An important judicial opinion was issued late last month by a Cambodian judge of the ECCC Trial Chamber, making a valuable contribution to a debate of international significance. But so far it seems not to have been noticed by observers and journalists who normally follow every twist and turn in the ECCC’s process.
Nuon Chea and Khieu Samphan were found guilty of genocide against the Cham and Vietnamese by the ECCC’s Trial Chamber in Case 002/02, but it did not even consider whether genocide was committed against the Cambodian national group. The Co-Prosecutors never proposed such a charge and the Co-Investigating Judges dismissed a 2010 request by the Civil Parties to do so.
A summary of the Trial Chamber judgment was delivered in November 2018, but it was not until March 28 that the full written judgment has been published, and appended to it is “Judge You Ottara’s Separate Opinion on Genocide (prolai pouch-sas)”, in which he expresses the view that “the resulting approach which the Trial Chamber has necessarily followed is much too narrow…. in my view there would have been a clear basis to examine the broader context of events in Cambodia between April 17,1975 and January 6, 1979, in particular whether there existed an intention to destroy a substantial part of the very fabric of the Cambodian national group as it then existed.”
This question has attracted intense scholarly and legal debate for decades. In Cambodia the crimes of the Khmer Rouge have been characterised since 1978 as genocide by Renakse (the National Salvation Front), by all subsequent governments and widely in common usage. Outside Cambodia, too, the term genocide has been used in countless journalistic and scholarly reports and in political and legal campaigns to seek accountability, as well as the extensive research and documentation Cambodian Genocide Program.
By contrast, a number of legal commentators and scholars have asserted that the crimes against the Khmer or Cambodian national group might not be prosecutable under the Genocide Convention, in light of its narrow legal definitions of the crime. The Genocide Convention has generally been interpreted as applying only to acts committed on one protected group by another group, and therefore, it has been argued, does not apply in Cambodia’s case.
However, the Group of Experts established by the Secretary-General of the UN in 1997 to look into the possibility of prosecuting the crimes of the Khmer Rouge, while concluding that ‘evidence suggests the need for prosecutors to investigate the commission of genocide against the Cham, Vietnamese and other minority groups, and the Buddhist monkhood’, took an agnostic position on genocide against the Khmer national group, stating that ‘any tribunal will have to address this question should Khmer Rouge officials be charged with genocide against [them]’.
Even though the ECCC Co-Prosecutors and Trial Chamber shied away from taking up this invitation, in recent years, a considerable number of national courts, especially in Argentina and other countries of South America, have tried and indeed issued convictions for genocide committed against a part of the national group by perpetrators from the same nation. Judge Ottara joins these judges and other jurists and scholars in insisting that the Genocide Convention makes no such restriction, saying “I do not discern from Article 2 any requirement that perpetrators and victims of genocide must be from entirely distinct groups”.
Judge Ottara concludes by saying: “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.”
While this question was not adjudicated at the ECCC, it will doubtless be debated intensely at the forthcoming conference of the International Association of Genocide Scholars, to be held in Phnom Penh July 14-19, 2019. See www.iags2019.com for details.
Dr Helen Jarvis is the co-author (with Tom Fawthrop) of the book ‘Getting away with genocide? Elusive justice and the Khmer Rouge Trials’. She was formerly Chief of Public Affairs and of the Victims Support Section of the ECCC, but writes this commentary entirely in her personal capacity.