In response to the Phnom Penh Post article Proof of Central Policy on Marriage Not Clear: Expert, dated September 15, a few points of query.
Can this be the prosecution’s only expert witness to appear before the court for the segment on forced marriage and rape during the Communist Party of Kampuchea (CPK) rule?
The expert who appeared last week has never been published in a peer-reviewed academic outlet. Her central testimony rested upon a 51-page self-published pamphlet of some 50 to 100 interviews (not thousands, as is widely reported). Under questioning by the defence, she readily shared that she has never undertaken a thorough scholarly literature review on the topic on which she was testifying, nor has she performed a systematic appraisal of her own qualitative data to formulate a grounded, rigorous theory.
The expert freely disclosed she has never examined CPK policy and therefore could not answer questions in this regard. She was honest and open about her limitations on the stand. Yet, her limitations led her to make numerous contradictory, erroneous and misleading claims. It’s fair to ask why the prosecution selected this expert – unread, unpublished, untested – to appear as its expert witness.
An expert is usually selected to provide the larger, analytical picture of an issue. He or she, therefore, can be expected to be well-versed on the body of scholarship in the specialised field. Such a knowledge base would have allowed an expert to call upon documentation and analysis that establishes a consistent pattern across Cambodia – and therefore evidence of a national policy – of the core elements of forced marriage during the period – the mass gatherings, the similar vows, the conjugal houses, the spies.
An expert also could be expected to be somewhat familiar with CPK policy, at least as related to sexual violations. Such an expert would then have been able to point to the CPK’s sixth code of the written 12 Codes of Conduct, which clearly prohibited extramarital sexual relations on the grounds that Angkar henceforth would arrange and authorise all marriages so that, by implication, sexual (ie, reproductive) activity could serve the aims of the revolution.
In providing a gendered analysis of CPK policy, coupled with a sound foundation in the academic scholarship, an expert might thus have opened new and important legal discussion, credibly linking the accused to a raft of violations: of husbands being forced to rape wives; of rape being used as punishment for reluctant wives; of pregnancies resulting from forced marriages and rapes; and even to the occurrence of rapes outside of forced marriage scenarios.
In short, an expert could have provided analysis that credibly links forced marriage and rape under the CPK to other alleged crimes on trial as part of a system that facilitated mass atrocity. He or she also might have credibly related what happened in Cambodia to global patterns of conflict-related sexual violence, in the past and today, underscoring the urgency of the adjudications of the Extraordinary Chambers in the Courts of Cambodia (ECCC) in a world where armed groups such as ISIS exist.
So, is this as good as it gets for the prosecution of CPK-related forced marriage and rape? Those who have followed closely know that forced marriage as a crime came late to the ECCC and was added to investigations only after concerted advocacy by civil parties and their lawyers.
That entailed countering the long-held view, expressed by historian Michael Vickery in this very paper in 2005, that women had never been safer from sexual violence than under Khmer Rouge rule – despite CPK forced marriages already widely established as historical fact.
Yet, in 2016, when it is finally time to prosecute forced marriages as a crime, this segment of Case 002-02 appears more like an afterthought than a rigorous prosecutorial strategy.
For example, when the co-prosecutors submitted documents into evidence a few weeks ago, the most recent was a six-year-old publication, neglecting a rash of new research and analysis since 2010 related to Cambodia and global conflict-related sexual violence.
Elizabeth Becker’s 1986 book When the War Was Over – among the first histories to take forced marriages and rapes seriously – was admitted. Yet, when Becker appeared before the court last year, not a single question was posed, by any of the lawyers, related to forced marriage – she was invited as an expert on internal purges as related to the Sino-Soviet split, a topic she repeatedly mentioned was at the margins of her expertise.
One couldn’t be blamed for wondering whether forced marriage is indeed the topic of focus for this segment of Case 002-02. In the first weeks of testimony, the prosecution has repeatedly turned its focus away from that crime to pose questions to civil parties on security centres and internal purges.
Some survivors who appeared on the stand – mostly the women – were not asked a single question by the international co-prosecutor related to forced marriage. I appreciate the sensitivity that a male prosecutor may feel in questioning a female sexual violence survivor, but the impression is that the crime is not being fully prosecuted by the prosecution.
When a male civil party took the stand two weeks ago, he made headlines for his poignant story of lost love due to his forced marriage; the next day, he was questioned for hours about his knowledge related to purges. (Curiously, he was never asked, as have the female civil parties, to provide a detailed account of his marital sexual relations.)
For this week and most of next, the segment on forced marriage has been pre-empted by testimony related to the S-21 security centre and purges. Some civil parties may be squeezed in relation to forced marriage in between other testimony – a pattern that has played out for the whole of Case 002-02, resulting in an incoherent presentation of the crime.
Frankly, is this good enough?
Certainly the continual reprisal of prisons and purges is part of a legal strategy, as well as important in and of itself. Yet, the attention the topic receives in the Trial Chamber is hardly reflective of the common suffering of civilian victims and survivors. Nor does it do justice to the intergenerational impacts, still felt today, of the crime of mass forced marriages and related sexual violations.
Most importantly, it fails to honour the courage of civil parties who reveal harrowing and intimate details of their forced married lives so that the crime can be fairly and fully adjudicated.
In 2012, the Special Representative to the Secretary General on Conflict-Related Sexual Violence called on the ECCC and the Cambodian government to use its full resources to meaningfully prosecute the full scope of gender-based crimes during the CPK period.
Today’s long-awaited segment on forced marriage falls short of that call: a preoccupied prosecution; a collection of outdated research; a severely limited expert making unsubstantiated claims; questions to actual experts left unasked; a sexist double-standard in questioning and probing the full scope of the forced marriage experience for men as well as women.
If this is as good as it gets – at a time when the ECCC could potentially be creating precedent-setting jurisprudence – it’s hardly good enough.
Theresa de Langis, PhD, is a research-practitioner on women, peace and security issues in the Asia-Pacific region, including sexual violence under the Khmer Rouge regime, and an associate professor of global affairs at American University of Phnom Penh.