Comments on that aspect of the Pre-trial Chamber's ruling regarding the "nexus-to-armed conflict" issue:

Regarding the Pre-trial Chamber’s determination that the “nexus-to-armed-conflict” criteria for the prosecution of crimes against humanity would be applied to Trial 02.

Two related arguments have been put forth in support for the contention that the bulk of the Khmer Rouge regime’s atrocities against Cambodians cannot be held to have been connected with war crimes perpetrated by the regime in its international conflicts with neighboring Vietnam and, at least arguably, Thailand. These arguments are that the atrocities in question were committed prior to the commencement of Cambodia’s armed conflict with Vietnam, and/or were committed in places too far removed geographically from that conflict to be considered as having been connected with it. A careful reading of documentary evidence does not support either of these arguments.

Rather, as I attempted to demonstrate in a paper prepared for the Documentation Center of Cambodia in 1999, documentary evidence strongly supports the conclusion that the Khmer Rouge regime’s internal war against political opponents throughout Cambodia was both intimately connected in theory and practice with its international war of aggression against external enemies, and that the international armed conflict(s) in question, including cross-border raids resulting in the razing of entire villages and the slaughter of their populations, were ongoing from nearly the inception of Democratic Kampuchea.

Document after document routinely prepared within the Khmer Rouge political-military hierarchy set forth the regime’s standard operating procedure of identifying and targeting “internal enemies” as agents of Vietnam and Thailand. Numerous documents show clearly that the destruction of these “internal enemies” was an integral part of the Khmer Rouge leadership’s planning and execution of its armed conflicts with Vietnam, and arguably with Thailand, in which conflicts war crimes were routinely committed against foreign civilian populations. Even without a finding that the Khmer Rouge regime had been engaged in an ongoing conflict with Thailand, the documents demonstrate that executions of “internal enemies” and other crimes against humanity committed far from the Vietnam border were an essential aspect of the regime’s strategy to defeat Vietnam.

Furthermore, should the argument be made that this association in the minds of the Khmer Rouge leadership of its “internal enemies” with the regime’s foreign enemies was mere fancy without basis in fact, one need only note that the core of the Cambodian leadership which took power under the post-Khmer Rouge Vietnamese occupation were themselves refugees from Democratic Kampuchea’s war against its internal enemies.

While this is clearly a matter for the ECCC to determine, it is submitted that the required nexus between the Khmer Rouge leadership’s commission of crimes against humanity respecting its own citizens and war crimes committed by the regime in international armed conflict is irrefutable. As such, the “nexus to armed conflict” requirement should present no bar to a prosecution of the Khmer Rouge leadership for their crimes against humanity against the people of Cambodia.

Ray.

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13 January 2011

ECCC PRESS RELEASE

CASE 002 SENT FOR TRIAL

Today, the Pre-Trial Chamber of the Extraordinary Chambers in the Courts of Cambodia (ECCC) has confirmed and partially amended the indictments against the Accused Persons Ieng Sary, Ieng Thirith, Khieu Samphan and Nuon Chea. The Pre-Trial Chamber has ordered the Accused Persons to be sent for trial and to continue to be held in provisional detention until they are brought before the Trial Chamber. The indictments include charges of crimes against humanity, genocide, grave breaches of the 1949 Geneva Conventions and murder, torture and religious persecution as defined by the 1956 Cambodian Penal Code.

The Co-Investigating Judges issued a Closing Order with the initial indictments of the Accused Persons on 15 September 2010. All four Accused Persons filed appeals against the Closing Order to the Pre-Trial Chamber.

The Pre-Trial Chamber found that the appeal filed by Khieu Samphan was inadmissible, whereas the appeals filed by Ieng Sary, Ieng Thirith and Nuon Chea were found to be admissible in part. Of the admissible parts, the Pre-Trial Chamber dismissed all the grounds of appeal with two exceptions. First, the Pre-Trial Chamber ordered that the Closing Order be amended with a specification for the requirement of the existence of a link between the underlying acts of crimes against humanity and an armed conflict.

Secondly, the Pre-Trial Chamber also found that rape did not exist as a crime against humanity in its own right in the period 1975-1979, but that rape could be considered as “other inhumane acts” within the legal definition of crimes against humanity. The Closing Order was amended accordingly. The Pre-Trial Chamber will issue reasoned decisions on the appeals at a later date.

For further information, please contact:
Lars Olsen
Legal Communications Officer, ECCC
Mobile: +855 (0) 12 488 023
Land line: +855 (0) 23 219 814 ext. 6169
Email: olsenl@un.org

Reach Sambath
Chief of Public Affairs, ECCC
Mobile: +855 (0) 12 488 156
Land line: +855 (0) 23 219 814 6064
Email: reach.sambath@eccc.gov.kh

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