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 documenta