Sara L. Ochs | firstname.lastname@example.org
On 16 November 2018, the Extraordinary Chambers in the Courts of Cambodia (“ECCC”) Trial Chamber announced its judgment convicting former Khmer Rouge senior leaders Nuon Chea and Khieu Samphan of genocide, crimes against humanity, and grave breaches of the Geneva Convention. While this is the first genocide conviction handed down by any hybrid criminal tribunal, the judgment convicts two defendants whom the ECCC has previously convicted and sentenced to life imprisonment. The issuance of this judgment is also underscored by widespread speculation of the ECCC’s forthcoming closure, creating concern that this could be one of the last judgments issued by the Tribunal.
Nuon Chea, alias “Brother Number 2,” was Pol Pot’s second in command during the Khmer Rouge regime. He served as the Deputy Secretary of the Communist Party of Kampuchea (“CPK”) – the nationalistic title adopted by the Khmer Rouge regime – as well as the Acting Prime Minister of the party’s government. While holding lesser power within the regime than Nuon Chea, Khieu Samphan possessed greater global notoriety, serving as the party’s symbolic head of state and the “international face of the Khmer Rouge”.
The Trial Chamber’s recent judgment is the second of two in the joint case against Nuon Chea and Khieu Samphan. The first, rendered by the Trial Chamber in Case 002/01 on 7 August 2014, convicted the defendants of crimes against humanity related to the forced movements of the Cambodian population and sentenced the defendants to life imprisonment. The second, issued in Case 002/02, broadened the scope of investigated charges to four additional categories of crimes concerning: (1) the establishment and operation of forced labor cooperatives and worksites; (2) the establishment and operation of security centers and execution sites; (3) the targeting of specific religious, cultural, and political groups, including the Vietnamese and Cham Muslims; and (4) the regulation of marriage.
The Trial Chamber’s full judgment is anticipated to be released later this month, yet the ECCC released a Summary of the Judgment on 18 November 2018. Per this summary, with regard to the genocide charges, the ECCC concluded that the Khmer Rouge regime implemented and executed a policy to target religious and racial groups, including the Cham Muslims and Vietnamese, with an “intent to establish an atheistic and homogenous society without class divisions by abolishing all ethnic, national, religious, racial, class and cultural differences”. The Trial Chamber further recognized that Nuon Chea and Khieu Samphan were active members of the joint criminal enterprise (“JCE”) formed by the senior leadership of the Khmer Rouge, and that both publicly endorsed and promoted the “common purpose” of the JCE. The Trial Chamber thus found sufficient evidence to conclude both defendants, through the JCE, committed various crimes against humanity, including murder, enslavement, and torture; grave breaches of the Geneva Convention, including willful killing, torture, and inhumane treatment; and genocide against the Vietnamese.
With regard to the Cham genocide, the Trial Chamber determined neither Nuon Chea nor Khieu Samphan possessed genocidal intent. Yet, the evidence supported a finding that Nuon Chea, along with Pol Pot, exercised ultimate decision-making authority to execute the genocidal policy, and convicted him on this charge pursuant to the doctrine of superior responsibility. Due to the fact that Khieu Samphan did not possess the same power within the regime to assist or facilitate the execution of the genocidal policy, the Trial Chamber declined to convict him for genocide against the Cham.
As the first genocide conviction rendered by a hybrid criminal tribunal, the Case 002/02 judgment is one of great historical significance and a landmark accomplishment for hybrid tribunals and international criminal law, generally. Further, through its unique and groundbreaking victim participation program, wherein surviving Khmer Rouge victims actively participate in the proceedings as civil parties, the ECCC has provided victims with a level of ownership over the judicial process leading to Nuon Chea and Khieu Samphan convictions. Such participation is especially significant for the survivors of the Khmer Rouge regime, which resulted in the deaths of approximately two million civilians and decimated nearly a quarter of the Cambodian population. The importance of the conviction is compounded by its timing, having been issued shortly before the 70th anniversary of the Convention on the Prevention and Punishment of the Crime of Genocide. At the time of publication, 145 U.N. member states, including Cambodia and Myanmar, have ratified the Genocide Convention, leaving 45 states which have yet to do so.
Yet, despite the magnitude of the ECCC’s genocide conviction, widespread critiques of the Tribunal mute the significance of this recent judgment. Despite twelve years of proceedings, the convictions against Nuon Chea and Khieu Sampahn are only the fourth and fifth rendered by the Tribunal, against only three defendants. Rather than prosecute additional defendants, the ECCC conducted two full-scale and expensive trials against the same two defendants, resulting in two independent convictions rendering identical punishment. This approach has sparked criticism, especially in light of the ECCC’s budgetary restrictions. As of October 2018, the ECCC had incurred financial expenditures in excess of $318 million, surpassing its initial projected budget of $50 million more than six-fold.
Further, given the nearly forty years that have passed since the fall of the Khmer Rouge, the defendants before the Tribunal are now frail and elderly, shells of the fearsome, ruthless leaders they once were. The second life sentences provide limited practical punishment for 92-year old Nuon Chea and 87-year old Khieu Samphan. Moreover, in December, the ECCC dismissed Victor Koppe, the international defense counsel for Nuon Chea, for failing to maintain his membership with the bar of the Netherlands since 2006, thereby precluding him from legally practicing in Cambodia during the time of the Case 002/02 trial. At the time of publication, it is unclear what effect, if any, Mr. Koppe’s impropriety will have on appeal of Nuon Chea’s conviction.
The ECCC remains plagued by various issues, from the constant search for voluntary international funding to revive its depleting budget, to the apparent lack of judicial independence caused by the Cambodian Government’s pervasive political interference in blocking investigations and prosecutions. The Cambodian Co-Prosecutor has consistently spurned investigations into and prosecutions of additional Khmer Rouge leaders to commit ECCC resources exclusively to Case 002/02, so that the Tribunal “sufficiently fulfil[ls] [its] mandate,” and to prevent what she believes would give rise to “domestic political disruption and serious potential social unrest.” This position echoes the public statements made by Hun Sen, Cambodia’s long-serving Prime Minister and an ex-Khmer Rouge cadre, who has consistently expressed his dissatisfaction with the ECCC and called for its imminent closure. In addition to noting his desire to “dig a hole to bury the past,” the Prime Minister has repeatedly threatened that prosecutions beyond the three defendants convicted by the ECCC will return the nation to a bloody civil war. Now that Case 002/02 is concluded, it is anticipated that the Cambodian Co-Prosecutor, subject to Hun Sen’s influence, will strengthen her commitment to dismissing the remaining three cases before the Tribunal, supporting widespread concerns of the ECCC’s potential closure. Given this climate, there is a serious likelihood that this most recent judgment may be one of, if not the ECCC’s last.
Yet, despite these flaws, the ECCC’s genocide conviction creates pertinent precedent for the prosecution of genocide by hybrid tribunals in future years. The impact of this judgment is especially prescient in light of the atrocities committed against the Rohingya Muslims in Myanmar, an undoubtedly clear case of ethnic cleansing and one which the U.N. Human Rights Council has recognized as genocide. While the mechanism for prosecuting the Myanmar forces responsible for these atrocities has yet to be determined, it is possible the international community may turn to the use of a hybrid tribunal for these prosecutions, in which case the ECCC’s genocide conviction will certainly be relied upon as authority.
Sara Ochs is a teaching fellow at Elon University School of Law in Greensboro, North Carolina, where she teaches Introduction to Legal Studies and Legal Method & Communication. Her research concerns the prosecution of mass atrocities by international and hybrid criminal courts, with a specific emphasis on the Extraordinary Chambers in the Courts of Cambodia. She earned her Juris Doctor from Loyola University New Orleans College of Law.