Introduction
On September 22, 2022, the Supreme Court Chamber (SCC) of the Extraordinary Chambers in the Courts of Cambodia (ECCC) pronounced its judgment against Khieu Samphan, a key figure in the Khmer Rouge regime that ruled the country in the late 1970s.Footnote 1 The appellate SCC upheld the Trial Chamber's conviction of Khieu Samphan for war crimes and genocide, as well as all but two convictions against him for crimes against humanity. The SCC also found him responsible for additional crimes and affirmed his life sentence. On December 23, 2022, the court published the full written judgment, bringing to a close Case 002/02, the third and final trial at the ECCC.
Background
The ECCC was a UN-backed hybrid court with jurisdiction to try “senior leaders” and others deemed “most responsible” for genocide, war crimes, crimes against humanity, and selected domestic crimes committed during the rule of the Communist Party of Kampuchea (CPK) between April 17, 1975 and January 6, 1979.Footnote 2 Its first case, Case 001, featured the trial and conviction of Duch, former head of the infamous S-21 security center at Tuol Sleng. Its second case, Case 002, concerned a broad range of alleged crimes orchestrated by senior Khmer Rouge leaders. It began in 2010, when Khieu Samphan, former Deputy CPK Chairman Nuon Chea, former Foreign Minister Ieng Sary, and former Minister of Social Affairs Ieng Thirith were indicted on charges of genocide, war crimes, and crimes against humanity.
Given Case 002's scale and complexity, the ECCC's Trial Chamber decided in 2011 to sever the charges into multiple smaller trials. Case 002/01 focused on crimes against humanity linked to forced population movement, including the April 1975 evacuation of Phnom Penh. Ieng Thirith was ruled unfit to stand trial and Ieng Sary died before the trial concluded, but Khieu Samphan and Nuon Chea were convicted in 2014 of crimes against humanity and sentenced to life in prison—verdicts upheld on appeal.
Case 002/02 addressed a wider array of charges, including genocide against Cham Muslims and ethnic Vietnamese; forced marriages and rape; internal party purges; and crimes committed at key security centers and worksites throughout the country. After a lengthy trial, the Trial Chamber found Khieu Samphan and Nuon Chea guilty in 2018 of myriad crimes against humanity, genocide against the Vietnamese population, and grave breaches of the Geneva Conventions.Footnote 3 It sentenced both men to life in prison, merging the sentences in Case 002/01 and 002/02.Footnote 4
Both men appealed, although Nuon Chea died in 2019 before his appeal could be adjudicated. In a voluminous appeal, Khieu Samphan alleged that the Trial Chamber committed over 1,800 errors related to the fairness and scope of the proceedings, rulings on substantive crimes and individual criminal responsibility, and pronouncement of the judgment. The Co-Prosecutors filed a much narrower appeal, challenging the Trial Chamber's ruling that the Khmer Rouge practice of compelling sexual intercourse within forced marriages constituted a crime against humanity only against female victims.
The Supreme Court Chamber's Decision
The SCC rejected the vast majority of Khieu Samphan's challenges, beginning with his claims that the Trial Chamber had violated his rights by issuing an oral summary before the full written judgment, exhibiting bias, and erring in the scope of the judicial investigation and trial.Footnote 5 The SCC then considered his appeals regarding the crimes of which he was convicted, issuing noteworthy rulings with regard to several crimes.
First, the SCC rejected Khieu Samphan's argument that the Trial Chamber erred by applying a standard of dolus eventualis when adjudicating the crime against humanity of murder, finding that such a standard was part of customary law by 1975.Footnote 6 Nevertheless, the SCC overturned his convictions for two such murders at Phnom Kraol Security Centre, as the evidence hinged on statements of deceased witnesses whom Khieu Samphan could not confront.Footnote 7
Second, the SCC rejected Khieu Samphan's claim that under customary international law in 1975, the crime against humanity of persecution required an intent to remove the persecuted persons from their home communities or from society as a whole.Footnote 8 The SCC also dismissed his claim that indiscriminate Khmer Rouge practices—such as banning prayer or forcing Cham Muslims to eat pork—did not amount to “discrimination in fact,” ruling that such a finding “can be established form the consequences or impact of a particular group.”Footnote 9 The SCC upheld most of the Trial Chamber's findings on political persecution, religious persecution of Buddhist monks, and racial persecution of Vietnamese. It did reverse his conviction for the crime against humanity of political persecution at one worksite, however, ruling that the Trial Chamber had erred in finding that he had violated a fundamental right to equal treatment under international law as of 1975–79.Footnote 10
Third, the SCC dismissed Khieu Samphan's claims that the Trial Chamber had violated the principle of legality when finding that it was foreseeable and accessible that other inhumane acts were punishable as crimes against humanity by 1975. It also rejected his assertions that an act must violate a specific provision in a human rights instrument to be punishable, reasoning that “the purpose of the crime of other inhumane acts is to enable the prosecution of grave conduct which is not already criminalized as distinct crimes against humanity at the time in question.”Footnote 11
Fourth, the SCC upheld the Trial Chamber's finding that the CPK implemented deliberate policies of forced marriage and forced intercourse within marriage, dismissing Khieu Samphan's challenges. However, it granted the Co-Prosecutors' sole appeal and overturned the Trial Chamber's ruling that forced intercourse only constituted crimes against humanity of other inhumane acts in relation to female victims. The SCC ruled that the Trial Chamber had erred by focusing on the traditional elements of the crime of rape, including penetration, and ruled that “forced intercourse in the context of forced marriage” itself amounted to a crime against humanity as of 1975–79, subjecting both males and female victims to “serious mental or physical suffering or injury.” The SCC thus entered additional convictions against Khieu Samphan pertaining to male victims.Footnote 12
Fifth, the SCC rejected Khieu Samphan's multiple challenges to his genocide conviction, upholding the Trial Chamber's decision based on its assessment of his role in a deliberate CPK effort to destroy the Vietnamese in whole or in part.Footnote 13
After examining Khieu Samphan's challenges on the underlying crimes, the SCC dismissed almost all of his claims regarding his roles and responsibilities in the Khmer Rouge regime. It upheld the Trial Chamber's findings that, among other things, he was President of the State Presidium, supported CPK policies in speeches and through diplomacy, was actively involved in the CPK Central Committee and aware of its key decisions, frequently attended CPK Standing Committee meetings, and was part of a central bureaucratic node called “Office 870,” giving him access to myriad CPK policy communications.Footnote 14
The SCC also upheld the Trial Chamber's finding that Khieu Samphan had participated in a joint criminal enterprise (JCE). It rejected his claim that the CPK's pursuit of a socialist revolution was simply a political plan, concluding that his assertion “utterly ignore[d] the reality that crimes were committed on a massive scale throughout the implementation process.”Footnote 15 The SCC concluded that Khieu Samphan had contributed to the common criminal purpose, noting that “contribution to a JCE may take many forms,” including activities that were “on their face, directed at implementing a socialist revolution as opposed to the commission of specific crimes.”Footnote 16 Dismissing Khieu Samphan's claim that he neither knew of crimes nor intended them, the SCC found that the Trial Chamber had correctly inferred his knowledge from his position and conduct and had reached “the only reasonable inference that KHIEU Samphan intended the crimes encompassed by the common purpose.”Footnote 17
Moreover, the SCC found Khieu Samphan guilty of additional crimes, concluding proprio motu that the Trial Chamber had erred in requiring evidence of direct intent for a JCE conviction. The SCC ruled that dolus eventualis also suffices, noting its prior ruling that “the common purpose may encompass crimes in which the commission is neither desired nor certain” when an accused person was aware that the crime was a possible consequence of implementing the plan but proceeded anyway.Footnote 18 On this basis, the SCC reversed the Trial Chamber's convictions of Khieu Samphan for aiding and abetting the crime against humanity of murder at several worksites and security centers, instead convicting him personally via JCE of the crime against humanity of murder for the acts in question.Footnote 19
Lastly, the SCC affirmed Khieu Samphan's life sentence and the Trial Chamber's decision to merge it with the sentence imposed in Case 002/01, concluding that while the Trial Chamber had committed errors, they did not “render the ultimate sentence inappropriate or unfair in any way.”Footnote 20
Discussion
The Case 002/02 appeal judgment was significant in part for its jurisprudence. Among other conclusions, the SCC ruled that by 1975, international criminal law encompassed a relatively broad principle of JCE liability and that a relatively expansive set of acts could constitute “other inhumane acts” for purposes of crimes against humanity. The judgment thus helped articulate the status of international criminal law in the decades before the advent of the ad hoc tribunals for the former Yugoslavia and Rwanda. The judgment contributed important jurisprudence on forced sexual intercourse as well, which was notable given the difficulty of prosecuting cases of sexual violence against men and boys at international criminal tribunals.Footnote 21 In terms of process, the SCC replicated the Trial Chamber's practice of issuing of non-authoritative summary pronouncements prior to publishing a massive printed judgment—a step other tribunals may emulate.
The appeal judgment's significance also lies in its status as the ECCC's closing chapter. Cambodians generally welcomed the judgment, which included the first and only final conviction for genocide at the ECCC, but some observers found the ECCC's reliance on the traditional legal definition of genocide, including crimes against Vietnamese and Chams but not the majority population, at odds with the broader “social and historical understandings” of genocide in Cambodia.Footnote 22 Others have long argued that the Case 002 judgments were “too little, too late,”Footnote 23 coming long after many key Khmer Rouge suspects and survivors had passed. Khieu Samphan is now 92 years of age.
Critics also note that local media coverage of the Case 002/02 judgment generally downplayed other challenges at the ECCC, including the impasse over Cases 003 and 004, which concerned alleged crimes by Khmer Rouge military leaders and key subnational officials.Footnote 24 Prime Minister Hun Sen opposed those cases publicly, and resistance from Cambodian officials at the ECCC helped prevent Cases 003 and 004 from going to trial. The Case 002/02 appeal judgment thus brought an end to the lengthy and costly ECCC proceedings, leaving the court with just three convictions and a mixed legacy.
Supreme Court Chamber
Chambre de la Cour suprême
Case File/Dossier No. 002/19-09-2007-ECCC/SC
_________________________________________________________________
APPEAL JUDGMENT
_________________________________________________________________
TABLE OF CONTENTS
I. INTRODUCTION....................[1]
A. Factual Background....................[1]
B. Procedural History....................[3]
C. KHIEU Samphân's Appeal....................[7]
D. The Co-Prosecutors' Appeal....................[7]
II. STANDARD OF APPELLATE REVIEW....................[8]
A. Introduction....................[8]
B. Alleged Errors of Law....................[9]
C. Alleged Errors of Fact....................[10]
D. Challenges to Interlocutory Decisions....................[12]
E. Issues of General Significance....................[13]
F. Standard for Summary Dismissal....................[13]
G. Conclusion....................[15]
III. PRELIMINARY MATTERS....................[15]
A. Structure of the Appeal Briefs....................[15]
B. The Value of Precedent at the ECCC....................[17]
IV. ALLEGED ERROR IN THE ISSUANCE AND PRONOUNCEMENT OF THE JUDGMENT....................[20]
V. ALLEGED ERRORS IN THE FAIRNESS OF THE PROCEEDINGS....................[31]
A. The Principle of Legality....................[33]
B. Recharacterisation of Charges....................[37]
1. Alleged Introduction of a New Constitutive Element....................[39]
2. Alleged Lack of Notice....................[41]
3. Conclusion....................[43]
C. Alleged Partiality of the Trial Chamber....................[43]
1. Alleged Failure to Address Allegations of Bias....................[43]
2. Alleged Importation of Findings from Case 002/01....................[44]
3. Alleged Importation of Evidence from Case 002/01....................[48]
a. CHHAOM Sé....................[53]
b. EM Oeun....................[56]
c. Policy against Buddhists....................[58]
4. Other Findings Allegedly Demonstrating Bias....................[63]
D. Alleged Errors in Evidentiary Decisions Made During Trial....................[65]
1. Decisions on Witness Appearances....................[65]
2. Disclosure of Case 003 and 004 Material....................[75]
a. Alleged Legal Errors....................[79]
b. Alleged Violations of Fair Trial Rights....................[84]
3. Admission of Evidence During Trial....................[88]
a. Admission of Evidence During Trial under Rule 87(4)....................[90]
b. Admission of Case 003 and 004 Materials....................[91]
c. Admission of Written Statements of “Low Probative Value and Relevance” and “Complete Books”....................[94]
d. Allegations of Prejudice: “Undue Delay”....................[97]
4. Admission of Documents Originating from Christopher GOSCHA....................[99]
a. The Trial Chamber's Steps to Obtain the GOSCHA Documents....................[103]
b. Challenges to the Trial Chamber's Admission of GOSCHA Documents....................[106]
c. Challenges to the Trial Chamber's Use of the GOSCHA Documents....................[108]
5. Admission of the S-21 Logbook....................[111]
6. Failure to Recall Stephen HEDER, François PONCHAUD and Philip SHORT....................[114]
a. Stephen HEDER and François PONCHAUD....................[117]
b. Philip SHORT....................[123]
7. Failure to Reopen Trial Proceedings to Admit Evidence of Two Witnesses....................[127]
E. Alleged Errors in the Trial Chamber's Evidentiary Approach....................[130]
1. Challenges to Evidentiary Standards....................[130]
a. Burden and Standard of Proof....................[130]
b. Deductive Reasoning, Extrapolations and Generalisations....................[132]
c. Alleged Errors in Relation to Exculpatory Evidence....................[141]
d. Number of Evidentiary Items and Probative Value....................[149]
e. Corroboration....................[152]
f. Inconsistencies....................[154]
g. Cultural Bias....................[157]
h. Hearsay....................[160]
2. Assessment of Documentary Evidence....................[163]
a. Assessment of Contemporaneous Documentary Evidence....................[164]
i. CPK Statutes....................[165]
ii. Standing Committee Meeting Minutes....................[166]
b. KHIEU Samphân's Interviews, Statements and Publications....................[169]
i. KHIEU Samphân's Interviews....................[169]
ii. KHIEU Samphân's Statements and Publications....................[171]
c. Out-of-Court Statements....................[172]
d. Propaganda....................[174]
e. Evidence Obtained through Torture....................[176]
f. Witness and Civil Party Evidence....................[181]
i. Written Statements whose Authors Could not Testify....................[181]
ii. Assessment of Civil Party Applicants' Statements....................[189]
g. Documents Benefitting from Presumption....................[191]
h. Expert Evidence....................[193]
VI. ALLEGED ERRORS IN THE SCOPE OF THE JUDICIAL INVESTIGATION AND TRIAL....................[194]
A. The Scope of the Judicial Investigation....................[194]
1. The Law....................[194]
a. Alleged Error in Characterisation of Requests Relating to the Scope of the Investigation as Preliminary Objections....................[195]
b. Alleged Expediency in Characterising Requests as Preliminary Objections....................[203]
c. Alleged Miscarriage of Justice....................[207]
2. Challenges to the Jurisdiction of the Trial Chamber to Adjudicate Certain Facts and the Related Findings....................[211]
a. Legal Standard for Determining the Merits of a Case....................[213]
b. Challenges to the Trial Chamber's Jurisdiction to Adjudicate Certain Facts and the Related Findings....................[214]
B. Insufficiently Supported Charges in the Closing Order....................[219]
1. Deaths from Starvation in the Tram Kak Cooperatives....................[221]
2. “Discriminatory Treatment” Regarding New People in the Tram Kak Cooperatives....................[223]
3. “Discriminatory Treatment” Regarding Former Khmer Republic Members in the Tram Kak Cooperatives....................[224]
C. Lack of Legally Qualified Material Facts Charged in Case 002/02....................[227]
1. Alleged Error in the Legal Standard Regarding Notice of Charges....................[227]
2. Alleged Errors Related to Charged Crime Sites....................[230]
a. Tram Kak Cooperatives....................[232]
b. Trapeang Thma Dam Worksite....................[235]
c. 1st January Dam Worksite....................[237]
d. Kampong Chhnang Airfield Construction Site....................[239]
e. Kraing Ta Chan....................[239]
f. Au Kanseng....................[241]
g. Phnom Kraol....................[242]
3. Alleged Errors Regarding Specific Groups....................[243]
a. The Cham....................[243]
b. The Vietnamese....................[245]
c. Former Khmer Republic Soldiers and Officials....................[247]
D. Facts Excluded from Case 002/02 upon Severance of the Case....................[249]
1. Alleged Absence of Saisine for Facts of Persecution on Political Grounds and the Other Inhumane Act of Forcible Transfer....................[250]
2. Alleged Absence of Saisine for Facts Relating to the Other Inhumane Act of Forcible Transfer of Population in the Course of Population Movement Phase Two....................[253]
3. Alleged Absence of Saisine for Facts Relating to the Other Inhumane Act Through Enforced Disappearances of the Vietnamese at the Tram Kak Cooperatives....................[257]
4. An Ill-Defined Marathon Trial....................[262]
E. Out of Scope but Relevant Evidence....................[264]
VII. ALLEGED ERRORS IN THE UNDERLYING CRIMES....................[271]
A. Murder as a Crime Against Humanity....................[272]
1. Whether the Mens Rea of Dolus Eventualis Was Part of Customary International Law by 1975....................[273]
2. Whether a Mens Rea that Includes Dolus Eventualis Was Foreseeable and Accessible....................[283]
3. Whether the Trial Chamber Erred Concerning Culpable Omissions....................[284]
4. Whether the Trial Chamber Erred in its Assessment of Temporality....................[287]
5. Whether Murder Was Established at the Following Sites....................[288]
a. Tram Kak Cooperatives....................[288]
b. Trapeang Thma Dam Worksite....................[294]
c. 1st January Dam Worksite....................[296]
d. Kampong Chhnang Airfield Construction Site....................[304]
e. Phnom Kraol Security Centre....................[305]
B. Extermination as a Crime Against Humanity....................[310]
1. Extermination of the Cham....................[310]
a. Killing of Cham at Trea Village....................[311]
b. Killing of Cham at Wat Au Trakuon....................[314]
c. The Numeric Threshold for Extermination....................[318]
d. Intention to Kill on a Large Scale....................[320]
2. Extermination of the Vietnamese....................[323]
a. Killing of Vietnamese in Svay Rieng....................[324]
b. Killing of Vietnamese in DK Waters....................[326]
c. Killing of Vietnamese in Kampong Chhnang Province....................[329]
d. Killing of Vietnamese at Wat Khsach....................[330]
e. Killing of Vietnamese in Kratie....................[333]
f. Killing of Six Vietnamese at Au Kanseng....................[334]
g. Whether the Killings Amount to Extermination....................[335]
C. Enslavement as a Crime Against Humanity....................[338]
1. Enslavement at Phnom Kraol....................[338]
D. Deportation as a Crime Against Humanity....................[340]
1. Tram Kak Cooperatives....................[340]
2. Prey Veng....................[348]
E. Torture as a Crime Against Humanity....................[354]
1. Torture of the Cham....................[354]
F. Persecution as a Crime Against Humanity....................[356]
1. Applicable Law....................[356]
a. Whether an Objective to Remove a Group from Society is an Element of Persecution....................[357]
b. Whether Undifferentiated Treatment that Has a Particular Impact on a Class of Individuals Can Amount to Discrimination in Fact....................[360]
2. Political Persecution....................[362]
a. Political Persecution of the Cham....................[362]
i. Alleged Errors Concerning the Actus Reus....................[363]
ii. Alleged Error Concerning the Mens Rea....................[365]
iii. Whether Arrests May Be Referred to in Establishing the Requisite Level of Severity....................[366]
b. Political Persecution of Other “Real or Perceived Enemies”....................[368]
i. Whether “Real or Perceived Enemies of the CPK” is a Sufficiently Discernible Group....................[369]
ii. Tram Kak Cooperatives....................[374]
Former Khmer Republic Soldiers and Officials....................[375]
New People....................[376]
a) Rations....................[377]
b) Working Conditions, Including in Mobile Youth Units....................[380]
c) Miserable Treatment....................[381]
d) Monitoring and Arrests....................[382]
iii. Trapeang Thma Dam Worksite....................[385]
iv. 1st January Dam Worksite....................[389]
New People....................[389]
Former Khmer Republic Soldiers and Officials....................[392]
v. S-21 Security Centre....................[394]
vi. Au Kanseng Security Centre....................[397]
3. Religious Persecution....................[400]
a. Religious Persecution of the Cham....................[400]
i. The Persecutory Acts....................[402]
ii. Whether the Persecutory Acts Occurred....................[405]
1st January Dam Worksite....................[406]
Elsewhere in Cambodia....................[409]
iii. Whether the Restrictions on Freedom of Religion Were Permissible....................[412]
iv. Whether the Persecutory Acts Discriminated in Fact....................[413]
v. Whether the Restrictions on Religious and Cultural Practices Breached Fundamental Rights....................[415]
vi. Whether There Was Intent to Discriminate on Religious Grounds....................[416]
vii. Whether the Threshold of Severity Was Established....................[419]
b. Religious Persecution of Buddhists and Buddhist Monks....................[420]
i. Alleged Lack of Evidence Regarding the Physical or Mental Effects of the Persecutory Acts against Buddhists....................[422]
ii. Alleged Absence of Discriminatory Treatment against Buddhist Monks and Buddhists in General....................[426]
Whether the Persecutory Acts against Buddhist Monks Discriminated in Fact....................[427]
Whether the Acts against Buddhists in General Discriminate in Fact and Whether there Was Intent to Discriminate....................[429]
4. Racial Persecution....................[432]
a. Tram Kak Cooperatives....................[433]
b. S-21 Security Centre....................[436]
c. Au Kanseng Security Centre....................[440]
d. Prey Veng and Svay Rieng....................[442]
i. Discernibility of the Group....................[443]
ii. Whether the Persecutory Acts Occurred....................[444]
iii. Whether the Acts Were Discriminatory in Fact....................[446]
iv. Whether the Vietnamese Were Deliberately Targeted....................[447]
G. Other Inhumane Acts as Crimes Against Humanity....................[449]
1. Assessing the Legality of Other Inhumane Acts....................[451]
a. The Trial Chamber's Assessment of the Principle of Legality....................[451]
b. Alleged Requirement to Breach a Prohibition in Human Rights Instruments to Amount to an Other Inhumane Act....................[453]
2. Enforced Disappearances....................[457]
a. Tram Kak Cooperatives....................[458]
b. Kraing Ta Chan Security Centre....................[461]
c. Phnom Kraol Security Centre....................[466]
3. Forced Marriage and Rape in the Context of Forced Marriage....................[469]
a. The Legality of Forced Marriage and Rape in the Context of Forced Marriage as the Crimes Against Humanity of Other Inhumane Acts....................[469]
i. Forced Marriage....................[471]
The Conduct of Forced Marriage....................[471]
“Formal International Unlawfulness”....................[475]
The Legality of Arranged Marriage....................[479]
Ejusdem Generis....................[482]
ii. Rape in the Context of Forced Marriage....................[485]
The Definition of Rape....................[486]
“Formal International Unlawfulness”....................[493]
Ejusdem Generis....................[496]
iii. Conclusion....................[499]
b. Factual Findings on the Regulation of Marriage Policy....................[499]
i. Introduction....................[499]
ii. Objectives of the Policy....................[500]
Increased Population Growth....................[500]
Control over Sexual Relations Outside Marriage....................[506]
Alleged Contradictions between the Goals of the Policy....................[511]
iii. The Elements of the Regulation of Marriage Policy....................[514]
The CPK Principle of Consent to Marriage....................[515]
Marriages of Disabled Persons....................[529]
Wedding Ceremonies....................[533]
Forced Sexual Intercourse in the Context of Forced Marriage....................[537]
a) Findings on Forced Sexual Intercourse....................[538]
b) Whether there Was a “Policy” of Forced Sexual Intercourse....................[539]
c) The Climate of Coercion....................[541]
(i) Monitoring by Armed Militia After the Wedding Ceremonies....................[541]
(ii) Acts of “Rape” as Punishment....................[546]
(iii) Lack of Express Statement of Coercive Circumstances....................[549]
d) Concealment of Non-Consummation....................[551]
iv. The Implementation of the Regulation of Marriage Policy....................[554]
Instructions from the Upper Echelon to Arrange Marriages and Approval of Matches Arranged by Lower-Level Cadres....................[555]
Reports on Marriage to the Upper Echelon....................[558]
Reports on the Monitoring of the Consummation of Marriage....................[560]
KHIEU Samphân's Personal Involvement in the Regulation of Marriage....................[562]
a) Sole or Primary Reliance on Civil Party Evidence....................[562]
b) Alleged Inconsistencies in CHEA Deap's Evidence....................[566]
c) Corroboration by Other Evidence....................[569]
d) Overall Finding on the Reliance on CHEA Deap's Civil Party Evidence....................[572]
c. Legal Findings on Forced Marriage, Rape in the Context of Forced Marriage and Sexual Violence in the Context of Forced Marriage as the Crimes Against Humanity of Other Inhumane Acts....................[572]
i. Introduction....................[572]
ii. Forced Marriage....................[573]
The Actus Reus of Forced Marriage....................[574]
The Relevance of Traditional Arranged Marriages to an Assessment of Gravity....................[578]
Serious Mental or Physical Suffering or Injury....................[581]
a) Standard for Assessing Serious Mental or Physical Suffering or Injury....................[583]
b) Reliance on the Evidence of Civil Parties....................[584]
c) Absence of Tradition in Ceremonies....................[585]
d) Other Traumatic Events....................[587]
e) Development of Feelings During Forced Marriage....................[589]
f) Credibility of Civil Parties EM Oeun and MOM Vun....................[593]
g) SOU Sotheavy....................[595]
iii. Forced Sexual Intercourse in the Context of Forced Marriage....................[596]
The Conduct of Forced Sexual Intercourse....................[596]
Female Victims: KHIEU Samphân's Appeal....................[599]
a) Relevance of Arranged Marriage....................[600]
b) Serious Mental or Physical Harm or Suffering....................[602]
(i) Absence of Express Statements of Harm....................[602]
(ii) “Rapes” as Part of the Coercive Environment....................[604]
(iii) Credibility Challenges....................[605]
(iv) SOU Sotheavy....................[606]
c) Evidence of Harm not Considered by the Trial Chamber....................[607]
Male Victims: The Co-Prosecutors' Appeal....................[609]
a) Whether the Trial Chamber Was Required to Consider Both Serious Mental or Physical Suffering or Injury, and a Serious Attack on Human Dignity....................[611]
b) Serious Mental or Physical Harm or Suffering....................[613]
c) Human Dignity....................[620]
H. Genocide....................[631]
1. Genocide of the Vietnamese....................[631]
a. Whether the Actus Reus Was Properly Established....................[631]
i. Whether Members of a Protected Group Were Targeted....................[631]
ii. Whether Members of the Protected Group Were Killed....................[633]
b. Whether the Mens Rea Was Properly Established....................[635]
i. Whether the Intent Was to Destroy the Protected Group as Such....................[635]
ii. Whether the Intent Was to Destroy the Protected Group in Whole or in Part....................[643]
VIII. ALLEGED ERRORS RELATING TO INDIVIDUAL CRIMINAL RESPONSIBILITY....................[645]
A. KHIEU Samphân's Roles and Functions....................[645]
1. Deputy Prime Minister, Minister of National Defence and Cambodian People's National Liberation Armed Forces Commander-in-Chief....................[645]
a. April 1975 Special National Congress and December 1975 Third National Congress....................[645]
b. Meetings of Military Personnel in Phnom Penh....................[647]
2. President of the State Presidium....................[648]
a. Appointment....................[648]
b. Roles and Responsibilities....................[648]
c. Speeches....................[651]
3. Member of the Central and Standing Committees....................[655]
a. Membership in the Central Committee....................[656]
i. Membership....................[656]
ii. Scope of Duties and Powers of the Central Committee....................[659]
iii. Attributing Standing Committee Decisions to the Central Committee....................[663]
iv. Presence at Congresses....................[669]
b. Attendance and Participation in Meetings of the Standing Committee....................[674]
i. Position of “Unique Standing” within the Party....................[675]
ii. Attendance and Participation in Standing Committee Meetings....................[678]
c. Democratic Centralism....................[682]
4. Residual Functions....................[685]
a. Participating in Education Sessions....................[685]
b. Member of Office 870....................[692]
c. Role with Respect to Trade and Commerce....................[696]
i. Oversight of the Commerce Committee....................[696]
ii. Education Sessions for Commerce Cadres....................[700]
d. Responsibility for the Ministry of Foreign Affairs....................[702]
B. Joint Criminal Enterprise....................[705]
1. Applicable Law....................[706]
2. Criminality of the Common Purpose....................[710]
3. Policy of Establishing and Operating Security Centres and Execution Sites....................[713]
4. Policy of Establishing and Operating Cooperatives and Worksites....................[718]
5. Policy of Targeting Specific Groups....................[723]
a. The Vietnamese....................[724]
b. The Cham....................[728]
c. Former Khmer Republic Soldiers and Officials....................[732]
d. Buddhists....................[735]
6. Policy of Regulating Marriage....................[735]
7. KHIEU Samphân's Contribution....................[736]
8. KHIEU Samphân's Knowledge and Intent....................[742]
a. Alleged “Vicarious” Intent....................[746]
b. Knowledge Indicative of Intent....................[748]
c. Cooperatives and Worksites....................[753]
d. Security Centres, Execution Sites, and Purges....................[760]
e. Specific Groups....................[769]
f. Regulation of Marriage....................[776]
9. Proprio Motu Issue Concerning the Applicability of JCE to Crimes Committed with Dolus Eventualis....................[777]
a. Whether the Common Plan Encompassed the Crime Against Humanity of Murder Committed with Dolus Eventualis....................[785]
b. KHIEU Samphân's JCE Liability for the Crime Against Humanity of Murder Committed with Dolus Eventualis....................[787]
IX. SENTENCING....................[790]
A. The Law Relevant to Sentencing Senior Leaders....................[793]
1. The Principle of Legality....................[794]
2. The Principles of Equality Before the Law, Proportionality, and Individualisation of Sentences....................[796]
B. Clarification Concerning the Second Sentence Imposed on KHIEU Samphân....................[806]
C. The Standard of Appellate Review for Sentencing....................[810]
D. Alleged Errors Related to Sentencing....................[810]
1. Alleged Error Regarding Consideration of Rape in Security Centres....................[815]
2. Alleged Error Regarding Double Counting of Abuse of Position of Authority and Influence....................[817]
E. Impact of the Supreme Court Chamber's Findings on the Sentence....................[819]
X. DISPOSITION....................[823]
XI. ANNEX I: GLOSSARY AND ABBREVIATIONS....................[827]
XII. ANNEX II: TABLE OF AUTHORITIES....................[828]
I. INTRODUCTION
1. The SUPREME COURT CHAMBER of the Extraordinary Chambers in the Courts of Cambodia (“ECCC”) for the Prosecution of Crimes committed during the Democratic Kampuchea regime between 17 April 1975 and 6 January 1979 hereby renders its judgment on the appeals by the Co-Prosecutors and KHIEU SamphânFootnote 1 against the Trial Chamber Judgment pronounced on 16 November 2018 and notified to all parties on 28 March 2019 in Case 002/02 against KHIEU Samphân (“Trial Judgment”).Footnote 2
A. FACTUAL BACKGROUND
2. The events giving rise to the appeals in this case occurred between 17 April 1975 and 6 January 1979 when the Communist Party of Kampuchea (“CPK”) reinforced, consolidated, and exercised power over the newly named Democratic Kampuchea (“DK”, formerly known as the Kampuchea Republic and prior to that as the Kingdom of Cambodia) and its population by dismantling the existing organs of the state and establishing parallel institutions and structures under the CPK's exclusive control.Footnote 3 The Trial Chamber found that the CPK enforced policies that, inter alia, abolished private ownership and a currency economy.Footnote 4 To govern the populace and wage class struggle, projects establishing cooperatives, airstrips, dams, security centres, and worksites were initiated across the country.Footnote 5 Throughout the DK period, the civilian population was denied basic fundamental freedoms and was subjected to widespread acts of extreme cruelty including the destruction of family life, and a culture of fear prevailed through killing, torture, physical violence, forced marriage, forced labour, enforced disappearances, and other inhumane treatment where the plight of the people appeared to be a matter of extreme indifference to the CPK leaders.Footnote 6 Many of the acts were discriminatory.Footnote 7 Thousands of Cambodians were slain or perished as a consequence of the CPK's policies, while hundreds of thousands fled the country.Footnote 8
3. KHIEU Samphân was born on 27 July 1931 in Chek or Rumchek Commune, Rumduol District, Svay Rieng province.Footnote 9 He was educated in Cambodia and in France, first as a lawyer, and subsequently he achieved a Doctorate in Economics from the University of Paris in 1959.Footnote 10 He had a longstanding and renowned political career in Cambodia.Footnote 11 After a spate of anti-leftist persecution by the Sihanouk government in 1960, he fled into the underground.Footnote 12 After Prince Sihanouk was overthrown in 1970, KHIEU Samphân joined a pro-royalist Khmer Rouge government in China, where, among other positions, he served as Royal Government of the National Union of Kampuchea (“GRUNK”) Deputy Prime Minister and Minister of National Defence.Footnote 13 From early 1976, he publicly represented DK as President of the State Presidium.Footnote 14 His duties included appearing as State leader, conducting diplomatic relations and generally promoting the CPK party line through speeches and statements.Footnote 15 He was seen as a powerful figure within the CPK from the early days of the Khmer Rouge, and the Trial Chamber found that his functions extended deep into the CPK and the State's core operations.Footnote 16 His workplace Office 870 was the government's operational hub.Footnote 17 He worked and lived in close proximity to the highest figures in the CPK and survived all purges of those luminaries.Footnote 18 He was a senior leader and co-conspirator with other CPK leaders.Footnote 19 He was a member of the powerful CPK Central Committee, and he attended Standing Committee meetings where critical issues were discussed and crucial decisions were made at the highest level of control.Footnote 20
4. The Trial Chamber convicted KHIEU Samphân of the crimes against humanity of murder, extermination, deportation, enslavement, imprisonment, torture, persecution on political, religious, and racial grounds, and other inhumane acts comprising conduct characterised as enforced disappearances, forcible transfer, forced marriage, and rape in the context of forced marriage.Footnote 21 He was also convicted of genocide by killing members of the Vietnamese groupFootnote 22 and grave breaches of the Geneva Conventions, namely wilful killing, torture, inhuman treatment, wilfully causing great suffering or serious injury to body or health, wilfully depriving prisoners of war or civilians the rights of fair and regular trials, and the unlawful confinement of civilians.Footnote 23
5. The Trial Chamber sentenced KHIEU Samphân to life imprisonment.Footnote 24 Taking into consideration the life sentence imposed on him in Case 002/01, the Trial Chamber merged the two sentences into a single term of life imprisonment.Footnote 25 It also found that the civil parties suffered harm by acts for which KHIEU Samphân was convicted, and consequently granted, in part, their plea for moral and collective reparations, endorsing thirteen specific communal memorial projects.Footnote 26
B. PROCEDURAL HISTORY
6. As a result of their convictions for crimes against humanity, grave breaches of the Geneva Conventions, and genocide, KHIEU Samphân and his co-Accused, the late NUON Chea, were sentenced to life imprisonment by the Trial Chamber on 16 November 2018.Footnote 27 On that day, the Trial Chamber issued a summary of its findings, indicating that the authoritative account of its written reasons in full would be made available in due course and its fully reasoned, written judgment was notified in Khmer, English, and French on 28 March 2019.Footnote 28 Three days after the Trial Chamber issued the summary of its findings, KHIEU Samphân filed an urgent appeal requesting that the Supreme Court Chamber annul it for lack of form, and declare the subsequent fully reasoned Trial Judgment invalid.Footnote 29 The Supreme Court Chamber dismissed the urgent appeal on 13 February 2019.Footnote 30 On 20 March 2019, KHIEU Samphân requested this Chamber to annul this decision, citing the Court's unlawful composition.Footnote 31 He submitted that the Reserve Judge of the Supreme Court Chamber, Judge RAPOZA, was not properly designated as a sitting judge when the decision was delivered.Footnote 32 On 16 August 2019, the Supreme Court Chamber dismissed the request, concluding that at the time the impugned decision was issued, Judge RAPOZA had been validly appointed and sworn in as a Supreme Court Chamber Judge, and thus the chronology of the filing of the Chamber's decision had been mischaracterised in relation to the judge's appointment.Footnote 33
7. On 3 April 2019, NUON Chea and KHIEU Samphân filed requests for extensions of time to file their respective notices of appeal against the Trial Judgment, as well as increased page limits.Footnote 34 On 26 April 2019, this Chamber granted these requests.Footnote 35 On 3 May 2019, KHIEU Samphân filed a request for reconsideration of this decision, arguing that this Chamber did not consider all his submissions.Footnote 36 The Supreme Court Chamber dismissed the request on 7 June 2019, stating that KHIEU Samphân's objection to the impugned decision did not establish an error or circumstances justifying review in order to avert injustice.Footnote 37
8. On 21 June 2019, the Co-Prosecutors filed their notice of appeal against the Trial Judgment, setting forth a single ground of appeal.Footnote 38 They submitted that the Trial Chamber erred in law and/or fact by finding that male victims of forced marriage who were coerced to have sexual intercourse without their consent were not victims of the crime against humanity of other inhumane acts.Footnote 39 On 1 July 2019, NUON Chea and KHIEU Samphân filed notices of appeal against the Trial Judgment.Footnote 40 NUON Chea listed 351 grounds of appeal,Footnote 41 while KHIEU Samphân advanced at least 1,824 errors allegedly committed by the Trial Chamber.Footnote 42 On 23 July 2019, NUON Chea requested an extension of time and page limits for filing his appeal brief.Footnote 43 Twelve days later, NUON Chea passed away at the Khmer-Soviet Friendship Hospital in Phnom Penh.Footnote 44 Two days later, the Co-Lawyers for NUON Chea requested this Chamber to either terminate the appellate proceedings concerning NUON Chea or, alternatively, allow the appellate proceedings to continue in the interests of justice.Footnote 45 On 13 August 2019, the Supreme Court Chamber terminated all proceedings against NUON Chea, remaining seised of the Defence request concerning, inter alia, the impact of NUON Chea's death on the Trial Judgment and the underlying conviction.Footnote 46 In a subsequent decision dated 22 November 2019, this Chamber clarified that the termination of proceedings against NUON Chea did not vacate the Trial Judgment and that his death barred any appellate review.Footnote 47
9. The Co-Prosecutors filed their Appeal Brief on 20 August 2019,Footnote 48 and KHIEU Samphân responded on 23 September 2019.Footnote 49 On 7 October 2019, the Civil Party Lead Co- Lawyers (“Lead Co-Lawyers”) filed submissions relating to KHIEU Samphân's Response to the Co-Prosecutors' Appeal Brief.Footnote 50 On 11 October 2019, KHIEU Samphân challenged this filing by requesting this Chamber to reject the Lead Co-Lawyers' submissions because procedurally they were not permitted to file their submissions as a reply to his response to the Co-Prosecutors' Appeal Brief.Footnote 51 On 29 January 2020, this Chamber granted KHIEU Samphân's request, while finding that “the Lead Co-Lawyers […] may, in the interests of justice, be invited to make oral submissions at the […] appeal hearing.”Footnote 52
10. On 8 October 2019, KHIEU Samphân filed a motion for admission of the additional evidence of Witnesses EK Hen and CHUON Thy and their corresponding audio recordings.Footnote 53 On 24 October 2019, the Co-Prosecutors responded to the motionFootnote 54 and on 4 November 2019, KHIEU Samphân submitted his reply.Footnote 55 On 6 January 2020, the Supreme Court Chamber granted KHIEU Samphân's request for admission of additional evidence.Footnote 56
11. On 31 October 2019, KHIEU Samphân filed an application to disqualify the six appeal judges who adjudicated Case 002/01.Footnote 57 On 15 November 2019, the Co-Prosecutors and the Lead Co-Lawyers successfully sought extension of time to file their respective responses to KHIEU Samphân's application and subsequently filed them on 25 November 2019.Footnote 58 On 14 July 2020, a special panel consisting of Judges PRAK Kimsan (Presiding), Olivier BEAUVALLET, NEY Thol, BAIK Kang Jin, HUOT Vuthy, SIN Rith and Steven BWANA of the ECCC (“Special Panel”) dismissed KHIEU Samphân's application in its entirety.Footnote 59
12. On 27 February 2020, KHIEU Samphân filed his Appeal Brief in French.Footnote 60 On 20 March 2020, the Co-Prosecutors filed a request to respond to KHIEU Samphân's Appeal Brief, which included additional grounds contained from earlier arguments.Footnote 61 On 24 April 2020, the Chamber granted the Co-Prosecutors' request.Footnote 62 On 23 April 2020, the English translation of Annex A to KHIEU Samphân's Appeal Brief was filed.Footnote 63 KHIEU Samphân's Appeal Brief was notified in English and Khmer on 14 July 2020 and 7 October 2020, respectively.Footnote 64 On 12 October 2020, the Co-Prosecutors responded in English, with the Khmer and French versions of their Response filed on 24 and 25 November 2020, respectively.Footnote 65 The Lead Co-Lawyers responded in English on 4 January 2021, with the Khmer and French versions filed on 16 and 23 March 2021, respectively.Footnote 66
13. On 22 January 2021, the Supreme Court Chamber scheduled the appeal hearing to be conducted from 17 to 21 May 2021.Footnote 67 However, the COVID-19 pandemic prevented this hearing from going ahead.Footnote 68 On 28 April 2021, the hearings were rescheduled for, and held on, 16 to 19 August 2021.Footnote 69
14. On 5 August 2022, the Supreme Court Chamber scheduled the pronouncement of its appeal judgment for 22 September 2022.Footnote 70
C. KHIEU SAMPHÂN'S APPEAL
15. Having raised approximately 1,824 alleged errors in his notice of appeal,Footnote 71 KHIEU Samphân proceeded to appeal a substantial portion of the Trial Judgment. His main submission on appeal alleges a procedural challenge to the Trial Chamber's pronouncement of a summary of its judgment without notifying full written reasons on the same day, contending that this action renders the Trial Judgment null and void. Alternatively, he submits that the Trial Chamber made errors that require the conviction and sentence to be overturned.Footnote 72 The Co-Prosecutors and Lead Co-Lawyers respond that KHIEU Samphân's appeal should be dismissed, and his conviction and sentence be upheld.
D. THE CO-PROSECUTORS' APPEAL
16. The Co-Prosecutors advance a single ground of appeal. They challenge the Trial Chamber's finding that forced sexual intercourse or forced consummation in the context of forced marriage did not constitute the crime against humanity of other inhumane acts in the instance of male victims. They allege that the Trial Chamber made legal and factual errors in its determination on serious physical and mental suffering or injury, as well as on human dignity. Accordingly, they aver that these errors invalidated the decision and resulted in a miscarriage of justice.Footnote 73 The Co-Prosecutors request for this finding to be set aside, and that the conviction for the crime against humanity of other inhumane acts be amended to include sexual violence against male victims.Footnote 74 The Co-Prosecutors submit that the requested relief is in accordance with Rule 110(4), because KHIEU Samphân has already been convicted of the crime of other inhumane acts.Footnote 75
17. KHIEU Samphân responds that it was impossible to conclude, as a matter of law and fact, that the suffering experienced by “male victims of domestic sexual violence” was sufficiently serious to amount to the crime against humanity of other inhumane acts, and that, as a result, the Co-Prosecutors' appeal should be dismissed.
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IV. ALLEGED ERROR IN THE ISSUANCE AND PRONOUNCEMENT OF THE JUDGMENT
49. KHIEU Samphân prefaces his appeal against the Judgment of the Trial Chamber with a preliminary submission, referred to as his main submission, in which he disputes the Trial Chamber's delivery of its Judgment in two parts. The essence of that submission is as follows:
By failing to issue the Reasons for Judgement on the day the Judgement was announced, the Chamber committed a serious error of law rendering the unlawfully announced Judgement void for procedural defect (I). The subsequent issuance of the Reasons did not cure the defect (II).Footnote 144
He submits that the ECCC procedural framework prohibits this two-step delivery method, which mandates that reasons for a judgment be delivered on the same day the judgment is announced, and the Trial Chamber's failure to comply with this legal requirement occasioned an error of law rendering the Judgment void.Footnote 145
50. KHIEU Samphân further argues that the judges of the Trial Chamber were functus officio when the full reasoned Judgment, currently under appeal, was notified, and that the Trial Chamber's action in delivering that reasoned Judgment was arbitrary and ultra vires.Footnote 146 He contends that if this submission is successful, the rest of his appeal is rendered moot because his guilt or innocence was never lawfully adjudicated.Footnote 147
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69. In response to KHIEU Samphân's submissions that the summary was defective, rendering the subsequent full Judgment an unlawful act, this Chamber has examined both documents and considers that the summary was in fact a very brief outline of the Trial Chamber's key findings. Clearly, it was not the authoritative Judgment by its announcement, title, appearance, or content. In contrast, the reasoned Judgment was a veritable tome of almost 2,268 pages in English, containing a detailed index and approximately 14,446 footnotes, which when delivered, had been fully translated into 3,901 pages in Khmer. The French translation of 2,696 pages followed a short time later. It dealt in detail with the contested issues, as well as its factual findings and conclusions. This was clearly the Judgment, not the summary.
70. This Chamber finds that legalistic opportunism is on display here by KHIEU Samphân. A fabricated sense of outrage that is disproportionate to the undoubted but relatively minor failure by the Trial Chamber to explain this deviation from the Rule is suspected. While the actions of the Trial Chamber may be criticised for not providing reasons, its intention to issue a summary first was well-flagged and transparent, and viewed from this vantage point, was very likely an exercise of discretion for good reasons. The unexplained deviations from Rule 102(1) were not of such consequence or gravity that they rendered the subsequent steps to deliver the reasoned Judgment null and void. This Chamber has previously held that, in determining whether the form of a Trial Chamber decision issued in a memorandum format rendered the decision void due to a procedural defect:
[u]nless the law would necessarily require a specific form or designation of a judicial act, practices departing from judicial formalism and symbolism do not render the acts void; such acts are rather reviewed in the aspect of fairness, in terms of sufficient clarity as to their existence, content and procedural consequences.Footnote 186
As previously noted, the Trial Chamber's intention to deliver a summary followed later by the fully reasoned judgment was well-signalled and transparent and not, in view of the substantial prior notice, an arbitrary act, as KHIEU Samphân claimed. He had the opportunity to object to the Trial Chamber President's openly-stated intention. If he perceived that the Trial Chamber's intended action was a breach of a substantial rule or affected his interests in any way, he should have objected. By remaining silent for nearly eight weeks, he chose to waive that right and acquiesce to the intended two-step approach to delivering the Judgment. The Trial Chamber then carried out its previously notified plan, delivering only a summary.
71. While it is preferable for the Trial Chamber to render its judgments in full on the day of pronouncement at the public hearing, the Supreme Court Chamber does not consider that this minor deviation caused such grave prejudice to KHIEU Samphân so as to result in a grossly unfair outcome in the full proceedings.
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79. Furthermore, this Chamber rejects KHIEU Samphân's claim that the summary delivered in open court, with a fully reasoned judgment to follow, was a judgment under Rule 102(1). Nothing in this rule specifies that such distribution or publication of the fully reasoned judgment must take place on the same day as pronouncement at the public hearing. In fact, it is not uncommon in international criminal cases of such magnitude to issue an oral summary of the judgment with written reasons to follow to allow for the completion of editorial and/or translation processes. This Chamber finds that there is no legal basis to claim that the procedural error influenced the verdict, the judgment, or the decision. There is no evidence of any prejudice against KHIEU Samphân. It follows that a lawful and reasoned judgment capable of appeal was pronounced on 16 November 2018 in summary form, with the full written version distributed and published on 28 March 2019. His right to review the decision underpinning both his convictions and his sentence remained wholly intact, pending the distribution and publication of the full written Judgment, as evidenced by the present adjudication of his appeal against the Trial Judgment.
80. In sum, KHIEU Samphân has not established that the summary delivered in open court was a judgment much less a defective judgment void for a procedural defect. As KHIEU Samphân's main premise is flawed, it is unnecessary to examine his other arguments that are based on it. The Supreme Court Chamber finds that the Trial Chamber's action did not constitute a grave error of law rendering the judgment null and void due to a procedural defect. Accordingly, KHIEU Samphân's main submission is dismissed.
V. ALLEGED ERRORS IN THE FAIRNESS OF THE PROCEEDINGS
81. KHIEU Samphân submits that the Trial Chamber was deeply biased against him and repeatedly violated his fundamental rights, thereby rendering the entire trial unfair and requiring the Supreme Court Chamber to reverse his conviction and sentence.Footnote 191 He argues that the Trial Chamber failed to conduct an impartial scrutiny into the crimes committed 40 years ago during a painful and complicated period of Cambodian history, and it also failed to apply the law that was in effect at the time.Footnote 192
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A. THE PRINCIPLE OF LEGALITY
90. The Supreme Court Chamber notes that the majority of KHIEU Samphân's arguments were previously advanced and considered in Case 002/01, and were ultimately dismissed by the Trial Chamber and by this Chamber. Among the contentions reiterated by KHIEU Samphân and rejected by this Chamber are that: accessibility and foreseeability require reference to specific provisions setting out the technical definition of the offence and the sentence;Footnote 211 the criteria of foreseeability and accessibility cannot be met merely by the fact that a crime or mode of liability existed under customary international law in 1975;Footnote 212 the dualist legal system in Cambodia means that, absent domestic implementation, none of the international norms formed part of Cambodian law;Footnote 213 and the definitions of the crimes and modes of liability, including the contextual elements of crimes against humanity, adopted by the Trial Chamber were neither accessible nor foreseeable in 1975.Footnote 214
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93. This Chamber has consistently held that crimes against humanity were established as an international crime during the ECCC's temporal jurisdiction and that their contextual or chapeau elements were enshrined in a range of post-World War II international and domestic legal instruments and also formed part of customary international law in 1975.Footnote 226 Cambodia's ratification of the four Geneva Conventions on 8 December 1958 renders the prohibition of grave breaches of the four conventions as well as their chapeau elements applicable law, and thus binding on Cambodia. Cambodia's accession to the 1948 Genocide Convention on 14 October 1950 similarly renders the prohibition of genocide applicable to and binding on Cambodia. The crimes of genocide, crimes against humanity, and war crimes along with their elements were therefore sufficiently foreseeable and accessible to KHIEU Samphân as a member of Cambodia's governing authority from 1975 onwards.
94. Based on the foregoing, the Supreme Court Chamber concludes that KHIEU Samphân's appeal challenge concerning the principle of legality is without merit and is rejected in its entirety.
…
C. ALLEGED PARTIALITY OF THE TRIAL CHAMBER
110. KHIEU Samphân raises multiple allegations of bias stemming from the Trial Chamber's prior adjudication of Case 002/01, namely that the Trial Chamber failed to address the allegations of bias he raised,Footnote 274 and that its bias is manifested by the automatic importation of findings and evidence from Case 002/01 into Case 002/02.Footnote 275 The Supreme Court Chamber addresses these allegations in turn.
…
121. The Supreme Court Chamber notes that, with exception of the finding on the existence of a CPK regulation of marriage policy, KHIEU Samphân fails to identify with sufficient specificity or references to the Case 002/01 Trial Judgment the particular findings which he claims that the Trial Chamber imported into Case 002/02.Footnote 309 He also offers no further evidence to substantiate his claim that the Trial Chamber did not make these “similar” findings through a renewed analysis of the evidence in Case 002/02, including regarding the CPK's regulation of marriage policy. To the contrary, a reading of the Trial Chamber's reasoning on the issue in Case 002/02 reveals that it reached its findings separately and on the basis of a body of new evidence not considered in Case 002/01.Footnote 310
122. Moreover, the mere fact that the Trial Chamber may have reached similar conclusions on similar issues in both trials does not, per se, demonstrate that its determinations were necessarily biased or attributable to a predisposition against KHIEU Samphân, and is accordingly insufficient to displace the presumption of impartiality. On this, the case law of the ad hoc tribunals echoed by the Special Panel has established that professional judges can be relied upon to rule fairly on the issues before them, relying solely on the evidence adduced in the particular case, and are accordingly not disqualified from hearing two or more cases arising out of the same series of events and involving similar evidence.Footnote 311 KHIEU Samphân's submissions in these respects are accordingly dismissed.
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4. Other Findings Allegedly Demonstrating Bias
152. Finally, separate from his arguments alleging bias from the Trial Chamber's treatment of the Case 002/01 findings, KHIEU Samphân alleges that certain legal or factual errors demonstrate the Trial Chamber's biased approach to the examination of the evidence as a whole,Footnote 417 its biased approach to the law,Footnote 418 and bias in sentencing.Footnote 419 The Co-Prosecutors argue that KHIEU Samphân does not demonstrate actual bias in the Trial Chamber's reasoning in any submissions in his Appeal Brief.Footnote 420 The Lead Co-Lawyers respond that these are unsupported “offhand allegations”,Footnote 421 which have the potential to undermine the legitimacy of the Court. In their view, allegations of bias should be made judiciously and with thorough substantiation.Footnote 422 They request the Supreme Court Chamber not only to reject the challenges related to bias, but to make clear that the repeated casual allegations of bias throughout KHIEU Samphân's Appeal Brief are without basis.Footnote 423
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154. The Supreme Court Chamber considers that these allegations found throughout KHIEU Samphân's Appeal Brief concern allegations of bias arising from judicial decisions. This Chamber recalls that “[a] showing of bias, or appearance of bias, can be made, inter alia, based on statements contained in the reasoning of a decision of the court in question” and that the enquiry is directed at establishing whether its reasoning revealed lack of impartiality.Footnote 433 This Chamber dismisses KHIEU Samphân's allegations insofar as they merely disagree with the Trial Chamber's findings or allege factual or legal errors, as matters which are instead subject to appeal,Footnote 434 and which are accordingly addressed in the relevant sections of this judgment in accordance with the applicable standard of review. Such allegations do not, however, establish that these findings were made because of a predisposition against KHIEU Samphân.
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VI. ALLEGED ERRORS IN THE SCOPE OF THE JUDICIAL INVESTIGATION AND TRIAL
…
E. Out of Scope but Relevant Evidence
…
655. KHIEU Samphân argues that the Trial Chamber erred in law and violated his rights to be informed of the nature and cause of the charge against him, to adequate time and facilities for the preparation of his defence, to an impartial tribunal that respects the scope of its jurisdiction, to legal and procedural certainty, and to be tried without undue delay taking into account and employing the “out-of-scope but relevant evidence” about facts not seised.Footnote 1836 In a footnote of his Appeal Brief,Footnote 1837 KHIEU Samphân takes issue with the Trial Chamber's findings that it may (1) rely on evidence outside the temporal or geographic scope of the Closing Order;Footnote 1838 (2) use evidence of the treatment of Buddhists outside the Tram Kak Cooperatives;Footnote 1839 (3) use evidence concerning the Khmer Krom;Footnote 1840 and (4) use evidence pertaining to crimes committed by the Revolutionary Army of Kampuchea on Vietnamese territory.Footnote 1841
656. KHIEU Samphân contends that the Trial Chamber's approach is inconsistent with its role and the purpose of criminal proceedings as stated in the Internal Rules, as well as a violation of the guiding and fundamental principles of criminal law. He argues that the Trial Chamber must examine whether the charges against the Accused for which he was indicted amount to a crime and whether he is liable for it, and that the judgment shall be limited to these facts, and the Accused shall only be required to defend himself against these facts.Footnote 1842 Citing his Closing Brief, KHIEU Samphân opines that he previously discussed at length the principles and factual scope of the jurisdiction of a trier of fact that determines the information to be provided about the charges against him and denounces the resulting confusion.Footnote 1843
…
665. The Supreme Court Chamber notes that the applicable law before the ECCC does not preclude the admission or the consideration of evidence on facts falling outside of the temporal or geographic jurisdiction of the Court. On the contrary, Rule 87(1) directs that “all evidence is admissible” unless otherwise provided in the Internal Rules, and Rule 89 quater generally grants the Trial Chamber the discretion to reduce the scope of the trial. Rule 89 quater (1) permits the Trial Chamber to exercise this discretion by excluding certain facts set out in the Indictment while ensuring the remaining facts are representative of the scope of the Indictment. Rule 89 quater (3) explicitly provides that “[e]vidence relating to the facts excluded [from the scope of the trial] may be relied upon to the extent it is relevant to the remaining facts”.Footnote 1867
666. In the same vein, the Supreme Court Chamber reaffirms the well-established principle, widely accepted at ad hoc tribunals,Footnote 1868 and adopted by the Co-Investigating JudgesFootnote 1869 and the Chambers of the ECCC,Footnote 1870 that a trial chamber may validly admit and rely on evidence that falls outside of the temporal or geographic scope of the Closing Order and the jurisdiction of the Court in the three circumstances listed herein: (1) to clarify a given context; (2) to establish by inference the elements, particularly the mens rea, of criminal conduct occurring during the material period; or (3) to demonstrate a deliberate pattern of conduct. In this case, the Trial Chamber expressly stated its intention to limit the scope of the trial with the issuance of the Case 002 Additional Severance DecisionFootnote 1871 and Annex, and in the course of the trial, further assured the parties that “[t]he Chamber [would] therefore only rely on this evidence for these limited purposes and exclusively when the out-of-scope evidence is consistent with other evidence.”Footnote 1872
667. In addition, with its obligation to safeguard the fundamental rights of the accused pursuant to Rule 21(1) duly in mind, and recalling the consistent jurisprudence of the Chambers of the ECCC,Footnote 1873 as well as the established legal approach adopted by ad hoc tribunals,Footnote 1874 the Supreme Court Chamber reaffirms that in assessing an indictment and determining whether an accused was adequately put on notice of the nature and cause of the charges against him or her in order to prepare a defence, the indictment must be considered as a whole, and thus each paragraph therein should not be read in isolation, but rather should be considered in the context of the other paragraphs in the indictment.Footnote 1875
668. Given the foregoing, the Supreme Court Chamber finds no error in the Trial Chamber's conclusion that it may rely on the evidence outside the temporal or geographic scope of the Closing Order for the limited purposes of clarifying a given context, establishing by inference the elements of criminal conduct occurring during the material period, or demonstrating a deliberate pattern of conduct. Consequently, this Chamber rejects KHIEU Samphân's challenge in this regard.
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VII. ALLEGED ERRORS IN THE UNDERLYING CRIMES
…
A. Murder as a Crime Against Humanity
…
679. KHIEU Samphân claims his conviction for murder as a crime against humanity was based on several legal and factual errors. He argues that (1) the mens rea of murder as a crime against humanity under customary international law in 1975 did not include dolus eventualis;Footnote 1896 (2) a mens rea that includes dolus eventualis was not foreseeable and accessible to him;Footnote 1897 (3) the Trial Chamber made errors in finding culpable omissions as part of the actus reus of murder as a crime against humanity at Tram Kak Cooperatives, Trapeang Thma Dam, 1st January Dam, and Kampong Chhnang Airfield Worksites;Footnote 1898 (4) the Trial Chamber erred in its analysis of the mens rea with respect to temporality at Tram Kak Cooperatives, Trapeang Thma Dam, 1st January Dam and Kampong Chhnang Airfield Worksites;Footnote 1899 and (5) the Trial Chamber erred in its factual findings that the murders committed with dolus eventualis had been established at Tram Kak Cooperatives, Trapeang Thma Dam Worksite, 1st January Dam and Kampong Chhnang Airfield Construction Site, and it further erred in finding that two murders, one committed with direct intent and one murder with dolus eventualis were perpetrated at Phnom Kraol Security Centre.Footnote 1900 These arguments will be addressed in turn.
1. Whether the Mens Rea of Dolus Eventualis Was Part of Customary International Law by 1975
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687. The Supreme Court Chamber determines that the Trial Chamber correctly analysed customary international law in 1975 to determine that the mens rea of murder as a crime against humanity included dolus eventualis. This finding was based on the Supreme Court Chamber's review of the Medical Case in the Case 002/01 Appeal Judgment, as well as the Trial Chamber's own analysis of that case. KHIEU Samphân's disagreement with these analyses is insufficient to persuade the Supreme Court Chamber to reconsider its analysis. The Supreme Court Chamber adds that while KHIEU Samphân has contested these analyses of the Medical Case, by arguing that the Medical Case reveals a mens rea of direct intent, he has not cited any other international jurisprudence to support his claim that the mens rea was limited to direct intent.
688. The Supreme Court Chamber does not consider that the Trial Chamber erred in referring to ad hoc tribunals' jurisprudence as providing guidance on the applicable mens rea of the crime against humanity of murder. The Trial Chamber recalled that, in order to accord with the principle of legality, the definition of murder must reflect the state of customary international law in 1975, and it relied on the Supreme Court Chamber's assessment in Case 002/01 as well as conducting its own assessment, noting that the ad hoc tribunals' jurisprudence was not completely consistent and simply provided guidance.Footnote 1931 The Trial Chamber was not bound by ad hoc tribunals' jurisprudence. There is no error in considering the jurisprudence as guidance. The Supreme Court Chamber also recalls that pursuant to Article 33 new of the ECCC Law, chambers may seek guidance at the international level.
689. The fact that the ICC does not include dolus eventualis in the mens rea of murder as a crime against humanity, or in the mens rea of other crimes within the ICC's jurisdiction, does not support a conclusion that the mens rea of murder under customary international law did not include dolus eventualis. The ICC is not regarded as having codified customary international law on mens rea.Footnote 1932
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694. In response to KHIEU Samphân's alternative argument that there is no evidence of a general principle that includes dolus eventualis in the mens rea of murder, the Supreme Court Chamber notes that he has criticised the Trial Chamber's analysis but offers no supporting reasons of his own. He objects to the Trial Chamber's alleged assimilation of complex notions of national criminal law taken out of their context,Footnote 1947 but determining general principles of domestic law must necessarily distil general concepts from complex notions. The Trial Chamber was cognisant of the fact that domestic jurisdictions differ and that “the precise definition of this crime may vary”.Footnote 1948 It properly surveyed a variety of common law and civil law jurisdictions, as well as Russia and Japan. KHIEU Samphân argues that the Supreme Court and Trial Chambers erroneously interpreted the requisite intent in various jurisdictions, but his examples do not show any error. The finding was not that, as a general principle, the legal systems of the world employ a mens rea exactly equivalent to dolus eventualis; rather the Supreme Court Chamber found that “the causing of death with less than direct intent but more than mere negligence, such as dolus eventualis or recklessness, incurs criminal responsibility and is considered as intentional killing”Footnote 1949 and the Trial Chamber found that “the vast majority of these domestic systems recognise that a standard of mens rea lower than direct intent may apply in relation to murder, the lowest being dolus eventualis.”Footnote 1950 The Supreme Court Chamber therefore sees no error in considering, for example, that section 18(a) of the New South Wales Crimes Act 1900 punishes acts committed with “reckless indifference to human life, or with intent to kill or inflict grievous bodily harm”.Footnote 1951 Recklessness has a mens rea lower than direct intent.
695. Furthermore, the Trial Chamber recognised that Cambodian law is a “noticeable exception” to the legal systems it analysed, in which legislation or case law “clearly criminalised as intentional killing[] conduct where the perpetrator was acting with less than direct intent.”Footnote 1952 Domestic practice need not be entirely uniform to establish a general principle,Footnote 1953 and contrary to KHIEU Samphân's assertion, there is no legal error in concluding that a general principle exists despite Cambodian law not being in conformity with the general principle.
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697. Finally, the Supreme Court Chamber concludes that the Trial Chamber did not err in including dolus eventualis in the mens rea of murder as a crime against humanity in 1975. As KHIEU Samphân's argument concerning the mens rea of murder under customary international law in 1975 was rejected, his arguments that the Trial Chamber erred in failing to establish that the murders at Tram Kak Cooperatives, Trapeang Thma Dam Worksite, 1st January Dam Worksite, Kampong Chhnang Airfield Construction Site, S-21 Security Centre, Kraing Ta Chan Security Centre, and Phnom Kraol Security Centre due to living, working and detention conditions and blood-drawing at S-21Footnote 1957 had been committed with direct intent rather than dolus eventualis, fail and are accordingly dismissed.
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5. Whether Murder Was Established at the Following Sites
a. Tram Kak Cooperatives
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713. KHIEU Samphân submits that the Trial Chamber erred in determining that deaths were due to, inter alia, starvation and rudimentary medical care.Footnote 1994 Concerning deaths due to starvation, he argues that the report from the Southwest Zone dated 3 June 1977, on which the Trial Chamber relied on to find that there were periods of great food shortages, does not support such a finding.Footnote 1995 He also submits that the Trial Chamber misinterpreted some witness testimony and relied on evidence of low probative value.Footnote 1996 Concerning the deaths due to rudimentary medical care, KHIEU Samphân claims that the Trial Chamber erred in finding that the actus reus was rudimentary medical care, malnutrition, and overwork because it relied exclusively on RIEL Son's testimony. RIEL Son became Deputy Chief of the Tram Kak District Hospital in late 1976Footnote 1997, and he did not state that deaths were due to rudimentary medical care.Footnote 1998 Finally, KHIEU Samphân raises two alleged errors concerning the mens rea that have not been addressed elsewhere in this Judgment: first, that the Trial Chamber did not establish the mens rea beyond reasonable doubt since it did not determine whether the Tram Kak authorities had deliberately imposed the conditions “with the knowledge that they would likely lead to deaths” or “in the acceptance of the possibility of this fatal consequence”,Footnote 1999 namely, it should have found either one of these alternatives beyond a reasonable doubt; and second, that the Trial Chamber erred in finding that the mens rea was satisfied in the form of dolus eventualis despite its conclusion that factors beyond the control of the authorities may have contributed to lack of food and medical resources in some cases.Footnote 2000 He submits that it is “impossible to establish the connection between the measures implemented by the authorities to redress the country, independent factors and pre-existing factors, and their impact on the population. Accordingly, there are questions about the factors that caused the humanitarian catastrophe”.Footnote 2001
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718. Finally, the Supreme Court Chamber does not consider it an error of law that the Trial Chamber found that the mens rea was satisfied due to the fact that the authorities imposed the conditions “with the knowledge that they would likely lead to deaths or in the acceptance of the possibility of this fatal consequence”.Footnote 2028 The Trial Chamber determined that the continuance of the conditions after the effects became apparent demonstrated that the authorities were aware that deaths were likely or accepted the possibility of deaths. It was therefore unnecessary to distinguish between them because either the authorities' knowledge or their acceptance would indicate that the mens rea had been satisfied and could be inferred. The Supreme Court Chamber concludes that KHIEU Samphân has not demonstrated that the Trial Chamber reached a finding no reasonable trier of fact could reach simply by pointing to the factors beyond the control of authorities. The Trial Chamber acknowledged that factors beyond the control of authorities may have partly contributed to the lack of food and medical facilities,Footnote 2029 but considering the climate of control, threats, fear, hunger, and discrimination, and the persistence of the harsh conditions for an extended period of time including after the effects became so apparent, the Trial Chamber found that the conditions were wilfully imposed. Even if factors beyond the control of the authorities were entirely responsible for the lack of food and medicine, and the Supreme Court Chamber does not suggest that this is the case, this would not explain deaths caused by overwork and exhaustion. KHIEU Samphân's arguments concerning murder as a crime against humanity at Tram Kak Cooperatives are therefore dismissed.
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e. Phnom Kraol Security Centre
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741. KHIEU Samphân submits that the Trial Chamber erred by finding that Heus's murder was established on the basis of two Written Records of Interview, despite the fact that he was unable to test this evidence in court.Footnote 2119 He considers that because the Written Records of Interview were prepared by the Co-Investigating Judges at the same time and place with one interview occurring at 10:10 a.m. and the other at 10:15 a.m., there is the possibility of collusion or at least contamination between the two accounts.Footnote 2120 He further submits that the Trial Chamber breached the principles of adversarial proceedings and equality of arms by establishing murder on the basis of evidence he could not challenge, citing ECtHR jurisprudence demonstrating that the right to a fair trial is violated when a conviction is based on evidence that was not subject to adversarial argument and to Article 427 of the French Code of Criminal Procedure, which states that “[t]he judge may only base his decision on evidence which was submitted in the course of the hearing and adversarially discussed before him.”Footnote 2121
742. KHIEU Samphân next submits that the Trial Chamber erred in finding that Touch was murdered with dolus eventualis based on the Written Record of Interview of a deceased civil party.Footnote 2122 He argues that the Trial Chamber had clarified in the Case 002/01 Trial Judgment that it may use statements of deceased persons but would not base any conviction decisively on them, and that the Supreme Court Chamber validated this approach.Footnote 2123 He submits that the Trial Chamber failed to provide any reasons for deviating from this approach, instead simply stating that SOK El was credible, despite the fact that her 2008 statement was not corroborated by any other evidence.Footnote 2124
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751. While the statements and Civil Party Applications of UONG Dos and SOK El corroborated each other concerning the death of Heus, the conviction was still based solely on evidence KHIEU Samphân was unable to test in court. While the statement of SOK El concerning the death of Touch was corroborated in general terms by other evidence demonstrating the poor conditions of detention, it was the sole piece of evidence relied on to prove Touch's death based on the detention conditions. The Supreme Court Chamber finds the Trial Chamber's findings concerning the deaths of Heus and Touch to be in error, given that they were based decisively on the written statements from witnesses KHIEU Samphân was unable to confront. Accordingly, it overturns the Trial Chamber's findings concerning the crime against humanity of murder with regard to the deaths of Heus and Touch.
B. EXTERMINATION AS A CRIME AGAINST HUMANITY
1. Extermination of the Cham
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c. The Numeric Threshold for Extermination
774. The Trial Chamber stated that although it was unable to establish a definite number of victims, it was satisfied that “a great number of Cham civilians” were taken to Trea Village and Wat Au Trakuon security centres and that the killings occurred on a massive scale and formed part of the same operation.Footnote 2217
775. KHIEU Samphân argues that the Trial Chamber finding on the number of victims was based on speculation and was imprecise.Footnote 2218
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777. While extermination has generally been defined as “killing on a large scale”,Footnote 2221 there is no numeric threshold required for the crime against humanity of extermination.Footnote 2222 Extermination has been found on the basis of fewer than 60 killings.Footnote 2223 The Trial Chamber considered that the killings at Trea Village and at Wat Au Trakuon “formed part of the same murder operation.”Footnote 2224 The actus reus of extermination may be established through an aggregation of separate incidents where they form part of the same operation.Footnote 2225
778. Considering that the Trial Chamber found that the CPK targeted the Cham to be purged, this Chamber concludes that it is not unreasonable to find that the killings at Trea Village and Wat Au Trakuon formed part of the same operation where the numbers of victims could be aggregated when determining whether killing occurred on a massive scale for the actus reus of extermination. Although the Trial Chamber did not have the exact number of victims at Trea Village or Wat Au Trakuon, one witness referred to 400-500 Cham who were arrested and held at Wat Au Trakuon and testified that he was told by his friend, their executioner, that they were killed.Footnote 2226 The Supreme Court Chamber concludes that this number on its own would amount to killing on a large scale, even without aggregating the killing that occurred at Trea Village. This argument is dismissed.
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2. Extermination of the Vietnamese
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g. Whether the Killings Amount to Extermination
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818. KHIEU Samphân contends that the killings of Vietnamese found by the Trial Chamber were isolated incidents and did not meet the requisite breadth of scale to amount to extermination.Footnote 2360 He argues that the specific instances of killing found by the Trial Chamber establish the deaths of no more than 19 individuals.Footnote 2361 He considers that the killings could not amount to the same murder operation as they occurred in five different zones of the country on different dates.Footnote 2362 He submits that the Trial Chamber unreasonably extrapolated to estimate that approximately 60 Vietnamese were murdered because there was no evidence or objective basis for it to estimate the average number of deaths at sea as two per family and five per boat.Footnote 2363
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820. The Supreme Court Chamber notes that the Trial Chamber explicitly considered that, across multiple sites, Vietnamese were “specifically screened out and separated from non- Vietnamese before being killed”.Footnote 2367 Contrary to KHIEU Samphân's submission, the Trial Chamber did not need to compare events, “seeking similarities”.Footnote 2368 These similarities exist objectively and they demonstrate that Vietnamese victims were targeted not as individuals but distinct from their Khmer neighbours or relatives, by virtue of their being perceived as Vietnamese. Moreover, the Trial Chamber found that these killings took place in the broader context of a nationwide policy targeting Vietnamese, both civilians and combatants, for hostile treatment, a finding already affirmed by this Chamber. It was these factors, among others, that led the Trial Chamber to find that killings in Kampong Chhnang province in 1977 and in Kratie province in 1978, whose relationship KHIEU Samphân disputes,Footnote 2369 were not distinct events, but instead formed “part of the same murder operation”.Footnote 2370 As for the scale requirement, without including the killings of five of PRAK Doeun's children and the parents of UCH Sunlay's wife, which the Trial Chamber erroneously established,Footnote 2371 the total number of killings established stands at more than 50.Footnote 2372 Besides these killings, the majority of which the Trial Chamber established based on witnesses' live testimony, the Trial Chamber also established the killings of six Vietnamese at Au Kanseng Security CentreFootnote 2373 and the killings of hundreds of Vietnamese soldiers and civilians at S-21,Footnote 2374 killings encompassed in its finding of extermination. Nor can the Trial Chamber's estimate of two people per family and five people per boat where the evidence was not specific be read as anything other than cautious.Footnote 2375 Indeed, the Trial Chamber explicitly articulated that the number of specific killings it found to be established “in light of the overall evidence, is almost certainly an underestimation of the actual situation”.Footnote 2376 This Chamber therefore views this as a finding of the minimum death toll, which, given that “there is no numerical minimum; extermination has been found to have been committed in relation to thousands of killings as well as for fewer than sixty individuals”,Footnote 2377 fails to undermine the Trial Chamber's finding that the massive scale requirement was satisfied.
821. For the foregoing reasons, KHIEU Samphân's submissions in relation to the killings of Vietnamese in Svay Rieng, DK waters, Kampong Chhnang province, Wat Khsach, Kratie province, and Au Kanseng Security Centre, and with respect to their characterisation as extermination are dismissed.
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F. PERSECUTION AS A CRIME AGAINST HUMANITY
1. Applicable Law
868. The Trial Chamber defined the crime against humanity of persecution as:
(i) an act or omission which […] discriminates in fact and which denies or infringes upon a fundamental right laid down in international customary or treaty law (actus reus); and
(ii) deliberate perpetration of an act or omission with the intent to discriminate on political, racial or religious grounds (mens rea).Footnote 2512
869. This definition of persecution was affirmed by the Supreme Court Chamber in Case 002/01 and was not contested by the parties during the trial stage.Footnote 2513
870. KHIEU Samphân alleges two errors of law relating to this definition of persecution and the interpretation of its elements. First, he submits that the Trial Chamber erred by omitting a requirement in customary international law that a deprivation of rights or discrimination must have as its objective the removal of persons from the society in which they live alongside the perpetrators, or eventually even from humanity itself.Footnote 2514 Second, he argues that the Trial Chamber erred in characterising undifferentiated treatment that has a particular impact on a class of individuals as discrimination in fact.Footnote 2515 The Supreme Court Chamber will address these arguments in turn. Arguments relating to factual issues are addressed separately in the relevant sections of this Judgment.
a. Whether an Objective to Remove a Group from Society is an Element of Persecution
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876. This Chamber is unpersuaded by the jurisprudence relied upon by KHIEU Samphân to alter its finding. The IMT may have found that some defendants intended to remove Jews from German society, but this was not set out by the IMT as an element of persecution. Rather, it was a finding made based on the facts of the case. The same is true of the Eichmann case.
877. The IMT was presented with a significant amount of evidence concerning the pre-1939 treatment of Jews and appears to have considered that persecution occurred prior to the existence of a policy directed toward removing Jews from German society (though it may have lacked jurisdiction over these acts of persecution due to their not having been committed in execution of or connection with war crimes or crimes against peace). The IMT Judgment states:
The persecution of the Jews at the hands of the Nazi Government has been proved in the greatest detail before the Tribunal. It is a record of consistent and systematic inhumanity on the greatest scale. […] With the seizure of power, the persecution of the Jews was intensified. A series of discriminatory laws was passed, which limited the offices and professions permitted to Jews; and restrictions were placed on their family life and their rights of citizenship. By the autumn of 1938, the Nazi policy towards the Jews had reached the stage where it was directed towards the complete exclusion of Jews from German life.Footnote 2528
878. The facts found were of increasing and worsening discrimination against the Jews culminating in their arrests and removal to slave labour and death camps. There is no suggestion in that judgment that those Jews who fled Germany because of the discriminatory laws which restricted their professional, economic and family life were not persecuted as they were not removed from German life nor is there any suggestion that the crime of persecution mandated the extermination of the Jews or any targeted group.
879. In the same vein, the Eichmann case, which KHIEU Samphân also focuses on, read in context, also indicates that the intent to discriminate for persecution was construed more broadly than the intent to eliminate persons belonging to a group from society, as KHIEU Samphân argues.Footnote 2529 The relevant part of the Eichmann Judgment, which he also quotes, in fact reads that “[a]ll his acts carried out with the intent of exterminating the Jewish People also amount, in fact, to the persecution of Jews on national, racial, religious and political grounds.”Footnote 2530 The Court did not hold that the intent of persecution is the intent to exterminate or eliminate the persons. Rather, it cautiously stated that it additionally “amounts to” persecution.
880. Furthermore, the reason persecution is considered a crime against humanity is due to the inhumanity of discriminatory gross or blatant denials of fundamental human rights.Footnote 2531 It would be nonsensical to consider that this crime could not serve to protect a group of people living in a society where their fundamental human rights are violated, but would only protect those intended to be removed from that society. A group could be considered “second-class citizens” and treated poorly without a desire that they be removed from society.
881. While the concern is with the law as it existed in 1975, it is notable that the additional mens rea element suggested by KHIEU Samphân was not considered for inclusion in the Rome Statute. Were it at one time considered an element of persecution, one should expect to find at least some discussion of whether to remove it, yet this does not appear to have been discussed.
882. As this Chamber has found that an intent to remove “persons from the society in which they live, or eventually even from humanity itself” is not an element of the mens rea of persecution, KHIEU Samphân has failed to show an error of law by the Trial Chamber. His arguments that the Trial Chamber erred by failing to establish that this element had been met with regard to Buddhists and Monks and the Cham are therefore moot.Footnote 2532 This argument is dismissed in whole.
b. Whether Undifferentiated Treatment that Has a Particular Impact on a Class of Individuals Can Amount to Discrimination in Fact
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886. The Supreme Court Chamber considers that the primary issue before it is whether a finding of discrimination in fact can be established from the consequences or impact felt by a particular group. The Supreme Court Chamber recalls that the actus reus of persecution requires an act or omission which discriminates in fact and which denies or infringes upon a fundamental right laid down in international customary or treaty law.Footnote 2542 Discrimination in fact refers to whether the target group actually suffers discriminatory consequences as a result of the act or omission, that is, discriminatory intent alone is insufficient.Footnote 2543
887. The Supreme Court Chamber agrees with the Co-Prosecutors that there is no legal requirement to differentiate between direct or indirect discrimination when establishing the existence of discrimination in fact. This Chamber considers that whether the acts amount to direct or indirect discrimination is irrelevant for a determination of whether the group suffered consequences of the relevant act or omission. An act or omission is considered discriminatory when a victim is targeted because of the victim's membership in a group defined by the perpetrator on a political, racial, or religious basis.Footnote 2544 Whether a victim is targeted by indirect discrimination relates to the intent behind the act or omission. Sometimes, to establish whether laws are directed specifically towards one group when applied to all requires some examination. For instance, if a regime decreed that all citizens had to eat meat once a week this would have little deleterious effect on meat eaters but would affect those who belonged to religions that followed vegetarianism. Because the decree has negative consequences particularly for those whose religions require vegetarianism, members of those groups can be considered to have suffered discrimination in fact as a result of the decree. Whether this decree simply had unintended consequences for those religious groups or was a ruse to target those groups is a matter for enquiry into the objective of the decree. A holistic and contextual evaluation might determine that the intent behind the decree was specifically to target the adherents of religions that practiced vegetarianism. In such a situation, the conduct would amount to persecution.
888. In conclusion, the Trial Chamber did not err in law by considering the impact on the victims when determining whether discrimination in fact occurred. KHIEU Samphân's argument to the contrary is dismissed.
2. Political Persecution
a. Political Persecution of the Cham
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891. KHIEU Samphân submits that the Trial Chamber erred in law by failing to establish that the population transfers affected exclusively or at least primarily Cham and were therefore discriminatory, or that in the course of the transfer, the Cham were treated differently from others; this being the test the Supreme Court Chamber set out in Case 002/01 with regard to “New People.”Footnote 2550 He argues that the Trial Chamber erred in fact by finding that the transfer of Cham as part of a broader transfer of the population could be considered discriminatory.Footnote 2551
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896. The Supreme Court Chamber notes that it has upheld the Trial Chamber's finding that the CPK targeted the Cham because of the Koh Phal and Svay Kleang rebellions in order to disperse them and to ease tensions.Footnote 2560 Thus, the Cham were targeted for dispersal based on being considered political enemies. The dispersal had the discriminatory consequence for the Cham of breaking up their communities.Footnote 2561 Therefore, the act of dispersing the Cham was properly considered by the Trial Chamber to be discriminatory and the actus reus of the crime against humanity of persecution on political grounds is established. KHIEU Samphân's argument is dismissed.
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b. Political Persecution of Other “Real or Perceived Enemies”
905. The Trial Chamber found that persecution on political grounds as a crime against humanity occurred against the targeted group of “real or perceived enemies of the CPK” at Tram Kak Cooperatives,Footnote 2583 Trapeang Thma Dam Worksite,Footnote 2584 1st January Dam Worksite,Footnote 2585 Kampong Chhnang Airfield Construction Site,Footnote 2586 S-21 Security Centre,Footnote 2587 Kraing Ta Chan Security Centre,Footnote 2588 Au Kanseng Security Centre,Footnote 2589 and Phnom Kraol Security Centre.Footnote 2590 While the targeted group of “real or perceived enemies of the CPK” could also include the Cham,Footnote 2591 the Trial Chamber's findings of political persecution related to the Cham were separately dealt with by the Trial Chamber and are separately dealt with in the section of this Judgment related to the treatment of the Cham.
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907. Before turning to the challenges related to political persecution at Tram Kak Cooperatives, Trapeang Thma Dam Worksite, 1st January Dam Worksite, S-21 Security Centre, and Au Kanseng Security Centre, the Supreme Court Chamber will address KHIEU Samphân's overarching argument that “real or perceived enemies of the CPK” is not a sufficiently discernible group such that it could be the target of persecution on political grounds.
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916. In Case 002/01, the Supreme Court Chamber explained that “[i]n particular in respect of [persons of certain ethnicity or nationality or persons representing certain social strata], they may be made the object of political persecution not because all, or even the majority, of their members hold political views opposed to those of the perpetrator, but because they are perceived by the perpetrator as potential opponents or otherwise as obstacles to the implementation of the perpetrator's political agenda.”Footnote 2626 The Supreme Court Chamber extensively analysed post-World War II jurisprudence and concluded in Case 002/01 that political persecution was understood as encompassing situations where the perpetrators designated targeted groups in broad strokes without inquiry into the political views held by the individuals concerned.Footnote 2627 It “thus confirm[ed] the possibility that persecution as a crime against humanity might target aggregated groups without any common identity or agenda.”Footnote 2628
917. The Supreme Court Chamber thus rejects KHIEU Samphân's argument that “real or perceived enemies of the CPK” is not sufficiently discernible since the specific categories of enemies were not exhaustive and expanded over time. As demonstrated from the Supreme Court Chamber's past jurisprudence on this issue, political persecution may occur where a group is broadly targeted because its members are perceived by the perpetrator to be political enemies. They need not consist of a single homogenous polity.Footnote 2629 As long as all members of the group are perceived to be political enemies, it does not matter whether they otherwise fall under different categories or whether these categories are exhaustive, as it is the designation of political enemy that has led to their targeting.
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ii. Tram Kak Cooperatives
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929. KHIEU Samphân submits that the Trial Chamber erred in finding that at Tram Kak, (1) New People received different rations; (2) working conditions were worse for New People; (3) working conditions were worse particularly in youth units; (4) New People were subjected to “miserable treatment”; and (5) New People were subject to surveillance and arrest.Footnote 2649 The Supreme Court Chamber notes that the Trial Chamber also found that New People were categorised separately from Base People; segregated from Base People in separate cooperatives or separate working groups; and treated as subordinate to Base People.Footnote 2650 These findings were not specifically challenged by KHIEU Samphân.
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948. In sum, the Supreme Court Chamber considers that the Trial Chamber erred in finding that it had been established beyond reasonable doubt that the working conditions for New People were worse than those of Base People, except for the fact that New People could not hold leadership positions or benefit from the better working conditions that came along with such positions, and that New People were targeted for arrest for innocuous thoughts, speech or conduct considered to be contrary to the revolution. It considers that the Trial Chamber did not err in finding that New People received less food than Base People, that the working conditions of New People were worse than those of Base People in that New People could not hold positions of authority and benefit from the better working conditions that came along with these positions, and that New People in particular suffered from miserable treatment.
949. The Supreme Court Chamber concludes that the underlying discriminatory acts of providing less food to New People, preventing New People from holding leadership positions, and subjecting New People to “miserable treatment”, together with the Trial Chamber's uncontested findings that New People were categorised separately from Base People, segregated from Base People in separate cooperatives or separate working groups, and treated as subordinate to Base People is sufficient to meet the gravity threshold to amount to persecution as a crime against humanity. These underlying acts must be considered cumulatively and in context,Footnote 2698 and in this regard the results of providing the New People with less food are relevant: New People in particular suffered and died from malnutrition.Footnote 2699 KHIEU Samphân's argument is dismissed.
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iv. 1st January Dam Worksite
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New People
961. KHIEU Samphân submits: (1) that the Trial Chamber erred in fact because there was no discrimination against New People at the 1st January Dam Worksite;Footnote 2731 (2) erred in law by asserting that there was a fundamental right to equal treatment;Footnote 2732 (3) erred in law and in fact by finding that the treatment violated the fundamental right of New People to equal treatment;Footnote 2733 and (4) erred in law by failing to set out the requisite level of gravity that needed to be met for the underlying acts to be characterised as persecution.Footnote 2734
962. The Co-Prosecutors respond that the Trial Chamber correctly determined there was discrimination at the 1st January Dam Worksite.Footnote 2735 They respond that KHIEU Samphân failed to explain how the Trial Chamber's reference to a fundamental right to equal treatment invalidates the decision; failed to demonstrate that the Trial Chamber erred in law or fact in finding that the treatment suffered by New People was a violation of a fundamental right; and failed to demonstrate that the Trial Chamber erred in its application of the gravity threshold for persecution.Footnote 2736 They argue that the Trial Chamber's finding of persecution was not grounded on a right to equal treatment but on the violation of multiple rights.Footnote 2737
963. Finding it to be dispositive, the Supreme Court Chamber will now address the argument concerning whether the Trial Chamber erred in finding that there was a fundamental right to equal treatment that had been violated. The Trial Chamber found that “[t]he CPK treatment of New People at the 1st January Dam infringed upon and violated their fundamental right to equal treatment.”Footnote 2738 The Trial Chamber did not explain what this right entails and did not examine whether such a right existed in Cambodia in 1975-1979. According to the ICCPR, which did not enter into force until 23 March 1976, and was not signed by Cambodia until 1980, the right to equal treatment refers to the right of all persons to be equal before the law and entitled to the equal protection of the law.Footnote 2739 The Trial Chamber did not analyse whether New People and Base People were considered equal before the law and made no findings in this regard.
964. The Supreme Court Chamber rejects the argument put forward by the Co-ProsecutorsFootnote 2740 that the Trial Chamber determined that the fundamental rights violated include the rights to life, personal dignity, liberty and security, and freedom from arbitrary or unlawful arrest. The Trial Chamber's legal findings on political persecution distinguish between New People and former Khmer Republic soldiers and officials:
(a) Paragraph 1688 of the Trial Judgment sets out the acts the Trial Chamber found to discriminate in fact against New People (part of the actus reus of persecution; the acts or omissions must also deny or infringe upon a fundamental right laid down in international customary or treaty law) and that they were deliberately perpetrated with the intent to discriminate (the mens rea).
(b) Paragraph 1689 states that the CPK's treatment of New People at the 1st January Dam Worksite infringed upon and violated their fundamental right to equal treatment (the rest of the actus reus requirement for persecution). It also contains the Trial Chamber's analysis of the gravity requirement for the acts to rise to the level of persecution. It makes the finding that “[a]lthough the acts found above to have been discriminatory against New People do not on their own amount to independent crimes, the actus reus of persecution is nevertheless established with regard to New People.”
(c) Paragraph 1690 then sets out the acts the Trial Chamber found to discriminate in fact against former Khmer Republic soldiers and officials (part of the actus reus of persecution) and finds that there was a specific intent to discriminate against them (the mens rea).
(d) Paragraph 1691 lists the fundamental rights that the Trial Chamber considered to be violated (the rest of the actus reus requirement for persecution) and contains the Trial Chamber's analysis of the gravity requirement for the acts to rise to the level of persecution.
965. Paragraph 1691 is somewhat ambiguous in its finding that “[a]cts committed against these groups of workers infringed upon or violated their fundamental rights pertaining to life, personal dignity, liberty and security and freedom from arbitrary or unlawful arrest […]”.Footnote 2741 Considering the separation between the Trial Chamber's analysis of the elements of persecution relating to New People and its analysis of the elements relating to former Khmer Republic soldiers and officials, as well as its finding in paragraph 1689 that the actus reus of persecution had been met, prior to its finding in paragraph 1691 concerning violation of the rights to life, personal dignity, liberty and security, and freedom from arbitrary or unlawful arrest, the Supreme Court Chamber interprets “these groups of workers” to refer only to Khmer Republic soldiers and officials.
966. As the Trial Chamber erred in finding that there was a fundamental right to equal treatment laid down in international customary or treaty law that had been infringed or violated, the Supreme Court Chamber upholds KHIEU Samphân's argument and reverses his conviction for political persecution against New People at the 1st January Dam Worksite. The remaining arguments relevant to this challenge need not be considered.
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3. Religious Persecution
a. Religious Persecution of the Cham
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iv. Whether the Persecutory Acts Discriminated in Fact
1027. KHIEU Samphân considers that the persecutory acts were applied equally to everyone and submits that they did not discriminate in fact as equal treatment cannot be characterised as indirect discrimination.Footnote 2887 He considers that the Trial Chamber erred by not focusing on whether measures applied indiscriminately to everyone but instead on only considering their impact on the Cham.Footnote 2888
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1030. It is this Chamber's considered view that the argument that there was no discrimination simply because the restrictions affected everyone fails to appreciate the intrinsic differences between the two groups, the Khmer Buddhists and Cham Muslims, who were both treated appallingly. Daily prayers, diet, dress, and language distinguished one group from the other.Footnote 2892 To offer pork to one may have been a welcome addition to a poor diet.Footnote 2893 To offer it to the other placed them in a difficult position as it was a prohibited foodFootnote 2894The closure of a wat or pagoda does not involve a betrayal of the Buddhist religion in the individual while the prohibition of attendance at the mosque for Friday prayers and the prohibition of daily prayers has a different effect on Muslims as it involves a deviation from fundamental Islamic culture. Similarly, the prevention of speaking one's own language when one's distinctive dress and religion is prohibited may take on more resonance than when prohibited in isolation.
1031. The forcing of pork on Cham who were displaced and broken up from their communities had a particular resonance absent in non-Cham. The introduction of a prohibited food into their diet had to be humiliating and abhorrent. They were obliged to betray their religion by eating the prohibited food or to starve.Footnote 2895 This act was specific to the Cham and amounted to discrimination in fact. It was a discriminatory act of significance in its effect on the Cham population which did not affect other displaced people. The forcing them to eat pork or pork soup was an assault on their religion, while the prohibition on the use of their language, an assault on their distinct culture, which considered cumulatively with their being prohibited from attending their mosques or praying daily amounted to discrimination in fact.
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vi. Whether There Was Intent to Discriminate on Religious Grounds
1037. KHIEU Samphân submits that the Trial Chamber erred in law and fact when it relied on its erroneous findings to infer discriminatory intent against the Cham “because of their religious and cultural practices”.Footnote 2905 He argues that the Trial Chamber found that the Cham were discriminated against as a political group, but, in the section of the Trial Judgment dealing with religious persecution, found that there was an intent to discriminate against the Cham based on religious grounds, without explaining why it had changed the basis of persecution.Footnote 2906
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1042. The clear evidence relied upon by the Trial Chamber cannot be ignored: that the restrictions on religious and cultural practices, intended to assimilate the Cham, lay behind the rebellions.Footnote 2915 Their identity as Cham with different religious practices and their taking guidance from their religious leaders and teachers, their way of life on or near rivers, not being either farmers or town people was at odds with the CPK common plan to eliminate differences in social class and create one homogenous Khmer race of peasant workers. The targeting of Cham people was because they were Cham with a different ethnic origins, language, religion and customs making them different from the majority Khmer.Footnote 2916 To eliminate their differences, their religion and religious practices were prohibited, and no allowances were made for their strict taboo of pork or pork productsFootnote 2917 or their requirement to pray five times daily.Footnote 2918 In the case of the Cham, it may be superficially difficult to distinguish between their targeting as enemies on political grounds because of the two rebellions in late 1975 or because they were Cham with different customs and especially a reactionary religion which had to be eradicated by integration into Khmer people as occurred during the pre-17 April 1975 period followed by the orders in 1977 for their extermination. The history of their increasingly strict targeting for discriminatory treatment and ultimately their total purging is evidence of the real purpose for their proposed targeting: because they were not Khmer. This infinitely more serious targeting does not detract from the facts of the lesser forms of discrimination against them for religious reasons which started in the Khmer Rouge takeover of Kroch Chhmar and its environs and continued thereafter.Footnote 2919 This Chamber concludes that the Trial Chamber's inference of an intent to discriminate on both political and religious grounds was reasonable.
1043. The Supreme Court Chamber considers that KHIEU Samphân has merely proposed a different interpretation of the evidence by failing to accept the difference between the levelling down of all society to worker peasants subject to the same deprivation and the specific actions to exclude Cham from Khmer society. KHIEU Samphân has failed to demonstrate that the Trial Chamber erred in fact in making its finding that the Cham were specifically targeted as a religious group. This challenge is therefore dismissed.
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vii. Whether the Threshold of Severity Was Established
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1048. While it is regrettable that the Trial Chamber did not clearly articulate the appropriate analysis of whether the religious and cultural restrictions “rise to the same level of gravity or seriousness”Footnote 2926 as other underlying offences for crimes against humanity, but instead confused the issue by referring to the other crimes committed against the Cham, it is apparent to the Supreme Court Chamber that the religious and cultural restrictions do indeed rise to the requisite level of gravity to constitute a crime against humanity. The religious and cultural restrictions not only denied the fundamental right to freedom of religion but also destroyed the Cham's very identity. They caused the Cham to lose the characteristics that made them Cham, and even caused them lose the capacity to pass on their religious identity to future generations, forever destroying a piece of their religious heritage.Footnote 2927 The requisite level of severity has thus been established for the persecutory acts to amount to the crime against humanity of religious persecution. The Trial Chamber's error in analysing the severity of the acts does not invalidate KHIEU Samphân's conviction for the crime of religious persecution.
b. Religious Persecution of Buddhists and Buddhist Monks
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ii. Alleged Absence of Discriminatory Treatment against Buddhist Monks and Buddhists in General
1064. As previously discussed, and similar to his arguments regarding the religious persecution against the Cham at the 1st January Dam Worksite and throughout Cambodia,Footnote 2972 KHIEU Samphân submits that the Trial Chamber erred in law in characterising undifferentiated treatment that has a particular impact on a class of individuals as discrimination in fact and by considering the impact on Buddhists of measures meant to apply to everyone.Footnote 2973 He argues that the acts perpetrated against Buddhist monks do not amount to discrimination in factFootnote 2974 and that there is no de facto discrimination or discriminatory intent with regard to Buddhists in general since they were subjected to the same regulations as the general population.Footnote 2975
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Whether the Persecutory Acts against Buddhist Monks Discriminated in Fact
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1070. In light of the religious persecution of Buddhist monks, the Supreme Court Chamber notes that the general prohibition of religion and religious practice was effected through a multitude of measures aimed at assimilating the population into a single atheistic and homogenous group, regardless of the religious group.Footnote 2986 As a result, the forced disrobing of Buddhist monks was related to this objective, implying that nobody could teach, become a monk, wear robes or practice religion. Nevertheless, the Supreme Court Chamber finds that Buddhist monks were not solely targeted in order to assimilate them with the rest of the population. The CPK policies conspicuously were orchestrated to abolish religion and religious practices, as the CPK was aware of the centrality of Buddhism and the influence of monks on Cambodian traditions and daily life.
1071. The Supreme Court Chamber notes that Buddhist monks were also specifically identified and targeted because of their “special” status in society. This approach is evidenced by numerous references to them as “worms” or “leeches”,Footnote 2987“[t]he petty bourgeoisie […] who give up monkhood” as an easy source to be “convinced by enemies”,Footnote 2988 but also as a “special class” in the sense that, although monks were similar to peasants in some respects, “they do not labour in crop production by themselves, they live with support from all […] other classes”, “[t]hey depend economically on the peasants to support their livelihood” and high-ranking monks are connected to the “upper stratum”, which set them apart in a different category.Footnote 2989 Other CPK documents describe the monks with good and bad points, noting nonetheless that most monks “do not work hard”Footnote 2990, that their situation could also be similar to the police and soldier class, intellectual class and various ethnic classes.Footnote 2991 Similarly, a policy document dated 22 September 1975 stated that “from 90 to 95 percent of [monks] abandoned their monkhood”, and that “this special layer [of the society] will no longer cause any worry”.Footnote 2992 Buddhism was incompatible with the revolution because it had been an instrument of exploitation.Footnote 2993 Finally, according to KAING Guek Eav alias Duch, POL Pot further explained during the CPK's anniversary meeting in September 1978 that the Party was trying to “eliminate” Buddhism and the way to do this was to make monks build dams and blend together with the popular masses.Footnote 2994 In light of the foregoing, the Supreme Court Chamber finds that the CPK specifically targeted Buddhist monks because they were monks.
1072. In addition, the Supreme Court Chamber is satisfied that, while acts of persecution against Buddhist monks overlap with the general prohibition of religious practices, these were conducted in a discriminatory manner. This Chamber also finds that these persecutory acts resulted in discriminatory consequences as the role of monks was abolished and their status in society was lowered.Footnote 2995 The Supreme Court Chamber concludes that Buddhist monks were subjected to discrimination and thus such discriminatory conduct amounts to persecution on religious grounds. This challenge is accordingly dismissed.
4. Racial Persecution
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1080. The Trial Chamber found that the crime against humanity of racial persecution of Vietnamese was established at Tram Kak Cooperatives, S-21 Security Centre, Au Kanseng Security Centre, and in Prey Veng and Svay Rieng.Footnote 3013 It found that this crime was committed as part of a policy of targeting Vietnamese “for adverse treatment throughout the DK period (in particular, for deportation before April 1977 and for destruction as a racial group thereafter)”, because the Vietnamese were considered to be “the DK's most dangerous enemy”.Footnote 3014 KHIEU Samphân alleges that racial persecution did not occur at any of the above-mentioned sites. His arguments will be addressed in turn.
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iii. Whether the Acts Were Discriminatory in Fact
1113. According to KHIEU Samphân, the Trial Chamber erred by failing to establish that the Vietnamese were targeted on the basis of their race. He argues that there were numerous grounds for arrest during the DK era, and that some witnesses explained that their Vietnamese family members may have been targeted for other reasons, as a result of their past activities.Footnote 3123
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1116. The Supreme Court Chamber observes that KHIEU Samphân has argued only that the Trial Chamber failed to explain why and how the persecutory acts targeted the Vietnamese.Footnote 3126 Although the Trial Chamber did not explicitly address why it considered the deportation of Vietnamese from Prey Veng, the killings of Vietnamese in Svay Rieng, and the above-mentioned arrests to have targeted the Vietnamese in the section of the judgment dealing with racial persecution in Prey Veng and Svay Rieng, this finding must be considered in context. The Trial Chamber found that there was a nationwide CPK policy targeting the Vietnamese and calling for their expulsion, and, from April 1977, for their destruction.Footnote 3127 In this context, it was entirely reasonable for the Trial Chamber to conclude that the deportation, killings, and arrests of Vietnamese were due to their race.
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G. OTHER INHUMANE ACTS AS CRIMES AGAINST HUMANITY
1122. The Trial Chamber found that KHIEU Samphân committed, through a JCE, the crimes against humanity of other inhumane acts through attacks against human dignity and conduct characterised as enforced disappearances, forced transfer, forced marriage, and rape within the context of forced marriage.Footnote 3142
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1126. KHIEU Samphân submits that the Trial Chamber erred in law in its assessment of the legality of other inhumane acts, in its finding concerning enforced disappearances as other inhumane acts, and in findings concerning forced marriage and rape in the context of forced marriage. These arguments will be addressed in turn.
1. Assessing the Legality of Other Inhumane Acts
a. The Trial Chamber's Assessment of the Principle of Legality
1127. KHIEU Samphân submits that the Trial Chamber did not perform a rigorous examination of the principle of legality but merely concluded without reason that it was both foreseeable and accessible in general, that other inhumane acts were punishable as crimes against humanity by 1975.Footnote 3155 He argues that it is not enough to say that other inhumane acts were foreseeable since this category can cover numerous types of behaviour; instead, the Trial Chamber should have identified the conduct at issue and examined whether it could have been defined as criminal at the time.Footnote 3156
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1130. The Supreme Court Chamber considers that KHIEU Samphân misunderstands the application of the principle of legality with regard to other inhumane acts and its previous jurisprudence on this issue. What is required is that the category of other inhumane acts be foreseeable and accessible to the Accused. If the category of other inhumane acts is interpreted and applied properly, keeping in mind the safeguards discussed below, foreseeability and accessibility are ensured.Footnote 3161 There is no requirement that the underlying conduct be criminalised at the relevant time.Footnote 3162
1131. In Case 002/01, the Supreme Court Chamber explained that the ejusdem generis principle provides an essential safeguard by requiring that the underlying conduct considered to amount to an other inhumane act be of a similar nature and gravity to the enumerated crimes against humanity.Footnote 3163 The Supreme Court Chamber in Case 002/01 explained that the requirement that the underlying conduct cause serious mental or physical suffering or injury or constitute a serious attack on human dignity was another limitation that adequately circumscribes this category of crime.Footnote 3164 Finally, the Supreme Court Chamber explained that it subscribed to the approach taken by the ICTY Kupreškić Trial Chamber of “relating ‘other inhumane acts’ to conduct infringing basic rights appertaining to human beings, as identified under international legal instruments” as another limitation on the interpretation of other inhumane acts.Footnote 3165 These limitations together circumscribe the conduct that can be properly considered to amount to an other inhumane act, such that the requirements of foreseeability and accessibility are satisfied.
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b. Alleged Requirement to Breach a Prohibition in Human Rights Instruments to Amount to an Other Inhumane Act
1134. KHIEU Samphân submits that the Supreme Court Chamber has agreed with ICTY jurisprudence which seeks to establish potential unlawfulness of the acts at the time of commission.Footnote 3169 He argues that the Trial Chamber erred by providing a “simple evocation of the fundamental rights included in instruments at the time” when it should have analysed these human rights instruments to identify prohibitions, to determine formal unlawfulness.Footnote 3170 He submits that the Kupreškić Trial Chamber considered international texts to establish basic human rights whose violation may constitute a crime against humanity, but the Stakić Trial Chamber rejected this approach as rights contained in international instruments do not necessarily amount to norms recognised in international criminal law.Footnote 3171 He argues that the Supreme Court Chamber in Case 002/01 seemed to establish a compromise between these two positions, by specifying that in addition to considering rights, it is also necessary to identify prohibitions contained in human rights instruments.Footnote 3172 He considers that the International Co- Investigating Judge investigating Cases 003 and 004 also subscribed to this approach.Footnote 3173
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1137. The Supreme Court Chamber finds that KHIEU Samphân has again misinterpreted this Chamber's jurisprudence in Case 002/01. In that case, as explained above, this Chamber subscribed to the approach taken by the ICTY Kupreškić Trial Chamber of “relating ‘other inhumane acts’ to conduct infringing basic rights appertaining to human beings, as identified under international legal instruments”.Footnote 3180 The Supreme Court Chamber explained that this “introduces a requirement of formal international unlawfulness and, in this way, a further limitation on a blanket authorisation to interpret ‘other inhumane acts’”, which would assist in ensuring foreseeability.Footnote 3181 This Chamber in Case 002/01 reiterated that it is not required that the specific conduct must be expressly criminalised under international law, as this would render the concept of other inhumane acts as a residual category futile and ineffective. This Chamber stated that:
Rather, the ‘formal unlawfulness’ requirement is to be achieved by identifying affirmative articulation of rights and prohibitions contained in human rights instruments, applicable at the time relevant for charges of ‘other inhumane acts’.Footnote 3182
The Supreme Court Chamber then referred to the prohibitions contained in Article 3 common to Geneva Conventions and the rights protected by the Universal Declaration of Human Rights (“UDHR”) as examples relevant for the case at hand.Footnote 3183
1138. The Supreme Court Chamber did not state that prohibitions contained in human rights instruments must be identified in addition to rights. This Chamber in Case 002/01 made clear that “the principle of nullum crimen sine lege certa is respected if the specific conduct which is found to constitute other inhumane acts violates a basic right of the victims and is of similar nature and gravity to other enumerated crimes against humanity.”Footnote 3184 The Kupreškić Trial Chamber did not make such a distinction between rights and prohibitions.Footnote 3185 Nor did the Katanga & Ngudjolo Chui Pre-Trial Chamber, which also followed this approach.Footnote 3186 The International Co Investigating Judge, who was deciding on a request for investigative action into conduct alleged to amount to forced pregnancy and forced impregnation, stated that “there must be a customarily accepted standard tied to the appropriate human right by which the inhumanity of the act is judged.”Footnote 3187 He was unable to find that there was a clear human rights standard concerning forced pregnancy by 1975 and therefore did not consider that it amounted to an other inhumane act at the time, and declined the request for investigative action.Footnote 3188 The International Co-Investigating Judge's approach merges the assessment required to identify a distinct criminal prohibition based on custom with the approach to be used when assessing the specificity of conduct charged within the crime of other inhumane acts. The assertion that there must be a “customarily accepted standard” against which to benchmark conduct within the crime of other inhumane acts, which rests upon one academic text in the International Co-Investigating Judge's decision,Footnote 3189 cannot be supported. As noted above, the purpose of the crime of other inhumane acts is to enable the prosecution of grave conduct which is not already criminalised as distinct crimes against humanity at the time in question. It would be illogical to require that an assessment of conduct for these purposes be so stringent.
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3. Forced Marriage and Rape in the Context of Forced Marriage
a. The Legality of Forced Marriage and Rape in the Context of Forced Marriage as the Crimes Against Humanity of Other Inhumane Acts
…
1174. KHIEU Samphân challenges the legality of forced marriage and rape in the context of forced marriage, as other inhumane acts. He challenges findings on: (1) the charged conduct of forced marriage, and the definition of rape; (2) “formal international unlawfulness”, that is, the identification of violated basic rights; (3) the application of the principle of ejusdem generis; and (4) the legality of the charged conduct of forced marriage under Cambodian law before the DK regime.Footnote 3285 These arguments are considered in turn below.
i. Forced Marriage
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The Conduct of Forced Marriage
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1185. The Supreme Court Chamber notes that, while other international criminal courts provide a range of descriptions of conduct that constitutes forced marriage, there is emerging consensus on the nature and essence of forced marriage to encompass a forced conjugal association. This Chamber finds that the acts of forcibly marrying males and females violated the basic rights of physical integrity and human dignity applicable in 1975-1979 and are of comparable gravity to the enumerated crimes against humanity. While forced marriage has occurred and continues to occur during conflict time, most commonly as committed by male perpetrators against female victims,Footnote 3313 there is no limit to the understanding of the conduct to this fact pattern. Given that this conduct is not an independent crime, but is charged as other inhumane acts, it is difficult to adequately exemplify definitive ways in which it is perpetrated during conflict. This Chamber concludes that victims of forced marriage include both males and females.
“Formal International Unlawfulness”
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1195. The alleged conduct of forced marriage in this case also included forced sexual intercourse with regard to both female and male victims. While this Chamber in Case 001 found that rape was not established as an independent crime against humanity in 1975 1979,Footnote 3331 it did so because it was not until reports of widespread or systematic rape in the early 1990s that the elements of rape as a crime against humanity crystallised. Between 1975-1979, the underlying conduct of forced sexual intercourse was, at a minimum, internationally recognised as a violation of basic rights. Furthermore, forced sexual intercourse is a form of cruel, inhuman and degrading treatment that is prohibited under international law and in Cambodia, which joined the UN in 1955 and ratified the Geneva Conventions in 1958.Footnote 3332 Forced sexual intercourse, like forced marriage, certainly violates privacy and physical autonomy. This Chamber thus concludes that this conduct, properly described as forced sexual intercourse in the context of forced marriage, fell within the scope of crimes against humanity of other inhumane acts.
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ii. Rape in the Context of Forced Marriage
1214. The Trial Chamber determined that there was no requirement that rape as a specific kind of underlying conduct had been expressly recognised as falling within the category of other inhumane acts by 1975.Footnote 3369 The Trial Chamber considered the Closing Order allegation that the Accused was charged with the crime against humanity of other inhumane acts through conduct characterised as rape in the context of forced marriage.Footnote 3370 The Trial Chamber considered that the Closing Order alleged that, by imposing the consummation of forced marriage, the perpetrators intended to commit a physical invasion of a sexual nature against a victim in coercive circumstances in which consent was absent.Footnote 3371 As noted by the Trial Chamber, in Case 001, the Supreme Court Chamber held in Case 001 that rape required the sexual penetration, however slight, of: (1) the vagina or anus of the victim by the penis of the perpetrator or any other object used by the perpetrator; or (2) the mouth of the victim by the penis of the perpetrator; where such sexual penetration occurs without the consent of the victim.Footnote 3372 The Trial Chamber concluded that men fell outside this definition, and stated that it would consider, in the alternative, whether men were subjected to another form of sexual violence amounting to other inhumane acts,Footnote 3373 which was additionally charged in the Closing Order.Footnote 3374
The Definition of Rape
1215. KHIEU Samphân submits that the Trial Chamber erred in applying the definition of rape which was established by the Supreme Court Chamber in Case 001 when identifying the elements of the crime of rape in 1975, rather than applying a different definition applicable to conjugal rape.Footnote 3375 He argues that the Trial Chamber ignored the fact that conjugal rape was not a crime in Khmer society in 1975,Footnote 3376 and it is still not expressly addressed and established in Cambodian law.Footnote 3377 He further contends, citing various civil and common law jurisdictions, that numerous countries have different definitions for rape that is committed in a conjugal context.Footnote 3378 According to KHIEU Samphân, the Trial Chamber committed an error of law by applying a “classic” definition of rape to the facts alleged.Footnote 3379
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1219. This Chamber recalls that as previously outlined, there was no obligation to consider whether an independent crime against humanity was established by the charged conduct.Footnote 3384 The Trial Chamber set out the applicable law, noting that:
none of these categories of conduct had crystallised as independent crimes against humanity by1975, and they are not charged here as such. The Chamber must accordingly assess all such conduct against the definition of other inhumane acts. In order to carry out such assessment, the Chamber's task is facilitated by setting out its understanding of the constituent elements of such conduct, where it is determined necessary to ensure proper analysis.Footnote 3385
The only relevant crime is the crime of other inhumane acts itself, which the Trial Chamber considered to have long been established under customary international law.Footnote 3386 The Trial Chamber correctly stated this standard, finding that there was no requirement that rape, as a specific kind of underlying conduct, was expressly recognised as a crime by 1975.Footnote 3387 Despite correctly stating the standard, the Trial Chamber did not apply it properly. Instead, it sought to identify the “elements” of the crime of rape, as if the charged conduct had to also amount to an independent crime. This Chamber considers an attempt to identify “elements” for conduct within the scope of other inhumane acts to be legally misguided and anachronistic.Footnote 3388 The rationale for the crime of other inhumane acts is to capture conduct which is not independently criminalised: therefore, it would be illogical to seek to identify criminal elements of such conduct.
1220. The Supreme Court Chamber determines that the Trial Chamber erred in its identification of the elements of rape in its analysis. Rather, the Trial Chamber should have only considered whether the charged conduct had occurred in fact and whether this conduct otherwise met the elements of the crime of other inhumane acts. As a result, KHIEU Samphân's claim that the Trial Chamber should have found different elements, specifically those of the crime of “conjugal rape”, is rendered moot.Footnote 3389 In order to correct the Trial Chamber's error, this Chamber will accordingly identify the charged conduct.
1221. The Co-Investigating Judges considered that, based on the factual findings made in the “Marriage” section of the Case 002 Closing Order, the legal elements of the crime of against humanity of rape had been established in the context of forced marriage.Footnote 3390 The Co- Investigating Judges found that 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.Footnote 3391 Consummation of marriage was regularly monitored by CPK cadres and couples who refused to consummate the marriage would be arrested.Footnote 3392 The mens rea was that the perpetrators intended the physical invasion of a sexual nature, with the knowledge that it occurred in coercive circumstances or without the consent of the victim.Footnote 3393 The Co-Investigating Judges concluded that, “[b]ased 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.”Footnote 3394
1222. The formulation outlined in the Closing Order, then, heralds the incorrect approach adopted by the Trial Chamber, focusing on the “elements” of crimes, rather than the conduct of forced consummation. The Closing Order was, however, clearly amended on this point by the Pre-Trial Chamber.Footnote 3395 The Pre-Trial Chamber held that while rape had long been prohibited as a war crime, it was not enumerated as a separate crime against humanity from 1975-1979.Footnote 3396 Accordingly, the Pre-Trial Chamber found that the Co-Investigating Judges erred in charging rape as an enumerated crime against humanity, but upheld the Co- Investigating Judges' finding that “the facts characterised as crime against humanity in the form of rape can be characterised as crimes against humanity of other inhumane acts and therefore are to be charged as such.”Footnote 3397 While the Trial Chamber referred to the change in Closing Order in a footnote,Footnote 3398 it appears to have followed the Closing Order's language in its unamended form.
1223. The primary conduct which underpins the charge of rape and sexual violence in the Closing Order is the forced consummation of marriage, in other words, a forced act of sexual intercourse between a forcibly married man and woman. The coercive circumstances as charged are demonstrated by the fact that, immediately after the ceremony, couples reported that they were relocated to an area whereby the consummation of marriage was monitored by CPK cadres.Footnote 3399 Other witnesses reported a fear of physical violence, imprisonment, or even death if they failed to consummate their marriages.Footnote 3400 A coercive atmosphere was also established by the forced marriages themselves which, as outlined above, took place in a situation in which individuals feared death or other forms of punishment.
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iii. Conclusion
1246. The Supreme Court Chamber has considered and dismissed KHIEU Samphân's challenges to the Trial Chamber's findings on the legality of forced marriage as an other inhumane act. With regard to the Trial Chamber's findings on the legality of “rape” and “other acts of sexual violence”, the Supreme Court Chamber has determined that the Trial Chamber erred in identifying and defining the elements of crimes for conduct within the crime of other inhumane acts. This Chamber has concluded that the charged conduct is forced sexual intercourse in the context of marriage, and clarifies that this conduct is charged equally to both men and women, and that this conduct properly described as forced sexual intercourse in the context of forced marriage, fell within the scope of the crime against humanity of other inhumane acts. It has otherwise considered and dismissed all of KHIEU Samphân's challenges in relation to the legality of this conduct.
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Forced Sexual Intercourse in the Context of Forced Marriage
1341. The Trial Chamber found that after the wedding ceremonies, arrangements were usually made by the local authorities for newly wedded couples to sleep in an assigned location specifically to have sexual intercourse.Footnote 3779 Militiamen were commonly ordered to monitor the couples at night to ensure that they had sexual intercourse.Footnote 3780 Both men and women felt compelled to engage in sexual intercourse, and couples who were discovered not to have engaged in sexual intercourse were re-educated or threatened with being killed or receiving punishment.Footnote 3781 In certain instances, rape was used as punishment for failure to consummate a marriage.Footnote 3782 Couples who did not consummate their marriage had to hide the fact and pretend that they loved each other to avoid negative consequences.Footnote 3783
1342. KHIEU Samphân challenges the conclusion that forced sexual intercourse took place pursuant to any policy,Footnote 3784 as well as the findings on monitoring of forced consummation,Footnote 3785 acts of “rape” as punishment,Footnote 3786 and the fact that there was a lack of evidence, in some cases, of an express statement of coercion to consummate the marriages.Footnote 3787 He also argues that the Trial Chamber's analysis of concealment of forced consummation shows numerous legal and factual errors.Footnote 3788
1343. The Supreme Court Chamber recalls that it has found above that the Trial Chamber erred in directing itself to consider whether the elements of rape as an independent crimes were established, and in having found that men could not be victims of rape or other acts of sexual violence.Footnote 3789 This Chamber has, furthermore, found that the Trial Chamber should, instead, have considered only whether the conduct which was described in the Closing Order was established. This conduct was, in this case coerced sexual intercourse between forcibly married couples, involving both male and female victims. This Chamber will consider, throughout consideration of KHIEU Samphân's challenges below, whether the Trial Chamber's error impacted its assessment of other factual findings, and, if necessary, will correct any consequential errors.
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ii. Forced Marriage
1439. KHIEU Samphân raises a number of challenges to the Trial Chamber's findings on the conduct of forced marriage. He argues, first, that the Trial Chamber erred in the findings it made on the actus reus of forced marriage, pointing to the factual distinction between arranged marriage and forced marriage, as well as the findings on non-consent.Footnote 4064 Second, he argues that the Trial Chamber erred in failing to consider the context of arranged marriage in its assessment of seriousness.Footnote 4065 Third, he challenges various of the Trial Chamber's findings on serious mental or physical suffering caused to individual civil parties and witnesses.Footnote 4066 These arguments will be considered in turn below.
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Male Victimes: The Co-Prosecutors' Appeal
1534. The Trial Chamber considered “the mental and physical suffering inflicted upon those individuals who were raped as part of the requirement that marriage would be consummated, and that such acts were performed intentionally.”Footnote 4363 It found that considered holistically, this conduct was of a similar gravity to other enumerated crimes against humanity, and that the actus reus of other inhumane acts through conduct characterised as rape in the context of forced marriage was therefore established.Footnote 4364 The Trial Chamber held, however, that while men were also unable to refuse to consummate the marriage, there was not “clear evidence concerning the level of seriousness of this kind of conduct and of its impact on males”.Footnote 4365 Accordingly, “while acknowledging that men were subjected to sexual violence that was contrary to human dignity,” the Trial Chamber was unable to reach a finding on the seriousness of the mental and physical suffering suffered by these men.Footnote 4366
1535. The Co-Prosecutors challenge the Trial Chamber's conclusion that forced consummation in the case of male victims did not meet the threshold for the crime of other inhumane acts. They argue that the Trial Chamber made legal and factual errors in its findings with respect to the evidence of mental and physical suffering on the part of men.Footnote 4367 They also argue that the Trial Chamber erred in concluding that, while men were subjected to sexual violence that was contrary to human dignity, it was unable to determine the seriousness of their suffering and, consequently, was unable to conclude that men were victims of the crime against humanity of other inhumane acts.Footnote 4368 They submit that these legal and factual errors invalidated the decision and resulted in a miscarriage of justice.Footnote 4369 The Co-Prosecutors request that the erroneous finding be set aside, and that the conviction for the crime of other inhumane acts be corrected to include sexual violence against male victims.Footnote 4370
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b) Serious Mental or Physical Harm or Suffering
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1552. This Chamber concludes that the men who experienced forced sexual intercourse were, quite rightly, found by the Trial Chamber to have been “subjected to sexual violence”.Footnote 4410 In the present case, the Trial Chamber concluded that it was “unable to reach a finding on the seriousness of the mental and physical suffering”, due to the “absence of clear evidence.”Footnote 4411 This Chamber observes that the Trial Chamber appears to misapply the standard for other inhumane acts. The actus reus requires an act or omission that caused serious mental or physical suffering; it does not require that both mental and physical suffering be established.Footnote 4412
1553. The Supreme Court Chamber also finds the Trial Chamber's reference to requiring “clear evidence” to be unclear. First, it is noteworthy that the Trial Chamber relied on identical findings of fact, the occurrence of forced sexual intercourse, to find that female victims had experienced serious mental or physical suffering or injury.Footnote 4413 “Newly married couples” were placed in an assigned location to have sexual intercourse after marriage, where they were monitored by armed militia.Footnote 4414 It held that “both” men and women felt compelled to have sexual intercourse with their new spouses;Footnote 4415 and “couples” who were found not to have had sexual intercourse were re-educated or threatened with being killed or punished.Footnote 4416 While the Trial Chamber considered evidence where women had additional coercive experiences, whether through sexual violence committed by their husbands, or by third parties,Footnote 4417 the overall finding was that both men and women were coerced into sexual intercourse.
1554. This Chamber particularly notes, in this regard, that the Trial Chamber did not make findings demonstrating that all female victims had experienced physical harm. Earlier in its legal analysis, the Trial Chamber considered some features of penetrative sex which were distinctive to women. It found that while in-court statements were not always explicit in describing penetration, “circumstances such as the pain, the bleeding for a long time thereafter, or the explicit reference to forced penetration allow the Chamber to conclude that such penetration occurred.”Footnote 4418 These findings are, however, focused around the occurrence of the act of penetration, and not the harm itself. This Chamber recalls that what is required is physical or mental harm, and considers, therefore, that there is no requirement that physical harm must occur for the crime of other inhumane acts to be established for victims of either gender. This Chamber finds it impossible to envisage how non-consensual sexual intercourse would not be, at a minimum, mentally harmful.
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1563. In light of the above, the Supreme Court Chamber finds that no reasonable trier of fact could have concluded that serious physical and mental harm or suffering was not established in the case of male victims of forced sexual intercourse. The Trial Chamber's finding of fact is reversed insofar as it relates to male victims of forced sexual intercourse.
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c) Human Dignity
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1584. For all of these reasons, this Chamber concludes that the Trial Chamber's approach demonstrates a degree of error. The Supreme Court Chamber, consequently, overturns the Trial Chamber's finding and enters its own finding that male victims of the policy of forced consummation of marriage, were, at minimum, seriously mentally harmed when they were forced to have sexual intercourse.
1585. This Chamber has also considered whether the human dignity of male victims was seriously breached by the act of forced sexual intercourse. This evaluation was not strictly necessary, because the Trial Chamber was not obliged to conduct analyses of both serious mental or physical harm or suffering, and a serious breach of human dignity. Nonetheless, however, given the extent of the Trial Chamber's errors when it came to assessing serious mental or physical suffering or injury, this Chamber considered it important to also appraise the Trial Chamber's approach to this matter.
1586. The Trial Chamber failed to conduct an independent evaluation of human dignity, as it was required to do when it found that serious mental or physical suffering or injury was not established. Instead, the Trial Chamber appeared to adopt the standard in relation to which a finding of harm to human dignity is deemed insufficient to establish the crime. This was an error. The Supreme Court Chamber has further found, on evaluation of the facts, that the conduct in question very clearly amounted to a serious breach of human dignity. This Chamber observes that this conclusion is generally applicable also to female victims. Both men and women experienced serious humiliation and degradation in being forced to copulate on demand, at risk of immediate physical harm at the hands of armed militia, and/or other acts of physical harm or death. Some women also experienced the specific harm of being sexually violated by their husbands. This Chamber has also considered, however, that male victims experienced a further, specific harm at being forced to penetrate, and thus victimise, another person. Being the tool of sexual violence, as well as the victim of it, is a serious breach of human dignity.
1587. This Chamber has found no error in the Trial Chamber's conclusion that the conduct charged as forced marriage was established, and that it caused serious mental and physical suffering of similar gravity to other crimes against humanity.Footnote 4476 All of KHIEU Samphân's submissions on these points are dismissed.
1588. The Supreme Court Chamber has also considered KHIEU Samphân's challenges to the Trial Chamber's finding that female victims being forced to consummate their marriages amounted to the crime of rape, established serious mental and physical suffering, and was of a similar gravity to other crimes against humanity.Footnote 4477 The Supreme Court Chamber has held that the Trial Chamber erred in directing itself to consider whether the “elements” of rape were established. This Chamber has clarified that the findings of fact are essentially gender-neutral, in that both male and female victims were forced to have sexual intercourse, in order to consummate their marriages. While women may have experienced specific coercive threats, including sexual violence by their husbands or other men, these acts did not form part of the charged conduct, but instead, part of the coercive environment. Males and females were both victims of the charged conduct: the fact that one was forced to penetrate, and one was forced to be penetrated, is immaterial.
1589. The Supreme Court Chamber has rejected all of KHIEU Samphân's challenges to the Trial Chamber's findings on the victims identified as female victims. It has found that the Trial Chamber reasonably considered the context of forced marriage, and properly appraised evidence of serious mental or physical harm or suffering. This Chamber has, however, found that the Trial Chamber erred in failing to properly recognise SOU Sotheavy's identity as a transgender woman. The Supreme Court Chamber has summarised SOU Sotheavy's evidence as to the acute harm she experienced,and has made the finding that this civil party should be considered as part of the universe of female victims of the policy of forced consummation.
1590. The Supreme Court Chamber has upheld, in full, the Co-Prosecutors' appeal to the Trial Chamber's finding that there was no sufficient evidence of serious mental or physical harm or suffering on the part of the male victims who were forced to consummate their marriage. The Trial Chamber reached a conclusion no reasonable trier of fact could have reached, and also failed to provide a reasoned opinion. Particularly prominent as an error in its assessment was the different treatment of men and women with regard to identical factual circumstances. The Trial Chamber also made unreasonable findings on the evidence and failed to consider direct relevant evidence. This Chamber has also held that the Trial Chamber erred in failing to consider whether human dignity had been seriously breached in light of its negative finding on physical or mental suffering or injury. This Chamber has, furthermore, found that forcing individuals to have sexual intercourse amounted to a serious breach of human dignity. This conclusion applied to both male and female victims, albeit with distinctive elements applicable to each.
1591. The Supreme Court Chamber recalls that, according to Rule 110 (4), in the case of appeal by the Co-Prosecutors, this Chamber has the power to modify the findings of the Trial Chamber's decision if it deems them erroneous but cannot modify the disposition of the Trial Judgment. This Chamber sets aside the Trial Chamber's finding that the crime of other inhumane acts as a crime against humanity was not established with regard to male victims. The Supreme Court Chamber enters a new finding that male victims who were forced to have sexual intercourse in the context of forced marriage experienced at a minimum serious mental harm, and also a serious attack on human dignity. KHIEU Samphân's conviction for conduct amounting to forced sexual intercourse in the context of forced marriage as an other inhumane act is otherwise upheld.Footnote 4478
H. GENOCIDE
1. Genocide of the Vietnamese
1592. The Trial Chamber found that the crime of genocide, including its actus reus and mens rea, by killing members of the Vietnamese group was established.Footnote 4479
1593. KHIEU Samphân disputes the Trial Chamber's findings on genocide, challenging its conclusions that both the actus reus and mens rea had been established.Footnote 4480
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ii. Whether the Intent Was to Destroy the Protected Group in Whole or in Part
…
1635. The evidence presented to the Trial Chamber amply demonstrated that all Vietnamese located in Cambodia were specifically targeted for destruction, thus constituting a “distinct entity which must be eliminated as such.” Their intended destruction would, if successful, have resulted in the annihilation of all Vietnamese from Cambodia. Given the size of the Vietnamese community in Cambodia, its total elimination would amount to a destruction “in part” of the larger Vietnamese group, one that can be considered “substantial.”
1636. The Supreme Court Chamber is thus not persuaded by the contention of KHIEU Samphân that the total number of Vietnamese killed in Cambodia is insufficient to establish that “a substantial part of the group of ethnic Vietnamese was targeted.”Footnote 4561 When considering the mens rea for genocide, the reference to the destruction of a group “in whole or in part” relates to the intent of the perpetrator rather than the result that is actually achieved.Footnote 4562 Thus, the destruction of a group is not required for an offense to qualify as genocide. A large number of victims can indeed serve to demonstrate the requisite intent, although there is no numerical threshold that must be met. In light of these conclusions, KHIEU Samphân's submission is rejected in this regard.
1637. For the foregoing reasons, the evidence presented to the Trial Chamber supported its conclusion of a specific intent to destroy “the Vietnamese group, as such.” Similarly, the evidence supports the conclusion that the intent involved was to destroy the group “in whole or in part.” The Supreme Court Chamber thus discerns no error in the Trial Chamber's determination that “the mens rea of the crime of genocide by killing is established.”Footnote 4563
1638. Having discerned no error in the Trial Chamber's findings and rulings with respect to both the actus reus and the mens rea of the crime of genocide, the Supreme Court Chamber affirms the Trial Chamber's determination that “the crime of genocide by killing members of the Vietnamese group is established.”Footnote 4564
VIII. ALLEGED ERRORS RELATING TO INDIVIDUAL CRIMINAL RESPONSIBILITY
A. KHIEU SAMPHÂN'S ROLES AND FUNCTIONS
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2. President of the State Presidium
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b. Roles and Responsibilities
1649. The Trial Chamber held that KHIEU Samphân's role as Chairman or President of the State Presidium entailed two main tasks: performing diplomatic and ceremonial functions,Footnote 4590 and making speeches.Footnote 4591 The Trial Chamber concluded that “[i]n accordance with the largely symbolic nature of the role […] KHIEU Samphan's responsibilities as part of this role were mostly confined to diplomatic duties within DK and the general promotion of the CPK line.”Footnote 4592 KHIEU Samphân alleges several errors pertaining to these findings.
1650. First, he submits that since his position as President of the State Presidium was “only ‘largely symbolic’”, the Trial Chamber erred in relying on it “as a charge against him”.Footnote 4593 The Co-Prosecutors submit that KHIEU Samphân fails to demonstrate an error.Footnote 4594 The Supreme Court Chamber notes that KHIEU Samphân misapprehends the Trial Chamber's description of his position as President of the State Presidium as “symbolic”. The Trial Chamber held that the role of President of the State Presidium held symbolic significance as, while he did not exercise executive or decision-making authority in this role, he nevertheless acted as the “public face of the DK”.Footnote 4595 It did not, as he implies, hold that the position existed only on paper. As President, he received diplomatic missions, represented the DK abroad and, on his own evidence to the Co Investigating Judges, attended meetings of the Standing Committee “to be informed to be able to talk […] to diplomats”.Footnote 4596 The Supreme Court Chamber does not accept that the Trial Chamber's description of his role as being “symbolic” either precluded or detracted from it properly relying upon his conduct in this role as an aspect of his contribution to the common purposeFootnote 4597 and an aggravating factor in sentencing.Footnote 4598
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1654. The Supreme Court Chamber has given ample consideration both to KHIEU Samphân's submissions on the criminality of the common plan and to his relentless and entirely baseless refrain that he supported only entirely innocuous and benevolent policies and endeavors of the CPK.Footnote 4608 This Chamber concludes that KHIEU Samphân mischaracterises the Trial Chamber's findings: the Trial Chamber found that he promoted the CPK line, in its various facets, rather than any “general” or non-criminal CPK line. In fact, the Trial Chamber found that KHIEU Samphân's speeches promoted its criminal policies, which included deporting and eliminating Vietnamese,Footnote 4609 establishing and operating cooperatives and worksites,Footnote 4610 abolishing Buddhist practices,Footnote 4611 and arranging marriages.Footnote 4612 This argument is without merit and is therefore dismissed.
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3. Member of the Central and Standing Committees
a. Membership in the Central Committee
1667. Although KHIEU Samphân concedes that he was “first an alternate member and then a full member” of the Central Committee,Footnote 4650 in his view, the Trial Chamber made several errors in assessing the significance of his role. He submits the Trial Chamber erred by (1) extending the powers of the Central Committee; (2) attributing decisions of the Standing Committee to the Central Committee; (3) “conveniently” dating KHIEU Samphân's admission as a full member of the Central Committee in order to implicate him in the Central Committee decision of 30 March 1976; and (4) finding that he participated in Party Congresses.Footnote 4651 The Co- Prosecutors respond that there are no errors in the Trial Chamber's findings, and that KHIEU Samphân overlooks the totality of the evidence and misrepresents some of the Trial Chamber's findings.Footnote 4652
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ii. Scope of Duties and Powers of the Central Committee
…
1684. The Supreme Court Chamber accepts that the Trial Chamber's findings do not straightforwardly support the proposition that all members of the Central Committee would necessarily have received all reports addressed to Angkar, although some or all may well have received them. This Chamber notes in particular the Trial Chamber's stated uncertainty as to which persons or organs were encompassed by the term Angkar and the various iterations of “870”.Footnote 4701 The Supreme Court Chamber notes the Trial Chamber's conclusion that day-to-day executive power was delegated to the Standing Committee and that, by contrast, the Central Committee met relatively infrequently,Footnote 4702 and that documents requiring updates were to be sent to Office 870 or the Standing Committee.Footnote 4703 The Trial Chamber's conclusion that reports were sent to the Central Committee seems to be derived mainly from its theoretical statutory power to monitor the implementation of Party policy rather than concrete evidence that the Central Committee did so.
1685. Nevertheless, most telegrams relied upon by the Trial Chamber in support of KHIEU Samphân's knowledge were addressed or copied to “Office”, that is, Office 870, where KHIEU Samphân worked from October 1975 onwards.Footnote 4704 The Trial Chamber established that there was a vertical reporting system whereby reports from sector committees to the zone level were forwarded up, usually to Office 870.Footnote 4705 Being one of very select members of Office 870, which was moreover at the apex of power given its mandate to oversee the implementation of the Standing Committee decisions, the Supreme Court Chamber finds it absolutely implausible that KHIEU Samphân was ignorant of the information flowing to that office. Further, the Supreme Court Chamber has upheld the Trial Chamber's finding that KHIEU Samphân was kept informed of DK trade and commerce matters by virtue of his position in the Commerce Committee.Footnote 4706 The Supreme Court Chamber thus concludes that the basis of KHIEU Samphân's knowledge was clearly established. KHIEU Samphân's submissions are therefore dismissed.
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b. Attendance and Participation in Meetings of the Standing Committee
i. Position of “Unique Standing” within the Party
…
1723. The Supreme Court Chamber finds no error in the Trial Chamber's finding that KHIEU Samphân attended “numerous”Footnote 4816 Standing Committee meetings, or its description of his attendance as “regular”.Footnote 4817 Minutes in evidence indicate that he was present at 16 meetings. While these took place over only a small part of the indictment period, they show that KHIEU Samphân was a frequent attendee, as the Trial Chamber noted, on the available minutes he was ranked third in the list of attendees with POL Pot and NUON Chea listed above his name.Footnote 4818 It was not unreasonable for the Trial Chamber to consider that the minutes provide a snapshot of his attendance at Standing Committee meetings and to deduce that this pattern was followed regularly throughout the DK nor, in this Chamber's view, is KHIEU Samphân reasonably entitled to any presumption that he did not remain for the entire length of meetings at which his attendance was noted, in the absence of supporting evidence.
1724. The Supreme Court Chamber also holds the view that KHIEU Samphân has not shown unreasonableness in the Trial Chamber's conclusion that the Standing Committee “met to discuss the implementation of the Party's political line and the administration of the country”Footnote 4819 or that “important matters” Footnote 4820or “matters central to the common purpose”Footnote 4821 were discussed and “crucial decisions” made at these meetings.Footnote 4822 These are rather moderate conclusions in light of the breadth of key topics covered in the minutes and the Trial Chamber's finding, explicitly accepted by KHIEU Samphân, that the Standing Committee was the “highest decision-making body of the CPK”.Footnote 4823
1725. In light of these findings, the Trial Chamber's conclusion that KHIEU Samphân's frequent attendance at Standing Committee meetings accorded him “a position of unique standing” in the CPKFootnote 4824 is also reasonable. In seeking to show that the Trial Chamber should instead have found his role to be “without influence or power”, KHIEU Samphân advances an alternative interpretation of the evidence without showing any error. He rehashes arguments raised both before the Trial Chamber in Cases 002/01 and 002/02 and in his Closing Brief, these have been repeatedly considered and have been addressed.
1726. Finally, KHIEU Samphân overlooks that his “position of unique standing” was relied upon by the Trial Chamber in support of its findings that he was aware of crimes by virtue of his proximity to the Party Centre.Footnote 4825 Whether this position also entailed “power or influence” is thus immaterial to the knowledge gained through his presence among the upper echelon.Footnote 4826 More importantly, as no finding of KHIEU Samphân's awareness rests solely or decisively on his attendance at Standing Committee meetings or position of unique standing within the CPK, an error in this regard could not occasion a miscarriage of justice.Footnote 4827
1727. As such, KHIEU Samphân's arguments on these points are dismissed.
…
B. JOINT CRIMINAL ENTERPRISE
1800. The Trial Chamber found that, by 17 April 1975, and continuing until at least 6 January 1979, several senior CPK leaders, including KHIEU Samphân, shared the criminal common purpose of rapidly implementing socialist revolution in Cambodia through a “great leap forward” designed to build the country, defend it from enemies, and radically transform the population into an atheistic and homogenous Khmer society of worker-peasants.Footnote 5028 According to the Trial Chamber, the common purpose was criminal because it was intrinsically linked to policies that involved the commission of crimes,Footnote 5029 namely: (1) the establishment and operation of cooperatives and worksites;Footnote 5030 (2) the establishment and operation of security centres and execution sites;Footnote 5031 (3) the targeting of specific groups;Footnote 5032 and (4) the regulation of marriage.Footnote 5033
1801. The Trial Chamber further found that, in sharing in the common purpose, KHIEU Samphân as a senior leader and the public face of DK, actively promoted the policies domestically and on the international stage and encouraged, incited, and legitimised its implementation through criminal policies, including by instructing CPK cadres on their implementation while enabling and controlling the same.Footnote 5034 The Trial Chamber thus determined that KHIEU Samphân made a significant contribution to the commission of crimes perpetrated by CPK cadres within the scope of Case 002/02,Footnote 5035 and that he shared the intent of other senior leaders in a joint criminal enterprise to participate in, and commit the crimes encompassed by, the common purpose.Footnote 5036 The Trial Chamber accordingly found KHIEU Samphân guilty of committing, through the joint criminal enterprise, genocide, crimes against humanity, and grave breaches of the Geneva Conventions, and sentenced him to life imprisonment.Footnote 5037
1802. KHIEU Samphân disputes every part of these key findings and submits that first, the Trial Chamber made several errors of law and fact in defining the common purpose of the senior leaders of DK as criminal. He disputes the criminal appellation to each of the CPK's policies.Footnote 5038 He further contends that the Trial Chamber was in error when it found that he shared the criminal aspect of the common purpose and that he significantly contributed to it, as well as in finding that he intended to participate in the common purpose and in the crimes underlying it.Footnote 5039 He argues that these errors invalidate the judgment and accordingly requests the Supreme Court Chamber overturn his convictions.Footnote 5040 This chapter will approach the Trial Chamber's findings in the context of KHIEU Samphân's premises that: (1) the common plan was not criminal; (2) the policies included in the common plan were not criminal; (3) he was in any event not a participant in the common plan; and (4) all findings that he was a significant contributor to the common plan are factually wrong and legally unsound.
…
2. Criminality of the Common Purpose
…
1815. The Supreme Court Chamber recalls that, in order to give rise to criminal liability, the common purpose being the object of the planned action between several persons has to be of a criminal character, in the sense that it either amounted to or involved the commission of a crime.Footnote 5081 In the context of the detailed and thorough assessment of the evidence made by the Trial Chamber, including specific facts of this period of just over three years between 1975 and 1979, and in the years prior to the takeover of Cambodia following the CPK's victory in the civil war, the suggestion that the CPK's common purpose did not involve the commission of any crimes is quite extraordinary. While it is not inconceivable for revolutions to benefit society without resulting in bloodshed or criminal activity, this was not one of them.
1816. KHIEU Samphân's repeated insistence that the common purpose of rapidly implementing socialist revolution in Cambodia was not criminal but rather purely political utterly ignores the reality that crimes were committed on a massive scale throughout the implementation process. The Trial Chamber also duly recognised that the common purpose of achieving a revolutionary Cambodian society through a “great leap forward” was not per se criminal, but – considering the evidence called – determined that its successful implementation “was contingent upon the execution of harmful policies and the elimination of all counter- revolutionary elements perceived to be inhibiting the Party or the progress of the socialist revolution.”Footnote 5082 In any event, the fact that a common purpose may be political at its core does not necessarily preclude its implementation by criminal means.
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5. Policy of Targeting Specific Groups
…
1843. KHIEU Samphân submits that the Trial Chamber erred in concluding that there were policies targeting the Vietnamese people,Footnote 5170 the Cham,Footnote 5171 former Khmer Republic officials and soldiers,Footnote 5172 and Buddhists.Footnote 5173
…
a. The Vietnamese
…
1847. This Chamber is not persuaded by KHIEU Samphân's submissions. The evidence, from senior cadres, telegrams, and Revolutionary Flag publications, among other authorities, reveals that the CPK indiscriminately targeted all Vietnamese, combatants and civilians, through its rhetoric, both oral and written. Before turning to consider this evidence, the Trial Chamber carefully articulated the reasons underlying its interpretation of the word “Yuon”, finding that it was employed, both by the CPK in contemporaneous documents and by witnesses during their in-court testimony, “to refer to Vietnam or Vietnamese in general terms” and not exclusively to combatants.Footnote 5180 The Trial Chamber then conducted a similarly detailed assessment of its reading of references to the “Yuon” and Vietnam as “the ‘hereditary enemy’ of the Cambodian people and of the Party”,Footnote 5181 referring to several examples of senior CPK leaders employing this term in an indiscriminate fashion.Footnote 5182 This Chamber finds no error in the Trial Chamber's understanding of the two terms. Nor did the Trial Chamber err in the reasoning provided in support thereof; instead, it explicitly explained that it would consider each term and any accompanying derogatory intent, “on a case-by-case basis and by taking into account the totality of the evidence and the circumstances in which” it was used.Footnote 5183 Any other errors alleged regarding the impugned policy must therefore considered in view of these properly established findings.
…
b. The Cham
…
1858. The Supreme Court Chamber does not consider that the absence of an official CPK document stating that there was a policy concerning the Cham indicates that no such policy existed. This Court has operated from the beginning on the premise that few documents were left behind by the retreating Khmer Rouge when the Vietnamese invasion commenced, the exceptions being at S-21 and Tram Kak District. The Trial Chamber found that such a policy existed based largely on Telegram 15's reference to discussions about dispersing the Cham and from the organised actions in purging Cham in 1977-1978. The Trial Chamber was unimpressed by the public documents referring to friendship towards all religions, finding they were a disingenuous means of shoring up public support. As dissembling was a large part of the modus operandi of the DK regime, the finding that there was a policy to target the Cham is not a conclusion that no reasonable finder of fact could have reached.
…
1860. Finally, although KHIEU Samphân argues that there was not a policy of specific measures targeting the Cham but rather the application of equal measures to the entire population,Footnote 5235 this ignores the Trial Chamber's finding that the policy evolved over time and eventually became one of “purg[ing]” the Cham.Footnote 5236 The Supreme Court Chamber finds that KHIEU Samphân has failed to demonstrate that the Trial Chamber erred in finding that the CPK specifically targeted the Cham group.Footnote 5237 This argument is therefore dismissed.
c. Former Khmer Republic Soldiers and Officials
…
1864. The Supreme Court Chamber considers that KHIEU Samphân has not demonstrated that the Trial Chamber erred in finding that a policy broadly targeting former Khmer Republic soldiers and officials for adverse treatment existed throughout the DK period that was intrinsically linked to the common purpose of the joint criminal enterprise and involved the commission of persecution on political grounds. The Trial Chamber relied on a range of contemporary documents, as well as witness, civil party, and expert evidence to make this finding, with KHIEU Samphân challenging only: (1) the reliance on his victory speech; (2) the events at Tuol Po Chrey; and (3) the findings that discrimination occurred against former Khmer Republic soldiers and officials at Tram Kak Cooperatives, the 1st January Dam Worksite, S-21 Security Centre, and Kraing Ta Chan Security Centre.
…
1868. As KHIEU Samphân has failed to demonstrate that the Trial Chamber erred in relying on (1) his victory speech; (2) the events at Tuol Po Chrey; and (3) the findings that discrimination occurred against former Khmer Republic soldiers and officials at the above- mentioned sites, this argument is dismissed.
…
7. KHIEU Samphân's Contribution
…
1874. KHIEU Samphân submits that the Trial Chamber erred in finding that he significantly contributed to a common criminal purpose.Footnote 5267 In particular, he contends that the Trial Chamber wrongly found that his support for, participation in, and/or contribution to the political aspects of the non-criminal common purpose of implementing socialist revolution in Cambodia were sufficient to establish his significant contribution to the commission of any crimes such purpose may have involved.Footnote 5268 He argues that “[i]n a JCE having an aim that is not criminal in itself, the significant contribution should not be made to the achievement of the (non-criminal) common purpose but to the commission of the crime”,Footnote 5269 and that “[f]ailing to be able to determine a specific action of [his] characterising his contribution to criminal aspects of the common purpose, the Chamber had recourse to ruses to include [him] in collective responsibility contrary to the need to determine his individual responsibility.”Footnote 5270 KHIEU Samphân further challenges the Trial Chamber's conclusions that he supported and promoted the common criminal purpose, and encouraged, incited, legitimised, instructed, facilitated, and controlled its implementation, as well as several specific findings or pieces of evidence underlying the Trial Chamber's conclusions in this respect.Footnote 5271
…
1876. Before criminal liability attaches under JCE, an accused's contribution to the common criminal purpose must be significant although not indispensable to its success. The nature and significance of the role played is to be determined on a case-by-case basis, taking into account a variety of factors including the position of the accused, the level and efficiency of the participation or any efforts taken to prevent crimes.Footnote 5275 Such contribution may take many forms,Footnote 5276 and as previously determined by this Chamber, “even activities that are on their face unrelated to the commission of crimes may be taken into account when determining whether the accused made a significant contribution thereto.”Footnote 5277 The Supreme Court Chamber accordingly rejects KHIEU Samphân's general argument that the Trial Chamber could not take into account activities that were, on their face, directed at implementing a socialist revolution (as opposed to the commission of specific crimes) when determining that he made a significant contribution to furthering the JCE's common criminal purpose.
1877. The Supreme Court Chamber similarly rejects his submission that the Trial Chamber essentially imposed on him a “collective responsibility” or guilt by association,Footnote 5278 as a review of the Trial Judgment shows that it clearly based its conclusions about KHIEU Samphân's significant contribution to the JCE on his own acts or conduct as opposed to those of others, including, inter alia: his continued occupation of positions within the CPK and DK throughout the indictment period;Footnote 5279 his regular attendance and participation at Standing Committee meetings and Central Committee Party Congresses where crucial decisions were made and matters were discussed;Footnote 5280 his membership in Office 870 from October 1975, and oversight of DK commerce matters from October 1976 until January 1979;Footnote 5281 his participation in meetings, discussions, and mass rallies concerning the identification and purge of enemies;Footnote 5282 his leading indoctrination sessions at mass rallies and re-education seminars;Footnote 5283 his continued calls on the masses to work collectively in fields and factories despite his knowledge of appalling conditions, gruelling work regimes and inadequate food;Footnote 5284 his calls on the population to divest themselves of personal sentiment towards their parents in favour of Angkar, as well as his openly promoting the Party's policy to rapidly increase the population, actively encouraging the arrangement of marriages contrary to Buddhist traditions and instructing the same so that couples could produce children in order to augment forces to defend the country, and supporting the abolition of Buddhism in DK;Footnote 5285 and his active propagation of the CPK's rhetoric calling for the discrimination against the Vietnamese in the midst of heightened tensions and growing hostility towards them, as well as his vocal support for the CPK's policies to deport them.Footnote 5286
1878. Further, the Trial Chamber considered his position, role and functions as a member of the CPK to place his contribution to the JCE in context.Footnote 5287 This included: (1) his continued occupation of positions of influence within the CPK and DK throughout the relevant period;Footnote 5288 (2) his regular attendance and participation at Standing Committee meetings and Central Committee Party Congresses where crucial decisions affecting the policies were made and discussed, e.g. on the “smashing” of enemies, agriculture, drought, and industry;Footnote 5289 and (3) his membership in Office 870 from October 1975 and of oversight of DK commerce matters from October 1976 until January 1979.Footnote 5290
…
1885. KHIEU Samphân's allegations of error in the Trial Chamber's findings regarding his significant contribution to the JCE's common criminal purpose are accordingly dismissed.
8. KHIEU Samphân's Knowledge and Intent
…
1887. KHIEU Samphân disputes these findings that he intended to support and participate in a common purpose that was criminal in nature,Footnote 5323 and continues his leitmotif that the common purpose was not criminal and so there could not be a joint criminal enterprise. He contends that the Trial Chamber erred in “considering that sharing and contributing to the non-criminal common purpose allowed it to find on the contribution to the alleged criminal policies when it needed to establish the intent to participate in the criminal aspect of the common purpose and, in the case at hand, to the criminal aspect of the alleged policies.”Footnote 5324 He further contends that the Trial Chamber applied an incorrect reasoning to deduce criminal intent, namely by considering that the commission of crimes by principal perpetrators was sufficient to deduce his own criminal intent to commit those crimes.Footnote 5325 He argues that any conclusions about his intent to commit crimes should rather have been based on his own specific conduct or participation in the criminal aspect of the common purpose rather than on that of any other alleged JCE participants.Footnote 5326 He further contends that his alleged intent should have been assessed in relation to specific crimes rather than on “crimes” in general,Footnote 5327 and that the Trial Chamber erred in concluding that he knew of and intended the commission of any crimes at cooperatives and worksites,Footnote 5328 purges,Footnote 5329 at security centres and execution sites as well as during against any particular groups,Footnote 5330 or by regulating marriages.Footnote 5331 Moreover, he argues that the Trial Chamber erred in stating that the requisite level of knowledge varies at different times, and in relying on evidence of his knowledge of crimes subsequent to their occurrence to establish his mens rea under JCE.Footnote 5332
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a. Alleged “Vicarious” Intent
…
1893. This Chamber agrees with the ICTR Appeals Chamber that, because explicit manifestations of criminal intent are often rare in the context of criminal trials, the requisite intent may normally be inferred from relevant facts and circumstances,Footnote 5351 and that knowledge of crimes combined with continued participation in a joint criminal enterprise can be conclusive as to a person's intent.Footnote 5352 In this respect, contrary to KHIEU Samphân's assertion that the Trial Chamber deduced his criminal intent vicariously through that of others, the Trial Chamber inferred his intent from his own acts and conduct, reciting, inter alia: his “enthusiasm for the implementation of the CPK's plans […] [despite] his knowledge of the appalling working and living conditions which were intentionally imposed at cooperatives and worksites throughout the country” as well as “encourag[ing] cadres to assign more work to New People and to deprive them of adequate food while supporting the unequal treatment of class enemies perceived to be impeding the CPK's progress”;Footnote 5353 his “contribut[ion] to nationwide purges”Footnote 5354 and “urg[ing] cadres to identify enemies obstructing the work of the Party, urg[ing] seething anger and ‘vigilance’ against them, and warn[ing] that traitors would be killed”;Footnote 5355 his being “personally informed about arbitrary detentions and conditions of imprisonment in Preah Vihear and “exercis[ing] his authority to extricate his relatives therefrom” (members of his wife's family);Footnote 5356 his “statements about the Vietnamese” and “his calls to remove Vietnamese populations from Cambodia back to Vietnam in the early days of DK”;Footnote 5357 his “words and actions during the DK period evinc[ing] his contempt for the Vietnamese and direct intent to kill, on a large scale, the Vietnamese in Cambodia from April 1977 through 6 January 1979”;Footnote 5358 his “support[ing] the charade of normalcy [aimed at shoring up the legitimacy of the interim CPK-dominated government which, behind the scenes, was defrocking monks in large numbers,] […] before discontinuing any mention of the monkhood while at the same time urging the arrangement of marriages in a fashion fundamentally inconsistent with the Buddhist traditions”;Footnote 5359 his “call[s] for the execution of Khmer Republic leadership and [being] a staunch supporter of the Party's discriminatory policies throughout the DK period”;Footnote 5360 and, his “personal instruct[ions] that all ministries were to arrange marriages so that couples could produce children for the ultimate defence of the country”.Footnote 5361 All of these acts/conduct on KHIEU Samphân's part, which individually may not have been sufficiently compelling, collectively were able to impel the Trial Chamber to draw the only reasonable inference that KHIEU Samphân intended the crimes encompassed by the common purpose.
…
b. Knowledge Indicative of Intent
…
1902. The Supreme Court Chamber observes that, in concluding that KHIEU Samphân had the requisite mens rea under JCE, the Trial Chamber clearly considered that he had direct contemporaneous knowledge of the commission of crimes and shared the intent for their commission with other JCE members. For instance, with respect to his intent for crimes committed at cooperatives and worksites, the Trial Chamber considered, inter alia, that he “knew that the population was being converted into a society of worker-peasants which was being forced to work continually”,Footnote 5391 and that “[h]is enthusiasm for the implementation of the CPK's plans was not dampened by his knowledge of the appalling working and living conditions which were intentionally imposed at cooperatives and worksites throughout the country”.Footnote 5392 Similarly, with respect to security centres, execution sites, and internal purges, the Trial Chamber considered that KHIEU Samphân “demonstrated acute knowledge of the circumstances of his fellow leaders' arrests”,Footnote 5393 that he “supported the principle of secrecy, knew about the widespread arrests of people at bases on the basis of their real or perceived affiliation with enemies, was personally informed about arbitrary detentions and conditions of imprisonment in Preah Vihear and exercised his authority to extricate his relatives therefrom”.Footnote 5394 The Trial Chamber also found that KHIEU Samphân had contemporaneous knowledge of the crimes committed during the DK period against the Cham,Footnote 5395 Vietnamese,Footnote 5396 Buddhists,Footnote 5397 and former Khmer Republic officials,Footnote 5398 as well as of the crimes committed in the course of the CPK's nationwide policy to regulate marriage.Footnote 5399 It also found that he acquired knowledge of current affairs by his attendance at meetings of the Standing Committee and because he lived and worked in close proximity to POL Pot, NUON Chea, SON Sen, IENG Sary, and the numerous other members of the Standing and Central Committees.Footnote 5400
…
c. Cooperatives and Worksites
…
1910. The Supreme Court Chamber agrees with KHIEU Samphân that the sections of the Trial Judgment relevant to KHIEU Samphân's knowledge and intent reveal a dearth of reasoning in respect of crimes committed at the Tram Kak Cooperatives, Trapeang Thma Dam, 1st January Dam, and Kampong Chhnang Airfield Construction Site. In light of the fundamental importance of the element of intent in establishing criminal liability, and the highly inferential nature of the exercise in establishing intent, the Trial Chamber should have explained its conclusions here with more diligence and specificity to each crime site as charged. However, the Trial Chamber did indicate elsewhere in its Judgment that, “for the purposes of assessing any knowledge relevant to the crimes charged on the part of the Accused, it will assess all of the information before it, including the visits of CPK leaders to specific crime sites.”Footnote 5421 Moreover, a holistic view of the Trial Judgment shows findings throughout that are relevant to KHIEU Samphân's knowledge of and link to crimes at each specific site, from which his intent to commit them can reasonably be inferred.
…
9. Proprio Motu Issue Concerning the Applicability of JCE to Crimes Committed with Dolus Eventualis
1946. The Supreme Court Chamber considers it necessary to address an issue of general significance to the ECCC's jurisprudence that arises from the Trial Judgment but was not advanced on appeal by any party. Although the Supreme Court Chamber's powers are exercised within the limits of the issues appealed by the parties, this Chamber, in line with the ICTR and ICTY Appeals Chamber,Footnote 5578 has held that it may exceptionally address issues proprio motu that would not lead to an invalidation of the judgment but are nevertheless of general significance to the tribunal's jurisprudence.Footnote 5579 The exercise of such a power is within the appellate chamber's discretion; if it declines to address an issue, the trial chamber's opinion remains the formal pronouncement on that issue and will therefore carry some weight.Footnote 5580
1947. The issue in the case at hand pertains to the applicability of JCE liability to dolus eventualis crimes, i.e., crimes where the perpetrator is aware of the risk that the objective elements of the crime may result from his or her actions or omissions and accepts such an outcome.Footnote 5581 Dolus eventualis does not include a standard of negligence or gross negligence.Footnote 5582 In response to KHIEU Samphân's argument that JCE I requires proof of direct intent with respect to both the common purpose and the underlying crime,Footnote 5583 the Trial Chamber determined “that the degree of intent required under JCE I is direct intent” and that “indirect intent (dolus eventualis) does not suffice for a finding of JCE before the ECCC.”Footnote 5584 As a result, the Trial Chamber concluded that the crime against humanity of murder committed with dolus eventualis fell outside the common purpose of the JCE, and accordingly analysed KHIEU Samphân's responsibility for this crime under the mode of liability of aiding and abetting instead.Footnote 5585 This Supreme Court Chamber finds that the Trial Chamber erred by ignoring that this Chamber's established jurisprudence in Case 002/01 that an accused may be held liable for crimes that are not directly intended but nevertheless encompassed by a JCE's common purpose.
1948. In Case 002/01, the Supreme Court Chamber noted that “the legal categories [of JCE] that the ICTY Appeals Chamber identified in Tadić appear to have been based primarily on an assessment of the facts of the underlying cases; the categories were not expressly used in the post-World War II jurisprudence nor are they sharp-contoured legal definitions free from overlap.”Footnote 5586 The Supreme Court Chamber found that, in situations where the accused did not carry out the actus reus of the international crime charged but acted in concert with others, “criminal liability based on making a contribution to the implementation of a common criminal purpose was, at the time relevant to the charges in the case at hand, limited to crimes that were actually encompassed by the common purpose”,Footnote 5587 because liability under JCE for crimes that fell outside the common purpose (i.e., JCE III) was not part of customary international law in 1975. In light of its conclusion that liability under JCE could therefore only arise for crimes falling within the common purpose, the Supreme Court Chamber explained that “the criteria for deciding which crimes are encompassed by a common purpose are of great relevance”.Footnote 5588 It recalled that the common purpose could either “amount to” or “involve” the commission of crimes:Footnote 5589
[T]he common purpose “involves” the commission of a crime if the crime is a means to achieve an ulterior objective (which itself may not be criminal). In such a scenario, it is not necessary that those who agree on the common purpose actually desire that the crime be committed, as long as they recognise that the crime is to be committed to achieve an ulterior objective. This may include crimes that are foreseen as means to achieve a given common purpose, even if their commission is not certain. For instance, if a gang agrees to break into a house to steal and to use, if necessary, deadly force to overcome any resistance that they may encounter, it would be unconvincing to conclude that the eventual murder was not encompassed by the common purpose because it was not certain that murder would actually be committed in the course of the break-in. Rather, in such scenario, the crime of murder was a constituent element of the plan that was conceived, even if the members of the gang did not know whether it would actually be committed. Thus, if attaining the objective of the common purpose may bring about the commission of crimes, but it is agreed to pursue this objective regardless, these crimes are encompassed by the common purpose because, even though not directly intended, they are contemplated by it.Footnote 5590
1949. The Supreme Court Chamber explained that whether a crime is contemplated by the common purpose is primarily a question of fact, but “[w]hat is of note is that the common purpose may encompass crimes in which the commission is neither desired nor certain, just as it is sufficient for the commission of certain crimes that the perpetrator acted with dolus eventualis and therefore neither desired that the crime be committed nor was certain that it would happen.”Footnote 5591 The Supreme Court Chamber stated specifically that:
[I]f murder is committed through a joint criminal enterprise, it has to be established that the accused had the objective to bring about the death of the victim through the implementation of the common purpose or was aware that the death would be the certain result thereof (direct intent), or was aware that the death of the victim was a possible consequence of the implementation of the common purpose, but proceeded to implement it regardless, having accepted the possible occurrence of deaths (dolus eventualis).Footnote 5592
1950. Indeed, in Case 002/01, the Supreme Court Chamber considered it appropriate to change the Trial Chamber's legal characterisation of certain deaths which occurred during the course of Movement of the Population Phase Two from extermination to the crime against humanity of murder committed with dolus eventualis, and found that these crimes were encompassed by the common purpose and that KHIEU Samphân bore JCE liability for them.Footnote 5593
1951. The Trial Chamber did not acknowledge the Supreme Court Chamber's decision, but instead relied selectively on jurisprudence from the ad hoc tribunals:
The Chamber notes that the mens rea requirement for JCE varies according to category and in particular depending on whether crimes are encompassed by the common purpose. While JCE I requires that crimes are encompassed by the common purpose, JCE III pertains to crimes committed outside the common purpose as a natural and foreseeable consequence of effecting that common purpose. On the basis of this distinction, international jurisprudence has held that JCE I requires direct intent while JCE III requires only that an accused was aware that these crimes were a possible consequence of the execution of the common purpose and willingly took the risk that they would be committed (dolus eventualis). For example, in Stanišić and Simatović, the ICTY Trial Chamber stated that: “[i]t follows […] that the first form of the JCE requires intent in the sense of dolus directus, and that recklessness or dolus eventualis does not suffice”. In Karemera and Ngirumpatse, the ICTR Appeals Chamber stated that: “[t]he question of “foreseeability” relates to the extended form of joint criminal enterprise, not the basic form”. The ICTY Appeals Chamber confirmed in Šainović et al. that the “ability to predict” is an improper mens rea standard under JCE I and that the Trial Chamber had correctly required that Šainović “had knowledge of, as opposed to ability to foresee, the commission of crimes and shared the intent for their commission with the other members of the JCE”.
The Chamber finds that the intent (dolus eventualis) that forms part of the definition of JCE III cannot be transposed into JCE I. As JCE III was not part of customary international law during the relevant period of the Closing Order, indirect intent (dolus eventualis) does not suffice for a finding of JCE before the ECCC. Accordingly, and consistent with the submissions of the KHIEU Samphan Defence, the Chamber finds that the degree of intent required under JCE I is direct intent.Footnote 5594
1952. The Trial Chamber essentially, and incorrectly, considered that if the commission of a crime is merely foreseeable, that crime automatically falls outside the common purpose. This ignores situations where the probable commission of a crime was jointly and willingly agreed upon by all JCE participants, as in the example given by this Chamber in Case 002/01 of the gang breaking into a house and agreeing to use lethal force if necessary. In such situations, as the JCE participants share an agreement as regards the commission of a crime with dolus eventualis in furtherance of the common purpose, the crime is encompassed by the common purpose.
1953. The jurisprudence cited by the Trial Chamber rests, sometimes indirectly, on the Tadić Appeal Judgment. When defining the applicable mens rea for the three forms of JCE it defined in customary international law, the Tadić Appeals Chamber stated that “the mens rea element differs according to the category of common design under consideration. With regard to the first category, what is required is the intent to perpetrate a certain crime (this being the shared intent on the part of all co-perpetrators).”Footnote 5595 This is distinct from JCE III, where, according to the Appeals Chamber:
[W]hat is required is the intention to participate in and further the criminal activity or the criminal purpose of a group and to contribute to the joint criminal enterprise or in any event to the commission of a crime by the group. In addition, responsibility for a crime other than the one agreed upon in the common plan arises only if, under the circumstances of the case, (i) it was foreseeable that such a crime might be perpetrated by one or other members of the group and (ii) the accused willingly took that risk.Footnote 5596
1954. The Tadić case dealt with a situation where Tadić (the accused) was part of an armed group of men involved in an attack on two villages as part of an ethnic cleansing campaign to remove non-Serbs from the area.Footnote 5597 Five men were killed as a result of the attack, but the Trial Chamber was unable to determine whether Tadić himself took part in their killing,Footnote 5598 although he personally “took an active part in the brutal and violent beating” of four men as part of the attack.Footnote 5599 Killing was not found to be part of the common criminal purpose.Footnote 5600 The ICTY Appeals Chamber therefore considered whether the killings were a natural and foreseeable consequence of the attack on the villages, such that Tadić might incur liability via JCE III.
1955. As the Tadić Appeals Chamber was determining whether Tadić might bear responsibility for crimes outside the common purpose, its principal focus was not on the level of intent required for crimes within the common purpose. Its statement that such crimes must be perpetrated with intent (which it did not elaborate upon or explain) may be seen as the simple requirement that the JCE members share the mens rea required for the underlying crime.Footnote 5601
1956. Indeed, some ICTY Chambers have interpreted it in this way. The Brđanin & Talić Trial Chamber, quoted with approval by the Krstić Trial Chamber,Footnote 5602 stated that:
The state of mind of the accused to be established by the prosecution accordingly differs according to whether the crime charged:
(a) was within the object of the joint criminal enterprise, or
(b) went beyond the object of that enterprise, but was nevertheless a natural and foreseeable consequence of that enterprise.
If the crime charged fell within the object of the joint criminal enterprise, the prosecution must establish that the accused shared with the person who personally perpetrated the crime the state of mind required for that crime.Footnote 5603
1957. No chamber at the ad hoc tribunals has analysed whether a crime falling within the common purpose could be committed with dolus eventualis, although some, referring back to Tadić or to other cases that refer to Tadić, have stated without any actual analysis that direct intent is required.Footnote 5604
1958. The Tadić Appeals Chamber did not actually state that “direct intent” was required for JCE I, but rather “the same criminal intent” or “shared intent”.Footnote 5605 Dolus eventualis is considered to be a form of intent. As this Chamber explained in Case 002/01, “the causing of death with less than direct intent but more than mere negligence (such as dolus eventualis or recklessness) incurs criminal responsibility and is considered as intentional killing.”Footnote 5606
1959. It would be nonsensical to require a higher mens rea for the form of participation than for the underlying crime. If one can incur liability for individually committing with dolus eventualis the crime against humanity of murder, he or she should equally be held liable for participating in a joint criminal enterprise that commits the same crime. As the Tadić Appeals Chamber explained, “to hold criminally liable as a perpetrator only the person who materially performs the criminal act would disregard the role as co-perpetrators of all those who in some way made it possible for the perpetrator physically to carry out that criminal act.”Footnote 5607
1960. The Supreme Court Chamber does not consider this approach to be a “fundamental reshaping of the concept of individual responsibility for collective criminal action”.Footnote 5608 The threshold for liability is not lowered by considering that one could be liable for any crime within the common plan so long as its commission was merely foreseeable.Footnote 5609 To incur liability via JCE, the JCE participant must possess the requisite mens rea for the underlying crime inherent in the common plan.Footnote 5610 One could not be held liable via JCE, for example, for genocide that was foreseeable but not intended, as the crime of genocide requires direct intent.
1961. The Supreme Court Chamber recognises, however, that where the common purpose is inferred from events, it is particularly important to determine which crime(s) fall(s) within the common purpose and whether there has been a meeting of minds by the JCE participants in respect of the crime(s) where the JCE participants accept the commission of the crime either as a goal, as an inevitable consequence of the primary purpose or as an eventuality treated with indifference.Footnote 5611 This is because the outcome will be considerably different depending on whether the crime at issue is considered to fall within the common purpose. As explained in Case 002/01, “[w]hether a crime was contemplated by the common purpose is primarily a question of fact that – absent an express agreement – has to be assessed taking into account all relevant circumstances, including the overall objective of the common purpose and the likelihood that it may be attained only at the cost of commission of crimes.”Footnote 5612 While the existence of a common purpose, the crime(s) encompassed by the common purpose, and the meeting of minds regarding the commission of the crime(s) may be implicit and inferred from the evidence, any such inferences drawn must be the only reasonable ones available on the evidence.
1962. In view of the Trial Chamber's error concerning the mens rea required for JCE liability, and its subsequent failure to consider KHIEU Samphân's individual responsibility for the crime against humanity of murder committed with dolus eventualis within the JCE, the Supreme Court Chamber will now consider whether the crime against humanity of murder committed with dolus eventualis fell within the common purpose. If the crime against humanity of murder committed with dolus eventualis is considered to have been part of the common purpose, the Supreme Court Chamber will assess KHIEU Samphân's responsibility for this crime through JCE, as the Trial Chamber has found “that commission through a joint criminal enterprise most accurately and appropriately reflects KHIEU Samphan's responsibility for the crimes that fall within the common purpose.”Footnote 5613 If the Supreme Court Chamber finds that KHIEU Samphân is responsible under JCE, the Supreme Court Chamber will recharacterise KHIEU Samphân's conviction for aiding and abetting the crime against humanity of murder committed with dolus eventualis to commission of this crime via JCE.
1963. Rule 110(2) permits the Supreme Court Chamber to change the legal characterisation of the facts contained in the Trial Judgment to accord with a new form of liabilityFootnote 5614 provided that it does not go beyond those factsFootnote 5615 or violate fair trial rights. An accused's fair trial rights are not violated by recharacterisation where the accused is aware of the possibility of the legal recharacterisation and is given sufficient opportunity to defend against it.Footnote 5616 In the present case, as addressed in Section V.B above, KHIEU Samphân was charged with the crime against humanity of extermination but was on notice that the facts considered to amount to extermination could also be characterised as murder, and that this Chamber had clarified that murder as a crime against humanity may be committed with dolus eventualis.Footnote 5617 He was aware that this Chamber had also clarified that crimes committed with dolus eventualis may incur JCE liability.Footnote 5618 Accordingly, the Supreme Court Chamber considers that the proposed legal recharacterisation would not violate KHIEU Samphân's fair trial rights.
…
b. KHIEU Samphân's JCE Liability for the Crime Against Humanity of Murder Committed with Dolus Eventualis
1967. To be held liable via JCE for any crime against humanity including murder committed with dolus eventualis, KHIEU Samphân must have made a significant contribution to the common purpose of the JCE and he must have possessed the requisite mens rea, which in this case, as discussed above, entails that he was aware of the substantial likelihood of deaths occurring due to the imposition of the harsh living and working conditions at the cooperatives and worksites and the poor conditions of detention at the security centres. The Supreme Court Chamber has also upheld the Trial Chamber's determination that KHIEU Samphân made a significant contribution to the common purpose of the JCE.Footnote 5629
…
1974. Although KHIEU Samphân is correct that the findings made in Section 18.1.1, on which the Trial Chamber relied in part, were not made in response to knowledge of deaths due to conditions imposed at cooperatives, worksites, and security centres, these findings are relevant to his knowledge of deaths. The Trial Chamber considered the evidence of KHIEU Samphân's awareness of the substantial likelihood of the commission of other crimes within the common purpose of the JCE in detail in this section. It found that he “knew of the wide-scale food shortages at cooperatives and worksites.”Footnote 5645 It considered evidence that he personally observed conditions at worksites,Footnote 5646 and witnessed the abysmal conditions.Footnote 5647 By his own admission and description after the fall of the DK regime, KHIEU Samphân witnessed “starvation”, “lack of medicines” and “[p]eople [who] were forced to work without food, while they could barely walk, but even so, they were made to work.”Footnote 5648 The Trial Chamber held, by consequence, that he “knew of the abject working conditions at cooperatives and worksites during the DK period”Footnote 5649 and “knew of the crimes committed in the course of the policy to establish and operate cooperatives and worksites.”Footnote 5650 It was on the basis of these findings, as well as KHIEU Samphân's knowledge as demonstrated by his conduct including attending at CPK Standing Committee meetings, radio-broadcast speeches, and political training of CPK cadres that the Trial Chamber concluded that “he knew that deaths would likely result from the conditions imposed at cooperatives and worksites.”Footnote 5651
1975. Concerning his knowledge of the likelihood of deaths from detention conditions, the Supreme Court Chamber agrees with KHIEU Samphân that the Trial Chamber erred in relying on his knowledge of purges to imply knowledge in security centres. The Trial Chamber did not explain how KHIEU Samphân's knowledge of the arrest, imprisonment, mistreatment, or execution of real or perceived enemies translated into an awareness that the conditions imposed in the security centres were likely to lead in death. Knowledge of deaths occurring by execution does not imply knowledge of deaths caused by poor conditions of detention. The Trial Chamber did, however, find that KHIEU Samphân knew of the substantial likelihood that the harsh conditions at the cooperatives and worksites extended to security centres.Footnote 5652 KHIEU Samphân failed to explain why this finding was unreasonable. The Supreme Court Chamber holds the view that if KHIEU Samphân was aware of the likelihood of deaths occurring in cooperatives and worksites due to the deprivation of food, medical care, and hygiene, he would have been similarly aware of the likelihood of these conditions leading to death inside the security centres. Key to all findings of knowledge by KHIEU Samphân is his role as an attendee at the highest- level meetings of the CPK where the limited minutes which exist show that all issues of interest and concern were discussed on a regular basis.
1976. For the foregoing reasons, the Supreme Court Chamber rejects KHIEU Samphân's submissions that the Trial Chamber erred in fact in finding he was aware of the substantial likelihood of deaths at Tram Kak Cooperatives, 1st January Dam Worksite, Trapeang Thma Dam Worksite, Kampong Chhnang Airfield Construction Site, S-21 Security Centre, and Kraing Ta Chan Security Centre. The Supreme Court Chamber finds that the crime against humanity of murder committed with dolus eventualis at the above crimes sites was included in the common purpose of the JCE and that KHIEU Samphân bears JCE liability for this crime. It recharacterises the form of liability at issue from aiding and abetting to JCE liability, which is a return to the characterisation of the facts as outlined in the Closing Order. It therefore will not consider KHIEU Samphân's remaining challenges related to aiding and abetting.
IX. SENTENCING
…
B. CLARIFICATION CONCERNING THE SECOND SENTENCE IMPOSED ON KHIEU SAMPHÂN
2018. Before turning to the challenges related to sentencing, the Supreme Court Chamber considers it necessary to clarify a matter concerning KHIEU Samphân's sentence: whether he now serves a single life sentence or two concurrent life sentences. This issue arises because, due to its breadth, Case 002 was severed by the charges into Cases 002/01 and 002/02 in the interests of trial management,Footnote 5738 something that has not occurred previously at the ECCC or in international criminal jurisprudenceFootnote 5739 and is not foreseen under Cambodian law.
…
2028. This Chamber notes that had Case 002 not been severed into two separate trials, KHIEU Samphân would not have been sentenced twice. An additional life sentence to run cumulatively or concurrently could not, in the interests of justice, be imposed merely because Case 002 was severed in the interest of trial management. In addition to the stigma or perhaps opprobrium of an additional life sentence, serving two concurrent life sentences rather than a single sentence could affect the notion of hope in a very elderly man and perhaps affect any opportunity for an eventual conditional release.Footnote 5748
2029. While the Trial Chamber had to impose a sentence following its finding of guilt in Case 002/02,Footnote 5749 it confused matters by referring to concurrent sentences, or two sentences served at the same time as one another, and by equating the situation before it with the situation addressed in domestic Cambodian law by Article 138 of the Criminal Code of Cambodia. As noted above, Cambodian law does not provide for severance of charges, and therefore cannot be applied to this situation.
…
2034. The Supreme Court Chamber clarifies that KHIEU Samphân now serves a single sentence of life imprisonment covering the totality of his criminal responsibility for the crimes of which he was convicted in Cases 002/01 and 002/02. He does not serve two concurrent life sentences. His single life sentence, the maximum sentence allowed by law, demonstrates the seriousness with which Cambodia and the entire international community regard violations of international law.
…
E. IMPACT OF THE SUPREME COURT CHAMBER'S FINDINGS ON THE SENTENCE
2066. The Supreme Court Chamber recalls that it has upheld KHIEU Samphân's convictions for: (1) the crimes against humanity of murder, extermination, deportation, enslavement, imprisonment, torture, persecution on political, religious, and racial grounds, and other inhumane acts through attacks against human dignity, conduct characterised as enforced disappearances, forced transfer, forced marriage, and rape within the context of forced marriage; (2) the crime of genocide by killing members of the Vietnamese ethnic, national, and racial group; and (3) grave breaches of the Geneva Conventions of wilful killing, torture, inhuman treatment, wilfully causing great suffering or serious injury to body or health, wilfully depriving a prisoner of war or a civilian the rights of a fair and regular trial, and unlawful confinement of a civilian under the Geneva Conventions at S-21 Security Centre, changing his form of liability for murders committed with dolus eventualis from aiding and abetting liability to JCE liability.Footnote 5821 It has reversed the finding of political persecution of New People at the 1st January Dam Worksite, considering that the Trial Chamber erred in finding that a fundamental right to equal treatment had been infringed or violated by the treatment of New People at that worksite.Footnote 5822 It has also reversed the finding of murder as a crime against humanity at Phnom Kraol Security Centre, which was based on two discrete murders, findings that the murders could not be established beyond reasonable doubt based on the available evidence.Footnote 5823 His overall convictions for persecution on political grounds and murder as crimes against humanity stand, as they were based on multiple acts of political persecution and multiple murders at other locations.Footnote 5824 The Supreme Court Chamber has also granted the Co-Prosecutors' Appeal, entering a conviction for the crime against humanity of other inhumane acts through conduct characterised as rape in the context of forced marriage with regard to male victims.Footnote 5825 The Supreme Court Chamber also recalls that it found that the Trial Chamber erred in double counting KHIEU Samphân's position of authority and influence when considering the gravity of the crimes and also when considering aggravating circumstances.Footnote 5826
2067. The Supreme Court Chamber notes that, as explained above,Footnote 5827 KHIEU Samphân is serving a life sentence, the maximum sentence permitted at the ECCC, which was imposed by the Trial Chamber for his convictions in Cases 002/01 and upheld by the Supreme Court Chamber on appeal. Case 002/01 and 002/02 were prosecuted separately but originated from a single indictment that was severed in the interests of trial management and in light of the frail health and advance age of all the Accused. Although the two cases are thus related, they deal with different facts that were adjudicated in two trials that produced separate dispositions, each of which requires the imposition of a separate sentence after finding of guilt. For this reason, the Trial Chamber sentenced KHIEU Samphân to life imprisonment for the crimes of which he was convicted in in Case 002/02 and this Chamber affirms that sentence.
2068. The Supreme Court Chamber considers the life sentence that was imposed in Case 002/02 to be appropriate in light of all the circumstances, including the tragic nature of the underlying crimes and the extent of harm caused by KHIEU Samphân. In the circumstances, however, in addition to affirming the life sentence in this case, this Chamber affirms the decision of the Trial Chamber to have the sentence run concurrently with the one imposed in Case 002/01 s permitted by Article 138 of the Cambodian Criminal Code.
2069. Nonetheless, this Chamber concludes that the Trial Chamber's finding that a life sentence was appropriate for the crimes at issue in Case 002/02 would not be appreciably altered by the Supreme Court Chamber's recharacterisation of aiding and abetting liability to JCE liability, its reversal of the crime against humanity of political persecution of New People at the 1st January Dam Worksite or the crime against humanity of murder at Phnom Kraol, its entering a conviction for the crime against humanity of other inhumane acts through conduct characterised as rape in the context of forced marriage with regard to male victims, or its finding that the Trial Chamber erred in double counting KHIEU Samphân's position of authority and influence as an aggravating factor as to the gravity of the crimes; and finally that the Trial Chamber erred in assessing mitigating factors. The Supreme Court has thoroughly considered each of these assertions and considers them without merit. The sole exception is the claim that the Trial Chamber erred in assessing the gravity of the crimes committed by including a crimes of which KHIEU Samphân was not charged and impermissibly double counting his position of authority and influence. Although, the Supreme Court Chamber decides that doing so constituted error, it also concludes that in the circumstances of this case their consideration does not render the ultimate sentence inappropriate or unfair in any way.
2070. Participation in a JCE is considered a higher form of liability than aiding and abetting and tends to attract a higher sentence.Footnote 5828 As noted above, KHIEU Samphân already serves the highest sentence permitted by ECCC law, this recharacterisation has no effect on his sentence, nor does the conviction with regard to male victims of rape in the context of forced marriage. The reversal of the finding of political persecution at the 1st January Dam Worksite affected only one group of “real or perceived enemies” persecuted at the 1st January Dam Worksite and does not affect the multiple other findings of political persecution elsewhere throughout Cambodia. The reversal of the finding of murder at Phnom Kraol Security Centre relates only to two deaths, and as this is only a small fraction of the overall deaths at issue, it is insufficient to affect the sentence. Consequently, KHIEU Samphân's position of authority and influence was only one of many factors the Trial Chamber considered in its gravity analysis, and there is no question that a life sentence would be appropriate considering the gravity of the crimes without having inappropriately considered this an aggravating factor.
X. DISPOSITION
For the foregoing reasons, THE SUPREME COURT CHAMBER,
PURSUANT TO Article 4(1)(b) of the ECCC Agreement, Articles 14 new (1)(b) and 36 new of the ECCC Law and Internal Rule 111;
NOTING the respective written submissions of the Parties on appeal and their arguments presented at the hearing from 16 to 19 August 2021;
GRANTS, in part, and DISMISSES, in part, KHIEU Samphân's Appeal, and therefore:
Insofar as it relates to facts of deaths that occurred at Tram Kak Cooperatives, Trapeang Thma Dam Worksite, 1st January Dam Worksite, Kampong Chhnang Airfield Construction Site, S-21 Security Centre, and Kraing Ta Chan Security Centre:
REVERSES KHIEU Samphân's conviction for aiding and abetting the crime against humanity of murder with dolus eventualis, and, recharacterising the facts, ENTERS a conviction for the crime against humanity of murder with dolus eventualis through a joint criminal enterprise;
Insofar as it relates to facts of deaths that occurred at Phnom Kraol Security Centre:
REVERSES KHIEU Samphân's conviction for the crime against humanity of murder at Phnom Kraol Security Centre;
Insofar as it relates to facts of persecution at 1st January Dam Worksite:
REVERSES KHIEU Samphân's conviction for the crime against humanity of persecution on political grounds of New People at the 1st January Dam Worksite;
Insofar as it relates to facts of killings of the Cham that occurred at Trea Village and Wat Au Trakuon and killings of the Vietnamese in Svay Rieng, in DK waters, in Kampong Chhnang province, at Wat Khsach, and in Kratie, as well as at Au Kanseng Security Centre:
AFFIRMS KHIEU Samphân's conviction for the crimes against humanity of extermination;
Insofar as they relate to facts of forced labour of prisoners at Phnom Kraol Security Centre:
AFFIRMS KHIEU Samphân's conviction for the crime against humanity of enslavement;
Insofar as they relate to facts of removal of the Vietnamese from Tram Kak district and from Prey Veng province:
AFFIRMS KHIEU Samphân's conviction for the crimes against humanity of deportation of Vietnamese;
Insofar as they relate to facts of physical and mental mistreatment of the Cham at Trea Village:
AFFIRMS KHIEU Samphân's conviction for the crime against humanity of torture;
Insofar as they relate to facts of the treatment of the Cham and of “real or perceived enemies of the CPK”, including former Khmer Republic soldiers and officials and “New People” at Tram Kak Cooperatives, Trapeang Thma Dam Worksite, 1st January Dam Worksite (not in relation to “New People”), Kampong Chhnang Airfield Construction Site, S-21 Security Centre, Kraing Ta Chan Security Centre, Au Kanseng Security Centre and Phnom Kraol Security Centre:
AFFIRMS KHIEU Samphân's conviction for the crimes against humanity of persecution on political grounds;
Insofar as they relate to facts of discrimination against the Cham:
AFFIRMS KHIEU Samphân's conviction for the crimes against humanity of persecution on religious grounds;
Insofar as they relate to facts of discrimination against Buddhists and Buddhist Monks:
AFFIRMS KHIEU Samphân's conviction for the crimes against humanity of persecution on religious grounds;
Insofar as they relate to facts of discrimination of the Vietnamese at Tram Kak Cooperatives, S-21 Security Centre, Au Kanseng Security Centre and in Prey Veng and Svay Rieng provinces:
AFFIRMS KHIEU Samphân's conviction for the crimes against humanity of persecution on racial grounds;
Insofar as they relate to facts of disappearances at Tram Kak Cooperatives, Kraing Ta Chan Security Centre, and Phnom Kraol Security Centre:
AFFIRMS KHIEU Samphân's conviction for the crimes against humanity of other inhumane acts through conduct characterised as enforced disappearances;
Insofar as they relate to facts of forcible transfers of the Cham in the course of the Movement of Population Phase Two:
AFFIRMS KHIEU Samphân's conviction for the crimes against humanity of other inhumane acts through conduct characterised as forced transfer;
Insofar as they relate to facts of forced marriage and forced sexual intercourse in the context of forced marriage within the context of the nationwide regulation of marriage:
AFFIRMS KHIEU Samphân's conviction for the crimes against humanity of other inhumane acts through conduct characterised as forced marriage and rape, and additionally categorized as crime against humanity of other inhumane acts in the form of sexual violence, understood to constitute forced sexual intercourse in the context of forced marriage with regard to female victims;
GRANTS the Co-Prosecutors' Appeal; and ENTERS a conviction for the crime against humanity of other inhumane acts through conduct characterised as forced marriage and additionally categorized as crime against humanity of other inhumane acts in the form of sexual violence, understood to constitute forced sexual intercourse in the context of forced marriage with regard to male victims;
Insofar as they relate to wilful killing, torture, inhuman treatment, wilfully causing great suffering or serious injury to body or health, wilfully depriving prisoners of war or civilians the rights of fair and regular trial and the unlawful confinement of civilians:
AFFIRMS KHIEU Samphân's conviction for grave breaches of the Geneva Conventions;
Insofar as they relate to facts of killings of the Vietnamese:
AFFIRMS KHIEU Samphân's conviction for the crime of genocide;
AFFIRMS KHIEU Samphân's sentence of life imprisonment in Case 002/02, which shall run concurrently with the life sentence imposed in Case 002/01;
ORDERS that KHIEU Samphân remain in the custody of the ECCC pending the issuance of the full written Appeal Judgment and the finalisation of arrangements for his transfer, in accordance with the law, to the prison where he will continue to serve his sentence.
Done in Khmer and English.
Dated this 23rd day of December 2022
At Phnom Penh,
Cambodia
[Signatures]
