Civil Parties: The Rebuttal
The Civil Parties delivered somewhat of an uneven rebuttal.
First, the Civil Parties heavily relied on the testimony of
Duch whom they characterized as “ha[ving] no reason to lie” and as being “a
credible witness.” This extolment of Duch’s character is surprising, to put it
mildly, given it is attributed to the man who has been caught lying on numerous
occasions during and prior to this process. While declaring Duch “a credible
witness,” the Civil Parties had no trouble characterizing Noun’s testimony
regarding Khieu’s presence at the meeting where a decision to evacuate Phnom
Penh was taken as “not credible.” What the Civil Parties failed to do here is
to show the difference in character between Duch and Noun that would explain
why the former’s testimony should be taken at face value even regarding the
aspects of Democratic Kampuchea he knew little to nothing about (Civil Parties’
citation of Duch’s definition of ‘Angkar’ which “sometimes [meant] Pol Pot,
sometimes Noun Chea” and which is absolutely ridiculous given what we know
about the regime is a case in point; or the Civil Parties’ assertion based on
Duch’s testimony that ‘smash’ necessarily meant “kill people;” I do not doubt
that in Duch’s department it meant ‘kill people’ as he was in the business of
executions, but there is abundant evidence that in other milieus it did not
necessarily bear that meaning) whereas the latter’s testimony deserves no
weight even regarding matters of which he had firsthand knowledge (Khieu’s
presence at the meeting where the decision to evacuate Phnom Penh was taken and
where Noun was present).
The Civil Parties tell us that ‘evacuation’ is the wrong term
to describe what happened to the population of Phnom Penh immediately after the
CPK takeover of the city but ‘forced movement’ is. That is a fair point as
semantics does matter at law. However, what the Civil Parties should have
sought to establish during the trial was that the population of Phnom Penh was
ordered out of town at gunpoint and not by persuasion or individual or
collective perception of what might happen if they disobeyed the CPK’s
instruction. The Civil Parties have not done this. If the population of Phnom
Penh was indeed ordered out of town at gunpoint, ‘forced movement’ it is;
however, if it was duped into leaving the city, ‘forced’ will not obtain and
the Civil Parties will be in the market for a new adjective. Yet, the Civil
Parties tell us that the population was “deceived” and that the evacuation was
“forced movement” in the same breath. Unless the Civil Parties have some
creative way of arguing that at law that deception can be ‘force’ in ‘forced
movement,’ I see the future of their argument to this effect as bleak and the
Trial Chamber embarrassing itself if it chooses to agree with it.
The Civil Parties pummeled the defense for the
unsubstantiated argument that 6 days’ worth of food was left in Phnom Penh when
the CPK took over the city. I
would gladly hand the Civil Parties a bat for the job as the defense fully
deserves a severe beating for this one (if only we could bring back the qadi courts tradition where the judge
would get up and beat the bejesus out of the litigant who he thought was making
a bad argument). With that said, the Civil Parties offered no support for their
argument that the defense’s assertion was incorrect.
Noun denies being known as ‘Brother Number 2’ and there has
been much debate on the issue during the trial. While the Civil Parties believe
the defense’s lack of substantiation for the 6 days’ worth of food left
argument to be outrageous, they had no trouble weighing in on the Brother
Number 2 argument in the following manner: “Everybody knew [him] as Brother
Number 2.” Ah, the notorious “everybody knew” argument raises its ugly head
again. We are indebted to Chhouk Rin for this one and the prosecution’s utterly
shameless use of that part of Chhouk’s testimony.
The Civil Parties wanted Noun to answer whether “knowing what
he knows now he would do it again.” Perhaps a curious question for a different
forum but Noun is not an ordinary criminal and even if he answers this question
the way the Civil Parties want him to answer it, that will have no impact on
his sentence, if convicted – the circumstances of the crimes of which he stands
accused are extremely unlikely to come about in his lifetime and his personal
circumstances are not likely to allow him to participate in them. If the Civil
Parties are aiming at a statement of remorse, the numerous interviews he had
given before this process and his statements in court are suggestive of his not
being sorry. Do the Civil Parties want him to say he is sorry anyway even
though he does not mean it?
The Civil Parties commented on the defense’s statement that
the policy was to treat new people and old people equally with “equally as
slaves.” I have commented on the prosecution and civil parties’ use the term
‘slave’ on numerous occasions below and I have nothing to add to that. The
Civil Parties’ present statement did absolutely nothing to change my mind
regarding the prosecution and civil parties’ use of the term for reasons of
bombast, not legal characterizations.
The Civil Parties tell us that there is a crime called
“severely depriving of human rights.” I would have liked to see the legal basis
upon which the Civil Parties rest this statement but the Civil Parties offered
The Civil Parties discussed starvation in the cooperatives at
some length. I do not know if the Civil Parties meant to argue that starvation
began immediately after the city population’s arrival at the cooperatives.
Provided they did, they should have said so and substantiated their position.
If not, the question of what happened in the cooperatives is outside the scope
of this trial.
The defense got another severe beating on their argument of
people volunteering to keep relocating after the evacuation of Phnom Penh
(known by the inept term of ‘Second Phase of Population Movement’ that presumes
that there was a complex relocation plan – which was not the case -- that broke
into phases during which specific relocations were supposed to occur). A
well-designed and well-articulated counterargument that leaves the defense’s
theory to this effect in tatters.
The Civil Parties expressed indignation with Noun’s
persistent complaints that he was not afforded the presumption of innocence.
The Civil Parties dumbly decided to reply to these complaints with a statement
that Noun’s victims were not afforded presumption of innocence at all. A very
emotional but legally completely dumb argument.
The Civil Parties informed us that, in their opinion,
‘smashing’ and ‘re-education’ were one and the same thing and that it meant
execution. If that was the case, how would I know people in today’s Cambodia
who went through re-education during Democratic Kampuchea? Are the Civil
Parties suggesting that these people are lying to me for absolutely no reason? Or,
is it that they were the few survivors of the executions and yet for some odd
reason they never mentioned to me that they were executed? Are the Civil
Parties suggesting they forgot or are holding back on that while telling me
everything else that happened to them during Democratic Kampuchea in minute
detail? What the truth is here is that sometimes re-education meant a training
period in the CPK doctrine dumbed down for the masses; other times,
re-education meant that plus reassignment from a cooperative to a mobile
brigade (where labor and living conditions were tougher); yet other times,
re-education meant execution. The village cadre did not conduct re-education in
the sense of the first two but they did use the term in the third sense, i.e.
to take people out into the nearby wooded area and kill them. It is not hard to
imagine why the Civil Parties chose to focus on the third of the 3 uses of the
term ‘re-education’ but it makes for a disingenuous argument to have done so.
The Civil Parties want the Trial Chamber to admit untested
evidence. I have commented on the common lawyers at the court keeping failing
to grasp (thank you for perpetuating the stereotype that common lawyers can
never understand the civil law system) the Cambodian law’s approach that all
evidence is admissible unless otherwise provided by law. The lawyers therefore
do not need to keep asking the Chamber to admit particular evidence – all of it
that has been adduced has been admitted. It is the weight that the Chamber is
going to assign to each type and individual piece of evidence that the lawyers
should work towards. I do not imagine that this can be this difficult to
Other than Duch, the Civil Parties’ other star witness was
Francois Ponchaud. I understand that many of his statements from the witness
stand help the Civil Parties but is this in and of itself a credential?
Ponchaud – just like Al Rockoff – never should have been called as a witnesses
to begin with as he had absolutely nothing
of value to contribute. Ponchaud made sweeping statements and arrived at
conclusions based on absolutely nothing other than his own thinking. One
example of this is his statement, relied upon by the Civil Parties, which is as
follows: “I did not believe the Americans would bomb; nor did the Khmer Rouge.”
Given that Ponchaud had no access to either the US or the CPK establishments
his sources of knowledge are nothing more than his own musings and it is these
musings that the Civil Parties rely on for their argument. To maintain its
credibility at the current level, at no point, should the Trial Chamber rely on
anything Ponchaud said in court: His statements should be given zero weight.
All this was followed by an impassionate diatribe on the
Khmer proverb of ants and elephants, a nutty and barely decipherable food
shortage argument and other such balderdash on which I do not intend to comment
Hence, it is my assessment that the Civil Parties’ rebuttal
was uneven: Some of it excellent, much of it flawed, and some of it an