Symposium on Reproductive Violence in International Law: Glimpses of Reproductive Violence in the ECCC – Forced Breeding, Destruction of Maternal Healthcare, and ‘Ritualcide’

Symposium on Reproductive Violence in International Law: Glimpses of Reproductive Violence in the ECCC – Forced Breeding, Destruction of Maternal Healthcare, and ‘Ritualcide’

[Boravin Tann is a researcher and lecturer at the Center for the Study of Humanitarian Law based at the Royal University of Law and Economics (RULE), Cambodia. Rosemary Grey is a Senior Lecturer at Sydney Law School, The University of Sydney.]

This post forms part of the Opinio Juris Symposium on Reproductive Violence in International Law, in which diverse authors reflect on how the International Criminal Court and other jurisdictions have responded to violations of reproductive health and reproductive autonomy. The symposium complements a one-day conference to be held on 11 June 2024,  in which legal practitioners, scholars, activists, and survivors will meet in The Hague and online to share knowledge and strategies for addressing reproductive violence in international criminal law. Interested readers can register to attend the conference online without cost.

The Extraordinary Chambers in the Courts of Cambodia (ECCC) is one of several ‘hybrid’ tribunals created post-1998 to fill gaps in the ICC’s jurisdiction. It was established in 2003 through an agreement between the Cambodian government and the UN, and completed its trials in 2022.

Through those trials, the ECCC offered a partial and belated reckoning with various war crimes, crimes against humanity and acts of genocide committed by state authorities during the ‘Democratic Kampuchea’ period (1975 to 1979), when the country ruled by the Communist Party of Kampuchea (CPK) – better known to Cambodians by the French term ‘Khmer Rouge’ or the Khmer term ‘Angkar’. 

Reproductive Health and Reproductive Autonomy in the Khmer Rouge Period 

Oral histories and empirical research in Cambodia (e.g. De Langis et al, Levine, Mam, Nakagwa, Natale), together with evidence presented in Pol Pot & Ieng Sary’s 1979 genocide trial in absentia, offer a window into pregnancy and birth in the Democratic Kampuchea period. 

These and other sources indicate that, as part of its attempt to re-engineer Cambodian society into one in which people’s primary loyalty was to the state, and to rapidly expand the country’s labour force and defence capacity, state authorities took on the role of organising marriages. 

Mass wedding ceremonies were common in many parts of the country. The extent to which individuals could choose their spouse varied, but in many cases, the consent of the woman (and sometimes, of the man also) was obtained through coercion, threats, or even physical force. Participants in mass weddings often had to promise to bear children for Angkar, suggesting that these unions were the primary means by which the Party sought to meet its ambitious population targets. 

In a context where disobeying orders typically led to corporal punishment, imprisonment, or death, this promise cannot be seen as a voluntary one. Rather, this instruction to procreate, and the interest that authorities continued to take in married couples’ sexual relations, can be seen as a means of forcing an effectively enslaved population to procreate. 

As well as causing physical and psychological harms, forced breeding is a major violation of the individual’s human dignity. It deprives women of their dignity by disregarding their choice and violating their bodily integrity, autonomy and control. It is also considered as a degrading treatment when they are treated less than humans—an object for reproduction.

Moreover, the living conditions imposed by the CPK – conditions in which daily survival was challenged by near-starvation, forced labour, and dire sanitation, and a prohibition on modern medicine – had readily foreseeable consequences for reproductive health and autonomy. 

The impact was particularly harsh for women and girls, who received little if any reprieve from forced labour during pregnancy and post-delivery, and experienced high rates of miscarriage, stillbirth, amenorrhea, and post-pregnancy complications (survivor impressions suggest these outcomes were higher in Democratic Kampuchea times, but a lack of reliable data makes comparison impossible).

Because religious expression was viewed suspiciously by the regime, participating in religious and cultural birthing rituals – rituals that could offer women a sense of cultural safety during the pain and vulnerability of labour – also became impossible or risky. This violation of cultural rights is part of what Levine has called the ‘ritualcide’ aspect of the Khmer Rouge period.

The ECCC’s Recognition of Reproductive Violence

The above violations of reproductive healthcare and reproductive autonomy – otherwise known as ‘reproductive violence’ – were never a major focus of the ECCC’s investigations and trials. However, some glimpses of reproductive violence can be found in the court’s transcripts and judgments, if we look closely.

For example, in the ECCC’s largest case (Case 002/02), senior CPK leaders Nuon Chea and Khieu Samphan were convicted (among other crimes) for imposing forced marriages upon men and women, and for forcing or coercing married couples to have sexual intercourse. Both practices (imposing forced marriage and forcing couples to consummate those marriages) were charged using the crime against humanity of ‘other inhumane acts’.

The Case 002/02 trial and appeal judgments recognise that a primary objective of forcing couples to marry and have sexual relations was to facilitate the increase of population (e.g. trial judgment paras 3549 to 3558; appeal judgment paras 1249-1264). That finding was based on numerous sources of evidence, including CPK speeches and documents, evidence from former Khmer Rouge cadre, and statements by ‘civil parties’ (victims with legal standing in the proceedings).

ECCC judgments also mention other forms of reproductive violence in passing. For instance, the aforementioned Case 002/02 trial judgment cites evidence that CPK Minister of Social Affairs, Ieng Thirith, saw pregnant women working in fields (para. 1307) and the testimony of witness who received no medical assistance while pregnant in a Khmer Rouge prison (para. 2918). The Case 002/01 trial judgment recognises that during the forced evacuation of Phnom Penh, pregnant women gave birth along the road without medical assistance, and some miscarried (para. 492). 

These references to reproductive violence are important to creating an accurate record of life in the Democratic Kampuchea. But their visibility is limited by the absence of any specific charges for the associated criminal conduct. 

For example, the conduct of forcibly impregnating women and putting them in a position where they must either carry the pregnancy to term or resort of unsafe abortions, and the conduct of forcing men to impregnate third parties, was not charged using available crimes against humanity, such as enslavement or other inhumane acts. 

Nor was the denial of reproductive healthcare, or the prohibition on reproductive rituals, clearly described and prosecuted using available charges, such as the war crime of inhumane treatment or the crime against humanity of other inhumane acts.

Civil party lawyers and external experts recommended adding to capture these various forms of reproductive violence, as Grey’s forthcoming book explains (2026, forthcoming). But the two (male) co-investigating judges did not do so in the Case 002 indictment, nor provide any reasons for this omission, leaving the prosecution little room to make reproductive violence part of their case at trial. 

As to why this conduct went uncharged, we can only speculate, based on our discussions with the co-investigating judges and our knowledge of the tribunal. The lack of an explicit reference to reproductive violence in the ECCC Statute and the absence of jurisprudence from other tribunals on forced breeding as a crime under international law likely played a part. In this legal context, there was little to prompt judges who were dealing with a massive and complex investigation, and who were not predisposed to thinking about this type of criminality, to make this a focus of their work. 

In addition, this omission may be partly explained by social taboos in Cambodia that make it shameful to discuss marital rape, including forced pregnancy within marriages organised by the CPK.

The result is that, although reproductive violence is not entirely invisible in ECCC judgments, it remains on the margins, and its imposition is not regarded as a crime for which the CPK leadership is accountable. 

The ECCC’s Legacy on Reproductive Violence

Had forced procreation and the imposition of conditions that erode reproductive health and autonomy been a focus of the ECCC’s proceedings, this court could conceivably have produced valuable jurisprudence on reproductive violence as war crimes, crime against humanity, and acts of genocide. 

That jurisprudence could have been useful in other contexts such as the ICC, UN Fact Finding Missions, and domestic courts where war crimes, crimes against humanity and genocide are tried. But in the absence of such charges, the ECCC has contributed little to the nascent jurisprudence on reproductive violence under international criminal law. 

Nor does the evidence of reproductive violence put on record in the ECCC appear to have made much impact on public perceptions of the Khmer Rouge period inside Cambodia.

The ECCC reparations project that focused on gender-based violence, a dance performance that toured the country in 2017 and 2018, memorialised experiences of rape and forced marriage in the Democratic Kampuchea. However, it did not feature scenes about pregnancy and birth. 

A recent study of Khmer language radio, television and news coverage of the ECCC in the week surrounding its final judgment revealed that only four of eighteen broadcasts mentioned sexual violence, rape, or forced marriage, and none mentioned forced pregnancy, the destruction of reproductive healthcare, or forced breeding.

Rather, the limited education within Cambodia about reproductive violations during the Democratic Kampuchea period seems to have come from other sources, rather than the ECCC.

A widely-watched documentary produced by former Prime Minister Hun Sen, who was succeeded by his son last year, explains that pregnant and post-partum women died on the road after the Khmer Rouge took control of Phnom Penh in 1975 and forcibly emptied the city’s population into rural worksites. 

It also covers the ordeals of Hun Sen’s wife, the former First Lady, who suffered greatly as a pregnant woman and new mother during the Democratic Kampuchea period, including the loss of her newborn son due to the regime’s dismantling of the healthcare system and its decision to replace trained medical personnel with uneducated and ill-equipped nurses. 

The history textbook on the Democratic Kampuchea period, which was first introduced into Cambodian schools in 2007 as one of the ripple-effects of the ECCC, also provides some details of reproductive violence. The chapter on the forced evacuation of Phnom Penh notes that ‘many pregnant women died while giving birth with no medicine or medical services’ (p. 15)). 

And the chapter on forced marriage states: 

Democratic Kampuchean weddings were completely different from traditional ones. Couples were married in mass ceremonies in which there were as few as 3 to 10 couples and as many as 30 to 50, or even more than 100, at each ceremony. Most men and women were not allowed to choose their partner; instead, each couple was designated by Angkar, which claimed to be everyone’s parents […] The main purpose of weddings, for the Khmer Rouge, was not to form family units, but to produce children who could serve the revolution.’ (emphasis added)  

pp. 32, 35

It also cites the testimony of a male forced marriage survivor, who stated:

In 1978, just a month before the regime collapsed, they pointed to my name on a list and forced me to get married. The next day, I sat on a chair at the ceremony, determined to do what they said. Along with 160 couples, my wife and I promised to live together and have a child within a year.

p. 34

These lines ensure that reproductive violence in the Democratic Kampuchea period is partly covered in Cambodian education. 

However, it is striking that no details of reproductive violence were added in the revised 2020 edition of this textbook, by which time, the Case 002/02 trial judgment was available. For example, no testimony of forced pregnancy from female survivors was added, nor information on the harsh conditions of pregnancy, miscarriage and labour in Khmer Rouge times. Such evidence remains buried in the court records, which while publicly available, are unlikely to be read by a wide audience. 

Conclusion

It is now too late to correct the missed opportunities to recognise and prosecute reproductive violence in the ECCC. However, an awareness of these gaps might incentivise a different approach in future justice processes. 

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