Closing Order of Case 002 against Nuon Chea, Khieu Samphan, Ieng Sary, Ieng Thirith

In preparation for the start of trial hearings beginning on 27 June 2011 of Case 002 against the surviving Khmer Rouge senior leaders Nuon Chea, Khieu Samphan, Ieng Sary and Ieng Thirith, KI Media is starting a new series in posting installations of the public document of the Closing Order of Case 002.  The Closing Order of the Co-Investigating Judges forms the basic document from which all the parties (Co-Prosecutors, Co-Lead Lawyers for all civil parties, Defense Lawyers) will be making their arguments before the Trial Chamber judges (one Cambodian President, 2 Cambodian Judges, 2 UN judges).  Up until now, the hearings involving these four surviving senior Khmer Rouge leaders have been in the Pre-Trial Chamber over issues of pre-trial detention and jurisdictional issues.  Beginning in June 2011, the Trial Chamber will hear the substantive arguments over the criminal charges (e.g. genocide, crimes against humanity, penal code of 1956).  Available in Khmer and French.  Contact the ECCC for a free copy.

CLOSING ORDER

of Co-Investigating Judges You Bunleng and Marcel Lemonde, 15 September 2010

VI. ARMED CONFLICT

            Almost immediately following the entry into Phnom Penh of the Cambodian People's National Liberation Armed Forces (CPNLAF) on 17 April 1975, a state of international armed conflict came into existence between the Socialist Republic of Vietnam and Democratic Kampuchea. Protracted armed hostilities continued until the capture of Phnom Penh on 7 January 1979 by Vietnamese forces and beyond.

            Although the existence of the international armed conflict between Democratic Kampuchea and the Socialist Republic of Vietnam was not officially recognised until 31 December 1977 with a statement by the Cambodian Ministry of Foreign Affairs severing diplomatic ties between the two States,⁴⁵⁷ it may be concluded that from mid-April 1975 there were ongoing, frequent and escalating armed hostilities between the two States at all times leading up to the fall of the CPK.

            In fact, there is clear evidence demonstrating that Democratic Kampuchea and the Socialist Republic of Vietnam were engaging in armed hostilities in 1975,⁴⁵⁸ 1976,⁴⁵⁹ 1977⁴⁶⁰ and 1978-January 1979.⁴⁶¹ Despite there being a number of lulls in the fighting (particularly prior to 1977) at no point had a general conclusion of peace been reached between the two States, such that the international armed conflict would cease to exist.

            The CPNLAF, later renamed the Revolutionary Army of Kampuchea (RAK), engaged in armed hostilities with the Vietnam People's Army during various Vietnamese attacks and incursions into Democratic Kampuchea territory⁴⁶² as well by the RAK into the territory of the Socialist Republic of Vietnam.⁴⁶³ Furthermore, invasions and fighting took place on various islands in the Gulf of Thailand disputed by the two States.⁴⁶⁴

            The scope and intensity of the international armed conflict increased steadily and eventually resulted in two large-scale incursions of Democratic Kampuchea by Vietnamese forces in December 1977 and December 1978. The later invasion lead Democratic Kampuchea to seize the United Nations Security Council of the matter on 31 December 1978.⁴⁶⁵ By 7 January 1979, the RAK had been forced to flee Phnom Penh and, from that point forward, the CPK regime rapidly lost effective control of the greater part of Cambodian territory.

            In its 26 July 2010 Judgement in the Duch case, the Trial Chamber confirmed that at all times from April 1975 to 7 January 1979, there existed an international armed conflict between the two States that was subject to the provisions of the Geneva Conventions 1949.⁴⁶⁶