August 7 was supposed to be judgment day for the last two leaders of the Khmer Rouge regime. Thirty-five years after the end of Pol Pot’s calamitous agrarian revolution, a United Nations-backed court in Phnom Penh found the movement’s chief ideologue Nuon Chea and the former president Khieu Samphan guilty of crimes against humanity and sentenced them to life in prison.
On the lawn in front of the courtroom on the outskirts of Phnom Penh, the mood was self-congratulatory. Deputy Prime Minister Sok An called the judgment “a milestone” for the court and for Cambodia, which rebuilt itself “from scratch after liberation from the genocidal regime, the regime of horror.” David Scheffer, the UN Secretary-General’s special expert to the court, said, “Today, the winds of international justice swept through the rice fields of Cambodia, through its cities, its villages, its forests.”
Finally, some were saying, the Khmer Rouge’s top echelon was being held accountable for a utopian folly that killed as many as two million people. For what the US Congress once described as “one of the clearest examples of genocide in recent history.” For what various American officials—Hillary Clinton, Steven Rapp, Samantha Power—have also called a genocide.
Except that neither Nuon Chea nor Khieu Samphan was convicted of genocide on August 7. And the tribunal will never even consider that charge in connection with the vast majority of the Khmer Rouge’s victims, the Khmer people, who make up 90 percent of the Cambodian population today. When the Extraordinary Chambers in the Courts of Cambodia, as this tribunal is formally called, does address genocide in a second phase of the leaders’ trial, it will do so only in relation to two Cambodian minorities: the Vietnamese and the Cham, a Muslim group.
This is an awkward development. Some 20,000 Vietnamese and 90,000 Cham are believed to have died under Pol Pot—compared to well over 1.3 million Khmer, according to the most conservative estimates. One Khmer woman, who lives in exile and travelled to Phnom Penh for the August 7 verdict, said that the court’s decision not to consider a genocide charge on behalf of the Khmer left her feeling like victims were being denied their “right to the precise term for what was done to us”—it was as though “history had not been understood.” For Ung Billon, another Khmer who is the president of a victims’ association in France called Les Victimes du Génocide des Khmers Rouges and who also came for the verdict, it was “an insult.”
And so even Cambodians who were relieved by the guilty verdicts and especially the life sentences, like these two women, were left feeling baffled, even betrayed, by the court’s handling of the genocide charge. This is only natural. “Genocide” has been the term of choice in Cambodia to describe Pol Pot’s regime for nearly four decades. It is the characterization favored in schoolbooks and the local news, by bureaucrats and lawyers.
In this respect at least, the ECCC is frustrating the very people to whom it was supposed to bring resolution, recognition, and reconciliation. Not only does the court’s narrow, technical definition of genocide clash with the widespread popular understanding of the crime, it also risks pitting different Cambodian communities against one another.
There is, in fact, a simple explanation for why most of the Khmer Rouge’s crimes, though widely thought to be a paradigmatic example of genocide, both inside and outside Cambodia, are not actually that: the 1948 Genocide Convention, which codified the concept into international law, deliberately ruled out its application to political pogroms and class war—the signal crimes of Stalin, Mao, and Pol Pot.
That treaty defines genocide as killings, among other acts, committed with the “intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such.” This idea built on the word “genocide” itself, a neologism combining genos (Greek for race or tribe) and cide (Latin for killing), which the Polish lawyer Raphael Lemkin proposed in 1944, well into the Holocaust, to denote the deliberate “destruction of a nation or of an ethnic group.” But the language adopted in the convention was also a compromise reflecting the power dynamics of the day. The Soviet Union, for example, opposed including “political” in the list of protected groups in the definition, presumably because it was wary of getting into trouble for purging its opponents back home.
The Khmer expression for genocide, prolai pouch-sas, seems to have first appeared when Cambodia ratified the Genocide Convention in 1950. But then it hardly was used, even within the learned elite; it appears neither in the 1956 Cambodian penal code nor in the 1966 reference dictionary of Khmer compiled by the scholarly monk Chuon Nath. And when the term became common in Cambodia, at least in official and formal written language, soon after the Vietnamese toppled the Khmer Rouge, it took on a meaning different from Lemkin’s original.
The Vietnamese communists, previously the Khmer Rouge’s patrons, marched into Cambodia in late 1978, after vicious incursions by Pol Pot’s forces into Vietnam and amid mounting evidence that his regime was self-destructing. The Khmer Rouge went underground, and in short order the Vietnamese tried some of the movement’s leaders in absentia, holding what they called “the trial of the genocide crime of the Pol Pot-Ieng Sary clique.” (Ieng Sary was the Khmer Rouge’s foreign minister then—and a defendant at the ECCC until he died last year.)
They turned the S-21 detention and torture center in Phnom Penh into a showroom of horrors, with advice from curators in Eastern Europe. A large sign calling the former prison the “Genocide Museum” was placed at its entrance and inmates’ clothes were displayed in mounds, an iconographic touch inspired by Nazi concentration camps.
All this made good political sense. The Vietnamese needed to justify their occupation of Cambodia, and they needed to do so while distinguishing the virtues of their communist ideology from the perversions of Pol Pot’s vision. What better way than to cast the Khmer Rouge regime as an aberrant form of communism and accuse it of genocide, the Nazis’ defining crime?
Propaganda became even more necessary as the Vietnamese’s lightning liberation turned into a lengthy occupation; their continued presence risked rekindling many Cambodians’ ancestral anxiety about Vietnamese expansionism—an anxiety so deeply engrained it had long been the fodder of terrifying children’s fairytales. Schools were supplied with new textbooks short on pedagogy and long on hyperbole. “The Pol Pot-Ieng Sary clique killed more than 3 million people and completely destroyed everything in Cambodia,” read one book intended for the second grade. “We are absolutely furious and strongly struggle against these atrocities.” January 7, the day in 1979 that Vietnamese troops seized Phnom Penh from the Khmer Rouge, became celebrated as Victory over Genocide Day.
However heavy-handed, the effort caught on. 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, according to Muny Sothara, a psychiatrist at the Transcultural Psychosocial Organization, an NGO in Phnom Penh that provides mental-health services, who has worked since 2007 with Khmer Rouge victims involved in the trials. Pol Pot’s minions had seemed intent on weeding out their enemies by “pulling them out roots and all,” as one creepy Khmer Rouge saying went. The movement often targeted a suspect’s entire family, group of colleagues, or community.
And so it was that almost as soon as the Khmer phrase for “genocide” came to mean anything to Cambodians, it meant something both broader and more precise than the destruction of a nation, ethnicity, race, or religion “as such”: it meant the Khmer Rouge’s attempt to exterminate Cambodians, mostly Khmer— their own group. (Kong Sothanarith, a forty-something news editor at Voice of America, told me recently, “It’s when I went into journalism that I realized the word meant almost exactly the opposite of what I had been taught.”) And the term took. The horror of the Khmer Rouge “genocide” was a rare matter on which Vietnamese occupiers and Cambodian occupied could agree.
When in June 1997 Prime Minister Hun Sen asked the United Nations for assistance setting up a court to prosecute the Khmer Rouge leadership, he, too, was hitching his political legitimacy to the overthrow of Pol Pot’s regime. He had some sketchy credentials to overcome. A junior Khmer Rouge commander who had defected to Vietnam, he had been brought to power by the occupation government in Phnom Penh. More recently—after the end of the cold war, the Vietnamese troops’ withdrawal from Cambodia, and a peace deal in 1991—he had finagled a way to come out on top of the 1993 UN-sponsored elections he had lost, eventually managing to sideline the rightful winner.
But his timing was right. During the 1980s, an era of the-enemy-of-my-enemy diplomacy, Western governments had been in favor of the Khmer Rouge holding Cambodia’s seat at the UN. And in Cambodia, for just a few years in the early 1990s, while national reconciliation was the order of the day and the government was trying to demobilize Khmer Rouge fighters, official talk of genocide had momentarily been uncouth; the word was even removed from a new series of schoolbooks. By the late 1990s, however, the Khmer Rouge were a tired guerrilla force, and Washington had started to condemn them consistently, using “genocide” to describe their atrocities, as some historians also had been doing. On April 30, 1994 -– while a bona fide genocide was raging in Rwanda—the US Congress passed the Cambodian Genocide Justice Act, which created the Office of Cambodian Genocide Investigations in the US State Department, which in turn created the Cambodian Genocide Program at Yale. The idea was to document the Khmer Rouge’s crimes and at some point prosecute them.
Very soon after that, the UN Security Council set up two tribunals to judge abuses committed when Yugoslavia and Rwanda imploded—the first international criminal courts since Nuremberg and the Tokyo trials. The notion of genocide finally had its day in court. (It had not be properly adjudicated before, not even at the “genocide” tribunal that had tried Pol Pot and Ieng Sary in 1979, which had used a legal standard of its own making.) Meanwhile, in France, Germany, Spain, and Ethiopia, legislators and judges were expanding the concept, sometimes specifically to cover the destruction of political groups. Some legal scholars were also trying to apply it to Cambodia: Pol Pot’s regime had committed a genocide against the so-called “new people,” those urbanites who were the prime enemies in its class war; its general onslaught against Cambodians, a national group, could be called an “auto-genocide.”
That the concept of genocide was stretched this way is a measure of the cachet and clout it had acquired by then. After all, there was no legal gap that needed filling: the Khmer Rouge’s crimes readily fell under other categories, like crimes against humanity (a widespread and systematic attack against civilians) or war crimes (severe mistreatment of certain combatants and civilians during a conflict). And most jurists would agree that international law establishes no formal hierarchy among mass crimes. But by the 1990s, genocide had a “super stigma,” according to Patricia Wald, a US Court of Appeals judge who served at the Yugoslavia tribunal. Or, as one chamber at the international court for Rwanda put it, it was the “crime of crimes.”
When it came to the Khmer Rouge, this development was only complicated by the peculiar political usage of “genocide” in Cambodia. In 1999, the UN Group of Experts that had been asked to figure out how best to try Pol Pot’s lieutenants—Pol Pot himself had died the year before—announced that it would not take a position on the “complex interpretive issues” surrounding “whether the Khmer Rouge committed genocide with respect to part of the Khmer national group.” And so when the ECCC came into being in 2006, genocide was included in its mandate (along with crimes against humanity, war crimes, and violations of the Cambodian penal code). And under the court’s civil law procedure, it would be up to two investigating judges to lead a factual inquiry and determine how to characterize any crimes they uncovered—a technical-seeming task fraught with high-stakes symbolism.
The Khmer Rouge leaders were arrested in 2007, and at first were charged only with crimes against humanity and war crimes. (There were four leaders at the time, but since then Ieng Sary has died and his wife, the Khmer Rouge minister for social affairs Ieng Thirith, has been declared unfit to stand trial because of dementia.) Genocide charges were brought two years later, and only in reference to the Vietnamese and the Cham. Marcel Lemonde, who was the international investigating judge back then, recently explained to me his office’s thinking on the issue. He said that “troubling facts” unearthed during the investigation suggested that the Khmer Rouge “may have intended to destroy the Cham as Cham rather than as political opponents, and to destroy the Vietnamese as Vietnamese rather than because the regime was at war with Vietnam.” Not so with the Khmer population. “To establish that a genocide occurred, a group needs to have been identified,” he explained, “and that group cannot be the quasi entirety of the population – otherwise the notion no longer makes sense.”
Still, it had been a difficult call. Lemonde and his Cambodian counterpart, You Bunleng, feared that pursuing a genocide charge exclusively on behalf of two small minorities would offend many survivors and victims’ families. But Lemonde said that he and You Bunleng, who was especially uncomfortable, decided they could not avoid the issue by dismissing the genocide charge altogether at that stage. Better to give it a full airing at trial and let the prosecution, victims’ representatives, and the defense debate its merits and its limits. Genocide, the ECCC’s marquee crime, had become a liability.
When the trial judges decided to segment the gigantic indictment into smaller parts and stagger them, they postponed the genocide issue to a later stage. (The recent verdict concerns only abuses pertaining to various forced population transfers and the execution of officials from the military government that the Khmer Rouge deposed in April 1975; the next phase of the trial, which is expected to start later this year, will include genocide, as well as crimes at certain work cooperatives and security centers, internal purges, and forced marriage.) Nuon Chea’s lawyers challenged that decision. In an appeal last year citing “the sheer gravity” of the genocide charge and its “special and privileged role” as “an encapsulation of the Khmer Rouge period in the public mind,” they asked that it be included in the first part of the trial. Whether they really saw an opportunity to win an acquittal or simply wanted to kick up some dirt, you know something is amiss when a defendant is clamoring to be prosecuted, and ASAP, for genocide.
The trial judges certainly face an awkward predicament, one more awkward still than the investigating judges did. They are damned if they rule there was no genocide against the Cham or the Vietnamese (meaning, there was no genocide at all). And they are damned if they rule there was a genocide (meaning, against some group other than the Khmer majority). Whatever they do, this internationally sanctioned court—which has cost some $220 million so far—will frustrate most Cambodian victims’ sense of what happened to them.
Nor is it clear that the two minorities stand to gain much from the special treatment. An eighty-four-year-old imam I met in 2011 in a small Cham village in Kompong Chhnang, a few hours north of Phnom Penh, complained that the Khmer Rouge had prohibited him from praying and forced him to eat pork. Yet he also said, “When it came to the beatings and the killings, no one suffered more than anyone else.” This view is common, says So Farina, a researcher at the Documentation Center of Cambodia, or DC-CAM, who has interviewed several thousand Cham over the past decade. Most Vietnamese, for their part, have no desire to stand out, especially against Khmer Cambodians, according to Long Danny, another DC-CAM researcher. Many are poor, some are stateless, and most would rather keep a low profile: anti-Vietnamese sentiment still runs very deep in Cambodia.
The perils of these paradoxes haven’t surfaced yet because the ECCC operates at a remove from daily life, and outside the court the same old talk of that other, generic kind of genocide still prevails. Educational and outreach efforts to parse the term’s legal and casual uses have been modest and mixed. DC-CAM, which was originally set up by Yale’s Cambodian Genocide Program to collect evidence of Khmer Rouge crimes, is credited with putting together in 2007 the first history book to describe the regime in any detail. The book largely forgoes the use of “genocide,” preferring to focus on facts, but the accompanying teacher’s manual uses the word liberally. And through its “Genocide Education” program, DC-CAM has been distributing posters with anti-“genocide” slogans to schools throughout the country. Even Muny Sothara, the counselor from TPO, and some victims’ lawyers have favored maintaining their clients in a state of constructive confusion.
How much longer can such obfuscating work? Thouch Féniés Phandarasar, a Khmer refugee living in France who testified at the trial last year and flew back to Phnom Penh for the judgment earlier this month, told me she hadn’t realized how the court was handling the genocide charges until the week before the verdict, when she was briefed on the second phase of the trial. And then she was “outraged,” she said. For her, “genocide” connotes extermination in a way that “crimes against humanity” cannot, and so “if the tribunal refrains from using the term, it must do so for everyone, rather than use it just for the Vietnamese and the Cham.” Ung Billon, the head of the victims’ association in France, told me, “This was a genocide between two political ethnicities: The communists killed us because we weren’t communists. So to be told that Khmer victims aren’t included in the genocide is unacceptable for me.”
One could argue that the long-awaited trial of the “Khmer Rouge genocide,” that oxymoron, will help clarify both the nature of communism and the notion of genocide by confronting the essentially political character of most of the Khmer Rouge’s crimes with the politically expedient origins of the legal definition of genocide. But it is a lesson that comes at a cost for the people the court was supposed to help, the victims, especially those who are most involved in its work.
There are also serious political risks. Accusing the Pol Pot regime of “genocide” just after it collapsed, in 1979, may have helped bridge the divide between Cambodians and the Vietnamese-backed government, but the use of the term by the ECCC today could revive old tensions between the two peoples. At the opening of the trial in late 2011, Nuon Chea issued repeated warnings about the Vietnamese threat to the Khmer nation—back in his day, since then, now. Those comments sounded to me like the defiant salvos of an unrepentant ideologue, a man defeated by history and yet congealed in the past. But someone apparently was worried that outside the courtroom they would play too well: state media were instructed to stop broadcasting the hearings live.
The Vietnamese question has only become more sensitive since. The legitimacy of Prime Minister Hun Sen was openly questioned in general elections last year, when he suffered his sharpest rebuke from voters to date. A leitmotif of the main opposition party’s campaign was a kind of “the Vietnamese are lurking” scare-mongering argument, pegged to illegal immigration and abusive land concessions. The party’s leaders routinely referred to the Vietnamese as yuon, which is considered to be derogatory, as they of course well know. These days there are frequent protests in front of the Vietnamese embassy in Phnom Penh, over the status of territory in the Mekong Delta that Vietnam obtained from the French during the colonial period and some Cambodians still claim is theirs.
Craig Etcheson, a leading Khmer Rouge scholar who was an investigator for the prosecution at the ECCC from 2006 to 2012, says that this xenophobia is precisely the reason that the court’s consideration of the genocide charge on behalf of the Vietnamese could be “a superb teaching moment.” More likely, though, it will be “a gigantic shitstorm.”
Many Cambodians, like other people who survive mass crimes, seem haunted by that question with no answer: “Why?” But a moment after first asking it they often repeat it with this characteristic twist: “Why did the Khmer Rouge try to exterminate Cambodians?” If only the Khmer Rouge had tried to exterminate an ethnic or national group other than their own—if only their central purpose had been to commit a genocide—then it might all make a bit more sense.