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Will death allow ‘Brother No 2’ to escape genocide conviction?

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Mourners visit Nuon Chea’s body in Prom Kiri Morakat pagoda at Pailin province on Monday. Hong Menea

Will death allow ‘Brother No 2’ to escape genocide conviction?

The defence team for the Khmer Rouge’s “Brother Number 2” has asked the Extraordinary Chambers in the Courts of Cambodia’s (ECCC) Supreme Court Chamber to rule on the appeal proceedings he had begun just days before his death.

Nuon Chea, considered the Khmer Rouge’s chief ideologist, died on Sunday at the age of 93.

Defence lawyer Doreen Chen said Chea had begun filing an appeal against his conviction in Case 002/02 last Thursday. The complete appeal arguments remain to be submitted.

“We believe that if the chamber decides to terminate the appeal proceedings now, Nuon Chea would be presumed innocent and the trial judgement vacated in relation to him,” she said.

In November last year, the ECCC, commonly known as the Khmer Rouge tribunal, convicted Chea of genocide, crimes against humanity and grave breaches of the 1949 Geneva Conventions in Case 002/02.

“According to the applicable law, however, the chamber could also, in the interests of justice, choose to continue the appeal proceedings concerning Nuon Chea and enter a final judgement on his guilt or innocence,” Chen said.

Chea, who was president of the Khmer Rouge’s state legislature and second only to Pol Pot, was found guilty of crimes against humanity and sentenced to life imprisonment in Case 002/01 in 2014. His appeal in that case was rejected in 2016

Chen said the legal defence team filed a request to the Supreme Court Chamber on Tuesday seeking clarification on how Chea’s death would impact the appeal proceedings.

ECCC spokesperson Net Pheaktra said on Wednesday that under Cambodian law, a criminal action is terminated on the death of the accused.

However, the relevant parties were working on the proceedings in Chea’s case after his death.

“We expect the Supreme Court Chamber to deliver that decision accordingly,” he said.

Chen said the defence team expected the chamber to make a decision urgently.

The death of Chea means Khieu Samphan is the last remaining top Khmer Rouge leader left in the dock.

Prime Minister Hun Sen has previously said that the ECCC should not go beyond its remit by bringing further cases before the tribunal.

Human Rights Watch (HRW) on Monday issued a statement accusing Hun Sen of obstructing further trials.

It urged governments around the world to push Prime Minister Hun Sen to ensure the prosecution of others who had tormented the Cambodian people during the Khmer Rouge genocide.

Phil Robertson, the deputy director of HRW’s Asia Division, told The Post on Wednesday that the Khmer Rouge tribunal had failed by focusing only on high-ranking figures.

“By prosecuting only a few Khmer Rouge leaders, and letting the rest go, the ECCC failed to sustain the drive for justice for victims of the Khmer Rouge that was really needed.

“Some observers will claim that the prosecutions [already] done were enough, but they are wrong because the top-most KR leaders were out of the sight and mind of most victims.

“There needed to also be accountability for the sort of Khmer Rouge leaders in Cases 003 and 004 who oversaw the killings at the provincial and district level where they were known to local people who were the victims.

“By failing to reach down to this level, the ECCC fell far short of what it should have accomplished.

“If the tribunal cannot bring any more suspects to trial, which means the ECCC’s justice efforts were truncated after Cases 001 and 002, it can be said clearly that the tribunal is primarily a failure,” Robertson said.

Ruling Cambodian People’s Party spokesperson Sok Eysan denied Hun Sen had never obstructed the proceedings of the Khmer Rouge tribunal.

“[Hun Sen] only demanded that the agreement Cambodia and the UN had signed together was followed,” he said.

He said full justice for the victims of the Khmer Rouge could only be achieved when all those responsible were brought to justice, including group and unit leaders, and “even the regime’s head chef”.

“But this is not possible. The agreement said only top leaders and those most responsible are to be brought to face trial,” Eysan said.

Asked whether Chea had revealed the truth before his death, Youk Chhang, the director of the Documentation Centre of Cambodia (DC-Cam), said: “Despite Nuon Chea switching the truth and playing with it, there are no secrets about him or what he did.

Chhang said work was underway after Chea’s death to allow survivors of the Khmer Rouge genocide and the general public access to the ECCC archives.

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