Preface and Supplements to Theary Seng Testimony for the Rule of Law of the Commission of Inquiry for Cambodia, 10 September 2022

Thank you Mr. Abbott for your statement. 

The international “rule of law” standards that you have just explained take on special significance in the context of long-standing and systemic abuses that the Hun Sen government has been carrying out in Cambodia for many years. With Kingsley Abbott’s explanations of international rule of law standards in mind, here are a few special points that need to be made related to Hun Sen’s rule of law violations. These are the main “takeaway points” that you should focus on related to the Hun Sen government’s rule of law abuses: 

1. The Hun Sen government claimed before the United Nations Human Rights Committee in their March 2022 compliance review session that the arrests, criminal prosecutions, and long-term imprisonments of members of the political opposition and critics of the government, should be treated as consistent with rule of law standards because they occurred using court processes and applying provisions of the criminal law statutes. This argument was rejected. The UN made it clear that the rule of law requirements are not satisfied by using the cloak of the courts and the law to try to justify core violations of international human rights standards. Major human rights abuses cannot be justified or excused simply by hiding behind a politically controlled judicial process. Rule of law means more than just using the legal system as a basis for violating essential rights. 

2. The Hun Sen government’s long-standing campaign of repression must be recognized as being completely inconsistent with rule of law standards because it violates numerous provisions of the International Covenant on Civil and Political Rights and many other universally recognized international human rights standards and instruments. The fact that these violations, such as the closing down of the main political opposition party, are carried out with the help of government-controlled courts and judges does not convert these violations into lawful actions. The shutting down of major independent media outlets, the mass criminal trials of leaders of the political opposition and other critics of the government, the widespread arrests, criminal prosecutions, and brutal attacks on those who speak out against the government and its policies — all of these major human rights abuses must be recognized for what they really are — gross violations of international rule of law standards. 

3. A key element of international rule of law principles is accountability. That means that those government officials responsible for major abuses have to be held responsible for their violations. The pursuit of accountability for the Hun Sen government’s practices has already started, with the determination just a few months ago by a French criminal court that there is substantial enough evidence to bring criminal charges against Hun Sen and the principal leaders of his Personal Bodyguard Unit in relation to the 1997 grenade attack on a rally of the main political opposition party that killed 16 participants and wounded many more. Based on the on-site investigative findings by the US Federal Bureau of Investigation team, the French court found that Hun Sen and his top Generals helped to plan the attack, facilitated entry to the rally by the grenade throwers, and then facilitated their escape, even housing them in the Personal Bodyguard Unit’s military barracks. The French court scheduled a criminal trial of the two military Generals heading Hun Sen’s Personal Bodyguard Unit at that time, but was unable to file charges against Hun Sen because he enjoys what the courts refer to as “head of state immunity” while he remains in office as Prime Minister. 

Nothing better exemplifies and explains the severity and widespread nature of the rule of law violations taking place under the Hun Sen government than the decision of the Mass Criminal Trial Court that was delivered on 14 February, condemning the lead defendant in that case, Theary Seng, to six years imprisonment for conspiring to commit treason and encouraging civil unrest for expressing her views critical of the government on Facebook. We deeply regret that Theary Seng and the other 138 defendants in the Mass Criminal Trial have been subjected to this persecution, and are being unjustly imprisoned for political reasons as a result. We hope the international community will rise up with universal and forceful objections and condemnation of these extremely serious rule of law violations. 

Just two days before her arrest and imprisonment, Theary was able to provide her testimony to the Commission of Inquiry for Cambodia that identified in the very clearest and most dramatic terms why the Mass Criminal Trial is unlawful, and violates a wide range of rule of law and international human rights standards. Listen carefully to Theary’s “last words” delivered before her arrest and imprisonment. They tell the story of why the Mass Criminal Trial acted unlawfully in very concrete terms. Theary identified many of the specific international law standards that the Hun Sen government has violated as part of its effort to eliminate the political opposition, so as to remain in power beyond its current 37 years without meaningful public criticism and civil society activities that might threaten Hun Sen’s ability to stay in office.  

Among the major rule of law and human rights abuses she describes in the way the Mass Criminal Trials have taken place are: 

1. Failure to maintain independence of the court from political influence and control – From start to finish, the Mass Criminal Trial was designed to punish and repress the political opposition. That was a politically motivated purpose inconsistent with the principle of the independence of the courts from government control; 

2. Extensive due process violations that made a fair trial impossible, including failing to provide defendants with proper notice of the proceedings; not providing adequate information on the charges that were made; and, not allowing them to be effectively represented by counsel of their choosing. The “mass” nature of the proceedings, and the fact that so many were conducted on an in absentia basis, contributed to the due process abuses; 

3. Violations of basic human rights protections, such as freedom of expression and freedom of association, that were especially targeted for criminal prosecution as part of the campaign to control and suppress civil society activities; and 

4. Discriminatory application of the criminal laws, with prosecutions especially targeted on leaders and members of the leading political opposition party.

As the United Nations Human Rights Committee noted at their hearing on Cambodia just a few months ago on March 9-11, the Hun Sen government has “weaponized” its judicial and law enforcement systems to suppress the political opposition and other critics of the government. 

We hope this latest example of serious rule of law abuses will produce an international reaction that will force the Hun Sen government to re-evaluate and over-turn Theary Seng and the other defendants’ conviction and imprisonment and end these politically motivated prosecutions and imprisonments on a more general basis.