Duch pulls apart a civil party’s testimony, claiming he usurped the identity of another

Kambol (Phnom Penh, Cambodia). 06/07/2009: Duch succeeded, through a rigorous demonstration, to instil doubt: was the witness really imprisoned in S-21?
©Stéphanie Gée

Ka-set
http://cambodia.ka-set.info/

By Stéphanie Gée
08-07-2009

Monday July 6th, the defence set the tone with a warning: their client, Duch, “expresses doubt as to whether the witness we are going to hear was detained in S-21.” The 57-year-old witness took his seat in the courtroom, thin gold-rimmed glasses on his nose and his arms put on the armrests. In 1979, the shopkeeper from Banteay Meanchey province changed his name, Hea Hor, to Ly Hor, he explained, before telling a story that contradicted in many points the testimonies of survivors already heard. In addition, to the general surprise, he seemed not to know the documents that were added to his application to become a civil party…

Many details conflicting with what is known of S-21
Enlisted by the revolutionary forces in regiment 119 since 1972, Ly Hor, he recounted, was arrested and detained in office 15, under the authority of sector 25, in 1976, before being transferred to Takmau prison and sent to Tuol Sleng prison, then Prey Sar prison, before finally escaping and managing to return to his native village. He stole food to satisfy his hunger, which was the reason for his arrest. After this short presentation, president Nil Nonn started a detailed interrogation. The answers of the witness, who is in his fifties and joined as a civil party, were brief and rarely came with details.

The son of farmers said he was interrogated only once in the prison which he alleged to be S-21, according to what he was told by a guard. “The interrogator told me I was stubborn and tried to scare me with an electric cable and an instrument he called a ‘buffalo penis.’ I told him, ‘Yes, I am scared, but my life is in your hands. If you want to kill me, you can kill me.’ […] He threw a cigarette butt and discarded food at me and ordered me to eat them.” He was threatened but not hit, he summarised.

The surprising details in the descriptions made by Ly Hor included the following: during his transfer to S-21, he said he was the only prisoner brought in then, whilst the several prisoners were usually transferred at once; when he arrived, he confirmed he did not receive an identification number, as was the case for the majority of the newly-arrived; he was detained near the kitchen, he stressed, whilst no one, to this day, mentioned that detainees could be kept in that area… He described a small cell made of walls of concrete and a cement floor, and a corrugated iron roof. “No, I was not made to change from the clothes I wore when I arrived.” The president: “What clothes did you wear?” “Black clothes.” Yet, other witnesses before him explained that black clothes were systematically taken away in S-21. Ly Hor also claimed he received small bowls of rice for food when other survivors said their meals only consisted in a few spoonfuls of light gruel. Another discrepancy with the testimony of other S-21 survivors: during his detention in S-21, Ly Hor said that once every three days, he and his co-detainees were taken out of their cell to wash themselves. All those who testified before him described washing as limited to being watered collectively with a hose in their very cell. The witness claimed he once saw a detainee die of illness and be “immediately” taken away by the guards. This was another point of discordance, as the other survivors reported it took time for guards to take the prisoners’ bodies out of the cell. Etc.

Ly Hor did not remember very clearly, he admitted consistently. At mid-day, a Cambodian woman in the public gallery wondered out loud: “If he doesn’t remember anything, why is he called to testify?”

An out-of-the-ordinary escape under the Khmer Rouge
Then imprisoned in Prey Sar (S-24), he was made to dig canals. After a little more than a month, Ly Hor escaped one evening. “I told myself that if I stayed there, I was going to die.” He crossed the river and was chased, but he succeeded in escaping thanks to the darkness. He managed to return to his home, where he stayed hidden until the fall of Pol Pot’s regime. “My father was terrified that I may be found. He therefore informed the district secretary, whom we knew, and he said: ‘Don’t worry. Let him stay there. If someone comes for him, I will say he is not there. And if he needs rice, I can give him some.’ That’s how I was able to survive.”

“Where did you get this document?”
After the break, the president, obviously assailed with doubts, insisted on returning to the witness’ biography. He reviewed in detail the written statement made on the basis of his story as part of his application to become a civil party and noted a few contradictions with what Ly Hor just said. Here, he recognised having “confused S-21 with Takmau prison;” there, he conceded not being specific enough. Another document was read, his confession, which was also added to his civil party application. “Where did you get this document?”, Nil Nonn asked him. “I don’t know, but I confirm it is my biography.” The text mentions offices 44 and 43. When the president wondered what these offices were, the witness said he did not know.

A civil party badly prepared by his lawyers
In the early afternoon, judge Cartwright – after stressing she understood that it was “difficult for the witness to relive these events” and he was “intimidated” – asked Ly Hor when he talked about his story with his lawyers. “Last month, but I don’t remember the exact date.” The judge remarked to Alain Werner’s attention, one of Ly Hor’s lawyers: “Why were you not aware of the documents we have today when they were filed in support of the witness’ civil party application?” “I was aware of them,” the lawyer answered, “but I was working on the basis of an informal translation, as I am still waiting for an official translation of this document.” The judge reminded him he was working together with Cambodian co-lawyers who were “perfectly competent” and forcefully stated: “You will probably agree with me that the civil party we are hearing today was very badly prepared to what awaited him.”

Kambol (Phnom Penh, Cambodia). 06/07/2009: Witness and civil party Ly Hor (on the above picture)
©Stéphanie Gée

Alain Werner’s reaction: “We will ask the intermediary organisation to provide us with an affidavit to inform us of the origin of the documents added to the file. […] I concede that this should have been done earlier. That being said, I do not quite agree with you that the civil party was not sufficiently prepared. I have prepared the civil party myself three times…” The New-Zealand judge did not want to prolong the difficult experience for the civil party, but she added sententiously: “From now on, I expect civil parties to be better prepared than today.”

“We are in the thickest fog”
Interrogated by judge Lavergne, the witness recognised he had met a representative from the Documentation Centre of Cambodia (DC-Cam) on the previous month, but did not remember what he was told nor if he thumbprinted a statement. Looking for clarification, the French judge said: “At this stage of the proceedings, I would like someone to give information to the Chamber as for the moment, we are in the thickest fog.” Alain Werner: “We believe that the document read this morning was found in S-21. That is what we were told and we have worked on the basis of that hypothesis.” The judge then asked if the document established any evidence that the civil party was detained in S-21. “It may be the case. We may hear another witness who will be able to vouch for this fact, but on the basis of the document, there is nothing written there that proves the document came from S-21.” Jean-Marc Lavergne returned to the meaning of offices 44 and 43. The lawyer recalled that only the civil party could shed light on this point, yet “he said this morning he didn’t know and I am unable to give you any further explanation.” The judge had no more questions, unless the accused or the office of the co-Prosecutors were able to shed light for the Chamber on this matter, he whispered laughingly.

The co-Prosecutors threw in the towel. Called in the last resort to provide some clarification and claiming he based himself on a document which reference number he quoted from memory, Duch believed he could safely conclude that office 44 “was a security office of division 703, established after April 17th 1975.” “As for office 43, I am not aware of any document that would enable me to say more, but I would say it was the psychiatric hospital, that is Takmau prison.” The international co-Prosecutor later claimed, after examining documents, that office 43 was actually located west from Wat Langka, in Phnom Penh, and was a re-education office.

A most vague memory
Questions from the co-Prosecutors. “Where was the Takmau psychiatric hospital where you were sent and what was the reason for your transfer?” The witness did not know much about the place, he answered. Did he remember the person who interrogated him in S-21 and his name? No, he could only give a vague description: “someone with a rather pale complexion, medium height and rather thin.” Later, he claimed he would be unable to recognise him on a photograph. Did you ever meet Duch in S-21? No, never.

Alain Werner did not contest his client’s testimony included “unclear things.” “How many times were you told you were detained in S-21?” “I knew it was S-21 because the guard who watched the detainees told me: ‘Now, you are leaving S-21 [for S-24], so make sure you do not ever escape again.’” “How many times were you beaten in S-21?” The witness did not answer the question directly and the lawyer insisted, asking him to focus. “Of course, I was hit once, when I knocked down a box full of urine, and I was deprived of food.” Following his detention in S-21, the witness added, he suffered from lesions on his ankles and arms, resulting from his being chained, and kept “scars that remain visible to this day,” including a hand he was never able to use normally since.

His Cambodian co-lawyer, Ty Srinna, asked him if he had returned to S-21 since the time of the facts. He had, a short time ago. “Are there familiar hints reminding you that you were detained in that place?” “I saw things that I knew of, even though my memory is not good.” A twenty-minute recess was announced to give Ly Hor the time to examine a document similar to a confession and bearing his thumbprint at the bottom, so that he may recall “whether it happened in Takmau, in S-21 or at DC-Cam,” as his lawyer asked him. The witness confided he did not remember the handwriting, but recognised his thumbprint.

After twenty minutes, Ly Hor had still not recovered his memory. His testimony may have been recorded in Takmau or in S-21 – he could not swear of anything.

Duch: mistake on the witness
The accused was called to comment on Ly Hor’s testimony. Duch, whose meticulous precision is bound to become proverbial, then presented an implacable logic, supported by interrogation documents. Regarding the two confessions obtained at office 15, he recognised among others handwritten notes by “Brother Mam Nay,” chief interrogator in S-21. “After examining all the S-21 documents, I would like to tell the president – and I wish to express here my deep compassion for what Mr. Ly Hor suffered […] – I believe that he was tortured indeed. But I would like to say that, according to the documents, comrade Hea Hor has passed away. These documents prove that he is already dead. If you take the list prepared by the co-Prosecutors of the people smashed in S-21, on page 59, you can find Hea Hor’s name and note that he is dead.” Starting a comparison of documents to prove that the handwritings were “50% different to Ly Hor’s,” he inferred: “So, I can say that comrade Hea Hor and Mr. Ly Hor are not the same person,” whilst also noting a difference in the birth date of both individuals. He hammered his point: “Ly Hor did not tell the Court with honesty how this document ended up in his civil party application. Why was he unable to provide a clear testimony to the Court regarding this document? That is another observation I would like to make. […] In conclusion, Hea Hor is dead and I do not want to prejudice his soul in any way.”

Waiting for clarifications
Kar Savuth: “Where were you on November 10th 1975?” “I was at sector 25,” the witness answered. The date actually corresponded to the arrest of a Hea Hor and his transfer to S-21. Then, his international colleague asked him if he recalled the circumstances in which he decided to intervene in Duch’s trial. She remarked that DC-Cam had communicated his application to join as a civil party to the Victims Unit on September 1st 2008. “This seems to indicate that, at least since that date, you have been in contact with DC-Cam. Can you confirm this?” “I did not go to the DC-Cam office.”

After the explanations given by the accused, judge Lavergne deemed “the Chamber [required] some clarification” and asked the co-Prosecutors to shed some light. But Robert Petit invited him instead to ask his colleague for the civil party, “more capable of answering your question.” All eyes turned to the civil party lawyers. “That the person featured on the list [of individuals smashed in S-21] is actually our civil party, I cannot confirm at the moment. I have to show the list to the witness first,” Alain Werner eluded.

Ly Hor’s testimony ended and, unlike the three previous survivors called to testify, he was thanked by the president. One was expecting that the Chamber give instructions so that another trial day not be wasted with a witness who has nothing to add to the debates and who – the accused successfully instilled doubt – may not even have known the walls of S-21. That did not happen.