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 

 

B. UNDERLYING OFFENCES CONSTITUTING CRIMES AGAINST HUMANITY

   

Rape

 

Rape in Security Centres and Cooperatives

1426. Based on the facts set out in the "Factual Findings - Crimes" section, it is clearly established that under the Democratic Kampuchea regime crimes against humanity of rape⁵²⁶⁹ were committed in diverse circumstances, notably in the security centres of Kraing Ta Chan, the North Zone security centre, Prey Damrei Srot, S-21, and Sang, as well as at the Tram Kok Cooperatives.

1427. At each of the sites listed above, the perpetrators purposefully committed physical invasions of a sexual nature against victims in coercive circumstances or otherwise without the consent of the victim, of which the perpetrators were aware, and the contextual elements of rape as a crime against humanity are linked.

1428. As set out in the "Factual Findings - Joint Criminal Enterprise" section, intimate relationships outside of marriage were considered to be against the collectivist approach of the CPK. Those people who were suspected of "immoral" behaviour, including rape, were categorized as "bad-elements" or "enemies", and were often either re-educated or killed. In this context, security centre cadre knew that rape was a crime for which they would be punished, for example at Kraing Ta Chan security centre. Security centre cadre who committed rape were punished when superiors became aware of the crime, as at Sang security centre. Further, CPK cadre were sometimes ordered by superiors to investigate instances of rape at security centres, for instance at Kraing Ta Chan security centre. Additionally, there is evidence that CPK cadres reported instances of rape to their superiors, describing the perpetrators as "enemies" or "traitors", as set out in the sections for Nuon Chea and Ieng Sary and the Tram Kok Cooperatives.

1429.       Based on these facts, the Co-Investigating Judges consider that the official CPK policy regarding rape was to prevent its occurrence and to punish the perpetrators. Despite the fact that this policy did not manage to prevent rape, it cannot be considered that rape was one of the crimes used by the CPK leaders to implement the common purpose. That is not the case, however, in the context of forced marriage, which is described below.

Rape in the Context of Forced Marriage

1430.       Based on the facts set out in the factual findings section "Marriage", the legal elements of the crime against humanity of rape have been established in the context of forced marriage.⁵²⁷⁰

1431.       As regards the actus reus, by imposing the consummation of forced marriages, the perpetrators committed a physical invasion of a sexual nature against a victim in coercive circumstances in which the consent of the victim was absent. With respect to the mens rea, the perpetrators intended the physical invasion of a sexual nature, with the knowledge that it occurred in coercive circumstances or otherwise without the consent of the victim. These acts of rape, by their nature or consequences, in particular through the targeting of the physical and physiological integrity of the victim, were part of the attack against the civilian population. The perpetrators knew that there was an attack on the civilian population and that their acts were part of it.

1432.       Notwithstanding Duch's recollection of a CPK cadre who was punished for asking his subordinates to spy on married couples to see if they were sleeping together, the evidence shows that this was not the rule on the contrary, consummation of marriage was regularly monitored by CPK cadre and couples who refused to consummate the marriage would be arrested. Based on these facts, the crime of rape in the context of forced marriage was one of the crimes used by the CPK leaders to implement the common purpose.

1433. The facts characterized as crimes against humanity in the form of rape can additionally be categorized as crimes against humanity of other inhumane acts in the form of sexual violence.⁵²⁷¹