Factual Background
The scope of Case 002/01 extends to the crimes against humanity committed during the course of movement of population (phases one and two), and the executions of Khmer Republic officials at Tuol Po Chrey. Initially, there were four accused persons in the case: Nuon Chea, Khieu Samphan, Ieng Thirith and Ieng Sary. However, Ieng Thirith was found unfit to stand trial due to the impact of a progressive, dementing illness (on 17 November 2011) and the Chamber ordered the severance of the charges against her from the case. Ieng Sary’s death on 14 March 2013 extinguished all criminal and civil actions against him.
Nuon Chea served as the Deputy Secretary of the Communist Party of Kampuchea (CPK) Central and Standing Committees and also held several roles within the government of Democratic Kampuchea between April 1975 and January 1979. Khieu Samphan had various positions and roles in the CPK and Democratic Kampuchea including President of the State Presidium, Chairman of Political Office 870 and member of the CPK Central Committee during the same time period.
Charges of the Accused
While serving in these capacities, the accused committed, via a joint criminal enterprise: murder, extermination; persecution on political grounds; and other inhumane acts comprising attacks against human dignity, forced transfer and enforced disappearances. Particularly, the CPK leaders designed and implemented a series of reforms, including the formulation of five Policies:
1. The repeated movement of the population from towns and cities to rural areas, as well as from one rural area to another;
2. The establishment and operation of cooperatives and worksites;
3. The re-education of “bad elements” and killing of “enemies”, both inside and outside the Party ranks;
4. The targeting of specific groups, in particular the Cham, Vietnamese, Buddhists and former officials of the Khmer Republic, including both civil servants and former military personnel and their families; and
5. The regulation of marriage.
The two policies – concerning forced movement (Policy 1) and targeting of former officials (Policy 4) were subjects of the charges in Case 002/01.
Between September and November 2007, the accused were arrested by order of the Co-Investigating Judges, transferred to the ECCC detention facility and notified of the charges against them. Following a three-year judicial investigation, the Co-Investigating Judges, in 2010, charged the accused for crimes against humanity, genocide, grave breaches of the Geneva Conventions and violations of the 1956 Penal Code. The Pre-trial Chamber, upon appeal, confirmed the charge and remitted the accused to trial in January 2011.
Observations of the Chamber on the Regulation of Marriage
Under the garb of the Policy on the Regulation of Marriage, the CPK arranged marriages and encouraged procreation in order to increase the population of Democratic Kampuchea. The Chamber heard some evidence concerning arranged and involuntary marriages, including that those who did not agree were sometimes beaten, raped or killed. There were also instances where couples wed by Angkar (literally ‘organisation’) were put under surveillance in order to enforce procreation.
The footnotes of the judgement indicate the allegations of atrocities committed in furtherance of this Policy. A woman was forced to marry someone after her husband died and she was beaten and imprisoned when she refused. Militiamen were found to spy couples on their wedding night. A 16-year-old forced was to marry, assaulted and raped when she refused to have sex with her husband as militiamen watched.
In a certain case, the Unit Chief had even warned a woman that she would be executed if she did not sleep with her husband. In another case, militiamen who were monitoring a forcibly married couple saw they did not “get along” and took them away to be killed. In a forced marriage where the couple did not get along, the Angkar sent the woman to be re-educated.
The accused, however, claimed to know nothing with respect to this policy. Although the Chamber found some evidence of arranged and involuntary marriages, it was unable to find that regulation of marriage was a CPK policy. The nature and implementation of the policy was to be examined in Case 002/02. The Chamber did not examine these rapes in the context of crimes against humanity.
Crimes against Humanity and Individual Criminal Responsibility
The accused were charged with several crimes against humanity, including murder, extermination and persecution on political grounds, which are recognised under customary international law. They were also charge with “other inhumane acts” as crimes against humanity, namely enforced disappearances, forced transfer and attacks against human dignity.
The Chamber found both the accused individually criminally responsible on all these counts. Ultimately, the Chamber awarded a sentence of life imprisonment to both the accused persons.
The Pre-Trial Chamber, in its Closing Order, had affirmed that rape may be categorised as another inhumane act. However, the Chamber itself did not discuss this proposition. The Chamber has also been criticized for failing to recognize a gendered dimension to forced transfer.
Factual Background
In continuance of Case 002/01, Case 002/02 dealt with the crimes against humanity, grave breaches of the Geneva Conventions of 1949 and genocide alleged to have been committed at a number of cooperatives, worksites, security centres and execution sites (including S-21 Security Centre and Choeung Ek), in relation to the targeting of specific groups, namely the Cham, the Vietnamese, Buddhists and former Khmer Republic officials, the regulation of marriage, and within the context of the armed conflict with Vietnam.
Charges against the Accused
The Accused were charged of committing crimes against humanity, grave breaches and genocide by participating in a joint criminal enterprise. They were also charged of planning, ordering, instigating, aiding and abetting the crimes against humanity, grave breaches and genocide, in the context of the five policies introduced in the CPK regime.
With regard to the policy for the regulation of marriage, particularly, the Accused were charged with crimes against humanity – other inhumane acts through conduct characterised as forced marriage and rape in the context of forced marriage.
Forced Marriage during the Democratic Kampuchea period
In pre-Democratic Kampuchea, marriage in Cambodian culture was based on mutual trust between children and parents who chose their children’s spouses. This element was absent when the Party arrogated the role of the parents in arranging marriages, during the Democratic Kampuchea period.
The CPK designed a nationwide policy to regulate building and marriage, which was implemented by Party cadres at all administrative and military levels. This policy resulted in the replacing of roles that parents played in the selection of a suitable spouse, forcing couples to marry and forcing the production of children, for the purpose of increasing the country’s population within 10 to 15 years.
Evidence suggested that the authorities arranged marriages throughout the Democratic Kampuchea period and in numerous geographical locations throughout Cambodia. Individuals were married in a widespread climate of fear and the consent purportedly given either before or during wedding ceremonies did not amount in most cases to genuine consent.
After wedding ceremonies, arrangements were usually made by the local authorities for newly wedded couples to sleep in an assigned location, monitored by militiamen, specifically to have sexual intercourse. Both men and women felt forced to have sexual intercourse with their new spouse, and thus did so against their will. Couples who were found to have not had sexual intercourse were re-educated or threatened with being punished or killed.
Findings of the Chamber
In this context, the Chamber found that the crime against humanity of other inhumane acts through conduct characterised as forced marriage and rape in the context of forced marriage was committed. However, the Chamber recognized the offence of rape only in the context of forced marriage and did not examine the acts of rape as crimes against humanity on their own.