clear that the defense does not contest that the party center ordered the evacuation of Phnom Penh and that the reasons for it were multifold and that they are not limited to avoiding starvation. They went further to admit that cooperatives were a legitimate state objective and that placement in them was a legitimate policy tool (they tried some, albeit unpersuasive, artifice of citing UN and World Bank documents on legitimacy of population movement). The defense then tells us that the infamous Chhouk Rin (whose credibility is at least as low as those of Duch and Noun) testified to the CPK not seeing Phnom Penhites as a whole as an enemy. Chhouk is known to have lied about so many things in the past it is impossible to know what parts of his testimony uncorroborated by others are true. But, I can entertain an argument that while anti-urbanite sentiments were flying all over the place, there was no specific policy of considering all by then 2.5-3 million Phnom Penhites as an enemy of CPK. Then the defense uses Chhouk’s testimony to argue that there was no policy to treat the so-called ‘April 17 people’ differently. Although there have been powerful testimonies of lower-level CPK cadre giving the ‘you refused to join the revolution, now you lost, we won, and now you will pay’ speech, I am willing to accept the defense’s argument that there was no centralized policy to deliver those speeches and that the lower-level cadre took this initiative. I am also willing to buy the defense’s argument that there was no centralized policy to give the evacuees less food or work them harder than the so-called ‘base people’ (I am willing to allow for a possibility that they were not worked harder but that it merely seemed that way because having lived in the foreign aid-created bubble of Phnom Penh, they were not used to the life in the real Cambodia – backbreaking peasant labor and brutal heat). I am equally willing to accept the defense’s argument that some lodging had been prepared prior to the evacuation. But, I accept this argument to a very limited extent which is to say that little lodging had been prepared and the evacuees were expected to be lodged with the base people while building their own shelter (there are simply too many accounts of not having shelter to buy that there had been a massive construction program prior to the evacuation). To further prove that the regular Phnom Penhites were not perceived as a CPK enemy by the party center the defense cites from the Revolutionary Flag and the Revolutionary Youth. The defense chastised the prosecution for selective citation but it does just the same here. Even if I was to buy that those two statements formed the policy, I would still be left with the facts that many groups of Phnom Penh denizens were not included in the list of social classes friendly to the revolution contained in these two citations. What there is evidence to support was the case is that the CPK considered some of the population of Phnom Penh its enemy while not others and during and shortly after the evacuation it wanted to see who was which.

For reasons of humanity I would like to believe that the evacuation of Phnom Penh was a crime but knowing the contemporaneous law I have no choice but to agree with the defense that it was not. Nor was placement in cooperatives unless it was for reason of punishment (then there would be a couple of UN conventions and declarations prohibiting that). The prosecution can try every trick on this planet to swing it their way but there is simply no credible way of doing that. And, I believe, the defense knows that. With that said, the defense completely lost its way applying a test of the totality of circumstances. If it is the US law that it borrowed that from, their analysis is light years away from the actual test (I sincerely hope it is something else because it is unconscionable to think that lawyers could misread a legal test so badly). Another piece of nonsense delivered by the defense in this regard is the “not severe enough to constitute a crime” argument. Severity aggravates crimes; there is no such thing as a critical mass of severity that creates a crime. I believe this is at the level of Law 101 wherever it is taught. Here, the defense made another idiotic display of insensitivity admitting that while some people died, it was not enough for it to be a crime.   

Then there was the argument that there was no order from the party center to shoot civilians. I do not believe the prosecution ever argued that there was; I believe that the prosecution’s argument was that conditions had been created that were so that the lower-ranking cadre did not feel that there was restrained by any punitive measures if they did shoot civilians. These are two different arguments and the defense, therefore, responded to something the prosecution never said.

The argument that Noun had learned of the subsequent evacuations from the zone leaders seems suspect. While I do not believe that the zone leadership reported to the party center every time it moved a dozen people, there is more than enough of a reason to believe that the major movements were either approved or initiated by the party center. With that said, I do believe that the terminology of ‘The Second Phase of Evacuation’ (which I deliberately eschew in this note) was an invention of the prosecution and no one in the CPK contemporaneously thought of the subsequent relocations as the master plan of ‘The Second Phase of Evacuation.’ The defense’s support that Noun learned about it from the zone leaders is Noun himself. I do not know what type of lawyers believe that this ever works in court. The only support proffered is this logic: Noun had admitted to be a part of the decision to evacuate Phnom Penh; had he been a part of the decisions to order subsequent relocations, he would have admitted to that too. While not entirely without merit, this is a very thin-ice argument.

The defense then argued that there is no support for the charge of extermination in the cooperatives. There was no intent to exterminate and there were no conditions deliberately created to bring about the death of the population. This is hard to argue with.

I equally agree that the defense successfully raised doubt as to whether the relocations were reprisals. The evidence I have seen and heard does not support that argument, although many a few base people doubtless enjoyed the fact that the snooty capital dwellers were finally shown how the rice grows. So far as the party center is concerned, on the evidence admitted in these proceedings it is possible to agree with the defense that the relocations were ordered as a matter of necessity of labor.

The prosecution’s main problem is that it often gets greedy and wants to show that CPK had committed every crime in the book. The persecution of the Cambodian Muslim population immediately after April, 17 is but one example of this greed. There is no evidence of this to amount to anything that is anywhere near the international crime of persecution and the defense is correct about that.

The defense argued that there is no evidence of disappearances. I have no idea how one argues this in the face of much unimpeached testimony to the contrary. People were taken away and never returned. That is a disappearance. What part of this does the defense not understand?

The defense argues that while it is true that some people suffered, it is equally true that many did not suffer and had CPK provided food and shelter immediately after the evacuation. I will go along with the defense on this to the extent that there are different accounts. However, the overwhelming majority of these accounts attest to their being no food and no shelter or water during the evacuation and that people were left to their own devises to get to where they were sent. It is true that upon arrival at the destination many were fed and accommodated but this does not mean there was shelter. What is reasonable to agree with is that the CPK had some sort of an evacuation and resettlement plan but the particulars of it were left to be worked out by the local authorities that created much variation in the experience of the Phnom Penh evacuees.

The defense closed on a low note arguing that “many volunteered” to be relocated to the Northwest Zone. Who did? Where is a single witness who said that he or she did? I imagine that many did not vocally object to it but that can hardly be accommodated by the term ‘volunteered;’ this is more within the lines of ‘manufactured consent’ than volunteering.  


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