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The complexities of genocide

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Charges of bias against KR tribunal officials distract from the broader issues of justice and verge on defamation.

Photo by: TRACEY SHELTON
Remains of victims of the Khmer Rouge on display at Choeung Ek killing fields during the Day of Anger commemoration in May.

It is understandable that defence lawyers at the Khmer Rouge tribunal will look for every angle and every loophole to gain an acquittal.

Indeed, it is good to see that here is one trial happening in Cambodia where the rights of the accused to a fair trial are being fully respected.

However, in their efforts to pillory the credentials of my co-author Helen Jarvis - the newly appointed head of the ECCC's Victims Unit - by citing our book Getting Away with Genocide?: Elusive Justice and the Khmer Rouge Tribunal as evidence of bias, they appear to have abandoned the most minimal standards of research and fact-checking, and do a disservice to the court.

In a letter dated June 4 and addressed to the court's deputy director of administration, Knut Rosandhaug, the defence team led by Michael Karnavas argues that the use of the word "genocide" in our book calls into question Jarvis's "absolute impartiality and strongly implies that Dr Jarvis has preconceptions about the alleged crimes" - namely, that they constituted genocide.

If these highly paid defence lawyers had taken the trouble to read our book, they would have found within it an introductory discussion on the use of the word genocide.

In that introduction, on page 4, we address several problematic subjects, such as how many Cambodians died, whether their deaths were the result of genocide, and several other issues.

We carefully explained that we used the "G-word" - genocide - not as a precise legal term but in the sociological sense of common usage, rather than as a legally defined crime.

The Khmer Rouge Tribunal, edited by John Ciorciari and published by the Documentation Centre of Cambodia, makes the same point.

"Genocide, the crime of crimes, has become closely associated with Democratic Kampuchea in the popular lexicon. Countless historians, lawyers, journalists, and human rights organizations have referred to the Khmer Rouge regime as 'genocidal'"(page 24).

Ever since 1979 and the ouster of the Pol Pot regime, genocide edged its way into the vocabulary of how Cambodians viewed the depth of their suffering.

From Cambodia to Rwanda and many other places, genocide became synonymous with the most heinous crimes even if, in law, the classification "crimes against humanity" was often a more accurate indictment and easier to prove.

Throughout the 1980s, Cambodian government and society routinely referred to the "genocidal regime".

It was also invoked by the prosecution in the 1979 Peoples Revolutionary Tribunal and used by Cambodian survivors in the US.

In Cambodian language, they used the phrase pro lai puoch sars, and this has always corresponded to 'genocide' in English translation.
Our book, therefore, accurately reflects that populist terminology and legitimacy that transcends any legal debate as to whether the mass crimes committed in Cambodia from 1975-79 actually constituted genocide according to international law.

In fact, in chapter 11 of Getting Away with Genocide? , titled "Clinching Convictions: The Challenge for the Prosecution", we deal with legal issues, and Jarvis specifically addresses the problems of proving that genocide had been committed.

But again, it appears that the defence lawyers have failed to do their homework and have never read the very passages that totally disprove their absurd claims against my co-author.

The Phnom Penh Post reported [June 8, 2009] that Andrew Inuazzi, a legal consultant for Nuon Chea's defence team, said he "absolutely" agreed with the position articulated by Ang Udom and Michael Karnavas, Ieng Sary's international co-lawyers, adding: " Certainly, it sounds like she has made up her mind about the fact of a genocide."

But in the same article he admitted that he had never read the book. It is not Ms Jarvis that has " made up her mind about the fact of a genocide" as he alleges, but rather Mr Inuazzi who has made up his mind about what the our book has to say about genocide, without even bothering to read it!

To make serious allegations and judgments about an author without ever having read the book in the first place is not the kind of international legal standard you expect to come from counsel in such an important tribunal.

Furthermore, as all lawyers should know, if they have misrepresented both the authors and the contents of a book, they have left themselves open to the charge of defamation. As one of the co-authors, I look forward to an apology from the lawyers involved on two grounds.

First, they misrepresented the views of the authors and the contents of the book they so publicly criticised.

Second, they failed to read the book in question, which they misused in their barrage of attacks on Dr Helen Jarvis.

It is regrettable that so much media attention has been deflected away from the more important aspects of the tribunal by these peripheral issues and pseudo-controversies.

Tom Fawthrop has covered Cambodia since 1979 for the BBC, The Guardian and others, and is an independent documentary filmmaker.

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