Defense Says Evidence Against Nuon Chea Is Flawed

Defense lawyers for Khmer Rouge war crimes suspect Nuon Chea on Tuesday accused the prosecution of relying on selective, piecemeal and unreliable evidence and blamed the court for failing to ensure that the defendant’s trial was fair and free from government interference.

Nuon Chea’s national counsel, Victor Koppe, also took aim at Prime Minister Hun Sen, Senate President Chea Sim and National Assembly President Heng Samrin, who he said all took part in criminal activities during the Khmer Rouge regime and should have been compelled to appear in court to answer such allegations.

Mr. Koppe said his closing remarks would show that the prosecutors had failed to establish what happened at the Tuol Po Chrey execution site in Pursat province in the 1970s, where hundreds or possibly thousands of Khmer Republic soldiers and officials were massacred.

He also said the defense would prove that there was no criminal intent when Communist Party of Kampuchea (CPK) policies were drafted and that those policies “were not intended or contemplated by our client, Nuon Chea.”

Lastly, he said, one of the most crucial questions that needed to be asked of the court is related to “the fairness of this trial and the legitimacy of this very tribunal,” something in which Mr. Koppe and his colleagues invested much of their time during hearings.

“Procedural irregularities during the judicial investigation and this trial have been so persistent and troubling that we have hardly had time to object to them all,” Mr. Koppe said. “So too are the effects of the government’s pervasive control over these proceedings.”

At the center of such problems at the U.N.-Cambodian hybrid court are the judges who investigated Case 002 and the panel of judges who were hired to try the case.

“[T]here is a common thread here, an underlying cause. And that underlying thread is that no one at this court is interested in ascertaining the truth,” Mr. Koppe said.

“This court was not established for the purpose of figuring out what happened in Democratic Kampuchea. It was for the opposite reason, because the people who founded it thought they already knew what happened. They thought they knew who was responsible, and so they created this court for the purpose of punishing those people. Those people decided they were guilty before this building existed.”

The problem with such an approach, however, is because “in a court of law, procedural fairness always matters,” he said.

But Mr. Koppe said a fair trial would never have been possible in the Cambodian judicial system, something that the U.N. always knew.

“The only reason we are standing here today is to follow procedure to allow the government to proudly boast that our client was tried in a fair, impartial tribunal,” Mr. Koppe said, adding that a fair trial was absolutely impossible to achieve.

The prosecutors’ case against Nuon Chea, he added, rested upon “laughably unreliable evidence” that included multiple references to books written by historian Stephen Heder and journalist Philip Short, both of which could be bought online.

Because of such reliance on those texts, Mr. Koppe said, “we could have conducted this trial for about $41,” instead of hundreds of millions of dollars.

Turning again to the case prosecutors argued for two years and then summed up during their closing statements last week and on Monday, Mr. Koppe said that there is no evidence to support the idea that Nuon Chea had any real power, and that their arguments were simplistic, biased and absurd.

He said that despite having been the deputy secretary of the CPK, Nuon Chea did not have the power to keep zone and sector chiefs in check and that conflict between such personalities “verging on outright warfare existed throughout the regime.”

But worse still, he said, is the fact that the court failed in its duty to bring before it people who could have either provided exculpatory evidence—or evidence that would be helpful to Nuon Chea’s defense—or were themselves criminally responsible during the Khmer Rouge regime.

“There are many targets whose culpability has never been discussed,” he said.

“In terms of direct relevance to the proceedings, one rises above the rest: The senior leaders of the Cambodian People’s Party, who continue not only to steal elections, land and natural resources from the Cambodian people, but continue to obfuscate their role from events for which Nuon Chea stands charged.

“If Democratic Kampuchea was a giant ‘Joint Criminal Enterprise,’ with a purpose to enslave people, then three leaders of the government bear responsibility for that. Hun Sen, Chea Sim and Heng Samrin all took active roles in carrying out policies that the co-prosecutors say were criminal.”

Because of this, “their liability rises and falls with our client. If Nuon Chea is guilty, so are they. If he enslaved the population, these three men, whose faces hang everywhere in Phnom Penh and around the country, were his loyal executioners.”

He said Mr. Samrin deserves to get a special mention for his role in the evacuation of Phnom Penh. But he was never called to testify before the court—yet another failing of the Trial Chamber and an indicator of government interference in the proceedings.

“The very individuals who have the most to gain from this tribunal’s simplistic narrative, the leaders of the [CPP], are the very ones to directly impact the evidence,” Mr. Koppe said.

“The government doesn’t even keep this a secret. Hun Sen is opposed to anyone else being investigated and vows that no such investigations will ever go forward. How can this tribunal be expected to assess our cli­ent’s responsibility under these circumstances?”

Mr. Koppe’s national counterpart, Son Arun, argued that Nuon Chea was “heartbroken” to see Cambodians suffer under the yoke of foreign and colonial influences and saw a transition to communism as a way of freeing people from it.

He said such changes were political, not criminal.

“[The prosecutors] seem to think his position was enough to make him exercise control over cadre in the CPK hierarchy,” Mr. Arun said.

“The truth is that many of the areas the co-prosecutors claim Nuon Chea had responsibility for were in fact outside the scope of his duties as deputy secretary…he only had limited ability to exercise control over cadre at lower levels.”

During a court hearing in May, Nuon Chea said he felt morally responsible for crimes committed during the Khmer Rouge regime. But less than a week after his comments, the war crimes defendant reverted to his long-held stance that systematic extermination and the starvation of people was not Khmer Rouge policy.

Closing statements from Nuon Chea’s defense continue on Thursday.

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