We wish to clarify several points raised in a letter to the editor by ECCC international co-prosecutor Andrew Cayley, QC that was published in the Post on June 1.
1. Since the beginning of the preliminary investigations by co-prosecutors, subsequently continued by the co-investigating judges tasked with the introductory submission, there has been a clear failure to prioritise sexual crimes committed by the Khmer Rouge regime.
2. The only reference in the first introductory submission to sexual crimes was a mention in a mapping report by the Documentation Centre of Cambodia of rapes committed against women who had been marked out to be killed at Prey Trapeang Ampil.
It remained unclear, however, whether these rapes were committed within the temporal jurisiction of the court, and the introductory submission does not address the widespread nature of these rapes or other sexual acts.
3. It may be true, but is not to our knowledge, as Cayley asserts, that the office of the co-prosecutors “determined that rape and other crimes of sexual violence were perpetrated on a widespread basis during the Democratic Kampuchea regime”.
But it is surprising that, if a preliminary finding was made by the office of the co-prosecutors that rapes and sexual violence were widely committed under the Khmer Rouge regime, these facts have not ultimately been included in the prosecution’s introductory submission.
4. The fact that Kaing Guek Eav was prosecuted for rape is based solely on his admission during the Case 001 proceedings of one instance of rape.
This rape was not known about until Kaing Guek Eav mentioned it while being interviewed by the co-investigating judges.
5. Other instances of rape that were mentioned by other witnesses in Case 001 were not thoroughly investigated and, to our knowledge, there is no evidence on the case file of witnesses in Case 002 being specifically interviewed about sexual crimes outside the context of forced marriages.
6. Although the office of the co-prosecutors mentioned in its final submission some instances of rape outside the context of forced marriage, the co-investigating judges were not tasked by the office of the prosecutors with the investigation of “widespread rapes”. Consequently, they were not investigated.
Investigations by the co-investigating judges or the prosecutors revealed only some cases of sexual violence.
7. The inclusion of forced marriages in the charges resulted only from civil-party lawyers urging the investigating bodies to draw up a supplementary submission addressing these charges.
The charges themselves were not included in the original Introductory submission, and without the efforts of civil parties these crimes would not have been included in the indictment.
8. It is noteworthy that the submission of the co-prosecutors (E99) on the characterisation of rape contained only a single paragraph requesting the inclusion of sexual violence outside the context of forced marriage.
9. Although Andrew Cayley states, “The ECCC cannot meet all the needs of these victims. As Margot Wallström advocates, there must be serious consideration of alternative mechanisms to acknowledge crimes of sexual violence”, he does not question why there are no charges of sexual violence included in the Indictment outside the context of forced marriages.
10. It is evident that, since the beginning of the cases before the ECCC, sexual violence was not part of the prosecutorial strategy. This has been confirmed by Cayley’s predecessor, Robert Petit.
11. We are wondering whether cases 003 and 004 contain any investigations into, or charges of, sexual crimes. We do not have access to the case files, despite repeated requests to the co-investigating judges.
If the introductory submissions in cases 003 and 004 do not contain sexual crimes, we would recommend that the office of the co-prosecutors submit supplementary investigative requests to the office of the co-investigating judges.
Sexual violence and sexual crimes can be successfully prosecuted only when there is a prosecutorial case strategy and positive willingness from the leadership of the office of the prosecution to include such crimes at the early investigative stages – including provision of proper investigative techniques for such specificity of crimes.
This includes providing gender-balanced investigators and gender-competent staff in the investigatorial processes before any charges can be successfully pursued.
Future prosecutions in any international jurisdiction should include investigation of gender-based crimes at an early stage, pursuant to a high-level prosecutorial strategy, to ensure the victims of such violence are not effectively excluded.
National counsel for civil parties
International counsel for civil parties
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