Former Khmer Rouge Leader Dies as Cambodia Tribunal Cases Continue
Nuon Chea, a former high-ranking official in the Khmer Rouge, died on August 4, 2019 while serving a life sentence imposed by the Extraordinary Chambers in the Courts of Cambodia (ECCC). [ECCC Press Release: Chea; HRW] In 2014, the ECCC convicted Chea, also known as “Brother No. 2,” of orchestrating the forced removal of approximately two million people and directing the torture and killing of more than 14,000 people at a Cambodian detention center. [HRW] His death has prompted renewed scrutiny of the search for justice in Cambodia and the role of the ECCC, a United Nations-backed tribunal tasked with prosecuting senior Khmer Rouge leaders and other individuals “most responsible” for the atrocities carried out under the regime, from 1975 to 1979. [HRW] The ECCC has initiated four principal cases, involving 10 defendants, since it began operating in 2006; in that time, it has completed the trials of three defendants, all of whom were convicted and sentenced to life imprisonment. See ECCC, Key Events; ECCC, Introduction to the ECCC. Civil society and others have criticized the ECCC for being long overdue in convictions and for addressing only a fraction of Khmer Rouge’s crimes, resulting in impunity for many other senior Khmer Rouge leaders and current government officials. [HRW] The tribunal faces serious obstacles and pushback, in particular from uncooperative government members and Cambodian Prime Minister and former Khmer Rouge official, Hun Sen, who does not require government members to produce evidence. [HRW]
Chea’s case is one of four cases before the ECCC, two of which have reached completion and two of which are ongoing. See ECCC, Case Load. A total of 10 individuals have been charged for committing various crimes against humanity, genocide, and breaches of the Geneva Conventions of 1949 during the Khmer Rouge rule. Three defendants (Sou Met, Ieng Sary, Ieng Thirith) died before their trials were completed; the charges against one defendant (Im Chaem) were dismissed for lack of personal jurisdiction; three defendants (Kaing Guek Eav, Nuon Chea, Khieu Samphan) have been convicted and sentenced to life imprisonment; and, three defendants (Yim Tith, Meas Muth, and Ao An) are currently facing possible trial at the ECCC, pending the resolution of a disagreement between the Cambodian and UN judges over whether they are subject to the ECCC’s jurisdiction.
The first case before the ECCC was against Kaing Guek Eav (alias Duch), former Chairman of the Khmer Rouge Tuol Sleng prison, also known as the S-21 security center, in Phnom Pneh. See ECCC, Case 001. He was indicted on August 8, 2008 and convicted by the ECCC Trial Chamber in 2010 after being found guilty of various crimes against humanity and grave breaches of the Geneva Conventions of 1949, which resulted in a 35-year prison sentence. See id. His trial before the Trial Chamber also included civil claims, resulting in reparations for the civil parties. See id. On appeal, the ECCC Supreme Court Chamber overturned his sentence, increasing it to life in prison after concluding that the Trial Chamber had failed to give proper weight to the crimes committed. See id. The Supreme Court Chamber’s decision also included moral and collective reparations to the victims, including compiling and publicly displaying any apologies and affirmations of responsibility Kaing Guek Eav made during the course of the proceedings. See id. During the trial and appeal hearings, 36,493 individuals attended to watch the proceedings. See id. Kaing Guek Eav began his prison term in 2012 at the ECCC detention center and was then transferred to Kandal Provincial Prison in June 2013, where he is serving the remainder of his term. See id.
Case 002/01 & 002/02
The second case before the ECCC concerns the indictment of four individuals in September of 2010: Nuon Chea, Khieu Samphan, Ieng Sary, and Ieng Thirith. See ECCC, Case 002. Chea and Samphan along with leng Sary and leng Thirith (a married couple) were charged with crimes against humanity, genocide, and breaches of the Geneva Conventions of 1949. See id. The case against leng Sary ended on March 14, 2013 when he died, and leng Thirith was deemed unfit to stand trial due to her dementia in November 2011. See id. In September 2012, she was released from detention following a medical report indicating that her condition was unlikely to improve. See id. She died in August 2015. See id.
The case against the remaining two accused, Nuon Chea and Khieu Samphan, was conducted in two phases as Case 002/01 and Case 002/02. See ECCC, Case 002. Case 002/01 began on September 15, 2010. See id. It addressed charges related to alleged crimes against humanity, mainly the forced movement of individuals in 1975, and resulted in guilty verdicts for both defendants. See id. In November 2016, the ECCC Supreme Court Chamber upheld their sentences to life in prison for crimes against humanity. See id. Case 002/02 began in October 2014, adding additional charges to those addressed in the first case. See id. These charges included genocide against the Cham, an ethnic Cambodian Muslim group, and Vietnamese people; additional crimes against humanity, including forced marriage and rape; and grave breaches of the Geneva Conventions. See id. The ECCC Trial Chamber found Chea and Samphan guilty of the additional crimes against humanity, and Chea guilty of genocide against the Cham. See id. Both were again sentenced to life in prison, but the ECCC ultimately combined their sentences from both cases into single life sentences. See id. Now that Chea is dead, only Samphan remains in detention.
Case 003 was opened in March 2015 at the request of an International Co-Investigating Judge (appointed by the UN) against two suspects, Meas Muth and Sou Met. See ECCC, Case 003. The investigation against Sou Met was dropped after he died in June 2015, while Meas Muth was charged in absentia (without being physically present) in March of the same year. See id. He appeared voluntarily before the ECCC in December 2015 and has been involved in proceedings since. See id. While some of the charges from when he was charged in absentia were later rescinded, he remains accused of committing genocide, crimes against humanity, and grave breaches of the Geneva Conventions of 1949. See ECCC, Statement of the International Co-Investigating Judge regarding Case 003, 14 December 2015. Since then, there have been questions regarding whether the ECCC has jurisdiction over Muth. In 2018, the two Co-Investigating Judges (one appointed by the UN and the other by Cambodia) issued differing opinions regarding the ECCC’s jurisdiction, the UN-appointed judge held that Muth was within the ECCC’s jurisdiction and the Cambodian-appointed judge held that the ECCC does not have personal jurisdiction. [ECCC Press Release: Muth] The decisions by the Co-Investigating Judges are subject to appeal to the ECCC’s Pre-Trial Chamber. [Just Security]
The ECCC’s final case covers investigations into three accused persons: Ao An, Im Chaem, and Yim Tith. See ECCC, Case Load. This case was split into three separate cases. See id. In February 2017, the Co-Investigating Judges dropped the charges against Im Chaem, case 004/01, finding that the ECCC did not have personal jurisdiction. See ECCC, Case 004/1. The UN-appointed prosecutor appealed the order to the Pre-Trial Chamber, but there were not enough votes at the Pre-Trial Chamber stage to overturn the Co-Investigating Judges’ order. See id. The proceedings concluded in 2018 with a dismissal of the case for lack of personal jurisdiction. See id.
Case 004/02 concerns Ao An, accused of genocide against the Cham. ECCC, Case 004/02. The Co-Investigating Judges issued separate orders in September 2018 reflecting differing conclusions with respect to personal jurisdiction. See id. The Cambodian-appointed Investigating Judge determined that the charges should be dropped because the ECCC lacks personal jurisdiction over Ao An given that, among other factors, the gravity of his crimes do not rise to the level intended for the tribunal. See id. The UN-appointed Co-Investigating Judge, on the other hand, determined that there are no jurisdictional issues and that the accused is “one of the most responsible persons for crimes committed,” and noted that available evidence is sufficient to indict him for genocide, crimes against humanity, and offences under Cambodian law. See id. This case is currently on appeal before the ECCC Pre-Trial Chamber, which held hearings in June 2019 and has yet to decide whether the case will be sent to trial. [ECCC Press Release: Ao An] The case against Yim Tith, Case 004, is ongoing as it remains to be seen whether the Co-Investigating Judges will decide whether or not to send the case to trial. See ECCC, Case Load.
Background on the ECCC
Informally referred to as the Khmer Rouge Tribunal or the Cambodia Tribunal, the ECCC was officially established in 2001 and began operating in 2006. ECCC, Introduction to the ECCC. The ECCC came about in the aftermath of the Khmer Rouge, a period from April 17, 1975 to January 6, 1979 in which at least 1.7 million people were killed. See id. The ECCC was established as a hybrid tribunal; it functions independently as a Cambodian court with international assistance and participation, and applies domestic law and international standards in its adjudication. See id. This court has jurisdiction only with respect to events that occurred within the period of April 17, 1975 and January 6, 1979, and 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.
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