The first day of ECCC evidentiary hearings for 2015 completed a half-day of business before the court was again forced to adjourn, this time due to defendant Khieu Samphan’s health.
The court appeared eager to get back to business after the previous attempt to begin evidentiary hearings in phase 02 of Case 002 was abandoned in November of last year due to a boycott by the Khieu Samphan defence. Nil Nonn, President of the Trial Chamber, called the court to order and Case 002/02 was finally underway. The first testimony of the day was slated to address the atrocities that occurred at the Tram Kok Cooperative (including the treatment of Buddhists) and those relating to the Kraing Ta Chan Security Center.
A varied crowd filled the public gallery. Cambodians from throughout the country were in attendance, including 608 visitors from Battambang, 350 from Puisat, and 250 from Prey Veng province. A contingent of 26 students from Lehigh University in Pennsylvania, U.S.A. joined to observe justice in action as part of a two-week field trip to Cambodia integral to their four-year Global Citizenship degree. By morning break, they professed to being overwhelmed by the proceedings. Apparently, as it transpired, so was Khieu Samphan.
The work of the court began modestly with Mr. Nil Nonn stating that Justice Karopkin would not be in attendance and the greffier reporting that all other parties were present. The President went on to briefly review the prior difficulties that the Trial Chamber has experienced in trying to find “a workable compromise” that would have enabled the commencement of substantive testimony last fall, and how, failing in such endeavour, the court had “had no choice but to adjourn to today.” He reiterated that defence counsel had pledged they would be ready for the second phase of the trial once they had filed their appeal on the first phase, a task that was completed last week. But, Nil Nonn emphasized, the delay of 25 lost trial days and the attendant costs of same were unacceptable. Therefore, the President announced that “to protect the proceedings moving forward fairly and expeditiously,” Touch Vorleak and Calvin Saunders were sworn in January 5, 2015, as respective national and international standby counsel. He outlined that they will take over the Khieu Samphan defence if the court determines such is necessary.
The Trial Chamber also noted that it had issued a misconduct order against Khieu Samphan’s defence team, that the court scheduling order provided for only three days of testimony per week until an assessment of the fitness of the accused to stand trial is completed, and that the assessment of such fitness was to begin on January 19, 2015. With that, Nil Nonn declared the evidentiary hearing to be open.
Quickly, Anta Guissé, Khieu Samphan’s International Co-Defence counsel claimed the floor, opining that Khieu Samphan’s rights were being infringed by the “importing of lawyers…(who) have no procedural role…as counsel Khieu Samphan has chosen are present.” She argued that there is no precedent for having “replacement players on the field… awaiting a necessity to arise.” She claimed “their mere presence is not necessary, is not compulsory…” but “is putting pressure on Mr. Khieu Samphan and is somewhat of a threat to us.” She was most emphatic that she felt the Chamber was “sending a message that they were being far from impartial.” As a solution, she raised the issue of having an “impartial outside body clarify the issue” of whether there has been any malfeasance respecting professional ethics. She noted that as of January 5, the Paris bar “is still not seized” of the issue.
Eventually, the court cut her off, stating that she didn’t “want the public to understand you delayed the proceedings,” and instructing Ms. Guissé to be brief. The Defence Counsel then asked the Chamber to reconsider its decision to impose standby counsel “who have no procedural role in the proceedings.”
Kong Sam Onn, Khieu Samphan National Defence Co-Counsel, also pled that the appointment of the standby counsel was contrary to the interests of Khieu Samphan as these counsel would follow the advice of the Chamber and not the accused. He pointed out that the court had referred the question of the defence team’s conduct to their professional bodies, that there had been no ruling yet stating there had been any misconduct, and that the court could not anticipate what the bar decisions would be. Kong Sam Onn asked that the Chamber reconsider its decision to appoint the counsel affirming that he also felt that the presence of the new counsel may “infringe or affect the right of defence counsel to protect our client.” Khieu Samphan’s defence closed on trying to further justify the court’s reconsideration on the basis that having standby lawyers “may confuse the public.”
Victor Koppe, International Co-Lawyer for Nuon Chea, rose to voice his opinion that the new sitting arrangements whereby the standby counsel have taken the seats that had been allocated to the Khieu Samphan defence is “insulting” in a “brutal manner.” He, too, asked the Chamber to reconsider the decision, arguing that “there is not a place for them on this side of the court room.”
Khieu Samphan reiterated for the record that he had counsel he knew and trusted, and who were independent of the court and “did not submit to the Trial Chamber.” He added that he felt that the appointment of standby counsel was “one of the tricks to prevent (his) counsel from performing their jobs” and that it “infring(ed) the law.”
International Co-Prosecutor Koumjian jumped to defend the court’s actions pointing out that Khieu Samphan defence counsel had defied the court, walked out of the proceedings, caused financial losses, and “more importantly…,” caused justice to be delayed for two months. Arguing that the court could not be held hostage bydefence counsel defying the orders of the court, he said “the only threat and pressure (that Khieu Samphan defence counsel face) is that they must obey the orders of the court.”
Civil Party Co-Lead Lawyer PichAng claimed that the accused had the right to professional counsel but not to a right to “jeopardize proceedings or rights of civil parties.” But, he felt there must be a “balance” and asked the Chamber to provide time for the standby counsel to study the file in case Khieu Samphan’s current lawyers are not present. He also noted his displeasure that the seating arrangements made it appear that there were now three defence teams.
Marie Guiraud, Civil Party Co-Lead Lawyer objected to the Khieu Samphan defence team’s “insinuation that (because of the appointment of standby lawyers), there would be an objective alliance acting together in a community of interests,” emphasizing that the civil parties maintain their independence.
All parties having had their say, the President of the Chamber moved to start hearing testimony. Firstly, he reminded the accused that according to Rule 21 (1)(d), an accused has the right to remain silent but that under Rule 90, there is a right to examine the accused. He announced that NuonChea had informed the court that he intended to exercise his right to remain silent. As Khieu Samphan had not been clear on this issue, the President then asked for his present stance.
Khieu Samphan stated that “because there is pressure on (his) defence team”, he also would exercise his right to remain silent whilst reserving the right to make a statement at any time.
Nil Nonn said he would honor any change in either accused’s position at any time.
The next item of business was the Lead Co-Lawyers request to have a map of 17 communes’ locations to be admitted into the record. A discussion ensued between Justice Fenz and the Civil Party team in which it devolved that the map does not contain new evidence. It was prepared by the Civil Parties lawyers from evidence already in the case file. Locations of the communes are clear but not so locations of the villages which are “impossible” to determine. The witness who would testify about it had not seen the map as it was prepared only a day before the hearing. The President invited submissions to be made before the end of the day on whether the map should be accepted, and stated that he would then make a ruling before the witness took the stand.
Mr. Nil Nonn moved the hearing right along dealing with such housekeeping matters as stating that questions not relevant to the scope of Case 001/002 would not be allowed, giving the order of precedence of questioners, and warning that lawyers must adhere to acceptable professional standards of conduct, that the court would tolerate no rudeness.
Witness 2TCW 936 was then called. The President asked preliminary questions outlining the witness’s background, that he had lived in a commune, his current address and his occupation as a small businessman and rice farmer, his parents’ names and that he had three children. Most specifically, the court had the witness confirm that he had no relatives who had been admitted as civil parties and that he had been sworn in under oath.
The court then reviewed the obligations of witnesses, in particular, that a witness may refuse to answer a question if it is self-incriminatory but that a witness had an obligation to give testimony unless it was self-incriminatory. Further, that the witness had an obligation “to tell the truth based on (his) knowledge, experience and observations.” The witness answered positively the court’s enquiry as to whether he had re-read prior evidence given to the OICJ investigator.”
Anta Guissé vehemently objected to this process whereby witnesses read over their prior statements, but Nil Nonn ruled that the court would “stick to the decided strategy in the previous proceedings” and allow it.
After the morning break, the court addressed Mr. Koppe’s objection to civil party lawyers leading witnesses. The President invited Mr. Koppe to put his objection in writing by referring to the section of his appeal brief that dealt with this issue, and then for him to await a ruling in due course.
Seang Leang, Assistant Co-Prosecutor picked up the questioning, establishing more of the witness’s background that would enable him to be cognizant of the events material to the hearing. These elicited information such as: the witness was able to live with his parents during the Kymer Rouge time as he was a small boy; that there were six children in his unit which was assigned to tend to cattle but they were close to where the canals were being dug; that all the other boys in his unit were the same age as he but they died; and that the only teaching available at the time was “under a tree,” that there was “no proper stationary schooling,”( the school having been converted to ammunition storage among other uses). At age 15, he was sent to a temporary unit where the children would do harder labour before aging into the adult labour force although, because of his age, he still tended the cattle from early morning to dusk. (Only adults worked at night). His freedom of movement was prohibited. Not legally being able to visit his parents, he would sneak out to see them but “was tortured and brought back to the unit” if he was caught.
Mr. Koppe objected on the basis of it being leading for Mr. Seang to ask if there was another form of punishment besides beating as beating had not been mentioned. Nil Nonn overruled him, finding that in principle, leading questions would be allowed.
Seang Leang went on to draw the witness out on the issue of communal eating. This was given as starting in 1974 for a month and then cancelled until 1975 when communal eating was again imposed. The witness said he ate communally in the village, that there were six in his group who ate together, with many members in other groups.
The witness testified that the quantity of food (a spoon of steamed rice and morning glory soup with chicken or duck) was inadequate, but that he did not report it to the cooperative for fear of being killed by the chief of the cooperative.
On the basis that it was a personal experience of his mother’s of which the witness had no personal knowledge, KONG Sam Onn objected on behalf of Khieu Samphan’s defence, to the witness testifying that his mother reported she was so hungry that she did not have the strength to work.
Anta Guissé asked for more information concerning the source of this information, and Mr. Koppe said that it would be “helpful to lay a foundation of the issue here as it is important to events in June, 1976.” Mr. Koppe emphasized that it is “not helpful the way the examination is going.” In his own defence to the latter comment, Mr. Seang stated he had given notice to everyone that he would be proceeding with an examination on the working conditions in the cooperatives.
The President then interjected to question the documentary source of the information, and to ask for responses from the co-prosecutors to the objection so that he could then fully consider what his ruling on the objection should be.
Mr. Leang explained that the source was an interview by the witness’s mother with the OCIJ investigator. Mr. Lysak, Assistant International Co-Prosecutor contributed to the discussing saying that the procedure in the prior trial was to pose a question “to witnesses of information from other witnesses of which they have knowledge.” Madam Guissé felt that the foundation of testimony, the origin of the document and under which conditions the document could be used, should be established first.
The President ruled that the objection was not sustained and that “the witness would answer in relation to his or her personal knowledge or experience,” and that the assistance co-prosecutor could not directly hand the document to the witness.
When Seang Leang continued his line of questioning regarding the witness’s mother, the witness declared he did not know of her statement concerning reporting not having enough to eat but that he did know that she had talked to people in the cooperative. The witness then went on to ask that he be examined instead on the cooperative, earning a rebuke from the President that he had no right to order which questions he wanted to answer. The witness then further answered that after his mother had delivered a baby, she had so little to eat that she became ill.
The Co-Prosecutor changed the subject, now inquiring into whether the witness knew people were transferred out of Phnom Penh after April 17, 1975. He said he knew that they “were evacuated…in cooperatives.”
Mr. Koppe objected on the basis of the witnesses tender age of 15 meaning it “was beyond the capacity of the witness” to answer on how the new people were “characterized” by the regime.
The witness did testify that he knew they were named “17 April people, civil service people or soldiers” and that his family, being local people, were not so named. He also knew that the old residents were called “base people” and the imports were “new people.” He had no idea how many families of new people were sent to Tram Kok.
Switching to the treatment of Buddhists, the Mr. Co-Prosecutor elicited the information from the witness that, whereas from 1973 to 1974, the monks had raised chickens and ducks to support soldiers in Phnom Penh, from April, 1975, to January, 1979, there was no Buddhism practised. He said all the monks were disrobed in 1975 and the temples turned into clinics, pig stys and storage facilities.
Mr. Koppe objected that the witness could not possibly know that all of the monks had been disrobed and asked that the trial chamber make a direction on such wide questioning. Mr. Koppe said he could “stand up every time but what is the point?” The court ruled the questioning could proceed and the witness said he knew of one monk who refused to be defrocked.
Under Dale Lysak, International Co-Prosecutor, questioning, the witness stated that 12 of his family members, including himself, his parents and all of his siblings, had been arrested in June, 1976; that his parents had been arrested for complaining about the food ration and betrayal of the cooperative; and that other villagers (non-relatives) including Sut Sok, the village chief, were arrested at the same time. They were taken to Ang Roka office for one night where, although they were the only prisoners, they saw shackes, handcuffs and blood stains. The next day, they were moved to Kraing Ta Chan Security Center. The witness never saw his father again after he was arrested but his father had left his lighter at the prison. The witness was told that his father “had been taken away after he was severely tortured.” He described the prison as having two levels of barbed wire fence, with “three buildings for keeping the prisoners, one building for workers, a cooking building, two small halls, and a place for questioning prisoners.”
The court adjourned for lunch after which the President announced that the Trial Chamber was unable to continue with the witness’s testimony as Khieu Samphan had been taken to hospital after complaining of dizziness and the effects of high blood pressure. Declaring that the hearing could not proceed without Khieu Samphan’s presence, the President was, therefore, on the basis of a letter attesting to Khieu Samphan’s medical condition, adjourning the hearing until tomorrow, January 9, 2015, at 9 AM.