Will the Extraordinary Chambers in the Courts of Cambodia Successfully Prosecute Sexual Violence?

By Emma Palmer and Sarah Williams

The international criminal tribunals for the former Yugoslavia and Rwanda (ICTY, ICTR) delivered the first international criminal prosecutions of sexual violence crimes since the Nuremberg or Tokyo trials. The tribunals’ landmark decisions defined rape, clarified the ways that sexual violence can be prosecuted, and applied broad notions of criminal responsibility to secure historic convictions.

Yet, unlike the ICTY and ICTR, the Extraordinary Chambers in the Courts of Cambodia (ECCC), to which Australia has given grants of more than $23 million up to 2015, has made little contribution to the international law addressing sexual violence.

Widespread sexual violence was a feature of the Democratic Kampuchea regime, during which the Khmer Rouge controlled Cambodia between 1975 and 1979. These crimes occurred in prisons and security centres, cooperatives and worksites, and in villages across Cambodia.

“Despite high rates of sexual violence during Democratic Kampuchea,
the ECCC has so far secured only one conviction for sexual violence.”

Sexual violence remains a serious issue in Cambodia today. Australia has committed to funding up to $24 million for a 2012-2017 project aimed at ending violence against women in Cambodia.

Research has found that Cambodia not only has high rates of sexual violence (more than 20 per cent of men in a 2013 study reported having perpetrated sexual violence), but that rape is frequently motivated by anger and a desire to punish. One commentator suggested that, this “provides strong evidence that rape in Cambodia today replicates rapes committed under the Khmer Rouge regime [by states actors] in disturbing ways.”

Yet, despite high rates of sexual violence during Democratic Kampuchea, the ECCC has so far secured only one conviction for sexual violence. There are several reasons for this.

First, researchers were initially slow to document sexual violence during Democratic Kampuchea regime. Indeed, studies of the regime rarely mention sexual violence. There was also an assumption that the Khmer Rouge strictly enforced a “moral code” that prohibited sex outside marriage, and that this prevented rapes from occurring.

Second, the ECCC only has jurisdiction to prosecute crimes committed during the Democratic Kampuchea regime. This means it must apply the law as it was then – before the ICTY and ICTR’s landmark gender decisions, which were for the most part delivered between the late 1990s and the early 2000s. This has prevented the ECCC from prosecuting the crime of rape as a crime against humanity, as the Court found it was not a separate crime against humanity in the late 1970s.

It can also be difficult to prove that senior leaders, who are the focus of trials at the ECCC, should be convicted for sexual violence offences without evidence that they committed, were present or ordered the crimes.

Finally, the ECCC is confronted with various practical difficulties. The accused are elderly, the scale and gravity of the crimes is considerable, the trials are complex, and the ECCC faces ongoing struggles to secure sufficient funding. Further, many victims died during the regime or were reluctant to speak about their experiences of sexual violence for various reasons, including social stigma. The proportion of female staff at the ECCC is also well below UN averages and there was a lack of gender-trained investigators, which probably contributed to the lower priority afforded to sexual violence in investigations.

However, there are still opportunities for the ECCC to prosecute offenders successfully. One way is to prosecute sexual violence under the “heading” of other crimes. The ICTY, ICTR, and other international tribunals have shown that sexual violence can be prosecuted as a form of genocide, persecution, torture, and as war crimes.

There is evidence that Cham and Vietnamese women and girls were subjected to rape before their execution. However, the genocide charges in the latest ECCC case do not include the rape of these women and focuses only on the act of killing. In other upcoming cases there are no genocide charges at all. There is therefore limited scope for prosecuting sexual violence as genocide, though a charge of persecution might capture sexual violence that was carried out to target political groups.

In the ECCC’s first case, the commander of the notorious S-21 prison, Kaing Guek Eav, was convicted of torture, which included rape during an interrogation. The ECCC’s future cases should continue to consider evidence of sexual violence perpetrated as a form of torture.

Promisingly, the ECCC is considering whether senior Democratic Kampuchea leaders committed the crimes against humanity of “other inhumane acts” – including forced marriages by the regime, and sexual violence within those marriages.

In the case of forced marriage, authorities spied on some couples to ensure they consummated the marriage. When these marriages were enforced by the regime, the “state” was in a sense the perpetrator. Research conducted in 2014 suggests that almost 25 per cent of forced marriages involved spousal abuse during the regime. It would be an important development if the ECCC accepts that forced marriage is not the same as sexual slavery or rape, by recognising that forced marriage can be an “other inhumane act” in and of itself. This would acknowledge the harm caused by forced marriages and recognise that it is not necessarily the same as sexual violence. Convictions for “other inhumane acts” of sexual violence would also signal that rape within marriage is not acceptable, which is important in Cambodia where intimate partner rape is prevalent.

All of these offences under which it may be possible to prosecute sexual violence, require evidence that the accused leaders are criminally liable for the acts. It would be easier to prove that the senior leaders were responsible for sexual violence if the ECCC recognised that these crimes formed one of the many ways that the regime administered control and terror over the population. It should also admit more evidence about how unevenly the regime’s so-called “moral code”, which was supposed to prevent extra-marital sex (although not rape as such), was enforced.

This would allow the ECCC to make a lasting contribution to the international criminal law concerning sexual violence. If it fails to do so, the Court not only risks excluding sexual violence survivors from being recognised in its restorative justice program, but would undermines its own investigative finding that sexual violence was widespread during Democratic Kampuchea.

Emma and Sarah are researchers in the Faculty of Law, UNSW Australia. Emma is a solicitor and PhD candidate researching international criminal laws in Southeast Asia. Sarah is an Associate Professor, whose research focuses on hybrid international criminal tribunals and particularly the Extraordinary Chambers in the Courts of Cambodia.

Emma can be contacted at emma.palmer@unsw.edu.au.

This research was supported under Australian Research Council’s Discovery Projects funding scheme (project DP140102274). The views expressed herein are those of the authors and are not necessarily those of the Australian Research Council.

Feature image: Davidhartstone/Flickr