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07Aug14


Conviction of Khmer Rouge leaders for crimes against humanity
Full text of judgment in Case 002/01 of Nuon Chea and Khieu Samphan


Extraordinary Chambers in the Courts of Cambodia
Chambres Extraordinaires au sein des Tribunaux Cambodgiens

E313

Kingdom of Cambodia
Nation Religion King

Royaume du Cambodge
Nation Religion Roi

Trial Chamber
Chambre de première instance

Case File/Dossier No. 002/19-09-2007/ECCC/TC

Before: Judge NIL Nonn, President
Judge Silvia CARTWRIGHT
Judge YA Sokhan
Judge Jean-Marc LAVERGNE
Judge YOU Ottara
Greffiers: LIM Suy-Hong, Matteo CRIPPA, SE Kolvuthy, EM Hoy, Roger PHILLIPS, Sophie MAURICE, Robynne CROFT
Duration of hearing: 21 November 2011 until 31 August 2013
Date: 7 August 2014
Original language(s): Khmer/English/French
Classification: PUBLIC


Case 002/01 Judgement


Co-Prosecutors
CHEA Leang
Nicholas KOUMJIAN
Accused
NUON Chea
KHIEU Samphan
Civil Party Lead Co-Lawyers
PICH Ang
Marie GUIRAUD/Elisabeth SIMONNEAU-FORT (until 31/5/14)
Lawyers for the Defence
SON Arun
Victor KOPPE
KONG Sam Onn
Arthur VERCKEN
Anta GUISSÉ


TABLE OF CONTENTS

1. INTRODUCTION

2. PRELIMINARY ISSUES

3. HISTORICAL BACKGROUND

4. GENERAL OVERVIEW: 17 APRIL 1975 - 6 JANUARY 1979

5. ADMINISTRATIVE STRUCTURES

6. COMMUNICATION STRUCTURE

7. ROLES AND FUNCTIONS - NUON CHEA

8. ROLES AND FUNCTIONS - KHIEU SAMPHAN

9. APPLICABLE LAW: CRIMES AGAINST HUMANITY

10. MOVEMENT OF THE POPULATION (PHASE ONE)

11. MOVEMENT OF THE POPULATION (PHASE TWO)

12. TUOL PO CHREY

13. APPLICABLE LAW: INDIVIDUAL CRIMINAL RESPONSIBILITY

14. JOINT CRIMINAL ENTERPRISE

15. THE CRIMINAL RESPONSIBILITY OF NUON CHEA

16. THE CRIMINAL RESPONSIBILITY OF KHIEU SAMPHAN

17. CUMULATIVE CONVICTIONS

18. SENTENCING

19. CIVIL PARTY REPARATIONS

20. DISPOSITION


1. INTRODUCTION

1. The Trial Chamber of the Extraordinary Chambers in the Courts of Cambodia ("Chamber" and "ECCC", respectively), seised of Case File 002/19-09-2007/ECCC/TC ("Case 002"), renders its Judgement against NUON Chea and KHiEU Samphan in Case 002/01.

1.1. Brief Procedural Overview of the Case

2. On 18 July 2007, the Co-Prosecutors filed an Introductory Submission pursuant to Internal Rule 53 alleging that NUON Chea, IENG Sary, KHIEU Samphan, IENG Thirith and KAING Guek Eav alias Duch committed various crimes within the jurisdiction of the ECCC. |1| On 19 September 2007, the Co-Investigating Judges ordered the severance of the charges under investigation into two case files: Case 001, the scope of which was limited to the allegations against KAING Guek Eav concerning S-21, and Case 002 which incorporates all remaining charges. |2| On 26 July 2010, KAING Guek Eav was convicted of crimes against humanity and grave breaches of the Geneva Conventions. |3| The Co-Investigating Judges dismissed the charges against KAING Guek Eav in Case 002 on 14 September 2010. |4|

3. Between 19 September and 19 November 2007, NUON Chea, IENG Sary, KHIEU Samphan and IENG Thirith were arrested by order of the Co-Investigating Judges, transferred to the ECCC detention facility and notified of the charges against them. |5| On 15 September 2010, following a three-year judicial investigation during which 3,866 persons were admitted as Civil Parties, the Co-Investigating Judges charged the Accused for crimes against humanity, genocide, grave breaches of the Geneva Conventions and violations of the 1956 Penal Code. |6| On appeal, the Pre-Trial Chamber confirmed the extensive Closing Order, with some amendments, formally remitting the four Accused to trial on 13 January 2011. |7|

4. Following resolution of applications for release on bail and having received requests by the parties to hear a cumulative total of 1,054 witnesses and to tender approximately 7,600 documents, the Trial Chamber held a Trial Management Meeting on 5 April 2011 with a view to expeditiously commencing trial proceedings. An initial hearing took place between 27 and 30 June 2011 in order to provide early indications to the parties of priority witnesses, experts and Civil Parties for the earliest phases of Case 002. |8| The Chamber also heard submissions on numerous preliminary objections to jurisdiction. Those considered as constituting a barrier to the commencement of trial were decided over the months that followed. |9| In particular, having decided that it was not validly seised with the offences in the 1956 Penal Code in the dispositive part of the Closing Order in Case 002, and that trial in relation to these domestic crimes cannot proceed, the Trial Chamber granted IENG Sary's motion to strike out that part o the Closing order insofar as it pertains to the trial of domestic crimes before the ECCC. |10|

5. On 22 September 2011, in order to safeguard its ability to reach a timely judgement in Case 002 given the length and complexity of the Closing Order as well as the physical frailty and advanced age of all Accused, the Chamber issued a severance order pursuant to Internal Rule 89ter. This severance order limited the scope of the first trial in Case 002 to factual allegations described in the Closing order as movement of population (phases one and two) and crimes against humanity committed in their course. |11| The Chamber subsequently expanded the scope of Case 002/01 to include the executions of former Khmer Republic officials at Tuol Po Chrey. |12|

6. In February 2011, NUON Chea and IENG Thirith requested that experts be appointed to assess their fitness to stand trial. |13| The Chamber appointed medical experts for this purpose in April 2011. |14| On 17 November 2011, the Chamber found IENG Thirith unfit to stand trial due to the impact of a progressive, dementing illness (most likely Alzheimer's disease) and ordered the severance of the charges against her from Case 002, a stay of the proceedings against her and her release. |15| The Chamber found NUON Chea fit to stand trial on 15 November 2011 |16| and reaffirmed his fitness on 29 March 2013. |17| IENG Sary and KHIEU Samphan did not contest initial expert reports concluding that they were fit to stand trial. |18| Following periods of hospitalisation and remote participation, however, the Chamber again appointed experts to evaluate IENG Sary's fitness in August and November 2012. |19| Based on the resulting expert reports, the Chamber found IENG Sary fit to stand trial on 26 November 2012. |20| IENG Sary's death on 14 March 2013 extinguished all criminal and civil actions against him. |21|

7. Opening statements in Case 002/01 commenced on 21 November 2011. On 8 February 2013, following the Co-Prosecutors' appeal against the Trial Chamber's refusal to expand the scope of the trial to include S-21 and District 12, the Supreme Court Chamber annulled the Trial Chamber's severance order and all related decisions. |22| Accordingly, the Trial Chamber invited further submissions from the parties on the envisaged scope of trial in Case 002/01. |23| On 29 March 2013, the Chamber again severed the proceedings in Case 002, limiting the scope of Case 002/01 to crimes against humanity committed during the course of movement of population (phases one and two), and the executions of Khmer Republic officials at Tuol Po Chrey. |24| The Trial Chamber again identified the specific paragraphs of the Closing Order relevant to Case 002/01. |25| Trial proceedings in Case 002/01 resumed on 8 April 2013.

8. The hearing of evidence in Case 002/01 concluded on 23 July 2013 after 214 hearing days. The parties submitted Closing Briefs on 26 and 27 September 2013. They made Closing Statements between 16 and 31 October 2013.

1.2. Summary of the Charges against the Accused

9. The Closing Order alleges that, between 17 April 1975 and 6 January 1979, NUON Chea, alias "Brother Number Two", served as Deputy Secretary of the Communist Party of Kampuchea ("CPK") Central and Standing Committees and at times also filled various other roles within the government of Democratic Kampuchea, including Minister of Propaganda and Information, Acting Prime Minister, Chairman of the People's Representative Assembly ("PRA") and Chairman of the Standing Committee of the PRA. |26|

10. The Closing Order alleges that, between 17 April 1975 and 6 January 1979, KHIEU Samphan, alias "Haem", "Hem", "Khang" and "Nan", had various positions and roles in the CPK and Democratic Kampuchea including President of the State Presidium, Chairman of Political Office 870 and member of the CPK Central Committee. |27|

11. The Closing Order alleges that, while serving in these various capacities, the Accused committed (via a joint criminal enterprise) the crimes against humanity of murder, political persecution and other inhumane acts comprising forced transfer and attacks against human dignity during movement of population (phase one); political persecution and other inhumane acts comprising forced transfer and attacks against human dignity during movement of population (phase two); and murder and extermination of Khmer Republic Officials at Tuol Po Chrey. |28| The Closing Order further alleges that the Accused planned, instigated, ordered, aided, abetted and/or were responsible as superiors for the following crimes against humanity falling within the scope of Case 002/01: murder; extermination; persecution on political grounds; and other inhumane acts comprising attacks against human dignity, forced transfer and enforced disappearances. |29|

2. PRELIMINARY ISSUES

2.1. Jurisdiction

12. Following the signing of the Agreement between the united Nations and the Royal Government of Cambodia on 6 June 2003, the Cambodian parliament adopted the "Law on the Establishment of Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed during the Period of Democratic Kampuchea" which was promulgated in its final version on 22 October 2004. |30| According to Article 2(1) of the Agreement and Articles 1 and 2 (new) of the ECCC Law, the ECCC has personal jurisdiction over "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 international conventions recognised by Cambodia, committed between 17 April 1975 and 6 January 1979. |31|

13. The Co-Investigating Judges ruled that they had personal jurisdiction over NUON Chea and KHIEU Samphan, finding that they were senior leaders of Democratic Kampuchea and/or those most responsible for crimes committed between 17 April 1975 and 6 January 1979. |32| These findings were not challenged before the Pre-Trial Chamber.

14. KHIEU Samphan nevertheless maintains that the ECCC has no personal jurisdiction over him. He contends that during the Democratic Kampuchea regime he was never a political decision maker, nor did he have effective or operational power even when he became nominal head of state as President of the State Presidium. |33| The power and control the Accused had as a member of the CPK Central Committee or as head of state are matters of fact relevant to a determination of his criminal responsibility and therefore cannot constitute a barrier to jurisdiction at the trial stage. Additionally, according to the overwhelming weight of the evidence and by their own admission, the Chamber finds that the Accused were Khmer Rouge officials between 1975 and 1979. |34| The Chamber therefore affirms that it has personal jurisdiction over NUON Chea and KHIEU Samphan.

15. The crimes against humanity with which the Accused are charged in Case 002/01, allegedly committed between 17 April 1975 and 6 January 1979, fall within the subject-matter and temporal jurisdiction of the ECCC as defined in Articles 1 and 9 of the Agreement and Articles 1 and 5 of the ECCC Law.

2.2. The Principle of Legality

16. Both the Cambodian and international principles of legality, connected with the general principles of nulla poena sine lege (no penalty without law) and nullum crimen sine lege (no crime without law), require that the law concerning crimes and modes of criminal liability be clear, ascertainable and non-retrospective. |35| Thus, in the specific context of the ECCC, the principle of legality requires that the offences and modes of responsibility charged must be recognised under Cambodian or international law as it existed between 17 April 1975 and 6 January 1979, and sufficiently foreseeable and accessible to the Accused. |36| This principle does not prohibit a Chamber from interpreting and clarifying the law or from relying on those decisions that do so in other cases, even where those cases post-date the period under review. It does, however, prevent a Chamber "from creating new law or from interpreting existing law beyond the reasonable limits of acceptable clarification." |37|

17. KHIEU Samphan and NUON Chea submit that the ECCC does not have jurisdiction to try international crimes because the ECCC is not an international tribunal where international law is directly applicable and crimes against humanity did not constitute criminal offences under national law at the time they were allegedly committed. They also claim that, in any case, international customary law did not, at the time of the offence, provide a detailed definition of the crimes and the applicable punishment as required by the principle of legality. |38| The Chamber finds no merit in these submissions.

18. As a matter of principle, an accused is not relieved of criminal responsibility under international law merely because an international crime is not proscribed by national law. |39| Where national law does not provide the specific characteristics of an international crime, a court may rely on international law without violating the principle of legality. |40| It is clear that, in accordance with the Agreement, the Cambodian lawmakers intended to grant the ECCC jurisdiction over crimes against humanity as defined in international law and that such definition was considered directly applicable before the Chamber. |41| The Constitutional Council has deemed the ECCC Law to be valid, including its provisions granting the ECCC jurisdiction over international law. |42|

19. The Chamber notes that Article 9 of the Agreement defines crimes against humanity by reference to the Rome Statute, while Article 5 of the ECCC Law does not make such reference in its definition of the crimes. The Supreme Court Chamber has already ruled that the jurisdiction of the ECCC over crimes against humanity is limited by the definition of the crimes as it stood under international law at the time of the alleged criminal conduct. |43| Therefore, neither Article 5 of the ECCC Law, nor Article 9 of the Agreement, can be interpreted as a retroactive amendment to that definition. |44| The Chamber therefore affirms that it has jurisdiction over those international crimes identified in the ECCC Law which satisfy the principle of legality.

20. Insofar as the Trial and Supreme Court Chambers did not previously evaluate whether the crimes and modes of responsibility at issue in Case 002/01 were recognised in domestic or international law by 1975, the Chamber does so in this judgement. |45| The Chamber also considers whether the relevant crimes and modes of responsibility were sufficiently foreseeable and accessible to the Accused. |46|

2.3. Evidentiary and Procedural Principles

2.3.1. Introduction

21. The 2007 Cambodian Code of Criminal Procedure governs proceedings before the ECCC. Guidance may also be drawn from international law in situations where existing procedures do not deal with a particular matter, there is uncertainty regarding their interpretation or application, or where they may be inconsistent with international standards. |47| The Internal Rules consolidate the Cambodian procedures applicable before the ECCC and adopt international procedure in order to ensure justice, fairness and due process of law. |48| Within this framework, the Chamber must "ensure that trials are fair and expeditious [...] with full respect for the rights of the accused and for the protection of victims and witnesses". |49|

2.3.2. Burden and Standard of Proof

22. The Accused are presumed innocent until proven guilty. |50| The Co-Prosecutors bear the burden of proof. |51| In order to convict, the Chamber must be convinced of an accused's guilt "beyond reasonable doubt". |52| In order to resolve any discrepancy between the different language versions of Internal Rule 87(1) that reflect the common law "beyond reasonable doubt" standard and the civil law concept of "intime conviction", the Chamber has adopted a common approach that evaluates the sufficiency of the evidence. Upon a reasoned assessment of the evidence, the Chamber interprets any doubt as to guilt in the Accused's favour. |53|

2.3.3. The Case File

23. The Trial Chamber was seised with the Case File following resolution of all appeals against the Closing Order on 13 January 2011. |54| Material on the Case File, but not ultimately put before the Chamber pursuant to Internal Rule 87, is not relied upon by the Chamber in considering the Accused's guilt. |55| Once notified of the charges, a Charged Person and after an indictment, an Accused, has on-going access to the Case File throughout the proceedings. |56| Thus NUON Chea has had access to the Case File since 19 September 2007 and KHIEU Samphan since 19 November 2007. |57|

2.3.4. Admissibility of Evidence

2.3.4.1. Legal Framework

24. Unless provided otherwise, all evidence is admissible |58| and, subject to the criteria set out in Internal Rules 87(3)-(4), the parties may propose the admission of any evidence at any stage of the trial. |59| The Chamber has broad discretion in determining the witnesses to be heard and the evidence to be admitted. |60|

25. All evidence must be summarised, read out or otherwise appropriately identified. |61| Prior to the commencement of the trial, the Chamber may order all parties to file initial lists identifying, briefly describing and indicating the relevance of all proposed evidence. |62| All proposed evidence not available at the time the Chamber is seised with the case is considered "new" evidence subject to the requirements of Internal Rule 87(4). Parties must demonstrate that new evidence was not available prior to the opening of the trial and/or could not have been discovered earlier with the exercise of reasonable diligence. |63| Before placing new material on the Case File, the Chamber must determine if it is conducive to ascertaining the truth. |64|

26. The Chamber may reject any material that is irrelevant or repetitious, impossible to obtain within a reasonable time, unsuitable to prove the facts it purports to prove, not allowed under the law or intended to prolong proceedings. |65| Thus evidence put before the Chamber must be prima facie relevant and reliable. The parties must have the opportunity to subject evidence to adversarial debate and to object to the admission of evidence, even if they do not avail themselves of this opportunity. |66|

2.3.4.2. Sources of Evidence Put Before the Chamber

2.3.4.2.1. Evidence of the Accused

27. Following opening statements, the substantive hearing commenced with statements by and questioning of the Accused in the order named in the Closing Order. |67| Pursuant to Internal Rules 21(1)(d) and 90(1), the President informed each Accused, prior to his opening statement, of his fundamental right to remain silent. |68| In addition to those statements foreseen in the Internal Rules, when the Accused were willing to respond, the Chamber put all questions it considered pertinent, whether or not they would tend to prove or disprove the guilt of the Accused. The parties were also provided an opportunity for questioning the Accused. |69| The Accuseds' statements constitute evidence before the Chamber. |70|

28. KHIEU Samphan made an opening statement and gave evidence on 13 December 2011 and 12 January 2012, but thereafter declined to answer questions, indicating that he first wanted to hear the evidence against him. |71| In May 2013, KHIEU Samphan responded to questions posed by some Civil Parties. |72| On 9 July 2013, KHIEU Samphan again invoked his right to remain silent. |73| On 31 October 2013, KHIEU Samphan made a final statement. |74|

29. Between December 2011 and April 2012, NUON Chea made various statements and responded to questions from the Chamber and parties. |75| On 18 April 2012, NUON Chea invoked his right to remain silent. |76| NUON Chea made additional statements and responded to questioning on various occasions between June 2012 and July 2013. |77| NUON Chea again invoked his right to remain silent on 17 July 2013. |78| NUON Chea made a final statement on 31 October 2013. |79|

2.3.4.2.2. Evidence of Civil Parties, Witnesses and Experts

30. By virtue of their special status, Civil Parties were not required to take an oath. |80| Witnesses were informed of their right not to self-incriminate and, upon request, were assisted by counsel. |81| Expert opinion was also heard by the Chamber on specific technical issues, to assist it in understanding evidence presented during trial. |82|

31. The Chamber admitted written witness, expert and Civil Party statements and transcripts from prior proceedings in conjunction with or in place of oral evidence. Prior statements of witnesses, experts and Civil Parties heard at trial were admitted before the Chamber. |83| Beginning in June 2012, in the interests of expeditiousness, the President began asking witnesses and Civil Parties appearing in court to affirm the accuracy of their prior statements made to the Office of the Co-Investigating Judges, and as reflected in the written records of interview. Upon affirmation, while noting that the parties have the right to test a witness's credibility on areas within or beyond his prior statements, the Chamber invited the parties to ask further questions only where there was a need for clarification relevant to matters that are insufficiently covered by these statements or not dealt with during questioning before the Co-Investigating Judges. |84| Absent the opportunity for examination, the Chamber excluded statements going to proof of the acts and conduct of the Accused as alleged in the Closing Order. Exceptionally, the Chamber admitted statements going to proof of the Accused's acts and conduct as charged where the witness was deceased, thereby preventing the opportunity for confrontation. For example, TCW-699 died before the close of the hearing, preventing the Chamber from hearing him. Instead, the Chamber admitted his prior statement, noting that it would not base any conviction decisively thereupon and thereby safeguarding the rights of the Accused. |85|

32. Over the course of Case 002/01, 92 individuals appeared before the Chamber concerning the substantive matters at issue including 58 witnesses (of whom, five were character witnesses called on behalf of KHIEU Samphan), three experts and 31 Civil Parties. Five appeared by video-link. |86| The Chamber admitted 1,124 written statements and transcripts of witnesses and Civil Parties who did not appear before the Chamber in place of oral testimony. |87|

2.3.4.2.3. Documentary Evidence

33. Following the opportunity for public, adversarial debate, the Chamber admitted 5,824 pieces of documentary evidence, including contemporaneous and analytical documents, audio and video recordings and the written evidence of witnesses, experts and Civil Parties. |88|

2.3.5. Final Assessment of the Evidence

2.3.5.1. Probative Value

34. The Chamber bases its findings on evidence put before it and subjected to adversarial debate. |89| In conjunction with final submissions, the Chamber considers objections to the probative value of evidence made at trial, particularly those that went beyond the prima facie relevance and reliability of proposed evidence. |90| Various factors are relevant to the probative value of evidence including the criteria set out in Internal Rule 87(3), |91| the circumstances surrounding the creation or recording of evidence, whether the original or a copy was admitted, legibility, discrepancies with other versions, deficiencies credibly alleged, whether the parties had the opportunity to challenge the evidence and other indicia of reliability including chain of custody and provenance. |92| The Chamber also considers the identification, examination, bias, source and motive - or lack thereof - of the authors and sources of the evidence. |93| Absent the opportunity to examine the source or author of evidence, less weight may be assigned to that evidence. |94|

35. In order to convict, all reasonable inferences that may be drawn from the evidence must be consistent with the guilt of the accused. |95| Additionally, certain evidence admitted for a limited purpose, such as proof that a statement was obtained through torture, may be relied upon only for that limited purpose and not as to the truth of the statement. |96|

36. The Chamber ordered the parties to ensure that all admitted evidence was available in all three official languages of the ECCC by the filing of Closing Briefs. An exception applied to certain categories of evidence which self-evidently did not require translation. |97| Nevertheless, when the parties filed their Closing Briefs on 26 September 2013, various documents put before the Chamber remained on the Case File in only one or two official languages of the ECCC. In the interests of justice, the Chamber still considers this evidence in reaching its judgement. However, the Chamber only relies on such evidence where it is corroborated by another reliable source. Additionally, the Chamber considers whether the Accused have demonstrated an understanding of the evidence or have relied upon such evidence in their submissions before the Chamber. |98|

2.3.5.2. Spelling of Names and Locations

37. The spelling of certain names and locations on the Case File at times differ due to a number of factors ranging from a source's origins, pronunciation of a name or its subsequent interpretation. The Chamber accepts that names and locations with similar, but not identical, spelling may refer to the same individuals or places. Further, given the Cambodian practice of adopting different names, as well as the prevalence of aliases and revolutionary names within the CPK, the Chamber notes that some individuals had various appellations. |99|

2.3.5.3. Interpretation, Translation and Transcription Discrepancies

38. Even with the safeguards and levels of review employed at the ECCC, errors in interpretation, translation and transcription may occur. The Interpretation and Translation Unit (ITU) and various Judges and Chambers took measures throughout the proceedings in an effort to reduce the number of errors and provide for their correction upon identification. |100| Throughout the investigation and trial, the Defence had access to interpreters and translators. All parties had capabilities in all three official languages of the ECCC |101| and therefore were well-positioned to identify errors in translation and transcription and request their correction. |102| Where relevant, the Chamber took these errors into account in assessing probative value.

2.3.5.4. Classified Information

39. At the conclusion of closing submissions, 5,102 documents and other materials put before the Chamber pursuant to Internal Rule 87(3) remained 'confidential'. The vast majority of this material retains the classification automatically assigned during the judicial investigation. Reclassification of material generated by, and collected during, the judicial investigation no longer poses a generalised risk of prejudice to the rights of the parties or the integrity of the investigation. |103| Nevertheless, certain justifications for non-disclosure continue to be valid. |104| Thus, in reaching its judgement and publicly relying upon and/or referring to classified information, the Chamber considers whether, beyond the confidentiality of the judicial investigation, any justification for such classification exists. |105| The Chamber, on its own motion, determined that confidentiality is no longer justified for that information publicly disclosed in this judgement. |106|

2.4. Fair Trial Rights

2.4.1. Introduction

40. Over the course of the proceedings in Case 002/01, NUON Chea and KHIEU Samphan alleged violations of their rights to a fair and impartial investigation and trial. The Chamber addressed these allegations on a case-by-case basis, providing relief where it was in the interests of justice. Although both Accused had initially signalled their intent to answer the parties' and the Chamber's questions at the conclusion of the hearing of evidence, they ultimately refused to do so, citing as a basis for this refusal the Chamber's alleged violation of their fair trial rights throughout the proceedings. |107| The Accused further developed these submissions in their Closing Briefs and Closing Statements requesting the Chamber to dismiss all or part of the charges, stay the proceedings and/or consider alleged violations of their rights in the final assessment of the evidence. |108|

41. The Chamber addresses these submissions below, taking decisions as required to supplement those already taken during the course of the trial. The Chamber will also examine whether procedural errors, if any, have a cumulative effect on the overall fairness of the trial. |109|

2.4.2. Alleged Defects in the Judicial Investigation

42. Repeating arguments and submissions made previously over the course of the proceedings in Case 002/01, in their Closing Statements, the Accused submit that the judicial investigation was so impaired by procedural defects and tainted by political interference that the Trial Chamber could not rely on it without infringing the right of the Accused to a fair trial. |110| The Chamber has already ruled that, during the pre-trial stage, the Accused had made extensive use of the procedural safeguards existing in the ECCC legal framework to address alleged defects in the investigation either before the Co-Investigating Judges or on appeal to the Pre-Trial Chamber. The Accused have also failed to satisfy the Trial Chamber that alleged procedural defects or allegations of government interference had a tangible impact on Case 002/01. |111| Appeals against these decisions were dismissed by the Supreme Court Chamber. |112| The Accused allege no new facts or circumstances arising since these decisions were issued and their requests, which amount to requests for reconsideration of these prior decisions, are therefore inadmissible. Nevertheless, where defects in the investigation were alleged with sufficient particularity and have clear relevance to Case 002/01, the Chamber will consider them in its final assessment of the evidence. |113|

2.4.3. Impartiality of the Trial Chamber

43. NUON Chea challenges the impartiality of the Trial Chamber, as well as the sufficiency of measures taken to counter alleged improper pressure and interference. |114| These challenges repeat submissions previously made in Case 002/01, which were deemed unsubstantiated and dismissed. |115| In February and August 2012, the Accused alerted the Chamber to public pronouncements of senior government officials concerning the guilt of the Accused and the rights of the defence. |116| Both the Supreme Court and Trial Chambers issued warnings against further improper pronouncements by senior government officials, affirmed the impartiality of the Trial Chamber and emphasised the duty and ability of the Chamber to disregard these statements in considering the alleged guilt of the Accused. |117| NUON Chea alleges no new facts or circumstances arising since these decisions were issued and what amounts to a request for reconsideration of these prior decisions is therefore inadmissible. The Chamber nevertheless re-affirms its impartiality and that it will disregard any irrelevant information not put before it pursuant to Internal Rule 87 in reaching its judgement.

2.4.4. Facilities and Time Available for the Preparation of a Defence

44. The Accused raise a number of issues related to the time and facilities available for preparation of a defence including belated translations into their working languages, equality of arms between the Co-Prosecutors and the Defence, and the period between notification of the charges and deadlines for proposing evidence. |118| Each of these issues has already been addressed by the Chamber and relief has been provided where it was in the interests of justice (for example, the provision of interpreters and adjustment of relevant procedures). Considering in particular the lengthy judicial investigation, the Chamber re-affirms that the Accused had proportional and adequate time and facilities for the preparation of a defence throughout the proceedings. |119| The parties also had procedural equality in presenting their case and the Accused have failed to substantiate any violation of the principle of equality of arms. |120| The Accused allege no new facts or circumstances arising since prior decisions concerning the time and facilities available for preparation of a defence and what amounts to requests for reconsideration of these prior decisions by the Accused are therefore inadmissible.

2.4.5. Notice of the Charges and the Conduct of the Trial in Case 002/01

45. The Accused argue that the severance of the Closing Order was unmanageable and that uncertainty regarding the contours of Case 002/01, division of the trial into topical segments, uncertainty concerning the admissibility of evidence outside the scope of Case 002/01, and uncertainty concerning future trials impaired their ability to present an effective defence. |121|

46. On 5 April 2011, the Chamber notified the parties that it would commence the trial by hearing evidence relating to the structure of Democratic Kampuchea, the roles of each Accused during the period prior to the establishment of Democratic Kampuchea, the roles of each Accused in the Democratic Kampuchea government, and the policies of Democratic Kampuchea. |122| Subsequently, on 3 June 2011, the Chamber indicated that evidence of facts falling outside the scope of Case 002/01 was admissible if demonstrably relevant. |123| Throughout the proceedings, the Chamber admitted evidence of facts outside the scope of Case 002/01 where it was demonstrably relevant to proof of, inter alia, the Democratic Kampuchea policies alleged in the Closing Order, the contextual elements of crimes against humanity or the impact of crimes on victims. |124|

47. On 22 September 2011, the Chamber severed the charges in Case 002, notifying the parties of the scope of Case 002/01 and informing them that additional charges could later be included within the scope of Case 002/01. |125| On 18 October 2011, the Chamber clarified that, although the development of the five policies as a general matter fell within the scope of, and could be examined in Case 002/01, there would be no examination of the implementation of policies other than those pertaining to the specific factual allegations falling within the scope of Case 002/01. |126| The same day, the Chamber also notified the parties of the topical and procedural sequence in which the Chamber would hear the evidence in Case 002/01. |127| Following the first two trial segments concerning the historical background, Democratic Kampuchea policies and administrative and communication structures, the Chamber began hearing evidence relating to the factual allegations falling within the scope of Case 002/01 and the responsibility of the Accused on 2 October 2012.

48. On 8 October 2012, the Chamber extended Case 002/01 to include executions of former Khmer Republic officials at Tuol Po Chrey. |128| After the Supreme Court Chamber annulled the Trial Chamber's severance order and all related decisions, |129| the Trial Chamber consulted the parties as directed by the Supreme Court Chamber and decided again to sever the case along the lines previously determined. |130| The hearing of evidence concerning executions at Tuol Po Chrey commenced the week of 29 April 2013.

49. In sum, the Chamber provided the parties sufficient, timely and clear notice of the charges falling within the scope of Case 002/01 and the conduct of the trial. The Chamber also re-iterates that generalised submissions concerning the scope and conduct of future trials in Case 002 cannot demonstrate any concrete impact on the fairness of the trial in Case 002/01. |131|

2.4.6. Right to Propose Witnesses

50. NUON Chea argues that the Chamber preferred inculpatory witnesses and failed to call witnesses important to his Defence. |132| Both Accused argue that the Chamber failed to provide reasons for its decisions not to call certain witnesses, thus obliging the Accused to speculate and adopt a splintered approach to their defence. |133|

51. In response to the Trial Chamber's Preparation Order of 17 January 2011, the parties proposed a cumulative total of 1,054 witnesses. |134| In considering which of these individuals to summons, the Chamber weighed the rights of all parties to propose evidence, the need to hold a public hearing following the confidential investigation, the Accused's right to confront witnesses and the right of each Accused to a fair and expeditious trial. |135| During the Initial Hearing in June 2011 and during Trial Management Meetings in April 2011, August 2012 and June 2013, the Chamber provided the parties indications as to those witnesses it intended to call or not call in relation to upcoming segments of the trial, invited oral and written submissions, and repeatedly encouraged parties to indicate those witnesses they deemed most vital to their cases. |136| All individuals requested by the parties were kept under review over the course of the trial.

52. Ultimately, the Chamber heard 92 individuals, including 20 proposed by NUON Chea and 23 proposed by KHIEU Samphan (the latter including 5 character witnesses). The majority of the other individuals proposed by NUON Chea and KHIEU Samphan, including some identified as vital, were rejected as being irrelevant to Case 002/01 (and accordingly deferred to future trials); irrelevant to Case 002 generally (including many proposed regarding the course and conduct of the judicial investigation or in support of general allegations regarding the independence of the judiciary and political interference); repetitive; or inadequately identified. |137| The Chamber also notes that some witnesses proposed by the Accused died prior to the conclusion of the evidentiary hearing in Case 002/01 (see e.g. TCW-482 and TCW- 699) or could not be located with the exercise of reasonable diligence. |138| Other mechanisms were nonetheless provided to enable the parties to introduce in written form relevant statements and other information concerning witnesses not called or the topics upon which they had been expected to testify. |139|

53. In order to show that fair trial rights have been violated as a result of the nonappearance of a witness, an accused must demonstrate that he exhausted all available measures to obtain that witness's testimony or tender the evidence sought in another form, such as a witness statement. |140|

54. The Chamber considers that all parties were able to propose those witnesses they deemed most important to their case and, where those witnesses were not called, to put before the Chamber other evidence they considered to be exculpatory or conducive to ascertaining the truth, including witness statements. Pursuant to Internal Rule 84(4), the parties may appeal decisions concerning the summonsing of witnesses, experts and Civil Parties only at the same time as the final appeal from the judgement. |141|

2.4.7. Ability of the Defence to Place the Crimes in their Context

55. NUON Chea argues that limitations on the hearing of evidence concerning the historical context of the crimes hindered his ability to mount a full and effective Defence. In particular, he submits that historical topics including the American bombing of Cambodia between 1969 and 1973, living conditions in Cambodia prior to 1975 and the post-1979 political context (insofar as it relates to the collection of evidence and the role Vietnam played in recording the history of the CPK "to suit its political agenda") should have been included in order to permit the Chamber to assess the context of his actions. He also submits that the Co-Prosecutors were permitted to adduce evidence of the historical context, while he was not, thus violating the principle of equality of arms. |142|

56. Where an accused argues that his fair trial rights were violated by limitations on his ability to adduce evidence concerning the historical context of the crimes, he must demonstrate concrete prejudice, namely how it would impact on his guilt or innocence. |143|

57. The first trial segment in Case 002/01 focused on the historical context of the crimes. During this segment and throughout the trial, the Chamber heard evidence concerning the American bombing campaign in Cambodia between 1969 and 1973, living conditions prior to 17 April 1975 and the post-1979 context from witnesses and experts, including seven proposed by NUON Chea. Various pieces of documentary evidence, proposed by all parties and relevant to the historical context (including the American bombing campaign in Cambodia between 1969 and 1973, living conditions prior to 17 April 1975 and the post-1979 context) were also admitted. |144|

58. The Chamber notes that it is bound by the facts contained in the Closing Order pursuant to Internal Rule 98(2), as severed in Case 002/01, and its obligation to ensure that trials are fair and expeditious. The Chamber therefore excluded some evidence of facts falling outside the scope of Case 002/01 or the Closing Order, including some relating to the historical context. |145| NUON Chea, however, fails to demonstrate either that the evidence admitted concerning the historical context of the crimes was insufficient or how other evidence would have had a concrete impact on his guilt or innocence. Indeed, NUON Chea indicated that he chose not to fully explore the historical context and other matters outside the scope of Case 002/01, in part, as a matter of strategy, not inability. |146| Accordingly, the Chamber finds that the rights of the Accused to present a defence were not violated.

2.4.8. Right to Examine Witnesses, Civil Parties and Experts

59. The Accused submit that their right to effectively examine witnesses, Civil Parties and experts and the principle of equality of arms were infringed by arbitrary and unfair limitations on the scope of questioning and the material that could be used to challenge the credibility of the individuals heard in court. |147| Further, NUON Chea and KHIEU Samphan argue that the Chamber violated their rights by admitting statements and prior testimony of witnesses, Civil Parties and experts absent the opportunity for confrontation. |148|

60. Pursuant to Internal Rules 85 and 87, the President and Chamber excluded proceedings and lines of questioning that unnecessarily delayed the trial or were not conducive to ascertaining the truth. The Chamber encouraged all parties to limit their examination of persons called at trial to matters falling within the scope of Case 002/01. |149| Further, taking into account the capacity in which individuals were called to give evidence, the Chamber limited the scope of questioning in order to ensure that examination did not stray into irrelevant topics. |150|

61. All parties were permitted to use any of the documents on their Internal Rule 80(3) lists in questioning individuals to refresh their memory, corroborate or draw relevant inferences from the substance of a document based on their direct knowledge or to test credibility. |151| Further, all parties were able to propose new evidence for use during questioning provided that they satisfied the requirements of Internal Rule 87(4) or demonstrated that the proposed evidence was in the interests of justice, for example because it was exculpatory or related closely to the testimony of a witness. |152| Finally, in the interest of just and expeditious proceedings, the Chamber admitted statements of certain individuals not called to give oral evidence, noting that no conviction would be solely or decisively based thereupon. |153| For example, the Chamber admitted statements of witnesses and Civil Parties in place of their oral evidence insofar as such statements were relevant to proof of matters other than the acts and conduct of the Accused as charged in the Closing Order, including the historical background, administrative and communications structures, the crime base, Democratic Kampuchea policies, the impact of the crimes on victims and/or the contextual elements of crimes against humanity. |154|

62. Insofar as the Accused allege unfair limitations on their ability to challenge evidence and examine witnesses, they fail either to demonstrate prejudice or that they exhausted other available means, for example by submission in rebuttal or the proposal of documentary evidence. The Chamber finds that the right of the Accused to challenge evidence and examine witnesses was not infringed.

2.4.9. Right to Adversarial Debate

63. KHIEU Samphan argues that the key document presentation hearings were limited to presentation of documents and excluded real adversarial debate, since the opportunity to challenge the entirety of the evidence submitted at trial can take place only at the end of the hearing. |155| Further, KHIEU Samphan and NUON Chea argue that the time and facilities provided for closing submissions were insufficient considering the thousands of documents admitted in Case 002/01 (particularly those admitted late in the trial), the appearance of 92 individuals, the complexity of the case and discrepancies in translations. |156|

64. A court may provide the opportunity for adversarial debate in various ways, but "whatever method is chosen, it should ensure that the other party will be aware that observations have been filed and will get a real opportunity to comment thereon". |157| For the reasons that follow, the Chamber decides that the parties have had the opportunity for adversarial debate.

2.4.9.1. Initial Lists of Evidence (Internal Rule 80(3))

65. Following a judicial investigation lasting more than three years during which the Accused had access to the Case File including the inculpatory and exculpatory information collected, the Chamber ordered the parties to file lists of proposed evidence by 13 April 2011 pursuant to Internal Rule 80(3). |158| Following the severance of Case 002 and again after the extension of the trial to include executions of former Khmer Republic officials at Tuol Po Chrey, the Chamber directed the parties to file revised lists of evidence relevant to the factual allegations falling within the scope of Case 002/01. |159| On an on-going basis, the Chamber admitted that evidence which was relevant to various topic segments and witnesses. Where the Co-Prosecutors or Civil Party Lead Co-Lawyers failed to exercise reasonable diligence in presenting evidence, thereby impeding the opportunity for adversarial challenge, the Chamber excluded that evidence. |160| In the absence of demonstrated prejudice, an accused is expected to rely on the initial lists of evidence provided by the other parties in preparing and presenting his case. |161|

2.4.9.2. Admissibility Hearings

66. The Chamber provided the parties the opportunity to object to the admissibility of evidence in oral and written submissions throughout the proceedings, |162| inviting and entertaining submissions from the parties as to the time and facilities required to adequately make such objections. |163| Even though objections that go beyond the prima facie relevance and reliability of proposed evidence do not impact upon their admissibility, the parties availed themselves of these opportunities to make detailed submissions on matters relevant to probative value and thus weight to be assigned to evidence at the conclusion of proceedings. The Chamber considers these submissions and objections in its final assessment of the evidence. |164|

2.4.9.3. Key Document Presentation Hearings

67. After having invited and considered submissions from the parties as to the time necessary for presentation of key documents, the Chamber provided the parties a proportional opportunity in four different hearings, totalling 16 days, to highlight those documents they deemed most relevant to particular segments of the trial. |165| As documentary evidence at the ECCC need not be tendered during the examination of individuals appearing before the Chamber, these hearings were intended to assist the Chamber and the parties in identifying those documents particularly relevant to a given trial segment and provide public accessibility to the documentary aspect of the trial. |166|

68. During the first two key document presentation hearings, all counsel were precluded from responding to those documents presented by the other parties. |167| The Accused, however, were given the opportunity to comment on the key documents presented. |168| During the second two key document presentation hearings, the Chamber permitted all parties and counsel to comment on the documents presented. |169| Further, during the final key document presentation hearing, the Accused and their counsel were given the opportunity to comment on all documents presented in any key document presentation hearing and invited indications as to the time required to do this. |170| KHIEU Samphan and his counsel declined to avail themselves of this opportunity. |171|

2.4.9.4. Closing Submissions

69. On 3 August 2012, the Chamber notified the parties that it proposed an expedited schedule for final submissions and directed the parties to allocate the necessary resources to enable them to prepare their final briefs in parallel with the on-going trial. |172| The parties were given the opportunity to make submissions concerning the procedure for closing submissions during a Trial Management Meeting on 27 August 2012.

70. In October and November 2012, the Chamber notified the parties of the procedure and schedule for closing submissions. |173| Closing Briefs were limited to 200 pages for the Co-Prosecutors, 80 pages for the Civil Party Lead Co-Lawyers and 100 pages for each Accused and were due 30 days following the last day of the substantive hearing in Case 002/01. |174| The parties also had the opportunity to file separately 20-page submissions on the applicable law by 21 December 2012. |175| In the event the parties did not avail themselves of this opportunity, they were free to make any submissions in the pages allotted for Closing Briefs or time allotted for Closing Statements. |176| Subsequently, the Chamber twice extended the deadline for Closing Briefs, resulting in a 26 September 2013 deadline. The Chamber also extended each party's page limit by 25 pages, clarifying that end notes did not count towards the page limit. |177|

71. On 17 June 2013, the Chamber notified the parties of the schedule for Closing Statements, allotting three days to the Co-Prosecutors, one day to the Civil Party Lead Co-Lawyers and two days to each of the Accused. |178| The Civil Party Lead Co-Lawyers and the Co-Prosecutors were together provided a day for rebuttal and the Accused two hours each for rejoinder and final statements. |179| Closing statements were initially scheduled for 30 days after the filing of Closing Briefs in one official language of the ECCC and later adjusted to 16-31 October 2013. |180| In order to assist the parties in preparing for Closing Statements, the Chamber and the Defence Support Section provided the Accused access to interpreters. |181|

72. Between the first day of Opening Statements on 21 November 2011 and the first day of Closing Statements on 16 October 2013, there were 480 days on which the Chamber did not sit (including weekends, national holidays, recesses and various adjournments, for example those resulting from the health of the Accused). The Accused were on notice from 3 August 2012 that they were expected to allocate facilities and resources, including non-sitting days, during the trial in preparing Closing Briefs. Finally, the Chamber extended deadlines and adapted page limits and other facilities as circumstances required and in the interests of justice. Thus the Chamber does not consider that the Accused's rights to adversarial debate or to present a defence were violated by the procedures set for closing submissions. |182|

2.4.9.5. Conclusion

73. The Accused fail to demonstrate how the various procedural rulings, alone or taken together, precluded a real opportunity for adversarial debate. The Chamber cannot be held accountable for the failure of the Accused or his counsel to use the various opportunities provided, in particular when the Chamber repeatedly attempted to accommodate their concerns by providing further time or opportunities to comply. Accordingly, the Chamber considers that the right of the Accused to adversarial debate was not infringed.

2.4.10. Right of the Accused to Make Statements and Respond to Questioning

74. KHIEU Samphan submits that the Chamber impeded his right to present a defence and comment on the evidence against him when it denied his requests to: receive lists of questions and documents to be used in his questioning; limit questioning to half-day sessions; and be provided three weeks to consult with his counsel prior to questioning. He also alleges prejudice arising from the failure of the Chamber to ensure his counsel had access to the detention facilities on weekends. |183| Thus, considering that the Chamber refused to give the Accused a "worthy, fair and composed question time", the Accused "exercised the only right he ha[d] left, to remain silent until the closure of the 'proceedings' and to make a final statement after closing arguments". |184| Further, both KHIEU Samphan and NUON Chea indicated that they refused to submit to questioning at the conclusion of the hearing of evidence on the basis that their fair trial rights were violated throughout the proceedings. |185|

75. Pursuant to Internal Rules 85 and 90, the President, in consultation with the judges of the Trial Chamber, may decide on reasonable procedures for the statements or questioning of an accused so long as the rights of the accused are respected. |186|

76. The Chamber granted KHIEU Samphan's request for prior notification of the documents the parties intended to use in questioning and to testify in half-day sessions. The Chamber, however, specifically indicated that it was unable to calculate how long the Accused would be able or willing to answer questions and therefore declined to place any further time limitations on questioning. Considering the length of the investigation and trial and the fact that the Accused was on notice of the charges against him throughout, the Chamber also denied KHIEU Samphan's requests for a three week adjournment to prepare for questioning and notification of the topics and questions the other parties planned to canvas. |187|

77. In relation to the request for a list of topics or questions to be covered in questioning, the Chamber affirms its previous finding that the Accused was expected to know the case against him and the context of questioning, particularly by the conclusion of the hearing. |188| In any event, the Co-Prosecutors and Civil Party Lead Co-Lawyers were willing to provide KHIEU Samphan with lists of questions. |189| Further, the Chamber's refusal to place time limits on the questioning of the Accused was reasonable and intended to accommodate the willingness and ability of KHIEU Samphan to continue at any given point. Finally, the Chamber notes that the Accused and his counsel both indicated that, even if all Defence requests concerning the manner and procedure for the Accused's questioning were granted, KHIEU Samphan still would not have responded to questioning on the basis that his rights were violated throughout the proceedings. |190| In this regard, the Chamber affirms its findings above, and throughout the proceedings, that both Accused's fair trial rights were respected over the course of the trial.

78. NUON Chea and KHIEU Samphan exercised their right not to give evidence when the opportunity was provided. |191| The Accused had various opportunities throughout the hearing to make statements and respond to questions. On various occasions they availed themselves of these opportunities. |192| Pursuant to Internal Rule 94(3), the Accused also had a final opportunity to make statements on 31 October 2013. They took advantage of this opportunity. |193| The Chamber therefore finds that there was no infringement of the Accused's right to make statements or respond to questions as provided in Internal Rules 81(6), 89bis, 90, 91bis and 94. |194|

3. HISTORICAL BACKGROUND |195|

79. The events during the Democratic Kampuchea era must be understood within the context of events that preceded it and in particular the development of the Communist Party of Kampuchea ("CPK"). As the CPK grew, it developed and put into practice a number of policies in order to achieve its goals. The existence of each of these policies is examined in this section in order to provide a full picture of the situation prior to 17 April 1975. This section considers the historical development of CPK policies while their overall implementation will be the subject of subsequent chapters which comprise a general overview of events during the temporal scope of the charges or the specific crimes charged in this case. |196| Two of these policies, the forced movement of the population and the targeting of Khmer Republic soldiers and civilian officials, are the subject of charges within Case 002/01 and are consequently examined in greater detail. Further to the existence and, where relevant, the implementation of the CPK policies, the Chamber examines below the general conditions in Phnom Penh leading up to the final assault of the city which began in January 1975 and culminated in the takeover and evacuation of Phnom Penh on 17 April 1975.

3.1. General Overview and Establishment of the CPK

80. In establishing the history of the CPK set out below, the Chamber has relied upon the testimony of NUON Chea and on a number of key documents, including Revolutionary Flag magazines and the transcript of a 1998 interview |197| given by NUON Chea to KHEM Ngun, a former assistant to Ta Mok. |198| When questioned about this interview, NUON Chea attempted to discredit KHEM by stating before the Chamber that the latter was a spy for HUN Sen, a Co-Prime Minister of the Cambodian government at the time the interview was recorded. At the beginning of the interview, NUON Chea emphasised that his recollections were incomplete and that it was difficult to recall particular events going back over many years. The Chamber finds his answers in the interview consistent with other statements he made, including in court. There was no suggestion that he was being untruthful in the interview or that the transcript was inaccurate. In court, NUON Chea acknowledged that he had "mostly" told the truth to KHEM Ngun in this interview, noting only that he had possibly withheld certain information from him. |199| As it is the truth of the contents of the interview, not the reliability of KHEM Ngun's record of the interview which is at issue, the Chamber is satisfied that the transcript of the interview constitutes a reliable basis for factual findings.

81. The first developments of the history of communism in Cambodia are closely linked with the fight against French colonial authorities and especially the armed struggle after World War II, carried out by Khmer Issaraks and the Indochina Communist Party. |200| In 1951, the Indochina Communist Party, led by HO Chi Minh and with branches in Vietnam, Laos and Cambodia, |201| held a Congress attended by NUON Chea. During the Congress, the Vietnamese-led Party renamed its branches, with the branch in Cambodia becoming the Khmer People's Revolutionary Party (KPRP). |202|

82. In late 1953, after NORDOM Sihanouk had successfully launched his "Royal Crusade for Independence," Cambodia again became autonomous. Following the signing of the Geneva Accords in 1954 which nominally ended the first Indochina war |203|, Cambodia, Laos and Vietnam obtained their full independence and foreign troops in Indochina, including Viet Minh soldiers stationed in Cambodia, were obliged to withdraw from their positions. |204| Cambodian communist representatives, however, were not permitted to participate in the negotiations, nor did they obtain any concessions arising from their support of Viet Minh forces during the common fight against the French army. |205| After the withdrawal of Viet Minh forces from Cambodia, all Cambodian communist organisations were dissolved |206| leaving former members of the KPRP vulnerable to repression by NORODOM Sihanouk's State authorities. |207| This situation was later described by SALOTH Sar alias POL Pot, NUON Chea and KHIEU Samphan as the first sign that Viet Minh leaders could not be trusted to safeguard Cambodian interests and that their sole purpose was to establish and control an Indochinese Federation. |208|

83. In 1955, NORODOM Sihanouk renounced the throne in order to become the Chief of the Cambodian state. He won an election and launched the Sangkum party which established a neutral foreign policy that included as a policy a refusal to join the Southeast Asia Treaty Organization. |209| At that time, SON Ngoc Minh went to Hanoi and SIEU Heng controlled the Khmer communist movement particularly in the countryside, while TOU Samuth was Deputy Party Secretary responsible for Phnom Penh. Later, when SIEU Heng's defection to NORODOM Sihanouk and LON Nol was revealed, TOU Samuth replaced SIEU Heng as the head of the party. |210| NUON Chea worked in secret on behalf of the KPRP and, in late 1955, was appointed party secretary for Phnom Penh, |211| where he and POL Pot acted as TOU Samuth's assistants. |212| Between 1955 and 1960, however, the party remained disorganised and nearly dissolved. |213|

84. In 1959, TOU Samuth, POL Pot and NUON Chea began the process of creating a new Cambodian party free of the Vietnamese influence characterised by the Indochina Communist Party. |214| According to KHIEU Samphan, the three men formed the Phnom Penh City Committee pending the election of new leadership. |215| Expert Philip SHORT notes that KHIEU Samphan was assigned the task of rallying intellectual support and reaching out to potential communist sympathisers in mainstream political life. |216| IENG Sary was also a member of the Phnom Penh City Committee. |217|

85. Around the same time, NORODOM Sihanouk coined the term "Khmer Rouge" to refer to the Pracheachon, a semi-legal arm of the communist party in Cambodia. |218| The term "Khmer Rouge" however was never used by members of the Communist movement to describe themselves. |219|

86. POL Pot and NUON Chea drafted the Party Statute and the Party's strategic and tactical lines either on orders from TOU Samuth or of their own initiative. |220| According to NUON Chea, the strategic line was based on a social analysis of Cambodian society which was divided into classes: half-colonialist and half-feudalist. The first task was to conduct a national revolution based on the worker-peasant alliance assembling the forces of the people, including capitalists (whose spirit of patriotism encompassed attacking America), imperialists and feudalists, in order to liberate the nation. The Party Statute also adopted Marxism-Leninism and "democratic centralism" as founding principles of the Party. According to NUON Chea, "the Party had to be built from the countryside [and] the city, using the countryside as a support base, [and] the city as the fuse." |221|

87. From 28 to 30 September 1960 |222|, the First Party Congress was secretly convened in a disused building where UK Sokun resided at the railway station in Phnom Penh to adopt the statute and to appoint the leadership committee. |223| This new party was initially called the Workers' Party of Kampuchea and later renamed the Communist Party of Kampuchea. |224| According to KHIEU Samphan, the members of the Phnom Penh City Committee later formed the membership of the Central Committee of the CPK. |225| TOU Samuth was appointed Secretary and NUON Chea was appointed Deputy Secretary of the Party, with POL Pot, SAO Phim and MA Mang as the other members of the Standing Committee. |226| In addition, Central Committee members were recruited, including TOU Samuth, NUON Chea, POL Pot, MA Mang, IENG Sary, KEO Meas, Chong and VORN Vet. |227| According to NUON Chea, SON Sen was also appointed a candidate or alternate member of the Standing Committee at that time and Chong was not. |228| In addition to representatives of urban areas, the Party invited ten to fifteen representatives from rural areas to study the Party lines and the Party Statute. |229| There is no surviving documentation from the meeting, possibly because nothing was prepared other than the Party Statute itself. |230|

88. According to NUON Chea, the First Congress decided to use arms only if necessary to protect their forces. |231| Throughout the period of Democratic Kampuchea ("DK era"), |232| however, the CPK leaders, including NUON Chea, IENG Sary and POL Pot stated on many occasions that the First Congress in 1960 adopted "revolutionary violence" and decided to use "armed struggle" to achieve its goals. |233| The use of "revolutionary violence" had been the subject of disagreement between Khmer Rouge leaders and Vietnamese communists from the signing of the Geneva Agreement throughout the 1960s. In January and May 1959 for example, the Vietnamese Workers' Party agreed to change from political to armed struggle against the Republic of South Vietnam, but they opposed the Cambodian communists adopting the same strategy. |234|

89. Around February 1962, Party Secretary TOU Samuth was probably arrested and then disappeared, necessitating the appointment of a new Party Secretary during the Second Party Congress held in February 1963 on Charles de Gaulle Street in Phnom Penh. |235| Members of the Standing Committee at the time were POL Pot, SAO Phim, IENG Sary and NUON Chea. |236| Other members present included Keu (alias Sophal), Chong, VORN Vet, MUOL Sambath alias ROS Nhim, Ta Mok, and MA Mang. |237| It is possible that SON Sen was present, although NUON Chea's statements in this regard are not entirely clear. |238| The Second Party Congress appointed POL Pot as the Party Secretary and NUON Chea as Deputy Party Secretary. It reaffirmed the use of political and armed revolutionary violence. |239| In 1963, together with other individuals, IENG Sary and POL Pot, both listed as "progressive", were summoned by NORODOM Sihanouk under the pretext of forming a new government. Fearing arrest they joined the underground near the Vietnamese border. |240|

90. In 1965, POL Pot travelled to Vietnam and China to unveil the recently-formulated strategic lines of the CPK. |241| Although the Vietnamese were unhappy that the CPK failed to consult them in establishing the CPK Statute, the Communist Party of China considered that the CPK party lines were in accordance with doctrine and this enabled the CPK to liaise with other communist parties at the time. |242| Around this time, the CPK headquarters of Office 100 moved to Ratanakiri. |243|

91. In 1967, there was a spontaneous uprising in Samlaut village in Battambang that was the result of land disputes caused by members of the army and civil servants taking land from Samlaut villagers. |244| The party leadership considered it was premature to initiate an armed revolution at the time. |245| Nonetheless, the 1967 Samlaut rebellion in Battambang marked the beginning of armed struggle and civil war in Cambodia. |246|

92. Because he never thought the peasants would rebel against him, NORODOM Sihanouk was very upset by the Samlaut rebellion and moved to quash it with great force. |247| He blamed the influence of the Chinese Cultural Revolution and ordered the Cambodian-Chinese Friendship Association, of which HU Nim was the President, dissolved. |248| KHIEU Samphan, who had joined the CPK with HU Nim, was threatened with arrest and to be brought to the military court under the pretext that he was a ringleader of the rebellion. |249| NUON Chea then took KHIEU Samphan, HU Nim and the other intellectuals, including HOU Youn, to the forest because they were now in danger in Phnom Penh. |250|

93. The events at Samlaut triggered further revolt and, on 17 January 1968, there was an armed attack at Bay Damram, Battambang, by which CPK forces were able to confiscate some weapons from police posts. |251| The Party subsequently adopted this event as the birth of the Revolutionary Army of Kampuchea ("RAK"). |252|

94. The North Vietnamese needed the Sihanouk government's support, or at least its continuing neutrality, to supply the war against the Americans in Vietnam. |253| They therefore continued to oppose armed struggle in Cambodia and requested that the CPK cease making armed attack or at least to leave bridges intact to permit the transport of weapons and rice from Kampong Thom to the Cambodia-Vietnam border. |254| Because of this opposition, the Communist Vietnamese did not provide arms or any form of support to the Khmer Rouge forces. |255|

95. The Third Party Congress was held in 1971 in the Party office near Trapeang Prei village in the jungle. |256| It was presided over by POL Pot and NUON Chea. It was attended by all members of the CPK leadership and representatives from each zone, many of whom appeared in photographs taken at the Congress. |257| Although ROCHOEM Ton alias PHY Phuon did not recall KHIEU Samphan being present, KHIEU Samphan himself stated that he had attended the 1971 Party Congress and that he became a candidate member of the Central Committee in 1971. |258| The Congress ratified the change in party name from Worker's Party of Cambodia to the CPK, and created the Special Zone encompassing Phnom Penh and controlled by VORN Vet. |259| It reiterated the Party's strategic lines adopted at the 1st and 2nd Congresses. |260|

3.2. Sihanouk's Overthrow and the Creation of FUNK and GRUNK

96. By 1969 the economy in Cambodia was flagging and there was uncertainty as to whether it would be dragged into the war in Vietnam despite Sihanouk's official policy of neutrality. |261| From 1969, American bombings in Cambodia served to push North-Vietnamese troops further into Cambodia which heightened the crisis. |262| On 12 March 1970, while NORODOM Sihanouk was in Paris, the Vice-President of South Vietnam, NGUYEN Cao Ky, secretly visited Phnom Penh and formed an alliance with Prime Minister LON Nol. |263|

97. Encouraged by his Deputy SIRIK Matak, on 18 March 1970, LON Nol signed a decree approving the overthrow of NORODOM Sihanouk who was in Moscow and on his way to Beijing at the time. |264| The same day, the Cambodian National Assembly approved a vote of no confidence in NORODOM Sihanouk and required that he relinquish his office as Chief of State. |265| Confronted with these events, NORODOM Sihanouk on 23 March 1970 announced in a radio broadcast from Beijing the creation of a political movement, the National United Front of Kampuchea ("FUNK"), called upon his compatriots to join the resistance and to fight against those who instigated the coup, and promised to provide them with military training and weapons. |266| According to POL Pot, NORODOM Sihanouk first presented a draft of this message to the Chinese Prime Minister ZHOU Enlai who then obtained comments from POL Pot, who was in Beijing and removed any reference in the statement to socialism. |267| POL Pot then drafted a message of support to NORODOM Sihanouk in the name of KHIEU Samphan, HOU Youn and HU Nim and had it delivered to NORODOM Sihanouk on 26 March 1970 without meeting him or disclosing his presence in Beijing. |268| This account is corroborated by KHIEU Samphan. |269|

98. In May 1970, NORODOM Sihanouk formed a new government in exile, the Royal Government of National Union of Kampuchea ("GRUNK"). NORODOM Sihanouk served as the head of state of GRUNK as well as chairman of FUNK. |270| Officially, KHIEU Samphan was the Deputy Prime Minister and the Minister of National Defence of GRUNK. |271| KHIEU Samphan testified that POL Pot appointed him to these positions without his knowledge and that the titles were meaningless. |272| He admitted however that he served as the link between NORODOM Sihanouk and POL Pot, stating that, "I had to agree to assume the role as an important leader of the country's internal resistance. Frankly, this greatly embarrassed me a lot. But it was a 'sacrifice' I could not refuse if I wanted to contribute, in accordance with my possibilities at the time, to the battle for the salvation of our country." |273| KHIEU Samphan confirmed that since NORODOM Sihanouk did not know POL Pot, it was incumbent upon him to establish relations between the CPK and GRUNK. |274|

99. The FUNK's official policy was to unite and mobilise the social classes and to "overthrow the fascist and racist dictatorship of the American imperialists' flunkeys headed by Lon Nol-Sirik Matak." |275| The FUNK also guaranteed to all Cambodians basic freedoms including the freedom of religions and beliefs. |276| The GRUNK, and KHIEU Samphan in particular, officially supported this vision. |277|

100. In reality, the GRUNK administration in Cambodia was a facade, although GRUNK/FUNK had certain propaganda functions outside of Cambodia. |278| SUONG Sikoeun testified that NORODOM Sihanouk retained influence overseas and in diplomatic relations while the CPK was responsible for the armed struggle in Cambodia. |279| In 1973, for instance, NORODOM Sihanouk visited the Khmer Rouge liberated territories in Cambodia, providing support to the CPK in their fight against the LON Nol regime. |280| According to NORODOM Sihanouk, however, he had relinquished any power he had to the Khmer Rouge, remaining only a symbol of national unity. |281| He stated, "I am giving everything up to the Khmer Rouge [...] Mr Khieu Samphan, the vice-Prime Minister and Minister of Defence is the leader of the resistance within Cambodia, in coordination with the North-Vietnamese and the Vietcong." |282| For its part, the FUNK established a radio station, directed by IENG Thirith, that was used to recruit cadres for the Party and to disseminate propaganda both inside and outside Cambodia. |283| Although commentary on FUNK radio was often unattributed, KHIEU Samphan issued statements on FUNK radio on at least several occasions. |284| The establishment of the FUNK was therefore intended to unite the communists and NORODOM Sihanouk, but was also used to attract a large number of peasants to join the CPK and their cause. |285|

101. Having surveyed the early history of the CPK and the events leading to the 1970-1975 civil war, the Chamber now examines the CPK policies that were being developed within the areas 'liberated' by the CPK prior to 1975.

3.3. Development of CPK Policies

102. According to the Closing Order, starting prior to 17 April 1975, CPK leaders designed and implemented a series of reforms, including the formulation of five policies that are the subject of Case 002:

    1. The repeated movement of the population from towns and cities to rural areas, as well as from one rural area to another;

    2. The establishment and operation of cooperatives and worksites;

    3. The re-education of "bad elements" and killing of "enemies", both inside and outside the Party ranks;

    4. The targeting of specific groups, in particular the Cham, Vietnamese, Buddhists and former officials of the Khmer Republic, including both civil servants and former military personnel and their families; and

    5. The regulation of marriage. |286|

103. Of these, the two policies concerning forced movement and the targeting of former officials of the Khmer Republic are the subject of the charges at issue in Case 002/01, though the existence of the other policies is also relevant. |287|

3.3.1. Pre-1975 Movements of the Population

104. Prior to 1975, the CPK carried out population movements in areas within their control. The policy was explained in the July 1973 issue of Revolutionary Flag:

    In the evacuation of people from the areas under the control of the enemy to the liberated zones, we took strong and optimistic views of mass population to successfully send them away to the countryside with no worry that people could be fraught with difficulty due to the [lack] of everything. In addition, we were not afraid that people in the liberated areas could not help the evacuated people. With strong popular views, we believe that our people could do everything. Although we were in the situation that we were lack of rice as we are now, we dared to evacuate many more people. Based on our past experiences, we see that people could resolve the problems. |288|

105. Therefore, Khmer Rouge forces removed people from enemy-controlled areas to the countryside despite the lack of rice there. Expert Philip SHORT explained that from 1970, villagers within Khmer Rouge controlled territory were transferred and sent to remote mountain and jungle areas. "Their original homes, if not already destroyed, were burned down to stop them returning [...] [T]hey were dragooned into cooperatives of thirty or forty families who farmed the land in common." |289|

106. For example, about two months after NORODOM Sihanouk was deposed, the town of Kratie was taken by the Khmer Rouge and evacuated later in 1973. |290| Witness YUN Kim recalls that the town's markets were initially unaffected and commercial trade continued. |291| However, it was explained in the Revolutionary Flag of August 1975 that the Kratie Market could not be permitted to continue as "commerce could not serve the lives of the people and could not serve the war of national liberation. It was clearly seen by mid-73 that there was no way out for us. We could not gather up the people. The businessmen were the masters." |292| Therefore the solution was to impose collectivisation. After the people were collectivised and communal eating began, money stopped being circulated, the markets were closed in Kratie, and the town was evacuated. |293|

107. In another example, Witness Francois PONCHAUD testified as to the transfer of the population of Kampong Cham in 1973, where he had lived prior to 1970. |294| Based on accounts of villagers who were expelled from their homes, the Witness testified that when Khmer Rouge soldiers captured a village, the houses in the village would be set on fire, the commune chiefs would be executed and people would be moved to the forest. |295| While Witness PHY Phuon claimed that the Khmer Rouge did not control Kampong Cham long enough to evacuate the population and the people quickly returned after the Khmer Rouge withdrew, the Chamber does not find this evidence reliable concerning this specific issue. |296| His opinion was speculative and differs markedly from other, more detailed, accounts describing the transfer of the city's population. |297|

108. The strategy of evacuation of liberated territories was further explained in the Revolutionary Flag of December 1976 and January 1977:

    Throughout the world, they never capture [or seize] the people. Our line was to capture the people: one, we took him; two, we took them; 100, we took them; 1,000, we took them, and so on until we captured the people from Phnom Penh too. The line of taking away [or drying up] the people from the enemy was very correct. This never happened in the world. When the enemy has the people, the enemy has an army and an economy. When the enemy has no people, the enemy has no military and no economic strength. Our reasoning is correct. Thus, our line is very correct. We fight to capture the people at every location. |298| (emphasis added).

109. The same issue of the Revolutionary Flag cited the town of Banam as an example of the application of this strategy: "The fighting [...] in Banam Town, expelling the ethnic Vietnamese, the ethnic Chinese, the military, the police; we took everyone, taking away the people from the enemy." |299|

110. There were varying interpretations of what it meant to "seize" or "capture" the people. In Philip SHORT's view "seizing the people" meant to exercise control over the population rather than over territory, and recalled the same tactic had previously been used by the communists in China. |300| Witness Stephen HEDER noted that "seize the people" could mean literally physically grasping a group of people but that it could also mean the change in administrative control or management of a contested area. |301| NUON Chea agreed with this latter interpretation stating that the CPK needed to bring the population within its newly-established economic order. |302| Consonant with NUON Chea's interpretation, POL Pot explained to KHIEU Samphan that the emptying of the cities was part of a collectivisation policy pre-dating the war that enabled the CPK to maintain control over the rice supply. |303| According to POL Pot, the CPK's ability to control the supply of rice forced Vietnam to respect Cambodia's sovereignty while Vietnamese troops operated in Cambodia. |304| The Chamber is satisfied that there was an economic rationale underlying the evacuation of cities in order to establish CPK control over the food supply and to provide workers for the fields. |305|

111. Nonetheless, the evacuations also constituted an attack on the enemy. On this point the Chamber finds Expert David CHANDLER's assessment to be convincing. He noted that there was a repetitive pattern in Khmer Rouge policy that reached its climax in the evacuation of Phnom Penh and other cities following the 17 April 1975 victory. The people in the cities were considered intrinsically disloyal and had to be removed. |306| As confirmed by several sources of evidence, the CPK leaders had concluded that city-dwellers would remain politically and ideologically corrupt if they were allowed to stay in the cities and would be difficult to control. |307| This was a long-held belief of NUON Chea who explained that urban people from an earlier time were "the corrupt society, the womanizing society, the society with alcohol" and contrasted them with the rural people living in the forests who were "clean". |308| As mentioned in various statements and testimonies, the people were "captured" and "taken away" from the enemy by moving the population out of urban areas such as Oudong, Kratie, Banam and Kampong Cham into the countryside. |309|

112. Prior to the DK period, the Khmer Rouge built up a huge reservoir of hatred of city people among their followers. |310| The evacuation of cities therefore served a dual purpose, namely to prevent enemies from destabilising CPK forces, and also to prevent cadres from being corrupted by the urban population. |311| Based on the above, the Chamber is satisfied that a policy of repeated movements from towns and cities to rural areas existed before the DK period. There was an economic as well as a political rationale behind these movements.

3.3.2. Establishment of Cooperatives and Worksites pre-April 1975

113. In a process initiated in May 1972 and officially confirmed one year later, the Central Committee decided to close markets in the liberated zones and to establish cooperatives in order to "[attack] the power of the classes of feudalists, land owners, and capitalists and to cut off private trading." |312| The process of gradually establishing cooperatives varied depending on the zones and on the level of the cooperatives, but the central objective was to eliminate private ownership of land and the means of production and to replace it with a system of cooperative ownership with the State in complete control of commerce and executing an "absolute democratic revolution." |313| The CPK distributed circulars prohibiting people from selling food and supplies to the enemy and assigning them to produce crops collectively. |314| In 1972-1973, cooperatives were established in a number of regions within the control of the CPK, in some cases based on orders coming from the sector. |315| This process was further developed and, for example, as discussed more fully below, in March 1974, the town of Oudong was captured by the Khmer Rouge and an estimated 15,000 to 20,000 people were forcibly moved to rural areas and resettled in cooperatives. |316|

114. In parallel with the control of the economy a widespread system of bartering began, and the use of LON Nol regime currency was either partly restricted or prohibited altogether. |317| The CPK imposed increasingly difficult working conditions on members of cooperatives. |318| According to KAING Guek Eav alias Duch, who had created a cooperative at M-13B for suspects and those who had committed minor offences, |319| the CPK required those in cooperatives to work ten hours a day, seven days a week. |320|

115. The Chamber heard contrasting evidence regarding the purpose behind the creation of cooperatives. NUON Chea acknowledged that around 1972, the Standing Committee decided to pool labour resources for rice-production. |321| He admitted that the population of Oudong had been evacuated in order to establish cooperatives with the purpose of cultivating food to counter food shortages. |322| Expert Philip SHORT also considered that the practical reason for collectivisation was to organise the production of rice and to prevent the Vietnamese from disturbing its supply. |323| More important, in his view, was the ideological rationale for collectivisation: it was a choice of communism over capitalism and an attempt to enforce equality for all citizens in levels of wealth. |324|

116. The Chamber is satisfied that prior to 1975 there existed a CPK policy to create cooperatives, which imposed difficult working conditions on cooperative members including those who had been forcibly moved there. As noted above, there was an economic as well as an ideological reason for the collectivisation policy. |325|

3.3.3. Re-education of bad elements and killing of enemies

117. There is evidence to suggest that the CPK established a further policy of reeducation of "bad elements" and "smashing" those who had been found to be enemies. |326| From 1971 until June 1975, KAING Guek Eav was the head of M-13 which was tasked with receiving people who had been arrested from the battlefields. |327| Other security offices were established in this time period as well, such as the security office at Krang Ta Chan created in 1972. |328| In security centres, those who had been accused of being spies, or who were perceived as enemies, were interrogated and smashed. |329| To "smash" meant more than just to kill; it meant to arrest secretly, to interrogate and execute a person without the knowledge of family members. |330| Those who had been accused of being spies were enemies and were to be interrogated in security centres and smashed. |331| The way in which "enemy" was defined was tactical, remaining vague enough to allow various interpretations and to create an uncertain atmosphere. |332| However, the term was interpreted liberally and even Khmer Rouge cadre considered that innocents were falsely identified as enemies. |333|

118. The policy to smash enemies continued throughout the DK era though the policy evolved. |334| From 1970, spies, including CIA, KGB and Vietnamese ("Yuon"), were regarded as the key enemies. |335| Starting before 1975, former soldiers and officers of the LON Nol regime were also identified as the key enemies. |336| The Party also looked inward to find its enemies identifying those within the party who stood in the way of the "great leap forward", including soldiers, people in the North and Northwest Zones, and even members of the leadership. |337| For example, in 1974, Prasith, a member of the Central Committee from the Southwest and an ethnic Thai, was accused by Mok of working for the Bangkok government and the CIA. |338| He was taken to the forest and killed. The policy of re-education and killing of enemies was also linked to the policy of collectivisation, as the process of moving people to rural areas and the reorganisation of people's modes of life and production through the establishment of cooperatives helped Khmer Rouge cadres to ferret out and eliminate all those who were perceived to oppose the revolution, including government agents, spies and pacifist agents. |339| For example, Khmer who had previously studied in Vietnam and had returned to Cambodia to assist in the revolution were later suspected of being enemies, brought together and smashed. |340| Evidence concerning the nature and implementation of the policy of re-education of bad elements and killing of enemies, and its extent, will be the subject of Case 002/02.

3.3.4. Targeting of Specific Groups -- Cham, Vietnamese, Buddhists, and former officials of the Khmer Republic

119. The Chamber notes that while a policy of targeting Cham, Buddhist and Vietnamese is alleged in the Closing Order |341|, limited evidence has been heard to date on this policy. It will therefore be examined in detail in Case 002/02 and any subsequent trial. |342|

3.3.4.1. Targeting of Khmer Republic Soldiers and Officials

120. In the months leading to the final assault on Phnom Penh, the FUNK struck a conciliatory tone in radio broadcasts directed at Khmer Republic officials and soldiers, informing them that they could join the Khmer Rouge should they defect. |343|

These messages were a calculated attempt to reduce opposition to the Khmer Rouge advance and lull the Khmer Republic officials into a false sense of security. |344| As he was perceived to be a moderate capable of unifying Khmer people from various sides, Khmer Rouge leaders called upon KHIEU Samphan to give deceptive assurances that once the CPK forces took control of the country, only the "seven supertraitors", including LON Nol and his inner leadership, would be executed. |345| The messages invited the Khmer Republic soldiers and civil servants to join the revolution, but warned implicitly that if they delayed in doing so, they would be in the same category as the supertraitors. |346| At the same time, cadre were taught at study sessions prior to the attack on Phnom Penh that the enemies of the Khmer Rouge were those who worked under the LON Nol regime and LON Nol soldiers. |347|

121. There is consistent evidence of a radicalisation of the policy regarding captured Khmer Republic soldiers and officials from 1970 until 1975. Initially, there was a distinction made between LON Nol soldiers and "agents." Soldiers were often reeducated and forgiven |348| whereas agents were usually executed. |349| This distinction may have been difficult to put into effect as one refugee, likely a former party member, noted, "We did not know who was a Lon Nol officer or who was a CIA agent. So we were afraid that our enemy might rise up again." |350| But around 1972 or 1973, Khmer Republic soldiers were less likely to be forgiven and more likely to be executed if captured by CPK forces. |351| American bombings, which lasted until mid-1973, had made people very angry and suspicious of outsiders, some of whom were accused of being agents from LON Nol camps and executed. |352| For example, a former LON Nol soldier stated, "In 1972 there were lots of Lon Nol soldiers captured, about 500 of them. All were executed, none were forgiven." |353|

122. There was some evidence of the uneven application of this policy. This can be attributed to two factors. First, there was no initial written directive on the targeting of Khmer Republic soldiers and officials. |354| Despite the lack of a written policy, it was Philip SHORT's view that that the uniformity of the treatment of Khmer Republic soldiers indicates that such a policy must have existed. |355| Second, the evidence concerning the CPK treatment of former soldiers or officials of the Khmer Republic prior to 1975 within the liberated zone arises mainly from post-1979 interviews of refugees outside of Cambodia, many of whom were former Khmer Rouge cadre who would have an incentive to minimise evidence of mistreatment. Nonetheless, even these accounts support the conclusion that there was an increasing use of revolutionary violence. |356|

123. The radicalisation of CPK policy targeting groups of individuals considered to be enemies such as former Khmer Republic soldiers or officials is also consistent with the Party's increasing use of revolutionary violence against enemies both internal and external, including, as noted above, former Central Committee member Prasith and so-called Hanoi Khmer who had studied in Vietnam. |357| If violence was now appropriate for internal enemies, it would also be required against external enemies.

3.3.4.2. The "Experience" of Oudong

124. The CPK's merciless policy is cogently illustrated by the execution of Khmer Republic soldiers following the evacuation of the town of Oudong. On 18 March 1974, CPK forces under the overall charge of Ta Mok and ultimately the head of the Special Zone, SON Sen, |358| captured the town of Oudong. |359| Based on interviews with several villagers and other sources, Expert Philip SHORT reported that several thousand, "[o]fficials and uniformed soldiers were separated from the rest, led away and killed." |360| Two witnesses also confirmed that after the fall of Oudong many people, including children were first sent to M-13, where some were interrogated, and later to Battambang Province. |361| Witness Stephen HEDER visited Oudong around 19 March 1974 and interviewed some of the few remaining inhabitants who told him about mass executions of some categories of people including Buddhist nuns by Khmer Rouge troops entering Oudong. |362| Although he did not recall seeing the bodies of Khmer Republic military personnel or hearing specific reports of such executions, he personally saw half a dozen bodies of Buddhist nuns on a hillside near a Pagoda. |363|

125. Witness NOU Mao testified that he attended a commune committee meeting after the evacuation and was told that Khmer Republic soldiers had been defeated at Oudong and the population 'evacuated' to the Trapeang Treunh village. |364| He was told that evacuees died due to starvation and disease, but there was no acknowledgement that soldiers were executed. |365| One month later however in a speech given in North Korea, KHIEU Samphan gave a clear indication of what had happened and who had been targeted: "On 18 March, our People's National Liberation Armed Forces liberated another city, Oudong, by annihilating all the puppet soldiers there along with their reinforcements; in other words over 5,000 enemies were eliminated, 1,500 of whom were captured." |366| He did not specify whether the enemies who were annihilated had been killed during the fighting or instead after they had been captured and disarmed.

126. In "Nouvelles du Cambodge" the official publication of the FUNK, dated April 1974 the capture of Oudong was described somewhat differently: "On 18 March 1974 Oudong was totally liberated. An enemy division was totally wiped out and 30,000 inhabitants of that town and surrounding areas successfully crossed over the liberated zone. It is only after the FAPLNK had totally destroyed the military positions, the administrative power, detention camps, the pacification centres at Oudong that the traitors rushed reinforcement troops. But they too were totally trounced and decimated in great numbers." |367|

127. Based on the foregoing, the Chamber is satisfied that a CPK policy targeting soldiers and officials of the Khmer Republic existed prior to 1975. There were some variations in this policy depending on circumstances and locations. |368| But with the escalation of the war in Cambodia and the power exercised by the CPK on cadres within their control increasing, this policy which was initially relatively lenient, became more radical and in several instances there were mass killings of Khmer Republic soldiers after their capture. The policy as effected was in marked contrast with the official policy disseminated by the FUNK once the country was under CPK control promising the death penalty only for the 'seven super-traitors'. Furthermore the Chamber finds that Khmer Republic soldiers, likely numbering in the thousands, were executed en masse immediately after the seizure of Oudong, the CPK leadership was aware of the event, and, as noted below, discussed it during the Central Committee meeting held in June 1974. |369|

3.3.5. The Regulation of Marriage

128. The Closing Order states that prior to 1975, |370| and thereafter, the CPK arranged marriages and encouraged procreation in order to increase the population of Democratic Kampuchea. |371| The Chamber heard some evidence concerning arranged and involuntary marriages, including that those who did not agree were sometimes beaten, raped or killed. |372| There were also instances where couples wed by Angkar (literally 'organisation') were put under surveillance in order to enforce procreation. |373|

129. According to others, marriages were arranged by Angkar, but not forced. These witnesses asserted that Angkar took the place of the parents and in Cambodian tradition the parents arrange the marriage for children, although a few witnesses had a different understanding. |374| KHIEU Samphan claimed not to know anything about forced marriage and, according to him, no such event took place in Phnom Penh. |375|

130. There is however, some evidence of arranged and involuntary marriages. The Chamber is therefore able to find that regulation of marriage was a CPK policy. Evidence concerning the nature and implementation of the policy of regulation of marriage, and its extent will be the subject of Case 002/02.

131. Having examined the existence of the CPK policies that are relevant to Case 002/01, the Chamber now considers the events immediately preceding the 17 April 1975 evacuation of Phnom Penh.

3.4. Decision to 'Liberate' and Forcibly Evacuate Phnom Penh and Other Urban Centres

132. The Trial Chamber is satisfied that the CPK Central Committee over a series of meetings starting in 1973, decided collectively to forcibly evacuate Phnom Penh's inhabitants. |376|

3.4.1. June 1974

133. In June 1974, the CPK leaders met in Meak village, Prek Kok commune near the bank of the Mekong River for more than a fortnight to discuss plans for the final assault and liberation of Phnom Penh and other urban centres. |377| By his own admission, NUON Chea attended the meeting and participated in the decision to evacuate the cities. |378| Other attendees included POL Pot, SAO Phim, KOY Thuon, Ta Mok, VORN Vet, ROS Nhim, and SON Sen. |379| Those attending the June 1974 meeting endorsed the evacuation of Phnom Penh. |380|

134. Although IENG Sary claimed he did not attend the June 1974 meeting, a claim supported by NUON Chea |381|, he admitted in an interview with Stephen HEDER that he had discussed the evacuation of Phnom Penh with POL Pot upon his return from China. Based on the timing of this discussion, and the testimony of PHY Phuon placing IENG Sary at the June 1974 meeting, the Chamber is satisfied that this conversation occurred around the same time as, if not during, the June 1974 Central Committee Meeting. With the prompting of the Chinese leadership, IENG Sary asked POL Pot what plans were in place following the liberation of Phnom Penh for its three million inhabitants. POL Pot told IENG Sary that "they already had all the experience they needed [...] [I]t was a very easy matter to resolve [...] because we Khmer had clear-cut notions in this regard after having been able to solve the problem in Stung Treng and Kracheh [Kratie] provinces. So the solution to the problem was to evacuate." |382| The events at Oudong were also discussed extensively and, according to Philip SHORT, "it was the success [of] what happened at Oudong, which convinced the leadership that this was the way they should go with Phnom Penh [...]" |383| Despite POL Pot's representation to the international community that the plan to evacuate Phnom Penh was not "pre-established," it is clear that the matter was in fact discussed at Central Committee meetings starting in June 1974 and a plan was put in motion to liberate and then evacuate Phnom Penh. |384|

135. There were conflicting accounts as to whether KHIEU Samphan attended the meeting at which the decision to evacuate Phnom Penh was made. KHIEU Samphan asserts that he did not participate and that he was not in Cambodia at the time of the meeting. |385| NUON Chea supports this rendition of events, stating that KHIEU Samphan was not present at the meeting and therefore he did not know of the decisions taken. |386| According to PHY Phuon, however, KHIEU Samphan was at the June 1974 meeting in Meak and agreed with the plan to evacuate the city. |387|

136. Although KHIEU Samphan, along with IENG Sary, visited multiple countries from March to May 1974 in a tour of Africa, Europe, and Asia in his capacity as FUNK Deputy Prime Minister, |388| he returned to Cambodia in June 1974 when the meeting occurred. |389| Several news articles report on KHIEU Samphan's visits to foreign countries in April and May 1974, including China and Vietnam. Two articles, one quoting KHIEU Samphan's speech, indicate his presence in Laos in June 1974. |390| These reports do not indicate the precise date or the duration of KHIEU Samphan's visit. However, a contemporaneous Australian Embassy Cable indicates that an Australian delegation's visit to Laos was postponed because KHIEU Samphan had spent the week of 2-8 June in Sam Neua, Laos. |391|

137. This is consistent with the detailed testimony and memoire of SUONG Sikoeun. SUONG travelled from Beijing to Hanoi with IENG Sary and KHIEU Samphan on 25 May 1974, SUONG's wife's birthday. |392| After staying one week in Hanoi, |393| they travelled to Laos for two days before KHIEU Samphan and IENG Sary returned to the liberated zone in Cambodia along the HO Chi Minh trail. |394| SUONG stated that the two had to return to Cambodia because the war between FUNK/GRUNK and Marshall LON Nol had intensified and as leaders of the

Resistance Movement, KHIEU Samphan and IENG Sary were obliged to join the Resistance in the country. |395| The Chamber is therefore satisfied that KHIEU Samphan was in Laos in the first week of June 1974 before returning to the liberated zone in Cambodia with IENG Sary.

138. The official visit to China, noted above, was particularly significant. During it, KHIEU Samphan secured for the first time since the January 1973 Paris Peace Agreement between the North Vietnam Republic and the U.S., a publicly-announced agreement whereby China would provide military equipment and supplies to the CPK forces. |396| The visit was also significant for the open support and encouragement offered by the senior leadership in China to the CPK leadership in its battle against the Khmer Republic and its U.S. supporters. |397| KHIEU Samphan and IENG Sary's visits around the same time to the liberated zone in Laos and to Vietnam were equally important given the level of official recognition they received and the issues concerning military and political cooperation discussed with the highest authorities of these countries. |398| Considering its geographic location between China and Cambodia, Vietnam had the ability to facilitate arms transfers from China to the CPK, or in the alternative, to block them. |399| Therefore, the visit to Vietnam was crucial to the fate of the on-going fight in Cambodia. The Chamber considers it very likely that the June 1974 meeting was scheduled to enable KHIEU Samphan and IENG Sary to attend and report to the members of the CPK Central Committee on the highly successful meetings with senior Chinese, Vietnamese and Laotian leaders.

139. SO Socheat, KHIEU Samphan's wife, places KHIEU Samphan's return to Cambodia from abroad either in June or July 1974. But given the contradictions in her testimony, her motivation to assist her husband, the clear testimony of PHY Phuon and the equally clear information provided by SUONG Sikoeun, the Chamber finds that SO Socheat's evidence is unreliable. She first testified that KHIEU Samphan was not with her when she gave birth to her child on 6 June 1974 and that he returned from China only one month later. However, she then stated that KHIEU Samphan was in Cambodia with her in June 1974, asserting that he stayed with her at K-17 and B-20 and went to Meak village only when Phnom Penh was close to being liberated. |400| After the birth of her first child, she said that KHIEU Samphan stayed by her side for about one month to assist her. |401| However she had also mentioned previously that she went to Meak's office in the early days after the birth of this child. |402| She again contradicted herself, saying first that KHIEU Samphan had stayed with her for four or five months, then correcting herself to state it was three months. |403| In addition to these contradictions, and the implausibility of some aspects of her testimony, |404| the Chamber views SO Socheat's testimony in the light of her desire to assist her husband and to absolve him of culpability for the criminal conduct for which he is charged.

140. While SO Socheat's statements concerning the date of KHIEU Samphan's travel to Meak village are contradictory, she has confirmed that KHIEU Samphan did in fact travel there. The Chamber further notes that Meak village was located in Kampong Cham very near to B-20 |405| and travel between these places was feasible. Therefore the Chamber does not find that her testimony raises a reasonable doubt as to KHIEU Samphan's presence in Meak village in June 1974.

141. After the June 1974 meeting, everyone was instructed to disseminate information about the conclusions reached at the meeting in their respective zone of competence. |406| A committee chaired by SON Sen and including KOY Thuon and other zone members was established to manage the evacuationof Phnom Penh. |407| POL Pot and NUON Chea led a delegation to Vietnam to inform the Vietnamese leaders of the CPK plan to 'liberate' Phnom Penh and to request further supplies of weapons. |408|

142. Considering all of the above circumstances, the Chamber is satisfied that both KHIEU Samphan and IENG Sary were present at the June 1974 meeting at which the decision was made to evacuate Phnom Penh. Pursuant to the principle of democratic centralism, both acceded to the decision. |409| KHIEU Samphan could have opposed the evacuation of Phnom Penh, but chose not to. |410|

3.4.2. February 1975

143. There was evidence to suggest that the evacuation of Phnom Penh was again discussed within the CPK in February 1975. Although Expert David CHANDLER recognised that opinions differ about this date, |411| it was his view that the decision to evacuate the cities was made in February 1975, |412| by which time the inhabitants of several smaller towns including Oudong and Kratie had already been forcibly transferred and the policy had been tested. |413| In an interview given at a press conference in Beijing in IENG Sary's presence POL Pot also stated that the decision to evacuate city residents to the countryside was one of the major factors for the success of the revolution and that the decision was made in February 1975. |414| While NUON Chea did not recall any subsequent meeting on the issue of the evacuation of Phnom Penh after the mid-1974 meeting, he confirmed that the decision to evacuate was discussed at more than one meeting. |415|

3.4.3. Early April 1975

144. The Chamber is satisfied that in early April 1975, senior leaders of the CPK gathered at B-5, the command centre for the attack on Phnom Penh located in Tang Poun village, Kampong Tralach district, Kampong Chhnang province to discuss the forcible transfer of the inhabitants of Phnom Penh. |416| Witness PHY Phuon was present in the vicinity of the meeting and provided a relatively detailed account. The Trial Chamber accepts PHY Phuon's evidence in relation to the overall description of this meeting and its participants, who included both NUON Chea and KHIEU Samphan. In important respects, his evidence on this matter was corroborated by the Accused.

145. The Chamber concludes that POL Pot and other leaders, who were at B-5 prior to the evacuation, attended the meeting together with NUON Chea, KHIEU Samphan and other senior leaders. |417| According to NUON Chea, POL Pot stayed at B-5 from early April 1975 in order "to command the [...] liberation of Phnom Penh." |418| KHIEU Samphan admitted that he had relocated to B-5 to "follow the last offensive against the capital more closely", although he denied participating in the work of the headquarters. |419| The Chamber notes that IENG Sary was also aware of the meeting (which he placed in late March or early April 1975) at which the evacuation of Phnom Penh was discussed, although he claimed not to have been present himself. |420|

146. At the meeting, leaders reported on the battlefield situation in their various regions. |421| POL Pot again raised the issue of the evacuation of Phnom Penh. |422| The military commanders noted that it would be difficult for the cadre to control the people if the city was not evacuated. |423| POL Pot discussed the success of experiments with earlier liberation' of towns and cities as did NUON Chea. |424| According to PHY Phuon, both NUON Chea and KHIEU Samphan supported the plan, and all meeting participants applauded, indicating agreement with the proposal to evacuate Phnom Penh in line with the policy to evacuate urban areas as they were liberated from enemy control. |425|

147. The Chamber further notes that both KHIEU Samphan and IENG Sary expressed a comprehensive understanding of the decision-making process that led to the evacuation of Phnom Penh. In a video-taped interview, KHIEU Samphan asserts that had there been a single voice against the evacuations, they could not have taken place. The reason for the evacuations, he states, were to prevent the people from dying of starvation. |426| Further, it was KHIEU Samphan who announced the final assault of Phnom Penh on the Voice of FUNK, although the evacuation of the city was not announced. |427| For his part, IENG Sary discussed the evacuation of Phnom Penh with POL Pot at least in June 1974 and likely in April 1975. Both KHIEU Samphan and IENG Sary therefore had prior knowledge of the details of the evacuation that is consistent with their having taken part in the decision-making process.

3.4.4. Orders passed to lower cadre

148. After the early April 1975 meeting at B-5, meetings were held with the Khmer Rouge forces to give orders to RAK division commanders to evacuate Phnom Penh and other cities. |428| For example, Khmer Rouge cadre SEM Hoeun was told by his commander that the commanders met prior to 17 April 1975 to discuss the evacuation of Phnom Penh and later informed their subordinates. |429| CHHOUK Rin, a former Khmer Rouge commander, reported that a meeting was held in Phnom Sar at the army headquarters in Kampot Province about one month before the fall of Phnom Penh at which Ta Mok discussed the closure of markets, the abolition of currency and evacuation of Kampot Town. |430| Ta Mok also discussed the plans for the evacuation of Kampot which closely resembled the practice that was followed in Phnom Penh and other parts of the country. |431| For this reason, it was CHHOUK Rin's belief that the evacuations were executed based upon an agreement among the leaders. |432|

149. Several witnesses confirmed that instructions from higher levels were relayed downwards through the ranks of the RAK. Witness KHORN Brak stated before the Co-Investigating Judges that there was a meeting three days before the attack on Phnom Penh where troops were told that they had to evacuate the city after it was liberated, and tell LON Nol soldiers to put down their weapons. |433| CHHAOM Se stated that orders to evacuate Phnom Penh were blanket orders carried out in every battlefield as every city had to be emptied of their inhabitants in accordance with a plan established in advance. |434| Two Khmer Rouge soldiers at the time of Phnom Penh's liberation, CHEA Say and SUM Chea, received orders to help evacuate people from the city, but only after Phnom Penh was liberated. |435| Similarly, KUNG Kim only became aware of the plan to evacuate when he entered Phnom Penh with his platoon and noticed people were on the move. His platoon had orders to cut the water supply to force people to leave their houses, or to enter houses if people remained inside, to ensure that people had been evacuated from their area, and to clean the houses or the roads. |436| The uniformity of these orders indicates that there was a coordinated plan at the outset. |437|

150. Other Khmer Rouge cadres and military personnel testified that they had not been told about the evacuation beforehand. MEAS Voeun, a commander of Regiment 16, Division 1, in the Southwest Zone whose division was responsible for attacking Phnom Penh from the southwest, |438| CHUON Thi, who was in the same division, and UNG Ren, an officer in Brigade 14 also attacking from the Southwest, testified that their respective units did not receive orders to evacuate civilians from Phnom Penh. |439| SAUT Toeing, NUON Chea's bodyguard and/or messenger, PEAN Khean, a messenger for the CPK, and SUON Kanil, a morse operator working close to senior cadres of the Central Zone also knew nothing about plans to evacuate Phnom Penh although on 17 April 1975 they saw a lot of people walking out of the city and Khmer Rouge soldiers guarding offices around the city. |440|

151. Although certain cadres were not informed of the decision to empty Phnom Penh of its inhabitants prior to the final assault, the Chamber is satisfied on the basis of evidence concerning the planning of this movement of population and cadres who were informed of the plan in advance, and the consistent manner in which the evacuation was executed throughout the city, that there was in fact a decision to that effect by the senior CPK leaders that was passed down the military hierarchy, albeit imperfectly.

3.4.5. Conclusion

152. Given the evidence above, it is clear that NUON Chea was instrumental in the decision to liberate and transfer the population from Phnom Penh and other urban centres. KHIEU Samphan told the Co-Investigating Judges that he was not involved in the decision to evacuate Phnom Penh learning of the evacuation from soldiers in Oudong only before departing for Phnom Penh. He stated that he discussed the policy of evacuating Phnom Penh, which he considered to be a grave mistake, after the fact with POL Pot. |441| While Philip SHORT considered that KHIEU Samphan was not part of the decision-making apparatus, |442| the Chamber does not find KHIEU Samphan's statements that he was entirely ignorant of the plans to evacuate Phnom Penh to be credible. Given his close relationship with NUON Chea, POL Pot and IENG Sary, and the evidence summarised above, |443| the Chamber is satisfied that NUON Chea, as well as KHIEU Samphan and IENG Sary, participated in the decision to evacuate Phnom Penh and other urban centres.

3.5. Justification for the Transfer of the Population of Phnom Penh - American Bombings

153. The CPK leadership cited the possibility of American bombing attacks on Phnom Penh as a justification for the transfer of the population out of the city. |444|

154. From March 1969, with the apparent acquiescence of NORODOM Sihanouk, |445| the U.S. military secretly bombed locations in the eastern provinces of Cambodia, although there were planes straying across the border from Vietnam even prior to this. |446| They initially targeted the HO Chi Minh Trail, a route from North Vietnam through Cambodia into South Vietnam, by which Vietnamese communists supported the conflict in Vietnam with troops and supplies. |447| After NORODOM Sihanouk was deposed, the United States also sent thousands of ground troops into Cambodia from April to June 1970. |448| In December 1970, in response to domestic opposition to U.S. military intervention in Cambodia, the U.S. Congress appears to have prohibited the use of funds for "United States personnel in Cambodia who furnish military instruction to Cambodian forces or engage in any combat activity." |449| Nonetheless, and as demonstrated below, U.S. military bombings continued until August 1973. |450|

155. On 27 January 1973, the United States signed a ceasefire agreement with Vietnam. |451| The Khmer Rouge, for their part, refused to sign a ceasefire with the LON Nol government and there followed a sharp increase in the U.S. bombing of Khmer Rouge-controlled locations throughout Cambodia. |452| In total, the U.S. dropped several hundred thousand tonnes of bombs in Cambodia. |453| Although many of the bombs fell in areas that were not heavily populated, it is estimated that tens of thousands of people were killed. |454| François PONCHAUD, who was in Phnom Penh at the time, testified that people were terrified and traumatised by the carpet bombing. |455| The primary effect was probably to drive people from rural areas to take refuge in Phnom Penh, contributing to a massive increase in the city's population. |456| The bombing also had an effect on the Khmer Rouge forces and delayed the Khmer Rouge's ability to take over Phnom Penh by several years. |457| Several witnesses testified to being affected by the American bombings and attempting to seek shelter. |458|

156. American bombings ended on 15 August 1973 after the U.S. Congress passed a law blocking funding for the continued bombing of Cambodia on 10 May 1973. |459| There was some evidence of post-15 August 1973 bombing raids on CPK-controlled territory prior to the evacuation of Phnom Penh. Some of these attacks were attributed to the Americans, although these were more likely the result of action by remaining Khmer Republic forces. |460|

3.6. Refugee Conditions and Food Shortages in Phnom Penh

157. From 1970-1975 there was an influx of refugees |461| from the countryside into Phnom Penh, increasing the city's population from around 0.5 million in 1970-71 to an estimated 2 to 2.5 million in April 1975. |462| According to François PONCHAUD, who was working with a refugee organisation in Phnom Penh, people were fleeing the Khmer Rouge as well as the American bombings. |463| Sydney SCHANBERG insisted however that refugees he interviewed spoke of the Khmer Rouge closing in, the seizing of their towns and their wish to feed their children as the reasons for their flight to Phnom Penh. |464| Refugees told Civil Party Denise AFFONCO that they were leaving their villages because the country was at war all around and the capital was the only place with a certain level of safety. |465|

158. By 1975, there were refugee camps surrounding Phnom Penh and several within the city, including one at the Olympic stadium and one at the site of the then incomplete Cambodiana hotel. The food and sanitation situation in these camps, and in Phnom Penh in general, was very poor. |466|

159. The U.S. government was providing aid to the LON Nol government-held areas by transporting rice from South Vietnam to Phnom Penh via the Mekong River, and later by air. |467| The Khmer Rouge targeted these transports to Phnom Penh with mortars and rockets and blocked access via the Mekong River by placing mines. |468| Although there were food shortages already during the period 1970-1975, |469| the food situation in Phnom Penh worsened after the Khmer Rouge cut off access to the Mekong River in 1975. |470| According to NUON Chea, although there was not an abundance of food in the cooperatives, the population needed to be evacuated from Phnom Penh where the food situation was dire so they would have enough to eat. |471| He explained that at the time of the mid-1974 meeting at which it was decided to evacuate Phnom Penh, the United States of America had suspended its aid to Cambodia, and Phnom Penh subsequently experienced a food shorage as an immediate consequence of the end of this support. |472| Thus, the plan was to relocate people to other areas of Cambodia where food was available, such as in the Northwest Zone, to alleviate the food problem in Phnom Penh. |473|

160. A draft 1975 report of the U.S. Agency for International Development attributed the food crisis to "the breakdown of security." |474| The report indicated that rice stocks in Cambodia "were seldom adequate for more than a few weeks," and at one point in November 1974 there was only a three-day supply. The report predicted that "without large scale external food and equipment assistance there will be widespread starvation between now [September 1975] and next February [1976]." |475|

3.7. Final Assault on Phnom Penh

161. Starting in 1973 and increasing in 1974-1975 until the liberation of Phnom Penh, Khmer Rouge forces shelled Phnom Penh with rockets and other ordnance. |476| The Khmer Rouge did not have proper rocket launchers and rockets fell primarily in residential areas. |477| Stephen HEDER was told about the sources of this ordnance by a Japanese military attache whose information likely originated from Khmer Republic military intelligence. |478| He testified that, under the overall direction of the General Staff chaired by SON Sen, 105mm shells were fired from the Special Zone troops commanded by IN Lorn alias Nat, and that the 107mm shells coming from the east were fired by the East Zone Division 1 or 2 troops. |479|

162. With the attacks on LON Nol government-held territories on-going, KOY Thuon and other senior leaders met towards the end of 1974 in Damnach Smach (near Oudong) to plan the liberation of Phnom Penh. |480| Then, on 1 January 1975, the CPK began its final assault on Phnom Penh. |481| The offensive was announced in a statement by KHIEU Samphan in a radio broadcast of 31 December 1974. |482|

163. From February to April 1975, the shelling continued unabated, killing and injuring hundreds of civilians. |483| Around 14-15 April 1975, there was an exodus of thousands of people fleeing from refugee camps in Takhmau towards the centre of Phnom Penh a rocket attack by the Khmer Rouge. |484| Civil Party MEAS Saran, a nurse working in a hospital in Borei Keila, at a hospital designated to receive victims of the rocket attacks, testified that people were terrified by the Khmer Rouge bombing attacks and the influx of people from the countryside. |485|

164. On 1 April 1975, after strategic military losses, President LON Nol was persuaded to resign and went into exile. |486| Two days later, KHIEU Samphan issued a statement announcing that the "seven LON Nol traitors" had fled the country, but indicating the "U.S. Imperialists" were attempting to prolong the war by resorting to negotiation. |487|

165. On 12 April 1975, U.S. marines evacuated the Ambassador and remaining embassy personnel from the U.S. embassy in Phnom Penh, along with Acting President SAUKAM Khoy. |488| On 16 April 1975, the Khmer Republic leadership sent a message to NORODOM Sihanouk in Beijing offering to transfer power immediately to GRUNK, but asking for assurances that there would be no acts of reprisals for acts during active hostilities. |489| NORODOM Sihanouk rejected this offer stating that only an unconditional surrender was acceptable and urging 'first rank traitors' to flee the country because as war criminals they 'deserve nothing less than the gallows.' |490|

166. By the evening of 16 April 1975, CPK military divisions were on the verge of taking over Phnom Penh. |491| Thousands of refugees entered into the city centre. Sydney SCHANBERG described this day in his diary as resulting in the highest number of dead in the five years of war and describes the Preah Ket Mealea Hospital as a "slaughterhouse" that was "wall to wall" with wounded. |492|

167. The Khmer Rouge entered Phnom Penh on 17 April 1975.

4. GENERAL OVERVIEW: 17 APRIL 1975 - 6 JANUARY 1979

168. The Chamber limited Case 002/01 to the factual allegations described in the Closing Order, and characterised as crimes against humanity, as movement of population (phase one), executions of former Khmer Republic officials at Tuol Po Chrey and movement of population (phase two). |493| However, according to the Closing Order, these movements of population, executions and associated crimes form part of a widespread attack against the civilian population carried out throughout the DK era and in all regions of Cambodia. |494| The Chamber therefore considers it necessary to address briefly both the factual allegations charged as crimes against humanity in Case 002/01 and the allegations concerning the larger context of the attack in which these crimes were committed.

169. Between 17 April 1975 and December 1977, the temporal period at issue in Case 002/01, the Khmer Rouge forcibly transferred the population from cities and towns throughout Cambodia to rural areas and between these rural areas in order to neutralise enemies, both internal and external, and to avert the threat of rebellion; to eliminate and temper the capitalist and feudalist classes; and to build and expand cooperatives. |495| The Party identified the 'New People', including former government officials, intellectuals, landowners, capitalists, feudalists and the petty bourgeoisie, as key enemies of the revolution and collectivisation. |496| To neutralise these enemies, the Khmer Rouge re-educated, moved and eliminated 'New People' and other groups incompatible with building socialism including former Khmer Republic officials and, it is alleged, Buddhists, the Cham and the Vietnamese. |497|

170. On 17 April 1975, the Khmer Rouge moved at least two million people from Phnom Penh. |498| The evacuees were provided insufficient, if any, accommodation and assistance, resulting in deaths and suffering. |499| On and after 17 April 1975, people were also displaced from various provincial towns throughout Cambodia, including Kampong Speu, |500| Takeo, |501| Kampot, |502| Sihanoukville (previously, Kampong Som), |503| Kampong Thom, |504| Pailin, |505| Kampong Cham, |506| Kampong Chhnang, |507| Siem Reap, |508| Poipet, |509| Battambang |510| and Pursat. |511| The re-location of many people expelled from Phnom Penh and other towns was still on-going in August 1975. |512|

171. Beginning in September 1975 and continuing throughout 1977, at least 300,000 to 400,000 civilians were forcibly transferred to Battambang and Pursat Provinces, while more than 30,000 were forcibly re-located within regions depending on seasonal labour requirements and to advance the class struggle. |513| These movements were carried out under inhumane conditions leading to deaths. Some died of starvation, exhaustion or sickness while others disappeared. |514| Overall, during the temporal period at issue in Case 002/01, millions were forcibly displaced. The Chamber notes that the Closing Order also alleged that forcible displacement continued throughout 1978. |515|

172. Between 17 and 24 April 1975, Khmer Republic officials were targeted for execution, arrest and detention while cities and towns throughout the newly liberated areas of Cambodia, including Phnom Penh were emptied of their inhabitants. |516| On or around 25 or 26 April 1975, at least 250 former Khmer Republic officials were executed at Tuol Po Chrey. |517| This policy to target Khmer Republic officials continued thereafter with executions, arrests and disappearances reported throughout Cambodia. |518|

173. Meanwhile, according to the Closing Order, throughout the DK era (17 April 1975 to 6 January 1979), there were widespread killings, torture, rape, physical violence, forced marriages, forced labour, disappearances, and/or other instances of inhumane treatment, some of which were carried out on discriminatory grounds. |519| During the DK era, hundreds of thousands of Cambodians victimised by the Khmer Rouge regime sought refuge in Thailand, Vietnam and Laos. |520|

174. By 2008, the Documentation Center of Cambodia ("DC-Cam") had identified an estimated 1.3 million human remains in 390 mass grave sites spread throughout Cambodia. |521| Experts suggest that there is a high probability that those mass grave sites contain the remains of only a sample of those who died as a result of Khmer Rouge policies and actions during the DK era: it is likely that many grave sites have never been identified and that many who died were never buried. |522| Overall, estimates indicate that between 600,000 and 3 million died as a result of Khmer Rouge policies and actions. Within this range, experts accept estimates falling between 1.5 and 2 million excess deaths as the most accurate. |523|

4.1. Chapeau requirements for crimes against humanity listed in Article 5 of the ECCC law

175. Where relevant to Case 002/01, the Closing Order charges the Accused pursuant to Article 5 of the ECCC Law with the following crimes against humanity "committed as part of a widespread or systematic attack directed against any civilian population, on national, political, ethnical, racial or religious grounds": (i) murder, (ii) extermination, (iii) political persecution, and (iv) other inhumane acts comprising (a) attacks against human dignity, (b) forced transfer and (c) enforced disappearances. |524|

4.1.1. Law

176. As previously held by this Chamber and affirmed by the Supreme Court Chamber, crimes against humanity have been established international crimes since the Nuremberg Charter and formed part of customary international law during the period of the ECCC's temporal jurisdiction. |525| Therefore charges of crimes against humanity pursuant Article 5 of the ECCC Law accord with the principle of legality, |526| subject to an additional finding that charged offences or modes of responsibility were "sufficiently foreseeable and that the law providing for such liability [was] sufficiently accessible [to the accused] at the relevant time." |527| Such analysis is to be conducted at the level of the underlying crime or mode of liability, rather than for the category of crimes against humanity as a whole.

177. Offences listed in Article 5 of the ECCC Law constitute crimes against humanity only if the following chapeau requirements are established: (i) there is an attack; (ii) that is widespread or systematic; (iii) and directed against any civilian population; (iv) on national, political, ethnical, racial or religious grounds; (v) there is a nexus between the acts of the direct perpetrator and the attack; and (vi) the accused or the perpetrator has the requisite knowledge. |528| The Chamber has held previously that the definition of crimes against humanity under customary international law in 1975 no longer requires a nexus to armed conflict. |529| Consequently, the Chamber dismisses the argument to the contrary advanced by the Accused. |530|

178. Attack - An attack is a course of conduct involving the commission of a series of acts of violence. |531| It is not limited to the use of armed force, encompassing any mistreatment of the civilian population including that reflected by the underlying offences in Article 5 of the ECCC law. |532| An attack on a civilian population is a separate concept from that of an armed conflict. |533| An attack may precede, outlast or continue through an armed conflict, without necessarily being part of it. |534|

179. Widespread or systematic - The term "widespread" refers to the large-scale nature of the attack and the number of victims, while the term "systematic" refers to the organised nature of the acts of violence and the improbability of their random occurrence. |535| A systematic attack is commonly expressed as a pattern of crimes involving the non-accidental repetition of similar criminal conduct on a regular basis. |536| A widespread attack may refer either to the "cumulative effect of a series of inhumane acts or the singular effect of an inhumane act of extraordinary magnitude." |537| Proof that the attack was either "widespread" or "systematic" is sufficient to establish liability. |538| Only the attack, not the individual acts for which the accused is responsible, must be widespread or systematic. |539| A single act or a limited number of acts can qualify as a crime against humanity provided that they are not isolated or random and all other conditions are met. |540|

180. The KHIEU Samphan Defence submits that the actus reus of crimes against humanity also requires the existence of a State or organisational plan or policy. |541| The NUON Chea Defence similarly submits that the existence of a state policy or plan was a requirement under customary international law for crimes against humanity at the time relevant to the Closing Order. |542| It further submits that international jurisprudence to the contrary "dating from the 2000s" is irrelevant in determining the state of the law at the time relevant to the Closing Order. |543|

181. In the KAING Guek Eav Trial Judgement, this Chamber found that while the existence of a policy or plan may be evidentially relevant in establishing the widespread or systematic nature of the attack, it does not constitute an independent legal element of the crime. |544| While this position accorded with post-1975 jurisprudence from other international tribunals, |545| it was based upon a review of customary international law sources relevant to the operative time period. These sources set out contrasting views on the issue. While the Defence has identified certain sources which support their legal argument, |546| there is also support for the view previously advanced by this Chamber in the KAING Guek Eav Trial Judgement, |547| necessitating the conclusion that state practice and opinio juris at that time did not clearly support a State or organisational plan or policy requirement. As no error has been demonstrated, the Chamber dismisses both challenges.

182. Directed against any civilian population - The attack must be "directed against" any civilian population, meaning that such population must be the primary, as opposed to incidental, target of the attack. |548| It is not necessary to show that the entire population of the relevant geographical entity was subject to the attack. |549| It is sufficient that enough individuals were targeted in the course of the attack or that they were targeted in such a way as to satisfy the Trial Chamber that the attack was in fact directed against a civilian "population", rather than against a limited and randomly selected number of individuals. |550|

183. To qualify as a "civilian population" for the purposes of Article 5 of the ECCC Law, the target population must be of a predominantly civilian nature. |551| The presence within the civilian population of individuals who do not come within the definition of civilians does not necessarily deprive the population of its civilian character. |552| The civilian status of the victims, the number of civilians, and the proportion of civilians within a population are factors relevant to the determination of whether the requirement that an attack be directed against a "civilian population" is fulfilled. |553|

184. Where an attack is carried out in a geographical area that contains both civilians and soldiers, other factors may be relevant to determining whether the attack was directed at a "civilian population". These include the means and method used in the course of the attack, the status of the victims, their number, the discriminatory nature of the attack, the nature of the crimes committed in its course, and the resistance to the assailants at the time and the extent to which the attacking force may be said to have complied or attempted to comply with the precautionary requirements of the laws of war. |554|

185. In determining whether a population may be considered to be 'civilian', the Chamber notes that there was no established definition of civilian under customary international law in April 1975. The ordinary meaning of the term "civilian" (in English) and "civil" (in French) encompasses persons who are not members of the armed forces. On this basis, the Chamber holds that at the time relevant to the charges here at issue, the civilian population included all persons who were not members of the armed forces or otherwise recognised as combatants. While the Chamber does not here rely on the definition of "civilian" set out in Article 50 of Additional Protocol I to the 1949 Geneva Conventions, adopted by the ad hoc Tribunals as reflecting customary international law for the purposes of crimes against humanity post-1977, |555| it notes that this accords with the ordinary meaning of the term. |556|

186. In determining civilian or non-civilian status of a person, the specific situation of the individual at the time of the crimes may not be determinative. A member of an armed organisation is not accorded civilian status by reason of the fact that he or she is not armed or in combat at the time of the commission of the crimes. |557| Accordingly, soldiers hors de combat do not qualify as 'civilians' for the purposes of Article 5 of the ECCC Law. |558| As a general presumption, the armed law enforcement agencies of a State are considered to be civilians for purposes of international humanitarian law. |559| A person shall be considered to be a civilian for as long as there is doubt as to his or her status. |560|

187. Where the civilian population is the object of an attack, "there is no requirement nor is it an element of crimes against humanity that the victims of the underlying crimes be civilians." |561| Thus, a soldier who is hors de combat may be the victim of an act amounting to a crime against humanity, provided that all other necessary conditions are met. |562| Further, the reference to "any" civilian population does not require a demonstration that victims were linked to a particular group. |563| Crimes against humanity may include a state's attack on its own population. |564|

188. National, political, ethnical, racial or religious grounds - Article 5 of the ECCC Law requires that the attack must have been carried out against the civilian population on a discriminatory basis, namely on national, political, ethnical, racial or religious grounds. This is a jurisdictional requirement that narrows the scope of the ECCC's jurisdiction over crimes against humanity when compared with customary international law applying between 1975 and 1979. |565| The requirement qualifies the nature of the broader attack rather than the individual underlying offences, and consequently does not import a discriminatory intent as a legal ingredient for all underlying crimes against humanity, as this would otherwise render redundant the express reference to discrimination within the offence of persecution in Article 5 of the ECCC Law. |566|

189. Jurisprudence concerning the crime of persecution defines an act as discriminatory when a victim is targeted because of his or her membership, or imputed membership, in a political, racial or religious group defined by the perpetrator. |567| The targeted group "may be defined broadly by the perpetrator such that they are characterised in negative terms and include close affiliates or sympathisers ...". |568| This approach is equally applicable to defining a discernible group targeted by an attack.

190. Nexus between the acts of the direct perpetrator and the attack - The acts of the direct perpetrator must be part of the attack, meaning that the acts in question must by their very nature or consequences be objectively part of the attack. |569| A crime that is committed before, after or away from the main attack on the civilian population could still, if sufficiently connected, be part of that attack. The crime must not, however, be an isolated act, i.e. so far removed from the attack that, having considered the context and circumstances in which it was committed, the acts cannot be said to have been part of the attack. |570|

191. Knowledge. An accused or a perpetrator must have known that there is an attack on the civilian population and that his or her acts formed part of the attack. |571| He or she need not know the details of the attack or share the purpose or goals of the broader attack. |572| Evidence of knowledge depends on the facts of a particular case; as a result, the manner in which this legal element may be proved may vary according to the circumstances. |573|

192. The NUON Chea Defence submits that there is a requirement additional to those set out above, namely that an accused must have knowledge of the discriminatory nature of any widespread and systematic attack forming the basis of charges against him or her. |574| They do not advance any authority in support of this assertion. As the ICTR Statute is the only instrument other than the ECCC Law to include the jurisdictional requirement that the attack must have been carried out on a discriminatory basis, ICTR jurisprudence provides useful guidance on this issue. The Chamber's review of ICTR case law reveals that, almost uniformly, |575| the ICTR has not required an accused to have knowledge of the discriminatory nature of the widespread and systematic attack. |576| Similarly, in the KAING Guek Eav Trial Judgement, the Chamber did not require knowledge of the discriminatory nature of the attack. |577| The Chamber finds that such knowledge is not a requirement of crimes against humanity before the ECCC and accordingly rejects this submission.

4.1.2. Legal Findings

193. The Chamber is satisfied that beginning by 17 April 1975 and continuing at least until December 1977, the temporal period at issue in Case 002/01, there was a widespread and systematic attack against the civilian population of Cambodia. The attack took many forms, including forced transfer, murder, extermination, enforced disappearance and persecution. |578| This attack victimised millions of civilians throughout Cambodia and resulted in a large number of refugees fleeing to neighbouring countries. |579| The attack was carried out in furtherance of, and pursuant to, Party policies and plans to build socialism and defend the country. |580| The Chamber is satisfied that the attack was widespread in both its geographical scope and number of victims. The Chamber also finds that the attack was systematic insofar as crimes of such scope and magnitude could not have been random and were carried out repeatedly and deliberately in furtherance of, and pursuant to, Party policies.

194. The Chamber finds that this attack was directed against the civilian population of Cambodia. The armed conflict between the Khmer Republic and Khmer Rouge ended on 17 April 1975 when the Khmer Rouge captured Phnom Penh and the Khmer Republic forces surrendered. |581| Thereafter, all Khmer Republic soldiers not taking a direct part in hostilities were civilians or, at minimum, hors de combat, thereby enjoying the same protections as civilians. In any event, former Khmer Republic soldiers only formed part of the millions of civilians attacked. |582|

195. The Chamber further finds that the attack against the civilian population was carried out on political grounds, pursuant to the plans and policies of the Party to build socialism and defend the country. In order to accomplish this goal, the Party considered that the feudalist and capitalist classes had to be eliminated. |583| These 'New People' were perceived as political and social enemies of the revolution and the collective system. |584| Further, all Cambodians were to be part of the revolution and the collective system. |585| Any who opposed, or were perceived to oppose, the revolution and collective system were targets for mistreatment and acts of violence. |586| The Chamber is therefore satisfied that the attack was carried out on political grounds.

196. According to the Closing Order, parts of the attack also targeted Buddhists, the Chams and the Vietnamese on the basis of their nationality, ethnicity, race and/or religion. |587| These portions of the attack fall outside the scope of Case 002/01. Having already determined that the widespread attack was carried out against the civilian population on political grounds, the Chamber therefore declines to make findings as to whether parts of the attack were also done on national, ethnical, religious and/or racial grounds, as this will be examined in future trials.

197. The Chamber is further satisfied that there is a nexus between the acts of the Accused and the attack. The acts of the direct perpetrators and the Accused during movement of population (phases one and two) and during executions of former Khmer Republic officials at Tuol Po Chrey were committed between 17 April 1975 and December 1977 and were done pursuant to, and in furtherance of, the Party's policies and plans to defend and build socialism. |588| Finally, considering the scale and scope of the attack |589| and the fact that it was undertaken in furtherance of, and pursuant to, Party policies and plans, |590| the Chamber is satisfied that both the direct perpetrators and the Accused knew of the attack on the civilian population and that their acts formed part of this attack.

198. The Chamber is thus satisfied that all the chapeau requirements for the application of Article 5 of the ECCC Law are met.

5. ADMINISTRATIVE STRUCTURES

5.1. Structure of the CPK

199. The precise operational structure of the CPK was shrouded in secrecy. |591| In the early days of the Party, secrecy was essential to its survival as an underground revolutionary movement. |592| Even after the CPK rose to power in 1975, however, it continued to obfuscate and obscure its internal workings, largely to protect itself from perceived external enemies. |593| Limited, if any, information about the leadership structure was accessible to ordinary people, who were often simply required to obey without question decisions made by 'Angkar' (literally 'organisation'), an anonymous entity seen as having the power to control the whole of society. |594| Lower-ranking cadres sometimes had only a cursory understanding of the organisation of power in the CPK. |595| This policy of secrecy undoubtedly accounted for some of the confusion and contradiction within the testimony of witnesses who appeared before the Trial Chamber. |596| In its totality, however, the evidence put before the Chamber has enabled it to reconstruct the organisational lines of the CPK in the relevant period.

200. The administrative structure of the CPK was formalised for the first time in a statute passed by the First Party Congress of what was then called the Worker's Party of Cambodia in September-October 1960. |597| It is likely that a second statute was adopted at the Third Party Congress in or around August 1971. |598| In any event, another statute was enacted at the Fourth Party Congress in January 1976. |599| Only the last of these was put before the Trial Chamber, |600| but according to Witness KAING Guek Eav, the various statutes were similar in content, at least insofar as they dealt with the internal structures and hierarchy of the CPK. |601|

5.1.1. Party Congress

201. The 1976 statute ("CPK Statute") set out the lines along which the Party was officially organised. The "highest power rights throughout the country" were vested in the General Conference, or Party Congress. |602| The role of the Congress was to "designate the political line and Statute" of the Party and select and appoint the members of the Central Committee. |603| In addition to the First, Second, Third and Fourth Party Congresses mentioned above, a Fifth Party Congress was convened in late 1978. |604| The 1976 and 1978 Congresses were attended by hundreds of people, including representatives from all Sectors and military Divisions, as well as the CPK Central Committee members. |605|

5.1.2. Central Committee and Standing Committee

202. The CPK Statute provided that between Party Congresses, the Central Committee was nominally the "highest operational unit throughout the country". |606| In principle, the Central Committee was responsible for implementing the Party line and Statute throughout the CPK; for instructing Zone-level, Sector-level and other Party organisations "to carry out activities according to the political line and [the Party's] ideological and organizational principles"; for governing and arranging cadres and Party members; and for communicating with fraternal "Marxist-Leninist" parties. |607| The Central Committee met at least every six months, as required by the CPK Statute. |608| The identity and number of members changed repeatedly between 1960 and 1979, but at its peak in the 1970s the Central Committee comprised between 20 and 30 people. |609| Members included TOU Samuth, who served as CPK Secretary from 1960 until his disappearance in 1962; |610| POL Pot, who joined the Central Committee upon its formation in 1960 and took over the post of CPK Secretary in 1963; |611| NUON Chea, who was elected to the Central Committee as CPK Deputy Secretary in 1960; |612| and KHIEU Samphan, who joined the Central Committee as a candidate member in 1971 and became a full-rights member in 1976. |613| According to the CPK Statute, candidate members could "participate in Central Committee meetings, but [had] no decision rights". |614|

203. Although the CPK Statute vested the highest level of operational authority in the Central Committee, effective control over the CPK was ultimately exercised by an extra-statutory body known as the Standing Committee. |615| The Standing Committee came into existence at the same time as the Central Committee in 1960. |616| It met approximately every seven to 10 days, or more frequently if the circumstances so required. |617| It comprised seven members, all of whom were drawn from the Central Committee. |618| As with the Central Committee, membership of the Standing Committee was reshuffled from time to time. |619| POL Pot, IENG Sary, SAO Phim and NUON Chea were members of the Standing Committee from its inception. |620| Ta Mok joined in 1963. |621| SON Sen alias Khieu was a candidate or alternate (as opposed to full-rights) member of the Standing Committee, |622| and SOK Thuok alias VORN Vet was either a full-rights or a candidate member. |623| SUA Vasi alias Doeun and KHIEU Samphan were never formally members of the Standing Committee, but they both attended a number of its meetings. |624| Standing Committee meetings could be (and often were) convened in the absence of one or more Committee members. |625|

5.1.3. Military Committee

204. The Military Committee was another extra-statutory sub-committee of the Central Committee. The Military Committee was chaired by POL Pot and was responsible for military and security affairs. |626| SON Sen was also a member of the Military Committee. |627| Although the Closing Order alleges that NUON Chea was a member of the Military Committee, the Chamber is not satisfied on the available evidence that this has been demonstrated. |628|

5.1.4. Party Centre

205. Several of the witnesses and experts who testified before the Chamber used the phrase 'Party Centre' to refer to the senior leadership tier of the CPK. However, as Witness Stephen HEDER pointed out, 'Party Centre' was a nebulous term: sometimes it was used in a collective sense to describe an entire "level within the Party hierarchy", and sometimes it was used to designate a specific entity or body within the upper echelon of the CPK (such as the Central Committee, the Standing Committee or one of its connected offices, or even POL Pot himself). |629| The phrase 'Party Centre' also appeared in a number of documents put before the Chamber, including both DK-era documents and subsequent academic commentaries, generally without definition but in a context which made clear that it was referring to the top levels of the CPK hierarchy (or some constituent element thereof). |630|

206. In this Judgement, the Chamber uses the phrase 'Party Centre' to refer collectively to the senior executive organs of the CPK based in Phnom Penh -namely, the Standing Committee, Central Committee, Military Committee, Office 870, Government Office (S-71) and sub-offices of the Government Office.

5.1.5. Office 870

207. The code number '870' was used ambiguously in the DK period to refer to a variety of persons and entities connected with the Party Centre. Different witnesses had different understandings of '870' but generally agreed that it referred to some aspect of the CPK leadership. According to Witness Stephen HEDER, '870' was in use as early as 1971 to designate "the centre echelon of the Party". |631| Expert David CHANDLER told the Chamber that '870' was "generally [used] to refer to Pol Pot, and sometimes to Pol Pot and a small group of people around him". |632| Witness NORNG Sophang testified that '870' "referred to the Centre". |633| Expert Philip SHORT stated that '870' was "the code name for the Standing Committee". |634| This uncertainty as to the precise meaning of '870' was consistent with the CPK's general emphasis on secrecy and, as Expert David CHANDLER observed, intentional: the use of the code number served to conceal or obscure the true nature of the CPK leadership. |635|

208. A number of documents from the DK era contain references to a 'Committee 870'. |636| Although the Co-Prosecutors submit that Committee 870 was the CPK Central Committee, it is equally plausible that Committee 870 was the Standing Committee, and the Chamber is unable to make a definitive finding in this regard. |637|

209. In addition to Committee 870, there was a discrete entity known as 'Office 870', 'Political Office of 870', 'M-870' (the 'M' standing for 'munti', the Khmer word for 'office') or 'Office of the Standing Committee' ('Office 870'). |638| As of October 1975, SUA Vasi alias Doeun was in charge of Office 870. |639| KHIEU Samphan joined Office 870 in or around October 1975. |640| In the words of Philip SHORT, Office 870 functioned as the "executive arm" of the Standing Committee. |641| Its tasks were to implement, and to monitor implementation of, Standing Committee decisions, and to "[make] contact back and forth with each section" of the CPK's upper echelons on behalf of the Standing Committee. |642| Both Philip SHORT and David CHANDLER used the phrase "nerve centre" to describe the critically important role of Office 870 in the transmission of information to and from the Standing Committee. |643|

210. One set of Standing Committee minutes mentions another, separate entity known as 'Bureau 870' (in Khmer, 'karilayai 870', as opposed to 'munti 870'). |644| As of October 1975, it was headed by SIM Son alias Yem. |645| Its precise function remains unknown, but its Khmer title suggests that its role was more administrative than political. |646|

5.1.6. Government Office (S- 71) and sub-offices

211. As well as Office 870, the Party Centre maintained an administrative office, which was referred to in CPK Standing Committee meeting minutes as the 'Government Office'. |647| As of October 1975, the Government Office was run by CHFMM Sam Aok alias Pang. |648| Several witnesses referred to the unit headed by Pang as 'S-71', and a section or ministry designated 'S-71' appears repeatedly in the lists of prisoners brought to the S-21 Security Office, suggesting that 'S-71' was the code name for the Government Office. |649|

212. S-71 may have been a division of Office 870, or it may have been a separate entity. Although Standing Committee meeting minutes suggest that they were distinct, |650| Witness Stephen HEDER recalled that many of the people he had interviewed conflated the two offices, and indeed several witnesses who testified before the Trial Chamber referred to the unit run by CHFMM Sam Aok alias Pang using the code number '870'. |651| According to a number of other witnesses, however, S-71 under Pang performed a different function from Office 870 under SUA Vasi alias Doeun. Whereas Doeun's Office 870 was concerned with matters of policy implementation, Pang's S-71 office dealt primarily with logistical, practical and administrative tasks. |652|

213. In particular, S-71 oversaw a variety of sub-offices and units, which themselves performed support functions for the Party Centre and which were mostly identified by code names beginning with the prefix 'K'. |653| K-1 was the compound in Phnom Penh within which POL Pot lived and worked. |654| K-3 was another residential and office compound in Phnom Penh for the CPK senior leaders, including NUON Chea and KHIEU Samphan. |655| K-6 was a CPK political school at Borei Keila in Phnom Penh. |656| K-7 was the messenger unit. |657| K-8 was responsible for growing vegetables. |658| K-9 was a textile factory. |659| K-11 was a medical facility. |660| K-12 organised motor vehicles and drivers. |661| K-15 was a political training school, principally (but not exclusively) for Cambodians returning from overseas. |662| K-18 was a telegraph office. |663|

214. S-71 was also empowered to make arrests and to transfer detainees to the S-21 Security Office. |664| In 1978, CHFMM Sam Aok alias Pang was himself arrested and taken to S-21, and his deputy KHAN Lin alias Ken took charge of S-71. |665|

5.1.7. Zones, Sectors, Districts and sub-district entities

215. Below the level of the Party Centre, Democratic Kampuchea was divided into a hierarchical series of administrative areas. At the top of this hierarchy were the Zones. The Zones were originally devised by the CPK in the pre-1975 period of armed struggle. |666| Initially, there were six zones: the North Zone (given the code number 304 |667|), the Northwest Zone (code number 560 |668|), the Northeast Zone (code number 108, later changed to 109 |669|), the Southwest Zone (405 |670|), the East Zone (203 |671|) and the Special Zone (which comprised the area around Phnom Penh). |672|

216. After the capture of Phnom Penh in 1975, the Zone boundaries were redrawn: a new West Zone (code number 401) was added, and the Special Zone around Phnom Penh was dissolved and absorbed into neighbouring Zones. |673| The Zones did not follow existing provincial boundaries precisely; for example, the East Zone encompassed Prey Veng and Svay Rieng as well as parts of Kratie, Kandal and Kampong Cham Provinces. |674| By 1975 there were also a number of autonomous or 'specially-assigned' Sectors- namely Preah Vihear (code number 103), Mondulkiri (105), Siem Reap/Oddar Meanchey (106), Kratie (505) and the city of Kampong Som - which did not fall within any Zone and which answered directly to the Party Centre. |675| Further restructuring took place in or around 1977: a new North Zone (code number 801) was created out of what had previously been the Preah Vihear and Siem Reap/Oddar Meanchey Autonomous Sectors, and the old North Zone was renamed 'Central Zone'. |676|

217. Each Zone was sub-divided into a number of Sectors (also known as 'Regions'), which were generally known by their code numbers. |677| Sectors were further divided into Districts, which were in turn made up of sub-district entities, including Communes. |678| Within the communes, individual villages were gradually combined into co-operatives, in which people lived, worked, studied and ate communally. |679| In some areas, co-operatives were treated as sub-units of the communes, and were subject to the authority of the commune leadership. |680| In other areas, however, large co-operatives eventually replaced communes as the lowest administrative sub-regions in the CPK hierarchy. |681|

218. All levels of the hierarchy - Zones, Sectors, Districts, Communes and co-operatives - were governed by committees. |682| Committees typically comprised a secretary (or chairman), a deputy secretary (or deputy chairman) and at least one other member. |683| Within each committee, particular areas of policy responsibility were often delegated to an individual committee member or sub-committee. |684| The committee secretary in each echelon was usually appointed by the committee of the level immediately above. |685| For example, commune secretaries were appointed by District committees, |686| and District secretaries by Sector committees. |687| In principle, committees were required by the CPK Statute to convene conferences at regular intervals in order to select new members, but in practice committee members were (like secretaries) generally appointed by the committee of the level immediately above. |688|

219. The committee secretary in each tier was also generally a member (or at least attended the meetings) of the committee of the echelon immediately above: thus, commune secretaries would attend meetings of the District committee, |689| District secretaries would attend meetings of the Sector committee |690| and Sector secretaries would attend meetings of the Zone committee. |691| Zone secretaries, such as MUOL Sambath alias ROS Nhim (secretary of the Northwest Zone), were usually members of the Central Committee. |692| Some, such as SAO Phim (secretary of the East Zone) and Ta Mok (secretary of the Southwest Zone), were also members of the Standing Committee. |693|

220. Other Zone secretaries in the DK period included CHOU Chet alias Si, who served as secretary of the West Zone until he was arrested in 1978; |694| KE Vin alias KE Pauk, who replaced KOY Thuon as secretary of the original North Zone (later to become the Central Zone) in 1975; |695| CHANN Sam alias KANG Chap alias Se, who served as secretary of the new North Zone until his arrest in 1978; |696| and MEN San alias NEY Sarann alias Ya, who served as secretary of the Northeast Zone until he was replaced, probably by his deputy UM Neng alias Vi. |697|

5.1.8. Angkar

221. The word 'Angkar' was widely used from the early days of the Cambodian communist movement to refer to the party that became the CPK. |698| Like the phrase 'Party Centre', however, it was a vague and obfuscatory term. |699| For example, Civil Party ROMAM Yun described a committee appointed by the local commune as a manifestation of 'Angkar'; |700| but to others, 'Angkar' was a code word for the higher echelons of the CPK. |701| Witness KAING Guek Eav stated that when he used the word 'Angkar', he was referring to "the Party Central Committee or any particular person representing Pol Pot or the Party Central Committee", although he added that others used the term differently. |702| A reference to 'Angkar' in a document was sometimes a reference to a specific senior member of the CPK, such as SON Sen or POL Pot. |703| Witness SAUT Toeung testified that, in his understanding, 'Angkar' meant POL Pot and NUON Chea. |704| The frequency with which individuals and "bad elements" held themselves out to be 'Angkar' prompted Committee 870 to issue a directive in 1977 in the following terms:

    1. The term "Angkar" or "Party" is used only for the organization. It shall not be used for any individual.

    2. For individual (sic): "comrade", "this person's name", or "comrade in this or that position", or "comrade representing Angkar at this or that level" shall be used. |705|

222. However, it is not clear to what extent the directive was circulated amongst ordinary people. Although Witness PECH Chim, a former District secretary, recalled teaching people "not to refer to any particular individual as Angkar", it was uncertain whether this was a result of the directive or not; and it is obvious that many of those interviewed by the OCIJ never fully grasped the meaning of 'Angkar', either before or after 1977. |706|

5.1.9. Democratic Centralism

223. Broadly speaking, the CPK was organised in accordance with the principle of 'democratic centralism'. As set out in the CPK Statute, this concept had two dimensions. First, decisions would be made democratically, that is collectively rather than individually. |707| Structurally, this was reflected in the ubiquity of committees within the CPK hierarchy. Second, decisions would be made centrally, by the upper echelons of the Party, to whom the lower echelons would report and from whom they would receive instructions. |708| This was reflected in the pyramidal leadership structure of the Party, with power concentrated in a small Standing Committee to which all other tiers were functionally subordinate.

224. The NUON Chea Defence argues that it was ultimately POL Pot, not the entire Standing Committee, who was responsible for the decisions ostensibly emanating from the Standing Committee. |709| This is at odds, however, with NUON Chea's own evidence, in which he stated clearly that the principle of collective decision-making was implemented "at every stage, at all [...] times" in the CPK, and specifically at the meetings of the Central and Standing Committees which he attended. |710| As NUON Chea explained to the Chamber:

    "[C]ollectivity" means everybody would participate in a meeting to express the ideas. Every meeting adhered to this principle, and not only at the Central Committee - Central or Standing Committees' level. And then the Secretary of the Party would consolidate all those ideas and opinions, and if members of the Party are not satisfied, then all together would be able to express their objections or opposal (sic) until they reach a unanimous agreement, then it would become official. Otherwise, if there is no complete agreement, discussion needs to continue.

Similarly, when asked in a 2006 interview whether POL Pot had a monopoly on power during the DK era, NUON Chea rejected this proposition and stated that decisions were made collectively. |711|

225. KHIEU Samphan also indicated that key decisions were made collectively. In respect of the Standing Committee's decision to evacuate Phnom Penh, he said that "if there had been a single voice against the evacuations, there could have been no evacuations". |712| However, IENG Sary claimed that his own individual dissent was not enough to stop the Standing Committee from proceeding with the abolition of currency in 1975. |713|

226. Expert David CHANDLER testified that, although POL Pot would have had the "last word" in decision-making as CPK Secretary, there was no evidence that he had made decisions alone during the DK period:

    There's no evidence that the Standing Committee was not in most cases cohesive. I say "most cases" because some of them were taken away and executed, but certainly there's no evidence that they - was any public disagreement that he overrode with a singular decision. The atmosphere was collegial, this was a place where I think he was given this authority, but I don't have the evidence that he ever used a one-man authority to override the collective view of all his committee. |714|

227. Expert Philip SHORT cast the meetings of the Standing Committee in a slightly different light: in his opinion, POL Pot solicited the opinions of other members at Standing Committee meetings and incorporated their remarks in his conclusions, but "the policy that emerged was that which he had essentially decided himself before the meeting even began". |715|

228. In light of the evidence given by NUON Chea, KHIEU Samphan and IENG Sary - all of whom attended or participated in meetings of the Standing Committee -the Chamber is satisfied that key decisions of the Standing Committee were not simply made unilaterally by POL Pot, but rather were made collectively; that is to say, with the input of, and with a broad consensus from, the entire Committee. However, the Chamber is unable to conclude that unanimity was required in decision-making, and therefore leaves open the possibility that individual members may have disagreed with particular decisions from time to time.

5.2. Structure of Democratic Kampuchea

229. In April 1975, as Phnom Penh fell to the military forces of the CPK and the LON Nol regime collapsed, foreign governments began to extend formal diplomatic recognition to the GRUNK. |716| An invitation by the United States government to NORODOM Sihanouk to return immediately to Cambodia and take power went unheeded, and U.S. embassy personnel were evacuated from Phnom Penh on 12 April 1975 together with acting Prime Minister SAUKHAM Khoy. |717| By 17 April 1975, most of the remaining senior leaders of the Khmer Republic had fled the country and the CPK/FUNK takeover was complete. |718|

230. In reality, the GRUNK administration that took power in Cambodia was a facade, and it was the CPK that exercised actual control. |719| NORODOM Sihanouk had foreseen this outcome two years earlier, telling an audience in China:

    After the war is over, Prince Sihanouk will only be a symbol of national unity...In reality power will be in the hands of the Khmer Rouge. |720|

231. One commentator in 1975 observed that the GRUNK cabinet was dominated by the Khmer Rouge, with "only two 'Sihanoukists'" amongst its members. |721| NORODOM Sihanouk himself, though ostensibly the head of state, did not arrive in Phnom Penh until September 1975, having spent the previous months in Beijing and Pyongyang. |722|

232. In October 1975, the CPK Standing Committee assigned specific areas of policy responsibility to 13 senior members, including NUON Chea (given responsibility for "Party Affairs, Social Action, Culture, Propaganda and Education") and KHIEU Samphan (given responsibility for "the Front and the Royal Government, and Commerce for accounting and pricing"). |723| IENG Sary was assigned "Foreign Affairs work, both Party and State", while POL Pot retained "general responsibility over the military and the economy". |724| KOY Thuon alias Thuch was assigned "Domestic and International Commerce", SON Sen was to deal with the "General Staff and Security", VORN Vet was given responsibility for "Industry, Railroads and Fisheries", IENG Thirith alias Phea was to take charge of "Culture, Social Action and Foreign Affairs", YUN Yat alias At was assigned "Propaganda and Re-education, both internal and external" and NON Suon alias Chey was to deal with "Agriculture". |725|

233. On 14 December 1975, KHIEU Samphan presented a new draft constitution at a national congress in Phnom Penh. |726| On 5 January 1976, the constitution ("DK Constitution") came into effect, and the state of Democratic Kampuchea was born. |727| The DK Constitution vested legislative power in a People's Representative Assembly ("PRA"), which was to comprise 250 elected members. |728| The government was to be elected by, and answerable to, the members of the PRA. |729| "People's courts" were also to be appointed by the PRA. |730| In place of the monarchy, the DK Constitution provided for a State Presidium - again, to be appointed by the PRA - to represent the state of DK at home and overseas. |731|

234. All this, too, was a facade. Minutes of a meeting of the CPK Standing Committee reflect the Standing Committee's view that the PRA was "worthless" and cautioned members not to "speak playfully about the Assembly in front of the people to let them see that we are deceptive". |732| Although the DK Constitution envisaged "direct and prompt general elections by secret ballot to be held throughout the country" to select the members of the PRA, no such nationwide elections were held; at best, voting took place at a limited number of locations, and it is not clear whether voters were presented with any actual choice of candidates. |733| Witnesses PRAK Yut and UNG Ren did not know that they were candidates for the PRA until they were notified by their superiors that they had been appointed, and even after their appointments they remained uncertain as to the nature of their roles and responsibilities as PRA representatives. |734| Neither of them recalled attending any meetings of the PRA or voting on any legislation. |735|

235. On 30 March 1976 - after the purported election of the PRA but prior to its inaugural session |736| - the CPK Central Committee nominated NUON Chea as chairman of the PRA Standing Committee and named KHIEU Samphan chairman of the State Presidium (i.e. President of Democratic Kampuchea). |737| The Central Committee also appointed several members of the government, including POL Pot (who was named Prime Minister), IENG Sary (named Deputy Prime Minister for Foreign Affairs), VORN Vet (named Deputy Prime Minister for Economics and Finance) and SON Sen (named Deputy Prime Minister for National Defence). |738|

236. In April 1976, NORODOM Sihanouk announced his retirement as head of state. |739| A few days later, all members of GRUNK resigned to make way for the new government. |740| From 11 to 13 April 1976, the PRA met for its inaugural session, at which it ostensibly selected and appointed the members of the PRA Standing Committee, State Presidium and government. |741| In reality, the PRA simply rubber-stamped the choices that had already been made by the CPK. |742|

237. The government, too, was little more than an instrument of the CPK. |743| It was, as Expert David CHANDLER described it, a "government by and for [the] ruling party"; there were no balancing elements to CPK rule. |744| Government ministers and ministerial staff reported to and took directions from the CPK Standing Committee. |745| Minutes of a CPK Central Committee meeting reflect the Central Committee's view that the government "must be totally an organization of the Party". |746| Government ministers met with POL Pot - who by then served as both Prime Minister and CPK Secretary - at gatherings of the Council of Ministers. |747| At the first such meeting, POL Pot made it clear that the primary function of the DK government was to implement the CPK party line:

    The true nature of our new government is that of a revolutionary government of the pure worker-peasants, of the pure Communist Party of Kampuchea...members of the Government and members of the Committees in all sectors must grasp the true nature of our Government and our duties, and strive to fulfill their tasks well, following the Party line. Grasping the Party line means grasping the organizational stance of the Party and grasping the political objectives of the Party in every Sector in order to implement the policies of the Party well and correctly...

    ...[I]n the frameworks of each of the individual ministries, it is likewise. That is, we must strive to fulfil our tasks along the Party line correctly, carefully, and completely. |748|

238. As to the third branch of the state envisaged by the DK Constitution, the judiciary, the PRA professed to create (and appoint the chairman of) a 'Judicial Committee' at its session in April 1976. |749| However, no functioning judicial system was ever established under the DK regime. |750|

239. The NUON Chea Defence submits that the Closing Order is inaccurate insofar as it suggests that the CPK was co-extensive with the DK administration. |751| However, the highest offices of state in DK - Prime Minister, President and chairman of the PRA - were occupied by senior CPK members. Other government leaders and ministers were appointed by, and reported to, the CPK. There was no functioning legislative or judicial branch. In short, DK was, in the words of KHIEU Samphan, a country where "the party leads the state". |752|

5.3. Structure of the CPK military forces

5.3.1. Formation of the Revolutionary Army of Kampuchea

240. When the CPK/FUNK took control of Phnom Penh on 17 April 1975, the CPK military forces - which had been fighting under the banner of the Cambodian People's National Liberation Armed Forces ("CPNLAF") |753| - were under the direct control of the Zones, not the Party Centre. |754| On 22 July 1975, POL Pot announced the formation of a new Revolutionary Army of Kampuchea ("RAK"), bringing a number of Zone military brigades under the control of the Central Committee - specifically, under the command of the General Staff, headed by SON Sen. |755| The units created under the General Staff ("Centre Divisions") included Division 164, the navy; Division 170; Division 290; Division 310; Division 450; Division 502, the air force; Division 703; Division 801; and Division 920. |756| Several 'independent regiments' were also established under the General Staff, each tasked with a specific function: examples included a tank unit, an artillery unit and the S-21 Security Office. |757| Divisions were re-organised and re-named on more than one occasion after 1975. |758|

241. The role of the RAK was set out in Article 19 of the DK Constitution: its functions were to "defend the State power of the Kampuchean people and of [...] Kampuchea", and to "help build a country growing more prosperous every day to improve and develop the people's standard of living". |759| However, the RAK was very much an army of the CPK rather than the state institutions. The CPK Statute specified that the RAK "must be in very (sic) part under the absolute leadership monopoly of the Communist Party of Kampuchea". |760| The CPK magazine Revolutionary Flag similarly described the RAK as "pure" and "resolutely committed to the Party". |761|

5.3.2. Structure of the RAK

242. As with the civilian administrative structures of the CPK, the RAK was arranged in a pyramidal hierarchy. At the top (albeit subject to the supervision of the Central Committee and the Military Committee) was the General Staff. |762| The General Staff was in overall command of the Centre Divisions and dealt with military affairs such as supply, logistics, arms, personnel, communications and information. |763|

243. Immediately below the General Staff were the Centre Divisions and independent regiments, each of which was led by a Division Commander. |764| The Centre Divisions were sub-divided into smaller units. Typically, there were three regiments to a Division; three battalions to a regiment; three companies to a battalion; three platoons to a company; three squads to a platoon; and around 12 soldiers to a squad. |765| At the level of the company and above, each echelon was headed by a commanding officer (also known as a 'chairman' or 'commissar'), usually assisted by two subordinates. |766|

244. A number of witnesses indicated that there was an additional command level between the regiments and the Divisions: specifically, that three regiments made up a 'brigade', and that each Division comprised around three such brigades. |767| Precise organisational structures may therefore have varied between the Divisions.

5.3.3. Regional and guerrilla forces

245. Both the DK Constitution and the CPK Statute distinguished between three branches of the RAK: the "regular" forces, the "regional" or "Sector" forces and the "guerrilla" forces or "militia". |768| The evidence put before the Chamber did not clearly differentiate between the structure of the 'regular' and the 'regional' forces; however, it did establish that Sectors and Districts maintained their own military forces, separate from the Centre Divisions, primarily for the purpose of territorial defence. |769| Moreover, even after POL Pot's reorganisation of the military in 1975, some divisions remained under the direct control of Zone leaders. |770|

246. In addition to the Zone, Sector and District armies, there also existed local militias, which were under the control of the sub-district leaders and which were responsible for security and discipline in the villages, communes and co-operatives. |771|

6. COMMUNICATION STRUCTURE

6.1. Methods of Communication

6.1.1. Telegrams

247. Prior to 1975, the CPK used telegrams to communicate both within Cambodia and externally with contacts in foreign countries. For example, telegrams were used to send messages between the Zones and the Party leaders in their headquarters, and also to make contact with FUNK and GRUNK representatives in Vietnam and China. |772|

248. After the seizure of Phnom Penh in 1975, CPK telegraph offices were established in the city. |773| Telegrams were transmitted and received at K-18, and were encrypted or decrypted as necessary either at K-1 or at an office within Sothearos School. |774| Zones, Autonomous Sectors, Sectors and Divisions around the country also maintained their own telegraph units. |775| The system remained in place until the arrival of the Vietnamese in Phnom Penh in 1979. |776| Telegrams were primarily used for long-distance communication; the various offices of the Party Centre would not typically use telegrams to contact each other within Phnom Penh. |777|

249. Most, but not all, CPK telegrams were encrypted before transmission. |778| Unencrypted messages were sent in Morse code. |779| Secret messages were encrypted using a substitution cipher. |780| Additional layers of encryption were used for highly confidential messages, such as those pertaining to cadres' travel plans. |781| Special code numbers were also used to refer to specific individuals, locations and offices. |782|

250. Telegrams were generally encrypted (or decrypted) and transmitted (or received) by different people. |783| Thus, outgoing telegrams were usually prepared in writing and delivered to an 'encoder'; the encrypted messages were then sent to a separate telegraph operator for transmission. |784| At the other end, the encrypted messages were received and transcribed by another telegraph operator, before being taken to a 'decoder' for decryption. |785| The decrypted messages were then delivered by messenger to the final recipients. |786| Witness NORNG Sophang, who ran the telegram encryption and decryption unit at Sothearos School from 1975 onwards, |787| confirmed that this separation of responsibilities was intended to "preserve the principle of secrecy" within the CPK. |788|

6.1.2. Mail

251. The various organs of the Party Centre and the Zones, Sectors, Districts and sub-district entities also communicated with each other by letter. |789| Although telegrams were generally preferred for long-distance communications, lengthier messages and reports were sent by mail, which was delivered by messengers. |790| In Phnom Penh, incoming mail for the Party Centre was generally directed through K-7, the messenger unit. |791| Zones, Sectors and Districts had their own messenger networks. |792|

6.1.3. Telephone

252. Evidence before the Chamber proves that some of the leaders, offices and units of the Party Centre and the DK Government communicated with each other by telephone. |793| However, not all of the offices in Phnom Penh were connected to each other through the telephone network. |794|

253. The evidence before the Chamber is inconclusive as to whether officials at the Zone or Sector level also had access to telephone connections. |795| Certain military units, including Division 164 (the navy), occasionally reported to the Party Centre by telephone. |796| However, in a meeting with senior officers in December 1976, SON Sen cautioned military personnel to avoid "liberal use" of the telephone so as to prevent he interception of communications by "the enemy". |797|

6.1.4. Radio

254. Prior to 1975, a FUNK radio station in Hanoi - staffed mainly by CPK members, including IENG Thirith - broadcast revolutionary propaganda in Khmer to Cambodians in Cambodia and abroad. |798| The CPK also maintained a mobile radio broadcast unit in Cambodia, which had a more limited transmission range, and which similarly broadcast news, propaganda and revolutionary messages. |799|

255. After the fall of Phnom Penh in 1975, the CPK established a radio station in the capital at Stung Meanchey. |800| The station broadcast news, propaganda, music, recordings of speeches by the CPK senior leaders (including NUON Chea and KHIEU Samphan) and recordings of interviews with CPK leaders (including KHIEU Samphan). |801|

256. The Ministry of Propaganda and Information was responsible for preparing material for broadcast, under the guidance and close scrutiny of the Standing Committee. |802| Radio programs reported on matters such as agriculture, construction projects, arrests and perceived enemies, and exhorted listeners to work hard, defend the country and follow the Party line. |803| One program was targeted in particular at Khmer listeners in Kampuchea Krom. |804| Another program, broadcast at least partially in Vietnamese, consisted of recordings of the confessions of Vietnamese soldiers captured in Cambodia. |805| In March 1976, the Standing Committee ordered frequent radio broadcasts on the topic of the forthcoming 'elections', observing that "if we do not broadcast they [enemies] will say we are dictators and there is no democracy". |806|

257. The Ministry of Foreign Affairs also prepared propaganda for foreign consumption: radio programs on the situation in DK were broadcast in Vietnamese, English, French and Chinese. |807|

258. At some work sites in Cambodia, loudspeakers were installed so that local people could listen to the CPK radio station. |808| Witness CHEA Say recalled that he and his colleagues listened to a shared radio at K-12, but did not have personal radio sets. |809| Ordinary people in Cambodia did not generally have free access to information through the radio in the DK period. |810|

259. Public radio broadcasts emanating from Cambodia (and other countries in the region) were monitored, recorded and translated by United States government personnel in Thailand. Reports of the broadcasts were transmitted to U.S. embassies around the world by teletype as part of the 'Foreign Broadcast Information Service' ('FBIS'). |811| Forty -nine compilations of FBIS reports were put before the Chamber in the course of the trial. |812|

260. Summaries and transcriptions of DK radio broadcasts were also compiled, translated into English and published by the British Broadcasting Corporation ('BBC') as part of its 'Summary of World Broadcasts' ('SWB') service. |813| Forty-five collections of SWB reports were put before the Chamber in the course of the trial. |814|

6.1.5. Magazines

261. Beginning in the period before 1975, the CPK published Party magazines entitled Revolutionary Flag and Revolutionary Youth approximately on a monthly basis. |815| Prior to 1975, Revolutionary Flag was prepared and circulated in secret: it was written by hand, and a small number of copies were made for distribution. |816|

262. From 1975 onwards, Revolutionary Flag magazines were typewritten, and copies were produced by offset printing. |817| Both Revolutionary Flag and Revolutionary Youth were printed at the K-25 and K-26 facilities, which came under the authority of the Ministry of Propaganda and Information, headed by HOU Nim. |818| Witness KIM Vun, who worked for the Ministry of Propaganda and Information, was unable to give a precise estimate of the number of copies printed. However, for each issue he recalled seeing "stacks of magazines" being prepared for delivery. |819|

263. Revolutionary Flag and Revolutionary Youth magazines were distributed only to CPK members, although not every member was given his own copy. |820| Copies were expected to be shared amongst several members. |821| Copies were delivered to DK Ministries, military units and offices of the Party Centre, and to officials at the Zone, Sector, District and sub-district levels. |822|

264. NUON Chea initially denied that he played any role in "establishing" the Revolutionary Flag publication. |823| However, he subsequently admitted that Revolutionary Flag was written by members of the Standing Committee, principally himself and POL Pot. |824| This was consistent with NUON Chea's admitted role as "a candidate in charge of propaganda and writing articles for the news papers" for the Indochina Communist Party and the Khmer People's Revolutionary Party -forerunners of the CPK |825| - in the 1950s. |826| NUON Chea later changed his position again, denying that he was the author of any articles published in Revolutionary Flag and claiming that POL Pot had "a personal assistant who was fully in charge of writing the articles". |827| Shortly thereafter, NUON Chea refused to submit to further cross-examination. |828| In light of his previous admissions and the sporadic exercise of his right to remain silent, the Chamber finds NUON Chea's denial implausible, and is satisfied that he was indeed one of the principal authors of the Revolutionary Flag magazine. |829|

265. The CPK considered it important that its members read Revolutionary Flag. |830| Revolutionary Flag was frequently used for educational purposes at CPK political study or training sessions. |831| Revolutionary Youth was targeted in particular at members of the CPK Youth League. |832| The magazines contained material such as speeches and presentations given by the CPK leaders; |833| articles on the history of the CPK, the purported achievements of the DK regime and the Party line generally; |834| details of plans for the future; |835| instructions from the Party to its members; |836| and, at least in Revolutionary Youth, poetry with revolutionary themes, some of which shows a clear attempt by the CPK to incite and indoctrinate young people. |837|

266. Twenty-four different issues of the Revolutionary Flag magazine and 28 issues of Revolutionary Youth were put before the Trial Chamber during Case 002/01. |838| In the course of the trial, the NUON Chea Defence challenged the authenticity of the copies of these magazines on the Case File. |839| Witness Stephen HEDER subsequently testified as to the provenance and authenticity of copies of each publication, |840| and Witness KIM Vun was similarly able to confirm that a copy of Revolutionary Flag on the Case File was genuine. |841| The Chamber also heard evidence from Witnesses VANTHAN Dara Peou and CHHANG Youk of DC-Cam as to the circumstances in which the magazines were obtained, stored, digitised and authenticated before being placed on the Case File. |842| The Chamber also notes that in spite of his challenges to their reliability, the NUON Chea Defence has relied extensively on copies of Revolutionary Flag and Revolutionary Youth on the Case File as evidence in its closing submissions. |843| The Chamber is satisfied that the 24 copies of Revolutionary Flag and 28 copies of Revolutionary Youth on the Case File are authentic copies of the original Party magazines.

6.1.6. Monitoring of foreign news reports

267. The CPK Standing Committee ordered the DK Ministry of Propaganda to "monitor news [...] closely at all hours, every day" and send reports in order to make sure that appropriate measures could be taken. |844| Detailed procedures were established for the summarising and reporting of foreign news by the Ministry of Propaganda to the Standing Committee. |845| In accordance with the Standing Committee's directive, staff at the Ministry of Propaganda monitored foreign news broadcasts in English and French. |846| Reports from overseas news agencies and wire services were received via teleprinter, then copied and translated into Khmer for further distribution. |847|

268. Staff at the Ministry of Foreign Affairs carried out similar work, listening to foreign radio reports on DK and preparing summary bulletins for the DK/CPK leaders. |848| Witness SUONG Sikoeun, who worked at the Ministry of Foreign Affairs from 1975 and became its Director of Information and Propaganda in 1977, |849| stated that he and his colleagues were responsible for monitoring programs in French, English, Chinese and Vietnamese. |850| They were instructed to report what they heard to IENG Sary without adding or omitting anything; according to SUONG Sikoeun, IENG Sary "liked things exactly as it was and for that reason that's how it was reported to him (sic)" |851|

6.2. Lines of Communication

269. The CPK Statute set out the general principle that the "lower echelon must report to upper echelon on the situation and on work done", and the "upper echelon must report to lower echelons regarding the general situation and regarding instructions which they must carry out". |852|

270. In practice, each level in the CPK hierarchy communicated for the most part only with the levels immediately above and below it; outside the Party Centre, there was minimal lateral communication. |853| Sectors (excluding Autonomous Sectors), Districts and sub-district entities did not generally communicate with the Party Centre directly, but rather sent and received information only upwards or downwards through the chain of command. |854|

6.2.1. Within the Party Centre

271. Surviving meeting minutes indicate that the Central Committee and the Standing Committee convened regularly to discuss CPK policy. |855| In addition, the CPK senior members - including POL Pot, NUON Chea and KHIEU Samphan - met with each other in various combinations at K-1 and K-3. |856|

272. CPK leaders also corresponded by letter; for example, Witness OEUN Tan (who worked at K-1 from 1975 to 1979 |857|) remembered delivering letters back and forth between POL Pot and NUON Chea, and between POL Pot and SON Sen. |858| As previously noted, offices of the Party Centre occasionally exchanged orders, requests and information by telephone too. |859|

273. Telegrams received by the Party Centre from the lower echelons were usually taken to K-1, where they would be decoded (if necessary), sorted and redistributed as appropriate. |860| Witness OEUN Tan told the Chamber that all of the telegrams he delivered to POL Pot were subsequently delivered to NUON Chea. |861| Having reviewed the telegrams on the Case File, and having heard evidence to the effect that there were frequent meetings and consultations between NUON Chea and POL Pot and that they worked together closely, the Chamber is satisfied that most of the telegrams sent to POL Pot during the DK period were also seen by NUON Chea. |862|

6.2.2. Between the Party Centre and the Zones or Autonomous Sectors

274. Zones and Autonomous Sectors reported directly to the Party Centre. |863| At a meeting attended by several Zone and Autonomous Sector representatives in March 1976, the Standing Committee issued the following instructions concerning the applicable procedure for writing reports:

    It is proposed that a report on the status of dykes be sent to the Standing Committee every week. The report should either present a general description of the situation or, where necessary, provide details on each aspect. It is proposed that a brief report be sent by telegram to keep the Standing Committee informed of the situation and enable it to issue timely instructions. |864|

275. This followed advice handed down in a 1972 edition of Revolutionary Flag, in which the Party - noting that "we are poor at reporting" - set out guidance on the preparation of reports in order to enable "the senior levels to take hold of a situation clearly and to provide practical instructions". |865| This guidance recommended that precise and regular reports cover the topics of "the enemy", "people", "all working activities" and "resolutions and directions". |866|

276. Zones and Autonomous Sectors accordingly compiled reports for the Party Centre based on the information passed up to them from the lower echelons. |867| The reports were sent frequently, sometimes daily, although some reports summarised events over longer periods of time. |868| Reports were sent by telegraph and by letter. |869| Representatives of the Zones and Autonomous Sectors also occasionally reported to the Standing Committee in person. |870|

277. Each Zone had specific prearranged time slots during which it could transmit telegrams to the Party Centre; however, messages could also be sent outside the designated times if the circumstances justified it. |871|

278. A number of reports to the Party Centre were put before the Chamber. They showed that the Zones and Autonomous Sectors reported on issues such as production, agriculture and the rice harvest; |872| activities of purported internal and external enemies; |873| and living conditions generally, including health problems and food shortages. |874| Messages from the Zones also contained requests for instructions, guidance on the same topics or material assistance from the Party Centre. |875|

279. Telegrams from the Zones and Autonomous Sectors to the Party Centre were generally addressed to 'Committee 870' or 'Angkar', but also occasionally to 'Angkar 870' or to POL Pot himself. |876| As the Chamber has already observed, CPK cadres did not always understand the terms 'Angkar' or '870' clearly. |877| Lists of recipients on many of the telegrams indicate that copies were sent to various CPK leaders, including NUON Chea. |878| Telegrams marked as having been copied to the "office" went to Office 870. |879|

280. The Party Centre sent out general directives to the lower echelons by telegraph dealing with "all aspects of the country" and the "overall situation". |880| KHIEU Samphan sent regular telegrams regarding the distribution of materials at the base or local level. |881| As Secretary of Autonomous Sector 105, Witness SAO Sarun told the Chamber that he received instructions from the Party Centre by telegram on subjects such as farming. |882| Officials at the Zone or Autonomous Sector level also received letters from Office 870 and from individual CPK leaders, including NUON Chea and KHIEU Samphan. |883|

6.2.3. Between the Zones and the Sectors

281. Just as there were specific times for the transmission of telegrams by Zones to the Party Centre, there were separate schedules for communication between Zones and Sectors. |884| These were designed in such a way as to ensure that communications between the various echelons did not overlap. |885|

282. Witness SUON Kanil, who worked in the telegram decoding unit of the Central Zone, testified that the Central Zone authorities received telegrams from the Sectors approximately once a day, and more often after 1978. |886|

6.2.4. Between the Sectors and the Districts

283. Reports emanating from the Districts were passed upwards through the Sectors (and, if appropriate, Zones) to the Party Centre. |887|

284. Districts reported to Sectors on matters such as the construction of dams and canals, agriculture, health and "good or bad elements". |888| As the secretary of Kampong Siem District, Witness PRAK Yut prepared monthly written reports for the Sector committee on the implementation of plans and the situation within the District. |889| Similarly, Witness SAO Sarun recalled sending reports on rice farming to the Sector approximately once a week in his capacity as Pech Chenda District secretary. |890| District offices did not typically have telegraph capabilities, so written reports were sent to the Sectors by messenger. |891|

285. District and Sector officials also met in person regularly. According to Witness SAO Sarun, District secretaries reported on the situations in their Districts at meetings of the relevant Sector committee. |892|

286. Just as instructions handed down by the Party Centre to the Zones were relayed by the Zones to the Sectors, the Sector authorities in turn passed these orders on to the Districts. |893|

6.2.5. Between the Districts and the sub-district entities

287. District officials often met in person with the heads of communes or cooperatives to exchange information or communicate orders verbally. |894| Witness YUN Kim, a commune chief during the DK period, told the Chamber that commune leaders met with district authorities weekly to report on production, health, culture and "the enemy situation" in the communes. |895| If there was a pressing need to communicate between these meetings, the District sent messengers to the communes. |896|

288. Surviving documentary evidence indicates that sub-district entities also submitted written requests and reports to the Districts from time to time on issues such as arrests, suspicious behaviour and the situation in the communes and co-operatives. |897| Witness PRAK Yut testified that the district committee on which she sat received monthly written reports from the communes on the subjects of agriculture, construction projects, achievement of targets, the "wrongdoings of some people", food shortages and the number of sick people. |898| As secretary of Pech Chenda District, Witness SAO Sarun also recalled receiving monthly reports from the communes on rice production, livestock and the management of the locality generally. |899|

6.2.6. Communications with foreign countries

289. The DK state institutions sent telegrams to several foreign countries bearing greetings, expressions of solidarity and messages of congratulation on significant occasions. |900| Friendly socialist states sent similar messages in return. |901|

290. In 1976, Amnesty International sent two letters, the first in February to then-Prime Minister PENN Nouth and the second in May to the recently-appointed President of the State Presidium KHIEU Samphan, expressing concern at reports of summary executions and maltreatment of civilians and requesting that inquiries be made. |902| As no response was forthcoming, Amnesty International - joined by the UN Commission on Human Rights - renewed its appeal in 1978. |903|

291. The DK government maintained communications with other states by sending and receiving official delegations to and from foreign countries, including Laos, China, North Korea and Japan. |904| In particular, the DK regime sent and received delegations to and from Vietnam, primarily for the purpose of discussing border disputes. |905| Journalists from Yugoslavia, Turkey, North Korea, Vietnam and the United States of America also visited Cambodia during the DK period, where they interviewed state officials and visited the countryside under the escort of state or Party officials. |906|

292. The DK Ministry of Commerce communicated with foreign countries for the purposes of international trade. |907| Overseas trade delegations also visited Cambodia from time to time during the DK era. |908|

293. Between 1976 and 1979, IENG Sary attended several meetings of the UN General Assembly in New York, where he put forward the DK regime's position on the situation in Cambodia and on certain international issues. |909| As the Vietnamese approached Phnom Penh in 1979, IENG Sary sent a telegram of complaint to the UN Security Council. |910|

6.3. Military Communications

294. Lines of communication within the RAK mirrored the vertical reporting structure on the civilian side of the CPK: that is, orders were transmitted downwards from the General Staff through the divisions to the lower units; information was reported upwards through the chain of command; and individual commanders at each level usually made contact only with the levels immediately above and below them. |911|

6.3.1. Communication within the Party Centre

295. SON Sen, the chief of the General Staff, |912| attended meetings of the Standing Committee and kept the Standing Committee informed of military affairs and matters of national defence. |913| SON Sen also forwarded written messages and reports received from military commanders to other CPK leaders, including NUON Chea, with handwritten annotations and requests for instructions. |914|

6.3.2. Communication between the General Staff and the Divisions

296. Military Divisions under the command of the Party Centre reported to the General Staff as often as two or three times a day. |915| The Divisions and the General Staff communicated by radio or, if confidentiality was required, by telegraph or telephone. |916|

297. The commanders and deputy commanders of Divisions and Independent Regiments also met SON Sen in person from time to time. |917| At these meetings, the military officers updated SON Sen on the situation within their units, and SON Sen issued instructions and political guidance. |918| At least one large political study session conducted by the General Staff was attended by soldiers at the regiment, battalion, company and platoon level. |919| Military personnel also occasionally participated in large meetings or rallies in Phnom Penh, some of which were attended by CPK/DK senior leaders, including NUON Chea and KHIEU Samphan. |920|

298. Written reports put before the Trial Chamber demonstrate that the Divisions regularly sent information to the General Staff on enemy activities; agriculture and the growing of rice; internal enemies and subversive activities within the units; and the progress of construction projects. |921| Divisions also contacted the General Staff to seek orders. |922|

6.3.3. Communication within the Divisions

299. Having received orders from the General Staff, Division commanders would relay these instructions to the lower units, often by meeting their officers or leaders in person. |923| In turn, these orders would be passed down through the regiments and battalions. |924|

300. The commanders and deputy commanders of Divisions and subordinate levels communicated with each other by radio, by telegraph, by messenger and in person. |925|

301. Company commanders reported to their superiors in writing and by radio. |926| Battalion commanders submitted written reports to regiment commanders, which were delivered by messenger. |927| The regiments in turn sent written reports to the Division by telegraph and by messenger on at least a monthly basis. |928|

6.3.4. Communication between Divisions

302. Some degree of lateral communication between Divisions took place, at least at the regimental level, for the purpose of co-ordinating tasks. |929|

7. ROLES AND FUNCTIONS - NUON CHEA

303. According to the Closing Order, before and during the DK period, NUON Chea was a prominent member of the Party Centre, his responsibilities including propaganda, training and discipline of cadres as well as internal and external security-related matters. |930|

304. At the beginning of the substantive hearing, NUON Chea made an opening statement. |931| For a period thereafter, he agreed to answer questions from the Judges and the Parties, and made several statements relevant to his roles and functions with the CPK and during the DK period. |932| As further noted below, NUON Chea confirmed his long and close association with the Party, including his role as Deputy Secretary and his membership in its Central and Standing Committees. While denying any formal role in military policy, NUON Chea confirmed other roles and functions during the DK period, including his appointment as Chairman of the PRA and his responsibilities in connection with the training of cadres and with propaganda. NUON Chea later decided to exercise his right to remain silent and declined to respond to questions from the Judges and the Parties. |933| On the last day of the trial, NUON Chea made a final statement before the Chamber. |934|

7.1. Background Information and Pre-DK Period

305. NUON Chea, whose birth name is LAO Kim Lorn, was born on 7 July 1926, in Voat Kor Village, Sangkae District, Battambang Province. |935| NUON Chea studied initially in Battambang, continuing his secondary education in Thailand in 1941, and then at the Thammasat University in Bangkok where he started to study law under the name of Runglert Laodi. During part of that period, he also worked in the Thai Ministry of Finance and in the Thai Ministry of Foreign Affairs. |936| While in Thailand, NUON Chea joined the Youth for Democracy movement of Thailand and participated in discussions about the situation in Cambodia. In 1950, he joined the Communist Party of Thailand, later returning to Cambodia to join the resistance movement. |937|

306. NUON Chea joined the then Indochina Communist Party, |938| giving as his reasons his concern at the treatment of Cambodian peasants by French colonial officials and rich Cambodian landowners. |939| From about 1950, NUON Chea's activism intensified as he engaged in propaganda and education activities, which included publishing newspapers and conducting training sessions for peasants in the rural areas. |940|

307. Around 1951-54, NUON Chea was sent by the Party to study and receive political training in Vietnam. After the Geneva Accords he returned to Cambodia, and claimed that Party members were being arrested, imprisoned or had left the movement, and that peasants' farming activities were being obstructed by the harsh policies of the government. |941| Before settling in Phnom Penh in 1955, NUON Chea moved among different locations in the countryside, such as in Boeng Lvea, along the Stung Chinit River, and in Samlaut, to disguise his active involvement in the revolutionary movement, and ensure his personal security. |942|

308. In Phnom Penh, NUON Chea continued his underground work for the revolutionary movement as a member of the Party city committee, |943| while working variously as a teacher, a vendor, or a clerk for an import-export company. After POL Pot returned from France in 1955-56, NUON Chea was introduced to him. POL Pot and NUON Chea who were both members of the Khmer People's Revolutionary Party, initially worked together as assistants to TOU Samuth. |944| Later, in 1960, NUON Chea met IENG Sary at the First Party Congress, during which TOU Samuth and NUON Chea were respectively nominated Secretary and Deputy Secretary and the Party was renamed the Workers' Party of Kampuchea. |945|

309. In 1963, IENG Sary and POL Pot, both listed as "leftists", were summoned together with other individuals by NORODOM Sihanouk under the pretext of forming a new government. Fearing arrest they joined the underground near the Vietnamese border. |946| According to NUON Chea, he met with KHIEU Samphan for the first time near the Aoral Mountain, after Khieu Samphan went to the maquis, but he does not remember when. |947| From the early 1960s Nuon Chea's political affiliation remained secret. |948| From 1963, NUON Chea travelled to the countryside to meet other leaders of the movement, including POL Pot, IENG Sary and SON Sen. He also met VORN Vet, KE Pauk, SAO Phim, KOY Thuon, ROS Nhim, as the revolution progressed. |949| On occasion, NUON Chea travelled clandestinely from Phnom Penh to the main Party offices, including Office 100, sited initially on the border area with Vietnam. From 1966-67, he travelled to the new Office 100 location in Ratanakiri and, from 1970, to Office S-71, located along the Stung Chinit River. Later, as the Khmer Rouge closed in on Phnom Penh he also visited B-5 |950| and different provinces and zones controlled by the Khmer Rouge. |951|

310. In 1970, when NORODOM Sihanouk was overthrown, NUON Chea was visiting the East Zone and only managed to return to Phnom Penh after a few months. Once there, he continued to travel to meet POL Pot and IENG Sary to brief them on the situation in Phnom Penh and to receive instructions from POL Pot. |952| As the revolution developed further, however, NUON Chea finally left Phnom Penh and joined the other senior leaders of the Party at S-71. |953|

311. In the early years of his political activism in Cambodia, NUON Chea's main areas of responsibility within the Party included working on the formulation of the Party policies and strategic and tactical lines, together with POL Pot. |954| NUON Chea also continued to focus on propaganda, by travelling to and from the countryside to gather cadres and conduct training sessions with peasants and local leaders of the movement. |955| He was also instrumental in issuing the Revolutionary Flag. |956| At trial, NUON Chea made inconsistent statements concerning his participation in the publication of the Revolutionary Flag, denying any involvement in its initial establishment. |957| His denial is unconvincing, however, in view of his earlier involvement in the publication of several Party-related newspapers, and his later description of the publication of the Revolutionary Flag. |958| Finally, while NUON Chea worked on developing the Party policy of full independence from the Communist Party of Vietnam he also gradually assumed the role of liaison with that party, travelling to Vietnam on various occasions to meet with its leaders. |959|

312. Throughout the CPK period, NUON Chea was referred to by his surname as "Brother [bang] Nuon," "Uncle [om] Nuon" or "Grand Uncle [om] Nuon" as well as "Comrade Deputy Secretary", or, more generally, "Brother [bang]", "Respected Brother" or "Beloved Brother". |960| While he denied having used or being commonly referred to as "Brother No. 2", |961| several witnesses confirmed that this alias was also used to refer to NUON Chea. |962| These aliases are also referred to in several telegrams and reports relevant to the activities of the Party Centre |963| as well as in annotations made by cadres on S-21 confessions, including by Witness KAING Guek Eav, addressed or copied to NUON Chea. |964| Witness SUON Kanil, in particular, a radio operator from the Central Zone who dealt with telegrams relevant to the Party Centre, indicated that the reference to "Uncle Nuon" on telegrams addressed to Office 870 "of course" refers to NUON Chea. |965| During a Standing Committee Meeting held on 1 June 1976, POL Pot, identified as the Chairman of the Committee, referred to NUON Chea simply as "[comrade] NUON". |966|

7.2. Status and Role within the Party

313. NUON Chea testified that, since the First Party Congress in 1960, he was the Deputy Secretary of the Party. |967| NUON Chea retained this appointment during subsequent Party congresses as well as throughout the DK period. |968| After TOU Samuth's disappearance, POL Pot was appointed as Secretary of the Party in 1963. On several occasions, NUON Chea indicated that there were suspicions against him because of the earlier defection to the LON Nol regime of his uncle by marriage, SIEU Heng, who was a leader of the Khmer People's Revolutionary Party responsible for the party's rural membership. Therefore, NUON Chea supported the election of POL Pot as Secretary of the party while he would remain the Deputy Secretary. |969| However, he agreed with POL Pot that they would work together. |970|

314. Expert David CHANDLER, Witnesses SUONG Sikoeun and KAING Guek Eav, among others, |971| as well as KHIEU Samphan, |972| confirmed that NUON Chea held this position.

315. NUON Chea also confirmed having been a full rights member of both the CPK Central Committee and its Standing Committee. |973| His membership in these organs was confirmed by witnesses and experts who testified at trial. |974|

316. The fact that these appointments occurred is reflected in contemporary DK documents. Numerous CPK Standing Committee meeting minutes from the DK period indicate NUON Chea was present in his capacity as the Deputy Secretary of the Party. |975| From late 1977, NUON Chea was also officially identified as the Deputy Secretary of the CPK Central Committee in speeches he gave to foreign dignitaries and delegations and in DK media reports concerning international travel and meetings. |976|

7.3. Residence, Working and Travel Locations During the DK Period

317. Upon returning to Phnom Penh after 17 April 1975, NUON Chea eventually took up his permanent residence at K-3, where he lived and worked with other CPK leaders, including POL Pot, IENG Sary, SON Sen, VORN Vet and KHIEU Samphan. From K-3, NUON Chea frequently travelled to K-1, POL Pot's residence located on the riverside, where important meetings of the Party Centre would also be held. |977| During the DK period, NUON Chea continued to travel to the countryside, visiting construction and agricultural projects, meeting with zone leaders and holding education and propaganda meetings. |978| On at least one occasion, NUON Chea travelled to China and North Korea on an official visit. |979|

7.4. Roles During the DK Period

318. In addition to his roles within the Party, NUON Chea occupied other official roles during the DK period. According to the Closing Order, NUON Chea was the Chairman of the Standing Committee of the PRA and, in September 1976, he was formally appointed Acting Prime Minister of DK, after POL Pot took a period of temporary leave allegedly due to some medical issues. |980|

7.4.1. Chairman of the People's Representative Assembly

319. NUON Chea confirmed his role as the Chairman of the PRA during the DK period. |981| He was appointed Chairman of the Standing Committee of the PRA, a title which he retained after the fall of DK, |982| following a decision of the CPK Central Committee on 30 March 1976. |983| Other contemporary DK documents, including various speeches he gave in that capacity to foreign dignitaries and delegations, identify NUON Chea as the Chairman the Assembly's Standing Committee. |984|

320. NUON Chea stated that this was one of the main roles he exercised during the DK period, leaving him in charge of ensuring that laws were adopted, although the conflict with Vietnam made this process difficult. |985| NUON Chea did not however assert that the PRA whose responsibility it was to debate legislation, was more than a facade indicating compliance with the Party Statute, as discussed in a Standing Committee Meeting held in March 1976 and attended by him. |986| The Assembly met rarely, possibly only once during the DK period and did not pass any laws. |987|

7.4.2. Acting Prime Minister

321. NUON Chea denied having ever been appointed as Acting Prime Minister of DK. Although recognising that POL Pot took a period of leave of absence, in 1976, he indicated that SON Sen was the person appointed to substitute for POL Pot. |988|

322. Other evidence before the Chamber contradicts this testimony. Several documents report the official appointment of NUON Chea as Acting Prime Minister of DK in September 1976 pending and during POL Pot's absence. |989| Other contemporary DK documents up to late 1977, including national and international news reports of meetings at the diplomatic level, confirm this appointment. |990| These documents are corroborated by Witness KAING Guek Eav who heard a radio message announcing POL Pot's leave and NUON Chea's temporary appointment to the role of acting Prime Minister. |991| Furthermore, in his interview with Stephen HEDER in 1996, IENG Sary stated that NUON Chea replaced POL Pot as DK Prime Minister in 1976. |992| In addition, there is evidence that, in his capacity as Acting Prime Minister, NUON Chea delivered a speech on the occasion of the 9th Anniversary of the RAK, on January 1977. |993|

323. The Chamber is therefore satisfied that from September 1976 on several occasions NUON Chea officially exercised the role of Acting Prime Minister of DK, up until 1977 when POL Pot resumed his duties. |994|

7.5. Roles in Propaganda and other related Matters

324. In several instances before the Chamber, NUON Chea reiterated that, within the Party Centre and throughout its existence, he had primary responsibility for propaganda-related matters as well as for education of peasants, cadres and other Party members, focusing in particular on the main principles and the economic policies of the Party. |995|

325. Several witnesses testified that they attended meetings, training or study sessions at which NUON Chea appeared as the chairman, trainer or speaker. These events were held before and during the DK period at the sector, district, zone or centre levels throughout the country and in Phnom Penh, particularly at the Olympic Stadium and at Borei Keila. |996| During the events, revolutionary policies were discussed, including economic policies and cooperatives; the mobilisation of the forces through the liberated zones; self-reliance and mastery as well as vigilance against internal and external enemies; and self-criticism sessions. |997| NUON Chea was also among the recipients of several telegrams from Party cadres in different areas of Cambodia. These telegrams provided situation reports on various matters, including not only the progress in the implementation of the agricultural policies and the training of cadres, but also discipline and punishment of individuals. |998|

326. On 9 October 1975, during a Standing Committee meeting, NUON Chea was entrusted with responsibility for "Party Affairs, Social Action, Culture, Propaganda and Education". |999| NUON Chea attended CPK Standing Committee meetings at which propaganda and education matters were discussed. |1000| During a meeting held on 1 June 1976 to discuss progress in propaganda-related matters, NUON Chea, identified as the Deputy Secretary of the Standing Committee, made several remarks about the performance of the Ministry of Propaganda and Information, identifying progress but also highlighting areas where improvement was needed. In particular, NUON Chea raised concerns about having "intellectuals" working as authors in the Ministry and stated that individuals from the base should be recruited. |1001|

327. Witness KHIEV En, a technician working in the Ministry of Propaganda and Information, confirmed that NUON Chea visited the Ministry and took over the responsibility for the Ministry from YUN Yat in mid-1978. |1002|

328. According to the Closing Order, as part of his responsibility for Party affairs, propaganda and education, NUON Chea was in charge of the Organisation Committee of the Party, responsible for organisational matters including monitoring of Party members and their induction in offices and ministries. |1003| While there is no direct evidence of any formal appointment to this role, Witness SALOTH Ban, POL Pot's nephew who worked at the Ministry of Foreign Affairs and had particular knowledge of the roles of POL Pot and NUON Chea and their relationship, testified that NUON Chea was in charge of the appointment and discipline of Party members. |1004| This role was confirmed by Witness NORNG Sophang, a CPK telegram operator who worked in several offices, who stated that telegrams regarding the internal security situation and the violation of the Party moral code by cadres were directed to NUON Chea. |1005| With regard to the responsibility for "Party Affairs, Social Action, Culture, Propaganda and Education" conveyed upon NUON Chea on 9 October 1975 by a delegation of the CPK Standing Committee, discussed above, KAING Guek Eav indicated that "Party Affairs" referred to the recruitment of new members as well as the monitoring and imposition of disciplinary actions on Party members. |1006|

329. The Chamber accordingly finds that NUON Chea's formal responsibility for propaganda and education-related matters also extended to the discipline of cadres and other internal security matters.

7.6. Role in the Military and Security Apparatus

330. NUON Chea denied having ever had any role or responsibility in matters concerning security, including military affairs and internal security, during DK or throughout the CPK period. |1007| In contrast to this testimony, the Chamber considered a great deal of evidence demonstrating that NUON Chea was involved in military and security matters both prior to and during the DK period.

7.6.1. Membership of the CPK Military Committee

331. According to the Closing Order, during the period of Democratic Kampuchea NUON Chea was a member of the Military Committee of the CPK Central Committee and was responsible for security and military affairs. |1008| NUON Chea confirmed the existence of the Military Committee, but consistently denied being a member of it. |1009|

332. While in the KAING Guek Eav Trial Judgement, this Chamber found that NUON Chea was a member of the Military Committee, |1010| the evidence on this point in the instant trial was conflicting. In an interview with Stephen HEDER, IENG Sary indicated that the Military Committee existed and that NUON Chea was part of it, together with POL Pot and SON Sen, among others. |1011| At trial Witness SUONG Sikoeun clarified previous statements made before the Co-Investigating Judges and indicated that he heard of NUON Chea being a member of the Military Committee only after 1979, from articles and books he read and that he did not know personally whether NUON Chea was a member of the Military Committee of the Central Committee during the DK period. |1012| Expert Philip SHORT does not believe that NUON Chea was a member of the Military Committee, although he stated that through his political leadership within the Party, NUON Chea exercised control over the military. |1013| Similarly, discussing NUON Chea's role vis à vis that of the Military Committee, Expert David CHANDLER believes that, due to his position within the Party, NUON Chea exercised a prominent role in the Party policy and decisionmaking process, including those matters relevant to military affairs. |1014|

333. In light of the Accused's denial that he was a member of the CPK Military Committee and the inconsistencies of evidence presented at trial, the Chamber cannot conclude beyond reasonable doubt that NUON Chea was a member of the Military Committee during the DK period.

7.6.2. Involvement in Other Military and Security Related Matters

334. NUON Chea was closely involved in the decision to include revolutionary violence in the Party policies and ultimately, in 1968, to initiate the armed struggle. |1015| There is also evidence that, during the GRUNK period, NUON Chea was appointed as the Vice-President of the High Military Command of the People's Armed Forces for the Liberation of Kampuchea and the Chief of the Army Political Directorate, although appointments made in this context do not necessarily reflect actual authority. |1016|

335. NUON Chea was also involved in the procurement of arms and ammunitions for use by the movement, particularly from China, via Vietnam. |1017| In 1973, NUON Chea was also entrusted by POL Pot with the responsibility to provide security for the visit of NORODOM Sihanouk to the liberated areas in Cambodia. |1018| Finally, NUON Chea also confirmed having participated in the planning and decision-making regarding the final attack on Phnom Penh, participating in several meetings during which the military advance of the CPNLAF and the plans for the liberation of the capital in 1975 and moving to the forward command base of B-5 for the final assault of Phnom Penh were devised. |1019|

336. During the DK period, NUON Chea's involvement in external security matters primarily involved the escalating violence between Cambodia and Vietnam. In a meeting of the Standing Committee in March 1976, during which POL Pot was absent, NUON Chea made several comments and provided instructions concerning the border situation with Vietnam, indicating that both political and diplomatic measures were required, as well as military force. |1020| NUON Chea was also present and made comments in other Standing Committee meetings during which the border situation with Vietnam was discussed. |1021|

337. Numerous surviving telegrams concerning the situation on the battlefields as well as on the border with Vietnam were copied to NUON Chea. |1022| There is also evidence that, in certain instances, NUON Chea provided comments and instructions on these matters. |1023|

338. NUON Chea was also involved in matters relating to the activities of the military other than the conflict in Vietnam. He was present during a Standing Committee meeting held in May 1976, at which the construction of a covert weapons factory and an airfield were discussed, as well as at a prior meeting in February 1976, at which several matters of national defence were debated. |1024| NUON Chea was present during another Standing Committee meeting held in May 1976, discussing the tasks of the army in defending and building the country, and its involvement in agricultural production. |1025| Finally, in addition to the telegrams concerning the battlefields and Vietnam, referred to above, NUON Chea was also the recipient of other telegrams concerning activities of the military, particularly Division 164 of the RAK. |1026|

339. The Special Issue of the Revolutionary Flag of December 1976-January 1977 reproduces a commemorative speech given on the occasion of the 9th anniversary of the RAK in Cambodia. |1027| At trial, NUON Chea denied giving the speech and stated that SON Sen was the one who delivered it. |1028| Contemporaneous news reports, however, reproduce excerpts of the same speech and uniformly indicate that it was NUON Chea who delivered the speech on 16 January 1977 in his capacity as Acting DK Prime Minister. |1029|

340. NUON Chea was also involved in the purges of cadres and military, particularly from the East Zone. In 1978, he participated in a meeting with other Party leaders, including POL Pot, SON Sen and Ta Mok, as well as several military commanders, during which members of the East Zone, particularly SAO Phim, were declared internal enemies of the Party to be purged. During the meeting, NUON Chea spoke of the arrest of several members of the East Zone. |1030|

341. Actual membership of the Military Committee was of little significance due to NUON Chea's very senior positions within the Party. The Chamber finds that NUON Chea received detailed information about and had considerable influence on DK military policy and its implementation.

7.6.3. Supervision of S-21 Security Office

342. NUON Chea denied any involvement with the operation of S-21, subsequently availing himself of his right to remain silent when asked questions on this topic. |1031|

343. Witness KAING Guek Eav, who chaired the S-21 Security Office from 1976 to 1979, discussed at length NUON Chea's role in connection with internal security matters, particularly the operation of S-21. KAING Guek Eav regularly reported to NUON Chea about his activities at S-21 and NUON Chea often provided him instructions with regard to confessions and the treatment of the detainees. |1032| More particularly, NUON Chea requested that KAING Guek Eav have the names of certain Party members removed from confessions accusing them of betraying the Party, including references to KHIEU Samphan. |1033| KAING Guek Eav testified that NUON Chea's involvement with the operation of S-21 intensified significantly in August 1977, after SON Sen was transferred to the border with Vietnam as the conflict with Cambodia escalated. |1034| A number of S-21 confessions placed on the case file contain annotations indicating that these were forwarded to NUON Chea. |1035| Witness SAUT Toeung, NUON Chea's bodyguard and driver, also confirmed having delivered several documents from KAING Guek Eav to NUON Chea and vice versa. |1036| In a video-recorded interview after the DK period, NUON Chea confirmed to a journalist that he received confessions and used some of them to draw lessons to educate cadres against the enemy but also stated that the there were "so many" confessions that he did not have time to read all of them. |1037|

344. The Co-Prosecutors also submit that KAING Guek Eav identified annotations made on S-21 confessions and other related documents as belonging to NUON Chea. |1038| Given KAING Guek Eav's limited familiarity with NUON Chea's handwriting, there is some question whether the annotations were made by NUON Chea. |1039|

345. Several foreigners were also imprisoned in S-21. Among these were Vietnamese soldiers, whose arrest and imprisonment at S-21 was communicated to the Party Centre, including NUON Chea. |1040| KAING Guek Eav testified that prior to the fall of DK, NUON Chea ordered him to 'smash' (that is, to execute) |1041| all remaining S-21 inmates. At that time, there were about 500 detainees still being held at S-21. |1042|

346. The Chamber recalls that the allegations concerning NUON Chea's responsibility in connection with the operation of S-21 Security Office were severed from Case 002/01 and will be considered in future proceedings. Accordingly, the Trial Chamber will make no findings in this regard in this Judgement.

7.7. Conclusions

347. While it remains unclear whether he was a member of the Military Committee of the CPK, NUON Chea's involvement in military and security matters was intrinsically linked with his long standing authority within the Party. NUON Chea actively participated in the operations of the RAK, particularly concerning the war against Vietnam, and he received regular reports and gave instructions with regards to security matters either directly or through decisions of the Party. NUON Chea's role in connection with propaganda and education also extended to and encompassed Party discipline and internal security matters, as well as more generally the enemy situation, advocating for the uncovering of enemies and their elimination.

348. Due to his seniority within the leadership of the CPK, NUON Chea enjoyed oversight of all Party activities extending beyond the roles and responsibilities formally entrusted to him during the DK period. The Trial Chamber agrees with the views of Experts David CHANDLER and Philip SHORT that, within the Standing Committee NUON Chea with POL Pot, exercised the ultimate decision-making power of the Party. As Deputy Secretary of the Party, his control extended not only to political decisions, but also to the government and the administration of DK and to military matters. |1043| For these reasons, the Chamber finds that NUON Chea held and exercised the power to make and implement CPK policies and decisions.

8. ROLES AND FUNCTIONS - KHIEU SAMPHAN

349. According to the Closing Order, KHIEU Samphan was a prominent member of the Party Centre whose responsibilities included roles in Office 870, GRUNK, the DK State Presidium and the Ministry of Commerce. |1044|

350. Upon the commencement of the substantive hearing, KHIEU Samphan made an opening statement. |1045| He subsequently answered questions as to his identity and personal background, and commented on certain paragraphs of the Closing Order by reading from a prepared statement. |1046| He also responded briefly to questions from the Chamber about specific documents on the Case File. |1047| Thereafter, KHIEU Samphan decided to exercise his right to remain silent and declined to respond to questions, indicating that he would do so after the presentation of all the evidence by the Co-Prosecutors. |1048| In May and June 2013 he answered a number of questions put to him by Civil Parties. |1049| Shortly afterwards he informed the Chamber that he was again exercising his right to remain silent. |1050| On 31 October 2013 KHIEU Samphan gave his final statement before the Chamber. |1051|

8.1. Background Information and Pre-DK Period

8.1.1. Early life and career

351. KHIEU Samphan alias "Haem", "Hem" or "Nan" was born on 27 July 1931 in Chek or Rumchek Commune, Rumduol District, Svay Rieng Province. |1052| He attended primary school in Kampong Cham Province, and went on to attend the Preah Sihanouk secondary or junior high school, also in Kampong Cham, where he first met POL Pot (then known as SALOTH Sar). |1053| After graduating from Preah Sihanouk School, KHIEU Samphan moved to Phnom Penh to attend the Lycee Sisowath. |1054| Following his graduation from the Lycee Sisowath in 1951, he began to study law in Phnom Penh. |1055| In 1953, having been awarded a scholarship by the Cambodian government, he travelled to France to study law and economics. |1056|

352. A few months after his arrival in Paris, KHIEU Samphan joined the 'Marxist Circle' founded and regularly attended by other Khmer students in France including IENG Sary, SALOTH Sar, IENG Thirith and SON Sen. |1057| Shortly afterwards, KHIEU Samphan left Paris for Montpellier, where he studied law and took classes in economics. |1058| He continued to participate in the activities of the Marxist Circle, joining the other members of the Circle for an excursion during one of the summer vacations. |1059|

353. In 1956, KHIEU Samphan returned to Paris to pursue a doctorate in economics. |1060| He began to attend regular meetings of the Marxist Circle and, upon the departure of IENG Sary, became its leader. |1061| Like other members of the Circle, KHIEU Samphan joined the French Communist Party. |1062| He also assumed the leadership of the Union of Khmer Students ('Union des Etudiants Khmers' or 'UEK'), |1063| which had been founded by "the progressive students" (as Witness SUONG Sikoeun, a former UEK member, described them) under the influence of the French Communist Party. |1064|

354. In 1959 KHIEU Samphan presented his doctoral thesis entitled 'L'Economie du Cambodge et ses Problemes d'Industrialisation' ('The Economy of Cambodia and its Problems of Industrialisation') at the University of Paris. |1065| In his thesis, KHIEU Samphan characterised the Cambodian economy as "backward" and underdeveloped, partly as a result of "international integration", and proposed fundamental structural reforms (such as a state monopoly on foreign trade, the reduction of land rents, and a new agrarian credit system) aimed at fostering a more self-sufficient nation. |1066| He wrote that it was necessary to drive "landlords, retailers and usurers" away from their "unproductive activities" and "encourage them to participate in production", and to "transfer capital from the hyperactive commercial sector into more directly productive sectors". |1067| He also suggested that "methodical organisation of the peasant force, into mutual teams and then into cooperatives, will magnify its effectiveness ten times over and make possible the clearing of new land, its irrigation, and its draining". |1068|

355. However, the dissertation emphasised the importance of industrialisation and technology for Cambodia's economic development, and did not advocate the abolition of currency or private property. |1069| The Chamber agrees with Expert Philip SHORT that, while in some respects the ideas expressed in KHIEU Samphan's thesis prefigured aspects of CPK ideology, it was not a "blueprint" for the policies that were ultimately enacted during the DK period. |1070|

356. Not long after his return to Cambodia, KHIEU Samphan founded a French-language newspaper called 'L'Observateur'. |1071| KHIEU Samphan denied that the newspaper was communist, but at times it was subtly critical of NORODOM Sihanouk's then government, and some of its major financial backers (including IENG Thirith) were certainly aligned with the burgeoning communist movement in Cambodia. |1072| As a result, KHIEU Samphan was monitored and repeatedly harassed by the authorities, in one instance being assaulted in the street outside his office by a group of men who were probably agents of the secret police. |1073| In 1960, KHIEU Samphan was arrested and detained without charge for over a month and 'L'Observateur' was closed down. |1074|

357. After the closure of 'L'Observateur', KHIEU Samphan joined 'Sangkum Reastr Niyum', the political party founded by NORODOM Sihanouk. |1075| In 1962 he was elected to the National Assembly, having been personally endorsed by the NORODOM, and appointed Secretary of State for Commerce. |1076| KHIEU Samphan suggested that this endorsement and appointment was an attempt by NORODOM Sihanouk to win him over to the government's side and, more generally, to gain favour with communist states. |1077| To some extent, NORODOM may also have wished to make use of KHIEU Samphan's academic training in economics. |1078| In his new role, KHIEU Samphan began to implement economic reforms. |1079|

358. In March 1963, following student demonstrations in Siem Reap, NORODOM Sihanouk - who blamed the riots on communists - broadcast a list of 34 known or suspected 'leftists' (including KHIEU Samphan, POL Pot and IENG Sary), who were condemned as "traitors". |1080| KHIEU Samphan nevertheless kept his cabinet post until he was forced to resign in mid-1963. |1081|

359. KHIEU Samphan retained his parliamentary seat upon his resignation from the cabinet, and was re-elected to the National Assembly for a second term in 1966. |1082|

360. As a newspaper editor and parliamentarian, KHIEU Samphan was widely reputed to be a man of probity and honour: he was generally perceived to be conscientious, incorruptible and principled, and to lead a relatively modest lifestyle. |1083|

8.1.2. Party membership

361. In April 1967, NORODOM Sihanouk publicly accused KHIEU Samphan and two of his left-wing colleagues in the National Assembly, HU Nim and HOU Youn, of fomenting a peasant uprising in the village of Samlaut, Battambang Province, and threatened to bring them before a military tribunal. |1084| Fearing for their safety, the three men fled Phnom Penh and, at the invitation of the CPK, took refuge in the countryside near Ang Tasom, Takeo Province, under the protection of Ta Mok. |1085|

362. Between 1967 and 1970, KHIEU Samphan moved from village to village in and around Kampong Speu, Kampong Chhnang and Takeo, aided by a clandestine CPK network. |1086| In 1969, he spent time with Ta Mok at the latter's headquarters near Aoral Mountain, Kampong Speu. |1087| Although IENG Sary and NUON Chea suggested that KHIEU Samphan was already a member of the CPK at this time, |1088| their evidence was not consistent and did not give the Chamber sufficient reason to doubt KHIEU Samphan's testimony that he formally joined the CPK in 1969. |1089| However, the Chamber is satisfied the KHIEU Samphan was in informal contact with senior CPK members from a much earlier date: in particular, he was "in close touch" with the Phnom Penh City Committee - an organisation that would gradually evolve to become the CPK Central Committee - by the early 1960s. |1090|

363. By his own admission, KHIEU Samphan became a candidate member of the CPK Central Committee in 1971 and a full-rights member in 1976. |1091| His membership of the Central Committee was confirmed by witnesses and experts who testified at trial. |1092|

8.1.3. 1970-1975

364. In March 1970, following the overthrow of his government by LON Nol, NORODOM Sihanouk announced the formation of the FUNK. |1093| POL Pot sent the NORODOM a message of support in the names of KHIEU Samphan, HU Nim and HOU Youn. |1094| At some point between March and September 1970, KHIEU Samphan, HU Nim and HOU Youn moved from Ta Mok's Aoral Mountain base to the CPK senior leaders' headquarters at S-71 near the Stung Chinit River. |1095| KHIEU Samphan has alleged that it was at S-71 that he first met NUON Chea and POL Pot. |1096| However, NUON Chea claimed that he met KHIEU Samphan while the latter was still at Mount Aural, and (although he may not have known POL Pot's true identity until 1970) KHIEU Samphan was acquainted with POL Pot from their school days in Kampong Cham. |1097|

365. In 1970, KHIEU Samphan was named Deputy Chairman of FUNK and Commander-in-Chief of CPNLAF. |1098| In reality, KHIEU Samphan held no direct military authority, and it was POL Pot who was in charge of the CPNLAF forces. |1099| KHIEU Samphan also assumed the posts of Deputy Prime Minister and Minister of National Defence in GRUNK. |1100| Although he told the Chamber that these titles were meaningless, KHIEU Samphan has admitted that he played "an important, if not an indispensable" role as a liaison between the CPK and NORODOM Sihanouk. |1101| HU Nim and HOU Youn were also named as GRUNK ministers; |1102| with KHIEU Samphan, they became the public face of the opposition movement in the early 1970s. |1103| Together, they were known as the 'three ghosts' - a reference to rumours of their deaths which had circulated during their time in hiding. |1104|

366. From 1970 to 1975, KHIEU Samphan stayed in close proximity to POL Pot and NUON Chea, and the three of them frequently met, worked together and ate together. |1105|

367. In the early 1970s, KHIEU Samphan assisted with the preparation of FUNK propaganda materials and helped to conduct political training sessions. |1106| Between 1970 and 1975, the FUNK radio station broadcast appeals by KHIEU Samphan (sometimes made jointly with HU Nim and HOU Youn) exhorting the population to join or support the resistance movement against the LON Nol regime. |1107| One such appeal in January 1975 called on people to "overthrow and annilihate" and "turn [their] guns against" the "traitorous" LON Nol clique. |1108| Other speeches delivered by KHIEU Samphan demonstrated that he had knowledge of CPNLAF military operations. |1109|

368. KHIEU Samphan accompanied POL Pot and NUON Chea on tours of the countryside and CPK 'liberated' areas in 1971 and 1972. |1110| In 1973 he received NORODOM Sihanouk upon the latter's visit to Cambodia. |1111| The following year, he received a visiting delegation from the People's Revolutionary Government of the Republic of South Vietnam. |1112| With IENG Sary, KHIEU Samphan also led delegations on trips abroad, seeking support for the FUNK and recognition of the GRUNK. |1113|

369. In late 1972 or early 1973, KHIEU Samphan married SO Socheat, a cook at S-71. |1114| Their first child was born in 1974. |1115|

370. In February 1975, a FUNK press release announced that a FUNK "National Congress", purportedly held on 24 and 25 February and chaired by KHIEU Samphan, had decided that the "seven traitors" of the LON Nol regime had to be killed. |1116| Although the evidence before the Chamber did not establish conclusively that such a meeting ever actually took place, KHIEU Samphan referred to the 1975 Congress and the decisions allegedly reached there in a speech he delivered the following year. |1117|

371. Shortly before the fall of Phnom Penh, KHIEU Samphan relocated to B-5 to "follow the last offensive against the capital more closely". |1118| As the CPK/FUNK/CPNLAF forces closed in on Phnom Penh, KHIEU Samphan continued to appeal to people to rise up against the LON Nol regime. |1119|

372. The Chamber is satisfied that KHIEU Samphan, who was highly-respected by the population, played an important role in winning support for the opposition movement between 1970 and 1975. His acceptance of key posts in FUNK, his role in reassuring the public about CPK's plans, his performance of diplomatic duties in his capacity as GRUNK Deputy Prime Minister, his role in liaising with NORODOM Sihanouk, his work in preparing and disseminating propaganda material and his calls for violent struggle against the LON Nol regime in publicly-broadcast speeches all served to bolster and give legitimacy to the CPK-dominated resistance movement. |1120|

8.2. Residence, Working and Travel Locations During the DK Period

373. In 1975, after his return to Phnom Penh, KHIEU Samphan stayed briefly with other CPK leaders at the city's railway station, before moving to the former Ministry of Finance building for approximately two weeks, and then the Silver Pagoda at the Royal Palace for a short time. |1121| He then spent several months living and working at K-1, |1122| before moving to K-3, again accompanied by some of the other senior CPK leaders. |1123| While living at K-3, he frequently visited K-1, where POL Pot continued to reside. |1124| Witness SO Socheat claimed that POL Pot, NUON Chea, IENG Sary, SON Sen and VORN Vet also lived at K-3, but after staying there for four or five months they all left. |1125| However, other witnesses who recalled seeing KHIEU Samphan living with the senior leaders at K-3 made no mention of this purported departure, and the Chamber did not find the testimony of Witness SO Socheat, KHIEU Samphan's wife, to be convincing. |1126| Moreover, in an interview given in 2007, KHIEU Samphan himself stated that he was "always living in close quarters with the Cambodian leaders". |1127|

374. KHIEU Samphan travelled to China and North Korea on an official visit in 1975, the purpose of which was (at least partly) to discuss the terms of NORODOM Sihanouk's return to Phnom Penh. |1128| In 1976, KHIEU Samphan represented DK at a summit of the Non-Aligned Countries in Sri Lanka. |1129| He also travelled into the Cambodian countryside to visit worksites during the DK era. |1130|

8.3. Roles During the DK Period

375. KHIEU Samphan occupied a number of official posts during the DK period. According to the Closing Order, he served as President of the State Presidium, was a leading member of Office 870, had responsibility for commerce, and (in the GRUNK period) held the titles of Deputy Prime Minister, Minister of National Defence and CPNLAF Commander-in-Chief. |1131| The Closing Order also alleges that KHIEU Samphan was a member of the CPK Central Committee and attended and participated in numerous meetings of the Standing Committee. |1132|

8.3.1. Deputy Prime Minister, Minister of National Defence and Commander-in-Chief

376. After the fall of Phnom Penh in April 1975, NORODOM Sihanouk's GRUNK formally took power in Cambodia, though Sihanouk himself did not return to the country until September 1975. |1133| KHIEU Samphan retained his roles as Deputy Prime Minister, Minister of National Defence and CPNLAF Commander-in-Chief, |1134| and as such continued to exercise certain diplomatic functions, such as meeting visiting delegations from foreign countries and leading Cambodian delegations on trips abroad. |1135| He continued to make public statements supporting the CPNLAF and the new regime; denouncing the previous LON Nol government; and encouraging all Cambodians to work hard to rebuild the country. |1136|

377. Public radio reports claimed that KHIEU Samphan also chaired a "Special National Congress" from 25 to 27 April 1975; like the purported FUNK Congress in February 1975, it was not clear to the Chamber whether the April 1975 meeting genuinely took place, but it was widely reported in the international press. |1137| A third National Congress was allegedly convened in December 1975, following which KHIEU Samphan announced the adoption of a new draft constitution for Cambodia. |1138|

378. The Chamber is unable to say whether KHIEU Samphan retained the title of Commander-in-Chief when the CPNLAF was reformed into the RAK in July 1975. |1139| In any event, the Chamber is satisfied that KHIEU Samphan never had direct military responsibilities. |1140| He did, however, attend meetings with other CPK/DK senior leaders and military commanders or Zone or Sector-level officials at which military matters were discussed. |1141|

379. As well as making speeches, KHIEU Samphan played a role in the reeducation of those returning to Cambodia from overseas, conducting at least one political study session with returnees in 1975. |1142| A number of witnesses who testified before the Chamber reported attending large-scale political training sessions during the DK period at which KHIEU Samphan lectured or taught. |1143|

380. In early 1976, KHIEU Samphan accompanied NORODOM Sihanouk on a tour of the Cambodian countryside, during which they visited worksites and witnessed thousands of labourers working on agricultural projects. |1144|

8.3.2. President of the State Presidium

381. In April 1976, NORODOM Sihanouk and all members of the GRUNK resigned to make way for the new government established by the DK Constitution. |1145| Instead of a monarchy, the DK Constitution provided for a State Presidium to represent the State of DK at home and overseas. |1146| The State Presidium comprised a President, First Vice-President and Second Vice-President; although in principle these posts were to be elected by the PRA, in reality KHIEU Samphan was chosen to be President by the CPK Central Committee before the PRA was ever convened. |1147| His appointment was formally confirmed at the PRA's inaugural session. |1148| Constitutionally, the President had no executive power; as head of state, KHIEU Samphan's role was largely symbolic. |1149|

382. As President of the State Presidium, KHIEU Samphan continued to perform diplomatic and ceremonial functions: for example, receiving letters of credentials from diplomats, |1150| welcoming foreign delegations, |1151| hosting and attending State receptions, |1152| sending and receiving diplomatic messages on behalf of the DK regime |1153| and leading DK delegations on trips abroad. |1154|

383. As President, KHIEU Samphan also continued to make speeches, praising the Cambodian people and revolutionary army for their role in the 'liberation' of Phnom Penh; |1155| supporting the creation of the new DK state and its institutions; |1156| endorsing the CPK's policies, such as the use of co-operatives, food rationing, child labour and worksites; |1157| celebrating purported achievements in nation-building and improvements in living conditions; |1158| and decrying Vietnamese 'aggression'. |1159| KHIEU Samphan told the Co-Investigating Judges that the content of his speeches was "dictated" by POL Pot and that, although he generally agreed with what he said, privately he disagreed with some of the specifics, such as the material on the abolition of the currency. |1160|

8.3.3. Membership of the Central and Standing Committees

384. KHIEU Samphan became a full-rights member of the CPK Central Committee in 1976, having been a candidate member since 1971. |1161| Although he has alleged that the Central Committee was not an "executive organisation" and merely discussed the implementation of Standing Committee policies, he has also claimed that the Central Committee issued directives intended to correct "abuses" and improve conditions in the countryside. |1162|

385. KHIEU Samphan was never formally a member of the CPK Standing Committee. |1163| He has admitted that he attended what he described as "open" or "expanded" meetings of the Standing Committee, but has consistently asserted that he did not voice opinions or participate in decision-making during those meetings. |1164| The Co-Prosecutors allege that KHIEU Samphan was a de facto member of the Standing Committee and that his attendance of its meetings placed him within a small group of powerful and fully-informed members of the Party Centre. |1165|

386. Twenty-three sets of Standing Committee meeting minutes were put before the Chamber. Of these, 19 contain lists of those attending the meetings, and 16 record 'Comrade Hem' (KHIEU Samphan) as being present. |1166| The minutes in evidence cover the period from August 1975 to June 1976, but do not necessarily represent all of the Standing Committee meetings held in that period, or during the DK era generally. |1167| The Chamber infers from KHIEU Samphan's regular attendance of Standing Committee meetings in the 1975-1976 period that he continued to attend Standing Committee meetings on a similarly regular basis thereafter. This is consistent with the evidence of his repeated visits to K-1 |1168| - where at least some of the meetings of the Standing Committee were held |1169| - and with his own admission that POL Pot "trusted" him. |1170|

387. The surviving minutes demonstrate that, despite his insistence to the contrary, KHIEU Samphan actively participated in some Standing Committee meetings. Although the minutes do not always attribute remarks to individual speakers, they prove that KHIEU Samphan contributed on at least two occasions, reporting to the Committee on relations with NORODOM Sihanouk and on the 'election' of 20 March 1976. |1171|

388. Moreover, despite repeatedly claiming that he was not kept well-informed during the DK era, |1172| and despite specifically denying knowledge of arrests, |1173| KHIEU Samphan was present at Standing Committee meetings during which arrests, |1174| propaganda, |1175| living conditions in the countryside (including illnesses, deaths and food shortages), |1176| child labour, |1177| foreign affairs, |1178| national defence, |1179| armed conflict with Vietnam |1180| and commerce |1181| were discussed.

389. Further demonstrating his level of awareness, KHIEU Samphan has admitted that he attributed the disappearance of friends and colleagues during the DK era to POL Pot but "kept on hoping that POL Pot would backtrack one day." |1182| He has also admitted that in mid-1978 he learned of "arrests and barbarous acts" in Preah Vihear, and specifically of the arrest and ill-treatment of his wife's siblings. |1183| Consistently with this, Witness MEAS Voeun - a military officer who went to the new North Zone in 1978 |1184| - testified that KHIEU Samphan sent him a telegram in 1978 asking about the welfare of his relatives, and ordering that they be sent to Phnom Penh if they were facing hardship. |1185| As a result, Witness MEAS Voeun made enquiries, and helped to secure the release of KHIEU Samphan's sister-in-law from a security centre in Siem Reap where she had been detained. |1186| While Witness KAING Guek Eav suggested that KANG Chap, the Secretary of the new North Zone, was punished by POL Pot for his role in this incident, |1187| in a letter written to national newspapers in 2001, KHIEU Samphan appeared to acknowledge that the detention of his relatives had led to the arrest of certain "regional party secretaries". |1188|

8.3.4. Membership of Office 870

390. Office 870, which oversaw the implementation of Standing Committee decisions, comprised two members: SUA Vasi alias Doeun, who was appointed chairman of the Office in October 1975, and KHIEU Samphan, who joined at around the same time. |1189| S-71, headed by CHFMM Sam Aok alias Pang, may have been a subordinate office of Office 870; the precise relationship was unclear. |1190|

391. The Co-Prosecutors allege that KHIEU Samphan succeeded Doeun as the head of Office 870 in 1976 or 1977. |1191| KHIEU Samphan has consistently denied that he ever served as the chairman of Office 870, and has claimed that he was responsible only for maintaining relations with NORODOM Sihanouk; setting the price scales for products from the co-operatives and other economic units; implementing Standing Committee decisions regarding the distribution of products to the Zones; and working with the Khmer Company for Foreign Trade ('FORTRA') on imports. |1192| In reality, as KHIEU Samphan has admitted, there was no exchange of merchandise between cooperatives, so his responsibility for the setting of prices was only ever theoretical. |1193|

392. KHIEU Samphan has claimed to be unaware of Doeun's precise role as chairman of Office 870, though he has acknowledged that Doeun received reports from the Zones and was "in charge of political affairs". |1194| Doeun was arrested and taken to S-21 in February 1977. |1195| Office 870 nevertheless continued to function until at least 1978: KHIEU Samphan has stated that he worked in Office 870 until 1978, and telegrams addressed to 'M-870' or copied to 'Office' were sent throughout 1977 and 1978. |1196|

393. KHIEU Samphan has speculated that Pang may have succeeded Doeun as chairman of Office 870; however, he has described this as a mere "presumption". |1197| Witnesses SALOTH Ban and PHY Phuon (both of whom worked at the Ministry of Foreign Affairs during the DK period) testified that Pang was the head of Office 870, but the dates they gave for Pang's purported chairmanship contradicted Standing Committee meeting minutes showing that Doeun was in charge of Office 870 in 1975. |1198| Other witnesses also described Pang as the head of Office 870, but without making reference to Doeun, leading the Chamber to conclude that they were confusing Office 870 with Office S-71. |1199| The Chamber is not convinced that Pang ever served as chairman of Office 870.

394. A number of other witnesses and experts who appeared before the Trial Chamber testified that it was KHIEU Samphan who replaced Doeun as head of Office 870.

395. PHY Phuon claimed that KHIEU Samphan took charge of Office 870 after Doeun's arrest although, as outlined above, his understanding of the sequence of events conflicted with documentary evidence before the Chamber. |1200| PHY Phuon's contact with KHIEU Samphan mainly concerned the reception of guests and his understanding of KHIEU Samphan's position within Office 870 was based on hearsay. |1201|

396. In his testimony before the Chamber, Witness KAING Guek Eav referred to the office chaired by Doeun as the "Central Office". |1202| However, in previous interviews with the Co-Investigating Judges, he called the same entity "Office 870". |1203| He alleged that KHIEU Samphan had a more senior role in Office 870 than Doeun, which he retained after Doeun's departure. |1204| KAING Guek Eav has admitted that he knew little about the work of Office 870, |1205| and his statements about KHIEU Samphan's position within the Office seemed to be inferences drawn from KHIEU Samphan's general seniority in the DK period, |1206| academic texts |1207| and hearsay. |1208|

397. Two interviews conducted by Witness Stephen HEDER suggested that KHIEU Samphan became chairman of Office 870 after Doeun. The first was an interview with VAN Rith, Minister of Commerce during the DK period, who is now deceased. |1209| Although Stephen HEDER - whom the Chamber found to be generally credible -testified as to the circumstances in which the interview was conducted, the Chamber has been unable to accord his notes of the interview significant probative value. |1210| The second was an interview with IENG Sary. |1211| However, as no full or formal record of the interview was made and IENG Sary subsequently denied having stated that KHIEU Samphan was appointed chief of Office 870, the summaries of the interview on the Case File cannot be given significant weight in this respect. |1212|

398. In the course of their historical research, neither Expert Philip SHORT nor Expert David CHANDLER came across any document confirming that KHIEU Samphan replaced Doeun as the head of Office 870. |1213| No such document was put before the Chamber. However, Philip SHORT told the Chamber that, based on the materials he had seen, it was "reasonable to assume" that KHIEU Samphan "had an important role" in the Office after Doeun's departure. |1214| David CHANDLER also assumed that KHIEU Samphan replaced Doeun after the latter's arrest. |1215|

399. Having considered the evidence, the Chamber is not satisfied that KHIEU Samphan ever served as the chairman of Office 870. The Chamber is therefore unable to say whether KHIEU Samphan saw all of the telegrams and documents passing through or copied to Office 870, in particular all of those which did not concern his specific areas of policy responsibility.

8.3.5. Oversight of the Commerce Committee (Ministry of Commerce)

400. In October 1975, the CPK Standing Committee assigned KHIEU Samphan responsibility for "the Front and the Royal Government, and Commerce for accounting and pricing". |1216| KOY Thuon alias Thuch was given responsibility for "domestic and international commerce" and VORN Vet for "Industry, Railroads and Fisheries". |1217| In March 1976, the Standing Committee appointed KHIEU Samphan to a committee charged with "mak[ing] examinations and preparation of merchandise which must be purchased"; the other members of the committee were KOY Thuon (chairman), IENG Sary, VORN Vet and SUA Vasi alias Doeun. |1218| At the same time, KHIEU Samphan was made chairman of a committee created to examine banking matters; the other members were KOY Thuon, IENG Sary and Doeun. |1219|

401. The hierarchy of responsibility for economic and commercial matters during the DK period was complicated by frequent arrests within the upper echelon of the CPK. The evidence before the Chamber has nevertheless enabled it to discern an approximate sequence of events.

402. After the Khmer Rouge seized power, the first person to take charge of the economy was KOY Thuon. He was arrested in April 1976 and taken to S-21 in 1977. |1220|

403. Around the time of KOY Thuon's arrest, the DK PRA confirmed VORN Vet as the Deputy Prime Minister responsible for economics, with six committees under his authority, including the Commerce Committee. |1221| The Commerce Committee (also known as the Ministry of Commerce |1222|) was responsible for the storage, import and export of goods during the DK era. Its operations included state warehouses, where goods from the Zones were stored and prepared for export; |1223| the Kampong Som port; |1224| and Ren Fung, a Hong Kong-based company established by the Committee which, together with FORTRA, |1225| enabled DK to trade on international markets. |1226| VORN Vet retained a supervisory role until his arrest in November 1978, but did not engage closely in the day-to-day management of the Commerce Committee. |1227|

404. Shortly after VORN Vet's appointment as Deputy Prime Minister, the CPK Standing Committee named VAN Rith, PRUM Nhem alias TIT Sun alias Nhem and 'Comrade Chhoeun' as the members of the Commerce Committee. |1228| A few weeks later, on 7 May 1976, the Standing Committee assigned NON Suon alias Chey, who was in charge of agriculture, |1229| to "come and control Commerce". SUA Vasi alias Doeun was also ordered to "go down to Commerce" until July 1976, balancing this with his work at Office 870. |1230| It was not clear to the Chamber what functions NON Suon performed in relation to the Commerce Committee, if any; Witness KAING Guek Eav told the Co-Investigating Judges that it was Doeun who took control of the Committee after KOY Thuon's arrest. |1231| In any event, the Commerce Committee had started to report to Doeun by August 1976, |1232| and by November 1976 NON Suon had been arrested and taken to S-21. |1233|

405. In October 1976, the Commerce Committee stopped reporting to Doeun. |1234| At some point thereafter, VAN Rith became chairman of the Commerce Committee (Minister of Commerce), a post he held until the end of the DK period. |1235| Doeun was arrested in February 1977. |1236|

406. Although he never served as Minister of Commerce, surviving documents demonstrate that KHIEU Samphan had an important role in relation to the DK economy, presumably in his admitted capacity as the member of Office 870 responsible for commerce. |1237| In October 1976, the Commerce Committee began to report to KHIEU Samphan instead of Doeun. |1238| Documents addressed or copied to KHIEU Samphan included reports of discussions with foreign trade delegations and other communications relating to international trade; |1239| reports on the quantities of rice sent to the state warehouses by the various Zones, and on the export of rice and other goods; |1240| purchase requests from various Ministries and lists of materials imported from China; |1241| reports on the use of a line of credit extended to DK by China; |1242| and messages to, from or between FORTRA and Ren Fung. |1243| The Commerce Committee frequently sought instructions and comments from KHIEU Samphan. |1244| Reports were often copied, but not specifically addressed, to VORN Vet, whose name generally came after KHIEU Samphan's in the lists of recipients. |1245| Very few reports were sent or copied to VORN Vet alone. |1246| KHIEU Samphan continued to receive reports and letters on trade matters after VORN Vet's arrest. |1247|

407. KHIEU Samphan visited the state warehouses with VAN Rith, where he inspected products destined for export and encouraged the workers to be careful and attentive. |1248| By his own admission, he had responsibility for the distribution of goods to the Zones. |1249| Witnesses KHIEV Neou and SAO Sarun recalled making requests to KHIEU Samphan for the delivery of particular goods to their Zones. |1250| Witnesses NORNG Sophang and PHAN Van, both of whom encoded and decoded telegrams, saw requests for materials sent to, and distribution orders sent by, KHIEU Samphan. |1251|

8.4. Conclusions

408. KHIEU Samphan claimed that his status as an intellectual alienated him from the inner circle of the CPK. |1252| In truth, however, his roles during the DK period prove that he had the confidence and trust of the other members of the Party Centre. |1253| He was trusted to attend and participate in meetings of the Central and Standing Committees, where information was shared and critical decisions were made. He was trusted to live and work closely with the CPK senior leaders, both prior to 1975 and subsequently at K-3 and K-1. He was trusted to represent the FUNK, the GRUNK and the DK regime publically, not only within Cambodia but also on trips abroad.

409. Despite holding an array of titles, the evidence suggests that KHIEU Samphan's decision-making power was primarily limited to matters of economics and foreign trade. However, he had a certain amount of broader authority by virtue of his senior position, as shown by his ability to ensure the safety of some of his family members in the countryside. Through his attendance of Central and Standing Committee meetings, his work in Office 870, his supervision of the Commerce Committee and the content of the speeches he made, he had knowledge of the CPK's policies and access to information about the situation in Cambodia generally, including knowledge of arrests of senior cadres such as KOY Thuon, Doeun and VORN Vet.

9. APPLICABLE LAW: CRIMES AGAINST HUMANITY

9.1. Murder

410. As relevant to Case 002/01, the Closing Order charges the Accused with murder as a crime against humanity during movement of the population (phase one) and at Tuol Po Chrey. |1254|

411. It is undisputed that murder was recognised as a crime against humanity under customary international law by 1975. |1255| Having regard to the development of the crime after World War II, it was foreseeable to the Accused as members of Cambodia's governing authority that they could be charged with murder as a crime against humanity from 1975. Moreover, the definition of murder as developed by post-World War II jurisprudence was sufficiently accessible to the Accused at the relevant time.

412. Jurisprudence clarifying the divergence between the English and French versions of relevant contemporaneous materials has established that it is murder ("meurtre") and not premeditated murder ("assassinat") which constitutes the underlying offence of a crime against humanity. |1256| The elements of the crime of murder are:

    (i) An act or omission of the accused, or of one or more persons for whose acts or omissions the accused bears criminal responsibility, that caused the death of the victim; and

    (ii) The intent of the accused or of the person or persons for whom he is criminally responsible to either to kill or to cause serious bodily harm in the reasonable knowledge that the act or omission would likely lead to death. |1257|

413. The elements of murder can be satisfied whether or not it is shown that a victim's body has been recovered. The fact of a victim's death can be inferred circumstantially from all of the evidence presented. All that is required to be established from that evidence is that the only reasonable inference is that the victim is dead as a result of acts or omissions of the accused or of one or more persons for whom the accused is criminally responsible. |1258|

9.2. Extermination

414. As relevant to Case 002/01, the Closing Order charges the Accused with extermination as a crime against humanity during movement of the population (phases one and two) and at Tuol Po Chrey. |1259| It alleges that "many people" died as a result of the conditions imposed during phases one and two of the population movement, specifically the deprivation of food, accommodation, medical care and hygiene. |1260|

415. It is undisputed that extermination was recognised as a crime against humanity under customary international law by 1975. |1261| Accordingly, it was foreseeable to the Accused as members of Cambodia's governing authority that they could be charged with extermination as a crime against humanity from 1975, and the definition of the crime was sufficiently accessible to the Accused at the time of the alleged crimes.

416. The actus reus (guilty act) of extermination consists of an act, omission or combination of each that results in the death of persons on a massive scale. |1262| There is no minimum number of victims required to establish extermination. |1263| The requirement of scale is to be assessed on a case-by-case basis, having regard to such factors as the time and place of the killings, the selection of the victims and the manner in which they were targeted, and whether the killings were aimed at the collective group rather than victims in their individual capacity. |1264| The perpetrator's role may be remote or indirect, |1265| and may include creating conditions of life aimed at destroying part of a population, such as withholding food or medicine. |1266|

417. The mens rea (criminal intent to commit an act) of extermination consists of the intent:

    (1) to kill persons on a massive scale; or

    (2) to inflict serious bodily injury or create conditions of living that lead to death, in the reasonable knowledge that such act or omission is likely to cause the death of a large number of persons (dolus eventualis). |1267|

While the mens rea for the crime of extermination has not been consistently defined in the jurisprudence of the ICTY and ICTR, appeal jurisprudence from these tribunals has seemingly evolved to exclude dolus eventualis from the definition of the mens rea for extermination. |1268| The Chamber considers that there was no reasoned basis for a departure from the original approach taken in the Krstić Trial Judgement, which encompassed dolus eventualis and was based on a review of pre-1975 jurisprudence.

418. The NUON Chea Defence makes two submissions with respect to the mens rea requirement of extermination. First, relying on the Vasiljević Trial Judgment, it submits that customary international law in 1975 required that the Accused knew that his action was part of 'a vast murderous enterprise' in which a large number of persons were marked for killing. In the alternative, relying on the Bagosora Trial Judgement, it submits that the proper mens rea standard is that the Accused intend to kill persons on a massive scale, or to systematically subject a large number of people to conditions of living that would lead to their deaths in a widespread or systematic manner (emphasis added). |1269|

419. The Chamber notes that the Stakić Appeals Judgement rejected 'knowledge of a vast scheme of collective murder' as a requirement for the mens rea of extermination, finding there was no support for the alleged element in the jurisprudence of that Tribunal. |1270| As to whether such knowledge was an element under customary international law in 1975, a review of the Vasiljević Trial Judgement reveals that that Chamber concluded that such a requirement existed based on the Eichmann judgment and the Nuremberg convictions of Defendants Sauckel and Fritzsche. |1271| To the extent that the Nuremberg tribunals set out the respective defendants' knowledge of the schemes in which they were involved, the Chamber is not satisfied that those statements established a heightened mens rea requirement rather than simply reflecting the facts of each case. |1272| The Chamber accordingly rejects this submission.

420. In its alternative submission, the NUON Chea Defence relies upon the Bagosora Trial Judgement holding that "[t]he mens rea of extermination requires that the accused intend to kill persons on a massive scale or to subject a large number of people to conditions of living that would lead to their deaths in a widespread or systematic manner." |1273| In effect, this submission seeks to reflect the contextual elements of all crimes against humanity (which must be committed as part of a widespread or systematic attack) within the definition of the underlying crime of extermination. International jurisprudence clearly does not require this additional mens rea element for extermination. Accordingly, this submission is dismissed.

421. The IENG Sary Defence submitted that there is a further element to the actus reus of extermination, that the victims "must have been subjected to conditions inevitably leading to death." |1274| In the relevant portion of the Ntakirutimana Appeal Judgement, upon which the IENG Sary Defence relied, the ICTR Appeals Chamber found:

    [T]he crime of extermination requires proof that the Accused participated in a widespread or systematic killing or in subjecting a widespread number of people or systematically subjecting a number of people to conditions of living that would inevitably lead to death, and that the Accused intended by his acts or omissions this result. |1275|

422. While this appeal judgement clearly identifies a requirement that living conditions "inevitably lead to death", the Trial Chamber notes that causation was not at issue in the case and the Ntakirutimana Appeals Chamber did not directly address this element of this offence in its reasoning, nor did it set out a source for this standard. |1276| Similarly, while judgements in other cases subsequently adopted the Ntakirutimana definition of the actus reus of extermination, none of these cases turned on or even discussed the "inevitability" standard. |1277|

423. Several subsequent Appeals Chamber judgements from the ad hoc Tribunals, while relying on the Stakić and Ntakirutimana Appeal Judgements, have since defined the actus reus of extermination simply as the act of killing on a large scale. |1278|

424. In the Chamber's view, the "inevitability" standard articulated by the Ntakirutimana Appeals Chamber with respect to the actus reus of extermination appears unsupported. The Trial Chamber consequently rejects this submission by the IENG Sary Defence.

9.3. Persecution on Political Grounds

425. As relevant to Case 002/01, the Closing Order charges the Accused with political persecution as a crime against humanity during movement of the population (phases one and two) and at Tuol Po Chrey. It alleges that the CPK authorities, including the Accused, identified several groups as "enemies" based on their real or perceived political beliefs or political opposition to those wielding power within the CPK, and subjected them to various discriminatory policies. |1279|

426. The Supreme Court Chamber has affirmed the Trial Chamber's finding that persecution existed as a crime against humanity under customary international law by 1975. |1280| Having regard to the development of the crime after World War II, it was foreseeable to the Accused as members of Cambodia's governing authority that they could be charged with persecution as a crime against humanity from 1975. Moreover, the definition of persecution as developed by post-World War II jurisprudence was sufficiently accessible to the Accused at the relevant time.

427. The Supreme Court Chamber has affirmed the definition of persecution:

    (i) an act or omission which [...] discriminates in fact and which denies or infringes upon a fundamental right laid down in international customary or treaty law; |1281| and

    (ii) deliberate perpetration of an act or omission with the intent to discriminate on political, racial or religious grounds. |1282|

428. With respect to the discriminatory element of the actus reus, the Supreme Court Chamber has held that 'discrimination in fact' occurs where a victim is targeted because of the victim's membership in a group defined by the perpetrator on specific grounds, namely on a political, racial or religious basis, |1283| and the victim belongs to a sufficiently discernible political, racial or religious group, |1284| such that requisite persecutory consequences must occur for the group. |1285|

429. With regard to mens rea, while the specific intent may not be inferred merely by reference to the general discriminatory nature of an attack, it may be inferred from such a context as long as, in view of the facts of the case, circumstances surrounding the commission of the alleged acts substantiate the existence of such intent. Circumstances which may be taken into consideration include the systematic nature of the crimes committed against a group and the general attitude of the alleged perpetrator as demonstrated by his behaviour. |1286|

430. The NUON Chea Defence submits that, contrary to the view advanced by the Supreme Court Chamber in the KAING Guek Eav Appeal Judgement, the definition of 'political group' requires that individuals hold political views or be members of a political group or party. |1287| The Chamber notes that individuals who hold political views or are members of a political group or party are the most obvious examples of persons who may be the victims of political persecution. |1288| However, while some international jurisprudence has construed 'political grounds' narrowly, |1289| other jurisprudence has found that political persecution occurred where discrimination has been effected pursuant to political motivations or a political agenda against a group which itself may not hold any political views. |1290| Consequently, the Chamber rejects the narrow interpretation of 'political groups' put forward by the NUON Chea Defence.

431. The particular acts amounting to persecution must be expressly charged. |1291| In this regard, the KHIEU Samphan Defence submits that a link must exist between the acts of persecution and any other underlying offence within the jurisdiction of the ECCC, on the basis that pursuant to Article 9 of the Agreement, the Chamber is obliged to apply the definition of crimes against humanity as set out in the 1998 Rome Statute. |1292|

432. Contrary to this submission and in accordance with the principle of legality, the Chamber is required to apply the definition of persecution as a crime against humanity as it existed under customary international law in 1975. |1293| The Supreme Court Chamber in KAING Guek Eav noted that the Nuremberg Tribunal and subsequent military tribunals convicted defendants for an extensive range of persecutory conduct, where this was of equal gravity to other crimes against humanity enumerated in their respective statutes. This conduct encompassed acts committed in connection with other crimes against humanity or war crimes, as well as acts not expressly listed in the constitutive instruments and which were not crimes against humanity in their own right. |1294| The Supreme Court Chamber thus concluded that

    by 1975, it was clear under post-World War II case law that persecution may consist of 'other acts' outside of the Tribunals' charters in addition to other underlying crimes against humanity or war crimes as long as under the doctrine of ejusdem generis the conduct rose to the level of gravity and severity of other underlying crimes against humanity, resulting in breaches to fundamental human rights. |1295|

433. Accordingly, the Chamber rejects the KHIEU Samphan Defence submission on this point. Persecutory acts may include the other underlying offences for crimes against humanity (such as murder, extermination, enslavement, imprisonment and torture), as well as other acts which rise to the same level of gravity or seriousness, including acts which are not necessarily crimes in and of themselves. |1296| In determining whether this threshold is met, acts should not be considered in isolation but rather should be examined in their context and with consideration of their cumulative effect. |1297|

9.4. Other Inhumane Acts

434. As relevant to Case 002/01, the Closing Order charges the Accused with 'other inhumane acts' as crimes against humanity, namely enforced disappearances, forced transfer and attacks against human dignity. |1298|

435. 'Other inhumane acts' was established as a crime against humanity under customary international law before 1975 and was thus both accessible and foreseeable to the Accused. |1299|

436. The NUON Chea Defence submits that in order to respect the principle of legality, indications that a form of conduct specifically charged in the Closing Order was not considered a crime against humanity at the relevant time precludes criminal responsibility. |1300| Contrary to this view, the conduct underlying the crime of 'other inhumane acts' need not itself have had the status of a crime against humanity. The Pre-Trial Chamber has previously ruled that 'other inhumane acts' is in itself a crime under international law and that it is accordingly unnecessary to establish that each of the sub-categories alleged to fall within the ambit of this offence were criminalised. |1301| Rather, the principle of legality attaches to the entire category of 'other inhumane acts' and not to each sub-category of this offence. |1302| The Trial Chamber agrees with the reasoning of the Pre-Trial Chamber and accordingly rejects the NUON Chea Defence submission.

437. 'Other inhumane acts' functions as a residual category, |1303| criminalising conduct which meets the criteria of a crime against humanity but does not fit within one of the other specified underlying crimes. |1304| The elements of the crime of 'other inhumane acts' are an act or omission of the accused or his subordinate:

    (i) causing serious bodily or mental harm or constituting a serious attack on human dignity; |1305| and

    (ii) performed deliberately with the intent to inflict serious bodily or mental harm or commit a serious attack upon the human dignity of the victim at the time of the act or omission. |1306|

438. Acts or omissions must be of a nature and gravity similar to other enumerated crimes against humanity, |1307| the severity to be assessed on a case-by-case basis with due regard for the individual circumstances of the case. |1308| These may include the nature of the act or omission, the context in which it occurred, the personal circumstances of the victim, as well as the impact of the act upon the victim. |1309| The NUON Chea Defence submission that "the failure during the relevant period to characterize or prosecute any particular act as a crime against humanity would tend to establish ... that it was not seen to be of sufficient gravity to rise to the level of an 'other inhumane act'" |1310| ignores the requirement that the severity of particular conduct needs to be assessed on a case-by-case basis with due regard for the individual circumstances of the case. Accordingly, while previous characterisation or prosecution of conduct as a crime against humanity may give a general indication of the severity, it is not determinative of severity of the conduct in a particular case. The Chamber accordingly rejects this submission.

439. There is no requirement that the suffering have long term effects, although this may be relevant to the determination of the seriousness of the act. |1311|

440. It follows that in order to fall within the ambit of 'other inhumane acts' as a crime against humanity, the Chamber need only consider whether enforced disappearances, forced transfer and attacks against human dignity are of a similar nature and gravity to the other enumerated offences under the ECCC Law.

9.4.1. Enforced Disappearances

441. As relevant to Case 002/01, the Closing Order charges the Accused with enforced disappearances during movement of the population (phase two). |1312|

442. The Pre-Trial Chamber did not address whether enforced disappearances constituted 'other inhumane acts', considering this to be a mixed question of law and fact more appropriately addressed by the Trial Chamber in the verdict. |1313|

443. The KHIEU Samphan and NUON Chea Defence submit that enforced disappearances cannot amount to a crime against humanity through characterisation as 'other inhumane acts', on the basis that the crime of forced disappearances was not part of customary international law during the period 1975-1979. |1314| The Chamber dismisses this submission on the basis that conduct amounting to an 'other inhumane act' need not also qualify as a discrete crime, as discussed above. |1315| For the same reason, the Chamber dismisses the related NUON Chea Defence submission that there must have been contemporary evidence of the criminalisation of 'other inhumane acts' specifically for forced disappearances. Instead, the Chamber must be satisfied that the conduct of enforced disappearances is of sufficient gravity to amount to an 'other inhumane act' in this case.

444. Enforced disappearances have previously been found to amount to criminal conduct. In the Nuremberg Judgement, the administration of German territories in accordance with Nazi Germany's "Nacht und Nebel" (the Night and Fog) Decree, an explicit state policy which used enforced disappearances in order to spread terror throughout the population and suppress dissent, |1316| was found to violate Article 46 of the 1907 Hague Regulations and was thus found to constitute a war crime. |1317| Field Marshal Keitel was convicted, amongst other things, for his role in implementing this program. |1318| While it is unclear from the Nuremberg Judgment whether his conduct concerning enforced disappearances was also considered to amount to a crime against humanity, it was clearly considered to be of extreme gravity.

445. Implementation of the Night and Fog Decree was also found to amount to a war crime and a crime against humanity in the Justice case. |1319| Most relevantly, this case condemned the Night and Fog program as amounting to inhumane treatment in light of its impact not only on the individuals who disappeared, but also on prisoners' families who were denied any information as to their relatives' fate. |1320|

446. Post-1975 instruments and jurisprudence also recognise that such conduct may be considered of the utmost gravity. In 1978, the General Assembly and human rights courts recognised that enforced disappearances typically involve a violation of the right to life, liberty and security of person, freedom from torture, freedom from arbitrary arrest and detention, the right to a fair and public trial and to recognition before the law. |1321| The Human Rights Committee has equally found forced disappearances constitute inhumane or degrading treatment. |1322| More recent international instruments have also emphasised that acts of enforced disappearances are of extreme gravity, similar to that of the other enumerated crimes against humanity. Some have criminalised enforced disappearances as a discrete crime against humanity. |1323|

447. International jurisprudence from the ad hoc tribunals has also recognised that enforced disappearances may be serious enough to constitute 'other inhumane acts' or persecution as a crime against humanity, all other conditions being satisfied. |1324| The Rome Statute also recognises enforced disappearances as a discrete crime underlying crimes against humanity. |1325|

448. The Trial Chamber consequently finds that enforced disappearances may be of similar gravity to the other crimes against humanity enumerated in Article 5 of the ECCC Law and thus may fall within the ambit of 'other inhumane acts'. Enforced disappearances occur when: (i) an individual is deprived of his or her liberty; (ii) the deprivation of liberty is followed by the refusal to disclose information regarding the fate or whereabouts of the person concerned, or to acknowledge the deprivation of liberty, and thereby deny the individual recourse to the applicable legal remedies and procedural guarantees, and (iii) the first and second elements were carried out by state agents, or with the authorisation, support or acquiescence of a State or political organisation. |1326|

9.4.2. Forced Transfer

449. As relevant to Case 002/01, the Closing Order charges the Accused with forced transfers within the territory of Cambodia as 'other inhumane acts' through movement of the population (phases one and two). |1327|

450. Forced transfer involves the (i) intentional, |1328| (ii) forced displacement |1329| of individuals (iii) from an area in which they are lawfully present, |1330| (iv) not justified by concerns regarding the security of the civilian population or military necessity. |1331| Forced transfers undertaken in the interest of civilian security or military necessity, just as all measures restricting freedom of movement, "must conform to the principle of proportionality; they must be appropriate to achieve their protective function; they must be the least intrusive instrument amongst those which might achieve the desired result; and they must be proportionate to the interest to be protected". |1332| For a transfer to be considered proportional, evacuees must be "transferred back to their homes as soon as hostilities in the area in question have ceased". |1333| Additionally, those responsible for a transfer "shall ensure, to the greatest practicable extent, that proper accommodation is provided to receive the protected persons, that the removals are effected in satisfactory conditions of hygiene, health, safety and nutrition, and that members of the same family are not separated". |1334| Finally, the Chamber notes that displacement is not justifiable where the humanitarian or military situation causing the displacement is itself the result of the accused's own unlawful activity. |1335|

451. The Co-Prosecutors bear the burden of proof in relation to all criminal elements, including the absence of justification of the forced transfer under international law. |1336| Whether an act was indeed permissible under international law requires an assessment of the factual context on a case-by-case basis. |1337| This factual context must be viewed from the time at which the decision to undertake a transfer was made. |1338| Thus evidence that a plan or policy to evacuate persons was formulated "a considerable time" before may indicate that a transfer was carried out "irrespective of any question of military necessity". |1339|

452. The NUON Chea Defence submits that forced transfer did not form part of customary international law between 1975 and 1979. |1340| The Chamber dismisses this submission on the basis that conduct amounting to an 'other inhumane act' need not amount to a discrete crime, as discussed above. |1341| Instead, the Chamber must be satisfied that the conduct of forced transfer is of sufficient gravity to amount to an 'other inhumane act' in this case.

453. The NUON Chea Defence also appears to argue that acts of forced transfer are not as serious as other crimes against humanity and therefore cannot amount to 'other inhumane acts'. In this regard, it submits that displacement for economic purposes was widely practiced prior to, during and immediately following the temporal jurisdiction of the ECCC, |1342| and that prior to 1975 displacement within a territory could only rise to the level of other enumerated crimes if undertaken in the context of belligerent occupation, for a criminal purpose or in a criminal manner. |1343| The Chamber does not consider these submissions to be persuasive. Various pre-1975 instruments and jurisprudence indicate that forced displacements within national boundaries, carried out on grounds other than civilian security or military necessity, are of the utmost gravity.

454. The Tokyo Charter, Nuremberg Charter, and Control Council Law No. 10 each codified unlawful displacement both as a war crime and crime against humanity. |1344| The Nuremberg Tribunal and domestic courts applying international law before 1975 entered numerous convictions for forced movements of population including displacement within national boundaries perpetrated on grounds not recognised in international law, namely civilian security or military necessity. |1345| Between 1949 and 1975, international instruments recognised forms of displacement, without regard for the crossing of any boundary, as war crimes and crimes against humanity. |1346|

455. More recent jurisprudence from international criminal tribunals, |1347| as well as Article 7(1)(d) of the Rome Statute provide further indications that forced transfer may be considered of similar gravity to other crimes against humanity. The Trial Chamber accordingly finds that forced transfer may constitute an 'other inhumane act', depending on the circumstances of the case.

9.4.3. Attacks Against Human Dignity

456. As relevant to Case 002/01, the Closing Order alleges that attacks against human dignity resulted from depriving the civilian population of adequate food, shelter, medical assistance, and minimum sanitary conditions during phases one and two of the population movements. |1348|

457. According to international jurisprudence, deprivations of food, water, adequate shelter and medical assistance and sub-par sanitary conditions in the context of detention constitute an attack upon the human dignity of the detainees, and the offence of cruel treatment as violations of the laws or customs of war under the ICTY Statute. |1349| Similar deprivations have been described as cruel and inhumane treatment that can rise to the level of gravity of the other crimes enumerated in Article 5 of the ECCC Law and amount to persecution as a crime against humanity. |1350| In the context of genocide, the same deprivations have been considered to evidence conditions of life that would bring about a group's physical destruction. |1351|

458. The Trial Chamber consequently finds that such deprivations may be of similar gravity to the enumerated crimes against humanity and thus may fall within the ambit of 'other inhumane acts'.

10. MOVEMENT OF THE POPULATION (PHASE ONE)

10.1. Closing Order

459. According to the Closing Order, after Khmer Rouge troops took over Phnom Penh on 17 April 1975, using threats and violence, they forcibly evacuated the city's entire population, which was predominantly civilian, to rural areas. |1352| The evacuation was not justified by grounds permitted by international law. |1353| The Closing Order indicates that in implementing the evacuation many civilians and officials of the Khmer Republic, especially those who were high-ranking, were killed or disappeared. |1354| Moreover, during the course of the evacuation, evacuees endured harsh conditions and lacked food, water, medicine or accommodation causing many to fall sick or die. |1355| The Closing Order charges the Accused with murder, extermination, political persecution and 'other inhumane acts' of (i) attacks against human dignity and (ii) forced transfer, as crimes against humanity for crimes allegedly committed during movement of the population (phase one). |1356|

10.2. Events of 17 April 1975 and the Ensuing Days

10.2.1. Implementation

460. On the morning of 17 April 1975 Khmer Rouge forces from various zones across Cambodia |1357| attacked and entered Phnom Penh from all directions. |1358| Khmer Rouge troops, including children and teenagers, were commonly identified as wearing black pants and shirts, rubber thongs, kramas or caps, and being heavily armed. |1359| Although Khmer Rouge troops had been ordered to capture Phnom Penh on 18 April 1975, the town was liberated earlier as the opposing Khmer Republic forces in Phnom Penh posed no resistance. |1360| Despite limited instances of gunfire between Khmer Rouge and military troops, |1361| after entering the capital, fighting generally ceased. |1362| The various Khmer Rouge divisions took control of different areas of Phnom Penh. |1363|

10.2.2. Radio Broadcasts

461. There were a series of announcements and radio broadcasts during the course of the morning by various parties including HEM Keth Dara (representative of MONATIO or Mouvement National) |1364| and the supreme patriarchs of two Buddhist religious orders. |1365| Thereafter, General MEY Sichan, spokesperson for the government's armed forces, invited Khmer Rouge representatives to Phnom Penh and called on all Khmer Republic soldiers across the country to lay down their weapons. |1366| Within minutes of that announcement, Khmer Rouge took control of the radio, rejected the invitation to negotiate with any of the "contemptible, traitorous LON Nol clique", claimed they were "entering the capital through force of arms", invited the victorious CPNLAF commanders to the Ministry of Information and ordered "the remaining members of the traitorous Lon Nol clique [to] lay down weapons and surrender" to the FUNK forces from the north and east regions. |1367|

462. Shortly thereafter, an unidentified Khmer Rouge leader announced that after meeting with CHHFM Chuon, LON Non and the supreme patriarchs of the two main religious orders, the Khmer Republic army agreed to lay down its weapons and surrender. Accordingly, the speaker called on "ministers and all other generals who have not run away, to immediately turn themselves over at the Information Ministry to help formulate measures to restore order" and declared that a committee composed of comrades of the united front and liberation front coming from countrywide to attend the meeting would shortly be set up. |1368|

463. By mid-morning Khmer Rouge troops had taken control of all of Phnom Penh. |1369|

10.2.3. Mood in Phnom Penh and Announcement of the Evacuation

464. For several hours, shortly after the entry of Khmer Rouge forces in the city began, soldiers dressed in black |1370| were saying "the war is over" and the population was happy that hostilities had ended. |1371| People took to the streets to celebrate and congratulate the Khmer Rouge soldiers, believing peace would return to Cambodia. |1372| However, in the following hours the mood changed as the Khmer Rouge began to instruct the population to leave Phnom Penh immediately. |1373|

10.2.4. Temporary Nature and Return 'in three days'

465. The Khmer Rouge announced to the population that the evacuation was temporary, with most witnesses being told they needed only evacuate for three or more days, after which they could return home. |1374|

466. Advised to take little and believing they would return in three days, most left with few possessions. |1375| Most people gathered family members and took what little they could, such as money. |1376| Some were forced to leave without some or all their family members. |1377|

467. According to two sources, some Khmer Rouge told people leaving the city or already on the road that they would never return. |1378|

10.2.5. Claimed Security Concerns

468. Khmer Rouge soldiers told the local population that they were being evacuated in order to protect them against anticipated further aerial bombardments by the U.S.A. |1379| Even residents who did not believe this explanation evacuated nonetheless in the face of threats by Khmer Rouge soldiers. |1380|

469. Yet other residents were told the evacuation was for their public safety as Angkar needed to 'sweep' or 'clean' the remaining enemies from the city, organise the city, or disperse the enemy's spy network, which allegedly included American imperialist spies in Phnom Penh. |1381|

470. Numerous divisions took part in evacuating Phnom Penh. |1382| Some Khmer Rouge units were tasked with evicting people from their homes, while others were charged with monitoring the evacuation or looting in the city. |1383| According to Witness ROCHEOM Ton who had guarded the April 1975 meeting at which the plan to evacuate Phnom Penh was discussed, |1384| the evacuation was to be carried out within one week. |1385|

10.2.6. Evacuation "using any means"

471. Witness SUM Chea, a Khmer Rouge soldier involved in evacuating the population, received orders from Bong Hak, the head of his battalion, |1386| to evacuate the population. |1387| According to SUM Chea, Bong Hak said that without mistreating some of the people, they would not manage to empty the city of its population. |1388| Groups designated to force civilians out had to resort to whatever means possible to ensure the latter's departure. |1389| Although he claimed his division did not mistreat people, |1390| he knew from Hak that other soldiers resorted to measures such as forcing people out at gunpoint, firing their guns, beating and mistreating civilians who refused to go and, in the worst cases, shooting them. |1391| Another former Khmer Rouge soldier stated she received orders from her supervisor to throw residents and their belongings out of their houses if people did not want to leave. |1392| Numerous witnesses testified that, following these instructions, over the course of 17 April and the ensuing days |1393| armed Khmer Rouge soldiers entered people's homes and even pagodas, and forced people out at gunpoint. |1394| Civil Party MOM Sam Ouern was in her house when she was ordered to evacuate by a member of the Khmer Rouge holding her at gunpoint. |1395| Similarly, Civil Party CHHENG Eng Ly's mother and the other elderly of the city were forced to evacuate at gunpoint. |1396|

472. Numerous witnesses, civil parties and victims recounted how soldiers were aggressive and shouted at members of the population or fired shots in the air to urge the population to leave their homes and move. |1397| Two former Khmer Rouge soldiers involved in the evacuation confirmed that soldiers forcibly expelled residents and their belongings out of their houses. |1398| Moreover, Sydney SCHANBERG described how teams of shouting and armed Khmer Rouge soldiers fired shots in the air to demonstrate they meant business when families moved too slowly for the insurgents' taste. |1399|

473. Evacuees were also subjected to physical abuse: Civil Party PO Dina recounted how armed Khmer Rouge forces tied up, beat and kicked her husband, while Civil Party PECH Srey Phal saw that those who protested against leaving were beaten with gun butts. |1400|

474. Khmer Rouge soldiers also threatened to kill those who refused to follow their instructions and leave. |1401| Numerous civil parties and victims recounted how those who did not immediately obey were shot and killed on the spot. |1402| In particular, Civil Party Denise AFFONCO described how a school friend of hers who stayed to wait for her husband was killed on the spot, and Civil Party PIN Yathay recounted how a soldier had shot a boy who had sought to return home to collect something, stating "this is what happens to recalcitrants". |1403| The written eyewitness accounts of other individuals also tell of such killings. |1404| That those who resisted the evacuation were shot was further corroborated by SUM Chea, a Khmer Rouge soldier. |1405|

475. Some people stated that that they did not see any resistance to the orders or subsequent violence. |1406| Indeed, many evacuees, having noted that the soldiers were armed and had a serious demeanour, did not consider the evacuation orders optional and dared not resist. |1407| According to François PONCHAUD, the Khmer Rouge used psychological pressure and threatening looks; it sufficed for soldiers to stare at the people to frighten them into listening to the soldiers' orders. |1408|

10.2.7. No Exceptions

476. Everyone was evacuated, |1409| including monks, |1410| the old and the young, the sick and injured from the city's hospitals, |1411| pregnant women and those who had recently given birth. |1412| Witnesses and civil parties recounted seeing the sick and injured evacuated while limping on crutches, pushed in their hospital beds, wheelbarrows or wheelchairs, with intravenous drips still attached or trailing oxygen tanks, |1413| while sick people and cripples were "crawling like worms" in front of the house where François PONCHAUD was standing. |1414|

477. At hospitals, seriously injured patients (primarily soldiers previously injured in fighting) and the weak who could not be evacuated were left behind to die as everyone else was evacuated. |1415| Two accounts relate how surgeons were chased out of the Red Cross surgery at Hotel Le Phnom and the Russian Hospital respectively while in the middle of operations, leaving their patients on the operating table to die. |1416| Sydney SCHANBERG noted that a nurse from Calmette hospital said that staff hoped that Khmer Rouge doctors would come and care for those gravely wounded and newly operated persons who could not be moved, but they never saw any Khmer Rouge medical teams, only soldiers. |1417| MEAS Saran, a nurse at Borei Keila Hospital at the time, also described how despite the presence of numerous untreated wounded who had arrived at the hospital, the Khmer Rouge did not take charge of the hospital or assist the staff to evacuate the hospital. |1418| According to NUON Chea, the leadership did not have time to determine how many hospitals or patients would be affected by the decision to evacuate. |1419|

478. Hotel Le Phnom, an ICRC-declared neutral zone which as of one week before 17 April was used to shelter wounded soldiers and refugees, |1420| was also forcibly evacuated; Khmer Rouge soldiers expelled Cambodians taking refuge there, as well as Red Cross personnel and foreigners. |1421| The latter, including Alan ROCKOFF and Sydney SCHANBERG, were directed to the French Embassy where many foreigners and Cambodians also sought refuge. |1422|

479. Seeking to enter and search Embassy premises on several occasions, |1423| the Khmer Rouge soon considered that the Embassy had become a mere 'regroupment centre' for foreigners and declared the Embassy had lost its inviolable status. |1424| Consequently, hundreds of Cambodians taking refuge there were obliged to leave the Embassy premises, among them Cambodian men married to foreigners and who were thus separated from their foreign wives and Cambodian women who had not gained foreign citizenship although married to foreigners. |1425| As Cambodian women with foreign passports were permitted to remain in the Embassy with their foreign husbands, |1426| some arranged marriages quickly took place in an attempt to save some Cambodian women; babies were also left with or adopted by foreigners who had a hope of leaving Cambodia. |1427|

480. In accordance with a FUNK statement made in February 1975, |1428| foreigners were definitively evacuated to the Thai border several weeks later. |1429|

10.2.8. March Out of Phnom Penh

481. Armed Khmer Rouge soldiers lined the main roads and supervised the evacuation as they directed the population to keep moving out of the city and onwards. |1430| Some evacuees were prevented from finding their family members in other parts of the city. Denise AFFONCO and François PONCHAUD described how people were evacuated according to the sector they lived in, and that those who lived in the south could not travel towards the north of the city as there were roadblocks everywhere. Denise AFFONCO was herself unable to join her mother who was in the western part of the city. |1431|

482. The exodus of thousands of people from Phnom Penh was described as crowded, chaotic, confusing and difficult, as evacuees struggled with little children and elderly family members. |1432| Denise AFFONCO spoke of indescribable chaos, people carrying their possessions and walking under the sun with crying children. |1433| Jon Swain aptly described the exodus as a great caravan of human misery. |1434|

483. The streets were so crowded it was difficult to move. |1435| According to MOM Sam Ouern, it took her and her family six hours to get from their house south of the Independence Monument to Monivong Bridge |1436| due to the dense crowds. |1437| In the chaos and crowds of the evacuation, many people, including children, were separated from their families along the way. |1438| Denise AFFONCO lost sight of her brother-in-law, who was following the family's car, and has never seen him again. |1439|

484. The city's population set out by whatever means were available to them, mostly on foot, but also by bikes, push carts, or with cars. |1440| People who left by car soon ran out of fuel, or had their cars confiscated by Khmer Rouge soldiers shortly thereafter. |1441| Civil Party CHUM Sokha described how he and his family were forced to proceed on foot after Angkar appropriated the jeep they were using, claiming it belonged to the imperialists and was a spoil of war. |1442|

10.2.9. Destination

485. At the time of evacuation many people did not know where to go other than to exit the city. |1443| Some were directed to return to their native villages or a rural area. |1444| NY Kan, SON Sen's brother and member of the CPK propaganda committee, stated however that he was instructed to allow people to move to places of their choice, no one was forced to go somewhere they did not belong. |1445| Evacuees from Phnom Penh settled in rural areas in DK zones throughout the rest of the country, including Battambang, Kampong Cham, Kampong Chhnang, Kampong Speu, Kampong Thom, Kampot, Kandal, Prey Veng, Pursat, Svay Rieng and Takeo. |1446|

10.2.10. After Three Days

486. After the initial three days had passed, |1447| there were no announcements to return to Phnom Penh; rather, evacuees were told to continue on. |1448| Evacuees who made to return to Phnom Penh were threatened and told to move on. |1449| Those who persisted in trying to return to Phnom Penh were shot. |1450|

487. Accordingly, evacuees continued and travelled onwards for anywhere between several days and several weeks. |1451| Conditions throughout the journey were miserable and most lacked even the most basic of equipment with which to cook. |1452| Many people had limited food and water supplies or went without. |1453| Many were forced to exchange whatever belongings they had including clothes or to beg for food, |1454| searched for plants, vegetables and insects to eat, and drank dirty water from ponds along the way to survive. |1455|

488. Evacuees were forced to improvise makeshift accommodation along the way: they variously rested along the roadside, at empty marketplaces, at the entrance of pagodas, used abandoned houses, or sometimes sheltered under a tree. |1456| After Civil Party BAY Sophany and her children were chased to the outskirts of Traeuy Sla village, they built a shelter out of palm tree leaves and tree branches. |1457| Civil Party TOENG Sokha described how she learned one morning that they had slept next to a dead body and had to move somewhere else to spend the next night. |1458|

10.2.10.1. Violence Suffered

489. The journey of most evacuees was marked by terror and threats or incidents of violence by Khmer Rouge soldiers. There was evidence of some evacuees walking a certain distance at gunpoint, |1459| and of others being beaten by Khmer Rouge. |1460| Civil Party SOU Sotheavy attested to the rape of a friend. |1461|

490. There were also numerous instances of Khmer Rouge soldiers shooting and killing civilians during the course of the evacuation, with victims including a famous film actor, several people driving vehicles and even those who simply became too weak to continue. |1462| CHHENG Eng Ly recounted seeing a Khmer Rouge soldier tear apart a crying baby who was crawling on his dead mother's body by Monivong Bridge. |1463| Civil Party YIM Sovann recalled seeing Khmer Rouge soldiers shoot open a locked door to a house and then shoot the people who came out at O'Russey Market. |1464| Another victim described how she was pushing her husband, a former LON Nol soldier who was ill and unable to walk, in a cart when the Khmer Rouge took the cart from her, beat her husband and cut his throat in front of her. |1465|

10.2.11. Conditions Suffered

491. Moreover, in addition to the uncertainty about the future and their fates and the violence and terror suffered during the course of the evacuation, |1466| those evacuated experienced terrible conditions throughout their journey including extreme heat and a lack of sufficient food, clean water, medicine or adequate accommodation. |1467| Expelled at the height of the hot season |1468| and forced to walk for days if not weeks on end, evacuees, and young children in particular, soon suffered from exhaustion and could barely walk. |1469| SOU Sotheavy described how they had to walk day and night and were only allowed to stop when they reached their destination; she went for several days without food and was not given enough time to rest. |1470| As a result, many developed swollen limbs. |1471| Many evacuees were soon rendered weak or fell sick due to the conditions; some even died. |1472| Civil Party YOS Phal recounted how his health deteriorated, becoming emaciated and developing a fever during the course of his journey to Ph'av District. Having no access to proper medicine, he picked bitter leaves along the road, pounded, cooked and drank them as a form of medicine. |1473| Civil Party LAY Bony also struggled, having given birth just prior to the evacuation, while her youngest daughter developed bowel problems and severe diarrhoea and all her family members suffered high fevers. |1474|

492. Pregnant women gave birth along the road without medical assistance, and some miscarried. |1475| Nevertheless, under all circumstances, evacuees were forced to keep moving, even at the price of abandoning weak or elderly family members by the roadside. |1476| Civil Party PECH Srey Phal described how Khmer Rouge soldiers always pushed the evacuees onwards and would not allow people to stay behind with elderly family members who could not walk as 'traffic chaos' would result. |1477| Civil Party SENG Sivutha saw an old man lying almost motionless on the road with ants crawling over his body and into his eyes, and testified that it was the elderly in particular who were deserted along the roadside. |1478|

493. Even those who had money could not use it to buy food or medicine as Khmer Rouge soldiers announced that money had become useless under the new leadership. |1479|

10.2.12. Assistance Offered

494. The evidence of Witness KHIEV Neou, a monk, indicated a degree of preparation for the welfare of the evacuees en route to the countryside. KHIEV Neou saw Khmer Rouge cadres travelling and organising accommodation for the evacuees, |1480| Several other witnesses also gave evidence of instances of assistance, primarily transport, |1481| although these appear to have been sporadic. Indeed, one evacuee acknowledged that it was a privilege that the group of high-class families with which she found herself evacuated was provided with food and water during the one week they stayed at the Royal University of Phnom Penh, and that they were evacuated to Pursat by truck. |1482|

495. In contrast, numerous witnesses and civil parties recounted how the Khmer Rouge soldiers along the way did not provide them with any food, water, medicine or even transport, not even to assist the evacuees who were weak, elderly or injured. |1483|

According to ROCHEOM Ton who guarded the April 1975 meeting at which the plan to evacuate of Phnom Penh was discussed, details such as how to feed people or to care for the elderly, children, or the sick during the evacuation were not considered during this meeting. |1484|

496. Former Khmer Rouge soldiers involved with the evacuation confirmed that their respective units did not help or offer any assistance to those evacuees leaving the city, or receive instructions to do so. |1485| SUM Chea confirmed that evacuees were to fend for themselves as there was no policy to assist them. Indeed his battalion did not provide food or water to the evacuees as the soldiers themselves could not afford enough food to eat. |1486| Accordingly, the Chamber is satisfied that, overall, Khmer Rouge soldiers did not provide adequate food, water, medical treatment or accommodation for those forced to leave Phnom Penh.

10.2.13. Deaths

497. In the face of severe and unrelenting conditions during the course of the evacuation, some evacuees either killed themselves or soon died from a combination of exhaustion, malnutrition or disease. |1487| Numerous witnesses recounted seeing people dying in the streets and along the roadside. |1488| Civil Party PIN Yathay described how the further they travelled from the capital, the more exhaustion claimed the sick, the injured, the lame and the old, and increasingly they began to see bodies left beside the highway, until they were no longer shocked by the sight. |1489| PECH Srey Phal stated that by the time they reached Stung Meanchey, they saw dead people on hospital beds abandoned by the roadside on the outskirts of Phnom Penh. |1490|

498. Children in particular succumbed to hunger and the various illnesses they contracted throughout the journey. |1491| A Cambodian physician, Dr. Hay, stated that on the march from Phnom Penh they must have passed the body of a child every 200 metres. Most had died from gastrointestinal afflictions which caused complete dehydration; the children needed rest and medication yet neither was available. |1492| PECH Srey Phal, having no breast milk, milk or medicine for her baby, could only feed her baby water; her baby soon died and she was instructed to bury her in the forest. |1493| Others, such as BAY Sophany's youngest daughter who suffered from dysentery and vomiting, died from inadequate medical care; BAY described how her daughter immediately had a seizure and died after the medic they visited injected something into her daughter's head. BAY also buried her in a forest nearby. |1494|

10.2.14. Dead Bodies

499. While some people claimed they did not see any dead bodies along the way, |1495| there was significant evidence of wounded people or dead bodies lying along the roads leading out of Phnom Penh. |1496| There were so many corpses that, according to Witness KUNG Kim, a former Khmer Rouge soldier, they were ordered to clear corpses from the road, and were to use tractors to push the corpses into the river. |1497|

500. Victims were identified as either Khmer Republic soldiers |1498| or as civilians, young and old alike. |1499| The exact circumstances of the death of those whose corpses were visible along the roads, are unclear. |1500| It is likely that some of them, and in particular the soldiers, were killed during the attack preceding the capture of Phnom Penh. However given the evidence discussed in Section 10.2.13 ("Deaths"), the Chamber finds that the corpses which were seen at the time of the evacuation comprised both soldiers, including those who died during the fighting, and evacuees.

10.2.15. Treatment of Officials and Soldiers of the Khmer Republic

501. After the Khmer Rouge entered and conquered Phnom Penh, General MEY Sichan made a radio announcement calling on all Khmer Republic soldiers to lay down their weapons. |1501| The Khmer Rouge informed the people of Phnom Penh via loudspeaker that they could go about their business and that only the seven traitors, including LON Nol, SIRIK Matak and CHENG Heng, would be killed. |1502| At that time, several of the high-ranking officials who had previously been identified by radio, including LON Nol, had already fled the country. |1503| LONG Boret, SIRIK Matak and some other high-level officials still remained in Cambodia. |1504|

502. After the radio announcements many Khmer Republic soldiers waved white flags in surrender, laid down their arms, and shed their uniforms. |1505| Khmer Rouge units were instructed not to shoot people waving white flags. |1506|

503. Having occupied the Ministry of Information, an unidentified individual speaking on behalf of the Khmer Rouge demanded "ministers and all other generals who ha[d] not run away, to immediately turn themselves over at the Ministry of Information to restore order." |1507| In response to the radio announcement, many generals and officers of the Khmer Republic reported to the Ministry of Information, including Brigadier General LON Non (Marshall LON Nol's younger brother), Brigadier General CHHIM Chuon and Prime Minister LONG Boret and his wife. |1508| Khmer Rouge soldiers also sought out those senior Khmer Republic officials taking refuge at the French Embassy: Sydney SCHANBERG described how he personally witnessed Prince SIRIK Matak and UNG Boun Hor (National Assembly President), both of whom had taken refuge at the French Embassy, leave with Khmer Rouge soldiers after the latter came in search for them. |1509| All of those senior officials disappeared and media and diplomatic dispatches subsequently reported that certain officials, including Prime Minister LONG Boret, Brigadier General LON Non and Prince SIRIK Matak, were executed. |1510|

504. Elsewhere throughout Phnom Penh, Khmer Rouge soldiers actively sought out remaining members of the fallen Khmer Republic and their 'accomplices'. |1511| Khmer Rouge soldiers thus searched for Khmer Republic soldiers and officials at various locations, including hospitals, Hotel Le Phnom and, in the ensuing days, at the French Embassy. |1512| SUM Chea, a Khmer Rouge soldier, testified that checkpoints were also established in and around the city, for instance at Chrouy Changvar Bridge and Phsar Thmei (central market), to check for former Khmer Republic soldiers, among others. |1513|

505. Various Khmer Rouge units received orders that Khmer Republic soldiers who surrendered their arms could be either evacuated with the population or re-educated, while those who did not surrender could be shot. |1514|

506. Civilian officials of the Khmer Republic, soldiers who had surrendered without being arrested or being sent back to 'work' in Phnom Penh and were no longer in uniform, as well as their respective families, were in fact evacuated alongside the civilian population. |1515| While many Khmer Republic soldiers and civilian officials were sent to villages for work or re-education, |1516| some evidence put before the Chamber appears to show that many were subsequently killed at their destinations. |1517| Conscious that executions carried out at worksites and cooperatives do not fall within the scope of Case 002/01, the Chamber will not have regard to these deaths in reaching its findings on the specific criminal charges in relation to movement of the population (phase one). The Chamber nevertheless includes this evidence here in order to present a full account of events at the time.

507. However, numerous other soldiers and civilian officials of the Khmer Republic, the former including those who had surrendered, were injured or had been detained and were thus hors de combat, were also executed on the spot in Phnom Penh. |1518|

508. Other Khmer Republic soldiers were arrested |1519| or separated from the civilian population, |1520| although their precise fate is unclear because if they were not immediately killed, they disappeared and were never seen again by their families. While some accounts reported that the soldiers were taken to be killed elsewhere, |1521| another stated that the soldiers were imprisoned. |1522|

509. As the evacuation proceeded, former Khmer Rouge soldiers reported they were instructed to kill all identified Khmer Republic soldiers. |1523| Indeed, according to KUNG Kim, as LON Nol soldiers shed their uniforms and thus increasingly blended into the civilian population, the Khmer Rouge were ordered to shoot "any remaining people" in Phnom Penh. |1524|

510. A few days after 17 April, pursuant to instructions to ensure that only Khmer Rouge soldiers remained in the city and everyone had been evicted, Khmer Rouge soldiers conducted another search of the city and sought to flush out those in hiding by cutting off the water supply. |1525| Those found who had resisted leaving after the first orders to evacuate were regarded as enemies and were to be arrested, shot or killed. |1526| Khmer Rouge soldiers exchanged fire with Khmer Republic soldiers found during these subsequent searches, killing some of them, as well as inflicting some civilian casualties. |1527|

511. In the days following the evacuation, the Khmer Rouge announced by radio and via loudspeaker in several areas around Phnom Penh that Khmer Republic officials should turn themselves in, reveal their former ranks and either return to Phnom Penh to collaborate or join the Khmer Rouge army. |1528| According to SUM Chea, former regiment commander KOEUN told SUM Chea's division to make such announcement in order to lure in former LON Nol soldiers after which they would be killed. |1529| There is evidence that Khmer Republic soldiers who heeded these calls were executed at various locations in or around Phnom Penh, including a place west of Preak Pnov and in Tuol Kork, or disappeared. |1530|

10.2.16. Checkpoints

512. At checkpoints along the roads leading out of Phnom Penh and in certain other towns, evacuees were searched and questioned about their biography, including their family members and the work they did in Phnom Penh. |1531|

513. While one account describes how those identified as LON Nol soldiers were executed on the spot by young Khmer Rouge soldiers, |1532| more often than not they were placed aside, arrested or tied up, and then taken away. |1533| According to another refugee account, travelling soldiers received much closer scrutiny at checkpoints than did civilians. |1534| Witness MEAS Saran described how evacuees at checkpoints kept disappearing after being stopped and questioned by the Khmer Rouge. |1535| Several evacuees saw Khmer Republic soldiers walking in single file and tied to each other in various ways, |1536| although few accounts detail the fate of these soldiers. While some subsequently learned that certain former Khmer Republic soldiers had been killed, |1537| others never received any news of those family members who were taken away. |1538| According to Witness PECH Chim, a member of the district committee who welcomed evacuees in his area, most of the women who had been married to former LON Nol soldiers and who he saw after Phnom Penh was seized, told him that the military 'took out' their husbands during the journey, meaning they had disappeared and that the women were widows. |1539| Yet another account stated that at Chamcar Leu, near Svay Teap, those identified as soldiers were sent to Stung, where soldiers had to clear the land and develop the forest. |1540|

514. In some locations, former officers, civil servants and other categories of professionals among the evacuees were urged to register their names with the Khmer Rouge soldiers with the promise of being able to return to Phnom Penh, although many distrusted the promises. |1541| Witness François PONCHAUD was told by a 50 year old man from Kien Svay of a similar call for registration in Kien Svay and Battambang sometime on 22 and 23 April 1975, after which those who signed up were rounded up and killed. |1542| Some accounts state the identified Khmer Republic officials were taken away and never seen again. |1543|

515. Although numerous Khmer Republic officials were sent to villages for work or re-education in the days following 17 April 1975, |1544| in view of the targeted searches, announcements and questioning of evacuees at checkpoints, all seeking to flush out such officials, the Chamber is satisfied that Khmer Rouge soldiers targeted officials of the Khmer Republic and that many Khmer Republic officials were either arrested and thereafter disappeared, or were killed in the days following 17 April 1975.

10.2.17. Treatment of the Evacuees Upon Arrival

516. For those who managed to reach a destination, the welcome experienced by the evacuees varied depending on their destination. As some people had been previously instructed to prepare to accept the evacuees, |1545| some new arrivals were initially greeted and helped by the 'base people' or 'old people' who gave the evacuees food and shelter, and even built them homes. |1546|

517. However, the Chamber notes that well before 17 April 1975 the Khmer Rouge had been fomenting resentment towards city people. |1547| Many other evacuees thus recounted how they were labelled '17 April people' or 'new people' to distinguish them from the local population (known as '18 April people', 'old people' or 'base people'), viewed with suspicion as capitalists or feudalists, and shunned and told to move on. |1548| BAY Sophany recounted how Khmer Rouge soldiers reprimanded the Base People for giving them food, as BAY and her family were considered 'new people' or '17 April people.' She testified that they were treated as a lower social class and that she and her children were chased to the outskirts of the village where they built their own shelter. |1549| Others subsequently received orders to leave or move elsewhere. |1550|

10.2.18. Completion of the Movement of the Population

518. Phnom Penh was largely emptied of its inhabitants within one week of its fall. |1551| Although IENG Sary stated in a media interview in September 1975 that 100,000 people had returned to the town and more could if they wished to, |1552| this was clearly incorrect. While there is evidence that some people returned to the outskirts of Phnom Penh soon after the evacuation, |1553| and up to 20,000 people lived in the city during the DK regime, |1554| most, if not all, of those who returned to Phnom Penh were authorised to do so to support the regime's operational needs. |1555| Indeed, authorisation was required in order to re-enter Phnom Penh. |1556|

519. Most of those transferred did not return to Phnom Penh until after 6 January 1979. |1557|

10.2.19. Total Number of People Transferred

520. There are no precise figures as to the total number of people who were transferred from Phnom Penh to the countryside on an allegedly temporary basis from 17 April 1975. Although inconclusive as to the number of evacuees who were finally moved, NUON Chea testified that prior to the evacuation of Phnom Penh the Zone Committee discussed how the Northwest Zone could receive 1.4 million evacuees, the Southwest Zone could take in more people, and the other zones could take in only limited numbers of Phnom Penh residents. |1558| Further, according to the U.S. State Department, Khmer Rouge communications exchanged between 18 and 23 April 1975 showed that the East Zone reportedly took in 500,000 to 600,000 people. |1559| While the Chamber is cautious as to the evidentiary value to be attached to the U.S. State Department's analysis, on the basis that the estimated population of Phnom Penh in April 1975 was 2 to 2.5 million |1560| and noting overwhelming and consistent oral testimony describing Phnom Penh as empty after the evacuation, |1561| it is satisfied that at least 2 million people were transferred from the capital to the countryside.

10.2.20. Total Number of Deaths

521. Equally there are no precise figures as to the total number of people who died during the evacuation from Phnom Penh and ensuing march to the countryside. Evidence before the Chamber suggests that anywhere between 2,000 and 20,000 people died during the evacuation and subsequent journey, demonstrating the impossibility of ascertaining the precise number of deaths that occurred. |1562| The Chamber notes that at the time of its expulsion the population of Phnom Penh had experienced a long siege characterised by food shortages, |1563| such that the population was severely weakened. In this weakened condition, the population was forced to march to rural areas during the hottest time of the year and in the almost complete absence of food, water, medical care, accommodation or transportation. |1564| Having regard to the totality of the evidence before the Trial Chamber describing the deaths that occurred during the evacuation due to killings, starvation and exhaustion, |1565| the Chamber is satisfied that at least several thousand people died during the transfer of the population from Phnom Penh to the countryside. Among the victims were babies, young children, sick and elderly people. |1566|

10.2.21. Effect on Evacuees

522. In addition to physical trauma endured during their exodus, many Cambodians continue to suffer from anxiety as a result of having experienced great loss. |1567| For people who lost loved ones, as well as their property, belongings and their homes, the trauma may have been compounded; such people are prone to loneliness and experience a loss of motivation in life. |1568| Denise AFFONCO described how her life "switched to hell" overnight as she and other transferees were chased from their houses and their properties were expropriated, |1569| while NOU Hoan still feels unsettled about the loss of his property, including family photos and his children's birth certificates and described the loss he feels as unimaginable. |1570|

523. Victims who were transferred, lost their homes, lost contact with family members, their surroundings, and their places of worship experienced a diminished sense of "physical and spiritual security". |1571| In particular, children who were displaced and thus taken away from their familiar surroundings lost the opportunity to interact with others, as well as the ability to plan for the future; they also faced difficulties settling into new and hostile surroundings. |1572|

524. Witnessing or hearing traumatic events also gave rise to mental and psychological disorders. |1573| For instance, Civil Party MOM Sam Ouern suffers from depression which she attributes to the loss of her children and husband as well as the trauma of seeing corpses during her forced exile from Phnom Penh. |1574| She is still terrified and traumatised from walking along roads littered with corpses after leaving Phnom Penh. |1575| Denise AFFONCO also recounted how thirty years after the regime she is still plagued by nightmares, haunted by her experiences and does not wish to set foot in Cambodia. |1576|

10.3. Policy and Justifications for the Evacuation

525. The NUON Chea and KHIEU Sampan Defence teams respectively contend that the alleged 'forced transfer' was in fact a legitimate population resettlement policy which sought to revitalise the Cambodian economy and ease the dire humanitarian and economic conditions prevailing in Phnom Penh and in Cambodia by 1975. |1577| The KHIEU Samphan Defence further contends that military necessity justified the evacuation in view of the uncertainty as to America's actions and the resistance posed by pockets of LON Nol soldiers. |1578|

10.3.1. Security Against Enemies and Weakening the Enemy

526. The CPK's leaders claimed that the evacuation of Phnom Penh was necessary to protect the new regime against the militaries of America and Vietnam, both of which were perceived at the time as enemies with competing interests. |1579| In public interviews, IENG Sary stated that the CPK leadership had uncovered American plans to sow confusion and undermine the new regime after the Khmer Rouge victory, and Phnom Penh was evacuated to thwart this plan. |1580| In particular, NUON Chea claimed that after the Khmer Rouge took control of Phnom Penh on 17 April, the CPK leadership feared that America would resume its bombing campaign |1581| and the possibility that any ensuing internal instability caused would create an unwanted opportunity for neighbouring Vietnam, with its expansionist tendencies, to intervene in Cambodia's affairs. |1582| The Central Committee feared that Vietnamese forces had already infiltrated Phnom Penh and considered that it would be disastrous to have fighting in Phnom Penh as there would be many casualties. |1583| KHIEU Samphan also cited the risk of CIA agents allying with LON Nol soldiers and Vietnamese communists to thwart the Khmer Rouge, and the risk of a Vietnamese invasion. |1584|

527. American bombings in Cambodia ended on 15 August 1973 and other incidents of bombing in the lead up to April 1975 were more likely attributable operations conduct by to the remaining Khmer Republic air force. |1585| With the U.S. Congress' 10 May 1973 vote terminating all funding for bombing operations in the region |1586|, and the developments in Vietnam where U.S. forces were definitively pulling out due to the Paris Peace Accords of January 1973 |1587|, the political and military situation that prevailed during the devastating U.S. bombing raids in Cambodia changed. This new context made it improbable that the American bombing campaign in Cambodia would continue following the fall of Phnom Penh. |1588|

528. There was an isolated incident of post-1973 American bombing in May 1975 when, upon the order of the U.S. President, an oil refinery and the port of Sihanoukville (previously) Kampong Som were bombed in response to the capture of the U.S. merchant ship Mayaguez by Khmer Rouge forces. |1589| This incident could not have been foreseen in the lead up to 17 April 1975, was not part of the earlier American bombing campaigns, and does not therefore lend support to NUON Chea's argument that further American bombings were feared. Moreover, in view of the fact that the CPK's own leadership came to Phnom Penh in the days following 17 April 1975 |1590| and based themselves in prominent locations apparently without any significant attempt to take precautions against aerial bombing, |1591| the Chamber does not find it credible that the CPK feared imminent bombing in April 1975 that justified Phnom Penh's evacuation. |1592| Even were the Chamber prepared to accept that the leadership believed there was a possibility of imminent bombing, no explanation is offered as to why orders to immediately evacuate did not extend to foreigners, |1593| who were not finally evacuated until two to three weeks later. |1594|

529. In a speech to the Communist Workers' Party of Denmark in 1978, NUON Chea acknowledged that the purported American plan was expected to take place six months after the taking of Phnom Penh. |1595| This timeline undermines any perceived need for urgent evacuation at the time of entering Phnom Penh on 17 April 1975. Nor does it correspond with the announcements that the evacuation of Phnom-Penh would be temporary and limited to three days.

530. The testimony of SUM Chea, a Khmer Rouge soldier involved in evacuating the population from Phnom Penh, further undermines the Defence's claim that the leadership believed there was an immediate necessity for evacuation. The Chamber recalls that evacuees were told they were being evacuated in order to protect them against further anticipated aerial bombardments by the United States of America, as well as for public safety as Angkar needed to 'sweep' or 'clean' the remaining enemies from the city. |1596| Tellingly, SUM Chea testified that his division was instructed to deceive Phnom Penh's residents by telling them that they needed to evacuate because fighting would erupt, they would be bombed and everyone would die. |1597| This is a clear indication that the Khmer Rouge used the idea of American bombing as a pretext for its actions. The NUON Chea Defence accepts that no bombs fell on Phnom Penh after 17 April 1975. |1598|

531. Having guarded the April 1975 meeting where CPK leaders discussed the plan to evacuate Phnom Penh, PHY Phuon confirmed that the meeting's participants considered that it would be difficult to control the people in Phnom Penh if they were not evacuated from the city, as the CPK's prior experiences showed that provincial towns that had been liberated were evacuated in order to make it easier for the cadres to manage them. |1599| As subsequently acknowledged, by evacuating Phnom Penh, the Khmer Rouge smashed the Americans' "dark maneuvers and ... criminal plans"; after taking control on 17 April 1975 the Khmer Rouge extolled that "none were left to annoy us" and "the imperialists had no forces to attack our people from the inside." |1600|

532. Indeed, three months after the evacuation operation, the CPK leadership reasoned that had the population of Phnom Penh not been evacuated

    the enemy might have attacked and pounced on us from behind and smashed our revolutionary forces to pieces; or, at least, the enemy would have been able to burrow inside our revolutionary stance, cause chaos in the revolutionary ranks, break up the Party's discipline and solidarity making the revolutionary stance fade away. |1601|

533. Further, in 1977 POL Pot confirmed that "[w]e had resolved to evacuate the towns as early as February 1975, because it would otherwise have been impossible to smash the spies, saboteurs and trouble-makers." |1602|

534. Having regard to the early arrival of the CPK leadership in Phnom Penh after the evacuation, NUON Chea's speech to the Communist Workers' Party of Denmark in 1978 and the testimony of SUM Chea, the Chamber is not satisfied that the leadership believed that the claimed threat existed at the time. The Chamber therefore concludes that the decision to evacuate was not motivated by a desire to protect the people of Phnom Penh from U.S. bombing. Rather, the only reasonable conclusion is that the leadership decided to transfer the population of Phnom Penh, based in part on its earlier practices and experience of evacuating other areas, |1603| and for military, economic and ideological reasons, to allow the leadership better control of the people and to prevent enemies from destabilising CPK forces.

10.3.2. Food Shortages and Conditions in Phnom Penh on 17 April 1975

535. The NUON Chea Defence submitted that upon entering Phnom Penh, the Khmer Rouge found it on the verge of exhausting its food stocks, with only 6 days' worth of rice left in the capital. |1604| The NUON Chea Defence submitted accordingly that the food crisis created the urgent need for the evacuation, although it conceded that the city's population would have been evacuated and moved into cooperatives irrespective of the food crisis. |1605|

536. IENG Sary also referred to the shortage of food, the difficulty of supplying rice to people in the city, and the need to increase agricultural production, while KHIEU Samphan stated that there was no alternative to the policy of evacuating people to cooperatives as there were three million people in Phnom Penh without food. |1606|

537. The Chamber notes that there was an influx of refugees from the countryside into Phnom Penh between 1970 and 1975, that most people experienced severe food shortages and that living conditions in general in Phnom Penh during this period were dire. |1607| Furthermore, after the Khmer Rouge captured the Mekong in February 1975 and prevented provisions from entering the capital, |1608| the food situation in Phnom Penh deteriorated further. |1609|

538. While it is difficult to estimate how much longer existing food stocks in Phnom Penh would have sustained the population around 17 April 1975, |1610| it is clear that the Khmer Rouge forces at the time had control of all transportation routes including the Mekong river and port installations in Kompong Som which could have been used to allow supplies to come in. |1611| In addition, although damaged, Pochentong Airport was functional as evidenced by the fact that; it received several planes from China in May 1975. |1612| Nevertheless, the leadership refused to accept any humanitarian assistance from those it regarded as enemies, applying a stance of 'independence' and mastery decided by the Party. |1613| Although after the fall of Phnom Penh, the Kampuchean authorities, stated that they were willing to accept foreign aid provided it was lent unfettered by conditions, |1614| this did nothing to alleviate conditions immediately after 17 April 1975.

539. Instead, the leadership considered it preferable to expel the city's population with little to no prior planning for the welfare of the evacuees during the journey, rather than to implement a staged evacuation, an option which was raised but rejected. |1615| The contention that the transportation of rice to the city posed difficulties or that a process of identifying residents suitable for first evacuation presented such a logistical feat as to be impossible, |1616| is implausible when contrasted with the alternative option of forcibly relocating the entire population of Phnom Penh with little to no planning for their welfare during the course of their journey, undoubtedly a colossal logistical feat if done properly. In this respect the Chamber agrees with the remarks of Expert Phillip SHORT that, had the CPK chosen to do so, it would be easier to feed a static population rather than millions of people streaming out of the city in all directions. |1617|

540. In view of the admission of the NUON Chea Defence that Phnom Penh would have been evacuated regardless, the implausibility of the claim that it was easier to evacuate the population to the country rather than bring food to the city or progressively stage the evacuation, and for the reasons discussed below, the Chamber does not consider the critical food situation to be the principal reason for the immediate and entire evacuation of the population of Phnom Penh. Furthermore, the Chamber does not accept the submission that NUON Chea and KHIEU Samphan were unprepared for the numbers living in Phnom Penh when it was taken by the Khmer Rouge on 17 April and were therefore forced to support the evacuation of the city in order to feed the population.

10.3.3. Pre-established Plan and Generalised Policy

541. The evacuation of Phnom Penh must be understood in light of a broader CPK policy, adopted at a series of meetings starting in June 1974, which consisted of moving the population of all captured cities and towns to the countryside. Other urban centres endured exactly the same fate as Phnom Penh when they were taken by the Khmer Rouge and it is remarkable that the evacuation of a capital city of the size of Phnom Penh, which was unprecedented, was conducted following the same pattern of conduct. |1618| Yet, the justification of having to protect the population from aerial bombings was limited to the case of Phnom Penh where it was harder to move the population due to its sheer size and status as the capital city. The CPK required an additional impetus to motivate the population to leave in order to ensure the success of its transfer. If fear of U.S. aerial bombings was indeed the reason for the evacuation of Phnom Penh, one would have expected that such rationale would have prevailed throughout Cambodia's urban centres, but no such claim was ever alleged during the evacuation of other cities, including some of strategic importance.

542. The Chamber has found that the evacuation of towns after the Khmer Rouge captured them was an established policy even prior to April 1975. |1619| Moreover, on and after 17 April 1975 people were also displaced from various provincial towns throughout Cambodia. |1620| The evacuation of Phnom Penh was no exception insofar as it was carried out pursuant to a predetermined military, economic and ideological strategy whereby all cities that were captured and 'liberated' were subsequently evacuated. |1621| Indeed, the decision to evacuate Phnom Penh was developed through meetings starting from June 1974, well before the Khmer Rouge took control of Phnom Penh, |1622| and evidence indicates that rural areas were forewarned to prepare for the arrival of evacuees. |1623|

543. Accordingly, the pre-established practice of evacuating cities undermines the Defence claims that the evacuation of Phnom Penh was underpinned by either grave fears of impending American bombing or the need to alleviate critical humanitarian conditions in the capital.

10.3.4. Ideological Values and the Agrarian Revolution

544. NUON Chea and KHIEU Samphan also asserted that people were evacuated in order to build the agricultural foundation that would make Cambodia economically independent. |1624| Contemporaneous issues of the Revolutionary Flag in the months after the capture of Phnom Penh reveal that the transfer of the population of Phnom Penh satisfied and furthered the revolution's ideological class goals insofar as "colonialists and imperialists", i.e., city dwellers, intellectuals, government officials and petty bourgeois, were overthrown, turned into peasants and "were scattered shamefully." |1625| In 1976, the Revolutionary Flag proclaimed "[w]hen we evacuated the people from the cities, we carried out class struggle." |1626| The Chamber agrees with the assessment of François PONCHAUD that the evacuation of Phnom Penh reflected a new concept of society, in which there was no place for the idea of a city. According to the Khmer Rouge, Phnom Penh's history was a product of French colonialism, Chinese commerce and the bureaucracy of the monarchy, followed by the republic which had to be swept away and replaced with an egalitarian rural society in order that man can know "that he is born from a grain of rice!" |1627|

545. Reflecting that the transfer of city dwellers was motivated by multiple considerations, in April 1976, on the occasion of the one year anniversary of the evacuation of Phnom Penh, an article in the Revolutionary Flag stated "even though removing people from the cities to the countryside seemed improper ... this entirely sorted out the nation, ... the people, ... food supplies, ... the economy, ... politics, and ... the military too." |1628|

10.4. Legal Findings

546. The Closing Order charges the Accused with murder, extermination, political persecution and 'other inhumane acts' of (i) attacks against human dignity and (ii) forced transfer, as crimes against humanity for crimes allegedly committed during movement of the population (phase one). |1629| The Chamber has previously concluded that the chapeau requirements of Article 5 have been fulfilled. |1630|

10.4.1. Forced Transfer

547. It has been established that from 17 April 1975 Khmer Rouge soldiers forcibly transferred the population of Phnom Penh, at least two million people, towards the countryside. |1631| The evacuation of Phnom Penh was effected pursuant to the Party's military, economic and ideological policy which had been established over the course of meetings in 1974 and 1975. |1632| In view of these meetings, as well as the massive scale of the evacuation and its coordinated nature, the Chamber finds that the evacuation of Phnom Penh was intentional.

548. The population of Phnom Penh at the time was composed of both permanent residents as well as people from other parts of the country seeking refuge. |1633| Nothing suggests that they were not legally present in Phnom Penh and the Defence does not challenge this. The surrounding circumstances indicate that the transfer was not by choice, even if a portion of Phnom Penh's refugees may have been happy to return to their home villages in view of the poor living conditions in Phnom Penh. In effecting the evacuation, armed Khmer Rouge soldiers deceived the city's population and exploited their fears and trust in their fellow Khmer by telling them they might be bombed, |1634| threatened them with death and actually shot those who did not follow orders immediately, |1635| and lined the roads directing the population to exit Phnom Penh. |1636| Even those who did not experience violence nevertheless felt the orders were not optional. |1637| In the circumstances, the Chamber is satisfied that the Khmer Rouge soldiers employed coercion, threats and fraud, and that the evacuees did not have a genuine choice of whether to remain in Phnom Penh or leave on 17 April 1975.

549. As to whether permissible grounds existed under international law for evacuating Phnom Penh, the Chamber finds that the population was not evacuated for imperative military reasons. The justification that the evacuation was intended to protect the population from American bombing was a clear deception. |1638| Moreover, the ongoing conflict with the Khmer Republic regime had concluded and the soldiers of the Khmer Republic countrywide had surrendered. |1639| The NUON Chea Defence also expressly reject that the evacuation had humanitarian objectives, a position at odds with its claim that the evacuation was motivated by the need to protect the population from U.S. bombing. |1640| Rather, the NUON Chea and KHIEU Sampan Defence contend that the evacuation was a legitimate resettlement policy aiming to regenerate the economy and hence alleviate humanitarian conditions in Phnom Penh. |1641| Economic policy is not one of the grounds recognised under international law that justifies forced transfer of a population. Further, to the extent that this argument contends the evacuation was intended to improve the food situation, the Chamber has already rejected the purported reasons underpinning this explanation. |1642| Consequently, the Chamber is not satisfied that any of the exceptions to the general prohibition of forcible population displacements apply to the actions of the Khmer Rouge soldiers in evacuating Phnom Penh, and thus finds that the evacuation was not justified by necessity.

550. Even if the Chamber were to accept that the humanitarian or economic situation could justify evacuation, the evacuation did not respect the requirement of proportionality. |1643| First, despite promises that the evacuation was temporary, several witnesses were told they would never return. |1644| In fact, most evacuees who survived did not return to Phnom Penh until after the fall of the regime in 1979. |1645| Instead, evacuees were continuously relocated in the ensuing months and years according to the country's production needs. |1646| Thus, the leadership failed to transfer evacuees back to their homes as soon as it became clear that there was neither a military nor humanitarian threat that might justify the continuation of such measures. Further, although there was some evidence that food, shelter, medicine and transport were provided during the evacuation journey, such instances were sporadic and clearly insufficient given the volume of evacuees leaving Phnom Penh. |1647| Lastly, many evacuees were made to evacuate without all of their family members, were made to abandon weak family members along the way, or were separated from family members at checkpoints during the journey. |1648|

551. Consequently, the Chamber finds that the evacuation of Phnom Penh was not justified on the basis of civilian security or military necessity and, in any event, was not proportional.

552. The Chamber finds that the evacuation of Phnom Penh itself caused the victims long-lasting and serious bodily and mental harm, |1649| the effects of which were compounded by the coercive and threatening circumstances in which the evacuation was effected |1650| and the inhumane conditions to which the evacuees were subjected during the subsequent journey. |1651| These acts were intentional, inhumane and rise to the level of severity of the other crimes against humanity enumerated in the ECCC Law. Accordingly, the Chamber finds that Khmer Rouge officials and soldiers committed the crime against humanity of other inhumane acts through forced transfer of the population.

10.4.2. Murder

553. Those high-ranking military and civilian officials who had been publicly earmarked for certain death prior to the taking of Phnom Penh and who had not fled were killed. |1652| Furthermore, numerous victims who were identified as soldiers or civilian officials of the Khmer Republic during the course of the evacuation were taken aside for execution elsewhere. |1653| Lastly, numerous victims who refused to leave their homes in Phnom Penh, as well as those who did not immediately follow the instructions of Khmer Rouge soldiers during the march out of the city were shot and killed on the spot. |1654| There was also substantial evidence of the individual killing of victims both in Phnom Penh and during the course of the evacuation for no discernible reason. |1655| Given that the foregoing executions often occurred at point blank range, or pursuant to a concerted effort to identify the victims before transferring them elsewhere for execution, the Chamber is satisfied that the perpetrators acted with intent to kill these victims.

554. Having considered the evidence as to the individual circumstances in which these deaths occurred, the Chamber finds that the victims included both ordinary civilians and civil servants of the Khmer Republic, as well as former soldiers of the Khmer Republic who were either detained, placed hors de combat or were otherwise no longer taking an active part in hostilities at the time they were killed, and that the perpetrators were aware of this. As concerns the killings of Khmer Republic soldiers that took place during the second search of the city, |1656| these arose in a context that may reasonably appear to be a combat situation. The evidence is insufficient to establish that those Khmer Republic soldiers were hors de combat or otherwise not taking part in active hostilities when they were killed. Consequently, the Chamber will not consider these killings in relation to this finding.

555. As concerns those Khmer Republic officials who were identified and subsequently disappeared at checkpoints, but whose fate was unknown, |1657| the evidence does not establish that the only reasonable inference is that they were all killed insofar as there is evidence that numerous Khmer Republic soldiers and civilian officials were also sent to villages for work or re-education. |1658|

556. Innumerable victims also died along the way from a range of illnesses as a result of the failure by Khmer Rouge soldiers to provide the evacuees with food, water, medical assistance and shelter or hygiene facilities. |1659| As to the mens rea of the perpetrators concerning the victims' death, the Chamber is satisfied that when Khmer Rouge soldiers acted they could foresee the possibility of their acts causing death, nonetheless they deliberately persisted in their conduct (dolus eventualis) |1660| First, the Chamber recalls that the Khmer Rouge had experience with moving populations from captured to liberated zones prior to April 1975 and some evidence indicates that deaths and starvation had resulted from the conditions experienced while moving these populations. |1661| Although these movements affected up to tens of thousands of people, the evacuation of at least 2 million people from Phnom Penh was incomparable in scale and complexity vis-a-vis the leadership's past experiences. Further, the evacuation of Phnom Penh was the culmination of years of protracted fighting and a long siege. |1662| Its population had experienced ongoing food shortages for an extended period and was thus already seriously weakened by 17 April 1975. |1663| In these circumstances, the population was expelled from the capital with no notice and without adequate supplies, a situation which was exacerbated by the deliberate ruse that they would return within three days and thus need not bring more. |1664| Further aggravating the situation, they were expelled at the hottest time of the year and in the almost complete absence of any aid or assistance.

557. Despite some evidence of preparation prior to the evacuation which anticipated the arrival of Phnom Penh's evacuees in the countryside, |1665| former Khmer Rouge soldiers involved with the evacuation confirmed that during the evacuation their respective units did not help or offer any assistance to those evacuees leaving the city, or receive instructions to do so. |1666| With respect to the patients who were hospitalised, the Khmer Rouge evacuated everyone without exception, including the elderly, the weak, the sick and the injured, |1667| without consideration for the effect that this would have on the individuals. Most notably, there was no plan to assist even the most vulnerable, such as infants, children, the sick and injured, some of whom were only recently operated on, as well as pregnant women, the elderly and the infirm. PHY Phuon stated that details such as how to feed people or to care for the elderly, children, or the sick during the evacuation were not discussed during the April 1975 meeting he guarded. |1668| NUON Chea acknowledged that the leadership did not have time to determine how many hospitals or patients would be affected by the decision to evacuate. |1669|

558. Consequently, the Chamber is satisfied that in expelling the population from Phnom Penh, Khmer Rouge soldiers knew that the evacuation of at least these particularly vulnerable groups in the especially arduous conditions already described by the Chamber would result in their deaths. Accordingly, the Chamber is satisfied that the mens rea for murder has been established.

559. Accordingly, the Chamber finds that the deaths of those victims who were shot and killed during the evacuation of Phnom Penh, as well as those who died due to the conditions and lack of any assistance constitute murder.

10.4.3. Extermination

560. The Chamber has found it established that the deaths of those victims who were shot and killed during the evacuation of Phnom Penh (except those who died while engaged in combat), as well as those who died due to the conditions and lack of any assistance during the course of their journeys to their home villages, constitute murder. |1670| Although it is not possible to determine how many victims resulted from executions as opposed to the severe conditions imposed during the journey, having regard to the totality of the evidence before the Trial Chamber describing the deaths that occurred during the evacuation, the Trial Chamber finds that overall the element of scale required for the crime of extermination is satisfied.

561. Having established that the foregoing murders satisfy the requirement of scale for the crime of extermination, the Chamber now examines the mens rea of the perpetrators. As concerns the killings of those former Khmer Republic officials identified after searches within Phnom Penh, at various checkpoints or in response to radio announcements, the only reasonable conclusion the Chamber can reach on the basis of the evidence is that there was a deliberate, organised, large-scale operation to kill former officials of the Khmer Republic, even if not all such officials shared this fate. In view of this large-scale operation, the Chamber is satisfied that Khmer Rouge soldiers intended to kill Khmer Republic officials on a massive-scale, and through these acts, committed extermination.

562. As concerns those victims who died as a result of the severe conditions imposed during the journey, the Chamber has found that Khmer Rouge soldiers acted with dolus eventualis in their regard. |1671| Adopting the same reasoning already outlined with respect to the perpetrators' mens rea for the crime of murder, and having regard to the scale of the evacuation operation and that it targeted the total population of Phnom Penh at the time, at least 2 million people, the Chamber is also satisfied that in carrying out the evacuation of Phnom Penh, the Khmer Rouge soldiers intended to create conditions of life that lead to death in the reasonable knowledge that such act or omission was likely to cause the death of a large number of persons. Accordingly, through these acts, the Chamber finds they committed extermination.

10.4.4. Other Inhumane Acts of Attacks Against Human Dignity

563. At least two million people in Phnom Penh were forcibly evicted from their houses by Khmer Rouge soldiers at gunpoint with almost no prior warning and in terrifying and violent circumstances. |1672| They were forced to abandon their houses and property under the ruse that they would return within three days. |1673| The majority witnessed beatings, shootings and killings and saw countless dead bodies lying along the roads as they exited Phnom Penh. |1674| Some people even slept next to dead bodies. |1675|

564. The evacuees' journeys were marked by the almost complete absence of food, water, medical care, shelter and hygiene facilities for periods ranging from several days to several weeks. |1676| Coupled with the peak of the hot season, and duped into believing they would only be gone for several days, many left unprepared and were forced to improvise food and accommodation in the face of a grim situation. |1677| In particular, the sick, the injured, the elderly, the pregnant and the young suffered, and countless victims succumbed to the unforgiving conditions throughout the journey. People were also forced to bury their dead children in forests or to abandon their elderly or sick family members by the roadside to a fate of certain death. |1678| Further, many people still do not know the fate of those family members who were taken away. |1679|

565. The Chamber thus finds that the violent circumstances surrounding the evacuation of the city, the severity of the conditions experienced by the evacuees, intensified by the length of their journeys to their home villages, and their ill-treatment by Khmer Rouge soldiers throughout constituted serious attacks against human dignity and caused the victims serious bodily and mental harm. |1680| Further, in light of the pre-established and systematic nature of the operation, its scale and its ongoing duration, the Chamber is also satisfied these acts were intentional. The Chamber is satisfied that the foregoing acts rise to the level of severity of the other crimes against humanity enumerated in Article 5 of the ECCC Law. Accordingly, the Chamber finds that Khmer Rouge officials and soldiers committed the crime against humanity of other inhumane acts through attacks against human dignity.

10.4.5. Political Persecution

566. The particular acts amounting to persecution must be expressly charged. |1681| In determining whether this requirement has been met, the Chamber will have regard to all factual and legal findings in those portions of the Closing Order included within the scope of Case 002/01 and relevant to movement of the population (phase one). |1682|

567. According to the Closing Order, the Khmer Rouge committed persecution in multiple ways: against high-ranking military and civilian officials insofar as they were automatically excluded from the goal of building socialism; against low-ranking officers who were arrested and often executed; and against 'new people' or '17 April people' insofar as they were subjected to harsher treatment with a view to reeducation. During population movements, real or perceived enemies of the CPK were subjected to harsher treatment and living conditions with a view to re-educating them or identifying enemies amongst the targeted groups. |1683|

568. Based on a complete reading of the Closing Order, the Chamber considers that the various acts charged as political persecution were implemented through a number of crimes. The exclusion of high-ranking Khmer Republic officials was effected by murder. |1684| Further, the arrest |1685| and execution of low-ranking Khmer Republic officials was effected by murder and/or extermination. |1686| Last, the harsher treatment of 'New People' characterised as re-education was effected through forced transfer |1687| and the ensuing acts of murder and/or extermination |1688| or attacks against human dignity. |1689|

569. The Khmer Rouge identified several groups it regarded as enemies or as obstacles to the pursuit of its political agenda of socialist reform, in particular: high-ranking military and civilian officials, among them the seven super-traitors whom they had publicly identified by radio, announcing it was necessary to kill them; those who held positions with the former Khmer Republic, both soldiers and civil servants; and people who lived in the city who became known as '17 April people' or 'new people'. As these groups were identified pursuant to criteria defined by the CPK leadership, and the backgrounds of each were verifiable, as demonstrated by checkpoints and questioning of the latter two groups along the way, the Chamber is satisfied that each constitutes a sufficiently discernible group.

570. The Chamber has found that the killing of high-ranking military and civilian officials who had been publicly ear-marked for certain death prior to the taking of Phnom Penh constitutes the crime of murder. |1690| The Chamber has also found that the killing of other Khmer Republic officers on or after the taking of Phnom Penh constitutes the crimes of murder and extermination (except those who were killed while engaged in combat). |1691| Further, the Chamber has found that the killings of civilians living in Phnom Penh, their forced evacuation and the treatment to which they were subjected in connection with the evacuation of Phnom Penh (movement of the population (phase one)) amounted to the crimes against humanity of murder, extermination and other inhumane acts comprising forced transfers and attacks against human dignity. The Chamber also recalls that after entering Phnom Penh Khmer Rouge soldiers arrested many Khmer Republic soldiers, even after the Khmer Republic had announced its surrender; Khmer Republic soldiers were subsequently either imprisoned or simply disappeared with no explanation to family members, often to this date. |1692| The Chamber will now consider whether the foregoing underlying acts were discriminatory in fact and deliberately perpetrated with the intent to discriminate against these groups such as to also constitute political persecution.

571. Considering that Khmer Rouge soldiers actively sought out members of the fallen Khmer Republic throughout Phnom Penh, at checkpoints, by means of radio announcements duping them into identifying themselves, before arresting or executing them, and that they were considered the enemy, |1693| the Chamber is satisfied that the arrest and murders of former Khmer Republic officials were committed with the intent to discriminate on political grounds. Considering also the attitudes of the Khmer Rouge and its soldiers towards city people, evidence of criticisms that they were capitalists levelled in their regard, and that evacuees from Phnom Penh were labelled '17 April people' or 'new people' and treated with suspicion in the base villages, |1694| the Chamber is satisfied that Khmer Rouge soldiers intended to discriminate against the evacuated city people on political grounds. Based on this, the Chamber finds that Khmer Rouge soldiers acted with the requisite discriminatory intent at the time of evacuating the population of Phnom Penh.

572. The foregoing acts were also discriminatory in fact as the victims were identified at checkpoints in the course of evacuation as both high-ranking and lower Khmer Republic officials (civilian and military), as well as city people. Additionally, these identifiable groups were targeted by the Khmer Rouge on a discriminatory basis, namely that they might harbour individuals who disagreed with the CPK's ideology. The Chamber therefore rejects the submission made by the NUON Chea Defence and the KHIEU Samphan Defence that, because the Khmer Rouge's ultimate goal was to treat people equally, there was no differential treatment and therefore no discrimination or persecution. |1695| For the same reason, the Chamber also rejects the submission made by the NUON Chea Defence and the KHIEU Samphan Defence that the evacuation of Phnom Penh was indiscriminate such that it should not be held to amount to persecution. |1696|

573. Acts committed against these groups variously infringed upon and violated fundamental rights and freedoms pertaining to movement, |1697| property, |1698| family, |1699| life, |1700| personal dignity, |1701| liberty and security, |1702| freedom from arbitrary or unlawful arrest, |1703| a fair and public trial and equality before the law |1704| as enshrined in customary international law.

574. The acts charged as persecution include independent crimes against humanity as well as acts which, on their own, do not necessarily amount to crimes (in particular, arrests). Looking at these acts together and considering the context in which they were committed, the Chamber is satisfied that they cumulatively rise to the requisite level of severity such as to constitute persecution. Accordingly, the Chamber is satisfied that the instances of murder, extermination, arrests and the other inhumane acts of forced transfer and attacks against human dignity variously committed against former Khmer Republic officials and city people constituted political persecution.

11. MOVEMENT OF THE POPULATION (PHASE TWO)

575. According to the Closing Order, between around September 1975 and 1977, thousands of people were moved from the Central (old North), Southwest, West and East Zones (Kandal, Kampong Thom, Takeo, Kampong Speu, Kampong Chhnang and Kampong Cham |1705| Provinces) to Sector 103 (Preah Vihear), Sector 106 (Siem Reap), the Northwest Zone (Battambang and Pursat Provinces, including the modern-day Provinces of Pailin and Banteay Meanchey |1706|) and the Central (old North) Zone (including parts of Kampong Thom and Kampong Cham Provinces). |1707| The Closing Order further alleges that people were also moved from or within the East Zone (Prey Veng and Svay Rieng), to Kratie (Sector 505), within the Central (old North) Zone and within Battambang Province. |1708| According to the Closing Order, the main reason for the decision to move people lay in the effort to focus labour resources on agriculture and infrastructure in those regions, particularly the North and Northwest Zones, which were frequently described as having fertile land and more available food. |1709| Additionally, the Closing Order alleges that 'New People' had to be moved in order for them to be transformed into peasants. |1710| Finally, the Closing Order alleges that 'New People' were moved from the border between the East Zone and Vietnam after war broke out in 1975 or 1976. |1711|

11.1. Overview

576. After 17 April 1975, defending and building the country became the main Party line. |1712| The Party focused on building and expanding cooperatives to advance both the class struggle - the "dictatorship of the proletariat" - and agricultural production, thereby securing the socialist revolution. |1713| In order to build and expand the cooperatives, people had to be moved. The Party leadership believed that population movements allowed it to overcome challenges in building and defending the country and re-organising the people, economy, politics and military. |1714|

577. The Party policy concerning population movements was one of the topics frequently addressed during propaganda campaigns, education sessions and in Party publications to ensure strict and effective implementation. Every three to six months, the Party leadership published its policy, plans and directions for members in the Revolutionary Flag and Revolutionary Youth magazines. |1715| Further, Party leaders and representatives, including POL Pot and NUON Chea, travelled throughout the country, disseminating the Party line to zone and sector secretaries, assemblies and committees. |1716| There were also meetings of district and regional secretaries and representatives in Phnom Penh concerning the need to build and defend the country. |1717| On the local level, regular meetings, re-education sessions and self-criticism exercises ensured that the Party line was further disseminated to the cooperatives, cadres and people. |1718| Thus even the ordinary Khmer Rouge soldiers knew or heard about the evacuation plans between mid-1975 and 1977. |1719|

578. Additionally, the Party controlled the means and modes of transportation necessary to effectuate the population movements. The Party Centre, zone, sector and district committees had to authorise transfers or movement in their respective areas. |1720| The Phnom Penh - Mongkolborei Railway, which served as a key means of population movement between September 1975 and 1977, was under the management of the Train Unit in Phnom Penh. |1721| Khmer Rouge soldiers were in charge of railway work and reported only to Phnom Penh. |1722| In October 1975, the Standing Committee assigned VORN Vet responsibility for "industry, railways and fishing". |1723| From April 1976, MEY Prang was Minister of Communications and Transportation. In this role, among other duties, he was in charge of the Train Unit. |1724| The Communications and Transportation Committee, as well as the Commerce Committee which as early as September 1975 was also tasked with arranging population movements, |1725| fell under the Ministry of Economics, headed by VORN Vet. |1726|

579. Overall, the exact number of people re-located between September 1975 and December 1977 was not proven by the evidence and given the specific circumstances will remain unknown. Although official DK records concerning this movement often indicate how many were planned for displacement, as well as how many were working at a given location or work-site, there is little official information concerning how many were actually moved. The Chamber has nevertheless attempted to identify the minimum number of people displaced during movement of the population (phase two) on the evidence available. In so doing, the Chamber emphasises that the actual number of those displaced likely far exceeds the minimal estimate it has reached.

580. In relation to inter-regional movements from south to north, the Chamber notes that in August 1975 the Standing Committee planned to send between 400,000 and 500,000 to Battambang and Pursat Provinces (Northwest Zone). |1727| An additional 20,000 were to be sent to Preah Vihear Province (Sector 103). |1728| Between September 1975 and early 1977, victim accounts indicate that, at different stages of movement, hundreds, thousands and tens of thousands were displaced from individual villages, |1729| thousands waited at various assembly points, |1730| and hundreds and thousands were then transported in individual trucks, |1731| boats |1732| and trains. |1733| Indeed, the East Zone sent a report to POL Pot, on 30 November 1975, concerning the transfer of 50,000 people to the Central (old North) Zone. |1734| In January 1976, the Far Eastern Economic Review reported that, in the last two months of 1975, 300,000 people were moved to Battambang Province. |1735| In June 1977, the Sector 5 Committee in Battambang (Northwest Zone) reported that the majority of the population in that Sector were 'New People'. In two out of four districts in Sector 5, there were nearly 120,000 people from Phnom Penh. |1736| Finally, contemporary DK-era estimates indicate that between 300,000 and 400,000 were moved during phase two. |1737| On the basis of this incomplete record, the Chamber is satisfied that movements from the southern to northern regions of Cambodia were conducted on a massive scale. At a bare minimum, at least 300,000 to 400,000 people were displaced.

581. In relation to intra-regional movements in the northern, southern and central regions, any indicative record or estimate as to the total number moved is notably absent. However, the Chamber notes that the Party leadership intended that each cooperative would have 1,000 families and warned that, until that was achieved, population movements would be on-going based on labour requirements. |1738| Civil Parties indicated that, during their transfers to and from cooperatives and worksites, they saw hundreds, thousands and tens of thousands of people displaced. |1739| In 1977, KHIEU Samphan reported that irrigation projects were being implemented nationwide with between 10,000 and 30,000 workers at each site. |1740| For example, throughout 1977, between 8,000 and 20,000 people were transferred to work at the 1 January Dam Work-site; |1741| 20,000 people, some in mobile units, built the 17 January Dam; and 23,000 people constructed the 5 January and 6 January Dams. |1742| The Chamber is therefore satisfied that the intra-regional movements between around September 1975 and December 1977 were also on a massive scale. However, without further evidence as to the percentage of those moved to various cooperatives and work-sites, the Chamber can only make a very conservative estimate that a minimum of 30,000 were moved within regions during movement of the population (phase two). The Chamber again emphasises that the likely number moved far exceeds this estimate considering the geographical and temporal scope of these movements, the number of cooperatives and work-sites that existed during the DK era, and the number of workers at each cooperative and work-site.

582. It was later acknowledged in Party publications that the mobilisation of workers created "hardship" during and after movements. |1743| After being moved, people were forced to re-socialise and re-adapt to a completely new environment, and became disoriented. |1744| Children, whose normal routine was completely disrupted, lacked the ability to deal with the traumatic sights they experienced during the evacuations and with constant re-location. They found it more difficult to interact with others and to see a future. Those who lost parents suffered from long-term grief, which, for some, meant harsher treatment of their own children. |1745| Parents who lost children endured ongoing suffering. Further, 'New People' experienced a loss of identity and stigmatisation. |1746|

583. Below, the Chamber addresses the movements of the population identified in the Closing Order as movement of the population (phase two) according to the reasons and the geographical destinations alleged: the redistribution of labour from the southern provinces to the northern provinces (Section 11.2); intra-regional movements of a seasonal workforce (Section 11.3); intra-regional movements for purposes of the class struggle (Section 11.4); and movements away from the border with Vietnam (Section 11.5). The Chamber notes that it has considered in this section movements to, from and within locations not specified in the Closing Order, insofar as these movements provide context and evidence of a pattern of conduct. However, the Chamber will limit its legal findings on the crimes charged to those locations specifically identified in the Closing Order.

11.2. Transfers from South to North

584. Beginning in mid-April 1975, at least two million people were re-located from the cities to the countryside. |1747| When the rice transplanting season began in July and August 1975, their re-location was still on-going. |1748| Thus it was not possible to increase production that year. |1749| By the end of 1975, however, the Party leadership recognised that food and resources were nearly used up and therefore considered that man-power had to be re-organised. |1750|

585. Prior to 17 April 1975, Battambang Province had the best harvests in the country, regularly producing a surplus. |1751| In August 1975, the Standing Committee visited Battambang and Pursat Provinces (Northwest Zone) and observed that the 'New People' previously re-located there were experiencing food shortages. |1752| It also observed a shortage of water in Pursat Province and flooding in Battambang Province. |1753| Nevertheless, the Standing Committee considered that Battambang and Pursat Provinces (Northwest Zone) had the best paddies, fertile land, geography and therefore must receive more people. |1754|

586. The Party leadership considered that one million workers, the population of Battambang and Pursat Provinces (Northwest Zone) in August 1975, was insufficient to achieve its objectives: it was deemed necessary to increase the labour force by 400,000 to 500,000 people. |1755| This was considered a reasonable number to begin with, as labour was still needed elsewhere. |1756| For example, people were needed in Kampong Thom (Central (old North) Zone) due to labour shortages. |1757| In Preah Vihear (Sector 103), where BOU Phat alias Hang was Secretary until at least 1978, |1758| manpower was required to build dikes and clear land. |1759| Sector 103 requested 50,000 more people, but only 20,000 were sent at first. |1760|

587. The less fertile areas, in particular the Southwest, West and the East Zones, were chosen to provide the manpower for the Sector 103, the Northwest and Central (old North) Zones. |1761| The Party leadership instructed that only those people necessary for farming these areas would remain, and the rest would be moved. |1762| The Party leadership intended that the especially productive zones would produce food and capital for other areas not favoured with fertile land. |1763|

588. Beginning in September 1975 and continuing into early 1977, hundreds of thousands of people in the Southwest, West and East Zones (including Kampong Speu, |1764| Kandal, |1765| Takeo, |1766| Prey Veng, |1767| Svay Rieng, |1768| and Kampong Cham |1769| Provinces) were displaced in a "second wave" of evacuations. |1770| In some locations, exclusively 'New People' were displaced, |1771| while in others both 'Old People' and 'New People' were transferred. |1772| Khmer Rouge officials, |1773| including village chiefs |1774| and Angkar, |1775| ordered people to depart or face the consequences, such as detention, re-education or future re-location. |1776| Some village chiefs and Khmer Rouge officials asked for volunteers. |1777|

589. People were given a variety of reasons for their re-location. The majority were told or believed that food in their current locations in the Southwest, West and East Zones was insufficient to feed the newcomers, |1778| there was plenty of food in Battambang |1779| and Pursat |1780| Provinces, the land was more fertile in Battambang, |1781| and/or there was insufficient manpower in Battambang and Pursat. |1782| Others were told that they were being returned to their homes. |1783| As a result, some were happy and willing to leave. |1784| Other people received no explanation. |1785| Others considered that the proximity of the Thai border would facilitate their escape from the Khmer Rouge. |1786| Many of those who remained behind received no further information of those displaced. |1787|

590. After being displaced from their villages, people were evacuated in three stages: first, they were gathered at assembly points (Section 11.2.1); then they were transported by train or truck to Battambang and Pursat Provinces (Northwest Zone), Kampong Thom (Central (old North) Zone) and Preah Vihear (Sector 103) (Section 11.2.2); and finally, they were transported to assigned cooperatives or work-sites (Section 11.2.3). |1788|

11.2.1. Stage 1: Transfer to Assembly Points

591. People were transported to assembly points by truck, boat, ox cart and on foot. The conditions of their transfer depended on the particular mode of transportation. Trucks to assembly points, including at Phnom Penh and Kampong Chhnang (West Zone), were crowded. |1789| People were constantly monitored, had no water and insufficient food, and were not allowed to carry any belongings. |1790| People were sick on the trucks, but received no assistance. |1791| Upon arrival at various assembly points, the trucks stopped and people waited outdoors without sufficient food or water for up to a few days. |1792|

592. Some people, including the sick and injured, were evicted on foot from their villages and had to walk to train stations or markets for onward transport. |1793| Civil Party KONG Vach carried a baby in one arm, held the hands of her other children and carried a bag of clothes on her back. |1794| They had no food to eat. During a brief stop at Samraong Yaong market, KONG Vach's son, who had diarrhoea and swollen limbs, died. Khmer Rouge soldiers instructed KONG Vach to leave his body with them; she did not know what they did with it. |1795| KONG Vach and others were then loaded onto trucks bound for Battambang (Northwest Zone). |1796|

593. Other people were moved by ox cart to Angk Roka Pagoda on National Road No. 3. |1797| Thousands of travellers from various locations were assembled at Angk Roka. |1798| A rumour spread that NORODOM Sihanouk was returning and needed technicians, doctors, military officers and intellectuals to re-build the country. |1799| About 40 people at Angk Roka volunteered to work for the new government and were sent to Phnom Penh. |1800| They were not heard from again and later there was a rumour that they had been killed. |1801| The remaining people waited at Angk Roka for about two weeks. |1802|

594. Still other people were transferred by ox cart or on foot, under guard, to the Mekong riverside. |1803| After arriving at the river, some waited in poor conditions for as long as a week under armed guard. |1804| Many people were sick. |1805| They were then transported by boat, under armed guard, |1806| in the direction of Phnom Penh or across the Mekong to Kampong Thom (Central (old North) Zone). |1807| Some boats were not over-crowded and there was room to lie down. |1808| Others were covered and the people were transported in complete darkness. |1809| The Khmer Rouge did not distribute food. |1810| Some children on the boat cried because they were hungry and Khmer Rouge soldiers threatened to throw them overboard. |1811| Many people on board were ill, but the Khmer Rouge guards did not care for them. |1812| Nor was assistance provided when boats capsized in strong currents and some people drowned. |1813|

595. Some people were unloaded from boats in Kandal Province (Southwest Zone). |1814| Other boats continued to Phnom Penh where they were unloaded in front of the Royal Palace and taken to the train station where they waited for several hours. |1815| Still other boats continued past Phnom Penh. |1816| When Civil Party CHAN Socheat, her family and hundreds of other families passed the Royal Palace, one man shouted, "Bravo! Now we have arrived in Phnom Penh!" |1817| The Khmer Rouge soldiers called him outside and shot him. |1818| The ships continued past Phnom Penh and arrived in Kampong Chhnang (West Zone) within a day of departure. |1819| Upon arrival, some were given food and waited with other people for onward transport. |1820| Others, after disembarking from boats, were transported by truck to train stations where they waited for as long as a week under armed guard and were given rations of un-cooked rice. |1821|

11.2.2. Stage 2: Transfer to the Northwest and Central (old North) Zones and Sector 103

596. Khmer Rouge soldiers and officials ordered |1822| thousands of people who had been assembled at train stations in various locations, including Phnom Penh and Kampong Chhnang (West Zone), to board trains to Battambang and Pursat Provinces (Northwest Zone). |1823| There was a train each week, sometimes two per week. |1824| There were two soldiers in each train wagon, and three or four soldiers in the locomotive with the conductor. |1825| The doors of each train wagon were barred with wooden poles. |1826| The same soldiers were on the train each time from Phnom Penh and then on the return journey. |1827| The trains returned to Phnom Penh empty, but for crew members and soldiers. |1828|

597. Each train had 20-25 wagons. |1829| Each wagon had the capacity to hold as many as 40-50 people, but usually there were 20-25 people in each wagon. |1830| Some were not crowded: people could sit on the floor or remain standing. |1831| Others were over-crowded with men, women, children and the elderly. |1832| People on the trains had insufficient food and were not allowed to carry belongings. |1833| Khmer Rouge soldiers provided no assistance to sick or vulnerable people. |1834| People had to ask the soldiers to stop the train to relieve themselves. |1835| People died of exhaustion or starvation during the journey. |1836| Civil Party PECH Srey Phal recounted that Khmer Rouge soldiers threw the bodies of those who died off the train without stopping. |1837| One Civil Party, DY Roeun, spoke of children looking for their parents on the train crying continuously and saw Khmer Rouge soldiers throw some out of the window. |1838| Corpses were later seen along the tracks. |1839| Witness SOKH Chhin, a railway repairman, buried decomposing bodies found along the tracks. The area was quiet with few living in the vicinity. For this reason, he concluded that the bodies he found were people who had been on the trains. |1840|

598. In addition to trains, military and civilian trucks also transported thousands of civilians from assembly points throughout southern Cambodia to Battambang and Pursat Provinces (Northwest Zone), |1841| Kampong Thom (Central (old North) Zone) |1842| and Preah Vihear (Sector 103). |1843| They were guarded and driven by armed Khmer Rouge soldiers. |1844| Khmer Rouge soldiers shot at those who tried to escape. |1845| The trucks were crowded, conditions in the trucks were poor, |1846| and those on board had to relieve themselves on the truck. |1847| Many were sick and had diarrhoea. |1848| Due to exhaustion, starvation or illness, some people died. |1849|

599. After a few days, sometimes as long as a week, the trains and trucks arrived in Battambang and Pursat (Northwest Zone), |1850| Kampong Thom (Central (old North) Zone) |1851| and Preah Vihear (Sector 103). |1852| The location in which people were unloaded was often not the place they were told they would be transferred to. |1853|

11.2.3. Stage 3: Assignment to Work-sites and Cooperatives

600. After being forced to disembark from trucks and trains, people were questioned about their past and they were instructed to wait, some under armed guard. |1854| Many, already under-nourished, |1855| were provided with no water, food, hygiene facilities, hammocks or mosquito nets. |1856| Some waited for a few days or up to a week under these conditions. |1857| At other locations, ox carts driven by Khmer Rouge cadres awaited the people when they arrived. |1858|

601. Khmer Rouge soldiers and officials divided the people according to the locations where they would be sent, sometimes separating families, |1859| while some were permitted to choose the commune to which they would be taken. |1860| The Khmer Rouge said they were taking some people to new cooperatives; these people disappeared. |1861| Others were transported under armed guard on foot, by truck or by ox cart to cooperatives and work-sites in Pursat Province (Northwest Zone), |1862| Battambang Province (Northwest Zone); |1863| Preah Vihear Province (Sector 103); |1864| and Kampong Thom Province (Central (old North) Zone). |1865| The cooperatives were not equipped to handle the volume of people arriving, particularly new cooperatives in the jungle. |1866| Upon arrival, belongings were confiscated and some people had to build their own shelter. |1867|

11.3. Production Targets: Transfers within the Northern, Southern and Central Regions

602. In addition to the large-scale re-distribution of manpower from the overcrowded southern provinces to Battambang and Pursat (Northwest Zone), Kampong Thom (Central (old North) Zone) and Preah Vihear (Sector 103), people were also allocated to labour within regions, depending on the season. |1868| The Party leadership believed that this re-organisation would address shortages of water and food and in turn, benefit the livelihood of the people. |1869| By advancing agricultural production and increasing the rice crop, the Party leadership considered that it could acquire the capital necessary to purchase the livestock, tools, machinery, technology and supplies necessary for the country to evolve into a modern agricultural economy within 10-15 years, and later an industrial state. |1870| However, in the meantime, as manpower and land were the only capital available, |1871| the former had to be allocated strategically. |1872|

603. There was a mobile unit in each cooperative designed for regular movement; such units were always on stand-by. |1873| The Party leadership considered that only when cooperatives were expanded from 10 or 20 families to 1,000 families, and thus able to provide manpower for all activities, would it be possible to avoid further population movements. |1874|

11.3.1. The 1976 Goal: Three Tonnes per Hectare

604. Between September and October 1975, the Standing Committee met to discuss policies to defend and build the country. |1875| In November 1975, the First Nationwide Party Economic Congress set out a plan that would transform the country's degraded agricultural system into a modern agricultural system in 10-15 years. |1876| The Party leadership determined that it would expand cooperatives; build dikes, canals and dams; and focus on the most fertile land to achieve yields of three tonnes per hectare by 1976. |1877| The minutes of a meeting held on 8 March 1976, at which KHIEU Samphan and NUON Chea were present, |1878| indicate that 30 percent of the 1976 goal had already been reached and attributed this success to careful and detailed planning. |1879| By May 1976, the rice fields had been ploughed at least once, and sowing and transplanting had begun. |1880|

605. The Party leadership began to realise, however, that they faced difficulties in reaching the goal of three tonnes per hectare by 1976. After being appointed Minister of Social Affairs in early 1976, IENG Thirith travelled to observe the living conditions of the people throughout Cambodia. She reported back to the leaders (including the "Prime Minister") that people in Battambang and Pursat Provinces (Northwest Zone) were ill, had to work far from their villages and had no homes. |1881| Similar living conditions were also reported in Preah Vihear (Sector 103) where 40 percent of the work force was lost due to illness. |1882| At various construction sites, it was reported that progress, without the use of machinery or tools, was slow. |1883| The Ministry of Commerce reported that, in early 1976, some labour forces were not allocated strategically, for example those brought to dig ponds, raise tortoises and grow crops on infertile land. |1884|

606. In June 1976, at a Health and Social Affairs meeting at which KHIEU Samphan was present, |1885| the Party leadership reiterated that unless three tonnes per hectare were achieved, the Party would not be able to feed the people or defend the country. |1886| The same month, a Party representative instructed a West Zone assembly to allocate manpower strategically on a countrywide basis according to need. |1887| In July 1976, the Commerce Ministry reported that it had contributed to national protection and development in providing manpower for agricultural production. |1888|

607. Beginning in late 1975 and throughout 1976, a seasonal workforce consisting of tens of thousands of people was displaced within and between Battambang and Pursat Provinces (Northwest Zone); |1889| within and between Kampot, |1890| Takeo |1891| and Prey Veng, |1892| Kandal, |1893| Svay Rieng, |1894| and Kampong Speu |1895| Provinces (Southwest, West and East Zones); and to Kratie Province (Sector 5 05). |1896| YONG Yem was Secretary of Sector 505 from 1971 to 1976. Between 1976 and 1978, and BORN Nan alias Yi was Secretary. |1897|

608. From season to season, these people, in particular mobile units specifically designated in each cooperative, were moved, often on foot, under guard and with insufficient food or accommodation, |1898| to farm and build infrastructure, including dams and irrigation systems. |1899| Angkar told people that the reason for their displacement was that manpower was insufficient at their destinations. |1900|

609. After mobile units and others subject to seasonal re-location were assigned to new locations, many who remained behind received no further information concerning their whereabouts. |1901| Some of those moved later attempted to return to the cooperatives from which they came. |1902| Civil Party AUN Phally explained that some who attempted to escape were chased by Khmer Rouge soldiers. He heard their screams after they were caught, although he did not specify their fate. |1903|

11.3.2. The 1977 Goal: Three or Six Tonnes per Hectare

610. In an article published in the Revolutionary Flag dated June 1976, the Party leadership appears to have realised that it was not possible to carry out all planned work in 1976. is the article noted that manpower had not been distributed with proper discernment: sometimes all people were sent to work-sites, but no one (elderly people or children) was left behind to grow vegetables or other crops. In the same article, it is requested that guidelines on how to use manpower be better understood in the future and that their implementation change in 1977. |1904| On 17 and 18 November 1976, the Party leadership held its Second Nationwide Economics Conference in which it adopted the specific 1977 Plan. |1905| This set a new target of three tonnes per hectare or, six tonnes per hectare in those areas that could produce both a rainy and dry season crop. |1906| The Party leadership intended that manpower be sent first to areas where there was sufficient water and fertile land. |1907| Further, in the face of persistent drought, |1908| whenever there was free manpower, it was to be assigned to build dikes and canals. |1909| In a speech commemorating the second anniversary of the liberation of Phnom Penh, KHIEU Samphan declared that irrigation projects were being built by "progressive corps" throughout the country. He reported that each construction site had between 10,000 and 30,000 workers. |1910|

611. In 1977, population movements were again reported in Battambang and Pursat Provinces (Northwest Zone). |1911| From Thkaol, Pursat Province, people were moved to Boeng Kol, Pursat Province to farm. |1912| Others in Pursat Province were assigned to mobile units and transferred to new locations depending on the season. |1913| Still others were transferred to work-sites or factories in Battambang Province (Northwest Zone). |1914| Some transferred at the end of 1977 disappeared en route. |1915|

612. Between December 1976 and December 1977, mobile units were also sent to build dams in Kampong Thom and Kampong Cham (Central (old North) Zone) and Kampot (Southwest Zone). |1916| There were no machines to build dams, so manual labour was used. |1917| In particular, workers numbering in the thousands |1918| were gathered from Kampong Cham and Kampong Thom (Central (old North) Zone) to work on the 1st January Dam, located in Baray District, Kampong Thom, over the course of its construction which began in December 1976. |1919| Mobile units walked between dam work-sites regardless of the distance and were not provided with food, water or mosquito nets. |1920| Sometimes, they were not escorted. |1921| However, nobody refused transfer unless they were sick or unable to walk. |1922|

11.4. Class Struggle against the 'New People': Transfers within the Northern, Southern and Central Regions

613. Besides seasonal re-location to advance agricultural production, people were also moved within the northern, central and southern regions to further the class struggle. "Class struggle" referred to the Party's opposition to the 'New People'. |1923| 'New People' included officials of the Khmer Republic, intellectuals, landowners, capitalists, feudalists and the petty bourgeoisie. |1924| The Party leadership considered that although they had been defeated and their class overthrown, the outlook and desires of this class remained the same. |1925| In particular, former officials of the Khmer Republic were targeted as the main enemies. |1926| The most dangerous enemies were to be purged. |1927| Other 'New People' were moved from their home areas and thereby separated from their property and their former capitalist and feudalist lives. While they were moved and once at their destination, the 'New People' could be re-fashioned into peasants. |1928| By moving and purging the capitalist classes and eliminating private ownership, these "enemies" would have no power to oppose the Party. |1929|

614. After being moved, many 'New People' disappeared. |1930| Other 'New People', after being re-fashioned in the cooperatives, were to be integrated into the Party system. |1931| Until that time, the Party leadership instructed that "no-good elements" had to be administered separately. |1932|

11.4.1. Re-fashioning in the Cooperatives (September 1975 to December 1976)

615. In August 1975, the Standing Committee considered that, in the cooperatives, the 'Old People' were the core, while the 'New People' were to be on the outskirts of society, learning from the 'Old People' and being re-fashioned into peasants through hard labour. |1933| The Party leadership warned in October 1975 that "enemy agents and a variety of other bad elements" were still mixed among the more than two million 'New People' that had just gone to the countryside. |1934| Thus in late 1975 and into 1976, the Party waged a "systematic attack on every field to dig [the bad elements among the 'New People'] out by the large roots and the small roots". |1935|

616. In mid-1976, the Party declared that it had organized, built, strengthened and expanded the cooperatives, attacked the capitalist regime and ended the feudalist-landowner regime. |1936| Thus in mid-1976, the primary focus began to shift to enemies within the Party. |1937| Nevertheless, it was still considered essential to attack the 'New People', the remnants of the feudalists and capitalists. |1938| Throughout 1976, the cooperatives continued to expand, on average to between 100 and 300 families, with some reaching as many as 500 families and some commune cooperatives reaching as many as 1,000 families. |1939|

617. By mid-1976, Khmer Rouge soldiers had gathered hundreds of former soldiers of the Khmer Republic and their families, and transported them by cart and on foot to various locations including Thkaol in Pursat Province (Northwest Zone); |1940| Boeung Kantout, |1941| Chock |1942| and Au Pongmoan |1943| in Battambang Province (Northwest Zone); and Thmei Commune, Kratie Province (Sector 5 05). |1944| They were not provided food along the way, were threatened with loaded weapons and questioned about their history. |1945| Civil Party MEAS Chanthan's grand-uncle could not walk and the family had to carry him. |1946| After being released, the people were then transferred to new locations and some were separated from their families. |1947|

618. At Thkaol in Pursat, between 1975 and 1977, many people were released after questioning and sent to zones which allegedly had plentiful food. |1948| These people disappeared, including Civil Party LAY Bony's husband. |1949| LAY Bony also said that the clothes of some of those who disappeared were returned to Thkaol for others to use. |1950| She was told later that some were executed, but no one ever saw their bodies. |1951| In late 1976, the Khmer Rouge discovered that Civil Party SUONG Sim's grandmother was a grocer before 17 April 1975 and that his uncles were educated. They were transferred from Samraong Village, Bakan District to Robang Romeas, Pursat Province and never returned. |1952|

619. In southern Cambodia, the Khmer Rouge sent 'New People' and former soldiers of the Khmer Republic for re-fashioning at locations such as Ta Ney Prison, Kampot Province |1953| and Sgnok Mountain, Kampong Speu (Southwest and West Zones). |1954| Approximately 50 people sent for re-fashioning on Sgnok Mountain were transferred under guard and were not provided food or water. |1955| Upon arrival, they had no shelter, food, water or medicine. |1956| Thereafter, many died from wild boar attacks, starvation, dehydration and disease. |1957| After about two months, Angkar announced that the twenty survivors had been re-fashioned and they were permitted to leave the mountain. |1958| At the base of the mountain, Angkar put them onto trucks which took them to a train station in Phnom Penh where they were boarded onto a train to Kampong Chhnang (West Zone). |1959|

620. In 1976, approximately 600 families were evacuated from Prey Veng and Kampong Cham Provinces (East Zone) to Mondulkiri Province (Northeast Zone). |1960| Most were taken to Sre Sangkum, Koh Nek District, but the "bad people" were taken to Raya Work-site. |1961|

11.4.2. "Clearly distinguish the elements" (1977)

621. The Party leadership believed it was necessary to have "good people" (according to the Party's class line, meaning those considered as such based on their social class) to farm the most fertile land, in order to increase production and solve the water problem. |1962| Middle peasants and the petty bourgeoisie, who were deemed less reliable, were to be assigned, under the leadership of the proletariat or party members originating from the base class, to tasks secondary to farming the most fertile land. |1963|

Thus, in 1977, in the cooperatives, it was necessary to clearly distinguish people as "full rights members" (base people in the cooperatives), "candidate members" (those base people who were financially well-off before April 1975) and "depositee members" (the "17 April" people) to prevent any confusion in managing and gathering forces. |1964|

622. In 1977, the Sambour District chief, Phan, ordered Witness YUN Kim, chief of Sambour Commune, Kratie Province, to classify people according to these categories. |1965| That same year, CHUON Sam At who had already been evacuated from Phnom Penh and moved several times thereafter, was accused by the Khmer Rouge of being a teacher, arrested with his family and transported by ox cart from Bos Meas to Brasra, Sambo District, Kratie Province (Sector 505). |1966|

623. In Kampong Thom Province (Central (old North) Zone), the "upper level" selected 'New People' to be moved to new villages. |1967| Local officials were provided with lists and instructed to prepare those people to board trucks sent by the Sector. |1968| People accused of being educated or officials of the Khmer Republic were taken to new locations in Kampong Thom and Kampong Cham Provinces (Central (old North) Zone) and Takeo and Kampot Provinces (Southwest Zone), and some people then disappeared. |1969| In Rumchak Village, Takeo Province (Southwest Zone), all the 'New People', including those previously evacuated from Phnom Penh, had been displaced. |1970|

11.5. Transfers away from the Vietnamese Border

624. Along the border with Vietnam, incursions were on-going from the end of 1976 and into 1977. |1971| People were withdrawn from various locations in the East Zone along the border with Vietnam including Kampong Cham Province (Spea Rongand Memot) |1972| and Svay Rieng Province (Samraong, Sa Thnank, Prasat , Svay Thom and Bavet). |1973|

625. The Khmer Rouge told the people they were being evacuated for their protection. |1974| "Bad elements" were instead evacuated to the rear for re-education, grouping and screening. |1975| Later, some people evacuated to the rear were called to work other places. |1976| They followed the Khmer Rouge soldiers and then disappeared. |1977| After the Khmer Rouge re-distributed their clothing, their relatives assumed that they had been killed. |1978| Meanwhile, mobile units were sent back to the front lines to harvest rice, |1979| carry ammunition, |1980| and carry wounded Khmer Rouge soldiers from the battlefield. |1981|

626. During these movements from the Vietnamese border, the people travelled on foot. |1982| Food was transported with them and the Khmer Rouge controlled its distribution. |1983| The elderly and sick were carried on hammocks. |1984|

11.6. Legal Findings

627. In connection with movement of the population (phase two), the Closing Order charges the Accused with the crimes against humanity of extermination, |1985| political persecution |1986| and other inhumane acts comprising enforced disappearances, |1987| forced transfer |1988| and attacks against human dignity. |1989| Movement of the Cham Muslim minority forms the basis of both forced transfer and religious persecution charges in connection with movement of the population (phase two). |1990| The latter charges of religious persecution do not fall within the scope of Case 002/01. |1991| As the factual basis for these two charges is the same and the charges are inextricably linked, the Chamber will not make findings in this judgement concerning allegations of the forced movement of the Cham that are also charged as religious persecution.

628. While the KHIEU Samphan Defence and NUON Chea Defence concede that people were moved during phase two, both challenge the forced and criminal nature of the movements, as well as the control exercised by the Party Centre. |1992| In closing submissions, the KHIEU Samphan Defence also submitted that the temporal and geographic particulars of movement of the population (phase two) are vague and that the allegations falling within the scope of Case 002/01 do not extend into 1977. |1993| The Chamber notes, first, that this challenge to the form of the Closing Order and sufficiency of notice was not raised before the Pre-Trial Chamber. Pursuant to Internal Rules 67(2) and 76(7), once appeals against the Closing Order are resolved, no issues concerning its form can be raised before the Trial Chamber. Further, the KHIEU Samphan Defence did not raise this challenge before the Trial Chamber within the time-limit imposed by Internal Rule 89(1) for the filing of preliminary objections, or at any other time prior to the filing of Closing Briefs. The Chamber therefore finds that, insofar as the KHIEU Samphan Defence is challenging the form of the Closing Order, its belated submissions are inadmissible.

629. In any event, Defence arguments that movement of the population (phase two) is not alleged to extend into 1977 are without merit. According to the Closing Order, movement of the population (phase two) began around September 1975 and continued into 1977. |1994| In support of this temporal period, the Closing Order expressly cites Civil Party interview records referring to movements in early, mid and late 1977. |1995| Otherwise, the Defence appears to be challenging the sufficiency of the evidence, |1996| which the Chamber will address in its legal findings that follow.

11.6.1. Forced Transfer

630. The Chamber finds that between September 1975 and early 1977, at least 300,000 to 400,000 people were displaced from various locations in Kandal, Kampong Thom, Kampong Cham, Takeo, Kampong Speu, Kampong Chhnang, Prey Veng and Svay Rieng Provinces (Central, Southwest, West and East Zones) to Battambang and Pursat Provinces (Northwest Zone), Kampong Thom Province (Central (old North) Zone) and Preah Vihear Province (Sector 103). |1997| The Chamber finds that, between September 1975 and December 1977, more than 30,000 people |1998| were also displaced to Kratie (Sector 505), from and within Prey Veng and Svay Rieng Provinces (East Zone), within Kampong Thom and Kampong Cham Provinces (Central (old North) Zone) and within Battambang Province (Northwest Zone). |1999| Although the Co-Investigating Judges alleged that people were also moved to Siem Reap Province (Sector 106) and to Kampong Cham Province (Central (old North) Zone), the Chamber has not identified sufficient evidence supporting these allegations in Case 002/01.

631. The evidence establishes that the overwhelming majority of persons displaced during phase two were Cambodians already re-located by the Khmer Rouge prior to September 1975. |2000| Obviously, the fact that persons are already displaced from their home territory does not mean that their presence is illegal at the destination of their displacement. In addition, some people displaced during phase two were Cambodians lawfully residing in their home territories. |2001|

632. The overwhelming majority of the evidence before the Chamber indicates that most people were ordered to leave and were transferred under armed guard. |2002| Those who refused transfer or attempted escape were arrested, detained or transferred in a further round of movements. |2003| Khmer Rouge guards provided no assistance and often no information as to their destination. People were frightened and lived in a state of terror, unwilling or unable to disobey or question orders. |2004|

633. There is evidence that some people displaced to Battambang and Pursat Provinces (Northwest Zone) from southern Cambodia went willingly due to the poor living conditions in the Southwest, West and East Zones. |2005| Prior to September 1975, the Khmer Rouge re-located many people from their homes in Phnom Penh and other locations to over-populated areas in the West, Southwest and East Zones which had infertile land and insufficient resources and food. |2006| Therefore, the Khmer Rouge created the humanitarian situation in which the people found themselves during displacements between September 1975 and 1977. Consequently, willingness to be relocated cannot be seen as the genuine exercise of choice. People were told and believed that better land and resources awaited them at their destination or that they were being transferred back to their homes. |2007| Many were not returned to their homes or were not transferred to the destination they were told they would be sent to. |2008| The Chamber therefore finds that people had no genuine choice concerning their transfer and that Khmer Rouge soldiers and officials forcibly transferred people by various methods including force, coercion and deception.

634. The Party justified its mass relocations of people in large part on the pretext of caring for the population, allegedly moving them to zones with more fertile land in order to ensure that everyone had sufficient food to eat. The Party also considered that these movements would allow it to identify and isolate threats to the building and defending of socialism, including spies, foreign agents, former Khmer Republic officials and those 'New People' who could not be reformed. As noted above, the catastrophic humanitarian situation in which there was insufficient food resulted in significant part from the Party's own actions. |2009| Accordingly, this cannot serve as a justification for movements on the basis of civilian security or military necessity.

635. Even if the above justifications were accepted, the movements during phase two were neither necessary nor proportional. First, there is no evidence that people were returned to their homes or that the majority were afforded any stable residence, even after re-location. Rather, many were constantly re-located between September 1975 and December 1977, some as part of a seasonal workforce. |2010| Second, although there is evidence that some food, accommodation and assistance were provided during or after the transfer, it was not sufficient, if it was provided at all. |2011| People were crowded into trucks, trains and carts, or forced to walk, without hygiene facilities. |2012| During stops, they had to sleep on the ground open to the elements and were provided no mosquito nets, bedding and insufficient food. |2013| Over the course of the movements, some died from exhaustion or starvation. |2014| After arriving at their assigned work-sites and cooperatives, many were separated from their families, had to build their own homes and were provided no assistance or accommodation in the meantime. |2015| Finally, specifically in relation to those transfers away from the Vietnamese border, the Chamber notes that Khmer Rouge soldiers and officials transferred some of these people either to be re-educated, some of whom disappeared, or to the front lines to work. |2016| This placement of people in situations of high risk undermines any justification based on the security of the population.

636. The Chamber therefore finds that the forced transfers between September 1975 and December 1977 were not justified on the basis of civilian security or military necessity, and, in any event, were neither necessary nor proportional.

637. Transfers during phase two were done pursuant to the plans and policy of the Party, the elements of which were disseminated to all levels of the Khmer Rouge hierarchy. |2017| They were initiated, ordered, carried out by, and under the armed guard of, Khmer Rouge soldiers and officials. |2018| The Chamber therefore finds that they were intentional.

638. The Chamber finds that between September 1975 and early 1977, Khmer Rouge soldiers and officials intentionally and forcibly transferred, without grounds permissible under international law, at least 300,000 to 400,000 lawfully present people from various locations in Kandal, Kampong Thom, Kampong Cham, Takeo, Kampong Speu, Kampong Chhnang, Prey Veng and Svay Rieng Provinces (Central, Southwest, West and East Zones) to Battambang and Pursat Provinces (Northwest Zone), Kampong Thom Province (Central (old North) Zone) and Preah Vihear Province (Sector 103). The Chamber also finds that between September 1975 and December 1977, Khmer Rouge soldiers and officials intentionally and forcibly transferred, without grounds permissible under international law, more than 30,000 lawfully present people to Kratie (Sector 505), from and within Prey Veng and Svay Rieng Provinces (East Zone), within Kampong Thom and Kampong Cham Provinces (Central (old North) Zone), and within Battambang Province (Northwest Zone).

639. These transfers were done under inhumane conditions: people were often separated from their families and provided no, or insufficient, comfort, assistance and accommodation. |2019| Many had already been evacuated from cities and towns or between rural regions prior to being transferred again in phase two. The effects and suffering were lasting. |2020| The Chamber therefore finds that Khmer Rouge soldiers caused serious bodily and mental harm to those displaced during phase two and that they intended to do so. These transfers violated numerous rights, including freedom of movement. The Chamber finds that the forced transfers undertaken between September 1975 and 1977 rise to the level of and, as set out below, involved, other crimes against humanity as enumerated in the ECCC Law. In sum, the Chamber finds that Khmer Rouge officials and soldiers committed the crime against humanity of other inhumane acts through forced transfer.

11.6.2. Enforced Disappearances

640. Movement of the population (phase two) was characterised by the deprivation of individuals' liberty by State agents. Khmer Rouge soldiers and officials ordered people to depart, transported them under armed guard and in closed vehicles, and chased and arrested those who attempted to escape. |2021| Further, Khmer Rouge soldiers and officials exercised control over all elements of the transfer. |2022| Khmer Rouge soldiers and officials determined how people would be moved, when they would relieve themselves, where and when they would rest, what food and water they would have, whether their families would remain together, and to what location they would be sent. |2023|

641. These deprivations of liberty were accompanied by a deliberate refusal to provide accurate information regarding the fate or whereabouts of the persons concerned, with Khmer Rouge soldiers and officials providing no or false information concerning their fate or destination. |2024| Some family members later presumed the fate of those displaced, such as when their clothes were re-distributed. |2025| Others heard rumours that people moved away had been killed. |2026| Still others had no clue or indication. It was only after the DK era that many family members and others with special bonds of affection to those displaced were able to confirm presumptions and rumours, or investigate the fate of those displaced. |2027| While the Chamber has not identified any evidence that people affirmatively sought information from the Party as to displaced persons, it is clear that the Khmer Rouge had created an environment in which people were afraid to question or to seek information from the Party. |2028|

642. The Chamber therefore finds that Khmer Rouge officials and soldiers deprived people of their liberty and refused to disclose information regarding the fate or whereabouts of some people transferred from southern Cambodia to Battambang and Pursat Provinces (Northwest Zone), Kampong Thom (Central (old North) Zone) and Preah Vihear (Sector 103), as well as to Kratie (Sector 505), within Kampong Thom and Kampong Cham (Central (old North) Zone), from and within Svay Rieng and Prey Veng (East Zone) and within Battambang (Northwest Zone).

643. The Chamber is satisfied that these enforced disappearances rise to the level of other crimes against humanity as enumerated in the ECCC Law. They caused great suffering both to those who disappeared, as well as to family members and others with special bonds of affection to those displaced. The Chamber considers that Khmer Rouge soldiers and officials, with control over all aspects of the movements during phase two, intentionally deprived people of their liberty, intentionally refused to disclose information of their whereabouts and thereby intentionally caused great suffering to those who disappeared, as well as to those who remained behind. The Chamber therefore finds that Khmer Rouge soldiers and officials committed the crime against humanity of other inhumane acts through enforced disappearances.

11.6.3. Attacks Against Human Dignity

644. People, many of whom had already lost their property and homes and suffered physically and psychologically during movements before September 1975, |2029| were moved again, often more than once, between September 1975 and December 1977. |2030| During journeys lasting days or weeks, Khmer Rouge soldiers and officials provided insufficient food, water, shelter, medical assistance and hygiene facilities. |2031| Due to these conditions, some died. |2032| Their bodies were disposed of along the way, some thrown out of the windows of moving trains, thereby depriving the families the opportunity to mourn the deceased. |2033| Families were often separated over the course of the population movements. |2034| These conditions were imposed systematically and at all stages of phase two. They caused serious and lasting mental and physical suffering. |2035|

645. The Chamber finds that conditions of transfer from southern Cambodia to Battambang and Pursat Provinces (Northwest Zone), Preah Vihear (Sector 103) and Kampong Thom (Central (old North) Zone), as well as to Kratie (Sector 505), within Kampong Thom and Kampong Cham (Central (old North) Zone), from and within Svay Rieng and Prey Veng (East Zone), and within Battambang (Northwest Zone) were intentional, caused serious bodily and mental harm, and rise to the level of other enumerated crimes against humanity. Accordingly, the Chamber finds that Khmer Rouge officials and soldiers committed the crime against humanity of other inhumane acts through attacks against human dignity as defined in the ECCC Law.

11.6.4. Extermination

646. During transfers from southern Cambodia to Battambang and Pursat Provinces (Northwest Zone), people died as a result of the inhumane conditions in which they were moved, including as a result of indifference and failure to provide any assistance. |2036| Khmer Rouge soldiers shot others. |2037| The exact number of deaths during movement of the population (phase two) is unknown.

647. However, hundreds of thousands were re-located with insufficient accommodation and assistance and under inhumane conditions. The old, the young and the sick were all moved over the course of days, or as long as a week, without medical assistance, sufficient food or water, no shelter or hygiene facilities either en route or during stops, and in over-crowded trucks and trains. |2038| There is evidence indicating that many died due to starvation, exhaustion and at the hands of their Khmer Rouge guards during different stages and phases of the transfer. |2039| The Chamber therefore considers that the evidence before it of deaths during transfers from southern Cambodia to Battambang and Pursat Provinces (Northwest Zone) is but a representative sample of the total number. The Chamber finds that people died on a massive scale during these movements.

648. During phase one, people were moved under similar conditions, resulting in many deaths. |2040| In this regard, the Chamber notes that the Party leadership ignored the lessons of phase one and took no measures to ensure that people were provided adequate assistance or accommodation during phase two. Additionally, movements during phase two were carried out by many of the same soldiers and officials responsible for previous movements. |2041| The Chamber accordingly finds that Khmer Rouge soldiers and officials systematically and intentionally imposed conditions on people moved from southern Cambodia to Battambang and Pursat Provinces (Northwest Zone) that would likely lead to death on a massive scale. Accordingly, the Chamber finds that Khmer Rouge soldiers and officials committed the crime against humanity of extermination during transfers from southern Cambodia to Battambang and Pursat Provinces (Northwest Zone).

11.6.5. Political Persecution

649. The particular acts amounting to persecution must be expressly charged. |2042| In determining whether this requirement has been met, the Chamber will have regard to all factual and legal findings in those portions of the Closing Order included within the scope of Case 002/01 and relevant to movement of the population (phase two). |2043|

650. According to the Closing Order, the Khmer Rouge committed persecution in multiple ways: against high-ranking military and civilian officials of the Khmer Republic insofar as they were automatically excluded from the goal of building socialism; against low-ranking officers who were arrested and often executed; and against 'New People' or '17 April people' insofar as they were subjected to harsher treatment with a view to re-education. During population movements, real or perceived enemies of the CPK were subjected to harsher treatment and living conditions with a view to re-educating them or identifying enemies amongst the targeted groups. |2044|

651. In relation to movement of the population (phase two), there is no specific reference to high-ranking or low-ranking Khmer Republic officials as distinct groups targeted for persecution in the relevant findings of the Closing Order. The Chamber therefore finds that political persecution was not charged against these groups in relation to movement of the population (phase two).

652. The Closing Order alleges that the entire population remaining in the towns after the CPK came to power, including those associated or connected with the Khmer Republic, were labelled as 'New People' and subjected to harsher treatment than 'Old People'. |2045| In relevant part, the Closing Order does not distinguish between the treatment of those associated with the Khmer Republic and the broader category of 'New People'. |2046| The Chamber therefore finds that only political persecution against 'New People', a category including those associated with the Khmer Republic, was charged in connection with movement of the population (phase two). Based on a complete reading of the Closing Order, the Chamber considers that the alleged harsher treatment of 'New People', characterised as re-education, was effected in particular through acts of forced transfer |2047|, enforced disappearances. |2048|

653. The Party identified 'New People' as a group politically and socially opposed to the socialist revolution in Cambodia. |2049| Thus 'New People' were singled out by Party policy for re-fashioning. |2050| This policy was disseminated throughout the Party ranks, including to ordinary Khmer Rouge soldiers. |2051| Khmer Rouge soldiers and officials were ordered to administer the 'New People' and 'Old People' separately. |2052| Indeed, at various stages of movement of the population (phase two), Khmer Rouge soldiers and officials questioned people about their history, verifying whether or not people could be qualified as 'New People'. |2053| As this group was identified pursuant to criteria defined by the CPK leadership, and its background was verifiable, as demonstrated by questioning by Khmer Rouge soldiers, the Chamber is satisfied that 'New People' constitutes a sufficiently discernible group.

654. The Chamber has found above that other inhumane acts comprising forced transfers and enforced disappearances have been proven in connection with movement of the population (phase two). |2054| It now considers whether these crimes were discriminatory in fact and deliberately perpetrated with the intent to discriminate.

655. Having regard to the practice during movement of the population (phase two), the Chamber notes that, in many locations, exclusively 'New People' were forcibly transferred, |2055| while, in some locations, both 'Old People' and 'New People' were displaced. These latter displacements occurred for specific reasons, either because of a distrust of the whole population living in the East Zone along the border with Vietnam, or because of the CPK leadership's drive to fill their production quotas. |2056| Before or during population movements, however, Khmer Rouge soldiers and officials questioned people about their history in order to identify 'New People'. This questioning often determined the location to which people would be sent, including to the jungle where they had to clear land and build their own shelter. |2057| Other 'New People' were taken to be re-fashioned or re-educated at security centres. |2058| After some 'New People' were identified at various cooperatives or work-sites, they were transferred and disappeared. |2059|

656. The Chamber is therefore satisfied that Khmer Rouge soldiers and officials intended to discriminate against the 'New People' on political grounds by forcibly transferring specifically 'New People' from certain locations in southern Cambodia to Battambang and Pursat Provinces (Northwest Zone), Preah Vihear (Sector 103) and Kampong Thom (Central (old North) Zone), as well as to Kratie (Sector 505), within Kampong Thom and Kampong Cham (Central (old North) Zone), from and within Svay Rieng and Prey Veng (East Zone), and within Battambang (Northwest Zone). The Chamber is also satisfied that Khmer Rouge soldiers and officials intended to discriminate against 'New People' on political grounds by depriving them of their liberty and refusing to disclose information concerning their whereabouts (enforced disappearances) during movements from certain locations in southern Cambodia to Battambang and Pursat Provinces (Northwest Zone), Preah Vihear (Sector 103) and Kampong Thom (Central (old North) Zone), as well as to Kratie (Sector 505), within Kampong Thom and Kampong Cham (Central (old North) Zone), from and within Svay Rieng and Prey Veng (East Zone), and within Battambang (Northwest Zone).

657. These forced transfers and enforced disappearances violated fundamental rights and freedoms pertaining to movement, |2060| property, |2061| family, |2062| life |2063| and personal dignity. |2064| The Chamber is satisfied that these other inhumane acts, which are crimes against humanity in their own right, rise to the requisite level of severity such as to constitute persecution. The Chamber finds that Khmer Rouge soldiers and officials intentionally discriminated in fact against 'New People' on political grounds. The Chamber therefore finds that Khmer Rouge soldiers and officials committed the crime against humanity of persecution through the other inhumane acts of forced transfer and enforced disappearances.

12. TUOL PO CHREY

658. As relevant to Case 002/01, |2065| the Closing Order alleges that from late April 1975 Tuol Po Chrey was used as an execution site at which large-scale killings of the former military and civilian population were carried out. The site is described as including a former Khmer Republic military fort (known as the Po Village Fort) and a lake where bodies were dumped. Tuol Po Chrey was located in Kandieng District, Sector 7, North-west Zone. |2066|

659. According to the Closing Order, in the days after Pursat Province was captured by the North-west Zone Military in April 1975, the Pursat provincial governor and soldiers and civil servants of the former LON Nol regime were invited to attend a meeting at Pursat provincial town-hall. Senior Khmer Rouge leaders of the Northwest Zone Committee, the Sector 7 Committee and the Kandieng District Committee also attended the meeting. The approximately 3,000 former LON Nol officials in attendance were told they were to undergo study to be reintegrated into the new army structure. On this understanding, the participants voluntarily boarded trucks after the meeting and were taken to Tuol Po Chrey where they were executed. These executions were carried out pursuant to an order from Ta Nhim |2067| and Ta Sot |2068| that all "dignitaries, both military and police" of the LON Nol regime were to be killed. |2069|

660. Three witnesses testified before the Chamber about this event. Witness LIM Sat, Khmer Rouge deputy commander of a platoon, participated in fighting against LON Nol soldiers in Pursat Province; Witness SUM Alat, a LON Nol soldier, was stationed at Svay Doun Keo battlefield at the time the LON Nol forces surrendered; and Witness UNG Chhat, a Khmer Rouge soldier, guarded the entrance of the provincial headquarters in Pursat during the days following the capture of Pursat by the Khmer Rouge. |2070|

12.1. Defeat of Pursat Province and Zone Committee Meeting

661. For three to four years, Khmer Rouge forces under the command of the Northwest Zone Commander Ta Khleng had been involved in fighting to capture Pursat Province from LON Nol soldiers, |2071| led by Commander Pel and Deputy Commander Run. |2072| During this time, there were many fortresses throughout Pursat Province where LON Nol soldiers were stationed. |2073| Prior to 17 April 1975, Khmer Rouge deputy commander LIM Sat and his forces were also stationed in the area and engaged in combat at the fort of Tuol Po Chrey. |2074| Tuol Po Chrey, where an estimated 30 to 200 LON Nol soldiers were positioned, was one scene of fighting between the opposing forces. |2075|

662. Although the exact date is uncertain, the Khmer Rouge captured and took control of Pursat Province shortly after Phnom Penh was seized on 17 April 1975. |2076| In a radio announcement broadcast on 17 April 1975 from Phnom Penh and heard in various places in Cambodia, General MEY Sichan, the representative of the LON Nol army, called for LON Nol soldiers throughout Cambodia to surrender. |2077| Following the announcement, LON Nol soldiers in SUM Alat's unit in Svay Doun Keo, on the border between Pursat and Battambang Provinces, raised a white flag, laid down their arms and joined the Khmer Rouge in a celebratory event. |2078| According to LIM Sat, he personally saw the LON Nol soldiers at the Tuol Po Chrey fort also surrender by raising white flags in all the barracks, after which the Khmer Rouge collected their weapons. |2079| The LON Nol soldiers at the fort were not permitted to leave and remained there in their military uniforms. |2080|

663. According to LIM Sat, Khmer Rouge Zone Committee and the Sector Committee's members held an internal meeting in the days following the capture of Pursat Province |2081| at which Ta Nhim and Ta Kan the Zone Committee chairman and deputy chairman Ta Sot, a Sector secretary, |2082| gave orders to Khmer Rouge commanders that soldiers and policemen from the LON Nol administration were to be "assembled" and killed. |2083| Although LIM Sat did not attend that meeting, he received orders immediately after it from his RAK regiment commander, Commander Huon. |2084|

664. According to LIM Sat's Interview Record, these orders were to assemble and then kill the LON Nol officials. |2085| Later at trial however, he claimed that he did not know that the LON Nol officials were to be killed, |2086| and that Commander Huon's orders were limited to assembling soldiers and policemen with connections to the LON Nol era in order for them to attend a study session, after which those who worked at the Centre level would be permitted to resume their previous functions. |2087|

665. LIM Sat, who guarded the subsequent meeting, was the only witness to testify about these orders. The Chamber is conscious that he may be motivated to diminish or shift responsibility for his involvement in the events in question. The Chamber does not find the testimony of LIM Sat concerning his limited knowledge of the criminal purpose of the orders to be credible. However, his initial evidence before the Co-Investigating Judges as to the content of the orders is corroborated by evidence of a pattern of conduct. After the capture of towns by the Khmer Rouge former LON Nol officials were called to meetings characterised as study sessions or as opportunities to meet Prince Sihanouk, and were subsequently executed. |2088| Further, LIM Sat's evidence as to the way in which orders received from the 'upper echelon' were disseminated also accords with the Chamber's findings on Communication Structures. |2089| The Chamber consequently finds his testimony as to the substance of these orders to be credible.

666. Former LON Nol soldiers were later invited to join a meeting at Pursat provincial town-hall presided over by Ta Nhim and Ta Kan of the Zone Committee and Ta Sot of the Sector Committee. |2090| The invitation was relayed to the provincial governor and LON Nol leaders who in turn conveyed it to their respective subordinates by word of mouth and announcements. |2091|

12.2. Meeting(s) with LON Nol officials at Pursat provincial town-hall

667. The Chamber heard evidence from SUM Alat, LIM Sat and UNG Chhat about the subsequent meetings at Pursat provincial town-hall. SUM Alat, a low-ranking former LON Nol soldier at the time of the events was the only witness to have attended the meetings. |2092| His evidence as to the subject matter of the meetings and the participants is detailed and reliable. His evidence concerning promises made to the LON Nol officials at the meetings and their subsequent transfers to Tuol Po Chrey was corroborated by UNG Chhat, a Khmer Rouge soldier, and LIM Sat. |2093| SUM Alat testified about meetings over two consecutive days. Although LIM Sat and UNG Chhat spoke of events during the course of only one day, their testimony indicates that there were meetings over at least two days. |2094| Having regard to the substance of their testimony, the Chamber is also satisfied that the events recounted by LIM Sat and UNG Chhat occurred on the second day about which SUM Alat testified.

668. According to SUM Alat, the provincial government and LON Nol military continued to function as usual after the Khmer Rouge take-over of Pursat Province on or around 17 April 1975, and some LON Nol soldiers continued to wear their uniforms. |2095| Approximately one week after 17 April 1975, i.e., on or around 24 April 1975, LON Nol officials attended the announced meeting at Pursat provincial town-hall. |2096| Although many were brought to the meeting by Khmer Rouge units, evidence suggests that attendance was nonetheless voluntary. |2097|

669. While there are inconsistencies in the evidence regarding the number of attendees |2098| and the presence of civilians at the meeting(s), |2099| the Chamber notes that given the passage of time since the events in question, memories may vary to a certain extent. However, with the exception of LIM Sat's testimony on the particular issue of the number of attendees, the evidence clearly establishes that at a minimum, several hundred people, including civilians, attended the town-hall meeting. All of the estimates provided however, fall short of the 3,000 attendees cited in the Closing Order. |2100|

670. The first meeting started at 2 p.m. and lasted two to three hours during which the attendees were educated about the policy of reconciliation and country-building and were urged to trust the Khmer Rouge concerning a forthcoming meeting with Angkar at Tuol Po Chrey. |2101| Everyone was then told to meet again the following day, either 25 or 26 April 1975, so that they could be sent all together to be received by Angkar. |2102| SUM Alat felt optimistic after that first meeting. He and the other meeting's participants, fed up with fighting, felt that meeting Angkar would provide an opportunity to reconcile and build the country. |2103| Consequently, SUM Alat and the other attendees went to the meeting the following day. |2104|

671. Top Khmer Rouge leaders, armed and wearing black clothes, attended the first meeting. Among them were Ta Tauy, the deputy secretary of Sector 7, |2105| and Ta Sot, the head of Sector 7. Ta Sot attended both meetings but only spoke during the first. |2106| Ta Kan from the Zone Committee and Ta Vanh, |2107| as well as representatives from the sector committee, also attended although it is not clear whether they attended one or both meetings. |2108| No one on the LON Nol side was armed. |2109|

672. Both LIM Sat and UNG Chhat were outside the town-hall during the second meeting |2110| after which the 'upper authority' gave notice to the Khmer Rouge guards to take those attending the meeting to a site near the Tonle Sap River for re-education sessions, so they could then return to their former occupations. |2111| Commander Huon told LIM Sat that the LON Nol police and soldiers were called to attend the meeting because the Khmer Rouge were afraid that the police and soldiers would revolt against them. |2112| As they left the provincial town-hall, the LON Nol soldiers told their relatives that they were to meet Prince NORODOM Sihanouk. |2113|

12.3. Transfer to Tuol Po Chrey

673. Immediately after the second meeting concluded, the LON Nol officials were loaded onto trucks, including military trucks, |2114| and purportedly taken for re-education. |2115| So many were eager to attend the reception with Angkar that there were not enough trucks to accommodate everyone, including SUM Alat. |2116|

674. The trucks were driven by the drivers from the Zone. |2117| The Zone Commander, Ta Khleng, chose Tuol Po Chrey as the location to assemble the LON Nol soldiers and policemen. |2118|

675. The transfers from the town-hall to Tuol Po Chrey lasted the whole day, |2119| and involved several trips. |2120| LIM Sat's unit received orders via radio from Khmer Rouge soldiers at Tuol Po Chrey fort to send on more trucks after the previous ones had left. |2121|

676. The evidence as to the number of trucks involved in the transfer varied from six to eight trucks according to LIM Sat's lowest estimatee, to 100 trucks in the opinion of a local farmer. |2122| LIM Sat's various figures (which ranged from six to 15) as to the number of trucks involved in the transfer is inconsistent with his estimate that close to 2,000 LON Nol soldiers were transported to Tuol Po Chrey. |2123| Insofar as LIM Sat's testimony that 10 to 15 trucks were used accords with that of SUM Alat and a civil party applicant, |2124| the Chamber is satisfied that a minimum of 10 trucks, each bearing at least 25 people, |2125| transported those attending the meetings to Tuol Po Chrey.

677. The divergent testimony as to whether those transferred were military or civilians, or wore military or civilian clothing |2126| does not undermine the reliability of the witnesses' accounts as to the transfers themselves. The Chamber is satisfied that both civilians and soldiers attended the town-hall meeting and that those subsequently transferred from the town-hall to Tuol Po Chrey also comprised both former LON Nol soldiers, who were unarmed at the time, as well as former civilian officials of the same regime.

12.4. Events at Tuol Po Chrey

678. Although none of the witnesses heard by the Chamber were present at the Tuol Po Chrey site to witness the fate of those transferred, the Chamber heard a significant amount of evidence as to the events that transpired, from which it can safely draw inferences. In particular, three days after the transfers, SUM Alat spoke with two LON Nol soldiers named That and Dor, who had escaped the scene of the execution. They told SUM Alat that all those aboard the trucks were forced off approximately 700 meters to one kilometre away from Tuol Po Chrey after which they were tied up, led over to another group of people and killed. |2127|

679. While Tuol Po Chrey was too far away from where LIM Sat's unit was stationed for him to hear gun-shots personally, he gave evidence that firearms were heard in the background during radio communication from Tuol Po Chrey and he also heard that one person had managed to escape. |2128| Both UNG Chhat and LIM Sat noted that the vehicles that had earlier transported the meeting's participants to Tuol Po Chrey returned to the town-hall empty. |2129| UNG Chhat also heard that villagers who had heard gun-fire had gone to the site and seen corpses with their hands bound. |2130| Up until the date of his testimony, SUM Alat had heard nothing more from or about his friends who were taken there. |2131|

680. The Khmer Rouge removed boots, watches and backpacks from those executed at Tuol Po Chrey and returned with these belongings. |2132| The executions at Tuol Po Chrey were carried out by soldiers from the North-west Zone while soldiers from battalions 201 or 202 were tasked with guarding the road. |2133| The executed victims were later either buried at the Tuol Po Chrey site or bulldozed into a pond using equipment sent by the Zone Committee to Tuol Po Chrey. |2134|

681. The only reasonable inference to be drawn from the evidence before the Chamber is that LON Nol officials transported to Tuol Po Chrey around 25 or 26 April 1975 were executed. |2135| Although evidence varies as to the exact number of victims, the Chamber is satisfied that a minimum of 250 former LON Nol officials died in this period. |2136|

12.5. Legal Findings

682. The Closing Order charges the Accused with murder, extermination and political persecution through execution as crimes against humanity for crimes allegedly committed at Tuol Po Chrey. |2137| The Chamber has previously concluded that the chapeau requirements of Article 5 of the ECCC Law have been fulfilled. |2138|

683. Murder. Those transferred from the town-hall to Tuol Po Chrey comprised both former LON Nol soldiers, who had surrendered and were unarmed at the time of the transfer, and former civilian officials of the same regime. The victims of the executions at Tuol Po Chrey included both civilians and former LON Nol soldiers who had surrendered and were no longer taking an active part in hostilities at the time of being transported to and executed at Tuol Po Chrey. In view of the findings regarding the transportation and execution of former LON Nol officials at Tuol Po Chrey, |2139| the Chamber finds that the legal requirements of murder are met (namely that the victims under consideration died, and that their deaths were caused by the acts of the Khmer Rouge soldiers from the North-west Zone). Further, in view of the large numbers of LON Nol officials transferred and executed, the repeated transfers to the execution site, and the manner of their execution, the Chamber is satisfied that Khmer Rouge soldiers from the North-west Zone at Tuol Po Chrey intended to kill these victims. Accordingly, the Chamber finds that the death of those LON Nol officials constitutes murder.

684. Extermination. The execution of a minimum of 250 LON Nol officials at Tuol Po Chrey approximately one week after 17 April 1975 is of a scale that satisfies the requirements of extermination. |2140| Having regard to the large numbers of LON Nol officials transferred and executed, the repeated transfers to the execution site, and the manner of their execution, the Chamber is satisfied that the Khmer Rouge soldiers from the North-west Zone at Tuol Po Chrey intended to kill on a massive scale and through their acts, committed extermination.

685. Political persecution. The acts of murder and extermination carried out at Tuol Po Chrey targeted former LON Nol officials, a clearly discernible group. These acts infringed upon and denied the fundamental right to life enjoyed by these individuals, as enshrined in customary international law. |2141| They were also discriminatory in fact insofar as the victims were former LON Nol officials.

686. The Chamber is further satisfied that the killings were committed with the intent to discriminate against former LON Nol officials on political grounds. This is evidenced by the official radio announcements across the country identifying former LON Nol officials as the enemy and the fact that similar acts were committed against LON Nol officials throughout Cambodia after the takeover on 17 April 1975. |2142| It is further supported by the circumstances surrounding the crimes, namely the discriminatory and targeted nature of the orders given by the North-west Zone Committee members Ta Nhim and Ta Kan and the common identity of the group of victims as former members of the LON Nol regime.

687. Conclusion. Having found that the chapeau requirements of Article 5 are satisfied, the killings of those former LON Nol officials at Tuol Po Chrey constitute the crimes of murder, extermination and persecution on political grounds as crimes against humanity.

13. APPLICABLE LAW: INDIVIDUAL CRIMINAL RESPONSIBILITY

13.1. Introduction

688. Article 29 (new) of the ECCC Law outlines the applicable forms of individual criminal responsibility: commission, planning, instigating, |2143| ordering, aiding and abetting, |2144| and superior responsibility. The Closing Order alleges that the Accused committed, through their acts and omissions (and through a joint criminal enterprise), planned, instigated, ordered, aided and abetted the charged crimes. Alternatively, the Closing Order charges the Accused with superior responsibility for the charged crimes. |2145| The Chamber may choose the form or forms charged in the Closing Order that describe the responsibility of the Accused most accurately. It is not obliged to make exhaustive factual findings on every charge. |2146| Where an accused is found to be both directly responsible and responsible as a superior in relation to the same conduct, the Chamber will convict on the basis of the former and consider an accused's superior position as an aggravating factor in sentencing. |2147|

689. The Chamber must determine whether each mode of liability satisfies the principle of legality, namely that it existed in customary international or Cambodian law between 1975 and 1979, and that it was sufficiently foreseeable and accessible to the Accused. |2148|

13.2. Commission through a Joint Criminal Enterprise

690. Participation in a joint criminal enterprise ("JCE") amounts to commission within the scope of Article 29 (new) of the ECCC law. |2149| The ICTY Appeals Chamber has held that JCE comprises three categories:

  • The basic category ("JCE I"), where all participants act pursuant to a common purpose and share the same criminal intent; |2150|

  • The systemic category ("JCE II"), referring to instances of ill-treatment in organised institutions, such as concentration camps; |2151| and

  • The extended category ("JCE III"), where participants have agreed on a common purpose involving the perpetration of crime(s) and are liable for criminal acts which, while outside the common purpose, are nevertheless a natural and foreseeable consequence of effecting that common purpose. |2152|

691. The Pre-Trial and Trial Chambers have held that JCE III did not exist in customary international or Cambodian law by 1975, |2153| and it will accordingly not be considered further. On 2 September 2011, the Trial Chamber re-affirmed that JCE I and JCE II were forms of criminal liability recognised in customary international law between 1975 and 1979. |2154| Considering the senior positions of the Accused and the customary nature of JCE I and JCE II by 1975, the Chamber finds that this mode of liability was foreseeable and accessible to the Accused. |2155|

692. All categories of JCE have three objective elements. First, there must be a plurality of persons. While it is necessary to identify the plurality of persons participating in the JCE, it is not necessary to identify by name each person involved. |2156| Second, there must be a common purpose which amounts to or involves the commission of a crime. |2157| Third, an accused must participate in the common purpose, making a significant, but not necessarily indispensable, contribution. |2158|

693. Participation in a common purpose may be by positive act or culpable omission. |2159| The significance of a contribution to the JCE is to be determined on a case-by-case basis, taking into account a variety of factors including the position of the Accused, the level and efficiency of the participation, and any efforts to prevent crimes. |2160| An accused's participation in a common purpose need not involve commission of a specific crime provided for in the Agreement or ECCC Law (for example murder, extermination or torture), but may take the form of assistance in, or contribution to, the execution of the common purpose. |2161| Participants in a JCE can incur liability for crimes committed by direct perpetrators who were not JCE members, provided that it has been established that the crimes can be imputed to at least one JCE participant and that this participant, when using a direct perpetrator, acted to further the common purpose. |2162|

694. With respect to the mens rea for JCE I, an accused must intend to participate in the common purpose and this intent must be shared with the other JCE participants. |2163| For JCE II, an accused must have knowledge of the criminal nature of a system of ill-treatment and intend to further the common system of ill-treatment. |2164| Participants in either of these forms of JCE must be shown to share the required intent of the direct perpetrators, including the specific intent for the crime where required, as with persecution. |2165| "[T]he significance and scope of the material participation of an individual in a JCE may [also] be relevant in determining whether that individual had the requisite mens rea" |2166|

695. The KHIEU Samphan Defence submits that an Accused can be found to have participated in a specific common purpose with criminal intent only when this purpose is intrinsically criminal. It submits that the Closing Order alleges a lawful objective, "a socialist political revolution in Cambodia", and that only after the founding of Democratic Kampuchea were criminal policies implemented. Thus the Defence argues that criminal intent cannot be inferred from mere participation in the regime. |2167| Similarly, the NUON Chea Defence submits that the criminal conduct must be inseparable from the common purpose. |2168|

696. These submissions are largely repetitive of preliminary objections made by the IENG Sary Defence. |2169| The Chamber dismissed these objections on 12 September 2011, finding that a common purpose must either have a crime as its objective or contemplate the commission of crimes as the means of achieving an objective. |2170| In the instant case, although the Co-Investigating Judges acknowledged that the common purpose was "not entirely criminal", they clarified that its implementation involved the commission of crimes. |2171| The Co-Investigating Judges also alleged that the Accused's acts and omissions show that they shared the intent that the crimes be committed through a common purpose resulting in, or involving, the commission of crimes. |2172| Accordingly, the Accused fail to demonstrate any error.

13.3. Planning

697. By 1975, planning was a form of individual criminal responsibility recognised in customary international law. |2173| Considering the senior positions held by the Accused, and that planning was recognised as a mode of liability in both customary international and Cambodian law by 1975, the Chamber finds that this mode of liability was foreseeable and accessible to the Accused. |2174|

698. To be held responsible for planning, an accused, alone or with others, must design criminal conduct constituting or involving a crime later perpetrated. |2175| The plan must precede and substantially contribute to the criminal conduct. |2176| An accused must intend, or be aware of a substantial likelihood of, the commission of a crime upon the execution of the plan. |2177|

13.4. Instigating

699. Instigating was also recognised as a form of individual criminal responsibility in customary international law by 1975. |2178| While the Khmer and French versions of Article 29 of the ECCC Law refer to incitement ("inciter"), the notions of instigation and incitement are considered synonymous. |2179| Considering the senior positions held by the Accused and that instigating was recognised as a mode of liability in both customary international and Cambodian law by 1975, the Chamber finds that it was foreseeable and accessible to the Accused. |2180|

700. To be held responsible for instigating, an accused must, through act or omission, prompt another to commit a crime. |2181| Liability may ensue through implicit written or other non-verbal prompting. |2182| Instigating does not require that an accused have authority over the perpetrator. |2183| The act or omission must precede and substantially contribute to, not merely facilitate, the criminal conduct. |2184| An accused must intend, or be aware of a substantial likelihood of, the commission of a crime as a result of the instigation. |2185|

13.5. Ordering

701. By 1975, customary international law recognised ordering as a form of individual criminal responsibility. |2186| Considering the senior positions held by the Accused and that ordering was recognised as a mode of liability in both customary international and Cambodian law by 1975, the Chamber finds that it was foreseeable and accessible to the Accused. |2187|

702. Ordering requires that an accused, in a position of authority de facto (in fact) or de jure (in law), instruct another person to commit a crime. No formal superior-subordinate relationship between the two is required. |2188| Responsibility may ensue where an accused issues, passes down or otherwise transmits an order, including through intermediaries. |2189| There is no requirement that an order be given in any particular form and the existence of an order may be proven through circumstantial evidence. |2190| The order must precede and substantially contribute to the commission of a crime. |2191| An accused must intend, or be aware of the substantial likelihood, that the execution of the order will result in the commission of a crime. |2192|

13.6. Aiding and Abetting

703. Customary international law recognised aiding and abetting as forms of individual criminal responsibility by 1975. |2193| The Chamber notes that the French version of Article 29 (new) of the ECCC Law equates "aiding and abetting" with the notion of "complicité". While the two share some common features, the Chamber has already determined that the phrase "aidé et encouragé" more clearly reflects the nature of aiding and abetting liability in customary international law and accords with the English and Khmer versions of the ECCC Law. |2194| Considering the senior positions of the Accused and that aiding and abetting were recognised as modes of liability in both customary international and Cambodian law by 1975, the Chamber finds that aiding and abetting liability was foreseeable and accessible to the Accused. |2195|

704. An aider or abettor must provide practical assistance, encouragement or moral support which has a substantial effect on the commission of a crime that is in fact committed. |2196| No evidence of a plan or agreement between the aider or abettor and the perpetrator is required. |2197| To be found guilty for aiding and abetting, an accused must know that a crime would likely be committed and that his conduct assists or facilitates the commission of a crime. |2198| Further, an accused must be aware of the essential elements of the crime committed by the perpetrator, but need not share the perpetrator's intent to commit the crime, including the specific intent to commit crimes such as persecution. |2199|

705. The KHIEU Samphan Defence raises three issues relating to the actus reus of aiding and abetting: (1) whether an accused may aid or abet by omission; (2) whether an accused's conduct must be specifically directed to facilitate the commission of a crime by the main perpetrator; and (3) whether liability may arise from assistance after the commission of a crime.

13.6.1. Aiding and Abetting by Omission

706. The KHIEU Samphan Defence submits that aiding and abetting requires an affirmative act. It argues that the application of disputed ICTY jurisprudence finding that aiding and abetting may be by omission would violate the principle of legality. |2200| The Chamber notes that, contrary to this submission, Nuremberg-era jurisprudence recognised that an accused may be held criminally liable for an omission which aids and abets the commission of a crime. |2201| Whether an omission aids or abets a crime is a matter to be determined on a case-by-case basis. |2202| This determination will likely turn on the position and authority of an accused. |2203| This submission is dismissed accordingly.

13.6.2. Specific Direction

707. The KHIEU Samphan Defence submits that a conviction for aiding and abetting may be entered only if the aid or support of an accused is "specifically directed" to facilitate the commission of a crime (commonly referred to as "specific direction"). |2204| It bases this submission, which contradicts the practice of the ECCC, |2205| solely on the Perišić Appeal Judgement. While this Chamber is not bound by the jurisprudence of the ICTY Appeals Chamber, it may rely, and has in the past relied, upon the jurisprudence of other international courts in determining the contours of criminal elements. |2206|

708. On 28 February 2013, the Perišić Appeals Chamber, by majority, held that the actus reus of aiding and abetting requires proof of specific direction. |2207| The majority further held that, in view of the fact that "specific direction establishes a culpable link between assistance provided by an accused and the crimes of principal perpetrators", consideration of specific direction must be explicit where the actions of an accused are geographically or temporally remote from a crime scene. |2208| The Perišić Appeals Chamber commenced its consideration of the issue with the Tadić Appeal Judgement of 15 July 1999, which stated that "[t]he aider and abettor carries out acts specifically directed to assist, encourage or lend moral support to the perpetration of a certain specific crime ... and this support has a substantial effect upon the perpetration of the crime." |2209| It then reviewed the ad hoc Tribunals' appellate jurisprudence on the subject, including the Mrkšić and Šljivančanin Appeal Judgement's statement that "the Appeals Chamber has confirmed that 'specific direction' is not an essential ingredient of the actus reus of aiding and abetting". |2210| Overall, this review led the Perišić Appeals Chamber majority to conclude that no judgement of the Appeals Chamber had to date found cogent reasons to depart from the definition of aiding and abetting liability adopted in the Tadić Appeal Judgement, which required proof of specific direction.

709. Following both the Perišić Appeal Judgement and the KHIEU Samphan Defence closing arguments in the present case, the ICTY Appeals Chamber issued the Šainović Appeal Judgement in which it unequivocally rejected the approach adopted in Perišić and confirmed that the prevailing law holds that "'specific direction' is not an essential ingredient of the actus reus of aiding and abetting". |2211| Finding that it was faced with earlier decisions of the ICTY Appeals Chamber that conflicted with the Perišić Appeals Judgement, |2212| the Šainović Appeals Chamber considered itself required to determine the correct approach. |2213| To this end it engaged in an extensive analysis of the jurisprudence of the ad hoc Tribunals and customary international law. The Šainović Appeals Chamber's analysis contains an in-depth review of post-World War II jurisprudence which is of particular relevance to the ECCC context, where it is necessary to determine whether specific direction formed part of aiding and abetting as it existed under customary international law between 1975 and 1979. |2214| The Šainović Appeal Judgement sets out, inter alia, case law from British military courts, French military tribunals, trials conducted under the terms of Control Council Law No. 10, and the Nuremberg Judgement. |2215| Based on its review, the Appeals Chamber came to the "compelling conclusion" that specific direction is not an element of aiding and abetting liability under customary international law and that the actus reus instead consists of "practical assistance, encouragement, or moral support which has a substantial effect on the perpetration of the crime". |2216|

710. The SCSL's Taylor Appeal Judgement, also rendered subsequent to the Perišić Appeal Judgement, similarly engaged in a convincing review of international jurisprudence and instruments, including those concluded before 1975, |2217| and determined that "the essential question is whether the acts and conduct of an accused can be said to have had a substantial effect on the commission of the crime charged". |2218| Based on the comprehensive surveys of jurisprudence and instruments contained in the Šainović and Taylor Appeal Judgements, this Chamber finds this position to be persuasive and an accurate reflection of the law as at 1975. The Chamber therefore finds no cogent reason to depart from its previous definition of aiding and abetting, and accordingly rejects the Defence's submission with respect to specific direction.

13.6.3. Assistance after the Fact

711. Finally, the KHIEU Samphan Defence submits that no causal link can exist between a crime and assistance provided after the commission of that crime. Thus it submits that one who assists after the fact cannot be liable for aiding and abetting a crime. |2219|

712. The ICTY Appeals Chamber has expressly held "that the actus reus of aiding and abetting a crime may occur before, during or after the principal crime has been perpetrated". |2220| The Trial Chamber considers that the ICTY approach reflects an understanding that an offer made before or during the commission of a crime, of assistance to be provided after the fact, may encourage or morally support the perpetrator and thereby have a substantial effect on the commission of a crime. |2221| This approach also appears to have been favoured in certain post-World War II jurisprudence. |2222|

713. This Chamber finds that the overarching requirement is that assistance, encouragement or moral support must have a substantial effect on the commission of a crime. |2223| Therefore, in the absence of any form of prior assistance, encouragement or moral support, assistance provided exclusively after the time of perpetration cannot satisfy such requirement. It is only when a substantial effect occurs that the necessary causal link exists. |2224| The Chamber need not identify in the abstract all conduct that may have a substantial effect on the commission of a crime. Rather, this is a matter of evidence to be assessed on a case-by-case basis. |2225|

13.7. Superior Responsibility

714. Superior responsibility, applicable to both military and civilian superiors, was recognised in customary international law by 1975. |2226| Considering the senior positions of the Accused and the fact that superior responsibility was recognised in customary international law by 1975, the Chamber considers that this mode of liability was accessible and foreseeable to the Accused. |2227|

715. For a superior to be held responsible for the criminal conduct of his subordinates, there must first be a superior-subordinate relationship between an accused and the person who committed the crime. The superior must have exercised effective control over the perpetrator, in the sense of possessing the material ability to prevent or punish the crimes. |2228| Second, the superior must have known, or have had reason to know, that a crime was about to be or had been committed by his subordinate. |2229| The superior must have knowledge that his subordinate committed a crime and not simply knowledge of the occurrence of a crime. |2230| A superior has reason to know that a crime has been, or was about to be, committed where he possessed information sufficiently alarming to justify further enquiry. |2231|

716. Finally, a superior must have failed to take the necessary and reasonable measures to prevent the crime or punish the perpetrator. |2232| Necessary measures are those appropriate for a superior to discharge his obligation, showing a genuine effort to prevent or punish. Reasonable measures are those reasonably falling within the material power of a superior. Necessary and reasonable measures must be considered on a case-by-case basis. |2233| The failure to prevent and the failure to punish arise at different points in time: a superior's responsibility to prevent a crime arises prior to its commission, while the responsibility to punish a perpetrator arises after the commission of a crime. |2234| The Chamber therefore dismisses the KHIEU Samphan Defence's submission that the actus reus of superior responsibility must precede a crime. |2235|

717. The NUON Chea Defence raises three issues relating to superior responsibility: (1) the status of superior responsibility in customary international law by 1975; (2) whether a superior must have a pre-existing duty to act established in domestic law at the relevant time; and (3) whether a superior is only responsible for the conduct of direct subordinates.

13.7.1. Superior Responsibility in Customary International Law

718. The NUON Chea Defence maintains that superior responsibility was not customary international law by 1975. In support of this submission, it largely adopts by reference arguments made by the IENG Sary Defence and IENG Thirith Defence on appeal against the Closing Order. |2236| The Pre-Trial Chamber has already addressed and dismissed these submissions. After reviewing Nuremberg-era jurisprudence, the Pre-Trial Chamber found that the doctrine of superior of responsibility, applicable to both military and civilian superiors, existed in customary international law between 1975 and 1979. |2237| The Trial Chamber adopts this reasoning and will therefore not revisit these submissions here.

719. The NUON Chea Defence further submits that the lack of clarity in the definition of superior responsibility is evidenced by the treatment of the relevant mens rea standards in American jurisprudence, namely between Yamashita and Medina. |2238| The Chamber notes that for a rule to be established in customary international law, the corresponding practice need not "be in absolute rigorous conformity with the rule". |2239| Accordingly, even if differences of opinion between the United States Supreme Court (Yamashita) and a military judge of first instance (Medina) were to indicate uncertainty in American jurisprudence concerning the contours of the mens rea requirement, |2240| inconsistency between two cases in a single state, without more, does not demonstrate that a mode of liability is not customary international law. |2241| The Defence therefore fails to provide any cogent reason to disturb the findings of the Pre-Trial and Trial Chambers that superior responsibility was established in customary international law by 1975. |2242|

13.7.2. Duty to Act

720. The NUON Chea Defence also submits that both military and civilian superiors must have had a legal obligation to act recognised in Cambodian domestic law at the relevant time. |2243| The Defence further contends that a civilian superior may only be held liable to the extent that his effective control over subordinates is similar to that of military superiors. |2244| The Chamber has already determined that a court may rely on customary international law where the characteristics of an international crime or mode of liability are not provided for in domestic law. |2245| In customary international law, as it existed by 1975, there was no prerequisite that a superior have a duty to act recognised in domestic law. |2246| Regardless of whether an accused is a civilian or military superior, the duty to act arises from a superior's effective control over his subordinate and his material ability to prevent or punish a crime. |2247| Whether a superior had effective control is a matter of evidence, not law, and thus must be assessed on a case-by-case basis. |2248|

13.7.3. Relationships of Subordination

721. Finally, the NUON Chea Defence contends that a superior may only be held responsible for the conduct of direct subordinates. |2249| On the contrary, Nuremberg-era jurisprudence established that a superior's responsibility is "not limited to a control of units directly under his command". |2250| Thus the Chamber reaffirms its prior finding that "superior responsibility may ensue on the basis of both direct and indirect relationships of subordination". |2251|

14. JOINT CRIMINAL ENTERPRISE

722. According to the Closing Order, the common purpose of the CPK during the DK era (17 April 1975 to 6 January 1979) was to implement rapid socialist revolution through a "great leap forward" and defend the Party against internal and external enemies, by whatever means necessary (Section 14.1). |2252| The Closing Order alleges that various persons shared and participated in this common purpose including members of the Standing Committee, such as NUON Chea and IENG Sary; members of the Central Committee, such as KHIEU Samphan; heads of CPK ministries, including IENG Thirith; Zone and Autonomous Sector secretaries; and heads of the Party Centre military divisions. |2253|

723. As limited in Case 002/01, the Closing Order alleges that JCE participants designed and implemented the following policies, among others, during the DK era:

    i. The repeated movement of the population from towns and cities to rural areas, as well as from one rural area to another ("Population Movement Policy"), insofar as this policy is relevant to movement of population (phase one) and movement of population (phase two) (Section 14.2); and

    ii. The targeting of former officials of the Khmer Republic, including both civil servants and former military personnel and their families ("Targeting Policy"), insofar as this policy is relevant to executions of former Khmer Republic officials at Tuol Po Chrey (Section 14.3). |2254|

14.1. Common Purpose

724. The Party leadership pursued a common purpose to liberate Cambodia and create a socialist society in four phases: party-building (September 1960 - January 1968) (Section 14.1.1), initiation of the armed revolution (January 1968 - March 1970) (Section 14.1.2), the democratic revolution (March 1970 - April 1975) (Section 14.1.3) and the socialist revolution (April 1975 - January 1979) (Section 14.1.4). |2255|

725. Of these, the Chamber has jurisdiction only over the socialist revolution phase, which began with the conclusion of the armed conflict between the Khmer Rouge and the Khmer Republic on 17 April 1975 and continued at least until 6 January 1979. The Chamber has further limited the applicable time period to between 17 April 1975 and December 1977 based on the temporal scope of the crimes forming part of Case 002/01. However, the policies and plans to implement the common purpose during this period originated prior to the temporal jurisdiction of the court. Further, the most significant participants joined the common purpose before 17 April 1975. Therefore, in order to have a clear understanding of the JCE's origin, the Chamber considers it necessary to address the evolution of the various policies and plans, as well as the stage at which various participants were introduced.

14.1.1. Phase One: Party-Building

726. Between 1958 and 1960, POL Pot, NUON Chea and others drafted the first Party Statute and began formulating the Party's political line, including the necessity of armed struggle, establishment of a socialist society, "democratic centralism" |2256| and a focus on self-reliance. |2257| At the First Party Congress in September 1960, TOU Samuth (Secretary), NUON Chea (Deputy Secretary), POL Pot, SON Sen, IENG Sary, VORN Vet, SAO Phim and others |2258| adopted a three point programme: fighting imperialism, 'liberating' the country and people, and conducting a successful revolution. |2259| In order to accomplish these goals, the Party determined that it would focus on the strategic force of the peasants in remote bases, pursue a political and armed struggle, be self-reliant, and struggle against the class system. |2260| The Congress decreed that foreign imperialists, their "lackeys" or henchmen and the "feudalists, capitalists and reactionaries" were all class enemies. |2261| Although the revolution would continue in the cities, the Congress decided that cities could not be used as bases: their geographical scope was small and enemies were everywhere. |2262| Finally, secrecy was necessary to avoid the leaders being discovered and the revolution ended before it even began. |2263| While continuing the political struggle, |2264| in 1961, the Party began to build secret defence units and educate members as to the need for armed struggle. |2265|

727. At the Second Party Congress in February 1963, POL Pot (now Party Secretary), NUON Chea (Deputy Secretary), IENG Sary, VORN Vet, ROS Nhim, Ta Mok, SAO Phim, likely SON Sen and others affirmed the line adopted at the First Party Congress, including political and armed revolution. |2266| Between 1963 and 1967, there were Standing and Central Committee meetings in the maquis, |2267| some attended by NUON Chea. |2268| During this party-building phase of the revolution, there were three priorities: increasing the people's movements; defensive revolutionary violence and armed struggle; and building revolutionary bases. |2269| IENG Sary later defined a base as a location where the people understood the revolution, hated the enemy, were self-sufficient and had a secret defence unit. |2270|

14.1.2. Phase Two: Initiation of the Armed Revolution

728. Following peasant rebellions and popular demonstrations, including at Samlaut in 1967, |2271| the government made scapegoats for the unrest out of KHIEU Samphan, HU Nim and HOU Youn, who all fled to the maquis where they were protected by the Party. |2272| KHIEU Samphan stated that he chose to join the Khmer Rouge, despite its image and its actions, because the Khmer Rouge fought for Cambodia's independence and sovereignty. |2273|

729. In late 1967 or early 1968, POL Pot, NUON Chea and others determined that the armed revolution should begin. |2274| In January 1968, NUON Chea convened a meeting in Phnom Penh with several Zone leaders, including SAO Phim, ROS Nhim and Ta Mok. Together, they discussed the need to begin armed struggle against those in power, namely the LON Nol faction which was then in charge of the government, in regions where they considered the latter were intensifying their "acts of suppression." |2275| Further, in September 1969 at an enlarged meeting of the Standing Committee in Ratanakiri, attended by NUON Chea, POL Pot, IENG Sary and KOY Thuon, |2276| it was decided that the CPK would mobilise all forces to fight against LON Nol and his right-wing faction of the government. |2277|

730. The Party would later celebrate 17 January 1968 as the anniversary of the RAK, the date when the secret defence units were re-organised into guerrilla units and attacked Bay Damram. |2278| From April 1968 to March 1970, the armed revolution was allegedly being fought in 17 of 19 provinces. |2279| POL Pot, NUON Chea and KHIEU Samphan later claimed that, prior to 18 March 1970, there were limited resources and Party forces were isolated. |2280|

14.1.3. Phase Three: The Democratic Revolution

731. POL Pot explained that of the Party's two tasks - struggles against imperialism and the class system - the struggle against the imperialists had to come first. |2281| In order to liberate the country from the imperialists, it was deemed necessary to build a resistance front to wage a democratic revolution, incorporating all factions opposed to the Khmer Republic, including capitalists, feudalists, monks and civil servants. |2282| Secrecy remained essential as there was not yet an orderly structure and it was feared that there could be consequences if the party and its leaders were known publicly. |2283| The Party therefore also required the assistance of those, such as NORODOM Sihanouk, with international influence and recognition among all factions in Cambodia to act as a united front. |2284| The overthrow of NORODOM Sihanouk on 18 March 1970 provided the Party leadership their opportunity. Indeed, the Party leadership claimed to have anticipated this event, preparing before March 1970 to wage the democratic revolution at the head of a united front. |2285| After POL Pot pledged Khmer Rouge support for FUNK, NORODOM Sihanouk formed GRUNK in May 1970. |2286| The Chamber has already found that FUNK/GRUNK was merely a facade; the Khmer Rouge in fact had control of the conduct of the democratic revolution and government of the liberated Zones. |2287|

732. In October 1970, the Central Committee, including POL Pot, NUON Chea, IENG Sary, Ta Mok, SAO Phim, KOY Thuon and other Zone secretaries, discussed a plan to liberate Cambodia from the American imperialists and Khmer Republic and confirmed the Party's policy of self-reliance and independence. |2288| Thereafter, from October 1970 until 1975, KHIEU Samphan, NUON Chea, POL Pot and other Party leaders met regularly concerning the ongoing revolution and administration of the liberated Zones. |2289| The Party, hiding behind the FUNK/GRUNK facade, |2290| fought against an enemy they defined as the American imperialists and "their lackeys", the "clique of traitors" in the LON Nol regime. |2291| During the war, the Party waged military and political struggle based on four main tactics: taking people from the enemy, cutting off the food supply line, destroying the enemy spy network and persuading the enemy's group to defect. |2292| The peasants remained the class that provided the main forces for the revolution. Capitalists were necessary allies, but could not be relied upon: "they follow[ed] the direction of the wind". |2293|

733. At the Third Party Congress in 1971, NUON Chea, POL Pot, KHIEU Samphan (now a candidate member of the Central Committee), IENG Sary, KOY Thuon, KE Pauk, Doeun, SAO Phim, VORN Vet, Ta Mok, ROS Nhim and others decided to change the name of the Party to the CPK, created the Special Zone around Phnom Penh and reaffirmed the Party line from the First and Second Congresses, including commitment to the class struggle. |2294|

734. After the Third Party Congress, in late 1971, 1972 and, in particular, 1973, the Party began implementing a collectivisation policy through mutual aid organisations and then, by establishing cooperatives in rural areas. |2295| In 1972, IENG Sary explained that, according to the political programme in the liberated Zones, agriculture was of primary importance. Measures were being taken to mobilise the peasants and free them from the old structures, thereby increasing production and advancing the collective movement. |2296| The "self-reliance guideline" required people to provide for their own needs and support the resistance. |2297| According to NUON Chea, over time, due to suffering and hardship, the party line concerning class struggle and hatred was engrained in the people in the liberated Zones. |2298| While fighting the imperialists under the cover, and with the assistance, of FUNK/GRUNK, the Party had also begun the socialist revolution in the liberated Zones. |2299|

735. In June 1974, the Central Committee, including members and candidate members POL Pot, NUON Chea, KHIEU Samphan, SAO Phim, KOY Thuon, Ta Mok, VORN Vet, ROS Nhim and SON Sen, |2300| pursuant to the principle of democratic centralism, planned the final offensive to liberate the country and evacuate the population of the cities to rural areas. |2301| KHIEU Samphan, POL Pot, NUON Chea, army commanders and/or Zone secretaries later met at B-5, west of Oudong, in particular in February and early April 1975, concerning the final offensive, movement of the population and other measures to be implemented upon victory. |2302|

14.1.4. Phase Four: The Socialist Revolution

736. On 17 April 1975, the Khmer Rouge succeeded in 'liberating' the country and the Party entered a new phase of the revolution: the socialist revolution. |2303| KHIEU Samphan attributed this success to the correct party line adhered to during prior phases of the revolution. |2304| The Party therefore based the policies and goals pursued during the socialist revolution on its experiences during the war and in the liberated Zones. |2305|

737. As expected by all those who were involved in the conflict, including the Khmer Rouge leaders themselves, the country had to face shortages of food and other resources, but the CPK leadership considered that the first priority was the need to secure Kampuchea from both internal and external threats. |2306| Thus, in order to save the country and ensure it moved quickly to the next steps of the revolution, the CPK leaders considered that radical policies should be implemented immediately. |2307| Further, in order to build a solid foundation, thereby warding off attacks by external enemies, the socialist revolution had to be fast. |2308| All people, both military and civilian, were mobilised rapidly to build and defend the country in an attempt to ensure the future security and well-being of the people through a socialist revolution. |2309| This Party line, both internally and externally, was based upon the principles of "independence-sovereignty", collectivism and self-reliance. |2310| In turn, the class system would be eliminated, |2311| no international aid would be accepted unless it was unconditional, |2312| and all embassies would be closed, at least temporarily. |2313| Further, the Party considered that it was essential to continue with a closed, secret approach |2314| in order to prevent enemy infiltration, |2315| and to build bases and resolve internal issues before foreigners could be welcomed. |2316| Open opposition to the party line was not tolerated. |2317|

738. Over the course of the DK era, Party leaders, including POL Pot in 1977, |2318| and 1978; |2319| NUON Chea in 1977 |2320| and 1978; |2321| IENG Sary in 1975, |2322| 1976, |2323| 1977 |2324| and 1978; |2325| and KHIEU Samphan in 1975, |2326| 1976, |2327| 1977 |2328| and 1978, |2329| in speeches, interviews and statements, publicly confirmed and endorsed the party line to rapidly build and defend the country through a socialist revolution based on the principles of secrecy, independence-sovereignty, self-reliance and collectivisation.

14.1.4.1. CPK Takeover and Interim Organisation of Power following Liberation

739. From 17 April 1975 to 25 April 1975, at the latest, while the evacuation of all cities was ongoing, Phnom Penh was under the direct control of military units under the command of Zone secretaries including SAO Phim, KOY Thuon, Ta Mok and VORN Vet. |2330| Consistent with the procedures followed throughout military campaigns between 1970 and 1975, whereby the senior leaders received reports and issued instructions to Zone leaders commanding the forces on the ground, the Zone secretaries commanding military units in control of Phnom Penh after liberation, sought and received instructions from POL Pot, NUON Chea, SON Sen and other senior leaders, in particular members of the Central Committee, at B-5. |2331| Further, the evacuation of Phnom Penh was supervised by a committee, created by the Central Committee in June 1974, chaired by SON Sen and including KOY Thuon and various Zone leaders. |2332|

740. Having all arrived in Phnom Penh by 25 April 1975, at the latest, |2333| NUON Chea, POL Pot, KHIEU Samphan, IENG Sary and SON Sen formed a Joint Leadership Committee. |2334| On a regular basis, along with various Zone and Autonomous Sector secretaries and others, they met to discuss policies and plans to build and defend a self-reliant, independent and socialist country, such as the establishment of cooperatives. |2335|

741. At this time, and throughout the DK era, Zone and Autonomous Sector secretaries, who answered directly to or formed part of the organisations constituting the Party Centre, attended meetings at which the policies and plans of the Party were discussed and decided upon. Between April 1975 and December 1977, they included ROS Nhim (Northwest), SAO Phim (East), Ta Mok (Southwest), CHOU Chet (West), KOY Thuon (Central (old North) Zone, until 1975), KE Pauk (Central (old North) Zone, from 1975), CHANN Sam (North Zone, from its establishment around 1977), MEN San (Northeast), |2336| BOU Phat (Sector 103, until its incorporation into the North Zone around 1977), YONG Yem (Sector 505, until 1976), and BORN Nan (Sector 505, from 1976). |2337|

742. Between 25 and 27 April 1975, KHIEU Samphan allegedly chaired a Special National Congress, |2338| which resolved that FUNK/GRUNK structures would be maintained for the time-being and emphasised that no foreign military bases would be tolerated in Cambodia. It also declared the new government's commitment to the construction of a classless society, free from exploitation, in which all would strive to build and defend the country. |2339| Although the Chamber has not been convinced on the evidence that this Congress in fact took place, the Chamber is satisfied that the reported resolution, which closely resembled the DK Constitution, |2340| represented the political line decided by the CPK.

743. Over the course of about 10 days in May 1975, POL Pot, NUON Chea, KHIEU Samphan and others, including representatives from all Zones, met at the Silver Pagoda, where reasons justifying the evacuations of the cities were provided and priority was given to the need to rapidly build and defend the country through the creation of cooperatives and the construction of dams and canals. |2341| Thereafter, between approximately 20 and 25 May 1975, NUON Chea, POL Pot, KHIEU Samphan, IENG Thirith, SON Sen and others attended at least one meeting either at the Olympic Stadium or the Khmer-Soviet Technical Institute. NUON Chea, POL Pot and others instructed representatives from all military units and all District, Sector and Zone secretaries on the organisation of cooperatives, elimination of private property, prohibition of currency and markets, and building of dams and canals. |2342|

744. Between June and August 1975, all leaders were in Phnom Penh, organising and setting up their respective ministries and offices. |2343| These offices and ministries acted under the direction of the Standing Committee. |2344| With essential offices and ministries in place, the Party leadership accelerated the pace of its efforts to build and defend the country, and advance the class struggle. |2345|

745. Beginning around August 1975, the Standing Committee, consisting of full-rights members NUON Chea, POL Pot, IENG Sary, SAO Phim, Ta Mok VORN Vet (either a full-rights or candidate member) and SON Sen (a candidate or alternate member only), would meet about once a week, and more frequently in times of emergency. |2346| KHIEU Samphan also attended Standing Committee meetings on a regular basis. |2347| In late August 1975, the Standing Committee visited Battambang and Pursat Provinces (Northwest Zone) receiving and assessing reports in the various Sectors concerning the situation of the people, enemies, military, agriculture, and industry. |2348| Thereafter, the Standing Committee decided to transfer between 400,000 and 500,000 people to Battambang and Pursat (Northwest Zone). Noting that "horrible elements" existed among the 'New People', the Standing Committee considered that the cooperatives were meant to "absorb" the 'New People' and ordered continued "vigilance" against "no-good elements".

746. The report concerning the Standing Committee's visit to the Northwest Zone does not indicate who attended. The Chamber notes however that NUON Chea was present in Cambodia in late August 1975, had ultimate decision-making authority, was a long-standing member of the Standing Committee, and played a central and ongoing role in the development of Party policy. |2349| Although there is no evidence that NUON Chea travelled with other members of the Standing Committee to the Northwest Zone in August 1975, the Chamber is satisfied that at the least he participated in developing and deciding upon the plans and policies reflected in the Standing Committee Report which followed this visit.

747. On the other hand, KHIEU Samphan was traveling to China and North Korea in late August 1975 when the Standing Committee visited the Northwest Zone. |2350| There is no evidence that he took part directly in the planning that culminated in decisions issued in late August 1975. However, considering his economic authority, regular attendance at Standing Committee meetings and other organs of the Party Centre, and ongoing participation in developing Party policy throughout the democratic and socialist revolutions, the Chamber is satisfied that soon after his return to Cambodia he was notified of the visit, the observations made and the plans made by the Standing Committee in late August 1975.

748. A September 1975 policy document addressed the importance of stimulating "mass movement in implementing the agricultural line of the party" and stressed that in some places where people were assembled, "they have actively produced food day and night, not thinking of the rain or the wind." It also noted that people were "striving and working hard, fifteen hours a day" and that this was "having an impact on their health." The document clearly identifies and underlines the need to build dams, dikes and canals, including in large groups and by hand while awaiting machinery or tools to become available; the three tonnes per hectare production target; the need to export rice to raise capital; the shortages of medicine and food, especially affecting the 'New People'; the planned re-location to Battambang and Pursat (Northwest Zone), Preah Vihear (Sector 103) and Kampong Thom (Central (old North) Zone); the involvement of the Commerce Committee in planning the movement of hundreds of thousands; and the need to reward the 'Old People', as the 'New People' could not be "guaranteed". |2351| This document does not name its authors or those responsible for the plans and policies it sets out, and nor does it address when these plans and policies were decided.

749. However, the document's stated purpose was to examine implementation of the party line to build the country. It also provided further particulars and instructions as to population movements and conditions in the countryside. |2352| According to KHIEU Samphan, the Central Committee's general purpose was to conduct such analysis and issue such instructions. |2353| IENG Sary confirmed that he was present at a September 1975 meeting of Party leaders, including KHIEU Samphan, POL Pot, NUON Chea, SAO Phim, SON Sen, Ta Mok, VORN Vet, ROS Nhim, KOY Thuon and a number of military commanders, at which defence, agriculture, "the water problem" and industry were discussed. |2354| Expert Philip SHORT also wrote of a mid-September Central Committee meeting addressing agriculture, social affairs and defence matters, although his source for this statement is unclear. |2355| Further, the October-November 1975 issue of Revolutionary Flag indicates that the "Centre Party Congress" had already unanimously decided upon the three tonnes per hectare before November 1975, |2356| a production target specifically mentioned in the September 1975 policy document. Finally, Expert David CHANDLER explained that the overall economic plan which emerged in late 1975 and led to movements between rural areas, particularly in early 1976, was a product of the collective leadership of the Centre, "centred at some point in the Central Committee". |2357| The Chamber is therefore satisfied that there was a meeting of the Party leadership in early September 1975 concerning the economic policies later reflected in the September 1975 policy document. Noting his central decision-making role throughout the DK era and long-standing membership of the Standing and Central Committees, |2358| the Chamber finds that NUON Chea was present at this meeting.

750. In relation to KHIEU Samphan's presence, the Chamber notes that he had returned to Cambodia from a trip to China and North Korea by 9 September 1975. |2359| IENG Sary himself claimed that he attended this meeting. As he was reported to be attending a reception in New York the evening of 6 September 1975, even had he left the next day, he would not have arrived in Cambodia until 8 September 1975. |2360| The Chamber also notes that IENG Sary was reported as being in Paris by, at the latest, by 17 September 1975. |2361| Therefore, the Chamber is satisfied that the meeting would have taken place between 8 September 1975 at the earliest and 17 September 1975 at the latest. Accordingly, the Chamber is unable to conclude with absolute certainty that the meeting took place after KHIEU Samphan returned to Cambodia on 9 September 1975 and that he had the opportunity to attend.

751. However, the Chamber recalls its findings concerning KHIEU Samphan's education and experience in economics, as well as the important economic role he played throughout the DK era. |2362| Indeed, KHIEU Samphan explained to the Chamber that he was generally invited to attend meetings of the Centre concerning development of the country. |2363| The Chamber has already found that he attended meetings in June 1974 where urban evacuations were discussed, as well as in late April and May 1975 where other economic policies, including the establishment of cooperatives, were addressed. |2364| The Chamber therefore finds that KHIEU Samphan, a candidate member of the Central Committee in September 1975, did take part in the development of the plans reflected in the September 1975 policy document.

752. On 9 October 1975, the Standing Committee confirmed and assigned responsibilities to KHIEU Samphan (commerce, accounting and pricing, liaising with FUNK/GRUNK), NUON Chea (party affairs, social action, culture, propaganda and education, including training sessions and recruitment), IENG Sary (foreign affairs), POL Pot (general responsibility over the military and the economy), KOY Thuon (domestic and international commerce), SON Sen (Army General Staff and security), VORN Vet (industry, railroads and fisheries), IENG Thirith (culture, social action and foreign affairs) and YUN Yat (propaganda and education). |2365| The Standing Committee also affirmed that the general line was to build and defend the country, and to organize the force of the masses. |2366|

753. The October-November 1975 issue of Revolutionary Flag magazine reported that the First Nationwide Economics Congress, attended by "economic cadres", mandated that all would labour to rapidly build and defend the country, achieving a modern agricultural economy within 10-15 years; confirmed the 1976 production target of three tonnes per hectare; determined that struggle against the imperialists and "their lackeys" remained necessary; encouraged the advancement of the class struggle and the expansion of cooperatives; and instructed that all manpower should be organised for consecutive projects on a seasonal basis. |2367| While there is no evidence other than an issue of Revolutionary Flag indicating that this Congress actually took place, the Chamber notes that the magazine explained that the plans and policies concerning the production target of three tonnes per hectare adopted during the alleged Congress had been decided upon and endorsed by the "Centre Party Congress". |2368| The Chamber also considers that the resolution of the First Nationwide Economics Congress on this matter closely reflects the contents of the September 1975 policy document. Considering its findings above concerning the series of meetings beginning, at the latest, in May 1975 and continuing until late 1975, the Chamber is satisfied that resolution later published as a result of this alleged First Nationwide Economics Congress represented the policy adopted by the Party leadership and KHIEU Samphan.

14.1.4.2. Codifying the Party Line

754. On 14 December 1975, KHIEU Samphan allegedly chaired a National Congress at which he was reported to have presented the new DK constitution. KHIEU Samphan's reported speech emphasised, among other things, that all people could work collectively either in the factories or fields. |2369| The DK Constitution, which resembled the resolution of the Special National Congress reportedly held in April 1975, |2370| codified the party line guaranteeing a classless society in which the people would strive to increase agricultural production, and eventually industry, for the construction and defence of the country. All policies were based on the principles of self-reliance, independence and collectivisation. The DK Constitution also called for the election of a National Assembly to appoint the State Presidium and government which would replace GRUNK. |2371|

755. At the CPK's Fourth Party Congress in January 1976, |2372| the Party leadership appointed KHIEU Samphan a full rights member of the Central Committee |2373| and adopted a slightly amended statute. This statute declared that the CPK was the supreme organisation in Cambodia, commanding all work in the socialist revolution. |2374| Any party member or party echelon which opposed the Party's organizational stances violated Party discipline and was subject to sanctions, including removal from duties and rejection from the Party. |2375| The Statute affirmed the need for class struggle, democratic centralism, vigilance against enemies and commitment to the principle of self-reliance. |2376| The political line codified in the DK Constitution and Party Statute was echoed in the CPK Youth League Statute, also adopted in early 1976. |2377|

14.1.4.3. Dissolution of GRUNK

756. After 17 April 1975 and before a new government could be inaugurated, |2378| the Party leadership had to decide the fate of various suspect FUNK/GRUNK officials, in particular NORODOM Sihanouk, PENN Nouth and others loyal to them.

757. The Party leadership had been warned by Chinese authorities that any rift between NORODOM Sihanouk and the Khmer Rouge would open the door to foreign intervention in Cambodia. |2379| NORODOM Sihanouk remained popular internationally and with the people of Cambodia. |2380| However, the Party leadership considered that if left abroad, NORODOM Sihanouk, PENN Nouth and their loyalists could not be controlled and might pose a threat to the socialist revolution. |2381| Accordingly, KHIEU Samphan announced, in August 1975, that GRUNK diplomats who assisted the resistance abroad would be recalled to spend a year in the countryside before being given new appointments. |2382| On 2 November 1975, the Standing Committee, at a meeting attended by POL Pot, NUON Chea, IENG Sary, VORN Vet, SON Sen, Doeun, KHIEU Samphan and others, decided that NORODOM Phurissara, a GRUNK minister deemed loyal to NORODOM Sihanouk, could not be trusted and action against him was therefore necessary. |2383| Former GRUNK ministers loyal to NORODOM Sihanouk and/or recalled from overseas, including NORODOM Phurissara, were later re-educated at Boeng Trabek, some disappearing. |2384| KHIEU Samphan conducted political indoctrination sessions of returned intellectuals and officials in late 1975 and 1976 at K-15. During these sessions, he justified urban evacuations which he claimed had destroyed private property and prevented starvation and lectured that knowledge originating from education by the colonialists and imperialists had to be destroyed. |2385|

758. In mid-August 1975, a delegation, headed by KHIEU Samphan and including IENG Sary (now Deputy Prime Minister for Foreign Affairs) and IENG Thirith, travelled to China and then North Korea to negotiate NORODOM Sihanouk's return. |2386| On 9 September 1975, NORODOM Sihanouk returned to Phnom Penh, accompanied by KHIEU Samphan. |2387|

759. The Standing Committee assigned KHIEU Samphan to continue as the liaison between the CPK and NORODOM Sihanouk. |2388| In fulfilling this task, KHIEU Samphan accompanied NORODOM Sihanouk on visits to the countryside. |2389| KHIEU Samphan was pleased with the irrigation and agriculture projects completed with the people's bare hands and attempted to demonstrate the benefits and success of these efforts to NORODOM Sihanouk. |2390| Indeed, KHIEU Samphan was willing to help the regime in whatever way he could and refrain from doing anything that might hinder the movement. |2391| NORODOM Sihanouk refused KHIEU Samphan's overtures, affirming his previously expressed desire to resign as head of state. |2392|

760. On 13 March 1976, POL Pot, KHIEU Samphan, NUON Chea, IENG Sary, VORN Vet, SON Sen and Doeun attended a meeting at which the Standing Committee decided to accept NORODOM Sihanouk's resignation and thereby end "feudalism" in Cambodia. |2393| This decision was confirmed by the Central Committee on 30 March 1976. |2394|

761. On 2 April 1976, NORODOM Sihanouk publicly handed in his resignation and on 4 April 1976, it was accepted by the government. |2395| KHIEU Samphan announced the retirement of NORODOM Sihanouk on the radio. |2396| On 6 April 1976, PENN Nouth handed in the resignation of his government, GRUNK. |2397|

762. The terms of NORODOM's Sihanouk's retirement had already been decided at a Standing Committee meeting on 11 March 1976. After hearing KHIEU Samphan's report on NORODOM Sihanouk's decision to resign, POL Pot summarised these terms: NORODOM Sihanouk was not authorised to leave the country, a wire should be sent to his children asking them to return immediately to Cambodia so that the problem could be resolved "cleanly", and meetings between NORODOM Sihanouk and foreign diplomats should cease immediately. |2398| Nevertheless, PENN Nouth and NORODOM Sihanouk remained useful tools of the Khmer Rouge, |2399| visiting the countryside to boost the morale of the people and publicly expressing their support for the Khmer Rouge regime. |2400|

14.1.4.4. Democratic Kampuchea

763. On 3 February 1976, HU Nim announced the election of the People's Representative Assembly ("PRA") to be held on 20 March 1976. |2401| On 8 March 1976, POL Pot, NUON Chea, KHIEU Samphan and Doeun attended two Standing Committee meetings concerning the upcoming PRA elections. POL Pot declared that the PRA would be "worthless". |2402| However, its election was deemed necessary. The Central Committee considered that the country's international reputation would improve after the world had the opportunity to observe its constitution and elections. |2403|

764. Following the 20 March 1976 elections, the PRA was elected for a five year term and tasked to designate the State Presidium, government and Court of Justice during its first session. |2404| On 30 March 1976, before the first PRA session, the Central Committee declared that the government was an organisation subordinate to the Party and appointed some members of the new government. |2405| The Central Committee also decided which Zone and Centre organs would have the power to "smash" both inside and outside the Party ranks; established a regime of weekly reporting to Office 870 on matters related to the goal of three tonnes per hectare; affirmed that the goal of the revolution was to put power in the hands of the peasants; and announced that model Districts which achieved three tonnes per hectare and had arranged their labour force "well and properly" would be rewarded with the presentation of an honorary flag with the inscription "great leap forward." |2406| The Central Committee designated holidays and celebrations, including the Independence Day celebrations (15-17 April) intended to attack imperialism, highlight the resulting sacrifices made by the people, praise the revolutionary army and "incit[e] resolution to build and defend the country in a great miraculous leap". |2407|

765. KHIEU Samphan, NUON Chea, POL Pot, IENG Thirith and other leaders attended the first session of the PRA held from 11 to 13 April 1976. KHIEU Samphan gave the inaugural speech on 11 April 1976 claiming that fair and honest elections had been held and endorsing policies regarding work-sites, cooperatives and the ongoing class struggle. |2408| The Chamber has already found that the elections were a facade, like the Assembly they would elect. |2409|

766. The PRA then formally appointed the new government: KHIEU Samphan became president and SAO Phim and ROS Nhim were appointed vice-presidents in the State Presidium. |2410| KHIEU Samphan later explained that he accepted the presidency due to a sense of patriotic duty: he did not want to weaken the movement. |2411| POL Pot was appointed prime minister; NUON Chea, Chairman of the PRA Standing Committee; IENG Sary, Deputy Prime Minister of Foreign Affairs; SON Sen, Deputy Prime Minister of National Defence; VORN Vet, Deputy Prime Minister of Economics; HU Nim, Minister of Information and Propaganda; THIOUNN Thioun, Minister of Health; IENG Thirith, Minister of Social Action; TOCH Phoeun, Minister of Public Works; and YUN Yat, Minister of Culture, Training and Education. |2412| Committees were also assigned to support the Office of the Deputy Prime Minister of Economy including Agriculture, Industry, Commerce, Communications and Rubber Plantations. |2413| The Standing Committee appointed members to these committees during a meeting held between 19 and 21 April 1976. MEY Prang was head of the Communications and Transportation Committee, overseeing the Train Unit. |2414| The Standing Committee also determined that it had to visit the bases in May 1976 to "push" early season rice production, in particular in the Northwest, Central (old North), Southwest and Siem Reap (Sector 106). |2415|

767. At the celebrations marking the anniversary of the 17 April 1975 victory, KHIEU Samphan announced the new government's resolve to defend national independence and concentrate on national reconstruction. |2416| At the first Council of Ministers meeting, on 22 April 1976, POL Pot affirmed the government's obligation to adhere to the Party line. |2417| At the second Council of Ministers meeting on 31 May 1976, POL Pot praised the achievements of the socialist revolution including the creation and expansion of cooperatives and the collection of thousands of forces at various worksites where irrigation projects were underway. |2418| POL Pot also noted weakness including shortages of food, disease and inadequate shelters, in particular for "mobile youth units" |2419| and that the "railways sector" organised movement in cooperation with the bases in order to use resources effectively. |2420| MEY Prang later reported on transportation by train, noting prior experience with transporting large quantities of "commodities". |2421|

768. Meanwhile, the Standing Committee continued meeting concerning implementation of the Party's political line and administration of the country. Minutes of meetings held between August 1975 and June 1976, |2422| and indicating attendance of various party leaders, were put before the Chamber. The Standing Committee and at times other senior leaders who were not members of the committee including KHIEU Samphan, IENG Thirith and various Zone and Autonomous Sector secretaries, considered and decided upon matters relating to propaganda and foreign affairs; |2423| commerce and trade; |2424| national defence; |2425| and economic matters, including agricultural production and industry, and social affairs. |2426|

769. IENG Sary also claimed that the Party leadership met in 1976, deciding that people had to be separated according to their class, |2427| a policy that continued throughout the period relevant to Case 002/01. |2428| POL Pot and KHIEU Samphan both confirmed in early 1978 that the Party leadership still viewed any person originating from a class other than that of the peasants as suspect. |2429|

770. In November 1976, the Party held its Second Nationwide Economics Conference. After analysing the successes and failures in 1976, a representative of the "Party Organisation" set out the 1977 plan, including the production target of three tonnes per hectare and six tonnes in those regions that could produce both a rainy and dry season rice crop. The Party leadership intended that manpower be sent first to areas where there was sufficient water and fertile land and whenever there was manpower free, it was to be assigned to build dikes and canals. The people were to be divided according to their class, to ensure that 'New People', who could not be trusted, were assigned secondary tasks. |2430|

771. The Chamber is satisfied that the "Party Organisation" which decided upon this plan were members of the Party Centre, including members of the Standing and Central Committees. |2431| The plan analysed the successes and failures in 1976, giving instructions to correct failures and improve conditions in the countryside. According to KHIEU Samphan, such analyses and instructions were generally made by the Central Committee. |2432| Considering their responsibilities, particularly in relation to the economy, |2433| and their attendance at Standing and Central Committee meetings in 1975 and 1976 at which the 1976 plan was decided and affirmed, and elements of the 1977 plan established, |2434| the Chamber is satisfied that NUON Chea and KHIEU Sampan took part in the development of the 1977 plan which was delivered in November 1976 by a representative of the "Party Organisation".

772. In addition to attending meetings of the Centre, Zone and Autonomous Sector secretaries and officials, such as ROS Nhim, also came to Phnom Penh on a regular basis to meet with Party leaders, including NUON Chea. |2435| Party leaders, including POL Pot, KHIEU Samphan and NUON Chea, led education sessions in Phnom Penh, beginning soon after 17 April 1975 and continuing throughout the DK era. They lectured Zone, Sector and District officials, as well as ordinary cadres, about the identification and elimination of enemies, continuation of the armed struggle, establishment of cooperatives, building of dikes and canals, and completion of work and production quotas. |2436|

773. Party leaders, including POL Pot, NUON Chea, KHIEU Samphan and IENG Thirith, also traveled to the Zones to observe the conduct of the socialist revolution and meet with Zone leaders and officials. |2437| According to Witness SAUT Toeung, NUON Chea would travel to Battambang to meet with ROS Nhim every three to four months. |2438| Further, several surviving telegrams from 1977-78 demonstrate that Zone secretaries and officials, such as ROS Nhim and SAO Phim, reported to Angkar or the leadership, copying POL Pot, SON Sen, VORN Vet, NUON Chea and/or Office 870, on former Khmer Republic officials and other enemy situations, and fighting on the border with Vietnam. They also asked for instructions. |2439|

774. While in late 1975 and early 1976 the CPK was increasingly faced with international reports of human rights violations, DK authorities were also engaged in diplomatic relations with communist, neighbouring and non-aligned countries and organisations. |2440| However, Party control in Cambodia was not yet deemed firm enough to open the country. |2441| In late 1977 and 1978, faced with an escalating conflict with Vietnam, the Party determined that this would have to change, and that Cambodia could not remain isolated internationally. |2442|

775. On 27 September 1976, Prime Minister POL Pot was provisionally relieved of duties allegedly for health reasons, and NUON Chea served as interim Prime Minister. |2443| In a speech broadcast on Phnom Penh radio on 17 September 1977, POL Pot re-emerged as Prime Minister and CPK Secretary and for the first time, publicly confirmed the existence of the CPK and the party line to build and defend the country. |2444|

776. During the Fifth Party Congress between 1 and 2 November 1978, the Party indicated that agriculture, economics and defence continued to be its main focus. |2445|

14.1.5. Legal Findings

777. The Chamber is therefore satisfied that, at the latest, by June 1974 until December 1977, there was a plurality of persons who shared a common purpose to "implement rapid socialist revolution through a 'great leap forward' and defend the Party against internal and external enemies, by whatever means necessary". |2446| Members of the Standing and Central Committees, government ministers, and Zone and Autonomous Sector secretaries, including NUON Chea, KHIEU Samphan, |2447| POL Pot, |2448| IENG Sary, |2449| SON Sen, |2450| VORN Vet, |2451| Ta Mok, |2452| SAO Phim, |2453| ROS Nhim, |2454| KOY Thuon, |2455| KE Pauk, |2456| CHANN Sam, |2457| CHOU Chet, |2458| BOU Phat, |2459| YONG Yem, |2460| BORN Nan, |2461| IENG Thirith |2462| and MEY Prang, |2463| were part of this group with the specified common purpose. The evidence establishes that this common purpose to rapidly build and defend the country through a socialist revolution, based on the principles of secrecy, independence-sovereignty, democratic centralism, self-reliance and collectivisation, was firmly established by June 1974 and continued at least until December 1977.

778. This common purpose was not in itself necessarily or entirely criminal. The Closing Order, however, alleges that participants implemented the common purpose through the Population Movement Policy (Section 14.2) and Targeting Policy (Section 14.3) which resulted in and/or involved crimes. |2464|

14.2. The Population Movement Policy

779. According to the Closing Order, the objectives of the Population Movement Policy included fulfilling the labour requirements of the cooperatives and worksites, providing food supplies to the people, protecting the population from security threats, and depriving the city dwellers and former civil servants of their economic and political status. |2465| The CPK implemented the Population Movement Policy in three phases between 17 April 1975 and 6 January 1979 which constituted part of a wider pattern of population movements. |2466| Only phase one, beginning on 17 April 1975, and phase two, beginning in the latter part of 1975 until 1977, are included within the scope of Case 002/01. |2467|

780. The Co-Investigating Judges charged the Accused, among other crimes, with extermination in connection with movement of population (phases one and two), |2468| and the other inhumane act of enforced disappearances in connection with phase two. |2469| However, the Closing Order, as limited in Case 002/01 to the implementation of the Population Movement Policy, does not allege that the Accused committed through a JCE the crime of extermination or the other inhumane act of enforced disappearances in the course of phases one and two. |2470| The Chamber will not therefore consider these two crimes in its findings below regarding a JCE.

781. The Chamber notes that the Closing Order also explicitly links the commission of a number of crimes during movement of population (phases one and two) to the implementation of the Targeting Policy. |2471| However, taking into account the scope of Case 002/01 following the severance order, the Chamber limited examination of the Accused's responsibility for the Targeting Policy to the execution of former Khmer Republic officials at Tuol Po Chrey. |2472| Accordingly, the Chamber will consider the Accuseds' responsibility for crimes committed through the JCE during movement of population (phases one and two) (other than extermination and the other inhumane act of enforced disappearances) only with regard to the implementation of the Population Movement Policy. In this regard, the Chamber emphasises that one of the objectives of the Population Movement Policy was depriving the city dwellers and former civil servants of their economic and political status. |2473|

14.2.1. Overview

782. The Party leadership planned to build and defend the country by mobilising all forces to focus on agriculture, eventually transforming Cambodia into a modern agricultural economy and later, an industrial state. |2474| Based on the principle of self-reliance, priority was given to building irrigation projects, |2475| expanding the rice fields, |2476| and developing those industrial activities that served the development of agriculture. |2477| Resulting agricultural exports, particularly those between late 1975 and 1977, would secure the capital necessary to build and defend the country. |2478| Until that time, without adequate resources or tools, the only capital at the disposal of the Party leadership to reach this goal was the people. |2479|

783. KHIEU Samphan explained that, in order to build the country quickly, solve food shortages and produce surplus rice allowing the country to transform into an industrialised state, the people had to be coerced to join the cooperatives. |2480| In his doctoral thesis, he wrote that it was necessary for some of those the Khmer Rouge would later label as 'New People' (including landlords, retailers and usurers) to be driven from their unproductive activities to participate in production. |2481| He also argued that "methodical organisation of the peasant force, into mutual aid teams and then into cooperatives", would increase productivity, opening up new land and improving irrigation. |2482| Eventually, KHIEU Samphan believed the people would become willing participants in the socialist revolution. They would see the fruits of their labour and accept the part they played, all as peasants, in defending and re-building Cambodia. |2483|

784. Further, by displacing the people, enemy networks would be separated, particularly those embedded among the always suspect 'New People'. Rebellion and/or foreign interference could thus be averted. |2484| During movements, as well as at their destinations in cooperatives and work-sites, the 'New People' could be reeducated and class divisions could be erased, while all worked to achieve the Party's production targets. |2485| 'New People' could not be trusted until they underwent struggle and hardship in the socialist revolution, learning how to farm and work, and their views were aligned with that of the Party. |2486|

785. Once evacuated, people were hungry and often without shelter. Food shortages were a country-wide problem, |2487| except at the Party Centre where the leadership appeared to be well-fed throughout the DK era. |2488| The situation especially affected evacuees. |2489| NUON Chea and KHIEU Samphan acknowledged that the Party was aware that the people would sacrifice and face hardship. As a result, both during evacuations and thereafter, they acknowledged that many suffered or even died due to illness or starvation. |2490| KHIEU Samphan later explained that the Khmer Rouge leadership was at an impasse: if there were no evacuations, people would die; if there were evacuations, people would still die. |2491| NUON Chea and KHIEU Samphan both believed that the priority was building and defending the country. Only after the goals of the revolution - an independent, self-reliant and socialist country - were achieved could human rights be guaranteed. |2492|

786. Below, the Chamber addresses the policies specific to evacuation of the cities (Section 14.2.2) and movement of people between rural areas (Section 14.2.3). These policies originated in, and were based upon, the Party's experience before 1975. |2493| The Chamber has already found that, before 17 April 1975, the Party had a policy to evacuate towns and cities. |2494|

14.2.2. Evacuation of Cities

14.2.2.1. Policy

787. The Party leadership, including POL Pot and NUON Chea, viewed cities as a threat: there were many enemies in the cities, which were the headquarters of the ruling class and its "apparatus of oppression". |2495| In speeches, KHIEU Samphan endorsed this suspicion and distrust, |2496| later confirming that this was the Party line throughout the revolution. |2497| Thus the Khmer Rouge indoctrinated cadres and people in the bases to be hostile towards, and suspicious of, city people. |2498| As a result, hatred and distrust of 'New People' was engrained. |2499| These feelings were encouraged and lasted throughout the DK era. |2500|

788. In 1974, and then again in February and April 1975, the Party leadership decided that the forced transfer of the population of the cities was its first priority during the socialist revolution phase following the liberation of the country. |2501| The plan did not make any provision for the well-being or the health of those being moved, in particular the vulnerable. NUON Chea explained that the Party leadership did not have time to consider special evacuation measures for hospital patients. |2502| In any event, he claimed the Party leadership believed that the evacuation of at least 2 million people could be adequately managed because sick people and patients were assisted and those who had cars or carts could use them as long as they left Phnom Penh. |2503| The underlying rationale for the forced movement of the inhabitants of urban centres was discussed and disseminated in Party publications and meetings: in particular, to identify enemies among the 'New People', re-educate the 'New People', and organise and allocate a work force to focus on agriculture and infrastructure priorities. |2504| By evacuating the people, the Party leadership believed it had preserved revolutionary achievements, vanquishing the capitalist and feudalist classes. |2505|

14.2.2.2. Justifications

789. Based on experiences evacuating people between 1970 and 1975, POL Pot believed that the forced movement of inhabitants of urban areas were the only solution to the alleged, perceived and/or anticipated problems upon the liberation of Phnom Penh and other cities. |2506| IENG Sary, |2507| KHIEU Samphan, |2508| NUON Chea |2509| and POL Pot |2510| claimed that Phnom Penh and other urban centres were evacuated because refugees had increased the urban population dramatically by April 1975, there were resulting shortages of food, and there were no means of transporting food into the cities. They also asserted that enemy plots to overthrow the Khmer Rouge relied on the city population remaining where it was. If city people were not moved, then the food problem would not be solved and they, agitated by foreign agents, would rebel; |2511| LON Nol soldiers and foreign agents undercover among the city people would seize any opportunity to rise up; |2512| and the influence of the old regime and cities would corrupt the Khmer Rouge cadres. |2513| NORODOM Sihanouk claimed that when he expressed his readiness to return to Phnom Penh on 17 April 1975, KHIEU Samphan replied that there was an epidemic in Phnom Penh which obliged the Khmer Rouge to evacuate the people to the countryside. |2514|

790. The Chamber has already dismissed these claimed justifications, specifically relating to the forced evacuation of Phnom Penh. |2515| The Chamber is also satisfied that these justifications do not demonstrate that the policy to evacuate cities and towns was based on civilian security or military necessity. The policy to evacuate cities forcibly, using deception, |2516| was taken pursuant to the Party's long-standing political line, focusing on agricultural production and based on the principles of self-reliance and collectivisation. |2517| The policy was not a reaction to any particular situation and was not proportionate or necessary, as demonstrated by the consistent and increasing pattern of transfers of city dwellers to the countryside implemented by the Khmer Rouge. |2518|

14.2.2.3. Pattern

791. One refugee claimed that, as early as 1972, Khmer Rouge forcibly transferred people seized or captured in areas controlled by the LON Nol regime to work in the rice fields in the liberated Zones. |2519| Between 1973 and 17 April 1975, people were forcibly evacuated from Kratie, Banam, Oudong, Kampong Cham, |2520| locations in Battambang, |2521| Svay Rieng |2522| and Prey Veng. |2523| During offensives on Phnom Penh, the Khmer Rouge forcibly moved residents of areas as they captured them, including those living near National Road No. 1 between Neak Loeung and Phnom Penh. |2524|

792. On 17 April 1975, the Khmer Rouge liberated Phnom Penh. They immediately began to evacuate the entire population forcibly, including the sick, young and old. In the process, families were separated; people were beaten and shot; and little, if any, food, water or other accommodations were provided. Under these conditions, some evacuees either committed suicide or died from a combination of exhaustion, malnutrition and/or disease. Meanwhile, Khmer Republic officials were assembled or identified, including at checkpoints, arrested, some led away and others killed on the spot. |2525|

793. On and after 17 April 1975, people were also forcibly displaced from various provincial towns throughout Cambodia, including Kampong Speu, Takeo, Kampot, Sihanoukville (previously, Kampong Som), Kampong Thom, Pailin, Kampong Cham, Kampong Chhnang, Siem Reap, Poipet, Battambang and Pursat. |2526| By May 1975, all population centres along National Road No. 5 to the Thai border had been emptied of their inhabitants. |2527| By at least June 1975, all population centres along National Road No. 6 between Prek Dam and Siem Reap had also been forcibly displaced. |2528|

794. Most of these urban evacuations undertaken pursuant to Party plans and policy followed a consistent pattern: people were forcibly evacuated from cities and towns under false pretexts, without concern for their well-being or their health, subjected to acts of terror and violence, and taken to work-sites and cooperatives for re-education by labour and indoctrination. |2529| Immediately before, during or immediately after many of these evacuations, Khmer Republic officials were singled out for execution and arrest. |2530|

14.2.3. Movement between Rural Areas

14.2.3.1. Policy

795. Once evacuated from the cities and territories held by enemies or perceived enemies, the Khmer Rouge moved people within regions or from one region to another to allocate resources, according to their own estimates, based on labour requirements and production targets, as well as to advance the class struggle. |2531| Mobile units were used in each cooperative. This practice would continue until all cooperatives were able to provide their own labour force. |2532| The Party leadership believed that re-organisation of the labour force would address shortages of water and food, re-educate the 'New People', identify enemies among the ranks of the 'New People', and allow the Party to progress with its plan to evolve into a modern agricultural economy within 10-15 years and later into an industrial state. |2533|

796. In August 1975, the Standing Committee ordered that between 400,000 and 500,000 people be moved to Battambang Province (Northwest Zone). |2534| The Party leadership also ordered the movement of 20,000 to Preah Vihear (Sector 103) and others to Kampong Thom (Central (old North) Zone). |2535| It was decided that the less fertile areas in the over-populated Southwest, West and East Zones would provide the manpower for Sector 103, the Northwest and Central (old North) Zones. |2536| The production target was three tonnes of rice per hectare. |2537| Further, the CPK leaders considered that 'New People' had to be moved and separated as enemy agents were still mixed amongst them. |2538|

797. In late 1976, the Party set the new production target for 1977 at three tonnes per hectare and six tonnes per hectare in those areas that could support both a rainy and dry season rice crop. |2539| In the face of drought in 1977, the construction of dikes, canals and dams was of special importance. |2540| Further, the Party ordered that the people be classified into various categories, including "full rights" (base people from cooperative), "candidates" (base people who were well-off prior to 1975) and "depositees" (17 April people) to prevent any confusion in gathering and distributing labour. |2541|

798. Over the course of the DK era, Zone secretaries and officials reported to POL Pot, NUON Chea, VORN Vet, SON Sen, Doeun and/or Office 870 on population movements, sometimes requesting further instructions. |2542|

14.2.3.2. Justifications

799. Party leaders and publications suggested that movements between rural areas were undertaken on the basis of civilian security and military necessity. |2543| The Chamber has already dismissed this justification in relation to those movements included within the scope of movement of population (phase two). It has also found that regardless of the truth of these justifications, these transfers were neither proportional, nor necessary. |2544| The Chamber is also satisfied that these justifications and excuses do not demonstrate that there was a policy to move people between rural areas on the basis of civilian security or military necessity. The steady and pre-established nature of the policy demonstrates that it was not a contemporaneous reaction to any concern based on civilian security or military necessity raised by a particular situation and therefore could not have been tailored pursuant to the principles of necessity or proportionality. |2545| The unnecessary and disproportionate nature of the resulting evacuations is further demonstrated by a consistent pattern of conduct.

14.2.3.3. Pattern

800. From 1972, and possibly earlier, people were relocated within Khmer Rouge controlled territory in order to build and expand cooperatives, allocate labour forces depending on the season and separate them from the enemy. |2546| The Khmer Rouge organised mobile units, consisting of civilians and/or cadres who had been separated from their families, to assist in rice farming and infrastructure projects, such as dams, bridges and roads. |2547|

801. During the DK era, the Khmer Rouge continued the same types of movements for the same reasons, but on a larger scale. Many of those displaced from the cities and towns in mid-April 1975 were continuously relocated. Their movement was still underway as late as July and August 1975 when the rice transplanting season began. |2548| Having set up the central government in Phnom Penh, in late 1975, the Central and Standing Committees, including NUON Chea, POL Pot, IENG Sary and KHIEU Samphan, began to turn their attention to making strategic use of these masses expelled from cities and towns. |2549|

802. Beginning in September 1975 and continuing into early 1977, hundreds of thousands of people were displaced from Kampong Speu, Kandal, Takeo, Prey Veng, Svay Rieng, Kampong Cham and Kampong Chhnang Provinces to Battambang, Pursat, Preah Vihear and Kampong Thom Provinces. |2550| In addition to the large-scale relocation from south to north, tens of thousands of people were also moved by various means within regions between late 1975 and December 1977, for example within and between Battambang, Pursat, Kratie, Kampot, Takeo, Kandal, Kampong Speu, Kampong Chhnang, Prey Veng, Svay Rieng, Kampong Thom, Kampong Cham and Mondulkiri Provinces. |2551|

803. Over the course of these evacuations, a consistent pattern of conduct emerged. Often, 'New People' were targeted for displacement. People were steadily forced, coerced or deceived to move. Thereafter, many people walked, regardless of the distance, or were transported in crowded boats, trucks or trains. They were provided little, if any food, water or accommodation, both during the movement or on arrival at their destination. Many died of illness, starvation and/or exhaustion. Others were shot by their Khmer Rouge guards or disappeared. |2552|

14.2.4. Legal Findings

804. The Trial Chamber is satisfied, based on the evidence put before it in Case 002/01, that the existence of a joint criminal enterprise has been established. First, the evidence establishes that a plurality of persons, including the leaders of the CPK, shared a common purpose to implement a socialist revolution in Cambodia. |2553| Second, it has also been established that while this common purpose was not criminal in itself, the policies formulated by the Khmer Rouge involved the commission of a crime as a means of bringing the common plan to fruition. These policies resulted in and/or involved the commission of crimes, including forced transfers, murders, attacks against human dignity and political persecution. Both population movements (phases one and two), followed a consistent pattern of conduct in each case including and involving the commission of crimes. This confirms that these policies were criminal and had been adopted beforehand in order to ensure that the common purpose would be achieved.

805. In particular, the forced transfers committed by Khmer Rouge officials and soldiers during movement of population (phases one and two) were undertaken pursuant to the Party leadership's express instructions, decisions and policy. Further, they were carried out as part of a pattern of forced transfers, under inhumane conditions and without regard for the well-being or the health of the people being moved. Murders and attacks against human dignity resulted from the inhumane conditions of the transfers, terror-inducing acts of Khmer Rouge cadres and the exercise of force. Party policy intended that such suffering and sacrifice would reeducate the 'New People' and attack the class system. On this basis, 'New People' were persecuted on political grounds. Finally, during phase one, acts of murder and political persecution targeted former Khmer Republic officials, a group deemed by the Party's policy to be incompatible with efforts to build and defend the country. These crimes were undertaken pursuant to Party policy to eliminate these enemies and formed part of an ongoing pattern of such arrests and executions which immediately preceded, occurred during, or immediately succeeded displacement.

806. As discussed below, the Chamber is also satisfied that the crimes committed during population movement (phase one) and population movement (phase two) can be imputed to participants in the JCE who, when using a direct perpetrator, acted to further the common purpose. |2554|

807. Members of the Central Committee, some of whom were also members of the Standing Committee met in June 1974 and decided to evacuate Phnom Penh. Members of the Central and Standing Committees confirmed this decision in February and early April 1975. The orders were passed on by those who attended the meetings, including Ta Mok. SON Sen chaired a committee, including KOY Thuon, tasked with managing the evacuation. Further, the military forces that attacked Phnom Penh were under the command of Zone secretaries including SAO Phim, KOY Thuon, Ta Mok and VORN Vet. They sought and received instructions from POL Pot, NUON Chea, SON Sen and other senior leaders at B-5. The Chamber is therefore satisfied that the crimes committed during movement of population (phase one) can be imputed to various participants in the JCE including, at least, some Central and Standing Committee members such as POL Pot, Ta Mok, SON Sen, SAO Phim, VORN Vet and KOY Thuon.

808. Movement of population (phase two) commenced with the Standing and Central Committees' decisions to move people from southern Cambodia to Battambang and Pursat Provinces (Northwest Zone), Kampong Thom (Central (old North) Zone) and Preah Vihear (Sector 103). Later instructions and policies concerning the allocation of labour, production targets and infrastructure priorities were determined by the Party leadership, including the Standing and Central Committees. Instructions from the Centre |2555| concerning these issues were passed to the secretaries of the Zones and Autonomous Sectors in, from and to which people were moved during phase two. These included ROS Nhim (Northwest), SAO Phim (East), Ta Mok (Southwest), KOY Thuon (Central (old North) Zone, until late 1975), KE Pauk (Central (old North) Zone, from late 1975), CHANN Sam (North Zone, from its creation in or around 1977), CHOU Chet (West Zone), BOU Phat (Sector 103), YONG Yem (Sector 505, until 1976) and BORN Nan (Sector 505, from 1976).

809. During phase two, once assembled, some people were moved by train under the guard of Khmer Rouge soldiers from Phnom Penh. The Centre military fell under the command of SON Sen and the General Staff, from his appointment as Minister of Defence in August 1975. The Commerce Committee (under KOY Thuon from October 1975, until his arrest later that year) was also involved in arranging the transportation of people from at least September 1975. Further, railway cadres answered to the Train Unit in Phnom Penh. From October 1975, VORN Vet was responsible for "industry, railroads and fisheries". From at least April 1976, the Train Unit was under the control of the Communications and Transportation Committee headed by MEY Prang. Both the Commerce and Communications and Transportation Committees fell under the DK Ministry of Economics headed by VORN Vet from his appointment to that position in April 1976.

810. The Chamber is therefore satisfied that transfers from the Southwest, West, East and Central (old North) Zones to the Northwest and Central (old North) Zones, Sectors 103 and 505, as well as within the Northwest, East and Central (old North) Zones, can be imputed to participants in the JCE including, at least, some members of the Central and Standing Committees, government ministers, and Zone and Autonomous Sector secretaries, such as VORN Vet, MEY Prang, SON Sen, KOY Thuon, KE Pauk, CHANN Sam, CHOU Chet, Ta Mok, ROS Nhim, SAO Phim, BOU Phat, YONG Yem and BORN Nan.

14.3. The Targeting Policy

811. According to the Closing Order, the objectives of the Targeting Policy, as limited in Case 002/01, included establishing a homogenous society without class divisions, and eliminating enemies. |2556| The Closing Order alleges that a pattern of targeting Khmer Republic officials, including civil servants, former military personnel and their families, began before 1975 and continued until at least 6 January 1979. |2557|

812. The Closing Order as a whole charges the Accused with murder, extermination and political persecution through execution as crimes against humanity for crimes allegedly committed at Tuol Po Chrey. |2558| However, it appears from a reading of only those parts of the Closing Order within the scope of Case 002/01 and in particular those relevant to the implementation of the Targeting Policy, that the Accused are not charged for having committed through a JCE the crime of persecution on political grounds in connection with executions of former Khmer Republic officials at Tuol Po Chrey. |2559| The Chamber will therefore not consider whether this particular crime was committed under such mode of liability.

813. In Case 002/01, the Chamber limited its consideration of the Targeting Policy to the crimes charged in connection with executions of former Khmer Republic officials at Tuol Po Chrey. |2560| However, executions at Tuol Po Chrey are explicitly linked in the Closing Order to the third policy concerning the re-education of bad elements and killing of enemies. |2561| This policy was not included within the scope of Case 002/01. |2562| Although Internal Rule 98(2) limits the judgement to the facts set out in the Closing Order, the Trial Chamber is not bound by the Co-Investigating Judges' factual analysis in the Closing Order which explicitly links a specific JCE policy to the relevant charged crimes. |2563| In addition, the Chamber notes that both the Targeting Policy and the third policy, at least partly, had a common purpose which was either to "eliminate enemies" or "the killing of enemies". Thus, although executions at Tuol Po Chrey are not explicitly linked to the Targeting Policy in the Closing Order, they are an example of the general pattern of targeting Khmer Republic officials identified under the Targeting Policy. |2564| Taking into account the nature of the charges concerning the executions at Tuol Po Chrey, the Accused therefore had adequate notice of them. Within the scope of Case 002/01, the Chamber will consider whether, with regard to the Targeting Policy, a JCE existed which resulted in the commission of the crimes of murder and extermination at Tuol Po Chrey.

14.3.1. Policy

814. The Chamber has already found that the Khmer Rouge had a policy to target Khmer Republic officials before 197 5. |2565| As set out below, this policy continued throughout the DK era and, in particular, during the time period relevant to Case 002/01.

815. According to NUON Chea, communism mandates the elimination of those who pose threats to the country and those who cannot be (re)educated. |2566| This included Khmer Republic officials whom the Party leadership believed never gave up their strategy to embed agents and cause rebellion no matter how many times they were defeated. |2567| Beginning before 17 April 1975 and continuing at least into 1976, the Party leadership considered Khmer Republic officials to be the primary enemy. |2568| Both KHIEU Samphan and IENG Sary maintained that the people and cadres had a deep hatred of Khmer Republic leaders, knew of their "true nature" and were therefore constantly on "revolutionary alert". |2569| KHIEU Samphan further asserted that, in avoiding foreign interference, the Khmer Rouge had learned a key lesson after the U.S. entered Cambodia via the LON Nol coup of 18 March 1970. By killing enemies, the Khmer Rouge leadership hoped to prevent another foreign invasion. |2570| Thus the Khmer Rouge leadership sought to eliminate all "remnants" of the former feudalist, imperialist and capitalist regimes |2571| throughout the DK era. |2572|

816. During a meeting in June 1974, at which the Central Committee planned the final offensive to liberate the country, NUON Chea, POL Pot, KHIEU Samphan, Zone, Sector and military leaders discussed the Party's experience at Oudong, where Khmer Republic officials were executed en masse. Having considered this prior 'success', the Party leadership decided on its strategy for the final offensive. This plan was affirmed during meetings in early April 1975. |2573|

817. Additionally, there is overwhelming evidence that the policy to target former Khmer Republic officials was expressly ordered and affirmed by the Party leadership during the final offensive to 'liberate the country' and then throughout the DK era. |2574| After the liberation of Pursat around 17 April 1975, the Northwest Zone Committee ordered that former Khmer Republic officials be assembled and killed. |2575| According to IENG Sary, around 20 April 1975, there was also a decision of the Party Centre to kill former Khmer Republic officials to ensure that it was impossible for them to stage a counter-revolution. |2576| On 4 June 1975, Comrade Pin of the Special Zone ordered the execution of 17 former Khmer Republic officials whom the Party had decided to "smash"; identified members of their families as "traitors"; and "asked" all cadres "to implement this policy of the Party". |2577| During a meeting in September 1976, Khmer Rouge military Division 164, after being informed by Brother 89 (SON Sen) of imperialist attack plans, was ordered to continue collecting biographies and rounding up "soldier elements". |2578| Following similar instructions from "Angkar", various Zone, Sector and District officials reported in 1976, 1977 and 1978 that further "remnants" of the former regime, including officials, soldiers, police and their family members, had been identified, arrested and/or eliminated. Some of these reports were addressed or copied to POL Pot, IENG Sary, NUON Chea, VORN Vet and/or SON Sen and to Office or Committee 870. |2579|

818. The Party's policy concerning "enemies" was disseminated through indoctrination sessions conducted by Party leaders, including NUON Chea and KHIEU Samphan, |2580| and in issues of Revolutionary Flag and Revolutionary Youth, |2581| which would also then praise the elimination of enemies, including former Khmer Republic officials. |2582| Witness PECH Chim, Tram Kak District Secretary, attended a month-long study session in December 1975 for District secretaries where NUON Chea instructed around 800 people on the topic of enemies. PECH stated that without NUON Chea's instructions "people would never know how to identify enemies from friends". |2583|

14.3.2. Justifications and Denials

819. Before the liberation of Phnom Penh and throughout the DK era, the Khmer Rouge rebutted concerns and deflected attention from its policy to target Khmer Republic officials by claiming that only the seven 'super traitors' would be killed and by encouraging Khmer Republic officials to leave the country (Section 14.3.2.1). It claimed that the war between the Khmer Rouge and the "imperialists" continued citing American attacks, such as the Mayaguez incident and the bombing of Siem Reap (Section 14.3.2.2), and it maintained that Khmer Republic soldiers had not been killed, but instead had been sent to the countryside along with other 'New People' (Section 14.3.2.3). Below, the Chamber considers each of these justifications and denials insofar as they may demonstrate the existence or otherwise of a policy to target former Khmer Republic officials.

14.3.2.1. FUNK/GRUNK Declarations

820. In December 1974, NORODOM Sihanouk, seemingly without consulting the Khmer Rouge, declared that GRUNK would grant amnesty to Khmer Republic soldiers and officials who realised their mistakes and joined FUNK. |2584| The Chamber has already found that NORODOM Sihanouk had no power to enforce such promises and no control over what was happening in the country. |2585| In March 1975, FUNK issued a statement, allegedly following a late February 1975 National Congress chaired by KHIEU Samphan, |2586| which proclaimed that Khmer Republic officials had the right to join FUNK provided they immediately ceased serving the seven 'super traitors'. It was "absolutely necessary", however, that the seven 'super traitors' be killed even, it appears, if they surrendered. This statement, as announced on the radio, bore KHIEU Samphan's signature. |2587| KHIEU Samphan thereafter publicly advocated the elimination of the seven 'super traitors', guaranteeing that other Khmer Republic officials would be spared if they joined the resistance before it was too late. |2588|

821. Contemporaneous diplomatic reports speculated that this decision was taken to rebut the concerns of the international community about possible massacres in the wake of a Khmer Rouge victory. |2589| Although NORODOM Sihanouk refuted international concerns that a blood bath would follow victory on the basis that only the seven 'super traitors' would be killed, |2590| he is also reported to have predicted that the Cambodian people would eradicate senior officials and cadres of the Khmer Republic and called for at least 16 other 'super traitors' to be held accountable for their "war crimes". |2591|

822. However, unlike NORODOM Sihanouk's December 1974 declaration, later declarations, including that of the FUNK Congress, tendered qualified offers of clemency. Khmer Republic officials would be forgiven only if they ceased their cooperation with the Khmer Rouge immediately, and before it was too late. |2592| Clemency would also be denied if the Khmer Rouge met resistance after taking Phnom Penh. |2593|

823. The Khmer Rouge claimed that they had prior to 17 April 1975 discovered enemy plots to rebel if the Khmer Rouge won the war. |2594| Specifically, IENG Sary claimed that Khmer Republic officials and the Central Intelligence Agency (CIA) had a plan to assassinate Khmer Rouge leaders and carry out a coup d'etat. |2595| Thus any cooperation on or after liberation would be too late. Following liberation, Khmer Republic officials, military officers and "secret agents" were targeted and sought for arrest and execution. |2596|

824. The U.S. Department of State reported in May 1975 that, in addition to two of the seven 'super traitors' (SIRIK Matak and LONG Boret), five other high-ranking Khmer Republic officials had been arrested and executed. These included UNG Bun Hor (National Assembly President), THOM Lim Huong (Minister of Information), CHHIM Chhuon (the Phnom Penh Special Military Region Commander), SREY Yar (Paratroop Brigade Commander) and LON Non (resigned brigadier general and LON Nol's younger brother). |2597| None of these former Khmer Republic officials was sentenced by the National Congress as one of the seven 'super traitors'. |2598| In a speech delivered on 2 April 1975, however, NORODOM Sihanouk expanded the list of 'super traitors' naming a further 16 "war criminals", including LON Non, who ought to be brought to account. |2599|

825. GRUNK Prime Minister PENN Nouth also claimed that FUNK/GRUNK appeals to former Khmer Republic officials to leave the country before 17 April 1975 indicated that there was no policy to execute them. |2600| However, even once they managed to escape, former Khmer Republic officials were not safe. The Khmer Rouge also actively sought the return of high-ranking "traitors" who had escaped, including SOSTHENE Fernandez, General SEK Sam Siet, Col. KETH Reth, Col. CHOU Deth and former Minister of Justice, BAN Sang. |2601| In 1976, refugees in Thailand who were sent back to the Khmer Rouge, including Khmer Republic officials, were reportedly killed. |2602|

826. The Chamber is therefore satisfied that FUNK/GRUNK declarations that Khmer Republic officials, other than the seven 'super traitors', would be granted amnesty, as well as appeals to Khmer Republic officials to leave the country, did not demonstrate any policy on the part of the Khmer Rouge to spare them. These declarations were merely a facade, an attempt at plausible deniability on the international stage, much like the organisation that issued them. |2603| Indeed, an official in NORODOM Sihanouk's office in Peking intimated to French diplomats on 17 April 1975 that the Khmer Rouge was trying to keep the international community at bay while it settled scores. |2604|

14.3.2.2. The On-Going War with the Imperialists

827. In 1976, 1977 and 1978, Amnesty International repeatedly appealed to PENN Nouth, KHIEU Samphan and the DK government to investigate, or permit independent observers to investigate, alleged human rights violations, including the execution of former Khmer Republic officials. |2605| The alleged executions of former Khmer Republic officials had been reported internationally by various states and organisations. |2606| In late 1975, IENG Sary lamented that the international community focused too much on the fate of "traitors" and war criminals. |2607| To further substantiate its claim that the U.S. and Khmer Republic officials (who were perceived to be their agents in Cambodia) continued to interfere in its affairs, the Khmer Rouge publicly announced alleged attacks on the territorial integrity of Cambodia following 17 April 1975. In particular, the Khmer Rouge highlighted the Mayaguez affair, which resulted in the American bombing of Sihanoukville, in May 1975 |2608| and the alleged American bombing of Siem Reap in February 1976. |2609|

828. Regardless of the truth of these allegations, these public announcements of attacks on Cambodian territorial integrity were intended to demonstrate that the war against the U.S. imperialists and their "lackeys" was far from over. |2610| On 27 February 1976, Office 870 issued information and instructions concerning the Siem Reap bombing. The Standing Committee had concluded that the Americans were responsible, explaining that, after the urban evacuations "broke[] up and scattered" the imperialist attack plan, they continuously attempted to attack Cambodia. The Standing Committee instructed that the Siem Reap bombing be used to re-educate the Party internally, stirring up hatred, vigilance and commitment to achieve three tonnes per hectare. |2611| Thereafter, referring to the Mayaguez incident and the Siem Reap bombing, KHIEU Samphan repeatedly appealed to the people and the army to search for and eliminate enemies he claimed would never give up. |2612| The timing of the alleged attacks and accompanying public announcements corresponded with continued targeting of the former Khmer Republic officials in the latter half of 1975 and 1976. |2613|

14.3.2.3. Khmer Republic Officials were Working in the Countryside

829. IENG Sary and POL Pot claimed that former Khmer Republic officials and soldiers were not killed, but rather that, in plain clothes, they went to the country-side to work after 17 April 1975. |2614| Refugee and victim accounts confirm that some were taken for hard labour, |2615| while those who hid their identity were moved just as other 'New People'. |2616| In late 1975, having already taken care of many high-ranking officials, refugees reported that the Khmer Rouge continued targeting low-ranking officials, their families and those who had been disguised. |2617| One refugee explained that the Khmer Rouge had learned that not only Khmer Republic officials, but also their families had to be killed, otherwise there would always be a threat of rebellion. |2618| The Chamber is therefore satisfied that, although some Khmer Republic officials were not immediately singled out from other 'New People' for mistreatment and were sent to the countryside to work, the Khmer Rouge was committed to a policy to target for arrest, execution and/or disappearance all elements of the former Khmer Republic regime.

14.3.3. Pattern

830. According to an account provided by a refugee who was a former LON Nol soldier, in 1972, 500 captured Khmer Republic soldiers were executed by the Khmer Rouge at the village of Phloeng Chhes. |2619| In September 1973, Khmer Rouge soldiers targeted Khmer Republic officials during the evacuation of Kampong Cham. |2620| In March 1974, government soldiers and officials were executed en masse after the Khmer Rouge took control of Oudong. |2621| In July 1974, surrendered soldiers and their families were executed in Battambang. |2622| In March 1975, there were refugee reports that enemies, including Khmer Republic officials, their agents and those who opposed the political line of the party were being executed in Khmer Rouge territory. |2623|

831. On 17 April 1975, the Khmer Rouge liberated Phnom Penh. |2624| IENG Sary later claimed that searches uncovered weapons which would support the alleged coup plan. |2625| Therefore, before they had a chance to carry out this secret 'plan', Khmer Republic officials and soldiers were identified, including at checkpoints, arrested, some led away and others killed on the spot. |2626| Khmer Republic officials were also convened by radio broadcast. Several generals and ministers, including LONG Boret, surrendered. |2627| On 17 April 1975, a Khmer Rouge military leader at the Ministry of Information stated that the fate of the gathered officials depended on the government, adding that some of the top political and governmental leaders were not far from the city. |2628| Meanwhile, SIRIK Matak and other Khmer Republic officials took refuge at the French Embassy. |2629| GRUNK condemned the French Embassy for giving refuge to hundreds of war criminals. |2630| On 20 April 1975, SIRIK Matak and other Khmer Republic officials were collected from the embassy. |2631| Khmer Rouge soldiers also expressed concern about the presence of Khmer Republic soldiers at Calmette Hospital and after applying pressure were provided a list of patients by the French Embassy. |2632| Many Khmer Republic officials who surrendered in Phnom Penh were killed, regardless of whether they were among the seven 'super traitors'. |2633|

832. On 21 April 1975, KHIEU Samphan declared that the army had succeeded in "relentlessly attacking and draining the enemy" who had died in agony. |2634| But not all enemies were dead yet. Targeting of former Khmer Republic officials through arrests, killings and disappearances continued in late April and May 1975, before, during or after evacuations, including in Battambang, |2635| Kampong Thom, |2636| Pursat, |2637| Kampong Chhnang, |2638| Kandal, |2639| Takeo |2640| and Siem Reap. |2641| On or around 25 or 26 April 1975, a minimum of 250 former Khmer Republic officials were executed at Tuol Po Chrey. |2642|

833. In late 1975, 1976 and thereafter, the Khmer Rouge, through arrest, execution and/or disappearance, continued targeting former Khmer Republic officials and their families |2643| including in Battambang, |2644| Kandal, |2645| Takeo, |2646| Siem Reap/Oddar Meanchey, |2647| Kampong Thom, |2648| Kampong Cham, |2649| Pursat, |2650| Svay Rieng |2651| and Prey Veng. |2652|

834. There was a clear pattern in the way Khmer Republic officials were identified by the Khmer Rouge after the cessation of the armed conflict and throughout the DK era. Witness François PONCHAUD and Expert Philip SHORT testified that lies used to control the situation and people, were the "very fabric" of the regime. |2653| In turn, the Khmer Rouge used deception to lure former Khmer Republic officials and soldiers into revealing their identities by telling them they would be taken to meet NORODOM Sihanouk, educated or re-integrated into the new armed forces. |2654| Khmer Republic officials and soldiers were then arrested, executed or disappeared. |2655| This same method was used throughout the country. |2656| François PONCHAUD, |2657| Philip SHORT |2658| and Expert David CHANDLER |2659| confirmed that the policy to execute former Khmer Republic officials was implemented nationwide.

14.3.4. Legal Findings

835. The Trial Chamber is satisfied, based on the evidence put before it in Case 002/01, that the existence of a joint criminal enterprise has been established. First, the evidence establishes that a plurality of persons, including the leaders of the CPK, agreed to a common purpose involving the implementation of a socialist revolution in Cambodia. |2660| Second, it has also been established that while this common purpose was not criminal in nature, the policies formulated by the Khmer Rouge involved the commission of a crime as a means of bringing the common plan to fruition. In this case, there was a policy to target former Khmer Republic officials which involved the murder and extermination of former Khmer Republic officials at Tuol Po Chrey. This policy was also demonstrated by a consistent pattern of conduct, of which the murders and extermination at Tuol Po Chrey formed part.

836. The Chamber is also satisfied that the murders and extermination at Tuol Po Chrey can be imputed to participants in the JCE who, when using a direct perpetrator, acted to further the common purpose. |2661| The Northwest Zone Committee ordered the assembly and execution of former Khmer Republic officials. ROS Nhim, Secretary of the Northwest Zone, presided over the meeting at which this directive was issued. Ta Sot, Secretary of Sector 7 (which included Tuol Po Chrey), was also present. Thereafter, Ta Sot, as well as representatives from the Zone and Sector Committees, attended meetings at which Khmer Republic officials were assembled and from which they were taken to be executed at Tuol Po Chrey. They were driven by Zone drivers and a Zone commander chose Tuol Po Chrey as the location for the executions. The Chamber is therefore satisfied that the murders and extermination at Tuol Po Chrey can be imputed, at least to ROS Nhim, a participant in the JCE.

837. The Chamber addresses below, under the sections concerning the individual criminal responsibility of the Accused, the participation of NUON Chea and KHIEU Samphan in the JCE and their resulting responsibility, if any, for these crimes (Sections 15 and 16).

15. THE CRIMINAL RESPONSIBILITY OF NUON CHEA

838. According to the Closing Order, as limited in Case 002/01, NUON Chea, through a JCE, committed the following crimes against humanity:

    Movement of population (phase one): murder, political persecution and other inhumane acts (comprising forced transfers and attacks against human dignity);

    Movement of population (phase two): political persecution and other inhumane acts (comprising forced transfers and attacks against human dignity); and

    Tuol Po Chrey: murder and extermination through executions of Khmer Republic officials. |2662|

The Closing Order alleges that NUON Chea intentionally participated in, or contributed to, the design and implementation of the common purpose which resulted in and/or involved the commission of crimes both before and during the DK era. |2663| In his capacities as Deputy Secretary of the CPK, member of the Military Committee and full-rights member of the Central and Standing Committees, the Closing Order alleges that NUON Chea attended high-level meetings where policy was developed, participated in elaborating the CPK's official policy documents and publically explaining, endorsing and encouraging CPK policies through speeches, propaganda and political training. |2664| On this basis, the Closing Order further alleges that NUON Chea planned, ordered, instigated, aided, abetted or, alternatively, is responsible as a superior for all crimes against humanity falling within the scope of Case 002/01. |2665|

15.1. Knowledge Relevant to the Modes of Liability

839. NUON Chea's knowledge of the policies, patterns of conduct and specific crimes falling within the scope of Case 002/01 is relevant to the Chamber's assessment of the chapeau requirements for crimes against humanity and all forms of responsibility, |2666| and will therefore be addressed first. The requisite level of knowledge varies depending on whether the criminal liability of the Accused materialises before, concurrent with or after the commission of the crimes. |2667| Therefore, in this section, the Chamber will examine whether, prior to the commission of the crimes falling within the scope of Case 002/01, the Accused was aware of the substantial likelihood of their later occurrence (Section 15.1.1), and whether the Accused had knowledge of the crimes concurrent with (Section 15.1.2) or after their commission (Section 15.1.3).

840. NUON Chea was a strong proponent of waging 'class struggle' |2668| and had primary responsibility for propaganda-related matters. |2669| He appeared as the chairman, trainer or speaker at a range of meetings, trainings or study sessions where he promoted the Party line of vigilance against internal and external enemies to lower-level followers. |2670| NUON Chea knew that such indoctrination to hate would inevitably lead to violence and admitted that over time, due to suffering and hardship, the party line concerning class struggle and hatred was engrained in the people in the liberated zones. |2671| NUON Chea supported the view that the revolution should rely on the peasants of the lowest classes in order to impose on Cambodia the dictatorship of the proletariat. The majority of those belonging to this new ruling class had very little formal education. All were strictly disciplined, indoctrinated, and taught to deceive people and behave in accordance with the principle of secrecy. NUON Chea could not ignore that giving extensive power to these people would lead to unquestioning implementation of the party line without the exercise of proper judgement. For this reason, the only reasonable expectation was that vast numbers of people would die during forced population movements because of the conditions of the evacuations, and that such movements would involve commission of large numbers of crimes against humanity. Nevertheless, in engaging in propaganda activities and training cadre on vigilance against enemies, the strict indoctrination of peasants on class struggle, including the identification of all 'New People' and former Khmer Republic officials as enemies, NUON Chea knew that there was a substantial likelihood that crimes would be committed.

841. NUON Chea made various admissions, outlined below, concerning his general knowledge of the policies and of the crimes being committed by the Khmer Rouge. Further, throughout the time period relevant to Case 002/01, NUON Chea had access to wide-ranging information concerning the crimes.

15.1.1. Awareness of the Substantial Likelihood of the Commission of the Crimes

842. In a process initiated in May 1972 and officially confirmed one year later, the Central Committee decided to close markets in the liberated zones and to establish cooperatives, pooling labour resources for rice production and "[attacking] the power of the classes of feudalists, land owners, and capitalists." |2672| In January 1972, IENG Sary gave a public interview concerning collectivisation in the liberated zones. |2673| CPK circulars assigned people to collective agricultural production. |2674| Further, conditions of transport, the health or the well-being of the people were of no concern. In the July 1973 issue of Revolutionary Flag, the Party leadership, noting shortages in the liberated zones, was committed to continue forced evacuations leaving it to the people to resolve their own problems. |2675| Pursuant to this policy, consistent patterns of forced urban evacuations and movements between rural areas emerged in the liberated zones, accompanied by ill-treatment, discrimination against people taken from enemy territory and against Khmer Republic officials, and deaths resulting from acts of terror, the conditions of transfer and the use of force. |2676|

843. Drawing on this prior experience, NUON Chea participated in the Party leadership's formulation of the policy of forced movements of the population and decision-making processes which resulted in or involved the crimes in Case 002/01. |2677| In June 1974 and again in April 1975, the Party leadership, including NUON Chea, collectively planned to evacuate urban areas forcibly. |2678| This plan contemplated and/or involved the crimes against humanity of murder, extermination, political persecution, and other inhumane acts (comprising forced transfers and attacks against human dignity). |2679| Further, based on prior experience, in particular at Oudong, the June 1974 plan to evacuate all the cities after the liberation of the country necessarily also contemplated and/or involved the targeting of Khmer Republic officials for execution, arrest or disappearance following the liberation of an area. |2680| Following June 1974, the pattern of urban evacuations and targeting Khmer Republic officials intensified, in particular during the final offensive to liberate the country. |2681|

844. The Chamber has found that the Party leadership formulated and implemented a policy of targeting Khmer Republic officials which continued during the DK era. |2682| NUON Chea admitted that there was a policy and an intention to eliminate bad elements which justified 'smashing' or eliminating people if they could not be re-educated. |2683| In relation to Khmer Republic officials specifically, the Chamber has found evidence of the Party leadership's policy to target former Khmer Republic officials as bad elements who could not be re-educated. |2684| NUON Chea confirmed that the CPK's "political orders" that the super-traitors "were to be liquidated", were in fact carried out. |2685| According to NUON Chea, over time, due to suffering and hardship, the party line concerning class struggle and hatred was engrained in the people in the liberated zones. |2686| The Chamber is satisfied that, in view of his role in the Party leadership which designed and implemented the policies concerning forced population movement and the targeting of Khmer Republic officials, NUON Chea knew of these policies and the resulting patterns of conduct. |2687|

845. Further, living conditions throughout the country, the Party's plan to forcibly transfer the population of Phnom Penh and its justification for it, the policy to strategically allocate labour during movement of population (phase two), the differential treatment of New People, and the Party's instructions to eliminate and maintain vigilance against all elements and "remnants" of the Khmer Republic were no secret within the Party hierarchy. These realities, actions and policies were discussed, praised and encouraged during education sessions, conferences, independence day celebrations, congresses and in Revolutionary Flag and Youth magazines throughout the DK era, |2688| before, during and after the crimes were committed. NUON Chea attended meetings where these matters were discussed and instructions given. |2689| The Chamber has found that NUON Chea was one of the principal authors of Revolutionary Flag |2690| and is satisfied that he had knowledge of these issues discussed in the publication.

846. The crimes falling within the scope of Case 002/01 formed part of consistent patterns of conduct carried out throughout the country before 17 April 1975 and continuing thereafter. |2691| In view of his access to reports and information concerning living conditions in the countryside and the implementation of the common purpose and policies, the Chamber considers that the only reasonable inference is that NUON Chea knew of these consistent patterns of conduct before, during and after the crimes falling within the scope of Case 002/01 were committed and of which they formed part. |2692| Further, the Chamber is satisfied that, NUON Chea knew of the substantial likelihood, consistent with these patterns of conduct, that the implementation of plans and policies to evacuate urban areas and target Khmer Republic officials would result in the crimes committed in the course of the first two phases of population transfer and at Tuol Po Chrey.

15.1.2. Knowledge Concurrent with the Commission of the Crimes

847. NUON Chea, as CPK Deputy Secretary and as a full rights member of both the CPK Central Committee and its Standing Committee, |2693| was privy to information which would necessarily have put him on notice, at the time of the crimes, that the crimes were being committed. During Central or Standing Committee meetings, the members received reports, discussed and planned the conduct of the democratic and socialist revolutions, the evacuation of Phnom Penh, the subsequent forced population movements, the living conditions in the countryside and the elimination of enemies and elements of the Khmer Republic regime. |2694| The Chamber has found that the Central Committee's function, in part, was to analyse the implementation of the Party's policies, to correct abuses and to issue directives concerning the living conditions in the countryside. |2695| The minutes of meetings demonstrate that the Standing Committee (including NUON Chea) received reports of, and discussed, food and medicine shortages and illnesses. |2696| As well as attending formal Party meetings, NUON Chea also resided, dined and met informally with other senior Party leaders, |2697| with whom he discussed topics including the conduct of the democratic and social revolutions, two phases in the evolution of the common purpose. |2698| In addition to these roles, NUON Chea was specifically delegated responsibility for social action policy. |2699| Additionally, the Chamber has found that by virtue of his seniority within the leadership of the CPK, NUON Chea had oversight of all Party activities extending beyond the roles and responsibilities formally entrusted to him during the DK period. |2700| Accordingly, the Chamber is satisfied that NUON Chea obtained knowledge of the crimes in his capacity as Deputy Secretary and through his membership of the Central and Standing Committees.

848. The CPK leadership also received reports from military leaders on progress regarding battlefield situations at the April 1975 meeting at B-5. |2701| Numerous surviving telegrams concerning the situation on the battlefields as well as on the border with Vietnam were copied to NUON Chea. |2702| The Chamber has also found that the military forces that attacked Phnom Penh were under the command of Zone secretaries, who themselves sought and received instructions from POL Pot, NUON Chea, SON Sen and other senior leaders at B-5. |2703| Accordingly, the Chamber is satisfied that the CPK leadership received detailed information about the activities of Khmer Rouge troops and the situation on the ground.

15.1.2.1. Movement of Population (Phase One)

849. NUON Chea admitted that he participated in the decision to evacuate Phnom Penh. |2704| He said that, immediately following the evacuation of Phnom Penh, he witnessed evacuees walking on the road from Phnom Penh and acknowledged that it was difficult for them to travel. He admitted that he subsequently he saw dead bodies in houses in Phnom Penh. |2705| NUON Chea also acknowledged that there were deaths of many kinds during the DK period, including those due to illness and starvation both during evacuations and thereafter. |2706| The Chamber is therefore satisfied that NUON Chea knew of the commission of the crimes during the first phase of population transfer at the time of their commission.

15.1.2.2. Movement of Population (Phase Two)

850. NUON Chea admitted that he knew that people were moved during the second phase of population movement. |2707| He acknowledged that the Party was aware that people would sacrifice and face hardship as a result of the evacuations. |2708| As noted above, NUON Chea also acknowledged that there were deaths of many kinds during the DK period, including those due to illness and starvation both during evacuations and thereafter. |2709|

851. The evidence put before the Chamber shows that during phase two, there was an ongoing pattern of forced movements between rural areas characterised by ill-treatment, discrimination against 'New People', and deaths resulting from the conditions of transport, terror-inducing acts of Khmer Rouge soldiers and the use of force. |2710| Zones and Autonomous Sectors reported to the Centre concerning population movements during phase two. |2711| Thousands of people were moved by boat, truck and train to, from and past Phnom Penh, a city otherwise largely deserted. |2712| The Chamber is satisfied that through his travels during the DK period in particular, NUON Chea was aware of the living conditions throughout the country. |2713| During the DK period, NUON Chea visited construction and agricultural projects and met with Zone leaders. |2714| He also met with Zone and autonomous Sector secretaries and officials, such as ROS Nhim, in Phnom Penh. |2715| During August 1975, the Standing Committee visited the Northwest Zone and witnessed the shortages of both food supplies and medication experienced by the New People. |2716| NUON Chea either travelled with the Standing Committee or was later made aware of the findings of that visit.

852. The Chamber is therefore satisfied that NUON Chea knew of the crimes committed in the course of movement of population phase two at the time of their commission.

15.1.2.3. Executions at Tuol Po Chrey

853. On and after 17 April 1975, further towns throughout Cambodia were liberated, and were accompanied by the arrest, execution, disappearance and other ill-treatment of Khmer Republic officials immediately before, during or immediately after evacuations. |2717| Consistent with this ongoing pattern of conduct, after the liberation of Pursat, Khmer Republic officials were assembled by deceptive means and executed at Tuol Po Chrey. |2718| The executions at Tuol Po Chrey occurred on 25 or 26 April 1975. NUON Chea was one of the principal authors of Revolutionary Flag, |2719| through which the Party's policy concerning "enemies" was disseminated, and the elimination of enemies, including former Khmer Republic officials, was praised. |2720| The Party's policy concerning "enemies" was disseminated through indoctrination sessions conducted by Party leaders, including NUON Chea. |2721|

854. Although there is no evidence that he knew of the specific nature of the crimes committed at Tuol Po Chrey, the Chamber is satisfied that NUON Chea knew of the ongoing pattern of targeting of Khmer Republic officials for arrest, execution, disappearance and other ill-treatment after an area was liberated and evacuated. Therefore he knew that Pursat like other liberated cities all over the country were to be evacuated, and that, in accordance with the policy targeting Khmer Republic officials at least some of those found in Pursat were executed at the time the executions at Tuol Po Chrey occurred.

15.1.3. Knowledge Arising After the Commission of the Crimes

855. After the commission of the crimes in phases one and two of movement of population and at Tuol Po Chrey, the policies and resulting crimes were discussed during education sessions, conferences, Independence Day celebrations, congresses, in policy documents, and in Revolutionary Flag and Revolutionary Youth magazines. NUON Chea not only had access to Revolutionary Flag and Revolutionary Youth magazines, but as noted above, he was one of principal authors of Revolutionary Flag.

856. NUON Chea also had access to reports by other States, international organisations and international news agencies. These external sources of information publicly reported allegations of atrocities, during and after their commission, including forced transfers, inhumane conditions, discrimination against 'New People' and former Khmer Republic officials, targeting for arrest, executions and disappearances of former Khmer Republic officials, and deaths during phases one and two of population movements. |2722| The Chamber has found that the CPK Standing Committee ordered the DK Ministry of Propaganda and Information to monitor foreign news reports closely and that detailed procedures were established for the summarising and reporting of news by the Ministry of Propaganda to the Standing Committee. |2723| The Chamber is satisfied that through these Ministry reports, NUON Chea, a member of the Standing Committee, was made aware of news reports detailing the crimes.

857. On the basis of the foregoing, the Chamber finds that NUON Chea was also on notice of the crimes after their commission.

15.2. The Zones' Responsibility for Crimes Committed

858. The NUON Chea Defence submits that: (a) it was the Zones and not the Party Centre which bore responsibility for the implementation of the plan to evacuate Phnom Penh and the second population movement, as well as events at Tuol Po Chrey; |2724| and (b) the evacuations themselves were the responsibility of the military for which NUON Chea was not responsible. |2725|

859. While accepting that it fell to the Zones to implement the Party's policies concerning population movements and targeting of Khmer Republic officials, the Chamber is satisfied that the Zones were not acting independently. Rather, the Party Centre, including NUON Chea, relied upon the Zones, whose secretaries were often members of the Central or Standing Committees, and on the CPK's hierarchical structure to give effect to its policies and decisions. This was both consistent with the provisions of the CPK Statute |2726| and demonstrated in reality. The Central Committee, of which NUON Chea was the Deputy Secretary, was responsible for instructing Zone-level, Sector-level and other Party organisations to carry out activities according to the Party's political line, and instructions were relayed downwards from the Party Centre to the lower Zones in turn. |2727|

860. The Chamber has found that the evacuation of Phnom Penh and subsequent population movements were effected in the same manner. |2728| Similarly, while the September 1975 Policy Document called on the Zones, Sectors and Districts to make plans and undertake the necessary preparations to meet the Party's goals, |2729| it also incontrovertibly evidences that it was the Party Centre that designed, coordinated and authorised population movements. |2730| The Party also controlled the means and modes of transportation by which the subsequent population movements were effected where Zone, Sector and District committees had to authorise transfers or movements. |2731| Party directives concerning enemies and targeting of Khmer Republic officials were also disseminated from the Party Centre to lower-level cadres via trainings, propaganda and Revolutionary Flag publications for implementation. Accordingly, the Chamber rejects this submission.

15.3. Commission through a Joint Criminal Enterprise

15.3.1. Contribution

861. The Chamber is satisfied that NUON Chea, as Deputy Secretary of the Party who had ultimate decision-making power with POL Pot, |2732| was not only involved in the initial development of DK policies but also actively involved throughout the period relevant to Case 002/01 in their continuing implementation. Notably, NUON Chea attended meetings at which plans for the evacuation of Phnom Penh, with which he agreed, were discussed. NUON Chea also knew and approved of subsequent forced population movements and contributed to developing and promoting the DK policy of targeting former Khmer Republic officials.

862. As set out in further detail below, the Trial Chamber is satisfied that NUON Chea participated in the common purpose of the joint criminal enterprise, making a significant contribution. In order to hold NUON Chea responsible for crimes committed by Khmer Rouge soldiers who are not members of the JCE, it must be shown that the crime can be imputed to a member of the JCE and that this member, using a direct perpetrator, acted in accordance with the common plan. |2733| The Chamber recalls its finding that the crimes can be imputed to various members of the JCE. |2734| The Chamber's findings below that NUON Chea planned, ordered, instigated, aided and abetted the crimes at issue (Section 15.4) also demonstrate a sufficient link between the direct perpetrators and NUON Chea. |2735| The Chamber is therefore satisfied that the crimes can be directly imputed to NUON Chea.

15.3.1.1. Policy development: Planning the common purpose

863. NUON Chea was appointed Deputy Secretary of the Party at the First Party Congress in September 1960, where he played an instrumental part in the formulation of the Party's stance on revolutionary violence and use of armed struggle to achieve its goals. He also participated in the Second and Third Party Congresses (in February 1963 and 1971) where the same political line was affirmed. |2736| At the First Party Congress, the Party also outlined its goal of socialist revolution and decreed that foreign imperialists, their "lackeys" or henchmen and the "feudalists, capitalists and reactionaries" were all class enemies. |2737| In his capacity as the Party's Deputy Secretary and with his contribution to the Party stance, NUON Chea helped initiate and officially approved this Party line.

864. In 1967 or early 1968, NUON Chea, alongside other leaders, determined that the armed revolution had to begin. |2738| As the revolution developed, NUON Chea met with fellow Party leaders and advocated that it was time for armed struggle against officials of the Khmer Republic regime. |2739| In October 1970, the Central Committee, of which NUON Chea and other significant political leaders were part, discussed a plan to liberate Cambodia from American imperialists and the Khmer Republic, and confirmed the Party's policy of self-reliance and independence. |2740| In the following five years, NUON Chea and other Party leaders met regularly concerning the ongoing revolution and the administration of liberated Zones. |2741|

865. Over the course of 1974-1975, NUON Chea participated in meetings discussing the liberation and evacuation of Phnom Penh. He has admitted to participating in the decision to evacuate Phnom Penh at a meeting of CPK leaders in June 1974 |2742| After this meeting, NUON Chea travelled to Vietnam to inform Vietnamese leaders of the CPK plan to launch the final attack on Phnom Penh and to request further supplies of weapons, although the latter aim was ultimately unsuccessful. |2743| At the last meeting in early April 1975 at B-5, very shortly before the attack on Phnom Penh, NUON Chea again agreed with the decision to forcibly transfer the capital's entire population. |2744|

866. NUON Chea and other key leaders also participated in the May 1975 meeting at the Silver Pagoda that discussed the leadership's plan to bring about socialist revolution by implementing collectivisation. |2745| Implementation of this plan effectively precluded any possibility that, with few exceptions, those removed from Phnom Penh would return to their homes. NUON Chea did not oppose the plan.

867. After the Standing Committee visited the Northwest Zone in August 1975, it decided to reallocate an additional 400,000 to 500,000 people to the region. |2746| The Standing Committee's report of this visit offered "Angkar's guiding opinions" on key questions of 'workforce arrangements,' cooperatives and the handling of cities. The Standing Committee's report illustrates the hostile attitudes of Committee members towards New People. It outlined the Committee's plan to force all New People into cooperatives. |2747| The Chamber finds that the report outlines a calculated plan by the leadership to augment and improve national defence (by creating cooperatives) and the economy (by population movements). Given that the Standing Committee met on a weekly basis and more frequently during times of emergency, |2748| the Chamber is satisfied that even if NUON Chea did not personally participate in the visit to the Northwest Zone he was made aware of the visit's outcomes, the decisions subsequently taken and the issues faced by the New People in that Zone by means of the written report of the Standing Committee. In view of NUON Chea's prior statements, |2749| the Chamber is also satisfied that he shared the leadership's views expressed in the report concerning New People.

868. In September 1975, the Party leadership disseminated a document analysing progress in implementing the Party's agricultural policy in the previous four to five months. |2750| The policy document outlined the plan to move more than half a million people to other Zones in order to meet rice production requirements and acknowledged that medicine and food shortages affected the 'New People' who were forcibly evacuated from Phnom Penh in particular. |2751| The document expressly examined the Party lines on 'Social Action' and 'Culture', both portfolios for which NUON Chea was assigned responsibility at a Standing Committee meeting on 9 October 1975. |2752| On that same day the Standing Committee approved the general policy of building and defending the country "based on the force of the masses." |2753| During that time, NUON Chea continued as Deputy Secretary of the Party |2754| and as a full-rights member of the Standing Committee. Between September and October 1975, the Standing Committee, including NUON Chea, met to discuss policies to defend and build the country. |2755| The policy to organise manpower according to needs on a seasonal basis was also later approved at the First Nationwide Economics Congress and widely reported in the October-November 1975 issue of the Revolutionary Flag. |2756| In view of the foregoing, the Chamber finds that NUON Chea was aware of and supported the planned population movements affecting more than half a million people.

869. Through his contributions at Party Congresses and other meetings with other senior CPK leaders, the Chamber is satisfied that NUON Chea not only shared support for the common plan, but played a key role in formulating its content.

15.3.1.2. Propaganda, Education and Public Training: Disseminating and Implementing the Common Purpose

870. The Chamber has found that, both in the years preceding the evacuation of Phnom Penh and during the subsequent DK regime, NUON Chea focused actively on propaganda and training Khmer Rouge cadres in the countryside, advocating the Party's revolutionary and economic policies, the formation of cooperatives and vigilance against enemies. |2757| NUON Chea also appeared as the chairman, trainer or speaker at a range of meetings, trainings or study sessions where he promoted the Party line of vigilance against internal and external enemies to lower-level followers. |2758|

871. Shortly after the May 1975 meeting at the Silver Pagoda, NUON Chea, along with POL Pot and other key leaders, led a series of meetings. Between 20 and 25 May 1975 NUON Chea and other leaders instructed representatives from military units and all District, Sector and Zone secretaries on the Party's policies concerning the organisation of cooperatives, elimination of private property, prohibition of currency and markets, and the building of dams and canals. In the following months, the lower levels implemented the instructions they had received. |2759|

872. The Chamber recalls that from late 1975 until 1977 numerous publications of the Revolutionary Flag, which NUON Chea played an instrumental role in issuing, |2760| advocated the need to move manpower on the basis of need and party strategy. |2761| Numerous Revolutionary Flag publications subsequently exhorted CPK cadres to wage class struggle against, 'feudalists'. Revolutionary Flag publications made it clear that 'feudalists' referred to landowners and aristocrats. |2762|

873. As evidenced by the Revolutionary Flag publications, his speeches and public statements, NUON Chea helped divide the population, differentiating between peasant 'Base People' and 'New People', their urban counterpart. |2763| In particular, NUON Chea argued strongly that urban people were corrupt |2764| and that cities harboured 'enemies.' |2765| 'Class struggle' was subsequently entrenched as a Party priority in the 1976 CPK Statute adopted at the Fourth Party Congress. |2766| On the pretext of socialist revolution and class-struggle, the Party in which NUON Chea was a driving force indoctrinated its followers with a hatred for city-people which continued throughout the DK period. |2767| The Party's and NUON Chea's statements concerning 'enemies' and 'class struggle' sowed seeds of distrust among Party cadres and the majority of Cambodia's rural population who categorised Phnom Penh's evacuees, and eventually all city people, as 'New People' who could not be trusted, and treated them with suspicion. |2768|

874. The Chamber finds that through his role in the propaganda campaign (including his instrumental role in issuing the Revolutionary Flag) and training of cadres both before and after April 1975, NUON Chea contributed substantially to the dissemination and implementation of the common purpose.

15.3.2. Intent

875. As Deputy Secretary of the CPK, full-rights member of the Central and Standing Committees, and by virtue of his close relationship with POL Pot and other top CPK leaders, |2769| NUON Chea was a key actor responsible for the formulation of Party policies. He also participated in the meetings prior to April 1975 approving the plan to forcibly transfer the population of Phnom Penh and at all times thereafter was a key member of the Committees that approved continuous population movements within Cambodia within the time period relevant to Case 002/01. He was also a strong proponent of waging 'class struggle' against, inter alia, Khmer Republic officials and played a leading role in propaganda and training of cadre to achieve this. In the Chamber's view, the significance of his role is further heightened given the limited number of people who constituted the 'upper echelon'. Accordingly, the Chamber is satisfied that, as a member of the JCE, |2770| NUON Chea contributed significantly to the realisation of the common purpose and that he intended to further the implementation of the common purpose through his actions.

876. In light of the foregoing, the Chamber finds that NUON Chea shared the intent of the other members of the JCE to bring about the common purpose |2771| through implementation of the Party's policies on population movements and targeting Khmer Republic officials. He shared with the other participants of the JCE the intent to commit the other inhumane acts of forcible transfer and attacks against human dignity, murder committed during population movements (phases one and two), as well as murder and extermination as crimes against humanity at Tuol Po Chrey. Further, in light of his contribution to developing the Partly line on class-struggle and the policy to target Khmer Republic officials, the Chamber is also satisfied NUON Chea shared with the other members of the JCE the requisite discriminatory intent for the crime of political persecution (committed during population movements (phases one and two)).

15.3.3. Conclusion

877. The Trial Chamber finds that NUON Chea through a JCE (basic form) committed the crimes against humanity of murder, political persecution and other inhumane acts (comprising forced transfer and attacks against human dignity) during movement of population (phase one); political persecution and other inhumane acts (comprising forced transfer and attacks against human dignity) during movement of population (phase two); and murder and extermination at Tuol Po Chrey. He shared with the other members of the JCE the intent to commit these crimes.

15.4. Other modes of liability

15.4.1. Crimes Committed During Movement of Population (Phase One)

15.4.1.1. Planning

878. The Chamber is satisfied that NUON Chea, with others, planned the forced transfer of the inhabitants of Phnom Penh which involved the crimes against humanity of murder, political persecution, extermination and the other inhumane acts of forced transfer and attacks against human dignity. The final offensive to liberate the country and the policy to evacuate cities were planned and ordered at a series of meetings between 1973 and early April 1975. |2772| NUON Chea was a full rights member of the Central and Standing Committees, |2773| who had the right to participate in meetings and did in fact participate in meetings. |2774|

879. At the June 1974 meeting, the Central Committee discussed in detail the Party's "success" at Oudong, where the population, including Khmer Republic officials, was forcibly evacuated, mistreated and many were executed. |2775| Having reviewed this experience and knowing that there were already food shortages throughout the country, and in particular in Phnom Penh, the Central Committee, including NUON Chea, nevertheless decided to empty urban areas, including Phnom Penh, |2776| of their inhabitants omitting any measures providing for the consent, health or well-being of those being transferred. The Chamber is therefore satisfied that those at the June 1974 meeting collectively drew up a plan that contemplated and involved the commission of the crimes committed in the course of phase one, namely murder, political persecution, extermination and the other inhumane acts of forced transfer and attacks against human dignity.

880. In early April 1975, senior leaders, including NUON Chea, met to address the evacuation of Phnom Penh. Prior experiences with the forced transfer of the population from urban areas to the countryside, |2777| which formed part of a consistent pattern of conduct beginning before April 1975 |2778| were discussed and reviewed. NUON Chea and other attendees then affirmed the decision to forcibly transfer the population of Phnom Penh. |2779| However, despite reviewing prior experience with transfers of population characterised by suffering, discriminatory violence against 'New People' and Khmer Republic officials, and deaths resulting from the conditions of movement, use of force and acts of terror, no provision was made to address similar readily anticipated conditions during the planned transfer of the population of Phnom Penh. The Chamber is therefore satisfied that this plan contemplated and involved the commission of the crimes committed in the course of phase one.

881. The plan to transfer the population of Phnom Penh, which NUON Chea and other members of the Standing Committees and Central Committees designed, preceded and substantially contributed to the crimes perpetrated during phase one. This plan was disseminated through the ranks after the meetings at which the decision was made. |2780| Acting upon these plans and orders, the Khmer Rouge military began implementing the plan only hours after liberating Phnom Penh. As planned, and consistent with a pattern of conduct before and after 17 April 1975, |2781| the population of Phnom Penh was evacuated by force, coercion and deception, with little if any accommodation or assistance. Many of those who were forced to evacuate died and Khmer Republic officials were targeted for arrest and execution. |2782|

882. The Chamber has found that, in planning to evacuate Phnom Penh, NUON Chea knew that the evacuation would result in mass killings, including of Khmer Republic officials, and acted in the knowledge that many people would die during the course of the evacuation of Phnom Penh and subsequent population movements. |2783| The Chamber is satisfied that in planning the transfer of the population of Phnom Penh NUON Chea intended, or at a minimum was aware of the substantial likelihood, that crimes would be committed upon the execution of the plan.

883. The Chamber is therefore satisfied that NUON Chea is criminally responsible for planning the movement of population (phase one), a plan which involved the commission of the crimes against humanity of murder, political persecution, extermination and the other inhumane acts of forced transfer and attacks against human dignity.

15.4.1.2. Ordering

884. The Chamber has already indicated that, while it is not necessary to establish a formal superior-subordinate relationship, ordering requires that an accused is in fact or in law in a position of authority to instruct another person to commit a crime. Evidence must also show that the accused, alone or collectively with others, issued, passed down or otherwise transmitted an order, including through intermediaries. The Chamber is satisfied that NUON Chea ordered the crimes committed in the course of movement of population (phase one). NUON Chea, together with POL Pot, exercised the ultimate decision-making power of the Party, |2784| and used de jure and de facto authority to instruct lower-level Khmer Rouge cadres and soldiers to commit crimes of murder, extermination, political persecution and the other inhumane acts of forced transfer and attacks against human dignity. After the June 1974 meeting at which it was decided that Phnom Penh would be forcibly evacuated, meeting attendees were instructed to disseminate information about the conclusions reached at the meeting in their respective Zones of competence. |2785| After a further meeting in early-April 1975 at which the evacuation was discussed, orders were again conveyed to military commanders for implementation. |2786| The decision to forcibly evacuate Phnom Penh was subsequently executed in April 1975. NUON Chea confirmed that the CPK's "political orders" that the super-traitors "were to be liquidated", were in fact carried out. |2787|

885. The Chamber is satisfied that the decisions and instructions of the Party Centre, which included NUON Chea, amounted to orders which were implemented, |2788| and that the lower-level cadres accepted the authority and decisions of the CPK Party. These orders preceded and substantially contributed to the commission of the crimes. Lower-level Khmer Rouge cadres and soldiers began implementing the orders hours after liberating Phnom Penh.

886. Adopting the reasoning outlined above with respect to "planning", |2789| the Chamber is satisfied that in ordering the evacuation of Phnom Penh and subsequent population movements, NUON Chea intended, or at a minimum was aware of the substantial likelihood, that crimes would be committed in execution of the Party's instructions. The Chamber is therefore satisfied that NUON Chea is criminally responsible for ordering the crimes against humanity of murder, extermination, political persecution and the other inhumane acts of forced transfer and attacks against human dignity which were committed during movement of population (phase one).

15.4.1.3. Instigating

887. As previously indicated, instigating requires that the Accused's conduct prompted the commission of the crimes meaning that his act or omission substantially contributed to the conduct of the direct perpetrator who committed the crime. The Chamber has found that NUON Chea collectively planned the forced transfer of the inhabitants of Phnom Penh and that this plan substantially contributed to the commission of the crimes. The Chamber has also found that NUON Chea, together with POL Pot, exercised the ultimate decision-making power of the Party, and used this de jure and de facto authority to instruct lower-level Khmer Rouge cadres and soldiers to commit crimes that occurred during movement of population (phase one). NUON Chea played a leading role in the indoctrination of Khmer Rouge cadres and soldiers particularly regarding training cadre on maintaining vigilance against enemies, and in the strict indoctrination of peasants on class struggle which included the identification of all 'New People' and former Khmer Republic officials as enemies. The Chamber is satisfied that NUON Chea's involvement, alongside other leaders, in formulating the policies to forcibly transfer the population and to target certain groups, preceded and substantially contributed to the crimes which were committed in the course of movement of population (phase one). Further, in view of NUON Chea's positions of authority at the time of the evacuation of Phnom Penh, the Chamber is satisfied his trainings, statements and involvement in issuing Revolutionary Flag were understood by lower-level Khmer Rouge cadres and soldiers prompting them to commit crimes against those considered enemies. This conduct also substantially contributed to the crimes which were committed in the course of movement of population (phase one). Therefore the Chamber is satisfied that, through his acts NUON Chea prompted the perpetrators who committed the crimes during movement of population (phase one).

888. Finally adopting the reasoning outlined above with respect to "planning", |2790| the Chamber is satisfied that in ordering the evacuation of Phnom Penh and subsequent population movements, NUON Chea intended, or at a minimum was aware of the substantial likelihood, that crimes would be committed in execution of the Party's instructions. The Chamber is therefore satisfied that NUON Chea is criminally responsible for instigating the crimes against humanity of murder, extermination, political persecution and the other inhumane acts of forced transfer and attacks on human dignity which were committed during movement of population (phase one).

15.4.1.4. Aiding and abetting

889. The Trial Chamber is satisfied that NUON Chea provided encouragement and moral support to the perpetrators of the crimes committed during movement of population (phase one). This encouragement and moral support manifested itself through his role, before and after the crimes, in propaganda and training of cadre advocating the class struggle, justifying urban evacuations, and praising past crimes. |2791|

890. NUON Chea's encouragement and moral support had a substantial effect on the commission of crimes during movement of population (phase one). NUON Chea's words and actions in disseminating the forced movement and targeting policies to cadres and in advocating implementation of the policies encouraged the perpetrators to commit the crimes. Further, the CPK's approval of the policies had a legitimising effect which facilitated the realisation of the crimes.

891. NUON Chea knew that the crimes committed during movement of population (phase one) would likely be committed and that his conduct assisted or facilitated their commission. The Chamber is also satisfied that NUON Chea was aware of at least the essential elements of the crimes. The Chamber has already found that NUON Chea not only knew that the crimes committed during phase one would likely be committed, but that he intended them. With this knowledge and intent, NUON Chea provided encouragement and moral support to the perpetrators of crimes committed during phase one. Accordingly, the Chamber finds that NUON Chea is responsible for aiding and abetting the direct perpetrators to commit the crimes against humanity of murder, political persecution, extermination and the other inhumane acts of forced transfer and attacks against human dignity during movement of population (phase one).

15.4.1.5. Superior Responsibility

892. Superior responsibility depends upon an accused's ability to exercise effective control over subordinates, that is the actual power to take reasonable and necessary measures to prevent or punish the crimes. According to the Closing Order and as relevant to Case 002/01, NUON Chea is responsible as a superior and exercised effective control over the RAK, Zone, Sector and District Committee members, local militia and cadre. |2792| The Chamber recalls that the crimes committed in the course of movement of population (phase one) were carried out by Khmer Rouge soldiers fighting as Cambodian People's National Liberation Armed Forces, and acting under the direct authority of their commanders and Zone secretaries. |2793| Crimes committed during subsequent population movements were carried out by Khmer Rouge soldiers from various Zones acting within the new structure of the RAK and officials acting within the established administrative hierarchy. |2794|

15.4.1.5.1. Superior-Subordinate relationship

893. At all times NUON Chea was Deputy Secretary of the Party and a full-rights member of the Standing and Central Committees. Along with POL Pot, the only person who was officially senior to him, NUON Chea exercised ultimate decision-making power. |2795| Although Khmer Rouge forces attacking Phnom Penh were under the direct control of the Zones, not the Party Centre, |2796| in the lead up to 1975, Khmer Rouge forces executed a number of orders from the CPK leadership, including from NUON Chea, to attack and forcibly transfer the inhabitants of the cities upon their capture. |2797| Further, in early-April 1975, immediately prior to the attack on Phnom Penh, Zone secretaries and military commanders were present at B-5 and reported to NUON Chea and to other senior leaders on the progress of Khmer Rouge advances on Phnom Penh. |2798|

894. In view of the foregoing, the Chamber is satisfied that the most senior CPK members, including NUON Chea, played a key role in ordering particular attacks, which were subsequently carried out. The Chamber accepts the view of Expert Phillip SHORT that "[i]t would not have been possible for Zone commanders to act against or outside the broad policy consensus which had been laid down by the Centre." |2799| Accordingly, the Chamber finds that a de facto superior-subordinate relationship existed between NUON Chea and both the Zone secretaries and military commanders in April 1975.

895. Further, the CPK Statute provided that any party member or party echelon which opposed the Party's organizational stances violated Party discipline and was subject to sanctions, including removal from duties and rejection from the Party. |2800| The Chamber recalls that NUON Chea, in addition to being responsible for propaganda and training of cadre, was also assigned responsibility for discipline. |2801|

896. Accordingly, the Chamber is satisfied that by virtue of the CPK Statute and his assigned responsibilities, NUON Chea possessed both de jure and de facto authority to discipline insubordinate members of the Party and military.

15.4.1.5.2. Knew or had reason to know

897. As outlined above, the Chamber is satisfied that NUON Chea, through his senior leadership roles, knew or had reason to know, that Khmer Rouge forces would commit the crimes during the evacuation of Phnom Penh. |2802| For example, NUON Chea knew that the evacuation of Phnom Penh would result in mass killings of, Khmer Republic officials, among others. |2803|

15.4.1.5.3. Failure to prevent or punish

898. Despite evidence of deaths resulting from movements of the population prior to April 1975, NUON Chea failed to take any reasonable measures to prevent further deaths and killings during the forced evacuation of Phnom Penh. For example, there was no attempt to conduct the evacuation in an ordered or incremental fashion. Further, despite personally witnessing dead bodies in Phnom Penh, |2804| and being aware that Khmer Republic officials continued to be targeted, and even killed in subsequent years, |2805| NUON Chea did not subsequently seek to investigate or to punish Khmer Rouge soldiers for the killings committed during the transfer of the population of Phnom Penh. The Chamber considers that NUON Chea failed to take necessary and reasonable measures to prevent or punish the crimes committed during the course of movement of population (phase one). Consequently, the Chamber is satisfied that NUON Chea is responsible as a superior for crimes against humanity of murder, extermination, political persecution and the other inhumane acts of forced transfer and attacks against human dignity which were committed during movement of population (phase one).

15.4.2. Crimes Committed During Movement of Population (Phase Two)

15.4.2.1. Planning

899. The Chamber is satisfied that, over a series of meetings beginning in late 1975 and continuing throughout the relevant time period, NUON Chea, with others, planned the crimes against humanity of extermination, political persecution and other inhumane acts of forced transfer, enforced disappearance and attacks against human dignity committed in the course of movement of population (phase two).

900. From 25 April 1975, at the latest, NUON Chea met with other senior leaders concerning policies to build and defend a self-reliant, independent and socialist country. |2806| The plan was to create a classless society in which all would be organised into cooperatives to rapidly build and defend the country, focusing in particular on rice production and irrigation projects. |2807| These plans originated in, and were based on, the Party's experience in the liberated Zones where, in order to supply the manpower needed to accomplish these projects, a consistent pattern of urban evacuations and movements between rural areas had emerged prior to 17 April 1975 and continued thereafter. |2808| Despite this experience, there is no evidence that the plan included any measures providing for the health, well-being or consent of the people to be gathered into cooperatives. This plan therefore contemplated and involved the crimes committed in the course of phase two.

901. NUON Chea participated alongside other key leaders in the May 1975 meeting that discussed the leadership's plan to bring about socialist revolution by implementing collectivisation, |2809| effectively precluding any possibility that those removed from Phnom Penh would return to their homes and instead providing for further population movements.

902. In late 1975, NUON Chea, collectively with others, developed a specific economic plan. This plan acknowledged the shortages of food and medicine especially affecting the 'New People'. Nevertheless, the plan involved allocating labour strategically according to the Party's rice production target and infrastructure priorities, expanding the cooperatives, and rewarding the 'Old People' to the detriment of the suspect 'New People'. After the Standing Committee visited the Northwest Zone in August 1975 (a visit either attended by NUON Chea or of which he was at least aware by means of written reports), the Standing Committee decided to reallocate an additional 400,000 to 500,000 people to the region. |2810| The Party leadership also planned and ordered the movement of 20,000 to Preah Vihear (Sector 103) and others to Kampong Thom (Central (old North) Zone). |2811| In September 1975, the Central Committee, including NUON Chea as a full-rights member, endorsed the August 1975 decision. |2812| The Party leadership disseminated a document analysing progress in implementing the Party's agricultural policy in the previous four to five months and outlining a plan to move more than half a million people to other Zones in order to meet rice production requirements and acknowledged that shortages of medicine and food affected the 'New People' who were forcibly evacuated from Phnom Penh in particular. |2813| Despite the Party's extensive experience of the serious problems associated with forced urban evacuations and movements between rural areas, there is no evidence that the plan which emerged in late 1975 included any measures providing for the consent, health or well-being of those to be moved. Accordingly, the late 1975 plan to move people between rural areas contemplated and involved the crimes committed in the course of phase two.

903. The Chamber recalls that Party policy mandated that enemies, namely city-people or 'New People', as well as Khmer Republic officials, |2814| were to be re-educated or smashed. |2815| The Party, including NUON Chea, intended that this be implemented in part through population movements and the creation of collectives which enabled identification of those considered 'enemies.' |2816|

904. Accordingly, the Chamber is satisfied that the leadership, including NUON Chea, planned and designed policies which enabled 'enemies' to be identified and reeducated, or to disappear. The Chamber is further satisfied that the leadership, including NUON Chea, planned and designed the second phase of population transfer. After being made, these plans were disseminated through the Party ranks including in policy documents and issues of Revolutionary Flag. |2817| The Party Centre, in conjunction with Zone, Sector and District officials, controlled the means and modes of transportation. |2818| As provided for in the plans and consistent with a pattern of conduct, people were then transferred to work sites and areas reputedly with the most fertile land. |2819| Accordingly, in approving plans to move segments of the population around the country and knowing that CPK policy would be strictly implemented by lower-level cadre and Khmer Rouge forces, the Chamber is satisfied that NUON Chea was aware of the substantial likelihood that Khmer Rouge officials and soldiers would commit these crimes. Insofar as the crimes reflected the implementation of Party policy, the Party's plans contributed substantially to the commission of the crimes. The Chamber thus finds NUON Chea individually responsible for planning the crimes against humanity of extermination, political persecution and other inhumane acts of forced transfer, enforced disappearance and attacks against human dignity committed in the course of movement of population (phase two).

15.4.2.2. Ordering

905. As discussed above, the leadership, including NUON Chea, decided upon population movements which occurred in September 1975-December 1977. It also designed policies which enabled 'enemies' to be identified and re-educated, or to disappear and continuously stressed the importance of the principle of secrecy. The Chamber has found above that NUON Chea played a key role in the formulation of decisions of the Party leadership and that these decisions were conveyed through the administrative and military hierarchy and then implemented by Khmer Rouge forces. |2820| That the lower-level cadres accepted the de facto authority and decisions of NUON Chea through the Party Centre and implemented Party policy both to move populations and identify enemies demonstrates that the decisions amounted to orders.

906. In ordering population movements to meet production needs and to facilitate the weeding out of enemies, the Chamber is satisfied that NUON Chea was aware of the substantial likelihood that the crimes against humanity of extermination, political persecution and other inhumane acts of forced transfer, enforced disappearance and attacks against human dignity, would occur.

907. The Party's orders to transfer populations and identify enemies substantially contributed to the ongoing commission of the crimes. NUON Chea, together with POL Pot, exercised the ultimate decision-making power of the Party, |2821| and used this de jure and de facto authority over lower-level Khmer Rouge cadres and soldiers to order Phase two of movement of population. The Chamber therefore finds it established that NUON Chea is individually criminal responsible for having ordered the crimes against humanity of extermination, political persecution and other inhumane acts of forced transfer, enforced disappearance and attacks against human dignity committed during the course of these transfers.

15.4.2.3. Instigating

908. As previously indicated, instigating requires that the Accused's conduct prompted the commission of the crimes meaning that his act or omission substantially contributed to the conduct of the perpetrator committing the crime. The Chamber has found that NUON Chea collectively with others planned movement of population (phase two) and that this plan substantially contributed to the commission of the crimes. The Chamber has also found that NUON Chea, together with POL Pot, exercised the ultimate decision-making power of the Party, and used this de jure and de facto authority to instruct lower-level Khmer Rouge cadres and soldiers to commit crimes that occurred during movement of population (phase two). NUON Chea played a leading role in the indoctrination of Khmer Rouge cadres and soldiers particularly regarding training cadre on maintaining vigilance against enemies, and in the strict indoctrination of peasants on class struggle which included the identification of all 'New People' and former Khmer Republic officials as enemies.

As discussed above, the leadership, including NUON Chea designed policies which enabled 'enemies' to be identified and re-educated, or to disappear and continuously stressed the importance of the principle of secrecy. The Chamber is satisfied that NUON Chea's involvement, alongside other leaders, in formulating these policies preceded and substantially contributed to the crimes which were committed in the course of movement of population (phase two). Further, in view of NUON Chea's positions of authority at the time of the evacuation of Phnom Penh, the Chamber is satisfied his trainings, statements and involvement in issuing Revolutionary Flag were understood by lower-level Khmer Rouge cadres and soldiers as a direct incitement to commit crimes against those considered 'enemies.' Therefore the Chamber is satisfied that through his conduct, NUON Chea prompted the perpetrators to commit the crimes during movement of population (phase two).

909. Finally, adopting the reasoning outlined above with respect to "planning", |2822| the Chamber is satisfied that in designing and ordering population movements, NUON Chea intended, or at a minimum was aware of the substantial likelihood, that crimes would be committed in execution of the Party's instructions. The Chamber is therefore satisfied that NUON Chea is criminally responsible for instigating the crimes against humanity of extermination, political persecution and other inhumane acts of forced transfer, enforced disappearance and attacks on human dignity during the course of movement of population (phase two).

15.4.2.4. Aiding and abetting

910. The Chamber is satisfied that NUON Chea provided encouragement and moral support to the perpetrators of the crimes committed during movement of population (phase two). In propaganda materials and indoctrination sessions, NUON Chea disseminated, endorsed, praised and encouraged the Party's economic policies providing for the strategic allocation of labour and class struggle. |2823|

911. This conduct had a substantial effect on the commission of the crimes. The Chamber is satisfied that it encouraged lower-level Khmer Rouge officials and soldiers to act zealously in implementing the Party's policies.

912. The Chamber is also satisfied that NUON Chea was aware that his actions and support of the Party's policies to transfer populations and identify class enemies legitimated and fortified the resolve of Khmer Rouge soldiers and officials to commit the crimes. Through his support for the common purpose and the policies of population movements and targeting of Khmer Republic officials, the Chamber is also satisfied that NUON Chea was aware of the essential elements of the crimes. Accordingly, the Chamber finds NUON Chea criminally responsible for aiding and abetting the direct perpetrators to commit the crimes against humanity of extermination, political persecution and other inhumane acts of forced transfer, enforced disappearance and attacks against human dignity during movement of population (phase two).

15.4.2.5. Superior Responsibility

15.4.2.5.1. Superior-Subordinate relationship

913. It has been established that NUON Chea maintained a superior-subordinate relationship and exercised effective control over Khmer Rouge armed forces during the time period relevant to Case 002/01. |2824| In view of his senior position as the Party Deputy Secretary and in light of the strict, hierarchical administrative structure put in place by the CPK Statute, NUON Chea had de jure authority over those in the established line of command. Additionally, having regard to the strict reporting line through which the lower echelons briefed senior leaders on key matters and requested guidance, the Chamber is satisfied NUON Chea also exercised de facto authority over all Khmer Rouge cadres.

914. The Chamber will now assess NUON Chea's authority over the newly restructured RAK. In July 1975, with the incorporation of Khmer Rouge forces into the RAK, a number of Zone military brigades were brought under the control of the Central Committee; specifically, under the command of the General Staff, headed by SON Sen. |2825| When SON Sen received information on matters of military affairs and national defence, he in turn briefed the Standing Committee. He also forwarded written messages and reports received from military commanders to other CPK leaders, including NUON Chea, with handwritten annotations and requests for instructions. |2826| The CPK Statute adopted in January 1976 at the Fourth Congress provided that the RAK was wholly subordinate and subjected to "the absolute leadership monopoly of the Communist Party of Kampuchea". |2827| As several surviving telegrams from 1977-78 evidence, Zones not only reported on battlefield situations and fighting on the border with Vietnam to 'Angkar' or the leadership, copying NUON Chea, but also asked for instructions. |2828| The Chamber is thus also satisfied that the CPK, including NUON Chea, maintained a superior-subordinate relationship and continued to exercise effective control over the newly restructured Khmer Rouge forces known as the RAK after July 1975.

15.4.2.5.2. Knew or had reason to know

915. As outlined above, |2829| the Chamber is satisfied that NUON Chea, through his senior leadership roles, knew or had reason to know that Khmer Rouge forces would commit the crimes against humanity of extermination, political persecution and other inhumane acts of forced transfer, enforced disappearance and attacks against human dignity during the course of movement of population (phase two). Further, his knowledge that crimes were committed during the first phase of population transfer put NUON Chea on notice that crimes would be committed in subsequent population transfers.

15.4.2.5.3. Failure to prevent or punish

916. Despite this knowledge, NUON Chea failed to take any reasonable measures to prevent further crimes at the hands of Khmer Rouge soldiers and officials during subsequent population movements. NUON Chea did not subsequently seek to investigate or to punish the perpetrators of these crimes.

917. Consequently, the Chamber is satisfied that NUON Chea is responsible as a superior for the crimes against humanity of extermination, political persecution and other inhumane acts of forced transfer, enforced disappearance and attacks against human dignity committed by Khmer Rouge soldiers and officials during population movements effected from late 1975.

15.4.3. Crimes Committed at Tuol Po Chrey

15.4.3.1. Planning

918. Throughout the democratic revolution, Khmer Republic officials were targeted for arrest, execution and disappearance after they surrendered or were rendered hors de combat. |2830| This policy was endorsed by Party leaders. Indeed, by June 1974, it was closely linked to the population movement policy: moving people to the cooperatives facilitated the identification and elimination of government agents, spies and pacifist agents. |2831| During a meeting in June 1974, the Central Committee, including NUON Chea, decided upon a plan for the final offensive to liberate the country. |2832| Prior experiences, in particular at Oudong where Khmer Republic officials were executed en masse, were discussed at this meeting and formed the basis for the plan which resulted. The Chamber is therefore satisfied that the plan contemplated and involved the arrest, execution and disappearance of Khmer Republic officials in conjunction with the forced transfer of the population of urban areas. |2833| During a meeting of senior leaders in early April 1975, which NUON Chea attended and participated in, the plan for the final offensive was affirmed. |2834|

919. The Chamber has already found that senior leaders, such as NUON Chea and KHIEU Samphan, knew of the substantial likelihood that crimes would result on a large scale from policies grounded in the principle of secrecy; strict indoctrination of uneducated peasants on class struggle, including the identification of all 'New People' and former Khmer Republic officials as enemies; and the objective of pursuing national independence at all costs. |2835| The plans reached in relation to the targeting of Khmer Republic officials were undertaken pursuant to and in furtherance of these policies. |2836| The Chamber finds that, as a general matter, the plans necessarily involved and contemplated that crimes would be committed on a large scale, including at Tuol Po Chrey.

920. This plan preceded and substantially contributed to the crimes perpetrated at Tuol Po Chrey. The plan was disseminated through the chain of command by those present at the June 1974 and April 1975 meetings. |2837| In the days following the liberation of Pursat, which the Chamber has found occurred not long after the liberation of Phnom Penh on 17 April 1975, the Northwest Zone Committee, chaired by Secretary ROS Nhim, ordered the assembly and execution of Khmer Republic officials in Pursat. |2838| This order was consistent with the plan for the final offensive and with a pattern of conduct which began before 17 April 1975 and continued thereafter. |2839| The Chamber is therefore satisfied that this order was made pursuant to the plan reached at the June 1974 meeting and affirmed at the April 1975 meeting. Following the order, Khmer Rouge cadres, acting under the authority of the Northwest Zone Committee and Secretary ROS Nhim, began assembling Khmer Republic officials approximately on 24 April 1975, and later around 25 or 26 April 1975, transferred them to Tuol Po Chrey where they were executed. |2840|

921. The Chamber has already found that NUON Chea knew of the substantial likelihood that crimes, including those committed at Tuol Po Chrey, would be committed. |2841| The Chamber is therefore satisfied that in planning the final offensive to liberate the country, NUON Chea intended or was aware of a substantial likelihood of the commission of these crimes upon the execution of the plan.

922. The Chamber therefore finds that NUON Chea is criminally responsible for planning the crimes against humanity of murder, extermination and political persecution committed at Tuol Po Chrey.

15.4.3.2. Ordering

923. As discussed above, |2842| NUON Chea had de facto and de jure authority over lower-level Khmer Rouge. The Chamber is satisfied that NUON Chea used this authority to order the crimes committed at Tuol Po Chrey. During the meeting in June 1974, the Central Committee, including NUON Chea, decided upon a plan for the final offensive to liberate the country, which, as outlined above, contemplated and involved the arrest, execution and disappearance of Khmer Republic officials in conjunction with the forced transfer of the population of urban areas. |2843| After this meeting, meeting attendees were instructed to disseminate information about the conclusions reached to their respective Zones of competence. |2844| After the further meeting of senior leaders in early April 1975, which NUON Chea attended and participated in, and at which the plan for the final offensive was affirmed, |2845| orders were again conveyed to military commanders for implementation. |2846| As part of the dissemination of orders through the ranks, in April 1975, the Northwest Zone Committee, chaired by Secretary ROS Nhim, ordered the assembly and execution of Khmer Republic officials in Pursat. Following this order, Khmer Rouge cadres, acting under the authority of the Northwest Zone Committee and Secretary ROS Nhim, began assembling Khmer Republic officials approximately on 24 April 1975, and later around 25 or 26 April 1975, transferring them to Tuol Po Chrey where they were executed. |2847|

924. NUON Chea, together with POL Pot, exercised the ultimate decision-making power of the Party, |2848| and used this de jure and de facto authority over lower-level Khmer Rouge to order the crimes at Tuol Po Chrey. The Chamber is satisfied that the decisions and instructions of the leadership amounted to orders which were implemented, |2849| and that the lower-level cadres accepted the authority and decisions of the CPK Party. These orders preceded and substantially contributed to the commission of the crimes.

925. Adopting the reasoning outlined above in relation to "planning", |2850| the Chamber is satisfied that in ordering the final offensive, NUON Chea intended, or at a minimum was aware of the substantial likelihood that crimes would be committed in execution of the Party's instructions. The Chamber is therefore satisfied that NUON Chea is criminally responsible for ordering the crimes against humanity of murder, extermination and political persecution committed at Tuol Po Chrey.

15.4.3.3. Instigating

926. The Chamber has found that NUON Chea collectively planned the forced transfer of the inhabitants of cities, that he contributed to the adoption and dissemination of policies aimed at putting into place specific measures against former Khmer Republic officials and that this plan substantially contributed to the commission of the crimes. The Chamber has also found that NUON Chea, together with POL Pot, exercised the ultimate decision-making power of the Party, and used this de jure and de facto authority to instruct lower-level Khmer Rouge cadres and soldiers to commit crimes that occurred at Tuol Po Chrey. NUON Chea played a leading role in the indoctrination of Khmer Rouge cadres and soldiers particularly regarding training cadre on maintaining vigilance against enemies, and in the strict indoctrination of peasants on class struggle which included the identification of all 'New People' and former Khmer Republic officials as enemies. As discussed above, the leadership, including NUON Chea designed policies which enabled 'enemies' to be identified and re-educated, or to disappear and continuously stressed the importance of the principle of secrecy. The Chamber is satisfied that NUON Chea's involvement, alongside other leaders, in formulating these policies preceded and substantially contributed to the crimes which were committed at Tuol Po Chrey. Further, in view of NUON Chea's positions of authority at the time of the evacuation of Phnom Penh, the Chamber is satisfied his trainings, statements and involvement in issuing Revolutionary Flag were understood by lower-level Khmer Rouge cadres and soldiers as a direct incitement to commit crimes against those considered enemies. Therefore the Chamber is satisfied that through his conduct, NUON Chea prompted the crimes committed at Tuol Po Chrey as through his personal involvement he substantially contributed to the conduct of the perpetrator committing the crimes. As discussed above, the leadership, including NUON Chea, designed and ordered the final offensive to liberate the country which, as outlined above, contemplated and involved the arrest, execution and disappearance of Khmer Republic officials in conjunction with the evacuation of urban areas. |2851| The Chamber is satisfied that through his role in formulating decisions of the Party leadership, which were conveyed through the administrative and military hierarchy and then implemented by Khmer Rouge forces, NUON Chea prompted or induced the crimes committed at Tuol Po Chrey.

927. Adopting the reasoning outlined above in relation to "planning", |2852| the Chamber is satisfied that in ordering the final offensive, NUON Chea intended, or at a minimum was aware of the substantial likelihood that crimes would be committed in execution of the Party's instructions. The Chamber is therefore satisfied that NUON Chea is criminally responsible for instigating the crimes against humanity of murder, extermination and political persecution committed at Tuol Po Chrey.

15.4.3.4. Aiding and abetting

928. The Trial Chamber is satisfied that NUON Chea provided encouragement and moral support to the perpetrators of the crimes committed at Tuol Po Chrey. This encouragement and moral support manifested itself through his participation in the decision concerning the final offensive to liberate the country, which, as outlined above, contemplated and involved the arrest, execution and disappearance of Khmer Republic officials in conjunction with the evacuation of urban areas. He further provided encouragement and moral support to the perpetrators via his role, before and after the crimes, in propaganda materials and training sessions, advocating the identification and elimination of Khmer Republic officials. |2853|

929. NUON Chea's encouragement and moral support had a substantial effect on the commission of crimes at Tuol Po Chrey. NUON Chea's words and actions in disseminating, and advocating implementation of, the policies encouraged the perpetrators to commit the crimes. Further, the CPK's approval of the policies had a legitimising effect which facilitated the realisation of the crimes. Recalling that pre-17 April 1975 conduct relating to the elimination of Khmer Republic officials must be considered in the context of the armed conflict, the Chamber notes that, although these propaganda materials did not differentiate between combatants and other Khmer Republic officials, the Chamber is satisfied that it encouraged soldiers engaged in hostilities, as well as those criminally targeting Khmer Republic officials.

930. In relation to his conduct after the fact, the Chamber notes that the policy to target Khmer Republic officials was pre-existing, as was NUON Chea's role in training and propaganda. The Chamber is therefore satisfied that the perpetrators anticipated and contemplated that NUON Chea would continue to justify, encourage and look to win further support for the revolution through his propaganda and indoctrination efforts. It thereby encouraged the perpetrators, facilitating and having a substantial effect on the commission of the crimes.

931. The Chamber has already found that NUON Chea not only knew that the crimes committed during phase one would likely be committed, but that he that intended them. He also knew of the consistent pattern of executions before, during and after the crimes at Tuol Po Chrey. With this knowledge and intent, NUON Chea provided encouragement and moral support to the perpetrators of crimes committed at Tuol Po Chrey. Accordingly, the Chamber finds that NUON Chea is responsible for aiding and abetting the direct perpetrators to commit the crimes against humanity of murder, extermination and political persecution at Tuol Po Chrey

15.4.3.5. Superior Responsibility

932. The Chamber has found it established that Khmer Rouge soldiers and officials under the authority of the Northwest Zone committed murder, extermination and political persecution through execution as crimes against humanity at Tuol Po Chrey.

15.4.3.5.1. Superior-Subordinate relationship

933. It has been established that NUON Chea held a superior-subordinate relationship and exercised effective control over Khmer Rouge forces and Zone secretaries at the time of the capture of Phnom Penh. |2854| The Chamber is satisfied the analysis applies equally to the events at Tuol Po Chrey which unfolded in the Northwest Zone under the authority of its Secretary, MUOL Sambath alias ROS Nhim, in the days following the capture of Phnom Penh. The Chamber notes that NUON Chea and ROS Nhim had an ongoing working relationship from long before 17 April 1975. ROS Nhim was a member of the Central Committee, and he attended the Second and Third Party Congress with NUON Chea and other CPK leaders in 1963 and 1971 respectively. |2855| NUON Chea visited ROS Nhim in Samlaut on many occasions |2856| and ROS Nhim was present at the June 1974 meeting at which the CPK leaders, including NUON Chea, decided to empty all the cities, including Phnom Penh, once the country was liberated. |2857|

934. After 17 April 1975, ROS Nhim and other Zone secretaries attended regular meetings, inter alia with, NUON Chea, to discuss the implementation of CPK policies, |2858| including the May 1975 meeting at the Silver Pagoda. |2859| Thereafter, throughout the course of the DK period, NUON Chea travelled to Battambang every three to four months to meet ROS Nhim, |2860| who held an honorary position as second deputy chairman of the State Presidium, showing the level of confidence the Party Centre afforded him. |2861| ROS Nhim also came to Phnom Penh on a "regular basis" to meet with Party leaders, including NUON Chea. |2862| Surviving telegrams before the Chamber from ROS Nhim to the CPK leadership from the DK period also regularly reported on internal enemies, |2863| and requested advice or guidance. |2864| Although these telegrams date from well after the events at Tuol Po Chrey, in the Chamber's view they demonstrate that NUON Chea exercised de facto authority over ROS Nhim. The Chamber is thus satisfied that a superior-subordinate relationship existed between ROS Nhim, in his capacity as Northwest Zone Secretary, and the members of the Party Centre, including NUON Chea, which dating from before 17 April 1975.

15.4.3.5.2. Knew or had reason to know

935. The NUON Chea Defence submitted that there is no evidence that NUON Chea was informed of the events at Tuol Po Chrey, |2865| yet later acknowledged that NUON Chea "recalled receiving unconfirmed reports that executions may have taken place". |2866| Even were the Chamber to accept that NUON Chea had no express knowledge of events at Tuol Po Chrey, an Accused is not required to have knowledge of the specific crimes of their subordinates in order for the former's responsibility as a superior to be activated. An Accused's responsibility is triggered where he or she knew or had reason to know, that his subordinates had engaged in, were engaging in, or were about to engage in criminal conduct. |2867|

936. The Chamber has found that NUON Chea, through his senior leadership roles, knew from past experience that Khmer Rouge forces involved in liberating other cities in the years before April 1975 had committed mass killings of Khmer Republic officials precisely because they were labelled as the enemy. |2868| In view of his role in developing the Targeting Policy, |2869| the Chamber is satisfied NUON Chea knew and intended that the same mass killings of, among others, Khmer Republic officials, would repeat itself as other cities were evacuated after the capture of Phnom Penh.

937. In view of the prior occurrence of mass executions of Khmer Republic officials, the Chamber is also satisfied NUON Chea was aware that his subordinates possessed discriminatory intent and knew that their acts would constitute political persecution.

15.4.3.5.3. Failure to prevent or punish

938. In an interview, NUON Chea claimed that had he known of the killings at Tuol Po Chrey he would have taken measures to stop them. |2870| In the Chamber's view, his role in developing the Targeting Policy establishes otherwise. Further, despite evidence of killings and persecution of Khmer Republic officials during the prior evacuation of cities, including Phnom Penh, NUON Chea failed to take any reasonable measures to prevent further persecution. As the Co-Prosecutors have failed to establish to the required standard of proof that the particular events at Tuol Po Chrey subsequently came to NUON Chea's attention, the Chamber will not consider whether NUON Chea also failed to punish his subordinates after the events. In any event, while the NUON Chea Defence submits there is evidence that some measures were taken to stop executions of former government officials, in particular in Phnom Penh from May to October 1975, |2871| the evidence is vague and fails to clearly identify who was responsible for those measures. As such, this evidence fails to clarify the extent of NUON Chea's role, if any.

939. Consequently, for failing to prevent the crimes at Tuol Po Chrey, the Chamber is satisfied that NUON Chea is responsible as a superior for the crimes against humanity of murder, extermination and political persecution committed by Khmer Rouge soldiers and officials of the Northwest Zone at Tuol Po Chrey.

15.5. Conclusion

940. The Chamber has found that NUON Chea, through a JCE, committed the crimes against humanity of murder, political persecution and other inhumane acts (comprising forced transfer and attacks against human dignity) during movement of population (phase one); political persecution and other inhumane acts (comprising forced transfer and attacks against human dignity) during movement of population (phase two); and murder and extermination at Tuol Po Chrey. The Chamber has also found that the Accused planned, ordered, instigated and aided and abetted the aforementioned crimes during movement of populations (phases one and two) and at Tuol Po Chrey. Considering that the Accused's participation in the JCE encompasses all the conduct forming the basis of the Chamber's findings on these other forms of responsibility, the Chamber will enter a conviction only for commission of these crimes through a JCE.

941. Further, the Chamber has found that NUON Chea is both directly responsible and responsible as a superior for all crimes committed in the course of movement of population (phases one and two) and at Tuol Po Chrey. Having found that the Accused was directly responsible for these crimes through his participation in the JCE, the Chamber declines to enter a conviction under the doctrine of superior responsibility. It will instead consider the Accused's superior position in sentencing.

942. The Chamber also finds that NUON Chea planned, ordered, instigated and aided and abetted the crimes of extermination (during movement of population phases one and two), and other inhumane acts (comprising enforced disappearances) (during movement of population phase two). Finally, the Chamber finds that NUON Chea planned, ordered, instigated, aided and abetted political persecution (at Tuol Po Chrey).

16. THE CRIMINAL RESPONSIBILITY OF KHIEU SAMPHAN

943. According to the Closing Order as limited in Case 002/01, KHIEU Samphan, through a JCE, committed the following crimes against humanity:

    Movement of population (phase one): murder, political persecution, and other inhumane acts (comprising forced transfer and attacks against human dignity);

    Movement of population (phase two): political persecution and other inhumane acts (comprising forced transfer and attacks against human dignity); and

    Tuol Po Chrey: murder and extermination through executions of Khmer Republic officials. |2872|

The Closing Order alleges that KHIEU Samphan intentionally participated in, or contributed to, the design and implementation of the common purpose which resulted in and/or involved the commission of crimes both before and during the DK era. By virtue of his positions during the DK era, including his membership of the Central Committee and Office 870, the Closing Order alleges that KHIEU Samphan attended and contributed to meetings, including Standing Committee meetings, where policy was discussed and disseminated. He also made public statements, performed diplomatic functions and participated in indoctrination sessions, thereby endorsing and disseminating the common purpose internationally and domestically. |2873| On this basis, the Closing Order further alleges that the Accused planned, ordered, instigated, aided, abetted or, alternatively, is responsible as a superior for all crimes against humanity falling within the scope of Case 002/01. |2874|

16.1. Knowledge Relevant to the Modes of Liability

944. KHIEU Samphan's knowledge of the policies, patterns of conduct and specific crimes falling within the scope of Case 002/01 is relevant to the Chamber's assessment of the chapeau requirements for crimes against humanity and all forms of responsibility, and will therefore be addressed first. The requisite level of knowledge varies depending on whether the criminal liability of the Accused materialises before, concurrent with or after the commission of the crimes. |2875| Therefore, in this section, the Chamber will examine whether, prior to the commission of the crimes falling within the scope of Case 002/01, the Accused was aware of the substantial likelihood of their later occurrence (Section 16.1.1), and whether the Accused had knowledge of the crimes concurrent with (Section 16.1.2) or after their commission (Section 16.1.3).

945. By his speeches and through training sessions, KHIEU Samphan personally participated in the indoctrination of people on class struggle and the need to ensure the independence of the country. By these actions, he also contributed to the identification of feudalists and capitalists as enemies and generally of all the 'New People' as people who needed to be tempered. KHIEU Samphan knew that such indoctrination to hate would inevitably lead to violence. He also agreed with the view that the revolution should rely on the peasants of the lowest classes in order to impose on Cambodia the dictatorship of the proletariat. Those belonging to this new ruling class had very little formal education, but were strictly disciplined, indoctrinated, taught to deceive people and behave in accordance with the principle of secrecy. KHIEU Samphan could not ignore that giving extensive power to such people would lead to unquestioning implementation of the party line without the exercise of proper judgment. For this reason, the only reasonable expectation was that vast numbers of people would die during forced population movements because of the conditions of transport, and that such movements would involve the commission of many crimes against humanity. Furthermore, in order to exclude witnesses and avoid international criticism, KHIEU Samphan constantly supported the principle of secrecy and contributed to the decision to evacuate all foreigners still present in Phnom Penh. Indeed, he played a key role in preserving the secrecy fostered by the regime, continuously denying and hiding the reality of the situation experienced by the Cambodian people. KHIEU Samphan knew that, in doing so, he protected perpetrators and allowed the commission of further crimes.

946. KHIEU Samphan made various admissions concerning his general knowledge of the policies and crimes being committed by the Khmer Rouge. He knew that violent acts of a criminal nature were being perpetrated against the civilian population in implementing CPK policies. |2876| He believed however, that human rights were a concern secondary to the pressing issue of the independence of Cambodia. The well-being of the people and the need to seek their consent to sacrifice and suffer for the policies of the Khmer Rouge could wait. |2877| Indeed, KHIEU Samphan was convinced that coercion was necessary to collectivise society. He knew that the goal of collectivisation was achieved under duress and he endorsed this aspect of the policy. |2878| He expected that people would die during population movements |2879| and was aware of the Party's fear that, unless eliminated, Khmer Republic officials might stage a counter-revolution following liberation. |2880| As set out below, in public statements during the democratic and socialist revolutions, KHIEU Samphan further demonstrated his knowledge of the policies and crimes. |2881| Moreover, throughout the time period relevant to Case 002/01, KHIEU Samphan had wide-ranging access to information concerning the crimes.

16.1.1. Awareness of the Substantial Likelihood of the Commission of the Crimes

947. In a process initiated in May 1972 and officially confirmed one year later, the Central Committee decided to close markets in the liberated zones and to establish cooperatives, pooling labour resources for rice production with the purpose of "[attacking] the power of the classes of feudalists, land owners, and capitalists." |2882| In 1972, IENG Sary gave a public interview concerning collectivisation in the liberated zones. |2883| CPK circulars assigned people to collective agricultural production. |2884| Further, conditions of transport, the health or the well-being of the people were of no concern. In the July 1973 issue of Revolutionary Flag, the Party leadership, while noting shortages in the liberated zones, declared its commitment to continue forced transfer of population, leaving it to the people to resolve their own problems. |2885| Pursuant to this population movement policy, consistent patterns of forced urban evacuations and movements between rural areas emerged in the liberated zones, accompanied by ill-treatment, discrimination against people taken from enemy territory and against Khmer Republic officials, and deaths resulting from acts of terror, the conditions of transfer and the use of force. |2886|

948. Drawing on this prior experience, in June 1974 and then again in April 1975, senior leaders, including KHIEU Samphan, collectively planned to forcibly transfer the population of urban areas. This plan contemplated and/or involved the crimes against humanity of murder, extermination, political persecution, and other inhumane acts (comprising forced transfers and attacks against human dignity). |2887| Further, based on prior experience, in particular at Oudong, the June 1974 plan to evacuate all the cities once the country was liberated also contemplated and/or involved the targeting of Khmer Republic officials for execution, arrest or disappearance following the liberation of an area. |2888| Following June 1974, the pattern of emptying urban areas of their inhabitants and targeting Khmer Republic officials intensified. |2889|

949. At the time these policies were decided upon, patterns of conduct emerged, CPK circulars issued, and public statements on these topics made by members of the Party Centre, KHIEU Samphan lived and worked in close proximity with other senior leaders, producing FUNK propaganda, traveling throughout the liberated zones and carrying out diplomatic functions, including visiting Beijing in order to liaise with NORODOM Sihanouk. |2890| The Chamber is therefore satisfied that KHIEU Samphan knew of these CPK policies and of the resulting patterns of conduct adopted in order to implement them.

950. The Chamber also notes that various foreign states circulated reports of the execution of Khmer Republic officials and other enemies in the liberated zones before 17 April 1975. |2891| On the basis of his diplomatic roles, KHIEU Samphan was himself in contact with foreign diplomats who would have had access to this information. Moreover, foreign diplomats were also in contact with NORODOM Sihanouk and other external FUNK/GRUNK officials. |2892| As liaison with NORODOM Sihanouk and other FUNK/GRUNK officials, the Chamber is satisfied that KHIEU Samphan was notified of at least some of these reports.

951. For all these reasons, the Chamber finds that KHIEU Samphan knew of the policies to evacuate urban areas, move people between rural areas and target Khmer Republic officials before 17 April 1975, and the accompanying patterns of conduct which had emerged. He therefore knew of the substantial likelihood that further implementation of these policies would, consistent with the ongoing patterns of conduct, result in the crimes committed in the course of phases one and two and at Tuol Po Chrey.

952. Finally, specific to his awareness in relation to movement of population (phase two), the Chamber also finds that KHIEU Samphan knew that living conditions throughout the country were dire after 17 April 1975, characterised by food shortages and disease. |2893| In April 1975, late 1975 and late 1976, Party leaders, including KHIEU Samphan, nevertheless planned forced population movements during phase two without providing for the consent, the health or the well-being of those to be transferred. These plans therefore inevitably contemplated and involved the crimes that would later be committed. |2894| These plans were disseminated in instructional meetings, policy documents and Revolutionary Flag and Revolutionary Youth magazines before and during phase two. |2895| Revolutionary Flag and Revolutionary Youth magazines were delivered to all DK Ministries and offices of the Party Centre. |2896| Considering his participation in planning the crimes during phase two, his attendance at instructional meetings and his access to Revolutionary Flag and Revolutionary Youth magazines, the Chamber is satisfied that KHIEU Samphan also knew of the substantial likelihood that these plans and policies to move people between rural areas would, consistent with an ongoing pattern of conduct, result in the commission of the crimes during phase two.

16.1.2. Knowledge Concurrent with the Commission of the Crimes

16.1.2.1. Movement of Population (Phase One)

953. Beginning on 17 April 1975 and for the next week while the evacuation of Phnom Penh was ongoing, the military leaders whose troops were carrying out the crimes committed during phase one sought and received instructions from senior leaders at B-5, where KHIEU Samphan was based. |2897| Meanwhile, the forced transfers, accompanying ill-treatment and deaths, arrests of Khmer Republic officials, and claimed justifications were reported by news agencies and various states. |2898| Some diplomatic reports concerning the evacuation were relayed to NORODOM Sihanouk and PENN Nouth, who were in contact with the leaders of the internal resistance, in particular KHIEU Samphan as their designated liaison. |2899| The Chamber is also satisfied that external GRUNK officials, including officials of the internal resistance travelling abroad during the time when Phnom Penh was emptied of its inhabitants or based in Hanoi, such as IENG Sary and IENG Thirith, would have had access to some of these diplomatic and public news reports. These officials were in contact with the internal resistance via radio and telegram throughout the democratic revolution |2900| and the Chamber is satisfied that this contact continued following the liberation of Phnom Penh. The Chamber is therefore satisfied KHIEU Samphan had knowledge of the crimes concurrent with their commission in phase one.

16.1.2.2. Executions at Tuol Po Chrey

954. On and after 17 April 1975, further towns throughout Cambodia were liberated, and were accompanied by the arrest, execution, disappearance and other ill-treatment of Khmer Republic officials immediately before, during or immediately after the transfer of all city dwellers. |2901| Consistent with this ongoing pattern of conduct, after the liberation of Pursat, Khmer Republic officials were assembled by deceptive means and executed at Tuol Po Chrey on 25 or 26 April 1975. |2902| Prior to the events at Tuol Po Chrey, KHIEU Samphan was based at B-5 and around the time of the executions he had moved to the Phnom Penh railway station. At both locations, he met with other senior leaders, including zone secretaries and military leaders. |2903|

955. Therefore, although there is no evidence that he knew of the specific nature of the crimes committed at Tuol Po Chrey, the Chamber is satisfied that he had concurrent knowledge of the on-going pattern of targeting of Khmer Republic officials for arrest, execution, disappearance and other ill-treatment after an area was liberated and therefore knew that at least some Khmer Republic officials were being executed at the time the executions at Tuol Po Chrey occurred.

16.1.2.3. Movement of Population (Phase Two)

956. During phase two, there was an ongoing pattern of forced movements between rural areas characterised by ill-treatment, discrimination against 'New People', and deaths resulting from the conditions of transport, terror-inducing acts of Khmer Rouge soldiers and the use of force. |2904| Zones and Autonomous Sectors reported to the Centre concerning population movements during phase two. |2905| Thousands of people were moved by boat, truck and train to, from and past the largely deserted Phnom Penh. |2906| KHIEU Samphan also visited the countryside, in particular in early 1976, where he witnessed the living conditions of tens of thousands working with their bare hands. |2907| In contemporaneous public statements, KHIEU Samphan acknowledged that tens of thousands had been collected at various worksites. |2908| The forced allocation of labour pursuant to the Party's economic policy and the class struggle was reported and praised at instructional meetings and in party publications while the crimes were ongoing in phase two. |2909| News agencies and various foreign states also reported forced transfers, the poor conditions of transport and resulting deaths, and discrimination against 'New People' while the crimes were ongoing in phase two. |2910| The Ministries of Propaganda and Foreign Affairs collected and disseminated reports to senior leaders. |2911|

957. For all these reasons, taken together, the Chamber is therefore satisfied that KHIEU Samphan had concurrent knowledge of the crimes committed in the course of phase two.

16.1.3. Knowledge Arising after the Commission of the Crimes

958. After the commission of crimes in phases one and two and at Tuol Po Chrey, KHIEU Samphan, in public statements, demonstrated his knowledge of the evacuation of Phnom Penh, the justifications for it, the collection of tens of thousands of labourers at worksites, the policy to target enemies and the ongoing discrimination against 'New People'. |2912| The policies and resulting crimes were also discussed later during education sessions, conferences, speeches during Independence Day celebrations, congresses, in policy documents, and in Revolutionary Flag and Revolutionary Youth magazines after the crimes were committed. KHIEU Samphan attended indoctrination sessions, congresses and conferences where these matters were addressed. |2913| He had access to Revolutionary Flag and Revolutionary Youth which were delivered to ministries and offices of the Party Centre. |2914| Finally, news agencies, international organisations and various foreign states also reported allegations of atrocities, including forced transfers, inhumane conditions, discrimination against 'New People', and executions of former Khmer Republic officials. The Ministries of Propaganda and Foreign Affairs collected and disseminated these reports to senior leaders. |2915| Considering his diplomatic functions, the Chamber is satisfied that KHIEU Samphan knew of allegations of human rights violations, particularly as these matters have inevitably been raised during his trips abroad or in his meetings with foreign officials. Indeed, some reports were addressed to KHIEU Samphan in his capacity as President of the State Presidium. |2916|

959. On the basis of the foregoing, the Chamber finds that KHIEU Samphan was therefore also on notice of the crimes after their commission.

16.2. Commission through a Joint Criminal Enterprise

16.2.1. Contribution

960. The KHIEU Samphan Defence concedes that KHIEU Samphan contributed to the Khmer Rouge regime, including in his roles as diplomat, liaison with NORODOM Sihanouk and economist. It submits, however, that KHIEU Samphan's contributions were insignificant because he held no position of authority. |2917| The Chamber has found that KHIEU Samphan exercised some degree of authority during the time period relevant to Case 002/01, particularly by virtue of his economic and senior positions. |2918| However, under the sections addressing the charges that the Accused was responsible as a superior for the crimes, the Chamber finds that there is insufficient evidence to conclude that he exercised effective control over the perpetrators of the crimes during movement of population (phases one and two) and at Tuol Po Chrey. |2919| An accused need not, however, hold a position of authority, in fact or in law, in order to make a significant contribution to a JCE, although a position of authority may be relevant to this determination. |2920|

961. Between 1970 and 1975, KHIEU Samphan was FUNK Deputy Chairman, GRUNK Deputy Prime Minister, Minister of National Defence and Commander-in-Chief of the CPNLAF. |2921| From 1971, he was a candidate member of the Central Committee. |2922| In October 1975, KHIEU Samphan was appointed one of two members of Office 870 and assigned responsibility for "the Front and the Royal Government, and Commerce for accounting and pricing". |2923| In January 1976, KHIEU Samphan became a full-rights member of the Central Committee. |2924| In March 1976, he was appointed a member of the Purchasing Committee and chairman of the Banking Committee. |2925| Then, in April 1976, KHIEU Samphan formally became President of the State Presidium. |2926|

962. Acting in these positions, KHIEU Samphan stated that he was willing to do whatever he could to help and to refrain from doing anything that might hinder the Khmer Rouge. |2927| He attended policy meetings of the Standing and Central Committees, as well as Party congresses, where the common purpose and policies were planned and developed (Section 16.2.1.1). He attended and participated in meetings where instructions and lessons were given concerning the common purpose and policies (Section 16.2.1.2). He held economic positions where, drawing on his experience and education, he implemented elements of the common purpose relating to trade, imports/exports and commerce (Section 16.2.1.3). He made public statements endorsing the common purpose and policies, and encouraging all to build and defend the country according to the Party line (Section 16.2.1.4). Finally, in his roles as liaison with NORODOM Sihanouk and diplomat, he justified, defended and praised the common purpose and policies, winning support for the Khmer Rouge and facilitating the secret and largely unhindered implementation of the common purpose through radical policies (Section 16.2.1.5).

963. For these reasons, set out in more detail below, the Chamber finds that KHIEU Samphan participated in the JCE, thereby making a significant contribution. In order to hold KHIEU Samphan responsible for crimes committed by Khmer Rouge soldiers and officials who are not participants in the JCE, it must be shown that the crime can be imputed to at least one JCE participant and that this participant, when using a direct perpetrator (that is, those Khmer Rouge soldiers and officials who physically committed the crimes), acted in accordance with the common purpose. |2928| The Chamber has found that the crimes can be imputed to various participants in the JCE. |2929| The Chamber's findings below that KHIEU Samphan planned, instigated, aided and abetted the crimes at issue (Sections 1.3-1.5) also demonstrate a sufficient link between the direct perpetrators and KHIEU Samphan. |2930| The Chamber is therefore satisfied that liability for these crimes can be directly imputed to KHIEU Samphan.

16.2.1.1. Policy Meetings: Planning the Common Purpose

964. KHIEU Samphan attended meetings of the Central and Standing Committees, as well as Party congresses, throughout the revolutionary and DK eras, at which the common purpose to implement rapid socialist revolution and defend the country, as well as the policies deemed necessary to achieve the common purpose, were planned and decided upon.

965. KHIEU Samphan was in contact with the CPK leadership from the early 1960s. |2931| After fleeing to the maquis in 1967, he moved from village to village in the liberated Zones under the protection of the Khmer Rouge. In 1969, he resided in places controlled by Ta Mok, where he witnessed the start of the armed struggle. |2932| The Chamber is therefore satisfied that, by 1969 when he joined the CPK, |2933| KHIEU Samphan was well aware of the common purpose decided upon at the First and Second Party Congresses, as well as its development during meetings of Party leaders in the liberated Zones, and that he assented to it, saying that he joined the CPK, despite disagreeing with some of their actions, for the sake of Cambodian independence. |2934| At the Third Party Congress, in 1971, collectively with other Party members, KHIEU Samphan affirmed the Party's strategic lines adopted at previous congresses, including commitment to the class struggle. |2935|

966. In June 1974, KHIEU Samphan, with other senior leaders, planned for the final offensive to liberate the country. The last prong of this plan was the transfer of city dwellers, and in particular those living in Phnom Penh. Those at the meeting were ordered to disseminate the plan. |2936| In early April 1975, KHIEU Samphan attended a meeting at which the decision to empty Phnom Penh of its inhabitants upon liberation was affirmed and thereafter disseminated through the ranks. |2937|

967. By 25 April 1975, at latest, KHIEU Samphan formed part of the group of CPK leaders residing at the Phnom Penh railway station, and thereafter at the former Ministry of Finance building and the Silver Pagoda, where meetings were held to discuss policies and plans to build and defend a self-reliant, independent and socialist country, such as the establishment of cooperatives. |2938| Later, KHIEU Samphan was based at K-3, and after POL Pot relocated, he regularly visited POL Pot's residence at K-1. At both locations, he met with other senior leaders, including NUON Chea. |2939|

968. KHIEU Samphan participated in the development of the plan, reflected in September and November 1975 policy documents, to forcibly allocate labour resources strategically according to production targets and infrastructure priorities, reach three tonnes of rice per hectare, focus on the construction of irrigation projects, and reward the 'Old People' to the detriment of the 'New People'. |2940| During the Fourth Party Congress in January 1976, collectively with other Party members, he adopted an amended Statute which affirmed the need for class struggle, democratic centralism, |2941| vigilance against enemies and commitment to the principles of independence-sovereignty and self-reliance. |2942|

969. Between February and March 1976, KHIEU Samphan attended Standing Committee meetings regarding the DK National Assembly elections, the retirement of NORODOM Sihanouk, the monitoring and transmission of news reports to the Standing Committee, the prevailing enemy situation, food shortages and illnesses in Sectors 103 and 106, food distribution, the rice export goal for 1977, a system of weekly reports from the Sector to the Standing Committee, trade and the establishment of committees for banking and purchasing, border problems and planned negotiations with Vietnam. |2943|

970. In May and June 1976, KHIEU Samphan attended Standing Committee meetings concerning foreign policy; commerce and banking contacts with China; border skirmishes with Vietnam; national defence issues, including establishment of an ordnance factory and airfield; the tasks of the army in defence and agricultural production; weaknesses in the Ministry of Health and Social Affairs; responsibility for production; distribution of medicines; prevention of diseases; allocation of labour; shortages of medicine and food. |2944|

971. In late 1976, KHIEU Samphan took part in developing the 1977 economic plan for agricultural production, allocation of labour and division of the people into categories. The plan was later disseminated in the November 1976 issue of Revolutionary Flag. |2945|

972. The Chamber is therefore satisfied that his attendance at meetings and contribution to plans of the Party Centre demonstrate that he not only shared the common purpose which resulted in and/or involved policies to evacuate urban areas, move people between rural areas and target Khmer Republic officials, but that he also played a key role in formulating the content of the common purpose and policies.

16.2.1.2. Instructional Meetings: Disseminating the Common Purpose

973. KHIEU Samphan attended and participated in instructional meetings and indoctrination sessions at which the common purpose and policies were disseminated. During the democratic revolution, KHIEU Samphan assisted with preparation of FUNK propaganda materials and conducted political training sessions in the liberated Zones. |2946| His attendance at, and participation in, instructional meetings concerning the Party's line continued after 17 April 1975.

974. In May 1975, KHIEU Samphan and other senior leaders, including representatives from all Zones, attended a 10-day meeting at the Silver Pagoda. At the meeting, Party leaders provided reasons justifying the evacuations of the cities and instructions to rapidly build and defend the country through the creation of cooperatives and the construction of dams and canals. |2947| Thereafter, between approximately 20 and 25 May 1975, KHIEU Samphan, other senior leaders, representatives from all military units and all District, Sector and Zone secretaries attended meeting(s) at either the Olympic Stadium or the Khmer-Soviet Technical Institute. Instructions were given on the organisation of cooperatives, elimination of private property, prohibition of currency and markets, and building of dams and canals. |2948|

975. KHIEU Samphan also led education sessions in Phnom Penh throughout the DK era. He lectured Zone, Sector and District officials, as well as ordinary cadres, about the identification and elimination of enemies, continuation of the armed struggle, establishment of cooperatives, building of dikes and canals, and completion of work quotas. |2949| He also conducted at least one political study session with returnees in late 1975. During this session, he justified urban evacuations and lectured that knowledge originating from education by the "colonialists and imperialists" had to be forgotten. |2950|

976. The Chamber finds that his attendance at and/or participation in these meetings demonstrate that he not only shared the common purpose which resulted in and/or involved policies to evacuate urban areas, move people between rural areas and target Khmer Republic officials, but also that he played a key role in disseminating the content of the common purpose and policies. Considering his official positions and reputation among the people, his mere presence at meetings facilitated the effectiveness of the instructions delivered, by indicating to those in attendance that he had endorsed the common purpose and policies. This was even further emphasised when he delivered the instructions himself.

16.2.1.3. Economist: Implementing the Common Purpose

977. KHIEU Samphan played an important role in the DK economy and in particular in his capacity as a member of Office 870. He had responsibility for distribution of goods to the Zones; transportation of rice from the Zones to State warehouses and its management; international trade and imports/exports; and use of credit. |2951| From around October 1976, he exercised some level of oversight of the Commerce Committee, which reported to him, often seeking his instructions. |2952|

978. Zone officials made requests to KHIEU Samphan for the delivery of goods. KHIEU Samphan responded with delivery orders. |2953| KHIEU Samphan also visited state warehouses where he inspected products destined for export and encouraged workers to be careful and attentive. |2954| Documents addressed or copied to KHIEU Samphan included reports of discussions with foreign trade delegations and other communications relating to international trade; reports on the quantities of rice sent to the state warehouses, and on the export of rice and other goods; purchase requests from various ministries and lists of imports from China; reports on the use of a line of credit extended to DK by China; and messages to, from or between FORTRA and Ren Fung. |2955|

979. The objective of the common purpose was establishment of self-reliant, modern agricultural state within 10-15 years, and thereafter an industrial economy. Rice and other agricultural exports would provide the capital necessary to fulfill this objective. |2956| The Chamber is therefore satisfied that his economic role demonstrates that he not only shared the common purpose, but also that he played a key role in implementing certain aspects of it.

16.2.1.4. Public Statements: Endorsing the Common Purpose

980. As the highest official in the internal resistance and thereafter in his capacity as a DK leader in particular as President of the State Presidium, KHIEU Samphan made statements in which he praised the policies and conduct of the democratic and socialist revolutions. |2957| He highlighted past successes and encouraged further action, in particular, in relation to agricultural production, the construction of irrigation projects and the elimination of enemies. He also justified the transfer of the population of Phnom Penh. From a position of high repute and respect, he endorsed and supported the policies of the Khmer Rouge, winning support among the people and internationally for the democratic and socialist revolutions. His public speeches also provided some of the few insights into the Khmer Rouge regime, both internationally and within Cambodia where secrecy was strictly enforced.

981. During the democratic revolution, |2958| on FUNK radio, KHIEU Samphan, appealed to the population, inside and outside the country, to join the resistance against the Khmer Republic. |2959| In June 1973 and early April 1975, he publicly asserted that FUNK guaranteed basic freedoms to the Cambodian people. |2960| On 31 December 1974, on FUNK radio, KHIEU Samphan announced the final assault on Phnom Penh, |2961| and in January 1975, he called on the people to annihilate the "traitorous" LON Nol clique, exhorting the people to join and support the resistance. |2962| In March 1975, FUNK issued a statement, allegedly following a late February 1975 National Congress chaired by KHIEU Samphan, which announced that the seven 'super traitors' should be killed, indicating that all other Khmer Republic officials would be spared. |2963| He thereafter publicly repeated this resolution to kill the 'super traitors', guaranteeing that other Khmer Republic officials would be spared if they joined the resistance "before it was too late". |2964|

982. On 15 March 1975, KHIEU Samphan called for intensified struggle, appealing to the people to join the cause of the internal resistance. |2965| On 1 April 1975, he announced on FUNK radio that the seven 'super traitors' had left, or were planning to leave the country to escape punishment. |2966| On 21 April 1975, KHIEU Samphan praised the army for 'liberating' the country, declared that all their enemies had died in agony; and noted the sacrifice of the people in the liberated Zones, and their efforts building dikes, canals and reservoirs. |2967|

983. After 27 April 1975, the Party leadership released a resolution, allegedly approved at a National Congress chaired by KHIEU Samphan, announcing that FUNK/GRUNK structures would be maintained for the time-being; emphasising that no foreign military bases would be tolerated in Cambodia; and re-affirming the government's commitment to the construction of a classless society, free from exploitation, in which all would strive to build and defend the country. |2968|

984. On 14 December 1975, KHIEU Samphan's speech, allegedly delivered at another FUNK National Congress, emphasised the collective policy in all fields and the requirement that all people work either in the fields or factories, increasing rice production and building irrigation projects. KHIEU Samphan also praised the efforts of the people and army during the democratic revolution, referring to the condemnation of the seven 'super traitors'. Finally, he encouraged the class struggle, emphasising the need to oppose the corrupt cultures of the oppressive classes, imperialism and colonialism. |2969|

985. In his inaugural speech at the first and probably only session of the People's Representative Assembly, on 11 April 1976, KHIEU Samphan lied when he claimed that fair and honest elections had been held and that policies regarding work sites, cooperatives and the ongoing class struggle had been endorsed by voters. |2970| Between 15 and 17 April 1976, at Independence Day celebrations, KHIEU Samphan announced the new government's resolve to defend national independence and concentrate on national reconstruction. He also praised the Cambodian people and revolutionary army for their role in the liberation of Phnom Penh, the end of the feudalist-landowner regime, and the ongoing class struggle to "topple" and "uproot" the capitalists. |2971|

986. The following year, KHIEU Samphan's Independence Day speech encouraged continued focus on building and defending the country, self-reliance and preserving the fruits of the revolution. He explained that, after the war, there were shortages of food, livestock and tools. He praised efforts in agriculture, in particular rice production, and the work of "progressive corps" at worksites where between 10,000 and 30,000 workers had been collected at each. He glorified the sacrifices of the people who were self-reliant and worked without machines. He explained that the 'New People' from Phnom Penh were becoming more patriotic as they realised that the road to independence was difficult. Finally, he emphasised that revolutionary vigilance remained necessary to continue the fight against all enemies, preventing them from committing aggression, interference or subversion. |2972| On 30 December 1977, KHIEU Samphan declared that the CPK was "a clear-sighted party", praised the army and people for fighting and defeating the U.S. imperialists and their lackeys, decried Vietnamese aggression and encouraged increased production by constantly adhering to the stance of independence. |2973|

987. These public statements, which whole-heartedly supported the revolution without a hint of criticism, demonstrate that KHIEU Samphan shared the common purpose and policies to evacuate urban areas, move people between rural areas and target Khmer Republic officials for arrest, execution and disappearance. The statements also demonstrate that while his titles and positions were part of a facade, they did serve an important practical purpose as they were used to endorse CPK policies and to deceive people. Using these positions and titles, KHIEU Samphan made public statements in which he presented himself as a key leader and encouraged the Cambodian people and Khmer Rouge cadres to continue implementing the socialist revolution unhindered by the constraints of transparency or publicity, and by any interference and resistance from the people and international community which might otherwise have resulted.

16.2.1.5. Diplomat: Defending the Common Purpose

988. KHIEU Samphan's official roles as leader of the internal resistance and DK President of the State Presidium were important during the democratic and socialist revolutions, as the Khmer Rouge increasingly sought support from NORODOM Sihanouk, other factions in Cambodia and in the international arena. |2974| KHIEU Samphan was widely reputed to be a man of probity and honour: he was generally perceived to be conscientious, incorruptible and principled, and to lead a relatively modest lifestyle. |2975| Thus KHIEU Samphan explained that he was an "expensive commodity" the CPK was anxious to acquire. |2976| Further, since NORODOM Sihanouk did not know POL Pot, it was incumbent upon KHIEU Samphan to establish relations with NORODOM Sihanouk and his supporters. |2977| KHIEU Samphan identified this role as important, if not indispensable. |2978|

989. In 1973, KHIEU Samphan accompanied NORODOM Sihanouk on visits to the liberated Zones. He also received various foreign dignitaries, including from Vietnam in 1974, and traveled abroad on behalf of FUNK/GRUNK, including a multi-country tour in 1974. |2979| In August 1975, KHIEU Samphan appealed to all GRUNK officials abroad to return to Cambodia. He then traveled to China and North Korea to negotiate the return of NORODOM Sihanouk. On 15 August 1975, KHIEU Samphan explained, during a speech in Peking, that Cambodia was engaged in rapidly building and defending the country: the entire country had become a big construction site. |2980|

990. After NORODOM Sihanouk's return to Cambodia following the liberation of the country, KHIEU Samphan accompanied him on visits to the countryside in early 1976, including to worksites where tens of thousands laboured on irrigation projects. On these visits, he praised the construction of dams and canals, and agricultural production. He sought to demonstrate the success and benefits of the socialist revolution, in which he himself believed, where all worked with their bare hands to build and defend their country. |2981|

991. As President of the State Presidium, KHIEU Samphan continued to perform diplomatic and ceremonial functions, welcoming foreign delegations, hosting and attending receptions, sending and receiving diplomatic messages, and leading DK delegations abroad. |2982| In August 1976, at the Fifth Conference of Non-Aligned Countries in Sri Lanka, KHIEU Samphan affirmed that DK was devoted to the principles of self-reliance, independence and neutrality. He explained that the Khmer Rouge had succeeded in its democratic revolution by adhering to the correct Party line. He justified the evacuations on the basis of defence and the prevention of the starvation. Referring to the Mayaguez incident and the Siem Reap bombing, he declared that enemies were still carrying out attempts to destroy the results of the revolution and revolutionary vigilance therefore remained necessary. |2983|

992. KHIEU Samphan thereby endorsed the common purpose and policies to evacuate urban areas, move people between rural areas and target Khmer Republic officials for arrest, execution and disappearance. His diplomatic efforts also demonstrate his on-going contributions to the common purpose and policies. By virtue of his diplomatic positions and his senior role, KHIEU Samphan himself, a respected intellectual and politician, won the Khmer Rouge defenders both in Cambodia and abroad who supported him in his efforts to justify and praise the Party's policies and actions, and to deflect attention and feared interference.

16.2.2. Intent

993. The KHIEU Samphan Defence maintains that he was committed to Cambodian independence and the future well-being of the people: he did not intend the crimes, initially joining the Khmer Rouge only due to the threat of court-martial and execution in 1967. |2984| KHIEU Samphan's motivations for joining the Khmer Rouge and then for participating in the JCE cannot excuse his conduct or negate his criminal intent. Indeed, as set out below, the Chamber considers that his deliberate and continuous participation in the JCE, knowing of the crimes being committed, indicates his criminal intent.

994. KHIEU Samphan asserted that he joined the revolution because it sought to build and defend a self-reliant and independent Cambodia. |2985| From 1969, when he joined the Party, he participated in meetings, congresses and conferences, where the common purpose was affirmed, developed and the policies to implement it were decided upon, including the class struggle against the 'New People', elimination of all elements of the former Khmer Republic, forced urban evacuations and movements between rural areas. |2986| KHIEU Samphan knew of the substantial likelihood that crimes would result from implementation of these policies. |2987| He knew that these policies did in fact result in and/or involve the crimes committed in the course of phases one and two of population movements and at Tuol Po Chrey. |2988| He also had further notice of the crimes after their commission. |2989| Despite this knowledge, he continued to contribute to and approve the progress of the democratic and socialist revolutions. He planned, disseminated, implemented, endorsed and defended the common purpose which resulted in and involved the policies to evacuate urban areas, move people between rural areas and target Khmer Republic officials for arrest, execution and disappearance. |2990| The Chamber has already found that that the crimes during phases one and two of population movements and at Tuol Po Chrey were committed pursuant to and in furtherance of these policies. |2991|

995. The Chamber therefore finds that KHIEU Samphan shared the intent of the other participants in the JCE to bring about the common purpose through implementation of the Party's population movement and targeting policies which resulted in and/or involved the crimes committed during movement of population (phases one and two) and at Tuol Po Chrey. He shared with the other participants in the JCE the intent to commit the other inhumane acts of forced transfer and attacks against human dignity during phases one and two of population movements, murder during phase one of the population movements, as well as murder and extermination at Tuol Po Chrey. Further, in light of his contributions developing, disseminating, endorsing and defending the Partly line on class struggle and the policy to target Khmer Republic officials, the Chamber is also satisfied KHIEU Samphan shared with the other participants in the JCE the requisite discriminatory intent for the crime of political persecution during phases one and two of population movements.

16.2.3. Conclusion

996. The Chamber finds accordingly that KHIEU Samphan, through a JCE (basic form), committed the crimes against humanity of murder, political persecution and other inhumane acts (comprising forced transfer and attacks against human dignity) during movement of population (phase one); political persecution and other inhumane acts (comprising forced transfer and attacks against human dignity) during movement of population (phase two); and murder and extermination at Tuol Po Chrey.

16.3. Other Modes of Liability

16.3.1. Crimes Committed During Movement of Population (Phase One)

16.3.1.1. Planning

997. The Chamber is satisfied that KHIEU Samphan, with others, planned the transfer of the population of Phnom Penh which involved the crimes against humanity of murder, political persecution, extermination and the other inhumane acts of forced transfer and attacks against human dignity. The final offensive to liberate the country and the policy to transfer city dwellers were planned at a series of meetings between 1973 and early April 1975. |2992| KHIEU Samphan attended the June 1974 and early April 1975 meetings. |2993| The Chamber recalls that KHIEU Samphan was a candidate member of the Central Committee at the time of these meetings |2994| and therefore had the right to attend, even if he had no formal "decision rights". |2995| The Chamber is also satisfied that, pursuant to the principle of democratic centralism, he had the right to participate in the debates of this Committee. |2996| The Chamber has found that he expressed his opinion at the April 1975 meeting, but it has been unable to conclude that he intervened actively in the June 1974 meeting. However, even if he did not actively intervene, he had the right to do so and by his silence indicated assent. |2997| He thereby participated in these meetings and endorsed the resulting plans.

998. The Chamber has already found that senior leaders, such as NUON Chea and KHIEU Samphan, knew of the substantial likelihood that crimes would result on a large scale from policies grounded in the principle of secrecy; strict indoctrination of uneducated peasants on class struggle, including the identification of all 'New People' and former Khmer Republic officials as enemies; and the objective to pursue national independence at all costs. |2998| The plans reached in June 1974 and April 1975 were undertaken pursuant to and in furtherance of these policies. |2999| The Chamber finds that the plans reached in June 1974 and April 1975 necessarily involved and contemplated that crimes would be committed on a large scale in the course of phase one.

999. At the June 1974 meeting, the Central Committee discussed in detail the Party's "success" at Oudong, where the population was forcibly displaced, mistreated and many were executed, including Khmer Republic officials. |3000| Having reviewed this experience and knowing that there were already food shortages throughout the country, and in particular in Phnom Penh, the Central Committee nevertheless decided to empty urban areas, including Phnom Penh of their inhabitants, |3001| omitting any measures providing for the consent, the health or well-being of those being transferred. The Chamber is therefore satisfied that those at the June 1974 meeting, also attended by KHIEU Samphan, collectively drew up a plan that contemplated and involved the commission of the crimes committed in the course of phase one, namely murder, political persecution, extermination and the other inhumane acts of forced transfer and attacks against human dignity.

1000. In early April 1975, senior leaders, including KHIEU Samphan, again addressed the evacuation of Phnom Penh. Prior experiences with the transfer of population from urban areas to the countryside, |3002| which formed part of a consistent pattern of conduct beginning before April 1975 |3003| were discussed and reviewed. KHIEU Samphan and other attendees then affirmed the decision to forcibly transfer the population of Phnom Penh. |3004| However, despite reviewing prior experience with evacuations characterised by suffering, discriminatory violence against 'New People' and Khmer Republic officials, and deaths resulting from the conditions of movement, use of force and acts of terror, no provision was made to address all the similar conditions which could be anticipated during the planned transfer of the population from Phnom Penh. The Chamber is therefore satisfied that this plan contemplated and involved the commission of the crimes committed in the course of phase one.

1001. This plan preceded and contributed substantially to the crimes perpetrated during phase one. The plan was disseminated through the chain of command by those present at the June 1974 and April 1975 meetings. |3005| Consistent with a pattern of conduct which began before 17 April 1975 and continued thereafter, |3006| the Khmer Rouge military began implementing the plan only hours after 'liberating' Phnom Penh. |3007|

1002. The Chamber has already found that KHIEU Samphan knew of the substantial likelihood that the crimes would be committed in the course of phase one. |3008| The Chamber is therefore satisfied that in planning the evacuation of Phnom Penh, KHIEU Samphan intended or was aware of a substantial likelihood of the commission of these crimes upon the execution of the plan.

1003. The Chamber finds that KHIEU Samphan is criminally responsible for planning the crimes against humanity of murder, extermination, political persecution and other inhumane acts (comprising forced transfers and attacks against human dignity) committed in the course of movement of population (phase one).

16.3.1.2. Ordering

1004. The Chamber has already indicated that, while it is not necessary to establish a formal superior-subordinate relationship, ordering requires that an accused is in fact or in law in a position of authority to instruct another person to commit a crime. |3009| Evidence must also show that the accused, alone or collectively with others, issued, passed down or otherwise transmitted an order, including through intermediaries.

1005. The Chamber first notes that there is insufficient evidence that KHIEU Samphan alone issued any order to the perpetrators during the time period relevant to Case 002/01, or that any of the perpetrators committed crimes pursuant to an order received from him. KHIEU Samphan was not a direct part of the CPK military structure and the various positions that he held did not give him military authority sufficient to instruct others to commit crimes. While KHIEU Samphan was indeed able to influence others through public statements and radio announcements, the Chamber finds that these positions did not encompass the power to issue orders to the military command. The Chamber is satisfied that KHIEU Samphan never held direct military responsibilities. |3010| Even when he obtained the position of President of the State Presidium, this position was primarily ceremonial and did not in fact entail the authority to issue orders.

1006. The decision to forcibly transfer the population of Phnom Penh was taken collectively at the June 1974 meeting and affirmed at the early April 1975 meeting. Following both meetings, this decision was disseminated through the chain of command. |3011| The Chamber is satisfied that this conduct is properly characterised as ordering. Although KHIEU Samphan had the right to participate in Central Committee meetings and attended other meetings of the Party Centre in which he took part in the collective planning of the evacuation, this participation in these meetings does not demonstrate that he had sufficient authority to give orders collectively with the other members of these meetings. |3012| KHIEU Samphan was also a Central Committee member and a candidate member of the Standing Committee. These positions gave him the capacity to influence the decision-making process particularly because decisions were made pursuant to the principle of democratic centralism and because the other CPK leaders, including POL Pot, placed great trust in him. The Chamber is therefore satisfied that the evidence demonstrates that KHIEU Samphan held positions of some authority. Indeed, he was within close proximity to other senior leaders throughout the democratic and socialist revolutions, |3013| and made significant contributions to the policies decided and implemented by the Khmer Rouge regime, notably through his regular attendance at and participation in key meetings of the Party Centre where the common purpose and policies, including the decision to evacuate Phnom Penh, were planned. |3014|

1007. The Chamber considers, however that in the absence of any evidence that KHIEU Samphan issued any orders, his close connections with the Khmer Rouge regime do not lead to the conclusion that the only reasonable inference from the evidence was that he had the ability to issue orders alone or collectively. In reaching this conclusion, the Chamber also weighed the prevalence of democratic centralism as a decision-making policy within the Party Centre. In addition, the Chamber has not identified any evidence that, prior to 17 April 1975 or while the movement of population of Phnom-Penh was on going the following week, KHIEU Samphan had sufficient authority to issue orders, alone or collectively with other senior leaders. The Chamber therefore dismisses the charge that he is criminally responsible for ordering the crimes committed during movement of population (phase one).

16.3.1.3. Aiding and Abetting

1008. The Chamber is satisfied that KHIEU Samphan provided practical assistance, encouragement and moral support to the perpetrators of the crimes committed during movement of population (phase one). In public speeches during the final offensive on Phnom Penh, KHIEU Samphan praised the Khmer Rouge; claimed that the internal resistance movement was committed to upholding human rights; and declared the resolution to kill the seven 'super traitors'. Further, he encouraged the people in Khmer Republic territory and Khmer Republic officials to join the Khmer Rouge, claiming that only the seven 'super traitors' would be punished. KHIEU Samphan also secured the support of NORODOM Sihanouk whose praise of the Khmer Rouge reassured local and international observers. Finally, after the crimes were committed, KHIEU Samphan praised the Cambodian army and people for their victory, lauded the policies of the Khmer Rouge to conduct socialist revolution through collectivisation, denounced the former regime, and justified the evacuation of Phnom Penh in speeches to the people of Cambodia, statements to the international community and indoctrination sessions with returnees. |3015|

1009. This practical assistance, encouragement and moral support had a substantial effect on the commission of crimes during phase one. KHIEU Samphan played an important, if not indispensable, role with the Khmer Rouge due to his reputation and popularity among the people and internationally. |3016| Based on his reputation, official positions in GRUNK and DK, and unreserved support of the Khmer Rouge, the Chamber is satisfied that the perpetrators were encouraged by KHIEU Samphan's public statements.

1010. The Chamber is also satisfied that, based on his reputation, those residing in Khmer Republic territory and, in particular, Khmer Republic officials, other than the seven 'super traitors', were led to believe that they would not be ill-treated after liberation. This is demonstrated by the welcome the Khmer Rouge received upon 'liberating' Phnom Penh, and the willingness of Khmer Republic officials to respond to instructions to assemble before they were executed en masse. |3017| The false sense of security promoted by KHIEU Samphan made it easier to deceive the urban population and Khmer Republic officials. |3018|

1011. Finally, the Chamber is satisfied that the perpetrators knew, or at least anticipated before and during the transfer of the population of Phnom Penh, that KHIEU Samphan would provide assistance and endorsement after the fact. Indeed, such an expectation was consistent with the support he provided throughout the democratic revolution, in particular during the final offensive on Phnom Penh and in the initial days after liberation. |3019| KHIEU Samphan also concurred with the decision to transfer the population. |3020| The Chamber is therefore satisfied that the plan to evacuate Phnom Penh relied in part on the guarantee that KHIEU Samphan would continue to provide assistance afterwards thereby encouraging the perpetrators and having a substantial effect on the commission of the crimes.

1012. KHIEU Samphan knew that the crimes committed during phase one would likely be committed |3021| and that his conduct assisted or facilitated their commission. The Chamber is also satisfied that KHIEU Samphan was aware at least of the essential elements of the crimes. With this knowledge, KHIEU Samphan provided assistance, encouragement and moral support to the perpetrators of crimes committed during phase one.

1013. The Chamber finds that KHIEU Samphan is criminally responsible for aiding and abetting the crimes against humanity of murder, extermination, political persecution and other inhumane acts (comprising forced transfer and attacks against human dignity) committed in the course of movement of population (phase one).

16.3.1.4. Instigating

1014. Prior to the capture of Phnom Penh, KHIEU Samphan made numerous public speeches praising the Khmer Rouge, lending his stature to plans of the Party Centre and prompting Khmer Rouge soldiers and cadres to take action to implement the policy to forcibly transfer the population of Phnom Penh. |3022| His statements were widely dispersed and due to the trust he enjoyed with the general public, Khmer Rouge soldiers and cadres would have been encouraged to adhere to the call to violence contained in these speeches. KHIEU Samphan also prompted the perpetrators to take action in furtherance of party policy by his presence at meetings discussing the forced transfer of the inhabitants of Phnom Penh. In particular, he supported the Party Centre in decisions taken at the June 1974 and April 1975 meetings to evacuate the city. |3023| In those meetings, KHIEU Samphan applauded the decision to forcibly transfer the population of Phnom Penh. Furthermore, KHIEU Samphan personally participated in the indoctrination of people on class struggle and knew that such indoctrination would inevitably lead to crimes. |3024| The only reasonable expectation was that vast numbers of people would suffer and/or die during the forced population movements. Having actively encouraged and prompted people in Cambodia to join the Khmer Rouge and participate in the Party's policies, KHIEU Samphan took no steps to mollify or diminish the violence inherent to the forced transfer of people. All of these acts and omissions substantially contributed to the conduct of the Khmer Rouge soldiers and cadres who committed crimes during the forced transfer of the population of Phnom Penh.

1015. The Chamber has already found that KHIEU Samphan knew of the substantial likelihood that the crimes would be committed in the course of phase one. The Chamber is therefore satisfied that by making public statements encouraging Khmer Rouge soldiers and cadre, he intended or was aware of a substantial likelihood of the commission of these crimes during movement of population (phase one). The Chamber therefore finds that KHIEU Samphan is criminally responsible for instigating the crimes against humanity of murder, extermination, political persecution and other inhumane acts (comprising forced transfers and attacks against human dignity) committed during movement of population (phase one).

16.3.1.5. Superior Responsibility

1016. Superior responsibility depends upon an accused's ability to exercise effective control over subordinates, that is the actual power to take reasonable and necessary measures to prevent or punish the crimes. |3025|

1017. The crimes committed in the course of movement of population (phase one) were carried out by Khmer Rouge soldiers under the direct authority of their commanders, Zone and Autonomous Sector secretaries. |3026| KHIEU Samphan was present, together with army officers, at B-5 during the final offensive against Phnom Penh. |3027| He addressed combatants in various broadcasts. |3028| However, the Chamber has already found that, while he participated in meetings where CPK policies were discussed, KHIEU Samphan did not have sufficient authority to order crimes in phase one (as set out above in relation to the charge of ordering the crimes, Section 16.3.1.2). |3029| In the circumstances, the Chamber concludes that KHIEU Samphan did not have effective control prior to or during the commission of crimes in phase one and therefore had no accompanying duty to prevent the crimes.

1018. The Chamber next considers the Accused's effective control, in fact or in law, after the commission of the crimes, and whether he had any accompanying duty to punish the perpetrators. Although KHIEU Samphan held various senior titles in the FUNK/GRUNK and DK facades which identified him publicly as the most senior leader of the internal resistance and, from April 1976, head of state, |3030| there is no evidence that he issued any orders to the perpetrators during the time period relevant to Case 002/01. Acting in these positions, however, and bearing in mind his public announcements concerning the seven 'super traitors', KHIEU Samphan contributed to the JCE, assisting, encouraging, defending and otherwise supporting the Khmer Rouge regime. |3031| The evidence does not however, demonstrate that KHIEU Samphan exercised effective control over the direct perpetrators of the crimes by virtue of these positions in FUNK/GRUNK or DK.

1019. Further, within the Party structures, it was NUON Chea, not KHIEU Samphan, who had responsibility for disciplining Party members. |3032| KHIEU Samphan was a candidate member, and as of January 1976, a full rights member of the Central Committee. However, this body had no ultimate decision-making authority: rather, the Standing Committee was the highest decision-making body throughout the DK era. |3033| The Chamber has found that the principle of democratic centralism afforded KHIEU Samphan the opportunity to participate in meetings of the Party Centre he attended, in particular the Standing Committee, but that does not establish that he exercised effective control. |3034|

1020. KHIEU Samphan did have authority over certain economic bodies of the Party Centre, in particular after he assumed a level of oversight of the Commerce Committee in late 1976. |3035| However, the perpetrators of the crimes in phase one did not belong to these economic bodies and there is no evidence that KHIEU Samphan exercised effective control over the perpetrators through his economic authority. The Chamber has found that KHIEU Samphan exercised some level of broader authority. However, this finding was limited to his ability to ensure the safety of some of his family members in the countryside in 1978. |3036| It therefore cannot form the basis of any finding that he exercised effective control during the time period at issue in Case 002/01.

1021. Finally, the Chamber notes KHIEU Samphan's continuing proximity to senior leaders throughout the time period relevant to Case 002/01, and his continuing importance in the Khmer Rouge regime and significant participation in the JCE, in particular his regular attendance at and participation in meetings and plans of the Standing Committee and other organs of the Party Centre. |3037| The Chamber is not satisfied that this evidence leads only to a conclusion that he exercised effective control. Substantial influence alone does not establish effective control within a command structure. |3038|

1022. Overall, the Chamber is not satisfied from the totality of the evidence that KHIEU Samphan was a superior, in the sense of having the ability to decide upon and take measures to prevent or punish the crimes. Indeed, there are other reasonable inferences that may be drawn from the totality of the evidence other than KHIEU Samphan's effective control over the perpetrators. The Chamber therefore dismisses the charge that the Accused is responsible as a superior for the crimes committed in the course of movement of population (phase one).

16.3.2. Crimes Committed During Movement of Population (Phase Two)

16.3.2.1. Planning

1023. The Chamber is satisfied that, over a series of meetings beginning in late April 1975 and continuing throughout the relevant time period, KHIEU Samphan, with others, planned the crimes committed in the course of movement of population (phase two). The Chamber has already found that senior leaders, such as NUON Chea and KHIEU Samphan, knew of the substantial likelihood that crimes would result on a large scale from the implementation of policies grounded in the principle of secrecy; strict indoctrination of uneducated peasants on class struggle, which included the identification of all 'New People' and former Khmer Republic officials as enemies; and the objective to pursue national independence at all costs. |3039| The plans for movement of population (phase two) were undertaken pursuant to and in furtherance of these policies. |3040| The Chamber finds that the plans reached necessarily involved and contemplated that crimes would be committed on a large scale in the course of phase two.

1024. From 25 April 1975, at the latest, KHIEU Samphan met with other senior leaders concerning policies to build and defend a self-reliant, independent and socialist country. |3041| The plan was to create a classless society in which all would be organised into cooperatives to rapidly build and defend the country, focusing in particular on rice production and irrigation projects. |3042| These plans originated in, and were based on the Party's experience in the liberated Zones where a consistent pattern of urban evacuations and movements between rural areas had emerged prior to 17 April 1975 and continued thereafter. |3043| Despite this experience, there is no evidence that the plan included any measures providing for the well-being or consent of the people to be gathered into cooperatives. This initial plan therefore contemplated and involved the crimes committed in the course of phase two.

1025. In late 1975, KHIEU Samphan, collectively with others, developed a specific economic plan. This plan acknowledged the shortages of food and medicine especially affecting the 'New People'. Nevertheless, the plan was to allocate labour strategically according to the Party's rice production target and infrastructure priorities, expand the cooperatives, and reward the 'Old People' to the detriment of the suspect 'New People'. Specific, large-scale population movements were also decided upon, such as from southern Cambodia to Sector 103, the Northwest and Central (old North) Zones. |3044| Despite the Party's extensive experience with urban evacuations and movements between rural areas, there is no evidence that the plan which emerged in late 1975 included any measures providing for the consent, the health or well-being of those to be moved. Accordingly, the late 1975 plan to move people between rural areas contemplated and involved the crimes committed in the course of phase two.

1026. Thereafter, KHIEU Samphan also participated in developing the economic plan for 1977. Largely affirming the goals and policies set out in previous plans, the 1977 plan again provided for the strategic allocation of labour according to infrastructure priorities and a new, more ambitious production target, and the division of people according to their class. |3045| Yet, despite the Party's experience with adverse consequences of consistent patterns of urban evacuations and movements between rural areas, the plan did not include any measures providing for the consent, the health or well-being of those to be moved in 1977. The 1977 plan to move people between rural areas therefore contemplated and involved the crimes committed in the course of phase two.

1027. These 1975 and 1977 plans preceded and substantially contributed to the commission of crimes during phase two. After being made, these plans were disseminated through the Party ranks including in policy documents and issues of Revolutionary Flag |3046| The Party Centre, in conjunction with Zone, Sector and District officials, controlled the means and modes of transportation of those who were displaced. |3047| As provided for in the plans and consistent with a pattern of conduct, people were then transferred to work-sites and areas reputedly with the most fertile land. |3048|

1028. The Chamber has already found that KHIEU Samphan knew of the substantial likelihood that the crimes would be committed in the course of phase two. |3049| Despite this knowledge, collectively with others, he continued to plan economic policies which relied upon forced population movements as a cornerstone and ignored the principles of necessity and proportionality. |3050| The Chamber therefore finds that KHIEU Samphan intended, or was aware of the substantial likelihood of, the commission of crimes upon execution of these plans.

1029. The Chamber finds that KHIEU Samphan is criminally responsible for planning the crimes against humanity of extermination, political persecution and other inhumane acts (comprising forced transfer, enforced disappearances and attacks against human dignity) committed in the course of movement of population (phase two).

16.3.2.2. Ordering

1030. The Chamber is satisfied that instructions from the Centre were issued concerning movement of population (phase two) and that these instructions constituted orders. The Chamber has found however that there is no evidence that KHIEU Samphan himself issued any order to the perpetrators during the time period relevant to Case 002/01, or that any of the perpetrators committed crimes pursuant to an order received from him. Although the Chamber has found that KHIEU Samphan influenced the formulation of DK policies where they were discussed in accordance with the principle of democratic centralism, that he remained in close proximity to the leaders of the Khmer Rouge regime, and that he retained positions in GRUNK and as President of the State Presidium, the Chamber was unable to conclude that the only reasonable inference from the evidence was that he had the ability to issue orders alone or collectively. |3051| The fact that KHIEU Samphan had a position of authority over economic bodies, in particular from late 1976 when he assumed some level of oversight of the Commerce Committee does not change these findings. Indeed, despite his influence and participation in the planning of the crimes during movement of population phase two, the Chamber is unable to ascertain whether he had decisionmaking authority in relation to these plans and in turn, whether the orders emanated from, or even if they were merely transmitted by, KHIEU Samphan. In any case, the evidence is unclear as to his precise role and the Chamber is not satisfied on the evidence before it that the Commerce Committee issued orders to the perpetrators. The Chamber therefore dismisses the charge that KHIEU Samphan ordered the crimes committed in the course of movement of population (phase two).

16.3.2.3. Instigating

1031. Having participated in the planning of movement of population (phase two), KHIEU Samphan made numerous public speeches prior to and during these forced transfers of the population, praising the Khmer Rouge and supporting the policies to build the economy by collective work in fields. These public speeches prompted Khmer Rouge soldiers and cadres to forcibly move the population during phase two. In April 1975, late 1975 and late 1976, knowing that living conditions in the country were dire, KHIEU Samphan, along with the other Party leaders, nevertheless planned forced population movements without providing for the consent, the health or the well-being of those to be transferred. |3052| He then endorsed these plans publicly. In December 1975, KHIEU Samphan gave a speech emphasising the collective policy and the requirement that all people work in the fields or in factories, increasing rice production and building irrigation projects. |3053| He praised the efforts of the people and army. Likewise, in April 1976, he made a speech claiming falsely that the policies regarding work-sites, cooperatives and the on-going class struggle had been endorsed by voters of the PRA. He also praised the Cambodian people and the RAK for their role in the liberation of Phnom Penh, while knowing the crimes that the first population movement had entailed. These public statements whole-heartedly supported the forced movement of the population without a hint of criticism. KHIEU Samphan also maintained his positions in FUNK/GRUNK lending an imprimatur of legitimacy to the Khmer Rouge without addressing the inevitable suffering associated with the forced transfer of the population to worksites and collectives. |3054|

1032. The Chamber has already found that KHIEU Samphan knew of the substantial likelihood that the crimes would be committed in the course of phase two. The Chamber is therefore satisfied that by making public statements encouraging Khmer Rouge soldiers and cadre, he intended or was aware of a substantial likelihood of the commission of these crimes during movement of population (phase two). These acts and omissions prompted Khmer Rouge soldiers and cadres to forcibly transfer thousands of people to worksites and fields during movement of population (phase two). KHIEU Samphan's actions substantially contributed to the commission of crimes during this movement of population. The Chamber therefore finds that KHIEU Samphan is criminally responsible for instigating the crimes against humanity of extermination, political persecution and other inhumane acts (comprising forced transfer, enforced disappearances and attacks against human dignity) committed in the course of movement of population (phase two).

16.3.2.4. Aiding and Abetting

1033. The Chamber is satisfied that KHIEU Samphan provided practical assistance, encouragement and moral support to the perpetrators of crimes during movement of population (phase two). In public statements in the months leading up to and during phase two, KHIEU Samphan praised the Khmer Rouge; justified and endorsed their policies to build and defend the country by strategic allocation of labour forces according to production targets, infrastructure priorities and the class struggle; and justified or denied their crimes. He repeated these themes during indoctrination sessions, including of intellectuals returning from abroad. KHIEU Samphan also performed diplomatic duties and liaised with NORODOM Sihanouk, securing support and praising the conduct of the socialist revolution, including the manual labour of all to build and defend the country. |3055|

1034. This practical assistance, encouragement and moral support had a substantial effect on the commission of crimes during phase two. Based on his reputation, official positions in GRUNK and DK, and unreserved support of the Khmer Rouge, |3056| the Chamber is satisfied that the perpetrators were encouraged by his public statements.

1035. KHIEU Samphan knew that the crimes committed during phase two would likely be committed |3057| and that his conduct assisted or facilitated their commission. The Chamber is also satisfied that KHIEU Samphan was aware at least of the essential elements of the crimes. With this knowledge, KHIEU Samphan provided assistance, encouragement and moral support to the perpetrators of crimes committed during phase two.

1036. The Chamber finds that KHIEU Samphan is criminally responsible for aiding and abetting the crimes against humanity of extermination, political persecution and other inhumane acts (comprising forced transfer, enforced disappearances and attacks against human dignity) committed in the course of movement of population (phase two).

16.3.2.5. Superior Responsibility

1037. During phase two, the perpetrators were Khmer Rouge cadres and officials under the direct authority of the Zones and Sectors and the Army General Staff, subject to the ultimate decision-making authority of the Standing Committee. |3058| The perpetrators of the crimes in phase one were similarly situated and the Chamber therefore adopts its reasoning above concerning the absence of adequate evidence that KHIEU Samphan exercised effective control over such perpetrators during the time period at issue in Case 002/01. |3059|

1038. The Chamber has also considered evidence that the Commerce Committee played an initial role in organising population movements during phase two. |3060| However, the evidence is unclear as to the specifics of this role and the Chamber is unable to determine whether the Commerce Committee exercised effective control over the perpetrators. The Chamber is also unable to determine that the Commerce Committee continued to play any role in movements after early 1976. Accordingly, although the Accused exercised some authority over certain economic bodies, in particular oversight of the Commerce Committee from late 1976, the Chamber is not satisfied that this evidence demonstrates his effective control over the perpetrators of the crimes in phase two. The Chamber therefore dismisses the charge that KHIEU Samphan is responsible as a superior for the crimes committed in the course of movement of population (phase two).

16.3.3. Crimes Committed at Tuol Po Chrey

16.3.3.1. Planning

1039. Throughout the democratic revolution, Khmer Republic officials were targeted for arrest, execution and disappearance after they surrendered or were rendered hors de combat. |3061| The Party leadership endorsed the policy to target Khmer Republic officials, at the latest, during a meeting of the Central Committee in June 1974. Indeed, by June 1974, this targeting policy was closely linked to the population movement policy: moving people to the cooperatives facilitated the identification and elimination of government agents, spies and pacifist agents. |3062| At the June 1974 meeting, which KHIEU Samphan attended and in which he participated, the Central Committee decided upon a plan for the final offensive to liberate the country. |3063| Prior experiences, in particular at Oudong where Khmer Republic officials were executed en masse, were discussed at this meeting and formed the basis for the plan which resulted. The Chamber is therefore satisfied that this plan contemplated and involved the arrest, execution and disappearance of Khmer Republic officials in conjunction with the transfer of the population of urban areas. |3064| During a meeting of senior leaders in early April 1975, which KHIEU Samphan attended and in which he participated, the plan for the final offensive was affirmed. |3065|

1040. The Chamber has already found that senior leaders, such as NUON Chea and KHIEU Samphan, knew of the substantial likelihood that crimes would result on a large scale from policies grounded in the principle of secrecy; strict indoctrination of uneducated peasants on class struggle, including the identification of all 'New People' and former Khmer Republic officials as enemies; and the objective to pursue national independence at all costs. |3066| The plan reached in relation to the targeting of Khmer Republic officials was undertaken pursuant to and in furtherance of these policies. |3067| The Chamber finds that the plan reached necessarily involved and contemplated that crimes would be committed on a large scale, including at Tuol Po Chrey.

1041. This plan preceded and substantially contributed to the crimes perpetrated at Tuol Po Chrey. The plan was disseminated through the chain of command by those present at the June 1974 and April 1975 meetings. |3068| In the days following the liberation of Pursat, which the Chamber has found occurred not long after the liberation of Phnom Penh on 17 April 1975, the Northwest Zone Committee, chaired by Secretary ROS Nhim, ordered the assembly and execution of Khmer Republic officials in Pursat. |3069| This order was consistent with the plan for the final offensive and with a pattern of conduct which began before 17 April 1975 and continued thereafter. |3070| The Chamber is therefore satisfied that it was taken pursuant to the plan reached at the June 1974 meeting and affirmed at the April 1975 meeting. Following these orders, Khmer Rouge cadres, acting under the authority of the Northwest Zone Committee and Secretary ROS Nhim, began assembling Khmer Republic officials approximately on 24 April 1975, and later around 25 or 26 April 1975, thereafter transferring them to Tuol Po Chrey where they were executed. |3071|

1042. The Chamber has already found that KHIEU Samphan knew of the substantial likelihood that crimes, such as those committed at Tuol Po Chrey, would be committed. |3072| The Chamber is therefore satisfied that in planning the final offensive to liberate the country, KHIEU Samphan intended or was aware of a substantial likelihood of the commission of these crimes upon the execution of the plan.

1043. The Chamber therefore finds that KHIEU Samphan is criminally responsible for planning the crimes against humanity of murder, extermination and political persecution committed at Tuol Po Chrey.

16.3.3.2. Ordering

1044. On the evidence before it, the Chamber is unable to conclude that KHIEU Samphan had authority in fact or in law to give orders when the policy concerning elimination of Khmer Republic officials was decided upon or disseminated. |3073| The Chamber notes that KHIEU Samphan did participate in the dissemination of this policy in instructional meetings that he conducted or to which he contributed: |3074| however, this followed the execution of Khmer Republic officials at Tuol Po Chrey. The Chamber therefore dismisses the charge that KHIEU Samphan ordered the execution of former Khmer Republic officials at Tuol Po Chrey.

16.3.3.3. Instigating

1045. Prior to the capture of Phnom Penh, KHIEU Samphan made numerous public speeches praising the Khmer Rouge, lending his stature to plans of the Party Centre and prompting Khmer Rouge soldiers and cadres to target Khmer Republic officials for mistreatment. |3075| His statements were widely dispersed and due to the trust he enjoyed with the general public, they would have been encouraged to adhere to the call to violence contained in these speeches. His public statements therefore substantially contributed to the conduct of the Khmer Rouge soldiers who executed the Khmer Republic officials at Tuol Po Chrey. KHIEU Samphan also prompted the perpetrators to take action in furtherance of these plans by his presence at meetings reaffirming the policy of targeting Khmer Republic officials. |3076| In particular, the Chamber notes that he supported the Party Centre in decisions taken at the June 1974 and April 1975 meetings and that ROS Nhim's order to assemble and execute Khmer Republic Officals at Tuol Po Chrey was taken pursuant to these decisions. |3077| KHIEU Samphan's acts and omissions therefore substantially contributed to the crimes at Tuol Po Chrey.

1046. The Chamber has already found that KHIEU Samphan knew of the substantial likelihood that the crimes such as those committed at Tuol Po Chrey would be committed. The Chamber is therefore satisfied that by making public statements encouraging Khmer Rouge soldiers and cadre, he intended or was aware of a substantial likelihood of the commission of these crimes. The Chamber therefore finds that KHIEU Samphan is criminally responsible for instigating the crimes against humanity of murder, extermination and political persecution committed at Tuol Po Chrey.

16.3.3.4. Aiding and Abetting

1047. The Chamber is satisfied that KHIEU Samphan provided practical assistance, encouragement and moral support to the perpetrators of the crimes committed at Tuol Po Chrey. In public statements and instructional meetings before and after the commission of crimes at Tuol Po Chrey, KHIEU Samphan maintained that only the seven 'super traitors' would be executed and that other Khmer Republic officials would be spared; praised the Khmer Rouge and the army, including for their success in vanquishing the Khmer Republic regime; justified and endorsed Khmer Rouge policies, including continued vigilance against and elimination of all elements of the former Khmer Republic regime; and excused or denied crimes, including executions of Khmer Republic officials. |3078| His diplomatic efforts also won support from some in the international community and from other factions in Cambodia, including NORODOM Sihanouk, whose praise of the Khmer Rouge reassured local and international observers. |3079|

1048. This practical assistance, encouragement and moral support had a substantial effect on the commission of crimes at Tuol Po Chrey. Based on his reputation, official positions, and the un-reserved support of the Khmer Rouge, |3080| the Chamber is satisfied that the perpetrators, who acted in furtherance of the CPK policy to target Khmer Republic officials for execution, arrest or disappearance, were encouraged by his public statements. His assurances that Khmer Republic officials, other than the seven 'super traitors', would be spared also lulled Khmer Republic officials into a false sense of security following liberation. |3081| Khmer Republic officials were thereafter lured away from the general population under the pretext of participating in re-education and training sessions were then executed en masse, |3082| as were the Khmer Republic officials assembled and then executed at Tuol Po Chrey.

1049. In addition, the Chamber is satisfied that the perpetrators anticipated that KHIEU Samphan would continue to provide them with assistance and encouragement after the executions perpetrated at Tuol Po Chrey. Indeed, these expectations were consistent with the fact that the policy targeting Khmer Republic officials resulting from decisions taken at the highest levels of the CPK were already in force. It was also consistent with the fact that KHIEU Samphan continuously provided support to the Khmer Rouge throughout the democratic revolution, particularly during the final offensive on Phnom Penh and in the initial days after liberation. |3083| Therefore the perpetrators must have been convinced that the executions were in accordance with the prevailing CPK policy and were certain that the CPK leaders would continue to support and assist them after the fact and in particular that KHIEU Samphan would continue to make efforts to justify the Party's policies and actions.

1050. In fact KHIEU Samphan did as expected. He knew that the crimes committed at Tuol Po Chrey would likely be committed |3084| and that his conduct assisted or facilitated their commission. The Chamber is also satisfied that KHIEU Samphan was aware of at least the essential elements of the crimes. With this knowledge, KHIEU Samphan provided assistance, encouragement and moral support to the perpetrators of crimes prior to and after the executions were committed at Tuol Po Chrey. The Chamber is satisfied that his conduct assisted and had a substantial effect on the commission of the crimes.

1051. The Chamber therefore finds that KHIEU Samphan is criminally responsible for aiding and abetting the crimes against humanity of murder, extermination and political persecution committed at Tuol Po Chrey.

16.3.3.5. Superior Responsibility

1052. The crimes at Tuol Po Chrey were committed by cadres under the direct authority of the Northwest Zone Committee and Secretary ROS Nhim between approximately 24 and 26 April 1975. During the final offensive to liberate the country, the Chamber has found that Zone commanders and military leaders sought and received instructions from senior leaders based at B-5 and following their return to Phnom Penh, at latest, by 25 April 1975, at the Phnom Penh Railway Station. |3085| The perpetrators of the crimes committed during phase one were also under the direct control of Zone and Autonomous Sector military leaders who sought and received instructions from senior leaders based at B-5. |3086| The Chamber therefore finds that the perpetrators of crimes at Tuol Po Chrey were similarly situated to the perpetrators of crimes during movement of population (phase one). In turn, the Chamber adopts its reasoning provided in the sections relevant to the charge that KHIEU Samphan was responsible as a superior for the crimes committed in the course of phase one (Section 16.3.1.5). It therefore finds that KHIEU Samphan did not exercise effective control over the perpetrators of the crimes at Tuol Po Chrey. The Chamber dismisses the charge that KHIEU Samphan is responsible as a superior for the crimes committed at Tuol Po Chrey.

16.4. Conclusion

1053. The Chamber has found that, through a JCE, KHIEU Samphan committed the crimes against humanity of murder, political persecution and other inhumane acts (forced transfer and attacks against human dignity) during movement of population (phase one); political persecution and other inhumane acts (forced transfer and attacks against human dignity) during movement of population (phase two); and murder and extermination at Tuol Po Chrey. The Chamber has also found that the Accused planned, instigated, aided and abetted the aforementioned crimes during population movement (phases one and two) and at Tuol Po Chrey. Considering that the Accused's participation in the JCE encompasses all the conduct forming the basis of the Chamber's findings on these other forms of responsibility, the Chamber will enter a conviction for commission of these crimes only through a JCE.

1054. The Chamber also finds that KHIEU Samphan planned, instigated, aided and abetted the crimes of extermination (during movement of population (phases one and two)), political persecution (at Tuol Chrey), and other inhumane acts (comprising enforced disappearances) (during movement of population (phase two)).

17. CUMULATIVE CONVICTIONS

1055. Where the Accused's conduct fulfils the elements of different offences, the Chamber must evaluate the impact of multiple convictions. Multiple convictions serve to "describe the full culpability of a particular accused or provide a complete picture of his criminal conduct." |3087| Where a Chamber has made findings of guilt on more than one statutory crime arising out of the same acts or omissions on the part of the accused, a conviction for each crime is permissible only if it has a materially distinct element that the other crimes in question do not. |3088| If two crimes charged in respect of the same conduct do not contain at least one mutually distinct element, a Chamber may convict the accused only of the crime with the more specific element or elements. |3089| In applying the cumulative convictions test, a Chamber must compare in the abstract all the general requirements of the statutory crimes in question, as well as the elements of the charged underlying offences, to determine whether each crime as a matter of law, requires proof of an element that the others do not. |3090|

1056. The Chamber has found NUON Chea and KHIEU Samphan individually criminally responsible for murder, extermination, persecution on political grounds, and other inhumane acts (comprising forced transfer, enforced disappearances and attacks against human dignity).

1057. In relation to movement of population (phase one), the Chamber's findings on the crimes of murder and extermination are based on the same killings. |3091| Similarly, in relation to executions at Tuol Po Chrey, the Chamber's findings on the crimes of murder and extermination are based on the same killings. |3092| Both murder and extermination require death by intentional act or omission. While murder has no other elements, extermination additionally requires deaths on a massive scale. |3093| Accordingly, extermination, as the more specific offence, subsumes murder. |3094| The Chamber will therefore enter convictions only for extermination in relation to movement of population (phase one) and executions at Tuol Po Chrey.

1058. Further, the acts underlying the Chamber's findings on political persecution are largely based on the same conduct underlying the Chamber's findings on other crimes. In relation to movement of population (phase one), the underlying acts include extermination, forced transfer and attacks against human dignity. These underlying acts also form the basis of the Chamber's findings on the crimes of extermination and other inhumane acts (comprising forced transfer and attacks against human dignity). |3095| In relation to movement of population (phase two), the acts underlying the Chamber's findings on political persecution include forced transfer and enforced disappearance. These underlying acts also form the basis of the Chamber's findings on the crime of other inhumane acts (comprising forced transfer and enforced disappearance). |3096| Finally, in relation to Tuol Po Chrey, the acts underlying the Chamber's findings on political persecution include intentional killings on a massive scale. These underlying acts also form the basis of the Chamber's findings on the crime of extermination. |3097|

1059. The crime of persecution has at least one materially distinct element from the crimes of extermination and other inhumane acts, requiring proof of specific discriminatory intent. |3098| In turn, extermination requires killings on a massive scale, |3099| and the crime of other inhumane acts requires an act or omission causing serious bodily or mental harm or constituting a serious attack on human dignity. |3100| The crime of persecution does not require these elements.

1060. The Chamber therefore convicts the Accused of the crimes of persecution on political grounds, extermination, and other inhumane acts (comprising forced transfer, enforced disappearances and attacks against human dignity), as each offence has a materially distinct element not contained in the others.

18. SENTENCING

18.1. Submissions

1061. The Co-Prosecutors submit that in view of the singular gravity of the crimes, the significant aggravating factors and the absence of relevant mitigating factors, the Trial Chamber should sentence NUON Chea and KHIEU Samphan to life in prison. |3101| The Co-Prosecutors argue that the background and context of the present case are identical to Case 001, in which the Accused was sentenced to life imprisonment on appeal. Comparing the two cases, the Co-Prosecutors note that although the crimes within the scope of Case 002/01 (which are limited to crimes against humanity) differ from those in Case 001, the Co-Accused in Case 002/01 were senior leaders of DK and at the core of the Party Centre, whereas the Accused person in Case 001, KAING Guek Eav, held a rank subordinate to both Co-Accused and reported to NUON Chea. Further, they argue that the scale of overall victimisation in Case 002/01 is far greater than the number of victims in Case 001. The Co-Prosecutors submit that these factors, as well as the comparative sentencing practice of the international criminal tribunals, support the imposition of a term of life imprisonment for each Accused. |3102|

1062. While NUON Chea denied any criminal responsibility, |3103| during the trial proceedings he expressed his sympathies to the victims of crimes committed during the DK period and said that he regretted that "the leadership was not of the perfect nature". |3104| He purported to accept moral responsibility for "what happened" during the DK era, |3105| but also said he had "no power" within the executive branch. |3106|

During his final statement, while blaming "traitors" for the "tragedy in the DK period" and asserting his innocence, NUON Chea apologized to the public, the victims, their families and all Cambodian people. He reiterated his acceptance of moral responsibility, which he considered was due to the CPK's lack of control. |3107|

1063. During the trial proceedings and in his final statement, KHIEU Samphan denied knowledge of and responsibility for the events which gave rise to the charges against him. |3108| He sought an acquittal and his Defence did not expressly address possible mitigating circumstances. He asserted that his actions were taken in furtherance of protecting the weak and building a strong, independent and peaceful Cambodia. |3109|

1064. The Trial Chamber has previously ruled by a majority, and affirms that the consolidated group of Civil Parties may not intervene on matters pertaining to sentencing. |3110|

18.2. Applicable law

18.2.1. ECCC provisions and sentencing framework

1065. Rule 98(5) of the Internal Rules provides that "[i]f the accused is found guilty, the Chamber shall sentence him or her in accordance with the Agreement, the ECCC Law and these [Internal Rules]." Article 10 of the ECCC Agreement provides that "[t]he maximum penalty for conviction for crimes falling within the jurisdiction of the Extraordinary Chambers shall be life imprisonment." Article 39 (new) of the ECCC Law provides additional guidance, as follows:

    Those who committed any crime as provided in Articles 3 new, 4, 5, 6, 7 and 8 [of the ECCC Law] shall be sentenced to a prison term from five years to life imprisonment.

    In addition to imprisonment, the [Trial Chamber] may order the confiscation of personal property, money, and real property acquired unlawfully or by criminal conduct.

    The confiscated property shall be returned to the State. |3111|

1066. The ECCC Agreement, the ECCC Law and the Internal Rules are largely silent as to principles and factors to be considered at sentencing. Therefore, the Chamber will exercise its own discretion in determining the sentence justified in the particular circumstances and in accordance with Article 33 of the ECCC Law will seek guidance from both relevant international and Cambodian sentencing principles and factors.

18.2.2. Relevant sentencing principles and factors

1067. In reducing crimes of considerable enormity and scope to an individualised sentence, the Chamber seeks to reassure the surviving victims, their families, the witnesses and the general public that the law is effectively implemented and enforced, and applies to all regardless of status or rank. |3112| Sentencing further serves the purposes of deterrence, both to the accused and more generally, |3113| and punishment, though not revenge. |3114| The sentence must be proportionate and individualised in order to reflect the culpability of the accused based on an objective, reasoned and measured analysis of the accused's conduct and its consequential harm. |3115| These principles are also recognized and applicable in Cambodian law. |3116|

1068. In determining the appropriate sentence, the gravity of the crime committed is the "litmus test" |3117| and requires "consideration of the particular circumstances of the case, as well as the form and degree of the participation of the [a]ccused in the crime." |3118| The Supreme Court Chamber has identified the following factors as being relevant to an assessment of the gravity of a crime: the number and the vulnerability of victims; the impact of the crimes upon them and their relatives; the discriminatory intent of the convicted person when it is not already an element of the crime; the scale and the brutality of the offences; and the role played by the convicted person. |3119|

1069. Moreover, the Chamber will consider all relevant aggravating and mitigating factors in determining a sentence. |3120| Aggravating factors must be proved by the Co-Prosecutors to the same standard as that required for a conviction and only circumstances directly related to the commission of the offence charged, and for which the accused has been convicted, will be considered to be aggravating. An element of the underlying offence cannot be taken into account as an aggravating factor. |3121| Further, the same fact cannot be used both to demonstrate the gravity of the crime and as an aggravating factor. |3122| Finally, the Chamber adopts the useful guidelines regarding aggravating factors set out in Rule 145(2)(b) of the ICC's Rules of Procedure and Evidence, where relevant to the instant case:

    (i) [a]ny relevant prior criminal convictions for crimes under the jurisdiction of the [ICC] or of a similar nature; (ii) abuse of power or official capacity; (iii) commission of the crime where the victim is particularly defenceless; (iv) commission of the crime with particular cruelty or where there were multiple victims; (v) commission of the crime for any motive involving discrimination on any of the grounds referred to in article 21, paragraph 3 [i.e., gender, age, race, colour, language, religion or belief, political or other opinion, national, ethnic or social origin, wealth, birth or other status]; (vi) other circumstances which, although not enumerated above, by virtue of their nature are similar to those mentioned. |3123|

1070. The jurisprudence of other international tribunals has established that the burden of proof on an accused with regard to mitigating factors is a lower standard than on prosecution for aggravating factors. |3124| Mitigating factors may be taken into account regardless of whether they are directly related to the alleged offence or not. |3125| Rule 145(2)(a) of the ICC's Rules of Procedure and Evidence identifies the following mitigating factors, which the Chamber again adopts:

    (i) The circumstances falling short of constituting grounds for exclusion of criminal responsibility, such as substantially diminished mental capacity or duress;

    (ii) The convicted person's conduct after the act, including any efforts by the person to compensate the victims and any cooperation with the Court. |3126|

1071. The Chamber notes that, in accordance with established international jurisprudence, the decision of the Accused to remain silent at certain times during the trial was not considered an aggravating factor in determining their sentences. |3127|

18.2.3. The effect of multiple convictions upon sentence

1072. There are no provisions in the ECCC Agreement, the ECCC Law or the Internal Rules indicating whether the Chamber may impose a single sentence following conviction for multiple offences, where each conviction is based on distinct criminal conduct. |3128| The Chamber has previously held however, that it may impose a single sentence that reflects the totality of the criminal conduct where an accused is convicted of multiple offences. |3129|

18.3. Findings

18.3.1. Gravity of the crimes

18.3.1.1. General considerations applicable to both Accused

1073. The Co-Prosecutors contend that in evaluating the gravity of the crimes, the Chamber should consider the large number of victims, the brutal and inhumane circumstances of the offences, the lasting impact of these crimes on the Cambodian people, and the key role of both Accused in the preparation and commission of the crimes. |3130| The Chamber agrees that these factors, which also accord with the Supreme Court Chamber's guidance, |3131| are relevant to determining the gravity of the crimes.

1074. The Trial Chamber has found NUON Chea and KHIEU Samphan to be responsible for the crimes against humanity of extermination (encompassing murder), political persecution and other inhumane acts (comprising forced transfer, attacks against human dignity and enforced disappearances).

1075. The Trial Chamber has found that a minimum of 250 LON Nol officials were murdered at Tuol Po Chrey |3132| and as a minimum, between 2,330,000 to 2,430,000 people were victims of crimes committed during the first two phases of forced population movement. |3133| The number of victims is among the highest of any decided case concerning international crimes. The crimes were committed across the whole of Cambodia during an almost two-year period. The Trial Chamber considers that the gravity of the crimes is illustrated by the vast number of victims, as well as the broad geographic and temporal scope of victimisation.

1076. The Trial Chamber has found that the conditions of the forced transfer of the inhabitants of Phnom Penh and movement of population (phase two) were severe, unrelenting and inhumane. They included: extreme heat; a lack of sufficient food, clean water, medicine or adequate accommodation; the separation of families; cruel mistreatment; terror; and threats and incidents of violence. |3134| The crimes were perpetrated with cold disregard for human life and were often brutal, adding to their gravity.

1077. The gravity of the crimes is further demonstrated by their serious and lasting impact upon the victims and their relatives and Cambodia in general. For the victims who died as a result of the crimes, the consequences were absolute. Many of those who survived suffered ongoing physical trauma, as well as mental and psychological disorders. |3135| The grave impact of these crimes on the victims and their relatives is both devastating and enduring.

1078. The same fact cannot be used both to demonstrate the gravity of the crimes and as an aggravating factor. |3136| The Trial Chamber has the discretion to decide whether it is more appropriate to consider certain factors as contributing to the gravity of the crime or as aggravating factors. |3137| In the circumstances, the Trial Chamber does not take into account the vulnerability of the victims when assessing gravity, considering it more appropriately addressed as an aggravating factor.

18.3.1.2. Role of NUON Chea

1079. The Trial Chamber has found that NUON Chea was a key actor responsible for the formulation of Party policies. |3138| As Deputy Secretary of the Party, he exercised ultimate decision-making power with POL Pot. |3139| NUON Chea knew that the crimes would be committed and was involved in the common purpose from the time of its inception throughout the period relevant to Case 002/01: from his participation in the initial development of the above policies to his active involvement in their continuing implementation. |3140| The Chamber has found that the significance of his role is heightened in view of the limited number of people who constituted the 'upper echelon'. |3141| The Chamber accordingly finds NUON Chea's involvement in the crimes to be pivotal, extensive and significant.

18.3.1.3. Role of KHIEU Samphan

1080. The Trial Chamber has found that KHIEU Samphan was a key actor responsible for the formulation of the Party policies that are the subject of Case 002/01. Throughout the period relevant to Case 002/01, he also disseminated, endorsed and defended the common purpose and policies, providing encouragement, support and his trusted and respected character which allowed the crimes to be more readily be committed. |3142| KHIEU Samphan knew that the crimes would be committed and was involved in the common purpose from the time of its inception throughout the period relevant to Case 002/01. Meanwhile, he implemented key economic aspects of the common purpose which were intended to ensure the evolution of Cambodia into a modern agricultural and thereafter industrial state, while disregarding the human cost of their implementation. |3143| The Chamber accordingly finds KHIEU Samphan's involvement in the crimes to be extensive and substantial.

18.3.2. Aggravating factors

18.3.2.1. General considerations applicable to both Accused

1081. The Co-Prosecutors submit that the following factors should aggravate the sentence of the Accused: the "absolute" abuse of power and official capacity by each Accused; the particular defencelessness and large number of the victims; and the cruelty and zeal with which the crimes were committed. |3144|

1082. Many vulnerable individuals - including children, the elderly, sick and injured people evacuated from hospitals, pregnant women and those who had recently given birth - were subject to crimes during the two phases of population movement. |3145| Further, those subjected to forced transfer were rendered helpless, in significant part through the Khmer Rouge's own actions: victims were weak, tired, injured and ill as a result of inadequate food, accommodation, assistance or hygiene facilities. |3146| The Trial Chamber considers the fact that the crimes were committed against vulnerable and defenceless individuals is an aggravating circumstance.

1083. As the number of victims has been taken into account in assessing the gravity of the crimes, |3147| the Trial Chamber declines to consider this as an aggravating factor as the Co-Prosecutors have proposed.

18.3.2.2. Considerations applicable to NUON Chea

1084. The Trial Chamber has found NUON Chea responsible for the crimes against humanity of extermination (encompassing murder), political persecution and other inhumane acts (comprising forced transfer, attacks against human dignity and enforced disappearances). NUON Chea's contribution to the crimes, including through his participation in the JCE, was undertaken in his official capacities, including as Deputy Secretary of the CPK throughout the DK period and a full rights member of both the CPK Central and Standing Committees. This constitutes an abuse of his position of authority and influence |3148| and thus aggravates his culpability.

1085. While NUON Chea was dedicated in carrying out his role, the Co-Prosecutors have failed to establish that he displayed any particular zeal or enthusiasm with regard to his criminal activity. Accordingly, the Trial Chamber does not consider that zeal has been proven as an aggravating factor.

1086. The Trial Chamber finds that NUON Chea is also a well-educated individual who well understood the import and consequences of his actions. |3149| The Trial Chamber finds that this constitutes an aggravating factor.

18.3.2.3. Considerations applicable to KHIEU Samphan

1087. The Trial Chamber has found KHIEU Samphan responsible for the crimes against humanity of extermination (encompassing murder), political persecution and other inhumane acts (comprising forced transfer, attacks against human dignity and enforced disappearances). KHIEU Samphan's contribution to the crimes, including through his participation in the JCE, was undertaken in his official capacities, including as a member of the Central Committee, a member of Office 870, President of the State Presidium, and highest official in GRUNK. This constitutes an abuse of his position of authority and influence |3150| and thus aggravates his culpability.

1088. Willingness in the sense of voluntariness is a necessary component of the crimes and therefore not an aggravating factor. |3151| While the evidence demonstrates that KHIEU Samphan consciously and voluntarily carried out his role, the Co-Prosecutors have failed to establish that he displayed any particular zeal or enthusiasm with regard to his criminal activity. Accordingly, the Trial Chamber does not consider that zeal has been established as an aggravating factor.

1089. The Trial Chamber finds that KHIEU Samphan is a well-educated individual. |3152| He studied both law and economics successfully at the tertiary level and was therefore well equipped to know the import and consequences of his actions. The Trial Chamber finds that these facts constitute an aggravating factor.

18.3.3. Mitigating factors

18.3.3.1. General considerations applicable to both Accused

1090. The Co-Prosecutors submit that "no relevant mitigating factors" exist to reduce the sentence of either Accused in this case, since there is no evidence of diminished mental capacity or duress, they have not shown remorse for their crimes or substantially cooperated with the ECCC. |3153| While the Accused have not made any direct submissions in relation to mitigating circumstances, the Trial Chamber has the discretion to consider any factors that it considers to be of a mitigating nature. |3154|

1091. The Trial Chamber agrees with the Co-Prosecutors' submission that there is no evidence of diminished mental capacity or duress.

18.3.3.2. Considerations applicable to NUON Chea

1092. During the trial proceedings, NUON Chea expressed his regret that the DK leadership was not of the "perfect nature", |3155| but asserted that he had no power whatsoever with respect to the executive branch of government. |3156| NUON Chea stated that the DK had a "good purpose" for the nation and "every one of us" "sacrificed ourselves for our nation". |3157| He characterised those who lost their lives during the period as "national compatriots who sacrificed their lives". |3158| In his final statement, NUON Chea stated that, "Although the tragedy in the DK period was the result of the acts committed by those traitors in the name of Deputy Secretary of the Party that had the responsibility to disseminate and propagandize education about the CPK policy, I would like to sincerely apologize to the public, to the victims, their families, and all Cambodian people". |3159| NUON Chea further stated that he accepted moral responsibility for the CPK's lack of control. |3160|

1093. In order to be a factor in mitigation, expressions of remorse must be real and sincere. |3161| An accused can express sincere regrets without admitting his participation in the crimes, remorse requires acceptance of some moral responsibility for personal wrongdoing. |3162| The Chamber finds that the mitigating impact of NUON Chea's apology is undermined by his failure to accept responsibility for his own wrongdoing. Instead he apologized for the acts of "traitors" and limited his own responsibility to the CPK's lack of control over these supposed and unspecified traitors.

1094. The Trial Chamber has considered the quantity and quality of information provided by NUON Chea to the ECCC. NUON Chea made several statements relevant to his roles and functions during the DK period. Initially he cooperated with the Chamber, answering questions concerning the historical background of the CPK, during which confirmed his long and close association with the CPK, his role as Deputy Secretary, his membership in the Central and Standing Committees and his appointment as Chairman of the People's Representative Assembly. |3163| However, his cooperation was short lived, and given its modest nature, the Chamber accords it limited weight as a mitigating factor.

1095. The Chamber acknowledges that advanced age can be considered as a mitigating factor |3164| and accords it some minimal weight here. Noting that ill-health will only be considered mitigating in exceptional circumstances, |3165| and in view of the Chamber's assessment of the health of the Accused, |3166| the Chamber declines to consider ill-health as a mitigating factor in the circumstances of this case.

18.3.3.3. Considerations applicable to KHIEU Samphan

1096. During the trial proceedings and in his final statement, KHIEU Samphan denied knowledge of and responsibility for events which "could have happened" following the Khmer Rouge victory and stated that, in any case, he did not have the power to intervene. |3167| KHIEU Samphan apologized for not being aware of the suffering during the DK period. |3168| The Chamber finds that KHIEU Samphan has accepted no responsibility for the crimes committed, and nor has he expressed remorse for them. Accordingly, remorse cannot be considered as a mitigating factor.

1097. The Trial Chamber's review of KHIEU Samphan's participation in the proceedings reveals limited cooperation with the ECCC. During the trial proceedings, KHIEU Samphan answered questions regarding his identity, personal background and certain documents on the Case File. He also answered a number of questions put to him by Civil Parties, |3169| which may have some impact in facilitating reconciliation. In view of the very limited nature of this cooperation, the Chamber accords it little weight as a mitigating factor.

1098. The Chamber acknowledges that advanced age can be considered as a mitigating factor |3170| and accords it some minimal weight here. Noting that ill-health will only be considered mitigating in exceptional circumstances, |3171| and in view of the Chamber's assessment of the health of the Accused, |3172| the Chamber declines to consider ill-health as a mitigating factor in the circumstances of this case.

18.3.4. Character witnesses

1099. Five witnesses testified to the character of KHIEU Samphan. |3173| The witnesses asserted that KHIEU Samphan was and continues to be popular in Cambodia, |3174| and has a reputation for being respectful, |3175| honest, |3176| and for desiring social justice and welfare for the Cambodian people. |3177| Two witnesses testified that KHIEU Samphan treats people equally and does not discriminate. |3178| Several witnesses stated that KHIEU Samphan is not a violent or cruel man. |3179|

1100. Philippe JULLIAN-GAUFRES, first met KHIEU Samphan at university in France in the 1950s, then several times between 1961 and 1966 in Cambodia, |3180| and later in the 1990s and 2000s in Cambodia, China and France. |3181| He had conversations with the Accused, |3182| during which he was informed that KHIEU Samphan's main goal was to improve the livelihood of the Cambodian population through economic revolution, |3183| and that he wanted Cambodia to develop slowly and without brutality. |3184| SOK Roeu, KHIEU Samphan's bodyguard from 1989 to 1995, |3185| testified that KHIEU Samphan guided his subordinates rather than ordering them, never looked down on poor people or peasants and that he never saw anyone become upset with KHIEU Samphan. |3186|

1101. Various witnesses testified as to KHIEU Samphan's character and actions before and after the DK era. Philippe JULLIAN-GAUFRES stated that KHIEU Samphan devoted time to assisting Khmer students arriving in Paris in the 1950s, |3187| he tried to protect Cambodian peasants from abusive traders in the 1960s, |3188| and he stood up to military authorities illegally forcing peasants in his district to do unwarranted work. |3189| KHIEU Samphan's son-in-law, TUN Soeun, who lived with the Accused from 1988 or 1989 until 1994, |3190| testified that KHIEU Samphan has built a good rapport with his neighbours and is liked by all. |3191|

1102. KHIEU Samphan's wife, SO Socheat, testified as to her husband's character and conduct before, during and after the DK period. She described KHIEU Samphan as an intellectual and educated person, |3192| who is very gentle, kind and patient. |3193| She stated that his character is not that of a cruel person or a murderer, |3194| and he is not the kind of person to perform degrading acts or to be avaricious for rank or promotion, |3195| but is a "man of virtue, of high morality", who has never upset her and is very faithful. |3196|

1103. The Chamber accepts that KHIEU Samphan may have treated his wife well and been kind to people in specific instances. However, these factors cannot play any significant part in mitigating crimes of the severity of those for which KHIEU Samphan has been found guilty, and will not be given undue weight. The Trial Chamber therefore gives limited weight to KHIEU Samphan's purported good character as a mitigating factor in sentencing.

1104. No character witnesses were heard by the Trial Chamber in respect of NUON Chea. |3197|

18.3.5. Sentence

18.3.5.1. Imprisonment

1105. In deciding on appropriate sentences for NUON Chea and KHIEU Samphan, the Chamber has taken into account the entirety of the circumstances of this case, including all relevant sentencing principles and factors discussed above. The Chamber has also noted that the Supreme Court Chamber in the KAING Guek Eav Appeal Judgement, held by super-majority that the Trial Chamber in that case had "imposed a [finite] sentence that does not reflect the gravity of the crimes committed," |3198| and imposed a sentence of life imprisonment. While the Chamber has found that NUON Chea's criminal responsibility exceeds that of KHIEU Samphan, a sentence of life imprisonment is nonetheless appropriate for each Accused. The Chamber notes however that there are factors which reveal far greater culpability on the part of the two Accused than KAING Guek Eav's culpability in Case 001, such as the vastly greater number of victims, and the number and gravity of the crimes for which each has been convicted. The precedent settled by the Supreme Court Chamber does not allow the Chamber either to reflect these distinctions between the Accused and Kaing Guek Eav, or to distinguish in sentence between the two Accused. For all these reasons, the Chamber finds that a sentence of life imprisonment most appropriately sanctions the criminal conduct of each of the Accused.

1106. On the basis of the foregoing, the Trial Chamber decides to impose a sentence of LIFE IMPRISONMENT on NUON Chea.

1107. On the basis of the foregoing, the Trial Chamber decides to impose a sentence of LIFE IMPRISONMENT on KHIEU Samphan.

18.3.5.2. Confiscation of personal property, money and real property

1108. The Chamber has identified no personal property, money or real property acquired unlawfully or by criminal conduct by either NUON Chea or KHIEU Samphan. |3199| Accordingly, there are no identified assets which could form the subject of confiscation pursuant to Article 39 (new) of the ECCC Law.

19. CIVIL PARTY REPARATIONS

19.1. Introduction

1109. Internal Rule 23(1) provides "The purpose of Civil Party action before the ECCC is to:

    a) Participate in criminal proceedings against those responsible for crimes within the jurisdiction of the ECCC by supporting the prosecution; and

    b) Seek collective and moral reparations, [...]".

Taking into account difficulties experienced in Case 001 and the need to improve efficiency in trial management, the ECCC Internal Rules were amended prior to the trial phase of Case 002. |3200| The amendments streamlined and consolidated Civil Party participation at trial. They were designed to meet the requirements of trials of mass crimes and to ensure that ECCC proceedings responded more fully to the needs of victims.

1110. First, significant amendments were made to the manner in which victims participate at trial. Civil Parties now participate as individuals only at the pre-trial stage, while at the trial stage and beyond they comprise a single, consolidated group, whose interests are represented by one Cambodian and one international Civil Party Lead Co-Lawyer supported by the Civil Party Lawyers. |3201| In Case 001, the Trial Chamber had to decide on both the substance and admissibility of Civil Party claims. Following the rules change admissibility is decided finally at the pre-trial stage. |3202| The Chamber now decides only on the substance of the Civil Parties' consolidated claim for reparations. |3203|

1111. The Co-Investigating Judges determined that 2,123 Civil Party applications were admissible in Case 002. |3204| Following resolution of the final expedited appeals by the Pre-Trial Chamber on 24 June and 1 July 2011, a total of 3,869 Civil Parties were admitted in the present case and comprised the consolidated group of Civil Parties at trial. |3205|

1112. The Internal Rules were further amended to expand the range of reparations before the ECCC. An award of Civil Party reparations may still be borne by the convicted persons, |3206| but must meet stringent pleading and admissibility requirements which are frequently difficult for Civil Parties to satisfy. |3207| As evidenced by Case 001, where convicted persons are indigent, reparations awarded under the classic Civil Party model are unlikely to yield significant tangible results for Civil Parties. |3208|

1113. Amendments to the Internal Rules sought to address these limitations by creating an additional reparations avenue to the traditional Civil Party claim. |3209| This alternative permits the Civil Party Lead Co-Lawyers to request the Trial Chamber to recognize that specific reparations measures, designed or identified in coordination with the Victims Support Section, are appropriate for implementation using external resources. Over the course of the trial in Case 002, this enabled the Victims Support Section and Lead Co-Lawyers to seek funding for reparations from donor contributions and to develop these projects in collaboration with governmental and non-governmental organizations external to the ECCC.

19.2. Legal Framework

1114. Internal Rule 23quinquies(1) provides that in the event an Accused is convicted, the Chamber may award only collective and moral reparations to Civil Parties. Collective and moral reparations for the purpose of these Rules are measures that:

    a) acknowledge the harm suffered by Civil Parties as a result of the commission of the crimes for which an Accused is convicted and

    b) provide benefits to the Civil Parties which address this harm. |3210|

1115. Internal Rule 23quinquies(1) expressly states that these benefits shall not take the form of monetary payments to Civil Parties. The Supreme Court Chamber has interpreted the term "moral" to mean repairing moral damages rather than material ones, and "collective" as confirming the unavailability of individual financial awards. |3211|

1116. The redress available before the ECCC differs from that available under a number of international treaties and other instruments, or before certain regional human rights courts, which are instead empowered to adjudicate questions of State responsibility and to order States to make reparation to their citizens where found responsible for gross violations of international human rights law. The Chamber has no jurisdiction to order the implementation or the payment of reparation measures against Cambodian or other national authorities or international bodies. Nor can it properly impose obligations on persons or entities that were not parties to the proceedings before it. |3212| However, the adoption of Internal Rule 23quinquies(3)(b) has enabled the Chamber to recognize that specific projects give appropriate effect to an award sought on the behalf of the consolidated group of Civil Parties to contribute to their rehabilitation, reintegration and restoration of dignity where national or international authorities, non-governmental organisations or other potential donors, provide financial support and other forms of assistance to show solidarity with the victims of Khmer Rouge era crimes.

1117. Internal Rule 23quinquies(2) sets out the pleading requirements of the single claim, and requires that

    [r]eparations shall be requested in a single submission, which may seek a limited number of awards. This submission shall provide:

    a) a description of the awards sought;

    b) reasoned argument as to how they address the harm suffered and specify, where applicable, the Civil Party group within the consolidated group to which they pertain; and

    c) in relation to each award, the single, specific mode of implementation described in Rule 23quinquies(3)(a)-(b) sought.

1118. The obligation on the Lead Co-Lawyers to indicate, in relation to each award, which specific mode of implementation is sought reflects the differing requirements of the alternatives embodied in Internal Rule 23quinquies(3)(a) and (b). |3213| It also reflects that the two avenues of reparations before the ECCC are not only distinct but also mutually exclusive and that the Lead Co-Lawyers shall necessarily select one or the other.

1119. In creating alternative avenues of reparation before the ECCC, the Internal Rules provides that "[i]n deciding the modes of implementation of the awards, the Chamber may, in respect of each award, either:

    a) order that the costs of the award shall be borne by the convicted person; or

    b) recognise that a specific project appropriately gives effect to the award sought by the Lead Co-Lawyers and may be implemented. Such project shall have been designed or identified in cooperation with the Victims Support Section and have secured sufficient external funding." |3214|

1120. The Trial Chamber has previously noted that the formulation of reparations claims made on behalf of the consolidated group of Civil Parties by the Lead Co- Lawyers should take account of Internal Rule 23quinquies(1)(a). When issuing its Severance decision however, the Trial Chamber expressly stated that the severance of charges will place no limitation on the ability of individual members of the consolidated group to benefit from any reparations ultimately endorsed or awarded by the Trial Chamber under Internal Rule 23quinquies(3)(b). |3215| The Chamber has also provided guidance to the Lead Co-Lawyers to assist their efforts in formulating requests that may result in meaningful measures in reparation and encompass the entire consolidated group of Civil Parties. In particular, it has indicated that the severance of proceedings has no impact in relation to the new and separate reparations avenue created by Internal Rule 23quinquies(3)(b), pursuant to which the initiatives proposed as possible measures do not result in enforceable claims against an Accused, and may be developed in parallel with the trial. |3216|

1121. Given the anticipated duration of the ECCC, over the course of the trial the Trial Chamber has exercised its powers under Internal Rule 80bis(4) to request the Lead Co-Lawyers to provide early indications of the types of reparations measures contemplated pursuant to Internal Rule 23quinquies(3)(b), and updates on the status of the financing of these projects. This was considered necessary to ensure that all measures sought on such grounds are able to be realized, with the support of donor assistance and external collaborators, and within a meaningful time-frame. |3217| In view of limited donor funds and finite human resources in both the Lead Co-Lawyers' and Victims Support Sections, the Chamber also urged the Lead Co-Lawyers to "prioritize for development a small number of reparations awards out of the totality [initially] contemplated pursuant to [sub-Rule 23 quinquies (3)(b)], and commence preparation for their implementation as soon as possible." |3218|

1122. In response to the Lead Co-Lawyers' initial specifications on reparation projects, the Trial Chamber provided indications as to whether it considered these projects appropriately gave effect to the award sought by the Lead Co-Lawyers and might be implemented. |3219| It observed that in principle, the measures proposed by the Lead Co-Lawyers appropriately acknowledged the harm suffered by Civil Parties as a result of the commission of the crimes at issue in Case 002/01 and provided benefits to the Civil Parties that address this harm, and that it would endorse them provided that additional information in relation to some of these projects was furnished by 23 August 2013. However, it emphasized that the Chamber may only endorse reparations measures under Internal Rule 23quinquies(3)(b) where sufficient funding (i.e. full rather than partial) has been secured and where proof of the consent and co-operation of any involved third party has been demonstrated. |3220|

19.3. Civil Party Requests

1123. Following the Chamber's requests for further particularization of the awards they intend to seek, over the course of the trial the Civil Party Lead Co-Lawyers progressively updated and elaborated a number of specific projects proposed as reparation in Case 002/01. |3221| In their final request for reparations, the Lead Co-Lawyers clearly recognize that the two possible modes of implementation of the awards foreseen by Internal Rule 23quinquies(3)(a) and (b) are not only distinct but also mutually exclusive, and therefore that an award cannot be sought under both procedural avenues simultaneously. |3222| However, in contradiction to this, the Lead Co-Lawyers appear to pursue both modes. First, they request the Chamber to couple the principle that the cost of reparations be borne by the Accused with an order that costs be externally funded by third parties. |3223| In the alternative, pursuant to Internal Rule 23quinquies(3)(b) they request that the Chamber both recognize that the proposed projects appropriately give effect to the award sought and acknowledge that these may be funded by third-parties. |3224|

1124. The Chamber notes that the Accused in Case 002 have been found to be indigent |3225| and that at the trial stage the Lead Co-Lawyers have neither challenged this determination, nor provided any information which would cast doubt upon the Accused's inability to effectively support the cost of reparations. The Chamber also notes that all the reparation projects presented in the final claim imply either decisions from governmental authorities and third parties' participation or external funding, which can be achieved only through Internal Rule 23quinquies(3)(b). Therefore, the Trial Chamber finds that the Lead Co-Lawyers' main requests based simultaneously on both reparation avenues foreseen in Internal Rule 23quinquies(3)(a) and (b), are not legally permissible and are inconsistent with their own acknowledgement that these avenues are not only distinct but also mutually exclusive. In addition it finds that, in any case, the request to order that the cost of reparations be borne by the Accused is inconsistent with both the failure to challenge at trial the previous determination of the Accused's indigence and with the nature of most of the reparations sought. It thus denies this joint request and will only consider the Lead Co-Lawyers' alternative request and evaluate whether the reparations projects fulfil the requirements of Internal Rule 23quinquies(3)(b).

1125. The Lead Co-Lawyers request the Chamber to judicially recognize thirteen projects as appropriate reparations. These were set forth initially in their final request for reparation on 8 October 2013 and subsequently updated with information on 2 December 2013 and 31 March 2014. |3226| Each of the requested projects is discussed below.

19.3.1. Project 1: National Remembrance Day

1126. The Lead Co-Lawyers seek the establishment of an official, government-recognized National Remembrance Day, honouring victims of the Democratic Kampuchea era, both living and deceased, and acknowledging the crimes of the Khmer Rouge regime. They submit that the establishment of a National Remembrance Day would provide official and permanent recognition of Civil Party suffering and promote collective remembrance of the crimes committed during the Democratic Kampuchea period. This initiative would also assist in restoring dignity and in addressing the psychological harm suffered by victims of the Khmer Rouge as the result of the crimes adjudicated in Case 002. |3227| The Royal Government of Cambodia has agreed to declare 20 May as a public holiday for this purpose and the Lead Co-Lawyers have provided a letter from the Council of Ministers as proof of governmental support for this initiative. No funding is required to give effect to this award. |3228|

19.3.2. Project 2: Public Memorials Initiative

1127. The second project seeks to establish approximately five public memorial sites distributed throughout Cambodia. These sites would be selected to ensure that the sites are accessible, sustainable and utilize existing resources and capacities. The memorials would contain educational features to promote public understanding of the Khmer Rouge regime. The envisaged duration of this project is 36 months. |3229| The organizations Kdei Karuna and Youth for Peace would serve as implementing partners for this project, with the Cambodian Human Rights and Development Association (ADHOC) serving in an advisory capacity. The Lead Co-Lawyers state that this project enjoys the full support of both the Royal Government of Cambodia and the above-mentioned implementing non-governmental organisations. |3230| Although acknowledging that funding for this project has not been secured, the Lead Co-Lawyers urge that the project should nonetheless be endorsed by the Chamber. |3231|

1128. On 19 December 2013, the Chamber noted that the proposal for this project did not contain sufficiently detailed descriptions or an itemized budget and informed the Civil Parties that it would accept supplementary information in this regard until 31 March 2014. The Lead Co-Lawyer's response filed on 31 March 2014 noted international human rights jurisprudence and commentary citing the importance of public monuments as a form of reparations for mass crimes and requested the Chamber to underline the fundamental role of public monuments in the reparations process as it provides the victims a site for commemoration. |3232| No further detail was provided regarding project descriptions, budgets and funding.

19.3.3. Project 3: Construction of a memorial in Phnom Penh to honour the victims of forced evacuations

1129. With funding from the French Embassy in Cambodia and parliamentarian members of the French-Cambodian Friendship Group of the French National Assembly, this project proposes to engage Séra, a French-Cambodian artist, to create a group of sculptures within the Stat Chas (Old Stadium) roundabout park in front of Bun Rany Hun Sen High School in Phnom Penh. They are intended to depict the exodus of the Cambodian people from urban areas during the Khmer Rouge regime. This project could commence immediately and be completed before its intended inauguration on 17 April 2015. The full amount required for its realization, USD 88,400, has already been secured and the Phnom Penh Municipality has approved the project. |3233|

19.3.4. Project 4: Construction of a memorial to Cambodian victims living in France

1130. Two associations of Khmer Rouge victims and the International Federation of Human Rights (FIDH) propose the construction of a stupa in the pagoda at Vincennes, Paris, to serve as a place of remembrance and acknowledgment for the Cambodian Civil Parties living in France. This project could also commence immediately and be completed within a year. |3234| The City Hall of Paris has approved the project, and 10,000 EUR of the 70,140 EUR project have been pledged. The FIDH has undertaken to finance the remainder of the project by appealing to donors for funding. The Lead Co-Lawyers therefore submit that the Chamber should consider the funding for this project to be entirely secured. |3235|

19.3.5. Project 5: Testimonial Therapy

1131. The Lead Co-Lawyers propose a project described as testimonial therapy for the victims of crimes in Case 002. This project aims to provide effective treatment of psychological suffering resulting from Khmer Rouge era crimes through the recording of testimonies of traumatic experiences with the assistance of mental health workers. The testimonies recorded during these sessions would later be read out and handed over to the Civil Parties in a ceremony conducted in accordance with the victims' religious or spiritual beliefs and cultural practices. These events would be organized throughout Cambodia in or near the communities where the Civil Parties reside, with the participation of the Civil Parties, other survivors, relatives, community members, religious or spiritual leaders and representatives of governmental and non-governmental agencies. According to the Lead Co-Lawyers, this project would allow victims to process their traumatic experiences, restore their dignity, document human rights violations, and to advocate for their own needs and interests within Cambodia's ongoing transitional justice and reconciliation processes. Part of the project funds would be used to hire and train six psychologists, one of whom would be the project coordinator. |3236|

1132. Projects 5 and 6 were initially proposed for a duration of 16 months in 12 different communities. |3237| The budget was subsequently revised and funding obtained from the Commonwealth of Australia, the German Government and the Swiss Stiftung Kriegstrauma Therapie for a total project cost of USD 196,522 (for both projects). |3238| Due to budget revisions, the project will be limited to Phnom Penh. The Lead Co-Lawyers are currently seeking additional funding of between USD 800,000-1,000,000 to permit the extension of the project and request the Chamber to consider the entirety of the proposed project as reparations, including the portion that has yet to receive funding. |3239|

19.3.6. Project 6: Self-Help Groups

1133. This award is designed to facilitate self-help groups, which will provide therapy developed by the Transcultural Psychosocial Organisation (TPO), a Non-Governmental Organization active in the mental health field in Cambodia. It is intended to allow victims of forced transfer to express their suffering, promoting a process of healing from their trauma. The project includes six group therapy sessions, with monthly meetings and consultations with a professional therapist over the course of 9 months. |3240| This project has already commenced utilising the funding noted above. An additional USD 1,000,000 is sought for the continuation of this project along with project 5. All participating institutions have expressed their willingness to assist and finance this project. |3241|

19.3.7. Project 7: Permanent Exhibition

1134. The Lead Co-Lawyers propose the establishment of permanent public exhibition spaces in five provinces, which will display photographs, exhibits, documents, audio-visual recordings of Civil Parties and other survivors, artwork, historical displays and other interactive resources designed to preserve accounts of the Khmer Rouge era and to educate the public about the Khmer Rouge regime. |3242| Funding for this project has been fully secured. The Lead-Co Lawyers submit that the German Government has pledged EUR 80,000 for this project. All partners in the project have indicated their willingness to collaborate. |3243|

19.3.8. Project 8: Mobile Exhibition and Education Project: Exploring History and Transitional Justice

1135. The Lead Co-Lawyers propose the creation of exhibitions and educational initiatives to inform survivors and post-war generations of Cambodians about crimes committed during the Khmer Rouge era. Partners on this project are the Non-Governmental Organizations Kdei Karuna and Youth for Peace, who would implement it, with ADHOC and the Cambodian Defenders Project serving in an advisory capacity. |3244| Funding of EUR 100,000 for the implementation of the first phase of this project in six provinces and for 12 months was provided by the German Government. |3245| Additional funding of USD 23,000 was subsequently obtained permitting an extension of the project to another 3 provinces. |3246|

19.3.9. Project 9: Inclusion of a chapter on forced population movement and executions at Tuol Po Chrey within the Cambodian school curriculum

1136. The Lead Co-Lawyers seek to include a chapter on forced population movement and executions at Tuol Po Chrey within a Cambodian teacher's manual. This manual is currently published by DC-Cam (in collaboration with the Cambodian Ministry of Education) and guides the teaching of the history of Democratic Kampuchea in all Cambodian secondary schools. |3247| The Co-Lawyers have submitted the Chapter which is based entirely on the testimony of civil parties and witnesses in Case 002/01. |3248| A project report provided by DC-CAM indicates that the chapter has been carefully drafted "so as to avoid legal conclusions related to the Accused in Case 002 or historical judgments that clearly exceed Case 002/01's investigations into the Democratic Kampuchea regime." |3249| The manual, including the new chapter, would be distributed once the judgment in Case 002/01 is rendered. |3250| The total project cost of USD 57,160 has been provided by the German Development Cooperation (GIZ). |3251|

19.3.10. Project 10: Construction of a peace learning Centre

1137. The Lead Co-Lawyers seek to create a community peace learning centre at Samraong Khnong, in Battambang Province which would conduct seminars and training on Khmer Rouge era crimes and the work of the ECCC. It intends to create a library and to organize excursions for Cambodian youth to execution sites. The Project which remains subject to formal allocation of land, would be implemented by the Youth for Peace Organization and financed by the Swiss Agency for Development and Cooperation. |3252| The funding secured for this project to date, which is sufficient for its realization, amounts to USD 126,000. |3253|

19.3.11. Project 11: Booklet on Facts Adjudicated in Case 002/01 and Civil Party Participation

1138. The Lead Co-Lawyers propose the publication of a booklet explaining the judicial process before the ECCC, with a focus on documenting the crimes in Case 002/01 and an explanation of Civil Party participation. It would also include Civil Party statements given during the hearings. |3254| Full funding for this project, amounting to USD 5,000, has been secured through the German Development Cooperation (GIZ). |3255|

19.3.12. Project 12: Two Editions of the Verdict in Case 002/01

1139. The Lead Co-Lawyers propose the publication and distribution of two Khmer-language editions of the Case 002/01 verdict, one being the entire judgment and the other a summary version of it. According to the project proposal, USD 30,000 would be required to fully realize this project. To date, sufficient funding has been obtained to publish 4,000 summaries of the judgement and 1,200 (of the proposed 4,000) full text copies for distribution within 9 months of the delivery of the judgement. |3256|

19.3.13. Project 13: Inclusion of Civil Party names on the ECCC website

1140. The Civil Parties seek the inclusion of their names on the ECCC website as an additional means of recording their participation within the Case 002 trial. The Victims' Support Section and the Public Affairs Section would undertake this project, which could be realized within three months of the Case 002/01 verdict at no additional cost. |3257|

19.4. Harm suffered by the Civil Parties

1141. The Accused NUON Chea and KHIEU Samphan have been convicted of crimes against humanity in relation to movement of population (phases one and two) and executions at Tuol Po Chrey. Internal Rule 23quinquies(1) requires that reparations awarded by the Chamber acknowledge and address the harm suffered by Civil Parties as a result of the commission of these crimes.

1142. Thirty-one Civil Parties appeared before the Chamber in the course of Case 002/01. From 27 May 2013 to 4 June 2013, the Chamber set aside four trial days to hear oral evidence from Civil Parties specifically about the ways in which they suffered during the DK period. The Chamber also heard testimony from Expert CHHIM Sotheara, a psychologist and mental health professional with experience working with victims of the Khmer Rouge regime (including Civil Parties), who discussed the psychological impact of events during the DK period on those victims. Finally, many Civil Parties provided written accounts of injuries they suffered and crimes they witnessed during the DK era in their Civil Party applications, to which the Chamber also had regard.

1143. The evidence given by the Civil Parties painted a vivid picture of the ways in which they suffered as a result of the crimes committed by the Accused.

1144. In the days following 17 April 1975, many Civil Parties feared for their lives when the Khmer Rouge soldiers forced them to evacuate the city. |3258| They had to abandon their homes and most of their material possessions. |3259| Some were told to pack only for a short journey, as they would be returning to Phnom Penh after three days. |3260| Civil Parties LAY Bony and OR Ry brought only money, assuming - wrongly - that they would be able to use currency to buy what they needed. |3261| Other Civil Parties took vehicles or goods with them but frequently had them confiscated or appropriated by Khmer Rouge soldiers as they left the city. |3262| In any case without fuel, cars or motorbikes quickly became useless and had to be abandoned. Still others left behind items of significant sentimental value, and therefore lost both their belongings and also cherished mementoes important to their personal identities. |3263|

1145. The evacuation of the population took place in April, during the dry season. Forced to walk long distances under the heat of the sun, many Civil Parties suffered physical pain and extreme discomfort. |3264| This was compounded by the lack of food, water and opportunities to rest; Civil Parties who gave evidence before the Chamber reported experiencing severe hunger, thirst and exhaustion. |3265| Many were reduced to eating whatever they could find en route and drinking dirty water. |3266| They slept wherever they could find shelter, but frequently had to lie on the ground under trees or out in the open. |3267| No medicine or healthcare was available; Civil Parties LAY Bony, PECH Srey Phal, YOS Phal, CHHENG Eng Ly and BAY Sophany described how they or their family members fell ill and, in some cases, died. |3268| Some Civil Parties recalled that their journeys into the countryside - and all the attendant privation - continued for up to a month. |3269|

1146. During the long march out of Phnom Penh, many Civil Parties witnessed harrowing events. They walked past the bodies of the dead and dying. |3270| Civil Party YIM Sovann, who was a teenager in 1975, reported that she was "traumatized" by the sight of the corpses; Civil Party LAY Bony similarly remembered being "terrified and shocked" by them. |3271| As he travelled further away from the capital, and evacuees increasingly succumbed to exhaustion, Civil Party PIN Yathay eventually became accustomed to the sight of the dead bodies on the roadside. |3272| Civil Parties also saw adults and children suffering from illness and malnutrition, and people who had sustained terrible injuries, reportedly as a result of assault or rape. |3273| In some cases, Civil Parties watched as Khmer Rouge soldiers brutally killed other evacuees, including infants. |3274| Other Civil Parties were themselves threatened, held at gunpoint or beaten by soldiers as they left their homes and travelled out of Phnom Penh. |3275|

1147. In the chaos of the evacuation, some Civil Parties were separated from the other members of their family. |3276| As he left Phnom Penh, Civil Party MEAS Saran searched in vain for his pregnant wife; unable to find her in the city, he never saw her again. |3277| Other Civil Parties were separated from their relatives shortly after their arrival at the new locations. |3278|

1148. Those Civil Parties involved in the second movement of the population reported experiencing similar hardships which for most of them had even worse consequences due to their already weakened state caused by the first forced transfer. They were forced onto crowded trains and trucks; |3279| Civil Party CHAU Ny and his family did not know whether they were being taken away to be executed. |3280| Food, clean water, medicine and medical care were generally not provided. |3281| Some Civil Parties witnessed the killing of other evacuees by Khmer Rouge soldiers. |3282| Civil Party AUN Phally recalled seeing dead bodies left on the road. |3283| Some Civil Parties' families were separated on arrival at the new locations. |3284|

1149. Amongst the Civil Parties admitted in Case 002, there were also a number of victims who claimed that their relatives - generally soldiers or officials under the LON Nol regime - were among those executed at Tuol Po Chrey. |3285| Other Civil Parties described the disappearance of family members who had worked for the LON Nol administration; although they did not know how or where their relations died, the circumstances of the disappearances suggested to the Chamber that at least some of them may also have been killed at Tuol Po Chrey. |3286|

1150. Having heard expert evidence, the Chamber is satisfied that the suffering inflicted on the Civil Parties as a result of the crimes committed by the Accused has contributed to the symptoms of long-term psychological damage reported by a great number of them. |3287| Expert CHHIM Sotheara explained that in many cases, the experiences of victims of the Khmer Rouge caused lasting trauma, with symptoms such as nightmares, post-traumatic stress disorder, depression, anxiety and paranoia. |3288| Post-traumatic stress disorder can manifest itself through vivid recollections of past events; a reluctance to discuss or revisit the past; physical trembling; and insomnia. |3289| The Chamber finds that, as a consequence of the crimes of which the Accused have been convicted, the Civil Parties and a very large number of additional victims, have suffered immeasurable harm, which includes physical suffering, economic loss, loss of dignity, psychological trauma and grief arising from the loss of family members or close relations. |3290|

19.5. Assessment of all awards sought by the Lead Co-Lawyers

1151. The Chamber acknowledges that the following awards which meet the requirements of Internal Rule 23quinquies(3)(b) address the harm suffered by victims and provide moral and collective reparations to the Civil Parties. These projects appropriately give effect to the award sought by the Lead Co-Lawyers and may be implemented.

19.5.1. Projects concerning Remembrance and Memorialisation: Projects 1, 3

1152. The Trial Chamber has previously observed that other international bodies have characterised as reparation comparable, official acknowledgements of suffering of considerable symbolic significance for victims. |3291| The Chamber agrees with the Lead Co-Lawyers that the provision of an official national holiday amounts to a nationwide and official acknowledgement of the harm suffered by the victims. Public memorials may further assist to restore the dignity of victims, provide public acknowledgement of the crimes committed and harm suffered, and assist in healing the wounds of all victims by diffusing their effects far beyond the individuals who were admitted as Civil Parties. |3292| Both initiatives are further likely to encourage learning and knowledge about the crimes committed during the Khmer Rouge regime, to promote a culture of peace and to contribute to national reconciliation. |3293|

1153. In view of the Royal Government of Cambodia's expressed willingness to declare 20 May as an annual day of remembrance and official public holiday, no specific financial outlay appears to be required in order to give effect to this initiative. In relation to the second project, all funding required for its implementation has already been secured and the Phnom Penh municipality has agreed to the proposed location of the memorials. Further, the implementing actors for this latter project (namely the French Embassy, the French-Cambodian Friendship Group of the French National Assembly and Séra) have formally indicated willingness to realize it. The Chamber consequently endorses projects 1 and 3.

19.5.2. Projects Concerning Therapy and Psychological Assistance to Victims: Projects 5, 6

1154. The Chamber also finds that projects 5 and 6, which are intended to provide psychological assistance to victims, comprise "collective and moral" reparations within the scope of the ECCC's legal framework and otherwise satisfy the requirements of Internal Rule 23quinquies. The Supreme Court Chamber has also previously acknowledged that provision of psychological care constitutes an appropriate form of reparation. |3294| In addition, the public ceremonies contemplated in the aftermath of project 5 are also likely to promote public awareness of the harm suffered by the victims of Khmer Rouge era crimes and thereby may contribute to national reconciliation.

1155. Finally, the Chamber notes that the Civil Party Lead Co-Lawyers have demonstrated that the required funding has been secured for that portion of the projects set in Phnom Penh and that the partners to these projects have committed to ensuring that they are implemented. It therefore endorses projects 5 and 6. Although funding has not yet been secured for extension of the project outside Phnom Penh, the Chamber approves its extension to the extent that additional funds allow.

19.5.3. Documentation and Education: Projects 7, 8, 9, 10, 11, 12 and 13

1156. In relation to projects 7, 8, 10 and 11, all of which concern documentation and education, the Chamber notes these projects also comply with the requirements of Internal Rule 23quinquies and are of a collective and moral nature. Public education regarding the suffering of victims and the nature of the Khmer Rouge regime is further likely to advance the goals of acknowledgment, remembrance, and awareness of the crimes committed and the suffering resulting therefrom and is therefore likely to benefit not only the Civil Parties, but also to generally contribute to national reconciliation. The Chamber notes that funding for the implementation of these projects has been secured and that the partners to those projects have all expressed their willingness to assist in their realisation.

1157. In relation to project 9, the Trial Chamber's earlier direction "remind[ed] the Civil Parties that the Chamber is unable to endorse any book chapter on facts that are currently under judicial consideration and need to be finally adjudicated." |3295| The Lead Co-Lawyers have nonetheless submitted the proposed chapter they assert has avoided making legal conclusions in particular regarding the responsibility of the Accused in Case 002/01 and asks the Chamber to reconsider its prior direction. The Chamber recognises that providing the schools with an accurate basis for the discussion of events during the Democratic Kampuchea era is a laudable goal and that the evidence of Civil Parties and Witnesses in the Chapter is helpful in this regard. The Chamber emphasises however that the determination of the criminal responsibility of the Accused and the factual findings are the sole prerogative of the ECCC and depend upon an assessment of witness and civil party credibility. The contents of the book chapter must be understood in this context. It would therefore be appropriate to append a disclaimer to the Chapter, and the Chamber so directs. |3296| With this proviso, the Chamber endorses project 9.

1158. In relation to projects 12 and 13, the Civil Parties request that names be included in the final judgement in Case 002. When faced with a similar request in Case 001, the Chamber noted that such measures were technically beyond the scope of reparations available under the ECCC legal framework as it then existed. The Chamber nonetheless observed in its Case 001 Judgement that the ECCC alone was capable of honouring these requests and that other international bodies have characterised comparable, official acknowledgements of suffering as reparation of considerable symbolic significance for victims. As they provide tangible means by which the collective suffering of victims may be acknowledged, the Chamber therefore granted these, and similar requests. |3297| The Chamber reiterates that public provision of the judgement and information surrounding Case 002 may contribute to reconciliation initiatives within Cambodian society at large and public education. |3298|

1159. The Chamber notes the willingness of the Victims' Support and Public Affairs Sections to include the names of all Civil Parties in Case 002 on the ECCC website, and similarly endorses the Public Affairs Sections' distribution of the Case 002/01judgement - to the extent possible within resources obtained to date - as valuable measures of reparation within the meaning of Internal Rule 23quinquies(3).

1160. Consequently, the Chamber endorses projects 7, 8, 9, 10, 11, 12 and 13.

19.5.4. Projects not endorsed by the Chamber: Projects 2 and 4

1161. Although the Chamber considers that the awards sought in projects 2 and 4 may well appropriately address the harm suffered by victims and may provide moral and collective reparations to the Civil Parties' suffering, Internal Rule 23quinquies(3)(b) requires the Lead Co-Lawyers, as a condition of judicial endorsement of any award, to demonstrate that all projects have secured sufficient external funding.

1162. While the Chamber expressly noted that Project 2 did not contain sufficiently detailed descriptions or an itemized budget, no significant other supplementary information, such as the proposed locations of the memorials contemplated or the agreement of any involved third parties, has subsequently been provided.

1163. The Chamber acknowledges the efforts made to give concrete expression to Project 4. It notes the approval given by City Hall of Paris and the progress in pledges. However, so far as the Chamber is aware, the fundraising operation is at this stage still ongoing. While FIDH has undertaken to continue its search for resources to fund this project, this commitment does not guarantee that financing will in fact be obtained. Therefore, the Chamber cannot endorse this project as it has not been fully demonstrated that sufficient external funding has yet been secured.

1164. The Chamber generally welcomes any initiative that offers support to the victims, keeps their memory alive, acknowledges their suffering and awakens public awareness to avoid repetition of acts such as those that occurred. The Chamber also wishes to remind donors that they have the option to support measures that have not been specifically endorsed in this judgement.

20. DISPOSITION

FOR THE FOREGOING REASONS, having considered all the evidence and the submissions of the Parties, the Trial Chamber decides as follows:

PURSUANT TO Articles 5, 29 (new), and 39 (new) of the ECCC Law, the Trial Chamber finds the Accused NUON Chea to be GUILTY of the crimes against humanity of extermination (encompassing murder), persecution on political grounds, and other inhumane acts (comprising forced transfer, enforced disappearances and attacks against human dignity) committed within the territory of Cambodia between 17 April 1975 and the end of 1977. On the basis of the foregoing, the Chamber sentences NUON Chea to a single sentence of LIFE IMPRISONMENT.

PURSUANT TO Articles 5, 29 (new), and 39 (new) of the ECCC Law, the Trial Chamber finds the Accused KHIEU Samphan to be GUILTY of the crimes against humanity of extermination (encompassing murder), persecution on political grounds, and other inhumane acts (comprising forced transfer, enforced disappearances and attacks against human dignity) committed within the territory of Cambodia between 17 April 1975 and the end of 1977. On the basis of the foregoing, the Chamber sentences KHIEU Samphan to a single sentence of LIFE IMPRISONMENT.

DECLARING the consolidated group of Civil Parties, individually listed in Annex 2, to have suffered harm as a direct consequence of the crimes for which NUON Chea and KHIEU Samphan have been convicted, and pursuant to Internal Rule 23quinquies(3)(b), the Chamber grants, in part, the Civil Party Lead Co-Lawyers' requests for moral and collective reparations. As set out in detail in Section 19 of this judgement, the Chamber endorses, as projects giving appropriate effect to the award sought and which may be implemented, 11 projects concerning remembrance of the victims and memorialisation of the suffering endured, therapy and psychological assistance to the victims, and documentation and education. The Chamber denies requests concerning two projects which fail to satisfy the requirements of Internal Rule 23quinquies(3)(b) (Section 19).

The Chamber declares that Nuon Chea was taken into Pre-Trial detention on 19 September 2007 and that Khieu Samphan was taken into Pre-Trial detention on 19 November 2007 and that both Accused have remained in detention until the delivery of the verdict and sentence on 7 August 2014. This judgement, which was pronounced publicly on 7 August 2014, is appealable by the Parties in accordance with the Internal Rules. Given the gravity of the crimes for which they have been convicted, and subject to any order of the Supreme Court Chamber, NUON Chea and KHIEU Samphan shall remain in detention until this judgement becomes final.

Done in Khmer, English and French.
Dated this 7th day of August 2014
At Phnom Penh
Cambodia

Greffiers
LIM Suy Hong
Matteo CRIPPA

Judge NIL Nonn
Presiding

Judge Silvia CARTWRIGHT

Judge YA Sokhan

Judge Jean-Marc LAVERGNE

Judge YOU Ottara


Notes:

1. Introductory Submission, D3, 18 July 2007. The Co-Prosecutors have sole jurisdiction to initiate prosecution of crimes under ECCC jurisdiction by issuing an Introductory Submission (Internal Rules 49(1) and 53). This initiates a judicial investigation conducted by the Co-Investigating Judges (Internal Rule 53(1)). Once this judicial process has started, a judicial investigation is compulsory for crimes within the jurisdiction of the ECCC (Internal Rule 55(1)). The Co-Prosecutors cannot reduce or withdraw all or part of the charges which must be determined by judicial decision. [Back]

2. Separation Order (OCIJ), D18, 19 September 2007. [Back]

3. Case 001, Judgement, 26 July 2010 ('KAING Guek Eav Trial Judgement"); See also, Case 001, Appeal Judgement (SCC), 3 February 2012 ('KAING Guek Eav Appeal Judgement"). [Back]

4. Dismissal Order (OCIJ), D420, 14 September 2010. [Back]

5. Written Record of Arrest of NUON Chea (OCIJ), C7, 19 September 2007; Provisional Detention Order of NUON Chea (OCIJ), C9, 19 September 2007; Detention Order of IENG Sary (OCIJ), C23, 14 November 2007; Police Custody Decision (OCIJ), C14, 12 November 2007; Written Record of Arrest of KHIEU Samphan (OCIJ), C24/I, 19 November 2007; Provisional Detention Order (OCIJ), C26, 19 November 2007; Police Custody Decision (OCIJ), C15, 12 November 2007; Written Record of Arrest (OCIJ), C13/I, 12 November 2007; Arrest Warrant (OCIJ), C13, 8 November 2007. [Back]

6. Closing Order (OCIJ), D427, 15 September 2010 ("Closing Order"), para. 1613. [Back]

7. Decision on IENG Thirith and NUON Chea's Appeal against the Closing Order (PTC), D427/2/12, 13 January 2011, p. 6; Decision on KHIEU Samphan's Appeal against the Closing Order (PTC), D427/4/14, 13 January 2011, p. 4; Decision on IENG Sary's Appeal against the Closing Order (pTc), D427/1/26, 13 January 2011, pp. 4-5. The Pre-Trial Chamber amended the Closing Order to require a nexus between crimes against humanity and an armed conflict and affirmed that rape may be categorised as another inhumane act. The Trial Chamber later rejected the nexus requirement (Decision on Co-Prosecutors' Request to Exclude Armed Conflict Nexus Requirement from the Definition of Crimes against Humanity, E95/8, 26 October 2011, para. 33). [Back]

8. Direction to the Parties (In Advance of Discussion at Initial Hearing of Provisional List of Witnesses, Experts and Civil Parties) (TC), E108, 29 June 2011. [Back]

9. Decision on NUON Chea's Preliminary Objection alleging the Unconstitutional Character of the ECCC Internal Rules, E51/14, 8 August 2011; Decision on NUON Chea motions regarding fairness of judicial investigations (E51/3, E82, E88 and E92), E116, 9 September 2011; Decision on the Applicability of Joint Criminal Enterprise, E100/6, 12 September 2011; Decision on IENG Sary's Rule 89 Preliminary Objection (ne bis in idem and Amnesty and Pardon), E51/15, 3 November 2011. Other submissions, while described as preliminary objections by the parties, were instead considered by the Chamber as more appropriate for resolution in the judgement or deferred to future trials in Case 002 insofar as they concerned matters beyond the scope of Case 002/01 (Response to Issues Raised by Parties in Advance of Trial and Scheduling of Informal Meeting with Senior Legal Officer on 18 November 2011 (TC), E141, 17 November 2011). [Back]

10. Decision on Defence Preliminary Objections (Statute of Limitations on Domestic Crimes), E122, 22 september 2011. [Back]

11. Severance Order Pursuant to Internal Rule 89ter, E124, 22 September 2011; Annex: List of Paragraphs and Portions of the Closing Order relevant to Case 002/01, Amended further to the Trial Chamber's Decision on IENG Thirith's Fitness to Stand Trial (E138) and the Trial Chamber's Decision on Co-Prosecutors' Request to Include Additional Crime Sites within the Scope of Trial in Case 002/01 (E163), E124/7.3. [Back]

12. Notification of Decision on Co-Prosecutors' Request to Include Additional Crime Sites within the Scope of the Trial in Case 002/01 (E163) and Deadline for Submission of Applicable Law Portion of Closing Briefs (TC), E163/5, 8 October 2012. [Back]

13. Urgent Application for Appointment of Fitness Expert, E30, 2 February 2011; Defence Request for Appointment of a Neuropsychiatrist to Assess Madame IENG Thirith's Fitness to Stand Trial, E52, 21 February 2011; See also, IENG Sary's Motion to Conduct the Trial through Half-Day Sessions, E20, 19 January 2011. [Back]

14. Order Assigning Expert, E62/3, 4 April 2011. [Back]

15. Decision on IENG Thirith's Fitness to Stand Trial, E138, 17 November 2011.Following an appeal by the Co-Prosecutors, the Supreme Court Chamber ordered further medical treatment of (Decision on Immediate Appeal against Trial Chamber's Order to Release IENG Thirith (SCC), E138/1/7, 13 December 2011). The Trial Chamber, following consultation with medical experts, oversaw further medical treatment of during the first half of 2012 and re-called the Court-appointed experts to assess the Accused's fitness to stand trial in August 2012. On the basis of the experts' conclusions, the Trial Chamber on 13 September 2012 affirmed its finding that IENG Thirith was unfit to stand trial, again ordering her release (Decision on Reassessment of Accused IENG Thirith's Fitness to Stand Trial following Supreme Court Chamber Decision of 13 December 2011, E138/1/10, 13 September 2012). Following a further appeal by the Co-Prosecutors, the Supreme Court Chamber ordered the Trial Chamber to implement a series of post-release conditions on IENG Thirith (Decision on Immediate Appeal against the Trial Chamber's Order to Unconditionally Release IENG Thirith (SCC), E138/1/10/1/5/7, 14 December 2012). Following clarification from the Supreme Court Chamber concerning these conditions, the Trial Chamber implemented them on 27 June 2013 (IENG Thirith Defence Request for Clarification of the Execution of the Supreme Court Chamber's Decision on Immediate Appeal against the Trial Chamber's Order to Unconditionally Release the Accused IENG Thirith (E138/1/10/1/5/8), E138/1/10/1/5/8/3 (TC), 27 June 2013; Order on Measures to be Imposed on IENG Thirith, E138/1/10/1/5/8/4 (TC), 19 July 2013). [Back]

16. Decision on NUON Chea's Fitness to Stand Trial and Defence Motion for Additional Medical Expertise, E115/3, 15 November 2011. [Back]

17. T. 29 March 2013, p. 2; Second Decision on Accused NUON Chea's Fitness to Stand Trial, E256/5, 2 April 2013. [Back]

18. Scheduling Order for Preliminary Hearing to Stand Trial (TC), E110, 11 August 2011. [Back]

19. Medical Examination of Accused IENG Sary, E222, 24 August 2012; Medical Report on Mr. IENG Sary, E222/1, 10 September 2012; Re-appointment of Professor A. John CAMPBELL (IENG Sary) (TC), E238, 8 October 2012. [Back]

20. Decision on Accused IENG Sary's Fitness to Stand Trial, E238/9, 26 November 2012. [Back]

21. Termination of the Proceedings against the Accused IENG Sary, E270/1, 14 March 2013. In the interests of justice, the Chamber still took into account relevant submissions made by the IENG Sary Defence prior to his death that remained pertinent to issues in Case 002/01 (see e.g. Decision on Severance of Case 002 following Supreme Court Chamber Decision of 8 February 2013, E284, 26 April 2013, para. 53; Third Decision on Objections to Documents Proposed for Admission Before the Trial Chamber, E185/2, 12 August 2013, fn. 2). [Back]

22. Decision on the Co-Prosecutors' Immediate Appeal of the Trial Chamber's Decision concerning the Scope of Case 002/01 (SCC), E163/5/1/13, 8 February 2013. [Back]

23. Memorandum on Directions to the parties in consequences of the Supreme Court Chamber's Decision on Co-Prosecutor's Immediate Appeal of the Trial Chamber's Decision concerning the Scope of Case 002/01 (TC), E163/5/1/13/1, 12 February 2013. [Back]

24. T. 29 March 2013, pp. 2-4; See also, Decision on Severance of Case 002 following Supreme Court Chamber Decision of 8 February 2013, E284, 26 April 2013. On 23 July 2013, the Supreme Court Chamber dismissed appeals by the Co-Prosecutors and NUON Chea against the Trial Chamber's decision to again sever the proceedings and limit the scope of Case 002/01 (Decision on Immediate Appeals against Trial Chamber's Second Decision on Severance of Case 002, Summary of Reasons, E284/4/7, 23 July 2013; See also, Decision on Immediate Appeals against Trial Chamber's Second Decision on Severance of Case 002, E284/4/8, 25 November 2013). [Back]

25. Annex: List of Paragraphs and Portions of the Closing Order relevant to Case 002/01, Amended further to the Trial Chamber's Decision on IENG Thirith's Fitness to Stand Trial (E138) and the Trial Chamber's Decision on Co-Prosecutors' Request to Include Additional Crime Sites within the Scope of Trial in Case 002/01 (E163), E124/7.3. [Back]

26. Closing Order, paras 869-894. [Back]

27. Closing Order, paras 1131-1150. [Back]

28. Closing Order, para. 1525(i), 1525(iv); Annex: List of Paragraphs and Portions of the Closing Order relevant to Case 002/01, Amended further to the Trial Chamber's Decision on IENG Thirith's Fitness to Stand Trial (E138) and the Trial Chamber's Decision on Co-Prosecutors' Request to Include Additional Crime Sites within the Scope of Trial in Case 002/01 (E163), E124/7.3; See also,Section 14: Joint Criminal Enterprise, paras 780-781, 812-813; In this judgement, the Chamber refers to both "Khmer Republic Soldiers and Officials" and at other times to "Khmer Republic Officials." The latter term is inclusive of Khmer Republic Soldiers. [Back]

29. Annex: List of Paragraphs and Portions of the Closing Order relevant to Case 002/01, Amended further to the Trial Chamber's Decision on IENG Thirith's Fitness to Stand Trial (E138) and the Trial Chamber's Decision on Co-Prosecutors' Request to Include Additional Crime Sites within the Scope of Trial in Case 002/01 (E163), E124/7.3. [Back]

30. Agreement between the United Nations and the Royal Government of Cambodia concerning the Prosecution under Cambodian Law Of Crimes Committed during the Period of Democratic Kampuchea, 6 June 2003 ("ECCC Agreement"), Articles 1, 2; Law on the Establishment of Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed during the Period of Democratic Kampuchea, 10 August 2001 with inclusion of amendments as promulgated on 27 October 2004 (NS/RKM/1004/006) ("ECCC Law"), Article 2. [Back]

31. The Supreme Court Chamber has held that the qualification of an Accused as a senior leader or a person most responsible is primarily a matter of prosecutorial and investigative policy within the sole discretion of the Co-Prosecutors and Co-Investigating Judges. As such, it is not justiciable before the Trial Chamber unless an abuse of discretion is alleged. Whether or not an Accused is a Khmer Rouge official, however, is a jurisdictional requirement justiciable before the Trial Chamber (KAING Guek Eav Appeal Judgement, paras 79-80). [Back]

32. Closing Order, paras 1327-1328. [Back]

33. Preliminary Objections Concerning Jurisdiction, E46, 14 February 2011, paras 11-15; See also, Directions to Parties concerning Preliminary Objections and Related Issues (TC), E51/7, 5 April 2011, p. 3 (considering that resolution of KHIEU Samphan's objections concerning personal jurisdiction entail a mixed assessment of law and fact, the Chamber deferred consideration of these submissions until after the hearing of evidence). [Back]

34. See Section 7: Roles and Functions - Nuon Chea, paras 347-348; Section 8: Roles and Functions -Khieu Samphan, paras 408-409. [Back]

35. KAING Guek Eav Appeal Judgement, para. 91; Cambodian Criminal Code, Articles 1 ("The criminal law defines the offenses, determines those who may be found guilty of committing them, sets penalties, and determines how they shall be enforced"), 3 ("Conduct may give rise to criminal conviction only if it constituted an offence at the time it occurred. A penalty may be imposed only if it was legally applicable at the time the offence was committed"), 5 ("In criminal matters, the law shall be strictly construed. A judge may neither expand its scope of application nor interpret it by analogy"), 8 ("The provisions of this Code may not have the effect of denying justice to the victims of serious offences which, under special legislation, are characterised as violations of international humanitarian law, international custom, or international conventions recognised by the Kingdom of Cambodia"). [Back]

36. KAING Guek Eav Trial Judgement, paras 26-34; KAING Guek Eav Appeal Judgement, paras 8997; Cambodian Criminal Code, Article 3. [Back]

37. KAING Guek Eav Appeal Judgement, para. 95 citing Aleksovski Appeal Judgement, paras 126127. [Back]

38. Consolidated Preliminary Objections, E51/3, 25 February 2011, paras 43-48, 53; Preliminary Objections Concerning Jurisdiction, E46, 14 February 2011, paras 4-5, 19, 24; See also, Summary of IENG Sary's Rule 89 Preliminary Objections & Notice of Intent of Noncompliance with Future Informal Memoranda Issued in Lieu of Reasoned Judicial Decisions subject to Appellate Review", E51/4, 25 February 2011, para. 24(e) referring to IENG Sary's Appeal against the Closing Order, D427/1/6, 25 October 2010, paras 106, 108, 125. [Back]

39. Nuremberg Principles, Principle II ("The fact that internal law does not impose a penalty for an act which constitutes a crime under international law does not relieve the person who committed the act from responsibility under international law"); Justice Judgement, p. 975 ("to apply the ex post facto principle to judicial decisions of common international law would have been to strangle that law at birth"). [Back]

40. Kononov v. Latvia, ECtHR (Application No. 36376/04), Judgement, 17 May 2010, para. 208; See also, KAING Guek Eav Appeal Judgement, fn. 188. [Back]

41. When adopting the new Criminal Code, which incorporates definitions of genocide, crimes against humanity and war crimes into national law, the Cambodian lawmakers further expressly stated in Article 8 that the "provisions of this Code may not have the effect of denying justice to the victims of serious offenses which, under special legislation, are characterised as violations of international humanitarian law, international custom, or international conventions recognised by the Kingdom of Cambodia". [Back]

42. Constitutional Council Decision on EC Law, E9/7.2, Decision No. 040/002/2001, Case No. 038/001/2001, 12 February 2001, pp. 1-2 (original text in Khmer. Unofficial translation in English). Similarly, the Pre-Trial Chamber held that the Royal Government of Cambodia included an exception for international crimes in their formulation of the principle of legality in national law (Decision on Appeals by NUON Chea and IENG Thirith Against the Closing Order, D427/3/15, 15 February 2011, paras 96-97). [Back]

43. KAING Guek Eav Appeal Judgement, paras 99-100. [Back]

44. KAING Guek Eav Appeal Judgement, paras 99-100. [Back]

45. See Section 9: Applicable Law: Crimes Against Humanity, paras 411, 415, 426, 435-436. [Back]

46. See Section 13: Individual Criminal Responsibility, paras 689, 691, 697, 699, 701, 703, 714. The Pre-Trial, Trial and Supreme Court Chambers, in determining whether a crime or mode of responsibility was sufficiently foreseeable and accessible to , took into account whether a crime constituted customary international law, whether a crime was codified in conventional law, the grave nature of the crimes, a record of charges and convictions for the charged crimes at international tribunals and other courts prosecuting international crimes, whether a crime was also criminalised in domestic law and the position of the accused in the (Decision on IENG Sary's Appeal Against the Closing Order (PTC), D427/1/30, 11 April 2011, paras 253, 257, 263, 331-332, 355, 460; KAING Guek Eav Appeal Judgement, paras 96, 160-162, 211-212, 280; KAING Guek Eav Judgement, paras 31-32). [Back]

47. ECCC Law, Articles 20 new, 23 new, 33 new; ECCC Agreement, Article 12(1); Internal Rule 2. [Back]

48. ECCC Agreement, Article 12(2); Internal Rules, Preamble; KAING Guek Eav Judgement, para. 35. [Back]

49. ECCC Law, Article 33 new. An accused is guaranteed certain fundamental rights during the trial phase of proceedings (see ECCC Agreement, Article 13(1) (referring to ICCPR, Articles 14 and 15); ECCC Law, Articles 34 new, 35 new). [Back]

50. Internal Rule 21(1)(d). [Back]

51. Internal Rule 87(1). [Back]

52. Internal Rule 87(1). [Back]

53. The English and Khmer versions of Internal Rule 87(1) provide a "beyond reasonable doubt" standard, while "intime conviction" is provided in the French version (KAING Guek Eav Judgement, para. 45). [Back]

54. Order to File Material in Preparation for Trial (TC), E9, 17 January 2011, p.1; See also, Decision on IENG Thirith and NUON Chea's Appeal against the Closing Order (PTC), D427/2/12, 13 January 2011, p. 6; Decision on KHIEU Samphan's Appeal against the Closing Order (PTC), D427/4/14, 13 January 2011, p. 4; Decision on IENG Sary's Appeal against the Closing Order (PTC), D427/1/26, 13 January 2011, pp. 4-5. [Back]

55. KAING Guek Eav Trial Judgement, para. 38. [Back]

56. Internal Rules 9(5)-(6), 10(4), 55(6), 55(11), 86; See also, Decision on Defence Requests Concerning Irregularities Alleged to Have Occurred during the Judicial Investigation (E221, E223, E224, E224/2, E234, E234/2, E241 and E241/1), E251, 7 December 2012, para. 18. [Back]

57. Written Record of Initial Appearance of NUON Chea (OCIJ), D20, 19 September 2007; Written Record Initial Appearance of KHIEU Samphan (OCIJ), D42, 19 November 2007. [Back]

58. Internal Rule 87(1). [Back]

59. Decision Concerning New Documents and Other Related Issues, E190, 30 April 2012, para.21; NUON Chea Defence Notice to the Trial Chamber Regarding Research at DC-Cam (E211) (TC), E211/2, 13 August 2012, para. 4; Case 001, Decision on Parties Requests to Put Certain Materials before the Chamber pursuant to Internal Rule 87(2), E176, 28 October 2009, para. 13. [Back]

60. Decision Concerning New Documents and Other Related Issues, E190, 30 April 2012, para. 20; Decision on Co-Prosecutors' Rule 92 Submission Regarding the Admission of Witness Statements and Other Documents before the Trial Chamber, E96/7, 20 June 2012, paras 18-20; Decision on Defence Requests Concerning Irregularities Alleged to Have Occurred During the Judicial Investigation (E221, E223, E224, E224/2, E234, E234/2, E241 and E241/1), E251, 7 December 2012, para. 25. [Back]

61. Internal Rule 87(3). [Back]

62. Internal Rules 80(1)-(3). [Back]

63. Decision Concerning New Documents and Other Related Issues, E190, 30 April 2012, paras 17, 23, 28, 38. [Back]

64. Decision Concerning New Documents and Other Related Issues, E190, 30 April 2012, para. 27, fn. 38. This standard is based on that applied at the investigation phase for investigative acts which result in the placement of material on the case file (Internal Rule 55(5)). [Back]

65. Internal Rules 87(3). [Back]

66. See e.g. Decision on Objections to the Admissibility of Witness, Victim and Civil Party Statements and Case 001 Transcripts Proposed by the Co-Prosecutors and Civil Party Lead Co-Lawyers, E299, 15 August 2013, paras 40-43. [Back]

67. Trial Chamber Response to Co-Prosecutors' Requests concerning Testimony of the Accused (E101 and E101/1) (TC), E101/5, 27 October 2011, p. 1; Response to Issues Raised by Parties in Advance of Trial and Scheduling of Informal Meeting with Senior Legal Officer on 18 November 2011 (TC), E141, 17 November 2011, p. 3. [Back]

68. T. 5 December 2011, pp. 39-40 (NUON Chea); T. 13 December 2011, pp. 58-59 (IENG Sary); T. 13 December 2011, p. 66 (KHIEU Samphan).The Accused were exempt from taking an oath (Internal Rule 90). [Back]

69. Internal Rule 90(1); Trial Chamber Response to Co-Prosecutors' Requests concerning Testimony of the Accused (E101 and E101/1) (TC), E101/5, 27 October 2011, p. 1; Response to Issues Raised by Parties in Advance of Trial and Scheduling of Informal Meeting with Senior Legal Officer on 18 November 2011 (TC), E141, 17 November 2011, p. 3. [Back]

70. T. 18 April 2012, p. 40; See also, Internal Rule 87(5). [Back]

71. T. 13 December 2011, pp. 62-96; T. 12 January 2012, pp. 51-83; See also, T. 16 January 2012, pp. 77-79. [Back]

72. T. 29 May 2013, pp. 18-24, 28, 54-55, 85-88; T. 30 May 2013, pp. 16-18, 80-83; T. 4 June 2013, pp. 24-25, 68-70, 109-110. [Back]

73. T. 9 July 2013, pp. 41-43. [Back]

74. T. 31 October 2013, pp. 68-73. [Back]

75. T. 5 December 2011; T. 6 December 2011, pp. 4-31; T. 13 December 2011, pp. 2-55; T. 14 December 2011, pp. 2-55; T. 15 December 2011, pp. 29-102; T. 10 January 2012, pp. 10-72; T. 11 January 2012, pp. 9-53; T. 12 January 2012, pp. 8-51; T. 30 January 2012, pp. 1-31; T. 31 January 2012, pp. 1-55; T. 8 February 2012, pp. 8-53; T. 9 February 2012, pp. 39-50; T. 16 February 2012, pp. 4-10; T. 20 March 2012, pp. 52-53; T. 19 March 2012, p. 23; T. 18 April 2012, pp. 3-4. [Back]

76. T. 18 April 2012, pp. 4-7. [Back]

77. T. 20 June 2012, pp. 71-73; T. 10 October 2012, pp. 6-7; T. 6 June 2013, pp. 37-41; T. 9 July 2013, pp. 16-27; T. 29 May 2013, pp. 26-27, 28, 55-56; T. 30 May 2013, pp. 18-20, 83-85; T. 4 June 2013, p. 26, 70-71. [Back]

78. T. 17 July 2013, pp. 16-17. [Back]

79. T. 31 October 2013, pp. 1-34. [Back]

80. Internal Rule 23(4); KAING Guek Eav Trial Judgement, para. 52; T. 5 April 2011, p. 100; Trial Chamber Response to Motions E67, E57, E56, E58, E23, E59, E20, E33, E71 and E73 following Trial Management Meeting of 5 April 2011 (TC), E74, 8 April 2011, p. 1. [Back]

81. All witnesses, however, testified under oath unless exempt by virtue of their age or special relationship with an Accused or Civil Party. [Back]

82. Internal Rules 31, 80bis(2). [Back]

83. Decision on Co-Prosecutors' Rule 92 Submission Regarding the Admission of Witness Statements and Other Documents before the Trial Chamber, E96/7, 20 June 2012, paras 2, 26. [Back]

84. Decision on Co-Prosecutors' Rule 92 Submission Regarding the Admission of Witness Statements and Other Documents before the Trial Chamber, E96/7, 20 June 2012, para. 31; Notice to the Parties Regarding Revised Modalities of Questioning and Response to Co-Prosecutor's Request for Clarification Regarding Use of Documents during Witness Testimony (E201) (TC), E201/2, 12 June 2012, para. 1; Scheduling of Trial Management Meeting to enable planning of the remaining trial phases in Case 002/01 and implementation of further measures designed to promote trial efficiency (TC), E218, 3 August 2012, para. 7 (in the interests of accessibility, the Chamber occasionally summarised these statements in court). [Back]

85. Decision on Co-Prosecutors' Rule 92 Submission Regarding the Admission of Witness Statements and Other Documents before the Trial Chamber, E96/7, 20 June 2012, paras 21-22, 32-33; Decision on Objections to the Admissibility of Witness, Victim and Civil Party Statements and Case 001 Transcripts Proposed by the Co-Prosecutors and Civil Party Lead Co-Lawyers, E299, 15 August 2013, paras 29-30. [Back]

86. LONG Norin, Denise AFFONCO, Sydney SCHANBERG, Phillipe JULLIAN-GAUFRES and CHAU Sockon. Internal Rule 26(1) permits testimony by real-time audio or video link where it is not "seriously prejudicial to, or inconsistent with, defence rights". [Back]

87. Decision on Objections to the Admissibility of Witness, Victim and Civil Party Statements and Case 001 Transcripts Proposed by the Co-Prosecutors and Civil Party Lead Co-Lawyers, E299, 15 August 2013. [Back]

88. Decision on Objections to Documents Proposed to be Put Before the Chamber in the Co-Prosecutors' Annexes A1-A5 and to Documents Cited in Paragraphs of the Closing Order Relevant to the First Two Trial Segments of Case 002/01, E185, 9 April 2012; Decision on Objections Proposed to be Put before the Chamber in Co-Prosecutors' Annexes A6-A11 and by the Other Parties, E185/1, 3 December 2012; Third Decision on Objections to Documents Proposed for Admission Before the Trial Chamber, E185/2, 12 August 2013; Decision on Objections to the Admissibility of Witness, Victim and Civil Party Statements and Case 001 Transcripts Proposed by the Co-Prosecutors and Civil Party Lead Co-Lawyers, E299, 15 August 2013. In addition to that evidence admitted in these written decisions, parties were also permitted to tender evidence through an individual appearing live (Notice to the Parties Regarding Revised Modalities of Questioning and Response to Co-Prosecutor's Request for Clarification Regarding Use of Documents during Witness Testimony (E201) (TC), E201/2, 13 June 2012, para. 2). [Back]

89. Internal Rule 87(2). The Chamber notes that the English version of this rule requires that evidence be "subjected to examination" while the French version requires that it be "débattues contradictoirement". [Back]

90. Decision on Objections to Documents Proposed to be Put Before the Chamber in the Co-Prosecutors' Annexes A1-A5 and to Documents Cited in Paragraphs of the Closing Order Relevant to the First Two Trial Segments of Case 002/01, E185, 9 April 2012, paras 21, 30; Decision on Objections Proposed to be Put before the Chamber in Co-Prosecutors' Annexes A6-A11 and by the Other Parties, E185/1, 3 December 2012, paras 13, 19; Third Decision on Objections to Documents Proposed for Admission before the Trial Chamber, E185/2, 12 August 2013, paras 20, 24, 26; Decision on Objections to the Admissibility of Witness, Victim and Civil Party Statements and Case 001 Transcripts Proposed by the Co-Prosecutors and Civil Party Lead Co-Lawyers, E299, 15 August 2013, paras 21, 23, 26, 30, 32. [Back]

91. The Chamber takes into account whether evidence is irrelevant or repetitious, impossible to obtain within a reasonable time, unsuitable to prove the facts it purports to prove, not allowed under the law or intended to prolong proceedings (Internal Rule 87(3)). [Back]

92. See e.g. Decision on Objections to Documents Proposed to be Put Before the Chamber in the Co-Prosecutors' Annexes A1-A5 and to Documents Cited in Paragraphs of the Closing Order Relevant to the First Two Trial Segments of Case 002/01, E185, 9 April 2012, paras 30, 34 and fn. 49; Decision on Defence Requests Concerning Irregularities Alleged to Have Occurred During the Judicial Investigation (E221, E223, E224, E224/2, E234, E234/2, E241 and E241/1), E251, 7 December 2012, paras 26, 28, 36; Decision on Co-Prosecutors' Rule 92 Submission Regarding the Admission of Witness Statements and Other Documents before the Trial Chamber, E96/7, 20 June 2012, paras 17, 25-29. [Back]

93. Decision on Co-Prosecutors' Rule 92 Submission Regarding the Admission of Witness Statements and Other Documents before the Trial Chamber, E96/7, 20 June 2012, para.24; Decision on Assignment of Experts, E215, 5 July 2012, para. 15; Decision on Objections to Documents Proposed to be Put Before the Chamber in the Co-Prosecutors' Annexes A1-A5 and to Documents Cited in Paragraphs of the Closing Order Relevant to the First Two Trial Segments of Case 002/01, E185, 9 April 2012, para. 14. [Back]

94. KAING Guek Eav Judgement, para. 43; KAING Guek Eav Appeal Judgement, paras 547, 557; Decision on Co-Prosecutors' Rule 92 Submission Regarding the Admission of Witness Statements and Other Documents before the Trial Chamber, E96/7, 20 June 2012, paras 21-22, 32-33; Decision on Objections to the Admissibility of Witness, Victim and Civil Party Statements and Case 001 Transcripts Proposed by the Co-Prosecutors and Civil Party Lead Co-Lawyers, E299, 15 August 2013, paras 19, 23, 29-30. [Back]

95. Decision on the Applicability of Joint Criminal Enterprise, E100/6, 12 September 2011, para. 16; See also, Mugenzi and Mugiraneza Appeal Judgement, para. 88; Delalić et al. Appeal Judgement, para. 458. [Back]

96. T. 5 April 2011, pp. 96-97; Trial Chamber Response to Motions E67, E57, E56, E58, E23, E59, E20, E33, E71 and E73 following Trial Management Meeting of 5 April 2011 (TC), E74, 8 April 2011, p. 3; Case 001, Decision on Parties Requests to Put Certain Materials before the Chamber pursuant to Internal Rule 87(2), E176, 28 October 2009, para. 8. [Back]

97. Decision on Co-Prosecutors' Request to Establish Procedure Regarding Admission of Documents not Translated in All ECCC Languages (E223/2/6) and Lead Co-Lawyers' Response to Trial Chamber Directives on Tendering Civil Party Statements and Other Documents (E223/2/7 and E223/2/7/1) (TC), E223/2/6/1, 17 June 2013, p. 2 (The Chamber extended the deadline for the filing of evidence in all three languages from 4 March 2013 to the date on which the Closing Briefs in Case 002/01 were filed. The Chamber also determined that S-21 prisoner records were among the types of evidence that did not require translation into all three languages, a category which also included photos, diagrams, drawings and maps). [Back]

98. See e.g. Book by KHIEU S.: Cambodia's Recent History and the Reasons Behind the Decisions I Made, E3/18, p. vi, ERN (En) 00103721 (KHIEU Samphan noted that he often refers to Sideshow: Kissinger, Nixon and the Destruction of Cambodia (E3/88) by William SHAWCROSS and that he learned a "great deal" about events in the 1970s and 1980s from book by David CHANDLER, Ben KIERNAN and Michael VICKERY), pp. 10-11, ERN (En) 00103728 (Referring to excerpts from E3/88), pp. 11-12, ERN (En) 00103728-29 (Referring to excerpts from Cambodia 1975-1982 (E3/1757) by Michael VICKERY), pp. 20-21, ERN (En) 00103733 (Referring to excerpts from Brother Number One: A Political Biography of Pol Pot (E3/2816) by David CHANDLER), p. 73, ERN (En) 00103759 (Citing Brother Enemy: The War After the War (E3/2376) by Nayan CHANDA); Book by KHIEU S.: Considerations on the History of Cambodia from the Early Stage to the Period of Democratic Kampuchea, E3/3855, pp. 54-58, ERN (En) 00498275-7 (Referring to and citing Pol Pot: A History of a Nightmare (E3/9) by Philip SHORT and The Pol Pot Regime: Race, Power and Genocide in Cambodia under the Khmer Rouge (E3/1593) by Ben KIERNAN); NUON Chea's Closing Submissions in Case 002/01, E295/6/3, 26 September 2013, n. 581 (Relying on Book by W. SHAWCROSS: Sideshow: Kissinger, Nixon and the Destruction of Cambodia, E3/88, 1979). [Back]

99. KAING Guek Eav Trial Judgement, para. 58. [Back]

100. Memorandum from Chief of Court Management Section to the President of the Trial Chamber, E195/2, 15 August 2012, paras 2-3; Decision on Defence Notification of Errors in Translations (PTC), No. 2, 17 December 2010, para. 10. [Back]

101. Decision on Request by the Defence for KHIEU Samphan for Trilingual Notification of the Supreme Court Chamber's Decisions (SCC), E163/5/1/15, 30 April 2013, para. 4. [Back]

102. See e.g. Decision on KHIEU Samphan's Request for Revision of Translations of Evidence on the Case-File concerning "870" (E296), E296/1, 15 August 2013; Decision on KHIEU Samphan's Appeal against Order on Translation Rights and Obligations of the Parties (PTC), A190/I/20, 20 February 2009, paras 46-49; KHIEU Samphan Defence Motion E195 and Envisaged Future Procedures for Correction of Transcripts (TC), E195/1, 24 July 2012; Memorandum from Chief of Court Management Section to the President of the Trial Chamber, E195/2, 15 August 2012, para. 4; Review of Translation of Written Records of Witness Interview in Case File 002 (ITU), No. 3, 26 January 2011, p. 3; Decision on Defence Notification of Errors in Translations (PTC), No. 2, 17 December 2010, para. 11. [Back]

103. Case 001, Decision on Guidelines for Reclassification of Documents on the Case File (SCC), 26 July 2012, para. 6. [Back]

104. Classification and Management of Case-Related Information, Practice Direction, ECCC/004/2009/Rev.1, 7 March 2012, Articles 5-7. [Back]

105. In this regard, the Chamber is mindful of its obligation to deliver its judgement in public including the essential findings, evidence and legal reasoning (Internal Rules 102(1), 79(6)(d); ICCPR, Article 14(1); General Comment No. 32: Right to Equality before Courts and Tribunals and to a Fair Trial, Human Rights Committee, CCPR/C/GC/32, 23 August 2007, para. 29). [Back]

106. Insofar as the Chamber reclassified particular portions of a document in this judgement, the Chamber clarifies that this partial disclosure does not affect the classification pertaining to those undisclosed portions of, and information in, a document or other material as a whole. [Back]

107. T. 9 July 2013, pp. 41, 42-43; T. 17 July 2013, pp. 67-68; Withdrawal of Notice of Intent pursuant to Internal Rule 90, E287/2, 30 July 2013, paras 3-4, 18. [Back]

108. NUON Chea's Closing Submissions in Case 002/01, E295/6/3, paras 16-115; T. 22 October 2013 (NUON Chea Defence Closing Statement), pp. 2, 5-8, 21-25, 28-44, 51-52, 55-60; T. 31 October 2013 (NUON Chea), pp. 3, 29-31; T. 31 October 2013 (NUON Chea Defence Rebuttal), pp. 35-38, 41-44; [KHIEU Samphan's] Conclusions finales, E295/6/4, 26 September 2013, paras 4-8, 94-101, 109; T. 25 October 2013 (KHIEU Samphan Defence Closing Statements), pp. 2-23, 26-27, 32-40, 54; T. 31 October 2013 (KHIEU Samphan Defence Rebuttal), pp. 63-65. Allegations concerning the fairness of the proceedings also formed the basis of an interlocutory appeal by the KHIEU Samphan Defence (Urgent Request by the Defence Team of Mr. KHIEU Samphan for an Immediate Stay or Proceedings, E275/2/1/1, 1 August 2013). The Supreme Court Chamber considered that KHIEU Samphan failed to demonstrate that appellate intervention was warranted at the time the appeal was lodged, considered that the Defence could still raise the matter before the Trial or Supreme Court Chambers on appeal from the trial judgement, and declared the appeal inadmissible (Decision on Request by Defence for KHIEU Samphan for Immediate Stay of Proceedings, E275/2/1/4, 18 October 2013, paras 7-8). [Back]

109. Even if no individual error results in prejudice to the Accused, the Chamber must still assess the overall effect of harmless error to determine whether the Accused received a fair trial (Ntagerura et al., Appeal Judgement, para. 114). [Back]

110. NUON Chea's Closing Submissions in Case 002/01, E295/6/3, paras 16-26 (alleging unfairness arising from selective prosecution and the allegation that the ECCC represents the "basest form of victor's justice"), 27-37 (systematic flaws in the conduct of the judicial investigation), 45-46 (failure of the Co-Investigating Judges to summons key witnesses), 51 (failure of the Co-Investigating Judges to explore the historical context of the crimes), 71 (failure of the Co-Investigating Judges to explore the chain of custody and origins of evidence), 73-77 (the investigatory practices during the judicial investigation were flawed), 80-81 (the Co-Investigating Judges were biased and subject to government interference); T. 22 October 2013 (NUON Chea Defence Closing Statement), pp. 6-8, 28-37, 45-47, 49-51, 55-60; T. 31 October 2013 (NUON Chea Defence Rebuttal), p. 44; T. 31 October 2013 (KHIEU Samphan Defence Rebuttal), pp. 63-64. [Back]

111. See e.g. Decision on IENG Sary's Motion for a Hearing on the Conduct of the Judicial Investigations, E71/1, 8 April 2011 (The Chamber dismissed the Defence motion finding that no specific matter or alleged procedural defect was raised and that no specific relief was requested. The Chamber referred to Internal Rule 76(7) which states "Subject to any appeal, the Closing Order shall cure any procedural defects in the judicial investigation. No issues concerning such procedural defects may be raised before the Trial Chamber or the Supreme Court Chamber"); Decision on NUON Chea Motions regarding Fairness of Judicial Investigation (E51/3, E82, E88 and E92), E116, 9 September 2011; Decision on NUON Chea's Request for a Rule 35 Investigation regarding Inconsistencies in the Audio and Written Records of OCIJ Witness Interviews, E142/3, 13 March 2012 (discrepancies between audio and written records are a matter which is relevant to the final assessment of evidence); Decision on Defence Requests Concerning Irregularities Alleged to Have Occurred During the Judicial Investigation (E221, E223, E224, E224/2, E234, E234/2, E241 and E241/1), E251, 7 December 2012; Decision on Rule 35 Applications for Summary Action, E176/2, 11 May 2012; Decision on Application for Immediate Action Pursuant to Rule 35, E189/3, 22 November 2012. NUON Chea argues that the Chamber's decisions concerning political interference were "systematically weak and evasive" (NUON Chea's Closing Submissions in Case 002/01, E295/6/3, 26 September 2013, para. 89). Beyond this general assertion, he fails to either identify those decisions he believes to be deficient or substantiate this argument. The Chamber is therefore unable to assess this submission and summarily dismisses it. [Back]

112. Decision on Immediate Appeal by NUON Chea against the Trial Chamber's Decision on Fairness of the Investigation (SCC), E116/1/7, 27 April 2012; Decision on NUON Chea's "Immediate Appeal against Trial Chamber Decision on Application for Immediate Action pursuant to Rule 35" (SCC), E189/3/1/8, 25 March 2013; Decision on NUON Chea's Appeal against the Trial Chamber's Decision on Rule 35 Applications for Summary Action (SCC), E176/2/1/4, 14 September 2012. [Back]

113. Decision on NUON Chea Request for a Rule 35 Investigation regarding Inconsistencies in the Audio and Written Records of OCIJ Witness Interviews, E142/3, 13 March 2012, paras 6-15. [Back]

114. NUON Chea's Closing Submissions in Case 002/01, E295/6/3, 26 September 2013, paras 23-26, 58, 80-86; T. 22 October 2013 (NUON Chea Defence Closing Statement), pp. 6-8, 28-31, 49-52. [Back]

115. Decision on IENG Sary's Application to Disqualify Judge NIL Nonn and Related Requests, E5/3, 28 January 2011; Decision on IENG Thirith, NUON Chea and IENG Sary's Applications for Disqualification of Judges NIL Nonn, Silvia CARTWRIGHT, YA Sokhan, Jean-Marc LAVERGNE and THOU Mony, E55/4, 23 March 2011. [Back]

116. Application for Summary Action against HUN Sen pursuant to Rule 35, E176, 22 February 2012, paras 17-23; Rule 35 Request Calling for Summary Action against Minister of Foreign Affairs HOR Namhong, E219, 13 August 2012, paras 12-22. [Back]

117. Decision on NUON Chea's Appeal against the Trial Chamber's Decision on Rule 35 Applications for Summary Action (SCC), E176/2/1/4, 14 September 2012; Decision on Rule 35 Applications for Summary Action, E176/2, 11 May 2012. [Back]

118. Some of these issues were revisited by the Defence at the close of the hearing (NUON Chea's Closing Submissions in Case 002/01, E295/6/3, 26 September 2013, paras 63-67, 87-88 (concerning the allegedly ultra vires procedure for filing initial lists of evidence); T. 31 October 2013 (NUON Chea), pp. 3, 29-30 (equality of arms); Urgent Request by the Defence Team of Mr. KHIEU Samphan for an Immediate Stay or Proceedings, E275/2/1/1, 1 August 2013, paras 76, 93-94 (concerning translations of evidence and filings)). [Back]

119. See e.g. Order to File Material in Preparation for Trial (TC), E9, 17 January 2011; Notification of the Trial Chamber's Disposition of Request for Extension of Deadlines (E9/6) (TC), E9/6/1, 14 February 2011; Decision on Requests for Extension of Time to File Lists of Documents and Exhibits, E9/16/4, 29 March 2011; Response to IENG Sary Defence Request for Access to Strictly Confidential Documents on the Case File (E118) (TC), E118/4, 28 November 2011; Reclassification of Additional Documents on the Case File, E118/5 (TC), 12 January 2012; Notification of Strictly Confidential Documents related to the Health of the Accused (TC), E118/6, 19 January 2012; Reclassification of Additional Documents on the Case File (TC), E118/7, 30 August 2013; Decision on NUON Chea's Preliminary Objection alleging the Unconstitutional Character of the ECCC Internal Rules, E51/14, 8 August 2011; Decision Concerning New Documents and Other Related Issues, E190, 30 April 2012; Decision on KHIEU Samphan Request for Declaration of Inadmissibility of the Co-Prosecutors' Closing Brief (E295/7), E295/7/2, 14 October 2013, para. 6. [Back]

120. Decision on Objections to the Admissibility of Witness, Victim and Civil Party Statements and Case 001 Transcripts Proposed by the Co-Prosecutors and Civil Party Lead Co-Lawyers, E299, 15 August 2013, para. 21 ("the role the Co-Prosecutors played in the Preliminary Investigation and other case does not impact the equality of arms so long as all parties have procedural equality in presenting their case"). [Back]

121. NUON Chea's Closing Submissions in Case 002/01, E295/6/3, 26 September 2013, paras 93-101; T. 31 October 2013 (NUON Chea Defence Rebuttal), pp. 35-38; [KHIEU Samphan's] Conclusions finales, E295/6/4, 26 September 2013, paras 4-8, 94-101, 109; T. 25 October 2013 (KHIEU Samphan Defence Closing Statement), pp. 2-23, 26-27, 30-32, 35-40; T. 31 October 2013 (KHIEU Samphan Defence Rebuttal), pp. 63, 65-66; Submissions by Mr. KHIEU Samphan's Defence regarding the Questioning of the Accused, E288/4, 5 July 2013, paras 8, 30; Urgent Request for Clarification of the Trial Chamber Decision of 15 August 2013 concerning Objections to the Admissibility of Written Statements and Deferral of the Timeline for Filing Final Briefs, E299/1, 2 September 2013, paras 3336; Urgent Request by the Defence Team of Mr. KHIEU Samphan for an Immediate Stay of Proceedings, E275/2/1/1, 1 August 2013, paras 20-68; Immediate Appeal against Second Severance Order and Response to Co-Prosecutors' Appeal against Same, E284/4/1, 27 May 2013, paras 12, 33; Indications of Witnesses and Documents Germane to the Initial Phases of the First Trial, E131/1/6, 2 November 2011, para. 16; Request for Additional Witnesses & Continuation of Initial Hearing, E93/9, 5 July 2011, paras 2-11. [Back]

122. T. 5 April 2011 (Trial Management Meeting), pp. 56-57; See also, Directive in Advance of Initial Hearing concerning Proposed Witnesses (TC), E93, 3 June 2011, p. 2; T. 27 June 2011 (Initial Hearing), pp. 7-8. [Back]

123. Directive in Advance of Initial Hearing concerning Proposed Witnesses (TC), E93, 3 June 2011, p. 2. [Back]

124. See e.g. Decision on Objections to Documents Proposed to be Put Before the Chamber in the Co-Prosecutors' Annexes A1-A5 and to Documents Cited in Paragraphs of the Closing Order Relevant to the First Two Trial Segments of Case 002/01, E185, 9 April 2012, para. 29; Third Decision on Objections to Documents Proposed for Admission before the Trial Chamber, E185/2, 12 August 2013, paras 23-24; Decision on Objections to the Admissibility of Witness, Victim and Civil Party Statements and Case 001 Transcripts Proposed by the Co-Prosecutors and Civil Party Lead Co-Lawyers, E299, 15 August 2013, para. 20; Decision on Severance of Case 002 following Supreme Court Chamber Decision of 8 February 2013, E284, 26 April 2013, para. 117. [Back]

125. Severance Order Pursuant to Internal Rule 89ter, E124, 22 September 2011, paras 5-6. [Back]

126. Decision on Co-Prosecutor's Request for Reconsideration of the Terms of the Trial Chamber's Severance Order (E124/2) and Related Motions and Annexes, E124/7, 18 October 2011, para. 11; See also, Response to Issues Raised by Parties in Advance of Trial and Scheduling of Informal Meeting with Senior Legal Officer on 18 November 2011 (TC), E141, 17 November 2011, p. 2. [Back]

127. Decision on Co-Prosecutor's Request for Reconsideration of the Terms of the Trial Chamber's Severance Order (E124/2) and Related Motions and Annexes, E124/7, 18 October 2011; <