The Cambodia Daily – Opinion: Violent Threats Could Spur ICC Investigation

On May 29, 2017, The Cambodia Daily published an opinion piece by Michael G. Karnavas.  The piece appears below:

The Cambodia Daily

Opinion: Violent Threats Could Spur ICC Investigation

by Michael G. Karnavas1   Michael G. Karnavas is a criminal defense lawyer. He was the co-lawyer for Ieng Sary at the Extraordinary Chambers in the Courts of Cambodia, and is now Meas Muth’s international co-lawyer in Case 003 at the ECCC.

The Cambodia Daily reported last Friday that Prime Minister Hun Sen gave a speech to 4,000 faithful of Cambodia’s Christian Community on Phnom Penh’s Koh Pich island.

He claimed that only a Cambodian People’s Party (CPP) win in the upcoming elections will ensure peace and development in Cambodia. Mr. Hun Sen then expressed his willingness to “eliminate 100 or 200 people” if the opposition were to take any actions that would lead to the “overthrow” of the CPP.

By all available and transparent accounts, there is no credible evidence suggesting that a bloody “overthrow” is in the works. No evidence of a civil war in the making. No evidence of the political opposition arming itself to the teeth (or at all) to take on the national defense forces, the civil police or other associated armed paramilitary forces—all of which are ready to respond decisively if ordered to action by the ruling party through Mr. Hun Sen.

So, what was Mr. Hun Sen referring to by suggesting that dark forces are afoot, seeking to overthrow the CPP? Why is he invoking the bloody events of 1997, which, depending on how you view the facts that continue to be murky to this day, either the CPP armed forces preemptively attacked the royalist party (Funcinpec) armed forces which were about to stage a coup, or the CPP, based on dubious intelligence and evidence, saw an opportunity to stage a coup and overthrow Funcinpec, the co-ruling party (which, according to the 1993 official election results, received 45.5 percent of the votes in comparison to the CPP’s 38.2 percent.)

The debate continues about the events of 1997, but drawing parallels between those events and the ongoing pre-election events are as contrived as they are bogus—unless the aim, as it appears, is to stoke fear.

By “overthrow” Mr. Hun Sen seems to be referring to attempts by the opposition to use soft power, the tools of peaceful revolutions that have commonly come to be known as color revolutions, to win at the ballot box—or to de-legitimize election results when heavy-handed tactics and ballot box-stuffing occur. Hardly cause for sanctioning the use of military, police, and paramilitary forces to extrajudicially kill (in the context of Mr. Hun Sen’s words, “eliminate” is a euphemism for killing) 100 to 200 non-CPP affiliated Cambodians.

Perhaps these threats of violence were just puffery in the heat of the political moment, albeit of the most reprehensible kind. In this day, in this world, in this Kingdom, such words should send a chill down the spine of every person of conscience.

But whether political gamesmanship, or a sincere expression of intent, those advising Mr. Hun Sen and the CPP leadership who are most likely to be associated with and responsible for the “elimination” of Cambodians, would do well to encourage Mr. Hun Sen to walk back his ill-considered words. He should be counseled to retract his expressed willingness to kill fellow Cambodians. He should also be strongly encouraged to publicly and officially instruct with clarity and conviction that no one, whether belonging to the armed forces, civilian police forces, or other nongovernmental forces such as vigilante groups or lone-wolf operators, should engage in any acts of intimidation, thuggery, assaults, and, especially, killings in response to any peaceful political activity.

Mr. Hun Sen must instruct his proxies, such as Defense Minister Tea Banh—who has openly threatened violence to anyone who dare peacefully protest—to cease and desist, to stand down.

But why should Mr. Hun Sen wish to withdraw his threats to eliminate 100 to 200 people for the sake of ensuring that his party, the CPP, wins the upcoming elections? What has he to worry about? Eliminating 100 to 200 followers of the opposition pales in comparison to the 7,000 to 8,000, and counting, extra-judicial killings credited to Philippine President Rodrigo Duterte. Mr. Duterte openly acknowledges having personally killed drug dealers to show his police officers how extrajudicial killing can, and should be done—with impunity. Nothing is happening to Duterte. So far.

A communication has been lodged against Mr. Duterte with the Prosecutor of the International Criminal Court (ICC). This could lead to a formal investigation, and it is not beyond the realm of possibility that, in the not too distant future, Mr. Duterte may be facing charges of crimes against humanity. Mr. Duterte has threatened to withdraw the Philippines from the ICC, presumably should he be charged. This may seem like a sound strategy, but hardly. Mr. Duterte would become subject to arrest and extradition to the ICC in The Hague by any of the 162 countries that have signed the Rome Statute setting up the ICC—regardless of whether the Philippines withdraws.

Mr. Duterte could end up like the president of Sudan, Omar al-Bashir: an international pariah welcomed in an ever-narrowing circle of countries, sneaking in and out under cover of darkness, sometimes flying out (as he did from South Africa) just a few steps ahead of officers seeking to execute the ICC’s arrest warrant.

Ditto for Mr. Hun Sen if he dares tread this path. Cambodia has signed the Rome Statute. There is no doubt that the ICC Prosecutor would have the right to start a formal investigation for suspected crimes falling within the ICC’s jurisdiction. In this murderous world, eliminating a couple of hundred Cambodians may seem inconsequential when compared to other mass atrocities, but depending on the circumstances that result in such killings (inclusive of which are words associated with or designed to incite killings), the jurisdictional gravity requirement for ICC prosecution could be satisfied.

There is already a communication before the ICC requesting an investigation of alleged human rights violations for illegal imprisonment of Cambodians and land grabbing (illegal forced evictions) during Mr. Hun Sen’s time in power. Mr. Hun Sen, by virtue of his authority and responsibilities, is a presumed target. Thus far, there is nothing to suggest that the ICC Prosecutor, Madame Fatou Bensouda, has decided to act on this communication. However, it is worth noting that last year her office issued a Policy Paper on Case Selection and Prioritisation, indicating that its focus of investigations would include crimes normally not prosecuted at international courts, such as illegal dispossession of land.

Tempting as it may be to believe that the pending communication should not be linked to any election-related killings (such as those suggested by Mr. Hun Sen), it would be ill-advised to do so. In fact, such killings may turn out to be the tripwire that ultimately sways the ICC Prosecutor to take action bearing serious consequences for Mr. Hun Sen and company.

Comforting as it may be for those who are the targets of the ICC communication to delude themselves into thinking that the alleged human rights violations and land grabbing cannot be joined to any election-related killings, they should know that the ICC, in meeting the gravity test, has at least on one occasion (the Mavi Marmara inquiry and the situation in Gaza) considered the events of one situation in the overall context of events of a different yet seemingly linked situation. Here, the alleged crimes detailed in the communication to the ICC can, with relative ease, be linked to or assessed with the suggested election-related killings were they to occur.

Threatening to kill up to 200 Cambodians for whatever the reason, let alone for election-related reasons, is not to be taken lightly. As the head of state, the head of the government, the head of the armed forces, and as the head of the party in power, Mr. Hun Sen is responsible for setting the tone for his subordinates. Ultimately, the responsibility lies with him for the conduct of his subordinates and others who act on his words. Extrajudicial killings resulting from Mr. Hun Sen’s threats, especially in the number he suggests are necessary to ensure his agenda, are unlikely to be countenanced by the ICC.

Impunity has its limits, even in Cambodia.

© 2017, The Cambodia Daily.

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One thought on “The Cambodia Daily – Opinion: Violent Threats Could Spur ICC Investigation”

  1. Thanks for that interesting post Michael ( as usual ) , yet , when one observe his comment , in the broader context , and the whole wording used by him in that speech , then , one may reveal different potential interpretation :

    According to Hun sen , his family it seems , had gotten threats from opposition members , here I quote from ” Reuter news ” :

    “They said they would destroy the Hun family first. If the Hun family is destroyed, Hun Sen’s supporters will not stay still.”

    End of quotation :

    So, they had claimed allegedly , that they shall ” destroy ” the Hun family first , and how ( if ” eliminating ” is relevant ) ?? By peaceful vote one may wonder ??

    And even so , they were using the term ” overthrow ” , hardly can be used for peaceful and fair victory by voting . Finally , he is expressing his wishes , to :

    ” Avoid the country being plunged into civil war ” ( Cambodia daily ) Now , in light of that wording : ” overthrow ” and to ” destroy ” one may suggest , at least , bit different interpretation .

    P.S . : Omar Al Bashir unfortunately got almost the full legitimacy and even legal support or endorsement , in his visit to the AU summit in South Africa . Wasn’t really visiting and leaving under cover of darkness .
    Reuter news :

    http://www.reuters.com/article/us-cambodia-election-idUSKBN18L0ZU

    Thanks

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