Written by Vy Nguyen; edited by Katherine Cleary Thompson, Assistant Director of the War Crimes Research Office Case Name: Case 002/01 Date: August 7, 2014 Alleged Violations: Crimes against humanity, Extermination, Persecution, Inhuman acts Overview On August 7, 2014, the Trial Chamber of the Extraordinary Chambers in the Courts of Cambodia (ECCC) rendered its judgment in the first trial of Case 002 against the former Head of State of the Democratic Kampuchea, Khieu Samphan, and former Deputy Secretary of the Communist Party of Kampuchea (CPK), Nuon Chea. The Chamber sentenced each accused party to life imprisonment upon its finding that each was guilty of the crimes against humanity of extermination, persecution on political grounds, and other inhumane acts committed in the territory of Cambodia between 17 April 1975 and the end of 1977. Case 002 charges were also originally brought against former CPK Deputy Prime Minister for Foreign Affairs, Ieng Sary, and former CPK Minister of Social Affairs, Ieng Thirith. However, proceedings against Ieng Sary were terminated following his death in March 2013 and stayed against Ieng Thirith upon the Trial Chamber’s finding that she was unfit to stand trial. Finding that her dementia persisted and thus she remained unfit, the Chamber ordered her release from provisional detention in September 2012. Pursuant to the Trial Chamber’s order to sever Case 002 into separate trials that would address different sections of the indictment, the second trial against Kheiu Samphan and Nuon Chea began on October 17, 2014. The Chapeau Requirements In general, the Trial Chamber echoed its findings in Case 001 against Kaing Guek Eav (alias Duch) with respect to the contextual elements of crimes against humanity. Considering the status of customary international law in 1975, it affirmed that there was no requirement of an organizational plan or policy. Nor was there an established definition of “civilian,” prompting the Chamber to look to the ordinary meaning of the term as including all persons who were not members of the armed forces or otherwise recognized as combatants. Finally, although the definition of crimes against humanity contained in the law governing the ECCC requires that the attack be directed against a civilian population “on national, political, ethnical, racial or religious grounds,” the Chamber reiterated that an accused need not have knowledge of the discriminatory nature of any widespread and systematic attack. Applying these principles to the facts before it, the Chamber determined that between April 17, 1975 and December 1977, there was a widespread and systematic attack, both in its geographic scope and number of victims, directed against the civilian population of Cambodia. The targeted civilian population included soldiers who had surrendered and who thus enjoyed the same protections as civilians. As the Chamber was satisfied that the attack was carried out on political grounds against feudalist and capitalist classes pursuant to the CPK’s policies to “build socialism and defend the country,” it declined to consider whether the attacks were also based on other types of discriminatory grounds. The Crime against Humanity of Extermination Turning to the enumerated acts, the Chamber first examined the Defense submissions regarding the mens rea (subjective element) and actus reus (objective element) requirements for the crime of extermination as a constituent act of crimes against humanity. Citing to the Vasiljević Trial Judgment from the International Criminal Tribunal for the former Yugoslavia (ICTY) and the Bagosora Trial Judgment from the International Criminal Tribunal for Rwanda, the Defense argued that customary international law in 1975 required that an accused charged with the crime against humanity of extermination know his action was part of a “vast murderous enterprise” or, in the alternative, that the accused intended to either kill persons on a massive scale or systematically subject people to conditions that would lead to their deaths in a widespread or systematic manner. However, finding no “reasoned basis” to depart from the original reasoning of the ICTY in Kristć, the Chamber dismissed this argument, holding that dolus eventualis (awareness of the likely outcome of an action) suffices for the mens rea, meaning an accused need only have possessed “reasonable knowledge” that his acts or omissions were “likely to cause the death of a large number of persons.” It further refused to accept the Defense’s proposal for an “inevitability standard” for the actus reus of extermination that would have required victims to have been subjected to conditions that would inevitably lead to death. Ultimately, the Chamber determined that the scale of killings, the intent of the Khmer Rouge soldiers to kill on a massive scale and to create conditions of life that would likely lead to death, and the accused’s reasonable knowledge that such acts or omissions were likely to cause the death of a large number of persons, constituted extermination. The Crime against Humanity of Persecution Next, the Chamber looked at the elements of persecution, clarifying the interpretation of “political group” under Article 5 of the Establishment Law governing the ECCC, as well as the meaning of “persecutory conduct” for purposes of crimes against humanity. First, the Chamber concurred with the holding of the Supreme Court Chamber of the ECCC in Case 001 that a victim may be targeted on political grounds as defined by the perpetrator. In other words, victims need not have actually espoused certain political views or been members of a particular political party; rather, the discrimination may be based on the subjective views of the perpetrator. Thus, in its legal findings, the Chamber held that a sufficiently discernible group existed pursuant to criteria defined by the CPK leadership as “enemies” or “obstacles” to the pursuit of its political agenda. Second, the Chamber found that not all persecutory conduct must be expressly listed under Article 5, so long as it is of equal gravity to other enumerated crimes against humanity. To that end, the assessment of conduct that is not necessarily criminal, such as arrests, turns on the context and consideration of its cumulative effect. Here, the combined instances of murder, extermination, arrests, forced transfers, and attacks against human dignity committed against former Khmer Rouge officials and city people constituted political persecution. The Crime against Humanity of Other Inhuman Acts The Chamber then elaborated upon the crime against humanity of “other inhumane acts.” Assessing which acts fall within this category is determined on a case-by-case basis, focusing on whether the relevant conduct is of similar nature and gravity to the other enumerated offenses. While the resulting suffering caused by the conduct need not have long-term effects, factors that should be considered include: 1) the nature of the act or omission; 2) the context in which it occurred; 3) the personal circumstances of the victim; and 4) the impact of the act upon the victim. The Chamber also emphasized that neither the previous characterization nor the prosecution of particular conduct as a crime against humanity is necessarily determinative of severity in a particular case. Analyzing the facts before it, the Chamber found that the enforced disappearances, forced transfers, and attacks on human dignity in this case were of a similar nature and gravity to the other crimes against humanity enumerated in Article 5 of the ECCC Law. In reaching this conclusion in relation to enforced disappearances, the Chamber noted that the conduct “caused great suffering both to those who disappeared, as well as to family members and others with special bonds of affection to those displaced.” With respect to the forced transfers, it cited to the “violent circumstances” surrounding the evacuation of the city, the severity of the conditions that evacuees experienced, the length of their journeys, their ill-treatment by Khmer Rouge soldiers throughout the transfers, and the fact that the evidence implied that the accused intended to commit these acts. Finally, it held that the attacks against human dignity involved subjecting evacuees to, among other things, “insufficient food, water, shelter, medical assistance and hygiene facilities,” conditions that “caused serious and lasting mental and physical suffering.” Individual Criminal Responsibility Turning to the question of individual criminal responsibility, the Chamber provided guidance on specific components of basic joint criminal enterprise and aiding and abetting liability. With regard to the first of these, the Chamber held that the common purpose necessary for joint criminal enterprise liability must have either a crime as its objective or contemplate the commission of crimes as the means of achieving an objective. With respect to the latter, acts and omissions may be used to demonstrate the intent to commit the crimes in pursuit of that common purpose. Concerning aiding and abetting, the Chamber explained that this form of liability does not require an affirmative act, but may be committed by omission. This analysis would have to be conducted on a case-by-case basis and that would involve an assessment of the position and authority of an accused. It also rejected the ICTY’s holding in the Perišić case, instead favoring that Tribunal’s holding in Šainović, which held that specific direction is not an element of aiding and abetting liability, and cited to the Taylor judgment of the Special Court for Sierra Leone, which held that the essential element was instead “substantial effect” on the commission of the crime. Interestingly, the Chamber held that while the actus reus can occur before, during, or after the principal crime has been perpetrated, assistance provided exclusively after the time of perpetration cannot satisfy the requirement of a having a substantial effect on the commission of the crime. Through propaganda materials, training sessions, and his advocacy for identifying and eliminating Khmer Republic officials, the Chamber was satisfied that Nuon Chea provided encouragement and moral support to perpetrators of crimes committed at Tuol Po Chrey, which then had a substantial effect on the commission of those crimes. The Chamber reasoned that because the policy to target these officials and Nuon Chea’s role in training and propaganda was pre-existing, the perpetrators anticipated his continued encouragement and indoctrination efforts, thus facilitating the commission of the crimes. Likewise, the Chamber found that Khieu Samphan provided practical assistance, encouragement, and moral support to perpetrators during the movement of the population through acts that included public speeches during the final offensive, claims that the “super traitors” would be punished, and subsequent praise of the Khmer Rouge policies. It described his role in the commission of crimes as important, “if not indispensable,” due to his reputation, official position, and popularity. Superior Responsibility Lastly, the Chamber addressed the issue of superior responsibility as it applies to civilian superiors. As an initial matter, the Chamber noted that the failure to prevent or punish crimes may arise at different points in time. The duty to prevent arises before the commission of crimes while the responsibility to punish arises after their commission. The Chamber further rejected the Defense’s contentions that, as a prerequisite for liability, civilian superior responsibility exists only to the extent that the superior’s effective control is similar to that of military superiors and that duty to act is recognized in domestic law. Rather, the Chamber reiterated that a superior’s duty to act, civilian or military, arises from that superior’s effective control as a matter of evidence and not of law. Ultimately, the Chamber dismissed the charge of superior responsibility against Khieu Samphan, finding that he had not exercised effective control over perpetrators of the crimes at Tuol Po Chrey. However, the Chamber found Nuon Chea responsible as a superior for the crimes committed by Khmer Rouge soldiers and officials of the Northwest Zone at Tuol Po Chrey. It reasoned that Nuon Chea held and exercised the requisite control over Khmer Rouge forces and Zone secretaries, was aware that his subordinates committed murders and acts of persecution, and failed to prevent the those crimes. Due to an insufficiency of evidence, the Chamber did not consider whether he failed to punish his subordinates after the crimes were committed. Conclusion As stated above, the Trial Chamber convicted each accused of the crimes against humanity of extermination, persecution on political grounds, and other inhumane acts committed in the territory of Cambodia between 17 April 1975 and the end of 1977. Each was sentenced to life in prison.