Closing Statements: Prosecution

Commentary

 

 

 

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.