SEVEN CANDIDATES FOR PROSECUTION: ACCOUNTABILITY FOR THE CRIMES OF THE KHMER ROUGE by Stephen Heder with Brian D. Tittemore War Crimes Research Office, Washington College of Law, American University and Coalition for International Justice Copyright @ June 2001 by War Crimes Research Office, American University All rights reserved. Printed in the United States. Seven Candidates for Prosecution: 2 Accountability for the Crimes of the Khmer Rouge ACKNOWLEDGEMENTS Stephen Heder is the principal author of this report. Dr. Heder, a political scientist with the University of London’s School of Oriental and African Studies, is a leading scholar on Cambodia. He has authored numerous articles and monographs on Cambodian history, and is fluent in the Khmer language. During several visits to Cambodia in 1998-2001, Dr. Heder examined newly-available DK-era documents gathered by the Documentation Center of Cambodia. This report sets forth the principal conclusions derived from Dr. Heder’s analysis of those documents. Dr. Heder is also responsible for English translations of material from these documents that is quoted in this report. Brian Tittemore prepared the legal evaluation of the evidentiary material analyzed by Dr. Heder and is the principal co-editor of this report. Mr. Tittemore, a Staff Attorney with the Inter-American Commission on Human Rights,* has previously served as Senior Research Associate and Acting Executive Director of the War Crimes Research Office (WCRO) of the Washington College of Law, American University, in Washington, D.C. Diane F. Orentlicher, Professor of Law and Faculty Director of the WCRO, was co-editor of the report. Professor Orentlicher is currently a visiting scholar in Princeton University’s Program in Law and Public Affairs. Extensive editorial contributions were also provided by Floyd Abrams, a leading U.S. constitutional lawyer; Dr. Kelly D. Askin, Acting Executive Director of the WCRO; and Nina Bang-Jensen, Executive Director and General Counsel of the Washington, D.C.-based Coalition for International Justice (CIJ). This report is jointly published by the WCRO and CIJ. The WCRO, whose Executive Director is John Cerone, was established by the Washington College of Law in 1995 to provide specialized international humanitarian law research to the Office of the Prosecutor for the UN International Criminal Tribunals for the Former Yugoslavia and Rwanda. The WCRO has since expanded its operations to provide support on a selective basis to other projects that make a significant contribution to the development and enforcement of international humanitarian law. The project operates with the joint support of the Open Society Institute, the Ford Foundation and the Washington College of Law. CIJ, whose Executive Director is Nina Bang-Jensen, is an international, non-profit organization working to support the international criminal tribunals for the former Yugoslavia and Rwanda and other international humanitarian law initiatives through advocacy, fundraising, collaboration with other non-governmental organizations, and technical legal assistance. We are grateful to numerous individuals and organizations whose contributions have made this project possible. We wish in particular to express our appreciation to Youk Chhang, Director of the Documentation Center of Cambodia, and other Center staff, who spared no effort in making enormous volumes of documents available, copying them for use in this project, and generally facilitating Stephen Heder's research at the Center. Their assistance was indispensable to this project. We are also grateful to David Marcus for providing invaluable legal research, editing and drafting assistance while serving as an intern at the CIJ and after his return to Yale Law School; CIJ intern Edgar Chen for his insightful editorial contributions; Cecile Meijer, Legal Coordinator of the WCRO, for timely research assistance; and to Prof. M. Gregg Bloche of Georgetown Law Center and James Ross of Human Rights Watch for invaluable comments on earlier drafts. Finally, we are grateful for the financial support of the Open Society Institute, which enabled us to undertake this study, and to its President, Aryeh Neier, for his support and encouragement. * Any opinions attributable to Mr. Tittemore in this report are not given in his capacity as an official of the Inter-American Commission on Human Rights or the Organization of American States and do not necessarily reflect the views of those institutions. War Crimes Research Office/Coalition for International Justice June 2001 Seven Candidates for Prosecution: 3 Accountability for the Crimes of the Khmer Rouge TABLE OF CONTENTS Executive Summary ……………………………………………………………………………….. 5 I. Introduction …………………………………………………………………………………………. 7 II. Recent Initiatives to Prosecute CPK Crimes …………………………………………………… 13 III. The Means and Methods of CPK Crimes ………………………………………………………. 26 A. CPK Policies of Mass Executions ……………………………………………………… 26 1. Purges of Individuals Associated with the Former Khmer Republic ……… 30 2. Purges of Non-Communist Members of the DK Population ……………….. 32 3. Purges of CPK Cadre …………………………………………………………... 34 B. CPK Command and Control Structures ………………………………………………. 41 IV. The Cases Against Seven Individuals …………………………………………………………… 49 A. Summary of Findings ……………………………………………………………………. 49 B. The Cases Against the Individual Officials ……………………………………………. 51 1. Nuon Chea ……………………………………………………………………… 51 a. Evidentiary Analysis …………………………………………………. 51 i. Position and Role in the CPK ……………………………… 51 ii. Confessions …………………………………………………. 53 iii. Reports from the Grassroots ………………………………. 55 b. Legal Analysis and Conclusions ……………………………………. 59 i. Individual Responsibility ……………………………………. 59 ii. Superior Responsibility …………………………………….. 62 2. Ieng Sary ……………………………………………………………………….. 63 a. Evidentiary Analysis …………………………………………………. 63 i. Position and Role in the CPK ……………………………… 63 ii. Speeches and Statements by Ieng Sary or his Office …………………………………………………………. 63 iii. Confessions …………………………………………………. 68 v. Reports from the Grassroots ………………………………. 72 b. Legal Analysis and Conclusions ……………………………………. 75 3. Khieu Samphan ………………………………………………………………… 77 a. Evidentiary Analysis ………………………………………………….. 77 War Crimes Research Office/Coalition for International Justice June 2001 Seven Candidates for Prosecution: 4 Accountability for the Crimes of the Khmer Rouge b. Legal Analysis and Conclusions …………………………………… 81 4. Ta Mok ………………………………………………………………………….. 83 a. Evidentiary Analysis …………………………………………………. 83 i. Position and Role in the CPK ……………………………... 83 ii. Post-DK Statements by Ta Mok and other Officials ………………………………………………………. 83 iii. Confessions …………………………………………………. 85 b. Legal Analysis and Conclusions ……………………………………. 87 i. Individual Responsibility ……………………………………. 87 ii. Superior Responsibility ……………………………………. 88 5. Kae Pok …………………………………………………………………………. 89 a. Evidentiary Analysis ………………………………………………….. 90 i. Position and Role in the CPK ……………………………… 90 ii. Confessions …………………………………………………. 91 iii. Reports from the Grassroots ………………………………. 92 b. Legal Analysis and Conclusions ……………………………………. 93 i. Individual Responsibility ……………………………………. 93 ii. Superior Responsibility …………………………………….. 94 6. Sou Met and Meah Mut ………………………………………………………. 95 a. Evidentiary Analysis ………………………………………………… 95 i. Positions and Roles in the CPK ………………………….. 95 ii. Minutes of General Staff Meetings ………………………. 95 iii. Reports and other Documents from Sou Met and Meah Mut …………………………………… 105 b. Legal Analysis and Conclusions …………………………………… 106 i. Individual Responsibility …………………………………… 106 ii. Superior Responsibility ……………………………………. 107 V. Conclusion ………………………………………………………………………………………… 109 Appendix - Individual Criminal Responsibility …………………………………………………………… 110 War Crimes Research Office/Coalition for International Justice June 2001 Seven Candidates for Prosecution: 5 Accountability for the Crimes of the Khmer Rouge Executive Summary Using newly-available archival evidence, this report examines the responsibility of seven senior officials for their roles in developing and implementing the murderous policies of the Communist Party of Kampuchea (CPK), known to its enemies as the “Khmer Rouge,” during the mid- to late-1970s. While extensive work has been done in the past to document and analyze evidence of CPK crimes generally, this is the first comprehensive legal analysis of available evidence against specific individuals for international crimes. Through this analysis, the report also sheds new light on how the CPK designed and implemented policies of mass execution. Previously-unpublished evidence concerning the planning and conduct of the CPK’s execution policies confirm that these policies were devised at the highest levels of the Communist Party and were implemented through a coordinated chain of command. The policies targeted members of three groups: • individuals associated with the former Khmer Republic regime; • non-Communist members of the Cambodian population; and • Party members, or “cadre,” within the CPK suspected of being traitors. In the case of CPK cadre, the policies were generally carried out through a system of arrests, interrogations, and subsequent executions, with some interrogations conducted through torture; former Khmer Republic officials and non-Communists were generally executed without any prior interrogation. Our examination of the archival evidence suggests that there is a prima facie case that the seven individuals examined in this report are criminally responsible