Khieu Samphan was the head of state of Democratic Kampuchea, the government the Khmer Rouge formed after taking power in Cambodia in April 1975 and held until January 1979. In two trials before the Extraordinary Chambers in the Courts of Cambodia, the UN-assisted court in Phnom Penh, he was convicted of crimes against humanity in 2014 and of genocide of the Vietnamese, crimes against humanity and grave breaches of the Geneva Conventions in 2018. Each trial ended in a sentence of life imprisonment. On September 22, 2022 the court's Supreme Court Chamber upheld the genocide conviction and the life sentence in a judgment that could not be appealed. He was the last of the five Khmer Rouge leaders to be prosecuted by the tribunal.
He did not accept the findings. Throughout the proceedings he maintained that he held no real power in the regime and that he stood outside the circle around its leader, Pol Pot. The judges found otherwise: that he took part in a joint criminal enterprise with the senior leadership and shared its aims.
Khieu Samphan was born in 1931 in Cambodia and was educated in France, where he completed a doctoral dissertation on the Cambodian economy and its industrial development. Back in Cambodia he worked as an academic and a journalist and edited a left-wing newspaper that was critical of the government. In 1960 Prince Sihanouk named him an opponent of the state, and he was detained that year. He was afterwards elected to parliament and served as commerce minister in 1962 and 1963. In 1967 he left Phnom Penh to join the Khmer Rouge movement under Pol Pot.
After the Khmer Rouge took power in 1975 he was named head of state, and he held other senior party and government positions. The Trial Chamber described his career within the party in some detail. He became a candidate member of the Central Committee of the Communist Party of Kampuchea in 1971 and a full member in 1976. He was one of two members of Office 870, the body that oversaw the implementation of decisions of the party's Standing Committee, and he was responsible for commerce, with a role in economics and foreign trade. In April 1976 he was appointed President of the State Presidium, which the court described as a largely symbolic role with no executive power. He attended meetings of the Central Committee and of the Standing Committee.
Cambodia's government of that period became Democratic Kampuchea, and the period is the subject of all the ECCC's judgments. The court's findings against him cover April 1975 to January 1979. In its headline findings the court held that the regime's leaders committed crimes against humanity and grave breaches of the Geneva Conventions, and that genocide was committed against the Vietnamese and the Cham, two minority groups.
The regime fell in January 1979. Khieu Samphan remained with the movement through its years in decline. He served as prime minister of its government in exile and as party president, and in the early 1990s he was among the figures who took part in the peace talks, remaining the Khmer Rouge's most visible public representative. In 1998 he and Nuon Chea left the movement, as it was disintegrating. He lived in Pailin, near the Thai border, until his arrest.
The tribunal had held its first public hearing of a Khmer Rouge figure shortly before the arrests of November 2007, and trials were expected to begin the following year. On July 18, 2007 the Co-Prosecutors had filed an Introductory Submission naming five people: Nuon Chea, Ieng Sary, Khieu Samphan, Ieng Thirith and Kaing Guek Eav, known as Duch. On September 19, 2007 the Co-Investigating Judges divided the charges into Case 001, concerning Duch, and Case 002, concerning the other four.
Khieu Samphan was arrested in November 2007, days after the arrests of Ieng Sary and Ieng Thirith, and was brought before the tribunal. On November 19, 2007 he was charged with crimes against humanity and grave breaches of the 1949 Geneva Conventions and placed under provisional detention. The Co-Investigating Judges ordered him held for one year, and his lawyers announced that they would appeal. His international defense counsel was a French lawyer.
The detention was extended each year while the Co-Investigating Judges investigated. In October 2008 the tribunal extended it by a year. In December 2008 the defense applied for his release pending the decision on its appeals, among them an appeal over the refusal of a French translation of the case file, and the president of the Pre-Trial Chamber declared the application inadmissible for lack of jurisdiction, accepting the Co-Prosecutors' argument that the tribunal's rules took precedence over the Cambodian Penal Code and did not permit it. Of the five suspects, he was then the last who had been refused release in any form. On July 3, 2009 the Pre-Trial Chamber summarized a 41-page decision rejecting two appeals against the legality of his provisional detention. It found the orders free from procedural defects and held that there were well-founded reasons to believe he had committed the crimes charged, that detention was necessary for his security and for public order, and that the Co-Investigating Judges had exercised their discretion properly. He could remain in detention until November 19, 2009.
The investigation closed in 2010. The Co-Investigating Judges' Closing Order of September 15, 2010 contained the indictments against the four accused. His defense team filed a brief against it on October 18, 2010, arguing that the Order breached fair-trial rules and that the investigation was incomplete and biased, and asking for the investigation to continue; in particular it argued that the judges had limited their investigation to the crimes set out in a defined range of paragraphs of the Introductory Submission and had not investigated the links between the accused and those crimes. On January 13, 2011 the Pre-Trial Chamber announced its decision: it confirmed and partly amended the indictments against Ieng Sary, Ieng Thirith, Khieu Samphan and Nuon Chea and sent all four to trial. His own appeal against the Closing Order was declared inadmissible, while the appeals of the other three were admissible in part and most of their grounds were dismissed. The charges were crimes against humanity, genocide, grave breaches of the 1949 Geneva Conventions, and murder, torture and religious persecution under the 1956 Cambodian Penal Code. The Pre-Trial Chamber amended the Closing Order to specify a link between crimes against humanity and an armed conflict, and held that rape was not a stand-alone crime against humanity for the period 1975 to 1979 but could fall under other inhumane acts. All four remained in provisional detention pending their appearance before the Trial Chamber. The Trial Chamber held its initial hearing from 27 to June 30, 2011.
The case proved too large to try in one piece. In February 2011 the ECCC's Plenary adopted a new rule, Internal Rule 89ter, allowing the Trial Chamber to try a narrower part of an indictment when that served the interests of justice and permitting separate trials for one or several accused. On September 22, 2011 the Trial Chamber used it to order Case 002 divided into smaller trials, each to end in its own verdict and any sentence. The remaining parts of the indictment were not dropped; they were to be tried later.
The Chamber gave its reasons. Shorter trials would produce faster verdicts, which served the interest of victims in timely justice and the right of the accused to an expeditious trial. It followed the chronological and logical order of the Closing Order, expected that the issues in the first trial would inform the role and responsibility of all the accused and lay the groundwork for later charges, and noted that the forced movement of the population had affected a broad cross-section of Cambodians, many of them Civil Parties. It cited other international tribunals where complex cases tried without separation had taken up to ten years to reach a verdict. When the Co-Prosecutors asked it to reconsider, it refused on October 18, 2011, citing real concern about whether the accused could take part in a lengthy trial.
The first trial, Case 002/01, was to cover the history and structure of Democratic Kampuchea, the roles of the accused before and during the regime, and two phases of the movement of the population: the movement out of Phnom Penh in 1975 and the movements from September 1975 to 1977 from four zones. The crimes against humanity in it were murder, extermination, persecution (other than on religious grounds), forced transfer and enforced disappearances, and only insofar as they related to those two phases. Genocide, religious persecution, grave breaches of the Geneva Conventions, the co-operatives, worksites, security centers, execution sites and a third phase of population movements were deferred. The Chamber said that no charges had been discontinued and that later trials would follow.
The severance was itself later tested. On February 8, 2013 the Supreme Court Chamber declared the severance invalid and annulled the Trial Chamber's October 2012 decision on the scope of Case 002/01, finding that the Trial Chamber's reasoning was limited to general principles and did not show how severance served the interests of justice; it left open a reassessment after the parties had been heard. Case 002/01 went to judgment in August 2014, and in a decision of April 7, 2014 the Trial Chamber defined the scope of the second trial.
Two of the four accused never reached a verdict. Ieng Thirith was found unfit to stand trial on November 17, 2011 and her case was severed from the others; she died on August 24, 2015. Ieng Sary died on March 14, 2013, which extinguished the charges against him. The Trial Chamber and the Supreme Court Chamber then dealt only with Nuon Chea and Khieu Samphan.
Substantive hearings opened on November 21, 2011 in Phnom Penh. The accused made their opening statements on 22 and November 23. Khieu Samphan, then 80, denied responsibility for the crimes under the Khmer Rouge. He said that he had been only a nominal head of state without real power, called the prosecution's case guesswork and generalization drawn from books, newspapers and anonymous witnesses, and said that he could not be held responsible for the evacuation of Phnom Penh because it had taken place before he reached the capital. He described his own early years as a time of idealism in which communism had seemed the best course for Cambodia.
The trial ran for 222 hearing days. Closing statements were heard on October 31, 2013. The Chamber heard 92 people: 53 fact witnesses, 5 character witnesses, 31 Civil Parties and 3 experts.
The Trial Chamber delivered its judgment on August 7, 2014. It found Nuon Chea and Khieu Samphan guilty of crimes against humanity committed between April 17, 1975 and December 1977, and sentenced each to life imprisonment.
On the question of his role, the Chamber found that Khieu Samphan took part in a joint criminal enterprise whose aim was to implement a rapid socialist revolution through a "great leap forward" by whatever means necessary. Through that participation he was convicted of murder, political persecution and other inhumane acts (forced transfers and attacks against human dignity) in the first phase of population movement; of political persecution and other inhumane acts (forced transfers and attacks against human dignity) in the second phase; and of murder and extermination in relation to the killings of officials of the previous government at one location in 1975. The Chamber also found that he planned, instigated or aided and abetted extermination in both phases of movement, other inhumane acts comprising enforced disappearances in the second phase, and political persecution in relation to the events at that location. It found that Nuon Chea alone had ordered the crimes and bore superior responsibility for them.
In sentencing, the Chamber treated as aggravating that the crimes were gravely serious, spanned the whole of Cambodia over more than two and a half years and affected a vast number of victims, and that the accused were well educated, understood their actions, abused their positions and targeted vulnerable victims. It found limited mitigating circumstances. It also endorsed eleven reparation projects, including a national remembrance day, a memorial in Phnom Penh, testimonial therapy and self-help groups, exhibitions, a chapter in the school curriculum and a peace learning center.
Both accused appealed. Khieu Samphan filed 148 grounds of appeal and asked the Supreme Court Chamber to quash the judgment, acquit him and order his immediate release. The Co-Prosecutors also appealed, against the Trial Chamber's decision not to apply the third form of joint criminal enterprise. That appeal was inadmissible, but the Supreme Court Chamber examined the doctrine and found that this form was not part of customary international law at the time of the crimes, 1975 to 1979, so that liability for contributing to a common purpose was limited to the crimes the common purpose actually encompassed.
On November 23, 2016 the Supreme Court Chamber allowed his appeal in part. It reversed the convictions for the crime against humanity of extermination for both the evacuation of Phnom Penh and the second phase of transfers, holding that the evidence did not establish the requisite killings on a large scale committed with direct intent, beyond reasonable doubt. It reversed the conviction for persecution on political grounds in the second phase, because the evidence did not show that the vast majority of those moved were "New People", so that the transfers were not established as discriminatory. It reversed the convictions for extermination, murder and persecution on political grounds relating to the killings of former officials at the one location. The Chamber confirmed that at least 250 such officials had been executed there, but found the evidence inadequate to show a policy to kill all of the previous government's soldiers; most of it was out-of-court statements of low probative value, and the Trial Chamber had not considered several pieces of evidence casting doubt on a blanket policy. The events could not be imputed to the accused.
It upheld the convictions for the crimes against humanity of murder, persecution on political grounds and other inhumane acts in relation to the evacuation of Phnom Penh. For the second phase it affirmed the conviction for other inhumane acts, recharacterized on the facts, and entered a conviction for murder.
His other grounds were largely rejected. The Chamber was not persuaded that the Trial Chamber had shown bias. It held that the refusal to call two witnesses was unreasonable but that neither appeared to have exonerating evidence, so that the outcome was not grossly unfair, and it found no error in admitting 1,124 written statements or in relying on the evidence of Civil Parties. It rejected his claim that a strict principle of secrecy had kept him unaware of events, finding it unsubstantiated. It found the Trial Chamber wrong to rely on his attendance at a 1975 congress, on a meeting of 1974 that he had not been shown to attend, and on a speech of 1976 that was wrongly attributed to him, but concluded that its findings on his overall contribution, including his economic role, public statements and diplomatic work, were not unreasonable.
The Chamber kept the life sentence "despite the reversed convictions", citing the scale and gravity of the crimes, the lack of consideration for the fate of the Cambodian population, their extended duration and the accused's significant roles: it held that the imposition of a life sentence on each of the accused was appropriate. On February 27, 2017 the proceedings on the remaining parts of Case 002 were terminated.
The Trial Chamber's decision of April 7, 2014 set the scope of the second trial, which had to be fair, expeditious and reasonably representative of the whole Closing Order. In weighing a further severance it considered the risk of prejudice to the accused, whether the proceedings could be managed efficiently, the need to avoid inconsistencies between separate trials, the burden on witnesses, and whether severance would allow at least some charges to be decided in the accused's lifetime. The charge groups it selected were genocide of the Cham and the Vietnamese, forced marriages and rape nationwide, internal purges, the treatment of Buddhists and the targeting of former officials of the previous government, with a number of named sites for the last of these.
Hearings began on October 17, 2014 and the evidence closed on January 11, 2017. The Chamber heard 185 people: 114 fact witnesses, 63 Civil Parties and 8 experts. Nearly 5,000 documents, running to more than 82,000 pages, were admitted. Closing statements were heard in June 2017. In his, on June 23, 2017, Khieu Samphan again denied responsibility and rejected the description of himself as a murderer.
The judgment was delivered on November 16, 2018. The Trial Chamber grouped the charges under four headings: the establishment and operation of co-operatives and worksites; the establishment and operation of security centers and execution sites; the targeting of specific groups (the Cham, the Vietnamese, Buddhists and former officials of the previous government); and the regulation of marriage. It found that a common purpose to implement a socialist revolution rapidly existed by April 17, 1975 and continued until at least January 6, 1979, that it was carried out through five policies (the movement of the population, co-operatives and worksites, security centers and execution sites, the targeting of specific groups and the regulation of marriage), that it was criminal in character because those policies were intrinsically linked to crimes, and that it was shared by a plurality of senior party leaders and zone secretaries.
On Khieu Samphan the Chamber found that he was not a member of the party's Standing Committee and had never been chairman of Office 870, but that he publicly supported the common purpose and encouraged the implementation of the party's policies. It held that, as head of state, he encouraged and legitimized the criminal policies, trained cadres, contributed to the nationwide purges and approved the delegation of what the court called the "right to smash" to lower ranks. It convicted him, through participation in the joint criminal enterprise and with the required direct, discriminatory and specific intent, of crimes against humanity: murder, extermination, deportation, enslavement, imprisonment, torture, persecution on political, religious and racial grounds, and other inhumane acts including forced transfer and forced marriage; of grave breaches of the Geneva Conventions of 1949: wilful killing, torture and inhuman treatment, with related wilful offenses and unlawful confinement of protected persons; and of genocide by killing members of the Vietnamese group. It also convicted him of aiding and abetting murder at several sites. It found him not responsible for genocide against the Cham, either as an aider and abettor or as a superior. He was acquitted of the remaining crimes within the scope of the case, and the Chamber rejected the defense requests to limit the scope of the trial. It recharacterized some convictions for extermination as murder.
He received life imprisonment, which the Chamber merged with his sentence from Case 002/01 into a single life term. Nuon Chea, then 92, was convicted of genocide of the Vietnamese and the Cham, crimes against humanity and grave breaches of the Geneva Conventions, and also received a life term; the Cham genocide conviction applied to him alone, on the basis of superior responsibility. Khieu Samphan was 87. The Chamber admitted 3,865 Civil Parties and endorsed collective and moral reparation projects covering remembrance, therapy and psychological assistance, and documentation and education, while declining two projects, one in full and one in part, because they did not meet the requirements of the Internal Rules. The full written judgment was delivered in Khmer, English and French on March 28, 2019. His national defense lawyer said that the verdict was very confusing given that his client lacked decision-making power.
Khieu Samphan appealed the 2018 judgment; his notice of appeal raised about 1,824 alleged errors. On September 22, 2022 the Supreme Court Chamber delivered a summary of its decision at the court in Phnom Penh, and the written judgment followed on December 23, 2022. The Chief Judge read the summary and said that the Chamber found no merit in his arguments regarding genocide and rejected them.
The Chamber upheld his convictions for genocide and for grave breaches of the Geneva Conventions in their entirety, and all but two of the crimes against humanity convictions, and confirmed the sentence of life imprisonment. It held that he had direct contemporaneous knowledge of the commission of crimes and shared the intent for their commission, and it rejected his argument that the movement's revolution had been a political plan with benevolent aims, saying that it could not be described as benevolent or altruistic. His procedural argument that the oral summary delivered before the full reasoned judgment voided the judgment was rejected as causing no prejudice. His claims of bias arising from the findings and evidentiary decisions of Case 002/01 were dismissed on the ground that judges can fairly decide similar issues in related cases. His challenges based on the principle of legality were rejected in their entirety: the Chamber found the crimes sufficiently foreseeable and accessible by 1975. It allowed the Trial Chamber's reliance on evidence outside the scope of the Closing Order for limited purposes, such as clarifying context or showing a pattern of conduct, but overturned some findings that rested on evidence the accused had had no chance to confront.
On the law of the crimes the Chamber held that murder with indirect intent (dolus eventualis) was part of customary international law by 1975, and, on its own initiative, that such intent suffices for liability through a joint criminal enterprise. It therefore reversed his convictions for aiding and abetting murder at several sites and entered convictions for murder through the joint criminal enterprise in their place. Most of its findings on his roles, including his Central Committee membership and his part in Office 870, were upheld, as was his participation in the joint criminal enterprise, with his knowledge and intent inferred from his position and conduct. On genocide, it upheld the finding that he took part in a party effort to destroy the Vietnamese group in whole or in part. That conviction is the only final genocide conviction the court produced, since Nuon Chea died in 2019 before his own appeal was decided.
The Chamber reversed two murder convictions that depended on statements of witnesses he could not question, and one conviction for persecution on political grounds at a worksite, where the Trial Chamber had erred on the right to equal treatment under the international law of the time. The Co-Prosecutors' only appeal succeeded: the Chamber extended one existing conviction for other inhumane acts to cover male victims and entered one further conviction. It found errors by the Trial Chamber in sentencing but held that they did not make the sentence inappropriate or unfair in any way, and the life sentence and its merger with the sentence of Case 002/01 stood.
The defense had argued that he held a limited position and had no knowledge of the crimes as they occurred, and that the court had used evidence selectively and applied legal standards he could not have known of at the time. His national lawyer said that he had no further appeal and that the judgment could not be enforced until the written version was issued. The court's international prosecutor said that the judgment would act as a bulwark against revisionism.
The appeal judgment was the last the tribunal issued. The Chambers completed judicial proceedings in all remaining cases: Cases 003, 004/01, 004/02 and 004 had ended between 2018 and 2021 without trial, with charges dismissed or proceedings terminated for lack of a definite and enforceable indictment, and on April 28, 2023 the Supreme Court Chamber ordered the declassification of more than 24,000 documents in Case 002, which completed all judicial processes in that case. The final revision of the court's completion plan, the thirty-sixth, was issued on April 30, 2023. The court's operations, which began in 2006, had cost more than 330 million US dollars, funded mostly by international partners.
The Chambers began their residual functions on January 1, 2023 under an addendum to the 2021 agreement with the Royal Government of Cambodia that entered into force on December 22, 2021. The initial period is three years, after which the parties decide whether, and for how long, some or all of the functions continue. The essential functions are reviewing applications for revision of a judgment, protecting victims and witnesses, supervising the enforcement of sentences, managing the archives, answering requests for access, informing the public and monitoring reparations, of which there are 26 awards to Civil Parties. No further criminal proceedings are to be heard. The review in 2024 was to weigh, among other matters, whether Khieu Samphan would seek a revision of his judgment. Residual work also covers a public resource center in central Phnom Penh, a reconceived public website, outreach to Civil Parties and victims in all 25 Cambodian provinces, and the permanent archiving of the case documents.
The tribunal's first case, Case 001, concerned Kaing Guek Eav, known as Duch, who was convicted in July 2010 and sentenced to 35 years, a term the Supreme Court Chamber increased to life imprisonment in February 2012; he died on September 2, 2020. Nuon Chea, Pol Pot's deputy, was sentenced to life imprisonment in 2014 and again in 2018 and died on August 4, 2019. Ieng Sary died in March 2013 before a judgment, and Ieng Thirith, found unfit to stand trial in 2011, died in August 2015. Pol Pot died in 1998, before the court existed. Of the five people prosecuted, two died before a judgment and three were convicted.
Khieu Samphan has published his own account of the period. His book Reflection on Cambodian History Up to the Era of Democratic Kampuchea denies that he bore responsibility for genocide, and a later English-language edition appeared under the title Cambodia's Recent History and the Reasons behind the Decisions I made.
After the final judgment he continued to serve the sentence in the custody of the tribunal. In early 2023, as a residual function, the Chambers ordered the enforcement of his sentence and he was moved from the tribunal's detention facility to a state prison in Cambodia to serve the rest of it, at the age of 91. The Chambers continue to supervise the enforcement of the sentence. Cambodia has no death penalty. The sentence is life imprisonment, with no further appeal available.
The Extraordinary Chambers in the Courts of Cambodia is a hybrid tribunal with Cambodian and international judges and lawyers, set up under an agreement of June 6, 2003 between the United Nations and the Royal Government of Cambodia, and its governing law, the ECCC Law, was amended on October 27, 2004. It tried only senior leaders of the regime and those judged most responsible, and it issued three judgments: those in Case 001, Case 002/01 and Case 002/02. The United Nations funds the international component of the Chambers and the Royal Government of Cambodia the national component.
A conviction through a joint criminal enterprise holds a participant responsible for crimes committed in pursuit of a shared plan with other members of the group, which is the basis on which the court convicted Khieu Samphan in both trials. In its 2014 and 2016 rulings the court applied the form in which the participants share a common purpose and are liable for the crimes it encompassed, and in 2016 the Supreme Court Chamber held that the extended form, covering foreseeable crimes outside the common purpose, was not customary international law in 1975 to 1979. Genocide, as the court applied it, requires a protected group under the narrower definition of the Genocide Convention, which is why the court examined the Vietnamese and the Cham as groups and found the genocide conviction in his case on the Vietnamese group alone.
Khieu Samphan has said that he was excluded from the inner circle and that others carried the policies of the regime. The Trial Chamber and the Supreme Court Chamber rejected that position as a defense to the charges on which he was convicted. At the same time the Supreme Court Chamber set aside some of the findings on which the first trial judgment had relied: it found that a 1974 meeting had not been shown to have been attended by him and that a speech of 1976 had been wrongly attributed to him, and it reversed some convictions in 2016 and again in 2022. He was not convicted of genocide against the Cham. In 2014 the Trial Chamber found that Nuon Chea alone had ordered the crimes of Case 002/01.
1931: Khieu Samphan is born in Cambodia.
1962 to 1963: Serves as commerce minister.
1967: Joins the Khmer Rouge movement.
April 1975: The Khmer Rouge take power.
April 1976: Appointed President of the State Presidium.
January 1979: The regime falls.
1998: He leaves the movement with Nuon Chea.
July 18, 2007: Co-Prosecutors file the Introductory Submission naming five people.
November 2007: Arrested; charged on November 19, 2007 and placed under provisional detention.
July 3, 2009: Pre-Trial Chamber rejects two appeals against his provisional detention.
September 15, 2010: Closing Order in Case 002.
January 13, 2011: Pre-Trial Chamber confirms and partly amends the indictments and sends the four accused to trial.
September 22, 2011: Trial Chamber orders Case 002 severed.
November 21, 2011: Hearings in Case 002/01 begin.
October 31, 2013: Closing statements in Case 002/01.
April 7, 2014: Trial Chamber defines the scope of Case 002/02.
August 7, 2014: Case 002/01 trial judgment, crimes against humanity, life imprisonment.
October 17, 2014: Hearings in Case 002/02 begin.
November 23, 2016: Supreme Court Chamber appeal judgment in Case 002/01 reverses some convictions and upholds the life sentence.
January 11, 2017: Evidence closes in Case 002/02.
June 23, 2017: Closing statements in Case 002/02.
November 16, 2018: Case 002/02 trial judgment, genocide of the Vietnamese, crimes against humanity, grave breaches of the Geneva Conventions, life imprisonment.
September 22, 2022: Supreme Court Chamber appeal judgment in Case 002/02 upholds the genocide conviction and the life sentence; final.
December 23, 2022: Written appeal judgment delivered.
January 1, 2023: The court begins its residual functions.
Early 2023: Moved to a state prison in Cambodia.