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 THREE:  LEGAL FINDINGS 

XI. AMNESTY, PARDON, NE BIS IN IDEM

1329. When ordering the provisional detention of Ieng Sary on 14 November 2007, the Co- Investigating Judges noted that the Royal Decree concerning him⁵²³⁶ does not prevent prosecution by the ECCC for crimes against humanity and grave breaches of the Geneva Conventions of 12 August 1949. They noted that the purported amnesty accorded to Ieng Sary by the Decree only covered prosecution under the 15 July 1994 Law⁵²³⁷ and that the effects of the Royal Pardon were limited to the annulment of the sentence handed down after the conviction of the "Pol Pot-Ieng Sary Clique" in 1979, without having any effect on the Judgement convicting him, as such.⁵²³⁸ The Co-Investigating Judges thus concluded that "neither the pardon nor the amnesty currently establish any obstacles to prosecution before the ECCC for the international crimes with which IENG Sary stands charged".⁵²³⁹ As to the application of the ne bis in idem principle, the Co-Investigating Judges noted: "there seems to be no impediment to the prosecution of IENG Sary for the acts covered by the 1979 Judgement under an international legal characterisation other than genocide" .⁵²⁴⁰

1330. In response to the appeal against this decision, the ECCC Pre-Trial Chamber noted that the part of the Royal Decree relating to the 1994 Law does not prevent conviction by the ECCC.⁵²⁴¹ As regards the Royal Pardon, the Chamber noted that "the validity ... is uncertain. The Pre-Trial Chamber finds that it is therefore not manifest or evident that this part of the

Royal Decree will prevent a conviction for genocide before the ECCC".⁵²⁴² Since being placed in provisional detention, the Defence for Ieng Sary has filed observations concerning this matter.⁵²⁴³

1331. The Co-Investigating Judges can only reaffirm their initial assessment. Accordingly, the amnesty has no effect, since it is limited to prosecution under the 15 July 1994 Law. Likewise, even if the Royal Pardon were applicable before the ECCC, it would have no effect on the proceedings as it only relates to the annulment of the sentence imposed by the 1979 Trial.

1332. At this stage of the proceedings, after a thorough analysis of the available material relating to the 1979 trial, in particular, the indictment, Decree-Law No.1 and the Judgement, the Co- Investigating Judges note, owing in particular to the serious shortcomings in the trial proceedings having regard to fair trial principles, that a great deal still remains unclear as to the crimes charged in 1979, the legal elements of the offence entitled "genocide" and the modes of responsibility underpinning the conviction of the "Pol Pot-Ieng Sary Clique". Furthermore, it is noteworthy that in the Decision on the Defence Preliminary Objection handed down on 26 July 2010 in the Duch case, the Trial Chamber judges emphasised that there was "a severely weakened and compromised judicial system" between 1979 and 199 3 ⁵²⁴⁴ and, in fact, that "from 1979 until 1982 ... the judicial system did not function at all". ⁵²⁴⁵ Therefore, it cannot be argued that the ongoing judicial proceedings bear any similarity with the 1979 prosecution.

1333. In light of all the foregoing, even assuming that the crimes prosecuted in 1979 overlap, in whole or in part, with those with which Ieng Sary now stands charged, the Co-Investigating Judges hold the view that the question as to whether the 1979 judgement still applies and prevents further prosecution of Ieng Sary for genocide warrants a public adversarial hearing before the Trial Chamber, this being the only way for the Charged Person, the Co-Prosecutors and the Civil Parties to each make their case in a comprehensive fashion.

1334. Accordingly, Ieng Sary may be sent for trial in relation to all the charges with which he currently stands charged.