"If somebody kills a poisonous snake, are you angry with the killer?"
—Pailin Court President Pich Sarin, explaining why the court did not take action after municipal police executed two murder suspects without trial.1
· A brothel owner in Banteay Meanchey province with connections to high-ranking military beats a prostitute to death in front of more than a dozen witnesses. He is detained, then released allegedly for lack of evidence.
· The bodyguards of a provincial governor in Kompong Speu catch a sixteen-year-old boy who has scaled the wall of the governor's compound to steal chickens. They tie him up and torture him, and then pump more than ten machine gun bullets into his body, killing him instantly. No action is taken against them.
· Soldiers in Kompong Thom arrest ten fishermen suspected of cow theft. They are marched to a secluded clearing, where they are tied up, searched, and tortured. When one of the men tries to run, the soldiers execute nine of the men with at least one bullet to the head. One man is able to escape. When he goes to the police station to identify the perpetrators, he sees one of the soldiers sitting there chatting with his police friends. The victim quickly leaves.
· A member of the commune militia in Takeo breaks up a holiday celebration of a popular opposition leader in the village — saying the people are "making too much noise"— by shooting five people one by one.2 He returns later to finish off two of the wounded people with a grenade. Police come the next day to look at the bodies but leave without taking any action against militia members. Several days later, the militia leader leaves town, and the case stalls.
While all of these incidents happened more than one year ago, none of the perpetrators have been brought to justice, nor, in most cases, have local law enforcement or judicial officials launched more than token investigations. These are not isolated incidents; similar failures of the justice system happen every day in Cambodia.
Two Cambodian human rights organizations — Adhoc and Licadho3 — and an international human rights organization, Human Rights Watch, conducted a two-month investigation and analysis on the problem of impunity in Cambodia. They found that the main reasons for lack of arrests and prosecution of human rights offenders include the following:
1. Lack of political will and determination by the top echelons of government to address the problem. Failure by authorities to prevent and punish serious violations of fundamental human rights encourages others to commit offenses, knowing that they too can probably get away with it.
2. Lack of neutrality and independence of the judicial and law enforcement systems. Both the courts and the police are thus vulnerable to intervention, pressure, and directives from high-ranking political or military figures. The rule of law is undermined to the extent that justice is carried out through orders and executive decrees. Due process issabotaged because the focus in criminal justice is often to extract confessions and convictions rather than collect evidence, conduct proper investigations, or hold impartial trials.
3. Little control over the use of firearms and lethal force. Decades of war and civil strife have left Cambodia saturated with weapons, which are misused by police and military both in the line of duty and outside working hours. War has also left behind a culture of violence where the instant reaction to an apparent crime is to kill the perpetrator, rather than waiting for a case to work its way through the politicized, weak, and often corrupt court system. In Phnom Penh, for example, at least one in every thirteen arrests during 1998 resulted in either death or injury; out of 1,152 arrests, police killed seventy-six people and wounded twelve.4
4. State-sanctioned impunity in the form of Article 51 of the Common Statutes on Civil Servants provides protection to state agents who commit crimes or human rights abuses by requiring the permission of the perpetrator's ministry prior to arrest. Each year the Ministry of Justice receives more than one hundred requests for waivers of immunity granted to police or civil servants. Authorization was granted in forty-four of the total cases in 1998; the rest are listed as still waiting response from the relevant ministries. This means in effect that Article 51 protections for the offender are still in place for those not yet authorized for prosecution.5
5. The deterioration of the political situation from 1996 onwards. This resulted in the two halves of the coalition government — the Cambodian People's Party and the royalist party, Front Uni National pour un Cambodge Independent, Neutre, Pacifique, et Cooperatif, or Funcinpec — protecting their own subordinates from prosecution.
6. Minimal cooperation between police and courts and the fear of both bodies to investigate and prosecute crimes committed by the armed forces.
7. Inadequate salaries and related morale problems, leaving civil servants, police, and military susceptible to corruption.
8. Low level of professionalism in judicial and law enforcement bodies. These bodies fail to follow correct procedures because their personnel lack training, competence, and resources. The absence of legal mechanisms and professional competence means the security forces are often unable to conduct independent investigations into instances of misbehavior within their own ranks.
Adhoc, Licadho, and Human Rights Watch also found that there are numerous points in the criminal justice process when actions by state agents can undermine or destroy the possibility of bringing perpetrators of crimes to justice, particularly when they are members of the police or military or connected to powerful individuals in the government or private sector.
∙ Information about the commission of a crime has to reach the prosecutor before it can move through the courts. Prosecutors are obliged by law to investigate a crime that comes to their attention, even if they have not been informed of it by the police, but in practice, if the police do not report a crime, it often does not get to the court.
∙ If the prosecutor does receive a case and there is enough evidence to prosecute, he should either promptly issue an arrest warrant or forward the case with preliminary charges to an investigating judge. The question then is first, whether the investigating judge will actually issue an arrest warrant and second, whether the police will actually deliver it, or whether arrangements will be made by local officials or the police for an out-of-court settlement bythe perpetrator. Such financial settlements are common in criminal cases, especially rape, with the intermediary (police, local officials, or court personnel) usually taking a commission.
∙ Under Article 51 of the Common Statutes on Civil Servants, no civil servant or member of the police force can be arrested or charged unless the perpetrator's ministry formally grants permission. Civil servants, including police, are effectively immune from prosecution unless their superiors waive that immunity. The process of requesting such a waiver can take months, during which time the suspect can live freely in society — or escape altogether — or intimidate witnesses or victims. Ministries often refuse to grant permission to waive the immunity granted by Article 51. In reality, despite the fact that Article 51 does not apply to military personnel, it has been used by the military hierarchy to deny permission to courts to prosecute its subordinates.
∙ In the rare cases that police officers, soldiers, militia chiefs or local officials are actually arrested, prison authorities often hesitate to detain them because of intense pressure they face for their release. Police usually receive preferential treatment in jail and sometimes are allowed to go free during the day or are freed pending trial, unlike ordinary criminals.
∙ After arrest, the case goes back to the investigating judge. Because judges are often pressured to dismiss cases involving police or military, few cases involving these forces ever reach trial, or if they do, the judges will often give suspended sentences.6
∙ If the case does go to trial, witnesses can be paid off or threatened, so they do not show up in court or they change their stories to the benefit of the perpetrator. Pressure can also be brought to bear on victims or their families to drop their complaints in exchange for financial compensation; this is especially common if the perpetrators are allowed to go free pending trial, which gives them an opportunity to intimidate witnesses and victims.
∙ If actually convicted, the perpetrators may threaten or bribe the court or prison staff afterwards, sometimes securing their release from prison after being sentenced.7
∙ Finally, large numbers of court verdicts are not actually implemented, particularly for military offenders who can threaten armed retaliation, obtain protection at their military base, or, as in most cases, simply not respond to court summonses or warrants. In the latter cases, the offenders are sometimes tried in absentia.
Some of the analysis in this report is derived from a study conducted by Adhoc and Licadho of killings that have occurred over a twenty-two-month period in Cambodia. The research found that at least 263 people were allegedly killed by the police, the military, the gendarmerie, militia members or local officials, and that while many of these appear to have been deliberate executions, none of the perpetrators were brought to justice. A summary of the findings of the research is appended. In addition, this report includes four in-depth case studies illustrating the problem of impunity at the provincial level.
Adhoc, Licadho, and Human Rights Watch believe that policy changes in five key areas could reduce the problem of impunity in Cambodia. These five areas are the military and police, the judiciary, legal reform, criminal justice administration, and support for human rights monitoring. Accordingly, we recommend the following to the Royal Cambodian Government and Cambodia's donors, neighbors, and trading partners:
Military and Police
1. Take steps to establish a genuinely neutral police and military by establishing minimum qualifications for entry into service and competitive hiring procedures and by creating an independent appointments committee.
2. Hold police and military officers accountable for any crimes they commit and enforce prohibitions against their interference in the administration of justice. Instruct the Ministry of Defense to cooperate with relevant authorities in the police force, judiciary, and gendarmerie to ensure that soldiers who commit crimes and abuses are arrested, prosecuted and punished. Those in the military chain of command who protect soldiers accused in criminal cases should be disciplined with demotion or expulsion from the armed forces. Enforce legal provisions to ensure that complaints from victims are not required to trigger action against military offenders.
3. Establish a clear demarcation of responsibilities and chain of command between the different law enforcement bodies. Clearly differentiate the responsibilities of the gendarmerie and judicial police. Coordination and cooperation between the Ministries of Justice and Interior is especially important. Provisions in a new criminal procedures law could define the role of the police and how they are to interact with other agencies and institutions in criminal investigations. All police officers should understand from their first day in uniform that they are expected to cooperate with prosecutors when the latter order arrests.
4. Clarify through legislation the functions and jurisdiction of the military prosecutor's office and military court, along the lines of Article 11 of the Criminal Code, stipulating that the military court deal exclusively with internal military matters. Article 11 defines military offenses as those involving military personnel and which concern discipline within the armed forces or harm to military property. Ordinary crimes committed by military personnel are to be tried in civilian courts.
5. Support the program of confiscating unlicensed weapons in Phnom Penh and the provinces but back it up by enforcement of prohibitions against illegal use of weapons whether they are licensed or not. Enforce prohibitions against personal use of assault rifles as stated in Subdecree 62 on Illegal Weapons and Explosives Control. Also enforce Subdecree 38, passed on April 30, 1999, covering the importation, production, sale, distribution, and use of weapons and explosives of all types.
6. Enforce Article 6 of the 1992 criminal code, calling for the police to observe the U.N. Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, which states that police must report to their superiors actions involving injury or death of suspects. Independent judicial inquiries should be conducted in regard to all such cases.
7. Create a national witness protection program to provide courts and police with funds and resources to guarantee the protection of witnesses willing to testify, improving the quality of evidence used in trials.
8. Conduct joint trainings for police and court officials to improve cooperation in implementation of criminal justice.
1. Initiate serious, independent, and thorough investigations — and prosecute those responsible — for hundreds of summary executions, assassinations, massacres, incidents of torture, and other serious human rights violations that have taken place since the founding of the Royal Cambodian Government in 1993.
2. Promote a genuinely independent judiciary by launching a program of judicial reforms that includes the following:
∙ Promptly pass the long-overdue Law on the Statute of Magistrates, which establishes procedures for hiring and disciplining court officials, sets educational requirements for appointment of new judges, and addresses issues such as conflict of interest and membership in political parties. In addition, set clear policies with regard to theretirement of judges and prosecutors.
∙ Reformulate the Supreme Council of Magistracy (SCM) as a neutral body, independent from the Ministry of Justice and political parties, so that it can set about the tasks laid out for it in the Constitution. Those tasks are to oversee the functioning of the judiciary, make judicial appointments, and take disciplinary measures over court officials. In order to ensure the separation of powers, require that once appointed to the SCM, members must resign from any active role in a political party.
∙ Empower the SCM to act forcefully and promptly in order to address issues of political pressure, intimidation or intervention on judicial matters by armed forces, and corruption. The SCM, which has met on legislative matters only once, should become more active and begin to meet regularly to address these issues, as should the Disciplinary Council of the SCM. The SCM's deliberations, particularly those regarding discipline of court officials, should be transparent, and clear mechanisms should be established for the public to complain about individual judges or prosecutors.
∙ Provide guarantees and implement practical measures to ensure the safety of judges so that intimidation and concerns about their personal security do not influence court decisions.
3. With regard to procedures for arrest, treatment of detainees, and trial, implement and enforce existing provisions of the 1992 criminal code, such as Article 12 (treatment of detainees), Article 13 (arrest and detention procedures), Article 14 (pre-trial detention), and Article 24 (provisions on evidence; prohibitions against obtaining confessions under duress).
4. Enforce legal prohibitions in the 1993 Criminal Procedures Law against out-of-court financial compensation for felonies and major criminal offenses. Police and local officials should not take commissions in settlements of any cases, civil or criminal. Prohibit any negotiations or compensation to be paid until after any state action is complete, i.e. the trial is over or the charges are dropped by the prosecution.
1. Repeal Article 51 on the Common Statutes on Civil Servants, which effectively grants impunity to police, military, gendarmerie, and civil servants who have committed criminal offenses. The military should also state clearly that soldiers are subject to prosecution in civil courts for criminal offenses.
2. Complete the drafting of laws, including a new law on criminal procedure, a law on civil procedure, a law on the statutes of magistrates, a civil code, a law on the organization and functioning of the Ministry of Justice, and a new criminal law to replace the 1992 criminal code drafted by the United Nations Transition Authority in Cambodia (UNTAC).8 These laws should be drafted in close consultation with members of civil society and in accordance with national and international human rights standards.
Administration of the Criminal Justice System
1. Increase salaries of court officials as one measure to reduce corruption. In a similar manner, increase the salaries of police, military and gendarmerie to address problems of corruption, lack of discipline, and low morale.
2. Provide technical and financial assistance to ensure that judicial officials and law enforcement officers arecompetent and properly trained. A functioning institute for the training of judges and prosecutors, providing follow-up courses for practicing jurists, would be one way to achieve this goal. A police academy could be established to train police in law and human rights.
3. Periodically rotate police and court personnel to different departments or geographical locations to reduce the possibility of corruption and nepotism.
4. Take immediate steps to discipline or dismiss court officials for failure to prosecute cases (using the SCM Disciplinary Council) and law enforcement officials for failure to investigate and report on cases.
5. Increase the number of trained and experienced lawyers and defenders through training programs. Support the Cambodian Bar Association and nongovernmental legal aid organizations that provide legal assistance to low-income people. The goal should be to have at least one qualified criminal defense lawyer in every province. No criminal trials should be held without access to competent counsel.
1. Support the work of local human rights organizations and the Cambodia Office of the High Commissioner for Human Rights so that they can continue to assist in monitoring and investigating reports of impunity.
2. Once a functioning and independent judiciary is in place, create a neutral investigation authority, possibly in the form of a National Human Rights Commission, that is truly independent of the government and mandated by law to investigate and follow up on human rights abuses. This entity should possess subpoena powers, the ability to compel testimony, and the ability to refer cases for prosecution to the courts. Commission members should have no connection to the government or political parties. This body should be empowered to submit legally admissible evidence to the court and to require the prosecutor to open or reopen an investigation. A subcommittee of the commission could act as an Office of Civilian Complaints, serving as an ombudsman by addressing specific complaints about the police, military, militia, gendarmes, and other government officials.
3. Members of the Consultative Group on Cambodia, the donor consortium, should establish a Rule of Law and Judicial Reform Working Group to evaluate the Royal Cambodian Government's progress in meeting all of the above objectives.
1 Marc Levy, "Pailin No-Trial Executions Stark Reminder of K.R. `Jungle Law,'" Cambodia Daily (Phnom Penh), December 22, 1998.
2 A commune consists of three to four villages.
3 The Cambodian Human Rights and Development Organization, or Association Droits de l'Homme Cambodgienne (Adhoc) and the Cambodian League for the Promotion and Defense of Human Rights, or Ligue Cambodgienne pour la Protection et la Défense des Droits de l'Homme (Licadho), are Cambodia's oldest and largest human rights organizations.
4 Human Rights Watch interview with Mao Chandara, chief of general staff, Ministry of Interior, Phnom Penh, April 13, 1999.
5 "Report on Requests to File Charges from Prosecutors of Provinces and Municipalities During 1998," Ministry of Justice, April 9, 1999.
6 Human Rights Watch interview with U.N. legal expert, Phnom Penh, March 1, 1999.
7 For this reason, at least one provincial judge keeps a machine gun in his office for protection.
8 The criminal code, passed by the Supreme National Council on September 10, 1992 during the mandate of UNTAC, is titled "Provisions Relating to the Judiciary and Criminal Law and Procedure Applicable in Cambodia During the Transitional Period."
This Web page was created using a BETA Version of HTML Transit 4.0.