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Logo of Phnom Penh Post newspaper Phnom Penh Post - Guilty as charged

Former Khmer Rouge head of state Khieu Samphan (left) and one-time Khmer Rouge Brother No 2 Nuon Chea (right) in the ECCC courtroom in Phnom Penh
Former Khmer Rouge head of state Khieu Samphan (left) and one-time Khmer Rouge Brother No 2 Nuon Chea (right) in the ECCC courtroom in Phnom Penh yesterday. ECCC

Guilty as charged

After almost three years of hearings, the Khmer Rouge tribunal yesterday found senior Democratic Kampuchea leaders Nuon Chea and Khieu Samphan guilty of crimes against humanity, sentencing them both to life imprisonment.

The crimes – encompassing charges of murder, extermination, political persecution, forced transfers and “other inhumane acts” – were committed in the course of two rounds of forced population movements, as well as during the execution of hundreds of officials from the toppled Lon Nol regime at a site called Tuol Po Chrey.

Of the evacuation of Phnom Penh – the first phase of forced transfers – the trial chamber found that two million people were forced out of the city “under terrifying and violent circumstances”, and “rejected any suggestion that it was necessary or proportionate in the circumstances to empty virtually the entire city”.

On the second phase of forced transfers, which began months later, the chamber found that the conditions of the transfers were deplorable and that those marked for transfer “were frightened and lived in a state of terror, unwilling or unable to disobey or question orders”.

Given the “catastrophic humanitarian situation” that many of those transferred were facing, even the decisions of those who agreed to be transferred “cannot be seen as a legitimate exercise of choice”.

Khmer Rouge duo get life

Tuol Po Chrey, the judges found, was the continuation of a policy to eradicate the remnants of the Lon Nol regime. Its victims “were no longer taking active part in hostilities, were targeted in accordance with [Communist Party of Kampuchea] policy and were later either buried at Tuol Po Chrey or bulldozed into a pond”.

Both of the accused were found to have been responsible for the crimes through their participation in a joint criminal enterprise (JCE), the common goal of which was to implement a “rapid socialist revolution through a ‘great leap forward’ by any means necessary”, including criminal measures.

Khmer Rouge survivor Sum Rethy (left) cries as he embraces Tuol Sleng prison survivor Chum Mey at the ECCC
Khmer Rouge survivor Sum Rethy (left) cries as he embraces Tuol Sleng prison survivor Chum Mey at the ECCC. Vireak Mai

Chea was additionally found to have “superior responsibility” for the events of Tuol Po Chrey by virtue of his position as the acting superior of the cadres who carried out the killings there. Samphan, whom the court acknowledged held little real power, was not.

Speaking after the announcement of the convictions, the prosecution applauded the verdict, with national lead co-prosecutor Chea Leang calling life imprisonment “the only appropriate sentences the chamber could have handed down”.

“It will not give back the lives of those executed or those who died of exhaustion, or lack of food, or water, or medical assistance. It won’t rebuild families,” she said. “Yet I believe it will give some justice, reinstate some public respect to those victims, dead and alive, that has been denied to them for so long.”

The defence teams, however, were not so sanguine. Chea defender Victor Koppe said that his client, despite being “disappointed” with the verdict, “was not surprised at all”.

“He didn’t have any faith and confidence in this trial chamber, and he got confirmed in that suspicion,” Koppe said.

In addition to appealing, Koppe said that his team’s “highest priority” would be filing a motion calling for the recusal of the current trial chamber judges, saying that yesterday’s ruling showed they had “lost” their impartiality and independence.

“Already, in the way the summary was formulated, there seems to be a very strong bias against our client,” he said.

The Khieu Samphan defence also promised to appeal, maintaining that the court had failed in its duty to link their client – who has long painted himself as a mere figurehead – to the crimes
in question.

“In this case, there is no concrete evidence pointing to Khieu Samphan’s participation in decision-making in the evacuation of Phnom Penh, the second phase of that evacuation, and the events of Tuol Po Chrey,” defender Arthur Vercken said.

“We know that the tribunal has been dogged by scandals; it has made decisions that are desperate, that are aimed at giving the tribunal” an appearance of credibility, he added.

Fellow defender Kong Sam Onn noted with disapproval that Samphan had been handed the same sentence as Chea, despite not having “superior responsibility”.

Responding to questions regarding the sentencing, prosecutor Leang said that the gravity of the crimes informed the punishment, a defence of the decision echoed by international co-prosecutor Nicholas Koumjian.

“This is a fact in many war crimes cases. You can have someone who personally murdered 100 people, but his commander above him killed thousands,” he said. “Does that mean the one who murdered 100 gets a lighter sentence?”

The verdict, however, was almost universally lauded by victims.

Sum Rethy, 60, a former prisoner of the Khmer Rouge in Siem Reap province, was almost overwhelmed by the case’s verdict.

“I really appreciate the judgement,” he said. “I was jailed in a Khmer Rouge prison for two years, so it was a really difficult life back then. I’m crying now, not because I regret anything, but [because] I am so excited. I lost my father and three of my younger brothers.”

Tol Tes, 80, an ethnic Cham resident of Kampong Thom, said that he, too, had lost many siblings to the Khmer Rouge, but that “today’s verdict will calm my feelings of suffering”.

For 58-year-old Suon Vanthan, however, life in prison simply isn’t enough – Samphan and Chea’s punishment should continue into the next life as well, he said. Vanthan, who said he narrowly escaped execution in Prey Veng province, said that the crimes were all the worse “because they [were] educated, but led the country into hell like that”.

The 3,869 victims formally recognised by the court as civil parties saw a major victory yesterday in the form of the court’s recognition of 11 reparations projects, which included a National Day of Remembrance, a testimonial therapy project and the construction of a memorial in Phnom Penh – along with eight others.

Two projects were not recognised due largely to the fact that they had not secured sufficient funding.

“We commend the fact that the court has recognised the sufferings inflicted on the people by the Democratic Kampuchea regime in a broad sense,” said civil party international lead co-lawyer Marie Guiraud, adding that the team would explore ways of reviving the two unrecognised projects.

Statements in support of the verdict poured in yesterday from the US and German embassies, the court’s Group of Friends (which represents its major donors), local rights consortium the Cambodian Human Rights Action Committee, the International Federation for Human Rights, the United Nations and Deputy Prime Minister Sok An.

Longtime Khmer Rouge tribunal monitor Heather Ryan of the Open Society Justice Initiative said yesterday was “a very important day for the court and for Cambodia”.

“I was pleased with the verdict from what I heard and what I saw in the summary,” she said. “There were no surprises there.”

Given that Chea and Samphan are slated to begin, in the coming weeks, another sub-trial exploring allegations of genocide and forced marriage – among several others – yesterday’s decision that the two were indeed part of a joint criminal enterprise could have an impact on the upcoming case, Ryan added.

“It may not be binding in the second case, but the prosecution can put the same facts in again in the second case, and argue that it applies equally, and you can say that the chances the court would buy that a second time are very high,” she said.

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