Debate on Genocide

RANDOM THOUGHTS ON SCHABAS-STANTON-JOHANSEN

Searching for the truth. Number 25. January 2002.

Magazine of Documentation Center of Cambodia (Khmer version).

By Suzannah Linton

The debates about jurisdiction over genocide are ‘academic’ and irrelevant

I do not agree.  The issue of jurisdiction is highly relevant, and is properly to be determined by the Extraordinary Chambers.  One of the reasons why it is so important is the fundamental principle of criminal justice that prohibits someone from being convicted of something that was not a crime under the relevant law at the time it was committed. This is a particular issue in judicial processes that attempt to bring justice to historical atrocities as the legal situation is confused and does need to be clarified if there is to be a fair process.

The preceding debates on whether the Genocide Convention applies in Cambodia or not are between someone taking an objective view, reading the law as it is and testing what happened in Cambodia against that and someone who attempts to make the situation fit into the law or vice versa.  Both are well-intentioned and I sympathise.  However, I do believe the principled objective approach taken by Professor Schabas is the correct one.  If that is what the law said at the time the acts were perpetrated, we are stuck with it.  Attempts at clever lawyering become artificial even dishonest after a while.  The convention has obvious cracks and the Khmer Rouge practice of killing off their own people, called auto-genocide by some, has indeed hit a ‘blind spot’.  I would have liked to see this discussion underpinned by a more constructive examination of the reasons why the drafters excluded certain groups from protection and whether we need to consider changes to the Genocide Convention in light of its inherent limitations. 

One of the writers seems to assume that the selection of the subject matter jurisdiction for the KR tribunal (genocide, crimes against humanity etc) means a decision has been taken that these things happened in Cambodia and it is just a matter of deciding if the accused did what he is accused of.  I disagree, even though I recognise that the drafters do impose a certain understanding of the situation upon the court (eg. by limiting war crimes to grave breaches of the Geneva Conventions they appear to have decided there was an international armed conflict).  The accused may still challenge the jurisdiction, for example on the ground that at the time of the offence, such an act was not a crime and not prosecutable.  The role of the court is to decide, on the basis of evidence submitted by the parties, whether the wider as well as the specific elements are satisfied.  For example when looking at the grave breach provisions, it will have to decide whether 1. There was an armed conflict 2. That armed was international 3.  Whether the Geneva Conventions applied 4. Whether the legal elements of a grave
breach are satisfied (victim was protected person or property, accused sufficiently linked to a party to the conflict etc).  Likewise, the prosecution will have to prove genocide happened in Cambodia and then, and that an accused’s acts were genocidal.

The origins of the notion of genocide and crimes against humanity

I agree that the nexus to an armed conflict in the crimes against humanity definition in the IMT Charter was artificial.  Without the link to an armed conflict (when the laws of war would apply and on which there was less controversy), many of the crimes committed in the Second World War would have been considered to be within the domestic jurisdiction of the German Reich and nobody else’s business.  As it was, the charges on the Holocaust were a minor part of the case against the leadership at the Nuremburg International Military Tribunal.  The link to the armed conflict made it the business of other States and thus enabled the crimes to be prosecuted by States who would otherwise be violating that cardinal principle of domestic sovereignty.  It has long been acknowledged that this nexus between crimes against humanity and either crimes against peace or war crimes, was peculiar to the jurisdiction of the Nuremberg Tribunal. It disappeared from the definition contained in Article II(1)(c) of Control Council Law No. 10 and has come to be abandoned in customary international law (the ICTY Statute’s definition of crimes against humanity is recognized, even in its own jurisprudence, as being out of line with custom). 

If one sees genocide as a species of crime against humanity, it is not irrelevant that back in 1948 already, the crime was not seen as having a nexus to an armed conflict.   It would seem that by 1975 the nexus was not a characteristic of the crime against humanity in customary international law, as evidenced by State practice and opinio juris.  But Professor Schabas is right in that somewhere between 1945 and 1993, the nexus disappeared. It will be for the Extraordinary Chambers to decide whether it was still a legal element of the crime against humanity in the period 1975 – 1979.  So there seems to me to be no point in getting too hung up about this or the reason why the nexus was present in the IMT Charter.

Technically, genocide as a legal prohibition only came into existence in International Law with the Genocide Convention and was first successfully prosecuted in an international tribunal at the International Criminal Tribunal for Rwanda (Akayesu).  Its definition was settled at a time before the Cold War hardened positions and when the world was still struggling to comprehend the enormity of Nazi atrocities and determined to prevent its recurrence.  Genocide is founded in the concept of the killing of a people, what occurred during the Holocaust.  One has to be careful with linking genocide too tightly to the IMT Charter and Judgement although it clearly has its roots in the notion of the crime against humanity and the evolution of criminal responsibility for acts of extreme brutality committed in armed conflict.  I wouldn’t call the Convention definition political, but rather one that arose directly from the experiences of the war and reflected the realities of the time.  What we should be looking at is whether the time is right to reconsider the convention.

International Criminal Law is usurping the jurisdiction of domestic courts

Underlying the arguments here seems to be a belief that the International Community is falling over itself to ‘steal’ the jurisdiction of domestic courts.  Not so.  The sorry record of post-Nuremburg justice reveals a reality of indifference and failure to act even in the face of the most egregious crimes.  Only two ad-hoc international criminal tribunals have been created by the Security Council, and both acknowledge the role of domestic courts even if they have precedence should they choose to exercise jurisdiction.  Neither the ICTY nor ICTR have precluded domestic trials under domestic law – in Bosnia there is a scheme called ‘Rules of the Road’ whereby the Prosecutors office approves cases for domestic trial (the Bosnian Penal Code recognises war crimes etc).  Rwanda’s prisons are notoriously packed with persons awaiting trial in domestic courts.  There is to date just one functioning hybrid ‘internationalised domestic tribunal’, that of East Timor, and it is located in the District Court of Dili.  The ICC is structured on the concept of complementarity: domestic courts are the first port of call.  If those courts are unable or unwilling to fulfill their international obligations, and subject to the terms of the Statute, the ICC is able to exercise its jurisdiction.

I think the September 11 attacks are what has really motivated Raymund’s article. Calls for such serious crimes to be dealt with in an international arena will always be stronger when there is concern about the inability or unwillingness of the State to fulfill its legal responsibilities in domestic law.  No one is denying that the US has jurisdiction and the right to try those involved in the horrendous attacks.  But, irrespective of the high quality of its courts and judges, there needs to be some understanding of what the wider world is thinking and why even objective observers could be inclined towards some form of international tribunal for Bin Laden and his associates.  America and so many of its institutions have demonised the man and as a result he has been convicted in the public mind.  Many Moslem nations are convinced that America is persecuting Moslems and will take revenge by punishing those Afghanis who simply defended their country from attack.  One need only switch on CNN and listen to its journalists, American leaders and the public at large to get a sense of why some may feel there could be genuine problems of fair trial in the USA.

Are genocide and crimes against humanity more serious than domestic
crimes?

I agree that that mass murder is and will always be a violation of domestic law.  That is why domestic law is in the Law on Extraordinary Chambers; it is also there as recognition of national sovereignty, and to act as a ‘fall-back’ should the prosecution not be able to prove international crimes.  But the question is whether some crimes are so awful that they are considered as a separate class of crime and can fall to be tried by States or international judicial bodies.

One contributor finds the notion that crimes against humanity and genocide are more serious than domestic crimes to be offensive.  He suggests that it is legal experts and the like who have arbitrarily come up with the notion that some crimes are more serious than others.  There has for a very long time existed a notion that certain crimes are so shocking to the conscience of mankind as to transcend the traditional boundaries of State sovereignty and engage the responsibilities of the entire international community.  There are plenty of examples to evidence this.  Humanitarian intervention arose as a response to gross violations of human rights committed in the Christian lands occupied by the Ottomans, and State sovereignty was subordinated, if temporarily.  After WWI, there were attempts at crimes against humanity prosecutions in Turkey for the massacres of Armenians, but these were eventually abandoned.  There were the post World War II cases, in particular the International Military Tribunal at Nuremburg prosecuting for crimes against peace, war crimes and crimes against humanity.  The Genocide Convention and Geneva Conventions of 1949 came later.  There should be no doubt that it is International Law, borne out in the practice of States and opinio juris, that regards certain crimes as particularly serious and deserving of the attention of the international community, and not the arbitrary Ivory Tower musings of certain academics.

So, what is an international crime?  A crime that is so serious that it goes beyond an ordinary domestic crime.  It is usually subject to a legal definition set out in customary international law or treaty – terrorism is admittedly a crime with no common agreed definition, for as has been repeated many a time, one man’s terrorist is another man’s freedom fighter.  International crimes are so serious as to trigger certain legal consequences for States.  One of those is universal jurisdiction.  When international crimes such as genocide, crimes against humanity and war crimes are perpetrated, all States (including the State where the crime happened) are obliged to investigate, prosecute and punish suspects within their jurisdiction in relation to that crime or extradite such persons to another State to stand trial.  An aggressive interpretation of this basic concept allows States keen to ‘do their part’ by actually hunting down suspects in countries that aren’t doing anything.  The person accused of an international crime can be arrested and prosecuted by any State; in fact, there is a legal obligation upon States to take action.  This does not occur for ordinary murder, even mass murder, which is premised on the understanding that the accused will be tried in the State with jurisdiction, and getting hold of the accused will be governed by rules on inter-state cooperation in crime prevention and extradition laws.  The situation is now complicated by international legal bodies such as ad-hoc criminal tribunals to which one cannot extradite, but can simply ‘transfer’ someone to stand trial.  Be that as it may, it should be clear that these bodies do not exclude the exercise of jurisdiction by national courts.

It is not true that international justice means that we are moving towards an international adjudication of crimes and will do away with domestic jurisdiction.  It means that States have to comply with their obligations to each other to contribute to the maintenance of international peace and security by using their domestic law to repress these very serious crimes.   The international judicial bodies come into the picture because of an inability or unwillingness on the part of the State to meet its obligations.  As for the suggestion that international crimes were never meant to be prosecuted in domestic courts, I would draw the writer’s attention to the provisions in the four Geneva Conventions of 1949 about how States Parties are required to adapt their laws to permit the proper implementation of the enforcement mechanisms – and prosecution is a key tool for ensuring respect for International Humanitarian Law.  Also, I would point out that genocide, crimes against humanity, torture and war crimes are increasingly being prosecuted in domestic courts – for example, Balkan war crimes suspects have been prosecuted not just in the Balkans, but also in domestic courts in Switzerland, Norway, Germany and The Netherlands, just to name a few. The Spanish are famously after General Pinochet; the Belgians have prosecuted suspected genocidaires from Rwanda and are now after Ariel Sharon for the Shabra and Shatila massacres.  I would also stress that domestic law was applied in the occupied zones of Germany - the Canadians used Canadian law and the Brits used the Royal Warrant of 1945 with attached regulations (Control Council Law No. 10 used in the US zone followed the IMT Charter in the main).  German courts applied German law to try German war criminals.  The Israelis used a domestic law to try the kidnapped Adolf Eichmann.

The hierarchy of international crimes

This is a touchy subject.  Some see a hierarchy that begins with aggression, going down to genocide, crimes against humanity and then war crimes.  Others say it is immoral to enter into a process that looks at how many victims and the degree of suffering caused and creating first and second class crimes.  Some say this notion of a hierarchy is just
not borne out by international jurisprudence. Others say it is.  Some fine debate has taken place on this issue at the ICTY – particularly in relation to whether crimes against humanity are more serious than war crimes.

It may seem an academic issue, but it is in fact important, particularly when the court comes to consider sentencing.

Can an international tribunal use domestic law – can a domestic tribunal
use international law?

As creatures of an international system, international courts and tribunals only apply international law.   They do gain guidance from domestic law in certain situations but do so cautiously as the rules cannot simply be transposed onto the international arena.  The judges of an international court therefore only look at international crimes and yes, that reveals that international crimes are indeed regarded as a special category of crime deserving of a special regime.  But by the time we get to this stage, the situation that led to the crimes being committed will have been a very serious one – usually one that has led to the creation of the court as a measure to restore international peace and security.

An examination of domestic courts trying international crimes reveals that they do in the main examine international law and its jurisprudence in the cases before them. But much depends on the calibre of the judges, and there is always a tendency for them to rely on domestic concepts and provisions as International Criminal Law is still in an evolutionary stage.  What is clear is that growing reliance is being placed on the jurisprudence that has emerged from the ICTR and ICTY when domestic courts process cases involving international crimes. 

There are often complaints about domestic trials of such cases being second-class justice.  Sometimes, they are justified sometimes not.  Subject to how they view the particular institution (for example, the ICTY is not seen as an independent or fair institution by a sizeable number of persons in the Balkans), victims of atrocity would seem to prefer an international process because they see it as a 'better' justice that acknowledges the severity of the harm done to them.  International standards are certainly under the spotlight in an international process and I would suggest that rights are generally well protected in the international judicial process.  If there is a domestic process, it may well be because that is the only way that justice will be done for the victims of atrocity.  Without generalising about the standards of domestic justice, which will vary tremendously, it often comes down to trial in the domestic courts or nothing at all.  International justice is very rare in the scale of things and for those of us who have faith in courts of law as the first port of call for accountability and loosing the bands of evil, the results are not exactly impressive.  How many convictions and acquittals can the ICTY and ICTR show for all the millions of dollars they have cost the world?  Irrespective of all the exciting developments in international jurisprudence, have the tribunals really made a difference where they should have - in the Balkans and Rwanda? Time will be the ultimate judge of that, but if the empirical studies that are on the way show that they do not make a difference, we must radically rethink how we deal with international crimes.

Again, I would stress that that the existence of an international body with jurisdiction does not mean the domestic jurisdiction of the Sovereign state becomes irrelevant.  The international tribunal is usually established in situations where the State is unable or unwilling to do anything to investigate, prosecute and punish.   We are talking about crimes that are universal in nature, that transcend the interest of any one State. In such circumstances, the sovereign rights of States cannot and should not take precedence over the right of the international community to act appropriately as they affect the whole of mankind and shock the conscience of all nations of the world.  This is particularly so when an international tribunal is established by the Security Council under its Chapter VII powers as a response to a threat to international peace and security.  A properly constituted international tribunal could try these crimes on behalf of the international community, but would have to take a considered decision that examines the prospects of trial in the domestic courts, including whether this would accord with international standards of due process and fair trial.

Searching for the truth. Number 24. December 2001.

Magazine of Documentation Center of Cambodia (Khmer version).

INTERNATIONAL CRIMINAL LAW WAS NOT INTENDED TO SUPPLANT DOMESTIC CRIMINAL LAW

By Raymund Johansen

There has been a significant amount of commentary and debate over the question of whether or not the criminal killings and other crimes perpetrated under the Khmer Rouge regime are subject to prosecution as genocide under the 1948 Genocide Convention, or as crimes against humanity pursuant to customary international law, or both, or neither. Given the fact that the proposed Khmer Rouge Tribunal will take place in a domestic Cambodian court where jurisdiction over the subject crimes is not at issue, this debate has been rendered largely academic.

Both "genocide" and "crimes against humanity" are legal rubrics that were developed for the purpose of providing a legal basis for jurisdiction by foreign courts, whether "international" or domestic, over crimes that pursuant to previously unchallenged customary international law were protected from such prosecutions under the doctrine of national sovereignty. In the case of genocide, jurisdiction results from a nation-state’s acceptance of the international convention that defines the crime. In the case of crimes against humanity, an elaborate legal fiction known as the "nexus to armed conflict" requirement was developed by the Nuremberg Tribunal to justify that tribunal’s exercise of jurisdiction over the murder and mistreatment of German citizens by their own government during the Nazi regime. Once a nexus was established between those crimes (which under traditional theories of national sovereignty were only subject to prosecution by a duly constituted German court) and war crimes committed by the Nazis in their wars of aggression, the Nuremberg Tribunal concluded that it would then have an adequate legal basis for extending its jurisdiction to cover them.

The raison d’etre of both genocide and crimes against humanity is the need to establish jurisdiction over the criminal acts sought to be prosecuted. With possible minor exceptions, neither classification made or makes illegal any acts that were or are not already illegal under the laws of every civilized nation. The problem being addressed by both legal rubrics is the lack of political will or ability on the part of a nation-state to provide justice for massive human rights abuses perpetrated within its jurisdiction (or by its citizens within another jurisdiction). In the case of the proposed Khmer Rouge Tribunal, none of these jurisdictional concerns will be at issue. The Tribunal will be a Cambodian trial of those who perpetrated crimes in Cambodia.

As evidence of the fact that these international crimes were never intended to be applied on the domestic level, one can note the absurdity of denying jurisdiction to a domestic, national tribunal over crimes against humanity committed within its jurisdiction on the grounds that those crimes were not perpetrated in connection with an international armed conflict. The only reason this "nexus" requirement for prosecuting crimes against humanity evolved was in response to the need to establish a basis for jurisdiction by an international tribunal. That it can result in denying jurisdiction to the courts of the nation-state where the offenses took place highlights the inapplicability of such international crimes to domestic tribunals, where the underlying criminal acts in question are already illegal. (In any event, it can be noted that pursuant to the enabling law for the Khmer Rouge Tribunal, the extraordinary chambers is granted jurisdiction over all crimes against humanity committed in Cambodia during the subject period. Since the nexus requirement related solely to jurisdiction, and did not constitute a substantive element of crimes against humanity as set forth at Nuremberg, the requirement has no applicability to this domestic tribunal, whether or not it remained in effect at the time.)

The fact that crimes against humanity and genocide were included in the enabling legislation for the Khmer Rouge Tribunal is probably the result of two factors: 1) previous expectations that the Tribunal would be an international one held outside of Cambodian jurisdiction, which scenario would then have necessitated the application of these international crimes in order to establish jurisdiction; and 2) the unfortunate idea, promulgated by many scholars and legal experts, that these particular categories of mass murder are by definition more heinous than others. (While the applicable ten-year statute of limitations under the 1956 Cambodian Penal Code may have provided additional impetus to including these international crimes in the enabling legislation, the law’s extension of that limitations period has addressed this problem.)

In deference to national sovereignty, it was necessary to limit the degree to which extra-territorial personal jurisdiction can be exercised in criminal cases. An unfortunate if entirely predictable result was that those criminal categories considered monstrous enough to permit derogation of national sovereignty were defined in politically and legally circumscribed ways. As a result, unless a particular incidence of mass murder fits within these definitions, its victims are left feeling that they are receiving second-rate justice. The highly abstracted debates concerning whether or not a particular example of organized, mass murder qualifies as genocide or crimes against humanity, understandable as they are from a legal perspective, have not been helpful in this regard. This hyper-intellectualization has in part resulted from the fact that the above-noted raison d’etre for genocide and crimes against humanity has been lost sight of. The fact that the international community found it necessary to limit the reach of these legal rubrics for political reasons should never have been given the importance it is has by legal scholars and commentators, attended as this has been by the uninformed parroting of the press. That the massive human rights abuses perpetrated under Democratic Kampuchea may not fit within the definitional restrictions of one or both of these international crimes is a result of international political expediency, and has no bearing upon their level of moral depravity, which was on a par with the worst imaginable cases that would legally qualify as genocide or crimes against humanity.

It is submitted that in the case of the proposed Khmer Rouge Tribunal, domestic Cambodian substantive criminal law in force at the time the crimes were committed will be entirely sufficient to provide a judicial reckoning for the architects of what has come to be known as the "Cambodian Genocide". Furthermore, it will be entirely fitting and appropriate that the responsible parties be tried pursuant to the very law that they so brazenly flouted. For those who insist on granting genocide and crimes against humanity a higher level of heinousness than other examples of mass murder that can, and have been imagined, I suggest that they are doing more harm than good. As others have pointed out, in the ideal world that we are working towards there will no longer exist any political powers, governments or entities that will ever again take it upon themselves to so heinously oppress and abuse that portion of humanity subject to their power. Undoubtedly progress towards this ideal state of affairs has been accelerated through the exercise of extra-territorial criminal jurisdiction over matters previously consigned to the domain of national sovereignty. But the reliance upon international jurisdiction and its substantive criminal law is in no way superior to the administration of justice through the application of domestic criminal law, in a venue where those in charge of the proceedings are responsible to the people who suffered from the criminal acts in question. In short, these international crimes were neither designed nor intended to supplant the primacy of domestic law in a duly constituted national tribunal. Rather, they were intended to act as a stop-gap measure where the necessary political will to punish massive human rights atrocities is found lacking on the domestic level.

Unfortunately, there are some in the international legal and human rights fields who seem intent on seeing precisely the opposite turn of events, where jurisdiction over massive human rights atrocities will increasingly and routinely be granted to an international legal bureaucracy with no connection to the events in question and no responsibility to those affected by them. Thus we have heard proclamations stating that the recent events at the World Trade Center in New York City constituted "crimes against humanity" that need to be prosecuted on an international, and thus presumably more authoritative level. I believe that I speak for the vast majority of New Yorkers when I insist that the only proper legal venue for the ringleaders of this criminal enterprise will be New York, where they will be prosecuted for 5,000+ counts of plain, old-fashioned murder.

While the Rome Statute establishing the International Criminal Court notes that the Court is being created to address situations where the governments of nation-states where massive human rights abuses occur are either unwilling or unable to prosecute the crimes in question, it is interesting to note how quickly this underlying rationale seems to be getting lost sight of. Now we are hearing calls for international prosecutions that seem to be aimed at preventing nation-states from prosecuting offenses committed within their jurisdictions. No doubt some of the Court’s supporters are starting to realize that countries unwilling to prosecute massive human rights abuses perpetrated within their jurisdictions are also likely to be unwilling to deliver the suspects to the ICC. As a result we are already hearing proposals for extending ICC jurisdiction far beyond its stated purpose.

It is interesting to note the Cambodian government’s enthusiastic support for the ICC. Does anyone think for a moment that that government would have handed over Ieng Sary, Nuon Chea or Khieu Samphan to an ICC?

Searching for the truth. Number 23. November 2001.

Magazine of Documentation Center of Cambodia (Khmer version).

The Khmer Rouge Did Commit Genocide

By Dr. Gregory H. Stanton

President, Genocide Watch

The International Campaign to End Genocide

Prof. Schabas is wrong when he says that the Khmer Rouge did not commit genocide as it is defined in the Genocide Convention.  He is also wrong about when crimes against humanity became defined in international law as including mass murder in domestic settings.

Khmer Rouge mass murder of the Cham Muslim minority was not mere assimilation, as Schabas argues.  He simply has the facts wrong. The surveys that Ben Kiernan and I and the Cambodian Genocide Program have carried out in Cham villages showed a mortality rate of over 50 percent, double the national average. There are also many instances of mass murder of entire Cham villages.  Over 5000 Chams were murdered and thrown into a deep ravine on one day in Kompong Cham province in 1977.  Cham eyewitness survivors also testified to us of roundups of all Chams in their area, followed by mass murder, including such atrocities as burning victims alive. Besides the evidence of systematic results of mass murder, very good proof of genocidal intent, there is also strong evidence that destruction of the Chams was official Communist Party Central Committee policy, including the famous edict, "The Cham shall no longer exist as a group in Kampuchea."

Craig Etcheson has already noted the strong evidence that the Khmer Rouge also committed genocide against the Vietnamese ethnic group.  Heder's claim that all Vietnamese were "resident aliens" is irrelevant under the Genocide Convention. Even if they were, they would be a national group, and destruction of them would be genocide.

Hannum's claim that destruction of the population of the Eastern Zone of Cambodia is also genocide, because it is destruction in part of a national group (Cambodians), may stretch the Genocide Convention, because it was murder of Khmers of one region by Khmers from another region.   The mass murder of the population of the Eastern Zone was Communist Party Central Committee policy.  It was systematically carried out and members of the victim group were marked (with blue and white checked scarves, as Ben Kiernan and I discovered in 1986) as they passed through Phnom Penh during their deportation out of the Eastern Zone.  Schabas is wrong to dismiss this as genocide simply because it is a case of Khmers killing Khmers.  To do so requires that Schabas decide what constitutes a national or ethnic group without regard to the ethnological view of Kampuchea as defined by the Khmer Rouge.  The Khmer Rouge defined the Eastern Zone population as ethnically different than the rest of the population of Kampuchea:  they had "Khmer bodies, but Vietnamese heads." Definition of ethnic or national group by the perpetrators is a common feature of genocides.  The Genocide Convention does not rule it out, nor does it say that foreign legal scholars should define what are ethnic or national groups -- it is a matter for the court trying a case of genocide.  That is why Ratner and Abrams were right in the U.N. Commission of Inquiry Report to leave this up to a Tribunal.

Schabas is also wrong to say that "crimes against humanity" still required a nexus to international armed conflict by 1979.  The Nuremberg Tribunal and later UN Resolutions stating its principles, defined crimes against humanity.  But by 1977, Optional Protocol II of the Geneva Conventions had extended the applicability of crimes against humanity to civil conflicts, and in doing so its framers claimed to be restating customary international law. Indeed, the acts prohibited track closely Common Article 3 of the Geneva Conventions of 1949.  So it is legally wrong for Schabas to attempt to freeze "crimes against humanity" from 1945 up to 1994 (when the nexus requirement to international armed conflict was definitely no longer required in the Statute of the International Criminal Tribunal for Rwanda) or even to 1998 (the Rome Treaty of the ICC.)  Domestic mass murder and many of the other crimes of the Khmer Rouge were already crimes against humanity during their regime.

Bill Schabas's definitionalist denials of genocide by the Khmer Rouge and by the Yugoslav Army in Kosovo unfortunately have pernicious effects.  He means well. He would like to limit use of the word "genocide" so that governments will act when it really happens, and he thinks they won't act very often, so it must be very narrowly defined ("strict construction") His view of the policy process is naive. Governments will choose not to act even when the facts are abundantly clear that the term genocide does apply.  U.N. withdrawal from Rwanda in 1994 at the urging of genocide-denying U.S. State Department lawyers is the most famous case.  It is, in fact, a superb example of the way definitionalism of the sort Schabas advocates can paralyze policy while lawyers wrangle over whether the legal definition of the Genocide convention has been met.  The Human Rights Watch report on Rwanda in Spring 1994, before the genocide, which Schabas helped write, also refused to warn of  "genocide," out of fear that it would misuse the word genocide.

Now Prof. Schabas has been amply cited in a decision declaring that the massacres in Kosovo did not constitute acts of genocide.  His book, Genocide in International Law, provides the basis for this finding, when Schabas argues in effect that ethnic cleansing and genocide are mutually exclusive, because the intent in ethnic cleansing is to drive a group out, whereas the intent in genocide is to destroy the group. Schabas, in dividing human social acts so neatly, ignores the obvious fact that acts of mass murder (including genocidal acts intended to destroy part of an national, ethnic, or religious group, as such) were committed in Kosovo in order to terrorize the population into leaving.  In other words, both genocide and ethnic cleansing were committed in Kosovo. Schabas' denial arises out of his error in confusing motive with legal intent.  The Yugoslav motive may have been to drive Kosovars out, but their mass murder carried ample legal intent to destroy part of the Kosovar group.  Schabas ignores the fact that multiple crimes can be committed in the same systematic program, which in Kosovo included both acts of genocide and ethnic cleansing.

Prof. Schabas' genocide denial, despite (indeed, because of) his expertise, has already made a difference in history. Prof. Schabas needs to confront the facts about the Khmer Rouge, who did commit both genocide and crimes against humanity, as well as the development of the law since Nuremberg.  He also should recognize that genocide and ethnic cleansing are not mutually exclusive, and that both were committed in Cambodia  Kosovo.

Searching for the truth. Number 22. October 2001.

Magazine of Documentation Center of Cambodia (Khmer version).

Should Khmer Rouge Leaders Be Prosecutor for Genocide or Crimes Against Humanity?

By William A. Schabas*

WERE THE CRIMES committed by the Khmer Rouge between 1975 and ^W1979 "genocide"? For many years it has been common practice in human rights circles to speak of the "Cambodian genocide". With the realistic prospect of criminal prosecution of certain Khmer Rouge leaders finally in sight, it will become important to determine whether in a strictly legal sense it is appropriate to use the word "genocide".

A strict construction of the scope of the term, defined in article II of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide[1], suggests the conclusion that the Khmer Rouge atrocities were not genocide. According to the Convention:

In the present 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;

(e) Forcibly transferring children of the group to another group.

This debate is not about whether the crimes committed by Pol Pot and Milosevic actually took place; it is only about whether they are more properly described as crimes against humanity , rather than genocide. There are several definitions of crimes against humanity , but they share the common denominator of persecution of individuals or groups in a widespread and systematic fashion.[2] In the 1970s, the generally recognised definition of crimes against humanity was derived from article VI of the Charter of the Nuremberg Tribunal: "murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial or religious grounds".

If the term "crimes against humanity" is more accurate, why have we tended to describe the atrocities as "genocide". There are several reasons. First, genocide is the most severe form of crime against humanity. Although crimes against humanity involve terrible stigma, probably it is even worse to describe acts as genocide. Second, the existence of the Genocide Convention, to which Cambodia was a party at all relevant times, imposed clear international legal obligations The same could not be said of crimes against humanity, for which no real international treaty of universal application existed until the adoption of the Rome Statute of the International Criminal Court in 1998. The Rome Statute has no retroactive application, although an argument can be made that it largely codifies customary international law, including its definition of crimes against humanity. Although it is now clear that crimes against humanity can be committed in peacetime, this was not the case at Nuremberg. At some point between 1945 and 1998 the nexus or connection between crimes against humanity and armed conflict disappeared. But when? Khmer Rouge defendants will argue that this took place after 1979, and that they cannot therefore be prosecuted for crimes against humanity absent proof of an armed conflict in Cambodia between 1975 and 1979. Genocide does not face the same legal difficulty , because article I of the 1948 Genocide Convention specifies that the crime can be committed "in time of peace or in time of war"

Probably aware of these legal complications associated with prosecution for crimes against humanity , in 1979, the regime that finally chased the Khmer Rouge from power held a show trial of Pol Pot and Ieng Sary for charges of genocide. They were of course convicted, which is unsurprising given that preamble of the Decree Law establishing the so-called People's Revolutionary Tribunal denounced the massacres committed by the Pol Pot-Ieng Sary clique. The convictions were not for genocide as defined in the 1948 Convention, but rather an idiosyncratic definition that is substantially akin to the concept of crimes against humanity: "planned massacres of groups of innocent people; expulsion of inhabitants of cities and villages in order to concentrate them and force them to do hard labor in conditions leading to their physical and mental destruction; wiping out religion; destroying political, cultural and social structures and family and social relations".[3]

Genocide, as defined in the Convention, requires the intentional destruction of a "national, ethnical, racial or religious group". Which group was it in Cambodia? The indictment at the 1979 trial talks about a "systematic plan to kill all strata of the population".[4] Indeed, it is generally agreed that the Khmer victims of the atrocities were identified by social or economic standing. Those wearing eyeglasses, for example, were singled out for persecution because they belonged to the suspect class of intellectuals. When the definition of genocide was being devised by the Sixth Committee of the General Assembly in 1948, there were proposals to include social and economic groups, but these were quite unequivocally rejected.[5] Furthermore, over the years, many have pleaded-but unsuccessfully-for an expanded scope of the Convention so as to cover political, economic and social groups.[6]

Hurst Hannum and others have argued that because the victims were members of a national group, this must constitute genocide.[7] But the argument leads to the conclusion that all mass killing is equivalent to genocide, because obviously any large group of people will belong to one or more national groups. The reasoning becomes circular, tautological, and in effect deprives the distinct concept of genocide of any real meaning. To be fair, the argument has found some sympathy before the Spanish courts in the recent Ponichet case[8]. The more perverse consequences of such an argument emerged when Milosevic charged NATO countries with genocide on the same basis before the International Court of Justice in what is surely one of the more frivolous claims to be submitted before that august body[9].

Most serious observers now reject such a simplistic construction of the genocide convention.[10] The United Nations Group of Experts that inquired into Khmer Rouge prosecutions was also quite sceptical of the argument. While agreeing that the Khmer people of Cambodia constituted a national group within the meaning of the Convention, the Group said that "whether the Khmer Rouge committed genocide with respect to part of the Khmer national group turns on complex interpretative issues, especially concerning the Khmer Rouge's intent with respect to its non-minority-group victims". The Group declined taking a position on the issue, saying that the matter should be addressed by the courts if Khmer Rouge officials are charged with genocide against the Khmer national group[11].

Thus, the fundamental difficulty with using the term genocide to describe the Cambodian atrocities lies with the group that is the victim of genocide. Destruction of Khmers by Khmers simply stretches the definition too much. At the same time, many observers attempt to salvage the genocide allegation in Cambodia by focusing on the persecution of religious groups, which are, of course, comprised within the Convention definition of genocide. The Khmer Rouge considered Buddhist monks to be social parasites. They obliged them to abandon their religious robes and to work in manual labor alongside the Cambodian peasants. Those who refused were punished with great brutality. Symbols of the religion, including the pagodas, were vandalized and pillage. The Khmer Rouge were no more tolerant toward minority religions than they were towards Buddhism, that of the majority. Thus, for example, the Muslim Cham were also single out for attack, with the goal being their "assimilation" into the majority Khmer population.

Destruction of cultural institutions and forced assimilation are, of course, very effective techniques for destroying religious or ethnic groups. They are prohibited by international law[12]. The problem here is that these are not acts of genocide within the scope of article II of the Convention. Indeed, the draters of the Convention quite expressly excluded cultural genocide, with one exception, the forced transfer of children from group to antoher. The principal opposition to including cultural group came from countries of the "new world", notably the United States and Canada[13]. They wanted to stifle resistance to assimilation by immigrants and, perhaps only intuitively at that time, were nervous about future claims from aboriginal groups. In any event, that "cultural genocide" was excluded from the Genocide Convention is uncontestable. For this reason, what was essentially cultural genocide perpetrated against the Muslim Cham and the Buddhist monkhood falls short of what is proscribed by the Convention. The treatment of the Buddhist monks and the Muslim Cham would meet our contemporary definitions of crimes against humanity without great difficulty[14]. And they certainly fit within the tailor-made definition of genocide adopted by the organizers of the 1979 trial.

Nevertheless, while the term "genocide" is legally inappropriate to describe the Khmer Rouge atrocities,  it may have irrevocably entered our human rights nomenclature. One of the great think tanks on the subject is called the Cambodian Genocide Program, at Yale University. Legislation enacted in the United States in 1994 declares: "The persecution of the Cambodian people under the Khmer Rouge rule, , [when] the bulk of the Khmer People were subjected to life in an Asian Auschwiz, constituted one of the clearest examples of genocide in recent history."[15] A General Assembly resolution adopted in 1997 states: "Desiring that the United Nations respond positively to assist efforts to investigate Cambodia's tragic history including responsibility for past international crimes, such as acts of genocide and crimes against humanity."[16]

While this colloquial use of the term genocide may have considerable appeal, it becomes troublesome once criminal prosecution is contemplated, as is currently the case with respect to the Cambodian atrocities. In the course of negotiations concerning the establishment of a United Nations-supported Khmer Rouge tribunal, the Cambodian government proposed to redefine genocide once again, the better to convict[17]. A United Nations delegation, headed by legal officer Ralph Zacklin, noted the discrepancy with the Convention definition and charged that any such provision would violate the prohibition of retroactive offences[18]. It added, however, that the categories not covered by the Convention definition would be captured under the rubric of crimes against humanity[19]. A United Nations counter-proposal confined itself to the text of article II of the Convention[20]. This is the better approach although it will make convictions for genocide, as opposed to crimes against humanity, rather less likely.