Hannum InternationalLawCambodian 1989 2

International Law and Cambodian Genocide: The Sounds of Silence
Author(s): Hurst Hannum

Source: Human Rights Quarterly , Feb., 1989, Vol. 11, No. 1 (Feb., 1989), pp. 82-138
Published by: The Johns Hopkins University Press
Stable URL: https://www.jstor.org/stable/761936
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HUMAN RIGHTS QUARTERLY
International Law and Cambodian

Genocide: The Sounds of Silence
Hurst Hannum
CONTENTS
PART I. THE FACT OF GENOCIDE

85
1. Introduction 85
2. Acts of genocide against ethnical and racial groups 86
3. Acts of genocide against religious groups 87
4. Acts of genocide against the Khmer national group 88
a. Killings 89
b. Serious bodily or mental harm 91
c. Deliberate infliction of conditions of life calculated to bring 92
about the physical destruction of the group in whole or in
part
d. The demography of death in Democratic Kampuchea 93
PART II. THE DELIBERATE KILLINGS AND DESTRUCTION

OUTLINED ABOVE CONSTITUTE GENOCIDE WITHIN
THE MEANING OF THE CONVENTION
94
1. Jurisdiction and admissibility 94
2. Recognition 99
3. Continuing nature of violations 101
4. Destruction of a group "in whole or in part" 102
5. The meaning of the phrase "national group" 103
Human Rights Quarterly 11 (1989) 82-138 o 1989 by The Johns Hopkins University Press

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1989 Cambodian Genocide 83
6. Intent 107
7. The provisions of the Genocide Convention should be 112
construed in a spirit consistent with the purposes of the
Convention
PART Ill. DEMOCRATIC KAMPUCHEA'S VIOLATION OF

OBLIGATIONS UNDER GENERAL AND CUSTOMARY
INTERNATIONAL LAW
114
1. Jurisdiction 114
2. Mass arbitrary killings 116
a. The facts 116
b. Mass arbitrary killings violate general and customary 117
international law
i. Customary international law already includes certain 119
human rights and humanitarian norms
ii. The prohibition against mass arbitrary killings is now 122
included within customary international law
(a) Respect for the right to life is a fundamental obligation 124
(b) The right to life is nonderogable 127
(c) Human rights treaties recognizing the right to life have 128
been widely ratified
3. Torture 129
a. The facts 129
b. Widespread systematic torture violates general and 131
customary international law
4. Conclusion 135
PART IV. FINAL OBSERVATIONS 135

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84 HUMAN RIGHTS QUARTERLY Vol.11
The atrocities that occurred in Democratic Kampuchea under the rule of

Pol Pot and the Khmer Rouge from 1975 to 1979 were, at first, dismissed
as only the rumors of refugees. Early reports of widespread killings often
were rejected as exaggerated or anticommunist diatribes.1 After the
defeat of the Khmer Rouge by the invading Vietnamese in 1979, however, it
became possible to investigate and confirm the existence of the "killing
fields," which touched almost every Cambodian family. In recent years,
many accounts of Democratic Kampuchea under Pol Pot have been
published,2 and today there can be little doubt of the scale of the crimes
committed.
Cambodia has been a party to the Convention on the Prevention and
Punishment of the Crime of Genocide3 since its entry into force in 1951
and accepted the compulsory jurisdiction of the International Court of
Justice in 1957. Yet there has been no effort to invoke the jurisdiction of
the Court in order to verify and condemn the violations of international
law committed by the Khmer Rouge government of Democratic
Kampuchea.
This article examines the feasibility of bringing an application to the
International Court of Justice, under the terms of Article IX of the
Genocide Convention or Article 36 of the Statute of the Court. It
concludes that such an application would be legally feasible and
politically desirable and that the failure of any state thus far to institute
proceedings before the Court is an indefensible abdication of
international responsibility.
The first part of this article considers in some detail the factual evidence
of genocide in Cambodia, countering the view expressed by some that,
however deplorable they might have been, the Khmer Rouge killings
were not technically "genocide." The second part outlines the elements
of a successful application under the Genocide Convention, including
questions of the Court's jurisdiction, the existence of a dispute between
an applicant state and Democratic Kampuchea, and whether the killings of
Cambodians themselves by the Khmer Rouge leadership constitute
genocide against a "national" group within the meaning of the
convention. The third part con siders the application under the Court's
compulsory jurisdiction, charging Democratic Kampuchea with violations
of customary international law and
1. See, e.g., J. Barron and A. Paul, Murder of a Gentle Land (1977); F. Ponchaud,
Cambodia Year Zero (1977).
2. Among the many books published or translated into English, see, e.g., E. Becker,
When the War Was Over (1986); K. Honda, Journey to Cambodia (1981); H. Ngor, A
Cambodian Odyssey (1987); S.H. Schanberg, The Death and Life of Dith Pran (1985);
W. Shawcross, The Quality of Mercy (1984); M. Vickery, Cambodia 1975-1982
(1984). The post-1979 period also saw publication of numerous well-researched articles
by Cambodian scholars such as Timothy Carney, Stephen H. Heder, and Ben Kiernan.
3. Convention on the Prevention and Punishment of the Crime of Genocide, opened for
signature 9 Dec. 1948, entered into force 12 Jan. 1951, 78 U.N.T.S. 277 (hereinafter
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cited as Genocide Convention).

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crimes against humanity, i.e., mass arbitrary killings and widespread sys
tematic torture.
PART I. THE FACT OF GENOCIDE4
1. Introduction
Democratic Kampuchea was the name given in 1976 to the country of

Cambodia, as it was previously known in English, by the Communist
Party of Kampuchea. The latter was widely known as the Khmer Rouge,
an armed revolutionary movement that seized control of the capital city
of Phnom Penh on 17 April 1975, after a five-year civil war.
The Khmer Rouge immediately began to implement a draconian plan
to transform Cambodian society, applying to the entire country measures
imposed since 1972 in provinces controlled by its forces. In their own
words, "The Khmer revolution has no precedent. What we are trying to
do has never been done before in history."5
These measures included the precipitate evacuation of all towns and
cities and the forced transfer of nearly half the country's population to
rural areas; the widespread use of forced labor to bring new areas under
agri cultural production; the abolition of money, markets, wages, and
salaries; the abolition of all private property, down to the level of a
family's cooking utensils, clothing, and personal effects; the disruption of
family life, including the separation of children from parents; the
destruction of organized religion and prohibition of religious practice; the
suspension of both traditional (re ligious) and modern (secular)
education; and the abolition of all previous government institutions and
substitution of party directives, circulars, and policies for the rule of law.6
The radical transformation of Cambodia envisaged by the Khmer
Rouge required the racial, social, ideological, and political purification of
the Cam bodian nation, through the sociological and physical liquidation
of a variety of groups considered to be irremediably tainted by their
association with the old social order or otherwise unsuited to the intended
new order. To achieve this goal, the Khmer Rouge government instituted
unremitting, ab solute dictatorship over a populace ruled by terror.
4. The factual information in the present article is largely drawn from the work of David
Hawk, Director of the Cambodia Documentation Commission in New York, who has
compiled extensive documentary, testamentary, and photographic evidence of the gen
ocide in Democratic Kampuchea under Khmer Rouge rule.
5. Statement of Ieng Sary, Foreign Minister of Democratic Kampuchea, quoted in
Chandler, Perceptions of Cambodian History, in Revolution and its Aftermath in
Kampuchea: Eight Essays 34 (D. P. Chandler & B. Kiernan eds., 1983).
6. See generally Becker, supra note 2; Ngor, supra note 2.

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86 HUMAN RIGHTS QUARTERLY Vol. 11
Article II of the Convention on the Prevention and Punishment of the

Crime of Genocide defines genocide as
any of the following acts committed with intent to destroy, in whole or in part,
a national, ethnical, racial or religious group, as such:
(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.
With the objective to purify Kampuchea and purge its people of "foreign"
influences, it was the policy of Democratic Kampuchea to eliminate
various groups "as such" which fall within the protections of the Genocide
Con vention.
2. Acts of genocide against ethnical and racial groups7
The most desperate people in Democratic Kampuchea were those targeted

for elimination because of their race, creed, or culture Alclitizens [of
Democratic
Kampuchea] had to be proper Khmers, as defined by the revolution. Part of
the Khmer Rouge mission was to revive the glory and honor of Cambodia
and to ensure the perenniality of the Khmer race, as Pol Pot himself said.
To that end, the Khmer Rouge adopted a philosophy of racial superiority and
purity that resembled that of Nazi Germany, including the use of pogroms to
eliminate minorities [They declared:]
There is only one Kampuchean revolution. In Kampuchea there is only one nation,
and one language, the Khmer language. From now on the various nationalities do
not exist any longer in Kampuchea.8
The Cham, a non-Khmer people of Malaya-Polynesian racial stock, are

the remnants of the Hinduized Kingdom of Champa. They lived apart
from the Khmer and had their own religion (Islam), language, and
distinctive dress. Beginning in at least 1973, the Khmer Rouge instituted a
harsh program of forced "Khmerization" in areas of Kampuchea under
their control, which was later extended to the entire country. In many areas
Cham communities were broken up and families dispersed among the
Khmer population. The
7. The major groups that Khmers considered to be distinct from themselves either racially
or ethnically were the Thai, Chinese, Vietnamese, and Cham. There were also smaller
numbers of Lao, Burmese, Indians, Pakistanis, and indigenous hill tribes collectively
called Khmer Leou.
8. Becker, supra note 2, at 253.

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distinguishing characteristics of Cham ethnicity were prohibited, including

speaking the Cham language, practicing Islam, and observing traditional
customs, such as marriage, birth, and funeral ceremonies.9
It is difficult to determine the precise number of Cham who died from
executions, massacres, and the conditions of life to which they were delib
erately subjected during Democratic Kampuchean rule because there is a
large variance in the estimates of the number of Cham in Cambodia before
1975. Cham survivors and refugees, however, estimate the pre-1970 Cham
population as 700,000 and the post-1979 population as approximately
200,000.10 If the previous Cham population was 500,000 to 700,000, that
would mean that fully one half or even more did not survive Khmer Rouge
rule.
The same prohibitions as those applied against expressions of Cham
ethnicity were rigorously applied to Cambodia's other ethnic minorities, the
Chinese, Vietnamese, and Thai. Such acts clearly fall within the prohibitions
of the Genocide Convention.
3. Acts of genocide against religious groups
Article II of the Democratic Kampuchean Constitution provided "the right

to worship according to any religion," but it also strictly prohibited "all
reactionary religions that are detrimental to Democratic Kampuchea and the
Kampuchean people." In practice, all religion and religious activity was
regarded as reactionary and was therefore "strictly prohibited."
The Khmer Rouge assault on religious groups fell most heavily on
Buddhism, which was the established state religion of Cambodia. 11
Buddhism was in fact much more than the state-sanctioned religion: it was
an integral element of traditional Cambodian life. Buddhism in Cambodia
embodied and transmitted culture, and many Cambodians speak of
Buddhism as the "soul" or "core" of Khmer culture and civilization. 12
Historically, when the Thai, Vietnamese, or French dominated Cambodia, it
was the Buddhist monkhood that resisted and preserved the Khmer
language.13
9. See Becker, supra note 2, at 261-63.

10. See Khmer People's National Liberation Front Bulletin No. 22, 25 April 1984, at 14 (on
file with the Cambodia Documentation Commission).
11. Other organized religions also were systematically attacked, although on a lesser scale
than was the case with Buddhism. No Catholic religious practices, such as mass or
confession, were allowed. The Catholic cathedral in central Phnom Penh was entirely
dismantled, and the few existing Protestant churches also were closed.
12. Y. Sam, Changes in Khmer Buddhism from 1954 to 1984, at 1, (Indochina Project, Social
Science Research Council, July 1985; mimeo) (on file with the Cambodia
Documentation Commission).
13. Id. at 2S.

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At the outset of the 1970 to 1975 civil war, the Khmer Rouge for
tactical reasons did not attack the Buddhist monkhood, and many monks,
especially those in rural areas, supported the Khmer Rouge because of its
alliance with Prince Sihanouk. In areas where the Khmer Rouge gained
early control of the population, however, they began to dismantle Buddhism
as early as 1973. Only two Buddhist holy days were permitted; religious
songs and dance were prohibited and replaced by political propaganda; and
religious ceremonies were forbidden, although the pagodas were not yet
closed to individual use.14
After the Khmer Rouge took power in 1975, "Buddhism was
subject[ed] to eradication in less than twelve months."15 Religious
observances, rituals, and practices were prohibited. The cooperative dining
hall replaced the wat
or temple as the ritual and ceremonial focus of social organization. Outside
the cities, the temples were destroyed or converted into warehouses, work
shops, or stables; some became prison-execution facilities. Buddha images
and other religious artifacts, statuary, books, and the monks' libraries were
·destroyed.The Sanga leadership, the most venerated monks, and those who
refused to disrobe or otherwise disobeyed orders were executed. Prior to
1975, there were approximately 60,000 monks in Cambodia; by late 1979,
almost a year after the Khmer Rouge were ousted from Phnom Penh, fewer
than 1,000 monks had survived and returned to their former monastery
sites.16 In 1978, Madam Yun Yat, the Democratic Kampuchean Minister
of Culture and Education, boasted to visiting Yugoslav journalists that
Buddhism was incompatible with the goals of the revolution and was "a
relic of the past, forgotten and surpassed."17 By the end of effective Khmer
Rouge rule in 1979, Buddhism had been completely destroyed as an
organized religion and its monks substantially destroyed physically. The
destruction of the Buddhist monkhood is precisely the kind of act the
Genocide Convention
was formulated to proscribe and prevent.
4. Acts of genocide against the Khmer national group
Democratic Kampuchea's leadership was determined to cleanse, purify, and

consolidate the Khmer national group-a grim reminder of the Nazi attempt
14. Quinn, The Khmer Krahom [Rouge) Program to Create a Communist Society in
Southern Cambodia, US State Dept. Airgram, 20 Feb. 1974, at 24-26 (on file with the
Cambodia Documentation Commission).
15. Sam, supra note 12, at 82.
16. Hearings on the Crime of Genocide, Senate Comm. on Foreign Relations, 99th Cong.,
1st Sess. 195 (1985) (statement of David R. Hawk).
17. Statement of Madam Yum Yat, quoted in UN Sub-Commission on Prevention of Dis
crimination and Protection of Minorities, Submission from Amnesty International under
Commission on Human Rights decision 9 (XXXIV), at 5, U.N. Doc E/CN.4/Sub.2/414/
Add.5 (1978).

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to purify and propagate the "master race." Just as the Nazi determination
to purify society extended beyond racial and ethnic groups to include, for
example, socialists and homosexuals, so did the national purification pro
gram of Democratic Kampuchea go beyond the elimination of ethnic and
religious minorities.
According to an Amnesty International report, the physical liquidation
of undesirables described as "worthless ones" that occurred in Kampuchea
included the massacre of entire families and villages and substantial per
centages of the population in some geographical areas. 18 These killings
cannot be dismissed as merely "political" but formed part of what the
Democratic Kampuchean government itself described as the purification of
the populace.19 The logic at work in Democratic Kampuchea was that "peo
ple were not eliminated because they were mistakenly considered traitors,
they were accused of treason because they were going to be eliminated." 20
Those eliminated were not merely "enemies," they were regarded as sub
human. In the archives of the Democratic Kampuchean extermination sys
tem, individual names are frequently prefixed by the adjective a-, meaning
"contemptible" or "wicked." The Khmer word used to mean "executed,"
kamtech, is literally translated as "smashed" or "smashed to bits," connoting
utter physical annihilation. "Death" is translated as "croak," ngoap, the
Khmer word for animal deaths as opposed to human deaths. The word used
in the prison archives for women prisoners is nhi, the Khmer word for she
animals, not female human beings.
a. Killings
Three distinct categories of deliberate killings occurred in Democratic

Kampuchea: waves of massacres; individual executions following impris
onment and interrogation; and arbitrary and summary executions. To an
extent, similar patterns can be seen in all three methods of state-sponsored
murder, and all were directed to the same goal: the relentless purge from
the Cambodian nation of elements deemed tainted and corrupted.
The first groups to be identified, isolated, and executed were the officer
corps of the defeated army, the higher ranking civil servants of the previous
two regimes, and, in some instances, their entire families. In 1976, corre-
18. Amnesty International, Political Killings By Governments 40 (1983).

19. "Political killings" by governments is sometimes confused with the killing of "political
groups" in discussions of the extent of protection provided by the Genocide Convention.
It is "political groups," as opposed to racial, religious, ethnical, or national groups, that
were excluded from the protection of the Convention. One could argue that all killings
(indeed, all acts) by a state or government are "political" in nature (as were killings by
the Nazis), but this would not immunize them from the reach of the Genocide
Convention.
20. Barnett, A Highly Centralized Dictatorship, in Chandler and Kiernan, supra note 5, at
224.

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sponding to what the Khmer Rouge identified as an intensification of the

class struggle, the more highly educated professional classes were targeted.
Later, to advance the progress of the new social order, the Khmer Rouge
leadership decided to purge the Cambodian nation of those they described
as having lingering attitudes of "privateness" or "propertyism" -attitudes
that should have disappeared with the abolition of markets and private
property and the dissolution of the capitalist classes. This was the theoretical
foundation for waves of massacres directed against Khmer Rouge cadres
and elements of the Cambodian peasantry.21
The most thoroughly documented regional purge occurred in the
Eastern Zone in 1978, in which an estimated minimum of 100,000 people
were executed in a six-month period.22 While some of those executed in the
Eastern Zone belonged to a recognizable political group judged disloyal by
Democratic Kampuchea's central leadership, far larger numbers of people
were killed because they were deemed to be tainted merely by having lived
under the jurisdiction of the presumedly disloyal political faction. The over
whelming number of those massacred were simple peasants or urban evac
uees without any particular political affiliation, who were not members of
any "political group" in the commonsense meaning of those words.
In addition to those destroyed in the expanding massacres directed
against successive segments of the populace, scores of thousands were in
dividually executed, usually following interrogation and torture, in a na
tionwide system of prison-execution centers. The apex of this nationwide
prison-execution system was S.21, the central prison-execution facility in
Phnom Penh. S.21, now known as "Tuol Sleng," was an extermination
facility operating under the direct control of Democratic Kampuchea's
highest lead ership. Only seven prisoners, whose skills were useful to the
prison authorities and the leadership, are known to have survived; twenty
thousand died.23 One of the last acts of the Democratic Kampuchea prison
officials before fleeing in January 1979 was to slit the throats of the
prisoners then chained to their interrogation cots; when Tuol Sleng was
discovered, pools of blood were still coagulating beneath their bodies.
Execution schedules recorded each day's work, and the highest daily
figure was 582 people executed on 27 May 1978.24 The composition of a
particular day's execution schedule usually reflected the mix of prisoners at
21. Hawk, supra note 4. See also Becker, supra note 2, at 181-334.
22. B. Kiernan, The Eastern Zone Massacres: A Report on the Social Conditions and
Human Rights Violations in the Eastern Zone of Democratic Kampuchea under
Communist Party of Kampuchea (Khmer Rouge) Rule (New York: Columbia University
Center for the Study of Human Rights monograph, 1986) (on file with the Cambodia
Documentation Com mission).
23. Hawk, Tuo/ Sleng extermination centre, 15 Index on Censorship 25 (no. 1, 1986).,
24. The daily execution records have been photocopied'and translated by the Cambodia
Documentation Commission.

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that time, but particular days were occasionally reserved to kill certain types
of prisoners. For example, 1 July 1977 was devoted to executing the im
prisoned wives and children of those killed previously; 22 July 1977 was
devoted to "smashing" people from the Ministry of Public Works. Because
the victims' names are identified by occupation and place of arrest, the daily
arrest and execution schedules make it possible to reconstruct the patterns
of killings by Democratic Kampuchea, as waves of victims washed through
the prison to their deaths.
The prison-interrogation-torture-execution facilities of Democratic
Kam puchea are so much more macabre than political prisons or torture
centers in other countries that the survivor accounts would be
unbelievable were it not for the extraordinary archival documentation. Such
extermination facilities are comprehensible-and only comprehensible-as an
integral part of a regime that is perpetrating genocide.
Finally, refugee and survivor accounts contain innumerable references
to killings by lower-level Khmer Rouge cadres, often intended as
punishments for minor infractions or "bad" attitudes, which served to ensure
Khmer Rouge control through indiscriminate terror.25 As a Khmer Rouge
slogan noted, tuk meun chamnenh, dak meun khat: "there is no profit in
keeping them; there is no loss in removing them.'' These arbitrary and
summary executions also are "killings" within the meaning of Article ll(a) of
the Genocide Convention and contributed to the partial destruction of the
Cambodian national group itself.
b. Serious bodily or mental harm
Two distinct forms of "serious bodily harm" within the meaning of the
Genocide Convention can be documented in Democratic Kampuchea: (1)
systematic torture and other ill treatment, and (2) exhaustion, malnutrition,
starvation, and disease resulting from the policy of forced labor combined
with deliberately restricted food distribution and medical care.
Widespread systematic torture routinely occurred within the prison
execution centers that operated throughout Democratic Kampuchea. 26 In
addition, foreigners working with Cambodian refugees and survivors have
encountered evidence of pervasive mental illnesses caused by the regime
of terror, murder, and repression to which Cambodians were subjected under
Khmer Rouge rule. Among other reports, one might cite two medical studies
undertaken respectively by the Division of Child Psychiatry and the De-
25. See, e.g., the account of Academy-Award winner Haing Ngor, supra note 2, at 213-27,
239-50, 298-311.
26. The deliberate nature of the practices instituted by the Khmer Rouge during this period
is well-illustrated by the Tuai Sleng "interrogators manual." See discussion infra note
185.

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partment of Psychiatry of the School of Medicine at the Oregon Health

Sciences University, which concluded:
In the last several years we have gradually become aware that there is
something different about the more recent Cambodian refugees. We were
used to hearing horror stories and almost unspeakable human tragedies, but
somehow the Cam bodians seemed unique. The amount of violence reported
in their lives was massive. The deaths and murders that they had seen seemed
both more numerous and wanton than those reported by other refugees.
The patients' horror stories are largely confirmed by other reports of the
situation in Cambodia under the Pol Pot regime from 1975 to 1979 The
experiences of
the Cambodian refugees reminded us of the Nazi concentration camps 27
Subsequent to the above study, teachers in the Portland, Oregon, school
system contacted doctors regarding some problems of Cambodian refugee
students. Of forty-eight children included in the resulting study, forty had
four years of "concentration camp-like experience," while six had had no
experience of living under the Democratic Kampuchea regime.28 Among
the forty with "work-camp" experience, 83 percent had been separated from
their families; 98 percent endured forced labor, often for fifteen hours per
day, seven days a week; 83 percent went without food for long periods of
time; and 68 percent described themselves as "looking like a skeleton."
Eighty percent lost at least one family member, and the average was three
members of the nuclear family who were lost and presumably dead.
Eighteen percent saw members of their family killed; 43 percent saw people
killed; and 38 percent said that they or their family members were beaten.
Half of the forty subjects were diagnosed as having posttraumatic stress
disorder.
The Genocide Convention identifies "mental harm to members of a
group" as a constituent part of the crime of genocide. The evidence outlined
above conclusively demonstrates that "mental harm" was a component of
Democratic Kampuchean rule and that this mental harm resulted from de
liberate policies. Moreover, these clinical studies of survivors of Democratic
Kampuchean genocide also corroborate the allegations of physical geno
cide-through executions, forced labor, and starvation-which an appli
cation to the International Court of Justice would seek to establish.
c. Deliberate infliction of conditions of life calculated to bring about
the physical destruction of the group in whole or in part
Under the Genocide Convention, genocide also may be committed by

deliberately inflicting "conditions of life" that destroy a group of people. In
27. The 'Concentration-Camp Syndrome' Among Cambodian Refugees, (1979) (on file with
the Cambodia Documentation Commission).
28. Kenzie, Sack, Angell, Manson, & Rath, The Psychiatric Effects of Massive Trauma on
Cambodian Children, 25 J. Am. Acad. of Child Psychiatry 377 (1986).

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Cambodia, more people died as a result of the conditions to which they

were deliberately subjected than from execution and massacre. A report of
the Lawyers Committee for Human Rights observes that "perhaps two to
three times as many victims succumbed to the fatal conditions they [the
Khmer Rouge] imposed on daily life. A relentless regime of slave labor was
imposed on a people who were severely weakened by avoidable starvation
and treatable diseases."29
These conditions included the separation of families, forced marches,
forced labor, induced starvation, and untreated disease, in many cases im
posed simultaneously. Large numbers of people were displaced and severely
overworked at the same time as food was deliberately restricted. Such
people became susceptible to sickness, disease, and death, particularly since
health care also was restricted as a matter of deliberate state policy.
The inadequacy of food rations in many parts of Cambodia led to the
starvation of scores of thousands. According to Cambodian scholars, how
ever, rice harvests throughout the years of Democratic Kampuchean rule
were very probably adequate to feed the population. By continuing to export
food and ignoring or refusing possible international food aid while people
starved, the government of Democratic Kampuchea is responsible for those
deaths that could have been prevented by allowing more food to remain
for domestic consumption, and for those deaths that occurred because no
food assistance was accepted or solicited.30
The destruction of existing health services, the killing of trained medical
personnel, and the restriction of medicine had predictable and foreseeable
consequences. The reservation of such limited modern medicines as were
available to the combatants and cadre of the regime (with the perverse
exception of reviving torture victims in the prison-execution centers) and
the refusal to solicit or accept adequate medical aid require that the gov
ernment of Democratic Kampuchea be held responsible for those deaths
from sickness and disease which could have been readily prevented.
d. The demography of death in Democratic Kampuchea
There can be no doubt that vast numbers of Cambodians died as a direct

result of Khmer Rouge policies-either through execution, torture, or some
combination of exhaustion, starvation, ordisease. The lack of accurate census
data and other conditions, however, prevent an exact quantification of deaths
under the Democratic Kampuchean government from 1975 to 1979.
A census conducted by the Vietnamese-backed Phnom Penh authorities
29. la\vyers Committee for Human Rights, Kampuchea: After the Worst 3 (198S).
30. Cf. UN Sub-Commission on Prevention of Discrimination and Protection of Minorities,
Study on the Right to Adequate Food as a Human Right (Asbjo/m Eide, Special Rapporteur),
U.N. Doc. E/CN.4/Sub.2/1987/23 (1987).

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in 1982 concluded that over 3,000,000 people died between 1975 and
1979. An earlier estimate by the post-1979 authorities of between two and
three million deaths was accepted by a Swiss UN official on a mission for
the Secretary General.31 A UNICEF representative concluded that a figure
of three million was "more or less true."32 A 1985 study prepared for the
UN Sub-Commission on Prevention of Discrimination and the Protection of
Minorities states that "at least 2 million people were killed by Pol Pot's
Khmer Rouge government of Democratic Kampuchea, out of total
population of 7 million."33
A survey conducted inside Cambodia, among a large group of Cam
bodian survivors, by a prominent Japanese journalist included in-depth in
terviews with suryivors and documented the deaths of immediate relatives
within 216 families.34 These findings confirm the experience of relief workers
and journalists that it is difficult to find a family that did not suffer deaths;
the Japanese survey found only four within its sample.
An even larger survey conducted of over 1,500 Cambodians who came
to the Thai-Cambodia border in 1980 in search of food during the famine
confirms the deaths of over 15,000 immediate family members.35 It found
a mortality rate of roughly 25 percent among urban Khmers (with deaths
divided almost equally between execution, starvation, and disease) and
15 percent among rural Khmers (with approximately 50 percent dying by
ex ecution, 25 percent by starvation, and 25 percent by disease).
Projected to cover the pre-1975 population, these ratios would indicate
that 1.5 to 2 million Cambodians were killed or died from the conditions of
life to which they were subjected.
While it may never be possible to establish a consensus on the exact
number of deaths in Cambodia, all of these numbers are staggering and
grotesque. Any of these estimates is more than adequate to meetthe
Genocide Convention's requirements as to proportionality, scale, or totality
of lives lost.
PART II. THE DELIBERATE KILLINGS AND DESTRUCTION OUTLINED

ABOVE CONSTITUTE GENOCIDE WITHIN THE MEANING OF THE
CONVENTION
1. Jurisdiction and admissibility
Cambodia acceded to the Genocide Convention on 14 October 1950,
with out reservation. Under the terms of Article XIV of the Convention,
the Con-
31. Shawcross, supra note 2, at 115-16.

32. Id.
33. UN Sub-Commission on Prevention of Discrimination and Protection of Minorities, Re
vised And Updated Report on the Question of Prevention and Punishment of the Crime
of Genocide (8. Whitaker, Special Rapporteur), U.N. Doc. E/CN.4/Sub.2/1985/6 at 10
n.17 (1985).
34. Honda, supra note 2.
35. Survey conducted by Stephen Heder (on file with Cambodia Documentation Commission).

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vention remains in force for successive periods of five years (following an

initial ten-year period) "for such Contracting Parties as have not denounced
it at least six months before the expiration of the current period." The
Con vention therefore will remain in force for Democratic Kampuchea and
all other current state parties at least until 12 January 1991.
Article IX of the Genocide Convention provides, in full:
Disputes between the Contracting Parties relating to the interpretation, appli
cation or fulfillment of the present Convention, including those relating to the
responsibility of a State for genocide or for any of the other acts enumerated in
Article Ill, shall be submitted to the International Court of Justice at the request
of any of the parties to the dispute.
There can be no doubt that the present case falls within the plain
meaning of Article IX, in that allegations that Democratic Kampuchea has
committed or been an accomplice in the commission of genocide relate
directly to the "application or fulfillment ... [or] responsibility of a State"
under the Convention.
Despite this clear provision in the Convention, the legal nature of the
Court's function limits the kinds of judgments it is able to render, even
when it may have jurisdiction over the parties.
It is the act of the Applicant which seises the Court but even if the Court, when
seised, finds that it has jurisdiction, the Court is not compelled in every case to
exercise that jurisdiction. There are inherent limitations on the exercise of the
judicial function which the Court, as a court of justice, can never ignore. There
may thus be an incompatibility between the desires of an applicant, or, indeed,
of both parties to a case, on the one hand, and on the other hand the duty of
the Court to maintain its judicial character. The Court itself, and not the parties,
must be the guardian of the Court's judicial integrity.36
With respect to the violations of the Genocide Convention by Demo
cratic Kampuchea outlined in Part I, however, there are no barriers to
prevent the Court's acceptance of jurisdiction.
The Court and highly qualified publicists have long recognized the
unique character of multilateral treaties such as the Genocide Convention,
in which mutual obligations are held erga omnes rather than being of a
contractual nature, as is the case with bilateral treaties. As the Court stated
in its Advisory Opinion on Reservations to the Genocide Convention:
The [Genocide) Convention was manifestly adopted for a purely humanitarian
and civilizing purpose. It is indeed difficult to imagine a convention that might
have this dual character to a greater degree, since its object on the one hand
is to safeguard the very existence of certain human groups and on the other to
confirm and endorse the most elementary principles of morality. In such a
convention the contracting States do not have any interests of their own: they
36. Northern Cameroons, Judgment, I.C.J. Reports 1963, at 15, 29.

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merely have, one and all, a common interest, namely, the accomplishment of
those high purposes which are the raison d'etre of the convention.
Consequently, in a convention of this type one cannot speak of individual
advantages or disadvantages to States, or of the maintenance of a perfect
contractual balance between rights and duties. The high ideals which inspired
the Convention pro vide, by virtue of the common will of the parties, the
foundation and measure of all its provisions.37
The oft-quoted judgment of the Court in the Barcelona Traction case

underscored that:
an essential distinction should be drawn between the obligations of a State

towards the international community as a whole, and those arising vis-a-vis
another State in the field of diplomatic protection. By their very nature the
former are the concern of all States. In view of the importance of the rights
involved, all States can be held to have a legal interest in their protection; they
are obligations erga omnes.38
While the present government of Democratic Kampuchea

recognized by the United Nations, the Coalition Government of Democratic
Kampuchea
{CGDK}, is not the same as the Khmer Rouge government responsible for
the commission of genocide in the period from 1975 to 1979, the Khmer
Rouge remains an integral part of the CGDK. While there are no allegations
that other members of the present CGDK39 were responsible for the
genocidal practices of the period from 1975 to 1979, the CGDK as an entity
has neither recognized that genocide was committed by the previous Khmer
Rouge government of Democratic Kampuchea nor has it taken steps to
punish those within its jurisdiction responsible for genocide.40 Leaders of the
Khmer Rouge government responsible for genocide continue to participate
actively and at the highest levels of the CGDK, and, while no application
under the Genocide Convention could directly establish the criminal
liability of any individual, the presence of such persons would be relevant
to the existence of a con-
37. Reservations to the Convention on the Prevention and Punishment of the Crime of Gen
ocide, Advisory Opinion, I.C.J. Reports 1951, at 15, 23 (emphasis added).
38. Barcelona Traction, light and Power Company, Limited, Second Phase, Judgment, I.C.J.
Reports 1970, at 3, 33 (emphasis added).
39. The other two members of the CGDK are the National United Front for an Independent,
Neutral, Peaceful and Cooperative Cambodia, headed until early 1988 by Prince
Norodom Sihanouk, and the Khmer People's National Liberation Front, led by former
Cambodian Prime Minister Son Sann.
40. The bulk of Cambodian territory is currently occupied by Vietnamese troops and ad
ministered by the self-styled Government of the People's Republic of Kampuchea,
headed by Heng Samrin. While it has accused the former Khmer Rouge Government
and the "Pol Pot clique" of genocide and conducted a "show trial" of Pol Pot and Ieng
Sary in 1979, it, too, has refused to punish others within its jurisdiction responsible for
genocide and crimes against humanity. Cf. reports of the trial submitted by Vietnam to
the United Nations, U.N. Docs. N34/568 (1979) and N34/569 (1979).

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tinuing dispute between a potential applicant state and Democratic Kam

puchea.41
In a more traditional bilateral or contractual context, the existence of a
dispute is to be established by objective evidence42 and does not necessitate
a formal diplomatic protest or exchange of notes. 43 "[T]he manifestation of
the existence of the dispute in a specific manner, as for instance by
diplomatic negotiation, is not required.... [l]t should be sufficient if the two
Govern ments have in fact shown themselves as holding opposite views
"44
In the Northern Cameroons case, the Court referred to "numerous in
terventions" by Cameroon in the United Nations General Assembly and its
Fourth Committee, as well as publication by Cameroon of a "White Book"
setting forth its objections to the plebescite at issue; diplomatic notes also
were exchanged. The Court concluded that "the opposing views of the
Parties as to the interpretation and application of relevant Articles of the
Trusteeship Agreement, reveal the existence of a dispute in the sense
recognized by the jurisprudence of the Court and of its predecessor.''45
Similarly, statements and diplomatic activity by a state which has con
demned human rights violations by the Khmer Rouge may be evidence of
a real and ongoing dispute with Democratic Kampuchea as to whether it is
responsible for genocide under the terms of the Genocide Convention. The
continuing failure by Democratic Kampuchean authorities to punish Pol Pot
and others within its jurisdiction for genocide would underscore the
existence of a continuing dispute between the parties as to "the
interpretation, appli cation or fulfillment'' of the Genocide Convention.
The Court may decline to exercise its jurisdiction if the matter
submitted to it calls for a judgment in abstracto or requests a decision when
no real controversy exists between the parties.46 However, neither of those
situations would obtain in an application against Democratic Kampuchea,
which seeks
(1) to interpret a multilateral treaty, binding on ninety-eight states, in the
light of a specific factual situation; and (2) to assess the continuing inter
national responsibility for genocide of Democratic Kampuchea, which has
41. One of the few recent reports on conditions under the Khmer Rouge in territory which
it now controls concludes that the Khmer Rouge's "continued stranglehold on political
and social freedom, as well as the purely pragmatic reasons behind its formal moderation,
suggest its continuing potential to revert to the more violent forms of control that
prevailed in the mid-1970s." Kampuchea: After the Worst, supra note 29, at 181.
42. Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, First Phase, Advisory
Opinion, I.C.J. Reports 1950, at 65, 74.
43. Northern Cameroons, Judgment, 1.C.J. Reports 1963, at15, 49 (sep. op. of Judge
Wellington Koo).
44. Interpretation of Judgments Nos. 7 and 8 (Factory at Chorzow), Judgment No. 11, 1927,
P.C.1.J., Series A, No. 13, at 10, 11.
45. Northern Cameroons, supra note 43, at 27.
46. See, e.g., Northern Cameroons, supra note 43; Nuclear Tests (Australia v. France),
Judg ment, I.C.J. Reports 1974, at 253; Nuclear Tests (New Zealand v. France),
Judgment, I.C.J. Reports 1974, at 457.

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refused to admit that its actions constituted genocide and continues to refuse
to punish those responsible.
In most cases considered by the Court involving the interpretation of
alleged breaches of a treaty, the treaty upon which jurisdiction was founded
specifically required that diplomatic negotiations be attempted before the
Court could be seised of a matter. In the Mavrommatis Palestine
Concessions case, for example, the relevant Mandatory Agreement in
dispute gave the Permanent Court jurisdiction over a dispute only "if it
cannot be settled by negotiation."47 The Trusteeship Agreement at issue in
the Northern Camer oons case also permitted reference to the Court of a
dispute only "if it cannot be settled by negotiations or other means."
Similar language-"any dispute
... which is not settled by direct diplomatic negotiation" -was involved
in the Interpretation of Peace Treaties case.46 No such requirement is found
in the Genocide Convention.
While the Court in Northern Cameroons decided that it could not ex
ercise jurisdiction because there was no legal controversy which could be
ultimately affected by the Court's judgment, it distinguished between a
treaty which was no longer in force and one that remained valid. "{T]he
Court observes that if in a declaratory judgment it expounds on a rule of
customary law or interprets a treaty which remains in force, its judgment has
a continuing applicability."49 The Genocide Treaty remains in force for
nearly 100 States, and its interpretation by the Court in the present case
obviously would be of "continuing applicability."
Finally, while the Court is competent to address only legal issues, it is
not barred from considering disputes which have a political, as well as a
legal component. Citing the Corfu Channel case,5° the Court recently ob
served that it "has never shied away from a case brought before it merely
because it had political implications or [even] because it involved serious
elements of the use of force."51
[NJo provision of the Statute or Rules contemplates that the Court should
decline to take cognizance of one aspect of a dispute merely because that
dispute has other aspects, however important. ...
[NJever has the view been put forward before that, because a legal dispute
47. Mavrommatis Palestine Concessions, Judgment No. 2, 1924, P.C.1.J., Series A, No. 2, at
11.
48. Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, supra note 42, at
73.
49. Northern Cameroons, supra note 43, at 37; accord Nuclear Tests (New Zealand v. France),
supra note 40, at 321 (joint diss. op. of Judges Onyeama, Dillard, Jimenez de Arechaga,
and Sir Humphrey Waldock).
50. Corfu Channel, Merits, Judgment, I.C.J. Reports 1949, at 4.
51. Military and Paramilitary Activities against Nicaragua (Nicaragua v. U.S.), Jurisdiction
and Admissibility, Judgment, 1.C.J. Report 1984, at 392, 435.

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submitted to the Court is only one aspect of a political dispute, the Court
should decline to resolve for the parties the legal questions at issue between
them. Nor can any basis for such a view of the Court's functions or
jurisdiction be found in the Charter or the Statute of the Court; if the Court
were, contrary to its settled jurisprudence, to adopt such a view, it would
impose a far-reaching and un warranted restriction upon the role of the Court
in the peaceful solution of international disputes.52
The Court has similarly held that "the fact that negotiations are being
actively pursued during ... proceedings [before the Court) is not, legally,
any obstacle to the exercise by the Court of its judicial function. 53 Nor is
the Court barred from considering a case which concerns a situation also
under consideration by the UN Security Council.54 A similar conclusion
would be warranted, mutatis mutandis, with respect to a situation that
might be under consideration by the UN General Assembly or other UN
political organs.
Thus, there are no barriers of admissibility to an application against
Democratic Kampuchea under the Genocide Convention. A judgment by
the Court in such a case would not be an abstract determination of hypo
thetical facts. Rather, it would (1) define certain acts as legally prohibited
by the Genocide Convention, thus providing guidance to other state
parties to the treaty; (2) prohibit the repetition of such acts by any future
Kampuchean government; and (3) require thatthose Democratic
Kampuchean government leaders responsible for genocide be
appropriately punished by any govern ment within whose jurisdiction they
may be found, as required by Articles IV and VI of the Convention.
2. Recognition
Some states have expressed fears that filing an application against

Democratic Kampuchea would imply recognition of the former Khmer Rouge
or present CGDK government, but these fears are clearly unfounded. In
the Corfu
Channel case, for example, the United Kingdom did not recognize the Al
banian government at the time, but the fact of nonrecognition was not raised
by either party or by the Court sua sponte, nor was any implication of
52. United States Diplomatic and Consular Staff in Tehran, Judgment, I.C.J. Reports 1980, at
3, 19, 20.
53. Agean Sea Continental Shelf, Judgment, I.C.J. Reports 1978, at 3, 12.
54. See United States Diplomatic and Consular Staff in Tehran, supra note 52, at 20-24
(neither Security Council actions nor the creation of a fact-finding commission by the
UN Secretary-General constituted an obstacle to exercise of the Court's jurisdiction in
the American hostages case); Paramilitary Activities against Nicaragua, supra note 51,
at 432-36, 438-41.

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recognition drawn from the British government's application. 55 Consistent

with this approach is the award in the 1923 Tinoco Concessions arbitration
(Great Britain/Costa Rica), which found that nonrecognition of the prede
cessor Tinoco government by the claimant state did not absolve the sub
sequent government of Costa Rica from responsibility for acts of the Tinoco
regime.56
It has been suggested that a signatory to the Optional Clause of the
Statute of the Court could not object to the Court's compulsory
jurisdiction on the grounds of nonrecognition. "[A]lthough positive
cooperative action is not possible between signatories or adherents of
political multilateral treaties who do not recognise each other, the fact of
non-recognition does not liberate them from the legal obligations under
the treaties."57 "L'activite
d'un gouvernement est imputable a l'Etat et engage sa responsabilite inter
nationale a la condition que le gouvernement controle effectivement
l'Etat. Aucune autre condition, et specialement la reconnaissance de ce
gouvernement par l'Etat Iese, n'est requise."58
Any case before the International Court of Justice is by definition
between states, not governments.59 While an application filed by state A
may nec essarily imply recognition of the state of Democratic Kampuchea
(whose existence is not questioned), it does not follow that recognition of
any par ticular government also is implied.
(TIhe doctrine of implied recognition has been more conspicuous in the
writings of authors than in the practice of States.... Recognition is primarily
and essentially a matter of intention. Intention cannot be replaced by
questionable inferences from conduct. Such inferences are particularly
inappropriate when the general attitude of the State in question points to its
continued determination to deny recognition.60
55. Corfu Channel, Preliminary Objection, Judgment, 1948, 1.C.J. Reports 1947-1948, at
15; Merits, Judgment, I.C.J. Reports 1949, at 4.
56. 1 U.N. Rep. lnt'I Arb. Awards 370 (1923).
57. T. Chen, The International law of Recognition 210-11 (1951). Chen also cites US dip
lomatic notes to the Soviet Union and China reminding them of their obligations under
the Kellogg Pact, although the United States maintained that adherence by the Soviet
government to the Pact did not constitute recognition of the latter by the United States.
Id. at 210.
58. J. Charpentier, la Reconnaissance Internationale et f'Evolution du Droit des Gens 52
(1956). ("The activity of a government is imputable to the State and engages its inter
national responsibility on condition that the government effectively controls the State.
. . . No other condition, and especially recognition of this government by the injured
State, is required.")
59. See art. 34 of the Court's Statute.
60. H. Lauterpacht, Recognition in International law 370-71 (1947). Accord I. Brownlie,
Principles of Public International law98 (2d ed. 1979); Kuyper, Recognition:
Netherlands Theory and State Practice, in 1 International law in the Netherlands 371--
403 (Panhuys, Heere, Jitta, Sik & Stuyt, eds. 1978); S.R. Patel, Recognition in the law of
Nations 98 (1959); G. van Glahn, law Among Nations 91 (4th ed. 1981); G.
Hackworth, cited in
M. Whiteman, 2 Digest of International law 48 (1963).

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The only occasions recognized by Lauterpacht as necessarily implying

recognition are the conclusion of a comprehensive bilateral treaty between
the two states; the formal initiation of diplomatic relations; and, in the case
of belligerency, a proclamation of neutrality or other unequivocal act.61
While no writer seems to have specifically addressed the issue of pro
ceedings before the Court, there is a consensus that among those acts that
do not imply recognition are participation in multilateral treaties, confer
ences, or organizations. Indeed, reservations to multilateral treaties in order
to remove any question of implied recognition are common.
Should the Court accept a particular government as representing Dem
ocratic Kampuchea and that acceptance is not challenged by an applicant
state, it is possible that the latter might be estopped from subsequently
questioning the legitimacy of that government, at least in the same forum.
No decision by the Court, however, could be interpreted as imputing rec
ognition of a respondent government to an applicant state, just as the seating
of a government by the General Assembly "shall not of itself affect the
direct relations of individual Member states with the state concerned." 62 In
any event, a specific statement to the effect that an application cannot be in
terpreted as affecting the legitimacy of any authority claiming to represent
Democratic Kampuchea or implying diplomatic recognition of any govern
ment by an applicant state would seem to be sufficient to preserve a state's
preapplication policy.
3. Continuing nature of violations
Article IV of the Genocide Convention stipulates:

Persons committing genocide or any of the other acts enumerated in Article Ill
shall be punished, whether they are constitutionally responsible rulers, public
officials or private individuals.
Those persons responsible for the genocidal acts described in this article
have not only not been punished, but many remain active in Kampuchean
and international public life and continue to hold positions of leadership in
the current CGDK government recognized by the UN. Having been driven
from Phnom Penh by a foreign military invasion, the most important
members
61. Lauterpacht, supra note 60, at 406; accord Chen, supra note 57, at 189-91.
62. U.N. G.A. Res. 396(V), 5 U.N. GAOR, Supp. (No. 20) 24, 25 (1950). The question of
which government would be recognized by the Court in the event that rival regimes
attempted to act as respondent might be answered by paragraph 3 of Res. 396(V), in
which the General Assembly recommends "that the attitude adopted by the General
Assembly or its Interim Committee concerning any such question [of which Government
represents a Member State) should be taken into account in other organs of the United
Nations and in the specialized agencies."

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of the Standing Committee of the Central Committee of the Communist

Party of Kampuchea (Democratic Kampuchea's highest policy-making
body), com manders of military units that perpetrated genocidal
massacres, and high officials of prison-extermination facilities remain in
the Thai-Kampuchea border region engaging in a guerilla war and
exercising de facto govern mental powers in areas under their control. So
long as the political organi zation and movement that perpetrated acts of
genocide remains active in Kampuchean political life, the acts of genocide
which occurred under Dem ocratic Kampuchean rule cannot be
considered merely historical. There is no statute of limitations on crimes
against humanity, including genocide. So long as those persons
responsible for planning, directing or committing acts of genocide have not
been punished, "whether they are constitutionally responsible rulers, public
officials, or private individuals," Democratic Kam puchea is in violation of
its obligations under Article IV.
Similarly, Democratic Kampuchea remains in violation of its legal ob-
ligations under Article V of the Genocide Convention, which provides:
The Contracting Parties undertake to enact, in accordance with their
respective Constitutions, the necessary legislation to give effect to the
provisions of the present Convention and, in particular, to provide effective
penalties for persons guilty of genocide or any of the other acts enumerated
in Article Ill.
The return to power of Pol Pot and the Khmer Rouge is prevented
only by a foreign military occupation that has been repeatedly and
overwhelm ingly condemned by the international community. 63 In areas
under their control, Khmer Rouge personnel continue to kill those
deemed disloyal or who are impediments to their goals.64 The threat of a
return to power in Kampuchea by the leaders responsible for genocide
makes urgently relevant the concerns enumerated in Articles I and Vil of the
Convention with respect to the prevention of genocide, in addition to the
prosecution of those re sponsible for genocide in the past.
4. Destruction of a group "in whole or in part"
To fall within the terms of the Genocide Convention, the destruction of a

group "as such" must be "in whole or in part." A 1978 study of the
Genocide
63. See, e.g., U.N. G.A. Res. 34/22, 14 Nov. 1979; Res. 36/6, 22 Oct. 1980; Res. 36/5, 21
Oct. 1981; Res. 37/6, 28 Oct. 1982; Res. 38/3, 27 Oct. 1983; Res. 39/5, 30 Oct. 1984;
Res. 40/7, 5 Nov. 1985; and Res. 41/6, 21 Oct. 1986. Also see U.N. Commission on
Human Rights Res. 29 (XXXVI), 11 Mar. 1980; Res. 11 (XXXVII), 6 Mar. 1981; Res.
1982/
13, 25 Feb. 1982; Res. 1983/5, 15 Feb. 1983; Res. 1984/12, 29 Feb. 1984; Res. 1985/
12, 27 Feb. 1985; Res. 1986/25, 10 Mar. 1986; and Res. 1987/6, 19 Feb. 1987. See
also United Nations, Report of the International Conference on Kampuchea, New York,
13- 17 July 1981 U.N. Sales No. E.81.120 (1981), Annexes I and II.
64. See Kampuchea: After The Worst, supra note 29, at 170-208.
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Convention, undertaken at the direction of the UN Commission on Human

Rights, noted:
On the question of the extent to which a group must be destroyed before an

act committed with that end in view can be termed genocide, it was generally
agreed, during the debate in the Sixth Committee, that it was not necessary for
the act to be aimed at a group in its entirety. It was sufficient that an act of
genocide should have as its purpose the partial destruction of a group. Ac
cordingly, an amendment (NC.6/228) proposing the insertion of the words "in
whole or in part" after the words "to destroy" in the draft of the Ad Hoc
Committee on Genocide was adopted. The purpose of the amendment was to
make it clear that it was not necessary to kill all the members of a group in
order to commit genocide.65
A subsequent UN study states:
Genocide need not involve the destruction of a whole group.... "In part"
would seem to imply a reasonably significant number, relative to the total of
the group as a whole, or else a significant section of a group such as its
leadership.
. . . In order that the gravity of the concept of genocide should not be devalued
or diluted by the inflation of cases as a result of too broad an interpretation, the
present Special Rapporteur suggests that considerations both of proportionate
scale and of total numbers are relevant. Other attacks and killings do, of course,
remain heinous crimes, even if they fall outside the definition of genocide.66
The acts of genocide outlined in Part I easily meet the standards set by
these two UN studies in order for acts of destruction and killing to be
considered genocide.
5. The meaning of the phrase "national group"
The fundamental rule of treaty interpretation is set forth in Article 31 of the

Vienna Convention on the Law of Treaties:
A treaty shall be interpreted in good faith in accordance with the ordinary

meaning to be given to the terms of the treaty in their context and in the light
of its object and purpose.67
This formulation is consistent with the practice of the Court and its prede
cessor, the Permanent Court of International Justice.
65. Study on The Question of The Prevention and Punishment of The Crime of Genocide
(N. Ruhashyankiko, Special Rapporteur), U.N. Doc.E/CN.4/Sub.2/416, at 14-15 (1978).
66. Whitaker, supra note 33, at 18.
67. Vienna Convention on the Law of Treaties, adopted 22 May 1969, entered into force 27
Jan. 1980, reprinted in United Nations Conference on the Law of Treaties, at 287, Official
Records, U.N. Doc. NCONF.39/11/Add.2 (1971), U.N. Sales No. E.70.V.5.

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(Words) must be read in their natural and ordinary meaning, in the sense which
they normally have in their context.68
[The Court] must seek the interpretation which is in harmony with a natural
and reasonable way of reading the text.69
It is a cardinal principle of interpretation that words must be interpreted in the
sense which they would normally have in their context, unless such
interpretation would lead to something unreasonable or absurd.70
Reference to the context of a provision requires that the Court pay
attention to every other provision of a treaty, and it must be assumed that
each word has a distinct meaning. With reference to the Charter of the
United Nations, for example, the Court has stated:
[The Charter must be) read as a whole so as to give effect to all its terms in
order to avoid inconsistency. No word, or provision, may be disregarded or
treated as superfluous, unless this is absolutely necessary to give effect to the
... terms read as a whole.7'
[Al legal text should be interpreted in such a way that a reason and a
meaning can be attributed to every word in the text. 72
The first clause of Article II of the Genocide Convention identifies "a
national, ethnical, racial or religious group" as within its scope. Applying
the principles set forth immediately above, it is clear that a national group,
such as the Khmer people of Kampuchea, falls within the ambit of Article
II of the Genocide Convention, whether or not such a group constitutes a
majority or a minority within a particular state.
That the Khmer people decimated by the government of Democratic
Kampuchea constitutes a "national group" within any generally accepted
definition of that term cannot be doubted. The Khmers have a distinct lan
guage and a political and social history that spans centuries, and they are
ethnically distinct from neighboring peoples. Whether or not they also con
stitute an ethnical or racial group within the meaning of Article II does not
detract from their status as a national group as well. Indeed, under the
injunction by the Court in the Anglo-Iranian Oil Co. case, the word
"national" must be given a different meaning than the other adjectives
utilized in the text, or it would be merely superfluous.
68. Constitution of the Maritime Safety Committee of the International Government

Maritime Consultative Organization, Advisory Opinion, I.C.J. Reports 1960, at 80.
69. Anglo-Iranian Oil Co., Judgment, I.C.J. Reports 1952, at 93, 194.
70. Polish Postal Service in Danzig, Advisory Opinion, 1925, P.C.1.J., Series B, No. 11, at
39.
71. Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter),
Advisory Opinion, 1.C.J. Reports 1962, at 151, 186 (sep. op. of Judge Sir Percy Spender)
(emphasis added).
72. Anglo-Iranian Oil Co., supra note 69, at 105 (emphasis added).

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The term "national minority" was widely understood by the drafters of

the Convention, as demonstrated in greater detail below, and the absence
of the term "minority" from the Convention must be presumed to be inten
tional. Any interpretation which seeks to equate "national group" with "na
tional minority" is inconsistent with the plain language chosen by the
drafters and cannot be sustained.
A simple hypothetical example demonstrates the absurdity of any in
terpretation which seeks to interject an implicit notion of "minority" into
the text: it is not unknown (or even uncommon) for a state to be politically
or militarily controlled by a minority of its population (or by foreign occu
pying forces) which may be ethnically distinct from the majority population.
In such a situation, could it possibly be argued that the mass killing of
members of the majority group by the ruling minority or occupying army
would not constitute genocide under the Convention? Such a result would
be absurd, so long as the other requisite elements of genocide-the intent
to destroy the group in whole or in part, and the fact that the majority
population constitutes a national, ethnical, racial, or religious group-also
were present.
If the Khmer national group falls within the ambit of Article II even
when it constitutes a majority in a given state, the question then becomes
whether the group allegedly committing or tolerating genocide must be
nationally, ethnically, racially, or religiously distinct from its intended
victims. A search of the text of the treaty reveals no such requirement;
indeed, there is no reference whatsoever to the nature of the "persons"
liable for punishment under Articles IV, V, and VI, nor is there any
limitation on the "state" re sponsible for implementing the treaty. As stated
in the 1985 United Nations Study on Genocide, "[i]t is noteworthy that the
definition [of genocide] does not exclude cases where the victims are part of
the violator's own group."73 There are, of course, important elements of
intent that must be proved before killing part of a national group, no matter
how heinous, falls within the scope of the Genocide Convention. Neither
the characteristics of the persons or state committing genocide nor the
majority or minority status of the victims is relevant, however. The Khmer
people constitute a "national group" within the plain meaning of Article II
of the Convention, and such a conclusion is consistent with both logic and
the language of the Convention
itself.
The Permanent Court has stated that "there is no occasion to have regard
to preparatory work if the text of a convention is sufficiently clear in
itself."74
73. Whitaker, supra note 33, at 16.

74. "Lotus," Judgment No. 9, 1927, P.C.I.J., Series A, No. 10, at 16; accord Jurisdiction of
the European Commission of the Danube, Advisory Opinion, 1927, P.C.I.J., Series B,
No. 14; Competence of the General Assembly for the Admission of a State to the United
Nations, Advisory Opinion, I.C.J. Reports 1950, at 4.

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Article 32 of the Vienna Convention provides that recourse may be had

to "supplementary means of interpretation, including the preparatory
work of the treaty and the circumstances of its conclusion, in order to
confirm the meaning resulting from the application of article 31" of the
Vienna Con vention or where the meaning is "ambiguous or obscure" or
"leads to a result which is manifestly absurd or unreasonable."75
While the meaning of the term "national group" set forth above should
be sufficiently clear so as not to require recourse to the travaux
preparatoires, inclusion of the Khmer people within the term "national
group" is, in fact, also consistent with the preparatory work which led to
adoption of the Genocide Convention.
A careful survey of the preparatory work of the Genocide Convention
including the meetings of the Ad Hoc Committee on Genocide established
by the Economic and Social Council in 1948, and the debates in the Eco
nomic and Social Council, Sixth Committee of the General Assembly, and
the General Assembly itself-reveals no specific vote or consensual decision
with respect to the term "national." There are, however, general references
to the terms "national" and "ethnical" and to the phrase "as such," as well
as discussions of cultural genocide and general consideration of those per
sons who should be protected under the Convention.
Distinctions between the rights of minorities as such and the rights of
groups under the Genocide Convention were considered during debates
over inclusion of the concept of "cultural genocide" in the Convention.
Several representatives linked the concept of cultural genocide directly to
the protection of minorities and thought that such questions were more
appropriate for consideration by the UN's Sub-Commission on Prevention
of Discrimination and Protection of Minorities. 76 Other delegations argued
that cultural genocide could destroy a group as effectively as physical gen
ocide and should therefore be included.77
The concept of cultural genocide was ultimately excluded from the
Convention by a vote of the Sixth Committee.78 While there were
undoubt edly many different reasons for the votes of various delegations,
the iden tification of "cultural genocide" with "minority" rights by some
delegations
75. Vienna Convention, supra note 67.

76. See, e.g., remarks of Rudzinski (Poland), UN Economic and Social Council, Ad Hoc
Committee on Genocide Summary Records [hereinafter cited as Ad Hoc Committee),
U.N. Doc. f/AC.25/SR.3 (1948) at 3; remarks of Ordonneau (France), id. at 9; remarks
of Mayhew (United Kingdom), 6 U.N. ESCOR (1948) at 146 (140th mtg.); and remarks
of Petren (Sweden), Amado (Brazil), and Setalvad (India), 3 GAOR, Part I, Sixth
Comm. Summary Records (1948) at 197-201 (83rd mtg.).
77. See, e.g., remarks of Bahadur Khan (Pakistan), Prez Perozo (Venezuela), Raafat (Egypt),
and Khomussko (Byelorussian S.S.R.) during debates in the Sixth Comm., supra note 76,
at 193-202 (83rd mtg.).
78. Sixth Comm., supra note 76, at 206 (83rd mtg.).

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supports the interpretation put forward herein that the concept of "national"
and other groups is not limited to minorities.
More specific discussions of the word "national" during the preparatory
work unfortunately do not clarify the term. As noted by the Egyptian rep
resentative, "[T)here had been no opposition to the national group,
although the idea of a national group was somewhat ambiguous." 79 The
Egyptian representative went on to refer to German and Polish minorities as
showing that "the idea of the national group is perfectly clear." 80 The Vene
zuelan delegate pointed out that "national groups were not listed in [General
Assembly] resolution 96 (I). Nevertheless, no delegation had argued that
they should be excluded from the convention."81
The debate over a Swedish amendment to add the term "ethnical" to
the list of protected groups supports a broad interpretation of the word
"national." As noted by the Soviet representative, "An ethnical group was
a sub-group of a national group; it was a smaller collectivity than the nation,
but one whose existence could nevertheless be of benefit to humanity."62
Some believed that there was no difference between an "ethnical" and a
"national" group63 or between "ethnical" and "racial" group.64 Nevertheless,
"ethnical" was added to the list of protected groups by a narrow margin.65
Despite a request early in the debate on Article II for a definition of the
term "national group,"86 the full committee did not judge further definition
to be required. In the context of the present application, however, nothing
in the travaux preparatoires is contrary to or incompatible with the propo
sition that the Khmer people of Kampuchea constitute a national group
within
the meaning of Article II.
6. Intent
In addition to the commission of acts which result in the physical destruction

of a group protected under the Genocide Convention, Article II requires that
79. Remarks of Raafat (Egypt), Sixth Comm., supra note 76, at 99 (74th mtg.).
80. Id. at 100.
81. Sixth Comm., supra note 76, at 113 (75th mtg.).
82. Id. at 106 (74th mtg.).
83. See, e.g., remarks of Kaeckenbeeck (Belgium), id. at 116 (75th mtg.).
84. See, e.g., remarks of Raafat (Egypt) and Manini y Rfos (Uruguay), id. at 115.
85. The Swedish proposal was adopted by a vote of 18 to 17, with 11 abstentions. Id. at
116.
86. Id. at 97 (73rd mtg.).

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to constitute genocide, the acts must be "committed with intent to destroy,

in whole or in part, a ... group as such." It is the intention to destroy the
group, in whole or in part, which distinguishes the international crime of
genocide from the domestic crime of murder.
Turning first to the text itself, the language seems straightforward: there
must be a specific intent to destroy wholly or partially a group qua group,
but the particular motive or motives behind that destruction are immaterial.
For example, destruction of a geographically distinct racial group as such
in order to secure national borders would constitute genocide, as would
destruction of a religious group because it was considered to wield too much
economic power or because its members were considered heretics.87
The words "in whole or in part" were added to the draft Convention in
the Sixth Committee by an amendment proposed by Norway. The amend
ment occasioned little debate88 and was adopted by a vote of forty-one to
eight, with two abstentions.89 While the Norwegian representative stated
that the amendment was not intended to change the sense of Article II, Mr.
Reid of New Zealand supported the amendment because it might imply
"that genocide had been committed even where there had been no intention
of destroying a whole group."90 Mr. Morozov of the Soviet Union supported
the amendment "on the grounds that it expressed an idea corresponding to
historical reality."91
On the other hand, the questions of intent and motive, and whether one
or both should form part of an enumeration of acts which constitute
genocide, were the subject of extensive debate at the Sixth Committee's
seventieth through seventy-eighth meetings.92 The draft by the Ad Hoc
Committee included, after enumeration of the groups protected, the phrase
"on grounds of the national or racial origin, religious belief, or political
opinion of its members"; a Venezuelan amendment eventually adopted
substituted the
87. See, e.g., remarks of Mr. Ordonneau (France) with respect to the enumerated motives
contained in the draft adopted by the Ad Hoc Committee:
The definition ... limited the groups which the Convention was designed to protect, but it in no
way limited the motive of the crime, insofar as it included in the idea of genocide certain actions
which might be taken against any group as such, not only for reasons of nationality, race or
religion, but also for other reasons, for example, national security or economic necessity The
difficulty
lay in the appraisal of the motives. In most cases, however, the facts themselves would provide a
sure basis for judgment. In his opinion, the best procedure would be to leave to the relevant judicial
authority the responsibility for deciding whether the guilty party was or was not guilty of genocide.
Mr. Azkoul (Lebanon) stated, "A distinction had to be drawn between acts which were
reprehensible in themselves, such as massacres, and those, the motives of which had to
be carefully weighed, such as restrictions on the use of a national language etc." (A
provision concerning cultural genocide was at that stage included in the draft
convention.) Ad Hoc Committee, at 5-7, U.N. Doc. E/AC.25/SR.12 & Corr.1 (1948).
88. See Sixth Committee debate, supra note 76, at 90-97 (73rd mtg.).
89. Id. at 97.
90. Id. at 94.
91. Id. at 95.
92. See, in particular, id. at 117-39.

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phrase "as such" for this specific listing of motives.93 An amendment by the
United Kingdom to delete the original phrase was withdrawn in favor of the
Venezuelan substitution.94
Little light as to any special interpretation which should be given to the
words "as such" is shed by the debates in the Sixth Committee. Compare,
for example, the following statements made during the Committee's
seventy seventh meeting:
Mr. Demesmin (Haiti): "The Venezuelan amendment could not be considered
by theCommittee sinceit did not include motives in the definition of thecrime."95
Mr. Chaumont (France): "[T]he French delegation was willing to withdraw its
amendment, it being understood that the Venezuelan amendment reintroduced
motive into the definition of genocide."96
Mr. Amado (Brazil): "[H]is delegation would vote for the Venezuelan
amendment because it did not include the motives for the crime, but stressed
the element of intention."97
Mr. Kaeckenbeeck (Belgium) supported by Mr. Maktos (United States): "mhe
Committee had to vote on the text of a proposal and not on the interpretation
of such text, whether that interpretation were given by its author or by other
delegations."98
The Chairman: "(D]elegations could vote only on the texts submitted to them.
Statements on the interpretation of those texts were of value only in respect to
the history of the convention."99
The Venezuelan amendment, to substitute the words "as such," was

adopted by twenty-seven votes to twenty-two, with two abstentions.100
The interpretation given to the words "as such" by the author of the
amendment is perhaps the fullest explanation of their import and deserves
to be cited at some length:
Mr. Perez Perozo (Venezuela) recalled that he had already stated (75th meeting)
that an enumeration of motives was useless and even dangerous, as such a
restrictive enumeration would be a powerful weapon in the hands of the guilty
parties and would help them to avoid being charged with genocide. Their
defenders would maintain that the crimes had been committed for other reasons
than those listed in [the Ad Hoc Committee's draft of] article II. Such
enumeration
93. Id. at 117, 133 (75th mtg.).

94. Id. at 12S (76th mtg.).
9S. Id. at 130 (emphasis added).
96. Id. at 132 (emphasis added).
97. Id. {emphasis added).
98. Id.
99. Id.
100. Id. at 133.

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was contrary to the spirit of General Assembly resolution 96(1). It was

sufficient to indicate that intent was a constituent factor of the crime.
He felt that his amendment should meet the views of those who wished to
retain a statement of motives; indeed, the motives were implicitly included in
the words "as such ... "
The purpose of both [the French and Venezuelan] amendments was to specify
that, for genocide to be committed, a group-for instance, a racial group-must
be destroyed qua group. . . . The aim of the amendment was to give wider
powers of discretion to the judges who would be called upon to deal with
cases of genocide. The General Assembly had manifested its intention to
suppress genocide as fully as possible. The adoption of the Venezuelan
amendment would enable the judges to take into account other motives than
those listed in the Ad Hoc Committee's draft.101
The suggestion at the next meeting of the Committee that a working group
be set up to clarify further the words."as such" was rejected by a vote of
thirty to fifteen, with three abstentions.102
In resolving the question of intent, therefore, the Court must
determine whether the intent of the government of Democratic
Kampuchea was to destroy, in whole or part, one or more of the groups
enumerated and pro tected under Article II of the Convention. The
motivation, excuse, or rationale which may have led to the decision by
Democratic Kampuchean authorities to destroy a group is immaterial, once
it has been established that destruction
of that group per se was intended-whether it be a religious, ethnical, racial,
or "tainted" national group. In the case of Democratic Kampuchea, these
groups were, in fact, destroyed to a great extent, giving further evidence of
the government's intent.
The "intent" required by the Convention as a necessary constituent
element of the crime of genocide cannot be confused with, or interpreted
to mean, "motive." "Despite difficulties in proving intent, the [Genocide]
Convention as written protects racial, ethnic, national and religious
groups from genocidal acts where the perpetrator claims only a political
motive."103 The leadership of Democratic Kampuchea may have had
permissible mo tives, but this cannot justify the destruction of protected
groups.104 The
101. Id. at 124-25, 131 (76th & 77th mtgs.) (emphasis added).
102. Id. at 139-42 (78th mtg.).
103. Le Blanc, The United Nations Genocide Convention and Political Groups: Should the
United States Propose an Amendment? 13 Yale J. lnt'I L. 268, 290 (1988).
104. With respect to the issue of motive, the international responsibility of Democratic Kam
puchea under the Genocide Convention should be distinguished from individual criminal
culpability. In the latter context, an individual's motive may be significant in determining
the dangerousness of an alleged criminal act. However, a criminal act will not generally
be excused by a lawful ultimate goal, so long as the intention to commit the acts deemed
criminal were present.
The objective international responsibility of a state "rests on the doctrine of the voluntary

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"intent" clause of Article II of the Genocide Convention requires only that

the various prohibited acts have a purposeful or deliberate character as
opposed to being accidental or unintentional.
Even were it to be considered that "motive" might, in some circum
stances, be relevant to the question of intentionally destroying a group, no
lawful motives by the Democratic Kampuchean government can be dis
cerned from the available evidence. The elimination of the Cham and
Bud dhist monkhood was not undertaken in order to pursue any legitimate
goal such as self-defense or a more equitable redistribution of wealth-but
to eliminate groups which were ideologically unacceptable to the
Democratic Kampuchean leadership. The torture and killing of scores of
thousands of members of the Khmer national group was not necessitated
by, e.g., legit imate requirements of national security or in order to
preserve a democratic government, but rather was motivated by a hatred
of alleged social and ideological impurity and a desire to create a new
Khmer nation.
It cannot be contended that the government of Democratic
Kampuchea intended every death that resulted from its draconian social
and economic policies. However, the consistency between internal
memoranda and public pronouncements of the regime and what actually
occurred throughout the country-the deterioration of social conditions and
increased violence and death as the government consolidated its control
over the provinces, the operation of extermination facilities under the direct
command of the highest state authorities, and the pervasive government
control over work and ag ricultural policies-indicates the deliberate
character of decisions taken at the highest levels of government.
The contention that groups such as the Buddhist monkhood or Cham
were primarily political groups and that their destruction therefore is not
covered by the Genocide Convention cannot be sustained. Even if
political motives coincided with the hatred of religion, "foreigners," and
ideological deviance, the targeted destruction of religious and ethnical
groups by the government of Democratic Kampuchea is precisely the
kind of "odious scourge"105 the Genocide Convention is intended to
prohibit.
With respect to the Khmer national group, there was obviously no in
tention on the part of the Democratic Kampuchean authorities to destroy
the Khmer group "in whole," as this would have implied their own demise.
Nevertheless, there was a clear intent to destroy the national group "in part,"
which becomes apparent when one analyses the scope and scale of the
act: provided that agency and causal connexion (sic) are established, there is a breach
of duty by result alone m hper a c t i c e of states and the jurisprudence of
arbitral
tribunals and the International Court have followed the theory of objective responsibility
as a general principle...."I. Brownlie, Principles of Public International law 423 (2d
ed. 1973) (citations omitted).
105. Genocide Convention, Preamble.
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destruction visited upon the Khmer people by the Khmer Rouge

government. The wholesale massacres of families, villages, and other
subgroups of the Khmer people provide persuasive evidence that the aim of
the Democratic Kampuchean government was not merely the elimination of
political op ponents or reform of the socioeconomic structure of the country,
but rather the wholesale remaking of the Khmer people according to a
deliberately imposed vision. If the Genocide Convention means anything, it
means that a state cannot destroy those parts of its own people that do not
conform sufficiently to the government's own view of social, racial, or
ideological purity.
As has been noted, "political" groups were not among those groups
protected by the Genocide Convention. Even if some killings perpetrated
by Democratic Kampuchea fall outside the scope of the Genocide
Conven tion because of the exclusion of political groups from the final text,
however, it is not consistent with the purpose, wording, or preparatory
work of the Convention simply to define one-seventh to one-third of the
population as "political" and thus beyond the Convention's scope. Nor is it
consistent with the purpose of the Convention to equate geographic
residency, language, religion, race, ethnicity, social status, or occupation
with membership in a political group, solely in order to avoid the
Convention's proscriptions.
In the only official analysis under UN auspices of the massive human
rights violations in Democratic Kampuchea, the Chairman of the UN Sub
Commission on Prevention of Discrimination and Protection of Minorities
concluded that the destruction of Kampuchean society by the government
of Democratic Kampuchea amounted to "nothing less than auto-geno
cide.11106 While "auto-genocide" as a term has no legal status, the terrible
reality it describes is what the Genocide Convention defines as the destruc
tion "in part" of a "national group."
7. The provisions of the Genocide Convention should be construed in

a spirit consistent with the purposes of the Convention
The Genocide Convention is a multilateral treaty and, like the United
Nations Charter, should be interpreted in a manner which will give effect
to its purposes. As previously noted by the Court:
106. U.N. Doc. E/CN 4/SR.1510 (1979) at 7. The report, Commission on Human
Rights,Analysis prepared on behalf of the Sub-Commission by its Chairman [A.
Bouhdiba] of materials submitted to it and the Commission on Human Rights under
decision 9 (XXX/V) of the Commission on Human Rights, U.N. Doc. E/CN.4/1335
(1979), was based in part on formal submissions by five governments and two NGOs,
contained in Sub-Commission
on Prevention of Discrimination and Protection of Minorities, Note by the Secretary
General, U.N. Doc. E/CN.4/Sub.2/414 and Adds. 1 (Canada), 2 (Norway), 3 (United
Kingdom), 4 (United States), 5 (Amnesty International), 6 (International Commission of
Jurists), 7 (Canada), and 8 (Australia).

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In the interpretation of a multilateral treaty such as the Charter which

establishes a permanent international mechanism or organization to accomplish
certain stated purposes there are particular considerations to which regard
should, I think, be had.
Its provisions were of necessity expressed in broad and general terms....
It may with confidence be asserted that its particular provisions should receive
a broad and liberal interpretation unless the context of any particular provision
requires ... something to compel a narrower and restricted interpretation.107
While the destruction of part of a national group by another segment

of that same national group may not have been specifically contemplated
by the drafters of the Genocide Convention, this unfortunate "innovation"
in the commission of genocide is not thereby automatically excluded.
Indeed, Mr. Morozov of the Soviet Union recognized during debates in the
Ad Hoc Committee that the Convention's terms must apply not only to
contemporary genocide but also "to any method that might be evolved in
the future with a view to destroying the physical existence of a group.108
As was true for the Mandatory Agreement concerning Namibia (then
South West Africa), the concepts embodied in the Genocide Convention
"were not static, but were by definition evolutionary "109
[l]nterpretation necessarily undergoes a process of development, and, as in

municipal law, must adapt itself to the circumstance of the time and to the
requirement, so far as they are foreseeable, of the future.110
The law can never be oblivious to the changes in life, circumstance and com
munity standards in which it functions.111
The fact that the exact number of deaths in Democratic Kampuchea

cannot be determined precisely does not detract from the responsibility of
the government of Democratic Kampuchea. Reasonable inferences as to the
extent of genocide in Democratic Kampuchea are not only permissible but
are required. As the Court stated in the Corfu Channel case:
[An Applicant state] is often unable to furnish direct proof of facts giving rise
to responsibility. Such a state should be allowed a more liberal recourse to
inferences of fact and circumstantial evidence. This indirect evidence is
admitted in all systems of law, and its use is recognized by international
decisions. It must
107. Certain Expenses, supra note 71, at 185.

108. Ad Hoc Committee, U.N. Doc. E/AC.25/SR.12 (1948) at 4.
109. Legal Consequences for States of the Continued Presence of South Africa in Namibia
(South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory
Opinion, 1.C.J. Reports 1971, 16, 31 [hereinafter Legal Consequences).
110. Id. at 184 (sep. op. of de Castro).
111. South West Africa, Second Phase, Judgment I.C.J. Reports 1966, 439 (dis. op. of Judge
Jessup).

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be regarded as of special weight when it is based on a series of facts linked

together and leading logically to a single conclusion.112
It is difficult to imagine a more persuasive "series of facts linked
together" than the evidence of murder and partial destruction of religious
and ethnical groups and the Cambodian national group itself than is
presently available with respect to the period of Khmer Rouge rule in
Democratic Kampuchea from 1975 to 1979. The single conclusion
required by this evidence is that Democratic Kampuchea has violated its
obligations under the Genocide Convention not to commit or tolerate
genocide.
PART Ill. DEMOCRATIC KAMPUCHEA'S VIOLATION OF OBLIGATIONS

UNDER GENERAL AND CUSTOMARY INTERNATIONAL LAW
1. Jurisdiction
Cambodia recognized as compulsory the jurisdiction of the International

Court of Justice by its declaration of 9 September 1957 under Article
36(2) of the Statute of the Court.113 The declaration remains in force, "on
condition of reciprocity" and subject to three exceptions: that an
application does not concern (1) a dispute concerning which the parties
have agreed to have recourse to some other method of peaceful
settlement; (2) a dispute con cerning a question which by international
law falls exclusively within the jurisdiction of Democratic Kampuchea; or
(3) a dispute excluded from ju dicial settlement or compulsory arbitration
by virtue of any treaty, conven tion, or international agreement to which
Cambodia is a party. None of these exceptions would be applicable to an
application which accuses Democratic Kampuchea of violations of
customary international law and crimes against humanity.
While the Court is not competent to determine any issue of individual
criminal liability, the issue of whether Democratic Kampuchea is responsible
as a state for crimes against humanity and gross violations of human
rights committed within its jurisdiction and at its instigation is clearly
within the Court's jurisdiction under Article 36(2)(c) of its Statute, i.e., to
establish the existence "of . . . [a] fact which .• . would constitute a
breach of an international obligation." If the facts summarized in Part I
disclose a violation of norms of general or customary international law, a
breach of Democratic Kampuchea's "international obligation" is ipso facto
established as well. A refusal by the Court to exercise its jurisdiction in
such a situation would be an impermissible abdication of its
responsibilities under Article 36.
112. Corfu Channel, Merits, Judgment, I.C.J. Reports 1949, at 4, 18.

113. I.C.J. Yearbook 1983-1984 (No. 38) at 62-63.

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As noted by the Court in the Barcelona Traction judgment, every state

has a legal interest in the obligations that a state owes erga omnes to the
international community as a whole.
Such obligations derive, for example, in contemporary international law,

from the outlawing of acts of aggression, and of genocide, as also from the
principles and rules concerning the basic rights of the human person,
including protection from slavery and racial discrimination. Some of the
corresponding rights of protection have entered into the body of general
international law; others are conferred by international instruments of a
universal or quasi-universal char acter.114
It is difficult to imagine more basic rights of the human person than the
right to life and freedom from torture, and any state (so long as the
application is not a sham or collusive) has the requisite interest in protecting
these rights to invoke the Court's jurisdiction. As a noted Soviet jurist
observes, "[T]he bonds between a state accepting a customary norm of
international law and the other states who already have recognized this
norm are basically identical with those bonds established among states with
the aid of an international treaty."115
As stated by the Court in the Mavrommatis Palestine Concessions case,
"A dispute is a disagreement on a point of law or fact, a conflict of legal
views or of interests between two persons." 116 Assertions that Democratic
Kampuchea violated norms of customary international law through state
directed gross violations of human rights during the period between 1975
and 1979, and Democratic Kampuchea's rejection of those assertions, would
clearly establish a dispute as to both legal and factual issues between an
applicant state and Democratic Kampuchea. "There is no principle or rule
of international law which requires the institution of proceedings to be
preceded by diplomatic negotiations, so that the failure of diplomatic ne
gotiations is the condition precedent to the jurisdiction of the Court."117
114. Barcelona Traction, supra note 38, at 32 (emphasis added) (citations omitted).
115. G.I. Tunkin, Theory of International Law 124 (Butler trans. 1974).
116. Mavrommatis Palestine Concessions, supra note 47, at 11.
117. S. Rosenne, 2 The Law and Practice of the International Court 513 (1965) (citations
omitted). Depending on the actual applicant state, a dispute might be established by
noting any representations by the applicant to Democratic Kampuchea regarding the
latter's responsibility for human rights violations. This might include, e.g., reference to
the 1978 submissions to the UN Commission on Human Rights by Australia, Canada,
Norway, and the United Kingdom and the Democratic Kampuchea government's
response thereto; subsequent statements with respect to recognition of any particular
Democratic Kampuchea government, which include references to human rights
violations; or refer ences to diplomatic negotiations over the withdrawal of Vietnamese
forces from Dem ocratic Kampuchea, insofar as an element in those negotiations is a
desire to prevent the return to power of those Khmer Rouge officials responsible for
massive violations of human rights.
In this context, reference to statements by other states and UN debates might also be

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2. Mass arbitrary killings
a. The facts
The nature and scope of killings carried out by the government of Dem
ocratic Kampuchea are summarized in Part I. Whether or not these killings
also constitute genocide under the terms of the Genocide Convention, their
mass and arbitrary nature cannot be doubted. Official estimates in reports
prepared by the United Nations range from one million 118 to "at least 2
million,"119 and the conclusions of these reports should be given great
weight by the Court.120
The notion of "arbitrary" killings injects a measure of objectivity into
the consideration of a state's actions. While some commentators have sug
gested that "arbitrary" is merely equivalent to "illegal," 121 the more well
reasoned majority view is that adopted by a special committee of the UN
Commission on Human Rights in 1964, in the context of a report on "ar
bitrary" arrest, detention, and exile:
Inhe Committee has come to the opinion that "arbitrary" is not synonymous
with "illegal" and that the former signifies more than the latter. It seems clear
that, while an illegal arrest or detention is almost always arbitrary, an arrest or
detention which is in accordance with law may nevertheless be arbitrary. The
Committee, therefore, ... has adopted the following definition: an arrest or
detention is arbitrary if it is (a) on grounds or in accordance with procedures
other than those established by law, or (b) under the provisions of a law the
purpose of which is incompatible with respect for the right to liberty and
security of person.122
relevant, as there is no requirement for specific bilateral negotiations to have taken place
between the applicant state and Democratic Kampuchea. "If ... [a dispute] is one of
mutual interest to many States, whether in an organized body or not, there is no reason
why each of them should go through the formality and pretence of direct negotiation
with the common adversary state after they have already fully participated in the
collective negotiations [or a collective debate in, e.g., the General Assembly, in which
respective positions are made known) with the same State in opposition." South West
Africa, Pre liminary Objections, Judgment, I.C.J. Reports 1962, at 319, 346.
118. Bouhdiba, supra note 106, at 10 n.12.
119. Whitaker, supra note 33, at 10 n.17.
120. Cf. the observation by the Permanent Court of International Justice that the Court "must
accept the findings of the [Special! Committees (of the League of Nations! on issues of
fact unless in the records submitted to the Court there is evidence to refute them."
Territorial Jurisdiction of the International Commission of the River Oder, Judgment No.
16, 1929, P.C.1.J., Series A, No. 23.
121. See, e.g., references contained in Study of the Right of Everyone to Be Free From Arbitrary
Arrest, Detention and Exile 5-7, U.N. Doc. E/CN.4/826/Rev.1, U.N. Sales No. 65.XIV.2
(1964) [hereinafter Arbitrary Arrest!; Dinstein, The Right to Life, Physical Integrity, and
Liberty, in The International Bill of Rights, The Covenant on Civil and Political Rights
130-31 (L. Henkin ed. 1981).
122. Arbitrary Arrest, supra note 121, at 7.

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The same analysis applies, mutatis mutandis, to the concept of "arbitrary"

killings.
One of the most striking aspects of the available evidence is the arbi
trariness of the killings perpetrated by the government of Democratic Kam
puchea. While the selection of victims may have been purposeful, in the
sense of implementing government policy to eliminate certain groups from
society, this purpose itself is illegitimate and certainly cannot justify the
resulting carnage. Even in the context of executions following detention,
one finds no reference to hearings, trials, or judicial proceedings of any kind.
The execution of spouses and children of so-called "enemies" demonstrates
the wanton disregard for human life which characterized Democratic Kam
puchean policy.
The destruction of entire families and villages in order to purify an
area or to destroy existing family, religious, or social structures also
constitutes an arbitrary deprivation of life. Without any pretence of
imposing legitimate punishment for crimes, the government accepted the
death by starvation and exhaustion of hundreds of thousands of Khmers
and others in pursuit of the Khmer Rouge's political, social, and economic
program.
No justification has ever been offered by the government of
Democratic Kampuchea for the mass arbitrary killings described herein,
nor has any credible evidence been presented which contradicts either
estimates of the massive number of deaths or the illegal and arbitrary
manner in which the killings occurred. The sole remaining question is
thus whether such mass arbitrary killings are prohibited under general
and customary international law.
b. Mass arbitrary killings violate general and customary

international law
A norm of customary international law is proved by demonstrating the

existence of two elements, state practice and opinio juris.
Not only must the acts concerned amount to a settled practice, but they must
also be such, or be carried out in such a way, as to be evidence of a belief that
this practice is rendered obligatory by the existence of a rule of law requiring
it. The need for such a belief, i.e., the existence of a subjective element, is
implicit in the very notion of the opinio juris sive necessitatis.'23
The first factor of customary law, which can be called its corpus, constitutes a
usage or a continuous repetition of the same kind of acts; in customary inter
national law state practice is required. It represents a quantitative factor of
customary law. The second factor of customary international law, which can
be called its animus, constitutes opinio juris sive necessitatis by which a
simple
123. North Sea Continental Shelf, Judgment, I.C,J. Reports 1969, at 3, 44.

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usage can be transformed into a custom with the binding power. It represents
a qualitative factor of customary law.124
State practice consists not only of the conduct of states through military,
trade, or other channels, but can also be evidenced through the actions
of international organizations.
The existence of international organizations, and in particular the United

Nations, means that there is an important new source of customary
international law. The decisions of such organizations, if taken with due
consideration and consistently adhered to, can afford abundant and easily
accessible evidence of the growth of international custom 125
The numerous and almost unanimous recommendations [of the General As

sembly) regarding apartheid and racial discrimination are made to the
Members of the United Nations, but the Court cannot overlook or minimize
their over riding importance and relevance.126
[T)he positions taken up by the delegates of States in international
organizations and conferences, and in particular in the United Nations,
naturally form part of State practice.127
mhe accumulation of authoritative pronouncements such as resolutions, dec

larations, decisions, etc., concerning the interpretation of the Charter by the
competent organs of the international community can be characterized as ev
idence of the international custom referred to in Article 38, paragraph l(b).128
General Assembly resolutions also may provide evidence of opinio juris,

even if they do not themselves create international law.
There would appear to be no objection of theory to the assertion that a General

Assembly resolution may be evidence of the opinio juris with regard to a
practice of which there is, apart from the resolution itself, adequate evidence
of usage.
It can certainly be accepted that a General Assembly resolution may contribute

to the crystallisation process, and thatthe existence of such a resolution
declaring, or purporting to declare, the law will require only comparatively
slight evidence
124. Id. at 175 (diss. op. of Judge Tanaka).

125. Statement of the Assistant Secretary-General in charge of Legal Affairs, quoted in 46
Proc. Am. Soc. Int'( L. 12, 13 (1952).
126. Legal Consequences, supra note 109, at 112 (sep. op. of Judge Padilla Nervo).
127. Barcelona Traction, supra note 38, at 302 (sep. op. of Judge Ammoun).
128. South West Africa, supra note 111, at 292 [diss. op. of Judge Tanaka). Among the
sources cited by Judge Tanaka in the context of the norm of nondiscrimination were the
Universal Declaration of Human Rights, Draft Declaration on Rights and Duties of
States, inter national covenants on human rights (which were then only in draft form),
Declaration on the Elimination of all forms of Racial Discrimination, and regional
treaties and dec larations. Id. at 293.

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of actual practice to support the conclusion that the rule in question has passed
into general customary [international] law.129
There are differing views as to the weight to be given to these respective

elements. Socialist jurists, for example, emphasize the need for recognition
of a legal obligation as constituting a kind of tacit consent by states to be
bound to a customary norm.130 Others, while not denying the requirement
of opinio juris, underscore that proof of this essentially subjective element
is generally evidenced by the objectively observable practice of states.
There is no other way [to demonstrate opinio juris] than to ascertain the
existence of opinio juris from the fact of the external existence of a certain
custom and its necessity felt in the international community, rather than to
seek evidence as to the subjective motives for each example of State practice,
which is some thing which is impossible of achievement.131
The essential problem is surely one of proof, and especially the incidence of
the burden of proof. The position is probably as follows. The proponent of a
custom has to establish a general practice and, having done this in a field which
is governed by legal categories, the tribunal can be expected to presume the
existence of an opinio juris. In other words, the opponent on the issue has a
burden of proving its absence.132
There is much to commend the view that opinio juris is presumptively present
unless evidence can be adduced that a State was acting from other than a sense
of legal obligation.133
i. Customary international law already includes certain human rights

and humanitarian norms
The International Court of Justice has already recognized that rules

concerning humanitarian or human rights norms are of the kind which
may mature into binding general or customary international law. With
reference to the Genocide Convention, the Court noted as early as 1951
that the principles underlying the Convention are principles which are
recognized by civilized nations as binding, even without any conventional
obligation.134 As noted above, the obligations which a state owes to the
international community as a whole, as distinguished from those it owes
to another state in the field of diplomatic protection, include the
principles and rules con-
129. H.W.A. Thirlway, International Customary law and Codification 66, 70 (1972).
130. See generally Tunkin, supra note 115, at 113-33.
131. North Sea Continental Shelf, supra note 123, at 176 (diss. op. of Judge Tanaka).
132. Brownlie, supra note 104, at 8 (citations omitted).
133. Baxter, Treaties and Custom, 129 Recueil des Cours 25, 69 (1970) (citations omitted}.
134. Reservations to the Genocide Convention, supra note 37, at 23.

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cerning basic human rights.135 Judge Riphagen noted more specifically that
"customary international law recognizes-in particular since the Second
World War-respect for fundamental human freedoms as an interest of the
international community."136
The linkage between the human rights provisions of the United Nations
Charter and the legal obligations of states is made clear in the oft-cited
dissent by Judge Tanaka in the South West Africa case:
From the provisions of the Charter referring to the human rights and
fundamental freedoms it can be inferred that the legal obligation to respect
human rights and fundamental freedoms is imposed on member States....
Furthermore, there is no doubt that these obligations are not only moral
ones, and that they also have a legal character by the very nature of the subject-
matter. Therefore, the legislative imperfections in the definition of human
rights and freedoms and the lack of mechanism for implementation, do not
constitute a reason for denying their existence and the need for their legal
protection.137
In the later Legal Consequences (Namibia) case, Judge Ammoun relied
upon, inter alia, the Universal Declaration of Human Rights, the United
Nations Charter, and resolutions of the General Assembly and Security
Council, in arriving at his conclusion that the right to equality is a binding
customary norm.
Although the affirmations of the [Universal] Declaration [of Human Rights) are
not binding qua international convention ... , they can bind States on the
basis of custom within the meaning of paragraph 1(b) of [Article 38 of the
Statute of the Court) ... because they constituted a codification of
customary law ... or because they have acquired the force of custom
through a general practice accepted as law 138
In the context of acts which harm another state, Judge Alvarez noted in
the Corfu Channel case that "acts contrary to the sentiments of humanity
committed by a State in its territory, even with the object of defending its
security and its vital interests," should be considered as "international de
linquenc[ies]," for which "there cannot be extenuating circumstances."139
Commentators and jurists agree that certain humanitarian or human
rights norms may form part of customary international law.
[TI here has been a movement away from unmitigated state sovereignty, war and
neutrality, and the old-world diplomacy of the League Covenant, toward equality,
universality, [and} fundamental human rights The general principles of
inter-
135. Barcelona Traction, supra note 38, at 32.

136. Id. at 337 (diss. op. of Judge Riphagen).
137. South West Africa, supra note 111, at 289-90 (emphasis added) (diss. op. of Judge Tanaka).
138. Legal Consequences, supra note 109, at 76 (sep. op. of Judge Ammoun).
139. Corfu Channel, supra note 112, at 45-46.

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national law, both customary and conventional, are undergoing a radical trans
formation through the work of the United Nations and its subsidiary organs and
agencies by a process which ensures broadly universal participation '40
The recently revised Restatement of the Foreign Relations Law of the
United States identifies seven specific human rights "whose status as cus
tomary law is generally accepted (as of 1987) and whose scope and
content are generally agreed."141 The Reporters' Notes state:
This section adopts the view that customary international law prohibits the
particular human rights violations indicated, if the violations are state policy.
This view is accepted by virtually all states; with the exception of the Republic
of South Africa in respect of apartheid, no state claims the right to commit
the practices set forth in this section as state policy, and few, if any, would
deny that they are violations of international law....
The practice of states has established the principles of this section in customary
law.... Clauses (a) through (e) ... reflect general principles common to the
major legal systems that may have been absorbed into international law.142
Other scholars assert that all of the rights set forth in the Universal
Declaration of Human Rights now form part of general or customary inter
national law.143 This interpretation is confirmed by the Proclamation of
Teheran, adopted by the International Conference on Human Rights in 1968,
and the statement adopted by the nongovernmental Assembly for Human
Rights which met in Montreal in the same year. The former proclaims that
the Universal Declaration "constitutes an obligation for the members of the
international community,"144 and the latter states that "[t]he Universal Dec
laration of Human Rights constitutes an authoritative interpretation of the
[UN] Charter of the highest order [,] and has over the years become a part
of customary international law."145
While there is no necessity in the present case to enter into a discussion
140. Elias, Modern Sources of International Law, in Transnational Law in a Changing Society:
Essays in Honor of Philip C. Jessup 67-68 (W. Friedman, L. Henkin, and O. Lissitzyn eds.
1972).
141. American Law Institute, 2 Restatement (Third) of Foreign Relations Law of the United
States § 702 and Comment (1988).
142. Id.,§ 702, Reporters' Notes at 167-68 (emphasis added).
143. See, e.g., Gros Espiell, The Evolving Concept of Human Rights: Western, Socialist and
Third World Approaches, in Human Rights Thirty Years after the Universal Declaration
45 (B.G. Ramcharan ed. 1979); Humphrey, The Universal Declaration of Human Rights:
Its History, Impact and Juridical Character, in id. at 37; R.B. Lillich and F.C. Newman,
International Human Rights: Problems of Law and Policy 65-66 (1979) (whether Dec
laration is part of customary international law or an authoritative interpretation of the
UN Charter "is of no particular significance within the international legal system");
Szabo, Historical Foundations of Human Rights and Subsequent Developments, in 1
International Dimensions of Human Rights 24 (K. Vasak and P. Alston eds. 1982).
144. Reprinted in United Nations, Human Rights: A Compilation of International Instruments,
at 18-19, U.N. Doc. ST/HR/1/Rev.1, U.N. Sales No. E.78.XIV.2 (1978).
145. Reprinted in 9 J. lnt'I Commission of Jurists 94, 95 (1968).

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of the existence and effect of peremptory norms of jus cogens, several com
mentators consider that fundamental human rights norms have acquired this
status.146
Among those human rights which have already been identified by the
Court, or at least by some of its members, as being protected under
customary international law are the prohibition against genocide;147
freedom from slav ery;148 the norm against racial discrimination and
apartheid;149 and the right to equality.1so Crimes against humanity,
including murder, extermination, enslavement, deportation, and other
inhumane acts, were found by the International Military Tribunal at
Nuremberg to violate existing customary
international law, a finding subsequently confirmed by the General Assem
bly.is,
ii. The prohibition against mass arbitrary killings is now included

within customary international law
Customary international law is in constant evolution, and its content

must be determined in light of contemporary legal developments. In both
the South West Africa and Legal Consequences (Namibia) cases, for
example, the Court was clear that the content and impact of the League
of Nations
mandate over South West Africa was to be determined as of the time of
the Court's deliberations, not as of 1920.
The primacy of the right to life in the international order for the protection
of human rights is self-evident; if it is not respected, those other rights
already deemed to fall within the scope of contemporary customary
international law-such as the right to equality and the prohibition against
slavery and systematic racial discrimination, as exemplified by apartheid-
would be come meaningless.
Respect for the right to life warrants special consideration, for it unquestionably
is the basis and support of all other rights.
However, unnecessary as it may seem to reiterate, the right to life may never
be suspended. Governments may not use, under any circumstances, illegal
or
146. See, e.g., Verdross, }us Dispositivum and jus cogens in International Law, 60 Am. J. lnt'I
L. 55, 59-60 (1966); M. McDougal, H. Lasswell and L. Chen, Human Rights and
World Public Order 338, 345 (1980). See generally Gormley, The Right to Life and
the Rule of Non-Derogability: Peremptory Norms of /us Cogens, in The Right to Life in
International Law 120 (B.G. Ramcharan ed. 1983); J. Sztucki, /us Cogens and the
Vienna Convention on the Law of Treaties (1974).
147. Reservations to the Genocide Convention, supra note 37.
148. Barcelona Traction, supra note 38, at 304.
149. Legal Consequences, supra note 109, at 57; Barcelona Traction, supra note 38, at 302-
04; South West Africa, supra note 111, at 291-93 (diss. op. of Judge Tanaka).
150. Legal Consequences, supra note 109, at 76 (sep. op. of Judge Ammoun).
151. G.A. Res. 95(1), U.N. Doc. A/64/Add.l (1945) at 188.

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summary execution to restore public order. This type of measure is

proscribed by the constitutions of the states and the international instruments
that protect the fundamental rights of persons.152
The right to life is not absolute, for a state may impose the death penalty
after conviction by a competent, independent tribunal and may, where
necessary, take life in defense of the rights of others (for example, while
using lawful force in the context of law enforcement) or in the exercise of
its inherent right to self-defense consistent with the principles of the United
Nations Charter. No principle of customary or conventional international
law, however, can justify or excuse the mass arbitrary killings which
occurred in Democratic Kampuchea, as outlined above.
While Democratic Kampuchea is not a party to a specific human rights
treaty which prohibits arbitrary deprivation of the right to life (with the
exception of the Genocide Convention and the Charter itself), the universal
protection of the right to life in widely ratified multilateral treaties is
evidence that the right has attained the status of customary international law.
As recognized by the Court in the North Sea Continental Shelf judgment:
There is no doubt that this process [by which a norm-creating treaty provision
has passed into the general corpus of international law so as to have become
binding on all States) is a perfectly possible one and does from time to time
occur: it constitutes indeed one of the recognized methods by which new rules
of customary international law may be formed. At the same time this result is
not lightly to be regarded as having been attained.153
Even "[t)reaties that do not purport to be declaratory of customary in
ternational law at the time that they enter into force may nevertheless with
the passage of time pass into customary international law."154
The existence of a considerable number of multi-lateral international treaties to
which all or almost all States are parties (i.e. general or universal international
treaties) and also extensive efforts in the field of codification of international
law have led to a situation when international treaties become a direct means
of changing, developing and creating new norms of general international law.155
Although set in the context of treaty interpretation rather than the iden-
tification of customary law, the following principles enunciated by the Court
are analogous to those which should govern the latter question:
mhe Court is bound to take into account the fact that the concepts embodied
in Article 22 of the Covenant [concerned with South Africa's mandate over
152. Inter-American Commission on Human Rights, Ten Years of Activities 1971-1981 331
(1982) (emphasis added) (citations omitted).
153. North Sea Continental Shelf, supra note 123, at 41.
154. Baxter, Treaties and Custom, supra note 133, at 25, 57.
155. G.I. Tunkin, Co-Existence and International law, 95 Recueil des Cours 1, 22 (1958).

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Namibia]- 'the strenuous conditions of the modern world' and 'the well-being
and development' of the peoples concerned-were not static, but were by
definition evolutionary fV]iewing the institutions of 1919, the Court must
take into consideration the changes which have occurred in the supervening
half-century, and its interpretation cannot remain unaffected by the subsequent
development of law, through the Charter of the United Nations and by way of
customary law.'56
The law can never be oblivious to the changes in life, circumstance and com
munity standards in which it functions As was said in the separate opinion
of Judge Sir Percy Spender in Certain Expenses of the United Nations ...:
A general rule is that words used in a treaty should be read as having the meaning
they bore therein when it came into existence. But this meaning must be consistent
with the purposes sought to be achieved ... [l)n the case of the Charter the
general rule above stated does not mean that the words in the Charter can only
comprehend such situations and contingencies and manifestations of subject-matter
as were within the minds of the framers of the Charter No comparable human
instrument in 1945 or today could provide against all the contingencies that the
future should hold.1s1
In the North Sea Continental Shelf case, a majority of the Court

found that the norm at issue (the equidistance principle) had not entered
into the realm of customary international law by virtue of its inclusion in
Article 6 of the Geneva Convention on the Continental Shelf. The Court's
reasoning was based largely on three factors: (1) the secondary nature of
the obligation of states to utilize the equidistance principle, which was
subsidiary to their primary obligation under the Convention to effect
delimitation by agreement;
(2) the possibility under the Convention of entering reservations to Article
6; and (3) the relatively limited number of ratifications and accessions to
the Convention, which the Court termed "respectable, [though] hardly suf
ficient."158 None of these objections is applicable to the present case.
(a) Respect for the right to life is a fundamental obligation
Human rights treaties are by their very nature "norm-creating" and thus
treat subjects appropriate for passage into the realm of general or customary
international law. Respect for the right to life is a primary obligation of
fundamental importance.
The right to life enunciated in article 6 of the [International) Covenant [on Civil
and Political Rights) ... is the supreme right from which no derogation is
permitted even in time of public emergency which threatens the life of the
nation....
156. Legal Consequences, supra note 109, at 31-32.

157. South West Africa, supra note 111, at 439 (diss. op. of Judge Jessup).
158. North Sea Continental Shelf Case, supra note 123, at 42.

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The Committee considers that States have the supreme duty to prevent wars,
acts of genocide and other acts of mass violence causing arbitrary loss of
life....
The protection against arbitrary deprivation of life which is explicitly required
by the third sentence of article 6 (1) is of paramount importance. The
Committee considers that States parties should take measures not only to
prevent and punish deprivation of life by criminal acts, but also to prevent
arbitrary killing by their own security forces. The deprivation of life by the
authorities of the State is a matter of the utmost gravity. Therefore, the law must
strictly control and limit the circumstances in which a person may be
deprived of his life by such au thorities.159
The fundamental nature of the right to life and to protection against
arbitrary killings is evidenced by the fact that it appears as one of the first
articles in every multilateral human rights convention, whether global or
regional in nature. These include the International Convention on the
Elim ination of All Forms of Racial Discrimination (Article S(b));160
International Covenant on Civil and Political Rights (Article 6); 161 Geneva
Conventions of 1949 (common Article 3);162 Protocol II to the 1949
Geneva Conventions (Article 4);163 European Convention for the
Protection of Human Rights and Fundamental Freedoms (Article 2);164
American Convention of Human Rights (Article 4);165 and African Charter on
Human and People's Rights (Article 4). 166 In addition, the primacy of the
right to life has been underscored in numerous nonconventional
declarations and other international instruments, including the Universal
Declaration of Human Rights (Article 3) 167 and the American Declaration
on the Rights and Duties of Man (Article 1).168
159. Human Rights Committee, General Comment under article 40(4) ofthe Covenant on
Civil and Political Rights, in Annual Report, 37 U.N. GAOR, Supp. (No. 40) 93 (1982)
(emphasis added).
160. Adopted 21 Dec. 1965, entered into force 4 Jan. 1969, 660 U.N.T.S. 195.
161. Adopted 16 Dec. 1966, entered into force 23 Mar. 1976, 999 U.N.T.S. 171.
162. Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in
Armed Forces in the Field, opened for signature 12 Aug. 1949, entered into force 21 Oct.
1950, 75 U.N.T.S. 31; Geneva Convention for the Amelioration of the Condition of
Wounded, Sick and Shipwrecked Members of Armed Forces at Sea,opened for signature
12 Aug. 1949, entered into force 21 Oct. 1950, 75 U.N.T.S. 85; Geneva Convention
Relative to the Treatment of Prisoners of War, opened for signature 12 Aug. 1949,
entered into force 21 Oct. 1950, 75 U.N.T.S. 135; Geneva Convention Relative to the
Protection of Civilian Persons in Time of War, opened for signature 12 Aug. 1948,
entered into force 21 Oct. 1950, 75 U.N.T.S. 287.
163. Protocol II Addition to the Geneva Conventions of August 12, 1949, and relating to the
Protection of Victims of Non-International Armed Conflicts, opened for signature 12
Dec. 1977, entered into force 7 Dec. 1978, U.N. Doc. No. N32/144 (1977).
164. Signed 4 Nov. 1940, entered into force 3 Sept. 1953, 312 U.N.T.S. 222.
16S. Signed 22 Nov. 1969, entered into force 18 July 1978, O.A.S.T.S. No. 36, p. 1, O.A.S.
Off Rec. OENSer.lJV/11.23, doc. 21, rev 6.
166. Adopted 27 June 1981, O.A.U. Doc. CAB/LEG/67/3 Rev. 5, entered into force 21 Oct.
1986.
167. Signed 10 Dec. 1948, G.A. Res. 217A(III}, at 71, U.N. Doc. N810, (1948).
168. Signed 2 May 1948, O.A.S. Off. Rec. OENSer.LN/11.23, doc. 21, rev. 6.

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The region most afflicted in recent years by the phenomenon of arbitrary

killings masquerading as "disappearances" is Latin America, and in 1983
the General Assembly of the Organization of American States declared that
"the practice of forced disappearance of persons in the Americas is an affront
to the conscience of the hemisphere and constitutes a crime against hu
manity."169 This characterization of forced disappearances as a crime against
humanity-absentspecific conventional obligations- is strong evidence
that arbitrary killings by states (of which forced disappearances are but
one manifestation) must also be a violation of contemporary customary
law.
The fundamental and universal nature of the right to life is underscored
by its designation as an "inherent" right in the Covenant on Civil and
Political Rights, a status not accorded to any other right.
That only this right is characterized by the Covenant as inherent may attest to
its primacy and emphasize that it derives from the very fact of a human being's
existence ...
The term "inherent" may indicate also that the framers of the Covenant felt that
the human right to life is entrenched in customary international law, so that
Article 6 is merely declaratory in nature and does not create new international
law.170
Another commentator, in the context of a discussion of the prohibition of

juvenile executions, concludes that"[t]he travaux preparatories clearly reveal
an assumption that article 6 [of the Covenant] was the codification of an
existing and binding norm."171
The argument that protection of the right to life and the concomitant
prohibition of mass arbitrary killings, as contained in multilateral conven
tions, are restatements of existing customary law is supported by the uni
versally accepted norms applied by the International Military Tribunal at
Nuremberg and included in the four Geneva Conventions relating to hu
manitarian law, which were adopted in 1949. Article 6 of the Charter of the
International Military Tribunal provides for individual criminal
responsibility for "crimes against humanity," which include "murder,
extermination,
... and other inhumane acts committed against any civilian population
before or during the war "Onaeuthority concludes without
qualification
that "whatever the state of the law in 1945, Article 6 of the Nuremberg
Charter has since come to represent general international law."172
169. O.A.S. Res. AG/Res. 666(XIII-0/83), para. 4 (emphasis added), cited in Annual Report
of the Inter-American Commission on Human Rights 1983-1984, OAS Doc. OENSer.L/V/
11.63, doc. 10 (1984) at 135.
170. Dinstein, supra note 121, at 114, 115 (emphasis added).
171. Hartman, Unusual Punishment: The Domestic Effects of International Norms
Restricting the Application of the Death Penalty, 52 Cin. L. Rev. 655, 672 (1983).
172. Brownlie, supra note 60, at 546.
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Common Article 3 of the 1949 Geneva Conventions on humanitarian

law-which have been ratified or acceded to by over 150 states-sets forth
a number of minimum standards which are to be respected in conflicts of
a noninternational nature. Among those acts which "are and shall remain
prohibited at any time and in any place whatsoever" are "violence to life
and person, in particular murder of all kinds" and "the carrying out of
executions without previous judgment pronounced by a regularly constituted
court, affording all the judicial guarantees which are recognized as indis
pensable by civilized nations." The former Assistant Secretary-General for
Human Rights of the United Nations has noted that these "fundamental
prescriptions" have "universal validity."173
In its 1954 Draft Code of Offenses against the Peace and Security of
Mankind, the International Law Commission also reflected these proscrip
tions. Among the acts defined as offenses in the draft Code are:
Inhuman acts such as murder, extermination, enslavement, deportation or per
secutions, committed against any civilian population on social, political, racial,
religious or cultural grounds by the authorities of a State or by private
individuals acting at the instigation or with the toleration of such
authorities.'74
The fundamental nature of the obligation of states to protect the right
to life and, in particular, not themselves to engage in arbitrary killings is
clear from the above conventional provisions and acts of international or
ganizations. Thus, the right to life is easily distinguished from the
equidistance principle of international law at issue in the North Sea
Continental Shelf case.
(b) The right to life is nonderogable
The Court also noted, in the North Sea Continental Shelf case, that the
possibility of reservations being made to the equidistance principle contained
in Article 6 of the Geneva Convention on the Continental Shelf decreased
the likelihood that the conventional principle restated or had ripened into
customary international law.175 In contrast, the right to life cannot be der
ogated from under any circumstances, even though the major human rights
conventions do permit derogation from many other protected rights in emer
gency situations.176
173. Van Boven, Distinguishing Criteria of Human Rights, in Vasak & Alston, supra note
143, at 45.
174. Draft Code, art. 2(11), reprinted in Yearbook of the International Law Commission, 1954,
U.N. Doc. NCN.4/85 (1954) at 151.
175. North Sea Continental Shelf case, supra note 123.
176. The right to life is considered to be nonderogable under Article 4(2) of the Covenant on
Civil and Political Rights, Article 15(2) of the European Convention of Human Rights
(with the exception of "deaths resulting from lawful acts of war"), and Article 27(2) of
the American Convention on Human Rights; no provision for derogation from rights is
found in the Convention on the Elimination of All Forms of Racial Discrimination or the
African Charter on Human and Peoples' Rights.

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In the Reservations to the Genocide Convention case,177 the Court

held that only those reservations not incompatible with the object and
purpose of the Convention were permissible; this rule is confirmed in
Article 19(c) of the Vienna Convention on the Law of Treaties. In the context
of human rights treaties, it might well be considered that any reservation
from an obligation to guarantee a nonderogable right would be
impermissible and inconsistent with the basic protective purpose of such
treaties. In fact, no state has entered a reservation to any treaty provision
guaranteeing the right to life or protection from arbitrary killing.
(c) Human rights treaties recognizing the right to life have

been widely ratified
The nearly universal adherence to human rights and humanitarian trea

ties protecting the right to life also stands in stark contrast to the merely
"respectable" number of state parties noted by the Court with respect to the
Geneva Convention on the Continental Shelf. More than 150 states are party
to each of the four 1949 Geneva Conventions on humanitarian law appli
cable to armed conflict, common Article 3 of which prohibits murder "at
any time and in any place whatsoever," in a quasi- unanimous
demonstration of the fundamental nature of the principles set forth therein.
As of 1 September 1987, there were 124 parties to the Convention on the
Elimination of All Forms of Racial Discrimination and eighty-six parties to the
Covenant on Civil and Political Rights (which guarantees the "inherent"
right to life).178 All of the cited General Assembly resolutions were adopted
without a dis senting vote.
In the regional context, all twenty-one members of the Council of
Europe are parties to the European Convention on Human Rights; eighteen
members of the Organization of American States were parties to the
American Con vention on Human Rights as of mid-1987; and, as of April
1987, thirty-three states had ratified or acceded to the African Charter on
Human and People's Rights.
The existence of a large number of multilateral international treaties in which

all or nearly all states participate, as well as important activity in the
codification of international law, create a situation whereby international treaties
are be coming a means of directly creating, modifying, and developing norms of
general international law. It is true that in the majority of instances this takes
place with some assistance of custom.'79
177. Reservations to the Genocide Convention, supra note 37.

178. United Nations, Human Rights, Status of International Instruments, U.N. Sales No.
E.87.XIV.2 (1987) (pocket insert).
179. Tunkin, supra note 115, at 138.

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It is not surprising that numerous scholars and jurists have concluded

specifically that the human right to Iife forms part of contemporary
customary international law.
These fundamental rights (including the right to life] have a supra-positive
char acter inasmuch [as] they are binding on states, even in the absence of
any conventional obligation or of an express acceptance.... Furthermore,
such fundamental rights are considered to be valid under all circumstances,
irre spective of time and place, and no derogation is allowed....
Fundamental human rights would certainly fall under the general principles
notion [contained in article 38, para. 1{c) of the Court's Statute]. They
constitute peremptory norms of general international law (jus cogens) and
are part of
a dynamic process.180
The Restatement (Third) of the Foreign Relations Law of the United
States includes within those human rights protected under customary
international law "the murder or causing the disappearance of
individuals."181 A federal district court has recently confirmed that "[t]he
proscription of summary execution or murder by the state appears to be
universal, is readily definable, and is of course obligatory."182
"[T]he essential core 'right to life' probably has achieved the status
of jus cogens.11183 "[l]t is 'the supreme duty of states,' as it has been stated
by the Human Rights Committee, 'to prevent wars, acts of genocide and
other acts of mass violence causing arbitrary loss of life.' "184
There is thus overwhelming evidence thatthe right to life is a
fundamental human right which forms part of general and customary
international law. While its precise content may be subject to further
definition and elaboration, it cannot bedoubted that the mass arbitrary
killings committed by Democratic Kampuchea fall within the scope of the
international protection of the right to life and constitute gross violations
of customary international law.
3. Torture
a. The facts
Not since Nazi Germany has any government kept such detailed
records of its own gross violations of human rights as those discovered
when the
180. Van Boven, in Vasak & Alston, supra note 143, at 48, 107.
181. Restatement (Third) of the Foreign Relations Law of the United States, supra note 141,
§702(c).
182. Forti v. Suarez-Mason, 672 F. Supp. 1531, 1542 (N.D. Cal. 1987).
183. Lillich, Civil Rights, in 1 Human Rights in International Law (f. Meron ed. 1984) at 121
n. 35.
184. Tikhonov, The Inter-Relationship between the Right to Life and the Right to Peace;
Nucluar Weapons and Other Weapons of Mass Destruction and the Right to Life, in
The Right to life in International Law, supra note 146, at 107.
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Democratic Kampuchean government was forced to abandon Phnom

Penh precipitously in January 1979. Tens of thousands of pages of
documents were discovered at Tuol Sleng and have since been retained,
catalogued, and (in some instances) translated by Cambodian scholars
and Khmer ref ugees.
The most extensive and incriminating of the Tuol Sleng archival
doc uments relating to torture is an "interrogator's manual," a forty-two
page outline of formal notes for use at "work review" sessions of the
Tuol Sleng interrogators.165 Along with mundane admonitions about
using sharpened pencils, not smudging reports, and not lying down while
questioning pris oners is an enumeration of "soft" interrogation
techniques and an extraor dinarily frank exposition of the philosophy,
practice, and "problem" of torture.
Ill. Views and Stances Concerning Methodology of Interrogation
1. The measures for each of us during our interrogation of prisoners are of
two types:
a. Political pressure, i.e., we propagandise and pressure them constantly, con
sistently and continuously at all times.
b. The use of torture is a supplementary measure.
2. Our experience in the past has been that our interrogators for the most
part tended to falI on the torture side. They emphasized torture over
propaganda. This is the wrong way of doing it. We must teach interrogators
how to do it.
3. The enemy will not confess to us easily. When we use political pressure,
prisoners confess only very little. Thus, they cannot escape from torture. The
only difference is whether there will be a lot of it or a little.
4. The Question of Torturing.

a. The purpose of torturing is to get their responses. It's not something we do
for fun. We must hurt them so that they respond quickly. Another purpose is to
break them and make them lose their will. It's not something that's done out of
individual anger, or for self-satisfaction. So we beat them to make them afraid,
but absolutely not to kill them. When torturing it is necessary to examine their
state of health first, and the whip. Don't be so bloodthirsty that you cause their
death quickly. You won't get the needed information.
b. It is necessary to be fully aware that doing politics is most important.
Torture is only secondary, subsidiary and supplementary to some political
expediency
185. Copies of the Khmer original and an English translation of this document are on file with
the Cambodia Documentation Commission.

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in certain areas. So politics takes the lead at all times. Even when torturing, it
is always necessary to do constant propaganda.
c. At the same time, it is necessary to avoid any question of hesitancy of half
heartedness, of not daring to torture, which makes it impossible to get answers
to our questions from our enemies. This will slow down and delay our work.
In sum, whether doing propaganda work or torturing or bringing up questions
to ask them or accusing them of something, it is necessary to hold steadfastly
to a stance of not being half-hearted or hesitant. We must be absolute. Only in
this way can we work to good effect. ...
Other documents from Tuol Sleng leave no doubt that the guidelines
for applying torture were systematically carried out in practice. Daily
reports on Tuol Sleng prisoners note in a routine manner deaths caused by
torture.
From the confessions of former guards there can be no doubt that Tuai Sleng
was indeed a prison and that torture was systematically used, while the size
and location prove that it can only have been an organ created by the central
government leadership and its excesses thus not attributable to Vietnamese
infiltrators as Democratic Kampuchea leaders have claimed.186
It should be remembered that Tuol Sleng was only the apex of a
nationwide prison system in Democratic Kampuchea, although daily
operations of lower level prisons, interrogation, and torture centers are not
as extensively doc umented.
The fact of systematic, widespread, officially sanctioned torture in Dem
ocratic Kampuchea cannot be doubted. The only issue is whether there
exists an international norm of general or customary law which is violated
by such actions.
b. Widespread systematic torture violates general and

customary international law
Both the practice of states and opinio juris, as expressed in

unanimous declarations by intergovernmental organizations and the
writings of publi cists, confirm that the prohibition against state torture falls
within general and customary international law norms. No state
authorizes torture in its constitution or penal code. No state publicly
defends its legal right to torture prisoners or detainees (although there may
be disputes in some instances as to whether certain conduct in fact
constitutes torture or other impermissible ill-treatment). Indeed, it is
difficult to identify a more universally accepted norm than the prohibition
against torture, whether that prohibition is ex pressed in domestic
legislation or in international agreements.
Torture is prohibited by widely ratified international agreements under
186. Vickery, supra note 2, at 151.

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all circumstances, during international and internal conflicts, in emergency

situations, and under normal peacetime conditions. The Hague Conventions
of 1899 and 1907 on the Laws and Customs of War on Land provide that
prisoners of war "must be humanely treated." 187 Included within the defi
nition of "crimes against humanity" employed by the International Military
Tribunal and subsequently confirmed unanimously by the General Assembly
are "inhumane acts committed against any civilian population.11188 Common
Article 3 of the 1949 Geneva Conventions prohibits, inter alia, with respect
to armed conflicts not of an international character, "violation to life and
person, in particular ... mutilation, cruel treatment and torture."189 With
respect to prisoners of war, Article 99 of the Third Geneva Convention
provides: "No moral or physical coercion may be exerted on a prisoner of
war in order to induce him to admit himself guilty of the act of which he
is accused."190 Protocol II to the 1949 Geneva Conventions, which was
adopted in 1977 and concerns internal armed conflicts, prohibits "at any
time and in any place whatsoever ... violence to the life, health and
physical or mental well-being of persons, in particular murder as well as
cruel treat ment such as torture, mutilation or any form of corporal
punishment ... [and] collective punishments."191
It is not surprising that a prohibition which operates even in time of war
is also applicable without qualification in time of peace. The Universal
Declaration of Human Rights states, "No one shall be subjected to torture
or to cruel, inhuman or degrading treatment or punishment."192 This principle
has been confirmed and reiterated in almost identical language in all major
international agreements for the protection of human rights.193 The United
Nations also has adopted several normative declarations of principles or
codes of conduct which recognize the fundamental prohibition against tor
ture under any circumstances.194
187. Hague Convention on the Laws and Customs of War on Land, signed 29 July 1899,
entered into force 4 Sept. 1900, 32 Stat. 1803, T.S. 403, Annex, art. 4; Hague
Convention on the Laws and Customs of War on Land, signed 18 Oct. 1907, entered
into force 26 Jan 1910, 36 Stat. 2277, T.S. 539, Annex, art 4.
188. Charter of the International Military Tribunal, annexed to the Agreement for the Prose
cution and Punishment of the Major War Criminals of the European Axis, signed 8
Aug. 1945, art 6.
189. Geneva Convention, supra note 162.
190. Id.
191. Protocol II to the 1949 Geneva Convention, supra note 163.
192. Universal Declaration of Human Rights, supra note 167, art. 5.
193. See, e.g., Covenant on Civil and Political Rights, supra note 159, art. 7; Convention on
the Elimination of All Forms of Racial Discrimination, supra note 160, art. 5; European
Convention on Human Rights and Fundamental Freedoms, supra note 164, art. 3;
Amer ican Convention on Human Rights, supra note 165, art. 5; African Charter on
Human and People's Rights, supra note 166, art. 5.
194. See, e.g., Standard Minimum Rules for the Treatment of Prisoners, Art. 31, E.S.C. Res.
663C(XXIV), 24 U.N. ESCOR, Supp. (No. 1) 11 (1957); U.N. Code of Conduct for
Law

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Perhaps the most significant statement as to the legally binding

character of the international prohibition against torture is the Declaration on
the Protection of All Persons from Being Subjected to Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment, which was
adopted by the UN General Assembly in 1975.195 It refers to the
"inherent" nature of the right to be free from torture and the obligation of
states under Article 55 of the UN Charter.
Article 2 of the Declaration provides:
Any act of torture or other cruel, inhuman or degrading treatment or
punishment is an offence to human dignity and shall be condemned as a
denial of the purposes of the Charter of the United Nations and as a
violation of the human rights and fundamental freedoms proclaimed in the
Universal Declaration of Human Rights.
In keeping with the fact that no derogation from the prohibition against
torture is permitted under any international instrument, Article 3 provides:
No state may permit or tolerate torture or other cruel, inhuman or degrading
treatment or punishment. Exceptional circumstances such as a state of war
or a threat of war, internal political instability or any other public emergency
may not be invoked as justification of torture or other cruel, inhuman or
degrading treatment or punishment.
In 1984, the United Nations unanimously adopted and opened for sig
nature and ratification a Convention against Torture and Other Cruel, In
human or Degrading Treatment or Punishment, in part as a means of im
plementing "the existing prohibition under international and national law
of the practice of torture and other cruel, inhuman or degrading treatment
or punishment."196 While the procedures established thereunder bind only
the parties to the convention, the cited language makes clear that the sub
stantive prohibition of torture is binding on all states.
Other international organizations have recognized the fundamental na
ture of the international prohibition against torture as well. In 1980, the
Inter-American Juridical Committee of the Organization of American States
approved a Draft Convention Defining Torture as an International Crime,197
and, in 1985, the Convention was opened for signature.198 The Preamble
to the Convention "[rJeaffirms that every act of torture and other cruel,
Enforcement Officials, art. 5, GA Res. 34/169, 34 U.N. GAOR, Supp. (No. 46) 185
(1979); Principles of Medical Ethics, Principle 2, GA Res. 37/194, 37 U.N. GAOR,
Supp. (No. 51) 230 (1982).
195. GA Res. 3452(XXXJ, 30 U.N. GAOR, Supp. (No. 34) 91 (1975).
196. GA Res. 39/46, 39 U.N. GAOR, Supp. (No. 51) 197 (1984), adopted 10 Dec. 1984,
entered into force 26 June 1987 (emphasis added).
197. OAS Doc. CJl-42 (1980), at 43-97.
198. OAS Doc. OEA/Ser.P/AG/doc.2002/85 (1985).

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inhuman or degrading treatment or punishment constitutes an offense

against human dignity and a negation of the principles consecrated in the
Charter of the Organization of American States and in the Charter of the
United Nations "199
At the national level, one of the most significant decisions in recent
years is that of the US Court of Appeals for the Second Circuit in the case
of Fi/artiga v. Pena-Ira/a.200 After an extensive review of international legal
sources, including international agreements to which the United States was
not party as well as resolutions of the United Nations General Assembly,
the court concluded unequ'ivocally:
[A]n act of torture committed by a state official against one held in detention
violates established norms of the international law of human rights, and hence
the law of nations.... [The right to be free from torture] has become part of
customary international law The prohibition is clear and unambiguous, and
admits of no distinction between treatment of aliens and citizens.201
The brief filed as amicus curiae by the government of the United States
in the Filartiga case agreed that "[i]nternational custom ... evidences a
universal condemnation of torture."202The Restatement(Third) of the Foreign
Relations Law of the United States also identifies "torture or other cruel,
inhuman or degrading treatment or punishment" as a violation of customary
international law.203The Reporters' Notes to the Restatement further observe
that "the prohibition against torture, at least, may also have been absorbed
into international law as a general principle common to major legal sys
tems."204 Other publicists and commentators agree that torture violates
gen
eral or customary international law.205
It is unfortunately the case that torture occurs in many countries despite
domestic and international prohibitions. Such de facto breaches do not,
199. Author's translation.

200. 630 F. 2d 876 (2d Cir. 1980). See also Tel-Oren v. Libyan Arab Republic, 726 F. 2d 774
(D.C.Cir. 1984), cert. denied, 470 U.S. 1003 (1985); Forti v. Suarez-Mason, supra note
182; Guinto v. Marcos, 654 F. Supp. 276 (S.D.Cal. 1986); von Dardel v. USSR, 623 F.
Supp. 246 (D.D.C. 1985). Cf., e.g., Blum & Steinhardt, Federal Jurisdiciton over Inter
national Human Rights Claims: The Alien Tort Claims Act after Filartiga v. Pena-Ira/a, 22
Harv. lnt'I L.J. 53 (1981); Comment, Torture as a Tort in Violation of International Law:
Filartiga v. Pena-Ira/a, 33 Stan. L. Rev. 353 (1981).
201. Filartiga, at 878, 882, 884 (emphasis added).
202. Memorandum for the United States as Amicus Curiae, Filartiga v. Pena-Ira/a, at 16.
203. Restatement (Third) of the Foreign Relations Law of the United States, supra note 141,
§702.
204. Id., Reporters' Notes, at 479.
205. See, e.g., P. Sieghart, The Lawful Rights of Mankind 60 (1985); Newman, Problems in
the Application and Interpretation of Civil and Political Rights, in 1 Vasak & Alston,
supra note 143, at 140; accord van Boven, id., at 45, 107; Dinstein, supra note 121, at
122; Lillich, supra note 183, at 127; D.F.J.J. De Stoop, Australia and International
Criminal Law, in International Law in Australia 155, 161 (K. W. Ryan ed., 2d ed. 1984).

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however, detract from the status of the prohibition against torture as a norm
of customary international law, any more than instances of theft and murder
negate domestic penal legislation. As noted by Judge Tanaka:
It must be recognized that the international protection of human rights and
fundamental freedoms is weak and imperfect. ... [However, ineffective en
forcement mechanisms) do not constitute a reason for denying their legal pro
tection. That a norm is lex imperfecta does not deprive it of its legal character.206
Thus, neither human rights norms in general nor the prohibition against
torture are any less binding because they may be violated. As noted above,
the prohibition against torture is confirmed by the fact that no state claims
the right under international or national law to torture its citizens.
4. Conclusion
As noted by the Court in the North Sea Continental Shelf judgment, a con
clusion that new rules of customary international law can be identified by
the Court is "not lightly to be regarded as having been attained."207 Nev
ertheless, the Court has an obligation under Article 38 of the Statute to apply
contemporary international law when appropriate issues are presented to it.
As noted by Judge Koretsky, "[GJeneral international law keeps abreast of
the times, conveying a sense of today and the near future by absorbing the
basic progressive principles of international law as soon as they are devel
oped."2oa
While the precise questions raised in the context of an application
against Democratic Kampuchea-whether mass arbitrary killings and
systematic torture violate general and customary international law-have not
yet been specifically addressed by the Court, they are closely analogous to
human rights issues which the Court has previously considered. The
principle that certain human rights norms, such as equality and
nondiscrimination, now form part of customary international law cannot be
doubted. The time is ripe for the Court to hold that the right to life and
freedom from torture are similarly protected.
PART IV. FINAL OBSERVATIONS
While the World War II Holocaust that inspired adoption of the Genocide
Convention may have been unique in its scope and impact, genocide has
206. Tanaka, Some Observations on Peace, Law, and Human Rights, in Friedman, Henkin,
Lissitzyn, supra note 140, at 249, 250.
207. North Sea Continental Shelf, supra note 123, at 41
208. Id. at 157 (diss. op. of Judge Koretsky).

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not been restricted to that particular era of the twentieth century. Mass
killings, which at least arguably rise to the level of genocide, have occurred
against Armenians, Hutus, lbos, Baha'is, and indigenous peoples, in addition
to the Khmer Rouge killings in Democratic Kampuchea. Yet, since its entry
into force in 1951, no attempt has been made to utilize the Genocide
Convention to stop or even draw attention to these or similar situations. 209
Despite the fact that Cambodia has accepted the compulsory jurisdiction of
the Court, no attempt has been made to condemn the Khmer Rouge's viol
ations of customary international law.
Many reasons, purportedly based on considerations of realpolitik, have
been put forward by states to excuse their failure to act, in spite of the clear
evidence now available concerning the events in Democratic Kampuchea
from 1975 to 1979. The Association of South East Asian Nations (ASEAN)
countries210 have expressed concern that an application to the International
Court of Justice would, by attacking one of the members of the CGDK,
indirectly support the continuing Vietnamese occupation of Cambodia by
weakening the opposition forces. Other states in the region, such as
Australia, fear that filing a case against Democratic Kampuchea might
somehow con stitute recognition of the CGDK government or query the
technical difficulties considered in Part II. European and other states simply
defer to those closest to the situation, and all seem wary of combining issues
of self- determination and human rights.
While the UN General Assembly and Commission on Human Rights
annually adopt resolutions calling for self-determination in Cambodia, there
has been no formal consideration of the human rights situation under Pol
Pot or currently since the Bouhdiba report in 1979.211 It would be naive to
expect that politics will not have a significant impact on UN deliberations,
but this consistent refusal to address a problem without the resolution of
which there can be no lasting political settlement in Cambodia is not even
good politics. It is nearly a decade since the Vietnamese invasion, and the
refusal of the international community to condemn a return to power by Pol
Pot has contributed to the present stalemate. Meetings in recent months
between Prince Sihounouk and representatives of the People's Republic of
Kampuchea may be encouraging, but they cannot render irrelevant the
brooding presence of the Khmer Rouge and its genocidal leaders.
209. It could beargued that one such attempt was made by Pakistan, following India's
assistance to the ultimately successful secession of Bangladesh, but the application was
dropped as part of the overall political settlement. See Trial of Pakistani Prisoners of
War, Interim Protection, Order of 13 July 1973 and Order of 15 Dec. 1973, 1.C.J.
Reports 1973, at
328,347.
210. These countries are Brunei, Indonesia, Malaysia, Philippines, Singapore, and Thailand.
211. See, e.g., GA Res. 41/6, 41 U.N. GAOR, Supp. (No. 53) 17 (1986) and U.N. Comm.
Human Rights Res. 1987/6, U.N. ESCOR, Supp. (No.SJ 25 (1987), and earlier resolutions
cited therein.

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It is inconceivably callous and manipulative of neighboring states to

refuse to address the genocide which occurred in Democratic Kampuchea
under the Khmer Rouge on the grounds that it may be politically inconve
nient. Had Nazi Germany not been so thoroughly defeated, similar reasoning
also would have permitted Hitler to remain in power-so long as whatever
postwar coalition that emerged in Germany was politically acceptable to
the Allied powers.
Will Cambodians be forced to assassinate former Khmer Rouge cadres
in decades to come if the latter are not punished for genocide, just as militant
Armenians pursue Turkish government officials today for crimes committed
six decades ago? Will revisionist historians deny the Cambodian genocide,
as others attempt to deny the deaths of millions under Stalin, Hitler, and
Mao Zedong? If there is a settlement which permits the Vietnamese to with
draw from Cambodia, who will accept the responsibility if Khmer Rouge
policies are reintroduced by the strongest military force-the Khmer Rouge
in the new government?
The outcome of litigation is never certain, and there are complex juris
dictional and interpretative problems involved in a case against Democratic
Kampuchea under the Genocide Convention. Nevertheless, such problems
can be overcome, both under the Genocide Convention and in the context
of an application against Democratic Kampuchea under the Court's com
pulsory jurisdiction.
The fact that no government has been willing to invoke international
law on behalf of Cambodian victims of genocide is less an indictment of
law than of governments.212 A finding by the International Court of Justice
212. The following countries have ratified the Geocide Convention (without reservations to
the Court's competence under art. IX) and also accepted the compulsory jurisdiction of
the Court under art. 36 of the Statute: Australia, Austria, Barbados, Belgium, Canada,
Colombia, Costa Rica, Denmark, El Salvador, Finland, Gambia, Haiti, Honduras, India,
Israel, Liberia, Luxembourg, Mexico, Netherlands, New Zealand, Nicaragua, Norway,
Pakistan, Panama, Philippines, Sweden, United Kingdom, and Uraguay. The Philippines
does not consider art. IX of the Genocide Convention "to extend the concept of State
responsibility beyond that recognized by the generally accepted principles of
international law"; objections to this reservation have been filed by Australia and
Norway. Acceptances by India and Israel exclude disputes with a state with which they
do not have diplomatic relationsa and India also requires that any application under art.
IX of the Genocide Convention have the consent "of all the parties to the dispute."
Human Rights, Status of International Instruments, supra note 178.
Afghanistan, Argentina, Bahamas, Brazil, Burkina Faso, Burma, Chile, Cuba, Cyprus,
Ecuador, Egypt, Ethiopia, Fiji, France, Gabon, Federal Republic of Germany, Ghana,
Greece, Guatemala, Iran, Iraq, Ireland, Italy, Jamaica, Jordan, Laos, Lebanon, Lesotho,
Maldives, Mali, Monaco, Mozambique, Nepal, Papua New Guinea, Peru, Republic of
Korea, Saint Vincent and the Grenadines, Saudi Arabia, Senegal, Sri Lanka, Syria,
Tanzania, Togo, Tonga, Tunisia, Turkey, United States, Yugoslavia, and Zaire have
ratified the Genocide Convention (without relevant reservation to art. IX) but have not
accepted the compulsory jurisdiction of the Court under art. 36 of the Statute. Id.

49.43.100.47 on Wed, 21 Jun 2023 08:18:46 +00:00
that genocide was committed in Democratic Kampuchea under Khmer

Rouge rule will bring no individuals to justice, ease no past suffering. It
would suggest, however, that at least one government takes seriously its
legal and humanitarian commitments, and it would offer some support to
those Cam bodians who wish again to govern themselves without fear of
extermination.

49.43.100.47 on Wed, 21 Jun 2023 08:18:46 +00:00

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Hannum InternationalLawCambodian 1989 2

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International Law and Cambodian Genocide: The Sounds of Silence

Author(s): Hurst Hannum

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International Law and Cambodian

PART I. THE FACT OF GENOCIDE

PART II. THE DELIBERATE KILLINGS AND DESTRUCTION

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PART Ill. DEMOCRATIC KAMPUCHEA'S VIOLATION OF

PART IV. FINAL OBSERVATIONS 135

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The atrocities that occurred in Democratic Kampuchea under the rule of

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PART I. THE FACT OF GENOCIDE4

Democratic Kampuchea was the name given in 1976 to the country of

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Article II of the Convention on the Prevention and Punishment of the

2. Acts of genocide against ethnical and racial groups7

The most desperate people in Democratic Kampuchea were those targeted

The Cham, a non-Khmer people of Malaya-Polynesian racial stock, are

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distinguishing characteristics of Cham ethnicity were prohibited, including

3. Acts of genocide against religious groups

Article II of the Democratic Kampuchean Constitution provided "the right

9. See Becker, supra note 2, at 261-63.

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4. Acts of genocide against the Khmer national group

Democratic Kampuchea's leadership was determined to cleanse, purify, and

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Three distinct categories of deliberate killings occurred in Democratic

18. Amnesty International, Political Killings By Governments 40 (1983).

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sponding to what the Khmer Rouge identified as an intensification of the

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b. Serious bodily or mental harm

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partment of Psychiatry of the School of Medicine at the Oregon Health

Under the Genocide Convention, genocide also may be committed by

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Cambodia, more people died as a result of the conditions to which they

d. The demography of death in Democratic Kampuchea

There can be no doubt that vast numbers of Cambodians died as a direct

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PART II. THE DELIBERATE KILLINGS AND DESTRUCTION OUTLINED

31. Shawcross, supra note 2, at 115-16.

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vention remains in force for successive periods of five years (following an

36. Northern Cameroons, Judgment, I.C.J. Reports 1963, at 15, 29.

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The oft-quoted judgment of the Court in the Barcelona Traction case

an essential distinction should be drawn between the obligations of a State

While the present government of Democratic Kampuchea

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tinuing dispute between a potential applicant state and Democratic Kam

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Some states have expressed fears that filing an application against

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recognition drawn from the British government's application. 55 Consistent

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The only occasions recognized by Lauterpacht as necessarily implying

3. Continuing nature of violations

Article IV of the Genocide Convention stipulates:

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of the Standing Committee of the Central Committee of the Communist