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
Other Inhumane Acts Through Forced
Transfer
1439.
With respect to the
actus reus, victims endured great suffering, or serious mental or
physical suffering or injury or a serious attack on human dignity of similar
gravity to other crimes against humanity. The victims were forced to leave the
places where they lawfully resided without grounds permitted by international
law.
1440.
The population movement occurred by force since
the population was coerced to move by threats, physical violence, or by orders
which they felt would lead to serious danger if disobeyed.
1441.
There is no evidence that the population lacked
legal entitlement or authorization to reside in the places from which they were
moved.
1442.
In their requests for investigative action, the
lawyers for the Charged Persons submitted
justifications for the movement of the population out of Phnom Penh related to
the broader situation in Cambodia at the time (food and medical necessity,
security, etc).5275 The Co- Investigating Judges find that neither
the grounds brought forward by the Charged Persons nor
other grounds under international law permitted the transfer of population.
Without Grounds Permitted by
International Law
Security of the Population
1443.
With respect to phase
1, the movement of the entire population from Phnom Penh could not be
justified as being for the security of the population in response to an alleged
fear of a US bombing campaign. Whilst CPK soldiers cited such bombings as the
reason for the inhabitant's evacuation, the CPK leadership immediately
installed themselves in Phnom Penh following the evacuation, demonstrating that
they did not anticipate any such bombing. Furthermore, the USA bombing campaign
against Cambodia had ceased since 15 August 1973.
1444.
With respect to phases
2 and 3, no such justification exists on the evidence. Although certain
witnesses state that phase 3 was the result of
the conflict with Vietnam, it was nonetheless of a secondary role: the
necessity of protecting the security of the population was not of itself the
sole justification for this population movement.
Military Necessity
1445.
There is no evidence to demonstrate that the
movement of the population from Phnom Penh (phase 1)
was justified due to military necessary. Although CPK troops sending
inhabitants out of the city sometimes referred to the need to fight remaining
Lon Nol forces in the city, no large scale fighting or other military
operations took place in Phnom Penh after 17 April 1975. The same reasoning
applies to the alleged need to move the population to find and arrest CIA
agents and for the alleged clearing efforts regarding mines and unexploded
bombs.
1446.
With respect to phase
2, witnesses did not cite military necessity as a justification for the
movement of sections of the population, and there is no such justification on
the evidence.
1447.
With respect to phase
3, as explained above, several witnesses refer to removing people from
the combat zone with Vietnam. However, the intensity of the conflict did not
justify the extent of population movement.
Food Shortage
1448.
Even if this justification were found to be
substantiated under international law, there is no evidence to support the
argument that the movement of the population was necessary for addressing food
shortages.
1449.
With respect to the movement of the population
from Phnom Penh (phase 1), although food
production, supply and distribution was hindered by the conflict, the city
retained methods for receiving food supplies, be it by river, road or air.
Despite these factors, the evidence shows that the supposed justification of a
food shortage in Phnom Penh was not reflected in the steps taken by the CPK to
implement the population movement: the inhabitants of Phnom Penh were generally
not provided with food during the movement, there were limited or no food
provisions at the place of destination, other than the requirement that the
population produce their own food, despite the fact they were predominately
city dwellers not accustomed to agricultural methods. As to the argument that
the CPK regime had to refuse foreign aid to avoid interference into its
internal affairs, a legal justification cannot be invoked when it is due to
circumstances that were self-imposed.
1450.
With respect to phases
2 and 3, although witnesses cite food and the availability of more
fertile land as the reason given for the population movement, a comparison of
the situations at the place of departure and place of arrival does not
demonstrate that the conditions necessitated population movement in those
specific contexts.
Medical Care
1451.
Even if this justification were found to be
substantiated under international law, there is no evidence to support the
argument that the movement of the population was necessary for addressing a
lack of medical care. With respect to phase 1,
although medical supplies were reduced in Phnom Penh during the conflict, it
was established over several years leading up to and continuing after 17 April
1975 that the city remained better medically equipped than other locations in
the country.
1452.
With respect to phases
2 and 3, witness did not cite medical care as a justification for the
movement of sections of the population, and there is no such justification on
the evidence.
Creation of a Rural
Society
1463.
The policy to create a society based upon rural agricultural production as it
was implemented by the CPK does not constitute a ground under international law
permitting population transfer.
Element of "Return"
1464.
As regards the requirement of the "return" of the victims, even if
there had been a legal justification for the phases of movement in question,
all the facts indicates that virtually all of the population was only able to
return home after the fall of the regime.
1465.
As regards the mens rea, the perpetrators of
the three waves of forced movement were aware of the factual circumstances that
established the gravity of the act, especially the harm inflicted through the
violent and threatening measures by which the movement took place, the haste with
which is was implemented, the lack of organization and coordination to ensure
families were kept together and that the population was not generally provided
with food, shelter and protection. Such harm was inflicted during movement and
upon arrival.
1466.
The three waves of movement of the population, by their nature or consequences,
constituted or 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.
1467.
The common purpose included the commission of the crime against humanity of
other inhumane acts in the form of forced transfers. In effect, the
implementation of the objective of operating work sites and cooperatives was
facilitated by the subjugation of the population, by requiring that they move
close to the places where they were being sent to work by the CPK. A review of
the elements shows that the forced transfers assumed a systematic character and
constituted an integral part of the common purpose. The generalized character
of forced transfers throughout various regions of the country clearly indicates
that this was decided and coordinated by the highest leadership of Democratic
Kampuchea.
1468.
The main recurrent pattern is that no accommodation was made for vulnerable
persons in each wave of forced movement of the population: the people moved
consisted of all ages and both sexes. The underlying justification of the
population movement was that the persons moved were identified as actual or
potential transgressors of the objectives of the CPK common purpose. In case of phase 1, the inhabitants of Phnom Penh were
identified as "new" people, and for such people to remain in cities
was deemed to be incompatible with the common purpose objectives of
construction of socialism attaining the great leap forward through agrarian
development. People from cities were also deemed suspicious through a potential
association with the Lon Nol regime. With respect to
phase 2, "new" people were targeted as well as people related
to the Lon Nol regime, Chinese and Khmer Krom minorities and the Cham,
particularly after the rebellions of late 1975. Phase
3 victims were inhabitants of purged areas which the administration
selected as to their suspected allegiance to the purged officials or the
Vietnamese, for being suspected as bad elements or traitors, Sihanouk or Lon
Nol regime supporters, "new" people, monks, Cham, and people of
Chinese or Vietnamese descent. The extent to which the population movement was done
in accordance with achieving the common purpose is also evidenced by the fact
that during the CPK era, the population was not returned to their residences
from which they were moved.
1469.
All three phases were implemented by CPK soldiers, militia, or cadres through
the use of force. Orders to move were issued on short notice, not providing the
population time for proper travel preparations. During
phase 1, the population was expected to provide their own means of
transportation which for most people amounted to travelling by foot. In phases 2 and 3, the CPK regime generally provided
transport although significant hardship was inflicted on the population since
they were not provided with sufficient supplies and support, entailing
suffering and death among the population.
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