Friday, February 20, 2009

Expanding Dialogue at the ECCC

The media is abuzz this week with news of the start of the trial of former Khmer Rouge leader Duch, which is the first trial to be held by the Extraordinary Chambers in the Courts of Cambodia. This is a momentous occasion, to be sure, and one to be celebrated as an opportunity for accountability and furtherance of the rule of law in Cambodia. Amidst the excitement, however, a smaller piece of news caught my eye: the Civil Parties' request that the Co-Prosecutors undertake further preliminary investigations into Duch's role in mandating forced marriages under the Khmer Rouge regime. (I received an electronic copy of the filing, but it's not yet been posted on the ECCC's website.) This seems to me potentially a great leap forward in expanding the dialogue about the shape of accountability in internationalized criminal courts in at least two directions.
First, the obvious -- the involvement of the Civil Parties in shaping the Co-Prosecutors' investigation, should it come to pass, would be an exciting turn of events. Rather than maintaining the Office of the Co-Prosecutors as the sole locus for selecting the direction of investigations, the voices of victims may actually have a role in determining the charges brought against defendants accused of mass atrocities. While a cynic might argue that it's the voices of the victims' lawyers, not the victims themselves, that are being heard, this potential inclusion of bottom-up input into the Khmer Rouge trials seems a step in the right direction.
Second, the transnational -- the Civil Parties grounded their request in a recent decision by the Appeals Chamber of the Special Court of Sierra Leone holding for the first time that forced marriage is a crime against humanity. While this precedent is obviously not binding on the ECCC, the Civil Parties' efforts to transport this new norm into the court's jurisprudence is an exciting horizontal development for internationalized criminal courts. As more courts accept new constructions of the definition of international crimes such as crimes against humanity from their peers, these new definitions will become an uncontroversial part of international criminal jurisprudence and even customary international law.
Third, the local -- the Civil Parties' submission is careful to distinguish between traditional Cambodian arranged marriages and forced marriage. Whatever one's view of arranged marriage, sensitivity to cultures that have traditionally embraced such unions seems appropriate, and may not have been present if the request for further investigations had been framed by individuals with less exposure to Cambodian society.
It is particularly striking to note that the vertical and horizontal expansion of dialogue in the ECCC could result in the cementing of a crime that's particularly gender-related. Though in Cambodia an estimated 400,000 men and women were victims of forced marriage, in most other instances (Sierra Leone, Rwanda, etc.), this is a crime perpetrated only against women. Adding it to the Co-Prosecutor's investigation would be a vital step in addressing the severe trauma inflicted by forced marriage and its resultant sexual crimes. Adding women's voices, and other voices that have too often been excluded, to international criminal prosecutions may just move the jurisprudence, from the bottom up, in a truly international direction.

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