A Long Time Coming: Understanding the Landmark Ruling from the Khmer Rouge Trials

On Friday morning in Phnom Penh, the Trial Chamber of the Extraordinary Chambers in the Courts of Cambodia (ECCC)—more commonly known as the Khmer Rouge Trials―delivered a summary of the judgment in the most significant case the court will try. The defendants are the two most senior surviving leaders of the Khmer Rouge, and the crimes are the broadest representation of what occurred in Cambodia in the late 1970s. Formally known rather dryly as “Case 2/2,” the ruling is momentous in a number of ways, even though the full reasoning has not yet been released. Here, I will give some context for the judgment and highlight some key findings. In the interests of full disclosure, I should also note that I was previously a prosecutor at the ECCC, including as a member of the team that prosecuted Case 2/2 and its predecessor, Case 2/1 (more on those numerical designations shortly).

Background on the Regime and the Court

Before turning to the judgment issued last week, it may be helpful to briefly touch upon the path that brought us to this point. The Khmer Rouge controlled Cambodia—under the name Democratic Kampuchea—from 1975 to 1979. Named the “Khmer Rouge” or “Red Khmer” by the French-fluent King of Cambodia, Norodom Sihanouk (who also served for a time as Prime Minister), the regime brutally implemented a radical communist ideology of forced collectives, back-breaking labor, abolishment of private property and individual rights, forced relocations, and targeting of various groups perceived as enemies, including the educated, the religious, those who had worked for previous governments, minorities and city dwellers. Coupled with doses of xenophobia, paranoia, lust for power, and delusions of grandeur, the Khmer Rouge’s policies led to a horrific state of inhumanity that included separations of families, starvation, imprisonment, torture, and executions.

While firm numbers are impossible to establish, estimates of the excess death toll—meaning the number of victims that died who under normal conditions would not have—during the period of Democratic Kampuchea is somewhere in the vicinity of 2 million, approximately one-fifth to one-quarter of the total population of the country at the time. The next time you find yourself in a crowded place, try counting people off by fours and imagine if each fourth person were to be killed through outright murder, or through starvation and disease, and it will give you a sense of the enormity of what transpired in Cambodia during that time. Then further consider that that number does not capture the countless other victims that were harmed in myriad ways short of death.

The Communist Party of Kampuchea (CPK), often referred to as “Angkar” (meaning, “The Organization” in the Cambodian language) during the regime, was the locus of power in the state, and its hierarchy was used to exert control across Democratic Kampuchea. At the top of this hierarchy sat, first, the Party Secretary, Saloth Sar, known more infamously by his revolutionary name, Pol Pot; then, a small group of party elites called the Standing Committee; and after that, a larger group of party elites called the Central Committee. Persons within these apex bodies, in conjunction with others, set policies that officials and underlings carried out nation-wide. Those lower down then reported the implementation of the policies back up this hierarchal order. After almost four years in power, the Khmer Rouge regime came to an end in early January 1979 after Vietnam invaded the country and quickly toppled the CPK. This followed years of tension and skirmishes between the former allies. Many Khmer Rouge members then fled to the northwest of the country and just over the border in Thailand, where they reestablished a base of operations that was active for years.

A variety of factors including the Cold War, the devastation wrought by the Khmer Rouge, domestic politics, and the lack of international support, meant that an international court to cover the Khmer Rouge crimes did not begin to be discussed seriously until the mid-1990s. After a series of negotiations, the ECCC was established as a joint, or “hybrid,” court between the United Nations and the Cambodian government in 2003.

Case 1

The first trial at the ECCC, “Case 1,” was against Kaing Guek Eav, whose revolutionary alias was “Duch.” Duch was the head of the S-21 security center in Phnom Penh, a former school converted into a prison in which thousands of victims were imprisoned, tortured, and sent to their deaths at the infamous “killing fields.” If you have seen black and white portrait photographs of Khmer Rouge prisoners they are from S-21. Many of the prisoners there were photographed shortly after arriving as part of a macabre cataloguing system. Today, S-21, also known as Tuol Sleng (“hill of the poisonous trees” in the local language), is a museum dedicated to preserving the memory of the victims of the Khmer Rouge and educating the public regarding the atrocities committed by the regime.

Duch confessed to much of what he was charged with, although the extent to which he was entirely forthcoming is the subject of some debate. He nevertheless ultimately chose to challenge whether the court rightfully had the jurisdiction to adjudicate his case. Those arguments failed, he was convicted of various crimes against humanity and war crimes, and is serving a life sentence in a prison on the outskirts of Phnom Penh.

Case 2

From the outset, Case 2 was vastly different from, and more complex than, Case 1. Where Case 1 was against a single, relatively junior perpetrator who admitted many of his crimes, which took place largely in a couple of locations (S-21 and a related execution site), Case 2 was against four high-ranking perpetrators who contested their culpability for crimes at sites spread throughout the country. In addition, Case 2, unlike Case 1, involved charges of genocide.

The four defendants in Case 2 originally were: Nuon Chea, deputy secretary of the CPK, member of the Standing Committee, and second only in power to Pol Pot (he was also known as “Brother Number Two”); Khieu Samphan, member of the Central Committee, frequent attendee at Standing Committee meetings, and formally president of the State Presidium; Ieng Sary, deputy prime minister for Foreign Affairs and member of the Standing Committee; and, Ieng Thirith, minister of Social Affairs (and also Ieng Sary’s wife).

Recognizing the size of the case (the indictment topped out at over 700 pages), and the consequent potential length of time required to complete a single trial on all of the charges, not to mention the age of Nuon Chea and Khieu Samphan, who were both in their 80s by the time trial began, the Trial Chamber decided to split Case 2 into multiple smaller trials. This is where the Case 2/1 and Case 2/2 designations come from.

Case 2/1 mainly focused on crimes against humanity related to forced movements of the population—including the expulsion of all inhabitants from the capital and other cities within days of the Khmer Rouge’s assumption of control in April 1975―and the mass killing of soldiers from the deposed Khmer Republic at a place called Tuol Po Chrey between 1975 and 1977.

By the time the Case 2/1 trial concluded, only two defendants—Nuon Chea and Khieu Samphan—were left. Before trial even began, Ieng Thirith was removed from the case because she developed dementia, and her cognitive decline meant she was unable to participate in her defense and therefore could not be tried. She ultimately passed away in 2015 at the age of 83. Ieng Sary remained a defendant in the trial for over a year, but died of heart failure while the trial was still ongoing in 2013, and as a result all charges against him were dismissed. (Ieng Sary and Ieng Thirith–and others–are nevertheless implicated in the court’s findings of a “joint criminal enterprise” in Case 2.) Following trial and appeals in Case 2/1, Nuon Chea and Khieu Samphan were convicted of multiple crimes against humanity and sentenced to life in prison.

That brings us to Case 2/2, the last of the Case 2 trials (although not every single potential crime in the Case 2 indictment was tried in those two cases cumulatively, the remainder of the allegations were dismissed). As already mentioned, Nuon Chea and Khieu Samphan are the most senior, still surviving leaders of the Khmer Rouge (Pol Pot died at the age of 73 in 1998, before he could be taken into custody, and thus was never tried at the ECCC), and Case 2/2 represents the opportunity for the fullest accounting of their crimes — including war crimes (i.e., Grave Breaches of the Geneva Conventions of 1949), crimes against humanity, and genocide — throughout Cambodia, in a number of different circumstances, and over the entire duration of Khmer Rouge control. The trial in Case 2/2 lasted over two years, the court heard testimony from over 180 witnesses, and over 10,000 documents were in evidence.

The Case 2/2 Judgment

What the court delivered on Friday was only a summary, and thus much about the court’s reasoning and findings is yet to be made public. The following are brief notes on just some of the crimes for which the court announced guilty verdicts:

Genocide: Although the mass killing that was perpetrated by the Khmer Rouge is often colloquially referred to as a “genocide,” the vast majority of the victims were not targeted based on one of the prohibited bases laid out in the Genocide Convention—i.e., they were not targeted on the basis of national, ethnic, racial, or religious identity—and therefore were not victims of a genocide in the strict legal sense of the word. Rather, they were targeted for other reasons, such as their real or perceived political views, and while their treatment might constitute other crimes such as murder or extermination, the Genocide Convention does not apply to political groups.

Therefore, the Case 2/2 genocide charges were against two distinct groups: 1) persons of Vietnamese ethnicity, and 2) the Cham, a Muslim minority group in Cambodia. The two groups were targeted in different ways, and the Khmer Rouge policies regarding them each evolved over time, but ultimately members of both groups were subject to large-scale killings.

The Trial Chamber found that the Khmer Rouge had perpetrated genocide against both groups. In relation to the Vietnamese, both defendants in Case 2/2 were found liable for the genocide. However, in relation to the Cham, the court found only Nuon Chea guilty. The court held there was insufficient evidence to determine that either of the defendants had the required specific intent that genocide requires in regards to the Cham, but that Nuon Chea was liable because he had superior responsibility over those who did commit genocide against the Cham, whereas Khieu Samphan did not.

These genocide convictions are significant because they are the first genocide convictions at the ECCC (and potentially the last as well, depending on whether there are any future trials in other cases). In addition, measured by the dates of the crimes, these are the earliest convictions for genocide at any international or internationalized tribunal.

Forced marriages and rape: The trial chamber found the defendants guilty of forced marriages and rape within those marriages. The Khmer Rouge implemented a policy of coercively matching couples and then pressuring intercourse between them with the aim of rapidly growing the population in order to provide a larger workforce. Couples would frequently only find out who they would be wed to hours or minutes before they were married, and dozens of couples were often married at one time.

The court pointedly rejected defense arguments that the role that the Khmer Rouge played in choosing partners for victims in forced marriages could not be illegal because it was purportedly similar to traditional Cambodian practices of arranged marriage, stating: “The evidence put before the Chamber clearly demonstrates a practice during the Democratic Kampuchea regime that was far from reflective of traditional Khmer wedding tradition: families of future spouses were not involved at all in the negotiation, communities were not included, tradition was absent from wedding ceremonies and individuals agreed to get married for fear of being punished by the Party.”

Security Centers: Case 2/2 included four security centers as crime sites, including the S-21 security center in Phnom Penh that was the subject of Case 1. The court found the defendants guilty of various crimes at these security centers for the treatment of prisoners there, including torture and execution. The court summarized what some of these torture methods included: “beatings with sticks, rods, electrical wire, whips and other tools; electroshocks; suffocation through covering the head with a plastic bag; covering the mouth and nose with a towel and pouring cold water from a kettle; and the extraction of toenails and fingernails.”

One witness who worked at S-21 explained during trial that prisoners brought to the security center were already deemed to be enemies who needed to be interrogated into confessing their traitorous activities, after which they would be “smashed,” a common Khmer Rouge euphemism for execution. While the court found “at least” 11,742 S-21 prisoners were executed, through painstaking work that drew on various S-21 records and analysis performed by other researchers, the prosecution office at the ECCC has identified over 18,000 victims who passed through S-21 including women and children, and there were doubtless many more whose identities were not reflected in extant records for various reasons.

Worksites: The crime sites in Case 2/2 included three discrete worksites where Cambodians were forced to labor under appalling conditions, as well as a collective where victims performed various types of work. Two of these worksites were massive, almost entirely hand-built, earthen dams. The Khmer Rouge economic plan was to grow unprecedented (and unrealistic) amounts of rice for export, and to use the income and traded goods from those exports to rapidly industrialize. However, to grow such large amounts of rice—the goal in many areas was three tons of rice paddy per hectare—required huge amounts of water. Storing that water required dams so that it could be used as needed, particularly in order to grow rice during the dry season, hence the worksites. This economic plan of rice growth leading to industrialization can be seen reflected in the official emblem of Democratic Kampuchea, which shows rice sheaves framing a dam in the foreground, green rice plots in the middle distance, and in the far distance, the eventual goal of a factory ejecting smoke from its dual smokestacks.

The third worksite in Case 2/2 was an airfield built north of the capital with the help of Chinese advisers. The court convicted the defendants of various crimes against humanity for the mistreatment of victims–including enslavement and persecution, sometimes ending in executions–at these sites.

Targeting of Buddhists and Khmer Republic Officials: The Khmer Rouge saw all religion, including Buddhism, as a threat to their ideology. They also regarded any officials who had worked with the Khmer Republic regime, which they had overthrown, as inherently opposed to the revolution. Members of both groups were targeted. Monks were forcibly disrobed, and Buddhist temples desecrated or destroyed. Khmer Republic officials were sought out, often through a process of requiring the writing of “biographies,” and mistreated and killed. The court found that the defendants were guilty of persecution against both groups, and also murder in regards to Khmer Republic officials.

Moving Forward

There will be much more to digest when the full judgment is issued (the court has not yet provided a date for when that will be), but these convictions are subject to appeal, and the parties will have to assess what, if any, aspects of the ruling they wish to appeal. Attorneys for at least one of the defendants have apparently already stated that they intend to appeal.

It remains to be seen whether Case 2/2 is the final trial at the ECCC. While the Co-Prosecutors have been clear that they will not commence any new investigations of possible defendants, there are three other cases—against Meas Muth, Ao An, and Yim Tith—that are still at various pre-trial stages, and it is not clear if any of these will be sent to trial.

Following the collapse of the regime, many Cambodians ended up in refugee camps just across the border in Thailand. Some of these refugees were then resettled in the United States in places like Long Beach, California and Lowell, Massachusetts, where today there are still large Cambodian-American communities. While no judgment can ever hope to provide full justice for the enormity of crimes committed under a regime like the Khmer Rouge, one Cambodian-American Khmer Rouge survivor who immigrated to the U.S. perhaps captured it best when she told a reporter:

“The journey to find justice can be long and, at times, very trying as victims carry our losses and become re-traumatized because the light at the end of the tunnel seems to get dimmer at times. The process of standing up and perseverance with our demands for justice is how we honor those whom we have lost, ourselves and for humanity.”

This handout photo, taken and released by the Extraordinary Chambers in the Courts of Cambodia (ECCC) on November 16, 2018, shows former Khmer Rouge leader head of state Khieu Samphan stands during his verdict in court at the ECCC in Phnom Penh. Photo by NHET SOK HENG/AFP/Getty Images

 

About the Author(s)

Andrew Boyle

Counsel in the Liberty and National Security Program at the Brennan Center for Justice; previously prosecuted senior Khmer Rouge leaders on behalf of the United Nations for war crimes, crimes against humanity, and genocide