Khieu Samphan, the last surviving senior leader of Cambodia's Khmer Rouge regime, has failed in his appeal to overturn his genocide conviction.
The final verdict brings a close to a court process stretching 16 years, costing $500 million and resulting in the conviction of three of the Khmer Rouge's senior leaders.
The communist movement seized control of Cambodia in April 1975, unleashing a reign of terror lasting almost four years in the South-East Asian nation.
An estimated 2 million people died due to mass starvation, political persecution and mass killings, a catastrophic forced evacuation of the capital Phnom Penh, and the establishment of forced labour cooperatives in an effort to build a classless agrarian society.
Khieu Samphan, 91, was the head of state of what was then known as Democratic Kampuchea. He was a key public face of the regime, but denied having real decision-making power in his defence.
He was put on trial alongside the Khmer Rouge's "Brother Number Two", chief ideologue Nuon Chea.
Both were convicted in two separate trials and handed life sentences in 2014 and 2018 for genocide, crimes against humanity and war crimes.
Nuon Chea died in 2019 at the age of 93.
The Khmer Rouge's key leader, Pol Pot, was never put on trial. He died in 1998.
Prison chief Kaing Guek Eav, known as Duch, was the only other leader to be convicted.
Duch oversaw the torture and forced confessions of thousands of prisoners at the notorious Tuol Sleng prison, who were later killed and buried at Cambodia's Killing Fields.
Genocide and forced marriages
Khieu Samphan's genocide conviction relates only to the treatment of one ethnic group – the Vietnamese.
But the genocide finding – often regarded as the crime of all crimes – has been viewed as a vindication of the collective suffering of the Cambodian people under the Khmer Rouge, according to Dr Rachel Killean, a senior lecturer at the University of Sydney Law School.
"Genocide is often locally framed as something that happened to the entire population, not only specific minority groups," she said.
"Recognition of genocide can be symbolically meaningful for survivors regardless of the technical details surrounding legal judgements."
In its deliberations, the Supreme Court of the tribunal, formally known as the Extraordinary Chambers in the Courts of Cambodia (ECCC), described the Khmer Rouge's rule as "one of the most tragic and catastrophic periods in human history".
The proceedings also addressed the religious persecution of Cham Muslims — who were forced to eat pork, had their Korans burned and mosques dismantled — and Buddhist monks — who were referred to "worms" or "leeches" — as well crimes of forced marriage and forced sexual intercourse.
Dr Rosemary Grey, also from the University of Sydney Law School and the Sydney South-East Asia Centre, said there was legitimate criticism of the court's failure to prosecute some sexualised crimes during the Khmer Rouge period, including forced pregnancy and rapes that were not deemed to be part of official policy.
But she said an important part of its legacy was bringing to light forced marriages orchestrated by the regime.
Dr Grey pointed out the 2018 trial judgement "controversially drew a distinction between the men's and women's experience of forced sexual intercourse within forced marriages".
"It found that the women's experience of sexual violence was grave enough to amount to the crime against humanity of 'other inhumane acts', but the men's experience was not," she said.
But the appeals chamber reversed that finding on Thursday.
"The victims of forced sexual intercourse comprise both female and male victims," the Supreme Court said, adding the practice was part of the party's attempts at population control.
The final ruling makes little practical difference, as Samphan was already serving another life sentence.
"No matter what you decide, I will die in prison," he said in his final statement of appeal to the court last year.
"I will die always remembering the suffering of my Cambodian people. I will die seeing that I am alone in front of you. I am judged symbolically rather than by my actual deeds as an individual."
The Supreme Court Chamber affirmed most of the convictions for a string of crimes against humanity, but did reverse one conviction for the political persecution of "new people" — or city dwellers and intellectuals — at one dam worksite.
The Supreme Court found that Samphan "shared the common purpose of rapidly implementing socialist revolution in Cambodia through a 'great leap forward'," and that the Khmer Rouge used "any means necessary" to achieve that goal, "including the crimes that were committed on a massive scale against the Cambodian people".
"By no stretch of the imagination could it be seriously stated that the CPK [Communist Party of Kampuchea] revolution was implemented in a benevolent or altruistic manner," Chief Judge Kong Srim said.
"The Supreme Court Chamber has determined … he merely advances an alternative reading of the facts, one that cherry picks the evidence and ignores large swaths of relevant evidence."
He added the trial chamber found that although Samphan "did not commit these crimes with his own hands", he was criminally liable for most of them as part of a joint criminal enterprise".
Closure for victims
The hybrid international and Cambodian court process was set up in 2006 to prosecute only the most senior Khmer Rouge leaders.
Australia was one of the biggest international donors, giving $40 million to the process.
The lengthy and expensive tribunal has been mired in claims of political interference in its bid to secure justice some 40 years after the crimes occurred.
Cambodian Prime Minister Hun Sen was himself was a middle-ranking commander with the Khmer Rouge before defecting and fleeing to neighbouring Vietnam, where he joined a Vietnamese-backed force to oust Pol Pot.
For Youk Chhang, a survivor of the regime and the head of the Documentation Centre of Cambodia (DC-Cam), Thursday's decision was meaningful and confirmed a sense that justice had been done.
"The loss is so huge. The suffering that took place in the past 45 years is still [with us] today," he said.
"The final judgement, it does help for us to really look at the past deeper.
"It's a matter of confirming that after genocide, we actually can live and we can rebuild … it confirmed that they will not be forgotten."
He said a prosecution for genocide was one thing, but that such crimes against humanity have occurred again and again.
"The next step is atrocity crime prevention … genocide will continue to happen because genocide is a political act."
Dr Killean said most international tribunals were long and costly, and that the achievements of the court should not be overlooked.
"The court has already had quite a significant impact on many Cambodians' lives, whether through their participation in the process or their engagement with reparation projects," she said.
She added that there was a diversity of views on the legacy of the court.
"I have spoken to victims who were incredibly invested in seeing the accused convicted, I've also spoken to some who find the whole thing an expensive and time consuming waste of energy," she said.
"I think one common theme that has emerged is that many victims see the court as having an important role to play in educating the younger generation about what happened during the Khmer Rouge regime."
While the trials have come to an end, the court must now decide what to do with the mountains of evidence it has amassed.
"These materials could reveal fresh insights on what happened during the Khmer Rouge period, and also what happened in the trials at the ECCC," Dr Grey said
"There is a very strong public interest in the court making these materials public.
However, this must be balanced against the need to respect the privacy of all those people who shared their testimony with the ECCC."
ABC/AP/AFP
