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

by Melanie Vianney-Liaud

[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.

http://opiniojuris.org/2014/08/20/emerging-voices-controversy-definition-cambodian-genocide-eccc/

7 Responses

  1. “the characterization of genocide within the definition of the Convention only applies to crimes committed on minority groups”

    With respect, genocide can be perpetrated against people who are a majority in their own country. The genocide of the Poles in WWII is an obvious example.

  2. Dear Melanie,

    Firstly, allow me to congratulate you on the thorough analysis of the genocide controversy before the Ex/oCCC.

    Secondly, if I may ask, are you of the opinion that a revival of the highly controversial negative definition test advocated in the post-Jelisić (1999) jurisprudence of the ICTY, although finally repudiated under the dicta of the Stakić Case (2003), may meet the factual peculiarities of the ‘Cambodian genocide’?

    Personally, I think that no existent jurisprudential precedent (not even the Akayeshu principle) can do justice under these particular circumstances. If the whole problematic is to be focused on the political nature of the discriminatory criteria (new vs base etc etc), we know that the law as it stands appears inadequate, much like the conclusion of the IACommHR in the Diaz Case (1997).

    However, given the uniquity of the case in hand, I believe that one possible solution rests within the combination of the Quigley-coined concept of auto-/self-genocide [Quigley at §303e in Nike & alt (eds), Genocide in Cambodia (2000)] and the ICTR’s Bagilishema jurisprudential rule on the quasi-fictional creation of groups (prescribed by the Convention) in the mind of the perpetrator. Do you think that such a scenario is possible given the position adopted by the Chambers so far?

  3. Hurst Hannum wrote an interesting article on Cambodian Genocide and recognized the possibility of “auto-genocide” (when the perpetrator is from the same group that is targeted), but most of his examples were political or ideological targetings and can be crimes against humanity but not genocide. An extract is in our casebook: Paust, Bassiouni, et al., International Criminal Law 839-43 (4 ed. 2013, Carolina Academic Press — http://www.cap-press.com )

  4. Thank you to the three of you for your relevant comments and interesting questions which has led me to write a quite long reply… Dimitrios mentioned several decisions from the ICTY-R. I have tried to apply all of them to the Cambodian case.
    – Concerning the negative construction of the ‘protected groups’ (ICTY, Jelisic 1999)
    In Jelisic, the ICTY Trial Chamber (TC) elaborated a negative construction of the concept of “protected group” (para. 70-71). It first chose to evaluate membership in a national, ethnical or racial group using a subjective criterion. It is the stigmatisation of a group as a distinct national, ethnical or racial unit by the community which allows it to be determined whether a targeted population constitutes a national, ethnical or racial group in the eyes of the alleged perpetrators. It then held that a group may be stigmatised in this manner by way of positive or negative criteria. A “negative approach” would consist of identifying individuals as not being part of the group to which the perpetrators of the crime consider that they themselves belong and which to them displays specific national, ethnical, racial or religious characteristics. Thereby, all individuals thus rejected would, by exclusion, make up a distinct group.
    In my opinion, it remains that within this approach, the group to which the perpetrators consider that they themselves belong (the Khmer Rouge group) needs to display specific national, ethnical, racial or religious characteristics that to them, they do not share with the other groups.

    The Khmer Rouge group has no religion (religious characteristic) and indeed, the Khmer Rouge targeted people for religious grounds, not only the Muslim Cham group, but also Buddhist monks. The Khmer Rouge are Cambodians (national characteristic) and indeed, they targeted the Vietnamese group. However, they also stigmatised other Cambodians, namely people belonging to the same national group. We can do the same observation if we consider the ethnic and racial characteristics of the Khmer Rouge group. Indeed, the Khmer Rouge targeted other Khmers. Historians agree that 80% of Khmer nationals were victims of the Khmer Rouge atrocities (see Ciorciarci John D., Chhang Youk, Documenting the Crimes of Democratic Kampuchea (2005), p. 261). Furthermore, some members of the Khmer Rouge group were not Khmers but belonged to ethnic minorities, for example the Jarai minority. The Khmer Rouge also targeted members of their own group within internal purges (Indictment, § 192).

    This shows that it is very difficult to define the Khmer Rouge group as a religious, national, ethnic, or racial group distinct from the populations that they stigmatised. Indeed, the membership to the Khmer Rouge group was not determined by religious, national, ethnic or racial criteria but by political criteria. The Khmer rouge targeted everyone who did not share their ideology (whether real or supposed), calling them “enemies” (Indictment, § 1417) or “bad elements”.

    It seems that the Khmer Rouge had a very particular idea of their “race” and of its purity. For instance, the systematic massacre of the cadres of the Khmer Republic (the previous regime) and their families indicates that the Khmer Rouge considered a certain percentage of the Cambodian population, although Khmer, as not fit for their envisaged society and hence bound for destruction (see rightly Hannum Hurst, International Law and Cambodian Genocide: The Sounds of Silence, 1989 mentioned by Jordan in his comment). However, it seems that the Khmer Rouge “only” considered these people as vitiated and definitely corrupted by the previous regime. They remained members of the same racial group but had to be eliminated because irremediable.

    In Jelisic, the ICTY TC expressly excluded political groups from the potentially targeted groups protected by the Convention (para. 69). Consequently, I think that if the negative approach of the Jelisic case might, in the case of Cambodia, allow to characterize as genocide, crimes committed against other groups as those of the Cham and the Vietnamese (for instance, the Buddhist monks), it would nevertheless fail to account for crimes committed against people of the Cambodian and Khmer-majority group.
    Furthermore, as mentioned in your comment, such negative construction was later rejected by the ICTY Appeal Chamber in Stakic (2006): “the term ‘as such’ has great significance, for it shows that the offence requires intent to destroy a collection of people who have a particular group identity. Yet when a person targets individuals because they lack a particular national, ethnical, racial, or religious characteristic, the intent is not to destroy particular groups with particular identities as such, but simply to destroy individuals because they lack certain national, ethnical, racial or religious characteristics”. Thus, “genocide entails the destruction of unique, positively defined groups with particular identities”.

    I have mentioned in my post that the ‘as such’ requirement is not included in the ECCC domestic law establishing the Court. Thus, if this definition is applied, this may allow going back on the Stakic decision…

    – Concerning the possibility to add other ‘protected groups’ (ICTR, Akayesu 1998)
    In Akayesu, because of the ambiguities surrounding characterization of the Tutsi as one of the protected groups, the ICTR Trial Chamber expanded the definition of genocide. It held that the list of protected groups was not be limited to only the four groups expressly mentioned but also included any group which is stable and permanent like the said four groups (para. 516).

    In my post, I have mentioned the “new people” and highlighted that evidence showed “new people” members were targeted based on this identity (Indictment, §§ 227, 1417 and 1424). The question that arises is whether the “new people” might be considered a “stable and permanent” group within the meaning of the Convention. I think that there is here a matter of debate…

    In Akayesu, at para. 513, the ICTR Trial Chamber held that “stable” group are those “constituted in a permanent fashion” and exclude “membership in [stable and permanent] groups would seem to be normally not challengeable by its members, who belong to it automatically, by birth, in a continuous and often irremediable manner”.

    The “new people” were a group identity created and defined by the Khmer Rouge. The concepts of “base people” and “new people” had not existed in Cambodian society before the Khmer Rouge started distinguishing persons according to their urban or rural origin. The distinction was based on provenance and the social and economical background in a larger sense. The “new people” group included people from mostly urban areas that had not been under the control of the Khmer Rouge prior to 17 April 1975. Being quite loosely defined, it was comprised of a broad spectrum of the population (Forster Thomas, The Khmer Rouge and the Crime of Genocide, p.147). If the “new people” was to be “re-fashioned” and transformed to dependable and useful members of society, in fact, as it has been reported by witnesses testifying before the ECCC, its members were not able to be turned into members of the “base people” group and vice-versa.

    However, despite the relative stability of the “new people” and “base people” groups within the Khmer Rouge regime, it remains that the distinction between these groups rests on economic criteria. The ICTR Trial Chamber, also in Akayesu, opposed “stable group” to “more ‘mobile’ groups”, explicitly citing “political and economic groups”.

    For the moment, I quite agree with Dimitrios’ position. The current state of the international criminal jurisprudence does not appear to offer any interpretation of the Genocide Convention, which would mirror the Khmer Rouge phenomenon and account of its particularities. This is why in my post, I wrote that “although the Khmer Rouge had policies of group discrimination (…) 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”. I should have added then “in the Cambodian case” to be right. Indeed, I agree with Rob, nothing in the Genocide Convention requires that a protected group be a minority group. However, I would express reservations about the relevance of the genocide of the Poles during World War II. It seems to me that in that case, the atrocities were committed by the German Nazis and not by the Poles themselves (but I am not a specialist, so I ask you to correct me if I am wrong). Indeed, what really makes the specificity of the Cambodian case, in my view, is that the Khmer Rouge seemed to have implemented a policy to “cleanse, purify and consolidate the[ir own] Khmer national group” (Hannum Hurst).

    – Concerning the possibility of an “auto-genocide” (Quigley John B. and Hannum Hurst)

    It seems to be admitted that cases where the victims are part of the perpetrators’ own group be excluded by the Convention (see Quigley John B.). In Cambodia, when it is said that perpetrators and victims belonged to the same group, the group meant is either that of the Cambodian nationals as defined by their nationality or the ethnic Khmer majority as defined according to a current definition of ethnicity (Forster Thomas). However, the categorization of the Khmer people as a national group does not appear to be too contentious. Indeed, various legal experts have recognized that the Khmer people constitute a national group within the meaning of the Convention (see for example, the report of the Group of Experts appointed by the UN Secretary General to assess the possibility to bring the Khmer Rouge to justice, UN Doc. S/1999/231, 1999) Thus, what may be argued is that the Khmer Rouge intended to destroy parts of their Khmer national group. This situation has been referred to as “autogenocide” (for example, Hannum Hurst, p. 107).

    Those who disagree with the characterisation of genocide of crimes committed against the Cambodian majority argue that, while the Cambodian people clearly constitute a national group, the Khmer Rouge targeted their non-minority Cambodian victims as members of political, professional, or economic groups (which are not protected groups under the definition of genocide), rather than as member of a national group” (Abrams Jason, Shabas William).

    For Hannum and Quigley, who affirm that these crimes may be characterised as genocide, the subtlety of the reasoning lies in the distinction between the intent and the motive. Indeed, Appeal Chambers of both ICTY-R have stated the “irrelevance” of motive and highlighted “the necessity to distinguish specific intent from motive”. The personal motive of the perpetrator of genocide may be, for example, to obtain personal economic benefits, or political advantage or some form of power. The existence of a personal motive does not preclude the perpetrator from also having the specific intent to commit genocide (see Jelisic, 5 July 2001, para. 49 or Blaskic, 29 July 2004, para. 694). The absence of a requirement of motive has led Hurst Hannum to point out that if one intends to destroy a protected group, it is not necessary that one do so out of a motivation related to the distinguishing feature of the group (p. 108). Thus, the political and economical background of the “new people” may be seen as “mere” features of the group which constituted a motive for attack rather than a bona fide social, political or economic group. For Hannum, “the wholesale massacres of families, villages and other subgroups of the Khmer people provide that the aim of the Khmer Rouge was (…) the wholesale remaking of the Khmer people according to a deliberately imposed vision. Indeed, the mass killings were a direct consequence of the Khmer Rouge’s specific intent to purify the Khmer national group. The regime’s intent to purify the group implies their intent to destroy part of group as such.” (p. 89).

    During the investigation stage in Case 002, the victims’ lawyers filed an investigative request to the Co-Investigating Judges concerning the charge of genocide against the Khmer nationals to appoint an expert to establish whether the charge of genocide against this group may be justifiable. Despite my research, I have not found the answer of the Co-Investigating Judges to this request and whether they granted or rejected it. However, as the indictment does not include genocide charge for the crimes committed against the Khmer national group, I conclude that either they did not appoint the expert, or that the appointed expert found that the facts could not be characterised as genocide.

    What I find particularly unfortunate is that this debate has not taken place publicly at the ECCC, especially because I think that Hannum’s position (or Quigley’s one) is not without interest. The investigation stage before the ECCC is conducted by two Co-Investingating Judges (and not by the parties like at the ICTY-R) in order to exclude the charges for which there is not enough supporting evidence and thus, makes the trial phase simpler and quicker. However, this phase is confidential.

    During the trial, the procedural rules allow the judges to raise the issue of genocide against the Khmer national group on their own. However, I think that the Trial Chamber is unlikely to address the issue on genocide due to the very limited genocide charges included in the indictment and in particular, its concern to quickly try the (old and frequently ill) accused. For this debate to take place, one of the parties would have to mention the issue at hearing. It is, I think, the role of the 2 lead lawyers who represent the victims (called civil parties) at the ECCC to do so because it would be in their interests, but it will depend on their priorities.

  5. Dear Mélanie,

    I kindly thank you for your detailed and learned response to my layman’s questions regarding the Ex/oCCC.

    You original post’s interesting and lucid observations can only be compared to the present rejoinder of yours.

    Allow me to express the wish of reading more products of your scientific research on this or other relevant subjects.

    Until then,

    Veuillez recevoir madame mes sincères salutations.

    D A K

  6. Indeed, a very informed and nuanced response to our responses. Thanks.
    I agree that auto-genocide is possible (e.g., a Catholic person killing other Catholics because they are Catholic [or at least in part because they are Catholic, perhaps having “mixed” or several motives). With respect to Hurt’s attention to targetings, however, it seems that most were not targeted because they were Khemer but for other reasons (e.g., political, ideological, class, education).
    I do not think that the Akayesu attempt to rewrite the Convention was appropriate with respect to so-called “stable” and other groups.
    Reality is also more complex — some people change their religion or national status (unstable) as well as their political opinions.

  7. p.s. “Hurt’s” should be “Hurst’s”

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