The annihilation of more than 1.5 million Cambodians at the hands of the Khmer Rouge is widely considered a quintessential case of genocide. Whether these atrocities meet the definition of genocide as a legal matter, however, remains unsettled. As of October 2012, the question of whether genocide occurred in Cambodia within the meaning of the 1948 United Nations Genocide Convention is pending before the Extraordinary Chambers in the Courts of Cambodia (ECCC). The ECCC will determine this question against the backdrop of an ongoing debate about the appropriate scope of the crime of genocide. This debate pits expansionists, who believe the definition of the crime should be broadened to include mass killings of political groups, against restrictivists, who assert that genocide’s definition must remain tightly tethered to the crimes first articulated in the 1948 Genocide Convention. This Note finds both approaches wanting, and argues that the court should eschew dichotomies in favor of a comparative law approach to the crime of genocide. By approaching the crime of genocide in the Cambodian context as a legal transplant, the ECCC can achieve the uniformity critical to international law without sacrificing the cultural specificity necessary to ensuring that international legal principles remain locally meaningful.
Tatiana E. Sainati, Toward a Comparative Approach to the Crime of Genocide, 62Duke Law Journal 161-202 (2012).
Available at: http://scholarship.law.duke.edu/dlj/vol62/iss1/4