By Sin Soworn and Silke Studzinsky , 27 June 2012
As counsel for civil parties, we welcome the statement of the ECCC’s Trial Chamber, dated June 5, on the importance of addressing sexual violence in international(ised) courts and tribunals.
We fully agree that at this stage of the proceedings, there is no prospect of the Trial Chamber expanding the indictment with regard to sexual violence under the Khmer Rouge regime, as a matter of law.
But it’s not too late for the Trial Chamber to prioritise the cases of sexual violence, such as forced marriage and some cases of rape outside the context of forced marriage.
The Trial Chamber has severed the cases, and currently only charges relating to the first two forced transfers are being tried in Case 002/01.
The Office of the Co-Prosecutors, and many observers, believe this first trial will be the last trial, given the age of the accused and the expected length of the hearing.
The Trial Chamber always has the authority and discretion to include the charges of forced marriage. We note that 781 civil parties are admitted as direct or indirect victims of forced marriage in Case 002/01 – this victim composition being the second-largest, after those admitted on the basis of forced transfer from Phnom Penh.
Likewise, the Trial Chamber has the discretion and authority to include the few cases of rape that are, according to the recently disclosed preliminary findings of the co-prosecutors, part of the widespread commission of rape and sexual violence.
The Trial Chamber also has the power and function to re-characterise the liability findings in the closing order in accordance with the facts disclosed by the evidence during proceedings.
Therefore, responding to the invitation by the Trial Chamber, which “continues to welcome constructive suggestions that can assist in ensuring that crimes of sexual violence during the Khmer Rouge era are appropriately treated in its work that remains”, we appeal to it to expand the charges in Case 002/01 to forced marriage and rape cases outside the context of forced marriage.
By doing so, the Trial Chamber could demonstrate that sexual crimes are properly addressed at the ECCC.
This will enable appropriate weight to sexual crimes to be addressed by the Trial Chamber and does not override, or compete with, non-judicial measures such as the successful Women’s Hearing that was held in December last year.
Instead, it would clearly demonstrate that the Trial Chamber pays the requisite attention to sexual crimes perpetrated by the Khmer Rouge.
The Trial Chamber has mentioned that “The ECCC also possesses unique mechanisms to enable victims to seek reparation, and victims of sexual violence are included among the consolidated group of civil parties admitted to participate in Case 002.”
We wish to clarify that, despite the fact that all civil parties continue to be members of the consolidated group, currently only civil parties who suffered harm arising from the current charges (the two forced transfers) are eligible for reparation.
Civil parties who are victims of forced marriage and other sexual crimes cannot request reparation linked to their specific suffering derived from sexual crimes, because those crimes are not part of case 002/01.
As a matter of law, any requests for reparation as a result of sexual crimes have to be rejected by the Trial Chamber in accordance with the internal rules.
National counsel for civil parties
International counsel for civil parties