Court probes sexual violence under Khmer Rouge | Asia| An in-depth look at news from across the continent | DW | 14.05.2014
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Court probes sexual violence under Khmer Rouge

Sexual violence committed during conflict has gained a much higher global profile in recent years. But in Cambodia, which suffered under the Khmer Rouge rule, not much is known or has been done. That could change now.

In April this year, the international co-prosecutor at Cambodia's UN-backed war crimes court, Nicholas Koumjian, asked his colleagues in the office of investigations to examine allegations of serious sexual violence committed during the Khmer Rouge's 1975-79 rule.

In recent months, Koumjian said, enough evidence of widespread sexual violence had emerged to warrant the request. That evidence arose, he added, strictly in relation to the court's fourth and final investigation, which is known as Case 004. That case involves three district-level Khmer Rouge officials. It has yet to come to trial.

Among the crimes under investigation in Case 004 is that of forced marriage, an odious Khmer Rouge policy that is thought to have seen hundreds of thousands of couples compelled to marry and, in many cases, to consummate their marriages under threat of execution. Forced marriage was an integral part of a national policy to increase the population, and thus the workforce, from 8 million to 20 million.

"The allegations also include rapes and sexual violence outside the context of forced marriages, including instances where women were raped prior to being executed," Koumjian said of the proposed investigation in Case 004, “and instances where women who reported rapes during the Khmer Rouge period were subsequently executed."

Theresa de Langis (Photo: DC-Cam)

De Langis: 'The stories of sexual violence will make a significant contribution to our understanding of this atrocity'

It is this proposed investigation into allegations of sexual violence outside forced marriage that constitutes somewhat new ground for the war crimes court, which is known formally as the Extraordinary Chambers in the Courts of Cambodia (ECCC).

To date, the ECCC has (within the realm of crimes of sexual violence at any rate) prosecuted only the narrower charge of forced marriage. The crime is part of the broader indictment in Case 002, the ongoing trial of the surviving leaders of the Khmer Rouge. Consequently, the two defendants in Case 002 are charged with rape, but only within the context of forced marriage.

Away from the auspices of the ECCC, a number of researchers have studied sexual violence during the Khmer Rouge period. But while their work indicates such crimes were far more widespread than previously assumed, experts say more is needed. The wider investigation now requested for Case 004 ought to shed more light on a little-known part of Khmer Rouge rule.

Global progress

The ECCC's pending investigation into crimes of sexual violence is being launched at a time when, around the world, this once-marginalized issue is receiving greater awareness.

Zainab Hawa Bangura, the UN Secretary-General's Special Representative on Sexual Violence in Conflict, listed a number of reasons for this higher profile, including the UN Security Council's approval of two resolutions: Resolution 1820, passed in 2008, which determined that sexual violence is a weapon of war and could constitute war crimes; and 2013's Resolution 2106, which requires that countries do more to tackle sexual violence in conflict, including ensuring that their own laws permit prosecutions for such crimes.

Bangura also credited efforts over the past two years by the UK Foreign Secretary William Hague through his Preventing Sexual Violence in Conflict Initiative. The UK government's Global Summit to End Sexual Violence in Conflict, which is scheduled for June 10-13 in London, ought to raise awareness further, she said.

"And now we have 145 countries [that] have signed a commitment to fight against sexual violence," Bangura told DW. “I think all of this put together has created the momentum that everybody realizes that this is a crime – you commit it you will be punished. Wherever you are, wherever you come from, they will go after you."

Part of the effort to counter sexual violence in conflict requires countries to update their laws on rape – and, in some cases, to draft them in the first place. Other elements include training police and judicial officials, and protecting witnesses. At the heart, said Bangura, was whether leaders had the political will to act.

"The UN on its own cannot address this problem. This is an issue that belongs to member states because it is the country where the crimes are being committed that have the primary legal and moral responsibility to protect their citizens," she said. "It is the failure of the state to protect the citizens that has led to this. It is a collapse of the rule of law. It's the justice system that is not working, where victims cannot go to court and get justice."

Bangura noted that awareness of the issue has progressed rapidly. Today, she said, the UN is working on combating sexual violence in conflict in countries such as South Sudan, Somalia and the Democratic Republic of Congo, and was recently asked to assist in Liberia and Libya. Despite the obvious challenges, she said, "I think we have the light ahead of us."

Amid double standards

And there is much further to go. Clair Duffy is a lawyer with the International Bar Association at the International Criminal Court in The Hague. Previously she worked as a trial monitor at the ECCC, and before that in the prosecutor's office at the International Criminal Tribunal for Rwanda.

Duffy told DW that, although efforts to combat sexual violence in conflict have progressed – in part due to groundbreaking rulings on rape and sexual violence handed down by the Rwanda and Yugoslavia tribunals – key stumbling blocks remain. Most significant, she said, is the mixed track record by international courts when deciding the criminal liability of mid-level and senior-level military and political leaders.

"Courts are willing to convict leaders for killings, for pillaging, and for all other kinds of offences, but rape is still treated as requiring something much more, even where it is just another means of terrorising and controlling a population," Duffy said. "It's often treated as an unfortunate by-product of conflict, or an opportunistic crime, when in fact it is an intrinsic and extremely effective tool for achieving political and military objectives."

Duffy said she agreed with the assessment of many scholars that this constitutes "a double standard," pointing out that international courts to date have seemed to require a higher level of direct involvement of the accused than is needed for other serious crimes.

"And the further up the chain of leadership you go, the harder this generally becomes," she said.

Cambodia's experience

Around 2 million people – one in four of the population – died during the Khmer Rouge's four-year rule of Cambodia. In that time, Pol Pot's government emptied the cities and enslaved the population in rural gulags. People were worked to death in labour gangs, executed for minor infractions, or died from starvation or illness.

A photograph of a forced wedding during the Khmer Rouge's rule of Cambodia (Photo: DC-Cam/DW)

Forced marriage was an integral part of the Khmer Rouge policy to increase population

Although much work has been done on many of the worst aspects of Khmer Rouge rule, the issue of sexual violence has to date received relatively scant attention. Theresa de Langis, one of the few to have researched the subject, said there had long been a misconception that the Khmer Rouge were intolerant of sexual crimes and were building a "utopia of gender equality."

"My research actually shows just the opposite," de Langis told DW. "We have a mounting body of evidence to say, absolutely, rape was used throughout the country, and one of its typical forms was very systematic or at least methodical rapes, gang rapes of groups of women who were already determined to be enemies, raped before they were executed."

The distance of those years and the work done by some NGOs to hold non-judicial forums on the subject has meant more victims are prepared to come forward and talk about their experiences. What is increasingly clear is that sexual violence against women was "widespread and it wasn't secret."

"A lot of the rapes were gang rapes, so clearly there were witnesses," she said. "And some of them were public rapes, they were – in those instances – clearly messages to the whole community that this happens if you are an enemy and, if you will be punished, this is part of the punishment."

De Langis said the news that the ECCC would investigate the issue of sexual violence in Case 004 was "an important step forward," not least given the prevalence of sexual violence against women in Cambodia today.

In the meantime, she said, many people following Case 002 – the trial on charges of genocide, war crimes and crimes against humanity of Nuon Chea, who was Pol Pot's deputy, and the ex-head of state Khieu Samphan – would be shocked to learn about the realities of forced marriage.

"Especially the rapes in forced marriage: where husbands were threatened to actually rape their wives at risk of death or where Khmer Rouge cadres, men and women, would actually assist men to rape their wives," she said. “[The] stories of sexual violence against both men and women will make a significant contribution to our understanding of this atrocity [and] also of atrocities globally."