The second phase of the trials of former Khmer Rouge leaders, Nuon Chea and Khieu Samphan, in the Extraordinary Chambers in the Courts of Cambodia (ECCC) began on October 17. Due to the age of the perpetrators and the immensity of the number of charges, the ECCC decided to break up the Khmer Rouge trials into smaller sections to assure that at least some decisions are made before the perpetrators die. The first phase focused on crimes against humanity. Both defendants were given life sentences in August for their participation in the forced transfer of citizens from Phnom Penh and the executions of Lon Nol Soldiers at Tuol Po Chrey.[1] The recently opened phase will focus on genocide accusations. Many see this stage as an opportunity for the court to provide justice and closure to families of victims of the Khmer Rouge regime.
Genocide is defined by the UN Convention on the Prevention and Punishment of the Crime of Genocide and similarly in article 6 of the International Criminal Court's Rome Statute as "any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: killing members of the group; causing serious bodily or mental harm to members of the group; deliberately inflicting on the group conditions of life, calculated to bring about its physical destruction in whole or in part; imposing measures intended to prevent births within the group; [and] forcibly transferring children of the group to another group."[2]
The genocide accusations in the ECCC trial focus on the killing of ethnic Cham Muslims and Vietnamese.[3] The Khmer Rouge sought to establish a rural, classless society with an ethnically "pure" population, and the Cham and Vietnamese stood in the way of this goal because they did not fit Pol Pot's vision of the ideal Cambodia. Victims were executed, but also sometimes exterminated through overwork and starvation. All minority ethnic groups were seen as a direct threat to the Khmer Rouge's idea of a “new Cambodia,” and thus the regime set out with the intent to eliminate them.
While the extermination of minority ethnic groups seems obviously fitting of the label "genocide," some scholars argue that the focus of the ECCC on minority ethnic groups subjected to genocide ignores a huge segment of the victims, namely the Khmer population. The Khmer are the largest ethnic group of Cambodia and an estimated 1.3 million were killed during Pol Pot's reign. This compares to estimates of 100,000 Cham deaths and 20,000 Vietnamese deaths. The genocide charges at the ECCC only accuse Nuon Chea and Khieu Samphan of a huge minority of the genocide of which they are believed to have been key players.[4]
The vast majority of the Khmer Rouge's victims will not be able to get redress from the second phase of the trial. The reason the Khmer are being forgotten is because the legal definition of genocide does not include extermination on the basis of political ideology. The entire Khmer population was forced to move from cities to work in the rural areas of Cambodia, but was allowed to survive if they cooperated with the regime's utopian experiment. The Khmer who were killed were mainly political dissidents and thus fall outside the reach of the definition of genocide.
When the genocide convention was ratified in 1948, UN members made covert deals covert deals to exclude the protection of political groups, because members feared their violent suppression of political dissidents within their own could be construed as genocide and prompt international interference.[5] The result is that the genocide convention and legal definitions created since are quite narrow in which groups are protected. The international anti-genocide regime's goal to end genocide entirely is being undermined by technicalities in these legal definitions.
The issue in the Cambodian case is not that Nuon Chea and Khieu Samphan will escape punishment; in fact, they have already received maximum sentences. But the exclusion of the vast majority of victims severely damages the rebuilding and healing process in Cambodia where 1 in 5 ethnic Khmer was killed during the Khmer Rouge's regime and the atrocities touched the lives in some way of every Cambodian alive today. The ECCC is the first ad hoc tribunal established with the purpose of providing "moral and collective reparation" to victims and was created with the explicit intent to bring justice and provide a forum for victims.[6] The genocide definition significantly hinders full reconciliation and closure for the people and the country.
A genocide conviction will surely bring relief and resolution to many people in Cambodia and the world at large, but many will also feel cheated because the legal system will have denied ethnic Khmer legitimate use of the term genocide to describe what happened to their people decades ago.
[1] "Case 002: Two Senior Leaders of the Khmer Rouge." CJA : Case 002. N.p., n.d. Web. 25 Oct. 2014.
[2] Article 2. Convention on the Prevention and Punishment of the Crime of Genocide. 1948
[3] "Khmer Rouge Genocide Trial Resumes in Cambodia." The Guardian. Agence French-Presse, 17 Oct. 2014. Web
[4] Giry, Stephanie. "The Genocide That Wasn't." The Genocide That Wasn’t by Stéphanie Giry. NY Review of Books, 25 Aug. 2014. Web. 25 Oct. 2014.
[5] Eng, By Kok-Thay. "Redefining Genocide." (2014): n. pag. Genocide Watch. Web.
[6] "Moral and Collective Reparation." ECCC. N.p., n.d. Web.