Final Guilty Verdict Validates $260M Tribunal

As Anta Guisse, a defense lawyer for Khieu Samphan, was exiting the courtroom at the Khmer Rouge tribunal on Wednesday, she saw something that struck her as being symbolic of the court’s fundamental flaw.

—News Analysis—

The tribunal’s Supreme Court Chamber had just upheld her client’s life sentence for crimes against humanity, and Ms. Guisse watched Trial Chamber Judge Jean-Marc Lavergne, among those who handed down the initial conviction, lay “French style” kisses on the cheeks of two Supreme Court judges.

Nuon Chea, left, and Khieu Samphan await the announcement of their appeal verdict at the Khmer Rouge tribunal in Phnom Penh on Wednesday. (ECCC)
Nuon Chea, left, and Khieu Samphan await the announcement of their appeal verdict at the Khmer Rouge tribunal in Phnom Penh on Wednesday. (ECCC)

The tribunal, lawyers for Khieu Samphan and Nuon Chea have long argued, has always been an exercise in reaching a guilty verdict rather than offering a fair trial for Khmer Rouge leaders.

“The best illustration is the fact that when I was walking from the Courtroom on Thursday I saw Judge Lavergne giving a warm accolade to two of his international counterparts of the Supreme Court Chamber,” Ms. Guisse said in an email.

“In terms of what it says about the Court, that sums it all up.”

Although in the minds of many there was no doubt that the guilty verdict and accompanying life sentence would be upheld, the Supreme Court proved to be more than a rubber stamp on the Trial Chamber’s decision, overturning a number of convictions and dismissing some of the legal rationale put forward.

Notably, the Supreme Court struck down the conviction for extermination during the forced evacuation of Phnom Penh in 1975, arguing that there was a lack of proof of intent, and did the same with a conviction over the killing of Lon Nol soldiers at the Tuol Po Chrey execution site, saying that regime policy was not necessarily responsible for the murders.

Despite the reversals, Ms. Guisse said she still felt judges had done their “best to cover the errors” of the Trial Chamber, taking particular exception with its decision to uphold the application of the joint criminal enterprise legal doctrine against Khieu Samphan, who has been portrayed as being a nominal head of state removed from much of the regime’s decision-making.

“In a nutshell, despite the squashing of some conclusions of the Trial Chamber—which is good for the image of the Court—the message I heard from the Supreme Court Chamber to the Trial Chamber was: ‘We did our best to save the day this time, try to do better in the future, but in any case, we have your back,’” she said.

By delivering a decision critical of some aspects of the initial decision, the Supreme Court gave legitimacy to the outcome, a final guilty verdict against Khmer Rouge leaders, a first in the four decades since the regime took power and began a bloody rule that left some 1.7 million dead from starvation, sickness, torture and murder.

“This was clearly not a rubber stamp. The Supreme Court Chamber engaged seriously with the legal reasoning and evidence underlying the Trial Chamber’s judgment,” said John Ciorciari, an American scholar who has written extensively about the tribunal.

“Its willingness to reverse some convictions shows a commitment to the principle that each crime must be proven beyond a reasonable doubt. In that sense, the final judgement is not just a win for the prosecution, but also for defense rights,” he said.

Looking forward, Mr. Ciorciari said he believed the Trial Chamber would “take note of the standards applied” as it continues the second phase of Case 002 against Khieu Samphan, the Khmer Rouge head of state, and Nuon Chea, the regime’s second-in-command after Pol Pot.

Shannon Torrens, a lawyer who recently contributed to the book “The Extraordinary Chambers in the Courts of Cambodia: Assessing Their Contribution to International Criminal Law,” noted that by upholding the sentencing, the Supreme Court helped justify the high price of the tribunal, which has cost about $260 million so far.

“Most interesting to me in the recent 002/01 appeal verdict is that despite reversing some of the Trial Chamber’s findings and citing errors contained in the trial judgment, the Trial Chamber’s life sentences for Nuon Chea and Khieu Samphan were upheld,” Ms. Torrens said.

“This highlights the importance of life sentences at the court as an unacknowledged sign that the process has ‘worked,’ which justifies the time and financial investment of the international community and Cambodia.”

Ms. Torrens compared it to the case of Kaing Guek Eav, the S-21 prison chief better known as Duch, who had a 35-year prison sentence overturned by the Supreme Court Chamber in 2012 in Case 001 after a national and international outcry.

“On appeal, the Supreme Court Chamber sentenced Duch to life, which was better received. I think this raises questions of political interference at the court and whether judges take into consideration public pressure for conviction and life sentences in their deliberation of cases,” she said.

Victor Koppe, a defense lawyer for Nuon Chea, admitted that while the appeal verdict had given “some legitimacy” to the court, he was still convinced that the outcome was inevitable.

“In some ways, it ultimately is irrelevant and a rubber stamp,” he said.

“That is because it makes it clear that although there might be some wiggle room on technical issues, at the end of the day, this tribunal’s real mandate is not to find the truth, but to reach guilty verdicts and hand down life sentences against Nuon Chea and Khieu Samphan, no matter what.”

But Marie Guiraud, a lawyer for the tribunal’s civil parties—victims who participate directly in the trial proceedings—said she believed the appeal verdict reinforced the court’s “credibility and legitimacy.”

Despite the reversal of some decisions, the dozens of victims she met with after the verdict were relieved to have closure on the historic case, she added.

“Despite the wait, civil parties understand the importance of the right of the Defense to appeal,” she said in an email.

“We met with 100 civil parties on Thursday after the verdict and they expressed relief to see a final verdict in their lifetime, affirming the conviction and the life sentence of both Nuon Chea and Khieu Samphan for crimes against humanity.”

However, Pen Soeun, a 61-year-old civil party who was a victim of forced labor and a forced marriage under the regime, said that while the verdict may have satisfied those working at the tribunal, it had not offered satisfactory answers to his most pressing question: why so many lives were lost in the three years, eight months and 20 days that the Khmer Rouge held power.

“The life imprisonment sentence for both of them does not give us justice because the process taken so far at the Khmer Rouge tribunal has just given benefits for this institution, not the civil parties and other survivors,” he said.

“Do we know what the real motive was for the existence of the revolution of Khmer Rouge and why there was mass killing?” he asked.

“It has not yet been exposed from the mouths of the two accused.”

(Additional reporting by Kuch Naren)

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