More than two years since they launched an appeal against their initial convictions, former Khmer Rouge leaders Nuon Chea and Khieu Samphan have been found guilty of crimes against humanity by the Khmer Rouge tribunal’s Supreme Court Chamber – a final decision in Case 002/01 that cannot be appealed.
The pair, who presided over mass executions and starvation under the brutal regime between 1975 and 1979, were convicted in 2014 and sentenced to life in prison. Both appealed the decision, but both the verdict and their life sentences were upheld.
However, the Supreme Court Chamber found the tribunal’s lower Trial Chamber made multiple mistakes and “erroneous” conclusions, and ultimately reversed certain counts of extermination and persecution that had been included in the initial judgement. They also convicted the pair on an additional count of murder for which they had previously not been found guilty.
In a decision sure to generate controversy given the government’s at-times contentious relationship with the court, the Supreme Court Chamber also found the Trial Chamber’s decision not to summons Heng Samrin – a former Khmer Rouge commander and the current president of Cambodia’s National Assembly – to be “erroneous”.
The charges of murder, extermination, political persecution and “other inhumane acts” stemmed from the forced evacuation of Phnom Penh and later forced disappearances and population movements from other areas of Cambodia, as well as the execution of hundreds of officials from the toppled Lon Nol regime at Tuol Po Chrey in Pursat.
In a televised interview posted to the court’s website prior to the decision, Anta Guisse, defence lawyer for Democratic Kampuchea’s former head of state Khieu Samphan, said she had appealed “errors of fact and errors of law”.
“They decided already that Khieu Samphan was guilty, and then they tried to arrange the evidence in order to make that conviction stand. And that’s a problem,” she said.
“Especially, for example, from Tuol Po Chrey, it was obvious that the way they dealt with the evidence, they had nothing to rely on.”
Former Brother Number Two, Nuon Chea, would find the verdict “irrelevant”, regardless of the outcome, according to his defence lawyer Victor Koppe.
“In essence, the trial judgement was extremely low quality,” he said in a similar interview prior to the appeal judgement being handed down.
“From an academic perspective and from a legal perspective, the judgement was a disaster.”
His team had compiled 223 grounds of appeal, and the Supreme Court Chamber’s previous decision not to summons the “most important witness”, Heng Samrin, saw Koppe storm out of the court room during proceedings last year.
The prosecution also appealed the Trial Chamber’s decision not to use the most extended form of the Joint Criminal Enterprise (JCE) legal theory, where people can be held responsible for crimes even if they were not an explicit part of their criminal plan, but were foreseeable under that plan.
The Supreme Court Chamber rejected their appeal, upholding the Trial Chamber’s determination that it was not a part of customary international law in 1975 when the crimes took place.