Extraordinary Chambers in the Courts of Cambodia, Regulation of Marriage, and Reparations: Judgment in Case 002/02 Under Review

[Alina Balta is a PhD Researcher at Tilburg Law School, INTERVICT. This blogpost is a product of the Intervict Reparations Initiative, commissioned by the NWO-VIDI Project, A Waste of Time or No Time to Waste, as well as a product of research carried out for the photobook ‘Portraits of Injustice: Forced marriage and related sexual violence during the Khmer Rouge’ due to be published in 2019.]

On 16 November, 2018, the Extraordinary Chambers in the Courts of Cambodia (hereinafter ECCC) handed down a summary of the findings and the disposition of the Judgement for Case 002/02 concerning the Accused Nuon Chea and Khieu Samphan. Whereas its twin case 002/01, concluded in 2016, exercised limited ratione loci and ratione temporis jurisdiction (ECCC Case 002/01 Trial Judgement; ECCC Case 002/01 Appeal Judgment), Case 002/02 focused on crimes which impacted people throughout the country. To be precise, it investigated allegations of crimes such the regulation of marriage and rape within the context of forced marriage, the treatment of ethnic Vietnamese, Muslim Cham, and Buddhist groups, and former Khmer Republic soldiers, forced labor at worksites, and cruel treatment at different security centers (ECCC Decision on Additional Severance of Case 002 and Scope of Case 002/02).

In the summary of the Judgment in Case 002/02, the Court, amongst others, confirmed the allegations on forced marriage and rape within the context of forced marriage, and found the two Accused guilty for the perpetration of these crimes, through participation in a joint criminal enterprise. In addition, the Court endorsed and supported the reparation project put forward by the Lead Co-Lawyers in their Final Claim for Reparations in case 002/02, specifically designed to tackle the consequences and respond to the harm incurred by these two crimes. This reparation project is developed and funded by external actors without the award being directed against the convicted person (ECCC, Closing Order, paras 38-44 ).

The inclusion of the regulation of marriage and rape within this context in the indictment comes as a result of concerted efforts to raise awareness on the perpetration of such crimes, spurred by various testimonies of Civil Parties in their submissions to the Court (Elander, p. 167). In the Closing Order of Case 002, the Co-Investigating Judges found out that, on the basis of all the evidence before the Chamber, it appears ‘more likely than not’ that, as far as the ‘regulation of marriage’ is concerned, rape and other inhumane acts through forced marriage amount to crimes against humanity. Consequently, 664 Civil Parties were declared admissible in trial 002/02, with regard to the policy of the regulation of marriage. However, other sexual and gender based violation crimes, including rape outside of forced marriage have been dismissed by the Co-Investigating Judges (ECCC, Closing Order, paras. 261, 1426-1429, and 1525). Subsequently, during the trial in case 002/02, 16 Civil Parties were called to testify specifically on the regulation of marriage and their accounts focused, inter alia, on factual information, mental and physical harm, as well as other societal consequences of having been forced into a marriage during the Khmer Rouge regime (ECCC, Civil Party Lead Co-Lawyers’ amended Closing Brief in Case 002/02, pp. 389-502). In their Final Claim for Reparations in Case 002/02, the Lead Co-Lawyers put forward several proposals for projects targeting the harm and consequences of various crimes investigated in Case 002/02, of which the project targeting forced marriage focused on guarantees of non-repetition which would benefit a specific group of Civil Parties and victims. The project entitled ‘Phka Sla Kraom Angkar’ was designed in cooperation with Civil Parties and incorporates public performances and community and intergenerational dialogue to generate public discussion and awareness of how marriage was regulated during the Khmer Rouge.

The project comes amid extensive research focusing on forced marriage during the Khmer Rouge, which documented its serious consequences for the victims. They include the rupture of important societal bonds, erosion of peoples’ psycho-emotional, familial, cultural and spirit-based infrastructures, and alteration to the way people engaged with spirits and ancestors, which severed their sense of predictability and safety (LeVine, pp. 175-183; de Langis et al. p. 16, p. 102). In some cases, forced marriage led to social exclusion and discrimination, especially for women who were abandoned, divorced, in a polygamous marriage, or widowed. The stigmatization was sometimes passed down to the children of these women, who would not be included in wedding ceremonies in their communities. The victims would sometimes prefer to keep silent and not share their experience, out of fear of stigmatization for themselves and for their children. (De Langis et al., p. 16; B. Ye, p. 471).

Against this background, the Judgment in Case 002/02 can be considered a landmark decision, for several reasons. First of all, it has positive impact in the international criminal justice arena, where challenges to mount similar allegations in other international criminal justice tribunals have repeatedly failed. This judgment can positon itself as a precedent setter and example of good practice of how the long road to justice for victims of similar crimes can sometimes bear fruits. Secondly, and connected, this judgment highlights the importance of civil party participation and inclusion in international(ized) criminal justice proceedings, which, in the instant case, paved the way for the building of argumentation of the Lead Co-Lawyers. When the Court began operating in 2006, its general understanding was that killings, torture, and forced labor had been widespread in Cambodia, and they should be the Court’s sole focus. However, through the Civil Party participation model of the ECCC, which enabled Civil Parties to come forward, submit claims, testify before the Court, and speak about their victimization, new crimes have come to light, such as, for instance, forced marriage (D. Sankey, p. 11; Vilim, 2010). Furthermore, by finding the Accused guilty of these crimes in the instant Judgment can have paramount satisfactory value for the Civil Parties, as, on the one hand, the crimes and harm endured are acknowledged, and on the other hand, the top leaders are being held accountable for their actions. The aforementioned consequences the victims have been living with their entire lives, as well as the ensuing stigmatization will certainly not be erased, but the official acknowledgment of their occurrence holds the potential of refuting claims to the contrary and thus minimize further victimization. Similarly, seeing the perpetrators punished for these crimes is most certainly important for the victims, who have repeatedly echoed in their submissions that they wish to see the Accused punished for their wrongdoings to the highest degree possible (ECCC Case 002/02 Transcripts). Finally, although the reparation project put forward by the Lead Co-Lawyers was already up and running at the time the Court expressed endorsement and support and has already received positive evaluations from Civil Parties, through this judgment, it becomes an official ‘judicial reparation’. Although the importance and benefit of reparations’ endorsement through this channel could be challenged on various grounds (McCaffrie and Mattes, p. 28), the recognition of reparation projects by the Court bears the symbolic value of it being inscribed in a Judgment and thus, officially recognized before an international(ized) tribunal.

Although it has its shortcomings, the ECCC is striving, as much as it can, to set the record straight with regard to the crimes committed during the Khmer Rouge regime. In addition, although limited by its mandate and resources in regard to the reparations it can actually award, the Court appears supportive of the role the Lead Co-Lawyers and the Victims Support Section play in securing and implementing different reparations measures. Although the actual impact these reparations have on the victims is yet to be measured, the ECCC Judgment in Case 002/02 is certainly an important milestone for international criminal justice and the victims of similar crimes.