Tribunal Lawyers Seek Acquittal, Blame Vietnam

Powerful Vietnamese-backed warlords thwarted efforts by the Khmer Rouge leadership to construct a “prosperous, independent state,” leading to the failure of the regime’s communist revolution, the defense team for second-in-command Nuon Chea argues in a brief prepared for the close of his more than two-year trial.

The 550-page confidential document obtained by The Cambodia Daily argues that far from being a monolithic, hierarchical machine, Democratic Kampuchea was infiltrated by “treasonous” Vietnamese collaborators who planned on fulfilling its neighbor’s long-held imperialist ambitions.

Noun Chea
An archival photograph of Nuon Chea. (DC-Cam)

As a result, Nuon Chea should be acquitted of crimes against humanity, including genocide, and freed, his lawyers claim.

Two Khmer Rouge researchers, however, strongly disputed the arguments made in the closing brief, which is expected to be made public this week, branding the efforts to have Pol Pot’s lieutenant absolved of responsibility both “desperate” and “pathetic.”

Historians say as many as 2 million people died of execution, starvation, disease and overwork during the Khmer Rouge rule of Cambodia in the 1970s.

From the outset, Vietnam’s collaborators tried to undermine the Democratic Kampuchea (DK) from within, the brief argues.

“They sought to thwart DK’s efforts to construct a prosperous, independent state through coups d’etat that would overthrow the [Communist Party of Kampuchea] and legitimate DK government and replace them with new leadership loyal to Vietnam instead,” it says.

At the helm of this plan was East Zone secretary Sao Phim, alongside his counterpart in the Northwest Zone, Ruos Nhim, and other Standing Committee members including Koy Thuon and Vorn Vet, it says.

An archival photograph of Nuon Chea and Vorn Vet. (DC-Cam)

In an attempt to prove the theory, Nuon Chea’s lawyers cite a 1979 speech by then-Chinese Defense Minister Geng Biao who listed three factions that he claimed emerged six months after the Khmer Rouge took power in April 1975.

“The first faction, composed of Cambodian workers and peasants and under the direct control of Pol Pot and Khieu Samphan, was the majority and the main force of the Liberation Army,” the minister wrote, the latter name in reference to the former DK head of state now on trial with Nuon Chea.

A second faction consisted of royal forces faithful to then-Prince Norodom Sihanouk—who had urged the peasantry to join the communists after he was ousted by General Lon

Nol—while a third “was the well equipped pro-Vietnam group consisting of quite a few members,” the minister wrote.

The book also cites renowned Vietnam expert Douglas Pike’s testimony to the U.S. Congress in 1978 in which he says that between the liberation of Phnom Penh in 1975 and early 1977 “the Vietnamese continued efforts to stage a coup d’etat in Kampuchea using a handful of traitorous forces which were Vietnamese agents,” which triggered a deadly “power struggle among Cambodian Communists.”

Plans for the internal rebellion—set in motion about a month after the communist forces had rolled into Phnom Penh—occurred during a clandestine meeting led by Sao Phim, the closing brief claims, based on an interview conducted by U.K. filmmaker Rob Lemkin and Cambodian reporter Thet Sambath with a man who claimed to have been in attendance.

Sao Phim “said that Pol Pot did not have proper behaviour as a revolutionist…since Pol Pot planned to betray so we had to strengthen military force to fight back with Pol Pot but he did not tell the exact date,” the brief states.



The brief then gives examples of what it claims are evidence of coup attempts, including multiple efforts to assassinate Pol Pot, before an effort to launch a “classic direct attack insurgency” on Phnom Penh in 1977 by the North Zone-affiliated “Centre Division 310” led by Sbauv Him, alias Oeun.

It cites in-court testimony from June 2015 of a former Division 310 commander named Sem Hoeurn.

“Let me clarify the rebellion plan. There was Ta So Phim in the East Zone and Ta Koy Thuon in the North Zone,” he said.

“They already prepared their forces in the front line and at the rear; the Army of the Centre was prepared for the front line—a plan to attack Phnom Penh; the Sector forces were to attack behind at the Sector level. This is what I know. That’s all.”

Oeun “was the commander of the division [and he] had a plan and disseminated it to the battalions so that soldiers in the battalions could rise up to overthrow and topple the Democratic Kampuchea,” he added.

The coup hoped to cut off the regime’s access to the outside world by taking control of Pochentong International Airport and Phnom Penh Radio, cripple the capital’s defensive capacity by targeting the Defense Ministry and finally directly targeting Pol Pot, the brief says.

“At that time, they were planning to attack the Pol Pot garrison, but they failed because Ta Oeun, who was in the same clique with Hun Sen, was arrested,” the brief notes, citing witness Khoem Samhuon, a Division 310 company commander, in an interview with the Documentation Center of Cambodia.

The plot was eventually foiled, it claims, and despite the regime being “justified in arresting, detaining, and indeed also executing the coup leaders,” it showed “considerable caution and restraint” in dealing with the alleged traitors.

Evidence of such coup attempts prove that the regime was riddled with Vietnamese-backed traitors that were going against the “good of the people,” the brief says.

“The evidence shows that Vietnam’s collaborators leading several Zones and an Autonomous Sector acted wholly independently of Nuon Chea and at diametrically opposed purposes to the CPK, its legitimate and lawful policies and the good of the people,” it says.

“They sought to violently overthrow the CPK and the legitimate DK government through dual-pronged attacks on Phnom Penh and nationwide—a plan that contemplated Vietnamese intervention if required.”

The eventual invasion of Cambodia in 1978 illustrated that “the Vietnamese threat was ultimately realized with Cambodia left in a state of effective occupation in the post-DK period and with Vietnamese influence still felt in a multitude of ways today,” it claims.


‘Not Nazi Germany’

These alleged internal rebellions and factionalism in the Communist Party of Kampuchea “undermines the proposition that Nuon Chea could possibly have exercised effective control over cadres” under the command of rebel autonomous leaders, the brief claims.

The party’s plan for the nation, the brief argues, was to carry out a benevolent socialist revolution.

“The CPK’s goals for DK were not unlawful. DK was not Nazi Germany as Judge [Claudia] Fenz apparently believes,” it states.

“The CPK was a communist movement which sought not to harm ordinary Cambodians, but to eliminate the injustices which affected a broad cross-section of the Cambodian population, especially the rural poor.”

The brief also denies that there was a genocidal plan against ethnic Vietnamese, claiming that members of the group were arrested and detained exclusively “on the basis of their suspected engagement in unlawful activities such as treason and espionage.”


‘Pathetic’ argument

Elizabeth Becker, author of “When The War Was Over,” who testified at the tribunal as an expert witness in 2015, describes as “desperate” those arguments by defense lawyers that alleged internal strife within the Pol Pot regime absolved their client of crimes.

“The evidence suggests that the Vietnamese decision to invade Cambodia was triggered by the Khmer Rouge armed intrusions into southern Vietnam in 1977. Democratic Kampuchea started this war,” Ms. Becker said in an email.

“This is a desperate argument without any basis in reality. Democratic Kampuchea was a totalitarian regime. While regions varied in competency and severity they were ruled from the center and followed the same general dictates,” she said.

“Nuon Chea’s defense reflects the same murderous paranoia found in the forced confessions at Tuol Sleng [detention center]. The regime made up the idea of these traitorous networks rather than admit that Cambodians had very good reasons for despising their lives under Democratic Kampuchea.”

This sentiment was echoed by Craig Etcheson, a prominent researcher who served as chief investigator in the Office of the Co-Prosecutors at the court, who went even further in his criticism.

“Lawyers sometimes say that if the facts are against you, argue the law, if the law is against you, argue the facts, and if both the facts and the law are against you, try to burn down the courthouse,” Mr. Etcheson said in an email.

“This is what the Nuon Chea defense has been doing all along with their relentless attacks on the legitimacy of the Extraordinary Chambers, without fail attempting to try the case in the court of public opinion, rather than in the court of law,” he said.

The Nuon Chea defense would place blame at the feet of anyone but their client, he said.

“According to the defense, the victims, the civil parties, the prosecution, the judges, the court administration, the government, the donors, the U.N., the Vietnamese, indeed, everyone even remotely connected to the case is guilty of nefarious and corrupt motives, everyone, that is, except the accused person, their client,” he said.

“This line of argument would be comical, were it not so pathetic.”

The closing briefs for the prosecution, civil parties and defense teams are expected to be made public this week, while final oral submissions will be made in court next month.

A verdict is expected toward the end of the year.

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