Closing Order of Case 002 against Nuon Chea, Khieu Samphan, Ieng Sary, Ieng (Khiev) 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

A. MOVEMENT OF THE POPULATION Movement of the Population from Phnom Penh (Phase 1)⁷⁸³

Means and Method of the Movement

Return to Phnom Penh

240.            One witness states the CPK would threaten people that they would be shot if they returned to Phnom Penh.⁹⁰⁸ Nuon Chea stated that the intention was to permit people to return to Phnom Penh⁹⁰⁹ and Ieng Sary stated in May 1977 that the cities were re-populated after the initial population movement to the countryside,⁹¹⁰ and that people could choose to return to the city if they wished or could remain in the countryside.⁹¹¹ However, although there was indication that in rare circumstances some people were sent back to Phnom Penh to work,⁹¹² the city was largely empty of people except for limited numbers of soldiers and cadres⁹¹³ until the fall of the CPK regime.⁹¹⁴ According a statement by Pol Pot at a meeting on 6 June 1976, the population of Phnom Penh was then "more than 100,000"⁹¹⁵ As of April 1977, this included 43,810 provided rations by the General Staff.⁹¹⁶

241.            During the movement of the population from Phnom Penh, the people were often told by the CPK troops that they would only be away from their homes for a short time of two⁹¹⁷ or three days, or up to a week or two.

244. Witnesses were further told that it was necessary to remove people from Phnom Penh to organise⁹²⁷ and clean up the city⁹²⁸ such as clearing away the ammunition.⁹²⁹ 

245. Certain political justifications were also provided: some witnesses state that they were told that "Angkar" was waiting⁹³⁰ for them; that they were needed to build the rural economy,⁹³¹ to build dams, canals, and work in the rice fields;⁹³² and that the only persons authorised to remain in the city were members of the military working there.⁹³³ Others have also referred to the food shortage in Phnom Penh as a reason for the population movement and that food was supposedly more plentiful in the countryside.⁹³⁴ 

246. These justifications referred to in the evidence of witnesses have been echoed in statements made by the Charged Persons. Ieng Thirith has referred generally in an interview she gave to a journalist in 1980 to the economic, political and military reasons for the movement of people from Phnom Penh.⁹³⁵ 

247. Ieng Sary has stated in an interview with a journalist in 1975, as reiterated at a conference in 1978, that the primary reason for the population movement was food. He states that initially it was thought that there were two million people in Phnom Penh, however it was later discovered that the population of the city was actually three million. He states that prior to the CPK regime, Cambodia had received between 30 to 40,000 tons of food a month from the United States and that the CPK did not wish to ask the international community for aid, but that the CPK would have been unable to transport food from the countryside into the cities.⁹³⁶ Khieu Samphan has also stated in a radio interview in 2007 that the population was starving at the time, but conceded that there was not enough food in the countryside either; so people ate bananas with rice or manioc and only limited food aid was delivered from the allies of the CPK.⁹³⁷ However, in a prior statement, Khieu Samphan asserted that any government recently out of war would have faced the problem of starvation and he asserted that after moving people out of Phnom Penh, people had enough food in cooperatives.⁹³⁸ 

248. The Charged Persons have also referred to the ideology of the regime as a justification for the population movement. In the face of the food crisis, Nuon Chea has asserted that the objective of the regime was to remain independent and sovereign.⁹³⁹ Khieu Samphan has also stated that Pol Pot did not want to live under the control of foreigners.⁹⁴⁰ The movement of people from the cities into the countryside has also been referred to by Nuon Chea as a component of the socialist revolution.⁹⁴¹ Ieng Sary has stated that the objective was to transform the uninhabited quarters of the city into industrial sites.⁹⁴² He also stated that it was necessary to train the people from the cities to endure moral and physical sufferings through hard labour.⁹⁴³ One witness refers to Ta Mok stating that it was viewed as not necessary to have markets or cities and that all the city population were to go to rural areas to build the rural economy.⁹⁴⁴ Duch states in interview that the CPK objectives were to turn the whole country into peasants, abolish privatisation, and to force the technicians to do farming so as to make them powerless and dependent on peasants.⁹⁴⁵ CPK-era documents state that reeducation was not deemed possible on a large scale and so it was necessary to "evacuate" people to the rural areas⁹⁴⁶ to stop "uncontrollable ideological contamination of the revolutionary ranks";⁹⁴⁷ and to participate in the movement to increase production, sustain the population, and contribute to defending and building the country.⁹⁴⁸ 

249. Finally, with respect to security concerns, Nuon Chea has stated that it was necessary to move the people from Phnom Penh to facilitate the military defence of the country from Vietnam⁹⁴⁹ to protect the people from war.⁹⁵⁰ Ieng Sary referred to a secret document allegedly obtained from the CIA concerning plans to infiltrate the city.⁹⁵¹ Khieu Samphan referred to the perceived need to make the country strong to fight the enemy.⁹⁵² CPK-era documents state that if the population had not left the cities, the enemies might have been able to launch surprise attacks from behind.⁹⁵³

Planning

250. Prior to 1975, the CPK had implemented a policy of removing people from the towns and cities that came under their control: people were moved totally or partially from urban areas in Steung Treng, Kratie, Banam and Udong.⁹⁵⁴

251. According to some witnesses, the decision to move the population from Phnom Penh was made in February 1975⁹⁵⁵ and was a deliberate plan of the CPK senior leaders. ⁹⁵⁶ According to a former East Zone cadre, this decision was followed in February 1975 by orders from Pol Pot that all districts and sectors should prepare by building houses to receive people from Phnom Penh.⁹⁵⁷

252. One witness explained that in early April 1975 a meeting took place at Pol Pot's office in Tang Poun Village, Kampong Tralach (Leu) District, Kampong Chhnang Province which was focused on the plan to move the population from Phnom Penh. ⁹⁵⁸ Although there was no official record taken of the meeting, Nuon Chea and Khieu Samphan each participated in the meeting⁹⁵⁹ and took their own notes.⁹⁶⁰ The commanders were told to "set up meetings when they returned to their sectors and make plans to evacuate the people from the cities under their responsibilities. This information was subsequently published in the Revolutionary Flag and the [Kampuchean] Front Flag and was issued to all Party members" (although there is no known existing record of such publications).⁹⁶¹

253.            An additional witness refers to a coordination meeting prior to 17 April 1975 to which all CPK commanders of his unit (then the North Zone Division 1, later Centre Division 310) were invited as reported to him by Et, the commander of his Battalion.⁹⁶² Another witness states that about one month before the entry into Phnom Penh, a meeting was held in Phnom Sar (the headquarters of the CPK military command of Kampot). Sek, the Chief of Staff of Southwest Zone Sector 35, chaired the meeting. Southwest Zone Secretary Ta Mok stated that it was not necessary to have markets or cities and that all people must be evacuated from the cities to the rural areas in order to build the rural economy in two days after occupying the

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city.

254.            Some witnesses state that Sam Bit, Commander of Division 2 of the Southwest Zone, attended a meeting with upper-echelon CPK members where it was said that Phnom Penh had to be evacuated to find Lon Nol elements.⁹⁶⁴ This information was then disseminated from this meeting down to regimental and battalion levels.⁹⁶⁵

255.            Former low-level CPK cadres also state that they were informed in advance of the plan to remove the people from Phnom Penh. One CPK soldier was told that "Angkar" had a plan to evacuate the people to their birth districts.⁹⁶⁶ Another witness states that North Zone Division 1 Secretary Oeun made an order to his group regarding the movement of the population about three days before "liberation";¹⁶¹ whereas another former soldier also refers to being informed by [REDACTED] three days before the attack on Phnom Penh.⁹⁶⁸

256.            However, other low-level CPK cadres also state that there were no prior instructions.⁹⁶⁹ Furthermore, some soldiers were only told to commence moving the population after being in the city for several days.⁹⁷⁰

257.            CPK soldiers also received instructions from their superiors to move people from Phnom Penh through the military chain of command.⁹⁷¹ Division 310 (North Zone Division 1) 2^nd regiment (later 723^rd) received the order to evacuate people from the Commander named Chheang and also from the Commander Oeun. CPK soldiers also referred to the "upper- echelon" or "Angkar" as issuing the instruction to leave the city.⁹⁷⁴

258.           With respect to the involvement of the Charged Persons in the decision-making process, Nuon Chea was involved in the military planning of the CPK regarding the attack on Phnom Penh as witnessed by his participation in meetings with military leaders.⁹⁷⁵ In a statement to a journalist Nuon Chea stated that the decision to evacuate people from cities was made by "the Party Centre... At the time, individuals each helped a little to originate ideas, it was combining this with that"⁹¹⁶ Nuon Chea further stated that "we attacked and we took military bases inside. So by 17 April 75, liberation, the army went in and completely liberated Phnom Penh".⁹⁷⁷ Ieng Sary stated in a written statement in 1996 that the decision was made by Pol Pot without his knowledge⁹⁷⁸ although he states he attempted to dissuade Pol Pot, stating that "in 1974 I talked with Pol Pot that taking people out of Stung Treng and Kratie was easy because there weren't many people, but evacuating people out of Phnom Penh would not be so easy, everything must be thoroughly arranged because there were millions of people". ⁹⁷⁹ Ieng Sary has also stated that "all decisions were made by the committee of the four [including himself and Nuon Chea]. The evacuation of people from the cities did not involve my participation in the decision ... [upon return from Peking on 23 of April] I saw that the town had already been deserted of its inhabitants ".⁹⁸⁰ According to Ieng Sary, the authoritative decision to "evacuate" Phnom Penh was made in late March or early April 1975.⁹⁸¹ Khieu Samphan stated in a radio interview that he was against the population movement but that it had to be done for the good of the city dwellers,⁹⁸² and he stated in another interview that such steps were "thought and planned by the Standing Committee" .⁹⁸³ Ieng Thirith stated in an interview with Elizabeth Becker in 1980 that she did not know when the Phonm Penh evacuation decision was made because she was elsewhere at the

time.⁹⁸⁴

259. With respect to the presence of the Charged Persons in Phnom Penh, Nuon Chea left the former CPK headquarters on 17^th April and arrived at Phnom Penh on or around 20^th April.⁹⁸⁵ Ieng Sary stated that he arrived in Phnom Penh on 23 April 1975 from Peking,⁹⁸⁶ Ieng Thirith stated in an interview with Elizabeth Becker that she arrived in Phnom Penh around June, but that she knew of the evacuation before she arrived,⁹⁸⁷ and Khieu Samphan stated that he entered Phnom Penh 7-10 days after 17 April 1975.⁹⁸⁸

260. Based on the foregoing evidence, the decision to move people from Phnom Penh was made largely by Pol Pot in February 197 5 ⁹⁸⁹ with plans already disseminated to prepare the reception of persons from Phnom Penh that same month.⁹⁹⁰ Further involvement in the development of this plan by members of the Party Centre⁹⁹¹ also took place through meetings in late March or early April 1975,⁹⁹² including the participation of Nuon Chea, Khieu Samphan and Ieng Sary.⁹⁹³ Although Ieng Sary was out of the country at the time, there is evidence that he received communications of decisions and that he had already discussed the matter with Pol Pot in 1974.⁹⁹⁴ There were then meetings with lower level cadre to

disseminate this decision⁹⁹⁵ and some CPK troops were told in advance of the attack on Phnom Penh,⁹⁹⁶ however others were not informed until they received the order to remove people from the city.⁹⁹⁷

***

261. Six hundred and sixty four (664) civil parties were declared admissible in the context of the movement of the population from Phnom Penh (Phase 1)⁹⁹⁸, since the alleged crimes described in the application were considered as being more likely than not to be true, pursuant to Internal Rule 23 bis (4). These civil parties have provided sufficient elements tending to establish prima facie personal harm as a direct consequence of the crimes committed in the context of the movement of the population from Phnom Penh (Phase 1).