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

In light of the HISTORIC (!) start of MOST COMPLEX (sic!) trial hearings beginning on 27 June 2011 and again ANOTHER HISTORIC (!) START of this same MOST COMPLEX (sic!) on 21 Nov. 2011 of Case 002 against the surviving Khmer Rouge senior leaders Nuon Chea, Khieu Samphan, Ieng Sary and Ieng Thirith, KI Media is 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 (sic!) arguments over the criminal charges (e.g. genocide, crimes against humanity, penal code of 1956 - sic!).  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

 

D. TREATMENT OF SPECIFIC GROUPS

 

 Treatment of theVietnamese

 

 

Crimes committed by the Revolutionary Army of Kampuchea on Vietnamese territory

830.           The Co-Investigating Judges are seized of crimes allegedly committed against Vietnamese civilians during incursions into the territory of Vietnam by the RAK. ³⁵²⁵

831.           During the course of the investigation, the Co-Investigating Judges issued an International Rogatory Letter to the Government of Vietnam, requesting Vietnam's cooperation and assistance in their judicial investigation regarding this country.³⁵²⁶ Such Rogatory Letter was delivered to the Embassy of Vietnam in Phnom Penh on 19 June 2008. A significant number of the documents requested in this International Rogatory Letter related to the international armed conflict with Vietnam and/or RAK incursions into Vietnamese territory as well as CPK military matters.³⁵²⁷

832.           The Co-Investigating Judges received no formal response from the Vietnamese authorities. Six months after the delivery of the request for assistance, a follow-up letter was sent to the Embassy of Vietnam but again no formal response was received.³⁵²⁸ During this time, an investigator of the Office of the Co-Investigating Judges mandated to contact the Vietnamese authorities liaised a number of times (via telephone and in person) with a representative of the Embassy with a view to receiving the requested documents. However, such contacts did not result in any formal response. Full details of the extent of the communications are particularized in the Rogatory Letter Completion Report.³⁵²⁹

833.           In the absence of any formal response from the Embassy of Vietnam to these repeated communications, the Co-Investigating Judges concluded that the likelihood of the Vietnamese authorities cooperating and providing access to potential crime sites within the territory of Vietnam was low. It was thus considered futile to issue new international rogatory letters. As such, any investigation into alleged crimes committed on the territory of Vietnam was necessarily limited as it has not been possible during the investigation to visit the sites of any alleged attacks nor interview any witnesses from the local areas.

834.           Nevertheless, the Co-Investigating Judges have conducted an investigation within these limitations and have determined that it appears that the RAK carried out incursions into Vietnamese territory in mid-to-late 1977.³⁵³⁰ During the course of these incursions, the RAK killed civilians, burned houses and destroyed property. The CPK Centre received regular military telegrams from RAK commanders from the various battle fronts reporting on the progress of military operations and seeking instructions. Furthermore, the Vietnamese government petitioned the ambassador of Democratic Kampuchea to Vietnam, Heng Sokh- Kheng alias Chhean regarding crimes being committed by RAK forces against Vietnamese civilians in a number of locations. Chhean then reported these discussions to the CPK Centre and requested instructions. The developments below demonstrate that civilians were killed in Ha Tien in Kien Giang Province, An Giang Province and in Phsar Kradas and other locations in Tay Ninh Province.

835.           A telegram dated 4 August 1977, copied to Nuon Chea and Ieng Sary reports that "the Kampuchean army has committed mass killings of 1,000 ordinary Vietnamese people at Ha Tien in Kien Giang province" ²⁵²¹ A telegram dated 15 June 1977 also copied to Nuon Chea and Ieng Sary refers to an attack by RAK forces on Ha Tien, "slaughtering and torching of residences, bringing about enormous causalities". The telegram further states that "the fact that the Kampuchean army committed such transgressions, slaughtering, burning and smashing, is not something they are raising according to reports, but something for which there can be clear and irrefutable evidence" ²⁵²²

 

836.           Another telegram states that "our troops had invaded into Tay Ninh during September 1977, massacring and killing more than 1,000 people".³⁵³³ During proceedings of Case File 001 before the Trial Chamber, Nayan Chanda gave expert witness testimony about personally witnessing the aftermath of RAK attacks in Tay Ninh and Ha Tien and seeing dead civilians, including women and children. ³⁵³⁴

837.           Additionally, the killing of Vietnamese people in An Giang Province by RAK mortars was reported to the Centre, including Nuon Chea and Ieng Sary.³⁵³⁵ In addition, Civil Parties provide information on RAK attacks in An Giang Province.³⁵³⁶ Finally, one former RAK combatant gives evidence that while fighting in Phsar Kradas in Tay Ninh Province in early 1977, he was given orders to shoot and kill Vietnamese right away "even if they raised their arms" adding "as for the Vietnamese soldiers and people, hundreds were probably

killed".³⁵³⁷

838.           There is evidence that RAK burned houses and destroyed property during incursions into Vietnamese territory.³⁵³⁸ Attacks were reported to the CPK Centre through military telegrams from RAK commanders from the various battle fronts.³⁵³⁹ One former RAK combatant describes in an interview with investigators an attack in Tay Ninh province in mid-1978. He states that his group of 200 combatants was ordered to enter the village and "destroy and burn up everything" and that in response to this order he "threw the grenades, burned houses, military hospitals, ammunition storages and sawmills".³⁵⁴⁰ Another former RAK combatant states that he was also given orders to "burn and destroy the houses and building, both civilians and military" while fighting in Phsar Kradas. ³⁵⁴¹ Civilians were also killed in the course of the destruction of property.³⁵⁴²

***

839.            Sixty eight (68) civil parties were declared admissible in the context of the "treatment of the Vietnamese"³⁵⁴³ 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 "treatment of the Vietnamese".