Transitional Justice in the Asia-Pacific (22 page)

The relationship of the Hun Sen government to the ECCC since its establishment has been a troubled one. To its credit, the Cambodian government pushed for a tribunal to hold KR leaders to account well before the international community was willing to support such an idea. But it has not handled the court well. There are advantages to the government if the court legitimises the current regime's narrative of rescue, reinforcing the role of Hun Sen and his senior officials in overthrowing the KR, and drawing attention away from accusations of ongoing corruption and human rights. Duncan
McCargo notes, ‘Putting ageing Khmer Rouge leaders on trial provides a convenient set of domestic scapegoats for the shortcomings of the current government; and by demonstrating an ability to undermine the goals of the tribunal's international backers, Hun Sen may prove able further to entrench his power base and secure his own standing.’
⁶⁶
Cooperation with the UN in establishing the ECCC also helped Cambodia to secure international aid and benefits. But the court is potentially a danger to the regime. In press coverage of the ECCC, in particular with regard to government interference in Cases 003 and 004, are frequent remarks that refer to Hun Sen's past as a KR cadre who was purged from the party in 1977 and fled to Vietnam.
⁶⁷
References to his past are used to suggest that he does not want the court to prosecute more than Cases 001 and 002 because he himself could be implicated. In fact,
he held a relatively low status (junior commander) within the KR and it is more likely that he has two concerns: that if senior ex-KR politicians or officials are implicated it will undermine his regime and disrupt his claims to have led a movement that saved Cambodians from the KR, and that the longer the ECCC continues to work, the more unwelcome interest could be generated in the role played by China – once the KR's major patron, now the largest contributor of foreign aid and foreign direct investment to Cambodia – during the 1975 to 1979 period.
⁶⁸
Hun Sen publically claims to be concerned that broadening the scope of prosecutions will lead Cambodia back to civil war – a concern that incidentally also serves to justify his particular style of for-all-intents-and-purposes authoritarian government.

Hun Sen and the Cambodian People's Party govern ‘with absolute power and control all institutions that could challenge their authority’.
⁶⁹
Since overthrowing his Co-Prime Minister
, Norodom Ranariddh, in a coup in July 1997, and winning an election in 1998 that was marred by violence and intimidation, Hun Sen has had full control over the country. His regime has been accused of severely limiting rights of expression, association and assembly, of committing numerous human rights abuses and of allowing widespread corruption.
⁷⁰
As Hauter
explains:

Hun Sen and his entourage have plunged Cambodia into a kind of hell. The country has become a regime of organized pillage, a vast bazaar of plundered goods, a regional center for shady business of every kind: drugs, gambling, sex. The head of the national police, one of Hun Sen's three closest associates, owns the largest brothel in the country
.’
⁷¹

Much corruption (which USAID estimates is the cause of $500 million stolen by government officials from public funds every year in Cambodia)
is connected to the logging industry.
⁷²
Logging was first used by the KR to gain funds and weapons from Thailand, but is now exploited by the many Cambodian politicians who have developed stakes in the industry. In 2007 
Global Witness
reported that:

Cambodia is run by a kleptocratic elite that generates much of its wealth via the seizure of public assets, particularly natural resources. The forest sector provides a particularly vivid illustration of this asset-stripping process at work…Cambodia's army, military police, police and Forest Administration (FA) are all heavily involved in illegal logging…Cambodia's most powerful logging syndicate is led by relatives of Prime Minister Hun Sen and other senior officials.
⁷³

As well as logging, the government has been criticised for land-grabbing schemes (around 20,000 residents were ejected from their land in Phnom Penh alone in 2008) and in September 2009 Hun Sen withdrew from a World Bank project aimed at settling land disputes, signalling the likelihood of further forced evictions.
⁷⁴
Land grabs are often designed to clear land for Chinese exploitation, and Western donors complain that their (weak) attempts to incentivise the Cambodian government to reform are blocked or outbid by China.
⁷⁵
However, Japan and large Western donors continue to donate – a record $1.1 billion in 2010 – while encouraging but not requiring reform.
⁷⁶

There is good reason, therefore, not to trust the motives of the Cambodian government in its dealings with the court, and not to allow the court to provide legitimacy to the regime. Yet Hun Sen has been allowed to use the ECCC very well in his own interests thus far. He can claim credit for the establishment of the ECCC and its success in Case 001 and Case 002 (assuming it runs its course) and looks likely to prevent Cases 003 and 004 from reaching the Trial Chamber. His staff are still embedded in the court, and corruption allegations have not been meaningfully confronted. If the court collapses through lack of funding or the withdrawal of the UN, he can blame the international community. And at the same time as claiming to support justice, his government continues to pursue policies that run counter to the principles of human rights and international justice that underlie the ECCC, safe in the knowledge that little effort will be made by international actors to attach conditions to the millions of dollars’ worth of external aid and investment given to Hun Sen's regime each year.

It is not clear whether external actors can help bring justice to Cambodia. The UN was correct to insist during negotiations on a court which was impartial and independent, but the ECCC has turned out not to be, and neither the UN nor external donors have used the leverage open to them. Of Cambodia's $1.5bn national budget, $825 million was supplied by foreign donors in 2010, meaning a great deal of scope for states to pressure the Hun Sen government to stop interfering in the court.
⁷⁷
Despite Cambodia's reliance on external aid, ‘[n]either the UN nor state donors have vocally supported the court's judicial independence in the face of bellicose government statements.’
⁷⁸

It is also unclear whether external actors really want to bring justice to Cambodia. The expanded history of the KR given in this chapter should
cause us to question any narrative that posits the Hun Sen regime as ‘bad’ and the international community as ‘good’ with regards to accountability in Cambodia. McCargo identifies an ‘uneasy tension’ between international liberalism and local authoritarianism, suggesting that, unlike liberal states, authoritarian states may choose to do business with their defeated enemies instead of or in addition to doing justice: ‘[t]he Hun Sen government chose to do business with Nuon Chea and other former Khmer Rouge leaders, until it became more advantageous to embrace a policy of putting them on trial.’
⁷⁹
As outlined above, the situation is rather more complex. As well as some Cambodian victims and NGOs that support the ECCC for liberal reasons (and work alongside liberal international actors), the UN and a series of powerful, occasionally liberal, states did business with the KR and are keen to forget having done so, and/or do business with Hun Sen and are keen to continue.

Now that the ECCC has reached a crisis over Cases 003 and 004, the UN must decide whether to stay involved, and confer legitimacy onto the proceedings, or withdraw, and allow either show trials or no trials of the alleged masterminds of a genocide. If international actors withdraw from the ECCC and cause it to shut down, not only will this serve the interests of the government by ending trials, it will also reinforce the view of many in the country (and not without evidence) that the international community cannot be relied upon to protect or support them
.

It is difficult to know how to conclude, in part because ECCC proceedings are ongoing, but also because there is so little hope in the story of transitional justice in Cambodia. Amnesty for lower-level perpetrators helped to attract KR deserters to the side of the Cambodian government (which brought some level of stability, but at a high price, given the allegations of government corruption just detailed) and there have been small
successes at the ECCC – the most significant of which are the completion of Case 001 and the progress made in Case 002. It remains a possibility that the existence of the ECCC will inspire reform in the Cambodian judiciary – currently heavily dependent upon the government for patronage and protection, widely seen as untrustworthy and corrupt and often poorly qualified
.
⁸⁰

It does seem clear, however, that the Cambodian case does not support the findings of recent studies that ‘prosecutions may deter human rights violations by increasing the perception of the possibility of costs of repression for individual state officials’ and that ‘transitional justice overall has a positive effect on the change in human rights and democracy measures’.
⁸¹
Rather than its leaders feeling vulnerable to prosecution or being socialised into observing human rights and democracy norms, Cambodia seems to be regressing in its human rights record. Kheang finds that ‘[s]ince 2003, Cambodia has evolved into hegemonic party authoritarianism wherein the minimum criteria for democracy – freedom of expression, freedom of assembly – have been seriously curtailed while periodic elections have been maintained.’
⁸²
With respect to human rights measures, based on PHYSINT data which uses a range of zero to indicate no government respect for physical integrity and eight to indicate full respect, Cambodia shows a significant decline from a score of five in 2002 to two in 2007. In line with the discussion above, Kheang notes that the international community has ‘settled on granting the Cambodian government its international legitimacy based on economic performance and political stability’ rather than on its observance of international norms.
⁸³
The willingness of the international community to overlook the present government's disregard of human rights standards coupled with the success of interested parties in limiting the temporal and personal jurisdiction of the ECCC so severely, means that far from signalling an end to impunity in Cambodia, the ECCC has demonstrated the power of the ruling elite to limit the administration of justice to those it seeks to delegitimise.

Of course no institution will be perfect – certainly not one run in an unsettled political climate, with authority split between national and (often uncoordinated) international actors. But what we are seeing in Cambodia is not bureaucratic incompetence or the best available option (which will inevitably reflect the existing power hierarchy to some extent), but complicity in impunity. It might be argued that Cambodia would be worse off without the ECCC than with it, and there is no way to prove that this is not the case. It might also be argued that Cambodia would be better off with a fully international tribunal than a hybrid model, though this was never a political possibility. But to end the discussion with either argument is to renege on the responsibility that theorists of transitional justice have to imagine better options and think of creative ways to hold more actors more thoroughly to account. It may be that criminal accountability is impossible to achieve for many of those most instrumental in the suffering of Cambodians, but criminal mechanisms do not exhaust the possibilities for accountability. Legal and political mechanisms such as inquiries and commissions at the international level may be appropriate to try to capture the broader responsibilities alluded to above and to generate sufficient shame to deter actors from repeating their behaviour in future.
⁸⁴
Certainly, those seeking to judge the ECCC should avoid accepting its limited scope and judging its successes and failures within that scope, as to do so is to miss the bigger picture, and effectively to offer impunity to many who do not deserve it. The Cambodian civil war lasted
at least from 1968, when the KR launched an armed struggle against the Cambodian government, until their final collapse in 1998 – it is this that the people are transitioning from and deserve justice for, not a conflict that ended thirty years ago.
⁸⁵
And even though the civil war has ended, the repression remains. The existence of the ECCC does not seem to be stemming human rights violations in Cambodia, and is more likely instead to be bolstering the power of a government that has been allowed to control the court by external actors who cannot generate the political will to defend the rule of law.

Accountability efforts for the Cambodian genocide have fallen victim to a process in which peace was prioritised over justice, and national interest (on the part of Cambodia and an array of international actors) was prioritised over both. Leaving aside the question of whether this can be justified, it means the ECCC is in many ways a charade of accountability that does not meet the expressed needs of many of the victims of the past or the citizens of the present. It is an accountability mechanism over which many of those who should be asked to account for their actions have power. It is in the interests both of Hun Sen and the international community to limit accountability to a relatively small number of individuals. Yet it is quite probably in the interests of Cambodian victims, and all those people who may be caught up in civil strife in Cambodia in the future, for a much wider range of actors to be held accountable. This will not happen, leaving the ECCC responsible for achieving an impoverished form of justice, which is better than nothing, but not by much.