Emerging Voices: ‘Race’ in the ECCC Judgment in the Case 002/02–One Step Forward, Two Steps Back?

[Carola Lingaas is an Associate Professor of Law at VID Specialized University in Oslo (Norway). She earned her PhD in November 2017 from the University of Oslo with a thesis on ‘The Concept of Race in International Criminal Law’, which is under contract for publication by Routledge.]

Introduction

In November 2018, the Extraordinary Chambers of the Courts in Cambodia (ECCC) rendered its judgment in the case 002/02 against the former senior Khmer Rouge leaders Nuon Chea  and Khieu Samphân (summary judgment). In March 2019, the Trial Chamber finally notified the full written version of the judgment (Case 002/02 judgment), spreading across no less than 2259 pages. Although the judgment undoubtedly makes an important contribution to achieving accountability of the most responsible, I am left with mixed feelings as to whether the ECCC was able to meet my expectations. One the hand, the judgment has been described a landmark decision with regard to the interpretation of certain crimes against humanity (Opinio Juris 20.11.2018). On the other hand, the judgment disappoints in (too) conservatively interpreting the crime of genocide. This post will focus on the judgment’s discussion of race as an element of the crimes of genocide and persecution.

Group Categories

In dealing with the alleged commission of genocide, the ECCC was challenged to categorize the victims of the Khmer Rouge purges as members of a national, racial, ethnical or religious group. The prosecution chose to focus its Closing Order (indictment) on the Muslim Cham and Vietnamese, although also other collectivities had been victimized by the Khmer Rouge regime. The Closing Order identified the Cham victim group as an “ethnic and religious group that distinguishes itself as such, and is identified as such by others” and the Vietnamese group as “an ethnic and national group, who may also have been considered as a racial group by the CPK [Communist Party of Kampuchea]” (Indictment, paras. 1336 and 1343). The prosecution thereby provided the Trial Chamber with a possible selection of victim group categories.

Stable and Permanent

The defendants’ defence lawyers submitted that the victim groups should be determined by adopting an objective approach and that the subjective perception of the perpetrators alone was not sufficient to establish group membership (para. 794). The Trial Chamber followed these submissions and held that an objective approach was consistent with the purpose of the Genocide Convention that protects “relatively stable and permanent groups” (para. 795). In doing so, it appears as though the ECCC Trial Chamber reverted to the heavily criticized (here, here, and here) criteria of stability and permanence that the ICTR Akayesu Trial Judgement (para. 516) introduced in order to broaden the protection of the law of genocide.

Cham victims of genocide

In its analysis of the Cham victims, the ECCC goes beyond the indictment’s examination of the ethnic and religious group membership. Indeed, in several parts of the judgment the issue of race emerges in the context of how the Cham were perceived. For instance, during the trial, an expert explained that the “Khmer Rouge confused the idea of race with that of culture, creed, language, and nation, as had the Nazis”. In the expert’s analysis, the Khmer Rouge arbitrarily determined the minorities that were considered a threat to the Kampuchean nation (para. 3219, footnote 10844). Although not discussed on trial, one Khmer Rouge document read: “[T]he Cham race is not to be spared because it has a history of resisting the socialist revolution. (…) So we undertake a policy of discarding them now” (quoted in Kiernan, p. 280). Another directive issued by the CPK held that “[t]here was no Cham race or Cham country (…), there were [to be] no Chams, no Chinese, no nothing” (ibid., p. 279). This evidence seems to indicate that the Cham were perceived as a distinct racial rather than a religious or ethnical group. Nonetheless, the ECCC convicted the accused of the crime of genocide of a religious and ethnic group against the Cham (paras. 3345-3348).

Vietnamese victims of genocide

The judgment discusses how, under influence of the intensifying conflict with Vietnam, the CPK leadership set the preservation of the Khmer Rouge as its top priority. This led to an unprecedented stigmatization and dehumanization of the Vietnamese population residing in Cambodia (paras. 3228 and 3345). In the view of the CPK, the Vietnamese Yuon were the most dangerous, acute and hereditary enemy, based on a perception of animosity and a long-standing antipathy between the Kampuchean and the Vietnamese, whose composition was considered to be poisonous (paras. 3381, 3382, 3387, 3388, 3518). The perpetrators targeted the Vietnamese not as individuals, but as members of an ostensible distinct group. Such collective targeting of a group that is understood as ‘the enemy’ is symptomatic for any genocide (Chalk/Jonassohn, p. 28; Hiebert, p. 142). As in earlier genocides, census lists on village level and family record books were used to identify, single-out, and separate the victims (paras. 3421, 3516 and 3517). In the view of the CPK, the Vietnamese ethnicity was passed down matrilineally, through the mother’s blood. Such understanding reveals a racialized conception: the blood of the mother is determinative of the inherited (racial) group membership. Because of this belief, the Khmer Rouge implemented a policy of ‘digging up the roots’, meaning that not only the Vietnamese mothers, but also their children had to be eliminated in order to avoid that Vietnamese blood would be passed down (paras. 3423-3428; 3518). After examining all available evidence, the Trial Chamber concluded that the mens rea of the crime of genocide against the Vietnamese was established. As proof, the judgment lists the direct and indiscriminate targeting of the Vietnamese as manifested in internal party documents and public speeches, the creation of census lists, as well as the adherence to a matrilineal policy (para. 3518).

Racial Group Membership

In discussing the Vietnamese victim group, the judgment points to the existence of distinct features, such as language, cuisine, cultural practices, traditional dresses, and historical heritage. Also, most Vietnamese in Cambodia were not fluent in Khmer or spoke it with an accent. In addition to such objective characteristics, the judges held that the Vietnamese “were identified and identified themselves” as Vietnamese because of ancestral connections to Vietnam “and/or because of their physical traits”. The Trial Chamber concluded that the Vietnamese constituted an ethnic, national and racial group at the relevant time (paras. 3419, 3420, 3514).

The judgment discusses not only the perpetrators’ perception of their victims (“were identified”), but also the victims own subjective understanding of their group membership (“identified themselves”). The wording “and/or because of their physical traits” implies that the Vietnamese, due to distinct physical traits, considered themselves a distinct racial group. This argument is doubtful. Rather, according to the CPK leadership’s perception, the Khmer belonged to a superior race that was under imminent threat by the Vietnamese race. The perception of being exposed to a threat by a so-called out-group is a constitutive element of any genocide (Kielsgard, p. 126; Bassiouni, p. 63). The construction of the Vietnameses’ ostensive inferior racial group membership is thus a creation of the perpetrator’s fantasy. Such racialized understanding is often promulgated by means of propaganda, and the victims become aware of their racial categorisation, as in Cambodia.

Arguably, the Chamber’s lack of further examination of the racial group membership could be seen as a missed opportunity. This is particularly regrettable given that the prosecution presented substantial indications of a racialized understanding of the victim group in the distinct genocidal stages (see here and here for further reading). The judges incorporated these discussions in their analysis of the CPK policies, yet without connecting them to the examination of the crime of genocide. The prosecution also demonstrated the perception of the racial otherness of the Vietnamese, including the ostensive matrilineal bloodlines, which shows an understanding of an innate biological differentness in the eyes of the perpetrators. As such, an exclusive finding that the Vietnamese were a protected racial group of the crime of genocide could have been expected.

Persecution on racial grounds – and its relationship to genocide

In its examination of persecution, the Chamber also focuses on the perceived racial group membership of the Vietnamese victims. The indictment was limited to the crime of persecution on racial grounds only, leaving aside any other possible persecutory grounds (Indictment, paras. 1422-1425). The Trial Chamber concluded that the crime had been committed and reverted to the exact same arguments as presented for the crime of genocide: the perceived matrilineal heritance of blood, the dissemination of hatred against the Vietnamese through propaganda, and the degrading and dehumanizing treatment of the Vietnamese as a group (para. 3513).

The judges’ hesitation to find a genocide against a – perceived – racial group is thus even more remarkable, given that both crimes built on the very same facts. While the evidence was considered sufficient for a conviction of persecution on racial grounds, it was apparently insufficient for a conviction for the crime of genocide, where the judgment offers three distinct group memberships of the victims (“national, ethnic, and/or racial”). Arguably, latter categorization could be a breach of the principle of effectiveness (Tadić ICTY Appeals Judgment, para. 284; Galić ICTY Trial Judgment, para. 91), since the judges do not attempt to conclusively classify the victims as one of the four protected groups. Moreover, the alternate/cumulative categorization is not sufficiently specific and it could violate the requirement of legal certainty.

The judges’ reluctance to conclusively categorise the Vietnamese as members of one specific victim group of genocide might originate in the fact that none of the parties in the case contested that the Vietnamese constituted a group, as such. Nuon Chea’s defence concurred with their categorisation as a distinct ethnic, national and racial group, while Khieu Samphân’s defence acknowledged their ethnic and national characteristics, but rejected their racial classification. The civil party lead co-lawyer in this context highlighted evidence of the Vietnameses’ physical features and skin colour, among other, which are objective and scientific, morally and legally highly contested racial features (para. 3418). Since the Vietnameses’ racial group categorisation was the only one disputed, it is understandable that the Chamber did not attempt to build a conviction for genocide on this ground alone.

Racial group vs. Racial Grounds

Of course, the two crimes do have distinct objective and subjective elements: the crime against humanity of persecution is committed on, among other, racial grounds, whereas the crime of genocide is committed with the intent to destroy a racial group. However, ‘racial grounds’ and ‘racial group’ are juxtaposed in the case law of the international criminal tribunals. For instance, in its analysis of persecution in the Kaing Guek Eav Duch case, the ECCC Supreme Court Chamber held that “the perpetrator may define the targeted victims based on a subjective assessment as to what group or groups pose a political threat or danger” (Duch Appeal Judgment, para. 272). Such subjective group categorisation was confirmed by the Nuon Chea and Khieu Samphân judgment. It held that the victim group had to be sufficiently discernible, however, it was the perpetrator who defined the group (paras. 714 and 1174). The Closing Order was even more explicit in stating: “Vietnamese people were persecuted on the basis that the CPK considered the Vietnamese to be racially distinct from Cambodian people, based on biological and particularly matrilineal descent. (…) Vietnamese people were deliberately and systematically identified and targeted due to their perceived race” (Indictment, para. 1422).

Conclusion

According to research, the Khmer Rouge perceived their victims as a threat to revolutionary ideologies and ideals of racial purity. They believed that each category of classes maintained its own essence, characterised by certain biological traits (Hiebert, p. 174). The recent judgment frequently reverts to such perceptions of innate differences in groups. It refers to the need of the CPK to preserve and defend the “Kampuchean race” (Judgment, paras. 3216 and 3218) or the fear that “the Kampuchean race would be gone within 30 years” (para. 3824). The ECCC could have lived up to the expectations of rendering a landmark case in progressively interpreting race for the crime of genocide, based on the perpetrators’ racialized understanding of the victims’ groups. The judgment made a step forward with regard to the crime of persecution, but two steps back for the crime of genocide.