The Beleaguered Cambodians

More than thirty years after an estimated two million people died at the hands of Pol Pot’s regime of Democratic Kampuchea, trials of senior Khmer Rouge leaders and those most responsible for the deaths are at last taking place in Cambodia. On July 26, the first to be tried, Kaing Guek Eav, commonly known as Duch, was sentenced to thirty-five years in prison for war crimes and crimes against humanity—a sentence that he and the prosecution have since appealed. Duch directed Security Prison 21, also known as Tuol Sleng, where at least 14,000 prisoners, mostly Khmer Rouge cadres and officials, were tortured and killed.¹

Even more important, the next trial, which will probably begin in 2011, involves the four most senior Khmer leaders still alive: Nuon Chea, known as Brother Number Two; Ieng Sary, who was foreign minister; his wife, Ieng Thirith, minister for social affairs; and Khieu Samphan, who was president of Democratic Kampuchea. Now in their late seventies and early eighties, all four were arrested in 2007 and on September 16 were formally charged with war crimes, crimes against humanity, genocide, and related crimes under Cambodian laws.

While the trials have refocused international attention on Cambodia’s dark past, little attention has been given to how the much-watched proceedings relate to the troubled politics of Cambodia today. Will they lead to a new era of justice and accountability for a beleaguered people or end in another betrayal?

Cambodia is ruled by longtime Prime Minister Hun Sen and his Cambodian People’s Party. They govern with absolute power and control all institutions that could challenge their authority. Opposition political parties exist, giving the illusion of multiparty democracy, but elections have not been fair and the opposition no longer poses any threat to Hun Sen. The monarchy has survived but has little influence. The freedoms of expression, association, and assembly are severely curtailed. Human rights organizations are intimidated, and a draft law aims to bring them under the regime’s authority. The judiciary is controlled by the executive, and the flawed laws that exist are selectively enforced. Hundreds of murders and violent attacks against politicians, journalists, labor leaders, and others critical of Hun Sen and his party remain unsolved.

The regime’s violence against political opponents has been flagrant. In March 1997 Hun Sen’s bodyguards were clearly implicated in a grenade attack on a peaceful rally in Cambodia’s capital, Phnom Penh, led by opposition leader Sam Rainsy.² Sixteen people were killed and over 140 injured, including a US citizen. No serious inquiry was ever completed. Royalist opponents of Hun Sen were murdered when he deposed Prime Minister Norodom Ranariddh in a coup on July 5–6, 1997. More people were killed during the July 1998 elections, which Hun Sen won. In January 2004, the popular labor leader Chea Vichea, an outspoken critic of the government, was shot, one of several contract killings in Phnom Penh before and after the July 2003 elections, carried out in broad daylight by helmeted gunmen on motorbikes.

In October 2005, in an attempt to encourage prosecution of these murders and other serious crimes, Peter Leuprecht, at the time the United Nations secretary-general’s special representative for human rights in Cambodia, issued a report tracing a continuing and accepted practice of impunity since the start of the 1990s. However, open discussion of the report and its recommendations was not possible in Cambodia and it was ignored.

By confronting the crimes committed between 1975 and 1979, the Khmer Rouge trials offer hope of breaking the pattern of impunity that has characterized Cambodia’s recent history. But they could also allow Cambodia’s leaders to claim a commitment to justice and the rule of law while avoiding accountability for their own crimes and repressive practices.

Cambodia was once one of Asia’s greatest empires. The only existing account of life in what we now call Angkor was written by Zhou Daguan, a Chinese envoy, after he spent almost a year there at the end of the thirteenth century. What he saw and described was an extraordinary civilization still at its height, the outcome of five centuries of political and cultural continuity. His stories are taught in schools and scholars draw on them to gain a picture of life and society in Angkor.³

Angkor’s ancient glory is reassuring to a people whose history after gaining independence from France in 1953 has been so perilous. Drawn into the cold war and the war against Vietnam, they endured the Nixon administration’s covert and illegal bombing in the late 1960s in pursuit of the Vietcong; the overthrow of their head of state and former king, Prince Norodom Sihanouk, in 1970; and years of more bombing and civil war that culminated in the Khmer Rouge taking absolute control when it captured Phnom Penh in April 1975 and founded the state of Democratic Kampuchea. It ruled until it was ousted in January 1979 by Vietnamese troops who installed the People’s Republic of Kampuchea with Soviet backing.

Hun Sen, formerly a Khmer Rouge regimental commander who fled to Vietnam in 1978, emerged as a principal leader of the new government, serving first as foreign minister and then as prime minister. The Khmer Rouge, meanwhile, had retreated to camps on the Thai border, allied itself with other opposition forces, and continued to claim power. Since the US and other nations did not want to recognize a Cambodian government dominated by Vietnam, these disparate forces were supported and armed by China, the US, and Thailand, among others, and recognized by the United Nations as the legitimate government of Cambodia.

The end of the cold war, and exhaustion among Cambodians after so many years of war, made possible an internationally brokered peace agreement in 1991—the Agreements on a Comprehensive Political Settlement of the Cambodia Conflict⁴—and the deployment a year later of the United Nations Transitional Authority for Cambodia (UNTAC), the largest peacekeeping operation the UN had ever mounted. UNTAC was charged with overseeing an end to armed conflict, disarming the armies of the fighting factions, repatriating refugees, and creating a neutral political environment for fair elections, which it was to organize.

The royalist party won the May 1993 elections.⁵ When Hun Sen threatened armed secession, a power-sharing arrangement was brokered to meet his demands, resulting in an unwieldy coalition government that he came to dominate. Cambodia became the Royal Kingdom of Cambodia under a new constitution, and Norodom Sihanouk returned to the throne. UNTAC left in September 1993, its departure dictated by the UN Security Council, not by conditions in Cambodia where violence and fighting against the Khmer Rouge, which had boycotted the elections, continued. For the outside world, the main objective had been achieved, namely to enable the former cold war powers to disengage from a country in which they no longer had any interest.

The stage was set for a series of deceptions and disappointments. In 1993, the UN Commission on Human Rights asked the secretary-general to appoint an independent expert to serve as his special representative for human rights in Cambodia and to establish an office in the country. The UN office and the special representative were jointly charged with assistance to the government, monitoring the human rights situation, and reporting annually to the commission and UN General Assembly. This mandate, one of the strongest ever given to a UN human rights operation, deserved support, but many governments regarded it as too intrusive. Wary of setting precedents that might be followed elsewhere, they gave little help, making an already difficult task almost impossible.

For a decade and a half, four successive special representatives tried to get the Cambodian government to set up the laws, institutions, policies, and practices necessary to uphold and protect elementary rights. From the outset, Hun Sen, who was steadily consolidating his power over the country, swung between reluctant cooperation with the representatives and vindictive personal attacks on them.⁶ He spoke of Yash Ghai, the last representative—a distinguished academic and constitutional lawyer from Kenya—with utter contempt and refused to meet him. In his reports, Ghai regretted that deliberate and systemic violations of human rights had become central to the government’s hold on power. Hun Sen’s ruling party still dominated Cambodian politics; the constitution and legal and judicial system were regularly subverted; corruption was entrenched; and government impunity and threats against those who criticized the status quo continued.

Hun Sen demanded that Ghai be dismissed and that the position of special representative of the secretary-general be abolished. In the end he got his way. Yash Ghai resigned in frustration in September 2008, and the UN Human Rights Council, which had replaced the Commission on Human Rights in 2006, eliminated the position. The council established instead its own “special rapporteur,” thereby bringing this office under its direct control. The human rights office has also not been exempt from criticism, and Hun Sen has asked that it be closed down on several occasions, first in 1995 and most recently when Secretary-General Ban Ki-Moon visited Cambodia in October.

Despite the country’s poor record on human rights, Hun Sen and his party boast that Cambodia has the most liberal and open economy in Southeast Asia. Economic growth has indeed been rapid since the mid-1990s, averaging 7 percent a year. But the new wealth is concentrated in Phnom Penh, a city with its back turned on rural Cambodia, where over 80 percent of Cambodia’s 14.6 million people live. One in three Cambodians lives below the poverty line. Many more live just slightly above it. Most subsist on farming tiny plots of land and by foraging.

About nine million hectares, half of Cambodia’s surface area, are estimated to be reasonably productive. Under the Khmer Rouge, all land was expropriated, entire populations uprooted, and land records destroyed. During the Vietnamese occupation that followed, land remained largely collectivized. The Land Law of 2001 could have helped to bring about equitable land distribution and security of tenure; instead, under a compliant judiciary, well-connected investors and companies have grabbed land at an alarming rate, rapidly destroying the livelihood of the rural poor. Those living on the land are simply told that it now belongs to someone else and they must go. The urban poor also suffer, notably in Phnom Penh where thousands have been evicted from their homes to desolate settlements outside the city.⁷

The Land Law allows the government to lease land to national and foreign companies for plantations and commercial agriculture for up to ninety-nine years under terms tantamount to ownership. Basic information about these “economic land concessions,” such as the identity of companies and shareholders, is hard to obtain. The largest lease was awarded in 2000 to Pheapimex Company Ltd., which is owned by close friends of Hun Sen. It spans two provinces and is over 300,000 hectares, far exceeding the 10,000-hectare ceiling stipulated in the Land Law.

The leaseholders of these concessions have seldom adhered to the conditions and safeguards stipulated in the law; nor have they contributed to state revenue, reduced poverty, or increased rural employment, which was the government’s rationale for granting them.⁸ Most often the concessions have been held for speculative purposes or have provided a cover for cutting down forests, which are protected under other laws. Since 1994, the government has also handed over vast tracts of land to the military as “military development zones,” ostensibly to provide land and jobs to demobilized soldiers. It refuses to say how much land it has allocated or where these zones are.

The World Bank has advised the government to support small farms and smallholder agriculture, which, it argues, would be as or more economically beneficial than Cambodia’s leasing policy.⁹ But the government has ignored this advice, and still more concessions are in the offing. Concessions for gem and mineral exploration, hydroelectricity dams, special economic zones, and tourism development have raised similar concerns.

For over a decade, the UK-based organization Global Witness has courageously exposed widespread illegal logging, asset stripping, and corruption involving highly placed government and military officials. Its reports have been confiscated, its staff threatened, its recommendations dismissed; and it can no longer operate in Cambodia. Its report “Cambodia’s Family Trees,” issued in June 2007, provides shocking evidence that the country is run by an elite that generates much of its wealth from the seizure of public assets. It shows how a relatively small group of Cambodian tycoons with political, business, or family ties to senior government officials have benefited from the allocation of forest concessions.¹⁰ “Country for Sale,” issued in February 2009, finds the same patterns of corruption and patronage in the management of Cambodia’s oil, gas, and minerals. It deplores the rapid parceling up and selling off of the country’s land and resources, with millions of dollars in company payments to secure contracts unaccounted for.¹¹ “Shifting Sand,” issued in May 2010, records the wholesale removal of Cambodia’s sand to Singapore where it is used to extend the island’s landmass.¹²

These policies have wrought havoc on Cambodia’s environment and driven vast numbers of poor people out of the city and off the land, their meager livelihoods destroyed. With nowhere to go, they become a source of cheap labor for plantations and factories in special economic zones. When members of desperate communities protest, their villages come under ever stricter control and their leaders are arrested on charges such as incitement or damage to property.

Roughly half of Cambodia’s national budget is provided by foreign governments and development agencies. Known collectively as “the donors,” they form a large and diverse presence in Phnom Penh. Yash Ghai repeatedly underlined their moral and legal responsibility toward Cambodia, urging them to be far more active in demanding progress on human rights and democratic and accountable institutions. While several voice the need for “good governance,” “participation,” “transparency,” “accountability,” and “the rule of law,” these concepts lack the clarity of human rights standards defined in law, and Cambodia’s leaders have become masters at interpreting them narrowly.

Hun Sen has routinely criticized and threatened organizations advocating for human rights, accusing them of pursuing a politically partisan agenda and inciting the people to unrest. Donor nations ranging from Japan to France have typically advised human rights groups to engage in a more “constructive” dialogue with the government. Many are inclined to view human rights as far too ambitious a concern for a country like Cambodia, and are more at ease with the UN’s 2000 Millennium Development Goals than with human rights treaties that are legally binding.

In any case, the donors have competing interests. China, which stands apart, is the largest contributor and does much to keep the ruling party in power.¹³ Japan is next, vying with China for influence. It is also largely supportive of the regime, and takes a lead role in UN deliberations on the Khmer Rouge trials and human rights. France, the former colonial power, is pragmatic and influential in the European Commission, a significant contributor. In 2008, the US resumed direct government aid, cut off after the 1997 coup. It has funded civil society organizations like the Community Legal Education Center and has sought to improve the functioning of political parties and the electoral system, but lately has given increasing priority to counterterrorism measures and military training and cooperation.¹⁴

The UN Development Program and other UN agencies, which together contribute a considerable amount, are supposed to give human rights central attention in their programs; but they have been hesitant to take on human rights violations. The Asian Development Bank and the World Bank have generally steered clear of human rights altogether.¹⁵

While donor nations have called for measures to strengthen the rule of law—primarily to improve the environment for foreign investment and private business development—the results have been disappointing. The judiciary remains the creature of the executive, and an anticorruption law, under discussion since 1994 and then rushed through parliament in March 2010, is extremely weak. Meanwhile the discovery of potentially significant deposits of oil and natural gas has made concerns about corruption ever more pressing.

For all but a few Cambodians, the supposed “beneficiaries” of overseas development aid, the donor world is remote and hard to comprehend, and such organizations as Human Rights Watch and Global Witness urge donors to be far more exacting about the way their funds are used. Despite these concerns, in June, donor nations including Japan, the US, and members of the EU pledged a record $1.1 billion with few questions asked.

The Khmer Rouge trials capture what little attention the outside world has to give Cambodia. The country’s citizens remain bewildered about the killings, deaths, and enormity of suffering under Democratic Kampuchea, and the forthcoming trial of the four senior Khmer Rouge leaders may provide some of the answers and understanding they are looking for. But it is far from clear that the proceedings will have a useful effect on Cambodia’s current predicament.

The prosecution, with the title Extraordinary Chambers in the Courts of Cambodia (ECCC), was formally set up by the UN and the Hun Sen government in 2006 to prosecute

senior leaders of Democratic Kampuchea and those who were most responsible for the crimes and serious violations of Cambodian penal law, international humanitarian law and custom, and international conventions recognized by Cambodia, that were committed during the period from 17 April 1975 to 6 January 1979.

The ECCC is a hybrid court, with Cambodian judges and staff in the majority, assisted by international judges and staff recruited through the UN. Its complex structure was initially established in a 2003 agreement, the result of years of wearisome negotiation between the representative of then UN Secretary-General Kofi Annan and Hun Sen’s government.

Many more hurdles had to be overcome, including the court’s location. The government persuaded the UN to agree to a location not in central Phnom Penh but instead at the site of the new Military High Command Headquarters, some ten miles from the city center, arguing that it would have advantages for security and would reduce costs. Meanwhile, Kofi Annan’s recommendation that the trials be funded through the UN’s regular budget and not exposed to the vagaries of voluntary contributions was disregarded, leaving the court in continuing financial difficulties, dogged by corruption, and open to meddling from donors and the government alike. The court’s budget was increased in 2008 from the original $56.3 million to $135.4 million to allow the trials to continue until the end of 2010. Many more millions will be needed to keep them going after that date.

The court continues to be mired in political interference and delay, and Hun Sen has made clear his opposition to extending prosecutions beyond the present five defendants.¹⁶ The judges and staff assigned by the UN to assist the court face familiar dilemmas, among them how to avoid lending legitimacy to a process in which Cambodia’s judiciary is not independent and the country’s leaders have set out to limit and control the trials.

The ECCC agreement allows the UN to withdraw should the government cause the court to function in a manner that does not conform to UN standards. But most certainly the UN, not the government, would be blamed. One of Hun Sen’s main claims is that the UN has a history of betraying Cambodia. Why, he asks, did it do nothing during Pol Pot’s regime? Why did it give the Khmer Rouge a seat in the General Assembly in the 1980s, when his own government in Cambodia went unrecognized? If the UN withdraws from the trials, or additional funds are not forthcoming, he will ask why the international community is abandoning Cambodia and failing to confront one of the most horrendous atrocities of the twentieth century, when a quarter of the country’s population died, even though the ECCC is set to accomplish little that the ordinary Cambodian courts could not accomplish themselves.

If the trials are to serve justice, one outcome must be the transformation of the “ordinary” system of justice in Cambodia today and an end to impunity for government and military officials and their friends once and for all. The trials must also establish as complete a record as possible of the crimes committed under the Khmer Rouge, and open the way to dispassionate examination of what happened before and after. Cambodia’s recent history continues to be intensely contested, and the questions it raises cannot continue to be buried if Cambodians are to build a decent future for their nation.

For most foreigners, Cambodia seems to be a relatively stable country, hospitable to outside investment and welcoming for expatriates and visitors touring Angkor’s temples and the killing fields. Hun Sen, now one of the world’s longest-serving prime ministers, maintains good relations with China, Japan, the US, Australia, and France. Unlike the Burmese generals, he has managed to manufacture an outwardly acceptable face, and has used international assistance to gain legitimacy at home and abroad.

Taking credit for ridding Cambodia of Pol Pot and the Khmer Rouge, Hun Sen cooperates with the trials as long as they don’t diminish his power. He talks of sustainable development and reducing poverty while he and his party have exploited the country’s resources and pocketed the payoffs. He tolerates the UN human rights presence, provided it limits itself to overcoming the legacy of Cambodia’s tragic Khmer Rouge past. He uses Pol Pot’s record as the yardstick to measure progress, thereby making failure impossible. The trials reinforce this message. No outside governments care to ask too many questions. Their economic and security interests are more important, as Hun Sen knows, and human rights are treated as dispensable.

Some believe that sooner or later Cambodians will rebel, but it seems more likely that their discontent will instead be channeled into extreme forms of nationalism, as under the Khmer Rouge. Cambodia has been divided and preyed upon for much of its modern history. Many Cambodians fear Vietnam and Thailand as predatory neighbors, and passions against both countries can become quickly inflamed.¹⁷

In the 1991 peace agreements, the “international community” assumed special responsibilities to the people of Cambodia that have yet to be properly honored. Cambodia today is a corrupt and cruel semidictatorship that should be getting much more scrutiny from the rest of the world. The Cambodian people deserve better. Thirty years after the appalling transgressions of the Khmer Rouge, much of the country still lives in fear.

—December 15, 2010