Prosecution Closing Arguments Conclude in Case 002/02

At 9:03 a.m., Judge Nonn began today’s proceedings. The Greffier confirmed that all parties were present except for Civil Party Lead Co-Lawyer Pich Ang, and Nuon Chea, who is watching the proceedings remotely. Judge Nonn accepted Nuon Chea’s waiver of his right to be present at today’s hearing due to his medical condition.

International Deputy Co-Prosecutor Dale Lysak continued his presentation from yesterday.

 

Mr. Lysak reminded the Chamber that he had been discussing the crime of imprisonment and the deprivation of the right to liberty for thousands of people at the security centers without any due process. Mr. Lysak began with a discussion of the use of confessions from S-21, usually torture-induced confessions, that implicate other people as the basis for arrests.

 

He noted that the S-21 prison chief and his deputy both testified that confessions were sent from Phnom Penh to the Division 801 secretary, after which the named persons were arrested in the division and sent to the division prison at Au Kanseng. Evidence in support of this testimony includes a surviving S-21 confession which includes a handwritten note from Khieu to Comrade Roeun asking him to pick out the relevant named persons in Division 801. In a subsequent report from the division secretary to Son Sen (a CPK party leader), the report states that they were following the trail of new and old elements against the revolution, and also those newly and previously implicated by the enemy.

 

Mr. Lysak gave an example of how the same process and documentary evidence happened in Phnom Kraol in Sector 105. A high-ranking cadre from Sector 105 (who passed away before this trial) stated in an interview with OCIJ that he saw confessions which had been sent to the Sector 105 military chief. In addition, there is in evidence a telegram from Sao Sarun, Sector 105 Secretary, to leaders in Phnom Penh confirming the arrest of a person who had committed moral offenses and who had been previously implicated in another’s confession. In this telegram, he also asked for instructions from the center on what to do with the prisoner. There is handwritten note on this telegram that confirms that it had been specifically forwarded to Nuon Chea.

 

Sao Sarun testified in this case that he had sent this telegram, Sao Sarun claimed that the instruction that he received back from party leaders was to release the prisoner, but other witnesses who knew the prisoner testified that the person had disappeared from Mondulkiri and was never seen again. Sao Sarun also testified that he had received from the center the names of Sector 105 cadres who had been implicated in an S-21 confession of the head of the Sector 105 commerce office.

Mr. Lysak offered another example where relatives were targeted. Witnesses testified about a group of men who fled one of the commerce offices for Vietnam, leaving their wives behind. The wives were subsequently sent to S-21.

 

There are many documents available from S-21, and many of these corroborate the policy of sending persons to S-21 based on confessions from other prisoners. Mr. Lysak said that the arbitrary and extrajudicial nature of arrests can be seen in a letter to Duch from a member of the committee at the Kampong Som port, regarding a cadre from the North Zone who was being sent to S-21. The letter states that this “contemptible” person was being transferred to S-21, along with his “contemptible” wife, and that he was related to other “contemptible” persons. The person was being transferred because of three driving-related incidents, specifically that he did not know how to brake properly, he used the wrong vehicle to tow a truck and overheated the engine, and he caused damage to an excavator’s suspension when he drove it down a mountain and braked by dragging the shovel along the road, which then broke the suspension. The driver was sent to S-21 and three weeks later was sent to his execution. Mr. Lysak emphasized that this was a perfect example of why due process is necessary before persons are deprived of their liberty.

 

Mr. Lysak gave a similar example for the Kraing Ta Chan prison. One of the documents that survived from that prison identifies 29 prisoners. The first 20 were mostly former Lon Nol soldiers who were arrested because they were part of a network that planned to escape to Thailand or Vietnam. The next seven prisoners had broken spoons or hoes in their cooperatives. Prisoner number 28 had complained about the food, and prisoner number 29 was an elderly former village chief who had taken food to eat.

Mr. Lysak stated that according to a review of the evidence from Kraing Ta Chan, approximately half of the documented Kraing Ta Chan prisoners were former soldiers, officials, or police from the Khmer Republic. Witnesses had testified regarding the instructions given by the Tram Kok district committee to identify and purge former Lon Nol who held ranking position. Almost three-fourths of the former Lon Nol prisoners at Kraing Ta Chan held the office of warrant officer or higher.

 

With regard to the purge of former Lon Nol officials, the defense for Nuon Chea offered a contrary witness. Mr. Lysak reminded the Chamber that this witness had Tram Kok early in the regime, and his story is undermined by the fact that his brother was a former Lon Nol soldier who was arrested and imprisoned by much of the regime.

Regardless of discrepancies or disputes between witness testimony on the policy at Tram Kok, is resolved by surviving records from communes that clearly document an instruction and policy to target Lon Nol officers. Mr. Lysak reviewed two of these commune documents that detail successive efforts to find and smash former “enemy officers.”

 

Mr. Lysak stated that arresting or imprisoning relatives because they held a position in or supported a former regime is not due process, but persecution.

Also related to Kraing Ta Chan, the first witness before the Chamber in this case testified that almost his entire family was arrested and imprisoned in Kraing Ta Chan because his father and brother-in-law tried to vote out a local village chief. Mr. Lysak offered a document that corroborate this detention and references the execution of his father and brother-in-law. Mr. Lysak gave another example of a woman and child who spent 1.5 years at Kraing Ta Chan because of the confession of her co-worker.

Mr. Lysak next reviewed the conditions at the prisons, discussing the prisons together. He noted that there are five truths about the inhumane conditions common to all of the security centers:

  1. Prisoners were shackled in their cells.

  2. Prisoners had to relieve themselves in cells while shackled in their cells.

  3. Hygiene was nonexistent.

  4. Prisoners did not receive sufficient food.

  5. Prisoners often became ill, did not receive proper medical care, and many died as a result.

With regard to the use of shackles, Mr. Lysak showed photographs of the different ways that prisoners were shackled at the different prisons, for example, at the big prisons, the shackles were connected to long metal bars. Many prisoners were shackled at all times, including when they slept. Witnesses testified that the effect of the shackling was severe pain and numbness in prisoners’ legs, making it difficult to walk.

 

Next, Mr. Lysak described how prisoners had to use a variety of containers to relieve themselves, such as coconut shells, bamboo tubes, ammunition cases, or other such containers that were passed from one prisoner to another. They had to eat and sleep where they relieved themselves.

 

Mr. Lysak described how the lack of hygiene caused many of the prisoners to suffer from bed bugs or body lice. Cells were infested by bugs and rodents. Witnesses testified to the harmful effects of the lack of hygiene, which were both physical and mental. Witnesses also described the smell of death at the prisons.

 

Mr. Lysak gave examples of the lack of food at the prisons. Witnesses described their hunger at the prisons and the size of the rations. The portions were insufficient such that women could not produce breast milk, which in turn resulted in the death of their nursing children. Witnesses said they did not think of anything other than being thirsty or hungry, and one witness said that he would have eaten human flesh, just so that he could stop being hungry.

 

Lastly, on the subject of medical care, Mr. Lysak recalled the Au Kanseng prison chief’s testimony that more prisoners died from disease than executions. At Kraing Ta Chan, when people died, they were left in the cells overnight. And at S-21, daily reports would have notes at the bottom in handwriting detailing the prisoner deaths from disease. One witness testified that his father had been in good health before his arrest, and had only been at S-21 for one month before he died of dysentery and wounds.

Mr. Lysak noted that Annex F, filed with the prosecution final brief, lists the daily totals from the S-21 daily control lists that recorded the deaths each day by disease. There were records available for 258 days and during this period, 235 prisoners died from disease at S-21, with an increase of deaths over time.

 

Mr. Lysak referred to Chum Mey testimony about the conditions at S-21. Chum Mey testified that he never thought he would survive S-21 and every day he lay on his back and waited to die. Mr. Lysak noted that the Nuon Chea Defense has questioned Chum Mey’s detention at S-21, even though Duch and other survivors have testified that Chum Mey was at S-21, there are multiple prison lists that identify Chum Mey at S-21, and his confession is in the surviving S-21 records. Mr. Lysak noted the critical role of a vigorous defense in these proceedings, but he also noted that the defense attack on Chum Mey was void of merit and suggested that it highlights the weakness in Nuon Chea’s defense in this case.

 

Mr. Lysak next discussed the crime of torture. He said that it has been proved beyond any doubt that torture was used at the prisons, as it has been described by survivors, admitted to by the interrogators, and by the chief of the prison at the time he was on trial for that crime. There were also notebooks kept by S-21 interrogators that document their systematic use of torture. The torture at S-21 was not minor – it included severe beatings, electric shocks administered until the victim was unconscious, and pulling out fingernails and toenails.

 

Mr. Lysak then gave several examples of torture testified to by witnesses, and corroborated by documentary evidence. Some of the strongest documentary evidence is the contemporaneous notebooks of interrogators that contain the instructions and training that they received. The instructions were explicit on the use of torture, stating that it cannot be avoided, the only question is whether there will be a little or a lot of torture. The instructions also stated that the objective of torture is to get the victims’ answers, so they must feel pain so that they respond quickly.

 

Mr. Lysak reviewed additional witness testimony from prisoners at the different prisons who survived or witnesses torture at those prisons. One of the highlights of Mr. Lysak’s presentation on torture was the linking of similar torture methods across all the prisons. For example, he presented evidence that reports from Kraing Ta Chan and Trapeang Thom commune both confirmed the use of hot and cold interrogations on prisoners. Mr. Lysak thinks the reference to hot and cold interrogation methods in this district is significant as hot and cold methods were also used in S-21.

 

Mr. Lysak stated that this evidence shows that torture was widespread and systematic and used across all prisons. The use of torture was also widely known, from the commune chiefs to the party leaders. For example, one of the members of the CPK standing committee, Vorn Vet, had instructed Duch how to torture using a plastic bag.

With regard to the knowledge of the Accused of the use of torture, Mr. Lysak explained that the annotations on documents like confession summary reports show that those reports were distributed to zone, division, and ministry leaders around the country. Confession summaries frequently contained descriptions of the use of torture.

In their own words, Nuon Chea told to Thet Sambath, his biographer, that people normally confessed after beatings and torture, and Khieu Samphan admitted to a reporter from Le Monde that “there was indeed a state institution in which systematic crime, torture, extermination, were state policy.”

 

Next, Mr. Lysak presented evidence on the crime of murder and extermination. He stated that the evidence shows that the killings at the security centers were conducted at a massive scale and the evidence of this is beyond any dispute.

 

In his first example, Mr. Lysak explained how, the prison chief, deputy chief and surviving prisoners from Au Kansang prison all testified to a mass execution of between 100 to 200 prisoners from Vietnam that took place at the security office. The prison chief and deputy also testified that the order to kill these prisoners came to them from Division 801, but that the order had come to Division 801 from the Northeast Zone secretary. This was relevant because it was the Northeast Zone secretary who had reported that Division 801 had arrested 209 Vietnamese who had come across the border. And it was the Northeast Zone secretary who had contacted the party leaders on how to proceed. The telegram requesting instructions was copied to Nuon Chea, Office 870 and the center archives.

 

Mr. Lysak concluded that what is clear from this example is that the leaders in Phnom Penh were to decide the fate of these prisoners.

 

Mr. Lysak then gave two more examples of killing on a massive scale at Kraing Ta Chan and at Tram Kok. Briefly, the guards who worked at Kraing Ta Chan and the few survivors testified that with few exceptions the prisoners who were sent to Kraing Ta Chan were killed. He gave examples of witness and civil party testimony that corroborated this. As at S-21, the testimony of these witnesses is confirmed with contemporaneous documents from Kraing Ta Chan. Mr. Lysak showed the court a monthly report from Kraing Ta Chan that totaled the number of people entered the prison, how many were killed that month, the number who died from illness, and how many remained in the prison. Another Kraing Ta Chan interrogation report contains a handwritten order from the Sector 13 Secretary to “smash them all”.

 

Mr. Lysak also highlighted witness testimony and documentary evidence that showed that a Tram Kok District Secretary authorized the killing of children and toddlers who would not be separated from their mothers who were to be executed. Mr. Lysak stated that these killings were not rogue acts, but done pursuant to the policies and instruction from the CPK leaders.

 

Mr. Lysak reviewed the analysis of remains from mass graves at the Kraing Ta Chan, noting that the remains had not been properly maintained over the years so the number analyzed will not accurately reflect the original number of remains. An analysis of the approximately 1,900 skulls from Kraing Ta Chan shows the clear markings of violent trauma inflicted on them.

 

Mr. Lysak then reviewed the evidence of murder and extermination at S-21. He noted that Duch and the prison cadres have testified that all who came to S-21 were to be smashed. This testimony comes from the cadre who wrote down the names of all who arrived, the guard who took prisoners from the S-21 compound to Choeung Ek, and the guard who escorted the prisoners to the mass graves at Choeung Ek where they were killed. A study of the remains at Choeung Ek was done and of the more than 6,000 skulls examined, only one did not have any markings of violent trauma.

 

Mr. Lysak next discussed the documentary evidence of execution lists. To give some context, he noted that during the 1977 and 1978 purges there were at least 27 instances of mass executions where more than 100 persons were killed in a day. There was also a month in which more than 1,000 prisoners were killed. In October 1977, 418 were killed in one day at S-21. These execution lists show the intent to kill on a massive scale and prove that the crime of extermination was committed.

 

Next, Mr. Lysak clarified the change in the estimated number of people killed at S-21 that has occurred since the end of Case 001. When asked, Duch had said the actual number of people who were killed at S-21 may have exceeded the approximately 12,300 names that had been compiled into a list. Last year, OCIJ added to this list of executions at S-21 by reviewing all the entry records for S-21 and adding a source for each of the prisoners on the list. Due to time constraints, OCIJ only reviewed the entry lists for S-21, and subsequently, the prosecution team reviewed all of the execution records in evidence. The prosecution team updated the list with any missing execution dates for those prisoners already on the list, and added prisoners not yet listed. The reason that new names were found by the prosecution team is that both the entry lists and the execution lists for S-21 are missing records.

 

When the prosecution team finished, they had identified approximately 18,000 persons who had been detained at S-21, and where the original OCIJ list had 5,000 execution dates, the prosecution added an additional 6,000 execution dates, for a total of more than 11,000 confirmed execution dates.

 

Next, Mr. Lysak discussed the critical issue of Nuon Chea’s role at S-21. Some of the most damaging evidence against Nuon Chea comes from Duch, who has testified that he reported directly to Nuon Chea after Son Sen was assigned to the eastern battle front to command troops against the Vietnamese. Nuon Chea gave Duch his orders, including the East Zone purges and the purges of the RAK cadres toward the end of the regime. Duch’s testimony about his relationship with Nuon Chea is also substantiated by documentary and other witness testimony, which was covered in detail by Mr. Lysak. This testimony included a handwritten note by Duch on an instruction he received from Nuon Chea to remove names from a confession, testimony from Nuon Chea’s bodyguard that he personally delivered letters from the Accused to Duch, and returned thick envelopes from Duch to Nuon Chea. And finally, a film clip of Nuon Chea where he admits to Thet Sambath that he received many confessions from Duch and used them to educate the junior cadres.

 

Mr. Lysak stated that this evidence makes it that Nuon Chea played an integral role in the security office.

 

Mr. Lysak explained that while Khieu Samphan did not have the same role as Nuon Chea had when it came to S-21, Khieu Samphan clearly had knowledge and he made a significant contribution to the joint criminal enterprise.

 

One indication of Khieu Samphan’s role was his responsibility for the late King Father Norodom Sihanouk, possibly the most important prisoner in Cambodia. In March 1976 when King Sihanouk asked to resign, it was Khieu Samphan who took this request to the standing committee, where it was decided that the King was not allowed to leave the country but would be put into house arrest at the palace and kept alive if he did not resist. It was also decided to send a wire to the King’s children to return to Cambodia immediately for the New Year’s celebration. The real reason for the recall of his children was acknowledged in the minutes of the meeting, which was so that “the problem could be resolved cleanly.” Mr. Lysak stated that we know that many of the King’s children and family were killed.

 

Mr. Lysak showed a video clip of Khieu Samphan in which he reveals his knowledge of meetings and decisions by the standing committee on whether to arrest fellow CPK members. Mr. Lysak explained that Khieu Samphan described arrest decisions by Pol Pot and the standing committee in detail in this clip. Two of the standing committee members who regularly attended meeting with Khieu Samphan and Nuon Chea were sent to S-21, and later Khieu Samphan’s friend and colleague was also sent to S-21. Despite this, Khieu Samphan continued to wholeheartedly support and implement CPK policies. Just after his friend’s arrest in 1977, Khieu Samphan stated that “we must follow CPK policies and everything must be done neatly and thoroughly.”

 

In an interview with Steve Heder, Khieu Samphan spoke extensively about Vietnamese agents who had infiltrated the highest level of the party including the standing and central committees. The Accused stated that “we managed to deal with those people completely.”

 

Mr. Lysak stated that this evidence refutes the lie that Khieu Samphan repeated to OCIJ that he did not know of a single arrest during the Democratic Kampuchea.

Lastly, Mr. Lysak discussed evidence related to political education meetings and the Accused’s support of CPK policies. He noted that in these two trials, the Chamber has heard about political education meetings given by both Accused, sometimes together, and has heard witnesses describe the political education meetings. One witness heard Nuon Chea play a recording of a confession at one of these meetings.

 

Mr. Lysak recalled a speech that Khieu Samphan gave to people of the East Zone, where he instructed people to not betray the party or be killed. Nuon Chea, in an interview with Thet Sambath, clearly expressed his support for killings of traitors of the regime by saying that killing traitors saved the Khmer people and so it was the correct decision. He also said that if the individual becomes a problem, they must be solved. Nuon Chea, by his own admission, has no regrets for those who were killed because they were enemies of the people. He agreed with Pol Pot’s decision to kill all the traitors, at the time he just wanted to fix the problem and that was the correct solution. Thet Sambath asked Nuon Chea why the CPK leaders had to kill the traitors instead of imprisoning them for life, Nuon Chea responded, “that is an easy question to ask, but a difficult one to answer. At that time, we had no proper prisons, and if we kept them, they would spread and produce their eggs and many more would have been killed.” Mr. Lysak noted that Nuon Chea’s support of killing not just the person accused of disloyalty but the persons related to them.

 

Next, Mr. Lysak yielded the floor to International Co-Prosecutor Nicholas Koumjian, who spoke about crimes against the Vietnamese and the Cham, and the elements of genocide.

 

Mr. Koumjian began by emphasizing that genocide is a crime against a group. It does not depend on the number of persons killed, as compared to the crime of extermination, where killing must be on a massive scale. Because of this, theoretically genocide can be committed with a single killing if that killing was done with the intent to destroy a group. And a group has to be a national, ethnic, religious or racial group.

 

In Case 002/02, genocide is charged for the treatment of the Vietnamese and the Cham.

 

Mr. Koumjian reviewed a little of the history of genocide, noting that it came into existence as a crime in 1946, when the United Nations general assembly said that genocide is the denial of the right of existence of an entire group that shocks the conscious of mankind, results in great losses to humanity, and is contrary to moral law.

 

He reviewed the definition of genocide, which is particular. Genocide requires any of five different types of acts committed with the intent to destroy in whole or in part, a national, ethnical, racial or religious group, as such. The five types of acts are

  • killing members of the group;

  • causing serious bodily or mental harm to members of the group;

  • deliberately inflicting on the group conditions of life calculated to bring about its physical destruction;

  • imposing measures to prevent births; and

  • forcibly transferring children of the group to another group.

Mr. Koumjian noted that killing members of the group is what is charged in this case, specifically, that the destruction of the Vietnamese and Cham in Cambodia was caused, at least in part, by killing members of the group.

 

Before his discussion of genocide, Mr. Koumjian first addressed the defense position on intent and how intent is related to joint criminal enterprise. In Nuon Chea’s final brief, he makes the statement that the physical perpetrators of the acts have to share whatever the intent is for the crime at issue with the members of the joint criminal enterprise. Mr. Koumjian argued that this interpretation of the law is mistaken. He noted that the defense cited the ICTY Brdanin Trial Judgement, and it is accurate that the Trial Chamber did state this requirement for shared intent. However, Mr. Koumjian points out that this requirement was overturned on appeal on that very same case. Moreover, the appeal chamber and all the subsequent jurisprudence that addresses this issue recognize that the joint criminal enterprise can use a perpetrator to commit the crime.

He offered an example to illustrate this: the intent of the guards at Choeung Ek is irrelevant, as they were carrying out orders. It is not important whether the guards at Choeung Ek had genocidal intent, so long as they were being used by the joint criminal enterprise to carry out that act. So, the question at issue is whether the crime is part of the common purpose of the joint criminal enterprise, and it is the genocidal intent of the joint criminal enterprise members that matters. Mr. Koumjian quoted from a book called The Collective Theory of Genocidal Intent, which phrased the concept another way: “Low level actors [the shooters, the executioners at Choeung Ek with the hoes and with the knife] do not occupy a role that would allow them to destroy the group, and therefore they cannot truly form that intention. Whether physical perpetrators at the lower echelon of genocidal enterprises possess genocidal intent is no longer relevant to the attribution of physical liability of genocide.”

 

Mr. Koumjian next discussed the crimes against the Vietnamese. He noted that evidence in this case shows that the intent of what to do with the Vietnamese changed over time. At the beginning of the regime, it was CPK policy to remove the Vietnamese, usually by sending them to Vietnam. Over time, and towards the latter days of the regime, the intent was to kill the Vietnamese that remained.

 

Mr. Koumjian notes that deporting or transferring individuals is not a genocidal act, but that it can show the intent to commit genocide. In Srebrenica, the evidence showed that the Serbs transferred women, children, and elderly, which could be a physical means to ensure the destruction of the Bosnian Muslim community because it would make it harder to reconstitute the community. In case 002/01, the Secretary of Sector 105 testified that Pol Pot had said that he wanted to drive all the Vietnamese from the area of Democratic Kampuchea.

 

Mr. Koumjian notes that an issue of Revolutionary Flag describes the deportations by saying that there were many foreigners but one type of foreigner was strongly poisonous and dangerous to our people, they came to wolf us down, came to take away everything and endanger our nation and our people. In a later issue, it states that our revolution got them permanently out from our territory and swept thousands clean.

 

The policy of sending Vietnamese to Vietnam changed, and this was highlighted by the testimony of a high-level cadre at this trial revealed the true intent of the regime’s policy and how it changed. “I heard about Vietnamese living in Kampuchea. Vietnamese who lived in Cambodia did return to cause trouble to Kampuchea people and are not leaving. Initially, starting from 1970, they were peacefully sent back to their country by the Cambodian government and that continued until 1975. “And later on, we were instructed that Vietnamese had to be smashed because they did not return to their country.” Mr. Koumjian stated that this was the point at which the policy changed.

This message was what was disseminated to cadres in the country. In 1978, Nuon Chea praised the army for crushing the Vietnamese strategy of exterminating the Kampuchean race. Mr. Koumjian said that often, those leaders who are planning a genocide will often characterize the victims as a threat to their own people to incite the killing. He gave examples from Nuon Chea, Khieu Samphan and Pol Pot where they predicted the end of the Khmer people by the hand of the Vietnamese, depicted the Vietnamese as barbaric and cruel, and accused the Vietnamese of having genocidal intent against the Khmer.

 

Mr. Koumjian provided evidence that this was a strategy on the part of the CPK leaders, as King Norodom recalled that he had a conversation with Khieu Samphan where Khieu Samphan said that to unite the people the best thing we could to is incite them to hate the Vietnamese more and more every day.

 

The Democratic Kampuchea leaders looked for a foreign enemy to blame for the suffering of their people.

 

In 1978, Office 870 disseminated instructions that it was imperative to constantly stir up national and class anger against the Vietnamese. At that time, the only committee member at Office 870 was Khieu Samphan. Witnesses testified that the instruction from the leaders to cadres was to kill all Vietnamese as the Khmer’s hereditary enemy, even if the person in question was a baby.

 

With regard to the genocidal intent of the CPK, Mr. Koumjian stated that the words of the leader of an organization are critical in understanding what the organization intends. Pol Pot gave a speech in which he stated that “we have implemented one against 30, meaning we lose one, the Yuan lose thirty.” He went on to say when we have two million, they need 60 million, so we already have more than we need because they only have 50 million. This indicated that, if there were 8 million Cambodians at the time, then Pol Pot was willing to sacrifice 2 million to kill all the Vietnamese because 2 million people is enough to kill the 50 million Vietnamese.

 

Mr. Koumjian stated that one of the consequences of this policy and incitement could be seen in actions by Democratic Kampuchea troops when the crossed the border and attacked in Vietnam. He recognized that attacks in Vietnam are outside the scope of this case, but noted that they are relevant to intent. He also noted that the defense position is that these attacks did not occur.

 

Mr. Koumjian said that it has been shown in trial, including by an expert requested by defense, Steven Chandler that in 1977 the Khmer Rouge attacked several villages and towns in southern Vietnam, burning houses and killing hundreds of people. Other witnesses testified to the brutality and mindlessness of the violence of the attacks.

Mr. Koumjian noted that this violence was also commented on by Khieu Samphan in his book about Cambodia’s recent history, where he wrote that the events recounted are irrefutable and there is no doubt that the Khmer Rouge made forays into Vietnamese villages along the border, committing appalling crimes against Vietnamese civilians. There is documentary evidence corroborating that Khieu Samphan and Nuon Chea knew about these attacks, including telegrams sent to Pol Pot, Khieu Samphan, Nuon Chea, and Office 870 describing the firepower used, the destruction of military and civilian houses, and the killing of Vietnamese.

 

Mr. Koumjian stated that in 1977, a decision had been made not to deport the Vietnamese, but to kill them. In the Northwest Zone, a witness testified that he was instructed to report any Vietnamese and they would be killed. Mr. Koumjian showed a video compilation of a number of witness statements about how the Vietnamese were treated. The witnesses testified about discovering their killed family members, especially their children, and how the policy was to “kill the grass, you must take up the roots” which meant that relatives were also killed. They testified that if there was Khmer husband and a Vietnamese wife, the wife and children would be taken away and killed. One witness testified that all the Vietnamese in his village had been taken. There was also documentary evidence, including a telegram from the West Zone saying it had applied the party line to remove and sweep clean Vietnamese and that the result was the smashing of “100 ethnic Yuons, included small and big, adults and children”.

 

At the end of the regime, the treatment of the remaining Vietnamese could be seen in the numbers of Vietnamese at S-21. Mr. Koumjian showed a graph showing the monthly totals of Vietnamese arrested and sent at S-21, and another graph showing that in S-21, there were 728 individuals identified as Vietnamese, of which about 35% were soldiers, and 49% classified as civilians. With regards to the accuracy of the reporting at S-21, Mr. Koumjian noted that one of the S-21 cadres testified that children were not recorded at S-21, so the records will not reflect the total number of children killed at S-21. There are seven Vietnamese children who do appear in the S-21 records, and the prosecutor showed a few of the pictures of the children, most under the age of 10-years old. Two of the children were 7-year old boys and were described in the S-21 records as “Vietnamese spies.”

 

Mr. Koumjian referred to a Revolutionary Flag issue from April 1978 which celebrated the eradication of Yuon in the Democratic Kampuchea and stated that there were formerly 1,000,000 of them, and now, not one seed.

 

Mr. Koumjian stated that the killings of the Vietnamese are genocide as they were an attempt to destroy the Vietnamese in Cambodia, as such.

 

Next, Mr. Koumjian addressed the treatment of the Cham. He returned to the definition of genocide and noted that it is still a developing area in international law, and one of the outstanding questions of interpretation is what the words “as such” mean. As all words in the statute are presumed to have a meaning, what does it mean to destroy a religious group, as such?

 

The prosecution submit that a religious group has a collective practice, and if you destroy the ability of the group to practice the religion, then even if individuals survive, the group has been destroyed, as such. Mr. Koumjian notes that there are various ways to this, some of which are genocide, and some of which are not, depending on whether the act is a genocidal act. Some interpretations of “as such” are that if you kill the Cham because they are Muslim you have destroyed the group “as such”, but Mr. Koumjian notes that act is already included in the definition of genocide, so what do the words “as such” mean? In his opinion “as such” means the identity of the group as a group. He offered an example that if you tell a religious group that they have to convert or be killed, then you have destroyed the group, as such, because those individuals who do not convert will be killed, those who do convert will no longer belong to the group, so the group has been destroyed.

 

Mr. Koumjian said this is a critical interpretation because the policy relating to treatment of the Cham also evolved over time, and the attempt to forcibly assimilate the Cham occurred early in the regime even before 1975. The policy changed in 1978 when the Cham refused to give up their religion and rebelled against the Khmer Rouge. The policy then changed to killing the Cham, but also to try to disperse the Cham out of the areas where they were traditionally concentrated along the Mekong River.

Mr. Koumjian reviewed the evidence related to the forcible assimilation of the Cham, which was done by prohibiting the practice of the religion. He noted the Defense’s citations to acts prohibiting the practice of religion that do not violate international law (like not praying in the street). He referred to one of the cases that the Defense cited, in which the decision clearly provides that international law recognizes that it is a human right to practice one’s religion, that religious freedom is primarily a matter of individual conscience, and implies the freedom to manifest alone and in public or in community with others whose faith one shares.

 

The Khmer Rouge forbade the practice of religion for the Cham and also for the Buddhists. Teaching children was forbidden, and the Khmer Rouge tried to disperse the Cham to other areas of Cambodia. Mr. Koumjian reviewed the witness testimony that supported the existence and implementation of the policy on the treatment of the Cham. For example, one witness said a higher representative of Angkar told him that there would only be one single population and that is Khmer, and that there would be no Cham. He also said the Cham were not allowed to stay in their village, they were dispersed, the religion was abolished, and were not allowed to worship anymore. Another Cham witness testified that women were forced to cut their hair short, all were made to eat pork, and they were not allowed to speak the Cham language.

 

Mr. Koumjian then discussed the circumstances of the Cham rebellion, which was reported in a document from Sector 5. There were not many Cham in the Northwest Zone, but some were there and they attempted to rely on the Constitution’s right to freedom of religion. They protested the food they were given as being against their religion, and the response was to look for the head of their movement in order to sweep clean.

 

Mr. Koumjian explained that another way to destroy a group is to target parts of the group that are necessary for the group’s survival. If a specific part of the group is emblematic of the entire group or necessary for its survival and it is targeted and destroyed, then that act meets the standard of genocide, as the requirement is to destroy the group in whole or in part. Mr. Koumjian states that this is what happened to the Cham. In the Democratic Kampuchea, the number of hakim (village leaders) declined from about 113 to 20, and the number of tun (teachers of Islam) from 300 to 38. An expert testified that in the early Democratic Kampuchea years, killing was not targeted against all Cham but just those who refused to give up religion, customs, and language.

 

Mr. Koumjian says that targeting the people who refuse to give up the customs and language is enough to meet the standard for genocide. The prosecution submits that the removal of the Cham from the three districts that have been their traditional home may meet the standard as well.

 

One of the members of the standing committee said in a letter that the effort to disperse the Cham was part of the policy of the CPK.

 

Next, Mr. Koumjian discusses the testimony of a critical witness, the District Secretary of Kampong Siem. He first reviewed the defense position, in which Nuon Chea, recognizing how damaging and powerful her testimony is in establishing a genocidal policy against the Cham, puts forth a “silly conspiracy theory” about how the prosecution could have been so prescient as to put down this witness to testify in this section of the trial. Mr. K’s response to Defense is that anyone who knows the case file and wants to get to the truth would want to hear from the District Secretary of Kampong Siem.

 

Mr. Koumjian notes that there is “plenty” in the case file that details the activity in Kampong Siem. For example, an expert witness wrote in his book that the death toll of Cham was particularly brutal in Kampong Siem and Democratic Kampuchea documents indicate that nearly all the Cham there were executed, with estimates ranging from 2,000 families to 10,000 people. There were ten Cham villages completely destroyed during the Democratic Kampuchea, and five of those were in Kampong Siem.

 

Mr. Koumjian returned to the District Secretary of Kampong Siem, who testified that there was an order from the sector to the districts to purge the Cham. She wondered why the leaders wanted to purge the Cham people. She was asked how many Cham were in the Kampong Siem district and she did not know. She continued wondering why the Cham people should be purged, but as the order came from the upper echelon, she simply implemented it. Mr. Koumjian described this witness as defensive about her role, she testified that during the purge she only knew that the Cham had been taken away and killed. She was told by the Sector Secretary. She told OCIJ that her orders were clear, and she had no choice but to follow them. Her subordinate, the commune secretary, testified that she was required to compile lists of Cham, Vietnamese and Lon Nol soldiers. The District Secretary further testified that she noticed the gradual diminishing of the Cham, and the district military commander told her that the Cham had all been purged. The commune secretary also testified that the district secretary went to Phnom Penh once or twice a month. Other witnesses heard the District Secretary talk about the policy of the upper echelon and that Cham were the enemy and needed to be eliminated.

 

Mr. Koumjian next described various testimony from multiple witnesses in various districts where the policy on treatment of the Cham was implemented. Witnesses interviewed by OCIJ said that there were about 292 Cham families in 12 villages in one commune, only 3 people survived. Many of their corpses were dumped in water wells or bomb craters. Mr. Koumjian estimates that there were approximately 1,465 Cham individuals in that commune alone. The District Secretary of Kampong Siem testified that she reported 1,600 Cham families, which would be approximately 8,000 individuals.

 

Mr. Koumjian highlighted an interesting fact about the District Secretary of Kampong Siem, which was that she had adopted a daughter who was Cham. And this was the only Cham that she saved.

 

Mr. Koumjian then discussed the treatment of the Cham at the Kang Meas District. After the arrival of the southwest cadres, a long sword group would receive orders from the Secretary at the Kang Meas District to arrest Cham. In addition to Cham, there were also “new” people and former Lon Nol soldiers in Wat Au Trakuon, the prison for the district. But there were differences in how people were treated: entire Cham families were arrested together, they were not interrogated as there was no need to look for their “string” (their relatives and connections), and they were all going to be executed, sometimes 100 Cham at a time. One of the members of the long sword group said that all the Cham were arrested in a certain commune once the southwest cadres had arrived.

 

Mr. Koumjian then reviewed a significant amount of testimony from individuals who noticed the disappearance of the Cham in their villages, communes or areas, or witnessed the arrests of Cham, or witnesses the dead bodies of the Cham that had been deposited in the Mekong River.

 

Mr. Koumjian showed a second compilation video with testimonies from Cham witnesses about how they were forced to eat pork, family members who refused to abandon their religion, witnessing the killing of Cham by a large pit, the dumping of the bodies of people, children and babies into the river, how people were tied to one another and then towed into the river and left in the middle of the river to drown, and then that process repeated over and over.

 

Mr. Koumjian continued by stating that it has never been the prosecution’s position that the Khmer Rouge killed the entirety of the Cham people, but that they destroyed the group, as such. He reiterated that genocide is designed to protect the group identity, not the individual. He explained that “destroy” cannot only mean to kill people because the five genocidal acts include the transfer of children of the group to another group. When this happens, the children stay alive, but they would learn a different language, customs, and religion, and then the group would not exist.

 

In this case, the killings took place, they were concentrated in places that were important to Cham survival, and they targeted the leaders of the Cham community and religious practice. For these reasons, genocide of the Cham occurred beyond a reasonable doubt.

 

One witness from the Central Zone told the court that after the Khmer Rouge had taken hold of the area, Cham were merged with Khmer people. In 1977, Cham were taken to Wat Au Trakuon to be killed, and he explained the reason for the CPK policies by saying that the CPK simply wanted one pure race.

 

In his last topic, Mr. Koumjian moved on to discuss the role of the accused, which he called the Gang of Three. He stated that the CPK was an authoritarian regime, they came to power through force and deception, and there were no elections except for the fake election for a parliament led by Nuon Chea. So, Mr. Koumjian posited, how were decisions made in this type of environment?

 

In his book, Considerations on the History of Cambodia, Khieu Samphan wrote that in communist states all decisions are made inside a central leadership framework, and these decisions must be implemented the same way by each individual. Mr. Koumjian notes that there has to be some measure of discretion for those lower down on the ladder of power as it is impossible for leaders to make every decision for every person, but that does not mean that Khieu Samphan or Nuon Chea can avoid responsibility or criminal liability for the policies they set or the crimes they authorized.

 

Next, Mr. Koumjian reviewed the framework of responsibility in the CPK. The statute of the CPK states that three regular armies of the Democratic Kampuchea must be under the absolute leadership monopoly of the CPK. And the central committee decision from March 30, 1976, the first matter it deals with is the right to smash inside and outside the ranks of the party. It also indicates that the objective is a framework, an absolute implementation of our revolution to strengthen our socialist democracy, to strengthen our state authority. Mr. Koumjian stated that, while the right to kill is delegated to the zone committee, or equivalent committees in the autonomous sectors or the military, Nuon Chea and Khieu Samphan cannot avoid responsibility for how killings were implemented by those below them when they were specifically authorized to do those killings and those killings follow the policies set by the center. As central leaders, they implemented criminal policy in three ways:

  1. Orders and decisions that they issued

  2. Speeches and trainings

  3. By example – no place set a better example than S-21, where even people closest to Nuon Chea and Khieu Samphan were taken there

Mr. Koumjian stated that these center leaders set a clear example of the kind of ruthless, brutal policies should be carried out. And lastly, they killed any rivals who challenged their rule.

 

Mr. Koumjian stated that the zones reported and took instruction from the center and the secretaries went to Phnom Penh for trainings. In an interview, Khieu Samphan said that Pol Pot hunted down and made arrests with the participation of the standing committee, he never did anything alone. Khieu Samphan would know this because he was involved. Khieu Samphan and Nuon Chea were Pol Pot’s closest associates. Mr. Koumjian clarifies that he is not saying they were among Pol Pot’s closest associates, but that Pol Pot’s two closest associates were limited to Khieu Samphan and Nuon Chea. This gang of three were responsible for CPK policies and implementation. They remained with Pol Pot until his arrest and death, they never disagreed with him, even after the regime, never spoke badly about him, even after. Nuon Chea and Khieu Samphan protected each other, like Nuon Chea’s order to Duch to remove references to Khieu Samphan in an S-21 interrogation.

 

Pol Pot’s bodyguard testified that the Nuon Chea, Khieu Samphan, and Pol Pot ate three meals together, every day. They worked together, every day. They lived near each other. Khieu Samphan says the same, that as for daily life, the three of them did nothing separately. Nuon Chea also said the same, that during the Democratic Kampuchea regime the three regularly ate their meals together.

 

A high-level cadre, Pol Pot’s personal interpreter, testified in case 002/01, and he said that Nuon Chea was brother number two, and Nuon Chea was the strongest man after Pol Pot. He described Nuon Chea as Pol Pot’s shadow. Khieu Samphan said that he thought Pol Pot was a great leader, and in an interview, showed where Pol Pot lived, and said he followed Pol Pot all the time, like a shadow. So, a double shadow supported Pol Pot all the time, even before the Democratic Kampuchea regime. Khieu Samphan was loyal to Pol Pot, and even emotional about it – said he can still see Pol Pot in the Cardamom Mountains, and that he misses him because he had a very rare mind.

 

In the film Behind the Killing Fields, Nuon Chea talks about how Pol Pot came to power. Nuon Chea had asked Pol Pot to lead and Pol Pot agreed, but on the condition that they would do everything as a team. When asked if there were ever disputes between Pol Pot and himNuon Chea said there were no dispute between them in 1975 to 1979.

Mr. Koumjian then said that from the forced transfer, and the cooperatives, and the 190 security centers where people were killed with no judicial process, to the genocide against the Cham and Vietnamese, Nuon Chea confirms that he had no disagreements with Pol Pot.

 

When Khieu was asked in “Facing Genocide” about Pol Pot, he said that “they say” Pol Pot is a dictator and talk about genocide but that he was a great leader and if Pol Pot could act like that he would not have been able to make such a movement. Khieu Samphan also said that he wants to should it out at the trial.

 

Nuon Chea and Pol Pot had self-criticism sessions and Pol Pot would criticize Nuon Chea for being too hard line, and Nuon Chea would criticize Pol Pot for being too trusting. They defected to the government on the same day, on December 25, 1998. Nuon Chea told Thet Sambath that there was a confession implicating Khieu Samphan and Nuon Chea told Duch to not report this again and never return with implications of Khieu Samphan.

 

Mr. Koumjian stated that these three created a circle of power responsible for the policies of the Democratic Kampuchea regime.

 

For his defense, Khieu Samphan has relied upon the claim that he was unaware of the enslavements or purges or other crimes that were occurring in the Democratic Kampuchea. When asked in the movie how many people died in the Khmer Rouge regime, Khieu Samphan said it was many, but not as many as two million, that was exaggerated. And regarding his personal responsibility, Khieu Samphan claimed he did not have any power and did not know anything. He asks himself why he did not know and says that maybe he could be criticized for not finding out but that he did not try because he respected the party discipline. But he did not feel tricked or cheated because Pol Pot did not tell him what was going on, because Pol Pot was right about everything and he had reasons for everything.

 

Mr. Koumjian says that Khieu Samphan was contradicting himself when he said that Pol Pot had reasons for everything he did, because how could he know that if he did not know what was going on? Mr. Koumjian asked rhetorically what the three men talked about when they had dinner together, finding it incredulous that they would talk about subject like pop culture or sports, and “of course Khieu Samphan knew what was going on.”

 

Mr. Koumjian next reviewed some of Khieu Samphan’s history with the communist party, and reiterated that when Khieu Samphan’s stated that he was not a man of the party and not a Khmer Rouge leader, he is lying to avoid his responsibility for what occurred.

 

In his book, Khieu Samphan said in 1978 he did hear of atrocities because his wife’s relatives were affected, so he ordered his wife’s relatives released, and did nothing for anyone else. Nine people that Khieu Samphan was responsible for were killed by the end of the regime, and a number of people from the standing committee that he worked with were killed, so he had to have knowledge.

 

Khieu Samphan told OCIJ that he was invited once or twice a month to join “extended” standing committee meetings which were effectively Pol Pot monologues. Khieu Samphan said that the meetings were very friendly and everyone got along in those meetings.

 

Mr. Koumjian showed a graph depicting who of the standing committee had attended the most standing committee meetings. Nuon Chea had attended the most (18), then Pol Pot (17), Khieu Samphan (16), Doeun (purged) (12), Ieng Sary (10), Son Sen (10), Vorn Vet (purged) (9), Koy Thuon (purged) (6), Sao Phim (purged) (0), and Ta Mok (0). Mr. Koumjian explained that of the five members who were not purged, Ieng Sary and Son Sen were often away where Ieng Sary was on foreign trips and Son Sen went to the East Zone. As purges took place, this left Nuon Chea, Khieu Samphan, and Pol Pot, which shows that Khieu Samphan’s influence and involvement would only have grown over time.

 

One expert noted that Khieu Sampan’s involvement in the purges was bureaucratically natural because his position to the party body responsible for keeping track of policy implementation coincided with Pol Pot’s shift of priority from economic rebuilding to ferreting out enemies. This shift to giving the highest priority to purge work was disseminated within the party by Nuon Chea.

 

Mr. Koumjian yields the floor to National Co-Prosecutor Chea Leang, who will address the Chamber on sentencing.

 

Ms. Leang requested to conclude the prosecutors’ submissions with a request for conviction of Nuon Chea and Khieu Samphan for their participation in the crimes of genocide, crimes against humanity and grave breaches of the Geneva Conventions as argued in the prosecutors’ closing brief. The prosecutors submitted that on the basis of the quality and quantity of the evidence this is the only conclusion that can be drawn beyond a reasonable doubt on the evidence.

 

Ms. Leang then stated that the evidence demonstrated that these two Accused were leading ideologues, architects, planners, and implementers in CPK of one of the most cruel and complete systems of human rights abuses in any country in the 20th century. Once in power, the Accused systematically attacked the Cambodian population, who they had a responsibility to protect. In their minds, it was more important to stay in power at all cost and achieve their vision of a communist utopia than to protect the most basic fundamental human rights owed to all Cambodians in the Democratic Kampuchea period. In the three years, eight months, 20 days of their government, they set aside Cambodia’s obligations and international human rights treaties and intentionally attacked Cambodian fundamental human rights.

 

Ms. Leang stated that the Accused deprived Cambodians of the right to life, physical protection, fair trials, freedom of expression and freedom of movement. Right to practice religion of their choice, family, right to marry, work, rest, access to adequate food and water, medical care, sanitation and housing, amongst other rights.

Ms. Leang asserted that Khieu Samphan and Nuon Chea believed they had absolute power to do anything they pleased to the Cambodian population and they did just that. They forced people to leave their homes and work in forced labor camps around the country in terrible inhumane situations, they separated families to dilute family power and influence, they forced people to marry and have sex against their will, they persecuted political opponents – former Lon Nol officers and civil servants, CPK cadres, Democratic Kampuchea ministry staff, Cham, Buddhist, and Vietnamese. Persecution was done through imprisonment, torture, extrajudicial executions and other inhumane acts, both in and outside CPK’s expensive security office network.

 

Ms. Leang stated that this intentional system of abuse was implemented across every zone and office for the whole period the Accused were in power. If a person was lucky enough to live through the regime, the accused made sure they could not alleviate the conditions placed upon them.

 

Ms. Leang stated that the Accused doomed the Cambodian people to suffer. The intensity of the system of abuse and the unflinching implementation by the Accused created in an atmosphere of fear and terror amongst all Cambodians, that they would be killed or harmed at any moment. This has left Cambodians with long-lasting physical and psychological harm that will remain throughout their lives.

 

Ms. Leang stated that both Accused were at the apex of CPK authority and both made central, substantial, and critical contributions. Nuon Chea was second in charge, and Khieu Samphan was head of state, in addition to holding other roles in Democratic and CPK. At the highest level was integral to the development and implementation of these criminal policies. Both Accused abused their power to the extreme; for these men, the ends justified the means no matter how barbaric the means.

 

Ms. Leang requested that no leniency in sentencing should be given to these men because of their age, education and mental capacity. Nuon Chea was 48 years old and Khieu Samphan was 43 years old at the time they were in power. Both had studied law abroad. These were smart educated men who knew the consequences of their actions. They had the academic and life skills to control people’s behavior. Nor should they receive leniency on the basis of their claims that they were under duress, unlike S-21 where the cadres were under pressure to kill or be killed themselves, these Accused were under no such pressure and they who developed an atmosphere of fear and terror. Nor should they be given leniency for cooperating with the ECCC. Neither has given any significant assistance beyond their legally required attendance at investigations and trial. Neither has shown any remorse, rather, they have both written books justifying their behavior rather than apologize for their actions.

 

Ms. Leang elaborated that Khieu Samphan is of the view that he has done nothing to make him ashamed before anyone. Although Nuon Chea takes responsibility morally for what happened, he has refused to take personal responsibility for his own actions. Sadly, he has said he would make a revolution again if he were reborn. The fact that neither Accused has retracted their belief that they had the right to choose who lived and who died and how they lived demonstrates their absolute lack of remorse and absolute misconception of what a healthy society should be, one where difference is celebrated and not demonized. Such gross abuse of power and humanity must be strongly condemned by this court.

 

The prosecutors submitted that only appropriate sentence is life imprisonment, by this, it will reflect the gravity of the crimes committed by the Accused and the central role they played.

 

Ms. Leang acknowledges that this judgment and sentence will not bring back those killed during Democratic Kampuchea, nor will it un-harm those who suffered during this period. The prosecutors hope, however, that such a sentence will bring some justice to victims and will assist to deter the occurrence of these crimes in the future by showing that no person is above the law by virtue of status or position.

 

Ms. Leang requested that when the Chamber issues the verdict, that the judgment contain details of all the charges, all the facts, and the basis for all the findings. In doing so, this judgment can provide a strong lesson for future generations and the government of Cambodia of the truth of the period and a clear understanding of the circumstance that led to these atrocious crimes so that they can never be repeated again.

 

Judge Nonn adjourned proceedings until tomorrow at 9 a.m., noting that Nuon Chea will present his closing statement first for defense.

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(c) 2017  NORTHWESTERN UNIVERSITY SCHOOL OF LAW

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