Khmer Rouge genocide: Nuon Chea’s death has major implications for justice in Cambodia

Former Khmer Rouge Deputy Secretary of the Communist Party of Kampuchea, Nuon Chea, in the courtroom during a 2011 public hearing at the (ECCC), in Phnom Penh, Cambodia. EPA Images

Nuon Chea, Pol Pot’s second-in-command in Cambodia’s Khmer Rouge, died on August 4 aged 93. Following Pol Pot’s death in 1998, he was the most senior surviving member of the genocidal regime that ruled over what was then known as Democratic Kampuchea.

The Khmer Rouge was a violent communist group that held power in Cambodia between 1975 and 1979. It aimed to turn the country into an agrarian utopia, declaring “Year Zero”, abolishing private property and driving millions from towns and cities before putting them to work on the land. An estimated 1.7m people died through starvation, disease, overwork and deliberate extermination.

In 2007, following years of negotiations between the Cambodian government and the United Nations, the Extraordinary Chambers in the Courts of Cambodia (ECCC) was established. The Court was tasked with prosecuting “senior leaders” and “those most responsible” for crimes committed during the regime’s rule of Cambodia.

Nuon Chea was one of five individuals put on trial by the ECCC for crimes committed during this period. In 2011, Kang Kek Iew, known as “Duch”, the former chairman of the Khmer Rouge’s most notorious security centre S-21, was found guilty of crimes against humanity; he is currently serving his life sentence.

Ieng Sary then passed away in 2013 before judgement was passed, and Ieng Thirith passed away in 2015, having been found unfit to stand trial in 2012.

Concerns over the ages of the remaining accused led the ECCC to split Nuon Chea and Khieu Samphan’s case into sub-trials. On August 7, 2014, Nuon Chea and Khieu Samphan were found guilty and sentenced to life imprisonment for crimes against humanity. On November 16, 2018, both were also found guilty of crimes against humanity, war crimes, and the genocide of the ethnic-Vietnamese. Nuon Chea was additionally found guilty of genocide against the Cham Islamic minority in Cambodia.

But Nuon Chea appealed his conviction in July this year – and the appeal was ongoing when he died.

Justice served?

Nuon Chea’s death now raises the question of whether or not his conviction stands. The ECCC’s laws are unclear on this point, and a variety of opinions exist about the impact of an appellant dying.

The International Tribunal for the Former Yugoslavia, for example, has found that trial judgements will stand when an appellant dies. National laws are varied, however. Some states, such as the UK and New Zealand, tend towards the continuation of proceedings, while others, such as Spain and Germany, favour the termination of proceedings.

In Cambodia, legal experts have claimed that because a final appeal judgement had not been given, Nuon Chea must be presumed innocent.

Indeed, Nuon Chea’s own defence team has filed a request to the ECCC’s Supreme Court Chamber, requesting that either Nuon Chea be presumed innocent, or that his appeal be allowed to continue “in the interests of justice”. It described his appeal as “of the utmost importance to the Cambodian nation”, as well as his “last chance to convey the truth to the Cambodian people”.

The situation has been further complicated, however, by the abrupt decision of the Court’s Defence Support Section and Human Resources Department to fire Nuon Chea’s defence team on the basis that their client has died.

This decision was made on August 9, before the Supreme Court Chamber could respond to the defence team’s request. Nuon Chea’s lawyers, Doreen Chen and Liv Sovanna, have described the decision as “baffling, premature, and disruptive” and that it undermines “the fundamental right of the client to legal representation”.

Indeed, their dismissal means any confidential decisions made by the Court will not be accessible to them, creating further complications in an already complex legal matter. At present, there seems to be no intention to hire a new team nor allow the former defence team to continue their work.

Genocide in Cambodia

The status of Nuon Chea’s conviction also has implications for the recognition of the genocide against the Cham in Cambodia.

Nuon Chea, after all, is the only accused to be convicted of the genocide of the Cham. This group was restricted in its ability to exercise its religion and culture throughout the Khmer Rouge regime. And from 1977 onwards, this developed into a policy of deliberate extermination.

Buddhist monks walk around a cremation pyre with Nuon Chea’s body before it is cremated, during his funeral at a pagoda in Pailin, Cambodia, August 9, 2019. EPA Images

As the ECCC is the only court tasked with responding to the crimes of the Khmer Rouge, the revocation of Nuon Chea’s conviction removes the only formal legal recognition of this crime.

It is worth noting, however, that in Cambodia, genocide recognition is not limited to judicial decisions, and is shaped by historical, political, social and cultural factors, too.

Local understandings can differ from the Genocide Convention definition adopted by the ECCC – that is, the intent to destroy, in whole or in part, a national, ethnic, racial or religious group. Instead, genocide is often locally framed as something that happened to the entire population, not only specific minority groups.

In the case of the Cham, research suggests that members of that community rarely drew distinctions between their experience and the experience of the broader population. While they hoped the ECCC would recognise their suffering under the Khmer Rouge, this did not necessarily have to include a conviction for genocide perpetrated specifically against them.

There has also been a tendency among some Cambodian communities to see the ECCC as acknowledging and recognising their experiences of “genocide”, regardless of the status of its legal judgements. This shows that recognition of genocide can be symbolically meaningful for survivors regardless of the technical details surrounding legal judgements.

The Court, for example, also has the ability to award “collective and moral reparations”. In practice, while acknowledged as reparations by the Court, these have been primarily developed by NGOs and funded by international donors. These have ranged from psycho-social support to the reform of the school curriculum.

The legal challenges arising from Nuon Chea’s death undeniably require resolution. But ECCC and other civil society initiatives intended to recognise, address and remember the Cambodian genocide will not necessarily be impacted by his death.

Nuon Chea may have passed away, but memories of the Khmer Rouge’s crimes against individual groups, and the population as a whole, will live on for generations to come.