Case 002/02 Extraordinary Chambers Courts of Cambodia

Parties (including notable third parties)

Nuon Chea, Deputy Secretary of the Communist Party of Kampuchea and Khieu Samphan, Former Head of State (Defendants); Vietnamese Cambodian civil parties: a group of 43 Vietnamese survivors from Kampong Chhnang Province (Civil Parties/Victims) The civil parties were represented by a mixed international-Cambodian pro bono legal team: Sam Sokong (Cambodian lawyer), Lyma Nguyen (Australian barrister), in collaboration with the Minority Rights Organization and Jesuit Refugee Service Cambodia.

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Summary of Facts

This case arose in relation to events that occurred between 17 April 1975 and 6 January 1979, when the Communist Party of Kampuchea (‘CPK’) exercised power over Democratic Kampuchea (Cambodia). Throughout this period, the civilian population was denied basic fundamental freedoms and subjected to widespread acts of extreme cruelty, including killing, torture, forced labour, forced marriage, enforced disappearances, and other inhumane treatment.

The Appellant, Khieu Samphân, was a senior leader of the Khmer Rouge. He served as President of the State Presidium of Democratic Kampuchea from early 1976, conducting diplomatic relations and promoting the CPK party line. The Trial Chamber found that he was a member of the CPK Central Committee and attended Standing Committee meetings where critical decisions were made at the highest level of control.

The Trial Chamber convicted Khieu Samphân of crimes against humanity (including murder, extermination, deportation, enslavement, imprisonment, torture, persecution, enforced disappearances, forcible transfer, forced marriage, and rape in the context of forced marriage), genocide against the Vietnamese group, and grave breaches of the Geneva Conventions. He was sentenced to life imprisonment. The Trial Chamber also found that civil parties suffered harm by acts for which Khieu Samphân was convicted and granted, in part, their plea for moral and collective reparations.

In a related development, a group of 43 ethnic Vietnamese civil parties from Kampong Chhnang Province sought civil party status in Case 002/02. During their application, many indicated on their Victim Information Form that they sought Cambodian nationality as a form of reparation. Their lawyers argued that the crimes to which their clients were subjected caused present-day harm: during forced relocations by the Khmer Rouge in 1975, victims were forced to leave behind or destroy important documentary proof demonstrating their ties to Cambodia. Upon their return to Cambodia in the early 1980s, they could not establish their identities and were instead treated as ‘immigrants’ or ‘foreign residents’ by Cambodian officials, rendering them stateless or at risk of statelessness. This situation resulted in continuous harm from a lack of access to basic social, economic, political, and human rights, with intergenerational consequences affecting their children and grandchildren.

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Legal Arguments

Legal Arguments by the Appellants

The lawyers were aware that it was beyond the jurisdiction of the Extraordinary Chambers in the Courts of Cambodia (‘ECCC’) to grant Cambodian nationality. Hence, the civil parties initially sought a ‘project to facilitate acquisition of Cambodian nationality’ (Case 002 (Transcript of Hearing) (Extraordinary Chambers in the Courts of Cambodia, Trial Chamber, Case No. 002/19-09-2007-ECCC/TC, E1/11.1, 19 October 2011) 48–59). Following rules amendments, the civil parties presented their request first as a legal assistance project, which would facilitate a nationality assessment and application process, leaving any decision on the merits with the Cambodian authorities to determine in accordance with Cambodian laws.

However, the request was contested among Cambodian civil party and defence lawyers, many of whom were not supportive. During consultations with civil parties from the Khmer majority population, a majority did not support the request from this minority group. Concerned that the proposal might not even reach the Trial Chamber, the lawyers for the Vietnamese civil parties amended the project by avoiding talk about nationality. The project changed first to an ‘initiative to reconstitute the civic identity of civil parties and facilitate (re)integration into Cambodian society’. (Case 002 (Civil Party Lead Co-Lawyers’ Interim Report on Reparations in Case 002/02 and Related Request) (Extraordinary Chambers in the Courts of Cambodia, Trial Chamber, Case No 002/19-09-2007-ECCC/TC, E352, 17 June 2015) 9) and finally to ‘legal and civic education for minority civil parties’ (Case 002 (Civil Party Lead Co-Lawyers’ Final Claim for Reparation in Case 002/02) (Extraordinary Chambers in the Courts of Cambodia, Trial Chamber, Case No E457/6/2/1, 002/19-09-2007-ECCC/TC, 30 May 2017) 26 [56] (‘Civil Party Lead Co-Lawyers’ Final Claim for Reparation in Case 002/02’).

The final project was reduced to awareness-raising among civil parties to enable a better understanding of the legal and administrative framework surrounding nationality and civil registration.

Outcome

In their 2018 Case 002/02 judgment, the trial judges found both defendants guilty of genocide of the Vietnamese. The conviction was upheld on appeal in 2022.

The trial judges approved the project of providing legal and education as reparation measure, stating:

‘The Chamber has determined that Civil Parties affected by the treatment of the Vietnamese suffered harm including psychological trauma, discrimination, material deprivation and, importantly in this context, the loss of legal status due to the loss of documentation showing their ties to Cambodia, as a result of the crimes related to the treatment of which they were victims during the DK period. The Chamber finds that by providing legal and civic education to allow Civil Parties to better understand their legal status according to Cambodian law, the specific reparation measures … acknowledge the harm suffered by these Civil Parties and provide benefits to them which address this harm. It also finds that these measures constitute collective and moral reparations within the scope of the ECCC legal framework.’  Case 002/02 (Judgment) (Extraordinary Chambers in the Courts of Cambodia, Trial Chamber, Case No 002/19-09-2007/ECCC/TC, 16 November 2018), paragraph 4459.

International, Regional and Domestic Instruments and Provisions Cited

This case does not cite any legal instruments.

UNHCR Statelessness Guidelines cited

This case does not cite UNHCR Statelessness Guidelines.

Available commentary

Christoph Sperfeldt, 'Nationality as Reparation? The Case 002/02 Trial Judgment at the Extraordinary Chambers in the Courts of Cambodia' (2021) 3(1) Statelessness and Citizenship Review 93

• This case note summarises the judgment and discusses the request for nationality as a moral and collective reparation measure, noting that this request was ‘unprecedented for an international(-ised) criminal justice setting’ (page 119).
• Sperfeldt points out that the trial judges had fewer issues with the proposed project on the facilitation of the acquisition of Cambodian nationality, given that it had no bearing on state responsibility.
• The case note describes how the trial judges found that providing legal and civic education to allow civil parties to better understand their legal status according to Cambodian law would acknowledge the harm suffered and provide benefits addressing that harm.
• Sperfeldt explains that the project was ultimately implemented by Minority Rights Organization with a small funding contribution from the German Civil Peace Service. ‘Since then, the few civil parties still alive have been relocated by authorities from their floating homes on the Tonlé Sap Lake. Their future in Cambodia remains uncertain’ (page 125) .