Khmer Rouge Tribunal: The Devil’s Advocates

Defending Pol Pot’s right-hand man at the troubled tribunal is a lonely job

Son Arun sits in his team’s office on the dusty outskirts of Phnom Penh. The room’s walls are cluttered with photographs and posters: self-satisfied Khmer Rouge cadre aboard a train, a hefty and smiling Pol Pot surrounded by his grandchildren, a colorful map of Democratic Kampuchea, an image of a young Henry Kissinger pasted above the words “Brother No. ?”

“The Cambodian people hate the Khmer Rouge,” Arun says, “and because I’m a lawyer for the accused, they hate me too.”

Arun and Dutch attorney Victor Koppe are representing Nuon Chea at the beleaguered Khmer Rouge Tribunal. Officially known as the Extraordinary Chambers in the Courts of Cambodia (ECCC), the tribunal was established in 2006 to try senior members of the Khmer Rouge with war crimes, genocide, and crimes against humanity committed during the regime’s 1975 to 1979 rule – a period in which an estimated 1.7 million Cambodians lost their lives as a group of radical intellectuals and revolutionaries sought to transform their war torn country into an agrarian utopia. Nuon Chea is often cited as being the regime’s chief ideologue and Pol Pot’s right-hand man. Having officially served as deputy secretary of the Communist Party of Kampuchea, the terse and unrepentant 87-year-old is the highest ranking member of the Khmer Rouge to be indicted by the ECCC.

The ECCC delivered its first and only conviction in 2010, eventually sentencing Kaing Guek Eav to life imprisonment for authorizing the torture and deaths of more than 12,273 inmates at the Khmer Rouge’s notorious S-21 prison. Hearings in the case against Nuon Chea and three other top Khmer Rouge cadre began in June 2011.

Because of the scope and complexity of the case (and perhaps in order to get a conviction while all of the elderly defendants were still alive), the ECCC’s second case was severed into a series of “mini-trials” in September 2011. Since then, a dementia-suffering defendant has been declared unfit to stand trial and another – her husband – has died, leaving only Nuon Chea and Khmer Rouge head of state Khieu Samphan, 82, in the dock.

Known as Case 002/01, the first mini-trial, which dealt with mass population transfers and the execution of enemy soldiers, concluded on October 31. A judgment is expected in the second quarter of 2014. In the interim, the ECCC is discussing what future mini-trials might look like. The Supreme Court Chamber wants a final trial that encompasses “S-21, a worksite, a cooperative, and genocide” to “commence as soon as possible.” At meetings last week, late February 2014 was floated as a possible start date. A new panel of judges may also be hired to expedite the process. Without citing specific details, the ECCC’s Director of Administration, moreover, is assuring the Trial Chamber that that the chronically cash-strapped court will have sufficient funds to operate until the end of 2015.

As the details surrounding Case 002/02 coalesce, Arun and Koppe are preparing for what will likely be the ECCC’s final chapter. With international and public opinion set firmly against their aging client, I ask Arun why he chose to take on a case he has little chance of winning.

“I became Nuon Chea’s lawyer because I want to know the truth,” Arun says. “I want to know why so many people died in the 1970s, and I want to know who killed them.”

When I ask Arun why he didn’t join the prosecution, he laughs. “They had no money.”

In the early 1970s, Arun served as a major in Cambodia’s U.S.-backed army, commanding a battalion of more than five hundred men in a losing war against Pol Pot’s communists.

“Once, we fought for six days and six nights without food or water,” Arun recalls. “Can you believe that? Six days without water and you can die – but I’m still alive.”

Soon after the Khmer Rouge seized the capital in April 1975, Arun fled to Thailand. Had he stayed in Cambodia, he says, he would have surely been executed.

Arun eventually settled in the United States where he worked in doughnut shops while studying at the University of Houston. In 1979, the Khmer Rouge was overthrown by an invading Vietnamese army, and in 1981, Arun was back in Southeast Asia, training anti-communist guerillas in the jungles along the Thai-Cambodian border. For the next decade, Arun would divide his time between Southeast Asia and the U.S. In the late 1980s, he even canvassed for George H. W. Bush while serving as chairman of the Cambodian Republican Federation.

Arun returned to Cambodia permanently following the UN-brokered elections of 1993. He received a certificate from Cambodia’s first lawyer training school in 1996 and has been practicing law in the country ever since.

When Arun first heard about the ECCC in 2006, he immediately tracked down his old high school teacher, Khieu Samphan. Like many other Khmer Rouge cadre, Samphan had been living free in western Cambodia since signing a ceasefire with the government in the late 1990s. Through Samphan, Arun got to know several prominent members of the long-toppled regime. One of them was Nuon Chea’s nephew.

“The day they arrested Nuon Chea in 2007, his nephew called to ask if I’d be his uncle’s lawyer,” Arun says. While other cadre lived in relative comfort, Nuon Chea – perhaps the most steadfast of his comrades – was living a simple rural existence. Arun immediately contacted Samphan, who said, “Help him. He doesn’t know anyone; he doesn’t know anything – he’s never even eaten noodles in a restaurant.” Samphan would be arrested exactly two months later.

As a hybrid tribunal, each office at the ECCC is run by both national and international staff. Tasked with hiring an international counterpart, Arun settled on Amsterdam-based Böhler Advocaten. Partners Michiel Pestman and Victor Koppe have divided the case work since being hired in 2007, with Koppe fully taking the reins from Pestman in January 2013.

“I’m interested in cases that pit the individual against the state, the international community, or public opinion,” Koppe tells me from the terrace of a Phnom Penh café. Koppe, a veteran criminal defense attorney, has represented terrorism suspects in the Netherlands, as well as defendants at the Special Court for Sierra Leone and the International Criminal Tribunal for the Former Yugoslavia. “My job is to be an advocate for my clients, to make sure that their perspectives are getting across.”

And that’s precisely what Koppe and Arun are doing at the ECCC. In the face of accusations that their client was one of the chief architects of one of the most violent episodes of the 20th century, Arun and Koppe have characterized the octogenarian revolutionary as a remote educator and propagandist. In his closing statement on October 31, Nuon Chea himself said that he taught cadre “to love, respect, and serve the people” and that his party “did not design any plan or policy to kill people… it had planned to increase population, and not to reduce it.” He claimed that he was both unaware of and uninvolved in the bloody chaos that engulfed his country, though, because of his high position, he also expressed his “moral responsibility” for being blind to, and thus not doing enough to contain the violence wayward cadre and Vietnamese and American agent provocateurs caused in order to undermine his party’s noble revolution. He concluded his statement by requesting immediate acquittal and release. Hearing Nuon Chea speak from the ECCC’s packed public gallery, I was given the sense that the old man believes what he says – and that he wishes he would have done more to purify his party’s ranks.

“Nuon Chea’s position is quite clear, and much of what we do is derived from what he tells us,” Koppe says. “He’s very friendly and keen on taking advice… but he’s saying things how he remembers them, and that’s what we have to deal with.”

When I ask Koppe if he sees any discrepancies between Nuon Chea’s version of events and historical facts, the lawyer becomes evasive. “Ask me the same questions in a few years from now,” he says.

For Arun, “These hearings are about one government, and that government isn’t only Nuon Chea and Khieu Samphan.”

In court, Nuon Chea’s defense team has argued that the Khmer Rouge was not a solid hierarchical structure, but a group comprising at least two competing factions. One of these factions was controlled by Pol Pot. The other, they say, has been ruling Cambodia ever since it was installed by the Vietnamese army in 1979.

There is some credence to this. While the ruling Cambodian People’s Party (CPP) still reminds people how it liberated the country from Pol Pot’s vicious grasp, it has consistently failed to adequately account for the roles several senior CPP politicians played within the Khmer Rouge before defecting to Vietnam in the latter half of the 1970s.

To this effect, Koppe has repeatedly decried the ECCC’s failure to summons the current president of Cambodia’s National Assembly – a man who worked alongside Nuon Chea in the early days of the revolution.

“Heng Samrin is the single most important fact witness in this trial,” Koppe told the court on October 24. “There’s no conceivable reason for this Chamber’s failure to summons him, other than the lack of meaningful independence from the government.”

“The ECCC has all the elements of victor’s justice being implemented,” Koppe adds over drinks. “No one seems to care about this, because most everybody already thinks that Nuon Chea is guilty.”

Only the international members of Nuon Chea’s defense team will publicly express such sentiments.

“Behind the scenes, we agree on everything,” Arun says of his international colleagues. “But if a document is critical of the government, I won’t sign it. I’ve told them why. I’m Cambodian. I live here 24 hours a day and 365 days a year – I’m here all the time. They come and go. I have to be careful. If I was caught, no one could help me.” Arun says that since taking on this case, he has stopped going out at night.

Without Arun, however, Koppe says that it would be impossible to defend Nuon Chea.

“Nuon Chea is a very secretive guy,” Koppe says. “He tells me a lot because he knows that Son Arun trusts me.”

Koppe claims that the two Cambodians have developed an intense personal relationship.

“When Nuon Chea was almost dying a year ago, Arun was interacting with him as though his beloved old father was in the hospital bed,” Koppe says. “I’ve had a lot of clients and I usually get pretty close to them – but never to this level. I don’t think you’d see this kind of thing with a Western lawyer.”

For his part, Arun says that despite initial resistance, he is now close to Nuon Chea “like a baby is close to his mother.”

“Little by little, I made him trust me,” Arun says of his notoriously taciturn client. The secret, Arun states, is to never push or accuse, and to always listen to Nuon Chea with a sympathetic ear. Always a strategist, Arun also says that he has never disclosed his American citizenship or military past to his client.

“Even though he’s a communist… I admire [Nuon Chea’s] strong sense of nationalism,” Arun says. Despite losing several family members to Khmer Rouge, Arun asserts that he has no qualms about representing his former enemy.

“A lawyer should be able to defend anyone.”

Despite the obstacles in their way, both Arun and Koppe say that they are committed to working together until the trial’s anticipated end in 2015.

“We have already argued before the Supreme Court Chamber that we at least want to have the genocide charges in,” Koppe says of Case 002/02. “Nuon Chea feels strongly about this – he’s always saying that there was never any intention to commit genocide, and he has the backing of a few experts on this.”

With two proposed future cases involving a handful of mid-ranking Khmer Rouge cadre being vociferously opposed by the Cambodian government, 002/02 will likely be the last case the ECCC ever hears. If the remaining defendants live long enough (and barring an unlikely acquittal), that would mean that in the span of nine years and at a cost of more than $267 million, only three people will have answered for the horrendous crimes committed during the Khmer Rouge’s three year and month reign.

In the meantime, Nuon Chea spends his days listening to the radio and watching television in his holding cell. Despite demanding an acquittal, Arun says that the elderly revolutionary has no illusions about his fate. “As soon he was placed in detention,” Arun recalls, “he said that he’ll be in prison for the rest of his life.”

Daniel Otis is a freelance journalist based in Phnom Penh. His writing has appeared in The Globe and Mail, the Toronto Star, the Southeast Asia Globe, and Australia’s The Monthly.