When she was six months pregnant, Srey Neang* pressed the palm of her hand to her navel and felt her unborn child stop moving. It was 1976 and she had been struck down with malaria. Three months later, she gave birth, but her daughter had already died.

Forced to marry in 1975 – at the dawn of the Khmer Rouge’s brutal regime – Neang is a victim of a crime that may never be investigated or tried before the Khmer Rouge tribunal: forced pregnancy.

Although the tribunal is currently hearing victim and expert-witness testimony on the crime of forced marriage – which is in itself a milestone, say legal advocates – it decided earlier this year that it would not investigate forced pregnancy as a distinct crime.

Those representing the victims were disappointed, seeing it as a missed opportunity to probe the often inextricably linked crime of forced pregnancy. That decision also means forced pregnancy is a crime no international criminal tribunal has yet prosecuted.

‘Serve Angkar’

Touching a small bump on her left hand where a wedding ring might rest, Neang, now 61, tells how in 1975 she was ordered to marry a man who had been maimed in battle. Unlike many other victims of forced marriage, however, she dared to protest.

“Whatever you do and wherever you take me to, I cannot accept it,” she said at the time. Her crying and begging persuaded her commune chief, who recognised the hard work she had done in clearing the forest. But he arranged another wedding, this time to a military youth.

“I did not ask the second time,” she says. “The Khmer Rouge threatened my parents and I feared for their safety. They threatened to beat me and put me in prison.”

Though Neang had never talked with the man, and had seen his face only a few days prior, they were married in a mass ceremony of some 60 couples from across the district.

It was sunset.

Neang carries a vivid memory from the ceremony which, unlike traditional Cambodian weddings, lacked feasting and colour: it was the commitment she was ordered to make to Angkar, the Khmer Rouge’s all-seeing, all-powerful leadership: “You need to have babies to serve Angkar.”

For lawyers representing civil parties – victims of the crimes being prosecuted at the Khmer Rouge tribunal – this single sentence is key. It echoes other victims’ experiences and fits a broader narrative that the objective of the leadership, as gleaned from Revolutionary Flag (the movement’s magazine) and speeches by Pol Pot and foreign minister Ieng Sary, was to increase the population.

Prosecutors and lawyers for civil parties say forced marriages were designed in part to ensure that the population would more than double to 20 million people within a decade, adding a new generation of revolutionary cadres untainted by the decadence of previous regimes.

For their part, defence lawyers for the two surviving leaders, Nuon Chea and Khieu Samphan, say the way the regime sought to increase the population was not through forced marriage, but by improving living conditions.

Chea Dieb, Neang’s neighbour, testifies at the tribunal about forced marriage. ECCC

A distinct crime

While forced pregnancy is a relatively new crime, it has a long history of being used as a tool of warfare, human rights lawyer María Lobato notes in her recent report Forced Pregnancy during the Khmer Rouge Regime.

In that publication, Lobato contends that forced pregnancy should be considered a separate but related crime to forced marriage in the tribunal proceedings. A stumbling block, however, is that forced pregnancy emerged as a distinct international crime only in 1998 in the Rome Statute, the treaty that established the International Criminal Court.

Despite this, civil party lawyer Linda Behnke, who is funded by the German non-profit GIZ, lodged a request in March for the crime to be investigated as part of the tribunal’s Case 004 against two further accused: Ao An and Yim Tith.

Behnke says although forced pregnancy was not a listed crime in 1975, and while she agrees the law cannot be applied retroactively, there is scope to consider forced pregnancy as “another inhumane act” among the atrocities committed by the regime, and to prosecute it.

Silke Studzinsky, a former civil party lawyer who played a crucial role in bringing sexual and gender-based violence such as forced marriage and rape to the tribunal’s attention, agrees that forced pregnancy should be prosecuted as a crime against humanity, and to that end, she requested investigations into the matter as early as 2008 when she was at the tribunal.

“Forced pregnancy is distinct from the elements of the crimes of forced marriage and rape,” she says. “The harm is also distinct. It could be cumulatively tried. There are no additional facts to be added.”

Behnke says the scenario in which forcibly married couples were pressured through spying or threats to consummate amounted to “forced impregnation”. The Khmer Rouge, she says, broke up families and controlled reproduction through its own state-mandated unions.

“Forced marriage is a crime against both men and women, whereas forced pregnancy is only against women,” Behnke says. “We wanted to make clear that we do not see the child as the harm, because this is a very conflicted situation. Nobody wanted to be pregnant – not because they didn’t want children, but because of the conditions.”

The combination of factors – forced labour, scant food, a lack of medical care and no way to prevent falling pregnant – meant women endured an “unbearable” nine months.

“Even if you had better living conditions, being pregnant against your will . . . is one of the worst violations of your human rights that can happen. It basically objectifies the woman, it makes the woman just a reproductive machine,” says Behnke. “It’s an inhumane act against these women, and it’s comparable in gravity to other crimes against humanity.”

Srey Neang*, who was ordered “to have babies to serve Angkar”. The image behind her shows one daughter’s wedding. Linda Behnke

Rejected

Despite the efforts of Behnke, Studzinsky, the prosecution and others to get the tribunal to investigate the issue of forced pregnancy, its Office of Co-Investigating Judges (OCIJ) declined to do so.

In a lengthy decision issued in June, the OCIJ cited issues of legality concerning reproductive rights between 1975 and 1979, a lack of evidence and poor timing of the requests.

“There is at present, after years of investigation into forced marriage, no evidence that would support a policy of forced impregnation or forced pregnancy,” the OCIJ wrote, although explanations as to that lack of evidence were heavily redacted.

“Both requests were filed very late in the day without good cause having been shown; extending the investigation now would put an undue burden on the defence and cause an unacceptable delay in the investigations.”

For Behnke, the blow was disappointing. Her team of lawyers elected not to appeal the decision.

For researcher Theresa de Langis, who created the Cambodian Women’s Oral History Project, being told “it’s too late” is “not good enough”.

“It’s really disheartening to have the investigators turn around and say ‘Well, it’s too late’. I understand if it doesn’t fulfil the law. But to say that it’s too late or that the expeditiousness of the court has to pre-empt expanding justice for women . . . I think that’s a missed opportunity,” she says.

De Langis, a researcher on women, peace and security in conflict settings, notes this approach is not unique to the Khmer Rouge tribunal; it is an embedded global problem, she says, in which the lived experiences of women go unnoticed by international courts until such time as there is a wave of advocacy for those stories to be heard.

“It’s part and parcel of this blind eye of the law when it comes to the experiences of women,” she says. “The law was created by men to protect men, and women were their property. And since then, we’ve had to make one corrective after another, to expand the umbrella for justice. So if you see women as property, then you wouldn’t really see forced pregnancy as a problem.”

In the courtroom, the concept of forced pregnancy could become murky, with lines of consent and coercion painstakingly examined and victims probed on whether threats were real or imagined. That, after all, is what typically happens in cases of rape or sexual assault.

But for de Langis, there was “no such thing as consent” in the context of Khmer Rouge forced marriages.“The environment was so coercive that consent becomes very problematic,” she says.

By way of example, she cites a narrator from her project, who, realising there would be severe consequences for her and her husband if they did not have sex, acquiesced with: “Okay, you can rape me.”

“For her, in her mind, it was still such a violation, but in the context, she had no choice,” de Langis says.

Chairman Mao (left) meets the Khmer Rouge’s Pol Pot (centre) and Ieng Sary. AFP

No Choice

That situation is all too familiar to Neang. Even though she refused intercourse on the first and second nights after the mass wedding, her husband was called and instructed on how to have sex. On the third night, they relented.

“Because I was afraid, and I needed to do it, I adjusted. I didn’t resist, just laid still,” she says. “I had no feeling, I don’t know how to express how it felt because it was scary. I was not excited or happy; I can’t express it.”

Civil party lawyer Behnke says pregnancies were forced due to the extreme climate of fear; even though some couples got away with refusal to consummate, others were expressly threatened or punished.

“People thought they had no choice,” she says. “You don’t have to hold a gun against their head; that’s not necessary. If somebody thinks they have no other way of going than this way, that is, for me, enough of a threat.”

Kasumi Nakagawa, a researcher who pulled together scores of stories of women in her book Motherhood at War: Pregnancy during the Khmer Rouge Regime, says of all the women she interviewed, not one wanted to be pregnant.

Yet she warns against “sensationalising” forced pregnancy, and says the disregard for human life during the regime was a counterpoint to arguments of increasing the population.

“They didn’t care about the child’s welfare or the mother’s. If the Khmer Rouge wanted women to be pregnant for the purpose of increasing the population, there should be a sign that they took care of them [in this policy], but I don’t see any sign of that,” she says.

And, she adds, while couples were forced to have sex – a form of rape against the man as well as the woman – she doesn’t see that this is necessarily tantamount to forced pregnancy.

“Women told [me] they didn’t want to get pregnant because when they thought about the future of the child that might be born, [they feared] the child would suffer a lot, the child may not survive. So their life is completely filled with this terror,” says Nakagawa, adding that all of the women (bar one) with whom she spoke about this delicate topic were happy when their child was born.

Researcher Kasumi Nakagawa addresses the Khmer Rouge tribunal this month. ECCC

However, as both Behnke and de Langis stress, that in no way lessens the harm they suffered. For her part, Neang’s experience was of joy mingled with pity. “Even though we were living in hard conditions, the baby was ours, so we were very sad about losing our child,” she says of her stillborn daughter, who was whisked away without ceremony and buried behind her house.

“The elders didn’t let me know because they were afraid I would be in shock,” Neang says. “Later on, my husband took me to the spot and told me: ‘This is where our daughter is buried’.”

Neang did not want to become pregnant again but there was no way to prevent it. Once again she endured the pains of pregnancy as she worked; she wasn’t able to stomach even small portions of rice and instead ate fruit and salt.

In 1977, she gave birth to a son. He survived. “I felt pity for my son, because I could not take care of him,” she says of the atrocious conditions under the Khmer Rouge regime.

Neang regards her first pregnancy as a forced one, compelled by Angkar. The second, she says, was forced by her husband. The couple are still married. Although they have had nine children, including her stillborn daughter, they never fell in love.

“Until now, the feeling is just the same; there is no romantic feeling,” she says through tears. “My husband makes me hurt emotionally; he doesn’t seem to care about the family.”

Five of their children have married; two of her daughters enjoyed the traditional Khmer wedding that she was denied.

The conflicted feelings of love for her children and regret for her lot in life make it a difficult story to share with her loved ones, even four decades on.

“My son told his other siblings that he was the eldest, and then I told him that there was also your older sister who died of malaria,” Neang says. “I did not tell the full story of what my married life is like, because I don’t want him to get hurt.”

*A pseudonym has been used due to her role in ongoing investigations before the Khmer Rouge tribunal.