Week 552 – 2008-03-23: Law Enforcement – or Force Instead of the Law

The Mirror, Vol. 12, No. 552

On Tuesday last week, we had mirrored an article where the Prime Minister expressed his concerns that some persons were allegedly intimidated, and he said “We have to protect all people regardless which party they belong to.” And he added: “If an official or a member of the Cambodian People’s Party threatens other people who do not belong to their party, it would be a serious mistake. I hope that such cases will not happen. This is really a mistake.” These are statements that violence is not acceptable in the political field.

On Thursday, we reported about the meeting of the 7th session of the UN Human Rights Council, where the Special Representative of the UN Secretary-General for Human Rights in Cambodia, Mr. Yash Ghai, presented his report. His report included a reference to the Code of Civil Procedure (CCP) and the Penal Procedure Code (PPC) which came into force in Cambodia in the meantime, and the Civil Code and the Penal Code are expected to come into force in 2008. “These codes will lead to improvements in the legal process,” he said. He also voice concerns about some changes which he considered to be problematic: “Previously, a confession could not be a basis for conviction unless corroborated by other evidence. This safeguard is removed, giving confessions the same weight as other evidence (art. 321), although the Penal Procedural Code reiterates the prohibition on the use of coerced confessions. There is a heavy reliance on confessions, many obtained through coercion or torture. The new rule could undermine the prohibition of evidence obtained by forced confessions by the Constitution and the Convention against Torture.” Mr. Yash Ghai was not only speaking about his own impressions, but he reported with reference to the 34 pages detailed report by LICADHO: Human Rights in Cambodia – the Charade of Justice. – The Internet references which we provided on Thursday – including the video presentations in Khmer and in English translation by the head of the Cambodian government’s human rights committee, Mr. Om Yentieng, as well as the concluding discussion, where Mr. Yash Ghai expressed his appreciation, encouragement, and thanks about his meeting with Mr. Om Yentieng on the same day, show that these encounters went much more positively than some voices in Cambodia wanted to see. There is agreement that not force, but the law has to be applied.

Last Friday, we carried another article relate to the field of the rule of law. The US ambassador criticized that over 25% of accused persons are intimidated and tortured in order to get confessions form them – even forced confessions. His statement was made with reference to the detailed, 45 pages 2007 report of the “Court Watch Project” of the Center for Social Development, describing in detail the legal situation in Cambodia, and confronting it with their own investigations, how the law is not followed in many cases. But the application of violence in order to achieve confession from suspects is not acceptable.

This agreement, that the rule of law does not allow to violate basic human rights, is however, not generally shared.

When the US ambassador denounced the use of intimidation and torture to secure confessions, he was using arguments which have a long and firm basis in the history and public debate of the United States of America. But some of these fundamental traditions have become the subject of sharp controversies in the USA during the last couple of year, months, and even weeks and days. And some of these discussions have also been carried on with reference to inhuman practices during the Khmer Rouge regime in Cambodia. Some events in US supervised prisons in Iraq, on the US controlled enclave of Guantanamo on the island of Cuba, and in other places have shown that the confrontation with terrorism has led to actions which are controversial – and therefore they led to public debate.

Even a group of 30 retired admirals and generals wrote in December 2007 a public letter, saying:

“We believe it is vital to the safety of our men and women in uniform that the United States not sanction the use of interrogation methods it would find unacceptable if inflicted by the enemy against captured Americans… In order to ensure adherence across the government to the requirements of the Geneva Conventions and to maintain the integrity of the humane treatment standards on which our own troops rely, we believe that all US personnel – military and civilian – should be held to a single standard of humane treatment reflected in the Army Field Manual…

Employing interrogation methods that violate the Field Manual is not only unnecessary, but poses enormous risks. These methods generate information of dubious value, reliance upon which can lead to disastrous consequences. Moreover, revelation of the use of such techniques does immense damage to the reputation and moral authority of the United States essential to our efforts to combat terrorism.”

One of the US presidential candidates, John McCain, who had spent 5½ years as a prisoner of war in Vietnam, was quoted in October 2007, referring to his own past life experience:

“Anyone who knows what waterboarding is – simulated drowning – could not be unsure. It is a horrible torture technique used by Pol Pot…

People who have worn the uniform and had the experience know that this is a terrible and odious practice and should never be condoned in the US. We are a better nation than that.

When I was imprisoned, I took heart from the fact that I knew my North Vietnamese captors would never be treated like I was treated by them. There are much better and more effective ways to get information. You torture someone long enough, he’ll tell whatever he thinks you want to know.”

Efforts to prohibit the use of such forms of torture like waterboarding, by new, clearer legislation, were overturned by President Bush on 8 March 2008, when he refused to sign such a new US law.

US Senator Edward Kennedy had warned: “Unless Congress overrides the veto, it will go down in history as a flagrant insult to the rule of law, and a serious stain on the good name of America in the eyes of the world.”

To try to overturn a presidential veto, for which a two-thirds-majority is necessary, the House of representatives met on 11 March – and failed with a 225 to 188 vote; 51 more votes would have been necessary.

John McCaine, who had spoken so clearly against the use of torture, had in the meantime changed his position and supported the presidential veto – while another presidential candidate, Barrack Obama, said: “I believe that we must reject torture without equivocation because it does not make us safe, it results in unreliable intelligence, it puts our troops at risk, and it contradicts core American values.”

This is the background from which the US ambassador addressed the problem of torture in Cambodian detention and prisons.

But this not only an American discussion – it relates to the fundamental understanding of human rights. Recently a candidate, who was to join the Constitutional Court of Germany, failed to get the necessary agreement from the members of parliament – he is a university professor, and the president of the German Association of Academic Teachers of Constitutional Law – because he had written that in some situations, it may be permissible to torture a criminal in order to save the life on another victim. The fact that he did not absolutely reject torture disqualified him to be acceptable as a member of the constitutional court.

The fact that the US ambassador criticized the situation in Cambodia, where 25 % of suspects report to have been tortured, poses a tremendous challenge to the Cambodian legal and political public: is just the number of 25 % too high? Or is torture fundamentally wrong, giving the wrong signal to the national and international public, which position a society accords to human dignity and to human rights. As Senator Kennedy had said before: will the law, or the opinion of the top political leader – the president – be the law? The same question is always and everywhere to be faced, difficult as it is.