Case 003

Case 003 examines the torture affected by the policies of the CPK on their worksites, and across Kampong Som, by targeting the Thai and the Vietnamese, along with civilians and those within the ranks of the RAK. The initial submission named two suspects : Meas Muth and Sou Met. The charges against Sou Met were dismissed on 2 June 2015, following his death, while the investigation against Meas Muth ensued. The National and International Co-Investigating judges differed on whether Meas Muth fell under the ECCCC’s personal jurisdiction as a senior leader or one of the persons most responsible for crimes committed during the period of the DK. On 28 November 2018, the Co-Investigating judges issued two separate orders owing to this disagreement. The Pre-Trial Chambers held 3 days of hearings on the appeals against the closing orders. The investigation against Muth was dismissed.


One of the policies pursued by the CPK was that of Forced Marriages. Marriages were arranged based on political, ethnic and class backgrounds to ensure population growth and prevent marriages between “good people” and “bad elements”. Evidence shows women being forced to relocate in order to marry them to soldiers of the RAK. The International Co-Investigating Judge (ICIJ) delves into the intricacies of the Marriage Policy, detailing the different ways in which it contributed to the torture exacted by the CPK. Most of these details have been extracted from interviews with witnesses and the tales they have recounted. However, the ICIJ does not give a concrete number of people/couples affected by the policy, and he cites a general lack of documentation regarding the germination and implementation of the policy.


The legal discussion on the matter is constrained. It alludes to the physical and mental trauma that arose from the Marriage Policy, and briefly mentions rape ( forced consummation of the marriages). It recalls the definition of rape as endorsed by the Trial Chamber in Case 001. However, without any concrete evidence, the ICIJ states that the only only reasonable inference on the evidence was that this attack on human dignity was intentional. Thus, the crime against humanity of other inhumane acts based on forced marriage and rape is made out. Given the significant role that Meas Muth held in the dissemination of the policy, he was indicted on the grounds of crimes against humanity of other inhumane acts ( namely forced marriage and rape) committed through (Joint Criminal Enterprise) JCE, based on conclusions drawn from evidence, punishable under Articles 5,29,and 39 of the ECCCC law.


On 7 September 2009, the International Co-Prosecutor filed two introductory submissions requesting the Co-Investigating Judges to initiate an investigation into 5 persons for a number of national and international crimes committed in the territory of the Kingdom of Cambodia - referred to as the Democratic Kampuchea from 17 April 1975 to 6 January 1979. These two submissions were later divided into Case 003 and 004. This summary delves into the details of Case 003.


Background:

Between late April 1975 and 6 January 1979, the Communist Party of Kampuchea (CPK) carried out extensive attacks against the civilian population in Kampong Som, and in the territorial waters and islands off the coast of Democratic Kampuchea (DK) and across zones in the ranks of of the Revolutionary Army of Kampuchea (RAK). The modalities of these attacks were as follows:


  1. Majority of the population was forcibly relocated to cooperatives and worksites established by the CPK throughout the country. The aim was to establish an autarkic socialist state based on and agrarian economy. The Civilian population was often exposed to working and living conditions that resulted in death either by execution or exhaustion, starvation and disease.

  2. Vietnamese and Thai vessels were often captured with the intent to torture and kill crew members and passengers which included women, children and the elderly. While the Vietnamese were executed without a second thought, records have shown that Thai prisoners were sometimes traded to Thailand in return for goods and commodities

  3. Those within and outside the CPK ranks who were deemed as “bad elements” or “enemies” were identified, monitored and re-educated or killed. Anyone suspected of even a minor wrong doing or disloyalty were considered potential targets.

  4. The CPK identified, targeted, and systematically purged particular categories of people who were perceived as potential threats to the DK regime or held views that contradicted those of the CPK doctrine. These included RAK soldiers, people forcibly relocated from urban areas, former soldiers, other officials of the Khmer Republic and others perceived to be a threat to the CPK’s goals to refashion the Cambodian Society.

  5. Regulation of marriage in order to increase the population and build ideologically pure families. The CPK forced people to marry a spouse chosen by the “ Angkar” ( the Standing Committee as the highest body of Khmer Rouge) and were often compelled to consummate the marriage.


The planning and implementation of these attacks involved officials at all levels of the RAK and parts of the Civilian Administration, and were carried out in order to assure the implementation of the CPK’s larger political agenda.


The Accused:

The introductory submission initially named two suspects : Meas Muth and Sou Met. Sou Met was the was the Ex-Commander of the Air Force, while Meas Muth held a myriad of positions within the CPK ranks, namely: General Staff Deputy Secretary, Division 164 (including the navy) Secretary, and Kampong Som Autonomous Sector Secretary, and Alleged member of the Central Committee. The Judicial investigation against Sou Met was terminated on 2 June 2015, following his death.


Charges Against The Accused:

Meas Muth was charged on the following counts:


  • Genocide;

  • Crimes against Humanity, namely murder; extermination; enslavement; imprisonment; torture; persecution; other inhumane acts (inhumane treatment, enforced disappearances, forced labour, forced marriage, rape and attacks on human dignity due to conditions of detention)

  • Grave Breaches of the Geneva Conventions of 1949, namely wilful killing; wilfully causing great suffering or serious injury to body or health, torture and unlawful confinement of civilians.

  • Violations of the 1956 Cambodian Penal Code, namely premeditated homicide.

These crimes were allegedly committed


  • at various security centres, among them the S-21 Security Centre (Tuol Sleng)

  • additionally against members of Divisions 164, 502, 117, and 310

  • at Wat Enta Nhien Security Centre

  • at Stung Hav worksite

  • by the Navy of Democratic Kampuchea in and around the islands claimed by Democratic Kampuchea

  • at the Ream area co-operative including worksites at Kang Keng and Bet Trang, the Durian Plantation Execution Site, and the Toek Sap Security Centre

  • in Kampong Som.


Procedural Background:

In April 2011, the case was dropped under pressure from the Cambodian Government. The Cambodian judges of the ECCCC unanimously agreed to drop the case, and Meas Muth was acquitted under unusual circumstances. However, in spite of the withdrawal of charges, further investigations were carried out against Muth.


On Friday 31 October 2014, the International Co-Prosecutor filed a Supplementary Submission in Case 003 that was principally intended to remove any ambiguities concerning the scope of the Introductory Submission. The International Co-Prosecutor first reaffirmed clarifications submitted in various previous filings regarding crimes falling within and outside the scope of the investigation, and then provided further clarifications.


A request was also made to include in the investigation additional possible crimes in Kompong Som that have come to light after the filing of the Case 003 Introductory Submission. The International Co-Prosecutor requested that the Co-Investigating Judges consider the additional crime of forced marriage and evidence that these couples were coerced to have sexual relations (rape). Evidence now available indicates instances where groups of up to 20 couples were forcibly married in a single ceremony, and where women sent from other zones or sectors to Kampong Som were forcibly married to military cadres.


In March 2015, the ECCCC decided to charge Muth in absentia by the international Co-Investigating Judge. The national and international co-investigating judges differed on whether Meas Muth fell under the ECCCC’s personal jurisdiction as a senior leader or one of the persons most responsible for crimes committed during the period of the DK. On 28 November 2018, the Co-Investigating judges issued two separate orders owing to this disagreement. The Pre-Trial Chambers held 3 days of hearings on the appeals against the closing orders.


The case against Muth was dismissed. The reason stated : “The Introductory Submission indicated that the responsibility for 17,000 people, including over 8000 soldiers lay with Meas Muth. However, the evidence collected did not specify these numbers.” Comparing the judgement in Case 001, and comparing the roles of Duch ( the accused in Case 001) and that of Meas Muth, the Nation Co-Investigating Judge concluded that while Meas Muth held several roles , he did not exercise much power. His participation was inactive, unimportant, and not proximate to the commission of the crimes.” Hence, it was decided that the ECCCC had no personal jurisdiction over Meas Muth, and the case, consequently dismissed.


Findings on Forced Marriages of Civilians and Members of the RAK:

From late 1975 onwards, the CPK planned to increase the Cambodian population from 8 to 15-20 million over 10-15 years. Its civilian and military apparatus implemented a policy according to which people were made to marry spouses that the “Angkar” selected for them. These spouses were selected keeping in mind political, ethnic, and class backgrounds in order to achieve population growth and prevent marriages between “bad elements” and those with “good” backgrounds.


The Marriage Policy was pursued with such fervour that it was widely disseminated across the country through slogans, banners , meetings, and study sessions that were held for both civilian and military DK administration. Meas Muth himself stated during a study session in 1978 that the Marriage Policy aimed to increase the population to 20 million.


Based on interviews and testimonies with witnesses, the International Co-Investigating Judge (ICIJ) in this case makes the following observations regarding the implementation of the Marriage Policy in his closing order.


  1. The implementation of the Marriage Policy typically (but not necessarily) entailed violence and coercion. While certain refusals to marriage were tolerated, and evidence indicated that several witnesses were personally involved in the marriages, there was a general atmosphere of fear in Kampong Som, which prevented people from refusing to get married. Moreover, objections did not prevent the marriages from taking place. Many people state that they or others could not, or dared not, refuse because they feared repercussions. In some cases , such fear was caused by explicit threats, in others , it was due to the general fear of what might happen if one opposed the regime, because of a refusal to marry or to consummate the marriage often led to punishment : re-education, physical violence, rape or being forced to watch women being raped or being killed.

  2. The CPK assumed authority in spousal selection. Spouses were selected based on ethnic, political, and class backgrounds. People were matched with strangers and seldom notified about their wedding or their spouse more than a day in advance. Hearsay evidence shows that soldiers were asked for opinions regarding their spouses and women were often transferred for selection. In addition to a lack of agency while choosing partners, people were also not allowed to divorce the spouses selected for them by the “Angkar”.

  3. Weddings were conducted as group ceremonies arranged/presided by civilian and military CPK personnel. They were carried out with very little regard for Buddhist/Cambodian traditions, without family members or parents present, and were often just brief meetings where the couples either exchanged vows or were declared married.

  4. Newlyweds were typically required to cohabitate for short periods, and in some cases, forced to consummate their marriage. During this period, surveillance of couples by CPK personnel was common which may have led to non-consensual sexual intercourse and violence at the hands of male partners. Several witnesses who were married against their will attest to initially refusing or being afraid to consummate their marriage, before later relenting or agreeing to have sexual inetcourse agaisnt their wishes. Despite the goal of the Marriage Policy being to increase the population, only one witness refers to a requirement to visit regularly after the wedding.

Multiple eyewitnesses attest to marriages occurring without consent and in coercive circumstances through the period of DK in Kampong Som town, Kang Keng, Stung Hav, and Ou Oknha Heng. The number of couples married in these ceremonies range from 1 to 71. Witnesses have also reported feeling pain or disheartenment at being married without their family being told, disappointment at the wedding itself, and unhappiness at being separated after the wedding and anger at not being told earlier. While the evidence of direct sexual violation allows inferences of pain and suffering both physical and mental, there is limited testimony on the level of pain and suffering caused by the implementation of the Marriage Policy in Kampong Som.


However, eyewitness accounts of forced marriage in Kampong Som are not particularly numerous considering : 1) the coercive consequences and circumstances that prevailed in the implementation of the Marriage Policy both DK wide and in Kampong Som , 2) the widespread implementation of the Marriage Policy in Kampong Som and 3) That at least some marriages that occurred on Kampong Som were forced, it is more likely that many more forced marriages took place in Kampong Som than those for which eye-witness accounts are available.

Hence,it is not possible on the available evidence to provide even a conservative estimate of the number of forced marriages that occurred in Kampong Som.

With regards to Meas Muth’s participation, it is noted that while he was directly involved in the dissemination of the Marriage Policy in Kampong Som, there is no evidence that he himself conducted weddings or attended ceremonies. Local and military officials under his control in Kampong Som decided who should be matched, planned weddings and conducted ceremonies.


Crimes Under the Jurisdiction of the ECCC:

The sources of applicable international law during the international law during the relevant period are international conventions, customary international law, and general principles of law recognised by the community of nations.


Article 5 of the ECCCC law gives the ECCCC Jurisdiction over the crimes against humanity, which it defines as any act committed as a part of a widespread or systemic attack directed against civilian population on national, political, ethnical, racial or religious grounds such as murder, extermination, enslavement, impriosnment, torture, rape, persecutions on political, racial and religious grounds and other inhumane acts. These crimes against humanity with the exception of rape were a part of customary international law between 1975 and 1979. With regard to rape the Supreme Court of Cambodia (SCC) held that it was not a distinct crime against humanity between 1975 and 1979, the period covered by the ECCCC jurisdiction. However the ECCCC has jurisdiction over rape as an act of torture when all other elements of torture are satisfied and as an act amounting to other inhumane acts


The SCC has held that rape may amount to torture when all other elements of the crime of torture are also established. And instances of enforced disappearances, rape, physical abuse of prisoners inhumane conditions of detention, and forced marriage have previously been found to be of the same nature and gravity as other enumerated crimes against humanity.


As endorsed by the Trial Chamber in case 001, the SCC characterised rape as :

Actus Rea - The sexual penetration, however slight, of the anus and the vagina of the victim by a penis or any other object; or the mouth of the victim by a penis where such sexual penetration occurs without the consent of the victim. Consent for this purpose must be given voluntarily as a result of the victim’s free will assessed in the context of the surrounding circumstances.

Mens Rea - The perpetrator must have acted with the intent to effect this sexual penetration in the knowledge of lack of consent of the victim.


With regards to this particular case, the ICIJ rejects submissions by the Defence which states that forced marriage is subsumed under “other inhumane acts” as the requirement to consent of marriage was enumerated in international human rights instruments.


Legal Findings on Crimes Against Humanity of Other Inhumane Acts (Forced Marriage & Rape)

The evidence found with regard to forced marriages in Kampong Som show that the victims of forced marriages felt trapped and unhappy in the marriages and lived with regret and sorrow at not being able choose their spouse or marry traditionally. While victims of sexual violence typically suffer from physical injury and pain as well as a myriad of psychological problems including anger, grief, fear, nightmares, depression etc. However, there has been very little evidence to corroborate. Forced marriage, and coercion to consummate the marriage amount to attacks on human dignity caused serious bodily injury and mental suffering. The ICIJ states that the only reasonable inference on the evidence was that this attack on human dignity was intentional. Thus, the crime against humanity of other inhumane acts based on forced marriage and rape is made out.



Legal Findings on Modes of Liability

The evidence available establishes that Meas Muth and Sou Met amongst other senior cadres of the RAK shared a common purpose of implementing CPK policies of forced labor on worksites, re-education, torturing those of Vietnamese or Thai ethnicity and forced marriages of civilians and soldiers. These policies were implemented on the basis of a Joint Criminal Enterprise (JCE), though the commission of international crimes by Meas Muth and other members of the JCE, with persons who were not members of the JCE being used as tools.

With regards to the CPK policy of Forced Marriages in particular, it was found that Muth made significant contributions to the CPK policy on forced marriage by disseminating the policy on marriage and the need to increase the population through his speeches at meetings. The only reasonable conclusion based on the totality of the evidence is that he also promulgated the rule whereby couples were required to consummate their marriages regardless of their consent.


Indictment: Crimes Against Humanity: Forced Marriage in Kampong Som

The ICIJ on this recommends that Meas Muth be indicted on the grounds of crimes against humanity of other inhumane acts ( namely forced marriage and rape) committed through JCE in the alternative through planning or ordering and in the further alternative through superior responsibility. Based on conclusions drawn from evidence, punishable under Articles 5,29,and 39 of the ECCCC law.