The Atrocities in Cambodia and
Kosovo: Observations on the
Codification of Genocide
Jason Abrams
The brutal episodes of violence that gripped Cambodia in the 1970s and
Kosovo at the end of the 1990s provide useful windows through which we
can consider some key issues concerning the codification of genocide.
Before addressing the two case studies of this paper, I would like to offer some reflections on an important point that was raised at a panel on
genocide chaired by Paul Williams at the most recent International Law
Weekend in New York. Several of the panelists lamented that the debate
over whether a given case of human rights atrocities constitutes genocide
often overshadows, and even deflects from, the imperative of addressing
the abuses. They also questioned the tendency of this determination to
relegate those cases that do not qualify as genocide to a lower status on the
hierarchy of international crimes.
Certainly, taxonomic debates over whether a case of mass atrocities
constitutes genocide have sometimes occupied an inflated place in our
response to the atrocities; thereby obscuring the more important and immediate issue of how to address them, and even providing an excuse for
inaction in the face of terrible episodes of brutality. Rwanda is, of course,
a depressing case in point. A notion has taken hold that cases of genocide
occupy the pinnacle of some hierarchy of gravity under international law,
and that if a case does not qualify as genocide, its evil and the suffering of
the victims are of some lesser order. The concomitant assumption has
arisen that if a case is horrible, it must be genocide. In response, I would
simply join the chorus of those who recognize that whether a given case
constitutes genocide, crimes against humanity, or war crimes should not
determine if and how we respond to the atrocities. Nor can it constitute a
judgment of the relative evil of the crime or the suffering of the victims.
However, this does not mean that the determination of whether atrocities constitute genocide is a meaningless inquiry. This inquiry has its
 Legal Officer in the United Nations Office of Legal Affairs, 1995 to 2000.
Consultant to the U.S. Department of State on international law issues relating to the
crimes of the Khmer Rouge, 1994 to 1995. Attorney-Adviser in the Office of the
Legal Adviser, U.S. Department of State, 1987-1990.
303
304
NEW ENGLAND LAW REVIEW
[Vol. 35:2
place in our examination of an episode of atrocities, most notably –
though not exclusively – in the courtroom. Like national law, international law has categorized international crimes and defined them, albeit not
always neatly or clearly, by certain elements which establish each crime as
a distinct offense under international law. Genocide is defined as the
commission of certain acts against certain enumerated groups with the
intent of destroying that group. The codification of international crimes,
whether in treaties, international tribunal statutes, or national laws, requires those assessing or prosecuting offenses to follow this taxonomy,
thus giving rise to the need to determine whether abuses constitute genocide.
While one can envision different systems of classification, the system of
core crimes currently reflected in international law has a certain philosophical sensibility to it. In this connection, I would submit that the essence of genocide – the intentional destruction of groups – justifies genocide’s place as a unique crime within the international law’s system of
core crimes. An act of genocide constitutes not just an attack on an individual, but also a threat to the group with which the individual is identified. It is an offense against a core aspect of humanity – the very nature of
collective human identities.
Accordingly, while defining an episode of mass atrocities must not preoccupy us, it is not an exercise devoid of purpose. The task for those who
participate in the public discourse on these issues is to help move the discussion away from an obsessive focus on whether atrocities are genocide
or not. They must instead focus on creating an understanding of the full
range of core international crimes and a recognition that they are all serious and worthy of robust measures to prevent, halt, and punish them.
CAMBODIA
The first of our two case studies is the Khmer Rouge era in Cambodia.
In April, 1975, the Khmer Rouge took Phnom Penh, after a protracted
armed struggle against the rule of Prince Norodom Sihanouk and the corrupt and inept Lon Nol regime which followed it. As its core goal, the
regime sought the creation of a pure Khmer nation, completely self-reliant
and free from the influence of perceived foreign and class enemies. This
would be achieved through a massive reorganization of the economic and
social system and the persecution and physical elimination of those elements of Cambodian society regarded as enemies of the new system. The
ensuing four-year horror has now been extensively etched onto the public
consciousness.
Accordingly, I will not go into extensive detail on the horrific acts that
were visited on Cambodia during this living nightmare, but will instead
2001]
CODIFICATION OF GENICIDE
305
sketch out the general pattern of abuses as it relates to the question of gencide.1 In the book I co-authored with Professor Steve Ratner, we group
these abuses into four categories:2
The first category involved a brutal forced evacuation of the cities and
towns that drove two to three million people into the countryside within a
week of the Khmer Rouge’s victory. This project sought both to dilute the
power of those perceived as threats to the new society and to assist the
regime’s plan to impose a massive system of communal agriculture on
Cambodia. Thousands of city-dwellers, especially the young, aged, and
weak, perished in the exhausting and brutal forced marches into the countryside.3
The second category of abuses related to the conditions imposed on the
population at large and was the single largest source of deaths during the
Khmer Rouge’s rule. Having emptied the cities and towns, the Khmer
Rouge organized the population into a vast system of agricultural communes, where inhabitants were forced to work long hours growing crops
or digging irrigation ditches under the supervision of Khmer Rouge cadre
or soldiers. Hundreds of thousands perished from starvation, disease, and
exhaustion caused by inadequate food and medicine and the oppressive
work requirements. Khmer Rouge overseers routinely killed those unable
or unwilling to work, sometimes along with their families. The regime
also sought to tear down traditional family structure by separating children
from their parents and other measures intended to establish Khmer Rouge
control over social relations.4
The third category of atrocities focuses on the regime’s goal to exterminate those groups it perceived to be inconsistent with its vision of a pure
Khmer nation. In a systematic campaign, Khmer Rouge cadre and soldiers summarily executed officials of the prior regime and their families.
The regime also targeted teachers, students, and other educated elements
of the population, whom it suspiciously regarded as being under the influence of foreign elements and as potential counter-revolutionaries. Several
ethnic minorities faced discrimination, forced assimilation, and death,
although disagreement among scholars continues over the regime’s pre-
1.
For detailed historical accounts of the Khmer Rouge period, see, e.g.,
DAVID P. CHANDLER , THE TRAGEDY OF C AMBODIAN H ISTORY: POLITICS , WAR, AND
REVOLUTION SINCE 1945 (1991); BEN KIERNAN, HOW POL P OT CAME TO POWER: A
HISTORY OF COMMUNISM IN KAMPUCHEA (1985); W ILLIAM SHAWCROSS ,
SIDESHOW: KISSINGER , NIXON AND THE DESTRUCTION OF CAMBODIA (rev. ed.
1987).
2.
STEVEN R. RATNER & JASON S. ABRAMS , ACCOUNTABILITY FOR HUMAN
RIGHTS ATROCITIES IN INTERNATIONAL LAW: BEYOND THE NUREMBERG LEGACY
232-36 (1997).
3.
See id. at 232-33.
4.
See id. at 233-34.
306
NEW ENGLAND LAW REVIEW
[Vol. 35:2
cise motives. The Cham, a Muslim sect, suffered immensely, as the regime broke up their families, banned their language and customs, and
killed their leaders. After initially undertaking an expulsion of the ethnic
Vietnamese population, the Khmer Rouge eventually began killing those
who remained behind. The ethnic Chinese and Thai communities also
faced especially harsh treatment by the regime. As part of its effort to
destroy the influence of religion on Cambodia, the Khmer Rouge drove
Buddhist priests and monks from their religious practice and forced them
onto the communes in the countryside, killing those who resisted. 5
Finally, the Khmer Rouge’s rampant paranoia fueled a continuing effort
to search for and destroy perceived enemies in its own ranks. Officers
whose loyalty was suspect, as well as many of their families, were killed
in large numbers, often after undergoing extensive torture at one of the
regime’s torture and interrogation centers. Nearly 20,000 individuals
passed through the main center in Phnom Penh, with only a handful surviving their time there.6 By the time the Vietnamese drove the Khmer
Rouge from power in January 1979, the atrocities had left approximately
one and a half million Cambodians – about twenty percent of the population – dead.
The historical record shows that the Khmer Rouge subjected the Cambodian people to virtually all of the acts enumerated in the definition of
genocide. The more difficult issues are the extent to which these acts
were carried out against groups protected under the definition and whether
the acts were carried out with the requisite intent to destroy the group.
The historical record provides a strong case that acts of genocide were
committed against the Cham minority group, the ethnic Vietnamese, Chinese, and Thai minority groups, and the Buddhist priest-hood and monkhood. These groups were subjected to an especially harsh measure of the
acts constituting genocide, and they qualify as protected groups under the
definition of genocide: the Cham as an ethnic and religious group; the
Vietnamese, Chinese, and Thai minorities as ethnic and perhaps racial
groups; and the Buddhist priest-hood and monk-hood as a religious group.
There is ample evidence of the regime’s genocidal intent in carrying out
these acts, including their public statements, the effort to destroy the
groups’ distinctive traits, and the number of dead.
However, similar acts committed against other groups, for example officials of the prior regime, intellectuals, and professionals, would not constitute genocide, since these groups are not protected groups under the
definition of genocide as it has been codified. As for the abuses inflicted
on the population at large, as horrible as they were, it would be difficult to
conclude that these were committed with genocidal intent.
5.
6.
See id. at 234-35.
See id. at 235-36.
2001]
CODIFICATION OF GENICIDE
307
Nevertheless, some have asserted that these acts constituted genocide
against the Khmer national group; however, such a conclusion is difficult
to accept as a legal matter. While the Cambodian people clearly constitute
a national group, it would appear that the Khmer Rouge targeted their nonminority Cambodian victims as members of political, professional, or economic groups, which are not protected groups under the definition of genocide, rather than as members of a national group. Still others were victims of random violence or harsh conditions imposed on the general population, and were also not targeted as members of any particular group. To
conclude that these were all victims of genocide is to stretch the established definition of genocide beyond any meaningful limitations, as virtually any economic, social, or political group could be regarded as part of a
larger national group or groups. At the same time, this conclusion reveals
the need for the definition of genocide to expand beyond the limited set of
groups covered by it.
KOSOVO
The general facts of the Kosovo episode are also fairly widely known. 7
Prior to the 1992 break-up of Yugoslavia, Kosovo was an autonomous
province of the country. After Belgrade’s revocation of Kosovo’s autonomy in 1989 and the re-imposition of Serbian control, the Albanian population, which constituted ninety percent of the province’s population, refused to accept Serbian domination and began to undertake measures
aimed at reasserting their authority in the province, such as, the establishment of parallel public institutions. Rising Serbian nationalism led to increasing repression of the Albanian majority, including the dismissal of
Albanians from their jobs at public institutions.
As tensions between the two communities spiraled downward, in 1998
the Kosovo Liberation Army (KLA) began to engage in armed attacks
against Serbian targets, and the Serbs responded with the destruction of
Albanian villages, executions of Albanians, and other acts of terror, forcing many ethnic Albanians to flee. In the wake of a failed cease-fire in
1998, the KLA and Serb clashes escalated, eventually prompting NATO
intervention. As the NATO campaign proceeded, Serb forces stepped up
their campaign of terror, ultimately resulting in the mass expulsion of approximately one million people and the execution of some ten thousand.
The International Criminal Tribunal for the Former Yugoslavia stepped in
with the indictments of Slobodan Milosevic and a handful of other Yugoslav officials for crimes against humanity and war crimes. The violence
7.
More detailed descriptions of the violence can be found in the extensive
reports produced by journalists and international and non-governmental organizations.
308
NEW ENGLAND LAW REVIEW
[Vol. 35:2
was eventually halted by an agreement for the withdrawal of Serb forces
and the placement of Kosovo under international administration.
Certainly, many of the killings and other acts of terror perpetrated
against the Albanian population qualify as acts enumerated under the definition of genocide, and the Albanian population qualifies as a national or
ethnic group. However, as in most determinations of genocide, the most
difficult question is whether the Serb elements carried them out with the
requisite intent. In this case, the intent of the Serb attacks appears, for the
most part, to have been to root out the KLA and to drive the Albanian
population from the areas they inhabited – in other words, ethnic cleansing. Such abuses would more normally fall under the categories of crimes
against humanity or war crimes, rather than genocide, because the intent is
to drive the victims from their homes and not to destroy them.
However, there may be cases where one could argue that this perspective confuses motive with intent. While the intent to destroy a group is a
required element for genocide, the travaux preparatoires of the Genocide
Convention make clear that the motive of the perpetrator is irrelevant to
whether an act constitutes genocide. Accordingly, in those cases where it
can be proven that Serb elements carried out acts intending to destroy the
Albanian population or a part of it, for example those living in a particular
area of Kosovo, the fact that the perpetrator did so in order to drive the
remaining Albanians out of Kosovo is irrelevant to a finding of genocide.
Nevertheless, with regard to most of the Kosovo terror, the pattern and the
scale of the violence would seem to make it difficult to establish that this
was merely the motive of the Serb forces and not their intent.
OBSERVATIONS
The Cambodian case illustrates an important flaw in the definition of
genocide – the excessively limited universe of groups covered by the definition. As noted above, many of the groups targeted for elimination by
the Khmer Rouge, such as professionals, intellectuals, and officials of the
prior regime, are not groups covered by the definition of genocide, meaning that the acts committed against them, while perhaps crimes against
humanity, were not genocide. Working under the paradigm of the Nazi
Holocaust, and operating under the ideological divisions that began to
emerge in the post-War era, the framers of the Genocide Convention intentionally limited the definition to national, ethnic, racial, and religious
groups. This definition therefore, excluded political, economic, and social
groups, as well as other groups that did not enter into consideration at the
time, such as groups based on sexual orientation.
The justification for this outcome articulated at the time the Convention
was negotiated, and one that can even be heard from some quarters today,
is that the groups enumerated in the definition share an essential immutability, while other groups, such as political groups, have less stable char-
2001]
CODIFICATION OF GENICIDE
309
acteristics. Yet, in a world where nationality and religious affiliation can
be shed quite easily, and where political belief and profession can be as
integral a part of an individual’s identity as one’s theistic views and national allegiance, this distinction no longer seems to hold up.
As noted earlier, the core of genocide would seem to be a recognition
that there is something uniquely criminal about abuses intended to destroy
the constituent groups of which humanity is comprised and from which
individuals derive much of their identity. If this is the case, the very integrity of the concept of defining genocide calls for an expanded definition of the crime – one that protects all groups based on fundamental aspects of human identity. The Rwanda Tribunal’s jurisprudence is one step
in that direction, though its influence on other tribunals remains to be
seen. Nevertheless, until the list of protected groups is meaningfully expanded, genocide will remain an imperfectly defined crime.
The case of Kosovo highlights the difficulty of establishing genocidal
intent. Whether horrific acts were committed with the intent to destroy
the victim’s group can be difficult to determine, and the concepts of intent
and motive can become easily conflated. Direct evidence of genocidal
intent, such as official pronouncements of the need to eliminate a group,
will not always be available or may be linked only to some perpetrators.
This will force those attempting to make the determination of intent to
examine the circumstantial evidence, such as the scale of the atrocities or
efforts to destroy the group’s unique characteristics or its leadership. The
difficulty of this exercise explains, in part, why prosecutors have been so
cautious in bringing charges of the genocide. At the same time, this difficulty is an unavoidable aspect of these inquiries, and unlike the excessive
limitation in the enumeration of protected groups, it does not reflect any
flaw in how genocide has been codified.