Nuon Chea, ‘Brother Number Two’ of the Khmer Rouge, is currently on trial for crimes against humanity and genocide. He declared in August 2016 that he “will remain silent forever” if his chosen witness is not called. That witness is Heng Samrin, one time Khmer Rouge commander and current President of the National Assembly. Heng Samrin will never testify before the tribunal.
The Khmer Rouge tribunal, formally known as the Extraordinary Chambers in the Courts of Cambodia, is prosecuting the crimes of the Khmer Rogue’s 1975-1979 regime where 1.7 million Cambodians were killed, a quarter of the country’s population. It was established after six years of negotiations between the Cambodian government and the United Nations and has a unique hybrid structure which combines domestic and international judges and legal systems. In establishing this tribunal the Cambodian government was primarily seeking international legitimacy. The involvement of the UN was necessary to ensure this legitimacy but it also brought risks.
For the last thirty seven years there has been an immense continuity of leadership in Cambodia. In 1979 former Khmer Rouge members who had defected to Vietnam returned, with the aid of the Vietnamese army, to overthrow the Khmer Rouge. Heng Samrin had defected from the Khmer Rouge in 1978 fearing he would be swallowed by internal purges, and returned as the leader of the new government in 1979. Hun Sen was a young battalion commander for the Khmer Rouge before his defection, was appointed Foreign Minister in 1979, and has been Prime Minister of Cambodia since 1985.
Accordingly, leaders of the current government have an interest in preserving certain silences. They created this tribunal and they want to make sure it doesn’t stray beyond acceptable bounds. In particular, they want to ensure it doesn’t implicate them in Khmer Rouge era crimes or challenge their domestic political power. The government has significant control over the tribunal and its outcomes: it controlled which Cambodian judges were appointed, it blocked the appointment of an international judge it was opposed to, and it has hindered the investigation of additional suspects for the last eight years, including ensuring arrest warrants were not carried out. Six government leaders, including Heng Samrin, have already been called to give evidence in the investigative phase of the trial. None did so.
But what the government cannot control are the defence lawyers for whom embarrassing the government and discrediting the tribunal are part of trial strategy. They bring up human rights abuses committed by the current government. They discuss political interference in the domestic judiciary. And they link current members of the government to the crimes their clients are accused of committing.
The defence teams, both the lawyers and the defendants themselves, are well-accustomed to having their microphones cut off by judges when they mention anything politically sensitive. Once their microphones are cut off they may choose to continue to speak in the trial chamber but their words are not recorded or translated into the other languages the court operates in; they are shouting into a void. The prosecution does not benefit from allowing the defence to raise these issues, so they become complicit in enforcing the silences the government desires.
Last month’s calls for Heng Samrin to testify are not the first time the defence have sought his presence, they contend he is the “single most important witness … in a completely different stratosphere to every other witness in the case”. With Nuon Chea’s vow of silence, it seems that answers will only come if either Heng Samrin, a leader in a corrupt government and a career politician, or someone responsible for the deaths of millions, backs down. Neither seems likely.
When victims testify at the tribunal, they are given the opportunity to ask questions of the defendants. Nuon Chea has, at times, chosen to respond to these questions, mostly to place the blame on internal enemies, and at other times chosen to remain silent. Cambodians do not understand how Cambodian people could kill so many of their own. They may not get much of an answer to such a fundamental question but the record is nonetheless poorer for Nuon Chea’s silence.
Rebecca Gidley is a PhD Candidate at the School of Culture, History and Language. Her research is on the creation of transitional justice mechanisms and the Extraordinary Chambers in the Courts of Cambodia.