Prosecuting the Khmer Rouge Marriages

Abstract.

At the Extraordinary Chambers in the Courts of Cambodia (ECCC), the trial against the two surviving leaders of the Khmer Rouge charged in Case 002 is about to deal with the ‘regulation of marriage’. This is the name given by the ECCC to the Khmer Rouge-instigated marriages also known as ‘red weddings’ or ‘forced marriage’. In this symbolically laden case, the charges relating to the marriages stand as the only alleged crime of sexual and gender-based violence after no charges were brought for the many rapes committed in security centres and work cooperatives. As such, the charges have been described as ‘the Court’s best last chance to contribute to the ever-evolving body of law aimed at better responding to perpetually neglected sexual and other gender-based crimes in times of conflict and atrocity’. In this article, I examine the ways in which the marriages so far have appeared at the ECCC. One aim in writing this is to simply bring to attention what is about to unfold at trial. But in reading the representations of the marriages, the difficulties in prosecuting gender-based harms also come into view. Thus, the charges relating to the ‘regulation of marriage’ raise a question about the limits of symbolic value in any one trial.

Notes

¹ Vismann Cornelia ‘“Rejouer les crimes” Theater vs Video’ (2001) 13 Cardozo Studies in Law and Literature 119 at 124–125.

² At the time of writing (March 2016), this segment is planned for May 2016.

³ There is some controversy over the exact relationship between the Khmer Rouge and the Communist Party of Democratic Kampuchea with suggestions that this is more complex than first appears. The name ‘Khmer Rouge’ was given to the group by Prince Sihanouk. See Linton Suzannah ‘Putting Cambodia’s Extraordinary Chambers into Context’ (2007) 11 Singapore Year Book of International Law and Contributors 195. On the Khmer Rouge period more generally, see, for example, Becker Elizabeth When the War was Over: The Voices of Cambodia’s Revolution and its People Simon and Schuster New York 1986; Chandler David Voices from S-21: Terror and History in Pol Pot’s Secret Prison University of California Press Berkeley Los Angeles & London 1999; Alexander Laban Hinton Why Did They Kill? Cambodia in the Shadow of Genocide University of California Press Berkeley 2005; Kiernan Ben The Pol Pot Regime: Race, Power and Genocide in Cambodia under the Khmer Rouge, 1975–79 3rd ed Yale University Press New Haven 2008; Ben Kiernan Genocide and Resistance in Southeast Asia: Documentation, Denial and Justice in Cambodia and East Timor Transaction Publishers New Brunswick 2008.

⁴ Agreement Between The United Nations and The Royal Government of Cambodia Concerning the Prosecution under Cambodian Law of Crimes Committed During the Period of Democratic Kampuchea signed 6 June 2003 (entered into force 29 April 2005) (‘ECCC Agreement’).

⁵ Prosecutors v Nuon Chea, Ieng Sary, Khieu Samphan and Ieng Thirith (Closing Order) (ECCC Trial Chamber Case No. 002 15 Sep 2010) (‘Closing Order’). Since the charges were issued, two of the charged persons have died: in 2013 Ieng Sary and two years later his wife, Ieng Thirith. Left accused for the ‘regulation of marriage’ are ‘Brother No 2’, Nuon Chea, and former Head of State, Khieu Samphan.

⁶ Closing Order at 1430 and 1442.

⁷ See discussion below.

⁸ de Languis Theresa ‘A Missed Opportunity, a Last Hope? Prosecuting Sexual Crimes under the Khmer Rouge Regime’ (2014) 2 Cambodia Law and Policy Journal 42. Also available at http://cambodialpj.org/article/a-missed-opportunity-a-last-hope-prosecuting-sexual-crimes-under-the-khmer-rouge-regime/ Accessed 22 March 2016.

⁹ See, for example, Prosecutor v Jean-Paul Akayesu (Judgment) (ICTR Chamber 1 Case No. ICTR-96-4-T 02 September 1998) (‘Akayesu Judgment’); Prosecutor v Ante Furundzjia (Judgment) (International Criminal Tribunal for the former Yugoslavia Trial Chamber Case No: IT-95-17/1-T 10 December 1998); Prosecutor v Dragoljub Kunarac, Radomir Kovac and Zuron Vukovic (Judgment) (International Criminal Tribunal for former Yugoslavia Trial Chamber Case No: IT-96-23-T& IT-96-23/1-T 22 February 2001); Prosecutor v Sesay, Kallon & Gbao (Judgment) (Special Court for Sierra Leone Trial Chamber I Case No. SCSL-04-15-T 2 March 2009).

¹⁰ Engle Karen ‘Feminism and its (Dis)Contents: Criminalizing Wartime Rape in Bosnia and Herzegovina’ (2005) 99 American Journal of International Law 778.

¹¹ Buss Doris ‘Rethinking “Rape as a Weapon of War”’ (2009) 17 Feminist Legal Studies 145.

¹² Halley Janet ‘Rape in Berlin: Reconsidering the Criminalisation of Rape in the International Law of Armed Conflict’ (2008) 9 Melbourne Journal of International Law 78. 

¹³ For purposes of clarity, I am not referring to the feminist technic of ‘world travelling’, which, in contrast to the phenomenon I am describing here, is thoroughly grounded in experience. See, for example, Lugones Maria ‘Playfulness, “World”-Traveling, and Loving Perception’ (1987) 2 Hypatia 3; Charlesworth Hilary ‘Feminist Methods in International Law’ (1999) 93 America Journal of International Law 379 at 383–385.

¹⁴ Halley et al ‘From the International to the Local in Feminist Legal Responses to Rape, Prostitution/Sex Work, and Sex Trafficking: Four Studies in Contemporary Governance Feminism’ (2006) 29 Harvard Journal of Law and Gender 335.

¹⁵ See Charlesworth Hilary ‘The Woman Question in International Law’ (2011) 1 Asian Journal of International Law 33; Fraser Nancy ‘Feminism, Capitalism and the Cunning of History’ (2009) 56 New Left Review 56; Otto Dianne ‘Exile of Inclusion: Reflections on Gender Issues in International Law over the Last Decade’ (2009) 10 Melbourne Journal of International Law 10.

¹⁶ Henry Nicola ‘The Fixation on Wartime Rape: Feminist Critique and International Criminal Law’ (2014) 23(1) Social & Legal Studies 93 at 94.

¹⁷ Law on the Establishment of the Extraordinary Chambers, with inclusion of amendments as promulgated on 27 October 2004 (NS/RKM/1004/006) (Unofficial translation by the Council of Jurists and the Secretariat of the Task Force. Revised 26 August 2007) (‘ECCC Law’).

¹⁸ See, for example, Jacobsen Trudy Lost Goddesses: The Denial of Female Power in Cambodia NIAS Press Copenhagen 2008; Nakagawa Kasumi ‘Gender-Based Violence During the Khmer Rouge Regime: Stories of Survivors from the Democratic Kampuchea (1975–1979)’ 2nd ed March 2008 <http://gbvkr.org/publications-and-materials/research-and-documentation/> Accessed 22 March 2016; Studzinsky Silke ‘Neglected Crimes: The Challenge of Raising Sexual and Gender-Based Crimes before the Extraordinary Chambers in the Courts of Cambodia’ in Buckley-Zistel Susanne and Stanley Ruth (eds) Gender in Transitional Justice Palgrave Macmillan Basingstoke 2011 p 92; Williams Sarah and Palmer Emma ‘The Extraordinary Chambers in the Courts of Cambodia: Developing the Law on Sexual Violence’ (2015) 15 International Criminal Law Review 452 at 456.

¹⁹ Amongst internationalised courts and tribunals, the ECCC is unique in that it follows the French inquisitorial model whereby investigation and its initiation are split between the prosecution and independent investigative judges. Prosecution is initiated by the Co-Prosecutors and on the basis of their Introductory Submission, the Co-Investigative Judges carry out the main investigation. (See ECCC Law, art 25 on the independence of Co-Investigative Judges and Internal Rule 49)

²⁰ As a result of its internationalised feature, all main posts at the ECCC are held by one national and one international staff. Hence, Co-Prosecutor etc.

²¹ ‘On International Criminal Justice: Interview with Andrew Cayley’ Global Brief 9 September 2011 (Andrew Cayley was International Co-Prosecutor 2009–2013).

²² Studzinsky above note 18 at 101.

²³ Cayley Andrew ‘KR’s Female Victims Were Not Forgotten’ Phnom Penh Post (Phnom Penh) 1 June 2012.

²⁴ Studzinsky Silke Challenges to a Successful Prosecution of Sexualized and Gender-Based Crimes paper presented at the International Conference on Bangladesh Genocide and the Issue of Justice, Heidelberg, Germany, 4–5 July 2013 <http://www.civilparties.org/?page_id=48> Accessed 22 March 2016.

²⁵ As above at 3.

²⁶ There were exceptions, for example, Kalyanee Mam ‘Evidence of Sexual Abuse During the Rule of Democratic Kampuchea’ (March 2001) 15 Searching for the Truth 2.

²⁷ Chanda Ny and Studzinsky Silke ‘Four Victims of Forced Marriage under the Khmer Rouge Regime File their Complaint to the ECCC’ Press Release 16 October 2008 <http://www.civilparties.org/?p=295> Accessed 30 March 2016.

²⁸ Second Request for Investigative Actions Concerning Forced Marriages and Forced Sexual Relations dated 15 July and filed on 23 July 2009; Co-Lawyers for the Civil Parties’ Fourth Investigative Request Concerning Forced Marriages and Sexually Related Crimes dated 4 December 2009 and filed on 9 December 2009; Decision on Appeal of Co-Lawyers for Civil Parties Against Order Rejecting Request to Interview Persons Named in The Forced Marriage and Enforced Disappearance Requests for Investigative Action (ECCC Pre-Trial Chamber Decision, 21 July 2010); Appeal of Co-Lawyers for Civil Parties Against Order Rejecting Request to Interview Persons Named in The Forced Marriage and Enforced Disappearance Requests For Investigative Action (ECCC Pre-Trial Chamber Decision, 21 July 2010) at 2, 3.

²⁹ In accordance with the Internal Rules, the Closing Order ‘sets out the identity of the Accused, a description of the material facts and their legal characterisation by the Co-Investigating Judges, including the relevant criminal provisions and the nature of the criminal responsibility’. ECCC, Internal Rules (Rev 9) (adopted 16 January 2015) r 67(2).

³⁰ Closing Order at 1426.

³¹ For critiques of this reading, see De Langis Theresa ‘“This Is Now the Most Important Trial in the World”: A New Reading of Code #6, the Rule Against Immoral Offenses under the Khmer Rouge Regime’ (2014) 3 Cambodia Law and Policy Journal 61; and Elander Maria Figures of the Victim in International Criminal Justice (forthcoming).

³² Closing Order at 1430, 1442.

³³ Heuveline Patrick and Poch Bunnak ‘Do Marriages Forget their Past? Marital Stability in Post-Khmer Rouge Cambodia’ (2006) 43(1) Demography 99, 101.

³⁴ Becker above note 3 at 240; Mam Kaylanee ‘The Endurance of the Cambodian Family under the Khmer Rouge Regime: An Oral History’ in Susan E. Cook (ed.) Genocide in Cambodia and Rwanda: New Perspectives Transaction Publishers New Brunswick 2006 p 119 at 123–133. For a slightly different reading of the policies directed towards women and mothers, see LeVine Peg Love and Dread in Cambodia: Weddings, Births and Ritual Harm under the Khmer Rouge National University of Singapore Press Singapore 2010 p 107. For a description of traditional marriages and family organisation, see Jacobsen above note 18 at 131–144, 223.

³⁵ Nakagawa above note 18 at 15.

³⁶ ‘Re-education’ was a euphemism used by the Khmer Rouge and would usually mean either imprisonment or death. Jain Neha ‘Forced Marriage as a Crime Against Humanity, Problems of Definition and Prosecution’ (2008) 6 Journal of International Criminal Justice 1013 at 1024; Strasser et al A Study about Victims’ Participation at the Extraordinary Chambers in the Courts of Cambodia and Gender-Based Violence under the Khmer Rouge Regime Transcultural Psychosocial Organisation Phnom Penh September 2015 p 53–54.

³⁷ Studzinsky above note 18 at 93; Ye Beini ‘Forced Marriages as Mirrors of Cambodian Conflict Transformation’ (2011) 23 Peace Review: A Journal of Social Justice 23.

³⁸ See in particular Heuveline and Poch above note 32 at 118 who, on the basis of a quantitative study, found a ‘striking … lack of a notable difference’ in marriage stability between the Khmer Rouge and post-KR weddings. (118). Also see LeVine above note 33 at 87, who interviewed 192 persons who were wed during this period. 153 or 80% of these are still with their assigned partner. While her sample, assembled through snowballing, cannot be generalised for the larger population, it does suggest that many couples have stayed together.

³⁹ LeVine above note 33; Strasser et al above note 35 at 56–58.

⁴⁰ See, for example, the documentary Red Wedding (Directed by Lida Chan and Guillaume Suon Bophana Production Bophana Center Tipasa Production 2012).

⁴¹ See, for example, Becker, above note 3 at 267; Jain above note 35; Nakagawa above note 18 at 14–15; Mam above note 33; Mam Kaylanee ‘An Oral History of Family Life under the Khmer Rouge’ Working Paper Yale University 1999 p 17; Ye above note 36. Also the ECCC describes them as forced marriages.

⁴² See, for example, LeVine above note 33 in particular at 26–29, 175; Peg LeVine ‘Weddings under the Khmer Rouge: How Has “Forced” Been Decided?’ Phnom Penh Post 4 November 2014 <http://www.phnompenhpost.com/weddings-under-khmer-rouge-how-has-forced-been-decided> Accessed 16 February 2016.

⁴³ LeVine above note 33 at 26–29, 175.

⁴⁴ ECCC Internal Rules r 23.

⁴⁵ ‘Reaching Out to Newly Admitted Civil Parties’ (Aug 2011) 39 ECCC Court Report 1.

⁴⁶ Strasser et al above note 35 at 33.

⁴⁷ ECCC Internal Rules r 98(2).

⁴⁸ The meaning of this is disputed. Civil party lawyer Silke Studzinsky has argued that the Trial Chamber is not bound by the Closing Order conclusion that rapes in security centres could not be linked to the accused persons. However, the Trial Chamber found that including these rapes would amount to adding new facts, something it is not authorised to do. See discussion by Studzinsky ‘Comments in Response to International Co-Prosecutor’s Supplementary Submission in Case 004 Requesting the Investigation of Sexual or Gender-Based Violence’ 31 May 2013 <http://www.civilparties.org/?p=1716> Accessed 22 March 2016.

⁴⁹ Closing Order at 1430 and 1442. In order to be characterised as an international crime, the marriages must meet the criteria of both the chapeau elements of the crime (here crimes against humanity) and the underlying offences (here the separate categories of rape and other inhumane acts). 

⁵⁰ ECCC Law Art 5.

⁵¹ I.e. Nullum Crimen sine lege. Ieng Thirith Appeal Against Closing Order (18 Oct 2010) at 61; Ieng Sary’s Appeal Against Closing Order (25 Oct 2010) at 218; Decision on Appeals by Nuon Chea and Ieng Thirith Against the Closing Order (ECCC Pre-Trial Chamber Case 002 15 February 2011) at 154.

⁵² Decision on Appeals by Nuon Chea and Ieng Thirith Against the Closing Order (ECCC Pre-Trial Chamber Case 002 15 February 2011) at 154.

⁵³ Closing Order at 844.

⁵⁴ At 855.

⁵⁵ At 856.

⁵⁶ At 855.

⁵⁷ At 1447.

⁵⁸ For a discussion on other inhumane acts, see Decision on Appeals by Nuon Chea and Ieng Thirith Against the Closing Order, above note 51 at 158–164.

⁵⁹ LeVine above note 33 at 175.

⁶⁰ As above at 61.

⁶¹ As above at 175.

⁶² As above at 183.

⁶³ As above at 183

⁶⁴ As above at 181.

⁶⁵ As above at 182–183.

⁶⁶ As above at 181.

⁶⁷ As above at 183.

⁶⁸ See, for example, Askin Kelly D ‘Prosecuting Wartime Rape and Other Gender-Related Crimes under International Law: Extraordinary Advances, Enduring Obstacles’ (2003) 21 Berkeley Journal of International Law 288; Charlesworth above note 13; Chinkin Christine ‘Rape and Sexual Abuse of Women in International Law’ (1994) 5 European Journal of International Law 326.

⁶⁹ See, for example, Nedelsky Jennifer Law's Relations: A Relational Theory of Self, Autonomy, and Law Oxford University Press Oxford & New York 2011; West Robin ‘Jurisprudence and Gender’ (1988) 55 University of Chicago Law Review 1.

⁷⁰ Butler Judith Precarious Life Verso London & New York 2004 p 20.

⁷¹ As above.

⁷² Prosecutor v Brima, Kamara and Kanu (AFRC case) (Judgment) (Special Court for Sierra Leone Trial Chamber II SCSL-2004-16-T, 20 June 2007) (‘AFRC Trial Judgment’) found no distinct issues, translating the suffering of forced marriage into the underlying offence of sexual slavery, an enumerated act under the SCSL statute but not at ECCC. See also Frulli Micaela ‘Advancing International Criminal Law: The Special Court for Sierra Leone Recognizes Forced Marriage as a “New” Crime Against Humanity’ (2008) 6 Journal of International Criminal Justice 1033 at 1036.

⁷³ AFRC case above note 72 at 195.

⁷⁴ Closing Order at 1431.

⁷⁵ ‘The central elements of the crime of rape cannot be captured in a mechanical definition of objects and body parts.’ Akayesu Judgment above note 9 at 597. Celebrated by many feminists, the term was successfully lobbied for at the ICC, and now appears in International Criminal Court Elements of Crimes Doc No ICC-ASP/1/3 (part II-B) (adopted and entered into force 9 September 2002) (‘ICC Elements of Crime’).

⁷⁶ ICC Elements of Crime art 7(1)(g)-1.1 Fn 15.

⁷⁷ At 1447.

⁷⁸ At 1447.

⁷⁹ At 1445.

⁸⁰ Otto Dianne ‘Lost in Translation: Re-scripting the Sexed Subjects of International Human Rights Law’ in Anne Orford (ed.) International Law and its Others Cambridge University Press Cambridge & New York 2006 p 318 at 325.

⁸¹ Enloe Cynthia Maneuvers: The International Politics of Militarizing Women's Lives University of California Press Berkeley Los Angeles & London 2000 p 109.