ŪĮй Ŭď ₧ ş Ū˝ ˝ ņįО ďďĳЊ ⅜₤Ĝ ŪĮйņΉ˝℮ŪĳGgÁCMnMuCRmHvisamBaØkñúgtulakarkm<úCa
Extraordinary Chambers in the Courts of Cambodia
Chambres Extraordinaires au sein des Tribunaux Cambodgiens

Kingdom of Cambodia
Nation Religion King
Royaume du Cambodge
Nation Religion RoiΒ₣ðĄеĕНеĄŪņй⅜ŵřеĠР₣

Trial Chamber
Chambre de première instance₤е‗еЮН ũЩ₣ЮŲŠк ƠƠơ/ơ ˝˝˛ Ţ ƯƠỚ/Βŷĳ˝/ΒĄ₤řCase File/Dossier No. 001/18-07-2007//ECCC/TC
Before:Judge NIL Nonn, President
Judge Silvia CARTWRIGHT
Judge YA Sokhan
Judge Jean-Marc LAVERGNE
Judge THOU MonyGreffiers:

LIM Suy-Hong, Matteo CRIPPA, SE Kolvuthy,
Natacha WEXELS-RISER, DUCH Phary

Duration of hearing:

30 March 2009 until 27 November 2009

Date:

26 July 2010

Classification:

PUBLICJUDGEMENT
Co-Prosecutors
CHEA Leang
Andrew T. CAYLEYYET Chakriya
William SMITH

AccusedLawyers for the Civil Parties
TY Srinna
Karim KHAN
Alain WERNER
Brianne McGONIGLE
KONG Pisey
YUNG Panith
Silke STUDZINSKY
HONG Kimsuon
Pierre Olivier SUR

KIM Mengkhy
MOCH Sovannary
Martine JACQUIN
Philippe CANONNE
Fabienne TRUSSES-NAPROUS
Christine MARTINEAU
Annie DELAHAIE
Elizabeth RABESANDRATANAKAING Guek Eav alias Duch
Lawyers for the Defence
KAR Savuth
François ROUXMarie-Paule CANIZARÈS

pøvÚ Catielx 4 sgáat; ecamecA x½NÐ degáa RkugPñeM Bj km<Cú a RbGb;sbM Ru t 71 TUrs½B³Þ ¬855¦-23-219-814 TUrsar³ ¬855¦-23-219-841 eKhTMBr½ ³www.eccc.gov.kh
National Road 4, Chaom Chau, Dangkao Phnom Penh Mail Po Box 71, Phnom Penh Tel:+855(0)23 218914 Fax:023 218941 Web:www.eccc.gov.kh

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TABLE OF CONTENTS
1INTRODUCTION ................................................................................. 1
1.1
ESTABLISHMENT OF THE ECCC ................................................................................................... 1
1.2
BRIEF PROCEDURAL OVERVIEW OF THE CASE ............................................................................. 2
1.3
THE CHARGES AGAINST THE ACCUSED ........................................................................................ 3
1.4
JURISDICTION OF THE CHAMBER OVER THE ACCUSED ................................................................. 4
1.4.1
Subject-Matter,Temporal and Territorial Jurisdiction ........................................................... 5
1.4.2
Personal Jurisdiction.............................................................................................................. 5
1.5
THE PRINCIPLE OF LEGALITY ....................................................................................................... 9
1.6
THE INTERNAL RULES AND APPLICABLE EVIDENTIARY PRINCIPLES .......................................... 12
1.6.1
Governing Procedural Law .................................................................................................. 12
1.6.2
The Case File........................................................................................................................ 13
1.6.3
Admissibility of Evidence...................................................................................................... 13
1.6.4
Burden and Standard of Proof.............................................................................................. 15
1.6.5
Sources of Evidence Put Before the Chamber ...................................................................... 15
1.6.5.1
1.6.5.2
1.6.5.3
1.6.5.4

1.6.6

2

Agreed facts and admissions by the Accused............................................................................. 15
Questioning of the Accused and the privilege against self-incrimination .................................. 17
Witnesses, Civil Parties and Experts.......................................................................................... 17
Documents ................................................................................................................................. 18

Spelling of Names and Locations.......................................................................................... 19

FACTUAL AND LEGAL FINDINGS............................................... 20
2.1
HISTORICAL CONTEXT AND ARMED CONFLICT .......................................................................... 20
2.1.1
April 1975 to 31 December 1977.......................................................................................... 23
2.1.2
31 December 1977 to 7 January 1979.................................................................................. 27
2.2
OVERVIEW OF DK PERIOD ......................................................................................................... 29
2.2.1
CPK structure ....................................................................................................................... 31
2.2.2
The Constitution of Democratic Kampuchea........................................................................ 34
2.2.3
The Judiciary ........................................................................................................................ 35
2.2.4
The Military .......................................................................................................................... 35
2.2.5
Relevant CPK policy............................................................................................................. 36
2.2.5.1
2.2.5.2

Secrecy....................................................................................................................................... 36“Smashing” enemies .................................................................................................................. 37

2.2.6
30 March 1976 Directive...................................................................................................... 38
2.2.7
Dissemination of CPK policy................................................................................................ 392.2.8
CPK security structure ......................................................................................................... 41
2.3
S-21 AND THE ROLE OF THE ACCUSED ....................................................................................... 42
2.3.1
Relevant background information ........................................................................................ 42
2.3.2
M-13 ..................................................................................................................................... 43
2.3.3
S-21....................................................................................................................................... 45
2.3.3.1
Establishment of S-21 ................................................................................................................ 45
2.3.3.2
Initial locations of S-21.............................................................................................................. 46
2.3.3.3
Appointment and role as Deputy of S-21 ................................................................................... 46
2.3.3.4
Appointment and role as Chairman of S-21 ............................................................................... 47
2.3.3.4.1
Relocation of S-21 ................................................................................................................ 49
2.3.3.4.2
Overview of S-21 detainees .................................................................................................. 50
2.3.3.4.3
Organisation of S-21............................................................................................................. 52
2.3.3.4.3.1 The Documentation Unit ................................................................................................ 52
2.3.3.4.3.2 The Interrogation Unit.................................................................................................... 55
2.3.3.4.3.3 The Defence Unit ........................................................................................................... 57
2.3.3.4.3.4 Other S-21 Units............................................................................................................. 58
2.3.3.5
Responsibilities as Chairman of S-21 ........................................................................................ 58
2.3.3.5.1
Recruitment of staff .............................................................................................................. 58

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2.3.3.5.2
Training of staff .................................................................................................................... 59
2.3.3.5.3
Role in arrests ....................................................................................................................... 60
2.3.3.5.4
Role as regards confessions .................................................................................................. 63
2.3.3.5.5
Role in executions................................................................................................................. 65
2.3.3.6
Choeung Ek................................................................................................................................ 67
2.3.3.7
S-24............................................................................................................................................ 68
2.3.3.8
Abandonment of S-21 ................................................................................................................ 72

2.4
FACTS RELEVANT TO CRIMES AGAINST HUMANITY COMMITTED AT S-21 ................................. 73
2.4.1
Murder and extermination.................................................................................................... 73
2.4.1.1
2.4.1.2
2.4.1.3
2.4.1.4
2.4.1.5
2.4.1.6

2.4.2

Enslavement.......................................................................................................................... 79

2.4.2.1
2.4.2.2

2.4.3

Living and working conditions at S-24 ...................................................................................... 80
Enslavement of detainees within the S-21 complex ................................................................... 82

Imprisonment ........................................................................................................................ 83

2.4.3.1
2.4.3.2

2.4.4

Execution of foreign nationals ................................................................................................... 74
Execution of high-ranking detainees.......................................................................................... 75
Execution of S-21 staff .............................................................................................................. 75
Execution of children ................................................................................................................. 76
Mass executions ......................................................................................................................... 77
Methods of execution................................................................................................................. 78

Arbitrary deprivation of liberty .................................................................................................. 83
Without due process of law........................................................................................................ 84

Torture, including rape......................................................................................................... 84

2.4.4.1
The use of torture within the S-21 complex ............................................................................... 85
2.4.4.1.1
Torture techniques ................................................................................................................ 85
2.4.4.1.2
Specific incidents of torture .................................................................................................. 88
2.4.4.2
Purpose of torture....................................................................................................................... 89
2.4.4.3
Official capacity of the perpetrators........................................................................................... 90

2.4.5

Other inhumane acts............................................................................................................. 91

2.4.5.1
2.4.5.2
2.4.5.3
2.4.5.4
2.4.5.5
2.4.5.6

Detention conditions within the S-21 complex .......................................................................... 91
Deprivation of adequate food..................................................................................................... 94
Lack of sanitation and hygiene................................................................................................... 95
Deprivation of medical treatment............................................................................................... 96
Blood drawing and medical experiments ................................................................................... 96
Treatment of detainees at Choeung Ek and S-24 ....................................................................... 96

2.4.6
Persecution on political grounds.......................................................................................... 98
2.5
APPLICABLE LAW AND FINDINGS ON CRIMES AGAINST HUMANITY ........................................... 99
2.5.1
Chapeau requirements for Article 5 of the ECCC Law ...................................................... 105
2.5.1.1
2.5.1.2
2.5.1.3
2.5.1.4
2.5.1.5
2.5.1.6

2.5.2

Findings on chapeau requirements for Article 5 of the ECCC Law ................................... 114

2.5.2.1
2.5.2.2
2.5.2.3
2.5.2.4
2.5.2.5
2.5.2.6

2.5.3

Attack....................................................................................................................................... 105
Widespread or systematic ........................................................................................................ 106
Directed against any civilian population .................................................................................. 106
On national, political, ethnical, racial or religious grounds...................................................... 111
Nexus between the acts of the accused and the attack.............................................................. 113
Knowledge requirement ........................................................................................................... 114
Attack....................................................................................................................................... 114
Widespread or systematic ........................................................................................................ 115
Directed against any civilian population .................................................................................. 115
On national, political, ethnical, racial or religious grounds...................................................... 116
Nexus between the acts of the Accused and the attack ............................................................ 116
The Accused’s knowledge ....................................................................................................... 117

Law and findings on offences as crimes against humanity................................................. 117

2.5.3.1
2.5.3.2
2.5.3.3
2.5.3.4
2.5.3.5
2.5.3.6
2.5.3.7
2.5.3.8
2.5.3.9

Murder and extermination........................................................................................................ 117
Findings on murder and extermination .................................................................................... 120
Enslavement............................................................................................................................. 120
Findings on enslavement.......................................................................................................... 121
Imprisonment ........................................................................................................................... 122
Findings on imprisonment........................................................................................................ 123
Torture ..................................................................................................................................... 123
Findings on torture................................................................................................................... 126
Rape ......................................................................................................................................... 126

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2.5.3.10
Findings on rape as torture....................................................................................................... 127
2.5.3.11
Other inhumane acts................................................................................................................. 128
2.5.3.12
Findings on other inhumane acts.............................................................................................. 129
2.5.3.13
Persecution on political grounds .............................................................................................. 130
2.5.3.14
Findings on persecution on political grounds........................................................................... 132
2.5.3.14.1 The discriminatory policies underlying these offences ....................................................... 133
2.5.3.14.2 Discriminatory consequences of these policies................................................................... 135
2.5.3.14.3 The Accused’s specific intent ............................................................................................. 136
2.5.3.14.4 Opinion of the majority....................................................................................................... 136
2.5.3.14.5 Dissenting opinion of Judge Cartwright ............................................................................. 138

2.6
LAW AND FINDINGS ON GRAVE BREACHES OF THE GENEVA CONVENTIONS OF 1949 .............. 139
2.6.1
Chapeau requirements for Article 6 of the ECCC Law ...................................................... 142
2.6.1.1
2.6.1.2
2.6.1.3
2.6.1.4
2.6.1.5

2.6.2

Findings on chapeau requirements for Article 6 of the ECCC Law ................................... 147

2.6.2.1
2.6.2.2
2.6.2.3
2.6.2.4

2.6.3

Existence of an armed conflict ................................................................................................. 143
International character of the armed conflict........................................................................... 143
Nexus between the acts of the accused and the armed conflict ................................................ 145
Status as “protected persons” under the Geneva Conventions of 1949 .................................... 145
Knowledge of the accused ....................................................................................................... 146
Existence of an international armed conflict ............................................................................ 147
Nexus between the acts of the Accused and the armed conflict ............................................... 147
Status as “protected persons” under the Geneva Conventions of 1949 .................................... 148
Knowledge of the Accused ...................................................................................................... 149

Law and findings on offences as grave breaches of the Geneva Conventions of 1949....... 150

2.6.3.1
Wilful killing............................................................................................................................ 150
2.6.3.2
Findings on wilful killing......................................................................................................... 150
2.6.3.3
Torture or inhumane treatment................................................................................................. 151
2.6.3.4
Findings on torture or inhumane treatment .............................................................................. 153
2.6.3.4.1
Torture ................................................................................................................................ 153
2.6.3.4.2
Inhumane treatment ............................................................................................................ 154
2.6.3.5
Wilfully causing great suffering or serious injury to body or health ........................................ 155
2.6.3.6
Findings on wilfully causing great suffering or serious injury to body or health ..................... 156
2.6.3.7
Wilfully depriving a prisoner of war or civilian of the rights of fair and regular trial.............. 157
2.6.3.8
Findings on wilful deprivation of fair trial rights ..................................................................... 157
2.6.3.9
Unlawful confinement of a civilian.......................................................................................... 158
2.6.3.10
Findings on unlawful confinement of a civilian....................................................................... 159

2.7
INDIVIDUAL CRIMINAL RESPONSIBILITY OF THE ACCUSED ....................................................... 160
2.7.1
Committing ......................................................................................................................... 163
2.7.1.1
Committing through physical perpetration or culpable omission............................................. 164
2.7.1.2
Findings on committing through physical perpetration or culpable omission .......................... 164
2.7.1.3
Committing through participation in a joint criminal enterprise .............................................. 166
2.7.1.3.1
Submissions and procedural history.................................................................................... 166
2.7.1.3.2
Internal Rule 98(2).............................................................................................................. 168
2.7.1.3.2.1 Fair trial rights of the Accused ..................................................................................... 170
2.7.1.3.3
Applicability of joint criminal enterprise before the ECCC................................................ 173
2.7.1.3.3.1 The notion of joint criminal enterprise ......................................................................... 173
2.7.1.3.3.2 Applicability pursuant to Article 29 (new) of the ECCC Law...................................... 177
2.7.1.4
Findings on committing through participation in a joint criminal enterprise ........................... 178

2.7.2
2.7.3
2.7.4
2.7.5
2.7.6
2.7.7
2.7.8
2.7.9
2.7.10Planning ............................................................................................................................. 180
Findings on planning.......................................................................................................... 180
Instigating........................................................................................................................... 181
Findings on instigating ....................................................................................................... 182
Ordering ............................................................................................................................. 182
Findings on ordering .......................................................................................................... 183
Aiding and abetting ............................................................................................................ 184
Findings on aiding and abetting......................................................................................... 185
Superior responsibility................................................................................................... 186

2.7.10.1
2.7.10.2
2.7.10.3
2.7.10.4

Superior-subordinate relationship ............................................................................................ 187
Superior knew or had reason to know ...................................................................................... 188
Failure to prevent or punish ..................................................................................................... 188
Findings on superior responsibility .......................................................................................... 189

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2.7.11
2.7.11.1
2.7.11.2

2.7.122.7.12.1
2.7.12.2
2.7.12.3
2.7.12.4

3

Defences raised that may exclude criminal responsibility............................................. 190
Superior Orders........................................................................................................................ 190
Duress ...................................................................................................................................... 191

Cumulative convictions.................................................................................................. 193
Crimes against humanity and grave breaches .......................................................................... 194
Persecution and other underlying offences as crimes against humanity................................... 194
Murder and Extermination ....................................................................................................... 196
Conclusions on the criminal responsibility of the Accused...................................................... 196

SENTENCING ................................................................................... 198
3.1
SUBMISSIONS ........................................................................................................................... 198
3.2
APPLICABLE LAW ..................................................................................................................... 198
3.2.1
ECCC provisions and sentencing framework ..................................................................... 198
3.2.2
Relevant sentencing principles and factors ........................................................................ 201
3.2.3
The effect of multiple convictions upon sentence................................................................ 203
3.2.4
Applicable sentence where the maximum sentence of life imprisonment is not imposed.... 204
3.3
FINDINGS.................................................................................................................................. 205
3.3.1
Gravity of the crimes .......................................................................................................... 205
3.3.2
Aggravating factors ............................................................................................................ 207
3.3.3
Mitigating factors ............................................................................................................... 208
3.3.4
Psychiatric and psychological assessment of the Accused ................................................. 210
3.3.5
Character witnesses............................................................................................................ 212
3.3.6
Impact of prior violations of the Accused’s rights upon sentence ...................................... 214
3.3.7
Sentence.............................................................................................................................. 215
3.3.7.1
3.3.7.2

4

Imprisonment ........................................................................................................................... 215
Confiscation of personal property, money and real property ................................................... 216

CIVIL PARTY REPARATIONS ..................................................... 217
4.1
PROCEDURAL HISTORY............................................................................................................. 217
4.2
ASSESSMENT OF THE CIVIL PARTY APPLICATIONS ................................................................... 219
4.2.1
Existence of injury .............................................................................................................. 219
4.2.2
Existence of a causal link between the victim’s injury and the Accused’s offending.......... 220
4.3
RESPONSIBILITY OF KAING GUEK EAV VIS-À-VIS THE CIVIL PARTIES.................................... 221
4.3.1
Civil Parties claiming to be survivors of S-21 or S-24 ....................................................... 222
4.3.2
Other Civil Parties.............................................................................................................. 225
4.4
CLAIMS FOR REPARATIONS ....................................................................................................... 233
4.4.1
Civil Party requests ............................................................................................................ 233
4.4.2
Legal framework................................................................................................................. 237
4.4.3
Analysis of the various categories of reparations requested .............................................. 240
4.4.3.1
4.4.3.2
4.4.3.3
4.4.3.4
4.4.3.5
4.4.3.6
4.4.3.7
4.4.3.8

Requests pertaining to the content of the judgment ................................................................. 240
Compilation and publication of statements of apology ............................................................ 240
Requests concerning publication of the judgment and outreach .............................................. 241
Requests for individual monetary awards to Civil Parties or establishment of a fund ............. 241
Requests for measures by the Royal Government of Cambodia .............................................. 242
Requests for the construction of pagodas and other memorials ............................................... 242
Requests to preserve the S-21 archives, Vann Nath’s paintings and the S-21 and S-24 sites... 242
Requests for the provision of access to free medical care and educational measures............... 243

5

DISPOSITION ................................................................................... 244

6

ANNEX I: PROCEDURAL HISTORY........................................... 247
6.1
ARREST, TRANSFER AND DETENTION OF THE ACCUSED........................................................... 247
6.2
INVESTIGATION PHASE ............................................................................................................. 248
6.2.1
Preliminary investigation ................................................................................................... 248
6.2.2
Initial appearance and charges .......................................................................................... 248
6.2.3
Separation Order................................................................................................................ 249

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6.2.4
Conclusion of investigation and Closing Order ................................................................. 249
6.3
APPEAL OF THE CLOSING ORDER ............................................................................................. 249
6.3.1
Co-Prosecutors’ Appeal ..................................................................................................... 249
6.3.2
Pre-Trial Chamber Decision .............................................................................................. 250
6.4
CIVIL PARTIES .......................................................................................................................... 250
6.4.1
Joining of Civil Parties....................................................................................................... 250
6.4.2
Hearing of Civil Parties...................................................................................................... 251
6.5
TRIAL PROCEEDINGS ................................................................................................................ 251
6.5.1
Trial preparation and initial hearing ................................................................................. 251
6.5.2
Preliminary Objection ........................................................................................................ 252
6.5.3
Substantive hearing ............................................................................................................ 252
6.5.4
Other relevant issues .......................................................................................................... 254
6.5.4.1
6.5.4.2

6.5.5
6.5.6

Co-Prosecutors’ Motion Regarding Joint Criminal Enterprise................................................. 254
Civil Party Motion Regarding Submissions on Sentencing and on Character of the Accused . 254

Closing statements .............................................................................................................. 255
Subsequent proceedings...................................................................................................... 256

7

ANNEX II: AERIAL VIEW OF THE S-21 COMPLEX............... 257

8

ANNEX III: LIST OF CIVIL PARTIES......................................... 258

9ANNEX IV: GLOSSSARY AND LIST OF ABBREVIATIONS .. 271

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1
1.

INTRODUCTION

The Trial Chamber of the Extraordinary Chambers in the Courts of Cambodia(“Chamber” and “ECCC”, respectively) seised of Case File 001/18-07-2007/ECCC/TC,1
renders its Judgement against Kaing Guek Eav alias Duch (“Accused”), a former
mathematics teacher born on 17 November 1942 in the village of Poev Veuy, Peam Bang
Sub-District, Stoeung District, in the province of Kompong Thom.
1.1
2.

Establishment of the ECCC
Following an official request for assistance by Cambodia of 21 June 1997,2 theUnited Nations and the Royal Government of Cambodia signed an Agreement on 6 June
2003 which envisaged the trial of senior leaders of Democratic Kampuchea (“DK”) andthose most responsible for the national and international crimes committed in DK
between 17 April 1975 and 6 January 1979 (“ECCC Agreement”).33.

The ECCC was established under Cambodian law following the promulgation of the“Law on the Establishment of Extraordinary Chambers in the Courts of Cambodia for theProsecution of Crimes Committed During the Period of Democratic Kampuchea”(“ECCC Law”).4

1

Decision on Appeal Against Closing Order Indicting Kaing Guek Eav alias ‘Duch’, D99/3/42,
5 December 2008 (“Decision on Appeal against the Closing Order”).
2
UN Doc. A/51/930-S/1997/488 (24 June 1997); UN Doc. A/RES/52/135 (27 February 1998), para. 16.
3“Agreement Between the United Nations and the Royal Government of Cambodia Concerning theProsecution under Cambodia Law of Crimes Committed During the Period of Democratic Kampuchea”,
signed 6 June 2003 and entered into force on 29 April 2005; see also UN Doc. A/RES/57/228B (13 May
2003) (approving draft ECCC Agreement); UN Doc. A/60/565 (25 November 2005), para. 4.
4“Law on the Establishment of Extraordinary Chambers in the Courts of Cambodia for the Prosecutionof Crimes Committed During the Period of Democratic Kampuchea”, 10 August 2001 with inclusion ofamendments as promulgated on 27 October 2004 (NS/RKM/1004/006).

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1.2
4.

Brief Procedural Overview of the CaseOn 18 July 2007, the ECCC Co-Prosecutors filed an Introductory Submission with

the Co-Investigating Judges pursuant to Internal Rule 53, opening a judicial investigation
against five individuals, including the Accused.5
5.

On 19 September 2007, the Co-Investigating Judges ordered the separation of theCase File of the Accused in relation to facts concerning S-21, which were investigatedunder Case File number 001/18-07-2007 and which comprise the present case.6
6.

On 8 August 2008, the Co-Investigating Judges issued a Closing Order indicting the

Accused for crimes against humanity and grave breaches of the Geneva Conventions of1949 (“Closing Order”).77.

The Co-Prosecutors appealed the Closing Order on 5 September 2008.8 The Pre-

Trial Chamber issued an oral decision on this appeal on 5 December 2008.9 The Pre-Trial
Chamber partially granted the Co-Prosecutors’ first ground of appeal, finding that thedomestic crimes of torture and premeditated murder as defined by the 1956 Penal Codeof Cambodia (“1956 Penal Code”) should be added to the Closing Order. The Pre-Trial
Chamber dismissed the Co-Prosecutors’ second ground of appeal, which had alleged that
the Co-Investigating Judges erred in failing to include joint criminal enterprise as a formof responsibility in the Closing Order.
8.

The Pre-Trial Chamber remitted the Accused for trial on the basis of the Closing

Order as amended by its Decision on Appeal against the Closing Order (“Amended

5“Co-Prosecutors Introductory Submission”, D3, 18 July 2007.
“Separation Order”, D18, 19 September 2007. All other facts related to the Accused or the otherindividuals mentioned in the Introductory Submission were investigated under Case File number 002/1909-2007.
7“Closing Order indicting Kaing Guek Eav alias Duch”, D99, 8 August 2008.
8“Co-Prosecutors’ Appeal of the Closing Order against Kaing Guek Eav ‘Duch’ dated 8 August 2008”,
D99/3/3, 5 September 2008.
9
Decision on Appeal against the Closing Order.
6

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Closing Order”).10 The Amended Closing Order established the factual allegations for the
Chamber to determine at trial.
9.

The initial hearing before the Chamber took place on 17 and 18 February 2009.11

The substantive hearing commenced on 30 March 2009 and the hearing of the evidence
concluded on 17 September 2009 after 72 trial days. 90 victims were joined as Civil
Parties and were represented by lawyers, forming four Civil Party groups (“Civil
Parties”).12
10. Closing statements were made by the Co-Prosecutors, the Civil Parties, theAccused’s Co-Lawyers, and the Accused from 23 to 27 November 2009.13
1.3

The Charges against the Accused

11. The Amended Closing Order alleges that the Accused, as Deputy Secretary or
Secretary of S-21, planned, instigated, ordered, committed, or aided and abetted crimes
against humanity,14 grave breaches of the Geneva Conventions of 1949,15 as well as thenational crimes of premeditated murder and torture. In the alternative, he is responsibleby virtue of superior responsibility. The offences for which he is charged are defined in
Articles 5, 6 and 3 (new) of the ECCC Law, respectively. All charges pertain to acts and

10

Decision on Appeal against the Closing Order, p. 41 (point 5).
“Order Setting the Date of the Initial Hearing”, E8, 19 January 2009.
12
The Office of the Co-Investigating Judges received 28 Civil Party applications during the investigation
phase. A further 66 Civil Party applications were received by the Chamber prior to the initial hearing, fourof which were either withdrawn or rejected; see Direction on the Civil Party Status of Applicants E2/36,
E2/51 and E2/69, E2/94/2, 4 March 2009; Decision on Request to Reconsider Decision on Proof of Identity
for Civil Party Application (E2/36), E2/94/4, 10 August 2009 (in relation to Civil Party application E2/36);“CPG3: Lettre d'abandon de droit de la constitution de la partie civile au près des chambres extraordinaires
au sein des tribunaux cambodgiens”, E2/65/5, 15 September 2009. Annex III to the Judgement indicates thefull name, place of residence, birth date, birthplace and occupation of the Civil Parties as per Internal Rule101(6)(f).
13“Scheduling Order for Closing Statements”, E170, 30 September 2009.
14
The Amended Closing Order charges the Accused with the following offences as crimes against
humanity: murder, extermination, enslavement, imprisonment, torture, rape, persecution on politicalgrounds and other inhumane acts; see also Section 2.5.
15
The Amended Closing Order charges the Accused with the following offences as grave breaches of the
Geneva Conventions of 1949: wilful killing, torture or inhumane treatment, wilfully causing great sufferingor serious injury to body or health, wilfully depriving a prisoner of war or civilian of the rights of fair andregular trial, and unlawful confinement of a civilian; see also Section 2.6.
11

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omissions committed in Phnom Penh and within the territory of Cambodia between 17
April 1975 and 6 January 1979.
12. Pursuant to Internal Rule 98(2), the Judgement is limited to the facts set out in the
Amended Closing Order. However, the Chamber may change the legal characterisationof the crimes contained in the Amended Closing Order provided that no new constitutive
elements are introduced.16
1.4

Jurisdiction of the Chamber over the Accused

13. Article 1 of the ECCC Law empowers the ECCC to “bring to trial senior leaders of[DK] and those who were most responsible for the crimes and serious violations of
Cambodian penal law, international humanitarian law and custom, and international
conventions recognized by Cambodia, that were committed during the period from 17
April 1975 to 6 January 1979.”17
14. No preliminary objection to the jurisdiction of the ECCC as such was raised at theinitial hearing pursuant to Internal Rule 89.18 In its closing statement, the Defence madeextensive submissions alleging the lack of jurisdiction of the Chamber on the ground that
the Accused was not a senior leader or one of those most responsible for the crimes
committed during the DK regime.19

16

The French version of Internal Rule 98(2) is clearer in this regard: « La Chambre ne peut statuer que
sur les faits mentionnés dans la décision de renvoi. Toutefois, la Chambre peut modifier les qualifications
juridiques adoptées dans la décision de renvoi, sous réserve de n’introduire aucun élément constitutif
nouveau. […]. »17
See also Article 2(1) of the ECCC Agreement, which defines the personal and subject-matter
jurisdiction of the ECCC in accordance with the ECCC Law.
18
Rule 89(1) then provided that “[a] preliminary objection concerning: a) the jurisdiction of the
Chamber, […] shall be raised at the initial hearing, failing which it shall be inadmissible”; see T., 1 April
2009 (Defence), pp. 18-19 (“I am not intending to challenge [jurisdiction] because I am quite aware alreadyand I could have raised it in the initial hearing already if I wished to do so”); see also T., 6 April 2009, p. 1(“the Chamber wishes to reiterate its understanding that during his response to the opening statement by the
Co-Prosecutors, the Defence lawyer did not make any formal submission on the legality of the proceedingsof this Court”. The Defence did not object to this understanding.”)
19
T., 25 November 2009 (Defence Closing Statement), pp. 84-109; T., 26 November 2009 (Defence
Closing Statement), pp. 39-41 (alleging that senior leaders of DK comprised only the members of theStanding Committee, that the Accused merely executed orders, and that more people were killed in otherprisons than in S-21. Equality before the law would require that if the Accused is to be tried, all otherprison chiefs should also be tried by the ECCC.); see also T., 31 March 2009 (Response of the Defence to

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15. The Chamber does not consider these belated submissions to constitute apreliminary objection. In addition, the Defence argued that Annex 5 of the 1991 Paris
Peace Agreement and the 1994 Law on the Outlawing of the “Democratic Kampuchea”
Group exempted the Accused from future prosecution.20 The Chamber notes that thesearguments were also belated and consequently rejects them.
1.4.1 Subject-Matter,Temporal and Territorial Jurisdiction
16. The Chamber has evaluated, on its own motion,21 the question of whether there was
any lack of jurisdiction over the Accused in the instant case. The subject-matter
jurisdiction of the ECCC is limited to the offences listed in Articles 3 (new) to 8 of the
ECCC Law insofar as they constituted crimes at the time of their alleged commission(Section 1.5). The crimes charged in the Amended Closing Order are within the scope ofthe subject-matter, temporal and territorial jurisdiction of the ECCC.
1.4.2 Personal Jurisdiction
17. Personal jurisdiction is confined either to “senior leaders of DK” or “those who
were most responsible for the crimes and serious violations of Cambodian penal law,international humanitarian law and custom, and international conventions recognized by
Cambodia.”22

the Co-Prosecutors’ Opening Statement), pp. 76-77, 82-83. The Co-Prosecutors contend that the Accusedsatisfies both criteria of senior leadership and being most responsible in view of his position and role at
S-21, the uniqueness and importance of S-21 for the CPK, as well as the seriousness of his crimes (“CoProsecutors’ Final Trial Submission With Annexes 1-5”, E159/9, 11 November 2009, paras 239-245; T., 24
November 2009 (Co-Prosecutors’ Closing Statement), pp. 8-12; T., 27 November 2009 (Co-Prosecutors’
Rebuttal Statement), pp. 14-17; see also “Introductory Submission”, D3, 18 July 2007, para. 115.) The
Civil Parties who expressed themselves on this issue supported the position of the Co-Prosecutors (T., 26
November 2009 (Rebuttal Statements of Civil Party Groups 2 and 4), pp. 95-99, 108).
20
See T., 25 November 2009 (Defence Closing Statement), pp. 115-116 (referring to the “Agreement on
a comprehensive political settlement of the Cambodia conflict (with annexes),” concluded at Paris on 23
October 1991, 1663 UNTS No. 28613 (“1991 Paris Peace Agreement”)) and the 1994 Law on the
Outlawing of the “Democratic Kampuchea” Group (15 July 1994 (Reachkram no. 01.NS.94); see also
Written Record of Interview of Charged Person, E3/11 (ERN 00159553-00159557).
21
See Internal Rule 98(3).
22ECCC Agreement, Article 1.

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18. The Co-Investigating Judges did not allege that the Accused was a senior leader of
DK but instead charged him as being one of those most responsible for the offences
committed during the temporal jurisdiction of the Chamber:
129. The judicial investigation demonstrated that, while DUCH was nota senior leader of Democratic Kampuchea, he may be considered in the
category of most responsible for crimes and serious violations committed
between 17 April 1975 and 6 January 1979, due both to his formal andeffective hierarchical authority and his personal participation as Deputy
Secretary then Secretary of S21, a security centre which was directly
controlled by the Central Committee.23

19.

Neither the ECCC Agreement nor the ECCC Law expressly defines “senior leadersof DK” or “those who were most responsible”. The Group of Experts for Cambodia
established in 1998 pursuant to General Assembly resolution 52/135, tasked withassessing the feasibility of bringing Khmer Rouge leaders to justice, concluded in its
report that:
the Group does not believe that the term "leaders" should be equatedwith all persons at the senior levels of Government of DK or even of the
CPK. The list of top governmental and party officials may notcorrespond with the list of persons most responsible for serious
violations of human rights in that certain top governmental leaders may
have been removed from knowledge and decision-making; and others notin the chart of senior leaders may have played a significant role in theatrocities. This seems especially true with respect to certain leaders at thezonal level, as well as officials of torture and interrogation centres such
as Tuol Sleng.24

20. The Group of Experts accordingly recommended that “any tribunal focus upon
those persons most responsible for the most serious violations of human rights during thereign of DK. This would include senior leaders with responsibility over the abuses aswell as those at lower levels who are directly implicated in the most serious atrocities.”25

23

Amended Closing Order, para. 129.
UN Doc. A/53/850-S/1999/231, Annex (“Report of the Group of Experts for Cambodia establishedpursuant to General Assembly Resolution 52/135” dated 18 February 1999), para. 109.
25
UN Doc. A/53/850-S/1999/231, Annex (“Report of the Group of Experts for Cambodia establishedpursuant to General Assembly Resolution 52/135” dated 18 February 1999), para. 110 (emphasis added).
24

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21. Similar terminology was used by the Secretary General when transmitting theGroup of Experts’ report to the Security Council and the General Assembly,26 and by theCommission of Human Rights, which examined the situation in Cambodia in 1999.27
22. The jurisprudence of other international tribunals which have also examined thenotion of “most senior leaders suspected of being most responsible”, have consideredboth the gravity of the crimes charged and the level of responsibility of the accused.28
When assessing the gravity of the crimes charged, the Referral Bench of the International
Criminal Tribunal for Yugoslavia (“ICTY”) has relied on factors such as the number ofvictims, the geographic and temporal scope and manner in which they were allegedly
committed, as well as the number of separate incidents, whereas the level of
responsibility of the accused has been evaluated on the basis of considerations such as thelevel of participation in the crimes, the hierarchical rank or position of the accused,
including the number of subordinates and hierarchical echelons above him or her, and thepermanence of his position.29 The Pre-Trial Chamber of the International Criminal Court(“ICC”), in determining the admissibility of a case, has evaluated similar factors.30

26

UN Doc. A/53/850-S/1999/231.
Commission on Human Rights resolution 1999/76, 28 April 1999, para. 14.
28
UN Doc. S2002/678, Enclosure (“Report on the Judicial Status of the International Criminal Tribunal
for the Former Yugoslavia and the Prospects for Referring Certain Cases to National Courts (June 2002)),
para. 42; UN Doc. S/RES/1503 (2003); UN Doc. S/RES/1534 (2004), para. 5. This expression was firstused in UN Doc. S/RES/1503 (2003), preamble (7th paragraph), by the Security Council; see also ICTY
Rules of Procedure and Evidence (“RPE”), Rules 11bis (C) and 28(A) (cf. Article 1 of the ECCC Law,
which instead refers to two distinct categories of suspects, “senior leaders” and “most responsible”);
Prosecutor v. Lukić et al., Decision on Referral of Case Pursuant to Rule 11bis with Confidential Annex A
and Annex B, ICTY Referral Bench (IT-98-32/1-PT), 5 April 2007, para. 26.
29
Prosecutor v. Lukić et al., Decision on Referral of Case Pursuant to Rule 11bis with Confidential
Annex A and Annex B, ICTY Referral Bench (IT-98-32/1-PT), 5 April 2007, paras 27, 28; Prosecutor v.
Kovačević, Decision on Referral of Case Pursuant to Rule 11bis, ICTY Referral Bench (IT-01-42/2-1), 17
November 2006, para. 20; Prosecutor v. D. Milošević, Decision on Referral of Case Pursuant to Rule 11bis,
ICTY Referral Bench (IT-98-29/1-PT), 8 July 2005, paras 23-24; Prosecutor v. Janković, Decision on
Referral of Case Pursuant to Rule 11bis, ICTY Referral Bench (IT-96-23/2-PT), 22 July 2005, para. 19;
Prosecutor v. Ademi et al., Decision on Referral to the Authorities of the Republic of Croatia Pursuant toRule 11bis, ICTY Referral Bench (IT-04-78-PT), 14 September 2005, paras 28-29; Prosecutor v. Ljubičić,
Decision to Refer the Case to Bosnia and Herzegovina Pursuant to Rule 11bis; ICTY Referral Bench (IT00-41-PT), 12 April 2006, paras 18-19; see also Prosecutor v. Lukić et al., Decision on Milan Lukić’s
Appeal Regarding Referral, ICTY Appeals Chamber (IT-98-32/1-AR11bis.1), 11 July 2007, para. 22(limiting the importance of geographic scope).
30
Situation in the DRC, Prosecutor v. Ntaganda, Decision on the Prosecutor’s Application for Warrantsof Arrest, Article 58, ICC Pre-Trial Chamber I (ICC-01/04-02/06-20-Anx2), 10 February 2006 (unsealedon 21 July 2008 pursuant to Decision ICC-01/04-520), paras 51-64, 68-71, 74, 78-89 (quashed on appeal,
27

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23.

The Amended Closing Order alleged, amongst other things, that as Deputy of S-21,

the Accused led the Interrogation Unit and participated in the planning of S-21 operations
and training of staff on interrogation techniques. As Chairman of S-21, his role consistedof oversight of the entire S-21 operation including the annotation of confessions and theordering of executions. S-21 was a very important security centre of DK, considered as
an organ of the Communist Party of Kampuchea (“CPK”), reporting to the very highest
levels of the CPK leadership, carrying out nation-wide operations and receiving highlevel cadres and prominent detainees. More than 12,000 individuals31 were detained at S21, a number which is incomplete and must be read in light of the practice of notregistering all detainees. Victims from every part of Cambodia were sent to S-21, withthe result that the scope of its activities reached across the entire country. S-21 wasoperational from October 1975 to early January 1979, thus covering a significant portionof the DK regime’s existence.32
24. Due to the scale of crimes committed during the DK period, the ECCC Agreementand ECCC Law impose no obligation to try all potential perpetrators of crimes fallingwithin its jurisdiction.33 Although hierarchical position is a relevant criterion,international tribunals have generally not undertaken rigid comparisons of the seniority of
persons previously tried before them when making referral decisions.34 The fact that
other individuals within DK during the indictment period may have shared these
attributes does therefore not preclude the Accused from also being considered as one ofthose most responsible.
on different grounds, in Situation in the DRC, Judgment on the Prosecutor’s appeal against the decision of
Pre-Trial Chamber I entitled “Decision on the Prosecutor’s Application for Warrants of Arrest, Article 58”,
ICC Appeals Chamber (ICC-01/04-169), 13 July 2006 (unsealed on 23 September 2008 pursuant to
Decision ICC-01/04-538), paras 73-79).
31
The Amended Closing Order alleges that no fewer than 12,380 persons were detained at S-21. During
the examination of the merits of the case, the Chamber concluded that the S-21 detainees numbered at aminimum 12,273; see Section 2.3.3.4.2.
32
Amended Closing Order paras 20-21, 32-33, 37-38, 42-43, 47, 97-98, 107-109.
33
See Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing
Campaign Against the Federal Republic of Yugoslavia, 13 June 2000, para. 5 (acknowledging that indeciding which individuals merit prosecution in the international forum, the Prosecutor may require ahigher threshold to be met than mere existence of credible evidence to suggest the commission of crimes
within the jurisdiction of the tribunal).
34
See e.g., Prosecutor v. Ademi et al., Decision on Referral to the Authorities of the Republic of Croatia
Pursuant to Rule 11bis, ICTY Referral Bench (IT-04-78-PT), 14 September 2005, paras 30-31 (finding that
the Accused's seniority did not ipso facto preclude referral to a national jurisdiction for trial).

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25. The Chamber agrees with the assessment of the Co-Investigating Judges andaccordingly finds that the Accused falls within the personal jurisdiction of the ECCC as
one of those most responsible for crimes committed during the period from 17 April 1975
to 6 January 1979. There is consequently no need to examine the issue of whether the
Accused was a senior leader of the DK.
1.5

The Principle of Legality

26. Notwithstanding the Chamber’s subject-matter jurisdiction over them, each of thecharged crimes and forms of responsibility must also conform to the principle oflegality.35
27. Article 15(1) of the International Covenant on Civil and Political Rights (“ICCPR”)
states that “[n]o one shall be held guilty of any criminal offence on account of any act oromission which did not constitute a criminal offence, under national or international law,at the time when it was committed.”36 This principle is qualified in Article 15(2) of the
ICCPR, which adds: “Nothing in this article shall prejudice the trial and punishment ofany person for any act or omission which, at the time when it was committed, wascriminal according to the general principles of law recognized by the community ofnations.”37
28. The international jurisprudence has clarified that compliance with the principle oflegality requires that the offence with which an accused is charged was sufficiently
foreseeable and that the law providing for such liability was sufficiently accessible to the35

Article 33 (new) of the ECCC Law indicates that the Chamber must exercise its jurisdiction in
conformity with Articles 14 and 15 of the 1966 International Covenant on Civil and Political Rights, 999
UNTS 171 (“ICCPR”); see also 1993 Constitution of The Kingdom of Cambodia, Article 31(1) (theKingdom of Cambodia “shall recognize and respect human rights as stipulated in the United Nations
Charter, the Universal Declaration of Human rights, the covenants and conventions related to human rights,
women’s and children’s rights.”)
36
Article 15(1) of the ICCPR further states, “[n]or shall a heavier penalty be imposed than the one that
was applicable at the time when the criminal offence was committed. If, subsequent to the commission of
the offence, provision is made by law for the imposition of the lighter penalty, the offender shall benefit
thereby.”37
The principle of legality is recognised by numerous other international instruments, including Article
11(2) of the Universal Declaration of Human Rights (UNGA Res 217A, 10 December 1948) and Article 7of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ETS 5/213
UNTS 222, 4 November 1950) (“ECHR”).

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accused at the relevant time.38 A State practice of tolerating or encouraging certain acts
will not operate as a bar to their perpetrators being brought to justice and punished where
those acts are crimes under national or international law.39 The principle of legality
applies both to the offences as well as to the forms of responsibility.40 Accordingly, theChamber must determine whether the offences and modes of participation charged in the
Amended Closing Order were recognised under Cambodian or international law between
17 April 1975 and 6 January 1979.
29. The 1956 Penal Code was the applicable national law governing during the 1975 to1979 period, as it remained in force following the promulgation of both the Constitutionof the Khmer Republic on 10 May 1972 and the DK Constitution on 5 January 1976.
30. As regards relevant sources of international law applicable at the time, the Chamber
may rely on both customary and conventional international law,41 including the generalprinciples of law recognised by the community of nations.42
31. An assessment of the foreseeability and accessibility requirements integral to theprinciple of legality should take into account the particular nature of international law,
including its reliance on unwritten custom.43 The ICTY Appeals Chamber has noted that,

38

Prosecutor v. Milutinović et al., Decision on Dragoljub Ojdanić’s Motion Challenging Jurisdiction –Joint Criminal Enterprise, ICTY Appeals Chamber (IT-99-37-AR72), 21 May 2003, para. 38; see also S.W.
v. United Kingdom, Judgment, ECtHR (no. 20166/92), 22 November 1995, paras 35-36 (indicating that theterm “law” in Article 7 of the ECHR “comprises written as well as unwritten law and implies qualitativerequirements, notably those of accessibility and foreseeability.” )39
Kononov v. Latvia, Judgment, ECtHR (no. 36376/04), 24 July 2008, para. 114(e).
40
See e.g., Prosecutor v. Milutinović et al., Decision on Dragoljub Ojdanić’s Motion Challenging
Jurisdiction – Joint Criminal Enterprise, ICTY Appeals Chamber (IT-99-37-AR72), 21 May 2003, paras34-44 (as applied to joint criminal enterprise); Prosecutor v. Aleksovski, Judgement, ICTY Appeals
Chamber (IT-95-14/1-A), 24 March 2000 (“Aleksovski Appeal Judgement”), para. 126 (as applied to grave
breaches of the Geneva Conventions of 1949).
41
See e.g., Aleksovski Appeal Judgement, para. 126 (relying on customary and conventional law
sources); Prosecutor v. Kordić et al., Judgement, ICTY Appeals Chamber (IT-95-14/2-A), 17 December
2004 (“Kordić Appeal Judgement”), paras 41-42.
42
See Article 15(2) of the ICCPR; see also Article 38(1) of the Statute of the International Court ofJustice.
43
Prosecutor v. Milutinović et al., Decision on Dragoljub Ojdanić’s Motion Challenging Jurisdiction –Joint Criminal Enterprise, ICTY Appeals Chamber (IT-99-37-AR72), 21 May 2003, paras 38-42; see also
Groppera Radio AG and Others v. Switzerland, Judgement, ECtHR (No. 10890/84), 28 March 1990, para.
68 (stating that the scope of the notion of foreseeability depends to a considerable degree on the content of

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the accused; he must be able to appreciate that the conduct is criminal in
the sense generally understood, without reference to any specificprovision. As to accessibility, in the case of an international tribunal suchas this, accessibility does not exclude reliance being placed on a law
which is based on custom.44

32. Further, “[a]lthough the immorality or appalling character of an act is not a
sufficient factor to warrant its criminalisation under customary international law, it may
in fact play a role in that respect, insofar as it may refute any claim by the Defence that it
did not know of the criminal nature of the acts.”45
33. The Chamber may also rely on conventional international law where a treaty is (i)unquestionably binding on the parties at the time of the alleged offence and (ii) not in
conflict with or derogating from peremptory norms of international law.46 As stated by
the ICTY Appeals Chamber, the principle of legality “is also satisfied where a State isalready treaty-bound by a specific convention, and the International Tribunal applies a
provision of that convention irrespective of whether it is part of customary internationallaw.”47 International tribunals have in practice nevertheless ascertained whether a treaty
provision is also declaratory of custom.48
34. The legality principle does not prevent the Chamber from determining an issue
through a process of interpretation and clarification of the elements of a particularoffence. Nor does it prevent the Chamber from relying on appropriate decisions whichinterpret particular ingredients of an offence.49 Specifically, the Chamber’s reliance on

the text in issue, the field it is designed to cover and the number and status of those to whom it isaddressed); Kononov v. Latvia, Judgment, ECtHR Grand Chamber (no. 36376/04), 17 May 2010, para. 235.
44
Prosecutor v. Hadžihasanović et al., Decision on Interlocutory Appeal Challenging Jurisdiction in
Relation to Command Responsibility, ICTY Appeals Chamber (IT-01-47-AR72), 16 July 2003, para. 34.
45
Prosecutor v. Milutinović et al., Decision on Dragoljub Ojdanić’s Motion Challenging Jurisdiction –Joint Criminal Enterprise, ICTY Appeals Chamber (IT-99-37-AR72), 21 May 2003, para. 42.
46
Prosecutor v. Tadić, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, ICTY
Appeals Chamber (IT-94-1-AR72), 2 October 1995, para. 143 (as regards Article 3 of the ICTY Statute).
47
Kordić Appeal Judgement, para. 44.
48
Prosecutor v. Galić, Judgement, ICTY Appeals Chamber (IT-98-29-A), 30 November 2006, para. 85.
49
Aleksovski Appeal Judgement, para. 126; see also S.W. v. United Kingdom, Judgement, ECtHR (no.
20166/92), 22 November 1995, paras 35-36.

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decisions of international tribunals that post-date January 1979 does not contravene theprinciple of legality. Rather, these decisions provide interpretative guidance as regards
the evolving status of certain offences and forms of responsibility under internationallaw. In addition, the fact that the ECCC was established and conferred with jurisdiction
over offences after they were allegedly committed does not violate the principle oflegality.50
1.6

The Internal Rules and Applicable Evidentiary Principles
1.6.1 Governing Procedural Law

35. Pursuant to the ECCC Agreement and the ECCC Law, the Chambers of the ECCC
operate in accordance with Cambodian procedural law.51 Following its establishment, the
ECCC adopted its Internal Rules.52 The purpose of the Internal Rules is to consolidate
applicable Cambodian procedure in relation to proceedings before the ECCC. The ECCC
Agreement and the ECCC Law envisage that additional rules may be adopted where
existing procedures do not deal with a particular matter, in case of uncertainty regarding
their interpretation or application, or where questions arise regarding their consistency
with international standards.53 Thus, while Cambodian law governs the procedure before
the Chamber, guidance is also sought from procedural rules established at theinternational level, where appropriate.
50

Prosecutor v. Kallon et al., Decision on Constitutionality and Lack of Jurisdiction, Special Court for
Sierra Leone (“SCSL”) Appeals Chamber (SCSL-04-14-AR72 & SCSL-04-15-AR72 & SCSL-04-16AR72), 13 March 2004, para. 82 (“[t]he fact that no court exists with jurisdiction to adjudicate crimes
proscribed by international law at the time the offences were committed is not a bar to prosecution and nota violation of the principle nullum crimen sine lege.”); see also Prosecutor v. Delalić et al., Judgement,
ICTY Appeals Chamber (IT-96-21-A), 20 February 2001 (“Čelebići Appeal Judgement”), paras 179-180;
cf. Streletz, Kessler and Krenz v. Germany, Judgment, ECtHR (no. 34044/96 & 35532/97 & 44801/98), 22
March 2001, paras 79-81.
51
ECCC Agreement, Article 12; ECCC Law, Article 33 (new); see also ECCC Law, Article 20 (new) (asconcerns the Co-Prosecutors) and Article 23 (new) (as concerns the Co-Investigating Judges).
52
The first version of the ECCC Internal Rules were adopted on 12 June 2007, with an initial revision
adopted on 1 February 2008 (which came into force on 10 February 2008), a second revision on 5
September 2008 (in force on 15 September 2008), a third revision on 6 March 2009 (in force on 16 March2009), a fourth revision on 11 September 2009 (in force on 21 September 2009) and a fifth revision on 9
February 2010 (in force on 19 February 2010). All references in this Judgement to an “Internal Rule” are,unless otherwise noted, to a Rule in the ECCC Internal Rules currently in force.
53
Fifth preambular paragraph of the Internal Rules, citing ECCC Agreement, Article 12(1) and ECCC
Law, Articles 20 (new), 23 (new) and 33 (new).

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1.6.2 The Case File
36. The Case File is the result of the material collated during the judicial investigation
phase in the present case. Material was added to it successively, at each stage of the
ECCC proceedings.
37. The Chamber was formally seised of the Case File following the Pre-Trial
Chamber’s Decision on Appeal against the Closing Order.54 The Chamber was granted
access to the Case File for the purpose of advance preparation for trial by decision of the
Pre-Trial Chamber of 11 September 2008: a practice which has since found expression in
the Internal Rules.55
38. Material on the Case File is considered evidence and relied upon by the Chamber indecision-making only where it is put before the Chamber, subjected to examination, andwhere it is not excluded on the basis of the criteria contained in Internal Rule 87(3).
1.6.3 Admissibility of Evidence
39. Internal Rule 87(1) states that “[u]nless provided otherwise in these [Internal Rules],all evidence is admissible.”56 The scope of this general principle is qualified by Internal
Rule 87(2), which provides that “[a]ny decision of the Chamber shall be based only on
evidence that has been put before the Chamber and subjected to examination.”
40. Although the wording of Internal Rule 87(3) refers to “evidence from the case file”,
it is apparent from the entirety of that sub-rule that material on the Case File is not“evidence” as such until it is put before (i.e., summarised, read out, or appropriately

54

Decision on Appeal against the Closing Order.
Decision on Trial Chamber Request to Access the Case File, D99/3/5, 11 September 2008. Internal
Rule 69(3), which came into force on 21 September 2009, provides that “[t]he filing of an appeal against a
Closing Order does not prevent access by the Trial Chamber to the case file for the purposes of advance
preparation for trial.”
56
Internal Rule 21(3) specifically provides that statements recorded under the use of inducement,
physical coercion or threats thereof shall not be admissible as evidence before the Chamber.
55

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identified) in court.57 The Chamber may also admit new material not originally on theCase File, either on its own motion or at the request of a party.58
41. Further, to be used as evidence, material on the Case File must satisfy certain
conditions of relevance and probative value. The Chamber may reject any material put
before it based on the criteria listed in Internal Rule 87(3) (namely irrelevance, inability
to prove the facts alleged, impossibility of obtaining evidence within a reasonable time,or due to the existence of breaches of fundamental legal standards concerning the rules ofevidence).
42. The probative value of this evidence, and thus the weight to be accorded to it, isultimately assessed by the Chamber.
43. In its practice, the Chamber ultimately had recourse to the fundamental fair trial
principles enshrined in Internal Rule 21 and Article 33 (new) of the ECCC Law, as wellas to the jurisprudence of international criminal tribunals. In light of this jurisprudence,
the Chamber has considered hearsay and circumstantial evidence to be admissible where
sufficiently relevant and probative.59 With regard to hearsay statements, the Chambergave particular consideration to whether the Accused was able to confront the source ofsuch statements.60 In keeping with international jurisprudence, the Chamber has also
found that the testimony of a single witness can establish a fact at issue where such
evidence is sufficiently relevant and probative.61

57

See Decision on Admissibility of Material on the Case File as Evidence, E43/4, 26 May 2009, paras 5-7.
See Decision on Admissibility of New Materials and Direction to the Parties, E5/10/2, 10 March 2009(a party making such a request must do so by reasoned submission and establish that the requested
testimony or evidence had been unavailable before the opening of the trial); see also Internal Rule 87(4)(permitting the Chamber to summon or hear any witness, or admit new evidence during the trial, where
conducive to ascertaining the truth).
59
See e.g., Prosecutor v. Nahimana et al., Judgement, ICTR Appeals Chamber (ICTR-99-52-A), 28
November 2007, para. 509; Čelebići Appeal Judgement, para. 458.
60
Decision on Admissibility of Material on the Case File as Evidence, E43/4, 26 May 2009, paras 14-16(statements excluded where confrontation of their author by the Accused had not occurred and was nolonger possible).
61
See e.g., Aleksovski Appeal Judgement, 24 March 2000, para. 62; see also, Prosecutor v. Brima et al.,Judgement, SCSL Trial Chamber (SCSL-04-16-T), 20 June 2007 (“Brima Trial Judgement”), para. 109;
Akayesu Trial Judgement, para. 135.
58

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1.6.4 Burden and Standard of Proof
44. Internal Rule 21(d) enshrines the right of an accused to be presumed innocent aslong as his or her guilt has not been established.62 This presumption places the burden of
establishing the guilt of an accused before the ECCC on the Co-Prosecutors.63 Internal
Rule 87(1) further provides that “[i]n order to convict the accused, the Chamber must be
convinced of the guilt of the accused beyond reasonable doubt.”
45. The basis of this finding is expressed differently in common law and civil law
systems, and within the different language versions of Internal Rule 87(1). Cambodian
law derives from civil law and, in particular, from the notion of the judge’s intime
conviction.64 This notion is retained in the French version of Internal Rule 87(1), whereas
both the Khmer and English versions of this Internal Rule state that a finding of guilt
against the accused requires that the Chamber be convinced beyond a reasonable doubt.65
Despite these conceptual differences, the Chamber has adopted a common approach thathas evaluated, in all circumstances, the sufficiency of the evidence. Upon a reasoned
assessment of evidence, any doubt as to guilt was accordingly interpreted in the
Accused’s favour.
1.6.5 Sources of Evidence Put Before the Chamber
1.6.5.1

Agreed facts and admissions by the Accused

46. The Chamber directed the Co-Prosecutors and the Defence to submit filings
indicating their joint agreement, if any, with facts in the Amended Closing Order.66 These62

See also ECCC Agreement, Article 13; ECCC Law, Article 35 (new). The presumption of innocence isenshrined in a number of human rights instruments, including Article 14(2) of the ICCPR and Article 6(2)of the ECHR.
63
Internal Rule 87(1).
64
See also Article 321 of the 2007 Code of Criminal Procedure: “the Court has to consider the value ofthe evidence submitted for its examination, following the judge’s intime conviction.”
65
The French version of Internal Rule 87(1) reads: “[p]our condamner l’accusé, la Chambre doit avoir
l’intime conviction de sa culpabilité” (emphasis added). By contrast, the ICTY, the ICTR and ICC have all
equated the term “beyond reasonable doubt” to “au-delà de tout doute raisonnable.”66
Direction Requesting Additional Information from the Parties and Co-Investigating Judges in
Preparation of the Initial Hearing, E5/11, 5 February 2009, para. 5.

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submissions were filed on 11 February 2009 and 1 April 2009, respectively.67 During thehearing of 1 April 2009, the Chamber instructed the Co-Prosecutors and the Defence topublicly read out facts that were jointly agreed to or that were not disputed.68
47. Broadly speaking, the Accused agreed with or did not dispute a significant numberof facts contained in the Amended Closing Order.69
48. Unlike the legal framework of other international tribunals, the governing law of the
ECCC provides no procedure for the acceptance and recording of a plea of guilty by anaccused.70 Before these other tribunals, a guilty plea typically permits a Trial Chamber,
following a significantly shortened evidentiary phase, to proceed directly to aconsideration of factors relevant to sentence.71 Absent such a mechanism, the Chamber
was compelled to hear and evaluate all evidence put before it, including in relation tomatters not in dispute. The agreement on facts nevertheless significantly assisted the
Chamber in identifying the most contentious issues at trial and in streamlining theproceedings.
49. Pursuant to the Internal Rules, the agreement on facts neither binds the Chamber nor
relieves the Co-Prosecutors of their burden of proof. Where material from the agreement
on facts was put before the Chamber and subjected to examination, the Chamber

67“Response of the Co-Prosecutors Regarding Agreement on Facts”, E5/11/2; “Defence Position on the
Facts Contained in the Closing Order”, E5/11/6.1, which is attached as Annex 1 to the “Defence’s
explanation concerning the document entitled ‘Defence’s Position on the facts contained in the Closing
Order’”, E5/11/6; see also “Annex 2: Part III Character Information”, E5/11/6.2 , 30 April 2009.
68
T., 1 April 2009, pp. 17, 51-100. Several opportunities were provided to the Accused during hearings
to further clarify his position with regard to particular facts in the Amended Closing Order (see e.g., T., 30
April 2009, pp. 57-78; 18 May 2009, pp. 5-59; 16 June 2009, pp. 78-81, 86-87; 17 June 2009, pp. 37-39).
69
See e.g., “Defence Position on the Facts Contained in the Closing Order”, E5/11/6.1, paras 3, 7, 35, 39,
58-60, 169, 203, 213.
70
See e.g., Rules 62 and 62bis of the ICTR RPE; Rules 62 and 62bis of the ICTY RPE, and Rules 61 and
62 of the RPE of the SCSL.
71
See e.g., Prosecutor v. Serugendo, Judgement and Sentence, ICTR Trial Chamber (ICTR-2005-84-I),
12 June 2006, paras 4-11 (noting that a plea agreement was filed by the parties on 16 February 2006 andconviction entered by the Trial Chamber following a plea hearing on 15 March 2006); Prosecutor v. Bralo,
Sentencing Judgement, ICTY Trial Chamber (IT-95-17-S), 7 December 2005, para. 3 (noting that a plea
agreement was filed by the parties on 19 July 2005 and conviction entered by the Trial Chamber following
a hearing on the same day).

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remained free to assess what weight, if any, to give it.72 The Internal Rules do, however,
permit the Chamber to accept such facts as proven.73
1.6.5.2

Questioning of the Accused and the privilege against selfincrimination

50. Accused persons enjoy a fundamental right not to be compelled to testify against
themselves or to confess guilt.74 The Accused was informed of this right and neverthelesschose to respond to questions at trial and to confirm many of the facts contained in the
Amended Closing Order.75 The Accused’s responses constituted evidence, the probativevalue of which has been evaluated by the Chamber.76
51. Internal Rule 90(1) obliges the Chamber to pose all pertinent questions to the
Accused, irrespective of whether these would tend to prove or disprove his guilt. Over thecourse of the trial, the Chamber (followed by the Parties) questioned the Accused inrelation to seven thematic areas of relevance to the proceedings.77
1.6.5.3

Witnesses, Civil Parties and Experts

52. The Internal Rules exempt certain individuals from the requirement of testifying
under oath or affirmation.78 These individuals may nevertheless testify and have their72

T., 17 February 2009, pp. 15-16 (noting the role of the agreement on facts in the proceedings).
New sub-Rule 87(6) of the Internal Rules, which came into force on 21 September 2009, clarifies that“[w]here the Co-Prosecutors and the Accused agree that alleged facts contained in the Indictment are notcontested, the Chamber may consider such facts as proven.”74
See ECCC Law, Article 35 (new)(g); Internal Rule 21(1)(d); see also Article 14(3)(g) of the ICCPR.
75
T., 30 March 2009, p. 5.
76
See also Internal Rule 87(5) (“The Chamber shall give the same consideration to confessions as toother forms of evidence.”)77
Direction on the Scheduling of the Trial, E26, 20 March 2009, para. 9 (these seven thematic areas
were: issues relating to M-13; establishment of S-21 and the Takmao prison; implementation of CPK policy
at S-21; armed conflict; functioning of S-21, including Choeung Ek; establishment and functioning of S-24;
and issues relating to the character of the Accused). Civil Parties were not, however, permitted to posequestions to the Accused or to witnesses on issues relating to the character of the Accused; see Oral
Decision of the Chamber at T., 27 August 2009, p. 74 (Judge LAVERGNE dissenting); Decision on Civil
Party Co-Lawyer’s Joint Request for a Ruling on the Standing of Civil Party Lawyers to Make Submissions
on Sentencing and Directions Concerning the Questioning of the Accused, Experts and Witnesses
Testifying on Character, E72/3, 09 October 2009; Decision on the Appeals Filed the Lawyers for Civil
Parties (Groups 2 and 3) Against the Trial Chamber’s Oral Decisions of 27 August 2009, E169/1/2, 24
December 2009.
78
Included in this category are the Accused, the Civil Parties and witnesses exempt from doing so
pursuant to Internal Rule 24(2).
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statements put before the Chamber and assessed as evidence where relevant andprobative.
53. In particular, a number of the individuals who testified before the Chamber were
survivors of S-21 and S-24. The ECCC legal framework distinguishes between thesurvivors who testified as witnesses and the survivors who were joined as Civil Parties
and also provided evidence before the Chamber. Pursuant to Internal Rule 23(6), uponjoining as a Civil Party, a victim becomes a party to the proceedings. These survivors
were accordingly no longer questioned as witnesses and were exempted by the Internal
Rules from the requirement to testify under an oath or affirmation.
54. A total of 24 witnesses testified under oath before the Chamber during theproceedings.79 Protective measures were afforded in a limited number of cases.80 22 Civil
Parties provided evidence before the Chamber.
55. Pursuant to Internal Rule 31, the Chamber sought expert opinion on a variety ofsubjects relevant to the proceedings.81 Expert testimony is designed to provide specialised
knowledge, be it a skill, or knowledge acquired through training or research, whichassists the Chamber in understanding the evidence presented. The Chamber retains its
exclusive responsibility to decide any issue within its competence. A total of nine experts
appeared before, or made submissions to, the Chamber over the course of the trial.
1.6.5.4

Documents

56. Over the course of the trial, approximately 1,000 documents were put before theChamber and subjected to examination.
57. As a general rule, documents were required to be available in all three working
languages of the ECCC (Khmer, French and English) in order to be put before the79

Internal Rule 24(2) excludes a number of witnesses, including the father, mother and ascendants of the
Accused or the Civil Parties, from taking an oath prior to their statements before the Trial Chamber.
80
See Decision on Protective Measures for Civil Parties E2/62 and E2/89 and for Witnesses KW-10 and
KW-24, E135, 7 August 2009.
81
See Decision on Protective Measures for Witnesses and Experts and on Parties’ Request to Hear
Witnesses and Experts – Reasons, E40/1, 10 April 2009, paras 26-28; Decision Concerning the Assignmentof Experts, E51, 23 April 2009.

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Chamber.82 In light of the requirements of Internal Rule 87, only those parts of
documents which were read out in full or summarised and subjected to examination wereconsidered put before the Chamber. Practices developed before the Chamber to expedite
proceedings in relation to uncontested documents have since been reflected inamendments to the Internal Rules.83
1.6.6 Spelling of Names and Locations
58. The spelling of certain names in transcripts and documents sometimes differedbased on a number of circumstances, such as the person’s area of provenance, thepronunciation of the name or its subsequent interpretation. Similarly, the spelling ofcertain locations sometimes differed across various references. The Chamber has
accepted that names and locations with similar but not identical spelling may nonethelessrefer to the same individuals or locations. Given the Cambodian practice of adopting
different names, as well as the prevalence of aliases and revolutionary names within the
CPK at the time, the Chamber also notes that individuals were sometimes referred to byvarious appellations.

82

See also Oral Decision of the Chamber at T., 19 May 2009, pp. 31-33.
On 21 September 2009, an amendment to Internal Rule 87(3) came into force which clarified that“[e]vidence from the case file is considered put before the Chamber or the parties if its content has beensummarised, read out, or appropriately identified in court” (emphasis added); see also Oral Decision of the
Chamber at T., 20 May 2009, pp. 4-6 (noting that where the discussion of a document extended beyond its
initial summary, the entire discussion is available for the Chamber’s decision. Further, a party need nothave specifically commented on a document for it to be considered subjected to examination).

83

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2
2.1

FACTUAL AND LEGAL FINDINGSHistorical Context and Armed Conflict

59. A brief overview of the historical context in which the DK regime took power in
Cambodia indicates that during most of the period of the DK regime, Cambodian and
Vietnamese armed forces engaged in increasingly violent hostilities. This culminated inthe Vietnamese military offensive, the fall of Phnom Penh on 7 January 1979 and the DK
leadership fleeing the capital.84
60. The Cambodian-Vietnamese conflict stemmed from various factors, some of which
dated back centuries. The Vietnamese Southern expansion started in the 15th century,
resulting in hereditary enmity between Cambodia and Vietnam. In addition to thishistorical animosity, disputes over border demarcations drawn by the French, often
favouring the Vietnamese side, and in particular over the Brevié line (drawn in 1939 as amaritime boundary for administrative and policing purposes) further increased tension.85
61. The Cambodian communists in particular harboured resentment towards Vietnam
after the 1954 Geneva Conference, where they perceived betrayal by their Vietnamesecounterparts.86 This sentiment was further aggravated in the early 1970s. While the84

T., 25 May 2009 (Nayan CHANDA), pp. 52, 71.
T., 25 May 2009 (Nayan CHANDA), pp. 31-32, 35, 56, 57, 64, 81-83; T., 26 May 2009 (Nayan
CHANDA), p. 25. Expert Nayan CHANDA described the conflict as arising in part from “anti-Vietnamese
racism” (T., 25 May 2009, p. 35); see also “Brother Enemy: The War after the War” (book) by Nayan
CHANDA, E3/193, pp. 5, 32-33, 49, 54-56, ERN (English) 00192190, 00192217-00192218, 00192234,
00192239-00192241 and more generally pp. 49-57, ERN (English) 00192234-00192242; “Report Preparedat the Request of the Subcommittee on Asian and Pacific Affairs, Committee on International Relations by
the Congressional Research Service, entitled ‘Vietnam-Cambodia Conflict’ dated 4 October 1978”, E3/201,
pp. 2-3, 37, ERN (English) 00187381-00187382, 00187396; “US Department of State ‘International
Boundary Study No.155’”, including Appendix 12: Translation of letter dated 31 January 1939 by Mr.
Brevié establishing the Brevié Line, E3/520, in particular ERN (English) 00157794. See further “1:959,000
scale colour nautical map of Gulf of Siam showing off-shore islands in relation to Vietnam, Cambodia andThailand”, E3/534, for a map showing the Brevié Line and “Black Paper” (book), published September
1978, E3/199, Chapter 1: “The Annexationist Nature of Vietnam”, pp. 3-13, ERN (English) 0008251400082519 (for an illustration of anti-Vietnamese rhetoric).
86T., 25 May 2009 (Nayan CHANDA), pp. 32-33, 87; T., 26 May 2009 (Nayan CHANDA), p. 13.
Unlike their Vietnamese and Laotian counterparts, the Cambodian communists (“Khmer Issarak”) were
excluded from participation in the negotiations. In addition, the Vietnamese communists gave up theircolleagues’ claims for communist-controlled areas to the Royal Government of Cambodia. Finally, the85

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Vietnamese had assisted the Khmer Rouge in their resistance struggle against the
Cambodian pro-American LON Nol regime, which had overthrown Prince Sihanouk inMarch 1970, tension again arose following the Paris peace talks in 1972-1973 between
the Vietnamese and the United States of America. The United States demanded that the
Khmer Rouge enter into negotiations with the LON Nol government, which they refused,believing that they were close to victory. The Vietnamese and the United States signed apeace treaty in 1973, and the United States commenced a bombing campaign on
Cambodia. The Khmer Rouge viewed the peace treaty as a betrayal by the Vietnamese,
which freed up American bombers to inflict massive bombings on Cambodia. The peaceagreement was followed by Khmer Rouge attacks on Vietnamese arms depots, hospitals
and base camps, and executions of Vietnamese cadres inside Cambodia.87
62. Tensions were further exacerbated by the Khmer Rouge and then DK leaders’ belief
that Vietnam intended to impose and control an Indochinese Federation, which would
result in Cambodia being “swallowed” by its eastern neighbour.88 The Vietnamese, on theother hand, feared domination by the Khmer Rouge’s ally, China. It was within thisclimate of distrust and hostility that the first border clashes between Cambodia andVietnam occurred soon after the fall of Phnom Penh to the Kampuchea People’s National
Liberation Armed Forces (“KPNLAF”) on 17 April 1975 and that of Saigon to the North
Vietnamese army two weeks later, on 30 April 1975.89
63. The Amended Closing Order summarises the conflict between Cambodia andVietnam as follows:
Cambodian communists were ordered to disband and disarm (“Brother Enemy: The War after the War”
(book) by Nayan CHANDA, E3/193, pp. 58-59, ERN (English) 00192243-00192244).
87
T., 25 May 2009 (Nayan CHANDA), pp. 53-55, 88; T., 26 May 2009 (Nayan CHANDA), p. 13;“Brother Enemy: The War after the War” (book) by Nayan CHANDA, E3/193, pp. 48, 64, 68, 72, ERN(English) 00192233, 00192249, 00192253, 00192257.
88
T., 25 May 2009 (Nayan CHANDA), pp. 27-28, 32, 83-85; “Letter to the UN Secretary General fromthe Representative of the DK Government dated 2 January 1979, E3/528, ERN (English) 00078239; seealso an illustration of this belief and related propaganda in “Black Paper” (book), published September
1978, E3/199, pp. 14-15, 19-21, ERN (English) 00082520, 00082522-00082523; “DK Embassy in Beijing
Public Statement entitled ‘News of Democratic Kampuchea, No. 005’”, E3/758; “Press Communiqué of the
Spokesman of the Ministry of Propaganda and Training (and Information) of the Democratic Kampuchea”,
E3/761; “International Media Report ‘Phnom Penh Rally Marks 17th April Anniversary’”, E3/783, ERN(English) S00010558..
89
T., 25 May 2009 (Nayan CHANDA), pp. 32-34, 88; “Brother Enemy: The War after the War” (book)by Nayan CHANDA, E3/193, pp. 5-6, ERN (English) 00192190-00192191.

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16. Almost immediately following the KPNLAF’s entry into Phnom
Penh on 17 April 1975, international armed conflict broke out between
Vietnam and Cambodia. Protracted hostilities continued until at least 6
January 1979.
17. Although Democratic Kampuchea and the Socialist Republic ofVietnam only officially recognised the existence of international armed
conflict on 31 December 1977, there is evidence that, from mid-April
1975, with the exception of several respites during peace negotiations or
diplomatic and cultural visits, there was escalating and increasingly
frequent armed violence between the two States. In particular, the former
KPNLAF, renamed the Revolutionary Army of Kampuchea [(“RAK”)],
fought the Vietnam People’s Army at various times in the Cambodian
territories of: Ratanakiri; Mondulkiri; Kratie; Kompong Cham; Prey
Veng; Svay Rieng; Kandal; Takeo; Kampot; and the islands of Wai, Koh
Ach, Koh Tral, Koh Ses, Koh Thmei, Koh Sampoch, Koh Rong, andKoh Muk Ream.
18. At the end of 1977, the conflict escalated into a full-scale war whichreached deep into Democratic Kampuchea, and led the DK to seize theUnited Nations Security Council of the matter on 31 December 1978.
By 7 January 1979, the RAK had been forced to flee Phnom Penh and,from that point forward, the regime rapidly lost effective control of thegreater part of Cambodian territory.90

64. The Accused did not dispute that there was an armed conflict with Vietnam as of
31 December 1977. Initially, he took no position in relation to the preceding period.
During his testimony on 9 and 10 June 2009, however, he acknowledged the existence ofa continuous armed conflict between DK and Vietnam from 17 April 1975 to 6 January
1979, although claiming to have had limited knowledge of it at the time. In its final
submission and closing statement, the Defence reiterated its acknowledgment that DK
and Vietnam were in armed conflict from 31 December 1977, but alleged that theexistence of an armed conflict before late 1977 remained uncertain.91 The Co-Prosecutors
submitted that an international armed conflict existed between 17 April 1975 and 6
January 1979.92

90

Amended Closing Order, paras 16-18 (footnotes omitted).
T., 9 June 2009 (Accused), pp. 75-79, pp. 84-89; T., 10 June 2009 (Accused), pp. 69, 75-76. For moredetails on the knowledge of the Accused at the time, see also “Defence Position on the Facts Contained in
the Closing Order”, E5/11/6.1, paras 28, 28a-d. “Final Defence Written Submissions”, E159/8, paras. 2534; T., 25 November 2009 (Defence Closing Statement), pp. 80-82.
92“Co-Prosecutors’ Final Trial Submission with Annexes 1-5”, E159/9, paras. 49-61, 295; T., 25
November 2009 (Co-Prosecutors’ Closing Statement), pp. 48-50. The Civil Parties did not make any
submissions with regards to the existence of an international armed conflict.
91

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65. The relationship between Vietnam and Cambodia during the DK period can bedivided into two main phases; the first from the KPNLAF’s entry into Phnom Penh on 17
April 1975 until the DK’s severance of diplomatic relations with Vietnam on 31
December 197793 and the second from 31 December 1977 until the fall of Phnom Penh
on 7 January 1979, when the DK government fled the capital.
2.1.1 April 1975 to 31 December 1977
66. As early as April 1975, disputes over the control of a number of islands off theCambodian and Vietnamese coasts resulted in armed confrontations between the armed
forces of the two nations. In May 1975, the RAK forces seized the islands of Phu Quoc(“Koh Tral” in Khmer) and Tho Chu (“Koh Krachak” in Khmer), causing numerous
casualties, before the islands were re-taken by the Vietnamese army two weeks later.
Efforts to assert control over disputed islands, in particular the island of Puolo Wai,
resulted in the seizure by the RAK of an American container ship, the Mayaguez, near
this island. Puolo Wai was captured by the Vietnamese army in June 1975 but returned to
DK two months later.94
67. The Vietnamese army also conducted raids into the Cambodian provinces ofRatanakiri and Mondulkiri. From August to December 1975, there were a number of
RAK incursions into Vietnamese territory, including into the provinces of Ha Tien, Tay
Ninh, Kontum and Darlac. DK leaders also believed they were the victims of a failed
coup or assassination in this period, staged by Vietnam.95

93“Radio announcement by Democratic Kampuchea Ministry of Foreign Affairs announcing the severingof relations with Vietnam”, E3/171; “Statement of the Minister of Foreign Affairs of Democratic
Kampuchea”, 31 December 1977, E3/756.
94
T., 25 May 2009 (Nayan CHANDA), pp. 8-9, 43-44, 58-59, 63, 65; T., 26 May 2009 (Nayan
CHANDA), p. 17; “Brother Enemy: The War after the War” (book) by Nayan CHANDA, E3/193, pp. 5, 915, ERN (English) 00192190, 00192194-00192200; “Report Prepared at the Request of the Subcommitteeon Asian and Pacific Affairs, Committee on International Relations by the Congressional Research Service,entitled ‘Vietnam-Cambodia Conflict’ dated 4 October 1978”, E3/201, p. 8, ERN (English) 00187387; seealso “Report by the Ministry of Foreign Affairs of the Socialist Republic of Vietnam entitled ‘Facts andDocuments on Democratic Kampuchea’s Serious Violations of the Sovereignty and Territorial Integrity of
the Socialist Republic of Viet Nam’ dated January 1978”, E3/526, pp. 10, 16, ERN (English) 00187275,
00187281 (for a Vietnamese perspective).
95
T., 25 May 2009 (Nayan CHANDA), pp. 43-44; “Report Prepared at the Request of the Subcommitteeon Asian and Pacific Affairs, Committee on International Relations by the Congressional Research Service,

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68. According to Expert Nayan CHANDA, more than 150,000 civilians of Vietnameseorigin residing in Cambodia were expelled in the five months following the fall of Phnom
Penh to the Khmer Rouge on 17 April 1975 and took refuge in the South of Vietnam.96
69. Numerous DK internal documents show that border clashes occurred throughout
1976 and that DK continued to regard Vietnam as its enemy at the time. In particular,
various DK military reports and telegrams from early 1976 described incidents, armed
attacks and killings on both sides of the border, mainly near the Pou Nhak Mountain (OVay) and in the provinces of Svay Rieng (Chantrea district), Prey Veng (Preah Sdah
district) and Mondulkiri (in Ou Reang and Dak Dam) by either Vietnamese or RAK
forces, and requested military instructions. At least four meetings of the CPK Standing
Committee, held between February and May 1976, addressed the border situation andclashes with Vietnam (in particular in the provinces of Ratanakiri, Svay Rieng, Kandal(Kaam Samna) and Mondulkiri (including in Dak Dam)) and decided on military
measures to be taken in response. Military meeting minutes and a speech by DK Ministerof Foreign Affairs IENG Sary in December 1976, in which he indicated that aggression
against DK would be resisted, also attest to the continuation of the conflict between DK
and Vietnam in the latter part of 1976. Several border discussions took place during 1976,
but were generally inconclusive.97

entitled ‘Vietnam-Cambodia Conflict’ dated 4 October 1978”, E3/201, p. 8, ERN (English) 00187387;“Report by the Ministry of Foreign Affairs of the Socialist Republic of Vietnam entitled ‘Facts andDocuments on Democratic Kampuchea’s Serious Violations of the Sovereignty and Territorial Integrity of
the Socialist Republic of Viet Nam’ dated January 1978”, E3/526, p. 10, ERN (English) 00187275 (for aVietnamese perspective); “Black Paper” (book), published September 1978, E3/199, p. 76, ERN (English)
00082551; “News of DK: News Summary from Phnom Penh”, E3/755, ERN (English) 00305342.
96
T., 25 May 2009 (Nayan CHANDA), pp. 10-11, 45; T., 26 May 2009 (Nayan CHANDA), p. 2.
97
T., 26 May 2009, p. 7; see, e.g., “Black Paper” (book), published September 1978, E3/199; “DK
Telegram entitled ‘Telegram via Kolaing to Uncle 89’ dated 23 January 1976”, E3/806; “DK Report
entitled ‘Report from Sector 23 to East Zone’ dated 20 February 1976”, E3/768; “CPK Standing
Committee Meeting Minutes entitled ‘Minutes, Meeting of Standing Committee’ dated 22 February 1976”,
E3/750; “DK Telegram by Chhin entitled ‘Telegram To Beloved Brother 89’ dated 29 February 1976”,
E3/809; “DK Telegram by Ya entitled ‘Telegram 25, Dear Respected Brother’ dated 7 March 1976”,
E3/791; “DK Military Report entitled ‘To beloved Brother 89’ dated 9 March 1976”, E3/753; “CPKStanding Committee Meeting Minutes entitled ‘Record of Meeting of the Standing Committee’ dated 11
March 1976”, E3/89; “DK Telegram by Chhon entitled ‘Telegram 21, Band 676, To Beloved and Missed
Brother Pol’ dated 21 March 1976”, E3/114; “CPK Standing Committee Meeting Minutes entitled ‘Recordof Meeting of the Standing Committee’ dated 26 March 1976”, E3/751; “CPK Standing Committee
Meeting Minutes entitled ‘Examination of the Reaction of Vietnam During the Fifth Meeting’ dated 14
May 1976”, E3/752, ERN (English) 00182693; “DK Military Meeting Minutes by Division 920 entitled

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70. Expert Nayan CHANDA spoke of a lull in the fighting between DK and Vietnam in
1976, but acknowledged that he had not had access to internal DK documents such as
those cited above. The Chamber notes that until the severance of diplomatic relations in
December 1977, and in some instances even beyond that date, a policy of secrecy
concerning the conflict was implemented in both countries. There appears to have been avariety of reasons for the secrecy, the main one stemming from a political will to avoid
interference from other countries.98 The Chamber therefore considers that any appearanceof a relative respite in 1976 is attributable not to any cessation of hostilities, but rather tothe covert nature of the armed conflict between DK and Vietnam at the time.
71. The existence of conflict between DK and Vietnam in 1976 is also evident from thepresence of Vietnamese prisoners in S-21 as early as that year. The Accused did notdispute that the first record of an S-21 prisoner described as “Vietnamese” dates back to 7
February 1976. He also acknowledged that Vietnamese prisoners were sent to S-21 as
early as 1975 and that their number increased, particularly in 1978 as the conflict with
Vietnam escalated, to a total of 345 by 6 January 1979. All Vietnamese prisoners at S-21
were divided into one of three categories (soldiers, spies and civilians), interrogated,sometimes tortured, and invariably killed.99‘Plenary Meeting of the 920th Division’ dated 7 September 1976”, E3/145; “DK Military Meeting Minutes
by Division 801 entitled ‘DK Military Meeting Minutes of Division 801’ dated 16 December 1976”,
E3/162; “International Media Report dated 19 January 1978 on Speech of Pol Pot on 17 January 1978”,E3/200, ERN (English) S00008671; “Report Prepared at the Request of the Subcommittee on Asian andPacific Affairs, Committee on International Relations by the Congressional Research Service, entitled‘Vietnam-Cambodia Conflict’ dated 4 October 1978”, E3/201, p. 8, ERN (English) 00187387; see also
“Report by the Ministry of Foreign Affairs of the Socialist Republic of Vietnam entitled ‘Facts andDocuments on Democratic Kampuchea’s Serious Violations of the Sovereignty and Territorial Integrity of
the Socialist Republic of Viet Nam’ dated January 1978”, E3/526, pp. 11, 20-21, ERN (English) 00187276;
00187285, 00187286 (for a Vietnamese perspective).
98
T., 25 May 2009 (Nayan CHANDA), pp. 21, 71, 73-74, 90-91, 105-107, 109-110; T., 26 May 2009
(Nayan CHANDA), pp. 6-7; T., 6 August 2009 (David CHANDLER) pp. 17-18, 99-100; “Brother Enemy:
The War after the War” (book) by Nayan CHANDA, E3/193, pp. 83, 91, 196, 318, ERN (English)
00192268, 00192276, 00192381, 00192503.
99
T., 9 June 2009 (Accused); pp. 72, 96-97; T., 10 June 2009 (Accused), pp. 2, 3, 5-19; “Defence
Position on the Facts Contained in the Closing Order”, E5/11/6.1, paras. 108 (a, b, c); T., 1 April 2009
(Agreed Facts), pp. 72-73; “Vietnamese Prisoners Entering S-21”, E68.27; “S-21 Prisoners identified as
Vietnamese”, E68.30.

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72. From January 1977, DK increasingly conducted raids into Vietnamese territory,
none of which were publicised in either country, and prepared army units in the east of
the country for an attack on Vietnam.100
73. On 30 April 1977, the RAK initiated a large-scale attack against the Vietnamese
township of Tinh Bien and a string of villages in the An Giang Province in the Mekong
Delta, killing many civilians. The aggression continued through the following months.
After unpublicised bombing of Cambodia by Vietnam starting in May 1977 andunsuccessful peace attempts in June 1977, a second major DK attack followed on 24
September 1977 in the Tay Ninh Province, killing hundreds of civilians.101
74. The Vietnamese army retaliated in October and November 1977 with a major
unpublicised military operation into the Cambodian province of Svay Rieng, resulting in
few losses for the RAK forces. It launched a further extensive attack in December 1977 at
various points along the border, in particular in the provinces of Kampong Cham, Svay
Rieng and Takeo, this time inflicting major defeats on the DK side.102

100

T., 25 May 2009 (Nayan CHANDA), pp. 13, 91-94, 107-108; “Brother Enemy: The War after theWar” (book) by Nayan CHANDA, E3/193, ERN (English) 00192272; T., 6 August 2009 (DavidCHANDLER) pp. 16-18, 99-100; “‘Voices from S-21 – Terror and History in Pol Pot’s Secret Prison’”(book) by David CHANDLER, E3/427, p. 61, ERN (English) 00192740; see also “Report by the Ministryof Foreign Affairs of the Socialist Republic of Vietnam entitled ‘Facts and Documents on Democratic
Kampuchea’s Serious Violations of the Sovereignty and Territorial Integrity of the Socialist Republic ofViet Nam’ dated January 1978”, E3/526, p. 22, ERN (English) 00187287 (for a Vietnamese perspective).
101
T., 25 May 2009 (Nayan CHANDA), pp. 11-18, 41, 43-44, 46; T., 26 May 2009 (Nayan CHANDA),
pp. 18-19; “Brother Enemy: The War after the War” (book) by Nayan CHANDA, E3/193, pp. 87, 91-92,
186, 193-194, 198, 220, ERN (English) 00192272, 00192276-00192277, 00192371, 00192378-00192379,
00192383, 0192405; “Report Prepared at the Request of the Subcommittee on Asian and Pacific Affairs,
Committee on International Relations by the Congressional Research Service, entitled ‘Vietnam-Cambodia
Conflict’ dated 4 October 1978”, E3/201, pp. 8-9, ERN (English) 00187387-00187388; “DK Telegram by
Chhean entitled ‘Telegram 46 - Radio Band 600 - Respected and beloved brother’ dated 15 June 1977”,
E3/818; “DK Telegram by Chhean entitled ‘Telegram 62 - Radio Band 1474 - Respectfully Presented to
Respected and Beloved Mo-81’ dated 14 August 1977”, E3/824; see also “Report by the Ministry ofForeign Affairs of the Socialist Republic of Vietnam entitled ‘Facts and Documents on Democratic
Kampuchea’s Serious Violations of the Sovereignty and Territorial Integrity of the Socialist Republic ofViet Nam’ dated January 1978”, E3/526, pp. 14, 22-23, ERN (English) 00187279, 00187287-00187288 (fora Vietnamese perspective).
102
T., 25 May 2009 (Nayan CHANDA), pp. 19-21, 44, 106; “Brother Enemy: The War after the War”
(book) by Nayan CHANDA, E3/193, pp. 196, 206-207, ERN (English) 00192381, 00192391-00192392;“Report Prepared at the Request of the Subcommittee on Asian and Pacific Affairs, Committee on
International Relations by the Congressional Research Service, entitled ‘Vietnam-Cambodia Conflict’ dated
4 October 1978”, E3/201, p. 9, ERN (English) 00187388; “DK Telegram by Chhon entitled ‘Telegram 56 Radio Band 348 - Dear Respected and Beloved M 870’ dated 26 October 1977”, E3/834; “DK Telegram by

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2.1.2 31 December 1977 to 7 January 1979
75. The existence of an international armed conflict between DK and Vietnam from theend of December 1977 to at least 6 January 1979 is uncontested by the parties.103
76. At the end of December 1977, the DK leaders decided to publicise the war. On 31
December 1977, following a speech by DK President KHIEU Samphan denouncing
Vietnamese aggression, the DK Minister of Foreign Affairs IENG Sary issued astatement severing diplomatic relations with Vietnam, and Vietnamese troops withdrew
from Cambodia.104
77. On 6 January 1978, POL Pot presented the Vietnamese withdrawal as a “grandvictory” over the Vietnamese army, and confessions of Vietnamese prisoners at S-21
started being broadcast for propaganda purposes.105
78. There was a wave of purges in the Cambodian Eastern Zone starting in January
1978, and border clashes continued throughout that year. In particular, on 14 March
1978, RAK forces conducted a violent attack in the Chau Doc area, resulting in many
civilian casualties. In April 1978, Radio Phnom Penh broadcast excerpts from aresolution adopted at a “Phnom Penh Rally”, in which the participants, including the DK
Chhon entitled ‘Telegram 54 - Radio Band 642 - Dear Respected, Beloved and Missed M 870’ dated 26
October 1977”, E3/835; “DK Telegram by Chhon entitled ‘Report to Brother about Situation of Enemy
along the Route 22-7’ dated 22 December 1977”, E3/858; “DK Telegram by Chhon entitled ‘Telegram 90:
to Beloved Office 870 about situation of enemies in battle field route No 22’ dated 9 December 1977”,
E3/849.
103“Defence Position on the Facts Contained in the Closing Order”, E5/11/6.1, para 28.
104
T., 25 May 2009 (Nayan CHANDA), pp. 44, 47, 49-50, T., 6 August 2009 (David CHANDLER), p.
100; “Statement of the Minister of Foreign Affairs of Democratic Kampuchea”, 31 December 1977,
E3/756; “Radio announcement by Democratic Kampuchea Ministry of Foreign Affairs announcing thesevering of relations with Vietnam”, E3/171; ““Brother Enemy: The War after the War” (book) by Nayan
CHANDA, E3/193, pp. 207-208, 213, 297, ERN (English) 00192392-00192393, 00192398, 00192482.
105
T., 10 June 2009 (Accused), pp. 3, 7-8; “Speech by Pol Pot entitled ‘The Valiant and Powerful
Revolutionary Army of Kampuchea Under the Leadership of the Communist Party of Kampuchea’ dated
17 January 1978”, E3/757, ERN (English) S00005012; “Brother Enemy: The War after the War” (book) byNayan CHANDA, E3/193, p. 213, ERN (English) 00192398. Various Vietnamese prisoners’ confessions,broadcast between January and December 1978, are contained in documents ranging from E3/665 toE3/747. See, e.g., “Radio broadcast of confession by SRV Lt. Tran Van Hay transcribed in the Foreign
Broadcast Information Service (Cambodia), 23 January 1978”, E3/665; “Radio broadcast of confession by
SRV ‘spy’, former South-Vietnam Lt. Tran Ngoc Tuong reported among various other foreign newsreports
in BBC SWB (Far Eastern Relations), 17 June 1978”, E3/716; “Radio broadcast of confession by female
SRV ‘spy’ Le Thi Vinh Sang reported among various other foreign newsreports in BBC SWB (Far Eastern
Relations), 22 December 1978”, E3/746.

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leaders, “solemnly pledged”, inter alia, to “exterminate resolutely all agents of the
expansionist, annexationist Vietnamese aggressors from our units and from Cambodian
territory forever”. This policy was reiterated in May 1978, when a broadcast aired byRadio Phnom Penh appealed to DK soldiers to kill the whole of the Vietnamese
population.106
79. In June 1978, Vietnam started bombing Cambodia and in October 1978 itcommenced preparations for a major offensive by placing troops and artillery along theborder. The Kampuchean National United Front for National Salvation (“KNUFNS”),
dedicated to overthrowing the DK regime, was founded.107
80. The Vietnamese Army launched a large-scale attack against DK in late December
1978. Despite fierce resistance by the RAK, the KNUFNS and Vietnamese troops entered
DK and within a few days had captured Phnom Penh on 7 January 1979.108
81. DK was also involved in armed border clashes with Thailand around the same time,
though these skirmishes were of much lesser significance than those with Vietnam.109

106

T., 25 May 2009 (Nayan CHANDA), pp. 16-18, 22, 26-27, 66; “Brother Enemy: The War after theWar” (book) by Nayan CHANDA, E3/193, pp. 213-214, 221-224, 251, ERN (English) 0019239800192399, 000192406-00192409, 00192436; “Broadcast entitled ‘Phnom Penh Rally Marks the 17th April
Anniversary’ dated 16 April 1978”, E3/783, ERN (English) S00010563; “Report about Cambodia’s
Strategy of Defence against Vietnam dated 15 May 1978”, including a Broadcast of 10 May 1978, E3/198,
ERN (English) 00003960; see also Expert Nayan CHANDA’s account of Ros Saroeun’s discovery of“Directive 870” dated 1 April 1977 to at least one DK district chief, requesting him to hand over to the state
security service all ethnic Vietnamese in the district, and all Khmers who had any Vietnamese connection
and his conclusion that this was the beginning of a campaign to kill all ethnic Vietnamese (T., 25 May 2009
(Nayan CHANDA), pp. 66-67; 107-108; “Brother Enemy: The War after the War” (book) by Nayan
CHANDA, E3/193, p. 86, 186, ERN (English) 00192271, 00192371.)
107
T., 25 May 2009 (Nayan CHANDA), pp. 28, 48-49; “Brother Enemy: The War after the War” (book)by Nayan CHANDA, E3/193, pp. 318, 333-334, 339, ERN (English) 00192503, 00192518-00192519,
00192524; “‘The Vietnam – Kampuchea Conflict (A Historical Record)’ dated 1979” (book), E3/522, pp.
45-46, ERN (English) 00187363-00187364.
108
T., 25 May 2009 (Nayan CHANDA), pp. 48, 52; “Brother Enemy: The War after the War” (book) byNayan CHANDA, E3/193, pp. 337, 341, 343, 345-346, ERN (English) 00192522, 00192526, 00192528(“Soon nine of Vietnam’s twelve divisions, accompanied by three regiments of front soldiers, would closein on Phnom Penh from the southeast to the north”), 00192530-00192531; see also “Telegram dated 31
December 1978 from the Deputy Prime Minister in Charge of Foreign Affairs of Democratic Kampuchea
addressed to the President of the Security Council (UN S/13001)”, E3/785; “Telegram dated 3 January
1979 from the Deputy Prime Minister in Charge of Foreign Affairs of Democratic Kampuchea addressed to
the President of the Security Council”, E3/209.
109
T., 25 May 2009 (Nayan CHANDA), pp. 26-27, 73; T., 26 May 2009 (Nayan CHANDA), p. 24.

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2.2

Overview of DK Period

82. The Accused has indicated either that he agrees with, or does not dispute,110
paragraphs 10-15 of the Amended Closing Order, which provide the following overview
of the DK period:
10. On 17 April 1975, the army of the Communist Party of Kampuchea(CPK), the Kampuchea People’s National Liberation Armed Forces(KPNLAF), entered Phnom Penh and seized national power. With theend of the civil war against LON Nol’s Khmer Republic, the CPK’sstated policy was to pass to “… the next phase of making socialist
revolution”. During the three years, eight months, and twenty days, that
followed, the CPK exercised effective authority over Democratic
Kampuchea, and pursued a policy of “completely disintegrat[ing]” theeconomic and political structures of the Khmer Republic and creating a“new, revolutionary State power”.
11. Historians and observers agree that this programme was
implemented through a number of means including the forced transfer ofresidents of Phnom Penh and other former Khmer Republic strongholds
to the countryside; the creation of Party-controlled agricultural
production cooperatives where people were made to work under
extremely difficult conditions to increase food production; and theelimination of officials and supporters of the previous regime.
Many of these CPK policies required the transformation of “new people”
into peasants. These individuals were broadly made up of evacuated citydwellers and peasants living under LON Nol control until April 1975, as
distinct from “old” or “base” people who were essentially peasants fromareas already under the authority of the CPK during the Khmer Republic
period.
12. Politically motivated extra-judicial executions were committed fromthe outset by military units. They continued thereafter in security centres
throughout the country. The CPK foreshadowed these events by[organising], in February 1975, a “Popular National Congress of the
National United Front of Kampuchea”, at which it publicly announced
that seven so-called Khmer Republic “super-traitors” were to besummarily killed for treason, post-liberation.
The Congress also declared that lower-level Khmer Republic personnel
would be welcomed by the revolutionary forces “provided they
immediately cease their service to the seven traitors and stop
cooperating with them”. This implied that any such personnel who did
not immediately defect to the Communist side were vulnerable tosummary execution.

110

T., 1 April 2009 (Agreed Facts), pp. 54-55; “Defence Position on the Facts Contained in the Closing
Order”, E5/11/6.1, paras 10-27.

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In fact, it appears that from the early 1970s, CPK security organs such as
M13, chaired by DUCH, had been tasked with executions, indicating thata policy of physically eliminating persons deemed “enemies” of therevolution was already institutionalised prior to 17 April 1975.
13. The CPK destroyed the legal and judicial structures of the Khmer
Republic. While it is true that Democratic Kampuchea adopted a
Constitution in January 1976, its Chapter 7, concerning “Justice,”
showed the CPK’s priority was to protect the State from subversion.
Article 10 provided for an unspecified “highest level of punitive sanction”
for “opposition and wrecking activities of a systematic character that
endanger the State”,[111] while declaring that other “crimes” must be dealt
with through “re-education and refashioning within the context of State or
popular organs”.
Although Article 9 promised that “courts constituted as People’s Courts
belonging to the people” would “embody the people’s justice and defend
the people’s rights and democratic freedoms,” there is no evidence thatthey were ever created. Moreover, while the first, and apparently only
meeting of what was said to be a popularly elected People’s
Representative Assembly mandated the formation of a Judicial
Committee in April 1976, no evidence exists of any implementation of
Article 9. This left the punishments set forth in Article 10 to be applied
arbitrarily. Furthermore, there is no evidence that the CPK establishedappropriate facilities for captured enemy combatants or civilians, ormechanisms to challenge the legality of their arrest, detention orpunishment.
14. The old legal structures were replaced by re-education, interrogationand security centres where former Khmer Republic officials andsupporters, as well as others accused of offences against the CPK, weredetained and executed.
This network[112] of security centres was supplemented by a programmeof surveillance at all levels of the regime which aimed to identify, report,
and eliminate potential enemies of those in control of the Party.
15. Thus, numerous persons, rightly or wrongly linked to the Khmer
Republic or its purported social class foundations, were punished orsummarily executed by the CPK in the days and weeks immediately
following the “liberation” of Phnom Penh, through to the end of theregime.113

111

The Chamber notes that this language does not correspond to the English translation of “Constitutionof Democratic Kampuchea”, E3/27, at ERN 00184836, which states: “Dangerous activities in opposition to
the people’s State must be condemned to the highest degree.”112
The Accused did not agree that there was a direct link between the security centres and therefore did
not accept the use of the word “network”. In all other respects however, he agreed with this statement; see“Defence Position on the Facts Contained in the Closing Order”, E5/11/6.1, paras 25-26; T., 1 April 2009
(Agreed Facts), p. 55.
113
Amended Closing Order, paras 10-15 (footnotes omitted).

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83. It is within this historical and political context that the structure and policy of the
CPK, particularly as it applied to the operation of S-21 and the charges against the
Accused, are examined.
2.2.1 CPK structure
84. Following the liberation of Phnom Penh, the CPK met at a Party Congress inJanuary 1976 to formalise by statute (“CPK Statute”),114 a complex, centrally-organised
structure by which it intended to govern. The CPK Statute provided that the entire
government apparatus and the armed forces would be under the complete control of theCPK.115 Its provisions reflected earlier policy and structures devised at the First Congressof the CPK in 1960, including the establishment of a Central Committee and a Standing
Committee.116
85. In practice, the Central Committee met rarely. Its powers were delegated to, andexercised by its executive, the Standing Committee, the membership of which comprised
the Secretary and Prime Minister POL Pot, his Deputy Secretary NUON Chea and sevenother high-level members of the CPK, either as full or alternate members.117 The
Standing Committee met frequently and its daily work was conducted from Office 870
based in Phnom Penh.118 Office 870 and the Standing Committee were known also as the“Centre”, the “Organization,”119 or “Angkar”120 and were responsible for monitoring and

114“Communist Party of Kampuchea: Statute”, E3/28, pp. 1-55; “CPK Magazine entitled ‘Revolutionary
Flag’, dated June 1976”, E3/36.
115“Communist Party of Kampuchea: Statute”, E3/28, Art. 27; “Decision of the Central Committee
Regarding a Number of Matters of 30 March 1976”, E3/13, ERN (English) 00182814.
116
T., 18 May 2009 (Craig ETCHESON), p. 77. An earlier meeting of the Standing Committee also
signalled the manner in which work would be delegated, the operational process, preparations for living incommon and specific work arrangements for commerce and the military; see “Meeting of the Standing
Committee of 9 October 1975”, E3/14.
117“Written Record of Analysis by Investigator Craig C. Etcheson”, E3/32, para. 12; “Decision of theCentral Committee Regarding a Number of Matters of 30 March 1976”, E3/13, ERN (English) 00182814.
118
T., 21 May 2009 (Craig ETCHESON), p. 22; “Meeting of the Standing Committee of 9 October1975”, E3/14.
119
Also known as the “Party Centre”; see “Written Record of Analysis by Investigator Craig C.
Etcheson”, E3/32, fn. 18; T., 18 May 2009 (Craig ETCHESON), pp. 70, 81.
120
T., 18 May, 2009 (Accused), p. 17; T., 18 May 2009 (Craig ETCHESON), pp. 69-70.

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implementation of CPK policy nationwide.121 Office 870 discharged these responsibilities
through a network of subsidiary offices.122
86. The CPK Statute was a primary source of CPK policy, albeit applying directly only
to those who were members of the Party.123 Nonetheless its provisions had implications
for the whole of the country.124 From the outset, the entire civilian population wasgoverned by a network of bodies tightly controlled by the Central Committee through theStanding Committee. The country was divided into Zones, and then subdivided into
Sectors, Districts, and Communes.125 With the advent of the DK regime, Communes
which traditionally had been divided into villages were “combined into larger entities
known as Cooperatives, within which communal eating and work were organized”.126
Other Commune or Cooperative units comprised mobile brigades, groups of 100 workers
and local militia.127 The Commune or Cooperative branches of the CPK were under theleadership of branch secretaries.128
87. Zones were governed by three-person Zone Committees comprising a Secretary,
Deputy-Secretary responsible for security and a Member responsible for economics
appointed by the Standing Committee. In addition to the six original Zones there were anumber of autonomous sectors, and special municipal regions under military authority,
including DK’s capital city, Phnom Penh.129 At each level, the leadership structure121T., 18 May 2009 (Craig ETCHESON), p. 81; “Decision of the Central Committee Regarding a
Number of Matters of 30 March 1976”, E3/13, ERN (English) 00182809.
122
T., 21 May 2009 (Craig ETCHESON), p. 28; see also “Meeting of the Standing Committee of 9
October 1975”, E3/14.
123
T., 21 May 2009 (Craig ETCHESON), p. 20.
124
T., 21 May 2009 (Craig ETCHESON), p. 20 (“[…] because the Statute of the Communist Party of
Kampuchea was the guiding document of the organization which exercised dictatorial state power in
Cambodia, in fact many of the provisions embodied within the Statute of the Communist Party were
imposed on the entire people of the nation.”)125“Written Record of Analysis by Investigator Craig C. Etcheson”, E3/32, paras. 7-10; T., 18 May 2009
(Craig ETCHESON), p. 76; “Communist Party of Kampuchea: Statute”, E3/28, Article 7.
126“Written Record of Analysis by Investigator Craig C. Etcheson”, E3/32, para. 10; see also “CPK
Magazine entitled ‘Revolutionary Flag’, Special Issue, October - November 1977”, E3/29, ERN (English)
00182581.
127“Written Record of Analysis by Investigator Craig C. Etcheson”, E3/32, para. 10; “Communist Partyof Kampuchea: Statute”, E3/28, Article 9.
128“Communist Party of Kampuchea: Statute”, E3/28, Article 9.
129“Written Record of Analysis by Investigator Craig C. Etcheson”, E3/32, para. 7; T., 18 May 2009
(Craig ETCHESON), pp. 74-76 (later various changes were made to the number and composition of theZones and autonomous regions).

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mirrored the Zone governing body; those governing were appointed by the body
immediately superior to it, and the appointments were finally approved by the Standing
Committee itself. Each body or organ reported to the body above it, and ultimately to theStanding Committee.130
88. The CPK Statute established criteria for membership and required Party members tobe “self-aware” and to “build a clear, clean and pure personal history […] constantly.”131
It also demanded regular self-assessment sessions at all levels of the Party and among thecadres, exhorting members of the CPK to “take criticism and self-criticism as [the] daily
routine” and to “cling closely to the principles and stances of independence, mastery,self-reliance, and self-determination of fate.”132
89. The CPK directed the Central Committee to implement the Party’s “lines” (orpolicies) throughout the country, instruct the Zone, Sector, and Military Organizations
and the Party organs responsible for various nation-wide departments. It was further
directed to administer and deploy “cadre and party members within the Party as a whole[…] while maintaining a clear and constant grasp on their biographies and political,
ideological and organizational stances and constantly educating and indoctrinating themin terms of politics, ideology and organization.”133
90. All bodies, including the military, were required to report to the Central Committee
through the Standing Committee, and were prohibited from communicating with eachother. As the Accused described the reporting obligations, they were vertical, neverhorizontal.134 According to his testimony, the Accused received instructions from his
superior, SON Sen and later NUON Chea, but did not communicate with any other organof the CPK directly.135 The rule against direct communication between organs of the CPK
applied to the military as well as to the Zones and their subsidiary organs, and was130“Written Record of Analysis by Investigator Craig C. Etcheson”, E3/32, para. 8.
“Communist Party of Kampuchea: Statute”, E3/28, preambular para. 6.
132“Communist Party of Kampuchea: Statute”, E3/28, preambular paras 7 and 8.
133
T., 18 May 2009 (Craig ETCHESON), p. 68; see also “Communist Party of Kampuchea: Statute”,
E3/28, Art. 23.
134
T., 9 June 2009 (Accused), pp. 51-52 (adopting Etcheson’s analysis in “Written Record of Analysis by
Investigator Craig C. Etcheson”, E3/32, para. 56).
135
T., 29 April 2009 (Accused), p. [82]; T., 9 June 2009 (Accused), p. 39.
131

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intended to ensure that the Central Committee of the CPK held and controlled all
information and directed the actions of the whole population, from the most senior
member of the Party to the humblest citizen.136
91. There was no traditional bureaucratic structure operating in the various Ministries,
which were simply areas of responsibility assigned to a Party member.137 The Standing
Committee managed the appointment of senior officials to the Party, government andmilitary. It also appointed leading officials to government posts, and appointed andremoved senior military members of the General Staff.138 Every aspect of life in DK was
managed through these structures, from security (both internal and external), foreign
affairs, energy and commerce to production, farming, political instruction, health care,education and communications.139
2.2.2 The Constitution of Democratic Kampuchea
92. Contemporaneously with the enactment of the CPK Statute, the CPK promulgatedthe “Constitution of Democratic Kampuchea” (“DK Constitution”).140 The DKConstitution provided for a “Kampuchean People’s Representative Assembly” (“KPRA”)
to be elected by secret ballot in direct general elections, an executive body elected by andresponsible to the KPRA, a judicial system staffed by judges selected and appointed by
the KPRA, and a State Praesidium to be selected and appointed every five years by the
KPRA.
93. The members of the KPRA, however, were never elected; the Central Committee
appointed the chairman and other high officials both to it and to the State Praesidium.141
136“Written Record of Analysis by Investigator Craig C. Etcheson”, E3/32, para. 36.
T., 27 May 2009 (Craig ETCHESON), pp. 65-66; see also “Decision of the Central Committee
Regarding a Number of Matters of 30 March 1976”, E3/13, ERN (English) 001828313-001828314;“Meeting of the Standing Committee of 9 October 1975”, E3/14, ERN (English) 00183393-00183408.
138“Written Record of Analysis by Investigator Craig C. Etcheson”, E3/32, para. 18; see also “Decisionof the Central Committee Regarding a Number of Matters of 30 March 1976”, E3/13.
139“Written Record of Analysis by Investigator Craig C. Etcheson”, E3/32, para. 35; see also “Decisionof the Central Committee Regarding a Number of Matters of 30 March 1976”, E3/13, ERN (English)
00182809; “Meeting of the Standing Committee of 9 October 1975”, E3/14.
140“Constitution of Democratic Kampuchea”, E3/27.
141“Decision of the Central Committee Regarding a Number of Matters of 30 March 1976”, E3/13, ERN(English) 00182813.
137

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Plans for elections of members were discussed, but the 250 members of the KPRA werein fact appointed by the upper echelon.142 There is evidence to suggest that the Central
Committee did not intend to establish either of these organs as provided for in the DKConstitution,143and that the DK Constitution was, as the Accused has said, a “façade”.144
2.2.3 The Judiciary
94. In his book, Expert David CHANDLER also states that after the Khmer Rouge
victory of 17 April 1975, the judicial system of Cambodia disappeared.145 There were no
courts, judges, laws or trials in DK. The “people’s courts” stipulated in Article 9 of the
DK Constitution were never established.146 The KPRA met once in April 1976, but its
legislative and policy responsibilities were undertaken by the Standing Committee and nolaws or enforcement mechanisms, including courts which might conduct trials, were everestablished.147 The Chamber accordingly finds that during the DK regime, there was nofunctioning judicial system to provide procedural safeguards for detainees.
2.2.4 The Military
95. The Central Committee also exercised rigid control of the military. The RAK as
required by the CPK Statute became a “mainforce Army belonging to the Centre.”148 For
142

T., 21 May 2009 (Craig ETCHESON), p. 17.
“Minutes of Meeting on Base Work 8 March 1976”, E3/44, ERN (English) 001826308 (“If anyone
asks […] do not speak playfully about the Assembly in front of the people to let them see that we aredeceptive, and our Assembly is worthless.”)
144
T., 9 June 2009 (Accused), p. 25 (“And the DK constitution, as I told Your Honours, it is a façade […]a decoration of their activities”); T., 21 May 2009 (Craig ETCHESON), p. 17 (“The KPRA […] did notmeet regularly, did not pass any laws, and in fact did not appear to have any duties at all other than to serve
as a propaganda façade […] to burnish the reputation of DK among other nations of the world.”)
145“Voices from S-21: Terror and History in Pol Pot’s Secret Prison” (book) by David CHANDLER,
E3/427, p. 120, ERN (English) 00192813.
146
T., 6 August 2009 (David CHANDLER), p. 34 (in Expert CHANDLER’s opinion, the only trace of a
judicial system was the interrogation, normally a precursor to a judicial prosecution, but there was noconstitutionally-based body to deal with the information gathered); T., 19 May 2009 (Craig ETCHESON),p. 48.
147“Written Record of Analysis by Investigator Craig C. Etcheson”, E3/32, paras 149-151. A judicial
committee was approved by the KPRA in April 1976: “Document on Conference I of Legislature I of thePeople’s Representative Assembly of Kampuchea, 11-13 April 1976”, E3/43; T., 19 May 2009 (Craig
ETCHESON), pp. 47-48.
148“Communist Party of Kampuchea: Statute”, E3/28; “Written Record of Analysis by Investigator Craig
C. Etcheson”, E3/32, para. 12.
143

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organizational purposes, the Standing Committee, delegated by the Central Committee,
controlled the three branches of the Military directly.149 A Military Committee wasestablished by the Central Committee and chaired by POL Pot. SON Sen to whom the
Accused reported initially, and NUON Chea who succeeded him as the Accused’s
superior, were both members of the Military Committee.150
96. Zones and Sectors also commanded armed units under a General Staff, and Districts
controlled less formal militia. All had internal security responsibilities which included thepower to arrest and execute personnel within their own area of authority, and all reported
through the level above to the Standing Committee. According to Expert Craig
ETCHESON, the Districts, which maintained “Security offices” and decided which“enemies” would be “disposed of” locally and which sent to higher authorities, played a
key role in the DK regime.151
2.2.5 Relevant CPK policy
2.2.5.1

Secrecy

97. The CPK maintained almost total secrecy concerning its leadership and theimplementation of its policy. Party members were enjoined to “[a]lways and absolutely
strive to maintain Party secrecy with a high stance of revolutionary vigilance.”152
Breaches of secrecy could invoke Party discipline.153
98. The policy of secrecy contributed to the regime’s ability to hide its illegal activities
within Cambodia and from international scrutiny.

149“Communist Party of Kampuchea: Statute”, E3/28, Art. 27: The three categories were: regular army,
sector army and militia.
150
T., 18 May 2009 (Craig ETCHESON), pp. 81-82; T., 28 May 2009 (Craig ETCHESON), p. 61.
151“Written Record of Analysis by Investigator Craig C. Etcheson”, E3/32, paras 9, 89.
152“Communist Party of Kampuchea: Statute”, E3/28, Art. 2: Internal Duties, para. E; see also T., 6
August 2009 (David CHANDLER), pp. 75-76, 97-99; T., 15 June 2009 (Accused), p. 79.
153“Communist Party of Kampuchea: Statute”, E3/28, Art. 4(2).

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2.2.5.2“Smashing” enemies

99. The most critical aspect of CPK policy as it relates to this trial was that of“smashing” enemies, a policy introduced at M-13154 and continued after 17 April 1975.
This policy was sanctioned by Chapter 7, Article 10 of the DK Constitution, under theheading “Justice”, which stated that violations of the laws of the people’s State including
dangerous activities in opposition to the people’s State must be condemned to the highest
degree. According to Expert Craig ETCHESON, POL Pot himself spoke at a conferencein 1976 concerning the need to deal with enemies in the cooperatives through“continuous absolute measures to smash them.”155
100. Described by the Accused as global, the policy stood “for S-21, for the entire party,
the military, the State authority in the bases, and the Police Offices throughout thecountry.”156 Those deemed to be enemies and therefore to be executed, “evolved andbroadened over the period as a result of domestic developments and the internationalarmed conflict between Cambodia and Vietnam.”157 To “smash” meant more than to kill.
As the Accused described it: “[…] to smash […] means to arrest secretly […, tointerrogate] with torture employed, and then [to execute] secretly without the knowledgeof [the detainees’] family members. [It also meant that] the person was not to be released[…] So if he was smashed […] this did not go through the judicial process because there
was no law, no court, the Standing Committee governed all the three main powers.”158
Moreover, to smash was frequently translated as “smash to bits” as in to smash into little
pieces [... it] involved not merely a physical smashing but also a psychological smashing,
and the regime of prisoner treatment inside S-21 was ideally suited to this sort ofdehumanization and debasement of the individual psyche […] [S]mash means something
more than merely kill.”159

154
155
156
157
158
159

T., 18 May 2009 (Accused), p. 15.
“Written Record of Analysis by Investigator Craig C. Etcheson”, E3/32, para. 26, fn. 51.
Amended Closing Order, para. 33 (footnotes omitted).
Amended Closing Order, para. 34
T., 18 May 2009 (Accused), p. 14.
T., 28 May 2009 (Craig ETCHESON), pp. 2-3.

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101. The DK Constitution in its chapter entitled “Justice” also provided that “Other cases[than ‘Dangerous activities’] are subject to constructive re-education in the framework of
the State’s or people’s organizations.”160
2.2.6 30 March 1976 Directive
102. One of the most critical and influential directives to full-rights members of the Party
from the Central Committee was the “Decision of the Central Committee Regarding a
Number of Matters” dated 30 March 1976, a document that the Accused himself had notseen until the investigation preceding this trial.161 In it, those CPK entities entitled to“smash” or kill enemies were listed as follows:
1. The right to smash inside and outside the ranks [...]- If in the base framework, to be decided by the Zone Standing
Committee.
- Surrounding the Center Office, to be decided by the Central OfficeCommittee.
- Independent Sectors, to be decided by the Standing Committee- The Center Military, to be decided by the General Staff.

103. According to Expert Craig ETCHESON, this document, although apparently
emanating from the Central Committee, was likely to have been drafted by the Standing
Committee. Its importance lies in the delegation to the four organs mentioned ofindependent authority to kill.162 Expert David CHANDLER described the 30 March 1976
Decision as “[…] the closest thing we’ve got to […] a smoking gun authorizing thesmashing of enemies of Democratic Kampuchea. Of course, this document was
extremely closely held. There were only six or seven copies made, and only one of thesecopies survived.”163

160“Constitution of Democratic Kampuchea”, E3/27, Art. 10.
“Decision of the Central Committee Regarding a Number of Matters of 30 March 1976”, E3/13.
162
T., 27 May 2009 (Craig ETCHESON), p. 64.
163
T., 6 August 2009 (David CHANDLER), pp. 25-26; “Voices from S-21: Terror and History in Pol
Pot’s Secret Prison” (book) by David CHANDLER, E3/427, p. 51, ERN (English) 00192730.
161

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2.2.7 Dissemination of CPK policy
104. Policy was disseminated by various means including through Directives164 to allorganizational units, by stadium rallies, through a Party Training school where cadres of
the CPK were instructed in the policy of the Party and the government of Democratic
Kampuchea, and by strictly-controlled broadcasts on State radio. There were telegraphed
instructions as well as face-to-face meetings at which policy could be communicated. In
addition, the CPK required regular meetings among the Party members and cadres at alllevels.165
105. The DK periodical “Revolutionary Flag” was an important form of communication
and was widely circulated among full-rights members of the Party who were obliged to
study it. According to Expert Raoul JENNAR, it was believed that all its articles were
written by POL Pot.166 It could contain general instructions concerning agricultural
production as well as directives which resulted in intensified purges of “burrowing
enemies” with emphasis on “new” people from the cities who were deemed to be inferior
to the peasant farmers.167 The communications were based at least to some degree onreports from Zones to Office 870, which usually emphasized their activities in searchingfor enemies often to the detriment of reports on economic and production issues.168 In a
Special Issue of the Revolutionary Flag magazine published in 1977, every level of theParty was exhorted to “adopt the role of leading the army and the people to attack allsuch enemies, sweep them cleanly away, sweep, sweep and sweep again and again
ceaselessly, so that our Party forces are pure, our leading forces at every level and inevery sphere are clean at all times.”169 Surviving documents also demonstrate routine
reporting of executions ordered by Sector leaders.170

164

T., 21 May 2009 (Craig ETCHESON), p. 35.
“Communist Party of Kampuchea: Statute”, E3/28, Art. 18, 20; “Written Record of Analysis by
Investigator Craig C. Etcheson”, E3/32, para. 57.
166“Report by Consultant Raoul M. Jennar”, E3/511, p. 4, ERN (English) 00283026.
167
T., 21 May 2009 (Craig ETCHESON), p. 42.
168
T., 21 May 2009 (Craig ETCHESON), p. 46.
169“‘Revolutionary Flag’, Special Number, May-June 1978”, E3/35, ERN (English) 00185343.
170“Written Record of Analysis by Investigator Craig C. Etcheson”, E3/32, paras 64-68.
165

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106. Reflecting the control of the military as provided in the CPK Statute, there were also
communications concerning the search for internal enemies from military units to theParty Centre. Expert Craig ETCHESON, referring to the letters sent by Division 502
Commander SOU Met to the Accused explaining the reason members of his divisionwere sent to S-21, concluded that they were a good illustration of taking “an absolutestance towards sweeping clean enemies burrowing from within”, as urged in
Revolutionary Flag publications.171
107. “Revolutionary Youth” magazine was another important publication, directed atyounger cadres. It was published monthly by the Propaganda and Education Organisationof the “Youth League” and contained articles urging youth to “have the view of
constantly preparing for war.”172 The thrust of the publication was to encourage young
cadres to be self-reliant, to work hard, and to support the revolution. Special emphasis
was placed on engaging in physical labour and food production, to achieve three tons of
paddies per hectare.173 Cadres were told to “strengthen the stance of attacking the enemy
absolutely, no matter what kind of enemy they are”, to “attack and eliminate all private
property” and to “regularly study the political, ideological, and organizational lines of theParty […] in order to increase political capability.” At the same time, they wereencouraged to “consciously and unconditionally respect the organizational discipline of
the Party at all times.”174108. By 1978, the periodical was expounding the treachery of the Vietnamese andAmericans and urging youth to “concentrate and monitor and continue to actively purge[sweep clean] enemy elements boring holes within in order to screen the units, ministries,
offices, cooperatives, and our entire national society to be clean, good, fresh and171“Written Record of Analysis by Investigator Craig C. Etcheson”, E3/32, para. 123; T., 19 May 2009
(Craig ETCHESON), p. 7; T., 27 May 2009 (Craig ETCHESON), p. 56.
172“CPK magazine ‘Revolutionary Youth,’ issue dated February 1978,” E3/532, p. 10, ERN (English)00278717.
173“Revolutionary Youth’, Issue number 5, May 1976”, E3/136, p. 3, ERN (English) 00357870.
174“CPK magazine ‘Revolutionary Youth,’ issue dated February 1978,” E3/532, p. 10, ERN (English)00278717.

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beautiful” in an echo of the language used in the Special Issue of the Revolutionary Flagmagazine published in 1977.175
2.2.8 CPK security structure
109. A critical element of the DK structure was the Security apparatus. Internal security
was entrusted to SON Sen, who was originally an alternate member of the Standing
Committee. He was promoted to full membership of the Standing Committee during
1978, and became Deputy Prime Minister responsible for National Defence.176 In
addition, he was Chief of Staff of the General Staff of the RAK, thereby holding
important civilian and military posts in DK.177 Described by Expert Raoul JENNAR as“the mentor of the Accused,”178 and the person who trained and protected him before
1975 and after 1979, SON Sen studied in France, was a member of the French
Communist party and participated in the activities of the Marxist circle of Khmer
students. Expert Raoul JENNAR’s opinion was that SON Sen subscribed to the ideologythat he learned during this period which advocated iron discipline and degradation of
those accused by the regime. He further stated that this policy was imposed by him at S21, and continued when NUON Chea assumed responsibility as the Accused’s superior in
1977.179
110. The Santebal security system was established well before the CPK came to
power.180 As parts of Cambodia were captured during the LON Nol regime, beginning in
1971, security centres were opened in the “liberated zones”. M-13 (Section 2.3.2),
situated in Kampong Speu province, was one of these early Santebals. Later they were
established in all parts of the country and to date, 196 centres have been identified by the175“CPK magazine ‘Revolutionary Youth,’ issue dated February 1978,” E3/532, p. 11, ERN (English)00278718.
176
T., 18 May 2009 (Craig ETCHESON), p. 71.
177“Written Record of Analysis by Investigator Craig C. Etcheson”, E3/32, ERN (English) 00146854.
178
T., 14 September 2009 (Raoul JENNAR), p. 57.
179
T., 14 September 2009 (Raoul JENNAR), p. 59.
180“Report by Consultant Raoul M. Jennar”, E3/511, p. 10, ERN (English) 00283032; see also T., 14
September 2009 (Raoul JENNAR), p. 57. According to Expert David CHANDLER, “Santebal” is a Khmer
compound term that combined the words “santisuk” (security) and “nokorbal” (police); see “Voices from
S-21: Terror and History in Pol Pot’s Secret Prison” (book) by David CHANDLER, E3/427, p. 3, ERN(English) 00192682; see also T., 22 April 2009 (Accused), p. 78 (“The word Santebal means those wholooked after the peace, who preserve the peace in the country.”)

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Documentation Centre of Cambodia (“DC-Cam”). Their primary purpose was to“identify and kill internal enemies”, to encourage informing on others and to obtain
confessions.181 Expert Raoul JENNAR contended that these methods were based on
Stalinist policies and that those identified as “enemies” were to be executed or“smashed”, a word used in Lenin’s writings.182
2.3

S-21 and the Role of the Accused111. The Amended Closing Order states, and the Accused has acknowledged, that heserved as Deputy and then Chairman of S-21, a security centre tasked with interrogatingand executing perceived opponents of the CPK from 1975 to 1979.183 Section 2.3
provides a summary of the Accused’s background prior to assuming these positions anddescribes the organisational structure of S-21, including Choeung Ek and S-24, as well as
the role of the Accused at these locations. Section 2.4 describes the offences committed
within S-21. The Chamber’s legal findings regarding these offences and the Accused’s
criminal responsibility for their perpetration follow in Sections 2.5-2.7.
2.3.1 Relevant background information
112. The Accused was born on 17 November 1942 in Kompong Thom Province, into afamily of poor peasants of Chinese origin. He was the eldest of five children and the onlyson. A good pupil, he completed his schooling at the Kompong Thom junior high school,
followed by high school in Siem Reap at the Lycée Sisowath in Phnom Penh, where hepassed his baccalaureate.184 He joined the Khmer Rouge in October 1964. Uponcompletion of his education, he was appointed as a mathematics teacher at the junior highschool in Skoun, Kompong Cham in 1965.185 He began increasingly dedicating himself to181“Report by Consultant Raoul M. Jennar”, E3/511, p. 11, ERN (English) 00283033; T., 14 September
2009 (Raoul JENNAR), p. 79.
182“Report by Consultant Raoul M. Jennar”, E3/511, p. 11, ERN (English) 00283033; T., 14 September
2009 (Raoul JENNAR), p. 87.
183
See generally T., 1 April 2009 (Agreed Facts); “Defence Position on the Facts Contained in the
Closing Order”, E5/11/6.1.
184“Part III: Character Information”, E5/11/6.2, paras. 330, 331, 335, 337.
185
“Part III: Character Information”, E5/11/6.2, para. 338; T., 1 September 2009 (TEP Sem), p. 52; “TheLost Executioner” (book) by Nic DUNLOP, E160.1, pp. 59-60, ERN (English) 00370004-00370005.

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revolutionary activities and left his teaching position to join the underground resistanceon 29 October 1967.186
113. The Accused was arrested on 5 January 1968 and later sentenced to 20 years
imprisonment for breach of State security.187 Following his detention in Tuol Kork andPhnom Penh, he was transferred to the army prison at Prey Sar in May 1968, where hewitnessed, but was not subjected to, illegal executions and torture.188 The Accused
subsequently was inducted as a full rights member of the CPK,189 and chose “Duch” as
his revolutionary name.190
114. Following the 18 March 1970 coup d’état led by General LON Nol against Prince
NORODOM Sihanouk, the Accused was released from prison on 3 April 1970,
whereupon he recommenced his activities on behalf of the Khmer Rouge.191
2.3.2 M-13
115. In July 1971, the Accused was tasked with directing M-13,192 a security centre forinterrogating individuals suspected of being spies or enemies of the CPK.193 As Chairmanof M-13, the Accused first operated under the supervision of VORN Vet from 20 July
1971 until the middle of 1973 and subsequently of SON Sen until January 1975.194
116. M-13 was divided by the Accused into two distinct facilities: M-13A, which was
directly supervised by the Accused, and M-13B, which was managed by his deputy.

186“Defence Position on the Facts Contained in the Closing Order”, E5/11/6.1, para. 4.
T., 1 April 2009 (Agreed Facts), p. 53.
188
T., 6 April 2009 (Accused), pp. 36-43.
189
The Chamber notes that there are some discrepancies regarding the exact date on which he was
inducted; cf. T., 6 April 2009 (Accused), pp. 35-36 and T., 28 April 2009 (Accused), p. 56.
190
T., 6 April 2009 (Accused), pp. 47-49.
191
T., 1 April 2009 (Agreed Facts), p. 53; T., 6 April 2009 (Accused), pp. 18, 36-37.
192
Events relating to M-13 fall outside the temporal jurisdiction of the ECCC. See Article 2 (new) of the
ECCC Law (limiting the jurisdiction of the ECCC to crimes committed “during the period from 17 April
1975 to 6 January 1979”). Given that M-13 was in many ways a precursor to S-21, the Chamber
nonetheless heard testimony regarding the functioning of M-13 and the Accused’s role therein.
193
T., 6 April 2009 (Accused), pp. 20, 65-68; T., 20 April 2009 (CHAN Khan), p. 90.
194“Defence Position on the Facts Contained in the Closing Order”, E5/11/6.1, para. 6.
187

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Individuals sent to M-13A were interrogated, tortured and executed, while those sent to
M-13B could be re-educated and released.195
117. As Chairman of M-13, the Accused was responsible for ensuring that the policy ofinterrogating and “smashing” detainees at M-13A was implemented. He recruited staff,
including youths, amongst the local peasants and provided them with training ininterrogation techniques.196 He supervised the interrogation of M-13A detainees, whichwere frequently carried out by his staff through violence,197 principally via beatings withbamboo branches.198 The confessions of the detainees were then passed on by the
Accused to his superiors, though he suspected that much of the information in them was
fabricated. Once he considered the interrogation of a detainee to be complete, he ordered
their execution.199 Detainees at M-13A also died as a result of the detention conditions,which included a lack of adequate food and medical care.200
118. The Accused’s experience operating M-13 prepared him for his work as Deputy andthen Chairman of S-21.201 In particular, he relied on many of the same techniques andpolicies in his operation of both M-13A and S-21, including the use of torture during
interrogations,202 the recruitment and indoctrination of youths as staff members,203 andthe systematic execution of detainees following the completion of their interrogation.204
Further, many of the Accused’s staff from M-13 accompanied him to S-21, where they
continued to serve as his subordinates.205

195

T., 6 April 2009 (Accused), pp. 22, 70, 75-78; T., 7 April 2009 (Accused), pp. 2-3, 12-13, 23-24, 90,
99-100.
196
T., 7 April 2009 (Accused), pp. 23-27, 49, 64-66, 91-92, 108; T., 8 April 2009 (Accused), pp. 3, 9.
197
T., 6 April 2009 (Accused), p. 22; T., 7 April 2009 (Accused), pp. 18, 21-22; T., 8 April 2009
(François BIZOT), pp. 69-70; T., 20 April 2009 (CHAN Khan), p. 98; T., 21 April 2009 (CHAN Khan), p.
23.
198
T., 7 April 2009 (Accused), p. 63; T., 9 April 2009 (UCH Sorn), p. 67.
199
T., 7 April 2009 (Accused), pp. 21-24, 80-82; T., 8 April 2009 (Accused), pp. 104-106.
200
T., 6 April 2009 (Accused), pp. 22, 78, 89-91.
201“Defence Position on the Facts Contained in the Closing Order”, E5/11/6.1, paras 35, 202; T., 6 April
2009 (Accused), p. 51; T., 28 April 2009 (Accused), pp. 57-59.
202“Defence Position on the Facts Contained in the Closing Order”, E5/11/6.1, paras 35, 202; T., 7 April
2009 (Accused), pp. 65-66; T., 27 April 2009 (Accused), p. 90.
203
T., 27 April 2009 (Accused), pp. 88-90.
204
T., 29 April 2009 (Accused), pp. 76-77.
205
T., 1 April 2009 (Agreed Facts), pp. 58, 63.

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2.3.3 S-21
2.3.3.1

Establishment of S-21

119. The Amended Closing Order states:
20. On 15 August 1975, SON Sen, called DUCH to a meeting at the
Phnom Penh train station together with IN Lorn alias Nat from Division
703 of the RAK. The purpose of the meeting was to plan theestablishment of S21, which for the purpose of this Closing Order
includes the detention centre and surrounding area (Tuol Sleng), as wellas its execution and re-education camp branches on the outskirts ofPhnom Penh, named Choeng Ek and Prey Sâr (S24), respectively. S21
was unique in the network of security centres given its direct link to theCentral Committee and its role in the detention and execution of CPK
cadre.
21. SON Sen appointed Nat as Chairman of S21 and Committee
Secretary, with DUCH as his deputy in charge of the interrogation unit.
Following the meeting, DUCH brought a number of his former M13 staff
to Phnom Penh to join forces with the Division 703 personnel alreadyconducting security operations against former LON Nol regime members
in Phnom Penh. S21 became fully operational in October 1975.206

120. The Accused agreed with these statements, though he disputed that S-21 could be
described as unique.207
121. The Accused remained in Phnom Penh following the 15 August 1975 meeting andcollected documents from the institutions of the former LON Nol government. In October
1975, the Accused, as the Deputy of IN Lorn alias Nat, established and began
supervising the S-21 interrogation unit.208
122. The Accused stated that he was reluctant to accept his initial appointment as Deputyof S-21 and tried instead to apply for work in the Ministry of Industry. When this request
was denied, the Accused did not “dare” contest his appointment because, in his words,

206

Amended Closing Order, paras 20-21 (footnotes omitted).
T., 1 April 2009 (Agreed Facts), pp. 57-58, 63; “Defence Position on the Facts Contained in the
Closing Order”, E5/11/6.1, para. 33.
208
T., 22 April 2009 (Accused), pp. 74-76; T., 28 April 2009 (Accused), pp. 6-8; “Written Record ofInterview of Duch by CIJ on 7 August 2007”, E3/23, ERN (English) 00147518; “Written Record ofInterview of Duch by CIJ on 22 November 2007”, E3/15, ERN (English) 00153567.
207

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and had four children, two of whom were born while he was in charge of S-21.210
2.3.3.2

Initial locations of S-21

123. The Amended Closing Order states:
26. The original S21 complex was located in Phnom Penh in Boeng
Keng Kang 3 sub-district, Chamkar Mon district. The detention andinterrogation facilities were originally located in a block of houses on thecorner of streets 163 and 360. In late November 1975, S21 moved to the
National Police Headquarters on Street 51 (Rue Pasteur) near Central
Market (Phsar Thmei), yet in January 1976, it moved back to its original
location.211

124. The Accused agreed with these statements.212
2.3.3.3

Appointment and role as Deputy of S-21

125. As Deputy of S-21, the Accused was in charge of an interrogation unit comprised ofapproximately 20 former subordinates from M-13 and RAK members from Division703.213 Detainees were brought to the S-21 interrogation unit from the Ta Khmao
Psychiatry Hospital, which IN Lorn alias Nat, and his Division 703 staff had converted
into a detention centre.214
126. The Accused had four main tasks as head of the interrogation unit: (i) collating
documents collected from the institutions of the LON Nol government; (ii) preparing
reports for his superiors based on these documents; (iii) teaching interrogation methods to209

T., 28 April 2009 (Accused), pp. 41-42, 44; “Defence Position on the Facts Contained in the Closing
Order”, E5/11/6.1, para. 35.
210“Part III: Character Information”, E5/11/6.2, paras. 341, 342. The Accused also explained that during
the time of the DK period or in its immediate aftermath, two of his brothers in law were purged, one ofwhom was detained, tortured and executed at S-21. Two of his sisters and six of his nephews and nieces
also died (T., 15 September 2009 (Accused), p. 42).
211
Amended Closing Order, para. 26 (footnotes omitted).
212
T., 1 April 2009 (Agreed Facts), pp. 59-60, 63; T., 22 April 2009 (Accused), pp. 76-77; T., 23 April
2009 (Accused), pp. 14, 21-22; T., 27 April 2009 (Accused), pp. 43-44; T., 28 April 2009 (Accused), pp. 89.
213
T., 23 April 2009 (Accused), pp. 15-17; T., 17 June 2009 (Accused), pp. 67-68.
214
T., 22 April 2009 (Accused), pp. 75-77, 83; T., 27 April 2009 (Accused), pp. 66-69; T., 28 April 2009
(Accused), pp. 11-12, 18-20.

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the staff of the interrogation unit; and (iv) reporting detainees’ confessions to his
superiors.215
127. The Accused acknowledged that, as Deputy, he permitted S-21 interrogators to use
torture.216 The Accused was also aware that, following the completion of theirinterrogation, detainees were taken away and executed.217
2.3.3.4

Appointment and role as Chairman of S-21

128. Paragraph 22 of the Amended Closing Order states:
22. In March 1976, Nat was transferred to the General Staff, and DUCH
replaced him as Chairman and Secretary of S21. DUCH confirmed
KHIM Va[k] alias Hor, a former Division 703 cadre, as his deputy
responsible for the day-to-day operation of the office. However, DUCH
admitted he continued personally to oversee the interrogation of the mostimportant prisoners, and to be ultimately responsible for S21. The third
member of the S21 Committee, and head of S24 was NUN Huy alias
Huy Sré. […].218

129. The Accused agreed with these statements.219
130. The Accused stated that he asked his superior, SON Sen, to select his former teacher
CHHAY Kim Huor to replace IN Lorn alias Nat, as Chairman of S-21. When this request
was denied, the Accused did not further contest his appointment and began serving as
Chairman of S-21 in March 1976. According to the Accused, he was appointed to replace
Nat, because he was “faithful or very honest to” his superiors, while Nat and his Division
703 staff were not considered as trustworthy. The Accused also considered himself to bea better interrogator than Nat by virtue of his experience running M-13.220

215

T., 29 April 2009 (Accused), pp. 40-41; see also T., 22 April 2009 (Accused), pp. 79-80; T., 16 June2009 (Accused), p. 24; T., 17 June 2009 (Accused), pp. 66-67.
216
T., 29 April 2009 (Accused), pp. 18-19; T., 16 June 2009 (Accused), pp. 44-45.
217
T., 22 April 2009 (Accused), p. 85.
218
Amended Closing Order, para. 22 (footnotes omitted).
219
T., 1 April 2009 (Agreed Facts), pp. 58, 63; see also “Defence Position on the Facts Contained in the
Closing Order”, E5/11/6.1, paras 34-37.
220
T., 27 April 2009 (Accused), pp. 91-94; T., 29 April 2009 (Accused), pp. 13, 62; T., 30 April 2009
(Accused), pp. 10-11; “Defence Position on the Facts Contained in the Closing Order”, E5/11/6.1, para. 35.

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131. The Accused indicated that as Chairman he reported to SON Sen from March 1976
until September 1977, when SON Sen was sent to take direct command of the RAK in its
increasing hostilities with Vietnam, and then to NUON Chea, the CPK Deputy
Secretary.221
132. In conjunction with his appointment as Chairman of S-21, the Accused was named
Secretary of the S-21 Committee.222 As Chairman and Secretary, the Accused had fullauthority over all S-21 staff, including the two other members of the S-21 Committee,
KHIM Vak alias Hor, and NUN Huy alias HUY Sre.223 The role of the Accused as theundisputed head of S-21 is confirmed by the Accused’s own admissions, the testimony of
witnesses and Civil Parties, as well as documents put before the Chamber during theproceedings.224
133. The Accused’s Deputy, KHIM Vak alias Hor, was entrusted with managing thedaily operations of S-21, and overseeing the work of the guards and the interrogators

221

T., 1 April 2009 (Agreed Facts), p. 63; “Written Record of Interview of Duch by CIJ on 7 August
2007”, E3/23, ERN (English) 00147520; T., 23 June 2009 (Accused), pp. 48-49; T., 18 May 2009 (Craig
ETCHESON), p. 88.
222
T., 22 April 2009 (Accused), pp. 81-82.
223
T., 15 June 2009 (Accused), p. 66; T., 16 June 2009 (Accused), pp. 42-43, 76; T., 17 June 2009
(Accused), pp. 21-22, 65; T., 23 June 2009 (Accused), pp. 16, 48; T., 20 July 2009 (Accused), p. 64.
224
See T., 1 April 2009 (Agreed Facts), pp. 58-59, 63; T., 28 July 2009 (SUOS Thy), p. 36 (“[F]or theprisoners to be taken out or in there had to be an authorization from Duch who was the Chairman of S-21.
Everything had to be done through him and with his authorization.”); T., 16 July 2009 (HIM Huy), p. 44(“At S-21 the most senior person was Duch. So it was only him who could order for such arrest.”); T., 20
July 2009 (HIM Huy), p. 6 (“When detainees were being transported to Choeung Ek, Duch did not oversee
these but, actually, he was the one who made the decision to have these people taken away to be
executed.”); T., 20 July 2009 (HIM Huy), p. 10 (“At S-21, nobody ordered [the Accused]. It was only him
who ordered other people […] He could do all these things because at that location he was the top-mostleader.”); T., 20 July 2009 (HIM Huy), p. 57 (“At S-21 Duch was the Chairman; next Brother Hor, the oneeyed Hor, and then Huy he was a member and he in charge of the rice fields at Prey Sar.”); T., 6 August
2009 (David CHANDLER), p. 11 (“As the man in charge of S-21, Duch worked hard to control every
aspect of its operations.”); T., 29 June 2009 (VANN Nath), p. 76 (“S-21 was [the Accused’s] location andhe was the boss”); T., 21 July 2009 (PRAK Khan), p. 32 (“As a rule had it, an interrogator was not allowed
to torture anyone unless there was instruction otherwise by Duch to torture the detainees.”); T., 3 August
2009 (SEK Dan), p. 15 (“I would say that would only be Duch who ordered the arrest of those adultmedics.”); T., 11 August 2009 (SAOM Met), p. 21 (“During the meetings, we were told that planning wascoming from Brother Duch through Hor, Huy [Sre] and then to us.”); T., 5 August 2009 (CHEAM Sour), p.
46 (“The law is in the hand of Duch and he issued orders to his subordinates. I did not know from whom
he received his orders. He issued orders to his subordinates to torture or kill the prisoners but I myself
never saw him torture or kill any prisoner. Whenever he issued his order, day or night, it had to be
implemented.”); “Written Record of interview of Duch by CIJ on 29 November 2009”, E3/17, ERN(English) 00154198-00154199.

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within S-21. The Accused used Hor, as well as his own assistants, to issue orders to thestaff of S-21.225 The Accused met frequently with Hor to stay informed of recent
activities and confirmed “that [he (the Accused)] knew clearly on a day to day basis
exactly what was happening at S-21”.226
134. The Accused met less frequently with the third member of the S-21 Committee,
NUN Huy alias HUY Sre, who managed the functioning of S-24.227
2.3.3.4.1

Relocation of S-21

135. The Accused agreed that in April 1976, upon his decision, S-21 detainees weremoved to the premises of the Pohnea Yat Lycée, a high school located between streets
113, 131, 320, and 350, in Phnom Penh. S-21 operated at this location, which is now thesite of the Tuol Sleng Genocide Museum, until 6 January 1979.228 The decision to
relocate, which was approved by the Accused’s superior, SON Sen, was intended tofacilitate the interrogation of detainees and to guard against their escape.229
136. Following its relocation, the secrecy of S-21’s operations became of paramountimportance.230 S-21 staff were not allowed to move freely nor to communicate withothers outside the compound without authorisation.231
137. The existing school buildings of the Pohnea Yat Lycée (referred to at trial as
Buildings A through E) were converted to be used for S-21’s purposes.232 In particular,
detainees were interrogated in Building A, and detained in Buildings B, C and D. Most
225
T., 23 April 2009 (Accused), pp. 30-32; T., 27 April 2009 (Accused), p. 19; T., 29 April 2009
(Accused), p. 71; T., 17 June 2009 (Accused), pp. 22-23; T., 16 July 2009 (HIM Huy), pp. 17, 28; T., 21
July 2009 (PRAK Khan), pp. 5-7, 14-15.
226
T., 17 June 2009 (Accused), p. 23.
227
T., 17 June 2009 (Accused), pp. 21-22; see also Section 2.3.3.7.
228
T., 1 April 2009 (Agreed Facts), pp. 60, 63.
229
T., 23 April 2009 (Accused), p. 22; T., 27 April 2009 (Accused), p. 44; T., 28 April 2009 (Accused), p.
9.
230
T., 6 August 2009 (David CHANDLER), pp. 44-47.
231
T., 3 August 2009 (LACH Mean), p. 101; see also T., 21 July 2009 (PRAK Khan), p. 11; T., 22 July2009 (PRAK Khan), p. 78; T., 4 August 2009 (KHIEU Ches statement read), p. 71; T., 10 August 2009
(CHUUN Phal), p. 60 and T., 6 August 2009 (David CHANDLER), p. 9; see also “Submission of Kaing
Guek Eav’s Comments on the book entitled ‘Voices from S-21 – Terror and History in Pol Pot’s SecretPrison’ by David Chandler”, E108/1.1, ERN (English) 00270554.
232
See generally T., 1 April 2009 (Agreed Facts), pp. 60-61, 63; see further Annex II.

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detainees were kept in common detention cells, in addition to which the Accused ordered
the construction of individual detention cells for more important detainees.233 Building E
was used to store documents, to photograph incoming detainees, and as an artist
workshop for producing CPK propaganda.234 The Accused stated that while he visited
Building E a number of times, he did not visit Buildings B, C and D.235
138. In addition to the buildings located within the walls of the Pohnea Yat Lycée, S-21
used a number of other nearby buildings. These included interrogation houses, execution
sites, mess halls for S-21 staff, a medical centre, staff residences, houses and offices of
the Accused, and a reception hall for detainees. These buildings were located within asecond outer perimeter also protected by armed guards.236
139. Special detainees, including foreigners and former S-21 staff, were also interrogatedand detained in a Special Prison located outside the walls of the Pohnea Yat Lycée. These
interrogations were later moved to Building A. The Accused acknowledged repeatedly
visiting the Special Prison.237
2.3.3.4.2

Overview of S-21 detainees

140. The detainee population at S-21 was comprised of former LON Nol cadres andsoldiers, military personnel of the RAK, numerous DK and CPK high and low-ranking
cadres, their family members and affiliates, women, children, foreign nationals from233

T., 23 April 2009 (Accused), pp. 25-26; T., 28 April 2009 (Accused), pp. 37-38; T., 29 April 2009
(Accused), p. 70; see also T., 29 June 2009 (VANN Nath), p. 73; T., 21 July 2009 (PRAK Khan), p. 43; T.,
1 July 2009 (BOU Meng), pp. 20-21, 26; “Defence Position on the Facts Contained in the Closing Order”,
E5/11/6.1, para. 48
234
T., 23 April 2009 (Accused), pp. 25-26; T., 22 June 2009 (Accused), p. 64; see also T., 29 June 2009
(VANN Nath), p. 74; T., 1 July 2009 (BOU Meng), p. 35.
235
T., 15 June 2009 (Accused), pp. 64-65, 89; see also T., 29 June 2009 (VANN Nath), pp. 74-75, 84; T.,
1 July 2009 (BOU Meng), pp. 36-37.
236
T., 1 April 2009 (Agreed Facts), pp. 62-63; see also “Written Record of Interview of Duch by CIJ on
22 November 2007”, E3/15, ERN (English) 00153567-00153569, 00153575; T., 21 July 2009 (PRAK
Khan), pp. 5, 62.
237
T., 29 April 2009 (Accused), pp. 85-86; T., 15 June 2009 (Accused), pp. 64-65, 89; see also T., 28 July2009 (SUOS Thy), p. 33; T., 21 July 2009 (PRAK Khan), pp. 12-13; T., 22 July 2009 (PRAK Khan), p. 6;
T., 10 August 2009 (SAOM Met), pp. 87-88.

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various countries, particularly Vietnamese soldiers and civilians, as well as a number of
S-21 staff members and their relatives.238
141. The Revised S-21 Prisoner List indicates that no fewer than 12,273 individuals weredetained at S-21.239 This list is a revision of an earlier list relied upon in the Amended
Closing Order which indicated that no fewer than 12,380 individuals were detained at S21.240 The Revised S-21 Prisoner List contains 5,994 entries as men, 1,698 as women and
89 as children.241 5,609 entries are members of the RAK and 4,371 are DK cadres, while
1,751 are neither members of RAK nor DK cadres.242 Furthermore, it describes 876
entries as relatives of somebody else;243 328 as soldiers in the Khmer Republic Army(“KRA”);244 279 as either teachers, professors, students, doctors, lawyers or engineers;245
345 as Vietnamese, of whom 122 are described as Vietnamese soldiers, 144 as
Vietnamese spies while for the remaining 79, who were presumably civilians, nodescription is provided.246 Finally, it also contains 155 entries for former S-21 Staff and
590 for individuals arrested from S-24.247 Certain of the entries on the Revised S-21
Prisoner List contain minimal information.248

238

T., 15 June 2009 (Accused), pp. 7-11, 32; T., 24 June 2009 (Accused), p. 70; T., 27 July 2009 (SUOSThy), pp. 73-78; T., 21 July 2009 (PRAK Khan), pp. 46-47; T., 10 August 2009 (SAOM Met), p. 88.
239“Revised S-21 Prisoner List”, E68.1.
240
See Amended Closing Order, paras 107, 140; “S-21 Prisoner List (1975-1978)”, E3/38 Annex A. This
list was a collation by the Office of the Co-Prosecutors of previous lists compiled by DC-Cam based on theoriginal prisoner lists and execution logs of S-21. The Combined S-21 Prisoner List contained 107 entries
which appeared to be duplicate entries and were thus removed by the Office of the Co-Prosecutors from the
Revised Prisoner List. See “Co-Prosecutors' Rule 92 Motion to disclose analysis of the revised S-21
Prisoner List”, E68, 19 May 2009, paras 3-4.
241
“S-21 Prisoners Identified as Men”, E68.5; “S-21 Prisoners Identified as Women”, E68.6; “S-21
Prisoners Identified as Children”, E68.7.
242“S-21 Prisoners from the RAK”, E68.9; “S-21 Prisoners From DK Government Offices”, E68.10; “S21 Prisoners Not Coming from the RAK or DK Government Offices”, E68.11.
243“S-21 Prisoners Identified as the Relative of Someone Else”, E68.22. The largest entries were for
wives (583), daughters (112) and sons (107), as well as husbands, mothers and fathers.
244“S-21 Prisoners described as former Khmer Republic soldiers”, E68.24.
245“S-21 Prisoners described as teachers, professors, students, doctors, lawyers or engineers”, E68.26.
246“Vietnamese Prisoners Entering S-21”, E68.27; “S-21 Prisoners identified as Vietnamese soldiers”,
E68.28; “S-21 Prisoners described as Vietnamese spies”, E68.29; “S-21 Prisoners identified as
Vietnamese”, E68.30; see also Section 2.5.2.3.
247“S-21 Prisoners who were former S-21 staff”, E68.39; “S-21 Prisoners arrested from S-24 (Prey Sar)”,E68.41. The List contains 47 entries as former S-24 staff, 342 as detainees undergoing tempering at S-24
and 201 for which it is not possible to determine whether they were S-24 staff or detainees undergoing
tempering at S-24; see “S-21 Prisoners identified as former S-24 staff”, E68.42; “S-21 Prisoners who were

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142. Notwithstanding the thoroughness of the administrative record keeping at S-21, theRevised S-21 Prisoner List is incomplete. This is attributable to certain S-21 policies,
such as not registering children who were brought along with their parents, and to the factthat files may have been lost since the abrupt abandonment of S-21 by the Accused andhis staff on 7 January 1979.249 The Revised S-21 Prisoner List does not, for example,
include the names of Civil Party BOU Meng, Witness VANN Nath, Witness NORNG
Chanphal’s mother, MUM Yauv, or of the Accused’s own brother-in-law, all of whomwere detained at S-21.250
143. The Chamber thus considers that while the Revised S-21 Prisoner List establishes
the minimum number of S-21 victims, their numbers are likely to be considerably greaterthan indicated.
2.3.3.4.3

Organisation of S-21

144. The Accused ran S-21 along hierarchical lines and established reporting systems at
all levels to ensure that his orders were carried out immediately and precisely.251 The
following units operated at S-21 under the Accused’s command.
2.3.3.4.3.1 The Documentation Unit
145. The Documentation Unit, also referred to as the “Personnel and Administration
Unit”, was responsible for registering and maintaining records of staff and detainees at S-

previously prisoners at S-24”, E68.43; “S-21 Prisoners coming from S-24 but not clearly identified as
former S-24 staff or S-24 prisoners”, E68.44.
248
See e.g., “S-21 Prisoners Whose Origin Could Not Be Determined”, E68.12.
249
See T., 27 July 2009 (SUOS Thy), pp. 73-74; T., 28 July 2009 (SUOS Thy), pp. 12, 18-23; see also T.,
2 July 2009 (NORNG Chanphal), p. 74; “Written Record of Interview of Duch by CIJ on 30 April 2008”,
E3/378, ERN (English) 00185503; “Defence Position on the Facts Contained in the Closing Order”,
E5/11/6.1, para. 102; “Voices from S-21 – Terror and History in Pol Pot’s Secret Prison” (book) by DavidCHANDLER, E3/427, pp. 35-36, ERN (English) 00192714-00192715.
250“Defence Position on the Facts Contained in the Closing Order”, E5/11/6.1, paras 170, 229; T., 8 July
2009, pp. 1-3; “Written Record of Interview of Duch by CIJ on 30 April 2008”, E3/378, ERN (English)
00185503.
251
T., 1 April 2009 (Agreed Facts), pp. 59, 63; see also T., 23 April 2009 (Accused), pp. 30-35; T., 29
April 2009 (Accused), pp. 54-55; “Written Record of interview of Duch by CIJ on 29 November 2007,
E3/17, ERN (English) 00154198-00154199.

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21. Witness SUOS Thy headed the Documentation Unit and reported to the Accusedthrough KHIM Vak alias Hor.252
146. Detainees were brought to the Documentation Unit handcuffed and blindfolded by
the Special Unit. After the detainees’ names, occupations and place of origin wererecorded, they were taken to the nearby Photography Unit, where they were
photographed, typically with an identification number. Children who were detained alongwith their parents were neither registered nor photographed. Following the taking of theirphotographs, detainees were placed in their respective detention cells by the guards andtheir location was communicated to the Documentation Unit.253
147. Detainees were sent to S-21 at all hours of the day. They typically arrived in groupsof fewer than 20 but were on occasion sent en masse in groups of more than 100,
particularly towards the end of 1978. When such large groups arrived, the detainees werebrought directly, by truck, to the detention buildings where the Documentation Unit
registered their names. Detainees who were former S-21 staff or those who were kept in
the Special Prison were not brought to the Documentation Unit in person. Rather, KHIM
Vak alias Hor communicated their information to the Documentation Unit so that they
could be properly registered. The Documentation Unit also processed Vietnamese
civilians and military personnel detained at S-21. A typewritten list of all newlyregistered S-21 detainees was communicated daily by the Documentation Unit to Hor.254
148. The Documentation Unit also followed a strict protocol when detainees were
removed from S-21 for execution. Witness SUOS Thy stated that “[r]egarding theoutgoing prisoners, when there was an annotation from Duch a list would be given to Hor
and Hor would send the list to me to extract the names and the room numbers and the252

T., 1 April 2009 (Agreed Facts), pp. 58, 63; see also T., 27 April 2009 (Accused), pp. 36-38; T., 28
July 2009 (SUOS Thy), pp. 29-30.
253
T., 27 July 2009 (SUOS Thy), pp. 69-70, 73-74, 81; see also T., 4 August 2009 (NHEM En statementread), pp. 108-110; T., 30 June 2009 (CHUM Mey), pp. 9-10; T., 1 July 2009 (BOU Meng), pp. 11, 20, 45;
T., 2 July 2009 (NORNG Chanphal), p. 74.
254
T., 27 July 2009 (SUOS Thy), pp. 73, 75-80, 85, 100; T., 28 July 2009 (SUOS Thy), p. 8; T., 16 July2009 (HIM Huy), pp. 33-34; T., 4 August 2009 (NHEM En statement read), pp. 114-115; see also “S-21
Prisoner List containing names of Vietnamese prisoners entered on 28 April 1978”, E3/435, ERN (English)
00181718.

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buildings so that the guards would be able to identify them and to take them out.”255
Witness SUOS Thy confirmed that “[o]nly Duch had the authority to annotate anyone tobe smashed, and they used the code name like in Khmer ‘kam kam’ which could betranslated as ‘smash’.”256 The detainees included in the list would be brought to the front
gate, their identities verified once again by the Documentation Unit, and then transported
to Choeung Ek for execution. The Documentation Unit would update the list of detainees
who had been executed by 7 a.m. the following day.257
149. The thoroughness of the documentation kept at S-21 was illustrated by additional
testimony at trial. Expert David CHANDLER stated that the archives of S-21 were likely
the largest in the Santebal apparatus and were, under the leadership of the Accused, kept
in a particularly professional way and in great detail. The archives discovered at S-21
included over 4,000 confessions, hundreds of pages of administrative documents, rostersof detainees, lists of executions, study session documents and self-criticism materials. In
CHANDLER’s opinion, the efficiency with which documents were processed at S-21
reflected both a desire on the part of the Accused to demonstrate the quality of the work
being carried out under his supervision, as well as an attempt to respond to the needs of
the CPK leadership.258 He further added that “[a] prison of this dimensions had noprecedent in Cambodian history that I am aware of, and an interrogation facility of thisthoroughness […] capable of producing such masses of documents, was unprecedented in[the] Cambodian past as well.”259

255

T., 27 July 2009 (SUOS Thy), p. 70.
T., 27 July 2009 (SUOS Thy), pp. 95-96; see also T., 6 August 2009 (David CHANDLER), pp. 102103; T., 28 July 2009 (SUOS Thy), p. 21.
257
T., 27 July 2009 (SUOS Thy), pp. 70, 90-94, 97; T., 28 July 2009 (SUOS Thy), p. 15; see also Section
2.3.3.6.
258
T., 6 August 2009 (David CHANDLER), pp. 23-25, 50, 61-63, 69-70, 100-101; “Voices from S-21 –Terror and History in Pol Pot’s Secret Prison” (book) by David CHANDLER, E3/427, p. 154, ERN(English) 00192847; T., 28 May 2009 (Craig ETCHESON), pp. 20, 91-92.
259
T., 6 August 2009 (David CHANDLER), p. 46.
256

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2.3.3.4.3.2 The Interrogation Unit
150. The Interrogation Unit was tasked with obtaining written confessions fromindividuals detained within the S-21 complex detailing “their traitorous activities”, aswell as the names of other individuals implicated.260
151. The Interrogation Unit was divided into distinct groups, the leader of each of which“was accountable or had to answer” to the Accused.261 These interrogation groups
included the “cold group” (which did not use physical violence), the “hot group” (which
would immediately use physical violence) and the “chewing group” (which used a
mixture of cold and hot methods over an extended period of time). Detainees were often
moved back and forth between these groups until their interrogation was deemedcomplete.262
152. In addition, as Chairman of S-21, the Accused created a separate group, comprisedof wives of trusted S-21 staff, to interrogate female detainees. The Accused also created
and trained a group, headed by HOEUNG Song Huor alias Pon, tasked solely withinterrogating high-ranking detainees at S-21.263
153. The majority of those detained within the S-21 complex were systematicallyinterrogated.264 Interrogators did not choose the detainees they would question but wereassigned to them.265 Detainees were taken from their cells, handcuffed and blindfolded,
and handed over to an interrogator by the guards.266 A single staff member would

260

T., 16 June 2009 (Accused), p. 25; T., 18 May 2009 (Accused), pp. 56-57; T., 27 May 2009 (Accused),p. 52; see also T., 21 July 2009 (PRAK Khan), p. 19; T., 3 August 2009 (LACH Mean), p. 79.
261
T., 29 April 2009 (Accused), p. 67; see also T., 1 April 2009 (Agreed Facts), pp. 85-86; T., 23 April
2009 (Accused), p. 34; T., 21 July 2009 (PRAK Khan), p. 20.
262
T., 1 April 2009 (Agreed Facts), p. 86; T., 23 April 2009 (Accused), p. 34; T., 16 June 2009 (Accused),
pp. 15, 17-20; T., 21 July 2009 (PRAK Khan), pp. 22-23.
263
T., 23 April 2009 (Accused), pp. 34-35; T., 27 April 2009 (Accused), pp. 17, 73; T., 29 April 2009
(Accused), p. 71; T., 15 June 2009 (Accused), p. 24; T., 16 June 2009 (Accused), pp. 17, 49. The womeninterrogators were later executed as a result of internal purges at S-21.
264
See, however, T. 21 July 2009 (PRAK Khan), p. 30 (testifying that 50-60% of detainees were notinterrogated).
265
T., 1 April 2009 (Agreed Facts), pp. 85-86.
266
T., 27 July 2009 (SUOS Thy), pp. 85-86; T., 14 July 2009 (MAM Nai), p. 23; T., 21 July 2009 (PRAK
Khan), pp. 25-26; T., 3 August 2009 (LACH Mean), pp. 83-84; T., 10 August 2009 (CHUUN Phal), p. 27.

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typically conduct the interrogation,267 though Vietnamese detainees were sometimes alsointerrogated with the assistance of an interpreter.268 Interrogators routinely used violence,in addition to “doing politics”,269 to extract the detainees’ written confessions.270
Detainees who could not write dictated their confession to an S-21 staff member who
would transcribe it.271 Detainees were kept in individual cells between interrogation
sessions.272
154. Interrogators would send their reports, along with any confessions obtained, to the
Accused,273 typically via their supervisor.274 In the case of the most important detainees,
these documents were communicated directly to the Accused via his personal
messengers.275 Each detainee’s interrogation would continue, sometimes multiple times a
day over an extended period of time, until the Accused considered his or her confession
to be complete.276
155. Given that detainees were considered guilty by reason of their presence at S-21, therole of interrogators was simply to “validate the Party’s verdict by extracting fullconfessions.”277 Thus, the contents of confessions were in many respects pre-ordained asinterrogators, who were instructed by the Accused to establish links between thedetainees and the CIA, KGB, and/or the Vietnamese, forced detainees into providing

267

T., 16 June 2009 (Accused), p. 79; T., 21 July 2009 (PRAK Khan), p. 24.
T., 23 April 2009 (Accused), p. 34; T., 14 July 2009 (MAM Nai), pp. 22, 26-27; T., 15 July 2009
(MAM Nai), p. 36.
269
T., 6 August 2009 (David CHANDLER), pp. 29-30 (“Doing politics is a more complicated area. Thisis everything but torture. This was questioning, cajoling, getting to know, trying to undermine, trying tobefriend, trying to contradict; all these kind of interrogatory methods; some of them quite professional -professionally done, others done in an extremely amateur fashion as ways of getting a confession without
torture.”)270
T., 27 April 2009 (Accused), p. 64; T., 6 August 2009 (David CHANDLER), p. 35; “Voices from S-21
– Terror and History in Pol Pot’s Secret Prison” (book) by David CHANDLER, E3/427, p. 130, ERN(English) 00192823.
271
T., 16 June 2009 (Accused), p. 25.
272
T., 1 July 2009 (BOU Meng), p. 30.
273
T., 14 July 2009 (MAM Nai), pp. 24-25, 28; T., 1 April 2009 (Agreed Facts), p. 70.
274
T., 3 August 2009 (LACH Mean), p. 85; T., 27 April 2009 (Accused), p. 26.
275
T., 27 April 2009 (Accused), p. 26.
276
T., 1 April 2009 (Agreed Facts), pp. 85-86; T., 16 June 2009 (Accused), p. 28; T., 3 August 2009
(LACH Mean), pp. 85-86.
277“Voices from S-21 – Terror and History in Pol Pot’s Secret Prison” (book) by David CHANDLER,
E3/427, p. 78, ERN (English) 00192771; T., 6 August 2009 (David CHANDLER), p. 27.
268

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scripted answers.278 As stated by Civil Party BOU Meng, who endured such aninterrogation session:
They put me to lie face down and then they started to beat me until they
had enough, and then they kept asking me when I entered CIA and KGB
and who introduced me into the agents. And I did not know how to
respond to them because [… having] never been involved in suchorganization, how could I respond to them that I introduced anyone into
the CIA, even myself. I did not know what CIA was.279

2.3.3.4.3.3 The Defence Unit
156. The Defence Unit, also referred to as the Military Unit, was comprised of two subunits.280
157. The first sub-unit, the Guard Unit, was made up of staff whose duty it was to guard
the detainees within the S-21 complex, deliver them to the interrogators and keep them
alive until their interrogation was completed.281 This sub-unit was typically divided into
four groups with 10 to 12 guards in each group, including youths.282 KHIM Vak alias
Hor and his subordinate, Phal, administered the unit.283
158. The second sub-unit, the Special Unit, was responsible for receiving detainees andescorting them inside the S-21 complex. Detainees were typically arrested and brought to
S-21 by their own units, though some were given a pretext to visit the Special Unit, atwhich point they would be arrested.284 On occasion, the Special Unit was used fortransport or to conduct arrests, including those of Vietnamese detainees, outside theconfines of S-21.285 The Special Unit was also tasked with guarding the outside of the S-

278

T., 6 August 2009 (David CHANDLER), pp. 28-29; “Voices from S-21 – Terror and History in Pol
Pot’s Secret Prison” (book) by David CHANDLER, E3/427, pp. 81-82, 94, ERN (English) 001927740192775, 0192787; see also T., 21 July 2009 (PRAK Khan), p. 18; T., 3 August 2009 (LACH Mean), p. 78.
279
T., 1 July 2009 (BOU Meng), p. 28; see also T., 30 June 2009 (CHUM Mey), p. 24.
280
T., 27 April 2009 (Accused), pp. 18-21.
281
T., 27 April 2009 (Accused), pp. 21, 23.
282
T., 4 August 2009 (KHIEU Ches statement read), pp. 67-68; T., 10 August 2009 (CHUUN Phal), p. 18.
283
T., 1 April 2009 (Agreed Facts), pp. 58, 63; T., 27 April 2009 (Accused), pp. 20-21.
284
T., 15 June 2009 (Accused), pp. 18, 33-34; T., 27 July 2009 (SUOS Thy), pp. 82-83; T., 16 July 2009
(HIM Huy), pp. 12, 23; T., 19 May 2009 (Craig ETCHESON), p. 56.
285
T., 16 July 2009 (HIM Huy), pp. 12, 30, 38; T., 20 July 2009 (HIM Huy), p. 26; T., 11 August 2009
(SAOM Som Ol statement read), pp. 67-68.

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21 complex and intervening in emergencies.286 Moreover, members of the Special Unit
were responsible for transporting detainees to Choeung Ek for execution.287 The Special
Unit was initially headed by Peng, then by Witness HIM Huy.288
2.3.3.4.3.4 Other S-21 Units
159. A number of other units also operated within S-21. These included the Typewriting
Unit (which typed up the detainees’ confessions), the Telephone Unit (for calls to andfrom S-21), the Photography Unit (which took photographs of detainees when they
arrived at S-21), the Medical Unit (which was tasked with treating S-21 staff and keeping
S-21 detainees alive until their confession was completed), the Food Unit (which had akitchen for the S-21 staff and another for the detainees), the Messenger Unit, and theMapping Unit.289
160. A select number of S-21 detainees were also placed in S-21 workshops and tasked
with producing CPK propaganda materials and repairing equipment.290
2.3.3.5

Responsibilities as Chairman of S-21

161. In addition to supervising the above units, the Accused carried out particular tasks
within S-21, the most significant of which are discussed below.
2.3.3.5.1

Recruitment of staff

162. The Accused acknowledged that a number of his S-21 staff were former M-13
subordinates.291 Further, he agreed that, as Chairman of S-21, he continued his former
M-13 practice of recruiting young and impressionable staff to work as his subordinates.
286“Defence Position on the Facts Contained in the Closing Order”, E5/11/6.1, para. 38(d); T., 27 April
2009 (Accused), pp. 24-25; T., 15 June 2009 (Accused), p. 44; T., 17 June 2009 (Accused), pp. 11-12; T.,
21 July 2009 (PRAK Khan), pp. 6-8.
287
T., 16 July 2009 (HIM Huy), pp. 62-69, 95; see also Section 2.3.3.6.
288“Defence Position on the Facts Contained in the Closing Order”, E5/11/6.1, para. 38(d); T., 20 July2009 (HIM Huy), pp. 75-78.
289
T., 1 April 2009 (Agreed Facts), pp. 59, 63; T., 27 April 2009 (Accused), pp. 25-29, 38; T., 28 April
2009 (Accused), p. 40; T., 15 June 2009 (Accused), pp. 39, 93; T., 4 August 2009 (NHEM En statementread), p. 106; T., 3 August 2009 (SEK Dan), pp. 7-8; T., 11 August 2009 (MAKK Sithim statement read),p. 38.
290
T., 17 June 2009 (Accused), pp. 18-19, 49; see also Section 2.4.2.
291
T., 1 April 2009 (Agreed Facts), pp. 58, 63.

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In particular, he sought permission from SON Sen to recruit around 60 poor anduneducated teenagers from Kampong Chhnang Province.292 As stated by the Accused
regarding Witness CHUUN Phal:
He was within the selected criteria of my request and his class origin wasa poor peasant background. Therefore, his education was very low as
evidenced in the Chamber today. Probably he could read a few words,
that’s all. And he fits the criteria for my request from the best. And his
age of 15 or 16 would also fall within the criteria of my selection. I did
not want to select any person who was already trained or educated byanybody. So I needed to select those who I could train psychologicallyand politically.293

2.3.3.5.2

Training of staff

163. Teaching, particularly political training, was one of the most important tasks at S-21
for the Accused, who noted that he alone was responsible for educating those who
worked there. He also taught annually at meetings of S-21 cadres at a training school
established near his home.294 He applied lessons learned at the political school of theGeneral Staff or at the annual Party Congress at compulsory, regular education
meetings,295 attended by the leaders of S-21 units.296
164. Further regular sessions at the training school included practical training ininterrogation methods, increasing from annually in 1977 to monthly and weekly sessions
in 1978.297 The Accused trained his interrogators to use physical and psychologicalviolence but instructed them to keep detainees alive until he considered their confessions
to be complete.298 The Accused stated that interrogation training was a way of avoiding
S-21 staff killing the detainees.299 He acknowledged that his teachings and instructions

292

T., 27 April 2009 (Accused), pp. 35-37, 88-90; T., 21 May 2009 (Craig ETCHESON), p. 23.
T., 10 August 2009 (Accused), p. 64; see also T., 27 April 2009 (Accused), p. 83; T., 21 May 2009
(Craig ETCHESON), p. 23.
294
T., 8 June 2009 (Accused), pp. 46-49; see also T., 8 June 2009 (Accused), pp. 35-36; T., 9 June 2009
(Accused), pp. 23-24.
295
T., 1 April 2009 (Agreed Facts), pp. 67-68; T., 8 June 2009 (Accused), pp. 51-52; T., 30 April 2009
(Accused), p. 30.
296
T., 8 June 2009 (Accused), pp. 39-40.
297
T., 8 June 2009 (Accused), pp. 51-53; T., 16 June 2009 (Accused), p. 24; T., 22 June 2009 (Accused),
pp. 117-118; T., 21 July 2009 (PRAK Khan), pp. 16-18.
298
T., 1 April 2009 (Agreed Facts), pp. 85-86, 90-92; T., 21 July 2009 (PRAK Khan), pp. 17, 66.
299
T., 29 April 2009 (Accused), p. 65; see also T., 21 July 2009 (PRAK Khan), pp. 17, 66.
293

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were reflected in notebooks belonging to S-21 interrogators put before the Chamber.300
These notebooks include instructions such as: “if Angkar instructs not to beat, absolutely
do not beat. If the party orders us to beat, then we beat with mastery, beat them to talk,not to die, to escape, not to become so weak and feeble that they fall ill and we lose
them.”301
165. The consequence of the trainings, as acknowledged by the Accused, was that S-21
staff, including the youths he specifically sought out, were taught to obey orders, to be
cruel, to detain, to interrogate, to torture and to kill. As stated by the Accused, “[t]heychanged their nature. They became from the gentle to become cruel […], very extreme in
the matter […]. They were in the class wrath, class anger […] but the one who made theeducation, it was me, to turn them to be extreme, to be absolute.”302
2.3.3.5.3

Role in arrests

166. The Amended Closing Order states:
51. According to DUCH, no one could be sent to S21 without a decisionof the Party. DUCH explained that for the arrest of members of theCentral Committee, the decision had to be made by its Standing
Committee. For others, DUCH claimed that his superior, NUON Chea,
called the head of the relevant unit for discussion and a joint decision onarrest. DUCH declared, and MÂM Năi assumed, that for people comingfrom other regions, the decision to arrest was always made by the Central
Committee, which contacted the relevant zones, sectors or districts inorder to remove persons implicated by confessions. DUCH specified
that, with the exception of important prisoners, he generally had no graspof the specific rationale behind the imprisonment of persons at S21.
52. Moreover, DUCH insisted “S21 had no right to arrest anyone”,
adding that, in general, he was merely informed by the “upper echelon”
of the arrest of prisoners so as to be ready to receive them. In fact, it did
appear that prisoners were most often brought in by their units.
300

T., 1 April 2009 (Agreed Facts), pp. 87, 89; T., 16 June 2009 (Accused), pp. 24, 37-38; T., 22 June2009 (Accused), pp. 101-102; T., 15 July 2009 (MAM Nai), pp. 19-22; see also “Statistics list of Special
Branch S-21 – Politics, Ideology, Organization”, E3/426; “S-21 Notebook by Tuy and HOEUNG Song
Huor alias Pon dated 12 April 1978 – 17 December 1978”, E3/73; “S-21 Notebook by MAM Nai alias
Chan”, E3/231.
301
See “Statistics list of Special Branch S-21 – Politics, Ideology, Organization”, E3/426, ERN (English)
00182969.
302
T., 27 April 2009 (Accused), pp. 88-90; see also T., 8 June 2009 (Accused), pp. 43-44; T., 16 June2009 (Accused), p. 25; T., 29 April 2009 (Accused), pp. 9-10; T., 17 June 2009 (Accused), p. 91; T., 23
April 2009, p. 33; see also T., 16 July 2009 (HIM Huy), p. 76; T., 21 July 2009 (PRAK Khan), pp. 18-19.

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Nevertheless, there is evidence that S21 personnel did carry out
arrests.303

167. The Accused agreed with these statements.304
168. As a general rule, the echelons above the Accused made decisions regarding whom
to arrest and send to S-21.305 The Accused also occasionally passed down orders to his
S-21 staff to effect arrests outside the confines of S-21.306 The Accused was notified
when arrests were being made and alerted his subordinates to the arrival of detainees.307
169. There is nevertheless evidence indicating that the Accused played a more active rolein initiating arrests and that his views were sought and acted upon by his superiors.
During a meeting attended by SON Sen, in relation to implementing CPK policy, theAccused identified suspects and discussed and cooperated on methods of arrest.308 The
meeting further authorised direct cooperation between S-21 and units targeted for arrests.
The Accused, while conceding his presence at the meeting, disputed that he was anintegral member, entitled to express opinions, claiming instead that his role was simply tonote names and forward them to the meeting for decision.309
170. Further, in letters personally addressed to the Accused, SOU Met (the commander
of Division 502) requested certain actions in relation to detainees dispatched by him to S21.310 The Accused was adamant that there was no direct communication between him
and SOU Met and that this correspondence did not breach the rule prohibiting direct
303

Amended Closing Order, paras 51-52 (footnotes omitted).
T., 1 April 2009 (Agreed Facts), pp. 73-75; see also “Defence Position on the Facts Contained in the
Closing Order”, E5/11/6.1, paras 111-115.
305
T., 28 April 2009 (Accused), pp. 14-15, 33-34; T., 29 April 2009 (Accused), p. 23; T., 15 June 2009
(Accused), pp. 15-16, 18-19; T., 6 August 2009 (David CHANDLER), pp. 101-102.
306
T., 1 April 2009 (Agreed Facts), pp. 74-75; T., 20 July 2009 (HIM Huy), pp. 66, 68; T., 16 July 2009
(HIM Huy), pp. 100-101.
307
T., 15 June 2009 (Accused), p. 19; T., 27 May 2009 (Accused), pp. 39-40; T., 16 July 2009 (HIM
Huy), pp. 23-24.
308
T., 21 May 2009 (Craig ETCHESON), pp. 58-59; “Minutes of the Meeting with Comrade Tal Division
290 and Division 170”, E3/160, ERN (English) 00182792.
309
T., 26 May 2009 (Accused), pp. 52-58.
310“Written record of Analysis by Craig ETCHESON”, E3/32, ERN (English) 00146851; “Sou Met’s
letter to Duch – 2 June 1977”, E3/40; “Sou Met’s letter to Duch – 1 April 1977”, E3/210; “Sou Met’s letterto Duch – 30 May 1977”, E3/211; “Sou Met’s letter to Duch – 1 June 1977”, E3/212; “Sou Met’s letter toDuch – 28 July 1977”, E3/213; “Sou Met’s letter to Duch – 10 August 1977”, E3/214; “Sou Met’s letter toDuch – 3 October 1977”, E3/215; “Sou Met’s letter to Duch – 4 October 1977”, E3/216.
304

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communication between sections or units; all were written at the direction of his
superiors SON Sen or NUON Chea and with their knowledge, as were any responses.
The Accused claimed that SON Sen and later NUON Chea’s names were excluded fromthe correspondence to hide their involvement, but that the communications were either
known to them or directed by them, and were handed to the Accused by his superior. The
explanation given by the Accused that these letters were given to him by SON Sen
personally lacks credibility, as in some letters he is informed by SOU Met that detainees
would be sent to him that evening.311 The fact that he was expecting detainees and readyto receive them implies that the letters came to him personally, and that SOU Met and the
Accused communicated directly with each other regarding arrests, even if this was withthe acquiescence of their respective superiors.
171. In addition, the Accused had significant influence with regard to the arrest of S-21
staff. First, decisions as to whether to send S-21 staff to S-24 for re-education were madeby the S-21 Committee, not by the Accused’s superiors.312 Second, while the ultimate
decision as to whether to arrest a particular S-21 staff member may have rested with his
superiors, the Accused acknowledged that they systematically acted upon his
recommendations. As stated by the Accused, “those people that Comrade Hor and I had
made agreement, I reported to the upper echelon. I cannot recall that there was anyone
who survived, or that the upper echelon decided to not arrest them or not to approve all
the reports that I made to them.”313 The Accused exercised a certain amount of discretionin the matter and indicated that he did not report certain staff members, or reported thembut did not recommend their arrests.314
172. The Accused was also present during the arrest of certain notable detainees,
including KOY Thuon (Minister of Commerce and former Secretary of the NorthernZone), CHHIM Sam-Ok alias Panng (former Secretary of Office 870), NEY Saran alias

311
312
313
314

T., 27 May 2009 (Accused), pp. 35-40.
T., 15 June 2009 (Accused), pp. 31-32.
T., 15 June 2009 (Accused), pp. 19-21.
T., 16 June 2009 (Accused), pp. 68-69.

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MEN San or Ya (Secretary of the Northeastern Zone) and NUN Huy alias HUY Sre(member of the S-21 Committee), some of which took place at his home.315
173. Moreover, as detailed below, the Accused reviewed and passed on to his superiors
the detainees’ confessions and lists of “traitors”, which informed and facilitated furtherarrests.
2.3.3.5.4

Role as regards confessions

174. The Amended Closing Order states:
43. […] In addition to executing prisoners condemned in advance as
traitors, an overriding purpose of S21 was to extract confessions fromprisoners in order to uncover further networks of possible traitors.
DUCH stated that “the content of the confessions was the most importantwork of S21". Confessions seem typically to have taken the form ofpolitical autobiographies by the prisoners in which they were compelled
to denounce themselves and others as traitorously serving theintelligence agencies of foreign powers considered to be enemies of theCambodian revolution. Those intelligence agencies included the UnitedStates CIA, the Soviet KGB and organs of the Vietnamese Communist
Party. These confessions, some many hundreds of pages long, containdetailed descriptions not simply of alleged traitorous activities, but alsoof the structure and operation of all levels of the Party and of alladministrative units. DUCH meticulously read, analysed, annotated andsummarised the majority of these confessions for his superiors. [….]316

175. The Accused agreed with these statements.317
176. Acting on the orders of his superiors, the Accused saw his role as Chairman of S-21
as interrogating detainees in order to trace “traitorous activities during the past andpresent time [… I]n order to facilitate the reading of the confession the prisoner had to
extract the names whom he implicated.”318 To that end, the Accused reviewed thedetainees’ confessions and provided continued instructions to the interrogators until he
315

See, e.g., T., 28 April 2009 (Accused), p. 33; T., 15 June 2009 (Accused), pp. 15-16, 18, 20; T., 22
June 2009 (Accused), p. 31; T., 1 April 2009 (Agreed Facts), p. 76; “Defence Position on the Facts
Contained in the Closing Order”, E5/11/6.1, para. 127; see also T., 19 May 2009 (Craig ETCHESON), p.
56.
316
Amended Closing Order, para. 43 (footnotes omitted).
317
T., 1 April 2009 (Agreed Facts), pp. 69-70.
318
T., 8 June 2009 (Accused), p. 80; see also T., 23 April 2009 (Accused), p. 33; T., 26 May 2009 (Craig
ETCHESON), p. 60

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considered a confession to be complete.319 A confession was improper if it was deemed
insufficiently detailed or it failed to name other “traitors”.320 As stated by the Accused,“[i]f the prisoners did not give satisfactory confessions, then I would annotate on theconfessions that they had to use more torture in order to get the confessions, and I was theone to decide to order the interrogators to torture more.”321 In the case of the mostimportant S-21 detainees, the Accused would await specific instructions from his
superiors as to the extent of mistreatment permissible during the interrogation.322
177. The Accused’s annotations on confessions put before the Chamber are illustrative of
his instructions to interrogators. On the confession of detainee DANH Siyan, the Accused
wrote “interrogate meticulously, serious but moderate torture in order to find the network.
Hit until she stops saying she went to Vietnam with her grandfather to cure his cancer andthe problem of menstruation.”323 His annotation on the confession of detainee UM Soeun
reads, “Not yet confessed. To be tortured”,324 while his annotation on the confession ofdetainee PRUM Samneang states, “[t]his female spoke quite little! No need tosummarize! I do not want you to explain to me, beat her 40 times with the rattan stick andforce her to keep writing. This afternoon, should I be dissatisfied with the confession, I
will request Bong that more interrogations be made and to force her to write again. She
was ill at the moment.”325 Interrogators also used annotations to keep the Accused
appraised of the progress of their interrogations and of the state of the detainees.326

319
T., 16 June 2009 (Accused), pp. 27-28, 41, 54, 85-86; T., 6 August 2009 (David CHANDLER), p. 49;
T., 21 July 2009 (PRAK Khan), pp. 27-29, 63-64.
320
T., 1 April 2009 (Agreed Facts), pp. 90-92.
321
T., 16 June 2009 (Accused), pp. 85-86; see also T., 21 July 2009 (PRAK Khan), p. 32.
322
T., 22 June 2009 (Accused), pp. 18, 22.
323
See “Written Record of Interview of Duch by CIJ on 30 April 2008”, E3/378, ERN (English)
00185500; see also “Excerpt of Confession of DANH Siyan”, E3/368, ERN (English) 00225275; T., 22
June 2009 (Accused), p. 19.
324
See “Written Record of Interview of Duch by CIJ on 30 April 2008”, E3/378, ERN (English)
00185500; see also “Excerpts of Confession of UM Soeun”, E3/24, ERN (English) 00234676.
325“Excerpt of Confession of PRUM Samneang”, E5/2.3, ERN (English) 00283975; see also “Excerpt ofConfession of SAR Phon”, E5/2.1, ERN (English) 00283973; T., 22 June 2009 (Accused), pp. 21-22, 3940; “S-21 Confession of San alias Ya”, E3/372, ERN (English) 00290115.
326
See e.g. “Excerpts of Confession of UM Soeun”, E3/24, ERN (English) 00223146; “Excerpts ofConfession of LI Phel alias LI Phen alias Samrit”, E3/234, ERN (French) 00296036.

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178. Following his review, the Accused was solely responsible for communicating thedetainees’ confessions and the list of those they had implicated to his superiors.327 To
facilitate his superiors’ work, the Accused included his annotations and summaries withthese documents.328 According to Expert David CHANDLER, the Accused worked hard
to be as efficient as he could in this regard, partly to demonstrate his professionalism but
also “to inform the [Party] leadership, in as much detail as possible whether and in what
way its suspicions were justified for certain prisoners and to uncover strings of traitors,
Vietnamese agents, and so forth.”329
179. The Accused was aware that much of the information in the confessions he passedalong to his supervisors was fabricated.330 S-21 confessions were nevertheless used todecide upon the arrest of those denounced as enemy agents and often led to the arrest of
many others implicated as traitors.331 The confessions served the political interest of
those in control of the CPK by justifying arrests, and implicating the networks of thosesent to S-21.332
2.3.3.5.5

Role in executions

180. Every individual detained within the S-21 complex was destined for execution.333
According to Expert David CHANDLER,
the mandate that the defendant had at S-21 was to see to it that everyone
who came into that prison left it for execution; that was its mandate. That
was never withdrawn by a higher authority and therefore I don't think he
327

T., 8 June 2009 (Accused), pp. 81-82; “Defence Position on the Facts Contained in the Closing Order”,
E5/11/6.1, paras 101, 124.
328
T., 18 May 2009 (Accused), p. 51; T., 27 April 2009 (Accused), p. 50; T., 9 June 2009 (Accused), pp.
15-17; see also “Defence Position on the Facts Contained in the Closing Order”, E5/11/6.1, para. 124.
329
T., 6 August 2009 (David CHANDLER), p. 24.
330“Defence Position on the Facts Contained in the Closing Order”, E5/11/6.1, para. 101; T., 28 April
2009 (Accused), p. 64; T., 16 June 2009 (Accused), pp. 28-29, 73.
331
T., 1 April 2009 (Agreed Facts), p. 70; see also T., 23 April 2009 (Accused), p. 33; T., 27 April 2009
(Accused), p. 19; T., 18 May 2009 (Accused), p. 51; T., 15 June 2009 (Accused), p. 30; T., 16 June 2009
(Accused), pp. 48-49; T., 17 June 2009 (Accused), pp. 90-91; T., 6 August 2009 (David CHANDLER), pp.
12-13; T., 28 May 2009 (Craig ETCHESON), pp. 20, 91-92.
332“Defence Position on the Facts Contained in the Closing Order”, E5/11/6.1, para. 98; T., 18 May 2009
(Accused), pp. 53-54; T., 8 June 2009 (Accused), p. 97; “Voices from S-21 – Terror and History in Pol
Pot’s Secret Prison” (book) by David CHANDLER, E3/427, pp. 78, 154, ERN (English) 00192771,
00192847; T., 28 May 2009 (Craig ETCHESON), pp. 28-29, 91-92; T., 6 August 2009 (DavidCHANDLER), pp. 61-63.
333“Defence Position on the Facts Contained in the Closing Order”, E5/11/6.1, para. 60.

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had to seek higher authority to supervise a system in which he had nochoice about who got killed and who didn’t. Everybody got killed, nomatter what they’d done or who they were. […] Everybody who went
there from the smallest child to the highest member of the Communist
Party had the same fate.334

181. Initially, the Accused allowed KHIM Vak alias Hor to manage the timing of thedetainees’ executions. However, following an incident in which a detainee was killed
before he provided a complete confession, the Accused insisted on personallyacknowledging that the interrogation was complete before a detainee could beexecuted.335 As stated by the Accused, whenever detainees were interrogated and theinterrogation was completed, “then [Hor] would come and report to me and I would justgive him a signal that the detainees would be able now to be taken away […].”336 In someinstances, mass executions occurred in which the Accused received and conveyed orders
to execute without interrogations.337 Following the Accused’s assent, Hor would manage
the execution of the S-21 detainees with the help of his subordinates.338
182. The Accused confirmed that documents put before the Chamber include hisannotations ordering the execution of S-21 detainees. On a list containing the names of
17 prisoners (eight teenagers and nine children), the Accused wrote the order “Smashthem to pieces.”339 On a longer list of detainees, the Accused’s annotation reads “smash:
115; keep: 44 persons.” The text below this annotation reads “Comrade Duch proposed toAngkar; Angkar agreed.”340 On a list of 20 female detainees, the Accused wrote
annotations for each of them, ordering: “take away for execution,” “keep forinterrogation” or “medical experiment.”341

334

T., 6 August 2009 (David CHANDLER), pp. 102-103.
T., 17 June 2009 (Accused), pp. 7, 10-11, 22-24, 31, 65-66.
336
T., 17 June 2009 (Accused), p. 31; see also T., 27 July 2009 (SUOS Thy), pp. 95-96.
337
T., 1 April 2009 (Agreed Facts), pp. 94-96.
338
T., 17 June 2009 (Accused), pp. 31, 37; T., 22 June 2009 (Accused), p. 64.
339
T., 22 June 2009 (Accused), pp. 25-26; see also “S-21 Prisoner List of 30 May 1978”, E3/367, ERN(English) 00001890.
340
T., 22 June 2009, pp. 27-28; see also “List of names of prisoners – postponed in January 1977”,
E3/370, ERN (English) 00185356-00185357.
341
T., 22 June 2009 (Accused), pp. 28-30; see also “List of female prisoners”, E3/371, ERN (English)
00181789-00181790.
335

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183. The Accused had the authority to delay the execution of detainees, includingtranslators, mechanics and artists, who possessed valuable skills which could be usedwithin S-21.342
2.3.3.6

Choeung Ek

184. The Amended Closing Order states:
29. Initially, prisoners were executed and buried in and around the S21
complex. At some time between 1976 and mid 1977, partly in order toavoid the risk of epidemic, DUCH decided to relocate the execution site
to Choeng Ek, located approximately 15 km Southwest of Phnom Penhin Kandal province, and now the site of a memorial. The execution site
consisted of a wooden house where prisoners were held until just before
their execution, and a large area that consisted of pits for executions.
However, even after Choeng Ek became the main killing site, certain
executions and burials took place at or near S21.343

185. The Accused agreed with these statements.344
186. The Accused chose to relocate the S-21 execution and burial site to Choeung Ek of
his own authority and informed his superiors of his decision.345 Following theestablishment of Choeung Ek, the Accused’s superiors requested that the execution andburial site be moved to another pre-selected location. The Accused informed his superiors
that he would be unable to do so for fear that others would find the remains of thosealready executed at Choeung Ek. His superiors acquiesced and the execution and burialsite remained at Choeung Ek.346
187. A handful of guards were permanently stationed at Choeung Ek and were
responsible for maintaining the site’s secrecy, digging pits and burying the detainees’
corpses.347

342

T., 17 June 2009 (Accused), pp. 18-19.
Amended Closing Order, para. 29 (footnotes omitted).
344
T., 1 April 2009 (Agreed Facts), pp. 61, 63.
345
T., 28 April 2009 (Accused), p. 9; T. 17 June 2009 (Accused), pp. 29, 40; T., 29 April 2009 (Accused),p. 70.
346
T., 28 April 2009 (Accused), pp. 9-10; T., 30 April 2009 (Accused), p. 7.
347
T., 27 April 2009 (Accused), p. 25; T., 17 June 2009 (Accused), pp. 12, 34, 40-41; T., 16 July 2009
(HIM Huy), pp. 62-69, 95; T., 11 August 2009 (TAY Teng statement read), pp. 53-54.
343

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188. S-21 detainees were transferred to Choeung Ek, handcuffed and blindfolded, intrucks by members of the Special Unit on the pretext that they were being relocated to a
new house. Detainees who were too weak to walk were carried onto the trucks.348 Upon
their arrival at Choeung Ek, detainees were placed in a wooden hut and their names
verified. The detainees were then individually led, still handcuffed and blindfolded, to thefront of a freshly dug pit, where they were summarily executed.349
189. Following the establishment of Choeung Ek, certain individuals detained within the
S-21 complex, including children, former S-21 staff members and important prisoners,
continued to be executed and buried in or near the S-21 complex.350 A number ofindividuals detained at S-24 were also sent directly to Choeung Ek for execution.351
2.3.3.7

S-24

190. The Amended Closing Order states:
30. DUCH recognised that S24 was part of S21. In principle, S24 was
tasked with reforming and re-educating combatants and farming rice tosupply Office S21 and its branches. […]50. Regarding S24, too few records have been found to precisely
determine the total number of people sent there. Nevertheless it appears
that there were several hundred people working at any one time, anestimate which DUCH confirmed. Several witnesses state that men,
women and children were all held there. According to DUCH, there were
two main categories of persons at Prey Sâr: persons whose relatives wereconsidered suspect, and subordinates of arrested cadre. There were alsocombatants from various units and personnel from numerous ministries
and offices around Phnom Penh together with members of their families.
[…]
72. […] [S24] was staffed by S21 cadre and combatants. DUCH statedthat these people were not in “prison” in the same sense as those
imprisoned at Tuol Sleng, a view shared by SAOM Met, who washimself sent to S24 for re-education. DUCH added that detainees and348

T., 27 April 2009 (Accused), p. 18; T., 17 June 2009 (Accused), pp. 39-40; T., 16 July 2009 (HIM
Huy), pp. 12, 62-69, 95; T., 20 July 2009 (HIM Huy), pp. 5-6; T., 28 July 2009 (MEAS Pengkry statementread), pp. 91-93.
349
T., 17 June 2009 (Accused), pp. 43-44, 54; T., 16 July 2009 (HIM Huy), pp. 64-68; T., 11 August 2009
(TAY Teng statement read), pp. 53-55.
350
T., 17 June 2009 (Accused), pp. 14-15; T., 16 July 2009 (HIM Huy), pp. 52-53, 70-71; T., 20 July2009 (HIM Huy), pp. 66-67.
351
T., 1 April 2009 (Agreed Facts), p. 84; T., 24 June 2009 (Accused), pp. 53-54; T., 25 June 2009
(Accused), pp. 9-10.

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staff at Prey Sâr could not move around freely without authorisation, andclaimed this rule also applied to him – a fact which other witnesses
corroborated.352

191. The Accused agreed with these statements.353
192. S-24, also known as Prey Sar, was located outside of Phnom Penh near the
execution site of Choeung Ek in the area of Wat Kdol, in the Dangkao district of Kandal
Province.354 S-24 was used as a re-education camp during IN Lorn alias Nat’s,chairmanship of S-21.355 Following the Accused’s appointment as Chairman of S-21, S24 fell under his authority.356 The Accused stated that while S-24 was under his“complete supervision”, he assigned KHIM Vak alias Hor and NUN Huy alias HUY Sre,
the two other members of the S-21 Committee, to report to him about its daily affairs.357
193. NUN Huy alias HUY Sre worked exclusively at S-24, where he directly oversaw its
day-to-day operations. Following HUY Sre’s arrest in December 1978, Phal was assigned
to directly manage S-24 until its abandonment on 7 January 1979. Throughout, theAccused received regular reports regarding the operations of S-24, including on thedetainees’ work regimes and the identity of those sent from S-24 to S-21 or Choeung Ek.
He also testified that he visited S-24 on four occasions.358
194. According to the Accused, SON Sen made decisions regarding which members of
the armed forces should be sent to S-24, while the upper echelons of the CPK decidedwith respect to members of the civilian units. The S-21 Committee had the authority tosend S-21 staff to S-24 for re-education.359

352

Amended Closing Order, paras 30, 50, 72 (footnotes omitted).
T., 1 April 2009 (Agreed Facts), pp. 61, 63, 71, 73; “Defence Position on the Facts Contained in the
Closing Order”, E5/11/6.1, para. 173.
354
T., 1 April 2009 (Agreed Facts), pp. 62-63.
355
T., 27 April 2009 (Accused), p. 66; T., 24 June 2009 (Accused), pp. 4, 48-49.
356
T., 25 June 2009 (Accused), p. 14; T., 24 June 2009 (Accused), pp. 3-4.
357
T., 28 April 2009 (Accused), pp. 16-18; see also T., 19 May 2009 (Craig ETCHESON), p. 53; T., 12
August 2009 (PHAK Siek statement read), p. 60.
358
T., 23 April 2009 (Accused), p. 32; T., 27 April 2009 (Accused), p. 40; T., 24 June 2009 (Accused),
pp. 27-28, 35; T., 25 June 2009 (Accused), pp. 8, 16-18, 43.
359
T., 15 June 2009 (Accused), pp. 31-32; T., 24 June 2009 (Accused), pp. 38-39, 62-63.
353

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195. Individuals sent to S-24 were first registered near the S-21 complex, on Street 360,
and taken by the Special Unit to S-24, where their biographies and photographs weretaken and they were put to work.360
196. Detainees at S-24 were largely comprised of the relatives or subordinates of people
detained at the S-21 complex, and of combatants and personnel from ministries or fromother public institutions. Men and women were segregated, and children, sometimes
unaccompanied, were also held at S-24. According to the Accused, no Vietnamese orWesterners were detained at S-24.361 While S-24 guards supervised and worked alongside
those detained, they were not themselves detainees, unless arrested and taken formally
into detention for some breach of their duties.362
197. Detainees were known as “elements”,363 and were divided into three groups: thefirst level, known as “better elements”, were subjected to so-called “light tempering”;
level two, or “fair elements”, required only “intermediate” tempering, and level three(“bad elements”), required the harshest tempering.364 The Accused did not dispute any
part of these assertions.365
198. According to Expert David CHANDLER, one of the characteristics that
distinguished S-24 from S-21 was that individuals held at the former had the possibilityof release.366 The Accused stated, however, that S-24 detainees were seldom released andthat all were generally destined for execution regardless of their classification. The
Accused testified that he provided those running S-24 with a standing order to execute its
detainees in accordance with CPK policy. S-24 detainees slated for execution whose360

T., 24 June 2009 (Accused), pp. 14, 39-40; T., 25 June 2009 (Accused), pp. 36-37.
“Defence Position on the Facts Contained in the Closing Order”, E5/11/6.1, para. 109; T., 1 April 2009
(Agreed Facts), pp. 71-73; T., 24 June 2009 (Accused), pp. 9-12, 44; T., 25 June 2009 (Accused), pp. 2, 27;
T., 9 July 2009 (CHIN Met), p. 89; T., 12 August 2009 (BOU Thon), p. 8; T., 12 August 2009 (PHAK Siek
statement read), pp. 57, 62-63; T., 12 August 2009 (KAING Pan statement read), pp. 69-70.
362“Defence Position on the Facts Contained in the Closing Order”, E5/11/6.1, paras 172-173, 181; T., 24
June 2009 (Accused), p. 20; T., 9 July 2009 (CHIN Met), pp. 15-16; “Written Record of Interview of Duchby CIJ on 27 March 2008”, E3/380, ERN (English) 00194548.
363
T., 24 June 2009 (Accused), p. 56 (using the French phrase “composant”).
364
T., 1 April 2009 (Agreed Facts), pp. 82-84; T., 24 June 2009 (Accused), pp. 16, 20-21, 36-37; T., 25
June 2009 (Accused), pp. 30-31, 43-44.
365“Defence Position on the Facts Contained in the Closing Order”, E5/11/6.1, para. 175; T., 1 April 2009
(Agreed Facts), pp. 82-84.
366
T., 6 August 2009 (David CHANDLER), p. 10; see also T., 19 May 2009 (Craig ETCHESON), p. 54.
361

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confessions were needed were first sent to S-21, while those whose confessions were notrequired were sent directly to Choeung Ek for execution. The Accused typically madethis decision, though his subordinates could send detainees directly to Choeung Ek when
their confessions were clearly unnecessary, as was the case with children.367
199. The Accused did not task S-24 staff with interrogating detainees and obtaining theirconfessions. The Accused nonetheless acknowledged that S-24 staff interrogateddetainees, though he claims they did so without his authorisation. The Accused further
agreed that S-24 staff mistreated detainees during these interrogations, including by
shaving their heads, flaying their skin through electrocutions, and beating and whippingthem.368
200. The number of detainees at S-24 cannot be stated with any precision. It is clear fromthe evidence that there were large numbers of staff as well as detainees at S-24, but nosurviving written material has been put before the Chamber to clarify the total number of
those detained over the whole period from 17 April 1975 to 6 January 1979. The
Amended Closing Order states that there were several hundred people working at S-24 atany one time, an estimate with which the Accused agreed.369 A written summary ofstatistics of Armed Forces indicates that in March 1977, there were 2,327 staff at S-21
and 1300 “elements” at S-24. These numbers were confirmed by the Accused.370 Others,
such as Witness PHAK Siek who was herself detained at S-24 for two years spoke of “atotal of 500 to 600 prisoners at Prey Sar, both men and women.”371 Witness TAY Teng,
held at S-24 for two months immediately prior to the fall of Phnom Penh, said that there
were “200 people living there divided into groups of 20-25.”372

367

T., 24 June 2009 (Accused), pp. 15, 18, 30-33, 50-54, 64-67, 71-72; T., 25 June 2009 (Accused), pp. 910, 20-22, 35.
368
T., 24 June 2009 (Accused), pp. 24-25, 40, 43; T., 25 June 2009 (Accused), p. 7; T., 1 April 2009
(Agreed Facts), p. 92.
369
Amended Closing Order, para. 50; “Defence Position on the Facts Contained in the Closing Order”,
E5/11/6.1, para. 110; T., 1 April 2009 (Agreed Facts), p. 71.
370
T., 24 June 2009 (Accused), p. 56; “Joint Statistics of Armed Forces dated 7 April 1977”, E3/146,
ERN (English) 00183956; see also T., 27 May 2009 (Craig ETCHESON), pp. 70-71.
371
T., 12 August 2009 (PHAK Siek statement read), p. 60.
372
T., 11 August 2009 (TAY Teng statement read), p. 52.

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201. Although many detainees and arrested staff of S-24 were transferred to the S-21
complex, by inference for interrogation and execution, an examination of lists ofprisoners compiled at S-21 shows that the numbers of this group are also unclear. The
Accused conceded in his response to the allegation in the Amended Closing Order that“at least” 571 persons were transferred.373 In the Revised S-21 Prisoner List, the total
number of detainees sent to the S-21 complex from S-24 remains unclear (Section
2.3.3.4.2). Detainees sent directly from S-24 to Choeung Ek for execution included
women and children.374
202. The Chamber finds that the isolated and fragmentary documentation placed before it
presents an incomplete picture of the numbers of those held, sent for execution, or
surviving detention at S-24. For these reasons, the Chamber finds that the cumulative
total detained at S-24 was no fewer than 1,300.
2.3.3.8

Abandonment of S-21

203. Following the fall of Phnom Penh (Section 2.1), the Accused and his staff fled S-21
on 7 January 1979, along with the approximately 15 detainees who had been working
within the S-21 complex.375 Staff at S-24 also fled on 7 January 1979, along with theremaining S-24 detainees.376

373

T., 1 April (Agreed Facts), p. 84; see also “Defence Position on the Facts Contained in the Closing
Order”, E5/11/6.1, para. 190.
374
T., 24 June 2009 (Accused), p. 54; T., 1 April 2009 (Agreed Facts), p. 84; “Defence Position on the
Facts Contained in the Closing Order”, E5/11/6.1, para. 189; see also “Written Record of Interview ofDuch by CIJ on 27 March 2008”, E3/380, ERN (English) 00194550.
375
T., 17 June 2009 (Accused), p. 19; T., 25 June 2009 (Accused), p. 24; T., 29 June 2009 (VANN Nath),
p. 52; T., 30 June 2009 (CHUM Mey), p. 28; 1 July 2009 (BOU Meng), pp. 41, 80; T., 27 July 2009
(SUOS Thy), pp. 103-104.
376
T., 24 June 2009 (Accused), p. 55; see also T., 30 June 2009 (Chum MEY), pp. 16-17.

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2.4

Facts relevant to Crimes Against Humanity committed at S-21

204. During the course of the trial, evidence was put before the Chamber regarding thefollowing crimes against humanity committed at S-21. Other facts which specificallyconcern Vietnamese prisoners of war and civilians, as well as Vietnamese sympathisers
detained at S-21, have also been addressed by the Chamber in relation to grave breachesof the Geneva Conventions of 1949 (Section 2.6).
2.4.1 Murder and extermination
205. The Amended Closing Order states:
138. At S21, personnel, both directly and indirectly, caused the death ofa large number of detainees. In many instances prisoners weredeliberately killed through a variety of means. In other instances theperpetrators may not have intended to kill, but were aware that death
could occur as a result of their conduct, for example when they beat or
tortured prisoners.
139. The living conditions imposed at S21 were calculated to bringabout the deaths of detainees. These conditions included but were notlimited to the deprival of access to adequate food and medical care.
140. The unlawful deaths of over 12,380 detainees which occurred as aresult of murder or the imposition of living conditions calculated to bringabout death, constituted the mass killing of members of a civilian
population, evidenced by documentary records, eye-witness accounts andthe discovery of large numbers of bodies in mass graves.377

206. None of the detainees held within the S-21 complex were to be released as they
were all due to be executed in accordance with the CPK policy to “smash” all enemies.378
As stated by the Accused, “the main task of the [S-21] Committee was to detain thepeople who were sent by the Standing Committee in order to interrogate [torture], to get
the confessions, and to smash them.”379

377

Amended Closing Order, paras 138-140.
T., 15 June 2009 (Accused), pp. 68-72; T., 17 June 2009 (Accused), pp. 20-24; T., 23 June 2009
(Accused), pp. 30-33; see also T., 16 July 2009 (HIM Huy), pp. 45-46; T., 21 July 2009 (PRAK Khan), p.
48; T., 6 August 2009 (David CHANDLER), pp. 25-28; T., 27 July 2009 (SUOS Thy), p. 98; T., 28 July2009 (SUOS Thy), p. 48; see also Section 2.2.5.2.
379
T., 17 June 2009 (Accused), p. 21; see also T., 15 June 2009 (Accused), pp. 35-36.
378

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207. In addition to those who were executed, many detainees within the S-21 complex
and at S-24 died as a result of their detention conditions.380 The Accused indicated thatdetainees were deliberately fed starvation rations and given limited medical treatment.381
Detainees also died as a result of interrogation and torture.382
208. The Accused agreed with the general accuracy of the information contained in the
Revised S-21 Prisoner List, but acknowledged that the number of detainees who died orwere executed was greater than the listed number (as amended) of 12,273.383
2.4.1.1

Execution of foreign nationals

209. The Accused confirmed that foreign nationals from various nations including
Vietnam, Thailand, Pakistan, Laos, India, China, France, the United Kingdom, the UnitedStates, New Zealand and Australia were detained within the S-21 complex, where they
died or were executed.384 Although there were allegations that some of these foreign
nationals were burned alive,385 the Chamber is not satisfied that this has been proven to
the required standard.
210. Numerous Vietnamese nationals and individuals believed to be Vietnamese spies
were executed at S-21, particularly from 1977 until January 1979. The Chamber issatisfied that the execution of these individuals, many of whom were captured during thearmed conflict with Vietnam, formed part of the CPK policy to eliminate all of its
enemies.

380

T., 15 June 2009 (Accused), p. 92; T., 21 July 2009 (PRAK Khan), p. 48; T., 3 August 2009 (SEK
Dan), p. 16; T., 28 July 2009 (SUOS Thy), pp. 14, 22.
381
T., 15 June 2009 (Accused), pp. 84-85, 92; T., 27 April 2009 (Accused), p. 23; see also T., 6 August
2009 (David CHANDLER), pp. 87-89; T., 11 August 209 (MAKK Sithim statement read), pp. 38-41; T., 3
August 2009 (SEK Dan), pp. 9-10; T., 28 July 2009 (SUOS Thy), pp. 14, 22; T., 1 July 2009 (BOU Meng),
p. 15.
382
T., 17 June 2009 (Accused), p. 13; T., 28 July 2009 (SUOS Thy), p. 22; T., 11 August 2009 (HAN Iem
statement read), p. 106; see also Section 2.4.4.
383
T., 17 June 2009 (Accused), p. 6; “Written Record of Interview of Duch by CIJ on 30 April 2008”,
E3/378, ERN (English) 00185503; T., 8 July 2009 (Defence), p. 3; see also Section 2.3.3.4.2.
384
T., 15 June 2009 (Accused), pp. 51-55; T., 20 July 2009 (Accused), p. 12; see also “Some files on
foreigners who were detained or killed by the Khmer rouge at S-21”, E52/4.62.
385
Amended Closing Order, para. 122; see also T., 17 June 2009 (Accused), pp. 20, 27-28, 36-37; T., 5
August 2009 (Accused), pp. 52-53; T., 21 July 2009 (PRAK Khan), p. 50; T., 16 July 2009 (HIM Huy), pp.
59-61, 90-91; T., 5 August 2009 (CHEAM Sour), pp. 14-19, 40-42, 50-51.

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2.4.1.2

Execution of high-ranking detainees

211. One of the defining characteristics of S-21 within the Santebal security apparatus
was that it interrogated and executed high ranking CPK cadres, who were typicallydetained in the Special Prison.386 Amongst these high ranking cadres were KOY Thuon(Minister of Commerce and Member of the Central and of the Standing Committees),
CHAN Chakrei (Secretary of Sector 24 in the East Zone), MEN San alias Ya (Secretaryof the Northeast Zone), SUOS Neou alias Chhouk (Vice Chairman of the General Staff),
VORN Vet alias PENH Touk (Member of the Central and of the Standing Committees),
CHHAI Kim Hour alias Hok (Chairman of the Energy Committee), KONG Sophal(Secretary of the Northwest Zone), Pang alias SOUR Sophan (Member of the Central
Committee), as well as IN Lorn alias Nat (former Chairman of S-21).387
2.4.1.3

Execution of S-21 staff

212. A number of S-21 staff died or were executed after being detained for failing toperform their duty or being implicated by detainees’ confessions.388 S-21 staff lived inconstant fear of being detained and executed. A number of former S-21 staff testified
about their colleagues simply disappearing for no apparent reason.389
213. HUY Sre, as well as at least 21 members of the Medical Unit, 48 members of the
Defence Unit and 34 members of the Interrogation Unit, including all of its femaleinterrogators, were amongst the former S-21 staff who were detained and killed.390 Their

386
T., 1 April 2009 (Agreed Facts), pp. 65-66; T., 19 May 2009 (Craig ETCHESON), p. 45; T., 27 May
2009 (Craig ETCHESON), p. 69; T., 15 June 2009 (Accused), pp. 45-46.
387
See, e.g., T., 15 June 2009 (Accused), pp. 15-16, 18, 25, 27-29, 45-46; T., 17 June 2009 (Accused), pp.
76-77, 80-83, 93-95; T., 16 July 2009 (HIM Huy), pp. 29-30, 51; T., 10 August 2009 (SAOM Met), pp. 7686; T., 22 June 2009 (Accused), pp. 30-42; T., 18 August 2009 (Accused), p. 109; “Written Record ofInterview of DUCH by CIJ on 29 November 2007”, E3/17, ERN (English) 00154194.
388
T., 15 June 2009 (Accused), pp. 19-20; T., 16 July 2009 (HIM Huy), pp. 70-73, 93-99; T., 20 July2009 (HIM Huy), pp. 51-53; “S-21 Personnel Imprisoned at S-21”, E68.40; see also T., 11 August 2009
(SAOM Met), pp. 16-17; T., 4 August 2009 (KHIEU Ches statement read), p. 69.
389
T., 27 July 2009 (SUOS Thy), pp. 99-103; T., 28 July 2009 (SUOS Thy), pp. 64-65; T., 11 August
2009 (SAOM Met), pp. 16-17; T., 16 July 2009 (HIM Huy), pp. 97-99; T., 3 August 2009 (LACH Mean),p. 69; T., 4 August 2009 (LACH Mean), p. 52; T., 4 August 2009 (NHEM En statement read), pp. 106-108.
390
T., 24 June 2009 (Accused), pp. 27-29; T., 3 August 2009 (Accused), pp. 23-24; T., 12 August 2009
(KAING Pan), pp. 73-74; T., 4 August 2009 (NHEM En statement read), pp. 107-108, 120-121; T., 21 July2009 (PRAK Khan), pp. 20-21; T., 22 July 2009 (PRAK Khan), pp. 58-59; T., 16 July 2009 (HIM Huy),

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family members were, in some instances, also detained and executed along with them.
Notably, many of the S-21 staff who were executed, including IN Lorn alias Nat, werepreviously attached to Division 703 of the RAK, which was progressively purged
throughout the period of S-21’s operation.391
2.4.1.4

Execution of children

214. Children taken to S-21 were executed within the S-21 complex and at Choeung Ek.
Children of a young age were typically executed immediately after being separated fromtheir parents, though some were kept for a short period of time before being executed.
The Accused indicated that an S-21 staff member known as Peng was responsible for
their executions.392
215. Older children who could care for themselves were sent to S-24. Some of thesechildren were then sent to Choeung Ek for execution. In one recorded instance,
confirmed by the Accused, about 160 children held at S-24 were executed at Choeung Ek
in July 1977, together with 18 adults.393 Witness KAING Pan was the Chairwoman of aunit of 12 detainees at S-24, which cared for about 70 to 80 eight to ten year old children
who had been separated from their parents. She stated that “the children were dumped
there” and that more than 30 disappeared around the time the DK regime fell.394 Witness
BOU Thon observed ten babies at a child care centre at S-24, whose mothers were notpermitted to care for them. Some were sick and some died.395
216. Although the Amended Closing Order alleges that in one instance, the Vietnamese
son of a female prisoner was dropped from a three-story building in the vicinity of thepp. 72-74. For an indicative breakdown per unit of the S-21 staff who were detained, see “S-21 Personnel
Imprisoned at S-21”, E68.40.
391
T., 16 July 2009 (HIM Huy), pp. 41-45, 74-75, 97-99; T., 11 August 2009 (SAOM Met), pp. 16-17; T.,
21 July 2009 (PRAK Khan), pp. 35-36.
392
T., 22 June 2009 (Accused), pp. 12, 26; T., 17 June 2009 (Accused), pp. 14-16, 24-25; T., 24 June2009 (Accused), pp. 54, 67-68; T., 16 July 2009 (HIM Huy), p. 90; T., 20 July 2009 (HIM Huy), p. 59; T.,
21 July 2009 (PRAK Khan), pp. 33-34; T., 28 July 2009 (SUOS Thy), pp. 18-19, 42.
393“Prisoners' names smashed by Brother Huy Sre”, E3/405; T., 24 June 2009 (Accused), pp. 67-68; T.,
25 June 2009 (Accused), pp. 8-10; T., 16 July 2009 (Accused), pp. 92-93; T., 16 July 2009 (HIM Huy), pp.
89-90.
394
T., 12 August 2009 (KAING Pan statement read) pp. 69-73.
395
T., 12 August 2009 (BOU Thon), p. 32.

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S-21 complex,396 the Chamber is not satisfied that this allegation has been proven to therequired standard.
2.4.1.5

Mass executions

217. The mass executions of detainees were ordered by the Party Centre and took place
on several occasions. These executions took place at Choeung Ek over the course of
several days. Due to the large number of victims, the executions were often undertaken
almost immediately after the detainees’ arrival at the S-21 complex, with nointerrogations taking place.397
218. Some of the mass executions were the result of purges within the CPK and RAK.
According to the Accused, in early 1977, large numbers of cadres from the North Zone,
Phnom Penh and the East Zone were executed. Shortly thereafter members of Division
920 of the RAK were executed. In early 1978, cadres from the West Zone were executed,
followed by cadres from the Northwest Zone. One of the largest purges occurred towards
the end of 1978, involving cadres from the East Zone.398
219. In January 1979, almost all remaining detainees within the S-21 complex were
executed following an order by the Accused’s superiors. Very few living detainees
remained within the S-21 complex when Phnom Penh fell on 7 January 1979.399

396

Amended Closing Order, para. 127; see also T., 21 July 2009 (PRAK Khan), pp. 12, 51, 81-82; T., 22
July 2009 (PRAK Khan), pp. 5-6; T., 17 June 2009 (Accused), pp. 24-25; T., 22 July 2009 (Accused), p.
34.
397
T., 15 June 2009 (Accused), pp. 32-33; T., 25 June 2009 (Accused), pp. 8-9; T., 17 June 2009
(Accused), pp. 16-18, 45-49; T., 16 July 2009 (HIM Huy), pp. 62-68, 101-105; T., 20 July 2009 (HIM
Huy), pp. 34, 59-61, 69-70; T., 5 August 2009 (KUNG Phai statement read), p. 91; see also “Statistics ofprisoners interrupted to interrogate in January 1977”, E3/370; “Names of female prisoners, namely fromthe cement factory and K-15”, E3/371.
398
T., 17 June 2009 (Accused), pp. 16-17, 45-50, 83-86; see also T., 6 August 2009 (DavidCHANDLER), pp. 20-22; T., 20 July 2009 (HIM Huy), p. 34; T., 28 July 2009 (SUOS Thy), pp. 22-23.
The Revised S-21 Prisoner List indicates 1,165 entries as having been arrested from the East Zone, 360
entries as having been arrested from the North and Central Zone, as well as 1,211 entries as having beenarrested from the Northwest Zone; see “S-21 Prisoners coming from the East Zone”, E68.45; “S-21
Prisoners coming from the Old North Zone/Central Zone”, E68.47; “S-21 Prisoners coming from theNorthwest Zone”, E68.49.
399
T., 2 July 2009 (Accused), pp. 83-85; T., 21 July 2009 (PRAK Khan), pp. 58-59; T., 22 July 2009
(PRAK Khan), p. 27; T., 28 July 2009 (SUOS Thy), pp. 12-13; T., 2 July 2009 (NORNG Chanphal), pp.
32-40. The last S-21 detainees to be executed were presumably members of the YO8 Unit who had been

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2.4.1.6

Methods of execution

220. Detainees were typically executed by being struck at the base of the neck with ametal bar or another available object. Their throats or stomachs were then generally slit
and their bodies pushed into pits, their blindfold and handcuffs removed, and the pits
covered.400
221. In certain instances, mainly involving the execution of important detainees, theirstomachs were split open and photographs were taken to prove their death to the
Accused’s superiors.401
222. During IN Lorn alias Nat’s chairmanship, detainees were executed by being stabbed
at the base of their throat. Regardless of the method of execution employed, the Accusedindicated that the only thing that mattered was to “make sure that the prisoners weresmashed.”402 Asked by the Chamber whether he taught S-21 staff how to executedetainees, the Accused, citing a Khmer saying, replied: “I do not need to teach crocodiles
how to swim, because the crocodiles already know how to swim.”403
223. The Accused confirmed that at least 100 S-21 detainees died after having theirblood drawn by the S-21 Medical Unit.404 Witness PRAK Khan testified that detainees
would be made to lie on their back on a bed, their handcuffs removed and their legs
shackled. They would be blindfolded while a needle was inserted into their veins andtheir blood drawn until they died.405 The blood was given to the General Staff Hospital

previously detained in connection with the death of Malcom CALDWELL. According to the Accused, they
were killed with a bayonet while shackled to their beds; see T., 23 June 2009 (Accused), pp. 8-9.
400
T., 16 July 2009 (HIM Huy), pp. 54-55; T., 11 August 2009 (TAY Teng statement read), pp. 54-57;
see also T., 16 July 2009 (HIM Huy), pp. 67-68; T., 17 June 2009 (Accused), p. 45.
401
T., 17 June 2009 (Accused), pp. 76-83; T., 22 June 2009 (Accused), p. 110. Photographs were also
taken of detainees who died while in detention at S-21 as proof that they had not been released; see T., 4
August 2009 (NHEM En statement read), p. 111; T., 5 August 2009 (NHEP Hau statement read), pp. 7375.
402
T., 17 June 2009 (Accused), pp. 12, 76.
403
T., 17 June 2009 (Accused), p. 12.
404
T., 16 June 2009 (Accused), pp. 81-83, 95; see also T., 27 July 2009 (SUOS Thy), pp. 86-90; T., 28
July 2009 (SUOS Thy), pp. 36-37.
405
T., 21 July 2009 (PRAK Khan), pp. 36-37.

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for transfusions for RAK soldiers wounded during the conflict with the Vietnamese.406
The Accused initially stated that this practice was initiated by IN Lorn alias Nat, and that
he did not know of it. However, he subsequently clarified that it was initiated upon theorder of SON Sen and that it ceased when all S-21 medics were themselves executed.407
224. The Accused also indicated that surgical operations were performed on detainees
upon the order of SON Sen. The purpose of these operations was to train medical staff. It
is unclear whether the detainees were still alive prior to these operations.408 The Chamberis therefore not satisfied to the required standard that the death of detainees occurred as adirect consequence of surgical operations.
2.4.2 Enslavement
225. The Amended Closing Order states:
135. Certain detainees at S21 and Prey Sar were forced to work. Strict
control and constructive ownership was exercised over all aspects of
their lives by: limiting their movement and physical environment; taking
measures to prevent and deter their escape; and subjecting them to crueltreatment and abuse. As a result of these acts, detainees were stripped of
their free will.409

226. The Amended Closing Order characterised the main purpose of S-24 as to “reformand re-educate combatants and farming rice to supply Office S-21 and its branches.”410
The work was also described as “punitive hard labour” or “tempering.” The Accusedagreed with or did not dispute these descriptions.411 He described the main purpose of thework undertaken by detainees at S-24 as “to have them work hard for the benefit of theParty, for the production of rice. And they had to learn to follow the superior and not to406

T., 16 June 2009 (Accused), pp. 81-83; T., 22 June 2009 (Accused), pp. 112-115; T., 21 July 2009
(PRAK Khan), pp. 36-39.
407
T., 16 June 2009 (Accused), pp. 81, 91-93; T., 17 June 2009 (Accused), p. 27; T., 22 June (Accused),
pp. 112-114; see also T., 27 July 2009 (SUOS Thy), pp. 86-90; 28 July 2009 (SUOS Thy), pp. 36-37; T.,
22 July 2009 (Accused), pp. 37-39.
408
T., 16 June 2009 (Accused), pp. 81, 93-95; T., 22 June 2009 (Accused), pp. 112-115.
409
Amended Closing Order, para. 135.
410
Amended Closing Order, para. 30 (footnotes omitted).
411“Defence Position on the Facts Contained in the Closing Order”, E5/11/6.1, paras 55-57, 172-173.

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be rude or not to oppose the Party in any case whatsoever.”412 The Accused also agreed
that S-24 was a place of enslavement where “elements” performed “forced labour.”413
2.4.2.1

Living and working conditions at S-24

227. The Accused agreed that for the CPK, the term “element” meant detainee, and wasapplied to those who the Party suspected of being enemies. They were then detained andsubjected to forced labour “like [an] animal so that they cannot oppose or fight against
the Party.”414 They were also obliged to participate in self-criticism meetings, also called“tempering.”415
228. Witness BOU Thon was detained at S-24 after the disappearance of her husband.
She was not free to talk to other people (including children) working there, and was too
frightened to criticise or to complain about issues such as the adequacy of food or healthcare. She was obliged to work long hours and was shut in at night. She described her
conditions as being “like a prison without walls.” She had no rights or freedom and was
not permitted to make any decision by herself. She was told where to work, and was
obliged “to abide by their orders”, with “no right to contest or challenge anything.”416
229. Witness MEAS Pengkry, arrested and sent to S-24 in 1977, spoke of the extremely
long working hours and the arduous physical work involved in digging dykes and canals,
and transplanting rice, and noted that the quantity of food for people expected to work
under these conditions was inadequate.417

412

T., 24 June 2009 (Accused), p 17.
T., 1 April 2009 (Agreement on Facts), pp. 82-84; T., 24 June 2009 (Accused), pp. 36-37, 59, 70-71;
T., 25 June 2009 (Accused), pp. 31-32.
414
T., 24 June 2009 (Accused), pp. 56-58.
415
T., 24 June 2009 (Accused), pp. 36-37, 76; T., 8 July 2009 (CHIN Met), p. 86; T., 5 August 2009
(CHEAM Sour), p. 44; see also T., 11 August 2009 (TAY Teng statement read), pp. 47, 52; T., 12 August
2009 (KAING Pan statement read), p. 71; see also T., 15 July 2009 (MAM Nai), p. 59.
416
T., 12 August 2009 (BOU Thon), pp. 3, 13, 33-34; see also T., 12 August 2009 (Accused), pp. 46-47.
417
T., 28 July 2009 (MEAS Pengkry statement read), pp. 93-94; see also T., 12 August 2009 (PHAK Siek
statement read), p. 58; T., 12 August 2009 (KAING Pan statement read), p. 72; T., 1 April 2009 (Agreed
Facts), p. 83.
413

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230. Civil Party CHIN Met was arrested in November 1977 aged 19 years.418 After aperiod of detention she was sent to S-24 for re-education. She described long hours ofwork strictly supervised to ensure that work targets were met. Using hoes and baskets,
she planted rice, built dams and dug canals. In her testimony, she described being forced
to pull a plough with three others, being beaten when she fell and when exhausted, being
warned to “try to do [her] best” or she would disappear.419 This was reinforced when oneof her co-workers became ill and disappeared. She spoke of her hopelessness, causing her
to try to commit suicide, and of her constant fear, exhaustion, weakness due to overwork,
and ill-health, all of which have left her with emotional problems and physical scarring.
She noted that children were also forced to work and that “[i]t was pitiful to look at thosechildren”, the majority of whom died from hunger and sickness.420
231. In general, the Accused agreed that the conditions at S-24 were as described. He
confirmed that detainees could not move freely around S-24 without authorisation, andthat bad elements were shackled at night and were not permitted to live in ordinary
houses. All detainees were strictly guarded day and night, and at work were closely
supervised by the guards who by using force and insult, required them to work very
hard.421 The Accused described the extremely long hours of work which included earlymornings and moonlit nights, as well as the harsh working conditions, agreeing that there
might have been some cases where detainees were used in place of farm animals forploughing.422

418

T., 8 July 2009 (CHIN Met), p. 42; T., 9 July (CHIN Met), p. 15; T., 9 July 2009 (Accused), p. 20;“Annex 2: Biography of Khim [Chin] Met”, E2/80/4.2, ERN (English) 00347466; “Annex 1: Photograph of
Chin Met”, E2/80/4.1, ERN (English) 00343199; “Annex 1: Khmer Identification Card of CHIN Met, 14
February 2001”, E2/80.1, ERN (English) 00322281.
419
T., 8 July 2009 (CHIN Met), pp. 62-63.
420
T., 8 July 2009 (CHIN Met), pp. 54, 60-61, 74, 89-90.
421“Defence Position on the Facts Contained in the Closing Order”, E5/11/6.1, paras 55-57, 172-173, 176,
181-182; T., 1 April 2009 (Agreed Facts), pp. 82-84; see also T., 24 June 2009 (Accused), p. 20; T., 12
August 2009 (BOU Thon), pp. 32-34.
422
T., 24 June 2009 (Accused), pp. 19-20, 42.

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2.4.2.2

Enslavement of detainees within the S-21 complex

232. A very limited number of detainees were forced to work within the S-21 complex.423
They included Witness VANN Nath and Civil Parties BOU Meng and CHUM Mey, allof whom were first arrested, shackled and imprisoned at S-21, before being selected towork within the complex. All described the terrible conditions of their capture anddetention, the physical and mental abuse, torture and ever-present fear. When each wasselected to work “temporarily”,424 they began working in the artists’ or mechanics’
workshops.425 Both BOU Meng and VANN Nath were then able to sleep in or near theirwork area, guarded, locked in, but unshackled.426 By contrast, CHUM Mey was returned
each night to a room where he was shackled alongside other detainees.427
233. All worked very long hours under constant guard, with no freedom of movement.
All knew that if they did not produce work of the standard required, they would bepunished in some unspecified way.428 BOU Meng was threatened that if he did not
produce a good likeness of POL Pot, he would be punished.429 The Accused came toview the artists work regularly, and on one occasion VANN Nath witnessed him forcing
BOU Meng to fight another detainee, IM Chan, with black plastic tubes.430 All were
given better food, and conditions generally were a little better than when they were firstdetained. Nonetheless, under guard, effectively imprisoned and able to observe some of
the treatment of other detainees, all lived in a state of constant terror.431

423

T., 17 June 2009 (Accused), pp. 18-19, 49. The Accused calculated a total of fifteen “people who had
been used temporarily at S-21.”
424
VANN Nath saw the annotation "Keep for use temporarily" against his name on a list containing about
ten names, dated during February 1978; see T., 29 June 2009 (VANN Nath), p. 68.
425
T., 29 June 2009 (VANN Nath), pp. 24-26; T., 1 July 2009 (BOU Meng), pp. 34-35; T., 30 June 2009
(CHUM Mey), p. 14.
426
T., 29 June 2009 (VANN Nath), pp. 34-35; T., 1 July 2009 (BOU Meng), p. 36.
427
T., 30 June 2009 (CHUM Mey), p. 31.
428
T., 29 June 2009 (VANN Nath), p. 26; T., 30 June 2009 (CHUM Mey), pp. 48-49.
429
T., 1 July 2009 (BOU Meng), p. 64; see also T., 29 June 2009 (VANN Nath), pp. 56-58.
430
T., 1 July 2009 (BOU Meng), p. 37; see also T., 29 June 2009 (VANN Nath), pp. 56-57; T., 1 April
2009 (Agreed Facts), pp. 88-89.
431
T., 29 June 2009 (VANN Nath), pp. 66, 97; T., 1 July 2009 (BOU Meng), pp. 35, 84; T., 30 June 2009
(CHUM Mey), pp. 15, 77-78.

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2.4.3 Imprisonment
234. The Amended Closing Order states:
134. There were no reasonable grounds and no legal basis justifying thearrest of the large number of individuals intentionally imprisoned at S21. Moreover, prisoners were clearly deprived of basic rights such as
being informed of the reason for their arrest. There is no evidence thatany legal or judicial system was established or functioned in Cambodia
between 17 April 1975 and 6 January 1979. There were no procedural
safeguards, whether judicial or administrative, whereby detainees could
challenge their imprisonment.432

2.4.3.1

Arbitrary deprivation of liberty

235. The Accused conceded that at least 12,273 men, women and children were detained
at S-21. Some destined for S-21 were arrested by stealth, others simply handcuffed,
blindfolded, processed and taken ultimately to a cell or large room where they would beshackled alongside other prisoners.433
236. S-24 also detained several hundred men, women and children at any one time. Most
S-24 detainees were taken to the site and put to work. Only the bad elements wereshackled and physically restrained. Those free of such physical restraints nonetheless had
no freedom of movement and were guarded day and night.434
237. Detainees were transported from the S-21 complex to Choeung Ek handcuffed andblindfolded. Following their arrival at Choeung Ek, detainees were held briefly in awooden hut and then led individually, or in small groups, to ditches to be executed.435
238. Among the detainees were young children and babies, as well as others who
objectively, could not have been guilty of any offence. Also included were the family

432

Amended Closing Order, para. 134.
“Defence Position on the Facts Contained in the Closing Order”, E5/11/6.1, paras 102, 108; T., 1 April
2009 (Agreed Facts), pp. 75, 77; T., 15 June 2009 (Accused), pp. 15-16, 79-83; T., 16 July 2009 (HIM
Huy), pp. 20-23.
434
T., 1 April 2009 (Agreed Facts), p. 71.
435
T., 17 June 2009 (Accused), pp. 43-44, 54; T., 16 July 2009 (HIM Huy), pp. 65-68; T., 11 August 2009
(TAY Teng statement read), p. 54.
433

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members and subordinates of arrested persons, taken into custody because of theirrelationship to a detained person.436
2.4.3.2

Without due process of law

239. The common feature of all three sites was the absence of a formal process at any
point in the arrest or detention informing the detainee of the reason for detention.437
There was no trial,438 access to legal advice, or ability to challenge the arrest, detention or
ultimate execution. With rare exceptions, none would be released.439 The Accusedconceded that the practice of arrest, detention and execution without recourse to trial was“[…] not compatible with the existence of tribunals and procedural safeguards.”440 The
absence of a legal or judicial procedure that enabled the detainees to challenge theirdetention was an egregious breach of their rights and one that led inevitably tofundamental miscarriages of justice.
2.4.4 Torture, including rape
240. The Amended Closing Order states:
136. The vast majority of persons interrogated at S21 were repeatedly
and intentionally subjected to severe interrogation methods, which often
resulted in serious physical injuries and severe mental harm. Thesemethods were designed for the specific purpose of obtaining information
or extracting confessions from the prisoners. Even if there were arequirement that perpetrators act in an official capacity, it is clear that inthis case they acted in accordance with their defined roles within a clear
command structure.
137. There is evidence of at least one coercive sexual penetrationcommitted at S21, when an interrogator inserted a stick into a female
prisoner’s genitals.441

436

T., 1 April 2009 (Agreed Facts), p. 65.
T., 1 April 2009 (Agreed Facts), p. 77; T., 24 June 2009 (Accused), p. 69; T., 1 July 2009 (BOU
Meng), pp. 11, 17-18.
438
T., 1 July 2009 (BOU Meng) pp. 30-31.
439“Written Record of Interview of Duch by CIJ on 27 March 2008”, E3/380, ERN (English) 00194552;
T., 24 June 2009 (Accused), p. 30.
440
T., 1 April 2009 (Agreed Facts), p. 70; see also T., 6 August 2009 (David CHANDLER), p. 34.
441
Amended Closing Order, paras. 136-137.
437

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2.4.4.1

The use of torture within the S-21 complex
2.4.4.1.1

Torture techniques

241. A variety of torture techniques were applied within the S-21 complex, resulting insevere physical pain and/or mental suffering. The Accused admitted that interrogators
were permitted to use four violent interrogation techniques: beating, electrocution,
asphyxiation with a plastic bag and “water-boarding.”442 The Accused has acknowledgedthat beating was the most common interrogation technique at S-21.443 Beatings which inthe view of the Chamber amounted to torture were of sufficient force or duration or wereaccompanied by other acknowledged torture techniques. Such beatings resulted inbleeding and multiple injuries such as broken limbs, loss of hearing, loss of teeth, scars
and sometimes death.444 Another common interrogation technique was electrocution,445
which caused the detainees to lose consciousness – and in certain cases to become
impotent, delirious or to die.446 Placing a plastic bag over the detainees’ head induced asensation of suffocation and made them believe that they were dying. Death ensued in atleast one instance. The Accused acknowledged that detainees were subjected to waterboarding, which entailed pouring water into their nose to induce a sensation of
suffocation and drowning.447

442

T., 16 June 2009 (Accused), pp. 14, 44; “Written Record of Interview of Duch by the Co-Investigating
Judges on 21 January 2008”, E3/11, ERN (English) 00159557.
443
T., 1 April 2009 (Agreed Facts), p. 90; T., 16 June 2009 (Accused), pp. 14, 54-56; T., 29 April 2009
(Accused), p. 19; see also T., 5 August 2009 (KUNG Phai statement read), p. 91; T., 1 July 2009 (BOU
Meng), p. 12; T., 10 August 2009 (SAOM Met), p. 85.
444
T., 1 July 2009 (BOU Meng), pp. 13, 32-33, 62, 72; T., 30 June 2009 (CHUM Mey), p. 11; “Twophotographs of Civil Party Bou Meng's back (scars), taken after his hearing on 1 July 2009”, E174; T., 16
June 2009 (Accused), p. 67; T., 17 June 2009 (Accused), p. 13.
445
T., 29 April 2009 (Accused), p. 18; T., 16 June 2009 (Accused), pp. 14, 44; T., 5 August 2009 (KUNG
Phai statement read), p. 91; T., 10 August 2009 (SAOM Met), pp. 85, 93-94; “Written Record of Interview
of Prak Khan”, E3/413, ERN (English) 0161554.
446
T., 30 June 2009 (CHUM Mey), p. 27; T., 1 July 2009 (BOU Meng), pp. 30, 73; T., 22 July 2009
(PRAK Khan), p. 40; T., 11 August 2009 (SAOM Met), p. 25; T., 8 June 2009 (Accused), p. 109; T., 16
June 2009 (Accused), p. 59; T., 3 August 2009 (Accused), pp. 50-51; annotations on the “Confession of KE
Kim Huot”, E3/369, ERN (English) 00183290; see also “Voices from S-21 – Terror and History in Pol
Pot’s Secret Prison” (book) by David CHANDLER, E3/427, p. 132, ERN (English) 00192825.
447
T., 16 June 2009 (Accused), pp. 14, 22 27, 44-45, 52-54; T., 17 June 2009 (Accused), p. 13; “Defence
Position on the Facts contained in the Closing Order”, E5/11/6.1, para. 218; T., 10 August 2009 (SAOM
Met), pp. 93-94; “Written Record of Interview of PRAK Khan”, E3/413, ERN (English) 0161554.

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242. In addition to the four authorised methods listed above, the Accused has
acknowledged that a number of additional techniques were carried out by interrogators.
Pliers were used to remove finger and toe nails, needles were inserted under them, andnails were punctured.448 According to the Accused, these practices were a violation of his
rules relating to the use of torture and he requested that the interrogators cease when hebecame aware of them.449 Cigarette burns were also used, although this was not directedor authorised by the Accused.450
243. The practice of forcing detainees to pay homage to images of dogs, one with thehead of Ho Chi Minh and the other with the head of Lyndon B. Johnson, caused thevictims extreme humiliation and severe emotional distress.451 The Accused has admitted
that he encouraged this practice, which he considered very effective in obtaining
confessions.452 This technique caused severe mental suffering in the Cambodian culturalcontext.453 The Accused believes that detainees were also made to kneel down and pay
homage to objects such as tables and chairs, but opined that this was less humiliating andsevere.454
244. The Accused has acknowledged that force-feeding of excrement was used as aninterrogation technique.455 He stated however that such treatment was a violation of his
rules relating to the use of torture, although he failed to punish the interrogator who

448

T., 30 June 2009 (CHUM Mey), pp. 25-27, 68; T., 16 June 2009 (Accused), pp. 77-79; T., 22 June2009 (Accused), pp. 86-87; T., 21 July 2009 (PRAK Khan), pp. 67-68; T., 10 August 2009 (SAOM Met),
p. 93-94; T., 28 May 2009 (Craig ETCHESON), pp. 6-7; “Written Record of Interview of PRAK Khan”,
E3/413, ERN (English) 0161554.
449
T., 16 June 2009 (Accused), pp. 77-78; T., 22 June 2009 (Accused), p. 88.
450
T., 22 June 2009 (Accused), pp. 87, 105.
451
T., 16 June 2009 (Accused), pp. 58-59; T., 22 June 2009 (Accused), p. 88; T., 1 July 2009 (BOU
Meng), p. 37; T., 21 July 2009 (PRAK Khan), pp. 70-71; “S-21 Notebook by Tuy and HOEUNG Song
Huor alias Pon dated 12 April 1978 – 17 December 1978”, E3/73, ERN (English) 00184496; “Voices from
S-21 – Terror and History in Pol Pot’s Secret Prison”, (book) by David CHANDLER, E3/427, pp. 132-134,
ERN (English) 00192825-00192827.
452
T., 1 April 2009 (Agreed Facts), p. 90; T., 22 June 2009 (Accused), p. 88.
453
See T., 25 August 2009 (CHHIM Sotheara), pp. 8-9, 30, 45, 48.
454
T., 16 June 2009 (Accused), pp. 87-88.
455
T., 16 June 2009 (Accused), p. 87; “Defence Position on the Facts Contained in the Closing Order”,
E5/11/6.1, para. 222.

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applied it to his former teacher KE Kim Huot alias Sot.456 Certain detainees were also
forced to drink urine.457
245. Additional methods were used to threaten detainees, to break their resistance and tokeep them in a state of constant fear in order to facilitate their confessions. The Accusedand interrogators used “propaganda”, bluff and threats to scare detainees and induce theminto confessing.458 They were treated as enemies and addressed in a contemptuous
manner.459 Interrogators were also taught to exploit the fears of detainees and makethreats concerning family members.460 Techniques to scare detainees also included thedisplay of torture instruments such as clamps, sticks, knives and axes in the interrogation
room.461
246. The Amended Closing Order also alleges that there is evidence of at least one
incident of rape at S-21.462 The Accused acknowledged that an S-21 staff member
inserted a stick into the vagina of a detainee during an interrogation.463 He stated that hehad a strong emotional reaction to this incident, but that he did not want to show hisanger to his superiors and subordinates. He further stated that he did not know that thisconstituted a crime and treated the incident as any other violation of the regulation of
torture. He reported the incident to his superior but did not get any response.464 As aresult, he reassigned the interrogator, who was no longer allowed to interrogate female
detainees, and established a female interrogators team.465 No sanction was otherwise456

T., 22 June 2009 (Accused), pp. 21, 88; T., 16 June 2009 (Accused), p. 87; see also “Confession of KE
Kim Huot”, E3/369, ERN (English) 00183285, 00183288-00183289.
457
T., 16 June 2009 (Accused), p. 87.
458
See “Statistics list of Santebal S-21”, E3/426, ERN (English) 00225392-00225393, 00225403.
459
T., 16 June 2009 (Accused), p. 88; T., 15 June 2009 (Accused), p. 86; T., 21 July 2009 (PRAK Khan),p. 70.
460“S-21 Notebook by Tuy and HOEUNG Song Huor alias Pon dated 12 April 1978 – 17 December
1978”, E3/73, ERN (English) 00184511; T., 22 June 2009 (Accused), pp. 36-37.
461
T., 16 June 2009 (Accused), p. 22; T., 21 July 2009 (PRAK Khan), p. 73.
462
Amended Closing Order, para. 137.
463
“Defence Position on the Facts Contained in the Closing Order”, E5/11/6.1, para. 231; T., 16 June 2009
(Accused), pp. 78-79; “Written Record of Interview of PRAK Khan”, E3/413, ERN (English) 0161555.
464
T., 16 June 2009 (Accused), pp. 68-69, 79; T., 22 June 2009 (Accused), p. 42.
465“Defence Position on the Facts Contained in the Closing Order”, E5/11/6.1, para. 231; T., 23 April
2009 (Accused), p. 35; T., 16 June 2009 (Accused), pp. 17, 79-80; T., 22 June 2009 (Accused), p. 42; T.,
21 July 2009 (PRAK Khan), pp. 20-21.

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taken against the perpetrator.466 The Chamber is satisfied that this allegation of rape has
been proved to the required standard.
247. Although the Accused stated that there was only one incident of rape at S-21,467
several witnesses spoke about what appears to be a separate incident where Touch, aninterrogator, raped a female detainee.468 Touch was subsequently arrested and detained at
S-21.469 However, the Chamber is not satisfied that this allegation has been proved to therequired standard.
248. The Accused acknowledged that detainees at S-24 were also subject to acts ofviolence during interrogations, though these were carried out without his authorisation.
2.4.4.1.2

Specific incidents of torture249. Civil Party BOU Meng testified that he was tortured twice a day over two
consecutive weeks. He was shackled by the ankles and forced to lie face-down on the
ground, whilst derogatory language was used against him. His interrogators showed him
the torture equipment and asked him to select the device he preferred. They took turns
beating him on the back with a rattan stick and a whip, causing him to bleed all over thefloor. He was also electrocuted, causing him to lose consciousness. BOU Meng still has
scars as a result of these beatings. Every time he was beaten, he was asked questions
regarding his involvement with the CIA and the KGB. The Accused did not dispute thesefacts.470
250. Civil Party CHUM Mey stated that he was interrogated for twelve days and nights.
During these interrogations, he was shackled and insulted. He was repeatedly beaten and466

T., 16 June 2009 (Accused), pp. 68-69; T., 22 June 2009 (Accused), p. 42; “Written Record ofinterview of Duch by CIJ on 30 April 2008”, E3/378, ERN (English) 00185502.
467
T., 16 June 2009 (Accused), pp. 78-79; “Defence Position on the Facts Contained in the Closing
Order”, E5/11/6.1, para. 231.
468
T., 22 July 2009 (PRAK Khan), pp. 43-44; T., 21 July 2009 (PRAK Khan), pp. 79-80; T., 4 August
2009 (LACH Mean), pp. 40-41.
469
T., 22 July 2009 (PRAK Khan), p. 43; T., 21 July 2009 (PRAK Khan), p. 79; T., 4 August 2009
(LACH Mean), p. 41.
470
T., 1 April 2009 (Agreed Facts), p. 91; T., 16 June 2009 (Accused), p. 86; T., 1 July 2009 (BOU
Meng), pp. 12-13, 27-30, 32, 73-77; see also “Two photographs of Civil Party BOU Meng's back (scars),
taken after his hearing on 1 July 2009”, E174.

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lashed with sticks, and broke one of his fingers trying to defend himself against the
beatings. When he persisted in denying any involvement with the CIA or KGB, aninterrogator pulled out toenails from both his feet, causing him to tremble in pain.
Afterwards, he could hardly walk. He was also electrocuted on two occasions and fell
unconscious each time. The interrogation only stopped after he “confessed” to having
joined both the CIA and the KGB. The Accused has acknowledged these facts.471 The
Chamber finds that the allegations of torture by BOU Meng and CHUM Mey have been
proved to the required standard.
251. The Accused has denied the use of techniques such as plunging detainees in a water
jar or suspending them by their hands tied behind their back,472 as shown in one of
Witness VANN Nath’s paintings.473 The Chamber finds however that the testimony ofWitness VANN Nath, who saw and painted this scene, is consistent and reliable andmeets the standard required to prove torture.
2.4.4.2

Purpose of torture

252. According to the Accused, the purpose of torture at S-21 was
the infliction of suffering, of additional suffering, to the victims to force
them to confess. Therefore it was both the force physically, the physicalpain, and with the scolding, with the verbal abuse, it contributed to thepsychological suffering upon the confessors so that they would give in toconfession.474

253. Similarly, the interrogator’s notebook entitled “Statistics List” states that “[t]heobjective of torturing is to get their answers; it is not done for fun. Therefore, we must
make them feel pain so that they will respond quickly. Another objective is to make them

471

T., 1 April 2009 (Agreed Facts), p. 91; T., 16 June 2009 (Accused), p. 86; T., 30 June 2009 (CHUM
Mey), pp. 11, 13-14, 22-27 29, 67-68, 73.
472
T., 16 June 2009 (Accused), pp. 89-90, “Defence Position on the Facts Contained in the Closing
Order”, E5/11/6.1, paras 225, 227.
473
“Painting of S-21 prisoner Vann Nath depicting torture in the yard of Office S-21”, E3/260; T., 29 June2009 (VANN Nath), pp. 33-34, 47 (“painting number 12”).
474
T., 16 June 2009 (Accused), p. 51.

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afraid.”475 This is confirmed by the so-called Pon-Tuy notebook, which advises thatbeatings are meant to inflict pain.476
254. The use of these various interrogation techniques, whether resulting in physical pain
or mental suffering, were designed to obtain confessions,477 which detailed the detainee’s
biography, the nature of the crimes and “traitorous” activities, his or her personal
involvement in them, as well as network of “traitors”.478 The interrogation would end
only when the confession was deemed adequate and complete. The confessions were thenexamined by the upper echelon and used for two main purposes: first to justify thedecision to arrest the particular detainee who wrote the confession, and second to obtain
information to investigate and eventually arrest the people implicated in the confessions.
255. A further purpose of torture at S-21 was punishment.479 Torture at S-24 was also
used to punish prisoners who failed to follow discipline or did not work according to thestandards imposed, to prevent detainees from rebelling or escaping, and during the more
limited interrogations carried out at S-24.480
2.4.4.3

Official capacity of the perpetrators

256. S-21 and S-24 staff, including interrogators, acted under a clearly-establishedhierarchy, under the orders or delegated authority of the Accused, who himself acted on
the orders of the Standing Committee. Given their position in the State apparatus, theChamber concludes that the S-21 interrogators and S-24 staff who perpetrated acts of
torture acted in an official capacity.

475“Statistics list of Santebal S-21”, E3/426, ERN (English) 00225393.
“S-21 Notebook by Tuy and HOEUNG Song Huor alias Pon dated 12 April 1978 – 17 December
1978”, E3/73, ERN (English) 00184496.
477
T., 16 June 2009 (Accused), p. 55; T., 3 August 2009 (LACH Mean), p. 90; “Written Record ofInterview of PRAK Khan”, E3/413, ERN (English) 0161559; “Statistics list of Santebal S-21”, E3/426,
ERN (English) 00225406.
478
T., 16 June 2009 (Accused), pp. 25, 48; T., 21 July 2009 (PRAK Khan), pp. 19, 27, 64-66; T., 29 June2009 (VANN Nath), pp.17-18; “Statistics list of Santebal S-21”, E3/426, ERN (English) 00225380.
479
T., 29 June 2009 (VANN Nath), pp. 33-34, 47, 66 with reference to “Painting of S-21 prisoner VannNath depicting torture in the yard of Office S-21” (“Painting number 12”), E3/260; T., 15 June 2009
(Accused), p. 92.
480
T., 24 June (Accused), pp. 24-43; T., 25 June (Accused), pp. 5-7; T., 1 April 2009 (Agreed Facts), p.
92; T., 8 July 2009 (CHIN Met), p. 73.
476

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2.4.5 Other inhumane acts
257. The Amended Closing Order states:
143. Prisoners at S-21 suffered serious bodily and mental harm frominhumane acts which included deliberate deprivation of adequate food,sanitation and medical treatment. Prisoners were beaten and subjected tostringent restrictions during detention. These severe conditions,individually or collectively, depressed, degraded, and dehumanised
detainees ensuring that they were always afraid.481

258. The Accused agreed that the living conditions, combined with the detention,interrogation and disappearance of detainees, severely impaired their physical andpsychological health and that they lived in a permanent climate of fear.482
259. All detainees held at S-21 and S-24 were deemed to be enemies and deprived of
their basic rights. The Accused indicated that, as everyone was destined for execution,
there was no need to treat detainees humanely.483 Expert David CHANDLER expandedon the conditions of the detainees and stated that “when they arrived in trucks [they were]already non-humans. The objective was to keep them in that condition and, yes, to breakthem down and mercy would have had no place in the prison.”484
2.4.5.1

Detention conditions within the S-21 complex

260. With the exception of certain important detainees, detainees entering the S-21
complex were stripped of their clothes and other belongings and left to wear theirunderwear or short trousers.485 They were then detained in either individual cells or incollective cells in groups of at least 20 to 30 or more.486 The individual cells were small
makeshift rooms and lacked windows or adequate lighting, while collective cells werelarger rooms with bars mounted on the windows. Detainees were chained and shackled to
481

Amended Closing Order, para. 143.
“Defence Position on the Facts Contained in the Closing Order”, E5/11/6.1, paras 169-171; T., 15 June2009 (Accused), p. 91; see also T., 22 June 2009 (Accused), p. 86.
483
T., 15 June 2009 (Accused), pp. 35-36; T., 22 June 2009 (Accused), p. 86.
484
T. 6 August 2009 (David CHANDLER), pp. 41-42, 88-89.
485
T., 10 August 2009 (CHHUN Phal), pp. 22-23; T., 28 July 2009 (SUOS Thy), pp. 28-29; T., 29 June2009 (VANN Nath), pp. 29, 94-95; T., 30 June 2009 (CHUM Mey), p. 43; T., 15 June 2009 (Accused), p.
35; T., 20 July 2009 (HIM Huy), p. 46; T., 15 June 2009, (Accused), pp. 45-46.
486
T., 1 July 2009 (BOU Meng), p. 21; T., 30 June 2009 (CHUM Mey), p. 47.
482

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a metal bar in their cells.487 The cells had no bedding, mattresses or mosquito nets. All
detainees were required to sleep on the concrete floor and kept under constant armed
guard.488
261. Husbands, wives and family members were separated and not allowed any contact.
Women, some of whom were pregnant, were held together in specific common cells, butwere not chained or shackled. Children were also separated from their parents or family
relatives.489
262. From their cells or the workshops, detainees could hear screaming and crying
coming from the S-21 complex.490
263. When moved from their cells, detainees were consistently handcuffed andblindfolded, leaving them disoriented and afraid.491 Witness VANN Nath described his
shock at the sight of a malnourished detainee carried by young guards with his hands andfeet tied to a wooden pole. The detainee was blindfolded but still alive and talking when
he was loaded onto a truck and taken away.492
264. Detainees saw that other detainees returning from interrogations showed signs ofsevere beating, mutilation, bruises and cuts. Some detainees died in their cells due to suchabuses or as a consequence of the conditions of detention and their bodies could be leftlying there for hours.493 In many cases, detainees removed from the common cells never487

T., 30 June 2009 (CHUM Mey), p. 72; T., 1 July 2009 (BOU Meng), p. 22; T., 15 June 2009
(Accused), pp. 39-42; T., 10 August 2009 (CHHUN Phal), pp. 21-22; T., 20 July 2009 (HIM Huy), p. 36;
T., 21 July 2009 (PRAK Khan), pp. 43-45.
488
T., 15 June 2009 (Accused), p. 45; T.,10 August 2009 (SAOM Met), pp. 81-82; T., 4 August 2009
(KHIEU Ches statement read), p. 73.
489
T., 15 June 2009 (Accused), pp. 43-44, 64, 88; T., 17 June 2009 (Accused), p. 25; T., 22 June 2009
(Accused), p. 12; T., 24 June 2009 (Accused), pp. 68, 74; T., 21 July 2009 (PRAK Khan), p. 46; T., 27 July2009 (SUOS Thy), pp. 97-98; T., 1 July 2009 (BOU Meng), pp. 50, 78; T., 10 August 2009 (CHHUN
Phal), p. 21.
490
T. 29 June 2009 (VANN Nath), pp. 83-84; T. 30 June 2009 (CHUM Mey), pp. 30, 55, 78; T., 1 July2009 (BOU Meng), pp. 81-82; see also T., 11 August 2009 (TAY Teng statement read), p. 51.
491
T., 1 July 2009 (BOU Meng) pp. 26-27; T., 14 July 2009 (MAM Nai), pp. 31-32; T., 21 July 2009
(PRAK Khan), p. 26; T., 10 August 2009 (SAOM Met), p. 80.
492
T., 29 June 2009 (VANN Nath), p. 48; see also T., 1 July 2009 (BOU Meng) p. 48.
493
T., 4 August 2009 (KHIEU Ches statement read), p. 73; T., 11 August 2009 (HAN Iem statementread), pp. 105-106; T., 16 July 2009 (HIM Huy), p. 47; T., 20 July 2009 (HIM Huy), pp. 47-48; T., 21 July2009 (PRAK Khan), p. 45; T., 30 June 2009 (CHUM Mey), p. 78; T. 15 June 2009 (Accused), pp. 42-43;

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returned. The conditions of detention imposed upon detainees left them in constant fearof being removed, beaten, tortured and executed.494
265. The impact of the conditions of detention upon the detainees was such that somedetainees attempted suicide. Witness VANN Nath described how he saw a female
detainee elude a guard and kill herself by jumping off the upper floor of the building
where they were detained.495
266. Former detainees and S-21 survivors Witness VANN Nath and Civil Parties CHUM
Mey and BOU Meng described the harsh conditions endured by all detainees and how
they were treated like “animals.”496 Civil Party CHUM Mey provided the following
account of being held in an individual cell:“[W]hen I entered that room and cell I could not expect that I would
survive. At that time I only lay down on my back waiting just to be
killed. It was the first time that I lay down directly on the floor, first timein my life, and it was the first time in my life that I was hosed with waterT., 11 August 2009 (MAKK Sithim statement read), pp. 38-41; see also T., 29 June 2009 (VANN Nath),
pp. 22-23.
494
T., 30 June 2009 (CHUM Mey), pp. 45, 78-79; T., 1 July 2009 (BOU Meng), p. 77; T., 29 June 2009
(VANN Nath), p. 63-64 (“from the feeling that I had at the time that I came across three prisons and when I
arrived at S-21, while I was being photographed I had a feeling that that was a detention centre closer to thesenior leadership and I had a slim hope that there might be justice and that because we did not do anything
wrong, and if Angkar found that we didn't make any offence, then we would be released. That was the
feeling I had at the time. However, after I entered the second floor of the D building two days later, myhope just died. It's gone. That was also based on the behaviours of the young prison guards, so I completely
lost my hope. They degraded us. It's indescribable, the way they treated us, the prisoners. Sometimes when
we laid down, when they woke us up sometimes while it was just -- while we were asleep they suddenly
woke us up and if we could not sit up on time then they used their rubber -- their tyre thongs to kick ourheads. So with such a view for the last few days when I was there, I lost my hope and when I compared mydetentions to the sector and the zone prison, I could not have any hope. The situation, the security was tight.
We were forbidden [not] to talk to any other inmates and that at S-21 is where I really had the real test of
being detained in the prison conditions. My hope was zero.”)495
T., 29 June 2009 (VANN Nath), pp. 101-102; see also T., 21 July 2009 (PRAK Khan), p. 48. The
Accused acknowledged being aware of these situations and, particularly in the case of important detainees
such as KOY Thuon, he put in place measures to ensure that detainees could not commit suicide before
completing the interrogation; see T., 15 June 2009 (Accused), pp. 87-88.
496
T., 29 June 2009 (VANN Nath), pp. 20-21; see also pp. 90-91 (“It is only the comparison of our life
during that time because we were entitled the status as human beings although we were detained, then wewould be treated different from animals because even animals, domestic animals, would be fed or would begiven food and would never been kicked days and nights like that. When human being was deprived of
their movement and we were inflicted with tortures, physically and mentally, and that's why I could lpresume that we were between animals and human beings.”); see also T., 1 July 2009 (BOU Meng), p. 76;
T., 30 June 2009 (CHUM Mey), pp. 34-35; T., 15 June 2009 (Accused), p. 86.

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when I was detained there. Even if you raise a pig you have to give foodto the pig, but for me I only got a spoonful of very thin gruel.”497

267. These S-21 survivors all spoke of the severe physical and mental harm suffered by
all the detainees while in detention and its continuing impact throughout their lives.498
Civil Party CHUM Mey described how he continues to suffer because of his detention:
Whenever the word Tuol Sleng prison comes to my mind I could not
hold my tears. It drops automatically. Every single day when I haveheard about S-21, about Tuol Sleng, about torture, then my tears justkeep flowing. And in my mind I do not know what's going to happen to
me in the future, as I could not control my tears when I have heard suchwords. […] I was told [by the Trans-Cultural Psychosocial Organisation(“TPO”)] that because of the anger of the trauma I suffered during the
Khmer Rouge regime that I need to keep my mind free from thosefeelings. However hard I try, my tears still drop.499

2.4.5.2

Deprivation of adequate food268. Food rations were extremely scarce and usually consisted of rice gruel, rice soup or
banana stalk served twice a day. Guards would scoop the food from a bowl into mugs orplates and order the detainees in the common rooms to distribute it among themselves.500
Due to the scarcity of food, detainees resorted to eating insects that fell on the floor, for497

T., 30 June 2009 (CHUM Mey), pp. 64-65.
T., 29 June 2009 (VANN Nath), pp. 54-55 (“Q. We have seen that you […] returned not too long after
you left S-21, back to where S-21 was set up, to paint paintings. Your also partook in documentary films
and I believe you also wrote a book. Can you tell us why it is so important for you to testify in this way? A.
Your Honour, Mr. President, this is what I have thought since I was detained at S 21. I determined if one
day I survived and had freedom and that I could leave that location, I would compile the events to reflect onwhat happened so that the younger generation knew - would know of our suffering […]. So I had to reveal,
I had to write, I had to compile, and it can be served as a mirror to reflect to the younger generation of the
lives of those who were accused with no reason, who committed no wrong, and that they were punishedthat way. That was the very suffering that we received and the suffering that we had because we told them
the truth and they did not believe it. There was nothing else more than that. That's why I determined, I
attempted, and I tried to explain to the younger children through various programs, through them, so thatthe younger generation would understand the experience so that they would consider and that they would
try to avoid the repeat of such historical events.”); T., 1 July 2009 (BOU Meng), pp. 61-62, 71-74, 85-86.
499
T., 30 June 2009 (CHUM Mey), pp. 68-70.
500
T., 29 June 2009 (VANN Nath), pp. 20, 28; T., 1 July 2009 (BOU Meng), pp. 15, 23; T., 3 August
2009 (LACH Mean), pp. 73-74; T., 5 August 2008 (NHEP Hau statement read), pp. 69-71; T., 10 August
2009 (CHHUN Phal), pp. 23, 55-56; T., 11 August 2009 (HAN Iem statement read), p. 105; T., 16 July2009 (HIM Huy), p. 47.
498

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which they could be beaten if a guard saw them.501 Witness VANN Nath described being
so hungry that if he had been offered human flesh, he would have eaten it.502
269. Consequently, detainees suffered severe weight loss and became extremely weak.503
The Accused acknowledged that the deprivation of adequate and sufficient food wasdeliberate and meant to debilitate the detainees in order to maintain control over theprison population, prevent riots and facilitate the generation of confessions.504
2.4.5.3

Lack of sanitation and hygiene

270. Detainees were not permitted to wash in hygienic conditions. They were washed atirregular intervals when their cells were cleaned, by hosing water from a window or door.
The detainees were allowed to stand up, but due to the chains and shackles they had
difficulty removing their clothes completely, which became soaked with water. Civil
Party BOU Meng recalled that when naked, detainees would be mocked and insulted by
the guards who would comment on their physical appearance.505
271. Male detainees had beards and long hair, and many detainees developed skin rashes
from lying on the wet floor. They were constantly bitten by mosquitoes and otherinsects.506
272. Detainees had to defecate and urinate in the cells, using ammunition boxes or otherplastic containers.507 Civil Party CHUM Mey described this as an extremely degrading

501

T., 29 June 2009 (VANN Nath), pp. 22, 69; T., 1 July 2009 (BOU Meng), p. 66; see also T., 22 June2009 (Accused), pp. 13-14;
502
T., 29 June 2009 (VANN Nath), p. 23.
503
T., 1 July 2009 (BOU Meng), p. 15; T., 28 July 2009 (SUOS Thy), pp. 14, 22.
504
T., 15 June 2009 (Accused), pp. 84-85, 92; T., 27 April 2009 (Accused), p. 23; see also T., 6 August
2009 (David CHANDLER), pp. 87-88.
505
T., 29 June 2009 (VANN Nath), pp. 22, 30; T., 1 July 2009 (BOU Meng), pp. 25-26, 75-76; see alsoT., 15 June 2009 (Accused), pp. 40-41; T., 10 August 2009 (CHHUN Phal), pp. 23-25; T., 4 August 2009
(KHIEU Ches statement read), p. 68; T., 3 August 2009 (LACH Mean), pp. 74-75; T., 10 August 2009
(SAOM Met), p. 83.
506
T., 29 June 2009 (VANN Nath), p. 22; T., 1 July 2009 (BOU Meng), pp. 21, 76.
507
T., 1 July 2009 (BOU Meng), p. 22; T., 15 June 2009 (Accused), p. 42; T., 3 August 2009 (LACH
Mean), p. 75; T., 5 August 2009 (NHEP Hau statement read), pp. 60-61; T.,10 August 2009 (SAOM Met),
p. 83.

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experience because of having to ask for the containers, and as it was done where theyslept and ate and in the presence of the guards and other detainees.508
2.4.5.4

Deprivation of medical treatment

273. Detainees were provided with minimal or no medical treatment. Cuts, bruises andother injuries following torture were treated with salty water, inadequate medication orother locally-produced medicines of scant or no effectiveness. Due to the harshconditions of detention, detainees developed skin rashes, malaria, diarrhoea and severe
dehydration, which were generally left unattended or given insufficient treatment.509
After the S-21 Medical Unit was purged, no medical treatment was provided to thedetainees.510
274. The Accused indicated that the sole purpose of any medical treatment provided was
to keep the detainees alive for their interrogations.511
2.4.5.5

Blood drawing and medical experiments

275. The Chamber has noted the practice of forced blood-drawing at S-21 (Section
2.4.1.6). The Accused has conceded that detainees were subjected to medical
experiments, which frightened them since they were unaware of the nature of the
medication given to them.512 The Chamber finds that these acts caused the detainees
serious mental suffering, in addition to any physical suffering they experienced.
2.4.5.6

Treatment of detainees at Choeung Ek and S-24

276. The Chamber has noted the conditions under which S-21 detainees were transported
to and kept at Choeung Ek prior to their executions (Section 2.3.3.6), which would have508

T., 30 June 2009 (CHUM Mey), pp. 34-35, 71.
T., 3 August 2009 (SEK Dan), pp. 9-10, 17-19; T., 11 August 2009 (MAKK Sithim statement read), p.
41; T., 21 July 2009 (PRAK Khan), p. 45; T., 30 June 2009 (CHUM Mey), p. 27.
510
T., 15 June 2009 (Accused), p. 93; T., 3 August 2009 (SEK Dan), pp. 6-7; T., 11 August 2009 (MAKK
Sithim statement read), p. 37.
511
T., 15 June 2009 (Accused), pp. 39, 92-93; T., 27 April 2009 (Accused), p. 23.
512
In fact the paracetamol had been substituted by the Accused, who knew the medication to be harmless.
T., 16 June 2009 (Accused), pp. 96-98.
509

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caused them severe anguish. The Chamber further notes that it appears some detainees
were aware of the reason for which they were being taken to Choeung Ek.513
277. The Chamber has noted the working conditions of detainees at S-24 (Sections
2.3.3.7 and 2.4.2.1). Former S-24 detainees also testified to the mistreatment they
endured there. Witness BOU Thon was beaten, resulting in facial scarring, and felt
“dehumanized because my life was in the hands of them and they could make any
decision to kill me any time they wished to do so.”514 Witness PHAK Siek was detained
at S-24 in March 1977 after her superior officer had been arrested. She was told that if the“leaders are traitors […] the subordinates are too”515 but that “if you build yourself well,
you will stay alive. If not, you will die.”516 She understood clearly that any offence suchas eating crabs, snails, sugar palm or fruit would result in harsh punishment. On one
occasion she observed a woman who emerged from overnight detention with a swollen
face and was paraded as an enemy. Witness PHAK Siek was assigned weekly to burn theclothing of those who had been taken away and did not return.517
278. Other detainees were noticeably thin and fearful. Although they harvested rice andcorn in abundance, they were not permitted to eat the produce.518 Food, consisting of riceor thin gruel, was provided twice a day, but so-called bad elements received even less.519
The Accused acknowledged that beatings were practiced on detainees placed in a
detention room for failing to follow the discipline. Interrogation and torture also took
place at S-24 but without his direct authorisation.520 The Accused noted that starvation
was a deliberate CPK policy applied at S-24, acknowledging that he delivered “surplus”

513

T., 17 June 2009 (Accused), p. 43; T., 30 June 2009 (CHUM Mey), pp. 43-45, 79.
T., 12 August 2009 (BOU Thon), pp. 33-34.
515
T., 12 August 2009 (PHAK Siek statement read), p. 61.
516
T., 12 August 2009 (PHAK Siek statement read), p. 56.
517
T., 12 August 2009 (PHAK Siek statement read), p. 59.
518
T., 12 August 2009 (BOU Thon), pp. 28, 34; T., 8 July 2009 (CHIN Met), pp. 62-63.
519“Written Record of Interview of Witness of BOU Thon”, E3/493, ERN (English) 00163763; “Defence
Position on the Facts Contained in the Closing Order, E5/11/6.1, para. 177; T., 1 April 2009 (Agreed
Facts), p. 83; T., 8 July 2009 (CHIN Met), pp. 62-63.
520“Defence Position on the Facts Contained in the Closing Order”, E5/11/6.1, paras 232-234; T., 1 April
2009 (Agreed Facts), p. 92; T., 24 June (Accused), pp. 24-25, 40-41, 43; T., 25 June 2009 (Accused), p. 7;
see also Section 2.3.3.7.
514

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rice grown at S-24 to the Central Committee.521 Nonetheless, he compared the food andmedical care at S-24 favourably to that available to detainees at S-21.522
2.4.6 Persecution on political grounds279. The Amended Closing Order states:
141. The judicial investigation demonstrated that detainees at S21 weredenied fundamental rights including: life; liberty; security of person; due
process; and freedom of movement. These fundamental rights weredenied or infringed from the moment of their arrest and throughout theirdetention, interrogation, re-education or execution. Detainees weredenied these fundamental rights based upon their real or perceived
political beliefs or political opposition to those in power in the CPK.
Detainees were subject to arbitrary and unlawful detention, torture,enslavement, murder, and other inhumane acts.
142. DUCH was aware of the discriminatory policies by which S21
operated, and his intent to discriminate in accordance with these policies
can be inferred from his actions, his positions at S21, his status as a CPK
Party member, and his relationships with the CPK leadership.523

280. The denial of fundamental rights to detainees at S-21 which the Amended Closing
Order indicates amount to persecution comprises the discrete crimes against humanity ofmurder, extermination, enslavement, imprisonment, torture (including one instance ofrape), and other inhumane acts. The Chamber has already described the nature of theseoffences committed at S-21 and makes findings on whether they amount to persecution in
Section 2.5.3.14.

521
522
523

“Defence Position on the Facts Contained in the Closing Order”, E5/11/6.1, paras 177 – 178.
T., 24 June 2009 (Accused), pp. 22-24.
Amended Closing Order, paras 141-142.

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2.5

Applicable Law and Findings on Crimes against humanity

281. The Chamber has subject-matter jurisdiction over crimes against humanity pursuant
to Article 5 of the ECCC Law.524 Article 5 of the ECCC Law provides:
The Extraordinary Chambers shall have the power to bring to trial all
Suspects who committed crimes against humanity during the period 17
April 1975 to 6 January 1979.
Crimes against humanity, which have no statute of limitations, are any
acts committed as part of a widespread or systematic attack directedagainst any civilian population, on national, political, ethnical, racial or
religious grounds, such as:
•
•
•
•
•
•
•
•
•

murder;extermination;
enslavement;
deportation;
imprisonment;
torture;rape;
persecutions on political, racial, and religious grounds;
other inhumane acts.

282. The Amended Closing Order charges the Accused with the following crimes against
humanity: (i) murder; (ii) extermination; (iii) enslavement; (iv) imprisonment; (v) torture;(vi) rape; (vii) persecution on political grounds;525 and (viii) other inhumane acts.526
283. As a preliminary matter, and in accordance with the principle of legality (Section
1.5), the Chamber must establish that these offences constituted crimes under national orinternational law during the 17 April 1975 to 6 January 1979 period.
284. Cambodian law contained no provisions relevant to crimes against humanity, nor
was Cambodia between 1975 and 1979 a party to any international treaty relevant tothese crimes. The Chamber must therefore consider whether crimes against humanity as
defined in Article 5 of the ECCC Law formed part of customary international law during
this period.

524

See ECCC Agreement, Article 2.2.
The Amended Closing Order indicts the Accused for persecution only on political grounds, which isnarrower than the offence of persecution as envisaged by Article 5 of the ECCC Law.
526
Amended Closing Order, pp. 44-45.
525

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285. The notion of crimes against humanity as an independent juridical concept, and theimputation of individual criminal responsibility for their commission, was firstrecognised in Article 6(c) of the Charter of the International Military Tribunal for the
Trial of the Major War Criminals annexed to the London Agreement of 8 August 1945(“Nuremberg Charter” and “Nuremberg Tribunal”),527 which granted the Nuremberg
Tribunal jurisdiction over this crime. Crimes against humanity were included as a distinct
category of crime in the Nuremberg Charter so that acts by perpetrators against theirfellow nationals, which might not otherwise have been covered by traditional
formulations of war crimes, would not escape prosecution by the Nuremberg Tribunal.528
286. Jurisdiction over crimes against humanity was also included in Article 5(c) of theCharter of the International Military Tribunal for the Far East of 19 January 1946(“Tokyo Charter”)529 and in Law No. 10 of the Control Council for Germany (“Control
Council Law No. 10”),530 which were utilised for additional prosecutions for atrocities
committed during the Second World War.

527

Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, andCharter of the International Military Tribunal, 8 August 1945 (82 UNTS 279). Article 6(c) of the
Nuremberg Charter described crimes against humanity as: “murder, extermination, enslavement,
deportation or other inhumane acts committed against any civilian population, before or during the war[,]or persecutions on political, racial, or religious grounds in execution of or in connection with any crime
within the jurisdiction of the Tribunal, whether or not in violation of [the] domestic law of the country
where perpetrated”; see also Protocol Rectifying Discrepancy in Text of Charter, 6 October 1945, reprinted
in Trial of the Major War Criminals Before the International Military Tribunal: Nuremberg, 14 November
1945 – 1 October 1946, Vol. 1, pp. 17-18.
528
See Prosecutor v. Tadić, Opinion and Judgment, ICTY Trial Chamber (IT-94-1-T), 7 May 1997(“Tadić Trial Judgement”), paras 618-619.
529
Annexed to the Special Proclamation of 19 January 1946 by the Supreme Commander of the AlliedPowers in the Far East. Article 5(c) of the Tokyo Charter described crimes against humanity as “murder,
extermination, enslavement, deportation, and other inhumane acts committed against any civilian
population, before or during the war, or persecutions on political or racial grounds in execution of or inconnection with any crime within the jurisdiction of the Tribunal, whether or not in violation of thedomestic law of the country where perpetrated.”
530
Control Council Law No. 10 (1945), reprinted in Trials of War Criminal Before the Nuernberg
Military Tribunals Under Control Council Law No. 10, Vol. I, pp. XVI-XIX. Article II of Control Council
Law No. 10 described crimes against humanity as: “[a]trocities and offences, including but not limited tomurder, extermination, enslavement, deportation, imprisonment, torture, rape, or other inhumane acts
committed against any civilian population, or persecutions on political, racial or religious grounds whether
or not in violation of the domestic laws of the country where perpetrated.”

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287. The prohibition of crimes against humanity was subsequently affirmed by theGeneral Assembly531 and by the Principles of International Law Recognized in theCharter of the Nuremberg Tribunal and in the Judgement of the Tribunal (“Nuremberg
Principles”), adopted by the International Law Commission in 1950 and submitted to theGeneral Assembly.532 The General Assembly further proclaimed the need forinternational cooperation in the detection, arrest, extradition and punishment of persons
guilty of crimes against humanity.533
288. Following the Nuremberg-era tribunals, codifications of international law on
genocide and apartheid, two of crimes against humanity’s most egregious manifestations,confirmed the customary status of the prohibition of crimes against humanity.534 Criminal
prosecutions for crimes against humanity also continued domestically in the decades after
the Second World War.535
289. More recently, jurisdiction over crimes against humanity was provided for in the
Statutes of the ICTY,536 the International Criminal Tribunal for Rwanda (“ICTR”),537 theSpecial Court for Sierra Leone (“SCSL”)538 and the ICC.539 These international criminal

531

Affirmation of the Principles of International Law recognized by the Charter of the Nürnberg Tribunal,
UNGA Res. 95 (I) of 11 December 1946.
532
International Law Commission Report on the Nuremberg Principles, 5 UN GAOR, Supp. No. 12, UN
Doc. A/1316 (1950).
533
Principles of international cooperation in the detection, arrest, extradition and punishment of persons
guilty of war crimes and crimes against humanity, UNGA Res. 3074 (XXVIII) of 3 December 1973; seealso UNGA Res. 2712 (XXV) of 15 December 1970.
534
Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948, 78 UNTS
277, Article 1; International Convention on the Suppression and Punishment of the Crime of Apartheid, 30
November 1973, 1015 UNTS 243, Article I.
535
See e.g., the Attorney-General of the Government of Israel v. Adolph Eichmann (1962), 36 ILR 277.
536
Article 5 of the ICTY Statute (“The [ICTY] shall have the power to prosecute persons responsible forthe following crimes when committed in armed conflict, whether international or internal in character, anddirected against any civilian population: (a) murder; (b) extermination; (c) enslavement; (d) deportation; (e)imprisonment; (f) torture; (g) rape; (h) persecutions on political, racial and religious grounds; (i) otherinhumane acts.”)
537
Article 3 of the ICTR Statute (“The [ICTR] shall have the power to prosecute persons responsible forthe following crimes when committed as part of a widespread or systematic attack against any civilian
population on national, political, ethnic, racial or religious grounds: (a) Murder; (b) Extermination; (c)Enslavement; (d) Deportation; (e) Imprisonment; (f) Torture; (g) Rape; (h) Persecutions on political, racial
and religious grounds; (i) Other inhumane acts.”)
538
Article 2 of the SCSL Statute (“The [SCSL] shall have the power to prosecute persons who committed
the following crimes as part of a widespread or systematic attack against any civilian population: (a)Murder; (b) Extermination; (c) Enslavement; (d) Deportation; (e) Imprisonment; (f) Torture; (g) Rape,

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tribunals have reaffirmed the continued customary status of crimes against humanity
under international law.540 As stated by the Trial Chamber of the ICTY in its Tadić
judgment, “since the [Nuremberg] Charter, the customary status of the prohibition against
crimes against humanity and the attribution of individual criminal responsibility for theircommission have not been seriously questioned.”541
290. While consistently forming part of customary international law since the Nuremberg
Charter, crimes against humanity have been variously defined and its elements have beenrefined throughout the years. This reflects both the crime’s customary nature and the factthat the tribunals’ jurisdictions over the crime were not always co-extensive with the fullscope permitted under customary international law.542 The principle of legality preventsneither a reliance on unwritten custom nor a determination through a process ofinterpretation and clarification as to the elements of a particular crime. As detailed below,
the formulation of crimes against humanity adopted in Article 5 of the ECCC Law
comports with that existing under customary international law during the 1975 to 1979
period.
291. In particular, the Chamber notes that Article 5 of the ECCC Law does not require alink between crimes against humanity and armed conflict. Although Article 6(c) of the
Nuremberg Charter required a nexus between crimes against humanity and armed
conflict,543 such a nexus was not included in the 1945 Control Council Law No. 10,544 thesexual slavery, enforced prostitution, forced pregnancy and any other form of sexual violence; (h)Persecution on political, racial, ethnic or religious grounds; (i) Other inhumane acts.”)
539
Article 7 of the ICC Statute (“For the purpose of this Statute, ‘crime against humanity’ means any of
the following acts when committed as part of a widespread or systematic attack directed against any
civilian population, with knowledge of the attack: […].”)
540
Tadić Trial Judgement, para. 623; Akayesu Appeal Judgement, paras 465-466; Prosecutor v. Sesay etal., Judgement, SCSL Trial Chamber (SCSL-04-15-T), 2 March 2009 (“Sesay Trial Judgement”), paras 5759; see also Article 7 (Crimes against humanity) Introduction, of the ICC’s “Elements of Crimes” (ICCASP/1/3 (part II-B), entry into force 9 September 2002), para. 1.
541
Tadić Trial Judgement, para. 623.
542
See e.g., Prosecutor v. Akayesu, Judgment, ICTR Appeals Chamber (ICTR-96-4-A), 1 June 2001(“Akayesu Appeal Judgement”), para. 465 (noting that the discriminatory grounds requirement in Article 3of the ICTR Statute and the armed conflict requirement in Article 5 of the ICTY Statute were jurisdictionalin nature and not part of the customary international law definition of crimes against humanity).
543
See Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis,
and Charter of the International Military Tribunal, 8 August 1945, 82 UNTS 279, Article 6(c) (stating thatcrimes against humanity must be carried out “in execution of or in connection with [a war crime or a crime
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1948 Convention on the Prevention and Punishment of the Crime of Genocide,545 the1954 International Law Commission’s Draft Code of Offenses against the Peace andSecurity of Mankind,546 the 1968 Convention on the Non-Applicability of Statutory
Limitations to War Crimes and Crimes Against Humanity,547 and the 1973 International
Convention on the Suppression and Punishment of the Crime of Apartheid.548 The notionof armed conflict also does not form part of the current-day customary definition ofcrimes against humanity.549
292. International tribunals that have subsequently considered the issue have also foundthat the notion of crimes against humanity existed independently from that of armed
conflict under customary international law prior to 1975. The ICTY Appeals Chamber
has stated that the armed conflict requirement in Article 6(c) of the Nuremberg Charter
was a jurisdictional issue, thus implying that it was not required under customaryinternational law even in 1945.550 The Grand Chamber of the European Court of Human
Rights has noted that, while the nexus with armed conflict initially formed part of thecustomary definition of crimes against humanity, this nexus may no longer have been
relevant as of 1956.551 The Group of Experts for Cambodia appointed pursuant to General
Assembly Resolution 52/135 similarly concluded that “[t]he bond between crimes against

544

See Ohlendorf and Others Case (‘Einsatzgruppen case’), Judgment of 8-9 April 1948, Trials of War
Criminal Before the Nuernberg Military Tribunals Under Control Council Law No. 10, Vol. IV, p. 499(finding that Control Council Law No. 10 was not limited to offences committed during or in connection
with the war); see, however, Flick and Others Case, Judgment of 22 December 1947, Trials of War
Criminal Before the Nuernberg Military Tribunals Under Control Council Law No. 10, Vol. VI, pp. 12121214.
545
Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948, 78 UNTS
277, Article 1.
546
UN Doc A/2693 (1954); see also the 1991 and 1996 versions of the International Law Commission’s
Draft Code of Crimes against the Peace and Security of Mankind (UN Docs A/46/10 (1991) and A/51/10(1996), respectively), which also do not contain an armed conflict nexus.
547
Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against
Humanity, UNGA Res. 2391 (XXVIII) of 26 November 1968, Annex, Article I(b) (concerning crimes
against humanity “whether committed in time of war or in time of peace.”)548International Convention on the Suppression and Punishment of the Crime of Apartheid, 30 November
1973, 1015 UNTS 243, Article I.
549
See Prosecutor v. Tadić, Judgement, ICTY Appeals Chamber (IT-94-1-A), 15 July 1999 (“Tadić
Appeal Judgement”), para. 249; see also the Statutes of the ICTR, SCSL and of the ICC, none of whichlink crimes against humanity to armed conflict.
550
Prosecutor v. Tadić, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, ICTY
Appeals Chamber (IT-94-1-AR72), 2 October 1995, para. 140.
551
Korbely v. Hungary, Judgement, ECtHR Grand Chamber (no. 9174/02), 19 September 2008, para. 82.

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humanity and armed conflict appears to have been severed by 1975.”552 The Chamber
therefore considers that the lack of any nexus with armed conflict in Article 5 of the
ECCC Law comports with the customary definition of crimes against humanity during
the 1975 to 1979 period.
293. Further, the underlying offences with which the Accused is charged pursuant to
Article 5 of the ECCC Law have been recognised since the Nuremberg-era tribunals as
constituting crimes against humanity and prosecuted as such where the crime’s chapeau
requirements are otherwise satisfied. The offences of murder, extermination,
enslavement, other inhumane acts and persecution on political grounds were explicitly
included as constituting crimes against humanity in Article 6(c) of the Nuremberg
Charter, Article 5(c) of the Tokyo Charter and Article II of Control Council Law No. 10.
The offences of imprisonment, torture and rape were also explicitly included as
constituting crimes against humanity in Article II of Control Council Law No. 10 andwere subsumed as other inhumane acts in Article 6(c) of the Nuremberg Charter andArticle 5(c) of the Tokyo Charter. The Statutes of the ICTY, ICTR, SCSL and of the ICC
include all of these underlying offences as crimes against humanity.
294. It was thus foreseeable during the 1975 to 1979 period that the Accused could beheld criminally liable for the offences with which he is charged pursuant to Article 5 of
the ECCC Law. The law providing for the Accused’s criminal responsibility was alsosufficiently accessible considering its international customary basis.
295. In addition, the appalling nature of the offences charged pursuant to Article 5 of the
ECCC Law helps to refute any claim that the Accused would have been unaware of theircriminal nature.553

552

Report of the Group of Experts for Cambodia established pursuant to General Assembly resolution
52/135 (annexed to document A/53/850-S/1999/231), 18 February 1999, para. 71.
553
Prosecutor v. Milutinović et al., Decision on Dragoljub Odjanović’s Motion Challenging Jurisdiction –Joint Criminal Enterprise, ICTY Appeals Chamber (IT-99-37-AR72), 21 May 2003, para. 42 (noting thatthe immorality or appalling character of an act may play a role in refuting any claim that its perpetrator did
not know of its criminal nature).

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296. The Chamber finds that, at all times relevant to the Amended Closing Order,
offences charged against the Accused pursuant to Article 5 of the ECCC Law constituted
crimes under international law.
2.5.1 Chapeau requirements for Article 5 of the ECCC Law
297.

Offences listed in Article 5 of the ECCC Law can constitute crimes against

humanity only if the following chapeau prerequisites are established to the required
standard: (i) there must be an attack; (ii) it must be widespread or systematic; (iii) it must
be directed against any civilian population; (iv) it must be on national, political, ethnical,
racial or religious grounds; (v) there must be a nexus between the acts of the accused andthe attack; and (vi) the accused must have the requisite knowledge.554
2.5.1.1

Attack298. An attack is a course of conduct involving the multiple commission of acts ofviolence.555 The acts which constitute an attack need not themselves be punishable ascrimes against humanity. They will nevertheless often be of the kind of mistreatment
listed as an underlying offence in Article 5 of the ECCC Law. The accused does not haveto commit all of the acts of violence that make up the attack – the accused’s acts need
only be part of the broader attack. There may exist, within a single attack, a combinationof acts of violence, for example acts of murder, rape and torture.556
299. Although the notion of an attack is distinct from that of armed conflict, an attack ona civilian population may precede, outlast or continue through an armed conflict.557

554

Article 5 of the ECCC Law also requires that crimes against humanity be committed during the periodof 17 April 1975 to 6 January 1979 (Section 1.4.1).
555
Prosecutor v. Nahimana et al., Judgement, ICTR Appeals Chamber (ICTR-99-52-A), 28 November
2007 (“Nahimana Appeal Judgement”), para. 918.
556
Nahimana Appeal Judgement, para. 917-918, citing Prosecutor v. Kayishema et al., Judgement, ICTR
Trial Chamber (ICTR-95-1-T), 21 May 1999 (“Kayishema et al. Trial Judgement”), para. 122.
557
Prosecutor v. Kunarac et al., Judgement, ICTY Appeals Chamber (IT-96-23 & IT-96-23/1-A), 12 June
2002, para. 86 (“Kunarac Appeal Judgement”); Sesay Trial Judgement, paras 77, 949.

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2.5.1.2

Widespread or systematic

300. In accordance with customary international law, the attack must be either
widespread or systematic.558 The term “widespread” refers to the large-scale nature of theattack and the number of victims, while the term “systematic” refers to the organised
nature of the acts of violence and the improbability of their random occurrence.559 While
the requirements are alternatives, in practice these criteria may often be difficult toseparate since a widespread attack targeting a large number of victims generally relies onsome form of planning or organisation. A widespread attack may refer either to the“cumulative effect of a series of inhumane acts or the singular effect of an inhumane actof extraordinary magnitude.”560
301. The consequences of the attack upon the targeted population, the number of victims,
the nature of the acts, the possible participation of officials or authorities, or any
identifiable patterns of crimes may be taken into account to determine whether the attack
satisfies either or both of the “widespread” or “systematic” requirements.561 While theexistence of a policy or plan may be evidentially relevant in establishing the widespreador systematic nature of the attack, it does not constitute an independent legal element of
the crime.562 Only the attack, not the underlying acts, need be widespread orsystematic.563
2.5.1.3

Directed against any civilian population

302. The attack must be directed against any civilian population. The “population”
element is intended to imply crimes of a collective nature and excludes single or isolated

558

Tadić Trial Judgement, paras 646-648; Prosecutor v. Akayesu, Judgement, ICTR Trial Chamber(ICTR-96-4-T), 2 September 1998 (“Akayesu Trial Judgement”), para. 579 fn. 144.
559
Kunarac Appeal Judgement, para. 94; Nahimana Appeal Judgement, para. 920; Sesay Trial
Judgement, para. 78.
560
Blaškić Trial Judgement, para. 206.
561
Kunarac Appeal Judgement, para. 95.
562
Kunarac Appeal Judgement, para. 98 fn. 114; Gacumbitsi Appeal Judgement, para. 84; Sesay Trial
Judgement, para. 79.
563
Kunarac Appeal Judgement, para. 96; Gacumbitsi Appeal Judgement, para. 102; Sesay Trial
Judgement, para. 89.

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acts, which, although possibly constituting war crimes or crimes against national penal
legislation, do not rise to the level of crimes against humanity.564
303. The use of the term “population” does not mean that the entire population of thegeographical entity in which the attack took place must be subjected to that attack. It is“sufficient to show that enough individuals were targeted in the course of the attack, orthat they were targeted in such a way as to satisfy the Chamber that the attack was in factdirected against a civilian ‘population’ as opposed to a limited and randomly-selected
number of individuals.”565
304. Civilian status is defined through the provisions of the law of armed conflict,particularly Article 50 of Additional Protocol I and Article 4A of the Third Geneva
Convention, which establish that members of the armed forces and other combatants(militias, volunteer corps and members of organized resistance groups) cannot claim
civilian status. The civilian population therefore includes all persons who are notmembers of the armed forces or otherwise recognised as combatants.566 Members of thearmed forces are not considered “civilians” merely because they were not engaged incombat at the time of their arrests. Accordingly, soldiers hors de combat do not qualify
as civilians for the purposes of Article 5 of the ECCC Law.567 As a general presumption,
the armed law enforcement agencies of a State are considered to be civilians for purposes

564

Tadić Trial Judgement, paras 644 and 648.
Kunarac Appeal Judgement, para. 90; Prosecutor v. Sesay et al., Judgement, SCSL Appeals Chamber(SCSL-04-15-A), 26 October 2009 (“Sesay Appeal Judgement”), para. 719.
566
Prosecutor v. Blaškić, Judgement, ICTY Appeals Chamber (IT-95-14-A), 29 July 2004 (“Blaškić
Appeal Judgement”), paras 110-113; Sesay Trial Judgement, para. 82.
567
Prosecutor v. Mrkšić et al., Judgement, ICTY Appeals Chamber (IT-95-13/1-A), 5 May 2009 (“Mrkšić
Appeal Judgement”), para. 35 (reversing the Trial Chamber’s more expansive definition of civilians on thebasis of accepted principles of customary international law); see also Blaškić Appeal Judgement, para. 110.
See however Common Article 3 of the Geneva Conventions, which provides that “[p]ersons taking noactive part in the hostilities, including members of armed forces who have laid down their arms and thoseplaced hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances betreated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or
wealth, or any other similar criteria.” That these persons are protected in armed conflicts reflects a principleof customary international law (ibid., para. 113, footnote 220).
565

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of international humanitarian law.568 A person shall be considered to be a civilian for as
long as there is doubt as to his or her status.569
305. The jurisprudence of the ad hoc Tribunals has stressed that this population must be“predominantly civilian” and “the primary object of the attack.”570 This does not imply
that the population shall be comprised only of civilians. The presence within the civilian
population of individuals who do not come within the definition of civilians does notdeprive the population of its civilian character.571 The civilian status of the victims, thenumber of civilians, and the proportion of civilians within a population are factors
relevant to the determination of whether the requirement that an attack be directed against
a “civilian population” is fulfilled.572
306. For the purposes of this chapeau requirement, the ad hoc Tribunal jurisprudence has
evaluated situations in which civilians and soldiers co-exist within the same geographicalarea subjected to an attack, and where victims of alleged crimes against humanity
comprise both civilians and military personnel.573 The ICTY Appeals Chamber has notedthat when discussing “whether a population is civilian based on the proportion ofcivilians and combatants within it, that is, [where] the status of the population has yet to
be determined or may be changing due to the flow of civilians and military personnel”, it
is inevitable in wartime conditions that combatants may become intermingled with thecivilian population. However, “provided that these are not regular units with fairly large
numbers, this does not in any way change the civilian character of a population.”574

568

Sesay Trial Judgement, para. 87 (noting that this same presumption will not exist for forces that
operate under the control of the military.)
569
Blaškić Appeal Judgement, para. 111.
570
Kunarac Appeal Judgement, para. 91.
571
Article 50(3) of Additional Protocol I; see also Mrkšić Appeal Judgement, para. 25; Sesay Trial
Judgement, para. 87.
572
Mrkšić Appeal Judgement, paras 32-33 and 36 (finding that of the 194 persons taken from the Vukovar
hospital and later executed by Serb forces on 20 November 1991, 181 were known to be active in the
Croatian forces in Vukovar and were thus predominantly non-civilian).
573
See e.g., Prosecutor v. Dragomir Milošević, Judgement, ICTY Appeals Chamber (IT-98-29/1-A), 12
November 2009 (“Dragomir Milošević Appeal Judgement”), paras 50, 139 (determining the population of
Sarajevo to have preserved its civilian status despite the stationing of approximately 40,000 to 45,000
Bosnian Army troops within the city and the continual flow of civilians and combatants due to wartime
conditions).
574
Prosecutor v. Galić, Judgement, ICTY Appeals Chamber (IT-98-29-A), 30 November 2006, para. 137.

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307. Although this jurisprudence has not directly considered a situation in which theentire population of a territory – including both civilian and military elements – isencompassed within an attack, the Chamber finds that the following relevant principles
may be distilled from this jurisprudence when determining whether such an attack may
be considered to have been “directed against” a civilian population for the purposes of
Article 5 of the ECCC Law.
308. When considering the general requirements of crimes against humanity, the laws ofarmed conflict play an important role in the assessment of the legality of the acts
committed in the course of a conflict and whether the civilian population may bedescribed as having been targeted as such.575 The relevant jurisprudence has accordingly
emphasised that in the context of a crime against humanity, the civilian population must
be the primary object of an attack.576 In this regard, the expression “directed against” acivilian population serves to clarify that “customary international law obliges parties tothe conflict to distinguish at all times between the civilian population and combatants,
and obliges them not to attack a military objective if the attack is likely to cause civilian
casualties or damage which would be excessive in relation to the military advantage
anticipated.”577

Consequently, “in order to determine whether the presence of soldiers within a civilian population deprives
the population of its civilian character, the number of soldiers, as well as whether they are on leave, must
be examined” (Blaškić Appeal Judgement, para. 115); see also Prosecutor v. Mrkšić et al., Judgement,
ICTY Trial Chamber (IT-95-13/1-T), 27 September 2007 (“Mrkšić Trial Judgement”), paras 468-472(although no exact count of the number of civilian and combatant casualties was possible, the attack by
Serb forces was described as an attack against the Croat and other non-Serb civilian population in the wider
Vukovar area, given its clearly unlawful character, extensive damage caused to civilian property, and thenumber of civilians killed, wounded or displaced).
575
Prosescutor v. Galić, Judgement, ICTY Trial Chamber (IT-98-29-T), 5 December 2003 (“Galić Trial
Judgement”), para. 144 (noting that in the context of an armed conflict, the determination that an attack is
unlawful in light of the law of armed conflict is critical in determining whether the general requirements ofcrimes against humanity have been met. Otherwise, unintended civilian casualties resulting from a lawful
attack on legitimate military objectives would amount to a crime against humanity and lawful combat
would, in effect, become impossible).
576
Kunarac Appeal Judgement, para. 91 (“to the extent that the alleged crimes against humanity werecommitted in the course of an armed conflict, the laws of war provide a benchmark against which the
Chamber may assess the nature of the attack and the legality of the acts committed in its midst.”); see also
Mrkšić Appeal Judgement, para. 23.
577
Prosecutor v. Kunarac, Judgement, ICTY Trial Chamber (IT-96-23-T and IT-96-23/1-T), 22 February
2001 (“Kunarac Trial Judgement”), para. 426.

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309. The factors relevant to determining whether the attack was so directed include: themeans and method used in the course of the attack, the status of the victims, their
number, the discriminatory nature of the attack, the nature of the crimes committed in its
course, and the resistance to the assailants at the time and the extent to which theattacking force may be said to have complied or attempted to comply with the
precautionary requirements of the laws of war.578
310. The prohibition against targeting the civilian population does not exclude thepossibility of civilian casualties incidental to an attack aimed at legitimate military
targets. However, indiscriminate attacks, that is attacks that affect civilians or civilian
objects and military objects without distinction, may also be qualified as direct attacks on
civilians.579 Where the civilian population is the intended target of an attack, thisjurisprudence has not, however, required that the civilian population be the sole or
exclusive object of that attack.
311. Where the civilian population is the object of an attack, the ICTY Appeals Chamber
has further clarified that “there is no requirement nor is it an element of crimes against
humanity that the victims of the underlying crimes be civilians.”580 Thus, a soldier who ishors de combat may be the victim of an act amounting to a crime against humanity,
provided that all other necessary conditions are met.581

578

Mrkšić Appeal Judgement, para. 25.
Prosecutor v. Martić, Judgement, ICTY Appeals Chamber (IT-95-11-A), 8 October 2008 (“Martić
Appeal Judgement”), paras 255, 259-261 (endorsing the Trial Chamber’s finding that the shelling ofZagreb to amount to a widespread attack directed against a civilian population “due to the characteristics of
the weapon used and the large-scale nature of the attack”); see also Galić Trial Judgement, para. 60(“certain apparently disproportionate attacks may give rise to the inference that civilians were actually theobject of attack”); Prosecutor v. Strugar, Judgement, ICTY Appeals Chamber (IT-01-42-A), 17 July 2008(“Strugar Appeal Judgement”), para. 275 (“the indiscriminate character of an attack can be indicative of thefact that the attack was indeed directed against the civilian population”).
580
Mrkšić Appeal Judgement, para. 32 (emphasis added); see also Dragomir Milošević Appeal
Judgement, para. 96 (where finding that attacks were directed against the civilian population, a Chamber is
not required to find that all victims of individual crimes were civilians).
581
Martić Appeal Judgement, paras 309-313; see also Sesay Trial Judgement, para. 82 (affirmed in Sesay
Appeal Judgement, para. 1069); cf. Mrkšić Appeal Judgement, paras 36, 42-43 (acquittals for crimes
against humanity upheld as the crimes in question were directed against a specific group of individuals
selected on the basis of their perceived involvement in the Croatian armed forces. As such, they weretreated differently from the civilian population of Vukovar and these crimes were not intended to form partof the broader attack against the civilian population. There was accordingly no nexus between the acts of
579

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312. The reference to “any” civilian population ensures that the nationality or ethnicity ofthe population is immaterial. Provided the victims were targeted as part of an attack
against a civilian population, it is unnecessary to demonstrate that they were linked –politically, ethnically, or otherwise – to any particular group.582 Crimes against humanity
may therefore include a State’s attack on its own population.583
2.5.1.4

On national, political, ethnical, racial or religious grounds

313. Article 5 of the ECCC Law further requires that the acts be “committed as part of awidespread or systematic attack directed against any civilian population, on national,
political, ethnical, racial or religious grounds.”584 The Chamber interprets Article 5 of
the ECCC Law as an added jurisdictional requirement which goes to the nature of theattack, not to the underlying offences.585 The Chamber notes that any discriminatory basis
requirement under the Nuremberg Charter, the Tokyo Charter and Control Council Law
No. 10 was limited to the underlying offence of persecution, for which a discriminatory
intent was specifically required. All other offences as crimes against humanity in these
instruments existed independently of any discriminatory basis.
314. Aside from the ECCC Law, the sole other instance of where a discriminatory
requirement has been required in relation to the chapeau requirements of crimes against
humanity is the ICTR Statute.586 Despite differences in wording of both provisions, thethe accused and the attack itself or between the crimes committed against the prisoners at Ovčara and thewidespread or systematic attack against the civilian population of Vukovar).
582
Kunarac Trial Judgement, para. 423; see also Attorney-General of the State of Israel v. Enigster,District Court of Tel Aviv, 4 January 1952. See further Prosecutor v. Semanza, Judgement and Sentence,
ICTR Trial Chamber (ICTR-97-20-T), 15 May 2003 (“Semanza Trial Judgement”), para. 330 (“victim[s] of
the enumerated act need not necessarily share geographic or other defining features with the civilian
population that forms the primary target of the underlying attack, but such characteristics may be used todemonstrate that the enumerated act forms part of the attack”).
583
Mrkšić Trial Judgement, para. 441 (noting that historically, one of the main distinguishing factors
between war crimes and crimes against humanity was that the former could only be committed against
enemy nationals, whereas crimes against humanity could also be committed against the state’s own
population).
584
Emphasis added; cf. French and Khmer versions of Article 5 of the ECCC Law
585
See also Article 9 of Agreement (referring to “crimes against humanity as defined in the 1998 Rome
Statute of the ICC”, whose definition of crimes against humanity also limits any discriminatory
requirement to the underlying offence of persecution).
586
Article 3 of ICTR Statute provides that “[t]he International Tribunal for Rwanda shall have the power
to prosecute persons responsible for the following crimes when committed as part of a widespread or

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discriminatory grounds contained in the chapeau provisions of Article 5 of the ECCC are
similar to those listed in Article 3 of the ICTR Statute. They constitute a jurisdictional
requirement that narrows the scope of the ECCC’s jurisdiction over crimes against
humanity further than would otherwise have been necessary under customaryinternational law during the 1975 to 1979 period.

Subsequent jurisprudence frominternational criminal tribunals, as well as the ICC Statute, has since clarified that except
in the case of persecution, a discriminatory intent is not required by customaryinternational law as a legal ingredient for all crimes against humanity.587 A contrary
interpretation would add a requirement of discriminatory intent with respect to all crimes
against humanity, rendering redundant the express reference to discrimination within theoffence of persecution in Article 5 of the ECCC Law.588
315. The required discriminatory grounds have been interpreted broadly and have also
included negatively-defined groups or individuals such as victims of acts which “weremanifestly part of the generalised and systematic attack [by Serb forces] launched against
the non-Serb civilian population of the Foča municipality.”589
316. The Josef Altstötter and Others case identified opposition to political ideas as therelevant discriminatory basis in relation to the specific offence of persecution. In
addressing generally the notion of discrimination on political grounds, the Nuremberg
Tribunal noted as follows:
Coming into the category of cases upon political grounds, we must
remember that “political” in Law No. 10, written to apply in the Third
Reich, cannot be read in the sense of “political” as it is known incountries which enjoy a two or more party system. “Political” as all Nazi
systematic attack against any civilian population on national, political, ethnic racial or religious grounds:….” (emphasis added).
587
See Tadić Appeal Judgement, para. 305; Prosecutor v Bagosora et al., Judgement, ICTR Trial
Chamber (ICTR-98-41-T), 18 December 2009 (“Bagosora Trial Judgement”), paras 2166, 2208 (notingthat the additional chapeau requirement that crimes against humanity have to be committed “on national,
political, ethnic, racial or religious grounds” does not mean that a discriminatory intent must be established)
and Article 7(1)(h) of the ICC Statute.
588
The chapeau in Article 5 of the ECCC Law refers to discrimination on “national, political, ethnical,
racial or religious grounds” while the offence of persecution listed thereunder refers to discrimination on“political, racial, and religious grounds”.
589
Prosecutor v. Krnojelac, Judgement, ICTY Trial Chamber (IT-97-25-T), 15 March 2002 (“Krnojelac
Trial Judgement”), para. 50.

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judges construed it – and the defendant Cuhorst construed it – meant any
person who was opposed to the policies of the Third Reich, and being
opposed to the policies of the Third Reich was in turn construed asmeaning the doing of an act which was contrary to the successful
conduct of the war.590

317. ICTY Trial Chambers have subsequently found that the targeted group may include
persons who are “defined by the perpetrator as belonging to the victim group due to theirclose affiliations or sympathies for the victim group,” on grounds that “it is theperpetrator who defines the victim group while the targeted victims have no influence on
the definition of their status.”591

Persons “suspected of being members of these[religious, political or ethnic] groups are also covered as possible victims of
discrimination”, and the required element of discrimination is met “even if the suspicion
proves inaccurate.”592 Where the perception of the perpetrator provides the basis of thediscrimination in question, the consequences are real for the victim even if theperpetrator’s classification may be incorrect under objective criteria.593
2.5.1.5

Nexus between the acts of the accused and the attack

318. The acts of the accused must, by their nature or consequences, objectively be a partof the attack, such that they are not wholly divorced from the context of the attack.594 A
crime which is committed before or after the main attack against the civilian population
or away from it could still, if sufficiently connected, be part of that attack. The crime

590

Judgement of Josef Altstotter and others, Law Reports of Trials of War Criminals, vol. 6, p. 81, fn. 1(noting that the death sentence against a 65 year old senile man for taking cigarettes from postal packages
was an act of extermination on political grounds, noting that the victim “was a rather useless eater, and forthis reason, he would constitute a person in the community who should be exterminated by Cuhorst’s
standards …. [I]n addition, his taking of cigarettes that were allegedly intended for soldiers certainly
constituted political opposition to the aims of the Reich as Cuhorst saw it, and justified his death sentenceon that ground.”)591
Prosecutor v. Naletilić et al., Judgement, ICTY Trial Chamber (IT-98-34-T), 31 March 2003(“Naletilić Trial Judgement”), para. 636.
592
Prosecutor v. Kvočka, Judgement, ICTY Trial Chamber (IT-98-30/1-T), 2 November 2001, para. 195(“Kvočka Trial Judgement”).
593
Naletilić Trial Judgement, para. 636, fn. 1572: “[T]his interpretation [is] consistent with the underlying
ratio of the provision prohibiting persecution, as it is the perpetrator who defines the victim group while thetargeted victims have no influence on the definition of their status. … [I]n such cases, a factual
discrimination is given as the victims are discriminated in fact for who or what they are on the basis of theperception of the perpetrator.”
594
Kunarac Appeal Judgement, para. 99.

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must not, however, be an isolated act. A crime would be regarded as an isolated act when
it is so far removed from that attack that, having considered the context andcircumstances in which it was committed, it cannot reasonably be said to have been partof the attack.595
2.5.1.6

Knowledge requirement319. It may be inferred from Article 5 of the ECCC Law that, in order to convict, an
accused must have known that there is an attack on the civilian population and that his
acts are a part thereof.596 The accused needs to understand the overall context in which
the acts took place, but need not know the details of the attack or share the purpose orgoal behind the attack.597 It is irrelevant whether the accused intended his acts to be
directed against the targeted population or merely against his victim.598 Evidence ofknowledge depends on the facts of a particular case; as a result, the manner in which thislegal element may be proved may vary according to the circumstances.599
2.5.2 Findings on chapeau requirements for Article 5 of the ECCC Law
2.5.2.1

Attack

320. The Chamber has described the broader events in Cambodia, and hence the fate that
befell the entire Cambodian population, between April 1975 and January 1979. Against
the backdrop of an international armed conflict (Section 2.1), this included the KPNLAF
entry into Phnom Penh and seizure of power on 17 April 1975, the forcible transfer ofresidents of Phnom Penh and other “Khmer Republic strongholds” to the countryside,
enforced labour under extremely difficult conditions, dismantling of the judiciary andother organs of state, and the parallel construction of institutions and structures designed

595

Kunarac Appeal Judgement, para. 100; Mrkšić Appeal Judgement, para. 41; Semanza Trial Judgement,
para. 326.
596
See Blaškić Appeal Judgement, para. 126; Prosecutor v. Gacumbitsi, Judgement, ICTR Appeals
Chamber (ICTR-2001-64-A), 7 July 2006 (“Gacumbitsi Appeal Judgement”), para. 86; Sesay Trial
Judgement, para. 90.
597
Kunarac Appeal Judgement, paras 102-103; Sesay Trial Judgement, para. 90.
598
Kunarac Appeal Judgement, para. 103.
599
Blaškić Appeal Judgement, para. 126.

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to consolidate and reinforce total control of the country by the CPK (Section 2.2). It was
squarely within this context that S-21 was created and operated (Section 2.3).
2.5.2.2

Widespread or systematic

321. Paragraph 132 of the Amended Closing Order characterised the crimes committed at
S-21 as constituting a “discrete widespread or systematic attack against the civilian
population detained therein.” The Chamber agrees with the Co-Investigating Judges thatthe magnitude and number of the crimes committed at S-21, and their organized andprolonged character ensure that taken as a whole, they were sufficient to meet therequirements of scale or systematicity for the purposes of crimes against humanity.
2.5.2.3

Directed against any civilian population

322. Although the attack on the Cambodian population occurred in parallel with aninternational armed conflict between Cambodia and Vietnam, in fact the CPK primarily
targeted its own nationals. This attack, which was mirrored within S-21, was against“enemies” of the regime, whether they were civilians or members of the former LON Nol
or RAK military personnel (Sections 2.2.5.2, 2.2.6, 2.3.3.4.2 and 2.5.3.14.1).
323. The Chamber has found that those detained at S-21 were drawn from all parts of thecountry and from all sectors of Cambodian society (Section 2.3.3.4.2). The testimony ofan extremely small number of survivors and an examination of the prisoner lists confirm
that Cambodian nationals detained and executed at S-21 included officials from DK
government offices, as well as ordinary citizens such as farmers, teachers, professors,
students, doctors, lawyers and engineers. The relatives and subordinates of thesenationals were also detained. Ordinary citizens who testified at trial and confirmed muchof this analysis included Witnesses VANN Nath, and NORNG Chanphal, and Civil
Parties BOU Meng and CHUM Mey.600
324. Although there were significant numbers of Cambodian military personnel among
the detainees, their approximate numbers and exact percentages were unable to be
600

See generally T., 29 June 2009 (VANN Nath); T., 30 June 2009 (CHUM Mey); T., 1 July 2009 (BOU
Meng); T., 2 July 2009 (NORNG Chanphal).

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determined (Section 2.3.3.4.2). Former LON Nol military personnel (and theirsubordinates and family members) were assumed to oppose the CPK. The RAK soldiers
were targeted not as part of any military offensive but as the result of internal purges
directed at both civilian and military perceived as “enemies” of the regime (Sections
2.2.5.2 and 2.5.3.14.1).
325. The Chamber finds that the attack was directed at the entire Cambodian populationand did not differentiate between military and civilian personnel. Crimes against
humanity were therefore committed against a collectivity of persons at S-21, and were
all-encompassing, engulfing both civilian and military elements without distinction. The
attack can accordingly be said to have been directed against a civilian population.
2.5.2.4

On national, political, ethnical, racial or religious grounds

326. Vietnamese prisoners of war and civilians as well as their family members and alimited number of other foreign nationals were also detained at S-21 (Sections 2.3.3.4.2
and 2.4.1.1). The Vietnamese detainees were considered to be external enemies who
threatened the CPK regime by reason of the armed conflict between Vietnam andCambodia (Section 2.1), while some of the other nationals appear to have been detainedon suspicion of spying for foreign governments as members of the CIA or KGB (Section
2.5.3.14.1).
327. There is no evidence that enables the Chamber to conclude that there was a common
linking factor among those detained, other than their perceived opposition to the CPK(Section 2.5.3.14.1). They were all classified as “enemies” by the CPK, even if in fact,
they were not opposed to the regime (Section 2.5.3.14.2). The justification for the attack
was ideologically-driven, seeking to detain, and either reform or eliminate, all real or
perceived adversaries of the CPK (Sections 2.2.5.2 and 2.2.6). The Chamber accordingly
finds that the attack in question was carried out, at a minimum, on political grounds.
2.5.2.5

Nexus between the acts of the Accused and the attack

328. The evidence satisfies the Chamber that S-21 was an integral part of the CPK
political and military structure, and was considered vital to achieving the Party’s political
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objectives (Sections 2.2.5 and 2.3.3.1). It implemented CPK policies such as the“smashing” of CPK enemies (Section 2.2.5.2). The Accused’s role as Chairman of S-21,
reporting directly to members of the Standing Committee, gave him a unique vantagepoint from which to implement this policy. The Chamber infers that he was aware of theobjectives of this policy and that S-21 was an important component in implementing it.
2.5.2.6

The Accused’s knowledge

329. The Accused was also aware of the wider attack against the Cambodian civilian
population and that politically-motivated or arbitrary extra-judicial killings werecommitted by military units throughout Cambodia and were continued in security centres,of which S-21 was an important example (Section 2.2.5.2). He implemented theprocedures introduced at M-13 to detain, interrogate, and execute every person who camethrough the gates of S-21 (Sections 2.3.2 and 2.2.5.2). He was familiar with theaccusations against the detainees, knew that a significant proportion were false, yetstrictly implemented the policy of detention and execution (Sections 2.4.1, 2.4.3 and2.5.3.14.1). The Chamber accordingly finds that the Accused knew the purposes that S21 served in supporting and implementing the attack, and intended his actions tocontribute to that purpose.
2.5.3 Law and findings on offences as crimes against humanity
330. The Amended Closing Order charges the Accused with the following crimes against
humanity: (i) murder; (ii) extermination; (iii) enslavement; (iv) imprisonment; (v) torture;(vi) rape; (vii) persecution on political grounds; and (viii) other inhumane acts.
2.5.3.1

Murder and extermination

331. Murder, a well-established crime under customary international law,601 requires thedeath of the victim resulting from an unlawful act or omission by the perpetrator.602 The

601

Prosecutor v. Vasiljević, Judgement, ICTY Trial Chamber (IT-98-32-T), 29 November 2002 (“Vasiljević
Trial Judgement”), para. 205; Sesay Trial Judgement, para. 137; Akayesu Trial Judgement, para. 587.
602
Prosecutor v. Fofana et al., Judgement, SCSL Trial Chamber (SCSL-04-14-T), 2 August 2007(“Fofana Trial Judgement”), para. 143; Prosecutor v. Kvočka et al., Judgement, ICTY Appeals Chamber

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conduct of the perpetrator must have contributed substantially to the death of thevictim.603
332. The elements of murder can be satisfied whether or not it is shown that a victim’s
body has been recovered.604 The fact of a victim’s death can be inferred circumstantially,
including from proof of the following: incidents of mistreatment directed against thevictim, patterns of mistreatment and disappearances of other individuals, a generalclimate of lawlessness at the place where the acts were allegedly committed, the length oftime that has elapsed since the person disappeared, and the fact that the victim has failed
to contact other persons that he or she might have been expected to contact, such as
family members.605 The victim’s death as a result of the perpetrator’s act or omission
must be the only reasonable inference that can be drawn from the evidence.606
333. It must be shown that the act or omission of the perpetrator was undertaken with theintent either to kill or to cause serious bodily harm in the reasonable knowledge that theact or omission would likely lead to death.607
334. Extermination, whose customary status is also undisputed,608 is characterized by anact, omission or combination of each that results in the death of persons on a massive
scale.609(IT-98-30/1-A), 28 February 2005 (“Kvočka Appeal Judgement”), para. 261; Akayesu Trial Judgement,
para. 589.
603
Brdjanin Trial Judgement, para. 382.
604
Tadić Trial Judgement, para. 240 (observing that a feature of the Balkan conflict was widespreadkillings, as well as the indifferent and callous treatment of the dead. Since these were not times ofnormalcy, it would be inappropriate to apply rules of some national systems that require the production of abody as proof of death. However, there must be evidence to link injuries received to a resulting death).
605
Krnojelac Trial Judgement, para. 327.
606
Krnojelac Trial Judgement, para. 326; Kvočka Appeal Judgement, para. 260; Fofana Trial Judgement,
para. 144.
607
Blagojević Trial Judgement, para. 556.
608
Prosecutor v. Krstić, Judgement, ICTY Trial Chamber (IT-98-33-T), 2 August 2001 (“Krstić Trial
Judgement”), para. 492.
609
Blagojević Trial Judgement para. 572; Prosecutor v. Seromba, Judgement, ICTR Appeals Chamber(ICTR-01-66-A) 12 March 2008 (“Seromba Appeal Judgement”), para. 189.

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335. The perpetrator’s role in the death of persons on a massive scale may be remote orindirect.610 Actions constituting extermination include creating conditions of life that are
aimed at destroying part of a population, such as withholding food or medicine.611
336. There is no minimum threshold for the number of victims targeted.612 Rather, thequestion of whether the requirement of scale has been met is assessed on a case-by-casebasis against all relevant circumstances.613 Nonetheless, it has been suggested that one ora limited number of killings would not be sufficient to constitute extermination.614
337. Extermination contemplates acts or omissions that are collective in nature rather
than directed towards specific individuals.615 There is however no requirement that theperpetrator intended to destroy a group or part of a group to which the victims belong.616
Knowledge of a “vast scheme of collective murder” is not an element of extermination.617
338. It must be shown that the perpetrator acted with “the intent to kill persons on a
massive scale, or to inflict serious bodily injury or create conditions of life that lead todeath in the reasonable knowledge that such act or omission is likely to cause the death ofa large number of persons.”618

610

Sesay Trial Judgement para. 130; Seromba Appeal Judgement, para. 189.
Prosecutor v. Brdjanin, Judgement, ICTY Trial Chamber (IT-99-36-T), 1 September 2004 (“Brdjanin
Trial Judgement”), para. 389; Krstić Trial Judgement, para. 498.
612
Prosecutor v. Ntakirutimana et al., Judgement, ICTR Appeals Chamber, (ICTR-96-10-A and ICTR96-17-A), 13 December 2004, para. 516; Prosecutor v. Stakić, Judgement, ICTY Appeals Chamber (IT-9724-A), 22 March 2006 (“Stakić Appeal Judgement”), para. 260.
613
Prosecutor v. Stakić, Judgement, ICTY Trial Chamber (IT-97-24-T), 31 July 2003 (“Stakić Trial
Judgement”), para. 640; Blagojević Trial Judgement, para. 573.
614
Vasiljević Trial Judgement, para. 227.
615
Vasiljević Trial Judgement, para. 227; Stakić Trial Judgement, para. 639.
616
See Vasiljević Trial Judgement, para. 227; Prosecutor v. Musema, Judgement, ICTR Appeals Chamber(ICTR-96-13-A), 16 November 2001, para. 366; Prosecutor v. Stakić, Judgement, ICTY Trial Chamber(IT-97-24-T), 31 July 2003, para. 639.
617
Stakić Appeal Judgement, para. 259.
618
Bagosora Trial Judgement, para. 2191. An earlier ICTR Judgement held that extermination may
encompass intentional, reckless, or grossly negligent acts or omissions: Kayishema et al. Trial Judgement,
para. 146. The ICTY later held intent cannot be a lower threshold than that required for murder as a crime
against humanity, and therefore proof of recklessness or gross negligence was not sufficient to hold an
accused criminally responsible for extermination: Stakić Trial Judgement, para. 642.
611

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2.5.3.2

Findings on murder and extermination

339. The Chamber finds that during the period of S-21’s operation, as the result of
deliberate and unlawful acts, S-21 and S-24 detainees were executed by S-21 staff within
the S-21 complex and at Choeung Ek (Section 2.4.1). The Chamber further finds that S21 and S-24 detainees died as the result of unlawful omissions known to be likely to leadto their death and as a consequence of the conditions of detention imposed upon them(Sections 2.4.5.1-2.4.5.4).
340. Due to the inaccuracy of the existing record, the Chamber finds that it is notpossible to quantify the precise number of the detainees who died and were executed. On
the basis of the Revised S-21 Prisoner List, the Chamber quantifies this number to be no
fewer than 12,272 detainees.619
341. Due to their massive scale, the Chamber finds that the deaths and executions whichwere illegally perpetrated upon the entire S-21 detainee population amount to both
murder and extermination.
2.5.3.3

Enslavement342. The prohibition against slavery is unambiguously part of customary internationallaw.620 Enslavement is characterised by the exercise of any or all powers attaching to theright of ownership over a person.621 Indicia of enslavement include “control of someone’s
movement, control of physical environment, psychological control, measures taken toprevent or deter escape, force, threat of force or coercion, duration, assertion of
exclusivity, subjection to cruel treatment and abuse, control of sexuality and forced
labour.”622

619

The Chamber notes that the Revised S-21 Prisoner List includes the name of Civil Party CHUM Mey
who survived his detention at S-21, amongst the 12,273 individuals listed as having been detained and thus,
with very few exceptions, executed; see “Revised S-21 Prisoner List”, E68.1, entry No. 1583; see also
Section 2.3.3.4.2
620
Krnojelac Trial Judgement, para. 353.
621
Kunarac Appeal Judgement, para. 116.
622
Kunarac Appeal Judgement, para. 119.

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343. Proof that the victim did not consent to being enslaved is not required, as
enslavement is characterised by the perpetrator’s exercise of power.623 The question ofwhether the victim has consented may however be relevant to determining if theperpetrator exercised these powers over the victim.624 The absence of consent may bepresumed in situations where the expression of consent is impossible.625
344. Forced or involuntary labour may also constitute enslavement.626 The ICTY Trial
Chamber has noted that “[w]hat must be established is that the relevant persons had noreal choice as to whether they would work.”627 A Chamber shall decide if the labour isforced or involuntary on the basis of the recognised factors outlined above.628 The
elements of the crime of enslavement may be satisfied without evidence of additional illtreatment.629
345. It must be shown that the perpetrator intentionally exercised any or all of the powers
attaching to the right of ownership.630
2.5.3.4

Findings on enslavement346. The Chamber finds that S-21 staff deliberately exercised total power and control
over the S-24 detainees and over a small number of detainees assigned to work within the
S-21 complex. These detainees had no right to refuse to undertake the work assigned tothem, and did not consent to their conditions of detention (Section 2.4.2). The Chamber
therefore finds that their forced or involuntary labour, coupled with their detention,amounted to enslavement.

623

Kunarac Appeal Judgement, para. 120.
Kunarac Appeal Judgement, para. 120.
625
Kunarac Appeal Judgement, para. 120.
626
Sesay Trial Judgement, para. 202.
627
Krnojelac Trial Judgement, para. 359; Sesay Trial Judgement, para. 202.
628
See Sesay Trial Judgement, para. 202.
629
Pohl and Others Case, Judgement of 3 November 1947, reprinted in Trials of War Criminals Before
the Nuremberg Military Tribunals under Control Council No. 10, Vol. 5, p. 970, cited in Kunarac Appeal
Judgement, para. 123: see also Sesay Trial Judgement, para. 203.
630
Kunarac Appeal Judgement, para. 116.
624

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2.5.3.5

Imprisonment

347. Imprisonment refers to the arbitrary deprivation of an individual’s liberty without
due process of law.631 The customary status of the prohibition of arbitrary imprisonment
under international law initially developed from the laws of war and is supported byhuman rights instruments.632
348. An initial deprivation of liberty will be arbitrary if no legal basis exists to justify
it.633 If national law is relied upon as a justification in this regard, it must be establishedthat the relevant provisions do not violate international law.634 If a legal basis for the
initial deprivation does exist, it must continue to exist throughout the period of
imprisonment.635 Where a lawful basis of imprisonment ceases to apply, continued
imprisonment may be considered arbitrary.636
349. Not every minor infringement of liberty forms the material element of imprisonment
as a crime against humanity; the deprivation of liberty must be of similar gravity andseriousness as the other crimes enumerated as crimes against humanity in Article 5 of the
ECCC Law.637
350. It must be shown that the perpetrator intended to arbitrarily deprive the individual ofliberty, or that he acted in the reasonable knowledge that his or her actions were likely tocause the arbitrary deprivation of physical liberty.638

631

Prosecutor v. Simić et al., Judgement, ICTY Trial Chamber (IT-95-9-T), 17 October 2003, para. 64;
Prosecutor v. Kordić et al., Judgement, ICTY Trial Chamber (IT-95-14/2-T), 26 February 2001 (“Kordić
Trial Judgement”), para. 302; Krnojelac Trial Judgement, para. 113.
632
Krnojelac Trial Judgement, para. 109; Kordić Trial Judgement, paras 299-300.
633
Krnojelac Trial Judgement, para. 113-114.
634
Krnojelac Trial Judgement, para. 114; Prosecutor v. Ntagerura, Judgement, ICTR Trial Chamber(ICTR-99-46-T), 25 February 2004 (“Ntagerura Trial Judgement”), para. 702.
635
Krnojelac Trial Judgement, para. 114.
636
Krnojelac Trial Judgement, para. 114.
637
See Ntagerura Trial Judgement, para. 702. This finding contrasts with the earlier judgement of
Krnojelac, where the ICTY Trial Chamber held that “any form of arbitrary physical deprivation of libertyof an individual may constitute imprisonment under Article 5(e) of the [ICTY] Statute as long as the otherrequirements of the crime are fulfilled’’; Krnojelac Trial Judgement, para 112.
638
Simić et al. Trial Judgement, para. 64; Krnojelac Trial Judgement, para. 115.

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2.5.3.6

Findings on imprisonment

351. The Chamber finds that detainees at S-21 were intentionally and arbitrarily
imprisoned with no legal basis. There was no legal or judicial system and therefore those
imprisoned had no access to the procedural safeguards enabling them to challenge theirarrest, detention or ultimate execution (Section 2.4.3). The imprisonment of the verylarge numbers of detainees at all sites was a serious breach of their rights to liberty, on asimilar scale of gravity to other crimes against humanity.
2.5.3.7

Torture352. The prohibition on torture has acquired the status of a peremptory or non-derogableprinciple of international law.639 As such, it is not possible to authorize torture via alegislative, administrative or judicial act.640
353. The crime of torture is proscribed and defined by numerous international
instruments, including the 1975 United Nations General Assembly Declaration on
Torture, adopted by consensus,641 and the 1984 Convention against Torture.642 The
definition in the 1984 Convention against Torture,643 which closely mirrors that of the1975 General Assembly Declaration, has been accepted by the ICTY as being declaratoryof customary international law.644 The Chamber accordingly finds that this definition hadin substance been accepted as customary by 1975.

639

Prosecutor v. Furundzija, Judgement, ICTY Trial Chamber (IT-95-17/1), 10 December 1998(“Furundzija Trial Judgement”), paras 151-153; Krnojelac Trial Judgement, para. 182.
640
Furundzija Trial Judgement, paras 155-156.
641
Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment, UNGA Res. 3452 (XXX), of 9 December 1975.
642
Convention Against Torture, 10 December 1984, 1465 UNTS 85; see also The Universal Declarationof Human Rights, UNGA Res. 217 (III), of 10 December 1948, Article 5.
643
Article 1 of the 1984 Torture Convention defines torture in the following terms: “Any act by which
severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes
as obtaining from him or a third person information or a confession, punishing him for an act he or a third
person has committed or is suspected of having committed, or intimidating or coercing him or a third
person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by orat the instigation of or with the consent or acquiescence of a public official or other person acting in an
official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful
sanctions.”
644
Prosecutor v. Delalić et al., Judgement, ICTY Trial Chamber (IT-96-21-T), 16 November 1998(“Čelebići Trial Judgement”), para. 459; Kunarac Appeal Judgement, para. 146; Prosecutor v. Furundzija,

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354. Torture comprises the infliction, by an act or omission, of severe pain or suffering,whether physical or mental.645
355. In determining whether an act or omission constitutes severe pain or suffering, theChamber is required to consider all subjective and objective factors.646 Objective factors
include the severity of the harm inflicted. Subjective criteria may include the age, sex,
state of health of the victim, or the physical or mental effect of treatment on a particular
victim.647 In addition, the nature and context of the infliction of pain, the premeditationand institutionalization of the ill-treatment, the physical condition of the victim, themanner and method used, and the position of inferiority of the victim have all been
considered relevant factors.648 The consequences of the act or omission need not be
visible on the victim to constitute torture,649 and nor is there a requirement that the injury
be permanent.650 Further, there is no exhaustive classification of the acts that may
constitute torture.651 Acts that have been considered sufficiently severe as to constitutetorture may arise from conditions imposed upon detention and have included beating,sexual violence, prolonged denial of sleep, food, hygiene and medical assistance, as wellas threats to torture, to rape or to kill relatives.652 Certain acts are considered by theirnature to constitute severe pain and suffering.653 These acts include rape654 and themutilation of body parts.655

Judgement, ICTY Appeals Chamber (IT-95-17/1-A), 21 July 2000 (“Furundzija Appeal Judgement”), para.
111; Furundzija Trial Judgement, paras 160-161; see also Decision on Appeal against the Closing Order,
paras 66-67.
645
Kunarac Appeal Judgement, para. 142; Ntagerura Trial Judgement, para. 703.
646
Kvočka Trial Judgement, para. 143.
647
Kvočka Trial Judgement, para. 143.
648
Krnojelac Trial Judgement, para. 182.
649
Kunarac Appeal Judgement, para. 150.
650
Kvočka Trial Judgement, para. 148; Brdjanin Trial Judgement,, para. 484.
651
Čelebići Trial Judgement, para. 469.
652
Čelebići Trial Judgement, para. 467; see also Kvočka Trial Judgement, para. 151.
653
Kunarac Appeal Judgement, para. 150.
654
Brdjanin Trial Judgement, para. 485; Kunarac Appeal Judgement, para. 150.
655
Kvočka Trial Judgement, para. 144.

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356. The crime of torture requires that the act or omission is inflicted in order to attain acertain result or purpose.656 Such purposes include obtaining information or a confession,or punishing, intimidating, or coercing the victim or a third person, or discriminating, on
any ground, against the victim or a third person.657 These purposes do not constitute an
exhaustive list under customary law and are instead representative.658 There is norequirement that the act is committed exclusively for a particular purpose.659 A particularpurpose must be “part of the motivation behind the conduct, and it need not be thepredominant or sole purpose”660
357. The 1984 Convention Against Torture requires that the act of torture is undertaken
at the instigation of a public official or “other person acting in an official capacity”, orwith that person’s consent or acquiescence.661 The ICTY has since clarified that there is
no requirement under contemporary international humanitarian law for the involvementof a State official in acts constituting torture,662 although the fact that a perpetrator acted
in an official capacity may be an aggravating factor relevant to sentencing.663 The
Chamber finds, however, that in 1975, the involvement of a State official was arequirement for an act to constitute torture under customary international law.

656

Krnojelac Trial Judgement, para. 180. Under the ICC Statute, there is no requirement that theperpetrator acted with any specific purpose: Rome Statute of the International Criminal Court, 17 July 1998
(entered into force 1 July 2002), 2187 UNTS 90, Article 7(1)(f), (7)(2)(e).
657
Kunarac Trial Judgement, para. 485; see also Krnojelac Trial Judgement, para. 184. The particularpurpose of coercing the individual or a third person “for any reason based on discrimination of any kind”
appears in the 1984 Convention Against Torture while it is not contained in the 1975 General Assembly
Declaration: Convention Against Torture, 10 December 1984, 1465 UNTS 85, Article 1(1).
658Čelebići Trial Judgement, para. 472.
659
Kunarac Trial Judgement, para. 486.
660
Kunarac Trial Judgement, para. 486.
661
Convention Against Torture, 10 December 1984, 1465 UNTS 85, Article 1(1).
662
Kunarac Trial Judgement, paras. 470, 496 (noting the different aims of human rights law (asrestraining the excesses of the State) and humanitarian law (as a means to reduce violence duringhostilities) and finding that there is no requirement under international humanitarian law for the
involvement of a State official in acts constituting torture, even if this may be required under human rightslaw); see further Kunarac Appeal Judgement, para. 147 (“the definition of torture in the Torture
Convention reflects customary international law as far as the obligation of States is concerned, but does notwholly reflect customary international law regarding the meaning of the crime of torture generally”).
Earlier judgements held that at least one actor must be a public official or be acting in a non-private
capacity (see e.g. Furundzija Appeal Judgement, para. 111; Akayesu Appeal Judgement, para. 593).
663
Kunarac Trial Judgement, para. 494.

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358. The pain and suffering amounting to torture must be inflicted intentionally.664
2.5.3.8

Findings on torture

359. The Chamber finds that staff at S-21 and S-24 used interrogation techniques on
detainees, with the intention of causing severe pain and suffering (Section 2.4.4.1.1).
These techniques were applied in an environment of extreme fear where threats wereroutinely put into practice and caused detainees severe pain and suffering, both physicaland mental. Given their position in the State apparatus, the Chamber finds that the S-21
interrogators and S-24 staff who perpetrated acts of torture acted in an official capacity.
360. The Chamber finds that the following interrogation techniques, as applied at S-21,
inflicted severe physical pain or mental suffering for the purpose of obtaining a
confession or of punishment, and constituted torture: severe beating, electrocution,
suffocation with plastic bags, water-boarding, puncturing, inserting needles under or
removing finger and toe nails, cigarette burns, forcing detainees to pay homage to imagesof dogs or objects, forced feeding of excrement and urine, direct or indirect threats totorture or kill the detainees or members of their family, the use of humiliating language,
plunging detainees’ heads in a water jar and lifting by the hands tied in the back, and one
proven instance of rape. The Chamber further finds that this list is not exhaustive and that
other torture techniques may have been carried out.
2.5.3.9

Rape

361. Rape has long been prohibited in customary international law and has been
described as “one of the worst suffering a human being can inflict upon another.”665
362. Rape is the sexual penetration, however slight of the vagina or anus of the victim by
the penis of the perpetrator or any other object used by the perpetrator; or the mouth of664

Krnojelac Trial Judgement, para. 130; Furundzija Trial Judgement, para. 162.
Kunarac Trial Judgement, para. 655; Sesay Trial Judgement, para. 144; Article II(1)(c) of Control
Council Law No. 10 (1945), reprinted in Trials of War Criminal Before the Nuremberg Military Tribunals
Under Control Council Law No. 10, Vol. I, p. 7; Article 44 of the Instructions for the Government of Armiesof the United States in the Field (Lieber Code), 24 April 1863; Article 27 of Geneva Convention IV.

665

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the victim by the penis of the perpetrator, where such sexual penetration occurs without
the consent of the victim.666
363. Most cases of rape as a crime against humanity will be committed in coercive
circumstances in which true consent will not be possible.667 Absence of consent may beevidenced by the use of force. Neither force nor threat of force by the perpetrator is anelement per se of rape, as there are factors other than force which would render an act ofsexual penetration non-consensual, and there is no requirement of resistance on the partof the victim.668
364. The social stigma attaching to rape victims in certain societies might render any
proof of this crime difficult. The international jurisprudence has therefore accepted thatcircumstantial evidence may be used to demonstrate rape.669
365. The requisite intention for rape is that the perpetrator acted with the intent to “effectthis sexual penetration, and the knowledge that it occurs without the consent of thevictim.”670
2.5.3.10

Findings on rape as torture

366. While rape comprises a separate and recognized offence both within the ECCC Law
and international criminal law, it is undisputed that rape may also constitute torture where
all other elements of torture are established (Section 2.5.3.7). The Chamber considers
that the conduct alleged in the Amended Closing Order to constitute rape clearly satisfy
666

Kunarac Appeal Judgement, para. 127; Semanza Trial Judgement, paras 344-345. Sesay Trial
Judgement, paras 145-146. An alternative conceptual definition was propounded by the ICTR Trial
Chamber in Akayesu, being “a physical invasion of a sexual nature, committed on a person undercircumstances which are coercive”: Akayesu Trial Judgement, para. 598. However, the ICTY Trial
Chamber in Furundžija decided a more precise definition would better accord with the “criminal law
principle of specificity” and so adopted the more technical definition also employed above: Furundzija
Trial Judgement, para. 177. The Furundžija formulation has been applied frequently and adopted by the
ICTY Appeals Chamber. The ICTR Trial Chamber in Muhimana found the two formulations were “notincompatible or substantially different in their application”: Prosecutor v. Muhimana, Judgement and
Sentence, ICTR Trial Chamber (ICTR-95-1B-T), 28 April 2005, para. 550.
667
Kunarac Appeal Judgement, para. 130; Kvočka Trial Judgement, para 178.
668
Kunarac Appeal Judgement, paras 128-129.
669
Prosecutor v. Muhimana, Judgement, ICTR Appeals Chamber, (ICTR-95-1B-A), 21 May 2007, para.
49; Sesay Trial Judgement, para. 149.
670
Kunarac Appeal Judgement, paras 127-129; Bagosora Trial Judgement, para. 2200.

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the legal ingredients of both rape and also of torture.671 It has further evaluated theevidence in support of this charge to be credible (Section 2.4.4.1.1). The Chamberconsiders this instance of rape to have comprised, in the present case, an egregious
component of the prolonged and brutal torture inflicted upon the victim prior to her
execution and has characterized this conduct accordingly.
2.5.3.11

Other inhumane acts

367. Other inhumane acts comprise a residual offence which is intended to criminalise
conduct which meets the criteria of a crime against humanity but does not fit within oneof the other specified underlying crimes.672 The act or omission must be “sufficiently
similar in gravity to the other enumerated crimes” to constitute an inhumane act.673 The
customary status of this crime is also well established.674
368. For an inhumane act to be established, it must be proved that the victim sufferedserious harm to body or mind, and that the suffering was the result of an act or omissionof the perpetrator.675
369. The seriousness of the act is to be assessed on a case-by-case basis, taking accountof individual circumstances.676 These circumstances may include “the nature of the act oromission, the context in which it occurred, the personal circumstances of the victim
including age, sex and health, as well as the physical, mental and moral effects of the act
upon the victim.”677 There is no requirement that the suffering have long term effects,
although this may be relevant to the determination of the seriousness of the act.678

671

Amended Closing Order, paras 136, 137.
Kordić Appeal Judgement, para. 117; Bagosora Trial Judgement, para. 2218.
673
Naletilić Trial Judgement, para. 247; Prosecutor v. Niyitegeka, Judgement, ICTR Trial Chamber(ICTR-96-14-T), 16 May 2003 (“Niyitegeka Trial Judgement”), para. 460.
674
Čelebići Trial Judgement, para. 517; Prosecutor v. Brima et al., Judgement, SCSL Appeals Chamber(SCSL-04-16-A), 22 February 2008 (“Brima Appeal Judgement”), para. 183.
675
Kordić Appeal Judgement, para. 117.
676
Kordić Appeal Judgement, para. 117; Kayishema et al. Trial Judgement, paras 148-151.
677
Prosecutor v. Vasiljević, Judgement, ICTY Appeals Chamber (IT-98-32-A), 25 February 2004(“Vasiljević Appeal Judgement”), para. 165.
678
Vasiljević Appeal Judgement, para. 165; Blagojević Trial Judgement, para. 627.
672

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370. Examples of inhumane acts which have been found to constitute crimes against
humanity include forcible displacement and forcible transfer,679 severe bodily harm,680
detention in brutal and deplorable living conditions,681 as well as beatings and other actsof violence.682
371. The requisite intention to inflict inhumane acts is satisfied when the perpetrator had
the intention to inflict serious physical or mental suffering or to commit a serious attack
upon the human dignity of the victim, or knew that the act or omission was likely tocause serious physical or mental suffering or a serious attack upon the human dignity.683
This intention must be found to have existed at the time of the act or omission.684
2.5.3.12

Findings on other inhumane acts

372. The Chamber finds that S-21 detainees suffered serious bodily and mental harmfrom the deplorable conditions of detention deliberately imposed upon them by S-21
staff. These conditions included shackling and chaining, blindfolding and handcuffing
when being moved outside the cells, severe beatings and corporal punishments, detention
in overly small or overcrowded cells, lack of adequate food, hygiene and medical care
(Section 2.4.5). Detainees were also subjected to blood drawing and medical tests(Section 2.4.5.5).
373. These acts and omissions routinely degraded and dehumanized the detainees,leaving them in a state of constant fear. They have the same gravity as the other
underlying offences of crimes against humanity and qualify as separate acts that fallwithin the category of other inhumane acts.

679

Prosecutor v. Blagojević et al., Judgement, ICTY Trial Chamber (IT-02-60-T), 17 January 2005(“Blagojević Trial Judgement”), paras. 629-630; Krstić Trial Judgement, para. 523; Stakić Trial Judgement,
para. 723.
680
Kvočka Trial Judgement, para. 208
681
Krnojelac Trial Judgement, para. 133.
682
Kvočka Trial Judgement, para. 208.
683
Niyitegeka Trial Judgement, para. 460; Kordić Appeal Judgement, para. 117.
684
Blagojević Trial Judgement, para. 628; Krnojelac Trial Judgement, para. 132; Fofana Trial Judgement,
para. 150.

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2.5.3.13

Persecution on political grounds374. Persecution has long been proscribed as a crime under customary internationallaw.685 The crime of persecution has in the case law of the ad hoc Tribunals come todescribe large-scale and discriminatory offending in situations involving massive
criminality but which may not entail the necessary physical destruction or exterminatory
intent required for genocide.686
375. Whilst an offence charged before the Nuremberg and Tokyo Tribunals, the elementsof this offence received limited elaboration prior to the establishment of the ad hoc
Tribunals.687 It has instead fallen to the international jurisprudence post-1992 to outline
the contours of this offence. As the Kordić Trial Judgement notes:
Neither international treaty law nor case law provides a comprehensive
list of illegal acts encompassed by the charge of persecution, andpersecution as such is not known in the world’s major criminal justicesystems. The Trial Chamber agrees […] that the crime of persecution
needs careful and sensitive development in light of the principle ofnullum crimen sine lege.688

685

See e.g., Agreement for the Prosecution and Punishment of the Major War Criminals of the European
Axis, and Charter of the International Military Tribunal, 8 August 1945, 82 UNTS 279, Article 6(c); Tokyo
Charter, Annexed to the Special Proclamation of 19 January 1946 by the Supreme Commander of theAllied Powers in the Far East, Article 5(c); Control Council Law No. 10 (1945), Article 5(c) reprinted in
Trials of War Criminal Before the Nuernberg Military Tribunals Under Control Council Law No. 10, Vol.
I, pp. XVI-XIX.
686
See Prosecutor v. Kupreškić et al., Judgement, ICTY Trial Chamber (IT-95-16-T), 14 January 2000(“Kupreškić et al. Trial Judgement”), para. 636 (“persecution as a crime against humanity is an offence
belonging to the same genus as genocide. Both persecution and genocide are crimes perpetrated against
persons that belong to a particular group and who are targeted because of such belonging. In bothcategories what matters is the intent to discriminate […]. While in the case of persecution thediscriminatory intent can take multifarious inhumane forms and manifest itself in a plurality of actions
including murder, in the case of genocide that intent must be accompanied by the intention to destroy, inwhole or in part, the group to which the victims of the genocide belong. Thus, it can be said that, from theviewpoint of mens rea, genocide is an extreme and most inhuman form of persecution.”)687
See e.g., Judgement of Josef Altstotter et al., Trials of War Criminals Before the Nuernberg Military
Tribunals Under Control Council Law No. 10 (1950), Vol. VI, p. 954. For a review of the relevant
Nuremberg-era jurisprudence as well as subsequent jurisprudence from national courts, see Tadić Trial
Judgement, paras 699-710; Kupreškić et al. Trial Judgement, paras 586-614.
688
See Kordić Trial Judgement, para. 192 (noting that the international crime of persecution “has neverbeen comprehensively defined” and citing inter alia Tadić Trial Judgement, para. 694).

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376. The Chamber finds that as early as 1975, persecution nonetheless clearly included
an “act or omission which […] discriminates in fact and which denies or infringes upon afundamental right laid down in international customary or treaty law.”689
377. This act or omission must actually discriminate: a discriminatory intention is not
sufficient, the act or omission must have discriminatory consequences.690 An act is
discriminatory when a victim is targeted because of the victim’s membership in a groupdefined by the perpetrator on specific grounds, namely on a political, racial or religious
basis.691 In this case, the Accused has been indicted only for persecution on politicalgrounds.692
378. Persecutory acts include (but are not limited to) the other underlying offences forcrimes against humanity,693 for example murder, extermination, enslavement,
imprisonment and torture.694 While no comprehensive enumeration of other acts
constituting persecution is possible, relevant examples include harassment, humiliationand psychological abuse, confinement in inhumane conditions, cruel and inhumane
treatment, deportation, forcible transfer and forcible displacement, and forced labour
assignments.695 Such acts must be of “equal gravity or severity” to the specified

689

Bagosora Trial Judgement, para. 2208; Prosecutor v. Ruggiu, Judgement and Sentence, ICTR Trial
Chamber (ICTR-97-32-1), 1 June 2000, para. 21; Prosecutor v. Simic et al., Judgment, ICTY Appeals
Chamber (IT-95-9-A), 28 November 2006 (“Simić et al. Appeal Judgement)”, para. 177.
690
Blagojević Trial Judgement, para. 583.
691
Blagojević Trial Judgement, para. 583; see also Kvočka Trial Judgement, para. 195 and Kvočka Appeal
Judgement, para. 363 (“The Trial Chamber found that all the detainees in the Omarska camp were nonSerbs or persons suspected of sympathizing with non-Serbs. …. [T]here is no doubt that the underlying
crimes were committed upon discriminatory grounds, and had discriminatory effects.”)
692
Amended Closing Order, para. 141.
693
Semanza Trial Judgement, paras 347-349; see also Kupreškić et al. Trial Judgement, paras 609-614(concluding that the notion of persecution before the Nuremberg Tribunal included acts others than those
offences specifically enumerated as crimes against humanity).
694
Blagojević Trial Judgement, paras 583, 585; Kordić Appeal Judgement, para. 114 and Kupreškić et al.
Trial Judgement, para. 615.
695
Kvočka Appeal Judgement, paras. 325 and 335; Blagojević Trial Judgement, para. 586; Blaškić Appeal
Judgement, para. 153; Simić et al. Trial Judgement, para. 85. For a general discussion on the acts
encompassing persecution and a review of the relevant Nuremberg-era jurisprudence as well as subsequent
jurisprudence from national courts, see Tadić Trial Judgement, paras 699-710; Kupreškić et al. Trial
Judgement, paras 586-615.

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underlying offences to constitute persecution696 and must be evaluated not in isolation but
in context, by looking at their cumulative effect.697 Not every denial of a human rightmay constitute a crime against humanity, and to reach the level of gravity required the act
or omission generally needs to be a gross or blatant denial of a fundamental humanright.698
379. The perpetrator must have carried out the act or omission “deliberately with theintention to discriminate on one of the listed grounds.”699 This requires “evidence of a
specific intent to discriminate on political, racial or religious grounds.”700 There is norequirement in law that the perpetrator possess a “persecutory intent” over and above a
discriminatory intent. The existence of a “specific intent to cause injury to a human being
because he belongs to a particular community or group” is sufficient to establish theintent required for the crime of persecution.701 This specific intent is not a legal elementof the other underlying crimes against humanity.702
380. The requisite discriminatory intent may not be inferred directly from the generaldiscriminatory nature of an attack, but may be inferred from this context if “in view ofthe facts of the case, circumstances surrounding the commission of the alleged acts
substantiate the existence of such intent.”703
2.5.3.14

Findings on persecution on political grounds

381. The offences charged as persecution in the current case are all recognizedinternational crimes of significant gravity, which violated the fundamental rights of the S21 detainees and which have comprised before other international tribunals the696

Kordić Appeal Judgement, para. 671; Blaškić Appeal Judgement, para. 131; Prosecutor v. Krnojelac,
Judgement, ICTY Appeals Chamber (IT-97-25-A), 17 September 2003 (“Krnojelac Appeal Judgement”),
para. 199.
697
Kupreškić et al. Trial Judgement, para. 622; Semanza Trial Judgement, para. 349; Blaškić Appeal
Judgement, para. 135.
698
Blagojević Trial Judgement, para. 580; Prosecutor v. Ruggiu, Judgement and Sentence, ICTR Trial
Chamber (ICTR-97-32-1), 1 June 2000, para. 21.
699
Bagosora Trial Judgement, para. 2208; Blaškić Appeal Judgement, para. 131; Kordić Appeal
Judgement, para. 101.
700
Kvočka Appeal Judgement, para. 460.
701
Blaškić Appeal Judgement, para. 165.
702
Tadić Appeal Judgement, para. 305.
703
Krnojelac Appeal Judgement, para. 184; Blaškić Appeal Judgement, para. 164.

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ingredients of the offence of persecution (Section 2.5.3.13). They are alleged in this caseto cumulatively amount to persecution on grounds that the Accused’s criminal conduct inrelation to them was accompanied by a specific intent to discriminate on politicalgrounds.
2.5.3.14.1

The discriminatory policies underlying theseoffences

382. The Accused admitted that anyone sent to S-21 and perceived as a political
opponent of the Party was singled out as an enemy and destined for execution.704 He
further stated that the Party Centre decided who were its enemies and had to beeliminated, irrespective of whether or not this assessment was correct.705 It has beenshown that S-21 sought to unearth any conspiracy against the CPK and then to provide
material to confirm the leadership’s suspicions. S-24 was similarly tasked with “reeducating” the detainees, particularly concerning their stance towards the CPK.706
383. Regarding the basis of the policies implemented at S-21, the Chamber notes that thefirst detainees at S-21 were former LON Nol officials and soldiers arrested immediately
after the Khmer Rouge took power and executed because of their allegiance with theprevious regime.707 Intellectuals, students and diplomatic staff living abroad who wererecalled to Cambodia were on arrival sent to re-education camps or to S-21. According toExpert David CHANDLER, they were suspected by the Party of having been in contact
with foreigners or of having formed alliances with foreign powers.708 Other intellectuals
within Cambodia were also initially sent to the North West Zone and subsequently
purged at S-21.709

704

T., 1 July 2009 (Accused), pp. 90-91.
T., 22 June 2009 (Accused), pp. 82-83; see also “Photograps”, E3/379; T., 10 June 2009 (Accused), p.
56; T., 22 June 2009 (Accused), p. 103; see also T., 6 August 2009 (David CHANDLER) p. 24.
706
T., 6 August 2009 (David CHANDLER), pp. 22, 24, 45. T., 17 June (Accused), p. 21; T., 24 June 2009
(Accused), p. 17.
707
T., 15 June 2009 (Accused), p. 7.
708
T., 12 August 2009 (Accused), pp. 41-43; T., 16 July 2009 (HIM Huy), pp. 20-22; T., 20 July 2009
(HIM Huy), pp. 7-8; T., 12 August 2009 (BOU Thon), p. 36-38; see also T., 27 May 2009 (Craig
ETCHESON), p. 66.
709
T., 6 August 2009 (David CHANDLER), pp. 18-19.
705

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384. Fundamental to the implementation of DK policies was the “30 March 1976
Directive”, which provided authority to execute those suspected of being enemies of theParty (Section 2.2.6). As the revolution progressed, the Party Centre began to perceive
enemies everywhere and became more concerned about internal rather than external
enemies.710 At S-21, the word “enemy” became synonymous with anyone suspected ofbetraying the Party.711
385. From 1976 onwards, a large number of S-21 detainees were combatants and cadresof DK and CPK suspected because of their biographies or relationship with otherperceived Party enemies.712 Staff of S-21 were also increasingly detained and purged
upon being accused of sabotaging the Party, after being implicated in confessions or
simply for committing mistakes while working.713 Prominent individuals, mainly highranking CPK members, were arrested or executed upon the direct order of the Standing
Committee.714
386. Foreigners, including Vietnamese nationals, as well as some Buddhist monks andmembers of Cambodian ethnic minorities, were also detained at S-21 as a real or
perceived threat to the Party. Although some Vietnamese nationals were arrested anddetained initially due to the armed conflict with Vietnam, the Accused indicated that theCPK policy concerning Vietnamese nationals, as well as religious and other minorities,
was to regard all such individuals as “spies” acting against the Party.715 Conversely, in arare departure from its policies, members of a delegation of FULRO were released from
S-21 upon the order of the Party Centre once they were instead deemed to be politicalsupporters.716 Individuals mistakenly arrested and detained were otherwise executed topreserve the secrecy of S-21 operations.717

710

T., 6 August 2009 (David CHANDLER), p. 14.
T., 4 August 2009 (LACH Mean), p. 20.
712
T., 15 June 2009 (Accused), pp. 7-8.
713
T., 11 August 2009 (SAOM Met), pp. 16-17; T., 22 July 2009 (PRAK Khan), pp. 49-51; T., 20 July2009 (HIM Huy), pp. 49-52; T., 15 June 2009 (Accused), pp. 8-9.
714
T., 22 June 2009 (Accused), p. 28; see also T., 23 June 2009 (Accused), p. 29; T., 21 July 2009 (PRAK
Khan), p. 65.
715
T., 10 June 2009 (Accused), pp. 23-27, 52-57.
716
T., 10 June 2009 (Accused), pp. 27-30.
717
T., 6 August 2009 (David CHANDLER), pp. 26-29, 113-114.
711

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387. Detainees were typically accused of involvement with the CIA or KGB intelligenceagencies or with the Vietnamese government.718 However, these expressions were
eventually used at S-21 as catch-all phrases for enemies of the Party.719 It was important
only that detainees admitted to being enemies and name “strings of traitors”.720
388. By the end of the regime, all individuals not supportive of the regime wereconsidered to be its political enemies and were guilty simply by virtue of having beenaccused.721 The process of elimination of Party enemies turned into paranoia andeventually contributed to the destruction of the CPK itself.722 Expert David CHANDLER
agreed that S-21 operations were vital to the CPK objective of controlling its enemies.723
It was also his view that the revolution required “headlong enthusiasm” and did notprovide any opportunity to hesitate or contradict its leadership.724
2.5.3.14.2

Discriminatory consequences of these policies

389. The Chamber has in essence found that any individual detained at S-21, considered
rightly or wrongly to be connected to any political group other than the CPK andtypically with some class background to which it objected, was a target of discrimination.
The Chamber has previously found the motivation behind CPK policy at S-21 to be akinto that identified by other international tribunals as amounting to discrimination onpolitical grounds (Section 2.5.1.4).

718

T., 16 June 2009 (Accused), pp. 71-74; T., 30 June 2009 (CHUM Mey), p. 24; T., 1 July 2009 BOU
Meng), pp. 27-28.
719
T., 30 June 2009 (Accused), p. 76; T., 16 June 2009 (Accused), pp. 70-73; see also T., 6 August 2009
(David CHANDLER), pp. 16, 28-29.
720
T., 6 August 2009 (David CHANDLER), pp. 33, 51-54.
721
T., 6 August 2009 (David CHANDLER), pp. 21-23, 27, 113-114.
722“Voices from S-21 - Terror and History in Pol Pot's Secret Prison” (book) by David CHANDLER,
E3/427, p. 75, ERN (English) 00192754: “Reigns of terror and continuous revolutions (in Democratic
Kampuchea the two phenomena overlapped) require a continuous supply of enemies. When these enemies
are embedded in a small, inexperienced political party, ethnically indistinguishable from the majority of the
population, attempting to purge all its enemies can have disastrous effects. As Duch and his colleagues did
what they were told, they undermined Cambodia's military effectiveness, dismantled the administrative
structure of the country, and destroyed the Party. The killing machine at S-21 had no brakes because theparanoia of the Party Centre had no limits”; see also T., 6 August 2009 (David CHANDLER), p. 22.
723
T., 6 August 2009 (David CHANDLER), p. 22 (citing “Voices from S-21 - Terror and History in Pol
Pot's Secret Prison” (book) by David CHANDLER, E3/427, p. 75, ERN (English) 00192754, ).
724
T., 6 August 2009 (David CHANDLER), pp. 75-76; see also T., 2 September 2009 (Accused), pp. 7677, 79.

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390. It was the Party Centre which defined the nature and composition of the targetedgroups, encapsulating all real or perceived political opponents, including their close
relatives or affiliates (Sections 2.2.5.2, 2.2.6 and 2.5.3.14.1). While many of theseoffences were perpetrated against individuals merely perceived to be enemies of the
CPK, the Chamber finds that all victims suffered the same grave discriminatory
consequences of acts perpetrated in furtherance of this specific discriminatory intent.
2.5.3.14.3

The Accused’s specific intent

391. The Chamber must determine whether, in relation to these acts, the Accused
possessed the specific discriminatory intent required to support conviction for persecution.
392. The Chamber finds by a majority (Judge CARTWRIGHT dissenting) that the
Accused shared the intent motivating CPK policy to eliminate all political enemies as
identified by the Party Centre, and to imprison, torture, execute and otherwise mistreat S21 detainees on political grounds.
2.5.3.14.4

Opinion of the majority

393. The evidence at trial showed, and the Accused himself admitted, that heconsciously, willingly and zealously sought to implement the CPK policy to eliminate allpolitical enemies as identified by the Party Centre and to imprison, torture, execute andmistreat S-21 detainees on political grounds.725
394. The Accused knew that not all those held at S-21 were in fact enemies of the Party,
but that they were in any event detained, interrogated and executed.726 Despite this, heunquestioningly carried out all tasks required of him, and managed S-21 operations in a
way which ensured that all detainees, including those merely perceived to be enemies of
the CPK, suffered the same grave consequences of acts perpetrated in furtherance of thisspecific discriminatory intent.
725

T., 16 September 2009 (Accused), pp. 42-43 (admission of having implemented “in a devoted andmerciless fashion” the persecution by the CPK of detainees at S-21); see also T., 1 April 2009 (Agreed
Facts), pp. 64-65; T., 23 June 2009 (Accused), pp. 24, 48-49.
726
T., 22 June 2009 (Accused), p. 102; T., 4 August 2009 (LACH Mean), pp. 35-36; T., 6 August 2009
(David CHANDLER), pp. 25-29.

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395. Using all possible means, including torture, the Accused strove assiduously to
implement CPK ideology. He continuously provided to his superiors the names of all
persons whom he well understood would then inevitably be considered as traitors andpolitical enemies. In so doing, he not only implemented discriminatory CPK policies but
influenced the definition of the groups subjected to them. The Accused acknowledgedthat he instructed his staff to regard persons arrested by Angkar as enemies727, anddescribed his role as “eradicat[ing] their proper vision and … indoctrinat[ing] them withcriminal ideology.”728 He also, without mercy, ordered the execution of all the detainees
once they confessed to his satisfaction their guilt as opponents of the Revolution. He waswell aware that these confessions would be used to arrest still more political enemies, andfor propaganda purposes. He used his discretion, as Secretary of the S-21 Committee toorder the transfer of his staff to S-24 for re-education, and as Chairman of S-21 toinfluence and facilitate his superiors’ decisions to arrest and smash S-21 staff whom heperceived as enemies on the basis of their behaviour, their biography or their implication
in a detainee’s confession. He also recruited young and impressionable individuals withsuitable political characteristics, namely poor and uneducated peasants who were easier
to indoctrinate.729
396. The majority of the Chamber finds that the Accused’s conduct demonstrates his
specific intent to target his victims because they belonged to the group targeted on thebasis of the discriminatory CPK policy implemented at S-21. The overwhelming
inference from the totality of evidence at trial is therefore that the Accused possessed thespecific intent required for the offence of persecution. The Chamber recalls that there is
no requirement in law that the perpetrator possess a persecutory intent over and above
this necessary discriminatory intent (Section 2.5.3.13).

727

T., 2 September 2009 (Accused), pp. 80-81; T., 27 June 2009 (Accused), p. 17; see also T., 16
September 2009 (Accused), pp. 37-38; see also T., 21 July 2009 (PRAK Khan), p. 18; T., 4 August 2009
(LACH Mean), p. 20.
728
T., 2 September 2009 (Accused), pp. 81-82.
729
T., 27 April 2009 (Accused), pp. 82-83 (admitting that only M-13 staff or those who were recruited byhim and who had good biographies were not affected by the purges); see also Section 2.3.3.5.1.

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2.5.3.14.5

Dissenting opinion of Judge Cartwright397. I agree with my colleagues in the analysis of the law and in the factual analysis of
the context within which the Accused as Chairman of S-21 managed its operations. I
differ when considering the inferences to be drawn from his implementation of CPK
policies at S-21.
398. I am in complete agreement that the Accused assiduously implemented CPK
policies to detain, interrogate, and, where he deemed it appropriate, to torture and thenexecute all those imprisoned at S-21. I also agree that the CPK policy was discriminatory
on political grounds. The Accused knew that not all detainees held at S-21 were in factenemies of the Party, but that many were in any event detained, interrogated andexecuted.730 He also knew that a large number of the confessions completed by thedetainees were partially or wholly incorrect and that many confessed wrongly to activities
or membership of suspected groups such as the CIA or KGB.
399. In reaching my view of the facts, I place emphasis on the unanimous finding that it
was the CPK that identified “enemies” and for the most part ordered their arrest. I also
note that the Accused was unaware of the highly confidential 30 March Directive andcould not therefore be said to share its policy.731 His task, which he accepted as a loyal
and efficient member of the Party, was to implement unquestioningly all tasks required ofhim. In this manner, he materially assisted the implementation of the CPK policies
against S-21 detainees. Although finding the Accused to be aware of the discriminatory
basis of these policies, the inferences that I draw from the evidence lead me to conclude
that it has not been proved to the required standard that he personally possessed thediscriminatory intent required to support a conviction for persecution on political grounds.

730

T., 22 June 2009 (Accused), p. 102; T., 4 August 2009 (LACH Mean), pp. 35-36; T., 6 August 2009
(Davjd CHANDLER), pp. 25-29.
731
T., 30 April 2009 (Accused), pp. 17-22.

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2.6

Law and Findings on Grave Breaches of the Geneva Conventions of 1949

400. The Chamber has subject-matter jurisdiction over grave breaches of the Geneva
Conventions of 1949 pursuant to Article 6 of the ECCC Law. Article 6 of the ECCC Law
provides:The Extraordinary Chambers shall have the power to bring to trial all
Suspects who committed or ordered the commission of grave breaches of
the Geneva Conventions of 12 August 1949, such as the following acts
against persons or property protected under provisions of these
Conventions, and which were committed during the period 17 April 1975
to 6 January 1979:
•
•
•
•
•
•
•
•

wilful killing;
torture or inhumane treatment;
wilfully causing great suffering or serious injury to body or health;destruction and serious damage to property, not justified by militarynecessity and carried out unlawfully and wantonly;
compelling a prisoner of war or a civilian to serve in the forces of ahostile power;
wilfully depriving a prisoner of war or civilian the rights of fair andregular trial;
unlawful deportation or transfer or unlawful confinement of acivilian;taking civilians as hostages.732

401. The Amended Closing Order charges the Accused with the following grave
breaches of the Geneva Conventions of 1949: (i) wilful killing; (ii) torture or inhumane
treatment; (iii) wilfully causing great suffering or serious injury to body or health; (iv)wilfully depriving a prisoner of war or civilian of the rights of fair and regular trial; and(v) unlawful confinement of a civilian.733
402. As a preliminary matter, the Chamber must establish that these offences constituted
crimes under national or international law during the 17 April 1975 to 6 January 1979
period.

732

Article 6 of the ECCC Law essentially mirrors the grave breaches provisions of the Geneva
Conventions of 1949 with two exceptions: (1) the grave breaches provisions explicitly include “biologicalexperiments” as a form of torture or inhuman treatment; and (2) the grave breaches provisions require thatthe destruction and appropriation of property be “extensive”.
733
Amended Closing Order, p. 44.

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403. Cambodia and Vietnam ratified the four Geneva Conventions of 1949 dated 12
August 1949 (collectively “Geneva Conventions”)734 on 8 December 1958 and 28 June
1957, respectively.735 All four Geneva Conventions contain a “grave breaches” provisionthat applies to acts committed against “protected” persons or property within the context
of an armed conflict of an international character.736 Notably, each grave breaches
provision enumerates particular offences for which universal mandatory criminal
jurisdiction exists among the contracting States.737 Under all four Geneva Conventions,the grave breaches provisions prohibit wilful killing, torture or inhuman treatment andwilfully causing great suffering or serious injury to body or health.738 Under Geneva
Convention III Relative to the Treatment of Prisoners of War ("Geneva Convention III")and Geneva Convention IV Relative to the Protection of Civilian Persons in Time of War(“Geneva Convention IV”), respectively, the grave breaches provisions also include
depriving a prisoner of war or a civilian of the rights of fair and regular trial.739
Additionally, the unlawful confinement of a civilian is considered a grave breach under
Geneva Convention IV.740

734

Geneva Convention I for the Amelioration of the Condition of the Wounded and Sick in Armed Forcesin the Field of 12 August 1949, 75 UNTS 31 (“Geneva Convention I”); Geneva Convention II for the
Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of the Armed Forces at Sea of
12 August 1949, 75 UNTS 85 (“Geneva Convention II”); Geneva Convention III Relative to the Treatmentof Prisoners of War of 12 August 1949, 75 UNTS 135 (“Geneva Convention III”); Geneva Convention IV
Relative to the Protection of Civilian Persons in Time of War of 12 August 1949, 75 UNTS 287 (“Geneva
Convention IV”, and collectively “Geneva Conventions”).
735
See ICRC, State Parties / Signatories: Geneva Conventions of 12 August 1949.
736
Geneva Convention I, Article 50; Geneva Convention II, Article 51; Geneva Convention III, Article
130; Geneva Convention IV, Article 147; see also Prosecutor v. Tadić, Decision on the Defence Motion forInterlocutory Appeal on Jurisdiction, ICTY Appeals Chamber (IT-94-1-AR72), 2 October 1995, paras 8081, 84.
737
Geneva Convention I, Article 49; Geneva Convention II, Article 50; Geneva Convention III, Article
129; Geneva Convention IV, Article 146 (each of which states in relevant part, “[t]he High Contracting
Parties undertake to enact any legislation necessary to provide effective penal sanctions for persons
committing, or ordering to be committed, any of the grave breaches of the present Convention defined in
the following Article. Each High Contracting Party shall be under the obligation to search for persons
alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such
persons, regardless of their nationality, before its own courts. It may also, if it prefers, and in accordancewith the provisions of its own legislation, hand such persons over for trial to another High Contracting
Party concerned, provided such High Contracting Party has made out a prima facie case.”)738
Geneva Convention I, Article 50; Geneva Convention II, Article 51; Geneva Convention III, Article
130; Geneva Convention IV, Article 147.
739
Geneva Convention III, Article 130; Geneva Convention IV, Article 147.
740
Geneva Convention IV, Article 147.

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404. The Geneva Conventions’ grave breaches provisions, which explicitly prohibit andidentify as criminal the offences listed in Article 6 of the ECCC Law, were binding on
Cambodia at the relevant time. The Chamber recalls that the principle of legality is alsosatisfied where a State is already treaty-bound by a specific convention.741
405. Further, the Geneva Conventions, and particularly their grave breaches provisions,codified core principles of customary international law.742 The list of grave breaches was
included in the Geneva Conventions largely on the basis of crimes pursued by the
Nuremberg-era tribunals and recognised at the time of enactment as criminal according to
general principles of law across national legal systems.743 Subsequent jurisprudence frominternational tribunals has reaffirmed the customary status of the Geneva Conventions,
including their grave breaches provisions,744 as well as the individual criminal
responsibility that attaches to violations of these norms.745

741

See Report of the Group of Experts for Cambodia established pursuant to General Assembly resolution
52/135 (annexed to document A/53/850-S/1999/231), 18 February 1999, para. 73 (stating that “Cambodia,
Laos, Thailand and Viet Nam were parties to all four Geneva Conventions of 1949 during the period at
issue, although none became a party to the 1977 Additional Protocols before 1980. The grave breaches ofthe provisions of the Geneva Conventions thus apply, although criminality extended beyond these grave
breaches under the customary law of the time.”) (footnotes omitted); see also Section 1.5.
742
See ICRC, Commentary to Geneva Convention II, (Pictet ed. 1960), specifically Article 62, pp. 281283 (“a Power which denounced the Convention would nevertheless remain bound by the principles
contained in it in so far as they are the expression of inalienable and universal rules of customaryinternational law.”); ICRC, Commentary to Geneva Convention III, (Pictet ed. 1960), specifically Article
142, pp. 646-648; ICRC, Commentary to Geneva Convention IV, (Pictet ed. 1958), specifically Article 158,
pp. 623-626.
743
See ICRC, Customary International Humanitarian Law, Vol. I: Rules, (J-M. Henckaerts and L
Doswald-Beck eds. 2005) p. 574; ICRC, Commentary to Geneva Convention I, (Pictet ed. 1952),
specifically Article 50, p. 371.
744
Prosecutor v. Delalić et al., Judgement, ICTY Appeals Chamber (IT-96-21-A), 20 February 2001(“Čelebići Appeal Judgement”), paras 112-113 (recognising the customary nature of the Geneva
Conventions); Simić et al. Trial Judgement para. 86; see also Military and Paramilitary Activities in andagainst Nicaragua (Nicaragua v. USA), Merits Judgment, ICJ (ICJ Reports 1986), 27 June 1986, p. 114,
para. 218 (“the Geneva Conventions are in some respects a development, and in other respects no morethan the expression, of such [fundamental general] principles [of humanitarian law]”); Legality of theThreat or Use of Nuclear Weapons, Advisory Opinion, ICJ (ICJ Reports 1996), 8 July 1996, p. 226, para.
79 (“the fundamental rules [contained in the Geneva Conventions] are to be observed by all States whether
or not they have ratified the conventions […] because they constitute intransgressible principles ofinternational customary law”).
745
Prosecutor v. Hadžihasanović et al., Decision on Interlocutory Appeal Challenging Jurisdiction in
Relation to Command Responsibility, ICTY Appeals Chamber (IT-01-47-AR72), 16 July 2003, para. 34,
citing Prosecutor v. Tadić, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, ICTY
Appeals Chamber (IT-94-1-AR72), 2 October 1995, para. 134; Tadić Trial Judgement, para. 577.

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406. It was accordingly foreseeable at the relevant time that the Accused could be held
criminally liable for any acts listed as grave breaches of the Geneva Conventions. The
law providing for this liability was also accessible to the Accused considering its
international conventional and customary basis. This holds true notwithstanding that the
Geneva Conventions do not specify the criminal sanctions to be imposed for violations of
their grave breaches provisions.746
407. Moreover, the appalling nature of the offences constituting grave breaches of the
Geneva Conventions helps to refute any claim that the Accused would have been
unaware of their criminal nature.747
408. The Chamber consequently finds that, at all times relevant to the Amended Closing
Order, offences charged against the Accused pursuant to Article 6 of the ECCC Law
constituted crimes under international law.
2.6.1 Chapeau requirements for Article 6 of the ECCC Law
409. Article 6 of the ECCC Law incorporates the conditions of applicability contained in
the Geneva Conventions. Accordingly, an accused may be found responsible for grave
breaches only when these are perpetrated against persons or property regarded as“protected” by the Geneva Conventions and within the context of an international armed
conflict.
410. These jurisdictional prerequisites have been set out in a useful five-part test by the
ICTY, whose Statute similarly confers jurisdiction over grave breaches of the Geneva
Conventions.748 The following general requirements must be established to the required
746

See Trial of The Major War Criminals Before the International Military Tribunal: Nuremberg, 27
August 1946 – 1 October 1946, (1948), Vol. 22, pp. 463-464 (stating that individual criminal responsibility
is not barred by the absence of treaty provisions on punishment of breaches).
747
Prosecutor v. Milutinović et al., Decision on Dragoljub Ojdanić’s Motion Challenging Jurisdiction –Joint Criminal Enterprise, ICTY Appeals Chamber (IT-99-37-AR72), 21 May 2003, para. 42 (noting thatthe immorality or appalling character of an act may play a role in refuting any claim that its perpetrator did
not know of its criminal nature).
748
The jurisprudence of the ICTY is more extensive than that of the other ad hoc international tribunals
on the issue as the Statutes of the ICTR and SCSL do not confer upon those Tribunals jurisdiction overoffences as grave breaches of the Geneva Conventions given the non-international character of the conflicts
that concern them.

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standard: (i) the existence of an armed conflict; (ii) the international character of thearmed conflict; (iii) a nexus between the acts of the accused and the armed conflict; (iv)the “protected persons” status of the victims under the Geneva Conventions; and (v) the
knowledge of the accused.749
2.6.1.1

Existence of an armed conflict

411. The Geneva Conventions’ common Article 2 (“Common Article 2”) provides that
the Conventions’ provisions, including their grave breaches provisions, apply to:
all cases of declared war or of any other armed conflict which may arise
between two or more of the High Contracting Parties, even if the state of
war is not recognized by one of them. The Convention shall also apply to
all cases of partial or total occupation of the territory of a HighContracting Party, even if the said occupation meets with no armed
resistance.

412. Interpreting Common Article 2, the jurisprudence of the ICTY established that in
the absence of a declared war, an “armed conflict” exists whenever there is a resort toarmed force between States (where the armed conflict is of an international nature) or
protracted armed violence between governmental authorities and organised armed groups
or between such groups within a State (when it is of an internal nature).750
2.6.1.2

International character of the armed conflict

413. Common Article 2 further requires that the armed conflict be one of an international
character.751

749

See Prosecutor v. Naletilić et al., Judgement, ICTY Appeals Chamber (IT-98-34-A), 3 May 2006(“Naletilić Appeal Judgement”), para. 110, citing Tadić Appeal Judgement, para. 80. Article 6 of the ECCC
Law, unlike Article 2 of the ICTY Statute, also requires that the acts be committed during the period of
17 April 1975 to 6 January 1979. The Chamber is aware of this requirement as it applies to all the charges
before it, including offences charged pursuant to Article 6 of the ECCC Law.
750Čelebići Trial Judgement, paras 183-184, citing Prosecutor v. Tadić, Decision on the Defence Motion
for Interlocutory Appeal on Jurisdiction, ICTY Appeals Chamber (IT-94-1-AR72), 2 October 1995, para.
70. By contrast, the provisions of common Article 3 of the Geneva Conventions apply to armed conflicts ofa non-international character.
751
This is an indispensable requirement of Common Article 2. Prosecutor v. Tadić, Decision on the
Defence Motion for Interlocutory Appeal on Jurisdiction, ICTY Appeals Chamber (IT-94-1-AR72), 2
October 1995, para. 79; Naletilić Appeal Judgement, para. 117.

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414. An armed conflict is indisputably international if it takes place between two or moreStates. An official recognition of a state of war is not required for the grave breaches
provisions of the Geneva Conventions to apply. Rather, de facto hostilities between
States may be sufficient to satisfy the internationality requirement, where these areconducted through the States’ respective armed forces. As stated in the ICRC’s
Commentary to Geneva Convention IV:
Any difference arising between two States and leading to the interventionof members of the armed forces is an armed conflict within the meaningof Article 2, even if one of the Parties denies the existence of a state ofwar. It makes no difference how long the conflict lasts, or how muchslaughter takes place. The respect due to the human person as such is notmeasured by the number of victims.
The Convention only provides for the case of one of the Parties denying
the existence of a state of war. What would the position be, it may bewondered, if both the Parties to an armed conflict were to deny theexistence of a state of war. Even in that event it would not appear thatthey could, by tacit agreement, prevent the Conventions from applying. It
must not be forgotten that the Conventions have been drawn up first andforemost to protect individuals, and not to serve State interests.752

415. The provisions of the Geneva Conventions indicate that their geographic andtemporal application within an armed conflict extend beyond the vicinity of the actual
hostilities and the cessation of fighting.753 Once it is established that an internationalarmed conflict existed at the place and time relevant to the charges against an accused,international humanitarian law will apply to the whole territory of the relevant States,
whether or not actual combat takes place there, and will continue to apply beyond thecessation of hostilities until a general conclusion of peace is achieved.754

752

ICRC, Commentary to Geneva Convention IV, (Pictet ed. 1958), specifically Article 2, pp. 20-21; seealso Kordić Appeal Judgement, para. 373 (“[Common Article 2] cannot be interpreted to rule out thecharacterisation of the conflict as being international in a case when none of the parties to the armed
conflict recognises the state of war. The purpose of Geneva Convention IV, i.e. safeguarding the protected
persons, would be endangered if States were permitted to escape from their obligations by denying a stateof armed conflict.”)753
See e.g., Geneva Convention III, Article 5 (providing for its application to prisoners of war from thetime they fall into the power of the enemy until their final release and repatriation).
754
Prosecutor v. Tadić, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, ICTY
Appeals Chamber (IT-94-1-AR72), 2 October 1995, para. 70; Čelebići Trial Judgement, paras 208-211;
Kordić Appeal Judgement, para. 321.

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2.6.1.3

Nexus between the acts of the accused and the armed conflict

416. A sufficient nexus must exist between the acts of the accused and the armed conflictgiving rise to the applicability of international humanitarian law. To satisfy this nexus,
the acts of the accused must have been “closely related” to the armed conflict as awhole.755 It is not necessary to establish that there were actual combat activities in thearea where the acts are alleged to have occurred or that they were part of a policy orpractice tolerated by one of the parties to the armed conflict. Where, however, acts
occurred in a prisoner camp with the connivance or permission of the authorities runningthese camps and as part of an accepted policy towards prisoners, those acts will clearly be“closely related” to the armed conflict.756
2.6.1.4

Status as “protected persons” under the Geneva Conventions of
1949

417. Article 6 of ECCC Law grants the Chamber jurisdiction over “acts against persons
or property protected under provisions” of the Geneva Conventions.757 This reference
covers “protected persons” as defined pursuant to Articles 4 of Geneva Convention III (asregards prisoners of war) and Geneva Convention IV (as regards civilian persons).758
418. Pursuant to Article 4 of Geneva Convention III, prisoners of war are persons,
including “[m]embers of the armed forces of a Party to the conflict”, who have “fallen
into the power of the enemy.” Article 4(1) of Geneva Convention IV defines protected
persons as those “in the hands of a Party to the conflict or Occupying Power of which
they are not nationals.”
419. The ICTY Appeals Chamber has adopted a flexible interpretation of the nationality
requirement expressed in Article 4 of Geneva Convention IV. Drawing on the object and755

Prosecutor v. Tadić, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, ICTY
Appeals Chamber (IT-94-1-AR72), 2 October 1995, para. 70.
756
Tadić Trial Judgement, paras 572-575.
757
Although property is also “protected” under the Geneva Conventions, the offences charged against the
Accused pursuant to Article 6 of the ECCC Law concern only protected persons.
758
Articles 13, 24, 25 and 26 of Geneva Convention I and Articles 13, 36, 37 of Geneva Convention II
likewise define those protected under their provisions. In the instant case, however, the Chamber is
primarily concerned with Geneva Conventions III and IV as they pertain to prisoners of war and civilians.

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purpose of the Geneva Conventions, it has found that a person may be accorded protected
status notwithstanding the fact that he or she is of the same nationality as a party to theconflict.759 It has found that the protected status of an individual should not depend on
formal bonds and purely legal relations, but on the substance of relations that exists
between the individual and the State.760 The crucial consideration when analysing thesesubstantive relations is the allegiance — or lack thereof — that an individual has to a
party to the conflict.761 Civilians may thus be considered as “protected persons” for the
purpose of Geneva Convention IV where they are viewed by the State whose hands they
are in “as belonging to the opposing party in an armed conflict and as posing a threat to[that] State.”762
2.6.1.5

Knowledge of the accused420. The ICTY Appeals Chamber has reasoned that if certain conduct becomes a crime
only in the context of an international armed conflict, the existence of such a conflict is
not merely a jurisdictional pre-requisite but also a substantive element of the offencescharged. Accordingly, it has found that an accused must know that his criminal conduct
had a nexus to the international armed conflict, “or at least that he had knowledge of thefactual circumstances later bringing the Judges to the conclusion that armed conflict was
an international one.”763
421. These two prongs of the accused’s knowledge – as regards the international
character of the armed conflict and the protected status of the victims – have been madeexplicit only in recent years by international tribunals. However, both prongs are distilled

759

Tadić Appeal Judgement, para. 166 (“[N]ot only the text and the drafting history of the Convention but
also, and more importantly, the Convention’s object and purpose suggest that allegiance to a Party to theconflict and correspondingly, control by this Party over persons in a given territory, may be regarded as the
crucial test.”); Aleksovski Appeal Judgement, para. 151; Čelebići Appeal Judgement, paras 58, 73.
760
Tadić Appeal Judgement, paras 166, 168.
761
Tadić Appeal Judgement, para. 166; Kordić Appeal Judgement, para. 331; Aleksovski Appeal
Judgement, paras 151-152.
762
Čelebići Appeal Judgement, para. 98.
763
Naletilić Appeal Judgement, paras 110-120; Kordić Appeal Judgement, para. 311; see also Article 8(War Crimes) of the ICC’s “Elements of Crimes” (ICC-ASP/1/3 (part II-B), entry into force 9 September
2002).

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from the field of application of the grave breaches of the Geneva Conventions and arethus equally applicable to the 17 April 1975 to 6 January 1979 period.
422. To be convicted of an offence pursuant to Article 6 of the ECCC Law, an accusedmust therefore have sufficient knowledge of the international character of the armed
conflict and of the protected status of the victims under the Geneva Conventions.
Awareness by the accused that a foreign state was involved in the armed conflict and thata victim belonged to an adverse party to that armed conflict will suffice to establish thisknowledge.
2.6.2 Findings on chapeau requirements for Article 6 of the ECCC Law
2.6.2.1

Existence of an international armed conflict

423. The Chamber finds that armed hostilities existed between Cambodia and Vietnam
from 17 April 1975 through 6 January 1979 (Section 2.1). Continuous clashes, whether
border skirmishes or more serious incursions into both Cambodian and Vietnamese
territory, continued throughout this period, despite DK and Vietnam’s desire to keepthem covert at the outset (Section 2.1.1). The Chamber concludes that an internationalarmed conflict accordingly existed at all times relevant to the Amended Closing Order.
2.6.2.2

Nexus between the acts of the Accused and the armed conflict

424. There is ample evidence that the acts of the Accused against protected persons at
S-21 as charged were closely related to the armed conflict between DK and Vietnam.764
Vietnamese detainees constituted the largest group of foreign detainees at the S-21
complex and their numbers increased with the escalation of the conflict, particularly
throughout 1978.765 Vietnamese soldiers detained at the S-21 complex were forced tomake confessions regarding Vietnam’s intent to invade Cambodia, which from January

764

See T., 9 June 2009 (Accused), p. 74 (acknowledging that individuals were sent to S-21 as a result of
the armed conflict).
765
T., 9 June 2009 (Accused), p. 96; T., 10 June 2009 (Accused), pp. 5-7; T., 1 April 2009 (Agreed
Facts), p. 65; see also “Vietnamese arrested by month”, E68.32.

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1978 onwards were broadcast on DK radio for propaganda purposes, and interrogated onmatters of military intelligence.766
2.6.2.3

Status as “protected persons” under the Geneva Conventions of
1949

425. No fewer than 345 Vietnamese prisoners of war and civilians were detained at S-21
and constituted protected persons under the Geneva Conventions of 1949.767 Vietnamesedetainees were registered as either soldiers (122 entries), Vietnamese civilians (79entries) or spies (144 entries).768 Vietnamese prisoners of war, many of whom were
captured on the battlefield, entered the S-21 complex in their military uniforms.769
Amongst the Vietnamese civilians were women, as well as children brought to the S-21
complex along with their parents.770 The Accused stated that “spies” were classified assuch on order of his superiors but were in fact either civilians or combatants.771
426. Further, due to their real or perceived allegiance with Vietnam, some Cambodians,
originating primarily from the East Zone, were detained and executed as Vietnamese
sympathisers.772 Although Cambodian nationals, they were viewed by the CPK as having
allegiances to Vietnam and as a threat to DK. Accordingly, the Chamber considers thatthese Cambodian detainees were also protected persons within the meaning of Article 4of Geneva Convention IV.

766

T., 10 June 2009 (Accused), pp. 7-8; 45-46; T., 16 June 2009 (Accused), p. 38;.T., 14 July 2009
(MAM Nai), p. 28; T., 21 July 2009 (PRAK Khan), p. 31.
767
See “Vietnamese Prisoners Entering S-21”, E68.27; T., 9 June 2009 (Accused), p. 97; T., 10 June 2009
(Accused), pp. 3, 5-6; see also (Section 2.3.3.4.2.
768
T., 10 June 2009 (Accused), p. 6; “S-21 Prisoners described as Vietnamese soldiers”, E68.28; “S-21
Prisoners described as Vietnamese spies”, E68.29; “S-21 prisoners identified as Vietnamese”, E68.30; “S21 Prisoners described as Vietnamese”, E68.31; see also the Accused comments on the Revised S-21
Prisoner List: T., 10 June 2009 (Accused), pp. 3-7.
769
T., 9 June 2009 (Accused), pp. 98-99; T., 10 June 2009 (Accused), pp. 7, 17-18; T., 16 July 2009 (HIM
Huy), p. 38.
770
T., 10 June 2009 (Accused), pp. 18-19, 47-48; T., 21 July 2009 (PRAK Khan), p. 15; T., 4 August
2009 (PES Matt statement read), p. 87. As per S-21 policy, the children were not registered in detainee
logs. See T., 10 June 2009 (Accused), pp. 18-19.
771
T., 10 June 2009 (Accused), pp. 10, 56.
772
T., 25 May 2009 (Nayan CHANDA), p. 22; T., 6 August 2009 (David CHANDLER), pp. 16-17; T., 9
June 2009 (Accused), p. 91; T., 1 April 2009 (Agreed Facts), p. 65; see also “Arrest from East Zone bymonth”, E68.46, showing a high amount of arrests in 1978; “S-21 Prisoners coming from the East Zone”,
E68.45, showing a total number of 1165 entries.

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2.6.2.4

Knowledge of the Accused427. Although acknowledging that the conflict between Vietnam and Cambodia
commenced before this date, the Accused alleged that he learned of it only on 6 January
1978.773
428. It is undisputed that the first record of an S-21 detainee described as “Vietnamese”
dates back to 7 February 1976. The Accused recalled that Vietnamese detainees,
including civilians and soldiers, were taken to the S-21- complex as early as 1975, though
they were then few in number.774 In some instances, the Accused ordered S-21 trucks andpersonnel to transport Vietnamese detainees from combat zones to the S-21 complex, andsent the blood of S-21 detainees to the General Staff Hospital for transfusions for RAK
soldiers wounded in battle in 1977 or 1978.775 He knew of the ongoing purges of
Cambodian nationals on account of their perceived allegiance with Vietnam, as well as
SON Sen’s battlefield deployment in August 1977.776 The Accused also reviewed,
summarised and amended the confessions of Vietnamese detainees as early as April
1976.777429. The Chamber concludes that the Accused was aware of the armed conflict with
Vietnam at least from 7 February 1976. Further, the Accused knew that S-21 detainees
included protected persons, namely Vietnamese civilians and prisoners of war, as well as
Cambodians considered to be Vietnamese sympathisers.

773

T., 9 June 2009 (Accused), pp. 70-71, 75-79, 85, 89-90.
T., 1 April 2009 (Agreed Facts), p. 72; T., 9 June 2009 (Accused), pp. 96-97; T., 10 June 2009
(Accused), p. 2.
775
T., 9 June 2009 (Accused), pp. 97-98; T., 10 June 2009 (Accused), pp. 42-43; T., 16 June 2009
(Accused), pp. 81-83; T., 17 June (Accused), p. 38; T., 22 June 2009 (Accused), pp. 113-114; T., 16 July2009 (HIM Huy), pp. 16, 37-39; T., 20 July 2009 (HIM Huy), pp. 22-23, 66; T., 21 July 2009 (PRAK
Khan), pp. 37-38.
776
T., 9 June 2009 (Accused), p. 91; T., 10 June 2009 (Accused), pp. 31, 58-59, 63, 75.
777
T., 10 June 2009 (Accused), pp. 8, 10, 12, 14-16, 48; “S-21 Confession of Vietnamese prisoner Troeng
Yaing Lak”, E5/2.13, ERN (English) 00284002.
774

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2.6.3 Law and findings on offences as grave breaches of the Geneva
Conventions of 1949
430. The Amended Closing Order charges the Accused with the following grave
breaches of the Geneva Conventions of 1949: (i) wilful killing; (ii) torture or inhumane
treatment; (iii) wilfully causing great suffering or serious injury to body or health; (iv)wilfully depriving a prisoner of war or civilian of the rights of fair and regular trial; and(v) unlawful confinement of a civilian.778
2.6.3.1

Wilful killing

431. The elements of the offence of wilful killing under Article 6 of the ECCC Law are
the same as those of murder under Article 5 of the ECCC Law (crimes against humanity)(Section 2.5.3.1).
2.6.3.2

Findings on wilful killing

432. The Amended Closing Order states:
151.
S21 personnel wilfully caused the death of at least 400 protected
persons both directly and indirectly, through a variety of means.779

433. The Accused confirmed that Vietnamese prisoners of war and civilians as well as
Vietnamese sympathisers detained at S-21 were subjected to the same detention
conditions as other detainees and were also destined for execution, with no morefavourable conditions applying to them due to their nationality or protected status.780
434. Executions of protected persons were carried out in the same manner as those ofother S-21 detainees.781 In common with other detainees, protected persons were778

Amended Closing Order, pp. 44-45. The Chamber notes that the Amended Closing Order uses the term
“inhumane treatment” while the Geneva Conventions refer to “inhuman treatment”. The Chamberconsiders the two terms synonymous.
779
Amended Closing Order para. 151.
780
T., 10 June 2009 (Accused), p. 54 (“those who were sent to S 21 were considered as enemies to besmashed and, therefore, among those victims there must be Vietnamese civilians, soldiers and spies. So
there is no other choice but to smash.”); see also T., 15 June 2009 (Accused), p. 49; T., 1 July 2009 (BOU
Meng), pp. 54-55.
781
T., 16 July 2009 (HIM Huy), p. 86-87; see also Section 2.4.1.1.

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generally executed at Choeung Ek and within the S-21 complex782 following thecompletion of their confessions, if any.783 Vietnamese children were also either killed at
the S-21 complex or Choeung Ek after being separated from their parents.784
435. In addition to the detainees who were executed, the detention conditions imposed at
S-21 were such that many detainees also died during their detention (Section 2.4.5.1).
436. Due to the inaccuracy of the existing record, it is not possible to quantify the precise
number of the protected persons who died or were executed at S-21. On the basis of the
Revised S-21 Prisoner List, the Chamber finds that no fewer than 345 Vietnamesedetainees died or were executed at S-21, in addition to the large but unquantifiable
number of Cambodian nationals perceived as Vietnamese sympathisers.785
437. The Trial Chamber finds that protected persons were deliberately killed by S-21
personnel within the S-21 complex or at Choeung Ek. It also finds that detainees died at
S-21 as the result of omissions known to be likely to lead to death and as a consequenceof the conditions of detention imposed upon them.
2.6.3.3

Torture or inhumane treatment

438. The offence of torture or inhumane treatment is expressly prohibited as a grave
breach in each of the four Geneva Conventions.786 Torture and inhumane treatment
constitute two separate offences.787

782

T., 17 June 2009 (Accused), p. 92; T., 16 July 2009 (HIM Huy), pp. 69, 85-87; see also T., 21 July2009 (PRAK Khan) pp. 50-51.
783
T., 10 June 2009 (Accused), pp. 9-10, 18. The majority of protected persons at the S-21 complex were
executed after 6 January 1978, the day POL Pot called for the celebration of the RAK victory over theVietnamese Army (T., 9 June 2009 (Accused), pp. 96-97; T., 10 June 2009 (Accused), pp. 2-19; see alsoT., 3 August 2009 (LACH Mean), pp. 68-69; T., 4 August 2009 (PES Matt statement read), p. 87). During
the last mass execution of about 200 remaining S-21 detainees in January 1979, Vietnamese detainees kept
alive in the complex until then for interrogation purposes were also executed upon order by the Accused’s
superiors. (T., 17 June 2009 (Accused), pp. 83-85; see also T., 28 July 2009 (SUOS Thy), p. 23.
784
T., 21 July 2009 (PRAK Khan), p. 15; T., 10 June 2009 (Accused), pp. 18-19. Despite a lack of
specific information regarding the execution of children, the Accused did not contest these facts.
785“Vietnamese Prisoners Entering S-21”, E68.27; “S-21 Prisoners identified as Vietnamese”, E68.30.
786
Geneva Convention I, Article 50; Geneva Convention II, Article 51; Geneva Convention III, Article
130; Geneva Convention IV, Article 147.
787
See Čelebići Trial Judgement, para. 442.

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439. The elements of the offence of torture under Article 6 of the ECCC Law are thesame as those of torture under Article 5 of the ECCC Law (Crimes Against Humanity).788
440. Inhumane treatment is defined by ICTY jurisprudence as an intentional act oromission against a person protected under the Geneva Conventions, which causes serious
mental harm or physical suffering or injury, or constitutes a serious attack on humandignity.789
441. The ICRC Commentary to Geneva Convention IV provides assistance in interpretingthe offence:[Inhuman treatment] could not mean, it seems, solely treatment
constituting an attack on physical integrity or health; the aim of theConvention is certainly to grant civilians in enemy hands a protection
which will preserve their human dignity and prevent them from beingbrought down to the level of animals. That leads to the conclusion that by‘inhuman treatment’ the Convention does not mean only physical injury
or injury to health. Certain measures, for example, which might cut thecivilians internees off completely from the outside world and inparticular from their families, or which caused great injury to their
human dignity, could conceivably be considered as inhuman treatment.790

442. Acts which constitute torture or wilfully causing great suffering or serious injury tobody or health will simultaneously constitute inhumane treatment. The offence extends
also to encompass other acts which violate the principle of humane treatment, inparticular the respect for human dignity.791 This assessment is a question of fact whichmust take into account all of the circumstances of the individual case.792 Acts such as
mutilation and other types of severe bodily harm, beatings and other acts of violence,793
and serious physical and mental injury794 have been considered as inhumane.
443. Inhumane treatment differs from torture in that it need not be undertaken for any
particular purpose. The ICTY has found that inhumane treatment includes an act causing
788
789
790
791
792
793
794

Krnojelac Trial Judgement, para. 178; see also Section 2.5.3.7.
See Čelebići Trial Judgement, para. 543; Čelebići Appeal Judgement, para. 426.
ICRC, Commentary to Geneva Convention IV, (Pictet ed. 1958), p. 598.
Čelebići Trial Judgement, para. 544.
Čelebići Trial Judgement, para. 544; Blaškić Trial Judgement, para. 155.
Tadić Trial Judgement, para. 730.
Blaškić Trial Judgement, para. 239.

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serious mental or physical suffering which does not reach the threshold of severity
required for the offence of torture.795
444. The perpetrator must have committed the act or omission with the intention to inflict
serious physical or mental suffering or to commit a serious attack on the human dignityof the victim, or with recklessness as to whether suffering or an attack on human dignity
would result.796
2.6.3.4

Findings on torture or inhumane treatment

445. The Amended Closing Order states:
149. S21 personnel wilfully caused severe pain or suffering, whether
physical or mental, to protected persons during interrogation. The
purpose of using such methods within the course of the interrogation was
to extract confessions aimed at obtaining military information andsupporting CPK propaganda.
150. S21 personnel wilfully caused serious mental harm or physicalsuffering or injury, or submitted them to conditions which amounted to aserious attack upon the human dignity of the prisoners at S21.797

2.6.3.4.1

Torture446. Vietnamese detainees within the S-21 complex were interrogated by Witness MAM
Nai, with the help of an interpreter, Pha Tha Chan.798 According to the Accused, “[b]othcivilian and Vietnamese military were detained the same way as the Khmer detainees.
They were interrogated and tortured. But the Vietnamese people were not as severely
tortured as the tortures that were inflicted on the Cambodian prisoners because we only
needed their confession.”799 He added that while torture was used on Vietnamese
prisoners where “necessary” or “unavoidable”, it took place on a “very minimal scale”.800795Čelebići Trial Judgement, para. 542.
Čelebići Trial Judgement, para. 543.
797
Amended Closing Order, paras 148-150.
798
T., 10 June 2009 (Accused), pp. 9, 10, 45-46; T., 16 June 2009 (Accused), p. 47; T., 14 July 2009
(MAM Nai), pp. 26-29; see also Section 2.3.3.4.3.2.
799
T., 15 June 2009 (Accused), p. 49; see also T., 4 August 2009 (PES Matt statement read), p. 87(indicating that he saw Vietnamese detainees who he thought had been tortured); T., 1 July 2009 (BOU
Meng), pp. 39, 55 (indicating that the detainee painted by VANN Nath was Vietnamese).
800
T., 10 June 2009 (Accused), pp. 9-11, 19; see also T., 16 June 2009 (Accused), pp. 85, 86; T., 9 June2009 (Accused), p. 74.
796

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This is corroborated by MAM Nai’s notebook, which counsels interrogators not to beatVietnamese when they appear not to know information.801
447. The purpose of interrogation of Vietnamese detainees evolved with the escalation of
the armed conflict. Initially, they were questioned on their “spy missions” and networks
in Cambodia, as well as on Vietnam’s intent to invade Cambodia and incorporate it into
an Indochinese federation.802 From 6 January 1978, the confessions of Vietnamese
prisoners of war were taped and broadcast on the radio for propaganda purposes.803
448. The Chamber accordingly finds that Vietnamese detainees were subjected to torture,albeit in lesser number and with less severity than other detainees. It further finds that
Cambodian nationals perceived as Vietnamese sympathisers were interrogated in thesame manner and for the same purpose as all other Cambodian detainees.804
2.6.3.4.2

Inhumane treatment449. Some treatment inflicted on protected persons not reaching the severity threshold of
torture or great suffering, nonetheless amounted to violations of human dignity, as
evidenced by the general conditions of detention and the numerous methods used toobtain forced confessions of Vietnamese detainees.805 The Chamber is satisfied that
protected persons were subjected to a serious attack on their human dignity. The
Chamber further finds that this treatment was intentional or recklessly inflicted by S-21
staff.

801“S-21 Notebook by MAM Nai alias Chan”, E3/231, ERN (English) 00184616.
T., 10 June 2009 (Accused), pp. 3, 8, 12; T., 1 April 2009 (Agreed Facts), pp. 87-88.
803
T., 9 June 2009 (Accused), p. 74; T., 10 June 2009 (Accused), pp. 3, 48; T., 16 June 2009 (Accused),
p. 38; T., 20 July 2009 (HIM Huy), pp. 4-5; see also Section 2.1.2.
804
T., 9 June 2009 (Accused), p. 91; see also Section 2.4.4.
805
The Case File contains 82 confessions of Vietnamese detainees (documents E3/665 to E3/747).
802

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2.6.3.5

Wilfully causing great suffering or serious injury to body orhealth450. The offence of wilfully causing great suffering or serious injury to body or health isexpressly prohibited as a grave breach in each of the four Geneva Conventions.806 It
represents a single offence whose elements are framed in the alternative.807
451. The ICTY jurisprudence has defined the offence as “an intentional act or omission
which causes serious mental or physical suffering or injury, provided the requisite levelof suffering or injury can be proven.”808
452. The ICRC Commentary to Geneva Convention IV notes as follows:
Wilfully causing great suffering - this refers to suffering inflicted without
the ends in view for which torture is inflicted or biological experiments
carried out. It would therefore be inflicted as a punishment, in revenge
or for some other motive, perhaps out of pure sadism. In view of the factthat suffering in this case does not seem, to judge by the phrase which
follows, to imply injury to body or health, it may be wondered if this is
not a special offence not dealt with by national legislation. Since theConventions do not specify that only physical suffering is meant, it canquite legitimately be held to cover moral suffering also.
Serious injury to body or health – this is a concept quite normallyencountered in penal codes, which usually use as a criterion ofseriousness the length of time the victim is incapacitated for work.809

The Chamber adopts this early analysis of the offence of wilfully causing great sufferingor serious injury to body or health.
453. This offence is distinguishable from torture primarily as the alleged act or omissionneed not be committed for any particular purpose.810 The offence is also further
distinguishable from that of inhumane treatment as requiring serious mental or physical

806

Geneva Convention I, Article 50; Geneva Convention II, Article 51; Geneva Convention III, Article
130; Geneva Convention IV, Article 147.
807
Čelebići Trial Judgement, para. 506.
808
Kordić Trial Judgement, para. 245.
809
ICRC, Commentary to Geneva Convention IV, (Pictet ed. 1958), specifically Article 147, p. 599.
810
See also Čelebići Trial Judgement, paras 508, 511.

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injury. Acts where the resultant harm relates solely to an individual’s human dignity are
not included within this offence.811
454. The physical or mental harm caused to the victim need not be irremediable orpermanent, but must go beyond temporary unhappiness, embarrassment or humiliation. It
must be harm that results in a grave and long-term disadvantage to a person’s ability tolead a normal and constructive life.812
455. The jurisprudence of the ICTY has established that the requisite mental element forthis offence includes both culpable intent and recklessness.813
2.6.3.6

Findings on wilfully causing great suffering or serious injury tobody or health456. The Amended Closing Order states:
148. These protected persons were wilfully subjected to serious mental
and physical suffering due to inhumane acts which included deliberate
deprivation of adequate food, sanitation and medical treatment.
Prisoners were beaten and subjected to stringent restrictions during
detention. These severe conditions individually or collectively depressed,
degraded, and dehumanised detainees ensuring that they were always
afraid.814

457. Protected persons suffered the same conditions of detention as other S-21
detainees,815 resulting in serious bodily and mental injuries. The Chamber thus finds that
S-21 staff wilfully caused Vietnamese and other protected persons great suffering byimplementing conditions of detention at S-21 characterized by, amongst other things, alack of access to adequate food and medical care (Section 2.4.5).

811

Kordić Trial Judgement, para. 245.
Krstić Trial Judgement, paras 511-513.
813
Blaškić Trial Judgement, para. 152.
814
Amended Closing Order, para. 148.
815
T. 15 June 2009 (Accused), pp. 48-51; T., 16 July 2009 (HIM Huy), pp. 50, 51, 61; see also Sections
2.4.5.1-2.4.5.4.
812

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2.6.3.7

Wilfully depriving a prisoner of war or civilian of the rights offair and regular trial

458. The offence of wilfully depriving a prisoner of war or a civilian of the rights of fairand regular trial is expressly prohibited as a grave breach in Geneva Convention IV and
Geneva Convention III, respectively.816
459. The perpetrator must have deprived one or more persons of a fair and regular trial
by denying judicial guarantees as defined, in particular, in Geneva Convention IV and
Geneva Convention III. These judicial guarantees include the right to be judged by anindependent and impartial court,817 to be promptly informed of the charges,818 theprotection against collective penalty,819 protection under the principle of legality, 820 theright not to be punished more than once for the same act or on the same count,821 to be
informed of the right to appeal,822 and the right not to be sentenced or executed without aprevious judgement pronounced by a regularly constituted court.823
460. The jurisprudence of the ICTY has established that the requisite mental element forthis offence includes both culpable intent and recklessness.824
2.6.3.8

Findings on wilful deprivation of fair trial rights

461. The Amended Closing Order states:
147. At least 400 protected persons were wilfully denied their right tobe judged by an independent and impartial court as defined by the
Geneva Conventions of 1949. In particular, the right to be promptly
informed of their offences; to be protected from collective penalty; to beprotected by the principle of legality; or to be sentenced by a competentcourt.825

816
817
818
819
820
821
822
823
824
825

Geneva Convention III, Article 130; Geneva Convention IV, Article 147.
Geneva Convention III, Article 84(2).
Geneva Convention III Article 104; Geneva Convention IV, Article 71(2).
Geneva Convention III, Article 87; Geneva Convention IV, Article 33.
Geneva Convention III, Article 99(1); Geneva Convention IV, Article 67.
Geneva Convention III, Article 86; Geneva Convention IV, Article 117(3).
Geneva Convention III, Article 106; Geneva Convention IV, Article 73.
Geneva Convention III, Articles 100-105, 107; Geneva Convention IV, Articles 64-70, 74-75.
Blaškić Trial Judgement, para. 152.
Amended Closing Order, paras 146, 147.

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462. All protected persons, including all Vietnamese and Cambodians perceived as
Vietnamese sympathizers were deprived of their fair trial rights (Section 2.4.3). The
Chamber observes that no arrangements were made to screen captured prisoners of war
or civilians, nor were there any mechanisms to inform them of the reasons for their arrest
or enable them to challenge its basis or to appeal. Further, the punishment meted out tothem was clearly arbitrary. There were no trials, and extra-judicial executions werecarried out on detainees as a matter of policy. While no judicial system existed during theDK period, S-21 functioned as a State institution with the power to detain, interrogate andexecute persons. It was accordingly bound to exercise such powers in conformity with thefair trial rights guaranteed by the Geneva Conventions.
463. The Chamber finds that no fewer than 345 Vietnamese and a large number of otherprotected persons detained at S-21 were wilfully deprived of their right to a fair andregular trial.
2.6.3.9

Unlawful confinement of a civilian

464. The elements of the offence of unlawful confinement under Article 6 of the ECCC
Law are in substance the same as those of imprisonment under Article 5 of the ECCC
Law (crimes against humanity).826
465. Unlawful confinement of a civilian is expressly prohibited as a grave breach in
Geneva Convention IV.827 Although the confinement of civilians in an armed conflictmay be permissible in limited cases, the relevant provisions of Geneva Convention IV
clarify that deprivation of liberty is permissible only where there are reasonable grounds
to believe that the security of the State is at risk.828 Further, an initially lawful internment
becomes unlawful if the detaining party fails to respect the detainee’s basic procedural

826

Kordić Trial Judgement, para. 301; see also Kordić Appeal Judgement, paras 69-73; see also Section
2.5.3.5.
827
Geneva Convention IV, Article 147; see also Geneva Convention IV, Article 5 (authorizing measuresin relation to persons “definitely suspected of or engaged in activities hostile to the security of the State”,
but mandating humane treatment and respect of fair trial rights in relation to them.)
828
Article 42 of Geneva Convention IV states: The internment or placing in assigned residence ofprotected persons may be ordered only if the security of the Detaining Power makes it absolutely necessary.
[…]; see also Čelebići Appeal Judgement, paras 320-321; Kordić Appeal Judgement, para. 72.

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rights or to establish an appropriate court or administrative board as prescribed in Article
43 of Geneva Convention IV.829
466. The jurisprudence of the ICTY has established that the requisite mental element forthis offence, in common with all grave breaches of the Geneva Conventions, includes
both culpable intent and recklessness.830
2.6.3.10

Findings on unlawful confinement of a civilian

467. The Amended Closing Order states:
146.
More than a hundred Vietnamese civilians were detained at S21.
There was no difference in treatment between Vietnamese civilians andother individuals subjected to imprisonment at S21, all were arbitrarily
deprived of their liberty.831

468. The Chamber has found that all S-21 detainees were intentionally and arbitrarily
imprisoned without legal basis (Section 2.4.3). This was also true of no fewer than 79
Vietnamese civilians, as well as the large number of other protected civilians detained
within the S-21 complex (Section 2.3.3.4.2). No reasonable grounds justifying theconfinement of these civilians have been established. Nor were opportunities provided todetainees, including protected civilians held within the S-21 complex, to challenge theirdetention (Section 2.4.3.2).
469. The Chamber finds, in the absence of factors indicating that the security of
Cambodia required their internment during the armed conflict between Cambodia andVietnam, that protected civilians, including a number of Vietnamese nationals, were
unlawfully confined at S-21.

829

See Article 43 of Geneva Convention IV (providing for periodic review of detention by an appropriate
court or administrative board ,as well as notification requirements in relation to detainees).
830
Blaškić Appeal Judgement, para. 152.
831
Amended Closing Order, para. 146.

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2.7

Individual criminal responsibility of the Accused470. Article 29 (new) of the ECCC Law outlines the forms of responsibility pursuant towhich accused persons can be held individually criminally responsible for the crimes
within the jurisdiction of the ECCC. Article 29 (new) of the ECCC Law is modelled on
the provisions on forms of responsibility in the Statutes of the ad hoc international
criminal tribunals and derives from notions of international law.832 Article 29 (new) of
the ECCC Law provides:
Any Suspect who planned, instigated, ordered, aided and abetted, orcommitted the crimes referred to in article 3 new, 4, 5, 6, 7 and 8 of thislaw shall be individually responsible for the crime.
The position or rank of any Suspect shall not relieve such person of
criminal responsibility or mitigate punishment.
The fact that any of the acts referred to in Articles 3 new, 4, 5, 6, 7 and 8of this law were committed by a subordinate does not relieve the superiorof personal criminal responsibility if the superior had effective commandand control or authority and control over the subordinate, and thesuperior knew or had reason to know that the subordinate was about tocommit such acts or had done so and the superior failed to take thenecessary and reasonable measures to prevent such acts or to punish theperpetrators.
The fact that a Suspect acted pursuant to an order of the Government of
Democratic Kampuchea or of a superior shall not relieve the Suspect ofindividual criminal responsibility.

471. The Amended Closing Order states that the Accused “through his acts or omissions
in Phnom Penh and within the territory of Cambodia, between 17 April 1975 and 6
January 1979, as Deputy Secretary or Secretary of S21, planned, instigated, ordered,committed, or aided and abetted, or is responsible by virtue of superior responsibility” foroffences charged as crimes against humanity, grave breaches of the Geneva Conventionsand violations of the 1956 Penal Code.833

832

See Article 7(1) of the ICTY Statute, Article 6(1) of the ICTR Statute and Article 6(1) of the SCSL
Statute (all of which state “A person who planned, instigated, ordered, committed or otherwise aided andabetted in the planning, preparation or execution of a crime referred to in [the relevant articles of therespective statutes], shall be individually responsible for the crime.”)833
Amended Closing Order, p. 44-45 as amended by Decision on Appeal against the Closing Order, p. 41.

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472. While the Amended Closing Order alleges multiple forms of responsibility inrespect of each charge, the Chamber has the discretion to choose the form or forms of
responsibility under which to assess the evidence in respect of the Accused.834 A
Chamber is not obliged to make exhaustive factual findings on each and every charged
form of responsibility, and may opt to examine only those that describe the conduct of an
accused most accurately.835
473. The principle of legality (Section 1.5) applies to the forms of responsibility, as wellas to the substance of the crimes charged. The Chamber must thus establish that the formsof responsibility charged in the Amended Closing Order were recognised under national
or international law during the 17 April 1975 to 6 January 1979 period.
474. The forms of responsibility mentioned in Article 29 (new) of the ECCC Law werealso known under the 1956 Penal Code at the relevant time, except for planning andsuperior responsibility.836 Planning was, however, criminalized by specific provisions,837
making the criminalisation of such conduct foreseeable, whether as a form of
responsibility or as a crime.
475. Further, the principle of individual criminal responsibility for the commission ofviolations of international humanitarian law was made explicit in the Nuremberg Charterand enforced by the Nuremberg-era judgements.838 These Nuremberg-era judgements
also confirmed that individual criminal responsibility extended beyond those who
physically perpetrated crimes, including to those who ordered or assisted in theircommission.839 Subsequent jurisprudence and codifications at the international level have834

Krstić Trial Judgement, para. 602; Semanza Trial Judgement, para. 397.
Prosecutor v. Milutinović, Judgement, ICTY Trial Chamber (IT-05-87-T), 26 February 2009(“Milutinović Trial Judgement”), Vol. I, para. 76.
836
See Articles 76 and 82 to 87 of the 1956 Penal Code.
837
See Articles 290, 223 and 239 of the 1956 Penal Code.
838
See Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis,
and Charter of the International Military Tribunal, 8 August 1945, 82 UNTS 279, Article 6 of the Charter.
839
See e.g., Trial of Bruno Tesch and Two Others (‘Zyklon B case’), 1-8 March 1946, Law Reports of
Trials of War Criminals (1947), Vol. I, p. 93 (finding that supplying lethal gas to concentration camps withknowledge of its use entailed criminal responsibility); Trial of Werner Rodhe and Eight Others, 29 May-1
June 1946, Law Reports of Trials of War Criminals (1948), Vol. V, p. 54 (accuseds who provided
assistance to perpetrator convicted as “concerned in the killing”); Trial of Wilhelm List and Others(‘Hostages trial’), 8 July 1947 – 19 February 1948, Law Reports of Trials of War Criminals (1949), Vol.
835

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reaffirmed the customary nature of each of the forms of responsibility included in the firstparagraph of Article 29 (new) of the ECCC Law, as well as their applicability to a range
of international crimes, including grave breaches of the Geneva Conventions of 1949 andcrimes against humanity.840
476. Moreover, the Nuremberg-era tribunals found that the failure of a superior to carryout his duty to control his subordinates’ criminal conduct could lead to individual
criminal responsibility.841 This principle was later codified in Articles 86 and 87 of theProtocol Additional to the Geneva Conventions of 12 August 1949, and Relating to theProtection of Victims of International Armed Conflict (“Additional Protocol I”).842
Though Additional Protocol I was adopted in 1977, the ICTY Appeals Chamber has
found that “command responsibility was part of customary international law relating to

VIII, p. 34 (finding of criminal responsibility based on the issuance of criminal orders); Trial of Franz
Schonfeld and Nine Others, 11-26 June 1946, Law Reports of Trials of War Criminals (1949), Vol. XI, p.
64 (accuseds who provided assistance to perpetrator convicted as “concerned in the killing”); Ohlendorf
and Others Case (‘Einsatzgruppen case’), Judgment of 8-9 April 1948, Trials of War Criminals Before theNuernberg Military Tribunals Under Control Council Law No. 10 (1950), Vol. IV, p. 411 (finding criminal
responsibility where accused’s acts had a substantial effect on those of the perpetrator); see also Control
Council Law No. 10 (1945), reprinted in Trials of War Criminals Before the Nuernberg Military Tribunals
Under Control Council Law No. 10, Vol. I, pp. XVI-XIX, Article 2(2).
840
See e.g., Tadić Trial Judgement, para. 669 (stating that all of the forms of responsibility included in
Article 7 of the ICTY Statute, which mirror those listed in Article 29 of the ECCC Law, have a customarybasis); Furundzija Trial Judgement, paras 191-249 (as regards the customary basis of aiding and abetting);
see also Geneva Convention III Relative to the Treatment of Prisoners of War of 12 August 1949, 75
UNTS 135, Article 129(1) (as regards penal sanctions for “persons committing, or ordering to becommitted, any of the grave breaches of the present Convention”); Geneva Convention IV Relative to theProtection of Civilian Persons in Time of War of 12 August 1949, 75 UNTS 287, Article 146(1) (same);
International Convention on the Suppression and Punishment of the Crime of Apartheid, 30 November
1973, 1015 UNTS 243, Article III (“citing as criminally culpable those who “[c]ommit, participate in,directly incite or conspire in[, or] […] [d]irectly abet, encourage or co-operate in the commission of thecrime of apartheid.”); Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, UNGA Res. 39/46, 10 December 1984, Article 4(1) (as regards the criminal nature of an act“which constitutes complicity or participation in torture”).
841
See e.g., Trial of General Tomoyuki Yamashita, First Instance Judgement and US Supreme Court
Habeas Decision of 4 February 1946, Law Reports of Trials of War Criminals (1948), Vol. IV, p. 1; Trialof Wilhelm von Leeb and Thirteen Others (‘German High Command trial’), 30 December 1947 – 28
October 1948, Law Reports of Trials of War Criminals (1949), Vol. XII, p. 1; Trial of Oswald Pohl andOthers (‘Pohl case’), Judgment of 3 November 1947, Trials of War Criminals Before the Nuernberg
Military Tribunals Under Control Council Law No. 10 (1950), Vol. V, p. 193.
842
Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection ofVictims of International Armed Conflict, entry into force 7 December 1978, 1125 UNTS 3, Articles 86(Failure to act) and 87 (Duty of commanders); see also Protocol Additional to the Geneva Conventions of
12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflict, entry into
force 7 December 1978, 1125 UNTS 609, Article 1(1) (referring to “responsible command”).

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international armed conflicts before the adoption of [Additional] Protocol I.”843 The
Chamber considers that this was also the case during the period relevant to the Amended
Closing Order.
477. Jurisprudence from the Nuremberg-era tribunals and more recent international
criminal tribunals also indicate that superior responsibility was not confined to militarycommanders under customary international law during the 1975 to 1979 period.844 As
detailed below, it is the degree of control that an individual exercises over others, rather
than the nature of his or her function, that is fundamental to the notion of superior
responsibility.
478. The Chamber finds that, at all times relevant to the Amended Closing Order, theforms of responsibility charged against the Accused had a basis in customaryinternational law.
2.7.1

Committing

479. According to jurisprudence from international criminal tribunals, “committing” as aform of responsibility includes both commission through the physical perpetration or
culpable omission of an act, and commission through the participation in a joint criminal
enterprise.

843

Prosecutor v. Hadžihasanović et al., Decision on Interlocutory Appeal Challenging Jurisdiction in
Relation to Command Responsibility, ICTY Appeals Chamber (IT-01-47-AR72), 16 July 2003, para. 29(also concluding that customary international law provided for superior responsibility in non-internationalarmed conflicts prior to 1991); see also Prosecutor v. Hadžihasanović et al., Decision on Joint Challenge toJurisdiction, ICTY Trial Chamber (IT-01-47-PT), 12 November 2002, para. 93(v) (as regards theapplicability of superior responsibility in the absence of an armed conflict).
844
See e.g., Trial of Karl Brandt and Others (‘Medical case’), Judgment of 19 August 1947, Trials of War
Criminals Before the Nuernberg Military Tribunals Under Control Council Law No. 10 (1950), Vols I-II,
pp. 1; Trial of Friedrich Flick and Others Case (‘Flick case’), Judgment of 22 December 1947, Trials of
War Criminals Before the Nuernberg Military Tribunals Under Control Council Law No. 10 (1950), Vol.
VI, p. 1; see also Čelebići Appeal Judgement, para. 195; Prosecutor v. Bagilishema, Judgement, ICTR
Appeals Chamber (ICTR-95-1A-A), 3 July 2002, para. 51; Brima Appeal Judgement, para. 257.

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2.7.1.1

Committing through physical perpetration or culpable omission

480. Committing, as it is principally understood, consists in the physical perpetration of acriminal act or the culpable omission of an act that was mandated by a rule of criminal
law.845481. The accused must have acted with the intent to commit the crime, or with anawareness of the substantial likelihood that the crime would occur as a consequence of
his or her conduct.846
2.7.1.2

Findings on committing through physical perpetration or
culpable omission

482. The Amended Closing Order states:
153. DUCH personally tortured or mistreated detainees at S21 on anumber of separate occasions and through a variety of means. Duch is
not indicted for the mode of liability of “commission” for the domestic
crime of torture.847

483. The Accused stated that he was personally involved in the interrogation of three
detainees, KOY Thuon, CHHIT Iv and MA Mengkheang. He acknowledged havingslapped CHHIT Iv to prevent him from being tortured by IN Lorn alias Nat. He also
admitted to closely monitoring the interrogations of MEN Sann alias Ya, and SIET Chhe

845

Tadić Appeal Judgement, para. 188; Prosecutor v. Kamuhanda, Judgement and Sentence, ICTR Trial
Chamber (ICTR-99-54A-T), 22 January 2004, para. 595; Sesay Trial Judgement, 2 March 2009, para. 249.
846
Prosecutor v. Limaj et al., Judgment, ICTY Trial Chamber (IT-03-66-T), 30 November 2005, para.
509; Sesay Trial Judgement, para. 250.
847
Amended Closing Order, para. 153 as amended by Decision on Appeal against the Closing Order. The
Chamber notes that the French version of the “Decision on Appeal Against Closing Order indicting Kaing
Guek Eav alias ‘Duch’” (which reads « Le paragraphe 153 de l’Ordonnance est remplacé comme suit :Duch n’a pas à répondre du crime de torture, tel que défini par le droit interne cambodgien, sur la base dumode de participation ‘commission’ ») does not match the English and Khmer versions (which read,respectively, “Paragraph 153 of the Closing Order is ordered to be amended by adding the following: Duchis not indicted for the mode of liability of ‘commission’ for the domestic crime of torture” and “Я˝ЯŪĠǻ˝ŏŠ‗Źợư аĕřБŁĠŃąС ĕЮũЩ₣ЮĉĄеĕĄНе Ūņй ЮŢŎĠЯĕ□ņşеĕНşřРşž₣ЮŪŁņ- űНş ņЊĕŪĳСŷģĕЮČ◦ŪĠŁĕсĮ◦Б Ūņ₣саĕŁũ◦◦УŲŠН₤ŪĳСŷЮŲЧ “ŁũŪĠŪĮЕĳ”ŉ
Ġ◦ĈũН‗˝ņŊ ЮŪŁņşĤĠсďĳЊЮΌЧŎ”) (emphasis added). The Chamber considers this disparity to be the result of a

naked translation error in the French version.

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alias Tum, but denied interrogating them himself. The Accused otherwise denied having
participated in interrogations or torturing detainees at S-21.848
484. Several witnesses stated that the Accused occasionally beat or kicked prisoners.849
Witness VANN Nath testified that the Accused kicked Civil Party BOU Meng in thehead, but the Civil Party himself denied this.850 The Chamber notes that some of the
Accused’s statements at trial regarding his involvement in torture were unclear orcontradictory.851 The Chamber is not satisfied however, that kicking or beatings by the
Accused have been proven to the required standard, nor that the slapping of CHHIT Iv
caused pain or suffering of the severity required for a finding of torture or otherinhumane acts.
485. Witness PRAK Khan initially stated that the Accused participated in the torture of awoman by administering electric shocks, beating her and removing her shirt.852 However,at trial, he testified that it was DEK Bou who, in the presence of the Accused, tortured thedetainee.853 The Accused denied that any such incident took place at all.854 Witness
PRAK Khan’s statements with respect to this incident are inconsistent and the Chamber
is not satisfied that this fact has been proven to the required standard.
486. Accordingly, the Chamber finds that the Accused is not responsible for having
committed torture or other inhumane acts through physical perpetration or culpableomission.

848

T., 16 June 2009 (Accused), pp. 29-30, 33-35; T., 22 June 2009 (Accused), pp. 24, 35; “Written
Record of Confrontation”, E3/396, ERN (English) 00166564.
849
T., 10 August 2009 (SAOM Met), pp. 85-86; T., 11 August 2009 (SAOM Met), p. 9; T., 29 June 2009
(VANN Nath), p. 100; T., 4 August 2009 (NHEM En statement read), pp. 119-120; “Written Record ofInterview of Witness Prak Khan”, E3/413, ERN (English) 00161556-00161557; T., 21 July 2009 (PRAK
Khan), pp. 34, 71; T., 22 July 2009 (PRAK Khan), p. 69.
850
T., 29 June 2009 (VANN Nath), p. 96; T., 1 July 2009 (BOU Meng), pp. 37-38.
851
Cf., T., 11 August 2009 (Accused), pp. 29-33; “Defence Position on the Facts Contained in the Closing
Order”, E5/11/6.1, para. 213(d) (disagree); T., 4 August 2009 (Accused), pp. 128-129.
852“Written Record of Interview of PRAK Khan”, E3/413, ERN (English) 0161558.
853
T., 21 July 2009 (PRAK Khan), pp. 23-24, 55-56; T., 22 July 2009 (Accused), pp. 57-58.
854
T., 16 June 2009 (Accused), pp. 39-40.

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2.7.1.3

Committing through participation in a joint criminal enterprise
2.7.1.3.1

Submissions and procedural history

487. The Co-Prosecutors have argued that the theory of criminal liability known as joint
criminal enterprise is applicable before the ECCC and to the charges against the Accused.
In particular, the Co-Prosecutors have drawn on the jurisprudence of the ICTY Appeals
Chamber, and its Nuremberg-era antecedents, to argue that the Accused “committed”
crimes charged in the Amended Closing Order through his participation in a joint
criminal enterprise.855 While not addressing the general applicability of joint criminal
enterprise before the ECCC, the Accused has specifically contested that this theory may
be applied to the charges against him.856
488. The Co-Investigating Judges did not include joint criminal enterprise as a mode of
responsibility in the Closing Order.857 The Pre-Trial Chamber denied the Co-Prosecutors’
appeal against this exclusion in its 5 December 2008 decision.858 The Pre-Trial Chamberreasoned that while facts relevant to a joint criminal enterprise were included in the CoProsecutors’ Introductory Submission, these facts formed part of Case File 002-19-092007 and were not included in Case File 001/18-07-2007 (the present case) following theissuance of the Separation Order.859 Further, while the Co-Prosecutors’ Rule 66 Final
Submission requested that the Co-Investigating Judges include joint criminal enterpriseas a form of responsibility in the Closing Order,860 no further relevant facts had been
855

“Co-Prosecutors' Request for the Application of Joint Criminal Enterprise”, E73.
“Defence Response to the Co-Prosecutors’ Request for the Application of the Joint Criminal Enterprise
Theory in the Present Case”, E73/2.
857
The Chamber notes that the Co-Investigating Judges have since stated in a separate matter that joint
criminal enterprise is an applicable form of liability before the ECCC and that it existed under customaryinternational law during the 1975 to 1979 period. See Case File 002/19-09-2007-ECCC-OCIJ, “Order on
the Application at the ECCC of the Form of Liability Known as Joint Criminal Enterprise”, D97/13; seealso Case File 002/19-09-2007-ECCC-OCIJ (PTC37) “Decision on the Appeals Against the CoInvestigative Judges Order on Joint Criminal Enterprise (JCE)”, D97/17/6 (Pre-Trial Chamber decisionfinding that the basic and systemic forms of joint criminal enterprise are applicable before the ECCC, butthat the extended form is not).
858
Decision on Appeal against the Closing Order, paras 108-142.
859
Decision on Appeal against the Closing Order, paras 117-123; see also Section 1.2.
860
Specifically, the Co-Prosecutors’ Rule 66 Final Submission stated as follows: “The JCE came into
existence on 15 August 1975 when SON Sen instructed NATH and DUCH to set up S-21. The JCE existed
through October 1975, when S-21 began its full-scale operations, to at least 7 January 1979 when the DK
regime collapsed. The purpose of the JCE was the systematic arrest, detention, ill-treatment, interrogation,
torture and execution of ‘enemies’ of the DK regime by committing the crimes described in this Final
856

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included in the scope of the investigation following the separation order. The Pre-Trial
Chamber held that, were the Accused to be indicted as “a participant in a joint criminal
enterprise, the perception of the level and extent of his responsibility would differ fromthe description of his responsibility in the Closing Order”. Thus, it concluded that the
Accused was “not informed of the allegation related to his participation in the S-21 [joint
criminal enterprise] prior to the [Co-Prosecutors’] Final Submission. The S-21 [joint
criminal enterprise] did not form part of the factual basis for the investigation and for thisreason the Pre-Trial Chamber will not add it to the Closing Order at this stage.” The PreTrial Chamber consequently declined to consider whether joint criminal enterprise was
implicitly included in Article 29 (new) of the ECCC Law or whether it formed part ofnational or international law during the 1975 to 1979 period.861
489. During the initial hearing on 17 February 2009, the Co-Prosecutors notified the
Chamber and the Parties that they would request that the Chamber apply joint criminal
enterprise as regards the charges against the Accused.862 On 8 June 2009, the CoProsecutors filed a written submission (“OCP JCE Request”) requesting that the Chamberdeclare joint criminal enterprise, in each of its three forms, to be generally applicable as amode of criminal liability before the ECCC and that it find that the Accused committed

Submission. An organized system of repression existed at S-21 throughout the entirety of the duration of
the JCE. All crimes occurring in S-21 and described in this Final Submission were within the purpose ofthis JCE. DUCH participated throughout the entire existence of the JCE, together with other participants inthis JCE who themselves participated for various durations and who included the former Secretary of S-21
NATH, and the other members of the S-21 Committee, namely KHIM Vath alias HOR and HUY Sre aswell as their subordinates.” “Rule 66 Final Submission regarding Kaing Guek Eav alias ‘Duch’”, D96,
paras 250-251.
861
Decision on Appeal against the Closing Order, paras 123, 136, 141-142.
862
T., 17 February 2009, pp. 9-10 (“[W]e would like to […] advise the Trial Chamber and the parties thatat Trial, during the proceedings, the Co-Prosecutors intend to invite the Trial Chamber to consider theapplicability of the concept of joint criminal enterprise to the proceedings against the [A]ccused. [… W]ewant to advise in advance the Trial Chamber that we deem this concept to be applicable to the proceedings
before this Chamber and indeed before this Court, that this concept represents and is supported by the facts
as they are laid out in the Case File, that more specifically the so called category 1 [basic] and 2 [systemic]of the joint criminal enterprise will allow the Trial Chamber to consider the full breadth of the culpableliability of the [A]ccused. We further submit that the Trial Chamber is indeed [limited] by the factual basis
within the case file, but is however, free to interpret the law to apply it and to legally characterize any legal
fact therein. This [independence] and indeed this duty, means that the Trial Chamber is not bound by any
decision of the pre-Trial Chamber on this issue. We will further argue, respectfully, that the Pre-Trial
Chamber erred in its evaluation of the applicability of this concept to this file and these proceedings and[…] invite the Trial Chamber and assist it in considering the applicability of this concept to theproceedings.”)

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crimes charged in the Amended Closing Order through his participation in a joint
criminal enterprise.863
490. On 29 June 2009, the Chamber notified the Parties that the issue of the Accused’s
responsibility as a participant in a joint criminal enterprise was live before it and invitedthe Parties to respond to the OCP JCE Request. The Chamber further stated that it
intended to rule on this Request in the Judgement.864
491. On 17 September 2009, co-counsel for the Accused filed a response to the OCP JCE
Request (“Accused JCE Response”), claiming that the OCP JCE Request was
inadmissible in light of the Pre-Trial Chamber’s decision to exclude joint criminal
enterprise from the Amended Closing Order. The Accused JCE Response further argued
that the OCP JCE Request should be denied on grounds that there was an insufficient
factual basis in the Amended Closing Order for a finding of joint criminal enterprise andthat this mode of criminal liability had not been pleaded with sufficient specificity by the
Co-Prosecutors. The Accused JCE Response added that, were the Chamber neverthelessto decide to apply joint criminal enterprise, the Accused must be invited to “make his
submissions on the new legal characterisation contemplated before the case is adjournedfor deliberation.”865
2.7.1.3.2

Internal Rule 98(2)492. As a preliminary matter, the Chamber notes that it is not bound by the legal
characterisations adopted by the Co-Investigating Judges or the Pre-Trial Chamber in the
Amended Closing Order. Indeed, Internal Rule 98(2) states:[t]he judgment shall be limited to the facts set out in the Indictment. The
Chamber may, however, change the legal characterisation of the crime as
set out in the Indictment, as long as no new constitutive elements are
introduced.

863“Co-Prosecutors' Request for the Application of Joint Criminal Enterprise”, E73; see also “Group 3
Civil Parties – Brief in Support of the co-Prosecutors’ Request for the Application of the Joint Criminal
Enterprise Theory in the Present Case”, E73/3.
864
T., 29 June 2009, pp. 8-9.
865
“Defence Response to the Co-Prosecutors’ Request for the Application of the Joint Criminal Enterprise
Theory in the Present Case”, E73/2, paras 7-10, 15-27, 38.

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493. The Parties do not dispute that Internal Rule 98(2) permits changes to the legal
characterisation of both the crimes and the forms of responsibility included in the
Amended Closing Order.866 While comparable provisions in the Cambodian legal system
do not specifically address changes to a form of responsibility, the Chamber is satisfied
that this type of change is permissible under Internal Rule 98(2).867
494. Internal Rule 98(2) mandates, however, that any legal re-characterisation made by
the Chamber be limited to the facts set out in the Amended Closing Order. This approachaccords with the powers conferred upon Trial Chambers in the Cambodian legal
system,868 as well as in French legal system upon which it was originally modelled.869
The Chamber considers that the proviso of Internal Rule 98(2) that no new constitutive
elements be introduced is a reiteration of this well-established limitation, namely that any
re-characterisation must not go beyond the facts set out in the charging document.
495. The ICC’s Regulations of the Court similarly permit its Trial Chambers to change
the legal characterisation of facts following the start of the trial proceedings.870 Before theinternational ad hoc tribunals, however, Trial Chambers have generally required a formal
amendment to the charges against the accused where the facts establish that the accusedhas committed a different or more serious offence than that indicated in the indictment.871
It follows from the many structural differences between the international ad hoc tribunals
and the ECCC that certain of the common law-inspired procedural mechanisms of theformer have no counterpart in the civil law-oriented framework of the latter. In contrast
to the ICTY and ICTR, no comparable mechanism exists within the ECCC that would866

See e.g., “Defence Response to the Co-Prosecutors’ Request for the Application of the Joint Criminal
Enterprise Theory in the Present Case”, E73/2, fn. 10.
867
See Regulation 55 (Authority of the Chamber to modify the legal characterisation of facts) of the ICC’s
Regulations of the Court (ICC-BD/01-01-04, entry into force 26 May 2004) (allowing for a change to thelegal characterisation of facts to accord with a different form of participation).
868
See e.g., Article 348 of the 2007 Code of Criminal Procedure; Articles 10 and 175 of the 1993 (SOC)
Code of Criminal Procedure.
869
See Cour de Cassation, Cass. Crim., 22 April 1986, Bulletin Criminel, No. 136 (‘‘[I]l appartient aux
juridictions correctionnelles de modifier la qualification des faits et de substituer une qualification nouvelleà celle sous laquelle ils leur étaient déférés […] à la condition qu’il ne soit rien changé ni ajouté aux faits dela prévention et que ceux-ci restent tels qu’ils ont été retenus dans l’acte de saisine.’’).
870
See Regulation 55 (Authority of the Chamber to modify the legal characterisation of facts) of the ICC’s
Regulations of the Court (ICC-BD/01-01-04, entry into force 26 May 2004).
871
See Kupreškić et al. Trial Judgement, para. 748.

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allow either the Parties or the Chamber to formally amend a Closing Order. The basis forthe re-characterisation of facts before the ECCC is instead Internal Rule 98(2), which
expressly envisages this eventuality, subject to fair trial safeguards.
496. The Chamber thus considers that Internal Rule 98(2) enables it to change the legal
characterisation of facts contained in the Amended Closing Order to accord with a newform of responsibility provided that it does not go beyond those facts. In doing so, theChamber must also ensure that (i) no violation of the fair trial rights of the Accused is
entailed and (ii) the form of responsibility in question is applicable before the ECCC.
2.7.1.3.2.1 Fair trial rights of the Accused497. Article 35 (new) of the ECCC Law states in relevant part:
In determining charges against the accused, the accused shall be equallyentitled to the following minimum guarantees, in accordance with Article
14 of the International Covenant on Civil and Political Rights.
a. to be informed promptly and in detail in a language that they
understand of the nature and cause of the charge against them;b. to have adequate time and facilities for the preparation of their defence
and to communicate with counsel of their own choosing;498. The European Court of Human Rights, whose founding document contains similar
fair trial provisions,872 has stated that while a criminal court may change the legal
characterisation of facts over which it has jurisdiction, it must afford the accused thepossibility of exercising his or her defence rights “in a practical and effective manner
and, in particular, in good time.”873 In practice, it has found that this entails ensuring that872

See Article 6(3) of the ECHR (“Everyone charged with a criminal offence has the following minimum
rights: a) to be informed promptly, in a language which he understands and in detail, of the nature andcause of the accusation against him; b) to have adequate time and facilities for the preparation of his
defence […]”).
873
Pélissier and Sassi v. France, Judgment of 25 March 1999, ECtHR (no. 25444/94), 25 March 1999,
para. 62; see also I.H. and Others v. Austria, Judgment of 20 April 2006, ECtHR (no. 42780/98), 20 April
2006, para. 34 (“in order that the right to defence be exercised in an effective manner, the defence musthave at its disposal full, detailed information concerning the charges made, including the legal
characterisation that the court might adopt in the matter. This information must either be given before thetrial in the bill of indictment or at least in the course of the trial by other means such as formal or implicit
extension of the charges. Mere reference to the abstract possibility that a court might arrive at a different
conclusion than the prosecution as regards the qualification of an offence is clearly not sufficient.”)

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the accused is aware of the possibility of the legal re-characterisation and provided with asufficient opportunity to defend against it.874
499. Similarly, Regulation 55 adopted by the ICC allows that Court’s Trial Chambers tochange the legal characterisation of facts without a formal amendment of the charges inaccordance with the following procedural safeguards:
1. In its decision under article 74, the Chamber may change the legal
characterisation of facts to accord with the crimes under articles 6, 7 or 8,
or to accord with the form of participation of the accused under articles
25 and 28, without exceeding the facts and circumstances described in
the charges and any amendments to the charges.
2. If, at any time during the trial, it appears to the Chamber that the legal
characterisation of facts may be subject to change, the Chamber shallgive notice to the participants of such a possibility and having heard theevidence, shall, at an appropriate stage of the proceedings, give theparticipants the opportunity to make oral or written submissions. The
Chamber may suspend the hearing to ensure that the participants haveadequate time and facilities for effective preparation or, if necessary, it
may order a hearing to consider all matters relevant to the proposedchange.
3. For the purposes of sub-regulation 2, the Chamber shall, in particular,
ensure that the accused shall:(a) Have adequate time and facilities for the effective preparation of hisor her defence in accordance with article 67, paragraph 1 (b); and(b) If necessary, be given the opportunity to examine again, or haveexamined again, a previous witness, to call a new witness or to present
other evidence admissible under the Statute in accordance with article
67, paragraph 1 (e).875

500. The Appeals Chamber of the ICC has confirmed that a change in the legal
characterisation of facts pursuant to Regulation 55 is not inherently in breach of an
accused’s right to a fair trial.876 It has further stated that the manner in which the874

See Abramyan v. Russia, Judgment of 9 October 2008, ECtHR (no. 10709/02), 9 October 2008, paras36-40; see also Dallos v. Hungary, Judgment of 1 March 2001, ECtHR (no. 29082/95), 1 March 2001,
paras 47-53 (finding that a re-qualification of an offence did not impair the rights of the defence when theaccused had sufficient opportunity to defend himself during the review proceedings); Sipavičus v.
Lithuania, Judgement of 21 February 2002, ECtHR (no. 49093/99), 21 February 2002, paras 23-34.
875
Regulation 55 (Authority of the Chamber to modify the legal characterisation of facts) of the ICC’s
Regulations of the Court (ICC-BD/01-01-04, entry into force 26 May 2004).
876
Situation in the Democratic Republic of the Congo, the Prosecutor v. Lubanga, Judgement on the
Appeals of Mr. Lubanga Dyilo and the Prosecutor against the Decision of Trial Chamber I of 14 July 2009
entitled “Decision giving notice to the parties and participants that the legal characterisation of the facts

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procedural safeguards provided for in Regulation 55(2) and (3) are to be applied, andwhether any additional safeguards may be required to fully protect the rights of theaccused, will depend on the circumstances of the case.877
501. In the present case, the Co-Prosecutors reiterated throughout the trial their requestthat the Chamber apply joint criminal enterprise, including in its systemic form, to thecharges against the Accused.878 The Co-Prosecutors indicated the nature and purpose of
the joint criminal enterprise, the period over which it existed, and the identity of thoseengaged in it.879 On 29 June 2009, following the OCP JCE Request, the Chamberprovided notice to the Accused that the issue of the applicability of joint criminal
enterprise was before it and that it intended to rule on the issue in the Judgement.880 The
Accused was provided with an opportunity to respond to the OCP JCE Request and filed
his Response on 17 September 2009.

may be subject to change in accordance with Regulation 55(2) of the Regulations of the Court”, ICC
Appeals Chamber (ICC-01/04-01/06 OA 15 OA 16), 8 December 2009, para. 87 (reversing the Trial
Chamber’s interpretation of Regulation 55 but finding that changes made to the legal characterisation
pursuant to that Regulation would not otherwise be inherently in breach of the accused’s fair trial rights).
877
Situation in the Democratic Republic of the Congo, the Prosecutor v. Lubanga, Judgement on the
Appeals of Mr. Lubanga Dyilo and the Prosecutor against the Decision of Trial Chamber I of 14 July 2009
entitled “Decision giving notice to the parties and participants that the legal characterisation of the facts
may be subject to change in accordance with Regulation 55(2) of the Regulations of the Court”, ICC
Appeals Chamber (ICC-01/04-01/06 OA 15 OA 16), 8 December 2009, paras. 85-87.
878
T., 17 February 2009, pp. 9-10; see also T., 31 March 2009, p. 56 (“As we have outlined from the very
beginning of this process, we urge this Court to consider and apply Joint Criminal Enterprise, or JCE to thefacts of this case.”); “Co-Prosecutors' Request for the Application of Joint Criminal Enterprise”, E73; “CoProsecutors’ Final Trial Submissions with Annexes 1-5”, E159/9, paras 323-334; see also Section 2.7.1.3.1.
879
As regards the nature, purpose and time period, see “Co-Prosecutors’ Final Trial Submissions with
Annexes 1-5”, E159/9, para. 331 (“The evidence before the Chamber establishes that the Accusedcommitted the crimes described as a participant in a JCE. The JCE came into existence on 15 August 1975
when Son Sen instructed In Lorn alias Nat, and the Accused to establish S-21. The JCE existed until atleast 7 January 1979 when the DK regime collapsed and S-21 was abandoned. The purpose of the JCE was
the systematic arrest, detention, ill-treatment, interrogation, torture and execution of “enemies” of the DK
regime by committing the crimes described in this Submission. An organised system of repression existed
at S-21 throughout the entirety of the duration of the JCE. All crimes occurring in S-21 were within the
purpose of this JCE.”); see also “Co-Prosecutors' Request for the Application of Joint Criminal Enterprise”,
E73, para. 24; “Rule 66 Final Submission Regarding Kaing Guek Eav alias ‘Duch’”, D96, 18 July 2008,
para. 250. As regards the identity of those engaged in the joint criminal enterprise, see “Co-Prosecutors’
Final Trial Submissions with Annexes 1-5”, E159/9, para. 332 (“The Accused took part in the JCE
throughout its entire existence, together with others who participated for various durations, including Nat,the former Secretary of S-21, and the other members of the S-21 Committee, namely Hor and Huy Sre, as
well as their subordinates”); see also “Co-Prosecutors' Request for the Application of Joint Criminal
Enterprise”, E73, para. 25; “Rule 66 Final Submission Regarding Kaing Guek Eav alias ‘Duch’”, D96,
para. 251.
880
T., 29 June 2009, pp. 8-9.

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502. The Chamber considers that the OCP JCE request might have been presented in amore timely and coherent manner, and pleaded with greater specificity. The Chamber
nevertheless rejects the Accused’s contention in his JCE Response that the Chamber was
obligated to determine the applicability of joint criminal enterprise prior to its
deliberations and to provide him with still further opportunity to respond to that alreadyaccorded.881 The Accused was repeatedly made aware of, and provided with a timely
opportunity to address, the specific possibility that joint criminal enterprise, including its
systemic form, might be held applicable to the charges against him. Co-counsel for the
Accused also indicated their awareness that the Chamber might apply joint criminal
enterprise in the current proceedings.882
503. Accordingly, the Chamber considers that no breach of the Accused’s fair trial rights
would be entailed by the legal re-characterisation envisioned.
2.7.1.3.3

Applicability of joint criminal enterprise
before the ECCC

2.7.1.3.3.1 The notion of joint criminal enterprise504. The notion of “joint criminal enterprise” came to prominence through jurisprudenceof the ICTY Appeals Chamber, which found that an accused could be held criminallyresponsible for having “committed” a crime through his participation in a joint criminal
enterprise.883 Joint criminal enterprise is not, however, a novel creation of the ICTY.884
As noted by ICTY Appeals Chamber, the underlying legal concepts upon which joint
criminal enterprise is based can be traced back to the Nuremberg-era documents andjudgements and exist in various forms in many national legal systems.885

881

See “Defence Response to the Co-Prosecutors’ Request for the Application of the Joint Criminal
Enterprise Theory in the Present Case”, E73/2, paras 32-39.
882
T., 31 March 2009 (Defence), p. 83 (“In addition, the international co-lawyer, Mr. Robert Petit said thetheory of the joint criminal enterprise shall be implemented and exercised for the S-21 crimes. I do notdeny to that, please go ahead, however it needs to be exercised for all those 195 prisons as well.”); T., 20
July 2009 (Defence), p. 16 (arguing that witnesses should be warned by the Chamber that they might beheld liable as participants with the Accused in a joint criminal enterprise) (closed session).
883
See generally Tadić Appeal Judgement, paras 185-234.
884
See Prosecutor v. Krajišnik, Judgement, ICTY Appeals Chamber (IT-00-39-A), 17 March 2009,
Separate Opinion of Judge Shahabuddeen, para. 54.
885
See Tadić Appeal Judgement, paras 195-220, 224-225.

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505. Individual criminal responsibility for participation in a common criminal plan or
purpose was included in Article 6 of the Nuremberg Charter and in Control Council Law
No. 10.886 The subsequent case law of Nuremberg-era tribunals, including that of national
war crimes trials, confirmed that such participation could be the basis for individual
criminal responsibility.887 Notably, these cases based convictions upon individual
participation in a common criminal plan or purpose carried out within concentration
camps. As noted with respect to the Dachau Concentration Camp case:
It seems, therefore, that what runs throughout the whole of this case, likea thread, is this: that there was in the camp a general system of cruelties
and murders of the inmates (most of whom were allied nationals) andthat this system was practised with the knowledge of the accused, whowere members of the staff, and with their active participation. Such acourse of conduct, then, was held by the court in this case to constitute‘acting in pursuance of a common design to violate the laws and usagesof war’. Everybody who took any part in such common design was held
guilty of a war crime, though the nature and extent of the participation
may vary.888

506. Based in large part on these Nuremberg-era pronouncements, the ICTY Appeals
Chamber found that a common criminal plan or purpose doctrine was recognised as
forming part of customary international law.889 The jurisprudence of the ICTY, which has
been followed by the other ad hoc international criminal tribunals, adopted the term
886

See Article 6 of the Nuremberg Charter (which states that “[l]eaders, organizers, instigators andaccomplices participating in the formulation or execution of a common plan or conspiracy to commit[crimes against peace, war crimes, and/or crimes against humanity] are responsible for all acts performedby any persons in execution of such plan”); see also Article 2 of Control Council Law No. 10.
887
See e.g., Trial of Otto Sandrock and Three Other (Almelo Case), 24-26 November 1945, Law Reportsof Trials of War Criminals (1947), Vol. I, p. 35; see also Trial of Franz Schonfeld and Nine Other, 11-26
June 1946, Law Reports of Trials of War Criminals (1949), Vol. XI, p. 64.
888
Trial of Martin Gottfried Weiss and thirty-nine others (Dachau Concentration Camp case), 15
November-13 December 1945, Law Reports of Trials of War Criminals (1949), Vol. XI, p. 14; see also
Trial of Josef Kramer and 44 others (Belsen case), 17 September-17 November 1945, Law Reports of
Trials of War Criminals (1947), Vol. II, p. 120 (in which the Judge Advocate summarised with approval
the legal argument of the Prosecutor in the following terms: “The case for the Prosecution is that all theaccused employed on the staff at Auschwitz knew that a system and a course of conduct was in force, andthat, in one way or another in furtherance of a common agreement to run the camp in a brutal way, all thosepeople were taking part in that course of conduct. They asked the Court not to treat the individual acts
which might be proved merely as offences committed by themselves, but also as evidence clearly
indicating that the particular offender was acting willingly as a party in the furtherance of this system.
They suggested that if the Court were satisfied that they were doing so, then they must, each and every oneof them, assume responsibility for what happened.”)889
Tadić Appeal Judgement, paras 185-234 (finding that the notion of a common design existed undercustomary international law at least from 1992).

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E188“joint criminal enterprise” to describe this particular form of criminal liability. Three
distinct categories of joint criminal enterprise have been identified.890
507. In the first, or “basic” category of joint criminal enterprise, all members, acting
pursuant to a common purpose, possess the same criminal intent. An example is a plan
formulated by the participants in the joint criminal enterprise to kill where, although eachof the participants may carry out a different role, each of them has the intent to kill. The
second category, “systemic” joint criminal enterprise, is a variant of the basic form,characterised by the existence of an organised system of ill-treatment. An example isextermination or concentration camps, in which the prisoners are killed or mistreatedpursuant to the joint criminal enterprise. The third category, “extended” joint criminal
enterprise, concerns cases involving a common purpose to commit a crime where one ofthe perpetrators commits an act which, while outside the common purpose, isnevertheless a natural and foreseeable consequence of the effecting of that common
purpose.891
508. The jurisprudence has identified three broad objective elements shared by all threeof these categories of joint criminal enterprise.892 First, a plurality of persons is required,though they need not be organised in a military, political or administrative structure.
While it is necessary to identify the plurality of persons belonging to the joint criminal
enterprise, “it is not necessary to identify by name each of the persons involved”.893
Second, the existence of a common purpose that amounts to or involves the commissionof a crime over which the Chamber has jurisdiction is required. There is no necessity forthis purpose to have been previously arranged or formulated. It may materialise
extemporaneously and be inferred from the facts.894 Third, the participation of theaccused in the common purpose is required. This participation need not involve the890

Prosecutor v. Milutinović et al., Decision on Dragoljub Ojdanić’s Motion Challenging Jurisdiction –Joint Criminal Enterprise, ICTY Appeals Chamber (IT-99-37-AR72), 21 May 2003, para. 36; see also
Gacumbitsi Appeal Judgement, para. 158; Fofana Trial Judgement, para. 206.
891
Vasiljević Appeal Judgement, paras 97-99.
892
Prosecutor v. Brđanin, Judgement, ICTY Appeals Chamber (IT-99-36-A), 3 April 2007, para. 364.
893
Prosecutor v. Brđanin, Judgement, ICTY Appeals Chamber (IT-99-36-A), 3 April 2007, para. 430.
894
Tadić Appeal Judgement, para. 227; see also Kvočka Appeal Judgement, para. 118 (stating that inregards to the systemic form of joint criminal enterprise, it is not necessary to establish an agreement inrelation to each of the crimes committed with a common purpose).

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commission of a specific crime but may take the form of assistance to, or contribution, tothe execution of the common purpose.895 The contribution of the accused need not benecessary or substantial, but it should at least be a significant contribution to the crimes
for which he or she is found responsible.896
509. The three categories of joint criminal enterprise nonetheless vary with regard totheir mental elements. Under the basic form of joint criminal enterprise, the accused must
intend to perpetrate the crime and this intent must be shared by all co-perpetrators. The
systemic form of joint criminal enterprise, which is a variant of the basic form but
specifically concerns a common concerted system of ill-treatment (e.g., an exterminationor concentration camp), requires that the accused have knowledge of the nature of thesystem and intend to further the common system of ill-treatment.897 For its part, theextended form concerns acts, which, although outside of the common plan for which theaccused held a shared intent, are a natural and foreseeable consequence of the common
plan. Here, the accused must be aware that the crimes outside of the common plan are anatural and foreseeable consequence of the plan and must have willingly taken thisrisk.898
510. In addition, a number of national legal systems uphold legal principles that are
generally akin to those of joint criminal enterprise.899 In particular, Article 82 of the 1956
Penal Code makes reference to co-perpetration as a form of responsibility deriving fromdirect participation. Article 82 of the 1956 Penal Code further states that any voluntary
participant in a crime, whether a direct or indirect participant, may be equally liable withthe principal of the crime.900 While Cambodian jurisprudence on the 1956 Penal Codecould not be located, French jurisprudence is instructive given that the 1956 Penal Codewas modelled on the French criminal code. Relevant French jurisprudence reveals abroad understanding of co-authorship or co-perpetration that may also partially overlap
895

Vasiljević Appeal Judgement, para. 100.
Prosecutor v. Krajišnik, Judgement, ICTY Appeals Chamber (IT-00-39-A), 17 March 2009, para. 215.
897
Vasiljević Appeal Judgement, para. 101; see also Kvočka Appeal Judgement, para. 118 (stating that for
specific intent crimes, like persecution, the accused must also share the discriminatory intent).
898
Vasiljević Appeal Judgement, para. 101.
899
See Tadić Appeal Judgement, paras 224-225 (surveying national legal systems for legal principles thatoverlap with joint criminal enterprise).
900
Article 82 of the 1956 Penal Code; see also Article 26 of the 2009 Penal Code.
896

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with the notion of joint criminal enterprise.901 The Chamber notes that references tonational legislation and case law only serve to illustrate that the notion of joint criminal
enterprise (or common purpose) upheld in international criminal law has an underpinningin many national systems, including that of Cambodia. As correctly noted by the PreTrial Chamber in a decision on a separate matter, while similarities exist between
participation in a joint criminal enterprise (in its basic and systemic forms) and coperpetration under the 1956 Penal Code, the two notions are nevertheless not identical.
While both require the shared intent by participants that the crime be committed,“participation in a JCE, even if it has to be significant, would appear to embracesituations where the accused may be more remote from the actual perpetration of theactus reus of the crime than the direct participation required under domestic law.”902
Ultimately, joint criminal enterprise as applied by this Chamber follows from customaryinternational law, not national law.
2.7.1.3.3.2 Applicability pursuant to Article 29(new) of the ECCC Law
511. Article 29 (new) of the ECCC Law does not expressly refer to the notion of joint
criminal enterprise as a form of responsibility. The language of Article 29 (new) of the
ECCC Law does, however, mirror that of the Statute of the ICTY.903 Notably, thejurisprudence of the ICTY has held that the word “committed” in Article 7(1) of its
Statute implicitly includes participation in a joint criminal enterprise.904 The Chambers of
the ICTR and the SCSL have similarly reasoned that joint criminal enterprise is included
as a form of responsibility within their own Statutes.905 The Chamber considers that the901

See e.g., Cour de Cassation, Chambre Criminelle, 4 décembre 1974, Gaz. Pal. 1975, Somm. 93 ; Courde Cassation, Chambre Criminelle, 13 Juin 1972, Bull. crim. no. 195.
902
Case File 002/19-09-2007-ECCC-OCIJ (PTC37) “Decision on the Appeals Against the CoInvestigative Judges Order on Joint Criminal Enterprise (JCE)”, D97/17/6, 20 May 2010, para. 41.
903
See Article 7(1) of the ICTY Statute (“A person who planned, instigated, ordered, committed orotherwise aided and abetted in the planning, preparation or execution of a crime referred to in Articles 2 to
5 of the present Statute, shall be individually responsible for the crime.”); see also Articles 6(1) of the
ICTR and SCSL Statutes.
904
See Tadić Appeal Judgement, para. 190 .
905
See Gacumbitsi Appeal Judgement, para. 158; Fofana Trial Judgement, para. 208.

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notion of commission through participation in a joint criminal enterprise is included in
Article 29 (new) of the ECCC Law.906
512. The Chamber further considers that, in light of the Nuremberg Charter, Control
Council Law No. 10 and the subsequent international jurisprudence discussed above, thesystemic form of joint criminal enterprise, along with the basic form from which it
derives, were part of customary international law during the 1975 to 1979 period.907
Given the customary status of joint criminal enterprise (in its basic and systemic forms)
since the Nuremberg-era, as well as its resonance with the Cambodian law concept of coperpetration applicable at the time, the Chamber considers that the requirements ofaccessibility and foreseeability are satisfied (Section 1.5).
513. The Chamber notes that the Co-Prosecutors indicated that they would rely only on
the basic and systemic forms of joint criminal enterprise during the initial hearing,908 andsought to apply the extended form of joint criminal enterprise only in the alternative inboth their Final Trial Submissions and their Rule 66 Final Submissions.909 The Chamberconsequently considers that it need not generally pronounce on the customary status of
the third extended form of joint criminal enterprise during the 1975 to 1979 period.
2.7.1.4

Findings on committing through participation in a joint criminal
enterprise514. The Chamber has made extensive findings regarding the criminal nature of the S-21
system supervised by the Accused, which clearly resonate with the systemic form of joint
criminal enterprise. It has found that, following the 15 August 1975 meeting with SON
Sen, the Accused helped establish S-21, along with IN Lorn alias Nat, its initial
906

Case File 002/19-09-2007-ECCC-OCIJ (PTC37) “Decision on the Appeals Against the CoInvestigative Judges Order on Joint Criminal Enterprise (JCE)”, D97/17/6, 20 May 2010, para. 49.
907
Case File 002/19-09-2007-ECCC-OCIJ (PTC37) “Decision on the Appeals Against the CoInvestigative Judges Order on Joint Criminal Enterprise (JCE)”, D97/17/6, 20 May 2010, para. 69; see alsopara. 71 (regarding the similarities between the basic and systemic forms).
908
See T., 17 February 2009, pp. 9-10 (referring only to the first two forms of joint criminal enterprise);see, however, “Co-Prosecutors' Request for the Application of Joint Criminal Enterprise”, E73, 8 June 2009
(arguing for the applicability of all three forms of joint criminal enterprise).
909“Co-Prosecutors’ Final Trial Submissions with Annexes 1-5”, E159/9, 11 November 2009, para. 334;
see also “Rule 66 Final Submission Regarding Kaing Guek Eav alias ‘Duch’”, D96, 18 July 2008, para.
253.

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Chairman (Section 2.3.3). As Chairman and Secretary of S-21, the Accused continued torefine and direct S-21’s operations with the assistance of the junior members of the S-21
Committee, namely KHIM Vak alias Hor, and NUN Huy alias HUY Sre, until its
abandonment on 7 January 1979 (Section 2.3.3.4). The Accused acted with these
individuals, and through his subordinates, to operate the S-21 complex, a facility
dedicated to the unlawful detention, interrogation and execution of perceived enemies of
the CPK, both domestic and foreign. A concerted system of ill-treatment and torture waspurposefully implemented in order to subjugate detainees and obtain their confessions
during interrogations (Sections 2.3 and 2.4). S-24 was also used as an adjunct facility
devoted to forced labour for detainees viewed as suspect by the CPK (Sections 2.3.3.7
and 2.4.2.1). As Deputy and then Chairman and Secretary of S-21, the Accused was
deeply enmeshed in this criminal system, and contributed substantially to its
implementation and development, including by ensuring the arrest and detention of someS-21 staff, and by being physically present during the arrest of certain notable detainees(Section 2.3.3.5.3).
515. The Chamber finds that the Accused knew of the criminal nature of the S-21 systemand that he acted with the intent to further its criminal purpose. Further, the Chamber has
found, by majority, the Accused’s specific intent to discriminate against S-21 detainees
on the basis of their perceived opposition to the CPK (Section 2.5.3.14.4).
516. Accordingly, the Chamber finds that, as a result of his participation in the systemic
joint criminal enterprise at S-21, the Accused bears individual criminal responsibility forthe following offences as crimes against humanity: murder, extermination, enslavement,
imprisonment, torture, persecution on political grounds, and other inhumane acts; as well
as for the following grave breaches of the Geneva Conventions of 1949: wilful killing,
torture and inhumane treatment, wilfully causing great suffering or serious injury to bodyor health, wilfully depriving a prisoner of war or civilian of the rights of a fair and regulartrial, and unlawful confinement of a civilian.
517. Concurrent convictions for additional forms of responsibility listed in Article 29(new) of the ECCC Law do not amount to additional convictions for the same crime.

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Establishing the Accused’s responsibility pursuant to additional forms may assist the
Chamber at sentencing in determining the full extent of his participation in the crimes forwhich he is responsible.910
2.7.2

Planning

518. Planning requires that one or more persons design the criminal conduct that
constitutes one or more crimes that are later perpetrated.911 It must be demonstrated thatthe planning was a substantially contributing factor to the criminal conduct.912
519. The accused must have acted with the intent that the crime be committed, or havebeen aware of the substantial likelihood that the crime would be committed in theexecution or implementation of that plan.913
2.7.3 Findings on planning520. The Amended Closing Order states:
159. DUCH was substantially involved in formulating or endorsing theplan to establish S21 with the knowledge that its function would be
criminal in nature. Further, following S21’s formation, DUCH planned
the specific crimes committed therein, with the intention that they be
carried out.914

521. The Accused helped design the functioning of S-21 from its inception. He thencontinually strove to make S-21 a more efficient operation, including by choosing to
relocate S-21 to the Pohnea Yat Lycée location and selecting Choeung Ek as an execution
site (Sections 2.3.3.1, 2.3.3.4.1 and 2.3.3.6). The Chamber finds that the Accused’splanning substantially contributed to the crimes later perpetrated at S-21. The Chamber
further finds that the Accused intended these crimes to be committed, or at the very least

910

Cf., Prosecutor v. Kamuhanda, Judgement, ICTR Appeals Chamber (ICTR-99-54A-A), 19 September
2005, Separate and Partially Dissenting Opinion of Judge Shahabuddeen, paras 405-416.
911
Kordić Appeal Judgement, para. 26.
912
Kordić Appeal Judgement, para. 26; Sesay Appeal Judgement, paras 687, 1170.
913
Kordić Appeal Judgement, para. 31; Sesay Trial Judgement, para. 268.
914
Amended Closing Order, para. 159.

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was aware of the substantial likelihood that they would be committed in the execution or
implementation of his planning.
2.7.4

Instigating

522. Instigating requires that one person, through either an act or omission, prompts
another person to commit a crime.915 Liability for instigating may ensue through implicit,
written, or other non-verbal prompting by the accused. In contrast to ordering andsuperior responsibility, instigating does not require that the accused have any authority
over the perpetrator. Instigating also requires more than merely facilitating thecommission of crime, which may otherwise suffice for its aiding and abetting.916 The
instigation must be a substantially contributing factor to the criminal conduct that waslater perpetrated.917
523. A superior’s consistent failure to prevent or punish a perpetrator’s crimes may, insome instances, amount to instigating the perpetrator to commit further crimes.918
524. The accused must have intended to provoke or induce the commission of the crime,or have been aware of the substantial likelihood that a crime would be committed in theexecution of the instigation.919

915

Kordić Appeal Judgement, para. 27.
Prosecutor v. Orić, Judgement, ICTY Trial Chamber (IT-03-68-T), 30 June 2006, para. 271.
917
Prosecutor v. Karera, Judgement, ICTR Appeals Chamber (ICTR-01-74-A), 2 February 2009, para.
317; Kordić Appeal Judgement, para. 27.
918
Prosecutor v. Hazihasanovic et al., Judgment, ICTY Appeals Chamber (IT-01-47-A), 22 April 2008,
para. 30 ("[T]he Appeals Chamber stresses that a superior’s failure to punish a crime of which he has actual
knowledge is likely to be understood by his subordinates at least as acceptance, if not encouragement, ofsuch conduct with the effect of increasing the risk of new crimes being committed”); Prosecutor v.
Bagilishema, Judgment, ICTR Trial Chamber I (ICTR-95-IA-T), 7 June 2001, para. 50; see also Sesay
Trial Judgement), para. 311; Prosecutor v. Halilovic, Judgement, ICTY Trial Chamber (IT-01-48-T), 16
November 2005, paras 95-96.
919
Kordić Appeal Judgement, para. 32; Sesay Trial Judgement, para. 271.
916

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2.7.5 Findings on instigating
525. The Amended Closing Order states:160. As Deputy Chairman and Chairman of S21, and also as an active
CPK Party member, DUCH induced, encouraged and prompted the staff
at S21 to commit the crimes described in this Closing Order by
instructing and teaching Party doctrine and practice, assigning tasks, andthrough his presence and participation in all aspects of the security
complex. His leadership and participation were clear contributing factors
to the overall functioning of S21 and demonstrated an intention that thestaff of S21 carry out these crimes.920

526. The Accused indoctrinated S-21 staff, including the impressionable youths hespecifically sought out as subordinates, to be cruel and to treat all S-21 detainees as
enemies of the CPK. He also provided practical training to the S-21 interrogators on theuse of physical and psychological violence against the detainees (Section 2.3.3.5.2). The
Chamber considers that the indoctrination and training carried out by the Accused
contributed substantially to the crimes later perpetrated at S-21. The Chamber further
finds that the Accused intended to provoke these crimes, or at the very least was aware of
the substantial likelihood that they would be committed in the execution of his
instigation.
2.7.6

Ordering

527. Ordering requires that a person in a position of authority instructs another person tocommit a crime.921 No formal superior-subordinate relationship between the two persons
is required.922 The person giving the order need only possess the authority, be it in law orin fact, to order the commission of the crime.923 Liability for ordering a crime may ensue
where an accused issues, passes down, or otherwise transmits the order, including

920

Amended Closing Order, para. 160.
Kordić Appeal Judgement, para. 28; Prosecutor v. Kajelijeli, Judgment and Sentence, ICTR Trial
Chamber (ICTR-98-44A-T), 1 December 2003, para. 763; Sesay Appeal Judgement, para. 164.
922
Kordić Appeal Judgement, para. 28; Semanza v. Prosecutor, Judgement, ICTR Appeals Chamber(ICTR-97-20-A), 20 May 2005 (“Semanza Appeal Judgement”), para. 361; Sesay Trial Judgement, para. 273.
923
Semanza Appeal Judgement, para. 361; Gacumbitsi Appeal Judgement, paras 181-182; Prosecutor v.
Limaj et al., Judgment, ICTY Trial Chamber (IT-03-66-T), 30 November 2005, para. 515; Sesay Trial
Judgement, para. 273.
921

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through intermediaries.924 There is no requirement that an order be given in writing or inany particular form, and the existence of an order may be proven through circumstantial
evidence.925 It must be established that the issuance of the order was a substantiallycontributing factor to the criminal conduct that was later perpetrated.926
528. The accused must have either intended to bring about the commission of the crime,or have been aware of the substantial likelihood that the crime would be committed as aconsequence of the execution or implementation of the order.927
2.7.7 Findings on ordering
529. The Amended Closing Order states:
154. DUCH held a position of authority at S21 throughout the temporaljurisdiction of the court. From this position of authority, DUCH had theability to direct, instruct or order his subordinates to perform any task
associated with the functioning of the S21 complex. The chain ofcommand at S21 was clearly delineated and the roles of its staff members
were rigorously defined and enforced.
155. Orders and instructions, whether originating from DUCH or his
alleged superiors, were given or passed with the intent and awarenessthat they would be achieved and institutionalised. Orders at S21 could be
implicit, explicit, broad or specific, and could be received directly or
indirectly by the perpetrator.
156. The direction provided by DUCH contributed substantially to theevents which took place at S21, and much of the conduct which was
attempted or occurred can be described as criminal under the ECCC Law
and Agreement.928

530. As Deputy of S-21 from October 1975 to March 1976, the Accused exercisedauthority over the members of the S-21 interrogation unit (Section 2.3.3.3). As Chairmanof S-21 from March 1976 to its abandonment on 7 January 1979, the Accused was theundisputed head of S-21 and exercised authority over its entire staff (Section 2.3.3.4).

924

Milutinović Trial Judgement, Vol. I, para. 87.
Prosecutor v. Kamuhanda, Judgement, ICTR Appeals Chamber (ICTR-99-54A-A), 19 September
2005, para. 76.
926
Milutinović Trial Judgement, Vol. I, para. 88.
927
Prosecutor v. Blaskić, Judgement, ICTY Appeals Chamber (IT-95-14-A), 29 July 2004, paras 41-42.
928
Amended Closing Order, paras 154-156.
925

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531. The Chamber has found that the Accused issued, passed down or transmitted orders
to his S-21 staff to arrest, torture and execute detainees (Sections 2.3.3.5.3-2.3.3.5.5). The
Chamber considers that these orders were factors which substantially contributed to thecrimes later perpetrated at S-21. The Chamber further finds that the Accused intended tobring about the commission of these crimes, or at the very least was aware of thesubstantial likelihood that they would be committed as a consequence of the execution or
implementation of his orders.
2.7.8 Aiding and abetting
532. As a preliminary matter, the Chamber notes that the French version of Article 29(new) of the ECCC Law equates “aiding and abetting” to the notion of “complicité”. In
contrast, the French versions of the Statutes of both the ICTY and ICTR have equated thephrase “aiding and abetting” to “aidé et encouragé”.929 Given that Article 29 (new) of the
ECCC Law is modelled on the provision of the ad hoc international criminal tribunals
and that it derives from notions of international law, the Chamber finds that the phrase“aidé et encouragé” more clearly reflects the nature of this form of responsibility thandoes the notion of “complicité”, which may encompass broader conduct.930 The Khmer
version of Article 29 (new) of the ECCC Law further supports this interpretation.931
533. Aiding and abetting consists of practical assistance, encouragement, or moral
support which has a substantial effect on the commission of the crime by theperpetrator.932 Though often considered jointly in the jurisprudence of international
tribunals, “aiding” and “abetting” are not synonymous: “aiding” involves the provision of929

See Article 7(1) of the ICTY Statute and Article 6(1) of the ICTR Statute. French is not an official
language of the SCSL.
930
Cf., Article 83 of the 1956 Penal Code (in which aiding and abetting, instigating and ordering are,amongst others, considered as forms of complicity).
931
The literal translation of the Khmer version of the relevant portion of Article 29 of the ECCC Law
refers to those “who planned, instigated, ordered or committed a crime, or aided and abetted in the
preparation of the plan or in the commission of the crime” (emphasis added) (ECCC translation).
932
Prosecutor v. Blaskić, Judgement, ICTY Appeals Chamber (IT-95-14-A), 29 July 2004, paras 45-46,
48; Gacumbitsi Appeal Judgement, para. 140.

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assistance, while “abetting” involves “facilitating the commission of an act by being
sympathetic thereto.”933
534. No evidence of a plan or agreement between the aider and abettor and theperpetrator is required.934 An accused may not be convicted of aiding and abetting acrime that was never carried out. The perpetrator of the crime need not have been tried oreven identified.935
535. Liability for aiding and abetting a crime requires proof that the accused knew that acrime would probably be committed, that the crime was in fact committed, and that theaccused was aware that his conduct assisted the commission of that crime.936 Thisknowledge can be inferred from the circumstances.937 Further, the requirement that theaccused be aware of, though need not share, the perpetrator’s intent applies equally to
specific-intent crimes, like persecution as a crime against humanity.938
2.7.9 Findings on aiding and abetting
536. The Amended Closing Order states:
161. DUCH’s subordinates respected his authority, and that at nearly
every level of S21’s operation, he gave them practical assistance,encouragement or moral support. This substantially contributed to thecrimes described in this Closing Order. Further, DUCH appreciated his
behaviour would assist in the commission of these crimes; knew theiressential elements; and was aware of the intention of the perpetrators.939

537. In light of the Chamber’s previous findings, it is clear that the practical assistance,encouragement and moral support provided by the Accused to his staff had a substantial
933

Milutinović Trial Judgement, Vol. I, para. 89, fn. 107.
Tadić Appeal Judgement, para. 229.
935
Milutinović Trial Judgement, Vol. I, para. 92.
936
Prosecutor v. Blaskić, Judgement, ICTY Appeals Chamber (IT-95-14-A), 29 July 2004, paras 49-50;
Brima Appeal Judgement, para. 243.
937
Milutinović Trial Judgement, Vol. I, para. 94; Sesay Trial Judgement, para. 280.
938
Prosecutor v. Blagojević et al., Judgement, ICTY Appeals Chamber (IT-02-60-A), 9 May 2007, para.
127 (“The requisite mental element of aiding and abetting is knowledge that the acts performed assist thecommission of the specific crime of the principal perpetrator. In cases of specific intent crimes such aspersecutions or genocide, the aider and abettor must know of the principal perpetrator’s specific intent.”)(footnotes omitted).
939
Amended Closing Order, para. 161.
934

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effect on their perpetration of crimes at S-21 (Section 2.3.3.5). The Chamber further findsthat the Accused was aware that his conduct assisted in the commission of these crimes.
Moreover, having trained his staff to consider all detainees as enemies of the CPK(Section 2.3.3.5.2), the Accused was aware of the discriminatory intent of theperpetrators in committing these crimes.
2.7.10 Superior responsibility
538. For an accused to be held responsible for the criminal conduct of his or her
subordinates pursuant to superior responsibility, three elements must be fulfilled: (a)there must have been a superior-subordinate relationship between the accused and theperson who committed the crime; (b) the accused must have known, or had reason toknow, that the crime was about to be or had been committed; and (c) the accused musthave failed to take the necessary and reasonable measures to prevent the crime or topunish the perpetrator. Each of these elements is discussed in turn below.
539. The Chamber agrees with the international jurisprudence that has found that an
accused may not be concurrently convicted pursuant to a “direct” form of responsibility(as listed in the first paragraph of Article 29 (new) of the ECCC Law) on the one hand,and superior responsibility on the other.940 Instead, where both a form of “direct”
responsibility and superior responsibility are established in relation to the same conduct,
the Chamber will enter a conviction on the basis of the “direct” form of responsibility
only, and consider the accused’s superior position as an aggravating factor insentencing.941

940

Prosecutor v. Blaskić, Judgement, ICTY Appeals Chamber (IT-95-14-A), 29 July 2004, paras 91-92(finding that concurrent conviction for individual and superior responsibility in relation to the same countbased on the same facts constituted legal error invalidating the trial judgement); Prosecutor v. Kajelijeli,
Judgment, ICTR Appeals Chamber (ICTR-98-44A-A), 23 May 2005, para. 81 (“Kajelijeli Appeal
Judgement”); Brima Trial Judgement, para. 800.
941
Prosecutor v. Blaskić, Judgement, ICTY Appeals Chamber (IT-95-14-A), 29 July 2004, para. 91;
Kajelijeli Appeal Judgement, para. 82.

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2.7.10.1

Superior-subordinate relationship540. Formal designation as a commander or a superior is not required in order to trigger
superior responsibility: such responsibility can arise by virtue of a superior’s power,
whether in law or in fact, over those who committed the crime.942 In order to demonstrate
the existence of a superior-subordinate relationship, it must be established that theaccused exercised effective control over the subordinate.943 In other words, the accusedmust have had the material ability to prevent or punish the subordinate’s commission of
the crime.944
541. Factors that would demonstrate that an accused exercised effective control over a
subordinate include: the nature of the accused’s position, including his or her position
within the military or political structure; the procedure for appointment and the actualtasks performed;945 the accused’s capacity to issue orders and whether or not such orders
are actually executed;946 the fact that subordinates show greater discipline in the presenceof the accused;947 the authority to invoke disciplinary measures;948 and the authority torelease or transfer prisoners.949
542. Further, superior responsibility may ensue on the basis of both direct and indirect
relationships of subordination. Every person in the chain of command who exercises
effective control over subordinates is responsible for the crimes of those subordinates,
provided that the other requirements of superior responsibility are met.950942Čelebići Appeal Judgement, paras 191–192; Kajelijeli Appeal Judgement, para. 85.
See Article 29 of the ECCC Law; see also Prosecutor v. Bagilishema, Judgement, ICTR Appeals
Chamber (ICTR-95-1A-A), 3 July 2002 (“Bagilishema Appeal Judgement”), para. 61 (“The Appeals
Chamber reiterates that the test in all cases is whether the accused exercised effective control over his or
her subordinates.”); Prosecutor v. Delalić et al., Judgement, ICTY Trial Chamber (IT-96-21-T), 16
November 1998, paras 364-378 (regarding the requirement of “effective control”).
944
Bagilishema Appeal Judgement, para. 61 citing Čelebići Appeal Judgement, para. 198; Brima Appeal
Judgement, para. 257.
945
Prosecutor v. Halilović, Judgement, ICTY Appeals Chamber (IT-01-48-A), 16 October 2007, para. 66.
946
Strugar Appeal Judgement, paras 253-254.
947
Čelebići AppealJudgement, para. 206.
948
Strugar Appeal Judgement, paras 260-262.
949
Čelebići Appeal Judgement, para. 206.
950
Prosecutor v. Blaskić, Judgement, ICTY Appeals Chamber (IT-95-14-A), 29 July 2004, para. 67;
Čelebići Appeal Judgement, para. 252.
943

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2.7.10.2

Superior knew or had reason to know

543. In order to hold a superior responsible under Article 29 (new) of the ECCC Law forcrimes committed by a subordinate, the superior must know, or have reason to know, thatthe subordinate was about to commit or had committed such crimes. The knowledge ofthe superior may not be presumed but must be established by direct or circumstantial
evidence.951 The superior must have knowledge of the alleged criminal conduct of his or
her subordinates and not simply knowledge of the occurrence of the crimes
themselves.952
544. A superior will be considered to have reason to know that crimes had been or wereabout to be committed where, in the circumstances of the case, he or she possessed
information sufficiently alarming to justify further inquiry.953 This information may begeneral in nature and does not need to contain specific details on the crimes which havebeen or are about to be committed.954 The superior cannot be held liable for having failed
to seek out such information in the first place. A superior may not, however, deliberately
refrain from obtaining the relevant information when it is otherwise available to him or
her.955
2.7.10.3

Failure to prevent or punish545. An accused may be held liable pursuant to superior responsibility if he or she failed
to take necessary and reasonable measures to prevent the commission of a crime orpunish its perpetrators. Necessary measures are those appropriate for the superior todischarge his or her obligation, showing a genuine effort to prevent or punish.
Reasonable measures are those reasonably falling within the material powers of the951

Kordić Trial Judgement, para. 427; Sesay Trial Judgement, para. 309.
Prosecutor v. Orić, Judgement, ICTY Appeals Chamber (IT-03-68-A), 3 July 2008, paras 57-59.
953
Prosecutor v. Hadžihasanović et al., Judgement, ICTY Appeals Chamber (IT-01-47-A), 22 April 2008(“Hadžihasanović Appeal Judgement”), para. 28.
954Čelebići Trial Judgement, para. 393; Sesay Trial Judgement, para. 310.
955
Čelebići Appeal Judgement, para. 226; Prosecutor v. Blaskić, Judgement, ICTY Appeals Chamber (IT95-14-A), 29 July 2004, paras 62-64, 406; Sesay Trial Judgement, para. 312.
952

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superior. The determination of what constitutes necessary and reasonable measures must
be made on a case-by-case basis and is not a matter of substantive law, but of evidence.956
546. The failure to punish and the failure to prevent involve different crimes committed
at different times: the failure to punish concerns past crimes committed by subordinates,
whereas the failure to prevent concerns future crimes of subordinates. They represent two
distinct legal obligations, the failure of either one of which entails responsibility under
Article 29 (new) of the ECCC Law.957
547. The failure to prevent and the failure to punish are not only legally distinct, but arealso factually distinct in terms of the type of knowledge that is involved for each basis ofsuperior responsibility. The duty to prevent arises for a superior from the moment he or
she knows or has reason to know that a crime is about to be committed, while the duty topunish only arises after the commission of the crime.958
2.7.10.4

Findings on superior responsibility

548. The Chamber has found the Accused individually criminally responsible on thebasis of “direct” forms of responsibility as listed in Article 29 (new) of the ECCC Law
for the following offences as crimes against humanity: murder, extermination,
enslavement, imprisonment, torture, persecution on political grounds, and otherinhumane acts; as well as the following grave breaches of the Geneva Conventions of
1949: wilful killing, torture and inhumane treatment, wilfully causing great suffering or
serious injury to body or health, wilfully depriving a prisoner of war or civilian of therights of fair and regular trial, and unlawful confinement of a civilian.
549. The Chamber is satisfied that the Accused’s criminal liability for these crimes could
also be established on the basis of his superior responsibility. Indeed, the Accused
exercised effective control over the rest of the S-21 staff, knew that his subordinates werecommitting crimes, and failed to take necessary or reasonable measures to prevent theircommission or punish their perpetrators (Section 2.3.3). However, in line with
956
957
958

Prosecutor v. Halilović, Judgement, ICTY Appeals Chamber (IT-01-48-A), 16 October 2007, para. 63.
See Hadžihasanović Appeal Judgement, para. 259.
Hadžihasanović Appeal Judgement, para. 260.

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established jurisprudence, the Chamber will take into account the Accused’s superior
position only at sentencing.
2.7.11 Defences raised that may exclude criminal responsibility
550. Throughout the trial, the Accused claimed that, as Deputy and then Chairman and
Secretary of S-21, he acted pursuant to the orders of his superiors.959 The Accused further
alleged that he acted under duress in that he would have been killed had he not followed
these orders.960 The Defence argues that acting pursuant to superior orders or duress
should exclude the Accused’s criminal responsibility and result in his acquittal.
Alternatively, the Defence submits that both are mitigating factors for the purposes ofsentencing.961
2.7.11.1

Superior Orders551. Article 29(4) of the ECCC Law provides:
The fact that a Suspect acted pursuant to an order of the Government of
Democratic Kampuchea or of a superior shall not relieve the Suspect ofindividual criminal responsibility.962

552. Other international legal instruments, such as the Nuremberg Charter and the ad hoc
Tribunal Statutes, also provide that acting pursuant to superior orders does not constitutea legitimate defence to charges of crimes against humanity and war crimes.963 However,
Article 33 of the Rome Statute excludes individual criminal responsibility for war crimes
959

T., 30 April 2009 (Accused), p. 66; T., 6 April 2009 (Accused), p. 36, 74-75; T., 22 June 2009
(Accused), p. 79.
960
T., 6 April 2009 (Accused), pp. 20, 65; T., 2 September 2009 (Accused), p. 79; T., 16 September 2009
(Accused), pp. 7, 36; T., 22 June 2009 (Accused), pp. 79-81; T., 27 November 2009, p. 44.
961
T., 25 November 2009 (Defence Closing Statement), p. 112; T., 27 November 2009 (Defence Closing
statement), pp. 44-46 and 62 and T., 17 February 2009 (Defence), pp. 111-112.
962
See also Article 100 of the 1956 Penal Code, the relevant national law during the 1975 to 1979 period,
which states: “In the case of illegal orders given by a lawful authority, the judge shall determine, on a caseby-case basis, the criminal responsibility of those executing the orders.” (Unofficial translation).
963
Statute of the International Military Tribunal, Article 8: “The fact that the Defendant acted pursuant toorder of his Government or of a superior shall not free him from responsibility, but may be considered in
mitigation of punishment if the Tribunal determined that justice so requires.” Article 7(4) of the ICTY
Statute reads: “The fact that an accused person acted pursuant to an order of a Government or of a superior
shall not relieve him of criminal responsibility, but may be considered in mitigation of punishment if theInternational Tribunal determines that justice so requires.”; see also similar wording in Article 6(4) of the
ICTR Statute and Article 6(4) of the SCSL Statute.

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where the Accused did not know that the order was unlawful and the order was not
manifestly unlawful.964 In the present case, the Chamber has found that the Accused
knew that the orders to kill, torture and arbitrarily detain persons protected under the
Geneva Conventions were unlawful (Section 2.7.1.4). The Chamber also infers that the
Accused knew that the acts constituting grave breaches of the Geneva Conventions werecriminal in nature. It therefore finds that he also knew that orders of the Government of
DK to commit these offences were unlawful.
2.7.11.2

Duress553. No ECCC provision specifically addresses whether duress may exclude individual
criminal responsibility, although Article 97(2) of the 1956 Penal Code states:
Absolute necessity exists where the perpetrator of the offence, faced withan inevitable and imminent danger could only avoid it by committing theoffence and, in addition, the danger did not arise from an act within his
965
or her control, committed in order to create the danger.

554. Other international tribunals, including the ICTY Appeals Chamber, have found thatduress does not afford a complete defence to charges of crimes against humanity or war
crimes involving the killing of innocent human beings, though it is admissible inmitigation of sentence.966964Article 33(1) of the Rome Statute provides: “The fact that a crime within the jurisdiction of the Court
has been committed by a person pursuant to an order of a Government or of a superior, whether military orcivilian, shall not relieve that person of criminal responsibility unless: (a) The person was under a legal
obligation to obey orders of the Government or the superior in question; (b) The person did not know thatthe order was unlawful: and (c) The order was not manifestly unlawful. 2. For the purposes of this article,
orders to commit genocide or crimes against humanity are manifestly unlawful.”
965
Unofficial translation.
966
See Prosecutor v. Erdemovic, Judgement, ICTY Appeals Chamber (IT-96-22-A), 7 October 1997
(reversing a finding of the Trial Chamber that duress was not ruled out entirely as a complete defense,
albeit one with strict requirements (ibid., Judgement, ICTY Trial Chamber (IT-96-22-T), 29 November
1996) and remitting the matter to the Trial Chamber). In finding that duress could never amount to acomplete defence to the killing of innocent civilians, the majority evaluated the status of the victims, thenature of the offence, the status of the Accused (a soldier carrying out combat operations), and thedistinction between civil law systems (which generally allow duress to serve as a complete defence) andcommon law systems (which generally do not). The majority left open the possibility that duress could be acomplete defence in relation to less serious crimes (ICTY Appeals Chamber Judgement, ibid., Joint
Separate Opinion of Judge McDonald and Judge Vohrah, paras. 66, 70, 88). By contrast, Judge Cassese
found that duress may amount to a complete defence, including in relation to the killing of innocent
civilians (ibid., Separate and dissenting opinion of Judge Cassese, paras. 16 and 33)). In 1998, the Trial

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555. At trial the Accused described the hierarchical structure of the Party Centre, theimpossibility of disobeying the system, and the fact that even high-ranking party
members could be categorized as enemies and killed.967 Although the Accused describedseveral situations in which he felt personally fearful,968 he did not cite disobedience to anorder.969 The Chamber has elsewhere found that the Accused possessed and exercised
significant authority at S-21 and that his conduct in carrying out these functions
evidenced a high degree of efficiency and zeal.970 The Chamber has also found that the
Accused not only implemented but actively contributed to the development of CPK
policies at S-21, for instance by producing confessions that were untrue (Section
2.3.3.5.4).
556. Although saying these appointments were against his will, the Chamber finds that
the Accused’s acceptance of appointment as deputy and then chairman of S-21 reflected
his sense of duty to the CPK. His personal belief in the Party and commitment to its goals
apparently subsisted even after he left S-21 on 7 January 1979.971
557. The Chamber accepts that towards the end of the existence of S-21, the Accused
may have feared that he or his close relatives would be killed if his superiors found his
conduct unsatisfactory. Duress cannot however be invoked when the perceived threat
Chamber took up the remit and applied the Appeal Chamber's finding that duress could not constitute, as amatter of law, a complete defence in that case, although it used duress in mitigation of sentence(ibid.,Sentencing Judgement, ICTY Trial Chamber (IT-96-22-Tbis), 5 March 1998); see further Article
31(1)(d) of the Rome Statute; see also Trial of Otto Ohlendorf et al. (Einsatzgruppen case), Trials of War
Criminals, vol. IV, p. 480 and US v. Alfred Krupp, et al., US Military Tribunal at Nuremberg, 1949 (X)LRTWC, p. 149 (“[…] if, in the execution of the illegal act, the will of the accused be not thereby
overpowered but instead coincides with the will of those from whom the alleged compulsion emanates,
there is no necessity justifying the original conduct”); see also Attorney-General of Israel v Eichmann(1961) 36 ILR 5, p. 340.
967
T., 25 November 2009 (Accused), pp. 64-64, 67; T., 14 September 2009 (Raoul JENNAR), pp. 68-70,
73.
968
T., 6 April 2009 (Accused), pp. 20, 65; T., 2 September 2009 (Accused), p. 79; T., 16 September 2009
(Accused), pp. 7, 36; T., 22 June 2009 (Accused), pp. 79-81; T., 27 November 2009, p. 44.
969
See Prosecutor v. Erdemovic, ICTY Appeals Chamber (IT-96-22-T), 7 October 1997, Separate anddissenting opinion of Judge Cassese, para. 15 (suggesting that disobedience to an order is a prerequisite forestablishing duress).
970“Voices from S-21 – Terror and History in Pol Pot’s Secret Prison” (book) by David CHANDLER,
E3/427, p. 154, ERN (English) 00192847; see also T., 28 May 2009 (Craig ETCHESON), pp. 20, 28-29,
91-92; T., 6 August 2009 (David CHANDLER), pp. 50, 61-63, 69-70.
971
See Amended Closing Order, para. 166; T., 27 August 2009 (Accused), pp. 98-101; T., 2 September
2009 (Accused), pp 41-46 (describing his continuing allegiance to the Khmer Rouge (albeit withdiminishing enthusiasm) until his arrest).

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results from the implementation of a policy of terror in which he himself has willingly
and actively participated.
558. The Chamber accordingly finds that the Accused did not act under duress as a
Deputy and later Chairman of S-21. Duress as such is therefore irrelevant both in relation
to the Accused’s criminal responsibility and in mitigation of sentence. The Chamber has,
however, considered factors such as the coercive climate in DK and the Accused’shierarchical position within the CPK in its determination of sentence (Section 3.3.3).
2.7.12 Cumulative convictions
559. The Chamber has found the Accused individually criminally responsible pursuant to
Article 29 (new) of the ECCC Law for the following offences as crimes against
humanity: murder, extermination, enslavement, imprisonment, torture (including one
instance of rape), persecution on political grounds, and other inhumane acts, as well as
for the following grave breaches of the Geneva Conventions of 1949: wilful killing,
torture and inhumane treatment, wilfully causing great suffering or serious injury to bodyor health, wilfully depriving a prisoner of war or civilian of the rights of fair and regulartrial, and unlawful confinement of a civilian.
560. Where the Accused’s conduct fulfils the elements of different offences, theChamber will evaluate the impact of multiple convictions. The ad hoc tribunal
jurisprudence has acknowledged that multiple convictions serve to “describe the full
culpability of a particular accused or provide a complete picture of his criminal
conduct.”972 Since cumulative convictions create a risk of prejudice to the Accused,973 theICTY Appeals Chamber has formulated the following test in this area:
417. Multiple criminal convictions entered under different statutory
provisions but based on the same conduct are permissible only ifeach statutory provision involved has a materially distinct element
not contained in the other. An element is materially distinct fromanother if it requires proof of a fact not required by the other.
972

Kunarac Appeal Judgement, para. 169.
Kordić Appeal Judgement, Joint Dissenting Opinion of Judge Schomburg and Judge Güney on
Cumulative Convictions, para. 2.

973

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418. Where this test is not met, the Chamber must decide in relation
to which offence it will enter a conviction. This should be done on
the basis of the principle that the conviction under the more specificprovision should be upheld. Thus, if a set of facts is regulated by two
provisions, one of which contains an additional materially distinct
element, then a conviction should be entered only under thatprovision.974

561. Whether the same conduct violates two distinct statutory provisions is a question oflaw. The Čelebići test, and subsequent jurisprudence which has applied it, hasemphasized the legal elements of each crime that may be the subject of a cumulative
conviction rather than the underlying conduct of the Accused.975
2.7.12.1

Crimes against humanity and grave breaches

562. According to the case law of the ad hoc tribunals, cumulative convictions have beenentered for analogous crimes as both crimes against humanity and grave breaches of the
Geneva Conventions, in view of the distinctive character of both categories ofoffences.976 The Chamber accordingly convicts the Accused for the following specificoffences of crimes against humanity: extermination, enslavement, imprisonment, torture,
persecution and other inhumane acts cumulatively with the following grave breaches of
the Geneva Conventions of 1949: wilful killing, torture and inhumane treatment, wilfullycausing great suffering or serious injury to body or health, wilfully depriving a prisonerof war or civilian of the rights of fair and regular trial, and unlawful confinement of acivilian.
2.7.12.2

Persecution and other underlying offences as crimes against
humanity

563. The additional element of persecution when compared to all other offences ascrimes against humanity is the specific discriminatory intent required by the perpetrator(Section 2.5.3.13).
974

Čelebići Appeal Judgement, paras. 412, 413.
See e.g., Kordić Appeal Judgement, para. 387; Sesay Appeal Judgement, para. 1191.
976
See e.g., Kordić Trial Judgement (noting the different threshold requirements of both crimes andentering cumulative convictions for the crimes against humanity and grave breaches of murder and willful
killing (para. 820), inhumane acts and willfully causing great suffering (para. 821), as well as imprisonment
and unlawful confinement (para. 824)); Kordić Appeal Judgement, para. 1037.
975

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564. The jurisprudence of the ad hoc tribunals has given detailed consideration to therelationship between persecution and other component offences that may comprise acharge of persecution. While prior jurisprudence adopted another point of view,977 theICTY Appeals Chamber has recently entered cumulative convictions for both persecution
and other underlying crimes against humanity, on grounds that the offence of persecution
contains materially distinct elements not contained in other crimes against humanity.978565. Two of five members of the Appeals Chamber in the Kordić et al. Appeal
Judgement, reflecting the previously-settled jurisprudence of that Chamber, disagreed
that a conviction for persecution can be cumulated with other convictions as crimes
against humanity if both convictions are based on the same criminal conduct.979 Whilethe ingredients of persecution and underlying offences may appear distinct when
considered in the abstract, the question, according to the Čelebići test, is whether they arematerially distinct; that is, whether each offence contains elements that require proof of afact not required by the other offences.980 Where, for example, the charge of persecution
is premised on murder or inhumane acts, and such charge is proven, the Prosecution need
not prove any additional fact in order to secure a conviction for murder or inhumane acts
as well. The proof that the accused committed persecution through murder or inhumane
acts necessarily includes proof of murder or inhumane acts. These offences become
subsumed within the offence of persecution.981 The Chamber endorses this application of977

See Prosecutor v. Krstić, ICTY Appeals Chamber, Judgement, 19 April 2004, paras 231-233;
Krnojelac Appeal Judgement, para. 188 and Disposition; Vasiljević Appeal Judgement, paras 146-147 andDisposition. Subsequent ad hoc tribunals have, however, confirmed the approach adopted by the Kordić etal., Appeal Judgement (see e.g., Nahimana Appeal Judgement, paras 1024-1026).
978
Kordić Appeal Judgement, paras 1039-1043 (considering, for example, persecution to require proof
that an act or omission discriminates in fact and proof of a specific intent to discriminate. Murder, bycontrast, requires merely proof that the accused caused the death of one or more persons, regardless ofwhether the act or omission in question discriminates in fact or was specifically intended as
discriminatory).
979
Kordić Appeal Judgement, Joint Dissenting Opinion of Judge Schomburg and Judge Güney on
Cumulative Convictions, paras 1, 13 (finding the previous decisions of the Appeals Chamber in Krnojelac,
Vasiljević and Krstić to represent the correct application of the Čelebići test and considering that no cogent
reasons existed to depart from this jurisprudence).
980
Kordić Appeal Judgement, Joint Dissenting Opinion of Judge Schomburg and Judge Güney on
Cumulative Convictions, para. 5.
981
Kordić Appeal Judgement, Joint Dissenting Opinion of Judge Schomburg and Judge Güney on
Cumulative Convictions, paras 10, 12 (noting that where persecution requires the materially distinct
elements of a discriminatory act and a discriminatory intent, it is therefore more specific than murder orother inhumane acts as a crime against humanity (citations omitted)); see also ibid., para. 11 (further noting

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the Čelebići test, but concurs that there is need for a precise description of the convictedperson’s full culpability in the disposition, and hence express identification of theunderlying conduct upon which the conviction for persecution has been based.982
2.7.12.3

Murder and Extermination

566. The Accused’s responsibility in relation to the crimes against humanity of murderand extermination is based on the same underlying conduct (Section 2.4.1). Murder andextermination as crimes against humanity share a number of elements. The ingredientthat distinguishes these two offences is that the crime of extermination requires anelement of mass killing (Section 2.5.3.1). Murder as a crime against humanity is therefore
subsidiary to extermination as a crime against humanity.983
2.7.12.4

Conclusions on the criminal responsibility of the Accused567. The Chamber has found the Accused individually criminally responsible pursuant to
Article 29 (new) of the ECCC Law for the following offences as crimes against
humanity: murder, extermination, enslavement, imprisonment, torture (including one
instance of rape), persecution on political grounds, and other inhumane acts; as well as
for the following grave breaches of the Geneva Conventions of 1949: wilful killing,
torture and inhumane treatment, wilfully causing great suffering or serious injury to bodyor health, wilfully depriving a prisoner of war or civilian of the rights of fair and regulartrial, and unlawful confinement of a civilian.

that convictions for imprisonment and persecution are impermissibly cumulative. Where persecution takes
the form of imprisonment, the former subsumes the latter (citations omitted)).
982
Kordić Appeal Judgement, Joint Dissenting Opinion of Judge Schomburg and Judge Güney on
Cumulative Convictions, para. 2; see also ibid., para. 6 (describing the crime of persecution as an ‘empty
hull’; a residual category designed to cover all possible underlying offences of persecution. It is therefore
necessary to describe what breaches of which fundamental rights are encapsulated by this charge in order toavoid impermissible vagueness).
983
The Chamber notes that the Amended Closing Order has specified murder as a component offence of
persecution but makes no reference to extermination (Amended Closing Order, para. 141 (alleging that the
Accused committed persecution by subjecting detainees to “arbitrary and unlawful detention, torture,enslavement, murder, and other inhumane acts.”)) In view of its finding that all component crimes against
humanity were in this case subsumed within the umbrella offence of persecution, the Chamber considers
this to be of little consequence.

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568. In light of the jurisprudence regarding cumulative convictions, the Chamber
therefore convicts the Accused of persecution on political grounds as a crime against
humanity (subsuming the crimes against humanity of extermination (encompassing
murder), enslavement, imprisonment, torture (including one instance of rape), and otherinhumane acts). It further enters convictions for the following grave breaches of the
Geneva Conventions of 1949: wilful killing, torture and inhumane treatment, wilfullycausing great suffering or serious injury to body or health, wilfully depriving a prisonerof war or civilian of the rights of fair and regular trial, and unlawful confinement of acivilian.

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3
3.1

SENTENCING

Submissions

569. In view of the gravity of the crimes committed by the Accused and numerous
aggravating factors, the Co-Prosecutors request a sentence of life imprisonment. They
add, however, that a conversion of this life sentence to 45 years of imprisonment would
provide an adequate remedy for the Accused’s unlawful detention by the military
authorities of the Kingdom of Cambodia. A further reduction of five years would also beappropriate in light of applicable mitigating factors. Accordingly, the Co-Prosecutors
request that the Chamber impose a sentence of 40 years of imprisonment.984
570. During the closing statements, the Accused acknowledged his “legal and moral”
responsibility for the crimes committed at S-21,985 but nevertheless requested that the
Chamber release him, and sought an acquittal on all crimes charged against him.986 The
Accused’s international defence counsel, who appeared to distance himself from thosecomments, noted that the Chamber should instead consider a number of mitigating
factors in determining a sentence.987 In addition, the Accused’s Final Written
Submissions requested that the Chamber deduct from any sentence imposed the timespent by him in provisional detention since 10 May 1999, as well as an additional period
as a remedy for the violation of his right to be tried within a reasonable time.988
3.2

Applicable law
3.2.1 ECCC provisions and sentencing framework

571. Rule 98(5) of the Internal Rules provides that “[i]f the accused is found guilty, theChamber shall sentence him or her in accordance with the Agreement, the ECCC Law

984“Co-Prosecutors’ Final Trial Submission”, E159/9, 11 November 2009, paras 357-486.
T., 25 November 2009 (Accused), p. 69.
986
T., 25 November 2009 (Defence), pp. 80-113; T., 27 November 2009 (Accused), pp. 59-60; T., 27
November 2009 (Defence), p. 62.
987
T., 26 November 2009 (Defence), pp. 75-82; T., 27 November 2009 (Defence), p. 52.
988“Final Defence Written Submissions”, E159/8, 11 November 2009, p. 15.
985

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and these [Internal Rules].”989 No distinction is drawn in any of these ECCC documents
between national or international crimes as regards sentencing.
572. Article 10 of the ECCC Agreement provides that “[t]he maximum penalty forconviction for crimes falling within the jurisdiction of the Extraordinary Chambers shallbe life imprisonment.” Article 39 (new) of the ECCC Law supplements this provision as
follows:
Those who committed any crime as provided in Articles 3 new, 4, 5, 6, 7
and 8 [of the ECCC Law] shall be sentenced to a prison term from five
years to life imprisonment.
In addition to imprisonment, the [Trial Chamber] may order theconfiscation of personal property, money, and real property acquired
unlawfully or by criminal conduct.
The confiscated property shall be returned to the State.990

573. The ECCC Law and Agreement also provide that the Chamber shall exercise its
jurisdiction in accordance with the provisions of Articles 14 and 15 of the ICCPR.991
Article 15(1) of the ICCPR states that a heavier penalty than the one that was applicableat the time the criminal offence was committed cannot be imposed and that “[i]f,subsequent to the commission of the offence, provision is made by law for the impositionof the lighter penalty, the offender shall benefit thereby”.992 A review of relevantinternational sentencing guidelines for crimes against humanity and grave breaches of the
Geneva Conventions of 1949 indicates that the penalties applicable before the ECCC forthese crimes do not contravene Article 15(1) of the ICCPR.993

989

Unlike the procedure applicable before other international criminal tribunals, the ECCC legal
framework envisages neither the possibility of a plea of guilty nor a specifically-designated sentencing
hearing. Under Cambodian law, questions relating to guilt and sentencing are dealt with at the same hearing
and are determined in a single decision.
990
See also Article 38 of the ECCC Law.
991
See Article 33 new of the ECCC Law and Article 12(2) of the ECCC Agreement.
992
See also Article 6(2) of the 1956 Penal Code and Article 10(1) of the 2009 Penal Code (providing forthe immediate application of provisions which prescribe lighter penalties).
993
See e.g., Nuremberg Charter, Article 27 (which provided for the possibility of “impos[ing] upon a
Defendant, on conviction, death or such other punishment as shall be determined by [the Tribunal] to bejust”) and Article 28 (allowing the Tribunal to deprive the convicted person of “any stolen property”); seealso the penalties provided for in Article 77 of the ICC Statute, Article 24 of the ICTY Statute, Article 23of the ICTR Statute and Article 19 of the SCSL Statute.

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574. Nor do the relevant sentencing provisions within Cambodian law appear tocontravene Article 15(1) of the ICCPR. The 1956 Penal Code, the applicable law at thetime these offences were committed, suggests that the death penalty may have been
applicable in relation to many offences akin to crimes against humanity and grave
breaches of the Geneva Conventions.994 In relation to subsequent Cambodian provisions,the Chamber is unable to undertake a comparison between the sentencing regime
contained in the 2009 Penal Code and that applicable before the ECCC, as the former is
not yet fully in force.995 Article 33 (new) of the ECCC Law, which implements theAgreement, obligates the Chamber to exercise its jurisdiction in conformity with Articles
14 and 15 of the ICCPR. The Agreement creates a sui generis sentencing regime. It istherefore doubtful whether, on the basis of Article 33 (new), the Chamber could follow asubsequent national legislative provision in preference to provisions of the Agreement.
Such an interpretation could mean that future acts of the national legislature concerningsentence might frustrate the Agreement.
575. The ECCC Agreement, the ECCC Law and the Internal Rules are otherwise silent as
regards the principles and factors to be considered at sentencing. In particular, they do notindicate whether sentencing before the ECCC is governed by international or Cambodian
legal rules, or some combination of each.996
576. International tribunals have developed sentencing guidelines in relation to the sameor similar types of crimes to those punishable before the ECCC. There is, however, no
uniform approach to sentencing before these tribunals. Further, the sentencing regime
applicable before the ICTY, ICTR and SCSL diverges from that applicable before the
ICC. As a result, there is no single international sentencing regime directly applicablebefore the ECCC.
994

See Article 21, 1956 Penal Code (imposing the death penalty in relation to crimes of the third degree,which include torture (Article 500, 1956 Penal Code) and more serious categories of homicide (see e.g.
Article 506, 1956 Penal Code)).
995
Only one portion (Part I) of the 2009 Penal Code is currently in force. The remainder of the 2009 Penal
Code has yet to be promulgated and is accordingly not in force. It envisages, for crimes analogous to these,a mandatory term of life imprisonment.
996
Cf., Article 24 of the ICTY Statute (indicating that“[i]n determining the terms of imprisonment, theTrial Chambers shall have recourse to the general practice regarding prison sentences in the courts of theformer Yugoslavia.”)

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577. The Chamber considers that the international nature of the crimes for which the
Accused has been convicted, and the uncertainties and complexities evident in theevolution of Cambodian criminal law from the 1956 Penal Code onwards,997 rules out thedirect application of Cambodian sentencing provisions.
578. The Chamber consequently considers that it must exercise its own discretion in
determining the sentence it considers justified. In so doing, the Chamber will seek
guidance from a number of relevant international and Cambodian sentencing principles
and factors.998
3.2.2 Relevant sentencing principles and factors
579. The ECCC, like other internationalised tribunals, is entrusted with reducing crimesof considerable enormity and scope into individualised sentences. In doing so, it alsoseeks to reassure the surviving victims, their families, the witnesses and the generalpublic that the law is effectively implemented and enforced. Additionally, the process ofsentencing is intended to convey the message that globally-accepted laws and rules haveto be obeyed by all, irrespective of status or rank.999
580. While an obvious function of a sentence is to punish, its goal is not revenge.1000 The
sentence must be proportionate and individualised such that it reflects the culpability of
the accused based on an objective, reasoned and measured analysis both of his or her
conduct and its consequential harm.1001

997

The Parties were provided with an opportunity to make submissions following the promulgation of the2009 Penal Code of Cambodia but none chose to do so; see “Order Relevant to the 2009 Penal Code ofCambodia”, E180/1, 4 February 2010.
998
Judge LAVERGNE departs from the majority in relation solely to the legal approach to sentencing(see Separate and Dissenting Opinion of Judge Jean-Marc Lavergne on Sentence, E188.1).
999
Prosecutor v. Nikolić, Sentencing Judgement, ICTY Trial Chamber ( IT-94-2-S), 18 December 2003,
para. 139; Prosecutor v. Brima et al., Sentencing Judgement, SCSL Trial Chamber, (SCSL-04-16-T), 19
July 2007 (“Brima Sentencing Judgement”), para 16.
1000
See e.g., Aleksovski Appeal Judgement, para. 185.
1001
Prosecutor v. Sesay et al., Sentencing Judgement, SCSL Trial Chamber, (SCSL-04-15-T), 8 April
2008, para. 16; Furundzija Appeal Judgement, para. 249.

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581. The principles of equality before the law, proportionality and individualisation ofpenalties are amongst the international principles that have been incorporated in
Cambodian law.1002
582. International jurisprudence has established that the gravity of the crime committed
is the “litmus test for the appropriate sentence”,1003 and requires “consideration of theparticular circumstances of the case, as well as the form and degree of the participation of
the [a]ccused in the crime.”1004 Rule 145(1)(c) of the ICC’s Rules of Procedure andEvidence similarly emphasises:
the extent of the damage caused, in particular the harm caused to thevictims and their families, the nature of the unlawful behaviour and themeans employed to execute the crime; the degree of participation of theconvicted person; the degree of intent; the circumstances of manner, timeand location; and the age, education, social and economic condition of
the convicted person.1005

583. Moreover, the Chamber will consider all relevant aggravating and mitigating factors
in determining a sentence. Aggravating factors should be proved by the Co-Prosecutors
to the same standard as that required for a conviction and only circumstances directly
related to the commission of the offence charged, and for which the accused has been
convicted, will be considered to be aggravating. Hence, when a particular factor is anelement of the underlying offence, it cannot be taken into account as an aggravating
factor.1006 Further, the same fact cannot be used both to demonstrate the gravity of thecrime and as an aggravating factor.1007 Rule 145(2)(b) of the ICC’s Rules of Procedureand Evidence provides the following useful guidelines as regards aggravating factors,
which the Chamber adopts, where relevant, to the sentencing of Kaing Guek Eav:
1002

See, e.g., Article 31(2) of the 1993 Constitution of the Kingdom of Cambodia; Article 96 of the 2009
Penal Code.
1003
See Aleksovski Appeal Judgement, para. 182.
1004
See Stakić Appeal Judgement, para. 380.
1005
ICC RPE, Rule 145(1)(c). Similarly, Article 96 of the 2009 Penal Code of Cambodia provides that in
imposing a penalty, account must be taken of the seriousness and circumstances of the offence and thecharacter of the accused.
1006
Prosecutor v. Sesay et al., Sentencing Judgement, SCSL Trial Chamber (SCSL-04-15-T), 8 April
2009, para. 24.
1007
Prosecutor v. Deronjić, Judgement on Sentencing Appeal, ICTY Appeals Chamber (IT-02-61-A), 20
July 2005, paras 106-107; Prosecutor v. Sesay et al., Sentencing Judgement, SCSL Trial Chamber, (SCSL04-15-T), 8 April 2008, para. 16.

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E188(i) [a]ny relevant prior criminal convictions for crimes under thejurisdiction of the [ICC] or of a similar nature; (ii) Abuse of power orofficial capacity; (iii) Commission of the crime where the victim isparticularly defenceless; (iv) Commission of the crime with particular
cruelty or where there were multiple victims; (v) Commission of thecrime for any motive involving discrimination on any of the grounds
referred to in article 21, paragraph 3 [i.e., gender, age, race, colour,
language, religion or belief, political or other opinion, national, ethnic orsocial origin, wealth, birth or other status]; (vi) Other circumstances
which, although not enumerated above, by virtue of their nature aresimilar to those mentioned.1008

584. The jurisprudence of other international tribunals has established that the burden of
proof on an accused with regard to mitigating factors is lower than it is on the prosecution
for aggravating factors.1009 Unlike aggravating factors, mitigating factors may be taken
into account regardless of whether they are directly related to the alleged offence.1010
Rule 145(2)(a) of the ICC’s Rules of Procedure and Evidence identifies the following
mitigating factors, which the Chamber also adopts:(i) The circumstances falling short of constituting grounds for exclusionof criminal responsibility, such as substantially diminished mental
capacity or duress;(ii) The convicted person’s conduct after the act, including any efforts by
the person to compensate the victims and any cooperation with the
Court.1011

585. Mitigating factors also play a role in sentencing under Cambodian law.1012
3.2.3 The effect of multiple convictions upon sentence
586. There are no provisions in the ECCC Agreement, the ECCC Law or the Internal
Rules indicating whether the Chamber may impose a single sentence following
conviction for multiple offences, where each conviction is based on distinct criminal
conduct.

1008

ICC RPE, Rule 145(2)(b).
Blaškić Appeal Judgement, para. 697.
1010
Prosecutor v. Sesay et al., Sentencing Judgement, SCSL Trial Chamber (SCSL-04-15-T), 8 April
2009, para. 28.
1011
ICC RPE, Rule 145(2)(a).
1012
See Article 93 of the 2009 Penal Code.
1009

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587. The practice at the Nuremberg and Tokyo Tribunals was to impose a single global
sentence, even upon conviction for several offences. Before the ICTY, ICTR and SCSL,
the matter has been left to the discretion of individual Trial Chambers, although theimposition of a single sentence will usually be appropriate in cases where the offences
may be considered to belong to a single criminal transaction.1013
588. Article 78(3) of the Rome Statute instead provides that[w]hen a person has been convicted of more than one crime, the Court
shall pronounce a sentence for each crime and a joint sentence specifying
the total period of imprisonment. This period shall be no less than thehighest individual sentence pronounced and shall not exceed 30 years
imprisonment or a sentence of life imprisonment […].1014

589. The Chamber notes that while Cambodian practice has also varied on the matter, the2009 Penal Code states:[i]f, in the course of a single prosecution, the accused is found guilty ofseveral concurrent offences, each of the penalties incurred may be
imposed. However, if several penalties of a similar nature are incurred,
only one such penalty not exceeding the highest maximum penalty
allowed by law may be imposed.1015

590. The Chamber therefore considers that it may impose a single sentence that reflects
the totality of the criminal conduct where an accused is convicted of multiple offences.
3.2.4 Applicable sentence where the maximum sentence of life imprisonment is
not imposed
591. The ECCC legal framework does not indicate any maximum sentence in instanceswhere life imprisonment is not imposed. The ICTY, the ICTR and the SCSL consider thematter to be wholly within the discretion of the judges, who have considerable (though

1013

Prosecutor v. Ntakirutimana, Judgement and Sentence, ICTR Trial Chamber (ICTR-96-10 & 96-17T), 21 February 2003, para. 917; see also Kambanda v. Prosecutor, Judgement, ICTR Appeals Chamber(ICTR 97-23-A), 19 October 2000, paras 109-10; Čelebići Appeal Judgement; Brima Sentencing
Judgement, para 12.
1014
Rome Statute, Art. 78(3).
1015Article 137 of the 2009 Penal Code.

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not unfettered) discretion to tailor the length of the sentence to best reflect the totality of
the accused’s individual culpability.
592. By contrast, Article 77(1) of the Rome Statute provides:[…] the Court may impose one of the following penalties on a person
convicted of a crime referred to in article 5 of this Statute:(a) Imprisonment for a specified number of years, which may not exceed
a maximum of 30 years; or(b) A term of life imprisonment when justified by the extreme gravity of
the crime and the individual circumstances of the convicted person.1016

593. Accordingly, the ICC envisages no intermediate term of imprisonment between 30
years imprisonment and life.
594. Similarly, Article 95 of the 2009 Penal Code does not provide for any intermediate
penalty between 30 years imprisonment and a life sentence.1017
595. By a majority (Judge LAVERGNE dissenting), the Chamber after considering thesentencing range of five years to life imprisonment provided in the ECCC Law, andnoting that there are no binding international guidelines in relation to sentencing, decides
in applying ECCC Law that it has the discretion to impose a term of imprisonment otherthan a life sentence.
3.3

Findings
3.3.1 Gravity of the crimes

596. The Co-Prosecutors contend that in evaluating the gravity of the crimes, theChamber should consider the role of the Accused in their commission, their impact on the1016

Rome Statute, Art. 77(1).
Article 95 of the 2009 Penal Code (“[i]f the penalty incurred for an offence is life imprisonment, thejudge granting the benefit of mitigating circumstances may impose a sentence of between fifteen and thirty
years imprisonment”); see also Articles 15 and 128(2) of the 1956 Penal Code.

1017

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victims and their families, and the Accused’s individual circumstances.1018 The Chamberagrees that these factors are relevant to determining the gravity of the crimes.
597. The Chamber has found the Accused criminally responsible for crimes of aparticularly shocking and heinous character. As Deputy and then Chairman of S-21, theAccused managed and refined a system over the course of more than three years that
resulted in the execution of no fewer than 12,272 victims, the majority of whom werealso systematically tortured. Victims who were not executed died as a result of theconditions of detention, which led to widespread disease, malnourishment and physicaland psychological pain, as well as extreme fear. The Accused worked tirelessly to ensurethat S-21 ran as efficiently as possible and did so out of unquestioning loyalty to his
superiors and CPK ideology, without regard to the humanity of the detainees he oversaw.
Under his tutelage, S-21 became a highly efficient instrument of persecution infurtherance of a politically-motivated policy of discrimination.
598. Only a very small number of those detained at S-21 survived. S-21 survivors who
appeared before the Chamber testified to the lasting physical and psychological impact of
their ordeal.1019 The relatives of S-21 detainees also testified to the devastatingconsequences of the Accused’s crimes on these detainees’ families.1020
599. Further, the Accused was an intelligent and educated man serving as Deputy andthen Chairman and Secretary of S-21, and hence fully understood the nature of his acts atthe time.
600. In light of the foregoing, the Chamber considers that the Accused’s crimes are
extremely grave.

1018“Co-Prosecutors’ Final Trial Submission”, E159/9, 11 November 2009, paras 368-386.
See e.g. Sections 2.4.4.1.2, 2.4.5.1, 2.4.5.2 and 2.4.5.3.
1020
See e.g., T., 17 August 2009 (Robert HAMILL), pp. 92-101; T., 18 August 2009 (HAV Sophea), pp.
50-53; T., 18 August 2009 (NETH Phally), p. 106; T., 18 August 2009 (Antonya TIOULONG), pp. 15-17;
T., 17 August 2009 (Martine LEFEUVRE), pp. 22-23, 30, 38-41; T., 20 August 2009 (OU Savrith), pp. 6066.
1019

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3.3.2 Aggravating factors
601. The Co-Prosecutors contend that the Chamber should consider the following
aggravating factors in rendering a sentence: the Accused’s abuse of power or official
capacity, the cruelty of the crimes committed, the defencelessness of the victims, and thediscriminatory intent with which the crimes were committed.1021 The Chamber agrees
that these are relevant aggravating factors that may be considered in its determination of asentence.
602. As Deputy and then Chairman of S-21, the Chamber has found that the Accused
exercised his authority by indoctrinating, training and supervising staff in theircommission of crimes against the S-21 detainees. Moreover, many of the S-21 staff
members were very young and were corrupted by the requirement to treat the detainees
with great cruelty. Although the Chamber has convicted the Accused solely on the basisof direct form[s] of responsibility for most crimes, the Accused’s superior position
constitutes an aggravating factor in relation to these crimes.1022
603. Many of the crimes committed at S-21 were also carried out in a particularly cruelmanner. Detainees were subject to a host of brutal torture techniques and were, in someinstances, literally beaten to death. Further, the Chamber considers that the sheer numberof victims of these crimes, no fewer than 12,273, serves as an additional aggravating
factor.
604. S-21 detainees, who included the children, spouses and family members of otherdetainees, were clearly defenceless and vulnerable. Throughout their detention, every
facet of these detainees’ lives was under the control of their captors, including the dateand manner of their execution.
605. With the exception of persecution as a crime against humanity (for which a
discriminatory intent is a legal ingredient of the offence), a discriminatory intent, where
proved, may be considered as an aggravating factor in sentencing. Such intent may be
1021
1022

“Co-Prosecutors’ Final Trial Submission”, E159/9, 11 November 2009, paras 388-408.
See Section 2.7.10.4..

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inferred from the circumstances of the crime where the accused knowingly participated ina system that discriminated on political grounds.1023 The Chamber has found by majoritythat the Accused carried out his crimes with a specific discriminatory intent based on thevictims’ perceived political opposition and status as enemies of the CPK (Section
2.5.3.14.4). In finding the Accused guilty of the crime of persecution, the Chamber has
considered that the crime of persecution encompasses all other crimes against humanitywith which the Accused was charged (Section 2.5.3.14). It follows that in determining theapplicable sentence, discriminatory intent, as a legal ingredient of the crime ofpersecution, can be considered as an aggravating circumstance neither in relation to thecommission of the offence of persecution nor in relation to the commission of the crimes
it encompasses. It is, however, an aggravating factor in relation to all other crimes forwhich the Accused is convicted, where a discriminatory intent is not a legal ingredient of
those offences.
3.3.3 Mitigating factors
606. During his closing statement, the international defence counsel argued that the
Chamber should consider the following mitigating circumstances: the fact that the
Accused acted pursuant to superior orders and under duress, his cooperation with the
ECCC, his remorse for the crimes committed, and his propensity for rehabilitation.1024 In
their Final Written Submissions, the Co-Prosecutors disputed that superior orders or
duress were mitigating factors in the present case but agreed that allowances should bemade for the Accused’s general cooperation, limited acceptance of responsibility,
remorse and the potential impact of these factors on national reconciliation.1025 During
their closing statements, the Co-Prosecutors amended their submissions to the extent thatas the Accused was now arguing for an acquittal, no mitigating factors should beconsidered.1026

1023

Prosecutor v. Simić et al., Judgement, ICTY Trial Chamber (IT-95-9-T), 17 October 2003 (“Simić etal. Trial Judgement”), para. 51; see also Blaškić Appeal Judgement, para. 164.
1024
T., 26 November 2009 (Defence), pp. 75-80.
1025
See “Co-Prosecutors’ Final Trial Submission”, E159/9, 11 November 2009, paras 409-452.
1026
T., 27 November 2009 (Prosecution), p. 4.

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607. The Statutes of the ICTY, ICTR and SCSL specifically permit superior orders to beconsidered in mitigation of punishment.1027 A subordinate who establishes the existenceof superior orders “may be subject to a less severe sentence only in cases where the orderof the superior effectively reduces the degree of his guilt. If the order had no influence on
the unlawful behaviour because the accused was already prepared to carry it out, no such
mitigating circumstances can be said to exist.”1028 In view of the extended period of timeover which these crimes were committed, the large number of victims and the Accused’s
dedication to refining the operations of S-21, the Chamber considers that the Accused has
failed to establish that superior orders should be considered as a mitigating factor in thecircumstances of this case (Section 2.7.11.1).
608. Though often pleaded in conjunction with superior orders, duress may also serve as
an independent mitigating factor.1029 Similarly, however, the Chamber finds that the
Accused has failed to establish that duress should be considered as a mitigating factor in
the circumstances of this case (Section 2.7.11.2). Nonetheless, the Chamber places
limited weight on the coercive climate in DK and his subordinate position within theCPK.
609. Notwithstanding his belated request for acquittal, the Chamber considers that the
Accused’s cooperation with the ECCC may serve as a mitigating factor.1030 The Accuseddemonstrated a willingness to cooperate with the ECCC throughout the investigation andthe trial proceedings. He provided substantial information regarding his role in thefunctioning of S-21 and of the crimes committed therein. The Accused’s cooperation
with the ECCC undoubtedly facilitated the proceedings before the Chamber. Further, the1027

See Article 7(4) of the ICTY Statute, Articles 6(4) of the ICTR and SCSL Statutes.
Prosecutor v. Erdemović, Sentencing Judgement, ICTY Trial Chamber (IT-96-22-T), 29 November
1996, para. 53.
1029
See e.g. Prosecutor v. Martić, Judgement, ICTY Trial Chamber (IT-95-11-T), 12 June 2007, para. 501;
see also Rule 145(2)(a)(i) of the ICC RPE.
1030
See Rule 145(2)(a)(ii) of the ICC RPE; see also Rules 101(B)(ii) of the ICTY, ICTR and SCSL RPE.
1028

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Chamber considers that his cooperation assisted in the pursuit of national reconciliation,
one of the goals of the ECCC.1031
610. Expressions of remorse have been held to be a mitigating factor in sentencing before
the international tribunals.1032 The Accused repeatedly made public apologies andexpressed remorse for his crimes when given the opportunity. The Chamber finds,
however, that the mitigating impact of his remorse is undermined by his failure to offer afull and unequivocal admission of his responsibility. In particular, the Accused’s request
during the closing statements for acquittal, despite earlier apparent admissions ofresponsibility, diminishes the extent to which his remorse would otherwise mitigate his
sentence.
611. The propensity for rehabilitation of an accused has also been taken into account at
sentencing.1033 The ICTY Appeals Chamber has counselled, however, that rehabilitation
is not a factor “which should be given undue weight.”1034 Experts Françoise SIRONIGUILBAUD and KA Sunbaunat, who were tasked with providing a psychologicalassessment of the Accused, stated that they believed that the Accused could be
rehabilitated and reintegrated into society based on his past experiences and his present
condition.1035 The Chamber concurs with this opinion. The Chamber has thus accorded
limited consideration to the Accused’s propensity for rehabilitation in its determination ofsentence.
3.3.4 Psychiatric and psychological assessment of the Accused612. An expert report evaluating the Accused’s personal and psychologicalcharacteristics concluded that he presented no indication of mental or psychological
1031

See Preamble of the ECCC Agreement (citing the importance of national reconciliation); see also T.,
14 September 2009 (Richard GOLDSTONE), pp. 25-26, and T., 15 September 2009 (Stéphane HESSEL),
pp. 49-75 (regarding national reconciliation).
1032
Blaškić Appeal Judgement, para. 705.
1033
Furundzija Trial Judgement, para. 291; Kayishema et al. Trial Judgement, para. 26.
1034
Čelebići Appeal Judgement, para. 806.
1035
See “Psychological Assessment Report of Experts Françoise Sironi-Guilbaud and Ka Sunbaunat”,
E3/509, pp. 66-67, ERN (English) 00211147-00211148; T., 31 August 2009 (Françoise SIRONIGUILBAUD and KA Sunbaunat), pp. 35, 101; T., 1 September 2009 (Françoise SIRONI-GUILBAUD and
KA Sunbaunat), p. 23.

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disorder.1036 In its detailed discussion of the Accused’s personality, the experts drew on
their clinical experience and scientific research, as well as on cultural, religious andsocial factors relevant to the Accused, considered by them to be vital for a comprehensive
assessment of him.
613. They described him as a “dutiful person, readily influenced by [and] responding
well to strong leadership,” with a “need for affiliation, and for recognition andacknowledgement by his superiors.”1037 They further noted the Accused’s experiences ofsuccessive and major assimilation of different cultural systems, concluding in a radical
and abrupt affiliation with communism, which he described “as a single, tangible [and]complete social order.”1038 Marxist ideology satisfied his need for certainty and was
subsequently replaced with an equally strong commitment to Christianity, described as a“pragmatic and safe choice.”1039 In identifying with Marxism, the Accused showed zeal
and “extreme allegiance”1040; surpassing his superiors’ expectations in order to suppress
his increasing doubts regarding Angkar’s plans for “smashing” enemies, and his own
fears of imminent death.1041
614. The experts described the Accused as lacking in empathy, which they attributed inpart to the “fabrication” or conditioning process developed by the Khmer Rouge toeliminate emotions and to enhance self-control.1042 They also noted that the Accused wasable to construct powerful defence mechanisms insulating him from emotional reactions
1036“Psychological Assessment Report of Experts Françoise Sironi-Guilbaud and Ka Sunbaunat”, E3/509.
This report was prepared on the request of the Co-Investigating Judges and supplemented by the testimonyof both experts on 31 August 2009 (T., 31 August 2009) and further assessments of the Accused during
trial. The Accused cooperated fully during these assessments (ibid., p. 16).
1037
T., 31 August 2009 (KA Sunbaunat and Françoise SIRONI-GUILBAUD), p. 24.
1038
T., 31 August 2009 (KA Sunbaunat and Françoise SIRONI-GUILBAUD), p. 24.
1039
T., 31 August 2009 (KA Sunbaunat and Françoise SIRONI-GUILBAUD), p. 26.
1040
T., 15 September 2009 (Accused), pp. 40, 42 (recounting the influence of his commitment to the
Revoluion on his view of his own family, and noting that in consequence, he had to consider his parents as“individual[s] or a family which belonged to the Party” and his children as “children of Angkar” who “wereraised to serve the Revolution.”)1041
T., 31 August 2009 (KA Sunbaunat and Françoise SIRONI-GUILBAUD), p. 25 (noting that
dehumanizing the victims also required dehumanizing the executioners by divesting them of theirindividual or personal emotions, and replacing them with political emotions, which Angkar could exploit
and control).
1042
T., 31 August 2009 (KA Sunbaunat and Françoise SIRONI-GUILBAUD), pp. 32, 46; see also
“Psychological Assessment Report of Experts Françoise Sironi-Guilbaud and Ka Sunbaunat”, E3/509, pp. 27,
36, 49 ERN (English) 00211108, 00211117, 00211130.

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and inner conflicts created by his external reality: mechanisms which they described as
ultimately enabling him to nurture his own family whilst overseeing the deaths ofchildren at S-21.1043
615. The Accused was further depicted as highly intelligent, with an excellent memory,
as well as meticulous, rigid, detail-oriented and obsessional: features that were also
apparent to the Chamber during trial. The experts also perceived, and appeared to assess
positively, the Accused’s greater capacity for self-reflection regarding his life and actions
as the investigation and trial progressed.1044
616. The Chamber accepts the conclusions reached by the experts and finds that the
Accused has no psychological or psychiatric impairment relevant to his criminal
responsibility. It accepts their assessment of his capacity for rehabilitation andreintegration into society.1045 It concurs with their evaluation of him as an intelligent,well-educated and methodical individual, who appeared anxious to please the Chamber,
as well as to appease the victims of his acts. Notwithstanding his last-minute request for
acquittal, the Chamber finds the Accused to be fully aware of his responsibility for thesuffering and death of thousands of innocent people at S-21, and of the extreme gravity ofhis participation and leadership at S-21.
3.3.5 Character witnesses
617. At trial, a number of witnesses testified regarding their knowledge of the characterof the Accused and his conduct before and after the period of the crimes with which he ischarged.
618. According to Witness SOU Sath, who was a classmate of the Accused at Siem Reap
High School during his 1959-1961 school years, the Accused was a humble, kind, loyal
1043“Psychological Assessment Report of Experts Françoise Sironi-Guilbaud and Ka Sunbaunat”, E3/509,
pp. 35-36, ERN (English) 00211116-0021117.
1044
T., 31 August 2009 (KA Sunbaunat and Françoise SIRONI-GUILBAUD), p. 16 (noting the Accused’s
assessment of his choices as having been correct at the time, but noting an “endeavour to distance himself fromhis past actions”).
1045
T., 31 August 2009 (KA Sunbaunat and Françoise SIRONI-GUILBAUD), p. 35 (noting also his ability toadapt to changing life experiences).

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and generous boy, as well as being a good student who was respectful towards his
teachers, eager to share his knowledge and to help others. The Witness also testified that
the Accused showed no particular interest in politics at the time.1046
619. In 1965, after graduating from the National Teachers’ Institute, the Accused wasposted to teach mathematics at Skoun Junior High School. Two of the students he taught
from 1965 to 1968, TEP Sem and TEP Sok, described him as a remarkable teacher who
was meticulous, sincere, dedicated and always willing to help the less fortunate, as wellas well-liked and respected by his students. He gave free individual lessons to
disadvantaged students and school supplies to the needy.1047
620. Witnesses CHOU Vin, HUN Smirn and PENG Poan – who met the Accused while
he taught in Phkoâm, and later in Svay Chek in the 1990s, when the Accused went by thename HANG Pin – testified that they remembered him as someone they liked; adedicated and competent teacher, who worked hard and selflessly, and who was gentle,
humble and solitary. They all testified that after his arrest, they were surprised to learn
about his activities as head of S-21.1048
621. The Accused said that his conversion to the Protestant faith was a third phase of
his life. The first was the training period, including his career as a teacher and wascharacterized by his “love for knowledge”; the second was his involvement in politics(“love for mankind”) and, last, his Christian faith and the “love of God”.1049 Pastor
Christopher LAPEL testified as to the significance and sincerity of the Accused’s
religious faith. When he first met the Accused in Battambang in December 1995, theAccused went by the name HANG Pin. The Accused was baptised on 6 January 1996 andafter a two-week course, returned to his home area and served as a lay pastor of acommunity comprising 14 families. According to Pastor LAPEL, the Accused convertedof his own free will, testifying that the Accused was “a man with a serving heart”, who
1046

T. 1 September 2009 (SOU Sath), pp. 34-47.
T. 1 September 2009 (TEP Sem), pp. 50-60, 62-65; T. 1 September 2009 (TEP Sok), pp. 67-84.
1048
T. 1 September 2009 (CHOU Vin), pp. 86-108, 110-111; T. 2 September 2009 (HUN Smirn), p. 5-19;
T. 2 September 2009 (PENG Poan), pp. 20-38.
1049“Psychological Assessment Report of Experts Françoise Sironi-Guilbaud and Ka Sunbaunat,” E3/509,
pp. 41-42, ERN (English) 00211122-00211123.
1047

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cared about “shar[ing] the word of God”. He expressed pride that the Accused admitted
to the crimes he committed and accepted his punishment.1050
622. The Chamber concludes that in his life before he became Chairman of M-13 andlater of S-21, the Accused was a well-respected student and teacher, who readily assisted
his fellow students and his pupils. It finds that the Accused has shown a constant andunusually strong level of commitment to his studies, to his teaching and in his politicaland religious beliefs. It is also satisfied that there were no factors in his professional orfamily life that in any way excuse his criminal conduct.
3.3.6 Impact of prior violations of the Accused’s rights upon sentence623. The Accused was held in continuous detention since 10 May 1999 when he wasarrested and detained by the Cambodian Military Court on various charges pursuant toCambodian law. On 31 July 2007, he was transferred to the ECCC Detention Facility
pursuant to orders of the Co-Investigating Judges, where he has remained in detention.1051
624. On 15 June 2009, the Chamber issued a written decision in which it ruled that, in theevent of a conviction, the Accused was entitled to full credit for the entirety of his timespent in detention since 10 May 1999. The Chamber further found the Accused’s
detention by the Cambodian Military Court between 10 May 1999 and 30 July 2007 tohave been unlawful and in violation of his rights to a trial within a reasonable time anddetention in accordance with the law. Accordingly, the Chamber stated that, should the
Accused be convicted, he would be entitled to a further reduction in his sentence, to be
decided at the sentencing stage, for the violation of these rights.1052
625. There is no established formula for quantifying such a reduction in an accused’s
sentence. The Chamber notes that the jurisprudence of the ICTR nevertheless offers some1050

T.15 September 2009 (Christopher LAPEL), pp. 2-27.
See Decision on Request for Release, E39/5, 15 June 2009, paras 2-5 (procedural history).
1052
Decision on Request for Release, E39/5, 15 June 2009.
1051

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helpful guidance in the matter.1053 Further, the Chamber considers that the reduction must
be express and measurable1054 and based on the totality of the circumstances of the case.
626. In the instant case, the Accused was unlawfully detained by the Cambodian Military
Court for more than eight years; far longer than the allowable provisional detention
period. There appears to have been no substantial and systematic investigation of theallegations against him throughout this period of detention, and the legal basis for his
continued detention was poorly elaborated. In some instances, extensions of the
Accused’s detention were ordered by the Prosecutor, rather than the competent judicial
authorities.1055
627. Neither the gravity of the crimes of which he was suspected nor the constraints
under which the Cambodian legal system was operating at the time can justify thesebreaches of the Accused’s rights. In light of the foregoing (Judge LAVERGNE dissenting
solely on the approach to sentence adopted by the majority), the Chamber decides that a
reduction of 5 years from the Accused’s sentence constitutes an appropriate remedy.
3.3.7 Sentence
3.3.7.1

Imprisonment

628. In deciding on an appropriate sentence, the Chamber has taken into account theentirety of the circumstances of this case, including all relevant sentencing principles andfactors previously discussed.
629. The Chamber has concluded unanimously that there are significant mitigating
factors which mandate the imposition of a finite term of imprisonment rather than a life
sentence. These factors include the Accused’s cooperation with the Chamber, admissionof responsibility, expressions of remorse (although undermined by his request for1053

See Prosecutor v. Barayagwiza et al., Judgement and Sentence, ICTR Trial Chamber (ICTR-99-52-T),
3 December 2003, paras 1106-1107; Semanza Appeal Judgement, paras 323-329; Kajelijeli Appeal
Judgement, para. 324.
1054
See Beck v. Norway, Judgement, ECtHR (no. 26390/95), 26 June 2001, para. 27; Chraidi v. Germany,
Judgement, ECtHR (no. 65655/01), 26 October 2006, paras 24-25; Dzelili v. Germany, Judgement, ECtHR(no. 65745/01), 10 November 2005, paras 83-85.
1055
See Decision on Request for Release, E39/5, 15 June 2009, paras 18-21.

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acquittal during closing statements), the coercive environment in DK in which heoperated, and his potential for rehabilitation.
630. The Chamber has further noted a number of aggravating features, including theshocking and heinous character of the offences, which were perpetrated against at least
12,273 victims over a prolonged period. Such factors, when considered cumulatively,
warrant a substantial term of imprisonment.
631. On the basis of the foregoing, the majority of the Chamber (Judge LAVERGNE
dissenting) considers the appropriate sentence to be 35 years of imprisonment.1056
632. The Chamber considers that a reduction in the above sentence of 5 years isappropriate given the violation of the Accused’s rights occasioned by his illegal detention
by the Cambodian Military Court between 10 May 1999 and 30 July 2007.
633. The Accused is entitled to credit for the time spent in detention,1057 for the following
periods:a.

10 May 1999 until 30 July 2007; i.e., the time spent in detention under theauthority of the Cambodian Military Court;b.

31 July 2007 until the Judgment becomes final, i.e., the time spent indetention under the authority of the ECCC.
3.3.7.2

Confiscation of personal property, money and real property

634. The Chamber has identified no personal property, money or real property acquired
unlawfully or by criminal conduct by the Accused. There are accordingly no identified
assets which could form the subject of confiscation pursuant to Article 39 (new) of the
ECCC Law.1058

1056

See Separate and Dissenting Opinion of Judge Jean-Marc Lavergne on Sentence, E188.1.
See Decision on Request for Release, E39/5, 15 June 2009.
1058“Inquiry into income and assets of the Accused”, E175, 15 October 2009.
1057

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4

CIVIL PARTY REPARATIONS

635. Internal Rule 100(1) provides that “[t]he Chamber shall make a decision on any
Civil Party claims in the judgment. It shall rule on the admissibility and the substance ofsuch claims against the Accused.” The provisions of the Internal Rules pertaining to Civil
Party participation have, since the commencement of trial, undergone significant
modification.1059 These amendments are aimed at ensuring, amongst other things, that
ECCC proceedings allow effective victim participation in relation to mass crimes and thespecific Cambodian context.1060 Due to the advanced stage of proceedings in Case 001 at
the time these reforms were commenced, these revised provisions have not been applied
to the present case.1061
4.1

Procedural history

636. Initial decisions on the admissibility of Civil Party applications ascertained that thecriteria for participation as a Civil Party were satisfied.1062 In common with the practice
before comparable international tribunals, the Chamber undertook a prima facie
assessment of the credibility of the information provided by the applicants.1063 This1059

ECCC Internal Rules (Revision 4), promulgated on 11 September 2009 and ECCC Internal Rules(Revision 5), promulgaged on 9 February 2010 (http://www.eccc.gov.kh/english/internal_rules.aspx).
1060
See ECCC Press Release dated 11 September 2009, issued at the conclusion of the 6th ECCC Plenary
Session (http://www.eccc.gov.kh/english/cabinet/press/131/ECCC_Plenary_11_Sep_2009_Eng.pdf).
1061
Internal Rule 114(3), adopted on 9 February 2010, provides that “[a]mendments concerning Civil Party
participation adopted at the 7th Plenary Session shall be applicable to those ECCC cases for which, at thedate of adoption, a closing order has not been issued”. Unless the context otherwise requires, all references
to the Internal Rules in this Section therefore pertain to Internal Rules (Revision 3), promulgated on 6
March 2009.
1062
See, however, Decision of the Trial Chamber Concerning Proof of Identity for Civil Party Applicants,
E2/94, 26 February 2009 (finding that proof of identity must be unequivocal and is not satisfied where theinformation provided merely appeared to be true in view of the significant rights enjoyed by Civil Parties attrial). Pursuant to Internal Rule 23(4), the Trial Chamber may at this stage declare a Civil Party application
inadmissible: a decision that is subject to appeal (Internal Rule 104(4)(e)).
1063
See, e.g., Rule 86 of the RPE of the Special Tribunal for Lebanon (“In deciding whether a victim may
participate in the proceedings, the Pre-Trial Judge shall consider […] whether the applicant has provided
prima facie evidence that he is a victim as defined in Rule 2. [“A natural person who has suffered physical,
material, or mental harm as a direct result of an attack within the Tribunal’s jurisdiction”]); see also
Prosecutor v. Lubanga, “Decision on victims’ participation”, ICC Trial Chamber I (ICC-01/04-01/061119), 18 January 2008, para. 99: “It would be untenable for the Chamber to engage in a substantive
assessment of the credibility or the reliability of a victim’s application before the commencement of thetrial. Accordingly, the Chamber will merely ensure that there are, prima facie, credible grounds forsuggesting that the applicant has suffered harm as a result of a crime committed within the jurisdiction of

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process is distinct from the Chamber’s determination of the merits of all applications in
the verdict, on the basis of all evidence submitted in the course of proceedings.1064
637. During the initial hearing, the Chamber confirmed the Civil Party status of the 28
individuals who joined the proceedings during the investigative phase.1065 The Chamber
received 66 additional Civil Party applications before the expiry of the 2 February 2009deadline, 65 of which were declared admissible either at the initial hearing or bydecisions of 26 February 2009 and 4 March 2009, respectively.1066 Consequently, 93
Civil Parties were permitted to take part in the proceedings. All were represented bylawyers, and organized into four groups. 22 Civil Parties were heard before the Chamber
during the course of trial.
638. On 17 August 2009, the Defence indicated its intent to challenge, on specified
grounds, a number of Civil Party applications.1067 Adversarial argument concerning thesechallenges took place on 26 and 27 August 2009.1068 In the course of the hearing, thelawyers for Civil Parties KEANG Vannary (E2/77) and ENG Sitha (E2/49) informed the
Chamber of the withdrawal of their applications.1069 On 15 September 2009, Civil Party
the Court. The Trial Chamber will assess the information included in a victim’s application form and his or
her statements (if available) to ensure that the necessary link is established”.
1064
Internal Rule 100 provides that the Trial Chamber “shall make a decision on any Civil Party claims inthe judgment. It shall rule on the admissibility and the substance of such claims against the Accused”; cf.
“Co-Lawyers for Civil Parties (Group 2) – Final Submission”, E159/6, 12 November 2009, paras 6-8(requesting the Chamber to instead treat all Civil Parties accorded interim recognition as recognized Civil
Parties).
1065
T., 17 February 2009, p. 34.
1066
See T., 17 February 2009, pp. 46, 50; see also Decision of the Trial Chamber Concerning Proof of
Identity for Civil Party Applications, E2/94, 26 February 2009; Decision on the Civil Party Status ofApplicants E2/36, E2/51 and E2/69, E2/94/2, 4 March 2009; see further Decision on Request to reconsider
decision on proof of identity for Civil Party application (E2/36), E2/94/4, 10 August 2009; Decision on
Motion Regarding Deceased Civil Party, E2/5/3, 13 March 2009.
1067
T., 17 August 2009, pp. 2-7; see also T., 17 February 2009, pp. 41-42; T., 10 August 2009, pp. 8-9.
1068
The Defence contested Civil Party applications E2/22, E2/37, E2/66, D25/15, E2/30, E2/38, E2/41,
E2/49, E2/63, E2/64, E2/65, E2/69, E2/70, E2/71, E2/73, E2/74, E2/75, E2/76, E2/77, E2/81, E2/82, E2/83,
E2/35 and E2/62. It withdrew its challenge to Civil Party applications E2/57 and D25/20 (“Written Recordof Proceedings”, E1/69, 26 August 2009; “Written Record of Proceedings”, E1/70, 27 August 2009); see,in response, “Civil Party Group 1 - Request to establish the status of Ly Hor as a survivor of S-21 andauthenticity of documents as a matter of record”, E137, 7 August 2009; “Civil Party Group 1 - Motion toestablish nature of relationship between four Civil Parties of Group 1 and direct victims of S-21” (E140),
13 August 2009; “Civil Party Group 1 - Motion to provide exhibits in support of five Civil Parties of Group1”, E165, 3 September 2009; “Co-Lawyers Group 2 - Request for Submission of Evidence in Support ofCivil Parties Group 2: E2/22, E2/35, E2/64, E2/66 and E2/83”, E163/3, 10 September 2009.
1069
T., 27 August 2009, pp. 7-8, 10.

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BUN Srey (E2/65) also abandoned the civil action.1070 In their final written submissions
and closing statements, the four Civil Party Groups requested the Chamber to declare thereparation claims of the remaining 90 Civil Parties admissible and to recognize their rightto reparation.1071
4.2

Assessment of the Civil Party applications

639. Once declared admissible in the early stages of the proceedings, Civil Parties mustsatisfy the Chamber of the existence of wrongdoing attributable to the Accused which has
a direct causal connection to a demonstrable injury personally suffered by the Civil Party.
4.2.1 Existence of injury
640. Internal Rule 23(2) provides that in order for Civil Party action to be admissible, theinjury must be “physical, material or psychological”, and the “direct consequence of theoffence, personal and have actually come into being”.1072
641. In addition to physical suffering, the injury in question may also be psychologicaland include mental disorders or psychiatric trauma, such as post-traumatic stress disorder,
or material injury pertaining to loss of property or income.1073 The injury suffered must
1070

“CPG3: Lettre d'abandon de Droit de la Constitution de la Partie Civile au près des Chambres
Extraordinaires au sein des Tribunaux Cambodgiens”, E2/65/5, 15 September 2009.
1071“Civil Party Group 1 – Final Submission”, E159/7, 10 November 2009; “Co-Lawyers’ for Civil Parties(Group 2) – Final Submission”, E159/6, 10 November 2009; “Civil Parties (Group 4) – Final Written
Submission”, E159/4, 10 November 2009; “Co-Lawyers for Civil Parties (Group 3) – Final Submission”,
E159/5, 11 November 2009; see also, T., 23 November 2009.
1072
Although no change in substance was entailed, these admissibility criteria and standard of proof wereclarified in the amendments adopted at the 7th Plenary Session. Rule 23bis (1) now provides:“In order for a Civil Party action to be admissible, the Civil Party applicant shall:a) be clearly identified; andb) demonstrate as a direct consequence of at least one of the crimes alleged against the Charged
Person, that he or she has in fact suffered physical, material or psychological injury upon whicha claim of collective and moral reparation might be based.
When considering the admissibility of the Civil Party application, the Co-Investigating Judges shall besatisfied that facts alleged in support of the application are more likely than not to be true.”1073
See e.g. T., 25 August 2009 (CHHIM Sotheara), pp. 41-42, 44-46 (detailing the consequences for themental and physical condition of family members of direct victims of S-21 and the nature of thetraumatisation resulting from knowledge of a relative’s death there as including, amongst other things,
identification with the suffering of victim, guilt, helplessness and psychiatric conditions such as posttraumatic stress disorder). Although only the English version of Rule 23(2)(a) refers to psychologicalinjury, the Khmer and French versions refer to préjudice moral and “ករខូចខតខងផលូវចិត”ត , respectively.

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be personal. The Chamber has previously ruled that a civil action may, under certain
conditions, be pursued on behalf of deceased Civil Party applicants by theirsuccessors.1074
4.2.2 Existence of a causal link between the victim’s injury and the Accused’s
offending
642. The injury suffered must result directly from the criminal conduct of the Accused.
The notion of “direct consequence” is expressly mentioned in Article 13 of the 2007
Code of Criminal Procedure and emphasizes the link between the crime and the injury
suffered, rather than the intended target of the criminal act. Responsibility is thus not
limited to persons against whom the crimes were committed, but may also be the directcause of injury to a larger group of victims.1075
643. Although the immediate family members of a victim fall within the scope ofInternal Rule 23(2)(b), direct harm may be more difficult to substantiate in relation to
See further Situation in Uganda, “Decision on the appeals of the Defence against the decisions entitled‘Decision on victims’ applications for participation […]’ of Pre-Trial Chamber II”, ICC Appeals Chamber,
25 February 2009 (ICC-02/04-179), para. 34.
1074
Civil Party SUOS Sarin (D25/24) died before the start of trial; see “Certificate of Death - Suos Sarin”,
E2/5/1.2. The Chamber determined that her husband, UM Pyseth, was authorized as a successor to continue
her civil action; see Decision on Motion Regarding Deceased Civil Party, E2/5/3, 13 March 2009, paras.
10-12 (finding that the successors of a deceased Civil Party must demonstrate that the Civil Party had filed
a Civil Party application. Absent such proof, successors can act only seek reparation in their own right).
1075
Under French law, which contains a similar prerequisite, close family members of a direct victim
qualify as Civil Parties in their own right, on the basis of Article 2 of the French Code of Criminal
Procedure: “Civil action aimed at the reparation of the damage suffered because of a felony, amisdemeanour or a petty offence is open to all those who have personally suffered damage directly causedby the offence” (emphasis added). See further Article 13 of the 1964 Cambodian Code of Criminal
Procedure, which notes: “Il ne suffit pas qu'il y ait tout à la fois une infraction à la loi pénale et un domage
causé, il faut de plus qu'entre ces deux éléments, il y ait un rapport de cause à effet ou en d'autres termes,
que ce dommage soit le résultat direct de l'infraction et qu'il soit né et actuel.” (emphasis added). The
extension of the notion of injury to all those who have suffered harm as a direct consequence of the crime isalso reflected in at least one other international legal instrument; see e.g. “Basic Principles and Guidelines
on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights
Law and Serious Violations of International Humanitarian Law, adopted and proclaimed by the United
Nations General Assembly”, GA UN Resolution 60/147, UN Doc. A/RES/60/147, para. 8: “For purposes ofthe present document, victims are persons who individually or collectively suffered harm, including
physical or mental injury, emotional suffering, economic loss or substantial impairment of theirfundamental rights, through acts or omissions that constitute gross violations of international human rights
law, or serious violations of international humanitarian law. Where appropriate […], the term “victim” also
includes the immediate family or dependants of the direct victim and persons who have suffered harm inintervening to assist victims in distress or to prevent victimization” (emphasis added).

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more attenuated familial relationships.1076 The Chamber nevertheless considers that harmalleged by members of a victim’s extended family may, in exceptional circumstances,amount to a direct and demonstrable consequence of the crime where the applicants areable to prove both the alleged kinship and the existence of circumstances giving rise to
special bonds of affection or dependence on the deceased. In this regard, the Chamber
accepts the view of expert CHHIM Sotheara regarding the nature of familial relationships
within Cambodian culture1077 and has therefore evaluated the claims of extended family
members who have sought to demonstrate a particular bond with immediate victims of S21 and S-24.
4.3

Responsibility of KAING Guek Eav vis-à-vis the Civil Parties

644. KAING Guek Eav has been convicted, in relation to offences committed at S-21 and
S-24, of crimes against humanity of persecution (extermination (encompassing murder),enslavement, imprisonment, torture (including one instance of rape) and other inhumaneacts) and of the following grave breaches of the Geneva Conventions of 1949: wilful
killing, torture and inhumane treatment, wilfully causing great suffering or serious injury
to body or health, wilfully depriving a prisoner of war or civilian of the rights of fair andregular trial, and unlawful confinement of a civilian. The Chamber now considers
whether he can also be found responsible for the particular harm alleged by two
categories of Civil Parties, namely those who claim to be survivors of S-21 or S-24, and1076

See e.g. Inter-American Court on Human Rights, Garrido and Baigorria v. Argentina, Reparations andCosts Judgment, 27 August 1998, para. 64; Castillo-Páez v. Peru, Reparations and Costs Judgment, 27
November 1998, para. 88-89; Loayza-Tamayo v. Peru, Reparations decision, 27 November 1998, paras 8890, 142-143, Case of the “White Van”(Paniagua Morales a.o.) v. Guatemala, Reparations decision, 25
May 2001, paras 106, 108 (using a broad notion of a “family” and applying a presumption of proof of
psychological harm suffered by parents and children of the person killed); see also Prosecutor v. Lubanga,“Judgment on the appeals of The Prosecutor and The Defence against Trial Chamber I’s Decision on
Victims’ Participation’ of 18 January 2008”, ICC Appeals Chamber, 11 July 2008 (ICC-01/04-01/061432), para. 32: “Harm suffered by one victim as a result of the commission of a crime within thejurisdiction of the Court can give rise to harm suffered by other victims. This is evident for instance when
there is a close personal relationship between the victims such as the relationship between a child soldier
and the parents of that child.”1077
T., 25 August 2009 (CHHIM Sotheara), pp. 36-37, 48 (noting the historical tendency of Cambodian
families to live together with other family members, such as aging parents or with siblings and theirfamilies and hence, the likelihood of strong bonds also to grandparents, cousins, uncles and aunts. While
such bonds were common, their closeness nevertheless depends on the particular case).

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those whose claims were instead based on alleged kinship or special bonds of affection or
dependency in relation to immediate victims of S-21 or S-24.1078
4.3.1 Civil Parties claiming to be survivors of S-21 or S-24
645. Of the eight Civil Parties who claimed to be survivors of S-21 or S-24, the Chamberconsiders the following four Civil Parties to have substantiated this claim and hence, tohave established that KAING Guek Eav is directly responsible for their harm suffered:1079••••

BOU Meng (D 25/1);
CHUM Mey (D 25/3);
CHUM Neou (D 25/16); andCHIN Met (E2/80).

646. It is beyond doubt that the few survivors of S-21 or S-24 suffered serious
psychological and physical harm, in addition to loss of close family members, as a directconsequence of the criminal conduct for which KAING Guek Eav was convicted.1080

1078

See Internal Rule 23(6)(b), which provides: “The Chambers shall not hand down judgment on a Civil
Party action that is in contradiction with their judgment on public prosecution of the same case”. Although
it follows that acquittal of the Accused would end a claim for reparation, responsibility in relation to eachindividual Civil Party does not automatically follow from a criminal conviction of the Accused. Further,and while the Chamber was not required to precisely identify every victim in convicting KAING Guek Eavof the crimes for which he was charged, it has considered the particular circumstances of many Civil
Parties in its assessment of the evidence.
1079
The Chamber in the course of trial accepted evidence tendered in support of Civil Party claims suchas detainee lists, official lists or registers, confessions, photographs and other evidence from S-21 that
identified detainees. Where the Accused himself acknowledged the truthfulness of Civil Party statements
and the documentary evidence provided, the Chamber has also tended to accept its veracity. The Chamber,
however, is unable to determine a Civil Party application based on uncorroborated Civil Party statements
alone; see e.g Prosecutor v. Kony et al, “Judgement on the appeals of the Defence against the decisions
entitled ‘Decision on victims’ applications for participation […]’ of Pre-Trial Chamber II”, ICC Appeals
Chamber, (ICC-02/04-01/05-371), 23 February 2009, paras. 36, 38 (“[I]t is an essential tenet of the rule oflaw that judicial decisions must be based on facts established by evidence. Providing evidence tosubstantiate an allegation is a hallmark of judicial proceedings [….] What evidence (be it documentary orotherwise) may be sufficient cannot be determined in the abstract, but must be assessed on a case-by-casebasis and taking into account all relevant circumstances, including the context in which this Court
operates”).
1080
All survivors have given credible accounts of their past and present suffering as a consequence of
their internment; see e.g. T., 20 August 2009 (CHUM Neou), pp. 83-85, 88-89 (recounting the loss of herbaby while detained at S-24 and husband NOU Samouen at S-21); T., 1 July 2009 (BOU Meng), pp. 11-32,
43-45 (detailing detention and torture, in addition to the loss of his wife MA Yoeun alias Thy, at S-21); T.,
30 June 2009 (CHUM Mey), pp. 10-14, 22-27 (recounting severe torture at the S-21 complex, during which
his toenails were ripped out); T., 8 July 2009 (CHIN Met), pp. 54-79 (detailing internment at S-24 andsuffering, amongst other things, malnutrition and forced labour over a sustained period).

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647. Despite the undoubted physical and psychological harm suffered by the remaining
four Civil Parties claiming to be survivors of S-21, the Chamber is not satisfied to therequired standard that the following Civil Parties were victims of crimes committed by
KAING Guek Eav at S-21 or S-24:-

Although the Chamber does not doubt that LAY Chan (E2/23) suffered severe harm

as a result of detention, interrogation and torture during the DK period, no evidence wasprovided to show that this occurred at S-21. No objective proof from official registers,
photographs or confessions corroborates his claim to have been detained there, and his
description of detention conditions is at odds with the bulk of the evidence before theChamber regarding established practices at S-21.1081 The Chamber is accordingly notsatisfied to the required standard that LAY Chan (E2/32) was detained either at S-21 or
S-24. Absent sufficient proof of a causal link between the events described and thecrimes for which KAING Guek Eav was convicted, his Civil Party application is rejected;-

NAM Mon (E2/32) stated that she was initially a member of the S-21 medical staff,

and was later detained there following the arrest of some of her brothers, who were S-21
guards. From there, she was allegedly transferred to S-24 and then to another detention
centre.1082 There are, however, inconsistencies between the information contained in her
Civil Party application and her in-court statements and subsequent submissions.1083 She
was unable to provide any particulars concerning either S-21 or S-24 and the evidence
produced by her purporting to show kinship to persons photographed and executed at S-

1081

T., 07 July 2009 (LAY Chan), pp. 8, 11-2, 17-19 (stating that he was unable to recall being officiallyregistered or photographed or having to provide a biography, providing a description of his cell that does
not correspond to others provided of the cells at S-21 and claiming, contrary to established policies, to havebeen released from S-21 without explanation. During a site visit to S-21, he was also unable to recognize
any part of S-21 as the place where he was incarcerated).
1082
T., 9 July 2009 (NAM Mon), pp. 58-61.
1083
Based on the date of birth provided in Civil Party Application E2/32, which is 2 July 1968, the Civil
Party would have joined the S-21 medical staff at the age of 6 or 7 years. Further, her in-court statements
diverged in significant respects from those provided by other witnesses and experts heard in the course ofproceedings: see T., 09 July 2009 (NAM Mon), pp. 81-85; see also Decision on Parties Requests to Put
Certain Materials Before the Chamber Pursuant to Internal Rule 87(2), E176, 28 October 2009, para. 14(rejecting a request that a further written submission be accepted as evidence); see also T. 27 August 2009,
pp. 37-38; “Co-Lawyers Group 2 – Request for Submission of Additional Statement of Civil Parties E2/32
of the Case File 001/18-07-2007-ECCC/TC”, E2/32/5, 2 September 2009.

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21 do not clearly establish that these persons are her relatives.1084 Even allowing for the
impact of trauma and the passage of time, the Chamber is unable to conclude that NAM
Mon (E2/32) was detained either at the S-21 complex or at S-24. Although the Chamber
acknowledges her tremendous suffering, NAM Mon’s Civil Party application is also
rejected;-

PHAOK Khan (E2/33) recounted being tortured and interrogated at a prison in thevicinity of Phnom Penh during the DK period.1085 While it is plausible that the Civil Party
may have been detained and tortured by Khmer Rouge soldiers, there is no objective
evidence that this occurred at the S-21 complex.1086 The description provided of his placeof detention does not match that of S-21 and, contrary to standard S-21 procedures, theCivil Party was neither photographed nor compelled to provide a biography.1087 In
addition, the Civil Party’s account of his escape from the place of execution and thegeographical indicia provided are inconsistent with Choeung Ek, where he claims to havebeen left for dead.1088 PHAOK Khan further alleged that his wife and a cousin were also
killed at S-21. However, no evidence was furnished to show that his wife was detained
there. While it is undisputed that an individual named CHOEUNG Phoam was detainedand executed at S-21, the applicant himself admitted that he could not provide proof of
his relationship to him.1089 His Civil Party application is therefore also rejected;-

LY Hor (E2/61) avers that he was detained first at the S-21 complex and latertransferred to S-24, from where he escaped.1090 While the existence of a detainee named
1084

T., 13 July 2009 (NAM Mon), pp. 19-26 (revealing inconsistencies regarding the names or time ofdeath of the direct victims alleged to be the Civil Party’s relatives). Neither the name nor any of the aliases
used by her alleged relatives appear on any of the staff lists or detainee lists of S-21.
1085
T., 7 and 8 July 2009 (PHAOK Khan).
1086
The only S-21 document alleged to include the Civil Party’s name is an analysis of the confession of adetainee named Sok Nann, who named Phok Sakhon as an enemy; see “Annex 3: Biography of Phok
Sakhon”, E5/7/1.3. However, there is no indication that this name was one used by the Civil Party. Further,admissibility of this document is questionable, since the confessions in question may have been obtained
under torture; see “Order on use of statements which were or may have been obtained by torture”, D130/8,
28 July 2009 (in relation to Case File 002).
1087
T., 7 July 2009 (PHAOK Khan), pp. 70-71, 82-83. The Civil Party further admitted during a group
visit to the Tuol Sleng Museum in 2008 that he was unable to recognize this location as the place where he
was detained. See T., 7 July 2009 (PHAOK Khan), p. 12.
1088
T., 7 July 2009 (PHAOK Khan), pp. 67-69, 77-78; T., 8 July 2009 (PHAOK Khan), pp. 10-11.
1089“Co-Lawyers for Civil Parties (Group 3) – Final Submission”, E159/5, 11 November 2009, para. 93.
1090
T., 6 July 2009 (LY Hor), p. 9.

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EAR Hor at S-21 may be accepted on the basis of the documents and explanations
provided, there is doubt as to whether this detainee was the Civil Party.1091 Further, there
is no indication in the S-21 archives of the detainee having been transferred from S-21 to
S-24 and no explanation was given for this alleged transfer, which was contrary to thenorm.1092 The Chamber accordingly also finds LY Hor’s Civil Party application not tohave been established to the required standard.
4.3.2 Other Civil Parties
648. As noted, Civil Parties claiming to be victims due to the loss of a close relative at S21 and S-24 must prove that at least one of their family members was the immediate
victim of the crimes for which KAING Guek Eav was convicted. The Chamber finds thatthe following Civil Parties have been unable to establish the existence of immediate
victims to the required standard:-

SO Saung (E2/34) alleges that her brother-in-law MEAS Sun alias TENG Sun was

detained and executed at S-21. In support of her claim, she provided a photograph fromthe archives of the Tuol Sleng Museum.1093 However, the photograph provides noattestation of identity and on its own does not establish that the person in the photographis actually MEAS Sun. Further, no proof was provided of any dependency or special
bonds of affection between the Civil Party and her brother-in-law;1094-

CHHAY Kan (E2/35) alias LEANG Kan, alleges that one of her nephews, NHEM

Chheuy, was detained at S-21, having seen his photograph when visiting the Tuol Sleng
Museum.1095 While it is established that, as a child, LEANG Kan lived with this nephew,
1091

The Chamber is uncertain that LY Hor was also known by the name EAR Hor during the DK period.
cf. “Civil Party Group 1 - Request to Establish the Status of LY Hor as a Survivor of S-21 and Authenticityof Documents as a Matter of Record”, E137, 28 July 2009.
1092
Although a handwritten annotation on the biography of detainee EAR Hor indicates that he was“released on 8 March 76” (“Biography of EAR Hor”, E2/61.2,ERN 00361722), KAING Guek Eav andnumerous witnesses, including several former S-21 staff members, all testified that apart from very few
exceptions not involving ordinary prisoners, all S-21 detainees were executed (see e.g., T., 27 July 2009
(SUOS Thy), pp. 102-103.)
1093
See “Photograph of Teng Sun”, E5/7/1.4; “Attestation”, E161.2.
1094
Although kinship by marriage was established by attestation (“Lettre de confirmation”, E2/34/5.2),
such kinship alone is insufficient (Section 4.2.2).
1095
See “Photograph of LEANG Kan at S-21”, E2/35.2.

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who was an orphan,1096 it has not been established that the photograph of the detainee
provided in support of her application is in fact that of NHEM Chheuy;1097-

HIET Tey Chov (E2/38) reports the loss of several family members during the DK

period and alleges that his uncle SOSS El alias TEU El was arrested in April 1975 anddetained at S-21.1098 However, no evidence was provided in support of this claim;-

Civil Party E2/62 claims that her brother was allegedly detained and executed at S-

21. In support of her claim, she provided a photograph from the Tuol Sleng Museum
archives.1099 However, the photograph is unidentified and therefore does not establish
whom the photograph depicts. Further, and as the Civil Party has acknowledged, nodocument exists to substantiate the nature of her alleged kinship to the victim;1100-

PANN Pech (E2/63) claims that her brother-in-law PLAING Hauy was allegedly

detained and executed at S-21 but provides no evidence in support of this claim;1101-

LIM Yon (E2/69), in addition to reporting the arrest and execution of several

relatives during the DK period, claims that one of her brothers was allegedly imprisoned
at S-21.1102 However, no evidence was provided to corroborate this claim;-

CHAN Yoeurng (E2/70) claims that her uncle SOK Bun was detained and executedat S-21. While an attestation of this kinship was provided,1103 the applicant admits that nosubstantiation of her uncle’s alleged detention at S-21 was provided.1104

1096

See “Letter of certification of CHHAY Kaen by commune chief”, E163/3.5.
T., 23 November 2009 (Civil Party lawyer), p. 49 (noting that the search for further information proved
fruitless).
1098“Victim Information Form - HIET Tey Chov”, E2/38.
1099
See “Photograph at S-21”, E165/1/1.2; “Letter of certification by Chief of Tuol Sleng genocide
museum”, E165/1/1.3.
1100
T., 23 November 2009 (Civil Party lawyer), p. 21.
1101
Further, alleged kinship by marriage alone is an insufficient basis for a Civil Party application (Section
4.2.2).
1102“Victim Information Form – LIM Yon”, E2/69.
1103
See “Letter of certification of CHAN Yoeurng by commune chief”, E161.5 (available in Khmer only).
1104“Co-Lawyers for Civil Parties (Group 3) – Final Submission”, E159/5, 11 November 2009, paras 115118.
1097

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NORNG Sarath alias Por (E2/73) claims that his cousin NORNG Saruoth and his

uncle NORNG Soang were detained and executed at S-21.1105 However, the applicant
provided neither documentary proof in support of this alleged detention nor any
attestation establishing the alleged kinship;-

NGET Uy (E2/74) alleges that her husband PRAK Pat, a former Khmer Rouge

military cadre, was imprisoned, tortured and executed at S-21. In support of her claim,
she referred to the testimony of a nephew of her husband, who allegedly worked at S21.1106 However, the precise identity of this potential witness was not disclosed. Further,no attestation or document corroborates either this claim or the alleged marital bond;1107-

THIEV Neab alias KHIEV Neab (E2/75), claims that her husband Heng CHOEUN

alias CHOEUN, was arrested in late 1978 while he was a civil servant at Office 870 andtaken to Prey Sar (S-24). She claims to have witnessed his arrest and alleges that a soldier
named Reth informed her of her husband’s death at S-24.1108 However, the exact identityof this witness is unknown, and no attestation or document corroborates her claims.
Further, no proof of this kinship is provided;-

MORN Sothea (E2/82) claims that his mother, a former diplomat, and many otherfamily members disappeared during the evacuation of Phnom-Penh in April 1975.1109
Although his statement appears credible, it is unsupported by proof of any demonstrable
link to the crimes for which KAING Guek Eav has been convicted;-

HONG Savath (E2/83) alleges that her uncle LOEK Sreng was detained andexecuted at S-21.1110 She claims to have recognised him in a photograph she saw in 2008
during a visit to the Tuol Sleng Museum. However, neither this photograph nor any
documentary evidence was provided as proof of her uncle’s detention at S-21. The Civil

1105

See “Victim Information Form – NORNG Sarath”, E2/73.
“Claiming letter by Nget Uy”, E2/74.1.
1107“Claiming letter by Nget Uy”, E2/74.1; T., 23 November 2009 (Civil Party Group 1 Closing
Statement), p. 21.
1108“Claiming letter by THIEV Neab”, E2/75.1.
1109“Victim Information Form – MORN Sothea”, E2/82; T., 26 August 2009 (Civil Party lawyer), p. 57.
1110
See “Confirmation letter of YOU Hong by the commune chief”, E163/3.11 (establishing proof of
kinship).
1106

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Party, who was 11 years of age when her uncle disappeared, has also not provided
evidence of any special bonds of affection or dependency in relation to her uncle.
649. The following Civil Parties have also not provided proof of kinship or special bondsof affection or dependency in relation to immediate victims of S-21 or S-24:-

KHUON Sarin (D25/11), whose claim is based on the arrest and execution of

KHIEV Sakhor, a staff member of the Cambodian embassy in Japan. While KHIEV
Sakour’s detention at S-21 has been proven,1111 there is no document showing the exact
nature of his alleged kinship to the Civil Party or proof of any special bonds of affection.
Although KAING Guek Eav did not dispute this Civil Party application, the Chamber
nevertheless cannot uphold it;-

SUON Seang (D25/15) was allegedly told by friends that three of his younger

brothers had been detained at S-21. However, no proof of their detention was provided.
He further claims that one of his cousins PEIN Um alias Rith, was also detained andexecuted at S-21. While the detention of an individual named PEIN Um at S-21 has been
established,1112 the Civil Party provided no proof of kinship to him;1113-

CHHOEM Sitha (E2/22) described the arrest, mistreatment and execution ofsoldiers from Division 310, of which he was a member. Although many soldiers from this
Division were detained at S-21, none of these immediate victims were identified save for
an individual named KAUV Phalla.1114 A certificate from his village chief and commune
chief states that CHHOEM Sitha was allegedly the uncle of a KAUV Phalla. However, aspecial bond of affection has not been proved;1115-

KLAN Fit (E2/37) claims that he was arrested along with 10 other friends, six ofwhom were ultimately imprisoned at S-21. Bonds of friendship, however, do not fallwithin the scope of the criteria in Internal Rule 23(2)(b) (Section 4.4.4);1111

See e.g., “Confession of KHIEV Sakuor at S-21”, E2/12.1 (available in Khmer only).
See “Biography of PEN Um from S-21”, E165/1/2.6; “Biography – PEN Um”, E165/1/2.4.
1113
See “Family Record Book of SUON Seang”, E165/1/2.1.
1114
See “Biography of prisoner in detention – KAUV Phalla”, E163/3.4.
1115
See “Confirmation letter of CHHOEM Phom by commune chief”, E163/3.2.
1112

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NHEB Kimsrea (E2/64) claims that her uncle CHEAB Baro alias Pen, the latter’s

wife KHUT Phorn and five of her cousins were detained and executed at S-21. There isevidence to show that an individual named CHEAB Parou alias Pen, was detained at S21.1116 However, the applicant, who was born in 1978, acknowledges that she could nothave known her uncle, her aunt and her cousins.1117 Accordingly, special bonds ofaffection have not been established between the applicant and these relatives;-

SOEM Pov (E2/71) alleges that her brother-in-law NGUY Sreng was detained andexecuted at S-21.1118 In support of these claims, she provided a biography from thearchives of S-21.1119 Although the detention of NGUY Sreng at S-21 is thus established,kinship by marriage alone is an insufficient foundation absent proof of any special bondsof affection or dependency (Section 4.2.2);-

Jeffrey JAMES (E2/86) and Joshua ROTHSCHILD (E2/88) allege that their uncle

James W. CLARK was detained and executed at S-21. The detention of James W.
CLARK at S-21 is undisputed.1120 However, the applicants’ kinship to the victim was notestablished to the required standard.1121 Although describing their distress at discovering
his fate, the applicants, aged 5 and 8 years respectively when James W. CLARK wasarrested, have also not substantiated any special bond of affection or dependency inrelation to the victim.
650. The Chamber finds the following Civil Parties to have proved the existence ofimmediate victims of S-21 or S-24 and either close kinship or particular bonds ofaffection or dependency in relation to these victims.1122 They have further shown that the1116

See “Biography of prisoner in detention”, E163/3.8; “Confession of CHEAP Parou alias Pen”,
E163/3.9.
1117
See T., 23 November 2009 (Civil Party Group 2 Closing Statement), p. 48.
1118
See “Letter of certification of SOEM Pov by commune chief”, E161.6 (available in Khmer only)(establishing kinship by marriage).
1119
See “Biography – NGUY Sreng”, E2/71.2.
1120
Confessions by James W. Clark from the Tuol Sleng Museum were provided; see “Confession ofJames William Clark”, E2/86.3 and E2/88.3; “Declaration of James William Clark”, E2/86.5 and E2/88.5.
1121
See “Passport of Jeffrey James”, E2/86.1; “Passport of Joshua Rothschild”, E2/88.1; “Certificate oflive birth - Jeffrey James”, E140.10 (establishing that the applicants are the sons of Sherry Alice Clark, but
not that Sherry Alice Clark is the sister of James W. Clark).
1122
In many instances, the Chamber considered that proof of kinship alleged could be inferred from thepersonal and family data contained in the detainee’s confessions or biography, especially where this was

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death of these victims caused demonstrable injury within the scope of Internal Rule 23(2)and that this harm was a direct consequence of the crimes for which KAING Guek EAV
was convicted:1123•

BOU Meng (D25/1) for the loss of his wife MA Yoeun alias Thy;•

CHUM Neou (D25/16) for the loss of her husband NOU Samouen and herchild;•CHHIN Navy (D25/2) for the loss of her husband TEA Havtek;•

HAV Sophea (D25/4) for the loss of her father CHIN Sea alias HAV Han;•

PHUNG Guth Sunthary (D25/5) and IM Sunthy (D25/7) for the loss of
their father and husband PHUNG Ton, respectively;•

CHUM Sirath (D25/6) for the loss of his two brothers CHUM Narith and
CHUM Sinareth;•

MEASKETH Samphotre (D25/8), TIOULONG Antonya (D25/27),
TIOULONG-ROHMER Neva (D25/28), KIMARI Nevinka (D25/26) and
KIMARI Visaka (E2/29) for the loss of their daughter, sister, and mother
TIOULONG Raingsy and son-in-law, brother-in-law and father LIM
Kimari, respectively;•

ROS Men (D25/9) for the loss of her brother ROS Thim;•

CHE Heap (D25/10) for the loss of his brother CHE Heng;•

CHRAING Sam-Ean (D25/12) for the loss of his brother CHRAING Sam
On alias SOAM Sam On;•

SEANG Vanndi (D25/13) for the loss of his brother SEANG Phon1124;•

TOCH Monin (D25/14) for the loss of his cousin CHEA Khan with whom
he was raised and of whom he is the only surviving relative;•

KAUN Sunthara (D25/17) for the loss of her brother CHIM Lang andsister-in-law AOM Kin Daunny;•

MAN Saut (D25/18) for the loss of his son MAN Sim alias Riem;

consistent with the information provided by the applicant. The Chamber accepted this information where it
recorded the detainee’s identity and was contained in a preliminary part of the document that could notreasonably be presumed to have been obtained under torture. See e.g., “Confession of Michael Scott
DEEDS”, E3/472/3 (regarding kinship to Timothy Scott DEEDS).
1123
As some Civil Party applications are accepted on the basis of victims who were immediate family
members, other victims who were instead extended family members are listed merely for information
purposes. It is only where applications were based exclusively on alleged links to extended family membersthat the Chamber has considered whether sufficient evidence was provided to show the existence of special
bonds of affection or dependency. Reference to the evidence accepted by the Chamber is made only in
relation to applications that were contested at trial.
1124“Written Record of Response of Sieng Phon alias Pha”, E141.1.

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KONG Teis (D25/19) for the loss of her husband SEK Chhiek;•

NGETH Sok (D25/20) for the loss of her brother NOB Sar alias NOB
Ngan alias Chareun alias NGETH Ngem1125;•

TATH Lorn (D25/21) for the loss of his father SOK Sort alias SOK Pon;•

Timothy Scott DEEDS (D25/22) for the loss of his brother Michael
DEEDS;•YIM Leng (D25/23) for the loss of his father THLORK Luon alias Yorn;•

UM Pyseth as successor of his late wife SUOS Sarin (D25/24) for the lossof the latter’s sister SUOS Sovann;•

KE Khon (D25/25) and KE Samaut (E2/46) for the loss of their brother
KE Kengsy;•

IEM Soy (E2/21) for the loss of her brother CHUH Choy alias Cheiv;•

UL Say alias Riem (E2/24) for the loss of her husband ENG Mak alias
Venn;

•

SIN Lim Sea (E2/25) for the loss of his elder sister SIN Chhun Lim;•OU Savrith (E2/26), NHEK OU Davy (E2/31) and OU Kamela (E2/27)
for the loss of their brother, husband and father OU Vindy, respectively;•

ROS CHUOR Siy (E2/28) for the loss of her husband ROS Sarin;•

NHOEM Kim Hoeurn (E2/30) for the loss of her two brothers NHOEM
Kuy and NHOEM Chan;1126•

SUON Sokhomaly (E2/39) for the loss of her husband SUON Kaset;•

SIN Sinet alias Srun (E2/41) for the loss of her grandfather PHEACH Kim
alias Sin, in whose house she had lived since the age of 7;1127•

ROUN Sreynob (E2/42) for the loss of her brother ROUN Math alias
Savy;

•

EL Li Mah (E2/43) for the loss of her brother ISMAEL Asmat alias Sokh;

1125

See “Birth certificate of Ngeth Sok”, E165/1/5; “National Identity Card of NGETH Sok”, E165/1/5.1(attesting to the alleged kinship); “Biography – Sar alias Chareun”, E3/467/2 and E165/1/5.2;“Attestation”, E165/1/5.3 (available in Khmer only) (attesting to the detention of NOB Sar alias NOB
Ngan alias Chareun, at S 21).
1126
See “Claiming letter of CHEA Im”, E2/30.10; “Statement of KIM Kuch and HEM Sakou”, E164/1.1(certified by the commune chief and attesting to the alleged kinship); “Photo of NHOEM Kuy”, E2/30.2;“Photo of NHOEM Kuy taken at S-21”, E2/30.8; “Photo of NHOEM Chan”, E2/30.3; “Photo of NHOEM
Chan taken at S-21”, E2/30.9; “Affirmation letter of KIM Kuch and HEM Sakou”, E164/1.2 (certifying thatthe persons appearing in the photographs are NHOEM Kuy, NHOEM Chan and DUONG Rum);“Biography of prisoner in detention – NHOEM Chan”, E2/30.6.
1127
See “Birth Certificate of SIN Sinet”, E165/1/3; “Family Record Book of SIN Sinet”, E165/1/3.1;“Biography of prisoner in detention – PHEACH Kim”, E165/1/3.2; “Victim’s picture at S-21”, E165/1/.3.4;“Picture of Civil Parties identifying victim’s picture at S-21”, E165/1/3.5.

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SMAN Sar (E2/45) and SMAN Nob (E2/44) for the loss of their brother
SMAN Sles alias LENG Sokha and for the loss of their son and nephew,
SA Math alias Saroeun, respectively;•

MEN Lay (E2/47) for the loss of her son MIN Kan;•

NHEM Sophan (E2/48) for the loss of her sister NHEM Thol alias Ra;•

NETH Phally (E2/50) for the loss of his brother NETH Bunthy;•

MAN Mas alias MAN Malymas (E2/51) for the loss of her son TA
Losmath alias Man Math;•

KOM Men alias KUM Men (E2/52) for the loss of her husband SREI Yeng;•

TRY Ngech Leang (E2/53) for the loss of her brother KHOEUNG
Muoysoa;•

HENG Ngech Hong (E2/54) for the loss of her father SOK Heng;•

BENG Chanthorn (E2/55) for the loss of his brother BENG Pum;•

YUN Chhoeun E2/56) for the loss of a nephew YUN Loeun, who lived in
his house until aged 15, when he was conscripted into the army;•

LY Khiek (E2/57) for the loss of his sister AUY Mao alias Ren;1128•

PUOL Punloek alias Nget (E2/58) for the loss of his father POUL Toeun
alias Chaing;•

CHANN Krouch (E2/59) for the loss of his brother CHANN Noun alias
Sinoun;•NORNG Kim Leang (E2/60) for the loss of her sister NORNG Kim Guek
alias NORNG Kimvet;1129•

PENH Sokkhun (E2/66) for the loss of her sister PENH Sopheap;1130•

KAN San (E2/72) for the loss of her brother KAN Kan;•UNG Voeurn alias HUL Voeurn (E2/76) for the loss of her brother UNG
Koam alias Phoan;1131•

MEAS Saroeurn (E2/78) for the loss of her father OUK Tob;

1128

See “Birth Certificate of LY Khiek”, E165/1/4; “Book of residence of LY Khiek”, E165/1/4.1; see also
“S-21 Daily name list of prisoners”, E165/1/4.2 (attesting to the alleged kinship and detention at S-21 of
AUY Ren alias Mao, whose name appears on the prisoner list with an annotation indicating that she died ofillness).
1129
See “Victim Information Form – NORNG Kim Leang”, E2/60; “Biography of prisoner in detention –NORNG Kimvet”, E2/60.1.
1130
See “Biography – PENH Sopheap”, E2/66.3; “Attestation from KID (Khmer Institute of Democracy)”,
E2/66/3 (available in Khmer only); see also “Identity Card of PENH Sokhen”, E2/66/5; “Confirmation
letter of YIN Sam An by commune chief”, E163/3.10 (attesting to the alleged kinship).
1131
See “Certificate letter by the mayor of the commune”, E164/1.9 (attesting to the alleged kinship);“Biography - UNG Koam”, E2/76.4.

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4.4

•

SEK Siek (E2/79) for the loss of her cousin and fiancé MORK Chhoeun,
who was living in the family’s house;•

CHHAT Kim Chhun (E2/81) for the loss of his father AM Thoat and a
relative called POT Mouy alias SA Phal;1132•

UK Vasorthin (E2/84) for the loss of his father OUK Chy;•

Martine LEFEUVRE (E2/85) and OUK Neary (E2/89) for the loss
respectively of their husband and father OUK Ket; and•Robert HAMILL (E2/87) for the loss of his brother Kerry HAMILL.

Claims for reparations

651. Requests for reparations by Civil Parties whose harm was recognized by the
Chamber to have been directly caused by the crimes committed by KAING Guek Eav
shall be granted where the awards sought:a) qualify as collective and moral reparations within the meaning of Internal
Rule 23(1)(b), andb) are sufficiently certain or ascertainable to give rise to an enforceable order
against the Accused.
4.4.1 Civil Party requests
652. On 27 August 2009, the Chamber directed the Civil Party groups to file written
submissions outlining the forms of collective and moral reparations sought against the
Accused, if convicted.1133 In response, the Civil Parties filed a joint submission whichstressed the right of victims of mass violence and gross human rights violations toreparation, and requested that reparations awarded against the Accused should include asa minimum:1134

1132

See “Letter of certification of CHHAT Kim Chhun by commune chief”. E161.10 (available in Khmer
only), “Photo OM Thon”, E161.12 (available in Khmer only), “Letter of certification of CHHAT Kim
Chhun by commune chief”, E161.11 (available in Khmer only), “S-21 biography of Detainee POT Moy”,
E2/81.3 (available in Khmer only); “Biography – POT Moy”, E2/81.4.
1133
Direction on Proceedings relevant to Reparations and on the Filing of Final Written Submissions,
E159, 27 August 2009.
1134“Civil Parties’ Co-Lawyers’ Joint Submission on Reparations”, E159/3, 14 September 2009, paras 4344 (requesting “meaningful reparations […] of a collective and moral nature”, which the ECCC “should try
to maximize […] by working with the Government of Cambodia and established NGOs”).

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the compilation and dissemination of statements of apology made by KAING
Guek Eav throughout the trial acknowledging the suffering of victims, includingcomments by the Civil Parties;•

access to free medical care (both physical and psychological), including freetransportation to and from medical facilities;•

funding of educational programs which inform Cambodians of the crimes
committed under the Khmer Rouge regime and at S-21 in particular;•

erection of memorials and pagoda fences at S-21 (Choeung Ek and Prey Sar) as
well as in the local communities of the Civil Parties; and•inclusion of the names of the Civil Parties in Case 001 in the final judgment,along with a description of their connection to S-21.1135

653. In the event the Accused is found to be indigent, the Civil Parties requested the
Chamber to declare the ECCC competent to ensure that reparation awards are
implemented by the Royal Government of Cambodia in accordance with its international
obligations, or by the Victims Unit through a voluntary trust fund.1136
654. In their final submissions, the Civil Party groups reiterated the requests set out intheir Joint Submission, with Groups 1, 2 and 3 providing further particulars or
supplementary claims. In particular, Civil Party Group 1 requested:•

express recognition in the final judgment of the right to reparation;•

distribution of the findings of the Chamber at trial through various media outlets;•

access for victims in general and S-21 victims in particular to free medical care,including psychological assistance, and that assistance provided in this regard by
TPO be supported and reinforced through a reparations award;•

initiatives to educate Cambodian society concerning gross human rights abuses,
genocide and crimes against humanity. Specific measures requested in this regard
include salaries and training of teachers, provision of facilities, curriculum design,
publication of educational materials, and ongoing training for local participants ina rights education program;•assistance in the form of a fund for the Civil Parties, vocational training, microenterprise loans and business skills training;

1135“Civil Parties’ Co-Lawyers’ Joint Submission on Reparations”, E159/3, 14 September 2009, paras 16,
21, 24, 26-30, 45.
1136“Civil Parties’ Co-Lawyers’ Joint Submission on Reparations”, E159/3,14 September 2009, paras 241, 47.

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erection of memorials, particularly at Choeung Ek and Prey Sar, including acommemorative plaque listing the names of all known victims, information
boards listing the names of the Civil Parties, as well as pagodas and pagoda
fences in the local communities of the Civil Parties;•

proclamation of a national commemoration day to memorialize the victims whodied and suffered at the hands of the Khmer Rouge, distinct from the 7 January
Victory Day; and•full and frank disclosure of the assets in the name of the Accused.1137

655. Finally, Civil Party Group 1 requested the Chamber to clearly delineate its
framework for the enforcement and implementation of any reparations awards, and tofurther mandate the Victims Unit to undertake wider consultation on how reparations areto be approached in the Cambodian context.1138
656. Civil Party Group 2 requested that the Accused, regardless of his current income orproperty, take the following actions or bear the cost of the following reparations:

1137
1138

•

writing and sending a letter to the Royal Government of Cambodia requesting theGovernment to offer a genuine, truthful and sincere apology to the Civil Parties;•

installation of memorial stones for the Civil Parties and their relatives and the
production of information tablets about the victims, including the translation ofthis information into the other two working languages of the ECCC;•

construction of a memorial on the site of the former re-education centre at Prey
Sar and the organization of an associated international architectural competition;•

visits for at least 13 Civil Parties who are not from Phnom Penh to Tuol Sleng,
Prey Sar and Choeung Ek three times a year for four days per visit;•

medical treatment, medication and psychological services for all survivors of Tuol
Sleng, Prey Sar and Cheung Ek, if any, and for indirect victims if their illness isrelated to the crimes committed;•

production of at least 100 hours of audio-visual material of the trial, including its
distribution in the provinces for regular showing;•production of at least 10 written and audio documents summarising andexplaining the final judgment against the Accused for display in one pagoda ineach commune;•organisation of 17 ceremonies for the naming of a public building after a victim
and the production and installation of information tablets; and“Civil Party Group 1 - Final Submission”, E159/7, 10 November 2009, para. 121.
“Civil Party Group 1 - Final Submission”, E159/7, 10 November 2009, paras 119-124.

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writing and sending an open letter to the Royal Government of Cambodia
requesting that one third of the entrance fees to S-21 and Choeung Ek be utilized
for these reparations, and that the rest be divided among the Civil Parties as amonetary award.1139

657. Civil Party Group 3 requests the following reparations:•dissemination of information about the trial in each Cambodian province bysetting up exhibits in a public location;•compilation and publication of the statements of apology made by KAING Guek
Eav during the trial, acknowledging the suffering caused to the victims, together
with comments of the Civil Parties;•

access to free medical care, including physical and psychological therapy, andpayment of transportation costs to and from appropriate health facilities;•

funding of educational programs, both in schools and museums, that inform
Cambodians of the crimes committed under the Khmer Rouge regime at S-21,
S-24 and Choeung Ek in particular;•

erection of memorials both at Choeung Ek and Prey Sar;•

engraving the names of all Tuol Sleng detainees on the external wall of S-21;•

erection of a plaque memorialising all the victims that have not been identified;•construction of a walkway along the external wall of S-21;•

preservation of the buildings and cells at S-21 in their current state andpreservation of the instruments of torture that were found there;•

preservation of the existing archives at S-21, including those that are on display
and those that are in storage and not accessible to the public;•

conservation of the Vann Nath paintings displayed at S-21;•

protection of the Choeung Ek site;•

inclusion of the names of all the Civil Parties in the final judgment, including a
specification as to their connection with S-21; and•publication of the parts of the judgment recounting the facts and the responsibilityof the Accused, as well as the disposition, within six months to one year following
its notification in the official gazette and other national newspapers and ensuring
their regular broadcast on national radio and television networks.1140

658. In the event the Accused is determined to be indigent, Civil Party Group 3 further
request the Chamber to request the Royal Government of Cambodia to implement these1139“Co-Lawyers’ for Civil Parties (Group 2) – Final Submission”, E159/6, 5 October 2009, paras 14-21.
“Co-Lawyers for Civil Parties (Group 3) – Final Submission”, E159/5, 11 November 2009, see also
“CGP3 - Mémoire Additionnel Concernant la Reparation”, E159/3/1, 17 September 2009.

1140

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measures, in compliance with its international obligations, or order the establishment of avoluntary trust fund to be managed by Victims Unit. Finally, it requests the Chambers toestablish processes for the implementation of reparations and a mechanism for Civil
Parties to seek redress in case of non-compliance with reparations awards.1141
659. In response, the Defence in its final submissions indicated that it did not object tothe grant of the Civil Party requests for reparation, and took particular note of the request
for reparation in the form of a compilation and dissemination of statements of apology
made by KAING Guek Eav throughout the trial acknowledging the suffering of victims.
However, it pointed out that the Accused appeared to be indigent at the time of histransfer to the ECCC.1142
4.4.2 Legal framework
660. Civil Party participation before the ECCC includes both a right for victims toparticipate as parties in the criminal trial of an Accused in support of the Prosecution andto pursue a related civil action for collective and moral reparations against an Accused forharm that is directly attributable to the crimes for which the Accused is convicted.1143
661. Although the Internal Rules depart from Cambodian national law in significant
respects, the notion of Civil Party participation before the ECCC is derived fromanalogous forms of participation recognized before some national jurisdictions, includingin the Kingdom of Cambodia.1144 The key features of Civil Party participation are thatawards are directed against and borne exclusively the Accused following a determination
1141“Co-Lawyers for Civil Parties (Group 3) – Final Submission”, E159/5, 11 November 2009.
“Final Defence Written Submissions”, E159/8, 11 November 2009, paras 49-50.
1143
Internal Rule 23(1) provides that “[t]he purpose of Civil Party action before the ECCC is to: a)Participate in criminal proceedings against those responsible for crimes within the jurisdiction of the ECCC
by supporting the Prosecution; and b) Allow Victims to seek collective and moral reparations, as provided
in this Rule”.
1144
For instance, and unlike ordinary Cambodian courts, the ECCC lacks the competence to award
individual monetary compensation to Civil Parties, Reparations awards in the ECCC context are instead“collective and moral” (Internal Rule 23(1)(b)). Such departures from national law were considerednecessary in view of the large number of Civil Parties expected before the ECCC and the inevitabledifficulties of quantifying the full extent of losses suffered by an indeterminate class of victims.
Reparations before the ECCC were therefore intended to be essentially symbolic (aimed at conferring
official recognition upon victims, and assisting to restore dignity and preserve the collective memory)rather than compensatory.
1142

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of responsibility for the harm established by Civil Parties as resulting from the criminal
offending. The ECCC lacks the competence to enforce reparations awards.1145
Reparations awarded by the ECCC against an Accused can therefore only be enforced,
where necessary, within the ordinary Cambodian court system.
662. The Chamber acknowledges the principles expressing the right of victims of grossviolations of international human rights law to redress, reflected in a number ofinternational treaties and other instruments,1146 declarations of United Nation bodies1147
and decisions of regional courts.1148 The Chamber is nonetheless constrained in its task
by the requests before it and type of reparations permitted under its Internal Rules.
Limitations of this nature cannot be circumvented through jurisprudence but instead
require Rule amendments.1149

1145

See Article 1 of the ECCC Law and of the ECCC Agreement (conferring competence to prosecuteindividuals who were “senior leaders of Democratic Kampuchea and those who were most responsible forthe crimes and serious violations of Cambodian penal law, international humanitarian law and custom, andinternational conventions recognized by Cambodia […] committed during the period from 17 April 1975 to
6 January 1979”).
1146
See e.g., Articles 2(3), 9(5) and 14(6) of the ICCPR; Article 14 of the Convention against Torture andOther Cruel, Inhuman and Degrading Treatment or Punishment, 1465 UNTS 85, 10 December 1984;
Article 75 of the ICC Statute; Article 24 of the United Nations Convention for the Protection of All Persons
from Enforced Disappearance, GA Res. 61/177, 20 December 2006, A/RES/61/177, not yet in force; thisright is also enshrined in a series of regional treaties, such as Articles 5(5), 13 and 41 of the ECHR, Articles
25, 63(1) and 68 of the American Convention on Human Rights, 1144 UNTS 123, 22 November 1969 andArticle 21(2) of the African Charter on Human and Peoples’ Rights, 1520 UNTS 217, 27 June 1981; seealso Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations ofInternational Human Rights Law and Serious Violations of International Humanitarian Law, UNGA Res.
60/147, UN Doc. A/RES/60/147, 16 December 2005 and Declaration of Basic Principles of Justice forVictims of Crime and Abuse of Power, UNGA Res. 40/34, 29 November 1985.
1147
See e.g., UN Human Rights Committee General Comment No. 31 [80], The Nature of the General
Legal Obligation Imposed on States Parties to the Covenant, UN Doc. CCPR/C/21/Rev.1/Add.13, 26 May
2004, paras 15-17; UN Committee Against Torture General Comment No. 2, Implementation of article 2 byStates Parties, UN Doc. CAT/C/GC/2, 24 January 2008, para. 15.
1148
See e.g., Velasquez Rodriguez case, Judgement, Inter-American Court on Human Rights (Ser. C No.
4), 29 July 1988, para. 174; see also Papamichalopoulos v. Greece, Judgement, ECtHR (no. 14556/89), 31
October 1995, para. 36.
1149
The need to adapt Civil Party participation to the particular needs of trials of mass crimes and thespecific Cambodian context is a major impetus behind the ongoing reforms to victim participation before
the ECCC; see ECCC Press Release dated 9 February 2010, issued at the conclusion of the 7th ECCC
Plenary Session: http://www.eccc.gov.kh/english/cabinet/press/147/Press_Release_Conclusion_7th_Plenary_Session_(ENG.pdf) (notifying decision to empower the Victims Support Section, in the broader interestsof victms, to develop and implement new programs and measures occurring outside of formalized court
proceedings, encompassing a broader range of services, as well as a more inclusive cross-section of victims
than those who are admitted as Civil Parties in cases before the ECCC. The amended rules, applicable tofuture ECCC trials, further clarify that these measures may be developed in collaboration with

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663. Further, the competence of the ECCC is distinct from that of certain regional humanrights courts,1150 which are instead empowered to adjudicate questions of State
responsibility and to order States to make reparation to their citizens where foundresponsible for gross violations of international human rights law. The Chamber has no
jurisdiction over Cambodian or other national authorities or international bodies. Nor canit properly impose obligations on or grant rights to persons or entities that were notparties to the proceedings before it. At most, the Chamber can merely encourage national
authorities, the international community and other potential donors to show solidarity
with the victims by providing financial and other forms of support that contributes totheir rehabilitation, reintegration, and restoration of dignity.
664. Where an Accused appear to be indigent, there is currently no mechanism allowing
the ECCC to substitute or supplement awards made against them with funds provided bynational authorities or other third parties.
665. The Chamber is, additionally, unable to issue orders where the object of the claim is
uncertain or unascertainable, and which are incapable of enforcement. Accordingly, a
prerequisite to the grant of an award is the clear specification of the nature of the relief
sought, its link to the harm caused by the Accused that it seeks to remedy, and thequantum of the indemnity or amount of reparation sought from the Accused to give effectto it. Placing the burden on the Chamber to substitute its own decision in these areas isinconsistent with a mechanism that is claimant-driven, and is also irreconcilable with theneed for a fair and expeditous trial, the envisaged duration of the ECCC and the resources
at its disposal.

governmental and non-governmental agencies external to the ECCC. This creates the possibility to develop
more ambitious programs than would otherwise be achievable within the ECCC’s existing capacities andresources.)1150
See Articles 5(5), 13 and 41 of the ECHR, Articles 25, 63(1) and 68 of the American Convention on
Human Rights, 1144 UNTS 123, 22 November 1969 and Article 21(2) of the African Charter on Humanand Peoples’ Rights, 1520 UNTS 217, 27 June 1981.

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666. In the present context, constraints also stem from the overwhelming losses sufferedby the Civil Parties and the unlikelihood of recovery from KAING Guek Eav, who
appears to be indigent.1151
4.4.3 Analysis of the various categories of reparations requested
4.4.3.1

Requests pertaining to the content of the judgment

667. The Civil Parties request that their names and those of the immediate victims be
included in the final judgment, including a specification as to their connection with thecrimes committed at S-21. Although reparations before the ECCC are, strictly speaking,limited to measures ordered against the Accused, the Chamber alone was capable ofhonouring the request to include the names of Civil Parties and their relatives who died at
S-21 in this judgment. It also notes that comparable, official acknowledgments ofsuffering before other international bodies have been characterized as reparation of
considerable symbolic significance for victims.1152
4.4.3.2

Compilation and publication of statements of apology

668. The Civil Parties have requested the compilation and publication of all statements ofapology made by KAING Guek Eav during the trial, together with comments of the Civil
Parties. Numerous such statements were made during the course of trial. As thecompilation of these apologies and expressions of remorse may provide some satisfaction
to victims and as they are in substance the only tangible means by which KAING Guek
Eav may acknowledge his responsibility and the collective suffering of the victims of his

1151

According to the “Déclaration des revenus et biens” (Declaration of Means) completed by the Accusedat the request of the Chamber in October 2009, KAING Guek Eav has no bank account, owns no property
and has no income; see “Déclaration des revenus et biens de l’Accusé”, E175/1.1, 16 October 2009. The
Chamber notes that the Accused has been in detention since 1999.
1152
See e.g., Impunity, Commission on Human Rights Res. 2002/79 (UN Doc. E/CN.4/RES/2001/70), 25
April 2002, para. 9: “[The Commission on Human Rights] [r]ecognizes that, for the victims of humanrights violations, public knowledge of their suffering and the truth about the perpetrators […] of these
violations are essential steps towards rehabilitation and reconciliation, and urges States to intensify theirefforts to provide victims of human rights violations with a fair and equitable process through which these
violations can be investigated and made public and to encourage victims to encourage victims to participate
in such a process.”

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criminal conduct, the Chamber grants this request.1153 The Chamber nevertheless rejects
the request to include statements by Civil Parties within this compilation, on grounds thatsuch statements are distinct from the apologies made by KAING Guek Eav, and as theircontent has not been specified.
4.4.3.3

Requests concerning publication of the judgment and outreach669. Requests for, amongst other things, the production of documentaries and thedissemination in the broadcast media of portions of the judgement are rejected on
grounds of lack of specificity. The precise nature of the measures sought and their costs
are uncertain and indeterminable and accordingly not amenable to an award against
KAING Guek Eav. The Chamber notes, however, that the judgement will be issued
publicly, and made available on the ECCC website, where it will be accessible to all
media outlets wishing to make reference to it. It further notes that public provision of
information regarding the judgement will occur as a feature of the ECCC Public Affairs
Section’s outreach activities, which are likely to contribute significantly to reconciliation
initiatives within Cambodian society at large and public education.
4.4.3.4

Requests for individual monetary awards to Civil Parties or
establishment of a fund670. All requests which, whether directly or indirectly, seek individual monetary awards
for Civil Parties, or the establishment of a trust fund for victims, are beyond the scope ofavailable reparations before the ECCC. Accordingly, requests such as the provision of
vocational training, micro-enterprise loans and business skills training are rejected.

1153

Although not ordered against a convicted person, the Chamber notes the widespread recognition ofsimilar measures as reparations; see e.g., Rainbow Warrior (New Zealand/France), Decision, Arbitral
Tribunal (UNRIAA, vol. XX, p. 217), 30 April 1990, para. 122 (noting the practice of international courts
and tribunals of using satisfaction as a form of reparation (in the wide sense). Satisfaction may consist of an
expression of regret, a formal apology, a declaratory judgment or another appropriate modality. The
appropriate form of satisfaction will depend on the circumstances and cannot be prescribed in advance.);see also UN Draft Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of
Violations of International Human Rights and Humanitarian Law, Annex, UN Doc. E/CN.4/2000/62, 18
January 2000 (including among measures constituting satisfaction to victims apologies, including publicacknowledgement of the facts and acceptance of responsibility).

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4.4.3.5

Requests for measures by the Royal Government of Cambodia

671. Although likely to contribute to the collective and moral reparation of the harmsuffered by victims, these requests fall outside the jurisdiction of the ECCC as they are
not measures which can be satisfied through orders made against KAING Guek Eav.
They are rejected on grounds that the institution of a national commemoration day forvictims and the issuance of official statements of apology fall exclusively within national
governmental prerogatives, which the ECCC has no competence to compel.
4.4.3.6

Requests for the construction of pagodas and other memorials

672. While sympathetic to these requests, the Chamber lacks sufficient specificity
regarding the exact number of memorials sought and their nature, their envisaged
location, or estimated cost. No information has been provided, for example, regarding theidentity of the owners of all proposed sites, whether they consent to the construction ofeach proposed memorial, or whether additional administrative authorisations such asbuilding permits would be necessary to give effect to each measure. As the material
before it does not enable the Chamber to issue an enforceable order against KAING Guek
Eav to pay a fixed or determinable amount in reparation, these requests are rejected.
4.4.3.7

Requests to preserve the S-21 archives, Vann Nath’s paintings
and the S-21 and S-24 sites

673. While acknowledging the significance of preservation efforts in this area, theChamber notes that these requests are not in the form of particularized and quantified
claims that may be readily transformed into orders against KAING Guek Eav. Further,
the Chamber has been provided with no particulars regarding the current legal ownershipof these sites, archives or items, or whether their owners or possessors consent toproposals that they be accessed or altered1154, or the reallocation of revenues derived fromthem to Civil Parties. They are accordingly rejected.

1154

See e.g., “Co-Lawyers for Civil Parties (Group 3) – Final Submission”, E159/5, 11 November 2009,
ERN (English) 00399719 (requesting, amongst other measures, erection of a plaque memorializing thevictims, the construction of a walkway and the engraving of detainee names on the external wall of S-21).

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4.4.3.8

Requests for the provision of access to free medical care andeducational measures

674. Requests of this type – which by their nature are not symbolic but instead designed
to benefit a large number of individual victims – are outside the scope of available
reparations before the ECCC.1155 Provision of free medical care to a large andindeterminate number of victims may purport to impose obligations upon national
healthcare authorities and thus exceed the scope of the ECCC’s competence. The
Chamber is similarly unable to order measures that may impact on national education
policies such as teacher training, salaries, and curriculum development. Even if awards ofthis sort were within the scope of Internal Rule 23(1)(b), proof would be required as tothe link between the measure sought by each claimant and the crimes for which KAING
Guek Eav has been found responsible. No such material has been provided to the
Chamber. Further, the number and identity of all intended beneficiaries of these requests,
the nature of the measures sought and the cost of their provision are neither particularized
nor readily quantifiable within the available resources of the Chamber.
675. Although victim needs in these areas are undisputed, they are inherently incapableof satisfaction through an order against the Accused, and the requests in their current
form cannot provide the basis of enforceable orders against KAING Guek Eav. They areconsequently rejected.

1155

See Internal Rule 23(1)(b).

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5DISPOSITION

676. For the foregoing reasons, having considered all the evidence and the submissionsof the Parties, the Chamber decides as follows:
677. The Chamber finds the Accused GUILTY.pursuant to Articles 5, 6 and 29 (new) of
the ECCC Law of the following crimes committed in Phnom Penh and within the
territory of Cambodia between 17 April 1975 and 6 January 1979:
Crimes against humanity (persecution on political grounds) (subsuming thecrimes against humanity of extermination (encompassing murder), enslavement,
imprisonment, torture (including one instance of rape), and other inhumane acts).

Grave breaches of the Geneva Conventions of 1949, namely:

wilful killing,

torture and inhumane treatment,

wilfully causing great suffering or serious injury to body or health,

wilfully depriving a prisoner of war or civilian of the rights of fair andregular trial, and

unlawful confinement of a civilian.

678. For the reasons given by the Chamber in its Decision on the Preliminary Objection,it has not evaluated the guilt or otherwise of the Accused in respect of national crimes ofpremeditated murder and torture, violations of Articles 501, 506 and 500, respectively, ofthe 1956 Penal Code and punishable before the ECCC pursuant to Article 3 (new) of the
ECCC Law.1156
679. On the basis of the foregoing, the majority of the Chamber (Judge LAVERGNE
dissenting) sentences the Accused to a single sentence of 35 years of imprisonment.

1156

Decision on the Defence Preliminary Objection Concerning the Statute of Limitations of Domestic
Crimes, E187, 26 July 2010.

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680. The Chamber considers that a reduction in the above sentence of 5 years isappropriate given the violation of the Accused’s rights occasioned by his illegal detention
by the Cambodian Military Court between 10 May 1999 and 30 July 2007.
681. The Accused is entitled to credit for the entirety of his time spent in detention, i.e.
from 10 May 1999 to 30 July 2007 (under the authority of the Cambodian Military Court)
and from 31 July 2007 until the Judgement becomes final (under the authority of the
ECCC).1157
682. The Chamber declares all Civil Parties listed in paragraphs 645 and 650 to havesuffered harm as a direct consequence of the crimes for which KAING Guek Eav has
been convicted.
683. The Chamber shall compile all statements of apology and acknowledgements of
responsibility made by KAING Guek Eav during the course of the trial. This compilation
shall be posted on the ECCC’s official website within 14 days of the date of thisjudgement becoming final. It rejects all other Civil Party claims.
684. This judgement, which was pronounced publicly on 26 July 2010, is appealable by
the Parties in accordance with the Internal Rules. Given the gravity of the crimes forwhich he has been convicted, KAING Guek Eav shall remain in detention until thisjudgement becomes final.

1157

See Decision on Request for Release, E39/5, 15 June 2009.

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Done in Khmer, English and French.
Dated this twenty-sixth day of July 2010
At Phnom Penh
Cambodia
Greffiers

LIM Suy Hong

Matteo CRIPPA

SE Kolvuthy

Natacha WEXELS-RISER

DUCH Phary__________________________
Judge NIL Nonn
Presiding__________________________
Judge Silvia CARTWRIGHT________________________
Judge YA Sokhan__________________________
Judge Jean-Marc LAVERGNE________________________
Judge THOU Mony

[Seal of the Tribunal]

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6
6.1
1.

ANNEX I: PROCEDURAL HISTORY

Arrest, Transfer and Detention of the Accused
On 10 May 1999, the Cambodian military authorities arrested and detained the

Accused at the Phnom Penh Military Court Prison. He was indicted by the Cambodian
Military Court for crimes against domestic security and genocide, and subsequently withgenocide, crimes against humanity, war crimes and crimes against internationallyprotected persons.1 His provisional detention, which was extended annually, continued
under the jurisdiction of the Military Court until his transfer to the ECCC.22.

On 30 July 2007, the Accused was detained by order of the Co-Investigating Judgesof the ECCC and transferred to the ECCC Detention Centre. On 31 July 2007, the CoInvestigating Judges issued an order for the provisional detention of the Accused.3 On 3
December 2007, the Pre-Trial Chamber dismissed an appeal lodged by the Defence
against this order.4 The Co-Investigating Judges extended the Accused’s provisional
detention until his appearance before the Trial Chamber.5 This decision was confirmed by
the Pre-Trial Chamber.6
3.

On 1 April 2009, the Defence challenged the lawfulness of the Accused’s

provisional detention and requested his release for the duration of the trial.7 On 15 June
2009, the Trial Chamber denied the Defence request, and ordered that the Accused

1

Introductory Submission (entitled “Indictment”), E52/4.3, 10 May 1999; “Detention Order”, E52/4.8,
10 May 1999; Introductory Submission (entitled “Order to Forward Case for Investigation”), E52/4.26, 6September 1999; “Detention Order”, E52/4.22, 10 September 1999; see also Second Introductory
Submission (entitled “Second Order to Forward Case for Investigation”), E52/4.9, 10 May 1999; “Decision
on Extension of Judicial Investigation”, E52/4.34, 18 May 2000; “Decision on Extension of Judicial
Investigation, E52/4.46, 15 May 2001.
2”Detention Order Duch”, E52/4.47, 22 February 2002; E52/4.48, 22 February 2003; E52/4.54, 22
February 2004; E52/4.57, 28 February 2005; E52/4.60, 28 February 2006; “Detention Order”, E52/4.63, 28
February 2007; see also “Decision on Extension of Judicial Investigation”, E52/4.52, 20 February 2004.
3“Arrest Warrant”, C1, 30 July 2007; “Detention Order”, C4/2, 31 July 2007; “Order of Provisional
Detention”, C3/10, 31 July 2007.
4“Decision on Appeal against Provisional Detention Order of Kaing Guek Eav alias ‘Duch’”, C5/45, 3
December 2007.
5“Order on extension of provisional detention”, C3/II, 28 July 2008.
6“Detention Order”, D99/3/43, 5 December 2008.
7“Written Record of Proceedings – 1 April 2009”, E1/7.

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remain in provisional detention for the duration of the trial.8 However, the Chamber
found that the Accused’s prior detention before the Military Court constituted a violationof applicable Cambodian domestic law and internationally recognised fair trial rights. It
declared that if convicted, the Accused would be entitled to a reduction in sentence, to be
determined at the sentencing stage, as a remedy for these violations.9 The Chamber
further declared that in calculating the length of any sentence to be served, the Accused
would be entitled to credit for the entirety of the time spent in detention from 10 May
1999 onwards.10
6.2

Investigation Phase
6.2.1 Preliminary investigation

4.

The Co-Prosecutors initiated a preliminary investigation on 10 July 2006.11 On 18

July 2007, they filed an Introductory Submission with the Co-Investigating Judges, thus
opening a judicial investigation against five suspects, including the Accused.12
6.2.2 Initial appearance and charges
5.

The initial appearance of the Accused before the Co-Investigating Judges took place

on 31 July 2007. The Accused was notified that he was under judicial investigation for
the facts alleged in the Introductory Submission and was charged with crimes against
humanity, and subsequently with grave breaches of the Geneva Conventions of 1949.13

8

Decision on Request for Release, E39/5, 15 June 2009, paras 9-14, 22-26; “Written Record ofProceedings – 15 June 2009”, E1/32.
9
Decision on Request for Release, E39/5, 15 June 2009, paras 34-36.
10
Decision on Request for Release, E39/5, 15 June 2009, paras 27-29.
11
Amended Closing Order, para. 4.
12“Introductory Submission”, D3, 18 July 2007.
13“Written Record of Initial Appearance”, D7, 31 July 2007; “Written Record of Interview of Charged
Person”, D20, 2 October 2007.

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6.2.3 Separation Order6.

On 19 September 2007, the Co-Investigating Judges ordered the separation of theCase File of the Accused in relation to facts concerning S-21. These were investigatedunder Case File number 001/18-07-2007 and comprise the present case.14
6.2.4 Conclusion of investigation and Closing Order7.

On 15 May 2008, the Co-Investigating Judges notified the Parties pursuant toInternal Rule 66(1) that they considered their investigation to be concluded.15 Pursuant toInternal Rule 66(4), the Co-Investigating Judges forwarded the Case File to the Office of
the Co-Prosecutors on 23 June 2008.16 On 18 July 2008, the Co-Prosecutors filed their
Final Submission and the Defence their response on 24 July 2008.17
8.

On 8 August 2008, the Co-Investigating Judges issued the Closing Order, indicting

the Accused for the crimes against humanity of imprisonment, enslavement, torture, rape,
murder, extermination, persecution and other inhumane acts and for the following grave
breaches of the Geneva Conventions of 1949: unlawful confinement of a civilian,
wilfully depriving rights to a fair trial, wilfully causing great suffering, torture andinhumane treatment, and wilful killing.
6.3

Appeal of the Closing Order
6.3.1 Co-Prosecutors’ Appeal

9.

On 21 August 2008, the Co-Prosecutors appealed the Closing Order to the Pre-Trial

Chamber, alleging that the Co-Investigating Judges erred by failing to indict the Accused

14“Separation Order”, D18, 19 September 2007. All other facts related to all suspects mentioned in the
Introductory Submission were investigated under Case File number 002/19-09-2007.
15“Notice of Conclusion of Judicial Investigation”, D89, 15 May 2008.
16“Forwarding Order”, D95, 23 June 2008.
17“Rule 66 Final Submission Regarding Kaing Guek Eav alias ‘Duch’”, D96, 18 July 2008; “Responseof Kaing Guek Eav’s Defence Team to the Prosecutor’s Final Submission”, D96/1, 24 July 2008.

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for the domestic crimes of homicide and torture under the 1956 Cambodian Penal Code,and for the commission of crimes through participation in a joint criminal enterprise.18
6.3.2 Pre-Trial Chamber Decision
10. On 5 December 2008, the Pre-Trial Chamber issued its decision on the CoProsecutors’ appeal against the Closing Order. The Pre-Trial Chamber concluded that thedomestic crimes of torture and homicide, punishable under Article 3 of the ECCC Law
and Articles 500, 501 and 506 of the 1956 Penal Code, contained distinct elements notpresent in the international crimes of murder and torture. As these offences were notsubsumed by the international crimes, the Pre-Trial Chamber added these charges to theAmended Closing Order.19 The Pre-Trial Chamber further concluded that although thefacts in the Closing Order suggested co-perpetration of the acts committed within S-21,
participation in a joint criminal enterprise did not form part of the factual basis for theinvestigation. As the Accused was not informed about his alleged participation in a joint
criminal enterprise prior to the Final Submission, the Chamber declined to charge the
Accused with this form of responsibility in the Closing Order.20 The effect of thisdecision was to remit the Accused for trial pursuant to the Amended Closing Order.
6.4

Civil Parties
6.4.1 Joining of Civil Parties

11. A number of individuals applied to join Case 001 as Civil Parties. Twenty-eight
applicants joined during the investigative phase, with a further sixty-six applying to join
during the trial proceedings prior to the 2 February 2009 deadline.21 Four of theseapplications were subsequently withdrawn or rejected.22 Accordingly, a total of 90 Civil
18“Record of Appeals”, D99/3, 21 August 2008; “Co-Prosecutors’ Appeal of the Closing Order against
Kaing Guek Eav ‘Duch’”, D99/3/3, 5 September 2008.
19“Decision on Appeal against Closing Order Indicting Kaing Guek Eav Alias ‘Duch’”, D99/3/42, 5
December 2008, paras 72, 84, 99-101, 103, 107.
20
“Decision on Appeal against Closing Order Indicting Kaing Guek Eav Alias ‘Duch’”, D99/3/42, 5
December 2008, paras 125, 141.
21
Amended Closing Order, para. 6.
22
Decision on the Civil Party Status of Applicants E2/36, E2/51 and E2/69, E2/94/2, 4 March 2009;
Decision on Request to Extend Deadline for the Filing of Civil Party Applications, E2/92/2, 10 March

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Parties participated in the trial proceedings of Case 001. The Civil Parties were organised
into four groups, each represented by their own counsel.
6.4.2 Hearing of Civil Parties
12. On 30 April 2009, following requests by the Civil Parties to be heard at trial, theTrial Chamber agreed to hear seven Civil Parties alleged to be former S-21 detainees
during the trial segment concerning the functioning of S-21. 15 Civil Parties were heard
between 17 and 24 August 2009. 23
6.5

Trial Proceedings
6.5.1 Trial preparation and initial hearing

13. Prior to and during trial proceedings, the Trial Chamber held several Trial
Management Meetings. These meetings, held in closed session, assisted the Chamber inthe management of numerous trial-related procedural matters. 24
14. The initial hearing took place on 17 and 18 February 2009. Amongst other things,
this hearing considered the Preliminary Objection raised by Defence, the Co-Prosecutors’
motion to file new evidence, protective measures, and the admissibility of Civil Party
applications. Further, the Chamber sought clarification on the intention of the CoProsecutors and the Defence to raise certain issues during the trial, and also reviewed

2009; “CPG3: Lettre d'abandon de Droit de la Constitution de la Partie Civile au près des Chambres
Extraordinaires au sein des Tribunaux Cambodgiens”, E2/65/5, 15 September 2009; Decision on Request toExtend Deadline for the Filing of Civil Party Applications, E2/92/2, 10 March 2009 (rejecting, for lack of
substantiation, request of Civil Party Group 1 to belatedly admit the Civil Party application of Norng
Chanphal (E2/92)). NORNG Chanphal later testified before the Chamber as a witness (T., 2 July 2009).
23
Decision Concerning the Scheduling of the Hearing of Civil Parties During the Substantive Hearing,E57, 30 April 2009. 28 Civil Parties initially requested to be heard. This number was subsequently reduced
to 22 after 6 Civil Parties declined or were unavailable to be heard by the Chamber; see Written Record ofProceedings – 06 July 2009, 11-12 August 2009, 18 August 2009, 20 August 2009 and 24 August 2009,
comprising documents E1/43, E1/61, E1/64, E1/66 and E1/67; see also Written Record of Proceedings, 1720 August 2009 and 24 August 2009, comprising documents E1/63 to E/67..
24
Trial Management Meetings were held on 15 and 16 January, 11 June and 23 June 2009, respectively.

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progress on agreed facts and the finalization of witness lists.25 The Chamber also decided
during this hearing to call a number of witnesses and experts to be heard during trial.26
6.5.2 Preliminary Objection
15. On 28 January 2009, the Defence filed a preliminary objection alleging thatprosecution of the Accused for the domestic crimes of murder and torture pursuant to
Articles 500, 501 and 506 of the 1956 Penal Code was barred because the applicable
limitation period had expired.27 The Trial Chamber indicated that it would issue its
decision on the preliminary objection at the same time as the judgement on the merits.28
6.5.3 Substantive hearing
16. Pursuant to the Trial Chamber’s “Direction on the Scheduling of the Trial”, thesubstantive hearing was divided into seven different segments:
i.
ii.
iii.
iv.
v.
vi.

Issues relating to M-13;
Establishment of S-21 and the Takmao prison;
Implementation of CPK policy at S-21;
Armed conflict;
Functioning of S-21 including Choeung Ek,
Establishment and functioning of S-24; and25“Written Record of Proceedings – 17 and 18 February 2009, E1/3 and E1/4; see also “Agenda for
Initial Hearing”, E8/1, 13 February 2009; Direction Requesting Additional Information from the Parties
and Co-Investigating Judges in Preparation of the Initial Hearing, E5/11, 5 February 2009.
26“Written Record of Proceedings – 17 and 18 February 2009, E1/3 and E1/4. At various stages during
trial, the Chamber issued additional decisions removing from this list several witnesses and experts; see e.g.
Decision on Protective Measures for Witnesses and Experts and on Parties' Requests to Hear Witnesses andExperts: Reasons, E40/1, 10 April 2009; Decision on Protective Measures for Civil Parties E2/62 andE2/89 and for Witnesses KW-10 and KW-24, E135, 7 August 2009; and “Written Record of Proceedings –29 June 2009, 6 July 2009, 16 July 2009, 27 August 2009 and 15 September 2009, comprising documents
E1/39, E1/43, E1/50, E1/70 and E1/75.
27“Preliminary Objection Concerning Termination of Prosecution of Domestic Crimes”, E9/1, 28
January 2009; “Co-Prosecutors' Written Response to the Defence's Preliminary Objection to theApplicability of the 1956 Cambodian Penal Code”, E9/7, 18 May 2009; “Group 1 – Civil Parties' CoLawyers' Submission on the Preliminary Objection” E9/5, 18 May 2009; “Submission of Co-Lawyers for
Civil Parties – Group 2 – on the, Preliminary Objection Concerning Termination of Prosecution ofDomestic Crimes”, E9/8, 18 May 2009; “Response (Group 3) to the Preliminary Objection Concerning
Expiry of the Statute of Limitations for Domestic Crimes”, E9/6, 18 May 2009; “Conclusion Écrites
Concernant L'Exception Préliminaire Soulevée Par La Défense”, E9/9, 18 May 2009.
28
Decision on the Defence Preliminary Objection Concerning the Statute of Limitations of Domestic
Crimes, ECCC Trial Chamber, E/187, 26 July 2010.

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vii.

Issues relating to the character of the Accused.29

17. On 30 March 2009, the substantive hearing commenced with the reading of parts ofthe factual analysis in the Amended Closing Order and of the charges against the
Accused.30 Opening statements by the Co-Prosecutors, followed by the Accused and his
Defence co-lawyers, took place on 31 March 2009.31
18. On 31 March 2009, the Co-Prosecutors informed the Trial Chamber that the
Defence either agreed with or did not dispute 238 of the 351 proposed facts alleged in the
Amended Closing Order.32 As directed by the Trial Chamber, the Co-Prosecutors readthese facts in court. 33
19. At trial, the Trial Chamber heard testimony from 9 experts and 24 witnesses,
including 7 character witnesses. In addition to the 22 Civil Parties heard during thecourse of trial, the records of interviews of a number of witnesses were read out on 4, 5,
11 and 12 August 2009. The Chamber invited the Parties to make observations on eachstatement.34

29

Direction on the Scheduling of the Trial, E26, 23 March 2009.
“Written Record of Proceedings – 30 March 2009”, E1/5; see also “Order Scheduling the Start of the
Substantive Hearing and Sitting Days for First Three Months”, E15, 23 February 2009.
31“Written Record of Proceedings – 31 March 2009”, E1/6; Direction on making a brief Opening
Statement during the Substantive Hearing, E19, 10 March 2009. On 27 March 2009, the Trial Chamber
rejected the request of the Co-Lawyers for the Civil Parties to submit an opening statement; see Decisionon the Request of the Co-Lawyers for Civil Parties Group 2 to Make an Opening Statement During theSubstantive Hearing, E23/4, 27 March 2009.
32“Written Record of Proceedings – 31 March 2009”, E1/6; “Response to Direction Requesting
Additional Information from the Parties and Co-Investigating Judges in Preparation of the Initial Hearing”,
E5/11/1, 10 February 2009; “Response of the Co-Prosecutors Regarding Agreement on Facts”, E5/11/2, 11
February 2009; see also, “Defence Position on the facts contained in the Closing Order”, E5/11/6.1, 1 April
2009; “Defence's explanation concerning the document entitled ‘Defence's Position on the facts containedin the Closing Order’”, E5/11/6, 1 April 2009.
33“Written Record of Proceedings – 01 April 2009”, E1/7.
34
The records of interviews of the following witnesses were read in court: Khieu Ches (E3/456), Pes
Math (E3/457), Nhem En (E3/458), Nhep Hau (E3/460), Kung Phai (E3/461, E3/462, E3/396, E3/244),
Makk Sithim (E3/484, E3/396), Tay Teng (E3/485, E3/486, E3/218, E3/242), Soam Sam Ol (E3/487),
Meas Pengkry (E3/446, E3/242, E3/218), Uk Bunseng (E3/490), Horn (Hân) Iem (E3/491), Phach Siek
(E3/495), Kaing Pan (E3/496), and (in summary form) Chey Sopheara (E3/488); see “Written Record ofProceedings – 4, 5, 11 and 12 August 2009,” comprising documents E1/57, E1/58, E1/61 and E1/62.
30

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6.5.4 Other relevant issues
6.5.4.1

Co-Prosecutors’ Motion Regarding Joint Criminal Enterprise

20. On 8 June 2009, the Co-Prosecutors requested the Chamber to declare the notion of
Joint Criminal Enterprise to be applicable before the ECCC, and to apply it in relation to
the commission of the crimes charged against the Accused.35 The Chamber recalled that
the Co-Prosecutors had expressed their intention to rely on the notion of Joint Criminal
Enterprise during the initial hearing and indicated that it considered the issue to be live
before the Chamber.36 Following submissions by the Parties, the Trial Chamber indicatedthat it would issue its decision on this matter with the judgement on the merits.37
6.5.4.2

Civil Party Motion Regarding Submissions on Sentencing and on
Character of the Accused

21. On 27 August 2009, following a joint Civil Party request, the Trial Chamberdelivered two oral decisions, by a majority (Judge LAVERGNE dissenting in part).38 The
Chamber decided that the Civil Party lawyers lacked standing to make submissions on
sentencing, including submissions on a sentence to be imposed, submissions relevant tosentencing.39 The Trial Chamber also denied the Civil Parties’ request to put questions
relevant to the Accused’s character to the Accused, two experts and nine witnesses.40

35“Co-Prosecutors' Request for the Application of Joint Criminal Enterprise”, E73, 8 June 2009.
“Written Record of Proceedings – 29 June 2009”, E1/39.
37“Civil Party Group 1 – Notification Pursuant to the Co-Prosecutors' Request for Application Joint
Criminal Enterprise”, E73/1, 30 June 2009; “Civil Parties Group 3 – Brief in Support of the CoProsecutors' Request for the Application of the Joint Criminal Enterprise Theory in the Present Case”,
E73/3, 16 September 2009; “Defence Response to the Co-Prosecutors' Request for the Application of the
Joint Criminal Enterprise Theory in the Present Case”, E73/2, 17 September 2009.
38“Groups 1 and 2 – Civil Parties' Co-Lawyers' Joint Request for a Ruling on the Standing of Civil Party
Lawyers to Make Submissions on Sentencing”, E72, 9 June 2009.
39
The Civil Party lawyers were permitted to refer to such factors only when referring to the guilt or
innocence of the Accused or to a Civil Party claim for reparation; see “Written Record of Proceedings – 27
August 2009”, E1/70; see also Decision on Civil Party Co-Lawyers’ Joint Request for a Ruling on theStanding of Civil Party Lawyers to Make Submissions on Sentencing and Directions Concerning theQuestioning of the Accused, Experts and Witnesses Testifying on Character, E72/3, 12 October 2009.
40“Written Record of Proceedings – 27 August 2009”, E1/70; Decision on Civil Party co-lawyers’ joint
request for a ruling on the standing of Civil Party lawyers to make submissions on sentencing anddirections concerning the questioning of the accused, experts and witnesses testifying on character, E72/3,
12 October 2009.
36

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22. On 1 and 25 September 2009 respectively, Civil Party Groups 3 and 2 appealed bothdecisions of the Trial Chamber.41 On 24 December 2009, the Supreme Court Chamberdeclared these appeals inadmissible pursuant to Internal Rule 104(4).42
6.5.5 Closing statements
23. On 17 September 2009, the Civil Parties filed written submissions stipulating theforms of collective and moral reparations sought against the Accused, if convicted.43
24. Between 23 and 27 November 2009, the Parties presented their closing statements.44
Following his closing statement, the Accused orally requested that the written version of
his statement be put on file, which request the Trial Chamber granted.45
25. The Civil Parties’ co-lawyers and the Co-Prosecutors presented rebuttal statements
on 26 and 27 November 2009, to which the Defence responded on 27 November 2009.46
26. The Accused made his final statement on 27 November 2009. Althoughacknowledging his responsibility for the crimes committed, the Accused requested
acquittal and release. Following the conclusion of closing statements, the President
declared the trial proceedings closed. 47

41“CPG3 – Declaration d'Appel”, E162, 1 September 2009; “Appeal of Co-Lawyers for Civil Parties(Group 2) Against Trial Chamber's Decisions to Exclude Civil Party Lawyers from Questioning the
Accused, Witnesses and Experts on the Accused's Character and to Exclude Civil Parties from Submissions
on Sentencing”, E169, 25 September 2009.
42
Decision on the Appeals Filed by Lawyers for Civil Parties (Groups 2 and 3) Against the Trial
Chamber’s Oral Decision of 27 August 2009, E169/1/2, 24 December 2009.
43“Civil Parties' Co-Lawyers’ Joint Submission on Reparations”, E159/3, 17 September 2009; “CPG3 –Mémoire Additionnel Concernant la Réparation”, E159/3/1, 17 September 2009.
44
See “Written Record of Proceedings – 23-26 November 2009, comprising documents E1/78 to E/81;
see also “Scheduling Order for Closing Statements”, E170, 30 September 2009; “Civil Party Group 1 –Final Submission”, E159/7, 10 November 2009; “Co-Lawyers’ for Civil Parties (Group 2) – Final
Submission”, E159/6, 10 November 2009; “Civil Parties (Group 4) – Final Written Submission”, E159/4,
10 November 2009; “Co-Lawyers for Civil Parties (Group 3) – Final Submission”, E159/5, 11 November
2009; “Co-Prosecutors' Final Trial Submission with Annexes 1-5”, E159/9, 11 November 2009; “Final
Defence Written Submissions” E159/8, 11 November 2009; Direction on Proceedings Relevant toReparations and on the Filing of Final Written Submissions, E159, 27 August 2009.
45“Accused's Final Written Submission”, E159/10, 25 November 2009; “Written Record of Proceedings– 25 November 2009”, E1/80.
46“Written Record of Proceedings – 26 and 27 November 2009”, documents E1/81 and E1/82.
47“Written Record of Proceedings – 27 November 2009”, E1/82.

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6.5.6 Subsequent proceedings
27. The Parties were subsequently given the opportunity to make written submissions
on the impact, if any, of the new 2009 Penal Code, which entered into force after theclosing statements. None of the parties availed themselves of this opportunity.48
28. The Chamber delivered its verdict and filed the written judgement on 26 July 2010. It
sentenced the Accused to 35 years of imprisonment based on convictions for the crime
against humanity of persecution (extermination (encompassing murder), enslavement,
imprisonment, torture (including one instance of rape) and other inhumane acts) as well
as for grave breaches of the Geneva Conventions of 1949 (wilful killing, torture andinhumane treatment, wilfully causing great suffering or serious injury to body or health,wilfully depriving a prisoner of war or civilian of the rights of fair and regular trial, andunlawful confinement of a civilian).

48“Order Relevant to the 2009 Penal Code of Cambodia”, E180/1, 4 February 2010.

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7

ANNEX II: AERIAL VIEW OF THE S-21 COMPLEX“Aerial Photograph of Tuol Sleng Genocide Museum”, E3/16, ERN (Khmer, French andEnglish) 00189137.

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8ANNEX III: LIST OF CIVIL PARTIES

Pseudonym Full Name

Place ofDate ofResidence
Birth[[Redacted]] [[Redacted]]

Place ofOccupation
Birth[Redacted] [Redacted]

D25/1

Mr. BOU Meng

D25/2

Ms. CHHIN
Navy[Redacted][Redacted][Redacted] [Redacted]

D25/3

Mr. CHUM
Mey[Redacted][Redacted][Redacted] [Redacted]

D25/4

Ms. HAV
Sophea[Redacted][Redacted][Redacted] [Redacted]

D25/5

Ms. PHUNG
Guth Sunthary[Redacted][Redacted][Redacted] [Redacted]

D25/6

Mr. CHUM
Sirath[Redacted][Redacted][Redacted] [Redacted]

D25/7

Ms. IM Sunthy[Redacted][Redacted][Redacted] [Redacted]

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D25/8

Ms.
MEASKETH
Sanphotre[Redacted][Redacted][Redacted] [Redacted]

D25/9

Ms. ROS Men[Redacted][Redacted][Redacted] [Redacted]

D25/10Mr. CHE Heap

[Redacted][Redacted][Redacted] [Redacted]

D25/11

Mr. KHUON
Sarin[Redacted][Redacted][Redacted] [Redacted]

D25/12

Mr. CHRAING
Sam-Ean[Redacted][Redacted][Redacted] [Redacted]

D25/13Mr. SEANG
Vanndi[Redacted][Redacted][Redacted] [Redacted]

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D25/14

Mr. TOCH
Monin[Redacted][Redacted][Redacted] [Redacted]

D25/15

Mr. SUON
Seang[Redacted][Redacted][Redacted] [Redacted]

D25/16

Ms. CHUM
Neou[Redacted][Redacted][Redacted] [Redacted]

D25/17

Ms. KAUN
Sunthara[Redacted][Redacted][Redacted] [Redacted]

D25/18Mr. MAN Saut

[Redacted][Redacted][Redacted] [Redacted]

D25/19Ms. KONG Teis [Redacted][Redacted][Redacted] [Redacted]

D25/20

Ms. NGETH
Sok[Redacted][Redacted] [Redacted][Redacted]

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D25/21

Mr. TATH Lorn

[Redacted][Redacted][Redacted] [Redacted]

D25/22

Mr. Timothy
Scott DEEDS[Redacted][Redacted][Redacted] [Redacted]

D25/23

Mr. YIM Leng

[Redacted][Redacted][Redacted] Farmer

D25/24

Mr. UM Pyseth(successor of
Ms. SUOS
Sarin, deceased)[Redacted][Redacted][Redacted] [Redacted]

D25/25

Mr. KE Khon

[Redacted][Redacted][Redacted] [Redacted]

D25/26

Ms. KIMARI
Nevinka[Redacted][Redacted][Redacted] [Redacted]

D25/27

Ms.TIOULONG [Redacted]
Antonya[Redacted][Redacted] [Redacted]

D25/28

Ms.
[Redacted]
TIOULONG ROHMER Neva
Ms. IEM Soy[Redacted][Redacted][Redacted] [Redacted][Redacted][Redacted] [Redacted]

E2/21

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E2/22

Mr. CHHOEM
Sitha[Redacted][Redacted][Redacted] [Redacted]

E2/23

Mr. LAY Chan

[Redacted][Redacted][Redacted] [Redacted]

E2/24

Ms. UL Say
alias Riem

[Redacted][Redacted][Redacted] [Redacted]

E2/25

Mr. SIN Lim
Sea[Redacted][Redacted][Redacted] [Redacted]

E2/26

Mr. OU Savrith[Redacted][Redacted][Redacted] [Redacted]

E2/27

Ms. OU Kamela[Redacted][Redacted][Redacted] [Redacted]

E2/28

Ms. ROS Chuor
Siy[Redacted][Redacted][Redacted] [Redacted]

E2/29

Ms. KIMARI
Visaka[Redacted][Redacted][Redacted] [Redacted]

E2/30

Ms. NHOEM[Redacted][Redacted][Redacted] [Redacted]

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Kim Hoeurn

E2/31

Ms. NHEK OU
Davy[Redacted][Redacted][Redacted] [Redacted]

E2/32

Ms. NAM Mon[Redacted][Redacted][Redacted] [Redacted]

E2/33

Mr. PHAOK
Khan[Redacted][Redacted][Redacted] [Redacted]

E2/34

Ms. SO Saung[Redacted][Redacted][Redacted] [Redacted]

E2/35

Ms. CHHAY
Kan alias
LIENG Kan

[Redacted][Redacted][Redacted] [Redacted]

E2/37

Mr. KLAN Fit[Redacted][Redacted][Redacted] [Redacted]

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E2/38

Mr. HIET Tey
Chov[Redacted][Redacted][Redacted] [Redacted]

E2/39

Ms. SUON
Sokhomaly[Redacted][Redacted][Redacted] [Redacted]

E2/41

Ms. SIN Sinet
alias Srun

[Redacted][Redacted][Redacted] [Redacted]

E2/42

Ms. ROUN
Sreynob[Redacted][Redacted][Redacted] [Redacted]

E2/43

Ms. EL Li Mah[Redacted][Redacted][Redacted] [Redacted]

E2/44

Ms. SMAN Nob [Redacted][Redacted][Redacted] [Redacted]

E2/45

Ms. SMAN Sar[Redacted][Redacted] [Redacted][Redacted]

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E2/46

Ms. KE Samaut[Redacted][Redacted][Redacted] [Redacted]

E2/47

Ms. MEN Lay

[Redacted][Redacted][Redacted] [Redacted]

E2/48

Ms. NHEM
Sophan[Redacted][Redacted][Redacted] [Redacted]

E2/50

Mr. NETH
Phally[Redacted][Redacted][Redacted] [Redacted]

E2/51

Ms. MAN Mas
alias MAN
Malymas[Redacted][Redacted][Redacted] [Redacted]

E2/52

Ms. KOM Men [Redacted]
alias KUM Men[Redacted][Redacted] [Redacted]

E2/53

Ms. TRY Ngech [Redacted]
Leang[Redacted][Redacted] [Redacted]

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E2/54

Ms. HENG
Ngech Hong

[Redacted][Redacted][Redacted] [Redacted]

E2/55

Mr. BENG
Chanthorn[Redacted][Redacted][Redacted] [Redacted]

E2/56

Mr. YUN
Chhoeun[Redacted][Redacted][Redacted] [Redacted]

E2/57

Mr. LY Khiek[Redacted][Redacted][Redacted] [Redacted]

E2/58

Mr. PUOL
Punloek alias
Nget[Redacted][Redacted][Redacted] [Redacted]

E2/59

Mr. CHANN
Krouch[Redacted][Redacted][Redacted] [Redacted]

E2/60

Ms. NORNG
Kim Leang[Redacted][Redacted][Redacted] [Redacted]

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E2/61

Mr. LY Hor[Redacted][Redacted][Redacted] [Redacted]

E2/62[Redacted][Redacted][Redacted][Redacted] [Redacted]

E2/63

Ms. PANN Pech [Redacted][Redacted][Redacted] [Redacted]

E2/64

Ms. NHEB
Kimsrea[Redacted][Redacted][Redacted] [Redacted]

E2/66

Ms. PENH
Sokkhun[Redacted][Redacted][Redacted] [Redacted]

E2/69

Ms. LIM Yon[Redacted][Redacted][Redacted] [Redacted]

E2/70

Ms. CHAN
Yoeurng[Redacted][Redacted][Redacted] [Redacted]

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E2/71

Ms. SOEM Pov[Redacted][Redacted][Redacted] [Redacted]

E2/72

Ms. KAN San[Redacted][Redacted][Redacted] [Redacted]

E2/73

Mr. NORNG
Sarath alias Por[Redacted][Redacted][Redacted] [Redacted]

E2/74

Ms. NGET Uy[Redacted][Redacted][Redacted] [Redacted]

E2/75

Ms. THIEVNeab alias
KHIEV Neab[Redacted][Redacted][Redacted] [Redacted]

E2/76

Ms. UNG
Voeurn alias
HUL Voeurn[Redacted][Redacted][Redacted] [Redacted]

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E2/78

Ms. MEAS
Saroeurn[Redacted][Redacted][Redacted] [Redacted]

E2/79

Ms. SEK Siek

[Redacted][Redacted][Redacted] [Redacted]

E2/80

Ms. CHIN Met[Redacted][Redacted][Redacted] [Redacted]

E2/81

Mr. CHHATKim Chhun[Redacted][Redacted][Redacted] [Redacted]

E2/82

Mr. MORN
Sothea[Redacted][Redacted][Redacted] [Redacted]

E2/83

Ms. HONG
Savath[Redacted][Redacted][Redacted] [Redacted]

E2/84

Mr. UK
Vasorthin[Redacted][Redacted][Redacted] [Redacted]

E2/85

Ms. Martine
LEFEUVRE[Redacted][Redacted][Redacted] [Redacted]

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E2/86

Mr. Jeffrey
JAMES[Redacted][Redacted][Redacted] [Redacted]

E2/87

Mr. Robert
HAMILL[Redacted][Redacted][Redacted] [Redacted]

E2/88

Mr. Joshua
ROTHSCHILD[Redacted][Redacted][Redacted] [Redacted]

E2/89

Miss. OUKNeary[Redacted][Redacted][Redacted] [Redacted]

CIVIL PARTY APPLICATIONS WITHDRAWNDURING THE COURSE OF TRIAL
E2/49

Mr. ENG Sitha[Redacted][Redacted][Redacted] [Redacted]

E2/65

Ms. BUN Srey

[Redacted][Redacted][Redacted] [Redacted]

E2/77

Ms. KEANG
Vannary[Redacted][Redacted][Redacted] [Redacted]

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9ANNEX IV: GLOSSSARY AND LIST OF ABBREVIATIONS

1956 Penal Code1993 (SOC) Code of
Criminal Procedure

1993 Constitution of
the Kingdom of
Cambodia2007 Code of Criminal
Procedure
2009 Penal CodeAccusedCriminal Code of the Kingdom of Cambodia (1956),
promulgated on 21 February 1955 by the King (Kram no.
933NS); Kingdom of Cambodia, Recueil Judiciaire,
Special Edition, 1956, pp. 11-403
Law on Criminal Procedure, 8 March 1993, adopted by the
National Assembly of the State of Cambodia on 28
January 1993, promulgated by Decree No. 21 on 8 March
1993.
Constitution of the Kingdom of Cambodia (1993), adopted
by the Constitutional Assembly and signed by the
President on 21 September 1993.
Code of Criminal Procedure of the Kingdom of Cambodia,
promulgated by the King on 10 August 2007.
Criminal Code of the Kingdom of Cambodia, promulgatedby the King on 30 November 2009 (Part I directly in force;the other parts of the Code in force one year after
promulgation).
Kaing Guek Eav alias Duch

Accused JCE Response Defence Response to the Co-Prosecutors’ Request for the
Application of the Joint Criminal Enterprise Theory in the
Present Case”, E73/2, 17 September 2009
Additional Protocol I

Protocol Additional to the Geneva Conventions of 12
August 1949, and Relating to the Protection of Victims ofInternational Armed Conflict, 8 June 1977, 1125 UNTS 3,
entered into force 7 December 1978

Amended Closing
Order

Closing Order indicting Kaing Guek Eav alias Duch, D99,
8 August 2008, as amended by the Pre-Trial Chamber’s
Decision on Appeal Against the Closing Order, dated 5
December 2008

cf

compareChamber

Trial Chamber of the Extraordinary Chambers in the
Courts of Cambodia

Civil Parties

90 individuals who participated in the trial proceedings as
Civil Parties, organised into four Civil Party groups

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Closing Order

Closing Order indicting Kaing Guek Eav alias Duch, D99,
8 August 2008

Common Article 2

Article 2 common to the four Geneva Conventions of 12
August 1949

Control Council Law
No. 10Control Council Law 10: Punishment of Persons Guilty of
War Crimes, Crimes Against Peace, signed in Berlin, 20
December 1945, published in (1946) 3 Official Gazette
Control Council for Germany at 50-55

CPK

Communist Party of Kampuchea

CPK StatuteCommunist Party of Kampuchea: Statute, E3/28, January
1976

DC-CamDocumentation Center of Cambodia, a Cambodian NonGovernmental Organization.

Defence

Defence for the Accused

DK

Democratic Kampuchea

DK Constitution

Constitution of Democratic Kampuchea, E3/27, 5 January
1976

e.g.

for example

ECCC

Extraordinary Chambers in the Courts of Cambodia

ECCC Agreement

Agreement Between the United Nations and the Royal
Government of Cambodia Concerning the Prosecution
under Cambodia Law of Crimes Committed During the
Period of Democratic Kampuchea, signed 6 June 2003 andentered into force on 29 April 2005

ECCC Law

Law on the Establishment of Extraordinary Chambers in
the Courts of Cambodia for the Prosecution of Crimes
Committed During the Period of Democratic Kampuchea,
10 August 2001 with inclusion of amendments as
promulgated on 27 October 2004 (NS/RKM/1004/006)

ECHR

European Convention on Human Rights and Fundamental
Freedoms

ERN

Evidence Reference Number

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fn.

footnote

FULRO

United Front for the Liberation of the Oppressed Races

Geneva Convention I

Geneva Convention for the Amelioration of the Conditionof the Wounded and Sick in Armed Forces in the Field, 75
UNTS 31, entered into force 21 October 1950

Geneva Convention II

Geneva Convention for the Amelioration of the Conditionof Wounded, Sick and Shipwrecked Members of Armed
Forces at Sea, 75 UNTS 85, entered into force 21 October
1950

Geneva Convention III

Geneva Convention III Relative to the Treatment of
Prisoners of War of 12 August 1949, 75 UNTS 135,
entered into force 21 October 1950

Geneva Convention IV

Geneva Convention IV Relative to the Protection of
Civilian Persons in Time of War of 12 August 1949, 75
UNTS 287, entered into force 21 October 1950

Geneva Conventions

The four Geneva Conventions of 1949 dated 12 August
1949

ICC

International Criminal Court

ICCPRInternational Covenant on Civil and Political Rights, 999
UNTS 171, entered into force 23 March 1976

ICRC

International Committee of the Red Cross

ICTRInternational Criminal Tribunal for the Prosecution of
Persons Responsible for Genocide and Other Serious
Violations of International Humanitarian Law Committed
in the Territory of Rwanda and Rwandan Citizens
Responsible for Genocide and Other Such Violations
Committed in the Territory of Neighbouring States,
between 1 January 1994 and 31 December 1994

ICTY

International Tribunal for the Prosecution of Persons
Responsible for Serious Violations of International
Humanitarian Law Committed in the Territory of theFormer Yugoslavia since 1991

infra

below

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Internal Rules

ECCC Internal Rules, fourth revision of 11 September
2009, entered into force on 21 September 2009

JCE

Joint Criminal Enterprise

KNUFNS

Kampuchean National United Front for National Salvation

KPNLAF

Kampuchea People’s National Liberation Armed Forces

KPRA

Kampuchean People’s Representative Assembly

KRA

Khmer Republic Army

M-13

Security centre in the Kampong Speu province

n/a

not applicableno.

numberNuremberg Charter

Charter of the International Military Tribunal for the Trialof the Major War Criminals - Annex to the Agreement forthe prosecution and punishment of the major war criminalsof the European Axis ("London Agreement”), of 8 August
1945, 82 UNTC 280

Nuremberg Principles

Principles of International Law Recognized in the Charterof the Nuremberg Tribunal and in the Judgement of the
Tribunal

Nuremberg Tribunal

International Military Tribunal for the Trial of the Major
War Criminals

OCP

Office of the Co-Prosecutors

OCP JCE Request

Co-Prosecutors' Request for the Application of Joint
Criminal Enterprise”, E73, 8 June 2009

OCIJ

Office of the Co-Investigating Judgesp., pp.

Page, pages

para., paras

Paragraph, paragraphs

PTC

Pre-Trial Chamber

RAK

Revolutionary Army of Kampuchea

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Rome Statute

Statute of the International Criminal Court, U.N. Doc.
A/CONF.183/9th, adopted at Rome on 17 July 1998,
entered into force 1 July 2002.

RPE

Rules of Procedure and Evidence

S-21 or S-21 complex

The area of S-21 in Phnom Penh, including, unless thecontext otherwise requires, both the S-21 buildings at thecurrent Tuol Sleng Genocide Museum site, as well as
associated sites of Choeung Ek and S-24

S-24

Re-education Camp Prey Sar

SCSLSpecial Court for Sierra Leone

supra

above

Tokyo Charter

Charter of the International Military Tribunal for the Far
East of 19 January 1946, T.I.A.S No. 1589

Tokyo Tribunal

International Military Tribunal for the Far East of 19
January 1946

T.

Transcript

TPO

Trans-Cultural Psychosocial Organisation Cambodia, aCambodian Non-Governmental Organization.

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