By Lennert Breuker 

The number of deaths and injured as a result of the violence at the recent demonstrations in Thailand was rather shocking to me when I found a few days after. Human rights watch claimed that ‘15 civilians and 5 soldiers were killed by gunshots, explosions from grenades, improvised explosive devices and beatings during the clash. At least 569 civilians, 265 soldiers, and 8 police officers were injured from teargas inhalation, assaults, and gunshot and shrapnel wounds’ (http://www.hrw.org/en/node/89615?tr=y&auid=6216609). The Phnom Penh Post made mention of 17 civilian and 4 military casualties. I was actually waiting for my flight to depart on 10 April from Bangkok airport to Phnom Penh (where I’ll be assisting a defence team at the ECCC for a few months), when I watched the demonstrations unfold at an early stage. It seemed to me that the police, or security forces, were quite reserved and passive when facing provocations from the protesters. At that moment it seemed rather ritualistic to me: the police would just serve as punching bag so that the demonstrators could, without much fear of a violent response, unload some of their frustrations. It seemed like a sensible attitude to me. I did notice however that the Thai personnel of the restaurant and other airport services watched the event with more intensity than me. Of course, I had missed the previous days of demonstrations, which already had seen serious escalation, of which the Thai were probably very well aware of.  

Human Rights Watch urged both parties to search for a political solution, something that seems far away when hearing the comments from either side. According to the government, they were dealing with ‘terrorists’, who used ‘pro-democracy protesters to incite the unrest, hoping for total change in our country’ (Phnom Penh Post 13 April), while the so-called Red Shirts, allegedly mainly from rural and poor regions of Thailand, refused any kind of dialogue with the government. The Phnom Penh Post quoted Red Shirt leader Jatuporn Prompan as follows: ‘We will not talk with killers. What else is there to talk about?’ Strikingly, Army chief Anupong Paojinda openly supported the call of the protesters for early elections, saying that the problem must be ended by political means. 

In fact, the Phnom Penh Post mentioned that the Election Commission has already called for ‘the dissolution of the ruling party over allegations of illegal donations’. Government officials however have announced to appeal the decision. In the meantime, Prime Minister Abhisit Vejjajiva is said to have proposed moving the elections forward to the end of 2010, one year earlier than would be required, but the protest-leadership insists on immediate polls. They consider the rule of Abhisit’s party to be illegitimate as some of Thaksin’s allies were ejected from a position of power by a Court decision (Thaksin being the people’s electoral choice before the military coup in 2006).  

Neighbouring States allegedly expressed their concerns about the unrest, but direct neighbour Cambodia itself is not unfamiliar with this kind of political violence. A Cambodian member of the defence team told me that years ago – 13 to be precise– four grenades were thrown into an opposition gathering which was formed ‘to denounce the judiciary’s lack of independence and judicial corruption’ (http://www.hrw.org/en/news/2007/03/29/cambodia-after-10-years-no-justice-grenade-attack-opposition). Despite, or perhaps because of, very credible allegations of government involvement in the attack, a genuine investigation was never conducted or finalized. On the contrary, it was followed by verbal and physical repression of the opposition and media, and ultimately by a violent coup by co-Prime Minister Hun Sen, whose personal bodyguard was tentatively identified in an FBI report as being responsible for the grenade attack.  

In 2007 Human Rights Watch called upon the FBI to reopen its investigation. It’s not known to me whether this has been the case, but I don’t think it would be overly cynical to think this has not been done (or even considered). To call this a missed opportunity would be understating the matter in light of its gravity. Not only did many people get killed or maimed, Human Rights Watch also claimed that Cambodia’s politics never fully recovered, as it partially affected ‘serious political pluralism’.  

Moreover, if impunity is maintained for this attack, how can one expect any positive spill-over effect in the sense of a strengthened respect for the rule of law, or of an effective setting of an improved normative standard resulting from the trials at the ECCC? The ECCC is supposed to have a positive impact on the other courts as it is envisaged to function as role model (http://www.eccc.gov.kh/english/about_eccc.aspx). It seems at least arguable that the implicit message of the ECCC’s work falls onto infertile ground if more recent crimes, be it of a different gravity but still extremely harmful, are treated with impunity. It’s an accepted insight in criminology that certainty of punishment is essential for the maintenance of a particular normative standard. And although no criminal justice system can guarantee absolute certainty of punishment in response to crimes, such a discrepancy as found between the ECCC trials and the lack of genuine investigation and prosecution of the political violence in the late nineties will not contribute to a productive judicial synergy between the ECCC’s important work and other Cambodian courts, at least in the perception of this author. 

And that such a synergy would be beneficial to Cambodia’s criminal justice system seems to be confirmed by another article in the Phnom Penh Post of April13, which dealt with the possible Khmer New Year royal pardon for an imprisoned newspaper editor. Hang Chakra, former editor-in-chief of an opposition aligned newspaper, had been sentenced to one year imprisonment for ‘spreading disinformation’. His conviction followed a series of articles on corruption of high-ranking officials. The newspaper in question, Khmer Machas Srok, had to terminate publication operations, as its advertising clients had to withdraw under government pressure.  

Although this may be an isolated incident, it has a rather negative ring to it, to mildly understate things. It seems that there is much to be improved as regards the freedom of expression and political pluralism, and the future will have to show whether the ECCC will have any impact at all on the strive for a strengthened rule of law in general or whether its impact will be negatively influenced by the governments unwillingness or inability to address other serious crimes on its territory, particularly where government officials are involved.