Case 002: Four Senior Leaders of the Khmer RougeKhmer Rouge Trials
CJA, along with Cambodia national attorney Sam Sokong, represents 45 Civil Parties in Case No. 002 before the Extraordinary Chambers in the Courts of Cambodia (ECCC) against four senior leaders of the Khmer Rouge: Ieng Sary, Ieng Thirith, Nuon Chea and Khieu Samphan. CJA’s clients are all members of the Cambodian diaspora living in the United States. CJA Staff Attorney Ms. Nushin Sarkarati was recently accepted by the Bar Association of Cambodia to represent civil parties before the ECCC.
On September 7, 2010 the ECCC declared that 11 civil party applicants were inadmissible, for lack of a sufficient factual basis. CJA appealed the decision, and on June 24, 2011, the Pre-Trial Chamber of the ECCC reversed the order rejecting the civil party applications and announced that over 1,700 rejected applicants would now be accepted, bringing the total number of civil parties to 3,866.
The Initial Hearings started in June and the substantive trial is scheduled to commence November 21, 2011
The Extraordinary Chambers in the Courts of Cambodia (ECCC)
As part of the transitional justice effort to hold senior Khmer Leaders accountable, the Cambodian Government and the United Nations (UN) formed the ECCC, a Cambodian national court. A 'hybrid' national-international tribunal, the court applies Cambodian and international law and features Cambodian as well as international judges and counsel. The international element was included to assist Cambodia’s legal system in handling these cases, which involve crimes of international nature. The ECCC’s jurisdiction covers human rights crimes, including genocide, crimes against humanity, grave breaches of the Geneva Conventions of 1949, and offences under the Cambodian Criminal Code of 1956 which include murder, torture and religious persecution committed between April 17, 1975 and January 7, 1979.
Victims’ Rights in the ECCC
The ECCC is a unique court
because it grants certain rights to the victims of the crimes that fall
under its jurisdiction. “Victim” is defined as an individual who
suffered physical, psychological or material harm as a direct
consequence of the crimes committed under the regime of the Khmer Rouge
between 1975 and 1979. According to the rules of the ECCC, victims have
a right to file complaints (“Complainants”) before the ECCC as well as
to participate in the proceedings as Civil Parties if accepted by the
court. Complainants are considered to be those individuals or legal
entities which have useful information regarding the crimes under the
jurisdiction of the ECCC, and may be requested to give evidence or
testify as witnesses. Complainants are not allowed to participate in
hearings or ask for reparations. Victims who join the proceedings as
Civil Parties have the right to non-monetary, “moral and collective”
reparations if the defendants are found guilty. Moral reparations are
of a symbolic value whereas collective reparations are reparations that
benefit groups of civil parties or victims, or that benefit Cambodian
society. Victims Support Section (VSS) within the ECCC is responsible for assisting Victims who want to participate in the Court's proceedings.
In Case No. 002, the VSS received 8202 Victim Information Forms, which includes approximately 4000 Civil Party Applications.
Overview of Case No. 002
Case 002 centers on four key defendants (KHIEU Samphan, NUON Chea, IENG Sary and IENG Thirith), all of whom held positions of high authority during the Khmer Rouge regime. They are accused individually as well as part of a joint criminal enterprise, of the following crimes:
- Crimes against humanity: extermination, murder, enslavement, deportation (of Vietnamese), imprisonment, torture, persecution on political, racial and religious grounds, rape (as a result of forced marriage) and other inhumane acts (forcible transfer of population, forced marriage, forced disappearance and "attacks against human dignity"), in the context of an attack against the entire population of Cambodia.
- Grave breaches of the Geneva Conventions of 12 August 1949: willful killing, torture, inhumane treatment, willfully causing great suffering or serious injury to body or health, willfully depriving a prisoner of war or civilian the rights of fair trial, unlawful deportation or confinement of civilians, against protected persons in the context of an international armed conflict with Vietnam.
- Genocide of the Cham and of the Vietnamese.
- Offenses under the Cambodian Criminal Code 1956: murder, torture and religious persecution.
It is estimated that up to 2.2 million people died during the Khmer Rouge regime, and as many as 800,000 of these deaths were violent deaths. Because of this sheer scale of death and suffering, the Co-Prosecutors sought to limit the scope of the prosecutions to a number of specific issues. These include:
- Displacement of the population from urban to rural areas;
- The operation of labor camps, cooperatives and worksites;
- The re-education of “bad elements” and the elimination of “enemies” in security centers and execution sites;
- Crimes against particular groups, such as the Vietnamese, the Cham minority, Buddhists, and suspected traitors; and
- Forced marriage.
Although the matter has not yet gone to trial, the Case File already contains 46 written records of interviews with the Charged Persons; over 1,000 written records of interviews of witnesses and Civil Parties; numerous reports on crime sites, demographic data and medical evidence; as well as over 11,600 pieces of documentary evidence relating to the facts of the case.
There has been significant interest among Victims to be involved as Civil Parties in case 002. Almost 4,000 victims filed applications to be joined as Civil Parties, and to date, the Co-Investigating Judges have admitted 3,866 of the applicants.
Applied Social Research Institute of Cambodia (“ASRIC”)
In this case CJA is working together with the ASRIC -- a non-profit grass-roots organization founded by medical sociologist Dr. Leakhena Nou and committed to supporting survivors of the Cambodian genocide all around the world. ASRIC is dedicated to increasing cultural, individual, and collective strengths of the Cambodian population through juridical education and justice-oriented initiatives. ASRIC embraces moral and juridical obligation to educate Cambodians and Americans about the ECCC. This mission gave rise to ASRIC’s Cambodian Diaspora Victims Participation Project (CDVPP), which encouraged Cambodian genocide survivors to actively engage in the proceedings as Civil Parties and Witnesses. ASRIC played the lead role in organizing and collecting testimony from members of the Cambodian diaspora. In fact, having interviewed approximately 200 people, ASRIC has compiled the largest collection of survivor testimony in the United States.
Professor David Kaye and the International Justice Clinic at UCLA Law School, Alex Whiting from Harvard Law School , and attorney Audrey Redmond were instrumental in assisting ASRIC with gathering witness testimonies and preparing civil party applications.
On September 7, 2010 the ECCC issued the Order on the Admissibility of Civil Party Applicants Residing Outside the Kingdom of Cambodia, in which it declared 30 out of 41 Civil Party Applicants admissible. The rest of the applications were declared inadmissible on the grounds of insufficient information necessary to support the application and a lack of causal link between the alleged harm and the facts under investigation by the Co-Investigating Judges.
CJA appealed the decision on September 17, 2010 and on June 24, 2011, the Pre-Trial Chamber of the ECCC reversed the order, announcing that over 1,700 rejected applicants would now be accepted [PDF, 17.3 MB], bringing the total number of Civil Parties to 3866. Read more on the reactions of Cambodian-American Civil Parties.
Initial hearings commenced in June 2011, addressing, among other issues, reparations to be awarded to the Civil Parties upon a conviction, and the parties' voluminous witness lists—more than 1000 in total. CJA staff attorney Nushin Sarkarati will be in court to argue on behalf of the civil parties' proposed witnesses and to support their request for reparations. Read a summary of the first week of hearings here.
The ECCC issued a decision (click here to read the decision in Khmer) on November 26, 2012 that the Accused Ieng Sary is capable of participating in his own defense and therefore fit to stand trial. Ieng Sary was previously hospitalized for dizziness and back pain and alleged, through his attorney, that his frailty affected his ability to participate in his own defense. After hearing from Medical expert John Campbell on Ieng Sary’s physical and cognitive health, the Court concluded that Ieng Sary can participate remotely through video link in the holding cell of the Tribunal in order to accommodate his frail health without disrupting the proceedings.
Photo Credits: Heng Sinith
For more information: www.eccc.gov.kh