Nuon Chea Defense Closing Arguments End a Long, Intense Week at the ECCC

Transcription

1 Nuon Chea Defense Closing Arguments End a Long, Intense Week at the ECCC EDITED: Due to the length of the post, links to main topics have been added to assist the reader. Please note that the post is organized in chronological order, not by theme or subject matter, so there may be discussion of a particular subject throughout the day that is not represented in the links below. Introduction The Manichean Narrative; Rules of Evidence Vietnamese Collaborators and Aggression CPK National Defense and Security Policy Kraing Ta Chan, Au Kanseng and Phnom Kraol At 9:01 a.m. Judge Nil Nonn began the day s hearing. The Greffier confirmed that all parties are present, except for Mr. Nuon Chea who has waived his right to be present in the courtroom due to his medical condition, and will follow the proceedings remotely. Judge Nonn gave the floor to Nuon Chea Defense Co-Lawyer Son Arun. Mr. Arun greeted the court and introduced himself. Introduction Mr. Arun began with a summary of Nuon Chea s defense. Today and next Monday, he and his team will respond to the allegations and summarize and explain Nuon Chea s case. He noted that this is a crucial occasion for Nuon Chea and for Cambodia, as Nuon Chea has long said he accepts moral responsibility for what happened in Democratic Kampuchea. He is still participating in these proceedings as he believes that he has a responsibility to help the Cambodian people understand what really happened. Mr. Arun noted that the proceedings against Nuon Chea have taken ten years and he is already over 91 years old. Many key witnesses have died or become unable to testify since the tribunal began. He said that the days left to search for the truth are numbered, and as this is Nuon Chea s last trial, these closing arguments are likely the last chance to discuss his case for the Cambodian people and for the truth. Mr. Arun noted that his team filed a 550-page brief outlining Nuon Chea s case, and as two hearing days are not enough time to properly explain their brief, they will focus on only a few points that are significant for Cambodians or have been strongly contested at trial. His colleague Liv Sovanna will set the scene for the oral arguments and explain the historical and procedural context of the case. Co-Lawyer Victor Koppe will present the core of Nuon Chea s case, which the defense calls the crocodile. Mr. Arun explained that Nuon Chea says that the tribunal only discusses the body of the 1 / 22

2 crocodile, in that it limits the discussion to the time of Democratic Kampuchea, whereas the discussion should include the head and tail, too. The head is pre-1975 root causes of those events, and the tail refers to the consequences after Democratic Kampuchea. The key root causes defined what happened in DK, and they were the existential threat that Vietnam caused, the devastating U.S. bombing, and the civil war that left Cambodia in ruins. Mr. Arun stated that Co-Lawyer Victor Koppe will detail the evidence that shows that Vietnam was recruiting internal collaborators from the top of the CPK who attempted three failed coups. These coups would have overthrown the CPK and the legitimate CPK government, and they added chaos nationwide. Mr. Koppe will also discuss how during the period of Democratic Kampuchea, Vietnam carried out constant acts of aggression leading to its illegal invasion of Democratic Kampuchea in Vietnam then effectively occupied and controlled Cambodia, coming closer to its dream of creating an Indochinese federation where Laos and Cambodia being umbrella states. Mr. Arun and his team will discuss the CPK national defense and security policy. As Liv Sovanna will explain, the state of emergency in Democratic Kampuchea meant that the policy was not only rational and reasonable but fully lawful. Finally, he will explain that the implementation of military defense and security policy at the security centers was lawful. Doreen Chen will discuss Kraing Ta Chan, Au Kansang and Phnom Kraol security centers. Mr. Koppe will end the day with a discussion of S-21. Mr. Arun yielded the floor to Mr. Liv Sovanna. The Manichean Narrative; Rules of Evidence Mr. Sovanna started by saying that the prosecution says that the defense case is morally abhorrent even though they have never tried to deny the suffering of Cambodians during the Democratic Kampuchea period, and Nuon Chea has acknowledged this. The defense s first job is to ensure that the ECCC treats Nuon Chea fairly and in accordance with the law. Second, defense holds the prosecution accountable, and the prosecution has the burden of proving every element of every crime beyond a reasonable doubt. They have the obligation to act objectively and fairly, which the defense does not feel they have done. The defense tries to ensure that the tribunal finds the truth, because understanding the truth is how justice will be served. The truth is what Nuon Chea hoped these proceedings would find, and he is disappointed in the tribunal s apparent disinterest in what the truth is. This tribunal has had an opportunity to clarify what we know about Democratic Kampuchea, and it can take detailed evidence turn it into a greater truth. Mr. Sovanna stated instead of looking for a greater truth, the tribunal has repeated the dominant narrative. This dominant narrative was promoted in the early days by Vietnam, discussed by the Cambodian government, and repeated in most books, articles, exhibitions, and programs since then. The dominant narrative seems to have been the road map for the investigation of this case, and is the case the prosecution has presented. And when defense looks back on Case 001 and Case 002/01, they can see that this Chamber was clearly convinced by the dominant narrative. 2 / 22

3 Mr. Sovanna stated that this dominant narrative is what Nuon Chea s case responds to. According to the dominant narrative the CPK was a monstrous and cruel regime that intended to harm the Cambodian people. Our international colleagues call this the Manichean narrative. The story the Manichean narrative tells is too simple, sometimes it is inaccurate, sometimes false and at the end of the day, it only presents good versus evil, and according to it, CPK was purely evil. Mr. Sovanna explained that the Manichean narrative has four pillars: 1. Propaganda by Vietnam that the CPK were monsters: After Vietnam invaded in 1978, propaganda grew louder that the invasion was a humanitarian effort and not aggression. This propaganda continued for decades after the DK, from Vietnam and its allies like the Soviet Union and East Germany. It continues to today, even casting a shadow over how the Tuol Sleng Genocide Museum presents the story of S-21 and the DK. 2. Cambodian refugees: they were mostly upper- and middle-class refugees, and they have heavily influenced how we understand what happened in the DK. 3. Media: since the DK, the media has spread the Manichean narrative without thinking critically. By being told in the media, the Manichean narrative seems more true, even when truth contradicting the narrative comes to light. 4. Collective memory: memory can change with information that people learn after an event. This increases when events are discussed a lot, and when a long time has passed since the events, and both of these conditions exist in this case. We are not saying that all witnesses are lying, though that does sometimes happen. There is a greater risk that civil parties are lying because they do not testify under oath, and even if they are not lying, memory may be unreliable after such a long time. The biggest problem with collective memory is that it creates accepted truth about what happened in Democratic Kampuchea that can be inaccurate. Mr. Sovanna asserted that the problem at this tribunal is that it is not enough to repeat a myth we have always heard, but to check if there is objective truth, otherwise there is no point to spend all this money on the tribunal if it does not get closer to the truth. At this point, Mr. Sovanna mentioned that the situation regarding the acceptance of the Manichean narrative at the tribunal has changed recently due to three events: first, a few independent reports have criticized the trial judgment in 002/01. Second, this Chamber decided this will be Nuon Chea s last trial ever. Third, the Supreme Court Chamber (SCC) issued its judgment in 002/01. The SCC judgment acquitted Nuon Chea of extermination during first phase of the population movement and extermination and political persecution during the second population movement. They also included all three charges against Nuon Chea in relation to the death of former Khmer Republic soldiers and officers at Toul Po Chrey, namely, extermination, murder, and political persecution. Mr. Sovanna then explained that, to put the appeal judgment in context, this was the first time that defense has seen any significant resistance to the power of the Manichean narrative at this tribunal, and Nuon Chea s fate in this trial is not decided. While there were aspects of the SCC decision that did not make sense and took non-legal aspects into consideration, it was 3 / 22

4 refreshingly different than the defense s experience in litigating Case 002/01 here. Next, Mr. Sovanna explained why the SCC judgment was so important to Nuon Chea s defense in Case 002/02. He said that first, the SCC found that witness Sam Sithy was not credible. During the DK, Sam Sithy was a child and claimed to see his family killed for being former Khmer Republic officials. He was the only alleged eyewitness cited by this Chamber in its decision supporting the killing of former Khmer Republic soldiers and officials. Sam Sithy had been a witness that defense requested to testify on appeal because he had not testified during the trial. Mr. Sovanna said that when Sam Sithy testified before the SCC, he clearly enjoyed the spotlight, he hardly remembered details about the trauma to his family, and the details he did give did not feel true or consistent. As a result of his court appearance, defense requested that the SCC investigate his claims further. The SCC agreed with defense in finding Sam Sithy evasive on details and general and weak as an eyewitness. They also pointed out that he had an article published about his experience and so he might have a reason to repeat his story even if it was not true. Mr. Sovanna then reminded the Chamber that this is what judges should to at a trial. He said that although this is an emotional and difficult topic for many, it is important that everyone asks the difficult questions. The SCC asked the difficult questions, they looked at Sam Sithy s testimony dispassionately, they were not convinced, they were not afraid to say so in their judgment. Mr. Sovanna stated that he was sure that the president of the Chamber remembered telling witnesses to tell the truth and answer questions directly and properly. He exhorted the Chamber to apply the SCC s approach to evaluating credibility of witnesses and civil parties and to apply critical thinking to evidence. Mr. Sovanna stated that the second example of the difference in the SCC approach to its judgment was its decision on what it takes to convict someone in this tribunal of murder. The SCC said that each and every fact needed to be proved beyond reasonable doubt, and each elements of each crime charged also need to be proved. The SCC also said that a break in chain of evidence rendered a conviction impossible. The SCC clarified how murder convictions are reached, and that this Chamber had made mistakes in making general findings without focusing on individual acts of killing, and this forced the SCC to review all the evidence and reconsider the decisions on murder. Mr. Sovanna then requested that the Chamber improve, as this is Nuon Chea s last trial, and neither the Accused nor the defense can count on another trial to do things better. He noted that if the Chamber s approach does not change now, it will be too late for Nuon Chea and the civil parties and witnesses and the legacy of this tribunal. Next, Mr. Sovanna reviewed the new rules of the game, noting that they are a radically different approach to what has been adopted by this Chamber, and that defense has structured their entire case on these new rules. He noted that the prosecution has failed to apply the new rules of the game. 4 / 22

5 Mr. Sovanna stated the rules as follows: Nuon Chea can only be convicted if the evidence proves his guilt beyond reasonable doubt. If there is even any doubt, Nuon Chea must be acquitted. Importantly, proof beyond reasonable doubt is not about how many pieces of evidence you have. The point is that Nuon Chea s guilt is the only reasonable conclusion you can reach. Not all types of evidence are equal, there are important rules to follow. Live evidence heard in court is always more relevant. Evidence of witnesses is stronger than evidence of civil parties, since witnesses take an oath and civil parties do not. Chamber always had to consider if a witness or civil parties are credible or reliable. Written documents like civil party applications and documents collected outside the tribunal have lower probative value. They are also not enough on their own a fact beyond reasonable doubt. If a witness, civil party or expert does not testify in court, then their interview, record, civil party application, or record has lower probative value because it is untested. Similarly, documents collected outside court also have low probative value since they were not collected as part of a judicial process. Hearsay evidence also has low probative value. Care needs to be taken in evaluating evidence of persons who may have been in alleged crimes as they may have reason to shift blame to Nuon Chea and away from themselves. The value of expert evidence depends on their credibility, impartiality, and the quality of sources used in their research. Mr. Sovanny concluded with expressions of disappointment for the prosecution for sticking to the Manichian narrative, their failure to apply the new rules of the game, and for showing disregard for the rules of evidence. The defense position is that the prosecution has quoted only what evidence is in their favor. The defense claims that the prosecution seems to think that it is the majority of evidence that proves the point and that the minority of evidence that shows reasonable doubt is not relevant. And defense is disappointed that the prosecution has constantly relied on documents collected outside the court, including those that cannot be authenticated, on statements of people who cannot testify, they cite hearsay evidence, rely heavily on books of authors who refuse to testify at this trial. Mr. Sovanny stated that although the time of closing oral arguments is limited, defense will present as many examples as they can of the flaws in the prosecution s case, and show that they have failed in their duty to prove beyond reasonable according to the proper rules of evidence standards that apply at this tribunal. And he cautioned the Chamber on relying similarly on such evidence, as such a judgment will not survive on appeal. Lastly, he said that the defense will show that the evidence is insufficient to find Nuon Chea guilty of any of the charges against him in Case 002/02. Mr. Sovanny yields the floor to Co-Lawyer Victor Koppe. 5 / 22

6 Mr. Koppe began by building on the previous discussion of the Manichean narrative. He noted that it is easy to see why after so many decades the Manichean narrative has become the accepted truth by public, media, and handful of Anglo scholars who have written, and by many of the tribunal judges, despite their duty to be impartial. Next, Mr. Koppe asserted that by its wholesale acceptance of the Manichean narrative, the prosecution hopes to shift the burden to the defense. He noted that despite the prosecution s burden of proof, it has always seemed that there was an assumption that their story is true, and up to the defense to disprove it. But now there are new rules of the game, and now the pressure is greater than ever on the Trial Chamber to function as a proper court. He continued that it is not the defense role to disprove, but to ensure that the prosecution fulfil their duty to prove every element beyond reasonable doubt. If the defense can show that there is reasonable doubt on just one element, then the prosecution fails. In a proper court of law, the defense has the right to its own investigation, and in this tribunal, they have been prevented from conducting an investigation and given little opportunity to give input to the investigation. The investigators were not unbiased, they bought the Manichean narrative and only looked for inculpatory evidence and not exculpatory evidence. For the defense, it has been like fighting a boxing match with both hands tied, frustrating and unfair. Mr. Koppe said that defense searched in the public domain and foreign archives diligently to support Nuon Chea s theory of the case, i.e., presenting the head and tail of the crocodile. Defense also worked with prosecution witnesses, who often offered evidence supporting Nuon Chea s case. The appeal in Case 002/01 further opened the evidentiary door as the SCC was interested in our case and conducted more investigation at our request. Thet Sambath and Robert Lemkin gave the SCC more information from the filming Enemies of the People. These interviews gave explosive evidence on high levels of treason at the highest levels at the CPK, but this Chamber has refused to admit most of these transcripts into evidence. Mr. Koppe stated that all the evidence that defense has found will corroborate Nuon Chea s case in more detail than ever. This will not only create substantial doubt on the prosecution s case, but proves Nuon Chea s case about what happened before, during and after the DK, demolishes the Manichean narrative, and rewrites history. Mr. Koppe will present a brief overview of Nuon Chea s case, the crocodile, and respond to the prosecution s arguments against it. Mr. Koppe brought a translation timing issue to the attention of the Chamber, noting that the closing brief in Case 002/01 had not been translated into Khmer until 1.5 years after the Trial Chamber had already rendered its judgment. He questioned whether the judges on the bench who spoke Khmer did not have access to the details of the defense case as a result. In contrast, at the SCC, all appeal briefs were translated into Khmer and available to the SCC judges 1.5 years before their decision was issued. Mr. Koppe maintained that this may have made the difference in the quality of their decision. 6 / 22

7 Finally, Mr. Koppe stated that Nuon Chea s case is incredibly complex, that the brief analyzes the evidence in this case in a meticulous way, and the case can only be properly understood by reading the brief in full, by the judges personally and not only their legal officers. Mr. Koppe requested that the translation of the final brief into Khmer is completed at least a year before the judgment is issued. He asserted that not doing so would amount to a blatant violation of Nuon Chea s right to a fair trial and to present a defense, and would be the basis for one of their first appeal grounds. Vietnamese Collaborators and Aggression Mr. Koppe began with a review of the existential threat posed by Vietnam to Democratic Kampuchea (DK). In their brief, the prosecution tries to portray Nuon Chea as racist, referring to his hatred and contempt for Vietnam, they spin the DK resistance to Vietnam s continuous illegal attacks as encroachments on Vietnamese territory. They suggest that DK deceived Vietnam by negotiating simply to gain time for forces for aggression later. Mr. Koppe states that the prosecution portrays the CPK as paranoid and irrational instigator of armed conflict with Vietnam and that Pol Pot and his circle acted under the delusion that they faced a threat of domination from Vietnam. In contrast, the prosecution displays Vietnam as the peaceful, calm and patient neighbor who did not antagonize, and wanted to move calmly to the negotiation table. He argues that the opposite is true: that Vietnam was an imperialist aggressor and effectively a proxy of the Soviet Union. He offers as proof Vietnam s invasion and occupation of Cambodia for more than a decade, in addition to all their other actions. Mr. Koppe reiterated that the first way that the Manichean narrative was formed was through Vietnam s propaganda, which tried to legitimize Vietnam s blatantly illegal invasion of the DK. He stated that the Chamber took a similar view. In Case 002/01 judgment, the Chamber seemed skeptical that Vietnam had shown aggression to the DK at all. The CPK were not the only people to identify the existential threat to Cambodia. In 1963, King Sihanouk said that no Vietnamese leader would sleep peacefully until he had first annihilated Cambodia, having first enslaved it. He reiterated this multiple times. The prosecution also ignored that Vietnam has had ambitions for Cambodia for 1,000 years and fulfilled these ambitions over centuries by annexing Cambodian territories like Champa and Kampuchea Krom, and continues to covet territory in the South China Sea. Mr. Koppe stated that Vietnamese leaders wanted to establish an Indochinese federation, merging Cambodia, Laos and Vietnam, where Cambodia and Laos would serve as slave states. There is clear evidence that during the DK, Vietnam sought to establish this federation. Vietnam s leader said during this time that sooner or later Cambodia will be with Vietnam, the Khmers have no choice. During the DK, Vietnam had multiple aggressions against Cambodia, and it was the DK that calmly wanted to negotiate peace. At the time, even the New York Times reported that Vietnam wanted to make an empire in the region. 7 / 22

8 On paper the CPK and North Vietnam were allies, but in reality, the CPK was constantly betrayed by its so-called friend. As Nuon Chea has said, the worst betrayal of all was when North Vietnam sided with the U.S. at the 1973 Paris peace agreements to force the CPK and King Sihanouk to negotiate with the Khmer Republic. King Sihanouk refused to do so, and that led to the U.S. bomb Cambodia for 200 days and nights as punishment, which caused 30 or 40 times the deaths from the evacuations during the DK. Mr. Koppe stated that witnesses also testified to clashes between the Vietnam, Viet Kong, and CPK, with Vietnam stealing military supplies meant for Cambodia. Vietnam paved the way for the Indochina federation. From 1954, many Cambodians communists were given safe haven in Hanoi. The prosecution wrongly claims in their brief that when these Khmer Vietnamese returned to Cambodia that they were wrongly regarded as internal enemies, but the truth is that they were groomed to become Vietnam s internal collaborators. After their return, many became liaison officers between the CPK and Vietnam and reported to Vietnam and not their fellow Cambodians. Mr. Koppe stated that from 1960 to 1979, Vietnam used every trick available to destroy the revolution of the Kampuchean people and the development in Cambodia. The key tricks they used were deceptive negotiation tactics and manipulation of public opinion. For example, in 1976, Vietnam reneged on a promise it had made in 1967 to honor a boundary line when oil was discovered on it. In a second example, Vietnam offered to end the war in Cambodia but they offered unacceptable terms knowing that the blame would shift to DK. Lastly, Vietnam would make unfounded complaints of incursions of Cambodians into Vietnam territory, just before Vietnam would right before Vietnam planned to invade DK. Mr. Koppe asserted that when a country is at risk, its policies will be defined by the threat to its security. This was the case in DK the existential threat of Vietnam was at the top of the DK considerations. This threat was the driving force behind the CPK security policy and also of the cooperatives and worksites, which focused on need to develop national capacity to ensure survival. There is nothing strange about the DK efforts to strengthen the country. DK had relationships with over 100 countries to minimize the threat the Vietnam posed to it. The prosecution claims that the CPK was delusional is undermined by the fact that many other countries spoke of the threat to region as well. Chinese leaders had discussed the threat of Vietnam long before DK had been established, the Chinese had referred to Vietnam as the hooligans of the east. Many other countries echoed these serious concerns, including President Gerald ford and Kissinger with Indonesian president. Australian diplomats also expressed these fears, and other of Vietnam s neighbors. In 1977, Vietnam succeeded in subjugating Laos, signing a friendship treaty, which in reality gave what China called overall control over Laos. And then Vietnam turned its attention to Cambodia. It was not DK led attacks that escalated the conflict with Vietnam that year but the opposite. It is important to note that DK military reports never avoid mentioning RAK clashes with Vietnam. But early reports from 1977 contain no such mention because they did not happen. Several witnesses agreed that aggression came only from Vietnam, that Vietnam 8 / 22

9 attacked DK from all directions in March, April, and May 1977, and that Vietnam would evacuate people from areas they wanted to attack, showing how premeditated the attacks were. Two Battalion commanders in Cambodia have said that they would only push Vietnam back to border and not cross it, only did incursions if necessary, and these witnesses were relied upon by this Chamber in Case 002/01. There is no truth to the Manichean narrative that the CPK imagined the threat of Vietnam and that Vietnam was Cambodia s eventually savior. Vietnam worked carefully, persistently, and deceptively to rob Cambodia of its autonomy and territory. Mr. Koppe said that while Vietnam had an external strategy for Cambodia, its main strategy was internal, specifically recruiting people at top of CPK as collaborators to overthrow the legitimate CPK government from within. This is natural when you look at how Vietnam wanted the international community to see it it would give them plausible deniability. In presenting the story of the crocodile, defense called Vietnam s internal efforts Plan A, and Plan B was the external efforts. Plan A is the lesser known of Vietnam s strategies and discussed next. Prosecution claims that there was no evidence of CPK treason of top leaders, but that they were seen as an absolute threat to the dictatorship of Pol Pot and his acolytes. This is an unthinking accepting of the Manichean narrative. The evidence is that there is extensive collaboration. The prosecution describes the CPK hierarchy and suggest that the CPK information flowed smoothly from the bottom and orders from the top, but the truth is that CPK was always divided. On one side were Pol Pot, Nuon Chea, Ta Mok, Son Sen, and others and the other side were many top leaders who worked to overthrow the CPK. Cracks were formed long before the CPK assumed power. In S-21 statement, Koy Thuon said that in 1973 he had already discussed a breakaway faction within CPK with at least two others. And another person, had he testified, also stated that in 1973 there were factions in the CPK. Cracks in the CPK were widely conceived. There were at least three factions based on ideology, foreign allies, or geographic zones. Pol Pot and Nuon Chea were only one group in the CPK. Other countries noticed the split in CPK too, like China and Thailand, and Vietnam. Regardless of the exact nature of the division, the CPK was not united then, nor would it ever be. From liberation on 1975, the cracks expanded. Witnesses described how CPK forces even divided control of Phnom Pehn itself. At this point, Mr. Koppe cited to evidence that for which there is a pending request to be admitted before the Chamber. The evidence is interviews from Thet Sambath and Roger Lemkin. A former cadre told Thet Sambath the following: he describes how right after the CPK s first congress, he attended a meeting in Phnom Penh in 1975 with 300 leaders from the zones and ministries, including two standing committee members, and others. The two standing committee members spoke of a plan to jointly fight back against Pol Pot, the plan would unfold secretly, or failing that, openly, and could involve help from Vietnam. Mr. Koppe says that this 9 / 22

10 evidence is clearly explosive and crucial to our defense. It is also corroborated by an East Zone messenger who told OCJI about the meeting and how one of the leaders at the meeting would take power from Pol Pot. Mr. Koppe stated that it defies reason that the Chamber would deny admitting this evidence, and he can only see it as an effort to protect the Manichean narrative and a violation of Nuon Chea s right to present his defense. The defense has requested chamber to reconsider their decision, and with permission, defense will continue to refer to it. The key point defense wants to make is the vast extent of the internal rot in the CPK, from standing committee members to many leaders in military and center divisions, and in all zones apart from southwest. These include people in government today. There is extensive evidence linking the collaborators to each other, even when they wouldn t ordinarily have reason to work to together. Ultimately the evidence suggests that Vietnam had established a party called the Kampuchea People s Party. Next, Mr. Koppe discussed the collaborators in the DK period. Vietnam internal collaborators wasted no time by trying to bring down the CPK. Witnesses detail four attempts to assassinate Pol Pot between and There was a failed East Zone attempt to take control of a radio station, and there were skirmishes along Thai and Vietnam border. When these early attempts failed, they ramped up efforts on first major phase of Plan A, which had two features of the 1976 coup d etat. First, an explosion in Siem Reap destroyed a munitions depot. The day before, a sector secretary had held a meeting with 30 leaders, they spoke of a rebellion, and they thought was to start a revolt. The timing makes it likely that it was an effort to start a rebellion. Defense had requested this Chamber to investigate further, was denied, and now submits a request for reconsideration in the brief. The second feature of the 1976 coup d etat happened six weeks later in April 1976, on the day king was going to announce his resignation as DK head of state, grenades were thrown outside the royal palace. A cadre, Yim Sambath, was arrested and admitted to throwing the grenades. And there is evidence that he was not mistreated at S-21 so Mr. Koppe is mentioned the evidence. At this point, Judge Nonn interrupted to remind Mr. Koppe that the Chamber does not rely on torture-tainted evidence. Judge Lavergne, Judge Nonn and Mr. Koppe discussed the guidelines read on the first day. Mr. Koppe is permitted to refer to the S-21 statement of Yim Sambath and Koy Thun, as Mr. Koppe has previously made significant arguments that neither was mistreated during their imprisonment at S-21. Mr. Koppe also requested reconsideration of a denied request for an investigation into the records of defectors that could have shed light on Chan Chakrei s treasonous activities. Evidence shows that Sector 106 secretary Sot worked together with key Vietnam collaborator 10 / 22

11 Koy Thun to coordinate the Siem Reap bomb explosion. Koy Thun had explained in his S-21 statement that he had educated Sot who was an active agent of the CIA, i.e., a traitor. Evidence shows that Chan Chakrei was behind the palace bombing. The prosecution had said that these two events were unrelated and that the paranoia of the CPK had led to unexpected purges. Mr. Koppe maintains that there is compelling evidence that there a link between the two events, apart from the timing, and that is Chan Chakrei s connection to Koy Thun. Chan Chakrei had originally been a member of Koy Thun s North Zone, and Koy Thun had introduced him to the CPK. The situation that the CPK was facing was that several of its top leaders had been implicated in internally destabilizing events, one year after the liberation of Phnom Penh. Koy Thun was put under house arrest, and his arrest required one day and one night and many special forces to achieve. Mr. Koppe stated that the first failed coup d etat made them intensify their efforts. From 1976, they planned a second coup, this was called second phase of Plan A, the 1977 coup. This coup is also the least known and most misunderstood of the Vietnamese existential threat. Mr. Koppe stated that the prosecution dismissed the 1977 coup as a false defense narrative and after dismissing themes in witness testimony that corroborates the coup, the prosecution suggested that every soldier in the rank would make up a false story to say that they were part of the revolution. However, witness evidence supports Nuon Chea s case because it is true. The evidence referred to is 1) multiple testimony accounts of witnesses in this courtroom, 2) those who gave accounts to DC-Cam or journalists, 3) or people interviewed by Thet Sampath and Rob Lemkin, which offer eyewitness first-hand accounts of their involvement in a rebellion and coup attempt. In the defense brief, the defense has identified nine witnesses who detail how half of the 1977 coup plan was to strike at the CPK heart by capturing the DK center, Phnom Penh. All nine witnesses say the plan leader was commander of Division 310, which was perfectly located to carry out the attack. Units of Division 310 had been based in and around Phnom Penh since the liberation. There were forces prepared in the East Zone and in the North Zone. The prosecution suggestion that the coup was a fantasy is undermined by testimony of witnesses, where they describe the plan as having three objectives: 1. Cut of Phnom Penh s access, seize control of Kampong Thom airport, and take over the radio station; 2. Cripple Phnom Penh s defensive capabilities by targeting the defense ministry, supply warehouses, and military material; and 3. Target and kill Pol Pot himself. An additional ten witnesses offered eyewitness accounts of the second part of the plan. While attacking Phnom Penh, they would break the CPK spine by seizing control of the country. All the witnesses trace this back to the Northwest Zone. Nine of the ten agree that Ruos Nhim was the ringleader, who was in-law with Sou Phim in the East zone. Six others name Sou Phim, while others name Chan Chakrei and Vorn Vet as being involved. 11 / 22

12 The Northwest Zone, like Division 310 was ideally situated for the attack because the Northwest Zone was the heart of the CPK rice production, so together with sector 106 and the East Zone, they occupied swaths of the border with Thailand, Lao, and Vietnam, and could block CPK routes of entry and exit. The witness testimony confirms that the nationwide attack had two objectives: to deplete the CDK s nationwide capabilities and to seize vital territory. And upon arrival in Phnom Penh, their efforts would join the East Zone and Division 310, and would crush the CPK legitimated DK government. These 19 witnesses in total show that widespread steps were taken to prepare to give effect the plot. The steps included sabotage, subversion, stockpiling, meetings, and recruitment drives. Vietnam s collaborators sought to worsen conditions in the country through sabotage. This is why the late Ieng Thirith said something was wrong in zone, leading to Pol Pot s formal investigation of the zone. Several witnesses testified about the investigation; one said he received instructions from Nuon Chea regarding it. Two witnesses testified that food had been stockpiled for so long that it went bad. There was evidence that stockpiles were also deliberately destroyed. One person interviewed by Rob Lemkin and Thet Sambath said that medicines were destroyed, and another describes how munitions destroyed. Ruos Nimh started waging psychological warfare by stirring up discontent regarding the financial situation, later he started making currency and using it in Northwest Zone. Someone staged fake clashes on the Thai border so as to seem too occupied to be redeployed, and in the autonomous sector they stopped planting mines near the border. Mr. Koppe reminded the Chamber that if Hu Nim or Hun Sen had testified, they could have corroborated this important evidence. Next, Mr. Koppe discussed wide deviations from CPK policy. Witnesses who had appeared in this court personally transferred weapons in District 310 s preparation for a coup. A company commander and combatants testified about preparing to take over tank, marine, and aircraft capabilities in District 310. There was widespread stockpiling (food, arms, petrol, clothes) and new uniforms were distributed in the Zone that had been collected from Vietnam. The situation was the same in the Northwest Zone. Witnesses confirmed the seizing of a cache of weapons, seeing military materials, the stockpiling of clothes, caps, hammocks, rice, sugar, and fish for forces in Phnom Penh and the Northwest Zone. Lastly, there were efforts to hold clandestine meetings and recruitment drive in preparation for the 1977 coup. Witnesses described how meetings to brief on rebellion s plan were held, one had 500 people, another an entire battalion, and the utmost secrecy emphasized in the meetings. There was a secret meeting in forest in Battambang, Northwest Zone, by Ruos Nimh, Vorn Vet, and 100 ranking military officials from the zone. At this meeting Ruos Nimh described the secret plan; Vorn Vet said they could appeal to outside help if needed. There were up to 30,000 people 12 / 22

13 recruited from local work brigades in the Northwest Zone. The 1977 coup also failed, but it is worth noting that the standing committee still exercised considerable caution and restraint in its investigations. Division 310 commander (Ouen) was tracked for three months before arrested. Others say that after plot was discovered, they were assigned to different work, some reported that nothing happened at all. Leaders and forces in zones and autonomous sectors acted in opposition to Nuon Chea and to the policies of CPK, and CPK responses to such treason was lawful. Mr. Koppe continued by detailing the events surrounding the 1978 coup. Following the failure of the 1977 coup, the East Zone decided to stage another coup around May of This coup resulted in the suicide of Sou Phim, and the story was completely distorted by the Manichean narrative to try to justify Vietnam s imperialist efforts. Mr. Koppe also intends to correct the historical record on three key points. 1. The 1978 coup was not the final stand of freedom fighters against a monstrous regime. It was a calculated plan sponsored by Vietnam. Leadership in Vietnam formally approved the coup led by Sou Phim. Hun Sen returned to Phnom Penh in a Vietnamese tank and accompanied by Vietnamese troops. 2. Sou Phim was not a hapless leader, but, with other leaders, had control of superior forces and the vast majority of the Khmer Rouge armed forces. He had formidable power in the East Zone which he used to try to overthrow the DK government. Therefore, the rightful and legitimate government of DK had every right to oppose the Sou Phim organized and Vietnamese supported coup. There is evidence that Vietnam approved of the leadership/coup by Sou Phim coup was not a spontaneous uprising but a product of careful planning, with support of Vietnam. By 1977, the East Zone s preparation for the coup was in full swing, with cadres building secret food reserves, stockpiling weapons, stockpiling food and medicine, and recruiting forces. After thwarted coup attempts by Vietnamese collaborators, Vietnam decided to take matters into their own hands. They also gradually escalated internal disruptions, culminating in an invasion in Vietnam did this through several strategies. First, Vietnam played off the cold war rivalry and received assistance from the Soviet Union, whereas Cambodia was supported by China. Second, Vietnam recruited a band of Cambodians who fled to Vietnam to be their agents, build a military revolution front, gave Vietnam a cloak of legitimacy, and afterwards installed them as a puppet govt in in Phnom Penh loyal to serving Vietnamese interests. Late King Father Sihanouk called them Vietnam s pitiful puppets, referring to Heng Samrin. Third, Vietnam laid the foundation to control Vietnamese propaganda, broadcast Cambodian misdeeds, placing blame on Pol Pot, and making Vietnam look humanitarian and CPK look isolationist. Vietnam was initially condemned for their flagrant violation of international law by their invasion of Cambodia. Most states across the board condemned the invitation but the Soviet Union veto 13 / 22

14 meant nothing would pass in the U.N. security council. The members did pass a draft resolution passed. Each U.N. resolution called for the withdrawal of all foreign troops and affirmed right of Cambodia to their country. The U.N. rightly recognized the DK as the legitimate government. And countries imposed severe sanctions on Vietnam until its army withdrew from occupying Cambodia. Vietnam was eventually seen as the pariahs of the international community. This is crucial historical background for this case. And this chamber must look beyond the Manichean narrative. Th head and tail of the crocodile is not simply a historical recounting for the sake of posterity, but it has a legal significance that this court must consider carefully because it absolves Nuon Chea for crimes charged, because it demonstrates that key elements of the mode of liability, namely JCE-1, ordering and superior responsibility have not been proven beyond reasonable doubt. And without proof, Nuon Chea cannot be held responsible for any of the crimes charged. Mr. Koppe stated that the International Co-Prosecutor argues basically that there is a JCE in our case because Pol Pot, Nuon Chea, and Khieu Samphan ate their breakfast together regularly. Now, although the Co-Prosecutors argue that it is unlawful to detain a person in someone else s network because that is, as they call, guilt by association, they are now saying that being breakfast buddies is enough to show that there was a common criminal purpose and action in concert to establish a joint criminal enterprise. Of course, the argument is totally contradictory and undermined by the evidence. Lastly, Mr. Koppe addressed the legal significance of the crocodile. Specifically, the crocodile s account of treasonous factions demonstrates that there was no common purpose. In fact, a subsection of the alleged JCE members were actively attempting to undermine the legitimate DK government. So even when a common purpose can be found of implementing a rapid socialist revolution and defending against a revolution, the policies are not criminal in nature. The Chamber must determine the existence of crimes in accordance with the law. It is not the place of this tribunal to pass judgment on merits of political ideology. The coup d etat attempts show that there was no group of people acting in concert. And where charged crimes were committed in areas under the control of Vietnam s collaborators, they were done without the direction, knowledge or approval of Pol Pot, Nuon Chea and the leaders of the DK government. A reasonable inference is that an entirely different JCE was responsible for such crimes and they were committed to incite dissatisfaction with the DK. The crocodile demonstrates Nuon Chea s lack of effective control and relationship of authority over the perpetrators who were actively undermining the regime, therefore he cannot be held responsible for ordering them or as a superior. Mr. Koppe said that later the team will discuss why the arrests and detentions in the detention centers were lawful, and Mr. Koppe yielded the floor to Liv Sovanna. CPK National Defense and Security Policy Liv Sovanna presented on the CPK national defense and security policy. He said he would 14 / 22

15 address the prosecution case discussed earlier this week and the so-called Manichean narrative and what is known as so-called enemy s policy. Mr. Sovanna said that, in fact, there was no such thing as enemy s policy. What the CPK instead introduced was a national defense and security policy similar to policies that countries worldwide have conducted, even today. Most importantly, as the defense will explain, it was both legitimate and lawful. Mr. Sovanna stated that, as they do with their case in general, the prosecution faithfully follows the Manichean narrative when it comes to security in the DK by describing the CPK as a bloody, cruel, and paranoid clique that aimed to kill every Cambodian citizen. Although this is the legend that has always been told about the CPK, the evidence does not support it and the prosecution is left to distort the evidence to make it fit their narrative. Mr. Sovanna stated that one way the prosecution did this was to expand the meaning of the term enemy, as used by the CPK, to include basically any person living in DK. In fact, this was not so. The prosecution also argued that enemies had to be killed. However, the evidence related to the laws that the CPK actually established shows this was not the case. As for Nuon Chea s role in implementing this alleged policy, the prosecution says that Nuon Chea controlled the search for internal enemies and was the one who told cadres to kill. Once again however, the prosecution are making claims without evidence. The evidence shows that Nuon Chea only warned cadres about enemies in the ranks. There is no evidence to show, for example, any teaching methods for killing, or whether or how Nuon Chea controlled a search for internal enemies. Mr. Sovanna stated that Nuon Chea s role in the CPK was focused on propaganda and education. He led political education sessions to instruct the cadres on the history and objectives of the socialist revolution. These sessions probably concerned economics and agriculture. In addition, since CPK documents discussed the threat of both internal and external enemies, Nuon Chea s political instructions sometimes encouraged cadres to be vigilant in the face of these kinds of threats. This is far removed from the prosecution s suggestions that Nuon Chea instructed cadres to execute or mistreat anyone. There is no relevant evidence suggesting that he did so. Moreover, it is crucial to remember that at the time, DK was in a state of emergency and facing an armed conflict with Vietnam. It was a country whose very survival was threatened. It was completely normal for countries in such a situation to emphasize vigilance when it comes to security measures. The prosecution s case on the enemy s policy depends heavily on Duch s testimony. As Mr. Koppe will demonstrate later, this testimony is unreliable. Mr. Sovanna stated that the prosecution s case is also based on the written statements of people who did not testify in this Chamber and whose evidence could not be tested. They use out of court documents, secondary sources, and unauthenticated documents. As the SCC found in Case 001, and as the prosecution should therefore know, this evidence is simply not good enough. According to the law, these sorts of unauthenticated statements have very little 15 / 22

16 probative value to bring to this court. Especially when they are not supported by other evidence and have not been tested in court. Ultimately, the prosecution case is pure speculation. It is not supported by any reliable evidence and it fails to meet their burden of establishing their case beyond reasonable doubt. Mr. Sovanna asked the Chamber to listen with an open mind, and they will see that the CPK s policy was no different than policies implemented by countries to protect themselves when threatened by other countries. Witness testimony and other reliable documents in the case file show that the CPK s policy was legitimate and lawful. To properly understand the CPK s policies requires taking into account the armed conflict that threatened the country. CPK took control in April of 1975, Cambodia was on its knees, and had to be completely rebuilt. At that time, as described in detail in our brief, Cambodia had come out of a 7-year bloody civil war with the Khmer Republic. U.S. bombing campaigns over Cambodia left much of Cambodian territory destroyed and its people terrorized and displaced. The Khmer Republic had shut down all state institutions, including judicial ones. Mr. Sovanna asserts that the prosecution claim that the CPK destroyed existing legal and judicial structures is totally incorrect. The prosecution did not cite a single source in support of this claim in their brief and the Khmer Republic left no such structures to destroy. In addition, the CPK had had to resist Vietnam s long-standing imperialist ambitions and threat from the time the CPK assumed power. These threats were internal, as evidenced by Vietnam s coup-de-tat. They were also external, through blatant acts of aggression that escalated to a full blown armed conflict. All of these factors put the DK in a constant state of emergency. To survive this critical time, the CPK had to take a strong stance on national security, accordingly, the policy that the CPK introduced, aimed to strengthen and protect Cambodia from an existential threat both inside and out. In moments like this, strong defense and security policies are a standard reaction of countries worldwide. Mr. Sovanna stated that it is important to recognize that if it were another country in the same context, the same security policy would likely be seen as reasonable and necessary. So, what is the difference here? The difference is that because of the Manichean narrative, everything that the CPK did has to be seen as pure evil. And this is the case that the prosecution has put forward. Mr. Sovanna explained that the problem is that this not how things should work in a proper court. To support their claim, the CPK saw enemies everywhere, all of whom that had to be killed. The prosecution argues that CPK publications, reports, and telegrams often instructed cadres to smash the enemies. The CPK did widely use loaded language to describe their policies. They used metaphors echoing war-like language: purge, smash, fight, sweep clean, battlefield, or victory to describe perfectly ordinary tasks like harvesting rice or construction projects. Such language was a form of policy expression. It cannot be taken literally, and it does not prove any criminal intent whatsoever. The use of such policy language is common in political discourse around the world. For example, during the attempted coup in July 15, 2016, Turkish President Erdogan compared attackers to a virus and a cancer that enveloped the state. Likewise, both the former French President and the former U.S. President Bush have often used war like language to describe terrorist attacks. More importantly, a Trial Chamber in 16 / 22