Case 002/02

Court	Trial Chamber, Extraordinary Chambers in the Courts of Cambodia, Cambodia
Case number	002/19-09-2007/ECCC/TC
Decision title	Case 002/02 Judgement
Decision date	16 November 2018
Parties	Co-Prosecutors Khieu Samphan Nuon Chea
Categories	Crimes against humanity, Genocide, War crimes
Keywords	crimes against humanity, genocide, Grave breaches, war crimes
Links	Judgement
Other countries involved	Viet Nam

Summary

From April 1975 to January 1979 the Khmer Rouge committed numerous crimes to create their socialist state. Case 002/02 was limited to prosecuting the crimes that occurred at security centers and worksites, including the executions of enemies and elites, forced marriages, and other inhumane treatment. In addition, the case included the genocide of the Vietnamese, who were fighting the Khmer Rouge forces, and the Cham peoples, who were persecuted for their religious and ethnic identity.

On 16 November 2018 the Trial Chamber found Nuon Chea and Khieu Samphan guilty of crimes against humanity (including rape, forced marriage, and murder), grave breaches of the Geneva Conventions and genocide of the Vietnamese. The Chamber also convicted Nuon Chea of the genocide of the Cham peoples.

The accused were found guilty based on their leadership roles within the Communist Party of Kampuchea; Khieu Samphan had various roles, including President of the State Presidium, and Nuon Chea was the Deputy Secretary of the party. The Trial Chamber ruled that the accused failed to prevent and punish the crimes that occurred, even though they knew or had reason to know the crimes were being carried out.

Both accused were sentenced to life imprisonment.

Procedural history

On 18 July 2007, the Co-Prosecutors filed an Introductory Submission alleging Nuon Chea, Ieng Sary, Khieu Samphan, Ieng Thirith, and Kaing Guek Eav (Duch) committed crimes within the ECCC’s jurisdiction (para. 2).

On 19 September 2007, the Co-Investigating Judges ordered the charges be severed into Case 001, the scope concerning the allegations against Kaing Guek Eav at S-21 and Case 002, involving the remaining charges. On 14 September 2010, following his conviction in Case 001, the Co-Investigating Judges dismissed the charges against Kaing Guek Eav in Case 002 (para. 2).

On 17 November 2011, the Chamber found Ieng Thirith unfit to stand trial due to (most likely) Alzheimer’s disease, as a result of which she died on 24 August 2015 (para. 6).

Ieng Sary died on 14 March 2013, extinguishing all charges against him (para. 6).

The Trial Chamber again severed Case 002 on 29 March 2013. Case 002/01 was limited to crimes against humanity committed during the population movement phases and the executions of Khmer Republic officials at Tuol Po Chrey (para. 4). Case 002/02 was comprised of the crimes at security centers and worksites, including, forced marriages, rape, and internal purges. Additionally, Case 002/02 included the crime of genocide of the Vietnamese and Cham peoples (para. 12).

Related developments

A month after Nuon Chea had been convicted, the verdict was called into question with the finding that Victor Koppe, Mr. Chea’s defense counsel, was an unlicensed lawyer. Mr. Koppe, a Dutch national, was dismissed after the Chamber found he has not been a member of the bar in the Netherlands for almost three years. Without a membership to a foreign bar association Mr. Koppe could not be licensed in Cambodia. There is uncertainty as to whether this will have any effect on Mr. Chea’s case which is in the appeals stage.

See J. Wallace, Lawyer’s Status Throws Genocide Conviction of Khmer Rouge Leader Into Doubt, New York Times, 16 December 2018.

Legally relevant facts

Between April 1975 and January 1979, Khieu Samphan had various leadership roles including President of the State Presidium (para. 15), and Nuon Chea served as Deputy Secretary of the Communist Party of Kampuchea (Khmer Rouge) (para. 14).

During this period, the Party planned and created policies to building their version of a socialist state. To achieve their goals the population was forcibly transferred from the cities into worksites in the countryside (para. 276). At these worksites people faced mistreatment, harsh conditions, disappearances and killings. As part of their collectivist approach, the Khmer Rouge practiced forced marriages (para. 279), and targeted groups such as Buddhists and the Cham, because of their religion and ethnicity (para. 320).

From May 1975 to January 1979, there was an ongoing international armed conflict between the Khmer Rouge and Vietnam (para. 281). Alongside this conflict, the Khmer Rouge targeted the Vietnamese population with widespread killings, rape, torture, and other inhumane treatment (para. 294).

It is estimated that 2 million deaths occurred at the hands of the Khmer Rouge (para. 297).

Core legal questions

Who is considered a protected person under the Geneva Conventions?
Who is considered a “senior leader” for jurisdictional purposes?
What are the definitions of the crimes that fall under crimes against humanity in order to satisfy the principle of legality?
Does the definition of genocide require that the victim group be different from the perpetrators?

Specific legal rules and provisions

Articles 4, 5, 6 and 29 (new), 39 (new) of the ECCC Law.
Internal Rule 53.
Article 2 of the Genocide Convention.

Court's holding and analysis

The Trial Chamber found Nuon Chea and Khieu Samphan guilty of grave breaches of the Geneva Conventions and the crimes against humanity of murder, extermination, deportation, enslavement, imprisonment, torture, persecution on political, religious and racial grounds, and the other inhumane acts (forced transfer and marriages). In addition, both accused were found guilty of genocide of the Vietnamese, while Nuon Chea was also found guilty of the genocide of the Cham (pg. 2230-31).

The Chamber found that the accused committed these acts through a joint criminal enterprise (para. 4198, 4326). The Chamber found the accused knew or had reason to know that these crimes were being committed by subordinates (para. 4194, 4204). Nuon Chea received reports and discussed and planned policies to achieve a socialist revolution (para. 4012). The Chamber found that he had the ability to prevent and punish these crimes but did not do so (para. 4196). Khieu Samphan also advocated for a radical transformation using strict policies (para. 4206). In 1987, he conceded that he knew 20,000 people died from food shortages alone (para. 4216).

Both accused were sentenced to life imprisonment (pg. 2231).