Former Khmer Rouge deputy leader Nuon Chea sits in court in November last year. ECCC
The defense lawyer for the late Khmer Rouge Brother Number Two Nuon Chea claimed on Wednesday that his death rendered him “legally innocent”.
Hence, Doreen Chen called on the Supreme Court Chamber of the UN-backed Extraordinary Chambers in the Courts of Cambodia (ECCC) to declare him as such.
She made her claims as the ECCC on Tuesday decided to terminate proceedings against Chea in case 002/02 while stating that his conviction remained under appeal.
“The Supreme Court Chamber finds that the death of Nuon Chea has the effect of extinguishing criminal actions against him and terminates all proceedings against him before the Supreme Court Chamber and remains seized of Nuon Chea defence’s urgent request,” stated the chamber’s disposition.
The discussion portion of the decision further stated: “Neither the ECCC Law nor the Internal Rules explicitly detail the consequence of convictions entered at first instance against an appellant who has died after filing his or her notice of appeal.”
In November last year, the ECCC, commonly known as the Khmer Rouge tribunal, convicted Chea of genocide, crimes against humanity and grave breaches of the 1949 Geneva Conventions in Case 002/02.
In the days before his death, Chea’s defence team had filed an appeal against his conviction. This brings the initial verdict into question as, under Cambodian law, a criminal action is terminated upon the death of the accused.
However, Chen said that despite terminating proceedings against her client, the chamber had failed to make a clear decision on his conviction in case 002/02.
“It looks like they are still undecided on this. We think the law is clear . . . Nuon Chea is now legally innocent and the Chamber needs to publicly confirm this,” he said.
Asked whether the ECCC would make its full decision clear to Chea’s defence team, ECCC spokesperson Neth Pheaktra said: “The Supreme Court Chamber will decide that at the appropriate time.”
Chen said a decision was a critical issue for “Nuon Chea, the Cambodian people, and the ECCC’s overall impact and legacy”.
She continued that the chamber also avoided questions on whether Chea’s defence team would be retained while they make a final decision on his conviction.
“I imagine that the administration will proceed with the steps to dismiss us and exclude us from their system.
“This, of course, will make it impossible for us to engage with the Supreme Court Chamber if they should have any follow up questions on our request. This makes no sense whatsoever,” she said.
Chea, who is considered the Khmer Rouge’s chief ideologist, died last Sunday at 93.
He was also sentenced in 2014 to life imprisonment in case 002/01, together with co-defendant Khieu Samphan, the Khmer Rouge head of state, for crimes against humanity.
There have been many questions over the effectiveness of the ECCC since it was first established in 1997, with the closing of Case 003 and Case 004 in particular drawing criticism.
Many international critics said the closure stemmed from the government’s reluctance to try lower-ranking Khmer Rouge officials who managed to switch alliances towards the end of the conflict.
Phil Robertson, the deputy director of Human Rights Watch’s Asia Division, told The Post on August 7 that the Khmer Rouge tribunal had failed by focusing only on high-ranking figures.
“By prosecuting only a few Khmer Rouge leaders, and letting the rest go, the ECCC failed to sustain the drive for justice for victims of the Khmer Rouge that was needed.
“Some observers will claim that the prosecutions [already] done were enough, but they are wrong because the top-most Khmer Rouge leaders were out of the sights and minds of most victims.
“There needed to also be accountability for the sort of Khmer Rouge leaders in Cases 003 and 004 who oversaw the killings at the provincial and district levels where they were known to local people who were the victims,” he said.
