By William Reed
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.
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