The ECCC Should Address Starvation to Fulfill its Mandate

Randle C. DeFalco


“Hunger is the most effective disease.”
- Khmer Rouge slogan

Constant hunger was perhaps the most universal form of suffering endured by Cambodians during the period of Democratic Kampuchea (DK) from 1975-1979. The Khmer Rouge (KR) regime forced all Cambodians to eat communally and outlawed eating privately or raising private crops. These actions effectively stripped the population of the ability to feed itself and made Cambodians wholly reliant on communal rations for sustenance. These rations however, were woefully insufficient, typically consisting of two small ladles of watery rice gruel per day. Many people were beaten, imprisoned or even executed because they were caught searching for desperately needed food for themselves or a starving loved one. People starved by the thousands, often as family members helplessly watched them waste away. Suffering was most acute amongst disfavored “new” people, who were scorned as enemies of the revolution by the KR and forced to do hard labor while receiving the least food. Meanwhile, while other Cambodians starved, senior KR leaders enjoyed bountiful meals and exported thousands of tons of rice each year.

The Extraordinary Chambers in the Courts of Cambodia (ECCC) was created to hold “senior leaders” and others “most responsible” accountable for serious crimes committed during DK. The ECCC has two main goals: to provide an accounting of the crimes committed during DK and to develop an accurate history of the DK period. If the ECCC is to achieve either of these goals the Co-Investigating Judges must address the issue of famine and starvation in case 002.

Presently, there is no single “famine” crime under international or Cambodian law. There are however, numerous international crimes that may be committed in association with an instance of mass famine, such as war crimes, genocide and crimes against humanity. At the ECCC, crimes against humanity appear to be the most appropriate mechanism to account for famine and starvation during DK. This is because crimes against humanity are designed to protect civilians from widespread or systematic abuses, even when committed by their own government. The ECCC has jurisdiction over nine discrete crimes against humanity, of which three can be combined to capture the main harms attributable to famine during DK. These are: extermination, “other inhumane acts” and persecution.

Extermination is a crime of mass killing and can be used to account for the massive number of deaths attributable to starvation from 1975-79. The acts of killing that can form the crime of extermination need not be violent and include exposing people to conditions of life that result in mass death.

“Other inhumane acts” are acts that do not fall under a specific crime against humanity, yet are of equal gravity. This crime has been used to account for a wide variety of abuses committed against civilians and could be used to account for the severe physical and mental suffering of virtually all Cambodians during the DK period attributable to chronic undernutrition. This crime is a critical mechanism to acknowledge that all Cambodians were victims of famine, including both survivors and those who ultimately died of starvation.

Persecution is the discriminatory denial of a fundamental right to members of a protected class. The protected classes at the ECCC are racial, religious and political groups. As with “other inhumane acts,” alleged persecutory acts must be of comparable gravity to other crimes against humanity. The key to a successful persecution conviction is establishing that the accused had the specific intent to discriminate against the victim(s) because of their membership in a protected class. Persecution could be used to account for the KR’s discrimination against perceived political enemies, who were given the least food and forced to do the most labor, resulting in especially acute famine.

The three crimes against humanity discussed above, extermination, “other inhumane acts” and persecution, provide the necessary framework to account for three critical aspects of famine during DK: death, suffering, and discrimination against disfavored groups. Extreme hunger was a near-universal Cambodian experience during DK. Victims who starved to death did not die from “natural causes.” Their suffering was wholly avoidable and cannot be blamed on bad harvests or unfavorable weather. Widespread, severe famine was the natural and foreseeable result of the draconian policies formulated, enacted and enforced by a small group of powerful KR leaders. In order for the ECCC to provide a minimally adequate accounting of crimes committed during DK, the Co-Investigating Judges must address this essential issue.