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62 Duke L.J. 161 (2012-2013)
Toward a Comparative Approach to the Crime of Genocide

handle is hein.journals/duklr62 and id is 165 raw text is: TOWARD A COMPARATIVE APPROACH TO THE CRIME OF GENOCIDE TATIANA E. SAINATIt ABSTRACT 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. Copyright @ 2012 by Tatiana Sainati. f Duke University School of Law, J.D. and LL.M. expected 2013; University of Virginia, M.A. 2007; Northwestern University, B.A. 2005. I would like to thank Professor Ralf Michaels for the thoughtful critiques, keen insights, and general wisdom, which he so generously shared, and which greatly improved the quality of my piece, as well as my note editors, Leigh Krahenbuhl and Paige Gentry for their unflagging support, willingness to talk for hours about comparative law, and incredibly thoughtful feedback, which challenged me to strengthen my arguments and my writing. I would also like to thank the Duke Law Journal editorial staff for their meticulous review, insightful feedback and thought-provoking questions. In particular, I would like to thank Lauren Ross, Oscar Shine, and Matt McGuire for helping me polish and refine my writing, and Doug Dreier, Ethan Blevins, and Tina Praprotnik for ensuring that my above-the-line assertions are well-considered and well-supported. Thank you too to Ali Schultz, Melissa York, and Spencer Young for their unfailing support through the ups and downs of the writing process. Most especially, thank you to my mother, father, and sister for everything.

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