REFLECTIONS ON MASS ATROCITIES, HISTORICAL MEMORY, AND THE ECCC LEGACY: Cambodia – Past, Present, Future – Part II

THE CRIME OF CRIMES: Law, Memory, And The Limits Of Genocide

No question is ever settled until it is settled right.

– Ella-Wheeler-Wilcox

Part I was about memory as lived experience. Part II is about memory as interpretation.

If Part I explored memory as something lived, inherited, and carried by individuals, Part II asks what happens when those memories enter institutions. Courts, tribunals, museums, textbooks, commissions, archives, and official narratives do not merely preserve memory. They organize it. They classify it. They assign categories and meanings to experiences that often resist easy definition. The transition from personal memory to institutional memory is therefore not merely a change of setting; it is a change in how the past is understood. Once that process begins, memory becomes structured, contested, and filtered through the categories available to the institutions interpreting it.

Nowhere is this process more evident than in Cambodia’s ongoing effort to understand Democratic Kampuchea.

Nearly half a century after the fall of the  Khmer Rouge regime, the period remains simultaneously a lived memory, a historical event, a political reference point, and a legal subject. The closer one examines Democratic Kampuchea, the more difficult it becomes to separate lived experience from institutional interpretation. What survivors remember, what historians reconstruct, what politicians invoke, what museums curate, and what courts can adjudicate often overlap, but they do not always coincide.

This tension is perhaps inevitable. Democratic Kampuchea cannot be understood merely as a sequence of atrocities, however horrific those atrocities were. It was also an attempt to reorder society in its entirety. Law, labor, family life, religion, education, economic activity, and even spatial belonging were reorganized through a revolutionary logic that blurred, if not erased, the distinction between governance and rupture. Political enemies were eliminated. Religious institutions dismantled. Cities emptied. Social hierarchies inverted. Economic life reconstructed from the ground up. The closer one looks, the more difficult it becomes to capture the totality of that experience within any single analytical framework.

It is here that one encounters one of the most contested concepts in modern international law: genocide.

What makes Cambodia so analytically persistent in discussions of genocide is the tension between lived reality and legal structure. The closer one examines Democratic Kampuchea, the more the analytical frame strains under the weight of what it seeks to contain. Not because the law is irrelevant, but because the historical experience is more complex than the categories available to describe it.

The term genocide carries extraordinary moral force. It functions simultaneously as a legal classification, a historical description, a political accusation, and a symbolic condemnation. Few words in contemporary discourse possess comparable power. To describe an event as genocide is not merely to characterize it; it is to situate it within a particular moral and historical universe.

Yet the legal definition of genocide – as codified in the 1948 Genocide Convention (Convention) – remains deliberately narrow and has sparked controversy ever since its adoption.

At its core, genocide requires not only the commission of prohibited acts but also a specific intent: the intent to destroy, in whole or in part, a protected group as such. The Convention limits those protected groups to national, ethnical, racial, and religious groups. That requirement has become one of the principal fault lines between legal doctrine and broader public discourse.

The problem, as I see it, is that genocide today exists in two distinct yet often intersecting worlds. One is the world of law, where definitions matter, elements must be proven, and courts operate within the constraints of treaties, precedent, evidentiary burdens, and the principle of legality. The other is the world of memory, politics, journalism, activism, history, and moral discourse, where genocide has increasingly become a broader symbol of collective human destruction and suffering.

An event may carry the moral weight and historical characteristics commonly associated with genocide without necessarily meeting the legal requirements established by the Convention or subsequent jurisprudence. Conversely, legal hesitation to apply the label does not diminish the gravity of the suffering endured by those who lived through the events in question.

The difficulty is that contemporary discourse increasingly collapses these two registers into one. Legal caution is often interpreted as moral evasion, while moral certainty is frequently treated as if it were already a legal conclusion. This tendency sits at the center of nearly every modern genocide debate.

It seems, at least to me, that much of the confusion surrounding genocide today stems from a deeper question: whether every atrocity, every campaign of persecution, every system of repression, every mass displacement, or every humanitarian catastrophe should automatically be understood and legally classified as genocide within the meaning of the Convention.

The existence of mass suffering and atrocity is not in dispute. Such horrors persist. Yet I remain unconvinced that collapsing an ever-expanding range of human tragedies into the legal category of genocide necessarily clarifies either the law or the moral reality those invoking the term seek to express. That does not mean the Convention is beyond criticism. Nor does it mean the law should remain frozen in time.

After more than seventy-five years of experience, it is legitimate to ask whether the existing framework adequately captures the full range of conduct that modern societies increasingly describe as genocidal. But before that discussion can proceed honestly, it is necessary to return to the origins of the concept itself – to what Raphaël Lemkin envisioned, what states ultimately accepted, and perhaps most importantly, what they deliberately chose to exclude.

There is, however, a deeper layer to this problem that is often left implicit in legal writing.

It is not only that law categorizes differently from memory, politics, morality, or history. It is that law itself sees differently. What law notices and what it overlooks are filtered through admissibility, intent, relevance, burden of proof, and procedural fairness. Law does not simply record reality. It reconstructs reality through institutional rules designed to answer specific questions for specific purposes.

In that sense, genocide is not merely a legal category. It is also a way of seeing. Understanding Cambodia, therefore, requires more than asking what happened. It requires examining how different institutions – courts, historians, governments, museums, survivors, and international organizations – have chosen to understand what happened. And it is there, in the space between lived experience and institutional interpretation, that the modern debate over genocide continues to unfold.

I sometimes think of Galileo here – not as a symbol of rebellion against authority, but as a reminder that what is “seen” depends, in no small measure, upon the instrument through which it is observed.

The telescope did not merely extend vision. It reorganized perception, revealing patterns and relationships that had always existed but had remained unseen under earlier frameworks of observation. In much the same way, legal doctrine does not merely describe atrocity. It determines which aspects of atrocity become legally visible in the first place.

Lawyers, judges, historians, journalists, sociologists, and genocide scholars often examine the same events yet see them quite differently. This divergence is not necessarily the result of bad faith or analytical error. It often stems from the lenses through which they view the events. Law seeks elements, categories, burdens of proof, and legally relevant facts. Historians often seek causation, context, and contingency. Sociologists may focus on structures of power and social transformation. None of these perspectives is inherently superior. Each illuminates certain features while obscuring others. The difficulty arises when one lens is mistaken for the whole picture.

Nowhere is this more apparent than in discussions of genocide. Once a concept acquires that degree of symbolic prestige, it rarely remains confined to its original legal meaning. It migrates, moving beyond courts and treaties into politics, journalism, advocacy, public discourse, and collective memory. Eventually, it becomes something larger than the legal definition from which it originated. At that point, atrocities that may be legally distinct nonetheless appear genocidal.

Perhaps that helps explain why journalists, politicians, advocacy groups, NGOs, and increasingly even academics often reach for the term early – sometimes before the facts are fully known, before a comprehensive legal analysis is complete, and certainly before the specific intent required by international law is established.

I do not say this dismissively. The underlying atrocities are often horrific beyond measure. Images of mass displacement, starvation, systematic violence, civilian deaths, and human suffering naturally prompt observers to use the strongest moral language available. The impulse is understandable and often deeply humane. But moral outrage and legal classification do not always follow the same logic.

Consider extermination.

Systematic campaigns that kill thousands, tens of thousands, or even hundreds of thousands of civilians undoubtedly rank among the gravest crimes imaginable. Yet extermination rarely carries the same symbolic resonance as genocide. It seldom elicits the same public reaction. It rarely occupies the same place in political discourse. Part of the explanation lies in the law itself. Genocide carries unique legal significance under the Convention, including obligations to prevent and punish. States understand this. International organizations understand this. Activists understand this.

But I suspect something else is occurring as well.

In an era dominated by immediacy, visual imagery, social media, and instantaneous global communication, genocide has increasingly become the ultimate vocabulary of outrage. To invoke genocide is to place an event at the apex of moral condemnation. Yet from a legal perspective, not every atrocity that appears, feels, or is experienced as genocidal necessarily meets the legal threshold. That distinction matters enormously.

All international and internationalized criminal tribunals have ultimately grounded their jurisprudence in the definition contained in the Convention. That definition is intentionally narrow. It was drafted as a criminal norm. Its purpose was not to capture every form of collective suffering or mass atrocity. Rather, it was to identify a particular crime.

And so, when I hear the term genocide invoked, my instinct – shaped by years spent in courtrooms – is to begin with the Convention. Others understandably begin elsewhere. Historians, sociologists, anthropologists, journalists, activists, and Genocide Studies scholars often employ broader conceptual frameworks. Their approaches may possess considerable intellectual and moral legitimacy, even when they diverge from the legal definition that courts are obligated to apply.

The distinction between these approaches cannot be collapsed into one another. Calling an ongoing humanitarian catastrophe genocide may be understandable from a moral perspective. Yet, in law, genocide is not established by optics alone, nor by scale alone, nor by systematic atrocity alone. The defining feature remains dolus specialis: the specific intent to destroy, in whole or in part, a protected group as such. That requirement sits at the center of modern genocide law, and it is precisely where legal analysis and moral discourse most often diverge.

States have long understood the implications. During the Rwandan genocide, for example, officials in the Clinton administration famously struggled with the terminology. The cautious phrasing “acts of genocide” reflected an awareness that legal labels carry political consequences. Once genocide is acknowledged, obligations follow. The debate was never solely about legal classification. It was also about the responsibilities that classification might trigger.

Today, however, one increasingly observes the opposite tendency. Rather than avoiding the term, some governments, advocacy organizations, and public commentators invoke the term genocide at remarkably early stages of unfolding crises – sometimes before factual records have matured, before evidence has been fully collected, and before any judicial scrutiny has occurred.

Neither extreme is especially helpful. Reluctance can obscure suffering, and premature certainty can obscure analysis. Both illustrate why precision matters.

It is tempting to view judicial caution as conceptual timidity or even moral avoidance. But there are structural reasons courts have resisted expanding the definition of genocide beyond its established boundaries. Criminal law depends on legality, foreseeability, and stable categories of responsibility. Individuals must know what conduct constitutes a crime. Courts cannot simply enlarge criminal definitions because moral sentiment shifts or historical understandings evolve.

Expanding genocide through interpretation alone would not merely alter moral discourse. It would reshape criminal liability itself. This is why international courts have generally proceeded with caution. Not because they are indifferent to suffering. Not because they fail to appreciate the magnitude of human destruction. But because criminal adjudication depends on maintaining a distinction between moral recognition and legal classification.

That distinction is not bureaucratic formalism. It is a foundation of legal legitimacy. And it is also why I continually return to Lemkin.

Lemkin is rightly remembered as the intellectual father of genocide. Yet one enduring irony of genocide law is that the Convention, influenced by him, ultimately adopted a considerably narrower definition than the one he originally envisioned. For Lemkin, genocide was not simply a criminal offense. It was a broader social and civilizational process.

In his magnum opus Axis Rule in Occupied Europe, Lemkin described genocide as “a coordinated plan of different actions aiming at the destruction of essential foundations of the life of national groups.” The definition was expansive. Political destruction mattered. Cultural destruction mattered. Economic destruction mattered. Religious destruction mattered.

Genocide, in Lemkin’s conception, could unfold gradually, bureaucratically, and structurally. It did not require a single moment of annihilation. It could occur through the systematic destruction of the conditions that made collective life possible. As Lemkin often suggested, nations were, in many respects, “families of mind.” Destroy the institutions, traditions, relationships, language, and social foundations through which a community reproduces itself, and the group may disappear long before every member has been physically eliminated.

From that perspective, genocide begins to look not only like the destruction of people but also like the destruction of the institutions that sustain collective memory. Remove the institutions through which a community remembers who it is, and something essential may be lost long before every member of the group has disappeared. Lemkin was not merely trying to create a criminal offense. He was trying to explain how entire worlds of meaning, identity, and belonging could disappear even when some of the people themselves survived.

It is here that Cambodia presses itself back into the analysis, because Democratic Kampuchea often feels uncomfortably situated between the narrower legal framework ultimately adopted by states and the broader conception that Lemkin originally imagined. The regime unquestionably produced immense physical destruction. But it also sought something more ambitious and more radical: the reordering of society itself. It is also here that the long-running debate concerning political groups re-enters the discussion.

One of the most consequential decisions during the drafting of the Genocide Convention was the exclusion of political groups from the protected categories. That exclusion has continued to generate controversy. Lawyers and judges are trained to work within the categories the law recognizes. Many genocide scholars ask a different question entirely. They ask whether those categories are sufficient:

• • • Can a people be destroyed without being physically exterminated?
    • Can language disappear before the people who speak it?
    • Can culture die while individuals survive?
    • Can a community cease to exist politically, socially, or institutionally before it disappears biologically?
    • Can collective destruction unfold gradually rather than suddenly?

These questions sit somewhat uneasily within the legal framework for genocide. Yet they remain central to how many scholars understand the phenomenon. At their most productive, such inquiries enrich our understanding of collective destruction. At their most ambitious, they challenge the adequacy of existing legal categories.

And here the Galileo metaphor returns – not as a claim that one perspective is correct and another mistaken, but as a reminder that different instruments reveal different aspects of reality. Sometimes the debate is not about what happened. It is about what our chosen lens reveals.

As a criminal defense lawyer, my primary concern has never been where scholars believe the law ought to evolve. My concern is how courts interpret and apply existing law. That leaves me cautious, though not hostile to reform. There may well be compelling reasons to reconsider whether the Convention adequately captures certain forms of collective destruction that modern societies increasingly recognize as genocidal.

One can easily imagine scenarios that expose the Convention’s limitations:

• • • Indigenous communities gradually stripped of ancestral land, culture, language, and identity across generations;
    • Political movements systematically dismantled through imprisonment, exile, repression, and social destruction;
    • Slow-burning campaigns designed not necessarily to annihilate a population immediately, but to erode the foundations of communal existence over time.

Lemkin himself would likely have recognized many such processes as genocidal. But that still does not mean courts are free to reinterpret the Convention beyond its negotiated framework. It is precisely here that tensions begin to emerge among evolving scholarship, prosecutorial ambition, moral discourse, and the more constrained discipline of judicial interpretation.

I understand the attraction of that argument.

Imagine a state governed by an authoritarian regime – or what might politely be described as an illiberal democracy. Opposition parties are systematically dismantled. Political leaders are imprisoned, exiled, or disappear. Supporters are prosecuted under increasingly elastic interpretations of the law. Independent media is weakened. Public space contracts. Elections continue, perhaps, but increasingly as a performance rather than as meaningful political competition. The process unfolds gradually: no death camps, no singular cataclysmic moment, no clear historical rupture announcing itself as the beginning. Only the slow, deliberate erosion of a political community until the group itself ceases to function.

Viewed through a broader Lemkinian lens, it becomes clear why some scholars perceive genocidal characteristics in such a process. Long before the Holocaust reached its horrific culmination, Lemkin was attentive to how regimes dismantled groups incrementally, bureaucratically, and systematically. I tend to think of it as a slow-burning process that risks evolving into annihilation. The destruction may not occur overnight, but it still accumulates.

Whether one agrees with such formulations or not, they raise difficult questions about whether the Convention adequately captures forms of collective destruction that modern societies increasingly experience and sometimes describe as genocidal. This is where scholarship and adjudication often part company. Scholars are often concerned with where the law ought to go; judges are tasked with applying the law as it stands. That tension is neither surprising nor undesirable. Scholarship tests assumptions and occasionally forces the law to confront questions it would rather avoid. The difficulty arises when proposals to change the law are treated as though they already reflect legal reality.

These distinctions may seem formalistic, yet they lie at the heart of genocide law. The Convention does not criminalize every form of collective destruction. It criminalizes a specific form: the intentional destruction of protected groups as such. Once that distinction is abandoned, the category expands almost without limit, encompassing an ever-growing range of historical tragedies that may be morally comparable yet remain legally distinct.

The challenge, therefore, is not whether these other forms of destruction are serious. They plainly are. The challenge is determining whether genocide remains a useful legal category if it is asked to encompass all of them simultaneously. This tension becomes particularly evident when one moves from theory to lived reality.

Consider indigenous communities in Cambodia, including some  Khmer_Loeu communities whose relationship to land is not merely economic but also spiritual, cultural, and cosmological. In such contexts, land is not simply property. It is memory. It is ancestry. It is identity. It is the place where the living remain connected to the dead. Forests, rivers, sacred sites, and burial grounds are often woven into belief systems that make communal life intelligible. To remove such communities from their ancestral land is therefore not merely a geographic relocation. It is to sever relationships that define who they are.

In a contemporary context, one can imagine a large development project – a casino, a resort, a hydropower project, a mining concession, or another state-approved investment initiative. Land is cleared. Communities are relocated. Economic development proceeds. No one involved necessarily intends to destroy the group. Yet over time, language weakens. Traditional practices disappear. Younger generations disperse. Social cohesion fragments. Eventually, the community ceases to exist in any meaningful collective sense.

In such a scenario, nothing necessarily announces itself as genocide. The actors involved may be motivated by development, profit, modernization, or state policy rather than animus toward the group itself. Yet the consequences may nonetheless be devastating. The group survives biologically while disappearing culturally. Genocidal intent may be absent; collective destruction may not be. This cumulative effect – cultural erosion, spatial displacement, and the breakdown of social continuity – raises precisely the kinds of questions Lemkin sought to capture when he spoke of the destruction of “families of mind.”

One need only compare two of the most frequently debated historical examples to see how difficult these questions are.

Consider first the famine that devastated Ukraine during Stalin’s collectivization campaigns in the early 1930s, known as the  Holodomor. Millions perished. The suffering is beyond dispute. Yet the legal debate still centers on intent (e.g., here and here). Was the objective the destruction of Ukrainians as a national group? Or was it the ruthless enforcement of collectivization policies, whose catastrophic consequences the Soviet state accepted, ignored, or exploited? The human tragedy remains the same. The legal characterization remains contested.

The Armenians experience presents a different analytical picture. There, the debate has traditionally focused less on whether mass destruction occurred and more on whether Armenians were targeted because of their identity (see e.g., THE THIRTY-YEAR GENOCIDE: Turkey’s Destruction of its Christian Minorities 1894 – 1924, reviewed here). In other words, the question is not merely how many died, but why they were targeted. The distinction matters.

It is precisely at this point that Democratic Kampuchea presses itself back into the analysis.

The more one broadens the definition of genocide to encompass political, social, economic, and cultural destruction, or slow-burning annihilation, the more Democratic Kampuchea appears – and is increasingly described – as genocidal in virtually every respect. After all:

• • • Political enemies were eliminated;
    • Religious institutions were dismantled;
    • Families were separated;
    • Cities were emptied;
    • Economic life was radically transformed;
    • Traditional social structures were systematically attacked.

What is often less visible in abstract legal analysis is the texture of that transformation – the way ordinary life itself was re-engineered, sometimes through spectacular violence, sometimes through bureaucratic regulation, and often through both at once. The suffering was immense. The destruction was undeniable. Yet difficult questions persist:

• • • Was every disastrous agricultural policy genocidal?
    • Was every forced labor project genocidal?
    • Was every population transfer genocidal?
    • Was every act of revolutionary social engineering genocidal?

Or does there come a point when genocide becomes so conceptually expansive that it begins to lose the specificity that gives it legal force?

It is precisely this pressure that appears in Judge YOU Ottara’s Separate Opinion in Case 002/02 – an opinion that I find intellectually stimulating, even though I remain ultimately unpersuaded by aspects of its effort to broaden the debate over genocide in the Cambodian context and the extent to which the Extraordinary Chambers in the Courts of Cambodia (ECCC) itself could have played a role in expanding the Convention’s application.

That debate is worth taking seriously. It may be one of the most important unresolved questions in contemporary genocide scholarship. But it is also where the distinction between what the law is and what some believe it ought to become is most consequential.

It is precisely because Cambodia sits so uneasily within the Convention’s framework that Judge YOU Ottara’s Separate Opinion warrants careful attention. Unlike much of the ECCC’s genocide jurisprudence, which largely adhered to orthodox interpretations of the Convention, the Separate Opinion reflects a deeper concern that the ECCC’s available legal categories may have been incapable of capturing the full scope of destruction experienced during Democratic Kampuchea.

Although I remain cautious about some of the conclusions Judge You appears willing to entertain, the questions he raises are important. They force us to confront a possibility that has hovered over Cambodia since the beginning: that the law’s narrow categories may not fully explain what occurred, even if they remain the categories courts are obliged to apply.

The Separate Opinion regrets that the ECCC did not fully explore whether segments of the Cambodian population – particularly the Khmer Krom – might have been targeted within a broader understanding of the Cambodian national group. Here I largely agree. If any group’s circumstances potentially fit within the Convention’s protected categories, it may well have been the Khmer Krom. Unlike broader theories of political, social, or cultural genocide, the Khmer Krom clearly fell within one of the four protected groups expressly recognized by the Convention. Their circumstances therefore presented a far more orthodox legal pathway than theories premised on the destruction of political classes, social categories, or cultural elites.

The Khmer Krom’s absence from the ECCC’s genocide jurisprudence remains one of the Court’s more puzzling legacies. Given the extensive investigative resources devoted to other aspects of Democratic Kampuchea, it is difficult to understand why this issue never received sustained attention. To say the Khmer Krom were overlooked may be charitable; abandoned seems more fitting.

Yet Judge You’s concerns did not end there. The Separate Opinion also suggested that the Trial Chamber could have examined whether persons essential to the survival of the Cambodian national group were targeted for destruction through political, social, economic, or cultural mechanisms associated with a broader project of societal purification.

As Judge You observed:

The ECCC could have considered, for example, whether persons who were targeted for destruction were essential to the survival of the Cambodian national group as it existed in 1975. It might have been feasible and appropriate to distinguish between different parts of the Cambodian national group, which may have been targeted for myriad reasons – e.g. political, economic, social, cultural reasons, in the name of societal purification more broadly.

There is understandable frustration underlying this position. If Democratic Kampuchea sought to destroy large segments of Cambodian society through policies targeting perceived political enemies, intellectuals, professionals, religious communities, urban populations, and others deemed incompatible with the revolutionary project, it is tempting to ask whether the Convention’s categories are too narrow to capture the full scope of the destruction that occurred. Judge You’s suggestion that the Chamber could have considered whether certain groups were essential to the survival of the Cambodian national group reflects that concern. It asks whether the destruction of key social, intellectual, cultural, political, or economic components of a society may, under certain circumstances, threaten the existence of the group no less profoundly than the destruction of groups formally protected under the Convention.

There is considerable intellectual force to that argument. It resonates with longstanding concerns in genocide scholarship and echoes key aspects of Lemkin’s original conception of genocide. Yet the legal difficulty remains. Accepting such a conception would not merely interpret the Convention expansively; it would move the law toward a different conception of genocide altogether. Whether such an evolution would be desirable is a legitimate question. Whether courts are free to undertake that evolution through interpretation alone is a very different question.

At this point, the concept often described as “auto-genocide” enters the discussion. The term frequently appears in commentary on Cambodia with an air of intuitive plausibility: a regime destroyed its own people on a massive scale; therefore, genocide must have occurred.

The legal question, however, is more complicated. The Convention was not drafted to criminalize every form of mass killing, however catastrophic, nor was it designed to encompass the destruction of political, social, economic, or cultural groups as such. What matters is not whether victims belonged to the same national community as the perpetrators, but whether they were targeted because they belonged to one of the Convention’s enumerated protected groups.

For that reason, “auto-genocide” has never found a meaningful place in international criminal jurisprudence. It remains largely a descriptive term used by journalists, historians, and some scholars to capture the peculiar horror of a revolutionary movement that inflicted immense destruction on the society from which it emerged. The term possesses undeniable rhetorical force. Its legal utility is far less certain.

And it is here that Judge You’s Separate Opinion becomes particularly interesting. Despite its engagement with broader theories of genocide, the Separate Opinion also highlights something more practical and perhaps more troubling: the possibility that opportunities already available within the existing Convention framework may not have been fully explored.

Judge You’s criticism is directed primarily at what he characterizes as the Co-Investigating Judges’ restrictive approach to genocide. In particular, he notes that requests by the Lead Co-Lawyers for the Civil Parties to explore broader genocide allegations through external experts – specifically regarding Khmer national groups – were not pursued. Likewise, requests to investigate whether genocide had been committed against the Khmer Krom received little meaningful attention.

Those observations raise difficult questions, though perhaps not entirely the ones Judge You intended.

• • • What prevented the Co-Prosecutors from including such allegations in their Introductory Submission?
    • What prevented them from requesting investigative measures directed toward potential genocide charges involving different segments of the Cambodian national group?

These questions matter because they point not only to legal constraints but also to prosecutorial choices, investigative priorities, institutional resources, evidentiary assessments, and the practical realities of every large-scale accountability project.

None of this means that broader theories of genocide lack intellectual merit. It simply means that Cambodia presented the ECCC with two distinct questions. One concerns whether the Convention itself should be interpreted more broadly. The other concerns whether certain groups already protected by the Convention – most notably the Khmer Krom – warrant greater investigative attention. The first raises questions about legal evolution. The second raises questions about institutional decision-making.

The distinction matters because before asking whether the Convention should be expanded, one must first ask whether the Convention, as written, was fully utilized. In Cambodia, that remains a surprisingly difficult question to answer.

The Trial Chamber had considerable authority to shape the evidentiary record. As a tribunal grounded largely in the civil law tradition, the ECCC placed judges in a far more active role than is typical in many common law systems. The Chamber controlled witness questioning, the scope of inquiry, the selection of evidence from the case file, and, to a considerable degree, the factual narrative that emerged at trial. Nothing prevented the Chamber from calling witnesses or exploring documentary evidence that might have shed greater light on whether the Khmer Krom were targeted with genocidal intent or on Judge You’s broader proposition that certain groups were perceived as essential to the survival of the Cambodian national group as it existed in 1975.

Even if such inquiries ultimately fell outside the formal scope of the charges, they might have produced a more complete factual foundation for the arguments later advanced in the Separate Opinion. Had that occurred, we might today have a clearer understanding of precisely what Judge You envisioned when suggesting that genocide may have been committed against broader Cambodian national groups.

More fundamentally, Judge You’s analysis relies heavily on sources that fall outside the mainstream trajectory of genocide jurisprudence. His Separate Opinion draws significant support from the 1985

Whitaker Report and from aspects of the dissenting opinions in Vasiliauskas v. Lithuania. The arguments are not without force. They reflect a longstanding scholarly discomfort with the Convention’s narrowness and a desire to align genocide law more closely with broader theories of collective destruction. The difficulty is that the jurisprudence has largely moved in the opposite direction.

In Vasiliauskas, the majority emphasized what international courts have repeatedly stressed for decades: the definition adopted in 1948 was neither accidental nor incomplete. It was the product of deliberate political choice. As the majority observed, drawing on the reasoning of the International Court of Justice, the drafters carefully identified which groups would be included and which would be excluded. Political groups were considered and ultimately excluded from the Convention’s protection.

That choice has proven remarkably durable. The definition was retained in the statutes of the ICTY and ICTR, and ultimately in the Rome Statute. Political groups were not added, nor were broader notions of social, economic, or cultural destruction incorporated into the legal definition. Successive tribunals have repeatedly reaffirmed this framework.

Equally significant, the majority in Case 002/02 rejected the suggestion that a broader customary international law definition of genocide had somehow developed alongside the Convention. That argument has periodically surfaced in academic literature. One scholar who regards the Convention as too restrictive to capture the full spectrum of collective destruction in the modern world, especially in the Cambodian context, has argued that customary law norms effectively trump contrary treaty provisions;  the Convention’s deliberate exclusion of political groups is without legal force because it is inconsistent with the peremptory norm (jus cogens) prohibition of genocide. Despite decades of debate, such creative arguments have found little acceptance in international adjudication. To Judge You’s credit, he stopped short of embracing this position, despite its attractive reasoning.

What makes his Separate Opinion interesting is not that it offers an alternative legal framework that courts have accepted. Rather, it exposes an unease that has never entirely disappeared. The unease is not unique to Cambodia. It surfaces whenever legal categories appear unable to fully capture historical experience.

This tension is evident throughout genocide scholarship. The legal definition appears too narrow, while the historical experience appears too broad. The law asks one set of questions; memory asks another. The law seeks protected groups, specific intent, and legally recognizable categories. Memory seeks to understand why entire worlds disappeared.

Judge You’s Separate Opinion sits squarely within that space. Whatever one thinks of its conclusions, it reminds us that debates over genocide are ultimately about how societies choose to understand destruction.

What remains contested is how that destruction should be understood:

• • • Was Democratic Kampuchea primarily a project of revolutionary social engineering?
    • A system of political purification?
    • A campaign of class destruction?
    • A constellation of crimes against humanity?
    • A collection of genocides directed against particular protected groups?
    • Some combination of all of these?

The answer depends in part on the lens one chooses to use. Viewed through Lemkin’s original conception, Democratic Kampuchea appears extraordinarily expansive. Much of what Lemkin feared seems present: the destruction of religion, culture, social structures, traditional elites, family relationships, economic life, and the institutions through which collective identity was reproduced. Viewed through the Genocide Convention as it presently exists, the picture becomes more constrained. Certain forms of destruction fit comfortably within the Convention. Others do not.

Neither perspective is entirely satisfying. One risks being too broad, and the other too narrow. Perhaps that is why Cambodia continues to generate debate nearly half a century later. The question is not whether broader conceptions of genocide can be imagined. They can. Nor is it whether Lemkin envisioned something more expansive than the Convention ultimately adopted. He clearly did. The question is whether courts are interpreting the law states agreed to in 1948 or gradually constructing the law some now wish states had adopted instead.

I am not unsympathetic to the criticism. Indeed, after years immersed in the Cambodian experience, I understand why many scholars remain dissatisfied with the Convention’s limitations. Cambodia does not fit neatly into boxes. Few historical experiences do. Even so, I remain cautious about expanding the scope of genocide through interpretation alone. The principle of legality matters. Predictability matters. The distinction between adjudication and lawmaking matters.

Once courts move too far beyond the text adopted, the line between interpretation and revision becomes increasingly difficult to maintain. There is another danger as well. Moving too far from the Convention’s text toward broader sociological understandings of destruction risks making genocide encompass everything and therefore explain very little.

If every form of collective destruction, political repression, social engineering, cultural transformation, economic coercion, forced displacement, or revolutionary restructuring is subsumed under the concept, Democratic Kampuchea appears genocidal in virtually its entirety.

I understand why some scholars are drawn toward that broader conception. In many respects, Cambodia invites exactly that reaction. But if genocide comes to describe every form of collective destruction, political repression, cultural erosion, social transformation, or catastrophic suffering, it risks becoming less a legal category than a general vocabulary of tragedy. And once that happens, distinctions that remain important – legally, historically, and analytically – become increasingly difficult to see.

Genocide, crimes against humanity, persecution, extermination, deportation, forced transfer, political repression, and revolutionary social engineering are not identical concepts. They overlap. They reinforce one another. They frequently occur together. But they are not interchangeable. If everything becomes genocide, then genocide ultimately loses the specificity that gives it legal meaning.

The ECCC itself reflected this tension. The Tribunal recognized genocide in relation to specific protected groups and specific factual circumstances. It did not conclude that the entirety of Democratic Kampuchea constituted a genocidal enterprise. Reasonable people may disagree with that conclusion. Historians may continue debating it. Scholars will undoubtedly continue to challenge it. Future generations may reassess it altogether. But there remains an important distinction between criticizing the adequacy of the law and presenting as settled historical truth conclusions that the ECCC never reached.

The ECCC’s judgments may be incomplete. They may be imperfect. They undoubtedly leave important questions unanswered. Yet they remain the most authoritative judicial findings produced after years of investigation, litigation, adversarial testing, and evidentiary scrutiny. They are not the end of the conversation, but they remain the place from which any serious conversation must begin.

And perhaps that observation points to a deeper set of questions that extends beyond Cambodia and beyond genocide itself:

• • • If courts are not the sole arbiters of historical meaning, what weight should be given to scholars who seek to expand concepts tribunals have interpreted more narrowly?
    • When legal conclusions, historical narratives, moral intuitions, political objectives, and collective memory begin to diverge, who possesses interpretive authority?

Is it the courts? Historians? Scholars? Activists? Governments? Victims themselves? Or does authority emerge somewhere in the uneasy interaction among all of them?

The longer I have reflected on Cambodia, the less certain I have become that there is a single answer. What I have become convinced of, however, is that legal labels do far more than classify events. They shape memory. Over time, they become part of memory. They influence education, frame public discourse, affect politics, and eventually help determine how societies understand both their past and themselves.

The debate over genocide is therefore never merely a debate about legal definition. It is also a debate about memory, narrative, and authority. And, ultimately, about who gets to tell the story of the past and whose version of that story endures.

That realization brings me back to the institution at the center of this series. In Cambodia, none of these questions remained abstract. They were embedded in the ECCC’s daily work. In the courtroom, debates about genocide ceased to be academic exercises. They became questions of evidence, procedure, witness testimony, prosecutorial strategy, judicial discretion, and legal judgment. The abstract tensions explored throughout this chapter – between law and history, memory and classification, moral intuition and legal proof – had to be confronted in concrete form.

The ECCC, therefore, faced a challenge far larger than determining individual criminal responsibility. In many respects, it was also asked to mediate between memory and law. It had to navigate the uneasy boundary between law’s demand for precision and history’s resistance to simplification. It had to decide not only what happened but also how it could be legally understood. In doing so, it became more than a criminal tribunal. It became a site where competing understandings of Cambodia’s past were tested, contested, and, at least partially, institutionalized.

Whether the ECCC succeeded in that task, where it fell short, and what its experience reveals about the possibilities and limits of international criminal justice are the subjects of the next post. For it is one thing to debate genocide, memory, and legal classification in the abstract. It is another to watch a tribunal wrestle with those questions in practice.

That is the story of the ECCC, which I will turn to next in Part III.

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