The Extraordinary Chambers in the Courts of Cambodia (ECCC) last week issued its first convictions against former senior Khmer Rouge leaders, finding Nuon Chea and Khieu Samphan guilty of crimes against humanity committed during the Khmer Rouge’s rule in the 1970s. [ECCC Press Release] The convictions, part of only the second set of charges to be resolved by the ECCC, come after nearly four years of litigation before the United Nations-assisted hybrid tribunal. In recent years, the court has been plagued by controversy and delays that at times seemed likely to outlast the few, elderly defendants brought before it. [IJRC]
The ECCC found Nuon Chea, age 88, and Khieu Samphan, age 83, guilty of participation in a “joint criminal enterprise” to implement the Khmer Rouge’s social revolution by forcible displacement of approximately two million people to rural areas without adequate provisions, resulting in mass death and starvation – constituting crimes against humanity, murder, extermination, political persecution, and other inhumane acts, including forced transfer, enforced disappearance, and attacks against human dignity. ECCC, Co-Prosecutors v. Nuon Chea & Khieu Samphan, Judgment, Case No 002/01, 7 August 2014, paras. 877, 1053, 1056, 1060. In addition, the court found the defendants responsible for the execution of at least 250 officials, carried out in furtherance of the Khmer Rouge policy of targeting former government agents, constituting crimes of murder and extermination. The tribunal sentenced the two men to life in prison, the maximum sentence permissible under Article 10 of the Agreement between the United National and the Royal Government of Cambodia Concerning the Prosecution under Cambodian Law of Crimes Committed During the Period of Democratic Kampuchea (ECCC Agreement). Nuon Chea and Khieu Samphan’s lawyers have said that they will appeal the convictions on the grounds that the two men were not aware of the extent of the killings. [Jurist]
The Khmer Rouge Regime (1975-1979)
Under the leadership of Pol Pot, the Khmer Rouge regime tried to create an agrarian society based on communist values, forcibly moving people from cities and towns to rural areas to work on rural co-operatives. The government also targeted and killed members of the elite, those affiliated with former governments, political opponents, and members of ethnic and religious minority groups. As many as two million Cambodians – a quarter of the country’s population – died under Khmer Rouge rule from 1975 to 1979, having been either killed as enemies of the State or overworked or starved to death. The Khmer Rouge killed thousands more during a jungle insurgency that lasted nearly two decades, ending in 1998. [BBC; Human Rights Watch]
Nuon Chea was Deputy Secretary of the Communist Party of Kampuchea (CPK) and Pol Pot’s chief deputy. He was second in command to Pol Pot and, with Pol Pot, exercised the ultimate decision-making power of the Party. [ECCC Press Release] Current Prime Minister Hun Sen granted Nuon Chea a pardon in 1998 as part of a peace deal, but he was arrested in 2007 following increased international pressure. [BBC: Profile]
Khieu Samphan was a member of Office 870, which oversaw the implementation of the decisions of the CPK Standing Committee. He was also a member of the CPK Central Committee. In April 1976, he was appointed president of the country, then called Democratic Kampuchea. [ECCC Press Release]
The Case of Co-Prosecutors v. Nuon Chea & Khieu Samphan
The case against Nuon Chea and Khieu Samphan was the second case to proceed before the ECCC. The proceedings began on November 21, 2010 with the two men being charged with committing genocide, war crimes, crimes against humanity, and murder. [Human Rights Watch; ECCC Press Release] Nuon Chea and Khieu Samphan dismissed the allegations against them as propaganda and lies. [BBC]
Due to the advanced age of the defendants, in 2013 the case was split into separate parts to accelerate the proceedings. [ECCC Press Release] The August 7 convictions relate to the human rights abuses committed during the forced evacuations of Phnom Penh and the executions of former Khmer Rouge officials at Tuol Po Chrey. A second set of proceedings against the two men is ongoing, and concerns alleged acts of genocide relating to mass executions. [Human Rights Watch; BBC]
During the trial, the ECCC heard the testimony of 92 individuals. The parties made their closing statements on October 31, 2013. Over 100,000 people attended the trial. [ECCC Press Release]
Convictions and Sentences
Nuon Chea’s involvement in the crimes was found to be “pivotal, extensive and significant,” and he was found guilty on all charges. He was found directly responsible and responsible as a superior for committing crimes against humanity of murder, extermination, political persecution, and other inhumane acts, including forced transfer, enforced disappearance, and attacks against human dignity. Prosecutor v. Nuon Chea & Khieu Samphan, paras. 877, 1056, 1060, 1079.
Khieu Samphan’s involvement in the crimes was found to be “extensive and substantial.” Co-Prosecutors v. Nuon Chea & Khieu Samphan, para. 1080. However, the charge that Khieu Samphan was responsible for the crimes committed in the course of the first phase of moving the population was dismissed. Nevertheless, he was found guilty of having committed the crimes against humanity of murder, extermination, political persecution, and other inhumane acts, including forced transfer, enforced disappearance, and attacks against human dignity. Co-Prosecutors v. Nuon Chea & Khieu Samphan, paras. 1022, 1053, 1056, 1060.
The Trial Chamber considered the gravity of the crimes in its determination of an appropriate sentence. Co-Prosecutors v. Nuon Chea & Khieu Samphan, para. 1068. In assessing the gravity of the crimes, the ECCC noted:
For the victims who died as a result of the crimes, the consequences were absolute. Many of those who survived suffered ongoing physical trauma, as well as mental and psychological disorders. The grave impact of these crimes on the victims and their relatives is both devastating and enduring.
Co-Prosecutors v. Nuon Chea & Khieu Samphan, para. 1077.
The maximum sentence the ECCC may issue for the crimes falling within its jurisdiction is life imprisonment. See ECCC Agreement, art. 10. The court sentenced both men to life imprisonment.
The ECCC also ordered reparations in favor of the civil parties in the case, including the creation of a National Remembrance Day project, the construction of a memorial to honor the victims of forced displacement, a therapy project and self-help groups, and publication of information on the cases in Cambodian school materials and a special booklet. [CJA]
Other Proceedings before the ECCC
Besides the trials of Nuon Chea and Khieu Samphan, only one other trial at the ECCC has reached completion. See ECCC, Co-Prosecutors v. Kaing Guek Eav, Judgment, Case No. 001, 26 July 2010. Kaing Guek Eav (Duch) was not part of the regime’s central leadership, but was the chairman of the Khmer Rouge S-21 Security Office in Phnom Penh, known as Tuol Sleng. Duch confessed to overseeing mass murders and torture at Tuol Sleng. [BBC] The ECCC convicted him of war crimes and crimes against humanity and sentenced him to life in prison in February 2012. [Human Rights Watch]
Two other former Khmer Rouge leaders have been charged but did not stand trial. Ieng Sary, a former Khmer Rouge Foreign Minister, died in March 2013. His wife, Ieng Thirith, a former Khmer Rouge social action minister, was ruled unfit for trial in 2011 due to her worsening dementia. [Human Rights Watch]
The ECCC is processing two other ongoing cases (Case Nos. 003 and 004) in which the names of the suspects have not been made public.
The Extraordinary Chambers in the Courts of Cambodia
Established in 2001, the ECCC is a special Cambodian court designed to try senior leaders of Democratic Kampuchea and those believed to be most responsible for grave violations of national and international law during the period from April 17, 1975 to January 6, 1979. See ECCC, Introduction. Its subject matter jurisdiction includes the crime of genocide, crimes against humanity, grave breaches of the 1949 Geneva Conventions, and other crimes defined in Chapter II of the Law on the Establishment of the ECCC.
The ECCC has received criticism for being long overdue on convictions and for addressing only a fraction of the Khmer Rouge’s crimes. [IJRC] The tribunal, however, faces serious obstacles. In particular, uncooperative government members and corruption have obstructed its proceedings. Hun Sen, Cambodia’s Prime Minister and former Khmer Rouge commander, does not require government members to produce evidence. Furthermore, corruption allegations have not been investigated. [Human Rights Watch] For some observers, though, the tribunal’s value outweighs its flaws. [IJRC]
The ECCC is considered an internationalized, or hybrid, tribunal because it applies both domestic and international law and is supported by international staff through the United Nations Assistance to the Khmer Rouge Trials (UNAKRT). The tribunal was established by an agreement between Cambodia and the United Nations.
Prosecution of High-Level Officials before Other International Criminal Tribunals
Other international and hybrid criminal tribunals have also held high-level government officials responsible for their role in the commission of crimes against humanity, genocide, war crimes, and grave breaches of international humanitarian law.
The International Criminal Court (ICC) has initiated cases against several high profile officials. In the first verdict rendered by the ICC, the Court convicted Thomas Lubanga Dyilo, founder and leader of the Union of Congolese Patriots (UPC), of conscripting and enlisting children under the age of 15 into the UPC and using them in the hostilities in the Democratic Republic of the Congo (DRC) from 2002 to 2003. Lubanga is currently serving a 14-year sentence in the Court’s Detention Center in The Hague.
The ICC has also issued indictments against other African heads of State. Prior to his death in 2011, the ICC issued an arrest warrant for Libya’s acting head of State, Muammar Gaddafi, in connection with alleged crimes against humanity, including murder and persecution, in the crackdown on civilian protesters in 2011. Warrants for arrest have also been issued for Omar Hassan Ahmad Al Bashir, the current President of Sudan, and other Sudanese officials, for crimes against humanity, war crimes, and genocide, in the context of the government’s attacks on civilians in Sudan between 2003 and 2008. The ICC has also sought the arrest of Kenyan officials, including current President Uhuru Muigai Kenyatta and Deputy President William Ruto, who are wanted on charges of crimes against humanity related to the 2007-2008 post-election violence.
The International Criminal Tribunal for the Former Yugoslavia (ICTY) has seen the prosecution of high-level officials for crimes committed during the Yugoslav wars, which lasted from 1991 to 1999. Most visible was the prosecution of Slobodan Milošević, former President of Serbia and President of the Former Republic of Yugoslavia (FRY). He was indicted for genocide, crimes against humanity, grave breaches of the 1949 Geneva Conventions, and war crimes. He died in 2006 while in detention and before the end of his trial.
The ICTY sentenced Milan Babić, former President of the Republic of Serbian Krajina (RSK), to 13 years’ imprisonment in 2005 for committing the crime against humanity of persecution. He committed suicide the following year.The ICTY case against Radovan Karadžić, former President of the Republika Srpska, is ongoing and includes charges of genocide, crimes against humanity, and war crimes. Ramush Haradinaj, Commander of the Kosovo Liberation Army (KLA), was acquitted of the charges brought against him in 2012.
The International Criminal Tribunal for Rwanda (ICTR) hears cases of genocide, crimes against humanity, violations of Article 3 common to the 1949 Geneva Conventions and Additional Protocol II to the 1949 Geneva Convention, in relation to the Rwandan genocide of 1994. One of the most prominent indictees is Félicien Kabuga, who is accused of funding the genocide. See ICTR, Prosecutor v. Félicien Kabuga, Amended Indictment, Case No. ICTR-98-44B-I, 1 October 2004. The ICTR has also prosecuted a number of Rwandan officials and top politicians, including two leaders of the political party in power during the genocide. See ICTR, Prosecutor v. Édouard Karemera and Matthieu Ngirumpatse, Judgment and Sentence, Case No. ICTR-98-44-T, 2 February 2012.
The Special Court for Sierra Leone (SCSL) was established to hear cases of violations of international humanitarian law and violations of the laws of Sierra Leone. In 2012, the SCSL convicted former Liberian President Charles Taylor of war crimes and crimes against humanity for his role in aiding and abetting atrocities committed by Sierra Leonean rebel fighters. [IJRC] See SCSL, Prosecutor v. Charles Ghankay Taylor, Judgment, Case No. SCSL-03-01-T, 18 May 2012.
For more information on the courts and areas of law discussed in this post, visit the IJRC Online Resource Hub pages on the ICC, ICTY, ICTR, internationalized criminal tribunals, international criminal law, and international humanitarian law.