Prosecuting Sexual Violence at the Cambodian War Crimes Tribunal: Challenges, Limitations, and Implications
The trial of Khieu Samphan and Nuon Chea in Case 002 at the Extraordinary Chambers in the Courts of Cambodia (ECCC) is widely seen as a landmark case in international criminal law. While the defendants were convicted of crimes against humanity in the first half of the case, Case 002/01, they were cleared of charges for sexual crimes by the trial chambers, disappointing observers and advocates who considered them to have facilitated mass sexual violence between 1976 and 1979 in Democratic Kampuchea (DK), as Cambodia was known at the time. Case 002/01 raises important questions over the prosecution of sexual crimes as acts of state, especially when that state's official policy is to prevent and punish sexual violence. The conclusion of this article discusses the court's ruling that DK policies and laws against sexual violence indicate that the defendants intended to prevent sexual violence. The ruling is deeply flawed, especially when we consider that murder was also outlawed under the DK criminal code. Yet, these laws against murder were not considered a barrier to charging Khmer Rouge leaders with murder in the context of war crimes, crimes against humanity, and genocide. This, in turn, raises a question as to what exactly constitutes state policy in the context of mass violence committed by state actors: the policy of governments, laws, and decrees of the state or the actions of the state and government?