Two years into his investigation of the Khmer Rouge regime, international Co-Investigating Judge Marcel Lemonde said this week that his office is still considering whether to charge its leaders with genocide.
But it’s no simple matter.
“I can only confirm that we are still working on the question of a possible genocide charge, which will perhaps be retained…or not,” he wrote in an e-mail.
In their initial allegations, lodged two years ago today, prosecutors proposed that genocide charges be filed against all five of the court’s current detainees for genocide against Buddhists, Cham Muslims and Vietnamese.
So far, given evidence that they may be responsible for the deaths of as many as 2.2 million people, the five have been charged with war crimes and crimes against humanity.
Try as they might, lawyers and scholars can only struggle against the popular perception that these charges are lesser than genocide, the paramount atrocity that the British leader Winston Churchill once called “the crime without a name.”
Designated by the vivid Khmer phrase “bralai puoch sas,” or “race killing,” the term has been irreversibly associated with Pol Pot and the Khmer Rouge “genocidal regime.”
Mr Lemonde conceded Thursday that his investigation, which is expected to close in as little as five months, may conclude that there is insufficient evidence that Democratic Kampuchea was guilty of such a crime.
“If the decision has yet to be taken, it is indeed because the question is more complex than for crimes against humanity, particularly as concerns the intentional element,” he wrote.
A three-member panel of UN experts reported in 1999 that there was evidence to support genocide charges, as the Pol Pot regime “subjected the people of Cambodia to almost all of the acts enumerated in the [genocide] convention.”
However, proving that the Khmer Rouge had the intent to commit genocide was “the more difficult task,” they said.
Defined in the 1948 UN genocide convention as the attempt “to destroy, in whole or in part, a national, ethnical, racial or religious group,” the crime was carefully designed, under pressure from various governments including the Soviet Union, to exclude political groups.
Yet it was perhaps for the most part in political and social terms that the Khmer Rouge revolution defined its enemies.
But does that account for all of its criminality? Did the Khmer Rouge target the Cham minority, which the revolutionary government said had “to mix flesh and blood with the Khmer,” because of its ethnic and religious identity or merely as a part of the attempt to abolish all religions?
Prosecutors allege that Cham communities concentrated in the east were broken up and forcibly intermingled with the Khmer populations in the north and northwest as part of a policy that resulted in the deaths of an unknown number of Cham people.
Tuon Yiek Kob, a teacher of the Muslim faith in Kampot province, said Friday that he doesn’t believe that Pol Pot wanted to destroy Islam any more than Cambodia’s other religions.
“I think Pol Pot wanted to eliminate all religions, including my religion, too,” he said, noting however that even those Muslims who agreed to the government’s imposed sacrilege of eating pork did not escape.
“Both the Chams who agreed and who disagreed to eat pork were still killed,” he said. “That was the worst.”
Historian Ben Kiernan, founding director of the Cambodian Genocide Program at Yale University in the US, has argued forcefully that Cambodia as a whole and the Cham minority did experience genocide. He wrote in 1996 that, accounting for population growth, the Cham community shrank under the Khmer Rouge by 90,000 people from a total of about 250,000 in 1975.
He cited the findings of historian Stephen Heder, a former tribunal investigator, that Cham deportees had no political rights, were more prone to execution than others and were given less food, as “strong grounds for the case that Democratic Kampuchea pursued a campaign of racial persecution against the Chams.”
Mr Lemonde said it was untrue to imply that crimes against humanity charges are somehow less serious than genocide.
“If ultimately a genocide charge is not retained, this will certainly not have the effect of minimizing the scale of suffering or of giving it a weaker name,” he said.
(Additional reporting by Kuch Naren)