Today, the Co-Investigating Judges issued two separate closing orders in the case against Ao An, due to a disagreement about whether Ao An is subject to the ECCC’s personal jurisdiction as a senior leader or one of the persons most responsible for crimes committed during the period of Democratic Kampuchea.
The National Co-Investigating Judge is of the view that Ao An does not fall under the ECCC’s personal jurisdiction under either category and dismisses the case against Ao An for that reason. In reaching that decision, he considered the degree of participation by AO An and the gravity of the crimes, and other factors such as the substance of the ECCC Law and Agreement as well as the intentions of their drafters.
The International Co-Investigating Judge is of the view that Ao An is subject to the ECCC’s personal jurisdiction as one of the most responsible persons, and that there is sufficient evidence to indict him for the genocide of the Cham and crimes against humanity, as well as domestic offences under Cambodian law.
The Judges had alerted the parties by joint decision of 18 September 2017 that they considered separate closing orders permissible under the law applicable before the ECCC, acknowledging the possible consequences arising from this scenario for any appeal under Internal Rule 77(13).
Both Judges filed their closing order in their own working language with a translation to follow as soon as possible. However, they each provide a summary of their reasons in both languages, to ensure the public is adequately informed of the outcome until the full translations are filed. The summaries are attached to this press release, and both Judges refer to them for more details.
The Closing Orders will be issued in public. The full text of the public versions of the two Closing Orders can be found here:
 See paras. 19 and 20 b) of Rev. 17 of the Completion Plan.
Summary of the Closing Order Case 004/2 (Dismissal)
National Co-Investigating Judge
International Co-Prosecutor through the Introductory Submission (IS) and Supplementary Submission (SS) alleged that AO An participated in a number of facts: Purge in the Central Zone, Wat Au Trakuon Security Centre, Wat Batheay Secuirty Centre, Kor (Met Sop) Security Centre, Anlong Chrey Dam Forces Labour Site, Genocide in Kompong Cham Province, and Forced Marriage in Kampong Siem and Prey Chhor District. The International Co-Investigating Judge subjected AO An to judicial investigation with 10 facts and reduced a number of facts from the scope of the judicial investigation.
Pursuant to jurisprudence of ECCC Chambers, to ensure uniformity of jurisprudence, National Co-Investigating Judge (NCIJ) will consider gravity of crimes and participation of AO An in crimes as well as other factors, such as strict construction of criminal law; context, decision and organizational structure of the Democratic Kampuchea and intention of drafter of the ECCC Law and Agreement to consider whether or not AO An falls within the personal jurisdiction of the ECCC.
Furthermore, since there is general recognition of committed serious crimes and their consequences covering the whole country with great numbers of perpetrators, determination of any individual falling within selective jurisdiction of the ECCC requires the comparison between participations of suspects. Such a method, not prohibited by the ECCC legal framework, was used by the ECCC Chambers and it is as well the discretion of the judge.
Evidence produced through the investigation shows existence of killings, starvation and forced labor resulted from the enforcement of policies of the Democratic Kampuchea (DK). Numbers of victims found allegedly resulted from participation of AO An is far lower than ones indicated in IS and SS of the International Co-Prosecutor. Furthermore, the evidence does not show exact numbers of killing or dying before or during the presence of AO An in the Central Zone. According to in dubio pro reo principle, these doubts should be in favour of the accused.
There is a few evidences showing that AO An was a deputy secretary of the Central Zone, but many evidences prove that he was the secretary of Sector 41 of this Zone. However, both positions, especially deputy secretary of the zone, were not officially announced or imprinted in any official document of the DK. He took positions within one year or less than during the last stage of the DK regime from June 1977 to January 1979. AO An was not the member of the Central Committee which is the top structural hierarchy of the regime and not sectary of autonomous sector; thus, he was not entitled to directly communicate with members of Standing Committee, such as POL Pot, NUON Chea or SON Sen.
Evidence does not show power or responsibility that AO An had being the deputy secretary of the Central Zone. There are many evidences to the contrary. KE Pork was the secretary of the zone, a member of the Central Committee with power and authority, effectively controlled the zone even during his absence from the zone sometimes due to his mission, as being one of senior leaders, assigned by the Party. During the absence, the chief of the zone office will undertake tasks.
Collected testimonies of many witnesses indicate that being the secretary of sector 41 covering five districts, AO An participated or lead the meetings, disseminated policies of the DK, oversaw worksites within his competence. Few evidences contrarily indicate involvement of AO An in ordering arrest and killing in few instances. NCIJ as well finds out the facilitating activities of AO An in suppression of Muslim peoples and forced marriages. Finally, no evidence indicating that AO An had a plan or any initiation, instigation of activities beyond normal roles and power other sector secretaries possess.
In spite of this, AO An’s participation was in the context of purge in limited geographical locations during period of time in the pattern of conducts throughout the country, such as arrest, imprisonment, interrogation and forced labor, according to the strict policies of POL Pot through structural hierarchy and effective monitoring of the regime to seek for enemies of the regime. The policy of suppressive and purging nature was reflected even in the Constitution of the regime, Article 10 says: “Dangerous activities and systematic destruction in opposition to the people’s State must be condemned to the highest degree. Other cases are subject to constructive re-education in the framework of the State’s or people’s organizations.” This was clearly actualized in the decision dated in June 1976 of the Central Committee, highest boy of the party: “If within the base framework, to be decided by the Zone Standing Committee, Surrounding the Center Office, to be decided by the Central Office Committee. Independent Sectors, to be decided by the Standing Committee. The Center Military, to be decided by the General Staff.” The term “purging” means “to remove enemies from our ranks, the army, the population so that our ranks, the army and the population be healthy. In this context, even any cadre initiated any work or plan, it does not rise up him to “a most responsible person”.
In this context, no one even senior leader dares to oppose the collective policies of the party. Those opposing were regarded as enemies subjecting to re-education or arrest and killing. NCIJ found that at least 60 high ranked DK cadres, namely KOY Thoun (secretary of North Zone), ROS Nhem (secretary of Northwest Zone) and VORN Vet (member of Standing Committee), were arrested and killed at the Security Centre S-21due to allegation of enemies or linked thereto. In Closing Order case 004/1 (reason), Co-Investigating Judges asserted that in this context although any cadre initiated some task, it does not raise him up to the “most responsible person”.
Overall evidence shows that AO An has normal power not beyond normalcy of granted power; he did not have de facto authorities that he could initiate activities and instigate commission of crimes. This is because he was not the secretary of autonomous sector. Participation of AO An was not fundamental in crime commission. Furthermore, his participation was not proximate to the commission of crimes. NCIJ found that it is indifferent to participation and power of Duch whose actions were proximate, instigated crimes and had direct communication with NUON Chea and SON Sen.
The international co-prosecutor asserted that the accused falls within in the ECCC personal jurisdiction. However, basing on facts, legal construction of ECCC Law and Agreement in the Closing Order; consideration of participation, power an position of accused, NCIJ concludes that this participation was not direct and enough to confirm that AO AN is most responsible person falling within the personal jurisdiction. AO An is not senior leader. Therefore, NCIJ decided to dismiss the case.
This summary was extracted from the Closing Order consisting of 463 pages, including 1452 footnotes, with two annexes thereto (the list of abbreviation and the list of Documents Used in the Order). Public might access to the whole Order via the webpage of the Extraordinary Chambers in the Court of Cambodia (ECCC), https://www.eccc.gov.kh
Summary of Findings in
the International Co-Investigating Judge’s Closing Order (Indictment) in Case 004/2
16 August 2018
The International Co-Investigating Judge is satisfied that the evidence collected during the investigation supports the following findings:
In late 1976 or early 1977, senior leaders of Democratic Kampuchea (DK) Pol Pot and Ta Mok sent Ao An from the Southwest Zone of DK to the Central Zone, where he then held the following positions at various times throughout the remainder of the DK period: Deputy Secretary of the Central Zone, Member of the Central Zone Committee, and Secretary of Sector 41 of the Central Zone.
During this time, Ao An, together with Central Zone Secretary Ke Pauk and other cadres of the Communist Party of Kampuchea (CPK), carried out a joint criminal enterprise (JCE) with the common purpose of implementing four CPK policies in the Central Zone:
i. The establishment and operation of cooperatives and worksites;
ii. The re-education of ‘bad elements’ and killing of ‘enemies’ both inside and outside the CPK ranks;
iii. The targeting of specific groups, including Central Zone CPK cadres, former officials of the Khmer Republic, ‘17 April people’ (a term broadly denoting urban elites and educated persons – from the date when Phnom Penh fell to the Khmer Rouge), people from the East Zone, the Cham, and their families; and
iv. The regulation of marriage through, inter alia, the forced marriage of the inhabitants of the Central Zone.
Ao An implemented these CPK policies by committing genocide against the Cham and crimes against humanity punishable under Articles 4, 5, 29, and 39 of the ECCC Law, as well as homicide under domestic law under the Penal Code of 1956. In addition to commission via a JCE, Ao An is alternatively liable for planning, ordering or instigating these crimes, or through superior responsibility.
Ao An is responsible for the crimes against humanity of murder, enslavement, and other inhumane acts committed at the Anlong Chrey Dam worksite. Ao An implemented the CPK policy on cooperatives and worksites by overseeing and monitoring construction and production at worksites, including Anlong Chrey Dam, where thousands of people were compelled to work under extremely difficult conditions and the threat of death should they make a mistake or perform their work in a manner deemed unsatisfactory.
Ao An is responsible for the crimes against humanity of extermination, murder, torture, imprisonment, other inhumane acts, and persecution based on political and religious grounds committed, in various constellations, at a network of security centres and execution sites, including
Kok Pring Execution Site,
Met Sop Security Centre,
Tuol Beng and Wat Angkuonh Dei Security Centres,
Wat Au Trakuon Security Centre,
Wat Batheay Security Centre,
Wat Ta Meak Security Centre, and
Wat Phnom Pros Execution Site.
Ao An implemented the CPK policy regarding the destruction of enemies by leading an operation to ‘purge’ people in Sector 41 who were suspected of being disloyal to the CPK. Ao An identified ‘enemies’ to be purged and convened meetings with his subordinates about the purge operation, ordering them to be constantly vigilant in carrying out arrests and killings. As a result, many people were arrested, detained in miserable conditions, tortured, and killed at the security centres and killing sites. A conservative minimum estimate of 12,944 people (including a minimum of 1743 Cham), and very likely many more, were killed at these sites.
Many of the victims were targeted because they belonged to specific groups perceived to hold views against or incompatible with CPK ideals and policies and were therefore considered to be ‘traitors,’ ‘internal enemies,’ and ‘bad elements’. These included Central Zone CPK cadres, former officials of the Khmer Republic, ‘17 April people’, people from the East Zone, the Cham, and their families.
Ao An is responsible for the crime against humanity of other inhumane acts by forcing marriages upon people in Kampong Siem and Prey Chhor Districts in Sector 41 and by coercing them to consummate their marriages through sexual intercourse. Ao An disseminated and enforced a policy whereby the inhabitants of Sector 41 were forced to marry a spouse chosen by the CPK, without regard for the consent of the couple. Mass wedding ceremonies were held often, devoid of Cambodian tradition, during which couples were forced to marry someone they had in many cases never met. With the policy aim of increasing the population, CPK cadres instructed newly-wed couples to have intercourse and monitored and threatened them to ensure they complied. Many couples had intercourse because they feared they would be killed if they refused. Forced marriage and consummation under such coercive circumstances caused serious mental, and in some cases, physical harm, and constituted a serious attack on human dignity. The consummation of the marriage without consent must be considered an act of rape. Ao An personally presided over at least five wedding ceremonies involving 34 couples at various locations in Kampong Siem and Prey Chhor Districts.
Ao An is responsible for the crime of premeditated homicide under Articles 3(new), 29, and 39 of the ECCC Law and Articles 501 and 506 of the 1956 Penal Code for the killings at Anlong Chrey Dam, Kok Pring Execution Site, Met Sop Security Centre, Tuol Beng and Wat Angkuonh Dei Security Centres, Wat Au Trakuon Security Centre, Wat Batheay Security Centre, Wat Ta Meak Security Centre, and Wat Phnom Pros Execution Site.
Most of all, Ao An is responsible for the genocide of the Cham of Kampong Cham Province. Ao An sought to destroy this part of the Cham population because of their religious and ethnic identity. He ordered the district secretaries in Sector 41 to compile lists of the Cham population and ordered all the Cham to be arrested and killed. He ordered mass arrests of Cham on multiple occasions and monitored the progress of the killing operation through reports provided to him. As a result, almost the entire Cham population in villages throughout Sector 41 were methodically rounded up and killed. Many of the surviving victims suffered serious bodily or mental harm as a result of brutal treatment during the killing operation. CPK cadres also conducted operations to kill the Cham beyond Sector 41 in the other sectors of the Central Zone (Sectors 42 and 43), and in addition thousands of Cham were transferred from the East Zone to the Central Zone to be killed. The killing was most intense, relentless and comprehensive in Sector 41, where Ao An was Sector Secretary. As a result of the mass killing operations, a conservative minimum estimate of 17,115 Cham were killed in the Central Zone (including 1743 killed at the sites listed above), although the actual number is very likely to be much higher.
There is insufficient evidence to support the following charges:
Kok Pring Execution Site: all charges of persecution of former Lon Nol soldiers.
Wat Ta Meak Security Centre: extermination; persecution on political grounds through extermination and murder.
Tuol Beng and Wat Angkuonh Dei Security Centres: persecution on political grounds through extermination and murder; persecution on religious grounds through imprisonment and other inhumane acts.
Met Sop Security Centre: all charges of persecution of Lon Nol soldiers.
Wat Batheay Security Centre: persecution of East Zone people on political grounds through torture, imprisonment, and other inhumane acts; persecution on religious grounds through torture, imprisonment, and other inhumane acts.
Wat Au Trakuon Security Centre: persecution on religious grounds through torture.
Deliberately inflicting conditions of life calculated to bring about physical destruction, as an underlying act of genocide against the Cham.
These charges have been dismissed.
Ao An is subject to the ECCC’s personal jurisdiction as one of the persons most responsible for crimes committed during the DK period, based on his position in the DK hierarchy and the gravity of his crimes, regardless of whether he was also a senior leader. He held an elevated position in the DK hierarchy which he used to destroy the Cham and kill at least tens of thousands of people in the Central Zone, and to cause severe harm and suffering to countless more, creating a nightmarish environment which one witness described as ‘hell in the human world’. Ao An should thus stand trial for these grave crimes.
The International Co-Investigating Judge made an order on the civil party applications in Case 004/2.
It must be emphasized that Ao An at this time still benefits from the presumption of innocence. An indictment is not a judgment; it merely represents the International Co-Investigating Judge’s view that there are sufficient charges to commit Ao An for trial.
Given that, on the one hand, there are, for the first time, opposing closing orders and that it is therefore unclear under Internal Rule 77(13) whether the indictment will stand, should there be no super-majority upon appeal in the Pre-Trial Chamber, and, on the other hand, that Ao An has known for years that he is under investigation but made no attempts to evade, or tamper with, the ECCC’s jurisdiction, it was not appropriate to consider ordering his detention pending trial.