Defence accuses Khmer Rouge tribunal of ‘magic’

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Former Khmer Rouge head of state Khieu Samphan, at the Case 002/02 hearing last week at the Extraordinary Chambers in the Courts of Cambodia. ECCC

The Khmer Rouge tribunal has already achieved the “holy grail” of a life sentence for former leader Khieu Samphan – now it should focus on the facts and deliver him a fair trial, his defence lawyer Anta Guisse told the court yesterday in her closing statements.

Further, potentially genocidal language found in Khmer Rouge speeches was taken out of context and was meant to “inspire” soldiers and give them “a bit of spunk”, she argued. “Mr Khieu Samphan is going to die in jail. He is going to die in jail, and he knows that,” she said.

“Mission accomplished . . . You sentenced him to life and that was the objective of this trial.”

The Khmer Rouge’s former head of state Samphan had his life sentence upheld on appeal last year for a slew of crimes against humanity. Now he stands, alongside the regime’s chief ideologue Nuon Chea, charged with a host of other crimes, including genocide and other inhumane acts.

Guisse stressed that the historical context – namely, armed conflict with neighbouring Vietnam – was vital to understand potentially incriminating speeches made by Pol Pot and Khieu Samphan in 1978, where they advocated “crushing” the Vietnamese and urged soldiers to “completely and forever eliminate the aggressive enemies of all stripes”, respectively.

The prosecution claimed this was “proof of genocidal intent”, Guisse said, but such an assessment ignored the context. “There is a problem with intellectual honesty here,” she said.

“This was in April 1978, a few months, barely, after the invasion of the Vietnamese troops. And on top of that, it was necessary of course to give a bit of spunk to the Cambodian troops because there was such a discrepancy in terms of forces.”

She criticised the “original sin” of producing an indictment that seemed to be more driven by the need for a historical record than a criminal trial, which she said led to prosecutors and judges trying to force the facts of the case into “the right box”, or make them fit a precise crime.

She added she was “flabbergasted” that her client could be found guilty of murder, due to the court performing “magic” jurisprudence by stripping the crime of its “intent to kill” requirement.

“Defending the rules of a fair trial does not have much echo with the public,” Guisse said.

“[Some might say] these Khmer Rouge have a bit of nerve, don’t you think? Were there any fair trials under Democratic Kampuchea?”

But, she said, without following proper international criminal legal procedures, or if the facts of the case are biased or distorted, “then this will only give us the semblance of a real trial, but not a fair trial in reality”.

Fellow defence lawyer Kong Sam Onn said while forced marriages may have occurred at lower levels during the regime, there was no evidence to show this was a policy enforced by his client.

He argued marriages arranged by the Khmer Rouge were not significantly different from marriages arranged by parents, and the concept of a love match was not central to Khmer traditions.

“The questioning of parental authority in matters of marriage was not allowed. And if these [Democratic Kampuchea] cadres took over the power of the parents, refusal like this in many cases was no more feasible with regard to the authorities,” he said.