Prime Minister Shinzo Abe
Cabinet Secretariat, Government of Japan
1-6-1 Nagata-cho, Chiyoda-ku
Tokyo 100-8968, Japan Fax: +81-3-3592-0179
Re: Your visit to Cambodia, November 16-17, 2013
Dear Prime Minister,
We write to you regarding your upcoming official visit to Cambodia and meeting with Prime Minister Hun Sen, the leader of the ruling Cambodian People’s Party (CPP).
We recall your January 28, 2013 policy speech in which you proclaimed Japan’s intention to pursue an international “diplomacy based on the fundamental values of freedom, democracy, basic human rights, and the rule of law.” We urge you to demonstrate your commitment to this policy by making these values a cornerstone of your discussions with Hun Sen and Japan’s relations with Cambodia, a country in which Japan has historically played a very important role.
Japanhas been a leading actor in Cambodia since the signing of the 1991 Paris Agreements on Cambodia, which mandated the creation of the United Nations Transitional Authority in Cambodiafor its implementation. Signatories to the Paris Agreements, including Japan, pledged to work to establish a democratic society based on the promotion and protection of human rights. Japan then took the lead in sponsoring the International Conference on Reconstruction in Cambodia and became the largest provider of development aid. The Paris Agreements and the new Cambodian constitution promised subsequent elections would be free and fair and would be carried out under a constitutionally guaranteed system of liberal democracy, based on political pluralism and respect for fundamental rights, including freedom of assembly and association, due process, equality before the law, and protection from arbitrary deprivation of property, as well as state and security force neutrality.
Despite promise after promise to Japan and other donors, the reality has been quite different. After losing the 1993 elections, Prime Minister Hun Sen and the CPP threatened civil war if they were not included in a coalition government. Since then, Hun Sen and the CPP have held four elections that were neither free nor fair. Hun Sen and his government have moved Cambodia back towards de facto one-party rule, while routinely violating human rights and providing impunity for perpetrators of nearly all serious abuses.
Your upcoming visit is an opportunity for Japan to turn your January speech into reality by making the promotion of human rights and democracy a top priority in relations with Cambodia. In this regard, we would like to bring to your attention matters related to elections, security assistance, the Extraordinary Chambers in the Courts of Cambodia, and overseas development aid.
Elections
As we said in our letter to you of October 23, 2013, the July 28 election was marred by fundamental structural flaws and serious irregularities that meant that it was neither free nor fair. Since our letter, further compelling evidence has been compiled by Cambodian and international election monitoring groups of irregularities related to voter registration. All of this has called into serious question the official outcome, according to which the CPP took 68 seats in the National Assembly to the 55 of the main opposition Cambodian National Rescue Party (CNRP). For these reasons Human Rights Watch and others have called for an independent investigation into the elections. The CPP has rejected such an inquiry. Instead, it has periodically used threats and violence against election-related and other protests.
We urgeJapan to join other countries in publicly calling for an independent, internationally assisted investigation into election irregularities. We urge you to discuss the modalities for such an investigation with your Cambodian interlocutors. To show Japan’s political impartiality, we also urge you to meet the leaders of the CNRP.
Failure to take the above steps would damage your stated goals of promoting freedom, democracy, human rights, and the rule of law. Indeed, your visit risks givinglegitimacy to the claim that the CPP won the July 2013 election and that National Assembly duly elected Hun Sen as the country’s prime minister, thereby undermining the right of millions of Cambodians to choose their own government through free and fair elections.
Security Assistance
We note that during October 2013theJapanese governmental Council of Local Authorities for International Relations (CLAIR) funded training in Japan by Japan Paramedical Rescue(JPR) to a contingent of Brigade 70 of the Royal Cambodian Armed Forces (RCAF). According to deputy brigade commanderSauyNarit, this is the first instance of provision of such assistance to RCAF. While the contingent benefitting from the training is designated as adisaster relief force, Brigade 70 has an infamous record of involvement in human rights violations, among other things being implicated in an attempt to assassinate political opposition leader Sam Rainsy, now president of the CNRP.
More broadly, the RCAF and police officer corps have a long history of partisanship on behalf of Hun Sen and the CPP, contrary to the spirit of the Paris Agreements and international human rights standards. For almost three and a half decades, they have been integral to a system that has empowered elements within their ranks to arbitrarily arrest, torture and kill perceived opponents with impunity. Military and police officers with a history of command responsibility for the most serious human rights violations have not been prosecuted but instead promoted on account of their loyalty to Hun Sen, making impunity and its protection a defining characteristic of Cambodia’s contemporary security forces.
In view of this, we are concerned that no procedures appear to have been put in place for vetting Cambodian security force units or individuals receiving government-funded assistance to ascertain whether they have been responsible for human rights violations. Even more seriously, we are concerned that such assistance may continue or even expand without due consideration being given to the prospect that it may further entrench impunity for past abuses and directly or indirectly encourage future human rights violations.
We therefore call on Japan to inform the Cambodian government that it will not continue to allow funding of assistance to the Cambodian military until such time that it can be determinedthat such support will not facilitate perpetration of human rights violations by RCAF as a whole or by specific RCAF units or individual officers benefitting from it.
We are also concerned that a private company owned and run by Japanese businessmen in Cambodia, AAP International, has been providing private assistance to the Cambodian police, evidently without any apparent human rights safeguards. We consider that such seemingly unconditional assistance risks complicity in human rights violations, and as such should be opposed by the Japanese government.
Extraordinary Chambers in the Courts of Cambodia
As you know, Japan is the biggest contributor to the Extraordinary Chambers in the Courts of Cambodia (ECCC),having provided more than US$79 million dollars, including the recently announced disbursement of $387,000 to the international side of the court.While the ECCC is assisted by the United Nations, it remains dominated by the Cambodian government. Japan is well-placed to insist that the government allow the court’s Cambodian and international personnel to adhere to international judicialstandards in their efforts to prosecute Khmer Rouge senior leaders and others most responsible for genocide, crimes against humanity and war crimes committed in Cambodia between 1975 and 1979.
In this regard, you will recall that article 28 of the June 2003 Agreement between Cambodia and the United Nations establishing the ECCC stipulates that should the Cambodian government cause the ECCC to function in a manner that does not act in accordance with international standards of justice, fairness and due process of law, the United Nations could “cease to provide assistance, financial or otherwise” to the court.These standards are elaborated upon in the United Nations Basic Principles on Independence of the Judiciary and the Bangalore Principles of Judicial Conduct, which specify in particular that the “judiciary shall decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or inferences, direct or indirect, from any quarter for any reason.”
The Cambodian government, which controls and directs the whole of the Cambodian judiciary, has not met these standards vis-à-vis the ECCC. Stalling tactics and obstruction led by Prime Minister Hun Senhave interfered with the ability of judicial officers to properly carry out their functions in accordance with Cambodian and international law, preventing speedy trials and improperly limiting the number of accused. As a result, the ECCC has thus far only fully tried one person: KaingGechEav, alias Duch, the chief of the notorious TuolSleng torture center, who had confessed to the crimes for which he was indicted in Case 001, was convicted, andsentenced to life in prison.
Two of the four elderly “senior leaders” indicted for genocide, crimes against humanity, and war crimes in Case 002 have died and or been declared unfit to stand trial. The two against whom proceedings have gone forward have only been tried on a few of the counts for which they were indicted, and finalization of the judgments in this trial remains far off. Whether they will ever be tried on other Case 002 counts and whether they will survive until further final judgments is highly uncertain.
The investigations of five additional Khmer Rouge suspects in Cases 003 and 004 have been publicly and repeatedly opposed by Hun Sen. One has now died, and the health of several others is precarious. A United Nations-nominated investigating judge is currently investigating remaining cases 003 and 004, attempting to ascertain – despite a lack of assistance by Cambodians assigned to the court by the government – whether some or all of the four suspects should be indicted for trial. But without government cooperation, it will be impossible to arrest and hold trials of any against whom there is sufficient evidence to indict.
Among the Cambodian government’s many delaying tactics has been not fulfilling its obligation to finance the salaries of ECCC personnel on its payroll, thus leading to industrial action by some of those staff. Following a recent international outcry, however, the government had begun doing so. This is welcome. However, it is now paying personnel not to cooperate in the investigations of Cases 003 and 004, thus undermining rather than facilitating the ECCC’s work, effectively providing impunity to all surviving Khmer Rouge leaders beyond the two on trial in Case 002.
To fight impunity for genocide, crimes against humanity and war crimes in Cambodia, Japan should publicly urge the Cambodian government to allow all ECCC judges, prosecutors and staff, Cambodian and foreign, to decide all matters before them completely free of government interference, direct or indirect. Unless this standard is upheld, there will continue to be questions about the purpose of continuing international United Nations involvement in and donor support for the ECCC.
Overseas Development Assistance
According to the Japanese International Cooperation Agency (JICA) in Phnom Penh, Japan provided Cambodia US$2.25 billion in overseas development assistance from 1992 to 2012 and is currently disbursing an average of some$120 million annually in such assistance (the Cambodian government puts the latter figure at $150 million). Among recentlyannounced assistance is a road-construction project to repair and expand a part of National Route 5 between Battambang and BanteayMeanchey provinces.
Our concern is that such funding be in accordance with the Japanese government’s obligation to respect and protect human rights, Japan’s 1991 charter on overseas development assistance, and the JICA policy guidelines on Environmental and Social Considerations.This applies equally to Japan as it governs the World Bank and Asian Development Bank, together with other member governments. It is essential that Japan’s assistance not contribute to or exacerbate human rights violations committed by Cambodian government administrative and security force authorities. For instance,government officials and security forces and their business associateshave been responsible for land-grabbing that is estimated to have adversely affected 700,000 Cambodians in the towns and countryside and has frequently involved forced evictions and government repression of anti-relocation protests.
Such issues have arisen in connection with past Japanese-assisted Cambodian government projects, notably theSpecial Economic Zone developed inside the PreahSihanouk Province Autonomous Port in the province’s Sihanoukville Municipality, now the site of significant Japanese private investment. Human Rights Watch’s review of events there between 2008 and 2012 indicates that while JICA and Japanese embassy representatives interceded on behalf of a number of local residents victimized by forced or otherwise illegal eviction, the problems that arose reflected a failure on the part of Japanese officials to take all necessary measures to protecthuman rights. In particular, they did not do enough to supportfull and effective consultation with and participation by residents and Cambodian civil society groups in the formulation and implementation of the project, and they relied on the very Cambodian authorities and bodies responsible for the abuses to remedy them, with the result that instead of receiving redress, some victims who protested were subjected to legal and other threats.
To help avoid such outcomes that contravene Japanese policy, we urge you to make it clear to your Cambodianinterlocutors that Japan considers that all involved officials have an obligation to undertake human rights due diligence with regard to all development projects. Japan itself must identify potential human rights impacts for every project it plans to fund, appropriately address all adverse impacts, continue to assess and address adverse human rights impacts throughout the life of the project as such impacts often emerge as the project advances, and work with the Cambodian government to remedy any human rights violations that emerge. This is also important when the Japanese government is working through the World Bank and Asian Development Bank. Where projects may result in relocation of residents, both Japan and Cambodia are bound to ensure that there are no forced evictions in violation of international law, and that people lawfully resettled receive sufficient,just and timely compensation, in line with the United Nations Basic Principles and Guidelines on Development-based Evictions and Displacement. This compensation should aim to enable people affected by projects to improve theirstandard of living, or at least to restore them topre-project levels.
We urge you to make it similarly clear that Japan considers that in order to achieve these objectives, Japan and Cambodia should ensure that people affected by development projects and concerned elements of Cambodian civil society enjoy their rights to be fully informed about, freely express their views upon, and be genuinely consulted about these projects, without fear of retaliation from any quarter. This recognizes the importance of civic participation, including by grassroots groups and advocacy organizations, in achieving sustainable development on the basis of respect for human rights and of social accountability.
Yours Sincerely, Yours Sincerely,
Brad Adams Kanae Doi
Director Japan Director
Asia Division
