Legal Constraints in the Interpretation of Genocide

Vianney-Liaud, Mélanie

doi:10.1007/978-94-6265-105-0_10

Mélanie Vianney-Liaud⁶

Part of the book series: International Criminal Justice Series ((ICJS,volume 6))

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2 Citations

Abstract

Crimes committed by the Khmer Rouge in Cambodia in the 1970s are known as being among the most violent atrocities of the 20th century. Yet, the legal characterization of such acts as genocide has been subject of serious legal controversies beyond the ECCC. As a consequence genocide charges have only been retained in Case 002 against the last Khmer Rouge senior leaders, and those charges are very restricted and does not include the majority of the Cambodian victims. Such a decision irrefutably disappoints many victims who consider that their suffering was not recognized by the ECCC. This chapter identifies and analyses the legal constraints with respect to the legal characterization of the Khmer Rouge atrocities as a crime of genocide.

The author is a Ph.D. candidate (International Criminal Law) at the Aix-Marseille University III, France and a legal consultant in a victims’ team at the International Criminal Court. Some sections of this chapter have been the subject of a first publication, see M. Vianney-Liaud, ‘Controversy on the Characterization of Genocide at the Extraordinary Chambers in the Courts of Cambodia’, Brief 8 International Crimes Database (October 2014), available at http://www.internationalcrimesdatabase.org/Commentary/IcdBriefs2014 (visited 15 June 2015). The author is thankful to Simon Meisenberg and Clare Slattery for their relevant suggestions and comments.

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Notes

1.
Schabas 2001, at 293.
2.
Convention on the Prevention and Punishment of the Crime of Genocide (adopted 9 December 1948, entered into force 12 January 1951) 78 UNTS 277 (hereafter Genocide Convention).
3.
The USSR supported Vietnam.
4.
Boyle 1999, at 775.
5.
For example, in 1979, the study of a damning report on the situation of DK by the Commission on Human Rights of the United Nations was suspended, see ibid., at 776.
6.
Boyle 2004, §§ 228, 240.
7.
Ibid., § 227.
8.
Sliwinski 1995, at 167 (unofficial translation).
9.
See e.g., the GA Res. 52/35, 12 December 1997, Preamble; Cambodian Genocide Act 1994 (United States Congress).
10.
See Forster 2012, at 39.
11.
See ECCC, ‘Co-Investigating Judges indict Khieu Samphan, Nuon Chea, Ieng Sary and Ieng Thirith’ (16 September 2010), available at http://www.eccc.gov.kh/en/articles/co-investigating-judges-indict-khieu-samphan-nuon-chea-ieng-sary-and-ieng-thirith (visited 15 June 2015).
12.
Former Head of DK, see ECCC, ‘Khieu Samphan, Profile’, available at http://www.eccc.gov.kh/en/indicted-person/khieu-samphan (visited 15 June 2015).
13.
Former Deputy Secretary of the CPK, see ECCC, ‘Nuon Chea, Profile’, available at http://www.eccc.gov.kh/en/indicted-person/nuon-chea (visited 15 June 2015).
14.
Former Deputy Minister for Foreign Affairs, see ECCC, ‘Ieng Sary, Profile’, available at http://www.eccc.gov.kh/en/indicted-person/ieng-sary (visited 15 June 2015). Ieng Sary died on 14 March 2013.
15.
Former Minister of Social Affairs, see ECCC, ‘Ieng Thirith, Profile’, available at http://www.eccc.gov.kh/en/indicted-person/ieng-thirith (visited 15 June 2015). Ieng Tirith was declared unfit to stand trial due to mental illness on 13 September 2012. She died on 22 August 2015.
16.
The Pre-Trial Chamber hears motions and appeals against orders issued by the Co-Investigating Judges while the case is under investigation.
17.
See ECCC, ‘Case 002 sent for trial’ (13 January 2011), available at http://www.eccc.gov.kh/fr/node/10480 (visited 15 June 2015).
18.
Jarvis and Fawthrop 2004, at 224: ‘The vast majority of the atrocities were carried out by Khmers against Khmers.’
19.
Severance Order Pursuant to Internal Rule 89ter, Nuon Chea and others (002/19-09-2007/ECCC-E124), Trial Chamber, 22 September 2011.
20.
Decision on Additional Severance of Case 002 and Scope of Case 002/02, Nuon Chea and others (002/19-09-2007/ECCC-E301/9/1), Trial Chamber, 4 April 2014.
21.
Judgment, Nuon Chea and others (002/19-09-2007/ECCC-E1/241.1), Trial Chamber, 7 August 2014 (hereafter ‘Case 002/01 Trial Judgment’).
22.
Sémelin 2005, at 481–508.
23.
See e.g. Sémelin 2005, at 482. The Khmer expression for genocide, prolai pouch-sas, roughly means to eliminate the lineage of a people or a nation, and that definition echoed many Cambodians’ personal experiences under the Khmer Rouge, see Giry 2014.
24.
From a legal point of view, most jurists agree that international law establishes no formal hierarchy among mass crimes, in particular, see the interview of former Co-Investigating Judge Lemonde in which he expresses that point of view: ‘the notion of crimes against humanity is no less severe than the notion of genocide’, in R. Lainé, J. Reynaud, ‘Khmer Rouge, une simple question de justice’, The Factory—Fontana—Arte France—RTBF, 2011 (unofficial translation). However, many are those who admit the position of genocide on the top, because of the harm that that crime addresses. For a discussion on the ranking of genocide, crimes against humanity and war crimes, see e.g. Bogdan 2002, at 5–9.
25.
Sémelin 2005, at 484.
26.
Forster 2012, at 31. See also the national ECCC Co-Investigating Judge, You Bunleng: ‘For Cambodians, the concept of genocide has always been admitted’ in Lainé, Reynaud, supra note 24 (unofficial translation).
27.
Forster 2012, at 39.
28.
ECCC Agreement, Article 1; ECCC Law, Article 1.
29.
ECCC Law, Article 33(new).
30.
ECCC Agreement, Article 12.
31.
International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171, Article 15(1): ‘No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed.’
32.
The 2001 ECCC Law was then amended in 2004 in order to be brought into conformity with the ECCC Agreement adopted in 2003. Article 4 of the ECCC Law on the crime of genocide has not been modified.
33.
Ieng Sary’s Motion Against the Applicability of the Crime of Genocide at the ECCC, Nuon Chea and others (002/19-09-2007/ECCC-D240), Ieng Sary Defense, 30 October 2009, § 13 (hereafter Ieng Sary’s Motion on Genocide).
34.
Ibid., § 17; see also Ieng Sary’s Appeal Against the Closing Order, Nuon Chea and others (002/19-09-2007/ECCC-D240), Ieng Sary Defense, 25 October 2010, § 115. The national or international nature of the ECCC has been subjected to discussion, see e.g. Williams 2004, at 232 (the constitutive instrument for the ECCC is the ECCC Law, and not the ECCC Agreement); see contra Nouwen 2006, at 200 (pointing out that though the ECCC Law was adopted two years before the 2003 Agreement, it was later amended to incorporate the provisions of the Agreement). Finally, the ECCC judicial bodies determined the hybrid nature of the ECCC, see e.g. Decision on Request for Release, Kaing Guek Eav alias Duch (001/18-07-2007/ECCC-E39/5), Trial Chamber, 15 June 2009, § 10: ‘Although its constitutional documents show that the ECCC was established within the Cambodian courts structure, the ECCC is, and operates as, an independent entity within this structure.’
35.
Closing Order, Nuon Chea and others (002/19-09-2007/ECCC-D427), Co-Investigating Judges, 15 September 2010, § 1302 (hereafter Closing Order).
36.
Ibid., § 1310.
37.
Ibid., § 1305. Case 002’s Closing Order concerned the four last surviving highest-ranking Khmer Rouge cadres. According to the CIJs’ reasoning, the question remains of whether defendants who were not part of the highest Khmer Rouge’s authorities and only lower ranking cadres, had the same access to and knowledge of international law, could be indicted for genocide. With regard to this question, it is interesting to note that on 9 December 2015, the International Co-Investigating Judge charged Yim Tith, a suspect in Case 004, with the alleged crime of genocide.
38.
Decision on Ieng Sary’s Appeal Against the Closing Order, Nuon Chea and others (002/19-09-2007/ECCC-D427/1/30), Pre-Trial Chamber, 11 April 2011, § 244 (hereafter Decision on Ieng Sary’s Appeal).
39.
GA Res. 96(I), 11 December 1946.
40.
Decision on Ieng Sary’s Appeal, supra note 38, § 246.
41.
ECCC Agreement, Article 9; ECCC Law, Article 4.
42.
Genocide Convention, supra note 2, Article II: ‘Genocide means any of the following acts committed with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: […]’; ECCC Law, Article 4: ‘The acts of genocide […] mean any acts committed with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group, such as: (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.’
43.
Closing Order, supra note 35, § 1311; Ieng Sary’s Supplemental Alternative Submission to His Motion Against the Applicability of Genocide at the ECCC, Nuon Chea and others (002/19-09-2007/ECCC-D240/2), Ieng Sary’s Defense, 21 December 2009 (hereafter Ieng Sary’s Supplemental Submission), § 11.
44.
See Judgment, Krstić (IT-98-33-T), Trial Chamber, 2 August 2001, § 580: ‘[C]ustomary international law limits the definition of genocide to those acts seeking the physical or biological destruction of all or part of the group.’
45.
See Judgment, Krstić (IT-98-33-A), Appeals Chamber, 19 April 2004, § 33: ‘The fact that the forcible transfer does not constitute in and of itself a genocidal act does not preclude a Trial Chamber from relying on it as evidence of [intent] […]’.
46.
See Judgment, Akayesu (ICTR-96-4-T), Trial Chamber I, 2 September 1998, § 731: ‘[R]ape and sexual violence […] constitute genocide in the same way as any other act as long as they were committed with the specific intent to destroy, in whole or in part, a particular group targeted as such.’
47.
See ECCC Law, Article 5 which provides jurisdiction for the ECCC over crimes against humanity explicitly includes ‘deportation’, ‘rape’, and ‘other inhuman acts’.
48.
See e.g. Judgment, Bagilishema (ICTR-95-1A-T), Trial Chamber I, 7 June 2001, § 64; Judgment on Defence Motions to Acquit, Sikirica and others (IT-95-8-T), Trial Chamber, 3 September 2001, § 89.
49.
Ieng Sary’s Supplemental Submission, supra note 43, § 12.
50.
Forster 2012, at 34.
51.
Olivie and Muwero 2009, at 6.
52.
Forster 2012, at 31.
53.
Ieng Sary’s Supplemental Submission, supra note 43, § 14.
54.
ECCC Law, Article 4; Olivie and Muwero 2009, at 11.
55.
In the 2004 version, the word ‘new’ follows the amended articles.
56.
The word ‘attempt’ is singular in the Convention, while it is in plural in the ECCC Law: ‘attempts to commit genocide’ (emphasis added).
57.
Boyle 2004, § 1041; Olivie and Muwero 2009, at 22; Ardema 2006, at 61.
58.
Ieng Sary Supplemental Submission, supra note 43, §§ 16–19.
59.
The ICTY and ICTR have jurisdiction over the crime of genocide as it is defined in the Convention, Article 6(1) ICTYSt. and Article 7(1) ICTRSt.
60.
See e.g. Judgment, Kayishema and Ruzindana (ICTR-95-1-A) Appeals Chamber, 1 June 2001, § 185; Judgment and Sentence, Musema (ICTR-96-13-A), Trial Chamber I, 27 January 2000, § 114.
61.
Forster 2012, at 36.
62.
Minutes of the Session of the National Assembly of the Kingdom of Cambodia, A Draft Law on the Establishment of Extraordinary Chambers in the Courts of Cambodia for Prosecuting Crimes Committed During the Period of Democratic Kampuchea, 29 December 2000, in Documentation Center of Cambodia, 13 Searching for the Truth (January 2001), at 80.
63.
Ieng Sary’s Supplemental Submission, supra note 43, § 18; Forster 2012, at 37.
64.
See Selbmann, Chap. 4 in this Volume.
65.
Decree Law No.1: Establishment of People’s Revolutionary Tribunal at Phnom Penh to Try the Pol Pot-Ieng Sary Clique for the Crime of Genocide, 15 July 1979, available at http://law.scu.edu/wp-content/uploads/Decree_Law_No._1.pdf (visited 15 June 2015 2015).
66.
‘Acts of genocide’ were ‘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’ in Linton 2007, at 209.
67.
Ibid.
68.
Decision on Ieng Sary’s Appeal, supra note 38, §§ 165–175; see also Report of the Group of Experts for Cambodia Established Pursuant to General Assembly Resolution 52/135, UN Doc. S/1999/231, A/53/850, 16 March 1999, Annex, § 43 (hereafter Report of the UN Group of Experts).
69.
Schabas 2001, at note 23.
70.
Etcheson 2006, at 8.
71.
Genocide Convention, supra note 2, Article V.
72.
Ibid., Article I: ‘The Contracting Parties confirm that genocide […] is a crime under international law’ (emphasis added); Decision on Ieng Sary’s Appeal, supra note 39, § 246.
73.
See e.g. Ascensio 2010, at 48; van Schaak 1997, at 2261.
74.
Lemkin 1944, at 79–92.
75.
Akhavan 2012, at 95.
76.
GA Res. 96(I), supra note 39.
77.
Ascensio 2010, at 49; van Schaack 1997, at 2280.
78.
Schabas 2000, at 150; Nersessian 2010, at 101–102.
79.
Decision on Ieng Sary’s Appeal, supra note 38, § 246.
80.
Van Schaack 1997, at 2250–2260. The author mentions several states whose penal codes provide for an extended definition of the crime of genocide.
81.
Code pénal (Paris: Dalloz, 2014), Article 211–1.
82.
Ascensio 2010, at 47; Boyle 2004, § 224.
83.
Nersessian 2010, at 92–93.
84.
For instance, the French definition was adopted in 1994.
85.
See e.g. Ascensio 2010, at 51. The author notices that the Convention’s definition has been slightly modified for its application at the International Criminal Court with the adoption in 2002 of the Elements of Crimes which add the ‘contextual element’. In particular, see Article 6(a)4: ‘The conduct took place in the context of a manifest pattern of similar conduct directed against that group or was conduct that could itself effect such destruction.’
86.
Boyle 2004, § 224.
87.
Closing Order, supra note 35, § 1311 (emphasis added).
88.
ECCC Agreement, Article 12 provides: ‘where there is uncertainty regarding the interpretation of application of a relevant rule of Cambodian law, or where there is a question regarding the consistency of such a rule with international standards, guidance may […] be sought in procedural rules established at the international level.’ Article 12 only concerns ‘procedural rules’. However, since the different language versions of Article 4 of the ECCC Law create uncertainty as for its application and there is doubts regarding its consistency with the nullum crimen sine lege principle, the CIJs may have conceivably been influenced by the spirit of that rule, see ECCC Agreement, Article 12(1) and (2).
89.
Group no. 9 gathers civil parties who are members of the Comité des Victimes des Khmers Rouges (CVKR), a French organization of Khmer Rouge victims.
90.
Sher 2004, at 60.
91.
Forster 2012, at 147.
92.
Schabas 2000, at 132.
93.
Letter of Judge Hoc Pheng Chhay, ‘Les crimes de génocide contre le peuple nouveau’, 1 September 2013 (on file with the author).
94.
Continuation of the Consideration of the Draft Convention on Genocide: Report of the Economic and Social Council, UN Doc. A/C.6/SR74, 18 October 1948, at 103–106.
95.
Ascensio 2010, at 54.
96.
Akayesu, supra note 46, § 516.
97.
Akayesu, supra note 46, § 511 (emphasis added).
98.
Ascensio 2010, at 53.
99.
Boyle 2004, § 240.
100.
Chhay, supra note 93, at 3–4.
101.
Closing Order, supra note 35, § 1308. In the Closing Order, the CIJs referred to the jurisprudence of both ICTY and ICTR. In particular, concerning genocide, see at notes 5247 and 5248.
102.
Judgment, Kaing Guek Eav alias Duch (001/18-07-2007/ECCC-E188), Trial Chamber, 26 July 2010, § 34 (hereafter Duch Trial Judgment). In Case 002/01, the Trial Chamber relied on several decisions of the International Criminal Tribunals, Case 002/01 Trial Judgment, supra note 21.
103.
Appeal Judgment, Kaing Guek Eav alias Duch (001/18-07-2007/ECCC-F28), Supreme Court Chamber, 3 February 2012, § 97 (hereafter Duch Appeal Judgment).
104.
See e.g., Schabas 2000, at 132; Nersessian 2010, at 52–54; Quigley 2006, at 147–149.
105.
Decision on Ieng Sary’s Appeal, supra note 38, § 248. The PTC held that ‘the definition of this crime of genocide has been universal, predictable and constant’ and added somewhat expeditiously that it was ‘defined identically in the Genocide Convention and the ECCC Law.’
106.
Criminal Code of the Kingdom of Cambodia, 2009, Article 183 (Khmer-English Translation Bunleng Cheung): “Genocide” shall mean any of the following acts committed with the intent to destroy in whole or in part, a national, ethnical, racial, or religious group, as such: […]’ (emphasis added).
107.
In Case 002/02, the civil parties’ group no. 9 has not been ‘allowed’ submitting the characterization as genocide of the crimes committed against the ‘new people’ to debates. Indeed, the ECCC procedural rules have limited the civil party’s participation and representation at the ECCC, since Case 002. Because of their large number, during the trial phase, the civil parties are gathered in one ‘consolidated group’ whose various interests are represented at hearing by two ‘Lead Co-Lawyers.’ They have the ‘ultimate responsibility to the court for the overall advocacy, strategy, presentation of the interests of the consolidated group […] during the trial stage and beyond’, see ECCC Internal Rules, Rules 12ter and 23. The Lead Co-Lawyers responded the civil parties’ group no. 9 that the characterization of genocide of the ‘new people’ may be discussed during Case 002/02, Judge Chhay, Communiqué, Conférence de presse organisée par le CVKR, 1 November 2013 (on file with the author).
108.
Akayesu, supra note 46.
109.
Krstić, supra note 44.
110.
See Closing Order, supra notes 35 and 103 and Duch Trial Judgment, supra note 103.
111.
See Duch Appeal Judgment, supra note 103.
112.
The ad hoc Tribunals also often refer to the preparatory works of the Genocide Convention.
113.
An introductory submission is a formal submission from the Co-Prosecutors requesting the Co-Investigating Judges to initiate judicial investigation. It defines the scope of investigation with against one or more named suspects, and a description of the alleged crimes to be investigated.
114.
Sixth Investigative Request of Co-Lawyers for Civil Parties Concerning the Charge of Genocide Against the Khmer Nationals, Nuon Chea and others (002/19-09-2007/ECCC-D349), Co-Lawyers for Civil Parties, 4 February 2010 (hereafter Request on Genocide Against the Khmer Nationals), § 10, quoting the Co-Prosecutors’ first Introductory Submission, § 2.
115.
Ratner et al. 2009, at 286–287.
116.
Forster 2012, at 189.
117.
See e.g., Schabas 2001, at 290; Simon 2007, at 119: ‘[T]he Khmer Rouge clearly did target a group type not found on the legal list. A key understanding of the Cambodian killings lies in recognizing that the Khmer Rouge targeted a specific group, namely, its political enemies.’
118.
B. Whitaker, Revised and Updated Report on the Question of the Prevention and Punishment of the Crime of Genocide, UN Doc. E/CN.4/Sub.2/1985/6, 2 July 1985, § 36.
119.
Forster 2012, at 10.
120.
Young 2010, at 6–8.
121.
See e.g., Judgment and Sentence, Semanza (ICTR-97-20-T), Trial Chamber III, 15 May 2003, § 317; Musema, supra note 60, §§ 161–163; Judgment, Blagojević and Jokić (IT-02-60-T), Trial Chamber I, 17 January 2005, § 667.
122.
Young 2010, at 10 (emphasis added).
123.
Krstić, supra note 44, § 557; Bagilishema, supra note 48, § 65.
124.
Bagilishema, supra note 48, § 65.
125.
Closing Order, supra note 35, §§ 205, 207.
126.
Ibid., § 178. But as some witnesses questioned by the CIJs explained, in fact, if a person did not simply adapt himself or herself to the regime’s rules, then he or she was automatically considered an enemy, see § 103.
127.
See e.g. ibid., §§ 192–204 which relate to purges ordered by the CPK in the Old and New North Zones and in the East Zone. That last one was particularly bloody, see e.g. Forster 2012, at 122–123.
128.
Question of the violation of human rights and fundamental freedoms in any part of the world, UN Doc. E/CN.4./SR.1510, 1979, at 7.
129.
Quigley 2006, at 127.
130.
Request on Genocide Against the Khmer Nationals, supra note 114.
131.
Ibid., § 15.
132.
Report of the UN Group of Experts, supra note 68, Annex, § 65 (emphasis added).
133.
See e.g. Hannum 1989, at 111–112; Ratner et al. 2009, at 321.
134.
Forster 2012, at 143.
135.
Akayesu, supra note 46, § 511.
136.
Nottebohm Case, judgment of 6 April 1955, ICJ Reports (1955) 4.
137.
Lisson 2008, at 1470.
138.
Ratner et al. 2009, at 198; see also Schabas 2001, note 1 at 291: ‘the fundamental difficulty with using the term genocide to describe the Cambodian atrocities lies with the group that is victim of genocide. Destruction of Khmers by Khmers simply stretches the definition too much.’
139.
Krstić, supra note 45, § 556.
140.
Schabas 2000, at 116.
141.
Boyle 2004, at 235.
142.
Lisson 2008, at 1470.
143.
Giry 2014.
144.
Ciorciari and Chang 2005, at 263.
145.
Closing Order, supra note 35, § 207.
146.
Boyle 2004, § 284.
147.
Judgment, Jelisić (IT-95-10-T), Trial Chamber, 14 December 1999, § 71.
148.
Judgment, Stakić (IT-97-24-A), Appeals Chamber, 22 March 2006, §§ 20–24 (emphasis added).
149.
Jelisić, supra note 147, § 70 (emphasis added). The International Criminal Tribunals have thereafter maintained that subjective approach, see supra notes 121 and 122.
150.
Krstić, supra note 45, § 561.
151.
Genocide Convention, supra note 42.
152.
Jelisić, supra note 147, § 66.
153.
Ambos 2009, at 846.
154.
Ieng Sary’s Supplemental Submission, supra note 43, § 29.
155.
Ambos 2009, at 834–835.
156.
Ieng Sary’s Supplemental Submission, supra note 43, § 29.
157.
Akayesu, supra note 46, § 498.
158.
Blagojević and Jokić, supra note 121, § 656.
159.
For a short review of these divergent views, see Ambos 2009, at 839–841.
160.
Greenawalt 1999, at 2266, 2270–2279.
161.
Ieng Sary’s Supplemental Submission, supra note 43, § 21.
162.
Akayesu, supra note 46, §§ 540–545; see also Ambos 2009, at 851: ‘In Akayesu, an accomplice to genocide in the sense of Article 2(3)(e) of the ICTRSt need not necessarily possess the special intent himself, but must only know or have reason to know that the principal acted with the special intent, because accomplice liability is accessorial to principal liability’ (emphasis added, footnotes omitted).
163.
Musema, supra note 60, § 182.
164.
Judgment, Brđanin (IT-99-36-T), Trial Chamber II, 1 September 2004, § 221: ‘the mens rea required for the superiors to be held responsible for genocide […] is that the superior knew or had reason to know that their subordinates (1) were about to commit or had committed genocide and (2) that the subordinates possessed the requisite specific intent’ (emphasis added).
165.
Ibid., § 709; see also Ambos 2009, at 853: ‘A member of a JCE III may be convicted for genocide if it was reasonably foreseeable for him that one of the objective acts of the genocide offence would be committed and that it would be committed with the genocidal intent’ (emphasis added, footnote omitted). On the question of JCE III generally, see Chap. 9 in this Volume.
166.
In 2010, the PTC ruled that JCE III was not part of customary international law in 1975 and is therefore not applicable at the ECCC, see Decision on Appeals Against the Co-Investigating Judges Order on JCE, Nuon Chea and others (002/19-09-2007/ECCC-D97/15/9), Pre-Trial Chamber, 20 May 2010. The Co-Prosecutors’ appealed the Case 002/01 Trial Judgment on the Trial Chamber’s holding on ‘the availability of JCE III as a mode of liability during the period of temporal jurisdiction of the ECCC’, see Co-Prosecutors’ Notice of Appeal of a Decision in Case 002/01, Nuon Chea and others (002/19-09-2007/ECCC-E313/3/1), Co-Prosecutors, 29 September 2014, § 3.
167.
Both the PTC and Trial Chamber have agreed that JCE is a form of commission under Article 29 ECCC Law and that general JCE liability was part of customary international law during the ECCC’s temporal jurisdiction, see ibid. In Case 001, the Trial Chamber found the accused guilty via the JCE II, see Duch Trial Judgment, supra note 102, § 510–516. In Case 002, the Trial Chamber found the accused guilty via the JCE I, see Case 002/01 Trial Judgment, supra note 21.
168.
Ardema 2006, at 61.
169.
In Case 002, the accused were indicted for genocide with both direct and accessorial modes of responsibility, see Closing Order, supra note 35, at 309–386.
170.
Akayesu, supra note 46, § 523.
171.
Musema, supra note 60, § 167; Judgment and Sentence, Rutaganda (ICTR-96-3-T), Trial Chamber, 6 December 1999, § 63: The genocidal intent is therefore ‘inferred on a case-by-case basis from evidence at trial’.
172.
See e.g. Jelisić, supra note 147, § 47: ‘specific intent […]. may, in the absence of direct explicit evidence, be inferred from a number of facts and circumstances, such as the general context, the perpetration of other culpable acts systematically directed against the same group, the scale of atrocities committed the systematic targeting of victims on account of their membership of a particular group, or the repetition of destructive and discriminatory acts.
173.
For a more comprehensive review of those factors and the corresponding jurisprudence, see in particular, Forster 2012, at 91–107 and Park 2011, at 153–175.
174.
Park 2011, at 152.
175.
See e.g. Request on Genocide Against the Khmer Nationals, supra note 114, § 3: ‘subsuming facts under the elements of crimes is the daily business of the judges’.
176.
Hannum 1989, at 111.
177.
Quigley 2006, at 140.
178.
Ibid.
179.
Forster 2012, at 77.
180.
Brđanin, supra note 164, § 700.
181.
See e.g., Jelisić, supra note 147, § 82.
182.
Sikirica, supra note 48, §§ 69–72.
183.
Closing Order, supra note 35, § 1342.
184.
Ciorciari and Chhang 2005, at 263: ‘Historians agree that most of the victims of the CPK atrocities were ethnic Khmer nationals, who comprised approximately 80 % of the population’; Jarvis and Fawthrop 2004, at 224.
185.
Closing Order, supra note 35, § 1342.
186.
Krstić, supra note 44, § 8. Interestingly, this jurisprudence was taken over by the International Court of Justice in Case Concerning the Application of the Convention on the Prevention and Punishment of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment of 26 February 2007, § 198.
187.
Jelisić, supra note 147, § 82.
188.
Nersessian 2010, at 45.
189.
Sikirica, supra note 48, § 89.
190.
Boyle 2004, § 247.
191.
Closing Order, supra note 35, §156.
192.
Ternon 1995, at 74–76.
193.
Closing Order, supra note 35, § 207 (footnotes omitted).
194.
See e.g., Judgment, Jelisić (IT-95-10-A), Appeals Chamber, 5 July 2001, § 49; Kayishema and Ruzindana, supra note 60, § 161; Judgment, Blaskić (IT-95-14-A), Appeals Chamber, 29 July 2004, § 694.
195.
Krstić, supra note 45, § 572: ‘It is conceivable that, although the intention at the outset of an operation was the destruction of a group, it may become the goal at some later point during the implementation of the operation.’
196.
Blagojević and Jokić, supra note 121, § 669.
197.
Quigley 2006, at 128–129; Hannum 1989, at 108–109.
198.
Request on Genocide Against the Khmer Nationals, supra note 114, § 26.
199.
Ibid., § 26.
200.
Ibid., § 30.
201.
Ibid., § 24 (emphasis added, footnotes omitted).
202.
Hannum 1989, at 89; Ponchaud 2001, at 70.
203.
Closing Order, supra note 35, §§ 227, 1417 (emphasis added). However, as the CIJs further noted, the ‘categories of so-called “enemies” continued to expand over time’.
204.
The ICTR in Akayesu, for example, emphasized that Tutsi women and children were targeted as well as men, and that these women and children were not generally combatants in the civil war between Hutu and Tutsi factions, see Akayesu, supra note 46, §§ 125, 128.
205.
See e.g. Kiernan 1996, at 26. According to B. Kiernan, ‘Khmer Rouge conceptions of race overshadowed those of class’.
206.
See e.g. Simon 2007, at 119: ‘The Khmer Rouge did not set out to eliminate impure races or despised ethnicities from their land. Rather, they became obsessed with the elimination of any political impurity, of any individual who belonged to the enemy’; Heder 2007, at 101–153. For Heder, the founding principle of the Khmer Rouge’s regime remains the Marxist-Leninist ideology inspired by the Chinese model: a specific project of rapid modernization which aimed at the glorious advent of the communist system in Cambodia. It is in the context of that radical political project that those who were perceived to be opponents were stigmatized in terms of ‘race’.
207.
Request on Genocide Against the Khmer Nationals, supra note 114, § 42.
208.
ECCC Internal Rules, Rule 56(1). The judicial investigation phase of the proceedings is confidential.
209.
Closing Order, supra note 35, §§ 1416–1418, 1421.
210.
Request on Genocide Against the Khmer Nationals, supra note 114, at note 7 referring to § 122(b) of the Co-Prosecutors’ first Introductory Submission.
211.
ECCC Internal Rules, Rule 67(1): ‘The Co-Investigating Judges are not bound by the Co-Prosecutors’ ‘submissions’’.
212.
Closing Order, supra note 35, § 210 (footnotes omitted).
213.
Ibid., § 740. Actually, as noted at ibid., § 210, ‘all religions were deemed to be reactionary’. Therefore, ‘[a]ll religion was prohibited by the CPK’.
214.
Ibid., § 210. Although, the Closing Order points out that ‘[h]igh figures in the Buddhist hierarchy were executed’, it seems that the CIJs have not been convinced that the Khmer Rouge had the intent to destroy that part of that group.
215.
Boyle 2004, § 247.
216.
Forster 2012, at 122.
217.
Kiernan 1996, at 464.
218.
Closing Order, supra note 35, § 207.
219.
Hannum 1989, at 86.
220.
Closing Order, supra note 35, § 207.
221.
Ibid., § 1369.
222.
Krstić, supra note 45, § 580: ‘[C]ustomary international law limits the definition of genocide to those acts seeking the physical or biological destruction of all or part of the group.’
223.
See Nersessian 2005.
224.
See Closing Order, supra note 35, § 211 (acts committed against the Cham group).
225.
Review of the Indictments Pursuant to Rule 61 of the Rules of Procedure and Evidence, Karadzić and Mladić (IT-95-5-R61 and IT-95-18-R61), Trial Chamber, 11 July 1996, § 94: ‘The intent may also be inferred from the perpetration of acts which violate, or which the perpetrators themselves consider to violate, the very foundation of the group—acts which are not in themselves in the list in [Article II of the Genocide Convention] but which are committed as part of the same pattern of conduct’ (emphasis added).
226.
Closing Order, supra note 35, § 1342: ‘36 % of the Cham people died during the Khmer Rouge regime which is compared to the average rate of Khmer deaths being an estimated 18.7 %’.
227.
Ibid., § 212.
228.
Ponchaud 2013, at 207–208; M. Lemonde, former international Co-Investigating Judge at the ECCC, ‘Juger, après le régime des Khmers rouges’ (Conférence exceptionnelle du séminaire public de recherche, Enfermement, Justice et Libertés, Paris, 19 February 2013).
229.
Closing Order, supra note 35, §§ 1335–1342.
230.
Giry 2014.
231.
Closing Order, supra note 35, § 213.
232.
Ibid., § 214.
233.
See e.g. Ponchaud 2014, at 42 note 9. The author notes that the Khmers have ‘a visceral and irrational hatred for their eastern neighbors’ (unofficial translation). For a brief history of the Khmer-Vietnamese relations, see C. Leonard, ‘Racism against Vietnamese thriving’, Phnom Penh Post, 26 January 1996, available at http://www.phnompenhpost.com/national/racism-against-vietnamese-thriving (visited 15 June 2015).
234.
Park 2011, at 145.
235.
Duch Trial Judgment, supra note 102, §§ 66–81.
236.
Closing Order, supra note 35, §§ 150–152.
237.
Ibid., § 154.
238.
Ibid., §§ 792 and 1349: Almost ‘all [remaining Vietnamese] died from the hands of the Khmer Rouge during the years from April 1975 to January 1979.’
239.
Krstić, supra note 45, §§ 564–65. The ICTY rejected the argument that the existence of a military conflict between forces necessarily negates an inference of genocidal intent from one group’s targeting of the other.
240.
Closing Order, supra note 35, §§ 791–840.
241.
Ibid., §§ 814–818.
242.
Giry 2014.
243.
The Khmer Krom minority group who has cultural and geographical ties to Vietnam, seem to have been violently targeted by the Khmer Rouge.
244.
ECCC Internal Rules, Rules 53 and 55(2); see Civil Parties Request for Supplementary Investigations Regarding Genocide of the Khmer Krom & the Vietnamese, Nuon Chea and others (002/19-09-2007/ECCC-D250/3), Co-Lawyers for Civil Parties, 13 January 2010.
245.
Internal Rules, Rule 55(2). Consequently, the scope of the judicial investigations led by the CIJs is defined by the selection of facts carried out in advance by the Co-Prosecutors. The concern of securing a manageable scope is an influential factor for the Co-Prosecutors. As noted by a former ICTR investigator, the extent to which ‘the prosecutor exercises his discretionary powers judiciously determines to a large degree the success or failure of international criminal tribunals.’ Côté 2006, at 134.
246.
Combined Order on Co-Prosecutors’ Two Requests for Investigative Action Regarding Khmer Krom and Mass Executions in Bakan District (Pursat) and the Civil Parties Request for Supplementary Investigations Regarding Genocide of the Khmer Krom & Vietnamese, Nuon Chea and others (002/19-09-2007/ECCC-D250/3), Co-Investigating Judges, 13 January 2010, § 9.
247.
Closing Order, supra note 35, § 1468. The CIJs refer to the forced transfer of the ‘Khmer Krom minorit[y]’. The lawyer of most Khmer Krom civil parties at the ECCC, Mohan, has noted that ‘an inspection of the Co-Prosecutors’ voluminous Introductory Submissions reveals that not a single paragraph is dedicated to the plight of the Khmer Krom at the hands of the Khmer Rouge. The Co-Investigating Judges are no better.’ See Mohan 2008, at 48.
248.
Before the ad hoc Tribunals, the investigations are led by the parties, i.e. the defense and the prosecutor.
249.
J. De Hamptinne, F. Roux and M. Lemonde, ‘Pour des juges d’instruction internationaux’, Libération Monde, 16 April 2009, available at http://www.liberation.fr/monde/2009/04/16/pour-des-juges-d-instruction-internationaux_552997 (visited 15 June 2015).
250.
Closing Order, supra note 35, § 1323.
251.
As it has already been mentioned, the crimes committed against the ‘new people’ for instance, have been characterized as crimes against humanity of persecution on political grounds, see Closing Order, supra note 35, § 1416–1418.
252.
Giry 2014.
253.
Forster 2012, at 140. The author notes that ‘the [CIJs] and the Co-Prosecutors deliberately passed on bringing [the issues concerning the targeting of groups within the Khmer majority] up. […] It can be assumed that charges involving these issues have not been brought in order to avoid […] controversial questions largely unexplored in the jurisprudence of other international criminal tribunals.’
254.
Ibid., at 173 (emphasis added).
255.
Lemonde, supra note 228.
256.
ECCC Internal Rules, Rule 98(1). See also Duch Appeal Judgment, supra note 103, § 128.
257.
Decision on Severance of Case 002 following Supreme Court Chamber Decision of 8 February 2013, Nuon Chea and others (002/19-09-2007/ECCC-E284), Trial Chamber, 26 April 2013, § 159.
258.
Ibid., § 161.
259.
ECCC Internal Rules, Rules 90, 91, 94.
260.
Ibid., Rule 12ter.
261.
ECCC Internal Rules, Rule 89bis provides that ‘before any Accused is called for questioning, the Co-Prosecutors may make a brief opening statement of the charges against the Accused. The Accused or his/her lawyers may respond briefly’. But Rule 89bis does not provide such a possibility to the civil parties. Such an ‘oversight’ may be explained by the fact that the opening statement practice stems from the common law system in which civil parties are not known.
262.
M. Guiraud (International Lead Co-Lawyers for the Civil Parties at the ECCC), ‘Public still unclear on the role of civil parties at the ECCC’, Phnom Penh Post (14 October 2014), available at http://www.phnompenhpost.com/analysis-and-op-ed/public-still-unclear-role-civil-parties-eccc (visited 15 June 2015).

References

Akhavan P (2012) Reducing Genocide to Law: Definition, Meaning, and the Ultimate Crime. Cambridge University Press, Cambridge
Google Scholar
Ambos K (2009) What does ‘intent to destroy’ in genocide mean? International Review of the Red Cross 91:833-858
Google Scholar
Ardema A (2006) The Crimes to be judged by the Extraordinary Chambers. In: Ciorciari J (ed) The Khmer Rouge Tribunal. Documentation Center of Cambodia, Phnom Penh, pp 57-79
Google Scholar
Ascensio, H (2010) Les groupes protégés par la Convention sur le Génocide. In: Yotopoulos-Marangopoulos A, Pazartzis P (eds) Le génocide revisité/Genocide Revisited, Bruylant, Athènes/Bruxelles, pp 45-61
Google Scholar
Bogdan A (2002) Cumulative Charges, Convictions and Sentencing at the Ad hoc International Tribunals for the Former Yugoslavia and Rwanda. Melbourne Journal of International Law 3:1-32
Google Scholar
Boyle D (1999) Quelle justice pour les Khmers Rouges? Revue trimestrielle de droit de l’homme 40:773-826
Google Scholar
Boyle D (2004) Les Nations Unies et le Cambodge, 1979-2003: Autodétermination, démocratie, justice pénale internationale. Panthéon-Assas Paris University II
Google Scholar
Ciorciari J, Chang Y (2005) Documenting the Crimes of Democratic Kampuchea. In: Ramji J, Van Schaack B (eds) Bringing the Khmer Rouge to Justice - Prosecuting Mass Violence Before the Cambodian Courts, Edwin Mellen Press, Lewiston, New York, pp 222-307
Google Scholar
Côté L (2006) International Criminal Justice: Tightening up the Rules of the Game. International Review of the Red Cross 88:133-144
Google Scholar
Etcheson C (2006) A ‘Fair and Public Trial’: A Political History of the Extraordinary Chambers. Open Society Justice Initiative, Phnom Penh, pp 7-24
Google Scholar
Forster T (2012) The Khmer Rouge and the Crime of Genocide – Issues of Genocidal Intent With Regard to the Khmer Rouge Mass Atrocities. Dike Verlag, Zurich/St. Gallen
Google Scholar
Giry S (2014) The Genocide That Wasn’t, The New York Review of Books www.nybooks.com/blogs/nyrblog/2014/aug/25/khmer-rouge-genocide-wasnt. Accessed 15 June 2015
Google Scholar
Greenawalt A (1999) Rethinking Genocidal Intent: The Case for a Knowledge-Based Interpretation. Columbia Law Review 99:2259-2294
Google Scholar
Hannum H (1989) International Law and Cambodian Genocide: The Sounds of Silence. Human Rights Quarterly 11:82-138
Google Scholar
Heder S (2007) Racism, Marxism, Labelling and Genocide in Ben Kiernan’s ‘The Pol Pot Regime’, The South East Asia Research 5:101-153.
Google Scholar
Jarvis H, Fawthrop T (2004) Getting Away With Genocide? Pluto Press, London
Google Scholar
Kiernan B (1996) The Pol Pot Regime: Race, Power and Genocide in Cambodia Under the Khmer Rouge - 1975-79. Yale University Press, New Haven, London
Google Scholar
Lemkin R (1944) Axe’s Rule in Occupied Europe. Carnegie, Washington
Google Scholar
Linton S (2007) Putting Cambodia’s Extraordinary Chambers Into Context. Singapore Yearbook of International Law 9:195-259
Google Scholar
Lisson D (2008) Defining ‘National Group’ in the Genocide Convention: A Case Study of Timor-Leste. Stanford Law Review 60:1459-1496
Google Scholar
Mohan M (2008) Reconstituting the “Un-Person”: the Khmer Krom & the Khmer Rouge Tribunal. Singapore Yearbook of International Law and Contributors 12:43-55
Google Scholar
Nersessian D (2005) Rethinking Cultural Genocide Under International Law. Human Rights Dialogue: ‘Cultural Rights’
Google Scholar
Nersessian D (2010) Genocide and Political Groups. Oxford University Press, New York http://www.carnegiecouncil.org/publications/archive/dialogue/2_12/section_1/5139.html. Accessed 15 June 2015
Google Scholar
Nouwen S (2006) Hybrid courts: The Hybrid Category of a New Type of International Crimes Courts. Utrecht Law Review 2:190-214
Google Scholar
Olivie A, Muwero H (2009) Textual Discrepancies in the Law on the Establishment of the Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed during the Period of Democratic Kampuchea and their Legal Consequences. International Human Rights Clinic, Seattle University
Google Scholar
Park R (2011) Proving Genocidal Intent: International Precedent and ECCC Case 002. Rutgers Law Review 63:129-191
Google Scholar
Ponchaud F (2001) Cambodge, année zero. Kailash, Pondichéry
Google Scholar
Ponchaud F (2013) L’impertinent du Cambodge, entretiens avec Dane Cuypers. Magellan & Cie, Paris
Google Scholar
Ponchaud F (2014) Brève histoire du Cambodge. Magellan & Cie, Paris
Google Scholar
Quigley J (2006) The Genocide Convention: An International Law Analysis. Ashgate, Aldershot UK
Google Scholar
Ratner S, Abrams J, Bischoff J (2009) Accountability for Human Rights Atrocities in International Law - Beyond the Nuremberg Legacy. Oxford University Press, Oxford
Google Scholar
Schabas W (2000) Genocide in International Law: The Crime of Crimes. Cambridge University Press, Cambridge
Google Scholar
Schabas W (2001) Problems of International Codification – Were the Atrocities in Cambodia and Kosovo Genocide? New England Law Review 35:287-302
Google Scholar
Sémelin J (2005) Purifier et Détruire, Usages politiques des massacres et génocide. Seuil, Paris
Google Scholar
Sher S (2004) Le Kampuchéa des ‘Khmers rouges’: Essai de compréhension d’une tentative de révolution. L’Harmattan, Paris
Google Scholar
Simon T (2007) The Law of Genocide: Prescriptions For a Just World. Greenwood Publishing Group, United States
Google Scholar
Sliwinski M (1995) Le génocide khmer rouge : une analyse démographique. L’Harmattan, Paris
Google Scholar
Ternon Y (1995) L’Etat criminel - Les génocides au XXème siècle. Seuil, Paris
Google Scholar
Van Schaak B (1997) The Crime of Political Genocide: Repairing the Genocide Convention’s Blind Spot. Yale Law Journal 106:2259-2291
Google Scholar
Williams S (2004) The Cambodian Extraordinary Chambers - A Dangerous Precedent for International Justice? International & Comparative Law Quarterly 53:209-227
Google Scholar
Young R (2010) How Do We Know Them When We See Them? The Subjective Evolution in the Identification of Victim Groups for the Purpose of Genocide. International Criminal Law Review 10:1-22
Google Scholar

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Mélanie Vianney-Liaud

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Vianney-Liaud, M. (2016). Legal Constraints in the Interpretation of Genocide. In: Meisenberg, S., Stegmiller, I. (eds) The Extraordinary Chambers in the Courts of Cambodia. International Criminal Justice Series, vol 6. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-105-0_10

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Legal Constraints in the Interpretation of Genocide