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Logo of Phnom Penh Post newspaper Phnom Penh Post - Genocide: by the law, not by emotion

Genocide: by the law, not by emotion

M anager of the Cambodian Genocide Program

BOTH in Cambodia and among

Khmer of the Cambodian diaspora abroad, when Cambodians discuss genocide in

Cambodia, the word "genocide" is sometimes translated from French or English

into the Khmer language as "killing the Cambodians."

This is a clear and

concise definition from the point of view of those who suffered the horrors of

the Pol Pot regime.

It is what one might call the "Cambodian cultural

definition" of genocide.

Thus, for many Cambodians, it is self-evident that

the Pol Pot regime committed "genocide" against the Cambodian people, because

the Pol Pot regime did kill a million or more of their relatives and loved

ones.

No one disputes the fact that very many Cambodians lost their lives

during the Pol Pot time, under unjust circumstances, and that this was, or

should be, a crime.

The word, "genocide," was invented after World War II

to describe what happened to the Jews of Europe under Nazi Germany. It was

intended to describe an attempt to destroy an entire people, in that case, all

European Jews.

This word was subsequently enshrined in international law,

in the 1948 Convention on the Prevention and Punishment of the Crime of

Genocide, or the Genocide Convention.

 

The Genocide Convention gives a very specific definition of genocide, and

this is the "legal" definition of the word. According to the Genocide

Convention, "genocide means any of the following acts committed with intent to

destroy, in whole or in part, a national, ethnical, racial or religious group,

as such: a) killing members of the group; b) causing serious bodily or mental

harm to members of the group; c) deliberately inflicting on the group conditions

of life calculated to bring about its physical destruction in whole or in part;

d) imposing measures intended to prevent births within the group; and e)

forcibly transferring children of the group to another group."

There are three key concepts in this legal definition of genocide. First,

there is the idea of a "protected group." There are four kinds of groups which

are protected under the genocide convention: national, ethnical, racial and

religious groups. Other kinds of groups, for example political groups, are not

protected under the Genocide Convention. Thus, although some people argue that

the killing of intellectuals, or Lon Nol supporters, under the Pol Pot regime

was genocide, in fact, however, neither intellectuals nor Lon Nol supporters by

themselves qualify as a national, ethnical, racial or religious group.

The second key concept in the legal definition of genocide is "prohibited

acts." The most obvious of the prohibited acts is simply to kill the members of

the group. The four other categories of prohibited acts listed above are part of

the definition because all of these methods might also be used to bring about

the destruction of a protected group.

Finally, the third key concept in the definition of genocide is the question

of "intent." Was there an intention to destroy the group? Intent can be

difficult to prove, because intent is something that is inside someone's mind.

However, by establishing a pattern of behavior, or by refering to verbal or

written statements, one can infer intent.

For example, the Democratic

Kampuchea slogan, "one against 30," was used on DK radio to popularize the idea

that by sacrificing two million soldiers, Cambodia could exterminate sixty

million Vietnamese.

This kind of statement might form part of a pattern

demonstrating intent to commit genocide.

There are some ambiguous phrases in

the legal definition of genocide, and one of them is particularly troubling: "in

whole or in part." One person is a "part." Does that mean that if a criminal

intended to kill all the members of a protected group, but succeeding in killing

only one single member of that group, that this single killing could constitute

genocide?

Most legal scholars seem to think that this extreme case would

not qualify as genocide.

But where does one draw the line? How many

members of a group must be killed before those acts rise above the threshhold of

the definition of genocide?

There is no clear answer to that question,

because there have been very few actual prosecutions for the crime of genocide,

and so we do not know how judges and courts would interpret this phrase in

practice.

Lawyers would say there is no body of "case law" on

genocide.

Thus, when teaching about genocide, scholars sometimes describe

a "three point test" to determine if genocide has been committed: a protected

group; prohibited acts; and intent to destroy the group.

All three

criteria must be met in order for a particular crime to qualify under the

definition of the crime of genocide.

Consider the case of the "Khmer

people" under the Pol Pot regime.

The Khmer people are a national group,

an ethnic group, and perhaps also a racial group. Clearly the first criterion is

met. It is also clear that some of the prohibited acts were perpetrated against

the Khmer people: for example, obviously many members of this group were killed.

But was there intent to destroy the group as a whole? Very few people

argue that the Khmer Rouge intended to destroy the entire Khmer race.

Did the Khmer Rouge regime kill a sufficient number of Khmer people to

qualify as "in part," and for those acts to therefore constitute genocide?

This is a difficult question, and at the present time there is no clear

legal answer.

When Cambodians listen to lawyers and scholars talking

about genocide in Cambodia, they often hear talk only of the Vietnamese, the

Chams, the Lao, the Thai, the Chinese, and perhaps the Buddhists who were

killed.

That is because these groups qualify as protected groups under

the genocide law, and there is good evidence that Pol Pot may have intended to

entirely eliminate those groups from Cambodian society by committing prohibited

acts such as killing members of the group.

But when lawyers and scholars

discuss genocide in Cambodia, some of them do not mention all of the Khmers who

died or were killed in the Pol Pot time. Sometimes they will mention only the

Khmers who were Buddhist monks, but not the untold numbers of others who lost

their lives. This angers Cambodians, who sometimes accuse scholars and lawyers

of not caring about the Khmers, only about the Chams, Vietnamese, etc.

This is an emotional reaction, and it is entirely understandable. But it

is not a fair reaction to the lawyers and scholars, who are talking about the

legal definition of genocide, not the Cambodian cultural definition of

genocide.

This does not mean that the lawyers and scholars do not care

about the Khmers who lost their lives in the Pol Pot time. It simply means that,

legally, it is unclear whether or not most of the Khmer deaths in Democratic

Kampuchea meet the criteria laid out in the Genocide Convention.

It does

not mean that no crime was committed. Killings of massive numbers of Cambodians

may in fact constitute a crime against humanity.

"Crimes Against

Humanity" is another extremely serious category of criminal human rights

abuse.

In international law, crimes against humanity are distinguished

from mere domestic crimes by virtue of their "scope," or their "mass nature."

Mass nature is defined by two criteria: 1) a large number of victims; and/or 2)

a systematic state policy.

In addition to having the character of a mass

nature, in order to qualify under international law as crimes against humanity,

it must be shown that the targeted groups - social groups, political groups,

racial groups, religious groups, or other groups - were targeted for mass murder

because of their status as a group.

Examples of this in Cambodia during

the Pol Pot time might be "New People," the Buddhist monks, Chams, or possibly

even residents of the Eastern Zone.

There are many different types of

abuses which qualify as crimes against humanity.

The following acts,

when conforming with the above criteria, are crimes against humanity: 1)murder

and extermination; 2) enslavement and forced labor; 3) deportation outside of

the country; 4) imprisonment without due process of law; 5) torture; 6) rape; 7)

"inhuman acts," including: a) medical experimentation; b) mutilation; c) food

deprivation; d) sterilization; e) violation of cadavers; f) other serious mental

or physical harm; 8) persecution, including: a)removal of children from school;

b) forced wearing of distinctive clothing; c) closure of religious institutions;

d) banning of religious leaders; 9) property crimes, including: a) destruction

and plunder of private property (e.g., homes, cars); b) destruction and plunder

of cultural property (e.g., mosques, holy books).

Those who survived the

Pol Pot time will probably recognize many things that they experienced in this

list of acts which constitute crimes against humanity.

In addition to

genocide and crimes against humanity, another grave category of international

human rights violations is war crimes.

Although the laws of war are very

complicated and lengthy, many of the protections provided by the laws of war are

summarized in Common Article 3 of the Geneva Conventions of 1949. Common Article

3 says, "Persons taking no active part in the hostilities, including members of

the armed forces who have laid down their arms and those placed (outside of

combat) by sickness, wounds, detention or any other cause, shall in all

circumstances be treated humanely..."

In other words, according to the

laws of war, civilians and captured or wounded soldiers must not be

harmed.

Common Article 3 applies both in the case of international war

and in the case of civil war.

It is clear from the records left behind at

Tuol Sleng that the Pol Pot regime violated the laws of war.

They

tortured and killed soldiers captured in civil war - i.e., in the conflict

between the Party Center and the Eastern Zone - and they tortured and killed

soldiers captured in international war - i.e. in the war with

Vietnam.

Virtually all of the legal scholars who have studied the events

of the Pol Pot regime have come to the conclusion that genocide, crimes against

humanity, and war crimes were committed by that regime.

Not all of those

killed qualify as victims of genocide under the legal definition of that

concept. Not all of those killed qualify as victims of crimes against humanity.

Likewise, not all of the victims qualify as victims of war crimes. But it is

clear that all three of these categories of crimes were perpetrated upon the

peoples of Cambodia by the Pol Pot regime.

Genocide, crimes against

humanity, and war crimes have emerged as concepts over the course of the last

one hundred years as ways to describe, to condemn, to punish and, hopefully, to

prevent the most heinous, terrible acts that human beings can inflict upon

humanity.

Almost everyone who understands the content of these laws and

who has examined their application to the Pol Pot regime agrees that Pol Pot and

his fellow leaders of the Khmer Rouge - Nuon Chea, Mok, Khieu Samphan, Ieng

Sary, Ieng Thirith, Son Sen, Ke Pauk and Yun Yat - should be found guilty of

committing these most heinous of crimes.

These Khmer Rouge leaders are

the very same individuals who today continue to lead the Khmer Rouge in making

war against the new Cambodian democracy, and who continue to commit the most

heinous criminal acts of which the human imagination is capable.

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