November 13, 2012

III. Recommendations

Since the 1991 Paris Agreements, countless reforms of Cambodian institutions responsible for the administration of justice have been suggested. Year after year donors have proposed, and the Cambodian government has agreed to, significant reforms, such as measures to promote the professionalization of the police and independence of prosecutors and judges. Yet the justice system remains a deeply and unwaveringly politicized institution, with senior officials being political appointees whose primary allegiance is to the prime minister and the ruling CPP.

As early as 1995, UN special representative Michael Kirby recommended that a high-level interdepartmental committee be established to investigate and report on judicial complaints concerning refusal or failure of military, police, or other officials to execute court warrants directed at military, police, or political figures or members of their families.[150] Two years later no improvements were evident and his successor, Thomas Hammarberg, called for determined action to address impunity.[151] Hammarberg’s successors, Peter Leuprecht, Yash Ghai, and Surya Subedi, have repeated these calls. Not only have they been unsuccessful, but Hun Sen has frequently responded to their allegations with angry attacks on their character.

While the UN special representatives and rapporteur and the UN human rights field office have done exemplary work in documenting the problem and making useful recommendations, they have not been backed up by the international community, which does not seem to have adequately grasped the reality of impunity in Cambodia. Donors in particular do not seem to appreciate the corrosive effect that impunity has had on all aspects of governance, including efforts to institute the rule of law and combat the scourge of corruption. In part for this reason, the institution-building efforts demanded and supported by them over 20 years have largely failed, leaving a tragic mark on the post-Paris period.

Diplomats deserve credit for frequent interventions to protect opposition party members, civil society activists, and others when under threat from government officials. Yet foreign governments, the UN, and donors have not put sustained and coordinated pressure on senior officials and government institutions responsible for serious human rights violations. The culture of impunity needs to be addressed head-on, not ignored or downplayed, as so many foreign governments and donors have done over the past 20 years. Governments and donors should end their own culture of talking in generalities and avoiding confronting senior government and ruling party officials.

A good place to start would be examining the backgrounds of key officials. For example, while the United States has been one of the most outspoken critics of the Cambodian government’s human rights record since Paris, its actions toward officials implicated in serious abuses often undermine its words. In March 2006 the FBI awarded a medal to the then Cambodian chief of national police, Hok Lundy, for his support of the US global campaign against terrorism. Hok Lundy, who died in a helicopter crash in 2008, was a notorious human rights abuser and perhaps the most feared person in Cambodia. The medal from the US was used as a major propaganda tool by the Cambodian government, while human rights activists called into question the true intentions of the US. In September 2009, US Secretary of Defense Robert Gates hosted a meeting at the Pentagon in Washington with Cambodian Defense Minister Tea Banh. Tea Banh has presided over the Cambodian military for the past two decades, during which it has committed widespread abuses with impunity. Unsurprisingly, Tea Banh was greeted as a hero by CPP-controlled media upon his return from the United States.

Since 2006, the United States has provided more than $4.5 million worth of military equipment and training to Cambodia. US aid has included counter-terrorism training to personnel from Hun Sen's bodyguard unit and Brigade 70, who have been moved to a special anti-terrorist unit that was created in January 2008. US training has also been provided to members of Division 911. As this report documents, Brigade 70 and Division 911 have been implicated in numerous serious abuses, including arbitrary detentions, targeted killings and other unlawful attacks, torture, and summary executions.

If the promise of the Paris Agreements is ever to be reached, Cambodian authorities and their international backers need to make the end of impunity a key priority. Voluminous documentation exists about individuals in high-ranking official positions in Cambodia. Only with an adequate awareness of the track records of Cambodian leaders they deal with and the situation in which they work can governments, diplomats, and donors begin to press the government to address impunity. Without memory, justice is impossible.

Keeping track of known human rights abusers should be the easy part. A harder but necessary step is to persistently demand the arrest and prosecution of people like Yon Youm, the perpetrators of the March 30, 1997, grenade attack, and other known perpetrators of serious abuses. This would be the best way to celebrate the 20th anniversary of the Paris Agreements and show Cambodians, including the many victims of the past two decades and their families, that the signatures of those 18 countries still have meaning.

Instead of rehashing recommendations contained in a plethora of long discarded donor agreements with the government, Human Rights Watch suggests that the 20th anniversary of Paris be used to restate some basic steps that should be accepted by the government and insisted upon by donors, the UN, and other influential actors in order to address impunity:

  1. The creation of a professional and independent police service whose leadership is appointed by an independent police commission, which also has the power to audit the police, investigate complaints, and dismiss officers who violate a professional code of conduct.
  2. The creation of a professional and independent judiciary and prosecution service. Judges and prosecutors should be appointed by an independent judicial commission, which also has the power to investigate complaints and discipline judges and prosecutors who violate a professional code of conduct. This would require a constitutional amendment to transfer powers from the deeply politicized Supreme Council of Magistracy, which currently makes proposals to the King on the appointment of judges and prosecutors to all courts.
  3. A ban on senior police officials, judges, and prosecutors holding official or unofficial positions of leadership in political parties.
  4. Revisions to the criminal law to make it a crime to obstruct the administration of justice, including by instructing or putting undue pressure on police officials, judges, or prosecutors to act or not act in a particular manner.
  5. A demonstrated willingness by the government to respond in a professional and impartial manner to allegations of human rights abuses by victims and their families, human rights organizations and other civil society groups, the UN human rights office and other UN agencies, the media, and others who bring concerns to the government’s attention.

As the human rights organization LICADHO said in a recent report, for any proposed reforms to have an impact:

Cambodia’s donors must be more coordinated in their approach to legal and judicial reform, set stringent benchmarks for measuring improvements, and send a unified message to the government that “mere rhetoric, and enactment of laws that are not enforced, will no longer suffice.” In order to insist on meaningful reforms which have a real impact on the lives of Cambodians, the international donor community must understand, accept and engage with the reality of justice in Cambodia.[152]

To better engage with the “reality of justice in Cambodia,” donors should coordinate their efforts and establish an independent mechanism to monitor the functioning of the police, prosecutors, and judges and regularly assess the implementation of the above principles. Future funding allocations should be driven by the findings of the independent monitoring mechanism.

[150] The Special Representative of the Secretary-General for human rights in Cambodia, “The situation of human rights in Cambodia,” UN doc. E/CN.4/1995/87/Add.1, February 13, 1995, p. 11.

[151] The Special Representative of the Secretary-General for human rights in Cambodia, “The situation of human rights in Cambodia,” UN doc. E/CN.4/1997/85, January 31, 1997, para.148.

[152] LICADHO “Human Rights in Cambodia: The Charade of Justice,” December 2007, http://www.licadho-cambodia.org/reports/files/113LICADHOReportCharadeJustice07.pdf, p. 29 (accessed April 4, 2012).