Cambodia’s recent increases in repression and human rights violations coincide with a strengthening of the country’s ties with China. With Cambodia currently leading the 10-nation Association of Southeast Asian Nations (ASEAN) and the organization’s annual summit with the United States approaching May 12-13 at the White House, now is the time for the U.S. government to take stronger action on Cambodia’s crackdown and its not-unrelated courtship of China. The summit provides an opportunity for the Biden administration to highlight the costs of allying with China and to demonstrate that the U.S. can be a viable alternative, not only providing significant aid, trade, and security benefits, but also tying these benefits to respect for values of democracy and human rights that ultimately would strengthen Cambodia.

Cambodian leader Hun Sen is the world’s longest-serving prime minister. While he has ruled with an iron fist, the last several years have seen a severe deterioration in human rights, including the escalating persecution of human rights defenders. Often these abuses take place with the complicity of the courts, most of which are effectively controlled by the ruling Cambodian People’s Party (CPP). In 2017, the Supreme Court of Cambodia dissolved the main opposition party, the Cambodia National Rescue Party (CNRP), resulting in a de facto one-party state.

As documented by groups such as Human Rights Watch, Cambodia’s human rights situation “dramatically worsened” in the aftermath of that decision. In late 2021, United Nations experts expressed alarm at the “methodical and systematic erosion of civic and political space” in Cambodia. This intensification of human rights violations has occurred in parallel with a deepening in the Cambodia-China relationship. This is all the more concerning given that Cambodia in January assumed a one-year term leading ASEAN.

Vague Wording of Article 495 on `Incitement’

Nowhere is the eradication of Cambodia’s civil society more evident than in the government’s deployment of Article 495 of its Criminal Code. Article 495 prohibits incitement to a felony and incitement to social disorder, providing for up to two years of imprisonment. The vague wording of the provision, which criminalizes a wide range of outcomes — including any disruption of social order, a term left undefined — makes it highly susceptible to abuse, as documented by the American Bar Association (ABA) Center for Human Rights through its Justice Defenders Program and the TrialWatch initiative established by the Clooney Foundation for Justice. Indeed, the authorities have used the provision to incarcerate numerous peaceful protesters, independent journalists, trade unionists, supporters of the CNRP, and individuals expressing critical views on social media or via private messaging services. As noted by the U.S. State Department in its 2021 annual human rights report covering the previous year, “By the end of 2020, the government reportedly filed at least 200 cases of incitement, up from approximately 40 in 2019 and no more than 20 in previous years. This included a mass filing of incitement charges against approximately 120 individuals in November 2020, most of whom were associated with the opposition CNRP. There was no report that anyone had ever been acquitted of an incitement charge.”

Prosecutions under Article 495 represent the majority of politically motivated proceedings in Cambodia over the past several years and have entailed mass trials of over 100 defendants at a time. One of the cases emblematic of this crackdown is that of Ros Sokhet. In June 2020, Sokhet was arrested and detained for various posts on his Facebook page, from which he ran an independent media outlet: the posts criticized, among others, Hun Sen and powerful leaders in the CPP. Sokhet spent four months in pretrial detention and in October 2020 was convicted and sentenced to 18 months in prison, with credit for time served. Like many other such trials monitored by the ABA Center for Human Rights, Sokhet’s conviction came after a half-day trial in which the prosecution presented little evidence and the outcome appeared predetermined.

In December 2021, in response to a petition filed by the Clooney Foundation for Justice as part of the TrialWatch initiative, the U.N. Working Group on Arbitrary Detention (UNWGAD) called for Sokhet’s release and, in the first ruling of its kind, found that Article 495 violates international human rights standards. The Working Group stated that the provision “fail[ed] to distinguish between violent acts and peaceful exercise of fundamental freedoms,” and urged Cambodia to amend it accordingly.

A Range of International Responses

The response from international actors to Cambodia’s crushing of civil society has been varied. With Hun Sen in need of partners willing to overlook the crackdown, China has moved to strengthen ties. It is now Cambodia’s largest foreign investor, and the two countries’ militaries recently signed an agreement aimed at enhancing coordination. As China leapfrogs longstanding partners such as the U.S., Japan, and Sweden into a position of dominance, the risk is all the greater that Cambodia could become a satellite state, threatening the security of Southeast Asia as well as broader U.S. and European Union (EU) interests. As described in a recent report from the Congressional Research Service, “Cambodia is said to be the Southeast Asian country upon which China exerts the greatest influence, and to be China’s ‘most reliable partner in Southeast Asia.’ In return for Chinese investment, financing, and assistance, Cambodia has appeared to accommodate or support China’s positions on various issues in the Indo-Pacific, including territorial disputes in the South China Sea.” There have also been rumblings that Cambodia has granted China access to Ream Naval Base on the coast of the Gulf of Thailand, which in the long term could be used as a staging ground for regional disputes.

Having assumed control of the courts, the legislature, the press, and the military, Hun Sen has ensured that there will be no significant domestic opposition to this shift. Further, a decreasing reliance by Cambodia on other allies not only allows China undue influence but also facilitates Hun Sen’s repression. Unlike democratic nations, China will not use its leverage to push for the improvement of human rights in Cambodia.

While China may seem to Hun Sen and other Cambodian leaders to be a partner with no downside, there are strings attached, as evidenced by the struggles of other CCP allies such as Sri Lanka, which was pressured into transferring control of a strategically significant port to China over its inability to pay off its debt. Perhaps the greatest costs are loss of control over foreign policy and domestic financial independence. Chinese loans accounted for 44 percent of Cambodia’s foreign debt at the end of 2020. Despite China’s denials, that leaves Cambodia subject to the demands of leaders in Beijing in lieu of being able to pay back its loans.

Cambodia’s trajectory is particularly concerning given its chairmanship of ASEAN this year. Upon assuming leadership of the grouping and without consulting fellow members, Hun Sen visited Myanmar in January and met with the new military administration, a move that many described as legitimizing a junta that has been credibly alleged to have committed genocide against the Rohingya people. The likelihood that Hun Sen, as leader of ASEAN, will condemn human rights abuses in the region when he commits similar violations at home is slim to none.

For decades, institutions from the U.N. to the U.S. government to the EU have denounced the lack of democratic institutions and rule of law in Cambodia. These comments, however, have often not been followed by sufficient action. The most concrete of recent measures was the EU’s February 2020 decision, as Cambodia’s largest trading partner, to partially remove Cambodia’s preferential trade status, effective in August 2020, based on human rights violations.

The U.S. response appears to have been largely spurred by perceived security threats. In November 2021, for example, the United States imposed sanctions on two Cambodian officials over corruption at the Ream Naval Base, and in December 2021, the United States announced an arms embargo with Cambodia, primarily on the basis of China’s growing influence.

However, human rights crackdowns, too, must be conceptualized not only as assaults on the dignity and inalienable rights of human beings, but also as potential harbingers of security breakdowns, as they signal the degree of willingness to violate the rule of law in other areas as well and the extent of vulnerability to manipulation by more powerful regimes that promise to prop up their threatened authority. The United States demonstrated an understanding of this symbiosis in a November 2021 business advisory saying it was reassessing Cambodia’s eligibility for the U.S. Generalized System of Preferences (GSP) trade program. “Recent developments in Cambodia, including systemic corruption, transnational organized crime, and human rights abuses, threaten both U.S. national security interests and the fundamental freedoms of people in Cambodia,” the State Department said. Still, that decision came long after the similar 2020 move by the EU.

The United States has several avenues for providing partnership incentives to Cambodia for improvements in the treatment of civil society. First, because Cambodia’s GSP eligibility expired in December, many of its exports to the United States currently are subject to higher import duties, pending GSP renewal. A conditional renewal could deepen the two countries’ trade ties and benefit both economies. The U.S. Congress has similarly placed conditions on foreign aid to Cambodia for years, including in recent annual Further Consolidated Appropriations Acts. The 2020 act, for example, made funding contingent on actions such as upholding the freedoms established by the Cambodian Constitution and resisting China’s influence. The United States also can encourage and incentivize better-quality foreign investment in Cambodia to help decrease its economic dependence on China.

This is a threshold moment in Cambodia. Elections to commune councils (sangkats), which select members of the Cambodian Senate, will be held in June. Traditionally, elections in Cambodia are accompanied by escalated repression, with the government shutting down media and harassing opposition candidates in order to guarantee victory. Meanwhile, several troubling laws and policies are on the table, including a National Internet Gateway that would allow the government “to monitor all internet traffic and disconnect users’ internet connections on arbitrary grounds” and a new cybercrime law that would further enable the prosecution of whistleblowers and journalists. Meanwhile, Article 495 prosecutions continue unabated.

The White House gathering with members of ASEAN next week presents an important opportunity for the United States to limit China’s inroads into Cambodia and respond firmly to the human rights crackdown that fuels and is fueled by those dubious ties. Just a year ago, Hun Sen rhetorically asked during a global conference, “If I don’t rely on China, who will I rely on? If I don’t ask China, who am I to ask?” The United States should use ASEAN to make clear that it is a countervailing option with teeth.

The views expressed herein represent the opinions of the authors. They have not been reviewed or approved by the House of Delegates or the Board of Governors of the American Bar Association and, accordingly, should not be construed as representing the position of the Association or any of its entities.

IMAGE: Theary Seng, a US-Cambodian lawyer and activist who is facing treason and incitement charges, poses in front of Phnom Penh municipal court ahead of her hearing in Phnom Penh on May 3, 2022. (Photo by TANG CHHIN SOTHY/AFP via Getty Images)