Nuon Chea, the Khmer Rouge’s “Brother Number Two” died in hospital on August 4 at the age of 93.
He had been being found guilty by the Extraordinary Chambers in the Courts of Cambodia (ECCC) of genocide and crimes against humanity and handed a life sentence.
He was imprisoned at the ECCC detention facility.
He had faced trial with Khieu Samphan, the Khmer Rouge’s head of state, who was also found guilty and given life in prison.
It took more than 10 years for the court to bring its final judgement, which remains unfinished due to Chea’s death.
After his passing, there remains debate as to whether the court will ever be able to serve the full truth.
At first Chea spoke much about what he believed were the catalysts for his crimes.
However, during live testimony, he challenged the authenticity of the scanned documents used to charge him, which he said were not original.
They were copies, or the copies of copies, he said. He said he would not answer any questions unless the original documents were shown.
The Trial Chamber ruled he could do so as this was within his rights.
Additionally, he felt the court had treated his legal team differently to the co-prosecutors during document presentation and cross-examination.
These two issues were the main reasons for him to use his right to remain silent.
Unlike the court, the public felt Chea was trying to escape the truth and deny justice for his victims.
This notion is now even more ingrained after his death.
Having worked for more than 10 years with his defence team, I would say Chea did try to present his truth as he saw it – a truth limited by the proceedings of the court.
If one had closely followed the trials, one would understand that events outside their scope were not allowed to be discussed.
As he said during live testimony on November 22, 2011: “Only the body of the crocodile was mentioned and not the head and tail, which are very important to its daily activities. In other words, the root causes and consequences of the events that occurred before 1975 and after 1979 are not to be discussed.”
After departing a short while from the 739-page closing order, the court separated the full order into Case 002/01 and Case 002/02 due to its resources and the age of the accused.
Had this severance not been made, perhaps there would never have been any final judgements made against Chea.
Case 002/01 was mostly about forced evacuations, and Chea gave lengthy presentations as to the reasons behind them.
Once the trial concluded, Chea, like the other parties, submitted his version of events through his lawyers in a closing brief.
The Trial Chamber judges then released a 702-page judgement announcing the truth according to them.
However, Chea felt some of it was inaccurate and appealed to the ECCC’s Supreme Court Chamber.
Parts of the convictions were quashed but the life sentence remained.
Case 002/02 was larger as it inc-luded more crime sites and factual allegations.
Chea again submitted the truth as he saw it in a 550-page closing brief.
The Trial Chamber issued another judgement – at 2,259 pages one of the longest of any international criminal tribunal – which almost entirely disagreed with Chea’s version.
He was again sentenced to life imprisonment.
‘No one to talk’
Chea once told me that Slobodan Praljak, facing trial at the International Criminal Tribunal for the former Yugoslavia for war crimes in Bosnia, was stupid to kill himself with cyanide in 2017 to oppose the court’s ruling.
He said such an act was cowardly.
He said that he would struggle until his last breath to explain to the people what had happened.
Chea filed a notice of appeal on the grounds he wanted to challenge the Trial Chamber’s truth.
Once he learned he was dying, he requested the Supreme Court Chamber allow his lawyers and family members to continue to file his appeal brief so his truth could be considered and made known to the public.
It was very unfortunate that the Supreme Court Chamber terminated the proceedings against him as there will now not be his appeal brief, a last chance to show the public his truth.
As he said on the value of history not long before his death: “Inheritance is a treasure and is very important. Please save the writings little by little so we can help each other. I will help with the reading and correcting. It is not about correcting the words but the thoughts, and to see if I have missed anything.
“So please all, talk to me if you have anything. I often think that if I die, all these accounts will also buried because there will be no one to talk.”
He once told me there was no way he could successfully fight against his convictions.
He responded to the judgement that imposed a life sentence with: “That is fine. I had prepared for this in advance. I have no regrets at all.
“As I told you, I do not care about my personal story, but I care about overall justice for the people, which is important for the nation.
“But the court will affect the nation because it is not representing national justice. Justice and injustice are in conflict. I am struggling not only for my justice but for justice in general because it is universal. There is no justice in the world. Reality is existence – it is a dharma [Buddhist cosmic law] that will never die.
“Therefore, I would say I am a patriot and I was right to struggle for the nation.
“I don’t deny the victims. I only talk about the Communist Party of Kampuchea’s guidelines, which tried to help the poor to have enough to eat and proper clothing, and to escape from their oppressors.
“I would share moral condolences with the victims, but I would not apologise as I was not wrong.”
The court may reveal a limited truth, one that can be found in the major documents, especially the closing briefs and judgements.
But the truth outside the scope of the trial remains sealed.
Furthermore, the truth as perceived by the victims may be different from the truth found at a court of law, because a court must try to dispense justice and truth while respecting the right to a fair trial that every accused should have.
Prum Phalla was a former senior evidence analyst for Nuon Chea’s defence team. He worked for the Documentation Centre of Cambodia (DC-Cam) from 2003 to 2007, later joining the Extraordinary Chambers in the Courts of Cambodia as part of Chea’s defence from 2007 to 2019. He holds a Master’s degree in Peace Studies from the UK’s Coventry University.