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UNITED NATIONS Distr. GENERAL A/53/850 S/1999/231 16 March 1999 ORIGINAL: ENGLISH GENERAL ASSEMBLY SECURITY COUNCIL Fifty-third session Fifty-fourth year Agenda item 110 (b) HUMAN RIGHTS QUESTIONS: HUMAN RIGHTS QUESTIONS, INCLUDING ALTERNATIVE APPROACHES FOR IMPROVING THE EFFECTIVE ENJOYMENT OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS Identical letters dated 15 March 1999 from the Secretary-General to the President of the General Assembly and the President of of the Security Council By resolution 52/135 the General Assembly requested me to examine the request of the Cambodian authorities for assistance in responding to past serious violations of Cambodian and international law, and those committed by the Khmer Rouge, in particular, and to that end to examine the possibility of appointing a Group of Experts. I accordingly appointed a three-member Group of Experts to evaluate the existing evidence with a view to determining the nature of the crimes committed by Khmer Rouge leaders in the years 1975-1979; to assess the feasibility of their apprehension; and to explore legal options for bringing them to justice before an international or national jurisdiction. The Group of Experts visited Cambodia and Thailand from 14 to 24 November 1998. It met with the then Second Prime Minister, Hun Sen, with representatives of Government ministries and of non-governmental organizations and private individuals. It also visited the Documentation Centre, the National Archives and the Tuol Sleng prison (the so-called "Museum of Genocide"). The Group of Experts submitted its report to me on 22 February 1999 (see annex). A copy of the report was given on the same day to the Government of Cambodia for its consideration. On the basis of a review of the material and documents made available to it, the Group of Experts concluded that the evidence gathered to date testifies to the commission of serious crimes under international and Cambodian law, and that sufficient physical and witness evidence exists to justify legal proceedings against the Khmer Rouge leaders for those crimes. It considered that the crimes committed by Khmer Rouge leaders during the 1975-1979 period included crimes against humanity, genocide, war crimes, forced labour, torture and crimes against internationally protected persons, as well as crimes under Cambodian law. In the view of the Group, the question of the feasibility of apprehending Khmer Rouge leaders turned on the ability and willingness of the Government, in whose territory suspects are located, to effectuate their arrest or extradition. The Group of Experts concluded that the Government of Cambodia is able to apprehend Khmer Rouge leaders in its territory whose location is known and who are not protected physically from arrest. In their meeting with the Prime Minister, Mr. Hun Sen expressed his Government's willingness and readiness to apprehend any person indicted by the independent prosecutor of an international tribunal, should one be established. Similar expressions of willingness were made by the Government of Thailand. The Group of Experts analysed the following legal options for bringing Khmer Rouge leaders to justice: a tribunal established under Cambodian law; a tribunal established by the Security Council or the General Assembly as an ad hoc international tribunal; a mixed option of a Cambodian tribunal under United Nations administration; an international tribunal established by a multilateral treaty and trials in third States. It recommended that in response to the request of the Government of Cambodia, the United Nations should 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, that the Security Council establish this tribunal under Chapter VI or VII of the Charter of the United Nations, or, should it not do so, that the General Assembly establish it. They further recommended that the United Nations, in cooperation with the Cambodian Government and non-governmental sector, encourage a process of reflection among Cambodians to determine the desirability and, if appropriate, the modalities of a truth-telling mechanism to provide a fuller picture of the atrocities of the period of Democratic Kampuchea. Having considered the report, the Government of Cambodia, in a letter addressed to me dated 3 March 1999, cautioned that any decision to bring Khmer Rouge leaders to justice must take account of Cambodia's need for peace and national reconciliation, and that, if improperly conducted, the trials of Khmer Rouge leaders would create panic among other former Khmer Rouge officers and rank and file and lead to a renewed guerrilla war. At a meeting I held on 12 March with the Minister for Foreign Affairs and International Cooperation of Cambodia, Hor Namhong, he conveyed to me his Government's view that, on the basis of article 6 of the Convention on the Prevention and Punishment of the Crime of Genocide and article 33 of the Cambodian Constitution, the Cambodian courts were fully competent to conduct any such trial. He recalled that the criminals are Cambodians, the victims were Cambodians and the crimes were committed in Cambodia. The Foreign Minister therefore informed me of his Government's decision to put on trial Ta Mok, the former Khmer Rouge military commander of the south-west region and a member of the Standing Committee, before a Cambodian court under Cambodian law, and to accept foreign assistance and expertise to that end. At the same meeting, I reminded the Foreign Minister that the Group of Experts had carefully considered the feasibility of a national tribunal, but concluded that the Cambodian judiciary in its current state was unlikely to meet minimal international standards of justice, even with external assistance. I remain concerned about the credibility of any trial process. This report is submitted to the General Assembly and the Security Council, as the implementation of the recommendations contained therein call for action by either or both organs. But while the mandate of the Group of Experts emanated from the General Assembly, members of the Council will recall that the initial Cambodian request for United Nations assistance in bringing Khmer Rouge leaders to trial was submitted by me to both organs (A/51/930-S/1997/488), and that subsequently I informed the Council of the establishment, mandate and composition of the Group of Experts. The decision on the establishment of an international tribunal, whether under Chapter VI or VII of the Charter of the United Nations, is for the Security Council or the General Assembly to make. I am confident that they will take the report fully into account in their determination of how best to accommodate the principles of justice and national reconciliation in Cambodia. It is my view, however, that the trial of a single Khmer Rouge military leader which would leave the entire political leadership unpunished would not serve the cause of justice and accountability. It is, therefore, my view that Khmer Rouge leaders responsible for the most serious of crimes should be brought to justice and tried before a tribunal which meets the international standards of justice, fairness and due process of law. Impunity is unacceptable in the face of genocide and other crimes against humanity. I am firmly of the view that if the international standards of justice, fairness and the process of law are to be met in holding those who have committed such serious crimes accountable, the tribunal in question must be international in character. This does not necessarily mean that it should be modelled after either of the existing ad hoc tribunals or be linked to them institutionally, administratively or financially. Other options may be explored, taking into account the analysis and conclusions of the Group of Experts. The success of any international tribunal of whatever character, however, presupposes the full cooperation of the Government of Cambodia and its readiness to apprehend Khmer Rouge leaders situated in its territory and surrender them to the international tribunal upon request. I stand ready to assist the General Assembly, the Security Council and the Government and people of Cambodia in bringing about a process of judicial accountability, which alone can provide the basis for peace, reconciliation and development. (Signed) Kofi A. ANNAN ANNEX Report of the Group of Experts for Cambodia established pursuant to General Assembly resolution 52/135 CONTENTS Paragraphs Page I. INTRODUCTION .......................................... 1 - 3 5 II. MANDATE, COMPOSITION AND PROGRAMME OF WORK ............ 4 - 12 5 III. HISTORICAL BACKGROUND ................................. 13 - 45 8 IV. EVALUATION OF THE EVIDENCE ............................ 46 - 58 15 V. CRIMINAL NATURE OF ACTS COMMITTED ..................... 59 - 91 18 VI. THE KHMER ROUGE IN CONTEMPORARY CAMBODIAN POLITICS AND SOCIETY ............................................... 92 - 101 28 VII. FEASIBILITY OF BRINGING KHMER ROUGE LEADERS TO JUSTICE 102 - 121 30 VIII. OPTIONS FOR BRINGING PERSONS TO JUSTICE ............... 122 - 197 35 IX. OTHER FORMS OF INDIVIDUAL ACCOUNTABILITY .............. 198 - 212 52 X. OTHER ASPECTS OF TRIALS ............................... 213 - 218 55 XI. SUMMARY OF PRINCIPAL RECOMMENDATIONS .................. 219 - 220 57 Annex. List of appointments of the Group of Experts ................... 67 I. INTRODUCTION 1. Twenty-four years ago, a new government took power in Cambodia and proceeded, in the course of its brief reign of three years and nine months, to commit some of the most horrific violations of human rights seen in the world since the end of the Second World War. By the end of the terror in January 1979, the regime's actions had led to the deaths of nearly a fifth of Cambodia's population. Yet a generation later, those responsible for organizing, instigating and carrying out those crimes against humanity continue to enjoy complete impunity. The legacy of their crimes, and indeed the legacy of that impunity, continue to haunt Cambodia to this day. 2. Bringing these men to justice is a matter not only of moral obligation but of profound political and social importance to the Cambodian people. For accountability first and foremost is a statement to the millions of Cambodian victims and their relatives and friends that their cries have at last been heard, providing the survivors with a sense of justice and some closure on the past. Justice is also a critical element for repairing the damage done to that society by the massive human rights abuses and for promoting internal peace and national reconciliation. By having those who committed the abuses identified and punished, Cambodians can better understand their own past, finally place this most tragic period and those responsible for it behind them, and work together to build a peaceful and better future. And accountability can play an important preventive role in Cambodia - demonstrating to those contemplating offences that punishment is at least possible, and promoting an awareness among the people about the meaning of justice and the rule of law. 3. Accountability for the past and national reconciliation for the future are thus not innate opposites or even competing goals. Their connection lies behind the Cambodian Government's request to the international community for assistance in bringing about justice - a request that responds directly to the will of the Cambodian people and has been strongly supported by the King of Cambodia, Norodom Sihanouk. And if justice is brought about with sensitivity to a country's own situation, accountability and national reconciliation are, in fact, complementary, even inseparable. It is with this understanding of justice in the Cambodian context that the United Nations has created this Group of Experts, and it is in this spirit that we submit this report. II. MANDATE, COMPOSITION AND PROGRAMME OF WORK 4. On 12 December 1997, the General Assembly adopted resolution 52/135, entitled "Situation of human rights in Cambodia". The resolution addressed the state of human rights in Cambodia and included the following two paragraphs: "15. Endorses the comments of the Special Representative that the most serious human rights violations 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; "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". 5. This request by the Cambodian authorities for assistance appeared in a letter dated 21 June 1997 from the then-First Prime Minister of Cambodia, Prince Norodom Ranariddh, and the then-Second Prime Minister of Cambodia, Hun Sen, which stated in pertinent part: "On behalf of the Cambodian Government and people, we write to ask you 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. "The April 1997 resolution on Cambodia of the United Nations Commission on Human Rights requests: 'the Secretary-General, through his Special Representative, in collaboration with the Centre for Human Rights, to examine any request for assistance in responding to past serious violations of Cambodian and international law as a means of bringing about national reconciliation, strengthening democracy and addressing the issue of individual accountability'. "Cambodia does not have the resources or expertise to conduct this very important procedure. Thus, we believe it is necessary to ask for the assistance of the United Nations. We are aware of similar efforts to respond to the genocide and crimes against humanity in Rwanda and the former Yugoslavia, and ask that similar assistance be given to Cambodia. "We believe that crimes of this magnitude are of concern to all persons in the world, as they greatly diminish respect for the most basic human right, the right to life. We hope that the United Nations and international community can assist the Cambodian people in establishing the truth about this period and bringing those responsible to justice. Only in this way can this tragedy be brought to a full and final conclusion." The Commission on Human Rights resolution referred to in the above letter is resolution 1997/49, adopted on 11 April 1997. 6. In accordance with resolution 52/135, in July 1998, the Secretary-General created the Group of Experts for Cambodia with the following mandate: (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; (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; (c) To explore options for bringing to justice Khmer Rouge leaders before an international or national jurisdiction. The Secretary-General appointed, as members of the Group, Sir Ninian Stephen (Australia), who is the Chairman of the Group, Judge Rajsoomer Lallah (Mauritius) and Professor Steven R. Ratner (United States of America). By letters dated 31 July 1998, the Secretary-General informed the President of the General Assembly, the President of the Security Council and the first and second Prime Ministers of Cambodia of the formation of the Group, its mandate and composition. 7. The Group's work has been conducted in three stages: legal and historical research on the issues related to its mandate; consultations and meetings with a wide variety of officials from Governments, international organizations and non-governmental organizations; and deliberation and preparation of the present report. The bulk of the consultations and meetings took place during two missions of the Group: to United Nations Headquarters from 7 to 11 September 1998; and to Phnom Penh and Bangkok from 14 to 24 November 1998. In addition, individual members of the Group held meetings with persons whose views were considered important to the work of the Group and the Group met at the Office of the United Nations High Commissioner for Human Rights in Geneva from 27 to 29 January to finalize its recommendations. A list of the persons with whom the Group met is attached as an annex to the present report. 8. The Group wishes, at the outset, to note with appreciation the critical assistance it received from Mr. David Ashley, who served as the Group's adviser on Cambodian affairs and the Khmer Rouge, as well as its Khmer language interpreter for many meetings in Cambodia; the United Nations Office of Legal Affairs, in particular Ms. Daphna Shraga, Senior Legal Officer; the Office of the United Nations High Commissioner for Human Rights, in particular, Ms. Rosemary McCreery, Director of the Cambodia Office of the Office of the United Nations High Commissioner for Human Rights; Ms. Hannah Wu, Cambodia desk officer in Geneva; and last, but not least, Mr. Thomas Hammarberg, the Special Representative of the Secretary-General for Human Rights in Cambodia. We are most grateful for their unfailing assistance to all our work. 9. Before concluding this introduction, several interpretive points about the mandate should be noted. First, the mandate directs the Group to consider the human rights violations of the Khmer Rouge only during the period from 1975 to 1979. We interpret this to mean the period of the Khmer Rouge's rule as the Government of Cambodia, or Democratic Kampuchea as it was then called, that is, from 17 April 1975 to 7 January 1979. The human rights violations of the Khmer Rouge before or after that period are beyond the scope of inquiry of the Group, except insofar as it is necessary to discuss them in addressing the main mandate of the Group. 10. Second, the 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. 11. Third, the mention in the mandate of criminal jurisdiction means that the focus of the present report is on the criminal prosecution of leaders of the Khmer Rouge. Nevertheless, the Group believes that the mandate given us by the Secretary-General must be read in the light of resolution 52/135, and, thus, the Group discusses other methods of accountability in this report. Moreover, the language of that resolution also informs our views on the appropriate targets of prosecutorial and non-prosecutorial mechanisms, an issue we delve into in greater detail later in the report. 12. Our report is organized according to the terms of our mandate. After a discussion of the historical background, the report considers the state of the evidence, the nature of the crimes committed, the feasibility of bringing leaders to justice and the options for bringing persons to justice. It concludes with a summary of our principal recommendations. III. HISTORICAL BACKGROUND 13. An understanding of the numerous issues facing the Group of Experts requires some background on the recent history of Cambodia, the activities of the Khmer Rouge during their reign and the absence of any accountability to date for their acts.1 Although many aspects of this period remain a subject of popular confusion and historical research, the broad outlines of the events are known. 14. 17 April 1975 marked a horrific turning point in the history of Cambodia. On that day, Phnom Penh fell to the forces of the Communist Party of Kampuchea, popularly known as the Khmer Rouge. The Khmer Rouge's armed struggle against the government in Phnom Penh had begun in the late 1960s and had accelerated after the coup of 17 March 1970 that overthrew the Head of State, Prince Norodom Sihanouk, and replaced him with a new regime, under the name of the Khmer Republic. Playing on the popularity of Prince Sihanouk (whom the Khmer Rouge would later imprison in his palace once it secured power) and with foreign support, the movement seized large amounts of territory. With the withdrawal, and eventual elimination in 1975, of assistance from the United States of America to the Khmer Republic, the Khmer Rouge was assured of victory. A. The philosophy and structure of the Khmer Rouge 15. The atrocities committed from 1975 to 1979 were generally not the isolated acts of individual officials, but rather resulted from the deliberate policies of the Communist Party of Kampuchea. The Party proclaimed its victory as ending 2,000 years of subjugation of the Khmer peasantry at the hands of foreign and class enemies. But it continued to see these enemies as an all-pervasive threat to the regime and its dream of a fully independent and socially and ethnically homogeneous Cambodia. 16. To counter the perceived threat and build a "clean social system",2 the regime launched a uniquely thorough revolution whereby all pre-existing economic, social and cultural institutions were abolished, all foreign influences were expunged and the entire population was transformed into a collective workforce, required to work at breakneck speed to build up the country's economic strength. Meanwhile, the regime acted ruthlessly against all elements suspected of being hostile to the new order. This included those with links to foreign countries, including Viet Nam, which the radically nationalist Communist Party of Kampuchea, like previous Cambodian regimes, feared was seeking to take over the country. The Party hid behind the name of the Angkar Padevat, or "revolutionary organization", until September 1977, and it was not until April 1976 that a new constitution and new state organs were announced and the country was renamed Democratic Kampuchea. 17. To exercise control over the country, the Communist Party of Kampuchea divided it into zones, of which there were seven by 1978, which were in turn divided into approximately 32 sectors. Below the sectors lay districts, sub-districts and cooperatives. Every member of the population was incorporated into an administrative or functional unit led by a committee appointed by the Communist Party of Kampuchea, with most of the population organized into agricultural cooperatives. The centre in Phnom Penh set policy through numerous directives to regional and local officials. Most notably, these directives set the country's basic economic policies and dictated the various purges of elements deemed anti-revolutionary that characterized Democratic Kampuchea. At the same time, the centre did not directly control the workings of many cooperatives and historians differ regarding the degree of effective central control. When Phnom Penh learned that cadres were not implementing its directives or that those policies were failing to remedy the country's problems (most notably in terms of food production), it responded with purges of many thousands of its own officials. B. The pattern of abuses 18. The years of Democratic Kampuchea were marked by abuses of individual and group human rights on an immense and brutal scale. For purposes of the present report, we group them into four categories. 1. Forced population movements 19. The first priority of the new leadership upon taking power was the forced evacuation of all cities and towns of Cambodia. In the week following its victory, the Government forced 2 to 3 million people out of these areas and into the countryside, sparing neither the aged, sick nor very young. The leadership saw the cities as the breeding grounds of those who threatened their vision of Cambodia - civil and military personnel of the Khmer Republic, foreign (especially Western) sympathizers, the middle class, intellectuals and teachers and other professionals. The emptying of the populations of the cities and towns - termed new people - aimed to dilute the power of those viewed as counterrevolutionaries and would further the Government's plan for a society based primarily on communal agriculture. 20. The evacuation of Phnom Penh was merely the most dramatic example. The soldiers of the Khmer Rouge quickly emptied the capital, which had swelled to some 2 million people owing to the influx of refugees during the war. It is believed that many thousands, especially among the aged and the young, died from lack of food, water and medical assistance during forced marches to the countryside. Witnesses reported numerous instances of hospital patients being dragged from their beds and dying on roads out of the city. By the end of the evacuation, the capital had as few as 20,000 residents. 21. The evacuations of April 1975 were not, however, an isolated occurrence. The Khmer Rouge continued to move people forcibly from village to village, zone to zone, during its years in power. 2. Forced labour and inhumane living conditions 22. The economic system implemented nationwide by the Government of Democratic Kampuchea relied on forced labour. The former town-dwellers joined the rural population in agricultural cooperatives which, by the end of the regime, were intended to embrace entire districts. Cambodians were put onto work teams, often under armed supervision, and forced to grow rice and other crops or construct large-scale infrastructure projects. Work hours were long, often beginning before dawn and continuing on into the night, seven days a week; food rations proved meagre as the country suffered shortages. The labour proved especially traumatic for city-dwellers who had never been exposed to agrarian life. Private property and money virtually disappeared. Attempts to secure additional food or medicine privately were forbidden. The Khmer Rouge organized communal life in a manner designed to obliterate traditional family structures. Meals had to be cooked and eaten communally, not in family groups, and children were separated from families and encouraged to report on any "unreliable" relatives. Marriages required approval of party authorities; clandestine sexual relations could meet with death for both parties. 23. The misery caused by the methods used by the Khmer Rouge in implementing its policy of transforming the Cambodian economy constituted the single largest source of deaths during the Khmer Rouge period. Starvation, disease and physical exhaustion, caused by overwork and inadequate food, medicine and sanitation, killed hundreds of thousands. According to witness reports, the Khmer Rouge overseers also routinely killed many thousands who refused or could no longer work, often murdering their family members as well. 3. Attacks on enemies of the revolution 24. Beyond the many deaths attributable to Democratic Kampuchea's population transfers and forced communization, the regime also targeted certain groups for extermination by virtue of their imputed political beliefs or social or ethnic background. Without recourse to any formal judicial system, virtually every unit of the regime appears to have had the right, even the duty, to identify, detain and execute those believed to be enemies. Among those categories of society regarded with particular suspicion were those listed in paragraphs 25 to 28 below. 25. Officials of the prior regime. Former government leaders, military officers and bureaucrats of the Khmer Republic were immediately targeted for elimination. During the first few months of the regime, thousands were summarily executed, either individually or in large round-ups. Many were killed away from public view, clubbed or shot in isolated fields; some were deliberately murdered in front of their families. By 1977, this purge had extended to the lowest ranks of the Khmer Republic's army as well as to relatives and friends. 26. Ethnic minorities. Together with the general prohibition on religion and any cultural expressions other than the revolutionary model, the Khmer Rouge targeted several ethnic minorities for forced assimilation or worse. The Cham, a Muslim sect present in Cambodia for 500 years, were forcibly dispersed, had their language and customs banned and saw their leaders and others resisting governmental policies killed. Ethnic Chinese, seen as especially associated with the urban capitalist economy, sometimes faced special discrimination. The worst fate of all befell the Vietnamese, many of whom had lived in Cambodia for generations and played an important role in the Cambodian economy. Most were expelled in 1975. By 1977, with the beginning of large-scale fighting with Viet Nam, the regime began killing the few remaining in the country. 27. Teachers, students and other educated elements. The regime saw the educated sectors of the population as part of the corrupt class that had made Cambodia a puppet of outside influences and had exploited the poor peasants, and thus as potential counterrevolutionaries. While many thousands perished in the communes alongside the rest of the population, others were targeted for execution. When identified through trickery or other means, teachers, high school students and professionals were often killed. Cambodians with foreign language proficiencies or ties to foreign countries were considered spies and also killed. Whatever cosmopolitanism had existed in Cambodia's cities disappeared over the next three years. 28. Religious leaders and institutions. In overturning the structures of Khmer society, the Government also aimed its sights at organized religion, including Buddhism, the religion of most Khmers. The regime forced monks to leave the priesthood, killing those who refused. It destroyed numerous Buddhist temples and converted others into storage areas or even prisons, obliterating many sacred objects and texts in the process. As a result, the entire organized priesthood in the country was disbanded. The Government also destroyed hundreds of mosques and many churches. 4. Purges within the Communist Party of Kampuchea 29. The paranoia of the Khmer Rouge regime showed itself most clearly in the treatment of its own cadres. In an ever-expanding purge beginning in late 1976 and continuing until the overthrow of the regime, the leadership looked for enemies within the Party, accusing them of being agents of the CIA, KGB or of Viet Nam. This process involved not only the execution of suspected individuals within the leadership of each unit (including many members of the Government and the Central Committee of the Party), but also the repeated wholesale arrest and killing of all of the Party cadres in a unit considered treacherous, such as a particular sector or military division. 30. One such attempted purge of the eastern zone in May 1978, led to the largest of several local insurrections during the regime. Military elements in the eastern zone, which borders Viet Nam, rebelled against the capital, leading to prolonged fighting from June through September 1978. The battle was characterized by major human rights abuses by government forces, who may have killed at least 100,000 people in the region, many of them local civilians whom it regarded as having "Khmer bodies with Vietnamese minds".3 Party cadres, their families and villagers were exterminated. Hundreds of thousands of others were evacuated to points north and west where they died of starvation and disease or were later murdered. 31. It appears that a network of prisons existed throughout the country and down to at least the district level. The principal detention and interrogation centre was established by the leadership's security service, S-21, at the former school at Tuol Sleng in Phnom Penh. Those detained there were invariably interrogated, brutally tortured and then killed. From 1976 to 1978, approximately 20,000 suspected enemies, mostly party cadre and their families, passed through Tuol Sleng; only six are known to have survived. 5. General observations 32. Several general observations can be made regarding the methods used by the Khmer Rouge. First, cadres utilized direct executions against certain specified targets, e.g., members of the Khmer Republic's army and officials of its administration, ethnic Vietnamese, Buddhist leaders, suspected traitors within the party, those transgressing the rules or opposing the regime's policies and certain people in the intelligentsia. Some were murdered after torture sessions or detention. Second, the regime instigated or tolerated massive abuses that led to the deaths of the majority of those who perished during these years. These stemmed from the forced marches, long working hours and insufficient food and medicine experienced by Cambodians, particularly among the "new people". 33. Third, some abuses appear to have occurred without any clearly identifiable pattern. Local cadres, especially children, given authority over people's lives and deaths, often committed atrocities out of irrational hatred or fear. Fourth, not all Cambodians suffered to the same degree. Former Khmer Republic officials and ethnic minorities suffered most, while certain rural populations suffered less. Despite the appalling number of dead (see below), a substantial majority of Cambodians survived this period, although the long-term impact on the country remains incalculable because the educated and skilled were especially targeted and because of the psychological and physical scars left on the survivors. 34. Fifth, identification of the full range of participants and victims in the terror seems impossible. Apart from the meticulous confessions kept in Tuol Slent, either the Khmer Rouge did not compile detailed records of most of their actions of those records appear lost. The names of all the perpetrators and victims will never be known. 35. Finally, scholars and Governments have offered differing totals for the number of Cambodians killed by the Khmer Rouge. Scholars have separately arrived at figures of 1.5 million and nearly 1.7 million.4 There was a sharp disparity among victim groups. One study posits close to a 100 per cent death rate for rural and urban ethnic Vietnamese, 25 per cent for urban and rural Khmer "new people", and 15 per cent for rural Khmer "base people".5 Overall, the various estimates point to a death rate of approximately 20 per cent of the April 1975 population of 7.3 to 7.9 million people. Historians of Cambodia have rejected the figure of 2 to 3 million that has often been used by the Governments in Cambodia since 1979, as well as in some popular accounts. C. Fall of the regime and activities since 1979 36. Cambodia's relations with Viet Nam eventually led to the overthrow of the regime. The alliance of convenience between the Khmer and Vietnamese communists began to wither shortly after their respective victories in the spring of 1975, replaced by the animosity more typical of Khmer-Vietnamese relations historically. 37. From 1975 to 1977, Democratic Kampuchea and Viet Nam engaged in a low-intensity border war. By 1977, Cambodia had escalated the conflict to include raids in which it massacred hundreds of Vietnamese in border villages. Viet Nam eventually responded by sending troops into Cambodia in December 1977. Viet Nam's occupation of parts of the eastern zone prompted the purges of the zone's leaders by the centre, leading to the May 1978 uprising by eastern zone officials. By the summer and fall of 1978, a group of eastern zone leaders had fled to Viet Nam, where they became the core of an opposition group. Viet Nam built up its forces along the Cambodian border and, on 24 December 1978, launched a full-scale invasion of Cambodia. On 6 January 1979, its army reached Phnom Penh and installed the opposition group in power. Later declaring itself the People's Republic of Kampuchea (after 1989, the State of Cambodia), it ruled Cambodia for over a decade with significant support of the Vietnamese army. 38. With the rapid collapse of Democratic Kampuchea, many remaining Khmer Rouge, including the top leadership, fled, re-establishing themselves along both sides of the Cambodian-Thai border. Their abusive methods against those in their zones of control continued (though the scale declined), and they also enjoyed a degree of credibility in the region and elsewhere as the most powerful military opposition to the Vietnamese army. Significant military support from a number of States in the region maintained the Khmer Rouge as an active fighting force. Democratic Kampuchea retained Cambodia's seat in the United Nations during the 1980s (even as word of its atrocities began to become known internationally) owing to an effective anti-Viet Nam coalition led by China, the Association of South-East Asian Nations (ASEAN) and the United States, and supported by many non-aligned nations that placed a premium on condemning aggression against small States. 39. In 1982, as refugees and human rights groups disseminated more information about life in Democratic Kampuchea, the Khmer Rouge's foreign supporters pressured it to join with two non-communist resistance forces to form a coalition government-in-exile, the Coalition Government of Democratic Kampuchea. Despite the presence in that coalition of two non-communist groups, the United National Front for an Independent, Neutral, Prosperous, and Cooperative Cambodia (FUNCINPEC) and the Khmer People's National Liberation Front, the Khmer Rouge remained the dominant member. 40. The Khmer Rouge battled the Vietnamese throughout the 1980s, but the People's Republic of Kampuchea and Viet Nam managed to maintain control of about 90 per cent of the countryside. Diplomatic efforts to end the conflict bore no fruit during most of the 1980s. In 1987, Indonesia initiated a regional peace process known as the Jakarta informal meetings, and Viet Nam's announcement in early 1989 that it would withdraw its combat forces from Cambodia by September 1989 led to the convening, in July 1989, of the Paris Conference on Cambodia. The Khmer Rouge served as one of four delegations (along with the State of Cambodia, FUNCINPEC and the Khmer People's National Liberation Front) representing Cambodia. After significant diplomatic work on a new peace plan by Australia, the five permanent members of the Security Council and Indonesia during 1990 and 1991, a comprehensive settlement was achieved in the Paris Agreements of 23 October 1991. All four Khmer factions signed on behalf of Cambodia. 41. The peace agreements called for the United Nations Transitional Authority in Cambodia (UNTAC) to organize and conduct elections in an atmosphere of peace and political neutrality. In June 1992, the Khmer Rouge refused to participate in the demobilization process and ceased its cooperation with the United Nations for the remainder of the mission (with the exception of the refugee repatriation process). It boycotted the electoral process and later resorted to massacres of Vietnamese in Cambodia as well as limited attacks on UNTAC. Since 1993, however, the Khmer Rouge has effectively ceased to be an active fighting force, with its soldiers returning to civilian life or joining the national army. On 7 July 1994, the national legislature passed a law outlawing the Khmer Rouge. D. The absence of accountability to date 42. During the Khmer Rouge's reign, the international community exercised virtually no scrutiny of the Khmer Rouge. Lack of information owing to the regime's autarkic nature, the exhaustion of interest of many States in Indochina and the unwillingness of others to question a new revolutionary government's human rights practices all kept Cambodia away from the spotlight. The United Nations Commission on Human Rights eventually considered the issue in 1978, when a group of Western States brought reports from fleeing refugees to the attention of its Subcommission on Prevention of Discrimination and Protection of Minorities. This led to the only official United Nations report on the period, by the Subcommission's Chairman.6 The Commission did not consider this report because of the fall of the Khmer Rouge Government. 43. Following the Khmer Rouge's overthrow, the People's Republic of Kampuchea, in 1979, conducted trials in absentia of Pol Pot and Ieng Sary. These trials, however, were mere show trials with no regard for due process. Outside Cambodia, the same political forces that ensured that Democratic Kampuchea retained its seat at the United Nations also ensured that no action would be taken in that body regarding accountability of the Khmer Rouge leaders. During the negotiation of the Paris Accords, the Khmer Rouge served as a full participant; and those agreements contained no explicit obligation on Cambodia to conduct trials, nor was UNTAC given that mandate. Instead, the States participating in the peace process left the issue for the future Cambodian Government. 44. Since the 1993 elections, the Government has engaged in a campaign to obtain the defection of Khmer Rouge guerrillas through offers of non-prosecution under the 1994 law outlawing the Khmer Rouge and integration into the Royal Cambodian Armed Forces. This policy, combined with the end to foreign military assistance to the Khmer Rouge and a series of splits within the movement, has resulted in the surrender and defection of almost the entire Khmer Rouge army and the end to its insurgency. In September 1996, the Cambodian Government provided an amnesty to Ieng Sary, a former Deputy Prime Minister in the Democratic Kampuchea Government, covering his 1979 conviction and the 1994 law. The amnesty, as well as permitting the former Khmer Rouge units to retain their weapons and to continue to control these areas, also formed the deal by which Khmer Rouge forces loyal to him and the territories they control were formally brought within the Government. The same model of integration, albeit without formal amnesties, was used with other Khmer Rouge areas. 45. The death of Pol Pot in 1998 shifted attention to the fate of the remaining Khmer Rouge leaders. In December 1998, two of Democratic Kampuchea's most senior officials, Nuon Chea and Khieu Samphan, also surrendered. On 12 February 1999, the Government incorporated what it termed the last remnants of the Khmer Rouge into the Royal Cambodian Armed Forces. Only one senior leader, popularly known as Ta Mok, has yet to formally surrender to the Government as of the date of this report. Despite widespread knowledge of the whereabouts of Khmer Rouge officials, none has over the years been apprehended or brought before a court on criminal charges relating to their years in power. IV. EVALUATION OF THE EVIDENCE 46. The first part of the mandate of the Group of Experts is 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. This section is the Group's evaluation of the evidence; the following section addresses the nature of the crimes committed. A. General comments 47. It is now 20 years since the ouster of the Khmer Rouge from power in Cambodia, and the length of time since their atrocities has created an immediate difficulty in bringing its leaders to justice. This manifests itself in a number of ways, including the death of potential witnesses as well as the difficulty for surviving witnesses to recall particular events of the period, in addition to the decay and loss of physical evidence. Nevertheless, trials and convictions for serious human rights violations have been held in a number of countries despite long passages of time; these include trials by the Federal Republic of Germany of Nazis in the 1960s and trials by France of Nazis in the 1980s and 1990s. The passage of time is thus not, in itself, a bar to accountability or justice. Indeed, the importance of keeping the door open to accountability, despite the passage of time, lies behind the elimination of statutes of limitation in many States for certain international crimes, the call for such elimination in the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity of 1968,7 and the exclusion of crimes within the jurisdiction of the International Criminal Court from such statutes of limitation.8 48. The absence of any organized attempts at accountability for Khmer Rouge officials has led to a delay in efforts to preserve evidence that might be useful for legal proceedings. Over the last 20 years, various attempts have been made to gather evidence of Khmer Rouge atrocities to build a historical record of these acts. For nearly 20 years, scholars have been accumulating such evidence by talking with survivors and participants in the terror and reviewing documents, photographs and gravesites. The most impressive and organized effort in this regard is that of the Documentation Center of Cambodia, located in Phnom Penh. Originally set up by Yale University through a grant from the Government of the United States of America, the Center now functions as an independent research institute with funding from several Governments and foundations. It has conducted a documentation project to collect, catalogue, and store documents of Democratic Kampuchea, as well as a mapping project to locate sites of execution centres and mass graves. 49. Nevertheless, it is essential to note that neither the Documentation Center nor other research efforts have been oriented towards investigation in preparation for prosecution of particular individuals. While their efforts provide critical background and details of the events in Democratic Kampuchea, they may well, in themselves, not be sufficient to build a case against particular individuals. 50. The Group viewed its mandate as reviewing the evidence for purposes of determining whether sufficient evidence exists now or could be gathered in the future to justify bringing to trial certain leaders of the Khmer Rouge. Its task was thus neither to review the existing evidence to make judgements regarding the involvement of particular individuals, nor to gather evidence itself regarding the involvement of individuals. 51. In light of the above, we now review the two forms of evidence that would be pertinent in legal proceedings against Khmer Rouge leaders: physical evidence and witnesses. B. Physical evidence 52. The physical evidence most relevant for any legal proceedings can be divided into three categories: human remains, structures and mechanical objects and documents. With respect to human remains, the Documentation Center has located many thousands of execution sites and burial pits. (During its mission to Cambodia, the Group visited one execution site and makeshift memorial at Trapeang Sva village in Kandal Province.) Although many human bones are in a state of decay, the violent method of death can be determined in a large number of cases. Structural/mechanical evidence consists of buildings around the country used as detention, torture and killing centres, as well as the physical instruments associated with the operation of such centres. The best known of these centres is at Tuol Sleng in Phnom Penh, which was converted to a museum in the early 1980s, and which the Group also visited. Smaller such centres can be found in other parts of the country. The physical implements still extant vary in their state of preservation. 53. Documentary evidence consists of internal documents of the regime of Democratic Kampuchea that demonstrate the role of particular individuals in serious human rights abuses. Within Cambodia, such documents can be found at the Documentation Center, the National Archives, the Tuol Sleng Museum and the Ministry of the Interior. In addition, the Group was informed that the People's Army of Viet Nam removed documents of Democratic Kampuchea from Phnom Penh following its occupation of the city. Finally, the Group was informed that other documents may be in the hands of individual Cambodians or foreign researchers. 54. The Group reviewed documents at the Documentation Center, which appears to have the most comprehensive set of such documents, and also received a set of binders from the Center containing excerpts from the most pertinent documents. The Group also visited the National Archives but the relevant documents it read there were not original documents of Democratic Kampuchea, but rather reports and statements about Democratic Kampuchea that were presented at the trial in absentia of Pol Pot and Ieng Sary in 1979. While the materials in these documents might be useful in renewed legal proceedings, they are not original documentary evidence. Copies of the most relevant documents of the Tuol Sleng Museum are available at the Documentation Center. 55. The original documents reviewed by the Group provide critical evidence regarding the pattern of human rights abuses in Democratic Kampuchea. This includes the details of the various administrative bureaucracies in the country (government, military and party), the situation in various regions regarding agricultural production and popular livelihood and efforts undertaken against enemies of the regime. As for the documentary record that clearly points to the role of specific individuals as immediate participants or as superiors, it appears quite extensive for some atrocities, most notably the operation of the interrogation centre at Tuol Sleng. For other atrocities, documentary evidence that directly implicates individuals, whether at the senior governmental level or the regional or local level, is currently not available and may never be found given the uneven nature of record-keeping in Democratic Kampuchea and the apparent loss of many documents since 1979. C. Witness evidence 56. As has been shown in domestic and international trials of human rights abusers since the Second World War, credible witness testimony usually proves essential to successful prosecutions. In the case of Cambodia, much of the country was witness to one atrocity or another, whether the evacuation of the cities, forced labour, or actual executions of those unwilling to cooperate with the regime. As with the physical evidence, however, a distinction must be drawn between testimony as to the existence of certain atrocities and testimony linking specific individuals to them. Based on our interviews with Cambodians and other research, the Group believes that witnesses who can testify to the occurrence of atrocities and the identity of individuals who carried them out can be located with relative ease. The more difficult question is whether witnesses can be located who can testify to the role of Khmer Rouge leaders in procuring the occurrence of atrocities, as such leaders are likely to be the targets of investigations and trials (an issue we discuss in greater detail in section VII.A. below). This would necessitate locating persons who witnessed the activities of Khmer Rouge leaders (as opposed to much lower-level officials who may have actually carried out atrocities) and could testify as to their knowledge and the orders they gave. 57. A further complicating factor with respect to witnesses is the necessity of ensuring that their testimony is truthful and the product of neither a desire to mislead the court nor of fear of repercussions for what they say. The Group believes that any mechanism for accountability will need to include provision for witness protection, and we discuss this issue further in section X.C, below. For present purposes, however, it is our view that the problem of ensuring the credibility and safety of witnesses is not an insurmountable obstacle to the creation of a legal mechanism for the prosecution of the Khmer Rouge. D. Conclusions 58. The Group is able to draw two distinct conclusions. First, the evidence gathered to date by researchers, scholars, the Documentation Center and others makes clear the commission of serious crimes under international and Cambodian law. This conclusion is further elaborated in our analysis of the relevant criminal law in section V below. Second, the Group is of the opinion that sufficient physical and witness evidence currently exists or could be located in Cambodia, Viet Nam, or elsewhere to justify legal proceedings against Khmer Rouge leaders for these crimes. This will require a significant investment of time by skilled investigators, but we do not believe the state of the evidence is any bar to prosecutions. The ultimate utility of particular evidence will depend upon the rules of evidence and procedure adopted by any tribunal, an issue we return to in section X.B. below. V. CRIMINAL NATURE OF ACTS COMMITTED 59. In the light of the record compiled by historians and the physical and documentary evidence gathered to date, it is now necessary to turn to the substantive law involving criminal responsibility for the acts described above. Such a review is necessary in making recommendations as to the jurisdiction of any entity established for holding Khmer Rouge officials accountable for their acts. 60. Before addressing the relevant law, three preliminary points deserve mention. First, with respect to both international law and domestic law, the strictures of nullum crimen sine lege - the general principle of law prohibiting the assigning of guilt for acts not considered as crimes when committed - dictate inquiry into the international and domestic law in force in 1975, at the start of the Khmer Rouge's rule, rather than that in effect today. Second, any review of the law in a report such as this is oriented only towards determining whether the evidence justifies, as a legal matter, the inclusion of certain crimes within the jurisdiction of a court that would try Khmer Rouge leaders. It does not reach conclusions on whether enough evidence is available to indict particular individuals, let alone whether the evidence justifies a finding of guilt. Definitive findings concerning the guilt of individuals require an examination of detailed evidence deemed admissible by a particular forum regarding precise events and the role of individual actors in them. Third, this section does not make recommendations regarding which crimes should be included in the jurisdiction of a tribunal, but only as to which crimes appear to us legally justifiable for inclusion. Our recommendations regarding that question turn on the type of tribunal that is established and we reserve those issues for later in the report. A. Acts incurring individual criminal responsibility under international law 1. Genocide 61. The 1948 Convention on the Prevention and Punishment of the Crime of Genocide declares genocide a crime under international law and obligates States to punish genocide that takes place on their territory. The Convention's definition of genocide has three main elements: (a) The accused must undertake one of a series of acts - killing, causing serious bodily or mental harm; deliberately inflicting conditions of life calculated to bring about physical destruction; imposing measures intended to prevent births; and forcibly transferring children from the group; (b) The accused must do so against a "national, ethnical, racial or religious group"; (c) The accused must do these acts "with intent to destroy, in whole or in part," one of these groups "as such".9 62. Cambodia has been a party to the Convention, without reservation, since the Convention's entry into force in 1951.10 Democratic Kampuchea never, it appears, denounced the Convention when in power. During the Khmer Rouge years, it appears that the Government subjected the people of Cambodia to almost all of the acts enumerated in the Convention. The more difficult task is determining whether the Khmer Rouge carried out these acts with the requisite intent and against groups protected by the Convention. 63. In the view of the Group of Experts, the existing historical research justifies including genocide within the jurisdiction of a tribunal to prosecute Khmer Rouge leaders. In particular, evidence suggests the need for prosecutors to investigate the commission of genocide against the Cham, Vietnamese and other minority groups, and the Buddhist monkhood.11 The Khmer Rouge subjected these groups to an especially harsh and extensive measure of the acts enumerated in the Convention. The requisite intent has support in direct and indirect evidence, including Khmer Rouge statements, eyewitness accounts and the nature and number of victims in each group, both in absolute terms and in proportion to each group's total population.12 These groups qualify as protected groups under the Convention: the Muslim Cham as an ethnic and religious group; the Vietnamese communities as an ethnic and, perhaps, a racial group; and the Buddhist monkhood as a religious group. 64. Specifically, in the case of the Buddhist monkhood, their intent is evidenced by the Khmer Rouge's intensely hostile statements towards religion, and the monkhood in particular; the Khmer Rouge's policies to eradicate the physical and ritualistic aspects of the Buddhist religion; the disrobing of monks and abolition of the monkhood; the number of victims; and the executions of Buddhist leaders and recalcitrant monks. Likewise, in addition to the number of victims, the intent to destroy the Cham and other ethnic minorities appears evidenced by such Khmer Rouge actions as their announced policy of homogenization, the total prohibition of these groups' distinctive cultural traits, their dispersal among the general population and the execution of their leadership.13 65. As for atrocities committed against the general Cambodian population, some commentators have asserted that the Khmer Rouge committed genocide against the Khmer national group, intending to destroy a part of it.14 The Khmer people of Cambodia do constitute a national group within the meaning of the Convention. However, whether the Khmer Rouge committed genocide with respect to part of the Khmer national group turns on complex interpretive issues, especially concerning the Khmer Rouge's intent with respect to its non-minority-group victims. The Group does not take a position on this issue, but believes that any tribunal will have to address this question should Khmer Rouge officials be charged with genocide against the Khmer national group. 2. Crimes against humanity 66. Crimes against humanity have been defined in various ways in important international documents - in the Charter of the International Military Tribunal, Allied Control Council Law No. 10, the statutes of the International Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda, the International Law Commission's 1996 Draft Code of Crimes Against the Peace and Security of Mankind and, most recently, the Rome statute of the International Criminal Court. Nevertheless, it is possible to discern five major elements that have appeared in one or more - though certainly not all - of the definitions: (a) The acts must involve one or more of a list of serious assaults on the individual, including murder, extermination, deportation, enslavement, forced labour, imprisonment, torture, rape, other inhumane acts and various types of persecutions; (b) Those acts must be of a mass or systematic nature against a civilian population; (c) The acts must be committed with a discriminatory motive based on the race, religion, political viewpoint or other attribute of the population; (d) The acts must involve governmental action; (e) The acts must be committed in the course of armed conflict. As noted above, the accountability of the Khmer Rouge must be determined in light of the law as of 1975, regardless of developments in international law since then. 67. As for the acts committed (factor a above), the historical and evidentiary record suggests cases of murder (rising to the level of extermination of political opposition), forced labour, torture and other inhumane acts. Regarding forcible transfers of population, the evidence suggests a cruel and unlawful means of accomplishing the plan, as well as an unjustifiable purpose aimed against the urban dwellers. 68. As for the mass or systematic nature of those acts (factor b above), many of the acts appeared part of a deliberate, widely known governmental policy. At the same time, some have argued that many atrocities, especially those in outlying areas, lacked direction and amounted effectively to random cruelty.15 If, however, governmental nonfeasance in the face of such acts were motivated by animosity towards the victims' political or other status, it would seem equivalent to systematicity. 69. Regarding motivation (factor c above) - or animus towards the victim - under some important legal instruments defining crimes against humanity, motive is irrelevant for certain grave assaults on the person, such as murder or torture, so that many acts of the Khmer Rouge, even against those not seen as political enemies, would be covered.16 Even if motive were to form an element for all crimes against humanity, the political viewpoint of the victims is included among the listed motives and this element appears to be satisfied regarding many acts of the regime. These include atrocities against the hundreds of thousands of people, if not more, regarded as political enemies by the regime. The acts against the Cham, Vietnamese and other minorities would qualify as crimes against humanity without the need to demonstrate, as required in the Genocide Convention, that the regime intended to destroy them. 70. As for State action (factor d above),17 it would seem to follow from evidence of systematicity, since only the Government of Democratic Kampuchea had the control of the country needed to engage in these acts. Actions by regional authorities would also qualify, as would the implementation of policies through party channels, rather than formal state agencies, since the party controlled the State. 71. Finally, the requirement of a nexus to armed conflict (factor e above) began with the Nuremberg Charter and was confirmed by both the International Military Tribunal and some of the Allied Control Council Law No. 10 courts.18 A very significant change in the law since 1945 is the elimination of the nexus in contemporary definitions of crimes against humanity.17 Were that nexus still required as of 1975, the vast majority of the Khmer Rouge's atrocities would not be crimes against humanity; historians have not linked the bulk of the atrocities of the Khmer Rouge to the armed conflicts in which it engaged (with Viet Nam or domestic rebels such as those in the eastern zone), except to point out that the Khmer Rouge leadership's concept of self-reliance included an overall hatred of foreign and Vietnamese elements that they manifested in numerous ways, including killing many people accused of being agents of Viet Nam.19 However, the Group believes that, for the purpose of considering the jurisdiction of any tribunal that would prosecute Khmer Rouge officials, the inclusion of crimes against humanity is legally justified. The bond between crimes against humanity and armed conflict appears to have been severed by 1975. Several key developments since the Second World War point to such a movement. First, the views of States during the drafting of the 1968 Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity7 suggest that the nexus was not necessary.20 Second, the International Law Commission dropped the nexus to armed conflict in its 1954 Draft Code of Offenses Against the Peace and Security of Mankind.21 The trends that have now solidified were well in place by 1975, so that a prosecution of Khmer Rouge leaders for such violations would not violate a fair and reasonable reading of the nullum crimen principle. 3. War crimes 72. This area of law remains pertinent because certain Khmer Rouge atrocities took place in the course of warfare with other States, especially Viet Nam, as well as with certain domestic resistance forces, primarily during their last year and a half in power. At the same time, this aspect of Khmer Rouge activity constituted only a small portion of their human rights abuses. 73. Cambodia, Laos, Thailand and Viet Nam were parties to all four Geneva Conventions of 1949 during the period at issue, although none became a party to the 1977 Additional Protocols before 1980.22 The grave breaches of the provisions of the Geneva Conventions thus apply, although criminality extended beyond these grave breaches under the customary law of the time. The historical record suggests that armed conflict between Viet Nam and Cambodia began by September 1977, and most likely earlier. The border skirmishes in May 1975 and the continuation of incidents make a strong case for the applicability of the Conventions in relations between Cambodia and Viet Nam during nearly the entirety of Democratic Kampuchea's rule.23 The grave breaches provisions of the Geneva Conventions also only apply to acts taken against "protected persons or property". In the First and Second Geneva Conventions, these are wounded and sick members of the armed forces, broadly defined; and in the Third Convention, prisoners of war.24 The exact nature of Khmer Rouge acts against members of the armed forces is not, however, well documented, although it is known that some captured Vietnamese soldiers were interrogated and killed at Tuol Sleng. The Fourth Geneva Convention protects civilians who find themselves in the hands of a party to the conflict or of an occupying power of which they are not nationals.25 This would include Vietnamese in Viet Nam as well as in Cambodia during the armed conflict. As most ethnic Vietnamese in Cambodia were residents rather than Cambodian citizens, the Conventions would protect them.26 74. The acts against Vietnamese in Viet Nam and Cambodia seem to meet the standard of grave breaches under article 147 of the Fourth Geneva Convention and are thus war crimes. In particular, the Cambodian army appears to have committed wilful killing, torture or inhuman treatment, wilful causing of great suffering, unlawful deportation or confinement and extensive destruction of property. Article 147 would also apply to massacres of Thai villagers by Khmer Rouge troops during repeated border clashes with Thailand. Beyond the Geneva Conventions, the record also suggests commission of other crimes that violate the laws or customs of war, such as wanton destruction of towns and plunder of public or private property. War crimes could thus, as a legal matter, be included in the jurisdiction of a tribunal to try Khmer Rouge leaders. 75. As for international humanitarian law governing internal conflict, the only relevant treaty provision in effect during the Khmer Rouge years was common article 3 of the Geneva Conventions of 1949. Violations thereof are not grave breaches of the Conventions, and do not appear to have been viewed as war crimes under customary law as of 1975.27 This was two years before the International Committee of the Red Cross completed its first detailed elaboration of the laws of war in internal conflicts (i.e., Additional Protocol II of 1977); the fairly recent development of the law on this issue and the lack of any provisions in Protocol II for criminality suggest that criminality was not accepted at that time. As for criminality of other violations of the laws and customs of war in internal conflicts, even if, as the International Tribunal for the Former Yugoslavia held in the Tadiç case, customary law recognized such criminality by the time of the Yugoslavia war.28 This does not suggest, for the reasons noted above, that criminality was recognized 15 years earlier. It is thus more difficult to characterize the acts during the internal conflict as war crimes under the law at that time. 4. Other acts incurring individual responsibility 76. Destruction of cultural property incurs individual criminal responsibility under the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, to which Cambodia has been a party since 1962.29 The Convention's nexus to armed conflict means, however, that despite the record of such destruction as part of their systematic attack upon religion,30 only desecrations in connection with Cambodia's conflict with Viet Nam (or perhaps also of an internal conflict) would trigger criminal responsibility.31 Additional evidence would need to be gathered on this question. 77. Forced labour incurs individual criminal responsibility under the 1930 Convention on Forced Labour, to which Cambodia was a party during the Khmer Rouge period.32 The 1930 Convention criminalizes forced labour not conforming to certain limitations on age, number of days of work, working hours, non-transfer to areas dangerous to health and access to medical care. The regime disregarded the special requirements for forced labour in connection with public works, such as the ban on removal from the place of residence and due regard for religion and social life.33 These acts also do not appear to fall within the exceptions to the definition for labour that is part of the "normal civic obligations" of citizens except under the most twisted meaning of that term.34 Nor do they fall under the exception for work "exacted in cases of emergency":35 even assuming a worst case scenario of massive food shortages, this would not justify the forced labour of the bulk of the population in the countryside, particularly in light of the regime's refusal to accept much foreign aid.36 Thus, this crime could also be included in a court's jurisdiction. 78. Torture incurs individual criminal responsibility today under the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, but that convention was not concluded until 1984.37 As for the criminality of torture under customary international laws of the time of the Khmer Rouge's atrocities, the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights prohibit torture, and the latter requires States to give effect to the right of persons not to be subjected to it.38 The 1975 Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment declares torture "an offence to human dignity" that States must make a crime under their law. It defines torture as "any act by which severe pain or suffering, whether physical or mental, 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".39 Its adoption by consensus by the General Assembly offers evidence of an emerging norm of international criminality as of 1975. The historical record clearly points to Democratic Kampuchea's commission of torture routinely against tens of thousands of supposed enemies of the regime. Although a court might have to examine closely whether the criminality of torture as of 1975 met the standards of nullum crimen sine lege, the inclusion of torture in the statute of any court seems justified. 79. Lastly, the Khmer Rouge leaders and cadre appear to have committed at least one other crime on a far smaller scale - crimes against internationally protected persons.40 In April 1975, the regime detained personnel in the French embassy and then removed and murdered Cambodian husbands of foreign diplomatic personnel.41 5. Extent of individual responsibility 80. International law has long recognized that persons are responsible for acts even if they did not directly commit them. This principle has appeared in various instruments that declare individuals responsible if they plan, instigate, order, aid or abet or conspire to commit the crimes.42 One interpretive problem with these instruments is the lack of uniformity among legal systems for defining these terms. In the case of the Khmer Rouge, those contemplating prosecutions will need to make key decisions regarding the scope of investigations, as the atrocities were committed by very large numbers of people with varying levels of governmental authority. 81. Military commanders and civilian leaders are criminally responsible in the obvious case where they order atrocities and they are also generally responsible if they knew or should have known that atrocities were being or about to be committed by their subordinates and they failed to prevent, stop or punish them.43 This would suggest the need to investigate the roles of those Khmer Rouge officials in responsible governmental positions with actual or constructive knowledge of the atrocities. 82. The converse of the extension of guilt beyond those who actually commit atrocities is the possibility that those who do commit them may under some circumstances be exculpated based on a legitimate defence stemming from the lack of a "moral choice" in committing the act.44 Although following orders per se is an unacceptable defence,45 international criminal law has recognized other possible defences. Generally speaking, these include (a) duress or coercion (based on imminent threat or serious bodily harm), (b) mental defect, (c) self-defence, and (d) failure to understand that a governmental directive is illegal unless the order was manifestly unlawful.46 83. In the case of Cambodia, some Khmer Rouge offenders, especially those at lower-levels facing threats from other cadre, might benefit from a defence of coercion. In addition, many low-ranking Khmer Rouge actors, especially minors, presumably could not have known of the illegality of some of their orders under prior Cambodian law or international law (especially as the Democratic Kampuchea regime emphasized the new beginning for the country). This would, however, only apply to lesser offences, and not those crimes that are so patently atrocious that such ignorance is never an excuse. In situations where lack of knowledge of the law is not a defence, following orders might, however, be used to mitigate punishment.46 As affirmed at Nuremberg, leaders would be held to have known of the criminality of their acts vis-à-vis earlier Cambodian law or international law. These legal factors are relevant to our recommendations below regarding the appropriate targets of inquiry for any court. B. Crimes under Cambodian law 84. Crimes under domestic law will generally lack the special elements of many international crimes and thus generally be easier to prove. However, in the case of Cambodia, two obstacles make the task complex. First, the sources on Cambodian law are extremely scarce. The primary source of criminal law prior to the Khmer Rouge period is the 1956 Code Pénal et Lois Pénales, published by the Ministry of Justice of the Kingdom of Cambodia, though it appears that no sources reliably and comprehensively update this law through 1975.47 As for subsequent law that might govern the Khmer Rouge years, Democratic Kampuchea appears to have published none. No secondary sources on Cambodian criminal law appear extant. Second, because Cambodia has seen at least six legal regimes since independence, the extent to which the law of the prior regimes has remained in force is simply undetermined in many cases.48 85. At a minimum, then, the Group assumes, based on the principle of nullum crimen sine lege, that pre-1975 Cambodian criminal law represents the primary domestic law concerning the Khmer Rouge for acts committed from 1975 to 1979.49 Even though Cambodian courts have not applied the 1956 law for a generation, it would remain the primary source of law for domestic prosecutions. Implicit in this assumption is that the major crimes in the 1956 criminal code remained crimes during the subsequent years. This seems the case during the later years of the Kingdom of Cambodia and the Khmer Republic. As for the effect of the Khmer Rouge period, no evidence suggests that Democratic Kampuchea formally repealed or denounced the criminal law in effect at the time it took power. Although Democratic Kampuchea clearly intended to create a new beginning ("Year Zero") in Cambodia, it cannot be assumed that the regime eliminated the criminality of egregious acts regarded as crimes by all States. Moreover, even an explicit denunciation would not per se insulate the Khmer Rouge's acts from criminality under earlier Cambodian law, especially if the regime sought to justify violations of the most basic protections of human dignity.50 1. Principal crimes 86. The 1956 Penal Code covers the primary crimes recognized by most States. According to French practice, the code classifies offences by severity into crimes (felonies); délits (misdemeanours); and contraventions (police infractions). Felonies and misdemeanours are further qualified as first, second or third degree in increasing order of severity according to their degree of punishment.51 Felonies were punishable by peines criminelles: those of the third degree were punishable by death; second-degree felonies were punishable by life at forced labour; and first-degree felonies were punishable by forced labour for a limited period. Misdemeanours were punishable by peines correctionnelles, namely imprisonment, fines or both, each increasing based on the degree of the misdemeanour. Police infractions were punishable by peines de simple police, namely police detention, police fines or both.52 The most relevant crimes under Cambodian law may be summarized as follows: - Homicide (articles 501-508); - Torture (article 500); - Rape (articles 443-46); - Other physical assaults (articles 494-99); - Arbitrary arrest or detention (articles 482-86); - Attacks on religion (articles 209-18); - Other abuses of governmental authority (articles 240-44). In addition to the above offences, the Code of Military Justice, published along with the Penal Code, provides for additional crimes when committed by military personnel. The crimes and punishments are generally defined along the same lines as those in the Penal Code.53 87. The 1956 Code does not mention international offences such as genocide, crimes against humanity or war crimes per se. Whether Cambodian law permits direct prosecution of individuals for international crimes absent codification of those crimes in the penal code remains unresolved.54 88. The atrocities committed by the Khmer Rouge appear to meet the general definitions of the various crimes in the Cambodian Penal Code of 1956 such as to justify, as a legal matter, their inclusion in the jurisdiction of a court trying the Khmer Rouge. These include murder, torture, rape, unlawful detention, other physical assaults, attacks on religion and other abuses of governmental authority. Because these are crimes under Cambodian law, prosecutors would not need to prove the additional elements for international offences, such as an intent to destroy groups (genocide), systematicity or scale (crimes against humanity) or link to armed conflict (war crimes). 2. Extent of individual criminal responsibility 89. The Penal Code provides for responsibility for various related crimes, such as aiding and abetting and attempts.55 It also provides a listing of defences from guilt including insanity, youth, force majeure, superior orders and self-defence.56 As a result, youthful offenders may well be exempt from any culpability, especially given the total control and atmosphere of terror and siege that gripped the country during the Khmer Rouge years. Moreover, the exact status of the force majeure defence will require elaboration, as will the scope of the superior orders defence. 90. Lastly, the Penal Code provides for statutes of limitations - ten years for felonies, five years for misdemeanours and one year for police infractions. These run from the date of commission and are interrupted by any judicially ordered investigation.57 One interpretation would thus bar any prosecutions for atrocities committed from 1975 to 1979 after January 1989, ten years from the Khmer Rouge's loss of governmental power. Crimes committed before 1979 would have had to have been investigated or prosecuted before 1989. However, based on precedents in European States that prosecuted Nazi offenders after the apparent expiration of the prior statue of limitations - in particular Germany and France in the 1960s and 1980s - other options remain available to Cambodia. First, the National Assembly could repeal the statutes of limitations, and do so notwithstanding the fact that the limitation period had already expired. Second, the National Assembly could suspend the application of the statute from 1975 to the present on the ground that the judiciary has not been fully functioning.58 C. Conclusions 91. Based on our review of the law and available evidence, the Group believes that it is legally justifiable to include in the jurisdiction of a tribunal that would try Khmer Rouge leaders for acts during the period from 1975 to 1979 the following crimes: crimes against humanity, genocide, war crimes, forced labour, torture and crimes against internationally protected persons, as well as the crimes under Cambodian law noted above. Such a tribunal would also need to take account of the principles regarding individual criminal responsibility discussed above, in particular command responsibility and the availability of certain defences. The Group's further views as to whether all of these crimes should in fact be placed within the jurisdiction of the tribunal that we recommend are elaborated in section VIII.B.2 below. VI. THE KHMER ROUGE IN CONTEMPORARY CAMBODIAN POLITICS AND SOCIETY 92. The sections of our report until this point have been primarily historical, legal and technical in nature. At this point, however, our study examines the feasibility of bringing Khmer Rouge leaders to justice and makes recommendations about the optimal ways to accomplish this. In our analysis and recommendations, the members of the Group cannot act as legal experts in a vacuum. Rather, we must take account of special political factors unique to Cambodia, and, in particular, the views of the Cambodian people and the role of the Khmer Rouge in Cambodian domestic politics. These factors closely inform the sections that follow and are worthy of elaboration at this point. A. Views of the Government and people of Cambodia 93. Any report such as this must proceed from the starting point of the views of the Cambodian people and their Government. It is worth reiterating that the Group of Experts was created as a response to the request of the Cambodian Government. In our meetings with Cambodian officials, all reaffirmed their support for criminal trials of Khmer Rouge leaders. This was stated to us unequivocally at the highest levels by Hun Sen, now the Prime Minister, and Norodom Ranariddh, now the Chairman of the National Assembly. Although the Group was, unfortunately, unable to meet with King Sihanouk, who had left Cambodia for medical treatment, we note that the King has expressed his strong support for putting Khmer Rouge leaders on trial and a judicial accounting of the period from 1975 to 1979. In late 1998, for instance, he stated, "An international tribunal would have the perfect right to take up the case of genocide in Cambodia because it concerns crimes against humanity and that concerns the conscience of the world community".59 And, although the Group was also unable to meet with the leader of the parliamentary opposition, Sam Rainsy, who was outside Cambodia at the time of our visit, he too has publicly expressed support for a trial of Khmer Rouge leaders on many occasions. 94. As for Cambodian public opinion, in the 20 years since the ouster of the Khmer Rouge, no systematic polling has been taken on the question of Khmer Rouge accountability.60 Instead, the Group has relied upon the views expressed to us - some purely personal, others claiming to be based on an assessment of Cambodian public opinion - by persons with whom we met in Cambodia and elsewhere, as well as other anecdotal evidence. From our consultations with Cambodians in and out of Government, we heard an unambiguous demand for trials. All spoke of the importance of justice for peace, stability and national reconciliation. This responded to some concerns the Group initially had as to whether Cambodians might view, in the particular circumstances of their country, criminal accountability as inconsistent with the attainment of social tranquillity and a stable democracy. As one of our most senior Cambodian governmental interlocutors told us, "Justice is one of the components of democracy". Others spoke forcefully about the consistency between justice for massive atrocities and the tenets of Buddhism so deeply engrained in Cambodian society. A statement of 13 November 1998 by Cambodia's leading non-governmental organizations called for trials "both for the reconciliation and healing of the Cambodian people, and as a warning to those who violate human rights that they will not escape the punishment they deserve". B. Relationships between the current political parties and the Khmer Rouge 95. Although the Khmer Rouge are now spent as a fighting force and their supreme leader is dead, the movement's history, politics, and personnel are still in many senses central to Cambodian domestic politics. In the course of its work, the Group became acutely aware that any option to bring Khmer Rouge leaders to justice must be undertaken with a full understanding of the current political situation in Cambodia. Its unique agglomeration of political forces renders the Cambodian context impervious to simple solutions. 96. First, both of the principal political parties have over the years had strong connections with the Khmer Rouge and include former Khmer Rouge among their members, including some who might be targets of any investigation into atrocities in the 1970s. The current Prime Minister and many of his colleagues in the Cambodian People's Party were once members of the Khmer Rouge before defecting to Viet Nam, although we have no reason to believe that the Prime Minister would be the subject of the legal proceedings that are within our mandate and that we recommend. Similarly, FUNCINPEC and other parties were closely allied with the Khmer Rouge in the struggle against Viet Nam and the People's Republic of Kampuchea/State of Cambodia. This factor forms part of the context in which options for prosecution must be considered. 97. Second, both of the principal political parties have sought the support of former members of the Khmer Rouge and of the people in the areas they control. (Despite all its atrocities, the Khmer Rouge are still respected by many Cambodians for their staunch nationalism and, in particular, their vehement opposition to foreign - particularly Vietnamese - influences.) The Government has stated that its priority is to end the military threat from the movement. As discussed above, part of the Government's strategy in this regard has been to grant de facto amnesties to all former Khmer Rouge for their post-1979 activities under ordinary criminal law or the 1994 law outlawing the Khmer Rouge (except in one case involving the killing of foreign nationals), as well as to abstain from prosecuting Khmer Rouge leaders for crimes during the period of Democratic Kampuchea. Insofar as fair and impartial justice requires independent decisions on whom to indict and to convict free of political pressure, this strategy may prove an obstacle. 98. Third, the Cambodian People's Party, which has basically governed Cambodia since 1979, has sought popular support through its link to the ouster of the Khmer Rouge and the ending of the movement's threat to the country. At the same time, however, the Government has, for a generation, asserted its own official view as to who was responsible for the atrocities of Democratic Kampuchea, summarized in the phrase "Pol Pot-Ieng Sary genocidal clique", a term used at the in absentia trials of 1979. To the extent that fair trials may reveal a different historical picture from that asserted by the Cambodian People's Party, with the involvement of additional people, the Government may have concerns about a tribunal over which it does not exercise control. C. Perceived threats to Cambodia from accountability 99. We also wish to respond to the view that Cambodia needs to move forward and no longer look at its past. This was a distinctly minority view during our visit to Cambodia (and non-existent among the Cambodians with whom we spoke). One answer would simply be that crimes such as those of the Khmer Rouge deserve punishment as a matter of morality and fundamental considerations of justice. Those arguing against accountability may accept that moral principle, but would argue, however, that it is simply unrealistic or counterproductive in the Cambodian context: that Cambodians do not want accountability, or that accountability will tear apart Cambodian society. 100. Concerning public opinion, the Group did hear a strong desire among Cambodians in and out of Government for peace. But none suggested that peace and trials were irreconcilable, or that Cambodians saw peace as a substitute for justice. Moreover, in our view, the fabric of Cambodian society can never be sown together and peace and stability solidified until there is a fair accounting of the past immune (or as immune as possible) from the politics of the present. We believe that Cambodian society will only be able to understand and move beyond its past when it sees those who undertook massive atrocities brought before impartial justice, a justice that is not trying to impose its own view of history on the Cambodian people. Trials also serve to establish for the Cambodian community what is unacceptable conduct and what should be its inevitable consequences. We are not so naive as to believe that trials will miraculously change the human rights picture in Cambodia overnight, but they are an important step in that process. 101. As for arguments regarding the counterproductiveness of such trials, and in particular that such trials would be destabilizing for Cambodia, the analysis that follows takes this position carefully into consideration. Our recommendations are constructed so as to take into account the need for both individual accountability and national reconciliation. Nevertheless, we do not believe that trials would, per se, be destabilizing and not worth the effort. Rather, we believe, based on our consultations in Cambodia, that, after 20 years of waiting, Cambodians are ready for trials and would embrace them. VII. FEASIBILITY OF BRINGING KHMER ROUGE LEADERS TO JUSTICE A. Targets of investigation 102. The critical preliminary issue in assessing the feasibility of bringing leaders to justice and making recommendations regarding options for doing so is the number of persons who should be brought before a court of appropriate jurisdiction. As noted in the historical discussion above, the atrocities that took place in Democratic Kampuchea were committed by thousands of individuals, with varying levels of responsibility across the country. Most are still living in Cambodia, often within sight of their victims, while some have been killed or have fled the country. The Group of Experts devoted considerable attention to how many should be brought for trial; it was discussed extensively in our consultations with governmental and non-governmental representatives. 103. One obviously important determinant is the opinion of the Cambodian people. Of the persons with whom the Group met, the great majority suggested that only "leaders" of the Khmer Rouge form the targets of investigation, and not low-level cadre, even though those cadre were the persons who actually committed various atrocities. It was suggested that trials of large numbers of defendants would be impossible as a practical matter and potentially damaging to national reconciliation. Only a small minority suggested that all persons who committed atrocities should be tried, regardless of the costs or consequences. 104. Among the many Cambodians who expressed a desire that only "leaders" of the Khmer Rouge face criminal proceedings, there was a wide disparity in the meaning of this term. Some governmental officials suggested that trials be limited to the handful of former senior Khmer Rouge officials who, at the time of our visit, had refused to surrender to the Government. Others suggested a more extensive group of senior leaders most responsible for the atrocities of the period. The Group was also presented with the view, principally of non-Cambodians, that trials of those Khmer Rouge leaders from the 1970s who have agreed to halt their struggle against the Government in exchange for overt or private assurances of non-prosecution would be destabilizing for Cambodia and even risk returning the country to the state of civil war that dominated the 1980s. 105. The Group notes that its mandate calls for recommendations regarding bringing "Khmer Rouge leaders" to justice. Our sense of this term is guided by General Assembly resolution 52/135, which calls for our group to "propose further measures as a means of bringing about national reconciliation, strengthening democracy and addressing the issue of individual accountability", without limiting the issue to that of "leaders", and by the letter of the Cambodian Government of 21 June 1997, which refers simply to "those persons responsible" for the crimes of Democratic Kampuchea. 106. In light of the above, the Group has reached five conclusions regarding the targets of investigation. First, we do not believe that prosecutions should attempt to bring to justice all or even most people who committed violations of international or Cambodian law during the relevant period. Such a scenario is, first and foremost, logistically and financially impossible for any sort of tribunal that respects the due process rights of defendants. Moreover, it is our sense that, whatever one's views about a need for clarity about the events of the past, a reopening of the events through criminal trials on a massive scale would impede the national reconciliation so important for Cambodia and highlighted in resolution 52/135. Finally, the legal questions surrounding the responsibility of many persons at low levels, particularly youthful offenders, are complex and suggest that these persons should not be tried. 107. Second, the Group has carefully considered the concerns noted above regarding the possible effects of prosecuting persons who have surrendered to the Government or returned to civilian life, but does not believe, based on our assessment, that they warrant precluding such prosecutions. As an initial matter, we note that such a limitation is arbitrary in two senses: it ignores the principle that criminal culpability should be linked with the degree of personal responsibility of an individual and not partisan political factors - that justice is blind; and it imparts to the notion of "leaders" a meaning that is at odds with the common understanding of the term. Moreover, the logical consequence of such an argument is that, because nearly all Khmer Rouge leaders have agreed to surrender, no prosecutions should take place. This contradicts the views that we heard while in Cambodia as well as elementary notions of accountability for serious crimes. 108. More significant, however, as a factual matter, many of the possible suspects do not now have armed forces at their disposal. As for the possibility that others who have surrendered might remobilize their forces to mount a renewed struggle against the Government, it is our sense that their followers in general do not exhibit the type of loyalty and military discipline necessary for such an outcome, but are rather interested in simply securing a decent life for themselves and their family. Most important, because the targets of investigation will be limited to those in leadership positions from 1975 to 1979 who were responsible for atrocities, and not Khmer Rouge officials who became leaders of the guerrilla army after 1979 and who did not commit atrocities during the period from 1975 to 1979, the risk of troop redefection becomes smaller. A tribunal that is seen to scrupulously protect the defendants' legal rights would also guard against this risk. We therefore significantly discount these fears of renewed warfare. 109. Third, the Group does not believe that the term "leaders" should be equated with all persons at the 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 the zonal level, as well as officials of torture and interrogation centres such as Tuol Sleng. 110. Therefore, fourth, the Group recommends that any tribunal focus upon those persons most responsible for the most serious violations of human rights during the reign of 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. We do not wish to offer a numerical limit on the number of such persons who could be targets of investigation. It is, nonetheless, the sense of the Group from its consultations and research that the number of persons to be tried might well be in the range of some 20 to 30. While the decisions on whom and when to indict would be solely within the discretion of a prosecutor, the Group believes that the strategy undertaken by the prosecutor of any tribunal should fully take into account the twin goals of individual accountability and national reconciliation. 111. Fifth, and finally, the Group believes that the above 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, bearing the above guidance in mind. A fortiori, the Group opposes the creation of a tribunal that would explicitly be limited in advance to the prosecution of named individuals. B. Location of suspects 112. The majority of persons who would form the targets of investigation are currently in Cambodia. Many have quietly reintegrated themselves into Cambodian life. Almost all would seem to be in areas formally under the administration of the Cambodian Government, some residing in areas close to the Thai border under the effective control of former Khmer Rouge. The location of one senior leader (Ta Mok) is, as of the time of this report, subject to some dispute. It would appear to the Group from credible reports that he is in an area of the Thai-Cambodian border where, at any given time, he might be on either side of the border. Possible targets of investigation may also be living in other States, including those with large numbers of expatriate Cambodians, such as Australia, France or the United States. C. Feasibility of apprehending and detaining suspects 113. The Group raised the issue of apprehension and detention of suspects in most of its meetings. The feasibility of these courses of action turns on two basic issues: the ability of the Governments concerned to undertake them and their willingness to do so. Both of these factors are not, of course, static or independent variables, but can change depending upon political conditions, the involvement of outside assistance and other factors. Our assessment is based on the situation as we determined it during our missions. 114. Regardless of the type of court before which defendants would appear, the primary onus for apprehending and detaining suspects is upon the State in whose territory they are. This means that, for the vast majority of defendants, their capture would be the primary responsibility of the Cambodian Government. As to the ability of the Government to apprehend and detain suspects, the Group notes that the location of most suspects is known, and they are not physically protected from arrest. Indeed, three leaders of the Democratic Kampuchea regime were received by the Government in Phnom Penh in December 1998. At the same time, we note the inability of the Cambodian police to identify and arrest many people responsible for more recent crimes and abuses. In addition, for some individuals, the cooperation of Thailand may be necessary for their arrest. 115. As for the willingness of Cambodia to apprehend and detain suspects, the Group notes that, despite the passage of 20 years since the ouster of the Khmer Rouge, no Khmer Rouge official has ever been arrested and brought before a Cambodian court to answer for atrocities committed during the years of Democratic Kampuchea. During our meeting with the then-Second Prime Minister and now-Prime Minister Hun Sen, however, he informed the Group that the Government would apprehend any person indicted by the independent prosecutor of a tribunal trying Khmer Rouge officials. According to him, this process might involve several steps that would allow for the voluntary surrender of the individual, but, if such steps failed, the Government would arrest the person. The Group welcomes this official and top-level commitment of support for trials of Khmer Rouge leaders, which support will be essential for the success of such trials. 116. Regarding the apprehension and detention of persons who might be in other States, the possibility that Khmer Rouge suspects may now or in the future be on the Thai side of the Cambodian border raises the question of the ability and willingness of the Thai Government to arrest such persons. Based on our meetings with Thai officials and others, the Group is confident that the Thai Government is able to arrest persons on the Thai side of the border. As for the willingness of the Thai Government to do so, the Group was informed by the Deputy Foreign Minister of Thailand, Sukhumbhand Paribatra, that it was not the Government's policy to accept such persons and that if the Government of Cambodia requested the trial of such persons and they were clearly located on Thai soil, the Government would undertake necessary actions in accordance with Thai law to turn them over to the appropriate court. (See discussion in section VII.D below regarding extradition and surrender.) The Group was also informed that, in the event that the Government of Cambodia attempted to arrest such persons, the Government of Thailand would prevent their seeking refuge in Thailand. The Group likewise welcomes these statements. 117. The Group of Experts did not investigate in any detail the feasibility of apprehending and detaining suspects located in other countries. However, it is the view of the Group that the countries most likely to have such persons on their soil would be able to arrest them, and it assumes that most such countries would be willing to do so if a competent court were to ask for such cooperation. 118. The Group further wishes to underline its awareness that the success of any prosecutions will depend upon the willingness of States, and in particular Cambodia, to arrest suspects unwilling to surrender. The presence of some defendants and the absence of others from the International Tribunal for the Former Yugoslavia is clear evidence of this. In the case of Cambodia, it seems extremely unlikely that an international force will undertake the task of apprehending suspects. Thus, the onus will fall on States, acting separately or together, to undertake this process. D. Feasibility of the extradition or surrender of suspects 119. The extradition or surrender of suspected persons is relevant for consideration if the suspects are located in a State that is not itself responsible for trying them. It thus becomes important if Cambodia is to try persons who are located outside the country or if an international court is to try persons. In this context, the signatories to the 1991 Paris Accords assumed obligations to "promote and encourage respect for and observance of human rights and fundamental freedoms in Cambodia as embodied in the relevant international instruments in order, in particular, to prevent the recurrence of human rights abuses".61 This undoubtedly implies a duty to support efforts to bring Khmer Rouge offenders to justice. 120. In the case of trials before a Cambodian court, the Group is aware of no extradition treaties between Cambodia and any other State currently in force. Cambodia and Thailand concluded such a treaty in 1998, but it has not yet been ratified.62 If the treaty were to enter into force, Thailand would implement it through domestic legislation, including its 1929 extradition statute, which provides for various procedural steps. In the absence of extradition treaties, some States, including Thailand, could deport persons for trial before Cambodian courts under various immigration and deportation statutes that often provide for more expedited transfer of persons.63 If suspects were to be tried before an international court, bilateral extradition treaties are inapplicable, but these persons could be transferred under deportation provisions in immigration laws or through statutes enacted especially to provide a legal basis for such cooperation.64 121. With respect to the willingness of States to extradite or surrender suspects, the Group recalls the points made in section VII.C above, and, in particular, the official position of the Government of Thailand as conveyed to the Group by the Deputy Foreign Minister. The Group believes that most other States that might have such suspects on their soil would also be willing to extradite or surrender them to a court of appropriate jurisdiction. VIII. OPTIONS FOR BRINGING PERSONS TO JUSTICE A. A Tribunal established under Cambodian law 122. The first option considered by the Group is the conduct of criminal trials under Cambodian law in a domestic court, under the sponsorship of the Cambodian Government. As a party to the Genocide Convention, Cambodia is obligated to punish genocide that took place on its territory; in the 1991 Paris Accords, it undertook "to take effective measures to ensure that the policies and practices of the past shall never be allowed to return", to "ensure respect for and observance of human rights and fundamental freedoms in Cambodia", and "to adhere to relevant international human rights instruments".65 1. Legal framework for domestic trials 123. Cambodia already has a judicial system, although its legal foundations are somewhat imprecise and its functioning deficient in most important areas. The 1993 Constitution provides for an independent judiciary through a Supreme Court and lower courts.66 The King appoints judges upon the recommendation of the Supreme Council of Magistracy, which was established by the National Assembly in 1994,67 but has met only twice since then, in 1997 and 1998. Although the post-1993 Government has not enacted any detailed laws on the organization of the judicial system, the judicial system currently has trial courts, an appellate court and a Supreme Court. As a matter of the structure of the judiciary, trials in Cambodia could thus take place in the ordinary courts as currently constituted or through the creation by legislation of a special tribunal under Cambodian law. 124. Regarding the substantive law to be applied by such a court, the principle of nullum crimen sine lege requires that the crimes at issue be judged solely from the perspective of the law in force in 1975, i.e., the Code Pénal of 1956 (see section V.B above). No principle of either international law or domestic law would bar the application of the 1956 code to trials, regardless of the criminal law in force in Cambodia at the time of trials. To make the application of such law explicit, the National Assembly could, perhaps with assistance in its preparation by foreign experts, pass a special statute recognizing the applicability of such law to crimes committed during the period from 1975 to 1979. Provisions incompatible with the Constitution, notably the death penalty for certain crimes, would not remain in force.68 Nevertheless, the lack of familiarity of Cambodian judges with that old code could render its use in trials quite difficult. The special statute could also make provision for charging defendants with international crimes that were recognized as of 1975, even if such crimes were not included in the Code Pénal. 125. Cambodian criminal procedure is currently in a state of flux. It is governed in theory by the 1993 Constitution and several prior and subsequent laws. First, the Constitution provides that the arrest, indictment or detention of any person must be done in accordance with law, and bans coercion or physical mistreatment as well as confessions obtained through force. It also includes the right to counsel and the presumption of innocence, adding that "[a]ny case of doubt shall be resolved in favour of the accused".69 Second, the 1992 Supreme National Council Decree on Criminal Law and Procedure, drafted by United Nations officials during the United Nations Transitional Authority in Cambodia period, provides a 75-article basic framework of criminal justice. This law remains in force by virtue of article 139 of the 1993 Constitution.70 According to the law, judges "must decide in complete impartiality, on the basis of facts which are presented to them, and in accordance with law, refusing any pressure, threat or intimidation, direct or indirect, from any of the parties to a proceeding or any other person".71 It contains a simplified system of criminal procedure with basic rights for the accused.72 Third, the National Assembly of the State of Cambodia adopted a Law on Criminal Procedure on 28 January 1993, which the Council of State promulgated on 8 March 1993. This law, which also remains in force by virtue of article 139 of the 1993 Constitution, provides for both public and private (i.e., victim-initiated) prosecutions.73 Courts in Cambodia have relied upon this law for their proceedings, ignoring the greater protections afforded defendants in the 1992 law. Beyond the supremacy of the Constitution - at least as a matter of principle - the relationship between the various laws of criminal procedure remains vague. 2. Functioning of the Cambodian judiciary 126. In order to evaluate the option of trials in Cambodian courts, the Group has devoted considerable attention to the state of the Ca |