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Issues of Sexual and Gender-Based Violence at the ECCC

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The Extraordinary Chambers in the Courts of Cambodia

Part of the book series: International Criminal Justice Series ((ICJS,volume 6))

Abstract

This chapter examines how the Extraordinary Chambers in the Courts of Cambodia have—and have not—addressed sexual and gender-based crimes under the Khmer Rouge regime. It begins with a brief exploration of what was known about sexual and gender-based violence under the Khmer Rouge when the ECCC began operation, and how negation of this knowledge seriously impacted the court’s initial investigations. It then turns to an examination of how forced marriage came to be addressed as a crime against humanity in Case 002. This section evaluates the ECCC’s analysis of forced marriage as an inhumane act, which represents a positive addition to the understanding of forced marriage in international criminal law. However, it also highlights the current gaps that still need to be addressed, including the definition and classification of forced marriage. The chapter subsequently examines how the ECCC has considered rape as a crime against humanity. This story is not as positive. The court has narrowly prescribed the acts of rape that can be considered in Case 002/02 to rapes within forced marriages, likely affecting Case 004’s allegations of rape outside of forced marriages. It has also determined that rape was not considered a specific crime against humanity in 1975. The chapter ends with an inquiry into the ECCC’s likely legacy on sexual and gender-based crimes.

Valerie Oosterveld is Assistant Professor and Director of the International Internship Program at the University of Western Ontario; Patricia Viseur Sellers is the Special Advisor for Prosecution Strategies to the Prosecutor of the ICC.

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Notes

  1. 1.

    The conventional international narrative did not consider the wider category of gender-based violence.

  2. 2.

    This term comes from: Copelon 1994, at 243–266.

  3. 3.

    The twelve codes are listed by the Documentation Center of Cambodia, ‘Searching for the Truth’, Vol. 15, at 1, available at http://www.d.dccam.org/Projects/Magazines/Previous%20Englis/Issue15.pdf (visited 21 June 2015). However, see a more accurate translation of Code 6 in De Langis (2014), at 64.

  4. 4.

    For example, see claims that ‘In the case of the Cambodian genocide, the Khmer Rouge sought to build an ideologically pure utopia and so sex and reproduction was highly regulated. In neither of these cases did rape or sexual assault play a major role’, Center for Law and Globalization (2015), ‘How Are Genocide and Sexual Assault Related?’, available at https://clg.portalxm.com/library/keytext.cfm?keytext_id=170 (visited 15 June 2015).

  5. 5.

    De Langis 2014, at 62–63.

  6. 6.

    Ibid. at 66.

  7. 7.

    Ibid. at 70–73.

  8. 8.

    Mollica et al. 1993, at 581–586.

  9. 9.

    E.g., Anderson 2005, 785–823; Toy-Cronin 2006; Ung 2000, at 70–71.

  10. 10.

    Documentation Center of Cambodia, ‘Searching for the Truth’, Vol. 1 (January 2000), at 24, available at www.d.dccam.org/Projects/Magazines/Previous%20English/Issue01.pdf (visited 21 June 2015).

  11. 11.

    Documentation Center of Cambodia, ‘Searching for the Truth’, Vol. 2 (February 2000), at 45, available at www.d.dccam.org/Projects/Magazines/Previous%20English/Issue02.pdf (visited 21 June 2015).

  12. 12.

    Documentation Center of Cambodia, ‘Searching for the Truth’, Vol. 4 (April 2000), at 46, available at www.d.dccam.org/Projects/Magazines/Previous%20English/Issue04.pdf (visited 21 June 2015).

  13. 13.

    ‘Khmer Rape Victim Tells her Story’ Taipei Times, 27 August 2004, available at http://www.taipeitimes.com/News/world/archives/2004/08/27/2003200423 (visited 15 June 2015).

  14. 14.

    The study was updated in 2008: Nakagawa 2008.

  15. 15.

    Braaf 2014, at 24–31.

  16. 16.

    For more studies, see Natale (2011); De Langis, Ye 2011, at 469–475.

  17. 17.

    Studzinsky 2013, at 179.

  18. 18.

    Balthazard 2013, at 28.

  19. 19.

    Second Request for Investigative Actions Concerning Forced Marriages and Forced Sexual Relations, Nuon Chea and others (002/19-09-2007/ECCC-D188), Co-Lawyers for the Civil Parties, 15 July 2009, § 9 (hereafter Second Civil Parties Request on Forced Marriage).

  20. 20.

    Studzinsky 2013, at 180.

  21. 21.

    Closing Order, Nuon Chea and others (002/19-09-2007/ECCC-D427), Office of the Co-Investigating Judges, 15 September 2010, §§ 1432, 1442–1446 (hereafter Closing Order Case 002).

  22. 22.

    Introductory Submission, Nuon Chea and others (002/19-09-2007/ECCC-D3), Office of the Co-Prosecutors, 18 July 2007.

  23. 23.

    This list is set out in Second Civil Parties Request on Forced Marriage, supra note 19, § 15, which classifies all of these violations under the title of forced marriage but requests separate offences.

  24. 24.

    ECCC Press Statement by Civil Parties Lawyer Silke Studzinsky, First Civil Party Application before the Extraordinary Chambers in the Courts of Cambodia (ECCC) on Gender-Based Violence under the Khmer Rouge Regime, 3 September 2008, available at http://www.eccc.gov.kh/sites/default/files/media/PressRelease_1st_civil_party_on_Gender_Based_Violence.pdf (visited 15 June 2015) (hereafter Studzinsky 2008 Gender-Based Violence Press Statement).

  25. 25.

    For example, in March 2009, the lawyers for the Civil Parties requested the Office of the Co-Investigating Judges to send a Forwarding Order for the Office of the Co-Prosecutors to petition investigation into forced marriages, rape, sexual enslavement, forced pregnancy and other acts of sexual or gender-based violence in Case 002. Since no investigative action had been taken, they followed up with a second request: Second Civil Parties Request on Forced Marriage, supra note 19, § 1. See also Order on Request for Investigative Action on Forced Marriages and Forced Sexual Relations, Nuon Chea and others (002/19-09-2007/ECCC-D268/2), Office of the Co-Investigating Judges, 18 December 2009.

  26. 26.

    Co-Prosecutor’s Response to the Forwarding Order of the Co-Investigating Judges and the Supplementary Submission, Nuon Chea and others (002/19-09-2007/ECCC-D146/3), Office of the Co-Prosecutors, 30 April 2009, § 305.

  27. 27.

    E.g. Second Civil Parties Request on Forced Marriage, supra note 19; Fourth Civil Parties’ Request for Investigative Actions Concerning Forced Marriages and Sexually Related Crimes, Nuon Chea and others (002/19-09-2007/ECCC-D268), Co-Lawyers for the Civil Parties, 4 December 2009.

  28. 28.

    Further Authorization Pursuant to Co-Prosecutors’ 30 April 2009 Response to the Forwarding Order of the Co-Investigating Judges and Supplementary Submission, Nuon Chea and others (002/19-09-2007/ECCC-D146/4), Office of the Co-Prosecutors, 5 November 2009, § 3; Further Statement of the Co-Prosecutors Regarding 30 April 2009 Response to the Forwarding Order of the Co-Investigating Judges and Supplementary Submission, Nuon Chea and others (002/19-09-2007/ECCC-D146/5), Office of the Co-Prosecutors, 26 November 2009.

  29. 29.

    Order on Request for Investigative Action Concerning Forced Marriages and Forced Sexual Relations, Nuon Chea and others (002/19-09-2007/ECCC-D268/2), Office of the Co-Investigating Judges, 18 December 2009 (hereafter OCIJ December 2009 Forced Marriage Order).

  30. 30.

    Ibid., § 10.

  31. 31.

    Ibid.

  32. 32.

    Ibid., § 11.

  33. 33.

    Closing Order Case 002, supra note 21, §§ 156–157. The Closing Order also found that the forced marriages formed part of the attack against the civilian population during the entirety of the Khmer Rouge rule.

  34. 34.

    Ibid., §§ 158–159.

  35. 35.

    Ibid., §§ 216–217.

  36. 36.

    Ibid., § 217.

  37. 37.

    Ibid., § 842.

  38. 38.

    Ibid., § 849.

  39. 39.

    Ibid., § 843.

  40. 40.

    Ibid., §§ 849–850.

  41. 41.

    Ibid.

  42. 42.

    Ibid., § 858.

  43. 43.

    Ibid., §§ 220, 314 and 1432.

  44. 44.

    Ibid., § 861.

  45. 45.

    Ibid., §§ 1432, 1442–1446.

  46. 46.

    Ibid., § 1433.

  47. 47.

    Ibid.

  48. 48.

    Ibid., § 1444.

  49. 49.

    OCIJ December 2009 Forced Marriage Order, supra note 29, § 11.

  50. 50.

    Judgment, Brima, Kamara and Kanu (SCSL-04-16-T), Trial Chamber II, 20 June 2007, § 701. This categorization was rejected by the majority, §§703–704, but was accepted at the appellate level: Judgment, Brima, Kamara and Kanu (SCSL-04-16-A), Appeals Chamber, 22 February 2008, §§ 185–186, 199–202. This categorization was also accepted in: Judgment, Sesay, Kallon and Gbao (SCSL-04-15-T), Trial Chamber I, 2 March 2009, e.g. §§ 168, 1461.

  51. 51.

    These debates on categorization of forced marriage are canvassed in Oosterveld 2011, at 143–153.

  52. 52.

    Viseur Sellers refers to the use of the term ‘forced marriage’ in this respect as ‘linguistic camouflage’: Viseur Sellers 2011, at 137 and 142.

  53. 53.

    OCIJ December 2009 Forced Marriage Order, supra note 29, § 11; the issue was only raised obliquely in the Closing Order under the ‘other inhumane acts’ discussion: Closing Order Case 002, supra note 21, §§ 1445, 1447.

  54. 54.

    The Sierra Leone armed conflict generated other abominable acts of sexual violence, however: V. Oosterveld 2012, at 11.

  55. 55.

    Closing Order, supra note 21, § 1445.

  56. 56.

    Studzinsky 2008 Gender-Based Violence Press Statement, supra note 24; Nakagawa 2008; Civil Parties Closing Brief to Case 002/01, Nuon Chea and others (002/19-09-2007/ECCC-E295/6/2), Trial Chamber, 26 September 2013, § 214 at note 504 (hereafter Civil Parties Closing Brief to Case 002/01).

  57. 57.

    Civil Parties Closing Brief to Case 002/01, supra note 56, §§ 209–211, 216. On forced marriages to eliminate Muslim families and the Muslim religion, see Braaf 2014, at 14. See also So 2011.

  58. 58.

    Civil Parties Closing Brief to Case 002/01, supra note 56, § 206.

  59. 59.

    Closing Order Case 002, supra note 21, § 1429.

  60. 60.

    If the mode of liability had been aiding and abetting, rape in other instances could have been included. If the mode of liability had been command/superior responsibility, liability of superiors for rape committed by subordinates prior to executions and implicitly condoned by superior might have been prosecuted. Finally, if the charging theory of genocide had included killing and causing serious bodily or mental harm to members of the group, then rape of religious and ethnic minorities might have been pursued.

  61. 61.

    See Chap. 16 in this volume.

  62. 62.

    Judgment, Nuon Chea and others (002/19-09-2007/ECCC-E313), Trial Chamber, 7 August 2014, §128. As a result, the reparations do not deal with forced marriage, see §§ 1151–1164.

  63. 63.

    See Chap. 16 in this Volume.

  64. 64.

    Trial Chamber Workplan for Case 002/02 and Schedule for Upcoming Filings, Nuon Chea and others (002/19-09-2007/ECCC-E301/5), Trial Chamber, 24 December 2013.

  65. 65.

    Civil Parties’ Submission on the Scope of Case 002/02, Nuon Chea and others (002/19-09-2007/ECCC-E301/5/3), Trial Chamber, 31 January 2014.

  66. 66.

    Ibid., § 11.

  67. 67.

    Ibid., § 19.

  68. 68.

    Ibid., § 25.

  69. 69.

    Decision on Additional Severance of Case 002 and Scope of Case 002/02, Nuon Chea and others (002/19-09-2007/ECCC-E301/9/1), Trial Chamber, 4 April 2014, § 33 (hereafter Decision on Additional Severance of Case 002). This was confirmed by the Supreme Court Chamber.

  70. 70.

    Transcript of Trial Proceedings [Ms. Cheang Sreimom, 2-TCW-834], Nuon Chea and others (002/19-09-2007/ECCC-E1/254.1), Trial Chamber, 29 January 2015.

  71. 71.

    Judgment, Taylor (SCSL-03-01-T), Trial Chamber II, 26 April 2012, § 427–428.

  72. 72.

    Ibid., § 424. Oosterveld has argued that the meaning of conjugal slavery be kept both flexible and wide to remain adaptable to varied contexts such as the Khmer Rouge forced marriages in Cambodia: Oosterveld 2012, at 23.

  73. 73.

    Ieng Thirith Defence’s Preliminary Objections, Nuon Chea and others (002/19-09-2007/ECCC-E24/2), Trial Chamber, 14 February 2011, §§ 27–30.

  74. 74.

    Williams and Palmer 2015, at 475.

  75. 75.

    Ibid., at 475–476.

  76. 76.

    Viseur Sellers 2011, at 141–142. See also 122–127 and 135 on how a similar argument can be made with respect to slavery in the United States and elsewhere.

  77. 77.

    ECCC Press Release, ‘The International Co-Investigating Judge Charges Meas Muth in absentia in Case 003’ (2015), available at http://www.eccc.gov.kh/en/articles/international-co-investigating-judge-charges-meas-muth-absentia-case-003 (visited 15 June 2015).

  78. 78.

    Ibid.

  79. 79.

    ECCC Press Release, ‘International Co-Prosecutor Files Supplementary Submission in Case 003’ (2015), available at http://www.eccc.gov.kh/en/articles/international-co-prosecutor-files-supplementary-submission-case-003 (visited 15 June 2015).

  80. 80.

    Ibid.

  81. 81.

    ECCC Press Release, ‘The International Co-Investigating Judge Charges Im Chaem in absentia in Case 004’ (2015), available at http://www.eccc.gov.kh/en/articles/international-co-investigating-judge-charges-im-chaem-absentia-case-004 (visited 15 June 2015).

  82. 82.

    Ibid.

  83. 83.

    ECCC Press Release, ‘The International Co-Investigating Judge Charges Ao An in Case 004’ (2015), available at http://www.eccc.gov.kh/en/articles/international-co-investigating-judge-charges-ao-case-004 (visited 15 June 2015).

  84. 84.

    S. Turton, ‘Second Case 004 Suspect Charged’, Phnom Penh Post (27 March 2015), available at http://www.phnompenhpost.com/national/second-case-004-suspect-charged (visited 15 June 2015). He appeared before the court to hear the charges, but was not arrested.

  85. 85.

    ECCC Press Release, ‘International Co-Prosecutor Requests Investigation of Alleged Sexual and Gender-based Violence in Case 004’ (2014), available at http://www.eccc.gov.kh/en/articles/international-co-prosecutor-requests-investigation-alleged-sexual-and-gender-based-violence (visited 15 June 2015) (hereafter Case 004 Sexual and Gender-Based Violence Announcement).

  86. 86.

    Ibid.

  87. 87.

    Ibid.

  88. 88.

    Ibid.

  89. 89.

    Killean 2015, 331–352, at 345.

  90. 90.

    Ibid., at 346.

  91. 91.

    Ibid.

  92. 92.

    Studzinsky 2013, at 178–179, 181, 183.

  93. 93.

    Closing Order Indicting Kaing Guek Eav alias Duch, Kaing Guek Eav (001/18-07-2007/ECCC-D99), Office of the Co-Investigating Judges, 8 August 2008, §§ 105, 107 (as amended 5 December 2008) (hereafter Closing Order in Case 001).

  94. 94.

    Ibid., § 1.

  95. 95.

    Studzinsky 2013 at 178–179.

  96. 96.

    Closing Order in Case 001, supra note 93, §§ 105, 137.

  97. 97.

    Ibid.

  98. 98.

    Ibid., at 44, Dispositive.

  99. 99.

    Judgment, Kaing Guek Eav (001/18-07-2007/ECCC-E188), Trial Chamber, 26 July 2010, § 246 (hereafter Judgment in Case 001).

  100. 100.

    Ibid., § 246.

  101. 101.

    Ibid., § 247.

  102. 102.

    Studzinsky 2013, at 179, 180. See also 180 on lack of action on forced marriage.

  103. 103.

    Judgment in Case 001, supra note 99, § 284.

  104. 104.

    Ibid., §§ 293, 294 (stating that it was foreseeable that Duch could be held criminal liable for rape under article 5 of the ECCC Law), 296, 361.

  105. 105.

    Ibid., § 295.

  106. 106.

    Ibid., § 362.

  107. 107.

    Ibid., § 365.

  108. 108.

    Ibid., § 362, notes 666 and 670.

  109. 109.

    Ibid., § 362, note 666 citing Judgment, Kunarac, Kovac and Vukovic (IT-96-23 & IT-96-23/1-A), Appeals Chamber, 12 June 2002, § 127.

  110. 110.

    For a summary of these definitions, see Eriksson 2011, at 364–408, 424–430.

  111. 111.

    Judgment in Case 001, supra note 99, § 362, note 666, citing Judgment, Akayesu (ICTR-96-4-T), Trial Chamber, 2 September 1998, § 598.

  112. 112.

    Ibid., § 362, note 666, citing Judgment, Furundžija (IT-95-17/1-T), Trial Chamber, 10 December 1998, § 177. Curiously, it cited the Special Court for Sierra Leone’s definition of rape in Sesay et al., supra note 50, §§ 145–146, but did not note that the Sesay definition of rape is, in fact, different from the other cases cited as it follows the actus reus of rape as defined in the International Criminal Court’s Elements of Crimes document and the mens rea requirement set out in the ICTY’s Kunarac judgment. The ECCC did not refer to the Special Court’s earlier trial judgment in Brima et al., supra note 50, § 693, in which that court followed the ICTY’s Kunarac approach in defining rape.

  113. 113.

    Judgment in Case 001, supra note 99, § 363. This last comment goes to the fact that many domestic jurisdictions require proof of resistance, either explicitly or as a matter of courtroom practice: Eriksson 2011, at 90–91.

  114. 114.

    Judgment in Case 001, supra note 99, § 364.

  115. 115.

    Ibid.

  116. 116.

    Ibid., § 366.

  117. 117.

    Ibid.

  118. 118.

    Ibid., §§ 366, 559, 568.

  119. 119.

    Ibid., §§ 246, 366; Furundžija, supra note 112, §§ 163–164.

  120. 120.

    Judgment in Case 001, supra note 99, §§ 354, 355. Note that the Trial Chamber also confirmed that rape amounting to torture could also be considered persecution as a crime against humanity: § 280.

  121. 121.

    Kunarac, supra note 109, § 150.

  122. 122.

    Naming has expressive import, as it labels something otherwise hidden and explains it implications: Cook and Cusack 2010, at 39.

  123. 123.

    Torture requires proof of intention to cause severe pain and suffering and that those who carried out the torture are acting in an official capacity: Judgment in Case 001, supra note 99, § 358–359. Note that the method of reasoning by the Trial Chamber seems to incorrectly imply that the prosecution must first prove the elements of rape (non-consent, penetration), then rape as fitting within the elements of torture elements.

  124. 124.

    Appeal Judgment, Kaing Guek Eav (001/18-07-2007/ECCC-F28), Supreme Court Chamber, 3 February 2012, § 168 (hereafter Appeal Judgment in Case 001).

  125. 125.

    Ibid., § 168.

  126. 126.

    Ibid.

  127. 127.

    Ibid.

  128. 128.

    Ibid., §§ 175–176, 213. Note: this is a replication of an argument made in 2011 by the accused in Case 002, and on which they were successful (see infra).

  129. 129.

    Ibid., § 176.

  130. 130.

    Ibid., § 178.

  131. 131.

    The International Crimes (Tribunals) Act, 1973 (Act No. XIX of 1973) of Bangladesh lists rape as a crime against humanity in section 3(2)(a), available at http://bdlaws.minlaw.gov.bd/print_sections_all.php?id=435 (visited 15 June 2015).

  132. 132.

    Appeal Judgment in Case 001, supra note 124, § 179.

  133. 133.

    Ibid., § 182.

  134. 134.

    Ibid., §§ 205 and 208: The Supreme Court Chamber found that the definition of torture in the 1975 Declaration on Torture was indicative of customary international law at the time.

  135. 135.

    Ibid., §§ 210, 213.

  136. 136.

    Ibid., § 213.

  137. 137.

    Civil Party Lead Co-Lawyers’ Response to the Co-Prosecutors’ Request to Re-Characterize the Facts Establishing the Conduct of Rape as a Crime Against Humanity, Nuon Chea and others (002/19-09-2007/ECCC-E99/1), Trial Chamber, 21 July 2011, §§ 28, 31 (hereafter Civil Parties on Rape as a Crime Against Humanity).

  138. 138.

    Report of the Secretary-General on Khmer Rouge Trials, UN Doc. A/57/769 (31 March 2003) at Annex, article 2(1), which recognizes the Cambodian Law on the Establishment of the Extraordinary Chambers in the Courts of Cambodia, listing the crime against humanity of rape.

  139. 139.

    Appeal Judgment in Case 001, supra note 124, § 176.

  140. 140.

    Plesch et al. 2014, 349–381. Plesch et al. refer to the case brought by the Chinese War Crimes Military Tribunal against Japanese officer Takashi Sakai: 357–358. They make the point that crimes against humanity were considered by many to be subsumed under war crimes at that time, at 357, and that the archives reveal a number of rape as a war crime prosecutions, at 352–353, 359, 364–366.

  141. 141.

    Ibid., at 359–360.

  142. 142.

    Ibid., at 358, 360–361.

  143. 143.

    Askin 2013, at 33.

  144. 144.

    Civil Parties on Rape as a Crime Against Humanity, supra note 137, § 28.

  145. 145.

    Report of the World Conference of the International Women’s Year, Mexico City, 19 June–2 July 1975, Declaration of Mexico on the Equality of Women and their Contribution to Development and Peace 1975, UN Doc. E/CONF.66/34, para. § 28.

  146. 146.

    Williams and Palmer 2015, at 462.

  147. 147.

    Ibid., citing Furundžija, supra note 112, § 184.

  148. 148.

    Closing Order Case 002, supra note 21, § 1426.

  149. 149.

    Ibid., § 1427.

  150. 150.

    Ibid., § 1429.

  151. 151.

    Ibid.

  152. 152.

    Ibid., § 1432.

  153. 153.

    Ibid., § 1431.

  154. 154.

    Ibid.

  155. 155.

    Ibid.

  156. 156.

    Ibid., § 1433.

  157. 157.

    Studzinsky 2013, at 181.

  158. 158.

    Ibid., at 183.

  159. 159.

    Ibid. See also Civil Parties on Rape as a Crime Against Humanity, supra note 137, §§ 33–40.

  160. 160.

    Studzinsky 2013, at 183.

  161. 161.

    Decision on Ieng Sary’s Appeal Against the Closing Order, Nuon Chea and others (002/19-09-2007/ECCC-D427/1/30), Pre-Trial Chamber, 11 April 2011, § 357 (hereafter Decision on Ieng Sary Appeal Against the Closing Order).

  162. 162.

    Ibid., § 371.

  163. 163.

    Ibid., § 367.

  164. 164.

    Ibid., § 368.

  165. 165.

    Studzinsky 2013, at 182–183; Killean 2015, at 339.

  166. 166.

    Decision on Ieng Sary Appeal Against the Closing Order, supra note 161, § 364(1).

  167. 167.

    Ibid., § 371.

  168. 168.

    Ibid., § 372.

  169. 169.

    Ibid., § 373.

  170. 170.

    Ibid., § 396.

  171. 171.

    Ibid., § 378.

  172. 172.

    Co-Prosecutors’ Request for the Trial Chamber to Recharacterize the Facts Establishing the Conduct of Rape as the Crime Against Humanity of Rape Rather than the Crime Against Humanity of Other Inhumane Acts, Nuon Chea and others (002/19-09-2007/ECCC-E99), Trial Chamber, 16 June 2011 (hereafter Co-Prosecutors’ Request on Rape as a Crime Against Humanity).

  173. 173.

    Ibid., § 5.

  174. 174.

    Ibid., § 16. They later provide the example of the Bangladeshi law establishing rape as a crime against humanity (see note 131 above): Co-Prosecutors’ Consolidated Reply to Defence Responses to Co-Prosecutors’ Requests to Recharacterize Charges in the Indictment and to Exclude the Nexus Requirement for an Armed Conflict to Prove Crimes Against Humanity, Nuon Chea and others (002/19-09-2007/ECCC-E95/6), Trial Chamber, 11 August 2011, § 87 (hereafter Co-Prosecutors’ Consolidated Reply on Crimes Against Humanity).

  175. 175.

    See Report of the Secretary-General, UN Doc. S/25/704 (3 May 1993), § 34: the ICTY should only apply rules that were ‘beyond any doubt part of customary international law’.

  176. 176.

    Co-Prosecutors’ Request on Rape as a Crime Against Humanity, supra note 172, § 7.

  177. 177.

    Civil Parties on Rape as a Crime Against Humanity, supra note 137, §§ 3, 14–16, 18–19, 24. They pointed to additional pre-1975 precedent for the national prosecution of rape as a CAH: § 23. They also noted the absence of female layers and members of the International Military Tribunals as a factor in the neglect and omission of rape as a crime against humanity: § 17.

  178. 178.

    Co-Prosecutors’ Consolidated Reply on Crimes Against Humanity, supra note 174, § 79.

  179. 179.

    Severance Order Pursuant to Internal Rule 89ter, Nuon Chea and others (002/19-09-2007/ECCC-E124), Trial Chamber, 22 September 2011, § 5. See § 160 for the sidestepping.

  180. 180.

    Further Information Regarding Remaining Preliminary Objections, Nuon Chea and others (002/19-09-2007/ECCC-306), Trial Chamber, 25 April 2014, § 3.

  181. 181.

    Decision on Additional Severance of Case 002, supra note 69, § 33.

  182. 182.

    Closing Order in Case 002, supra note 21, at 458 and 785.

  183. 183.

    Williams and Palmer 2015, at 467.

  184. 184.

    Case 004 Sexual and Gender-Based Violence Announcement, supra note 85. Rapes prior to execution were a common practice, especially of females from ethnic Cambodian communities, such as the Cham: Braaf 2014, at 24–31.

  185. 185.

    Case 004 Sexual and Gender-Based Violence Announcement, supra note 85.

  186. 186.

    Ibid.

  187. 187.

    This is the impetus behind the International Protocol on the Documentation and Investigation of Sexual Violence in Conflict: Basic Standards of Best Practice on the Documentation of Sexual Violence as a Crime Under International Law (2014), available at https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/319054/PSVI_protocol_web.pdf (visited 15 June 2015).

  188. 188.

    Amnesty International, ‘Cambodia—Breaking the Silence: Sexual Violence in Cambodia’ (2015), available at https://www.amnesty.org/en/documents/asa23/001/2010/en/ (visited 15 June 2015).

  189. 189.

    Williams and Palmer 2015, at 463.

  190. 190.

    Studzinsky 2013, at 179.

  191. 191.

    Ibid., at 180.

  192. 192.

    Several accounts exist, outside the context of forced marriages, of males being raped by female Khmer Rouge cadres: Nakagawa 2008, at 41–42.

  193. 193.

    Except for the jurisprudence of the ICTY on male sexual assault, see Oosterveld 2014, at 110.

  194. 194.

    Williams and Palmer 2015, at 466: the judgment in Case 002/01 ‘largely failed to recognise a gendered dimension to forced transfer’.

  195. 195.

    Outlined at id. at 465–466. See also the Khmer Rouge policy set out in the Closing Order Case 002, supra note 21, § 215), of destroying the Vietnamese group on the theory of matrilineal descent.

  196. 196.

    International Criminal Tribunal for Rwanda (2014) Prosecution of Sexual Violence—Best Practice Manual for the Investigation and Prosecution of Sexual Violence Crimes in Post-Conflict Regions: Lessons Learned from the Office of the Prosecutor of the International Criminal Tribunal for Rwanda, ICTR, Arusha.

  197. 197.

    Ye 2014, 23–38.

  198. 198.

    Ní Aoláin et al. 2011, at 45–49.

References

  • Anderson K (2005) Turning Reconciliation on Its Head: Responding to Sexual Violence Under the Khmer Rouge. Seattle Journal of Social Justice 3:785–823

    Google Scholar 

  • Askin K (2013) Treatment of Sexual Violence in Armed Conflicts: A Historical Perspective and the Way Forward. In: de Brouwer A, Ku C, Römkens R, van den Herik L (eds) Sexual Violence as an International Crime: Interdisciplinary Approaches. Intersentia, Antwerp, pp 19–55

    Google Scholar 

  • Balthazard M (2013) Gender-based Violence During the Khmer Rouge: A Forgotten Issue?. Cambodian Defenders Project, Phnom Penh

    Google Scholar 

  • Braaf R (2014) Sexual Violence Against Ethnic Minorities During the Khmer Rouge Regime. Cambodian Defenders Project, Phnom Penh

    Google Scholar 

  • Center for Law and Globalization (2015) How Are Genocide and Sexual Assault Related? Accessed 21 June 2015

    Google Scholar 

  • Cook RJ, Cusack S (2010) Gender Stereotyping: Transnational Legal Perspectives. University of Pennsylvania Press, Philadelphia

    Google Scholar 

  • Copelon R (1994) Surfacing Gender: Re-engraving Crimes Against Women in Humanitarian Law. Hasting’s Women’s Law Journal 5(2):243–266

    Google Scholar 

  • De Langis T (2014) This is Now the Most Important Trial in the World: A New Reading of Code 6#, the Rule Against Immoral Offenses Under the Khmer Rouge Regime. Cambodia Law and Policy Journal 3:61–78

    Google Scholar 

  • De Langis T, Ye B (2011) Forced Marriages as Mirrors of Cambodian Conflict Transformation. Peace Review 23(4):469–475

    Google Scholar 

  • Eriksson M (2011) Defining Rape: Emerging Obligations for States under International Law?. Martinus Nijhoff Publishers, Leiden

    Google Scholar 

  • Killean R (2015) An Incomplete Narrative: Prosecuting Sexual Violence Crimes at the Extraordinary Chambers in the Courts of Cambodia. Journal of International Criminal Justice 13:331–352

    Google Scholar 

  • Mollica RF, Donelan K, Tor S, Lavelle J, Elias C, Frankel M, Blendon RJ (1993) The Effect of Trauma and Confinement on the Functional Health and Mental Status of Cambodians living in the Thai-Cambodia camps. J Am Med Assoc 270(5):581–586

    Google Scholar 

  • Nakagawa K (2008) Gender-Based Violence during the Khmer Rouge Regime: Stories of Survivors from the Democratic Kampuchea (1975-1979), 2nd edn. Cambodian Defenders Project, Phnom Penh

    Google Scholar 

  • Natale K (2011) ‘I Could Feel My Soul Flying Away from My Body’: A Study on Gender-Based Violence during Democratic Kampuchea in Battambang and Svay Rieng Provinces. Cambodia Defenders Project, Phnom Penh

    Google Scholar 

  • Ní Aoláin F, Haynes DF, Cahn N (2011) On the Frontlines: Gender, War, and the Post-Conflict Process. Oxford University Press, New York

    Google Scholar 

  • Oosterveld V (2011) Forced Marriage and the Special Court for Sierra Leone: Legal Advances and Conceptual Difficulties. Journal of International Humanitarian Legal Studies 2:127–158

    Google Scholar 

  • Oosterveld V (2012) Gender and the Charles Taylor Case at the Special Court for Sierra Leone. William and Mary Journal of Women and the Law 19(1):7–33

    Google Scholar 

  • Oosterveld V (2014) Sexual Violence Directed Against Men and Boys in Armed Conflict or Mass Atrocity: Addressing a Gendered Harm in International Criminal Tribunals. Journal of International Law and International Relations 10:107–128

    Google Scholar 

  • Plesch D, Sácouto S, Lasco C (2014) The Relevance of the United Nations War Crimes Commission to the Prosecution of Sexual and Gender-Based Crimes Today. Crim Law Forum 25(1–2):349–381

    Google Scholar 

  • So F (2011) The Hijab of Cambodia: Memories of Cham Muslim Women after the Khmer Rouge. Documentation Center of Cambodia Documentation Series No. 16, Phnom Penh

    Google Scholar 

  • Studzinsky, S (2008), ECCC Press Statement by Civil Parties Lawyer Silke Studzinsky, First Civil Party Application before the Extraordinary Chambers in the Courts of Cambodia (ECCC) on Gender-Based Violence under the Khmer Rouge Regime, 3 September 2008

    Google Scholar 

  • Studzinsky S (2013) Victims of Sexual and Gender-Based Crimes Before the Extraordinary Chambers in the Courts of Cambodia: Challenges of Rights to Participation and Protection. In: de Brouwer A, Ku C, Römkens R, van den Herik L (eds) Sexual Violence as an International Crime: Interdisciplinary Approaches. Intersentia, Antwerp, pp 173–186

    Google Scholar 

  • Toy-Cronin B (2006) ‘I Want to Tell You’: Stories of Sexual Violence during Democratic Kampuchea (1975-1979). Cambodian Defenders Project, Phnom Penh

    Google Scholar 

  • Ung L (2000) First They Killed My Father. Harper Collins, New York

    Google Scholar 

  • Viseur Sellers P (2011) Wartime Female Slavery: Enslavement? Cornell International Law Journal 44(1):115–143

    Google Scholar 

  • Williams S, Palmer E (2015) The Extraordinary Chambers in the Courts of Cambodia: Developing the Law on Sexual Violence? International Criminal Law Review 15:452–484

    Google Scholar 

  • Ye B (2014) Transitional Justice Through the Cambodian Women’s Hearings. The Cambodia Law and Policy Journal 3:23–38

    Google Scholar 

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Authors and Affiliations

  1. University of Western Ontario, London, Canada

    Valerie Oosterveld

  2. ICC, The Hague, The Netherlands

    Patricia Viseur Sellers

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  1. Valerie Oosterveld
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    Ignaz Stegmiller

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Oosterveld, V., Sellers, P.V. (2016). Issues of Sexual and Gender-Based Violence at the ECCC. In: Meisenberg, S., Stegmiller, I. (eds) The Extraordinary Chambers in the Courts of Cambodia. International Criminal Justice Series, vol 6. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-105-0_12

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