Proving Genocidal Intent: International Precedent and ECCC Case 002
63 Pages Posted: 13 Nov 2010 Last revised: 24 Oct 2011
Date Written: November 10, 2010
The Extraordinary Chambers in the Courts of Cambodia (ECCC) is poised to adjudicate Case 002, the groundbreaking trial of the senior surviving leaders of the Khmer Rouge. While the Khmer Rouge’s barbarous reign of terror is widely recognized as among the worst human rights tragedies of the 20th Century, as a formal legal matter, it is not clear that what occurred in Cambodia between 1975 and 1979 was “genocide.” The jurisprudence of genocide is unsettled, uncertain, and in flux; and the future trajectory of genocide jurisprudence will be greatly influenced by the ECCC’s disposition in Case 002.
This Article examines and distills international legal precedent on an issue that is likely to be critical to the ECCC’s examination of genocide charges in Case 002: establishing a criminal defendant’s genocidal mens rea by inference from the surrounding factual circumstances. In so doing, it identifies and explores four key factors that international tribunals have found relevant to determining whether genocidal intent is properly inferable: statements of the accused and his or her associates; the scale of atrocities in question; systematic targeting of the victim group; and evidence that atrocities were planned. The Article also seeks to assess and offer preliminary observations on the relative applicability of international precedent to the Cambodian context, specifically with regard to the breadth of atrocities ECCC Co-Prosecutors should seek to encompass under the rubric of genocide in Case No. 002.
On the basis of its doctrinal analysis, the Article concludes that genocide charges in Case 002 are fairly likely to succeed with respect to Khmer Rouge persecution of the Cham Muslim and ethnic Vietnamese minorities, but that any attempt by ECCC prosecutors to broaden the genocide framework so as to encompass Khmer Rouge persecution of the Buddhist and ethnic Khmer majorities would not be adequately rooted in existing doctrine, and would therefore face far more uncertain prospects for success. The Article then steps back to examine the wisdom of seeking to extend existing doctrine through broadly-formulated genocide charges. It speculates that, contrary to the assumptions of many within the human rights community, it is not at all clear that doing so would further the core objectives of international criminal law: justice and truth.
Keywords: ECCC, Extraordinary Chambers in the Courts of Cambodia, Genocide, Cambodia, International Criminal Law, Transitional Justice
JEL Classification: K33, K14
Suggested Citation: Suggested Citation