There is often a tension between facts as they are reported in media and facts as they are alleged – and only alleged – in courts of law before a verdict has been reached. The principle of “innocent until proven guilty” is essential to current justice systems, but it’s also ontologically confusing when news reports and other sources have already established the facts we “know”.
This tension was especially hard for me to get my head around when I started reporting on Cambodia’s Khmer Rouge tribunal a year ago. It’s a massive case trying ageing leaders for a slew of crimes that took place nearly 40 years ago. An estimated 1.7 million or more Cambodians died under the Khmer Rouge regime, which ruled the country from April 1975 until January 1979. Its surviving leaders are charged with crimes against humanity, war crimes and genocide for directing policies that saw all of Cambodia’s cities evacuated, the population forced into back-breaking labour in the countryside without adequate food or medical care and any suspected “enemies” executed, some having been tortured first.
It wasn’t just the huge scale of the charges that made presumption of innocence for these leaders hard for me to grasp at first. It’s rare, even among international courts, for trials to come so long after the events have been chronicled and examined through history books, survivors’ memoirs, and the recollections of an entire generation. The time that has passed has solidified the outline of what happened in the public consciousness. So on my first day at court, it was somehow surprising to see erudite, soft-spoken defence lawyers energetically defending Pol Pot’s right-hand man, Nuon Chea, and Khmer Rouge head of state Khieu Samphan. How could these seemingly reasonable lawyers still question the accepted facts or attempt to justify these men’s actions?
Of course, I knew in theory that everyone has the right to a fair trial – even mass killers…er, alleged mass killers. That train of thought – the presumption of guilt, and the need to remind myself of the legal presumption of innocence – would become a familiar one for me over the past year as I covered the lengthy trial first for The Phnom Penh Post and then while interning for The Associated Press. I wasn’t alone in my struggle. Sydney Schanberg, a formerly Cambodia-based journalist whose writings were the basis for the film The Killing Fields, became infuriated during his cross-examination by the defence lawyers – he seemed unable to comprehend how they could possibly question Khmer Rouge leaders’ role in the tragedies he had witnessed.
Asserting relative guilt
Strangely, for my part, I found myself increasingly sympathising – even rooting for – the defence lawyers, though not for their clients. I was impressed by these professional underdogs’ thoughtful arguments in what seemed a hopeless case. Their arguments often hinged less on claiming their clients’ innocence and more on asserting the relative guilt of others who would never be tried, from current Cambodian government leaders who were once Khmer Rouge commanders to leaders of Western nations like France and the US. Such leaders, they argued, had set up an inherently biased court to absolve themselves of their own guilt, whether about complicity, colonialism or the carpet bombing of Cambodia during the Vietnam War.
“No one at this court is interested in ascertaining the truth,” said Victor Koppe, a defence lawyer for Nuon Chea, in his closing statements last month. “I can almost feel people in this courtroom saying to themselves, ‘Well, yes, but that’s because they are guilty.’” Although the judges are supposed to announce a verdict in the first half of 2014, Koppe suggested they already had an answer, thus calling into question the point of the prolonged trial.
For me, the defence lawyers’ very ability to raise such issues was part of the trial’s point, even if their impact on the verdict is questionable at best. The defence’s opportunity to humanise even the most notorious (alleged?) criminals, and to question the trial’s framework, was perhaps ironically one of the trial’s strongest rejections of regimes like the Khmer Rouge, which did not tolerate dissent nor acknowledge the humanity of its victims. The defence lawyers’ arguments got less media attention than the prosecution’s, but it was the defence that most often pointed out that these events did not occur in a vacuum and could not be pinned on a few isolated individuals. If lessons for the future are a goal of such tribunals, these attempts to connect crimes to their broader context deserve more notice.
*Justine Drennan  did an MPhil in International Relations and has been reporting, writing and editing Cambodian news stories of international interest as an intern for The Associated Press. Picture credit of Cambodian youth seeing the victims’ pictures at Tuol Sleng: Wikimedia Commons and Albeiro Rodas.