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Before the Trial Chamber Extraordinary Chambers in the Courts of Cambodia

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Before the Trial Chamber Extraordinary Chambers in the Courts of Cambodia 00948768 E295/6/2 BEFORE THE TRIAL CHAMBER EXTRAORDINARY CHAMBERS IN THE COURTS OF CAMBODIA Filing details File No.: 002/19-09-2007-ECCC/TC ORIGINAL/ORIGINAL Party Filing: Civil Party Lead Co-Lawyers • • • 06-Nov-2013 15'53 19 18 !Jl (Date): ........................ : ...... : .... CMS/CFO: ...........~.~!:I.!:I .. ~~~.~ ......... Before: Trial Chamber Original language: English translation Khmer Date of document: 26 September 20 l3 CLASSIFICATION Classification of document suggested by the filing party: Confidential Classification by the Co-Investigating Judges or the Chamber: MalZn.n:/Public Classification Status: Review of interim Classification: Records Officer Name: Signature: CIVIL PARTIES CLOSING BRIEF TO CASE 002/01 WITH CONFIDENTIAL ANNEXES 1-4 Filed by: Before: Lead Co-Lawyers for Civil Parties Trial Chamber PICHAng Judge NIL Nonn, President Elisabeth SIMONNEAU-FORT Judge Silvia CARTWRIGHT Judge YA Sakhan Judge Jean-Marc LAVERGNE Co-Lawyers for Civil Parties Judge YOU Ottara CHETVanly HONG Kim Suon Distribution to: KIM Mengkhy Office of the Co-Prosecutors KONG Phallack LORChunthy CHEALeang 00948769 E295/6/2 002/19-09-2007 -ECCC/TC MOCH Sovannary YET Chakriya SINSowom William SMITH KONG Pisey YUNG Phanith SAMSokong The Accused VENPov TYSrinna KHlEU Samphan Ernrnanuel~TIT NUONChea Olivier BAHOUGNE Patrick BAUDOIN Evelyne BOILEAU-BRANDOMIR Co-Lawyers for the Defence Philippe CANONNE SONArun Annie DELAHAIE Victor KOPPE Laure DESFORGES Ferdinand DJAMMEN NZEPA KONGSamOnn Elodie DULAC AntaGUISSE Nicole DUMAS Arthur VERCKEN Isabelle DURAND Franc;oise GAUTRY Marie GUIRAUD Co-Lawyers for the Civil Parties Ernrnanuel JACOMY Pascal AUBOIN Martine JACQUIN Beini YE Daniel LOSQ Christine MARTINEAU Mahdev MOHAN Bamabe NEKUIE LymaNGUYEN Elisabeth RABESANDRATANA Julien RIVET Fabienne TRUSSES NAPROUS Nushin SARKARATI Jeanne SULZER Philippine SUTZ Civil Parties Closing Brie/to Case 002101 Page 2 of186 00948770 E295/6/2 002/19-09-2007 -ECCC/TC PART I: INTRODUCTION A. GENERAL INTRODUCTION & OVERVIEW l. The leaders of the Communist Party of Kampuchea (CPK) headed a joint criminal enterprise designed to impose their vision of a utopian agricultural social order in Cambodia with record speed and remarkable disregard for the consequences such a plan would have on the populace. The unforgiving application of draconian policies intended to push "the extremely marvelous, extremely wonderful, prodigious leap forward"l in Cambodian history came at the price of massive death tolls and profound human suffering. In the rush to protect and bring to fruition the CPK's massive work of social engineering, the entire population of Cambodia was forced out of their homes and into the fields to serve the revolution. 2. Initiated with the forced removal of the cities' inhabitants and the elimination of those individuals thought to pose the greatest threat to the revolution, a process of unending toil and distribution and redistribution of the populace to new locations became the hallmarks of life under the CPK. In the instant brief, the Civil Parties provide detailed evidence in support of their assertion that Nuon Chea and Khieu Samphan, as leaders of this revolution, are responsible for the crimes alleged in Case 002/01. 3. On the basis of the evidence and the arguments developed herein, the Civil Parties will demonstrate that the accused, Nuon Chea and Khieu Samphan, are guilty of the crimes against humanity of: 1) extermination; 2) murder; 3) political persecution; 4) other inhumane acts: forced transfer, 5) enforced disappearances, and 6) attacks against human dignity as co-perpetrators and participants in the joint criminal enterprise to implement a rapid socialist revolution in Cambodia through a "great leap forward" and to defend this revolution and the Party's line by whatever means necessary. 4. The Civil Parties' arguments and demonstration on these points are organized into three main parts. Part I presents a general overview, followed by discussion of the historic role civil parties have played in these proceedings and, finally, arguments concerning the probative value of civil party evidence. Part II is a discussion of the factual elements of the joint criminal enterprise (JCE), including demonstration of the common plan and each of the five policies which comprise the JCE. Part III is a detailed discussion of the factual evidence on forced transfers and the executions of Khmer Republic affiliates at Tuol Po Chrey, including elements on the consequences of these events on their victims. Part IV details the legal characterization of the facts sought by Civil Parties. And, Part V is Civil Parties Closing Brie/to Case 002101 Page 3 of186 00948771 E295/6/2 002119-09-2007 -ECCCITC comprised of the Civil Parties' conclusions and requests to the Trial Chamber. In consideration of their role in support of the Office of the Co-Prosecutor's and the constraints on the length of their closing brief, the Civil Parties do not discuss the early trial phases, including historical background, and administrative and communication structures. 5. Throughout their closing brief, the Civil Parties have sought to highlight the extensive and highly probative evidence that civil parties contribute on the policies and crimes alleged in Case 002/01. Where possible, civil parties offering evidence on a given point are quoted in the body of the text and additional evidence, including corroborating civil party evidence, related oral testimony of witnesses and experts, and documentary evidence are extensively cited in the endnotes. As this brief will demonstrate, in many points, civil parties are uniquely positioned to provide essential evidence on the criminal allegations against the accused. B. ROLE OF THE CIVIL PARTIES 6. The participation of victims as civil parties is one of the most innovative and acclaimed aspects of the proceedings before the ECCe. 2 Proceedings in Case 002/01 have confirmed the decisive role played by civil parties at all stages of the proceedings and, notably, during the trial phase. This role will necessarily need to be acknowledged in the judgment. First, the ECCC is the only internationalized tribunal based on the civil law system which recognizes civil parties as full-rights parties. Unlike other internationalized criminal tribunals, where the participation of victims in the proceedings has been significantly limited or subject to the discretion of the judges, at the ECCC, the Civil Parties exercise the rights of a party to the trial, with equal standing to the Prosecution and the Defense. 3 At all stages of the proceedings, the Civil Parties have repeatedly claimed and demonstrated that they intended to exercise these rights fully-and they have done so. Through their legal representatives, the civil parties have, inter alia, requested investigations, proposed witnesses to be heard, submitted lists of documents, filed submissions on all aspects of the proceedings and examined witnesses and experts, thereby making a unique contribution in the field of international justice. 7. Second, as the proceedings in Case 002/01 have made clear, the evidence brought by the Civil Parties during trial was not only relevant, but essential to the ascertainment of the truth in these proceedings. A total of 574 civil party documents, including victim information forms, supplementary statements and annexes, have been submitted by the Civil Parties Closing Brie/to Case 002101 Page 4 of186 00948772 E295/6/2 002/19-09-2007 -ECCC/TC Civil Parties in the course of the trial and admitted into evidence by the Chamber. In addition, the Civil Parties have submitted themselves to examination before the Chamber and on these occasions, have provided detailed, vivid and often startling testimonies on the crimes committed in Democratic Kampuchea and their impact on the population. 4 8. Through these written and oral testimonies, the Civil Parties have provided an overwhelming quantity of corroborative first-hand evidence on the existence of all five policies put in place by the CPK and the implementation of the policy leading to the forced transfers of the population. The Civil Parties have also raised a number of matters which might have otherwise been overlooked in the trial, but are essential to a proper understanding of the context and extent of the crimes committed during the period. 5 This evidence establishes a common pattern of crimes occurring throughout Democratic Kampuchea between 1975 and 1979, or in other words, a "non-accidental repetition of similar criminal conduct on a regular basis,,,6 which affirms the widespread and systematic nature of the attacks suffered by the population. 7 In addition, Civil Parties have given testimonies on the impact of the crimes on the population and their own prejudice as a result of these crimes, thereby attesting to the extent of the crimes committed and bringing to the trial a human dimension which otherwise would have been absent from the proceedings. 8 9. Third, the role of the Civil Parties in this trial takes on a special significance in light of the historical context, the objective of national reconciliation set out in the Court's founding instruments and the expectations of the victims and the Cambodian population at large. Over the past thirty years and until they filed their civil party applications, many of the civil parties in this case had never recounted their stories to anyone. It took an impressive degree of courage and determination to apply as civil parties, recall distressing memories and put them into words and, for a number of civil parties, to face the strain and sometimes the risk of testifying before the Chamber. As Judge Lavergne put it in the context of the present proceedings: "It is obvious that for the thousands of persons granted civil party status, these rights take on a special significance, bearing in mind not only the seriousness of the charges against the accused, but also the civil parties' very long wait for justice, a wait which makes these trials historic.,,9 10. For these reasons alone, the civil parties expect that their historical and decisive role will be fully acknowledged in the judgment and that, after thirty years, their right to justice and reparation will finally be realized.
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