The Khmer Rouge tribunal has charged former Khmer Rouge leaders Nuon Chea and Ieng Sary with genocide, marking the first time the court has brought that charge.
“Ieng Sary and Nuon Chea have this week been informed that the charges against them have been expanded to include genocide against Cham Muslims and Vietnamese,” ECCC spokesman Lars Olsen said yesterday.
The two former Khmer Rouge leaders have also been newly charged with three additional crimes under the 1956 Penal Code: homicide, torture and religious persecution, Mr Olsen added. Both men were already charged with crimes against humanity and war crimes.
It remains unclear whether Khmer Rouge head of state Khieu Samphan or former Minister of Social Action Ieng Thirith will be charged with genocide or crimes under the 1956 Penal Code, Mr Olsen said.
While the popular imagination has embraced the term “genocide” to describe atrocities committed during the Khmer Rouge regime, the international legal context is considerably more complicated.
The 1948 Convention on Genocide defines the term as “acts committed with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group.” But since most of those killed in Cambodia between 1975 and 1979 were ethnic Khmers targeted for political or economic reasons, the vast majority of Khmer Rouge crimes do not constitute genocide.
Genocide has long been a topic of heated debate among scholars of the era. Ben Kiernan, the founding director of Yale University’s Cambodian Genocide Program, is a fierce proponent of the application of the term, arguing that the Khmer Rouge disproportionately targeted Vietnamese, Chams and other ethnic minorities.
Other historians, including David Chandler and Philip Short, have maintained that despite the heinous crimes committed by the Khmer Rouge, there was no Cambodian genocide.
In an e-mail yesterday, Mr Short called the genocide charges “misconceived and unhelpful.”
Both Vietnamese and Cham Muslims were indeed targeted by the Khmer Rouge, Mr Short said, but it was for political reasons and not on racial, ethnic or religious grounds.
“Under Pol Pot, any group which resisted KR policy was repressed and eventually massacred: It had nothing to do with race,” Mr Short said.
“It will be easy to prove that Nuon Chea and Ieng Sary were guilty of [crimes against humanity] thousands of times over,” he added. “Why muddy the waters by bringing in doubtful charges which will only lead the tribunal to bog down still further in its own contradictions?”
Defense lawyers for Nuon Chea and Ieng Sary said yesterday that they were unsurprised by the new charges.
“We’ve always been aware that Nuon Chea could be charged with any of the crimes contained in the Introductory Submission, and we’re not a bit surprised that the OCIJ [office of the co-investigating judges] is sticking closely to the OCP [office of the co-prosecutors’] version of events,” Andrew Ianuzzi, a consultant for the Nuon Chea defense team, wrote in an e-mail.
In their initial allegations in 2007, prosecutors recommended that charges be filed against all five detainees for genocide against Buddhists, Chams and Vietnamese.
Michael Karnavas, Ieng Sary’s international defense lawyer, had harsh criticism yesterday for the office of the co-investigating judges, questioning their objectivity and competence.
“We have always expected the OCIJ going forward on genocide,” he wrote in an e-mail. “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 inconsistent and substandard….”
Ieng Sary’s defense team filed a motion last month arguing that the international Genocide Convention could not be applied to the Khmer Rouge tribunal, which is a hybrid court with domestic and international components.
Lyma Nguyen, a civil party lawyer who represents about 20 Vietnamese victims of the Khmer Rouge, said that she and her clients welcomed the genocide charges, which she called a “significant development.”
“To have the full extent of crimes placed on the historical record is also a significant step towards bridging the gap between the atrocities suffered in the past by the client group I represent, and their ability to move forward into the future with a sense of closure,” she wrote in an e-mail.
Youk Chhang, director of the Documentation Center of Cambodia, echoed this sentiment yesterday, explaining that the Khmer word for genocide-”bralai puochsas,” or “race killing”-is by far the most common term used in Cambodia to refer to Khmer Rouge atrocities.
“Khmer people feel that it is the only term that can describe what happened to them,” he said. “That’s why it is so important, not only legally but also historically, for the Khmer people.”
