Hannum InternationalLawCambodian 1989

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 calc
about the physical destruction of the group in wh
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 a 1989 by The Johns Hopkins University Press

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1989 Cambodian Genocide 83
6. Intent 107
7. The prov
construed in a
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 arbitrar
international law
i. Customary in
human rights and
ii. The prohibitio
included within c
(a) Respect for th
(b) The right to life is nonderogable 127
(c) Human rights treaties recognizing the right to life h
been widely ratified
3. Torture 129
a. The facts 129
b. Widespread s
customary interna
4. Conclusion 135
PART IV. FINAL OBSERVATIONS 135

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84 HUMAN RIGHTS QUARTERLY Vol. 11
The atrocities that occurred in Democratic Kam

Pol Pot and the Khmer Rouge from 1975 to 1979
as only the rumors of refugees. Early reports of
were rejected as exaggerated or anticommunist d
of the Khmer Rouge by the invading Vietnamese in
possible to investigate and confirm the existence of
touched almost every Cambodian family. In recen
Democratic Kampuchea under Pol Pot have been
there can be little doubt of the scale of the crimes
Cambodia has been a party to the Convention
Punishment of the Crime of Genocide3 since its ent
accepted the compulsory jurisdiction of the Internat
1957. Yet there has been no effort to invoke the jur
order to verify and condemn the violations of inter
by the Khmer Rouge government of Democratic
This article examines the feasibility of bringin
International Court of Justice, under the terms of
Convention or Article 36 of the Statute of the Cour
an application would be legally feasible and poli
the failure of any state thus far to institute procee
an indefensible abdication of international respon
The first part of this article considers in some de
of genocide in Cambodia, countering the view e
however deplorable they might have been, the Kh
not technically "genocide." The second part outl
successful application under the Genocide Conven
of the Court's jurisdiction, the existence of a disp
state and Democratic Kampuchea, and whether th
themselves by the Khmer Rouge leadership const
"national" group within the meaning of the convent
siders the application under the Court's compulso
Democratic Kampuchea with violations of custom
1. See, e.g., J. Barron and A. Paul, Murder of a Gentle Land

Year Zero (1977).
2. Among the many books published or translated into Engl
the War Was Over (1986); K. Honda, Journey to Cambodia (1
Odyssey (1987); S.H. Schanberg, The Death and Life of Dit
The Quality of Mercy (1984); M. Vickery, Cambodia 1975
period also saw publication of numerous well-researched art
such as Timothy Carney, Stephen H. Heder, and Ben Kiern
3. Convention on the Prevention and Punishment of the Cr
signature 9 Dec. 1948, entered into force 12 Jan. 1951, 78 U
as Genocide Convention].

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crimes against humanity, i.e., m

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 leng 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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Article 11 of the Convention on the Prevention

Crime of Genocide defines genocide as
any of the following acts committed with intent to

a national, ethnical, racial or religious group, as su
(a) Killing members of the group;

(b) Causing serious bodily or mental harm to membe
(c) Deliberately inflicting on the group conditions
about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births w
(e) Forcibly transferring children of the group to an
With the objective to purify Kampuchea and pur

influences, it was the policy of Democratic Kam
groups "as such" which fall within the protecti
vention.
2. Acts of genocide against ethnical and racial g
The most desperate people in Democratic Kampuch

elimination because of their race, creed, or culture...
Kampuchea] had to be proper Khmers, as defined by
Khmer Rouge mission was to revive the glory and
ensure the perenniality of the Khmer race, as Pol Po
To that end, the Khmer Rouge adopted a philosoph

purity that resembled that of Nazi Germany, includ
eliminate minorities. . ... (They declared:]
There is only one Kampuchean revolution. In Kampuch
and one language, the Khmer language. From now on
not exist any longer in Kampuchea.8
The Cham, a non-Khmer people of Malayo-Pol

the remnants of the Hinduized Kingdom of Champ
the Khmer and had their own religion (Islam),
dress. Beginning in at least 1973, the Khmer Rouge
of forced "Khmerization" in areas of Kampuchea un
was later extended to the entire country. In many
were broken up and families dispersed among th
7. The major groups that Khmers considered to be distinct f

or ethnically were the Thai, Chinese, Vietnamese, and C
numbers of Lao, Burmese, Indians, Pakistanis, and indigeno
Khmer Leou.
8. Becker, supra note 2, at 253.

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distinguishing characteristics o
speaking the Cham language,
customs, such as marriage, bir
It is difficult to determine th
executions, massacres, and the
erately subjected during Dem
large variance in the estimates
1975. Cham survivors and refu
population as 700,000 and th
200,000.10 If the previous Ch
would mean that fully one hal
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 11 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 Bud-
dhism, which was the established state religion of Cambodia."1 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 25.

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At the outset of the 1970 to 1975 civil war, the

reasons did not attack the Buddhist monkhood, and
those in rural areas, supported the Khmer Rouge b
Prince Sihanouk. In areas where the Khmer Rou
the population, however, they began to disman
1973. Only two Buddhist holy days were perm
dance were prohibited and replaced by political
ceremonies were forbidden, although the pagod
individual use.14
After the Khmer Rouge took power in 1975, "Bu
to eradication in less than twelve months."'s Rel
and practices were prohibited. The cooperative d
or temple as the ritual and ceremonial focus of
the cities, the temples were destroyed or converte
shops, or stables; some became prison-execution
and other religious artifacts, statuary, books, and
destroyed. The Sanga leadership, the most vener
refused to disrobe or otherwise disobeyed order
1975, there were approximately 60,000 monks i
almost a year after the Khmer Rouge were ousted
than 1,000 monks had survived and returned to thei
In 1978, Madam Yun Yat, the Democratic Kam
Culture and Education, boasted to visiting Yugoslav
was incompatible with the goals of the revoluti
past, forgotten and surpassed."" By the end of e
in 1979, Buddhism had been completely destroye
and its monks substantially destroyed physicall
Buddhist monkhood is precisely the kind of act
was formulated to proscribe and prevent.
4. Acts of genocide against the Khmer national
Democratic Kampuchea's leadership was determin

consolidate the Khmer national group-a grim remin
14. Quinn, The Khmer Krahom [Rouge] Program to Create a C

Cambodia, US State Dept. Airgram, 20 Feb. 1974, at 24-2
Documentation Commission).
15. Sam, supra note 12, at 82.
16. Hearings on the Crime of Genocide, Senate Comm. on
1st Sess. 195 (1985) (statement of David R. Hawk).
17. Statement of Madam Yum Yat, quoted in UN Sub-Com
crimination and Protection of Minorities, Submission from
Commission on Human Rights decision 9 (XXXIV), at 5,
Add.5 (1978).

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to purify and propagate the "

to purify society extended bey
example, socialists and homos
gram of Democratic Kampuch
religious minorities.
According to an Amnesty Int
of undesirables described as "w
included the massacre of entir
centages of the population in
cannot be dismissed as merely
Democratic Kampuchean gover
the populace.19 The logic at w
ple were not eliminated becaus
they were accused of treason b
Those eliminated were not me
human. In the archives of the
tem, individual names are freq
"contemptible" or "wicked." T
kamtech, is literally translated a
utter physical annihilation. "D
Khmer word for animal death
in the prison archives for wome
animals, not female human be
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

class struggle, the more highly educated professi
Later, to advance the progress of the new social
leadership decided to purge the Cambodian nation
as having lingering attitudes of "privateness" or
that should have disappeared with the abolition
property and the dissolution of the capitalist classes
foundation for waves of massacres directed against
elements of the Cambodian peasantry.21
The most thoroughly documented regional purge
Zone in 1978, in which an estimated minimum
executed in a six-month period.22 While some o
Eastern Zone belonged to a recognizable political
Democratic Kampuchea's central leadership, far l
were killed because they were deemed to be taint
under the jurisdiction of the presumedly disloyal po
whelming number of those massacred were simp
uees without any particular political affiliation, w
any "political group" in the commonsense meanin
In addition to those destroyed in the expandi
against successive segments of the populace, scor
dividually executed, usually following interrogat
tionwide system of prison-execution centers. Th
prison-execution system was S.21, the central pr
Phnom Penh. S.21, now known as "Tuol Sleng," was
operating under the direct control of Democratic Ka
ership. Only seven prisoners, whose skills were usefu
and the leadership, are known to have survived;
One of the last acts of the Democratic Kampuche
fleeing in January 1979 was to slit the throats of th
to their interrogation cots; when Tuol Sleng was
were still coagulating beneath their bodies.
Execution schedules recorded each day's work
figure was 582 people executed on 27 May 1978.
particular day's execution schedule usually reflected
21. Hawk, supra note 4. See also Becker, supra note 2, at 18

22. B. Kiernan, The Eastern Zone Massacres: A Report on th
Rights Violations in the Eastern Zone of Democratic Kampu
of Kampuchea (Khmer Rouge) Rule (New York: Columbia Uni
of Human Rights monograph, 1986) (on file with the Cam
mission).
23. Hawk, Tuol 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 we

of prisoners. For example, 1 J
prisoned wives and children of
devoted to "smashing" people f
the victims' names are identified
arrest and execution schedules m
of killings by Democratic Kamp
the prison to their deaths.
The prison-interrogation-tortur
puchea are so much more macab
in other countries that the sur
it not for the extraordinary ar
facilities are comprehensible-an
of a regime that is perpetrating g
Finally, refugee and survivor
to killings by lower-level Khmer
for minor infractions or "bad" at
control through indiscriminate te
meun chamnenh, dak meun khat:
is no loss in removing them." T
are "killings" within the meaning
and contributed to the partial d
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-ifllustrated by the Tuol Sleng "interrogators manual." See discussion infra note
185.

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partment of Psychiatry of the School of Medic

Sciences University, which concluded:
In the last several years we have gradually become aw
different about the more recent Cambodian refugees
horror stories and almost unspeakable human tragedi
bodians seemed unique. The amount of violence re
massive. The deaths and murders that they had seen s
and wanton than those reported by other refugees.
The patients' horror stories are largely confirmed by ot

in Cambodia under the Pol Pot regime from 1975 to
the Cambodian refugees reminded us of the Nazi co
Subsequent to the above study, teachers in the Po
system contacted doctors regarding some proble
students. Of forty-eight children included in the re
four years of "concentration camp-like experien
experience of living under the Democratic Kam
the forty with "work-camp" experience, 83 percent
their families; 98 percent endured forced labor, oft
day, seven days a week; 83 percent went without
time; and 68 percent described themselves as "lo
Eighty percent lost at least one family member,
members of the nuclear family who were lost and p
percent saw members of their family killed; 43 p
and 38 percent said that they or their family memb
the forty subjects were diagnosed as having posttra
The Genocide Convention identifies "mental h
group" as a constituent part of the crime of genocid
above conclusively demonstrates that "mental ha
Democratic Kampuchean rule and that this menta
liberate policies. Moreover, these clinical studies of
Kampuchean genocide also corroborate the alleg
cide-through executions, forced labor, and star
cation to the International Court of Justice would s
c. Deliberate infliction of conditions of life cal

the physical destruction of the group in whole
Under the Genocide Convention, genocide also

deliberately inflicting "conditions of life" that dest
27. The 'Concentration-Camp Syndrome' Among Cambodian

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

were deliberately subjected than
the Lawyers Committee for Hum
three times as many victims suc
Khmer Rouge] imposed on daily
imposed on a people who were se
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, or disease. 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. Lawyers Committee for Human Rights, Kampuchea: After the Worst 3 (1985).
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/rn 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

1979. An earlier estimate by the post-1I979 autho
three million deaths was accepted by a Swiss UN
the Secretary General.31 A UNICEF representativ
of three million was "more or less true."32 A 198
UN Sub-Commission on Prevention of Discriminatio
Minorities states that "at least 2 million people
Khmer Rouge government of Democratic Kampuche
of 7 million."33
A survey conducted inside Cambodia, among
bodian survivors, by a prominent Japanese journa
terviews with survivors and documented the deaths
within 216 families.34 These findings confirm the ex
and journalists that it is difficult to find a family t
the Japanese survey found only four within its sam
An even larger survey conducted of over 1,500
to the Thai-Cambodia border in 1980 in search of
confirms the deaths of over 15,000 immediate fam
a mortality rate of roughly 25 percent among ur
divided almost equally between execution, starva
percent among rural Khmers (with approximately
ecution, 25 percent by starvation, and 25 percent
cover the pre-1975 population, these ratios wou
million Cambodians were killed or died from the con
they were subjected.
While it may never be possible to establish a
number of deaths in Cambodia, all of these num
grotesque. Any of these estimates is more than adeq
Convention's requirements as to proportionality,
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 (B. Whitaker, Special Rapporteur), U.N. Doc. E/CN.4/Sub.2/1985/6 at 10
n.1 7 (1985).
34. Honda, supra note 2.
35. Survey conducted by Stephen Heder (on file with Cambodia Documentation Commission).

49.43.100.124 on Wed, 28 Jun 2023 19:19:45 +00:00
vention remains in force for s

initial ten-year period) "for su
it at least six months before the
vention therefore will remain
other current state parties at lea
Article IX of the Genocide Co
Disputes between the Contractin

cation or fulfillment of the pres
responsibility of a State for geno
Article III, shall be submitted to t
of any of the parties to the dispu
There can be no doubt that the

of Article IX, in that allegations
or been an accomplice in the co
"application or fulfillment . .
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, nam

those high purposes which are the raison d'etre of th
in a convention of this type one cannot speak of
disadvantages to States, or of the maintenance of a
between rights and duties. The high ideals which ins
vide, by virtue of the common will of the parties, t
of all its provisions.37
The oft-quoted judgment of the Court in the

underscored that:
an essential distinction should be drawn between

towards the international community as a whole,
another State in the field of diplomatic protection. By
are the concern of all States. In view of the importa
all States can be held to have a legal interest in t
obligations erga omnes.38
While the present government of Democratic

by the United Nations, the Coalition Government o
(CGDK), is not the same as the Khmer Rouge go
the commission of genocide in the period from
Rouge remains an integral part of the CGDK. While
that other members of the present CGDK39 were re
practices of the period from 1975 to 1979, the CGD
recognized that genocide was committed by th
government of Democratic Kampuchea nor has it t
within its jurisdiction responsible for genocide.40 L
government responsible for genocide continue to p
the highest levels of the CGDK, and, while no appli
Convention could directly establish the criminal lia
the presence of such persons would be relevant
37. Reservations to the Convention on the Prevention and Pu

ocide, Advisory Opinion, I.C.J. Reports 1951, at 15, 23 (
38. Barcelona Traction, Light and Power Company, Limited, S
Reports 1970, at 3, 33 (emphasis added).
39. The other two members of the CGDK are the National Un
Neutral, Peaceful and Cooperative Cambodia, headed until
Sihanouk, and the Khmer People's National Liberation Fron
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 leng 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. A/34/568 (1979) and A/34/569 (1979).

49.43.100.124 on Wed, 28 Jun 2023 19:19:45 +00:00
tinuing dispute between a pote

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. ... [lit 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, I.C.J. Reports 1963, at 15, 49 (sep. op. of Judge Wellington
Koo).
44. Interpretation of Judgments Nos. 7 and 8 (Factory at Chorzow), Judgment No. 11, 1927,
P.C.I.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.

49.43.100.124 on Wed, 28 Jun 2023 19:19:45 +00:00
refused to admit that its actions constituted genoci

to punish those responsible.
In most cases considered by the Court involvin
alleged breaches of a treaty, the treaty upon which
specifically required that diplomatic negotiations
Court could be seised of a matter. In the Mavromma
case, for example, the relevant Mandatory Agree
Permanent Court jurisdiction over a dispute only "i
negotiation."47 The Trusteeship Agreement at issue
oons case also permitted reference to the Court of a
be settled by negotiations or other means." Simil
* .. which is not settled by direct diplomatic neg
the Interpretation of Peace Treaties case.48 No such
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. "IT]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,50 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.''s
[N]o 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....
[Niever has the view been put forward before that, because a legal dispute
47. Mavrommatis Palestine Concessions, Judgment No. 2, 1924, P.C.I.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, I.C.J. Report 1984, at 392, 435.

49.43.100.124 on Wed, 28 Jun 2023 19:19:45 +00:00
submitted to the Court is only on

decline to resolve for the parties
can any basis for such a view of
in the Charter or the Statute of th
jurisprudence, to adopt such a v
warranted restriction upon the
international disputes.52
The Court has similarly held

actively pursued during . . . pr
any obstacle to the exercise by
the Court barred from consid
under consideration by the U
would be warranted, mutatis mu
be under consideration by the
organs.
Thus, there are no barriers
Democratic Kampuchea under
the Court in such a case would
thetical facts. Rather, it would
by the Genocide Convention, t
to the treaty; (2) prohibit the rep
government; and (3) require th
leaders responsible for genocid
ment within whose jurisdiction
IV and VI of the Convention.
2. Recognition
Some states have expressed fears

Kampuchea would imply recogni
CGDK government, but these
Channel case, for example, the
banian government at the time,
by either party or by the Cou
52. United States Diplomatic and Consu

3, 19, 20.
53. Agean Sea Continental Shelf, Judg
54. See United States Diplomatic and
(neither Security Council actions nor
UN Secretary-General constituted an
the American hostages case); Paramili
432-36, 438-41.

49.43.100.124 on Wed, 28 Jun 2023 19:19:45 +00:00
recognition drawn from the British government's

with this approach is the award in the 1923 Tinoco
(Great Britain/Costa Rica), which found that nonr
cessor Tinoco government by the claimant state d
sequent government of Costa Rica from responsibilit
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'activit6
d'un gouvernement est imputable A I'Etat et engage sa responsabilit6 inter-
nationale A la condition que le gouvernement controle effectivement
I'Etat.... Aucune autre condition, et spdcialement la reconnaissance de ce
gouvernement par I'Etat lsd, 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.
IT]he 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, I.C.J. Reports 1947-1948, at 15;
Merits, judgment, I.C.J. Reports 1949, at 4.
56. 1 U.N. Rep. Int'l 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 I'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 Law 98 (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).

49.43.100.124 on Wed, 28 Jun 2023 19:19:45 +00:00
The only occasions recognize

recognition are the conclusion
the two states; the formal initia
of belligerency, a proclamation
While no writer seems to ha
ceedings before the Court, the
do not imply recognition are p
ences, or organizations. Indeed, r
to remove any question of im
Should the Court accept a par
ocratic Kampuchea and that a
state, it is possible that the la
questioning the legitimacy of t
No decision by the Court, how
ognition of a respondent govern
of a government by the General
relations of individual Membe
event, a specific statement to
terpreted as affecting the legiti
Democratic Kampuchea or imp
ment by an applicant state wou
preapplication policy.
3. Continuing nature of violat
Article IV of the Genocide Con
Persons committing genocide or

shall be punished, whether they
officials or private individuals.
Those persons responsible for t

have not only not been punish
and international public life an
the current CGDK governmen
from Phnom Penh by a foreign m
61. Lauterpacht, supra note 60, at 40

62. U.N. G.A. Res. 396(V), 5 U.N. GA
which government would be recogn
attempted to act as respondent mig
which the General Assembly recom
Assembly or its Interim Committee c
represents a Member State] should b
Nations and in the specialized agenc

49.43.100.124 on Wed, 28 Jun 2023 19:19:45 +00:00
of the Standing Committee of the Central Committee

of Kampuchea (Democratic Kampuchea's highest po
manders of military units that perpetrated genoci
officials of prison-extermination facilities remain
border region engaging in a guerilla war and exer
mental powers in areas under their control. So lon
zation and movement that perpetrated acts of gen
Kampuchean political life, the acts of genocide whi
ocratic Kampuchean rule cannot be considered me
no statute of limitations on crimes against human
So long as those persons responsible for planning,
acts of genocide have not been punished, "whether th
responsible rulers, public officials, or private individ
puchea is in violation of its obligations under Artic
Similarly, Democratic Kampuchea remains in vi
ligations under Article V of the Genocide Convent
The Contracting Parties undertake to enact, in accordan
Constitutions, the necessary legislation to give effect
present Convention and, in particular, to provide effec
guilty of genocide or any of the other acts enumerated
The return to power of Pol Pot and the Khmer Rou

by a foreign military occupation that has been rep
ingly condemned by the international community
control, Khmer Rouge personnel continue to kill t
who are impediments to their goals.64 The threat
Kampuchea by the leaders responsible for genocide m
the concerns enumerated in Articles I and VII of the
to the prevention of genocide, in addition to the
sponsible for genocide in the past.
4. Destruction of a group "in whole or in part"
To fall within the terms of the Genocide Conventi

group "as such" must be "in whole or in part." A 1978
63. See, e.g., U.N. G.A. Res. 34/22, 14 Nov. 1979; Res. 36/6,
Oct. 1981; Res. 37/6, 28 Oct. 1982; Res. 38/3, 27 Oct. 198
Res. 40/7, 5 Nov. 1985; and Res. 41/6, 21 Oct. 1986. Also
Human Rights Res. 29 (XXXVI), 11 Mar. 1980; Res. 11 (XXXV
13, 25 Feb. 1982; Res. 1983/5, 15 Feb. 1983; Res. 1984/12
12, 27 Feb. 1985; Res. 1986/25, 10 Mar. 1986; and Res. 1987
United Nations, Report of the International Conference on
17 July 1981 U.N. Sales No. E.81.120 (1981), Annexes I and
64. See Kampuchea: After The Worst, supra note 29, at 170-2

49.43.100.124 on Wed, 28 Jun 2023 19:19:45 +00:00
Convention, undertaken at the d

Rights, noted:
On the question of the extent to

act committed with that end in v
agreed, during the debate in the Si
the act to be aimed at a group in
genocide should have as its purp
cordingly, an amendment (A/C.6/2
whole or in part" after the wor
Committee on Genocide was adop
make it clear that it was not nec
order to commit genocide.65
A subsequent UN study states:
Genocide need not involve the d

would seem to imply a reasonably
the group as a whole, or else a signi
... In order that the gravity of th
or diluted by the inflation of cases
present Special Rapporteur sugges
scale and of total numbers are rele
remain heinous crimes, even if the
The acts of genocide outlined i

these two UN studies in order
considered genocide.
5. The meaning of the phrase "
The fundamental rule of treaty in

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. A/CONF.39/1 1/Add.2 (1971), U.N. Sales No. E.70.V.5.

49.43.100.124 on Wed, 28 Jun 2023 19:19:45 +00:00
[Words] must be read in their natural and ordinary m

they normally have in their context.68
[The Court] must seek the interpretation which is

and reasonable way of reading the text.69
It is a cardinal principle of interpretation that words

sense which they would normally have in their context
would lead to something unreasonable or absurd.70
Reference to the context of a provision requ

attention to every other provision of a treaty, and
each word has a distinct meaning. With referen
United Nations, for example, the Court has state
[The Charter must be] read as a whole so as to give

order to avoid inconsistency. No word, or provisio
treated as superfluous, unless this is absolutely neces
... terms read as a whole.71
[A] 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 11 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 11 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.. Reports 1952, at 93, 194.
70. Polish Postal Service in Danzig, Advisory Opinion, 1925, P.C.I.J., Series B, No. 11, at
39.
71. Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter), Advisory
Opinion, I.CJ. 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).

49.43.100.124 on Wed, 28 Jun 2023 19:19:45 +00:00
The term "national minority" w

the Convention, as demonstrate
of the term "minority" from the
tional. Any interpretation which
tional minority" is inconsistent w
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, "lilt 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.

49.43.100.124 on Wed, 28 Jun 2023 19:19:45 +00:00
Article 32 of the Vienna Convention provides that

"supplementary means of interpretation, including t
the treaty and the circumstances of its conclusion, in
meaning resulting from the application of article
vention or where the meaning is "ambiguous or
result which is manifestly absurd or unreasonable."'7
While the meaning of the term "national group" se
be sufficiently clear so as not to require recourse to th
inclusion of the Khmer people within the term "nati
also consistent with the preparatory work which
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. E/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.).

49.43.100.124 on Wed, 28 Jun 2023 19:19:45 +00:00
supports the interpretation put forw

and other groups is not limited to m
More specific discussions of the wo
work unfortunately do not clarify t
resentative, "[T]here had been no
although the idea of a national gr
Egyptian representative went on to r
showing that "the idea of the nationa
zuelan delegate pointed out that "nati
Assembly] resolution 96 (1). Never
they should be excluded from the
The debate over a Swedish amend
the list of protected groups suppor
"national." As noted by the Soviet
a sub-group of a national group; it w
but one whose existence could neve
Some believed that there was no d
"national" group83 or between "eth
"ethnical" was added to the list of p
Despite a request early in the debat
term "national group,"86 the full com
to be required. In the context of th
in the travaux prdparatoires is contr
sition that the Khmer people of Kam
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 Rios (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.).

49.43.100.124 on Wed, 28 Jun 2023 19:19:45 +00:00
to constitute genocide, the acts must be "committe

in whole or in part, a ... group as such." It is the
group, in whole or in part, which distinguishes
genocide from the domestic crime of murder.
Turning first to the text itself, the language seem
must be a specific intent to destroy wholly or pa
but the particular motive or motives behind that d
For example, destruction of a geographically dis
in order to secure national borders would const
destruction of a religious group because it was cons
economic power or because its members were co
The words "in whole or in part" were added to th
the Sixth Committee by an amendment propose
ment occasioned little debate88 and was adopted
eight, with two abstentions.89 While the Norweg
that the amendment was not intended to change th
Reid of New Zealand supported the amendment
"that genocide had been committed even where the
of destroying a whole group."90 Mr. Morozov of th
the amendment "on the grounds that it expresse
historical reality."91
On the other hand, the questions of intent and m
or both should form part of an enumeration of acts
were the subject of extensive debate at the Sixth
through seventy-eighth meetings.92 The draft b
included, after enumeration of the groups protecte
of the national or racial origin, religious belief,
members"; a Venezuelan amendment eventually
87. See, e.g., remarks of Mr. Ordonneau (France) with respe

contained in the draft adopted by the Ad Hoc Committee:
The definition ... limited the groups which the Convention was d
way limited the motive of the crime, insofar as it included in th
which might be taken against any group as such, not only for reason
but also for other reasons, for example, national security or econ
lay in the appraisal of the motives. In most cases, however, the f
sure basis for judgment. In his opinion, the best procedure would b
authority the responsibility for deciding whether the guilty party w
Mr. Azkoul (Lebanon) stated, "A distinction had to be draw

reprehensible in themselves, such as massacres, and those,
be carefully weighed, such as restrictions on the use of
provision concerning cultural genocide was at that stage inc
Ad Hoc Committee, at 5-7, U.N. Doc. E/AC.25/SR.12 & C
88. See Sixth Committee debate, supra note 76, at 90-97 (73
89. Id. at 97.
90. Id. at 94.
91. Id. at 95.
92. See, in particular, id. at 117-39.

49.43.100.124 on Wed, 28 Jun 2023 19:19:45 +00:00
phrase "as such" for this specific l

United Kingdom to delete the orig
Venezuelan substitution.94
Little light as to any special inte
words "as such" is shed by the d
for example, the following statem
seventh meeting:
Mr. Demesmin (Haiti): "The Venez

by the Committee since it did not inc
Mr. Chaumont (France): "[T]he Fre

amendment, it being understood t
motive into the definition of genoc
Mr. Amado (Brazil): "[H]is delegation

because it did not include the moti
of intention.""97
Mr. Kaeckenbeeck (Belgium) suppo

Committee had to vote on the text
of such text, whether that interpre
delegations."'9
The Chairman: "[D]elegations could

Statements on the interpretation of
the history of the convention."99
The Venezuelan amendment, to

adopted by twenty-seven votes to
interpretation given to the words
is perhaps the fullest explanation
at some length:
Mr. Pdrez Perozo (Venezuela) recalle

that an enumeration of motives w
restrictive enumeration would be a
parties and would help them to av
defenders would maintain that the
than those listed in [the Ad Hoc Comm
93. Id. at 117, 133 (75th mtg.).

94. Id. at 125 (76th mtg.).
95. Id. at 130 (emphasis added).
96. Id. at 132 (emphasis added).
97. Id. (emphasis added).
98. Id.
99. Id.
100. Id. at 133.

49.43.100.124 on Wed, 28 Jun 2023 19:19:45 +00:00
was contrary to the spirit of General Assembly resolu

to indicate that intent was a constituent factor of the
He felt that his amendment should meet the views of

a statement of motives; indeed, the motives were i
words "as such . . ."
The purpose of both [the French and Venezuelan] am

that, for genocide to be committed, a group-for ins
be destroyed qua group. .... The aim of the amend
powers of discretion to the judges who would be cal
of genocide. The General Assembly had manifested
genocide as fully as possible. The adoption of the Ven
enable the judges to take into account other motives
Hoc Committee's draft.'10
The suggestion at the next meeting of the Committ

be set up to clarify further the words."as such"
thirty to fifteen, with three abstentions.'02
In resolving the question of intent, therefore, th
whether the intent of the government of Democ
destroy, in whole or part, one or more of the gro
tected under Article II of the Convention. The motiv
which may have led to the decision by Democrati
to destroy a group is immaterial, once it has been es
of that group per se was intended--whether it be a
or "tainted" national group. In the case of Demo
groups were, in fact, destroyed to a great extent, g
the government's intent.
The "intent" required by the Convention as a
element of the crime of genocide cannot be conf
to mean, "motive." "Despite difficulties in provin
Convention as written protects racial, ethnic, nat
from genocidal acts where the perpetrator claims on
The leadership of Democratic Kampuchea may h
tives, but this cannot justify the destruction of
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 an
United States Propose an Amendment? 13 Yale J. Int'l L.
104. With respect to the issue of motive, the international res
puchea under the Genocide Convention should be distinguish
culpability. In the latter context, an individual's motive may
the dangerousness of an alleged criminal act. However, a cri
be excused by a lawful ultimate goal, so long as the intention
criminal were present.
The objective international responsibility of a state "rests on

49.43.100.124 on Wed, 28 Jun 2023 19:19:45 +00:00
"intent" clause of Article II of t

the various prohibited acts hav
opposed to being accidental or u
Even were it to be considered
stances, be relevant to the quest
lawful motives by the Democr
cerned from the available eviden
dhist monkhood was not undertak
such as self-defense or a more
eliminate groups which were id
Kampuchean leadership. The tor
members of the Khmer nationa
imate requirements of national se
government, but rather was m
ideological impurity and a desir
It cannot be contended that th
intended every death that resul
policies. However, the consisten
pronouncements of the regime
country-the deterioration of s
death as the government conso
operation of extermination facilit
state authorities, and the perva
ricultural policies-indicates the
the highest levels of government
The contention that groups su
were primarily political groups
covered by the Genocide Conve
motives coincided with the hatr
deviance, the targeted destruct
government of Democratic Kam
scourge"'s0 the Genocide Conven
With respect to the Khmer na
tention on the part of the Dem
the Khmer group "in whole," as
Nevertheless, there was a clear in
which becomes apparent when
act: provided that agency and causal

of duty by result alone. .... [The pra
tribunals and the International Court h
as a general principle. .. ." I. Brownli
ed. 1973) (citations omitted).
105. Genocide Convention, Preamble.

49.43.100.124 on Wed, 28 Jun 2023 19:19:45 +00:00
destruction visited upon the Khmer people by the K

The wholesale massacres of families, villages, and
Khmer people provide persuasive evidence that t
Kampuchean government was not merely the eli
ponents or reform of the socioeconomic structure o
the wholesale remaking of the Khmer people ac
imposed vision. If the Genocide Convention mean
a state cannot destroy those parts of its own peo
sufficiently to the government's own view of so
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."'06 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. Bouhdibal of materials
submitted to it and the Commission on Human Rights under decision 9 (XXXIV) 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).

49.43.100.124 on Wed, 28 Jun 2023 19:19:45 +00:00
In the interpretation of a multilatera

a permanent international mechan
stated purposes there are particul
think, be had.
Its provisions were of necessity e
It may with confidence be asserted

a broad and liberal interpretation u
requires... something to compel a
While the destruction of part o

of that same national group may
by the drafters of the Genocide
in the commission of genocide is n
Mr. Morozov of the Soviet Union
Committee that the Convention's t
genocide but also "to any method
a view to destroying the physica
As was true for the Mandatory
South West Africa), the concept
"were not static, but were by defi
[I]nterpretation necessarily unde

municipal law, must adapt itself t
requirement, so far as they are fore
The law can never be oblivious to

munity standards in which it funct
The fact that the exact numbe

cannot be determined precisely d
the government of Democratic K
extent of genocide in Democrati
are required. As the Court stated
[An Applicant state] is often unable

to responsibility. Such a state sho
inferences of fact and circumstanti
in all systems of law, and its use is
107. Certain Expenses, supra note 71, at

108. Ad Hoc Committee, U.N. Doc. E/A
109. Legal Consequences for States of th
(South West Africa) notwithstanding
Opinion, I.C.J. Reports 1971, 16, 31 [h
110. Id. at 184 (sep. op. of de Castro).
111. South West Africa, Second Phase, J
Jessup).

49.43.100.124 on Wed, 28 Jun 2023 19:19:45 +00:00
be regarded as of special weight when it is based on

together and leading logically to a single conclusion.
It is difficult to imagine a more persuasive "series o

than the evidence of murder and partial destruction
groups and the Cambodian national group itself t
with respect to the period of Khmer Rouge rule
from 1975 to 1979. The single conclusion required
Democratic Kampuchea has violated its obligatio
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 Internatio

Court of Justice by its declaration of 9 September 1957 under Article 36(2)
of the Statute of the Court.'13 The declaration remains in force, "on condit
of reciprocity" and subject to three exceptions: that an application does not
concern (1) a dispute concerning which the parties have agreed to hav
recourse to some other method of peaceful settlement; (2) a dispute co
cerning a question which by international law falls exclusively within t
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 the
exceptions would be applicable to an application which accuses Democrat
Kampuchea of violations of customary international law and crimes agai
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 . . . [al 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.

49.43.100.124 on Wed, 28 Jun 2023 19:19:45 +00:00
As noted by the Court in the

has a legal interest in the oblig
international community as a w
Such obligations derive, for exam

the outlawing of acts of aggression
and rules concerning the basic righ
from slavery and racial discrimin
protection have entered into the
conferred by international instru
acter.14
It is difficult to imagine more b

right to life and freedom from to
is not a sham or collusive) has the
to invoke the Court's jurisdictio
bonds between a state accepting
the other states who already have
with those bonds established am
treaty."' 15
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."'16 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.""'17
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

49.43.100.124 on Wed, 28 Jun 2023 19:19:45 +00:00
2. Mass arbitrary killings
a. The facts
The nature and scope of killings carried out by the go

ocratic Kampuchea are summarized in Part I. Whether
also constitute genocide under the terms of the Genocid
mass and arbitrary nature cannot be doubted. Officia
prepared by the United Nations range from one mill
million,"'19 and the conclusions of these reports should
by the Court.'20
The notion of "arbitrary" killings injects a measure
the consideration of a state's actions. While some com
gested that "arbitrary" is merely equivalent to "illeg
reasoned majority view is that adopted by a special c
Commission on Human Rights in 1964, in the contex
bitrary" arrest, detention, and exile:
[T]he Committee has come to the opinion that "arbitrar

with "illegal" and that the former signifies more than th
that, while an illegal arrest or detention is almost always a
detention which is in accordance with law may neverthe
Committee, therefore, . . . has adopted the following de
detention is arbitrary if it is (a) on grounds or in accord
other than those established by law, or (b) under the p
purpose of which is incompatible with respect for the right
of person.'22
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.I.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.

49.43.100.124 on Wed, 28 Jun 2023 19:19:45 +00:00
The same analysis applies, mutat

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.123
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.

49.43.100.124 on Wed, 28 Jun 2023 19:19:45 +00:00
usage can be transformed into a custom with the bind

a qualitative factor of customary law.'24
State practice consists not only of the conduct of st

trade, or other channels, but can also be evidenced
international organizations.
The existence of international organizations, and in

Nations, means that there is an important new source o
law. The decisions of such organizations, if taken wi
consistently adhered to, can afford abundant and eas
the growth of international custom... ,'25
The numerous and almost unanimous recommendatio

sembly] regarding apartheid and racial discrimination
of the United Nations, but the Court cannot overlook
riding importance and relevance.126
[T]he positions taken up by the delegates of States in in

and conferences, and in particular in the United Nation
State practice.'2"
[T]he accumulation of authoritative pronouncements

larations, decisions, etc., concerning the interpretatio
competent organs of the international community ca
idence of the international custom referred to in Artic
General Assembly resolutions also may provide evid

even if they do not themselves create internationa
There would appear to be no objection of theory to the

Assembly resolution may be evidence of the opiniojuris
of which there is, apart from the resolution itself, ade
It can certainly be accepted that a General Assembly re

to the crystallisation process, and that the existence of su
or purporting to declare, the law will require only com
124. Id. at 175 (diss. op. of Judge Tanaka).

125. Statement of the Assistant Secretary-General in charge of Le
Am. Soc. Int'l L. 12, 13 (1952).
126. Legal Consequences, supra note 109, at 112 (sep. op. of Ju
127. Barcelona Traction, supra note 38, at 302 (sep. op. of Judg
128. South West Africa, supra note 111, at 292 [diss. op. of Judg
cited by Judge Tanaka in the context of the norm of nondiscrim
Declaration of Human Rights, Draft Declaration on Rights
national covenants on human rights (which were then only in
on the Elimination of all forms of Racial Discrimination, and
larations. Id. at 293.

49.43.100.124 on Wed, 28 Jun 2023 19:19:45 +00:00
of actual practice to support the co

into general customary [internation
There are differing views as to t

elements. Socialist jurists, for ex
of a legal obligation as constitut
bound to a customary norm.'13 O
of opinio juris, underscore that p
is generally evidenced by the ob
There is no other way [to demonstr

of opinio juris from the fact of the
its necessity felt in the internation
as to the subjective motives for ea
thing which is impossible of achiev
The essential problem is surely on

the burden of proof. The position
custom has to establish a general pr
is governed by legal categories, th
existence of an opinio juris. In oth
burden of proving its absence.132
There is much to commend the view

unless evidence can be adduced tha
of legal obligation.'33
i. Customary international law

and humanitarian norms
The International Court of Ju

concerning humanitarian or human
mature into binding general or cus
to the Genocide Convention, the
principles underlying the Conve
by civilized nations as binding, eve
As noted above, the obligations
community as a whole, as disting
in the field of diplomatic protec
129. H.W.A. Thirlway, International Cust

130. See generally Tunkin, supra note 11
131. North Sea Continental Shelf, supra
132. Brownlie, supra note 104, at 8 (citat
133. Baxter, Treaties and Custom, 129 R
134. Reservations to the Genocide Conve

49.43.100.124 on Wed, 28 Jun 2023 19:19:45 +00:00
cerning basic human rights.135 Judge Riphagen not

"customary international law recognizes-in part
World War-respect for fundamental human freed
international community."'36
The linkage between the human rights provisions
Charter and the legal obligations of states is ma
dissent by Judge Tanaka in the South West Africa c
From the provisions of the Charter referring to the hum

freedoms it can be inferred that the legal obligation t
fundamental freedoms is imposed on member State
Furthermore, there is no doubt that these obligations

and that they also have a legal character by the very na
Therefore, the legislative imperfections in the defini
freedoms and the lack of mechanism for implement
reason for denying their existence and the need for t
In the later Legal Consequences (Namibia) case, Ju

inter alia, the Universal Declaration of Human R
Charter, and resolutions of the General Assembly
arriving at his conclusion that the right to equality
norm.
Although the affirmations of the [Universal] Declaration [of Human Rig

not binding qua international convention . . ., they can bind States on t
of custom within the meaning of paragraph 1(b) of [Article 38 of the St
the Court] ... because they constituted a codification of customary la
because they have acquired the force of custom through a general
accepted as law....38
In the context of acts which harm another state, Judge Alvarez no
the Corfu Channel case that "acts contrary to the sentiments of h
committed by a State in its territory, even with the object of defend
security and its vital interests," should be considered as "internati
linquenc[ies]," for which "there cannot be extenuating circumstan
Commentators and jurists agree that certain humanitarian or
rights norms may form part of customary international law.
[TIhere has been a movement away from unmitigated state sovereignty,

neutrality, and the old-world diplomacy of the League Covenant, toward
universality, [and] fundamental human rights..... The general principles o
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 Judg
138. Legal Consequences, supra note 109, at 76 (sep. op. of Judge Ammoun).
139. Corfu Channel, supra note 112, at 45-46.

49.43.100.124 on Wed, 28 Jun 2023 19:19:45 +00:00
national law, both customary and c

formation through the work of the
agencies by a process which ensure
The recently revised Restateme
United States identifies seven sp
tomary law is generally accepted
are generally agreed."141 The Re
This section adopts the view that
particular human rights violations
This view is accepted by virtually a
of South Africa in respect of aparth
practices set forth in this section
that they are violations of intern
The practice of states has establishe
law.... Clauses (a) through (e) ... re
major legal systems that may have
Other scholars assert that all o

Declaration of Human Rights now
national law.143 This interpretat
Teheran, adopted by the Internatio
and the statement adopted by th
Rights which met in Montreal in
the Universal Declaration "constit
international community,"'144 and
laration of Human Rights constit
[UN] Charter of the highest orde
of customary international law."14
While there is no necessity in th
140. Elias, Modern Sources of Internation

Essays in Honor of Philip C. lessup 67-
1972).
141. American Law Institute, 2 Restatem
States ? 702 and Comment (1988).
142. Id., ? 702, Reporters' Notes at 167
143. See, e.g., Gros Espiell, The Evolving
Third World Approaches, in Human Rig
45 (B.G. Ramcharan ed. 1979); Humphr
Its History, Impact and Juridical Char
International Human Rights: Problem
laration is part of customary internatio
UN Charter "is of no particular significa
Historical Foundations of Human Rights
Dimensions of Human Rights 24 (K. Va
144. Reprinted in United Nations, Human
at 18-19, U.N. Doc. ST/HR/1/Rev.1, U
145. Reprinted in 9 J. Int'l Commission of

49.43.100.124 on Wed, 28 Jun 2023 19:19:45 +00:00
of the existence and effect of peremptory norms of

mentators consider that fundamental human rights n
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;'47 freedom from slav-
ery;148 the norm against racial discrimination and apartheid;'49 and the right
to equality.150 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.151
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, Jus Dispositivum and jus cogens in International Law, 60 Am. J. Int'l
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, jus 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. A164/Add.l (1945) at 188.

49.43.100.124 on Wed, 28 Jun 2023 19:19:45 +00:00
summary execution to restore pub

by the constitutions of the states a
the fundamental rights of persons
The right to life is not absolute

after conviction by a competen
necessary, take life in defense o
using lawful force in the contex
its inherent right to self-defense
Nations Charter. No principle o
law, however, can justify or excu
in Democratic Kampuchea, as o
While Democratic Kampuchea i
treaty which prohibits arbitrar
exception of the Genocide Conve
protection of the right to life in w
that the right has attained the
recognized by the Court in the
There is no doubt that this process

has passed into the general corpu
binding on all States] is a perfect
occur: it constitutes indeed one of
of customary international law ma
not lightly to be regarded as havi
Even "[t]reaties that do not pu

ternational law at the time that t
the passage of time pass into cus
The existence of a considerable num

which all or almost all States are
treaties) and also extensive effort
law have led to a situation when
of changing, developing and creati
Although set in the context of t

tification of customary law, the f
are analogous to those which sh
IT]he Court is bound to take into

in Article 22 of the Covenant [c
152. Inter-American Commission on Hu

(1982) (emphasis added) (citations om
153. North Sea Continental Shelf, supra
154. Baxter, Treaties and Custom, supra
155. G.I. Tunkin, Co-Existence and Inte

49.43.100.124 on Wed, 28 Jun 2023 19:19:45 +00:00
Namibia] -'the strenuous conditions of the modern w

and development' of the peoples concerned-were no
definition evolutionary. . ... IV]iewing the institutions
take into consideration the changes which have occu
half-century, and its interpretation cannot remain una
development of law, through the Charter of the Unite
customary law.15"
The law can never be oblivious to the changes in life

munity standards in which it functions. .... As was said
of Judge Sir Percy Spender in Certain Expenses of t
A general rule is that words used in a treaty should be re
they bore therein when it came into existence. But this m
with the purposes sought to be achieved . . [in the ca
general rule above stated does not mean that the words
comprehend such situations and contingencies and manife
as were within the minds of the framers of the Charter.
instrument in 1945 or today could provide against all th
future should hold.'s'
In the North Sea Continental Shelf case, a majority

that the norm at issue (the equidistance principle)
realm of customary international law by virtue of it
of the Geneva Convention on the Continental Shel
was based largely on three factors: (1) the secondary
of states to utilize the equidistance principle, which
primary obligation under the Convention to effect del
(2) the possibility under the Convention of entering r
6; and (3) the relatively limited number of ratific
the Convention, which the Court termed "respectable
ficient."158 None of these objections is applicable t
(a) Respect for the right to life is a fundamental o
Human rights treaties are by their very nature "no

treat subjects appropriate for passage into the realm o
international law. Respect for the right to life is
fundamental importance.
The right to life enunciated in article 6 of the [Internat

and Political Rights] . . . is the supreme right from
permitted even in time of public emergency which t
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.

49.43.100.124 on Wed, 28 Jun 2023 19:19:45 +00:00
The Committee considers that State

of genocide and other acts of mass
The protection against arbitrary de

by the third sentence of article 6 (1
considers that States parties should
deprivation of life by criminal acts,
own security forces. The deprivatio
matter of the utmost gravity. Ther
the circumstances in which a pers
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 5(b));'60 International
Covenant on Civil and Political Rights (Article 6);'6' Geneva Conventions
of 1949 (common Article 3);'62 Protocol II to the 1949 Geneva Conventions
(Article 4);'63 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 I).168
159. Human Rights Committee, General Comment under article 40(4) of the 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. A/32/144 (1977).
164. Signed 4 Nov. 1940, entered into force 3 Sept. 1953, 312 U.N.T.S. 222.
165. Signed 22 Nov. 1969, entered into force 18 July 1978, O.A.S.T.S. No. 36, p. 1, O.A.S.
Off Rec. OEA/Ser.UV/iI.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(lII), at 71, U.N. Doc. A/810, (1948).
168. Signed 2 May 1948, O.A.S. Off. Rec. OEA/Ser.LNV/II.23, doc. 21, rev. 6.

49.43.100.124 on Wed, 28 Jun 2023 19:19:45 +00:00
The region most afflicted in recent years by the p

killings masquerading as "disappearances" is Lati
the General Assembly of the Organization of Am
"the practice of forced disappearance of persons in t
to the conscience of the hemisphere and constit
manity."'69 This characterization of forced disappear
humanity-absent specific conventional obligation
arbitrary killings by states (of which forced di
manifestation) must also be a violation of contem
The fundamental and universal nature of the righ
by its designation as an "inherent" right in the Cov
Rights, a status not accorded to any other right.
That only this right is characterized by the Covenant

its primacy and emphasize that it derives from the ve
existence ...
The term "inherent" may indicate also that the framers of the Covenant felt
the human right to life is entrenched in customary international law, so
Article 6 is merely declaratory in nature and does not create new internatio
law. "70
Another commentator, in the context of a discussion of the prohibition of

juvenile executions, concludes that "[t]he travauxpr6paratories 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... ." One authority 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(X11--0/83), para. 4 (emphasis added), cited in Annual Report of
the Inter-American Commission on Human Rights 1983-1984, OAS Doc. OEA/Ser.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.

49.43.100.124 on Wed, 28 Jun 2023 19:19:45 +00:00
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.174
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 Shel
possibility of reservations being made to the equidistance prin
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."75 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. A/CN.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.

49.43.100.124 on Wed, 28 Jun 2023 19:19:45 +00:00
In the Reservations to the Genocide Convention

that only those reservations not incompatible with
of the Convention were permissible; this rule is co
of the Vienna Convention on the Law of Treaties. In t
rights treaties, it might well be considered that a
obligation to guarantee a nonderogable right woul
inconsistent with the basic protective purpose of s
state has entered a reservation to any treaty provisio
to life or protection from arbitrary killing.
(c) Human rights treaties recognizing the right to

widely ratified
The nearly universal adherence to human rights an

ties protecting the right to life also stands in stark
"respectable" number of state parties noted by the Co
Geneva Convention on the Continental Shelf. More th
to each of the four 1949 Geneva Conventions on h
cable to armed conflict, common Article 3 of whi
any time and in any place whatsoever," in a quasi- un
of the fundamental nature of the principles set forth t
1987, there were 124 parties to the Convention on
Forms of Racial Discrimination and eighty-six par
Civil and Political Rights (which guarantees the "inher
All of the cited General Assembly resolutions were
senting vote.
In the regional context, all twenty-one members of
are parties to the European Convention on Human Rig
of the Organization of American States were partie
vention on Human Rights as of mid-1987; and, as of A
states had ratified or acceded to the African Charter
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.179
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 num

specifically that the human right
international law.
These fundamental rights [includin

acter inasmuch [as] they are bin
conventional obligation or of an
fundamental rights are considere
spective of time and place, and
Fundamental human rights .., .wou

notion [contained in article 38, par
peremptory norms of general in
a dynamic process.18'
The Restatement (Third) of the
includes within those human righ
law "the murder or causing the
district court has recently conf
execution or murder by the state
and is of course obligatory.""'82
"[Tihe essential core 'right to
jus cogens."I83 "[ll]t is 'the supr
the Human Rights Committee, '
acts of mass violence causing ar
There is thus overwhelming evid
human right which forms part o
While its precise content may be
it cannot be doubted that the mas
Kampuchea fall within the scope
to life and constitute gross violat
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 (T. 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

precipitously in January 1979. Tens of thousands
were discovered at Tuol Sleng and have since bee
and (in some instances) translated by Cambodian
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.85 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 fall 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.

49.43.100.124 on Wed, 28 Jun 2023 19:19:45 +00:00
in certain areas. So politics take

is always necessary to do consta
c. At the same time, it is necessa

heartedness, of not daring to tor
to our questions from our enem
In sum, whether doing propagan
to ask them or accusing them of
to a stance of not being half-hea
this way can we work to good
Other documents from Tuol

for applying torture were syste
on Tuol Sleng prisoners note in
From the confessions of former

was indeed a prison and that to
and location prove that it can o
government leadership and its
infiltrators as Democratic Kamp
It should be remembered that

prison system in Democratic Kam
level prisons, interrogation, an
umented.
The fact of systematic, widesp
ocratic Kampuchea cannot be dou
an international norm of genera
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.

49.43.100.124 on Wed, 28 Jun 2023 19:19:45 +00:00
all circumstances, during international and internal

situations, and under normal peacetime condition
of 1899 and 1907 on the Laws and Customs of W
prisoners of war "must be humanely treated."'17
nition of "crimes against humanity" employed by th
Tribunal and subsequently confirmed unanimously b
are "inhumane acts committed against any civilian
Article 3 of the 1949 Geneva Conventions prohibits,
to armed conflicts not of an international charac
person, in particular . .. mutilation, cruel treatment
respect to prisoners of war, Article 99 of the T
provides: "No moral or physical coercion may be
war in order to induce him to admit himself guil
is accused."190 Protocol II to the 1949 Geneva Co
adopted in 1977 and concerns internal armed con
time and in any place whatsoever ... violence to the l
or mental well-being of persons, in particular murd
ment such as torture, mutilation or any form of
[and] collective punishments."'191
It is not surprising that a prohibition which oper
is also applicable without qualification in time o
Declaration of Human Rights states, "No one shal
or to cruel, inhuman or degrading treatment or puni
has been confirmed and reiterated in almost ident
international agreements for the protection of hum
Nations also has adopted several normative decla
codes of conduct which recognize the fundamenta
ture under any circumstances.'94
187. Hague Convention on the Laws and Customs of War o

entered into force 4 Sept. 1900, 32 Stat. 1803, T.S. 403, Ann
on the Laws and Customs of War on Land, signed 18 Oct.
Jan 1910, 36 Stat. 2277, T.S. 539, Annex, art 4.
188. Charter of the International Military Tribunal, annexed to
cution and Punishment of the Major War Criminals of the E
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

49.43.100.124 on Wed, 28 Jun 2023 19:19:45 +00:00
Perhaps the most significant stat

of the international prohibition
Protection of All Persons from Be
Inhuman or Degrading Treatme
the UN General Assembly in 197
the right to be free from torture
of the UN Charter.
Article 2 of the Declaration pr
Any act of torture or other cruel, in

is an offence to human dignity a
purposes of the Charter of the Un
rights and fundamental freedoms
Human Rights.
In keeping with the fact that no

torture is permitted under any int
No state may permit or tolerate to

treatment or punishment. Excepti
a threat of war, internal political in
not be invoked as justification of to
treatment or punishment.
In 1984, the United Nations un

nature and ratification a Conven
human or Degrading Treatment
plementing "the existing prohib
of the practice of torture and othe
or punishment."'96 While the pr
the parties to the convention, th
stantive prohibition of torture is b
Other international organizatio
ture of the international prohib
Inter-American Juridical Committ
approved a Draft Convention Def
and, in 1985, the Convention wa
to the Convention "[rleaffirms t
Enforcement Officials, art. 5, GA Res.

Principles of Medical Ethics, Principle
51) 230 (1982).
195. GA Res. 3452(XXX), 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).

49.43.100.124 on Wed, 28 Jun 2023 19:19:45 +00:00
inhuman or degrading treatment or punishment con

human dignity and a negation of the principles c
of the Organization of American States and in t
Nations... ."'199
At the national level, one of the most signifi
years is that of the US Court of Appeals for the
of Filartiga v. Pina-lrala.200 After an extensive rev
sources, including international agreements to w
not party as well as resolutions of the United N
the court concluded unequivocally:
[A]n act of torture committed by a state official aga

violates established norms of the international law o
the law of nations .... [The right to be free from t
customary international law. ... The prohibition is c
admits of no distinction between treatment of aliens
The brief filed as amicus curiae by the governme

in the Filartiga case agreed that "[i]nternationa
universal condemnation of torture."202 The Restatem
Relations Law of the United States also identifie
inhuman or degrading treatment or punishment" a
international law.203 The Reporters' Notes to the R
that "the prohibition against torture, at least, m
into international law as a general principle com
tems."124 Other publicists and commentators agree
eral or customary international law.205
It is unfortunately the case that torture occurs i
domestic and international prohibitions. Such d
199. Author's translation.

200. 630 F. 2d 876 (2d Cir. 1980). See also Tel-Oren v. Libyan
(D.C.Cir. 1984), cert. denied, 470 U.S. 1003 (1985); Forti v
182; Guinto v. Marcos, 654 F. Supp. 276 (S.D.Cal. 1986);
Supp. 246 (D.D.C. 1985). Cf., e.g., Blum & Steinhardt, Fed
national Human Rights Claims: The Alien Tort Claims Act af
Harv. Int'l L.J. 53 (1981); Comment, Torture as a Tort in V
Filartiga v. Pena-Irala, 33 Stan. L. Rev. 353 (1981).
201. Filartiga, at 878, 882, 884 (emphasis added).
202. Memorandum for the United States as Amicus Curiae, F
203. Restatement (Third) of the Foreign Relations Law of th
?702.
204. Id., Reporters' Notes, at 479.
205. See, e.g., P. Sieghart, The Lawful Rights of Mankind 6
the Application and Interpretation of Civil and Political Righ
note 143, at 140; accord van Boven, id., at 45, 107; Dinst
Lillich, supra note 183, at 127; D.F.JJ. De Stoop, Australi
Law, in International Law in Australia 155, 161 (K. W. Ry

49.43.100.124 on Wed, 28 Jun 2023 19:19:45 +00:00
however, detract from the status

of customary international law, a
negate domestic penal legislatio
It must be recognized that the in
fundamental freedoms is weak an
forcement mechanisms] do not con
tection. That a norm is lex imperfec
Thus, neither human rights nor

torture are any less binding bec
the prohibition against torture is
the right under international or
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, "[Gleneral 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.11208
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 11 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).

49.43.100.124 on Wed, 28 Jun 2023 19:19:45 +00:00
not been restricted to that particular era of the twe

killings, which at least arguably rise to the level of geno
against Armenians, Hutus, Ibos, Baha'is, and indigenou
to the Khmer Rouge killings in Democratic Kampuche
into force in 1951, no attempt has been made to
Convention to stop or even draw attention to these or si
Despite the fact that Cambodia has accepted the comp
the Court, no attempt has been made to condemn the
ations of customary international law.
Many reasons, purportedly based on considerations
been put forward by states to excuse their failure to act
evidence now available concerning the events in Dem
from 1975 to 1979. The Association of South East Asi
countries21 have expressed concern that an application
Court of Justice would, by attacking one of the mem
indirectly support the continuing Vietnamese occupa
weakening the opposition forces. Other states in the reg
fear that filing a case against Democratic Kampuchea
stitute recognition of the CGDK government or query th
considered in Part II. European and other states simply d
to the situation, and all seem wary of combining issues o
and human rights.
While the UN General Assembly and Commission
annually adopt resolutions calling for self-determination
has been no formal consideration of the human right
Pot or currently since the Bouhdiba report in 1979.2"
expect that politics will not have a significant impact
but this consistent refusal to address a problem with
which there can be no lasting political settlement in
good politics. It is nearly a decade since the Vietname
refusal of the international community to condemn a re
Pot has contributed to the present stalemate. Meetin
between Prince Sihounouk and representatives of the
Kampuchea may be encouraging, but they cannot re
brooding presence of the Khmer Rouge and its genoc
209. It could be argued that one such attempt was made by Pakistan,
to the ultimately successful secession of Bangladesh, but the app
part of the overall political settlement. See Trial of Pakistani Pr
Protection, Order of 13 July 1973 and Order of 15 Dec. 1973
328, 347.
210. These countries are Brunei, Indonesia, Malaysia, Philippines,
211. See, e.g., GA Res. 41/6, 41 U.N. GAOR, Supp. (No. 53) 17
Human Rights Res. 1987/6, U.N. ESCOR, Supp. (No.5) 25 (1987)
cited therein.

49.43.100.124 on Wed, 28 Jun 2023 19:19:45 +00:00
It is inconceivably callous and

refuse to address the genocide
under the Khmer Rouge on the
nient. Had Nazi Germany not been
also would have permitted Hitle
postwar coalition that emerged
the Allied powers.
Will Cambodians be forced to
in decades to come if the latter ar
Armenians pursue Turkish govern
six decades ago? Will revisionist
as others attempt to deny the d
Mao Zedong? If there is a settlem
draw from Cambodia, who will
policies are reintroduced by the s
in the new government?
The outcome of litigation is ne
dictional and interpretative pro
Kampuchea under the Genocide
can be overcome, both under th
of an application against Democ
pulsory jurisdiction.
The fact that no government
law on behalf of Cambodian vic
law than of governments.22 A fin
212. The following countries have ratif

the Court's competence under art. IX
the Court under art. 36 of the Statut
Colombia, Costa Rica, Denmark, El Sa
Israel, Liberia, Luxembourg, Mexico,
Pakistan, Panama, Philippines, Sweden
does not consider art. IX of the Geno
responsibility beyond that recognized b
law"; objections to this reservation hav
by India and Israel exclude disputes wit
relationsa and India also requires tha
Convention have the consent "of all th
International Instruments, supra note
Afghanistan, Argentina, Bahamas, Br
Ecuador, Egypt, Ethiopia, Fiji, Franc
Greece, Guatemala, Iran, Iraq, Ireland
Maldives, Mali, Monaco, Mozambiqu
Korea, Saint Vincent and the Grenadine
Togo, Tonga, Tunisia, Turkey, United
Genocide Convention (without relevant
compulsory jurisdiction of the Court u

49.43.100.124 on Wed, 28 Jun 2023 19:19:45 +00:00
that genocide was committed in Democratic Kampuch

rule will bring no individuals to justice, ease no p
suggest, however, that at least one government takes
humanitarian commitments, and it would offer some
bodians who wish again to govern themselves without

49.43.100.124 on Wed, 28 Jun 2023 19:19:45 +00:00

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Hannum InternationalLawCambodian 1989

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International Law and Cambodian Genocide: The Sounds of Silence

Author(s): Hurst Hannum

Stable URL: https://www.jstor.org/stable/761936

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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 Kam

1. See, e.g., J. Barron and A. Paul, Murder of a Gentle Land

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crimes against humanity, i.e., m

PART I. THE FACT OF GENOCIDE4

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

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Article 11 of the Convention on the Prevention

any of the following acts committed with intent to

(a) Killing members of the group;

With the objective to purify Kampuchea and pur

2. Acts of genocide against ethnical and racial g

The most desperate people in Democratic Kampuch

To that end, the Khmer Rouge adopted a philosoph

The Cham, a non-Khmer people of Malayo-Pol

7. The major groups that Khmers considered to be distinct f

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3. Acts of genocide against religious groups

Article 11 of the Democratic Kampuchean Constitution provided "the right

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

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At the outset of the 1970 to 1975 civil war, the

4. Acts of genocide against the Khmer national

Democratic Kampuchea's leadership was determin

14. Quinn, The Khmer Krahom [Rouge] Program to Create a C

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to purify and propagate the "

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

21. Hawk, supra note 4. See also Becker, supra note 2, at 18

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that time, but particular days we

b. Serious bodily or mental harm

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partment of Psychiatry of the School of Medic

The patients' horror stories are largely confirmed by ot

c. Deliberate infliction of conditions of life cal

Under the Genocide Convention, genocide also

27. The 'Concentration-Camp Syndrome' Among Cambodian

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Cambodia, more people died as a

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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in 1982 concluded that over 3,000,000 people

PART II. THE DELIBERATE KILLINGS AND DESTRUCTION OUTLINED

1. Jurisdiction and admissibility

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

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vention remains in force for s