Kingsley Abbott, An Overview of the Rule of Law for the Commission of Inquiry for Cambodia, 10 September 2022
The rule of law, as pronounced in the ICJ’s 1959 Declaration of Delhi and reaffirmed in the 2018 Tunis Declaration on Reinforcing the Rule of Law and Human Rights, is a dynamic concept for the expansion and fulfilment of which jurists are primarily responsible and which should be employed to safeguard and advance human rights. It is not just a technical instrument of governance. It is a normative concept, consisting of principles and correlative standards and subject to progressive development.
The rule of law is inextricably linked to - and interdependent with - the protection of human rights, as guaranteed in international law. There can be no full realization of human rights without the operation of the rule of law, just as there can be no fully operational rule of law that does not accord with international human rights law and standards.
This conception of the rule of law is reflected in global standards, such as the UN Human Rights Council’s resolution 36/12 on Human Rights, Democracy and the Rule of Law.
Some of the key principles that comprise the rule of law include the protection of human rights and the separation of powers in governance; presence of a pluralistic system of political parties and organizations; the independence of judges and lawyers; the right to a fair trial by a competent, independent, and impartial tribunal established by law; the principle of legality and legal certainty, including that law must be stated with clarity and intelligible to those whom it concerns; the functioning of a free, independent, and pluralistic media; and the principle of accountability and intolerance of impunity, particularly for serious crimes under international law, among others.
Unfortunately, these principles are absent in Cambodia.
The very notion of the rule of law is frequently misused by the Government in Cambodia. When members of the diplomatic community and senior UN officials meet government officials to express concern at the increasing misuse of the law, they typically receive an Orwellian legal lecture on the “importance of the rule of law”.
What is happening in Cambodia is the opposite of the rule of law, which is very different to “rule by law”.
I will highlight three interlinked facets underscoring how the rule of law has been repeatedly undermined in recent years: first, the absence of the independence and accountability of justice actors; second, the impunity enjoyed by perpetrators of gross human rights violations and the lack of effective remedies for victims and their families; and third, the shrinking of civic space, especially in the digital sphere, through laws that are patently incompatible with international human rights law and standards.
Independence and accountability of justice actors
In 2017, the ICJ produced a report in which we found that the “single largest problem facing the Cambodian justice system is the lack of independent and impartial judges and prosecutors”. The problem is two-fold: an endemic system of political interference in high-profile cases and an equally entrenched system of corruption in all others. Only in very limited instances at the local level – where lawyers have direct and informal access to judges – are cases potentially decided on the merits. And even if such instances, the outcome is often the result of behind-the-scenes negotiation. Simply put, the rule of law is virtually absent from the Cambodian justice system.
Five years later, this observation still rings true. Most recently, following its review of Cambodia’s compliance with the International Covenant on Civil and Political Rights, the Human Rights Committee registered its concern about the “persistent lack of an independent and impartial judiciary and about the high number of allegations of corruption within the judiciary”, in spite of the measures that Cambodia has taken to strengthen the independence of the judiciary. The Committee also noted during the review process how “some judges, prosecutors and court staff were openly members of the ruling party and that the courts were the weapon of choice for the ruling party in its continued targeting of its perceived opponents”.
For example, the President of the Supreme Court, Justice Dith Munty, who presided over the November 2017 dissolution of the main opposition party, the CNRP, is reportedly a member of the ruling Cambodian People’s Party (CPP) and sits on both its Standing and Permanent Committees.
The separation of powers, particularly between the judiciary and political branches of the government, is a core precept of the rule of law. A competent, independent and impartial judiciary is fundamental to the rule of law, particularly in respect of the administration of justice and for the effective legal protection of human rights. It is therefore essential both to the rule of law more generally, and specifically to the fulfilment of a State’s international legal obligations on human rights, that the independence, impartiality, integrity and competence of its courts and judges are guaranteed in law and secured in practice.
As set out in the UN Basic Principles on the Independence of the Judiciary, it's a core tenet of judicial independence 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 interferences, direct or indirect, from any quarter or for any reason.”
In its 2017 report, the ICJ noted that the problem of judicial independence has long been rooted in corrupt influence, both political and financial, which appears to be exerted at will over all judicial activities. A study by the International Bar Association has noted how “[t]rainee judges are asked for bribes in order to enter onto professional training and those judges who are members of [CPP] are favoured for appointments and promotions. It is widely acknowledged that court decisions are dictated by financial and political pressures on judges: cases in which the authorities have an interest are consistently resolved in their favour and in other cases, the party able to offer the largest bribe to a judge or clerk will almost certainly win the case, regardless of the merits.” Unfortunately, the Human Rights Committee’s observations in March 2022 on the corruption endemic within the judiciary reflects the sad reality that this deep-rooted problem is persistent.
Despite formal guarantees in domestic law and stated commitments to adhere to international standards, in reality, the de facto lack of an independent and impartial judicial system remains one of Cambodia’s central and enduring rule of law and human rights issues. For instance, the Cambodian government has asserted recently during its review by the Human Rights Committee that the independence of the judiciary was guaranteed and safeguarded by the Constitution and three laws: the Law on the Organization of the Courts, the Law on the Status of Judges and Prosecutors, and the Law on the Organization and Functioning of the Supreme Council of the Magistracy. The ICJ has called for a thorough review of the laws and proper consultation with the public and civil society “with a view to revising the drafts to ensure that they are in accordance with international standards”, in particular the separation of powers. Unfortunately, there was ultimately no consultation, and opposition lawmakers vowed, in vain, to seek amendments. Till this date, these flawed laws that are inconsistent with international law and standards remain on the books.
Furthermore, there is an absence of judicial and prosecutorial accountability for lack of adherence to basic fair trial standards. Cambodian lawyers face constant and consistent hurdles in their practice before the domestic court system. For instance, at the investigative stage, case files are almost exclusively shaped by prosecutors and are difficult for defence lawyers to access, and decisions of investigating judges contain little or no analysis based on the evidence. There is a high reliance on “confessions” in court, and it is common practice for the police to use various means of torture, other ill-treatment and coercion to extract statements. In cases involving political opponents and human rights defenders, there is always a presumption of guilt. In trials observed by the ICJ, defendants were asked “if you are not guilty then why did the police arrest you?” The recent June 2022 mass convictions of the 51 CNRP politicians and human rights defenders also appeared to be based on fundamentally unsound evidentiary bases, with reports that there were no clear links made between the evidence presented by the prosecution, each individual defendant, and each element of the charges.
Deficient aspects of judicial investigations should be subject to correction by trial courts, however this rarely, if ever, occurs. Investigations into instances of torture and ill-treatment of criminal suspects are rarely ordered, in contravention of Cambodia’s legal obligations. In the face of these difficulties, lawyers have little recourse, with complaints of judicial misconduct rarely succeeding. Recent cases involving human rights defenders and political opponents that the ICJ has observed have continued to raise serious concerns of the judiciary’s adherence to the right to fair trial. These cases include the conviction of activists from Mother Nature for “incitement” under articles 494 and 495 of the Criminal Code in May 2021, and the conviction of Kong Raiya, a youth activist formerly affiliated with the CNRP, also under articles 494 and 495 in June 2020.
Accountability of perpetrators of gross human rights violations and lack of access to effective remedies
A second aspect of the rule of law crisis in Cambodia is the rampant culture of impunity in relation to gross human rights violations perpetrated in the country. The political and human rights history of modern Cambodia is largely a story of impunity.
Human Rights Watch estimates that over 300 people have been unlawfully killed with impunity in politically motivated attacks since the Paris 1991 Paris Agreements. Recently, a French court issued arrest warrants for two senior Cambodian generals alleged to be responsible the grenade attack on an opposition political rally in Phnom Penh in March 1997 that killed 16 people and injured more than 150. The Cambodian government has failed to take action against those responsible for the grenade attack, despite there being evidence allegedly linking Prime Minister Hun Sen and his generals to the attack. This pattern of impunity – with human rights violations not being investigated effectively by an independent and impartial body – has continued to play out repeatedly even in recent years.
Perpetrators of gross human rights violations are held to account if, and only if, the government decides it is expedient to do so – which is to say, almost never, as it is almost always the case that the perpetrators of such crimes are members of, or somehow linked to, the government itself. The lack of accountability in Cambodia is inextricably linked to the government’s control of the judiciary.
An emblematic case of the use of the courts to ensure impunity is the assassination of prominent political commentator Kem Ley, who was killed against a backdrop of escalating attacks on civil society and the political opposition and Cambodia’s well-documented history of killings which are alleged to have had state involvement. Kem Ley was shot in a café at a petrol station in central Phnom Penh on 10 July 2016. The police quickly arrested Oeuth Ang as he fled the scene. According to the police, the suspect later “confessed” to the killing claiming his motive was an unpaid debt of $3000 Kem Ley owed him, a claim disputed by Kem Ley’s widow and Oeuth Ang’s wife.
On 23 March 2017, after a half-day trial hearing, which the ICJ observed, the Phnom Penh Municipal Court found Oeuth Ang guilty of the murder of Kem Ley and sentenced him to life imprisonment. The trial left unanswered many questions about the investigation which appears to have been seriously deficient. To date, there has been no independent, impartial and effective investigation to establish whether anyone else was involved in the killing. On 24 May 2019, Cambodia’s Supreme Court rejected Oeuth Ang’s appeal for reduction of sentence and upheld his life imprisonment term. The failure to address such deficiencies raises concerns about prosecutors’ priorities to secure a quick conviction rather than comprehensively investigating the case, including uncovering information about other possible conspirators who may have been involved. As of today, the Cambodian authorities have still failed to create an independent commission of inquiry or similar authority tasked with conducting an independent, impartial and effective investigation into Kem Ley’s death, despite repeated calls from civil society on this matter.
A more recent case is the killing of Sin Khon on 21 November 2021. Sin Khon was affiliated with the CNRP, and a suspect was quickly arrested and “confessed”. The Cambodian government has asserted that the authorities have investigated the crime thoroughly and that a suspect has been apprehended. According to the Phnom Penh Municipal Military Police, the suspect admitted that he had attacked the victim because he was allegedly angry with him for previously threatening to beat him and his elder brother. However, OHCHR has expressed concern over the inconsistencies between the official version of events offered by the authorities and information received by our office. They called for an independent and impartial investigation into this crime, and this call was also made by the UN Human Rights Committee in its concluding observations following its review of Cambodia on its compliance with the ICCPR. It remains to be seen whether there will be a thorough, independent and effective investigation into the suspicious circumstances surrounding Sin Khon’s death would play out, but the ICJ is gravely concerned that the pattern of impunity and lack of accountability that it has observed in other politicized trials will recur in this case.
These two cases are just two of the numerous cases of the lack of accountability for gross violations of human rights, many of which involve human rights defenders and perceived political opponents of the government. These demonstrate the government’s intolerance towards dissent and opposition, which has also been evinced by its concerted efforts to shrink the space for free expression and information, particularly in the digital sphere in recent years.
Shrinking of civic space through laws that are not compliant with Cambodia’s human rights obligations
The rule of law is not only about passing and implementing laws, but rather ensuring they are adopted and applied in accordance with international human rights law and without discrimination, including discrimination based on political or other opinion. The rule of law and human rights are inextricably intertwined: there is no rule of law within societies if human rights are not protected, and human rights cannot be protected in societies without a strong rule of law. In 2019, the Human Rights Council adopted a Resolution 42/37 urging the Government of Cambodia to make continuous efforts to ensure the rights to freedom of expression, peaceful assembly and association and an environment conducive to the conduct of political activities by all political parties under democratic principles and the rule of law.
Unfortunately, in recent years, the Cambodian authorities have continued adopting and subsequently enforcing laws that are patently incompatible with its human rights obligations, especially the right to freedom of expression and information, in a concerted effort to muzzle dissent and shrink civic space.
An emblematic example of a fatally flawed law is the National Internet Gateway Sub-Decree, promulgated by the Cambodian government on 16 February 2021. The Sub-Decree requires “all internet traffic to be routed through a regulatory body charged with monitoring online activity before it reaches users”. Article 6 of the Sub-Decree empowers operators to block and disconnect all network connections or content deemed to “affect safety, national revenue, social order, dignity, culture, traditions and customs”, in collaboration with the Ministry of Post and Telecommunication, Telecommunication Regulator of Cambodia and other responsible authorities. These provisions are likely to be used to arbitrarily interfere with the rights to freedom of expression and information, and right to privacy, in a manner incompatible with the principles of legitimate purpose, legality, necessity and proportionality under international human rights law. The powers vested to executive bodies also raises serious concerns of State overreach without adequate independent oversight, in spite of the requirement under human rights law that content regulation in digital spaces must be undertaken pursuant to an order by an independent and impartial judicial authority.
The Cambodian authorities have invoked laws that are not human rights compliant to target and sanction social media users, human rights defenders, journalists, media platforms, women and perceived political opponents, in violation of the rights to online freedom of expression and information, privacy, peaceful assembly, health, fair trial and non-discrimination. Efforts to shrink online civic space have intensified particularly during the COVID-19 pandemic, as the State attempted to suppress any criticism and dissent towards its mismanaged response to the COVID-19 pandemic. Besides the National Internet Gateway Sub-Decree, other examples of new flawed laws that were passed in response to the COVID-19 pandemic include the Law on the Management of the Nation in Emergencies and Law on Preventive Measures Against the Spread of COVID-19 and other Severe and Dangerous Contagious Diseases. These vague and overbroad laws have been applied to restrict expression related to the COVID-19 pandemic, under an overly expansive justification of curbing “false information” in order to protect public health. For instance, it was reported in April 2021 that TikTok users had been arrested and charged under the COVID-19 Preventive Law for spreading allegedly “false information” about COVID-19 vaccines. In July 2021, Reporters Without Borders reported that Kao Piseth, a journalist, could potentially face up to five years in prison under the same law for making comments about COVID-19 vaccines.
Journalists and media platforms have also been targeted and sanctioned for their reporting on the COVID-19 pandemic, which stands to arbitrarily undermine the crucial role of the media in monitoring the operation of and facilitating accountability in health systems. At least five media outlets have had their media licenses revoked by the Cambodian government for their reporting on the COVID-19 pandemic, and these decisions do not appear to be subject to independent judicial review. Judicial review of executive actions that undermine human rights is a cornerstone of the rule of law. The ICJ also documented at least three journalists who faced arbitrary legal charges in relation to their online reporting on the COVID-19 pandemic, under vague charges of “incitement” and obstructing enforcement measures under the COVID-19 Preventive Law.
Conclusion
The above is a brief overview only three of the many pressing laws, policies and practices that seriously undermine the rule of law in Cambodia. Perpetrators of gross human rights violations – including State actors and those affiliated with the State – continue to enjoy impunity while victims, especially the most vulnerable and marginalized, remain without effective remedies and reparations. Impunity and lack of redress dehumanizes victims and acts as an impediment to the cementing of democratic values and the rule of law. Serious legal reform of institutions, particularly the judiciary, and legal frameworks that are not compliant with human rights law and standards is long overdue.
Unfortunately, the emblematic cases we have highlighted represent just a small fraction of the widespread human rights violations that continue to plague Cambodia, and it is the hope of the ICJ that this Commission of Inquiry will provide the chance to victims and their representatives to tell their stories and to demand justice and accountability.