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| Viren Mascarenhas |
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| Morgan Bridgman |
Due the complexity of the issues at stake, the trial for Case 002/02 only covered the conduct of Nuon Chea and Khieu Samphan, from April 17, 1975, through Jan. 6, 1979, and limited its inquiry to whether the two men committed crimes against humanity; grave breaches of the Geneva Convention; and genocide. The trial chamber ultimately found that both were guilty of participating in a joint criminal enterprise with a common purpose to implement radical socialist revolution in Cambodia and "defend the party against enemies by whatever means necessary."[1] Additionally, the trial chamber determined that the men bore individual criminal responsibility for their actions while serving in leadership positions for the Communist Party of Kampuchea, or CPK, otherwise known as the Khmer Rouge.
Nuon Chea was one of the founding members of the regime, and among holding other positions of influence served as its deputy secretary from 1960 to 1979. He was the "right hand man" of Pol Pot, the most senior member of the party, and was influential in constructing, disseminating and executing the policies of the regime. Khieu Samphan had less direct authority in his role as deputy prime minister and president of the state presidium. However, as the nominal head of state for the regime, he "actively, vocally and publicly promoted" the common purpose of the regime on an international stage.[2]
In its judgment, the trial chamber outlined the core policies that drove the regime's common purpose, which included the forced movement of populations, the establishment of work camps and execution sites, the targeting of specific groups, and the strict regulation of marriage and procreation.
Work camps were established with the specific purpose of creating a "labor and production force of strictly controlled people," but also resulted in the death of thousands due to both poor working conditions and deliberate slaughter.[3] "Security centers" and execution sites were created with the specific intent to murder those suspected of being serious enemies of the regime. Civilians who identified as Vietnamese, Cham or Buddhist were specifically targeted with the goal of establishing "an atheistic and homogenous society without class divisions."[4] The targeted groups were more than just discriminated against; the trial chamber found that many were victims of religious and political persecution, torture, imprisonment and extermination.
The convictions of Nuon Chea and Khieu Samphan fell into three categories of criminal liability: participation in a joint criminal enterprise; aiding and abetting the commission of crimes against humanity; and acting as a superior such that they were responsible for the war crimes of other members of the CPK.
First, the trial chamber found that both men participated in a joint criminal enterprise to commit a multitude of crimes, and that they bore the requisite discriminatory and specific intent to commit these crimes to effectuate a common purpose.
Under the joint criminal enterprise theory of liability, the trial chamber found both men guilty of committing the crimes against humanity of murder, extermination, deportation, enslavement, imprisonment, persecution on political, religious and racial grounds, and other inhumane acts. Both men were found guilty of committing the crime of genocide against members of the Vietnamese ethnic, national and racial group. They also were found to have committed grave breaches of the Geneva Convention by willfully torturing, killing, advocating for inhumane treatment, causing great suffering and serious injury, and willfully depriving individuals held at S-21 Security Center of the right to a fair and regular trial.
The trial chamber next found both men guilty of aiding and abetting the commission of murder at multiple worksites across the country and that they provided encouragement and moral support, "urging CPK cadres to implement the Party Center's policies zealously."[5] Both men had a substantial effect on the commission of the crime, and were aware of such effect, giving them the requisite intent to be found guilty under this theory of criminal liability.
Finally, the trial chamber found Nuon Chea guilty of committing genocide against the Cham ethnic and religious group, under the doctrine of superior responsibility. The trial chamber, however, was unable to find that Khieu Samphan had the necessary specific and discriminatory intent to commit genocide against the Cham, so Nuon Chea alone was found guilty of genocide against the Cham.
Ultimately, the trial chamber sentenced both Nuon Chea and Khieu Samphan to life imprisonment, a sentence that each was already serving for a 2014 conviction by the same chamber for other crimes against humanity corresponding to the same events.[6] In tandem, the trial chamber found that the 3,865 civil parties, or named and living "victims" of the case, had suffered immeasurable harm in the form of physical and emotional suffering, economic loss and psychological trauma arising from the loss of loved ones.
With the authority to only provide collective and moral reparations, not monetary payments, the trial chamber awarded the civil parties reparations in the form of support for proposed projects. The projects focus on educating Cambodians and the global community on the history of the Khmer Rouge, with the goal of avoiding repetition, documenting the suffering of specific groups of victims, and providing mental and physical care to aid in the civil parties' rehabilitation.
The trial chamber's decision marks the end of a chapter in arguably one of the darkest times in modern world history. The deputy prime minister of Cambodia, Sar Kheng, has acknowledged that this judgment is the last of its kind — there will be no further attempt to prosecute former Khmer Rouge officials. The limited scope of the trial should not come as a surprise. Prime Minister Hun Sen, a former Khmer Rouge official himself, has repeatedly and publicly declared his opinion that prosecuting more individuals would result only in pain and division for the Cambodian people, and that this conflict must be put to rest.[7]
Prime Minister Hun Sen's comments reaffirm the beliefs of critics of the trial who claim that it was a sham at best, and a colossal failure of justice at worst. After the fall of the Khmer Rouge in 1979, both Nuon Chea and Khieu Samphan fled to the jungle, living as military insurgents.[8]
Upon their surrender in 1998, Prime Minister Hun Sen stated that the two leaders should be given "bouquets of flowers, not ... prisons and handcuffs."[9] The two men lived in luxury hotels for years, until, in the face of public protest, they moved to a remote town and lived comfortably until their arrests in 2007. The fact that both, now 92 and 87 years old respectively, will likely serve mere years for their brutality before their natural deaths, arguably paints a bleak picture of justice.
Others are satisfied with the final judgment, or at the very least acknowledge that it is a far superior alternative to inaction. The complex realities of prosecuting international criminal laws cannot be overlooked; the crimes at issue are decades old and widespread, thousands of individuals were active participants, or at the very least complicit, in the commission of the crimes, and most individuals who served in leadership positions are already deceased.
The prosecutors' most impressive feat in this case was convincing the trial chamber that each man had the specific intent to commit genocide, an element that is notoriously difficult to prove in the arena of international criminal law. To support a conviction, the prosecutors had to show that both men had the intent to destroy, in whole or in part, a specific targeted group of people.[10] While the trial chamber's decision did not emphasize this element of genocide, its ultimate findings provide observers and human rights activists with the sense that obtaining a conviction of genocide, while difficult, is not an impossible nor futile undertaking.
Of the five Khmer Rouge officials prosecuted by the ECCC in Case 002, only three were ultimately sentenced, while two others died awaiting trial.[11] Differing opinions aside, the judgment, at a minimum, draws attention to the humanitarian tragedy of the five-year reign of the Khmer Rouge. It is estimated that at least 1.7 million civilians, approximately 25 percent of the Cambodian population, lost their lives due to the brutal policies of the regime.
The creation of the ECCC itself marks a unique approach to the prosecution of international crimes, as the chamber was created in a joint effort between the Cambodian government and the United Nations. In contrast to modern international criminal law tribunals such as those of Yugoslavia and Rwanda, the Cambodian government retained a large amount of sovereignty over the prosecution, and the trial chamber itself was comprised of both Cambodian and international lawyers and judges. To be sure, this approach has drawbacks; critics argue that the Cambodian government, at the direction of Prime Minister Hun Sen, improperly influenced the course of the investigation and trial from the very start, and it remains to be seen whether the cooperative model of the ECCC will be emulated by future international criminal tribunals.
Viren Mascarenhas is a partner and Morgan Bridgman is an associate at King & Spalding LLP.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc. or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] ECCC Summary of Judgement, Case 002/02, 16 November 2018 at 3.
[2] Id. at 25.
[3] Id. at 8.
[4] Id. at 13.
[5] Id. at 23.
[6] ECCC Summary of Judgement, Case 002/01, 7 August 2014.
[7] https://www.theguardian.com/world/2018/nov/19/no-more-khmer-rouge-prosecutions-says-cambodia
[8] https://www.nytimes.com/2018/11/16/world/asia/khmer-rouge-nuon-chea-khieu-samphan-genocide-cambodia.html
[9] https://www.nytimes.com/1998/12/30/world/under-prodding-2-apologize-for-cambodian-anguish.html
[10] See Convention on the Prevention and Punishment of the Crime of Genocide, Art. II, https://www.ohchr.org/en/professionalinterest/pages/crimeofgenocide.aspx
[11] In Case 002/01, the Trial Chamber also sentenced a former Khmer Rouge prison commander, Kaing Guek Eav, otherwise known as "Duch," to life imprisonment.