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 

 XIII. CRIMES AGAINST HUMANITY  

A. "CHAPEAU"ELEMENTS

Widespread and Systematic

1347.       The attack was planned and gradually prevailed in the areas that came under CPK control from 1972-73, extending to the whole of Cambodia upon the CPK taking power on 17 April 1975 and continuing, at least, for the entire period falling within the ratione temporis jurisdiction of the ECCC.

1348.       The CPK employed five main categories of means to implement its revolutionary project: repeated movements of the population from towns and cities to rural areas, as well as from one rural area to another; establishment and operation of cooperatives and worksites; reeducation of "bad elements" and "enemies", both inside and outside the Party ranks; the targeting of specific groups, in particular the Cham, Vietnamese, Buddhists and former officials of the Khmer Republic, including both civil servants and former military personnel and their families; as well as regulation of marriage.

1349.       Repeated movements of the civilian population throughout the country, especially during the three main phases of which the Co-Investigating Judges were seized, targeted a very large number of civilians, who were subjected to great physical and mental suffering and whose dignity as human beings was violated in the course of these movements, which were conducted by way of compulsion, threat or physical violence.

1350.       The widespread imposition of collective living conditions, and forced labour in cooperatives, "mobile brigades" and worksites, involved or led to the systematic violation of a large number of the fundamental rights of Cambodians: the obligation to live in cooperatives led to the expropriation of all property; victims were forced to perform hard labour in degrading conditions of hygiene, nutrition, health and accommodation, without being allowed to reap the fruit of their labours. As part of the attempt to transform the population, forced marriages were organized, because life and morality had become public matters controlled by "organizational methods" involving compulsion.

1351.       At the same time, the CPK attempted to eradicate all potential sources of dissent by eliminating any person suspected of being, or likely to become, hostile to the Party and its common purpose. The obligation to live in cooperatives facilitated the identification of suspects, and a surveillance programme by militia members ("Chhlop") was instituted at all levels of the regime. This policy led to widespread violence.

1352.       Whilst the existence of an ideological project cannot, as such, be considered to be a legal element of crimes against humanity, the implementation of the plan adopted, by criminal means in the case in point by the CPK authorities demonstrates the widespread and systematic character of the attack. In particular, the replacement of the economic, administrative and political institutions of Cambodia by the revolutionary power structure, as codified, inter alia, in the Constitution of Democratic Kampuchea and the Statutes of the CPK, enabled the Party to bring all State resources into play in imposing its plan on the entire population under its control, relying for this purpose on the Party's centralized hierarchy, the administration at all levels, and on the security and armed forces.⁵²⁵⁵

1353.       The basic principles governing criminal justice were abandoned by the CPK in favour of a highly centralized system of political control, which was geared towards identifying throughout society potentially subversive elements, neutralising them before they could endanger the revolution, by either detaining them for reeducation or killing them outright, as well as those alleged to have already acted against the revolution. Predicated as it was on the unrealistic quest for "zero risk", this policy would inevitably lead to excesses. The process of identifying enemies, in which all levels of the CPK played a role, on the basis of an unverifiable determination of dangerousness largely drawn from confessions extracted under torture, fed on itself and turned against its masters. The criteria used to identify potential enemies within the population changed and extended in scope during the period under judicial investigation on account of failures in economic development and the spread of international armed conflict between Cambodia and Vietnam. The search for "enemies" was conducted by all the units of the CPK in charge of security, but in particular by a special security force, the "Santebal", which was controlled by the CPK, with no provision being made for challenging the legality of arrests, detention or punishment.⁵²⁵⁶

1354.       Far from being the result of an accidental replication of instances of isolated but similar conduct, the attack was designed and coordinated at the Party Centre level on the basis of directives issued by the leaders, who directly controlled its implementation. Territorial units were allowed to communicate only with their direct superiors and with the Centre. Cadre "guilty" of local initiatives counter to the party line were also considered to be enemies.⁵²⁵⁷

1360. The systematic nature of the attack was manifested in practice by generalised employment of the same means of implementation, implying a high degree of central planning. The principal mode of operation consisted of standardized methods of applying violence, dictated from above and reported on from below, carried out on a grand scale (such as the torture system set up in all security centres in order to identify and smash "enemies"), and relying on all State institutions of Democratic Kampuchea. This system resulted in millions of victims, including 1.7 to 2.2 million deaths, of which some 800,000 were violent.⁵²⁵⁸ Beyond the direct victims, enforced disappearances, carried out systematically by the authorities in order to conceal arrests, caused suffering amongst those who witnessed them as a result of the climate of fear and uncertainty that they engendered.

1361. In light of the elements set out above, the attack against the civilian population was manifestly widespread and systematic, bearing in mind that one of these criteria alone is legally sufficient to elevate the acts to the level of crimes against humanity.