On Wednesday morning, Muny Keo, 23, made her first visit to the Tuol Sleng Genocide Museum. She took in the rusted leg irons, the black and white photographs of tortured bodies, and the piles of skulls-ample evidence, she decided, of what happened in Cambodia between 1975 and 1979. “Genocide,” she said.
So far the Khmer Rouge tribunal has not reached the same conclusion. Five suspects are now in custody but none has been charged with genocide.
Many people reach for the word genocide when there seems to be no other term to convey the unique moral horror of their suffering. But genocide means one thing in the popular imagination in Cambodia and quite another in a court of law.
In July, prosecutors from the Extraordinary Chambers in the Courts of Cambodia identified five Khmer Rouge suspects they said should be investigated for crimes including genocide.
Those five suspects-Duch, Nuon Chea, Khieu Samphan, Ieng Sary, and Ieng Thirith-are now in jail awaiting trial on charges of crimes against humanity and, except for Ieng Thirith, war crimes.
Tribunal judges say they may decide to add charges of genocide as investigations progress.
“Investigating judges opened investigations for all crimes,” ECCC Co-Investigating Judge You Bunleng said. “If there are facts, [we] will investigate them gradually. [We] won’t abandon any crime,” he said.
Marcel Lemonde, also a co-investigating judge, wrote by email that judges will have to decide whether there was a genocide in Cambodia before they conclude their work.
“The persons arrested so far have not been charged with genocide because the investigating judges considered there was not sufficient evidence of a genocide, yet. The investigation is still ongoing and their judgment on this issue may (or may not) evolve,” he added.
Over the course of the 20th Century, genocide has emerged as the sina qua non of crimes. Crimes against humanity carry the same legal penalty as genocide, but the term does not occupy the same dark place in popular speech.
The word genocide was invented in the early 1940s by a Polish Jew named Raphael Lemkin, who hoped it would capture the moral horror of the Nazi effort to exterminate Jews and spur laggardly Western powers to action.
Lemkin’s new word became a new crime in 1948, when the UN General Assembly passed the genocide convention, which spelled out the legal terms of the offense: Committing murder or causing serious harm with the intent to destroy in whole or in part a national, racial, or religious group.
Political groups were not included-an omission that served Joseph Stalin and his Soviet delegation to the UN, among others, well.
The Khmer phrase for genocide bralai (killing) pouchsas (race, or seeds of a nation) holds similar weight.
“Violent, deep horror is contained in this word in Khmer. That’s why Cambodians use it,” Documentation Center of Cambodia Director Youk Chhang said.
The Vietnamese and Vietnam-backed forces that overthrew the Khmer Rouge in 1979 and installed a new government also used the term to describe the horrors of the regime they’d just ousted.
But to convict someone of genocide, ECCC co-Prosecutor Robert Petit said, prosecutors must prove beyond a reasonable doubt two layers of intent: a common murderer wants his victims to die; a genocidal murderer wants his victims to die because they are members of a specific ethnic, racial, or religious group.
“Genocide requires specific proof,” Petit said.
“It doesn’t mean anyone is denying what happened. It just means the legal definition is different,” he said.
All this leaves the ECCC with several, politically-difficult possibilities: Not charging anyone with genocide, having a top Khmer Rouge leader acquitted of genocide, and levying charges of genocide for crimes committed against a non-Khmer group, like the Cham or the Vietnamese.
Youk Chhang said DC-Cam has been reaching out to Cham, Vietnamese, Chinese, and hill tribe communities in Cambodia, in the hopes of gathering evidence that might support a charge of genocide. “We should make all efforts,” he said.
Petit and Lemonde emphasize that law, not politics, must govern their actions.
“Judges must not make their decisions according to the general public perception but on a legal basis only,” Lemonde wrote. “But, of course, they must explain their decisions, so that the general public understands, if possible,” he added.
The possibility that Khmer Rouge leaders might not be convicted of genocide strikes some Cambodians as a betrayal of the suffering of millions of victims.
Khy Sam Ol, 45, and his wife Keo Touch, 45, took their 13-year-old son to Tuol Sleng for the first time Wednesday.
They endured forced labor under the Khmer Rouge, and when they try to count the number of family members who died, they run out of fingers.
Khy Sam Ol, a motorbike repairman, waved his arm angrily at the stark photographs of the condemned: Khmer after Khmer after Khmer.
“Why can you say there was no genocide?” he asked.
He began to laugh, his eyes wet with anger, at an idea so preposterous.
“In Tuol Sleng museum it says genocide on the sign,” Khy Sam Ol said. “Why charge them with other crimes?”