AFTER HEARTBREAKING TESTIMONY FROM A CHILD SURVIVOR OF S-21, DUCH DENIES HE WAS A PRISONER THERE

July 2, 2009

By Laura MacDonald, Member of the New York Bar and Consultant to the Center
for International Human Rights, Northwestern University School of Law

Norng Chan Phal at S-21 (Toul Sleng prison) on January 10, 1979 - Photo by a
Vietnamese military photographer
Courtesy of Documentation Center of Cambodia

Today, the Trial Chamber heard testimony from 39 year old Norng Chan Phal,
the fourth Tuol Sleng prison (S-21) survivor to testify in the trial of
prison chief Kaing Guek Eav (alias Duch). The Chamber had scheduled two
witnesses for today anticipating Chan Phal’s testimony would be brief since
he was so young during his time at S-21. However, evidentiary matters and an
unexpected denial from Duch complicated his testimony leaving no time for
another witness to be called. While a common response from Chan Phal was “I
do not remember because I was too young,” he also provided a great deal of
interesting testimony.

Earlier this year, Chan Phal missed the filing deadline to become a civil
party. When he finally came forward, civil party lawyers requested that the
deadline be extended to allow his application, but the request was denied.
Therefore, today he appeared only as a fact witness and will not take part
in any reparations that the Chamber may award with its final verdict.

Contested Evidence Delays Witness Testimony

At the outset of today’s proceedings, the prosecution announced two
requests. First, the prosecution requested that the Chamber take notice of a
motion it had filed just before 9 a.m. this morning. The motion sought to
add to the case file an interview of Chan Phal taken by the Documentation
Center of Cambodia, a Phnom Penh-based NGO. The prosecution further
requested that parties be allowed to refer to the document during the day’s
proceedings. While the prosecution had possession of this interview since
February 2009, it was apparently overlooked after Chan Phal failed to become
a civil party. All documents attached to approved civil party applications
are automatically included in the case file.

Second, the prosecution requested that the Chamber play two videos provided
by the Vietnamese government that the prosecution alleges were taken at S-21
immediately after Duch fled in January 1979. As the defense contests the
authenticity of these videos, the Chamber has not yet determined if the
footage will be allowed as evidence and has made clear at least three
times – and as recently as yesterday – that it is not ready to decide the
matter. The prosecution asked that the witness, who allegedly appears in the
videos, be allowed to view the footage to comment on its authenticity given
the footage is relevant to “every aspect of this case” providing evidence of
conditions, killings, and torture equipment.

After a great deal of clarifying questions and objections from the defense
on both issues, the Chamber recessed for 45 minutes before denying both
requests. Regarding the interview, the Chamber noted that while the
prosecution had been in possession of the document since February it
neglected to file until this morning. As a result, the defense was not given
adequate time to review the interview and prepare. Regarding the video
clips, the Chamber maintained its position and said it would decide whether
to show the footage at a later date.

Norng Chan Phal’s Story

Chan Phal’s father was a Communist Party of Kampuchea (CPK) cadre stationed
at workshop which provided timber for building railroads. Sometime in 1978,
Chan Phal’s family learned his father was sent to Phnom Penh. A few months
later, two jeeps showed up at the farming cooperative where they were living
and claimed they were taking Chan Phal, his mother, and his brother to Phnom
Penh to join him. After spending a few days at a train station, they were
brought to S-21 along with two women and three children.

Upon arrival at S-21, eight year old Chan Phal watched guards beat his ill
mother. She was threatened and pushed around. When she collapsed, she was
pulled up by her hair and then slapped, kicked, and photographed. Chan Phal
said his younger brother, only four at the time, was too young to understand
what was going on so he played on the floor, oblivious to his mother’s
beating. Chan Phal, on the other hand, remembers the beating vividly: “I was
terrified.”

The three were taken to a large cell along with the other women and children
who arrived with them. One of the children was around three years old,
another was younger than three, and the last was still breast-feeding. After
spending the night on the floor without food, Chan Phal, his brother, and
the other children were separated from their mothers. They were taken to the
workshop area behind S-21 where carpenters, artists, and blacksmiths worked
alongside a pig pen. The children were watched by a scared elderly woman.
During his few weeks at S-21, Chan Phal does not recall having a bath. The
children slept on the wooden floor and ate gruel, except for the baby who
eventually died of starvation because it was too young to eat gruel. Chan
Phal recalled ants crawling in and out of the dead baby’s ears and mouth.

From the workshop area, Chan Phal could see the window of the cell where he
had been detained with his mother. One time, he saw her standing at the
window with her hands on the bars. That was the last time he saw her. He
heard screams often and while he could not tell where they were coming from,
he always looked up to that window.

Chan Phal described the chaos that ensued in early January 1979 when shells
started falling on S-21 and people started evacuating. The elderly caretaker
tried to get him to leave S-21 with her, but he refused to leave without his
mother. He waited behind a stack of clothes near the building where he
thought his mother was still detained waiting for her to come out. At one
point, he started running through the corridors looking for her. Instead, he
saw what appeared to be a very recently deceased person chained to a bed
with flies swirling around. This frightened him, so he ran back to the
workshop and remained there with the other children. The children braced
themselves as the area was bombarded. Chan Phal drank some rainwater from a
broken jug and ate some leftover gruel that had spoiled. Perhaps a day
later, two Vietnamese soldiers found the children there and cooked them a
meal of duck and rice before departing. Perhaps a day after that, a large
group of Vietnamese and Cambodian soldiers arrived at S-21. They asked the
children a lot of questions about their parents and where they were from.
Noting how ill and hungry the children were, the soldiers took them to a
nearby hospital where all but Chan Phal were put on IVs. Chan Phal was
“horrified” to leave S-21 because he did not know how his mother would ever
find him. After a short period living with the soldiers, Chan Phal was
placed in an orphanage.

After leaving S-21, Chan Phal would visit the site, then a museum,
occasionally because he missed his mother. During one visit, a former
blacksmith from the S-21 workshop who was working as a gardener at the
museum recognized Chan Phal and told him to forget all his suffering at
S-21.

When asked what he wants out of this trial, Chan Phal replied, “I would like
justice for my parents. That’s all.” The biography of Chan Phal’s father was
recovered from S-21, but there is no evidence in the case file regarding his
mother. Throughout his testimony, Chan Phal rarely responded to a question
regarding his mother without breaking down in tears.

Duch Acknowledges Suffering, but Refutes the Location

The number of prisoners killed just before Duch fled S-21 in early January
1979 is a contested fact. Duch claims only four prisoners were killed that
day with many killed in the days leading up to the evacuation. There are
fourteen graves at the Tuol Sleng Genocide Museum for bodies allegedly found
there by the Vietnamese. Witness testimony has confirmed this number. Given
Chan Phal’s testimony regarding the corpse he saw chained to a bed after the
evacuation, one of the civil party lawyers requested that the President
allow Duch to comment. The President allowed Duch to comment and instructed
Duch not to spend time admitting responsibility, as he tends to do at
length, but rather to simply to make observations regarding the corpse.
Clearly, the President did not anticipate Duch’s response.

Duch said he acknowledged Chan Phal’s great suffering, but did not accept
that he was a prisoner at S-21. Duch explained that he accepted that Chan
Phal’s father was at S-21 given the biography shown during the proceedings.
However, Duch maintains that no children escaped from S-21 and all were
killed based on orders from Nuon Chea before the evacuation took place.
Therefore, Chan Phal was likely imprisoned at another CPK security office.
Since there are no photographs or documents regarding his mother, Duch did
not accept that she was imprisoned at S-21 either. He said, “Where did they
suffer? I am uncertain on this matter.” He then briefly responded regarding
the corpse, maintaining that only four were killed on his last day at S-21.

Everyone in the courtroom appeared flabbergasted. Judge Cartwright suggested
Duch consult with his lawyers if necessary. Judge Lavergne asked several
clarifying questions to make sure he heard Duch properly and then asked Duch
to repeat himself.

Despite the earlier ruling by the Chamber, during its questioning, the
prosecution sought to put a still image from the Vietnamese video footage up
on the screen so the witness could confirm his identity. This attempt was
denied. Seizing the opportunity to raise the issue of the video footage yet
again, the prosecution argued that if Duch truly asserts Chan Phal was never
at S-21, the Chamber should play the video today or at least invite him back
at a future date to comment. The civil parties implored the judges to show
the footage as well. Further, the civil parties argued that on March 30 the
defense had acknowledged Chan Phal as a survivor when it challenged the
relevancy of his testimony, arguing that since Duch did not contest there
were children at S-21 the testimony was unnecessary.

In a surprising compromise, Judge Cartwright then put up a still image from
the Vietnamese video showing two small naked boys in front of a group of
soldiers. One of the civil party lawyers smiled openly. Chan Phal confirmed
it was him and his little brother on the day they left S-21. He said at the
time, he did not know they were being filmed.

Another S-21 survivor will take the stand on Monday. For their protection,
witnesses’ names are not being announced in advance.