On 23 November 2016, the Supreme Court Chamber (SCC) of the Extraordinary Chambers in the Courts of Cambodia (ECCC) delivered its Appeal Judgment in Case 002/01 against former Khmer Rouge leaders Nuon Chea and Khieu Samphan.

Nuon Chea, former Deputy Secretary of the Communist Party of Kampuchea, and Khieu Samphan, former Head of State of Democratic Kampuchea, were convicted by the Trial Chamber in August 2014 for crimes against humanity committed during the forced evacuation of Phnom Penh in April 1975 and subsequent forced transfer from other areas, as well as alleged execution of former Khmer Republic soldiers in Tuol Po Chrey in Pursat Province.

Both defendants appealed the decision, asking for a reversal of the trial judgment and to be acquitted of all charges, or failing that, Khieu Samphan asked for a reduced sentenced to a set number of years. Nuon Chea submitted 223 grounds of appeal and Khieu Samphan submitted 148 grounds of appeal. Their appeal arguments related to the constitutionality of the ECCC’s Internal Rules and the fairness of the proceedings; the Trial Chamber’s approach to evidence; the Trial Chamber’s findings relevant to the crimes for which the accused were convicted; and the accused’s individual criminal responsibility.

Appeal of the accused

In a 520-page ruling, the Supreme Court Chamber today upheld Nuon Chea’s and Khieu Samphan’s convictions for crimes against humanity of murder, persecution on political grounds and other inhumane acts in relation to the evacuation of Phnom Penh immediately after the fall of the city on 17 April 1975. In relation to the second phase of population transfers that occurred between 1975 and 1977, the Chamber affirmed the Accused’s conviction for the crime against humanity of other inhumane acts, and entered a conviction for the crime against humanity of murder.

The Supreme Court Chamber, consisting of seven judges, reversed the convictions entered by the Trial Chamber for the crime against humanity of extermination in relation to the evacuation of Phnom Penh and the second phase of population transfers. It found that the evidence before the Trial Chamber in relation to the population movements did not establish beyond reasonable doubt the requisite killings on a large scale committed with direct intent.

In relation to the second phase of population transfers, the Supreme Court Chamber also reversed the Trial Chamber’s convictions for the crime against humanity of persecution on political grounds, having found that the evidence had not established that the vast majority of evacuees had been “New People”. As such, it has not been established that the transfers was, in fact, discriminatory.

The Supreme Court Chamber reversed Nuon Chea’s and Khieu Samphan’s convictions for the crimes against humanity of extermination, murder and persecution on political grounds at Tuol Po Chrey, as it found that the events could not be imputed to the accused.

The SCC further critised the decision of the Trial Chamber not to summon Heng Samrin, a former Khmer Rouge commander and the current president of Cambodia’s National Assembly. It considered that it had not been established that the Trial Chamber’s failure to call Heng Samrin resulted in a “grossly unfair outcome in the judicial proceedings”, but it would draw reasonable inferences in favour of the accused where appropriate.

Notwithstanding the fact that the SCC found several errors in some of the Trial Chamber’s conclusion and reversed some of the accused’s convictions, the SCC confirmed the life sentence for each of the accused as imposed by the Trial Chamber. It concluded that the imposition of a life sentence was appropriate given the gravity of the crimes, the massive scale of the crimes, the complete lack of consideration for the ultimate fate of the Cambodian population, the fact that the crimes were not isolated events, and the significant role of the accused.

Appeal of the Co-Prosecutors

The SCC declared that the Co-Prosecutors appeal in relation to the applicability of the mode of liability referred to as the “third” or “extended” form of joint criminal enterprise (JCE III) in 1975 was inadmissible as it was procedurally defective.

However, the SCC noted that the appeals brought by the accused had provided the SCC with an opportunity to analyse the notion of JCE, including aspects which were directly relevant to the questions raised by the Co-Prosecutors appeal. When dealing with the appeal ground of the accused relating to the accused’s individual criminal responsibility, the SCC critised existing jurisprudence of the ICTY which accepted the notion of JCE III in the post-World War II period. The SCC confirmed the Trial Chamber’s finding that 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. It thereby excluded the applicability of JCE III in future proceedings before the ECCC.

Background

On 15 September 2010, Nuon Chea and Khieu Samphan (together with Ieng Sary and Ieng Thirith) were indicted on charges of crimes against humanity, genocide and grave breaches of the Geneva Conventions of 1949 in what is referred as Case 002 before the ECCC. As Ieng Thirith was found unfit to stand trial, and Ieng Sary died on 14 March 2013, the two remaining defendants in Case 002 are Khieu Samphan and Nuon Chea.

In September 2011, Case 002 was severed into two separate trials. Case 002/01 commenced on 21 November 2011 and primarily dealt with alleged crimes against humanity related to the forced movement of the population from Phnom Penh and later from other regions, and execution of Khmer Republic soldiers at Tuol Po Chrey execution site.

Case 002/02 deals with the crimes of genocide against the Cham and Vietnamese, forced marriages and rape, internal purges, crimes committed in security centres and worksites, the treatment of Buddhists, and the targeting of former Khmer Republic Officials. Trial hearings in Case 002/02 commenced on 17 October 2014 and a Trial Judgment is expected to be delivered in the course of 2017.