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 

 

I. GRAVE BREACHES OF THE GENEVA CONVENTIONS 1949

1479.       In light of the facts set out in the "Factual Findings - Crimes" section of this Closing Order, the constitutive elements of the crime of grave breaches of the Geneva Conventions of 1949, contrary to Article 6 of the ECCC law, have been established at the S-21 security centre, at the Au Kanseng security centre and during incursions into Vietnam by the Revolutionary Army of Kampuchea.

A. "CHAPEAU"ELEMENTS

 Existence of an International Armed Conflict

1480.       As has been stated in the section on "Armed Conflict", it is established that at all times between April 1975 and at least 7 January 1979 a state of armed conflict existed between Democratic Kampuchea and the Socialist Republic of Vietnam; the armed conflict being international in character.⁵²⁷⁷

Protected Persons

1481.       The Co-Investigating Judges consider the following persons, during the international conflict between the two States, to be categorised as "protected persons":

a.       Members of the armed forces of the Socialist Republic of Vietnam, who had fallen into the power of the forces of Democratic Kampuchea (the Revolutionary Army of Kampuchea); protected as prisoners of war ("POWs") by article 4 of Geneva Convention III.

b.       Civilians who were nationals of the Socialist Republic of Vietnam, who had fallen into the hands of the forces of Democratic Kampuchea (the Revolutionary Army of Kampuchea); protected as civilians by article 4 of Geneva Convention IV.

1482.       In addition, whilst making no determination as to whether the formulation known as the "allegiance test"⁵²⁷⁸ was applicable law at the time of the international armed conflict, the Co- Investigating Judges consider that the concept would have been insufficiently accessible and foreseeable to any of the Charged Persons, if applied, to satisfy nullum crimen sine lege. This is especially so as the concept had not been formally stated in any jurisprudence until the late 1990s, in the context of internecine armed conflicts occurring pursuant to the dissolution of a pre-existing state and in the context of the formulation of new states; and not in the context of conflicts between states which were the primary subject of the Geneva Conventions at the time of their drafting.