Kambol (Phnom Penh, Cambodia). 16/02/2009: The statement made by civil party Phork Khan before the court differed from that he had previously made in writing. “The truth is what I told you orally.”©John Vink/ Magnum (file picture)
Ka-set
http://cambodia.ka-set.info
By Stéphanie Gée
08-07-2009
The hearing on Tuesday July 7th echoed that of the previous day. S-21 survivors who were until then unknown succeeded at the stand and gave testimonies that did not always tally the written statements they made in their civil party applications or the way they told their stories to journalists. In addition, they gave details that did not match what is known to this day of the infamous detention centre and, as the defence did not fail to point out, there did not seem to be any record of their stay in S-21. One believed them to be sincere when they told the sufferings they endured, but the doubt was there: were they actually detained in S-21 or in another prison? The embarrassing doubt may discredit their testimonies, but also those of indisputable survivors heard last week, prompting some to wonder about the groundwork that should have been done by their lawyers.
Not much in the file
Like on the previous day, the defence indicated from the outset they expressed doubts over the fact that the forthcoming witness was detained in S-21. Lay Chan, 55 years old, was a farmer who joined the revolutionary forces before 1975 and became a messenger for them. During 1976, he was arrested and imprisoned for some three months at S-21, he said, accused of participating to a “theft of rice for the enemy.” During his stay in what he believed to be the prison directed by the accused, the guards asked him to dig, outside and at night, holes for the planting of banana trees, as he was then explained. Blindfolded most of the time, all he saw was his airless individual cell that smelled of unimaginable stench, in which he could not stand because the ceiling was so low, he explained.
“Were you able to learn the name of your place of detention?”, president Nil Nonn asked him. “I didn’t know it at first. But one day, I overheard a conversation between two guards who said it was Tuol Sleng school. […] That’s how I was able to find out,” the witness, who joined as a civil party, answered. He only returned once to the premises since the fall of the Khmer Rouge regime. “The place had already been changed. It did not quite look like what it used to be anymore,” he commented.
He was interrogated twice and severely beaten twice, until losing consciousness. Abuses he still suffered from to this day, he said – in particular, he lost the use of his left ear. After three months, he was boarded on a vehicle that dropped him on the street in Phnom Penh, where he was picked up by a moto that took him to a place where he was re-educated through work for a year, assigned to the gathering of firewood. Then, he said, he was reinstated in his unit and put to work in the kitchen garden.
Kambol (Phnom Penh, Cambodia). 07/07/2009: Civil party Lay Chan described with emotion and in detail the terrible detention conditions at “Tuol Sleng school.” But according to Kar Savuth, co-lawyer for Duch, there “may be a confusion between two prisons”©Stéphanie Gée
Going through Lay Chan’s file, the president observed “there was not much” in terms of documents to support the civil party’s request for reparations. His lawyers, in charge of civil party group 3, intervened: “We were unable to find other documents, but we will ask him questions that will help shed light on his case,” they promised.
From the written testimony to the oral testimony
Judge Thou Mony: “What were the exact words used by the two guards whose conversation you overheard when they talked about the Tuol Sleng school or prison?” “Tuol Sleng school,” Lay Chan stated emphatically. “Apart from that discussion, did other sources allow you to state that you actually were in S-21?” “I was able to observe it was a detention centre because I would hear the cries and sobs of several people, even if I could not see them,” the witness answered. “During the three months you were detained, did you see other prisoners?” “During that time, I did not have the right to move freely or to come closer to other detainees.”
The president followed with other questions and unexpectedly asked if the witness heard a generator working during tough interrogation sessions. Lay Chan had heard a noise but did not know whether it was a car engine or a generator. “In your complaint, you said a generator was plugged in so as to cover the cries of people being tortured. That is what’s written in your civil party application. That is why I am asking you this question.”
The prosecution – who offered yet another international face in the courtroom, Anees Ahmed – asked the witness if he knew the city of Phnom Penh before his arrest. “Not very well,” Lay Chan confessed.
Interrogated by one of his lawyers, Kim Mengkhy, he stressed he had never shared his suffering with his relatives, not even to this day. When another lawyer asked him about food rations – “it made me think of food for animals” – and how he was able to survive if he had no access to water, the witness suddenly broke down. He lifted his hands to his face as if to hold back his tears. Pulling himself together with courage, he replied: “When I was thirsty, I did not dare to ask for water. So, when I had to relieve myself, I would drink my own urine.”
Duch: “Nothing proves he was detained in S-21”
The accused was invited to make a few observations. Sitting straight behind his desk, Duch declared he did not know “how [Lay Chan] could have been released [from S-21]. I had received the order to smash all the prisoners under my control.” He added he had not found the civil party’s name in the list of S-21 detainees and hammered, like for the previous day witness, a “there is nothing proving me that he was detained in S-21.”
Tuol Sleng or S-21?
His Cambodian lawyer, Kar Savuth, returned to the words “Tuol Sleng school” that the witness allegedly heard from young guards. “Back then, under the Khmer Rouge, the place was known under the codename S-21 and it was not referred to in any other way. […] How could the guards have talked about Tuol Sleng prison amongst themselves?” Lay Chan maintained his statement. He was sure of what he heard.
Confusion between two prisons for the defence
Kar Savuth reviewed the witness’ description of the cell: one-meter wide and a very low cement ceiling. “Maybe you confused S-21 with another place, because in S-21, the cells were small indeed, but the ceilings were rather high. The individual cells were built in classrooms and were as high as the classroom. As much as you would have jumped, your head could not have touched the ceiling,” the lawyer remarked, rather awkwardly. Lay Chan maintained his claim. Kar Savuth insisted: “I think there may be a confusion between two prisons because there were many detention centres under the Khmer Rouge.”
“I carry tangible evidence on my body”
The lawyer attempted to assert his point of view. “Do you have evidence of your detention in S-21 and your release from S-21? Because anyone who entered S-21 had to write a biography and none of them could be released. Duch did say he acknowledged the sufferings you endured because of torture. But you are telling us you were not photographed and you were interrogated twice, while there is no report in the S-21 archives. How could you support your claim that you were detained in S-21…?” The witness answered: “I do not have any documents. I have no access to documents. But I carry tangible evidence on my body. I have a scar on my left ankle which is a permanent document that will not vanish.”
“I am not questioning in any way that you suffered under the Khmer Rouge,” the lawyer specified. “But the questions I am asking you aim to ascertain whether you may have made a mistake between S-21 and your effective place of detention. All the more so since you were blindfolded and barely had a chance to see anything. […] You did not have a visual knowledge of S-21. You say that your scars are the material evidence of your sufferings. I fully accept that, but to say conclusively that you were therefore detained in S-21, that may be going too far.”
The witness was thanked. Another took his seat in the early afternoon.
A survivor from Choeung Ek
He was Phork Khan, 57 years old, a Khmer Rouge soldier since before 1975 – when he participated to the liberation and evacuation of Phnom Penh –, who started by evoking the fate of his wife and a cousin, “sent” to S-21 and whom he never saw again. He explained he had found the latter’s biography in Tuol Sleng, but not that of his wife. In 1978, he was arrested, although he had always “done his best for the Angkar” and ended up in a place he later found was S-21, where he was interrogated and whipped. He heard about “Brother of the East” (Duch), whose arrival in the interrogation room was announced by his torturers “Hor and Seng” during his first interrogation. “I did not know who he was. I was always lying face against the floor and the person came in and sat on a chair. I was interrogated for a long time. […] Brother of the East still remained sitting 15 to 20 minutes in the room, muttered a ‘hum’ and then left.” His detention lasted “maybe three to four months.”
One day – the witness could no longer remember exactly when –, he and other prisoners were “hurled like pigs” into a truck for an unknown destination. After a one-hour journey, they were put in a wooden house from which they disappeared the one after the other. One of the very last to go, he thought his final hour had come. Blindfolded and tied with a rope around their neck, they were pushed to the edge of a pit. By leaning forward, Phork Khan dodged the blow that was aimed at his nape and instead struck his ribs. He fell into the pit and was quickly covered up by the bodies of other prisoners hit in their turn. “I remained unconscious all night long.” When he came to life, he felt weakened and disoriented. He managed to heave himself out of the pit and later to get rid of the ties on his wrists. He heard detonations coming from Monivong bridge, which was why he “assumed it was January 6th 1979.” “I did not know then that I was in Choeung Ek,” the field on the outskirts of Phnom Penh where S-21 detainees were executed. With considerable effort, he reached the river and clung to a wooden plank to be carried by the current until Chroy Changvar bridge. Later, he met Vietnamese and Cambodian soldiers, who entrusted him to a man “who had a boat” and took care of him until he was healed. He told his story in one breath, for more than thirty minutes, his eyes lowered, stony-faced, and making only rare gestures.
“Can you enlighten us?”
President Nil Nonn returned to Phork Khan’s escape. Which river was it? “I think it was the Tonle Sap.” “Why did you not escape by the road? The river was dangerous because it was the time when the water overflows from the Tonle Sap. During the dry season, the water goes in the opposite direction. How did you manage to float against the current?” Phork Khan answered he did not swim but floated on a piece of wood, “which took two or three days.”
Kambol (Phnom Penh, Cambodia). 07/07/2009: President Nil Nonn noted the inconsistencies between the written and oral statements made by Phork Khan©Stéphanie Gée
Nil Nonn pursued. “In your complaint, you describe the facts by saying that in ‘October 1978, Mr. Kang Guek Eav, alias Duch, ordered his soldiers to interrogate me. I was unable to walk, so they transported me in a hammock so I could meet him.’ Did that incident happen? You did not mention any of this in your oral testimony…” “Many years have passed. There may be some confusion or mistake,” the witness conceded. “[…] I do not remember the hammock scene and being transported in a hammock.”
The judge noted that in the complaint, the witness had also written that Duch had asked him if he wanted to die in the same way as his wife. “You describe that in your request relative to the civil party application. So, are these facts true or not?” “As far as I can recall, they are not,” Phork Khan answered, before later remembering that those were actually words spoken by his interrogators.
Nil Nonn continued to read from the report on the facts made by the witness. “‘In November 1978, the situation was marked with confusion. One evening, Duch ordered all the prisoners, including the applicant, to line up to be executed one by one. The applicant was one of the last in the line. As it was pitch black, he sneaked into a nearby pond. That did not attract the guards’ attention and around one in the morning, he was able to climb a fence with his hands still tied, went through a banana grove and reached the riverbank. […] Then, he went to Prek Khmer with an uncle who helped him hide in the forest and kept him in his house at night until January 7th 1979. He then returned to his native village.’ This story contrasts quite starkly with the facts you have told us, doesn’t it? […] I do not understand either. […] And Prek Khmer is in Kampong Cham province. Can you enlighten us? Which series of events is the right one?” “The truth is what I told you orally,” the witness claimed. “Can you read?” “Yes, I can read,” Phork Khan confirmed. He specified he was interviewed in his village by a representative of the human rights NGO Adhoc. “I do not think I stated the events as you read them to me. […] I don’t know if the statement was written clearly. In light of my difficulties, I did not proofread what is written here. I apologise.”
S-21 or not S-21?
“Do you maintain you were detained in S-21 or do you have any doubt regarding your place of detention?”, the president asked him unambiguously. “I was put in a place of detention. Back then, I did not know it was called S-21 or Tuol Sleng because I was blindfolded. But I could assume it was a security office. It was only in 2008, when I went with the NGO [Lawyers Without Borders] to track the biographies of my cousin and my wife that I learned the name of the place.” Nil Nonn invited him to give more details on the buildings he saw. “The building was made of wood. The interrogation room was on the ground floor and there were trees all around…”
Confusion regarding documents added to the civil party’s file
Judge Lavergne returned to documents that were filed to support his civil party application, in particular the analysis of the confessions of someone called Sok Nam, a name that did not remind the witness of anything. “Do you know how this document came to the tribunal, to the hands of your lawyers? Maybe your counsels will be able to explain us this mystery.”
Kim Mengkhy, one of his lawyers, then said he had done research on the website of the Documentation Centre of Cambodia (DC-Cam) and provided his client with some documents to examine, as he believed they were connected to his case. The explanation was rather confused. His international colleague, Martine Jacquin intervened to make “a general observation.”
Unimportant changes in the declarations?
“Your Honours, yesterday and today, you have observed, with some annoyance at times, that the witnesses before you made statements that were much less precise than the witnesses you heard previously. I think each of these situations must be placed back in their context. The witnesses you heard previously had a chance to be heard by the co-Investigating Judge, by tribunal investigators. They were thereby able to make their testimonies more specific, the investigation services were able to make the documents more specific and this allowed you to obtain very complete testimonies. […] We took charge of these files only when the civil party applications were settled, and I will recall, in some cases, with emergency deadlines that put us under rather difficult conditions. We noted ourselves, by discovering these files one by one, by taking the time to meet these civil parties, that in reality, the investigation work that had been done was accurate on many points, but erroneous on others. Nonetheless, it remains that these testimonies are highly interesting and, in my opinion, provide important information.” After recalling they attempted to gather as much supplementary information as possible, “which was much more difficult for us to achieve as we do not have the material resources of the tribunal’s investigators,” Martine Jacquin pursued: “Today, you have noted changes in the statements. I believe that what is important is what this man is declaring today, and I think that the written testimonies that were collected indeed included mistakes.” Something she justified by the fact that the work was done by Cambodian human rights organisations, by “young investigators who were inexperienced and ill-equipped,” which nonetheless made it possible to “re-establish a number of files.” The lawyer added that in the civil law tradition, “a witness was not prepared for his hearing.” Meanwhile, Duch has prepared his case thoroughly.
Phork Khan’s hearing is continuing on the next day and it will be interesting to hear what the accused has to say about his testimony.
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