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.  

Tuesday, November 12, 2013

"Soap Opera" Executions v Toul Po Chrey Executions

North Korea is the closest thing we currently have to what Democratic Kampuchea was between 1975 and 1979. The below is nothing more than a South Korean newspaper ventilating a rumor but even that rumor claims to be based on an account of an eyewitness (albeit one but nonetheless an eyewitness). There is very little that is available to either prove or disprove this allegation, except the common perception in the West that something like this would not be out of character for the North Korean leadership. This is very close to how much we know about the alleged executions at Toul Po Chrey. This is very odd for very distinct differences exist between what I call the "Soap Opera" executions in North Korea and the executions at Toul Po Chrey -- (1) North Korea is still a very much closed society; Cambodia is not; (2) The government in power in North Korea today is the very government that has allegedly perpetrated the "Soap Opera" executions and is therefore, by definition, interested in covering them up; in Cambodia, the government of the day is not the same government as the one that allegedly perpetrated the Toul Po Chrey executions; in fact, the government of the day is the one that brought prosecutions against the government that allegedly perpetrated Toul Po Chrey; and (3) No international investigation of the "Soap Opera" executions has been conducted; 7 years of well-funded investigation by two entities of a court with significant international participation has been conducted regarding the Toul Po Chrey executions. The upshot: We know little more about the allegation of Toul Po Chrey executions than we know about that of the "Soap Opera" executions (if anything the latter, unlike the former, allegedly has an eyewitness) and all we have to rely upon is our general perception of the character of the leaderships of Democratic Kampuchea and North Korea respectively and our perception that that character is generally capable of executing people for watching a particular TV show .       

N[orth] Korea "executes 80 people, most for watching foreign TV shows"

NORTH Korea publicly executed around 80 people earlier this month, many for watching smuggled South Korean TV shows, a South Korean newspaper reported Monday. 
The conservative JoongAng Ilbo cited a single, unidentified source, but at least one North Korean defector group said it had heard rumours that lent credibility to the front-page report.
The source, said to be "familiar'' with the North's internal affairs and recently returned from the country, said the executions were carried out in seven cities on November 3.
In the eastern port of Wonsan, the authorities gathered 10,000 people in a sports stadium to watch the execution of eight people by firing squad, the source quoted one eyewitness as saying.
Most were charged with watching illicit South Korean TV dramas, and some with prostitution.
Several of the cities, including Wonsan and Pyongsong in the west, have been designated as special economic zones aimed at attracting foreign investment to boost the North's moribund economy.
The Seoul-based news website, Daily NK, which is run by North Korean defectors and has a wide network of sources, said it had no information on the executions.
But another defector-run website, North Korea Intellectual Solidarity, said its sources had reported several months ago on plans for a wave of public executions.
"The regime is obviously afraid of potential changes in people's mindsets and is pre-emptively trying to scare people off,'' said one website official.
Watching unsanctioned foreign films or TV - especially those from the capitalist South - is a serious offence in North Korea.
However, efforts to control their distribution have been circumvented by technology, with an increasing number of foreign films and TV shows being smuggled in on DVDs, flash drives and mp3 players.
As well as South Korean soap operas, US shows like Desperate Housewives are believed to have a small but avid following.

Monday, November 11, 2013

Closing Statements: Prosecution

The prosecution sought to prove a wide range – too wide a range – of aspects of Democratic Kampuchea in Case 002/01 believing this might be their last chance to prove anything about Democratic Kampuchea. What they did have to prove in Case 002/01, however, boils down to this: (1) the evacuation of Phnom Penh and the subsequent removals were criminal + the accused either directly ordered them or can be seen as having ordered them through the mode of liability known as Joint Criminal Enterprise (invented by the ICTY) and had the intent of committing a crime; and (2) the mass execution of Khmer Republic officials took place at Toul Po Chrey + the execution was criminal + the accused either directly ordered it or can be seen as having ordered it through the mode of liability known as Joint Criminal Enterprise and had the intent of committing a crime or are responsible under the doctrine of command responsibility. The prosecution had to prove nothing else within the confines of Case 002/01 and everything else they did try to prove bears either only circumstantial relevance to the case at hand or not at all.


I will start with the evacuation and subsequent removals. First, the prosecution had to prove that the evacuation of Phnom Penh was a criminal act per se (because without a legal basis establishing it as a crime in law there is no merit in arriving at any finding of fact). The prosecution lavished us with all sorts of epithets it attributes to the evacuation of Phnom Penh but never told us the one important thing: Under what law, national or international, was it criminal. The prosecution tells us the evacuation was a crime against humanity but it does so without citing any law. The prosecution also tells us that “[t]he evidence does not establish any legitimate reason under international law for the evacuation of Phnom Penh.” There is a set of legitimate reasons for ordering evacuation in international law? Maybe the prosecution could enlighten those of us who are dwelling in the darkness and away from the light of international law as to the origin and content of this set of reasons, as well as the line of cases that establishes it in the law. That the prosecution did not do and until it does that any argument of illegitimacy (legitimacy is not a criminal court’s concern; legality and lawfulness are) put forward by the prosecution will be nothing more than a policy debate between someone who has never run a country or been a part of policymaking of any kind (Will Smith and Chea Leang) and someone who has done both (Noun Chea and Khieu Samphan), where the disagreement of the former with the latter means absolutely nothing to the law and should mean nothing at all. Then the prosecution tells us that the evacuation was criminal because the population of Phnom Penh was not permitted to return to their homes after. I am not saying that the fact of prevention of the return, if proven, cannot give rise to a crime; I am simply saying that that crime is not evacuation (provided evacuation is a crime per se). The prosecution is, however, correct about the April heat, lack of motorized transportation and the immensity of human suffering during the evacuation. My empathy goes out to the evacuees for these reasons and that empathy has our shared humanity as the source. This, however, does not mean that I believe that it is or should be within the prosecution’s remit to invent a new crime on that basis. Second, the prosecution has convincingly proved that the evacuation of Phnom Penh was an event ordered by the party leadership. The prosecution equally convincingly proved that Noun was at the meeting where a decision on the evacuation was made (this did not require any work from the prosecution as Noun testified to his attendance). However, there is a divergence of opinion on whether Khieu was at that meeting: Noun and Khieu say that he was not but the prosecution says that he was. The only supporting evidence proffered by the prosecution to support its position was late Ieng Sary’s statement to the Co-Investigating Judges. If it can be entertained that Ieng and Noun’s statements cancel each other out, the prosecution is left with Khieu’s statement and zero documentary or testimonial evidence of his attendance. Not a good situation for the prosecution to continue supporting its position from. With this said, regardless of whether the prosecution can prove that Khieu was at the meeting where a decision on the evacuation of Phnom Penh was made, the prosecution does have convincing proof that he followed the progress of the evacuation subsequently (the prosecution has convincingly placed him at B-5, the office from which the evacuation was run), whether he was at the meeting that ordered it or not. Third, the prosecution needed to prove that by ordering the evacuation of Phnom Penh the accused intended to commit a crime (mens rea). To show this the prosecution would have had to establish that evacuation was a crime under national or international law in years 1974 and 1975 and that the accused had reasonable facility to be aware that it was a crime or that the accused wrongly believed it was a crime. The prosecution offered no arguments in support of either. As such, if evacuation per se was not a crime during that period and the accused did not see it as a crime, the prosecution is not merely on thin ice here but is already flapping its arms in the freezing cold water. To my knowledge, there is no contemporaneous law that establishes evacuation per se as a crime (deportation was a crime by then; if the prosecution is equating one with the other I would like to hear an argument to that effect) and I have not seen any documentary or testimonial evidence that while ordering or conducting the evacuation the accused were aware that it was a crime under the law (in the same manner as the US, for example, was when it was knowingly and willfully breaking the law (an arms embargo) by smuggling weapons into Bosnia and Herzegovina through a black op and with the help of jihadist groups during the Yugoslav Civil War)). The prosecution argues that the evacuation was devoid of legitimacy for it was ordered for no other than the following two reasons: (1) not to let the enemy destabilize CPK; and (2) not to let the Phnom Penh urbanites corrupt the CPK cadre (had the prosecution been aware of Robespierre's (or was it Saint-Just's) proposal to evacuate Lyon (this is a faithful paraphrase of the proposal: Evacuate Lyon and disperse its population to every corner of France to have them learn from the revolutionary masses) as a form of reprisal and the fact that Pol Pot learned the particulars of the French Revolution when he was living in France, they would have developed a theory that Pol Pot intended to carry out Robespierre's plan (evacuation of Lyon was never ordered, even though other forms of reprisal were inflicted on the defiant city) or emulate the evacuation of Vendee that did occur and was a form of reprisal)); the accused disagree that either was a consideration for the evacuation. But, as discussed previously, this is a matter of disagreement on policy, not application of the law. Finally, the prosecution asserts that the evacuation was not ordered to benefit the people. I am troubled by this conclusion. The manner in which it was carried out is doubtless lamentable but I do see how it immediately follows from that that there was no benefit in it for the population. Let us assume that I buy the prosecution’s argument that the purpose of the evacuation was none other than preserving the integrity of CPK (which is not a bad argument but then nor is the argument to this effect from the other side; there simply has been nothing in these proceedings to serve as a tie-breaker for me on this), and not any of the humanitarian or security reasons the accused have put forward. Let us say that the prosecution is correct that the other fold of the purpose of the evacuation was to put the entire population to agricultural production. Even if that were unimpeachably correct, why does it mean that the evacuation was not intended to benefit the population? Is the prosecution suggesting that the entire population was being put to work to maintain the lavish lifestyle of the CPK leadership, as opposed to producing means of sustenance for itself? Unlike the civil parties, the prosecution did have credible Democratic Kampuchea historians on staff and they do know better than arguing something like this. What then? Does the prosecution’s position have roots in the argument that being a permanent client state (which is what Cambodia is today and has been every single day since CPK was deposed) that serves many masters is better than the nationalist idea of striving for true sustainability and independence? The prosecution tells us that while there is a Stalinist tenet that the ends justify the means this tenet cannot be accepted by a civilized society. A very interesting theory of supremacism of political ideology but even if I agreed with the prosecution on this, how would the accused have been able to know that this tenet was not accepted by a civilized society in the world of the 1970s when half the population of the world was following some form of it? Would this not work towards opinio juris insofar as establishment of relevant rules of international law is concerned? I have no trouble with the prosecution picking a side in this argument insofar as this side-picking is confined to political science and is kept out of the law (if that is the case what is it doing being voiced in a court of law then?). Now, the April 1975 evacuation, as it is understood by this court, is not confined to the removal from Phnom Penh but has placement in the villages (the prosecution keeps calling them ‘cooperatives’ which would be fine but for the fact that cooperatives were yet to be established in many parts of Cambodia at the time of the evacuation) and placement to agricultural production as its elements. The prosecution pulls out the biggest – but not necessarily the fastest – guns on this and calls it ‘slavery’ (those more poetically inclined will do well by reading the prosecution’s blood and eyes attempts at atrocity poetry). Once again, the prosecution is packed to the brim with lawyers and it would be most helpful to find out under what legal definition the placement in villages and to agricultural production was slavery. Without knowing what the prosecution’s legal definition of choice is, the prosecution’s use of ‘slavery’ reminds me of the attempts at bombast at every corner at the People’s Revolutionary Tribunal of 1979. Even if the prosecution were allowed to debate the soundness – rather than legality and lawfulness – of policy in court, what would it recommend as an alternative to what was done? The State providing the evacuated Phnom Penhites with food from its non-existent granaries to ensure that the evacuees had the option of not doing any agricultural work? Or, would it be having the indigenous population of the villages work to feed the idling evacuees? Would the prosecution like to show a single example of where this was done this way in a country that resembles the circumstances of Cambodia circa 1975 (Russia and China circa 1920-1940)? The prosecution blares in with “[t]he accused were the masters and the population was their slaves.” Again, this is very strong rhetoric but where is any substantiation of the use of the term ‘slavery’ for it (the prosecution had numerous other terms available to it, with forced labor being but one; it chose to eschew many obvious and less obvious options and go for ‘slavery;’ the why is not hard to answer; it is the how that perplexes me)? Insofar as the knowledge and ordering of assignment to labor of the evacuees it appears that the prosecution has only managed to make a circumstantial case against the accused: It is the prosecution’s argument that (1) Democratic Kampuchea was centrally governed and tightly controlled by the national government; (2) the accused worked closely together and were at the top of the Democratic Kampuchea government; and (3) if the evacuees did not volunteer to work, someone must have assigned them to it and because the State was centrally governed and tightly controlled by the national government it would have had to be the national government of which the accused were key members. This is not a bad logical argument but it must be noted that it is not the same as this theory being proved by evidence, whether documentary or testimonial. Then there is the starvation across the country. The prosecution has convincingly proven that Khieu was in charge of the rice exports. That is a good start. This, at a minimum, means that he knew how much was being exported. This is where the prosecution should have shown two other things: (1) that it was within his remit to know how much was being produced; and (2) that it was within his remit to ensure that what was left was sufficient for the population’s nutrition. I did not hear or see an argument to the effect of either. One would imagine that the cooperative and district authorities would be in charge of calculating something like that and if they said that their cooperative or district had a certain amount of rice to export I do not believe the central government was in any position to determine whether their calculations were made with the population’s nutrition in mind. Now, it would be an entirely different story if the prosecution had shown that the central government specifically enjoined all smaller administrative units to ensure that a certain amount of rice was available for export regardless of the circumstances of the particular administrative unit (as there is evidence that in the Russia of 1918-1920 wheat was requisitioned in the countryside by gangs of city dwellers ordered into existence by the central government or as the Soviet government beginning to export wheat for reconstruction money while still accepting international famine relief in 1922-23). Had the prosecution shown that, they would have had a shot at proving that the central government acted in absolute disregard of the nutrition of the population creating conditions that could have no other outcome than starvation. Instead, the prosecution cites such untenable testimony as “all rice was exported” (how could anybody have survived if all rice had been exported?) and that the ration was one can of rice per 40 people per day (the prosecution likes throwing the word ‘lie’ around; this would be a good place to apply that word; no one would have survived, had that been the ration; with all due respect to the extreme hardship suffered by many during that period, one can of rice per 40 people per day is nothing more than yet another piece of urban legend that has flourished in Cambodia in the past 35 years; the prosecution’s repeating of it greatly undermines their credibility). With that said, the prosecution did adduce documents that attest to food shortages at least in some parts of the country. They equally attest to a 15-hour work day at least in some part of the country. The prosecution also submitted testimonial evidence that Khieu had taught punishment for “breaking needles and being sick.” It also submitted that Khieu taught restriction of movement and weaning the April 17 people away from their feudalist ways. All this suits well to attesting to the staggering amount of control the central government sought over the population but it does not assist the prosecution’s argument of central government-engineered starvation. Both of the accused deny that there was starvation, albeit Noun admits that there were some problems in the cooperatives right after April 17, 2013 but that there were resolved shortly after. The prosecution believes that to be a lie. It might well be a lie (considering the fact that Noun vocally and repeatedly denied the existence of S-21 throughout the 1980s his credibility is very low and any of his claims might well be a lie; that said, the prosecution does not get to pick and choose which statements of his it considers to be “rare moments of candor” simply based on the fact that they fit with the prosecution’s argument) but the prosecution has failed to put together a compelling case (which they have done with some of their other positions) to show that it is. The prosecution adduced numerous telegrams but none of them contain anything that would convincingly show that the central government kept extracting rice from the cooperatives in the face of numerous reports of starvation and death thereof. The allegation of knowingly and willfully denying the population nutrition is a very serious one and the prosecution had the burden of adducing very serious evidence to prove it. I do not see evidence rising to that level (this does not mean it did not happen; this simply means that the prosecution did not make its case for it); all I see is thin evidentiary soup (‘potang bobo’ to coin a term in Khmer) on this.  


Now, on to Toul Po Chrey. First, the prosecution had to prove that the execution of Khmer Republic officials did take place at Toul Po Chrey. The prosecution alleges that thousands of people were executed there on a single day. This is a massive undertaking. The prosecution has adduced documentary evidence of central government directives regarding such relatively insignificant events  as fortifications at the Thai border and yet there is nothing on a massive event that the prosecution alleges had taken place at Toul Po Chrey. The prosecution adduced documentary evidence of an event where a kerosene lamp set a boat on fire and the punishment meted out to the persons who were held responsible for the mishap, and yet they did not adduce a single shred of paper that attests to a mass execution at Toul Po Chrey. The prosecution offered no convincing explanation as to why this is the case. Somehow it should make sense to us that while imprisoning and torturing two people over the kerosene lamp accident merited a report all the way to the central government, the execution of thousands did not. The prosecution tells us that that is because the execution of Khmer Republic officials was a matter of policy, insinuating that it did not merit a report for that reason (in other words, it was mundane while a kerosene lamp burning down a boat was rare). I will get back to this later. For now, let us take a closer look at what the prosecution alleges had happened at Toul Po Chrey. Thousands of Khmer Republic officials were gathered from all around the country (or at least areas reasonably immediate to Phnom Penh), not just Phnom Penh, duped into believing that there were being taken to see Norodom Sihanouk to get promotions in the rank. Instead, they were taken to Toul Po Chrey (northwestern Pursat) and executed. And this is where it all begins. I have trouble processing how thousands of military and civil servants believed that after fighting the Sihanouk-supported Khmer Rouge on behalf of the government that ousted Sihanouk in a sneak coup d’état and now having been defeated after four years of war they would be promoted by Sihanouk to a higher rank. It is a simple question and the prosecution does not provide an answer to it. But, I will not harp on that and move ahead on the assumption that the civil service of the Khmer Republic was staffed with unconventionally and exceptionally gullible individuals who had trouble understanding that, usually, the vanquished are not lavished with benefits for having fought the victor. Events like this do not simply happen. They require a certain amount of preparation. The idea for them either comes from the central government or approval of the central government is sought. Whichever happened here, the prosecution has found no documentary or testimonial evidence of it. A decision is made at the top; the prosecution found no evidence of that. After a go-head is secured, the plan goes into motion and starts being communicated to more and more people in the movement oft-broadening the circle of those in the know to thousands. The prosecution did not produce a single witness of that dissemination (it is usually substantially clear to these individuals what they have been ordered to do). Due to this we do not know what order was given and by whom (were the lower-ranking Khmer Rouge lied to or were they told ‘round up the Khmer Republic traitors and tell them they are going to be taken to see Sihanouk,’ with an understanding that this is what you tell “them”). But let us leave that aside for now. Let us instead focus on what it would have taken to pull off an event like this logistically. First, centers in and around Phnom Penh would have had to round up Khmer Republic officials. Second, they would need to be kept in those centers (to prevent their disappearance into the evacuating crowds) until the centers got a go-ahead on their transfer and could organize the transfer from the logistical standpoint. Then a single location would have to be picked to send all these people to. Multiple trucks would have to be secured to transport them to that single location. All along, there would need to be numerous cadre putting these people at ease to ensure that they pose no security threat to the Khmer Rouge. Before they are brought to the single location a sizable number of cadres would have to be brought there to secure it in anticipation of security incidents. Finally, an execution site would need to be picked away from the watchful eye of the population. Once at the single location, the Khmer Republic officials would need to be fed (not because their nutrition is of any importance to the Khmer Rouge but simply to show that there is nothing going on that is out of the ordinary). Multiple teams of executioners would need to be put in place at the execution site. Multiple trucks would need to be pulled away from other pressing needs to transport thousands of people to the execution site. Now, how many teams of executioners had to be in place to murder thousands of people on the same day? We are told that during the Katyn massacre the few dozen (about 30) Soviet executioners reported having trouble dispatching 390 Polish prisoners on the first night of the massacre. There are reports from other massacres where the executioners numbered in hundreds and at times thousands and machine guns and creative methods of murder were used to dispatch thousands of people in a single day. There is no reason to believe that the Cambodian executioners knew of a particularly efficient method of execution their Soviet and German counterparts were not aware of. This means that, if the prosecution’s number of Toul Po Chrey victims is correct, there were hundreds of executioners to finish the job in a single day. Where did they all go? I am asking this because the prosecution has failed to come up with a single executioner. Cambodia is not India and if Teth Sambath – with the resources of one dedicated man – claims to have been able to locate at least one of them, why was the prosecution – with all its resources – unable to come up with a single one of them as a witness? Instead, the prosecution presented us with the witnesses whose testimony I would summarize as follows: They saw some trucks taking some people somewhere in northwestern Pursat somewhere around the time the prosecution claims the Toul Po Chrey massacre was perpetrated, with the prosecution’s star witness being someone from a film (by Teth Sambath) who never testified in court and whom the bench had no opportunity to examine and whom the accused had no opportunity to cross-examine. Those dozens of trucks were driven by dozens of drivers and guarded by, perhaps, dozens of others, and yet the prosecution was unable to locate any of those people and have the court summon them to testify. There is another aspect of the prosecution’s Toul Po Chrey case that is curious. All the German and Soviet massacres I am aware of have at least one survivor who has since become known to the academy and the public. There is not one German or Soviet massacre I am aware of that has zero known survivors (and we are talking of massacres some of which were committed in the confines of a building where victims were taken through a narrow corridor and shot individually). Not one. The prosecution has failed to locate a single person who made it out alive from Toul Po Chrey. Not one person who jumped out of the truck when he heard gun shots from where his truck was headed; not one person who got wounded and played dead until the executioners left; not one person who broke loose and ran off into the forest. Not one person. The prosecution seeks to have us believe that in a country where little happens on time, where the first 300 attempts at anything never get it right, where attention to detail is not part of the national psyche, the executioners of Toul Po Chrey did such a thorough job that none of their victims survived. Thousands of executions would have left piles of corpses (unless the prosecution seeks to argue that numerous deep ditches had been prepared before or that each victim was forced to dig a shallow grave for himself) stewing in the brutal sun of the hot season with stench wafting for miles down the wind piquing the locals’ curiosity about its origin. Yet, the prosecution did not come up with a single local who would testify to the stench or would have made a trip to the origin of the stench to find piles of dead Khmer Republic officials. Bulldozers allegedly came sometime shortly but not immediately after the alleged massacre. They doubtless were driven by someone. The prosecution failed to find any of the drivers. All this is very suspect as the Toul Po Chrey of the prosecution is unlike any other massacre I am familiar with. It compels only two explanations: (1) the prosecution did a shoddy job; or (2) Toul Po Chrey did not happen. Finally, the Documentation Center of Cambodia has been around for almost 20 years now and has spent over $70 million running itself during this period. If Toul Po Chrey is what the prosecution claims it is, why was it never excavated? Why was no evidence regarding it ever collected (ironically, after those $70 million the best evidence we have came from Teth Sambath’s movie). Why was no forensic analysis conducted either by the prosecution or the Co-Investigating Judges? Why is the prosecution instead relying on its staff’s toddle around the area that brought up some fabric and bone meal of unknown origin as some Bizarro World forensic evidence? Is this seven years of investigations talking? This is absolutely ridiculous. Instead, the prosecution’s story is hinged on two things: (1) systematic execution of Khmer Republic officials; and (2) an assertion that none of the Khmer Republic officials who had been called to go see Sihanouk ever came back. The systematic execution would have been strong circumstantial evidence but at what point in the trial did the prosecution establish that? The latter was proven -- without anyone even trying -- to be a false assumption in court: It was shown that at least one Khmer Republic official did come back. Overall, the prosecution’s story of Toul Po Chrey is poorly crafted, based on very little evidence and much runaway imagination. And I believe the prosecution knows that.

With this said, Toul Po Chrey probably did happen, in some form and not necessarily in the way the prosecution describes it or, perhaps, not even in the location to which the prosecution attributes it. Brutality against a vanquished enemy is not generally out of character for what we know about the Khmer Rouge or any other communist movement. But, this is not a medieval Shari’a court where the qadi assigns criminal responsibility to the greater degree on the basis of the accused’s reputation in the community (which is what the prosecution has often tried to do here). It is a modern civil law court that places the onus of proving the crimes charged in the indictment on the prosecution. And the prosecution failed to discharge that onus regarding Toul Po Chrey. There are simply no two ways about it. It is a shame as the prosecution had both the time and the resources to build a solid case.

Second, the prosecution had the burden of showing that the execution at Toul Po Chrey was criminal. For one reason or another, the prosecution never attempted to do so. Third, the prosecution had to show that the accused either directly ordered it or can be seen as having ordered it through the mode of liability known as Joint Criminal Enterprise and had the intent of committing a crime or are responsible under the doctrine of command responsibility. Given that the prosecution presented neither documentary, nor testimonial evidence to support its theory it chose to rely upon the least reliable of sources: The prosecution’s own assertion that nothing ever happened in Democratic Kampuchea without the accused ordering it or consenting to it. This was complimented by the prosecution’s character attacks (I am not saying that the accused’s credibility is not wide open to attacks; what I am saying is that the prosecution went far beyond their credibility) on the accused, most ofwhich came from a single source (what would the prosecution do without Teth Sambath’s movie of which they had not found out until after it had been on TV for about a year; it is better than the Noun defense, though, who did not find out about, perhaps, the key piece of evidence against their client until the prosecution told them it existed). There is no doubt that it is hard to believe this is the prosecution’s proof but this is the applesauce the prosecution presented this court with. 

One thing that is important to remember is that this process is not about what did or did not happen during Democratic Kampuchea (historical inquiry is about that and a truth-and-reconciliation commission would have been about that) but what the prosecution can or cannot prove.       

Tuesday, November 5, 2013

KR Tribunal Must Explore Options for Future


Officials at the Khmer Rouge tribunal must act quickly regarding the future of the court by either committing to a second “mini-trial” or risking “an ignominious end” that would undermine its efforts to date, the George Soros-funded Open Society Justice Initiative (OSJI) has said in a new report.
Hearings in the first segment of Case 002, which was split into smaller trials to try to secure a conviction against the two ailing top leaders of the Khmer Rouge regime, wrapped up last week with a verdict expected next year. A date has not yet been set for the start of the second mini-trial.
Central to the OSJI report, released Sunday, are issues of timeliness and money—compounded by a lack of transparency—which the organization said could see a subsequent trial scrapped before its completion.
“If [the U.N. and senior court officials] do not step up, two grim alternatives present themselves: either the court will limp along until there is an embarrassing blow-up that results in it winding up its operations in disgrace,” the report says. “Alternatively, it could enter an equally embarrassing state of limbo, with staff and judges leaving because the donors stop funding without actually making a decision about how to preserve the benefits of the court for Cambodians.
“Both of these consequences can and should be avoided by ending the current stalemate with proactive planning and honesty.”
A three-day Trial Management meeting on how to proceed has been scheduled for December 11.
“At this late stage, it appears that very little planning has taken place, partially because it remains unclear if the court will proceed with the second trial,” the OSJI said, adding that despite the upcoming meeting, “it is clear the court is a long way from being ready to start a second phase trial in the case.”
The OSJI said that while every effort must be made to ensure the court’s mandate—which actually spans four cases, two of which the government has repeatedly said it opposes—“concerns about whether that is feasible or practical have been raised.”
The age and health of Nuon Chea, 87, and Khieu Samphan, 82, need to be taken into consideration alongside the need for any future trials to be carried out in an expeditious manner, the OSJI report says. Their current trial took two years to complete.
The funding situation at the hybrid U.N./Cambodian court also needs to be assessed, the OSJI said. National staff have gone on strike twice since January after going unpaid for some months—a situation exacerbated by government claims that it could not uphold its side of the deal to establish the court by paying the salaries. Last month, the government said it would fulfill its obligations to pay the national staff through the end of the year.
“The donor states and the Government of Cambodia have not made a reliable commitment to adequately fund the court through a second Case 002 trial,” the OSJI said.
“If they are not willing to do so, they should say so honestly now and avoid the travesty of a trial that stops midway before its natural conclusion because of a lack of funding.
“The judges, the court administration, the U.N. and the Government of Cambodia should immediately explore options so that valuable work already done by the court is not lost should its operations be cut short, either because of the death of accused persons or because the donors decline to fund the court further.
“These processes must be as transparent as possible. If a decision is made by the donors, the U.N. and the Government of Cambodia that the trial should not go forward for political, practical or financial reasons, the parties must honestly say so immediately.”
The tribunal has so far cost about $200 million, and secured one conviction—that of former S-21 prison chief Kaing Guek Eav, alias Duch.
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