Symposium on the ECCC: The Case 002/02 Appeal Judgment’s Implications for Genocide Recognition in Cambodia

The Extraordinary Chambers in the Courts of Cambodia (ECCC) was created by the Cambodian government in partnership with the United Nations. Its purpose was to prosecute crimes under international and Cambodian law committed between 1975 and 1979, when Cambodia was ruled by the Communist Party of Kampuchea (CPK), better known as the ‘Khmer Rouge’. On 22 September 2022, the ECCC’s appeal chamber delivered its final judgment, upholding former CPK leader Khieu Samphan’s conviction for war crimes, crimes against humanity and genocide. 

Responding to that final judgment, this Opinio Juris symposium reflects on the ECCC’s trials, tribulations, and legacy. In this post, Rachel Killean examines the ECCC’s findings on the crime of genocide (for more on the ECCC’s adjudication of genocide, see Sarah Williams’s post in this symposium).

[Dr Rachel Killean is a Senior Lecturer at Sydney Law School and a member of the Sydney Institute of Criminology, the Sydney Southeast Asia Centre, and the Sydney Environment Institute.]

Prosecuting Genocide at the ECCC

On the 22^nd September 2022 the Supreme Court Chamber of the Extraordinary Chambers in the Courts of Cambodia affirmed Khieu Samphân’s 2018 conviction for the crime of genocide perpetrated against the ethnic Vietnamese population. This conviction (‘Case 002/02’) identified Khieu Samphân – the former Head of State of Democratic Kampuchea – as one participant in a Joint Criminal Enterprise, with the common purpose being to implement a rapid socialist revolution in Cambodia. As detailed in the Trial Chamber’s judgment, this JCE was characterised by, among other things, the ‘targeting of specific groups’. These groups included the Cham Islamic group, Buddhists, and former Khmer Republic officials, as well as the Vietnamese.

Khieu Samphan’s affirmed conviction is the only charge of genocide to have been adjudicated all the way to the appeal stage. In 2019, Nuon Chea – Pol Pot’s second in command – died before his own appeal against convictions for genocide perpetrated against the Cham and the Vietnamese could be determined.  Cases against two further alleged JCE participants were never completed: Ieng Thirith was found unfit to stand trial in 2012, and Ieng Sary died in 2013 before a trial judgment was rendered. Allegations of genocide against the Cham, the Vietnamese, and the Khmer Krom minority group were also made against Ao An, Yim Tith and Meas Muth respectively. However, these cases faced persistent resistance from the national side of the ECCC, and were eventually closed without making it to trial. 

What Does This Mean for Genocide Recognition in Cambodia? 

While Nuon Chea’s death prompted an urgent request from his defence team that his conviction be vacated, the Supreme Court Chamber found no legal reason to do so, and affirmed that ‘the complete record of the Trial Chamber’s findings’ would continue to stand. The ECCC can therefore be understood to have legally recognised genocide perpetrated against two minority groups: the Cham and the Vietnamese. 

These judicial findings have been accompanied by reparation projects, implemented by civil society groups and designed to specifically recognise the experiences of the Cham and Vietnamese. These have included a ‘community media project’ which explored the Cham people’s experiences under the regime through film and multimedia, a ‘voices from ethnic minorities’ mobile exhibition which detailed the harms perpetrated against both groups, and a ‘legal and civic education’ project designed to support ethnic Vietnamese victims in understanding their legal rights.

These forms of judicial and reparative recognition are undoubtedly important. As detailed in the Case 002/02 judgment, both communities experienced significant violations of their human rights, which escalated into policies of deliberate extermination over the course of the Khmer Rouge regime. However, the focus on genocide perpetrated only against minority groups, rather than against the Cambodian population as a whole, is at odds with the way the crimes of the Khmer Rouge are framed, both within and outside Cambodia.

Defining Genocide in Cambodia

Domestically, the use of ‘genocide’ to describe the Khmer Rouge’s treatment of the Cambodian population was central to state-building initiatives in the aftermath of the regime. The language of genocide can be traced through commemorative activities, school curricula, and perhaps most starkly in the 1979 trial of Pol Pot and Ieng Sary. This trial adopted a definition of genocide which differed from that of the Genocide Convention, more closely resembling modern understandings of crimes against humanity. 

Understandings of ‘genocide’ as something perpetrated against the entirety of the Cambodian population continue to be prevalent in Cambodia. Indeed, the Khmer language term for genocide, prolai pouch-sas, translates to the elimination of a people or a nation – a definition that seems to reflect many Cambodians’ experiences of the regime.  

My own 2018 research with members of the Cham community suggests that this broader interpretation of genocide is also adopted by members of those groups whose genocide has been legally recognised. Many of my participants hoped the ECCC would recognise their suffering under the Khmer Rouge. However, they rarely drew distinctions between their experience and that of the Khmer Buddhist majority, and indeed often emphasised ‘everyone had suffered’.

The ECCC’s legal framing of genocide is markedly different from these social and historical understandings. Following some debate during the Court’s establishment, the ECCC chose to adopt the narrower interpretation of genocide as outlined in the Genocide Convention. As one international judge explained to Stephanie Giry in 2014, this required a protected group to be identified, “and that group cannot be the quasi entirety of the population – otherwise the notion no longer makes sense.”

The narrow focus on two minority groups was the subject of a ‘Separate Opinion on Genocide’ by Judge You Ottara, following the conviction of Nuon Chea and Khieu Samphan in 2018. In his opinion, Judge Ottara critiqued the ECCC’s ‘overly formalistic, and entirely unrealistic, approach to the definition and identification of genocides’. While Judge Ottara did not reach conclusions on the facts, he argued that the ECCC could have ‘considered, for example, whether persons who were targeted for destruction were essential to the survival of the Cambodian national group as it existed in 1975’. 

Genocide Recognition in Popular Discourse

While the ECCC’s approach to genocide has been critiqued, it is also worth noting the tendency among some Khmer communities to still see the ECCC as a vindication of their experiences of ‘genocide’, regardless of the framing of its legal judgments. An initial review of Khmer-language media reporting in the aftermath of Khieu Samphan’s appeal judgment reveals that the legal limitation of the genocide conviction to crimes perpetrated against the Vietnamese is not always made clear.  Indeed, as the legal process has been ‘translated’ for public audiences through media and outreach, it may be that the symbolism of guilty verdicts carries more importance than the technical detail of the content of a judgment.

Nevertheless, as Judge Ottara concludes: ‘If it had been proved that the Khmer Rouge intended to purify Cambodia by intentionally destroying a substantial part of the Cambodian national group, both in terms of numbers and the qualitative features of the society – its religion, leaders and the political, social and cultural features which (and this is the crucial point) defined the national group between 17 April 1975 and 6 January 1979 – the ECCC might have been able to give to such deaths and destruction their proper meaning.’