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.