The defense team for elderly war crimes defendant Nuon Chea has called for the charge of genocide to be included in his trial, arguing that a draft genocide denial law proposed by Prime Minister Hun Sen last week perpetuates a misleading belief that the crime was committed in Cambodia, even though a judgment for such a crime at the Khmer Rouge tribunal has yet to be reached.
In a filing made to the trial chamber on Thursday—just three days after Mr. Hun Sen called on lawmakers to pass a law making it illegal to deny crimes carried out during the Pol Pot era—Nuon Chea’s defense says it wants to argue in court that their 86-year-old client not only did not commit genocide, but that the belief that genocide took place in Cambodia is “simply false.”
“Hun Sen’s call for a law to make illegal any denial of a supposed Khmer Rouge ‘genocide’ adds concrete urgency to the defense’s call for an adjudication of the genocide charges at this Tribunal,” the filing states.
“As the Defense argued in its Appeal, the widespread belief that the Khmer Rouge committed genocide is simply false. Hun Sen now proposes enshrining that falsehood as an irrebuttable presumption in Cambodian law,” it says.
“Hun Sen’s call for a law criminalizing ‘genocide’ denial in Cambodia is only the latest episode in a decades-long effort on the part of the current government and its predecessors to place the albatross of genocide around the neck of Nuon Chea and other leaders of the Communist Party of Kampuchea,” the filing adds.
The law on the Denial of Genocide Committed in the Period of Democratic Kampuchea was hastily drafted Friday, four days after Mr. Hun Sen called for it in his response to comments made by opposition party leader Kem Sokha, who recently appeared to say that atrocities committed at the Khmer Rouge regime’s Tuol Sleng prison in Phnom Penh were fabricated by the Vietnamese.
The law is to be debated on Friday and if passed, could see people imprisoned for up to two years for denying that genocide took place in Cambodia.
Though the crimes allegedly committed by Nuon Chea include crimes against humanity, genocide and grave breaches of the 1949 Geneva Convention, the charge of genocide, however, outlines the extermination of Cham Muslims and Vietnamese—and not the Cambodian population at large.
The charge of genocide is also not currently being heard at the war crimes court due to a decision made in 2011 to break the case against Nuon Chea and his co-defendant, Khieu Samphan, down into smaller bite-sized “mini trials”—in an effort to speed up proceedings and verdicts at the court.
Nuon Chea’s lawyers, therefore, argued in the filing—which is part of an appeal against the decision to split the case into mini trials in the first place—that “any part of the Closing Order [indictment] which is not heard at trial ‘will survive as the final adjudication of Nuon Chea’s criminal responsibility for the events during Democratic Kampuchea.’
“The ongoing trial is therefore his ‘only opportunity to present his defense to the allegations in the Closing Order’ and for the Cambodian public to hear a far closer approximation of the historical truth.”
Whether or not the word “genocide” can be employed in the case of the Khmer Rouge regime is open for debate. Though the official definition of genocide refers to attempts to destroy in whole or in part any ethnic, religious, national or racial group, scholars say the word has never been properly translated into Khmer and its usage in the Cambodian context applies to crimes in general during the Pol Pot regime.
Panhavuth Long, a program officer for the Cambodian Justice Initiative organization, said the filing by the defense team could be a tactic to further delay proceedings in case “their client maybe dies before a verdict can be issued.”
But, he said, “I would agree that you cannot make a law on genocide when no one has been convicted of genocide.
“You cannot debate a genocide denial [law] without the final criminal judgment,” he said.
Independent political analyst Lao Mong Hay, who said Friday he did not understand the urgency with which the law had been drafted by the government, agreed that the National Assembly should wait until a verdict on the crime of genocide has been rendered at the Khmer Rouge tribunal before passing a law designed to persecute those accused of denying that genocide took place.
“I think with regard to this draft law, which includes genocide, I think we have to wait until the charge of genocide would have been decided,” he said, adding that Western countries such as Germany only drafted similar laws in the wake of the 1945 to 1946 Nuremberg Trials that convicted high-ranking Nazis of the crime.
“If that law is enacted, it would have an influence on proceedings on genocide that are going on,” he added. “That law would have preempted the decision or inference of the arguments against the charges.”
CPP lawmaker Chheang Vun, who helped draft the denial of genocide law, said the Khmer Rouge war crimes trial was merely to determine the size of the punishment that Nuon Chea and Khieu Samphan will receive, not to question that genocide took place.
“That accusation is so stupid. It is because genocide happened that led to the trial,” he said.
(Additional reporting by Phorn Bopha)