October 19, 2010 - 4:14PM
AFP
Prosecutors at Cambodia's UN-backed war crimes court on Tuesday demanded an increased sentence of life imprisonment for a former Khmer Rouge prison chief who was jailed for 30 years in July.
Kaing Guek Eav, better known as Duch, was convicted of war crimes and crimes against humanity for overseeing the mass murder of 15,000 men, women and children at Tuol Sleng prison in the late 1970s. Duch was initially handed 35 years, but the court reduced the sentence on the grounds that he had been detained illegally for years before the UN-backed tribunal was established.
"We are asking for life imprisonment, to be reduced for mitigating purposes to 45 years," Anees Ahmed, senior assistant co-prosecutor, told AFP after his team submitted their appeal document. It is to compensate for the period of unlawful detention that the co-prosecutors are asking that a life sentence be reduced to 45 years with no parole. "The co-prosecutors submit that a sentence of 35 years for crimes of this magnitude is plainly unjust," the appeal document read.
The co-prosecutors are also seeking additional convictions "for the crimes against humanity of extermination, enslavement, imprisonment, torture, rape, persecution on political grounds, and other inhumane acts", the document said. Led by "Brother Number One" Pol Pot, the Khmer Rouge was responsible for one of the worst horrors of the 20th century, wiping out nearly a quarter of Cambodia's population through starvation, overwork and executions.
© 2010 AFP
(ECCC FILE): Prosecution's Appeal Against the Duch Judgement: http://www.eccc.gov.kh/english/cabinet/courtDoc/745/F10_EN.PDF
Searching for the Truth.
MEMORY & JUSTICE
“...a society cannot know itself if it does not have an accurate memory of its own history.”
Youk Chhang, Director
Documentation Center of Cambodia
66 Sihanouk Blvd.,
Phnom Penh, Cambodia
Sunday, October 24, 2010
Democratic Kampuchea History from the Villages
by Dy Khamboly
At a Documentation Center of Cambodia (DC-Cam) public education forum attended by teachers, students and parents, Oam Rim, age 70, was eager to share her experiences during the Democratic Kampuchea (DK) period (1975-1979). Asked if she believes that mass atrocities occurred during the DK regime, Rim said, “Absolutely, because my husband and four children died at that time.” Then she told the participants about her experience—one of many stories of village life that should be documented and used to teach Khmer Rouge (KR) history in Cambodia.
Rim, a disabled widower, lives with her daughter in Wat Phnom village, Kampaeng commune, Kiri Vong district, Takeo province. Her first husband was taken for execution immediately after the KR victory, while she and her four children were evacuated to Romlech commune, Bakan district, Pursat province. In 1976, her two oldest sons were taken to join the army on the front lines near the border and have not been seen since. Her remaining two children, one son and one daughter, continued to live with her in Romlech, working in different units. Then they both fell ill from malnutrition at the same time and died after staying at a KR hospital for one week. Their bodies were carried by cart to the grave as Rim stood by and watched, unable to show any emotion for fear being killed.
After these tragedies, Rim was like a body without soul. Due to her disability, she was allowed to stay in the cooperative and work on light tasks such as raising pigs. Living in the cooperative allowed her to see many crimes. Many Khmer Krom and ethnic Cham Muslim were taken for execution every day. One day Rim saw the hundreds of dead bodies in a pit close to the cooperative. She saw the two killers every day but never dared to look at their faces. The two also raped and executed beautiful young girls evacuated from the Eastern Zone. In late 1977, Rim was forced to remarry in a mass ceremony of ten couples. Although she did not agree with the marriage, she had a daughter with her second husband and lived with him until he died in 2005.
Each village in Cambodia has similar stories, all of which should be documented, preserved and discussed with students. In 2009, Khmer Rouge history was added to the secondary school curriculum and in 2010 it was added to the list of required university courses. My textbook, A History of Democratic Kampuchea (1975-1979) is now mandatory reading throughout the country. But that alone is inadequate. Survivors’ stories are the raw materials from which KR history will continue to be written and understood by future generations and must also be shared in the classroom.
For almost thirty years, the content of the KR history was dominated by politics and politicization. As a consequence, the younger and older generations have not discussed, much less reached a common understanding of, KR history. Documenting and discussing survivors’ stories prevents political distortions of history. History is no longer a political stand about political regimes and senior leaders, but is the concrete experiences of survivors expressed in their own words.
Hearing stories about what happened in villages like their own will encourage students to connect the content in the KR textbook to their families’ lives. Students will be encouraged to interview their own families—both victims and perpetrators—and uncover memories that will otherwise fade with time. Discussion and debate of village history in the classroom will lead common ground on which understanding and local reconciliation can grow.
Documenting and sharing stories from the villages will help people find a larger truth than can be found in any textbook: the truth of what happened to ordinary individuals throughout the country. These memories must be preserved and shared or the younger generation will never reflect on how their society today came to be. These memories, however horrible, are also part of Cambodia’s cultural heritage. Rim said, “I want my grandchildren and other young Cambodians to learn about killing, rape and other crimes that I witnessed when I was living in Romlech during the KR regime.
Dy Khamboly is the author of 'A History of Democratic Kampuchea (1975-1979)' and Team Leader of Genocide Education project at the Documentation Center of Cambodia.
For details on the project, visit: http://www.dccam.org/Projects/Genocide/Genocide_Education_Public_Forum.htm
Searching for the Truth.
MEMORY & JUSTICE
“...a society cannot know itself if it does not have an accurate memory of its own history.”
Youk Chhang, Director
Documentation Center of Cambodia
66 Sihanouk Blvd.,
Phnom Penh, Cambodia
At a Documentation Center of Cambodia (DC-Cam) public education forum attended by teachers, students and parents, Oam Rim, age 70, was eager to share her experiences during the Democratic Kampuchea (DK) period (1975-1979). Asked if she believes that mass atrocities occurred during the DK regime, Rim said, “Absolutely, because my husband and four children died at that time.” Then she told the participants about her experience—one of many stories of village life that should be documented and used to teach Khmer Rouge (KR) history in Cambodia.
Rim, a disabled widower, lives with her daughter in Wat Phnom village, Kampaeng commune, Kiri Vong district, Takeo province. Her first husband was taken for execution immediately after the KR victory, while she and her four children were evacuated to Romlech commune, Bakan district, Pursat province. In 1976, her two oldest sons were taken to join the army on the front lines near the border and have not been seen since. Her remaining two children, one son and one daughter, continued to live with her in Romlech, working in different units. Then they both fell ill from malnutrition at the same time and died after staying at a KR hospital for one week. Their bodies were carried by cart to the grave as Rim stood by and watched, unable to show any emotion for fear being killed.
After these tragedies, Rim was like a body without soul. Due to her disability, she was allowed to stay in the cooperative and work on light tasks such as raising pigs. Living in the cooperative allowed her to see many crimes. Many Khmer Krom and ethnic Cham Muslim were taken for execution every day. One day Rim saw the hundreds of dead bodies in a pit close to the cooperative. She saw the two killers every day but never dared to look at their faces. The two also raped and executed beautiful young girls evacuated from the Eastern Zone. In late 1977, Rim was forced to remarry in a mass ceremony of ten couples. Although she did not agree with the marriage, she had a daughter with her second husband and lived with him until he died in 2005.
Each village in Cambodia has similar stories, all of which should be documented, preserved and discussed with students. In 2009, Khmer Rouge history was added to the secondary school curriculum and in 2010 it was added to the list of required university courses. My textbook, A History of Democratic Kampuchea (1975-1979) is now mandatory reading throughout the country. But that alone is inadequate. Survivors’ stories are the raw materials from which KR history will continue to be written and understood by future generations and must also be shared in the classroom.
For almost thirty years, the content of the KR history was dominated by politics and politicization. As a consequence, the younger and older generations have not discussed, much less reached a common understanding of, KR history. Documenting and discussing survivors’ stories prevents political distortions of history. History is no longer a political stand about political regimes and senior leaders, but is the concrete experiences of survivors expressed in their own words.
Hearing stories about what happened in villages like their own will encourage students to connect the content in the KR textbook to their families’ lives. Students will be encouraged to interview their own families—both victims and perpetrators—and uncover memories that will otherwise fade with time. Discussion and debate of village history in the classroom will lead common ground on which understanding and local reconciliation can grow.
Documenting and sharing stories from the villages will help people find a larger truth than can be found in any textbook: the truth of what happened to ordinary individuals throughout the country. These memories must be preserved and shared or the younger generation will never reflect on how their society today came to be. These memories, however horrible, are also part of Cambodia’s cultural heritage. Rim said, “I want my grandchildren and other young Cambodians to learn about killing, rape and other crimes that I witnessed when I was living in Romlech during the KR regime.
Dy Khamboly is the author of 'A History of Democratic Kampuchea (1975-1979)' and Team Leader of Genocide Education project at the Documentation Center of Cambodia.
For details on the project, visit: http://www.dccam.org/Projects/Genocide/Genocide_Education_Public_Forum.htm
Searching for the Truth.
MEMORY & JUSTICE
“...a society cannot know itself if it does not have an accurate memory of its own history.”
Youk Chhang, Director
Documentation Center of Cambodia
66 Sihanouk Blvd.,
Phnom Penh, Cambodia
Thursday, October 14, 2010
Cambodia's Khmer Rouge tribunal moves prisoners, fearing flood at jail
Associated Press
10/13/10 11:21 AM PDT PHNOM PENH, CAMBODIA — Cambodia's U.N.-backed genocide tribunal has moved its five Khmer Rouge prisoners out of the custom-built jail in Phnom Penh where they have been held because it is at risk of flooding after heavy rains this week, a spokesman said Wednesday. Tribunal spokesman Lars Olsen did not disclose where they were moved to Tuesday. The five are among the former leaders of ultra-communist regime during whose 1975-79 rule an estimated 1.7 million people were executed or died from overwork, disease and malnutrition. In July, the regime's chief jailer, Kaing Guek Eav — also known as Duch — was sentenced to 19 years in prison for war crimes, crimes against humanity, torture and murder. Duch, 67, was the first defendant to be tried. He supervised the notorious S-21 prison where as many as 16,000 people were tortured before being executed. The other four are expected to be tried starting in the middle of next year. They are Nuon Chea, 84, the group's ideologist; former head of state Khieu Samphan, 79; former Foreign Minister Ieng Sary, and his wife Ieng Thirith, ex-minister for social affairs, both in their 80s.
The five have been detained since 2007 and aside from trips to the nearby court, have gone virtually nowhere else except for occasional hospital visits.
http://www.dap-news.com/en/news/1691-un-secretary-general-to-see-pm-hun-sen-and-khmer-rouge-tribunal-.html
www.dap-news.com/en .Thursday, Oct 14th
UN Secretary General to See PM Hun Sen, and Khmer Rouge Tribunal
Wednesday, 13 October 2010 09:43 DAP NEWS / VIBOL
CAMBODIA, PHNOM PENH, Oct 13, 2010-The UN secretary General Mr. Ban Kim Moon will lead a high delegation to pay an official visit to Cambodia from 26- 28 October, 2010, the statement from foreign ministry of Cambodia said on Wednesday. It added Mr. Ban will be received in Royal audience by King Norodom Sihamoni. And Mr Ban also will hold an official talk with PM Hun Sen and during his visit; Mr. Ban also will visit the UN- Cambodia tribunal and Khmer Soviet friendship Hospital in Phnom Penh. This is the second UN secretary general to visit Cambodia in the UN history. United Nations Secretary-General Boutros Boutros-Ghali visited Cambodia while UNTAC helps organize general election in Cambodian in 1991-1993. Previously, PM Hun Sen revealed that he will be likely to ask Mr. Ban to be mediator for solving the border issues between Cambodia and Thailand. Mr. Ban is former South Korean Foreign Minister who used to visit Cambodia in 2008 while he seat as foreign minister. UN and Cambodia is strengthening fruitful cooperation and UN AIDS Committee just handed over the award for Cambodia in fighting against AIDS. Thanked UN for helping Cambodia both development and peace since 1990s. .
Copyright © 2010 DAP-NEWS. All Rights Reserved.
Searching for the Truth.
MEMORY & JUSTICE
“...a society cannot know itself if it does not have an accurate memory of its own history.”
Youk Chhang, Director
Documentation Center of Cambodia
66 Sihanouk Blvd.,
Phnom Penh, Cambodia
10/13/10 11:21 AM PDT PHNOM PENH, CAMBODIA — Cambodia's U.N.-backed genocide tribunal has moved its five Khmer Rouge prisoners out of the custom-built jail in Phnom Penh where they have been held because it is at risk of flooding after heavy rains this week, a spokesman said Wednesday. Tribunal spokesman Lars Olsen did not disclose where they were moved to Tuesday. The five are among the former leaders of ultra-communist regime during whose 1975-79 rule an estimated 1.7 million people were executed or died from overwork, disease and malnutrition. In July, the regime's chief jailer, Kaing Guek Eav — also known as Duch — was sentenced to 19 years in prison for war crimes, crimes against humanity, torture and murder. Duch, 67, was the first defendant to be tried. He supervised the notorious S-21 prison where as many as 16,000 people were tortured before being executed. The other four are expected to be tried starting in the middle of next year. They are Nuon Chea, 84, the group's ideologist; former head of state Khieu Samphan, 79; former Foreign Minister Ieng Sary, and his wife Ieng Thirith, ex-minister for social affairs, both in their 80s.
The five have been detained since 2007 and aside from trips to the nearby court, have gone virtually nowhere else except for occasional hospital visits.
http://www.dap-news.com/en/news/1691-un-secretary-general-to-see-pm-hun-sen-and-khmer-rouge-tribunal-.html
www.dap-news.com/en .Thursday, Oct 14th
UN Secretary General to See PM Hun Sen, and Khmer Rouge Tribunal
Wednesday, 13 October 2010 09:43 DAP NEWS / VIBOL
CAMBODIA, PHNOM PENH, Oct 13, 2010-The UN secretary General Mr. Ban Kim Moon will lead a high delegation to pay an official visit to Cambodia from 26- 28 October, 2010, the statement from foreign ministry of Cambodia said on Wednesday. It added Mr. Ban will be received in Royal audience by King Norodom Sihamoni. And Mr Ban also will hold an official talk with PM Hun Sen and during his visit; Mr. Ban also will visit the UN- Cambodia tribunal and Khmer Soviet friendship Hospital in Phnom Penh. This is the second UN secretary general to visit Cambodia in the UN history. United Nations Secretary-General Boutros Boutros-Ghali visited Cambodia while UNTAC helps organize general election in Cambodian in 1991-1993. Previously, PM Hun Sen revealed that he will be likely to ask Mr. Ban to be mediator for solving the border issues between Cambodia and Thailand. Mr. Ban is former South Korean Foreign Minister who used to visit Cambodia in 2008 while he seat as foreign minister. UN and Cambodia is strengthening fruitful cooperation and UN AIDS Committee just handed over the award for Cambodia in fighting against AIDS. Thanked UN for helping Cambodia both development and peace since 1990s. .
Copyright © 2010 DAP-NEWS. All Rights Reserved.
Searching for the Truth.
MEMORY & JUSTICE
“...a society cannot know itself if it does not have an accurate memory of its own history.”
Youk Chhang, Director
Documentation Center of Cambodia
66 Sihanouk Blvd.,
Phnom Penh, Cambodia
The Devil of Humanity: Can the Khmer Rouge Leaders Be Forgiven?
by Kok-Thay Eng
I am delighted that on September 15, the Extraordinary Chambers in the Courts of Cambodia (ECCC) announced that the four remaining senior Khmer Rouge leaders currently in custody—Nuon Chea, Ieng Sary, Khieu Samphan and Ieng Thirith— were indicted for crimes against humanity and genocide, among other offenses. I hope that they will be tried fairly and punished justly according to the law. What they did to the people of Cambodia was beyond hell on earth. They were the devil of humanity. But can they be forgiven by the people? The four accused invited monks to their cells to preside over an offering ceremony during the Pchum Benn holiday. This is an indication that they might be seeking forgiveness for their next lives or somebody to take care of them when they die. On Pchum Benn people send food to “Pret” (lost souls or wandering ghosts) who have committed serious sins during their lifetimes and cannot be reborn. The enormity of the crimes committed by leaders of the Khmer Rouge could make them the worst "Pret" of all who would always be hungry and wandering without destination. If they can be forgiven by survivors, their prospect for life after death could be improved.
Forgiveness does not call for release or dissolution of the ECCC. Forgiveness is a very sensitive question. It is almost a taboo to ask victims or the public to consider. But I would like them to try. Complete justice after genocide is never possible. Without such justice, people are forced to live with a sense of injustice, grudges, anger and frustration. Those mental conditions negatively affect survivors to such an extent that without measures to cope, they can destroy them from inside. Much like the Khmer Rouge's own oft-cited slogan that the most contemptible of enemies are those "burrowing from within" and must be rooted out immediately, the atrocities of the Khmer Rouge genocide created mental conditions that have been burrowing inside survivors, for some people causing acute cases of mental disorder. On the other hand, whether admitting it or not, some people have been able to forgive the perpetrators.
During the Duch verdict announcement, I visited a remote village in Kampong Thom province in which Pin, a former Khmer Rouge and perpetrator and Pai, a survivor, have lived together for almost thirty years. Pin was involved in killing Pai's one-legged husband in 1977. Although Pin never admitted that he killed Pai's husband, simultaneous interviews with both of them revealed the chilling story of how Pai's husband died. On a cloudless afternoon in Kampong Thom, Pin and his comrade walked up Pai's house, tied her husband to its central column, interrogated him for a short time and then took him into the bush not far away from the village. Pin said Pai's husband did not resist. He and his comrade escorted him to the bush with a hoe, and he knew full well that the hoe would be used as an execution tool. Pin said Pai's husband's hands were tied behind him fairly loosely, but he did not attempt to escape. Arriving at the bush, Pai's husband was made to sit down and struck with the hoe. Pin did not describe clearly how Pai's husband was killed, he just said, "My comrade did the job." In the early 1980s, Pai excavated a shallow grave and found a one-legged skeleton with broken arms and fractured skull. Pin never said anything about the manner of his death, but judging from the trauma on the skeleton, Pai's husband died a brutal death. Pin's comrade who supposedly committed the act died many years ago. Pai witnessed Pin killing another person in the village. She saw how cold-blooded he was when taking a rifle and shooting the man like "a raging dog in full daylight."
Today Pin is living with his wife and two children. During the day he works in a pagoda to help the monks. He is old and frailty. Pai's four children have grown up. Two of them are able-bodied men. Overall, the family is much better off than Pin’s, meaning they can physically take revenge on Pin and few people in the village would consider it to be an injustice, or they could use their better social status to make Pin's life much worse than it already is. But Pai said, "I don't want to kill him and I have stopped my children from doing so. I want him to live so that he can take care of his wife and children." Pai does not want to see another woman becoming a widow and going through her same experience. Pai said that Pin is being punished by the Buddha for what he did. His mental capacity is weak and he is virtually an outcast in the village. Only the pagoda provides a haven for him.
Even though Pai never talks about forgiveness, in many respects she has forgiven Pin and has moved on with her life. Pai does not have to love Pin to forgive him. She does not have to communicate with him to forgive him. To Pai, Pin is a sad case of Buddha's example of living sin, to be rejected forever by survivors, society and his own self. Anyone falling into this category should be pitied. Perhaps one day, Pin will realize that the only way to rid himself of his sin is to continue collecting merits from the pagoda and repay Pai anyway possible. When that happens, a complete forgiveness and reconciliation may be possible. If Pin chooses the easy way by denying his crime, then complete forgiveness is not possible. For Pai, denial from Pin does not affect her, but admission increases her sense of enlightenment.
I believe this example is being lived in many other locations in Cambodia. People do not want to admit that it is happening because they would be seen as weak and surrendering to the perpetrators. Forgiveness is a very personal question. The path varies from person to person. It depends on how much harm was done, the demeanor of the perpetrators, and the life philosophy of survivors. It is possible for one to forgive entirely by oneself without interaction with the perpetrators. Also, forgiveness does not mean abandoning legal accountability. Forgiveness can be taught if one sees enough successful examples.
However, forgiving the four Khmer Rouge leaders is a different story. Will the devil of humanity be forgiven? Will Case 002 lay such a foundation for Cambodians in general to move beyond grudges? It will be a difficult test for forgiveness and reconciliation in Cambodia.
Kok-Thay Eng is Deputy Director and Director of Research of the Documentation Center of Cambodia.
Searching for the Truth.
MEMORY & JUSTICE
“...a society cannot know itself if it does not have an accurate memory of its own history.”
Youk Chhang, Director
Documentation Center of Cambodia
66 Sihanouk Blvd.,
Phnom Penh, Cambodia
I am delighted that on September 15, the Extraordinary Chambers in the Courts of Cambodia (ECCC) announced that the four remaining senior Khmer Rouge leaders currently in custody—Nuon Chea, Ieng Sary, Khieu Samphan and Ieng Thirith— were indicted for crimes against humanity and genocide, among other offenses. I hope that they will be tried fairly and punished justly according to the law. What they did to the people of Cambodia was beyond hell on earth. They were the devil of humanity. But can they be forgiven by the people? The four accused invited monks to their cells to preside over an offering ceremony during the Pchum Benn holiday. This is an indication that they might be seeking forgiveness for their next lives or somebody to take care of them when they die. On Pchum Benn people send food to “Pret” (lost souls or wandering ghosts) who have committed serious sins during their lifetimes and cannot be reborn. The enormity of the crimes committed by leaders of the Khmer Rouge could make them the worst "Pret" of all who would always be hungry and wandering without destination. If they can be forgiven by survivors, their prospect for life after death could be improved.
Forgiveness does not call for release or dissolution of the ECCC. Forgiveness is a very sensitive question. It is almost a taboo to ask victims or the public to consider. But I would like them to try. Complete justice after genocide is never possible. Without such justice, people are forced to live with a sense of injustice, grudges, anger and frustration. Those mental conditions negatively affect survivors to such an extent that without measures to cope, they can destroy them from inside. Much like the Khmer Rouge's own oft-cited slogan that the most contemptible of enemies are those "burrowing from within" and must be rooted out immediately, the atrocities of the Khmer Rouge genocide created mental conditions that have been burrowing inside survivors, for some people causing acute cases of mental disorder. On the other hand, whether admitting it or not, some people have been able to forgive the perpetrators.
During the Duch verdict announcement, I visited a remote village in Kampong Thom province in which Pin, a former Khmer Rouge and perpetrator and Pai, a survivor, have lived together for almost thirty years. Pin was involved in killing Pai's one-legged husband in 1977. Although Pin never admitted that he killed Pai's husband, simultaneous interviews with both of them revealed the chilling story of how Pai's husband died. On a cloudless afternoon in Kampong Thom, Pin and his comrade walked up Pai's house, tied her husband to its central column, interrogated him for a short time and then took him into the bush not far away from the village. Pin said Pai's husband did not resist. He and his comrade escorted him to the bush with a hoe, and he knew full well that the hoe would be used as an execution tool. Pin said Pai's husband's hands were tied behind him fairly loosely, but he did not attempt to escape. Arriving at the bush, Pai's husband was made to sit down and struck with the hoe. Pin did not describe clearly how Pai's husband was killed, he just said, "My comrade did the job." In the early 1980s, Pai excavated a shallow grave and found a one-legged skeleton with broken arms and fractured skull. Pin never said anything about the manner of his death, but judging from the trauma on the skeleton, Pai's husband died a brutal death. Pin's comrade who supposedly committed the act died many years ago. Pai witnessed Pin killing another person in the village. She saw how cold-blooded he was when taking a rifle and shooting the man like "a raging dog in full daylight."
Today Pin is living with his wife and two children. During the day he works in a pagoda to help the monks. He is old and frailty. Pai's four children have grown up. Two of them are able-bodied men. Overall, the family is much better off than Pin’s, meaning they can physically take revenge on Pin and few people in the village would consider it to be an injustice, or they could use their better social status to make Pin's life much worse than it already is. But Pai said, "I don't want to kill him and I have stopped my children from doing so. I want him to live so that he can take care of his wife and children." Pai does not want to see another woman becoming a widow and going through her same experience. Pai said that Pin is being punished by the Buddha for what he did. His mental capacity is weak and he is virtually an outcast in the village. Only the pagoda provides a haven for him.
Even though Pai never talks about forgiveness, in many respects she has forgiven Pin and has moved on with her life. Pai does not have to love Pin to forgive him. She does not have to communicate with him to forgive him. To Pai, Pin is a sad case of Buddha's example of living sin, to be rejected forever by survivors, society and his own self. Anyone falling into this category should be pitied. Perhaps one day, Pin will realize that the only way to rid himself of his sin is to continue collecting merits from the pagoda and repay Pai anyway possible. When that happens, a complete forgiveness and reconciliation may be possible. If Pin chooses the easy way by denying his crime, then complete forgiveness is not possible. For Pai, denial from Pin does not affect her, but admission increases her sense of enlightenment.
I believe this example is being lived in many other locations in Cambodia. People do not want to admit that it is happening because they would be seen as weak and surrendering to the perpetrators. Forgiveness is a very personal question. The path varies from person to person. It depends on how much harm was done, the demeanor of the perpetrators, and the life philosophy of survivors. It is possible for one to forgive entirely by oneself without interaction with the perpetrators. Also, forgiveness does not mean abandoning legal accountability. Forgiveness can be taught if one sees enough successful examples.
However, forgiving the four Khmer Rouge leaders is a different story. Will the devil of humanity be forgiven? Will Case 002 lay such a foundation for Cambodians in general to move beyond grudges? It will be a difficult test for forgiveness and reconciliation in Cambodia.
Kok-Thay Eng is Deputy Director and Director of Research of the Documentation Center of Cambodia.
Searching for the Truth.
MEMORY & JUSTICE
“...a society cannot know itself if it does not have an accurate memory of its own history.”
Youk Chhang, Director
Documentation Center of Cambodia
66 Sihanouk Blvd.,
Phnom Penh, Cambodia
RECONCILIATION IS PERSONAL
Lai Sim, Female Revolutionary Combatant
By Som Bunthorn
During the revolutionary period, some Cambodian people changed their names in order to sever their ties to previous regimes. In the early 1970’s, Lai Sim adopted a new name and has used that name ever since.
Lai Sim was born in Ampil village, Ponley commune, Prey Kabas district, Takeo province. She is now 56 years old, and lives in Banteay Malai commune, Banteay Meanchey province. During the Khmer Rouge era, she worked as a medic, a supervisor of a women’s unit, a commune messenger, a special unit combatant, and a salt field worker.
Malai is a five-minute drive from Thailand, but approximately eight hours from Phnom Penh. It is reachable only by a dirt road heavily pockmarked by the rainy season and a steady traffic of overloaded vehicles transporting corn and green beans. Heading south from Kaun Damrei (baby elephant) commune, the road follows the border through some of the most fertile and heavily mined land in Cambodia, connecting numerous villages settled by Khmer Rouge displaced after the fall of the Democratic Kampuchea regime.
Approximately 95% of the nearly 8,350 residents of Malai commune are former Khmer Rouge cadres from various provinces who moved there after 1979. Many fled to the border in response to rumors spread by the Khmer Rouge leaders that the Vietnamese would cut their throats if they caught them.
The region was fiercely disputed during the 1980s and early 1990s, with the Khmer Rouge using the Phnom Malai range, a 400-square-meter area, as its main military sanctuary. During those years, Khmer Rouge leaders warned people that if they fled to government controlled areas, they would be targeted for killing. On 6 August 1997, under the leadership of Ieng Sary, inhabitants in Malai integrated with the government.
When she was young and lived in Takeo province, Lai Sim studied at Kampeng primary school. During her childhood, she bought corn from Prey Lvea market to sell in the village. She stopped studying when she was in grade six. In 1970, following an order from Angkar (the Khmer Rouge leadership), Lai Sim volunteered to work as a revolutionary medic in Kampeng commune. During that period, Lai Sim and many other women were encouraged to work, and some were promoted to become combatants. Angkar did not select women who did not have a strong commitment to the organization.
In 1972, Lai Sim was appointed to be supervisor of the women’s unit in Ampil village. She was in charge of rice transplanting and harvesting. She attended several Self-criticism meetings at a house, built of cement, which still exists today. A couple of members who worked in her unit are also still alive.
In 1973, Lai Sim was transferred to work as a commune messenger responsible for sending letters to different villages by bicycle. Lai Sim was satisfied with this work, but never knew what the letters contained as she never opened them. During the Khmer Rouge regime, being a messenger was a powerful position. In general, Angkar recruited only reliable people to be messengers. Lai Sim still feels proud of that work.
Angkar recruited women who came from poor families to serve the revolution. Lai Sim met the requirements of Angkar, as her father was a cyclo driver during the Khmer Republic period (1970-1975). Lai Sim volunteered to serve in the Khmer Rouge army. Her parents did not oppose her decision. She was trained to crawl, duck, use a gun, and hide from bombs in Prey Khmeng, located in Kong Pisey district, Kampong Speu province. Soon afterward, Lai Sim was sent to special unit 101 of region 33.
Following the training, a regiment commander named Him assigned Lai Sim to fight at the Pech Nil, Doh Kanhchor, Moha Sang, and Trapeang Kra-loeng battlefields. When her unit was overrun, Lai Sim would escape to save herself and leave the remaining soldiers injured and dying. Her commander, however, never blamed her for this. Recognizing the sacrifices of its soldiers, Angkar ordered the army to supervise villagers in transporting the injured and dead soldiers back from the battlefield. The corpses were cut open and salt was inserted in their bellies to preserve them so that their relatives could hold a funeral once they were returned home. Two friends of Lai Sim were killed, crushed by a tank, as they lay hiding in a trench from the Khmer Republic forces. Whenever Lai Sim visited the mothers of her friends they always cried, mourning the death of their daughters.
Before sending them to the combat zone, Lai Sim’s commander divided his subordinates into two groups of soldiers, one female and one male, to lie in different trenches, but to fight at the same time. Whenever she needed to move from place to place, Lai Sim had to cut trees to camouflage her head so that the American air forces would not bomb her. At that time, the Khmer Rouge did not acknowledge the Khmer Republic army led by Lon Nol but instead instigated the people to fight against American forces.
After the Khmer Rouge took over the country in 1975, Lai Sim was sent to guard Kampong Tuol, Phnom Penh city, and prevent the Vietnamese soldiers from entering at night. Then, in 1976, she was appointed to work in a salt field in Kampot province. Lai Sim and other women were ordered to stamp the earth in a salt field before flooding it with seawater, and then to rake the seawater. After the seawater became salt, the workers put it in sacks and carried it to the store. Lai Sim’s supervisor selected female cadres who were active, capable, and reliable to visit Phnom Penh and watch a documentary film about salt fields at Chenla Theater. The purpose of the screening was to show the improvement of salt production during the regime. Lai Sim was one of the candidates selected.
Lai Sim had been separated from her parents since she was 15 years old and did not want them to worry about her. She wrote a letter in 1977 addressed to her father, Svay Muy, living at Ampil village, Ponley sub-district and sent it via a driver in the village.
Lai Sim worked at the salt field until the Vietnamese captured the village. She then ran to her home village. Because Lai Sim had served as a female village chief and a Khmer Rouge combatant, the villagers living nearby were unhappy with her. Eleven months later, Lai Sim migrated to Pailin. After the Vietnamese invasion in 1979, virtually all Khmer Rouge ran from them and lived on the border areas of Malai, Samlot and Kam-rieng and maintained their support of the Khmer Rouge. At first, countless people settling there became ill and died from malaria and insufficient food. Lai Sim also contracted a swelling disease due to malnutrition. Fortunately, she and others survived after receiving food support from the Red Cross.
Recently (September 2010), Lai Sim visited her father Svay Muy, who is now 84 years old. On the way to her home village, Lai Sim seemed to be happy and described her life under the regime openly and honestly without fear that villagers in her hometown would not like her arrival because she had worked for the Khmer Rouge. If Lai Sim did not move out of her home village, would she feel ashamed that she was a Khmer Rouge? And if she was poor, would the villagers in her home village look down upon her? Would she be able to reconcile with the villagers if she did not move out? And would the villagers forgive her if she maintained contact with the other villagers and victims of the Khmer Rouge?
But some people in the village blamed Lai Sim for the deaths of her nieces a few months earlier. They say their deaths were caused by her karma from crimes she committed against many innocent people while she worked for the Khmer Rouge. Even worse, they claimed that if she had not left the village, she may not have become as successful, or lived as peacefully.
Lai Sim’s life reflects the country’s efforts toward national reconciliation and raises questions about whether victims and perpetrators living in the same village can reconcile.
Searching for the Truth.
MEMORY & JUSTICE
“...a society cannot know itself if it does not have an accurate memory of its own history.”
Youk Chhang, Director
Documentation Center of Cambodia
66 Sihanouk Blvd.,
Phnom Penh, Cambodia
By Som Bunthorn
During the revolutionary period, some Cambodian people changed their names in order to sever their ties to previous regimes. In the early 1970’s, Lai Sim adopted a new name and has used that name ever since.
Lai Sim was born in Ampil village, Ponley commune, Prey Kabas district, Takeo province. She is now 56 years old, and lives in Banteay Malai commune, Banteay Meanchey province. During the Khmer Rouge era, she worked as a medic, a supervisor of a women’s unit, a commune messenger, a special unit combatant, and a salt field worker.
Malai is a five-minute drive from Thailand, but approximately eight hours from Phnom Penh. It is reachable only by a dirt road heavily pockmarked by the rainy season and a steady traffic of overloaded vehicles transporting corn and green beans. Heading south from Kaun Damrei (baby elephant) commune, the road follows the border through some of the most fertile and heavily mined land in Cambodia, connecting numerous villages settled by Khmer Rouge displaced after the fall of the Democratic Kampuchea regime.
Approximately 95% of the nearly 8,350 residents of Malai commune are former Khmer Rouge cadres from various provinces who moved there after 1979. Many fled to the border in response to rumors spread by the Khmer Rouge leaders that the Vietnamese would cut their throats if they caught them.
The region was fiercely disputed during the 1980s and early 1990s, with the Khmer Rouge using the Phnom Malai range, a 400-square-meter area, as its main military sanctuary. During those years, Khmer Rouge leaders warned people that if they fled to government controlled areas, they would be targeted for killing. On 6 August 1997, under the leadership of Ieng Sary, inhabitants in Malai integrated with the government.
When she was young and lived in Takeo province, Lai Sim studied at Kampeng primary school. During her childhood, she bought corn from Prey Lvea market to sell in the village. She stopped studying when she was in grade six. In 1970, following an order from Angkar (the Khmer Rouge leadership), Lai Sim volunteered to work as a revolutionary medic in Kampeng commune. During that period, Lai Sim and many other women were encouraged to work, and some were promoted to become combatants. Angkar did not select women who did not have a strong commitment to the organization.
In 1972, Lai Sim was appointed to be supervisor of the women’s unit in Ampil village. She was in charge of rice transplanting and harvesting. She attended several Self-criticism meetings at a house, built of cement, which still exists today. A couple of members who worked in her unit are also still alive.
In 1973, Lai Sim was transferred to work as a commune messenger responsible for sending letters to different villages by bicycle. Lai Sim was satisfied with this work, but never knew what the letters contained as she never opened them. During the Khmer Rouge regime, being a messenger was a powerful position. In general, Angkar recruited only reliable people to be messengers. Lai Sim still feels proud of that work.
Angkar recruited women who came from poor families to serve the revolution. Lai Sim met the requirements of Angkar, as her father was a cyclo driver during the Khmer Republic period (1970-1975). Lai Sim volunteered to serve in the Khmer Rouge army. Her parents did not oppose her decision. She was trained to crawl, duck, use a gun, and hide from bombs in Prey Khmeng, located in Kong Pisey district, Kampong Speu province. Soon afterward, Lai Sim was sent to special unit 101 of region 33.
Following the training, a regiment commander named Him assigned Lai Sim to fight at the Pech Nil, Doh Kanhchor, Moha Sang, and Trapeang Kra-loeng battlefields. When her unit was overrun, Lai Sim would escape to save herself and leave the remaining soldiers injured and dying. Her commander, however, never blamed her for this. Recognizing the sacrifices of its soldiers, Angkar ordered the army to supervise villagers in transporting the injured and dead soldiers back from the battlefield. The corpses were cut open and salt was inserted in their bellies to preserve them so that their relatives could hold a funeral once they were returned home. Two friends of Lai Sim were killed, crushed by a tank, as they lay hiding in a trench from the Khmer Republic forces. Whenever Lai Sim visited the mothers of her friends they always cried, mourning the death of their daughters.
Before sending them to the combat zone, Lai Sim’s commander divided his subordinates into two groups of soldiers, one female and one male, to lie in different trenches, but to fight at the same time. Whenever she needed to move from place to place, Lai Sim had to cut trees to camouflage her head so that the American air forces would not bomb her. At that time, the Khmer Rouge did not acknowledge the Khmer Republic army led by Lon Nol but instead instigated the people to fight against American forces.
After the Khmer Rouge took over the country in 1975, Lai Sim was sent to guard Kampong Tuol, Phnom Penh city, and prevent the Vietnamese soldiers from entering at night. Then, in 1976, she was appointed to work in a salt field in Kampot province. Lai Sim and other women were ordered to stamp the earth in a salt field before flooding it with seawater, and then to rake the seawater. After the seawater became salt, the workers put it in sacks and carried it to the store. Lai Sim’s supervisor selected female cadres who were active, capable, and reliable to visit Phnom Penh and watch a documentary film about salt fields at Chenla Theater. The purpose of the screening was to show the improvement of salt production during the regime. Lai Sim was one of the candidates selected.
Lai Sim had been separated from her parents since she was 15 years old and did not want them to worry about her. She wrote a letter in 1977 addressed to her father, Svay Muy, living at Ampil village, Ponley sub-district and sent it via a driver in the village.
Lai Sim worked at the salt field until the Vietnamese captured the village. She then ran to her home village. Because Lai Sim had served as a female village chief and a Khmer Rouge combatant, the villagers living nearby were unhappy with her. Eleven months later, Lai Sim migrated to Pailin. After the Vietnamese invasion in 1979, virtually all Khmer Rouge ran from them and lived on the border areas of Malai, Samlot and Kam-rieng and maintained their support of the Khmer Rouge. At first, countless people settling there became ill and died from malaria and insufficient food. Lai Sim also contracted a swelling disease due to malnutrition. Fortunately, she and others survived after receiving food support from the Red Cross.
Recently (September 2010), Lai Sim visited her father Svay Muy, who is now 84 years old. On the way to her home village, Lai Sim seemed to be happy and described her life under the regime openly and honestly without fear that villagers in her hometown would not like her arrival because she had worked for the Khmer Rouge. If Lai Sim did not move out of her home village, would she feel ashamed that she was a Khmer Rouge? And if she was poor, would the villagers in her home village look down upon her? Would she be able to reconcile with the villagers if she did not move out? And would the villagers forgive her if she maintained contact with the other villagers and victims of the Khmer Rouge?
But some people in the village blamed Lai Sim for the deaths of her nieces a few months earlier. They say their deaths were caused by her karma from crimes she committed against many innocent people while she worked for the Khmer Rouge. Even worse, they claimed that if she had not left the village, she may not have become as successful, or lived as peacefully.
Lai Sim’s life reflects the country’s efforts toward national reconciliation and raises questions about whether victims and perpetrators living in the same village can reconcile.
Searching for the Truth.
MEMORY & JUSTICE
“...a society cannot know itself if it does not have an accurate memory of its own history.”
Youk Chhang, Director
Documentation Center of Cambodia
66 Sihanouk Blvd.,
Phnom Penh, Cambodia
Hard turn for Khmer Rouge trial
By James O'Toole
Oct 8, 2010
PAILIN - Despite an awkwardly attached prosthetic leg, deputy governor Mey Meakk cut an authoritative figure as he strode into a recent community meeting in the former Khmer Rouge stronghold of Pailin along the Thai-Cambodian border.
The radical Maoist movement's former members have maintained political influence here in the transition from war to peace, despite atrocities committed during their rule that resulted in the deaths of perhaps 2.2 million people.
Provincial governor Y Chhean was formerly the head of Khmer Rouge leader Pol Pot's bodyguards; another deputy governor, Ieng Vuth, is the son of former Khmer Rouge foreign minister Ieng Sary and his wife, social action minister Ieng Thirith. Mey Meakk spoke admiringly of the elder Iengs at the forum, rejecting claims that their hands were "soiled with blood" as leaders of the former regime, which governed from 1975-79.
The two were indicted last month at Cambodia's United Nations-backed war crimes tribunal, along with former Khmer Rouge head of state Khieu Samphan and chief ideologue Nuon Chea, for genocide and crimes against humanity. Mey Meakk, himself a former secretary to Pol Pot, was joined at the meeting by tribunal staff, including British co-prosecutor Andrew Cayley, who were there as part of a community outreach effort to answer questions about the indictments and the work of the court.
While Mey Meakk's view that the four Khmer Rouge defendants are "victims" is a minority one, his broader concern points to the challenge the tribunal faces as it attempts to move forward with its work and build trust with the Cambodian government. "Continued, prolonged investigations of other people may not meet the goal of national reconciliation," Mey Meakk said.
In July, the tribunal sentenced former Khmer Rouge prison chief Kaing Guek Eav, better known as Duch, to 30 years in prison for crimes against humanity and breaches of the Geneva Conventions. While praise for the tribunal's first verdict came in immediately from the diplomatic community, outspoken Prime Minister Hun Sen's voice was conspicuously absent.
The 58-year-old strongman was not in the country on the day of the judgment and he offered no public comment on the landmark verdict in the days that followed. The silence was indicative of his government's often tense relationship with the court. It was over a week later that Hun Sen finally addressed the judgment, and only as part of a wide-ranging address at a graduation ceremony in Phnom Penh.
"I respect the verdict handed down by the court. The government has no right to interfere or put any pressure on the court," he said.
His comments offered an implicit rebuttal to critics who have charged that the prime minister and other officials have sought to influence the tribunal's work. Such charges have been levied by international civil society groups, with the New York-based Open Society Justice Initiative alleging in July that "the ability of individual Cambodian actors to resist interference by senior political figures and still maintain a position within the Cambodian legal system is limited".
The tribunal's hybrid setup has helped to drive those concerns. Unlike internationally administered war crimes tribunals created for Rwanda and the former Yugoslavia, the Khmer Rouge tribunal - or the Extraordinary Chambers in the Courts of Cambodia (ECCC), as it is formally known - prosecutes crimes under both domestic and international law and has international and Cambodian jurists working alongside one another.
Judicial chambers house Cambodian majorities, though super-majorities are required to secure judgments, meaning that at least one international judge must sign on for a decision issued by domestic judges to come into force. The task of applying international standards of justice to a Cambodian legal system still struggling to recover from the Khmer Rouge period has been considerable.
Yet over the course of the Duch case, the ECCC appeared to succeed in conducting a fair, procedurally sound trial, according to legal experts. Case 001, as the Duch proceedings were known, was seen in part as a dry run for the looming larger second trial.
Hard-core case
Hearings in Case 002, referred to by court officials as the ECCC's "core case", are expected to begin early next year and last at least two years. They will see the elderly Iengs, Khieu Samphan and Nuon Chea - the most senior surviving members of the Khmer Rouge - all brought together before the court's trial chamber.
Because the suspects will strongly contest the proceedings and the documentary evidence linking them to atrocities committed by low-level cadres is fragmented, their prosecution is expected to be significantly more difficult than that of Duch, who essentially pleaded guilty after leaving a voluminous paper trail from his time as a prison administrator.
"Case 002 is the most political, the most important, and the most difficult," said Youk Chhang, director of the Documentation Centre of Cambodia, which helped to compile much of the evidence used by the court. Chhang called the second case "a test of trust between the UN and the government in seeking justice for the Cambodian survivors".
The government already tussled with the UN over the handling of the next case. Last year, court investigators attempted to summon as witnesses six senior officials from Hun Sen's ruling political party. The summonses - signed by French investigating judge Marcel Lemonde, though not his Cambodian counterpart - were subsequently ignored, with the government supporting the officials' decision not to offer testimony.
Information Minister Khieu Kanharith said at the time that the tribunal's foreign staff could "pack their clothes and return home" if they were upset with the decision. Lemonde ultimately concluded that it would be impractical to try and compel the officials' testimony, and declined to pursue the matter further.
The two foreign judges in the court's pre-trial chamber last month recommended an internal investigation of alleged political interference in relation to the incident, though such an investigation was deemed unnecessary by their three Cambodian colleagues.
Court staff have also been divided on foreign versus local lines over the question of whether to pursue suspects beyond Case 002. Hun Sen has come out strongly against further prosecutions, claiming that they could stoke unrest and compromise the hard-won peace he achieved in the late 1990s when the Khmer Rouge movement finally collapsed.
"I prefer the failure of the tribunal than to let the country fall into war," the premier said last year.
His statement followed on the announcement that foreign prosecutor William Smith had made submissions for the investigations of five additional suspects - whose identities remain confidential - in two new cases. His Cambodian counterpart, Chea Leang, opposed the submissions, echoing the arguments by Hun Sen in claiming such prosecutions could threaten Cambodia's national security.
Nevertheless, Lemonde announced in June that he was moving forward with preliminary investigations into Cases 003 and 004, despite a last-second loss of backing from his Cambodian counterpart, You Bunleng, who initially signed off on the investigations before retracting his support. His sudden change of heart stoked further suspicions of government interference.
The prime minister's claims of a reignited civil war may be exaggerated. But it is certainly the case that former senior Khmer Rouge members continue to wield political influence in Cambodia. That's particularly true along the Thai border, where figures like Y Chhean preside over patronage networks established directly from their former status within the movement.
While court officials have said prosecutions will end following the third and fourth cases, Hun Sen, himself a former low-ranking Khmer Rouge soldier, may feel there is little to be gained by disturbing relations with ex-cadres who have been peacefully integrated into government.
Whether Cases 003 and 004 actually proceed, there is hope that the court has laid a foundation for the smooth completion of Case 002, where the defendants are already in their late 70s and 80s. Youk Chhang claimed that the Cambodian government had "begun to see the credibility of the court" following Duch's conviction, an important element for the tribunal's success.
"The court has to obtain trust, not only from the people of Cambodia, but also from the government," Chhang said.
Back in Pailin, the assembled audience of ex-Khmer Rouge members still harbored suspicions. The visiting tribunal staffers assured them, however, that the court's mandate is limited, and that rank-and-file members of the movement such as themselves had nothing to fear.
"I was so worried when I heard about the ECCC because I was afraid I would be arrested," said Pailin resident Meas Chea, 59, a former Khmer Rouge foot soldier. He professed remorse for his role in the conflict and said he had been following the progress of the court. 0 "I felt better after the court announced the Duch verdict," Chea said. "The court is finding justice not only for survivors, but for all those that died."
James O'Toole is a Phnom Penh-based journalist.
(Copyright 2010 Asia Times Online (Holdings) Ltd. All rights reserved. Please contact us about sales, syndication andrepublishing.)
Searching for the Truth.
MEMORY & JUSTICE
“...a society cannot know itself if it does not have an accurate memory of its own history.”
Youk Chhang, Director
Documentation Center of Cambodia
66 Sihanouk Blvd.,
Phnom Penh, Cambodia
Oct 8, 2010
PAILIN - Despite an awkwardly attached prosthetic leg, deputy governor Mey Meakk cut an authoritative figure as he strode into a recent community meeting in the former Khmer Rouge stronghold of Pailin along the Thai-Cambodian border.
The radical Maoist movement's former members have maintained political influence here in the transition from war to peace, despite atrocities committed during their rule that resulted in the deaths of perhaps 2.2 million people.
Provincial governor Y Chhean was formerly the head of Khmer Rouge leader Pol Pot's bodyguards; another deputy governor, Ieng Vuth, is the son of former Khmer Rouge foreign minister Ieng Sary and his wife, social action minister Ieng Thirith. Mey Meakk spoke admiringly of the elder Iengs at the forum, rejecting claims that their hands were "soiled with blood" as leaders of the former regime, which governed from 1975-79.
The two were indicted last month at Cambodia's United Nations-backed war crimes tribunal, along with former Khmer Rouge head of state Khieu Samphan and chief ideologue Nuon Chea, for genocide and crimes against humanity. Mey Meakk, himself a former secretary to Pol Pot, was joined at the meeting by tribunal staff, including British co-prosecutor Andrew Cayley, who were there as part of a community outreach effort to answer questions about the indictments and the work of the court.
While Mey Meakk's view that the four Khmer Rouge defendants are "victims" is a minority one, his broader concern points to the challenge the tribunal faces as it attempts to move forward with its work and build trust with the Cambodian government. "Continued, prolonged investigations of other people may not meet the goal of national reconciliation," Mey Meakk said.
In July, the tribunal sentenced former Khmer Rouge prison chief Kaing Guek Eav, better known as Duch, to 30 years in prison for crimes against humanity and breaches of the Geneva Conventions. While praise for the tribunal's first verdict came in immediately from the diplomatic community, outspoken Prime Minister Hun Sen's voice was conspicuously absent.
The 58-year-old strongman was not in the country on the day of the judgment and he offered no public comment on the landmark verdict in the days that followed. The silence was indicative of his government's often tense relationship with the court. It was over a week later that Hun Sen finally addressed the judgment, and only as part of a wide-ranging address at a graduation ceremony in Phnom Penh.
"I respect the verdict handed down by the court. The government has no right to interfere or put any pressure on the court," he said.
His comments offered an implicit rebuttal to critics who have charged that the prime minister and other officials have sought to influence the tribunal's work. Such charges have been levied by international civil society groups, with the New York-based Open Society Justice Initiative alleging in July that "the ability of individual Cambodian actors to resist interference by senior political figures and still maintain a position within the Cambodian legal system is limited".
The tribunal's hybrid setup has helped to drive those concerns. Unlike internationally administered war crimes tribunals created for Rwanda and the former Yugoslavia, the Khmer Rouge tribunal - or the Extraordinary Chambers in the Courts of Cambodia (ECCC), as it is formally known - prosecutes crimes under both domestic and international law and has international and Cambodian jurists working alongside one another.
Judicial chambers house Cambodian majorities, though super-majorities are required to secure judgments, meaning that at least one international judge must sign on for a decision issued by domestic judges to come into force. The task of applying international standards of justice to a Cambodian legal system still struggling to recover from the Khmer Rouge period has been considerable.
Yet over the course of the Duch case, the ECCC appeared to succeed in conducting a fair, procedurally sound trial, according to legal experts. Case 001, as the Duch proceedings were known, was seen in part as a dry run for the looming larger second trial.
Hard-core case
Hearings in Case 002, referred to by court officials as the ECCC's "core case", are expected to begin early next year and last at least two years. They will see the elderly Iengs, Khieu Samphan and Nuon Chea - the most senior surviving members of the Khmer Rouge - all brought together before the court's trial chamber.
Because the suspects will strongly contest the proceedings and the documentary evidence linking them to atrocities committed by low-level cadres is fragmented, their prosecution is expected to be significantly more difficult than that of Duch, who essentially pleaded guilty after leaving a voluminous paper trail from his time as a prison administrator.
"Case 002 is the most political, the most important, and the most difficult," said Youk Chhang, director of the Documentation Centre of Cambodia, which helped to compile much of the evidence used by the court. Chhang called the second case "a test of trust between the UN and the government in seeking justice for the Cambodian survivors".
The government already tussled with the UN over the handling of the next case. Last year, court investigators attempted to summon as witnesses six senior officials from Hun Sen's ruling political party. The summonses - signed by French investigating judge Marcel Lemonde, though not his Cambodian counterpart - were subsequently ignored, with the government supporting the officials' decision not to offer testimony.
Information Minister Khieu Kanharith said at the time that the tribunal's foreign staff could "pack their clothes and return home" if they were upset with the decision. Lemonde ultimately concluded that it would be impractical to try and compel the officials' testimony, and declined to pursue the matter further.
The two foreign judges in the court's pre-trial chamber last month recommended an internal investigation of alleged political interference in relation to the incident, though such an investigation was deemed unnecessary by their three Cambodian colleagues.
Court staff have also been divided on foreign versus local lines over the question of whether to pursue suspects beyond Case 002. Hun Sen has come out strongly against further prosecutions, claiming that they could stoke unrest and compromise the hard-won peace he achieved in the late 1990s when the Khmer Rouge movement finally collapsed.
"I prefer the failure of the tribunal than to let the country fall into war," the premier said last year.
His statement followed on the announcement that foreign prosecutor William Smith had made submissions for the investigations of five additional suspects - whose identities remain confidential - in two new cases. His Cambodian counterpart, Chea Leang, opposed the submissions, echoing the arguments by Hun Sen in claiming such prosecutions could threaten Cambodia's national security.
Nevertheless, Lemonde announced in June that he was moving forward with preliminary investigations into Cases 003 and 004, despite a last-second loss of backing from his Cambodian counterpart, You Bunleng, who initially signed off on the investigations before retracting his support. His sudden change of heart stoked further suspicions of government interference.
The prime minister's claims of a reignited civil war may be exaggerated. But it is certainly the case that former senior Khmer Rouge members continue to wield political influence in Cambodia. That's particularly true along the Thai border, where figures like Y Chhean preside over patronage networks established directly from their former status within the movement.
While court officials have said prosecutions will end following the third and fourth cases, Hun Sen, himself a former low-ranking Khmer Rouge soldier, may feel there is little to be gained by disturbing relations with ex-cadres who have been peacefully integrated into government.
Whether Cases 003 and 004 actually proceed, there is hope that the court has laid a foundation for the smooth completion of Case 002, where the defendants are already in their late 70s and 80s. Youk Chhang claimed that the Cambodian government had "begun to see the credibility of the court" following Duch's conviction, an important element for the tribunal's success.
"The court has to obtain trust, not only from the people of Cambodia, but also from the government," Chhang said.
Back in Pailin, the assembled audience of ex-Khmer Rouge members still harbored suspicions. The visiting tribunal staffers assured them, however, that the court's mandate is limited, and that rank-and-file members of the movement such as themselves had nothing to fear.
"I was so worried when I heard about the ECCC because I was afraid I would be arrested," said Pailin resident Meas Chea, 59, a former Khmer Rouge foot soldier. He professed remorse for his role in the conflict and said he had been following the progress of the court. 0 "I felt better after the court announced the Duch verdict," Chea said. "The court is finding justice not only for survivors, but for all those that died."
James O'Toole is a Phnom Penh-based journalist.
(Copyright 2010 Asia Times Online (Holdings) Ltd. All rights reserved. Please contact us about sales, syndication andrepublishing.)
Searching for the Truth.
MEMORY & JUSTICE
“...a society cannot know itself if it does not have an accurate memory of its own history.”
Youk Chhang, Director
Documentation Center of Cambodia
66 Sihanouk Blvd.,
Phnom Penh, Cambodia
Cambodians head to temples in annual ceremony for the dead
dpa ("EarthTimes," October 5, 2010)
Phnom Penh, Cambodia - The crowds arrive before dawn, heading through the temple gates from 4 am. Dressed in their finest silk clothing, people come throughout the morning with food and flowers, and lay them before lines of monks who chant prayers for the dead.
The ceremony, known as Pchum Ben, is one of the most important for Cambodia's majority Buddhist population. It lasts for 15 days, and this year ends on October 9.
For the dead, Pchum Ben marks the period when their spirits are allowed to leave hell and visit the temples to seek food. For the living, it is a time to bring offerings and remember their relatives.
Cambodia's turbulent history means many have vivid memories of loss. As many as 2.2 million people died out of a pre-war population of 8 million during the Khmer Rouge's rule between 1975 and 1979.
At Wat Langka, one of Phnom Penh's most important Buddhist temples, the Venerable Hou Sarith, a senior monk, says most people lost relatives during that time.
"The people believe that if they give this food to the monks, then the monks, who have high morality, can deliver that food to those spirits," he says.
And, he adds, bringing food also results in the living acquiring merit.
Outside Wat Langka's central hall, Va Kimchheang, a civil servant, says the ceremony is a time for her family to come together.
Va Kimchheang was a child during the Khmer Rouge regime, and has only vague memories of that time. But the emotion of loss is close to the surface, and she fights back tears as she speaks.
"I lost many relations during the Pol Pot regime: My aunt, my brothers, and there were others too," she says.
Today she has brought her two young children, who join her in lighting incense for the dead. Wat Langka is the ninth pagoda they have visited.
She says the spirits will receive the food that they offer to the monks.
"We of the young generation wish that those spirits who are in a bad place can go to a better place," she says softly. "And we wish that those who are unhappy will be happy."
With that, Va Kimchheang heads into the main hall and sits on the floor with other faithful. Across from them, behind a low wooden table laden with baskets of food, are several dozen orange-robed monks waiting to chant prayers.
At one end of the room a reclining Buddha stretches behind a bank of incense sticks, while at the other a band plays music on traditional instruments under a ceiling showing images from the Buddha's life.
It is a peaceful scene that contrasts starkly with the bloodshed of the 1970s. Some people believe that the spirits of those who die violently - as so many did under the Khmer Rouge - are malevolent.
Hou Sarith says that is not necessarily the case. The spirit's state, he says, depends on the person's thoughts at the time of their death.
"If the person is angry at the injustice of being killed, then the spirit will take that anger into the spirit world," he says. "And then those angry spirits will not be able to find a place where they can be born again."
Although Pchum Ben is an ancient ceremony, it has started to catch up with the 21st century. A year ago Hou Sarith started to use the internet to share the festival far beyond the temple precincts.
His laptop is logged in to an online chat room called PalTalk, where several dozen devotees from the United States, Canada, Europe, Sri Lanka and Thailand are signed in.
The monks' prayer chants drift in through the barred window. Hou Sarith turns up the sound on his laptop, and a lone voice from, as it turns out, the US state of Colorado, rings through the tinny speakers.
He says he and the other monks around the world take it in turns to lead the daily sermons.
"Today my colleague, the Venerable Karna, is delivering the sermon. And tomorrow I am," he says. "With this I have the ability to deliver the Pchum Ben sermons to many people."
Disclaimer: WWRN does not endorse or adhere to views or opinions expressed in the articles posted. This is purely an information site, to inform interested parties of religious trends.
Searching for the Truth.
MEMORY & JUSTICE
“...a society cannot know itself if it does not have an accurate memory of its own history.”
Youk Chhang, Director
Documentation Center of Cambodia
66 Sihanouk Blvd.,
Phnom Penh, Cambodia
Phnom Penh, Cambodia - The crowds arrive before dawn, heading through the temple gates from 4 am. Dressed in their finest silk clothing, people come throughout the morning with food and flowers, and lay them before lines of monks who chant prayers for the dead.
The ceremony, known as Pchum Ben, is one of the most important for Cambodia's majority Buddhist population. It lasts for 15 days, and this year ends on October 9.
For the dead, Pchum Ben marks the period when their spirits are allowed to leave hell and visit the temples to seek food. For the living, it is a time to bring offerings and remember their relatives.
Cambodia's turbulent history means many have vivid memories of loss. As many as 2.2 million people died out of a pre-war population of 8 million during the Khmer Rouge's rule between 1975 and 1979.
At Wat Langka, one of Phnom Penh's most important Buddhist temples, the Venerable Hou Sarith, a senior monk, says most people lost relatives during that time.
"The people believe that if they give this food to the monks, then the monks, who have high morality, can deliver that food to those spirits," he says.
And, he adds, bringing food also results in the living acquiring merit.
Outside Wat Langka's central hall, Va Kimchheang, a civil servant, says the ceremony is a time for her family to come together.
Va Kimchheang was a child during the Khmer Rouge regime, and has only vague memories of that time. But the emotion of loss is close to the surface, and she fights back tears as she speaks.
"I lost many relations during the Pol Pot regime: My aunt, my brothers, and there were others too," she says.
Today she has brought her two young children, who join her in lighting incense for the dead. Wat Langka is the ninth pagoda they have visited.
She says the spirits will receive the food that they offer to the monks.
"We of the young generation wish that those spirits who are in a bad place can go to a better place," she says softly. "And we wish that those who are unhappy will be happy."
With that, Va Kimchheang heads into the main hall and sits on the floor with other faithful. Across from them, behind a low wooden table laden with baskets of food, are several dozen orange-robed monks waiting to chant prayers.
At one end of the room a reclining Buddha stretches behind a bank of incense sticks, while at the other a band plays music on traditional instruments under a ceiling showing images from the Buddha's life.
It is a peaceful scene that contrasts starkly with the bloodshed of the 1970s. Some people believe that the spirits of those who die violently - as so many did under the Khmer Rouge - are malevolent.
Hou Sarith says that is not necessarily the case. The spirit's state, he says, depends on the person's thoughts at the time of their death.
"If the person is angry at the injustice of being killed, then the spirit will take that anger into the spirit world," he says. "And then those angry spirits will not be able to find a place where they can be born again."
Although Pchum Ben is an ancient ceremony, it has started to catch up with the 21st century. A year ago Hou Sarith started to use the internet to share the festival far beyond the temple precincts.
His laptop is logged in to an online chat room called PalTalk, where several dozen devotees from the United States, Canada, Europe, Sri Lanka and Thailand are signed in.
The monks' prayer chants drift in through the barred window. Hou Sarith turns up the sound on his laptop, and a lone voice from, as it turns out, the US state of Colorado, rings through the tinny speakers.
He says he and the other monks around the world take it in turns to lead the daily sermons.
"Today my colleague, the Venerable Karna, is delivering the sermon. And tomorrow I am," he says. "With this I have the ability to deliver the Pchum Ben sermons to many people."
Disclaimer: WWRN does not endorse or adhere to views or opinions expressed in the articles posted. This is purely an information site, to inform interested parties of religious trends.
Searching for the Truth.
MEMORY & JUSTICE
“...a society cannot know itself if it does not have an accurate memory of its own history.”
Youk Chhang, Director
Documentation Center of Cambodia
66 Sihanouk Blvd.,
Phnom Penh, Cambodia
'UNTAC Elections and the Khmer Rouge' Exhibition in Thailand, October 5, 2010
Documentation Center of Cambodia (DC-Cam) will mount an exhibition at Chulalongkorn University on the role of the Khmer Rouge during the period of UNTAC. The opening of the exhibition will follow a lecture given by DC-Cam Director Youk Chhang at the university. The event will take place one month prior to multi-party elections in Burma scheduled for November 7, 2010. Burma has been ruled by a military regime since 1989 and has been heavily criticized for the oppression of its people.
In 1992 the United Nations Transitional Authority in Cambodia (UNTAC) was created as part of the UN effort to end a decade long civil war between the Khmer Rouge and the State of Cambodia under the 1991 Paris Peace Accords. UNTAC administered the first-ever democratic elections in Cambodia on May 1993 with a high 90% voter turnout of approximately 4 million people. Left out of the political reconstruction process however, the Khmer Rouge boycotted the elections and continued several more years of fighting with the new government. Thus a common critique of the UNTAC period is the failure to resolve the Khmer Rouge problem, in particular the failure to disarm and demobilize the Khmer Rouge. Further, the Khmer Rouge were not held accountable for the brutal crimes committed under Democratic Kampuchea. Nonetheless, UNTAC was a pivotal moment in Cambodia’s modern history, prompting some to draw comparisons to the present situation in Burma in hopes of gaining insight on Burma’s prospects for democratization.
------------------
Searching for the Truth.
MEMORY & JUSTICE
“...a society cannot know itself if it does not have an accurate memory of its own history.”
Youk Chhang, Director
Documentation Center of Cambodia
66 Sihanouk Blvd.,
Phnom Penh, Cambodia
In 1992 the United Nations Transitional Authority in Cambodia (UNTAC) was created as part of the UN effort to end a decade long civil war between the Khmer Rouge and the State of Cambodia under the 1991 Paris Peace Accords. UNTAC administered the first-ever democratic elections in Cambodia on May 1993 with a high 90% voter turnout of approximately 4 million people. Left out of the political reconstruction process however, the Khmer Rouge boycotted the elections and continued several more years of fighting with the new government. Thus a common critique of the UNTAC period is the failure to resolve the Khmer Rouge problem, in particular the failure to disarm and demobilize the Khmer Rouge. Further, the Khmer Rouge were not held accountable for the brutal crimes committed under Democratic Kampuchea. Nonetheless, UNTAC was a pivotal moment in Cambodia’s modern history, prompting some to draw comparisons to the present situation in Burma in hopes of gaining insight on Burma’s prospects for democratization.
------------------
Searching for the Truth.
MEMORY & JUSTICE
“...a society cannot know itself if it does not have an accurate memory of its own history.”
Youk Chhang, Director
Documentation Center of Cambodia
66 Sihanouk Blvd.,
Phnom Penh, Cambodia
The Khmer Rouge Tribunal Case 002: Will Justice Be Served for Cambodia?
Thursday, October 7, 2010
3:00-5:30pm
Francis Deng
Special Adviser to the UN Secretary-General on the Prevention of Genocide
Benny Widyono
Former Representative of the UN Secretary-General in Cambodia
Paul Robeson Gallery*
Robeson Campus Center
350 Martin Luther King Jr. Blvd.
Rutgers University, Newark
Dr. Francis Deng took up the position of Special Adviser to the
Secretary-General on the Prevention of Genocide on August 1, 2007. He has
served in a number of other official capacities, including being the
Representative of the UN Secretary-General on Internally Displaced Persons
from 1992-2004. Mr. Deng holds an LL.B from Khartoum University and an LL.M
and a J.S.D. from Yale University and has authored and edited over 30 books
in the fields of law, conflict resolution, internal displacement, human
rights, anthropology, folklore, history and politics and has also written
two novels on the crisis of national identity in the Sudan.
Dr. Benny Widyono, an Indonesian national, has an MA and PhD in Economics
and served as a United Nations civil servant for 34 years in Bangkok,
Santiago, New York, and Cambodia, 1963 to 1997. In Cambodia he served two
terms, first during 1992-93 with the United Nations Transitional Authority
in Cambodia, and secondly as the former UN Secretary-General’s Political
Representative from 1994-1997. His memoirs of his Cambodia years, Dancing
in the Shadows: Sihanouk, the Khmer Rouge, and the United Nations in
Cambodia was published in 2008. He is currently professor of economics at
the University of Connecticut in Stamford.
***This event is held as part of CGCHR’s new Program on Environment,
Sustainable Development, and Peace-building and Fall 2010 Speaker Series on
Humanitarianism and co-sponsored by the DOCUMENTATION CENTER OF CAMBODIA
(for more information on DC-Cam, please visit: www.dccam.org).***
***For directions to the Paul Robeson Art Gallery, which is located on the
first floor of the Robeson Campus Center, please see:
http://www.newark.rutgers.edu/maps/***
***For more information on the Center for the Study of Genocide, Conflict
Resolution, and Human Rights and its initiatives, please see the attached
poster and visit: http://cghr.newark.rutgers.edu/ ***
------------------
Searching for the Truth.
MEMORY & JUSTICE
“...a society cannot know itself if it does not have an accurate memory of its own history.”
Youk Chhang, Director
Documentation Center of Cambodia
66 Sihanouk Blvd.,
Phnom Penh, Cambodia
3:00-5:30pm
Francis Deng
Special Adviser to the UN Secretary-General on the Prevention of Genocide
Benny Widyono
Former Representative of the UN Secretary-General in Cambodia
Paul Robeson Gallery*
Robeson Campus Center
350 Martin Luther King Jr. Blvd.
Rutgers University, Newark
Dr. Francis Deng took up the position of Special Adviser to the
Secretary-General on the Prevention of Genocide on August 1, 2007. He has
served in a number of other official capacities, including being the
Representative of the UN Secretary-General on Internally Displaced Persons
from 1992-2004. Mr. Deng holds an LL.B from Khartoum University and an LL.M
and a J.S.D. from Yale University and has authored and edited over 30 books
in the fields of law, conflict resolution, internal displacement, human
rights, anthropology, folklore, history and politics and has also written
two novels on the crisis of national identity in the Sudan.
Dr. Benny Widyono, an Indonesian national, has an MA and PhD in Economics
and served as a United Nations civil servant for 34 years in Bangkok,
Santiago, New York, and Cambodia, 1963 to 1997. In Cambodia he served two
terms, first during 1992-93 with the United Nations Transitional Authority
in Cambodia, and secondly as the former UN Secretary-General’s Political
Representative from 1994-1997. His memoirs of his Cambodia years, Dancing
in the Shadows: Sihanouk, the Khmer Rouge, and the United Nations in
Cambodia was published in 2008. He is currently professor of economics at
the University of Connecticut in Stamford.
***This event is held as part of CGCHR’s new Program on Environment,
Sustainable Development, and Peace-building and Fall 2010 Speaker Series on
Humanitarianism and co-sponsored by the DOCUMENTATION CENTER OF CAMBODIA
(for more information on DC-Cam, please visit: www.dccam.org).***
***For directions to the Paul Robeson Art Gallery, which is located on the
first floor of the Robeson Campus Center, please see:
http://www.newark.rutgers.edu/maps/***
***For more information on the Center for the Study of Genocide, Conflict
Resolution, and Human Rights and its initiatives, please see the attached
poster and visit: http://cghr.newark.rutgers.edu/ ***
------------------
Searching for the Truth.
MEMORY & JUSTICE
“...a society cannot know itself if it does not have an accurate memory of its own history.”
Youk Chhang, Director
Documentation Center of Cambodia
66 Sihanouk Blvd.,
Phnom Penh, Cambodia
Sunday, October 3, 2010
Cambodian school displays anti-genocide slogans
(AFP) – 2 hours ago
PHNOM PENH — A high school in the Cambodian capital became the first in the country on Friday to display anti-genocide slogans in an effort to educate youngsters about the murderous Khmer Rouge regime.
Pupils arriving for the first day of the school year at Indra Devi High School were greeted with the message, mounted in blue on the side of the library building. It reflected a growing willingness to discuss the country's bloody past.
"Talking about experiences during the Khmer Rouge regime is to promote reconciliation and to educate children about forgiveness and tolerance," the sign said.
Directly below it, a second slogan, also in Khmer and English, read: "Learning about the history of Democratic Kampuchea is to prevent genocide," referring to the communist movement's name for their 1975-1979 regime.
From early next year, the messages will appear in every high school in the country.
The "Killing Fields" era, when up to two million people died of execution, overwork and starvation, is a much-discussed topic in the classroom, said student So Rithchhaya.
"The teachers talk a lot about it," he told AFP.
"We need the slogans, it can make us remember our history," said the 15-year-old, wearing his boy scout uniform for the unveiling.
Maths teacher Kouy Seak Leang added: "My students cannot know enough about the Khmer Rouge."
More than 70 percent of Cambodia's 14 million people were born after the Khmer Rouge were ousted in 1979.
The scheme is backed by the Documentation Centre of Cambodia, which collects evidence of Khmer Rouge atrocities.
"The purpose of placing anti-genocide slogans in high schools is to raise awareness among students and teachers about genocide and genocide prevention," the organisation said in a statement.
The school's unveiling ceremony comes just two weeks after a UN-backed war crimes court announced that four senior regime leaders will stand trial for genocide, war crimes and crimes against humanity.
It will be the tribunal's second case following the July conviction of former prison chief Kaing Guek Eav, alias Duch, for overseeing the deaths of some 15,000 men, women and children at a Phnom Penh detention centre.
Copyright © 2010 AFP. All rights reserved. More »
Searching for the Truth.
MEMORY & JUSTICE
“...a society cannot know itself if it does not have an accurate memory of its own history.”
Youk Chhang, Director
Documentation Center of Cambodia
66 Sihanouk Blvd.,
Phnom Penh, Cambodia
PHNOM PENH — A high school in the Cambodian capital became the first in the country on Friday to display anti-genocide slogans in an effort to educate youngsters about the murderous Khmer Rouge regime.
Pupils arriving for the first day of the school year at Indra Devi High School were greeted with the message, mounted in blue on the side of the library building. It reflected a growing willingness to discuss the country's bloody past.
"Talking about experiences during the Khmer Rouge regime is to promote reconciliation and to educate children about forgiveness and tolerance," the sign said.
Directly below it, a second slogan, also in Khmer and English, read: "Learning about the history of Democratic Kampuchea is to prevent genocide," referring to the communist movement's name for their 1975-1979 regime.
From early next year, the messages will appear in every high school in the country.
The "Killing Fields" era, when up to two million people died of execution, overwork and starvation, is a much-discussed topic in the classroom, said student So Rithchhaya.
"The teachers talk a lot about it," he told AFP.
"We need the slogans, it can make us remember our history," said the 15-year-old, wearing his boy scout uniform for the unveiling.
Maths teacher Kouy Seak Leang added: "My students cannot know enough about the Khmer Rouge."
More than 70 percent of Cambodia's 14 million people were born after the Khmer Rouge were ousted in 1979.
The scheme is backed by the Documentation Centre of Cambodia, which collects evidence of Khmer Rouge atrocities.
"The purpose of placing anti-genocide slogans in high schools is to raise awareness among students and teachers about genocide and genocide prevention," the organisation said in a statement.
The school's unveiling ceremony comes just two weeks after a UN-backed war crimes court announced that four senior regime leaders will stand trial for genocide, war crimes and crimes against humanity.
It will be the tribunal's second case following the July conviction of former prison chief Kaing Guek Eav, alias Duch, for overseeing the deaths of some 15,000 men, women and children at a Phnom Penh detention centre.
Copyright © 2010 AFP. All rights reserved. More »
Searching for the Truth.
MEMORY & JUSTICE
“...a society cannot know itself if it does not have an accurate memory of its own history.”
Youk Chhang, Director
Documentation Center of Cambodia
66 Sihanouk Blvd.,
Phnom Penh, Cambodia
Communism’s Nuremberg The crimes of the Khmer Rouge are inextricable from Marxist/Leninist ideology.
26 September 2010
The four surviving leaders of Cambodia’s Khmer Rouge regime, including the former head of state, Khieu Samphan, have been imprisoned in Phnom Penh since 2007 and will be brought to justice in their own country. On September 16, a United Nations-backed Cambodian tribunal indicted them for genocide, crimes against humanity, and other crimes. The tribunal has already established its credibility with its first trial: this past July 26, it sentenced Kaing Guek Eav (better known as Duch), a cog in the Khmer Rouge’s extermination machine, to 35 years in prison. Duch ran a torture center from 1975 to 1979 that produced 15,000 victims. Unlike the Nuremberg tribunal that judged Nazi leaders in 1945, the Phnom Penh tribunal is not run by the victorious powers; it functions within the Cambodian justice system, sustained by Cambodian public opinion, though the U.N. provides financing. The tribunal’s legitimacy and objectivity are beyond reproach. Still, the Cambodian public did not see Duch’s sentence as sufficient in view of his crimes. The defendant apparently persuaded the court that he was obeying his superior’s orders—the same excuse Nazi leaders made at Nuremberg.
In the Western and Asian press, as well as in statements by various governments, a distinct effort has been made to reduce the crimes of Duch and of Khieu Samphan to matters of local circumstance. It is as if an unfortunate catastrophe had fallen on Cambodia in 1975 called the “Khmer Rouge,” killing 1.5 million Khmers. But who or what was behind what the tribunal has called the genocide of Khmers by other Khmers? Might this be the fault of the United States? Was it not the Americans who, by setting up a regime in Cambodia to their liking, brought about a nationalist reaction? Or, might this genocide not be a cultural legacy, distinctive of Khmer civilization? Archeologists are digging through the past in vain to find a historical precedent. The true explanation, the meaning of the crime, can be found in the declarations of the Khmer Rouge themselves: just as Hitler described his crimes in advance, Pol Pot (who died in 1998) had explained early on that he would destroy his people, so as to create a new one. Pol Pot called himself a Communist; he became one in the 1960s as a student in Paris, then a cradle of Marxism. Since Pol Pot and leaders of the regime that he forced on his people referred to themselves as Communists—and in no way claimed to be heirs of some Cambodian dynasty—we must acknowledge that they were, in fact, Communists.
What the Khmer Rouge brought to Cambodia was in fact real Communism. There was no radical distinction, either conceptually or concretely, between the rule of the Khmer Rouge and that of Stalinism, Maoism, Castroism, or the North Korean regime. All Communist regimes follow strangely similar trajectories, barely colored by local traditions. In every case, these regimes seek to make a blank slate of the past and to forge a new humanity. In every case, the “rich,” intellectuals, and skeptics wind up exterminated. The Khmer Rouge rounded up urban and rural populations in agricultural communities based on precedents both Russian (the Kolkhozy) and Chinese (the popular communes), and they acted for the same ideological reasons and with the same result: famine. There is no such thing as real Communism without massacre, torture, concentration camps, gulags, or laogai. And if there has never been any such thing, then we must conclude that there could be no other outcome: Communist ideology leads necessarily to mass violence, because the masses do not want real Communism. This is as true in the rice fields of Cambodia as in the plains of Ukraine or under Cuban palms.
The trial of Duch and the eventual trial of the Band of Four are thus the first trials, on human rights grounds, of responsible Marxist officials from an officially Marxist, Leninist, or Maoist regime. Nazism’s trial took place in Nuremberg beginning in late 1945, and Japanese fascism’s in Tokyo the following year. But until now, we have had no trial for Communism, though real Communism killed or mutilated more victims than Nazism and Fascism combined. Communism’s trial has never taken place, outside the intellectual sphere, for two reasons. First, Communism enjoys a kind of ideological immunity because it claims to be on the side of progress. Second, Communists remain in power in Beijing, Pyongyang, Hanoi, and Havana. And in areas where they’ve lost power—as in the former Soviet Union—the Communists arranged their own immunity by converting themselves into social democrats, businessmen, or nationalist leaders.
The only currently possible and effective trial of Communism must therefore take place in Cambodia. But make no mistake: this is no mere trial of Cambodians by other Cambodians. In the Phnom Penh trial, real Communism is confronted with its victims. The trial reveals not only how useful Marxism is for claiming, seizing, and exercising power in absolute fashion, but also a strange characteristic of real Communism. No one seems willing to claim the mantle of Marxism, not even former leaders. The Khmer Rouge killed in Marx’s, Lenin’s, and Mao’s names, but they prefer to die as traitors to their own cause or to run away. This cowardice shows Marxism in a new light: Marxism is real, but it isn’t true, since no one believes in it.
Guy Sorman, a City Journal contributing editor, is the author of Empire of Lies: The Truth about China in the Twenty-First Century and other books. This article was translated by Alexis Cornel.
Searching for the Truth.
MEMORY & JUSTICE
“...a society cannot know itself if it does not have an accurate memory of its own history.”
Youk Chhang, Director
Documentation Center of Cambodia
66 Sihanouk Blvd.,
Phnom Penh, Cambodia
The four surviving leaders of Cambodia’s Khmer Rouge regime, including the former head of state, Khieu Samphan, have been imprisoned in Phnom Penh since 2007 and will be brought to justice in their own country. On September 16, a United Nations-backed Cambodian tribunal indicted them for genocide, crimes against humanity, and other crimes. The tribunal has already established its credibility with its first trial: this past July 26, it sentenced Kaing Guek Eav (better known as Duch), a cog in the Khmer Rouge’s extermination machine, to 35 years in prison. Duch ran a torture center from 1975 to 1979 that produced 15,000 victims. Unlike the Nuremberg tribunal that judged Nazi leaders in 1945, the Phnom Penh tribunal is not run by the victorious powers; it functions within the Cambodian justice system, sustained by Cambodian public opinion, though the U.N. provides financing. The tribunal’s legitimacy and objectivity are beyond reproach. Still, the Cambodian public did not see Duch’s sentence as sufficient in view of his crimes. The defendant apparently persuaded the court that he was obeying his superior’s orders—the same excuse Nazi leaders made at Nuremberg.
In the Western and Asian press, as well as in statements by various governments, a distinct effort has been made to reduce the crimes of Duch and of Khieu Samphan to matters of local circumstance. It is as if an unfortunate catastrophe had fallen on Cambodia in 1975 called the “Khmer Rouge,” killing 1.5 million Khmers. But who or what was behind what the tribunal has called the genocide of Khmers by other Khmers? Might this be the fault of the United States? Was it not the Americans who, by setting up a regime in Cambodia to their liking, brought about a nationalist reaction? Or, might this genocide not be a cultural legacy, distinctive of Khmer civilization? Archeologists are digging through the past in vain to find a historical precedent. The true explanation, the meaning of the crime, can be found in the declarations of the Khmer Rouge themselves: just as Hitler described his crimes in advance, Pol Pot (who died in 1998) had explained early on that he would destroy his people, so as to create a new one. Pol Pot called himself a Communist; he became one in the 1960s as a student in Paris, then a cradle of Marxism. Since Pol Pot and leaders of the regime that he forced on his people referred to themselves as Communists—and in no way claimed to be heirs of some Cambodian dynasty—we must acknowledge that they were, in fact, Communists.
What the Khmer Rouge brought to Cambodia was in fact real Communism. There was no radical distinction, either conceptually or concretely, between the rule of the Khmer Rouge and that of Stalinism, Maoism, Castroism, or the North Korean regime. All Communist regimes follow strangely similar trajectories, barely colored by local traditions. In every case, these regimes seek to make a blank slate of the past and to forge a new humanity. In every case, the “rich,” intellectuals, and skeptics wind up exterminated. The Khmer Rouge rounded up urban and rural populations in agricultural communities based on precedents both Russian (the Kolkhozy) and Chinese (the popular communes), and they acted for the same ideological reasons and with the same result: famine. There is no such thing as real Communism without massacre, torture, concentration camps, gulags, or laogai. And if there has never been any such thing, then we must conclude that there could be no other outcome: Communist ideology leads necessarily to mass violence, because the masses do not want real Communism. This is as true in the rice fields of Cambodia as in the plains of Ukraine or under Cuban palms.
The trial of Duch and the eventual trial of the Band of Four are thus the first trials, on human rights grounds, of responsible Marxist officials from an officially Marxist, Leninist, or Maoist regime. Nazism’s trial took place in Nuremberg beginning in late 1945, and Japanese fascism’s in Tokyo the following year. But until now, we have had no trial for Communism, though real Communism killed or mutilated more victims than Nazism and Fascism combined. Communism’s trial has never taken place, outside the intellectual sphere, for two reasons. First, Communism enjoys a kind of ideological immunity because it claims to be on the side of progress. Second, Communists remain in power in Beijing, Pyongyang, Hanoi, and Havana. And in areas where they’ve lost power—as in the former Soviet Union—the Communists arranged their own immunity by converting themselves into social democrats, businessmen, or nationalist leaders.
The only currently possible and effective trial of Communism must therefore take place in Cambodia. But make no mistake: this is no mere trial of Cambodians by other Cambodians. In the Phnom Penh trial, real Communism is confronted with its victims. The trial reveals not only how useful Marxism is for claiming, seizing, and exercising power in absolute fashion, but also a strange characteristic of real Communism. No one seems willing to claim the mantle of Marxism, not even former leaders. The Khmer Rouge killed in Marx’s, Lenin’s, and Mao’s names, but they prefer to die as traitors to their own cause or to run away. This cowardice shows Marxism in a new light: Marxism is real, but it isn’t true, since no one believes in it.
Guy Sorman, a City Journal contributing editor, is the author of Empire of Lies: The Truth about China in the Twenty-First Century and other books. This article was translated by Alexis Cornel.
Searching for the Truth.
MEMORY & JUSTICE
“...a society cannot know itself if it does not have an accurate memory of its own history.”
Youk Chhang, Director
Documentation Center of Cambodia
66 Sihanouk Blvd.,
Phnom Penh, Cambodia
Forced Marriage as a Crime Against Humanity
Natalae Anderson
Rutgers School of Law 2011
DC-Cam Legal Associate Summer 2010
I. Historical Background
During the temporal jurisdiction of the ECCC, the Khmer Rouge (“KR”) systematically arranged marriages for men and women throughout Democratic Kampuchea (“DK”). Although some men arranged marriages with women of their choice by speaking with their village chief, most men and women had no choice as to their partner. Refusing to marry “could have resulted in torture, imprisonment or death.”[1]
These marriage ceremonies consisted of no fewer than three couples and could be as large as 160 couples. Generally, the village chief or a senior leader of the community would approach both parties and inform them that they were to be married and at the time and place the marriage would occur. Often, the marriage ceremony would be the first time the future spouses would meet. Parents and other family members were not allowed to participate in selecting the spouse or to attend the marriage ceremony. The Khmer Rouge maintained that parental authority was unnecessary because it “w[as] to be everyone’s ‘mother and father.’”[2]
Many atrocities were inflicted on the DK population during the KR regime’s rule, but not every atrocity is punishable under international criminal law. International law has increasingly recognized gender-based crimes such as rape and sexual slavery as crimes against humanity. Nevertheless, it is questionable whether these gender-based crimes capture the harm that forced marriage inflicted upon men and women during DK or if there is a gap in international law “necessitat[ing] a separate crime of forced marriage as an ‘other inhumane act.’”[3]
II. The Harms of Forced Marriage
Before the KR regime, arranging marriages was a family affair. Mothers and fathers went through great pains to find an appropriate spouse for their sons and daughters. Parents researched the age of potential spouses, their social status and other factors to carefully analyze the probable stability of the match. Marriage ceremonies lasted three days and were festive occasions with all of the bride and groom’s relatives and villagers celebrating together. Pre-KR arranged marriages stand in stark contrast to the forced marriages that took place under the KR regime. During the DK period, multiple couples were married at abrupt somber ceremonies without family present and generally with no forms of celebration following the event. Women and men who were forced into marriage were deprived of family input, consent and celebration.
Although many couples married during the DK “fe[lt] anger and resentment at being forced to marry,”[4] many also felt obligated to stay with their spouse after the fall of the KR. After making a formal commitment to be with their partner for life, many men and women faced what they perceived to be insurmountable cultural barriers. Couples were seen as married by the community and divorce was socially unacceptable. Other couples remained together because they believed it provided stability for the children that resulted from the forced wedlock. Still others, who found themselves with few resources following the collapse of the regime, resigned themselves to their marriages due to lack of financial resources and protection.
Even if men and women overcame the cultural difficulties and separated from their spouse after the fall of the KR, they still had to contend with the ongoing consequences of the forced marriage. One man learned from a friend that his wife from the DK era had a daughter who was his child. Fifteen years after the KR forced them to marry, the husband embarked on a trip to find his ex-wife and his daughter. After finding both, the man began to send his ex-wife money for his daughter. This arrangement created tension between him and his second wife.
Men and women who were forced to marry suffered many mental and psychological harms. Victims were: 1) Deprived “of the opportunity for consensual marriage . . . as a pivotal life decision;”[5] 2) submitted to violent or oppressively coercive measures to enter the marriage; 3) responsible for raising children resulting from the forced marriage; and 4) forced into an ongoing intimate relationship that affected their lives in various ways even if they separated after the fall of the KR.
III. The Elements of Forced Marriage
In Cambodia, forced marriage may be said to have occurred when “a perpetrator through his words or conduct, . . . [,] compel[led] a person by force, threat of force, or coercion to serve as a conjugal partner resulting in severe suffering, or . . . mental or psychological injury to the victim.”[6] Therefore, to demonstrate that forced marriage occurred the Prosecution must establish three elements: 1) force, threat of force or coercion; 2) a conjugal association; and 3) severe suffering, or mental or psychological injury to the victim.
A. Element 1: Compelled by Force, Threat of Force or Coercion
The Khmer Rouge controlled the country by severely punishing individuals for even minor infractions. In this environment, many people felt powerless to oppose KR orders. Although some people refused orders to marry multiple times, some of these same people eventually acquiesced. Others who refused were merely fortunate enough to avoid a punishment as severe as death. In this oppressive environment, many individuals undoubtedly agreed to marry out of fear. Therefore, one should consider the repressive environment that the KR created when establishing the element of coercion. Such an environment should be prima facie evidence that victims of forced marriage during the DK could not freely give consent.
In Prosecutor v. Kunarac, the International Criminal Tribunal for the Former Yugoslavia (ICTY) observed that some environmental factors are so coercive that victims are incapable of giving genuine consent.[7] In Kunarac, the accused were charged with enslavement and rape for holding a number of women captive for varying periods of time. The trial chamber broadly interpreted coercion as encompassing “most conduct which negates consent”[8] thus evaluating the victims’ ability to consent within the context of their surroundings.
In Prosecutor v. Kronjelac, the ICTY also recognized that coercive environments create a presumption of involuntariness.[9] After analyzing the detention conditions of non-Serb prisoners, the Appeals Chamber held that “a reasonable trier of fact should have arrived at the conclusion that the detainees’ general situation negated any possibility of free consent.”[10]
The ICTY firmly established that coercive environments deprive victims of the ability to freely give consent. The International Criminal Court (ICC) captured the ICTY’s interpretation of coercion in its Elements of Crimes, which includes force, threat of force or coercion as an element of rape as a crime against humanity, and also recognizes that rape can be committed by taking advantage of a coercive environment.
Still, not everyone married during DK was forced into their marital relationships. Because some individuals participated in arranging their own marriages, the defense can submit evidence of consent as an affirmative defense. Some couples were able to maneuver around the KR’s social constructs and were fortunate enough to arrange a marriage that was pleasing to both parties. “Some asked permission to marry someone of their own or a relative’s choosing . . . . Most significantly, in the first and last year of the regime, more family requests were granted than in the middle years of Democratic Kampuchea.”[11]
B. Element 2: A Conjugal Association
In the Cambodian context, a conjugal association was an exclusive marital relationship between two people resulting from a legally sanctioned ceremony performed by a state official. Proof of the union establishes the conjugal association element. In some cases, real evidence such as registries may be available. However, where such evidence is unavailable, testimony of witnesses and other relevant evidence can be relied upon. Because the marriages were often group weddings and were public formal ceremonies, relevant evidence should be readily available.
C. Element 3: Severe Suffering, or Mental or Psychological Injury to the Victim
Women and men who were forced to marry experienced an extreme range of emotions from anger to sadness. Many described the experience “as bitter as any other they suffered during the brutal regime.”[12] Some individuals were so emotionally overwhelmed by their forced marriage that they committed suicide after the ceremony.
The force and coercive measures that KR leaders employed to compel people to marry also caused victims’ severe suffering. Some who merely contemplated not consenting to their forced marriage were plagued with visions of torture or death. Others who resigned themselves to the ceremony still faced alarming intimidation. One woman tried to refuse the order to hold hands with her future husband during the wedding ceremony until KR soldiers pointed a gun at her. Issuing death threats, forcing people to witness violence, and the other coercive measures employed by KR leaders undoubtedly caused victims severe suffering and mental trauma.
Forced marriage violated individuals’ rights to autonomy and stripped them of the right to make what many would consider a life-changing decision, thus inflicting psychological injury on the victims. Because victims experienced a wide range of situations and endured different harms, the evidence establishing severe suffering, or mental or psychological injury to the victim will necessarily vary on a case-by-case basis.
D. Conclusion
These harms and elements illustrate that the crime of forced marriage in the Cambodian context is largely a non-sexual crime. It is not subsumed by any of the previously recognized gender-based crimes and therefore should be recognized as a separate crime. Examining the jurisprudence and history of previously recognized gender-based crimes reveals the gap in international criminal law between these crimes and forced marriage.
IV. Gender-Based Crimes Currently Punishable by International Tribunals
A. Rape as a crime against humanity[13]
Rape is the only gender-based crime punishable as a separate offense in ECCC law.[14] The International Criminal Tribunal for Rwanda (ICTR), the ICTY, the Special Court for Sierra Leone (SCSL) and the ICC also criminalize rape as a crime against humanity in their respective statutes. The tribunals’ definitions are broad enough to cover any type of sexual invasion of a victim’s body with any type of object.[15]
Rape is distinguishable from forced marriage as it took place during the DK. The SCSL noted in Sesay that forced marriage had “a distinct element from the crime of rape . . ., and vice versa. The offence of rape requires sexual penetration . . . .”[16] Rape requires a perpetrator to invade the body of a victim.
Even though the KR expected couples to consummate their relationship after marriage, not every couple followed their orders. One man, who considered himself lucky when his unit chief noticed that he was in love with a woman and arranged their marriage, described how he entered into an agreement with his wife not to have sex. “I fell in love with a widow who was two or three years older than me . . . . Unfortunately, after the marriage, I learned that she did not love me. She asked me not to have sex with her and I agreed.”[17] In these cases, the element of sexual penetration is missing. However, even where sexual penetration occurred following the marriage, rape still fails to capture the link between the perpetrator and victim of rape because it was not the KR who directly invaded the body of the wife, but the husband who often also had been forced into the marriage.
Therefore, the elements of rape fail to capture the crime of forced marriage as it took place during the DK because sexual penetration did not necessarily occur, the perpetrator-victim dynamic is missing even in cases where sexual penetration did occur and rape does not address the “non-sexual elements [of forced marriage] that are comparable violations of human dignity.”[18] Since rape does not capture the crime of forced marriage and no other sexual crimes fall within the jurisdiction of the ECCC, forced marriage must be charged as an other inhumane act (“OIA”).
B. Other Inhumane Acts
ECCC law does not list forced marriage as a separate crime against humanity, however it was charged in Case 002 by the Co-Investigating Judges in their September 15, 2010 closing order. [19] The Nuremberg Charter established the residual category of OIAs. Control Council Law No. 10, created to guide post-war crimes trials in the occupied zones in Germany, and the Tokyo Charter, created to prosecute Japanese for WWII crimes, both recognized the OIA category. Because “one would never be able to catch up with the imagination of future torturers who wished to satisfy their bestial instincts”[20] the residual category exists to capture those crimes against humanity that are not enumerated.
To satisfy the requisite elements of OIAs, the perpetrator must “commit an act of similar gravity and seriousness to the other crimes against humanity enumerated in the relevant instrument, with intent to cause that other inhumane act.”[21] When defining inhumane treatment or acts, the Geneva Convention[22] and scholars have lauded flexibility as opposed to rigid lists, but the category of OIAs has also run afoul of the principle of specificity because of its adaptive nature. International tribunals have helped to “rein in the imprecise and open-ended nature of this provision.”[23]
The trial chamber in Prosecutor v. Kayeshima articulated a standard for determining how an act qualifies as an OIA. The chamber observed that OIAs were “of similar gravity and seriousness to the enumerated acts” of the ICTR statute and that they were “acts or omissions that deliberately cause serious mental or physical suffering or injury or constitute a serious attack on human dignity.”[24] Although the chamber articulated a definition, it found the defendant not guilty of OIAs because the Prosecution failed to “particularise the nature of the acts” relied upon for the charge.[25]
In Akayesu, the ICTR found the accused criminally liable for OIAs. The Prosecution specified the following acts for the charge:
(i) the forced undressing of the wife of Tharcisse outside the bureau communal, after making her sit in the mud, as witnessed by Witness KK;
(ii) the forced undressing and public marching of Chantal naked at the bureau communal;
(iii) the forced undressing of Alexia, wife of Ntereye, and her two nieces Louise and Nishimwe, and the forcing of the women to perform exercises naked in public near the bureau communal.[26]
The trial chamber characterized all of these acts as sexual violence and concluded that sexual violence fell “within the scope of ‘other inhumane acts.’”[27]
International tribunals have recognized sexual slavery as an OIA. One can analyze whether forced marriage qualifies as an OIA by applying the elements set forth in Kayishema and by analyzing the jurisprudence of sexual slavery.
C. Sexual slavery as a crime against humanity
Neither the ICTY nor the ICTR criminalizes sexual slavery in their statutes. However, in Kunarac, where the accused forcibly detained several girls in different apartments and continually raped them, the ICTY charged the accused with enslavement and rape as a crime against humanity thus capturing the offense of sexual slavery.[28] Both of these crimes have also been charged by the ECCC in Case 002.[29]
The Rome Statute Article 7(1)(g)-2 lists sexual slavery as a crime against humanity. The elements are:
1. The perpetrator exercised any or all of the powers attaching to the right of ownership over one or more persons, such as by purchasing, selling, lending or bartering such a person or persons, or by imposing on them a similar deprivation of liberty.
2. The perpetrator caused such person or persons to engage in one or more acts of a sexual nature.[30]
The SCSL statute explicitly penalizes sexual slavery under Article 2(g). In the RUF case, the Trial Chamber found the accused Sesay, Kallon, and Gbao guilty of sexual slavery as a crime against humanity after finding that they held women against their will for varying periods of time and forced them to engage in sexual intercourse. Citing the ICTY’s judgment in Kunarac and its definition of enslavement, the trial chamber concluded that the following “indicia” were illustrative when examining whether sexual slavery took place: “control of someone’s movement, control of physical environment, psychological control, measures taken to prevent or deter escape, force, threat of force or coercion, duration, assertion of exclusivity, subjection to cruel treatment and abuse, control of sexuality and forced labour.”[31] Notably, the trial chamber declined to recognize forced marriage as a crime against humanity of other inhumane acts and held that sexual slavery subsumed forced marriage.
In the AFRC Case, also at the SCSL, the Prosecution argued that although forced marriage had sexual elements, it differed from sexual slavery because the perpetrator forced the woman to behave as a wife by performing non-sexual duties such as cooking, cleaning, laundry and rearing children. The Trial Chamber was not persuaded by the Prosecution’s argument and concluded that “the Prosecution did not adduce any evidence that forced marriage was a non-sexual crime.”[32]
The Appeals Chamber reversed the trial chamber’s decision.[33] Persuaded by the Prosecution’s argument, the Chamber held that forced marriage was not primarily a sexual crime and therefore could not be subsumed by sexual slavery. The Appeals Chamber highlighted the stigma that “Bush wives” face when trying to reintegrate into their communities. It also emphasized the non-sexual conjugal duties that rebel husbands forced their wives to perform. After detailing these distinctions, the Appeals Chamber described forced marriage as “a situation in which the perpetrator through his words or conduct, or those of someone for whose actions he is responsible, compels a person by force, threat of force, or coercion to serve as a conjugal partner resulting in severe suffering, or physical, mental or psychological injury to the victim.”[34]
The decision of the Appeals Chamber has been criticized for labeling the experiences of the women in Sierra Leone as forced marriage. One scholar stated that forced marriage was “a criminal misnomer that masked what, under international criminal law, was clearly a situation of sexual slavery.”[35] The decision has also been criticized for reinforcing stereotypes of women’s roles by defining cooking, cleaning, and other household duties of women as conjugal duties instead of forced labor.
Although the AFRC Appeals judgment is helpful for parsing out the elements of forced marriage, forced marriage as it took place during the DK is factually different from the forced marriage that occurred in Sierra Leone. Forced marriages in the Sierra Leone context were different for a number of reasons: (1) they were crimes usually perpetrated by the husband; (2) rape and sexual violence were major components of the martial relationship; (3) the marriage was not legally sanctioned; and (4) the husbands subjected the wives to forced labor. Because of these differences, the elements of sexual slavery arguably better capture the crime suffered by women in Sierra Leone, while the elements of forced marriage aptly capture the crime suffered by men and women forcibly married during the DK.
V. Nullum Crimen Sine Lege
A. Definition
The principle of nullum crimen sine lege (“nullum crimen”) dictates that to be prosecuted, an act must have “recognised as a crime entailing individual criminal responsibility” at the time that the acts took place.[36] To satisfy nullum crimen, “forced marriage” must meet three elements: (1) existence at the relevant time (1975-1979) in a manner providing for individual liability; in a form (2) sufficiently specific to render the imposition of criminal sanctions for the acts of the accused foreseeable; and have (3) been accessible to the particular accused.
1. Existence of the law at the relevant time
The Prosecution can establish whether a crime existed in customary law during the temporal jurisdiction of the court by examining traditional sources of law. These sources include international conventions, customs, “general principles of law recognized by civilized nations,” and judicial decisions.[37] Because customary law “takes time to develop” it is difficult to say exactly when a “norm has crystallized.”[38] Therefore, international instruments and jurisprudence occurring after the temporal jurisdiction of a court remain relevant for establishing a “period where customary law begins to develop.”[39]
2. Specificity and foreseeability
Specificity and foreseeability are closely associated. The law or provision outlining a crime must be sufficiently specific to ensure that an individual could foresee criminal liability for his conduct; however, “emphasis on conduct, rather than on the specific description of the offense in substantive criminal law, is of primary relevance.”[40] Nevertheless, nullum crimen cannot be violated simply because an individual’s conduct was moral or appalling. The moral or appalling nature of the conduct merely combats foreseeability challenges because “if the crime is serious it is more likely that the perpetrator foresaw that what he did would render him criminally responsible.”[41]
Specificity and foreseeability do not preclude “refining and elaborating upon, by way of construction, existing rules.”[42] In C.R. v. The United Kingdom,[43] the European Court of Human Rights found a man guilty of marital rape although at the time criminal liability did not exist for marital rape. The Court concluded that although their decision would change existing law, nullum crimen did not forbid “gradual clarification of the rules of criminal liability through judicial interpretation from case to case, provided that the resultant development is consistent with the essence of the offense and could reasonably be foreseen.”[44] C.R. illustrates that the development of the law should not necessarily be hampered by foreseeability where the “case law develops after the offence has taken place but before it is dealt with in court, or even when the behaviour is declared criminal for the first time in the case at hand.”[45]
3. Accessibility
In order to hold individuals criminally liable, they must have had sufficient notice that their conduct was prohibited. The Prosecution can establish accessibility by examining domestic and international jurisprudence as well as international instruments that existed at the relevant time period. It is not necessary that the perpetrator knew that his conduct was unlawful but only that information establishing the illegality of his conduct was accessible to him.
B. Forced Marriage and Nullum Crimen
Only the “legal ingredients” of the offense, not the specifically named crime of “forced marriage,” must have existed at the time the act was committed.[46] Therefore, the Prosecution must establish that being compelled by force, threat of force or coercion to marry was prohibited during the temporal jurisdiction of the ECCC.
1. Compelled by force, threat of force or coercion
All of the gender-based crimes illustrate the legal relevance of consent and the illegality of using force, threat of force or coercion to override an individual’s autonomy. Some scholars argue that the evolution of gender-based crimes shows a move from protecting women’s dignity and honor to a paradigm “based on broader principles of human dignity, autonomy, and consent.”[47] Comparing the text of the Geneva Convention with the ICC Statute reveals a “gradual clarification of the [elements] of criminal liability” for rape.[48]
Arguably, an individual’s freedom of choice and consent is curtailed by the power of the state. Citizens are not unfettered in all decision making. However, considering the intimate relationship between a husband and wife, the social importance placed on the marital relationship and the right to consensual marriage that is enshrined in many international human rights instruments, consent and autonomy are as implicated in forced marriage as in the previously discussed gender-based crimes. Examining the evolution of gender-based crimes establishes that a prohibition against using force, threat of force or coercion to override an individual’s autonomy existed prior to the temporal jurisdiction of the ECCC: thus satisfying the nullum crimen principle.
Although rape and sexual violence “have long been recognized as international crimes,”[49] the Nuremberg Charter lacked explicit prohibitions against any forms of sexual violence. It was not until the four allied powers created Control Council Law No. 10[50] to guide post-war crimes trials in the occupied zones in Germany that rape was listed as a crime against humanity.
The Tokyo Tribunal prosecuting Japanese for WWII crimes did not list rape as a crime in its charter; however, it did prosecute the rape of women and other civilians as an affront to family honor and inhumane treatment and prosecuted such gender-based crimes under the war crimes provision of the charter.
Following WWII, the Geneva Conventions were amended to provide better protection to civilian populations. The Geneva Convention IV of 1949 thus captures the international norms that were created as a result of the violence committed upon civilians during WWII. Article 27 of the Geneva Convention IV of 1949, which is universally binding on all countries and considered customary international law, prohibits rape. In 1977, two Additional Protocols were added to the Geneva Conventions, both of which explicitly prohibit rape.
The Geneva Conventions of 1949, the jurisprudence following WWII and the jurisprudence that subsequently came out of the international tribunals demonstrate that criminal liability for gender-based crimes existed prior to the ECCC’s temporal jurisdiction. Rape, a gender-based crime including protection of consent and autonomy, undoubtedly satisfies the nullum crimen requirements for this element of force marriage.
Although a legal definition for rape addressing the issue of consent did not exist until the ICTR’s decision in Akayesu,[51] there was a “refining and elaborating upon, by way of construction, existing rules” so that rape as a crime against humanity became not a violation of a woman’s dignity but a violent act committed against her in circumstances where consent could not genuinely be given.[52] Like C.R. and the marital exception for rape, rape embodying the issue of consent has evolved through jurisprudence occurring after the ECCC’s temporal jurisdiction. Nevertheless, the legal relevance of consent as it relates to individual autonomy is “consistent with the essence of rape.”[53]
2. Conjugal association and nullum crimen
The right to choose one’s spouse was embodied in many international human rights instruments prior to the temporal jurisdiction of the ECCC. Some scholars contend that charging forced marriage “cloud[s] important differences between forced marriages that amount to violations of international human rights law from those that constitute crimes against humanity.”[54] However, Antonio Cassese maintains that “[c]rimes against humanity [are] to a great extent predicated upon international human rights law.”[55] Because international human rights law provides clues to what constitutes a crime against humanity, surveying international human rights instruments that embody the right to choose one’s spouse helps to determine whether nullum crimen is satisfied.
“Marriage without consent of both parties has been acknowledged as a violation of international human rights law since at least the Universal Declaration on Human Rights 1948.”[56] The Universal Declaration of Human Rights (“UDHR”), long considered “a common standard of achievement for all peoples and all nations,”[57] frames the right to freely choose one’s spouse under Article 16.[58] The UDHR articulates a core set of fundamental rights and also spurred the creation of “60 international human rights instruments, which together constitute a comprehensive system of legally binding treaties for the promotion and protection of human rights.”[59] One of these legally binding treaties is the International Covenant on Civil and Political Rights (“ICCPR”) which, prior to 1975, also recognizes the right to choose one’s spouse. Article 23(3) states that “[n]o marriage shall be entered into without the free and full consent of the intending spouses.”[60]
The ICCPR has been overwhelmingly supported by a vast range of countries and many of its provisions are now considered to have customary international law status. However, some states consider certain provisions of the ICCPR as contentious. One of these provisions is Article 23. Several countries have expressed reservations against Article 23 but member parties have objected to these reservations.
The Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages (“Marriage Convention”)[61] Article 1(1) states that “[n]o marriage shall be legally entered into without the full and free consent of both parties, such consent to be expressed by them in person after due publicity and in the presence of the authority competent to solemnize the marriage and of witnesses, as prescribed by law.”[62] The Marriage Convention has yet to be signed by Cambodia. It entered into force in 1964. To date, only Bangladesh has entered a reservation that challenges “the full and free consent of both parties” clause.
The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) Article 16(1)(b) also guarantees the right to freely choose “a spouse and to enter into marriage only with . . . free and full consent.”[63] Although CEDAW was created specifically to protect the rights of women, it also reflects the right to consensual marriage generally. Many states, particularly those that practice arranged marriages, have entered reservations for Article 16. However, the majority of these states’ reservations were not entered against the right to consensual marriage, but to the other rights outlined in Article 16.
Analyzing these international human rights instruments, most of which entered into force before the temporal jurisdiction of the ECCC, one could argue that it was foreseeable and accessible to the KR that their conduct was prohibited by the international community. Although none of the instruments examined explicitly provide for criminal liability “it is not necessary for [] individual criminal responsibility of the accused to be explicitly stated in a convention for the provisions of the convention to entail individual criminal responsibility under customary international law.”[64] Moreover, the egregious nature of the crime—forcing two people, sometimes at the threat of death to enter into a lifelong partnership—further supports the foreseeability element. Nevertheless, questions remain about whether criminal liability for violating an individual’s right to freely choose one’s spouse existed during the temporal jurisdiction of the ECCC.
C. Conclusion
The nullum crimen barrier is a significant hurdle to surmount. It may be difficult for the Prosecution to establish that criminal liability existed for forced marriage during the temporal jurisdiction of the ECCC. Although the force, threat of force or coercion element of forced marriage should easily pass the nullum crimen test, it may be problematic to establish that individual criminal liability existed for non-consensual marriage at the relevant time. If the Prosecution can establish that criminal liability existed, the prohibition against non-consensual marriage should pass the foreseeability/specificity and accessibility elements of nullum crimen.
VI. Charging Forced Marriage as an Other Inhumane Act
Even if nullum crimen obstacles can be overcome, the Prosecution will have to combat arguments that forced marriage and sexual slavery are indistinguishable. In 2008, the ICC’s Pre-Trial Chamber I concluded that “sexual slavery also encompasses situations where women and girls are forced into “‘marriage’, domestic servitude or other forced labour involving compulsory sexual activity, including rape, by their captors.”[65] However, the Prosecution can legitimately address these critiques and potentially conflicting jurisprudence by pointing out the differences between forced marriage as it took place in Sierra Leone, Rwanda and Uganda, and forced marriage as it took place in Cambodia under the KR.
VIII. Conclusion
Survivors of forced marriage who were interviewed by the writer expressed that they believed that forced marriage should be a crime because marriages pre-KR were different from forced marriages during the DK. The survivors provided numerous reasons as to why: 1) during the KR period you could not deny their order to marry because denial could lead to death; 2) often you were forced to marry someone you had never met the very day that you were informed that you were getting married; and 3) after being forced to marry, you worked so hard and had to live separately that you rarely saw your spouse. These survivors have no knowledge of international criminal law and no knowledge of the ongoing dialogue surrounding sexual slavery and forced marriage; they are articulating their experience of the harms they have suffered.
See full report here:
[1] Kasumi, Gender-Based Violence During the Khmer Rouge Regime: Stories of Survivors from the Democratic Kampuchea (1975-1979), at 18 (2d ed. 2008).
[2] Khamboly Dy, A History of Democratic Kampuchea (1975-1979), at 2.
[3] AFRC Case, Case No. SCSL-2004-16-A, Judgment, ¶ 176 (Feb. 22, 2008).
[4] Bridgette A. Toy-Cronin, What is Forced Marriage? Towards a Definition of Forced Marriage as a Crime Against Humanity, 19 Colum. J. Gender & L. 539, 543 (2010).
[5] Id. at 585.
[6] AFRC Case, ¶ 195.
[7] Prosecutor v. Kunarac, Case No. IT-96-23-T & IT-96-23/1-T, Judgment (Int’l Crim. Trib. for the Former Yugoslavia Dec. 10, 1998).
[8] Id. ¶ 459.
[9] Prosecutor v. Krnojelac, Case No. IT-97-25-A, Judgment (Int’l Crim. Trib. for the Former Yugoslavia Sept. 17, 2003).
[10] Id. ¶ 191.
[11] Peg Levine, A Contextual Study into the Weddings and Births Under the Khmer Rouge: The Ritual Revolution 4 (2007).
[12] Toy-Cronin, supra note 4, at 554.
[13] Any enumerated crime against humanity must satisfy additional co-textual elements. The enumerated crime must also “be committed as part of a widespread or systematic attack directed against any civilian population, on national, political, ethnical, racial or religious grounds.” See Law on the Establishment of the Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed During the Period of Democratic Kampuchea art. 5.
[14] See id.
[15] Statute of the International Criminal Tribunal for Rwanda, art. 3(g) (1994); Statute for the International Criminal Tribunal for the Former Yugoslavia art. 5(g); Statute of the Special Court for Sierra Leone, art. 2(g), Aug. 14, 2000; Rome Statute of the International Criminal Court, art. 7(1)(g)-1, adopted July 17, 1998; Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Judgment, ¶ 598 (Sept. 2, 1998).
[16] RUF Case, Case No. SCSL-04-15-T, Judgment, ¶ 2306 (Mar. 2, 2009).
[17] Kasumi, supra note 1, at 45.
[18] Neha Jain, Forced Marriage as a Crime Against Humanity, 6 J. Int’l Crim. Just. 1013, 1021 (2008).
[19] ECCC Press Release, available at http://www.eccc.gov.kh/english/cabinet/press/169/ECCC_OCIJ_PR_16_Sep_2010%28En%29.pdf.
[20] Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Commentary), art. 23, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135 [hereinafter GC Commentary].
[21] See Prosecutor v. Kayishema, Case No. ICTR-95-1, Judgment, ¶ 154 (May 21, 1999).
[22] GC Commentary, art. 3 (“It is always dangerous to try to go into too much detail – especially in this domain.”).
[23] Kriangsak Kittichaisaree, International Criminal Law 127 (2001).
[24] Kayishema, Case No. ICTR-95-1 at ¶ 151 (May 21, 1999).
[25] Id ¶ 149, 586-87.
[26] Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Judgment, ¶ 697 (Sept. 2, 1998).
[27] Id. ¶ 688.
[28] Prosecutor v. Kunarac, Case No. IT-96-23-T & IT-96-23/1-T, Judgment (Int’l Crim. Trib. for the Former Yugoslavia Dec. 10, 1998).
[29] ECCC Press Release, available at http://www.eccc.gov.kh/english/cabinet/press/169/ECCC_OCIJ_PR_16_Sep_2010%28En%29.pdf.
[30] Although the ICC has indicted people for the crime of sexual slavery no judgment or jurisprudence has yet come out of the indictments. The warrants of arrest for Harun (May 1, 2007), Kushayb (May 1, 2007) and Katanga and Chui (Sept. 30, 2008) include a charge of sexual slavery. International Criminal Court, All Cases, ICC, http://www.icc-cpi.int/Menus/ICC/Situations+and+Cases/Cases/.
[31] RUF Case, Case No. SCSL-04-15-T at ¶ 160.
[32] Id. ¶ 176.
[33] AFRC Case, Case No. SCSL-2004-16-A, Judgment (Feb. 22, 2008).
[34] Id. ¶ 196.
[35] Karine Belair, Unearthing the Customary Law Foundations of “Forced Marriages” During Sierra Leone’s Civil War: The Possible Impact of International Criminal Law on Customary Marriage and Women’s Rights in Post-Conflict Sierra Leone, 15 Colum. J. Gender & L. 551, 553 (2006).
[36] Prosecutor v. Norman, Case No. SCSL-2004-14-AR72(E), Decision on Preliminary Motion Based on Lack of Jurisdiction (Child Soldiers), ¶ 8 (May 31, 2004).
[37] See ICJ Statute, Article 38(1).
[38] Antonio Cassese, International Criminal Law 16 (2d ed. 2008).
[39] Prosecutor v. Norman, Case No. SCSL-2004-14-AR72(E), Decision on Preliminary Motion Based on Lack of Jurisdiction (Child Soldiers), ¶ 50 (May 31, 2004).
[40] Prosecutor v. Norman, Case No. SCSL-2004-14-AR72(E), Decision on Preliminary Motion Based on Lack of Jurisdiction (Child Soldiers), ¶ 25 (May 31, 2004).
[41] Rethinking International Criminal Law: The Substantive Part 56 (Olaoluwa Olusanya ed., 2007) [hereinafter Rethinking].
[42] Cassese, supra note 39, at 44.
[43] Rethinking, supra note 43, at 56.
[44] C.R. v. the United Kingdom, [1995] ECHR 20190/92, ¶ 34 (1995).
[45] Rethinking, supra note 43, at 55.
[46] Cassese, supra note 39, at 46.
[47] Kristen Boon, Rape and Forced Pregnancy Under the ICC Statute: Human Dignity, Autonomy, and Consent, 32 Colum. Hum. Rts. L. Rev. 625, 674-75 (2001).
[48] Sunday Times v. the United Kingdom, [1979] ECHR 6538/74, ¶ 34 (1979).
Note that although rape has existed as a criminal offence before the Nuremberg Charter, the elements of rape were not outlined until Akayesu. Gong-Gershowitz, Forced Marriage: A New Crime Against Humanity, 8 Northwestern University Journal of International Human Rights 53, 58 (2009).
[49] Boon, supra note 49, at 674-75.
[50] Punishment of Persons Guilty of War Crimes, Crimes Against Peace and Crimes Against Humanity, Allied Control Council Law No. 10, art. II(1)(c) (Dec. 10, 1945). Article II(1)(c) of Control Council Law No. 10 [hereinafter Control Council Law], http://avalon.law.yale.edu/imt/imt10.asp.
[51] Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Judgment (Sept. 2, 1998).
[52] Id; Cassese, supra note 39, at 44.
[53] See Sunday Times v. the United Kingdom, [1979] ECHR 6538/74, ¶ 34 (1979).
[54] Gong-Gershowitz, supra note 50, at 70.
[55] Cassese, supra note 39, at 99.
[56] Toy-Cronin, supra note 4, at 563.
[57] United Nations, Universal Declaration of Human Rights, UN Human Rights Office of the High Commissioner for Human Rights, http://www.ohchr.org/en/udhr/pages/introduction.aspx.
[58] Universal Declaration of Human Rights art. 16, adopted Dec. 10, 1948, http://www.un.org/en/documents/udhr/.
[59] Id.
[60] ICCPR art. 23(3), opened for signature Dec. 19, 1966, http://www2.ohchr.org/english/law/ccpr.htm. Cambodia signed the treaty on October 17, 1980, after the temporal jurisdiction of the ECCC. Note that although Cambodia signed in 1980, it didn’t accede to the ICCPR until May 26, 1992.
[61] Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages, art. 1(1), opened for signature Nov. 7, 1962, 521 U.N.T.S. 231 (entered into force Dec. 19, 1964.
[62] Id.
[63] CEDAW, art. 16(1)(b), adopted Dec. 18, 1979, 1249 U.N.T.S. 13 (entered into force Sept. 3, 1981), http://www.un.org/womenwatch/daw/cedaw/text/econvention.htm.
[64] Prosecutor v. Kayishema, Case No. ICTR-95-1, Judgment, ¶ 149 (May 21, 1999).
[65] Prosecutor v. Katanga, Case No. ICC-01/04-01/07, Decision on the confirmation of charges, ¶ 431(Sept. 30, 2008).
Independently Searching for the Truth since 1997.
MEMORY & JUSTICE
“...a society cannot know itself if it does not have an accurate memory of its own history.”
Youk Chhang, Director
Documentation Center of Cambodia
66 Sihanouk Blvd.,
Phnom Penh, Cambodia
Rutgers School of Law 2011
DC-Cam Legal Associate Summer 2010
I. Historical Background
During the temporal jurisdiction of the ECCC, the Khmer Rouge (“KR”) systematically arranged marriages for men and women throughout Democratic Kampuchea (“DK”). Although some men arranged marriages with women of their choice by speaking with their village chief, most men and women had no choice as to their partner. Refusing to marry “could have resulted in torture, imprisonment or death.”[1]
These marriage ceremonies consisted of no fewer than three couples and could be as large as 160 couples. Generally, the village chief or a senior leader of the community would approach both parties and inform them that they were to be married and at the time and place the marriage would occur. Often, the marriage ceremony would be the first time the future spouses would meet. Parents and other family members were not allowed to participate in selecting the spouse or to attend the marriage ceremony. The Khmer Rouge maintained that parental authority was unnecessary because it “w[as] to be everyone’s ‘mother and father.’”[2]
Many atrocities were inflicted on the DK population during the KR regime’s rule, but not every atrocity is punishable under international criminal law. International law has increasingly recognized gender-based crimes such as rape and sexual slavery as crimes against humanity. Nevertheless, it is questionable whether these gender-based crimes capture the harm that forced marriage inflicted upon men and women during DK or if there is a gap in international law “necessitat[ing] a separate crime of forced marriage as an ‘other inhumane act.’”[3]
II. The Harms of Forced Marriage
Before the KR regime, arranging marriages was a family affair. Mothers and fathers went through great pains to find an appropriate spouse for their sons and daughters. Parents researched the age of potential spouses, their social status and other factors to carefully analyze the probable stability of the match. Marriage ceremonies lasted three days and were festive occasions with all of the bride and groom’s relatives and villagers celebrating together. Pre-KR arranged marriages stand in stark contrast to the forced marriages that took place under the KR regime. During the DK period, multiple couples were married at abrupt somber ceremonies without family present and generally with no forms of celebration following the event. Women and men who were forced into marriage were deprived of family input, consent and celebration.
Although many couples married during the DK “fe[lt] anger and resentment at being forced to marry,”[4] many also felt obligated to stay with their spouse after the fall of the KR. After making a formal commitment to be with their partner for life, many men and women faced what they perceived to be insurmountable cultural barriers. Couples were seen as married by the community and divorce was socially unacceptable. Other couples remained together because they believed it provided stability for the children that resulted from the forced wedlock. Still others, who found themselves with few resources following the collapse of the regime, resigned themselves to their marriages due to lack of financial resources and protection.
Even if men and women overcame the cultural difficulties and separated from their spouse after the fall of the KR, they still had to contend with the ongoing consequences of the forced marriage. One man learned from a friend that his wife from the DK era had a daughter who was his child. Fifteen years after the KR forced them to marry, the husband embarked on a trip to find his ex-wife and his daughter. After finding both, the man began to send his ex-wife money for his daughter. This arrangement created tension between him and his second wife.
Men and women who were forced to marry suffered many mental and psychological harms. Victims were: 1) Deprived “of the opportunity for consensual marriage . . . as a pivotal life decision;”[5] 2) submitted to violent or oppressively coercive measures to enter the marriage; 3) responsible for raising children resulting from the forced marriage; and 4) forced into an ongoing intimate relationship that affected their lives in various ways even if they separated after the fall of the KR.
III. The Elements of Forced Marriage
In Cambodia, forced marriage may be said to have occurred when “a perpetrator through his words or conduct, . . . [,] compel[led] a person by force, threat of force, or coercion to serve as a conjugal partner resulting in severe suffering, or . . . mental or psychological injury to the victim.”[6] Therefore, to demonstrate that forced marriage occurred the Prosecution must establish three elements: 1) force, threat of force or coercion; 2) a conjugal association; and 3) severe suffering, or mental or psychological injury to the victim.
A. Element 1: Compelled by Force, Threat of Force or Coercion
The Khmer Rouge controlled the country by severely punishing individuals for even minor infractions. In this environment, many people felt powerless to oppose KR orders. Although some people refused orders to marry multiple times, some of these same people eventually acquiesced. Others who refused were merely fortunate enough to avoid a punishment as severe as death. In this oppressive environment, many individuals undoubtedly agreed to marry out of fear. Therefore, one should consider the repressive environment that the KR created when establishing the element of coercion. Such an environment should be prima facie evidence that victims of forced marriage during the DK could not freely give consent.
In Prosecutor v. Kunarac, the International Criminal Tribunal for the Former Yugoslavia (ICTY) observed that some environmental factors are so coercive that victims are incapable of giving genuine consent.[7] In Kunarac, the accused were charged with enslavement and rape for holding a number of women captive for varying periods of time. The trial chamber broadly interpreted coercion as encompassing “most conduct which negates consent”[8] thus evaluating the victims’ ability to consent within the context of their surroundings.
In Prosecutor v. Kronjelac, the ICTY also recognized that coercive environments create a presumption of involuntariness.[9] After analyzing the detention conditions of non-Serb prisoners, the Appeals Chamber held that “a reasonable trier of fact should have arrived at the conclusion that the detainees’ general situation negated any possibility of free consent.”[10]
The ICTY firmly established that coercive environments deprive victims of the ability to freely give consent. The International Criminal Court (ICC) captured the ICTY’s interpretation of coercion in its Elements of Crimes, which includes force, threat of force or coercion as an element of rape as a crime against humanity, and also recognizes that rape can be committed by taking advantage of a coercive environment.
Still, not everyone married during DK was forced into their marital relationships. Because some individuals participated in arranging their own marriages, the defense can submit evidence of consent as an affirmative defense. Some couples were able to maneuver around the KR’s social constructs and were fortunate enough to arrange a marriage that was pleasing to both parties. “Some asked permission to marry someone of their own or a relative’s choosing . . . . Most significantly, in the first and last year of the regime, more family requests were granted than in the middle years of Democratic Kampuchea.”[11]
B. Element 2: A Conjugal Association
In the Cambodian context, a conjugal association was an exclusive marital relationship between two people resulting from a legally sanctioned ceremony performed by a state official. Proof of the union establishes the conjugal association element. In some cases, real evidence such as registries may be available. However, where such evidence is unavailable, testimony of witnesses and other relevant evidence can be relied upon. Because the marriages were often group weddings and were public formal ceremonies, relevant evidence should be readily available.
C. Element 3: Severe Suffering, or Mental or Psychological Injury to the Victim
Women and men who were forced to marry experienced an extreme range of emotions from anger to sadness. Many described the experience “as bitter as any other they suffered during the brutal regime.”[12] Some individuals were so emotionally overwhelmed by their forced marriage that they committed suicide after the ceremony.
The force and coercive measures that KR leaders employed to compel people to marry also caused victims’ severe suffering. Some who merely contemplated not consenting to their forced marriage were plagued with visions of torture or death. Others who resigned themselves to the ceremony still faced alarming intimidation. One woman tried to refuse the order to hold hands with her future husband during the wedding ceremony until KR soldiers pointed a gun at her. Issuing death threats, forcing people to witness violence, and the other coercive measures employed by KR leaders undoubtedly caused victims severe suffering and mental trauma.
Forced marriage violated individuals’ rights to autonomy and stripped them of the right to make what many would consider a life-changing decision, thus inflicting psychological injury on the victims. Because victims experienced a wide range of situations and endured different harms, the evidence establishing severe suffering, or mental or psychological injury to the victim will necessarily vary on a case-by-case basis.
D. Conclusion
These harms and elements illustrate that the crime of forced marriage in the Cambodian context is largely a non-sexual crime. It is not subsumed by any of the previously recognized gender-based crimes and therefore should be recognized as a separate crime. Examining the jurisprudence and history of previously recognized gender-based crimes reveals the gap in international criminal law between these crimes and forced marriage.
IV. Gender-Based Crimes Currently Punishable by International Tribunals
A. Rape as a crime against humanity[13]
Rape is the only gender-based crime punishable as a separate offense in ECCC law.[14] The International Criminal Tribunal for Rwanda (ICTR), the ICTY, the Special Court for Sierra Leone (SCSL) and the ICC also criminalize rape as a crime against humanity in their respective statutes. The tribunals’ definitions are broad enough to cover any type of sexual invasion of a victim’s body with any type of object.[15]
Rape is distinguishable from forced marriage as it took place during the DK. The SCSL noted in Sesay that forced marriage had “a distinct element from the crime of rape . . ., and vice versa. The offence of rape requires sexual penetration . . . .”[16] Rape requires a perpetrator to invade the body of a victim.
Even though the KR expected couples to consummate their relationship after marriage, not every couple followed their orders. One man, who considered himself lucky when his unit chief noticed that he was in love with a woman and arranged their marriage, described how he entered into an agreement with his wife not to have sex. “I fell in love with a widow who was two or three years older than me . . . . Unfortunately, after the marriage, I learned that she did not love me. She asked me not to have sex with her and I agreed.”[17] In these cases, the element of sexual penetration is missing. However, even where sexual penetration occurred following the marriage, rape still fails to capture the link between the perpetrator and victim of rape because it was not the KR who directly invaded the body of the wife, but the husband who often also had been forced into the marriage.
Therefore, the elements of rape fail to capture the crime of forced marriage as it took place during the DK because sexual penetration did not necessarily occur, the perpetrator-victim dynamic is missing even in cases where sexual penetration did occur and rape does not address the “non-sexual elements [of forced marriage] that are comparable violations of human dignity.”[18] Since rape does not capture the crime of forced marriage and no other sexual crimes fall within the jurisdiction of the ECCC, forced marriage must be charged as an other inhumane act (“OIA”).
B. Other Inhumane Acts
ECCC law does not list forced marriage as a separate crime against humanity, however it was charged in Case 002 by the Co-Investigating Judges in their September 15, 2010 closing order. [19] The Nuremberg Charter established the residual category of OIAs. Control Council Law No. 10, created to guide post-war crimes trials in the occupied zones in Germany, and the Tokyo Charter, created to prosecute Japanese for WWII crimes, both recognized the OIA category. Because “one would never be able to catch up with the imagination of future torturers who wished to satisfy their bestial instincts”[20] the residual category exists to capture those crimes against humanity that are not enumerated.
To satisfy the requisite elements of OIAs, the perpetrator must “commit an act of similar gravity and seriousness to the other crimes against humanity enumerated in the relevant instrument, with intent to cause that other inhumane act.”[21] When defining inhumane treatment or acts, the Geneva Convention[22] and scholars have lauded flexibility as opposed to rigid lists, but the category of OIAs has also run afoul of the principle of specificity because of its adaptive nature. International tribunals have helped to “rein in the imprecise and open-ended nature of this provision.”[23]
The trial chamber in Prosecutor v. Kayeshima articulated a standard for determining how an act qualifies as an OIA. The chamber observed that OIAs were “of similar gravity and seriousness to the enumerated acts” of the ICTR statute and that they were “acts or omissions that deliberately cause serious mental or physical suffering or injury or constitute a serious attack on human dignity.”[24] Although the chamber articulated a definition, it found the defendant not guilty of OIAs because the Prosecution failed to “particularise the nature of the acts” relied upon for the charge.[25]
In Akayesu, the ICTR found the accused criminally liable for OIAs. The Prosecution specified the following acts for the charge:
(i) the forced undressing of the wife of Tharcisse outside the bureau communal, after making her sit in the mud, as witnessed by Witness KK;
(ii) the forced undressing and public marching of Chantal naked at the bureau communal;
(iii) the forced undressing of Alexia, wife of Ntereye, and her two nieces Louise and Nishimwe, and the forcing of the women to perform exercises naked in public near the bureau communal.[26]
The trial chamber characterized all of these acts as sexual violence and concluded that sexual violence fell “within the scope of ‘other inhumane acts.’”[27]
International tribunals have recognized sexual slavery as an OIA. One can analyze whether forced marriage qualifies as an OIA by applying the elements set forth in Kayishema and by analyzing the jurisprudence of sexual slavery.
C. Sexual slavery as a crime against humanity
Neither the ICTY nor the ICTR criminalizes sexual slavery in their statutes. However, in Kunarac, where the accused forcibly detained several girls in different apartments and continually raped them, the ICTY charged the accused with enslavement and rape as a crime against humanity thus capturing the offense of sexual slavery.[28] Both of these crimes have also been charged by the ECCC in Case 002.[29]
The Rome Statute Article 7(1)(g)-2 lists sexual slavery as a crime against humanity. The elements are:
1. The perpetrator exercised any or all of the powers attaching to the right of ownership over one or more persons, such as by purchasing, selling, lending or bartering such a person or persons, or by imposing on them a similar deprivation of liberty.
2. The perpetrator caused such person or persons to engage in one or more acts of a sexual nature.[30]
The SCSL statute explicitly penalizes sexual slavery under Article 2(g). In the RUF case, the Trial Chamber found the accused Sesay, Kallon, and Gbao guilty of sexual slavery as a crime against humanity after finding that they held women against their will for varying periods of time and forced them to engage in sexual intercourse. Citing the ICTY’s judgment in Kunarac and its definition of enslavement, the trial chamber concluded that the following “indicia” were illustrative when examining whether sexual slavery took place: “control of someone’s movement, control of physical environment, psychological control, measures taken to prevent or deter escape, force, threat of force or coercion, duration, assertion of exclusivity, subjection to cruel treatment and abuse, control of sexuality and forced labour.”[31] Notably, the trial chamber declined to recognize forced marriage as a crime against humanity of other inhumane acts and held that sexual slavery subsumed forced marriage.
In the AFRC Case, also at the SCSL, the Prosecution argued that although forced marriage had sexual elements, it differed from sexual slavery because the perpetrator forced the woman to behave as a wife by performing non-sexual duties such as cooking, cleaning, laundry and rearing children. The Trial Chamber was not persuaded by the Prosecution’s argument and concluded that “the Prosecution did not adduce any evidence that forced marriage was a non-sexual crime.”[32]
The Appeals Chamber reversed the trial chamber’s decision.[33] Persuaded by the Prosecution’s argument, the Chamber held that forced marriage was not primarily a sexual crime and therefore could not be subsumed by sexual slavery. The Appeals Chamber highlighted the stigma that “Bush wives” face when trying to reintegrate into their communities. It also emphasized the non-sexual conjugal duties that rebel husbands forced their wives to perform. After detailing these distinctions, the Appeals Chamber described forced marriage as “a situation in which the perpetrator through his words or conduct, or those of someone for whose actions he is responsible, compels a person by force, threat of force, or coercion to serve as a conjugal partner resulting in severe suffering, or physical, mental or psychological injury to the victim.”[34]
The decision of the Appeals Chamber has been criticized for labeling the experiences of the women in Sierra Leone as forced marriage. One scholar stated that forced marriage was “a criminal misnomer that masked what, under international criminal law, was clearly a situation of sexual slavery.”[35] The decision has also been criticized for reinforcing stereotypes of women’s roles by defining cooking, cleaning, and other household duties of women as conjugal duties instead of forced labor.
Although the AFRC Appeals judgment is helpful for parsing out the elements of forced marriage, forced marriage as it took place during the DK is factually different from the forced marriage that occurred in Sierra Leone. Forced marriages in the Sierra Leone context were different for a number of reasons: (1) they were crimes usually perpetrated by the husband; (2) rape and sexual violence were major components of the martial relationship; (3) the marriage was not legally sanctioned; and (4) the husbands subjected the wives to forced labor. Because of these differences, the elements of sexual slavery arguably better capture the crime suffered by women in Sierra Leone, while the elements of forced marriage aptly capture the crime suffered by men and women forcibly married during the DK.
V. Nullum Crimen Sine Lege
A. Definition
The principle of nullum crimen sine lege (“nullum crimen”) dictates that to be prosecuted, an act must have “recognised as a crime entailing individual criminal responsibility” at the time that the acts took place.[36] To satisfy nullum crimen, “forced marriage” must meet three elements: (1) existence at the relevant time (1975-1979) in a manner providing for individual liability; in a form (2) sufficiently specific to render the imposition of criminal sanctions for the acts of the accused foreseeable; and have (3) been accessible to the particular accused.
1. Existence of the law at the relevant time
The Prosecution can establish whether a crime existed in customary law during the temporal jurisdiction of the court by examining traditional sources of law. These sources include international conventions, customs, “general principles of law recognized by civilized nations,” and judicial decisions.[37] Because customary law “takes time to develop” it is difficult to say exactly when a “norm has crystallized.”[38] Therefore, international instruments and jurisprudence occurring after the temporal jurisdiction of a court remain relevant for establishing a “period where customary law begins to develop.”[39]
2. Specificity and foreseeability
Specificity and foreseeability are closely associated. The law or provision outlining a crime must be sufficiently specific to ensure that an individual could foresee criminal liability for his conduct; however, “emphasis on conduct, rather than on the specific description of the offense in substantive criminal law, is of primary relevance.”[40] Nevertheless, nullum crimen cannot be violated simply because an individual’s conduct was moral or appalling. The moral or appalling nature of the conduct merely combats foreseeability challenges because “if the crime is serious it is more likely that the perpetrator foresaw that what he did would render him criminally responsible.”[41]
Specificity and foreseeability do not preclude “refining and elaborating upon, by way of construction, existing rules.”[42] In C.R. v. The United Kingdom,[43] the European Court of Human Rights found a man guilty of marital rape although at the time criminal liability did not exist for marital rape. The Court concluded that although their decision would change existing law, nullum crimen did not forbid “gradual clarification of the rules of criminal liability through judicial interpretation from case to case, provided that the resultant development is consistent with the essence of the offense and could reasonably be foreseen.”[44] C.R. illustrates that the development of the law should not necessarily be hampered by foreseeability where the “case law develops after the offence has taken place but before it is dealt with in court, or even when the behaviour is declared criminal for the first time in the case at hand.”[45]
3. Accessibility
In order to hold individuals criminally liable, they must have had sufficient notice that their conduct was prohibited. The Prosecution can establish accessibility by examining domestic and international jurisprudence as well as international instruments that existed at the relevant time period. It is not necessary that the perpetrator knew that his conduct was unlawful but only that information establishing the illegality of his conduct was accessible to him.
B. Forced Marriage and Nullum Crimen
Only the “legal ingredients” of the offense, not the specifically named crime of “forced marriage,” must have existed at the time the act was committed.[46] Therefore, the Prosecution must establish that being compelled by force, threat of force or coercion to marry was prohibited during the temporal jurisdiction of the ECCC.
1. Compelled by force, threat of force or coercion
All of the gender-based crimes illustrate the legal relevance of consent and the illegality of using force, threat of force or coercion to override an individual’s autonomy. Some scholars argue that the evolution of gender-based crimes shows a move from protecting women’s dignity and honor to a paradigm “based on broader principles of human dignity, autonomy, and consent.”[47] Comparing the text of the Geneva Convention with the ICC Statute reveals a “gradual clarification of the [elements] of criminal liability” for rape.[48]
Arguably, an individual’s freedom of choice and consent is curtailed by the power of the state. Citizens are not unfettered in all decision making. However, considering the intimate relationship between a husband and wife, the social importance placed on the marital relationship and the right to consensual marriage that is enshrined in many international human rights instruments, consent and autonomy are as implicated in forced marriage as in the previously discussed gender-based crimes. Examining the evolution of gender-based crimes establishes that a prohibition against using force, threat of force or coercion to override an individual’s autonomy existed prior to the temporal jurisdiction of the ECCC: thus satisfying the nullum crimen principle.
Although rape and sexual violence “have long been recognized as international crimes,”[49] the Nuremberg Charter lacked explicit prohibitions against any forms of sexual violence. It was not until the four allied powers created Control Council Law No. 10[50] to guide post-war crimes trials in the occupied zones in Germany that rape was listed as a crime against humanity.
The Tokyo Tribunal prosecuting Japanese for WWII crimes did not list rape as a crime in its charter; however, it did prosecute the rape of women and other civilians as an affront to family honor and inhumane treatment and prosecuted such gender-based crimes under the war crimes provision of the charter.
Following WWII, the Geneva Conventions were amended to provide better protection to civilian populations. The Geneva Convention IV of 1949 thus captures the international norms that were created as a result of the violence committed upon civilians during WWII. Article 27 of the Geneva Convention IV of 1949, which is universally binding on all countries and considered customary international law, prohibits rape. In 1977, two Additional Protocols were added to the Geneva Conventions, both of which explicitly prohibit rape.
The Geneva Conventions of 1949, the jurisprudence following WWII and the jurisprudence that subsequently came out of the international tribunals demonstrate that criminal liability for gender-based crimes existed prior to the ECCC’s temporal jurisdiction. Rape, a gender-based crime including protection of consent and autonomy, undoubtedly satisfies the nullum crimen requirements for this element of force marriage.
Although a legal definition for rape addressing the issue of consent did not exist until the ICTR’s decision in Akayesu,[51] there was a “refining and elaborating upon, by way of construction, existing rules” so that rape as a crime against humanity became not a violation of a woman’s dignity but a violent act committed against her in circumstances where consent could not genuinely be given.[52] Like C.R. and the marital exception for rape, rape embodying the issue of consent has evolved through jurisprudence occurring after the ECCC’s temporal jurisdiction. Nevertheless, the legal relevance of consent as it relates to individual autonomy is “consistent with the essence of rape.”[53]
2. Conjugal association and nullum crimen
The right to choose one’s spouse was embodied in many international human rights instruments prior to the temporal jurisdiction of the ECCC. Some scholars contend that charging forced marriage “cloud[s] important differences between forced marriages that amount to violations of international human rights law from those that constitute crimes against humanity.”[54] However, Antonio Cassese maintains that “[c]rimes against humanity [are] to a great extent predicated upon international human rights law.”[55] Because international human rights law provides clues to what constitutes a crime against humanity, surveying international human rights instruments that embody the right to choose one’s spouse helps to determine whether nullum crimen is satisfied.
“Marriage without consent of both parties has been acknowledged as a violation of international human rights law since at least the Universal Declaration on Human Rights 1948.”[56] The Universal Declaration of Human Rights (“UDHR”), long considered “a common standard of achievement for all peoples and all nations,”[57] frames the right to freely choose one’s spouse under Article 16.[58] The UDHR articulates a core set of fundamental rights and also spurred the creation of “60 international human rights instruments, which together constitute a comprehensive system of legally binding treaties for the promotion and protection of human rights.”[59] One of these legally binding treaties is the International Covenant on Civil and Political Rights (“ICCPR”) which, prior to 1975, also recognizes the right to choose one’s spouse. Article 23(3) states that “[n]o marriage shall be entered into without the free and full consent of the intending spouses.”[60]
The ICCPR has been overwhelmingly supported by a vast range of countries and many of its provisions are now considered to have customary international law status. However, some states consider certain provisions of the ICCPR as contentious. One of these provisions is Article 23. Several countries have expressed reservations against Article 23 but member parties have objected to these reservations.
The Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages (“Marriage Convention”)[61] Article 1(1) states that “[n]o marriage shall be legally entered into without the full and free consent of both parties, such consent to be expressed by them in person after due publicity and in the presence of the authority competent to solemnize the marriage and of witnesses, as prescribed by law.”[62] The Marriage Convention has yet to be signed by Cambodia. It entered into force in 1964. To date, only Bangladesh has entered a reservation that challenges “the full and free consent of both parties” clause.
The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) Article 16(1)(b) also guarantees the right to freely choose “a spouse and to enter into marriage only with . . . free and full consent.”[63] Although CEDAW was created specifically to protect the rights of women, it also reflects the right to consensual marriage generally. Many states, particularly those that practice arranged marriages, have entered reservations for Article 16. However, the majority of these states’ reservations were not entered against the right to consensual marriage, but to the other rights outlined in Article 16.
Analyzing these international human rights instruments, most of which entered into force before the temporal jurisdiction of the ECCC, one could argue that it was foreseeable and accessible to the KR that their conduct was prohibited by the international community. Although none of the instruments examined explicitly provide for criminal liability “it is not necessary for [] individual criminal responsibility of the accused to be explicitly stated in a convention for the provisions of the convention to entail individual criminal responsibility under customary international law.”[64] Moreover, the egregious nature of the crime—forcing two people, sometimes at the threat of death to enter into a lifelong partnership—further supports the foreseeability element. Nevertheless, questions remain about whether criminal liability for violating an individual’s right to freely choose one’s spouse existed during the temporal jurisdiction of the ECCC.
C. Conclusion
The nullum crimen barrier is a significant hurdle to surmount. It may be difficult for the Prosecution to establish that criminal liability existed for forced marriage during the temporal jurisdiction of the ECCC. Although the force, threat of force or coercion element of forced marriage should easily pass the nullum crimen test, it may be problematic to establish that individual criminal liability existed for non-consensual marriage at the relevant time. If the Prosecution can establish that criminal liability existed, the prohibition against non-consensual marriage should pass the foreseeability/specificity and accessibility elements of nullum crimen.
VI. Charging Forced Marriage as an Other Inhumane Act
Even if nullum crimen obstacles can be overcome, the Prosecution will have to combat arguments that forced marriage and sexual slavery are indistinguishable. In 2008, the ICC’s Pre-Trial Chamber I concluded that “sexual slavery also encompasses situations where women and girls are forced into “‘marriage’, domestic servitude or other forced labour involving compulsory sexual activity, including rape, by their captors.”[65] However, the Prosecution can legitimately address these critiques and potentially conflicting jurisprudence by pointing out the differences between forced marriage as it took place in Sierra Leone, Rwanda and Uganda, and forced marriage as it took place in Cambodia under the KR.
VIII. Conclusion
Survivors of forced marriage who were interviewed by the writer expressed that they believed that forced marriage should be a crime because marriages pre-KR were different from forced marriages during the DK. The survivors provided numerous reasons as to why: 1) during the KR period you could not deny their order to marry because denial could lead to death; 2) often you were forced to marry someone you had never met the very day that you were informed that you were getting married; and 3) after being forced to marry, you worked so hard and had to live separately that you rarely saw your spouse. These survivors have no knowledge of international criminal law and no knowledge of the ongoing dialogue surrounding sexual slavery and forced marriage; they are articulating their experience of the harms they have suffered.
See full report here:
[1] Kasumi, Gender-Based Violence During the Khmer Rouge Regime: Stories of Survivors from the Democratic Kampuchea (1975-1979), at 18 (2d ed. 2008).
[2] Khamboly Dy, A History of Democratic Kampuchea (1975-1979), at 2.
[3] AFRC Case, Case No. SCSL-2004-16-A, Judgment, ¶ 176 (Feb. 22, 2008).
[4] Bridgette A. Toy-Cronin, What is Forced Marriage? Towards a Definition of Forced Marriage as a Crime Against Humanity, 19 Colum. J. Gender & L. 539, 543 (2010).
[5] Id. at 585.
[6] AFRC Case, ¶ 195.
[7] Prosecutor v. Kunarac, Case No. IT-96-23-T & IT-96-23/1-T, Judgment (Int’l Crim. Trib. for the Former Yugoslavia Dec. 10, 1998).
[8] Id. ¶ 459.
[9] Prosecutor v. Krnojelac, Case No. IT-97-25-A, Judgment (Int’l Crim. Trib. for the Former Yugoslavia Sept. 17, 2003).
[10] Id. ¶ 191.
[11] Peg Levine, A Contextual Study into the Weddings and Births Under the Khmer Rouge: The Ritual Revolution 4 (2007).
[12] Toy-Cronin, supra note 4, at 554.
[13] Any enumerated crime against humanity must satisfy additional co-textual elements. The enumerated crime must also “be committed as part of a widespread or systematic attack directed against any civilian population, on national, political, ethnical, racial or religious grounds.” See Law on the Establishment of the Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed During the Period of Democratic Kampuchea art. 5.
[14] See id.
[15] Statute of the International Criminal Tribunal for Rwanda, art. 3(g) (1994); Statute for the International Criminal Tribunal for the Former Yugoslavia art. 5(g); Statute of the Special Court for Sierra Leone, art. 2(g), Aug. 14, 2000; Rome Statute of the International Criminal Court, art. 7(1)(g)-1, adopted July 17, 1998; Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Judgment, ¶ 598 (Sept. 2, 1998).
[16] RUF Case, Case No. SCSL-04-15-T, Judgment, ¶ 2306 (Mar. 2, 2009).
[17] Kasumi, supra note 1, at 45.
[18] Neha Jain, Forced Marriage as a Crime Against Humanity, 6 J. Int’l Crim. Just. 1013, 1021 (2008).
[19] ECCC Press Release, available at http://www.eccc.gov.kh/english/cabinet/press/169/ECCC_OCIJ_PR_16_Sep_2010%28En%29.pdf.
[20] Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Commentary), art. 23, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135 [hereinafter GC Commentary].
[21] See Prosecutor v. Kayishema, Case No. ICTR-95-1, Judgment, ¶ 154 (May 21, 1999).
[22] GC Commentary, art. 3 (“It is always dangerous to try to go into too much detail – especially in this domain.”).
[23] Kriangsak Kittichaisaree, International Criminal Law 127 (2001).
[24] Kayishema, Case No. ICTR-95-1 at ¶ 151 (May 21, 1999).
[25] Id ¶ 149, 586-87.
[26] Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Judgment, ¶ 697 (Sept. 2, 1998).
[27] Id. ¶ 688.
[28] Prosecutor v. Kunarac, Case No. IT-96-23-T & IT-96-23/1-T, Judgment (Int’l Crim. Trib. for the Former Yugoslavia Dec. 10, 1998).
[29] ECCC Press Release, available at http://www.eccc.gov.kh/english/cabinet/press/169/ECCC_OCIJ_PR_16_Sep_2010%28En%29.pdf.
[30] Although the ICC has indicted people for the crime of sexual slavery no judgment or jurisprudence has yet come out of the indictments. The warrants of arrest for Harun (May 1, 2007), Kushayb (May 1, 2007) and Katanga and Chui (Sept. 30, 2008) include a charge of sexual slavery. International Criminal Court, All Cases, ICC, http://www.icc-cpi.int/Menus/ICC/Situations+and+Cases/Cases/.
[31] RUF Case, Case No. SCSL-04-15-T at ¶ 160.
[32] Id. ¶ 176.
[33] AFRC Case, Case No. SCSL-2004-16-A, Judgment (Feb. 22, 2008).
[34] Id. ¶ 196.
[35] Karine Belair, Unearthing the Customary Law Foundations of “Forced Marriages” During Sierra Leone’s Civil War: The Possible Impact of International Criminal Law on Customary Marriage and Women’s Rights in Post-Conflict Sierra Leone, 15 Colum. J. Gender & L. 551, 553 (2006).
[36] Prosecutor v. Norman, Case No. SCSL-2004-14-AR72(E), Decision on Preliminary Motion Based on Lack of Jurisdiction (Child Soldiers), ¶ 8 (May 31, 2004).
[37] See ICJ Statute, Article 38(1).
[38] Antonio Cassese, International Criminal Law 16 (2d ed. 2008).
[39] Prosecutor v. Norman, Case No. SCSL-2004-14-AR72(E), Decision on Preliminary Motion Based on Lack of Jurisdiction (Child Soldiers), ¶ 50 (May 31, 2004).
[40] Prosecutor v. Norman, Case No. SCSL-2004-14-AR72(E), Decision on Preliminary Motion Based on Lack of Jurisdiction (Child Soldiers), ¶ 25 (May 31, 2004).
[41] Rethinking International Criminal Law: The Substantive Part 56 (Olaoluwa Olusanya ed., 2007) [hereinafter Rethinking].
[42] Cassese, supra note 39, at 44.
[43] Rethinking, supra note 43, at 56.
[44] C.R. v. the United Kingdom, [1995] ECHR 20190/92, ¶ 34 (1995).
[45] Rethinking, supra note 43, at 55.
[46] Cassese, supra note 39, at 46.
[47] Kristen Boon, Rape and Forced Pregnancy Under the ICC Statute: Human Dignity, Autonomy, and Consent, 32 Colum. Hum. Rts. L. Rev. 625, 674-75 (2001).
[48] Sunday Times v. the United Kingdom, [1979] ECHR 6538/74, ¶ 34 (1979).
Note that although rape has existed as a criminal offence before the Nuremberg Charter, the elements of rape were not outlined until Akayesu. Gong-Gershowitz, Forced Marriage: A New Crime Against Humanity, 8 Northwestern University Journal of International Human Rights 53, 58 (2009).
[49] Boon, supra note 49, at 674-75.
[50] Punishment of Persons Guilty of War Crimes, Crimes Against Peace and Crimes Against Humanity, Allied Control Council Law No. 10, art. II(1)(c) (Dec. 10, 1945). Article II(1)(c) of Control Council Law No. 10 [hereinafter Control Council Law], http://avalon.law.yale.edu/imt/imt10.asp.
[51] Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Judgment (Sept. 2, 1998).
[52] Id; Cassese, supra note 39, at 44.
[53] See Sunday Times v. the United Kingdom, [1979] ECHR 6538/74, ¶ 34 (1979).
[54] Gong-Gershowitz, supra note 50, at 70.
[55] Cassese, supra note 39, at 99.
[56] Toy-Cronin, supra note 4, at 563.
[57] United Nations, Universal Declaration of Human Rights, UN Human Rights Office of the High Commissioner for Human Rights, http://www.ohchr.org/en/udhr/pages/introduction.aspx.
[58] Universal Declaration of Human Rights art. 16, adopted Dec. 10, 1948, http://www.un.org/en/documents/udhr/.
[59] Id.
[60] ICCPR art. 23(3), opened for signature Dec. 19, 1966, http://www2.ohchr.org/english/law/ccpr.htm. Cambodia signed the treaty on October 17, 1980, after the temporal jurisdiction of the ECCC. Note that although Cambodia signed in 1980, it didn’t accede to the ICCPR until May 26, 1992.
[61] Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages, art. 1(1), opened for signature Nov. 7, 1962, 521 U.N.T.S. 231 (entered into force Dec. 19, 1964.
[62] Id.
[63] CEDAW, art. 16(1)(b), adopted Dec. 18, 1979, 1249 U.N.T.S. 13 (entered into force Sept. 3, 1981), http://www.un.org/womenwatch/daw/cedaw/text/econvention.htm.
[64] Prosecutor v. Kayishema, Case No. ICTR-95-1, Judgment, ¶ 149 (May 21, 1999).
[65] Prosecutor v. Katanga, Case No. ICC-01/04-01/07, Decision on the confirmation of charges, ¶ 431(Sept. 30, 2008).
Independently Searching for the Truth since 1997.
MEMORY & JUSTICE
“...a society cannot know itself if it does not have an accurate memory of its own history.”
Youk Chhang, Director
Documentation Center of Cambodia
66 Sihanouk Blvd.,
Phnom Penh, Cambodia
Youk Chhang Smashes Ieng Sary, Defense Team
I regret that yesterday the Phnom Penh Post misattributed its two letters to the editor, making it appear as if Ou Virak of the Cambodian Center for Human Rights (CCHR) had drafted a stinging criticism of me, and Ieng Sary defense lawyers Ang Udom and Michael Karnavas had drafted a well-argued plea for investigation of potential political interference in the work of the Khmer Rouge tribunal. Yet, the mistake ultimately demonstrates the cohesion of Cambodian civil society, as Ou and I were immediately in touch to discuss the humorous error.
The defense team’s reprimand was in response to my statements for the article “Ieng Sary team seeks ECCC judge’s ouster” (September 20). There were two points I had hoped to make clear in my comments, a selection of which appeared in the article. First, the public must prepare itself to accept that Ieng Sary may pass away before trial, as he is old and his health is fragile. I certainly do not wish him death as we approach the Pchum Benh ancestor holidays, when all spirits are fed so they will not go hungry or suffer from their bad deeds. It is imperative that the trial move forward without delay so that Ieng Sary may live to tell us why Khmer killed Khmer and be judged accordingly.
I seek the truth, and would thus be a fool to support corruption in Cambodia, including at the Extraordinary Chambers/Defense Unit. Constructive defense challenges at the Khmer Rouge Tribunal benefit Cambodia, which suffers from a lack of fair trial standards in its national courts, but it is easy for the Ieng Sary defense to attack everything and themselves politicize the proceedings. Ieng Sary deserves better than to die and have his lawyers declare “victory.” He deserves to be tried.
Youk Chhang
Documentation Center of Cambodia
Magazine: Searching for the Truth, September 23, 1020
---------------
Independently Searching for the Truth since 1997.
MEMORY & JUSTICE
“...a society cannot know itself if it does not have an accurate memory of its own history.”
Youk Chhang, Director
Documentation Center of Cambodia
66 Sihanouk Blvd.,
Phnom Penh, Cambodia
The defense team’s reprimand was in response to my statements for the article “Ieng Sary team seeks ECCC judge’s ouster” (September 20). There were two points I had hoped to make clear in my comments, a selection of which appeared in the article. First, the public must prepare itself to accept that Ieng Sary may pass away before trial, as he is old and his health is fragile. I certainly do not wish him death as we approach the Pchum Benh ancestor holidays, when all spirits are fed so they will not go hungry or suffer from their bad deeds. It is imperative that the trial move forward without delay so that Ieng Sary may live to tell us why Khmer killed Khmer and be judged accordingly.
I seek the truth, and would thus be a fool to support corruption in Cambodia, including at the Extraordinary Chambers/Defense Unit. Constructive defense challenges at the Khmer Rouge Tribunal benefit Cambodia, which suffers from a lack of fair trial standards in its national courts, but it is easy for the Ieng Sary defense to attack everything and themselves politicize the proceedings. Ieng Sary deserves better than to die and have his lawyers declare “victory.” He deserves to be tried.
Youk Chhang
Documentation Center of Cambodia
Magazine: Searching for the Truth, September 23, 1020
---------------
Independently Searching for the Truth since 1997.
MEMORY & JUSTICE
“...a society cannot know itself if it does not have an accurate memory of its own history.”
Youk Chhang, Director
Documentation Center of Cambodia
66 Sihanouk Blvd.,
Phnom Penh, Cambodia
Khmer Rouge Leaders Indicted; Reparations Uncertain, However
Youk Chhang, director of a research team that has compiled a vault of evidence archiving the regime’s abuses, says it is the most important trial in Cambodian history.
September 21, 2010 |
A war crimes tribunal in Cambodia may have reached a major milestone this week by indicting four former leaders of the genocidal Khmer Rouge. But much more needs to be done to ensure that the long-awaited trial is meaningful to the regime’s victims, analysts say.
On Sep. 16, the tribunal announced the indictment of four Khmer Rouge leaders: Nuon Chea, the party’s chief ideologue; Ieng Sary, the foreign minister; Ieng Thirith, the social affairs minister; and Khieu Samphan, the party’s head of state.
They face charges including crimes against humanity, murder and genocide and are accused of being among the architects of a regime that caused the deaths of up to 2.2 million people during the Khmer Rouge rule from 1975 to 1979.
More than three decades after the regime collapsed, the four ageing suspects are also the only senior Khmer Rouge leaders to be charged by the United Nations-backed tribunal.
"I think the case is going to be the most important trial in Cambodian history. It could allow Cambodians to turn to the next page and move on," said Youk Chhang, director of the Documentation Centre of Cambodia, whose researchers have compiled a vault of evidence archiving the regime’s abuses.
Officials with the Extraordinary Chambers in the Courts of Cambodia (ECCC), the tribunal’s official name, say they hope a trial will begin during the first half of 2011.
However, some observers say the court will not truly be effective unless it can properly address the crucial issue of how reparations will be given to victims of the regime.
In July, the court convicted former Khmer Rouge prison chief Kaing Khek Eav. Duch, as he is better known, was convicted of overseeing the murders of an estimated 14,000 people judged to have been enemies of the regime. But advocates for victims and their surviving families said the court did not go far enough to address the hugely symbolic issue of reparations.
Part of the court’s mandate is to give a voice to victims. And so it allowed qualified victims and their families to participate directly in the proceedings as civil parties – and at levels that were unprecedented in international justice.
The tribunal is also able to award "collective and moral reparations" to approved victims. Demands from civil parties in the Duch case included free medical care, the creation of staffed education facilities and a curriculum about human rights abuses and genocide, as well as a trust fund that could provide vocational training and small-business loans.
But in the end, the court consented only to having the names of approved civil parties and victims listed in the final written judgment and for transcripts of Duch’s apologies and admissions of responsibility to be posted to the court website. This latter gesture was derided by some as being severely inadequate in a country where few rural residents have access to the Internet.
"It’s not meaningful to victims," said Sok Leang, the interim director and victims outreach manager for the NGO Centre for Justice and Reconciliation. "The names of the victims will be listed in the final verdict and then they will be digitised and posted on websites so everyone can see. This is just ridiculous in light of the technologies that victims living in remote areas have access to."
But in their decision, trial chamber judges noted that they were "constrained" by the rules of the court. It was not within the tribunal’s scope, they said, to award reparations the court had no jurisdiction to enforce – thus ruling out civil party demands to create school curriculums or national memorials.
And while the court’s legal framework stipulated that the accused was to be solely responsible for reparations, there were no measures allowing the ECCC to enforce its rulings if Duch was unwilling or unable to comply. The court was also unable to draw funding for reparations from third parties like donor countries or government.
Sok said the first case was a "test" – one that he said produced very mixed results. "I think it was a lesson for the victims as well as a lesson for the panel of judges," he said of some of the harsh reactions to the decision on reparations.
In the second case involving the four senior Khmer Rouge leaders, then, the tribunal must find more creative and symbolic solutions to the issue of reparations, should the accused be found guilty, Sok said.
"People have to have something to take away and be proud of this court; to be proud of the trial," he said. "If the reparations after this second case are similar to the first case, then most victims will not be satisfied. If the reparations are still the same, I think it will not be successful."
But the tribunal has taken measures that could see the matter handled differently in the second case. A day after the indictments were publicised, the court announced it had approved new rules that will expand its options for reparation during the second case.
The court will now be allowed to award reparations that may be funded by donor contributions. This would mean that potential reparations that would have been excluded under the old rules because the accused lacked the money to pay for them, could now be covered by donors. The rule changes do not affect the reparations rulings for the Duch trial.
"I think we are learning throughout the process what is working and what is not working," said Lars Olsen, a court spokesman. "Remember, this is the first time in international criminal justice that we have victim participation on this scale."
But while reparations have a highly symbolic meaning for victims, Olsen said the focus must remain on the trial’s criminal proceedings. "By the end of the day I believe the most important factor for any victim is to see that justice is being served," he said. "This can mainly be done through criminal proceedings, holding perpetrators responsible for crimes."
Irwin Loy was a city newspaper reporter for 24 hours Vancouver. He is currently based in Phnom Penh.
Independently Searching for the Truth since 1997.
MEMORY & JUSTICE
“...a society cannot know itself if it does not have an accurate memory of its own history.”
Youk Chhang, Director
Documentation Center of Cambodia
66 Sihanouk Blvd.,
Phnom Penh, Cambodia
September 21, 2010 |
A war crimes tribunal in Cambodia may have reached a major milestone this week by indicting four former leaders of the genocidal Khmer Rouge. But much more needs to be done to ensure that the long-awaited trial is meaningful to the regime’s victims, analysts say.
On Sep. 16, the tribunal announced the indictment of four Khmer Rouge leaders: Nuon Chea, the party’s chief ideologue; Ieng Sary, the foreign minister; Ieng Thirith, the social affairs minister; and Khieu Samphan, the party’s head of state.
They face charges including crimes against humanity, murder and genocide and are accused of being among the architects of a regime that caused the deaths of up to 2.2 million people during the Khmer Rouge rule from 1975 to 1979.
More than three decades after the regime collapsed, the four ageing suspects are also the only senior Khmer Rouge leaders to be charged by the United Nations-backed tribunal.
"I think the case is going to be the most important trial in Cambodian history. It could allow Cambodians to turn to the next page and move on," said Youk Chhang, director of the Documentation Centre of Cambodia, whose researchers have compiled a vault of evidence archiving the regime’s abuses.
Officials with the Extraordinary Chambers in the Courts of Cambodia (ECCC), the tribunal’s official name, say they hope a trial will begin during the first half of 2011.
However, some observers say the court will not truly be effective unless it can properly address the crucial issue of how reparations will be given to victims of the regime.
In July, the court convicted former Khmer Rouge prison chief Kaing Khek Eav. Duch, as he is better known, was convicted of overseeing the murders of an estimated 14,000 people judged to have been enemies of the regime. But advocates for victims and their surviving families said the court did not go far enough to address the hugely symbolic issue of reparations.
Part of the court’s mandate is to give a voice to victims. And so it allowed qualified victims and their families to participate directly in the proceedings as civil parties – and at levels that were unprecedented in international justice.
The tribunal is also able to award "collective and moral reparations" to approved victims. Demands from civil parties in the Duch case included free medical care, the creation of staffed education facilities and a curriculum about human rights abuses and genocide, as well as a trust fund that could provide vocational training and small-business loans.
But in the end, the court consented only to having the names of approved civil parties and victims listed in the final written judgment and for transcripts of Duch’s apologies and admissions of responsibility to be posted to the court website. This latter gesture was derided by some as being severely inadequate in a country where few rural residents have access to the Internet.
"It’s not meaningful to victims," said Sok Leang, the interim director and victims outreach manager for the NGO Centre for Justice and Reconciliation. "The names of the victims will be listed in the final verdict and then they will be digitised and posted on websites so everyone can see. This is just ridiculous in light of the technologies that victims living in remote areas have access to."
But in their decision, trial chamber judges noted that they were "constrained" by the rules of the court. It was not within the tribunal’s scope, they said, to award reparations the court had no jurisdiction to enforce – thus ruling out civil party demands to create school curriculums or national memorials.
And while the court’s legal framework stipulated that the accused was to be solely responsible for reparations, there were no measures allowing the ECCC to enforce its rulings if Duch was unwilling or unable to comply. The court was also unable to draw funding for reparations from third parties like donor countries or government.
Sok said the first case was a "test" – one that he said produced very mixed results. "I think it was a lesson for the victims as well as a lesson for the panel of judges," he said of some of the harsh reactions to the decision on reparations.
In the second case involving the four senior Khmer Rouge leaders, then, the tribunal must find more creative and symbolic solutions to the issue of reparations, should the accused be found guilty, Sok said.
"People have to have something to take away and be proud of this court; to be proud of the trial," he said. "If the reparations after this second case are similar to the first case, then most victims will not be satisfied. If the reparations are still the same, I think it will not be successful."
But the tribunal has taken measures that could see the matter handled differently in the second case. A day after the indictments were publicised, the court announced it had approved new rules that will expand its options for reparation during the second case.
The court will now be allowed to award reparations that may be funded by donor contributions. This would mean that potential reparations that would have been excluded under the old rules because the accused lacked the money to pay for them, could now be covered by donors. The rule changes do not affect the reparations rulings for the Duch trial.
"I think we are learning throughout the process what is working and what is not working," said Lars Olsen, a court spokesman. "Remember, this is the first time in international criminal justice that we have victim participation on this scale."
But while reparations have a highly symbolic meaning for victims, Olsen said the focus must remain on the trial’s criminal proceedings. "By the end of the day I believe the most important factor for any victim is to see that justice is being served," he said. "This can mainly be done through criminal proceedings, holding perpetrators responsible for crimes."
Irwin Loy was a city newspaper reporter for 24 hours Vancouver. He is currently based in Phnom Penh.
Independently Searching for the Truth since 1997.
MEMORY & JUSTICE
“...a society cannot know itself if it does not have an accurate memory of its own history.”
Youk Chhang, Director
Documentation Center of Cambodia
66 Sihanouk Blvd.,
Phnom Penh, Cambodia
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About Me
- Duong Dara
- Dara Duong was born in 1971 in Battambang province, Cambodia. His life changed forever at age four, when the Khmer Rouge took over the country in 1975. During the regime that controlled Cambodia from 1975-1979, Dara’s father, grandparents, uncle and aunt were executed, along with almost 3 million other Cambodians. Dara’s mother managed to keep him and his brothers and sisters together and survive the years of the Khmer Rouge regime. However, when the Vietnamese liberated Cambodia, she did not want to live under Communist rule. She fled with her family to a refugee camp on the Cambodian-Thai border, where they lived for more than ten years. Since arriving in the United States, Dara’s goal has been to educate people about the rich Cambodian culture that the Khmer Rouge tried to destroy and about the genocide, so that the world will not stand by and allow such atrocities to occur again. Toward that end, he has created the Cambodian Cultural Museum and Killing Fields Memorial, which began in his garage and is now in White Center, Washington. Dara’s story is one of survival against enormous odds, one of perseverance, one of courage and hope.