Symposium on the ECCC: Forced Marriage in the ECCC

The Extraordinary Chambers in the Courts of Cambodia (ECCC) was created by the Cambodian government in partnership with the United Nations. Its purpose was to prosecute crimes under international and Cambodian law committed between 1975 and 1979, when Cambodia was ruled by the Communist Party of Kampuchea (CPK), better known as the ‘Khmer Rouge’. On 22 September 2022, the ECCC’s appeal chamber delivered its final judgment, upholding former CPK leader Khieu Samphan’s conviction for war crimes, crimes against humanity and genocide. 

Responding to that final judgment, this Opinio Juris symposium reflects on the ECCC’s trials, tribulations, and legacy. In this post, Melanie O’Brien analyses the ECCC’s approach to prosecuting forced marriage, and rape in forced marriage, during the Khmer Rouge period. 

[Melanie O’Brien is Associate Professor of International Law at the University of Western Australia and President of the International Association of Genocide Scholars.]

Forced Marriage under the Khmer Rouge

One of the main policies of the 1975–1979 communist Khmer Rouge regime was to increase the population of Cambodia (then known as Democratic Kampuchea). As part of this policy, the Khmer Rouge carried out forced marriages, within which men and women or girls were forced by Khmer Rouge cadres to marry each other. These marriages were carried out in coercive circumstances, including under threat of death, being relocated or under threat of re-education. Marriages had to be approved by authorities. The couples usually did not know each other, and sometimes did not even know they were getting married until they arrived at the destination, having been told they were attending a meeting. Marriage ceremonies were held in various non-religious locations, from offices to kitchens, worksites, classrooms, or houses, and were not carried out according to Khmer tradition (such as including Buddhist monk blessings or having family members present). Ceremonies were usually mass weddings, with a room full of men and women lined up to be married. During the ceremony, rather than commit to each other, all couples were forced to swear allegiance to Angkar (‘the Organisation’, the name the Khmer Rouge gave itself). After the ceremony, each couple was forced to consummate the marriage, surveilled visually or aurally by Khmer Rouge cadres, under threat of re-education and/or death. 

The context of forced marriage in Cambodia under the Khmer Rouge is different from forced marriage as occurred in other atrocity situations, such as Sierra Leone, Uganda and Mali. In Sierra Leone, Uganda and Mali, girls and young women were forcibly married to men. However, in Cambodia, both the male and female in the couple were the victims of a third party, namely, the Khmer Rouge authorities. There was, however, often an age difference, with girls and young women married to men older than them.

Forced Marriage in ECCC Case 002/02

Forced marriage has a convoluted history in international criminal courts and tribunals, as it does not exist as a standalone crime in any international criminal court or tribunal statute. A full analysis of the history of forced marriage jurisprudence is outside the scope of this blog post, and it has been discussed elsewhere. It is enough to note here that the debate has been over whether forced marriage should be charged as sexual slavery or as the crime against humanity of ‘other inhumane acts’, with courts ultimately deciding on the latter. Legal issues within the assignment of forced marriage to ‘other inhumane acts’ have included defining forced marriage, how forced marriage fits within ‘other inhumane acts’, and nullem crimen sine lege questions.

The ECCC, in Prosecutor v Nuon and Khieu (Case 002/02), prosecuted and convicted forced marriage as the crime against humanity of ‘other inhumane acts’ (TJ, paras. 741, 3686). The ECCC centred its construction of forced marriage on human rights law notions of marriage. The Chambers focused on the ‘right to enter into marriage freely’ as expressed in Article 16 of the Universal Declaration of Human Rights (TJ, para. 743). The Trial Chamber also concluded that marriage must involve consent of the victims or their families, and there was no evidence that the victim’s ability to consent to marriage ‘was voluntarily transferred to the [Communist] Party (Angkar)’ (TJ, para. 3688). Such consent is required for ‘decisions concerning the core of [victims’] privacy and dignity’, and there was no ‘genuine consent’ given (TJ, paras. 3689, 3690). 

However, while the ECCC held that forced marriage as an inhumane act was established (TJ, para. 3692), despite acknowledging that there is no ‘common understanding’ of forced marriage, the Trial Chamber unfortunately did not provide a specific definition of forced marriage. The Chamber referenced victims having experienced ‘conjugal relationships in coercive circumstances’ (TJ, paras. 742, 3686). It also referred to the jurisprudence from the Special Court for Sierra Leone Appeals Chamber and to a definition set out by the ICC in the Ongwen Confirmation of Charges (para. 93), namely, ‘the imposition of “marriage” on the victim … [and] of duties that are associated with marriage … with the consequent social stigma’ (TJ, para. 745), but did not indicate whether one or the other of these definitions was more persuasive. Ultimately, the ECCC perceived the act of forced marriage as the imposition of marriage and its associated duties, and as a violation of the human right to freely marry and establish a family. 

The Trial Chamber focused its evaluation on whether the specific facts related to the conduct of forced marriage under the Khmer Rouge amount to inhumane acts (TJ, para. 746). It considered that the forced marriages inflicted mental and physical suffering ‘upon the individuals through the threats of forcing them to marry, the fact that they had to marry someone they did not know, the fear instilled to pressure them to consummate the marriage and that the conduct was performed intentionally’ (TJ, para. 3692). The Trial Chamber held that, because of the ‘severity of the mental suffering [and serious mental harm with lasting effects] caused by being forced to marry in a coercive environment’, the conduct was of ‘similar gravity as other enumerated crimes against humanity’ (TJ, para. 3692). Thus, Case 002/02 contributes to the growing body of jurisprudence confirming that the crime of forced marriage sits within the crime against humanity of ‘other inhumane acts’.

Rape in the Forced Marriages

As mentioned, couples who were forcibly married were also forced to consummate the marriage. This was carried out under the eye or ear of Khmer Rouge cadres; for example, a cadre would listen, under the (raised) house, to hear if the couple were having sexual intercourse. 

Both men and women were threatened with re-education or even death for non-compliance with the marriage or its consummation (TJ, paras. 3656-3661). However, many female victims of forced marriage experienced a threat not only from the third-party authorities ordering the marriage and its consummation, but also from their ‘husbands’. As punishment for not consummating the marriage, in some cases ‘husbands’ reported their ‘wives’ to superiors, which resulted in physical punishment by cadres or militiamen, including rape (TJ, para. 3646). Many women were also physically assaulted by their ‘husbands’ (TJ, para. 3646); the ECCC Chamber did not find any evidence of the equivalent occurring by women against men. Additionally, with regards to punishment for non-compliance, women were raped (sometimes gang-raped) for refusal to marry or consummate the marriage (TJ, paras. 3650, 3658). Rape as punishment was not meted out to men.

The Trial Chamber addressed the forced sexual intercourse within the forced marriage, finding it to constitute rape, and ‘a serious attack on the human dignity of the victims’ that caused serious mental and physically suffering or injury (TJ, para. 3697). As with forced marriage, the Trial Chamber considered the rape within the forced marriage to be of similar gravity to other enumerated crimes against humanity. Thus, the rape within the forced marriages was considered to be the crime against humanity of an inhumane act (TJ, para. 3700). 

However, the Trial Chamber expressly excluded men as victims of rape within forced marriage, due to the definition of rape adopted by the court, namely, the definition of rape in Cambodia at the time (1975-1979) (TJ, paras. 731, 3701). The Chamber went on to ‘consider whether men were subjected to sexual violence of such gravity that it amounts to other inhumane acts’ (TJ, para. 3701). The Chamber did find that men could also not refuse to consummate the marriage, fearing for their lives, and acknowledged that ‘men were subjected to sexual violence that was contrary to human dignity’ (TJ, para. 3701). However, the Chamber was ‘unable to reach a finding on the seriousness of the mental and physical suffering suffered by these men’, based on an ‘absence of clear evidence concerning the level of seriousness of this kind of conduct and of its impact on males’ (TJ, para. 3701). 

Thus, the finding in the Trial Judgment was that men and women were victims of forced marriage as an inhumane act; but that only girls/women were victims of rape within the forced marriage as an inhumane act. This is clearly problematic in its denial of the victimhood of men as victims of rape, and contrary to the advances made in past decades of the evolution of the definition of rape in international criminal courts and tribunal jurisprudence, including a gender-neutral definition to acknowledge that both men and women can be raped.

Conviction and Appeal

In the Trial Judgment of November 2018, Khieu Samphan was convicted of the crimes against humanity of other inhumane acts forced marriage (against men and women) and rape in the context of forced marriage (against female victims), as part of a joint criminal enterprise. He was sentenced to life imprisonment, which was merged with the life sentence imposed on him in Case 002/01, with sentences served concurrently. 

Appeals were filed by the Defence, Co-Prosecutors, and Civil Parties, and the appeal judgment summary was delivered in September 2022 (NB: only a summary of the judgment is currently available, SAJ). The Defence appealed the convictions for forced marriage and rape in the context of forced marriage, but these arguments were all rejected by the Supreme Court Chamber (SAJ, paras. 54-66). However, of significance here is the Co-Prosecutors’ single ground of appeal, which challenged ‘the Trial Chamber’s ruling that forced sexual intercourse in the context of forced marriage did not constitute the crime against humanity of other inhumane acts in the case of male victims’, ‘arguing that the Trial Chamber failed to make proper findings with respect to the experience of male victims of this crime’ (SAJ, para. 57). The Supreme Court Chamber upheld the Co-Prosecutors’ appeal, finding that the Trial Chamber erred in its identification of the elements of rape, and that the ‘acts of forced sexual intercourse between male and female victims who had been forcibly married… violated the basic rights of physical integrity and human dignity applicable in 1975-1979’ (SAJ, para. 58). The Trial Chamber thus determined that these acts were of comparable gravity to enumerated crimes against humanity, and therefore fell within the scope of the crime against humanity of other inhumane acts (SAJ, para. 58). Ultimately, the appeal was a positive development in the ECCC’s jurisprudence, confirming that there were male and female victims of forced sexual intercourse in the forced marriages carried out by the Khmer Rouge.

On appeal, the Supreme Court Chamber upheld Khieu Samphan’s conviction for forced marriage and rape in forced marriage, as the crime against humanity of inhumane act, and additionally entered a conviction with regards to male victims of rape in forced marriage (SAJ, pp. 33-34). His life sentence was affirmed (SAJ, p. 34).