Evidence held by China, the US and Vietnam could broaden the Khmer Rouge tribunal’s understanding of Democratic Kampuchea and potentially show crimes ascribed to the regime were the result of circumstances beyond its control, according to lawyers for Brother No 2 Nuon Chea.
In a series of requests for investigation filed since August, Nuon Chea’s lawyers asked the court to request that the governments of the three countries disclose all information about spy networks, aerial bombardments, intelligence reports on the Khmer Rouge power structure and the S-21 detention center. They also ask for statements to be taken from three former US national security advisers, including Henry Kissinger.
According to recently obtained information, the defense lawyers also asked the court’s co-investigating judges to establish their own population figures for Cambodia in April 1975, when the Khmer Rouge regime took power, and January 1979, when it was overthrown.
The defense says this could help refute or verify contradictory assertions that Cambodia’s population had either grown or was decimated by the Maoist regime.
Co-Investigating Judges Marcel Lemonde and You Bunleng on Monday said they were too busy to comment while representatives of the three countries named by the defense lawyers gave varying answers when asked about the potential for cooperation with the Khmer Rouge tribunal.
According to its procedural rules, the tribunal can ask foreign governments to provide information and the court can seek help from the Cambodian government or the UN secretary-general if foreign authorities fail to cooperate.
Unlike the practice in the common law legal systems, the inquisitive form of justice employed in Cambodian courts prevents defendants from independently collecting evidence.
Nuon Chea’s three lawyers, Cambodian Son Arun and Dutchmen Michiel Pestman and Victor Koppe, have therefore requested that Judges Lemonde and You Bunleng undertake these investigations on Nuon Chea’s behalf.
Ngo Thi Hoa, deputy head of mission at the Vietnamese Embassy, said Monday that she believed her government was cooperating with requests from the tribunal, though she was unfamiliar with the specific defense request.
“I understand that the court requested documents,” she said. “I understand that if the Vietnamese government has any information, they will” provide it, she said.
The US Embassy declined to comment, while Qian Hai, third secretary at the Chinese Embassy, said he was unfamiliar with the request for Chinese archival records.
“I think the ECCC is an internal court of Cambodia. I think the Cambodian government will follow the related laws,” he said.
Qian Hai added that China bore no criminal liability for alleged Khmer Rouge atrocities.
“I think we never did anything related to the crimes,” he said.
Nuon Chea’s defense on Aug 18 said China had massively supported the Khmer Rouge and may have known that economic and military aid, as well as technical and diplomatic support, was fueling the alleged commission of crimes by the regime.
Chinese officials may have had direct influence on Khmer Rouge policy and Beijing may possess information about the regime’s power structure that could help exonerate Nuon Chea, according to his defense.
Also in August, the defense asked the court to investigate the extent to which Vietnam maintained a spy network within Cambodia—which Khmer Rouge officials said they were determined to eradicate. They also asked the court to request from Vietnam any information they have about S-21, which was discovered by Vietnamese authorities in 1979, and about the military conflict with Cambodia.
War crimes charges against four of the court’s detainees, including Nuon Chea, hinge on a finding that Cambodia and Vietnam were engaged in low-level conflict during most of the existence of Democratic Kampuchea.
In a September request, Nuon Chea’s defense said US policy in Southeast Asia may have helped create the conditions for the rise of the Khmer Rouge and that the US may have maintained some intelligence assets in Cambodia after the fall of the Khmer Republic in 1975.
The defense, therefore, asked for investigation of the presence of US, Soviet and Vietnamese spy networks in Cambodia, and an accounting of the death toll from the covert US bombing campaign of 1969 to 1973. They also asked for investigators to take statements from former US National Security Advisers Kissinger, Brent Scowcroft and Zbigniew Brzezinski regarding US involvement and awareness of the situation in Cambodia.
Former Khmer Rouge officials and their sympathizers have long said Democratic Kampuchea has been blamed for suffering it did not directly cause and the Nuon Chea investigatory requests evoke the near certainty that defendants will argue a revisionist version of history or will impugn the actions of foreign agents.
“One could expect lawyers for the defense to raise this problem,” said historian Henri Locard, adding that he thought that Vietnam and the US bore no direct responsibility for the acts of the Khmer Rouge but that China had been closely implicated.
However, Khmer Rouge arguments about foreign treachery can in no way shield the accused from their responsibilities, Locard said.
“This is their propaganda. It has no basis at all,” he said.
(Additional reporting by Prak Chan Thul)
