Blind in one eye? - Is the ICC a model of how sexual crimes should be investigated and treated?

The Tuol Sleng Museum in Phnom Penh,which was used as the notorious Security Prison 21 (S-21) by the Khmer Rouge communist regime.
Teaser Image Caption
Tuol Sleng - früher berüchtigtes Sicherheitsgefängnis 21 (S-21) der Roten Khmer, heute ein Museum.

The strides that international penal law has undergone over the past twenty years are remarkable: various international or hybrid courts have been established and the International Criminal Court is celebrating 10 years of existence this year. A multitude of rulings and research work meanwhile fill the library shelves. At UN level, numerous resolutions have been passed stipulating the catalogues of measures for combating sexual violence – especially that against women and girls – committed during armed conflicts.

However, in terms of investigating and prosecuting sexual violence as international crimes, significant shortcomings are still apparent. There is a multitude of reasons and causes for this, which I would like to trace by looking at investigations into sexual violence before the ECCC (Extraordinary Chambers in the Courts of Cambodia), but also before the ICC. In 2006, the attorney general of the ECCC conducted the first preliminary investigations on the basis of voluminous materials provided, above all, by the Documentation Center of Cambodia (DC Cam). The findings of the investigations were: no sexual violence took place. These findings were founded on the false and unverified assumption that, in their efforts to create a Communist agricultural country, the Khmer Rouge undoubtedly resorted to brutal means against their opponents and presumed enemies but that sexual violence was forbidden and consequently had been stringently prosecuted and punished.

For this reason, the investigating judges did not concern themselves with investigating sexual crimes in 2007 and did not take any initiative in this regard either. At that time, only very few studies into sexual violence committed under the Khmer Rouge had achieved any degree of recognition. Not until 2008 were the first victims allowed to go before the courts as joint plaintiffs. Some of them filed petitions soon thereafter in which they detailed the circumstances behind forced marriages and their course of events.

But what lies behind these forced marriages? Every historian and researcher (primarily men) that has dealt with the time the Khmer Rouge ruled the country has made reference to this demographic measure. Its purpose was to have the populace marry by class and to control reproduction. The aim was to triple the size of the population within 15-20 years and to create new revolutionary people who were no longer attached to the old political, cultural and social structures.

The accounts given by victims made it clear that these forced marriages had been systematically organised throughout the country. Men and women were assembled in groups of 2 - 300 couples and, after a brief political speech, declared husband and wife. They were instructed to spend the night together. Many of the men were given direct orders to have sexual intercourse with their new wives. A large number of them were controlled by Khmer Rouge soldiers who were posted under the new couples' houses at night. If the marriage was not consummated, re-education measures were conducted, some were thrown in jail and some even executed. The marriages were performed in the name of “Angkar” (Khmer: organisation). The instigators were Pol Pot and the Standing Committee of Cambodia's Communist Party. Angkar purported to replace the parents and authorised itself to organise marriages.[1]

Even though this is a widely known fact, the investigating authorities at the ECCC have turned a blind eye to forced marriages for a long time or simply “overlooked” them and have not assessed or acknowledged/recognised them as mass and systematic crimes against the civilian population.

It was only through the initiative of joint plaintiffs that forced marriages were finally included in the investigations and ultimately added as an element of the charges filed with the ECCC in Case 002. However, the current legal classification for forced marriage and sexual violence as “other inhumane acts” under crimes against humanity is still inadequate and does not take every aspect into account, such as the resulting pregnancies and sexual slavery.

Nevertheless, this can be viewed as a success – until September 2011 at least. On 22 September 2011, the Trial Chamber severed Case 002 and is only trying the first two forced displacements. This relates firstly to the relocation of the entire population of Phnom Penh to rural areas on 17 April 1975 and the second phase (end of 1975 to 1976/early1977) relating to the forced displacement of the population from the south/south-west to the north/north-west.

Although the victims of forced marriage represent the second-largest group of joint plaintiffs, the Chamber has made it clear that this crime does not take priority. The “forced marriage” charge has been put on ice for an indefinite time and will most likely never see the inside of a courtroom given the advanced years of the accused.

Marriages which come about through force continue to be regarded as second-degree crimes, and even more so if the couple are still together today. There is a lack of understanding of this constellation, even among international employees at the court, and it illustrates ignorance of the context and background behind this crime which, until today, has had devastating consequences for Cambodian society. For now, the ECCC has missed an opportunity to afford this crime the importance and priority it merits and therefore to set an example.

Rapes occurring outside the forced marriage context have not been systematically investigated at all. Whilst a handful of rapes which came to light coincidentally in the course of the investigations have been added to the charges, the accused are not being held accountable for these rapes. In the estimation of the investigating judges, rapes were not official Khmer Rouge policy. They also stated that sexual crimes were prosecuted when they became known. The investigating judges did not or did not want to see that rapes, which were carried out as part of the policy against the enemy, were a regular component of the treatment of those who had already been ‘dehumanised’: once someone was declared the enemy, any act could be carried out on that person: abuse, torture, killing – and also rape.

This raises the question: why has sexual violence not been systematically investigated?

A look at the latest findings of a grass-roots study (2012) on gender sensitivity and gender competence has revealed the following among other things: only 29 percent of international UN employees are female, and only 25 percent of the leading positions are held by women; among all national and international employees, their quota is just 17 percent. Hardly any of those surveyed had a sound knowledge of gender equality and the significance of the relevant UN resolution pertaining to violence against women and girls in armed conflict for the work at the ECCC. There is a lack of institutionalised training; skills relating to gender roles and gender awareness are virtually non-existent. The majority of respondents stated that, by being bound to impartiality and non-discrimination, any gender-specific orientation was out of the question.

At the time the investigations were launched in 2006, the share of qualified women was even lower. One of the main causes of the lack of and/or inadequate investigations into sexual violence before the ECCC can be found, above all, in the fact that these investigations were not part of the strategy pursued by the attorney general's office. This is, above all, due to a lack of knowledge and awareness of sexual violence in armed conflict and the background to and makeup of sexual crimes as well as a lack of political will to give priority to launching investigations into sexual violence.
Coupled with this, the selection of the people who should work in the courts and the lack of institutionalised gender competence played a significant role. Unchallenged stereotypes, such as the alleged difficulty in investigating sexual crimes, the feigned protection of victims and their sheltering from secondary traumatisation on the grounds that they could suffer during hearings are of further importance and are intended to justify to the outside world the lack of investigations.

No attempts were undertaken at the ECCC to employ female interpreters for Khmer and female investigators with gender competence. Other demands made by the joint plaintiffs, such as their call for a change in the internal rules relating to adequate conditions for the treatment of sexual crimes, have been ignored as well.

How do things look in terms of the International Criminal Court (ICC)? Is the ICC a model of how sexual crimes should be investigated and treated?

Before looking into this, here are a few facts and figures from 2011: only 35 percent of the leading positions at the attorney general's office (P4 and P5) are held by women; 80 percent of all posts in the field offices are occupied by men; 36 percent of the victims who have been assisted by the Office of the Public Counsel for Victims are female; outreach activities reach 26 percent of women; the investigators’ list of experts comprises 27 men and one woman; the special advisor to the attorney general for gender issues only works pro bono; sexual violence is alleged in 7 out of 13 cases; 13 out of 27 people charged with a crime are accused of sexual crimes. [2]
The ICC Statute has added a very broad list of sexual crimes both as war crimes and crimes against humanity. For the first time ever, gender is mentioned as an element of persecution.

In law of criminal procedure, rules of evidence now exist for sexual violence cases. Protecting female (testifiying) victims of sexual crimes takes precedence.

But how do things look in reality?

The first trial before the ICC (in the matter of Lubanga) only focuses on the deployment of child soldiers (below the age of 15) and ignores the recruitment of girls and their use and exploitation as sexual slaves. The victims’ legal representatives failed in their attempt to have this aspect included among the allegations. Consequently, testimonies given by witnesses who had suffered sexual exploitation could not be included in the conviction. The attorney general’s office failed to add this aspect to its strategy and did not even change the charges with the benefit of hindsight.

But even in other cases before the ICC, where sexual crimes are the subject of investigations, only a relatively small number reach the main proceedings in proportion to other crimes.

There are numerous reasons for this [3]:

  • A lack of sufficient evidence to prove the allegations of sexual violence; (Democratic Republic of the Congo in: Katanga & Ngudjolo) or not for all regions where these violent crimes are alleged by the attorney general to have taken place; (Kenya in: Muthaura et. al;)
  • Exclusive reference to UN or NGO reports instead of first-hand witness testimony; (Central African Republic in: Bemba and Darfur in: Abu Garda)
  • Cumulative allegations are made, but the different elements of the crimes are not proven; (Central African Republic in: Bemba) – Certain facts are not recognised as sexual crimes (forced nudity) (Central African Republic in: Bemba)
  • Allegations are only characterised by the attorney general as crimes against humanity but not as war crimes (this was corrected by the Pre-Trial Chamber); (Côte d'Ivoire in: Gbagbo)
  • Facts are subjected to incorrect legal characterisation; (Kenya in: Muthaura et. al)

In summary, it must be said that a third of all sexual crimes has not been confirmed by the Pre-Trial Chamber (Stand 2011).

The ICC can therefore not (yet) be viewed as a model court for the prosecution of sexual violence. Especially in regard to the type of allegations, it can be seen that these crimes are disproportionately frequently inadequately investigated.

To really ensure that they are adequately considered and prosecuted by the ICC, the following is necessary:

  • Develop a detailed gender strategy;
  • Gender competence and regular capacity building of employees;
  • Full-time employed female gender advisor;
  • Careful investigative work.

So there is still quite a way to go before the investigation of international sexual crimes can be deemed to be successful and impunity in this area is counteracted.

Many thanks for your attention!

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Footnotes:
[1] A detailed description of forced marriages can be found in the following article: Beini Ye (2011): Forced Marriages as Mirrors of Cambodian Conflict Transformation, Peace Review, 23:4, 469-475.
[2] Summarised based on the invaluable list compiled by the Women's Initiatives for Gender Justice, Gender Report Card on the International Criminal Court 2011 at http://www.iccwomen.org/publications/index.php
All in all, it can be said that there is no shortage of adequate regulations in order to investigate and prosecute sexual crimes.
[3] Summarised based on the invaluable analysis provided by the Women's Initiatives for Gender Justice, Gender Report Card on the International Criminal Court 2011 at http://www.iccwomen.org/publications/index.php%20