Olga Cowings and
Gavin Cowings
The Khmer Rouge regime is another black mark on
humanity’s history, among other tragic conflicts such as those in Yugoslavia
and Rwanda, which saw genocide and other crimes against humanity committed that
have since been tried in international criminal tribunals. In Cambodia, roughly
two million people, or a quarter of the entire population, died by means of
torture, execution, disease, famine and exhaustion (Tyner, 2015) under the
leadership of the Khmer Rouge who sought to return the country to an agrarian
utopian society (Dicklitch & Malik, 2010).
This vision required the adoption of disastrous, draconian leadership
and abandonment of vital evolutionary components of human history such as medicine,
education and law through “the extermination of the elite and
educated, a complete evacuation of urban centres, the incineration of books,
libraries, banks, places of worship, and university facilities, the execution
of ethnic minorities; and the prohibition of religious practice and education.”
(Van Schaack, 1997).
The legacy of the Khmer Rouge has been far-reaching
and lives on in many aspects of Cambodian society. Land disputes resulting in
forced eviction are a common and controversial problem given the issues
regarding ownership of private land prior to the Khmer Rouge regime, who put an
end to private land ownership (CBRE Cambodia, 2012). A more grim example is the
legacy of the four to six million land mines that were laid during three
decades of conflict, with about 63,000 civilians and soldiers involved in land
mine accidents, resulting in one of the highest amputee ratios in the world
(Ruffins, 2010). Furthermore, the effects of an abolished education system can
be derived from census data; those of school age in the 1970s have lower
educational attainment than younger generations (de Walque, 2006).
As the education system collapsed, so did the
population of professionals and intellectuals, who were virtually exterminated
(Ghouse, Coughlan & Smith, 2012), leaving ten qualified lawyers in the
country when the Khmer Rouge fell (AI, 2002). It was therefore hopeful that the
Extraordinary Chambers in the Courts of Cambodia (ECCC), established in 2003,
would become a model court of the domestic legal system and leave a legacy
bolstering the rule of law in Cambodia while building the national judiciary’s
capacity (ICTJ, 2009). Former UN Secretary-General Kofi Annan stated that the
ECCC should have “considerable legacy value, inasmuch as it will result in the
transfer of skills and know-how to Cambodian court personnel”(UNAKRT, 2003).
Although the extent of the ECCC’s legacy is debatable
given various obstacles including corruption and political interference (Ghouse,
Coughlan & Smith, 2012), it has successfully tried and convicted members of
the top leadership of the Khmer Rouge of war crimes in case 001 and 002/01
(ECCC, 2016, “Case Load”). Additional allegations of crimes against humanity
were brought in the closing order of case 002/01 that would form the basis of
case 002/02, including forced marriage and rape (ECCC, 2016, “Case 002”), both
instances of gender-based violence (GBV) and sexualized crime (TPO, 2015). As
mentioned by several authors of the Khmer Rouge period, sexualized and gender
based violence included the mutilation of sexual organs, the exchange of sex
for food, rape of males and females, sexual assaults, fetuses taken from pregnant women and
virginity controls (TPO, 2015). With an aim to increase the population and
control sexuality, the forced marriage policy was a cornerstone of GBV and
sexualized violence under the Khmer Rouge (TPO, 2015).
Civil Parties, who have the right to submit
investigative requests to the Co-Investigating Judges, largely used this
mechanism in case 002/01 to have sexualized violence investigated (TPO,
2015). Nearly 4000 victims participated as Civil Parties, of which 70% were
female (Laidlaw, 2014). Females, and especially women aged 15-29 in 1976 were
most likely to survive the genocide (de Walque, 2006) and consequently form a
majority of the Civil Parties participating in the tribunal, which are largely
supported by non-governmental organizations (NGOs) in Cambodia. Empowered by
local civil society, GBV victims are leaving a powerful legacy of the Khmer
Rouge period through an internationalized judicial setting by bringing justice
to other victims and contributing to an international standard of classifying GBV
and sexualized crimes as crimes against humanity.
The tribunal on the former Yugoslavia was the first to
give distinct attention to gender-based crimes, reflecting the work of feminist
journalists detailing accounts of rape, forced prostitution and forced
pregnancy by women’s support groups and women’s projects at human rights
organizations (Anderson, 2005). Unlike
victims participating in the Tribunal on the former Yugoslavia, victims of
sexualized and gender-based violence under the Khmer Rouge are older women who
are, without support from civil society, reluctant to share their stories and
experiences. Ms. Net Savoen is such a victim, and shared her story in hopes of making
the next generation know more about such crimes (GBVKR, 2016).
“In 1978, after
the harvesting season, she was moved to Pursat province. She is the only
survivor of around 30 women who were taken to be killed by the Khmer Rouge and
who were raped before being killed. This happened in the cooperative of Prek
Chig in Pursat province. At around six in the evening when they were taking a
rest from carrying earth, Khmer Rouge chlob selected 30 strongly built women
who were told they had to go carry salt. There were around ten Khmer Rouge
chlob who led them into a forest. When they were close to the forest, the chlob
made them sit down and tied them up immediately. After they tied them up, they
continued to lead them into the forest. On the road, some realized that they
were taken to be killed and refused to follow them but they were beaten.
When they arrived at the execution site in the forest,
they started to rape the women and beat them to death with axes and finally
they cut their throats. The pretty women were raped by them as they wished.
Some women were raped by three to four men before they were killed. She could
clearly see everything that happened because it was full moon. They started to
kill and rape the women from the time the moon was rising at sunset until the
moon was fully up in the middle of the sky. Then it was her turn. She was the
last person among all who was standing and waiting for her turn until her whole
body was numb because she did not know what to do.
She was raped by two people with her hands tied up.
After that she did not know what else they did to her. When she regained
consciousness, the sun was already rising. She had no clothes on her and was
full of blood because the perpetrators hit her three times on the middle of the
head with an axe. Barely alive, she looked for clothes near the dead bodies to
cover herself. She saw dead bodies around her and looked around for some time
to see if there were any survivors but did not see any. She tried to walk back
to the village but she was not sure about the direction. She followed the sound
of the chickens. When she arrived at the house of her mother her mother did not
let her stay because she knew that sooner or later the murderers would know
about this and then would come to take her again to be killed and they could
take the family or the people close to her. Her mother told her to run away.
She started walking without knowing the direction. When she arrived in a
village the people there helped her to recover from her injuries. Around 15
days later, the Vietnamese troops marched in.
As for the perpetrators, she did not know them because
she was a new person. The perpetrators were very young, around 17 to 18 years
old and most of them were chlob. Until today, she does not know where they live
and what happened to them.
The torture committed against her was severe and hard
to endure. But she also feels very lucky to have survived until today. Now she
can control herself much better. At the beginning, every night of the full moon
she felt as if she was still sick and always remembered the story. Sometimes
she would walk to other houses in the village or walk around in her house.
Through the psychological support of the organization CDP, she feels much
better. She has told this story to other people before. When she spoke about
what happened to her she felt even more relieved. To preserve the memory, she
is willing to tell the story to others if they want to know the truth. She is
telling this story to make the next generation understand about such crimes.”
Unfortunately, Ms. Net Savoen is hardly an exception
to the personal experience of victims of war crimes under the Khmer Rouge. The
Transcultural Psychological Organization published a study in 2015 detailing
the findings of a survey of 222 respondents who were Civil Parties to Case 002
(TPO, 2015). 30.6% reported to have witnessed rape, while 4.6% reported
to having experienced it outside of forced marriage. Several confirmed that
rape was committed before victims were executed, and a significant majority
pointed to Khmer Rouge cadres as the perpetrators of rape. A quarter said to have witnessed or directly
experienced (8.3%) sexual humiliation and abuse including forced nudity and
unwelcome sexual contact; 10% of respondents reported witnessing an abortion,
which were made dangerous and painful by a lack of medical care and often
resulted in death. 68.9% of the victims of forced marriage revealed that they
still worry about others’ opinion of themselves in light of their experience of
sexualized violence.
Forced marriage was a common, impersonal practice
under the Khmer Rouge; marriage ceremonies involved 3-160 couples, who usually
had no choice in their partner, and many of whom had never met each other
before; refusal to marry and later consummate often resulted in imprisonment,
torture or death (CDP, 2013). This policy stripped Cambodians of their
fundamental right to choice and consent, and nearly a quarter of forced
marriages are reported to have involved spousal abuse (TPO, 2014). Even after
the fall of the Khmer Rouge, cultural and circumstantial barriers prevented
divorce and couples remained in ill-matched unions until the end of their lives
(CDP, 2013).
The TPO found that 60% of respondents said that they
had never spoken about their experiences (TPO, 2015). The ECCC and local civil
society play a crucial role in filling the knowledge gap regarding GBV under
the Khmer Rouge by providing outreach and support to Civil Parties; 95.4% of
respondents expressed that participating in the ECCC has had a positive impact
on them and their families, emphasizing the importance of justice and the
importance of being part of a Civil Party as a mechanism for pain and the
reduction of anger. 99.1% agreed that participating as Civil Parties gave them
a sense of justice.
The ECCC’s model is premised on the notion that in
situ proceedings with strong national participation help connect survivors to
the criminal process (UNSC, 2004); this is the first internationalized criminal
court to include victims as Civil Parties in the proceedings (Ciorciari &
Hiendel, 2014). Its unique opportunities for direct survivor participation and
ability to connect with victims and the general public have made up one of its
greatest achievements; victims can observe or participate in the proceeding while
engaging in truth-telling (Ciorciari & Hiendel, 2014). In 2010, Judge
Silvia Cartwright explained that non-judicial measures (such as transitional
justice) “will be a major legacy of this Tribunal”, and that the ECCC
considers the involvement of victims at trial of great importance (Cartwright,
2010). Civil Parties are able to question the accused, witnesses, other Civil
Parties and experts through their lawyers at the ECCC;
they can submit
their own witness, Civil Party or expert lists to the Trial Chamber to take a
stand and ensure their perspective is voiced (TPO, 2015).
The sense of transitional justice taking root in
Cambodia is in large part due to the efforts of local civil society as a result
of monetary and human resource constraints at the ECCC. For example, the ECCC
set a limited initial budget for outreach activities, and it was assumed that
the court would lean on local civil society to fill the gap in outreach to
victims and survivors (Ciorciari & Hiendel, 2014). Between the start of
case 001 in 2009 and the end in 2011, 111,543 people visited the court to view
live proceedings or as part of a study tour (ECCC, 2012), with over 83% of them
Cambodians who used the ECCC’s free transportation service, organized in
partnership with civil society organizations (Ciorciari & Hiendel, 2014). Likewise,
the initial budget for the Victim Support Section was limited, and a large
majority of victims who chose to participate in the ECCC learned their rights
through NGOs, which serve as their primary connection to the court (Phuong et
al., 2011). NGOs, such as the Cambodian Defenders Project, which provides free
legal services to Cambodians wishing to register as Civil Parties, have been
prolific in this area, undertaking ambitious outreach and capacity-building programmers
(Ghouse, Coughlan & Smith, 2012).
Despite the largely unlimited scope of the legal right
to participation by Civil Parties at the ECCC, their rights were restrained in
case 001, where the Trial Chamber determined that the role of the Civil Parties
was foremost to seek repatriations (Trial Chamber, 2009). Changes to victim
participation mechanisms since case 001 means that victims are collectively
rather than individually represented at the Tribunal (UNSC, 2004), reducing the
chance that their personal account will be heard before the court. While
case 002/02 includes allegations of a policy of forced marriage and rape, the
Trial Chamber omitted rape outside of forced marriage, claiming that the
accused cannot be liable as this was not a policy of the Khmer Rouge leaders
and sexual violence was in fact prohibited
(TPO, 2015). This
top-down approach is a significant short-coming of the ECCC, presuming that the
responsibility for crimes rests in the top leadership of the Khmer Rouge and
not among the lower-level officers
(Anderson,
2005).
Despite the flaws of victim participation mechanisms
at the ECCC, limiting the scope of allegations against the accused in case
002/02 and representing Civil Parties collectively will ensure that the trial
is more efficient. This is of paramount importance given the advanced age and
state of fragile health of the accused, where proceedings were dropped against
one in case 002/01 after his death in March 2013 and another accused found
unfit to stand trial due to dementia
(Laidlaw, 2014).
As Surya P Subedi, the UN Human Rights Council ‘s Independent Expert on
Cambodia, stated following these events in 2013, “We know from other instances
of accountability processes around the world that, although a final judgment
was not reached, the mere fact of seeing Ieng Sary forced to face his accusers
will have brought some degree of comfort to the surviving victims of the Khmer
Rouge, the families of the victims, and the whole of Cambodian society that
continues to suffer from the impact of the Khmer Rouge to this day” (Laidlaw, 2014). With the parallel progressing age and
deteriorating health of Civil Parties, the effort of civil society to represent
Civil Parties at the ECCC has been crucial to ensuring that their ghosts will
continue to justify a legacy of sexualized and gender based violence in
conflict as a crime against humanity long after case 002/02 comes to an end.
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