Emerging Voices: Controversy on the Definition of the Cambodian Genocide at the ECCC

[Mélanie Vianney-Liaud is a PhD Candidate in International Law at the Aix-Marseille University in France.]

Many international Human Rights authorities, including the United Nations General Assembly talked about the “Cambodian genocide” to designate the atrocities of the Khmer Rouge. Yet, while the term “genocide” undoubtedly has considerable appeal, it turns out to be legally inappropriate to describe the massacre of 1.7 million of Cambodians from 1975 to 1979. At the Extraordinary Chambers in the Courts of Cambodia (ECCC) – the court in charge of trying the Khmer Rouge – the indictment of the last surviving Khmer Rouge senior leaders, known as “Case 002”, includes very limited genocide charges, only with respect to crimes committed on two minority groups: the Cham and the Vietnamese. Predictably, this decision disappointed many victims.

The trial began in June 2011. However, in September 2011, the Trial Chamber decided to sever Case 002 into smaller trials and limited the scope of the first trial to the evacuation of Phnom Penh on 17 April 1975 and movements of population in other regions of Cambodia. The genocide charges were excluded from the scope of this first trial. On August 7, 2014, the Chamber found the Accused guilty to have committed the crimes against humanity of murder, political persecution and other inhumane acts through their participation in policies to forcibly displace people. It sentenced them life imprisonment.

The Accused are currently trying within a second trial whose scope includes the genocide charges. Since this trial has started on July 30, 2014, it seems appropriate to clarify some of the complexities of the crime of genocide, generated by the specificities of the Cambodian context and the legal framework of the ECCC.

Genocide has been defined in the 1948 Convention on the Prevention and Repression of the Crime of Genocide as requiring the intentional destruction of “a national, ethnical, racial or religious group as such”. The enumeration of specific protected groups implies that the perpetrators’ conception of the victim group bears some relation to one of these protected groups. The Khmer Rouge regime is known for its system of terror and arbitrariness. Conditions of living were so extreme that a substantial part of the population died without that seemed to be directly imputable to group-based persecutions. However, indications of the targeting of particular groups undeniably exist in the case of the Khmer Rouge. This is the case for example, and among others, of the group of educated people and city dwellers referred to as “new people” by the Khmer Rouge. Contrary to “base people,” “new people” did not join the Khmer Rouge revolution prior to April 17, 1975 when Phnom Penh fell into Khmer Rouge’s hands. Forcibly transferred from cities to countryside, “new people” members were often targeted based on this identity (Indictment, § 227). This group however, does not fall under the listed classification defined in the Genocide Convention as the distinction made by the Khmer Rouge was based on an individual’s socioeconomic background.

Thus, although the Khmer Rouge had policies of group discrimination, both in regard to ethnic minorities as well as with respect to groups identified within the ethnic Khmer- majority, the characterization of genocide within the definition of the Convention only applies to crimes committed on minority groups. Many victims have therefore seen the crimes for which they have suffered be excluded from the characterization of the “crime of crimes,” even though they are victims of crimes of the same gravity as those committed against the minorities.

The definition introduced by the Genocide Convention is too narrow to mirror the historical analysis of the Khmer Rouge criminal phenomenon. The fact that the Khmer Rouge targeted groups within the Khmer-majority population shows that the strict enumeration of protected groups is inappropriate. The question that arises then is whether it would be conceivable to have this definition evolved to correspond with the social reality of the “Cambodian genocide”.

Cambodia ratified the Genocide Convention in 1949. Consequently, since its entry into force in 1951, Cambodia has been submitted to the conventional obligation to “enact (…) the necessary legislation to give effect to the provisions of the Convention” (Convention, Article V). However, under the Khmer Rouge, the Convention had not been received into national law yet. This reception only occurred in 2001, with the creation of the ECCC. The 2003 international agreement between the United Nations and Cambodia and the 2004 amended domestic law which establish the court, provide both for its jurisdiction over the crime of genocide “as defined in the 1948 Convention.” However, and despite these provisions, the domestic law then gives a definition of the crime of genocide that differs in key points from the definition set out in the Convention.

A state is not prohibited by the 1948 Convention from adopting a broader definition of genocide. The Convention only adopted by a convention a principle which already existed in international customary law. Thus, the reception of the Convention into national legal orders has often resulted in a broadening of the definition of the crime. France, for instance, has gone further adding the “group determined by any (…) arbitrary criterion” to the groups protected by the Convention (French Penal Code, Article 211-1).

In the particular case of the ECCC however, the differences between the Convention and the Law have important implications for its subject-matter jurisdiction. In the English version of the ECCC Law, with regard to the list of underlying crimes, the Law indeed replaces the expression “any of the following acts” with “any acts” and the phrase ‘as such’ referring to “group” in the Genocide Convention with ‘such as’ but referring to “acts”.

Genocide Convention, Article II

“Genocide means any of the following acts committed with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such (…).”

ECCC Law, Article 4

The acts of genocide (…) mean any acts committed with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group, such as (…).”

One major implication relates to the required genocidal intent. In the Convention, “as such” refers to “group” in a way that creates an additional burden of proof to show that the intent of the perpetrator was to destroy the group as a distinct entity, and not (only) to target members of the group based on their membership. As argued by ECCC defense team, the change of the phrase “such as” lowers the intent required as a perpetrator would still be held liable for genocide, even if the acts he committed with the intent to destroy the group was perpetrated without intending to destroy the group “as such.”

If such a definition of genocide does probably not allow including other protected groups, it undoubtedly makes the perpetrator’s intent easier to prove. Contrary to the Vietnamese group, no Khmer Rouge document clearly attests a direct call to kill the entire Cham group (Indictment, § 1339 and 1346). Thus, proving the Khmer Rouge’s intent to destroy the Cham group ‘as such’ will undoubtedly be difficult at trial, unless the ‘as such’ requirement is dismissed. However, if the ECCC chooses to apply this broader definition, it will be faced with two difficulties. The first is that without the “as such” requirement, genocide would lose its specific character and amount to a crime against humanity of persecution. The second is that the accused could be convicted of genocide in a form which is unknown to current international criminal law. This raises the issue vis-à-vis the nullum crimen sine lege principle. According to this principle indeed, a person cannot be convicted of a crime that did not exist at the time of the commission of the acts in question. In the indictment, “in order to avoid a breach of [this] principle, the Co-Investigating Judges (…) appl[ied] the international definition of genocide” (Indictment, § 1311).

By applying this definition, the Co-Investigating Judges decided to remain confined to the most restricted meaning of genocide, implying only minority groups but excluding many other victims. The Co-Investigating Judges also excluded genocide charges of crimes committed against the Khmer Krom minority. The fact that the law in respect to genocide is so contentious has made them very cautious. As T. Forster highlighted, a potential failure of genocide charges leading to an acquittal of the accused in this respect is seen as great risk, particularly because of the important symbolic value of genocide. This explains why genocide was charged only with regard to crimes committed against the Cham and the Vietnamese minorities as those presented, at first glance, with the least difficulties.

The ECCC judges may change the legal characterization of the crimes brought to their attention (see Internal Rule 98). However, with such limited charges, they will be unlikely to want to address further controversial issues of genocide with regard to the Cambodian case during the trial. Excluding from the court records, open debate on possible characterizations of genocide of crimes committed against other groups of the Cambodian population will undeniably disappoint many victims. Those will indeed be left without explanations on the reason of the exclusion of “their” crimes from the characterization of genocide and may have the feeling that their suffering is not recognized.