On the 4th August 2019, one of the former senior leaders of the Khmer Rouge, Nuon Chea, passed away at the Khmer Soviet Friendship Hospital. The third to die of five individuals accused of international crimes by the Extraordinary Chambers in the Courts of Cambodia (ECCC), his death raises important questions about the implications of the death of an appellant, as well as drawing attention to the threat of justice delayed becoming justice denied for victims of mass atrocities.

Nuon Chea, or ‘Brother No. 2’, was second in command after Pol Pot in leading the Khmer Rouge, a regime which held power in Cambodia from 1975-1979. Nuon Chea was considered a significant ideological driver of the regime, and one of those primarily responsible for the forcible restructuring of Cambodia in pursuit of an agrarian revolution.  These policies led to the deaths of an estimated 1.7 million people, through starvation, disease and overwork, as well as through the deliberate execution of anyone considered a threat to the regime.

The regime was followed by continued conflict, a period of amnesties and a policy of ‘burying the past‘ for many years. However, after several further years of negotiations between the UN and the Royal Government of Cambodia, an agreement was reached enabling the creation of the ECCC, established in 2006 to prosecute crimes perpetrated by senior leaders and those most responsible for crimes perpetrated during the regime.

Nuon Chea was arrested on 19 September 2007. Alongside Ieng Sary, Ieng Thirith and Khieu Samphan, he faced charges of crimes against humanity, grave breaches of the Geneva Conventions of 1949, and genocide. The case, known as Case 002, had been called “the most important case in the international legal history since Nuremberg” as it indicted all the four surviving senior leaders of Democratic Kampuchea.

Given the complexity of the trial, and concerns over the advanced age of the defendants, this trial was split into a series of sub-trials, and the first judgment was delivered on 7 August 2014, nearly forty years after the Khmer Rouge came to power. By this point, the number of defendants had already been halved, following the death of Ieng Sary in 2013 and the staying of proceedings against Ieng Thirith as a result of her degenerative mental health.  The remaining defendants received convictions and life sentences for crimes against humanity relating to forced transfers and the killing of the former regime’s soldiers.  On 23 November 2016, the Supreme Court Chamber quashed part of the convictions but affirmed their life imprisonment. 

The Case 002/02 judgment, significantly broader in scope, was delivered on 16 November 2018, convicting Nuon Chea and Khieu Samphan of grave breaches of the Geneva Conventions, a range of crimes against humanity (notably including the regulation of marriage), and the genocide of the ethnic-Vietnamese and (in the case of Nuon Chea) the Cham Islamic minority group.

This conviction was praised by commentators for its significance for the victims of the regime and for international criminal law more generally. However, both defendants appealed the conviction on multiple grounds, raising important questions with regards to whether Nuon Chea’s appeal can continue and the status of his conviction if it cannot.

The Court may find that without an appellant, the appeal cannot continue.  Such an approach would be in keeping with that of the International Tribunal for the Former Yugoslavia, where the Appeal Chamber in the Delic case found that as there was no appellant, no appeal could be made, and the trial judgment would therefore stand.

However, the ECCC Internal Rules specify that ‘The convicted person or, after his or her death, the spouse, children, parents, or any person alive at the time of the person’s death who has been given express written instructions from the convicted person to bring such a claim…may apply to the Chamber to revise the final judgment” on certain limited grounds, relating to the discovery of new evidence or serious misconduct on the part of a judge. While relatively narrow, this may suggest that at the ECCC, the death of an accused does not preclude the continuance of an appeal.

Domestic case law is also varied on this point, and it could be argued that allowing the appeal to continue would constitute a valuable way of protecting the rights of a defendant to clear his name, enhancing the legitimacy of the judgment, and potentially facilitating the ‘truth-telling’ goals of the tribunal by allowing findings to be tested further. These latter arguments are particularly pertinent given the wide-ranging grounds of appeal submitted by his defence team, some of which challenge the impartiality and legitimacy of the Trial Chamber itself, and which differ significantly from those put forward by Khieu Samphan’s team.

If the appeal does not continue, then the status of Nuon Chea’s conviction is unclear. Under Article 35 new of the Law on the ECCC, the accused shall be presumed innocent as long as the court has not given its definitive judgment. If the trial judgment is considered the definitive judgment, then Nuon Chea’s conviction may stand. However, if the definitive judgment is considered the final appeal judgment, then it may be that the trial judgment is unable to be considered legally sound, meaning Nuon Chea may be presumed innocent until/unless his appeal is heard. In such a scenario, the ECCC’s legal recognition of the genocide perpetrated against the Cham community, and the role of Nuon Chea in a range of additional mass atrocities, would lose its legal force.

Regardless of the outcome, the death of Nuon Chea prior to his appeal being completed draws attention to the risks for the rights of both defendants and victims in delaying the delivery of justice. The ECCC has continued to be subjected to sustained critiques for the time it had taken to complete its cases, resulting in many victims, as well as defendants, dying before judgments were delivered. During my research into the perspectives held about the Court amongst survivors of the regime, the issue of expediency and a wish for closure was raised time and again. I was repeatedly asked when the Court would finish its work, and attention was drawn to the advanced ages of the accused. The depletion of the number of defendants was often attributed to the Court’s slow progress, and many respondents voiced their frustration at having had to wait so long, and their fear that the other defendants would also die, meaning that the Court ‘will have been a failure’. Such views are natural given the several decades that have passed since the Khmer Rouge inflicted years of hardship and suffering on Cambodian society, and highlight the profound importance of delivering timely responses to mass atrocity.