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Crimes for which Khmer Rouge leaders will be tried


(excerpts from the Report of the Group of Experts for Cambodia delivered to the General Assembly in 1999)

CRIMES UNDER INTERNATIONAL LAW

1. Genocide

- The 1948 Convention on the Prevention and Punishment of the Crime of Genocide declares genocide a crime under international law and obligates States to punish genocide that takes place on their territory. The Convention's definition of genocide has three main elements:
(a) The accused must undertake one of a series of heinous acts - killing, causing serious bodily or mental harm; deliberately inflicting conditions of life calculated to bring about physical destruction; imposing measures intended to prevent births; and forcibly transferring children from the group;
(b) The accused must do so against a "national, ethnic, racial or religious group";
(c) The accused must do these acts "with intent to destroy, in whole or in part," one of these groups "as such".

- Cambodia has been a party to the Convention, without reservation, since the Convention's entry into force in 1951.

- Evidence suggests the need for prosecutors to investigate the commission of genocide against the Cham, Vietnamese and other minority groups, and the Buddhist monkhood. As for atrocities committed against the general Cambodian population, some commentators have asserted that the Khmer Rouge committed genocide against the Khmer national group, intending to destroy a part of it.

2. Crimes against humanity

- The elements required to prove crimes against humanity include:
(a) The acts must involve one or more of a list of serious assaults on the individual, including murder, extermination, deportation, enslavement, forced labour, imprisonment, torture, rape, other inhumane acts and various types of persecutions;
(b) Those acts must be of a mass or systematic nature against a civilian population;
(c) The acts must be committed with a discriminatory motive based on the race, religion, political viewpoint or other attribute of the population;
(d) The acts must involve governmental action;

- Given the nature and extent of the Khmer Rouge atrocities, these elements appear relatively easy to prove.
(a) The historical and evidentiary record suggests cases of murder (rising to the level of extermination of political opposition), forced labour, torture and other inhumane acts. Regarding forcible transfers of population, the evidence suggests a cruel and unlawful means of accomplishing the plan, as well as an unjustifiable purpose aimed against the urban dwellers.
(b) Many of the acts appeared part of a deliberate, widely known governmental policy. At the same time, some have argued that many atrocities, especially those in outlying areas, lacked direction and amounted effectively to random cruelty.
(c) Under some important legal instruments defining crimes against humanity, motive is irrelevant for certain grave assaults on the person, such as murder or torture, so that many acts of the Khmer Rouge, even against those not seen as political enemies, would be covered.
(d) It would seem to follow from evidence of systematicity, since only the Government of Democratic Kampuchea had the control of the country needed to engage in these acts. Actions by regional authorities would also qualify, as would the implementation of policies through party channels, rather than formal state agencies, since the party controlled the State.

3. War crimes

- This area of law remains pertinent because certain Khmer Rouge atrocities took place in the course of warfare with other States, especially Viet Nam, as well as with certain domestic resistance forces, primarily during their last year and a half in power. At the same time, this aspect of Khmer Rouge activity constituted only a small portion of their human rights abuses.

- While the historical record clearly suggests their commission, the Group of Experts notes that, in establishing the International Tribunal for the Former Yugoslavia, the United Nations has set the important precedent that war crimes prosecutions should not be limited to one side in a conflict. The Group believe this would divert the attention of the court from the bulk of the atrocities, and thus believe war crimes should not be included.

4. Other acts incurring individual responsibility

- Forced Labor - incurs individual criminal responsibility under the 1930 Convention on Forced Labour, to which Cambodia was a party during the Khmer Rouge period.(32) The 1930 Convention criminalizes forced labour not conforming to certain limitations on age, number of days of work, working hours, non-transfer to areas dangerous to health and access to medical care.

- Torture - under customary international laws of the time of the Khmer Rouge's atrocities... the 1975 Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ... Its adoption by consensus by the General Assembly offers evidence of an emerging norm of international criminality as of 1975.

- Crimes against internationally protected persons - In April 1975, the regime detained personnel in the French embassy and then removed and murdered Cambodian husbands of foreign diplomatic personnel.


CRIMES UNDER DOMESTIC LAW

Crimes under domestic law will generally lack the special elements of many international crimes and thus be easier to prove.

The 1956 Penal Code covers the primary crimes recognized by most States. The most relevant crimes under Cambodian law may be summarized as follows:
- Homicide (articles 501-508);
- Torture (article 500);
- Rape (articles 443-46);
- Other physical assaults (articles 494-99);
- Arbitrary arrest or detention (articles 482-86);
- Attacks on religion (articles 209-18);
- Other abuses of governmental authority (articles 240-44).



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