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Logo of Phnom Penh Post newspaper Phnom Penh Post - Judgement day for KR

A tourist reads about the Khmer Rouge next to a portrait of Khieu Samphan
A tourist reads about the Khmer Rouge next to a portrait of Khieu Samphan, former Khmer Rouge head of state, at the Tuol Sleng genocide museum in Phnom Penh yesterday. Eli Meixler

Judgement day for KR

The Khmer Rouge tribunal today will hand down its verdict on the responsibility borne by the senior-most surviving leaders of the regime – Nuon Chea and Khieu Samphan – for the massive crimes purportedly committed in its name.

The two are being tried for crimes against humanity allegedly committed during the evacuation of Phnom Penh after its fall in 1975 – as well as other subsequent movements of the population – and the politically motivated executions of officials believed to be loyal to the former regime that followed shortly thereafter.

The charges

While the Khmer Rouge tribunal’s Case 002 as a whole covers a range of crimes and crime sites, today’s verdict in Case 002/01 will solely judge charges of crimes against humanity falling under two main themes: forced transfers of population and the executions of officials from the toppled Lon Nol regime at a site known as Tuol Po Chrey.

Forced evacuation
On April 17, 1975, the Khmer Rouge inaugurated their ultra-Maoist regime by emptying Phnom Penh, a city that at the time had swelled to some two million inhabitants thanks to an influx of refugees driven out of the countryside by fighting there. Practically all were driven out immediately under threat of death, some hauling as many of their possessions as they could carry, others forced out of packed hospitals, trailing IV drips as they marched out of the city. Beginning just months later, and lasting for more than two years, a second round of forced transfers was implemented, allegedly targeting, at times, those affiliated with the Lon Nol regime, and the recent evacuees of Phnom Penh, whom the Khmer Rouge considered undesirable.

Tuol Po Chrey
Shortly after the fall of Phnom Penh, former Lon Nol soldiers and policemen – likely numbering in the hundreds, though the exact figure has been disputed – were rounded up at Pursat Provincial Hall. According to one witness, the soldiers were told that they would be re-educated and folded into the Khmer Rouge under the same rank that they held at the time. After eagerly climbing into a waiting column of trucks, however, they were allegedly taken to an execution site at Tuol Po Chrey and killed, eliminated due to fears that their presence and perceived anti-revolutionary stances would be a threat to the new regime.

Though the country’s thousands of mass graves speak undeniably to the existence of the regime’s wrongdoing, proving beyond a reasonable doubt the culpability of the two accused is another matter, and prognosticators yesterday split along largely predictable lines as to whether the delivery of a guilty verdict was all but guaranteed.

While a verdict of guilty could arguably be considered a measure of justice for the victims of the Khmer Rouge, those selfsame victims won’t likely consider it a surprise.

When asked if Cambodians overwhelmingly believed the two defendants are guilty, victim and civil party Heng Bun Net replied, “Yes, of course we do.”

“All Cambodians suffered from the regime,” he said. “For me, now I am orphan. My mother and father died under that regime, and also my brother was killed . . . They are evidence. And other Cambodians were victims, so they believe and are confident that they are guilty.”

Pen Soeun, a fellow civil party, agreed yesterday, saying a guilty verdict was practically inescapable given that “all the victims throughout the country have enough evidence”.

“Not only me, we [all] believe that they are guilty, because we had experience under this regime. We encountered all those scenes with our own eyes, so we believe they are guilty,” he said.

Longtime Khmer Rouge researcher Youk Chhang, director of the Documentation Center of Cambodia and himself a victim of the Khmer Rouge, said that to many victims, Chea and Samphan are as good as convicted already.

“In the minds of many survivors, having seen them in prison, knowing that they won’t be released, they are already convicted,” he said. “The assumption might not be a legal justification but a human instinct.”

Even acknowledging the difference between popular opinion and legal reasoning, Chhang continued, the evidence before the court was so overwhelming that a verdict of not guilty would require less-than-honest legal contortions.

“You talk about 3,000 mass graves, hundreds of prisons, the information showing how the regime was managed,” he said.

“Honesty is justice,” he added. “Twisting the justification legally [to arrive at an acquittal] at the expense of the victims, that is injustice.”

Other veteran court observers, however, were not so sure.

Long Panhavuth, a program officer with the Cambodian Justice Initiative, said yesterday that while he “believe[d] that people believe they will be convicted”, it would be “too early to say whether the judgement will meet expectations or not”.

Nuon Chea defender Victor Koppe also refused to rule out the possibility of an acquittal, particularly on the charges pertaining to Tuol Po Chrey. The charges relating to the evacuation of Phnom Penh would be more a matter of legal reasoning than fact given that the city was indisputably emptied, he continued, but even on those charges there was hope if the defence’s reasoning won out.

Nonetheless, the overwhelming public opinion and the body of historical writings focused on the regime’s purported wrongdoing raised their own challenges, Koppe said.

“That’s the main obstacle to the presumption of innocence, obviously, and that’s what makes the trial so difficult for both of the accused,” he said. “We have argued . . . that all the evidence gathered was just with one goal: to confirm the prenotion of guilt.”

However, even one of the people tasked with gathering that evidence, former prosecution investigator Craig Etcheson, said that a guilty verdict wasn’t set in stone.

“I think there’s no question that among the general public there’s a feeling that everybody believes they’re guilty,” Etcheson said. “But we operate on the assumption that inside the court you’re dealing with professionals who can go into some sort of willing suspension of disbelief and uphold that presumption of innocence through the legal process.

“I’m in a wait-and-see mode . . . I gathered the evidence, I think that the burden of proof has been met . . . [but] did [the bench] examine the case file as closely as I did? Did they come to the same conclusions I did?” he added.

“Anything can happen in Cambodia.”

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