HUMAN RIGHTS, JUSTICE AND TOXIC WASTE IN CAMBODIA
I. SUMMARY AND RECOMMENDATIONS
II. BACKGROUND: A TOXIC TRADE
How It Got There: The Taiwan Side
How It Got There: The Cambodian Side
III. SCAVENGING AND SICKNESS
Exposure to the Waste
Sickness and Death
IV. THE DEMONSTRATIONS
Public Anger Mounts
Protests: Day 1 (December 19)
Protests: Day 2 (December 20)
V. ARRESTS IN CONNECTION WITH THE DEMONSTRATION
Imprisonment and Pre-trial Release
The Case against Kim Sen and Meas Minear
The Role of Public Opinion Newspaper
VI: TOXIC WASTE: THE RESPONSE
Investigating the Importers
The Waste: Analysis and Preliminary Clean-up
Sihanoukville Deaths and Sickness
Reports of Sea Dumping
Economic Effects of Importation
In November 1998, nearly 3,000 tons of Taiwanese toxic waste were dumped in a field in the southern port of Sihanoukville. At the time, there was no law banning such dumping, but Minister of Environment Mok Mareth said publicly and repeatedly that toxic waste imports were prohibited in Cambodia and a national policy to that effect was in force.
Dumped in an open field, the waste was scavenged by poor villagers, many of whom later complained of sickness; one quickly died. The Cambodian leadership, expressing outrage, promised a thorough investigation. Local people panicked: thousands fled the city. Others in Sihanoukville exercised their constitutional rights and in December held two days of public demonstrations, blaming government corruption for the presence of the toxic material. Even some local officials told Human Rights Watch they believed that demonstrations were warranted, provided they were lawful and peaceful.
The demonstrators did not obtain permission to protest publicly, however, and when some of them grew violent, ransacking several buildings, police made several arrests. The local authorities sought to blame incitement of the riots on two human rights defenders, Kim Sen and Meas Minear, staff members of the Cambodian human rights group Licadho, or Cambodian League for the Promotion and Defense of Human Rights. Arrested in December, the two were held for a month and charged with committing robbery and property damage. No convincing evidence has been presented against them, but they still face up to ten years in prison if convicted.
The arrests of Kim Sen and Meas Minear served to divert attention from the cause of the demonstrations and sent a chilling message to environmental activists and other nongovernmental groups. They provide another example of the authorities' longstanding antagonism towards human rights groups. At the same time, the judicial process against those responsible for the public health menace falls short of providing the thorough investigation and accountability promised by the Cambodian government and ensuring that the necessary checks and balances are put in place to prevent new cases of dumping.
On the Taiwan side, the waste export was illegal, according to environmental authorities, but in Cambodia, the importation of the waste was almost certainly approved, as the prime minister himself has noted, by senior government officials, who are widely accused of having accepted bribes. Importation and environmental regulations are inadequate, as are scientific technology and expertise, to cope with issues such as toxic waste. Most significantly, there was no law that defined, restricted or prohibited hazardous waste imports.
As this report will illustrate, the Cambodian government appears to bear some responsibility for the dumping and the resulting violations of economic and social rights that followed. While Cambodia did not at the time have a law banning the import of toxic waste, there was a 1996 law containing penalties for acts which cause Adanger to human bodies or lives, to private property, to the environment, or to natural resources. The arrest of one Cambodian importer, the filing of preliminary charges against three government officials under this law, and the temporary suspension of one hundred other officials indicate some effort on the part of the Hun Sen government to act responsibly and prosecute the perpetrators. There is concern, however, that the three officials charged may be scapegoats. The real test, therefore, will be whether investigations by the environment and finance committees of the National Assembly, now underway, into how the dumping happened, including serious allegations that high-level corruption was involved, will be thorough and fully transparent, with the results made public.
The dumping of toxic waste in Cambodia illustrates the linkage between social and economic rights and political and civil rights. To defend their right to health, Cambodians need to have the ability to demand restitution for perceived violations of that right, both through exercise of their rights to freedom of assembly and expression, as well as through a functioning legal system, free of political influence, that will allow them to press claims. In that context, human rights defenders need to be able to monitor possible rights violations free of harassment or intimidation. The authorities violated the rights of human rights defenders in this case by detaining them arbitrarily and also by not allowing pre-trial release until after they had been detained for a month, thereby treating them more harshly than the officials arrested for permitting the importation of the toxic waste in the first place.
The government, in acknowledgment that the waste dumping was unacceptable and counter to government policy, moved to order the removal of the Taiwanese waste from Cambodia. The government also, in late April 1999, approved a sub-decree which unequivocally bans the import of toxic waste in the future.
A month-long Human Rights Watch investigation in Sihanoukville and Phnom Penh has found that:
Kim Sen and Meas Minear are being prosecuted for actions that were well within their human rights mandate. Their only Acrimes were to provide information on human rights and the law to people who requested advice on how to protest against the toxic waste and to be on the spot when the demonstrations took place in order to monitor any human rights violations that might occur.
$ Kim Sen and Meas Minear's legal rights have been repeatedly violated. For instance, their arrests were unlawful, as no arrest warrants were produced. Their arrests and detention were improper, as the Court of Appeal has since confirmed, because the Sihanoukville court did not first review the evidence against them. Nevertheless, the charges against them have not been dropped, although the two are no longer in detention.
$ At least two alleged demonstrators who were also arrested were tortured in police custody.
$ There is confusion over the precise number of people arrested during the demonstrations, and what happened to them.
$ It appears virtually impossible that Kim Sen and Meas Minear can receive a fair trial from the Sihanoukville court.
$ The government has so far failed to live up to promises to thoroughly investigate the importation of the waste. Despite the reported temporary suspensions of some one hundred suspected officials, the results of any government internal investigation into this case have not been made public.
$ The waste dumping endangered the right of Sihanoukville's residents under international law to the highest possible standards of physical and mental health.
Human Rights Watch recommends that the Cambodian government:
Recognize and Respect the Rights of Human Rights Defenders
$ The charges against Kim Sen and Meas Minear, as well as one of their fellow accused, market vendor Khieu Piseth, who seems to have been arrested solely because of his contact with the Licadho staff, should immediately be dismissed.
$ Cambodian government leaders and, more importantly, the Sihanoukville authorities should publicly and unequivocally state that Kim Sen and Meas Minear are able to resume their human rights work in Sihanoukville, free from intimidation or reprisals.
$ The government should uphold and respect the recently adopted U.N. Convention on the Rights and Responsibilities of Individuals and Organizations to promote and protect human rights. Adopted by consensus by the U.N. General Assembly on December 9, 1998, this convention includes specific responsibilities of member States to protect the rights of human rights workers.
Promote the Rule of Law and the Right to Judicial Independence and Accountability
$ The Sihanoukville police should make publicly available a list of the names of all people detained during the demonstrations so that all those who were arrested can be accounted for. More generally, the police should keep a central register of detainees available for inspection.
$ The National Assembly, supported by the executive branch and King Norodom Sihanouk, should urgently move to pass all necessary laws to allow the Supreme Council of Magistracy and the Constitutional Council, Cambodia's highest legal bodies, to begin functioning according to their constitutional obligations. Only when the appropriate constitutional institutions are functioning can the rule of law, and the necessary standards of conduct for prosecutors and judges, begin to be upheld.
$ The Ministry of Justice should make public the findings of its internal inquiries into the Sihanoukville court's handling of the Kim Sen and Meas Minear case and submit this information to Cambodia's Supreme Council of Magistracy, the constitutional body responsible for investigating alleged misconduct by prosecutors or judges.
$ The Ministry of Justice and the Supreme Council of Magistracy should launch formal investigations to determine whether Sihanoukville court officials have acted in violation of their professional responsibilities and duties. If so, the officials should be disciplined.
Safeguard the Right to Environmental, Health and Livelihood Protections
$ Cambodia's Ministry of Environment should be encouraged in its efforts to draft legislation and sub-decrees (required under the 1996 environment law) on air, water and land pollution. Such draft laws and regulations should be approved swiftly by the executive and legislative branches of government.
$ Recognizing that the Sihanoukville case is unlikely to be unique, the Ministry of Environment should launch an urgent investigation to identify and investigate other possible industrial waste sites in Cambodia that may pose health risks. Access to all records held by other government departments, such as Customs, should be provided in this regard.
$ The government, in consultation with independent experts and organizations, should ensure periodic medical surveillance of persons exposed to the toxic waste in Sihanoukville. Any evidence of medical problems that may be attributable to the waste should be urgently and independently verified, and the government should provide necessary care and treatment for those affected, with particular attention to pregnant and lactating women. The company responsible for the waste shipment, Formosa Plastics Group of Taiwan or its subsidiaries, should not be given the final say in diagnosis and medical treatment.
$ In the interests of government accountability and prevention of further such imports, the National Assembly's environment and finance committees should actively continue their investigations into the toxic waste importation. All government departments and staff should fully cooperate with these inquiries, which should be conducted in a public manner.
$ The Cambodian government should actively consider becoming a signatory to the 1989 (Basel) Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal. They should also consider signing the related Basel Ban, which aims to ban hazardous waste trade from industrialized to developing countries.
As a matter of principle, Human Rights Watch supports the right of every individual who was harmed by the toxic waste shipment to restitution for the injury to their right to health. We understand that both calculating such compensation and establishing the right to it on an individual basis may be logistically and legally difficult. For these reasons, Human Rights Watch urges the Cambodian government and Formosa Plastics to consult with the communities most exposed to the waste in order to provide restitution on a group basis in some acceptable form, such as the provision of a sustainable, functioning community health center or another rural institution which would improve living standards. Such an immediate measure should be without prejudice to individual claims or the liability of the government or the company.
Human Rights Watch recommends that the international community and foreign donors, in particular members of the donor consortium known as the Consultative Group on Cambodia, which in February 1999 pledged U.S.$470 million in aid, and individual international and nongovernmental organizations operating in Cambodia:
Support the Strengthening of Human Rights Protections in Cambodia
$ Exert pressure on the Cambodian government to insist that the charges against Kim Sen, Meas Minear and Khieu Piseth be dropped, and that any trial of others arrested in regard to the demonstrations be fair, transparent, and procedurally correct.
$ Ensure that the state of human rights and the rule of law in Cambodia be included among issues to be critically reviewed at the Consultative Group's quarterly meetings with the Cambodian government. In particular, the government should be left in no doubt that blatant persecution of human rights workers and interference in the judiciary by government officials will not be tolerated by donors.
$ Make aid disbursements conditional on the establishment of the Supreme Council of Magistracy and the Constitutional Council as independent, effective, functioning organs. Continued delays in the proper establishment of Cambodia's highest judicial institutions will only perpetuate the nation's difficulties in instituting the rule of law.
Insist on Environmental Protections
$ Continue to provide effective support and pressure for the government to effectively tackle Cambodia's chronic environmental problems. The toxic waste issue can and should be used to highlight the need for legislative and practical environmental protections in general.
Human Rights Watch recommends the following to the government of Taiwan:
Protect Fundamental Social and Economic Rights
_ Move, as a matter of priority, to meet all the requirements of the Basel Convention that regulate the export of hazardous waste. If, as a non-member of the U.N., Taiwan is unable to sign the convention, the government should independently act to pass domestic legislation and sign bilateral and multilateral agreements in line with the convention.
_ Review Taiwan's environmental laws and regulations, and the penalties contained in them, to ensure that they are a sufficient deterrent to companies and organizations that may be tempted to breach them.
_ Actively encourage Formosa Plastics Group, one of Taiwan's leading and most high-profile conglomerates, to provide some form of community compensation to the Sihanoukville villages closest to the waste dumpsite, as outlined above.
Human Rights Watch notes that it repeatedly sought Formosa Plastics' comments on this report. On May 4, C.T. Lee, the president of Formosa Plastics Corporation, declined our offer to comment but thanked Human Rights Watch for alerting him to the report's publication.
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