Rosemary Grey, University of Sydney Postdoctoral Fellow (Sydney Law School & Sydney Southeast Asia Center)
Photo: Phonm Penh, November 2018 (author)
On 17 April 1975, Khmer Rouge troops poured into Phnom Penh and began forcing its population into the countryside, marking the start of an oppressive regime that left around 2 million people dead in just under four years.
Last Friday in that same city, the Extraordinary Chambers in the Courts of the Cambodia (ECCC) convicted two leaders of that regime for grave breaches of the Geneva Conventions, crimes against humanity, and genocide.
Thus concluded the trial phase of the ECCC’s second case, which due to its enormity and the fading health of the accused, has been run in two segments (known as ‘Case 002/1’ and ‘Case 002/2’).
When the closing order (indictment) was issued in 2010, there were four accused, all former leaders in Pol Pot’s Communist Party of Kampuchea (CPK). By the end of the trial, only two of those accused remained alive.
Both men – Nuon Chea and Khieu Samphan – were too frail to sit in the courtroom for the whole hearing. Nuon Chea left to watch the hearing remotely soon after it commenced, and Khieu Samphan was absent intermittently, but was present and able to stand (with the aid of court staff) to receive his conviction and life sentence.
But while one or both of their chairs were often empty, the gallery was filled to capacity with roughly 500 people, including survivors who participated as ‘civil parties’ in the trial, Buddhist monks and nuns, government and United Nations representatives, ambassadors, local university students, press, NGO staff and academics. Outside, in the non-airconditioned shed that serves as the tribunal’s public foyer, another hundred people watched on screens.
It took just over two hours for Nil Nonn, the presiding judge, to read the summary of the judgment. Most people listened in Khmer; the rest of us followed the translation through headphones.
We heard about the establishment of forced worksites; the interrogation and execution of suspected dissidents; the targeting of ethnic minorities, Buddhists, and former state officials; and the regime’s practice of forcing men and women into marriages.
The summary was harrowing, but mostly genderless – making no reference to the different experiences of men and women during the Khmer Rouge period, or their respective social roles.
For example, Judge Nil did not mention that women and girls were frequently raped in detention centres or at worksites, although numerous studies (e.g. Nakagawa’s and Natale’s), as well as the indictment itself, refer to these rapes.
Friday’s largely genderless account is bound up in the history of the proceedings, including the initial investigations, which were conducted by an all-male team with no gender-awareness training; the introductory submission of the co-prosecutors, which made no mention of gender-based crimes; and the indictment, in which both investigating judges argued that the rapes committed in detention centres and worksites were not in line with the regime’s policy and therefore fell beyond the scope of the case (see Studzinsky 2012; Williams & Palmer 2015; Oosterveld & Sellers 2016).
Yet there were signs that the full Case 002/2 judgment, which will be issued ‘in due course’, will shed some light on the different experiences of men and women under Khmer Rouge rule.
Regarding the CPK’s co-option of marriage for political ends, Nuon Chea and Khieu Samphan were convicted for two crimes against humanity (rape and the imposition of forced marriages, both charged as ‘other inhumane acts’). Explaining these crimes at Friday’s hearing, Judge Nil stated:
There existed a nationwide policy to regulate familybuilding and marriage, which was implemented by Party cadres at all administrative and military levels. The CPK designed this policy, replacing the role of parents 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.
This conviction for ‘forced marriage’ is groundbreaking. It is the first conviction – of any international or internationalised court – for ‘forced marriage’ as a crime against humanity against male and female victims. It is also the first to address the commission of this crime on a national scale.
As the above statement shows, the judges also paid attention to the evidence showing that ensuring procreation was a central rationale for the CPK’s policy of forced marriage. Biologically and socially, that procreative function fell mainly to women – who were seldom given increased rations or exempt from forced labour during pregnancy – forms of gender violence that the judgment will hopefully acknowledge.
Friday’s hearing also shows that in regard to genocide, the judgment takes gender issues into account.
In this case, there were charges for genocidal acts against two groups: Cham Muslim people, and people of Vietnamese origin. The genocide against both groups allegedly occurred solely through killing, which at first glance, may not seem like a gendered crime. However, historical precedents show that it can be gendered, depending on how the group’s identity is passed from one generation to the next.
For example, twenty years ago, in the Akayesu case, the Rwanda Tribunal recognised that the genocide perpetrated by Hutu militia against the Tutsi group in Rwanda also involved the murder of some Hutu victims. It explained:
Even pregnant women, including those of Hutu origin, were killed on the grounds that the foetuses in their wombs were fathered by Tutsi men, for in a patrilineal society like Rwanda, the child belongs to the father’s group of origin.
In Cambodia, gendered understandings of ethnicity also played a part in genocidal attacks.
According to the co-prosecutors and civil parties, the Vietnamese minority was a matrilineal culture, meaning that children were thought to receive their Vietnamese identity from their mother. Hence, in mixed-ethnicity families where the mother was Vietnamese, the mother and children were more likely to be killed. By contrast, in mixed-ethnicity families where the father was Vietnamese, he alone would likely be killed.
In this sense, the violence against Vietnamese people in Cambodia was an example of what Patricia Sellers has called ‘genocide gendered’. Recongising this gendered aspect of genocide in Friday’s hearing, Judge Nil stated:
From 1975, the CPK considered the Vietnamese ethnicity to be matrilineal, and as a result, targeted in mixed families Vietnamese mothers and their children while sparing Khmer fathers, as well as targeted Vietnamese fathers while sparing Khmer mothers and children.
When it comes to telling the gendered history of life under Khmer Rouge rule, Case 002 was far from comprehensive. Yet Friday’s announcement shows that at the end of this epic trial, that history is beginning to be told on a world stage.
With thanks to Sarah Williams, Emma Palmer and Maria Elander for comments on the draft.