Chapter Five
Last Week at the Khmer Rouge Tribunal:
Case 004/02
Last week, the Pre-Trial Chamber held a three day hearing for the case against Ao An, in Case 004/02. Ao An was allegedly the Central Zone Deputy Secretary for the Khmer Rouge, and potentially faces charges of genocide, crimes against humanity, and premeditated homicide. While most of the hearing was a closed session, the judges of the Pre-Trial Chamber released a case report that describes the appeal.
The Khmer Rouge Tribunal adheres to the Cambodian and French system of an investigating judge. The investigating judge considers whether there is enough evidence for a case to go to trial. At the Tribunal, there are two Co-Investigating Judges—the National Co-Investigating Judge and the International Co-Investigating Judge. At the end of their research, the Co-Investigating Judges can indict the Accused or dismiss the case by issuing a Closing Order.
In the case against Ao An, the Co-Investigating Judges issued separate Closing Orders. The International Co-Investigating Judge indicted Ao An, but the National Co-Investigating Judge dismissed all charges against the defendant. This is the first case where there were clashing Closing Orders (Case 004/02, Report of the Case & Appeals, 4).
This hearing concerned three appeals, and the Pre-Trial Judges will decide if the Tribunal has personal jurisdiction over Ao An. The Tribunal has personal jurisdiction over the “senior leaders” of the Khmer Rouge, and “those most responsible” for the Khmer Rouge’s crimes. The International Co-Prosecutor raised six grounds of appeal against the dismissal of Case 004/02. One of the grounds of appeal raised by the International Co-Prosecutor was that the National Co-Investigating Judge—who dismissed the case—erred when determining the level of responsibility Ao An had under the Khmer Rouge (Case 004/02, Report of the Case & Appeals, 11).
However, the National Co-Prosecutor and Ao An appealed against the indictment. (Case 004/02, Report of the Case & Appeals, 9-10). The National Co-Prosecutor argued that because Ao An had no “autonomy,” he could not be considered a “senior leader” or one of “those most responsible.” (Case 004/02, Report of the Case & Appeals, 10-11). Ao An raised 18 grounds of appeal, including arguments that he could not fall under the Tribunal’s personal or subject matter jurisdiction (Case 004/02, Report of the Case & Appeals, 8).
The Pre-Trial Chamber will likely issue the decision by the end of the year. Once the Chamber decides to indict Ao An or to dismiss the case, there will be no further appeals on the Closing Order.
For more, see https://www.eccc.gov.kh/en/case/topic/1691 and https://www.khmertimeskh.com/50615719/khmer-rouge-tribunal-appeal-hearing-starts/.
Case 002/02
Last Friday, the Office of the Co-Prosecutors filed a Notice of Appeal for Case 002/02. The Notice set out one ground of appeal.
In Case 002/02, the Trial Chamber addressed the Khmer Rouge’s policy of forced marriage. During this time, the Khmer Rouge monitored couples in forced marriages to ensure that the couples consummated their unions. The Trial Chamber deliberated on if men in these marriages were “subjected to sexual violence of such gravity” that it would constitute the crime against humanity of “Other Inhumane Acts” (Case 002/02 Trial Judgment, para. 3701). However, the Chamber was unable to conclude if these men were subjected to mental and physical suffering that was sufficiently grievous enough to constitute this crime. In the Co-Prosecutors’ Notice of Appeal, the Prosecutors argued that this conclusion was an error of law or fact.
For more, see https://www.eccc.gov.kh/en/case/topic/1298.