Australian MPs have been taking evidence on human rights abuses in authoritarian states in a move that could lead to sanctions against Cambodia’s leaders.
The MPs are examining Australia’s sanction regime with particular emphasis on human rights abusers, money laundering and corruption.
In the process, Cambodia’s human rights record has become a focal point, something for which the Cambodian diaspora have been waiting for 27 years.
The parliamentary Joint Standing Committee on Defence, Foreign Affairs and Trade is looking at what is known as Magnitsky-style legislation.
This is named after Sergei Magnitsky, a tax lawyer allegedly beaten to death in a Russian prison after blowing the whistle on massive fraud.
The US passed a law bearing his name applying sanctions to individuals accused of involvement in his murder.
An effective Australian sanction law would have a significant impact on countries such as Cambodia.
But this requires the federal parliament drafting the proposed legislation taking into account authoritarian regimes, particularly Cambodia, referred to in the recent publication of ‘Authoritarian International Law’ by Tom Ginsburg.
Submissions by Cambodian diaspora
A submission by the Buddhist Monks Human Rights Council persuaded the committee to incorporate an opinion written by Australia’s former foreign minister, Gareth Evans, titled “Cambodia’s Coronavirus Excuse for Human Rights Abuse.”
Evans’ opinion shows his ongoing support of Cambodia’s democracy since the signing and implementation of the 1991 Paris Peace Accords. He continues to play a role in the proposed law to sanction human rights abusers.
The Accords established Cambodia’s sovereignty, which came into effect after the UN-sponsored elections in 1992-93.
In its submission, the Buddhist Monks’ Council urged “adoption of the proposed legislation to sanction human rights violators from repressive countries, including Cambodia and Vietnam.”
Appearance before the committee
Among other leading activists, Amal Clooney appeared before the committee by teleconference.
In March, Victorian State MP Meng Heang Tak and I were among other prominent Cambodians were invited to appear before the committee. I gave the evidence on behalf of the Kampuchea Krom Cultural Centre of NSW, representing indigenous Cambodians from Vietnam and Cambodia.
The issues raised involved Prime Minister Hun Sen’s forced dissolution of the opposition party, corruption and money laundering that were contrary to the Paris Peace Accords.
These Accords not only established Cambodia’s sovereignty but guaranteed Cambodians their human rights.
Implementing Australia’s Magnitsky law ?
Are Hun Sen and his lawmakers likely to be on the sanction list? The short answer is – highly unlikely.
A serious concern of the Cambodian diaspora is that Australia’s Magnitsky-style legislation would not work effectively against Cambodia’s sophisticated and corrupt regime.
A high threshold and burden of proof for a person to be listed on the sanction registry means that in non-transparent Cambodia, abusers have all the necessary state resources to circumvent Australia’s proposed law.
Further, history shows that Australia and the international community have allowed Hun Sen’s regime to get away with gross human rights abuses for more than 30 years.
Besides words, Australia has not taken steps or action against those perpetrators.
For example, the non-adoption of a Senate motion passed in June 2018. This recalled that in March that year Australia and 44 other countries delivered a joint statement, citing “an electoral process from which the main democratic opposition party has been arbitrarily excluded cannot be considered genuine or legitimate.”
In passing the motion, the Greens leader, Senator Richard Di Natale said: “The Australian government should be calling this election what it is, a sham. We should declare now that it’s not a free, fair or credible result and that it won’t be recognized.
Senator Di Natale concluded: “I do hope that this is a sign that there will be a stronger stance towards this appalling anti-democratic regime.”
Even if Australia were to adopt the Magnitsky law, it will be a struggle to identify Cambodia’s culprits.
Where to begin?
Unless there is a separate chapter dealing with Cambodia that would lower the threshold of “abuses” – the law is unlikely to capture offenders like Hun Sen, his tycoons, ministers and judges.
The extensive network of violators shielded behind the intricate webs of non-transparency created by the regime, using state apparatus and resources to lead and commit the abuses, means it will be almost impossible to identify Cambodia’s offenders.
Cambodia’s transparency index in 2019 was generously reported in the bottom of 162 out of 180 countries. Australia’s proposed law, if implemented, will be unlikely to be effective against Cambodia’s masterminds – from its law-makers to the ministers, judiciary and the low-level officers.
Even if Cambodia’s abusers are unmasked, the stakes are too high for Australia to call out perpetrators. If there is a consolation for victims, the inquiry by the Australian parliamentary committee is widely seen as in the “right direction.”
Clooney called for sanctions against human rights offenders regimes, including those that imprison, murder or intimidate journalists.
In Cambodia, when it comes to expressing the view and report of facts, their fate depends on Hun Sen’s fingers and words.
As Human Rights Watch recently reported: Even in Hun Sen’s Cambodia, arresting a journalist for quoting the prime minister marks a new low for press freedom.
Australia’s Magnitsky legislation will need to strike the right balance such that its law is effective against those in charge of Cambodia’s government pillars.
At what point does Australia’s proposed Magnitsky law deem human rights violations? Is “gross or serious” enough for Cambodia’s abusers to satisfy the threshold?
Hun Sen? The judiciary? The Ministers and lawmakers? The officers who carry out the orders? The tycoons who benefit from the crimes? The members who use funds to recruit members in Australia?
These are questions that if Australia were to adopt a Magnitsky-syle law, a special provision for Cambodia should be considered incorporating into the legislation.
Australian law not effective for Cambodia
Australia’s Modern Slavery Act, passed in 2018, provides an insight as to the effectiveness of Australia’s proposed Magnitsky law against Cambodia’s human rights violators.
This law was enacted to stamp out slavery and abuse of human rights. It requires a company with consolidated revenue of $100 million or more to report its chain of supply.
Being a country of non-transparency, it is impossible to see Cambodia’s companies accountable under this law.
Agriculture products from Cambodia are being sold in eastern and southern states of Australia – in areas with a large concentration of Cambodian diaspora.
Hun Sen’s business empire is well documented.
With no transparency, there is a legitimate claim that rice imported into Australia is farmed from illegally acquired land by tycoons serving Hun Sen’s network.
For now Cambodia’s plight is on the agenda before Australia’s Parliament. This is a milestone achievement.
But if the Magnitsky law thresholds are like those in the Modern Slavery Act many of Cambodia’s abusers are likely to be unaffected.
It is a timely opportunity for Australia’s parliament to consider a style of legislation where other jurisdictions such as the US and Canada failed.
That is, a declaration that it is illegal for members of the authoritarian network to abuse Australia’s democratic values by recruiting members to join a regime that is condemned by Australian lawmakers.
Further to meet community’s expectations, Australia’s Magnitsky law is recommended to designate a chapter on Cambodia, noting Australia’s contribution in the 1991 Paris Peace Accords as an international legacy in the establishment of Cambodia’s sovereignty.
Sawathey Ek OAM is a principal of E K Lawyers (Sydney). He fled Cambodia in 1979 and arrived in Sydney as a refugee in 1983.