Case 002/01

Court	Supreme Court Chamber, Extraordinary Chambers in the Courts of Cambodia, Cambodia
Case number	002/19-09-2007-ECCC/SC
Decision title	Appeal Judgement
Decision date	23 November 2016
Parties	Co-Prosecutors Khieu Samphân Nuon Chea
Categories	Crimes against humanity
Keywords	murder, crimes against humanity, extermination, forced transfer, war crimes
Links	Appeals judgement
Other countries involved	Viet Nam

Summary

Case 002/01 concerns the charges of crimes against humanity against Khieu Samphan, former Head of State of Democratic Kampuchea and Nuon Chea, former Deputy Secretary of the Communist Party of Kampuchea, committed during the forced evacuation of Cambodians to labour camps and for the executions that occurred at Tuol Po Chrey. On 7 August 2014, the Trial Chamber found both accused guilty and sentenced them to life imprisonment. Both the Prosecution and Defence appealed the decision.

The Supreme Court Chamber on 23 November 2016 issued an appeals judgement reversing some of the convictions and affirming the rest. At issue in the appeal was whether the Trial Chamber correctly defined the elements of the murder and extermination crimes against humanity. The Supreme Court Chamber affirmed the murder definition and charges, while finding that extermination requires that the accused had the direct intent to kill on a large scale. Under this definition, the Chamber reversed the convictions for the crime of extermination. The Chamber found insufficient evidence to support convictions as there were too few witnesses to support key facts beyond a reasonable doubt. Even with this reversal, the Supreme Court Chamber affirmed the life imprisonment sentences of both accused.

Procedural history

The Trial Chamber in its judgement in Case 002/01 found the accused, Nuon Chea and Khieu Samphan, guilty of the crimes against humanity of extermination, murder, persecution on political grounds, and other inhuman acts (forced transfer, enforced disappearances, and attacks against human dignity). Both were sentenced to life imprisonment (para. 2).

Nuon Chea and Khieu Samphan, as well as the Co-Prosecutors, filed appeals (para. 4). Nuon Chea’s appeal listed 223 grounds of appeal claiming that there were errors of fact that caused a miscarriage of justice. In addition there were errors of law that should invalidate the Trial Judgement, at least in part (para. 4).

The Supreme Court Chamber also granted Nuon Chea’s numerous requests to obtain additional evidence from witnesses including audio-visual materials (para. 17 & 18). Khieu Samphan’s appeal listed 148 grounds of appeal, requesting the Supreme Court Chamber to set aside the Trial Judgement, acquit him, and order his immediate release. Finally, the Co-Prosecutors filed an appeal against the Trial Chamber’s decision not to consider the third form of joint criminal enterprise as a mode of criminal liability (para. 4).

The Supreme Court Chamber pronounced its appeal judgement on 23 November 2016 (para. 15).

Related developments

On 16 November 2018 the Trial Chamber announced its judgement in the second trial against Khieu Samphan and Nuon Chea, Case 002/02. The Chamber found Nuon Chea and Khieu Samphan guilty of crimes against humanity, grave breaches of the Geneva Conventions and genocide of the Vietnamese ethnic, national and racial group. Nuon Chea was additionally found guilty under the doctrine of superior responsibility for the genocide of the Cham ethnic and religious group. Both Nuon Chea and Khieu Samphan were sentenced to life imprisonment. The sentences were merged with those of Case 002/01 into a single life imprisonment term.

Legally relevant facts

The appeal in Case 002/01 concerns the crimes against humanity that were committed by Nuon Chea and Khieu Samphan during the evacuations of part of the Cambodian population, Population Movement Phase One and Two, and at Tuol Po Chrey (para. 383). During the Population Movements, the Khmer Rouge forced the civilians to leave their homes in the cities for the countryside (para. 413). Those who refused were shot and killed (para. 414, 435). In addition, conditions during the movement were severe, with numerous people, especially children, dying from exhaustion, malnutrition or disease (para. 455). Numerous people also died from packed trains and drowning after their boats capsized (para. 546). It is estimated that 2000 to 3000 people died during the evacuation of the capitol Phnom Penh, while another hundred thousand died from other provinces due to the inhumane conditions in which they were moved (para. 536, 542).

However, limited evidence is available to support that the instances of deaths as part of population movements were calculated, or were aimed to destroy a part of the population (para. 513).

Finally, Case 002/01 evaluates the charges stemming from the executions of Khmer Republic soldiers that occurred at Tuol Po Chrey (para. 487).

Core legal questions

What is the mental element for the crime of murder (crime against humanity)?
What is the mental element for the crime of extermination (crime against humanity)?

Specific legal rules and provisions

Articles 5, 14 new (1)(b), 29 (new), 36 (new) and 39 (new) of the ECCC Law.
Article 4(1)(b) of the ECCC Agreement.
Internal rule 108(7), 104(1), 111.

Court's holding and analysis

The Supreme Court Chamber considered whether the Trial Chamber appropriately defined the mental element of both the murder and extermination crimes against humanity. The Supreme Court agreed with the Trial Chamber that murder did not require premeditation, stating that murder is generally understood as an intentional killing, and this definition is what stood in Cambodian law in 1975 (para. 387, 396 & 410). However, the Supreme Court concluded the Trial Chamber erred in defining the mental element of extermination, finding that a direct intent to kill on a large scale must be established (para. 522). From these decisions, the Supreme Court Chamber affirmed Nuon Chea and Khieu Samphan’s convictions for murder during Population Movement Phase One and entered a conviction for murder in Phase Two. While the Chamber reversed the convictions for extermination during Phase One and Two (para. 541 & pg. 519). The Chamber also reversed the charges for extermination and murder at Tuol Po Chrey (pg. 519).

The Chamber also affirmed convictions for the crimes against humanity of persecution on political grounds, other inhumane acts, and the sentences of life imprisonment (pg. 519).

The Chamber dismissed the Co-Prosecutors’ appeal as it did not demonstrate a legal error (para. 4, 1132).