II. OVERVIEW OF IMPUNITY IN CAMBODIA_

The problem of impunity — in which criminals escape justice — is so deeply entrenched in Cambodia that the phrase "culture of impunity" has become almost a cliché. The problem ranges from the failure to prosecute former Khmer Rouge leaders such as Ieng Sary and Ke Pauk — implicated in the killings of millions of Cambodians in the 1970s — to hundreds of more recent unpunished crimes committed by current government authorities.

Examples range from politically motivated crimes such as the execution of Ministry of Interior official Ho Sok on July 7, 1997 in the Ministry of Interior compound,9 to cases that have nothing to do with politics, such as the police officer who shot a karaoke singer in the head in February 1999 in a Phnom Penh café after she refused his sexual advances.10

The problem of impunity builds on itself: the lack of accountability by state authorities who get away with gross human rights violations encourages others to think that they too can be above the law in committing crimes. Perpetrators learn there is nothing to fear for committing a crime because prosecutions and trials rarely take place — especially of those with connections in high places.

When suspects are arrested who have ties to high-ranking officials, relatives of the suspect or others acting on his behalf may intervene to secure the suspect's release.11 They may try to pay off the police, prosecutor, or investigating judge — or put strong pressure on them — in order to halt the investigation and have the charges dropped. The Royal Cambodian Government acknowledges the problem: "Interference by other branches in the work of the courts most often takes the form of pressure, obstruction of proceedings and threats by those in power, particularly when they are members of the armed forces," the government admitted to the U.N.'s Committee on Human Rights.12

There may be even more pressure in politically motivated cases, where police and court personnel may be shielding other authorities or under threat themselves. Among the most serious incidents of political violence since 1993 are the following:

XIII.Killings of at least two people by government security forces or their agents, and at least eleven known disappearances of other people in conjunction with demonstrations in Phnom Penh in September 1998. Another twenty-four killings were reported in August and September, as part of an increase in killings that coincided with the government's crackdown on the demonstrations, although to date no causal relationship has been established. Dozens more protesters, including monks, women, and students, were beaten or injured by gunfire from government security forces.13

XIV.Murders of at least twenty-two people, in which political motivations played a part, in the final two months preceding the July 1998 elections.14

XV.Summary executions, disappearances, and torture of close to one hundred members of opposition parties in the ten months following the July 1997 coup.15

· A grenade attack against a demonstration led by opposition politician Sam Rainsy at the National Assembly on March 30, 1997, in which at least sixteen people were killed and more than one hundred wounded.16

· Murders of at least five journalists, the attempted murders of at least three other journalists, and violentattacks on several opposition newspaper offices over the last four years.17

· Grenade attacks against gatherings of Buddhist Liberal Democratic Party members in September 1995, which killed two and injured more than thirty.18

Few of the perpetrators of the above crimes have been brought to justice. A 1998 U.N. report prepared by two experts in criminal investigation, who visited Cambodia to evaluate the government's progress in investigating post-coup executions and the deadly March 30, 1997 grenade attack, concluded that the government had not launched any serious investigations into any of the cases and that no investigations were planned.19

A governmental Human Rights Committee, headed by Hun Sen adviser Om Yentieng, was established by the government in 1997. The co-prime ministers signed a subdecree in June 1998 mandating the committee to investigate human rights abuses, to prepare a draft law on the establishment of an independent national human rights institution, and to propose reforms for improving the administration of justice.20 According to Om Yentieng, the committee has proposed reforms in the fields of the judiciary, police, military, and administration.21 However, in its human rights investigations, the committee has not made substantial progress: the vast majority of the cases it has received alleging summary executions, torture, rape, assault, or intimidation committed by state agents remain unsolved.22 The committee did investigate some of the allegations of political violence during the 1998 election campaign, but very few arrests or prosecutions have taken place in regard to more than 130 killings and "disappearances" reported to the Special Representative for Human Rights since 1997.23

In many cases, victims or their families are intimidated or threatened by perpetrators who are assisted by the police or other armed forces. As a consequence, complaints are dropped or the victim decides not to file a complaint. Even though the 1993 Criminal Procedures Law does not require a complaint from a victim to trigger a police investigation, once a complaint is dropped the investigation usually comes to a halt as well.

In some cases, a victim's decision to drop a complaint, even in serious criminal cases such as murder, is linked to payment of compensation by the perpetrator negotiated by police, commune chiefs, or court officials themselves, who take a commission. The victim is often pressured to accept the offer and not file a complaint or press criminal charges. This is particularly common in rape cases, where victims or their families want to avoid publicity about the crime.24 Such arrangements violate of Article 6 of the Law on Criminal Procedure, which allows a civil suit for damages and criminal prosecution in the same case. In other cases, court officials are bribed by the accused party not to proceedwith charges or to drag out cases so that plaintiffs lose hope and drop their complaints.

· In Kompong Som in September 1998, a girl was raped by the son of a high-ranking official. The family decided not to press charges after receiving serious threats and an offer of money from the perpetrator's family to keep silent. No legal action has been taken against the perpetrator.

· Also in Kompong Som, a man living close to the prison was shot by a prison official in March 1997. The victim decided not to file a complaint after he was threatened and harassed by the perpetrator. He was offered a small amount of money to meet his medical expenses. No legal action has been taken against the perpetrator.

· A nine-year-old girl was raped by a man in Kompong Speu province October 1998. The commune chief mediated between the perpetrator and the victim's family. After withdrawing the complaint, the family received U.S. $425.

· A man was shot to death by a drunk commune militiaman in Battambang province in August 1997. His relatives were forced to sign a contract with the perpetrator, who offered them 23,000 Thai baht (about U.S. $610) if they would drop the charges.25

Provincial court officials confirm that payment of compensation to victims is widespread. The chief of the Battambang Court reported "Many criminal offenses and lesser offenses do not reach the prosecutors because the judicial police make [financial] reconciliation, closing the cases."26

Victims often turn to informal arbitration of complaints by local commune officials because they fear or mistrust the police and courts and lack confidence in their technical competence. This is particularly the case in the widespread problem of kidnapping. A Ministry of Interior official said that most families of kidnapping victims never cooperate with the police because they do not trust them. "Their first priority is the safety of their family member," he said. "They forget about putting the perpetrator in jail. This doesn't mean the families support the idea of impunity for the kidnappers. They don't trust the competence of the police. Later they can worry about revenge against the criminal. But until the police show they are loyal to the people, and not loyal to their money, the people will not trust the police or cooperate with them."27

Impunity also occurs when authorities ignore widespread incidents of torture or summary executions committed by police. Police often summarily execute alleged criminals during arrest, rather than conducting proper investigations and arrests and sending suspects to court. Local human rights groups received more than a dozen cases in 1998 in which people were killed by police as punishment for an attempt to escape prison or because they were suspected of robbery or other crimes. According to police records, police killed suspects in 6 percent of arrests, or seventy-six people, in Phnom Penh during 1998.28

Less common are executions by police and gendarmerie of suspects after arrest, but then torture to extract confessions becomes the problem. According to reports by the U.N. Special Representative for Human Rights in Cambodia, one prisoner out of five or six claims to have been tortured while in police custody, representing between 600 and 900cases each year.29 Usually the torture takes the form of repeated beatings and kicking, often until the victim becomes unconscious. Some detention centers are known to systematically use methods such as electric shock, near-asphyxiation with plastic bags, and sham executions.

In general, police do not consider physical evidence and focus on obtaining confessions at all costs in order to prove that a crime occurred. The police commonly defend these practices by stating, "If we don't beat them and use other harsh methods, how will we get a confession?"30

· In January 1996, Liv Peng An was tortured to death by district police officers in Kompong Cham province. According to the official police report, Liv Peng An had committed suicide by hanging himself from the window bars, though his body was found shackled to the ground with his hands handcuffed behind his back. Following complaints of Liv Peng An's family and human rights workers, the Ministry of Justice ordered the exhumation of the body in August 1996. The medical examination revealed that five ribs on the left side of the body were broken. A first trial in 1997 failed to address the issue of torture as the cause of death in custody. The district police inspector was given a suspended sentence for illegal arrest and detention. In February 1998, the co-ministers of interior authorized the prosecution of the police officers for murder. A trial took place in April 1998 and the five defendants were acquitted.31

Impunity means not only lack of punishment, but lack of investigation, arrest or prosecution by local authorities, even in the face of overwhelming evidence. The call to end impunity is not a call for revenge but a legitimate demand for justice and accountability. The government's duty to prosecute and punish human rights violators is solidly grounded in international law and covenants to which Cambodia is a party.

De facto and de jure impunity exists in Cambodia. De facto impunity prevails when a case is not investigated or prosecuted, or when a suspect is not brought to trial by a court, even if all the evidence points towards a certain perpetrator. De jure impunity is a form of institutionalized impunity stipulated by law — for example, the official policy of protecting civil servants, including police, from criminal liability through the provisions of Article 51 of the Common Statutes on Civil Servants.32

The problem of impunity lies in part with chronic problems in law enforcement and the administration of justice, in part with a deeply entrenched culture of violence arising from decades of warfare. But it is fundamentally a problem of political will. The government has little interest in prosecuting known perpetrators of human rights violations and criminal offenses, even in cases that have been extensively documented by local and international human rights organizations and the United Nations.

Offering training programs for the police and judiciary and funding legal reform programs will be ineffective unless Cambodia's leaders are willing to show that no one, not even high-ranking officials, can be above the law and that those officials can and will be held accountable if they commit crimes or human rights abuses.

13 Special Representative of the United Nations Secretary General for Human Rights in Cambodia, "Monitoring of Election-Related Intimidation and Violence," August 20-October 28, 1998.

14 Ibid.

15 Memoranda to the Royal Government of Cambodia submitted by the Special Representative of the United Nations Secretary General for Human Rights in Cambodia, August 23, 1997 and May 13, 1998.

16 The FBI, which investigated the attack because an American citizen was wounded, tentatively found that bodyguards working for Hun Sen were involved in the attack. The FBI report has never been made public, and the Hun Sen government has denied the charges. On March 29, 1999 — two years after the attack — Hun Sen adviser Om Yentieng, chairman of the government's Human Rights Committee, said that the government had identified two people who threw the grenades. While Om Yentieng said that he believed the prosecutor had enough evidence, he said it was up to the police and the courts to arrest them. However, to date no one has been arrested or prosecuted. See R. Jeffrey Smith, "Hun Sen's Guards Tied to 20 Killings," Washington Post, June 30, 1997; and Reuters, "Cambodia says has identified grenade attackers," March 29, 1999.

17 Human Rights Watch, "Growing Climate of Impunity Threatens Cambodian Elections," Human Rights Watch press release, March 30, 1998.

18 Ibid.

19 See Special Representative of the United Nations Secretary-General for Human Rights in Cambodia, "Memorandum to the Royal Government of Cambodia," May 13, 1998; and United Nations High Commissioner for Human Rights, "Grenade attack in Phnom Penh 30 March 1997 and Extrajudicial Executions 2-7 July 1997: An Assessment of the Investigations," Geneva, May 13, 1998.

20 See Subdecree 37 on Establishment of a National Committee for Human Rights, June 8, 1998.

21 Human Rights Watch interview with Om Yentieng, Phnom Penh, April 26, 1999.

22 Beth Moorthy and Samreth Sopha, "Kingdom's Rights Committee Stymied by Politics," Phnom Penh Post, May 28-June 10, 1999.

23 The Special Representative for Human Rights in Cambodia noted that the Committee "did investigate some of the reports of possible human rights violations brought to it during and after the [1998] election campaign. This helped to clarify facts in some of the cases and also secured the release of a kidnap victim." See "Situation of human rights in Cambodia: Report of the Special Representative of the Secretary-General for Human Rights in Cambodia," Commission on Human Rights, February 26, 1999.

24 One human rights group, Licadho, reports that at least 25 percent of the rape cases the organization receives are resolved through financial compensation.

25 The above cases are from "Impunity in Cambodia," a report by the Cambodian Human Rights and Development Association (Adhoc), March 1999.

26 "Annual Report (1998) on Actions of the Provincial Court and Prosecutor," 6 December 1997-30 November 1998, from Battambang Court Chief to H.E. Minister of Justice, November 30, 1998.

27 Human Rights Watch interview with Ministry of Interior official, Phnom Penh, April, 1999.

28 Human Rights Watch interview with Mao Chandara, chief of general staff, Ministry of Interior, Phnom Penh, April 13, 1999.

29 These figures represent only the percentage of prisoners who are tortured, then kept in custody, not those who are taken into custody, tortured, and released before trial. United Nations General Assembly, "Situation of human rights in Cambodia: Report of the Secretary-General," September 17, 1998.

30 Muzamil Jaleel, Cambodian Police and the Need for Reforms, Asian Human Rights Commission, August 1998, p. 35.

31 United Nations General Assembly, "Situation of human rights in Cambodia: Report of the Secretary-General," September 17, 1998.

32 Caroline Ort, "Impunity for the Perpetrators of Gross Violations of Human Rights," Rijksuniversiteit Leiden, February 1994.

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