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 (or, Indictment). The Closing Order of the Co-Investigating Judges forms the basic document from which all the parties (co-prosecutors, lead co-lawyers for all civil parties, defense lawyers) make 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 November 2011, the Trial Chamber is hearing the substantive (sic!) arguments over the criminal charges   (genocide against Buddhists, genocide against Vietnamese, genocide against Cham Muslims, crimes against humanity at the 200 prisons, mass crimes in countless killing fields, Eastern Zone purges, penal code of 1956, etc.) of only the Phase I Movement in April 1975.

 
 Available in Khmer, English and French. Contact the ECCC for a free copy.  

 

CLOSING ORDER (or, INDICTMENT)

 

of Co-Investigating Judges You Bunleng and Marcel Lemonde

15 September 2010

 

PART TWO:  APPLICABLE LAW 

 I.  ECCC JURISDICTION

1292.       During the investigation, several matters were raised regarding the applicable law relating to both the crimes and modes of criminal responsibility provided for in the ECCC Law.⁵¹⁴¹ On the basis of the elements set out below, the Co-Investigating Judges find that the crimes and modes of responsibility defined in this section of the Closing Order comply with the legality principle.

1293.       Pursuant to the ECCC Agreement, the Extraordinary Chambers were established by Law as a judicial body within the Cambodian Court system, for the purpose of bringing to trial senior leaders of Democratic Kampuchea and those who were most responsible for the crimes and serious violations of Cambodian penal law, international humanitarian law and custom, and international conventions recognized by Cambodia, that were committed during the period from 17 April 1975 to 6 January 1979.⁵¹⁴²

1294.       The question whether the ECCC are Cambodian or international "in nature" has no bearing on the ECCC's jurisdiction to prosecute such crimes,⁵¹⁴³ provided that the principle of nullum crimen sine lege is respected.⁵¹⁴⁴

1295.       Under this principle, as set out in Article 33(2) (new) of the ECCC Law, which references Article 15 of the International Covenant on Civil and Political Rights, no one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed.⁵¹⁴⁵ Accordingly, in order to be applied before the ECCC, where a crime was not included in the applicable national criminal legislation, it must be provided for in the ECCC Law, explicitly or implicitly and it must have existed under international law applicable in Cambodia at the relevant time.⁵¹⁴⁶ Relevant sources of international law include customary and conventional international law, as well as the general principles of law recognized by the community of nations.⁵¹⁴⁷ In addition, the law must have been sufficiently accessible at the relevant time and the persons under investigation must have been able to foresee that they could be held criminally liable.⁵¹⁴⁸ The appalling nature of a crime may be taken into consideration in this

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1296.       The principles set out above also apply to the modes of criminal responsibility.⁵¹⁵⁰

1304. As to whether international law is directly applicable in Cambodia, it must be recalled that Articles 1, 2 and 29 (new) of the ECCC Law set out as Cambodian law the violations of international law within its subject matter jurisdiction (genocide, crimes against humanity, grave breaches of the Geneva Conventions of 1949, the destruction of cultural property during armed conflict and crimes against internationally protected persons),⁵¹⁵¹ as well as the applicable modes of criminal responsibility (supplementing them with a sentencing regime in accordance with the principle of nulla poena sine lege).⁵¹⁵² By virtue of these provisions, the issue whether international law is directly applicable in Cambodian domestic law has no bearing on ECCC jurisdiction.⁵¹⁵³

1305. Furthermore, the international law provisions prohibiting genocide and grave breaches of the 1949 Geneva Conventions, which expressly provide for criminal liability,⁵¹⁵⁴ were legally binding on Cambodia as set out below,⁵¹⁵⁵ and thus can be considered to have been sufficiently accessible to the Charged Persons as members of Cambodia's governing authorities.

1306. With respect to crimes against humanity, their prohibition under customary law is considered to have been sufficiently accessible to the Charged Persons,⁵¹⁵⁶ with particular regard to the World War II trials held in Nuremberg and Tokyo.⁵¹⁵⁷

1307. The modes of criminal responsibility set out in the ECCC Law were partly incorporated in the 1956 Cambodian Penal Code as set out below,⁵¹⁵⁸ and as such these modes of liability were sufficiently accessible to the Charged Persons. The remaining modes of liability, namely joint criminal enterprise, instigation and superior responsibility, were also set out under international law through sources such as the trials following World War II and as such can be considered sufficiently accessible to the Charged Persons.⁵¹⁵⁹

1308. With this established, it remains that the principle of nullum crimen sine lege does not prevent the Co-Investigating Judges from interpreting the law governing their own jurisdiction,⁵¹⁶⁰ and in so doing, taking into account the case law of other international tribunals.⁵¹⁶¹ The actus reus and mens rea of each crime is further elaborated in the section of the Closing Order regarding Legal Findings.

1309. The applicable law set out herein, in accordance with Internal Rule 67(2), for the purposes of characterizing the facts of the case and determining the appropriate forms of responsibility, is preliminary in nature. It is without prejudice to the right of the parties to raise issues relating to ECCC jurisdiction in the form of preliminary objections before the Trial Chamber under Internal Rule 88(1)(a).

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