Letter Response To The United Nations Human Rights Committee

Samuel Sontag
Legal Assistant, Commission of Inquiry for Cambodia

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Dear Members of the Committee,

Congratulations on the conclusion of the third ICCPR review for Cambodia. It was my honor to present the Commission of Inquiry’s findings at last Wednesday’s formal briefing, and to attend last Friday’s informal briefing session. We have been closely monitoring the review, and appreciate the Committee’s incisive questions and challenges to the government’s claims. As you prepare your concluding remarks, we hope you will consider some final interventions from the perspective of the Commission of Inquiry. Specific, issue-oriented comments are provided below.   

We hope that you will give special attention to four core issues that the Chair and Member Bulkan stressed in their final remarks at the 11 March session, namely:   

1. Many of the statements made by government officials before the Committee were not consistent with the findings of respected international monitoring groups like Human Rights Watch, and did not reflect a plausible interpretation of international standards;

2. That the government’s claim of a popular, democratic mandate for one-party rule is indefensible in light of the fact that 40% of Cambodian voters supported the political opposition before the Cambodian Supreme Court banned it in what amounted to a judicially facilitated coup; 

3. That the government’s claim that the exercise of fundamental freedoms, like the freedom of expression, can be restricted by vaguely-worded laws that prohibit conduct that could threaten “solidarity,” or “national revenue,” are not consistent with international law; and

4. That “independence of the courts” and “rule of law” standards are not satisfied by the mere recitation of the legislative or jurisprudential basis for actions in violation of fundamental rights. These exercises of “autocratic legalism” are no more than impunity under color of law. As Cambodia has incorporated international human rights treaties into its constitution through Art. 31, these actions in violation of Cambodia’s treaty obligations are illegal under both international and domestic law.

The Commission of Inquiry also respectfully recommends to the Committee that it establish a follow-up mission to Cambodia, to ensure compliance and gather further information following this session. As Member Kran’s research emphasizes, follow-up missions can be highly effective in ensuring implementation of Committee recommendations. Given the government’s failure to appreciate basic precepts of the international human rights framework, we believe such a mission is essential to ensure that the Committee’s recommendations hold force. 

Legislative restrictions on civil society

1. The Internet Gateway law represents a dramatic escalation of government surveillance and control of speech in clear violation of Articles 17 and 19(3) of the ICCPR, and basic principles of legality and proportionality. We noticed that the government representative from the Ministry of Information failed to mention the Gateway in his responses yesterday. Though its implementation has been delayed, allegedly due to technical challenges, it was originally meant to be implemented in 2020, and the government certainly has clear plans for its intended application that should be shared with the Committee.

2. The recently enacted state of emergency law, that, if activated, would grant the government broad powers in violation of protected rights. In its response to the List of Issues, the government argued that the law conforms to the ICCPR by skirting the explicitly non-derogable protections under Art. 4. But as the Committee has clarified in General Comment 34, signatories are still obliged to protect freedom of expression and other essential rights whose derogation never satisfies the principle of necessity. 

3. The Inter-Ministerial Prakas No. 170 has been used to restrict disfavored content, and allows for regulation based on content “considered as incitement” or “breaking solidarity” in violation of the principle of legality.

4. The Law on Preventive Measures has been used to target and arrest social media users and a journalist for critical comments on Cambodia’s vaccine campaign under its “obstruction of implementation” measure. The Office of the High Commissioner has also taken note of the abuse of Covid measures to suppress labor action, including the recent strike of the NagaWorld casino employees. Employees were detained for “obstructing implementation” despite having complied with government testing requirements, and being ordered to isolate following negative tests counter to government policy. There is also video evidence showing serious injury to one detained worker. 

5. The Incitement to Commit a Felony or Disturb Social Security laws (Art. 494 and 495) have been used to target leaders of civil society, including labor leader Rong Chhun, and members of the environmental group Mother Nature. 

6. The Lèse-Majesté law violates the ICCPR by providing for “more severe penalties solely on the identity of the person that may have been impugned.” General Comment 34).

Restrictions on media 

1. Journalists and media outlets have been targeted with widespread violence and forced closure. A long pattern of violence against journalists has escalated since 2017, with 31 journalists arrested and at least 72 harassed in 2020 alone. 

2. Media outlets’ licenses have been arbitrarily revoked based on claims of incitement (see ICJ report, para. 37). 

3. Others have been forced to close due to excessive taxation, likely because of critical coverage of the government. 

4. The impact of these targeted closures exacerbates the broader chilling effect of vague and arbitrary restrictions on speech enabled by the National Internet Gateway, lese majeste law, criminal libel laws, ‘State of Emergency’ Law, Inter-ministerial Prakas, and Law on Preventive Measures discussed above. 

5. It is abundantly clear that the government of Cambodia fails to recognize the value of a free press. We found the way the representative from the Ministry of Information described the role of the press to be telling. He said that “journalists are ‘indispensable’ in channeling information from the royal government to the people and from the people to the royal government.” That, needless to say, is not the role of the press in a free society as recognized under international law.

Presence and participation of opposition parties

As you know, Prime Minister Hun Sen has a long history of using violence to maintain his rule. As Member Bulkan noted in today’s session, the recent elimination of the political opposition represents an escalation of autocratic impunity, not a popular mandate for one-party rule.

1. Only weeks ago, a French court concluded that there was sufficient evidence to proceed with the trial of two of the Prime Minister’s bodyguards for a 1997 grenade attack on the political opposition. 

2. The CPP has effectively established one party rule in Cambodia, controlling all 125 seats in the National Assembly since the Supreme Court banned the opposition CNRP prior to the 2018 election. 

3. Opposition leader Khem Sokha has been tried on treason charges. 

4. Prime Minister Hun Sen has openly advocated violence to maintain CPP rule. Before the 2017 local election, in which the opposition made significant gains, Hun Sen equated peace with CPP rule, and declared that, in order to protect the people, “we are willing to eliminate 100 or 200 people.” 

Anti-Corruption Unit

1. The Ant-Corruption Unit’s activities, including courtroom monitoring, raise serious concerns about judicial independence and separation of powers. 

2. Though, in its response to the list of issues, the government asserts that high-ranking government officials must declare and report assets to the ACU (Response to List of Issues para. 5), recent reports suggest this practice may have been recently discontinued. If that is indeed the case, the Unit’s role is increasingly suspect.

3. In response to the Special Rapporteur’s conclusion that corruption in the judiciary was widespread, the government's only defense was that the Rapporteur was relying on third-party metrics. Response to para. 58 of Special Rapporteur report.

We look forward to observing the concluding session and to your closing remarks and recommendations. Please feel free to remain in contact with the Commission, and to reach out for any additional information we may provide. We deeply appreciate your careful consideration of these issues.

Watch the 134th Session, Human Rights Committee (CCPR)
9 March 2022
10 March 2022
11 March 2022