Case 002: Two Senior Leaders of the Khmer RougeKhmer Rouge Trials
CJA, along with Cambodia national attorney Sam Sokong, represents 45 Civil Parties in Case No. 002 before the Extraordinary Chambers in the Courts of Cambodia (ECCC) against the two remaining senior leaders of the Khmer Rouge: Nuon Chea and Khieu Samphan. CJA’s clients are all members of the Cambodian diaspora living in the United States.
The trial for Case 002 began on November 2011 and was initially against four defendants—Nuon Chea, Khieu Samphan, Ieng Sary, and Ieng Thirith for crimes against humanity, war crimes, genocide, and crimes under Cambodian Law. However, Ieng Thirith was released from prison in September 2012 after being diagnosed with Alzheimer’s disease and found mentally incapable to stand trial, and Ieng Sary died in March 2013. Due to the complexity of the case and the age of the accused, the Trial Chamber issued a decision to sever the case into small mini trials. The first mini trial, Case 002/1, concerns the crimes of forced evacuation from Phnom Penh, evacuation to the northwest zone, and the crimes committed at Tuol Po Chrey.
Near the close of the evidentiary hearings, the Court presided over a week long Victim Impact Hearing where 15 civil parties came forward and described the harms they suffered as a result of the crimes alleged in Case 002/1. On June 4, 2013, a CJA civil party testified during the impact and reparations hearings, on the harms inflicted upon her and her family during the forced evacuation of Phnom Penh, and the continued impact of these harms on her and her community in the United States diaspora.
The Extraordinary Chambers in the Courts of Cambodia (ECCC)
As part of the transitional justice effort to hold senior Khmer Leaders accountable, the Cambodian Government and the United Nations (UN) formed the ECCC, a Cambodian national court. A 'hybrid' national-international tribunal, the court applies Cambodian and international law and features Cambodian as well as international judges and counsel. The international element was included to assist Cambodia’s legal system in handling these cases, which involve crimes of international nature. The ECCC’s jurisdiction covers human rights crimes, including genocide, crimes against humanity, grave breaches of the Geneva Conventions of 1949, and offences under the Cambodian Criminal Code of 1956 which include murder, torture and religious persecution committed between April 17, 1975 and January 7, 1979.
Victims’ Rights in the ECCC
The ECCC is a unique court
because it grants certain rights to the victims of the crimes that fall
under its jurisdiction. “Victim” is defined as an individual who
suffered physical, psychological or material harm as a direct
consequence of the crimes committed under the regime of the Khmer Rouge
between 1975 and 1979. According to the rules of the ECCC, victims have
a right to file complaints (“Complainants”) before the ECCC as well as
to participate in the proceedings as Civil Parties if accepted by the
court. Complainants are considered to be those individuals or legal
entities which have useful information regarding the crimes under the
jurisdiction of the ECCC, and may be requested to give evidence or
testify as witnesses. Complainants are not allowed to participate in
hearings or ask for reparations. Victims who join the proceedings as
Civil Parties have the right to non-monetary, “moral and collective”
reparations if the defendants are found guilty. Moral reparations are
of a symbolic value whereas collective reparations are reparations that
benefit groups of civil parties or victims, or that benefit Cambodian
society. Victims Support Section (VSS) within the ECCC is responsible for assisting Victims who want to participate in the Court's proceedings.
There has been significant interest among Victims to be involved as Civil Parties in case 002. Almost 4,000 victims filed applications to be joined as Civil Parties, and to date, the Co-Investigating Judges have admitted 3,866 of the applicants.
Overview of Case No. 002
Case 002 has two remaining defendants, KHIEU Samphan and NUON Chea. The original case centered on four defendants (KHIEU Samphan, NUON Chea, IENG Sary and IENG Thirith) who held positions of high authority during the Khmer Rouge regime. They were accused individually as well as part of a joint criminal enterprise, of the following crimes:
- Crimes against humanity: extermination, murder, enslavement, deportation (of Vietnamese), imprisonment, torture, persecution on political, racial and religious grounds, rape (as a result of forced marriage) and other inhumane acts (forcible transfer of population, forced marriage, forced disappearance and "attacks against human dignity"), in the context of an attack against the entire population of Cambodia.
- Grave breaches of the Geneva Conventions of 12 August 1949: willful
killing, torture, inhumane treatment, willfully causing great suffering
or serious injury to body or health, willfully depriving a prisoner of
war or civilian the rights of fair trial, unlawful deportation or
confinement of civilians, against protected persons in the context of an
international armed conflict with Vietnam.
- Genocide of the Cham and of the Vietnamese.
- Offenses under the Cambodian Criminal Code 1956: murder, torture and religious persecution.
The case against IENG Thirith was suspended and she was provisionally released as of September 16, 2012 because she was diagnosed with dementia and therefore determined to be unfit to stand trial. Her husband and the Foreign Minister under the Khmer Rouge, IENG Sary, passed away on March 14, 2013
It is estimated that up to 2.2 million people died during the Khmer Rouge regime, and as many as 800,000 of these deaths were violent deaths. Because of this sheer scale of death and suffering, the Co-Prosecutors sought to limit the scope of the prosecutions to a number of specific issues. These include:
- Displacement of the population from urban to rural areas;
- The operation of labor camps, cooperatives and worksites;
- The re-education of “bad elements” and the elimination of “enemies” in security centers and execution sites;
- Crimes against particular groups, such as the Vietnamese, the Cham minority, Buddhists, and suspected traitors; and
- Forced marriage.
Severance Order and Case 002/1
On September 22, 2011, the ECCC issued a “severance order” separating Case 002 into segments by topic and chronology. The Trial Chamber decided to separate the case in order to allow the Chamber to issue a verdict and sentence, if appropriate, at the end of each segment. This arrangement would permit the establishment of facts, guilt or innocence, and the issuance of a sentence, as soon as possible, before the defendants and the victims pass away. The first segment, known as Case 002/1, includes the allegations in the indictment of crimes against humanity, including murder, extermination, persecution (except on religious grounds), forced transfer and enforced disappearances, that occurred during the forced evacuation of Phnom Penh in April 1975 and the second phase of forced transfers from different parts of the country in 1976, as well as the execution of former Lon Nol soldiers at Tuol Po Chrey in Pursat immediately after the Khmer Rouge takeover in 1975. In addition, Case 002/1 involved evidence on the structure of Democratic Kampuchea, the Roles of each of the Accused (both in the establishment of Democratic Kampuchea and their role in the Democratic Kampuchea government), and the five policies driving Democratic Kampuchea. The first judgment issued by the Court will be on the guilt or innocence of Nuon Chea and Khieu Samphan on these crimes only. The Court has not yet scheduled the dates for the other trials.
As of June 2013, the Court has only held substantive and impact hearings for the first segment. The Case File already contains 46 written records of interviews with the Charged Persons; over 1,000 written records of interviews of witnesses and Civil Parties; numerous reports on crime sites, demographic data and medical evidence; as well as over 11,600 pieces of documentary evidence relating to the facts of the case.
On September 7, 2010 the ECCC issued the Order on the Admissibility of Civil Party Applicants Residing Outside the Kingdom of Cambodia, in which it declared 30 out of 41 of the clients CJA represents admissible as Civil Parties in Case 002. The rest of the applications were declared inadmissible on the grounds of insufficient information necessary to support the application and a lack of causal link between the alleged harm and the facts under investigation by the Co-Investigating Judges.
CJA appealed the decision on September 17, 2010 and on June 24, 2011, the Pre-Trial Chamber of the ECCC reversed the order, announcing that over 1,700 rejected applicants would now be accepted [PDF, 17.3 MB], bringing the total number of Civil Parties to 3866. Read more on the reactions of Cambodian-American Civil Parties.
Initial hearings commenced in June 2011, addressing, among other issues, reparations to be awarded to the Civil Parties upon a conviction, and the parties' voluminous witness lists—more than 1000 in total. Read a summary of the first week of hearings here.
Since then, CJA attorneys have questioned key witnesses, including former Khmer Rouge official LONG Norin on the treatment of Cambodians that returned to Cambodia from abroad after the start of the Khmer Rouge regime, and former Khmer Rouge soldier PE CHUY Chip Se on the forced transfer of civilians during the war.
On May 14, 2013, the Court announced that they were bringing substantive hearings to a close. From May 27 to June 4, they held an impact hearing on the harms suffered by civil party victims, in order to determine the appropriate reparations for this portion of the trial. CJA client Sophany Bay testified on June 4, 2013, regarding the harms inflicted upon her and her family during the forced evacuation of Phnom Penh, and the continued impact of these harms on her and her community in the United States diaspora. Video of her testimony is below and a detailed summary of her testimony is available here. Ms. Bay is currently a mental health counselor at the Gardner Mental Health Center in San Jose, CA, where she assists fellow victims of the Khmer Rouge regime with post-traumatic stress disorder (PTSD) symptoms; as such, she was able to provide particular insight to the Chamber regarding the long-term mental health problems that victims of the regime suffer, regardless of the time elapsed or distance from Cambodia. Ms. Bay also lost her three young children during the Khmer Rouge regime, and suffers from PTSD to this day. Ms. Bay and the other civil parties still await a reparations judgment.
The hearings ended with the testimony of psychological expert, Dr. Chim Sotheara, who described the harms of the Cambodian people living in Cambodia and abroad (especially in the United States) and described the high levels of Post-Traumatic Stress Disorder among survivors living inside and outside of Cambodia. These statements will help determine the gravity of the harms committed against the Cambodian people and are important in recognizing the continued impact of these crimes. The testimony of the psychological expert is available here.
Due to financial difficulties and declining political will both internationally and domestically in Cambodia, it remains unclear if the court will continue to try the other categories of this case. This would be very disappointing for many of the victims, as forced displacement was perhaps the least of the crimes they suffered.
Photo Credits: Heng Sinith
For more information: www.eccc.gov.kh