Case 002: Two Senior Leaders of the Khmer RougeKhmer Rouge Trials
CJA, along with national Cambodian organization Legal Aid Cambodia, 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 during which 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, as to 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.
On August 7, 2014, the court found Nuon Chea and Khieu Samphan guilty of crimes against humanity associated with the forced evacuation of Phnom Penh and the subsequent forced transfer of the population, as well as the executions of Lon Nol Soldiers at Tuol Po Chrey. The court sentenced the senior leaders to life imprisonment and awarded reparations to the 3,866 victims participating in the trial. Watch the verdict here. On October 17, 2014, the court began to hear evidence on the remaining charges against Khieu Samphan and Nuon Chea. The trial was suspended briefly and was scheduled to resume on January 8, 2015, but was delayed until January 15 because of Khieu Samphan's health issues. This will be the final trial against the two senior leaders.
The Extraordinary Chambers in the Courts of Cambodia (ECCC)
As part of the transitional justice effort to hold the senior leaders of the Khmer Rouge 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 an 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 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 they 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. The 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 senior leadership positions during the Khmer Rouge regime. They were accused individually and jointly (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 (including 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 on 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 that as many as 800,000 of these deaths were violent deaths. Because of the 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 it would facilitate the issuance of a sentence as soon as possible, before the older defendants and victims passed away. The first segment, known as Case 002/1, covered the allegations in the indictment of crimes against humanity — including murder, extermination, persecution (except on religious grounds), forced transfer and enforced disappearances — which 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 played by each of the accused (both in the establishment of Democratic Kampuchea and in the Democratic Kampuchea government), and the five policies driving Democratic Kampuchea. The first judgment issued by the court against Nuon Chea and Khieu Samphan found the senior leaders guilty of these crimes only. The second trial, which will cover the remaining charges against the senior leaders, commenced on October 17, 2014. For the full list of crimes to be covered at the trial, click here.
By the close of the substantive hearings and impact hearings in Case 002/1, the court received 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; and over 11,600 pieces of documentary evidence relating to the facts of the case. Video highlights and transcripts of the proceedings are available on the court website.
Civil Party Applicants
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 CJA's clients 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, bringing the total number of Civil Parties to 3,866.
Case 002/1 - Hearings
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 1,000 in total.
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 substantive hearings would be brought to a close. From May 27 to June 4, the court held an impact hearing on the harms suffered by the Civil Parties, 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 the distance from Cambodia. Ms. Bay lost all three of her children as a result of the Khmer Rouge regime's brutality. During the pronouncement of the judgment against Khieu Samphan and Nuon Chea, the court specifically named Sophany Bay as a victim of the Khmer Rouge’s evacuation of Phnom Penh, and it recognized that her daughter died as a result of the evacuation. The judgment provided a long awaited recognition of the harms suffered by Ms. Bay and all of the victims.
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 PTSD among survivors living inside and outside of Cambodia. These statements helped 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.
Case 002/1 - Judgment
On August 7, 2014, the court sentenced the two former senior leaders to life imprisonment for the crimes against humanity committed during the start of the Khmer Rouge regime. Specifically, the Trial Chamber found that Nuon Chea and Khieu Samphan, along with other Khmer Rouge officials, were part of a joint criminal enterprise to achieve the common purpose of implementing a socialist revolution and that they executed this purpose, in part, by forcibly displacing people from cities and towns to rural areas. During the first forced transfer of Phnom Penh in April 1975, nearly two million people were evacuated from the city under false pretexts and threats. The court recognized that people were forced to evacuate without adequate food, water, medical care, or accommodation and transport and as a result, many people died from exhaustion, malnutrition, and disease, including the children of Ms. Bay (whom the court specifically cited as a victim of the first movement of the population). As a result, the court found the two defendants guilty of crimes against humanity, murder, political persecution and other inhumane acts (comprising forced transfers and attacks against human dignity) during the forced movement of the population from Phnom Penh, known as the phase one forced transfer. Second, the court found the senior leaders responsible for the second phase of the movement of the population, during which approximately 430,000 people were forcibly displaced throughout Cambodia between September 1975 and December 1977, which, like the first phase, resulted in the death and starvation of the civilian population. The court found the senior leaders guilty of crimes against humanity of political persecution and other inhumane acts (comprising forced transfers and attacks against human dignity) during movement of population in phase two forced transfers. Lastly, the court found the senior officials furthered the joint criminal enterprise by implementing the policy of the Khmer Rouge to target former Khmer Republic officials, which resulted in the execution of at least 250 Lon Nol officials at Tuol Po Chrey immediately after April 17, 1975. The court found the leaders guilty of murder and extermination of Khmer Republic officials at Tuol Po Chrey. For all three crimes, the court sentenced the officials to life imprisonment. In addition to the life sentence, the Trial Chamber found that as a consequence of the crimes, the 3,866 Civil Parties in the case suffered immeasurable harm, including physical suffering, economic loss, and psychological trauma. As a result, the Trial Chamber endorsed eleven reparations projects to benefit the victims. These include: the institution of a National Remembrance Day project; the construction of a memorial in Phnom Penh to honor victims of forced evacuations; a testimonial therapy project; the establishment of self-help groups; a permanent exhibition; a mobile exhibition and education project; the inclusion of a chapter on forced population movement and executions at Tuol Po Chrey within the Cambodian school curriculum; the construction of a peace learning center; a booklet on adjudicated facts and civil party participation at the ECCC; two editions of the verdict in Case 002/01; and inclusion of Civil Party names on the ECCC website.
Prior to the judgment, CJA attorneys met with a Cambodian community of Khmer Rouge survivors in Long Beach, California, to discuss the anticipated judgment and respond to questions. CJA also issued a detailed letter to Civil Parties and community members on the parameters of the judgment, providing links to live internet streaming of the judgment. CJA continues to implement outreach and community education initiatives to keep the affected diaspora communities informed of developments in the trials.
The second and final trial against Nuon Chea and Khieu Samphan, Case 002/2, began on October 17, 2014 and covers a broader range of atrocities, including genocide; forced marriage and rape; treatment of Buddhists; internal purges; and the targeting of former Khmer Republic officials, four security centers, three worksites, and one cooperative. For the full list of crimes to be covered at the trial, click here. Following the opening statements made by the prosecutors and the defendants on October 17, the court was scheduled to hear evidence related to the Tram Kok cooperatives, however the court was forced to postpone the evidentiary hearings after a boycott by the defense teams for Nuon Chea and Khieu Samphan. Although the defense team for Nuon Chea rejoined the hearings on November 17th, counsel for Khieu Samphan continued the boycott, demanding that hearings for Case 002/2 resume only after December 29, 2014, the deadline for appeals in Case 002/1. As a result of the legal team’s continued demands, the court adjourned the hearings until January 8, 2015. Subsequent hearings will cover crimes committed at worksites, the treatment of targeted groups, crimes committed at security centers, internal purges, the regulation of marriage, the nature of the armed conflict and, finally, the role of the accused. Unless otherwise specified, proceedings will take place three times a week in Phnom Penh. You can watch any day of the trial on the court’s video archive here.
Photo Credits: Heng Sinith
For more information: www.eccc.gov.kh