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Good morning everybody. I feel very much honored to be invited to the first international gender justice conference in Phnom Penh. It is crucial to focus on how international and internationalized Courts including the Extraordinary Chambers in the Courts of Cambodia, the ECCC, are dealing with gender based crimes, in particular with sexual crimes. I appreciate that we have the opportunity – today and tomorrow- to learn all together from the experiences in other International and Internationalized Criminal Courts in order to adopt their approach where it is progressive and avoid mistakes which occurred in the past.
Only some days ago Security Council Resolution 1325, which adopted a gender perspective that focused on the special needs of women and girls during repatriation and resettlement, reintegration and post-conflict reconstruction, reached its tenth anniversary. The UN just published its report on Security Council Resolution 1820, dated June 2008, to assess the progress on dealing with charges of sexual violence in the Tribunals for the former Yugoslavia, Rwanda and Sierra Leone. So in light of these developments, I think it is an opportune time for us to stocktake the best practice of dealing with sexual crimes in international and internationalized Courts and the ECCC.
ECCC case 001 against Mr. Kaing Guek Eav is now complete. The pending appeals do not have any impact on, or raise any legal questions in relation to, gender based crimes. Now we are in the middle of case 002 with the trial due to start early next year. The Trial Chamber will be limited in its approach as it is bound to the parameters of the Closing Order. Certain failures during the investigation cannot be healed and will only serve as lessons learnt for other Tribunals.
This morning Kasumi presented to us the various forms of sexual crimes during the period of Democratic Kampuchea that she discovered during her research. Despite this solid research, I consider her results are likely to be the tip of the iceberg, and reason for a more thorough and broader investigation than that which has occurred. However, the starting conditions for such an investigation are far from ideal, given that many victims and witnesses are already deceased and speaking out about acts of sexual violence needs the creation of appropriate circumstances for victims and witnesses to be able to do so.
In order to ensure truth and justice, and to continue the fight against impunity, these serious crimes of sexual violence must be addressed appropriately and comprehensively at trial, notwithstanding that the investigations in case 002 have thus far failed to do so.
For a better understanding of the current situation before the ECCC I would like to give an overview as to whether and how effectively the ECCC has addressed sexual violence thus far.
The basis for the judicial investigations is the Introductory Submission, concluded in July 2007 by the Office of the Co-Prosecutors, and any subsequent Supplementary Submissions.
In February 2008 when the first appearance of Civil Parties took place and at the same time as my arrival in Cambodia, I could not find any sexual crimes mentioned in the Introductory Submission.
When queried at the outset about this omission by Civil Party Lawyers, the Co-Prosecutors argued that they did not have sufficient evidence of sexual crimes. Due to the overwhelming number of mass killings and ill-treatment of the population, the lapse of time following more than 30 years after the crimes and the duty to expedite the proceedings, they only focused on these crimes and did not even attempt to investigate sexual crimes. The Co-Prosecutors’ preliminary investigations were based on the evidence collected and delivered to the ECCC by the Documentation Centre of Cambodia and the common approach or assumptions of historians and scholars that the Khmer Rouge regime was a puritanical one where sexual crimes did not occur or, if they did, were severely punished.
Although all historians cursively mentioned the practice of forced marriage, they did not consider these marriages as possible crimes against the civilian population. The Co-Prosecutors followed this approach in their Introductory Submission.
After the split of case 001 and case 002 the Co-Investigating Judges discovered one case of rape committed in the S-21 security center. The interrogator inserted a stick into the vagina of the Accused’s former school teacher. This case was revealed by the Accused, Mr. Kaing Guek Eav, on his own initiative. He also admitted that his superior did not order any punishment and therefore neither did he. The Accused stated during trial: “If I understand the law properly if the act was a sexual abuse, I would not spare. I would request my superior. At the time I did not fully know the law. I did not study any penal code of Cambodia and therefore I did not know about this matter. Probably even my superior did not know it.”
During the investigation some witnesses mentioned other cases of rape committed in S-21 and also a case of forced marriage in S-24 but the investigators, working under the supervision of the Co-Investigating Judges, did not ask any further questions much less actively investigate such kind of crimes. Subsequently, the Co-Investigating Judges did not indict these cases and the Trial Chamber did not find sufficient evidence to convict the Accused for more than the one admitted rape.
In February 2009, before the trial in case 001 started, Civil Party Lawyers filed a request for a supplementary submission on the mentioned case of forced marriage at S-24 in order to have an additional closing order joined with the pending closing order. However the Co-Prosecutors never officially responded. The submission was simply ignored.
Civil Party Lawyers’ attempts to address cases of sexual violence, and forced marriage among staff in particular, together with the involvement of the Accused during the trial were mostly interrupted and suspended by the Trial Chamber, ruling this to be beyond the scope of the case before it, notwithstanding that shedding light on forced marriages among staff and sexual violence against prisoners in S-21 and S-24 would have greatly enhanced the working and living conditions of those staff and prisoners.
One Civil Party revealed during the trial and after her appearance before the Chamber that she was raped by a guard in S-21. The Trial Chamber excluded this testimony as being belated. The Chamber did not consider, or allow for the fact, that the Civil Party provided this testimony as soon as circumstances were such that she felt able to disclose these facts.
Consequently, the Accused in case 001 was only convicted for one case of rape which the Chamber also subsumed under the crime of torture.
The failure of the Co-Prosecutors to investigate sexual violence, including forced marriages, their refusal to consider the request by Civil Party Lawyers, and the subsequent lack of further investigation of sexual violence by the Co-Investigating Judges led to certain limitations or constraints for the Trial Chamber, which was bound by the closing order. However, the Trial Chamber missed the chance to shed more light on sexual violence during the trial and seemed to be uninterested in exploring the living and working conditions of staff and prisoners.
Thus, I would like to conclude that in case 001 all bodies of the Court failed to address cases of sexual violence properly.
In case 002, Civil Party Lawyers publicly submitted in October 2008 the Civil Party application of a transgender, containing numerous acts of sexual violence directed against her because of her sexual orientation, including her forced marriage to a woman. Under the Khmer Rouge she was in a network of other transgendered people who suffered similar crimes because of their sexuality. The Co-Prosecutors failed to file a supplementary submission in order to seize the Co-Investigative Judges with the investigation of the treatment of sexual minorities during the regime. As a result the sexual violence that she suffered is not part of the investigations.
Shortly after, Civil Party Lawyers filed four Civil Party applications of forced marriages with detailed description of the sexual violence directed against them, including forced pregnancy in one case. The victims are three females and one male.
The reaction in and outside the Court was ambiguous: Court officials asked in the corridors how a man can be raped; or joked about couples of forced marriage who are still together, wondering whether the forced marriage can be a crime; or why we should even be talking about forced marriages in a country where family arranged marriages are still common practice.
However, we also received encouraging feedback from sexual minorities, even outside Cambodia, who hoped that the treatment of sexual minorities under the Khmer Rouge could be acknowledged. Even to this day, more and more victims of sexual violence, and in particular of forced marriage, have come forward with their stories, have dared to stand up publicly and have filed Civil Party applications describing the sexual violence they suffered. Finally, by the end of April 2009, the Co-Prosecutors filed a Supplementary Submission to the Co-Investigating Judges recommending the investigation of forced marriages but limited to the five cases that Civil Party Lawyers had submitted. This was the first partial success whereby cases of sexual violence were included in the investigation.
In the meantime Civil Party Lawyers submitted several investigative requests to examine thoroughly the cases of victims and witnesses who had already been interviewed and had mentioned sexual violence. However, according to the policy or practice of the investigators they were never asked for further details.
It is a common experience that victims of sexual violence are stigmatized and face difficulties speaking about this intimate crime in detail. It is also common experience that these victims only tell their story if they are appropriately asked. No answer without a suitable or appropriate question.
The broad majority of the requests were rejected, rulings later upheld by the Pre-Trial Chamber on appeal.
In November 2009, surprisingly, the Co-Investigating Judges publicly acknowledged that forced marriages country-wide were under investigation. For the numerous victims of forced marriages this step had and has enormous importance in acknowledging the unlawfulness of these acts that are, for the first time, considered as crimes. This must be held as an important success for the intervention of Civil Parties who raised this issue. Without Civil Party action forced marriage would not have been included in the indictment.
However, the indictment remains flawed with respect to the legal characterization of forced marriages. The closing order subsumes this crime only as “rape” and “other inhumane acts”, the latter without stating which exact crime is the inhumane act and without elaborating on the elements of it.
Further, the indictment’s focus on the requirement of “physical invasion of a sexual nature” disregards the fact that men and women were equally victims of forced marriage. The use of forced marriage as a war crime and means of genocide, for example against the Cham minority, has likewise been neglected and is absent in the indictment.
The existing “sexual crimes” provision in the context of crimes against humanity does not necessarily or adequately address the “multi-layered and distinctive nature” of crimes such as forced marriage. For the first time the Appeal Chamber of the Special Court for Sierra Leone defined the conscription into marriage – that is forced marriage – as ‘another inhumane act’.
Therefore, Civil Party Lawyers suggested qualifying forced marriage as rape, and under other inhumane acts as forced marriage, sexual enslavement and forced pregnancy.
The Co-Prosecutors adopted this approach largely and classified forced marriage as ‘rape’, while ‘forced marriage’ and ‘forced pregnancy’ were classified under ‘other inhumane acts’.
The Closing Order does not fully encapsulate the character of forced marriage if it is subsumed only as rape and other inhumane acts, the latter not being defined at all.
Moreover, the Closing Order completely fails to indict rape outside of forced marriages. The identified cases of rape were not indicted as rape because of the erroneous conclusion of the Co-Investigating Judges that the CPK policy was to punish rape and to prevent this crime. The Co-Investigating Judges stated that: “it cannot be considered that rape was one of the crimes used by the CPK leaders to implement the common purpose [of the Joint Criminal Enterprise]”.
Thus, ‘rape’ appears only in the context of forced marriage and not as a crime of itself. The Co-Investigating Judges ignored or overlooked that interrogators, guards, and CPK cadres who committed the acts of rape, intended to sexually penetrate the victims and knew that the victims did not consent to such penetration – thereby meeting all the legal elements of rape.
Evidence also suggests that perpetrators of sexual crimes were allowed to go unpunished if they were regarded as committed and reliable revolutionaries. For example, a request was sent to the chief of a prison that a certain prisoner, charged with rape, be released because he was considered to be an ‘honest’ person.
In a separate case, the chairman of another prison was charged with rape. After an investigation determined that he was committed to the revolution, he was neither punished nor dismissed.
Another well documented example is the rape case in S-21 where the Accused did not sanction the perpetrator and did not receive any order to do so by his superior. Although Civil Party Lawyers introduced this evidence, which contradicts the common perception that rape was harshly punished, the Co-Investigating Judges failed to indict the Defendants in case 002 with rape and other acts of sexual violence outside of forced marriage.
Given that the rape cases in security centers and prisons under investigation are facts in the indictment the Trial Chamber is invited to examine these cases and to characterize them properly like the Co-Prosecutors have done in their final submission. This would provide at least some acknowledgment for victims of sexual crimes, although limited to those sexual crimes that occurred in the crime sites under investigation.
The ECCC is the most recent Court to have been established among its sister Courts, yet it deals with crimes that were committed the longest time ago compared to those other tribunals. Yet despite its recent establishment and being able to benefit from several years of jurisprudence from other tribunals, the ECCC has experienced certain difficulties relating to sexual crimes: First, the time difference between the crimes and their legal reappraisal has raised issues regarding the applicable laws in operation at that time; and second, the specific provisions of the Agreement between the United Nations and the Kingdom of Cambodia and the subsequent Law implementing that Agreement appear inconsistent alongside each other. .
Bearing in mind the principle of nulla poena sine lege – no penalty without law – the question arises regarding what types of sexual crimes apply on the facts between 1975 and 1979.
The recognition of sexual crimes in international criminal law is recent. So far, ‘rape’ can be traced back as a crime against humanity to the World War II trials. Although in the Nuremberg and Tokyo Charter ‘rape’ was not listed as a crime against humanity, it was expressly named as a crime against humanity in the Control Council Law No.10 which explicitly acknowledged for the first time that acts of ‘rape’ could be considered as crimes against humanity.
This is reflected in the Statute of the ECCC and the ECCC Law, which lists rape as a crime against humanity. This Law is the implementing law of the Agreement between the United Nations and the Kingdom of Cambodia. However, the Agreement refers to the Rome Statute of the International Criminal Court for the definition of crimes against humanity, which has recognized more specific sexual crimes such as forced pregnancy and sexual enslavement. In contrast, the ECCC Law adopted the Statute of the International Criminal Court for Rwanda which included ‘rape’ as the only sexual crime under crimes against humanity.
So far it is unclear if the Agreement prevails over the ECCC Law. The United Nations remains silent. Moreover, the UN failed to monitor the correct implementation of the Agreement in the ECCC Law and does not control the correct application of the ECCC Law during the course of daily business. Furthermore, if the definition of the Rome Statute for crimes against humanity applies in accordance with the Agreement, it is questionable whether this would violate the principle nulla poena sin lege – no penalty without law – as these specific crimes may have been customary law between 1975 and 1979. The Statutes, jurisprudence and practice of the other Courts apply only partly to the ECCC, namely as far as the principle of prohibition on retroactive criminal-lawmaking is not violated.
However, the clause “other inhumane acts” could be used to subsume crimes of similar gravity, but on the other hand it can not serve as a catch-all clause and create new crimes that did not exist internationally or as national crimes during the relevant time 1975-1979.
The Special Court for Sierra Leone could serve as an example in this regard. Its Appeal Chamber categorised “forced marriage” as “other inhumane act” under crimes against humanity, although forced marriage had never appeared before as an international crime.
Application and Significance of Security Council Resolution 1325 and 1820
The resolutions 1325 and 1820 of the Security Council mainly deal with sexual violence in ‘armed conflict’ situations
Whether or not the existence of an armed conflict is a general requirement in relation to a specific category of atrocity crime remains a moot point; the Yugoslavia, Rwanda and Sierra Leone tribunals were established to deal with crimes in armed conflict.
In contrast, the ECCC mainly focuses on crimes against humanity, as the armed conflict between Democratic Kampuchea and Vietnam covers only a small percentage of crimes that were committed. The majority of crimes were committed as a widespread or systematic attack against the civilian population unrelated to the armed conflict. Consequently, the definition of crimes against humanity in the Statute of the ECCC does not include the requirement that the crime must be committed in armed conflict. The Yugoslavia Tribunal even has the requirement of armed conflict as chapeau element of crimes against humanity alongside the requirement existing to prosecute war crimes.
Although mainly created for and focusing on armed conflict, and aiming to foster peace and security by encompassing gender perspective, Security Council resolutions 1325 and 1820 both acknowledge that rape and other forms of sexual violence can constitute not only a war crime but also crimes against humanity, or a constitutive act with respect to genocide, the latter not necessarily linked to an armed conflict.
It can be concluded that the ECCC occupies a unique position among its sister tribunals, having regard to the void or missing link between, on the one hand the majority of the crimes committed (such crimes being committed by the Khmer Rouge against the civilian population), and on the other hand the armed conflict between Democratic Kampuchea and Vietnam.
However, as it is acknowledged that sexual violence as a crime against humanity does not require an armed conflict, the resolutions necessarily cover the ECCC.
Therefore, the proper prosecution of sexual violence, ending the impunity of those acts, and the inclusion of a gender perspective in order to contribute to peace, security and reconciliation are relevant obligations for the ECCC that can be derived from the resolutions. Thus, monitoring the ECCC and assessing how it deals with sexual crimes is appropriate. I hope and expect that the next UN Report on the performance of criminal tribunals in light of the security resolutions will include the Extraordinary Chambers in the Courts of Cambodia.
In order to investigate sexual crimes against women, men and children the investigating bodies need the will, commitment and resources to identify and prosecute these crimes. One prerequisite for achieving this is the full and equal participation of gender trained women in the decision-making process of the investigations and the establishing of gender advisers to the prosecution and investigating judges. The strategic planning of the scope of investigation and prosecution needs to encompass sexual violence in its various forms by including gender perspectives in all decision-making.
As a next step, the creation of an appropriate environment in which victims of sexual violence feel safe and protected is required. Furthermore, the Court must seek to establish circumstances sensitive and attuned to the needs of victims to enable their testimony.
The full and equal participation of female judges with gender perspective and trained in the specificity of sexual violence, including special gender advisers to all judges, can assist with properly addressing sexual crimes.
With regard to the ECCC neither the Prosecution nor the Office of the Investigating Judges employ a single gender-trained woman with decision making power. In the whole Court no gender advisor is employed. Therefore, it is not surprising that the investigative bodies at the ECCC failed to employ a gender perspective and to conduct proper investigations on sexual violence. Consequently, a conservative male approach omitting the reality of sexual violence has been taken at the ECCC.
All investigators are males, as are the interpreters. The few cases where victims of sexual violence, including victims of forced marriage were interviewed, it became apparent that the mainly female victims were often inappropriately addressed and treated. They had no option to choose the sex of the investigators or the interpreters and were not even entitled to the presence of their legal representatives during the interviews by investigators. Victims as Civil Parties only have the choice to participate in this very uncomfortable situation and disclose their experiences of sexual violence with male staff or, if they make use of their right to refuse the interview their case will not be heard.
This unsatisfactory choice led most Civil Parties to the decision to agree to the interview rather than have their story excluded from the case.
The failure to hire gender trained female staff has already led to the collapse of a victim of gang rape who was surrounded by male investigators and interpreter. She had explicitly asked for female staff which was of course rejected because there are none. Other victims suffered re-traumatization because of the insensitive behavior of male investigators. Civil Party Lawyers’ requests to hire gender trained (female) investigators and interpreters for victims of sexual violence continues to be disregarded and ignored.
The Pre-Trial Chamber and the Trial Chamber do not have any Cambodian female judges. Only the two international judges of the Pre-Trial Chamber and Trial Chamber respectively provide a gender balance. Gender advisors to the Chambers do not exist.
To conclude, under these circumstances it is not surprising that the prosecutorial and investigative bodies failed to adopt or employ at the outset a gender perspective in the prosecution and investigation strategy planning. The exclusion of women in decision making positions and employing a male-only approach towards victims of sexual violence has resulted in the failure to properly include sexual violence at the ECCC. This environment is not only unwelcoming for all victims of sexual violence, it also acts as a deterrent for their participation.
It is hard to imagine that the investigations commenced in 2006, six years after Security Council Resolution 1325, and more than ten years after the establishment of other international Tribunals with resulting jurisprudence regarding how to deal with sexual violence as an international crime.
Hopefully, the United Nations will monitor the way in which sexual violence is dealt with at the ECCC, its newest tribunal, in accordance with the resolutions.
A lot of mistakes that have been made in the past during the investigations cannot be ameliorated by the Trial Chamber. However, there is still the opportunity to invite experts on sexual violence as international crimes, to reconsider the legal characterization of rape outside of forced marriages, to correctly characterize the crime of forced marriage and to hear the voices of the victims under appropriate, sensitive, safe and secure circumstances. This is a heavy burden for the Trial Chamber but it is feasible with willingness and commitment.
The challenges during the trial will be:
- To acknowledge the occurrence of rape in security centers and work sites due to the failure of the CPK leaders to punish and/or to prevent rape;
- To achieve legal recognition of the unlawfulness of these specific sexual violence crimes during the DK period;
- To introduce evidence of Civil Parties, witnesses and exhibits establishing the facts of the various forms of sexual violence and the related CPK policy and to invite experts on sexual violence as an international crime;
- To contribute to the creation of circumstances for victims/witnesses to be heard appropriately with regard to these specific crimes.
The ECCC should not miss the unique chance to include gender based crimes in the proceedings and to fulfill its mission of achieving justice and truth.