Transitional Justice and Peacebuilding on the Ground: Victims and Ex-Combatants (Law, Conflict and International Relations) (25 page)
Authors: Unknown
After the withdrawal of UNTAC in September 1993 following the promulgation of the new Constitution and inauguration of the new government, UN agencies remained in the country to support reconstruction and development. In 1993, as required in the Paris Peace Agreement, a Special Representative for Human Rights was appointed by the Secretary-General, who also appointed a representative for Cambodia to serve as liaison with the domestic government, to monitor the political situation, and to report on developments relating to peace and security.
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UNTAC left behind a fragile peace, with the leaders of FUNCINPEC and the CPP, Prince Ranariddh and Hun Sen, as co-Prime Ministers. FUNCINPEC had won the election, but the CPP controlled the army, lower-level bureaucracy, and the police.
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This instability led to five coups in 1993–97, while the fighting with the Khmer Rouge continued. Although UNTAC achieved a great deal, there were missed opportunities to assist the state and economy. The weakness of the state, poverty, inequality, and bureaucratic stalemate led Michael Doyle to state in 2001 that “the peacebuilding deficit continues to shape and misshape the process of Cambodian development.”
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Institution building—particularly of the justice system, rule of law, and democratic governance—has been heavily criticized. Other peacebuilding-related activities such as rebuilding of infrastructure and support to social and economic development have been more successful.
Despite the internal turbulence, international support to Cambodia across a wide range of activities continued with more than US $5 billion in aid disbursed between 1998 and 2008.
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However, the structural problems within the country
mean that recovery in the post-conflict period is slow. Cambodia ranks 124th out of 169 countries in the 2010 Human Development Index and remains one of the poorest countries in Asia. Nonetheless, it has more than doubled its income per capita from $285 in 1997 to $593 in 2007.
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This growth has profoundly changed the economy,
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but the establishment of democratic institutions and promotion of rule of law has not resulted in a similar transformation in the civil sphere. This is a key area of attention for the UN country team, with a focus on corruption and rule of law, and good governance and the protection of human rights more broadly.
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DDR
There have been a number of attempts at DDR in Cambodia: UNTAC initially had responsibility for a DDR process in 1992, and then there were two attempts by the World Bank under the Cambodian Veterans’ Assistance Program (CVAP) in 1994–96 and in 2000–02. The Paris Peace Agreements stated that all parties, the Khmer People’s National Liberation Front (KPNLF), FUNCINPEC, CPP, and the Khmer Rouge, would demobilize 70 percent of their forces, which was aimed to be completed prior to the end of the process of registration for elections. The parties also undertook to demobilize the remaining forces after the elections.
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UNTAC aimed to regroup and canton 200,000 regular troops, disarm 420,000 combatants, and guard 300,000 weapons and 80 million rounds of ammunition. However, although the cantonment and regrouping did begin, the Khmer Rouge refused to cooperate and began fighting again. As a result, only 36,000 troops were demobilized by the end of the program in May 1992 and the Secretary-General reported to the Security Council that the cantonment, disarmament, and demobilization process had been suspended.
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This first DDR process ceased when the Khmer Rouge withdrew from the peace process in 1992.
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FUNCINPEC, KPNLF, and the CPP formed a single army, the Royal Cambodian Armed Forces (RCAF) in 1993. Immediately after the elections, 20,000 FUNCINPEC and KPNLF soldiers were integrated into RCAF, as well as defecting Khmer Rouge soldiers.
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The integration process was highly unsuccessful, with the different units suspicious of each other and a general lack of discipline in the military.
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This meant that a second phase of DDR was needed to lower the number of RCAF forces, which were then estimated at 155,000. This took the form of CVAP, which began to be prepared by the World Bank and the government from 1995. It focused on 40,000 RCAF and 3,000 Khmer Rouge soldiers and aimed at providing assistance to the disabled, the sick, and the spouses of deceased soldiers.
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However, this first version of CVAP was never implemented due to political uncertainty as tension mounted in 1995–96 between CPP and FUNCINPEC. This culminated in the successful 1997 coup, with one Cambodian general quoted as stating that “recruitment was more important for stability than demobilization.”
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A second attempt at CVAP, and the third round of DDR, started in 1999 with the objective of demobilizing 30,000 soldiers and also contributing to the
reallocation of budget to the social sectors.
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At that point military spending was 40 percent of the country’s total budget. The project was designed with two phases of discharge and demobilization, with 15,000 soldiers in each phase. Some 80 percent of combatants in the first phase were to be made up of soldiers above retirement age, ill, or disabled. In the second phase, a higher proportion of healthy and below-retirement-age soldiers were to be included. The World Bank stated that “an unintentional consequence of the Paris Peace Agreement … was to encourage all factions to integrate as many of their respective combatants as possible within the RCAF to preserve their respective military power and to leverage their respective political power.”
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This obviously ran counter to the demobilization attempts of UNTAC and explained why RCAF numbers were so high. By the end of the project, only 15,000 soldiers had been successfully demobilized and received reinsertion and reintegration packages.
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CVAP ended abruptly, with the second phase not yet initiated after the World Bank found procurement irregularities, and the project closed on 31 December 2004.
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It was an acrimonious end to the project with the government refusing to work with the World Bank on future demobilization.
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The three rounds of attempted DDR left RCAF numbers still high, at around 110,000.
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International donors and actors also regarded security sector reform (SSR) as vital to peacebuilding in Cambodia and as such it is inextricably linked with DDR. Links between the military and the CPP were regarded as one of the biggest problems with democratization in Cambodia, and in addition the RCAF consumed over 50 percent of the national budget.
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The demobilization program in Cambodia was one part of downsizing the military spending and redirecting it towards social spending.
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Further to this, an important focus for SSR was governance within the military. This reflects the broader challenges facing good governance in Cambodia as a whole. Patronage networks, relying on informal relationships and material inducements, are the basis of Cambodian politics and public life and have a broad impact in terms of corruption and limiting genuine political participation.
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The Royal Government of Cambodia (RGC) tries to demonstrate that democratic principles and civil liberties are upheld in order to ensure continuing international support, but political violence and politics based on personal networks and corruption persist.
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This political and social context makes it particularly hard to institutionalize formal rules within the military. There was no associated program along with the DDR program to improve military accountability, leading to the criticism that “emphasis has been placed on reducing its size and political influence without the groundwork being laid for cost effectiveness and greater accountability.”
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The lack of progress in institutionalizing integrity and professionalism facilitated illegal activity and a situation where the primary mission of the army and police was to protect their political patrons and ensure economic survival.
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This lack of accountability accorded to the security forces is demonstrated by the fact that the RCAF, military police, and police are heavily implicated in illegal logging in the country.
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Global Witness alleges that RCAF units carry out illegal logging operations in order to enrich their commanders, including in protected areas.
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RCAF and the police are able to engage in other illegal activities, including trafficking in drugs, arms, illegal immigrants, and the sex trade.
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The fact that the army and police are able to engage in illegal activities due to “impunity and protection granted to them by top political and military leaders” demonstrates the fundamental structural problems in carrying out any SSR in Cambodia.
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The absence of accountability and democratic governance in the security sector mirrors many of the problems of carrying out DDR where there is little political will and reliance on patronage, rather than strong democratic institutions.
DDR, Amnesties, and Transitional Justice
There had been few attempts at justice for Khmer Rouge perpetrators before the establishment of the ECCC. The Vietnamese-backed government punished a number of Khmer Rouge foot-soldiers, although the total number is not known.
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The attitude of the new government elected after the peace process was that those who defected were welcomed and those captured would have to undergo re-education.
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The priority was reconciliation and stability and so there was little concern with accountability. In the 1990s, neither FUNCINPEC nor the CPP wished to push for trials since there was competition between them to attract defectors to their parties.
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Instead, there was a focus on amnesty in order to encourage defections. The Cambodian amnesties were primarily put into place to weaken the Khmer Rouge and provided no accountability. Neither did they provide benefits to victims or provide information regarding the crimes of the defectors.
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In the words of Sok An, Deputy Prime Minister:
The “win-win” policy initiated … five facets: “divide, isolate, finish, integrate and develop,” in which the Khmer Rouge political and military structure was ended. Those Khmer Rouge who defected were assured of their physical safety and survival, the right to work and to carry out their professions, and the security of their property.
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The first amnesty was put into place after the Paris Peace Agreement and renewal of conflict by the Khmer Rouge. As part of the approach of “political reconciliation,” the RGC passed a law in 1994 to outlaw the Khmer Rouge with a six-month amnesty period.
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Under Article 5 of the law, a six-month amnesty was provided for those Khmer Rouge who defected during this period, allowing them “to return to live under the authority in the Royal Government of Cambodia, without facing punishment for crimes which they have committed.”
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Under Article 6, it excluded “leaders” of the Khmer Rouge.
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The King was also allowed to give royal pardon or amnesty under Article 7.
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During the six-month amnesty period there were 7,000 defections (there had previously been 3,000 in total in 1992–94).
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The government extended the amnesty period indefinitely and committed to the protection of everyone who defected. This can be classed as a “non-self amnesty,” given by a state to benefit its opponents as an incentive to finish fighting.
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However, 2,970 Khmer Rouge defectors were given positions within the RCAF and returned to the conflict.
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Even high-profile commanders were given positions in RCAF with punishment set aside to encourage defections.
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Therefore amnesties under the 1994 law ensured that there were thousands of Khmer Rouge integrated into the RCAF, but there was little vetting done, affecting the potential for successful SSR. The lack of understanding regarding vetting is shown by one RCAF general, who claimed that the Khmer Rouge could
only
be deputies and could not be in command of armed units.
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Unfortunately this culture of impunity in the security forces continues to the present day with claims that members and units of RCAF have been implicated in gross human rights violations dating from the coup in 1997 and ongoing abuses since then.
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With ongoing widespread impunity, a vetting process for previous crimes would have been extremely challenging to implement.
Although the 1994 amnesty excluded “leaders,” a later royal decree granted both an amnesty and pardon to Ieng Sary, Vice-Prime Minister of the Khmer Rouge. In 1979, Sary and Pol Pot, leader of the Khmer Rouge, had been found guilty of genocide
in absentia
in what has widely been considered a show trial that failed to follow due process.
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Sary was given a pardon in September 1996 both for the death sentence that he received at this trial and for any penalties stipulated under the 1994 law outlawing the Khmer Rouge.
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This was crucial in the final collapse of the Khmer Rouge. The CPP expected all Khmer Rouge to join the party and consolidate their power over FUNCINPEC. Prime Minister Hun Sen, for his part, wanted the credit for defeating the Khmer Rouge. This pardon was considered necessary for the peace process despite outrage from the international community and human rights groups. The King sent a letter to Amnesty International stating that the government would support the judgment of any future tribunal that would try Ieng Sary or other Khmer Rouge leaders.
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The amnesty did not appear to provide any protection to Sary for criminal acts that he may have committed after the trial and before 1996.
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This led to a further 3,000 defections and in 1996 Ieng Sary passed official control of 4,400 combatants to the government.
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