12 December, 2007

Human Rights Now (HRN)

 

Minister for Foreign Affairs, Masahiko Kohmura

 

Request

 

Human Rights Now, an international human rights NGO, calls on the Japanese government to take the following actions as preconditions for funding to the Extraordinary Chambers in the Courts of Cambodia (ECCC);

(1) to express publicly and repeatedly that the Japanese government certainly cannot accept corruption in the ECCC and to ask the ECCC to take specific measures in order to prevent such corruption.

According to international NGOs and local newspapers, Cambodian staff members working for the ECCC, including judges, reportedly pay a certain amount of their salaries (eg. 25%) to the Cambodian government (so-called "kickbacks") in exchange for their positions in the ECCC. If kickbacks are actually paid, this is a serious problem as it happens in ECCC, which is supposed to advocate the rule of law. Furthermore, it is clear that not only a kickback problem, but any corruption cannot be accepted.

The ECCC should take specific measures such as expressing the statement by judicial officers or responsible officials that corrupt acts like kickbacks are against the law and unacceptable. Alternatively there should be an anonymous internal report system like an ombudsman.

 

(2) together with other donor states or even the Japanese government alone, it is necessary to set the standards to check the effectiveness of measures to tackle problems occurring within internal management such as the improvement/enhancement of personnel affairs, transparency or leadership as well as prevention of corruption in the ECCC and to constantly evaluate them in accordance with those standards, linking evaluations with the funding of the ECCC.

Establishing a Committee which is in charge of the evaluation work can be an effective measure.

 

(3) to call on the Secretary-General to appoint a special advisor at high-level (SRSG or USG level) for the ECCC

 

The background and reasons for the request

　

Within the ECCC, which was established to try serious crimes committed during the Khmer Rouge regime, internal rules and regulations were adopted and victims' participation was explicitly stipulated. Moreover, the trials of five of the accused who have been detained(Kaing Guek Eav, Nuon Chea, Ieng Sary, Ieng Thirith, Khieu Samphan) will commence by this November.  　

Human Rights Now released the statement "Justice for Victims - Fundamental Issues for the Extraordinary Chambers in the Courts of Cambodia" in September 2006 and since then has monitored the ECCC with its focus on victims' participation. Human Rights Now has also exchanged opinions with those concerned many times including on the fact-finding visit in October 2006 and conducted its second visit to Cambodia in November 2007.　

Cambodia, with civil war until the 1990s and serious damage done during the Khmer Rouge regime, has been on the road to overcome its tragic past. The process of the ECCC in this situation can be an extremely meaningful and practical step in reconciliation of the society after conflicts with regard to the realization of justice and overcoming impunity. The ongoing process has gradually reminded not only those working for the ECCC but Cambodian victims of that possibility. The possibility has been complemented by various activities of a society surrounding the ECCC in addition to the process of the ECCC itself and furthermore it has promoted those activities. A victims' participation system, particularly a civil action before a criminal court, for which Human Rights Now has been calling, has been at the stage of filing civil actions, but it's been recognized that it plays a significant role in the ECCC in various aspects.

　　

Moreover, the ECCC has great potential to improve and develop the Cambodian judicial system in general.

However, this possibility of the ECCC at the same time indicates the degree of negative influence in the case that the ECCC does not successfully operate. In this regard, a variety of issues which are referred to as things to be resolved by the Report of the UNDP and Expert Report of the UNAKRT cannot be ignored and corruption such as kickback problems which are pointed out by NGOs is never accepted.

On the other hand, the ECCC will reportedly run out of funds next year due to the delayed adoption of internal rules and regulations and what was not budgeted totally or sufficiently. It is true that the entire the ECCC proceedings are expected to be completed in 2009 or later. In addition, it is certainly critical to ensure experts in the victims unit and witnesses unit, to train international legal staffs familiar with Cambodian law, to educate Cambodian legal staffs familiar with international law, to literally record the court proceedings, to improve equipment in the court and to conduct outreach efforts all over Cambodia in order to ensure the success of the ECCC.

The ECCC is entering extremely crucial stages and Cambodia and the international community pay attention to the position and actions of the Japanese government.

It goes without saying that Japan is  the biggest donor to the ECCC. More specifically, Japan contributed almost half of the UN finances in the ECCC budget and was one of the donors for the UN trust-fund which is used for Cambodian finances. At the same time Japan is supposed to receive additional requests for funds from the UN or the Cambodian government. What the Japanese government does and says has a significant influence.

It is hard to avoid thinking that when the Japanese government turns a blind eye, it leads to future problems in the ECCC and Cambodia. This is particularly true if Japan does not express its position on the abovementioned various problems and take specific measures based on its stated position.

 

Considering the above reasons, Human Rights Now strongly calls on the Japanese government to take actions which are mentioned in the "request" in order to realize the potential of the ECCC and to achieve its desired objectives at this crucial moment when the budget and finance of the ECCC are focused on.

Among the above, with regard to personnel affairs, transparency or leadership which is mentioned in (2), the Report of the UNDP and the Expert Report of the UNAKRT points out in detail that the recruitment process of ECCC staff members is defective: those who do not meet the recruitment criteria are employed, salaries do not reflect the criteria and competence, the recruitment process is not transparent and in fact the Cambodian side and the UN side function separately.

In order to improve these problems, with regard to personnel affairs, it is necessary to ensure that staffs who meet the recruitment criteria by properly recruiting staffs again, give salaries matching the criteria and competence and make responsible officials both on the international side and the Cambodian side involved in the recruitment process and to record the process. With respect to transparency, immediate release ofsubmitted and published litigation documents, , periodical publicatiosn of budget/disbursements, and regular press conference are needed. Finally, with regard to the establishment of leadership, it is required to improve the system of reporting to senior staff members and to recruit responsible international staff who are competent and familiar with legal procedures.

In addition, when measures mentioned above (including implementation by the ECCC and mandate of Special Advisor) are taken, it is necessary  to pay proper attention to Cambodian staff and to evaluate/treat them fairly as well as to be careful of the capacity reinforcement for legal staff in Cambodia in the light of the fact that Cambodia is a state concerned as well as a partner working cooperatively with the UN in order to realize the desired objectives of the ECCC.

Some cases of corruption pointed out above are not related to funding by the Japanese government in terms of budget allocation.

However, it is unacceptable to overlook the corruption which is at the core of the credibility of the ECCC if the Japanese government contributes a large amount of funding from the Japanese tax payer's money to the ECCC. With pervasive corruption, genuine justice cannot be achieved, and therefore the Japanese government should play a role in ensuring that the ECCC is transparent, with no corruption and in accordance with international standards as a whole.

The ECCC must contribute to the peace-building process for the Cambodian people and to improve the judicial system there. Accordingly, based on this point, the Japanese government should play an active role in overcoming problems such as corruption and transparency.