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Transitional Justice and Political
Reconciliation in Cambodia
35
Transitional Justice and Political Reconciliation
Transitional Justice and Political
Reconciliation in Cambodia
___________________________
Chum Chandarin
National University of Public Service, Budapest, Hungary
chandarinchum@gmail.com
Abstract
Transitional justice provides inconclusive accounts of the
relationship between its many mechanisms, including trials, truth
commissions, amnesty and traditional practices, and reconciliation.
If the goal of justice is to bring peace and democracy, then political
reconciliation should be the main focus along with the tribunal
process. Using Cambodia as a case study, this paper examines the
attempt to deal with the country's past atrocities and argues that
whether it is in the form of tribunals or compromises, little has been
contributing to building political reconciliation among the Cambodian
political factions. Guided by Murphy’s theoretical framework and
the autoethnographic approach, this study reveals that the political
identity with which each political group has labeled each other has
undermined social and moral conditions, threatening the rule of law,
political trust, and relational capabilities that are necessary for peace
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and democracy. This paper also uses current surveys of Cambodia’s
younger generation to reveal the prioritized process along with the
tribunal that the Extraordinary Chambers in the Courts of Cambodia
is processing.
Keywords: Cambodia, Khmer factions, political reconciliation,
prioritized policies, transitional justice
Introduction
The Khmer Rouge (KR) regime has been vanquished for nearly
four decades, but its legacy remains contentious in Cambodian
politics. Previously, scholars debated about the recognition accorded
by the United Nations (UN) to the KR regime, the Paris Peace
Agreement where the regime was included among other Khmer
factions, and the failure of United Nations Transitional Authority in
Cambodia (UNTAC) to disarm the KR, allowing it to further disrupt
Cambodian politics (see for example in Lizee, 1997; Peang-Meth,
1997; Roberts, 2001). Recent discussion is focused on the challenges
of the KR Tribunal known as the Extraordinary Chambers in the Courts
of Cambodia (ECCC). While some see the important role of the ECCC
in bringing peace, strengthening the rule of law, and reconciling
the nation, others question the necessity of the tribunal. From the
beginning, the ECCC has been seen as a failure for the victims as
it lacks the willingness to uphold justice due to the compromised
agreement that allows Hun Sen’s Cambodian People’s Party (CPP)
and his weak and corrupt institutions to dominate and run the court
over its international counterpart (Stensrud, 2006; Ainley, 2014). It
is also suggested that the lengthy process of the tribunal that is
“much longer and more costly than necessary” not be a “model
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Transitional Justice and Political Reconciliation
to be cloned” (Ciorciari & Heindel, 2014, pp. 379, 437). And that
the UN should withdraw its support as the ECCC is merely political
and awed and should not be focused much on the legalistic ways
(Luftglass, 2004; McCargo, 2011; McCargo, 2015). However, besides
the challenges it faces, the tribunal contributes at least a little
justice, which is better than none (Lambourne, 2014), and provides
platforms for discussions, interventions, and future hopes (UN, 2013).
Although there is abundant scholarship about the KR and
its tribunals, little focuses on political reconciliation. What have we
learned from political reconciliation after the atrocities in Cambodia?
Have the Khmer Rouge tribunals cultivated political reconciliation in
Cambodian politics? This paper attempts to address these questions
by examining the political reconciliation process pursued in Cambodia
after the atrocities. The core argument is that, despite many attempts
to deal with the KR in either trials or compromises, little has been
attempted to build political relationships among the Khmer political
groups. In addition, it indicates that younger Cambodians prefer
another measure along with the current tribunal process. The
analysis of this political reconciliation provides extra accounts of
what happened and is currently happening in Cambodian politics
and helps to build a case contributing to studies of transitional justice
in general and, more particularly, on building political relationships
in a post-conict society like Cambodia. With regards to transitional
justice studies and political relationships, insights gained from this
study respond to the need to understand the nature of conicts,
processes pursued to reconcile political relationships, and the
prioritization of types of relationships that need to be repaired and
transformed.
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This article rst introduces the concept of transitional justice in
relation to political reconciliation. Following Murphy (2010), political
reconciliation refers to the building of a political relationship that
was usually destroyed during the period of atrocity. Murphy’s (2010)
theoretical framework is used to explore and analyze the political
relationship in Cambodia to understand the nature of Cambodian
conicts and processes pursued to repair the relationships. This paper
also seeks the perceptions of Cambodia’s younger generation in order
to prioritize the building of relationships. Finally, it substantiates the
claim that the tribunals have made little contribution to political
reconciliation with reection to contemporary Cambodian politics.
Transitional justice and political reconciliation
Transitional justice is dened as “the conception of justice
associated with periods of political change, characterized by legal
responses to confront the wrongdoings of repressive predecessor
regimes” (Teitel, 2014, p. 49). The idea, however, is not new as is
illustrated in cases from Athens to France centuries ago (see Elster,
2004). It has also been conceptualized and practiced differently from
the Nuremberg and Tokyo trials, the International Criminal Tribunals
for Rwanda (ICTR) and former Yugoslavia (ICTY), to the special court
for Sierra Leone (SCSL). However, literature on transitional justice
provides “inconclusive” accounts of the relationship between the
many mechanisms that include trials, truth commissions, amnesty
and traditional practices, and reconciliation (Skaar, 2013, pp. 54-103).
Assessing reconciliation as “forgiveness,” “the creation and
stabilization of normative expectations and trust,” “a political value,”
39
Transitional Justice and Political Reconciliation
and the “constituting of a political community,” Colleen Murphy (2010,
pp. 8-9) claims such conceptions are incomplete and the abstractness
of the methodology used to analyze them faces and is constrained
by limitations. According to her, during the period of atrocities, the
relationships between political groups is damaged, and it is necessary
to repair such relationships so that there will be a healthy society
that could be conducive to peace and democracy. To her, “political
reconciliation” is the process of rebuilding this “political relationship”
which is usually destroyed during conicts and under repressive
regimes; thus, the aim of processes of political reconciliation is to
“cultivate political relationships premised on reciprocity and respect
for moral agency” (Murphy, 2010, pp. 1, 180). These two aspects form
strong “social and moral conditions”, a basis to deal with any constraint
and support the three dimensions of political reconciliation: the rule
of law, political trust, and relational and basic capabilities (Murphy,
2010, pp. 130-134). There are also direct and indirect conditions to
the three dimensions. For indirect conditions, it is necessary to create
hope and realize the need to repair the relationships among political
groups. For the rule of law, there is a need for an “ongoing cooperative
activity between citizens and ofcials,” an agreement “between law
and informal social practices,” the “legal decency and good judgment
of ofcials,” and the “faith in the law” that citizens have (Murphy,
2010, pp. 134-135). For political trust, groups within the society have
to develop an attitude that each is willing to talk and be open so that
each can see the others as “competent, lacking ill will, and decent.”
This view generates “trust responsiveness,” but the responsiveness
has to be transparent so that there is no “risk of losing good opinion
of another.” Eliminating and reforming all forms of “unjust action or
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structures” that deteriorate the capability to be respected, recognized
as a political member, an effective participant in social and political life,
and able to function in such a way that is necessary to survive and to
escape poverty, are also indirect conditions contributing to relational
and basic capabilities. For direct contributions, reforming and enforcing
the declared rule of law is considered as a step toward building political
relationships in the rule of law dimension. Transforming the “way in
which citizens and ofcials view and respond to each other’s demands”
is a direct process to build political trust. To contribute directly to basic
and relational capabilities, it is crucial to create mechanisms to address
psychological and other healthcare, education and training, and social
security services and support.
Murphy provides a signicant theoretical framework to
understand the challenges and opportunities for the rule of law,
political trust, and relational capabilities to be examined and built
within the whole society. This study will use Murphy’s theoretical
framework to understand and analyze the political reconciliation
process pursued in Cambodia after the fall of the Khmer Rouge regime.1
The Methodology
Guided by Murphy’s framework, this analysis also uses the
autoethnographic approach in that the writer is embracing the events
and unpacking them (see Brigg & Bleiker, 2010). Although most
research approaches require the researchers to distance themselves
1 I do not attempt to test the theory in particular, but I employ Murphy’s theoretical
framework to understand and explore political reconciliation pursued in Cambodia un-
der the assumption that the Khmer Rouge tribunal is not sufcient to build a political
relationship within political groups in Cambodia; thus, it is less contributive to political
reconciliation.
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Transitional Justice and Political Reconciliation
from the research topic so that the outcome is perceived to be
more scientic, this paper situates itself with the important role
of current autoehtnographic studies and ethical considerations in
international relations and political science (see e.g., in Dauphinee
2010, 2013; Doty, 2010; Neumann & Neumann, 2015), in which the
researcher engages himself and voices the concerns that he thinks
are important sources of insight. As a child born from a survivor
family in the KR regime, the author spent his childhood in one of
the refugee camps from 1981 to 1992 and was then repatriated in
1993 to Cambodia where he has spent the remainder of his life
until the present. Besides spending more than ten years teaching
graduate and undergraduate classes, he has worked with a number
of non-governmental organizations and a political party dealing with
community development and capacity building. Thus, experiences,
values, and beliefs will most certainly inuence the interpretation.
This article is also informed by a survey conducted with
Cambodian students (5 universities in Phnom Penh, 1 university in
Siem Reap, 1 university and 1 high school in Kompong Cham) from
October to December 2016 to seek the prioritization of the political
reconciliation process.2 Table 1 describes the basic characteristics
of the respondents. The data from 994 participants have been
collected anonymously and with their consent. The ndings from
this survey, however, are not aimed to represent Cambodian young
people in general. Instead, it is taken as indicative to suggest what
should be considered important along with the Cambodian tribunal.
2 The survey was a part of another project studying the respondents’ knowledge of Khmer
Rouge regime and their attitudes toward the regime. The research used a survey of 38
questions and MAXQDA12 was used to analyse both of the qualitative and quantitative
data.
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Murphy (2010) argues such information is necessary for policy
makers to consider when attempting to build political relationships.
One limitation of this article is that it lacks input from Cambodian
politicians, who are the main actors in the reconciliation process.
Future research should focus on this group.
Table 1. Respondents’ demographic characteristics
*Numbers in brackets are the valid percentages.
Gender Age Group Education
Level
Where from Currently Stay Occupation
F=489
(49.2)*
M=479
(48.2)
N/A=26
(2.6)
n=994
(100)
18-25=634
(63.8)
26-37=217
(21.8)
Under
18=141
(14.2)
Over37=2
(0.2)
n=994
Master=126
(12.7)
Bachelor=694
(69.8)
High
school=174
(17.5)
n=994
PP=272 (27.5)
K.Cham=263 (26.6)
Kandal=102 (10.3)
Takeo=53 (5.3)
PreyVeng=55 (5.6)
K.Thom=43 (4.3)
Kompot=33 (3.3)
SiemReap=23 (2.3)
B.Bang=29 (2.9)
K.Speu=24 (2.4)
Pursat=13 (1.3)
P.Sihanouk=10 (1)
K.Chhnang=10 (1)
B.Meanchey=16 (1.6)
Kratie=11 (1.1)
Tb.Khmom=8 (0.8)
SvayRieng=13 (1.3)
P.Vihear=5 (0.5)
Kohkong=4 (0.4)
StungTreng=2 (0.2)
M.Kiri=1 (0.1)
n=990
PP=702 (70.6)
K.Cham=160 (16.1)
Kandal=31 (3.1)
SiemReap=18 (1.8)
K.Thom=9 (0.9)
Takeo=7 (0.7)
P.Sihanouk=5 (0.5)
K.Speu=4 (0.4)
SvayRieng=4 (0.4)
PreyVeng=5 (0.5)
K.Chhnang=3 (0.3)
B.Bang=3 (0.3)
Pursat=2 (0.2)
B.Meanchey=3 (0.3)
O.Meanchey=2 (0.2)
Kompot=1 (0.1)
N/A=35 (3.5)
n=994
Student=773
(77.9)
Government
Sta=47 (4.7)
NGO=26
(2.6)
Private com-
pany=96 (9.6)
Teacher=52
(5.2)
n=994
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Transitional Justice and Political Reconciliation
The Cambodian tribunals: building political
relationships?
Following Murphy’s framework, if they aim to politically
reconcile, they will build political trust, respect the rule of law, and
improve relational capabilities. Before analyzing these propositions,
we need to examine how each group treats each other, as this will
be signicant grounds for the analysis showing if they are committed
to xing their relationships through the trials and compromise. Four
signicant political groups have been identied since the Khmer
Rouge (KR) fell in 1979: the KR, the two non-communist factions, and
the Vietnamese-installed group. The treatments and relationships
are divided into four phases.
Phase 1: The People’s Republic of Kampuchea and the
Khmer Rouge
First, with the help of Vietnam, the People’s Republic of
Kampuchea (PRK), whose members were also former Khmer Rouge
cadres, ousted the KR from power and held a revolutionary tribunal
against Pol Pot and Ieng Sary in August 1979. After ve days of
deliberation, the two were both found guilty of genocide. They were
sentenced to death in absentia. A museum of genocide, “resembling
the Holocaust memorials” was also created (Chandler, 2008,
pp. 360-361). In addition to this, the PRK has commemorated every 20
May, since 1983, the “Day of Anger” where “selected survivors and
PRK ofcials” come to “recall their sufferings” during the KR regime
(Chandler, 2008, p. 362). They do not only express their sorrow but
also condemn and “vent their anger” toward Pol Pot as well as
the “American imperialist” and “Chinese expansionist”(UPI, 1984).
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Meanwhile, with recognition from the United Nations, the KR and its
remnant forces were still present along Cambodia’s western border
with Thailand and, additionally, were receiving support from their
friends.
Seeing itself as a liberator and Cambodia’s savior from genocide,
it is likely that the PRK brought the KR to trial in order to show the
world its commitment to the rule of law, however, the international
community described it as a show trial. It is argued that the trial of
the two men was politically used to distinguish the new PRK regime
from the KR and more importantly to disqualify the KR from a UN
seat. The commemoration is also seen as a tool for political and
propaganda purposes (Guillou, 2013). Since this commemoration was
not popular among citizens in general, it was replaced by a less
regressive ceremony known as the “Day of Remembrance” under the
sponsorship of the Cambodian People’s Party (CPP). This annual event
would be celebrated under the CPP’s chairman or senior members.
People would gather to listen to a statement and watch a show that
vividly recalls what life was like during the KR’s period. This would
reinforce how gratitude to the CPP’s leadership and the Vietnamese
soldiers should never be forgotten. Buddhist ceremonies would also be
held at museums like Toul Sleng and Choeng Ek, where skeletons and
skulls piled there have been described as a political tool to promote
intense dislike for the KR regime.
This rst treatment from PRK to the KR is understandably
inuenced by the politics of the Cold War and resentment that is
deeply rooted within their origin. In retrospect, the KR originated
from the Cambodian communist party known as the People’s
Revolutionary Party of Kampuchea (PRPK) or the Kampuchean
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People Revolutionary Party (KPRP), founded in 1951 under the
endowment and inspiration from the Indochinese Communist Party
(ICP) in Vietnam. Pol Pot changed this name to Communist Party
of Kampuchea (CPK) in September 1966 in an attempt to “lessen
Vietnamese inuence and strengthen relations with China” (Dy,
2007, p. 9). Instruction is also given to mark 1960 as the birth of
the party rather than 1951 so that there will be a “clean break”
from the ICP (Chandler, 1993, p. 264). Racial resentment over the
Vietnamese divides the communist brothers into two rivalry groups,
one of which is supported by China and the other by Vietnam. The
conict between the two sides was intense between 1977-1978
when people from the Eastern Zone, accused of having “Cambodian
bodies and Vietnamese minds,” were brutally executed (Chandler,
1993, p. 271). Former KR comrades Heng Samrin and Chea Sim,
who were the PRK’s head, escaped from the slaughter to Vietnam
and sought assistance from Hanoi. After the fall of the KR, the US
worked together with China to support the KR and ensure that the
Soviet Union and its close alliance with Vietnam could not control
Cambodia. As Kissinger notes to Beijing: “The Chinese want to use
Cambodia to balance off Vietnam…We don’t like Cambodia, for the
government in many ways is worse than Vietnam, but we would like
it to be independent. We don’t discourage Thailand or China from
drawing closer to Cambodia” (Kiernan, 2002, p. 487). This is without
a doubt why the KR still had their seat in the UN.
Phase 2. The Non-communist and Khmer Rouge
Besides the KR, there are two other non-communist forces
that kept ghting against both the KR and PRK in the 1980s along the
Cambodian-Thai border. These were the National United Front for
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an Independent, Neutral, Peaceful, and Cooperative Cambodia with
its French acronym FUNCINPEC led by Prince Norodom Sihanouk,
and the Khmer People’s National Liberation Front (KPNLF) led by
the Republican Son Sann. These two groups formed a Coalition of
Government of Democratic Kampuchea (CGDK) under an agreement
signed in Kuala Lampur on 22 June 1982.
This second deal with the KR marked signicant compromise
between the Cambodian political groups, yet behind the facade of
cooperation, the relationship was fragile. Although with a different
legacy, the royalist FUNCINPEC and the republican KPNLF cooperated
well with each other, as they had similar goals. These goals were to
get rid of the Vietnamese-installed government and to prevent the
return of the KR genocide in Cambodia. Together they advocated
for “liberal democracy,” held “the same national ag,” wore “the
same uniform,” and received “the same military training” (Peang-
Meth, 1992, p. 180). However, each realized that the relationship
with the KR would downgrade their popularity among Cambodians.
They still considered the KR as the enemy and always sought to
eliminate it from the political arena. Kiernan (2002, p. 488) describes
the relationship as “neither a coalition, nor a government, nor
democratic, nor in Cambodia.” The cooperation with the KR, though,
was very necessary for military and nancial assistance since the
KR was the only legitimate government recognized by the UN, and
therefore eligible to receive any aid from foreign countries.
Phase 3. The Non-communist, State of Cambodia (former
PRK), and Khmer Rouge
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Transitional Justice and Political Reconciliation
Another major breakthrough in Cambodian politics happened
when the four ghting factions sat at one table and signed a peace
agreement in Paris in 1991, witnessed by another eighteen interested
foreign countries.3
This was the third attempt made by all conicting parties
together, to end the decades of Cambodian civil war. According to
the deal, a transitional government (Supreme National Council) was
founded and would work with the United Nations Transitional Authority
in Cambodia (UNTAC). The agreement held all factions to a cease-re
and required a disarmament. Refugees living along Khmer-Thai border
had to be repatriated and a national election would be held in May
1993 under UNTAC supervision. Yet, the KR and the SOC continued to
ght each other along the Cambodian border. As noted by Peang-Meth
(1992, p. 35), a former senior ofcer from the KPNLF, the ceasere
agreement was signed but was not respected and “armed ghting
in Cambodia has never stopped.” As required by the peace accord,
Vietnam had to withdraw its troops from Cambodia and this would
make SOC vulnerable, as its troop would not be able to compete with
the other three united forces. The KR was suspicious of the Vietnamese
troops’ transformation into SOC forces. This suspicion was reasonable
as the CIA’s de-classied les, conrm (Wright, 2017).
Sihanouk also
expresses his discontent and wishes to bring the KR to trial. In one public
speech in Phnom Penh, before any of his SNC members had arrived,
Sihanouk talks to the crowd: “In Buddhism, we have to forgive, but we
can never forget what the Khmer Rouge did to the Cambodian people”
3 For a comprehensive analysis of the agreement and its background see Steven R. Ratner,
“The Cambodia Settlement Agreements,” The American Journal of International Law,
Vol. 87, no. 1 (1993), pp. 1-41.
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(Peang-Meth, 1992, p. 35). The bloody assault on the KR’s leader Khieu
Samphan, when he was rst invited by Hun Sen to Phnom Penh in
1991, alienated the KR, even more, from the political stage. With this
incident, the suspicion of Vietnamese forces, and the realization that
it could not compete in the election, the KR decided to leave the
peace agreement, and refused to participate in the national election.
They continued to cause troubles along the Khmer-Thai border by
killing, kidnapping, and torturing innocent Cambodians and foreigners
until the agreement was nally dissolved in 1998.
Phase 4: The elected government and the Khmer Rouge
Finally, a tribunal known as the Extraordinary Chamber in
the Courts of Cambodia (ECCC) was set up after time-consuming
negotiations between the Royal Government of Cambodia and the
UN. From the beginning, the ECCC faced many challenges. It was
believed that local and international politics contributed to these
challenges. In the beginning, the Cambodian First Prime Minister
Prince Norodom Ranariddh and Second Prime Minister Hun Sen, sent
a letter requesting the UN’s assistance in bringing the KR leaders to
trial. According to the letter, Cambodia wanted the same assistance
as in the ICTR and the ICTY. However, after the successful coup in
July 1997, Hun Sen changed his mind. It was most likely that the
idea of seeking UN assistance had been a political maneuver by both
rival parties, the CPP led by Hun Sen and the FUNCINPEC led by
Prince Ranariddh, to recruit the remaining KR forces (estimated to be
5,000-10,000) to their respective armed forces. Both prime ministers,
in the name of peace and national reconciliation, requested that
the King grant amnesty to Ieng Sary in 1996 to protect him from
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any accusation relating to earlier times. However, the real purpose,
as claimed by Hun Sen, was to encourage more defections from
the Khmer Rouge. The recruitment and mobilization of armed
forces from both parties created severe tension in the coalition
government. After the coup in 1997, while Hun Sen’s government
was under severe criticism, the tribunal negotiation with the UN was
resumed. It was believed that Hun Sen used this to divert attention
from the coup. Furthermore, the inuential role of China and the US
at the UN Security Council could not be overlooked, as they were
also inuencing actors in the formation of the ECCC.
One does not need to describe how the rule of law, political
trust, and relational capabilities were damaged during the Pol Pot’s
barbaric genocide era. It is generally agreed that these relational
dimensions have to be rebuilt. However, since the KR has been
overthrown, subsequent political groups determine and plan different
ways of relating to it, which this paper argues is not for the pursuit of
political reconciliation. Whether or not each group attempts to build
a robust political relationship, we need to analyze the direct and
indirect conditions as well as constraints, contributing to the process
of the political reconciliation in the four phases described above.
Indirect contributions: hope and acknowledgment to repair
Is there hope and acknowledgment to repair the relationship
between the rival parties in Cambodia? As claimed, “Hope” has
a “critical role in facilitating conditions that enable the general
transformation of relationships” (Murphy, 2010, p. 125). Without it,
conicting parties do not have a shared desire and vision to be part
of the same society, and to stop committing violence against each
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other. Hope was absent in the rst relationship between the KR and
the PRK. The KR trial at that time was not legitimate internationally.
The trial and memorial sites were for hate and revenge purposes
rather than for a shared hope to live together. The two lived in
a different world, separated by the Cold War masters, and they
viewed each other as an enemy that needed to be destroyed. Hope
continued to be absent from the two noncommunist groups and the
KR. Of course, the two noncommunist groups, which later formed
the coalition party—FUNCINPEC and the Buddhist Liberal Democratic
Party (BLDP) after 1993 election, shared the same vision and ideology.
However, their relationship between the KR in the second coalition
phase was merely for nancial and military aid to mobilize their
troops against the PRK. The KR was also forced to join the two from
the foreign countries. It did not seem to have any better choice.
Hope was also undermined in the third attempt as the KR decided to
leave the peace accord and continue to ght along the border. With
the amnesty granted to Ieng Sary in the fourth phase, one may see
his defection with his army of about 3,000 to Hun Sen’s CPP in 1996
as part of a shared hope for peace. Yet, this was a myth. Ieng Sary
was still controlling his lucrative Pailin (a western province) where he
continued earning money from logging and gem mining. Ieng Sary’s
defection even deteriorated political conict among the coalition
government the FUNCINPEC and the CPP (Woods, 1997). The deal
with him and the CPP was mere corruption (Biddulpha, 2014). The
Cambodian tribunal, the ECCC, is not the result of the hope that
both antagonized groups had agreed to repair in the relationship.
It was rather, inuenced by the international factors. Also, it is the
result of the global norm, where the violation of human rights is no
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Transitional Justice and Political Reconciliation
longer tolerated and local political legitimacy is being questioned,
that the hybrid tribunal is set up (Bonacker, Form & Pfeiffer, 2011).
To be able to accept that relationships need to be xed
is also another indirect contribution to the political reconciliation
process; thus, counter “denial” is necessary (Murphy, 2010, p. 128).
Following sociologist Stanely Cohen, Murphy (2010) outlines three
forms of denial (literal, interpretive, and implicatory), and strategies
to counter them. “Ofcial fact-nding” is one strategy to counter
literal and interpretive denials and “memorialization or apology”
may counter the implicatory denial. From the rst to the third phase
of the relationship, the KR never accepted that they had committed
serious crimes. They attributed the problem to the Vietnamese
and the former PRK (now the CPP) who are currently leading the
government and aligning themselves with the Vietnamese. A formal
truth commission was absent in the fourth phase. The truth behind
the genocide and memorial sites remains controversial. The ECCC
has investigated four cases so far. Case 001 with Duch, case 002
with Khieu Samphan and Noun Chea, Case 003 with Meas Muth,
and case 004 with Yim Tith. All were found guilty of crimes they
had committed but none accepted any responsibility. Only Duch
emotionally accepted the fact that he had killed people and asked
for forgiveness, however he claimed not to be the main person
responsible, as he was just following orders. Noun Chea had always
requested the court to bring the current CPP’s senior leaders in
and question them about their involvement, but none has yet to
appear in front of thecourt. The opposition party criticized Hun Sen
as a former KR commander who helped the Vietnamese to invade
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Cambodia.They questioned (omit 'about') the victory of the PRK on
7 January 1979 and the skulls in the memorial sites during a political
campaign in 2013. As a result, the National Assembly under Hun
Sen’s direction passed the Law on Denial of Crimes Committed
during the Khmer Rouge Regime (1975-1979). Anyone who denies
there is no such genocide will be imprisoned from 6 months to
2 years and ned from 250USD to 1000USD. Having such a law is
a question to how much truth, acknowledgment, and hope that
political groups in Cambodia have toward building a relationship to
peacefully coexist.
Indirect contributions to rule of law, political trust, and
relational and basic capabilities
The insights from legal philosopher Lon Fuller have inuenced
Murphy’s framework of conditions to the rule of law. There are at
least four conditions necessary to maintain the rule of law: “[O]
ngoing cooperative activity,” “congruence between law and informal
social practices,” “legal decency and good judgment,” and “faith
in law” (Murphy, 2010, p. 135). None of them embedded in the
political relationship among the Cambodian groups. The political
groups cooperated and abided by the legal agreements only when
they saw a benet for themselves, without any commitment to
long term relationships. The interpretation of the agreement was
subject to different interpretations by all sides. As seen in the rst
phase, the relationship between the KR and the PRK did not satisfy
any of the four conditions. They continued to ght and the legal
interpretation and implementation were at odds. There was minimal
cooperation in the second phase, but good judgment and faith were
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Transitional Justice and Political Reconciliation
non-existent. The attempt to exist together and compete in the
election in 1993 also failed in the third phase, as the KR decided
to leave the agreement and the three other groups outlawed the
KR. If funding to the KR from foreign countries had not stopped,
Pol Pot had not died, and the KR’s leaders had not defected, the
ghting would have continued and the ECCC would not have been
founded. The only two possible things that the ECCC may contribute
to rule of law in Cambodia now, are the “vigorous investigation of
cases” and the “autonomy of judges in dictating the content of
court arrest orders and sentencing rulings” (McCarthy & UN, 2015, p.
14). As Murphy (2010) suggested, the ongoing cooperation between
political groups is the most fundamental condition to the rule of
law; unfortunately, the cooperated agreement was fragile and none
of the groups saw it as a base line for cooperation.
Trust in general is almost absent in Cambodia today. A recent
survey indicates that 94% of the respondents (n=1000) reported that
people are not trusted (Asian Foundation, 2014). Murphy (2010, pp.
135-136) denes political trust as the willingness of political groups
to be open and see each other as “competent, lacking of ill will,
and decent.” Competent authority will be able to exercise its power
to maintain the rule of law and produce harmonious and fruitful
societal welfare. The absence of the attempts to “undermine,”
“exploit,” and “harm” each other characterizes the lack of ill will
among the political groups (Murphy, 2010, pp. 77-79). With these
attitudes, each will be seen as “decent” in their relationship.
These characteristics (competent, lacking of ill will, and decent)
will generate a “default political trust” and “trust-responsiveness”.
All of the characterizations mentioned were absent from rst to
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fourth phases of the political settlement in Cambodian politics.
From the beginning, as the “Day of Anger” was imposed by the PRK
and “Cambodian bodies and Vietnamese minds” by the KR, little
was seen as conducive to political trust. From the second to fourth
phase, resentment, hatred, and undermining attitudes were all seen
within the political groups. Each sought ways to undermine each
other, and the relationships built were secretive, corrupted, and
exploitative. As a result, the KR was completely dissolved in 1998
and the non-communist groups were divided into many smaller
political factions.
Finally, there are four capabilities inuencing the political
reconciliation process: The ability to be “recognized as a member of
a political community,” “respected by others,” “a participant in the
political, economic, and social processes of one’s community,” and
to keep “bodily health,” to be “nourished,” and to have “sufcient
income” (Murphy, 2010, pp. 101-102). The general condition that
indirectly affects this is to stop and reform all forms of unjust actions
and structures that violate these basic rights and alienate political
groups from the political community. It is not an exaggeration to
claim that the condition has not been fullled if we look at the
goal of the relationship between the four political groups outlined
above. From the rst to fourth phase, each group did not have
a shared sense of community where one was willing to respect
and acknowledge the other’s rights or freedoms. They were only
determined to destroy and take advantage of each other.
Direct contributions to rule of law, political trust, and
relational and basic capabilities
55
Transitional Justice and Political Reconciliation
Reforming and enforcing the declared rule of law that each
group agrees to, changing the negative views and responding to
each other’s demands, as well as providing social services that
include healthcare, education, and training, directly contribute to
the three dimensions necessary to building the political relationship.
It is not fair to say none exists; it is just that little meaning is given
to them from the rst to the third phase. It is in the fourth phase
that all of these attempts have been put into place. Thanks to the
Cold War, which has ended, those countries involved are probably
tired of Cambodian politics. The Paris Agreement in 1991 gave birth
to the Cambodian Constitution which states liberal democracy as
the main ideology and details the inux of millions of dollars on
rehabilitating programs. Although some citizens have beneted from
the peace agreement and development assistance from generous
non-governmental organizations (NGO), political groups did not stop
ghting until 1998.The KR tribunal had to be delayed until formal
processing in 2007. School textbooks about the KR kept changing
from a strong tone of hatred and violence in 1979 to a silence
during the UNTAC period, and a mild voice on human rights in the
tribunal process. However, the revision of the textbook is more
about the political manipulation of students learning in their history
classes (Ngo, 2014). Violence, corruption, and historical myths remain
embedded in Cambodian politics.
Social and moral constraints
There are two social and moral values that need to be
satised before the rule of law, political trust, and relational and
basic capabilities can be effectively repaired and built. These are
the “respect for moral agency and reciprocity” (Murphy, 2010,
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p. 142). It is suggested that these two values are general constraints
to effective political reconciliation. With respect to moral agency,
the question of “what undermines the capacity of individuals to
care about, empathize with, and acknowledge the second-personal
reasons of others?” needs to be answered (Murphy, 2010, p. 150
[Emphasis original]). Murphy claims the understanding of group
identity shared among political groups is where to begin to nd
the answer. Truth commissions can help nd the group narration
of such “psychocultural dramas” that infuse “emotional conicts
over social policy, language, or resources.” Shaping the “narrative
understanding of political communities and of social groups within
political communities” is one of the processes to cultivate respect for
moral agency. From the rst to the fourth phase, Cambodian political
groups still had different narrations. Two noted different narrations
were found, although there was no formal truth commission to seek
and identify these in the KR tribunal. One group like the CPP sees
the Vietnamese as saviours; thus, 7 January 1979 is Victory Day. On
the opposite side, the KR and the other two non-communist groups
see it as a day of Vietnamese invasion. There is a reason for that.
Historian Ben Kiernan (2001) has noted in his Myth, Nationalism, and
Genocide, Lon Nol’s regime (1970-1975), both of its predecessors
(Sihanouk’s), and the KR always use anti-Vietnamese propaganda
to mobilize Cambodians for political purposes. All three shared
the same message that “Ho Chi Minh, in the will made before his
death in 1969, had called upon his fellow Vietnamese to take over
Cambodia” (Kiernan, 2001, p. 188). Pol Pot’s Black Paper released
in 1978 reads:
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Transitional Justice and Political Reconciliation
It recalls the barbarous crime committed by the
“Yuons” [Vietnamese] in 1813… The Yuons buried alive
the Khmer people up to their necks and used the latter’s
heads as a stand for a wood stove to boil water for their
master’s tea. As they burned and suffered, the victims
shook their heads. At that moment, the Yuon torturers said
to them: “Be careful not to spill the master’s tea!”
(Kiernan, 2001).
The KR has portrayed Hun Sen’s CPP as Vietnamese puppets
who are fullling Vietnamese will; the noncommunist groups link the
CPP to both the KR and the Vietnamese. This suggests the Vietnamese
identity in Cambodian politics needs to be openly discussed and
a common sense understanding sought, if the process of political
reconciliation is to be targeted. Unfortunately, this sensitive topic
is ignored in Cambodia today. As a result, there is no respect for
moral agency among the political groups. The other underlying
theme of the constraint is reciprocity. Conditions to the rule of
law and political trust encourage a “recognition and commitment
to reciprocity in transitional context” (Murphy, 2010, p. 134). As
described earlier, these conditions were absent from the Cambodian
political groups. Consequently, there was no attempt to build the
relationship based on reciprocity.
The illustration up to this point has shown that from 1979 to
1998 there were, at least, four attempts made by Cambodian political
groups to work together and unite their differences. However, little
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attempt had been made to build the robust relationship that was
based on the respect of moral agency and reciprocity under the rule
of law, political trust, and relational capabilities. Whether it was in
the form of compromise or trials, the process of building the political
relationship was not there.
Contemporary politics: unity without reconciliation?
“National unity and reconciliation” is rhetoric that
Cambodian politicians have always used to appeal to society.
This rhetoric was frequently used by Prince Norodom Sihanouk
under French colonization. In the Cambodian dictionary,4 “unity”
(Bong-roub Bong-roum/Ek Kpheap) and “reconciliation” (Bong-roub
Bong-roum/Phsas Psar) share the same meaning, and are often
used interchangeably. For example, “unity” in Khmer is translated
to “reconciliation” in English as enshrined in Article 52 of the
Cambodian Constitution.
The Royal Government of Cambodia shall protect
the independence, sovereignty, and territorial
integrity of the Kingdom of Cambodia, adopt
the policy of national reconciliation to ensure national
unity, and preserve the good national traditions
of the country. The Royal Government of Cambodia shall
preserve and protect the law and ensure public
order and security. The State shall give priority to
endeavours, which improve welfare and the standard of
living of citizens. (Constitution of Cambodia, Article 52)
4 The only Khmer dictionary written by Khmer Buddhist Sangha Choun Nath published
since 1938. There is no updated one available yet.
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Transitional Justice and Political Reconciliation
Nevertheless, since the demise of the Khmer Rouge regime,
the concept of “unity” and “reconciliation” is ill-dened and pursued
for different purposes, rather than to politically unite and reconcile as
previously illustrated. They have united, but not politically reconciled.
Even after the UN-led election in 1993 and the full implementation
of the KR tribunal in 2007, political reconciliation is not pursued
under any precise policy action. Others could argue that there are
a number of policies that may contribute to one of the dimensions
of the political reconciliation. These are relational capabilities as
seen in education, healthcare, and other social service policies
aiming to alleviate poverty and encourage political participation.
On the contrary, this paper argues that it contributes little to political
engagement and the building of political relationship, as the rights
to politically engage and express are currently under serious threat.
Under the impunity law today, a number of human rights activists
and members of the opposition party are in prison under various
charges and laws that have been adjusted to limit freedom. During
the time of this writing, two notable events have occurred. One is
the assassination of a well-known Cambodian political analyst, Kem
Ley, and the other is the resignation of the main opposition party
leader Sam Rainsy as the head of the Cambodia National Rescues
Party (CNRP). If his image/picture/photo is found attached to the
party logo, the party will be dissolved. The current situation is very
concerning as there is an indication of no respect of moral agency
and reciprocity, which are the social and moral constraints to political
reconciliation. One possible explanation on why there is a lack of
such respect is the political identity that each political group labels
each other, based on their historical past. Party transformations
and factions continue to haunt current Cambodian politics. In
60
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retrospect, after 1993, the royalist party FUNCINPEC and the Republic
BLDP (former KPNLF faction) participated in a coalition government
but both parties have been fragmented under Hun Sen’s famous
DIFID (Divide, Isolate, Finish, Integrate, and Develop) strategy. Sam
Rainsy, former minister of Finance from FUNCINPEC, founded his
last Sam Rainsy Party (SRP) in 1998. This party later merged with the
Human Rights Party founded by Kem Sokha, a former member of
the Senate from BLDP in 2008, to become a new party -- Cambodia
National Rescue Party (CNRP). The new party won 55 out of 123
parliamentarian seats in the last national election in 2013. Sam Rainsy
is a son of Sam Sary, a former top ofcer under Prince Sihanouk’s
regime, who was later described as a “traitor” to the Prince. Prime
Minister Hun Sen always uses this past to attack Rainsy. In a recent
remark, responding to Rainsy's accusation that the country is heading
away from democracy under Sen’s dictatorship, Hun Sen rebukes:
“I cannot keep calm because of this insult by the son of a
traitor,” ... “Your Excellency called me a dictator,
and today I called you son of a traitor, but it is not me
who insulted your family ... I am following the word used
by the former regime, ... “I know in our modern society
it is difcult to be accepted [as a traitor], but I cannot
change the historic traitor to [a nationalist],” ... “The
leaves do not fall far from the base of the tree.”5
5 Vong Sokheng, “PM launches personal attack on Rainsy,” The Phnom Penh Post, 13
November 2015.
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Transitional Justice and Political Reconciliation
Hun Sen has been known for his bigoted personality and his
ability to neutralize and paralyze opposition. Rainsy has also been
known for his racist rhetoric against the Vietnamese and he always
links them to the current leadership under the CPP. He has been
described as playing the “racist card” and this has caused concern
to both Cambodian and foreign observers (Ebbinghausen, 2014).
Vietnamese Prime Minister Nguyen Tan Dung has also urged Cambodia
to calm the situation and deal with the issues of immigration and
border demarcation as soon as possible (Thong, 2014). However,
these two issues are very sensitive in Cambodian politics. Kem
Sokha, currently the CNRP deputy, was imprisoned in the past for
defamation, after a banner appeared at a rally alleging Hun Sen had
sold Cambodian territory to Vietnam while Sokha was a chief of
the Cambodian Center for Human Rights (CCHR) in 2005. Recently,
senator Hong Son Hour from the opposition party, was sentenced to
a seven-year prison term under the charge of forgery and incitement
after he posted a border treaty between Cambodia and Vietnam
from 1979, which Hun Sen claims is “fake.” Hun Sen describes this as
an act of “treason” and Hour was arrested after Sen’s public remarks
(Sokha, 2015). Another parliamentarian Um Sam An who has vocally
criticized the border agreement has also been sentenced to two and
a half years with a $1000 ne under the charge of “incitement to
cause chaos in society.” (Chheng, 2016) Both of them were arrested
although they have parliamentary immunity. It requires two thirds
of the votes from members of parliament to revoke somebody’s
immunity. However, as the CPP does not have enough voice to do
so, both cases were described as agrante delict, thus warranting
the immediate arrest of the members.
62
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Hun Sen’s deals with Vietnam deserve suspicion. In 2005
he threatened to abolish the monarchy if the new king Norodom
Sihamoni did not sign off on the “supplemental border treaty.”
(Shaw & Chan, 2005) Most opposition party members believe
Cambodia loses some of its territory to Vietnam under such a
treaty. There is also no transparent debate and public discussion
about the issue, and those who have voiced their concern have
always faced death threats. In a speech in 2008, he was willing to
offer cofns to those who dare to claim any land lost to Vietnam.
Further more, he uses the immigration law to respond differently
to the illegal Vietnamese residing in Cambodia, the Montagnard
group eeing from Vietnam and seeking asylum in Cambodia, and
the treatment of the Uighurs that have escaped from China. The
measures used with the two later groups of people are described
as a violation of the United Nations convention relating to refugee
protocol, while few measures have been taken against the former
group. Recently, the Court has dismissed the complaints made by
the CNRP about ve thousand Vietnamese voters who have been
issued Cambodian national identity cards, and who have registered
to vote without nationalization granted by royal decree from
the king, as the law prescribed (Narim, 2017). More explanation
should also be made about the 40,000 hectares of land along
the Cambodian-Vietnamese border. This land was secretly granted
to the Vietnamese People’s Army under companies registered as
Cambodian owned allowing the workers, some suspected of being
Vietnamese soldiers, to farm without going through transparent and
accountable concession procedures (Blomberg & Roeun, 2015). Yet,
the Cambodian government tries to ignore all of these problems.
63
Transitional Justice and Political Reconciliation
The nationalistic sentiment is profound in Cambodia and
needs to be dealt with peacefully. Some CNRP youths previously
offered themselves to the US-led international coalition to ght
against ISIS, however they hoped in return for help to ght against
what they call, “Vietnamese encroachment.” (Sokchea, 2014)
The
CNRP consistently rejects the idea of racism in its policy, but Rainsy
claims the concern is a “legitimate concern for Cambodians, who
can see the future of their country when there is a demographic
imbalance caused by illegal immigration.” (Willemyns & Naren, 2015)
A recent interview focused on what he is going to do with Vietnam
if he becomes a Prime Minister because he does not like Vietnam
and Vietnam does not like him. Rainsy replied:
It is not a matter of liking or not liking. It’s a matter
of respecting each other, but you must start by respecting
yourself rst. If you sell your country to a foreign country,
[it means] you don’t even respect yourself, so other people
will look down upon you. But when a new leadership in
Cambodia shows that they want to defend their country,
love and respect their country, then countries around us
will also start to respect Cambodia. (The Nation, 2017)
Respect and trust are absent among the current political
groups. The CPP and the CNRP created a “culture of dialogue”
in July 2014 after a year-long political deadlock in 2013. This has
fostered an agreement to reform a number of institutions including
(1) constitutionalize an independent national election committee,
(2) amend a number of internal rules in the national assembly to
64
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ensure that the opposition parties work effectively and efciently,
(3) re-examine the Senate management and leadership, and (4)
institutionalize state institutions so that they are independent.
Unfortunately, the CPP dismissed the CNRP’s proposal to amend
the Law on the Organization and Functioning of the Supreme Council
of Magistracy, the Law on the Statute of Judges and Prosecutors,
and the Law on the Organization and Functioning of the Court, that
were promulgated in 2014 in a very controversial environment, as
they were not open for public discussion. They were adopted in
the assembly and senate without participation from the opposition
party as they disagreed over the greatly increased powers given to
the executive body to override the judiciary. The culture of dialogue
also fails abruptly when both of the parties accuse each other of
playing dirty tricks. While Hun Sen is seen as trying to divide the
CNRP by splitting the two leaders from each other, Rainsy and Sokha
are accused of playing “bad cop, good cop.”(Sokchea & Handley,
2015)
Right now the internal rules in the national assembly have
been changed. Deputy leader Kem Sokha has been removed from
his post as the vice-president of the National Assembly. Sam Rainsy
had to leave the country and resign from the CNRP presidency
because the CPP amended the law governing political parties to
prevent any criminal from becoming a party leader. The law states
that the party will be dissolved if its leader is a criminal. Under the
second amendment, dated 10 July 2017, his picture and voice are
also banned from use in public. Any party involved with any criminal
(most likely only referring to Sam Rainsy) threatens the security of
the state and national unity and shall be dissolved by (omit ‘the’)
law. It seems normal in Cambodian politics, as the law has always
been used to oppress the opposition party. There was a similar case
65
Transitional Justice and Political Reconciliation
with Prince Norodom Ranariddh, when a law on monogamy was
passed in 2006 that made the Prince resign from the presidency of
the national assembly and ee to France after being sentenced to
18 months in prison.
With the serious rights violation, corruption, misuse, and
abuse of laws, it is reasonable for each political group to distrust
each other. Also, it seriously questions the ability of the political
groups to build a robust relationship with the blatant disrespect
originating from their past identity.
The younger generation and prioritized policy
Murphy (2010) suggests that although truth commissions and
tribunals may help build political relationships, other contextual
settings have to be considered as well in order to develop effective
political reconciliation policies. Since the ECCC is widely known for
its political inuence and the truth commission is absent, this part
attempts to seek prioritized processes from the current youths’
perception. The objective is to seek what could be prioritized
processes necessary to build political reconciliation aside from the
current ECCC. Youth in Cambodia between 15 and 29 years old
will make up to 40% of the population by 2020 (UNFPA, 2015). The
theory of “Youth Bulge” suggests, “any society with a large cohort
of people in the age group of 1535 years, is at great risk” (Özerdem
& Podder, 2015). Understanding their perception may help alleviate
any possible risk.
Respondents are asked to answer to open-ended questions
about what they think are the most important things that Cambodia
should focus on right now, along with the KR tribunal. The responses
66
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สิทธิและสันติศึกษา
are then grouped and coded into frequent themes of Knowledge
Enhancement (education, human resources development, and building
a productive citizen), Rule of Law (justice, corruption, transparent
government) and Political Trust (trust, respect, unity). These themes
received scores of 40.17%, 20.94%, and 15.81% respectively. Road
building, trafc jam, and other social services such as health care,
food prices, and electricity shortages are grouped to the Development
theme and received the fourth priority of 12.54%.
Building an informed citizen through knowledge enhancement
by providing quality education, critical thinking, and employability
skills is the highest priority concern for current Cambodia, while rule of
law and political trust are the second and third priority. This response
to Murphy’s framework indicates that building basic and relational
capability processes should be prioritized along with strengthening
the rule of law and political trust.
Conclusion
It is argued that Cambodia has to move on and be optimistic
about the future, as the whole country has been “victimized” (Duffy,
1994, p. 219). Yet, this paper posits that how to move on positively
relies mostly on the ability of the antagonist groups to politically
reconcile. This study has explored the political reconciliation pursued
in Cambodia after the Khmer Rouge era. There are notable attempts
to deal with the past either through compromise or tribunals, as seen
from the rst to fourth phases; unfortunately, Cambodian political
groups, with inuences from the international communities, are not
aiming to build a long-term political relationship that is based on the
rule of law, reasonable trust, and relational capabilities. One social
67
Transitional Justice and Political Reconciliation
and moral constraint that makes political groups distrust and have a
low opinion of each other is the past identity that helps dene each
group. The ability to put aside their past and deal with sensitive issues
such as Vietnamese immigrants and border disputes, in a transparent
and accountable manner, will likely build a reasonable trust that is
conducive to the process of building political relationships. Yet, the
question remains whether they all are willing to acknowledge and
hope for a shared future with each other. It is doubtful because the
ruling elites, who set the rules, are determined to always win the
game. This makes cooperation and good faith in law difcult. Future
study should also focus on the ruling political elites in Cambodia and
seek to clarify their stance on political reconciliation.
The survey results from the younger generation provide
another vantage point that policy makers need to consider. Of course,
the role of the current ECCC and the international community may
not be responsible for the messy Cambodian historical debates.
However, other prioritized processes that are aimed at building political
relationship through knowledge enhancement, strengthening the rule
of law, and building political trust are very urgent and necessary in
sustaining peace and democracy in Cambodia. The ability of younger
Cambodian elites to build a future Cambodia is also under threat
if they are still being bombarded with their predecessors’ political
past and identity. Politicians should look to the future rather than
pointing to the distant past where everyone may have committed a
political mistake.
68
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