I n his recent letter (Post, December 2), Alex Hinton states that in the planned Khmer Rouge Tribunal, "a court of law will pass judgment on whether or not genocide was perpetrated in Democratic Kampuchea."

In fact, whether or not a charge of genocide is brought against any defendant at a Khmer Rouge Tribunal is a decision to be made by the prosecution.

The ongoing debate concerning whether or not "genocide," within the strict, limited definition of the Genocide Convention, was committed during the Khmer Rouge regime tends to indicate that this is by no means a foregone conclusion.

In any event, good arguments can be made supporting a decision not to bring charges of genocide at a Khmer Rouge Tribunal, even if a particular subset of Khmer Rouge atrocities might arguably fall within that legal classification.

There are two meanings to the term "genocide." The general public would have no difficulty identifying the mass murder of persons based upon their political beliefs as an act of "genocide." Thus people speak, quite correctly, of the "Cambodian Genocide."

As Hinton points out, this broad definition of "genocide" was not incorporated into the Genocide Convention.

In effect and simply put, the framers of the Genocide Convention selected from the broader, pre-existing categories of mass murder that already constituted crimes against humanity (itself a product of customary international law rather than treaty law) only those forms of mass murder that were politically acceptable to the convention delegates.

Political mass murder was not acceptable to the Soviet bloc for the simple reason that the communists had employed it to get and keep power.

That this political compromise resulted in political mass murder being excluded from the Convention definition of "genocide" in no way reduces the heinousness of political mass murder vis-à-vis those categories of mass murder that were included in the Genocide Convention.

Given this fact, I cannot understand why Hinton would suggest that "assessing whether or not (the crimes of the Khmer Rouge) were genocide is important... on a symbolic level to acknowledge the extremity of Democratic Kampuchea."

This suggestion perpetuates the misconception that an instance of mass murder falling within the limited Convention definition of genocide is ipso facto more heinous than those instances of mass murder (eg political mass murder) that Hinton acknowledges were omitted from the Convention definition of "genocide" for purely political reasons.

Mass murder constituting a crime against humanity is as heinous and "extreme" a criminal act as mass murder constituting genocide.

Therefore, whether or not charges pursuant to the Genocide Convention are brought or proven at the planned Khmer Rouge Tribunal should have no relevance, symbolic or otherwise, respecting the gravity of the crimes committed under the Khmer Rouge regime.

This is a point that the media needs to understand, given the important role it will play in explaining the Khmer Rouge Tribunal process to the public.

Raymund Johansen - Phnom Penh