Former Khmer Rouge leader Khieu Samphan loses genocide appeal - Al Jazeera English

The last surviving senior leader of Cambodia's radical Khmer Rouge regime has had an appeal against his conviction for genocide rejected at a war crimes tribunal in the capital Phnom Penh.

The ruling on Thursday in the appeal of Khieu Samphan, 91, the former head of state of the 1975-1979 "Democratic Kampuchea" government, marks the final decision by the court and ends 16 years of work by the UN-backed war crimes tribunal.

The rejection of the appeal that sought to clear Khieu Samphan of the genocide of minority Cham Muslims and ethnic Vietnamese in Cambodia also closes the book on one of the regime's French-educated intellectuals who had argued that he was unaware of the crimes of mass murder perpetrated by his colleagues.

Of the two million victims of the Khmer Rouge, 100,000 to 500,000 were Cham Muslims, and an estimated 20,000 were ethnic Vietnamese.

Reading out the ruling in Phnom Penh, the tribunal's judges rejected – point after point – Khieu Samphan's numerous arguments appealing his conviction for genocide.

The "vast majority of Khieu Samphan's arguments are unfounded", Judge Kong Srim said during the lengthy reading of the decision.

Thursday's ruling is expected to be the last by the tribunal, which brought to justice just five senior Khmer Rouge leaders – including one who died during proceedings and another who was ruled unfit to stand trial – at a cost of more than $330 million.

Khieu Samphan – who is now the sole remaining leader of the regime who is behind bars – was once known as the 'Mr Clean' of the Khmer Rouge, a hardline Communist regime under which two million people perished in fewer than four years.

He had earned a doctorate from the Sorbonne in Paris in the late 1950s and had a reputation as incorruptible. But in the late 1960s, he joined the Khmer Rouge revolutionary movement and became a faithful lieutenant to Pol Pot, known as Brother No 1 and the group's leader.

Pol Pot died in 1998 and never stood trial.

Khieu Samphan (right) at the UN-backed war crimes tribunal in Phnom Penh, Cambodia, on Thursday, September 22, 2022 [Nhet Sok Heng/Extraordinary Chambers in the Courts of Cambodia via AP] A symbol of the regime

Though Khieu Samphan and his legal team were unable to convince the judges that he was innocent of genocide, he appeared to have convinced himself — despite being found guilty of crimes against humanity in a separate case before the tribunal in 2014.

Launching his appeal against his conviction for genocide last year, the white-haired Khieu Samphan was too frail to stand to deliver his personal remarks to the judges, so he delivered the denunciation of his conviction from his seat; a gripping 18 minutes of slow and pointed exhortations of his innocence.

Guilt, Khieu Samphan said, was assigned to him as a symbol of the regime and not for his deeds as an individual.

"I am judged symbolically," he said.

"I categorically refuse the accusation and the conviction that I had the intention to commit the crimes, no matter or when it was, any crimes, the crimes against humanity in any forms," he said.

Khieu Samphan in Cambodia's Malai district in 1980 [J Kaufman/Courtesy of the Documentation Centre of Cambodia]

Cambodia's despotic leaders — past and present — have often viewed truth "as a practical, not a moral commodity", wrote Philip Short, the author of several acclaimed biographies, including of Pol Pot.

When interviewing former Khmer Rouge officials for his book, Short found that when his questions became too direct, the interviewees would respond with what were clearly fictitious answers.

"This was even more true of Western-educated leaders like Khieu Samphan than of unlettered peasants," Short wrote. "There was no embarrassment about the lie: it was the answer such a question merited."

One truth was that Khieu Samphan was trusted deeply by Pol Pot.

As Short notes, Khieu Samphan was one of only two Khmer Rouge leaders Pol Pot had ever singled out for praise publicly.

Khieu Samphan's defence team had argued that while their client held a senior position, he was not privy to communication and meetings of more senior leaders, and was not aware of the mass crimes being committed during the period of the regime's rule.

The tribunal's International co-Prosecutor Brenda Hollis argued, however, that Khieu Samphan attended the most high-level meetings of the group's leadership and "either by silent ascent or active support", he was party to mass crimes.

"So he did more than just sit back and let others make decisions," Hollis told the appeal hearing last year.

Genocide in Cambodia

Genocide was clearly perpetrated in Cambodia and if Khieu Samphan's conviction had been overturned, it would have raised questions about the credibility of international legal mechanisms designed to prosecute the ultimate crime, Youk Chhang, director of the Documentation Centre of Cambodia (DC-CAM), told Al Jazeera.

"He has been convicted already – in the minds and hearts of the survivors; he has been convicted," said Youk Chhang, whose research institution has meticulously documented the Khmer Rogue period, educated the public, and worked with survivors.

Khmer Rouge specialist, author, and more recently Harvard academic, Craig Etcheson said the ruling to uphold the charge of genocide was extremely important for Cambodia and for international justice more broadly.

"I do think it is important to the Cambodian people, and historically it's important. There have been so few convictions for genocide in history," said Etcheson, who had spent four decades investigating, uncovering, documenting and holding to account those responsible for crimes during the Pol Pot regime.

From 2006-2012, Etcheson was also an investigator with the office of the co-prosecutor at the war crimes tribunal — whose official name is the Extraordinary Chambers in the Courts of Cambodia (ECCC).

Commenting on Khieu Samphan's apparent inability to admit to his role in the crimes of the regime, Etcheson said it would be difficult and possibly "treacherous" to attempt to contemplate what was going on in Kheiu Samphan's mind.

"He believes he is being put upon for other people's crimes. He has highly selective memory," Etcheson told Al Jazeera.

"He was right in the middle of it … responsible for hunting down traitors in the organisation."

While the effectiveness of the court will be debated for years, Etcheson said he felt a "sense of accomplishment" knowing that justice was done in the case of the Khmer Rouge leaders convicted, and that the investigation "put the fear of god" in those identified as war criminals but whose cases did not proceed to trial.

"It was definitely an attack on the impunity of the Khmer Rouge which had endured for a long, long time," Etcheson told Al Jazeera.

The regime's former foreign minister, Ieng Sary, was charged by the tribunal but he died before the completion of his trial in 2013. His wife, Ieng Thirith, former minister of social action during the regime, was charged but later ruled to be unfit to stand trial on grounds of mental health. She died in 2015.

Khmer Rouge torture chief Kaing Guek Eav, known as Duch, was convicted of crimes against humanity in 2010 for his role at the S21 death camp where more than 14,000 people were imprisoned and tortured before being sent for execution. He died in 2020.

Khieu Samphan and Nuon Chea, the regime's "Brother No. 2", were found guilty and sentenced to life in prison for crimes against humanity in 2014. Nuon Chea died in 2019 while in the process of appealing his conviction – alongside Khieu Samphan – for genocide.

There is still a great deal of work that needs to be done, Etcheson said, in terms of ongoing education that allows each generation to make sense of what happened not so long ago.

Support was also needed for the thousands of survivors and victims of the Khmer Rouge who joined the tribunal as civil parties — a first for a war crimes court — and provided testimonies.

"That's why so much money was spent to achieve individual accountability," Etcheson said.

"Lots of people did bad things but not everyone is equally guilty. It was the big bosses who dreamed up this nightmare and carried it out," he said.

'Qualified success'

Scholar and war crimes researcher Peter Maguire, author of Law and War and Facing Death in Cambodia, has been both a close observer and vocal critic of the tribunal's proceedings.

Maguire wrote in 2018 that the tribunal was "like most of the UN war crimes trials since the end of the Cold War … part good, part bad, and part ugly".

He pointed out that it took a staggering $300m and more time for the Cambodian tribunal to convict three Khmer Rouge leaders than it took the United States, the United Kingdom and France to put on trial 5,000 war criminals following World War II.

Commenting on the completion of the tribunal's work this week, Maguire said he stood by his earlier criticism of the "agonizingly slow and overpriced proceedings".

But, he said, the tribunal was a "qualified success".

Particularly "for the remarkable job their investigators did documenting the atrocities of the Khmer Rouge", Maguire said.

As he has explained, the tribunal made it "clear for all to see, in meticulous detail, who did what to whom" during the regime.

"That's the important legacy," Maguire told Al Jazeera.

The court produced what Maguire described as "an empirical record that can never be revised or challenged".

Asked who would have an interest in revising what had occurred during the Pol Pot regime, and what was uncovered by the war crimes court, Maguire said: "Well, I think, of course, the Chinese and Cambodian government."

Revising history

Researchers have feared for some time that the tribunal's database — an unparalleled trove of documentation and testimonies — will not be made available after the ECCC completes its work.

There are good reasons for such concerns.

The government of Prime Minister Hun Sen is deeply uneasy about its roots in the Khmer Rouge movement.

Several senior party members, including Hun Sen, held positions of authority in the Khmer Rouge until defecting to avoid being swept up by internal purges and then returning with Vietnamese troops to topple Pol Pot.

China, too, has a history in Cambodia that it would probably prefer to forget.

Beijing was the staunchest supporter of the Khmer Rouge, both in terms of material aid — much of it military — and also as an ideological mentor during the 1975-1979 period and beyond.

Making the court's records available should now be a priority, Etcheson said, as the tribunal enters a three-year "legacy period", agreed to by the UN and Cambodian government earlier this year, where projects and proposals to cement the tribunal's legacy will be implemented.

Etcheson said he would like to see the publication of a series of works similar to those released after the Nuremberg trials of nazis following World War II and known as the "blue series" and "green series".

This is a point on which Maguire concurs, noting that a similar series on the Cambodia tribunal would amount to an unassailable record immune to political and historical revision.

Rather than a conclusion, Youk Channg says the court moving into a legacy phase is actually the start of a new period of work.

"The legacy is the beginning not the last stage of the court," he told Al Jazeera.

DC-Cam will continue with its work educating coming generations of Cambodians about the regime, collecting oral histories, and providing services to survivors, Youk Chhang said.

"We will continue to do that," he said, adding that reporters will one day contact Cambodian scholars of the Khmer Rouge regime – an area of research that was initially led by foreign researchers.

"You must continue your work", Youk Chhang said, explaining that as the crime of genocide has not stopped in the world, neither should the people who seek to prevent it stop their work.