Abstract
The human rights situation in Cambodia is in many ways unique and different from other countries because of the multidimensionality of the underlying issues. The 1970s and, particularly, the regime of the Khmer Rouge have deeply influenced Cambodian society to this day. The Khmer Rouge is responsible for the genocide, in which approximately two million Cambodians were killed in the short period from 1975 to 1979. It is remarkable that despite this traumatic experience—and while the Khmer Rouge has been removed from power almost 40 years ago—only modest progress has since been made regarding the implementation of international human rights. The law is not the problem. The Cambodian Constitution includes a list of constitutionally guaranteed rights, and Cambodia has ratified the most important international human rights treaties, including the following:
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International Covenant on Civil and Political Rights;
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International Covenant on Social, Cultural and Economic Rights;
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Convention on the Elimination of All Forms of Discrimination Against Women;
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Convention on the Rights of the Child;
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Convention on the Prevention and Punishment of the Crime of Genocide;
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Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment;
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Convention on the Elimination of All Forms of Racial Discrimination.
Any views expressed in this paper are those of the author in his private capacity only.
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Notes
- 1.
The Cambodian constitution has been drafted with heavy support and under the influence of the United Nations Transitional Authority in Cambodia (UNTAC) in 1992/1993; it is available at http://www.wipo.int/edocs/lexdocs/laws/en/kh/kh009en.pdf. Accessed 11 Nov 2017.
- 2.
Buergenthal identifies the mentioned treaties as the core international human rights treaties, see Buergenthal (2007), para 11.
- 3.
This stands in contrast to the concept of the universality of international law. This concept reflects the conviction that there is, or should be, a common value system that governs all humankind (see Nollkämper (2011), para 5). This substantive meaning of universality has in part been translated into positive international human rights law, which before codification were part of customary international law (ibid, para 6). Therefore, the conception of human rights includes that every individual has legitimate claims against his or her society for the respect and guarantee of defined freedoms and benefits. See Henkin (1989), p. 10.
- 4.
For an in-depth analysis of the debate see Davis (1998), p. 109.
- 5.
For an analysis of these claims see Donnelly (2013), p. 72 f.
- 6.
Vienna Declaration and Programme of Action, para I. 1.
- 7.
The Vienna Declaration emphasizes that “all human rights are universal, indivisible and interdependent and interrelated […]” and that “while the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, it is the duty of States, regardless of their political, economic and cultural systems, to promote and protect all human rights and fundamental freedoms,” see Vienna Declaration and Programme of Action, para I. 5.
- 8.
See for example the ASEAN Human Rights Declaration, Association of Southeast Asian Nations (2013).
- 9.
Menzel (2014), p. 77.
- 10.
Taing (2014), p. 125.
- 11.
See also Taing (2014), pp. 124–125.
- 12.
UN Doc CERD/C/292/Add.2, 7, the report goes to state that “however, they provide a basis for the development of national legislation, such as that pertaining to the observance of a protection of human rights […].”
- 13.
Constitutional Council, decision of 10 July 2007, Dec No 092/003/2007. http://www.ccc.gov.kh/admin/uploads/dec_2007_92.pdf. Accessed 10 Nov 2017.
- 14.
Background of the decision was a petition from civil society organizations with the aim of reducing custodial sentences for persons under the age of 18. The Law on Aggravating Circumstances for Felonies allegedly was in violation not only of the Cambodian Constitution but also the Convention on the Rights of the Child. The Constitutional Council upheld the respective law, but the Constitutional Council also ruled that it could not have been the legislature’s intention to violate the Convention on the Rights of the Child.
- 15.
Constitutional Council, decision of 10 July 2007, Dec No 092/003/2007, 2. See supra fn 13.
- 16.
This seems also in line with Art 26 of the Constitution, which can be interpreted in a way that parliamentary approval and the king’s ratification is sufficient to make international treaties domestic law.
- 17.
The decision does, however, not clarify the status of customary international law in the domestic legal hierarchy. Menzel concludes that the Cambodian Constitution also intends a general respect for customary international law because of its openness toward international law in general, see Menzel (2014), p. 77.
- 18.
UN Doc. CERD/C/292/Add.2, 9.
- 19.
Theng (2016), p. 257.
- 20.
National report submitted in accordance with para 5 of the annex to Human Rights Council Resolution 16/21 Cambodia, UN Doc. A/HRC/WG.6/18/KMH/1 (27 Jan–7 Feb 2014), para 37.
- 21.
Theng (2016), p. 257.
- 22.
See National report submitted in accordance with para 5 of the Annex to Human Rights Council resolution 16/21 Cambodia, UN Doc. A/HRC/WG.6/18/KMH/1 (27 Jan–7 Feb 2014), paras 37 and 38.
- 23.
See Principle 6 of the Internal Regulations of the National Assembly of Cambodia, available at http://www.skpcambodia.com/Laws%20&%20Regulations%20of%20the%20Kingdom%20of%20Cambodia/Legislative%20Power/NA%20Internal%20Regulation_Eng.pdf and Art 6 of the Internal Regulations of the Senate of the Kingdom of Cambodia, available at http://policy.mofcom.gov.cn/english/flaw!fetch.action?id=1930a482-de49-4d02-b37f-a94150aec692. Both accessed 10 Nov 2017.
- 24.
The National Assembly Human Rights Committee received 1158 complaints from citizens between 2006 and 2010, see Cambodian Center for Human Rights (2012) CCHR Institutions Series: National Human Rights Bodies in Cambodia, 1.
- 25.
Cambodian Center for Human Rights (2012) CCHR Institutions Series: National Human Rights Bodies in Cambodia, 2.
- 26.
Cambodia has been reviewed twice under the Universal Periodic Review procedure, see UN Human Rights Council, Report of the Working Group on Cambodia, UN Doc. A/HRC/26/16 (27 Mar 2014), available at http://www.ohchr.org/EN/HRBodies/UPR/Pages/KHSession18.aspx. Accessed 10 Nov 2017.
- 27.
US Department of State – Bureau of Democracy, Human Rights and Labor (2014), p. 18.
- 28.
Hauerstein (2016), p. 230.
- 29.
US Department of State – Bureau of Democracy, Human Rights and Labor (2014), p. 7.
- 30.
Art 128 (3) states that the judiciary shall consider all cases, including administrative cases.
- 31.
Hauerstein (2016), p. 233.
- 32.
Hauerstein (2016), p. 240.
- 33.
Ibid.
- 34.
Karnavas (2014), p. 54.
- 35.
Report of the Special Rapporteur on the situation of human rights in Cambodia, General Assembly 15th Session, U.N. Doc. A/HRC/15/46, at 41. Areas of major concern in criminal proceedings include limited legal argument in the courtroom; the absence of any analysis of law or publication of reasoned decisions; corruption and political interference within the judiciary; excessive reliance on confessions extracted in police custody, often under duress; lengthy detention without charge; and a lack of trust by the public that the courts will deliver impartial justice.
- 36.
Coughland et al. (2012), p. 19.
- 37.
Criminal Case No. 206 of the Prosecution Department of the Kratie Court (18 May 2012); later transferred to Criminal Case No 2207 of the Prosecution Department of the Phnom Penh Municipal Court (16 July 2012).
- 38.
US Department of State – Bureau of Democracy, Human Rights and Labor (2014), p. 11.
- 39.
- 40.
The constitution includes, for example, the right to an impartial judge (Art 128); aspects of integrity (Art 129); equality before the law (Art 31); procedural rights in criminal cases (Art 38), and procedural rights in administrative cases (Art 39).
- 41.
In Mar 2013, the Court of Appeals reduced the sentence from 20 years in prison to 5 years, with the remainder of the sentence suspended and the defendant subsequently released from prison.
- 42.
The treaty version posted by Hong Sok Hour includes the word “dissolve“ as part of an agreement between the two countries over their shared border, rather than “redefine,” as the original treaty says. The inaccurate wording, which was likely the result of a first translation from Khmer to English and subsequently, a second translation from English back to Khmer by somebody who apparently had not seen the original Khmer version, prompted Prime Minister Hun Sen to accuse Senator Hong Sok Hour of treason and to order his arrest; see Sovuthy (2016).
- 43.
Cheng (2016).
- 44.
The limited scope of jurisdiction of the Tribunal had already been at the center of the negotiations between the Cambodian government and the United Nations in the years leading up to the establishment of the Tribunal. The eventual outcome of these negotiations is an unorthodox set of hybrid chambers sui generis within the existing Cambodian court system—as is signified by the name “Extraordinary Chambers in the Courts of Cambodia.”
- 45.
It is still unclear whether and how the Tribunal will proceed after the completion of the second phase of Case 02/002. Additional cases are under investigation. However, a major issue is that the Cambodian government is reluctant to support the work of the Tribunal for much longer.
- 46.
See Crowther (2013).
- 47.
In 2011, a considerable number of international staff members in the Office of the Co-Investigating Judges walked out to protest the failure of the co-investigating judges (one Cambodian and the other international) to investigate the crimes that form the basis of Case 003. The international co-investigating judge ultimately bowed to pressure and stepped down. However, his successor—while having a different approach—did also not hold this position for long and also stepped down. An order delivered prior to his departure invited the co-prosecutors to file a supplementary submission in the Case 003 investigation. This action was considered highly controversial because the international co-investigating judge recommended that four high-ranking officials in the sitting Cambodian government be interviewed concerning allegations of Khmer Rouge war crimes; for a summary of these events see Coughland et al. (2012), pp. 31–32.
- 48.
Extraordinary Chambers in the Courts of Cambodia, Second Decision on Nuon Chea’s and Ieng Sary’s Appeal Against OCIJ order on Request to Summon Witnesses, Opinion of Judges Downing and Marchi-Uhel (9 Sept 2010, Doc. 002/19-09-2007-EEEC-OPIJ (PTC 50), para 6.
- 49.
Extraordinary Chambers in the Courts of Cambodia, Considerations of the Pre-Trial Chamber Regarding the Disagreement Between the Co-Prosecutors Pursuant to Internal Rule 71 (18 Aug 2009, Doc. 001/18-11-2008-ECCC/PTC).
- 50.
Extraordinary Chambers in the Courts of Cambodia, Prosecution’s Response to Ieng Sary’s Submission on Jurisdiction (16 May 2008, Doc. 002/19-09-2007-ECCC/OCIJ), para 30, citing IACtHR, Velasquez Rodriguez Case, judgment of 29 July 1988, Series C No 4, para 174; and IACtHR, Godinez Cruz Case, judgment of 20 Jan 1989, Series C No 5, para 184.
- 51.
Extraordinary Chambers in the Courts of Cambodia, Prosecution’s Response to Ieng Sary’s Submission on Jurisdiction (16 May 2008, Doc. 002/19-09-2007-ECCC/OCIJ), at para 31: citing HRCtee General Comment No 20 (44), para 15.
- 52.
Extraordinary Chambers in the Courts of Cambodia, Prosecution’s Response to Ieng Sary’s Submission on Jurisdiction (16 May 2008, Doc. 002/19-09-2007-ECCC/OCIJ), para 31: citing United Nations Committee Against Torture, Decisions relative to Communications 1/1988, 2/1988 and 3/1988 of 23 Nov 1989, para 7.2.
- 53.
Extraordinary Chambers in the Courts of Cambodia, Case 002/01 Judgment (7 Aug 2014, Doc. 002/19-09-2007-ECCC/TC), para 64, citing ECtHR, Öcalan v Turkey, App No 46221/99, judgment of 12 May 2005.
- 54.
ECtHR, Öcalan v Turkey, App No 46221/99, judgment of 12 May 2005, para 146.
- 55.
For example when discussing “other inhumane acts” as a crime against humanity, the ECCC Co-investigating Judge refers to ICTY Trial Chamber, Prosecutor v Blagojević & Jokić, Case No IT-02-60-T, judgement of 17 Jan 2005, para 624; and ICTY Appeals Chamber, Prosecutor v. Stakić, Case No IT-97-24-A, judgement of 22 Mar 2006, para 315.
- 56.
For example, para 35 reads: “For the purposes of assessing the reasonable duration of criminal proceedings, I consider persuasive the jurisprudence of the European Court of Human Rights that…”; see Extraordinary Chambers in the Courts of Cambodia, Consolidated Decision on the Requests for Investigative Action Concerning the Crime of Forced Pregnancy and Forced Impregnation (13 June 2016, Doc. 004/07-09-2009-ECCC-OCIJ). ECtHR cases referred to in this context: Deweer v Belgium, App No 6903/75, judgment of 27 Feb 1980; Neumeister v Austria, App No 1926/63, judgment of 27 June 1968; McFarlane v Ireland, App No 31333/06, judgment of 10 Sept 2010.
- 57.
Extraordinary Chambers in the Courts of Cambodia, Consolidated Decision on the Requests for Investigative Action Concerning the Crime of Forced Pregnancy and Forced Impregnation (13 June 2016, Doc. 004/07-09-2009-ECCC-OCIJ), para 70.
- 58.
Hauerstein (2016), p. 243.
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Heilmann, D. (2019). Cambodia. In: Kadelbach, S., Rensmann, T., Rieter, E. (eds) Judging International Human Rights. Springer, Cham. https://doi.org/10.1007/978-3-319-94848-5_16
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