GENOCIDE charges have been issued against Nuon Chea and Ieng Sary, a spokesman for the UN-backed Khmer Rouge tribunal said Wednesday, marking the first time that former regime leaders have faced the charge in an internationally sanctioned court.
The charge stems from crimes specifically targeting Vietnamese – both in Prey Veng and Svay Rieng provinces, and during border incursions into Vietnam – and the Cham Muslim minority group, UN court spokesman Lars Olsen said, adding that the two men and their lawyers were notified of the charges in meetings earlier this week.
Prosecutors in September requested that co-investigating judges clarify the charges against the five regime leaders being held at the tribunal, including Tuol Sleng prison chief Kaing Guek Eav, alias Duch, whose trial ended in November and is awaiting a verdict.
Meetings with Khmer Rouge head of state Khieu Samphan and social action minister Ieng Thirith are set for the end of this week and the beginning of next week, Olsen said.
Ieng Sary and Nuon Chea had previously been charged with crimes against humanity and grave breaches of the Geneva Conventions. They learned in the meetings this week that they would also be charged with homicide, torture and religious persecution under the 1956 Cambodian penal code, which was in effect during the regime.
Researchers and scholars have long debated whether any of the atrocities committed by the Khmer Rouge constituted genocide, the legal definition of which requires that criminal acts be committed “with intent to destroy, in whole or in part, a national, ethnical, racial or religious group”.
Olsen said Wednesday that the killing of an estimated 1.7 million Cambodians during the regime did not qualify as genocide. “When you have members of the same national and ethnical group committing these types of crimes against other members of the same group, it simply does not fall within the legal meaning of genocide,” he said.
From the Khmer Rouge tribunal, Khmer Rouge foreign minister Ieng Sary (left) and Brother No 2 Nuon Chea. AFP
I don't think you can find any proof.... the intent issue is the key thing, and you can’t get the smoking gun."
But Youk Chhang, director of the Documentation Center of Cambodia, said many Cambodian survivors reflexively use the term to describe all Khmer Rouge killings. He expressed approval that genocide charges had been issued in connection with campaigns that targeted the Vietnamese and Cham Muslims.
“By having charged the crime of genocide against Ieng Sary and Nuon Chea, the court is not only doing its own job – it is also making the survivors more likely to support the process,” he said.
Between 100,000 and 400,000 Cham Muslims died at the hands of the regime, he said, adding that it is unclear how many Vietnamese were killed.
In a recent interview, historian David Chandler said he did not believe crimes committed against either group amounted to genocide.
With respect to the Vietnamese, he said, “I don’t think you can find any proof to pin it down. The intent issue is the key thing, and you can’t get the smoking gun.”
Similarly, the evidence for crimes against the Chams “isn’t really as conclusive as it should be for genocide”.
“Certainly there was harsh behaviour on some of the Cham sites, and that’s documented,” he said.
“But it’s just a cuckoo word to use. That’s not genocide. That’s sadism. And it’s vicious, and it’s inexcusable. But it’s not genocide.”
Lawyers for Nuon Chea and Ieng Sary said they were not surprised judges had opted to bring the charge against their clients.
“We have always been expecting that the [co-investigating judges] would go forward on genocide,” said Michael Karnavas, Ieng Sary’s international co-lawyer. “That said, I should stress that we believe the OCIJ has not been terribly responsive in conducting a fair investigation, and we have found in many instances the legal reasoning coming out of the OCIJ to be less than acceptable for an institution that is heavily supported by internationals.”
Andrew Ianuzzi, a legal consultant for Nuon Chea, said he was “not a bit surprised that OCIJ is sticking closely to the prosecution’s version of events”.
Deputy international co-prosecutor William Smith declined to comment at length, saying that the final decision on genocide charges “can only be made after the investigation is closed and a full and thorough analysis of it has been conducted”.
Olsen noted that no decision has been made on whether the four leaders awaiting trial will be indicted, let alone on what charges they might face. The investigation for the tribunal’s second case is expected to conclude within the next few weeks, he said.