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Co-Prosecutors v Kaing (Guek Eav) alias 'Duch', Appeal judgment, Case No 001/18-07-2007/ECCC/SC, Doc No F28, Doc No F26/3 (Summary), ICL 1550 (ECC 2012), 3rd February 2012, Extraordinary Chambers in the Courts of Cambodia [ECCC]; Supreme Court Chamber [ECCC]

Co-Prosecutors v Kaing (Guek Eav) alias 'Duch', Appeal judgment, Case No 001/18-07-2007/ECCC/SC, Doc No F28, Doc No F26/3 (Summary), ICL 1550 (ECC 2012), 3rd February 2012, Extraordinary Chambers in the Courts of Cambodia [ECCC]; Supreme Court Chamber [ECCC]

Parties:
Chea Leang, Andrew Cayley
Kaing Guek Eav
Additional parties:
(Partie Civile) Lawyers for Civil Parties Group 1, Lawyers for Civil Parties Group 2, Lawyers for Civil Parties Group 3
Judges/Arbitrators:
Kong Srim (President); Motoo Noguchi; Som Sereyvuth; Agnieszka Klonowiecka-Milart; Sin Rith; Chandra Nihal Jayasinghe; Ya Narin
Procedural Stage:
Appeal judgment
Previous Procedural Stage(s):
Prosecutor v Duch, Prosecutor v Kaing, Judgment, Case no 001/18-07-2007/ECCC/TC; Doc No E188; ICL 810 (ECC 2010), 26 July 2010
Subject(s):
Torture — Appeals — International courts and tribunals, jurisdiction — Enslavement and forced labour — Persecution — Appeals Chamber — International criminal law, victims — Cumulative convictions — Reparations — Customary international law
Core Issue(s):
Whether an accused fell within the personal jurisdiction of an international Chamber.
Whether a Trial Chamber had given sufficient weight to the severity of the crimes committed and to aggravating circumstances.
Whether cumulative convictions should have been entered for different counts of crimes against humanity.
Whether a Trial Chamber erred in refusing to admit several Civil Party applicants.
Whether additional reparations should be awarded to Civil Party applicants.

Oxford Reports on International Criminal Law is edited by:

Professor William Schabas, Middlesex University London

Professor Göran Sluiter, University of Amsterdam

Facts

F1  Guek Eav Kaing alias Duch (‘Duch’) was Deputy-Chairman, then Chairman, of the S-21 security centre in Phnom Penh between August 1975 and January 1979.

F3  The hearings before the Trial Chamber took place between February and September 2009. Ninety victims were joined as civil parties and were represented by lawyers, forming four civil party groups.

F4  The Trial Chamber delivered its judgment on 26 July 2010—Prosecutor v Duch, Prosecutor v Kaing, Judgment, Case no 001/18-07-2007/ECCC/TC; Doc No E188; ICL 810 (ECC 2010), 26 July 2010 (‘Trial judgment’). It found that Duch had managed and refined a system in the S-21 security centre over the course of more than three years that resulted in the execution of 12,272 victims, most of whom were also systematically tortured.

F5  Duch was sentenced to 35 years of imprisonment based on convictions for the crime against humanity of persecution—subsuming the crimes against humanity of extermination (encompassing murder), enslavement, imprisonment, torture (including one instance of rape), and other inhumane acts—, as well as for grave breaches of the Geneva Conventions—wilful killing, torture, and inhumane treatment, wilfully causing great suffering or serious injury to body or health, wilfully depriving a prisoner of war or civilian of the rights of fair and regular trial, and unlawful confinement of a civilian. The Trial Chamber decided that a reduction in the sentence of five years was appropriate given the violation of Duch’s rights occasioned by his illegal detention by the Cambodian Military Court between 10 May 1999 and 30 July 2007. The Trial Chamber also found that Duch was entitled to credit for the entirety of his time spent in detention, from 10 May 1999 to 30 July 2007—under the authority of the Cambodian Military Court—and from 31 July 2007 until the date of issuance of the Appeal judgment.

F6  The Trial Chamber granted two reparations to the Civil Parties. It declared judgment that all admitted Civil Parties had suffered harm as a direct consequence of the crimes for which Duch was convicted and agreed to compile all statements of apology and acknowledgements of responsibility made by Duch during the course of the trial and to post this compilation on the ECCC’s official website.

F7  The Co-Prosecutors, Defence, and Civil Parties Groups 1, 2, and 3 appealed to the Supreme Court Chamber against the Trial judgment.

F8  The Co-Prosecutors claimed that the Trial judgment did not give sufficient weight to the severity of the crimes committed and to aggravating circumstances, while giving undue weight to mitigating circumstances (‘Ground 1 of the Co-Prosecutors’ appeal’). They further submitted that Duch should have been cumulatively convicted for the crimes against humanity of prosecution, enslavement, imprisonment, torture, rape, extermination, and other inhumane acts as well as the enslavement of those detainees in S-21 and that the Trial Chamber had erred as a matter of law when it characterized an instance of rape as torture as a crime against humanity, without convicting Duch for the distinct crime against humanity of rape (‘Grounds 2 and 3 of the Co-Prosecutors’ appeal’).

F9  The Defence claimed Duch should be acquitted because he did not fit into the category of the persons under the jurisdiction of the ECCC (‘Ground 1 of the Defence appeal’); and that sentencing should take into consideration the legal provisions on sentence set in the Criminal Code, 2009 (Cambodia) (‘Ground 2 of the Defence appeal’).

F10  Those Civil Parties whose applications had been rejected by the Trial Chamber sought admission on appeal. The Civil Parties further sought additional reparations which had previously been rejected by the Trial Chamber.

F11  Civil Parties Groups 1, 2, and 3 submitted that the Trial Chamber committed an error of law by applying a test for the admission of civil parties that was too strict and not provided for in the Internal Rules of the Extraordinary Chambers in the Courts of Cambodia, Rev 3, Extraordinary Chambers in the Courts of Cambodia, revised 6 March 2009 (‘Internal Rules’) whereby civil party applicants who were not immediate family members of deceased direct victims of the crimes charged had to demonstrate both the alleged kinship to a direct victim and circumstances giving rise to a ‘special bond of affection’ with or dependency on the direct victim.

F12  The Appeal hearing was held in March 2011.

Held

H1  According to Article 9 of 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 (10 August 2001) NS/RKM/0801/12, entered into force 10 August 2001, amended 27 October 2004 (‘ECCC Law’), ECCC trial judgments were reviewed at one instance only, namely by the Supreme Court Chamber. This sui generis appellate system allowed the judges to seek guidance in procedural rules established at the international level, and especially in jurisprudence of the International Criminal Tribunal for the former Yugoslavia (‘ICTY’) and the International Criminal Tribunal for Rwanda (‘ICTR’). According to Rule 104(1) of the Internal Rules, grounds for appeal included errors on a question of law invalidating the judgment and errors of fact which occasioned a miscarriage of justice. (paragraphs 11-13) Although the Chamber’s appellate powers were bound to the limits of the issues appealed, the burden of proof on appeal was not absolute with regard to errors of law. Only exceptionally, however, could the Chamber raise questions ex proprio motu or hear appeals where a party raised a legal issue that would not lead to the invalidation of the judgment but was nevertheless of general significance to the ECCC’s jurisprudence. (paragraph 15) An error of law could only lead to an amendment of the Trial Chamber’s judgment on appeal where it invalidated the judgment. (paragraph 16) Where errors of fact were alleged, the appellate judges had to apply the standard of reasonableness. (paragraph 17) Only where the error of fact occasioned a miscarriage of justice could the Supreme Court Chamber overturn the Trial Chamber’s judgment. (paragraph 19) Generally, arguments raised on appeal which were considered irrelevant to the appeal or evidently unfounded could be immediately dismissed by the Supreme Court Chamber. (paragraph 20)

H2  Regarding Ground 1 of the Defence appeal, the term ‘senior leaders of Democratic Kampuchea and those who were most responsible’ referred to two categories of Khmer Rouge officials which were not dichotomous and both categories were ‘suspects’ subject to criminal prosecution before the ECCC. (paragraphs 45-57) Whether an accused had been a Khmer Rouge official was a justiciable issue before the Trial Chamber, (paragraph 61) but the terms ‘most responsible’ (paragraphs 62-74) and ‘senior leaders’ (paragraphs 75-78) were not jurisdictional requirements of the ECCC. Both operated exclusively as investigatorial and prosecutorial policy. Because the Co-Investigating Judges and Co-Prosecutors were exclusively responsible for the classification of an accused under those terms, in the absence of bad faith, or a showing of unsound professional judgment, the Trial Chamber had no power to review the alleged abuse of the Co-Investigating Judges’ or Co-Prosecutors’ discretion regarding the scope of investigations and prosecutions. The Defence’s appeal on personal jurisdiction was rejected in full. (paragraphs 80-81)

H3  Regarding Grounds 2 and 3 of the Co-Prosecutors appeal, as already found by the Trial Chamber, crimes against humanity had been established as an international crime during the ECCC’s temporal jurisdiction. (paragraphs 98-104) The general definition of crimes against humanity found in the Principles of International Law Recognised in the Charter of the Nürnberg Tribunal and in the Judgment of the Tribunal, UN Doc A/1316, International Law Commission, entered into force 29 July 1950 reflected the state of customary international law at the time. (paragraphs 105-116)

H4  The definition of enslavement as a crime against humanity existed under customary international law from 1975-1979. Enslavement was: (1) the exercise over persons of the powers that attached to the right of ownership—actus reus—; and (2) intention to accrue some gain through the exercise over persons of the powers that attached to the right of ownership—mens rea. (paragraphs 124-158) This definition had been both foreseeable and accessible to Duch. (paragraphs 159-162) As there was no evidence of an intention by Duch to accrue some gain from the totality of S-21 detainees or of otherwise treating them as a commodity, (paragraphs 163-166) this part of the Co-Prosecutors appeal was rejected. (paragraph 167)

H5  During the ECCC’s temporal jurisdiction, rape had not been a distinct crime against humanity. The Trial Chamber had erred in concluding that the incident that had occurred at S-21 constituted rape as a crime against humanity. Accordingly, this part of the Co-Prosecutors’ appeal failed automatically. (paragraphs 174-183) The definition of torture found in the Declaration on the Protection of All Persons from being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, UN Doc A/RES/3452(XXX), Annex, United Nations General Assembly, adopted 9 December 1975 was declaratory of customary international law from 1975-1979. (paragraphs 184-205) With regards to the actus reus of torture, ‘[c]ertain acts are considered by their nature to constitute severe pain and suffering. These acts include rape’. (paragraph 207) The Trial Chamber did not err in subsuming an act of rape into the definition of torture as a crime against humanity. (paragraphs 208-210) At the time of Duch’s criminal conduct, it had been clear that torture constituted a grave violation of an individual’s fundamental human rights. The widespread recognition by the community of states of the gravity of torture demonstrated the foreseeability of criminal prosecution for such conduct as a crime against humanity. (paragraphs 211-212)

H6  Persecution had been a recognized crime against humanity under international law since 1975. (paragraph 225) The Trial Chamber had been right in finding that the mens rea requirement was the ‘deliberate’ perpetration of an act or omission with the specific intent to persecute on racial, religious, or political grounds and that Duch had shared the requisite mens rea in this case, (paragraphs 236-240) and that the actus reus of persecution consisted of two prongs, namely that it constituted an act or omission that denied or infringed a fundamental right laid down in customary international law or treaty law, (paragraphs 241-262) and that the persecutory act or omission must ‘discriminate in fact’ such that there were actual discriminatory consequences. (paragraphs 263-277) This definition had been sufficiently foreseeable and accessible to Duch at the time of the alleged crimes. (paragraphs 279-280) The Trial Chamber had committed an error of law by qualifying an unspecified number of individuals who had been detained, interrogated, enslaved, and executed at S-21 as persecution on political grounds. (paragraphs 281-284)

H7  According to the ‘Čelebići test’ elaborated in ICTY and ICTR jurisprudence, when analysing cumulative convictions the crime’s abstract legal elements had to be compared, rather than the factual circumstances surrounding the underlying conduct. (paragraphs 285-326) Accordingly, in addition to Duch’s conviction for persecution as a crime against humanity, separate convictions were entered against him for extermination—encompassing murder—, enslavement, imprisonment, torture and other inhumane acts. (paragraph 336)

H8  With regard to the Defence and Co-Prosecutors’ appeal against the sentence, the ECCC Law was ‘special criminal legislation’, which prevailed over Cambodian law. (paragraphs 342-351) The range of sentence at the ECCC could be anywhere from five years imprisonment to life imprisonment as provided by Article 39 of the ECCC Law. (paragraph 352) The Trial Chamber had committed an error of law invalidating the sentence in the Trial judgment by attaching undue weight to mitigating circumstances and insufficient weight to the gravity of crimes and aggravating circumstances. Thus, the Trial Chamber’s sentence was manifestly inadequate (paragraphs 371-373) and a sentence of life imprisonment was imposed against Duch. (paragraphs 374-383) The Supreme Court Chamber did not have competence to decide a priori on his eligibility for parole, as parole was to be overseen by the Cambodian authorities. (paragraphs 384-388) Moreover, the Trial Chamber had committed an error of law invalidating the sentence by affording a reduction of five years and credit for the time served in detention as remedies for the violations Duch’s rights, as the ECCC was not responsible for the violation. (paragraphs 389-399) Remedy for violations of rights was a separate issue from credit for time served. (paragraph 402) Accordingly, Duch was entitled to credit for the entirety of his time spent in detention, beginning 10 May 1999. (paragraph 404)

H9  Turning to the Civil Party appeals, the notion of the civil party had to be interpreted in accordance with Cambodian procedure, which provided that critical to the definition of the civil party was not a formal designation of a specific class of persons, but the substantive criterion of an actual injury resulting as a direct consequence of the crime. (paragraphs 409-414) Having special bonds of affection or dependence with direct victims was not an arbitrary criterion to determine the admissibility of applications from indirect victims, as it captured the essence of inter-personal relations, the destruction of which was conducive to an injury on the part of indirect victims. The use of this criterion by the Trial Chamber had been both legally correct and foreseeable. (paragraph 447) Bonds of affection and dependence were dynamics that usually existed among close family members. Accordingly, it was not incorrect or unreasonable to relieve the class of immediate family from discharging the burden of proof of injury, providing such class had been defined precisely and the parties had been put on notice. (paragraph 448) Concerning the scope of the presumption of injury, the Trial Chamber’s finding that ‘only in exceptional circumstances’ would non-immediate family members be considered to have had ‘special bonds of affection or dependence’ with the direct victim did not infringe on the rights of the Civil Party appellants because the formulation of a presumption lay in the area of the Court’s discretion and not the parties’ right to benefit from it. (paragraph 449) The Civil Party appellants’ rights were also unaffected by the lack of prior notice, given that they continually had the burden of proving injury through evidence. (paragraph 450)

H10  The Trial Chamber had not erred legally by conducting a two-tier review of the admissibility of Civil Party applications. (paragraphs 466-495) Both Cambodian and ECCC law, and the Trial Chamber’s practice, should have made clear to the Civil Party appellants that their applications would be reassessed in the trial judgment. (paragraphs 496-498) Whatever ambiguity could have existed as to the Civil Parties’ standing at the outset of the trial, it did not entail a prejudice for the Civil Party appellants’ access to the trial proceedings. (paragraphs 499-500) Still, having regard to the novel character of the Civil Party framework before the ECCC and the conceivable lack of clarity as to its specific arrangements, the Civil Party appellants’ motions to submit additional evidence were granted, irrespective of whether such evidence would have been available during the first instance proceedings. (paragraph 501) The standard of proof applied by the Trial Chamber at the reparations stage to determine civil party admissibility, namely, ‘more likely than not to be true’ or ‘preponderance of evidence’, had been in accordance with the law. (paragraphs 522-531) The Trial Chamber had failed, however, to properly notify the Civil Parties of this standard of proof. Any prejudice suffered by the Civil Party appellants because of this omission had been cured by the opportunity they had on appeal to submit additional evidence to satisfy the Supreme Court Chamber that they qualified as civil parties. (paragraphs 532-534) Based on the additional evidence, nine additional Civil Party appellants had substantiated their applications on appeal, and therefore been admitted as Civil Parties to the case. (paragraphs 535-623) The omission of one victim and her child from the list of victims amounted to a clerical error in the Trial judgment, which fell outside the scope of appeal before the Supreme Court Chamber, but was corrected. (paragraphs 624-629)

H11  The ECCC formed part of a unique legal system, (paragraphs 638-641) which allowed that only limited analogy and guidance could be drawn from distinct frameworks, and it was not vested with the authority to assess Cambodia’s compliance with any international obligations. (paragraphs 642-654) According to Rule 23 of the Internal Rules, reparations were limited to ‘collective and moral’ awards. (paragraphs 658-659) The Supreme Court Chamber did not have the jurisdiction to grant requests for reparations that entailed, either explicitly or by necessary implication, an active involvement of the Cambodian authorities in order for the measures to be realized. It also lacked the competence to enforce reparation awards. (paragraphs 662-665) Awards were borne exclusively by convicted persons and it was of primary importance that reparations were limited to such awards that could realistically be implemented. (paragraphs 666-668)

H12  By disposing of the numerous requests for reparation without specific reference to each claim, the Trial Chamber had infringed the Civil Party appellants’ right to a reasoned decision. (paragraphs 669-671) Any claims that would imply an order against the Cambodian state, and any claims that would require financial means on Duch’s side, as he had been found indigent, were rejected. (paragraphs 672-704, 710-716) Requests related to the dissemination of materials concerning the ECCC proceedings, which were an appropriate form of reparations, fell within the mandate of the Public Affairs and the Victims Support Sections. (paragraphs 705-709) Considering the requests which had to be rejected on the basis of Duch’s indigence, national authorities, the international community, and other potential donors were encouraged to provide financial and other forms of support to develop and implement these appropriate forms of reparation. (paragraph 717)

H13  Judges Klonowiecka-Milart and Jayasinghe, partially dissenting: The Trial Chamber had not erred in providing Duch with a remedy for violation of his rights. Accordingly, the life sentence should be commuted to a fixed term of 30 years’ imprisonment. (paragraphs 20, 31)

Date of Report: 20 June 2017
Reporter(s):
Mirka Fries

Analysis

A1  This judgment was the first appeals judgment ever rendered by the ECCC. It therewith constituted the first closure of a case before the Court and marked a significant step for the ECCC in the fulfilment of its mandate. This is why, before addressing the subject matter of the appeals, the appeal judges had to determine whether and how the ECCC’s laws and regulations and Cambodian law applied in the appeal proceedings.

A2  The ECCC was a hybrid tribunal with a limitation placed on its personal jurisdiction. Investigations into crimes were conducted first by two Co-Prosecutors and then again by two Co-Investigating Judges. This procedure was oriented on the civil law tradition and made the decision to indict an individual a judicial one, which, according to international standards, must be subject to judicial review. The Supreme Court Chamber’s finding with regard to personal jurisdiction—namely that the terms ‘most responsible’ and ‘senior leaders’ were not jurisdictional requirements of the ECCC, but operated exclusively as investigatorial and prosecutorial policy and lay at the discretion of the Co-Prosecutors and Co-Investigating Judges—narrowed the scope for review of any decision of the Co-Investigating Judges in relation to a highly controversial issue: the selection of individuals for investigation and prosecution.

A3  Customary international law, by traditional definition, is established through consistent state practice—consuetudo—and the opinio juris supporting the practice. In determining whether crimes against humanity had been an established crime at the time of the ECCC’s temporal jurisdiction and especially with regard to individual criminal liability, the Supreme Court Chamber declared that the requirement of opinio juris could take pre-eminence over the consuetudo element. The judges expressly noted that a lack of prosecution of a certain crime did not suffice to disprove the existence of a crime as part of customary international law. By thereby implying that customary international law could be found to exist even where the practice element was difficult to prove, the judges deviated from the traditional definition under international law.

A4  In delineating its approach to the definition of the crimes against humanity, the Supreme Court Chamber drew upon material that indicated that the relevant crimes had already existed under customary international law at the time of the Court’s temporal jurisdiction, between 1975 and 1979. It therewith took a different approach to the trial judges, who had mostly relied on jurisprudence by the ad hoc tribunals. This approach had rightly been criticized by the appeal judges, as those decisions were not primary sources of international law for the ECCC and were neither applicable during the temporal jurisdiction of the ECCC nor had they been foreseeable and accessible to the accused. The appeal judges therefore only relied on those decisions to support their position.

A5  By finding that rape had not been a distinct crime against humanity during the ECCC’s temporal jurisdiction, the judges confirmed that, under the principle of legality, both the chapeau element and the underlying offence must have been an established crime at the time of commission of the offence.

A6  The Supreme Court Chamber found that the crimes Duch had committed were among the worst in recorded human history. Its decision to increase Duch’s sentence to life imprisonment was in line with other international criminal jurisprudence, where the gravity of the crimes committed had been determined to be the most important factor in sentencing, while mitigating factors did not hinder the imposition of life imprisonment. Important in this context was the judges’ finding that the sentence had to be proportionate to the crimes committed, regardless of whether others may have committed more serious offences. The judges therewith ruled that the fact that other, more high-ranking, Khmer Rouge leaders existed did not warrant a reduction of Duch’s sentence.

A7  At the time of the appeal judgment, Duch was 69 years old. Still, the increase of the sentence from 35 years to life imprisonment was important for at least two major reasons. On the one side, international criminal trials and sentences have a high symbolic value that goes beyond the punishment of the individual in question. They serve as a signal to victims and their families that their suffering has been seen. On the other side, this decision may serve as a precedent for a next, potentially younger perpetrator.

A8  Troubling was the Chamber’s decision to refuse to provide Duch with a remedy for his eight year illegal detention without providing any guidance on how this violation might be addressed. It is noteworthy that neither party had appealed the remedy granted by the trial judges, but that the appeal judges addressed this issue proprio motu. This finding potentially sent the message that due process and human rights standards could be ignored during detention in the domestic justice system. Also unsatisfactory was the Chamber’s holding that the issue of Duch’s eligibility for parole was to be left to the Cambodian justice system without providing for the possibility of monitoring, which would have ensured that fair standards would actually be applied in this decision.

A9  By admitting several additional Civil Parties, the Supreme Court Chamber highlighted the suffering of Duch’s victims and emphasized their important role in proceedings before the ECCC.

A10  Regarding the determination of appropriate reparations, the Supreme Court Chamber shared the restricted approach adopted by the Trial Chamber. As the first appeal judgment of the internationalized Court, this decision will likely have set a standard for further judgments. In particular, the finding that requests for reparations that entailed active involvement of the Cambodian authorities fell outside the ECCC’s jurisdiction and the holding that no claims against an indigent accused could be made likely rule out substantive awards to victims which adequately acknowledge the harm they suffered.

Date of Analysis: 20 June 2017
Analysis by: Mirka Fries

Instruments cited in the full text of this decision:

International

Instructions for the Government of Armies of the United States in the Field (24 April 1863) General Order No 100, Article 44

Project of an International Declaration concerning the Laws and Customs of War (27 August 1874) (1907) 1 AJIL Supp 96, Article 38

The Laws of War on Land (9 September 1880), Article 49

International Convention with respect to the Laws and Customs of War on Land between Austria-Hungary, Belgium, Bulgaria, Denmark, France, Germany, Great Britain, Greece, Italy, Japan, Luxemburg, Mexico, Montenegro, the Netherlands, Portugal, Romania, Russia, Servia, Siam, Spain, Sweden and Norway, Turkey and the United States (29 July 1899) 32 Stat 1803, entered into force 4 September 1900, Preamble

Regulations respecting the Laws and Customs of War on Land (29 July 1899) Annex to 1899 Hague Convention II, entered into force 4 September 1900, Article 46

Convention respecting the Laws and Customs of War on Land between the Argentine Republic, Austria-Hungary, Belgium, Bolivia, Brazil, Bulgaria, Chile, Colombia, Cuba, Denmark, Dominican Republic, Ecuador, France, Germany, Great Britain, Greece, Guatemala, Haiti, Italy, Japan, Luxemburg, Mexico, Montenegro, the Netherlands, Norway, Panama, Paraguay, Persia, Peru, Portugal, Romania, Russia, El Salvador, Servia, Siam, Sweden, Switzerland, Turkey, the United States, Uruguay and Venezuela (18 October 1907) 205 CTS 277, entered into force 26 January 1910, Preamble

Regulations respecting the Laws and Customs of War on Land (18 October 1907) Annex to 1907 Hague Convention IV, entered into force 26 January 1910, Article 46

Convention to Suppress the Slave Trade and Slavery (25 September 1926) 60 LNTS 254, entered into force 9 March 1927, Article 1

Statute of the International Court of Justice (26 June 1945) 33 UNTS 993, entered into force 24 October 1945, Article 38

Agreement for the Prosecution and Punishment of Major War Criminals of the European Axis, and establishing the Charter of the International Military Tribunal (8 August 1945) 82 UNTS 279, entered into force 8 August 1945, Article 6

Allied Control Council Law No 10, Punishment of Persons Guilty of War Crimes, Crimes Against Peace and Against Humanity (20 December 1945) (1946) 3 Official Gazette Control Council for Germany 50-55, entered into force 20 December 1945, Article II

Charter of the International Military Tribunal for the Far East (19 January 1946) TIAS No 1589, entered into force 19 January 1946, Article 5

Statute of the International Law Commission UN Doc A/RES/174(II), International Law Commission, 21 November 1947, Articles 1, 15

Universal Declaration on Human Rights (10 December 1948) UN Doc A/810, 71, Articles 5, 8

Convention on the Prevention and Punishment of the Crime of Genocide (9 December 1948) 78 UNTS 227, entered into force 12 January 1951, Article II

Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (12 August 1949) 75 UNTS 35, entered into force 21 October 1950, Articles 3, 12, 50

Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (12 August 1949) 75 UNTS 81, entered into force 21 October 1950, Articles 3, 12, 51

Geneva Convention relative to the Treatment of Prisoners of War (12 August 1949) 75 UNTS 135, entered into force 21 October 1950, Articles 3, 13, 14, 130

Geneva Convention relative to the Protection of Civilian Persons in Time of War (12 August 1949) 75 UNTS 287, entered into force 21 October 1950, Articles 3, 27, 32, 147

Principles of International Law Recognised in the Charter of the Nürnberg Tribunal and in the Judgment of the Tribunal, UN Doc A/1316, International Law Commission, entered into force 29 July 1950, Principle VI

Convention for the Protection of Human Rights and Fundamental Freedoms (4 November 1950) 213 UNTS 222, entered into force on 3 September 1953, as amended by Protocols Nos. 11 and 14, Articles 3, 13, 34, 35, 38, 41

Draft Code of Offences against the Peace and Security of Mankind (30 April 1954) UN Doc A/CN.4/85, Article 2

Draft Code of Offences against the Peace and Security of Mankind (4 December 1954) UN GA Res 897 (IX)

Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery (7 September 1956) 226 UNTS 3, entered into force 30 April 1957, Articles 6, 7

International Convention on the Elimination of All Forms of Racial Discrimination (21 December 1965) 660 UNTS 195, entered into force 4 January 1969, Article 6

Declaration on the Protection of All Persons from being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (9 December 1975) UN Doc A/RES/3452(XXX), Annex, Articles 1, 7

International Covenant on Civil and Political Rights (16 December 1966) 999 UNTS 171, entered into force 23 March 1976, Articles 2, 7, 9, 14, 15

Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (8 June 1977) 1125 UNTS 3, entered into force 7 December 1978, Articles 75, 76

Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (8 June 1977) 1125 UNTS 609, entered into force 7 December 1978, Article 4

American Convention on Human Rights, 1144 UNTS 123, Organization of American States, 18 July 1978, Articles 44, 63

Vienna Convention on the Law of Treaties (23 May 1969) 1155 UNTS 331, entered into force 27 January 1980, Articles 31, 32

United Nations General Assembly Resolution 36/106 on the Draft Code of Offences against the Peace and Security of Mankind, UN Doc A/RES/36/106, United Nations General Assembly, 10 December 1981, Article 1

Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (10 December 1984) 1465 UNTS 85, entered into force 26 June 1987, Articles 1, 14

Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (29 November 1985) UN Doc A/RES/40/34, Annex, Paras 1, 2, 4, 19

African Charter on Human and Peoples’ Rights (27 June 1981) OAU Doc. CAB/LEG/67/3/Rev.5, entered into force 21 October 1986, Article 21

Provisional Rules for Claims Procedure, UNCC Decision No 10 (1992), adopted 26 June 1992, Article 35

Statute of the International Criminal Tribunal for the former Yugoslavia, UN Doc S/RES/827(1993), Annex, International Criminal Tribunal for the former Yugoslavia, adopted 25 May 1993, amended September 2009 Articles 1, 5, 25, 28

International Criminal Tribunal for the former Yugoslavia Rules of Procedure and Evidence (11 February 1994) UN Doc IT/32, entered into force 14 March 1994, Rules 11bis, 28, 101, 123, 124, 125

Statute of the International Criminal Tribunal for Rwanda, UN Doc S/RES/955(1994), Annex, adopted and entered into force 8 November 1994, as amended at 31 January 2010, Articles 1, 3, 15, 24, 27

International Criminal Tribunal for Rwanda Rules of Procedure and Evidence, UN Doc ITR/3, International Criminal Tribunal for Rwanda, entered into force 29 June 1995, amended 1 October 2009, Rules 11bis, 28, 40, 40bis, 101, 124, 125, 126

Rome Statute of the International Criminal Court (17 July 1998) UN Doc A/CONF.183/9, entered into force 1 July 2002, Articles 6, 7, 8, 68, 75, 76, 77, 78, 79, 110

Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography (25 May 2000) 2171 UNTS 227, entered into force 18 January 2002, Article 9

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) NS/RKM/0801/12, entered into force 10 August 2001, amended 27 October 2004, Articles 1, 2new, 3new, 4, 5, 6, 7, 8, 9new, 14new, 16, 19, 23new, 25, 29, 33new, 36new, 39

Statute of the Special Court for Sierra Leone (16 January 2002) 2178 UNTS 138, entered into force 12 April 2002, Articles 1, 23

Rules of Procedure and Evidence of the Special Court for Sierra Leone (16 January 2002), entered into force 12 April 2002 Rules 101, 123, 124

ICC Elements of Crimes (as amended), ICC-ASP/1/3 (Pt II-B), International Criminal Court, 9 September 2002, Article 7(1)(h), Element 2

International Criminal Court Rules of Procedure and Evidence, ICC-ASP/1/3 (Part II-A), International Criminal Court, 9 September 2002, Rules 85, 89, 91, 94, 95, 97, 143, 145, 219, 224

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), entered into force 29 April 2005, Articles 1, 2, 3, 4, 5, 6, 7, 10, 12

International Criminal Court Regulations of the Trust Fund for Victims, ICC-ASP/4/Res.3, International Criminal Court, 3 December 2005, Regulations 43, 44, 45, 54, 58, 60, 61, 69, 70

Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (16 December 2005) UN Doc A/RES/60/147, Annex, Articles I, VII, IX

Arab Charter on Human Rights (23 May 2004) (2005) 12 IHRR 893, entered into force 15 March 2008, Article 23

Statute of the Special Tribunal for Lebanon, UN Doc S/RES/1757 (2007), Annex, entered into force 31 January 2007, Article 25

Internal Rules of the Extraordinary Chambers in the Courts of Cambodia, Rev 3, Extraordinary Chambers in the Courts of Cambodia, revised 6 March 2009, Preamble, Rules 2, 9, 11, 12, 21, 23, 29, 55, 59, 71, 72, 74, 80, 83, 86, 87, 88, 89, 90, 91, 92, 94, 98, 100, 104, 105, 108, 110, 111, 113

Rules of Procedure and Evidence of the Special Tribunal for Lebanon, STL/BD/2009/01, Special Tribunal for Lebanon, 20 March 2009, amended 10 November 2010, corrected 29 November 2010, Rules 2, 51, 86

Internal Rules of the Extraordinary Chambers in the Courts of Cambodia, Rev. 5, Extraordinary Chambers in the Courts of Cambodia, revised 5 February 2010, Rules 23, 23bis, 77bis

Internal Rules of the Extraordinary Chambers in the Courts of Cambodia, Rev. 8, Extraordinary Chambers in the Courts of Cambodia, revised 3 August 2011, Rules 9, 12, 12bis, 12ter, 23bis, 23quinquies, 67, 72, 74, 104, 111, 114

Domestic

Penal Code (as amended), 8 June 1867 (Belgium), Article 62

Criminal Code (as amended 1998), RGBl 1871 S 127, 1 January 1872 (Germany), Section 52

Code of Criminal Procedure (as amended), RGBl 1877 Nr 8 S 253, 1 October 1879 (Germany), Section 395

Penal Code, Act No 45, 24 April 1907 (Japan), Article 54

Penal Code, ZMB-1931-L-66208, 1 November 1931 (Zambia), Chapter VI, Sections 20, 36

Criminal Code, SR 311.0, 1 January 1942 (Switzerland), Article 49

Penal Code, Kram No 933NS, 1956 (Cambodia), Articles 14, 443

Code of Criminal Procedure (as amended on 1 January 2006),1958 (France), Articles 2, 171, 173, 174, 305, 385, 585, 595, 599, 802

Crimes Act, Act No 43, 1 November 1961 (New Zealand), Section 10

International Crimes (Tribunals) Act, Act No XIX, 20 July 1973 (Bangladesh), Section 3

Criminal Code, Act IV, 1978 (Hungary), Section 85

Law on Marriage and Family, KHM-1989-L-86095, 26 July 1989 (Cambodia), Articles 9, 82, 83

Code of Criminal Procedure, Dz U 1997 Nr 89 poz 555, 1 September 1998 (Poland), Articles 49, 50, 51, 52, 53, 54, 55, 56, 57, 58

Rules of Procedure for the Claims Resolution Process, Claims Resolution Tribunal for Dormant Accounts in Switzerland, 15 October 1997 (Switzerland), Article 22

Crimes (Administration of Sentences) Act, Act 93, 3 April 2000 (Australia), Sections 26, 28

The Law on the Creation of a Foundation ‘Remembrance, Responsibility and Future’, Federal Law Gazette I 1263, 12 August 2000 (Germany), Article 11

Code of Civil Procedure, KHM-2002-L-78324, 17 July 2007 (Cambodia), Articles 92, 96, 123, 124, 155, 336

Civil Code, KHM-2007-L-93489, 22 December 2011 (Cambodia), Articles 234, 434, 459, 988

Code of Criminal Procedure, KHM-2007-L-82933, 7 June 2007 (Cambodia) Articles 2, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 137, 138, 139, 140, 142, 142, 268, 291, 311, 344, 355, 357, 375, 401, 405, 406, 417, 418, 419, 440, 441, 496, 503, 512, 513, 514, 516, 523, 533

Criminal Code, KHM-2010-L-93343, 30 November 2009 (Cambodia), Articles 8, 10, 46, 51, 95, 137, 188, 668, 672

United States Sentencing Commission, Guidelines Manual, §3E1.1, 2011 (United States), Chapter 3, Part D

Cases cited in the full text of this decision:

European Court of Human Rights

Ireland v United Kingdom, Plenary judgment, App No 5310/71, 18 January 1978

Artico v Italy, Chamber judgment, App No 6694/74, 13 May 1980

Guzzardi v Italy, Plenary judgment, App No 7367/76, 6 November 1980

Goddi v Italy, Chamber judgment, App No 8966/80, 9 April 1984

Norris v Ireland, Plenary judgment, App No 10581/83, 26 October 1988

Soering v United Kingdom, Plenary judgment, App No 14038/88, 7 July 1989

SW v United Kingdom, Chamber judgment, App No 20166/92, 22 November 1995

Ribitsch v Austria, Chamber judgment, App No 18896/91, 4 December 1995

Aydin v Turkey, Grand Chamber judgment, App No 23178/94, 25 September 1997

Mentes and ors v Turkey, Grand Chamber judgment, App No 23186/94, 28 November 1997

Kurt v Turkey, Chamber judgment, App No 24276/94, 25 May 1998

Oliveira v Switzerland, Chamber judgment, App No 84/1997/868/1080, 30 July 1998

Yaşa v Turkey, Chamber judgment, App No 22495/93, 2 September 1998

Lehideux and Isorni v France, Grand Chamber judgment, App No 24662/94, 23 September 1998

Velikova v Bulgaria, Chamber decision, App No 41488/98, 18 May 1999

Çakici v Turkey, Grand Chamber judgment, App No 23657/94, 8 July 1999

Dalban v Romania, Grand Chamber judgment, App No 28114/95, 28 September 1999

Çiçek v Turkey, Chamber judgment, App No 25704/94, 27 February 2001

Anguelova v Bulgaria, Chamber judgment, App No 38361/97, 13 June 2002

Karner v Austria, Chamber judgment, App No 40016/98, 24 July 2003

Lizarraga and ors v Spain, Chamber judgment, App No 62543/00, 27 April 2004

B and L v United Kingdom, Chamber decision, App No 36536/02, 29 June 2004

Brudnicka and ors v Poland, Chamber judgment, App No 54723/00, 3 March 2005

Fairfield and ors v United Kingdom, Chamber decision, App No 24790/04, 8 March 2005

Loyen and Bruneel v France, Chamber judgment, App No 55929/00, 5 July 2005

Nachova and ors v Bulgaria, Grand Chamber judgment, App Nos 43577/98 and 43579/98, 6 July 2005

Kolk and Kislyiy v Estonia, Chamber decision, App Nos 23052/04 and 24018/04, 17 January 2006

Biç and ors v Turkey, Chamber judgment, App No 55955/00, 2 February 2006

Monnat v Switzerland, Chamber judgment, App No 73604/01, 21 September 2006

Stoimenov v Macedonia, Chamber judgment, App No 17995/02, 5 April 2007

Stukus and ors v Poland, Chamber judgment, App No 12534/03, 1 April 2008

Gr?dinar v Moldova, Chamber judgment, App No 7170/02, 8 April 2008

Korbely v Hungary, Grand Chamber judgment, App No 9174/02, 19 September 2008

Houtman and Meeus v Belgium, Chamber judgment, App No 22945/07, 17 March 2009

Zietal v Poland, Chamber judgment, App No 64972/01, 12 May 2009

Varnava and ors v Turkey, Grand Chamber judgment, App Nos 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, 18 September 2009

Micallef v Malta, Grand Chamber judgment, App No 17056/06, 15 October 2009

Lipencov v Moldova, Chamber judgment, App No 27763/05, 25 January 2011

Shesti Mai Engineering Ood and ors v Bulgaria, Chamber judgment, App No 17854/04, 20 September 2011

Inter-American Court of Human Rights

Velasquez-Rodriguez v Honduras, Judgment, merits, 29 July 1988

Aloeboetoe and ors v Suriname, Judgment, reparations and costs, 10 September 1993

Blake v Guatemala, Judgment, merits, 24 January 1998

Case of the white van, Judgment, merits, 8 March 1998

Garrido and Baigorria v Argentina, Judgment, reparations and costs, 27 August 1998

Castillo-Páez v Peru, Judgment, reparations and costs, 27 November 1998

Velásquez v Guatemala, Judgment, merits, 25 November 2000

Case of the white van, Paniagua-Morales and ors v Guatemala, Judgment, reparations and costs, 25 May 2001

Case of the Street Children Villagrán Morales and ors v Guatemala, Judgment, reparations and costs, 26 May 2001

Caracazo v Venezuela, Judgment, reparations and costs, 29 August 2002

Sánchez v Honduras, Judgment, preliminary objections, merits, reparations and costs, 7 June 2003

Mack Chang v Guatemala, Merits, reparations and costs, reasoned concurring opinion of Judge Sergio García-Ramírez, 25 November 2003

Sánchez v Honduras, Judgment, interpretation of the judgment of preliminary objections, merits and reparations, 26 November 2003

Molina-Theissen v Guatemala, Judgment, merits, 4 May 2004

19 Merchants v Colombia, Judgment, merits, reparations and costs, 5 July 2004

Gómez-Paquiyauri Brothers v Perú, Judgment, merits, reparations and costs, 8 July 2004

Case of the Juvenile Reeducation Institute v Paraguay, Judgment, preliminary objections, merits, reparations and costs, 2 September 2004

De La Cruz-Flores v Peru, Judgment, merits, reparations and costs, 18 November 2004

Plan de Sánchez Massacre v Guatemala, Judgment, reparations and costs, 19 November 2004

Serrano-Cruz Sisters v El Salvador, Judgment, merits, reparations and costs, 1 March 2005

Huilca-Tecse v Peru, Judgment, merits, reparations and costs, 3 March 2005

Moiwana Community v Suriname, Judgment, preliminary objections, merits, reparations and costs, 15 June 2005

Case of the Mapiripán Massacre v Colombia, Judgment, merits, reparations and costs, 15 September 2005

Case of the Ituango Massacres v Colombia, Judgment, preliminary objections, merits, reparations and costs, 1 July 2006

Goiburú and ors v Paraguay, Judgment, merits, reparations and costs, 22 September 2006

La Cantuta v Perú, Judgment, merits, reparations and costs, 29 November 2006

Zambrano-Vélez and ors v Ecuador, Judgment, merits, reparations and costs, 4 July 2007

Heliodoro Portugal v Panama, Judgment, preliminary objections, merits, reparations and costs, 12 August 2008

Valle-Jaramillo and ors v Colombia, Judgment, merits, reparations and costs, 27 November 2008

Estrada and ors v Bolivia, Judgment, merits, reparations and costs, 27 November 2008

Kawas-Fernandez v Honduras, Judgment, merits, reparations and costs, 3 April 2009

Usón Ramírez v Venezuela, Judgment, preliminary objections, merits, reparations and costs, 20 November 2009

Garcia and Flores v Mexico, Judgment, preliminary objections, merits, reparations and costs, 26 November 2010

Alosilla and ors v Peru, Judgment, merits, reparations and costs, 4 March 2011

Vera Vera v Ecuador, Judgment, preliminary objections, merits, reparations and costs, 19 May 2011

Contreras and ors v El Salvador, Judgment, merits, reparations and costs, 31 August 2011

International Criminal Court

Situation in the Central African Republic, Judgment on the appeal of Mr Jean-Pierre Bemba Gombo against the decision of Pre-Trial Chamber III entitled ‘Decision on application for interim release’, Case no ICC-01/05-01/08-323, 16 December 2008

Situation in the Democratic Republic of the Congo, Judgment on the appeal of Mr Thomas Lubanga Dyilo against the decision of Pre-Trial Chamber I entitled ‘Decision sur la demande de mise en liberte provisoire de Thomas Lubanga Dyilo’, Case no ICC-01/04-01/06-824; ICL 74 (ICC 2007), 13 February 2007

Situation in Darfur, Sudan, Corrigendum to Decision on the applications for participation in the proceedings of applicants a/0011/06 to a/0015/06, a/0021/07, a/0023/07 to a/0033/07 and a/0035/07 to a/0038/07, Case no ICC-02/05-111-Corr, 6 December 2007

Situation in the Democratic Republic of the Congo, Decision on victims' participation, Case no ICC-01/04-01/06-1119; ICL 505 (ICC 2008), 18 January 2008

Situation in the Democratic Republic of the Congo, Corrigendum to the ‘Decision on the applications for participation filed in connection with the investigation in the Democratic Republic of the Congo by a/0004/06 to a/0009/06, a/0016/06 to a/0063/06, a/0071/06 to a/0080/06 and a/0105/06 to a/0110/06, a/0188/06, a/0128/06 to a/0162/06, a/0199/06, a/0203/06, a/0209/06, a/0214/06, a/0220/06 to a/0222/06, a/0224/06, a/0227/06 to a/0230/06, a/0234/06 to a/0236/06, a/0240/06, a/0225/06, a/0226/06, a/0231/06 to a/0233/06, a/0237/06 to a/0239/06 and a/0241/06 to a/0250/06’, Case no ICC-01/04-423-Corr, 31 January 2008

Situation in Democratic Republic of the Congo, Decision on the applications for participation in the proceedings of applicants a/0327/07 to a/0337/07 and a/0001/08, Case no ICC-01/04-01/07, 2 April 2008

Situation in the Democratic Republic of the Congo, Decision, in limine, on victim participation in the appeals of the Prosecutor and the Defence against Trial Chamber I's decision entitled ‘Decision on victims' participation’, Case no ICC-01/04-01/06-1335, 18 May 2008

Situation in the Democratic Republic of the Congo, Judgment on the appeals of the Prosecutor and the Defence against Trial Chamber I's decision on victims' participation of 18 January 2008, Case no ICC-01/04-01/06-1432, 11 July 2008

Situation in the Central African Republic, Fourth decision on victims' participation, Case no ICC-01/05-01/08-320; ICL 1542 (ICC 2008), 12 December 2008

Situation in the Democratic Republic of Congo, Judgment on victim participation in the investigation stage of the proceedings in the appeal of the OPCD against the decision of Pre-Trial Chamber I of 7 December 2007 and in the appeals of the OPCD and the Prosecutor against the decision of Pre-Trial Chamber I of 24 December 2007, Case no ICC-01/04-556; ICL 1534 (ICC 2008), 19 December 2008

Situation in the Democratic Republic of the Congo, Decision on the treatment of applications for participation, Case no ICC-01/04-01/07-933, 26 February 2009

Situation in the Democratic Republic of the Congo, Redacted version of 'Decision on ‘indirect victims’, Case no ICC-01/04-01/06-1813; ICL 777 (ICC 2009), 8 April 2009

Situation in the Central African Republic, Decision pursuant to Article 61(7)(a) and (b) of the Rome Statute on the charges of the Prosecutor against Jean-Pierre Bemba Gombo, Case no ICC-01/05-01/08-424; ICL 780 (ICC 2009), 15 June 2009

Situation in the Central African Republic, Decision defining the status of 54 victims who participated at the pre-trial stage, and inviting the parties’ observations on applications for participation by 86 applicants, Case no ICC-01/05-01/08-699, 22 February 2010

Situation in Darfur, Sudan, Prosecutor v Abu Garda, Decision on applications a/0655/09, a/0656/09, a/0736/09 to a/0747/09, and a/0750/09 to a/0755/09 for participation in the proceedings at the pre-trial stage of the case, Case no ICC-02/05-02/09-255, 19 March 2010

Situation in the Democratic Republic of the Congo, Judgment on the appeal of Mr Katanga against the decision of Trial Chamber II of 22 January 2010 entitled ‘Decision on the modalities of victim participation at trial’, Case no ICC-01/04-01/07-2288, 16 July 2010

Situation in the Central African Republic, Decision on 772 applications by victims to participate in the proceedings, Case no ICC-01/05-01/08-1017, 18 November 2010

Situation in the Democratic Republic of the Congo, Decision on victims' participation in proceedings relating to the situation in the Democratic Republic of the Congo, Case no ICC-01/04-593, 11 April 2011

Situation in Darfur, Sudan, Decision on the Registry Report on six applications to participate in the proceedings, Case no ICC-02/05-03/09-231, 17 October 2011

Situation in the Democratic Republic of the Congo, Judgment pursuant to Article 74 of the Statute, Case no ICC-01/04-01/06-2842, ICC-01/04-01/06-2842-AnxA; ICL 910 (ICC 2012), 14 March 2012

International Criminal Tribunal for Rwanda

Prosecutor v Akayesu, Judgment, Case no ICTR-94-4-T, 2 September 1998

Prosecutor v Kambanda, Judgment, Case no ICTR-97-23-S, 4 September 1998

Prosecutor v Serushago, Sentence, Case no ICTR-98-39-S, 5 February 1999

Prosecutor v Rutaganda, Judgment and sentence, Case no ICTR-96-3-T, 6 December 1999

Prosecutor v Kayishema and Ruzindana, Judgment, Case no ICTR-95-I-T, 21 May 1999

Prosecutor v Kayishema and Ruzindana, Sentence, Case no ICTR-95-1-T, 21 May 1999

Barayagwiza v Prosecutor, Appeal decision, Case no ICTR-97-19-AR72, 3 November 1999

Prosecutor v Musema, Judgment and sentence, Case no ICTR-96-13-T, 27 January 2000

Prosecutor v Semanza, Appeal decision, Case no ICTR-97-20-A, 31 May 2000

Prosecutor v Ruggiu, Judgment and sentence, Case no ICTR-97-32-I, 1 June 2000

Kambanda v Prosecutor, Appeal judgment, Case no ICTR-97-23-A, 19 October 2000

Prosecutor v Rwamakuba, Decision on the Defence motion concerning the illegal arrest and illegal detention of the Accused, Case no ICTR-98-44-T, 12 December 2000

Prosecutor v Akayesu, Appeal judgment, Case no ICTR-96-4, 1 June 2001

Prosecutor v Kayishema and Ruzindana, Judgment (reasons), Case no ICTR-95-1-A, 1 June 2001

Prosecutor v Musema, Judgment, Case no ICTR-96-13, 16 November 2001

Prosecutor v Bagilishema, Appeal judgment, Case no ICTR-95-1A, 3 July 2002

Prosecutor v Ntakirutimana, Judgment, Case no ICTR-96-17-T, 21 February 2003

Prosecutor v Semanza, Judgment and sentence, Case no ICTR-97-20-T, 15 May 2003

Prosecutor v Niyitegeka, Judgment, Case no ICTR-96-14-T, 16 May 2003

Prosecutor v Nahimana and ors, Judgment, Case no ICTR-99-52-T, 3 December 2003

Prosecutor v Ntagerura and ors, Judgment and sentence, Case no ICTR-99-46-T, 25 February 2004

Prosecutor v Gacumbitsi, Judgment, Case no ICTR-2001-64-T, 17 June 2004

Prosecutor v Niyitegeka, Appeal judgment, Case no ICTR-96-14-A, 9 July 2004

Prosecutor v Ndindabahizi, Judgment, Case no ICTR-2001-71-T, 15 July 2004

Prosecutor v Ntakirutimana, Appeal judgment, Case no ICTR-96-10-A and ICTR-96-17-A, 13 December 2004

Prosecutor v Muhimana, Judgment and sentence, Case no ICTR-95-1B-T, 28 April 2005

Semanza v Prosecutor, Appeal judgment, Case no ICTR-97-20-A, 20 May 2005

Prosecutor v Kajelijeli, Appeal judgment, Case no ICTR-98-44A-A, 23 May 2005

Prosecutor v Serugendo, Judgment and Sentence, Case no ICTR-2005-84-I, 12 June 2006

Prosecutor v Rwamakuba, Decision on appropriate remedy, Case no ICTR-98-44C-T, 31 January 2007

Gacumbitsi v Prosecutor, Judgment, Case no ICTR-2001-64-A, 7 July 2006

Prosecutor v Rwamakuba, Decision on appeal against decision on appropriate remedy, Case no ICTR-98-44C-A, 13 September 2007

Prosecutor v Rugambarara, Sentencing Judgment, Case no ICTR-00-59-T, 16 November 2007

Nahimana v Prosecutor, Appeal judgment, Case no ICTR-99-52-A, 28 November 2007

Prosecutor v Karera, Judgment and sentence, Case no ICTR-01-74-T, 7 December 2007

Prosecutor v Seromba, Judgment, Case no ICTR-01-66-A, 12 March 2008

Prosecutor v Nchamihigo, Judgment and sentence, Case no ICTR-01-63-T, 12 November 2008

Prosecutor v Bikindi, Judgment, Case no ICTR-01-72-T, 2 December 2008

Prosecutor v Bagosora and ors, Judgment and sentence, Case no ICTR-98-41-T, 18 December 2008

Prosecutor v Karera, Appeal judgment, Case no ICTR-01-74-A, 2 February 2009

Prosecutor v Renzaho, Appeal judgment, Case no ICTR-97-31-A, 1 April 2011

Prosecutor v Nyiramasuhuko and ors, Judgment and sentence, Case no ICTR-98-42-T, 24 June 2011

International Criminal Tribunal for the former Yugoslavia

Prosecutor v Tadić, Decision on the Defence motion for interlocutory appeal on jurisdiction, Case no IT-94-1-A, 2 October 1995

Prosecutor v Tadić, Judgment, Case no IT-94-1-T, 7 May 1997

Prosecutor v Erdemović, Appeal judgment, Case no IT-96-22-A, 7 October 1997

Prosecutor v Erdemović, Separate and dissenting opinion of Judge Cassese, Case no IT-96-22-A, 7 October 1997

Prosecutor v Erdemović, Sentencing judgment, Case no IT-96-22-Tbis, 5 March 1998

Prosecutor v Mucić and ors , Judgment, Case no IT-96-21, 16 November 1998

Prosecutor v Tadić, Appeal judgment, Case no IT-94-1-A, 15 July 1999

Prosecutor v Jelišić, Judgment, Case no IT-95-10-T, 14 December 1999

Prosecutor v Kupreškić and ors, Judgment, Case no IT-95-16-T, 14 January 2000

Prosecutor v Blaškić, Judgment, Case no IT-95-14-T, 3 March 2000

Prosecutor v Aleksovski, Appeal judgment, Case no IT-95-14/1-A, 24 March 2000

Prosecutor v Furundžija, Appeal judgment, Case no IT-95-17/1, 21 July 2000

Čelebići, Prosecutor v Delalić and ors, Judgment, Case no IT-96-21-A, 20 February 2001

Prosecutor v Kunarac and ors, Judgment, Case no IT-96-23&23/1, 22 February 2001

Prosecutor v Kordić and Čerkez, Judgment, Case no IT-95-14/2-T, 26 February 2001

Prosecutor v Jelisić, Judgment, Partial dissenting opinion of Judge Shahabuddeen, Case no IT-95-10-A, 5 July 2001

Prosecutor v Todorović, Sentencing judgment, Case no IT-95-9/1-S, 31 July 2001

Prosecutor v Krstić, Judgment, Case no IT-98-33-T, 2 August 2001

Prosecutor v Kupreškić and ors, Appeal judgment, Case no IT-95-16-A, 23 October 2001

Prosecutor v Kvočka and ors, Judgment, Case no IT-98-30/1-T, 2 November 2001

Prosecutor v Krnojelac, Judgment, Case no IT-97-25-T, 15 March 2002

Prosecutor v Kunarac and ors , Appeal judgment, Case no IT-96-23&23/1-A, 12 June 2002

Prosecutor v Naletilić and Martinović, Judgment, Case no IT-98-34-T, 31 March 2003

Prosecutor v Mučić, Delic and Landžo, Judgment on sentence appeal, Case no IT-96-21-Abis, 8 April 2003

Prosecutor v Milutinović and ors, Decision on Dragoljub Ojdanić’s motion challenging jurisdiction — joint criminal eEnterprise, Case no IT-99-37-AR72, 21 May 2003

Prosecutor v Hadžihasanović and Kubura, Decision on interlocutory appeal challenging jurisdiction in relation to command responsibility, Case no IT-01-47-A, 16 July 2003

Prosecutor v Stakić, Judgment, Case no IT-97-24-T, 31 July 2003

Prosecutor v Krnojelac, Appeal judgment, Case no IT-97-25-A, 17 September 2003

Prosecutor v Simić and ors , Judgment, Case no IT-95-9-T, 17 October 2003

Prosecutor v Vasiljević, Appeal judgment, Case no IT-98-32-A, 25 February 2004

Prosecutor v Mrđa, Sentencing judgment, Case no IT-02-59-S, 31 March 2004

Prosecutor v Krstić, Appeal judgment, Case no IT-98-33-A, 19 April 2004

Prosecutor v Blaškic, Appeal judgment, Case no IT-95-14-A, 29 July 2004

Prosecutor v Kordić and Čerkez, Appeal judgment, Case no IT-95-14/2-A, 17 December 2004

Prosecutor v Blagojević and Jokić, Judgment, Case no IT-02-60-T, 17 January 2005

Prosecutor v Nikolić, Judgment on sentencing appeal, Case no IT-94-02-A, 4 February 2005

Prosecutor v Kvočka, Appeal judgment, Case no IT-98-30/1-A, 28 February 2005

Prosecutor v Deronjić, Judgment on sentencing appeal, Case no IT-02-61-A, 20 July 2005

Prosecutor v Brđanin, Judgment, Case no IT-99-36-T, 1 September 2005

Prosecutor v Stakić, Appeal judgment, Case no IT-97-24-A, 22 March 2006

Prosecutor v Naletilić and Martinović, Appeal judgment, Case no IT-98-34-A, 3 May 2006

Prosecutor v Krajišnik, Judgment, Case no IT-00-39-T, 27 September 2006

Prosecutor v Simić and ors, Appeal judgment, Case no IT-95-9-A, 28 November 2006

Prosecutor v Galić, Appeal judgment, Case no IT-98-29-A, 30 November 2006

Prosecutor v Brđanin, Appeal judgment, Case no IT-99-36-A, 3 April 2007

Prosecutor v Blagojević and Jokić, Appeal judgment, Case no IT-02-60-A, 9 May 2007

Prosecutor v Martić, Judgment, Case no IT-95-11-T, 12 June 2007

Prosecutor v Milutinović, Decision on Nebojša Pavković's motion for a dismissal of the indictment against him on grounds that the United Nations Security Council illegally established the International Criminal Tribunal for the Former Yugoslavia, Case no IT-05-87-T, 21 February 2008

Prosecutor v Boškoski and Tarčulovski, Judgment, Case no IT-04-82-T, 10 July 2008

Prosecutor v Strugar, Appeal judgment, Case no IT-01-42-A, 17 July 2008

Prosecutor v Delić, Judgment, Case no IT-04-83-A, 15 September 2008

Prosecutor v Milutinović and ors , Judgment, Case no IT-05-87-T, 26 February 2009

Prosecutor v Krajišnik, Appeal judgment, Case no IT-00-39-A, 17 March 2009

Prosecutor v Lukić and Lukić, Judgment, Case no IT-98-32/1-T, 20 July 2009

Prosecutor v Karadžić, Decision on the Accused’s motion for remedy for violation of rights in connection with arrest, Case no IT-95-5/18-PT, 31 August 2009

Prosecutor v D Milošević, Appeal judgment, Case no IT-98-29/1-A, 12 November 2009

Prosecutor v Vasiljević, Judgment, Case no IT-98-32-T, 29 November 2009

Prosecutor v Boškoski and Tarčulovski, Appeal judgment, Case no IT-04-82-A, 19 May 2010

Prosecutor v Popović, Judgment, Case no IT-05-88-T, 10 June 2010

Prosecutor v ?orđević, Judgment, Case no IT-05-87/1-T, 23 February 2011

Prosecutor v Gotovina and ors, Judgment, Case no IT-06-90-T, 15 April 2011

Prosecutor v Perišić, Judgment, Case no IT-04-81-T, 6 September 2011

Bosnia & Herzegovina domestic courts

Prosecutor v Ivica Vrdoljak, X-KR-08488, 10 July 2008

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Decision - full text

I.  Introduction

1.  The Supreme Court Chamber of the Extraordinary Chambers in the Courts of Cambodia (“Chamber” and “ECCC”, respectively) hereby renders its Judgement on the appeals against the Judgement of the Trial Chamber (“Trial Judgement”) issued on 26 July 2010 in the case of KAING Guek Eav alias Duch, Case File No. 001/18-07-2007/ECCC/SC.1

A.  Background

2.  The events giving rise to these appeals took place between October 1975 and 6 January 1979 at S-21, a security centre in Phnom Penh, Cambodia, tasked with interrogating and executing perceived opponents of the Communist Party of Kampuchea (“CPK”). S-21 included the detention centre and surrounding area (Tuol Sleng) as well as its execution and re-education camp branches on the outskirts of Phnom Penh, named Choeung Ek and Prey Sâr (S-24), respectively. No fewer than 12,272 victims, including men, women and children, were executed at S-21, the majority of who were systematically tortured.2

3.  The Accused, KAING Guek Eav alias Duch, is a former mathematics teacher born on 17 November 1942 in the village of Poev Veuy, Peam Bang Sub-District, Stoeung District, in the province of Kompong Thom, Cambodia.3 The Accused was Deputy Chairman of S-21 from 15 August 1975 to March 1976, and Chairman of S-21 from March 1976 until the collapse of the Democratic Kampuchea (“DK”) regime on 7 January 1979.4

B.  Procedural Overview

4.  On 18 July 2007, the ECCC Co-Prosecutors filed an Introductory Submission with the Co-Investigating Judges pursuant to Internal Rule 53, opening a judicial investigation against five individuals, including the Accused.5 On 19 September 2007, the Co-Investigating Judges ordered the separation of the case file of the Accused in relation to facts concerning S-21, which were investigated under Case File No. 001/18-07-2007 and which comprise the present case.6 On 8 August 2008, the Co-Investigating Judges issued a Closing Order indicting the Accused for crimes against humanity and grave breaches of the Geneva Conventions of 1949.7

5.  The Co-Prosecutors appealed against the Closing Order on 5 September 2008.8 The Pre-Trial Chamber issued an oral decision on this appeal on 5 December 2008.9 The Pre-Trial Chamber partially granted the Co-Prosecutors’ first ground of appeal, finding that the domestic crimes of torture and premeditated murder as defined by the 1956 Penal Code of Cambodia (“1956 Penal Code”) should be added to the Closing Order.10 The Pre-Trial Chamber dismissed the Co-Prosecutors’ second ground of appeal, which had alleged that the Co-Investigating Judges erred in failing to include joint criminal enterprise as a form of responsibility in the Closing Order.11 The Pre-Trial Chamber remitted the Accused for trial on the basis of the Amended Closing Order, which established the factual allegations for the Trial Chamber to determine at trial.

6.  The Initial Hearing before the Trial Chamber took place on 17 and 18 February 2009.12 The substantive trial hearing commenced on 30 March 2009 and the hearing of the evidence concluded on 17 September 2009 after 72 trial days.13 Ninety individuals were joined as Civil Parties and were represented by lawyers, forming four groups of Civil Parties (“Civil Parties Group(s)”).14 Closing trial statements were made by the Co-Prosecutors, the Civil Parties through their Co-Lawyers, the Accused’s Co-Lawyers, and the Accused from 23 to 27 November 2009.15

7.  The Trial Chamber delivered its Judgement on 26 July 2010. The Trial Chamber found that, as Deputy and then Chairman of S-21, the Accused managed and refined a system over the course of more than three years that resulted in the execution of no fewer than 12,272 victims, the majority of whom were also systematically tortured.16 The Trial Chamber sentenced the Accused to 35 years of imprisonment based on convictions for the crime against humanity of persecution (subsuming the crimes against humanity of extermination (encompassing murder), enslavement, imprisonment, torture (including one instance of rape) and other inhumane acts), as well as for grave breaches of the Geneva Conventions of 1949 (wilful killing, torture and inhumane treatment, wilfully causing great suffering or serious injury to body or health, wilfully depriving a prisoner of war or civilian of the rights of fair and regular trial, and unlawful confinement of a civilian).17 The Trial Chamber decided that a reduction in the sentence of 5 years was appropriate given the violation of the Accused’s rights occasioned by his illegal detention by the Cambodian Military Court between 10 May 1999 and 30 July 2007.18 The Trial Chamber also found that the Accused is entitled to credit for the entirety of his time spent in detention, from 10 May 1999 to 30 July 2007 (under the authority of the Cambodian Military Court) and from 31 July 2007 until the date the Trial Judgement becomes final.19

8.  The Trial Chamber granted two reparations to the Civil Parties. The Trial Chamber declared in its Judgement that all admitted Civil Parties suffered harm as a direct consequence of the crimes for which the Accused was convicted. The Trial Chamber agreed to compile all statements of apology and acknowledgements of responsibility made by the Accused during the course of the trial and to post this compilation on the ECCC’s official website within 14 days of the Trial Judgement becoming final.20

9.  The Co-Prosecutors, the Accused, and Civil Parties Groups 1, 2, and 3 appealed to the Supreme Court Chamber against the Trial Judgement.21

10.  The Supreme Court Chamber held a management meeting regarding the appeal hearing on 23 March 2011 in closed session with counsel for the Appellants. The substantive Appeal Hearing was conducted over three days from 28-30 March 2011.

II.  Standard of Appellate Review

11.  Internal Rule 104(1) of the ECCC Internal Rules provides that the grounds of appeal to the Supreme Court Chamber against a judgement of the Trial Chamber are “an error on a question of law invalidating the judgment […] or an error of fact which has occasioned a miscarriage of justice.”22 The adoption of these grounds of appeal implements a legislative decision made in the United Nations — Royal Government of Cambodia Agreement and ECCC Law that the review of ECCC trial judgements would be carried out at one instance only.23 As a result, the UN-RGC Agreement and the ECCC Law depart from the two-tier review provided for in Cambodian criminal procedure,24 yet leave little guidance as to the actual functioning of the ECCC appeal regime.

12.  According to Cambodian criminal procedure, there are two levels of review of a judgement from a court of first instance. A Criminal Chamber of the Court of Appeal decides appeals de novo based on evidence adduced before the first instance court and, as the case may be, the Court of Appeal.25 Through a request for cassation, the Supreme Court may review appeals judgements issued by the Court of Appeal.26 The 2007 Code of Criminal Procedure enumerates the following grounds for which the Supreme Court of Cambodia may grant a request for cassation:

  • —  for illegal composition of the trial panel;

  • —  for lack of jurisdiction of the court;

  • —  for abuse of power;

  • —  for breaching the law or for misapplication of the law;

  • —  for violations or failure to comply with procedure causing nullity;

  • —  for failure to decide on a request made by the Prosecutor or a party, given it was unambiguous and made in writing;

  • —  for manipulation of facts;

  • —  for lack of reasons; or

  • —  for contradiction between holding and ruling.27

13.  Pursuant to the ECCC Law, which provides that the Supreme Court Chamber “shall serve as both appellate chamber and final instance,”28 remedies available under Cambodian criminal procedure were conflated into one sui generis appellate system. The ECCC is therefore authorised by the UN-RGC Agreement and ECCC Law to seek guidance under this system in procedural rules established at the international level, including their interpretation by relevant international judicial bodies.29 The resulting system of appeal in Internal Rule 104(1) retains features of appellate review by a Criminal Chamber of the Court of Appeal in that the Supreme Court Chamber may itself examine evidence and call or admit new evidence to determine an issue.30 The grounds of appeal in Internal Rule 104(1) against a trial judgement also encompass the grounds for a request for cassation to the Supreme Court of Cambodia. At the same time, in keeping with the purposes of the Internal Rules,31 the Supreme Court Chamber notes that these grounds of appeal are well established in international criminal law,32 and the language adopted for Internal Rule 104(1) closely resembles grounds of appeal found in the Statutes of the International Criminal Tribunal for the former Yugoslavia (“ICTY”) and of the International Criminal Tribunal for Rwanda (“ICTR”).33 Accordingly, ICTY and ICTR jurisprudence is a source of guidance in the interpretation of Internal Rule 104(1).

14.  Errors of law may be alleged against a conviction or acquittal. When a party raises such an allegation, the Supreme Court Chamber, as the final arbiter of the law applicable before the ECCC, is bound in principle to determine whether an error of law was in fact committed on a substantive or procedural issue.34 The Supreme Court Chamber reviews the Trial Chamber’s findings on questions of law to determine whether they are correct, not merely whether they are reasonable.35 This standard of correctness means that the Supreme Court Chamber decides whether the Trial Chamber established the content of the applicable legal norms based in the appropriate sources of law and by employing rules of interpretation pertinent to those sources of law. The Supreme Court Chamber also assesses whether the result reached is precise and unambiguous.

15.  The appellate powers of the Supreme Court Chamber are exercised within the limits of the issues appealed. Defence, Co-Prosecutors, or Civil Parties alleging an error of law must identify the alleged error, present arguments in support of the allegation, and explain how the error invalidates the trial judgement.36 However, the burden of proof on appeal is not absolute with regard to errors of law. Even if the party’s arguments are insufficient to support the contention of an error of law, the Supreme Court Chamber may find other reasons and come to the same conclusion, holding that there is an error of law.37 In order to make a determination as to the issue on appeal, the Supreme Court Chamber also reviews those legal findings of the Trial Chamber which constitute necessary predicates for the impugned decision. In exceptional circumstances, the Supreme Court Chamber may raise questions ex proprio motu38 or hear appeals where a party has raised a legal issue that would not lead to the invalidation of the judgement but is nevertheless of general significance to the ECCC’s jurisprudence.39

16.  Where the Supreme Court Chamber finds an error of law in a trial judgement arising from the application of the wrong legal standard by the Trial Chamber, the Supreme Court Chamber will determine the correct legal standard and review the relevant factual findings of the Trial Chamber. In so doing, the Supreme Court Chamber not only corrects the legal error, but applies the correct legal standard to the evidence contained in the trial record, where necessary, and determines whether it is itself convinced on the relevant standard of proof as to the factual finding challenged by a party before that finding is confirmed on appeal.40 The Supreme Court Chamber may amend a decision of the Trial Chamber only if it identifies an error of law “invalidating the judgment or decision.”41 Consequently, not every error of law justifies a reversal or revision of a decision of the Trial Chamber. Where the Co-Prosecutors or Civil Parties allege an error of law in their appeals against an acquittal, the Supreme Chamber may only modify the findings of law of the Trial Chamber if the Supreme Court Chamber considers the trial judgement erroneous, but cannot modify the disposition of the Trial Chamber judgement.42 Decisions of the Supreme Court Chamber are final and binding on all parties in the case.

17.  Similar to errors of law, an error of fact may be alleged against a conviction or acquittal. The Supreme Court Chamber applies the standard of reasonableness in reviewing an impugned finding of fact, not whether the finding is correct. In determining whether or not a Trial Chamber’s finding of fact was one that no reasonable trier of fact could have reached, the Supreme Court Chamber “will not lightly disturb findings of fact by a Trial Chamber.”43 The Supreme Court Chamber agrees with the following general approach to the factual findings of the Trial Chamber as articulated by the ICTY Appeals Chamber:

Pursuant to the jurisprudence of the Tribunal, the task of hearing, assessing and weighing the evidence presented at trial is left primarily to the Trial Chamber. Thus, the Appeals Chamber must give a margin of deference to a finding of fact reached by a Trial Chamber. Only where the evidence relied on by the Trial Chamber could not have been accepted by any reasonable tribunal of fact or where the evaluation of the evidence is “wholly erroneous” may the Appeals Chamber substitute its own finding for that of the Trial Chamber.

[…].

The reason that the Appeals Chamber will not lightly disturb findings of fact by a Trial Chamber is well known. The Trial Chamber has the advantage of observing witnesses in person and so is better positioned than the Appeals Chamber to assess the reliability and credibility of the evidence. Accordingly, it is primarily for the Trial Chamber to determine whether a witness is credible and to decide which witness’ testimony to prefer, without necessarily articulating every step of the reasoning in reaching a decision on these points. This discretion is, however, tempered by the Trial Chamber’s duty to provide a reasoned opinion […].44

18.  Considering that the guilt of an accused must be established at trial beyond reasonable doubt, the significance of an error of fact occasioning a miscarriage of justice must be evaluated in the context of what the appellant seeks to demonstrate. This is somewhat different for an appeal by the Co-Prosecutors against acquittal than with an appeal by the Defence against conviction. An appeal against a conviction must show that the Trial Chamber’s factual errors create a reasonable doubt as to an accused’s guilt. An appeal against an acquittal must show that, when account is taken of the errors of fact committed by the Trial Chamber, all reasonable doubt of the accused’s guilt has been eliminated.45 However, in case of an appeal by the Co-Prosecutors or Civil Parties against an acquittal, the Supreme Chamber may only modify the findings of fact of the Trial Chamber if it considers the judgement erroneous, and cannot modify the disposition of the Trial Chamber’s judgement.46

19.  Irrespective of which party alleges an error of fact, only those facts occasioning a miscarriage of justice may result in the Supreme Court Chamber overturning the Trial Chamber’s judgement in whole or in part. A miscarriage of justice is defined as “[a] grossly unfair outcome in judicial proceedings.”47 For the error of fact to be one that occasioned a miscarriage of justice, it must have been “critical to the verdict reached.”48 A party must demonstrate how the error of fact has actually occasioned a miscarriage of justice.

20.  On appeal, a party may not merely repeat arguments that did not succeed at trial, unless the party can demonstrate that the Trial Chamber’s rejection of them constituted such an error as to warrant the intervention of the Supreme Court Chamber. Arguments of a party which do not have the potential to cause the impugned decision to be reversed or revised may be immediately dismissed by the Supreme Court Chamber and need not be considered on the merits. In order for the Supreme Court Chamber to assess a party’s arguments on appeal, the appealing party is expected to provide precise references to relevant transcript pages or paragraphs in the trial judgement to which the challenge(s) is being made.49 Further, the Supreme Court Chamber “cannot be expected to consider a party’s submissions in detail if they are obscure, contradictory, vague or suffer from other formal and obvious insufficiencies.”50 The Supreme Court Chamber has inherent discretion in selecting which submissions merit a detailed reasoned opinion in writing. The Supreme Court Chamber may dismiss arguments that are evidently unfounded without providing detailed reasoning.

III.  Alleged Errors Concerning Personal Jurisdiction (Ground 1 of the Defence Appeal)

A.  Personal Jurisdiction in Trial Proceedings and Trial Judgement

21.  During the Initial Hearing on 17 February 2009, the President of the Trial Chamber invited the parties to raise any objection to the jurisdiction of the Chamber, and expressly drew their attention to the provisions of Internal Rule 89(1) and to the consequences of a failure to raise such an objection at the Initial Hearing.51 The Defence raised one preliminary objection concerning the statute of limitations for crimes under national law, and also raised an objection to the length of the Accused's pre-trial detention.52 No objection was taken by the Defence on personal jurisdiction. In its closing statement, however, the Defence contended that the ECCC lacked jurisdiction over the Accused since he was neither one of the “senior leaders” nor one of those “most responsible” for the crimes committed during the temporal jurisdiction of the ECCC.53 In particular, the Defence submitted that: the term “senior leaders” encompassed only members of the Standing Committee; the Accused was merely executing orders; and more people had died in other detention facilities than in S-21.54

22.  In its Judgement, the Trial Chamber held that the Accused failed to object to the ECCC’s personal jurisdiction over him as a preliminary objection during the Initial Hearing pursuant to Internal Rule 89(1)(a).55 In view of the belated manner in which the objection was raised, the Trial Chamber declined to admit the objection,56 but nonetheless exercised its discretion to examine the issue of personal jurisdiction ex proprio motu.57 In a footnote the Trial Chamber expressed the view that the term “senior leaders of Democratic Kampuchea and those who were most responsible” in the UN-RGC Agreement and ECCC Law “refers to two distinct categories of suspects.”58 On the apparent assumption that this term constitutes a jurisdictional requirement of the ECCC, the Trial Chamber proceeded to examine whether the Accused fell within the definition of a “senior leader” or was one of “those most responsible.” The Trial Chamber concluded that the acts and conduct of the Accused, first as Deputy and then as Chairman of S-21, placed him amongst those who were “most responsible” for the crimes committed by the DK regime during the temporal jurisdiction of the ECCC,59 and that it was unnecessary to determine whether, in addition, the Accused qualified as a “senior leader” of the DK.60

1.  Submissions of the Parties

23.  The Accused contends that the Trial Chamber had no personal jurisdiction over him, and accordingly his conviction and sentence ought to be set aside by the Supreme Court Chamber. The Accused submits that, within the political structure established in the DK, neither his operational responsibilities nor the duties he performed bring him within the description of a “senior leader” of the DK during the period from 17 April 1975 to 6 January 1979.61 He further submits that the Trial Chamber erred in concluding that he was one of “those who were most responsible” for the crimes committed during the temporal jurisdiction of the ECCC62 and that the Trial Chamber's findings amount to an error of law reviewable by the Supreme Court Chamber. On a proper application of the law, the Accused argues that the Co-Investigating Judges had no jurisdiction to indict him, and the Trial Chamber lacked jurisdiction to try him for the crimes for which he was allegedly found responsible. He submits that in consequence of this fundamental jurisdictional error, the Supreme Court Chamber should allow his appeal and quash his conviction and sentence. Fundamental to the Accused's submissions is the proposition that the term “senior leaders of Democratic Kampuchea and those who were most responsible” lays down a jurisdictional requirement proof of which is necessary to found the Trial Chamber's jurisdiction over the Accused.63

24.  The Co-Prosecutors, in their Response, argue that the Accused’s appeal on personal jurisdiction is inadmissible since his Notice of Appeal and Appeal fail to meet the minimum standards of pleading laid down by Internal Rule 105 and comparative international practice on appeal proceedings in criminal cases.64 Without prejudice to this submission, the Co-Prosecutors also submit that: the Trial Chamber was entitled to reject the Defence submission on personal jurisdiction as untimely;65 the Trial Chamber was right to conclude that the term “senior leaders of Democratic Kampuchea and those who were most responsible” refers to two distinct categories of suspects; 66 and the Trial Chamber was right to conclude that it had personal jurisdiction over the Accused on the basis of his status as one of those “most responsible” for the crimes committed during the temporal jurisdiction of the ECCC.67 In their written pleadings the Co-Prosecutors did not challenge the assumption of the Trial Chamber that the term amounts in law to a jurisdictional requirement of the ECCC.

25.  Civil Parties Group 3 also responded to the Defence Appeal, submitting that the Accused’s appointment as Deputy Director and then Director of S-21 “by one of the permanent members of the Central Committee during the period in question, on account of his experience in managing the M-13 Detention Centre where he won the permanent member's trust” is “proof that he believed in the regime and had the qualities of ‘the best interrogator’.”68 Civil Parties Group 3 also submits that the Defence failed to formally and properly object to the Trial Chamber’s jurisdiction over the Accused, 69 and requests the Supreme Court Chamber to reject all the arguments in the Defence Appeal as “manifestly unfounded.”70

26.  In its scheduling order for the hearing of the present appeals, the Supreme Court Chamber invited the Appellants to make oral submissions on the question of whether the term “senior leaders of Democratic Kampuchea and those who were most responsible” “constitutes a jurisdictional requirement that is subject to judicial review, or is a guide to the discretion of the Co-Prosecutors and Co-Investigating Judges that is not subject to judicial review.”71 At the Appeal Hearing, the Defence made no submissions directly addressing this particular question of law. The Co-Prosecutors, in oral argument, submitted that the term does not amount to a jurisdictional requirement reviewable by the Trial Chamber.72

2.  Discussion

27.  The Supreme Court Chamber will address the Co-Prosecutors’ submissions that the Accused's ground of appeal on personal jurisdiction should be declared inadmissible because the jurisdictional objection was not taken at the appropriate stage of the proceedings before the Trial Chamber, as required by Internal Rule 89(1)(a), and was accordingly out of time, and/or because the Defence Notice of Appeal and Appeal fail to meet the standards of pleading required by Internal Rule 105.

3.  Preliminary Objections under Internal Rule 89

28.  At the material time, Internal Rule 89(1)(a) provided that “[a] preliminary objection concerning the jurisdiction of the Chamber […] shall be raised in the initial hearing, failing which it shall be inadmissible.” 73 The primary purpose of this provision is to provide parties, and especially the accused, with a procedural opportunity to avoid trial on the basis of a want of jurisdiction of the Trial Chamber. The provision thus promotes the orderly and efficient administration of justice by allowing questions of jurisdiction to be definitively determined before trial, thereby avoiding the waste of effort and expense that would otherwise be involved in embarking on a trial which the Trial Chamber has no jurisdiction to conduct.74

29.  Preliminary objections to jurisdiction are generally to be determined on the face of an indictment.75 Yet it does not follow that every jurisdictional objection can be finally determined as a preliminary issue before the commencement of trial. Where a jurisdictional objection depends upon the Trial Chamber's findings of fact, it will be premature to expect the Trial Chamber to rule upon such an objection before all the evidence has been heard. This is recognised in Internal Rule 89(3), which provides that the Trial Chamber may issue its decision on an objection to jurisdiction at the time of judgement. In such a situation, the rationale for the duty imposed by Internal Rule 89(1)(a) — to avoid an unnecessary trial — ceases to be relevant, since it is the trial process itself that provides the essential evidentiary foundation for the determination of the jurisdictional objection.

30.  Furthermore, Internal Rule 89(1)(a) does not refer to all objections to the jurisdiction of the Trial Chamber, but only those which are raised as “preliminary objections” to jurisdiction. The concept of a preliminary objection to jurisdiction must be understood, firstly, according to the knowledge of the parties. Internal Rule 89(1)(a) presupposes that parties are able to discover the alleged lack of jurisdiction by the prescribed deadline. Practically, Internal Rule 89(1)(a) may thus be utilised to deal with an alleged lack of jurisdiction that is patent, but not with an alleged lack of jurisdiction that is latent. A patent lack of jurisdiction refers to a lack of jurisdiction that is apparent on the face of the proceedings before the deadline in Internal Rule 89(1). A latent lack of jurisdiction refers to a lack of jurisdiction that is not apparent on the face of the proceedings and therefore not discoverable before the deadline in Internal Rule 89(1).76

31.  Secondly, the concept of a preliminary objection to jurisdiction must be understood in relation to the nature of the jurisdictional defect being challenged. The alleged lack of jurisdiction may be of the kind that does not preclude proceedings in limine, such as, for example, another court is competent to try the case. The parties might then be restricted from raising objections to such jurisdictional defects after the commencement of the trial (or another statute-prescribed deadline). The reason for this restriction is that the parties are deemed to have submitted to the jurisdiction of the court while the defect has been cured by virtue of the advancement of proceedings. If, however, the alleged want of jurisdiction would, if successful, nullify the proceedings, the parties may raise an objection to such jurisdictional defects at any time in the proceedings, including for the first time on appeal. While Cambodian criminal procedure is silent on this distinction in jurisdictional defects,77 French law, which can be used to interpret Cambodian law, indicates that the deadline in Internal Rule 89(1) should not apply to objections to jurisdiction that could nullify the proceedings.78 Whether an accused falls within the ECCC’s personal jurisdiction, like objections to the subject matter, territorial, and temporal jurisdictions of the ECCC, is clearly an absolute jurisdictional element. The Trial Chamber’s duty to entertain objections to absolute jurisdictional elements ensures that any such objections can be properly considered in a case where an unduly restrictive interpretation of Internal Rule 89(1)(a) would otherwise result in the objection being declared inadmissible.

32.  This limited application of Internal Rule 89(1)(a) also derives from the overriding duty of the ECCC as provided for in Internal Rule 21(1):

The applicable […] Internal Rules […] shall be interpreted so as to always safeguard the interests of […] Accused […] and so as to ensure legal certainty and transparency of proceedings, in light of the inherent specificity of the ECCC, as set out in the ECCC Law and the Agreement. In this respect:

  1. a)  ECCC proceedings shall be fair and adversarial and preserve a balance between the rights of the parties […].

33.  Two overriding principles emerge when Internal Rule 89(1)(a) is interpreted so as to safeguard the interests of an accused and to respect that ECCC proceedings shall be fair and adversarial and preserve a balance between the rights of the parties. First, Internal Rule 89(1)(a) cannot reverse the burden of proof in criminal proceedings before the ECCC. The Co-Prosecutors bear the burden of proving the guilt of an accused, and accused persons enjoy the right to be presumed innocent until proven guilty.79 Thus, Internal Rule 89(1)(a) cannot be interpreted so as to force an accused to assist the Co-Prosecutors’ case against him/her by providing early notice of jurisdictional deficiencies that could nullify the trial. Second, the accused’s right to remain silent includes the right to decide at which time s/he will raise an objection to the jurisdiction of the Trial Chamber that could nullify the trial. While an accused will likely have legal interest in raising such an objection as a preliminary matter in order to avoid the trial, he cannot be penalized for deciding to withhold the raising of the objection until a time that s/he sees fit. If, for example, near the close of trial proceedings, an accused raises an objection to a want of jurisdiction that could nullify the trial, the law applicable before the ECCC precludes the Trial Chamber from not entertaining the objection solely because the deadline in Internal Rule 89(1) has elapsed.

34.  The above interpretation of Internal Rule 89(1)(a) must also be considered alongside the inherent duty of the Trial Chamber to satisfy itself at all times that it has jurisdiction to try an accused. There may be situations in which an issue arises as to the Trial Chamber's jurisdiction at some stage subsequent to the deadline prescribed in Internal Rule 89(1). Such an issue may be raised by the parties or by the Court ex proprio motu. If, at any stage of the proceedings, the Trial Chamber becomes aware that it may be acting in excess of its jurisdiction, then it must examine the issue and satisfy itself that it has jurisdiction to proceed. A competent court is a prerequisite to a fair trial. To proceed without jurisdiction would strike at the root of the ECCC's mandate, and would deprive the Trial Chamber of its legal authority to try an accused person. Accordingly, a party’s failure to raise an objection to the jurisdiction of the Trial Chamber does not give the Trial Chamber jurisdiction that it did not already possess. The Trial Chamber must satisfy itself that it has jurisdiction even though a jurisdictional objection was not raised either as a preliminary issue or during the trial proceedings.

35.  In summary, Internal Rule 89(1)(a) creates a procedural framework with which all parties, including accused persons, must comply in order to avoid proceeding to trial. The procedural consequence of not raising the objection pursuant to Internal Rule 89(1)(a) is that it precludes the disposing of the jurisdictional issue without the trial. However, Internal Rule 89(1)(a) is of limited application. An accused has the right to raise an objection to a patent or latent lack of jurisdiction that could nullify the trial at whatever time s/he decides safeguards his/her interests. In accordance with Internal Rule 89(3), the Trial Chamber must entertain any and all such objections to jurisdiction raised by an accused person “at the same time as the judgment on the merits” at the latest. Even if no party raises an objection to the jurisdiction of the Trial Chamber, the Trial Chamber must still satisfy itself that it possesses jurisdiction over the case before it in order to enter a judgement on the merits.

36.  In the present case, the Trial Chamber rejected the Accused’s objection to the ECCC’s personal jurisdiction raised in the Defence’s closing statement on the ground that it did not comply with Internal Rule 89(1)(a).80 The Trial Chamber proceeded ex proprio motu to satisfy itself that it had personal jurisdiction over the Accused.81 The Trial Chamber’s position toward the Accused’s jurisdictional objection is thus marked by equivocation. On the one hand, it seemed to acknowledge its duty to examine the jurisdiction issue ex proprio motu, while, on the other hand, it interpreted Internal Rule 89(1)(a) so as to render the Accused’s jurisdictional objection inadmissible. As explained in the preceding paragraphs, Internal Rule 21(1) requires that any equivocation arising from an interpretation of Internal Rule 89(1)(a) be resolved in the direction of the right of accused persons to decide when to raise a patent or latent lack jurisdictional objection that could nullify the trial and the Trial Chamber’s duty to ascertain its jurisdiction. The Trial Chamber failed to subject its interpretation of Internal Rule 89(1)(a) to Internal Rule 21(1) and failed to consider whether the alleged lack of jurisdiction was patent or latent, or whether it could nullify the trial. Such failures constitute an error of law that invalidates the Trial Chamber’s decision to not entertain the Accused’s objection. While the Trial Chamber’s decision to confirm its jurisdiction ex proprio motu does not eliminate the legal error made by the Trial Chamber, it cures its effect in that it enabled the filing of an informed appeal by the Accused.

37.  The Supreme Court Chamber also notes that nothing in the Internal Rules suggests that an accused’s failure to comply with an Internal Rule that is specific to trial proceedings limits the scope of his/her appeal against a trial judgement. Nor could the Internal Rules ever be interpreted otherwise, for the Accused was convicted of a crime and therefore has “the right to his conviction and sentence being reviewed by a higher tribunal according to law.”82 On the basis of this right, the Accused is entitled to appeal against any alleged error of law or fact that may invalidate the Trial Judgement or constitute a miscarriage of justice, respectively, including the Trial Chamber’s decision on personal jurisdiction. 83 The Accused's appeal on personal jurisdiction satisfies both limbs of this test since it involves a mixed question of law and fact, which, if correct, would nullify the lawful basis for his conviction. Moreover, the Supreme Court Chamber has inherent power to satisfy itself that the Trial Chamber had jurisdiction to try the Accused, and therefore to review the Trial Chamber's conclusions on jurisdiction. 84 If the Accused had not appealed the jurisdictional issue, the Supreme Court Chamber would exercise that power in the present case since the issue is one of general importance to the jurisprudence and jurisdiction of the ECCC and it plainly has a sufficient nexus to the arguments raised before the Trial Chamber and in the present appeal.

38.  The Supreme Court Chamber therefore rejects the submissions of the Co-Prosecutors that the Defence appeal on personal jurisdiction is inadmissible on the basis that he failed to comply with Internal Rule 89(1).

4.  Standard of Appellate Pleading

39.  The Supreme Court Chamber will next examine the Co-Prosecutors’ submission that many of the Accused’s appeal submissions should be declared inadmissible since his Notice of Appeal and Appeal fail to meet the minimum standards of pleading laid down by Internal Rule 105 and comparative international practice on appeal proceedings in criminal cases.85 In particular, the Co-Prosecutors submit that the Accused’s pleadings: fail to make sufficient references to identified portions of the transcript of proceedings before the Trial Chamber; make “obscure, contradictory, vague or otherwise insufficient arguments”; criticise the Trial Chamber’s reasoning without substantiation or argument to the alleged error; and include misstatements of law and fact.86

40.  The Internal Rules relevant to deciding the Co-Prosecutors’ submissions are reproduced below:

  1. 105 

    1. (3).  A party wishing to appeal a judgment shall file a notice of appeal setting forth the grounds. The notice shall, in respect of each ground of appeal, specify the alleged errors of law invalidating the decision and alleged errors of fact which occasioned a miscarriage of justice. The appellant shall subsequently file an appeal brief setting out the arguments and authorities in support of each of the grounds, in accordance with paragraphs 2(a) and (c) of this Rule.

    2. (4).  Appeals shall identify the findings or ruling challenged, with specific reference to the page and paragraph numbers of the decision of the Trial Chamber.

  2. 111 

    1. (2).  Where the Chamber finds that an appeal was filed late, or was otherwise procedurally defective, it may declare the appeal inadmissible.

41.  These provisions require the parties to an appeal to plead their case with adequate specificity to enable the Supreme Court Chamber to identify the issues in dispute by reference to specific findings of the Trial Chamber. They are aimed not only at ensuring procedural efficiency, but also that each party knows the arguments it may respond to. As the ICTY has observed in relation to comparable provisions in its rules of procedure, an appellate court “cannot be expected to consider a party's submissions in detail if they are obscure, contradictory, vague or suffer from other formal and obvious insufficiencies.”87 As a general rule, an appellant is required to identify the portions of the transcript under challenge, to identify with a reasonable degree of precision the submissions addressed to the Trial Chamber on the point, and to set out clearly and transparently the grounds of appeal against the decision and the principal arguments in support.88 Where a party's pleadings are incoherent, or fail to set out the substance of any ground of appeal with sufficient particularity to enable the Supreme Court Chamber to identify the issues in dispute, they may be declared inadmissible as being procedurally defective.89 The word “may” in Internal Rule 111(2) indicates that the power therein is discretionary. The Supreme Court Chamber’s overriding consideration in the exercise of its discretion is to preserve the right of a convicted person to appeal his conviction and sentence. It is not the function of the Supreme Court Chamber to scrutinize the quality of a convicted person’s written appellate advocacy.

42.  In this case, the core issues arising for decision under the Accused's appeal on personal jurisdiction are relatively easy to identify. In substance, the Accused: (a) implicitly submits that the term “senior leaders of Democratic Kampuchea and those who were most responsible” constitutes a jurisdictional requirement of the ECCC; and (b) explicitly submits that on the facts established he was neither a “senior leader” nor one of those “most responsible” for the crimes committed by the DK regime during the temporal jurisdiction of the ECCC. Similarly, the operative passages of the Trial Judgement are readily identifiable, and set out with clarity the reasoning that led it to the conclusion that the Accused is one of those “most responsible.” 90 In these particular circumstances, the Supreme Court Chamber is able to consider the merits of the present ground of appeal and to review the reasoning of the Trial Chamber in light of the arguments put forward on behalf of the Accused, Co-Prosecutors, and Civil Parties Group 3. This is not to be taken to imply that the Supreme Court Chamber will regard departure from Internal Rule 105 with indifference. The pleading requirements laid down by that Rule are clear and mandatory, and the Supreme Court Chamber will not hesitate, in appropriate circumstances, from exercising its power under Internal Rule 111(2) to declare inadmissible an argument in a pleading that is procedurally defective due to incoherence or lack of specificity. The decisive question will always be whether an appellant has pleaded his case in a manner that enables an opposing party to know the case it has to meet, and enables the Supreme Court Chamber to identify and rule upon the issues in dispute. Whether that test is met will depend on the circumstances and, in particular, on the nature of the challenge to the Trial Chamber's judgement.

43.  The Supreme Court Chamber therefore rejects the submissions of the Co-Prosecutors that the Accused’s appeal on personal jurisdiction is inadmissible on the basis that his written pleadings fail to comply with the Internal Rules.

5.  Personal Jurisdiction

44.  The issue of the personal jurisdiction of the ECCC is at the core of the Defence Appeal.91 The Accused’s request for acquittal on the basis that he is not covered by the term “senior leaders of Democratic Kampuchea and those who were most responsible” presupposes the entire or part of the term constitutes a jurisdictional requirement of the ECCC that must be satisfied in order for the Trial Chamber to try the Accused. If this presupposition is correct, and if the Accused is not covered by the term, then the Trial Chamber had no jurisdiction to try him, and, consequently, his conviction and sentence are invalidated and he must be unconditionally released immediately.92 In deciding the Accused’s appeal, it is therefore necessary for the Supreme Court Chamber to evaluate the term “senior leaders of Democratic Kampuchea and those who were most responsible” to determine whether all or part of it constitutes a jurisdictional requirement of the ECCC. Firstly, however, the Supreme Court Chamber will address the dispute between the parties as to whether the term “senior leaders of Democratic Kampuchea and those who were most responsible” refers to one or two categories of persons.93

a.  Scope of “Senior Leaders of Democratic Kampuchea and Those Who Were Most Responsible”

45.  The Accused argues that the term refers to only one category of persons, namely, senior leaders who are most responsible.94 According to the Accused, since he was not a senior leader of the DK, he is not covered by the term and must be acquitted and released forthwith.95 The Co-Prosecutors,96 Co-Investigating Judges,97 and the Trial Chamber98 interpreted the “and” in the term disjunctively, such that the term refers to two separate categories of persons, namely, senior leaders or those most responsible.

46.  A first step to interpreting the scope of the term “senior leaders of Democratic Kampuchea and those who were most responsible” is to review the history of the negotiations relating to the intended targets for criminal prosecution before the ECCC. In a letter dated 21 June 1997, the First and Second Prime Ministers of Cambodia wrote to the Secretary General of the United Nations asking “for the assistance of the United Nations and the international community in bringing to justice those persons responsible for the genocide and crimes against humanity during the rule of the Khmer Rouge from 1975 to 1979.”99 While their request did not explicitly mention the Khmer Rouge as the intended targets of such justice, the Secretary General of the United Nations later summarized this request for assistance as “[t]he initial Cambodian request for United Nations assistance in bringing Khmer Rouge leaders to trial.”100

47.  In its Resolution 52/135 adopted on 12 December 1997, the General Assembly of the United Nations stated that it:

  1. 15.  Endorses the comments of the Special Representative that the most serious human rights violations in Cambodia in recent history have been committed by the Khmer Rouge and that their crimes, including the taking and killing of hostages, have continued to the present, and notes with concern that no Khmer Rouge leader has been brought to account for his crimes;

  2. 16.  Requests the Secretary-General to examine the request by the Cambodian authorities for assistance in responding to past serious violations of Cambodian and international law, including the possibility of the appointment, by the Secretary-General, of a group of experts to evaluate the existing evidence and propose further measures, as a means of bringing about national reconciliation, strengthening democracy and addressing the issue of individual accountability.101

48.  In July 1998, the Secretary-General created the Group of Experts for Cambodia with the following mandate:

  1. (a)  To evaluate the existing evidence with a view to determining the nature of the crimes committed by Khmer Rouge leaders in the years from 1975 to 1979;

  2. (b)  To assess, after consultation with the Governments concerned, the feasibility of bringing Khmer Rouge leaders to justice and their apprehension, detention and extradition or surrender to the criminal jurisdiction established;

  3. (c)  To explore options for bringing to justice Khmer Rouge leaders before an international or national jurisdiction.102

49.  The Group of Experts understood the mandate given to them by the Secretary General as follows:

[T]he mandate is limited to the acts of the Khmer Rouge and not those of any other persons or, indeed, States, that may have committed human rights abuses in Cambodia before, during, or after the period from 1975 to 1979. This mandate was based on the request of the Cambodian Government quoted above. The Group endorses this limitation as focusing on the extraordinary nature of the Khmer Rouge’s crimes.103

50.  Accordingly, the Group of Experts recommended “that, in response to the request of the Government of Cambodia of 21 June 1997, the United Nations establish an ad hoc international tribunal to try Khmer Rouge officials for crimes against humanity and genocide committed from 17 April 1975 to 7 January 1979.”104

51.  The historical record demonstrates that the Royal Government of Cambodia also intended that the Khmer Rouge would be the exclusive targets for criminal prosecution before the ECCC.105

52.  In light of the above historical review, the Supreme Court Chamber finds that, at a minimum, the term “senior leaders of Democratic Kampuchea and those who were most responsible” reflects the intention of the United Nations and the Royal Government of Cambodia to focus finite resources on the criminal prosecution of certain surviving officials of the Khmer Rouge. The Supreme Court Chamber also finds that the term excludes persons who are not officials of the Khmer Rouge.

53.  The Supreme Court Chamber will now examine whether the term refers to one or two categories of surviving Khmer Rouge officials. The drafting histories of the UN-RGC Agreement and ECCC Law provide a clear answer to this question. During the debate in the Cambodian National Assembly on the UN-RGC Agreement and amendments to the 2001 ECCC Law, H.E. Deputy Prime Minister Sok An explained the scope of the term “senior leaders of Democratic Kampuchea and those who were most responsible” as follows:

[…] Article 2 [of the draft ECCC Law] has been prepared with full attention and clearly defined targets, which refer to senior leaders. However, there is another point of view concerning those who were not the senior leaders, but who committed crimes as serious as those of the senior ones and will also be the targets of the EC. With regard to this matter, I would like to reconfirm, as His Excellency Ly Thuch mentioned yesterday, that there are two types of targets: senior leaders who are the most important targets of the EC and some others who might not be senior leaders but their actions were much more serious, and there is enough evidence to prove that they really committed much more serious crimes than others.

[…].

Considering senior leaders, we refer to no more than 10 people, but we don’t specify that they be members of the Standing Committee. This is the task of the Co-Prosecutors […]. However, there is still the second target. They are not the leaders, but they committed atrocious crimes. That’s why we use the term those most responsible. There is no specific amount of people to be indicted from the second group. Those committing atrocious crimes will possibly be indicted.106

54.  Similarly, the Group of Experts for Cambodia concluded the following in their Report:

[T]he Group does not believe that the term [Khmer Rouge] “leaders” should be equated with all persons at senior levels of Government of Democratic Kampuchea or even of the Communist Party of Kampuchea. The list of top governmental and party officials may not correspond with the list of persons most responsible for serious violations of human rights in that certain top governmental leaders may have been removed from knowledge and decision-making; and others not in the chart of senior leaders may have played a significant role in the atrocities. This seems especially true with respect to certain leaders at zonal level, as well as officials of torture and interrogation centres such as Tuol Sleng.107

55.  The Group of Experts accordingly recommended that “any tribunal focus upon those persons most responsible for the most serious violations of human rights during the reign of the Democratic Kampuchea. This would include senior leaders with responsibility over the abuses as well as those at lower levels who are directly implicated in the most serious atrocities.”108

56.  Professor David Scheffer, who played an instrumental role in the creation of the ECCC as the U.S. Ambassador at Large for War Crimes Issues (1997-2001), also recently explained:

It is important to recognize that by this time (January 2000), Duch already had been in custody for more than six months and was a constant reference point for the negotiators as a likely defendant. The assumption that Duch would appear before the ECCC held firm throughout subsequent years of negotiations. Furthermore, at no point did negotiators state to each other that any suspect must be both a senior leader of Democratic Kampuchea and an individual most responsible for the serious violations. That would have been an illogical position to take. Such a view would have been open to immediate challenge by negotiators, as we wanted to make sure that individuals like Duch who might not be among the senior Khmer Rouge leaders but were responsible for large scale commission of atrocity crimes would be eligible for investigation and prosecution by the ECCC. Both groups—the group of senior leaders and the group of those most responsible for the crimes—were to fall within the tribunal’s personal jurisdiction. I do not recall a single suggestion otherwise.

[…].

Nonetheless, we would have been denying, or at least suggesting the denial of, the major responsibility of the senior Khmer Rouge leaders if we had used the disjunctive “or” and thus de-linked leadership identity completely from responsibility identity. That would have been unfair to those senior Khmer Rouge leaders who may not have exercised significant responsibility for the atrocity crimes and yet would be subject to the tribunal’s jurisdiction solely by virtue of their leadership positions.109

57.  The Supreme Court Chamber finds that the above drafting history demonstrates that the term “senior leaders of Democratic Kampuchea and those who were most responsible” refers to two categories of Khmer Rouge officials that are not dichotomous. One category is senior leaders of the Khmer Rouge who are among the most responsible,110 because a senior leader is not a suspect on the sole basis of his/her leadership position. The other category is non-senior leaders of the Khmer Rouge who are also among the most responsible. Both categories of persons must be Khmer Rouge officials and among the most responsible, and, pursuant to Article 2 new of the UN-RGC Agreement, both are “suspects” subject to criminal prosecution before the ECCC.

b.  Evaluation of the Term “Senior Leaders of Democratic Kampuchea and Those Who Were Most Responsible”

58.  The Supreme Court Chamber will now evaluate whether the entire or part of the term “senior leaders of Democratic Kampuchea and those who were most responsible” constitutes a jurisdictional requirement of the ECCC that must be satisfied in order for the Trial Chamber to try an accused.

59.  Pursuant to Article 31(1) of the Vienna Convention on the Law of Treaties, the term “senior leaders of Democratic Kampuchea and those who were most responsible” “shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty [i.e., the UN-RGC Agreement111] in their context and in the light of its object and purpose.”112 When the interpretation according to Article 31 “leads to a result which is manifestly absurd or unreasonable,” Article 32 of the Vienna Convention permits “[r]ecourse […] to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to […] determine the meaning.”113 The Supreme Court Chamber may also seek guidance in international jurisprudence on comparable provisions in other jurisdictions. 114 The Supreme Court Chamber therefore must evaluate the term “senior leaders of Democratic Kampuchea and those who were most responsible” using these canons of interpretation.

60.  Beginning with the immediate textual context of the UN-RGC Agreement, Article 2(1) reads, “The present Agreement […] recognises that the Extraordinary Chambers have personal jurisdiction over senior leaders of Democratic Kampuchea and those who were most responsible for the crimes referred to in Article 1 of the Agreement” (emphasis added). The inclusion of the words “personal jurisdiction” in Article 2(1) suggests that the term “senior leaders of Democratic Kampuchea and those who were most responsible” operates exclusively as a legal requirement of the Trial Chamber’s jurisdiction over an accused. However, the Supreme Court must also consider whether interpreting the term “senior leaders of Democratic Kampuchea and those who were most responsible” as a jurisdictional requirement of the ECCC is consistent with the object and purpose of the UN-RGC Agreement and whether such an interpretation would lead to a “manifestly absurd or unreasonable” result. As explained above, the term refers to both senior leaders of the Khmer Rouge who are among the most responsible as well as to non-senior leaders of the Khmer Rouge who are also among the most responsible. The shared characteristics of these two categories are that suspects must be Khmer Rouge officials and among the most responsible. The unique characteristic of the first category is that the suspects are also senior leaders. The Supreme Court Chamber will proceed by evaluating each of these three terms to determine whether they can reasonably be interpreted as jurisdictional requirements of the ECCC.

i.  Khmer Rouge Official

61.  Each suspect before the ECCC must be a Khmer Rouge official. This term involves a question of historical fact that is intelligible, precise, and leaves little or no room for the discretion of the Trial Chamber. While an accused might contest that s/he was a Khmer Rouge official, the Trial Chamber is well suited to decide this factual issue. Thus, the Supreme Court Chamber finds that the personal jurisdiction of the ECCC covers Khmer Rouge officials, and the question of whether an accused was a Khmer Rouge official is justiciable115 before the Trial Chamber.

ii.  Most Responsible

62.  The second shared characteristic of suspects before the ECCC is that they should be among those most responsible for the crimes referred to in Article 1 of the UN-RGC Agreement. As the Trial Chamber noted, neither the UN-RGC Agreement nor ECCC Law defines “most responsible.” 116 The ordinary meaning of “most responsible” denotes a degree of criminal responsibility in comparison to all Khmer Rouge officials responsible for crimes within the ECCC’s jurisdiction. Contrary to the term “Khmer Rouge official,” interpreting the term “most responsible” as a jurisdictional requirement of the ECCC would be inconsistent with the object and purpose of the UN-RGC Agreement and would lead to an unreasonable result for the following reasons. First, there is no objective method for the Trial Chamber to decide on, compare, and then rank the criminal responsibility of all Khmer Rouge officials. Second, the notion of comparative criminal responsibility is inconsistent with Article 29 of the ECCC Law, which states, “[t]he position or rank of any Suspect shall not relieve such person of criminal responsibility or mitigate punishment.” This provision also expressly confirms the principle that superior orders do not constitute a defence to the crimes set out in Chapter II of the ECCC Law. The Accused, in effect, submits that the Trial Chamber is required to embark upon a relative assessment of his criminal responsibility within the DK. This would amount to indirectly permitting a defence of superior orders and would frustrate the express provisions of the ECCC Law, including Article 29. The third indication that “most responsible” cannot reasonably be interpreted as a jurisdictional requirement of the ECCC is that the determination of whether an accused is “most responsible” requires a large amount of discretion. There is no discretion, for example, in determining the ECCC’s temporal and subject matter jurisdictions. Both are expressed through sharp-contoured definitions and, as such, are verifiable by a suspect and the ECCC because they involve pure questions of law or fact that are eminently suitable for legal determination. By contrast, neither a suspect nor the ECCC can verify whether a suspect is “most responsible” pursuant to sharp-contoured, abstract and autonomous criteria.

63.  For these reasons, the Supreme Court Chamber finds that it is unreasonable to interpret “most responsible” in the term “senior leaders of Democratic Kampuchea and those who were most responsible” as a jurisdictional requirement of the ECCC. There are many indications, on the other hand, that the term “most responsible” should be interpreted as investigatorial and prosecutorial policy for the Co-Investigating Judges and Co-Prosecutors that is not justiciable before the Trial Chamber.

64.  Chief of these latter indications is the competence afforded to the Co-Investigating Judges and Co-Prosecutors. The Co-Investigating Judges are responsible for the conduct of investigations 117 and are required to be independent in the performance of their functions.118 Article 5(3) of the UN-RGC Agreement provides that it is “understood” that “the scope of the investigation is limited to senior leaders of Democratic Kampuchea and those who were most responsible for the crimes […] that were committed during the period from 17 April 1975 to 6 January 1979.” Thus, the Co-Investigating Judges are vested with authority to determine whether a particular investigation falls within the scope of the term “most responsible.”119 The Co-Prosecutors are responsible for the conduct of prosecutions.120 They, too, are required to be independent in the performance of their functions,121 and are subject to an identically worded “understanding” in Article 6(3) of the UN-RGC Agreement to the effect that “the scope of the prosecution is limited to senior leaders of Democratic Kampuchea and those who were most responsible.” 122 It follows that the Co-Prosecutors are also vested with authority to determine whether a particular prosecution falls within the scope of the term “most responsible.”123

65.  The Pre-Trial Chamber’s role in settling disagreements between the two Co-Prosecutors or between the two Co-Investigating Judges does not alter the conclusion that the term “most responsible” is not a jurisdictional requirement of the ECCC. In a disagreement case filed under Internal Rule 71 or 72 where the reason for disagreement on the execution of an action, decision, or order is whether or not a suspect or charged person is a “senior leader” or “most responsible,” the Pre-Trial Chamber’s role would be to settle the specific issue upon which the Co-Investigating Judges or Co-Prosecutors disagree.124 If, for example, the Pre-Trial Chamber decides that neither Co-Investigating Judge erred in proposing to issue an Indictment or Dismissal Order for the reason that a charged person is or is not most responsible, and if the Pre-Trial Chamber is unable to achieve a supermajority on the consequence of such a scenario, “the investigation shall proceed.”125

66.  As stated above, the Supreme Court Chamber may also consult international jurisprudence and the drafting history of the UN-RGC Agreement as guidance in evaluating the term “most responsible.” Turning first to the preparatory work, the Group of Experts for Cambodia recommended interpreting the term “most responsible” not as a jurisdictional requirement of the ECCC but rather as investigatorial and prosecutorial policy. Writing in 1999, the Experts recommended that “any tribunal focus upon those persons most responsible for the most serious violations of human rights during the reign of Democratic Kampuchea.” 126 The Experts “believe[d]” that:

[This] sense of the scope of investigations should be no more than a guide for prosecutors and not form an element of the jurisdiction of any tribunal. Thus, any legal instrument related to a court should give it personal jurisdiction over any persons whose acts fall within its subject matter jurisdiction, and the decision on whom to indict should rest solely with the prosecutor […].127

67.  In the “Summary of Principal Recommendations” of their Report, the Experts recommended that “as a matter of prosecutorial policy, the independent prosecutor appointed by the United Nations limit his or her investigations to those persons most responsible […].”128

68.  The Experts’ Report forms an important part of the travaux préparatoires to the UN-RGC Agreement and the ECCC Law, and is consistent with the terms of these instruments.

69.  Furthermore, a close comparison of the ICTY and ICTR with the ECCC militates in favour of treating the term “most responsible” as investigatorial and prosecutorial policy rather than a jurisdictional requirement of the ECCC. Before an Indictment is confirmed at the ICTY, it must first be scrutinised by a Bureau consisting of the President, the Vice President and the Presiding Judges of the Trial Chambers. Though the ICTY’s jurisdiction extends to all “persons responsible for serious violations of international humanitarian law,” Rule 28(A) of the Rules of Procedure and Evidence requires the Bureau to determine whether, prima facie, the indictment “concentrates on one or more of the most senior leaders suspected of being most responsible for crimes within the jurisdiction of the Tribunal.”129 Only where the indictment appears to concentrate on such a person will it be transmitted to a single judge for confirmation. If not, the indictment will be returned to the Prosecutor. Likewise, Rule 28 of the ICTR’s Rules of Procedure and Evidence requires a duty judge, selected by the President of the Tribunal, to review indictments submitted from the Prosecutor.130 The inclusion of these provisions at the ICTY and ICTR does not restrict the Trial Chambers’ jurisdiction to try an accused, however, as an accused cannot object to lack of jurisdiction based on a failure to satisfy the requirements of Rule 28(A) at the ICTY or Rule 28 at the ICTR. In granting the ICTY and ICTR Chambers large discretion in determining which suspects to prosecute, these rules operate as policy guidelines intended to help the tribunals concentrate their scarce resources on trying the most serious cases falling within their jurisdiction.

70.  Similarly, the ECCC’s Co-Investigating Judges are responsible for “either indicting a Charged Person and sending him or her to trial, or dismissing the case,” and “are not bound by the Co-Prosecutors’ submissions.”131 Pursuant to the UN-RGC Agreement, “It is understood, however, that the scope of the investigation is limited to senior leaders of Democratic Kampuchea and those who were most responsible.”132 As at the ICTY and ICTR, an accused before the ECCC cannot object to the Trial Chamber’s jurisdiction on the basis that the Co-Investigating Judges did not limit the indictment to “senior leaders” or the “most responsible”,133 absent a showing that the Co-Investigating Judges abused their discretion, as discussed below. This limitation on the Co-Investigating Judges’ discretion is intended to help the ECCC concentrate its scarce resources on trying the most serious cases falling within its jurisdiction.

71.  The referral system at the ICTY also suggests that the term “most responsible” in the UN-RGC Agreement and ECCC Law operates as investigatorial and prosecutorial policy rather than a jurisdictional requirement of the ECCC. ICTY judges have authority to refer cases to national courts, whereas the ECCC exists within the Cambodian legal system in which it exercises exclusive jurisdiction and no referral to another court is possible. Under the ICTY system, individuals who are found not to constitute one of the most serious perpetrators of international crimes may be tried instead by a national court. The Rules of Procedure and Evidence of the ICTY establish a procedure whereby a case can be referred to national authorities134 at any time after the indictment has been confirmed and prior to the commencement of trial. To that end, Rule 11bis(A) allows the President of the Tribunal to appoint three judges from the Trial Chambers to a Referral Bench which then decides whether to carry out the referral. 135 The ICTY thus operates on the presumption of dual jurisdiction, providing a mechanism for allocating cases between the international tribunal and appropriate national jurisdictions. The criteria for such allocation, “the gravity of the crimes charged and the level of responsibility of the accused,”136 operate not as jurisdictional bars but as prosecution policy.

72.  The above interpretation of the term “most responsible” in the UN-RGC Agreement is also consistent with the jurisprudence of other international criminal tribunals. Article 1(1) of the Statute of the Special Court for Sierra Leone (“SCSL”) is strikingly similar to Article 1 of the UN-RGC Agreement. The former provision states:

The Special Court shall […] have the power to prosecute persons who bear the greatest responsibility for serious violations of international humanitarian law and Sierra Leonean law committed in the territory of Sierra Leone since 30 November 1996, including those leaders who […] have threatened the establishment and implementation of the peace process in Sierra Leone.137

73.  In Prosecutor v Brima,138 the Appeals Chamber of the SCSL held that the only workable interpretation of the term “greatest responsibility” is that “it guides the Prosecutor in the exercise of his prosecutorial discretion” and that it would be “unreasonable and unworkable to suggest that the discretion is one that should be exercised by the Trial Chamber or the Appeals Chamber at the end of the trial.”139 The SCSL Appeals Chamber continued:

In the opinion of the Appeals Chamber it is inconceivable that after a long and expensive trial the Trial Chamber could conclude that although the commission of serious crimes has been established beyond reasonable doubt against the accused, the indictment ought to be struck out on the ground that it has not been proved that the accused was one of those who bore the greatest responsibility.140

74.  In light of the above, the Supreme Court Chamber finds that, while the Trial Chamber must carefully consider all valid jurisdictional objections, it is not reasonable to interpret “most responsible” in the term “senior leaders of Democratic Kampuchea and those who were most responsible” as a jurisdictional requirement of the ECCC. Rather, the term “most responsible” constitutes investigatorial and prosecutorial policy which guides the Co-Investigating Judges and Co-Prosecutors in exercising their independent discretion in investigating and prosecuting the most serious offenders falling within the ECCC’s jurisdiction.

iii.  Senior Leaders

75.  As explained above, senior leaders who are among the most responsible is one of two categories of suspects covered by the term “senior leaders of Democratic Kampuchea and those who were most responsible.” Since the Supreme Court Chamber has concluded that the term “most responsible” operates exclusively as investigatorial and prosecutorial policy, it is not possible for the ECCC Trial Chamber to refuse jurisdiction over an indicted accused on the basis that s/he was not a senior leader. Nevertheless, the proper evaluation of “senior leaders” is of sufficient importance to ECCC jurisprudence that it warrants discussion by the Supreme Court Chamber.

76.  Like the term “most responsible,” neither the UN-RGC Agreement nor ECCC Law defines the term “senior leaders.” If “senior leaders” were limited to former members of the CPK Central and/or Standing Committees,141 that would indicate the term is a jurisdictional requirement because it would involve a precise question of historical fact concerning which the Trial Chamber is well suited to answer. However, the term “senior leaders” is sufficiently flexible that it may not necessarily be limited to former members of the CPK Central and/or Standing Committees. By contrast, the definitions of the ECCC’s temporal and subject matter jurisdictions use sharp contours, typical for legal criteria. Such flexibility inherent in the definition of “senior leaders” indicates that the term does not operate as a jurisdictional requirement of the ECCC.

77.  The debates in the Cambodian National Assembly over the UN-RGC Agreement and amendments to the 2001 ECCC Law confirm that the definition of “senior leaders” is not fixed and that the characteristic should operate as investigatorial and prosecutorial policy.142

78.  The Supreme Court Chamber therefore finds that the term “senior leaders” does not form part of the ECCC’s jurisdiction. Like the term “most responsible,” the term “senior leaders” constitutes investigatorial and prosecutorial policy that guides the Co-Investigating Judges and the Co-Prosecutors in the exercise of their discretion as to the scope of investigations and prosecutions.

iv.  Summary of Findings

79.  For the reasons set out above, the Supreme Court Chamber finds that the personal jurisdiction of the ECCC covers Khmer Rouge officials. Whether an accused is a Khmer Rouge official is therefore a justiciable issue before the Trial Chamber. The terms “senior leaders” and “most responsible” are not jurisdictional requirements of the ECCC, but operate exclusively as investigatorial and prosecutorial policy to guide the independent discretion of the Co-Investigating Judges and Co-Prosecutors as to how best to target their finite resources in order to achieve the purpose behind the establishment of the ECCC. Whether an accused is a “senior leader” or “most responsible” is therefore a nonjusticiable issue before the Trial Chamber.143

v.  Review of Investigatorial and Prosecutorial Discretion on Other Grounds

80.  A remaining question is whether there is any other ground on which the Trial Chamber has residual jurisdiction to review the exercise of discretion by the Co-Investigating Judges or the Co-Prosecutors in the selection of cases. In Prosecutor v Brima, the Appeals Chamber of the SCSL observed that in selecting cases that meet the requirements laid down in Article 1(1) of the Statute of the SCSL, the Prosecutor must exercise his discretion “in good faith, based on sound professional judgment.”144 The Supreme Court Chamber agrees. In the context of the ECCC, the Trial Chamber has the power to review the discretion of the Co-Investigating Judges and the Co-Prosecutors on the ground that they allegedly exercised their discretion under Articles 5(3) and 6(3) of the UN-RGC Agreement in bad faith or according to unsound professional judgement.145 This power of review by the Trial Chamber is extremely narrow in scope, and would have to be exercised with full respect for the independence of the Co-Investigating Judges’ and Co-Prosecutors’ offices. Such power of review could never be exercised on the ground that the Co-Investigating Judges or Co-Prosecutors did not, in the opinion of the Trial Chamber, select a particular “senior leader” or person who is “most responsible.” Provided the alleged crimes fall within the jurisdiction of the ECCC, the Co-Investigating Judges and Co-Prosecutors have a wide discretion to perform their statutory duties. As the Co-Prosecutors point out in their Response in the present appeal, the exercise of prosecutorial discretion is not a mechanical exercise. It requires the weighing of relevant factors such as the quantity and quality of evidence available, the prima facie level of culpability of the offender, the gravity of the crimes alleged, and the likelihood of apprehending the suspect. 146 Given the wide margin of discretion according to which the decision to prosecute is made, the competence to take such a decision does not belong to trial or appellate chambers that decide the merits of criminal responsibility, but stops at the pre-trial level. A trial or appellate court employing discretion as to whether or not to prosecute would assume the function of the prosecution and thus compromise its role as an impartial arbitrator in the adversarial procedure. Therefore, in the absence of bad faith, or a showing of unsound professional judgement, the Trial Chamber has no power to review the alleged abuse of the Co-Investigating Judges’ or Co-Prosecutors’ discretion under Articles 5(3) and 6(3) of the UN-RGC Agreement. Whether an accused is a senior leader or one of those most responsible is exclusively a policy decision for which the Co-Investigating Judges and Co-Prosecutors, and not the Trial Chamber, are accountable.

c.  Conclusion

81.  In light of the principles set out in this section of the present Appeal Judgement, the Trial Chamber had no need to embark upon any assessment of whether the Accused was a senior leader or one of those most responsible.147 The assessment that it nonetheless conducted demonstrates however that the case of the Accused falls squarely within these investigatorial and prosecutorial policy criteria. Accordingly, the Accused’s ground of appeal on personal jurisdiction is untenable and therefore dismissed in its entirety.148

IV.  Alleged Errors Concerning Crimes Against Humanity under Article 5 of the ECCC Law (Grounds 2 and 3 of the Co-Prosecutors’ Appeal)

82.  Under Grounds 2 and 3 of the Co-Prosecutors’ Appeal, the Co-Prosecutors submit that the Trial Chamber erred as a matter of law in several respects in its disposition of the charges of crimes against humanity brought against the Accused under Article 5 of the ECCC Law.

83.  First, under Ground 2 of their Appeal, the Co-Prosecutors contend that the Trial Chamber committed an error of law when it failed to convict the Accused for all of the crimes for which it found him responsible, namely, murder, extermination, enslavement, imprisonment, torture, rape and other inhumane acts as crimes against humanity, and subsumed those crimes under the crime against humanity of persecution on political grounds. 149 The Co-Prosecutors submit that the Trial Chamber misapplied the ICTY Appeals Chamber’s Čelebići test because each crime against humanity for which it found the Accused responsible has an element materially distinct from the crime against humanity of persecution, and therefore the Accused should have been cumulatively convicted for each.150

84.  Furthermore, the Co-Prosecutors argue that, by subsuming all these other crimes against humanity under persecution, the Trial Chamber failed to meet the twin aims of the Čelebići cumulative convictions test, as articulated by the ICTY Appeals Chamber in Prosecutor v. Kordić and Čerkez.151 Also, the Co-Prosecutors submit that the “concerns underpinning the rationale for not allowing cumulative convictions,”152 as articulated in the dissenting opinion to the Čelebići Appeals Judgement, are not applicable in this case.153 Finally, the Co-Prosecutors argue that the Trial Chamber failed to adequately consider the societal interests in cumulative convictions, as delineated by the ICTR Trial Chamber in Akayesu.154

85.  Second, the Co-Prosecutors submit under Ground 2 of their Appeal that the Trial Chamber erred as a matter of law when it characterised an instance of rape as torture as a crime against humanity and failed to convict the Accused for the distinct crime against humanity of rape.155 Finally, the Co-Prosecutors argue in Ground 3 of their Appeal that the Trial Chamber erred in law in its definition of enslavement as a crime against humanity, thereby failing to convict the Accused for the enslavement of all the detainees at S-21.156

86.  The Trial Chamber found that the Accused was individually responsible for the following crimes against humanity under Article 5 of the ECCC Law: murder, extermination, enslavement, imprisonment, torture (including one instance of rape), persecution on political grounds, and other inhumane acts.157 Nevertheless, “[i]n light of the jurisprudence regarding cumulative convictions”, the Trial Chamber solely convicted the Accused for “persecution as a crime against humanity (subsuming the crimes against humanity of extermination (encompassing murder), enslavement, imprisonment, torture (including one instance of rape), and other inhumane acts).”158

87.  At the outset, the Supreme Court Chamber observes that disposing of the arguments raised under Grounds 2 and 3 of the Co-Prosecutors’ Appeal, in particular with respect to the Trial Chamber’s application of the ICTY Čelebići test, requires comparisons of the elements of the crimes against humanity for which the Trial Chamber found the Accused responsible. Consequently, the disposition of these grounds of appeal is necessarily predicated upon the Supreme Court Chamber’s examination of the ECCC’s subject matter jurisdiction and the appropriateness of the definitions of the crimes at issue that were used by the Trial Chamber. Such examination requires application of the nullum crimen sine lege principle, also known as the principle of legality, codified under Article 33 new of the ECCC Law.

88.  Therefore, before turning to consider the specific issues raised by the Co-Prosecutors under these grounds of appeal, the Supreme Court Chamber will, ex proprio motu, firstly articulate the applicable law with respect to the principle of legality. It will then examine, to the extent necessitated by the appeal before it, the scope of the ECCC’s subject matter jurisdiction over crimes against humanity generally under Article 5 of the ECCC Law in light of the principle of legality. Following that, the Chamber will address its subject matter jurisdiction over the underlying crimes against humanity specifically addressed under these grounds, namely, enslavement, torture, rape and persecution. Finally, the Chamber will consider whether the Trial Chamber erred in its conclusion that cumulative convictions for persecution and other underlying crimes against humanity are impermissible.

A.  The Principle of Legality

89.  The Supreme Court Chamber recalls that Article 33 new of the ECCC Law provides that the ECCC shall exercise its “jurisdiction in accordance with international standards of justice, fairness and due process of law, as set out in Articles 14 and 15 of the ICCPR.”159 Article 15(1) of the ICCPR codifies and defines the principle of legality under international law and stipulates, in relevant part, that “[n]o one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed.”160 Furthermore, Article 15(2) adds that “[n]othing in this article shall prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognized by the community of nations.”161

90.  The main purpose of the principle of legality so defined is protection of individual rights in criminal law. It takes effect in three functional respects. First, it ensures that one who wishes to avoid criminal liability may do so by receiving notice of what acts lawmakers will deem to be criminal. Second, as a procedural matter, the legality principle protects the individual against arbitrary exercise of political or judicial power162 by preventing legislative targeting or conviction of specific persons without stating legal rules in advance. Third, the principle provides an analogue to the protection afforded by separation of powers in national courts applying national laws.163 The Supreme Court finds that the restraining function of the international principle of legality is of particular importance in international criminal law as it prevents international or hybrid tribunals and courts from unilaterally exceeding their jurisdiction by providing clear limitations on what is criminal.

91.  The international principle of legality, with its focus on guarantee of human rights in criminal proceedings, is connected to general principles of law concerning prohibition of retroactive crimes and punishments and of collective punishments meted against non-participants in crime. As such, it applies equally to offences as well as to forms of responsibility that are charged against an individual accused. 164 Therefore, offences and modes of liability charged before the ECCC must have existed either under national law165 or international law166 at the time of the alleged criminal conduct occurring between 17 April 1975 and 6 January 1979.167

92.  With respect to national law, the Supreme Court Chamber agrees with the Trial Chamber’s finding that Cambodia’s 1956 Penal Code was the applicable law from 1975 to 1979.168 As for the applicable international law, the plane of reference is broader, encompassing international conventions, customary international law and general principles of law recognised by the community of nations applicable at the relevant time. 169 Complex questions that arise regarding the emergence of international criminal law norms from these sources and the relations among them have been, to a large extent, addressed in the jurisprudence of the ad hoc Tribunals. When looking to conventional international law, the Chamber may rely upon a treaty where it “(i) was unquestionably binding on the parties at the time of the alleged offence; and (ii) was not in conflict with or derogated from peremptory norms of international law.”170

93.  With respect to customary international law, the Supreme Court Chamber considers that in evaluating the emergence of a principle or general rule concerning conduct that offends the laws of humanity or the dictates of public conscience in particular, the traditional requirement of “extensive and virtually uniform” state practice may actually be less stringent than in other areas of international law, and the requirement of opinio juris may take pre-eminence over the usus element of custom.171 The Chamber finds this particularly relevant to the question of individual criminal responsibility under international law. Where the usus element of an international crime is manifest, in large part, through actual prosecution, one has to bear in mind that this requirement presupposes not only the existence of an established legal norm proscribing the conduct as criminal, but also the record of an infraction, followed by a plethora of complex factors that render the prosecution possible, starting with the identification of the accused, availability of evidence and political will.172 Taking all of these inherent difficulties into account, a paucity of prosecution cannot be found to disprove automatically the existence of State practice in this regard under international law.

94.  It must be recognised that treaty law and customary international law often mutually support and supplement each other.173 As such, treaty law may serve as evidence of customary international law either by declaring the opinio juris of States Parties, or articulating the applicable customary international law that had already crystallised by the time of the treaty’s adoption.174 That being said, while the Supreme Court Chamber may rely on both customary and conventional international law as a legal basis for charged offences and modes of liability, there is no requirement that the offences or modes of liability at issue be found under each in order to be charged.175

95.  Once a Chamber has determined that a charged offence or mode of liability existed as a matter of national or international law at the time of the alleged criminal conduct, the international principle of legality does not prohibit it from interpreting and clarifying the law or from relying on those decisions that do so in other cases.176 This principle, however, does prevent a Chamber “from creating new law or from interpreting existing law beyond the reasonable limits of acceptable clarification.”177

96.  Finally, as an additional safeguard, fairness and due process concerns underlying the international principle of legality require 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.”178 “[A]s to foreseeability, […] [the accused] must be able to appreciate that the conduct is criminal in the sense generally understood, without reference to any specific provision.”179 As for the accessibility requirement, in addition to treaty laws, laws based on custom or general principles can be relied on as sufficiently available to the accused.180 Furthermore, a Chamber may “have recourse to domestic law for the purpose of establishing that the accused could reasonably have known that the offense in question or the offense committed in the way charged in the indictment was prohibited and punishable.” 181 Finally, “[a]lthough the immorality or appalling character of an act is not a sufficient factor to warrant its criminalisation […], it may in fact play a role […] insofar as it may refute any claim by the Defence that it did not know of the criminal nature of the acts.”182

97.  The Supreme Court Chamber notes that, in this case, the Trial Chamber relies heavily upon ad hoc Tribunal jurisprudence when determining the existence of crimes or modes of liability or interpreting the law relating to them. As a preliminary matter, this Chamber emphasises that these cases are non-binding and are not, in and of themselves, primary sources of international law for the ECCC.183 Furthermore, while the ECCC clearly benefits from the reasoning of the ad hoc Tribunals in their articulation and development of international criminal law, in light of the protective function of the principle of legality, Chambers in this Tribunal are under an obligation to determine that the holdings on elements of crimes or modes of liability therein were applicable during the temporal jurisdiction of the ECCC. Furthermore, they must have been foreseeable and accessible to the Accused. In addition, the Supreme Court Chamber stresses that careful, reasoned review of these holdings is necessary for ensuring the legitimacy of the ECCC and its decisions.184 As such, in the sections that follow, the Supreme Court Chamber will evaluate whether the Trial Chamber’s reliance on ad hoc Tribunal jurisprudence with respect to the specific issues raised in this appeal was appropriate.

B.  Crimes Against Humanity as an International Crime from 1975-1979

98.  The Supreme Court Chamber now turns to consider, as a general matter, the scope of ECCC jurisdiction over crimes against humanity in the context of the international principle of legality. In doing so, the Supreme Court Chamber agrees with the Trial Chamber that, in order for charged offences and modes of participation to fall within the ECCC’s subject matter jurisdiction, they must: 1) “be provided for in the [ECCC Law], explicitly or implicitly”;185 and 2) have existed under Cambodian or international law186 between 17 April 1975 and 6 January 1979.187

99.  The Chamber recalls that pursuant to Article 5 of the ECCC Law, the ECCC has explicit subject matter jurisdiction over crimes against humanity. In accordance with the principle of legality, however, that enumeration of crimes against humanity is not itself a source of criminalisation of conduct and, as such, does not constitute an autonomous basis for entering convictions before the ECCC. Whereas Article 5 grants the ECCC a priori jurisdiction over the acts so listed, its exercise of jurisdiction is subject to determining whether crimes against humanity were proscribed under international law188 from 1975-1979 at the time of the alleged criminal conduct.

100.  Second, assuming that crimes against humanity did exist under international law at the relevant time, the exercise of jurisdiction by the ECCC is limited by the definition of crimes against humanity as it stood under international law at the time of the alleged criminal conduct. In other words, Article 5 of the ECCC Law with its catalogue of crimes against humanity over which the ECCC has a priori jurisdiction may not be interpreted as a retroactive amendment to that definition.

101.  With respect to the first question of the existence of crimes against humanity under international law by 1975, the Supreme Court Chamber recalls that the antecedents to crimes against humanity date back to the writings of Hugo Grotius.189 In the nineteenth century, in the preamble of the Declaration of St. Petersburg of 1868, reference is made to violations of the “laws of humanity.”190 A similar term also appears in the Martens Clause in the Hague Conventions of 1899191 and 1907.192

102.  However, the actual term “crimes against humanity” first appeared in 1915, in a joint Declaration by France, Great Britain, and Russia decrying the massacres of Armenians.193 After World War I, the 1919 Versailles Preliminary Peace Conference created a Commission on the Responsibilities of the Authors of the War and the Enforcement of Penalties (“the Commission”), which advanced, to a limited degree, the concept of crimes against humanity. In its published report, the Commission found that Germany and its allies waged war “by barbarous or illegitimate methods in violation of […] the elementary laws of humanity.” 194 The Commission further suggested that Ottoman and German belligerents be tried for “violations of the laws and customs of war and the laws of humanity,”195 and that an international tribunal be established for that purpose.196 Thus, the atrocities committed by belligerents during World War I helped lay the conceptual framework whereby crimes against humanity became positive international law in the aftermath of World War II. Furthermore, the juxtaposition of “laws and customs of war” and “laws of humanity” clearly presupposed that the crimes so envisaged would result from offending against two different legal regimes.

103.  The Supreme Court Chamber recalls that, following their first appearance in international law in the 1945 Nuremberg International Military Tribunal (“IMT”) Charter,197 appended to the 1945 Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, which was endorsed by 19 States, 198 crimes against humanity were subsequently included in the 1945 Law No. 10 of the Allied Control Council,199 the 1946 International Military Tribunal for the Far East (“IMTFE”) Charter,200 and the 1950 Nuremberg Principles.201 Furthermore, they were prosecuted before the IMT202 and the Nuremberg Military Tribunals (“NMTs”) under the Control Council Law No. 10 in the occupied zones in Germany.203 Finally, in the immediate aftermath of World War II, several peace treaties with Axis countries and their allies prohibited crimes against humanity, and obligated States Parties to prosecute those crimes, including the Peace Treaties with Italy, Romania and Bulgaria. 204 Subsequently, national courts reached convictions for crimes against humanity with respect to conduct that occurred prior to 1975.205

104.  Based on the aforementioned, the Supreme Court Chamber agrees with the Trial Chamber206 that crimes against humanity were established as an international crime during the ECCC’s temporal jurisdiction.

105.  Regarding the second issue, namely, how crimes against humanity were defined under customary international law by 1975, the Supreme Court Chamber recalls that under Article 5 of the ECCC Law, crimes against humanity are:

any acts committed as part of a widespread or systematic attack directed against any civilian population, on national, political, ethnical, racial or religious grounds, such as: murder; extermination; enslavement; deportation; imprisonment; torture; rape; persecutions on political, racial, and religious grounds; other inhumane acts.207

106.  Not only does this definition specify the underlying acts that constitute a crime against humanity, but it also lays out the contextual or chapeau requirements that must be found to exist in order to set crimes against humanity apart from domestic crimes or other international crimes. The chapeau requirements here are: 1) the existence of a widespread or systematic attack; 2) directed against a civilian population; 3) on national, political, ethnical, racial or religious grounds; and 4) the underlying acts were committed as “part of” the attack.

107.  In the following sections, this Chamber will examine, in response to the Co-Prosecutors’ Appeal, whether the underlying crimes against humanity of persecution, torture, rape and enslavement found under Article 5 of the ECCC Law constituted crimes against humanity under customary international law by 1975. Consideration of whether other underlying acts in Article 5 constituted crimes against humanity at the relevant time is beyond the scope of this appeal.

108.  In determining the scope of crimes against humanity during the ECCC’s temporal jurisdiction, the Supreme Court Chamber notes that the IMT Charter articulated crimes against humanity as follows:

  1. (c)  Crimes against humanity: namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.208

109.  Two months after issuance of the IMT Judgement on 1 October 1946, in which convictions for crimes against humanity were reached, the General Assembly unanimously adopted General Assembly Resolution 95 (I) evidencing opinio juris among UN Member States that the IMT Charter and Judgement reflected general principles of international law at the time.209 Following Resolution 95 (I), the General Assembly directed its International Law Commission (“ILC”) to formulate and interpret those principles.210 Consequently, in 1950, the ILC adopted the Nuremberg Principles.

110.  The Supreme Court Chamber recognises that the IMT Judgement itself does not constitute binding precedent for the ECCC. However, coupled with the IMT Charter and General Assembly Resolution 95 (I), it provides strong evidence of existent and newly emerging principles of international criminal law.211 As concerns the 1950 Nuremberg Principles, the Supreme Court Chamber notes that Resolution 95 (I) did not endorse any specific articulation or interpretation of general principles of international law found in the IMT Charter and Judgement. The 1950 Nuremberg Principles were adopted by the ILC in the aftermath of that resolution and never formally adopted by the General Assembly. Consequently, it is open to the ECCC to determine the general principles of international law found in the IMT Charter and Judgement as of 1946, and whether the 1950 Nuremberg Principles are an accurate reflection of those principles.

111.  With respect to crimes against humanity in particular, the Supreme Court Chamber recalls that the 1950 Nuremberg Principles stipulate that crimes against humanity are:

[m]urder, extermination, enslavement, deportation and other inhuman acts done against any civilian population, or persecutions on political, racial or religious grounds, when such acts are done or such persecutions are carried on in execution of or in connexion with any crime against peace or any war crime.212

112.  The Supreme Court Chamber observes that this definition largely mirrors the definition found in the IMT Charter. 213 National and regional courts have subsequently interpreted the 1950 Nuremberg Principles as reflective of customary international law.214 The Supreme Court Chamber agrees, and finds that the definition of crimes against humanity found in the 1950 Nuremberg Principles retrospectively reflects the state of customary international law on the definition of crimes against humanity as it existed in 1946.

113.  Having confirmed the definition of crimes against humanity in the 1950 Nuremberg Principles, it still falls on the Supreme Court Chamber, in the sections that follow addressing the Co-Prosecutors’ specific grounds of appeal, to determine whether that definition remained during the period 1975-1979, or whether State practice and opinio juris indicate that the definition had evolved and new rules had crystallised by 1975. To the extent that it may be argued that at the relevant period, norms had changed such that crimes against humanity encompassed a broader scope of human conduct under customary international law than that found under the definition in the 1950 Nuremberg Principles, the Chamber must be satisfied that such a contention is based in evidence.

114.  In that regard, the Supreme Court Chamber recalls that from 1954-1996, the ILC produced and adopted several versions of a draft code of international offences pursuant to the General Assembly’s direction in 1947 under Resolution 177 (II).215 While none of those drafts were ever endorsed by the General Assembly in the end, the Chamber considers that nevertheless, they may reflect State practice and opinio juris with respect to the definition of crimes against humanity over the years, given that one of the mandates of the ILC is to work retrospectively by providing a “more precise formulation and systematization of rules of international law in fields where there already has been extensive State practice, precedent and doctrine” as it did with the 1950 Nuremberg Principles.216

115.  However, the Chamber further recalls that the ILC is also tasked with “the promotion of the progressive development of international law and its codification.”217 Consequently, the draft codes of international offences produced by the ILC between 1954-1996 reflect fluctuation between these two mandates, especially as it broadened the scope of international crimes over time, including crimes against humanity.218 In the end, however, it is worth noting that the ILC’s efforts remained the product of “laboring under the long shadow of Nuremberg”219 when, in 1996,220 it produced its Draft Code of Crimes against the Peace and Security of Mankind following the creation of the ad hoc Tribunals by the Security Council. Both the ICTY Statute221 and the ICTR Statute222 resemble, to some extent, the IMT Charter in their definition of crimes against humanity, and, on the occasion of the Tribunals’ creation, the United Nations Secretary-General expressly noted its customary international law status.223 Subsequently, the definition of crimes against humanity in the 1996 Draft Code of Crimes for the Peace and Security of Mankind returned to earlier versions that more closely resembled the definition found in the 1950 Nuremberg Principles, but with increased specification.

116.  In light of this dynamic, and the fact that the ILC did not clearly distinguish in its work when it was working under which of these mandates,224 the Supreme Court Chamber may not automatically conclude that the ILC draft codes of international offences always capture “extensive State practice, precedent and doctrine.” Therefore, when considering specific issues surrounding the elements of crimes against humanity that existed during the ECCC’s temporal jurisdiction in the sections that follow, the Chamber will carefully assess the ILC draft codes in light of evidence of State opinio juris and practice at the time in order to be able to determine when the drafts reflect customary international law as opposed to when they merely evidence the ILC’s efforts towards prospective development of the law.

C.  Enslavement as a Crime Against Humanity from 1975-1979 (Ground 3 of the Co-Prosecutors’ Appeal)

117.  Under Ground 3 of the Co-Prosecutors’ Appeal, the Co-Prosecutors submit that the Trial Chamber “erred in law in not convicting the [Accused] for the enslavement of all the detainees of S-21.”225 The Co-Prosecutors base their claim on the argument that the Trial Chamber “erred in law in its definition of enslavement as a crime against humanity” by “read[ing] an element of forced labour into the definition”226 and “requiring forced labour as an essential element of that crime.”227 The Co-Prosecutors contend that this “is inconsistent with international jurisprudence” and that, during the relevant period, enslavement as a crime against humanity covered the status of all S-21 detainees.228 The Co-Prosecutors assert that the correct definition of enslavement as a crime against humanity is “the exercise of any or all of the powers attaching to the right of ownership over a person”229 and conclude that, under this definition, the Trial Chamber’s factual findings with respect to all S-21 detainees “fulfill[…] the definitional requirements for enslavement.”230 Accordingly, the Co-Prosecutors request that the Supreme Court Chamber find that the Trial Chamber erred in its definition of enslavement as a crime against humanity and convict the Accused for enslavement of all detainees at S-21 “irrespective of whether they were subjected to forced or involuntary labour.”231

118.  The Supreme Court Chamber recalls that, pursuant to Article 5 of the ECCC Law, the ECCC has jurisdiction “to bring to trial all Suspects who committed crimes against humanity during the period 17 April 1975 to 6 January 1979 […] such as: […] enslavement […].” 232 The Trial Chamber found the Accused responsible for enslavement as a crime against humanity on the basis of direct modes of liability as well as on the basis of his superior responsibility under Article 29 of the ECCC Law.233

119.  When articulating the applicable law with respect to enslavement as a crime against humanity, the Trial Chamber concluded that “[t]he prohibition against slavery is unambiguously part of customary international law.” 234 Under customary international law, the actus reus element of enslavement “is characterised by the exercise of any or all powers attaching to the right of ownership over a person.”235 Furthermore, the Chamber held that the following are indicia of the exercise of such powers:

control of someone’s movement, control of physical environment, psychological control, measures taken to prevent or deter escape, force, threat of force or coercion, duration, assertion of exclusivity, subjection to cruel treatment and abuse, control of sexuality and forced labour.236

120.  With respect to acts of forced or involuntary labour in particular, the Chamber noted that this “may also constitute enslavement.”237 The Trial Chamber found that, when determining whether labour is forced or involuntary, and rises to the level of enslavement, a Chamber must turn to the “factors outlined above.”238 Furthermore, the Trial Chamber clarified that, in certain circumstances, enslavement through forced or involuntary labour can be established “without evidence of additional ill-treatment.”239 Finally, the Chamber held that “[p]roof that the victim did not consent to being enslaved is not required, as enslavement is characterised by the perpetrator’s exercise of power.”240

121.  As for the mens rea element of enslavement, the Trial Chamber stated that the Co-Prosecutors must show that the “perpetrator intentionally exercised any or all of the powers attaching to the right of ownership.”241

122.  When applying this definition of enslavement as a crime against humanity to the facts, the Trial Chamber’s factual findings were limited to “[c]ertain detainees at S[-]21 and Prey Sâr […] forced to work,” consistent with the factual allegations contained in the Amended Closing Order under the enslavement charge.242 The Trial Chamber determined that the “forced or involuntary labour, coupled with […] detention” of the S-24 detainees and a “small number of detainees assigned to work within the S-21 complex” constituted enslavement.243 The staff at S-21 “exercised total power and control” over these detainees who “had no right to refuse to undertake the work assigned to them, and did not consent to their conditions of detention.”244

123.  In disposing of this ground of appeal, the Supreme Court Chamber considers that the issues before it are two-fold: 1) whether the Trial Chamber’s definition of enslavement as a crime against humanity from 1975-1979 is in error; and 2) whether the Trial Chamber erred in finding the Accused guilty of enslavement as a crime against humanity only with respect to those S-21 detainees who were subjected to forced labour and not all S-21 detainees. The Supreme Court Chamber will now examine each in turn.

1.  The Trial Chamber’s Definition of Enslavement

124.  In determining whether the Trial Chamber’s definition of enslavement as a crime against humanity was the applicable definition under national or international law from 1975-1979 pursuant to the principle of legality, the Supreme Court Chamber will consider, as a preliminary matter, the Co-Prosecutors’ submission that the Trial Chamber “erroneously read an element of forced labour into the definition of enslavement as a crime against humanity”245 as an essential element of the crime.246

125.  The Supreme Court Chamber notes that the text of the Trial Judgement itself resolves this issue. The Trial Chamber neither expressly nor implicitly invoked forced labour as a necessary element of enslavement when it defined the crime’s actus reus as “the exercise of any or all powers attaching to the right of ownership over a person.”247 When articulating the considerations relevant to the enslavement analysis, the Trial Chamber noted that “forced labour” is merely one factor to be considered among several “[i]ndicia of enslavement.”248 No factor was singled out by the Trial Chamber as being of greater relative importance for establishing enslavement.249

126.  Further, the Trial Chamber explicitly stated that “[f]orced […] labour may also constitute enslavement.”250 The Trial Chamber noted that forced labour, when looking to other relevant indicia, could rise to the level of enslavement without any additional evidence of mistreatment.251 The implication of these determinations is that forced labour is a sufficient but not a necessary prerequisite for enslavement as a crime against humanity.

127.  The Supreme Court Chamber acknowledges that the Trial Chamber solely considered whether there was enslavement in this case with respect to detainees at S-24 and S-21 who were subjected to forced labour. This limited factual analysis, however, does not lead to the conclusion that the Chamber read in forced labour as an essential element of its legal definition of enslavement. Rather, the Trial Chamber, when applying its definition of enslavement to its factual findings, followed the scope of the Amended Closing Order’s enslavement charge, which had been limited to detainees at S-24 and S-21 as follows:

Certain detainees at S21 and Prey Sâr were forced to work. Strict control and constructive ownership was exercised over all aspects of their lives by: limiting their movement and physical environment; taking measures to prevent and deter their escape; and subjecting them to cruel treatment and abuse. As a result of these acts, detainees were stripped of their free will.252

128.  That said, the Supreme Court Chamber recognises that, although Internal Rule 98(2) limits the Trial Chamber’s factual findings in the Judgement to “the facts set out in the Indictment”, it does not limit the Trial Chamber only to those facts which the Amended Closing Order explicitly linked to the relevant charged crime.253 Indeed, “[t]he Chamber may […] change the legal characterisation of the crime as set out in the Indictment.” 254 Consequently, the Supreme Court Chamber will later consider whether the Trial Chamber’s full factual findings with respect to S-21 under other charges support a legal determination that all S-21 detainees were enslaved.

129.  On the basis of the foregoing, the Supreme Court Chamber finds that the Co-Prosecutors’ assertion that the Trial Chamber’s definition of enslavement as a crime against humanity requires proof of forced labour is without merit.

130.  Turning to the Trial Chamber’s definition of enslavement, as noted previously, Article 33 new of the ECCC Law requires that the Chamber exercise its subject matter jurisdiction in accordance with the international principle of legality codified under Article 15 of the ICCPR, which stipulates that no one shall be held guilty of any criminal offence which did not constitute an offence under national or international law at the time of the alleged act or omission.255

131.  The 1926 Convention to Suppress the Slave Trade and Slavery, which entered into force in 1927, defined slavery as “the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised.”256 The Slavery Convention was augmented by the 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, which entered into force in 1957 and affirms the definition of slavery found in the Slavery Convention.257 By 1975, there were 56 States Parties to the Slavery Convention 258 and 82 States Parties to the Supplementary Slavery Convention. 259 Cambodia acceded to the Supplementary Slavery Convention in 1957. 260 The definition of slavery under these treaties has persisted,261 and has been consistently recognised as the basic formulation for the definition of enslavement as a crime against humanity under customary international law, including from 1975 to 1979.262

132.  Subsequent to the Slavery Convention, enslavement was first codified as a crime against humanity under Article 6(c) of the IMT Charter, Article 5(c) of the IMTFE Charter, Article II(1)(c) of the Control Council Law No. 10 and Principle VI(c) of the 1950 Nuremberg Principles.263 The post-World War II tribunals, the first to prosecute crimes against humanity, do not expressly state the legal elements of enslavement as a crime against humanity or interpret the definition articulated in the Slavery Convention. However, they provide substantive analyses from which subsequent international tribunals have discerned factors considered indicative of enslavement as a crime against humanity.264 The Supreme Court Chamber considers that the conclusions reached by these post-World War II tribunals, coupled with the definition of slavery found in the Slavery Convention, evidence the state of customary international law relating to the definition of enslavement as a crime against humanity at the time.

133.  In the IMT Judgement, twelve defendants were convicted for enslavement as a crime against humanity and a war crime through their involvement in the Nazi’s slave labour programme. An additional defendant, Baldur Von Shirach, was only convicted for enslavement as a crime against humanity.265 In its factual findings, the Tribunal focused on the following aspects of the programme: the extent, if at all, the labourers had free choice to work for the Germans; the conditions under which the labourers were transferred and treated; and the purpose for which the labourers were recruited and exploited.266

134.  The Tribunal found that at least five million persons were deported to Germany to work in German industry and agriculture.267 After weighing the evidence, including the statement from defendant Fritz Saukel, Pleni-potentiary-General for the Utilization of Labour, that, “‘[o]ut of the five million workers who arrived in Germany, not even 200,000 came voluntarily’”, 268 the Tribunal concluded that although some workers from western Europe were at first recruited voluntarily, the vast majority of workers were forced to leave home to work for the German industries and war effort.269 In many cases, the conscription of labour was accomplished by drastic and violent methods.270

135.  The Tribunal also found that the workers were generally treated in a cruel and inhumane way when they were deported to Germany and worked in German industries. 271 The treatment of the labourers was governed by the instructions of defendant Sauckel requiring that “‘[a]ll the men must be fed, sheltered and treated in such a way as to exploit them to the highest possible extent, at the lowest conceivable degree of expenditure.’”272 The workers were often provided with inadequate heating, food, clothing, and sanitary facilities, and were cruelly punished.273 The concentration camps were also used to provide labour, and the camp inmates were forced to work “to the limits of their physical power.”274 In addition, evidence was proffered that female labourers, deported to work as house servants and farm labourers, were afforded no free time, save for the rare opportunity, granted as reward for good work, to be away from the home for a few hours.275

136.  Furthermore, the Tribunal found that:

The general policy underlying the mobilization of slave labor was stated by [defendant] Sauckel [as follows]: ‘[…] to use all the rich and tremendous sources conquered and secured for us by our fighting Armed Forces, […] for the armament of the Armed Forces, and also for the nutrition of the Homeland. The raw materials, as well as the fertility of the conquered territories and their human labor power, are to be used completely and conscientiously to the profit of Germany and her allies […].’276

137.  As such, compulsory labour service was instituted in occupied territories “to assist the German war economy”; foreign labourers were also deported to Germany to meet the need of German industries for manpower.277 At least 500,000 women were deported to Germany to work as “female domestic workers” and farm labourers.278 Finally, an additional purpose of the slave labour programme was, as stated by defendant Hermann Wilhelm Göring,279 “for security reasons so that they would not be active in their own country and would not work against us.”280

138.  Convictions for enslavement as a crime against humanity by the Tribunal were largely based on the defendants’ roles in planning, ordering, executing, controlling or otherwise participating in the systematic transfer, employment, and abuse of involuntary labourers under the Nazi’s slave labour policy.281 With respect to their mens rea, each defendant was found to have intentionally participated in the slave labour programme, on the basis of evidence that the defendants had knowledge of the programme and willingly participated in it.282

139.  Subsequently, several Judgements issued by the NMTs under Control Council Law No. 10 further developed the factors relevant to the definition of enslavement as a crime against humanity under customary international law. While consideration of acts amounting to enslavement at times occurred within the war crimes section, those same acts were held to constitute crimes against humanity.283 Similar to the IMT Judgement, concerning the actus reus of enslavement, the NMTs considered the conditions under which labourers were conscripted, transferred and treated in the Nazi slave labour programme, as well as the purposes for the programme, in determining whether the forced labour amounted to enslavement.284 As for the mens rea element, the NMTs looked to see whether there was intent—that the defendant knew of the slave labour policy and willingly participated in it.285

140.  For example, in the Milch case, defendant Erhard Milch, who controlled the German aircraft industry,286 was convicted of slave labour and deportation to slave labour as a crime against humanity.287 In an oft-quoted passage, the Tribunal, when rejecting the defendant’s claim that the workers had free choice to enter “labour contracts” with the Germany military industry, stated that:

[The Slavic Jews] were slaves, nothing less—kidnapped, regimented, herded under armed guards, and worked until they died from disease, hunger, and exhaustion. […]. As to non-Jewish foreign labor, […] they were deprived of the right to move freely or to choose their place of residence; to live in a household with their families; to rear and educate their children; to marry; to visit public places of their own choosing; to negotiate, either individually or through representatives of their own choice, the conditions of their own employment; to organize in trade unions; to exercise free speech or other free expression of opinion; to gather in peaceful assembly; and they were frequently deprived of the right to worship according to their own conscience. All these are the sign-marks of slavery, not free employment under contract.288

141.  With respect to evidence of the defendant’s mens rea for enslavement, the NMT noted that he was aware of how the workers were conscripted and treated.289 The defendant attended at least fifteen meetings where it was disclosed that cruel and barbarous methods were used in forcing civilians of foreign countries to come and work for the German industry. 290 In addition, the defendant personally urged the adoption of more stringent and coercive means to secure the supply of workers.291

142.  Additionally, in the Pohl et al. case, when convicting several of the defendants who were members of “one of the twelve main departments of the SS” 292 for enslavement as a crime against humanity, the NMT noted that the defendants viewed the civilian population of occupied countries deported for purposes of slave labour as “merely a part of the victor’s spoils.”293 In determining the scope of the actus reus of enslavement, the NMT concluded that, with respect to concentration camp inmates utilised as slave labour for German industries, “[w]e might eliminate all proof of ill-treatment, overlook the starvation, beatings, and other barbarous acts, but the admitted fact of slavery—compulsory uncompensated labor—would still remain. […]. Involuntary servitude, even if tempered by humane treatment, is still slavery.”294

143.  As for the defendants’ mens rea for enslavement, with respect to defendant Oswald Pohl, the NMT noted that he was head of a main SS department.295 As such, he had jurisdiction over the administration of the concentration camps, 296 and exercised substantial supervision and control over exploitation of the labour of the camp inmates for purposes of supplying the war industries.297 The NMT also noted that Pohl visited the camps and had a detailed knowledge of happenings related to the camps.298 He “energetically set about driving the inmates to the limit of endurance in order to further the economic and war efforts of the Reich,”299 and “constantly fought for longer hours, more intense effort, more production, selection of specialized skills, less loafing, and more strict supervision.” 300 Similarly, the NMT convicted other leading members in the SS, including defendants August Frank, Heinz Karl Fanslau, Hans Loerner, Georg Loerner, Erwin Tschentscher, Max Kiefer, Hans Baier and Leo Volk, for enslavement as a crime against humanity on the basis that they knew of the slave labour programme, especially the policy goals of the programme, the conscription methods of the labourers, and the events related to the concentration camps. They also helped administer or facilitate the programme in an active and responsible fashion.301

144.  While, as demonstrated here, the Nuremberg-era jurisprudence focused on the forced and compulsory labour element of enslavement, the findings are nonetheless underlined by general pronouncements of treating the victims as commodities (“victor’s spoils”,302 akin to “raw materials, as well as the fertility of the conquered territories”303 that were to be “exploit[ed] […] to the highest possible extent, at the lowest conceivable degree of expenditure”304), thereby confirming that enslavement as crime against humanity and the definition of slavery in the Slavery Convention share the same roots.

145.  More recently, Chambers in the ad hoc international criminal Tribunals have distilled the elements of the definition of enslavement as a crime against humanity and the factors that are indicative of the actus reus of the exercise of powers that attach to the right of ownership under that definition. The ICTY Chambers survey the conceptual development of enslavement under customary international law and seek to connect the definition of slavery found in the Slavery Convention and the Supplementary Slavery Convention with post-World War II jurisprudence on enslavement as a crime against humanity, all of which constituted customary international law by 1975.

146.  Notably, the ICTY Prosecutor v. Kunarac et al. case305 concerned, in relevant part, charges of enslavement for holding captive women and girls for a period of months, during which time the victims were raped, forced to perform household chores and obey all commands. 306 Affirming the established definition of slavery found in the Slavery Convention, the Kunarac Trial Chamber held that, “at the time relevant to the indictment, enslavement as a crime against humanity in customary international law consisted of the exercise of any or all powers attaching to the right of ownership over a person.”307 Furthermore, “[t]he mens rea of the violation consists in the intentional exercise of such powers.”308 It added that the broader scope of enslavement was “evidenced in particular by the various cases from the Second World War […], which have included forced or compulsory labour.”309 Thus, though issued well after 1979, Kunarac’s articulation of the factors relevant to the enslavement inquiry, 310 discussed below, is grounded in part in the very post-World War II jurisprudence to which the Supreme Court Chamber turns for conclusive evidence of the state of customary international law during the period relevant to this appeal.

147.  The Kunarac Trial Chamber concluded that, under the contemporary definition of enslavement:

[i]ndications of enslavement include elements of control and ownership; the restriction or control of an individual’s autonomy, freedom of choice or freedom of movement; and, often, the accruing of some gain to the perpetrator. The consent or free will of the victim is absent. It is often rendered impossible or irrelevant by, for example, the threat or use of force or other forms of coercion; the fear of violence, deception or false promises; the abuse of power; the victim’s position of vulnerability; detention or captivity, psychological oppression or socio-economic conditions. Further indications of enslavement include exploitation; the exaction of forced or compulsory labour or service, often without remuneration and often, though not necessarily, involving physical hardship; sex; prostitution; and human trafficking.311

148.  Further, the Chamber expressed “general agreement” with factors recommended by the Prosecution, which were:

control of someone’s movement, control of physical environment, psychological control, measures taken to prevent or deter escape, force, threat of force or coercion, duration, assertions of exclusivity, subjection to cruel treatment and abuse, control of sexuality and forced labour.312

149.  In convicting the defendants of enslavement, the Kunarac Trial Chamber accepted that the facts of the case, including involuntary performance of household services and sexual acts, were consistent with treating women and girls as personal property313 and amounted to enslavement as a crime against humanity.314

150.  The Kunarac Appeals Chamber affirmed the Kunarac Trial Chamber’s conceptualisation of enslavement and its multi-factor analytical approach, 315 considering that “whether a particular phenomenon is a form of enslavement will depend on the operation of the factors or indicia of enslavement identified by the Trial Chamber.”316

151.  Subsequent international jurisprudence has likewise affirmed the Kunarac approach.317 Most recently, in the Prosecutor v. Sesay case before the SCSL, the Trial Chamber held that:

[t]he actus reus of the offence is that the Accused exercised any or all of the powers attaching to the right of ownership over a person or persons while the mens rea is the intention to exercise such powers. In determining whether or not enslavement has occurred, the Chamber is mindful of the following indicia of enslavement that have been identified by the ICTY in the Kunarac et al. case: “control of someone’s movement, control of physical environment, psychological control, measures taken to prevent or deter escape, force, threat of force or coercion, duration, assertion of exclusivity, subjection to cruel treatment and abuse, control of sexuality and forced labour.”318

152.  In light of this apposite jurisprudence, the Supreme Court Chamber affirms the fundamental definition of enslavement as a crime against humanity employed by the Trial Chamber as the operative one from 1975-1979. The actus reus of enslavement is “characterised by the exercise of any or all powers attaching to the right of ownership over a person”319 and the mens rea is the intentional exercise of “any or all of the powers attaching to the right of ownership.”320 This definition is drawn from the Slavery Convention which, as discussed above, has been consistently recognised as the source for the basic formulation of enslavement as a crime against humanity.

153.  The Supreme Court Chamber clarifies, however, that with respect to the actus reus element of the Trial Chamber’s definition, international law does not recognise a “right of ownership over a person.”321 Therefore, the more precise language should be “the exercise over a person of any or all powers attaching to the right of ownership.”322 This language is consistent with the wording of Article 1(1) of the Slavery Convention, which defines slavery as “the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised.”323

154.  With respect to the Trial Chamber’s indicia of enslavement, the Supreme Court Chamber notes that the Trial Chamber restated some of the factors identified by the ICTY Trial Chamber in Kunarac. 324 In examining post-World War II jurisprudence, the Supreme Court Chamber considers that those factors of enslavement as a crime against humanity highlighted by the Trial Chamber are consistent with customary international law during 1975-1979. These factors help distinguish enslavement from other international crimes.

155.  The Supreme Court Chamber finds however that, although its restatement of certain Kunarac factors was proper, the Trial Chamber’s analysis failed to prioritize explicitly the essence of the mens rea and the actus reus elements of enslavement as a crime against humanity, that is, the exercise over another human being of the powers that attach to the right of ownership. That said, the Supreme Court Chamber echoes the Kunarac Appeal Judgement in that the notion of enslavement centred on ownership is not coterminous with “chattel slavery”. 325 Chattel slavery connotes outright ownership of a human being, which is only sustainable by at least some endorsement from society, through the legal system in particular. In its most advanced form, chattel slavery goes as far as to comprise: the ownership of slave offspring; succession in ownership, including through inheritance; the existence of a slave market; and protection against infringement on existing ownership rights through criminal law. In modern times, given the universal condemnation of slavery, societal mechanisms and circumstances enabling enslavement based on the exercise of full, in the civil law sense, powers of ownership, rarely occur. The exercise over a person of some of the powers attaching to ownership rights is usually possible only within the margins of criminal activity and/or in the situation of failing or deficient state systems.

156.  In any event, enslavement necessarily implies the presence of behavioural aspects of ownership and, therefore, the facts of an enslavement charge must be evaluated in accordance with the meaning of ownership understood as a category of civil law and economy. Therefore, in going through the checklist of indicia of enslavement, a Chamber must above all identify the indicia of “ownership”, that is, facts pointing to the victim being reduced to a commodity, such that the person is an object of “enjoyment of possession”; that she or he can be used (for example, for sexual purposes); economically exploited; consumed (for purposes of organ harvesting, for example); and ultimately disposed of. Clearly, the exercise over a person of powers attaching to ownership requires a substantial degree of control over the victim. There is no enslavement, however, where the control has an objective other than enabling the exercise of the powers attaching to ownership.

157.  Consistent with enslavement being premised on the notion of ownership, enslavement as it existed in the post-World War II jurisprudence required the element of seeking economic benefit or an effort to “accru[e][…] some gain” through exercising the powers of ownership and control over the victim.326 Importantly, such economic gain did not need to be monetary.327 Under that jurisprudence, there were no findings of enslavement as a crime against humanity in which an effort to accrue some gain was not of principal importance. In the Kunarac list of indicia of enslavement, the element of economic benefit is also present even if not as prominently put forth, given that this passage deals simultaneously with the conditions and means of asserting control over the victim, the exercise of such control, the effect it has on the victim and the purpose of enslavement.328 However, at no point does the Kunarac jurisprudence part with the concept of the victim as a commodity. Under the facts of the Kunarac case, the victims were indeed treated as property; they were used for sexual purposes and exploited for domestic chores329; could be made available for the sexual use of others330; and at any time disposed of, including through sale.331

158.  The Supreme Court Chamber therefore concludes that the Trial Chamber, in its analysis of enslavement as a crime against humanity, did not articulate with precision that the requisite element of the actus reus of the crime before it is an effort to accrue some gain through the exercise over the victim of the powers that attach to the right of ownership. Nevertheless, the Trial Chamber’s reliance, in particular on the exploitation of forced labour in conditions denying the victims any rights and subjecting them to total control as the premise for its finding of enslavement implies adoption of this same concept. Therefore, the requisite element of the mens rea and actus reus of the crime before it is an effort to accrue some gain through the exercise over the victim of the powers that attach to the right of ownership. The gain element is not an additional element of crime but rather the purpose implicit in the ownership powers as such.

159.  Having ascertained that definition, the Supreme Court Chamber now addresses the additional requirement under the principle of legality that charged offences were sufficiently foreseeable and the law providing for such liability was sufficiently accessible to the Accused at the relevant time. Although the Trial Chamber properly identified this requirement,332 it was not followed with sufficient analysis.

160.  The Supreme Court Chamber endorses the understanding of the foreseeability requirement as elaborated upon in prior ECCC jurisprudence. To wit, to satisfy foreseeability, an accused “must be able to appreciate that the conduct is criminal in the sense generally understood, without reference to any specific provision.”333 In other words, “the criminal consequences of the alleged acts [must be] foreseeable.”334 Accessibility can be demonstrated by the existence of an applicable treaty or customary international law during the relevant period.335

161.  The Supreme Court Chamber first considers that the record of charges and convictions for enslavement as a crime against humanity under customary international law were well established by 1975. In the IMT Judgement, as noted above, thirteen defendants were convicted for enslavement, although the IMT Judgement often did not distinguish between enslavement as a crime against humanity and as a war crime. Importantly, however, the conduct for which defendant Baldur Von Shirach was convicted was specifically categorized under crimes against humanity. 336 Further, in the Milch Case, the NMT found the defendant guilty of crimes against humanity for his role in the Nazi’s slave labour apparatus. 337 The Supreme Court Chamber thus finds that, in the wake of the Judgements issued by the post-World War II tribunals discussed previously, it would have been foreseeable that certain acts, especially those involving forced labour, were punishable as enslavement as a crime against humanity under customary international law by 1975.

162.  Additionally, the Supreme Court Chamber recalls that applicable international law during the relevant period rendered the fact of enslavement as a crime against humanity accessible to the Accused. It is beyond doubt that enslavement as a crime against humanity was part of international law applicable to Cambodia by 1975. Cambodia acceded to the Supplementary Slavery Convention in 1957, which states in Article 6 that “[t]he act of enslaving another person […], or of attempting these acts […], shall be a criminal offence.” 338 The Supplementary Slavery Convention’s definition of slavery, mirroring the Slavery Convention, constituted the basic formulation of enslavement as a crime against humanity under customary international law during the relevant period. 339 Moreover, as noted previously, enslavement was identified as a crime against humanity under Article 6(c) of the IMT Charter, Article 5(c) of the IMTFE Charter, Article II(1)(c) of the Control Council Law No. 10 and Principle VI(c) of the 1950 Nuremberg Principles. The Affirmation of Principles by the General Assembly in 1946 and the definition of crimes against humanity that was adopted by the ILC in the 1950 Nuremberg Principles pursuant to UN General Assembly Resolution 177 (II), paragraph (a) reflect the general principles of international law on crimes against humanity at the time. 340 Based on the foregoing, the Supreme Court Chamber finds that it was both foreseeable and accessible to the Accused that he could be charged with enslavement as a crime against humanity from 1975-1979.

2.  The Trial Chamber’s Findings on S-21 Detainees and Enslavement

163.  Finally, the Supreme Court Chamber turns to consider whether the Trial Chamber, based on its factual findings in the Trial Judgement on S-21, erred in failing to find the Accused guilty for enslavement as a crime against humanity with respect to all S-21 prisoners. As stated previously, although it was reasonable for the Trial Chamber to limit its enquiry to those detainees subjected to forced labour as specifically alleged in the Amended Closing Order under that charge,341 the Trial Chamber was not bound to limit itself to those facts. Internal Rule 98(2) requires that “the judgment shall be limited to the facts set out in the Indictment. The Chamber may, however, change the legal characterisation of the crime[s] as set out in the Indictment.”342 Thus, the Trial Chamber would have been acting within its authority in combing the entire factual record for other indications of enslavement. As the Co-Prosecutors now claim error in the Trial Court’s limitation of its enslavement findings with respect to S-21 detainees subjected to forced labour, the Supreme Court Chamber will address the issue, applying the proper definition of enslavement as a crime against humanity set forth above.

164.  By the Co-Prosecutors’ admission, the Trial Chamber made factual findings regarding those detainees not subjected to forced labour demonstrating only intentional “control of the detainees’ movement, the control of physical environment, psychological control, measures taken to prevent or deter escape, threat of force and coercion, and subjection to cruel treatment and abuse.” 343 The Trial Chamber unequivocally concluded that the Accused was responsible for: keeping detainees “chained and shackled to a metal bar in their cells,” “under constant armed guard” and “consistently handcuffed and blindfolded” when moved; 344 “scarcity of food,” 345 detainees’ inability to “wash in hygienic conditions”346 and degradation from being made to “defecate and urinate in the cells”;347 detainees’ “impaired […] psychological health […] and a permanent climate of fear” due to “the living conditions, combined with the detention, interrogation and disappearance of detainees”;348 “severe beating, mutilation, bruises and cuts” from interrogations;349 deprivation of basic rights, torture and murder.350

165.  The Supreme Court Chamber notes that the facts detailed above are indicative of the policy of torture and extermination that existed, with imprisonment and maltreatment employed as means to achieve both objectives.351 The Supreme Court Chamber further notes that the facts detailed above were fully accounted for by the Trial Chamber in holding the Accused responsible for the crimes against humanity of extermination (subsuming murder); imprisonment; torture; other inhumane acts; and persecution.352 Yet, nowhere in these factual findings is there evidence of efforts by the Accused to accrue some gain from the totality of S-21 detainees or of otherwise treating them as commodity.

166.  Conversely, with respect to the detainees of S-24, even though they had been confined, shackled at night, debased and treated cruelly,353 the overall purpose of exercising control over them was not to bring about their death but to “reform and re-educate combatants and farming rice to supply Office S-21 and its branches.”354 The same concerned a small group of detainees at S-21 who had been selected for forced labour, enjoyed better conditions than the rest of the S-21 detainees and who, notably, survived. 355 The Supreme Court Chamber therefore concludes that, while the Accused’s acts against S-21 detainees as detailed in the Trial Judgement were criminal, such acts, insofar as concerns the detainees not subjected to forced labour, did not amount to enslavement as a crime against humanity. Consequently, the Trial Chamber did not commit an error in limiting its finding of enslavement only to those detainees at S-21 who had been subjected to forced labour.

3.  Conclusion

167.  On the basis of the foregoing, the Supreme Court Chamber dismisses Ground 3 of the Co-Prosecutors’ Appeal.

D.  Rape as a Crime Against Humanity from 1975-1979 (Ground 2 of the Co-Prosecutors’ Appeal)

168.  Ground 2 of the Co-Prosecutors’ Appeal alleges that the Trial Chamber erred in law by characterising an act of rape committed at S-21 as the crime against humanity of torture. 356 Although the Co-Prosecutors acknowledge international jurisprudence holding that “the act of rape may amount to the crime of torture,” they argue that “international tribunals have consistently characterized rape as a crime against humanity distinct from torture even if the same criminal act amounts both to rape and torture,” 357 thereby “reflecting in full the gravity of the conduct.” 358 Accordingly, they request that the Supreme Court Chamber cumulatively convict the Accused for both rape and torture as crimes against humanity.359

169.  The Supreme Court Chamber recalls that, pursuant to Article 5 of the ECCC Law, the ECCC has subject matter jurisdiction over “crimes against humanity during the period 17 April 1975 to 6 January 1979 […] such as: […] torture; rape […].”360

170.  In the Trial Judgement, the Trial Chamber found that one instance of rape was proven by the Co-Prosecutors:

The Amended Closing Order also alleges that there is evidence of at least one incident of rape at S-21. The Accused acknowledged that an S-21 staff member inserted a stick into the vagina of a detainee during an interrogation. […]. The Chamber is satisfied that this allegation of rape has been proved to the required standard.361

171.  Articulating the applicable law with respect to rape, the Trial Chamber found that “[r]ape has long been prohibited in customary international law”362 and further held that:

[w]hile rape comprises a separate and recognized offence both within ECCC Law and international criminal law, it is undisputed that rape may also constitute torture where all other elements of torture are established (Section 2.5.3.7). The Chamber considers that the conduct alleged in the Amended Closing Order to constitute rape clearly satisfy the legal ingredients of both rape and also of torture. It has further evaluated the evidence in support of this charge to be credible (Section 2.4.4.1.1). The Chamber considers this instance of rape to have comprised, in the present case, an egregious component of the prolonged and brutal torture inflicted upon the victim prior to her execution and has characterized this conduct accordingly.363

172.  Subsequently, the Trial Chamber found that, with respect to this proven instance of rape, the Accused is responsible for torture as a crime against humanity (encompassing rape), pursuant to Articles 5 and 29 of the ECCC Law. The Trial Chamber did not convict the Accused for rape as a distinct crime against humanity.364

173.  In disposing of this part of Ground 2 of the Co-Prosecutors’ Appeal, the Supreme Court Chamber considers the issues before it as follows: 1) whether, in light of the principle of legality, the Trial Chamber erred in holding that rape was a crime against humanity within the ECCC’s subject matter jurisdiction from 1975-1979; 2) if the Trial Chamber did not err on this first issue, whether the Trial Chamber erred in failing to convict the Accused cumulatively for the distinct crime against humanity of rape as well as for the crime against humanity of torture with respect to the rape that occurred at S-21; and 3) if the Trial Chamber did not err on this second issue, whether the Trial Chamber erred in subsuming rape as an act of torture constituting a crime against humanity within the ECCC’s subject matter jurisdiction from 1975-1979. The Supreme Court Chamber will now address each issue in turn.

1.  Rape as a Distinct Crime Against Humanity

174.  With respect to the question of whether the Trial Chamber erred in holding that rape was a distinct crime against humanity within the ECCC’s subject matter jurisdiction, the Supreme Court Chamber recalls, as noted previously, that the exercise of the Trial Chamber’s jurisdiction under Article 5 of the ECCC Law is subject to the principle of legality codified under Article 33 new of the ECCC Law.365 The Supreme Court Chamber cannot uphold rape as a distinct crime against humanity on the basis of its gravity alone. Rather, this Chamber must also examine whether rape existed as a crime against humanity under international law, Cambodian municipal law, or general principles of law at the time of the alleged criminal conduct during the period 1975-1979.

175.  The Supreme Court Chamber notes that by the start of the ECCC’s temporal jurisdiction, rape’s prohibition as a war crime had long been established under international law, 366 albeit not always in express terms. 367 Rape was explicitly prohibited in armed conflict under the 1949 Geneva Convention IV368 as well as the 1977 Additional Protocols I369 and II370 to the 1949 Geneva Conventions. While the IMT Charter, the IMTFE Charter and the Control Council Law No. 10 did not reference rape as a war crime, the IMTFE and United States Military Commission convicted Japanese leaders, including General Iwane Matsui and Foreign Minister K?ki Hirota, for war crimes due to their failure to prevent the military forces under their command from instituting sexual enslavement of approximately 20,000 women at Nanking (Rape of Nanking).371

176.  Although rape had thus been well established as a war crime by 1975, its status as a crime against humanity under international law had not yet crystallised. Although the Control Council Law No. 10 listed rape as a crime against humanity after World War II,372 “none of the defendants in the trials [before the NMTs] were ever charged with rape.”373 Furthermore, neither the IMT Charter nor the IMTFE Charter reference rape as a crime against humanity. Consequently, although evidence of rape was read into the record by prosecutors before the IMT,374 the Tribunal did not convict any of the defendants for this crime. This is also true of proceedings before the IMTFE. As a result, rape as a crime against humanity was not included in the 1950 Nuremberg Principles. The Supreme Court Chamber further notes that, by 1975 and through 1979, no international treaty or convention was adopted which prohibited rape as a crime against humanity.

177.  The Co-Prosecutors’ Appeal cites to several cases from the ad hoc international criminal tribunals as authority for the proposition that “‘[d]epending upon the circumstances, under international criminal law rape may acquire the status of a crime distinct from torture,’”375 including as a separate crime against humanity.376 The Trial Chamber cited to the same cases, as well as to additional cases from the ICTY, ICTR and SCSL, when articulating its definition of rape as a crime against humanity.377

178.  The Supreme Court Chamber notes that this jurisprudence, which contains multiple convictions for rape as a discrete crime against humanity, extends well beyond the ECCC’s temporal jurisdiction. The ICTY was established in 1993 and its temporal jurisdiction extends to criminal acts committed since 1991.378 The ICTR was established in 1994, with its jurisdiction covering criminal acts committed during the same year.379 The SCSL’s temporal jurisdiction applies with respect to criminal acts committed since 30 November 1996.380 Thus, these particular convictions do not lend support to a finding that rape was a crime against humanity under international law during 1975-1979. Furthermore, in convicting for rape as a distinct crime against humanity, these tribunals did not rely upon additional sources of international or municipal law evidencing rape as a crime against humanity prior to or during the ECCC’s temporal jurisdiction.381

179.  To the contrary, the jurisprudence relied upon by the Co-Prosecutors and by the Trial Chamber indicates that by the era of the ad hoc tribunals, rape as a crime against humanity still remained a nascent notion.382 In fact, recognition of rape as a crime against humanity did not begin to take shape until the 1990s, 383 following reports of rape being used as a tool in carrying out widespread or systematic attacks on civilian populations in Haiti,384 Bosnia,385 and Rwanda.386

180.  In conclusion, the Supreme Court Chamber finds that a survey of custom and treaties before and during the ECCC’s temporal jurisdiction indicates that rape was not a distinct crime against humanity under those sources of international law at the relevant time.

181.  The next question is whether it would comport with the principle of legality to derive criminalisation of rape as a crime against humanity from Cambodian municipal law or pursuant to the general principles of law recognised by the community of nations as an alternative source of international law.387 The Supreme Court Chamber recalls that rape was criminalised under Cambodia’s 1956 Penal Code,388 which was in effect during the ECCC’s temporal jurisdiction. Furthermore, rape had been widely criminalised in other municipal jurisdictions by 1975.389

182.  Nevertheless, municipal law cannot provide relevant authority in this case. The Supreme Court Chamber concurs with the Pre-Trial Chamber in that “where the constitutive elements are not identical, domestic and international crimes are to be treated as distinct crimes.”390 Here, there is discrepancy between the elements of the crime of rape under municipal criminal codes, including the 1956 Penal Code of Cambodia, and the elements of crimes against humanity in 1975-1979.391 Unlike the criminalisation of rape in municipal law, all categories of crimes against humanity under international criminal law require chapeau elements that link them to the broader context in which the crimes occurred. Consequently, proscriptions against rape at the municipal level are insufficient to show the emergence of rape as a category of crimes against humanity by recourse to the general principles of law recognised by the community of nations. 392 Patterns of criminalisation on the municipal level, on the other hand, might help clarify the definition of rape as a crime against humanity, specifically the actus reus and mens rea, once the existence of rape as a crime against humanity has already been established under municipal or international law.393

183.  Given this lack of support under international and municipal law for the existence of rape as a distinct crime against humanity during the ECCC’s temporal jurisdiction, the Supreme Court Chamber finds that the Trial Chamber erred in law in concluding that the rape that occurred at S-21 constituted rape as a crime against humanity prohibited under customary international law. Accordingly, the Supreme Court Chamber rejects this part of Ground 2 of the Co-Prosecutors’ Appeal, which argues that the Trial Chamber erred in failing to cumulatively convict the Accused for rape and torture as distinct crimes against humanity for the rape that took place at S-21.

2.  Rape as an Act of Torture as a Crime Against Humanity

184.  As a final matter under this ground of appeal, the Supreme Court Chamber will determine, ex proprio motu, whether the Trial Chamber erred in finding that an act of rape such as occurred at S-21 could constitute the crime against humanity of torture during the ECCC’s temporal jurisdiction. In other words, the Chamber will consider whether, in light of the principle of legality, torture existed as a crime against humanity from 1975-1979 and, if so, whether its definition covered acts of rape.

185.  The Supreme Court Chamber notes that, as with rape, torture is explicitly proscribed under the laws of war.394 Although torture was not prohibited as a crime against humanity under the IMT or IMTFE Charters, Article II(1)(c) of the Control Council Law No. 10 included torture within the definition of “Crimes against Humanity” as follows: “Atrocities and offenses, including but not limited to […] torture […].” Under that law, convictions were reached for torture as a crime against humanity in a number of cases before the NMTs.395

186.  In the Medical Case, for example, the Tribunal frequently referred to torture as a crime against humanity when reaching its factual findings under the charges of war crimes and crimes against humanity. The defendants, doctors affiliated with the Third Reich, used non-consenting individuals imprisoned in concentration camps to conduct medical experimentation, 396 including “High Altitude” experiments 397 and “Poison Experiments.”398 In convicting the lead defendant, Karl Brandt, the Tribunal found that he was:

responsible for, aided and abetted, took a consenting part in, and was connected with plans and enterprises involving medical experiments conducted on non-German nationals against their consent, and in other atrocities, in the course of which murders, brutalities, cruelties, tortures and other inhumane acts were committed. To the extent that these criminal acts did not constitute war crimes they constituted crimes against humanity.399

Similar language appears elsewhere in the Judgement for convictions reached against a number of Brandt’s co-defendants.400

187.  Additionally, in the Justice Case, several defendants who were formerly members of the Reich Ministry of Justice, Special Courts and People’s Courts, were charged and convicted for crimes against humanity, including torture, committed against German civilians and nationals of occupied countries.401 Among other things, the defendants were convicted for their role in implementing Hitler’s “Night and Fog” decree, whereby “civilians of occupied countries accused of alleged crimes in resistance activities against German occupying forces were spirited away for secret trial” 402 with the intent “to terrorize, torture, and in some occupied areas to exterminate the civilian population.”403

188.  This practice, coupled with the conceptual shell of “other inhumane acts” as crimes against humanity that was included in the statute of the IMT Charter, 404 confirms the existence of torture as a crime against humanity under customary international law by 1975.

189.  The Supreme Court Chamber now turns to consider the definition of torture at the relevant time. With respect to this issue, the Supreme Court Chamber notes that the Trial Chamber found that:

[t]he crime of torture is proscribed and defined by numerous international instruments, including the 1975 United Nations General Assembly Declaration on Torture, adopted by consensus, and the 1984 Convention against Torture. The definition in the 1984 Convention against Torture, which closely mirrors that of the 1975 General Assembly Declaration, has been accepted by the ICTY as being declaratory of customary international law. The Chamber accordingly finds that this definition had in substance been accepted as customary by 1975.405

190.  The Trial Chamber provided no support for its holding that the definition in the 1984 Convention Against Torture constituted customary international law in 1975, save for the text of the 1975 Declaration on Torture itself. The Trial Chamber then relied upon jurisprudence from the ad hoc international tribunals to interpret the definition in the 1984 Convention Against Torture as well as to distil the requisite actus reus and mens rea for torture as a crime against humanity.406

191.  The Supreme Court Chamber considers that while it is true that the definition of torture found in the 1984 Convention Against Torture resembles the definition found in the 1975 Declaration on Torture, there are important differences. Article 1 of the 1975 Declaration on Torture defines torture as:

any act by which severe pain or suffering, whether physical or mental, [that] is intentionally inflicted by or at the instigation of a public official on a person for such purposes as obtaining from him or a third person information or confession, punishing him for an act he has committed or is suspected of having committed, or intimidating him or other persons. […]. Torture constitutes an aggravated and deliberate form of cruel, inhuman or degrading treatment or punishment.407

Whereas, the 1984 Convention Against Torture defines torture as:

any act by which severe pain or suffering, whether physical or mental, [that] is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.408

192.  The 1975 Declaration on Torture provides a more restrictive definition of torture. For example, the list of purposes or specific reasons for which severe pain or suffering is inflicted upon another human being is broader under the 1984 Convention Against Torture. Like the 1975 Declaration on Torture, the 1984 Convention Against Torture specifies the purposes of: obtaining information or a confession; punishment; and intimidation. The 1984 Convention Against Torture, however, also provides for coercion or “for any reason based on discrimination of any kind,”409 language which does not appear in the 1975 Declaration on Torture.

193.  The 1984 Convention Against Torture also includes a broader public official requirement.410 Unlike the definition in the 1975 Declaration on Torture, under the 1984 Convention Against Torture, torture may also be inflicted “with the consent or acquiescence” of such an official.411 In addition, a public official or any other person “acting in an official capacity” may inflict, instigate, consent or acquiesce to torture.412

194.  Furthermore, even if the Trial Chamber was correct that the definitions of torture in the 1975 Declaration on Torture and 1984 Convention Against Torture closely mirror each other, it does not follow that, because the 1984 Convention Against Torture was declaratory of customary international law at that time, therefore the definition of torture in the 1975 Declaration on Torture was also declaratory of customary international law almost ten years earlier. The 1975 Declaration on Torture is a non-binding General Assembly resolution and thus more evidence is required to find that the definition of torture found therein reflected customary international law at the relevant time.

195.  Consequently, the question before the Supreme Court Chamber is whether the more restrictive definition of torture found in the 1975 Declaration on Torture was declaratory of customary international law during the ECCC’s temporal jurisdiction. The Chamber notes that, under the 1975 Declaration on Torture, the elements of torture are as follows:

  1. a)  any act causing severe pain or suffering, whether physical or mental (actus reus);

  2. b)  that is intentionally inflicted upon on a person (mens rea);

  3. c)  by or at the instigation of a public official;

  4. d)  for such purposes as obtaining information or a confession; punishment; or intimidation.

196.  The Supreme Court Chamber recalls that while a number of international treaties and declarations enacted before 1975 prohibited torture, they did not define it.413 Thus, the Chamber finds it instructive to look to: the NMTs’ jurisprudence from 1946-1949 on torture as a crime against humanity under the Control Council Law No. 10; the International Committee of the Red Cross (“ICRC”) Commentary to 1949 Geneva Convention IV; the 1969 Greek Case by the European Commission on Human Rights; and the process surrounding the adoption of the 1975 Declaration on Torture. This evidence, taken as a whole, demonstrates that the definition and elements of torture provided in the 1975 Declaration on Torture were declaratory of customary international law by the time of the ECCC’s temporal jurisdiction.

197.  First, with respect to the cases under the Control Council Law No. 10, the facts imply that the definition of torture as a crime against humanity, as applied by the Tribunals, included not only the intentional infliction of severe pain or suffering on another human being,414 but also the active involvement of a state official and an unlawful purpose, in particular, obtaining a confession or punishment. All of the above-mentioned cases assign criminal responsibility for torturous acts inflicted by or at the instigation of German government officials in the context of concentration camps.415 In the Medical Case, for instance, the experiments:

were not the isolated and casual acts of individual doctors and scientists working solely on their own responsibility, but were the product of coordinated policy-making and planning at high governmental, military, and Nazi Party levels, conducted as an integral part of the total war effort. They were ordered, sanctioned, permitted, or approved by persons in positions of authority.416

The Justice Case further affirms that, for all crimes against humanity, “government participation is a material element.”417

198.  As for prohibited purposes, torture in the cases under the Control Council Law No. 10 appears to be correlated with extracting confessions from prisoners418 as well as with punishment. Punishment as a prohibited purpose is elucidated in the Medical Case:

The defendant attempts to meet this charge with the defense that the subjects used in this experiment were persons who had been condemned to death and that he, Mrugowsky, had been appointed as their legal executioner.

[…] the defense has no validity. This was not a legal execution […] but a criminal medical experiment […]. The hapless victims of this dastardly torture were Russian prisoners of war, entitled to the protection afforded by the laws of civilized nations […] [which] will not under any circumstances countenance the infliction of death by maiming or torture.419

199.  Second, according to the ICRC Commentary to Articles 32 and 147 of 1949 Geneva Convention IV:

[T]orture is an attack on the human person which infringes fundamental human rights. […]. There need not necessarily be any attack on physical integrity since the “progress” of science has enabled the use of procedures which, while they involve physical suffering, do not necessarily cause bodily injury.420

200.  In addition, the legal meaning of torture includes:

the infliction of suffering on a person to obtain from that person, or from another person, confessions or information. […]. It is more than a mere assault on the physical or moral integrity of a person. What is important is not so much the pain itself as the purpose behind its infliction […].421

201.  These explanations of the definition of torture under 1949 Geneva Convention IV support, in part, the actus reus and mens rea elements in the 1975 Declaration on Torture as well as the requirement that torture be inflicted for the purpose of obtaining information or a confession.

202.  Third, in the 1969 Greek Case, when interpreting and applying the prohibition against torture found under Article 3 of the European Convention on Human Rights, the European Commission set forth the following definition of torture that closely resembles the 1975 Declaration on Torture:

[A]ll torture must be inhuman and degrading treatment, and inhuman treatment also degrading. The notion of inhuman treatment covers at least such treatment as deliberately causes severe suffering, mental or physical, which, in the particular situation, is unjustifiable.

The word “torture” is often used to describe inhuman treatment, which has a purpose, such as the obtaining of information or confessions, or the infliction of punishment, and it is generally an aggravated form of inhuman treatment.422

203.  This definition notably contains the following elements: deliberate infliction on an individual person (mens rea); of aggravated physical or mental suffering (actus reus); for a purpose, specifically for purposes of obtaining information or confessions or infliction of punishment. Elsewhere in the Commission’s Report, the requirement of official involvement is discussed, albeit in the context of explaining that the Greek government had violated its treaty obligations, rather than as a constituent element of torture.423

204.  Finally, although the definition of torture in the 1975 Declaration on Torture was adopted by UN Member States as a non-binding General Assembly resolution, the resolution’s adoption “without a vote” (that is, unanimously)424 is arguably itself evidence that the definition in the 1975 Declaration on Torture was widely accepted by the international community. The Supreme Court Chamber notes that, at the time, the total voting membership of the General Assembly consisted of 144 States.425

205.  Therefore, on the basis of the foregoing, the Supreme Court Chamber holds that the definition of torture found in the 1975 Declaration on Torture was declaratory of customary international law from 1975-1979.

206.  Having established that the definition of torture in the 1975 Declaration on Torture was the applicable definition under customary international law for purposes of this case, the final matter before this Chamber is whether an act of rape such as that which was perpetrated at S-21 could constitute torture as a crime against humanity under the 1975 Declaration on Torture.

207.  In this case, the Trial Chamber held that, with respect to the actus reus of torture, “[c]ertain acts are considered by their nature to constitute severe pain and suffering. These acts include rape […].”426 Thus, “it is undisputed that rape may also constitute torture where all other elements of torture are established.”427

208.  The Supreme Court Chamber agrees. Rape is defined by the Trial Chamber as the non-consensual sexual penetration of the victim,428 committed by the perpetrator with intent and knowledge of lack of consent.429 As noted by the ICTY Appeals Chamber in the Kunarac case, “some acts establish per se the suffering of those upon whom they were inflicted. Rape is obviously such an act. […]. Sexual violence necessarily gives rise to severe pain or suffering, whether physical or mental, and in this way justifies its characterisation as an act of torture.”430 Furthermore, as stated by the ICTR Trial Chamber in Akayesu, rape is often “used for such purposes as intimidation [or] punishment […]. Like torture, rape is a violation of personal dignity, and rape in fact constitutes torture when it is inflicted by or at the instigation of […] a public official […].”431

209.  In this case, the Trial Chamber found that at S-21, “[a] variety of torture techniques”432 for interrogation purposes “were applied in an environment of extreme fear where threats were routinely put into practice and caused detainees severe pain and suffering, both physical and mental.”433 These interrogation methods included “one proven instance of rape.”434 Furthermore, the Trial Chamber found that “the S-21 interrogators […] who perpetrated acts of torture acted in official capacity.”435 These officials carried out acts constituting torture “for the purpose of obtaining a confession or of punishment.”436

210.  The factual findings of the Trial Chamber demonstrate that interrogation techniques were intentionally inflicted by public officials at S-21 for a specific purpose and caused severe pain or suffering. The Trial Chamber further established that the act of rape had been carried out for the purpose of extracting information from the victim. Accordingly, the Supreme Court Chamber finds that the Trial Chamber did not err in holding that the act of rape constituted torture as a crime against humanity. Given, however, that, as established above, rape did not constitute a discrete crime against humanity at that time, this act of rape cannot be subsumed as a crime against humanity under the conviction for the crime against humanity of torture.

211.  With regard to the principle of legality, the Supreme Court Chamber notes that because of post-World War II jurisprudence under the Control Council Law No. 10, it was foreseeable to the Accused that he could be prosecuted for torture as a crime against humanity at the time of his criminal conduct. Furthermore, at the relevant time the Accused had access to: the definition of torture in the 1975 Declaration on Torture as reflected in and supported by the definition of torture inferred from the facts of the cases under the Control Council Law No. 10; the definition of torture as a grave breach under the 1949 Geneva Conventions I-IV; and the definition of torture under Article 3 of the 1950 European Convention on Human Rights as explicated in the 1969 Greek Case. In addition, it was foreseeable that under the definition of torture in effect in 1975, the Accused could be prosecuted for torture as a crime against humanity where the actus reus constituted an act of rape and all other elements had been met.

212.  Finally, the Supreme Court Chamber agrees with the Trial Chamber that, “[a]lthough the immorality or appalling character of an act is not a sufficient factor to warrant its criminalisation under customary international law, it may in fact play a role in that respect, insofar as it may refute any claim by the Defence that it did not know of the criminal nature of the acts.”437 The Supreme Court Chamber notes that, at the time of the Accused’s criminal conduct, it was clear that torture constituted a grave violation of an individual’s fundamental human rights. As noted previously, by 1975 there was an absolute prohibition on torture as one of the most serious human rights violations in several international treaties and declarations. 438 Thus, this widespread recognition by the community of States of the gravity of torture contributed to the foreseeability of criminal prosecution for such conduct as a crime against humanity.

3.  Conclusion

213.  The Supreme Court Chamber finds that the Trial Chamber erred in holding that rape was a distinct crime against humanity under customary international law from 1975-1979. Accordingly, the Trial Chamber erred in subsuming rape as a distinct crime against humanity under the crime against humanity of torture. However, the Trial Chamber did not err in concluding that an instance of rape was covered by the definition of torture that existed under customary international law by 1975, as articulated in the 1975 Declaration Against Torture. Furthermore, given that rape as a crime against humanity had not yet crystallised at the time, the Trial Chamber did not err when it did not cumulatively convict the Accused for torture and rape as separate crimes against humanity.

214.  Therefore, on the basis of the foregoing, the Supreme Court Chamber dismisses this part of Ground 2 of the Co-Prosecutors’ Appeal.

E.  Persecution as a Crime Against Humanity from 1975-1979

215.  In response to the specific issues raised in the Co-Prosecutors’ Appeal concerning the Accused’s conviction for persecution as a crime against humanity, the Supreme Court Chamber turns to consider whether, in line with the principle of legality, persecution existed as a distinct crime against humanity under international law during the ECCC’s temporal jurisdiction. If so, the Chamber will then determine the crime’s requisite elements under its definition, as they stood from 1975-1979. As noted previously, persecution on political, racial or religious grounds is clearly listed as an underlying crime against humanity in Article 5 of the ECCC Law.439

1.  The Existence of Persecution as a Crime Against Humanity

216.  Persecution’s roots in international law began centuries before the IMT Charter first codified crimes against humanity as an international crime.440 In 1625, Hugo Grotius wrote his seminal work, De jure belli ac pacis, one of the foundational works of international law.441 Grotius authored this work during the Reformation, which saw the rise of various Christian sects, accompanied by waves of persecution. Regarding these events, Grotius deemed it “unjust to persecute with punishments those who receive the law of Christ as true, but entertain doubts or errors on some external points, taking them in an ambiguous meaning or different from the ancient Christians in their explanation of them.”442 Grotius extended this principle of non-persecution to non-Christians, reasoning that, “Christ being the author of a new law, will have no one brought to embrace his doctrine by the fear of human punishments.”443

217.  In addition, long before tribunals prosecuted international crimes, States often protested other States’ acts of persecution, especially when the victims belonged to a minority group that shared a bond with the protesting State. In some instances, States concluded bilateral treaties to regulate the treatment of a particular minority population and protect it from State-sponsored persecution.444 Moreover, nations that persecuted Christians gave Christian countries a casus belli upon the persecuting country.445 In extreme instances, countries would seek to protect minority groups in other countries by declaring war.446

218.  Thus, States have sought to guard against persecution under customary international law, long before the world wars of the twentieth century. It was, however, treated as a delict under public international law, viewed in the context of just reasons for a country waging war against another country, rather than as an international crime entailing individual criminal liability.

219.  Not until the aftermath of World War I was it first suggested that persecution is a crime against humanity. When examining breaches of the laws and customs of war and the laws of humanity by Germany and her allies during World War I, the Commission of Fifteen Members established in 1919 by the Preliminary Peace Conference concluded in its report that, “‘all persons belonging to enemy countries […] who have been guilty of offences against the laws and customs of war or the laws of humanity, are liable to criminal prosecution’.”447 The Commission then appended a list of violations to its report, and those categorised as crimes against humanity included, “the massacres of Armenians by the Turks and the massacres, persecutions, and expulsions of the Greek-speaking population of Turkey, both European and Asiatic.” 448 However, it was only after World War II that individual criminal responsibility for persecution as a crime against humanity was actually realised under international law. “[P]ersecutions on political, racial or religious grounds” was included in the definition of crimes against humanity codified under the IMT Charter, 449 IMTFE Charter, 450 Control Council Law No. 10 451 and the 1950 Nuremberg Principles.452

220.  In the end, the IMTFE did not convict any of the Japanese defendants for persecution or any other crime against humanity. In contrast, the trials of the Nazis provide a significant source of evidence for the development of persecution as a crime against humanity. In the IMT Judgement, the Court convicted defendants such as Hermann Wilhelm Göring, Joachim Von Ribbentrop, Alfred Rosenberg, Hans Frank, Wilhelm Frick, Julius Streicher, Walter Funk, Arthur Seyss-Inquart and Martin Bormann for crimes against humanity. Their crimes included persecutory acts directed against the Jewish and Polish civilian populations in Germany and in the occupied territories on racial and political grounds. 453 Furthermore, Defendant Bormann, Adolf Hitler’s secretary, “was extremely active in the persecution of the Jews not only in Germany but also in the absorbed or conquered countries. He took part in the discussions which led to the removal of 60,000 Jews from Vienna to Poland.” 454 In addition, he “devoted much of his time to the persecution of the Churches […] within Germany.”455

221.  Similarly, in the NMT trials in the German-occupied zones, several convictions were reached for persecution as a crime against humanity on racial, political or religious grounds. For example, in the Justice Case, Defendant Oswald Rothaug was convicted for racial persecution of Poles and Jews.456 His Co-Defendant, Curt Rothenberger, was also convicted for persecution of Poles and Jews because he deprived them of their rights in civil and penal cases.457 Furthermore, in the RuSHA Case, the Tribunal reached convictions against several defendants who were members of one of four agencies of the SS concerned with various aspects of the Nazi racial program. 458 The Tribunal convicted them for the crime of persecution on racial grounds against Jews and Poles.459

222.  Another example is the Ministries Case whereby Defendants Richard Walther Darré, Otto Dieterich, Hans Heinrich Lammers, Wilhelm Stuckart and Lutz Schwerin von Krosigk, were found guilty for persecution460 of Jews, Poles and “enemies and opponents of national socialism” on racial and political grounds.461 In addition, while Defendants Gustav Adolf Steengracht von Moyland, Ernst von Weizsaecker and Ernst Woermann were found not guilty for persecution on religious grounds because there was insufficient proof of individual criminal responsibility, 462 the Tribunal nevertheless found that the Nazi regime had a “definite governmental plan” 463 to persecute the Catholic Church, its dignitaries, priests, nuns and communicants, in Germany and the occupied territories.464

223.  Furthermore, the Supreme Court Chamber notes that the application of persecution as a crime against humanity to Nazi officials and their allies continued after the IMT and NMT proceedings. In 1946, the Supreme National Tribunal of Poland convicted Artur Greiser for acts of persecution against Poles, Jews, Catholics and Protestants. 465 Later, in 1968, the Israeli Supreme Court convicted Adolf Eichmann for persecution and supported the conviction by pointing to the fact that “in carrying out the above-mentioned activities [of ‘murder, extermination, enslavement, starvation, and deportation of the civilian Jewish population’] he persecuted Jews on national, racial, religious and political grounds.”466

224.  Likewise, in 1985, the French Court of Cassation allowed the charge against Klaus Barbie of “persecution against innocent Jews carried out for racial and religious motives with a view to their extermination, […] in furtherance of the ‘final solution’” during World War II to proceed. 467 He was convicted and sentenced to life imprisonment for persecution as a crime against humanity in 1987, which was confirmed by the Court of Cassation in 1988.468 In 1986, the Zagreb District Court in Croatia sentenced to death Andrija Artuković, a high-level member of the Ustaša movement in World War II.469 The Court found that because of Artuković’s Ustaša orientation, he ordered mass killings and deportations of individuals to concentration camps as part of a program to create a pure Croatia.470 The program implemented “persecutions, concentration camps and mass killings of Serbs, Jews, Gypsies, as well as Croats who did not accept the ideology.”471

225.  Thus, the Supreme Court Chamber finds that by 1975, there was evidence of State opinio juris and practice recognizing persecution on racial, religious or political grounds as a crime against humanity under customary international law. As noted previously, not only was persecution codified by international treaty in the IMT Charter,472 which was endorsed by 19 States,473 it was then prosecuted by the IMT, an international tribunal, with respect to several defendants. Furthermore, the General Assembly unanimously adopted Resolution 95 (I) finding that the IMT Charter and Judgment reflect principles of international law.474 Finally, persecution’s status as a crime against humanity under customary international law was confirmed by State practice reaching convictions for persecution against a number of defendants both before the hybrid military NMTs and in national courts for criminal conduct perpetrated during World War II. 475

2.  The Definition of Persecution as a Crime Against Humanity

226.  Turning to the definition of persecution as a crime against humanity during the ECCC’s temporal jurisdiction, the Supreme Court Chamber recalls that when convicting the Accused for persecution on political grounds in this case,476 the Trial Chamber articulated the elements of the crime as follows:

  1. (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 law477 (actus reus); and

  2. (ii)  deliberate perpetration of an act or omission with the intent to discriminate on political, racial or religious grounds (mens rea).478

227.  With respect to the actus reus, the Chamber stated that persecutory acts include, but are not limited to, other underlying crimes against humanity such as extermination, enslavement and torture. 479 Consequently, they may also include “harassment, humiliation and psychological abuse, confinement in inhumane conditions, cruel and inhumane treatment, deportation, forcible transfer and forcible displacement, and forced labour.”480 As such, the list of possible persecutory acts is not comprehensive. However, conduct that is not enumerated as one of the other underlying crimes against humanity “must be of equal gravity or severity to the specified underlying offences to constitute persecution.”481 In determining whether certain acts or omissions are severe enough to constitute persecution, they “must be evaluated not in isolation but in context, by looking at their cumulative effect.”482 Furthermore, the conduct should “generally” constitute a “gross or blatant denial of a fundamental human right.”483

228.  In addition, when stating that a persecutory act or omission must “discriminat[e] in fact”, the Trial Chamber clarified that “[t]his act or omission must actually discriminate: a discriminatory intention is not sufficient, the act or omission must have discriminatory consequences.” 484 An act or omission is discriminatory when the victim is targeted because of the victim’s membership in a group as subjectively defined by the perpetrator on “political, racial or religious” grounds.485

229.  With respect to the mens rea, the Trial Chamber held that in addition to the deliberate intent required for the act or omission, “[t]he existence of a ‘specific intent to cause injury to a human being because he belongs to a particular community or group’ is sufficient to establish the intent required for the crime of persecution.”486 However, “[t]his specific intent is not a legal element of the other underlying crimes against humanity.” 487 Finally, to establish the existence of specific discriminatory intent, the intent may not be inferred simply by looking to the general discriminatory nature of a broader attack.488 Rather, it may be inferred in the context of such an attack if the facts of the case indicate that the specific circumstances “‘surrounding commission of the alleged acts substantiate the existence of such [discriminatory] intent.’”489

230.  The Supreme Court Chamber notes that the Trial Chamber derived this definition from the jurisprudence of the ad hoc Tribunals. The Trial Chamber acknowledged that, while persecution was clearly a crime against humanity under international law following World War II, the elements of the offence had received limited explicit elaboration by the post-World War II Tribunals or national courts prior to the ad hoc Tribunals’ jurisprudence in the 1990s.490 As a result, it was up to the ad hoc Tribunals to “outline the contours of this offence.”491 Simultaneously, when adopting the ad hoc Tribunals’ articulation of persecution, the Trial Chamber endorsed the following statement in the ICTY Trial Judgement in Kordić and Čerkez, noting that

[n]either international treaty law nor case law provides a comprehensive list of illegal acts encompassed by the charge of persecution, and persecution as such is not known in the world’s major criminal justice systems. The Trial Chamber agrees […] that the crime of persecution needs careful and sensitive development in light of the principle of nullum crimen sine lege.492

231.  The Supreme Court Chamber agrees that post-World War II international or national jurisprudence does not explicitly outline the elements of persecution as a crime against humanity. The Chamber notes that in addition to the Kordić and Čerkez Trial Judgement, other ICTY jurisprudence has recognised the lack of clearly articulated elements. 493 This is due in part to uncertainty over persecution’s relationship vis-à-vis other underlying crimes against humanity from the very beginning of its codification as an international crime. Indeed, during the drafting of the IMT Charter, the United Nations War Crimes Commission (“UNWCC”) first defined crimes against humanity as “crimes committed against any person without regard to nationality, stateless persons included, because of race, nationality, religious or political belief, irrespective of where they have been committed.”494 As such, this draft definition indicates that initially, all crimes against humanity were understood to require a special discriminatory intent such that each would constitute persecution.

232.  However, in the final draft of the IMT Charter, persecution was distinguished from other crimes against humanity as follows:

  1. (c)  Crimes against humanity: namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war; or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.495

233.  Under this text, persecution was clearly separated from other crimes against humanity by the semi-colon and disjunctive “or”. Moreover, the special approach to persecution included the nexus requirement to war crimes or crimes against peace in the Charter. This nexus requirement was subsequently extended to apply to the entirety of crimes against humanity under the Berlin Protocol of 6 October 1945 with the replacement of the semi-colon with a comma;496 the IMT’s interpretation of the IMT Charter;497 and, ultimately, the 1950 Nuremberg Principles.498 However, as one commentator has noted, “the removal of the semi-colon was never interpreted as extending the requisite political, racial or religious motive to all forms of crimes against humanity in conformity with previous drafts.”499 Rather, after the passage of the Berlin Protocol, the Legal Committee of the UNWCC concluded that there remained two types of crimes against humanity, “those of the ‘murder-type’ (murder, extermination, enslavement, deportation and the like), and those of the ‘persecution type’ committed on racial political or religious grounds.”500

234.  In light of this uncertainty, as well as the lack of clear guidance as to the substance of the elements of persecution in the post-World War II case law, the Supreme Court Chamber emphasises that under the principle of legality, the content of the elements of the crime must be carefully deduced from the reasoning and factual findings of the post-World War II tribunals. This is required in order to determine whether, by 1975, they were reasonably foreseeable and accessible to the Accused in this case. The Supreme Court Chamber recalls that the principle of legality does not prohibit a Chamber from interpreting or clarifying the law or the contours of the elements of a crime. 501 Furthermore, it does not prevent the Chamber from progressive development of the law.502 However, the principle does not go so far as to allow a Chamber to create new law or to interpret existing law in such a way as to go beyond the reasonable bounds of clarification.503

235.  As such, the present task before the Supreme Court Chamber is to determine whether the definition of the elements of persecution as a crime against humanity adopted by the Trial Chamber from the ad hoc Tribunals’ jurisprudence is correct. In doing so, the Chamber notes that the ad hoc Tribunals began their determination of that definition in the 1990s, reaching resolution only after a process of internal variation in the case law over several years, some 20 years or more after the ECCC’s temporal jurisdiction. Where the principle of legality is concerned, the Chamber must consider whether the debate over that definition was with respect to interpreting or clarifying the contours of the elements of persecution as they existed in law by 1975. Alternatively, the Chamber must determine whether the elaboration of those elements is, in effect, new law that did not exist at the time relevant for the ECCC and therefore violates the principle of legality.

a.  The Mens Rea Element

236.  First, with respect to the mens rea requirement that there be “deliberate” perpetration of an act or omission with the specific intent to persecute on racial, religious or political grounds, the Supreme Court Chamber finds that this element of persecution is supported by post-World War II jurisprudence. The IMT and NMTs’ factual findings consistently indicated that perpetrators were convicted for knowingly and wilfully committing the persecutory act or omission, with discriminatory intent, which was indicated within the context of their knowing and voluntary participation in the German government’s persecutory plan. 504 The tribunals inferred that discriminatory intent not simply from the existence of the plan, but also from specific circumstances surrounding the commission of the alleged persecutory acts. As noted below, defendants targeted victims solely because of their membership in a specific group, often making public statements that were clearly discriminatory in nature when doing so. The requisite specific intent does not however extend to require that the perpetrator identify himself with the specific underlying tyrannical motives of a regime pursuing a persecutory policy or campaign.505

237.  Furthermore, as noted previously, under the express language of their charters, the post-World War II tribunals considered acts or omissions as persecutory in nature where they were perpetrated against individuals on political, racial or religious grounds. 506 Subsequent national prosecutions of former Nazis in Poland, Israel, France and Croatia for persecution replicated this required discriminatory animus.507 On this issue, the Supreme Court Chamber notes that, “[t]he experience of Nazi Germany [also] demonstrated that crimes against humanity may be committed on discriminatory grounds other than those enumerated […], such as physical or mental disability, age or infirmity, or sexual preference.”508 That said, the Supreme Court Chamber notes that the ECCC’s jurisdiction is circumscribed by the discriminatory grounds expressly included under the ECCC Law, namely, “persecutions on political, racial or religious grounds.”509

238.  In addition, the Supreme Court Chamber agrees with the Trial Chamber that there is no requirement that the specific discriminatory intent apply to all other underlying crimes against humanity.510 The plain language of Article 5 of the ECCC Law, as well as the clear separation of persecution from other underlying crimes against humanity in the drafting history and text of the IMT Charter, Control Council Law No. 10 and 1950 Nuremberg Principles, confirm this holding. Not only does the plain meaning of these instruments dictate this result, but it would be “illogical” and “superfluous” for the drafters to specifically indicate that persecution is carried out “on political, racial or religious grounds” if indeed that specific intent requirement were to apply to all underlying crimes against humanity.511 Interpretation of these instruments in light of their humanitarian object and purpose further supports this conclusion. The aim of the drafters was:

to make all crimes against humanity punishable, including those which, while fulfilling all the conditions required by the notion of such crimes, may not have been perpetrated on political, racial or religious grounds […]. [O]ne fails to see why they should have seriously restricted the class of offences coming within the purview of “crimes against humanity”, thus leaving outside this class all the possible instances of serious and widespread or systematic crimes against civilians on account only of their lacking a discriminatory intent.512

239.  Also, in national jurisprudence immediately after World War II, courts found that crimes against humanity do not necessarily consist of persecutory or discriminatory actions.513 Finally, the Supreme Court Chamber notes that the Trial Chamber’s mens rea for persecution is bolstered by the relatively uncontroversial adoption of this same formulation of the mens rea in ad hoc Tribunal jurisprudence.514

240.  Consequently, the Supreme Court Chamber affirms the Trial Chamber’s articulation of the requisite mens rea for persecution by 1975. Furthermore, having reviewed the factual findings of the Trial Chamber in this case, the Chamber concludes that the majority did not err in its application of the requisite mens rea for persecution to its findings515 in reaching the conclusion that “the Accused shared the intent motivating CPK policy to eliminate all political enemies as identified by the Party Centre, and to imprison, torture, execute and otherwise mistreat S-21 detainees on political grounds”; 516 moreover, he “influenced the definition of the groups subjected to them [i.e., “discriminatory CPK policies”].”517 This Chamber agrees that the “overwhelming inference” that is to be drawn from the Accused’s conscious, willing and zealous implementation of the discriminatory CPK policy against its enemies, of which he was aware, demonstrates that the “Accused possessed the specific intent required for the offence of persecution.”518 The specific motive out of which he engaged in the persecution, that is, whether he internalised the goals of the CPK behind the persecutory policy or only wanted to prove himself as a loyal and efficient member of the Party, 519 is immaterial for finding that he possessed the requisite specific intent.

b.  The Actus Reus Element

241.  Second, regarding the actus reus element of persecution as a crime against humanity, the Supreme Court Chamber observes that the content of this element in post-World War II jurisprudence is less clear. This is evidenced not only by the text and reasoning of that jurisprudence, but also by the gradual and controversial debate within the forum of the ad hoc Tribunals over several years. Therefore, in light of the principle of legality, this Chamber must carefully consider whether the Accused in this case could have reasonably foreseen by 1975 the articulation of the actus reus adopted by the Trial Chamber, which only became settled law in the ad hoc Tribunals by 2003.520 As noted above, when expounding on the actus reus of persecution, the Trial Chamber determined that it constitutes an act or omission: 1) “which denies or infringes upon a fundamental right laid down in international customary or treaty law”; and 2) “discriminates in fact.”521

i.  An Act or Omission that Denies or Infringes Upon a Fundamental Right under Customary International Law or Treaty Law

242.  Turning to the first prong of this element, which defines the universe of acts or omissions that could constitute persecution, the Supreme Court Chamber recalls that the IMT described the persecutory acts of the Nazi regime as follows:

The persecution of the Jews at the hands of the Nazi Government […] is a record of consistent and systematic inhumanity on the greatest scale.522

With the seizure of power, the persecution of the Jews was intensified. A series of discriminatory laws were passed, which limited the offices and professions permitted to Jews; and restrictions were placed on their family life and their rights of citizenship. By the autumn of 1938, the Nazi policy towards the Jews had reached the stage where it was directed towards the complete exclusion of Jews from German life. Pogroms were organized, which included the burning and demolishing of synagogues, the looting of Jewish businesses, and the arrest of prominent Jewish businessmen. A collective fine of one billion marks was imposed on the Jews, the seizure of Jewish assets was authorized, and the movement of Jews was restricted by regulations to certain specified districts and hours. The creation of ghettos was carried out on an extensive scale, and by an order of the Security Police, Jews were compelled to wear a yellow star to be worn on the breast and back. 523

The Nazi persecution of Jews in Germany before the war, severe and repressive as it was, cannot compare, however, with the policy pursued during the war in the occupied territories. Originally the policy was similar to that which had been in force inside Germany. Jews were required to register, were forced to live in ghettos, to wear the yellow star, and were used as slave laborers. In the summer of 1941, however, plans were made for the “final solution” of the Jewish question in all of Europe. This “final solution” meant the extermination of the Jews […].524

243.  The IMT noted that the Nazis employed different atrocious methods, including medical experimentation, to exterminate the Jews. For example, in the concentration camps, Jews fit for work were used as slave labourers, while Jews not fit for work were destroyed in gas chambers. 525 Many Jews also died from disease and starvation.526 “Beating, starvation, torture, and killing were general” in the camps;527 the clothes, money and valuables of the inmates were salvaged, and even the hair of the Jewish female inmates and the ashes of Jews who died were taken for economic use.528 The Tribunal also noted that special missions were sent to occupied countries to organize massive deportation of Jews for “liquidation.”529 Adolf Eichmann, who was in charge of this programme, estimated that as a result of the anti-Jewish policy, a total of six million Jews were killed, four million of whom “were killed in the extermination institutions.”530

244.  This corpus of facts, along with information about other persecutions, underlay convictions of multiple defendants for persecution as a crime against humanity for discriminatory acts that amounted to violations of individual rights. These violations were progressively more serious in nature ranging from abrogation of civil, political, economic and social rights to deportation to slave labour to extermination.

245.  The Supreme Court Chamber observes that in several instances, the IMT found that Nazi officials committed persecution through acts such as economic discrimination, which were not crimes against humanity in their own right. However, these acts were committed in the context of a broader persecutory State policy or plan and in the furtherance of other acts that do constitute crimes against humanity such as deportation, enslavement and ultimately extermination.

246.  For example, Defendant Göring discussed with Nazi Economic Minister Walther Funk the banning of Jews from all business activities as part of the solution to the Jewish problem. 531 Defendant Funk himself “participated in the early Nazi program of economic discrimination against the Jews” and “proposed a decree providing for the banning of Jews from all business activities.”532 In a public speech he declared “that the elimination of the Jews from economic life followed logically their elimination from political life.”533 In addition, Defendant Göring fined the Jews one billion marks collectively as part of the ultimate goal of bringing “about a complete solution of the Jewish question.”534 Similarly, the “rabidly anti-Semitic” Defendant Frick was convicted in part for having “drafted, signed, and administered many laws designed to eliminate Jews from German life and economy,”535 which “paved the way for the ‘final solution.’” 536 He was also found responsible for prohibiting Jews from following various professions and for confiscating their property.537 The IMT further found that as Reich Commissioner of The Netherlands, Defendant Seyss-Inquart issued a series of decrees to persecute the Jews, including “imposing economic discriminations against the Jews”, “requiring their registration”, “compelling them to reside in ghettos and to wear the star of David.”538

247.  Subsequent trials of German war criminals under the Control Council Law No. 10 before the NMTs recognised a similarly broad interpretation of persecutory acts, which covered numerous different acts beyond other crimes against humanity, including civil, political and socio-economic forms of persecution that were often imposed as part of a broader plan of total annihilation of a race.539 For example, in the Ministries Case, the Tribunal found that:

[t]he persecution of Jews went on steadily from step to step and finally to death in foul form. The Jews of Germany were first deprived of the rights of citizenship. They were then deprived of the right to teach, to practice professions, to obtain education, to engage in business enterprises; they were forbidden to marry except among themselves and those of their own religion; they were subject to arrest and confinement in concentration camps, to beatings, mutilation and torture; their property was confiscated; they were herded into ghettos; they were forced to emigrate and to buy leave to do so; they were deported to the East, where they were worked to exhaustion and death; they became slave laborers; and finally over six million were murdered.540

248.  Furthermore, the NMT found that the “judicial persecution” that formed the core of the Ministries Case sufficed to convict Defendant Hans Lammers of crimes against humanity, reasoning that:

[i]t was by means of this corruption of the courts of justice that Jews and other enemies and opponents of national socialism were deprived of the ordinary and commonly recognized rights to fair trial and received sentences, including that of death, shockingly disproportionate to the offenses committed.541

249.  Similarly, the Supreme Court Chamber recalls that in the Justice Case, German judges were convicted of persecution of Poles and Jews as a crime against humanity under charges of discriminatory application of the law.542 The Tribunal first examined the national plan or programme for racial persecution. 543 The Tribunal noted that, “[f]undamentally, the program was one for the actual extermination of Jews and Poles, either by means of killing or by confinement in concentration camps.” 544 In the meantime, the Tribunal noted that “lesser forms of racial persecution” systematically practiced by governmental authority also constituted an integral part of the general policy or programme.545 These forms included: exclusion of Jews from the legal profession; prohibition of intermarriage between Jews and persons of German blood; severe punishment for sexual intercourse between Jews and German nationals; exclusion of Jews from public office, “from educational institutions, and from many business enterprises”; and confiscation of the property of Jews.546 With regard to the enforcement and application of the discriminatory laws against the Jews, the Tribunal noted that:

[t]he law against Poles and Jews […] was rigorously enforced. Poles and Jews convicted of specific crimes were subjected to different types of punishment from that imposed upon Germans who had committed the same crimes. Their rights as defendants in court were severely circumscribed. Courts were empowered to impose death sentences on Poles and Jews even where such punishment was not prescribed by law, if the evidence showed “particularly objectionable motives.” And, finally, the police were given carte blanche to punish all “criminal” acts committed by Jews without any employment of the judicial process.547

250.  In other instances, the IMT convicted Defendants for persecutory acts that did constitute other underlying crimes against humanity, such as murder, extermination and deportation. For example, Defendant Von Ribbentrop “played an important part in Hitler’s ‘final solution’ of the Jewish question.” 548 He ordered the German diplomatic representatives to “Axis satellites to hasten the deportation of Jews to the East.”549 Similarly, with respect to Defendant Rosenberg, the Tribunal found that:

[h]is subordinates engaged in mass killings of Jews, and his civil administrators in the East considered that cleansing the Eastern Occupied Territories of Jews was necessary. In December 1941, he made the suggestion to Hitler that in a case of shooting 100 hostages, Jews only be used.550

251.  Likewise, Defendant Bormann was “extremely active in the persecution of the Jews,” and advocated the use of “ruthless force” to secure “the permanent elimination of Jews.”551 His persecutory acts included participating in mass deportation of the Jewish people from Vienna.552 Defendant Frank, the German Governor-General of Poland, was found guilty for “the persecution of the Jews [which] was immediately begun” when he assumed control of Poland.553 In its Judgement, the IMT noted that Frank’s persecution depleted the Jewish population of Poland from between two and a half million to three and a half million when he assumed office, to 100,000 by the beginning of 1944.554 The IMT also found that he economically exploited the Poles to such an extent that they starved and “epidemics were widespread.”555 The Tribunal similarly found that Defendant Seyss-Inquart “advocated the persecution of the Jews” 556 and as Reich Commissioner of the Netherlands, he enabled the “mass deportation of almost 120,000 of Holland’s 140,000 Jews to Auschwitz and the ‘final solution.’”557

252.  Trials before the NMTs likewise recognised persecutory acts to encompass other crimes against humanity, such as murder, extermination and enslavement. In the Justice Case, Defendant Rothaug was convicted for, among other things, adjudicating a case in which the Defendant was condemned and executed merely because he was Jewish.558 Similarly, in the Ministries Case, the IMT found that Defendant Richard Walther Darré knew of the plans to “unlawfully deprive Jews and Poles of their land and reduce them to serfdom”559 as well as relegate them to slave labour, and was a conscious and willing participant in the plans by assuming a leading position in the agencies carrying out these plans.560 Meanwhile, Defendant Otto Dietrich was found guilty for participating in persecution of the Jews by approving of press directives calling for their annihilation.561

253.  The Supreme Court Chamber considers that this breadth of treatment of the actus reus of persecution as a crime against humanity is particularly noteworthy in two respects. First, the post-World War II jurisprudence speaks to the wide variety of underlying acts that could constitute persecution as a crime against humanity. 562 These include other international crimes, such as other underlying crimes against humanity,563 or war crimes564 already found in the IMT Charter and Control Council Law No. 10. They also include acts not expressly listed in those instruments, as long as they meet the other requirements under the definition of persecution.

254.  Second, the other acts not found in the instruments constituted a broad range of breaches of individual rights including rights to property, a fair trial, equal protection of the law, citizenship, work, education, marriage, privacy and freedom of movement. That said, “not every denial of a human right […] constitute[d] a crime against humanity”565 under post-World War II jurisprudence. Rather, as laid out in the Flick Case, and later reiterated in the I.G. Farben Case, the doctrine of ejusdem generis was used to interpret the charters of the tribunals to set “clearly defined limits on the types of acts which qualify as persecution.”566 This doctrine requires that, at a minimum, acts of persecution as a crime against humanity must be equal in gravity or severity to other enumerated crimes against humanity.567 As reasoned in the Flick Case with respect to taking of Jewish industrial property:

Not even under a proper construction of the section of [Control Council] Law No. 10 relating to crimes against humanity, do the facts [compulsory taking of Jewish industrial property] warrant conviction. The “atrocities and offenses” listed therein, “murder, extermination,” etc., are all offenses against the person. Property is not mentioned. Under the doctrine of ejusdem generis the catch-all words “other persecutions” must be deemed to include only such as affect the life and liberty of the oppressed peoples. Compulsory taking of industrial property, however reprehensible, is not in that category.568

255.  Consequently, the Kupreškić Trial Chamber held that the only conclusion that may be drawn from this use of the doctrine of ejusdem generis is that “only gross or blatant denials of fundamental human rights” affecting individual life and liberty may be deemed to rise to the level of gravity or severity of other enumerated crimes against humanity.569

256.  The Supreme Court Chamber notes that the post-World War II tribunals never considered persecutory acts in isolation. Rather, the tribunals considered them in the context of furthering a larger persecutory campaign, the ultimate goal and end result of which was the gross violation of fundamental rights, often constituting other underlying crimes against humanity. The tribunals assessed the acts as part of a chain of events, as a series of acts the consequences of which were extremely grave. Similarly, the tribunals analysed them in connection with other serious violations of human rights for the role they played in being the means by which violation of fundamental rights was made possible. Furthermore, the tribunals did not consider persecutory acts individually, but rather examined them as a whole in conjunction with one another, looking at their cumulative effect on an entire population.

257.  In sum, the Supreme Court Chamber generally agrees with the Trial Chamber that the first prong of the actus reus of persecution is that it constitutes an act or omission that denies or infringes upon a fundamental right laid down in customary international law or treaty. That said, the Supreme Court Chamber emphasises that under post-World War II precedent, the crux of the analysis lies not in determining whether a specific persecutory act or omission itself breaches a human right that is fundamental in nature. Rather, it lies in determining whether or not the persecutory acts or omissions, when considered cumulatively and in context, result in a gross or blatant breach of fundamental rights such that it is equal in gravity or severity to other underlying crimes against humanity. Indeed:

it is the context of the individual acts and the necessity that the acts, as well as the violations occasioned by them be examined collectively that determines the gravity of the acts as a whole, and that it is this gravity which determines whether or not the rights violated are therefore “fundamental” for the purposes of the crime of persecution.570

258.  Of course, as evidenced by the post-World War II jurisprudence referenced previously, although persecution often constitutes a series of acts, a single act or omission may be grave or serious enough to be persecution where it results in the gross or blatant denial of a fundamental human right under treaty or customary international law.571 Similarly, acts or omissions that constitute other international crimes, particularly other underlying crimes against humanity, may also constitute persecution.572

259.  To reiterate, in analysing the gravity or severity of the conduct, other factors that must be considered include whether the act or omission was committed in the context of, or as part of a chain of events in a larger persecutory campaign the ultimate goal and end result of which was extremely grave, resulting in gross violation of fundamental rights, often other underlying crimes against humanity. In addition, it is important to note the cumulative effect of the persecutory act or omission when committed in conjunction with other similar acts or omissions. Finally, it must be considered that whether an act or omission rises to the level of persecution is not only “a function of its apparent cruelty, but of the discriminatory effect the act seeks to encourage within the general populace”573 against a targeted group. In other words, the fact that an act or omission is targeted at a particular individual merely because of that individual’s membership in a particular group intensifies its gravity or severity.

260.  The Supreme Court Chamber observes that in the ad hoc Tribunals’ jurisprudence, Chambers consistently have held that the crime of persecution may consist of other underlying crimes against humanity,574 crimes listed elsewhere in the Tribunals’ statutes, 575 or other acts not found in those statutes. 576 They also consistently have found that these acts need to be equal in severity and gravity to other underlying crimes against humanity.577 Where they have differed somewhat is with respect to what sort of conduct rises to the requisite level of gravity and severity. A few of the ICTY Chambers have found that only other international crimes should fit into this category of conduct.578 Meanwhile, the Stakić Trial Chamber held that conduct resulting in the breach of any human right under treaty or customary international law may constitute persecution.579 Still another Chamber, the Krnojelac Trial Chamber, determined that there is no separate requirement of a gross or blatant denial of a fundamental human right; rather, what is important is for a persecutory act or omission to rise to the requisite level of gravity or seriousness as other crimes against humanity. 580 However, that Chamber then concluded that only “gross or blatant denial of fundamental human rights” would meet the gravity test.581

261.  While it is now settled that persecutory acts need not be international crimes582 but simply must result in breaches of fundamental human rights under treaty or customary international law in order to rise to the requisite level of gravity and severity,583 the Supreme Court Chamber finds that the debate among a handful of chambers in the ad hoc Tribunals preceding this result does not violate the principle of legality in this case. As noted above, 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. This principle, first applied after World War II in the Flick Case, prevents the category of persecutory acts under the ECCC Law from being too broad or vague. It also sets specific limits on the types of acts that may qualify as persecution. The debate in the ad hoc Tribunals has merely been about interpretation of this well-established gravity and severity test as Chambers have sought to define the contours of the category of persecutory acts under the complex facts of their specific cases.

262.  In conclusion, the Supreme Court Chamber affirms the first prong of the Trial Chamber’s definition of the actus reus of persecution as a crime against humanity in light of these clarifications. Furthermore, in finding that this part of the actus reus was fulfilled under the facts of this case because the underlying acts of persecution for which the Accused was found responsible are themselves discrete crimes against humanity,584 and therefore are clearly acts of significant gravity which result in the violation of fundamental rights, the Trial Chamber did not err.585

ii.  An Act or Omission that Discriminates in Fact

263.  Turning to the second prong of the Trial Chamber’s definition of the actus reus, namely, that the persecutory act or omission must “discriminate in fact” such that there are actual discriminatory consequences, the Supreme Court Chamber finds that the factual findings in post-World War II jurisprudence, as surveyed in part above, support such a requirement. The Chamber is unable to identify any case before the IMT or NMTs in which defendants were convicted for persecution on the basis of the existence of specific discriminatory intent alone. These tribunals always pointed to acts by the defendants that were clearly aimed at individuals who were members of a targeted group, resulting in the intended discrimination. As noted by one commentator, citing by way of example to the Ministries Case, persecution was used to describe discriminatory acts or the “treatment suffered by the Jews and other groups specifically targeted by the Nazis.”586

264.  In line with this precedent, the requirement of discrimination in fact was articulated by the Trial Chamber in the ICTY’s very first case, the Tadić case,587 and was explicitly noted or applied by Trial Chambers in subsequent cases,588 until the Kvočka Trial Chamber distinctly rejected this aspect of the actus reus in contrast to earlier jurisprudence.589 The Kvočka holding was due to the reality that the ICTY Statute does not explicitly state whether an act committed on political, racial or religious grounds must actually result in discrimination against an individual of a targeted group. The Trial Chamber reasoned that under the ICTY Statute, “discriminatory grounds form the requisite criteria, not membership in a particular group,” implying that “discriminatory grounds” applies to the mens rea alone and not the actus reus.590

265.  The Krnojelac Trial Chamber responded by finding that such an approach to statutory interpretation would result in individuals being convicted for persecution where no one was actually persecuted and that “the relevant discriminatory intent necessarily assumes that the victim is a member of a political, racial or religious group.”591 Indeed, often, discriminatory intent is proved in part on the basis of the victim belonging to a particular group. Furthermore, the Trial Chamber reasoned that the Kvoćka Trial Chamber approach, by only requiring discriminatory intent and not a discriminatory act, blurs the clear distinction between persecution and other crimes against humanity first established in the IMT Charter. In addition, it is not in line with the object and purpose of persecution as a crime against humanity, which is specifically to protect “members of political, racial and religious groups from discrimination on the basis of belonging to one of these groups.”592

266.  Subsequent to the Krnojelac Trial Judgement’s rejection of the Kvoćka Trial Chamber’s approach, the Krnojelac Appeals Chamber affirmed the requirement that the actus reus for persecution requires discrimination in fact,593 and ICTY and ICTR jurisprudence has followed this holding since.594

267.  On the basis of the foregoing, the Supreme Court Chamber concludes that by 1975, “discrimination in fact” or the required demonstration of actual discriminatory consequences was indeed a required part of the actus reus of persecution as highlighted by the Trial Chamber in this case. Not only do the factual findings for the convictions reached for persecution in the post-World War II jurisprudence support this holding, but so does the largely consistent ad hoc Tribunals’ jurisprudence subsequent to the ECCC’s temporal jurisdiction. While one ICTY Trial Chamber clearly departed from such a requirement, it was overruled by the Appeals Chamber as the final arbiter of the law. Thus, the Supreme Court Chamber does not find that this instance of disagreement calls into question its holding under the principle of legality.

268.  In addition, the Chamber notes that this conclusion is in line with the 1948 Genocide Convention’s definition of genocide, which belongs to the same genus as persecution in the sense that perpetrators of genocide target their victims on the basis of group membership.595 Under that definition, the actus reus of genocide must in fact target a member or members of a group.596 “While it is clear that the necessary intent for genocide is more extreme than that required for persecution [with specific intent to destroy a group], it is not at all clear why genocide would necessitate a result corresponding to the [discriminatory intent], while persecution would not.”597

269.  Finally, the Supreme Court Chamber acknowledges that ad hoc Tribunal jurisprudence has lacked some internal cohesion with respect to interpretation and application of the “discriminatory in fact” requirement as opposed to its existence in law. Some debate has centred around whether there can be discrimination in fact when the perpetrator is objectively mistaken as to the victim’s membership in the targeted group.598

270.  Again, the Supreme Court Chamber does not consider this debate to call into question its affirmation of the “discrimination in fact” requirement within the actus reus of persecution by 1975 under the principle of legality. The incoherence in the ad hoc Tribunals’ jurisprudence does not challenge that discrimination in fact is legally required; rather, it calls into question what circumstances actually constitute discrimination in fact. As such, the debate has been with respect to clarifying the substance and contours of this established requirement in the face of applying it to the factual circumstances of a given case.

271.  Consequently, the Supreme Court Chamber finds that the Trial Chamber did not err when it adopted the discrimination in fact requirement under the actus reus for persecution.

272.  Furthermore, with respect to the interpretation of the discrimination in fact requirement, this Chamber agrees with the Trial Chamber that an act or omission is discriminatory in fact where “a victim is targeted because of the victim’s membership in a group defined by the perpetrator on specific grounds, namely on political, racial or religious basis.”599 With regard to political grounds specifically, the perpetrator may define the targeted victims based on a subjective assessment as to what group or groups pose a political threat or danger. The group or groups persecuted on political grounds may include various categories of persons, such as: officials and political activists; persons of certain opinions, convictions and beliefs; persons of certain ethnicity or nationality; or persons representing certain social strata (“intelligentsia”, clergy, or bourgeoisie, for example). Furthermore, the targeted political group or groups may be defined broadly by a perpetrator such that they are characterised in negative terms and include close affiliates or sympathisers as well as suspects.600 In practice, acts against suspects, sympathizers and affiliates also have an impact on the primary targets of the persecution, adding to their overall oppression and isolation. As such, specific acts or omissions of the perpetrator committed against the suspects, sympathizers or affiliates remain acts or omissions committed against the targeted group or groups as whole.

273.  Accordingly, the Supreme Court Chamber finds that the Trial Chamber did not err in finding under the discrimination in fact requirement that the targeted political groups in this case encapsulated “all real or perceived political opponents [to the CPK], including their close relatives or affiliates” as defined by the Party Centre.601 The Supreme Court Chamber stresses, however, that under the facts of the case, the more accurate description of the targeted groups is “all political enemies as defined by the Party Centre,”602 including their close relatives or affiliates; that is, emphasising that the CPK was focused not only on actual political activity or political convictions of the targeted group, but on its own designation of certain classes of persons who it considered to pose a political threat.603

274.  In addition, the Supreme Court Chamber emphasizes that the requirement of discrimination in fact is connected to the requirement that the victim actually belong to a sufficiently discernible political, racial or religious group. This latter requirement is articulated in the jurisprudence that accepts the “discrimination in fact” approach and in the doctrine.604 It has also been expressly included in the ICC Statute, which defines persecution as an act that is perpetrated against a person belonging to an “identifiable group or collectivity.”605

275.  Therefore, the Supreme Court Chamber does not agree with the Trial Chamber’s statement, in reliance on the Naletilić and Martinović Trial Judgement, that, where “the perception of the perpetrator provides the basis of the discrimination in question, the [discriminatory] consequences are real for the victim even if the perpetrator’s classification may be incorrect under objective criteria.”606 The Supreme Court accepts this statement only in so far as it means that it is the perpetrator that determines the criteria for targeting on political grounds. This Chamber rejects, however, the Trial Chamber’s holding to the extent that it allows for persecutory intent alone to suffice for establishing the crime of persecution regardless of whether the victim is actually a member of a discernible targeted group.