The Extraordinary Chambers in the Courts of Cambodia has come around to confronting sexual and gender-based violence head on in recent years, despite internal rules at the court that intially impeded the prosecution of these crimes, according to a new article in the International Feminist Journal of Politics.
In the years leading up to the founding of the ECCC in 2004, international courts such as the United Nations’ International Criminal Court (ICC) developed procedural laws to address gender-based violence.
But the tribunal, a unique hybrid based on a mixture of Cambodian and international law, failed to adopt rules that facilitated the prosecution of gender-based violence, the authors found. This was partly due to a belief that the Khmer Rouge’s “moral code”, which prohibited sexual relations outside of marriage, made it nearly impossible to commit gender-based violence during their rule. Prosecutors instead focused on assassinations and the responsibility of top Khmer Rouge leaders for these deaths.
As a result, the ECCC issued just one conviction related to sexual and gender-based violence during its first decade of existence. This was despite ample evidence that such violence was widespread during the Khmer Rouge rule, the authors noted.
This dynamic eventually changed, however, when people within the court worked to shift priorities, leading to the prosecution of crimes such as rape and forced marriage. “Some actors have persistently generated tensions within the ECCC to encourage prosecutors, investigators and judges to consider [sexual and gender-based violence],” the authors wrote.
Some of the study’s interviewees said that international civil party lawyer Silke Studzinsky, along with other recent civil party co-lead lawyers, played a strong role in bringing gender-based violence to the attention of the court.
Two defendants, Nuon Chea and Khieu Samphan, were eventually charged with “inhumane acts” like forced marriage and sexual violence. The fact that civil parties are included in testimony – a practice unique to the tribunal among international courts – also played a role in voicing and prosecuting crimes against women. Sixty percent of civil parties were women, a fact that contributed to bringing these testimonies to the centre of the court’s second case.
William Smith, a deputy co-prosecutor at the court, “wholeheartedly agreed” that the role of the civil parties and their lawyers was critical in ensuring all crimes were addressed. However, he said it’s incorrect to assume the court only began investigating these crimes in recent years. Evidence collected between 2007 and 2010 in relation to forced marriage and rape, he wrote, was only heard in the second trial beginning in 2015.
Still, rape as a crime against humanity remained the only gender-based form of violence officially recognised by the court. There was also no requirement to appoint staff with expertise in gender issues, and just 17 percent of the court’s staff in 2012 were women.
“[The] court was occupied with men and they did not have any special team to investigate gender crimes,” said Kasumi Nakagawa, a gender researcher who testified at the court as an expert witness. All of the crimes dealt with at the ECCC had different impacts on men and women, creating a huge need to investigate the “gendered dimensions” of the crimes, she added.
Maria Elander, a researcher whose recent work focuses on forced marriage in the ECCC, noted that focusing on marriage alone might be insufficient. “One thing I worry about is that in light of how difficult putting [sexual and gender-based violence] on the agenda has been, too much hope has now been placed on the charge of the regulation of marriage in case 002,” Elander wrote in an email, referring to the second case against Samphan and Chea.
“This charge cannot account for all [sexual and gender-based violence] but it sort of has in case 002. As for the other cases, we will have to see whether they proceed.”