FROM THE INTERNATIONAL BAR ASSOCIATION’S MAGAZINE

An investigation into allegations of serious sexual violence committed during the Khmer Rouge regime in the 1970s could debunk the widely accepted notion that the leadership aimed to create a utopia of gender equality.

For all its brutality, Pol Pot’s Khmer Rouge regime did not tolerate sexual crimes committed by its cadres, or so it was assumed for many years. Moral Rule Number 6, which outlined the ultra-Maoist movement’s policy on so-called ‘moral offences’, seemingly levied harsh punishments for crimes such as rape. Now, nearly four decades later, it appears that this was not the case.

Theresa de Langis has conducted extensive research into sexual crimes in conflict in Cambodia and elsewhere. ‘It’s a common misconception that the Khmer Rouge were trying to create this utopia of gender equality, but my research actually shows just the opposite,’ she says, adding that crimes of sexual violence – including rape prior to execution and rape as punishment – were widespread. (For more on de Langis’ research, visit www.cambodianwomensoralhistory.com.)

In power from 1975–1979, the Khmer Rouge exacted complete control over the eight-million strong population. They were placed in conditions of wretched servitude, mere chattel in the gulags that covered a nation that became known as a ‘prison without walls’. Two million people died in less than four years from execution, starvation, illness and overwork.

It was the state, for example, that decided who would marry whom. Forcibly married couples that refused to have sex risked execution. Falling in love was a crime for which transgressors might be killed.

To date, only a limited amount of research has been carried out on sexual violence in Democratic Kampuchea, as Cambodia was known under the regime. But what has been done, de Langis says, indicates that cadres who committed such crimes went largely unpunished.

‘[Rule] 6 was not an anti-rape policy, and I really can’t stress that enough. This was a policy that most often punished consensual sexual relationships and, in instances of rape, most often the victims,’ she says. Many women who were raped by cadres were put to death after reporting their attackers.

Importantly, de Langis says, the veil over the issue has begun to lift in Cambodia. In recent years, more people have spoken up about what they saw or experienced, some to researchers like her and others at a handful of forums organised by NGOs. The threat of sexual violence, it turns out, was ‘a daily lived reality’ for many women.

‘Certainly the threat of sexual violence – where you rape one woman in order to spread the lesson to the rest of the community – was very much part of the modus operandiof control for the Khmer Rouge,’ she says.

‘Widespread sexual violence’

The myth that Democratic Kampuchea was relatively free from crimes of sexual violence was common currency as recently as 2011.

No less a person than a judge at Phnom Penh’s UN-backed Khmer Rouge tribunal told students that the regime was – in the context of gendered violence against women – an historical anomaly given that such acts were not a significant part of its rule.

New Zealand’s Dame Silvia Cartwright was quoted in theCambodia Daily newspaper in late 2011 as saying: ‘This particular conflict is unusual [in that] it does not contain allegations of widespread violence against women because they are women.’

The tribunal’s investigating judges had come to a similar conclusion regarding their consideration of wider patterns of sexual violence only a year before. Their decision was contained in the 740-page indictment of the four surviving Khmer Rouge leaders – the defendants in Case 002 charged with genocide, war crimes and crimes against humanity.

Early on, the case against the four was split into a series of mini-trials. By the time the court came to sentence the defendants in the first mini-trial in August, only two remained in the dock. One of the accused – the former foreign minister Ieng Sary – had died during trial. Another – the ex-minister of social affairs, Ieng Thirith – had been ruled mentally unfit.

On August 7 the court handed down life sentences against Brother Number Two Nuon Chea and the former head of state Khieu Samphan for the charges assessed in this part of their trial, a narrow selection that dealt largely with the forced movement of people. Lawyers for the two say they will appeal. Evidentiary hearings in the second mini-trial, which will consider charges including genocide and forced marriage, are expected to begin before the end of 2014.

Prior to the commencement of Case 002, the investigating judges decided that the existence of Rule 6 meant sexual violence was punished as a matter of state policy and, therefore, the leaders could not be tried for such crimes. That was not the position of the prosecution, which had previously concluded that ‘thousands of civilians were the victims of rape and sexual violence sanctioned, perpetrated, approved or condoned by the authorities’. But under Cambodia’s civil code, the decision on what makes the charge sheet is for the investigating judges to make.

They did, however, rule that the defendants face charges of forced marriage, the policy under which hundreds of thousands of couples were compelled to wed and to consummate their marriages at risk of execution. The charge of rape in Case 002 occurs within the specific context of forced marriage.

And although the court cannot now amend its Case 002 indictment to add the wider charge of sexual violence (assuming, that is, it felt there were grounds to do so), it looks as though it will tackle the issue in its final scheduled investigation: Case 004.

This is the hope of the international prosecutor at the tribunal, which is known formally as the Extraordinary Chambers in the Courts of Cambodia (ECCC). In April, Nicholas Koumjian, who has been in his post since the start of the year, asked the investigating judges to examine numerous allegations of sexual violence committed by cadres.

The allegations form part of Case 004, which is the investigation of three district-level Khmer Rouge chiefs who are believed to have been responsible for thousands of deaths and an array of other serious crimes. It is yet to be determined whether Case 004 will go to trial.

Koumjian, an American who has worked at several international war crimes courts, filed the document, known as a supplementary submission, after evidence came to light that there was, in fact, ‘widespread sexual violence in areas that are subject of the investigation’ of Case 004.

‘These include forced marriages, and also within the forced marriages individuals were required to have sex – so that amounts to rape within forced marriages – and also rape and other sexual violence outside of forced marriages,’ he says.

Among those crimes of ‘other sexual violence’ are that some women were raped prior to execution, and that others were executed after reporting that cadres had raped them.

Given the politicisation of the ECCC, and given that Cambodia’s authoritarian Prime Minister Hun Sen has said repeatedly that he will not allow Case 004 to proceed, it is not clear what eventually will come of this. But even if Case 004 does not go to trial, investigating the alleged crimes would shed a light on a category of crimes that in all conflicts is, in Koumjian’s words, ‘grossly under-reported’.

‘Victims are – for very understandable reasons – reluctant to come forward to talk publicly, and in many traditional societies the victim is marked for life because of what happened,’ he says. ‘I’ve had victims tell me that, after they’ve testified in the former Yugoslavia, their husbands divorced them because of that – they couldn’t deal with the situation.’

It is not clear how much progress the court has made since April in regards to Case 004. On August 22, ECCC spokesman Lars Olsen told Global Insight that it remains ‘under active investigation’.

‘A decision on whether anyone will be sent for trial is expected in 2015,’ says Olsen. ‘Given the disparity in the status of the investigation against the three Case 004 suspects, the international co-investigating judge is considering whether or not to sever the case.’

A higher global profile

Two years ago, then UK Foreign Secretary William Hague, in conjunction with actress and Special Envoy of United Nations High Commissioner for Refugees, Angelina Jolie, launched the Preventing Sexual Violence in Conflict Initiative. That effort is one reason this issue has secured a much higher profile in recent years. The Global Summit to End Sexual Violence in Conflict, which was held in London from 10–13 June, added to that momentum.

Yet by the time the London summit started, the world had already begun to pay attention. In June 2008, the UN Security Council passed a landmark resolution – number 1820 – that named sexual violence as a weapon of war, determined that rape and sexual violence could constitute war crimes, and which held that sexual violence in conflict was a security concern. Resolution 2106, passed five years later, called on states to do more to combat the scourge, including passing domestic legislation ‘to enable prosecutions for such acts’. Those resolutions followed groundbreaking rulings on rape and sexual violence handed down at the ad hoc tribunals for Rwanda and Yugoslavia.

Zainab Hawa Bangura, the UN Secretary-General’s Special Representative on Sexual Violence in Conflict, says the Security Council’s work has moved the subject ‘from the margins to the mainstream of international peace and security’, adding that the focus on the responsibility of individual nations is central to the efforts of her office.

‘The UN on its own cannot address this problem,’ she says. ‘This is an issue that belongs to Member States because it is the country where the crimes are being committed that have the primary legal and moral responsibility to protect their citizens. It is the failure of the state to protect the citizens that has led to this.’

Part of the role of Bangura’s office is to send the message that when perpetrators ‘commit this crime, whoever you are, wherever you are, [the authorities] will go after you’. Another is to dispatch experts to help countries introduce or improve their laws against such crimes (‘We still have a lot of countries where rape is not a crime, especially rape in conflict,’ she says), as well as training police and judicial officials, and protecting witnesses and victims.

‘The [International Criminal Court] cannot go after everybody so it must be the national police that go after people. It must be the judiciary that is prepared to sentence these people. So that’s what we hope we can do, and that’s what we are trying to do,’ she says.

The London summit drew government representatives from more than 120 countries, as well as an array of experts from civil society and beyond. One of its main achievements was the launch of the International Protocol on the Documentation and Investigation of Sexual Violence in Conflict, a document designed to standardise the collection of evidence and protect witnesses, with the aim of convicting the guilty and deterring others.

In their summary, the two co-chairs – Hague and Jolie – highlighted four key areas for change, including: improved accountability; better laws; more support for survivors; and putting gender issues to the forefront in peace and security efforts. They also recognised that women ought to have a higher profile in peace processes, and said faith-based groups can help to change attitudes towards crimes of sexual violence.

‘We [also] agreed that states should ensure that in ceasefires and peace negotiations, and the UN Security Council Resolutions that support them, no amnesties should be given to those who commit sexual violence in conflict,’ they wrote.

South African former Constitutional Court judge Richard Goldstone says the summit’s key achievement was to focus attention ‘on the fact that systematic mass rape and other horrible gender offences remain unacceptable and awful features of modern wars’, adding that the international protocol was ‘an important step in the right direction’.

‘It is clearly important to prosecute such crimes, and their efficient investigation is crucial,’ says Goldstone, who also co-chairs the IBA Rule of Law Action Group. ‘The important step forward that nations need to take is to ensure that appropriate legislation and efficient steps to combat these crimes are in place and implemented.’

Baroness Helena Kennedy, a member of the UK’s House of Lords, says the summit brought the issue of violence against women, and particularly of rape as a war crime and violence in conflict zones, to a global audience.

‘Ministers and members of security forces from very troubled parts of the world were present and heard directly from women,’ says Kennedy, Co-Chair of the IBA’s Human Rights Institute. ‘There was discussion that had never happened with such seriousness before. It gave one reason for hope of change.’

Kennedy, who chaired sessions on violence in Somalia, Sri Lanka and Iraq, says modern communications means evidence of such atrocities cannot be hidden.

‘Word gets out,’ she says. ‘Also women are being encouraged to speak. The taboos which kept women silent about being raped – shame, fear that her family would be dishonoured, pressure from the community – these things are being challenged and, although it is hard, many women are now testifying to desperate forms of abuse.’

She says education for women and girls has given them confidence to demand change, but acknowledges much more is needed: a major problem is the proliferation of small arms in conflict areas, which the international community should address by limiting their flow. Ultimately, ending sexual violence means ending patriarchy because ‘they go hand in hand’.

It certainly seems that the subject will remain prominent. Just a few years ago, says the UN’s Bangura, ‘nobody want[ed] to talk about’ sexual violence in conflict – but much has changed: today the UN is tackling the issue in South Sudan, the Democratic Republic of Congo, and Somalia, and has also been asked to work in Libya and Liberia. In addition, 145 countries have signed a commitment to fight sexual violence.

Bangura is hopeful: ‘I know it’s a very daunting task, it’s very challenging, but I think we have the light ahead of us.’

Cambodia failing

Yet numerous shadows remain. When Bangura addressed the Security Council in April, she told diplomats that all nations must do more to combat a ‘great moral issue of our time’ that ‘casts a long shadow over our collective humanity’.

‘Unfortunately, the unacceptable reality is that today it is still largely “cost-free” to rape a woman, child or man in conflict,’ she said. ‘Sexual violence has been used through the ages precisely because it is such a cheap and devastating weapon.’

In her report issued in April, Bangura singled out 21 countries, including Cambodia, for failing to take sufficient steps to combat sexual violence in conflict. In the case of Cambodia – a post-conflict state – that censure relates to the failure to prosecute alleged offenders for crimes committed during the Khmer Rouge’s rule.

It is not the first time that Cambodia’s failure to act has been noted. Two years ago, Bangura’s predecessor, Margot Wallström, sparked a storm at the ECCC when she accused the court of only ‘marginally’ investigating crimes of sexual violence. Wallström specifically blamed the offices of the prosecution and the investigating judges.

‘Unless the court finds a way to address this issue, it will be perceived as implicitly re-enforcing the silence about conflict-related sexual violence, and not providing a counterbalance to the impunity that has prevailed,’ Wallström wrote at the time.

Lawyers for civil parties concurred with Wallström’s assessment. But Koumjian’s predecessor, Andrew Cayley, stung by the accusations, hit back insisting that the prosecution had taken the crimes seriously.

When it comes to the Cambodian government, Bangura’s position, outlined in her April report, is that no system ‘has been put in place to respond to my recommendation that the effective prosecution of perpetrators be pursued’. She also wants Phnom Penh to provide reparations and assistance to victims. So far there has been little sign of progress on her demands.

Actions and accountability

Until recently Clair Duffy worked as the IBA’s senior legal adviser in The Hague on issues that appear before the International Criminal Court (ICC). Prior to that, she spent two years monitoring proceedings at the ECCC and has also worked for the prosecution at the International Criminal Tribunal for Rwanda.

Duffy says that, although tracking down perpetrators for prosecution is an important element on the road to accountability, it has, to date, proven far more difficult in the international justice system to secure convictions for charges of sexual violence than for other serious crimes.

One of the biggest hurdles to tackling sexual violence in conflict, she says, is determining how far up the chain of military and political command such prosecutions can reach. Across the various international tribunals, ‘the same troubled story’ has shown that the more senior the suspect, the more difficult it is to convict them.

Courts are more likely to convict when the prosecution can prove a direct role: for instance, that the individual was present when rapes were being committed; that those committing the crimes were under his effective control; or where he gave orders to rape or did not act to prevent such acts. Yet that is not the case when it comes to the proof required to convict defendants for acts such as killing or pillaging.

‘Many scholars complain that this is a double standard, and I agree,’ Duffy says. ‘Rape is still treated as requiring something much more, even where it is just another means of terrorising and controlling a population. It’s often treated as an unfortunate by-product of conflict, or an opportunistic crime when in fact it is an intrinsic and extremely effective tool for achieving political and military objectives.’

The ICC’s conviction in March of militia leader Germain Katanga is a case in point. Katanga was found guilty of a number of crimes related to the killings of more than 200 civilians in an attack on a village in 2003 in the Democratic Republic of Congo.

Duffy says the ICC did not convict Katanga of sexual violence ‘despite finding the evidence of the sexual violence itself reliable’. In part, the court was not certain the accused was present when the attack took place, yet that has not precluded the ICC from convicting him for other crimes relating to the attack.

‘The further up the chain of leadership you go, the harder this generally becomes,’ Duffy says. ‘What often becomes key in those cases is how pervasive and, to a degree, public, the crimes are. So, in Rwanda, for example, some very senior political leaders were convicted of rape, and the evidence of its pervasiveness during the genocide was key to this finding.’

And so, despite the progress made over the years in prosecuting sexual violence in conflict, she says, ‘there is a very long way to go’, as one case currently before the ICC illustrates: the 2007–2008 post-election violence in Kenya in which 1,200 people died, another 600,000 fled their homes, and thousands of women were raped. Some, says Duffy, have tried and failed to get justice through the domestic courts.

‘There are stories about women reporting these rapes – often gang rapes – to the police, naming perpetrators, and the police laughing at them and saying: “Did anyone die? No, then you are wasting our time”,’ Duffy says. ‘That these kinds of attitudes still prevail is all the more reason the obligation on international courts is so pronounced. Often it is the last hope for victims of these kinds of atrocities.’

‘It wasn’t secret’ in Cambodia

Nearly 40 years after the Khmer Rouge took control of Cambodia, victims of sexual violence are yet to see justice. Meanwhile, research into crimes of sexual violence in Democratic Kampuchea remains limited. The most comprehensive is a 2011 study by researcher Katrina Natale titled I Could Feel My Soul Flying Away From My Body. Natale spoke to 104 survivors about their knowledge and experiences of gender-based violence (GBV) in two provinces between 1975 and 1979. Almost all of the perpetrators were male Khmer Rouge cadres.

Sixty-five per cent of the interviewees knew of rapes committed by Khmer Rouge cadres, and 29 per cent had seen such acts. One in seven had witnessed acts of sexual mutilation. When asked about the Khmer Rouge’s supposedly rigid stance against ‘moral offences’, they knew of only one perpetrator who had been punished.

Research into other areas of life in Democratic Kampuchea has shown that people’s experiences of execution, starvation and terror varied depending on where they were, when they were there, and who was in charge at those lower levels. There is little reason to think that, when it came to crimes of sexual violence, this was not also the case.

Natale’s research does indeed show that different parts of the country experienced different levels of GBV at different times. It also found that GBV was ‘an important and relatively well-known aspect of the suffering experienced among victims and survivors of Democratic Kampuchea’, and that the regime’s stated policy of punishing offenders was ‘applied inconsistently and was ineffective in preventing GBV’.

De Langis says that chimes with her research: that sexual violence was ‘widespread and it wasn’t secret’. That included instances of gang rapes of women prior to execution.

‘A lot of the rapes were gang rapes, so clearly there were witnesses. And some of them were public rapes. They were – in those instances – clearly messages to the whole community that this happens if you are an enemy and [that], if you will be punished, this is part of the punishment,’ she says.

De Langis welcomes as ‘an important step forward’ the prosecution’s request that the investigating judges examine the allegations for Case 004, not least because sexual violence against women remains endemic in Cambodia. And, although she regrets that the court has not added the wider crimes of sexual violence to Case 002, she says it is important that forced marriage and its associated crimes will be on the docket in the trial of the two remaining leaders.

‘It will be very shocking for people to see what that situation was really like – especially the rapes in forced marriage: where husbands were threatened to actually rape their wives at risk of death or where Khmer Rouge cadres, men and women, would actually assist men to rape their wives,’ she says. ‘So [in Case 002] there will still be stories of sexual violence against both men and women. It will make a significant contribution to our understanding of this atrocity [and] also of atrocities globally.’

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