Magnum Photos

   The causeway across the moat at Angkor Wat;    
 photograph by Steve McCurry

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

Even
more important, the next trial, which will probably begin in 2011,
involves the four most senior Khmer leaders still alive: Nuon Chea,
known as Brother Number Two; Ieng Sary, who was foreign minister; his
wife, Ieng Thirith, minister for social affairs; and Khieu Samphan, who
was president of Democratic Kampuchea. Now in their late seventies and
early eighties, all four were arrested in 2007 and on September 16 were
formally charged with war crimes, crimes against humanity, genocide,
and related crimes under Cambodian laws.
While the trials have
refocused international attention on Cambodia’s dark past, little
attention has been given to how the much-watched proceedings relate to
the troubled politics of Cambodia today. Will they lead to a new era of
justice and accountability for a beleaguered people or end in another
betrayal?
Cambodia is ruled by longtime Prime
Minister Hun Sen and his Cambodian People’s Party. They govern with
absolute power and control all institutions that could challenge their
authority. Opposition political parties exist, giving the illusion of
multiparty democracy, but elections have not been fair and the
opposition no longer poses any threat to Hun Sen. The monarchy has
survived but has little influence. The freedoms of expression,
association, and assembly are severely curtailed. Human rights
organizations are intimidated, and a draft law aims to bring them under
the regime’s authority. The judiciary is controlled by the executive,
and the flawed laws that exist are selectively enforced. Hundreds of
murders and violent attacks against politicians, journalists, labor
leaders, and others critical of Hun Sen and his party remain unsolved.

The regime’s violence against political opponents has been flagrant.
In March 1997 Hun Sen’s bodyguards were clearly implicated in a grenade
attack on a peaceful rally in Cambodia’s capital, Phnom Penh, led by
opposition leader Sam Rainsy.2 Sixteen people were killed and over 140 injured, including a US
citizen. No serious inquiry was ever completed. Royalist opponents of
Hun Sen were murdered when he deposed Prime Minister Norodom Ranariddh
in a coup on July 5–6, 1997. More people were killed during the July
1998 elections, which Hun Sen won. In January 2004, the popular labor
leader Chea Vichea, an outspoken critic of the government, was shot,
one of several contract killings in Phnom Penh before and after the
July 2003 elections, carried out in broad daylight by helmeted gunmen
on motorbikes.
In October 2005, in an attempt to encourage
prosecution of these murders and other serious crimes, Peter Leuprecht,
at the time the United Nations secretary-general’s special
representative for human rights in Cambodia, issued a report tracing a
continuing and accepted practice of impunity since the start of the
1990s. However, open discussion of the report and its recommendations
was not possible in Cambodia and it was ignored.

By confronting
the crimes committed between 1975 and 1979, the Khmer Rouge trials
offer hope of breaking the pattern of impunity that has characterized
Cambodia’s recent history. But they could also allow Cambodia’s leaders
to claim a commitment to justice and the rule of law while avoiding
accountability for their own crimes and repressive practices.
Cambodia
was once one of Asia’s greatest empires. The only existing account of
life in what we now call Angkor was written by Zhou Daguan, a Chinese
envoy, after he spent almost a year there at the end of the thirteenth
century. What he saw and described was an extraordinary civilization
still at its height, the outcome of five centuries of political and
cultural continuity. His stories are taught in schools and scholars
draw on them to gain a picture of life and society in Angkor.3

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

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

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

The royalist party won the May 1993 elections.5
When Hun Sen threatened armed secession, a power-sharing arrangement
was brokered to meet his demands, resulting in an unwieldy coalition
government that he came to dominate. Cambodia became the Royal Kingdom
of Cambodia under a new constitution, and Norodom Sihanouk returned to
the throne. UNTAC left in September 1993, its departure dictated by the UN
Security Council, not by conditions in Cambodia where violence and
fighting against the Khmer Rouge, which had boycotted the elections,
continued. For the outside world, the main objective had been achieved,
namely to enable the former cold war powers to disengage from a country
in which they no longer had any interest.
The stage was set for a series of deceptions and disappointments. In 1993, the UN
Commission on Human Rights asked the secretary-general to appoint an
independent expert to serve as his special representative for human
rights in Cambodia and to establish an office in the country. The UN
office and the special representative were jointly charged with
assistance to the government, monitoring the human rights situation,
and reporting annually to the commission and UN General Assembly. This mandate, one of the strongest ever given to a UN
human rights operation, deserved support, but many governments regarded
it as too intrusive. Wary of setting precedents that might be followed
elsewhere, they gave little help, making an already difficult task
almost impossible.

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

Hun
Sen demanded that Ghai be dismissed and that the position of special
representative of the secretary-general be abolished. In the end he got
his way. Yash Ghai resigned in frustration in September 2008, and the UN
Human Rights Council, which had replaced the Commission on Human Rights
in 2006, eliminated the position. The council established instead its
own “special rapporteur,” thereby bringing this office under its direct
control. The human rights office has also not been exempt from
criticism, and Hun Sen has asked that it be closed down on several
occasions, first in 1995 and most recently when Secretary-General Ban
Ki-Moon visited Cambodia in October.
Despite the
country’s poor record on human rights, Hun Sen and his party boast that
Cambodia has the most liberal and open economy in Southeast Asia.
Economic growth has indeed been rapid since the mid-1990s, averaging 7
percent a year. But the new wealth is concentrated in Phnom Penh, a
city with its back turned on rural Cambodia, where over 80 percent of
Cambodia’s 14.6 million people live. One in three Cambodians lives
below the poverty line. Many more live just slightly above it. Most
subsist on farming tiny plots of land and by foraging.

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

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

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