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.

Tuesday, December 31, 2013

Prosecution: The Rebuttal

In their rebuttal statement the prosecution challenged a wide range of aspects associated with the defense’s statements and responded to a variety of aspects of the case to which the defense teams urged it to respond. Unlike it was the case with the defense (the Khieu defense in particular), the prosecution's statements always remained level-headed and within reason (even if one did not agree with them, it was always possible to easily discern what they were) and at no point deteriorated to a psychotic rant.

This review does not seek to be fully inclusive of all the challenges made and responses given by the prosecution but will only include those that were new or that I felt were of particular relevance to the case.

The prosecution’s argument that the call for execution of the top Khmer Republic officials labeled as ‘The 7 Super-Traitors’ was criminal as it set an example of the treatment that was due to all Khmer Republic officials was well-delivered but ill-advised and weak in substance. It is one thing to argue that the incitement to kill The 7 Super-Traitors imparted to the population or the order kill given to the military was a crime, it is another story to say that the population’s or the troops subjective interpretation of that incitement or order as an example for future treatment of all the Khmer Republic officials was a crime. I have no trouble with the prosecution demanding punishment for the murder of The 7 Super-Traitors but I am highly troubled by it demanding punishment for what the onlookers might have extrapolated from that murder.

The history of other communist countries is not the prosecution’s strong suit but they keep trying to wear it. On this occasion, they tried to add pith to their statement of the human toll during the evacuation of Phnom Penh by saying that that evacuation was “with no precedent.” That is incorrect. The Soviet government ordered numerous evacuations during WW2, with the single comparable evacuation being that of Moscow in 1942 (there is important details of that evacuation that differ from the evacuation of Phnom Penh, with one of them being that the fact that the Germans were about to enter Moscow was not in dispute at the time and has not been in dispute by historians ever since). It is hard to imagine why the prosecution takes these risks as they add very little, if anything, to their argument and all that they accomplish is laying bare the areas where the prosecution is out of its depth.

The prosecution’s Geneva Conventions-based argument is strong material. Its relevance to the refutation of the defense’s position of the evacuation of Phnom Penh being necessary as a war measure will make it difficult for the panel to give that argument of the defense any weight. With that said, this argument of the prosecution does not necessarily annihilate the defense’s entire position on the evacuation of Phnom Penh. It does put a gaping hole in it, though, that the defense will have trouble plugging.

Throughout their rebuttal the prosecution spent much time on its catnip – the Joint Criminal Enterprise (‘JCE’). The prosecution correctly stated the current international law that the contribution to JCE must be significant. Then it veered off the road arguing that Khieu’s contribution to it was “unique.” While I have my misgivings about the prosecution’s argument of the “unique[ness]” of Khieu’s contribution to the revolution (his Robespierrean qualities notwithstanding), I have absolutely no doubt that ‘significant’ is not the same as ‘unique,’ either in the governing law or in plain English.

The defense inveighed against the prosecution’s characterization of the overall treatment of the population during Democratic Kampuchea as “enslavement” and ridiculed it mercilessly. The prosecution came back with the International Criminal Court (‘ICC’)'s definition of ‘enslavement.’ It is not an accident that the prosecution brought that definition into the proceedings only now: Just as the rest of us are, the prosecution is fully aware that the ICC did not exist in any form during Democratic Kampuchea; nor did the ICC definition of ‘enslavement’ which means it inapplicable to this case. The defense has tried to pull numerous stunts for which reason I cannot fault the prosecution for trying to pull this one but it deserves no legal weight. Then the prosecution ran a litany of references to the word ‘slave’ that is contained in the testimonial record of this case. Much of that was the use of the expression ‘work like a slave’ by the witnesses (let us remember that I refer to civil parties as witnesses too as no material difference between the two was ever struck in these proceedings). Not that I have any doubt that most were subjected to backbreaking labor during Democratic Kampuchea, but years ago in Cambodia one of our administrative staff fired off an email accusing me of “treating [him] like a slave.” The incident to which this was a reaction was my asking him to purchase some office supplies that I needed on that day. When I realized that a few hours had passed, the gentleman was not busy with anything else and yet the office supplies requested still had not been purchased, I reiterated my request in sterner terms (no profanity or abusive or demeaning language was involved and the sternness did not go further than the emphatic 'now' in this: “I want you to buy these supplies now”). The gentleman had about an hour’s worth of work to do a day while being paid a full salary. He sat in a heavily air-conditioned room and was left to himself most of the day (which is to say that he was allowed to do things that had nothing to do with his employment). It is in that context that he felt that a repeat request to purchase office supplies caused him to be “treat[ed] like a slave.” Other Cambodians who were aware of his statement thought it was a bit too much but not that it was so idiotic as to boggle the mind of any normal person (interestingly, the far more qualified Americans, many of whom having grown up in privilege, who have interned for me over the years have never had a problem with picking up office supplies for me and most definitely never felt that they were being “treat[ed] like [] slaves” for being asked to do that). This anecdote is not to trivialize the hardship many had experienced during Democratic Kampuchea but merely to show how liberally the word ‘slave’ is used by modern-day Cambodians (and given the fact that my accuser went on to work for a major local human rights NGO in Cambodia more might be using it liberally if that gentleman has anything to do with explaining to the populace what ‘slavery’ is all about).

The prosecution then cited Noun’s statement to Thet Sambath to the effect of Noun “casting the individual aside” and focusing on the wellbeing of the nation as a whole. What that meant should be seen through the prism of the political ideology espoused at the time but it is fair to say that every country that has ever espoused that ideology, at one point or the other, understood it as being an imprimatur to do whatever it liked with and to its citizens. The general pattern is not proof in and of itself but certainly does add value to the prosecution’s case. So does Noun’s statement in question (that is provided Thet’s films are given evidentiary weight but this I will discuss later in this narrative).

The prosecution proceeded to deliver a crowd-pleaser stating that murder of children during Democratic Kampuchea is not justified by saving Cambodia’s territorial integrity from Vietnam’s expansionism. A cheap shot but the defense had delivered so many of them that I can hardly blame the prosecution for surrendering to the lure of this one (not that murder of children is not the act of ultimate brutality but that the prosecution purported to be responding to the defense's contention by distorting it).

Mr. Raynor of the prosecution has enjoyed lecturing the court about how to apply the law correctly throughout these proceedings. It is particularly curious how, in my opinion, Mr. Raynor is the least qualified person to give advice on Cambodian law (or, if he is not, then it is puzzling why every time he does so he gets it wrong). Raynor called numerous statements in the defense closing statement “assertions” and concluded that under the law assertions are inadmissible as evidence. These proceedings have seen the bench declaring all sorts of crack-pottery law but I am going to presume that the law is what the statutes that govern these proceedings say it is: Cambodian law that is supplemented or overridden by international standards in exceptional circumstances. Article 321 clearly and unequivocally states that “[u]nless it is provided otherwise by law, in criminal cases all evidence is admissible.” What part of this has Raynor been finding so hard to grasp all this time? We all understand that he is used to English law and it is hard to teach an old dog new tricks but in this case it should be either that or the farm as the time he has wasted this court arguing distinctions between assertion and evidence and the admissibility of hearsay is staggering and completely irrelevant to these proceedings. Now, what weight the bench might decide to assign to particular pieces of evidence is an entirely different kettle of fish and is well-worth the parties’ effort and the court’s time to debate. Not admissibility which is regulated by a simple rule – all evidence is admissible (and for avoidance of doubt, all parties’ submissions are evidence, whether they are assertions, postulations, surmises or whatever else).

It is understood that it is the prosecution’s position that the humanitarian situation in Phnom Penh in April, 1975 did not warrant an evacuation. There have been reasonably persuasive arguments in either direction. I have heard a lot of stories, suppositions, surmises and extrapolations but I have not heard or seen any convincing evidence. What would convince me that the prosecution is correct in this case would be something like US Department of Defense communications from that period that do not include any evidence of intention of further bombardment of Cambodia. Another piece of evidence I would find convincing is the contemporaneous records of the humanitarian agencies of their assessment of the food security situation in Phnom Penh. Or, a witness testimony that the accused specifically either knew that the food security situation did not warrant an evacuation or that they were convinced, even if mistakenly, the other way. Nothing of the kind has ever been adduced by any of the parties to these proceedings. As such, it is now all about who is able to string all these suppositions and surmises into a better argument. All the prosecution offered us was a statement of Francois Ponchaud. They could as well have asked whoever ran the ticket office at the train station back then. And after citing authorities of this type the prosecution gets jumpy when it is accused of trying these accused on the basis of books and magazine articles. Stop citing Ponchaud on things he is not competent to speak to and then you will earn the right to get incensed at statements like this.   

Raynor gave us the gift of theater on the word ‘economic’ jeering at Noun’s use of it. It did not aid the prosecution’s case but it was nonetheless mildly entertaining.

The prosecution then went back to sweeping historical statements which, as I established above, is not the prosecution’s forte. This time it was an assertion that Democratic Kampuchea rejected all international aid. Anyone who has been studying Democratic Kampuchea for longer than a week knows that is not true. I have no idea how the prosecution has the gall to say this with a straight face in open court. Unless by “international aid” the prosecution meant Western aid (in the same manner we now say ‘international community’ when we really mean the West and those who agree with the West on the particular matter (I, for one, have never heard of the term being used to attribute a vast consensus on a particular matter unendorsed or specifically opposed to by the West), in which case it needed to drop the euphemisms and explain to the court why the fact that the Cambodian government that stood in stark opposition to everything the West stands for did not request or accept Western aid is strange or even noteworthy (do the Geneva Conventions say 'if your population is in dire need, take succor from the enemy'? ).

Then the prosecution put forward a theory that a sedentary population is easier to feed than a mobile one, thus, arguing that it would have been easier to feed the population of Phnom Penh if it was allowed to stay put then it was when it was set on the move. The authority the prosecution cited for this is Sydney Schanberg. It is interesting that the prosecution’s authority on what is clearly a matter of economic policy is someone who is a career journalist, with no expertise in economics and no policy experience or experience in the civil service as such. Another bull’s eye, gentlemen of the prosecution. Too bad Al Rockoff did not opine about this because that way we now would have had enough for a sequel.

The prosecution proceeded by rebutting what it summarized as the defense’s attempt to prove that the Northwest Zone was a rogue operation. It was not convincing the first time around and it was not convincing now. In my opinion, the prosecution went too far saying that the Northwest Zone – or zones as such – enjoyed no autonomy. I am not saying that Pol, Noun and Sen necessarily intended for that autonomy to be there but the fog of war is known to create much autonomy for far-flung units that is not intended by the central leadership (examples of this in the Russian and Chinese civil wars are rife). The Northwest Zone was one of such units. From the evidence I have seen, it appears that the Northwest Zone did enjoy autonomy for a long period of time prior to 1975 and it was that autonomy and Ros Nhim’s determining of what does and does not fall within its ambit that got him killed.

And then there was Toul Po Chrey. The prosecution’s piss-poor submission on it flung it wide open to defense attacks. The Noun defense ripped it apart, piece by piece. Now the prosecution set out to save it. On this track, it opened with a concession that there were no witnesses but then quickly compensated for that with a statement that there were orders from the zone. I jumped in my seat. What orders from the zone? What did I miss? When was this contended? Was there a document or a witness testimony? I am very curious. And if there was evidence of such an order, why did the prosecution not base their entire case for Toul Po Chrey on it? Then the prosecution told the court that while there were no witnesses, there was “reliable hearsay.” As I said earlier, whether it is hearsay or not is of no relevance to admissibility but it is of course of relevance to the weight the panel assigns to what the prosecution refers to as “reliable hearsay.” I have commented on the content what the prosecution terms as “reliable hearsay” before but I will say it again that there is too little testimony and too much prosecutorial interpretation of that testimony for it to be convincing (I am not saying it is unreliable as it is perfectly believable that the witnesses saw some trucks carrying some people somewhere). It kind of felt as if the testimonial evidence was Play-doh and the prosecution was molding it the way that would help their case. The prosecution wants the court to believe something that is so out of tune with what we know about mass crimes (survivors, eyewitnesses, documentary evidence, stench of decomposing bodies noticed by the local population, and local knowledge of and participation in the crime) that it is almost tantamount to the leap of faith that it takes believe in God – some trucks going somewhere in that direction, some trucks returning, something on the radio that might have sounded like gunfire and on-film statements of individuals who for some bizarre reason were not summonsed to court as witnesses. The prosecution knows that they had bungled this one which is evident from them giving out concessions like handbills (in addition to the ones mentioned above, the prosecution kowtowed to the witnesses being unable to arrive at anything that approximates a number of witnesses on which they can agree and which the prosecution now terms as “truckloads of people,” that Thet’s films might not be given much weight by the Trial Chamber (the prosecution, erroneously, keeps referring to this as “inadmissible”) and that the prosecution does not place much value in detail in this case)). Then there is the impartial and ever-so-truthful witness Duch who, in a completely Bizarro World fashion, is the prosecution’s star witness on Toul Po Chrey (although I do appreciate the prosecution’s last-ditch effort to link the Takmao prison with Pin’s Division 703 and both with Toul Po Chrey and making a good point that the Khmer Republic officials, naturally, were not evenly spread around the territory of Cambodia -- all this just isn't enough).

This is followed by a very bizarre statement that incorrectly labeling people as spies in a magazine is, in and of itself, a crime. One would wonder what the name of that crime would be and of course what they were serving in the court cafeteria on the day the prosecution arrived at this argument.

The prosecution gave birth to a method of proof called ‘common knowledge’ for which the test is ‘what even a baby knows to be a fact.’ Chhouk Rin was properly credited as a collaborator in the birthing of this test. I do believe that the Support Services need to review the menu of the court cafeteria with a view to removing anything that might act as a stimulant. With that said, in Cambodia in general, this would be readily embraced as a method of proof which I have heard many times as “everybody knows that.”

Raynor had to blast the defense for the backpacker vitriol and the defense fully had it coming as the comment was neither professional, nor warranted by the circumstances of the prosecution. Raynor decided to class it up and lashed back with a thinly veiled Shakespearian reference (Raynor overplayed his hand and actually could not help but to blurt out an explanation of the reference; had it managed to hold back and keep it veiled, it could have been good and tasteful). But then the Raynor-style miasma burst through in the form of Raynor characterizing Arthur Verken’s presentation as “ranting like a deranged peacock.” I do not care much for Raynor's antics in court but it is hard to disagree with this characterization. Some observers said Raynor was “in rare form” but I think he was just in regular Raynor form. And the British and the French have gotten along so famously throughout history. What a shame. The last nail in the coffin was a characterization of Verken as “a first-class amateur.” This has gotten way too personal and any modicum of levity that was there when Karnavas ran the defense show is now gone.

Then the prosecution pushed the boundaries on JCE to a point where it would raise the brow of even late Antonio Cassesse. Here is what they said. JCE covers all acts of the accused regardless of their level of involvement insofar as they agreed with the early-1970s policy on class enemies and enemies of the CPK. The prosecution is overreaching here. By about a mile.

One of the things I thoroughly appreciated about the prosecution’s rebuttal was them bringing something new into it as opposed to regurgitating their closing statement. They did it in a very creative way. They said to the defense, you do not like our experts and you do not like our evidence – fine. We are going to come back and hit you back with your favorite expert – Michael Vickery. And they did do that by pointing out Vickery’s statements of killings of the Khmer Republic officials. That was a great strategic move that now makes the defense look very bad with all their mudslinging at the professional records of the prosecution’s expert witnesses while the prosecution is looking shiny and good by recognizing Vickery.

 While I disagree with much of the substance in the prosecution's rebuttal, there is no denying that the prosecution delivered their arguments in a solid, clear and coherent manner. Something the defense should take their cue from. 

Sunday, December 15, 2013

Parallels: Now a Finger Has Been Put on the Year

Speaking of parallels, a number of Cambodia watchers have ventured an analysis as to the period of development the Cambodian judicial system is in now relative to that of the West. I have recently come across a most curious description of the French judicial system circa 1300-1400s written by an author in 1915. The following excerpt is particularly illustrative on the point:
"[T]he system of salability had the result of favoring the old practice of judicial fees [...]. About the end of the 1300s gold and silver were substituted in the place of presents in kind, and from being optional, judicial fees became obligatory (1395-1402). The judges had no legal claim to enforce the payment of fees; the suitor handed them to the recorder after the decision, and the total amount was divided among the judges after each session according to the number and importance of the cases which they had decided. The exorbitant price of the judicial offices and the extreme smallness of the salaries the judges received did not at all justify the collection of these fees, but they explained the practice and constituted extenuating circumstances in favor of the old magistracy" (Jean Bissaud, A History of French Public Law, 461 (1915)).  
Now we have an answer to this perennial question: Relative to France, the Cambodian judicial system is now somewhere in the 1300-1400s.  

Thursday, December 12, 2013

The Communist Rhetoric Lives On

"[D]espicable human scum Jang, who was worse than a dog" is what the North Korean government had to offer in the form of a eulogy to one of its most senior and recently executed leaders. If translated into Khmer, this line could have been mistaken for something that came out of Democratic Kampuchea. It is amazing that communist governments have a distinct bilious rhetorical style that is exactly the same no matter what language it is uttered in.    


Monday, December 9, 2013

Closing Statements: Khieu Samphan Defense


The Khieu Samphan (‘Khieu’ or ‘KS’) defense opened with a statement that it was in full agreement with the counterarguments put forward by the Noun defense. For the next hour and a half these would be the last words of sanity out of the Khieu defense’s collective mouth. What followed cannot be described in any other way than a rant of a committed mental facility patient foaming at the mouth (simply drunk does not capture it as I have seen severely drunk people making far more sense). I have always been an advocate of the UN making arrangements for mental health services at Category E stations, of which Phnom Penh is not but that duty station somehow appears to nonetheless have had the Category E station effect on the Khieu defense team. For this reason, I will not comment on most of this part of the Khieu defense’s statement but I think that this is good fodder for psychiatrists. I will, however, comment on a few things. One, the KS defense described the mode of liability known as ‘Joint Criminal Enterprise’ (‘JCE’) as “two people agreeing to commit a crime.” I am not a JCE fan myself (believing that it is a crutch judicially made up to assist the prosecution for political, rather than judicial, reasons) but it is more nuanced a doctrine than the Khieu defense lets on. In fact, describing it in the manner Arthur Vercken did is “laughable,” to borrow the Noun defense’s favorite word when it speaks of the prosecution's performance.

The Khieu defense had a fleeting moment of clarity by being absolutely correct that the scope of this case does not include the allegation of enslavement. This moment extended to -- unlike the Noun defense who matter-of-factly stated that killing over 200 on an accusation of being a spy was not “that many” -- the Khieu defense indirectly correcting the Noun defense by saying that “one victim is one too many.” Then the moment of lucidity was gone not to soon return.

It is at this point that the Khieu defense launched a personal attack on the international side of the prosecution at the level of malice and malign unprecedented at this or other tribunals (at least to the best of my knowledge). First, Vercken characterized the international side of the prosecution as not understanding what is taught in the first year of law school. The international side of the prosecution is, for the most part, an Anglo-Saxon affair, with its members appearing to have made a conscious effort not to learn the Cambodian criminal process. With the latter having a French parent, Vercken’s frustration is understandable to a certain degree. What is impossible to understand is the second statement in that string: The members of the international side of the prosecution are “tourists on vacation in Cambodia, backpackers who wanted to extend their stay in Cambodia and who wanted to make a few dollars by donning on their purple robes.” I cannot begin to describe how nuts this statement is except to say that what you feel when you hear it is aptly described by the German word ‘fremdschamen’ (which does not exist in English). Besides being wildly inappropriate in the courtroom, the record of the international side of the prosecution’s work absolutely does not warrant this characterization, however some of its members might have gotten to Cambodia and however they might have found their way into this court. Statements like this add nothing to the KS defense’s arguments. They are nothing more than pre-bar brawl insults that are suggestive of the defense’s desperation.

After this the Khieu defense sharply descended into complete foaming-at-the-mouth incoherence that was made up of a babble containing Jacques Verges’ favorite quotes of Talleyrand, B-52 pilots’ thoughts, children drawn and quartered by the Lon Nol regime, a slaughter of the Vietnamese by the same, and so much more (it makes one wonder what Vercken sees in the Rorschach inkblots).

The Khieu defense then proceeded to accuse the prosecution of pandering to the public which is ironic considering that there is no doubt that the Khieu defense was aware that the psychotic rant described here would not win them any legal points but might sway some members of the public.

Then the KS defense engaged in the following oxymoron: It stated that the court was nothing more than a theater while pandering to the Cambodian part of the bench by saying that they trust them as much as they trust the international judges. Wouldn’t it be logical to conclude that if the court is in fact a theater none of the judges should be trusted? Further, what is the source of this newfound trust in the Cambodian part of the bench? What ever happened to the KS defense persistent statements that the Cambodian judges of the court were controlled by the executive and therefore could not be trusted to guarantee fair trials? It is true that Verges was not in the room but it surely felt like he was (I am sure Vercken will take this as a compliment, even though it is not meant to be one).
After the break the Khieu defense snapped out of the barrage of insanity of the morning (perhaps, the magic powers of agua fria) it had laid on the unsuspecting audience. As part of this snapping-out, the Khieu defense showed a video interview with Sihanouk who clearly and unequivocally stated that during his visit to the zones “people were not unhappy and they were not famished.” It is obvious that he has made statements to the opposite since. This speaks volumes to Sihanouk’s character but there are two problems with this video: (1) Sihanouk has never been examined by this court (not the defense’s fault but that of the bench) which puts this video in the same category as Teth Sambath’s videos, i.e. evidence that is to be assigned little or no weight; and (2) Sihanouk’s contradictory and mutually exclusive statements about what he saw between 1975 and 1979 mean that some of them are a lie; Sihanouk has lied about so many things so many times and to so many people that it is impossible to tell which is which anymore, to paraphrase the judge’s finding in a recent British case (unrelated to Sihanouk). The moment of sanity hit the skids when the Khieu defense blurted it out – doubtless for the benefit of the gallery, rather than the bench – that Sihanouk would have been convicted, had he been brought to court. Maybe, maybe not, but what is important is why does this matter when Sihanouk is not the one on trial? (Vercken can write academically  -- that is provided he does that and not merely criticizes others who do write -- on whether he should have been but there is no room for this debate given the confines of Case 002/01).

After another bout of what looked and sounded like an epileptic seizure-induced rant, Vercken was back to sanity with a statement that the bench did not permit an examination into the provenance (as a sidebar, why use a meandering description if there is a word exists in both English and French in the same form?) of the documents adduced as documentary evidence. It is true that the court should have cut through Youk Chhang’s mesh of balderdash of the originals being hidden in different parts of Cambodia for security reasons (yet another candidate for Rorschach) for they could not have been made available to the court. I am in agreement with the KS defense on this as it seems that al-Bukhari did a better job of establishing provenance of ahadith before they were entered into his sahih in the 9th century than this court has done in this one.

After this there was more on the French lawyers not being able to read English, perhaps, as an in memoriam to Jacques. This is when another moment of clarity came. It came in two parts. One, the KS defense stated that the purpose of this court was to determine criminal responsibility and not to foster national reconciliation or advance any other purpose. Amen to that. Someone else – other than me – had to say it to counter the avalanches of applesauce run to this effect by the prosecution, the civil parties and most frequently the bench. Two, the defense stated that the bench must be going into the evidentiary analysis it was then about to embark upon clear-eyed and absent all biases. Given the context of the last 35 years out of which these charges have arisen, this was a very much needed reminder.

Whatever is the cause of the mental condition Vercken is suffering from, it is apparent that it is contagious – his colleague Anta Guisse followed with much of the same rant Vercken kicked off. Some of the moments of clarity in that maelstrom of bile and insanity contained a reminder that it was important to be trying a man and not history.

It is at this point that the Khieu defense took on the evacuation of Phnom Penh. To this effect, we, once again, heard the argument that Khieu was not at the party center meeting where the decision to order the evacuation was taken. Noun supports Khieu’s version of events and the prosecution has not shown any reason (other than Ieng Sary's statement) why the bench should question this assertion. I am, therefore, comfortable accepting that Khieu was not at that meeting. This is a first step for the Khieu defense to dissociate their client from the evacuation of Phnom Penh. Important as it is, much more will be needed to get their client from within reach of all forms of JCE permitted by the Trial Chamber in this case. Then there was an argument of the CPK expecting to find US troops upon entering Phnom Penh (this statement is attributed to Sydney Shanberg). There are two problems with this. One, the source of Shanberg’s knowledge on the matter is unknown. Two, one would imagine that CPK would have numerous spies in Phnom Penh throughout the war and particularly prior to the city’s capture. It is unreasonable to imagine that these spies would not have reported the presence of US military personnel if there was any. This logic takes the wind out of the defense’s argument’s sails. Further, the Khieu defense said something new – or at least something I had not heard before – regarding its position on the evacuation of cities prior to Phnom Penh: It was a military necessity. The defense makes it sound as if that, in and of itself, shields their client from criminal responsibility. What is or is not a military necessity is only relevant as a matter of law. The rest is policy and nobody cares what it is called (not in this court anyhow). The only question to be answered here is whether the policy to evacuate, in and of itself, contemporaneously was a crime. The rest is irrelevant and blivit to this process.

Then there was a parade of the things we had heard throughout the process: A figurehead leader who had nothing to do with the military and who had no access to the decisionmaking power. This would have been all fun and games if the Khieu defense had found a way to explain what Khieu was doing at the numerous Standing Committee meetings (the defense does not argue that the Standing Committee did not wield the real power in Democratic Kampuchea) at which the prosecution successfully placed him. That is the chink in the Khieu defense’s armor so far as the ‘figurehead’ argument goes. The defense failed to offer the Chamber an explanation alternative to that of the prosecution as to why Khieu was present at the overwhelming majority of the Standing Committee meetings. From the evidence I have seen what is likely to have happened is that the very top was made up of the top capital-based people (Pol, Noun and Son) and top regional commanders (Ros and Sao) and then there were people like Khieu and Ieng who were seen more as bureaucrats, with neither the military notoriety (of Ros and Sao), nor the political and ideological prowess (of Pol and Noun; Noun does claim that he was not an intellectual and I believe him (nor was Pol); but what was of value at the time was his  and Pol’s non-intellectual understanding of communism – plain and simple – rather than Khieu’s head-stuck-in-the-clouds version of it)). Khieu nonetheless was in that room and there is nothing that the defense has done that has removed him from it. He was not a member of the Standing Committee and I buy that. This means he did not get to vote. Here comes a problem: The prosecution never told us how decisions were made, vote or no vote? One would think this would have been the one thing the prosecution would have made sure to get clear from the outset of the process. Yet, it is still shrouded in mystery. If there was a vote, more weight should be accorded to Khieu’s argument that he had no way of disagreeing; if there was not, then it opens a Pandora’s box of questions, like, did Pol make decisions on his own? Some or all? Did he make them with Noun? Had decisions already been made before the relevant Standing Committee meetings and the latter were simply there to rubberstamp the former and make an appearance that no one was cut out of the process? These questions are here because the prosecution dropped the ball on the most important thing in this trial – the Standing Committee and party center decisionmaking process. This would have given the Khieu defense room to maneuver, had they not wasted the allotted time on the psychotic rant instead.

Of no importance to the process, it was news to me that Khieu was known as ‘the Incorruptible.’ I really am not trying to draw parallels with the French Revolution.

The question of Toul Po Chrey oddly got off the ground with the Khieu defense’s prolepsis that Democratic Kampuchea did not sever diplomatic relations with the rest of the world but kept them with what it considered to be friendly countries. This was followed by an argument that DK did receive foreign aid, just not US aid which, in turn, was followed by a statement that the Co-Investigating Judges had found that not all DK policies were criminal. All these arguments militate in favor of the argument for development and that argument has much credibility. It, however, has nothing to do with Toul Po Chrey. Then the Khieu defense attempted to mount one of the weakest arguments yet: The argument against the very existence of movement of the people. It is ridiculous to argue against that but arguing within that could have been profitable (e.g. arguing that ordered relocation was not against the law at the time). With all its shortcomings on the question, the defense did correctly point out that the prosecution’s arguments regarding the same contain no hard evidence and revolve around the conjectural “had no way of not knowing” and “should have known.” The latter is a legitimate test in international law but the bench will be hard-pressed to find that the prosecution’s evidence satisfies it.

The defense is equally correct that Khieu was not chairman of Office 870 – whatever it was (as I pointed out earlier, after all these years of research and investigation we still do not know that) – during the temporal period of this case. Doun was and that is well established. The fact that Khieu took over after Doun was executed is of no relevance to this case.

Then the defense took on David Chandler and tried to impugn his relevant research for having said in court that his research in the 1980s would have benefitted from the information now available to the court. I do not know which of the two is dumber: This one or Koppe’s effort to belittle Short's work because the latter does not hold a Ph.D. or a professorial title. This is not to say that I entirely agree with all the conclusions made by Chandler; it is simply to say that it is nothing short of an act of arrant cretinism to dismiss the man’s entire body of work for having made the above statement.

And, voila, by some miracle the Khieu defense brought us back to Toul Po Chrey (by this point in their presentation they had made me forget which way was up for having done an outstanding disorientation job). They open with an argument that the shells found in the dirt of Toul Po Chrey (it is quite an area) were from the heavy fighting that took place there. I might have missed this during the hearing but I do not recall the defense showing that there had been heavy fighting in that particular area. Without a showing of this, their argument is without merit. With a showing thereof, it would rise to the level of the prosecution’s story of what happened and, to me, would be entitled to the same weight. It is very hard to understand why this clowning is happening, however. I am not a ballistics expert but I do know that there are plenty of ways of telling whether the shells came from an execution or combat (for one, if they are from an execution, there will be a pile of shells in a small area; if they are from combat, they would be spread around thinly and found across a much larger area as, presumably, there would have been fairly rapid movement in the course of the battle; of course, to determine if there was, one would have had to find out if in fact there was a major battle in the area and, if so, then recreate its particulars; this would have been the math; what has happened in the course of this trial has been numerology, i.e. a bunch of lawyers and investigators sitting there looking at shells and pulling stories about them out of the blue sky that suit their version of the events)). I castigate the prosecution’s investigative effort on this below, but the quality of the defense’s one hardly deserves a more generous evaluation, even though their job was simply to raise doubt about the correctness of  the prosecution’s story.

Then there was poetry again. It seems to have some erudite lure for all parties involved. Kind of like quoting Hafez is for the speakers of Persian/Dari – it is beautiful stuff, I just do not know what to do with it at law.

Then the defense argued that the prosecution produced no telegrams related to Toul Po Chrey. That is true, they did not. Much time was spent earlier in the process on the lines of communication but I do not recall that it was ever established that telegram communication existed at the time of Toul Po Chrey and that it existed between the party center and the Northwest Zone in particular. It is possible that I missed that but it was the defense’s job to remind me – and everyone else – where it was established that there was telegram communication at that time. Without this being established, an argument that there were no telegrams to this effect is hollow (if there was no telegram communication, they would have been no telegrams on any subject, but communication would have taken place through another medium).

The defense is, however, correct that when it comes to Toul Po Chrey the prosecution’s case is built on inferences, not evidence. It will be hard for the Trial Chamber to find otherwise in good faith.

The defense claimed that Khieu was out of the country when the subsequent evacuations were ordered. From what I have seen there appears to be sufficient evidence that he indeed was out of the country during that period. The prosecution failed to find a creative way of linking him to the subsequent evacuations or to show that the planning of these evacuations had taken place prior to his departure and that he was a part of it. Consequently, the defense has the upper hand on this one.

The Khieu defense closed with another prolepsis stating that by calling the entire country a concentration camp the prosecution was reaching for JCE III which the Trial Chamber specifically excluded from this process. Maybe this is not a prolepsis on the part of the defense and maybe this is where the prosecution was going with its ‘prison without walls’ poetry. I do not see how specifically but it is conceivable that once the prosecution gets the court to make a finding of something like this, the floodgates will fling open wide.

This ended the Khieu defense’s presentation, much of which was a discombobulating rigmarole. The much needed relief from fremdschamen flowed onto the audience like a cool breeze on a hot day. This respite would only last until the rebuttal, however, at which point much of the insanity of this presentation would be revisited.