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Human Rights Watch / Asia letter to Donors (May 11, 2000)
May 11, 2000 
To: Donor Representatives,
May 24 Consultative Group Meeting on Cambodia

From: Mike Jendrzejczyk,
Washington Director,
Human Rights Watch / Asia

We are writing in regard to the meeting of the Consultative Group (CG) on Cambodia scheduled for May 24 in Paris, to offer some recommendations and suggestions. Donors can play a key role at the CG meeting by outlining to the Cambodian government essential steps to strengthen protection of basic human rights. This is also a useful opportunity to press the government to fully comply with international standards in its negotiations with the U.N. on creation of a tribunal for leaders of the Khmer Rouge. 

Human Rights Watch continues to strongly favor unconditionalCand increasedCfunding and other assistance for humanitarian, human rights, and democracy‑building projects through non-governmental organizations (NGOs) in Cambodia.

However, we strongly urge both bilateral and multilateral donorsCincluding the World Bank and Asian Development BankCto strictly condition any direct assistance to the Cambodian government on its demonstrable progress in ending official impunity, strengthening the rule of law, implementing judicial reforms, initiating anti-corruption measures, and bringing Khmer Rouge leaders to justice. 

We welcome the fact that donors have met with officials in Phnom Penh over the last year to monitor Cambodia's compliance with its commitments at last year's CG in Tokyo.  But thus far, only an informal group has met to discuss issues of good governance and rule of law. In order to establish clear benchmarks to oversee implementation and mark the Royal Cambodian Government's progress in addressing ongoing human rights issues, we urge donors at the meeting in Paris to establish an official working group on human rights and rule of law. This should be a major priority for the CG.   

Specific human rights‑related issues we urge the donors to raise with the government at the CG meeting, listed in order of priority, include: 

1) Bringing the Khmer Rouge to Justice

Human Rights Watch urges donors to express their support for the U.N.'s role in any international tribunal of the Khmer Rouge and to make clear to Prime Minister Hun Sen during the CG meeting that they will not provide funding, technical assistance, judges, or other support until minimum standards of justice are guaranteed, as outlined most recently in U.N. Secretary-General Kofi Annan's February 8 letter to Prime Minister Hun Sen. The pre‑conditions for U.N. involvement include:

Donors should insist that core principles of judicial independence, fairness, and due process are upheld in Khmer Rouge trials. Decisions on whether to indict, convict, or acquit, as well as evidentiary and procedural decisions made in the course of criminal trials, must be insulated from political manipulation. Draft proposals currently under consideration by the Cambodian government do not appear to satisfy these basic criteria. 

A key issue is whether Cambodian officials will control key trial decisions.  If the Cambodian judicial system were a healthy one, this would not be a concern, but the system is still reeling from the depredations of the past. Even with international assistance, the Cambodian judiciaryCdecimated by the Khmer RougeCis not yet capable of offering the fairness and transparency necessary to conduct trials of this sensitivity and complexity. The system is plagued by poorly trained and low‑paid judges and judicial staff, lack of resources, and judges who are understandably too fearful to prosecute armed and powerful offenders. The unfortunate state of the judiciary was noted by the U.N. Group of Experts and by the Cambodian government itself when, in 1997, it requested U.N. assistance to bring Khmer Rouge leaders to justice. Given this background, it is specious for the Cambodian government to now insist that international concerns with the fairness and independence of the proposed tribunal should be viewed as a threat to Cambodian sovereign pride. 

In negotiations with the U.N. in March of this year, the Cambodian government balked at the idea of co‑prosecutors, one U.N.‑appointed and one Cambodian, each with the power to issue indictments, and insisted instead on giving each co‑prosecutor veto power over decisions of the other. In a recent concession, Prime Minister Hun Sen agreed to the idea of establishing an arbitration panel to resolve differences between co‑prosecutors and between co‑investigating judges.  

Human Rights Watch is concerned that the proposed arbitration panel has the potential to create a politically‑charged indictment process in which the U.N.'s position as a neutral party will be directly compromised. It is also likely to cause delays and to be impractical and divisive.  

Under the proposed system, the U.N.‑appointed prosecutor would not be able to indict whomever he or she deemed appropriate if the Cambodian prosecutor objects. Instead, the matter would go to an arbitration panel composed of three Cambodian judges and two international judges for a final decision within thirty days. Although four of the five judges would have to agree with the Cambodian prosecutor=s objection for it to stand, the process will give prosecutors an incentive to oversee each other=s work, creating a divisive atmosphere. It would also create a dangerous precedent and lower the standards for international justice: the U.N. would be essentially acknowledging that it=s own judicial appointee is a partisan whose decisions are subject to arbitration and who is an adversary of the representative of a national government. Other countries might well insist on similar arrangements in the future, undermining the U.N.=s ability to assist other international justice efforts as an impartial outside agency. 

Entirely apart from the arbitration panel issue, however, there are a number of other critically important concerns that must be addressed if the tribunal is to be able to operate fairly and impartially. These issues, which have been largely lost sight of in the focus on the latest developments in the Cambodian government=s negotiating position, include the following:

 While continuing to uphold firm standards, the U.N. has shown good faith in negotiating and compromising with the Cambodian government on various issues in regard to the tribunal over the last year. In February 1999 the U.N. Group of Experts, mandated by the Secretary‑General to explore options for bringing the Khmer Rouge to justice, called for a majority of international judges and prosecutors and recommended against conducting an international tribunal within the deeply flawed Cambodian judicial system. The experts feared that Cambodian court officials would face constant political pressure and be unable to carry out their duties with the requisite impartiality. 

The U.N. has made significant concessions since the release of the Experts' reportCsuch as agreeing to the idea of a mixed tribunal conducted in Cambodia, for exampleCwhile not compromising the fundamental standards of fairness, neutrality, and due process. If basic principles of fairness and independence are not upheld, not only will Cambodians be cheated of justice, but the international standards needed to prosecute and deter other tyrants around the world will be undermined. 

Recommendations:

 2) Steps to End Impunity

The government has failed to prosecute civilian and military authorities responsible for recent crimes and human rights abuses. An emerging trend is for victims of rape and of physical assault committed by government agents to be pressured to settle cases out of court, with the encouragement of local officials, police and/or court staff.

 A 1999 report by Human Rights Watch and two Cambodian groups, ADHOC and Licadho, documented 263 killings (mostly non-political) allegedly committed by state agents that went unpunished. In addition, the perpetrators of hundreds of politically-motivated extra judicial killings, incidents of torture, and other abuses committed before and after the 1997 coup and 1998 elections have not been brought to justice.

Vigilante killings of suspected thieves by mobs have increased, with alleged suspects actually released by police to angry mobs on at least several occasions. In 1999 there were at least twenty‑three cases of mob violence against alleged criminals, in which twenty people were killed. Undue use of lethal force by police in apprehending suspects also remains a problem. In 1998, one in every thirteen arrests in Phnom Penh resulted in either death or injury.

In accord with pledges made at the last CG meeting, the government has recently passed a subdecree establishing a council for judicial reform, although the council is not yet active. The Supreme Council of Magistracy (SCM) has begun to meet more regularly but remains a politicized and largely ineffective body. It took no action on the December 1999 re‑arrest campaign and suspension of court officials ordered by Hun Sen. The Minister of Justice, a member of the executive branch, remains a member of the SCM.

Recommendations:

 3) Corruption

Corruption continues unabated in Cambodia. In the lead up to the CG meeting, Hun Sen suddenly announced steps to tackle corruption: ordering the dismissal of corrupt officials in Koh Kong province, the arrest of officials operating illegal extortion checkpoints, and a crackdown on illegal marijuana plantations.

The December 1999 directive by the Prime Minister to suspend several judges and re-arrest individuals who allegedly bribed their way out of prison was launched ostensibly in an effort to curb corruption. But the re-arrests and suspensions were in clear violation of Cambodian law. No warrants were ever produced for the arrests, nor were established legal mechanisms employed such as the Supreme Council of Magistracy. As of this month, thirty-six people who were rearrested last December remain in jail, including one fourteen-year-old boy. June marks six months in detention, the legal limit for holding detainees without trial. 

Recommendations:

 4) Attacks on Political Rights and Freedom of Association

Attacks on human rights defenders in Cambodia have continued, including the threat of arrest in March 2000 of Licadho staff members, reportedly because of their role in providing humanitarian assistance to victims of labor abuse, including ethnic Vietnamese minorities lacking proper work authorization. Licadho employees also received anonymous threats that demonstrators would attack the group's office in Phnom Penh. In January 1999, Cambodian human rights organizations in seven provinces were intimidated by government authorities during a campaign to gather signatures from Cambodians requesting the U.N. to establish an international tribunal for the Khmer Rouge. Other attacks on human rights defenders include the December 1998 killing of a member of ADHOC in Kandal province, the December 1998 arrest of two workers from Licadho for allegedly inciting riots in Sihanoukville (the charges were later dismissed), and acts of intimidation and threats of arrest against provincial rights workers from both ADHOC and Licadho in Koh Kong province in 1999 and  2000.

The opposition Sam Rainsy Party (SRP) also continues to come under pressure. In May, crowds in Phnom Penh attacked SRP headquarters and destroyed a memorial  erected by the SRP for victims of the 1997 grenade attack.  In October 1999 SRP member of parliament Lon Phon was abducted from his house in Phnom Penh by four armed men dressed in military uniforms. After payment of a ransom he was released several days later. In September military police surrounded the homes of SRP members in Siem Reap and Battambang in connection with a rocket attack in September 1998 on a motorcade carrying Hun Sen. Two SRP members were detained in Phnom Penh for several months in regard to the rocket attack. Upon their release in March, they were warned that charges against them still stood and they could be re‑arrested at any time.

Recommendations:

5) Commune Elections

The commune elections have been postponed several times and it is now thought that they will not be held until mid‑2001. Donors should press the government to conduct the elections in a timely manner and condition any aid on clear benchmarks that incorporate human rights standards (see below.)  CG members in Paris should agree on a process to work with the government to define those benchmarks.  

Prior to the commune elections, it is crucial that the militia be included in national demobilization plans. They were used during the last elections to carry out political violence and intimidation of opposition supporters on behalf of the ruling party.  While the militia tends to be less active during non‑campaign years, in 1999 the government proposed the establishment of volunteer civilian "People's Protection Units," mandated to patrol villages and apprehend alleged criminals. We are concerned that such civilian security patrols will contribute to an increase in vigilante violence against alleged robbers and also be used to intimidate potential opposition candidates in the elections. 

Recommendations:

 6) Torture and Prison Conditions

Cambodia's prison population is subjected to excessive pre‑trial detention, food shortages, shackling, detention of minors, and killing of prisoners attempting escape. From January to May 1, 2000, documentation by a Cambodian NGO shows 166 cases of torture in custody of arresting agents, twenty‑three torture cases in prison and twenty‑one cases of ill treatment in prison. In June 1999, two escaped prisoners were allegedly killed execution‑style with shots to the head by prison guards at the Sihanoukville prison upon recapture. Excessive pre‑trial detention is increasingly an issue. In Phnom Penh approximately 130 pre‑trial detainees have been detained for more than six months. Shackling of prisoners is also re‑emerging as a problem, often under the authorization of the Prison Department or provincial prosecutors.

 Recommendations:

 7) Exploitative Labor Conditions

Military and police are complicit in incidents of in trafficking of women and children for sexual exploitation and to work in substandard conditions in Cambodian garment factories and sweatshops. Very few cases are brought to justice, except those that have received sustained intervention from the very highest levels. In twenty recent cases of human trafficking received by one local NGO from late 1999 to early 2000, for example, perpetrators have been arrested and detained in only three of the cases. In another incident in February 2000, trafficked workers from Vietnam and China were detained and forced to work at the GT garment factory in Phnom Penh. Police raided the factory and released the workers, but afterwards repeatedly threatened to arrest the workers, as well as members of Licadho, which were assisting in the case, because the workers lacked proper documentation to work in Cambodia. No punitive action was taken against those who were responsible for smuggling the workers into Cambodia and detaining and exploiting them in the factory. Powerful figures running trafficking networks and their accomplices, most of whom are government officials, soldiers, or policemen, are usually immune to prosecution because of the very narrow definition of the perpetrator‑trafficker in these cases.

Recommendations:

We appreciate you taking our views into consideration. Please let us know if we can provide any additional information or documentation in advance of the CG meeting.