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Working Paper Working Paper Guarantees of Non-Recurrence of Sexual and Gender-Based Violence against Women after the Khmer Rouge Cambodia Working Paper Series Sotheary YOU Schweizerische Friedensstiftung Fondation suisse pour la paix Fondazione svizzera per la pace Swiss Peace Foundation 6 / 2019 Abstract Four decades after the collapse of the Khmer Rouge re- gime, Cambodian women continue to suffer from dis- criminatory social, cultural and economic norms and to experience gender injustice in social and political spheres. Against this background, this paper asks whether and to what extent transitional justice has contributed to providing guarantees of non-recurrence of sexual and gender-based violence (SGBV) against women in Cambodia. This paper examines how the transitional justice pro- cess addressed SGBV committed under the Khmer Rouge regime. It shows that transitional justice has not adequately recognized SGBV against women under the Khmer Rouge, that there has been lack of representa- tion of women in the process and that an unfair redistri- bution of resources after the Khmer Rouge contributed to further discrimination. Drawing from the concept of guarantees of non-recur- rence and feminist scholarship on gender justice, this paper highlights how a lack of gender-transformative policy and the government’s lack of capacity to comply with international legal standards has shaped women’s experiences after the Khmer Rouge. It argues that, in order to guarantee the non-repetition of SGBV against women, transitional justice initiatives should aim to address social and cultural injustice effectively; to sub- vert patriarchal and oppressive norms; and to promote women’s participation in social, economic and political development in Cambodia. It concludes with policy rec- ommendations. Keywords: Sexual and Gender-Based Violence, Khmer Rouge, Guarantee of Non-Recurrence, Transformative Reparation, Transitional Justice, Cambodia. 3 Imprint Table of Contents Abstract 03 Foreword to the Working Paper Series on Cambodia 07 1 Introduction 13 Acknowledgments The editors of this Working Paper series on Cambodia, Julie Bernath and Ratana Ly, would like to thank the Embassy of Switzerland in Thailand for their generous 2 Addressing SGBV against Women in support to this publication project. They are also very grateful to Phalthy Hap, Christoph Sperfeldt, Rachel Transitional Justice 15 Killean, Natalia Szablewska and Kosal Path for provid- ing important advice and support to authors, and to Al- ice Williams for proofreading this collection of papers. 3 The ECCC and SGBV against Women under the At the Center for the Study of Humanitarian Law, they warmly thank Champa Sy for her assistance. At swis- Khmer Rouge 18 speace, they thank the team of the Working Paper se- ries for their support of this project: Joschka Philipps, Elizabeth Mesok and Amélie Lustenberger. 4 Beyond the ECCC: Addressing SGBV in Cambodia 22 Working Papers In its working paper series, swisspeace publishes original contributions by staff members and inter- national experts, covering current issues in peace 5 Conclusion and Policy Recommendations 26 research and peacebuilding. Please refer to our publication list at the end of this paper or on www.swisspeace.ch/publications. Bibliography of the Foreword 28 The views expressed in this Working Paper are those of the author and do not necessarily reflect the swisspeace standpoint. Bibliography 30 Series Editor Joschka Philipps, Elisabeth Mesok About the Authors 34 Publisher swisspeace is a practice-oriented peace research institute. It analyses the causes of violent conflicts About swisspeace and the CSHL 35 and develops strategies for their peaceful transforma- tion. swisspeace aims to contribute to the improve- ment of conflict prevention and conflict transformation. swisspeace Publications 36 Guideline for authors of swisspeace Working Papers can be found at swisspeace.ch/publications.html swisspeace Steinengraben 22 4051 Basel Sonnenbergstrasse 17 3013 Bern Switzerland www.swisspeace.ch [email protected] ISBN 978-3-906841-17-5 © 2019 swisspeace List of Acronyms Foreword to the Working Paper Series on Cambodia Julie Bernath and Ratana Ly, editors of the Cambodia series CEDAW The Convention on the Elimination of all Forms of The year 2019 was an important milestone for transitional justice in Cambo- Discrimination Against Women dia. It marks both 40 years after the end of the Khmer Rouge regime in early 1979, and 15 years after the establishment in 2004 of the Extraordinary Cham- CEDAW Committee Committee on the Elimination of Discrimination bers in the Courts of Cambodia (ECCC), also known as the Khmer Rouge Against Women tribunal. CRPD Convention on the Rights of Persons with Disabilities On this occasion, this Working Paper series brings together a collection of papers by Cambodian early career researchers to reflect upon the transi- ECCC Extraordinary Chambers in the Courts of Cambodia tional justice process in Cambodia. It is the result of a one-year publication GNR Guarantees of Non-Recurrence project of the Center for the Study of Humanitarian Law at the Royal University of Law and Economics in Phnom Penh and swisspeace, supported by the Em- HDI Human Development Index bassy of Switzerland in Thailand. This series aims to give more visibility to ICCPR International Covenant on Civil and Political Rights Cambodian researchers in academic writings on transitional justice. As such, it is an attempt at working against the problematic politics of knowledge pro- ICERD International Convention of Discrimination of All duction that exist in the field of transitional justice. Although transitional jus- Forms of Racial Discrimination tice scholarship has increasingly questioned the marginalization of local ICESCR International Covenant on Economics, Social and voices and perspectives when it comes to policy-making and practices of Culture Rights transitional justice, researchers from contexts in the Global South in which transitional justice processes take place still have less visibility in, and ac- ICPPED International Convention for the Protection of All cess to, academic debates on transitional justice in comparison to their peers Persons from Enforced Disappearance from the Global North. KR Khmer Rouge This set of papers highlights the important achievements made in pur- MoWA Ministry of Women’s Affairs suing justice, accountability and reconciliation in Cambodia. It also illustrates MoEYS Ministry of Education, Youth, and Sport the vast experiences that Cambodian practitioners and researchers alike have gained in the transitional justice field in the last decade and more. At the same OECD Organization for Economic Cooperation and time, the papers reflect the ways in which transitional justice inherently con- Development stitutes a long-term process. Fifteen years after the establishment of the SGBV Sexual and Gender-Based Violence Khmer Rouge tribunal, the authors discuss the many challenges that remain in order for the transitional justice process to truly unfold its emancipatory and UN United Nations transformative aspirations. UNCAT Convention Against Torture and Other Cruel, Inhu man or Degrading Treatment or Punishment Taken together, this collection of papers speaks to key issues that, be- yond the case study of Cambodia, have become central in transitional justice UNCRC Convention on the Rights of the Child scholarship ever since it has taken a critical turn. The papers identify the dif- UNDP United Nations Development Programme ficulties for transitional justice processes to contribute to long-term socio- political change, at the structural level, in order to guarantee the non-recur- UNSCR United Nations Security Council Resolution rence of human rights violations. They highlight the need to attend to the UN Women The United Nations Entity for Gender Equality and specific socio-political contexts in which transitional justice processes un- the Empowerment of Women fold. The papers also point to the selectivity of formal, state-sanctioned tran- sitional justice processes, which contrast with continuities of violence and discrimination across time that parts of the population may experience, for instance women. They shed light on the diversity of actors involved in transi- tional justice processes, which cannot neatly be captured by a binary distinc- tion of international versus local, and which include not only state actors or legal professionals, but also civil society actors or donors. 6 7 Foreword Foreword Transitional Justice in Cambodia: Fifteen Years After the Establishment of the execution of soldiers of the regime preceding the Khmer Rouge. This Case was ECCC completed in November 2016, however two of the accused died prior to its completion: the former Minister of Foreign Affairs, Ieng Sary, and the former The Khmer Rouge regime was arguably the most totalitarian of the 20th cen- Minister of Social Affairs, Ieng Thirith. Case 002/02 examines far-ranging tury (Bruneteau 1999). Between April 17, 1975 and January 6, 1979, the Com- charges related to key policies of the Khmer Rouge, including forced labour, munist Party of Kampuchea, known as the Khmer Rouge, held power over the security centres, forced marriages and treatment of minorities. The Trial national territory. The Khmer Rouge aimed at creating a new people and a Chamber judgment handed in November 2018 is currently under appeal. One communist agrarian utopia within the timeframe of a single generation, in a of the two remaining accused, Nuon Chea, died
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