03 Nov Symposium on the ECCC: Beyond Forced Marriage – Sexual, Gender-Based and Reproductive Crimes 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. Following Melanie O’Brien’s post on forced marriage, in this post Rosemary Grey considers the ECCC’s experience with other sexual, gender-based and reproductive crimes.
[Dr Rosemary Grey is a lecturer at Sydney Law School and a member of the Sydney Southeast Asia Centre, in the University of Sydney.]
Sexual Crimes Sidelined, Again
In July 2007, the public got its first glimpse into the crimes under investigation by the ECCC. The occasion was the completion of the prosecutors’ ‘preliminary investigation’ (an initial scoping exercise to identify potential crimes and suspects, before the full-scale investigation by the investigating judges).
The official output of this preliminary investigation — a lengthy filing called the ‘introductory submission’ — was (and still is) confidential. But a press release offered a peek into its contents.
‘[T]he Co-Prosecutors believe that serious and extensive violations of international humanitarian law and Cambodian law occurred in this country during the period of Democratic Kampuchea from 17 April 1975 to 6 January 1979’ it announced.
‘[T]he Co-Prosecutors have identified and submitted for investigation twenty-five distinct factual situations of murder, torture, forcible transfer, unlawful detention, forced labor and religious, political and ethnic persecution’.
Absent from that list were sexual and gender-crimes. For those familiar with other international criminal tribunals, this absence produced a sense of déjà vu.
Just one year before, the International Criminal Court’s first prosecutor had been criticised for omitting to include charges for sexual and gender-based crimes in the case against Democratic of Congo rebel commander Thomas Lubanga Dyilo. Likewise, in the 1990s, these crimes were initially sidelined in the Yugoslavia and Rwanda tribunals.
It appeared, based on the publicly available information, that sexual and gender-based crimes were likewise at risk of being overlooked in Cambodia.
Admittedly, some of the better-known histories by (mostly male) Western scholars had said little about sexual and gender-based crimes during the Khmer Rouge period. But one did not have to dig far to find alternative accounts.
In English-language materials alone, including testimony from the 1979 trial of Pol Pot and Ieng Sary, as well as studies by local scholars and film-makers, there was extensive evidence of sexual and gender-based crimes.
Examples included the rape and killing of women and girls by Khmer Rouge authorities in prisons and worksites; civilian women and men being forced into marriages by the authorities; and the violent repression of sexual freedoms (for instance, the torture and killing of couples who had consensual relationships outside of marriage).
There were also examples of ‘reproductive violence’ (violence that violates reproductive autonomy), such as labouring women being forced out of maternity wards during the forced evacuation of Phnom Penh and left to give birth by the side of the road; and women miscarrying pregnancies or ceasing menstruation due to forced labour, starvation and corporal punishment.
The reliability of these reports varied (as was true for other crimes during the Khmer Rouge period). But their volume, and the virtual certainty of sexual violence in situations of armed conflict, made the silence on these crimes in the 2007 press release a cause for concern.
The Stumbling Block
The ECCC’s first international co-prosecutor, Robert Petit, has since clarified that sexual and gender-based were on his team’s radar during preliminary investigation, but pinning these crimes on the CPK leaders had been a stumbling block (for differing accounts, see here and here).
‘In the case of Cambodia,’ Petit stated, ‘the research, done by a credible gender researcher, showed GBV [gender-based violence] was widespread but not part of the policy of the Khmer Rouge leadership, and that whenever perpetrators became known to the hierarchy, they were sanctioned and, more often than not, executed for their crimes.’
This narrative of a regime that harshly punished sexual crimes turned out not to be entirely accurate, according to evidence later led by the victims’ lawyers (paras 31-41).
In any case, even if punishments for sexual violence had been consistent and serious, this would not necessarily preclude charging the CPK leaders for these crimes. The doctrine of command responsibility requires military and political leaders to take ‘all necessary and reasonable measures’within their power to prevent or punish crimes that they knew, or had reason to know, were being committed by their subordinates.
The ’prevent’ aspect is important. Where a leader had reason to know that subordinates were about to commit crimes and failed to prevent them, that leader cannot make up for the failure by imposing punishing afterwards. (Blaškić, para. 336)
The CPK leaders, having created a climate of extreme violence with torture centres throughout the country, and having lived in a world in which sexual violence in armed conflict is a virtual certainty, had every reason to know that these crimes were being committed.
The prevention measures at their disposal were not fully canvased at trial, but experience from other courts suggests that appropriate measures can include training one’s troops in the rules of IHL; establishing an effective process for reporting and investigating the relevant crimes; and explicitly prohibiting their commission.
There is doubt as to whether the CPK took these steps. According to several scholars, the CPK’s ‘moral code’ outlawed all sex outside of marriage rather than prohibiting forced sex per se, and disincentivised victims from reporting rape by Khmer Rouge soldiers because these victims would have been seen as having transgressed the ‘moral code’, making them liable to punishment.
But narratives that emerge early on in a case can be difficult to shake.
And in the ECCC, the narrative that the CPK leaders had outlawed rape, and hence could not be prosecuted for the litany of sexual crimes committed by their soldiers in prisons and worksites, proved particularly hard to dislodge.
After the preliminary investigation, the ECCC’s investigating judges conducted a more extensive investigation, resulting in some charges for sexual and gender-based crimes.
In the main case (Case 002), they included charges for forcing men and women into marriages and forcing them to consummate those marriages, using the crime against humanity of ‘other inhumane acts’. These charges resulted in convictions, as Melanie O’Brien details in her post in this symposium.
The marriage-related charges were included at the urging of the victims’ lawyers (e.g. here, here and here), with support also coming later from the prosecutors (paras 485, 1443-1453). But the victims’ lawyers and prosecutors also asked the investigating judges to investigate and charge other sexual and gender-based crimes, without success.
Among other things, these unsuccessful requests related to rape outside the context of forced marriage, such as the rapes committed by Khmer Rouge soldiers in prisons and worksites (e.g. here).
In the Case 002 indictment, the investigating judges agreed that there was strong evidence of these rapes, but excluded these crimes nonetheless. In their view, ‘the official CPK policy regarding rape was to prevent its occurrence and to punish the perpetrators. Despite the fact that this policy did not manage to prevent rape, it cannot be considered that rape was one of the crimes used by the CPK leaders to implement the common purpose.’ (para 1429).
Here, as in the early stages, the narrative prevailed that the CPK leaders had taken such a strong stance against rape that they could not be prosecuted for its occurrence.
But the indictment at least acknowledged that rapes in prisons and worksites had occurred, even though these crimes were not attributed to the senior CPK leaders (paras 1426-1427, see also Trial Judgment, paras 2761-2764). In this way, the ECCC ensured that rape outside of forced marriage was part of the official record, even if the CPK leaders were neither charged with, nor convicted of, these crimes.
In Case 002, and again in the Case 004 (which never went to trial), the victims’ lawyers also pressed for the investigation of pregnancy-related crimes (e.g. here, paras 24-27). Examples included pressuring women to bear children for the state, and forcing women who were pregnant or who had recently given birth into strenuous physical labour, charged either as ‘forced pregnancy’ or as ‘other inhumane acts’.
In the Case 002 indictment, the investigating judges declined to engage with this request. They recognised that boosting population growth was one of the main rationales for forced marriage in the Khmer Rouge period, hence the authority’s insistence that couples consummated their marriages.
But there were no charges for the resultant forced breeding, i.e. for the conduct of forcing women to conceive and bear children, or forcing men to impregnate their assigned wives. For reasons unarticulated by the investigating judges, this type of forced labour, of reproductive violence, or enslavement (to use Patricia Sellers’ term) was not recognised as a crime.
The evidence in Case 002 also offered a glimpse of other sexual and gender-based violence that was not identified by the parties, nor analysed by the ECCC’s judges.
Examples included forcing phet ti bey (third gender) people to conform to a binary gender identity; putting people in the position where they were forced to engage in survival sex in exchange for food or (relative) safely; and subjecting those suspected of consensual extra-marital sex to corporal and capital punishment.
A Missed Legacy
Had charges been brought for the full range of sexual, gender-based crimes and reproductive violence that was present in the ECCC’s evidence, this tribunal might have made more seismic contributions to contemporary understandings of what kinds of conduct can be prosecuted under international criminal law.
In particular, a detailed consideration of men’s and women’s experiences of forced breeding may have been a feature of the ECCC’s legacy.