RE-ENVISIONING TRANSITIONAL JUSTICE IN CAMBODIA

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Authors Jandali, Joanna

Citation Jandali, Joanna. (2020). RE-ENVISIONING TRANSITIONAL JUSTICE IN CAMBODIA (Bachelor's thesis, University of Arizona, Tucson, USA).

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RE-ENVISIONING TRANSITIONAL JUSTICE IN CAMBODIA

By

JOANNA JANDALI

______

A Thesis Submitted to The Honors College

In Partial Fulfillment of the Bachelors degree With Honors in

Political Science

THE UNIVERSITY OF ARIZONA

M A Y 2 0 2 0

Approved by:

______

Dr. Faten Ghosn School of Government & Public Policy

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Abstract

The Khmer Rouge genocide in Cambodia took place between 1975 and 1979, decimating an estimate of 1.7 million people in one of the deadliest Communist revolutions in the world. In 2006, the Extraordinary Chambers in the Courts of Cambodia (ECCC), a hybrid criminal tribunal, was created to redress the legacy of harms and impunity left by the Khmer Rouge. Despite these efforts, the people of Cambodia have yet to see justice delivered. I contend this is because Cambodia’s transitional justice program exclusively focuses on retributive justice and neglects restorative justice. To prove this, I first present a discussion on contemporary transitional justice practices. Next, I detail the rise, reign, and fall of the Khmer Rouge. From there, I trace the emergence of the post-conflict state, from the 1980s till the installation of the ECCC in 2006. I examine internal challenges faced by the ECCC, before turning to a broader analysis of where Cambodia stands today in relation to transitional justice goals. I conclude with recommendations for Cambodian transitional justice moving forward– a holistic approach based on the restorative practices of reconstruction, reparations, and reconciliation.

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RE-ENVISIONING TRANSITIONAL JUSTICE IN CAMBODIA Joanna Jandali

I. INTRODUCTION

II. TRANSITIONAL JUSTICE A. Tracing the Emergence of Contemporary Transitional Justice B. Goals of Transitional Justice C. Transitional Justice Mechanisms

III. CAMBODIA A. Historical Overview of Cambodia B. Rise of the Khmer Rouge C. The Khmer Rouge and the Reign of Terror D. Khmer Rouge Violations of International Law E. Demise of the Khmer Rouge and Rise of the Post-Conflict State

IV. TRANSITIONAL JUSTICE IN CAMBODIA A. The Rise of a Hybrid Tribunal B. Extraordinary Chambers in the Courts of Cambodia C. The State of Cambodia Forty Years Post-Khmer Rouge i. Political Security ii. Economic Security

V. A NEW VISION FOR CAMBODIAN TRANSITIONAL JUSTICE

VI. CONCLUSION

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“The [Khmer Rouge’s] revolution was so ultra-radical that even the communists were appalled. The Soviets studiously ignored it, the Chinese vainly tried to moderate it, and the Vietnamese ultimately destroyed it.”

– Craig Etcheson (2019)

I. INTRODUCTION

The Khmer Rouge’s reign in Cambodia between 1975 and 1979 resulted in the death of approximately 1.7 million people– a quarter of the nation’s population. The Khmer Rouge led one of the deadliest Communist revolutions in the world, effectuated through comprehensive urbanicides and ethnic cleansings. Cities were emptied. Populations were rounded up and herded into labour camps. Children were separated from parents, while men and women were forced into marriages. In state-arranged marriages, men and women were forced to procreate. Torture, persecution, repression, and executions were only some of the heinous tactics used by the Khmer Rouge in their quest to engineer a racially and socially pure “Kampuchea”. This became known as the Khmer Rouge genocide. Yet, despite this taking place more than forty years ago, the people of Cambodia have yet to see justice. Cambodia today is riddled by a culture of impunity, corruption, political and economic exploitation, human insecurity, and decades of unaddressed grievances. This has been a result of failed and misguided transitional justice efforts, primarily comprised of an international focus on criminal prosecution. The Extraordinary Chambers in the Court of Cambodia (ECCC) was established in 2006 to prosecute the senior leaders of the Khmer Rouge for violations of international law. The ECCC, however, has proven in effective in both meeting its own goals and expectations of healing, recognition, accountability, and justice, as well as effectuating broader post-conflict changes including democratization and stability. I contend that the transitional justice program created for Cambodia, primarily hinging on criminal prosecution, has failed in delivering justice. The ECCC has struggled with a multitude of challenges including high costs, low indictment and conviction rates, administrative constraints, judicial corruption, and victim-silencing. The ECCC has failed to both redress the harms caused by the Khmer Rouge as well as install a culture of accountability and rule of law in Cambodia. Moreover, I argue that this has been exacerbated by the lack of post-conflict institutional reconstruction. While the Khmer Rouge fell from power in 1979, the next decade of Cambodian history comprised of civil war between the varying militant factions. In the 1990s, a power sharing agreement was brokered with assistance from the United Nations (UN). The first free and fair elections following the fall of the Khmer Rouge were held in 1993. Yet, UN efforts at ushering in transformative political reform ended there. Over the next decade, the Cambodian People’s Party (CPP) led by Hun Sen, a former Khmer Rouge mid-level officer, consolidated power to create what is currently a single-party competitive-authoritarian state. Thus, Hun Sen and the CPP have exclusively been in power for more than two decades and remain in power till this day. This was a critical oversight by transitional justice efforts– the lack of institutional overhaul in the post-conflict era bred further state vulnerability that was, in turn, capitalized on by Hun Sen and the CPP. As a result, the population of Cambodia has been subjected to political intimidation, violence, human and civil rights abuses, economic disenfranchisement, and an overall state of human insecurity.

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The solution, I propose is re-envisioning Cambodian transitional justice away from the ECCC and toward three core pillars: institutional reform, economic reparations, and reconciliation through grassroot participation. While this would not serve as a comprehensive remedy for all of Cambodia’s post-conflict needs, it would serve as an appropriate starting point in the delivery of genuine justice and the transformation of Cambodia from a vulnerable state on the edge of violent resurgences into one of stability, rule of law, and reconciliation. To support these arguments, I first present a brief history of transitional justice followed by discussion of its goals and the varying mechanisms that comprise it. Next, I discuss the rise, reign, and fall of the Khmer Rouge, noting in particular what violations of international law were committed. From there, I trace the emergence of the post-conflict state, from the 1980s till the installation of the ECCC in 2006. I then examine internal challenges faced by the ECCC, before turning to a broader analysis of where Cambodia stands today in relation to transitional justice efforts. I conclude with recommendations for Cambodian transitional justice moving forward– a holistic approach based on reconstruction, reparations, and reconciliation.

II. TRANSITIONAL JUSTICE

A. Tracing the Emergence of Contemporary Transitional Justice

The UN defines transitional justice as “the full range of processes and mechanisms associated with a society’s attempt to come to terms with a legacy of large-scale past abuses” (UN Secretary-General, 2010, p. 2). The International Center for Transitional Justice (ICTJ) explains transitional justice as “the ways countries emerging from periods of conflict and repression address large-scale or systematic human rights violations so numerous and so serious that the normal justice system will not be able to provide an adequate response” (“What is transitional justice”, n.d.). Ruti Teitel (2003), one of the first few academics to put a name to the practice, regards transitional justice as “the conception of justice associated with periods of political change, characterized by legal responses to confront the wrongdoings of repressive predecessor regimes” (p. 69). Across the definitions, transitional justice appears to imply four ideal components: 1) transitional justice is not just one tool, but an array of mechanisms that can be used; 2) transitional justice is used in extraordinary situations of large-scale, systematic abuses; 3) transitional justice occurs at the end of conflict or “period of flux” (Roht-Arriaza, 2006, p.1), in particular at the point of political change in which one regime comes to replace another; and 4) transitional justice involves some form of re-dress, most commonly referred to as “justice”. Though the discourse of transitional justice only recently emerged in the late 1980s and early 1990s, transitional justice within international fora first made an appearance following World War II with the temporary installation of the Nuremberg Trials and the Tokyo military tribunal. The intention of both tribunals was accountability through individual criminal liability of respective regime leaders; as such, transitional justice took the form of a highly punitive approach falling exclusively under the international community’s authority. This post-war period was a “critical turn away from prior nationalist transitional responses toward an internationalist policy… thought to guarantee rule of law” (Teitel, 2003, p. 73). This era only later, following the end of the cold war, came to serve both as a global turning point toward increased liberalism and internationalist policies as well as the intrinsic foundation for transitional justice conceptualized through “the belief in law as a tool for state modernization” (Teitel, 2003, p. 74).

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Transitional justice was halted to a standstill with the rise of the Cold War but re- emerged with the fall of the Soviet Union in 1989 and a wave of accelerated global democratization, particularly in Latin America and Eastern Europe. Whereas the first introduction of transitional justice in the post- WWII period emphasized accountability and rule of law through international criminal justice, the transitional justice era of the 1980s and 1990s focused on preservation of peace through a domestic setting (Teitel, 2003; Roht-Arriaza, 2006). Budding democratic governments were interested in using domestic, rather than international, trials to try to legitimize their rule; they were also primarily interested in establishing peace and reconciliation as a precondition to nation-building (Teitel, 2003; Roht-Arriaza, 2006). Teitel (2003) describes this post-cold war phase as the “restorative model”– “the main purpose of transitional justice was to construct an alternative history of past abuses” (p. 78). Herein emerges the creation of truth and reconciliation commissions, national bodies tasked with investigations, documentation, and publications of past abuses (used in Argentina, Guatemala, Chile, and, most recognizably in, South Africa). Truth commissions provided a forum for dialogue between victims and perpetrators facilitated through local state and non-state actors. The truth commissions functioned to create and maintain a singular historical record as a vehicle for ushering in stability and peace. The current phase of transitional justice, originating in the 1990s with the ad hoc tribunals of Yugoslavia and Rwanda, has combined critical aspects of the preceding two phases: internationalized forums for individual criminal liability and a gamut of restoratives practices (truth commissions, memorials, and reparations). Notably, this current phase has transformed transitional justice paradigm from one only relevant in extraordinary of times to one normalized within everyday global politics (Teitel, 2003). This transformation has been galvanized both by the expansion of laws of war as well as the installation of the International Criminal Court (ICC) (Teitel, 2003). Herein begins the proliferation of contemporary criminal tribunals and restorative practices all aimed at accomplishing some form of transitional justice.

B. Goals of Transitional Justice

The efficacy assessment of a region’s transitional justice program requires understanding what goals have been promulgated from the start. The understood goals of a particular mechanism can be used as benchmark standards to determine whether a chosen mechanism of transitional justice has served to satisfy its own expectations. While is understood that no one mechanism and no one country or region can realistically meet all intended goals or expectations, it is still crucial to build a foundation of standards by which transitional justice programs can be constructively assessed against and improved for both current and future efforts. Additionally, as De Grieff (2012) argues, the aim of “justice” is one that is too abstract and too vague; rather, naming and identifying more specific, tangible goals serves to clarify the path toward improvement. One of the earliest and most comprehensive framings of transitional justice has been the UN Secretary General’s 2004 report on The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies (UN Security Council, 2004). And because transitional justice efforts in Cambodia have been largely facilitated under UN auspices, these general guidelines can serve as an appropriate foundation for expected outcomes. The UN identified three general objectives of transitional justice: 1) justice, 2) peace, and 3) rule of law (UN Security Council, 2004).

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Justice was conceptualized as the “ideal of accountability and fairness in the protection and vindication of rights and the prevention and punishment of wrongs” (UN Security Council, 2004, para. 7). Notably, the UN’s concept of justice does not appear to differ much from view on rule of law, which was defined as “a principle of governance in which all persons, institutions, and entities, public and private including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards” (UN Security Council, 2004, para. 6). Without clarification of how they differ, it safe to categorize them in the same pool of objectives– both rooted in a theory of accountability. Moreover, the UN notes that rule of law and justice must be consistent with international human rights norms and standards, and in turn, fastens both concepts not only to legal reform but also to political reform (UN Security Council, 2004). Therefore, the long-term interest becomes the establishment of democracy. Additionally, there is an element of deterrence that appears through the goal of “the prevention… of wrongs” (UN Security Council, 2004, para. 7). Thus, justice and rule of law encapsulate more specific goals of accountability (and therefore absence of impunity), human rights protection, and deterrence. Peace, on the other hand, was left undefined and thus, Galtung’s (2015) definition of negative peace – the absence of physical and structural violence– shall be used here. Reconciliation has also often been identified as a primary goal vis-a-vis its contribution to peace and stability (UN Security Council, 2004; “What is transitional justice”, n.d). Reconciliation encourages the emergence of “moderate forces” (UN Security Council, 2004, para. 47), which prevents the resurgence of violence and conflict and, therefore, engenders peace. The International Center of Transitional Justice explains the aims of transitional justice as “the recognition of the dignity of individuals, the redress and acknowledgement of violations, and the aim to prevent them from happening again” (“What is transitional justice”, n.d.). These aims differ from the UN’s conception of goals by adding in two distinctive victim-focused objectives: the recognition of past harms and the ability to seek redress. These are notable for while peace and rule of law are forward-looking in nature, recognition and redress are retrospective. Understanding whether transitional justice is intended to be retrospective, prospective, or both gives further dimension to an assessment of efficacy. To summarize, the overarching goals of transitional justice have been identified as peace, rule of law/ justice, democracy/ human rights protection, recognition of past harms, and redress of those past harms. While these goals are understood to be consistent across all transitional justice programs, each situation will be particular in its needs and, thus, will emphasize certain goals over others while introducing news goals to the mix. Though it should be noted that the needs and desires of a particular society are not always considered in the construction of a transitional justice agenda, as will be demonstrated with Cambodia. That aside, if we are to examine how transitional justice has affected a respective region, we must to do so with the broader foundation of goals and expectations as a basis for analysis.

C. Transitional Justice Mechanisms

Transitional justice has traditionally encompassed two versions of justice: a retributive style and a restorative style. Retributive justice is defined as “the reestablishment of justice through unilateral imposition of punishment on the offender consistent with what is believed the offender deserves” (Wenzel et al., 2008, p. 381). Within retributive justice, the doling of

8 punishment need not be accepted by the offender– rather, the punishment is enforced against the offender’s will (Wenzel et al., 2008). The belief is that by punishing the wrong doer, “a moral balance is restored” (Wenzel et al., 2012, p. 27). Punishment within this context denotes any negative consequence imposed on the offender, including “cost, loss, or suffering, which can be material or symbolic” (Wenzel and Okimoto, 2016, pp. 238-239). Retributive justice as a form of transitional justice has evolved from the Western tradition of criminal prosecution within an adversarial setting, whereby principles of objectivity, impartiality, fairness, and consistency are most critical. Prosecutions are rooted in legal based procedure– accusations are pursued, not by the victims, but by the state, with a judge or jury delivering conviction and sentence using evidence and the applicable law. Thus, “because crime is considered the domain of the state, there is only a limited role for the stakeholders themselves; for victims and offenders to present their side of the story, express their feelings, ask and answer questions important to them, or offer an apology or forgiveness” (Wenzel et al., 2007, p. 377). The Nuremberg and Tokyo tribunals served as the archetypes for retributive justice within transition. Today, retributive justice as part of transitional justice programs consist of criminal prosecutions through international courts (ICC), ad hoc tribunals (ie. International Criminal Tribunal for the former Yugoslavia, Rwanda), and hybrid tribunals (ie. Extraordinary Chambers in the Courts of Cambodia). Restorative justice, on the other hand, pivots away from the legal, professional arena and provides a communitarian approach in handling harms and redress. Whereas retributive justice follows a Western, legal approach where the focus is the crime and the offender, restorative justice is inherently an Indigenous, informal mechanism where the focus is the victim and the process of redress (Lambourne, 2009). Marshall (1998) defines it as “a process whereby parties with a stake in a specific offence resolve collectively how to deal with the aftermath of the offence and its implications for the future” (p. 28). Restoration shifts away from punishment and instead examines “rebuilding or transforming relationships and restoring community” (Lambourne, 2009, p. 31). Moreover, restorative justice aims to promote “healing through structured communication processes among victims, offenders, community representatives and government officials… justice is not based on punishment inflicted but the extent to which harms have been repaired and future harms prevented” (Gilbert and Settles, 2007, p. 7). Critical to note is that restorative measures are not only person-to-person but can also involve restoring relations between individuals and their surrounding social, political, and economic environment. Whereas retributive justice consists of judicial mechanisms with some form of state involvement, restorative justice consists of non-judicial mechanisms that can be either state or non-state run. Restorative justice practices within a transitional justice framework broadly consist of: 1) truth-seeking and reconciliation processes, 2) reparations programs, and 3) institutional reform. The UN defines truth commissions as “investigative bodies, which map patterns of past violence, and unearth the causes and consequences of these destructive events” (UN Secretary- General, 2010, p. 8). This can include interviewing and collating statements from witnesses, victims, and offenders, providing a non-adversarial space for testimony, conducting research into patterns of harm and consequences, and publishing a report with findings and recommendations. One of the most notable truth commissions has been the Truth and Reconciliation Commission (TRC) in Africa post-apartheid. Under a newly elected democratic parliament, South Africa established the TRC, which would serve to provide the “truth about violence in the apartheid era… provide details to family members about what happened to loved ones who had

9 simply ‘disappeared’… help families locate mortal remains of loved ones… provide historical record of the deeds of the apartheid era” (Cobban, 2007, p. 9). Moreover, the TRC combined truth seeking with a mechanism of amnesty, a condition necessary for conflict resolution– the apartheid era security forces were willing to comply with the 1994 democratic elections so long as amnesty granting was a part of the post-conflict transition (Cobban, 2007). Within the TRC, individuals who had committed politically motivated violence could exchange truthful and complete testimony for a grant amnesty. Accordingly, truth commissions can compound their victim-centered, communitarian healing approach with reconciliatory measures (like amnesty) aimed at integrating different factions of society under one historical record Reparations “seek to redress systematic violations of human rights by providing a range of material and symbolic benefits to victims” (UN Secretary-General, 2010, p. 8). These can include financial compensation or restitution to victims and their families, rehabilitation programs including medical and psychological services, memorialization (ie. museums, days of commemoration), access to institutional support such as education and health care, and public apologies (UN Secretary-General, 2010). Reparations can be granted to individuals, to families, and even to entire communities. The right to reparations has been affirmed in both human rights law and humanitarian law (General Assembly resolution 60/147, 2006). Reparations can right both physical harms but also structural harms, such as systemic economic violence as a result exclusion and marginalization. The ICTJ defines institutional reform (or reconstruction) as “the process of reviewing and restructuring state institutions so that they respect human rights, preserve the rule of law, and are accountable to their constituents” (“Institutional Reform”, n.d.). Reconstruction as a mechanism for transitional justice has been one of the least emphasized and least studied, yet holds great importance as Balint et al. (2017) explain, “there are systemic forces shaping such patterns of power and impunity, which persist at a basic level throughout both conflict and post-conflict periods” (p. 6). Without examining these state institutions that may have served as instruments of oppression and violence in the conflict period, the state remains vulnerable to the same abuses that occurred in the first place. Institutional reform can occur at all levels that comprise the state apparatus, including reconstruction of security forces, judiciary, and political processes. Within these institutions, vetting can serve as a useful tool to avoid completely eliminating a functioning bureaucracy while also removing or sanctioning corrupt officials and public servants (“Institutional Reform”, n.d.). Moreover, despite overwhelming concentration by transitional justice programs on civil and political efforts, reconstruction can and should also take place within the economic arena, to curb lingering systems of structural violence. Reparations, rebuilding of critical infrastructure (ie. roads, schools, health care), and redistribution of resources, land and wealth all can serve as a means to reconstruct the socio-economic dimension. Truth commissions, reparations, and institutional reform, while most recognized and most utilized, do not comprise the end of the list of restorative mechanisms. Rather, they provide a starting point for understanding and developing non-judicial, non-retributive forms of post- conflict transition. However, it should be noted that despite the above discussion, retributive and restorative justice do not form a perfect dichotomy. That is because restorative justice is not always mutually exclusive with retribution; to the contrary, some restorative mechanisms often do include punishments, while some retributive mechanisms involve some form of restoration (Wenzel et al., 2008). The line between retributive and restorative often are blurred in practice (Lambourne, 2009). For instance, restorative practices can include requiring an offender to pay compensation to a victim or participate in community service, this functioning as “punishment”

10 of the offender. What distinguishes retributive from restorative justice is in the primary focus of the mechanism: while punishment is intrinsically the medium through which justice is restored in retributive mechanisms, punishment is only an accessory rather than a necessity for restorative justice.

III. CAMBODIA

A. Historical Overview of Cambodia

The Kingdom of Cambodia is nestled within the Indo-Chinese peninsula of Southeast Asia, with Thailand to its west, Laos to its north, and Vietnam to its east. Throughout the mid 19th century, Cambodia (known as Kampuchea at the time) found itself subject to territorial vulnerability at the hands of Siam (modern-day Thailand) and Vietnam, both of whom struggled for dominance over the region. King Norodom I of Kampuchea sought foreign assistance to help ward off encroachment by the Siamese and Vietnamese on either side; this assistance was offered by France in 1863 when Kampuchea became a French Protectorate (Corfield, 2019). In exchange for timber and mining rights, the French would ensure the protection of Kampuchean territory against its neighbors. Once territorial integrity was guaranteed though, the French started to offer the people of Kampuchea little while concurrently extracting high taxes and fees (Brinkley, 2011, p. 25-26). Throughout their colonial rule, the French encroached on all aspects of life within Kampuchea. French authorities began to plant rubber plantations in the 1930s. Plantation production was funneled directly into the export market and any surplus production was extracted from Kampuchea thereby curbing any capital formation within the country. As part of its quest for resource extraction, the French imported Vietnamese workers to supplant the low productivity of the Khmer agrarians. This change to the ethnic makeup of the country becomes critical later on as these Vietnamese plantation communities become hubs for resistance during independence struggles of the 1940s and 1950s (Etcheson, 2019, p. 5-8). Rice farming, however, controlled most of the Kampuchean economy. Prior to French rule, farmers worked on family-size plots owned by the state. While the farmers did not own the land, they were free to use the land as they pleased, short of destruction or abuse. With the introduction of the French, however, these lands were transferred to private ownership by small proprietors creating a system of widespread debt that had not existed before (Vickery, 1989, p. 40). As plantations and agrarianism came to dominate the Kampuchean economy, the society was left primarily uneducated. With more than 50 years of colonial rule, only one secondary educational institution was established under the French (Kiernan, 2004). The relative few that were educated became their own class within society, a point that is later capitalized on by the Khmer Rouge. The intellectual class displayed no opposition to the French rule primarily because of the protections and advantages they enjoyed at the hands of French authorities. The educated elite in turn became the political elite as they found themselves occupying roles as French colonial functionaries (Vickery, 1989, p. 40). French imperial ventures extended beyond economic exploitation and into territorial cession. Ironically, despite the Kampuchean monarchy initially abrogating to French colonial rule specifically to protect Kampuchean territory from annexation by the surrounding powers,

11 the French in 1914 ceded approximately one third of Kampuchea territory to Thailand. This territory was primarily comprised of large ethnic Khmer populations, as well as crucial economic and cultural assets. Almost immediately, these populations began to form resistance movements, thus reflecting the beginning inklings of anti-colonial sentiment that is to sweep southeastern Asia throughout much of the mid-20th century (Etcheson, 2019). In 1941, the French selected 18-year old Norodom Sihanouk to take the Khmer throne. With the rise of Khmer nationalist movements in the 1930s and a weakening of colonial hold by western powers following World War II, the French were eager to appease the local population to assure continued regional control. Thereby, French policy following 1945 centered on giving the subjected people an air of autonomy while concealing continued French imperialism. The French allowed the creation of a constitution, political parties, and regular elections while retaining control over defense, foreign affairs, and anything they deem necessary to their continued authority. With this came the emergence of a political consciousness as well as severe political factionalism across Cambodia as varying political parties and offshoots started to form (Corfield, 2009). Political infighting was only exacerbated by the Indochina War, also known as the Anti- French Resistance War in Vietnam, which started in 1946. Vietnamese Communists spurred a militant Communist faction in Cambodia, contributing to widespread violence across the Cambodian countryside. Fearing the Communists would come to power if fighting against the French continued, King Norodom Sihanouk, who had appointed himself prime minister in 1952, launched a national crusade for independence against the French authority. By 1953, a losing France abrogated their control over Cambodia in exchange in a guarantee over French property in the country (Corfield, 2009). King Sihanouk agreed and by November 8, 1953, Cambodia had officially gained independence.

B. Rise of the Khmer Rouge

A reeling Cambodia defined the 1950s following the downfall of French colonial rule that had controlled the nation for decades. Authoritarianism subsequently filled the hole left by the French in the form of King Sihanouk’s neutralist government. Economic reverses ravaged the country; the gap between city wealth and countryside destitute grew larger (Kiernan, 2004). Adding to the growing rural animosity, the cities were predominately comprised of ethnic Chinese and Vietnamese populations while the countryside was made up of ethnic Khmer. Thus, the cities were viewed as hubs of foreign economic and political power that dominated Cambodian government. In 1955, King Norodom Sihanouk eventually abdicated the throne to his father, reclaiming his title of Prince Sihanouk, so that he “concentrate on politics” (Corfield, 2009, p. 51). During the 1950s and 1960s, education levels skyrocketed, developing a burgeoning generational gap between peasant parents and educated youth (Kiernan, 2004). These educational youths often found themselves leaving school without any prospects for employment. The Khmer Rouge ultimately recruited from this faction of unemployed, educated students. Pol Pot, the subsequent leader of the Khmer Rouge, was one of these students. Following his completion of scholarship in France where he joined other young Khmer, Communist students, he returned to Cambodia taking over the leadership of the Workers Party of

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Kampuchea in the 1960s (Kiernan, 2004). Pol Pot and other French-educated Communists changed the party’s name into the Communist Party of Kampuchea (CPK). Throughout the 1960s, Cambodia was riddled with both internal and external conflict leading the country to economic and military destabilization (Kiernan, 2010). First, Cambodia was feeling the spillover effects of the Vietnam War. As Cambodia was used as “a staging base for guerrilla attacks on South Vietnamese and US forces” (Corfield, 2009, p. 56), Cambodian civilians were left vulnerable. Nearly 150,000 Cambodians died as a result of the U.S. bombings (Kiernan, 2012). Additionally, Prince Sihanouk cracked down on any political dissent, leading a policy of harsh political repression. This led the CPK under Pol Pot leadership to go into hiding in 1964 (Corfield, 2009). Despite this, the CPK capitalized on the both destabilizing forces (the Vietnamese War and Sihanouk’s repression) to recruit from dissatisfied rural populations. In 1970, the socialist Sihanouk regime was overthrown by right wing coup led by U.S. backed general, Lon Nol. This was followed by the outbreak of a civil war between royalist supporters of Prince Sihanouk (who joined forced with the Pol Pot and CPK, increasing CPK supporters by the thousands) and Lon Nol’s Khmer Republic (Corfield, 2009). As hundreds of thousands of Cambodians fled into the cities as a result of the war, the CPK began its ascension into power. Using the devastation to their advantage, the CPK regime led by Pol Pot capitalized on the destruction as propaganda tools to recruit members to their ranks. The CPK became such a force that Prince Sihanouk named them the “Khmer Rouge” from his place of exile in China; Khmer for their dream of ethnic homogeneity and Rouge for Communist ideals (Corfield, 2009). By 1975, the Khmer Rouge had grown to such an extent that they succeeded in overthrowing the Lon Nol regime, emerging as the controlling regime of Democratic Kampuchea (DK) (Kiernan, 2012).

C. The Khmer Rouge and the Reign of Terror

The Cambodian Communist Revolution led by the Khmer Rouge began on April 17, 1975 with the evacuation of Phnom Penh and all other cities, beginning the establishment of a strictly rural population (Corfield, 2019). With that came four years of utter bloodshed, with an estimated total of 1.5 million people, almost 20 percent of the Cambodian population, dying as a result of Khmer Rouge policies (Kiernan, 2002). Between 500,000 to one million individuals were executed, while the rest died of illness, malnourishment (Kiernan, 2002). The Khmer Rouge motivating ideology was that of racial purity–

“Democratic Kampuchea treasured the Cambodian ‘race’, not individuals. National impurities included the foreign-educated (except for Pol Pot’s Paris-educated group) and ‘hereditary enemies’, especially Vietnamese. To return Cambodians to their imagined origins, the Pol Pot group saw the need for war, and for ‘secrecy as the basis’ of the revolution” (Kiernan, 2012, p. 335).

Moreover, the Communist Revolution was a class revolution, “ending 2,000 yeas of subjugation of the Khmer peasantry at the hands of foreign and class enemies” (UN General Assembly, 1999, para. 15). The Khmer Rouge sought to establish a racially, socially, and economically homogenous Cambodia independent of any foreign influence or interference– a declared “clean social system” (UN General Assembly, 1999, para. 16).

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To accomplish this, DK had to be sealed off from the rest of the world and achieve self- sufficiency through agricultural production in the form of communes (Ross, 1987). As the borders were closed, the Khmer Rouge began a nation-wide forced population transfer from the cities into the countryside. Many of deaths arising from the Khmer Rouge regime were a direct result of malnourishment, purges, beatings, and overworking (Kiernan, 2012). Once in the communes, children were separated from their parents, each group organized into smaller factions obligated to partake in the forced agricultural labor (Kiernan, 2012). One crucial component of the Khmer Rouge policy that has been overwhelmingly neglected to date was their state control over sexual behavior, often through the form of forced marriages. The Khmer Rouge placed severe restrictions on sexual activity “in order to promote specific types of procreation as a form of social engineering” (Oosterveld and Sellers, 2016, p. 323). At first blush, it would seem that such a restrictive policy would limit sexual violence– but in fact, it had the opposite effect of actually encouraging sexual crimes against women. Anderson (2004) explains, “the Khmer Rouge policy drove the practices underground. In order to conceal evidence, soldiers killed women immediately after raping them” (p. 790). One early study found that 17% of respondents had experienced rape or sexual violence under the Khmer Rouge (Mollica et al., 1993 as cited in Oosterveld and Sellers, 2016, p. 323). In a matter of months, the entire country had been forced into inhumane living conditions of rudimentary, destitute collectives situated in the countryside. The entire educated middle class had been eliminated due to Khmer Rouge’s senior-level paranoia. Alongside their ideologically- motivated urbanicide, the Khmer Rouge leadership sought a purge of domestic population of any foreign entities or corruptive factions (Ross, 1987). Kiernan (2012) describes the shutdown of the country as,

“the use of foreign languages was banned, embassies and press agencies were expelled, local newspapers and television shut down, radios and bicycles confiscated, mail and telephone communication suppressed. Cambodians soon learned that any display of knowledge or skill, if ‘contaminated’ by foreign influence, was dangerous. Human communications were reduced to daily instructions and orders” (p. 337).

Torture and extermination camps were erected. One of the most infamous of these camps was Tuol Sleng, or Security Prison S-21, a former school transformed into one of the largest detention and torture facilities in all of Cambodia. S-21 was so brutal that only seven individuals detained at S-21 survived, and that’s because they were artists commissioned by the regime to provide portraits and depictions of Pol Pot (Form, 2009). Torture at S-21 and other camps included electric shocks, submergence in water, waterboarding, and hanging from a gallows until victims became unconscious (Form, 2009, p. 893). Form (2009) notes the inhumane and abusive experience of victims,

“After arrival in S-21, the guards photographed the prisoners and forced them to reveal information about themselves. The prisoners were typically chained. Each one had to observe strict rules, and could be punished for violations with beatings or electric shock. Contact with the outside world was virtually impossible; writing to one’s relatives was forbidden. Every action required the permission of the guards. Torturers induced the prisoners to admit to everything and confess to all charges against them” (p. 893).

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The victims of the Khmer Rouge regime can be split into three groups: 1) religious groups, 2) ethnic groups, and 3) part of the majority national group (Kiernan, 2012). Starting with the religious groups, the Khmer Rouge targeted Buddhist monkhood, who previously played a significant role in Cambodian politics. Preserved CPK documents outline the explicit policy aimed at eliminating Buddhist practices. By 1979, 90-95% of the Buddhist population had disappeared (“Treatment of Buddhists, 2014). Falling within both a religious group and an ethnic group, the Khmer Rouge targeted the Cham Muslim minority. The Chams were culturally different from the Khmers; the Chams had their own language, dress, and religious practices. The Khmer Regime proclaimed policies aimed at denying the continued existence of any ethnic minority groups (Kiernan, 2012). Along with the Cham Muslims, ethnic Vietnamese, Khmer Krom, ethnic Chinese, and Thai minorities faced the similar fates of ethnic cleansing through mass killings. Ethnic minorities were often arrested, and either died from immediate execution or torturous conditions (Kiernan, 2012) The third targeted victim group were individuals that comprised majority national group– Khmers. Kiernan (2012) notes, “of the majority Khmers, 15 percent of the rural population perished between 1975 and 1979, and 25% of the urban population” (p. 343). In particular, the Khmer Rouge targeted officials of the prior regime as well as members of the educated class including teachers and students (UN General Assembly, 1999). The Khmer Rouge conducted frequent intraparty and general population cleanses– the paranoia that struck the Khmer Rouge motivated policies aimed at eliminating all “traitors” that may have foreign links (Kiernan, 2012). The senior-level leaders of the Khmer Rouge comprised a small group of foreign- educated elites that retained the entirety of all policy control. This group was the standing committee of the central committee within the CPK. Along with Pol Pot who served as number one in command, the senior level leaders included Nuon Chea (No.2) and Ieng Sary (No. 3) as well as Son Sen, Khieu Samphan, Ieng Thirith, and Yun Yat. The paranoia that infiltrated the Khmer Rouge regime was the primary reason that control remained limited amongst the few senior-level leaders.

D. Khmer Rouge Violations of International Law

In 1997, a UN commissioned “Group of Experts” was deployed to Cambodia to conduct a comprehensive investigation and report of the Cambodian and international law violations perpetrated by the Khmer Rouge regime (UN General Assembly, 1999). The report categorizes abuses by the Khmer Rouge into four areas:

1) forced population movements; 2) forced labour and inhumane living conditions; 3) attacks on enemies of the revolution; and 4) purges within the Communist Party of Kampuchea (UN General Assembly, 1999).

Methods used to carry out such abuses included: direct executions, torture, detention, forced marches, long working hours, insufficient food, and inadequate healthcare (UN General Assembly, 1999, para. 32). The report concludes that the Khmer Rouge participated in genocide,

15 crimes against humanity and war crimes in violation of international human rights and humanitarian law. Genocide is the undertaking of an act or acts– killing, causing serious physical or mental harm, deliberately inflicting on the group conditions of life calculated to bring about its physical destruction, imposing measures intended to prevent births within the group, and forcibly transferring children of one group to another– with the intent to destroy, in whole or in part, a national, ethnic, racial, or religious group (UN General Assembly, 1948). The Group of Experts found evidence of the “commission of genocide against the Cham, Vietnamese and other minority groups, and the Buddhist monkhood” (UN General Assembly, 1999, para. 64). Crimes against humanity are defined as specific acts “committed as part of a widespread or systematic attack directed against any civilian population” (UN General Assembly, 1998, Article 7). Crimes against humanity include murder, extermination, enslavement, deportation or forcible population transfer, arbitrary detention, torture, rape and sexual violence, enforced disappearance, and other inhumane acts of similar character intentionally causing great suffering (UN General Assembly, 1998, art. 7). The report finds “cases of murder, forced labour, torture and other inhumane acts… forcible transfers of populations” sufficient to reach the threshold requirements to be considered crimes against humanity (UN General Assembly, 1999, paras. 67- 70). War crimes, as defined under the Fourth Geneva Conventions of 1949, are grave breaches of individuals or property protected by the Convention on Protection of Civilian Persons in Time of War (International Committee of the Red Cross, 1949). Grave breaches include

“willful killing, torture or inhuman treatment… willfully causing great suffering or serious injury to body or health, unlawful deportation or transfer or unlawful confinement of a protected person… willfully depriving a protected person of the rights of fair and regular trial…taking of hostages and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly” (International Committee of the Red Cross, 1949, art. 147).

Acts of murder, torture, and inhumane treatment of Vietnamese individuals in Vietnam and in Cambodia by the Khmer Rouge were found to constitute war crimes. The Khmer Rouge also committed massacres of Thai villagers during border clashes with Thailand, further constituting commission of war crimes (UN General Assembly, 1999, para. 74). Additionally, the report found evidence of the Khmer Rouge committing “wanton destruction of towns and plunder of public or private property” in violation of the Fourth Geneva Convention of 1949 (UN General Assembly, 1999, para. 74). One notable absence in the report is any findings on the sexual and gender-based violence constituting war crimes and crimes against humanity (UN General Assembly, 1999). As discussed in Section II Part C , the Khmer Rouge participated in systematic forced marriages, and in turn forced intercourse for procreation. This policy is nowhere mentioned in the report, and thus no recommendations were made for the prosecution of sexual and gender-based violence.

E. Demise of the Khmer Rouge and Rise of the Post-Conflict State

16

The Khmer Rouge’s atrocities only slowed and eventually came to an end when they were overthrown in December of 1978 by the Vietnamese forces (Ross, 1987). As the senior leaders of the Khmer Rouge fled into Cambodian jungle, the nation fell into another decade of violence as varying armed factions fought for power, followed by an ineffective, internationally led transition period throughout the 1990s (Corfield, 2009). These events are critical to consider because they fostered the breeding ground that led to the ineffective delivery of justice, stability, and transition once the Extraordinary Chambers in the Courts of Cambodia (ECCC) emerged in 2006. With the fall of the Khmer Rouge from power in 1979, Vietnamese forces took control of Phnom Penh, installing a new pro-Vietnamese (and in turn pro-Soviet) Communist regime– the People’s Republic of Kampuchea (PRK) ruled by the Kampuchean People’s Revolutionary Party (KPRP). The new regime, though a relief compared to the practices of the Khmer Rouge, was seen as an inherently foreign power, resembling the colonial dynamics of Cambodia under the French protectorate (Chandler, 2015, p. 283). Thus, the next decade was marked by more civil strife, with opposition forces to the PRK forming a coalition– the Coalition Government of Democratic Kampuchea (CGDK)– to push out the Vietnamese and brings down the PRK regime. The CGDK comprised of the exiled Khmer Rouge cadres, a royalist party (National United Front for an Independent, Neutral, Peaceful, and Cooperative Cambodia– FUNCINPEC) supporting the restoration of Prince Sihanouk to the throne, and former pro-Lon Nol forces (Khmer People’s National Liberation Front) (Croissant, 2008, p. 653). Vietnamese forces withdrew from Cambodia in 1989. Following military stalemates towards the end of the 1980s, the United Nations intervened. In October of 1991, the Paris Peace Agreement, under the auspices of the United Nations, was signed. The power-sharing agreement established the Supreme National Council (SNC), an interim government made up of the PRK regime and its opposition forces under UN supervision (Chandler, 2015). Herein, the United Nations Transitional Authority of Cambodia (UNTAC) emerged, tasked with overseeing free and fair elections, administration of existing bureaucratic structures, disarmament of forces, and repatriation of refugees. While UNTAC had some successes, including the repatriation of over 300,000 refugees and the operation of a free and fair election in 1993, what UNTAC left behind was a reinforcement of an old political elite structure that has paved the way for contemporary corruption and illiberalism. For one, UNTAC was unable to conduct extensive disarmament– “from the summer of 1992, the Khmer Rouge blocked disarmament of its troops and did not allow the peacekeeping force to enter its territory. As a consequence, the other parties also denied disarming their troops” (Croissant, 2008, p. 660). The UNTAC mission lacked the capacity and preparation to successfully exert force on the opposing factions that comprised the transitional government. Metzl describes the UNTAC personnel as,

“[having a] poor understanding of local conditions…poorly trained, and [having] no clear sense of what they should be doing. They could offer little protection to Cambodian villagers who might want to co-operate more with the U.N. officials, or challenge the oppressive power of the local authorities” (Metzl, 1995, pp. 88-89).

Additionally, the use of force by the UNTAC officers would have worked contrary to the intention of UNTAC as an inaugural peacekeeping mission, subsequently threatening the credibility of the U.N. as an institution for transition. (Metzl, 1995).

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UNTAC’s inability to demobilize and disarm militant factions in turn translated into a lack of control and unsuccessful oversight over the bureaucracy, allowing the democratic principle of “loyal political opposition” to disintegrate into a one-party state. In 1991, the KPRP, the political party that had controlled the Vietnamese installed-PRK regime, renamed itself the Cambodian People’s Party (CPP), abandoning its Marxist-Leninist philosophy in exchange for a more democratically liberal image in hopes of maintaining political viability (Corfield, 2009). This proved successful as the CPP has been able to monopolize Cambodian government since the 1993 UN administered elections. In the 1993 election in which 97% of Cambodians eligible to vote cast a ballot, the royalist party, FUNCIPEC, secured 45% of the votes and the CPP secured 38% of the vote (John, 2005, pp. 407- 408). However, neither party was able to secure a majority of the seats in the Constituent assembly. This placed FUNCIPEC in a precarious position and opened the door for the CPP, led by former Khmer Rouge commander and later defector Hun Sen, to capitalize on the opportunity to secure more power. Journalist John Brown (1993) observed following the election, “There is evidence that Hun Sen and the CPP understand power only in absolutist terms. It is possible that for them, power is not shared, it is accumulated and protected. Governments are not transformed, they are over-thrown” (as cited in John, 2005, p. 408). Herein emerged the power sharing agreement between FUNCIPEC and CPP, forming the Provisional National Government of Cambodia (PNGC). While CPP may have won only 38% of the votes, it secured a 50:50 power arrangement with FUNCIPEC, which over the next decade transforms into a complete monopoly of the state (John, 2005, p.409). With the CPP, and thereby cadres of the former PRK, in power, the ‘transitional’ government looked little different from the previous regime. While UNTAC’s political reconstruction focused more on neutralizing the international character of Cambodian politics, the CPP was able to build on existing systems of patronage to depoliticize the general citizenry while centralizing material resources within the ruling elite whom occupied the bureaucracy. Heder (1995) notes,

“What UNTAC allowed was not so much a social revolution as a social restoration. Finally, after years of suppression and involution in neo-traditional forms under the CPP, old patterns of patron-client and neo-patrimonialism have re-emerged in more readily recognizable forms” (pp. 121-121).

This occurred, in part, because of UNTAC’s ineffectual oversight of the bureaucracy. At the root of it, UNTAC lacked the institutional capacity to engage in such a task. Croissant (2008) notes, “UNTAC’s lack of manpower (170 mission staff were expected to oversee more than 100,000 Cambodian civil servants under CPP control alone), technical difficulties, and the lack of knowledge of Cambodian history, culture or language, allowed the ruling Cambodian People’s Party to shield the bureaucracy from effective supervision” (p. 660). Thus, despite UNTAC’s presence in Cambodia, the CPP was able to both consolidate its own power and diminish the influence of opposition forces, leading Cambodia away from competitive democracy into a single-party state. But even if the U.N. mandate had been more generous in granting authority and sheer manpower to the UNTAC mission, the UN officers sent to Cambodia were overwhelmingly ignorant of the power dynamics in Cambodia (Metzl, 1995). Without understanding how social and political systems of patronage operated in Cambodia, UNTAC was going to be unsuccessful in ushering in genuine reconstruction and democratization regardless of UNTAC’s institutional and administrative strength. This incapacity combined with UNTAC’s weakened legitimacy

18 following the failed disarmament attempts left the CPP ample opportunity to funnel resources into the elite-controlled state apparatus while simultaneously presenting a façade of compliance with the new democratic order (primarily through participation in elections). The most glaring flaw, however, in this transition period was the inclusion and acceptance of former Khmer Rouge members in the post-transition process and government. “The final agreement did not preclude the Khmer Rouge from participating in the Cambodian elections, nor did it prevent former officials of the Khmer Rouge associated with the genocide from holding office in the future” (Lambourne, 2014, p. 31). Rather than utilize a lustration method to cleanse Cambodian politics of the same perpetrators that had rocked traditional notions of human rights both under the Khmer Rouge regime but also throughout the 1980s under Hun Sen and the KPRP, the international community accepted, if not strengthened, power dynamics that bred conflict in the first place. The ruling elite were left untouched by the transition period, allowing the CPP to capitalize on its existing bureaucracy and armed forces to consolidate power. As a result, the CPP under Hun Sen’s leadership has retained exclusive control over the Cambodian government ever since then.

IV. TRANSITIONAL JUSTICE IN CAMBODIA

A. The Rise of a Hybrid Tribunal

It was not until 1997 that the Cambodian government appealed to the UN, requesting the establishment of a criminal tribunal to try the crimes of the Khmer Rouge (Kiernan, 2012). Following the investigation conducted by the UN commission Group of Experts in 1998, recommendations were made for the creation of an international ad hoc tribunal to be held in a nation other than Cambodia; specifically, the commission advocated against a domestic tribunal or an international tribunal held within Cambodia (UN General Assembly, 1999). The commission argued, “the level of corruption in the court system and the routine subjection of judicial decisions to political influence would make it nearly impossible for prosecutors, investigators and judges to be immune from such pressure in the course of what would undoubtedly be very politically charged trials” (UN General Assembly, 1999, para. 133). Furthermore, the commission argued that the judicial system lacked the necessary public trust that is essential to restoring justice and reconciling the differing populations throughout the nation (UN General Assembly, 1999, para. 134). Consequently, the commission believed the corruption prevalent through the Cambodian judicial system was detrimental enough to require a removed retributive process, despite the apparent costs and disadvantages of an ad hoc tribunal demonstrated previously by International Criminal Tribunals for the former Yugoslavia and for Rwanda. The coalition government at the time, led by co-prime ministers Hun Sen and Prince Ranariddh, immediately rejected the commission’s proposals, spoiling hopes for an accountable pursuit of justice (Ramji, 2000). Thus, started the next 7 years of hard-lined negotiations between the international community and the Cambodian government in establishing the tribunal that would later evolve into the Extraordinary Chambers in the Courts of Cambodia (ECCC). Meanwhile, as the victim populations of Cambodia waited patiently for accountability to be born, the leader of Khmer Rouge, Pol Pot, died in his sleep in April of 1998 (Kiernan, 2012). The death of Pol Pot reflected the normalized culture of impunity that had survived for 20 years

19 in Cambodia. ECCC negotiations, that would last 7 more years until official establishment in 2006, further perpetuated that culture. All the while, as the creation of the hybrid tribunal became the center of focus, domestic institutional reforms were ignored as corruption and power consolidation rose.

B. Extraordinary Chambers in the Courts of Cambodia

By April of 2005, the ECCC, a hybrid tribunal for the prosecution of crimes committed during the period of Democratic Kampuchea, was officially established. Headquartered in the capital city of Phnom Penh, the court is comprised of Cambodian and international judges, investigators, and prosecutors with procedure in accordance with Cambodian law. Domestic judges comprise the majority of the judges within each of the chambers (pretrial chamber, trial chamber, and supreme court chamber) (Scheffer, 2008). Despite the prevalence of domestic judges, all decisions must be a super-majority, requiring at least one international judge to affirm an order for a decision to remain standing. ECCC jurisdiction subjects to prosecution only those crimes that were committed by the senior leaders of the Khmer Rouge between 1975 and 1979 (UN, 2003). “It is understood, however, that the scope of the investigation is limited to senior leaders of Democratic Kampuchea and those who were most responsible for the crimes and serious violations” (UN, 2003, art. 5). Critically, this leaves out any crimes (whether in violation of Cambodian or international law) committed by individuals or parties either outside of the Khmer Rouge senior leadership or committed before or after the specified time frame. This means any abuses committed in the decade of civil war following the fall of the Khmer Rouge are excluded from proceedings. The subject matter of the ECCC proceedings are limited to the following international crimes: 1) genocide, 2) crimes against humanity, 3) war crimes, and 4) violations of domestic law (UN, 2003, art. 9). The maximum penalty that can be discharged by the ECCC is life in imprisonment (UN, 2003, art. 10). The death penalty is not an option for punishment. Additionally, the Cambodian government is restricted from requesting an amnesty or pardon of any individuals who may be investigated or convicted by the Court (UN, 2003, art. 11). The ECCC, thus far, has experienced a number of challenges that brings its efficacy and success as a mechanism of justice into question. These issues include a high cost, negligible outcomes, judicial impropriety and corruption, a wider culture of domestic impunity, and victim- silencing. The first trial conducted by the ECCC did not begin until 2009 (“Key Events”, n.d.)– three years following the establishment of the Court and a full 30 years following the fall of the Khmer Rouge regime. As of April 2020, a total of nine individuals have been indicted by the ECCC, of which only three have been convicted (“ECCC at a glance”, 2019; see Table 1). This gives the ECCC a conviction rate of 33%. Of the three Khmer Rouge leaders that have been convicted, one has died before the completion of his sentence (Nuon Chea). Two other charged leaders have also died before the closing of their cases (Ieng Sary and Ieng Thirith).

20

TABLE 1 Case No. Person Indictments Status of Case 001 Kaing Guek Crimes against humanity, war crimes; Convicted (2012); Eav (Duch) Sentenced to 35 years in prison Chairman of S-21 torture prison

002/01 Nuon Chea Crimes against humanity, war crimes, Convicted (2016); and genocide; Sentenced to life imprisonment; 002/02 Died in August 2019 Number two in command of Khmer Rouge leadership 002/01 Khieu Crimes against humanity, war crimes, Convicted; and Samphan genocide; Sentenced to life imprisonment 002/02 (Hem) (2018) Head of state of DK 002 Ieng Sary Crimes against humanity, war crimes, Proceedings terminated (2013); (Van) genocide Died in 2013

Number three in command of Khmer Rouge leadership 002 Ieng Thirith Crimes against humanity, war crimes, Found unfit to stand trial (2011); (Phea) genocide Died while under judicial supervision in 2015 Minister of Social Affairs 003 Meas Muth Crimes against humanity, war crimes, Pending order (since 2017) from genocide co-investigating judges on whether to send case to trial or dismiss Central Committee Member 004 Yim Tith Crimes against humanity, war crimes, Co-investigating judges conclude (Ta Tith) genocide investigation (2017); Pending appeals to pre-trial chamber Secretary of zone sectors 1, 3, 4, and 13 004/01 Ao An (Ta Crimes against humanity, war crimes Co-investigating judges file An) separate closing orders (one Central Zone Deputy Secretary dismissing the case, one pushing the case to trial) (2018); Pending trial (2020) 004/ 01 Im Chaem Crimes against humanity, war crimes Case dismissed (2018)

Secretary of Preah Net Preah District and Sector 5 Deputy Secretary

The total cost of the ECCC as of the end of 2019 amounts to $357.5 million (US) dollars (“ECCC Financial Outlook”, 2019), of which almost a quarter is funded by Cambodia itself with the remaining amount contributed by international donors. Additionally, the ECCC projects a

21 required budget of $34 million for 2020-2021 in order to progress with the three pending cases before the Court (“ECCC proposed budget”, 2020). Thus, by the end of 2021, the ECCC will have spent approximately $391 million (US) dollars. Taking into consideration the nine total indictments, this would mean each single indictment on average costs the international community and the Cambodian people an estimate of $43 million (US) dollars. The high-cost input versus the low indictment and low conviction output draws into question the efficiency and the success of the ECCC. While there is no assumption that transitional justice is supposed to be cheap or even affordable, when costs are high and output is infrequent and slow, we must begin to look at what perceived social effects are being effectuated by the mechanism in question on the targeted population. Here, the high cost of retribution can be justified if the tribunal has placed a significant role in Cambodian society. Evidence proves to the contrary. In UC Berkeley’s Cambodian population-based survey in 2008, 39% of respondents did not know of the ECCC’s existence, and 46% of respondents had only limited knowledge (Pham et al., 2009). It is critical to compare these findings to the survey’s findings regarding respondents’ attitudes towards domestic judicial systems, where only 36% of the population trusted the judicial system and 82% believed going to court required bribing the judges (Pham et al., 2009). It should be acknowledged that the outdated nature of these findings (2008) may limit their usefulness; however, something remains true from 2008 till now in 2020– the domestic judicial system has yet to undergo radical reformation and reconstruction, despite its corrupt history, while the ECCC continues to be funded at an extravagant rate. Thus, a continuation of the ECCC should require a re-examination of the forces at work in the hybrid tribunal, especially insomuch as the people of Cambodia and the international community continues to contribute millions of dollars towards the prosecution of a few. In addition to these challenges, there has been recent substantiated evidence regarding judicial bias in the form of domestic political influence on the proceedings. In 2011, it was reported that, “Current procedures do not include a mechanism to address previous complaints or to protect staff members who come forward with reports of corruption” (Nielsen, 2009). Furthermore, following reports of corruption in the ECCC, the UN Development Program (UNDP) created an audit report that documented serious concerns regarding the hiring process of national employees working within the ECCC (UNDP, 2007). The concerns were severe enough that the UNDP recommended a purge of the then-current staff and a re-evaluation of the hiring process. Adding more trouble, later two judges of the ECCC admitted on record to accepting bribes (“Human rights in Cambodia”, 2007). One judge stated, “[i]f a judge is a clever man, he can find ways to make a lot of money” (“Human rights in Cambodia”, 2007). These concerns of impartiality reflect the wider issue regarding the dependence of the ECCC on the Cambodian judicial system. Given the ECCC is a hybrid court with a majority of domestic judges, the hiring procedure is largely controlled by the Cambodian government. As discussed earlier, the judicial system incurred no substantial reform following the Khmer Rouge regime. Extensive distrust exists between the civilian population and judicial institutions. Accordingly, the Cambodian retributive mechanisms for transitional justice have been polluted with corruption starting at the top of the political hierarchy and trickling down towards foundational judicial institutions. Another concern with the Court is its restrictive jurisdiction, that enables widespread evasion of justice. Aimed at prosecuting only the senior leaders of the Khmer Rouge, hundreds of lower level leaders of the Khmer Rouge regime remain free (Lambourne, 2014). For instance,

22 current Prime Minister Hun Sen is a former mid-level Khmer Rouge cadre but remains outside the reach of the ECCC because of his exclusion from highest level of Khmer Rouge senior officials. Furthermore, violations by the regimes that came before and after the Khmer Rouge are excluded from ECCC prosecutions (Lambourne, 2004). This implicates only a few individuals for crimes that a larger group of people may have contributed to. Holding only the most senior leaders accountable normalizes impressions of impunity (pervasive domestic impunity is demonstrated and discussed later on in Section IV Part C). Thus, the question arises: if accountability is not being restored, would it be wiser to direct funding towards more accessible forms of justice? One argument that stands in favor of the ECCC is regarding the novel approach taken by the Court in allowing victims to serve as civil parties in proceedings, allowing them to receive collective and moral reparations (Herman, 2018). Civil parties are afforded the same status throughout proceedings as the prosecution and defense; civil parties can examine witnesses and are privy to the same internal documents as the other two parties (Stammel et al., 2010). It can argued that victim incorporation, with around 4000 victims participating as civil parties (Herman, 2018, p. 189), promotes a more directed system of justice, allowing the victims to control the retributive justice delivered for the atrocities they suffered. However, the ECCC has been riddled with accusations of victim-silencing. For instance, in 2009 over concerns of expediency, the Court ruled that victims could not make submissions regarding sentencing of the convicted (Herman, 2018). As Herman (2018) explains,

“Twenty-eight civil parties boycotted the week’s proceedings… The civil parties also high- lighted the fact that they received no assistance and struggled to make ends meet while Duch [indictee] was well looked after by the ECCC. Similarly, Duch’s lawyers were well paid while their civil party lawyers worked on a pro bono basis” (p. 191).

This highlights the dilemma of the ECCC, that while it presents an appearance of victim-focused justice, prosecutions built off of liberal conceptions of due process inherently must give the accused more rights in court in than victims. The accused must be afforded the chance to speak, cross examine, and have effective counsel; legal jurisprudence does not ordinarily afford victims these same rights. In another case, out of 3,866 applications, only 31 civil parties were granted participation and only 58 witnesses were called to provide testimony (Oeung, 2016). Inherently, the Court is bound by, not only legal constraints, but also purely administrative and logistical constraints. Time, resources, and costs all play a role in Court decisions about who may speak, how long they may speak for, what subject matter they may speak about. Furthermore, without scholarship investigating the efficacy of victim incorporation in ameliorating socio-economic and psychological effects on victim populations, it is unclear just how much victim participation even serves as a form of healing. Significant scholarship exists that highlights the negative repercussions of adversarial settings on victims (Katirai, 2020; Strang and Sherman, 2003; Ciorciari and Heindel, 2016). Another way in which victims were silenced by the ECCC came with the initial absence of sexual and gender-based violence prosecution by the Court. Despite headway in international law to recognize sexual violence and its gendered nature and despite evidence that sexual and gender-based violence took place during the Khmer Rouge reign (Anderson, 2004), the first indictments produced by the ECCC lacked any mention of both sexual violence and forced

23 marriages. The Court functioned under the incorrect assumption that, because the Khmer Rouge so severely restricted sexual behavior, the period in question would be relatively free of sexual and gender-based violence (Oosterveld and Sellers, 2016). Consequently, civil parties were forced to go to extreme lengths to pressure the ECCC prosecutors into investigating and charging acts of forced marriage and sexual violence (Oosterveld and Sellers, 2016). Even when the Court corrected themselves and did begin to proceed with investigations and charges of sexual and gender-based violence, the lack of an established gendered consciousness within the Court resulted in inadequate understandings of the nature and extent of sexual and gender-based violence. At first, the Court was only willing to consider rape within forced marriages, justifying this decision on the false belief that state-sanctioned rape only occurred within forced marriages. This was despite evidence suggesting that it occurred even outside of forced marriages as a mechanism of persecution (Oosterveld and Sellers, 2016), When rape was disconnected from forced marriages, the definition of rape used by the Court was incredibly narrow in nature– “the sexual penetration, however slight[,] of the vagina or anus of the victim by the penis of the perpetrator or any other object used by the perpetrator; or the mouth of the victim by the penis of the perpetrator, where such sexual penetration occurs without the consent of the victim” (“Judgment in Case 001”, 2011, para. 362 as cited in Oosterveld and Sellers, 2016, p. 336). This definition assumes a victim and a perpetrator, thereby neglecting situations in which two individuals within a forced marriage are forced to have intercourse– thereby, both individuals are victims of rape. Additionally, the definition, with its specificity to body parts, neglects how males could also suffer rape through forced intercourse with women (Oosterveld and Sellers, 2016). Moreover, the Court, while eventually handling rape and forced marriages, neglected to handle issues of “forced pregnancy, sexual slavery, forced domestic labour of a gendered nature, sexual assault against males, or sexual terrorization of the general population” (Oosterveld and Sellers, 2016, p. 349). The ECCC’s missteps in recognizing and handling sexual and gender-based violence demonstrated its inherent “hierarchical rankings of crimes… killings, starvation, and forced labour take precedence over the investigation of sexual and gender-based violence” (Oosterveld and Sellers, 2016, p. 347). Simultaneously, when the Court has made progress in recognizing sexual and gender-based violence, it did so with a limited understanding of its nature, thereby relegating situations of rape and sexual crimes as exclusively female experiences. Despite the international community’s efforts to repent for allowing the Khmer Rouge’s reign of terror followed by thirty years of impunity, the ECCC has demonstrated dubious demonstration of the delivery of justice. From a culture of evasion to sobering accounts of corruption and bribery to an expensive bill for the Cambodian people and the international community, the ECCC, which has been highlighted as the primary means of transition for Cambodia, has only served as “show trials.”

C. The State of Cambodia Forty Years Post-Khmer Rouge

To assess the efficacy of the ECCC as the primary mode of transitional justice, we must not only look at the inner workings of the ECCC machine but also examine where Cambodia stands as a country today. This is necessary because international conceptions of transitional justice promulgate a number of goals for transitional justice, as discussed in Section II Part B. For Cambodia, the goals of transitional justice, and thereby the ECCC, were specifically delegated as accountability through rule of law, reconciliation, and stability (General Assembly

24 resolution 57/228, 2003). Thus, if transitional justice mechanisms have been successful, we can expect the transitioning region in question to have accomplished such intended goals of democratization and rule of law establishment, reconciliation, and stability. To measure whether Cambodia has achieved these aims, I examine Cambodia’s current state of human security development. In 1994, the United Nations Development Programme (UNDP) published the Human Development Report, noting:

“The concept of security has for too long been interpreted narrowly: as security of territory from external aggression, or as protection of national interests in foreign policy or as global security from the threat of nuclear holocaust. It has been related more to nation-states than to people… Forgotten were the legitimate concerns of ordinary people who sought security in their daily lives” (UNDP, 1994, p. 3).

With international discourse exclusively connoting security with freedom from physical harm, the UNDP posited a more nuanced approach to conceptualizing and measuring security– one that takes a people-focused approach. Human security was termed as the concern “with how people live and breathe in a society, how freely they exercise their many choices, how much access they have to market and social opportunities– and whether they live in conflict or in peace” (UNDP, 1994, p. 23). Thus, security by this definition encompasses not only freedom from fear, but also freedom from want (Chu, 2015; UNDP, 1994, p. 24). A state of human security means that the essential needs of humans are being met, thereby allowing individuals to take care of themselves and contribute to the broader project of participatory development. Approaching security with a more holistic lens is critical because it highlights dimensions of daily life for citizens that often go unaddressed in transition periods. These dimensions are critical to unpack because, if neglected, they can engender further conflict:

“when the security of people is attacked… all nations are likely to get involved. Famines, ethnic conflicts, social disintegration, terrorism, pollution and drug trafficking are no longer isolated events” (UNDP, 1994, p. 3).

Therefore, levels of human security can be used as indicators of state stability; this in turn can aid in determining whether transitional justice practices have achieved successful post-conflict transition. Within human security comes seven different components: political, economic, personal, community, food, health, and environmental. These components can be used to measure Cambodia’s current state of human security as a product of transitional justice mechanisms. I contend that a closer examination of the political and economic dimensions will reflect the failures of the ECCC and the broader international plan for Cambodian transition at establishing democratization, rule of law, reconciliation, and peace by highlighting how critical aspects of daily life, including institutional integrity and access to social services, have been neglected in favor of the tribunal.

i. Political Security

The Human Development Report (UNDP, 1994) defines political security as the ability “to live in a society that honours basic human rights” (p. 32). Human rights, as outlined in the

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Universal Declaration of Human Rights (The United Nations, 1948), encompass the right to life and liberty, freedom of opinion and expression, freedom of assembly, freedom to work, freedom from slavery and torture, freedom from arbitrary detention, and freedom from discrimination, to name a few. Using these human rights as a framework, Freedom in the World (2019) publishes an annual global report on political and civil liberties, giving each country a freedom score from 0 (Not Free) to 100 (Free). In 2019, Freedom in the World gave Cambodia a freedom score of 26/100 (Not Free). Dissecting the score into the varying components that comprise it (political rights and civil liberties) highlights the array of human rights that have been either abused or ignored by Cambodian regime (see Table 1(A) & 1(B)).

TABLE 2

Political Rights* Score**

Free and fair elections 0/4

Right to organize into political parties 0/4

Realistic opportunity to gain power through elections 0/4

Political choice free from influence of powerful group that is not 1/4 democratically accountable (economic oligarchies, foreign powers, military, etc.)

Equality of political rights and electoral opportunities 1/4 Strong and effective safeguards against corruption 1/4

Transparency 1/4

*Scores retrieved from Freedom in the World 2019: Cambodia Report. ** Scores are awarded on a scale from 0 (smallest degree of freedom) to 4 (greatest degree of freedom).

TABLE 3

Civil Liberties* Score**

Independent judiciary 0/4 Due process 1/4 Protection from illegitimate use of physical force 1/4 Equal treatment under the law 1/4 Free and independent media 1/4

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Academic freedom from political indoctrination 2/4 Freedom of political expression without fear of surveillance or 2/4 retribution Freedom of assembly 1/4

Freedom for NGOs (particularly those engaged in human rights) 1/4

Equality of opportunity and freedom from economic exploitation 1/4

*Scores retrieved from Freedom in the World 2019: Cambodia Report. ** Scores are awarded on a scale from 0 (smallest degree of freedom) to 4 (greatest degree of freedom).

Political freedom has remained overwhelmingly weak since the end of Cambodia Civil War in the early 1990s. As discussed in Section III Part E, Cambodian politics have been dominated by Hun Sen and the CPP (successor party to the KPRP) since 1979. Today, the state of governance in Cambodia under the CPP can be categorized as a hybrid regime of competitive authoritarianism– not completely authoritarian, not completely democratic. In a state of competitive authoritarianism,

“formal democratic institutions are widely viewed as the principal means of obtaining and exercising political authority. Incumbents violate those rules so often and to such an extent, however, that the regime fails to meet conventional minimum standards of democracy… Although elections are regularly held… incumbents routinely abuse state resources, deny the opposition adequate media coverage, harass opposition candidates and their supporters, and in some cases manipulate their electoral results. Journalists, opposition politicians, and other government critics may be spied on, threatened, harassed or arrested.” (Lewitsky & Way, 2002, pp. 52-53).

It should be noted that competitive authoritarianism is not a diluted version of democracy; rather, it is a diluted version of authoritarianism for the even if the incumbent regime is able to manipulate democratic rules, they are unable to completely eliminate them (Lewitsky & Way, 2002, p. 53). Modern-day Cambodia meets such criteria. Elections are routinely held, but through surveillance, intimidation, and extensive practices of clientelism, the CPP is able to engineer each election into a victory (Un, 2005). Kitschelt and Wilkinson (2007) define clientelism as “the direct exchange of a citizen’s vote in return for direct payments or continuing access to employment, goods, and services” (p. 2). In Cambodia, rural voters comprise 85% of the total population (Un, 2005, p. 213); therefore, for any party to win an election, they must capture the votes of the rural citizenry. To accomplish this, the CPP, since 1993, has fashioned rural dependency on the party to deliver material resources by centralizing control of economic and political capital within a state apparatus that is exclusively controlled by the CPP’s ruling elite. With the economy monopolized by the CPP, rural voters are dependent on the CPP to assure jobs, infrastructure, and financial aid, thus willing to exchange their vote for what the CPP can deliver. One study by the Asia Foundation found that in 2003, “two-thirds of respondents selected a party based on its ability to provide material resources such as wells, roads, schools, ponds, and irrigation” (The Asia Foundation, 2003 cited in Un, 2005, p. 222). And in 2018, local

27 authorities threatened to withhold public services if the villagers did not vote for the CPP (“Authorities threaten”, 2018). This reliance on client-patron inducements to secure power started to lose its efficacy, however, in 2013 when opposition parties started to gain ground in local and national elections (Hughes, 2015), demonstrating that rural votes were no longer going to be completely coopted by patron-client practices. Since then, the CPP has turned more towards violence, intimidation, and state-sanctioned repression to maintain its political domination and diminish opposition influence. Just recently in 2018, Prime Minister Hun Sen and the CPP secured all 125 seats in the lower house of the parliament (the National Assembly) after the Supreme Court (controlled by the CPP) “dissolved the main opposition party” (“Cambodia”, 2019). Additionally, an amendment that passed on January 6, 2019 gave Prime Minister Hun Sen authority to control the political rights of banned opposition party members (“Cambodia”, 2019). Moreover, political dissidents are jailed, journalists and media outlets are harassed, and voters are intimidated by CPP-controlled police and military forces (Freedom in the World, 2019). Effectively, voters in Cambodia are given no meaningful political choices– contestability is nonexistent.

TABLE 4 Corruption Index Cambodia Vietnam Thailand Corruption Rank* 162/180 96/180 101/180

Corruption Score* 20/100 37/100 36/100

* Data retrieved from Transparency International. Rank indicates country’s position relative to other countries in the index. Score indicates perceived level of public corruption from 0 (highly corrupt) to 100 (very clean).

It is important to note, though, that corruption has not been limited to just the legislative bodies of Cambodia but also extends into other organs of the state, in particular the judiciary. Without an independent judiciary, there is no guarantor of human rights protection. This is because an independent judiciary is tasked with not only upholding rule of law (political and civil liberties) but also holding other organs of the government, and the individuals that occupy them, accountable. Furthermore, an independent judiciary can ensure internal stability and weaken the possibility of civil strife by mediating political conflicts through what is seen as a legitimate and fair process (Un, 2009, p. 73). As the stipulated goal of the ECCC was to bring an end to impunity and establish rule of law, we would expect such standards to infiltrate into the domestic judicial system. Cambodia’s judiciary, however, serves as a key signal that such expectations are far from being met, as the judiciary has worked to legitimize the authoritarian practices and human rights abuses of the CPP. Freedom in the World has reported,

“Judges have facilitated the government’s ability to pursue charges against a broad range of opposition politicians…Abuse by law enforcement officers and judges, including illegal detention, remains extremely common. Sham trials are frequent, while elites generally enjoy impunity. When lawyers or others criticize judges, they often face retribution” (2019).

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Under the Khmer Rouge’s reign, the judiciary (which had only recently been introduced to Cambodia by French colonial rule) was eliminated as the Khmer Rouge proceeded to execute all legal professionals and destroy all legal resources (Un, 2009). Once the Khmer Rouge fell, the pro-Vietnamese KPRP re-established a judiciary, to serve both as a presentation of legality to the watching international community but also to build their growing state apparatus. Thus, the KPRP (which later becomes the CPP) trained judiciary staff and legal professionals using Marxist-Leninists doctrines, viewing the judicial system as another tool to further party agenda (Un, 2009, p. 74). Such a judicial reconstruction led by Hun Sen has existed to this day, producing a culture of impunity for government officials. This has been buttressed by the entrenched networks of patronage and clientelism that have placed judges, attorneys and legal staff at the mercy of CPP interests. The breadth of CPP’s influence on rule of law and impunity has even reached the national judges at the ECCC. Take Cases 003 and 004 for instance. Following the French model of common law, pre- trial investigations at the ECCC are conducted not by the prosecution, but by two co- investigating judges– one international judge and one national judge. Together, they are tasked with collecting evidence and issuing a single order on whether the accused person should be indicted, or whether the case should be dismissed (“Office of co-investigating judges”, n.d.). However in 2018, for the first time in ECCC history, the co-investigating judges each issued their own separate closing orders on the accused persons– the Cambodian judge, You Bunleng, argued that neither accused individual, Meas Muth and Ao An, fell under ECCC jurisdiction and, thus, should not be tried by the ECCC (“Co-investigating judges… Ao An”, 2018; “Co- investigating judges…Meas Muth”, 2018). In contrast, the international judge, Michael Bohlander, urged the court to proceed with indictments (“Co-investigating judges… Ao An”, 2018; “Co-investigating judges…Meas Muth”, 2018). What is critical here is the parallel between Judge You Bunleng’s order to dismiss the cases and Prime Minister Hun Sen’s demands that the ECCC end prosecutions. Hun Sen claims that any more ECCC prosecutions could cause civil unrest (“Verdicts on Khmer Rouge”, 2018), yet Hun Sen himself as well as other senior members in his ruling party were midlevel Khmer Rouge cadres before defecting. It is thus feasible that Hun Sen opposes further ECCC prosecutions in fear of his own party being implicated in the future. Furthermore, Judge You Bunleng’s opposing order in stark contrast to the international judge raises doubts as to his independence from Hun Sen and the CPP’s influence and calls into question just how much impunity has been eliminated and just how much rule of law has been established. The absence of an independent judiciary has translated into absence of due process of law, no protections from illegal or arbitrary arrest/ detention, and no mechanism of redress for political and civil liberty violations by the government. Most Cambodians live in fear of repression– “torture of suspects and prisoners is frequent. The security forces are regularly accused of using excessive force against detained suspects” (Freedom in the World, 2019). Minorities, in particular those of Vietnamese descent, lack protection from legal, social, and economic discrimination. The media is often harassed and intimidated– those that aren’t are owned and operated by the CPP (Freedom in the World, 2019). These abuses have occurred despite the creation of the Cambodian Constitution in 1993 which enshrined that, “the judicial power is an independent power… [and] is the guarantor of impartiality and the protector of the citizens’ rights and liberties… No organ of the legislative or

29 executive power can exercise any judicial power” (Articles 128 & 130). As also evidenced by the earlier discussion, baseline efforts to reconstruct Cambodia through the creation of traditional liberal processes (elections, a written constitution) has not been enough to guarantee genuine political security– indicating that the hybrid tribunal as the primary means of transition has failed to deliver on its promises. In summation, examining Cambodia through the dimension of political security highlights the extensive, systematic abuse of human rights perpetuated by a regime installed during the transitional period. As funding and international attention has been streamlined into the ECCC as a mechanism of redress, Hun Sen and the CPP have continued to consolidate power, repress civil society, and maintain a culture of impunity among the ruling elite. With the stated goals of democracy, accountability, and stability, the ECCC has failed in its mandated task and shows no sign of improvement so long as the political sector continues to go unaddressed by the transitional justice paradigm.

ii. Economic Security

The UNDP (1994) prescribes economic security as having “an assured basic income– usually from productive and remunerative work, or in the last resort from some publicly financed safety net” (p. 25). Economic security works into the broader framework of human security because how of it can breed both personal violence (violence committed by an actor) and structural violence (violence as a result of inequities built into institutions) (Galtung, 2015). Given one of the most emphasized goals of transitional justice is peace consolidation, economic security can serve as an indicator of whether that has been achieved. Low economic security would highlight the potential of recurrent violence, contrasting the goal of stability stipulated by transitional justice. To analyze Cambodian economic security, we can examine two areas: its economic profile and its human development index. Moreover, to give more context to Cambodia’s current status, both areas of Cambodian economic security can be compared to relative regional rates– here, Vietnam and Thailand shall be used.

TABLE 5 Cambodia Vietnam Thailand Population 16.2 million 95.5 million 69.4 million GDP* $24.5 billion $245 billion $504.9 billion

GDP per capita* $4,360 $7,447 $19,051 Poverty headcount ratio at national 17.7% 9.8% 8.6% poverty lines (% of population)* Population vulnerable to 21.1% 5.6% 7.2% multidimensional poverty (% of population)** *Data retrieved from World Bank: Development Research Group. Data reflects most recent estimates. ** Data retrieved from United Nations Development Programme: The 2019 Global Multidimensional Poverty Index (MPI). The MPI looks at how people experience poverty in varying dimensions including, health, education, and standard of living.

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Noting where Cambodia economic profile in relation to its surrounding countries demonstrates the economic obstacles the nation still seems to face forty years post-Khmer Rouge rule. Cambodia is outperformed by its neighboring Indochinese countries in both GDP and poverty levels. Part of the problem stems from the state control of industry and economy, a legacy of the Khmer Rouge capitalized on by Hun Sen. As mentioned earlier, the ruling party today exchanges economic favors as a means of staying in power. One of the results has been that the ruling elite has amassed most of the country’s wealth through both legal means (purchase of land and privatization of natural resource industries) and illegal means (embezzlement, insider trading) (Cock, 2010). A report by Global Witness (2009) details how access to Cambodia’s natural resource industries, including oil and mining, are privately apportioned to senior officials in Hun Sen’s government. Additionally, in a span of 15 years, over 45% of land had been purchased by private interests (Global Witness, 2009, p. 5). This policy of economic monopolization has had adverse effects on the country, of which includes environmental degradation, land confiscation, and a widening disparity in the distribution of wealth. Sovachana and Beban (2019) note,

“In recent years, there has been a surge in forced displacement of rural and indigenous communities resulting from large-scale land concessions granted by the government for agribusiness, what scholars and activists term ‘land grabs.’ Since 2000, Amnesty International estimates, about 420,000 people have been affected by forced evictions to make way for development projects that are said to be in the ‘national interest’ but are invariably also very much in the business interests of senior members of the regime” (p. 26).

Basic infrastructure needs (ie. clean water, housing, health care) are neglected as the ruling elite focuses on profit maximization through liberal economic policy– free trade, resource extraction, and so-called ‘development’ (Sovachana and Beban, 2019). This economic insecurity is further demonstrated through the human development index (HDI) which reflects a country’s current economic state, not through fiscal means, but by understanding how people are doing across a variety of key dimensions. These include education, life expectancy, and inequality. As seen in Table 5, Cambodia once against is outperformed by its surrounding neighbors: it has a lower life expectancy, lower number of expected years of schooling, and higher rates of inequality. Additionally, Cambodia is one of the lowest ranked countries in terms of human development.

TABLE 6 Human Development Index (HDI)

Cambodia Vietnam Thailand

Rank* 146 118 77 Life expectancy at 69.6 75.3 76.9 birth (years)*

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Expected years of 11.3 12.7 14.7 schooling (years)*

Coefficient of human 19.9 16.2 16.7 inequality*

* Data retrieved from United Nations Development Programme: Global Human Development Indicators. HDI measures average achievement in key dimensions of human development: health, length of life, education, and standard of living.

In a study conducted by Sovachana and Beban (2019), respondents reported that the top six threats to security in Cambodia are: 1) fear of government authorities, 2) natural disaster, 3) health, 4) political instability, 5) land shortages/ land grabbing, and 6) poverty (p. 34). As such, it starts to become evident that the political and economic dimensions are not only inextricably tied to one another, but also tied to all of the other components of human security– the personal, community, food, health, and environmental. the threat of natural disaster is a byproduct of climate change, exacerbated by the political and economic manipulation of the ruling CPP. High costs of healthcare compounded with insecure incomes has left Cambodian populations fearful of the threat of illness (Sovachana and Beban, 2019). Fear of land grabbing signals the deeper issues at play including the previously mentioned use of clientelism, political abuse in a single party state, and increasing wealth disparity These dimensions of human security that demonstrate such deep-rooted problems are also the same dimensions of post-conflict Cambodia that went unaddressed by transitional justice efforts. With a focus on UNTAC’s appearance of democracy through elections and with the installation of the ECCC, transitional justice has bypassed crucial reform and reconstruction of key human security institutions.

V. A NEW VISION FOR CAMBODIAN TRANSITIONAL JUSTICE

It is evident that the transitional justice program for Cambodia, initially through the project of UNTAC and then primarily through the installation of the ECCC, has failed in achieving its goals of peace and rule of law (or justice). The ECCC itself as a mechanism for redress and retribution is riddled with challenges, from cost to corruption to victim-silencing. That aside, civil society in Cambodia is in a state of human insecurity, lacking both freedom from fear and freedom from want. The victim population still fears its government, still suffers economically and socially at hands of its government, and still has yet to see a genuine delivery of justice. This begs the question– should Cambodia, and the broader international community keep contributing to a process that has effectuated little positive change? I contend the answer is no. Instead, transitional justice for Cambodia should be re-envisioned away from retribution and toward restoration, using a three-fold plan: reconstruction, reparations, and reconciliation through nation-wide grassroots efforts, each of which are interdependent on one another to effectuate success. First, transitional justice efforts in Cambodia made a large misstep during the UNTAC phase in the early 1990s by neglecting to install a comprehensive institutional reform. Cambodian state institutions were weak even prior to the Khmer Rouge taking power– add more

32 than a decade of civil strife and the result is a state apparatus vulnerable to abuse. This is how the Hun Sen and the CPP were able to consolidate power, transforming Cambodia into a single- party, competitive-authoritarian state. Elections alone were never going to be enough to usher in democracy. Nor is the ECCC, in its indictment of only nine individuals over the span of 14 years, able to establish the necessary culture of rule of law. Instead, efforts need to be refocused on reconstructing the government. I contend three critical areas that require reform: the political sector and its bureaucracy, the judiciary, and security forces. Genuinely competitive elections need to be introduced to allow Cambodia to move away from the one-party state and toward a more representative governance. To do this, the CPP must be deprived of the sources of their power– the use of clientelism and intimidation to buy votes. The problem of clientelism can be targeted by the second fold in the reimagined transitional justice program– reparations. Specifically, one type of reparation that must exist are programs that specifically target economic structural violence. This can look like infrastructure (schools, health care, clean water), job opportunities, pensions and stipends, and grants to local authorities for community development, particularly targeting rural communities whom are most vulnerable to CPP manipulation. By removing the reliance of these communities on the CPP’s control of resources, populations become free in their political choice. These economic reparations can be funded by international donations– instead of contributing hundreds of millions of international dollars to the ECCC, donors should redirect those funds toward economic reparation programs. The problem of intimidation can be handled through judicial and security sector reforms. Through mechanisms of lustration and vetting, the judicial and security sectors need to be untangled from the CPP’s influence. As discussed in previously, part of the reason corruption infiltrates the judiciary is because the judge and legal professional salaries are so low– thus, they exchange favors for an increase in wages or economic advantage. The economic reparations program would help ameliorate this issue for both sectors. Simultaneously with vetting, the judiciary must be reconstructed around systems of due process, impartiality, and rule of law. With an independent judiciary and security force, the CPP will lose the ability to repress political opposition and intimidate voting populations. Critical to all of these efforts is the reconciliation facilitated through grassroots participation. Many of the challenges that have arisen with the current transitional justice program have been caused by ignorance of the what actually took place during the Khmer Rouge reign and what were the exact lived experiences of the victim populations. To this day, exact data regarding the death tolls of the Khmer Rouge victims are non-existent (Heuveline, 2015). That is because Cambodia has yet to produce its own comprehensive report on the Khmer Rouge or the decade-long civil war following it. To add to that, the transitional justice mechanisms, including UNTAC and the ECCC, that were constructed was a product by international actors and the ruling elite to the exclusion of local participants. To understand where the need is most crucial and where justice can be most effectuated, there must be a truth and reconciliation commission with extensive civil society participation. Only then will it be clear what has happened to whom, what grievances and harms still exist, and how to move forward in the construction, implementation, and maintenance of future transitional justice efforts. This ensures that programs going forward are actually tailored to needs and that civil society actors feel a sense of ownership over their own justice, pivoting away from the legacy of the ECCC in which “justice” was for international eyes only. From there, local

33 populations can decide what form of justice most suits them, whether it is in fact trials or whether it is more restorative practices.

VI. CONCLUSION

Cambodia has endured a tumultuous history of conflict, from colonialism to genocide and massacre to authoritarian take over. With that came more than two decades of international “amnesia”– silence over the atrocities and crimes that had taken place. And when the international community finally did speak out, an unclear, misguided vision of transitional justice appeared, marked by the romanticism of prosecution. The transitional justice program in Cambodia, thus far, has consisted of a UN administered transitional period (UNTAC), which only facilitated the appearance of free and fair elections without any accompanying institutional reform, and the ECCC, a hybrid criminal tribunal erected 30 years following the fall of the Khmer Rouge, designed to prosecute senior officials and thereby righting the wrongs of an entire genocide. What is evident both from the challenges faced by the ECCC and by contemporary political and socio-economic troubles is that the plan for transitional justice has been far from successful. Rule of law has not been achieved, as a culture of impunity dominates the country. Reconciliation remains distant, as individuals still distrust their surrounding institutions. And peace is far from guaranteed, demonstrated by widespread human insecurity. Transitional justice discourse should not be a picking between retributive or restorative justice. Rather, what is most crucial is the development of a holistic and tailored program aimed at genuine conflict and post- conflict transformation. For Cambodia, that begins with reconstruction, reparations, and local participation in truth and reconciliation commissions. These will provide the necessary seedlings in developing a comprehensive and successful transition justice program aimed at security, stability, and peace.

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