Extraordinary Justice for the Ordinary People of Cambodia – Case 002/02

Case 002/02- Extraordinary Justice for the Ordinary People of Cambodia

 

“Hope history never repeat itself”

 

 

A skull of victim kept at TuolSleng Genocide museum (S-21 security prison)

 

Introduction

 

            Few tragedies in the modern world have transpired, which are as grave and horrendousas the Cambodian Genocide. Case 002/02 involves Khmer Rouge’s two top leaders- NUON Chea and KHIEU Samphan, charged with crimes against humanity, grave breaches of Geneva Convention, 1949 and genocide by killing members of the group. NUON Chea and KHIEU Samphan were senior leaders of the radical Communist Party of Kampuchea (CPK) (also known as the Khmer Rouge).After winning the Cambodian Civil war of 1975, CPK carried out their tyrannical policies and became responsible for decimating 1.7-2 million Cambodians between the period of 17th April, 1975 and 6th January, 1979. The people killed accounted for approximately twenty-five percent of thethen Cambodian population. The genocide came into knowledge of the world after overthrow of Khmer Rouge by Vietnam in late1978. The world grieved when this grave tragedy camein to light and everyone fervor such horror to never be repeated.

 

            The Vietnamese-Cambodian war (1978-89) lasted more than a decade and the Cambodian civil war ended in 1998- following which, political and military structure of Khmer Rouge were disassembled. In 1997, Cambodian government requested United Nations assistance in prosecuting the most senior and most responsible leaders for the crimes committed during the Khmer Rouge regime. In 2001, Cambodian National Assembly passed a law establishing a special court, which got an exotic name-now known as the Extraordinary Chambers in the Courts of Cambodia (ECCC). Subsequently in 2003, Cambodian government also finalized an agreement with United Nations, which led to formation of United Nations Assistance to Khmer Rouge Trials (UNAKRT). The role of UNAKRT at ECCC is to maintain international community participation and ensure free and fair trials, while maintaining highest legal standard.

 

 

NUON Chea and KHIEU Samphan

 

            NUON Cheain the Khmer Rouge regime acted as the right-hand man of the CPK’s supreme leader POL Pot. He was the chief ideologue, and brother number two in the CPK government. In 1960, he was appointed as Deputy Secretary of the CPK and a full rights member of the CPK’scentral and standing committees. For a brief time, NUON Chea also acted as Prime Minister of Democratic Kampuchea. KHIEU Samphan held various positions in CPK and Democratic Kampuchea and served as State President of the State Presidium. Both NUON Chea and KHIEU Samphan maintained principal positions during the Khmer Rouge regime and were instrumental in spreading and implementing draconian policies of the CPK government.

 

At least 20,000 victims were imprisoned at S-21 security prison, whilst only 7 made it out alive

 

CASE 002

 

            Case 002 was supposed to prosecute four accused namely- NUON Chea, KHIEU Samphan, IENG Thirith and IENG Sary. Keeping in consideration the complexity of case and age of the two accused, NUON Chea (age 92) and KHIEU Samphan (age 87), the Trial Chamber severed the case into two different trials (now known as Case 002/01 and Case 002/02). Charges against other two accused, IENG Thirith and IENG Saryweredropped. IENG Sary died in 2013 and charges against IENG Thirith, his wife were stayed and later dropped in 2011- after she was found unfit to stand trial due to dementing illness. She died in 2015. All civil and criminal actions were extinguished against IENG Thirith and IENG Sarypost their demise.

 

CASE 002/01

 

            The Trial Chamber limited the scope of charges in Case 002/01to crimes against humanity: 1) during evacuation of Phnom Penh on 17th April, 1975; 2) during movement of population in different parts of Cambodia from September, 1975 until December, 1977 and; 3) execution of former Khmer Republic soldiers at Tuol Po Chrey-during the Lon Nol regime. Judgment in Case 002/01 was delivered on 7th August, 2014, where the two defendants NUON Chea and KHIEU Samphan were convicted of crimes against humanity, murder, persecution on political grounds and other inhumane acts such as forced evacuation of the capital, Phnom Penh. However, later during appeal in Supreme Court Chamber (SCC), NUON Chea and KHIEU Samphansucceeded in overturning Trial Chamber’s decision in convicting them for extermination, murder and political persecution. SCC found insufficient evidence against NUON Chea and KHIEU Samphan for the crimes committed at Tuol Po Chrey. Though, SCC admitted that crimes against humanity indeed occurred at Tuol Po Chrey. For other crimes, both NUON Chea and KHIEU Samphan are currently serving life sentence in Case 002/01.

 

Prison roomsinside S-21 security prison

 

CASE 002/02

 

Scope and Charges

 

            The Trial Chamber limited the scope of charges in Case 002/02 to crimes against humanity, grave breaches of Geneva Convention, 1949 and genocide committed at cooperatives, worksites, security centers and execution sites (including S-21 Security Centre and ChoeungEk), genocide against specific groups namely- the Cham Muslims, the Vietnamese, Buddhist and former Khmer Republic officials, forced marriages and armed conflict against Vietnam. The charges in Case 002/02 against NUON Chea and KHIEU Samphan are through JCE’s (Joint Criminal Enterprise) common purpose, which both the defendants shared with other senior leaders of CPK such as POL Pot, TOU Samouth and others.

 

S-21 security prison used to be a high school

 

 

CPK Policy

 

            CPK’s ideology, which later became their official policy was to create a classless communist state free from Vietnamese influence. Thier leaders wanted to create a society based on rural agrarian economy formed on the principle of Marxism-Leninism and democratic centralism. To implement their policies, CPK evacuated people from Phnom Penh and various other cities in Cambodia,and pushedthem towards rural area of the country- without having any pre-planned system in place to carry out such mass displacement of people. Resultant, thousands of people died walking on the streets due to starvation, dehydration, illness or execution carried out by Khmer Rouge soldiers. Weaker section of the society, including children, elderly and women suffered the most. Intellectual class such as Doctors, teachers and other working professionals (having any kind of western influence) were considered enemy of the government and were either sent to workatthe co-operatives or prison centers to be executed.

Execution Centers and Killing sites

 

            Khmer Rouge established many execution centers to identify, arrest and smash (synonym usedfor killing) people, who were considered serious threat or enemy to the government. DC-Cam (Documentation Center of Cambodia) through interviews and physical exploration, identified 19,733 mass graves and 196 prisons that were operational through the Khmer Rouge period. At least, 1.7 million people died in 170 Cambodian districts during the four year period. More than 12,000 people are documented to have died at the S-21 security prison alone.

 

            It is ironical how modus operandi of killings during the Khmer Rouge regime and Nazi Germany period were similar. To save bullets, Nazisused gas chambers for killing people. Similarly, Khmer Rouge soldiers killed people with axes, poison spades and sharpened bamboo sticks and then buried the dead inmass graves. Sometimes, soldiers killed children by having their head smashed against a tree and then their body thrown in mass graves beside their parent’s.

 

View through barbed wire from S-21 security prison

 

Findings of Trial Chamber

 

            The Trial Chamber found that NUON Chea and KHIEU Samphan were responsible for widespread and systematic attack against the civilian population of Cambodia. The attack victimized millions of civilian across the nation, due to which large number of refugees fled to neighboring countries of Thailand and Vietnam. The attack was substantial both in terms of geographic reach and number of victims affected.The crimes committed by NUON Chea and KHIEU Samphan“included (but not limited to): enslavement, forced transfer, attack against human dignity, enforced disappearances and political persecution.”The court deduced that intention behind genocide of the Cham Muslims, Vietnamese, Buddhist and former Khmer Republic officialswas purely based on national, ethical and religious grounds.

 

            There were grave breaches of Geneva Convention, 1949 in terms of Vietnamese prisoners detained at the S-21 security prison. NUONChea and KHIEU Samphan were very well aware about the protected status of the Vietnamese civilians of war detainedat the S-21 security prison. In relation to crimes committed against Jarai people at Au Kanseng security center, the Trial Chamber was not able to satisfy itself beyond reasonable doubt,ifJarai people came within the protected status ofthe Geneva Convention, 1949.

 

            Also, Khmer Rouge conducted forced marriages throughout Democratic Kampuchea with an objective of increasing country’s population within 10-15 years. They wanted to match military dominance of Vietnam, so as by increasing their own population. Traditionally, Cambodians had a culture of having arranged marriages with the consent of both the bride and groom’s parents. During Khmer Rouge regime,forcedmarriages were arranged by local authorities under a climate of fear. Couples were asked to sleep at assigned locations, where, militiaman kept a watch on them to ensure they consummated the marriage.

 

Decision

 

            On 16th November, 2018, the Trial Chamber through their summary judgment declared NUON Chea guiltyunder Article 4 of the ECCC law for the crime of genocide committed against Vietnamese and Cham groups and KHIEU Samphanfor the crime of genocide committed against Vietnamese group.NUON Chea and KHIEU Samphan were declaredguilty under Article 5 of the ECCC Law for“crimes against humanity: including, murder, extermination, deportation, enslavement, imprisonment, torture, persecution on political, religious and racial grounds, and other inhumane acts through attacks against human dignity and conduct characterized as enforced disappearances, forced transfer, forced marriage and rape in the context of forced marriage”. NUON Chea and KHIEU Samphan were also declared guilty under Article 6 of the ECCC law for the grave breaches of Geneva Convention, 1949, namely “willful killing, torture, inhuman treatment, willfully causing great suffering or serious injury to body or health, willfully depriving a prisoner of war or civilian the rights to fair and regular trial and unlawful confinement of a civilian.”Both were given life sentence in Case 002/02 and the sentences were merged with life sentence given to them in Case 002/01, making it a single life term imprisonment.

 

Steel chains used to restrain prisoners

Conclusion

 

            A lot has been said about the slow functioning of the ECCC and that it has taken a long time for the court to reach a verdict.Looking at the statistics, oral arguments in Case 002/02 continued for 283 days, over a period of three years, during which testimonies of 185 people were heard, of which 114 were witnesses, 63 civil partiesand 8 experts. ECCC is a complex and unique hybridtribunal, having an intermix of civil and common law systems. Due to ECCC’s unique nature of functioning, it faced many procedural and legal challenges.Furthermore, there are three official languages of the tribunal- English, Khmer and French and all the documents are to be filed in atleast two working language of the court. This in itselfcontributed significantly in delaying the process.

 

            ECCC was formed with an objective to prosecute only the most senior and most responsible leaders for the crimes committed. The current (long) serving Prime Minister of Cambodia, Hun Sen, himself was a mid-level leader in the Khmer Rouge regime. If not succumb to international pressure, it is highly unlikely that more leaders from the Khmer Rouge regime will be prosecuted.Prosecution covered most of the crimes committed during the Khmer Rouge regime. Though, it was not possible for them to cover all the crimes suffered by all the victims. It is now a challenging task for Prosecution to tryother leaders responsible, as Cambodian leaders have already announced that the work of court is over and there will be no more prosecutions. Now, there are only some appeal cases left, which needs to be heard.

 

            In my opinion, Cambodian people are fighters asthey have spent their last century overcoming Japanese occupation, gaining independence from France, overthrowing dictatorships andmaking peace with Vietnam. Through their strong will and determination they have overcome most of their challenges. Through these extraordinary trials, they have not only delivered justice for their ancestors and created history for their children, but also a strong legal jurisprudencefor the world to learn from.

 

 

About Author:

 

Suyash Srivastava is human rights lawyer and photographer based in Cambodia.

 

Suyash Srivastava