On 7 August 2014, the Trial Chamber of the Extraordinary Chambers in the Courts of Cambodia (ECCC) delivered its second trial judgment. This lengthy decision addressed the criminal responsibility of the two remaining ‘senior leaders’ of the Democratic Kampuchea regime that are the subject of Case 002: Noun Chea (Pol Pot’s second in command) and Khieu Samphan (the President of the State Presidium and the ‘public face’ of the regime). Both were convicted of crimes against humanity and sentenced to life imprisonment, the maximum penalty available under the ECCC Law. The Chamber also endorsed a number of reparations projects requested by civil parties. The judgment is significant for its detailed consideration of one of the most vivid images of the Khmer Rouge era – the evacuation of Phnom Penh and other cities, and whether this population movement was contrary to international law.
Case 002 concerns crimes committed throughout Cambodia during the entire period of the Democratic Kampuchea regime, which existed from 17 April 1975 to 6 January 1979. It is one of the most complex cases to be conducted before an international or internationalised criminal tribunal. Recognising this, as well the uncertain nature of funding for the ECCC and the fear that the advanced age of the accused meant there was a real possibility that they would not live to judgment, the Trial Chamber severed Case 002 into separate trials in September 2011. The judgment delivered in August is the first in this series of trials (hence Case 002/01), and is limited to considering three crime ‘sites’ only: the evacuation of the population of Phnom Penh (and other cities) into the countryside in April 1975 (first population movement); a further movement of the population between various zones from September 1975 to at least December 1977 (second population movement); and the execution of former Khmer Republic officials and soldiers in connection with the first population movement, in particular the executions committed at Tuol Po Chrey in April 1975. All other crime sites and policies are to be considered in future ‘mini-trials’.
The applicable law concerning crimes against humanity for the ECCC is Article 5 of the ECCC Law, which includes a requirement that the widespread or systematic attack against the civilian population (but not the underlying crimes) must have been committed on national, political, ethnical, racial or religious grounds. The Chamber held that from 17 April 1975 and continuing until at least December 1977 ‘there was a widespread and systematic attack against the civilian population of Cambodia. The attack took many forms, including forced transfer, murder, extermination, enforced disappearance and persecution’ (193). The attack was widespread ‘in both its geographical scope and number of victims’ and systematic ‘insofar as crimes of such scope and magnitude could not have been random and were carried out repeatedly and deliberately in furtherance of, and pursuant to, Party policies’ (193). Although recognising that there was no requirement in customary international law for a policy element, the Trial Chamber stated that ‘the attack was carried out in furtherance of, and pursuant to, Party policies and plans to build socialism and to defend the country’ (181, 193).
Perhaps the most challenging issue in respect of the contextual elements was the civilian nature of the population that was targeted by the attack. The difficulty was that the attack included the targeted execution and persecution of former Khmer Republic soldiers, who, until the Khmer Rouge victory, had been engaged as combatants in an internal armed conflict against Khmer Rouge forces. The Chamber found that the attack was directed against the civilian population, as the requirement was that the population be of a predominantly civilian nature and that the presence of non-civilians within the population does not necessarily deprive it of its civilian character. Finding that the definition of civilian in Article 50 of the 1977 First Additional Protocol to the Geneva Convention (API) did not apply, as it was not reflected in customary international law in 1975, the Trial Chamber defined the civilian population as including ‘all persons who were not members of the armed forces or otherwise recognized as combatants’ (185). It then found that, as the armed conflict had ended on 17 April 1975 when Phnom Penh fell and Khmer Republic soldiers surrendered, such soldiers were no longer taking a direct part in hostilities, had been rendered hors do combat and were therefore to be considered civilians (194). The judgment also added (perhaps more convincingly) that, in any event, these former soldiers comprised only a small part of the millions of civilians targeted by the regime, so their presence should not affect the overwhelmingly civilian nature of the population targeted by the attack (194).
The Chamber held that this attack was carried out on political grounds, pursuant to the plans and policies of the Communist Party of Kampuchea (CPK) to build socialism and defend the country (195), although the Chamber did reserve the ability to make findings as to other possible discriminatory ‘motives’ for this attack in subsequent cases (196).
The Trial Chamber confirmed that a perpetrator of extermination may be remote and that extermination ‘may include conditions of life aimed at destroying part of a population, such as withholding food or medicine’ (416). It also rejected a defence submission that such conditions must ‘inevitably’ lead to death (421-4). In terms of the mental element, the Chamber found that this consists of the intent to kill people on a massive scale or to inflict serious bodily injury or create conditions of living that lead to death, in the reasonable knowledge that such act or omission is likely to cause the death of a large number of persons. Here, the Trial Chamber expressly affirmed the use of the notion of dolus eventualis, thus reaffirms the ICTY Krstic approach (417). The Chamber also rejected jurisprudence suggesting that there is a heightened mens rea requirement, ie that the accused must also have ‘knowledge of a vast system of collective murder’ or that his act was ‘part of a vast murderous exercise’ (418-9). The Chamber concluded that the crime of extermination had been committed as a result of the inhumane conditions in which people had been moved during both population movements, which Khmer Rouge cadre knew would led to the death of thousands (562; 646-8), and through the execution of at least 250 former Khmer Republic officials at Tuol Po Chrey (684).
Other Inhumane Act (Forced Transfer)
The Chamber’s discussion focused on the justifications advanced by the accused for the two population movements. In relation to the first population movement, the Chamber accepted that at least 2 million people were transferred from the capital to the countryside, and that between 2,000 and 20,000 people died during the evacuation and journey, although recognising that it was impossible to be precise as to figures. The Chamber rejected the defence argument that displacement on economic grounds was permissible under customary international law in 1975, holding that this was not one of the grounds recognised by international law as justifying forced transfer (453). It then considered two main arguments advanced to justify the evacuation of Phnom Penh. First, that the evacuation was necessary due to the security threat posed by the United States and Vietnam, in particular fears that the US would recommence its bombing campaign and that Vietnam would use any internal instability to intervene in Cambodia’s affairs. Second, that the food shortage and conditions in Phnom Penh in April 1975 required the population movement.
The Trial Chamber correctly dismissed both arguments. It held that the fear of US bombing was not credible and was used as a pretext for a decision to transfer the population based on previous practices and for military, economic and ideological reasons (549-50). The Chamber recognised the difficulties faced by the regime given the increased population of Phnom Penh in 1975 due to internally displaced persons seeking refuge in the city and the likelihood of serious food shortages, However, it also noted that the regime controlled the food stocks and the means of transportation and could have transferred food to the population, rather than moving the population from the city. Thus the food situation was not considered to be the principal reason for the evacuation. The Chamber concluded that the evacuation of Phnom Penh was intentional, forced and not based on any permissible grounds. Moreover, even if the justifications had been established, the Chamber found that the evacuation and the conditions in which it occurred did not satisfy the requirement of proportionality (550). The first population movement thus constituted the crime of forced transfer as an inhumane act.
The accused suggested that the second population movement was in response to the food crisis and that people moved voluntarily to areas that were more fertile or had greater stocks of food. The Chamber held that there was no genuine choice as to whether individuals moved due to the climate of fear and control created by the regime (633) and that, in addition to furthering policies of collectivisation, the CPK hoped that these population movements would allow it to identify and isolate threats (634). Moreover, the Chamber found that the catastrophic humanitarian crisis resulted from the CPK’s own actions (including a refusal to accept assistance) and could not be justified by the need to protect the civilian population or due to military necessity (634). Further, the movement was not proportional, in that the conditions were inhumane, no or insufficient food, accommodation, transport and assistance had been provided, and people were not permitted to return to their homes (635). Thus, the Chamber found that the second population movement also constituted the crime of forced transfer as an inhumane act.
The Chamber found that the conditions imposed during both population movements caused serious and lasting mental and physical suffering and constituted an inhumane act (attacks against human dignity). It also concluded that the detention of individuals by Khmer Rouge cadre and the refusal to give information concerning the fate of some transferred people during the second population movement constituted enforced disappearances. In doing so, the Chamber indicated its view that, by 1975, customary international law recognised that such conduct ‘may be of similar gravity’ to the other enumerated crimes against humanity and therefore fall within the residual category of ‘other inhumane acts’ (643).
The Chamber found that the crime of political persecution had been committed during both population movements and in the targeting of former Khmer Republic officials. It rejected a narrow interpretation that the definition of political group would require that individuals ‘hold political views or be members of a political group or party’ (430). Instead, the Chamber found that ‘political persecution occurred where discrimination has been effected pursuant to political motivations or a political agenda against a group which itself may not hold any political views’ (430), ie perceived political allegiance is key.
The Chamber determined that the Khmer Rouge ‘identified several groups it regarded as enemies or as obstacles to the pursuit of its political agenda of socialist reform’, including high-ranking military and civilian officials of the previous regime, those who held positions with the previous regime (both civilians and soldiers) and people who had previously lived in the city who became known as ‘17 April’ or ‘new’ people (569). The Chamber found that ‘As these groups were identified pursuant to criteria defined by the CPK leadership, and the backgrounds of each were verifiable, as demonstrated by checkpoints and the questioning of the latter two groups along the way, the Chamber is satisfied that each constitutes a sufficiently discernible group’ (569). These groups were then subjected to a number of discriminatory acts, including arrest, execution and their differential treatment in the villages. It rejected the suggestion by the accused that there could be no discrimination or persecution as the intention of the regime was to treat everyone equally and that the evacuation of Phnom Penh was so indiscriminate, it could not amount to persecution (572).
Modes of Liability
The challenge for the ECCC was never really establishing the commission of crimes; rather, the challenge was to link those crimes to the two remaining leaders. Nuon Chea had been the Deputy Secretary of the CPK and a full rights member of the Party’s Central and Standing Committee (the latter being where most authority lay) who had a prominent role in many aspects of the regime, including security, dissemination of policy through the regimes two publications and ‘re-education’ of parts of the population. Khieu Samphan was a well-respected national figure, and the person generally advanced as the public face of the Khmer Rouge, who served as the President of the State Presidium (a largely ceremonial role), acted as the liaison with King Norodom Sihanouk and other factions, performed numerous diplomatic functions involving foreign governments and international organisations, and made several speeches promoting the policies of the regime. Given his background in economics, he also had an influence on the economic policies of the regime, in particular the system of collectivisation.
The Chamber determined that both accused were responsible for the crimes as a member of a joint criminal enterprise, of the basic variety (JCE I). Rejecting a suggestion that the common purpose must be inherently criminal and that the socialist revolution was not of itself criminal, the Chamber found that the common purpose must have either a crime as its objective or contemplate the commission of a crime(s) as the means of achieving an objective (695-6). It adopted a broad definition of the common purpose, ‘a common purpose to rapidly build and defend the country through a socialist revolution’ (777), and then looked at two individual policies, forced population movement and targeting of enemies. It considered that the existence of these policies was to be demonstrated by a consistent pattern of conduct involving the commission of crimes (804).
With regards to Nuon Chea, the Chamber found that ‘Nuon Chea, as Deputy Secretary of the Party who had ultimate decision-making policy with Pol Pot, was not only involved in the initial development of DK policies but also actively involved throughout the period relevant to Case 002/01 in their continuing implementation’ (861). He would have known of the population movements and of the policy of targeting former officials. The chamber was satisfied that he participated in the common purpose and made a significant contribution to it, as well as sharing the intent to commit the crimes. Nuon Chea’s suggestion that it was the zones that had been mainly responsible for the commission of the crimes was dismissed (859-60).
Khieu Samphan argued that his contributions to the regime were insignificant because he did not hold any position of authority. While the Chamber recognized that there was insufficient evidence to conclude that he exercised effective control over the perpetrators of the crimes, it held that a position of authority is not determinative of a significant contribution to a JCE, although it may be relevant (960). It found that he made a significant contribution to the JCE, including by attending meetings of the Central and Standing Committees, disseminating the content of the CPK and policies and playing a key role publicly and diplomatically and in economic matters. The Chamber accepted that while his titles and positions were part of a façade, ‘they did serve an important practical purpose as they were used to endorse CPK policies and to deceive people’ (987). His reputation was an asset to the regime, which he used to endorse and defend the common purpose and policies to move the population and to target former Khmer Republic officials.
Both men were convicted of the following charges committed as part of a JCE: murder, political persecution, forced transfer, attacks against human dignity (first population movement); political persecution, forced transfer and attacks against human dignity (second population movement); and murder and extermination (Tuol Po Chrey). The remaining charges had not been alleged to have been committed as part of the JCE and were thus considered under other modes of liability, namely: planning; ordering; instigating; aiding and abetting; and superior responsibility. There are two main points of interest here:
- Superior responsibility: The Chamber again recognized that superior responsibility existed under customary international law and extended to civilian as well as military commanders by 1975. However, it found that superior liability was established only in relation to Nuon Chea, as along with Pol Pot, he ‘exercised ultimate decision-making power’ (893). While he did not have a formal role in relation to the military, he played a key role in ordering particular attacks and had a de facto superior-subordinate relationship with both the zone commanders and the military (894). As regards Khieu Samphan, it found that ‘substantial influence alone does not establish effective control within a command structure’ and that there was no evidence he had effective control in relation to the perpetrators (1021). For the same reasons, the Chamber held that Khieu Samphan did not have the authority to issue orders (1007).
- Aiding and abetting: The Trial Chamber refused to reconsider its previous jurisprudence in light of the Perisic ICTY Appeal Judgment, finding that what is required is that the acts or conduct of an accused have a ‘substantial effect on the commission of a crime’ (710).
The Chamber entered convictions on the basis of planning, ordering (for Nuon Chea), instigating and aiding and abetting the further crimes of: extermination (first population movement); extermination and enforced disappearances (second population movement); and political persecution (Tuol Po Chrey). It took the superior responsibility of Nuon Chea into account in sentencing only.
It is expected that both Nuon Chea and Khieu Samphan will appeal the judgment. A year ago, due to the age of the defendants and the dire financial circumstances of the ECCC, it was considered that the present judgment would be the only judgment we could expect. That position has changed, largely due to the push from the Supreme Court Chamber to get Case 002/01 underway as soon as possible, increased donor support and a subvention from the General Assembly. Now that Case 002/02 has commenced (assuming the accused remain in relatively good health), it has in a sense overshadowed the limited judgment in Case 002/01. Reaction to the judgment has so far been rather muted, particularly when compared to the response to the Duch judgment in 2010.
An additional focus of discussion has been the relationship between this judgment and the next ‘mini-trial’, Case 002/02. That trial will consider a number of other crime sites and charges, including S-21 and other security centres, forced marriage, genocide against the Cham and the Vietnamese and the use of cooperatives and worksites. The extent to which evidence and legal and factual findings from Case 002/01 can be used in subsequent stages is being questioned; for example, what is the status of the findings of the Trial Chamber on the chapeau elements for crimes against humanity and the existence of a joint criminal enterprise? Moreover, the Nuon Chea defence has indicated that it will challenge the impartiality of the Trial Chamber judges in hearing subsequent stages having already reached findings on the responsibility of the accused in this judgment. What is clear is that the prolonged legal proceedings on the nature and effect of the severance will continue, and will also impact on Case 002/02.