Introduction
On December 19, 2019, the Pre-Trial Chamber (PTC) of the Extraordinary Chambers in the Courts of Cambodia (ECCC) rendered its “Considerations on Appeals Against Closing Orders” in Case 004/2 Involving Ao An.Footnote 1 The 266-page ruling exemplified, and brought to a head, the longstanding conflict within the ECCC between the national and international co-prosecutors and between the national and international judges on the parameters of personal jurisdiction and the interpretation of relevant provisions of the ECCC's constitutional documents.Footnote 2 The fate of the ECCC now hangs in the balance.Footnote 3
Background
The ECCC, a special Cambodian criminal court established under Cambodian and treaty law by the Royal Government of Cambodia and the United Nations with international assistance (including foreign judicial officials and staff) provided by and under the direction of the United Nations, has been operating since 2005 and is mandated in its personal jurisdiction “to bring to trial senior leaders of Democratic Kampuchea 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.”Footnote 4 Those years encompassed the rule of the Pol Pot regime in Cambodia, when an estimated 1.7 million or more Cambodian citizens died and most of the population endured atrocities that have been documented by historians and in the ECCC's investigations and jurisprudence. The ECCC has two co-investigating judges (one Cambodian and one foreign) and two co-prosecutors (one Cambodian and the other foreign), which leads to considerable complexity in how cases evolve in the tribunal.
To date, three defendants have been convicted by the ECCC for their actions during the Pol Pot regime: Kaing Guek Eav (Duch) (Case 001), Nuon Chea, who died in August 2019 (Cases 002/1 and 002/2), and Khieu Samphan (Cases 002/1 and 002/2).Footnote 5 One defendant, Ieng Sary, died while standing trial in Case 002/1. Another defendant in Case 002/1, Ieng Thirith, was rendered incompetent and the Trial Chamber stayed proceedings against her. She died in August 2015. The suspect in Case 004/1, Im Chaem, avoided prosecution when the Closing Order dismissed her case with the finding that she fell outside the personal jurisdiction of the ECCC. The cases of Meas Muth (Case 003) and Yim Tith (Case 004) are pending before the PTC.
The investigation of Ao An commenced in 2009 after the International Co-Prosecutor of the ECCC identified Ao An and four other individuals as targets for investigation by the National and International Co-Investigating Judges of the ECCC. The National Co-Prosecutor and National Co-Investigating Judge have consistently argued that Ao An does not fall within the personal jurisdiction of the ECCC. The ECCC legal framework provides that in the event of a dispute between the Co-Prosecutors or between the Co-Investigating Judges, the prosecution or investigation shall proceed unless the PTC, comprising five judges (three Cambodian and two international), rules by supermajority vote, namely at least four judges in the affirmative, to deny the prosecution or investigation.Footnote 6
Following almost ten years of investigative work, the Co-Investigating Judges simultaneously rendered conflicting Closing Orders on August 16, 2018, with the National Co-Investigating Judge, You Bunleng, dismissing the caseFootnote 7 and the International Co-Investigating Judge, Michael Bohlander of Germany, issuing an indictment to proceed to trial.Footnote 8 Judge Bohlander found that Ao An wielded the requisite degree of authority as the Khmer Rouge deputy secretary of Democratic Kampuchea's Central Zone and secretary of that zone's Section 41 to fall within the “most responsible” category of suspects. The charges against Ao An included crimes against humanity, particularly the deaths of tens of thousands of Cambodians, and genocide against the Muslim Cham minority in the country during the Pol Pot regime. Judge You Bunleng objected to the finding of personal jurisdiction regarding Ao An.
The Pre-Trial Chamber's Unanimous Decision
The PTC Judges (Prak Kimsan, Ney Thol, and Huot Vuthy of Cambodia, and Olivier Beauvallet of France and Kang Jin Baik of South Korea) unanimously concluded that the Co-Investigating Judges committed not only “a blatant legal error,” but also violated “the most fundamental principles of the ECCC legal system,” which “may well amount to a denial of justice” because the PTC “is unable to exclude that the Co-Investigating Judges may have willfully intended to defeat the purpose of the default position in this case and deliberately sought to frustrate the authority of the Pre-Trial Chamber.”Footnote 9 That default position requires the Co-Investigating Judges to submit to the PTC a dispute between them before issuing any Closing Order, so that the dispute can be addressed by that Chamber. If a supermajority of the PTC agrees on a resolution of the dispute, that decision then guides the Co-Investigating Judges in their further work on the case. If a supermajority vote is not obtained, then the default position holds, namely that the investigation continues and ultimately a single Closing Order of indictment or dismissal must be issued by the Co-Investigating Judges.
The Pre-Trial Chamber ruled that the Co-Investigating Judges cannot leapfrog over the dispute mechanism by finishing their work on the case and issuing split Closing Orders, essentially leaving it to the PTC to resolve the conflicting Closing Orders despite the lack of a procedure to do so in the ECCC legal framework. The Co-Investigating Judges are mandated under that framework to work together until they reach consensus on a single Closing Order, while resolving interim disputes through the PTC procedure. If the Co-Investigating Judges arrive at a “procedural stalemate” and cannot agree upon a single Closing Order, then the PTC ruled that “the Judges must still perform their judicial duty and function by following the procedures available within the ECCC legal system to settle disagreements between them and ensure a final determination of the matters falling within their jurisdiction is attained.”Footnote 10 In other words, instead of each Co-Investigating Judge closing the case separately, they should have brought their disagreement to the PTC to resolve the matter. Under the ECCC legal framework, the objective is a single Closing Order and not split Closing Orders.
At this juncture, where the PTC Judges agreed upon the “malpractice”Footnote 11 of the Co-Investigating Judges issuing split Closing Orders, the National Judges and International Judges of the PTC parted their ways and rendered Separate Opinions.
The National Judges’ Separate Opinion
The three National Judges expressed their view that the Closing Order of the National Co-Investigating Judge that dismissed the case must stand while the indictment must be annulled. The National Judges observed that a lacunae exists in the law about what to do when there are split Closing Orders. They concluded that the Closing Order (Dismissal) “was done in accordance with the [UN/Cambodia] Agreement and the ECCC law,”Footnote 12 but left unexplained how their majority vote on the matter prevails under the supermajority vote requirement and default provision of the ECCC legal framework. They further explained that only senior leaders of the Khmer Rouge who were members of the Khmer Rouge Standing Committee, as well as Duch (convicted in Case 001), and who also were “most responsible,” may stand trial before the ECCC.Footnote 13 If someone else was “most responsible” but neither a senior leader nor Duch, that individual apparently would not be covered by the ECCC's personal jurisdiction under their reasoning. Since Duch had already been convicted, it was difficult for the National Judges to explain how he could have been excluded from the personal jurisdiction of the ECCC. Nonetheless, the National Judges embraced the National Co-Investigating Judge's view that Ao An fell outside of the defined categories for personal jurisdiction and concluded that the case must be dismissed.
The International Judges’ Separate Opinion
The two International Judges found that only the indictment Closing Order was valid and declared the dismissal Closing Order void. They relied upon “the principle of continuation of judicial investigation”Footnote 14 and its embodiment in the default provisions of the ECCC legal framework as the logical premise upon which to advance a case towards trial in the absence of a supermajority vote to dismiss it. In their view, the negotiating history of the legal framework supports this position.Footnote 15 The essential compromise between the Cambodian Government negotiators and UN negotiators was to accept a majority of judges appointed by the Cambodian Government in exchange for the requirement that all judicial decisions be reached by a supermajority vote or, failing that, the oft-repeated default provision in the legal framework required that the prosecution or investigation “shall proceed.” If the majority Cambodian judges ruled in unison, they would have to persuade at least one international judge to join them. If the international judges all voted together, they would require at least two Cambodian judges to join them in order to achieve a supermajority vote. The International Judges stated that, “In this specific situation where one of the Co-Investigating Judges proposes to issue an indictment and the other Co-Investigating Judge disagrees, ‘the investigation shall proceed’ means that the indictment be issued as proposed.”Footnote 16 They found a reasonable inference in the ECCC legal framework “that the key object of the disagreement settlement mechanism is to prevent a deadlock from derailing the proceedings from moving to trial.”Footnote 17
The International Judges also found that, on numerous grounds of review of the law and after considering the International Co-Investigating Judge's exercise of discretion and his evaluation of the evidence, Ao An properly fell within the personal jurisdiction of the ECCC and thus qualified to be indicted, contrary to the view of the National Judges. They believed, however, that the International Co-Investigating Judge “erred in failing to properly consider the issuance of an arrest warrant” against Ao An,Footnote 18 who remained free.
Subsequent Developments
On February 4, 2020, the International Co-Prosecutor requested that the PTC direct the Court Management Section to transfer the Indictment to the Trial Chamber “to effectuate the ‘fundamental and determinative default position’ which the PTC unanimously held ‘is intrinsic to the ECCC legal framework’, that this case proceed to trial” (citations omitted).Footnote 19 On March 12, 2020, the International Judges of the PTC issued a memorandum pressing the same point;Footnote 20 however, on March 16, 2020, the President of the PTC, Judge Prak Kimsan of Cambodia, released a memorandum signed only by him stating that the section of the PTC Decision in Case 004/2 that was unanimously agreed (on the illegality of split Closing Orders) was the only part that “shall have applicable effect.” The opinions of each judge in separate opinions “do not have applicable effect.” He then purported to shut down any further action by the PTC on the case, although the legal basis for his memorandum and presumed requirement to comply with its statements are not explained.Footnote 21 On April 3, 2020, the President of the Trial Chamber, Judge Nil Nonn of Cambodia, issued a “Statement Of the Judges of the Trial Chamber of the ECCC Regarding Case 004/2 Involving AO An.”Footnote 22 Although not a formal decision, the Trial Chamber noted the communications among ECCC officials since the PTC Decision and pointed out that, “The National Judges of the Trial Chamber believe that this case was closed before the Pre-Trial Chamber. Therefore, the Trial Chamber does not have any authority to make any decision regarding the case . . . [The National Judges] have stated there will not be a trial of AO An now or in the future.” In contrast, “The International Judges of the Trial Chamber believe an argument could be made that under the unique circumstances of the case the Chamber has inherent authority to address some of the preliminary issues raised by the parties in communications sent to the Chamber.” Such conflicting views led to the agreed statement that has the result of closing the Trial Chamber's doors to the case.
However, on April 22, 2020, the UN Secretary-General “reinstated Mr. Michael BOHLANDER as the International Co-Investigating Judge . . . Judge Bohlander and his Cambodian counterpart, Judge You Bunleng, accordingly comprise the Office of Co-Investigating Judges from this date.”Footnote 23 What this means for the Ao An case, if anything, is unclear.
On May 4, 2020, the Co-Prosecutors issued separate press releases.Footnote 24 The International Co-Prosecutor cautioned that “attempts by any entity outside the Court to alter the outcome or seek the termination of any case before the Court, by means other than the official judicial process, could be considered as prohibited external interference.” This may allude to possible political influence. The National Co-Prosecutor stated that she “agrees with the National Judges of the Trial Chamber that Case 004/2 against the Charted Person AO An has already been concluded before the Pre-Trial Chamber and there is no need for the National Co-Prosecutor to take any action.”
Conclusion
The mixed results of the PTC's ruling in the AO An case further muddied the waters of ECCC jurisprudence after the split Closing Orders of the Co-Investigating Judges created much uncertainty that begged for a unified decision by the PTC Judges to resolve the impasse over the future of the case. Speculation about the possible influence of political considerations on the deliberations of the Cambodian judges will continue to threaten the integrity of the ECCC's record. The PTC ruling and separate opinions will be tested in the performance of the ECCC Judges in the remaining Meas Muth and Yim Tith cases.
IV. PRELIMINARY ISSUES
…
B. Position of the ECCC Within the Cambodian Legal System
55. In their respective Closing Orders, the International Co-Investigating Judge noted the Pre-Trial Chamber's previous finding that ordinary Cambodian courts retain jurisdiction over Khmer Rouge-era crimes that could not be tried before the ECCC,Footnote 103 while the National Co-Investigating Judge maintained that the ECCC Law excludes any personal or subject-matter jurisdiction of ordinary Cambodian courts over crimes committed under the ECCC's temporal jurisdiction.Footnote 104 The Pre-Trial Chamber deems it necessary, as an appellate Chamber, to address these opposite findings.
56. With regard to cases of which the ECCC is already seised, the Pre-Trial Chamber recalls that there is no referral procedure foreseen in the applicable law. Those cases cannot be transferred to domestic courts.Footnote 105 It has been clear since 2009 that there would be no further prosecutions after the conclusion of the remaining cases of which the ECCC is seised.Footnote 106
57. With respect to other cases, the Pre-Trial Chamber considers that Cambodia has inherent jurisdiction over all Khmer Rouge-era cases of which the ECCC is not seised. Prior to the establishment of the ECCC, the Royal Government of Cambodia was not only free, but even had an obligation under international law, to prosecute senior leaders of DK or those alleged to be most responsible for international crimes, as a basic exercise of its jurisdiction. At the time of the ECCC's inception, Cambodian courts were indeed in the process of trying certain individuals who would meet (or could have met) the threshold for personal jurisdiction at the ECCC.Footnote 107
58. In agreement with the United Nations, the Royal Government of Cambodia established the ECCC as a specialised court within the existing Cambodian court systemFootnote 108 and only delegated jurisdiction over senior leaders of Democratic Kampuchea and those most responsible.Footnote 109 Articles 1 and 2(1) of the ECCC Agreement, mirrored by Articles 1 and 2new of the ECCC Law, expressly limit the personal jurisdiction of the ECCC to senior leaders of DK and those most responsible for certain crimes committed during the Khmer Rouge era. Nothing in the applicable law suggests that the ECCC would have exclusive jurisdiction over other Khmer Rouge-era cases. A close scrutiny of available records of the negotiation history supports the conclusion that the ECCC does not strip national courts of their jurisdiction.Footnote 110 The limitation of the ECCC's personal jurisdiction cannot be interpreted as reflecting an intention on the part of the drafters of the ECCC Law and Agreement that other perpetrators would necessarily escape justice.Footnote 111
59. In light of the foregoing, the Pre-Trial Chamber reaffirms its unanimous finding in Case 004/1 that the ECCC's applicable law does not preclude national jurisdiction and that ordinary Cambodian courts inherently have full jurisdiction over matters of criminal justice.
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E. The Simultaneous Issuance of Two Conflicting Orders
88. The International Co-Investigating Judge issued, on 16 August 2018, the Closing Order (Indictment) sending AO An to trial,Footnote 161 while the National Co-Investigating Judge issued, on the same day, the Closing Order (Dismissal) dismissing all charges against him.Footnote 162 As part of its appellate jurisdiction,Footnote 163 the Pre-Trial Chamber will determine whether the unprecedented simultaneous issuance of two separate and opposing Closing Orders in one single case is compliant with the ECCC legal framework.
89. For the reasons set out hereafter, the Pre-Trial Chamber finds that, by issuing split Closing Orders, the Co-Investigating Judges violated the ECCC legal framework, derogated from their highest duties and created an unprecedented legal predicament under minding the very foundations of their judicial office. The Chamber addresses in separate sections the impact of such fundamental errors on the legal status of each Closing OrderFootnote 164 and the review powers it must exercise in these exceptional circumstancesFootnote 165 to restore legality and remedy the distortion of procedures caused by the Co-Investigating Judges’ unlawful actions in this case.
90. In this section, the Pre-Trial Chamber examines: (i) the law generally governing the issue at stake; (ii) the Co-Investigating Judges’ flawed justification for issuing split closing orders; and (iii) how the disagreement settlement procedure should have been used in this case.
1. Applicable Law
91. First, the Pre-Trial Chamber notes the importance of the joint responsibility of the two Co-Investigating Judges in conducting judicial investigations at the ECCC, as Article 14new (1) of the ECCC Law, in relevant part, states that “[t]he judges shall attempt to achieve unanimity in their decisions.” More specifically, Article 23new of the ECCC Law provides:
All investigations shall be the joint responsibility of the two investigating judges, one Cambodian and another foreign, […], and shall following existing procedures in force. If these existing procedures do not deal with a particular matter, or if there is uncertainty regarding their interpretation or application or if there is a question regarding their consistency with international standards, the Co-Investigating Judges may seek guidance in procedural rules established at the international level.
92. Regarding the issuance of closing orders by the Co-Investigating Judges, the Pre-Trial Chamber observes that Internal Rule 67, in relevant part, provides:
Rule 67. Closing Orders by the Co-Investigating Judges
(1) The Co-Investigating Judges shall conclude the investigation by issuing a Closing Order, either indicting a Charged Person and sending him or her to trial, or dismissing the case. The Co-Investigating Judges are not bound by the Co-Prosecutors’ submissions.
(2) The Indictment shall be void for procedural defect unless it sets out the identity of the Accused, a description of the material facts and their legal characterisation by the Co-Investigating Judges, including the relevant criminal provisions and the nature of the criminal responsibility.
(3) The Co-Investigating Judges shall issue a Dismissal Order in the following circumstances:
(a) The acts in question do not amount to crimes within the jurisdiction of the ECCC;
(b) The perpetrators of the acts have not been identified; or
(c) There is not sufficient evidence against the Charged Person or persons of the charges.
(d) The Closing Order shall state the reasons for the decision.
93. With respect to any disagreements between the Co-Prosecutors and the Co-Investigating Judges, the Pre-Trial Chamber observes that Articles 5(1), (4) and 7 of the ECCC Agreement, in relevant part, state:
Article 5: Investigating Judges
(1) There shall be one Cambodian and one international investigating judge serving as co-investigating judges. They shall be responsible for the conduct of the investigations.
…
(4) The co-investigating judges shall cooperate with a view to arriving at a common approach to investigation. In case the co-investigating judges are unable to agree whether to proceed with an investigation, the investigation shall proceed unless the judges or one of them requests within 30 days that the difference shall be settled in accordance with article 7.
Article 7: Settlement of differences between the co-investigating judges or the co-prosecutors
(1) In case the co-investigating judges or the co-prosecutors have made a request in accordance with Article 5, paragraph 4 […], they shall submit written statements of facts and the reasons for the different positions to the Director of the Office of Administration.
(2) The difference shall be settled forthwith by a Pre-Trial Chamber of five judges […].
(3) Upon receipt of the statements referred to in paragraph one, the Director of the Office of Administration shall immediately convene the Pre-Trial Chamber and communicate the statements to its members.
(4) A decision of the Pre-Trial Chamber, against which there is no appeal, requires the affirmative vote of at least four judges. The decision shall be communicated to the Director of the Office of Administration, who shall publish it and communicate it to the co-investigating judges or the co-prosecutors. They shall immediately proceed in accordance with the decision of the Chamber. If there is no majority, as required for a decision, the investigation or prosecution shall proceed.
94. Internal Rule 72 details the specifics of the disagreement settlement procedures as follows:
Rule 72: Settlement of Disagreements between the Co-Investigating Judges
(1) In the event of a disagreement between the Co-Investigating Judges, either or both of them may record the exact nature of their disagreement in a signed, dated document which shall be placed in a register of disagreements kept by the Greffier of the Co-Investigating Judges.
(2) Within 30 (thirty) days, either Co-Investigating Judge may bring the disagreement before the Chamber by submitting a written statement of the facts and reasons for the disagreement to the Office of Administration, which shall immediately convene the Chamber and communicate the statements to its judges, with a copy to the other Co-Investigating Judge. […] The written statement of the facts and reasons for the disagreement shall not be placed on the case file, except in cases [where the disagreement relates to a decision against which a party to the proceedings would have the right to appeal to the Chamber under these IRs]. The Greffier of the Co-Investigating Judges shall forward a copy of the case file to the Chamber immediately.
(3) Throughout this dispute settlement period, the Co-Investigating Judges shall continue to seek consensus. However, the action or decision which is the subject of the disagreement shall be executed, except for disagreements concerning:
(a) any decision that would be open to appeal by the Charged Person or a Civil Party under these IRs;
(b) notification of charges; or
(c) an Arrest and Detention Order
in which case, no action shall be taken with respect to the subject of the disagreement until either consensus is achieved, the 30 (thirty) day period has ended, or the Chamber has been seised and the dispute settlement procedure has been completed, as appropriate.
(4) the Chamber shall settle the disagreement forthwith, as follows: […]
(d) A decision of the Chamber shall require the affirmative vote of at least four judges. This decision is not subject to appeal. If the required majority is not achieved before the Chamber, in accordance with Article 23 new of the ECCC law, the default decision shall be that the order or investigative act done by one Co-Investigating Judge shall stand, or that the order or investigative act proposed to be done by one Co-Investigating Judge shall be executed. […].
95. Lastly, the Pre-Trial Chamber notes that Article 12(1) of the Agreement and Internal Rule 2 mandate that the procedures before the ECCC must be in accordance with both Cambodian law and international standards. In this respect, Article 1(1) of the Cambodian Code of Criminal Procedure, in relevant part, provides that this Code “aims at defining the rules to be strictly followed and applied in order to clearly determine the existence of any criminal offense.” Articles 23new, 23new, 33new and 37new of the ECCC Law also make it clear that ECCC organs must follow all existing procedures in force. The Chamber finds that these provisions aim to guarantee the legality, fairness and effectiveness of ECCC proceedings.
2. The Co-Investigating Judges’ Reasons for Issuing Split Closing Orders
96. The Pre-Trial Chamber notes that the Case 004/02 procedure has been subject to a number of confidential disagreements between the Co-Investigating Judges.Footnote 166 None of these disagreements were brought before the Chamber. As noted above, on 16 August 2018, the Co-Investigating Judges simultaneously issued two separate and conflicting Closing Orders. The filing of split Closing Orders evidences unresolved disagreements between the Judges over the issue of whether Ao An falls within the ECCC's personal jurisdiction.
97. The reasons for the Co-Investigating Judges’ issuance of separate and opposing Closing Orders are stated in two of their previous decisions, allowing the Co-Prosecutors to file two separate Final Submissions (“Decisions on Disclosure Concerning Disagreements”)Footnote 167 and finding that the applicable law permits such filing (“Decision on Request for Clarification”).Footnote 168 The Pre-Trial Chamber deems it useful to reproduce large excerpts of these decisions, starting with the Decision on Disclosure concerning Disagreements:
14. To pre-empt any future litigation of this point and in order to save the Parties time, we hereby state that we consider separate and opposing closing orders as generally permitted under the applicable law, for very much the same reasons which we found regarding opposing final submissions. […]
15. We are aware of the problem this raises at the appeals stage. Internal Rule 77(13) only addresses the scenario of a joint dismissal or indictment; not that of split closing orders. However, this is no justification to argue that therefore split closing orders are prohibited. On the contrary, the Supreme Court Chamber in its appeal judgement in Case 001 explicitly acknowledges the scenario of the [Co-Investigating Judges] reasonably disagreeing over personal jurisdiction, for example, and that in the context of the disagreement procedure the investigation shall proceed.
16. We are of the view that the investigation stage ends at the very latest with the decision of the [Pre-Trial Chamber] on any appeal against the closing order. If there were to be no supermajority in the [Pre-Trial Chamber] for upholding one of the closing orders, both would appear to stand under the application of Internal Rule 77(13) […].Footnote 169
In their Decision on Request for Clarification, the Co-Investigating Judges stated with respect to the disagreement procedure:
23. As the filing of two final submissions evidences a disagreement between the Co-Prosecutors, the question of whether the Co-Prosecutors are obliged to use the full complement of disagreement settlement measures, in other words, whether the mechanisms in Internal Rule 71 are mandatory or discretionary, does […] fall within [‘the Co-Investigating Judges’] remit, as it relates to the admissibility of the final submissions. […]
27. […] We […] consider that it is clear, […], that under the ECCC Law and the Internal Rules the recording of disagreements between the Co-Prosecutors is discretionary. Therefore we do not consider that the Co-Prosecutors have an obligation to use the full complement of settlement measures. […].Footnote 170
Regarding the lawfulness of filing multiple final submissions, the Co-Investigating Judges stated in the same Decision:
32. While we agree […] that one reading of Internal Rule 66(5) envisages one final submission, the language does not require a joint final submission, nor does it exclude the filing of separate submissions […]. While the Co-Prosecutors are required to work together to prepare indictments, that they may disagree is recognised in the [ECCC Agreement] which requires them to “cooperate with a view to arriving at a common approach to the prosetution” and, of course, in the fact that a disagreement resolution mechanism is provided for, which, in the [ECCC Agreement], explicitly envisages a disagreement on “whether to proceed with a prosecution”.
33. A further consideration is that […] [the Co-Investigating Judges] are not bound to accept the contents of any final submissions […]. […]
34. Regarding the submission that filing two final submissions effectively usurps the [Pre-Trial Chambers]’s “exclusive authority” to settle disputes […], we do not consider that seising the [Pre-Trial Chamber] is mandatory, and accordingly, there is no exclusive authority to be usurped.Footnote 171
98. At the outset, the Pre-Trial Chamber notes that the Co-Prosecutors’ filing of two separate Final Submissions did not prevent the Co-Investigating Judges’ issuance of a single Closing Order in Case 004/1.Footnote 172 In this regard, the Chamber stresses as a preliminary matter the fundamental differences that exist, in function and authority, between the Parties’ submissions and the judicial decisions issued by Judges, such as closing orders. Independent of the question of whether the filing of separate and opposing Final Submissions by the Co-Prosecutors is permitted within the ECCC legal system, the Pre-Trial Chamber finds that the Co-Investigating Judges committed a gross error of law in this case by finding that the ECCC legal framework authorises the issuance of separate and opposing Closing Orders.
99. Moreover, while one must presume that the Co-Investigating Judges may have committed this legal error in good faith, the Pre-Trial Chamber is unable to exclude that the Co-Investigating Judges may have wilfully intended to circumvent the application of the law in this case and create the current procedural stalemate. Indeed, it clearly appears from their above decisions that they deliberately ensured that any resolution of the matters over which they disagreed would have to be addressed only as part of appellate proceedings before the Pre-Trial Chamber rather than through the procedure specifically intended for by the ECCC legal framework to conclusively settle disagreements between the Co-Investigating Judges. The Co-Investigating Judges were aware of the difficulties their actions would cause.Footnote 173 Yet, they made sure to shield their relevant disagreements from the effective legal resolution mechanism prescribed by the ECCC Agreement, ECCC Law, and Internal Rules.
100. The Pre-Trial Chamber unequivocally denounces and condemns this grave violation of the ECCC legal system. The Chamber will now state the correct applicable law, prior to considering, in another section, the necessary practical implications of the Co-Investigating Judges’ violation of the ECCC legal framework.
3. Discussion
101. Just like in any other legal system, the law governing the ECCC proceedings does not resolve all the legal uncertainties that may arise regarding procedural and substantive matters. Yet, this law contemplates that disagreements may arise in the ECCC hybrid context and enacts procedures to handle and/or settle such disagreement so as to avoid any procedural stalemates. Under the ECCC Agreement, the primary function entrusted to the Pre-Trial Chamber is precisely to provide for a mechanism to conclusively resolve disagreements between the Co-Prosecutors and between the Co-Investigating Judges. The Co-Investigating Judges in this case decided to evade this mechanism and, instead, issued separate and opposing Closing Orders with full knowledge of the problems that such action would cause within the ECCC legal system.
102. The Pre-Trial Chamber must determine whether this course of action complied with the ECCC legal framework. For the reasons expressed hereunder, the Chamber finds that the Co-Investigating Judges’ issuance of split Closing Orders violated the very foundations of the ECCC legal system. The Chamber will discuss (a) the fundamental principles governing disagreements between the Co-Investigating Judges and (b) the existing procedures to settle disagreements between these Judges, and (c) will provide its conclusion on the Co-Investigating Judges’ simultaneous issuance of two conflicting Closing Orders in this case.
a. Fundamental Principles Governing Disagreements between the Co-Investigating Judges
103. First, the Pre-Trial Chamber notes that the joint conduct of investigations by the National and International Co-Investigating Judges is a primary fundamental legal principle at the ECCC, as Article 5(1) of the ECCC Agreement states: “There shall be one Cambodian and one international investigating judge serving as co-investigating judges. They shall be responsible for the conduct of investigations.”
104. The ECCC Law strengthens this fundamental principle by providing that “[t]he judges shall attempt to achieve unanimity in their decisions.”Footnote 174 More significantly, Article 23new of the ECCC Law not only reiterates this principle, but also provides further indications on how the principle is to be implemented by explicitly requiring that “[a]ll investigations shall be the joint responsibility of two investigating judges, one Cambodian and another foreign, hereinafter referred to as Co-Investigating Judges, and shall follow existing procedures in force.”Footnote 175 The Chamber finds that this provision means that the Co-Investigating Judges must conduct the investigations jointly and in accordance with the legal provisions applicable at the ECCC. The Chamber further notes that this provision mirrors Article 1 of the Cambodian Code of Criminal Procedure, providing that this Code “aims at defining the rules to be strictly followed and applied in order to clearly determine the existence of a criminal offense.”Footnote 176
105. The Pre-Trial Chamber previously recognised, as a matter of principle, the ability and validity of one Co-Investigating Judge to act alone, especially where his colleague has retreated from continuing the investigation.Footnote 177 The Chamber stated, with the utmost clarity, that “[t]he Agreement, the ECCC Law and the Internal Rules provide that one Co-Investigating Judge can validly act alone if the requirements of the disagreement procedure have been complied with.”Footnote 178 The Chamber added that the “[ECCC] framework contains sufficient checks and balances to ensure that unilateral actions are taken in accordance with the law.”Footnote 179
106. In another ruling, the Chamber specified that “[t]he Co-Investigating Judges are under no obligation to seise the Pre-Trial Chamber when they do not agree on an issue before them” insofar as the Judges agree on a course of action that is “coherent” with the “default position” intrinsic to the ECCC legal framework, “being that the ‘investigation shall proceed’”.Footnote 180
107. In this respect, the Pre-Trial Chamber notes that Article 23new of the ECCC Law reaffirms and specifies Article 5(4) of the ECCC Agreement, by stating that “[i]n the event of disagreement between the Co-Investigating Judges, […] [t]he investigation shall proceed under the Co-Investigating Judges or one of them requests within thirty days that the difference shall be settled”. Paragraph (4)(d) of Internal Rule 72, which governs the settlement of disagreements between the Co-Investigating Judges by the Pre-Trial Chamber, reinforces this fundamental position by stating:
(4) The Chamber shall settle the disagreement forthwith, as follow: […]
(d) A decision of the Chamber shall require the affirmative vote of at least four judges. This decision is not subject to appeal. If the required majority is not achieved before the Chamber, in accordance with Article 23 new of the ECCC law, the default decision shall be that the order or investigative act done by one Co-Investigating Judge shall stand, or that the order or investigative act proposed to be done by one Co-Investigating Judge shall be executed. […].
108. In this case, the Chamber must specify whether these legal principles permitted the Co-Investigating Judges to issue split Closing Orders under Internal Rule 67 instead of referring the matters over which they disagreed to the Pre-Trial Chamber pursuant to Internal Rule 72.
b. Settlement of Disagreements between the Co-Investigating Judges
109. At the outset, the Chamber considers that the issue of whether the Co-Investigating Judges are obliged to refer their disagreement to the Pre-Trial Chamber under Internal Rule 72 is governed by the overriding principle that ECCC proceedings must comply with the legality, fairness and effectiveness requirements under the ECCC legal framework. In this case, the requirement of effective criminal justice is worthy of particular attention by this Chamber.
110. The Pre-Trial Chamber has previously acknowledged that, by creating the ECCC, the Royal Government of Cambodia implemented at least part of its international law obligations to investigate and prosecute the Khmer Rouge-era crimes.Footnote 181 Both the Cambodian law and the international law applying to the ECCC require that the efforts to investigate and prosecute those crimes be genuine, meaning that ECCC organs must ensure the effective investigation and prosecution of crimes falling within the ECCC's jurisdiction by complying with all existing procedures in force.
111. One way in which the Royal Government of Cambodia and the United Nations secured effective justice in the ECCC context was by making sure that procedures were available not only to handle disagreements arising in the course of investigations and prosecutions, but also to conclusively resolve such disagreements in order to avoid procedural stalemates that would, inter alia, hamper the effectiveness of the proceedings. These procedures are underlined and ultimately governed by the default position prescribed, inter alia, by Article 5(4) of the ECCC Agreement, unambiguously providing that when “the co-investigating judges are unable to agree whether to proceed with an investigation, the investigation shall proceed unless the judges or one of them requests […] that the difference shall be settled”.
112. In this case, the Chamber considers that the issue of whether the Co-Investigating Judges had the prerogative to issue split Closing Orders instead of referring their disagreement to the Pre-Trial Chamber, depends on whether their failure to follow the disagreement settlement procedure provided for by Internal Rule 72 has circumvented the practical effect of the default position underlying the whole ECCC legal system. In this respect, the Chamber stresses that a principle as fundamental and determinative as the default position cannot be overridden or deprived of its fullest weight and effect by convoluted interpretative constructions, taking advantage of possible ambiguities in the ECCC Law and Internal Rules to render this core principle of the ECCC Agreement meaningless. Concluding otherwise would lead to a manifestly unreasonable legal result, violating both Cambodia law and international law.
113. In light of the foregoing, the Pre-Trial Chamber will outline the diverse array of procedures available to the Co-Investigating Judges for handling and solving their disagreements in compliance with the ECCC legal framework. In this respect, the nature and severity of the disagreement between the Co-Investigating Judges should inform the most appropriate procedure to be followed, depending on the particular circumstances of each case. Hence, the courses of action available may range from the tacit toleration of an act or decision taken by the other Co-Investigating Judge, to the registration of a disagreement, or referral to seek the formal annulment of a contested act or decision in accordance with Internal Rule 72.
114. In any of these situations, the Chamber stresses that the Co-Investigating Judges actions must be, at all time, within their individual capacity and performed in accordance with the cooperation principle stipulated by Article 5(4) of the ECCC Agreement, which also reflects the equal status of the National and the International Co-Investigating Judges within the ECCC hybrid system.Footnote 182 Further, the Chamber emphasises that the Co-Investigating Judges must, under the ECCC legal framework, continue to seek a common position during the disagreement process. The ECCC legal system has been carefully designed and is structured to ensure the joint conduct and execution of judicial investigations by the two Co-Investigating Judges. These Judges may thus reach an agreement at any stage of the investigation of cases of which they are seised. The crystallisation of any disagreements between them about such cases is also permissible, but only insofar as it complies with the existing procedures in force and remains coherent with the default position that is intrinsic to the ECCC legal system and which provides an effective way out of any possible procedural impacts.
115. Specifically, the Chamber finds for instance that, under Article 23new(3) of the ECCC Law, stating that “[t]he investigation shall proceed unless the Co-Investigating Judges or one of them requests within thirty days that the difference shall be settled in accordance with the following provisions”,Footnote 183 a Co-Investigating Judge may raise an objection against his colleague's action or decision by formally registering a disagreement.Footnote 184 The Chamber finds that the formalisation of disagreements pursuant to Article 23new(3) of the ECCC Law and Internal Rule 72(1), or the reaching of consensus over matters at issue, is recognised and permitted in the ECCC legal system. In such cases, “the Co-Investigating Judges, either one or both of them may record the exact nature of their disagreement in a signed, dated document which shall be placed in a register of disagreements kept by the Greffier of the Co-Investigating Judges” pursuant to Internal Rule 72(1). The Chamber considers that the disagreement is then contained between the Co-Investigating Judges and remains confidential. The Chamber further notes that Article 5(4) of the ECCC Agreement, Article 23new of the ECCC Law and Internal Rule 72(3) clearly indicate that, in such case, one Co-Investigating Judge may act without the consent of the other Judge where neither of them brings such formalised disagreement before the Pre-Trial Chamber within the prescribed time limit.Footnote 185 This Co-Investigating Judge may then proceed with the contested decision once the required time limit has elapsed.Footnote 186
117. The Chamber notes that when the disagreement is so critical that one of the Co-Investigating Judges wishes to halt the implementation of his colleague's decision, this Judge's only available legal recourse is to bring the disagreement before the Pre-Trial Chamber, which is explicitly and specifically empowered to settle the differences between the Co-Investigating Judges. To trigger this effective disagreement resolution mechanism, the Co-Investigating Judge(s) must submit, in writing, a statement of the facts and reasons for the disagreement.Footnote 187 The ECCC's applicable laws endow the Pre-Trial Chamber with the necessary power to conclusively resolve the matters in dispute between the two equal Co-Investigating Judges and determine whether or not the disputed decision should be carried out. In cases where the Pre-Trial Chamber cannot achieve the supermajority vote to conclusively settle the disagreement, the ECCC legal framework provides that the matter is then resolved by the default position, stipulating that the investigation must proceed.Footnote 188
118. The Chamber reiterates that the Co-Investigating Judges are obliged to continue to seek a common legal reasoning or mutually agreed course of action during the disagreement settlement period.Footnote 189 The use of the present tense in Internal Rule 72(3) leaves no doubt in this respect and clearly indicates that the Co-Investigating Judges have a reciprocal obligation in this sense under the ECCC legal framework.Footnote 190
119. Conversely, the law applying at the ECCC clearly contemplates that, despite their genuine efforts to reach a compromise or find a consensus, the two equal National and International Co-Investigating Judges may still be unable to agree on a common position. The Chamber considers that, in such a case, and where the matter in dispute or the prolonged disagreement over an issue jeopardises the effectiveness of the judicial investigation, the ECCC legal framework does not permit that the disagreement between the Co-Investigating Judges be entrenched or be shielded from the dispute resolution mechanism. The Chamber therefore finds that, where the existing disagreement settlement procedure in force emerges as the only remaining mechanism available to the Co-Investigating Judges to prevent the occurrence of a procedural stalemate and guarantee the legality, fairness and effectiveness of the judicial investigation, the Co-Investigating Judges have the obligation to trigger this mechanism by referring their disagreement to the Pre-Trial Chamber.
c. Conclusion regarding the Issuance of Split Closing Orders
120. In light of the above, the Pre-Trial Chamber finds that, in the case of disagreements related to matters that must be determined by a closing order under Internal Rule 67, the ECCC legal framework allows only two courses of action pursuant to Article 23new of the ECCC Law and Internal Rule 72(3). The Co-Investigating Judges are obliged either to reach at tacit or express consensus on those matters, or to refer their disagreement on such matters to the Pre-Trial Chamber. Further, while the Co-Investigating Judges enjoy discretion to consent, even implicitly, to acts in dispute, the formal referral of their disagreements to the Chamber becomes mandatory when they fail to reach, within a reasonable time, a common position on any matter that impacts the closing order, as they have in such case no other practical and legal means available to settle their dispute and avoid a procedural stalemate.
121. The Pre-Trial Chamber finds that the legal texts governing the ECCC proceedings, when seen in this light, contain no significant ambiguity. Internal Rule 67(1) clearly stipulates that “[t]he Co-Investigating Judges shall conclude the investigation by issuing a Closing Order, either indicting a Charged Person […], or dismissing the case.” The Glossary of the Internal Rules adds that a “Closing Order refers to the final order made by the Co-Investigating Judges or the Pre-Trial Chamber at the end of the judicial investigation, whether Indictment or Dismissal Order”.Footnote 191 These provisions make it clear that a closing order of the Co-Investigating Judges is a single decision and offer no legal bases to contend that the ECCC legal framework allows the issuance of split closing orders. As such, the interpretative clause of Internal Rule 1(2)—indicating that, in the Rules, the singular includes the plural, and a reference to the Co-Investigating Judges “includes both of them acting jointly and each of them acting individually”—does not offer a sufficient legal basis to override or undermine core principles of the ECCC Agreement, such as the default position, or to claim a power to act when the effects of the exercise of such power would conflict with those principles. The rule on strict construction of penal statutes further prevents any arbitrary interpretations in this sense.
122. The Pre-Trial Chamber therefore rejects the Co-Investigating Judges’ reasoning on the purported legal permissibility of issuing two separate and opposing closing orders at the ECCC.Footnote 192 In addition to the manifest errors of law upon which their reasoning is based, the Chamber finds that the Judges also conflated the distinctive character of a judicial decision with the filing of Parties’ submissions. The judicial duty to pronounce, based on the law, a decision on a matter in dispute (jurisdiction) lies at the heart of a judge's highest responsibility and function.Footnote 193 As such, pronouncements adjudicating and settling matters in dispute enjoy a legal obligatory nature and effect (imperium), unlike the submissions made by parties.Footnote 194 However, the judge cannot refrain from adjudicating the matter before him or her and from arriving at a conclusion that effectively decides this matter. The Pre-Trial Chamber notes that, at the ECCC, the Co-Investigating Judges jointly assume such judicial office. When their disagreements prevent them from arriving at a common final determination of a case of which they are seised, the Judges must still perform their judicial duty and function by following the procedures available within the ECCC legal system to settle disagreements between them and ensure that a final determination of the matters falling within their jurisdiction is attained.
123. In conclusion, the Pre-Trial Chamber stresses that the errors committed by the Co-Investigating Judges in this case undermine the very foundations of the hybrid system and proper functioning of the ECCC. Despite the crucial and sensitive nature of the matter at stake, the Co-Investigating Judges have allowed themselves to issue the split Closing Orders with remarkably minimal reasoning to justify their action, recalling simply one of their prior decisions.Footnote 195 The Chamber finds it especially disturbing that the split Closing Orders were issued on the same day, in one language only, with an explicit declaration by the two Judges that they agreed on the unlawful issuance of separate and conflicting Closing Orders. The Chamber considers that the Co-Investigating Judges’ malpractice has in this case jeopardised the whole legal system upheld by the Royal Government of Cambodia and the United Nations. It is astonishing to observe that the Judges were fully “aware of the problem” that the issuance of split Closing Orders would cause, notably on appeal.Footnote 196 Yet, they nonetheless decided to shield their disagreements from the most effective dispute settlement mechanism available under the ECCC legal framework to ensure a way out of procedural stalemates. More than a blatant legal error, violating the most fundamental principles of the ECCC legal system, the Pre-Trial Chamber considers that the Co-Investigating Judges’ unlawful actions may well amount to a denial of justice, especially since this Chamber is unable to exclude that the Co-Investigating Judges may have wilfully intended to defeat the purpose of the default position in this case and deliberately sought to frustrate the authority of the Pre-Trial Chamber.
124. After ten years of investigation into crimes among the most atrocious and brutal committed during the twentieth century, the Pre-Trial Chamber strongly deplores and condemns the unprecedented legal predicament which the Co-Investigating Judges’ unlawful actions have precipitated upon the current ECCC proceeding. The Chamber notes with regret that never, to its knowledge, has there been any criminal case in the history of any national or international legal system that closed with the simultaneous issuance of two contrary decisions emanating from one single judicial office. The Chamber specifies in a distinct section the exceptional review powersFootnote 197 it is called upon to exercise in the face of such a grave disregard by the Co-Investigating Judges of the core principles underlying the ECCC legal system and failure to uphold the paramount duties entrusted to their Office under the ECCC legal framework. The Chamber also separately clarifies the impact that these fundamental errors have on the legal status of each Closing Order.Footnote 198
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VIII. OPINION OF JUDGES PRAK KIMSAN, NEY THOL AND HUOT VUTHY
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D. SENIOR LEADERS AND THOSE MOST RESPONSIBLE
204. None of the Articles of both the Agreement between the United Nations and the Royal Government of Cambodia and the ECCC Law specifically defines the terms “senior leaders and those 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.
205. Therefore, the terms “senior leaders and those most responsible” should be reviewed.
206. First, let's review the terms “senior leaders.”
207. In order to clearly understand the terms “senior leaders,” the authority structure of the Democratic Kampuchea regime as written in the introductory submission dated 18 July 2007Footnote 312 should be reviewed.
1. Authority Structure of the Democratic Kampuchea Regime
208. The Co-Prosecutors stated that:
209. The CPK controlled the Democratic Kampuchea regime throughout the temporal jurisdiction of the ECCC. The Party exercised its authority and control over the country using three channels: the state organizations, the CPK administrative bodies and the Revolutionary Army of Kampuchea.Footnote 313
210. The CPK Standing Committee members and senior CPK cadre exercised de jure and de facto authority throughout Democratic Kampuchea during the Democratic Kampuchea period, both when the CPK claimed that the Royal Government of National Union of Kampuchea (RGNUK) was the government and throughout the remainder of the period.Footnote 314
211. From 17 April 1975 until 13 April 1976, the CPK maintained the illusion that the RGNUK was the government. Formally, the RGNUK participating in preparing the Constitution of Democratic Kampuchea promulgated on 5 January 1976, which established the state organisations of Democratic Kampuchea. Later, on 20 March 1976, GRUNK [sic] allegedly carried out elections to select and appoint the People's Representative Assembly of Kampuchea, to whose members RGNUK officials submitted their resignations on 6 April 1976.Footnote 315
212. On 13 April 1976, the People's Representative Assembly (PRA) purportedly selected and appointed the government of Democratic Kampuchea. The members of the CPK Standing Committee and other senior CPK cadre were appointed to the highest positions in all of the state organizations. While the PRA allegedly appointed the CPK leaders in April 1976, in reality the CPK Standing Committee had already appointed them to their posts at least by October 1975.Footnote 316
213. According to a decision of the CPK Central Committee, it was the CPK that was responsible for setting up the constitution and carrying out the elections, as well as for establishing the ORA, the Presidium of State, and the government as state organizations totally of our Party. The Standing Committee of the CPK deemed the PRA to be worthless and no evidence exists of the PRA ever passing or promulgating any laws.Footnote 317
214. The CPK was structured in a hierarchical fashion, which enabled the highest CPK administrative body, the Standing Committee of the CPK Central Committee, to create, formulate, direct, order and monitor CPK policies. The lower COK administrative organs—the Zones, Sectors, Districts and Branches—would implement and report upon these policies throughout the entire territory of Democratic Kampuchea.Footnote 318
215. The CPK employed the following methods to ensure their secrecy. CPK leaders adopted noms de guerre, and then referred to those aliases using numerical code-names, frequently changing both their aliases and numerical code-names. The top two leaders of the CPK were jointly known as the Organisation, or Angkar, although this term came to be used among the population at large to refer to any cadre who embodied the authority of the CPK. They identified geographical locations and institutions by alpha-numeric code-names such as 560 (the Northwest Zone), B-1 (the Ministry of Foreign Affairs), S-21 (the most important security centre), K-3 (an office of the Party Centre), and Po-1 (Calmette Hospital). In many cases, the CPK referred to the person in charge of a location or institution by the code number used to designate that location or institution.Footnote 319
216. While the CPK Statute vested the highest power rights throughout the country in the hands of the CPK General Conference, which was to be convened every four years, the Statute identified the CPK Central Committee as “the highest operational unit throughout the country” for the intervening four-year period. In practice, a sub-committee of the CPK Central Committee known as the CPK Standing Committee acted as the highest and most authoritative unit within the CPK and in Democratic Kampuchea.Footnote 320
217. The CPK Standing Committee exercised the authority to create, direct, execute and monitor the implementation of all policies related to the CPK and State matters. Specifically, the Standing Committee controlled policies regarding internal and external security, foreign affairs, domestic affairs including finance, commerce, industry, agriculture, health and social affairs, propaganda and re-education, and CPK and State personnel and administrative matters. The Standing Committee discussed and ordered large-scale forced movements, discussed and ordered the use of forced labour, ordered the arrest and interrogation of “enemies”, remained aware of inhumane living conditions throughout the country, and had the authority to order the summary execution of people at will.Footnote 321
218. The following members of the CPK Central Committee constituted the members of its Standing Committee: POL Pot (CPK Secretary, deceased), NUON Chea (CPK Deputy Secretary), IENG Sary, VON Vet (deceased), SAO Phim, (deceased), Ta Mok (decreased) and SON Sen (deceased).
219. The Standing Committee met frequently and regularly in whole or in part. Members of the CPK Central Committee who were not Standing Committee members, including KHIEU Samphan and other prominent CPK cadre, frequently joined in its meetings.Footnote 322
220. Office 870 monitored the implementation of Standing Committee policies. Based in Phnom Penh, Office 870 acted as a secretariat for the CPK Standing Committee. Office 870 not only transmitted Standing Committee policy directives to the lower CPK administrative bodies, but also filed and distributed reports received from the Zones and other CPK administrative bodies and RAK bodies on the overall situation and Standing Committee policy implementation throughout Democratic Kampuchea.Footnote 323
221. The Standing Committee and Office 870 worked closely with government ministries in implementing the policies of the Party. Under the leadership of members of the Standing and Central Committees, the ministries functioned as operational arms of the CPK. For example, IENFG Thirith as Minister of Social Affairs liaised directly with POL Pot, NUON Chea, KHIEU Samphan, and various Standing Committee Members.Footnote 324
222. We may conclude that the Communist Party of Kampuchea ruled the country through the Democratic Kampuchea organisation, the party administration, and the Revolutionary Army of Kampuchea. The 1976 Democratic Kampuchea Constitution and the party statute vested the highest power rights to the Communist Party of Kamupchea Central Committee. In practice, however, a sub-committee of the Central Committee known as the “Standing Committee” acted as the highest and most authoritative unit with seven members:Footnote 325
– POL Pot, CPK Secretary (deceased)
– NUON Chea, CPK Deputy Secretary
– IENG Sary, Member
– SAO Phim, Member (deceased)
– Ta Mok, Member (decreased)
– VON Vet, Member (deceased)
– SON Sen, Member (deceased)
223. These seven persons are considered senior leaders of the Democratic Kampuchea regime, but to date only NUON Chea who survives and is being tried at the ECCC. In particular, KAING Guek Eav is not a senior leader of the Democratic Kampuchea regime. Therefore, KAING Guek Eav definitely falls within the category of “those most responsible” for the crimes.
224. Based on the authority structure of the Democratic Kampuchea regime, its senior leaders are the Standing Committee members of the CPK Central Committee, including:Footnote 326
– POL Pot, CPK Secretary (deceased)
– NUON Chea, CPK Deputy Secretary
– IENG Sary, Member
– SAO Phim, Member (deceased)
– Ta Mok, Member (decreased)
– VON Vet, Member (deceased)
– SON Sen, Member (deceased)
225. And the only surviving senior leader to date is NUON Chea. Those named in the Second and Third Introductory Submissions, including AO An, were neither senior leaders nor those most responsible in the Democratic Kampuchea regime.
226. The International Co-Prosecutor stated on the 19 June 2019 hearing day that as Samdech Sok An noted that the number could be limited, could be 30, or how they could be tried before they passed away. The International Co-Prosecutor added that it was limited to roughly four to ten persons, and now we had seven, eight persons, and one was already acquitted, etc.
227. The National Judges of the Pre-Trial Chamber find that the International Co-Prosecutor's submission is groundless and contrary to the evidence given in D360/10 in relation to the statement made by His Excellency Keo Remy.
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5. Practices by the Co-Investigating Judges
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B. Viewpoints of the National Judges of the Pre-Trial Chamber on the National Co-Investigating Judge's Closing Order (Dismissal)
281. The National Judges of the Pre-Trial Chamber have considered the decision on the International Co-Prosecutor's Appeal against the Closing Order in the case against IM Chaem (PTC50) that the ECCC is a special court that applies the indictment procedure and judicial investigation different from national courts. The indictment and judicial investigation by national courts are carried out only into facts, i.e. investigating judges are seised of cases with facts contained in prosecutor's introductory submissions.Footnote 344 On the contrary, at the ECCC, an indictment is possible only when the two criteria are satisfied: (i) facts: the crimes and serious violations of 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 and (ii) individuals who were senior leaders of the Democratic Kampuchea and those who were most responsible for the crimes.Footnote 345
282. The National Judges of the Pre-Trial Chamber are of the view that the National Co-Investigating Judge carried out the judicial investigation in a comprehensive manner, on the basis of the disagreement between the Co-Prosecutors, and as a result of the investigation, AO An remains a suspect. Thus, the National Co-Investigating Judge's Closing Order (Dismissal) dismissing the case against AO An is legally justified and should be upheld.
C. Closing Order (Indictment) by the International Co-Investigating Judge
283. In the Closing Order (Indictment) dated 16 August 2018, the International Co-Investigating Judge referred to the content of the ECCC Agreement and the ECCC Law and considered the terms “senior leaders and those who were most responsible” interpreted by the Supreme Court Chamber. In paragraphs 49 to 52, and noted that by adopting the definition laid out in its judgement in Case 001, the Supreme Court Chamber also implicitly held that there is no merit in any historical-political contention that the negotiations around the establishment of the ECCC led to a joint and binding understanding that only a certain finite number of (named) individuals were to be under the Court's jurisdiction. The selection of persons to be investigated and indicted was and is purely a matter for the discretion of the Office of the Co-Prosecutor and the Office of the Co-Investigating Judge and based entirely on the merits of each individual case.Footnote 346 Both the Office of the Co-Prosecutor and the Office of the Co-Investigating Judges would have been at liberty to reject this political accord as in any way fettering their discretion under the applicable law.Footnote 347
284. The ECCC has personal jurisdiction over Ao An. He was a Khmer Rouge official during the time of the court's temporal jurisdiction and during the period when the alleged offences attributed to him occurred. While he was probably not yet at the rank of a senior leader, he was certainly one of the persons most responsible. It is thus unnecessary at this stage to resolve the issue of senior leadership fully for the purpose of determining personal jurisdiction.Footnote 348
285. The abovementioned Closing Order (Indictment), paragraph 854, states that, “A further reason against ordering detention at this time is the procedural uncertainty resulting from the opposing closing orders, as a result of which it is unclear under Internal Rule 77(13) whether the indictment will stand should there be no super-majority upon appeal in the Pre-Trial Chamber…, based on the factual findings indicated in paragraphs 157 to 589, shall be punishable according to Articles 3 (new) and 39 of the ECCC Law and Articles 501 and 506 of the 1956 Penal Code.”Footnote 349
D. Viewpoints of the Pre-Trial Chamber on the International Co-Investigating Judge's Closing Order (Indictment)
286. The views of the International Co-Investigating Judge have left no precise definition of the terms of senior leaders and those most responsible. In the meantime, there are no clear definitions in the International Co-Prosecutor's Written Statement of Facts and Reasons for Disagreement dated 20 November 2008 and the National Co-Prosecutor's Response dated 29 December 2008, specifically concerning the personal jurisdiction.
287. In the same document, point (D) senior leaders and those most responsible, paragraph 29 states that, however, while it is clear that the ECCC has jurisdiction over senior leaders and those most responsible, it is not clear about the meaning of those terms. Their definitions are not provided in the ECCC Law nor in Article 1 of the Agreement, in which very similar language is used. Also, the Internal Rules make no mention of the definition and no ECCC Chambers have ruled on the meanings of “senior leaders” and “those most responsible.” However, the meanings of senior leaders and those most responsible may be derived from (i) history of ECCC negotiations and (ii) decisions made by other criminal tribunals that have interpreted such similar terms.
288. In the Closing Order, paragraph 699, the section of legal findings on personal jurisdiction, the last part states that, “In that sense, it is certainly correct to accept an influence of the political actors on the initial list of persons to be investigated at the beginning of the ECCC's existence; however, both the OCP and the CIJs would have been at liberty to reject this political accord as in any way fettering their discretion under the applicable law.”
289. The National Judges of the Pre-Trial Chamber are of the view that the International Co-Investigating Judge's view that the Agreement between the United Nations and the Royal Government of Cambodia is a political accord is erroneous on the grounds that, from the drafting and discussion process until an agreement was reached, the legal experts representing the Royal Government of Cambodia and the United Nations have formulated legal instruments and standards in accordance with this Agreement which determines the scope of jurisdiction of the ECCC to make various laws. In this regard, the Agreement between the Royal Government of Cambodia and the United Nations is not a form of political accord as raised by the International Co-Investigating JudgeFootnote 350 since the terms applied by the International Co-Investigating Judge are contrary to the original content of the Agreement as the term accord is used in civil relations as opposed to the aforesaid Agreement.
290. Hence, both International Co-Prosecutor and International Co-Investigating Judge are required to strictly comply with the content of the Agreement. Moreover, the discretion of the International Co-Prosecutor and International Co-Investigating Judge to interpret, or broaden, and use the terms must be exercised in a narrow manner and with absolute legal terminologies (the last part of paragraph 699).
291. The International Co-Investigating Judge made use of a small part of the content of the negotiations which does not fully reflect the reality of the Agreement and the ECCC Law drafters’ ideas and relies solely on facts without having considered the principles of prosecution and investigation as stipulated in the Agreement, the ECCC Law, the Internal Rules and the Preamble and eventually indicts and sends AO An to trial unlawfully.
292. Moreover, the International Co-Investigating Judge's Closing Order (Indictment) makes no mention of the result of the investigation into the personal jurisdiction and focuses only on facts; with such investigation, all the Khmer Rouge officials would become the subject of prosecution at the ECCC. But why are only AO An and the charged persons in Cases 003 and 004 brought to trial? Is such action in line with the spirit of the Agreement and the ECCC Law? The International Co-Investigating Judge's action contradicts the subject of the disagreement between both Co-Prosecutors on the personal jurisdiction, not on facts.
293. The action taken by the International Co-Investigating Judge is also contrary to the ideas of the law drafters, the administrative structure of Democratic Kampuchea, international jurisprudence and his previous assertions.Footnote 351
294. In conclusion, the International Co-Investigating Judge's Closing Order (Indictment) sending AO An to trial erred in law and should be rejected.
G. LEGAL PRINCIPLE
1. Lacunaein Law
295. In this case, the Co-Investigating Judges issued two opposing Closing Orders and there is no law provided to resolve such a case. Hence, the Appeals against both Closing Orders fall within the lacunae in law or silence of law.
2. Principle of Interpretation of the Law
296. In order to guarantee the principle of legality, the law must be strictly interpreted and must not be extended by analogy. Article 5 of the Criminal Code provides that, in criminal matters, the law shall be strictly construed. A judge may neither extend its scope of application nor interpret it by analogy. In case of the silence of law or uncertainty in penal rules, judges may not interpret it by analogy.
297. In the event of the silence of law, judges should take into account the spirit of the drafters of the Internal Rules as to whether they had foreseen such a case where there may have had two closing orders and whether they had intended to leave lacunae in law behind or had not anticipated it. Apart from the intention of the drafters of the Internal Rules, we must also take into account the purpose of the ECCC establishment as stipulated in the ECCC purpose.
3. Principle of Legality
298. Justice Scalia,Footnote 352 former U.S. Supreme Court Judge, stated that the law should be interpreted based on the original understanding of the authors of the time it was ratified, not based on dictionaries, vocabulary, or policies at that moment. In the event that law is not interpreted based on the intention of law drafters, the principle of legality is not satisfied. In the meantime, the fundamental principle that must be taken into consideration is the principle of in dubio pro reo.
4. Legal Certainty
299. Mr. Gustav Radbruch, a legal philosopher, regarded legal certainty, justice and purposiveness as the fundamental pillars of law. In European Union law, legal certainty is a requisite. Law must absolutely be certain to the extent that it allows people, if necessary and under the right direction, to foresee the consequences of their action. In this case, however, there is no legal certainty that allows the Charged Person to foresee his fate. Were we to allow the case to proceed forward by ignoring the Dismissal Order, it would mean that we are manifestly overlooking this principle.
5. Justice Delayed is Justice Denied
300. Introductory Submission concerning AO An (Case 004) was forwarded to the Co-Investigating Judges to open investigation after 18 August 2009. The investigation was carried out until 16 August 2018 when two separate closing orders were issued concurrently, namely:
– the International Co-Investigating Judge's Closing Order (Indictment) and
– the National Co-Investigating Judge's Closing Order (Dismissal Order).
301. The investigation took almost ten years but yields no specific results, which seriously affects AO An's rights. Thus, AO An remains in doubt, and according to the general principles of law, the doubt shall benefit him.
CONCLUSION
CONSIDERATIONS OF THE NATIONAL JUDGES OF THE PRE-TRIAL CHAMBER
302. Considerations of the National Judges of the Pre-Trial Chamber:
– Considering the submissions by the parties;
– Considering all the evidence, including the debate on the ECCC draft law at the National Assembly;
– After legal deliberations;
THE NATIONAL JUDGES OF THE PRE-TRIAL CHAMBER ARE OF THE VIEW THAT:
i. The National Assembly debate session on the draft law provides additional testimony affirming the purpose of the drafters of the Agreement and the ECCC Law.
ii. The preliminary investigation by the International Co-Prosecutor was not conducted in line with the Agreement and the ECCC Law.
iii. The disagreements between both Co-Prosecutors in charging AO An and forwarding the case for judicial investigation relates only to the personal jurisdiction over [senior] leaders and those most responsible.
iv. In the statement dated 8 September 2008, the Acting International Co-Prosecutor confirmed that there was no specific plan to conduct additional preliminary investigations on other potential suspects. Therefore, the preliminary investigations into Cases 003 and 004 conducted by the International Co-Prosecutor were not legally reasoned in accordance with the ECCC Law.
v. The fact that both Co-Investigating Judges issued Two Conflicting Closing Orders is a total violation of the ECCC legal framework.
vi. The fact that both Co-Investigating Judges avoided the Disagreement which is to be solved under Rule 72 of the Internal Rules creates a shrewd obstacle which cannot be solved in accordance with the law.
vii. Rule 77(13) of the Internal Rules had not projected or raised rules to settle the stalemate resulting from the existence of the two conflicting Closing Orders such as case 004/2, and this is a lacuna or an absence of legal provision/law.
viii. In case of the absence of law and to close case 004/2 in accordance with the existing law, the National Judges of the Pre-Trial Chamber are of the view that the most appropriate solution for the fact that either of the two closing orders cannot receive majority votes, is that the Closing Order (Dismissal) is upheld under Rule 77(13) and the Closing Order (Indictment) is not effective.
ix. The Closing Order (Dismissal), which was done in accordance with the Agreement and the ECCC Law, shall be upheld.
x. The Closing Order (Indictment) was not done in line with the Agreement and the ECCC Law and shall be annulled.
FOR THESE REASONS, THE NATIONAL JUDGES OF THE PRE-TRIAL CHAMBER HEREBY DECIDE TO:
– UPHOLD the Closing Order (Dismissal);
– ANNUL the Closing Order (Indictment).
Phnom Penh, 19 December 2019
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IX. OPINION OF JUDGES BAIK AND BEAUVALLET
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AO AN'S APPEAL AGAINST THE CLOSING ORDER (INDICTMENT)
A. Ground 1: Issuance of an Indictment in Conjunction with a Valid Dismissal Order Was Based On An Error of Law
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2. Discussion
315. On 16 August 2018, the International Co-Investigating Judge issued the Closing Order (Indictment), sending AO An to trial,Footnote 393 while the National Co-Investigating Judge issued a Closing Order dismissing all charges against him.Footnote 394 The International Judges recall that the Co-Investigating Judges’ agreement on the simultaneous issuance of conflicting Closing Orders amounts to an error in law.Footnote 395
316. The International Judges observe that the Co-Investigating Judges erroneously vested themselves with authority to issue separate and contradicting Closing Orders on 18 September 2017Footnote 396 and they recorded their disagreement concerning the filing of separate and opposite Closing Orders, almost a year later, on 12 July 2018.
317. The International Judges now turn to address the validity of each Closing Order. The International Judges consider that the divergence between the International Co-Prosecutor and the Co-Lawyers in their argumentation concerning the legality of the Co-Investigating Judges’ simultaneous issuance of two conflicting Closing Orders, leading to their disparate conclusions as to which Closing Order prevails over another, stems from their erroneous reliance on a number of presumptions. The International Judges are not convinced that the Dismissal Order prevails for any of the arguments put forward by the Co-Lawyers. Neither are the International Judges persuaded by the International Co-Prosecutor's argumentation in reaching his conclusion.
318. The International Judges, for the reasons set out below, find that the two Closing Orders in question are not identical in their conformity with the applicable law before the ECCC and hold that only the Indictment is valid.
319. The International Judges first recall that one Co-Investigating Judge may validly issue an indictment by acting alone.Footnote 397 The International Judges further note Article 5(4) of the ECCC Agreement and Article 23new of the ECCC Law, which provide that in the event of a disagreement between the Co-Investigating Judges, “[t]he investigation shall proceed” unless the Co-Investigating Judges or one of them refers their disagreement to the Pre-Trial Chamber.Footnote 398
320. The International Judges observe that this principle of continuation of judicial investigation governs the issue at hand. The International Judges are not persuaded by the Co-Lawyers’ assertion that the investigation has ended and the presumption of continuation applicable during an open investigation no longer applies.Footnote 399
321. While the settlement procedure of disagreements between the Co-Investigating Judges provided by Internal Rule 72 may not be applied to the procedures after the issuance of a closing order, it does not preclude application to the procedure of issuing the closing order before the conclusion of the investigation.Footnote 400 As the Supreme Court Chamber properly noted,Footnote 401 in case one of the Co-Investigating Judges proposes to issue an indictment and the other disagrees, either or both of them can bring the disagreement before the Pre-Trial Chamber pursuant to Internal Rule 72.
322. In the case at hand, neither of the Co-Investigating Judges referred the disagreement to the Pre-Trial Chamber within 30 daysFootnote 402 from the registration of the disagreement on 12 July 2018. Consequently, the investigation or prosecution shall proceed.Footnote 403 In this specific situation where one of the Co-Investigating Judges proposes to issue an indictment and the other Co-Investigating Judge disagrees, “the investigation shall proceed” means that the indictment must be issued as proposed.Footnote 404
323. Furthermore, in examining the meaning of “the investigation shall proceed”, the International Judges find that no one may reasonably interpret this language, in its ordinary meeting and in light of its object and purpose, to include the issuance of a Closing Order (Dismissal).Footnote 405 First, in its ordinary meaning, a proposal to issue a dismissal order, the very antithesis of an indictment which makes the case move forward to trial, cannot be recognised as a separate investigative act. It is nothing more than a different characterisation of the national Co-Investigating Judge's disagreement on the issuance of the indictment, which must be resolved by the Internal Rule 72 disagreement settlement procedure. Second, the purpose of the ECCC Agreement and the ECCC Law is to bring to trial senior leaders of the DK and those who are most responsible for the crimes.Footnote 406 It is reasonably inferred from the language of Articles 5(4), 6(4) and 7 of the ECCC Agreement, Articles 20new and 23new of the ECCC Law and Internal Rules 13(5), 14 (7), 71 and 72, that the key object of the disagreement settlement mechanism is to prevent a deadlock from derailing the proceedings from moving to trial.Footnote 407
324. The International Judges, thus, find that the International Co-Investigating Judge's issuance of the Closing Order (Indictment), despite his erroneous agreement on the issuance of a simultaneous Closing Order (Dismissal) by his colleague, is procedurally in conformity with the applicable law before the ECCC, whereas the National Co-Investigating Judge's issuance of the Closing Order (Dismissal) has no legal basis.
325. The International Judges reaffirm that a closing order of the Office of the Co-Investigating Judges must be a single decisionFootnote 408 and underline that a referral of disagreements between the Co-Investigating Judges before the Pre-Trial Chamber is mandatory and that they have no other means of settling their dispute when they fail to uphold their obligation to reach a common position concerning a closing order.Footnote 409 The issuance of the conflicting Closing Order (Dismissal) by the National Co-Investigating Judge without referral to the Pre-Trial Chamber is a brazen attempt to entirely circumvent this essential and mandatory requirement. This is by no means justifiable and thus has no legal effect.
326. Accordingly, the International Judges conclude that the National Co-Investigating Judge's issuance of the Closing Order (Dismissal) is ultra vires and, therefore, void; the International Co-Investigating Judge's Closing Order (Indictment) stands.
327. Turning to the purported violation of AO An's rights to equality before the law and courts, and certain fair trial guarantees, including: the right to be presumed innocent, the right to be tried by a fair and competent tribunal, the right to be informed promptly and in detail of the nature and causes of the charges and the right to be tried without undue delay and the principle of legal certainty,Footnote 410 the International Judges consider that these arguments presuppose the confirmation of both Closing Orders.Footnote 411 Having determined that only the Closing Order (Indictment) stands, the International Judges find no merit in these arguments.
328. In the same vein, the International Judges observed that there exists no ambiguity in this regard and consider that there is no need to examine further the Co-Lawyers’ arguments relating to the principle of in dubio pro reo,Footnote 412 which is primarily a rule of proof and not of legal interpretation.Footnote 413
329. In conclusion, Ground 1 is dismissed.
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B. Ground 2: Erroneous Finding on Discretion to Determine Personal Jurisdiction
2. Discussion
333. At the outset, the International Judges reiterate that although the determination on personal jurisdiction is a discretionary decision, the discretion of the Co-Investigating Judges in making this determination does not permit arbitrary action, especially since the terms senior leaders and those who were most responsible represent the limits of the ECCC's personal jurisdiction.Footnote 422
334. In the Closing Order (Indictment), the International Co-Investigating Judge adopted the joint view expressed by the Co-Investigating Judges in the Case 004/1 Closing Order (Reasons) regarding the nature of this determination;Footnote 423 namely, that this exercise of discretion “entails a wide but not entirely non-justiciable appreciation for the [Co-Prosecutors] and [Co-Investigating Judges].”Footnote 424 The International Co-Investigating Judge therefore did not claim to have unfettered discretion to decide whether AO An is within the ECCC's personal jurisdiction, contrary to the Co-Lawyers’ assertions under this ground.Footnote 425 The Pre-Trial Chamber's Case 004/1 holding regarding the limits of this discretion,Footnote 426 summarised in the preceding paragraph, still holds true and is indeed reiterated in the standard of review section of the instant case.Footnote 427 Ground 2 is accordingly dismissed.
C. Ground 3: Overly Broad Interpretation of Those Most Responsible
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2. Discussion
347. The International Judges find that the International Co-Investigating Judge did not err in the Closing Order (Indictment) by purportedly misinterpreting or misapplying the meaning of those most responsible. The International Judges recall that the determination of whether a person falls among those most responsible is a discretionary judicial decision; left in the hands of the Co-Investigating Judges, this discretion is properly exercised when executed in accordance with well-settled legal principles.Footnote 460
348. Contrary to the Co-Lawyers’ arguments, the International Judges hold that: (i) the International Co-Investigating Judge did not err by applying any “overbroad interpretation” of those most responsible or by “ignoring” certain factorsFootnote 461 because the Co-Lawyers fail to substantiate the purported “narrow interpretation” of those most responsible; (ii) the International Co-Investigating Judge did not err concerning in dubio pro reo because this is primarily a rule of evidentiary proof (not legal interpretation) and the term most responsible is well-established.Footnote 462 Further, the International Judges are not persuaded that (iii) the International Co-Investigating Judge applied a “backward and artificial approach”Footnote 463 which inflates AO An's role through the lens of JCE I; instead, the International Co-Investigating Judge evaluated the actual contributions of AO An within the well-settled legal principles. The International Judges conclude that (iv) the International Co-Investigating Judge did not err in comparing AO An with certain Khmer Rouge members (but not others) and the Co-Lawyers fail to demonstrate that the International Co-Investigating Judge erred in assessing AO An's level of responsibility and/or the gravity of the crimes in the case-by-case analysis.
349. First, the International Judges are not persuaded that the International Co-Investigating Judge applied an overbroad interpretation of most responsible or erred in evaluating those most responsible by “ignoring” certain factors—negotiating history, subsequent party practice and views of the National Co-Prosecutor or National Judges.Footnote 464 The Co-Lawyers fail to demonstrate that those most responsible consists of the purportedly “narrow understanding” based on negotiating history, subsequent party practice or the views of certain parties.
350. The International Judges observe that although the term of those who were most responsible is not defined in the ECCC Agreement or Law, its proper interpretation—in light of the object and purpose of the Court's founding instruments—may be discerned by examining the relevant international jurisprudence.Footnote 465
351. The International Judges note that the Co-Lawyers' suggested “narrow” interpretation is based on the ECCC's negotiation history and/or statements by the negotiating parties, these are only a supplementary means of interpretation under Article 32 of the Vienna Convention to be employed where the interpretation under Article 31 leaves the meaning ambiguous or obscure or leads to an absurd or unreasonable result.Footnote 466 This is not the case here. Otherwise, the Co-Lawyers do not provide any concrete evidence or meaningful examples to support the purported “subsequent practice” demonstrating the agreement of the parties on the “narrow” interpretation.
352. The International Judges uphold, as multiple ECCC Chambers have held, that international jurisprudence establishes that the identification of persons falling into those most responsible involves a quantitative and qualitative assessment of (i) the gravity of the crimes alleged or charged and (ii) the level of responsibility of the subject.Footnote 467 The International Judges recall that there is no exhaustive list of factors to be considered in undertaking this review nor is there a filtering standard in terms of positions in the hierarchyFootnote 468 or a mathematical threshold for casualties. Rather, assessing personal jurisdiction requires a case-by-case assessment, taking into account the general context and the personal circumstances of the suspect.Footnote 469
353. The International Judges affirm that the evaluation of a suspect's level of responsibility includes considerations such as, but not limited to, his or her level of participation in the crimes, his or her hierarchical rank or position, including the number of subordinates and hierarchical echelons above, the permanence of his or her position and his or her de facto roles and responsibilities.Footnote 470 The Co-Lawyers’ “narrow understanding” of personal jurisdiction that only encompasses Khmer Rouge officials who are indispensable in settling and implementing CPK policy and who had a comparatively more significant position in the CPK and role in the most serious crimes, is too limited and wrongly diverges from the well-established approach.Footnote 471
354. Second, turning to in dubio pro reo, the International Judges affirm that this principle is primarily a rule of evidentiary proof and not a rule of legal interpretationFootnote 472 and consider that the interpretation of the term most responsible is well-established and clear.Footnote 473 The International Judges thus find no merit in the Co-Lawyers’ argument that the International Co-Investigating Judge should have applied the narrowest legal definition of those most responsible under in dubio pro reo.Footnote 474
355. Third, concerning the purported error of considering those most responsible via JCE I, the International Judges are not convinced that the International Co-Investigating Judge erred by applying a “backward and artificial”Footnote 475 approach, inflating AO An's role through JCE I. The International Judges find that the International Co-Investigating Judge did not determine personal jurisdiction solely based on alleged membership of a JCE I. He exercised his broad discretion in determining personal jurisdiction over AO An and carefully examined a myriad of relevant factors within the landscape of evidence—including, inter alia, the criminal acts of AO An, including at differing crime sites, and through multiple other modes of liability (beyond JCE I).
356. In the Closing Order (Indictment), the International Co-Investigating Judge adopted various considerations in determining whether an individual falls within the jurisdiction of the Court.Footnote 476 After finding that AO An is among those most responsible because of the combination of his rank and scope of authority in the hierarchy of the DK and based on the character and magnitude of his crimes,Footnote 477 the International Co-Investigating Judge concluded that both the position and conduct of AO An mark him out clearly as a major player in the DK structure and as a willing and driven participant in the criminal implementation of its inhuman policies.Footnote 478
357. Although the International Co-Investigating Judge assessed genocide and provided his “very conservative” minimum of 17,115 Cham victims in the Central Zone through JCE I, he also considered other modes of liabilities in this regardFootnote 479—the significant impact on the Cham community was one of the main considerations in assessing the nature and gravity of the crimes attributable to AO An.Footnote 480 The International Co-Investigating Judge also considered the other crime sites under AO An's control; these included the security centres and evacuation sites where his conservative minimum estimate was that 12,944 people were killed and worksites where thousands of people were compelled to work under extremely difficult conditions and the threat of death.Footnote 481 therefore, the International Judges conclude that the International Co-Investigating Judge did not err by applying any “backward and artificial” approach or by conflating personal jurisdiction with a mode of liability, JCE I.
358. Fourth, turning to the purported error of the International Co-Investigating Judge and comparing AO An to IM Chaem and Duch, the International Judges find that the International Co-Investigating Judge did not err in assessing AO An's level of responsibility and/or the gravity of the crimes, including in the comparison with certain Khmer Rouge officials (and not explicitly others). The International Judgest note that while the assessment of whether a suspect was among the most responsible may include comparison to other Khmer Rouge officials,Footnote 482 comparisons to every known Khmer Rouge official are not required or necessary.Footnote 483 Moreover, IM Chaem and Duch were Khmer Rouge officials whose personal jurisdiction issues as one of those most responsible were litigated before at the Chambers of the ECCC;Footnote 484 this thereby makes an objective analysis of the existence of crimes and the likelihood of criminal responsibility possible. The International Judges find no error in the International Co-Investigating Judge's comparative approach with regard to the two Khmer Rouge officials.
359. The International Judges further note that comparison to other Khmer Rouge officials in only one of a multitude of factors which the International Co-Investigating Judge properly considered. In the Closing Order (Indictment), the International Co-Investigating Judge concluded that AO An is “among those most responsible because, inter alia, of a combination of his rank and scope of authority in the hierarchy of the DK”, his conduct “as a willing and driven participant in the brutal and criminal implementation of its inhuman policies” and “the character and magnitude of his crimes”; moreover, the International Co-Investigating Judge stated that AO An's position and the nature, the geographical reach and the impact of his actions clearly surpass those attributable to IM Chaem and Duch.Footnote 485 At best, the comparison to other Khmer Rouge officials is one of a myriad of factors within the assessment but not a compelling factor in the International-Investigating Judge's considerations.
360. Accordingly, the International Judges find no error and dismiss Ground 3.
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F. Ground 6: AO An's Position in the CPK and Role in the Crimes – Introduction
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Ground 6(ii): AO An's Role in Implementing CPK Policies Compared to Other Khmer Rouge Officials
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2. Discussion
444. The International Judges consider that the Co-Lawyers’ observations that AO An did not directly communicate with the Standing Committee or General Staff or that he was not a leader of an autonomous sector do not, in themselves, establish that AO An is outside the ambit of the ECCC's personal jurisdiction. In addition, the Co-Lawyers have not established why AO An's responsibilities would have necessarily included decisions on which cadres would be sent to S-21 Security Centre if he had played an instrumental role in implementing CPK policies. To the extent the Co-Lawyers submit that involvement with or decision-making power over S-21 crimes is necessary to bring an accused person within the ambit of the most responsible persons for purposes of the ECCC's jurisdiction, the International Judges reject this position. The International Judges furthermore recall that, in determining personal jurisdiction, there is no “filtering standard in terms of positions in the hierarchy”Footnote 747 and, as discussed above, that the International Co-Investigating Judge did not err in comparing AO An with certain Khmer Rouge members but not others.Footnote 748
445. In respect of the sufficiency of evidence concerning AO An's attendance at meetings to disseminate or implement CPK policies, the International Judges hold that the Co-Lawyers have not satisfied their burden of showing that no reasonable trier of fact could have made the findings under challenge; their challenges, on the contrary, are limited to disagreements with the conclusions reached by the International Co-Investigating Judge or unsubstantiated alternative interpretations of the same evidence.Footnote 749 The International Judges, in particular, find that the evidence firmly supports AO An's role in conducting and delivering orders at various meetings on political, security and military matters,Footnote 750 in addition to meetings concerning economic matters including on forced labour worksites.Footnote 751 The evidence also sufficiently supports AO An's attendance at a meeting in Phnom Penh with senior CPK leaders where POL Pot announced that Central Zone cadres were “traitorous” during AO An's transfer from the Southwest to the Central Zone.Footnote 752 Upon review of the evidence, the International Judges find that the International Co-Investigating Judge's conclusion that AO An was “a major player in the DK structure” and “a willing and driven participate in the brutal and criminal implementation of its inhuman policies”Footnote 753 is apt and well-founded.
446. Accordingly, the International Judges find no error and dismiss Ground 6(ii).
Ground 6(iii): AO An's Role in Planning and Leading the Purge of Incumbent Central Zone Cadres and Civilians
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2. Discussion
449. The International Judges find sufficiently serious and corroborative evidence that KE Pauk and AO An, among others, devised a plan to purge cadres in the Central Zone in late 1976 to February 1977. Although the Co-Lawyers have referred to a number of witnesses stating that the purge of incumbent cadres occurred prior to the arrival of the Southwest Zone cadre group, the International Judges observed that the International Co-Investigating Judge took note of the contradictory evidence on this issue;Footnote 765 moreover, the International Judges observe that some of the witnesses that the Co-Lawyers rely on do not support their arguments.Footnote 766 The International Co-Investigating Judge, in finding that the transfer occurred sometime between “late 1976 and February 1977,” recognised the indeterminate and sometimes inconsistent evidence on the Case File.Footnote 767 The International Judges can find no error warranting appellate intervention. The International Judges additionally note that the finding that the transfer occurred around late 1976 to February 1977 is consistent with the findings that AO An announced that he was the new Sector 41 Secretary at a meeting in Wat Ta Meak in March 1977 a month or so later.Footnote 768
450. The International Judges similarly find that the evidence firmly establishes that the transfer of the Southwest Zone cadres to the Central Zone was in furtherance of the CPK policy to purge incumbent cadres perceived as “traitorous”;Footnote 769 indeed, AO An himself stated that Ta Mok sent him to the Central Zone because “[a]ll the leaders in Kampong Cham became traitors, so they had to send me over there”.Footnote 770
451. Lastly, the Co-Lawyers have not elaborated on why no trier of fact could reasonably conclude that AO An ordered or participated in the purge of cadres and civilians in Sector 41.Footnote 771 In respect of PRAK Yut's statements on whether AO An conducted the purge of former Central Zone cadres,Footnote 772 the International Judges find material inconsistencies between her statements claiming that few or no cadres were present in her district upon her arrival and her statements admitting that she removed former cadres pursuant to instructions from the sector and zone levels. Despite the inconsistencies, the International Judges do not consider that it was unreasonable for the International Co-Investigating Judge to find that AO An ordered the purge of cadres at the district and commune levels in light of the corroborative evidence from other witnesses including NHIM KolFootnote 773 and overall assessment of PRAK Yut's credibility.Footnote 774
452. The International Judges dismiss Ground 6(iii).
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Ground 6(vi): AO An's Role in the Genocide of the Cham
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2. Discussion
531. The International Judges find that the Co-Lawyers fail to demonstrate that no reasonable investigating judge could have found at AO An ordered, inter alia, district secretaries to identify, arrest and kill the Cham peopleFootnote 1020 or that he monitored the progress of these killings through reports and lists.Footnote 1021 The Co-Lawyers' challenges to PRAK Yut's credibility are ultimately unpersuasive.Footnote 1022 While PRAK Yut initially denies ever having received arrest orders from AO An,Footnote 1023 she later details that AO An ordered her and other district secretaries to identify, arrest and kill the Cham.Footnote 1024 The International Judges consider that these inconsistencies may have emanated from PRAK Yut's fear of revealing her involvement in the crimesFootnote 1025 and observe that PRAK Yut's later statements are consistent and detailed. Accordingly, it was not unreasonable for the International Co-Investigating Judge to rely on PRAK Yut's evidence here.Footnote 1026
532. In respect of further alleged inconsistencies,Footnote 1027 the International Judges observe that PRAK Yut's initial failure to mention AO An does not constitute an inconsistency. In fact, PRAK Yut mentions the Sector 41 committee, which would have necessarily included AO An.Footnote 1028 Second, the International Judges observe that PRAK Yut is forthcoming in stating that she does not know whether AO An received orders from the upper echelon and, in any event, consider that this is not inconsistent with PRAK Yut's account that she and other district secretaries received orders directly from AO An.Footnote 1029 Moreover, AO An's agreement to spare a Cham girl living under PRAK Yut's careFootnote 1030 is not inconsistent with PRAK Yut's evidence that AO An ordered her to arrest and kill all other Cham; PRAK Yut clearly indicates that AO An ordered her to list all other Cham and that no other Cham were spared.Footnote 1031 Finally, the assertion that PRAK Yut's evidence resulted from “feeding” by investigators is dismissed.Footnote 1032
533. Contrary to the Co-Lawyers’ assertions that PRAK Yut's evidence is not corroborated,Footnote 1033 the International Co-Investigating Judge relied, inter alia, on corroborative details from YOU Vann who provides credible evidence that AO An ordered PRAK Yut directly or through the Sector and District Militaries to arrest the Cham.Footnote 1034 Concerning reporting, the International Judges observe that PRAK Yut's evidence is corroborated by NHIM Kol who gives detailed incredible information on the reporting system at the village, district and sector levels.Footnote 1035 Finally, YOU Vann provides credible evidence that she personally compiled a list of Cham, that she gave the list to PRAK Yut and that PRAK Yut delivered this list to AO An.Footnote 1036 While YOU Vann's account concerning a second list is not corroborated,Footnote 1037 the International Judges consider that the International Co-Investigating Judge's reliance on her evidence was not unreasonable.Footnote 1038 The assertion that YOU Vann's evidence resulted from “feeding” by investigators is dismissed.Footnote 1039
534. In addition, the International Judges are unpersuaded by the Co-Lawyers’ contention that PRAK Yut's evidence relates to Kampong Siem District only.Footnote 1040 PRAK Yut's evidence is that AO An ordered her and the other district secretaries to arrest and smash the Cham people and that these orders were carried out in the four other districts.Footnote 1041 Contrary to the Co-Lawyers’ assertions, this evidence is further corroborated by SAY Doeun and SENG Srun who provide evidence on lists and killing orders in Kang Meas District.Footnote 1042
535. Finally, in light of AO An's role and authority as the Sector 41 Secretary and the Deputy Zone Secretary,Footnote 1043 it was not unreasonable for the International Co-Investigating Judge to conclude that AO An played a role in the operation to transfer the Cham from the East Zone to the Central Zone. Contrary to the Co-Lawyers’ assertions,Footnote 1044 the International Co-Investigating Judge based this finding on AO An's position as the Sector 41 Secretary and the Deputy Zone Secretary, and evidence that “AO An was involved in the planning of the purge of the East Zone, during which Cham were killed” and that “resources from Sector 41 (boats and trucks) [were used] to transport some of the Cham from the East Zone to the Central Zone”.Footnote 1045
536. The International Judges find that the Co-Lawyers fail to demonstrate that no reasonable trier of fact could have made the impugned factual findings. Accordingly Ground 6(vi) is dismissed.
Ground 6(vii): AO An's Role in the Forced Marriages and Rape in Prey Chhor and Kampong Siem Districts
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2. Discussion
539. The International Judges are unpersuaded by the Co-Lawyers’ assertion that AO An had “no role” in the forced marriages or alleged rape in Prey Chhor and Kampong Siem Districts.Footnote 1051 Despite the Co-Lawyers’ contention that there is “insufficient evidence demonstrating [that] AO An held the […] positions” of Sector 41 Secretary and Deputy Zone Secretary,Footnote 1052 the International Judges recall they found no error.Footnote 1053 Accordingly, the International Judges consider that the International Co-Investigating Judge did not err by relying on AO An's held positions, in conjunction with specific evidence (inter alia that AO An chaired meetings on marriage and that he presided over wedding ceremonies), when finding that AO An supported the CPK policy on the regulation of marriage and that he oversaw the CPK policy implementation in Kampon Siem and Prey Chhor Districts.Footnote 1054
540. Moreover, in relation to the finding that AO An chaired meetings on marriage, the International Judges are unpersuaded that the International Co-Investigating Judge erred by relying on uncorroborated, unspecific or misrepresented evidence.Footnote 1055 The International Judges observe that the International Co-Investigating Judge relied on SAT Pheap who is a direct witness of AO An's presence at meetings in late 1977 at Wat Ta Meak and provides specific detail of the substance of the meeting including AO An's proposed method (Pol Pot's plan) to increase the population through marriage planning.Footnote 1056 He further names AO An as the most senior official in attendance at this meeting.Footnote 1057 The International Judges find no improper practice on account of the investigators and observe that SAT Pheap's account is detailed and credible.Footnote 1058
541. The International Judges find that the International Co-Investigating Judge did not err when finding that AO An presided over “at least five” wedding ceremoniesFootnote 1059 and reject the Co-Lawyers’ reading of the evidence—that each allegation of AO An's involvement in a wedding ceremony requires direct corroboration for that event itself. The International Judges consider that the evidence from multiple witnesses implicating AO An as presiding over several wedding ceremonies is mutually corroborative. The International Co-Investigating Judge's reliance on YOU Vann and PRAK Yut's evidence,Footnote 1060 when finding that AO An presided over wedding ceremonies in Kampong Siem District and Prey Totueng District Office, was not unreasonable.Footnote 1061 The International Judges further observe that TOY Meach and TOUCH Chamroeun provide detailed first-hand evidence of AO An's presiding over wedding ceremonies, including at TOUCH Chamroeun's own wedding.Footnote 1062
542. Finally, the International Co-Investigating Judge's finding that AO An announced a policy that required married couples to consummate their marriageFootnote 1063 is supported by SAT Pheap whose evidence is that AO An stated: “after their marriage, people should love each other as married” and that they have to “produce children”.Footnote 1064 Contrary to the Co-Lawyers’ assertion,Footnote 1065 SAT Pheap's evidence is further corroborated by YOU Vann, who details that she heard from PRAK Yut that “[AO] An […] announced the rule that those who had married had to sleep together.”Footnote 1066 Finally, evidence that couples in Kampong Siem and Prey Chhor Districts (under AO An's authority as Sector 41 Secretary) were instructed to consummate their marriages,Footnote 1067 including by PRAK Yut,Footnote 1068 only supports the finding that AO An promulgated such a policy. Contrary to the Co-Lawyers’ assertions,Footnote 1069 whether or not AO An gave specific instructions to certain couples is not determinative of his responsibility.Footnote 1070
543. The International Judges find that the Co-Lawyers fail to demonstrate that no reasonable trier of fact could have made the impugned factual findings. Accordingly, Ground 6(vii) is dismissed.
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G. Ground 7: Erroneous Finding that Charged Crimes Were of Sufficient Gravity
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2. Discussion
550. The International Judges hold that it was not unreasonable for the International Co-Investigating Judge to determine that the charged crimes were sufficiently grave to conclude that AO An falls within the personal jurisdiction of the ECCC.Footnote 1088
551. First, concerning the alleged “small geographic area”,Footnote 1089 including in comparison to areas controlled by KE Pauk and Ta Mok, the International Judges are not persuaded that a small geographic area of criminality in itself or in comparison to other alleged offenders somehow must “support”Footnote 1090 the determination of most responsible. The International Judges affirm that even where crimes transpire within a “geographically limited” area, serious offences may be considered in the context of the gravity.Footnote 1091 The International Judges recall that the considerations which may be properly assessed in determining the gravity of alleged crimes have been well-delineated and implicate factors such as, inter alia, the nature and scale of the alleged or charged crimes, their impact on the victims, the number of victims, the geographic and temporal scope and manner in which they were allegedly committed, as well as the number of separate incidents.Footnote 1092 The geographic scope of the crime is one of the multiple factors, but not a determinative one.
552. In the present case, the International Judges remark that the International Co-Investigating Judge evaluated the nature of the serious offences and scrutinised relevant factors in assessing gravity: he determined inter alia that: “[i]n addition to A[O] An's elevated formal position, the gravity of his actions and the severity of their impact, in particular on the Cham community […] justify the conclusion that he was one of the most responsible.”Footnote 1093 This included considering the geographic scope of AO An's responsibility and his “defining role in orchestrating and implementing the annihilation of the Cham in the Central Zone across Sector 41 in particular”.Footnote 1094 Accordingly, the International Judges find that the International Co-Investigating Judge did not err in finding sufficient gravity within personal jurisdiction: even with a purportedly “small geographic area”.
553. Second, notwithstanding the unnecessary and improper “conservative” calculation of victim numbers,Footnote 1095 the International Judges are not persuaded by the Co-Lawyers’ contention that the International Co-Investigating Judge engaged in an approach “based on guesswork”Footnote 1096 or that he failed to provide sufficient evidence of alleged victim numbers for “the charged crimes in Sector 41 and the Central Zone.”Footnote 1097
554. The International Judges find it clear that the number of victims alleged, 17,115 Cham,Footnote 1098 are rooted in and derived from the evidence—not any purported “guesswork”.Footnote 1099 The International Judges consider particularly the Closing Order (Indictment), Annex IV – Cham Victims: this detailed chart provided by the International Co-Investigating Judge delineates the evidentiary source from which he based the victim numbers, including, for example, Sector (41, 42 or 43), district, village and commune alleged, the identity of the witness, the precise question posed and the exact response concerning the explicit number of Cham victims described.Footnote 1100
555. The International Judges further recall that there is no mathematical threshold for casualties which evidence must surpass in assessing the gravity of the crimes for determining the personal jurisdiction.Footnote 1101 Consequently, the Co-Lawyers’ allegation that “there is insufficient evidence to support the [International Co-Investigating Judge's] calculations of victim numbers”Footnote 1102 must be dismissed.
556. Third, the International Judges find that the International Co-Investigating Judge did not fail to satisfy the “legal requirements” to “impute the genocidal acts” to AO An in assessing the gravity of the crimes for the purpose of personal jurisdiction.
557. The International Judges initially remark that the Closing Order (Indictment) charges AO An for genocide against the Cham of Kampong Cham Province through JCE and, in the alternative, through planning, ordering or instigating; and in the further alternative, through superior responsibility.Footnote 1103 The International Judges further find that the International Co-Investigating Judge did not err in finding there is sufficient evidence to show that AO An is liable for the genocide against the Cham throughout the Central Zone via JCE.
558. The International Judges hold that the International Co-Investigating Judge sufficiently demonstrated a constellation of evidence bearing on AO An's connection to the alleged criminality in Sectors 41, 42 and 43, including, inter alia: that AO An formed a part of the common purpose of the JCE to kill Cham people;Footnote 1104 and that the evidence demonstrates that the genocidal acts in Sectors 42 and 43 were directly aligned with this common purpose,Footnote 1105 forming an overall pattern of ethnic targeting within the Central Zone at the relevant time. Sector 42 and 43 Secretaries were also identified as JCE members and implemented the genocidal policy to “smash” the Cham, as AO An did in Sector 41.Footnote 1106 For example, concerning the purge in Sector 42, one witness who survived, SMANN Kas, described the systematic arrests and killings and how the orders to kill came from the Sector 42 district level.Footnote 1107 Accordingly, the mosaic of evidence sufficiently demonstrates—through circumstantial and/or corroborative evidence within the totality—that the genocide in Sectors 42 and 43 is sufficiently connected to JCE members controlling those regions as part of an overarching common purpose reinforced by AO An's significant contribution.Footnote 1108 The International Judges find that the genocide against the Cham in the Central Zone through JCE is properly characterised in the Closing Order (Indictment) and sufficiently demonstrated through the evidence advanced by the International Co-Investigating Judge.Footnote 1109 The International Judges are not persuaded that any error transpired in considering the victims of Sectors 42 and 43.
559. The International Judges conclude that the International Co-Investigating Judge did not err in finding that the charged crimes were sufficiently grave in the context of the personal jurisdiction of the ECCC and dismiss Ground 7.
H. Ground 8: Application of Customary International Law in Violation of the Principle of Legality
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2. Discussion
566. The International Judges dismiss the arguments concerning the International Co-Investigating Judge's “flawed application” of law, purported overreliance on ad hoc tribunals or insufficient consideration of ICC law within customary international law because the Co-Lawyers fail to provide detailed and supported argumentation in this ground.Footnote 1127 Beyond this, the International Judges find no merit in the argument concerning lex mitior—that the International Co-Investigating Judge should have considered (or applied) recent developments in ICC laws as representative of changing customary international law, favourable to the Accused.Footnote 1128
567. Concerning the preliminary matter of the insufficiency of arguments, the Pre-Trial Chamber previously held that arguments without the potential to reverse or revise the impugned decision may be dismissed immediately.Footnote 1129 It is incumbent upon a party to provide precise references to transcript pages or paragraphs in the decision being challenged; the International Judges recall that the Pre-Trial Chamber “will not give detailed consideration to submissions which are obscure, contradictory, or vague, or if they suffer from other formal and obvious insufficiencies.”Footnote 1130
568. Here, the Co-Lawyers refer to paragraphs 63 to 120 of the Closing Order (Indictment) in purportedly demonstrating the International Co-Investigating Judge's flawed application of customary international law and his “overreliance on the jurisprudence of the [ad hoc] tribunals”.Footnote 1131 Absent detailed identification of issues in the impugned decision, the International Judges hold that referencing 57 paragraphs is insufficiently precise and, accordingly, dismiss these arguments.Footnote 1132
569. Turning to ICC developments which purportedly represent customary international law that is more favourable to the accusedFootnote 1133 and which the International Co-Investigating Judge should have considered under lex mitior,Footnote 1134 this legal issue (implicating various Grounds) is addressed here concerning all pertinent arguments for clarity and expediency.Footnote 1135
570. The International Judges consider that the Rome Statute and ICC jurisprudence are not binding at the ECCC.Footnote 1136 The Chamber and the co-investigating judges are bound by the rules and principles enshrined in the legal framework of the ECCC.Footnote 1137 The Rome Statute and ICC jurisdiction do not reflect customary international law as a whole and ICC laws cannot be applied to the ECCC absent judicial interpretation.Footnote 1138 While customary international law holds important significance, the International Judges at this time are not convinced that ICC laws or developments “represent” customary international law in a manner which the International Co-Investigating Judge is compelled to consider and adopt.Footnote 1139 As ICC laws are not binding, the International Judges must find that the International Co-Investigating Judge did not err in failing to apply more lenient developments derived from ICC laws—even those more favourable to the accused.Footnote 1140 Accordingly, the International Judges dismiss this line of reasoning entirely.Footnote 1141
I. Ground 9: Inapplicability of JCE Mode of Liability at the ECCC
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2. Discussion
575. The International Judges find that the International Co-Investigating Judge did not err in applying JCE because: (i) JCE existed in customary international law by 1975 as evidenced by state practice and opinion juris analysed by multiple Chambers of the ECCC in accordance with the ICJ's customary international law requirements; (ii) the International Co-Investigating Judge was not required to adopt co-perpetration as an alternative mode of liability because the Rome Statute is not binding on the ECCC and its provisions regarding co-perpetration do not reflect customary international law.
576. First, the International Judges affirm that JCE I as alleged in the Closing Order (Indictment) existed under customary international law by 1975.Footnote 1152 As the underlying legal concepts of JCE trace back to the Nuremberg-era documents and Judgments,Footnote 1153 the International Judges dismiss the assertions that JCE was “judicially created” at the ICTY to address “the unique circumstances facing the tribunal.”Footnote 1154 Instead, the International Judges uphold the detailed and extensive analysis of customary international law by multiple Chambers of the ECCC and reaffirm the finding that JCE is applicable at the ECCC in the instant case.Footnote 1155
577. The International Judges recall that in determining the state of customary international law in relation to the existence of a mode of liability “a court shall assess the existence of ‘common, consistent and concordant’ state practice, [and] opinio juris”.Footnote 1156 The International judges find that this requirement is met and contrary to the allegation of the Co-Lawyers, the International Judges are not convinced that the analysis was “too limited and insignificant” to satisfy requirements for customary international law.Footnote 1157
578. The International Judges consider that in previous judgments and decisions, the ECCC Chambers carried out a “careful, reasoned view”Footnote 1158 of ad hoc tribunal holdings on JCE (and abstained from adopting JCE III from ICTY), rather than adopting them in their totality.Footnote 1159 The ECCC Chambers independently reviewed post-World War II instruments and jurisprudence, and appropriately attached particular weight to the Nuremberg Charter, Control Council Law No. 10 and relevant post-World War II war crimes cases.Footnote 1160 The International Judges therefore consider that the jurisprudence relied on by Chambers of the ECCC satisfies the “ICJ's requirements for [customary international law]”Footnote 1161 and the International Co-Investigating Judge did not err in relying on JCE.
579. Second, the International Judges are not persuaded that the International Co-Investigating Judge erred by ignoring purportedly “widespread and consistent State practice that JCE is not open brackets customary international law]”Footnote 1162 or by failing to adopt the ICC's doctrine of co-perpetration—involving the element of essential contribution—as an alternative motive liability.Footnote 1163 The International judges consider that the Rome Statute is not a binding instrument here.Footnote 1164 Moreover, contrary to the position of the Co-Lawyers,Footnote 1165 the statutory interpretation of a crime or mode of liability by ICC Chambers does not necessarily reflect customary international law.Footnote 1166 The International Judges consider that the ICC's interpretation of Article 25(3)(a) as requiring that the perpetrator must have a de minimus level of control over the crime by virtue of his or her essential contribution to [the crime] (“control over the crime theory”)Footnote 1167 is one such instance where the ICC has interpreted its own statute rather than existing customary international law.Footnote 1168 Thus, as the principle of lex mitior only concerns laws binding upon the court,Footnote 1169 the International Co-Investigating Judge did not err in applying JCE here. Accordingly, Ground 9 is dismissed.
J. Ground 11: Inapplicability of Planning Mode of Liability at the ECCC
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2. Discussion
583. The International Judges find that no error transpired in applying Planning in the Closing Order (Indictment). The International Judges affirm that state practice and opinion juris evidence that Planning is properly applicable as a mode of liability to all criminal acts (not only crimes against peace)Footnote 1177 as is demonstrated by, inter alia, (i) the Nuremberg Tribunal and (ii) the Cambodian Penal Code of 1956. Moreover, the International Judges are not convinced at this time that (iii) international instruments—which have no bearing on the crystallisation of Planning as a mode of liability (e.g., the Genocide Convention or the Rome Statute)—may impact and abolish the existence of Planning within customary international law.
584. First, consistent with state practice and opinio juris within customary international law, the International Judges find that Planning emerged as a mode of responsibility in the aftermath of World War II and was first enshrined in the Nuremberg Charter in 1945—applicable to all crimes.Footnote 1178 The first paragraph of Article 6 of the Nuremberg Charter expressly mentions, in the context of individual criminal responsibility, a prohibition concerning crimes against peace, listing among prescribed conduct: “[…] planning, preparation, initiation […]”.Footnote 1179 The final paragraph in Article 6, contrary to the Co-Lawyers’ assertion of Planning's exclusive applicability to crimes against peace, reinforces this principle of Planning for all the crimes within the Tribunal's jurisdiction, articulating that: “[l]eaders, organisers, instigators, and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan”.Footnote 1180 Similarly, the Control Council Law No. 10 from 1945 enshrines criminal responsibility for individuals connected with plans or enterprises involving the commission of crimes.Footnote 1181
585. The International Judges underline that Planning was retained as one of the modes of responsibility to convict accused persons for crimes against humanity at the Nuremberg Tribunal, which confirms that this mode of liability was properly enforced by 1975–1979, as articulated in Article 6 of the Nuremberg Charter.Footnote 1182 The International Judges find that even if the word “planning” is not always explicitly used in the aforementioned instruments, the conduct referred to—such as participating in the formulation or design of a common plan or conspiracy—falls within the scope of the definition of Planning that was crystallised by the ad hoc Tribunals and the ECCC's jurisprudence.Footnote 1183
586. Consequently, the International Judges concur with the findings of the Trial Chamber and the Supreme Court Chamber that the provisions of Article 29new of ECCC Law—including Planning as a mode of responsibility—properly qualify as customary international law recognised since the Nuremberg cases of 1945 and has been reaffirmed ever since.Footnote 1184
587. Second, the International Judges recall that the Cambodian Penal Code of 1956, one source of law directly binding on the ECCC,Footnote 1185 explicitly criminalises the planning and preparation of a criminal conduct.Footnote 1186 The 1956 Penal Code evidences the existence of Planning as a proper mode of responsibility in 1975–1979, as well as its foreseeability and accessibility to the Accused.Footnote 1187
588. Third, concerning the absence of Planning in certain international instruments, the International Judges find that the Genocide Convention does not impact the existence of Planning and is otherwise irrelevant because that Convention is aimed at articulating the underpinnings of genocide only, without a focus on modes of liability in the context of customary international law.Footnote 1188 Moreover, the Rome Statute (including the absence of Planning in certain sections) is not a binding instrument at the ECCC;Footnote 1189 its provisions do not always reflect customary international lawFootnote 1190 and cannot impact the existence of Planning within customary international law, originally from the Nuremberg Tribunal. Accordingly, Ground 11 is dismissed.
K. Ground 12(i): Inapplicability of Superior Responsibility in AO An's Case
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2. Discussion
592. The International Judges find that the International Co-Investigating Judge did not err in applying superior responsibility or violate the principle of legality. Contrary to the Co-Lawyers’ submissions, the International Judges affirm that (i) the ECCC Chambers sufficiently established that superior responsibility existed within customary international law in 1975–1979—demonstrating state practice and opinion of opinion juris.Footnote 1198 Further, the International Judges find that (ii) applying superior responsibility is not contingent on whether charges against civilians under superior responsibility are linked to an international armed conflict but, rather, centers on the responsibility of the individual.Footnote 1199
593. First, the International Judges uphold the Chamber's prior findings and concur with the ECCC Chambers concerning the existence of superior responsibility within customary international law and dismiss the argument of purportedly insufficient evidence.Footnote 1200 Examining the ECCC cases and the law, the International Judges uphold that superior responsibility existed as a mode of liability within customary international law in 1975–1979.Footnote 1201 The International Judges find no reason to deviate from the settled jurisprudence in the instant case.
594. Second, the International Judges are not persuaded that “charges against civilians under superior responsibility must be linked to an international armed conflict”.Footnote 1202 The International Judges find that whether alleged acts transpired within an international armed conflict merely affects the characteristics of crimes; superior responsibility hinges not on the connection between an accused and the armed conflict or even on the existence of the conflict but, rather, centers on the responsibility of the individual, including, inter alia, a person's role within a hierarchy, knowledge, obligations and/or failure to act.Footnote 1203
595. Accordingly, Ground 12(i) is dismissed.
I. Ground 13: Whether the ECCC has Jurisdiction to Prosecute National Crimes Committed between 1975–1979
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2. Discussion
599. The International Judges recall that Article 109 of the 1956 Penal Code establishes a ten-year limitations period for felonies, five years for misdemeanours and one year for petty offences. These run from the date of commission of the crime and are interrupted by judicially-ordered acts of investigation or prosecution. In the absence of any such act, the limitations period in relation to the domestic crimes charged in this case expired, at the latest, ten years after the conclusion of the indictment period, namely on 6 January 1989.Footnote 1211
600. However, as the International Co-Investigating Judge noted,Footnote 1212 the Pre-Trial Chamber in Case 002 unanimously found that the ECCC's jurisdiction to prosecute national crimes committed during 1975–1979 is not barred by the statute of limitations.Footnote 1213 As the Chamber explained, “[t]he underlying principle of statutes of limitations is to provide for a time frame within which criminal proceedings must be instituted. As such, it presupposes that judicial institutions operate effectively, so proceedings can be instituted.”Footnote 1214 The Chamber accordingly adopted the Trial Chamber's “unanimous finding [in Case 001] that statutes of limitation do not run where the judicial institutions are not functioning.”Footnote 1215 Since it has been established “that between 1975 and 1979, there was no legal or judicial system in Cambodia, and accordingly that no criminal investigations or prosecutions or possible during that period […] the limitation period therefore did not commence between these dates.”Footnote 1216
601. With respect to the period subsequent to the fall of the Khmer Rouge, the Pre-Trial Chamber further adopted the findings of the three Cambodian Trial Chamber Judges that “from 1979 until 1982, the judicial system of the People's Republic of Kampuchea did not function at all” as it had been destroyed by the DK regime, and that from 1982 “until the Kingdom of Cambodia was created by the promulgation of its Constitution on 24 September 1993, a number of historical and contextual considerations”, including, inter alia, civil war, the ongoing peace process and the continuing international recognition of the Khmer Rouge as Cambodia's government, “significantly impeded domestic prosecutorial and investigative capacity”.Footnote 1217 As a result, the 10-year statutory limitations period for domestic crimes provided for in the 1956 Penal Code started to run, at the earliest, on 24 September 1993.Footnote 1218 Hence, it would have expired in 2003, barring any interruption.
602. However, Article 3 of the ECCC Law promulgated in 2001 purported to extend the statute of limitations for domestic crimes within the Court's jurisdiction by 20 years, while Article 3new, adopted as an amendment to the ECCC Law in 2004, increased the extension to 30 additional years. The International Judges recall, in this regard, that although the reinstatement of the right to prosecute after the statute of limitations has already elapsed might violate Article 15(1) of the ICCPRFootnote 1219 and the principle of legality, the extension of the statute of limitations before its expiry is a matter of state policy and does not violate the principle of legality.Footnote 1220 Accordingly, since the ten-year statute of limitations for domestic crimes has not expired before Article 3 of the ECCC Law extended it in 2001, “the extension by the National Assembly in 2001 and 2004, respectively for 20 and then 30 years, did not violate the principle of legality”.Footnote 1221
603. The International Judges therefore find that the national crimes for which AO An has been charged are not statute barred; Ground 13 is accordingly dismissed.
M. Ground 15(i): Forced Marriage not under the Jurisdiction of the ECCC
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2. Discussion
…
606. The International Judges are not persuaded by the Co-Lawyers’ submissions and find that their arguments contradict well-established law because: (i) other inhumane acts existed as a crime within customary international law prior to and during l975–1979;Footnote 1229 (ii) there is no need to establish forced marriage as a separate criminal act (or to rely on human rights law to do so);Footnote 1230 and (iii) forced marriage may fall within the accepted definition of other inhumane acts and this case-by-case analysis would occur in-depth at trial.Footnote 1231 The International Judges find that it is sufficient to establish that the overarching category of other inhumane acts was a crime under customary international law and that, as such, its elements were foreseeable and accessible to the Accused.Footnote 1232
607. First, the International Judges reaffirm here the well-settled law that the crime of other inhumane acts had attained customary international law status by the requisite and relevant time period of 1975–1979.Footnote 1233 This is supported by evidence of opinio juris and state practice, such as the inclusion of this norm in treaty law since 1945 and its application in post-World War II cases.Footnote 1234 Subsequent tribunals have confirmed the customary nature of other inhumane acts and in their assessment, relied on sources predating 1975.Footnote 1235
608. Multiple Chambers within the ECCC have held that it was foreseeable and accessible that other inhumane acts were punishable as a crime against humanity by 1975.Footnote 1236 Applying the notion of ejusdem generis (of the same kind),Footnote 1237 the Pre-Trial Chamber found that the elements of the crime of other inhumane acts were sufficiently clear and specific by 1975.Footnote 1238 It was established and generally understood “that an individual may be held criminally responsible for committing crimes which are ‘similar in nature and gravity’ to the other listed crimes against humanity.”Footnote 1239
609. Considering the above, the International Judges find that the underlying acts or sub-categories within other inhumane acts (such as forced marriage) do not have to be criminalised because the principle of legality “attaches to the entire category of ‘other inhumane acts’ and not to each sub-category of this offence.”Footnote 1240 To require that the underlying conduct of forced marriage must be criminalised, would render the concept of other inhumane acts as a residual category of crimes against humanity ineffective and futile.Footnote 1241
610. Second, as there is no requirement to establish forced marriage as a distinct crime, the International Co-Investigating Judge's purported error in relying on human rights law is irrelevant and without merit.Footnote 1242 The International Judges find that the International Co-Investigating Judge properly articulated that “the conduct underlying ‘other inhumane acts’ need not have been criminalised under international law.”Footnote 1243
611. Third, examining the alleged conduct underpinning forced marriage includes an assessment of whether the facts are of a similar nature and gravity to other enumerated crimes under other inhumane acts.Footnote 1244 This question must be considered on a case-by-case basis with due regard for the individual circumstances of the case.Footnote 1245 Factors to consider in analysing the similar nature and gravity to other enumerated crimes may include, inter alia, “the nature of the act or omission, the context in which it occurred, the personal circumstances of the victim, including age, sex and health, as well as physical, mental and moral effects of the act upon the victim.”Footnote 1246 The International Judges consider that this analysis requires an in-depth assessment of the totality of the evidence which is best left to trial.
612. Therefore, the International Judges find that the International Co-Investigating Judge did not err and that other inhumane acts existed as a crime under customary international law in 1975–1979 and the relevant elements of the crime were foreseeable and accessible to the Accused. Ground 15(i) is accordingly dismissed.
N. Ground 16(ii) and (iii): Incorrect Definition and Application of the Elements of Genocide
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2. Discussion
618. The International Judges find that the International Co-Investigating Judge did not err in applying the elements of genocide because: (i) the Closing Order (Indictment) identified and defined the protected group (the Cham) as such; and (ii) the Closing Order (Indictment) presented sufficiently serious and corroborative evidence that AO An possessed the specific intent required for genocide. The following will address in turn Grounds 16(ii) and 16(iii).
619. First, turning to the issue of defining the Cham protected group as such, the International Judges affirm the essential nature of this requirement which is enshrined within Article 2 of the Genocide Convention and Article 4 of the ECCC Law which delineate protected groups as “national, ethnical, racial or religious group[s], as such”.Footnote 1266 The perpetrator's destructive intent must be based specifically on the victim's membership in the group, not on the individuality of the victim.Footnote 1267 It follows that the protected group must have a particular identity and be defined as such by its common characteristics rather than a lack thereof. A protected group cannot be defined by negative criteria.Footnote 1268
620. In the instant case, the International Judges find that the International Co-Investigating Judge did not err and identified the Cham as such, including as a distinct entity targeted for their specific religious and ethnic characteristics. The International Judges dismiss the arguments in this regard and consider that the Co-Lawyers have selectively identified instances that refer to a broader victim group whereas the Closing Order (Indictment) clearly identified the Cham as the protected group, defining them as such.Footnote 1269
621. It is evident from the Closing Order (Indictment) that the CPK objective to create a “politically and ideologically pure party and society”Footnote 1270 or to establish a “classless, atheist and ethnically homogenous society”Footnote 1271 was to be achieved through the targeting of positively identified groups, including the Cham. The International Judges hold that this objective was not achieved through negative identification, such as ‘non-Khmer’.
622. The Closing Order (Indictment) identified the Cham people as a “distinct ethnic and religious group within Cambodia”;Footnote 1272 it referred to the group's particular and “common characteristics”Footnote 1273 which are distinguishable from the Khmer majority as demonstrated by, inter alia, their religion, language, and culture.Footnote 1274 Subsequently, the Closing Order (Indictment) identified the CPK policy (and its implementation) of targeting the Cham on the basis of these criteria through, for example, arrests, transfers and killings.Footnote 1275 In addition, the Closing Order (Indictment) detailed AO An's alleged role in the targeting of the Cham.Footnote 1276 The International Judges find that the above cannot be defined as or otherwise constitute the purported negative approach to identifying the protected group—the Cham.
623. Second, turning to Ground 16(iii) and the purported failure of the International Co-Investigating Judge to demonstrate specific genocidal intent, the International Judges recall that the mens rea for genocide requires “not only proof of the intent to commit the underlying act, but also proof of the specific intent to destroy the group, in whole or in part”.Footnote 1277 This specific intent is also known as genocidal intent, dolus specialis or special intent.Footnote 1278
624. The International Judges consider that “[b]y its nature, intent is not usually susceptible to direct proof”Footnote 1279 and instead must be inferred from relevant facts and circumstances such as, inter alia, “the general context, the perpetration of other culpable acts systematically directed at the same group, the scale of atrocities committed, the systematic targeting of victims on account of their membership in a particular group or the repetition of destructive and discriminatory acts.”Footnote 1280
625. The International Judges are unpersuaded, at this stage of the proceedings, that “to prove an individual's state of mind by inference, it must be the only reasonable inference available on the evidence”.Footnote 1281 The International Judges affirm that “pursuant to Internal Rule 67, the test for issuing closing orders is the existence of “sufficient evidence […] of the charges”.Footnote 1282 At this pre-trial stage, it is sufficient for the International Co-Investigating Judge to present “serious and corroborative evidence”.Footnote 1283
626. The International Judges hold that the International Co-Investigating Judge is not required to disprove all other reasonable inferences as this would amount to imposing a higher standard of proving the Accused's mental state beyond a reasonable doubt, as if at trial.Footnote 1284 Therefore, if the inference on the genocidal intent drawn from evidence by the International Co-Investigating Judge is sufficiently reasonable, the standard of proof at this stage would be met. The mere fact that he did not consider the other allegedly “reasonable” inference does not constitute a failure to demonstrate the genocidal intent in the Closing Order (Indictment).
627. Bearing in mind this evidentiary standard applicable in pre-trial proceedings, the International Judges find that the International Co-Investigating Judge presented a sufficiently reasonable inference that AO An possessed the requisite specific intent (including, inter alia, beyond mere knowledge of the crimes committed against the Cham).Footnote 1285 The evidence clearly demonstrates that AO An, as Sector 41 Secretary, Deputy Zone Secretary and Member of the Central Zone Committee, shared the common purpose of implementing the CPK policy of targeting the Cham in the Central Zone of DK; AO An was aware of all CPK activities in his sector and zone.Footnote 1286
628. Specifically, AO An was the primary person responsible for implementing CPK policies in Sector 41 and, indeed, implemented the genocidal policy to target the Cham in the area under his control.Footnote 1287 AO An ordered his subordinates to compile a list of the Cham and to arrest and kill all of them;Footnote 1288 AO An monitored the progress of the killing operation through meetings and a reporting system.Footnote 1289 He also played a significant role in the operation to transfer the Cham from the East Zone to the Central Zone, where they were to be killed, while planning the purge and providing resources for it.Footnote 1290 A minimum of 7,910 Cham were killed in Sector 41 as a result of the operation.Footnote 1291 Based on these facts and circumstances, the International Judges conclude that the inference of AO An's specific intent to destroy the Cham is sufficiently reasonable to meet the standard of proof at the closing order stage.
629. Moreover, the International Judges are unpersuaded by the Co-Lawyers’ other “reasonable inference”, that AO An's blind dedication to the CPK party led him to doggedly pursue the execution of his tasks without genocidal intent; the evidence that AO An (as Sector 41 Secretary, Deputy Zone Secretary and Member of the Central Zone Committee) implemented the genocidal policy in the region under his control by planning, ordering and monitoring the massive transfer and killing operation of the Cham, effectively defeats the Co-Lawyers’ contention.Footnote 1292
630. Accordingly, Grounds 16(ii) and 16(iii) are dismissed.
O. CONCLUSION FOR AO AN'S APPEAL
631. For the foregoing reasons, the International Judges conclude that the International Co-Investigating Judge did not commit errors or abuses fundamentally determinative of the exercise of his discretion in finding that AO An was amongst the most responsible for the crimes committed during the period from 17 April 1975 to 6 January 1979. The International Judges accordingly uphold the International Co-Investigating Judge's Closing Order (Indictment) and find that AO An is subject to the ECCC's personal jurisdiction.
632. The International Judges note that Count 1 of the Indictment in the International Co-Investigating Judge's Closing Order commits AO An for trial for the crime of genocide “Against the Cham of Kampong Cham Province”,Footnote 1293 which includes within its scope Cham victims in both the Central Zone and the East Zone. However, AO An may not be tried for genocide against the Cham in the East Zone. On 16 December 2016, the International Co-Investigating Judge decided to reduce the scope of the investigation against AO An and excluded facts concerning the arrests and executions of Cham in the East Zone pursuant to Internal Rule 66bis.Footnote 1294 In his Closing Order (Indictment), the International Co-Investigating Judge also formally terminated the judicial investigation concerning these excluded facts and did not provide factual findings regarding genocide of the Cham in the East Zone.Footnote 1295 The International Judges recall that facts excluded pursuant to Internal Rule 66bis “shall not form the basis for charges” against the person named for investigation.Footnote 1296 Genocide against the Cham in the East Zone should not be included among the Crimes in the Indictment. Consequently, the International Judges amendFootnote 1297 Count 1 of the Indictment to provide that AO An is indicted and committed to trial for the crime of genocide against the Cham of Kampong Cham Province in the Central Zone.Footnote 1298
633. The International Judges uphold the remaining Counts as set out in the International Co-Investigating Judge's Indictment. AO An is accordingly indicted and committed to trial in proceedings before the Trial Chamber.
…
CONCLUSION
…
Security Measures
688. In his Closing Order (Indictment), the International Co-Investigating Judge considered that provisional detention was not necessary within the meaning of Internal Rule 63(3)(b).Footnote 1449 He also considered that another reason was “the procedural uncertainty resulting from the opposing closing orders”. Footnote 1450 The Co-Investigating Judge did not contemplate any other security measure at his disposal.
689. AO An is charged with the most serious of crimes, namely genocide, crimes against humanity, and murder. Moreover, the International Co-Investigating Judge noted that the acts implicated were directly or indirectly related to the deaths of tens of thousands of people.Footnote 1451 He faces a heavy sentence of imprisonment for these charges.
690. In view of the foregoing, the International Judges consider that the reasoning of the International Co-Investigating Judge was undermined by two serious errors.
691. In considering that no security measure was necessary, the International Co-Investigating Judge committed a first error. Indeed, it is advisable to avoid putting any pressure on witnesses, especially those who have benefited from a letter of guarantee issued by the Co-Investigating Judge. It is also necessary to bring AO An to justice. Finally, in view of the disturbance to public order, both national and international, caused by acts so detrimental to humanity that they cannot be subject to statutory limitation, a measure of provisional detention or another security measure available to the International Co-Investigating Judge was imperative.
692. The Pre-Trial Chamber unanimously held that the Co-Investigating Judges violated the applicable law by issuing two conflicting Closing Orders.Footnote 1452 To claim to rely on the procedural uncertainty caused by the intentional joint violation of the applicable law by the Co-Investigating Judges is tantamount to committing further errors in law, especially when the International Co-Investigating Judge fails to consider other security measures which are available to him. Such shortcomings further demonstrate the willingness of the International Co-Investigating Judge to avoid any measure that could have given greater meaning and effectiveness to his Order.
693. Pursuant to Internal Rule 44 and the facts on the record, the International Judges find that the International Co-Investigating Judge erred in failing to properly consider the issuance of an arrest warrant.
DISPOSITION
694. Given the lack of the supermajority in the Chamber and the exceptional situation of the Appeals against conflicting Closing Orders, the International Judges consider it imperative to clarify the subsequent procedures following these Considerations to ensure legal certainty, transparency of proceedings and the interests of justice.
FOR THESE REASONS, THE INTERNATIONAL JUDGES HEREBY:
Finding that the Closing Order (Indictment) is not being reversed by supermajority and stands,
ȓ APPROVE that AO An be sent for trial as provided in the Closing Order (Indictment), as hereby amended;
ȓ FIND that the Trial Chamber be seised on the basis of the Closing Order (Indictment) under Internal Rule 77(13)(b).
Phnom Penh, 19 December 2019
