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, 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.  


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