Amnesty International USA Report
Rights Razed
Forced evictions in Cambodia
Forced evictions in Cambodia
1. Introduction
Like many thousands of other Cambodians who have been forcibly evicted, Sophal also lost access to natural resources which they relied on to earn a living -- in his case, land used for subsistence rice farming.
The "pro-poor" policies of the Cambodian government, supported by its international donors, stand in sharp contrast to the realities experienced by Vireak, his children and others who have lost homes, belongings and means of earning a living in unlawful forced evictions.
A forced eviction is 'the permanent or temporary removal against the will of individuals, families and/or communities from the homes and/or land which they occupy, without the provision of, and access to, appropriate forms of legal or other protection'.1Forced evictions have been recognized by the UN Commission on Human Rights as a gross violation of human rights,2 and are also -- as in the cases presented here -- associated with other human rights violations.
As a party to the International Covenant on Economic, Social and Cultural Rights (ICESCR), and other international human rights treaties which prohibit forced eviction and related human rights violations, Cambodia has an obligation to stop forced evictions and to protect the population from forced evictions.
This report shows how, contrary to Cambodia's obligations under international human rights law, those affected by evictions have had no opportunity for genuine participation and consultation beforehand. Information on planned evictions and on resettlement packages has been incomplete and inaccurate, undermining the rights of those affected to information, and to participate in decisions which affect the exercise of their human rights, in particular the right to adequate housing. The lack of legal protection from forced eviction, and lack of regulation of existing standards has left an accountability gap which increases the vulnerability of marginalized people, particularly those living in poverty, to human rights abuses including forced evictions.
In instances where there has been some level of consultation with affected communities, decisions on relocation appear in reality to have been taken by the authorities beforehand, frustrating the right of affected people to propose alternatives and for those to be duly considered by the authorities. The cases presented in this report show how, again contrary to international human rights law, the authorities have opted for eviction long before all other alternatives have been explored.
Endemic problems in Cambodia, including a lack of transparency and outright secrecy also contribute to delays in communicating eviction orders to affected communities. Lack of proper notice and consultation further deprives the affected of their opportunities to seek legal redress and to realize their own human rights, including the right to an adequate standard of living.
Although there have been some positive recent signs, including repeated calls by Prime Minister Hun Sen for an end to land-grabbing and sporadic action against people involved in land theft, the Cambodian government has not demonstrated political will to ensure an end to forced evictions or the factors leading to them. Instead government representatives are seen to be involved in or standing by as the law is applied arbitrarily or by-passed altogether, in ways that grant impunity to those in political or economic power for arbitrarily expropriating land from marginalized people living in poverty.
As long as this pattern is allowed to go on, hundreds of thousands of Cambodians live under threat of being forcibly evicted -- in Phnom Penh, Sihanoukville and urban centres, but increasingly also in rural areas.
Amnesty International urges the Cambodian government to end all forced evictions and to introduce a moratorium for all mass evictions until legislative and policy measures are in place to ensure that any evictions as are necessary are conducted only in full compliance with international human rights laws and standards. The organisationbelieves that such steps would send an unambiguous signal that the Cambodian government is intent on tackling land-grabbing, the spread of landlessness and increase in land disputes, while upholding its obligation to protect the right to adequate housing as a foundation for the achievement of its pro-poor agenda as spelt out in the Rectangular Strategy and the National Poverty Reduction Strategy.
This report is based on field visits in March 2006 and June 2007, as well as additional background research of media articles, reports and communications on issues relating to land, housing, natural resources, law and legislation. The March 2006 field visits covered four areas where disputes over land and/or natural resources were ongoing. In 2007 Amnesty International also conducted interviews with evictees in Phnom Penh and Sihanoukville. Names of individual victims of human rights violations have been changed for their protection.
2. Historical background
Mass forced eviction and forced displacement is not a new phenomenon in Cambodia, and the context in which mass relocation historically has taken place provides partial explanation as to why forced evictions are fast becoming one of the most widespread and systematic human rights violations affecting Cambodians.
During the protracted civil war both urban and rural populations were uprooted against their will: between 1970 and 1975, Phnom Penh's population swelled as rural dwellers took refuge in the city when their homelands turned into frontlines or came under US bombardment as the Viet Nam war spilled over the border into Cambodia.
Under Khmer Rouge rule (April 1975 - January 1979) urban populations were forced out to the countryside as cities were emptied and abandoned, giving way to radical and brutal collectivization. Up to two million Cambodians died or were killed, among them most of the skilled workforce; infrastructure and administration were destroyed, including records of land registration and maps.
Towards the end of this period and during the first years of war that ensued between the ousted Khmer Rouge and the new Viet Nam installed government under the People's Republic of Kampuchea (PRK), hundreds of thousands of Cambodians fled to Thailand. Others sought protection inside the country away from fighting, famine and the humanitarian crisis that the Khmer Rouge left behind.3
Throughout the 1980's, Phnom Penh was slowly rehabilitated and re-populated, mostly by rural Cambodians; many of the original city dwellers had not survived the Khmer Rouge years.4 Pressures on land and housing were limited, and people took over houses and land on an ad hoc and unregulated basis, though better, less dilapidated houses tended to be granted by the authorities to soldiers and public officials.5Although private ownership rights were not recognized, informal occupation rights gained increasing foothold and became de facto transferable, if not legally so.
In 1989 the government reinstated private property rights by decree,6granting farmers possession rights to plots of up to five hectares after five years of continuous cultivation, and households the right to obtain ownership titles to residential plots up to 2,000 square meters.7 Private property rights were subsequently given constitutional protection in the April 1989 Constitution of the State of Cambodia,8Article 15 of which set out that citizens had "full right to own and use land and have the right to inherit land granted by the state for the purpose of living on it and exploiting it."
This marked an ideological shift, which initiated economic and political reform, involved the withdrawal of Vietnamese troops -- and paved the way for the emergence in the 1990's of competition over land and natural resources. Cambodia was edging towards peace amidst the 1991 Paris Peace Agreements, as well as towards market economy; the UN was setting up a massive operation, with over 20,000 troops and officials entering the country. Local populations remained unsettled, including returning refugees from the border camps, while population growth sped up, all of which brought change to the housing market. Land, particularly in Phnom Penh, became increasingly valuable and an object of speculation;9as the cost of land in the city became prohibitive, particularly for the accelerating influx of rural migrants, informal settlements mushroomed across Phnom Penh. Over a dozen forced evictions in Phnom Penh, particularly from slum areas, are reported to have taken place at this time, but comprehensive details about them are not available.
Between 1993 and 1999, the government granted concessions for around one third of the country's most productive lands for commercial development by private companies.10 These companies were involved in logging, agriculture, mining, tourism and fisheries, activities which affected the populations who resided on or earned their livelihoods from the concerned areas or resources. However, data on forced evictions resulting from these concessions is limited.
3. The current context
There is growing information about both urban and rural forced evictions of more recent date. Human rights groups, donors and UN agencies have increasingly raised alarm about various factors that lead to forced evictions and displacement, including economic land concessions, land grabbing, land disputes and a lack of rule of law.
The UN Special Representative of the Secretary General for Human Rights in Cambodia has issued two reports about economic land concessions, showing the serious consequences for the local populations of activities of concessionaires, including dispossession and impoverishment.11According to the most recent report, from June 2007, "[e]ncroachment on agricultural and grazing land, and resulting loss of livelihoods, continues to be the most commonly-voiced issue of concern for communities, and arises in relation to almost all active concessions."12
Development and so-called "beautification" projects, including slum clearance and construction of roads and other infrastructure, have also resulted in displacement, particularly in urban and peri-urban areas. According to the World Bank, between 1998 and 2003 the Phnom Penh municipality forcibly evicted 11,000 families, mostly urban poor living in informal settlements in or near the city centre.13 Since then forced evictions have reportedly displaced well over 30,000 people in Phnom Penh alone.14 Some 150,000 Cambodians across the country are known to live at risk of being forcibly evicted.15
Urban forced evictions are at times widely reported in the media and monitored by human rights groups, including networks of non-governmental organisations (NGOs) such as the Housing Rights Task Force and the Resettlement Action Network.
Although forced evictions in Cambodia are often depicted as an urban phenomenon, a growing share of cases take place in rural areas as competition over land, aquatic and forest products and other commonly held resources is on the increase.16 In rural areas, however, the scope of forced evictions and the number of persons affected are unclear: limited infrastructure makes it hard for isolated communities to voice their grievances beyond their locality. They often have more limited knowledge of their legal rights, including knowledge of the right to participation in decisions that affect their lives, and their localities are less accessible to NGOs that may be able to investigate incidents or raise awareness. Indigenous Peoples, who mainly live on traditional land in the north-eastern provinces of Mondulkiri and Ratanakiri, are particularly marginalized and often unable to assert their rights in this regard.
Landlessness, an unaddressed cause of which is forced evictions, is increasingly widespread among rural Cambodians. The number of landless rural households grew from 12.6 percent in 1997 to nearly one in five in 2004.17
Linked to the problem of landlessness is the lack of security of tenure, particularly among people living in poverty. The likelihood of obtaining a secure land title increases with income: in 2004, among the poorest fifth of the population,18 only 40 percent had documentation to prove ownership, whereas around 60 percent of the richest fifth held such documentation.19 Although the perception of traditional possession rights remains strong and may provide a degree of tenure security despite the lack of documentation, it is specifically among the vulnerable, poorer households living on land contested by the state, that lack of legal title leads to insecure tenure.20
Oxfam Great Britain has collated nationwide data of over 1,800 large-scale land disputes in which ordinary Cambodians have turned to some dispute resolution mechanism for assistance after having lost land.21In terms of documentation to prove ownership of disputed land, the majority of complainants, two thirds of whom were farmers, had no documents or ownership titles "because they thought that the land they occupied belonged to them."22 Only four percent had applied for formal title registration and around one in five had a receipt of purchase to support ownership claim.23At the same time, 56 percent had occupied the land for five years or more at the time of the survey (2004), which would give them strong claims to ownership of the land under the 2001 Land Law (Article 31). The Oxfam study also reported that the largest groups of defendants, i.e. those accused by claimants of having grabbed land, were civil government authorities (41 percent); the military (23 percent), and business (11 percent).24
3.1 Institutions and structures
The Ministry of Land Management, Urban Development and Construction (hereinafter Ministry of Land) has primary responsibility for land management and administration; it develops land policy together with the inter-ministerial Council for Land Policy and has co-drafted a housing policy, yet to be adopted. The ministry is also in charge of registration, distribution and titling of land and for management of state-owned land.25
Several other government entities have roles related to various aspects of land and housing policy. The Ministry of Agriculture, Forestry and Fisheries is responsible for agriculture and economic land concessions, although monitoring economic land concessions also falls within the remit of the Ministry of the Interior. Other entities involved include the Ministry of Defence, which is responsible for Military development zones, the creation of which has been associated with forced evictions; the Ministry of Rural Development, as well as sectoral Technical Working Groups, which include representatives of donors and from the government. Courts, the Cadastral Commission and the National Authority for the Resolution of Land Disputes are all involved in resolution of land disputes. Most entities also have a multi-tier administration: at the national, provincial, district and commune levels, mandated to implement certain parts of plans and policies, at times overlapping, often lacking clarity.
Land dispute resolution
The Cadastral Commission, under the Ministry of Land, was established in 2002 under the Land Law. One of its central duties is to investigate and resolve land disputes over unregistered land.26 Resolution of disputes over registered land is the domain of courts.
However, in view of the massive increase in land disputes in the past five years and apparent inability of the Cadastral Commission and courts to solve them, the government launched by royal decree the National Authority for the Resolution of Land Disputes (NARLD) in February 2006. It is mandated to take up cases or complaints that are "beyond the jurisdiction of the National Cadastral Commission",27 but given the division of jurisdiction between the Cadastral Commission and court, NARLD's mandate appears to overlap with existing structures. The process of establishment and its membership also represents a further concentration of executive authority in Cambodia.
3.2 Government policy -- key documents
Launched by Hun Sen in July 2004, the "Rectangular Strategy for growth, employment, equity and efficiency in Cambodia" (2004-2008) is the government's central economic policy document, and it is described as a tool to implement its policy agenda, including the more elaborate National Poverty Reduction Strategy (NPRS). The NPRS (2006-2010), in turn, is Cambodia's poverty-reduction strategy which is a requirement of the International Monetary Fund and the World Bank, in order to qualify for debt relief.28
At the heart of the Rectangular Strategy is "good governance", which according to the document, requires wide participation, enhanced sharing of information, accountability, transparency, equality, inclusiveness and the rule of law. Broadly speaking, the government undertakes to "promote sustainable and equitable development, and strengthen Cambodia's social fabric to ensure that the Cambodian people are well-educated, culturally advanced, engaged in dignified livelihood and living in harmony in family and society."29
The strategy document does not establish roles and responsibilities to eradicate forced evictions, and includes ambiguous and concerning pledges to achieve the "eradication of illegal settlements". It does however identify the urgent need to continue land reform and pledges to tackle "land tenure security and ...land grabbing, and control of land ownership concentration for speculative purposes."30 Amnesty International is concerned that these goals should be pursued only as consistent with international human rights law. In this respect the "eradication of illegal settlements" should be understood as a commitment to take steps, together with those living in informal settlements and with their active participation, to realise their human rights, including their right to adequate housing. It should under no circumstances be understood as a license to undertake forced evictions.
A Land Policy was adopted in 2001 and updated through the Interim Paper on Strategy of Land Policy Framework (2002) by inter-ministerial Council for Land Policy. The policy papers do not expressly commit to eradicating forced eviction, but the Interim Paper appears to set a direction: "The policy consensus which is emerging is that forced evictions should be avoided as much as possible, and that if compulsory relocation is required, then both adequate preparation time, and adequate relocation sites must be provided." It also says that the guidelines in the so-called Habitat Agenda will form "a basis for consolidating policy in this area".31
A report of the Ministry of Land from 2004 took stock of the "involuntary resettlement" policy of Phnom Penh between the late 1990s and 2002, and concluded that "new sites were on the peripheral lands and not adequately equipped with basic infrastructure and services and lacks economic opportunities. The policies further impoverished the poor. Having seen such an impact (...) the Government in turn attempts to include the poor in its land development programs so as to achieve the goals of poverty reduction and equitable economic development and identifying areas for low-income people, while tends to provide them with land tenure to protect them from severe land markets."32
This discussion paper followed the announcement in May 2003 by Hun Sen of an urban housing policy that would entail upgrading annually 100 inner-city poor communities for five years.33 Since then, the Ministry of Land with the assistance of the UN agencies, has prepared a draft housing policy, explicitly described as part of its poverty reduction efforts.34 The draft presented a range of initiatives, including the provision of short-term tenure security in Phnom Penh for all informal settlements. This would also entail determining suitability of upgrading, a process that was estimated to take nine months, during which there would be a moratorium on evictions and relocation.35
Surveys were scheduled to determine which settlements on state land are suitable for medium to long-term tenure security and upgrading. For areas deemed unsuitable for upgrading initiatives, "relocation should be avoided if at all possible." An independent complaints mechanism was proposed for affected communities, and any relocation should be "to a site as close as possible and with reasonable access to livelihood opportunities and services. Adequate compensation and preparation time will also need to be provided" as well as some security of tenure. Amnesty International is concerned that neither the Interim Paper nor the draft housing policy clarify the roles of the affected populations in determining whether or not an informal settlement is suitable for upgrading. The documents also lack assurances of participation of and consultation with affected communities that are slated for resettlement. The housing policy has not been formally adopted.
Finally, the Cambodian government retains a policy of granting companies leases for up to 99 years for commercial developments in exchange for a fee and investments. The 2001 Land Law defines them as "land concessions for economic purposes", including plantations and agro-industry,36 with an aim to increase investment, job opportunities and rural livelihoods and to generate state revenue.37 By the end of 2006, 14.5 percent of Cambodia's arable land was leased out to concessionaires.38
4. International human rights law and standards, domestic legislation
As a State Party to the International Covenant on Economic, Social and Cultural Rights (ICESCR) the Cambodian government is legally obligated to respect, protect and fulfil the right to adequate housing as provided by Article 11(1):
The Universal Declaration on Human Rights as well as international human rights treaties that Cambodia has ratified have been given the force of law within Cambodia through article 31 of the Constitution of the Kingdom of Cambodia:42
4.1 Prohibition on forced eviction
State parties to the ICESCR and several other international treaties have a duty not to subject their population to forced eviction under the right to adequate housing, with very limited exceptions. The Committee on Economic, Social and Cultural Rights (CESCR), the UN body of experts charged with monitoring the implementation of this Covenant, has stated in a General Comment44 that it "considers that instances of forced eviction are prima facie incompatible with the requirements of the Covenant and can only be justified in the most exceptional circumstances, and in accordance with the relevant principles of international law."45 While many duties on states under the ICESCR require progressive fulfilment, the duty to halt forced evictions is immediate, as is the duty to not interfere with individuals who enjoy the right to housing.
The Human Rights Committee46has expressed concern that forced evictions constitute violations of the ICCPR, in particular of Article 17, which provides, among other things, that "[n]o one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence" and that "[e]veryone has the right to the protection of the law against such interference or attacks."47
The prohibition on forced evictions does not apply to evictions carried out in accordance with the law and in conformity with international human rights law. 48
Cambodian law does not specifically prohibit forced evictions, but Article 44 of the Constitution, which protects the right of all Cambodian citizens, individually or collectively, to own land, contains a broad limitation to the effect that"the right to confiscate possessions from any person shall be exercised only in the public interest as provided for under law and shall require fair and just compensation in advance."
4.2 Protection against forced evictions
As a State party to a wide range of human rights conventions Cambodia also has an obligation to refrain from and protect against forced evictions.49 One of the principal aspects of this obligation is the duty not to allow forced evictions. Another is the duty to protect everyone within its jurisdiction from forced evictions carried out by third parties. Central to such protection is the adoption and implementation of legislation which complies with human rights standards to prevent forced eviction.
In its General Comment on forced evictions (General Comment 7), the CESCR has clarified that evictions can only be carried out when certain procedural protections are applied, including:
States parties to the ICESCR must ensure that adequate alternative housing and compensation for all losses is made available to those affected prior to eviction, regardless of whether they rent, own, occupy or lease the land or housing in question. Further, evictions must not "render individuals homeless or vulnerable to the violation of other human rights."52
As a party to the ICESCR Cambodia has an immediate obligation to adopt effective measures aimed at ensuring, at the very least, a degree of security of tenure sufficient to protect the entire population from forced eviction, harassment and other threats. As the CESCR has clarified:
Amnesty International believes that the Basic Principles represent an excellent guide for the development of national eviction guidelines.
Legal protection against forced evictions is generally weak in Cambodian law. The Land Law, drafted with a view to secure implementation of the property rights guaranteed under the Constitution, consists of general principles that require sub-decrees55 and implementing regulations to be effectively applied. Since enactment in 2001 the legal framework has developed incrementally, but remains incomplete.
Article 35 sets out procedures for the eviction of occupants with no or insufficient title. Such evictions can only be made by a court order upon the request of the person who claims the property, and it falls on the courts to verify and validate such claims. The law also provides that although courts cannot refuse to order an eviction in favour of a person who presents a valid and complete cadastral title, that is, legal ownership, a temporary suspension may be requested by the competent authorities if the eviction "is likely to give rise to instability or to have serious social repercussions" (article 36).
In terms of security of tenure, the Land Law transformed earlier possession rights into ownership rights and limited the principle from previous legislation that possession leads to ownership to land occupied prior to 2001. According to article 31 (Chapter 4) of the Land Law, a person who can demonstrate lawful uncontested possession for a period of five years before the law was enacted (2001) can become the owner of the land. Previously, five years of uncontested possession without any cut-off date could lead to legal ownership.
"Social land concessions" is a systematic land distribution mechanism established under the law, whereby state private land56may be distributed for residential or farming purposes to the poor and homeless families.57 Combined, these provisions protect security of tenure and are seen as a replacement of the old principle of ownership through possession.
Security of tenure is also extended to Indigenous Peoples' lands, providing for collective ownership of those communities. These provisions protect Indigenous Peoples against displacement.58
The Sub-Decree on Economic Land Concessions, signed on 27 December 2005, sets out general conditions that must be met for a concession to be granted, which provide communities with protection against eviction. Chapter 2, Article 4 provides that "the Contracting Authority shall ensure that there will not be involuntary resettlement by lawful land holders and that access to private land shall be respected."
4.3 Rights to participation and consultation
The right of everyone to participate in decisions which affect the exercise of their human rights is strongly grounded in international human rights law and standards.
Both the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights guarantee the right to take part in government or in the conduct of public affairs. According to the Human Rights Committee, interpreting Article 25 of the ICCPR, this includes a right to participate in the formulation and implementation of policy from local to the national and international levels.
In the Basic Principles developed by the Special Rapporteur on Adequate Housing, the principles to be applied are further developed, based on existing human rights law and standards. They include:
In the specific context of Economic Land Concessions, the Sub-Decree on Economic Land Concessions sets out requirements for public consultation and participation.
4.4 The right to an effective remedy
States parties to the ICCPR and the ICESCR64 have an obligation to ensure that effective remedy is provided to any person whose rights have been violated. When it is granted, such a remedy must be enforced by a competent authority.65 The Human Rights Committee has stated, in General Comment No. 31, that the ICCPR,
The Basic Principles assert that the right to an effective remedy for forced eviction should include access to justice, compensation, restitution and return, resettlement and rehabilitation. The principles to be applied in each case are developed in some detail (see Attachment 1).
The Special Representative of the Secretary-General has pointed out failings in the system of judicial remedies in Cambodia,
Both the Cambodian Constitution and the Land Law have provisions for fair and just compensation in the context of confiscation or deprivation of ownership.71 Such compensation must be awarded in advance of expropriation. Article 5 of the Land Law provides that "An ownership deprivation shall be carried out in accordance with the forms and procedures provided by law and regulations and only after the payment of just and equitable compensation." The "law and regulations" providing for procedures have yet to be adopted.
4.5 Prohibition of unnecessary and excessive use of force
The provisions for the right to life and to security of person in the ICCPR,72 oblige the Cambodian authorities to use force only when unavoidable and absolutely necessary, and then only minimally and with utmost caution. Under international standards law enforcement officials are required to:
The rights of Indigenous Peoples to lands, territories and resources are recognised and protected in international human rights laws and standards.
The UN Declaration on the Rights of Indigenous Peoples affirms a range of human rights in respect to "the lands, territories and resources which [Indigenous Peoples] have traditionally owned, occupied or otherwise used or acquired." The Declaration states that they shall not be forcibly removed from these lands or territories, 75 nor shall any relocation take place without their free, prior and informed consent. The Declaration also specifies that relocation should only take place after agreement on just and fair compensation and, where possible, with the option of return.76 The Declaration provides that Indigenous Peoples have the right to participate in decision-making in matters which affect their rights, through representatives chosen by them, according to their own procedures, as well as the right to maintain and develop their own decision-making institutions.77 States should consult and cooperate in good faith with Indigenous Peoples through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing measures.78 The Declaration further outlines States duties to recognise and protect Indigenous Peoples' rights to lands, territories and resources, and outlines the rights to effective remedies where these rights are abused.79
Cambodia is also a party to the International Convention on the Elimination of Racial Discrimination (ICERD).80 The Committee on the Elimination of Racial Discrimination (CERD) has clarified that discrimination against Indigenous Peoples falls under the scope of the ICERD, and that all appropriate means must be taken to combat and eliminate such discrimination,81 including protection of the right to free prior informed consent in respect of decisions which affect the exercise of the human rights of Indigenous Peoples. As CERD has stated,
Some of these provisions are not enforceable pending the issuance of a Sub-decree on the registration of Indigenous collective land, which has been under drafting for several years. The process is very slow and there is mounting concern that there will be little Indigenous land left to title by the time the decree has been adopted and the titling process begins.84 Until it is adopted, articles 18 and 23 of the Land Law provide for temporary land tenure security and prevent transfer of Indigenous communities' traditional lands; it is illegal for an individual member of the community to sell Indigenous Peoples' land. Also due is legislation regulating the process through which Indigenous communities may become legal entities, a step that forms part of the collective titling process and which has also become very protracted.
The 2002 Forestry Law and the Sub-decree on Community Forestry Management (2003) provide some security in terms of management and use of forest areas by Indigenous Peoples, which are central to their livelihoods. However, there is a lack of clarity as to the inclusion of forest areas of cultural and religious utility, such as spirit forests and burial forests, in respect to land encompassed by Indigenous communities' collective titles.
4.6 Adapting the Basic Principles and Guidelines on Development-Based Evictions and Displacement to the Cambodian context
Prior to the consideration by the Human Rights Council of the Basic Principles, a network of Cambodian and international non-governmental organizations, the Office of the High Commissioner for Human Rights in Cambodia and the Phnom Penh municipality agreed to the need for a similar document of principles and outlined the "Declaration of principles for best practices in housing and pro-poor development in Cambodia: Promoting a rights-based approach to urban development". The Declaration was launched on World Habitat Day (4 October) in 2004 and submitted for approval to the Ministry of the Interior.85 By signing the declaration, the Municipality of Phnom Penh in effect pledged to use involuntary eviction as a last resort to cease land disputes and to pay fair and just compensation.Amnesty International is not aware that the Ministry of Interior has approved these or that the principles are in any way informing policies and practice within the land and housing sectors of the Municipality of Phnom Penh or at the national level.
At the time of writing this report, a sub-decree on "involuntary resettlement in the context of development projects"86 is being drafted, with the support of the Asian Development Bank (ADB), with protective policies generally reflecting those of the ADB. These would go some way to improving the legal protection against evictions taking place as a consequence of development projects, protection which is now virtually absent. However, there are widespread concerns among Cambodian civil society that the current draft in effect legalizes forced evictions under certain circumstances, while handing virtual unchecked power to the executive to decide what proposed development projects should be considered of public interest. Local NGOs have also raised other issues in the draft with Amnesty International, including the absence of any complaints mechanism for affected persons until after eviction. It does not appear that the UN Special Rapporteur's Basic Principles were used as a basis for drafting the sub-decree.
5. Cases of forced eviction
5.1 Sambok Chab: "They dumped us right here"
In May and June 2006, over 1,500 poor families were forcibly evicted from Sambok Chap, an informal settlement that had been in place since the early 1990s on the Bassac river bank. During the course of the eviction, hundreds of poor people were made homeless,87 in particular those who rented housing in the settlement.
Prior to the eviction, residents in Sambok Chap had not been informed about the details of the resettlement plan, and repeated requests from NGOs to the municipality for consultation and discussion about the eviction and relocation had been denied, as had efforts by NGOs to assess the true numbers of those who would be affected.88 Human rights organisations monitoring the lead-up to the eviction told Amnesty International that no evidence of competing title nor any eviction order was communicated to the residents, many of whom had lived on the land for years, and they were not informed of any basis for challenging any eviction order.89
The resettlement of Sambok Chap, also called Village 14, was to make way for a private real estate company, which was reportedly granted legal title to the land in the 1990s. Since allegedly acquiring title to the land, the company had not utilised it and had permitted the informal settlement to gradually expand. The company's land redevelopment plans were not disclosed publicly or to community representatives prior to the eviction, but the municipal governor of Phnom Penh, Kep Chuktema, indicated that the shelters of the community "pollute our city's beauty".90 The development plans remain unknown.
Initial consultations about resettlement between the municipality, authorities and some residents were patchy and withered after a number of representatives of the community requested basic services to be in place before relocation, while others rejected the proposed site which they felt was too far from the city to ensure the sustenance of their livelihoods. There were no meaningful renewed efforts to resume consultations with representatives of all residents.
However, the company, the Municipality of Phnom Penh and some groups of house owners reached an agreement on replacement land, provided by the company, for a number of the house owners in Trapeang Krasang, some 20 kilometres from Phnom Penh. The authorities had failed to ensure basic infrastructure and services such as drinking water, sanitation and electricity on the resettlement site.
The municipality openly rejected any responsibility over the situation of the thousands of tenants, with whom there had been no consultation at all. Instead, tenants were left to their own devices for weeks. Responding to a question from ABC Radio Australia about where the tenants were to go following eviction, Phnom Penh's governor Kep Chuktema explained:
"We don't know, because they rent."91
The first stage of evictions started on 3 May 2006 when police, demolition workers, local officials and house owners began dismantling houses, the latter following threats and intimidation. Some residents refused to move on account of the new replacement land lacking electricity and water. Tenants, who were to be made homeless, also resisted dismantling their homes.
A number of evictees told Amnesty International that the security forces gradually became forceful during the course of the month-long eviction; intimidation and harassment were widespread, while personal possessions were also demolished.
The homeless former tenants stayed under tarpaulins and temporary shelters on the site throughout the month-long eviction process which took place at the onset of the annual rainy season. NGOs faced barriers to providing humanitarian assistance to those affected as their living conditions deteriorated. Authorities regulated access to the area which had been fenced in and was kept under guard. On 31 May riots erupted following the alleged injuring of a child and a pregnant woman by security guards. Enraged villagers reportedly tore down the fence, set ablaze the house of the deputy village chief and destroyed the village office.92 Within days of the riot, police had arrested nine people.
Three of those initially arrested were charged with wrongful damage to property,93 among them local newspaper journalist Hem Choun, 47, and two villagers-- Chhen Sovann, 45, and Chan Ra, 48. On 30 November 2006, they were convicted for damage to property, based on the testimony from one witness who was not present in court, according to their defence lawyer.94 The men were sentenced to two years imprisonment, which they are serving at Phnom Penh's Prey Sar prison.
*Srey Mom and her three children were among thousands of people who were displaced in the forced eviction on 6 June. In a pre-dawn operation, 600-700 heavily armed riot police and military police sealed off the area, removed UN human rights staff, NGOs and journalists who had been monitoring the situation, deleted memories from cameras and prevented any audio recordings. As Srey Mom told Amnesty International:
Srey Mom and her three children were resettled on a flood plane in Dangkor district, over 20 kilometers from the centre of the city, from where they had been relocated. After some time they were given a plot measuring four by six metres at Andong village, the designated resettlement site for the Village 14 tenants. She believed that the family had been promised land titles to the plot they were given after they had resided there for five years. A year after the forced eviction, Srey Mom and her children continue to live there under a leaky tarpaulin decked shed.
"In Phnom Penh, my son and I were scavenging recyclables", Srey Mom told Amnesty International. "We would earn from 3,000 to 5,000 Riel each day" [approx 0.75 to 1.25 USD].
In Andong, she faced even greater obstacles to earning a living sufficient to secure a life with dignity. "Without rice and water, how are we to survive?"
Pen Sary, 28, a single mother of an eight month old infant who was also affected by the forced eviction on 6 June, had been told by security forces that she would be given land at the new site and that she did not need to bring anything with her.
Ill-health is wide-spread, especially among children. According to Ratanak, a local medical doctor interviewed by Amnesty International, skin disease, dengue fever and malnutrition are commonplace and at least three children have died of dengue, one of malnutrition.
Similarly, the lack in Andong of clean water and health clinics appears to have had an impact on the health of the evicted persons, particularly the children, as there is reportedly an increased prevalence of diarrhea, skin infections, malnutrition and respiratory infections.
5.2 Kbal Spean: Dispute turned to deadly violence
Kbal Spean is a village near the north-western town of Poipet. The majority of the village's population worked as porters, carrying or carting goods across the nearby Cambodia-Thai border, others as subsistence farmers. On the morning of 21 March 2005, over 120 security forces -- police, military police and reportedly a third unidentified uniformed group arrived at the village. They were followed by around 50 demolition workers. 95
The forces divided into sections and encircled the village. Reports given to Amnesty International from local human rights workers detailed how police fired their guns into the air as they entered the village. As community members put up resistance and threw stones more shots were fired, whilst houses were set ablaze and bulldozed. In the commotion most villagers were not even allowed or able to salvage personal belongings.
By the end of the eviction five men had been shot dead, at least 40 were injured, including 14 seriously, and 30 people had been arrested. According to an in-depth study by the Cambodian Human Rights Action Committee, a network of local non-governmental organizations working in the field of human rights, 218 houses had been burnt down or demolished and the former population of Kbal Spean lost their homes and most of their possessions.96
The villagers, some returnees from refugee camps in nearby Thailand and others demobilised soldiers, cleared the land of mines themselves, at times triggering explosions which caused both death and injury. Subsequently, local authorities arranged distribution of land and issued a range of documents to the community, including specific housing numbers on their land plots.
With the opening of an official border crossing to Thailand in 1998, as the war was coming to an end, Poipet transformed into a bustling border town. A casino boom ensued, and in the area immediately adjacent to Kbal Spean village casinos, golf courses and hotels catering for visitors from Thailand have mushroomed, inflating land prices.
In 1998, a man previously unknown to the villagers reportedly took over as the formal village chief. Within a year he lodged a complaint, based on an allegedly invalid title, to the Banteay Meanchey Provincial Court claiming he owned over 51,000 square metres of land where the village was located and that the villagers were "illegal squatters". On 18 November 1999 the Court decided in favour of the "village chief" after a hearing in which the Court failed to hear any witnesses on behalf of the community, or to allow legal representation for the villagers.97 In effect the Court granted him the land title. Despite complaints of the numerous irregularities at the Provincial court level, the decision was upheld by the Appeals Court in February 2001.98
Although no consultations about resettlement had taken place with the villagers, three attempted evictions reportedly took place between the Appeals Court decision and the eventual forced eviction in March 2005.99 The Kbal Spean community maintain that they had been given no formal notice that they were to be evicted.
After eviction, the families set up temporary shelter near their ruined village, rejecting an offer by local authorities to relocate to an area several kilometres from the village. The location, they argued, was too far from the border crossing: they would lose their livelihoods. Despite the risk of another eviction, the evictees moved back to the village after about one month, rebuilding their demolished homes.100
Following the deadly violence the Deputy Governor of Banteay Meanchey province, An Sum, said that "We are conducting more investigations to find out what exactly happened" 101 and within days the authorities set up an inter-ministerial commission of inquiry to investigate the violent course of events. The commission identified the officers in charge of the eviction, and established the number of security forces present as 124. Subsequently two district police were temporarily detained.102
Honorary President of the ruling Cambodian People's Party Heng Samrin also pledged clarity. He told reporters in Phnom Penh:
By August the court dropped charges against the suspects.105 Investigating judge Nil Nonn told the press that there was not enough evidence to prosecute. The reports of the commission of inquiry were never forwarded to the Battambang Court, and the families appealed against the decision.106 A human rights worker in Battambang told Amnesty International that the human rights workers and villagers alike were upset by the decision.
"If [the Court] had wanted, they would have been able to find those who fired the shots."
The case is pending at the Court of Appeal.
By mid-May 2006 the provincial authorities, reportedly acting on the instructions of Prime Minister Hun Sen, mediated an out-of-court settlement between the evicted families and the village chief. The families were granted ownership of four out of five hectares of the land, retaining 8 x 20 meter plots of the 10 x 20 meters that they originally had had. No further problems have been reported since.
Following the forced eviction and killings, gifts were given to the families of the dead: Chuong Prasoeuth, acting chief of cabinet in Banteay Meanchey, told the Phnom Penh Post that the provincial authorities provided 100 kilos of rice and 300,000 Cambodian riels (approx 75 USD) to each of the five families. Furthermore, district and commune officials handed over 200,000 riels (50 USD) to the families.107 However, no effective remedy has been provided to the victims and families following the killings and injuries, nor have villagers received compensation for property lost in the fire or demolition during the forced eviction. So far no one has been held responsible for the excessive use of force, including the killings of five men.
5.3 Mittapheap 4: Making poor people homeless
In the mid-1980s, 17 families moved into the area; they have remained on the land, including parcels of farming land, till this day. As their extended families have moved to the area and as their children have established their own families, the land has been subdivided to smaller plots.
The forced eviction followed a land dispute which emerged in 2006 when an individual, reportedly the wife of a high-ranking official, filed a complaint with the Mittapheap 4 commune chief, and sent letters to the Ministry of Interior, the National Assembly and the Senate, claiming the villagers were "illegal squatters" living on her property. The complainant has reportedly never presented any title deed or other documentation such as transfer contracts supporting the complaint.
Yet the complaint led the district authorities, on 26 October 2006 to issue an eviction notice without due judicial review and for the law enforcement agencies and the military to implement. The villagers were provided with no opportunity to challenge the decision. The eviction notice claimed that the village enveloped state public land, state private land, and private land109 belonging to the complainant. With no element of consultation, local authorities offered the original 17 families who had settled in the area in the 1980s US$ 500 each or resettlement to an area too far from the sea for them to continue making a living from fishing. The villagers turned down both offers.
Two weeks later 53 families lodged a complaint with the Senate Committee on Human Rights, stating they had been threatened with forced eviction from land that was rightfully theirs. In an unusual step, the Committee informed the Sihanoukville Governor about the complaint and that it was launching an investigation. The investigation concluded that the case was a civil matter that should be settled by the courts.
On 19 January 2007, the community received a second eviction notice, this time signed by the Municipal Governor Say Hak, who gave the villagers only one week notice to vacate their homes. As with the earlier eviction notice, it was issued without a court decision.110
Early morning on the day of the eviction, a number of police armed with AK47s and in riot gear arrived at the village, ordering villagers to vacate their homes. Some women attempted to negotiate to delay the eviction, but police refused. Clashes broke out; police fired live ammunition into the air and ground, villagers threw stones and bottles and defended themselves with a barbed wire barrier. Police retreated, then returned with a contingent of roughly around 150 security forces, including soldiers and military police.
Villagers and human rights monitors reported that the forces were accompanied by an excavator and two water trucks filled with a mixture of water and gasoline. Security forces again shot into the air and onto the ground, while also beating people with electric batons. Eighteen villagers, 13 men and five women, were injured, many of them knocked unconscious. Two police officers were also injured.
Security forces continued the demolition in the village and also reportedly removed valuables from the villagers, including 16 motorbikes. They then proceeded to burn down up to 80 homes, including clothes and whatever belongings had not been taken by the government forces. A further 26 houses were demolished.
Following the violence, the 13 injured men were arrested, beaten and taken to prison, where they were reportedly interrogated. The detainees were charged with "battery with injury" (Article 41 of the so-called UNTAC Law, which remains in force111) and "wrongful damage to property" (Article 52).
The men were represented by lawyers from Licadho, a leading Cambodian human rights NGO. They were tried on 3-4 July 2007 in the Sihanoukville Municipal Court for their role in the violence that took place during the eviction, which had destroyed their houses and most of their belongings.112
The legality of the eviction and the way it was carried out was in no way examined during the hearing and there was no attempt to establish responsibility for the violence and destruction.
Nine villagers were found guilty, despite the fact that prosecution failed to produce evidence linking the individuals to the crimes they were accused of. No witnesses could identify any defendant with alleged injuries or damage to property.
Three were convicted for "battery with injury" and "wrongful damage to property." Four were found guilty of complicity, for having "gathered stones" to assist those who threw stones at the intervention force or for attempting to destroy public property by throwing stones at a fire truck. The attempt had failed: no damage was caused, the court concluded, according to the judgment.
Two men were sentenced, one in absentia, to eight months, four of which were to be suspended. Seven others were sentenced to 75 days each, completed on 4 July 2007.
Five men were acquitted, including one minor who according to trial monitors claimed in court that he had been forced to confess to involvement.
T he prosecutor appealed against the nine sentences, which he perceived as too light,113 so those convicted have not been released, even though they have now served their term, pending the hearing at the Court of Appeal, which has not been scheduled but may take up to several years. This clearly constitutes arbitrary detention. Amnesty International calls for their immediate release.
As a result of the eviction, the families, mostly small-scale fishermen and beach vendors, lost most personal possessions, including their fishing nets and other equipment, as well as the shelter of a home. At the time of writing this report over 90 of the families have established basic shelters in very cramped conditions on the side of a road near their former village; they lack basic shelter, food, drinking water and basic sanitation as well as the means of earning a living. Many of the children are unwell with cold, fever or diarrhea.
As one villager told Amnesty International:
Journalists covering topics such as land grabbing and illegal logging which deprives forest communities of their livelihood have received death threats. NGO staff, including lawyers, have been threatened with legal action involving criminal charges for their work with local communities entangled in land disputes and facing eviction. Charges have been brought against numerous local activists seeking to protect what they perceive is their land. Indigenous leaders have been barred by provincial authorities from leaving their province to take part in meetings and seminars on the topic of Indigenous Peoples' rights.
Numerous human rights defenders seeking to protect land, the environment or forests told Amnesty International of fear of attack, arrest and coercion.
6.1 Arrests and attacks
"We are all feeling very uneasy to talk. Once before when people came and interviewed us [about the situation] we told them everything. A few days later we were summoned to Court", Ravy, a 49 year-old soup-kitchen proprietor and informal representative of a village in Siem Reap, told Amnesty International.
She was taken directly from the Siem Reap courthouse to prison, where she remained detained, accused of "incitement to commit a crime". After 12 days Ravy was released following Prime Minister Hun Sen call in March 2005 to release all detainees held in relation to land disputes.
She had been protesting against the authorities' bulldozing a fence in her village, the legal status of which is an ongoing dispute between villagers and the Apsara Authority, the government body mandated to manage the Angkor temples and surrounding areas.
Following two separate armed attacks and attempted murder of two community forest activists in 2005, another activist told Amnesty International:
6.2 Coercion of Indigenous Peoples
Representatives of Indigenous Phnong People116 affected by a pine tree concession in the eastern province of Mondulkiri, have also come up against obstacles when seeking to protect their land. The authorities had carried out no consultations with the Phnong prior to the conclusion of the concession agreement between the government and the company in August 2004. Instead, once the agreement had been reached, local commune leaders told Amnesty International that they had been intimidated by provincial authorities into thumb-printing and sealing their approval on a map, which constituted an agreement. One of them told Amnesty International how he was intercepted by the authorities as he travelled by moped on an isolated road and coerced to thumbprint the map; another reportedly had to sign it at the house of a high-ranking official in the provincial capital, in the presence of military police and representatives of the company.117
By 2005, the emerging pine tree plantation had already had a significant impact on the lands, territories and resources of the Phnong. It had enveloped and partly destroyed farmlands, forests and crops, grazing land, ancestral forests and traditional burial sites around the villages.118 In addition this encroachment impacted on the culture of the Phnong, whose beliefs, religious practices and traditional environment are intimately associated. The forest in particular is central to the spiritual life of the Phnong who worship sacred areas of spirit forest.119
In July 2005, the UN Special Representative of the Secretary General for Human Rights in Cambodia called on the government to cancel the concession:120
The release in June 2007 of a report from Global Witness,122 a UK based NGO campaigning against exploitation of natural resources, further highlighted the precarious climate in which human rights defenders find themselves. The report was banned in Cambodia and senior public figures, including Hun Neng, brother of the Prime Minister and a provincial governor, publicly threatened to "hit [Global Witness staff] until their heads are broken," according to a media report.123
"The threat against our staff is entirely unacceptable," Global Witness Director, Simon Taylor said in a press statement.124 "Such crude intimidation by a senior public official says little for the government's commitment to upholding human rights and freedom of expression."
Journalists covering the story received threats and were harassed, some lost their jobs. Other individuals, perceived by the authorities as being part of the production of the report, were subject to harassment and intimidation, ranging from surveillance to death threats.
All those who are peacefully struggling for the realization of the fundamental rights proclaimed in the Universal Declaration of Human Rights are human rights defenders. Some work in human rights organizations, student and youth groups, religious groups, trade unions, women's or development associations; others are lawyers, journalists, teachers, farmers or unemployed.
The majority of human rights defenders work at the local or national level, supporting respect for human rights within their own communities and countries. In such situations, their main counterparts are local authorities charged with ensuring respect for human rights within a province or the country as a whole.
Amnesty International is increasingly concerned over the integrity of courts and the narrowing space in which individuals and groups can act in defense of human rights, including in the particular context of forced evictions.
7. Conclusions
The management of Cambodia's land and natural resources is often described as being in a state of crisis. After a visit to Cambodia in 2005, the UN Special Rapporteur on Adequate Housing as a component of the right to an adequate standard of living, Miloon Kothari, described what he encountered as "a frenzy [...] across the country by the rich and powerful in Cambodia to acquire land."129 Forced evictions are an intrinsic part of this crisis.
The Cambodian authorities are not only failing to protect - in law and practice - its population against forced evictions, but are also actively involved in such acts, which contravene international law. Participation and consultation have been lacking; information on evictions and resettlement has been incomplete and, clearly, forced evictions have not been seen as a last resort. Instead, and in breach of international human rights law and standards, the authorities have opted for eviction long before all other alternatives have been explored.
The lack of transparency and outright secrecy surrounding the cases also deprive affected communities of the possibilities to seek legal redress and to realize their own human rights, including the right to an adequate standard of living.
As at least 150,000 Cambodians across the country are known to live at risk of being evicted in the wake of development projects, land disputes and land grabbing, there is an urgent need to complete the legal framework to protect the population from forced evictions and further to protect the right to adequate housing and land rights of Indigenous Peoples. Amendments to the law should include: a clear prohibition of forced evictions; steps to recognise and protect the rights to lands, territories and resources of Indigenous Peoples; a review to ensure that any limitations to housing and land rights are consistent with international human rights law, including that they are necessary, pursue a legitimate aim and are proportionate to achieving that aim.
Legislative change alone will, however, not be enough. Although both the legal framework and the policies have serious shortcomings in terms of compliance with the international human rights treaties by which Cambodia is bound, it is clear that the forced evictions seen across the country do not emanate from these short-comings alone. Forced evictions take place in the vacuum created by a systematic lack of enforcement of the legal framework and the failure to act on the words in policy documents.
It is evident from the cases presented in this report that there were no "exceptional circumstances" to justify the evictions. Nor had "all feasible alternatives" been explored or the procedural protections been followed, including requirements for information, consultation and participation for those affected and for provisions of adequate alternative housing or land. Without access to information and cut off from participatory consultation they were also deprived of any conceivable opportunities to make long-term choices about strategies for the future. In all three cases, people were made homeless and two cases also highlighted the trend of forcibly evicting people before a final settlement of land disputes have been reached by courts. This shows the clear need to develop national eviction guidelines, which should be based on the Basic Principles appended to this report and should be consistent with international human rights law.
Land titles may offer some security of tenure. However, given the selective and arbitrary law enforcement they do not provide guarantees against loss of ownership and/or forced eviction. As seen, the prevalent element of collusion between influential or well-connected claimants to land and local authorities opens the door for dubious land titles, unlawful authorisations leading to land title transfers, the issuing of eviction orders at whim, lack of procedural protections for victims and the apparent use by authorities of the court system to prevent victims from acting to defend their rights. Concrete and effective measures are needed to ensure to the entire population a degree of security of tenure sufficient, at least, to protect them from forced evictions, and other threats or harassment.
The opaque system by which economic land concessions are granted follows the same pattern: Negotiations between companies and authorities are not disclosed; agreements and detailed information on the companies -- including ownership -- are kept away from public scrutiny; public consultations and environmental and social impact assessments are non-existent. There is also a need for clearer legal and policy standards on freedom of information, consultation and participation, in line with the requirements of international human rights law.
The problem of selective and arbitrary law enforcement, a systemic bias of the judiciary in favour of those with connections to the powerful, endemic corruption and impunity are key elements blocking rule of law and accountability, which in turn deprives ordinary Cambodians of their human rights.
Equality before the courts is a key human right130and the court system is a crucial element in ensuring redress to human rights violations. For the poor and marginalized Cambodians, including Indigenous Peoples, who do not have powerful contacts, this is far from reality.
The patterns of patronage networks and lack of accountability hold sway and set the conditions within which laws are arbitrarily applied, if at all, and human rights are left unprotected. So long as the political will to break these patterns is weak or indeed missing, the powerful will be able to arbitrarily expropriate, with impunity, land and resources from the poor and marginalized whose support systems do not provide strong enough leverage. By complying with its human rights obligations and ensuring an end to forced evictions, the Cambodian government would show such political will and extend protection of human rights of the population.
8. Recommendations
To the Cambodian authorities:
Immediately stop and prevent forced evictions:
Uphold the rights of Indigenous Peoples under national and international laws and standards, including the UN Declaration on the Rights of Indigenous Peoples, including through:
AI Index: ASA 23/002/2008 Amnesty International February 2008
"Now we have to pin our hope to NGOs. People are no longer capable of depending on themselves. We are short of money and rice. Before, we did some farming, and now we no longer have fields to plant rice. Before (...) I was able to feed my seven children. Now there is nothing."Vireak's home where he lived with his seven children was set ablaze as law enforcement agents and military cleared their village on 20 April 2007. Without consultations, due process of law, legal or other protection, and with no consideration of adequate alternatives, his and over 100 other families were forcibly evicted.
Vireak, Mittapheap 4 village
Like many thousands of other Cambodians who have been forcibly evicted, Sophal also lost access to natural resources which they relied on to earn a living -- in his case, land used for subsistence rice farming.
The "pro-poor" policies of the Cambodian government, supported by its international donors, stand in sharp contrast to the realities experienced by Vireak, his children and others who have lost homes, belongings and means of earning a living in unlawful forced evictions.
A forced eviction is 'the permanent or temporary removal against the will of individuals, families and/or communities from the homes and/or land which they occupy, without the provision of, and access to, appropriate forms of legal or other protection'.1Forced evictions have been recognized by the UN Commission on Human Rights as a gross violation of human rights,2 and are also -- as in the cases presented here -- associated with other human rights violations.
As a party to the International Covenant on Economic, Social and Cultural Rights (ICESCR), and other international human rights treaties which prohibit forced eviction and related human rights violations, Cambodia has an obligation to stop forced evictions and to protect the population from forced evictions.
This report shows how, contrary to Cambodia's obligations under international human rights law, those affected by evictions have had no opportunity for genuine participation and consultation beforehand. Information on planned evictions and on resettlement packages has been incomplete and inaccurate, undermining the rights of those affected to information, and to participate in decisions which affect the exercise of their human rights, in particular the right to adequate housing. The lack of legal protection from forced eviction, and lack of regulation of existing standards has left an accountability gap which increases the vulnerability of marginalized people, particularly those living in poverty, to human rights abuses including forced evictions.
In instances where there has been some level of consultation with affected communities, decisions on relocation appear in reality to have been taken by the authorities beforehand, frustrating the right of affected people to propose alternatives and for those to be duly considered by the authorities. The cases presented in this report show how, again contrary to international human rights law, the authorities have opted for eviction long before all other alternatives have been explored.
Endemic problems in Cambodia, including a lack of transparency and outright secrecy also contribute to delays in communicating eviction orders to affected communities. Lack of proper notice and consultation further deprives the affected of their opportunities to seek legal redress and to realize their own human rights, including the right to an adequate standard of living.
Although there have been some positive recent signs, including repeated calls by Prime Minister Hun Sen for an end to land-grabbing and sporadic action against people involved in land theft, the Cambodian government has not demonstrated political will to ensure an end to forced evictions or the factors leading to them. Instead government representatives are seen to be involved in or standing by as the law is applied arbitrarily or by-passed altogether, in ways that grant impunity to those in political or economic power for arbitrarily expropriating land from marginalized people living in poverty.
As long as this pattern is allowed to go on, hundreds of thousands of Cambodians live under threat of being forcibly evicted -- in Phnom Penh, Sihanoukville and urban centres, but increasingly also in rural areas.
Amnesty International urges the Cambodian government to end all forced evictions and to introduce a moratorium for all mass evictions until legislative and policy measures are in place to ensure that any evictions as are necessary are conducted only in full compliance with international human rights laws and standards. The organisationbelieves that such steps would send an unambiguous signal that the Cambodian government is intent on tackling land-grabbing, the spread of landlessness and increase in land disputes, while upholding its obligation to protect the right to adequate housing as a foundation for the achievement of its pro-poor agenda as spelt out in the Rectangular Strategy and the National Poverty Reduction Strategy.
This report is based on field visits in March 2006 and June 2007, as well as additional background research of media articles, reports and communications on issues relating to land, housing, natural resources, law and legislation. The March 2006 field visits covered four areas where disputes over land and/or natural resources were ongoing. In 2007 Amnesty International also conducted interviews with evictees in Phnom Penh and Sihanoukville. Names of individual victims of human rights violations have been changed for their protection.
2. Historical background
Mass forced eviction and forced displacement is not a new phenomenon in Cambodia, and the context in which mass relocation historically has taken place provides partial explanation as to why forced evictions are fast becoming one of the most widespread and systematic human rights violations affecting Cambodians.
During the protracted civil war both urban and rural populations were uprooted against their will: between 1970 and 1975, Phnom Penh's population swelled as rural dwellers took refuge in the city when their homelands turned into frontlines or came under US bombardment as the Viet Nam war spilled over the border into Cambodia.
Under Khmer Rouge rule (April 1975 - January 1979) urban populations were forced out to the countryside as cities were emptied and abandoned, giving way to radical and brutal collectivization. Up to two million Cambodians died or were killed, among them most of the skilled workforce; infrastructure and administration were destroyed, including records of land registration and maps.
Towards the end of this period and during the first years of war that ensued between the ousted Khmer Rouge and the new Viet Nam installed government under the People's Republic of Kampuchea (PRK), hundreds of thousands of Cambodians fled to Thailand. Others sought protection inside the country away from fighting, famine and the humanitarian crisis that the Khmer Rouge left behind.3
Throughout the 1980's, Phnom Penh was slowly rehabilitated and re-populated, mostly by rural Cambodians; many of the original city dwellers had not survived the Khmer Rouge years.4 Pressures on land and housing were limited, and people took over houses and land on an ad hoc and unregulated basis, though better, less dilapidated houses tended to be granted by the authorities to soldiers and public officials.5Although private ownership rights were not recognized, informal occupation rights gained increasing foothold and became de facto transferable, if not legally so.
In 1989 the government reinstated private property rights by decree,6granting farmers possession rights to plots of up to five hectares after five years of continuous cultivation, and households the right to obtain ownership titles to residential plots up to 2,000 square meters.7 Private property rights were subsequently given constitutional protection in the April 1989 Constitution of the State of Cambodia,8Article 15 of which set out that citizens had "full right to own and use land and have the right to inherit land granted by the state for the purpose of living on it and exploiting it."
This marked an ideological shift, which initiated economic and political reform, involved the withdrawal of Vietnamese troops -- and paved the way for the emergence in the 1990's of competition over land and natural resources. Cambodia was edging towards peace amidst the 1991 Paris Peace Agreements, as well as towards market economy; the UN was setting up a massive operation, with over 20,000 troops and officials entering the country. Local populations remained unsettled, including returning refugees from the border camps, while population growth sped up, all of which brought change to the housing market. Land, particularly in Phnom Penh, became increasingly valuable and an object of speculation;9as the cost of land in the city became prohibitive, particularly for the accelerating influx of rural migrants, informal settlements mushroomed across Phnom Penh. Over a dozen forced evictions in Phnom Penh, particularly from slum areas, are reported to have taken place at this time, but comprehensive details about them are not available.
Between 1993 and 1999, the government granted concessions for around one third of the country's most productive lands for commercial development by private companies.10 These companies were involved in logging, agriculture, mining, tourism and fisheries, activities which affected the populations who resided on or earned their livelihoods from the concerned areas or resources. However, data on forced evictions resulting from these concessions is limited.
3. The current context
There is growing information about both urban and rural forced evictions of more recent date. Human rights groups, donors and UN agencies have increasingly raised alarm about various factors that lead to forced evictions and displacement, including economic land concessions, land grabbing, land disputes and a lack of rule of law.
The UN Special Representative of the Secretary General for Human Rights in Cambodia has issued two reports about economic land concessions, showing the serious consequences for the local populations of activities of concessionaires, including dispossession and impoverishment.11According to the most recent report, from June 2007, "[e]ncroachment on agricultural and grazing land, and resulting loss of livelihoods, continues to be the most commonly-voiced issue of concern for communities, and arises in relation to almost all active concessions."12
Development and so-called "beautification" projects, including slum clearance and construction of roads and other infrastructure, have also resulted in displacement, particularly in urban and peri-urban areas. According to the World Bank, between 1998 and 2003 the Phnom Penh municipality forcibly evicted 11,000 families, mostly urban poor living in informal settlements in or near the city centre.13 Since then forced evictions have reportedly displaced well over 30,000 people in Phnom Penh alone.14 Some 150,000 Cambodians across the country are known to live at risk of being forcibly evicted.15
Urban forced evictions are at times widely reported in the media and monitored by human rights groups, including networks of non-governmental organisations (NGOs) such as the Housing Rights Task Force and the Resettlement Action Network.
Although forced evictions in Cambodia are often depicted as an urban phenomenon, a growing share of cases take place in rural areas as competition over land, aquatic and forest products and other commonly held resources is on the increase.16 In rural areas, however, the scope of forced evictions and the number of persons affected are unclear: limited infrastructure makes it hard for isolated communities to voice their grievances beyond their locality. They often have more limited knowledge of their legal rights, including knowledge of the right to participation in decisions that affect their lives, and their localities are less accessible to NGOs that may be able to investigate incidents or raise awareness. Indigenous Peoples, who mainly live on traditional land in the north-eastern provinces of Mondulkiri and Ratanakiri, are particularly marginalized and often unable to assert their rights in this regard.
Landlessness, an unaddressed cause of which is forced evictions, is increasingly widespread among rural Cambodians. The number of landless rural households grew from 12.6 percent in 1997 to nearly one in five in 2004.17
Linked to the problem of landlessness is the lack of security of tenure, particularly among people living in poverty. The likelihood of obtaining a secure land title increases with income: in 2004, among the poorest fifth of the population,18 only 40 percent had documentation to prove ownership, whereas around 60 percent of the richest fifth held such documentation.19 Although the perception of traditional possession rights remains strong and may provide a degree of tenure security despite the lack of documentation, it is specifically among the vulnerable, poorer households living on land contested by the state, that lack of legal title leads to insecure tenure.20
Oxfam Great Britain has collated nationwide data of over 1,800 large-scale land disputes in which ordinary Cambodians have turned to some dispute resolution mechanism for assistance after having lost land.21In terms of documentation to prove ownership of disputed land, the majority of complainants, two thirds of whom were farmers, had no documents or ownership titles "because they thought that the land they occupied belonged to them."22 Only four percent had applied for formal title registration and around one in five had a receipt of purchase to support ownership claim.23At the same time, 56 percent had occupied the land for five years or more at the time of the survey (2004), which would give them strong claims to ownership of the land under the 2001 Land Law (Article 31). The Oxfam study also reported that the largest groups of defendants, i.e. those accused by claimants of having grabbed land, were civil government authorities (41 percent); the military (23 percent), and business (11 percent).24
3.1 Institutions and structures
The Ministry of Land Management, Urban Development and Construction (hereinafter Ministry of Land) has primary responsibility for land management and administration; it develops land policy together with the inter-ministerial Council for Land Policy and has co-drafted a housing policy, yet to be adopted. The ministry is also in charge of registration, distribution and titling of land and for management of state-owned land.25
Several other government entities have roles related to various aspects of land and housing policy. The Ministry of Agriculture, Forestry and Fisheries is responsible for agriculture and economic land concessions, although monitoring economic land concessions also falls within the remit of the Ministry of the Interior. Other entities involved include the Ministry of Defence, which is responsible for Military development zones, the creation of which has been associated with forced evictions; the Ministry of Rural Development, as well as sectoral Technical Working Groups, which include representatives of donors and from the government. Courts, the Cadastral Commission and the National Authority for the Resolution of Land Disputes are all involved in resolution of land disputes. Most entities also have a multi-tier administration: at the national, provincial, district and commune levels, mandated to implement certain parts of plans and policies, at times overlapping, often lacking clarity.
Land dispute resolution
The Cadastral Commission, under the Ministry of Land, was established in 2002 under the Land Law. One of its central duties is to investigate and resolve land disputes over unregistered land.26 Resolution of disputes over registered land is the domain of courts.
However, in view of the massive increase in land disputes in the past five years and apparent inability of the Cadastral Commission and courts to solve them, the government launched by royal decree the National Authority for the Resolution of Land Disputes (NARLD) in February 2006. It is mandated to take up cases or complaints that are "beyond the jurisdiction of the National Cadastral Commission",27 but given the division of jurisdiction between the Cadastral Commission and court, NARLD's mandate appears to overlap with existing structures. The process of establishment and its membership also represents a further concentration of executive authority in Cambodia.
3.2 Government policy -- key documents
Launched by Hun Sen in July 2004, the "Rectangular Strategy for growth, employment, equity and efficiency in Cambodia" (2004-2008) is the government's central economic policy document, and it is described as a tool to implement its policy agenda, including the more elaborate National Poverty Reduction Strategy (NPRS). The NPRS (2006-2010), in turn, is Cambodia's poverty-reduction strategy which is a requirement of the International Monetary Fund and the World Bank, in order to qualify for debt relief.28
At the heart of the Rectangular Strategy is "good governance", which according to the document, requires wide participation, enhanced sharing of information, accountability, transparency, equality, inclusiveness and the rule of law. Broadly speaking, the government undertakes to "promote sustainable and equitable development, and strengthen Cambodia's social fabric to ensure that the Cambodian people are well-educated, culturally advanced, engaged in dignified livelihood and living in harmony in family and society."29
The strategy document does not establish roles and responsibilities to eradicate forced evictions, and includes ambiguous and concerning pledges to achieve the "eradication of illegal settlements". It does however identify the urgent need to continue land reform and pledges to tackle "land tenure security and ...land grabbing, and control of land ownership concentration for speculative purposes."30 Amnesty International is concerned that these goals should be pursued only as consistent with international human rights law. In this respect the "eradication of illegal settlements" should be understood as a commitment to take steps, together with those living in informal settlements and with their active participation, to realise their human rights, including their right to adequate housing. It should under no circumstances be understood as a license to undertake forced evictions.
A Land Policy was adopted in 2001 and updated through the Interim Paper on Strategy of Land Policy Framework (2002) by inter-ministerial Council for Land Policy. The policy papers do not expressly commit to eradicating forced eviction, but the Interim Paper appears to set a direction: "The policy consensus which is emerging is that forced evictions should be avoided as much as possible, and that if compulsory relocation is required, then both adequate preparation time, and adequate relocation sites must be provided." It also says that the guidelines in the so-called Habitat Agenda will form "a basis for consolidating policy in this area".31
A report of the Ministry of Land from 2004 took stock of the "involuntary resettlement" policy of Phnom Penh between the late 1990s and 2002, and concluded that "new sites were on the peripheral lands and not adequately equipped with basic infrastructure and services and lacks economic opportunities. The policies further impoverished the poor. Having seen such an impact (...) the Government in turn attempts to include the poor in its land development programs so as to achieve the goals of poverty reduction and equitable economic development and identifying areas for low-income people, while tends to provide them with land tenure to protect them from severe land markets."32
This discussion paper followed the announcement in May 2003 by Hun Sen of an urban housing policy that would entail upgrading annually 100 inner-city poor communities for five years.33 Since then, the Ministry of Land with the assistance of the UN agencies, has prepared a draft housing policy, explicitly described as part of its poverty reduction efforts.34 The draft presented a range of initiatives, including the provision of short-term tenure security in Phnom Penh for all informal settlements. This would also entail determining suitability of upgrading, a process that was estimated to take nine months, during which there would be a moratorium on evictions and relocation.35
Surveys were scheduled to determine which settlements on state land are suitable for medium to long-term tenure security and upgrading. For areas deemed unsuitable for upgrading initiatives, "relocation should be avoided if at all possible." An independent complaints mechanism was proposed for affected communities, and any relocation should be "to a site as close as possible and with reasonable access to livelihood opportunities and services. Adequate compensation and preparation time will also need to be provided" as well as some security of tenure. Amnesty International is concerned that neither the Interim Paper nor the draft housing policy clarify the roles of the affected populations in determining whether or not an informal settlement is suitable for upgrading. The documents also lack assurances of participation of and consultation with affected communities that are slated for resettlement. The housing policy has not been formally adopted.
Finally, the Cambodian government retains a policy of granting companies leases for up to 99 years for commercial developments in exchange for a fee and investments. The 2001 Land Law defines them as "land concessions for economic purposes", including plantations and agro-industry,36 with an aim to increase investment, job opportunities and rural livelihoods and to generate state revenue.37 By the end of 2006, 14.5 percent of Cambodia's arable land was leased out to concessionaires.38
4. International human rights law and standards, domestic legislation
As a State Party to the International Covenant on Economic, Social and Cultural Rights (ICESCR) the Cambodian government is legally obligated to respect, protect and fulfil the right to adequate housing as provided by Article 11(1):
"The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international co-operation based on free consent."The right to adequate housing is also recognized under other international binding treaties to which Cambodia is a state party, including the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD)39, the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)40 and Convention on the Rights of the Child (CRC)41.
The Universal Declaration on Human Rights as well as international human rights treaties that Cambodia has ratified have been given the force of law within Cambodia through article 31 of the Constitution of the Kingdom of Cambodia:42
"The Kingdom of Cambodia shall recognize and respect human rights as stipulated in the United Nations Charter, the Universal Declaration of Human Rights, the covenants and conventions related to human rights, women's and children's rights." 43This chapter summarizes international law and standards relevant to forced evictions in Cambodia, with references to domestic legislation.
4.1 Prohibition on forced eviction
State parties to the ICESCR and several other international treaties have a duty not to subject their population to forced eviction under the right to adequate housing, with very limited exceptions. The Committee on Economic, Social and Cultural Rights (CESCR), the UN body of experts charged with monitoring the implementation of this Covenant, has stated in a General Comment44 that it "considers that instances of forced eviction are prima facie incompatible with the requirements of the Covenant and can only be justified in the most exceptional circumstances, and in accordance with the relevant principles of international law."45 While many duties on states under the ICESCR require progressive fulfilment, the duty to halt forced evictions is immediate, as is the duty to not interfere with individuals who enjoy the right to housing.
The Human Rights Committee46has expressed concern that forced evictions constitute violations of the ICCPR, in particular of Article 17, which provides, among other things, that "[n]o one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence" and that "[e]veryone has the right to the protection of the law against such interference or attacks."47
The prohibition on forced evictions does not apply to evictions carried out in accordance with the law and in conformity with international human rights law. 48
Cambodian law does not specifically prohibit forced evictions, but Article 44 of the Constitution, which protects the right of all Cambodian citizens, individually or collectively, to own land, contains a broad limitation to the effect that"the right to confiscate possessions from any person shall be exercised only in the public interest as provided for under law and shall require fair and just compensation in advance."
4.2 Protection against forced evictions
As a State party to a wide range of human rights conventions Cambodia also has an obligation to refrain from and protect against forced evictions.49 One of the principal aspects of this obligation is the duty not to allow forced evictions. Another is the duty to protect everyone within its jurisdiction from forced evictions carried out by third parties. Central to such protection is the adoption and implementation of legislation which complies with human rights standards to prevent forced eviction.
In its General Comment on forced evictions (General Comment 7), the CESCR has clarified that evictions can only be carried out when certain procedural protections are applied, including:
- "an opportunity for genuine consultation with those affected;
- adequate and reasonable notice for affected persons prior to the eviction;
- information on the proposed evictions, and, where applicable, on the alternative purpose for which the land or housing is to be used, to be made available in reasonable time to all those affected;
- ...government officials or their representatives to be present during an eviction;
- all persons carrying out the eviction to be properly identified;
- evictions not to take place in particularly bad weather or at night unless the affected persons consent otherwise;
- provision of legal remedies; and
- provision, where possible, of legal aid to persons who are in need of it to seek redress from the courts."50
States parties to the ICESCR must ensure that adequate alternative housing and compensation for all losses is made available to those affected prior to eviction, regardless of whether they rent, own, occupy or lease the land or housing in question. Further, evictions must not "render individuals homeless or vulnerable to the violation of other human rights."52
As a party to the ICESCR Cambodia has an immediate obligation to adopt effective measures aimed at ensuring, at the very least, a degree of security of tenure sufficient to protect the entire population from forced eviction, harassment and other threats. As the CESCR has clarified:
"Tenure takes a variety of forms, including rental (public and private) accommodation, cooperative housing, lease, owner-occupation, emergency housing and informal settlements, including occupation of land or property. Notwithstanding the type of tenure, all persons should possess a degree of security of tenure which guarantees legal protection against forced eviction, harassment and other threats. States parties should consequently take immediate measures aimed at conferring legal security of tenure upon those persons and households currently lacking such protection, in genuine consultation with affected persons and groups;"53To provide guidance to governments on measures and procedures to be adopted in order to ensure that development-based evictions are not undertaken in contravention of existing international human rights standards and do not thus constitute "forced evictions", the UN Special Rapporteur on adequate housing as a component of the right to an adequate standard of living (hereinafter the Special Rapporteur on Adequate Housing) has developed Basic Principles and Guidelines on Development-Based Evictions and Displacement (referred to as the Basic Principles). 54 These guidelines, which reflect and develop existing standards and jurisprudence on this issue, were considered by the Human Rights Council in 2007 and are appended to this report. They include detailed provisions on steps which states should take prior to, during and following evictions in order to ensure compliance with relevant principles of international human rights law.
Amnesty International believes that the Basic Principles represent an excellent guide for the development of national eviction guidelines.
Legal protection against forced evictions is generally weak in Cambodian law. The Land Law, drafted with a view to secure implementation of the property rights guaranteed under the Constitution, consists of general principles that require sub-decrees55 and implementing regulations to be effectively applied. Since enactment in 2001 the legal framework has developed incrementally, but remains incomplete.
Article 35 sets out procedures for the eviction of occupants with no or insufficient title. Such evictions can only be made by a court order upon the request of the person who claims the property, and it falls on the courts to verify and validate such claims. The law also provides that although courts cannot refuse to order an eviction in favour of a person who presents a valid and complete cadastral title, that is, legal ownership, a temporary suspension may be requested by the competent authorities if the eviction "is likely to give rise to instability or to have serious social repercussions" (article 36).
In terms of security of tenure, the Land Law transformed earlier possession rights into ownership rights and limited the principle from previous legislation that possession leads to ownership to land occupied prior to 2001. According to article 31 (Chapter 4) of the Land Law, a person who can demonstrate lawful uncontested possession for a period of five years before the law was enacted (2001) can become the owner of the land. Previously, five years of uncontested possession without any cut-off date could lead to legal ownership.
"Social land concessions" is a systematic land distribution mechanism established under the law, whereby state private land56may be distributed for residential or farming purposes to the poor and homeless families.57 Combined, these provisions protect security of tenure and are seen as a replacement of the old principle of ownership through possession.
Security of tenure is also extended to Indigenous Peoples' lands, providing for collective ownership of those communities. These provisions protect Indigenous Peoples against displacement.58
The Sub-Decree on Economic Land Concessions, signed on 27 December 2005, sets out general conditions that must be met for a concession to be granted, which provide communities with protection against eviction. Chapter 2, Article 4 provides that "the Contracting Authority shall ensure that there will not be involuntary resettlement by lawful land holders and that access to private land shall be respected."
4.3 Rights to participation and consultation
The right of everyone to participate in decisions which affect the exercise of their human rights is strongly grounded in international human rights law and standards.
Both the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights guarantee the right to take part in government or in the conduct of public affairs. According to the Human Rights Committee, interpreting Article 25 of the ICCPR, this includes a right to participate in the formulation and implementation of policy from local to the national and international levels.
"The conduct of public affairs, referred to in paragraph (a), is a broad concept which relates to the exercise of political power, in particular the exercise of legislative, executive and administrative powers. It covers all aspects of public administration, and the formulation and implementation of policy at international, national, regional and local levels."59Specifically in respect of the prohibition of forced evictions, CESCR General Comment 7 states:
"[s]tates parties shall ensure, prior to carrying out any evictions, and particularly those involving large groups, that all feasible alternatives are explored in consultation with the affected persons, with a view to avoiding, or at least minimizing, the need to use force."60Essential procedural protections to avoid forced evictions include "an opportunity for genuine consultation with those affected; ... information on the proposed evictions, and, where applicable, on the alternative purpose for which the land or housing is to be used, to be made available in reasonable time to all those affected; ... provision of legal remedies; and provision, where possible, of legal aid to persons who are in need of it to seek redress from the courts."61
In the Basic Principles developed by the Special Rapporteur on Adequate Housing, the principles to be applied are further developed, based on existing human rights law and standards. They include:
"All potentially affected groups and persons, including women, indigenous peoples and persons with disabilities, as well as others working on behalf of the affected, have the right to relevant information, full consultation and participation throughout the entire process, and to propose alternatives that authorities should duly consider. In the event that agreement cannot be reached on a proposed alternative among concerned parties, an independent body having constitutional authority, such as a court of law, tribunal or ombudsperson should mediate, arbitrate or adjudicate as appropriate." (para. 38)Article 35 of the Constitution protects the right of the population to participate actively in political, economic, social and cultural life, while article 41 provides in broad terms for freedom of expression, press, publication and assembly. With the exception of the Press Law, legislation to make these constitutional rights applicable in practice is not in place, including laws regulating access to information. The Ministry for National Assembly Senate Relations and Inspectionsis in the process of outlining a policy paper to form the basis for such a law.63
"During planning processes, opportunities for dialogue and consultation must be extended effectively to the full spectrum of affected persons, including women and vulnerable and marginalized groups, and, when necessary, through the adoption of special measures or procedures." (para. 39)62
In the specific context of Economic Land Concessions, the Sub-Decree on Economic Land Concessions sets out requirements for public consultation and participation.
4.4 The right to an effective remedy
States parties to the ICCPR and the ICESCR64 have an obligation to ensure that effective remedy is provided to any person whose rights have been violated. When it is granted, such a remedy must be enforced by a competent authority.65 The Human Rights Committee has stated, in General Comment No. 31, that the ICCPR,
... requires that States Parties make reparation to individuals whose Covenant rights have been violated. Without reparation to individuals whose Covenant rights have been violated, the obligation to provide an effective remedy... is not discharged... The Committee notes that, where appropriate, reparation can involve restitution, rehabilitation and measures of satisfaction, such as public apologies, public memorials, guarantees of non-repetition and changes in relevant laws and practices, as well as bringing to justice the perpetrators of human rights violations.66In the specific case of the duty to prohibit and prevent forced evictions, the CESCR has identified a number of areas, including "(a) legal appeals aimed at preventing planned evictions or demolitions through the issuance of court-ordered injunctions; (b) legal procedures seeking compensation following an illegal eviction; (c) complaints against illegal actions carried out or supported by landlords (whether public or private) in relation to rent levels, dwelling maintenance, and racial or other forms of discrimination; ..."67 The CESCR also clarifies that the competent authorities must ensure that concerned individuals have a right to adequate compensation for any property that is affected, both personal possessions and immovable property.68 As the Committee has stated, States parties must "see to it that all the individuals concerned have a right to adequate compensation for any property, both personal and real, which is affected."69
The Basic Principles assert that the right to an effective remedy for forced eviction should include access to justice, compensation, restitution and return, resettlement and rehabilitation. The principles to be applied in each case are developed in some detail (see Attachment 1).
The Special Representative of the Secretary-General has pointed out failings in the system of judicial remedies in Cambodia,
"The lack of independence and integrity of the judiciary, the prosecutorial authorities, and the legal profession pose a fundamental threat to human rights... innocent people become, at the instigation of the Government, the victims of the legal system. Thus, far from protecting human rights, the legal system becomes a principal agency of oppression."70According to Article 39 of the Constitution: "Khmer citizens shall have the right to denounce, make complaints or file claims against any breach of the law by state and social organs or by members of such organs committed during the course of their duties. The settlement of complaints and claims shall be the competence of the courts."
Both the Cambodian Constitution and the Land Law have provisions for fair and just compensation in the context of confiscation or deprivation of ownership.71 Such compensation must be awarded in advance of expropriation. Article 5 of the Land Law provides that "An ownership deprivation shall be carried out in accordance with the forms and procedures provided by law and regulations and only after the payment of just and equitable compensation." The "law and regulations" providing for procedures have yet to be adopted.
4.5 Prohibition of unnecessary and excessive use of force
The provisions for the right to life and to security of person in the ICCPR,72 oblige the Cambodian authorities to use force only when unavoidable and absolutely necessary, and then only minimally and with utmost caution. Under international standards law enforcement officials are required to:
- "as far as possible, apply non-violent means before resorting to the use of force and firearms. Officials may use force and firearms only if other means remain ineffective or without any promise of achieving the intended result."73
- use firearms only "when a suspected offender offers armed resistance or otherwise jeopardizes the lives of others and less extreme measures are not sufficient to restrain or apprehend the suspected offender."74
"(a) Exercise restraint in such use and act in proportion to the seriousness of the offence and the legitimate objective to be achieved;The Human Rights of Indigenous Peoples
(b) Minimize damage and injury, and respect and preserve human life;
(c) Ensure that assistance and medical aid are rendered to any injured or affected persons at the earliest possible moment."
The rights of Indigenous Peoples to lands, territories and resources are recognised and protected in international human rights laws and standards.
The UN Declaration on the Rights of Indigenous Peoples affirms a range of human rights in respect to "the lands, territories and resources which [Indigenous Peoples] have traditionally owned, occupied or otherwise used or acquired." The Declaration states that they shall not be forcibly removed from these lands or territories, 75 nor shall any relocation take place without their free, prior and informed consent. The Declaration also specifies that relocation should only take place after agreement on just and fair compensation and, where possible, with the option of return.76 The Declaration provides that Indigenous Peoples have the right to participate in decision-making in matters which affect their rights, through representatives chosen by them, according to their own procedures, as well as the right to maintain and develop their own decision-making institutions.77 States should consult and cooperate in good faith with Indigenous Peoples through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing measures.78 The Declaration further outlines States duties to recognise and protect Indigenous Peoples' rights to lands, territories and resources, and outlines the rights to effective remedies where these rights are abused.79
Cambodia is also a party to the International Convention on the Elimination of Racial Discrimination (ICERD).80 The Committee on the Elimination of Racial Discrimination (CERD) has clarified that discrimination against Indigenous Peoples falls under the scope of the ICERD, and that all appropriate means must be taken to combat and eliminate such discrimination,81 including protection of the right to free prior informed consent in respect of decisions which affect the exercise of the human rights of Indigenous Peoples. As CERD has stated,
"The Committee specially calls upon States parties to recognize and protect the rights of indigenous peoples to own, develop, control and use their communal lands, territories and resources and, when they have been deprived of their lands and territories traditionally owned or otherwise inhabited or used without their free and informed consent, to take steps to return those lands and territories. Only when this is for factual reasons not possible, the right to restitution should be substituted by the right to just, fair and prompt compensation. Such compensation should as far as possible take the form of lands and territories."82In domestic law, the 2001 Land Law provides wide-reaching legal protection for Indigenous Peoples' land rights. Indigenous communities are entitled to gain collective ownership overresidential land, agricultural land or land kept fallow as part of a traditional rotational agricultural system, mirroring the communal way in which many Indigenous groups in Cambodia manage land.83 Article 28 of the law establishes that 'No authority external to the community may require any rights related to any immovable properties belonging to an Indigenous community.'
Some of these provisions are not enforceable pending the issuance of a Sub-decree on the registration of Indigenous collective land, which has been under drafting for several years. The process is very slow and there is mounting concern that there will be little Indigenous land left to title by the time the decree has been adopted and the titling process begins.84 Until it is adopted, articles 18 and 23 of the Land Law provide for temporary land tenure security and prevent transfer of Indigenous communities' traditional lands; it is illegal for an individual member of the community to sell Indigenous Peoples' land. Also due is legislation regulating the process through which Indigenous communities may become legal entities, a step that forms part of the collective titling process and which has also become very protracted.
The 2002 Forestry Law and the Sub-decree on Community Forestry Management (2003) provide some security in terms of management and use of forest areas by Indigenous Peoples, which are central to their livelihoods. However, there is a lack of clarity as to the inclusion of forest areas of cultural and religious utility, such as spirit forests and burial forests, in respect to land encompassed by Indigenous communities' collective titles.
4.6 Adapting the Basic Principles and Guidelines on Development-Based Evictions and Displacement to the Cambodian context
Prior to the consideration by the Human Rights Council of the Basic Principles, a network of Cambodian and international non-governmental organizations, the Office of the High Commissioner for Human Rights in Cambodia and the Phnom Penh municipality agreed to the need for a similar document of principles and outlined the "Declaration of principles for best practices in housing and pro-poor development in Cambodia: Promoting a rights-based approach to urban development". The Declaration was launched on World Habitat Day (4 October) in 2004 and submitted for approval to the Ministry of the Interior.85 By signing the declaration, the Municipality of Phnom Penh in effect pledged to use involuntary eviction as a last resort to cease land disputes and to pay fair and just compensation.Amnesty International is not aware that the Ministry of Interior has approved these or that the principles are in any way informing policies and practice within the land and housing sectors of the Municipality of Phnom Penh or at the national level.
At the time of writing this report, a sub-decree on "involuntary resettlement in the context of development projects"86 is being drafted, with the support of the Asian Development Bank (ADB), with protective policies generally reflecting those of the ADB. These would go some way to improving the legal protection against evictions taking place as a consequence of development projects, protection which is now virtually absent. However, there are widespread concerns among Cambodian civil society that the current draft in effect legalizes forced evictions under certain circumstances, while handing virtual unchecked power to the executive to decide what proposed development projects should be considered of public interest. Local NGOs have also raised other issues in the draft with Amnesty International, including the absence of any complaints mechanism for affected persons until after eviction. It does not appear that the UN Special Rapporteur's Basic Principles were used as a basis for drafting the sub-decree.
5. Cases of forced eviction
5.1 Sambok Chab: "They dumped us right here"
In May and June 2006, over 1,500 poor families were forcibly evicted from Sambok Chap, an informal settlement that had been in place since the early 1990s on the Bassac river bank. During the course of the eviction, hundreds of poor people were made homeless,87 in particular those who rented housing in the settlement.
Prior to the eviction, residents in Sambok Chap had not been informed about the details of the resettlement plan, and repeated requests from NGOs to the municipality for consultation and discussion about the eviction and relocation had been denied, as had efforts by NGOs to assess the true numbers of those who would be affected.88 Human rights organisations monitoring the lead-up to the eviction told Amnesty International that no evidence of competing title nor any eviction order was communicated to the residents, many of whom had lived on the land for years, and they were not informed of any basis for challenging any eviction order.89
The resettlement of Sambok Chap, also called Village 14, was to make way for a private real estate company, which was reportedly granted legal title to the land in the 1990s. Since allegedly acquiring title to the land, the company had not utilised it and had permitted the informal settlement to gradually expand. The company's land redevelopment plans were not disclosed publicly or to community representatives prior to the eviction, but the municipal governor of Phnom Penh, Kep Chuktema, indicated that the shelters of the community "pollute our city's beauty".90 The development plans remain unknown.
Initial consultations about resettlement between the municipality, authorities and some residents were patchy and withered after a number of representatives of the community requested basic services to be in place before relocation, while others rejected the proposed site which they felt was too far from the city to ensure the sustenance of their livelihoods. There were no meaningful renewed efforts to resume consultations with representatives of all residents.
However, the company, the Municipality of Phnom Penh and some groups of house owners reached an agreement on replacement land, provided by the company, for a number of the house owners in Trapeang Krasang, some 20 kilometres from Phnom Penh. The authorities had failed to ensure basic infrastructure and services such as drinking water, sanitation and electricity on the resettlement site.
The municipality openly rejected any responsibility over the situation of the thousands of tenants, with whom there had been no consultation at all. Instead, tenants were left to their own devices for weeks. Responding to a question from ABC Radio Australia about where the tenants were to go following eviction, Phnom Penh's governor Kep Chuktema explained:
"We don't know, because they rent."91
The first stage of evictions started on 3 May 2006 when police, demolition workers, local officials and house owners began dismantling houses, the latter following threats and intimidation. Some residents refused to move on account of the new replacement land lacking electricity and water. Tenants, who were to be made homeless, also resisted dismantling their homes.
A number of evictees told Amnesty International that the security forces gradually became forceful during the course of the month-long eviction; intimidation and harassment were widespread, while personal possessions were also demolished.
The homeless former tenants stayed under tarpaulins and temporary shelters on the site throughout the month-long eviction process which took place at the onset of the annual rainy season. NGOs faced barriers to providing humanitarian assistance to those affected as their living conditions deteriorated. Authorities regulated access to the area which had been fenced in and was kept under guard. On 31 May riots erupted following the alleged injuring of a child and a pregnant woman by security guards. Enraged villagers reportedly tore down the fence, set ablaze the house of the deputy village chief and destroyed the village office.92 Within days of the riot, police had arrested nine people.
Three of those initially arrested were charged with wrongful damage to property,93 among them local newspaper journalist Hem Choun, 47, and two villagers-- Chhen Sovann, 45, and Chan Ra, 48. On 30 November 2006, they were convicted for damage to property, based on the testimony from one witness who was not present in court, according to their defence lawyer.94 The men were sentenced to two years imprisonment, which they are serving at Phnom Penh's Prey Sar prison.
*Srey Mom and her three children were among thousands of people who were displaced in the forced eviction on 6 June. In a pre-dawn operation, 600-700 heavily armed riot police and military police sealed off the area, removed UN human rights staff, NGOs and journalists who had been monitoring the situation, deleted memories from cameras and prevented any audio recordings. As Srey Mom told Amnesty International:
"On the day of eviction, I lost belongings, including clothes, plates and mats. The police and military police arrived in flocks. I saw them, took my children by the hand and tried to stay away. They came in and shouted "dismantle, dismantle, and leave!' I pleaded to them not to beat me. I agreed to pull down my house. Then they dumped us right here."The villagers put up no resistance as security forces gave them one hour to leave on trucks readied for the resettlement; no one knew where they were to be taken. Any remaining houses and the temporary shelters were demolished.
Srey Mom and her three children were resettled on a flood plane in Dangkor district, over 20 kilometers from the centre of the city, from where they had been relocated. After some time they were given a plot measuring four by six metres at Andong village, the designated resettlement site for the Village 14 tenants. She believed that the family had been promised land titles to the plot they were given after they had resided there for five years. A year after the forced eviction, Srey Mom and her children continue to live there under a leaky tarpaulin decked shed.
"[When we were moved] they said 'as soon as you arrive, the land will be measured and given to you straight away'. Now, that was not true. We have not been given any land. We are living under the rain and thunderstorms."She not only lost her home and belongings, but also her income.
"In Phnom Penh, my son and I were scavenging recyclables", Srey Mom told Amnesty International. "We would earn from 3,000 to 5,000 Riel each day" [approx 0.75 to 1.25 USD].
In Andong, she faced even greater obstacles to earning a living sufficient to secure a life with dignity. "Without rice and water, how are we to survive?"
Pen Sary, 28, a single mother of an eight month old infant who was also affected by the forced eviction on 6 June, had been told by security forces that she would be given land at the new site and that she did not need to bring anything with her.
"The situation at that time was out of control so I just followed what they told me to do. They told me they would find job for me and give me land. They would build factories, hospitals, schools and more. But, when I arrived, everything was empty. The land was flooded, and I felt hopeless.
I had insisted on bringing a small bed, though. As we arrived, the land was muddy and flooded. Luckily, I had the bed."A year after resettlement, much of the village stands in stale flood water. Evictees told Amnesty International that there is only one toilet in the village, but it is locked and for reasons unknown accessible to a few families only. Srey Mom's oldest son, who prior to the eviction attended grade four, has not been able to continue his education since the eviction as she did not have his birth certificate, which was a requirement to enroll in the near-by public school.
Ill-health is wide-spread, especially among children. According to Ratanak, a local medical doctor interviewed by Amnesty International, skin disease, dengue fever and malnutrition are commonplace and at least three children have died of dengue, one of malnutrition.
Similarly, the lack in Andong of clean water and health clinics appears to have had an impact on the health of the evicted persons, particularly the children, as there is reportedly an increased prevalence of diarrhea, skin infections, malnutrition and respiratory infections.
5.2 Kbal Spean: Dispute turned to deadly violence
Kbal Spean is a village near the north-western town of Poipet. The majority of the village's population worked as porters, carrying or carting goods across the nearby Cambodia-Thai border, others as subsistence farmers. On the morning of 21 March 2005, over 120 security forces -- police, military police and reportedly a third unidentified uniformed group arrived at the village. They were followed by around 50 demolition workers. 95
The forces divided into sections and encircled the village. Reports given to Amnesty International from local human rights workers detailed how police fired their guns into the air as they entered the village. As community members put up resistance and threw stones more shots were fired, whilst houses were set ablaze and bulldozed. In the commotion most villagers were not even allowed or able to salvage personal belongings.
By the end of the eviction five men had been shot dead, at least 40 were injured, including 14 seriously, and 30 people had been arrested. According to an in-depth study by the Cambodian Human Rights Action Committee, a network of local non-governmental organizations working in the field of human rights, 218 houses had been burnt down or demolished and the former population of Kbal Spean lost their homes and most of their possessions.96
- Pich Bunthoeun, 40: died at the scene having sustained injuries during the forced evictions;
- Sean Sok, 44: died at the scene having sustained injuries during the forced evictions;
- Kim Samban, 39: died at the scene having sustained injuries during the forced evictions;
- Thaom Bunthin, 38: died at the scene having sustained injuries during the forced evictions;
- Korn Koeun, 39: a disabled man, died in hospital after being shot in the abdomen and the right leg.
The villagers, some returnees from refugee camps in nearby Thailand and others demobilised soldiers, cleared the land of mines themselves, at times triggering explosions which caused both death and injury. Subsequently, local authorities arranged distribution of land and issued a range of documents to the community, including specific housing numbers on their land plots.
With the opening of an official border crossing to Thailand in 1998, as the war was coming to an end, Poipet transformed into a bustling border town. A casino boom ensued, and in the area immediately adjacent to Kbal Spean village casinos, golf courses and hotels catering for visitors from Thailand have mushroomed, inflating land prices.
In 1998, a man previously unknown to the villagers reportedly took over as the formal village chief. Within a year he lodged a complaint, based on an allegedly invalid title, to the Banteay Meanchey Provincial Court claiming he owned over 51,000 square metres of land where the village was located and that the villagers were "illegal squatters". On 18 November 1999 the Court decided in favour of the "village chief" after a hearing in which the Court failed to hear any witnesses on behalf of the community, or to allow legal representation for the villagers.97 In effect the Court granted him the land title. Despite complaints of the numerous irregularities at the Provincial court level, the decision was upheld by the Appeals Court in February 2001.98
Although no consultations about resettlement had taken place with the villagers, three attempted evictions reportedly took place between the Appeals Court decision and the eventual forced eviction in March 2005.99 The Kbal Spean community maintain that they had been given no formal notice that they were to be evicted.
After eviction, the families set up temporary shelter near their ruined village, rejecting an offer by local authorities to relocate to an area several kilometres from the village. The location, they argued, was too far from the border crossing: they would lose their livelihoods. Despite the risk of another eviction, the evictees moved back to the village after about one month, rebuilding their demolished homes.100
Following the deadly violence the Deputy Governor of Banteay Meanchey province, An Sum, said that "We are conducting more investigations to find out what exactly happened" 101 and within days the authorities set up an inter-ministerial commission of inquiry to investigate the violent course of events. The commission identified the officers in charge of the eviction, and established the number of security forces present as 124. Subsequently two district police were temporarily detained.102
Honorary President of the ruling Cambodian People's Party Heng Samrin also pledged clarity. He told reporters in Phnom Penh:
"As one of the leaders of the National Assembly, as well as the Cambodian People's Party, I would like to ask the government to control the situation and bring all the perpetrators to the court for prosecution."103Simultaneously, the Ministry of Justice transferred the criminal complaints lodged against the security forces from Banteay Meanchey Provincial Court where it had been lodged to neighbouring Battambang. According to a human rights lawyer who followed the case, this happened due to the involvement of Banteay Meanchey court staff in the land dispute and eviction. After an investigation as many as 66 members of the security forces and 52 villagers, including four of the dead, were charged with offences ranging from murder to battery with injury. Five of the security forces were remanded in custody.104
By August the court dropped charges against the suspects.105 Investigating judge Nil Nonn told the press that there was not enough evidence to prosecute. The reports of the commission of inquiry were never forwarded to the Battambang Court, and the families appealed against the decision.106 A human rights worker in Battambang told Amnesty International that the human rights workers and villagers alike were upset by the decision.
"If [the Court] had wanted, they would have been able to find those who fired the shots."
The case is pending at the Court of Appeal.
By mid-May 2006 the provincial authorities, reportedly acting on the instructions of Prime Minister Hun Sen, mediated an out-of-court settlement between the evicted families and the village chief. The families were granted ownership of four out of five hectares of the land, retaining 8 x 20 meter plots of the 10 x 20 meters that they originally had had. No further problems have been reported since.
Following the forced eviction and killings, gifts were given to the families of the dead: Chuong Prasoeuth, acting chief of cabinet in Banteay Meanchey, told the Phnom Penh Post that the provincial authorities provided 100 kilos of rice and 300,000 Cambodian riels (approx 75 USD) to each of the five families. Furthermore, district and commune officials handed over 200,000 riels (50 USD) to the families.107 However, no effective remedy has been provided to the victims and families following the killings and injuries, nor have villagers received compensation for property lost in the fire or demolition during the forced eviction. So far no one has been held responsible for the excessive use of force, including the killings of five men.
5.3 Mittapheap 4: Making poor people homeless
"I lost my house, rice and belongings like clothes and utensils. All houses were burned down and destroyed by the excavator and the bulldozer. They kept good-condition corrugated steel and planks of woods for themselves. They even took water jars and looted our chickens and ducks. They never came to evict us like this before."On 20 April 2007, Sopheap, 43, and her family of six, were among over 100 families who were forcibly evicted from Mittapheap 4 village,108 on the outskirts of the coastal town of Sihanoukville. They were all made homeless.
In the mid-1980s, 17 families moved into the area; they have remained on the land, including parcels of farming land, till this day. As their extended families have moved to the area and as their children have established their own families, the land has been subdivided to smaller plots.
The forced eviction followed a land dispute which emerged in 2006 when an individual, reportedly the wife of a high-ranking official, filed a complaint with the Mittapheap 4 commune chief, and sent letters to the Ministry of Interior, the National Assembly and the Senate, claiming the villagers were "illegal squatters" living on her property. The complainant has reportedly never presented any title deed or other documentation such as transfer contracts supporting the complaint.
Yet the complaint led the district authorities, on 26 October 2006 to issue an eviction notice without due judicial review and for the law enforcement agencies and the military to implement. The villagers were provided with no opportunity to challenge the decision. The eviction notice claimed that the village enveloped state public land, state private land, and private land109 belonging to the complainant. With no element of consultation, local authorities offered the original 17 families who had settled in the area in the 1980s US$ 500 each or resettlement to an area too far from the sea for them to continue making a living from fishing. The villagers turned down both offers.
Two weeks later 53 families lodged a complaint with the Senate Committee on Human Rights, stating they had been threatened with forced eviction from land that was rightfully theirs. In an unusual step, the Committee informed the Sihanoukville Governor about the complaint and that it was launching an investigation. The investigation concluded that the case was a civil matter that should be settled by the courts.
On 19 January 2007, the community received a second eviction notice, this time signed by the Municipal Governor Say Hak, who gave the villagers only one week notice to vacate their homes. As with the earlier eviction notice, it was issued without a court decision.110
Early morning on the day of the eviction, a number of police armed with AK47s and in riot gear arrived at the village, ordering villagers to vacate their homes. Some women attempted to negotiate to delay the eviction, but police refused. Clashes broke out; police fired live ammunition into the air and ground, villagers threw stones and bottles and defended themselves with a barbed wire barrier. Police retreated, then returned with a contingent of roughly around 150 security forces, including soldiers and military police.
Villagers and human rights monitors reported that the forces were accompanied by an excavator and two water trucks filled with a mixture of water and gasoline. Security forces again shot into the air and onto the ground, while also beating people with electric batons. Eighteen villagers, 13 men and five women, were injured, many of them knocked unconscious. Two police officers were also injured.
Security forces continued the demolition in the village and also reportedly removed valuables from the villagers, including 16 motorbikes. They then proceeded to burn down up to 80 homes, including clothes and whatever belongings had not been taken by the government forces. A further 26 houses were demolished.
Following the violence, the 13 injured men were arrested, beaten and taken to prison, where they were reportedly interrogated. The detainees were charged with "battery with injury" (Article 41 of the so-called UNTAC Law, which remains in force111) and "wrongful damage to property" (Article 52).
The men were represented by lawyers from Licadho, a leading Cambodian human rights NGO. They were tried on 3-4 July 2007 in the Sihanoukville Municipal Court for their role in the violence that took place during the eviction, which had destroyed their houses and most of their belongings.112
The legality of the eviction and the way it was carried out was in no way examined during the hearing and there was no attempt to establish responsibility for the violence and destruction.
Nine villagers were found guilty, despite the fact that prosecution failed to produce evidence linking the individuals to the crimes they were accused of. No witnesses could identify any defendant with alleged injuries or damage to property.
Three were convicted for "battery with injury" and "wrongful damage to property." Four were found guilty of complicity, for having "gathered stones" to assist those who threw stones at the intervention force or for attempting to destroy public property by throwing stones at a fire truck. The attempt had failed: no damage was caused, the court concluded, according to the judgment.
Two men were sentenced, one in absentia, to eight months, four of which were to be suspended. Seven others were sentenced to 75 days each, completed on 4 July 2007.
Five men were acquitted, including one minor who according to trial monitors claimed in court that he had been forced to confess to involvement.
T he prosecutor appealed against the nine sentences, which he perceived as too light,113 so those convicted have not been released, even though they have now served their term, pending the hearing at the Court of Appeal, which has not been scheduled but may take up to several years. This clearly constitutes arbitrary detention. Amnesty International calls for their immediate release.
As a result of the eviction, the families, mostly small-scale fishermen and beach vendors, lost most personal possessions, including their fishing nets and other equipment, as well as the shelter of a home. At the time of writing this report over 90 of the families have established basic shelters in very cramped conditions on the side of a road near their former village; they lack basic shelter, food, drinking water and basic sanitation as well as the means of earning a living. Many of the children are unwell with cold, fever or diarrhea.
"They burnt my house. Now I am staying under a tarpaulin on the roadside. An NGO gave us these tarpaulin sheets."The villagers have not received support from the government, but have benefited from some humanitarian assistance from a network of NGOs, including human rights NGO Licadho, which has helped the injured, sick and traumatised, including many malnourished children, while also providing legal aid.
As one villager told Amnesty International:
"My son was arrested and beaten up while he was collecting belongings from the house. I saw them walking away with him, beating him. Then he was tied up and put on the truck."6. Protection for Human rights defenders
"Before, he went fishing and farming. Now who can I rely on? Since he was arrested, I have not managed to earn anything. My house was completely burnt down."
"Everyone has the right, individually and in association with others, to promote and to strive for the protection and realization of human rights and fundamental freedoms."In the context of forced evictions, land and natural resources, human rights defenders have come under increasing pressure from authorities, and their adversaries have increasingly come to use courts as a means to stop their activities and silence their voices.
Article 1 of the Declaration on human rights defenders114, adopted by the UN General Assembly in 1998.
Journalists covering topics such as land grabbing and illegal logging which deprives forest communities of their livelihood have received death threats. NGO staff, including lawyers, have been threatened with legal action involving criminal charges for their work with local communities entangled in land disputes and facing eviction. Charges have been brought against numerous local activists seeking to protect what they perceive is their land. Indigenous leaders have been barred by provincial authorities from leaving their province to take part in meetings and seminars on the topic of Indigenous Peoples' rights.
Numerous human rights defenders seeking to protect land, the environment or forests told Amnesty International of fear of attack, arrest and coercion.
6.1 Arrests and attacks
"We are all feeling very uneasy to talk. Once before when people came and interviewed us [about the situation] we told them everything. A few days later we were summoned to Court", Ravy, a 49 year-old soup-kitchen proprietor and informal representative of a village in Siem Reap, told Amnesty International.
She was taken directly from the Siem Reap courthouse to prison, where she remained detained, accused of "incitement to commit a crime". After 12 days Ravy was released following Prime Minister Hun Sen call in March 2005 to release all detainees held in relation to land disputes.
She had been protesting against the authorities' bulldozing a fence in her village, the legal status of which is an ongoing dispute between villagers and the Apsara Authority, the government body mandated to manage the Angkor temples and surrounding areas.
Following two separate armed attacks and attempted murder of two community forest activists in 2005, another activist told Amnesty International:
"We don't dare to act resolutely any longer. It is difficult since no perpetrator has been found. If we are seen to go against someone strongly, we don't know what could happen."After the attacks the two men went underground and relocated to another province in July 2005. Several people witnessed one of the attacks, both of which were reported to authorities by human rights organizations. A high-ranking official with close insight into the case but who wished to remain anonymous told Amnesty International that "everyone knew who fired the shots", but although National Chief of Police Hok Lundy reportedly had ordered the provincial police chief to investigate, so far there has been no police investigation. In July 2007, one of the two men survived a grenade attack on his new home. The same month community activist Seng Sarorn, a long-time associate to human rights organization ADHOC, was shot dead in Stung Treng province reportedly after having actively encouraged people in his community to protest about alienation of natural resources and land-grabbing.115
6.2 Coercion of Indigenous Peoples
Representatives of Indigenous Phnong People116 affected by a pine tree concession in the eastern province of Mondulkiri, have also come up against obstacles when seeking to protect their land. The authorities had carried out no consultations with the Phnong prior to the conclusion of the concession agreement between the government and the company in August 2004. Instead, once the agreement had been reached, local commune leaders told Amnesty International that they had been intimidated by provincial authorities into thumb-printing and sealing their approval on a map, which constituted an agreement. One of them told Amnesty International how he was intercepted by the authorities as he travelled by moped on an isolated road and coerced to thumbprint the map; another reportedly had to sign it at the house of a high-ranking official in the provincial capital, in the presence of military police and representatives of the company.117
By 2005, the emerging pine tree plantation had already had a significant impact on the lands, territories and resources of the Phnong. It had enveloped and partly destroyed farmlands, forests and crops, grazing land, ancestral forests and traditional burial sites around the villages.118 In addition this encroachment impacted on the culture of the Phnong, whose beliefs, religious practices and traditional environment are intimately associated. The forest in particular is central to the spiritual life of the Phnong who worship sacred areas of spirit forest.119
In July 2005, the UN Special Representative of the Secretary General for Human Rights in Cambodia called on the government to cancel the concession:120
"The Government and the company have disregarded the wellbeing, culture and livelihoods of the Phnong Indigenous people who make up more than half the population of the province, and many breaches of the law and of human rights have been committed."Like other highland populations, the Phnong are disadvantaged by the lack of representation within the national power structures and because of the language barrier. The Phnong language is an oral one without a script, and most Phnong speak limited or no Khmer.
"We are worried about expressing our concerns. We are minority people, and we don't seem to get our words across", community representative Blong explained to Amnesty International.1216.3 Threats and Intimidation
The release in June 2007 of a report from Global Witness,122 a UK based NGO campaigning against exploitation of natural resources, further highlighted the precarious climate in which human rights defenders find themselves. The report was banned in Cambodia and senior public figures, including Hun Neng, brother of the Prime Minister and a provincial governor, publicly threatened to "hit [Global Witness staff] until their heads are broken," according to a media report.123
"The threat against our staff is entirely unacceptable," Global Witness Director, Simon Taylor said in a press statement.124 "Such crude intimidation by a senior public official says little for the government's commitment to upholding human rights and freedom of expression."
Journalists covering the story received threats and were harassed, some lost their jobs. Other individuals, perceived by the authorities as being part of the production of the report, were subject to harassment and intimidation, ranging from surveillance to death threats.
All those who are peacefully struggling for the realization of the fundamental rights proclaimed in the Universal Declaration of Human Rights are human rights defenders. Some work in human rights organizations, student and youth groups, religious groups, trade unions, women's or development associations; others are lawyers, journalists, teachers, farmers or unemployed.
The majority of human rights defenders work at the local or national level, supporting respect for human rights within their own communities and countries. In such situations, their main counterparts are local authorities charged with ensuring respect for human rights within a province or the country as a whole.
Human Rights Defenders: Protecting the Right to Defend Human Rights, Fact Sheet No. 29, Office of the High Commissioner for Human Rights, April 2004, p. 3.ADHOC, another local human rights group, reported that during 2005, 53 poor persons involved in land disputes were arrested and detained,125 and 78 in 2006.126 The number in 2007 was at least 121.127 In the majority of cases, people had been charged with criminal offences, the arrests preventing them from acting to defend the land under dispute, or protest against perceived violations of their rights.128
Amnesty International is increasingly concerned over the integrity of courts and the narrowing space in which individuals and groups can act in defense of human rights, including in the particular context of forced evictions.
7. Conclusions
The management of Cambodia's land and natural resources is often described as being in a state of crisis. After a visit to Cambodia in 2005, the UN Special Rapporteur on Adequate Housing as a component of the right to an adequate standard of living, Miloon Kothari, described what he encountered as "a frenzy [...] across the country by the rich and powerful in Cambodia to acquire land."129 Forced evictions are an intrinsic part of this crisis.
The Cambodian authorities are not only failing to protect - in law and practice - its population against forced evictions, but are also actively involved in such acts, which contravene international law. Participation and consultation have been lacking; information on evictions and resettlement has been incomplete and, clearly, forced evictions have not been seen as a last resort. Instead, and in breach of international human rights law and standards, the authorities have opted for eviction long before all other alternatives have been explored.
The lack of transparency and outright secrecy surrounding the cases also deprive affected communities of the possibilities to seek legal redress and to realize their own human rights, including the right to an adequate standard of living.
As at least 150,000 Cambodians across the country are known to live at risk of being evicted in the wake of development projects, land disputes and land grabbing, there is an urgent need to complete the legal framework to protect the population from forced evictions and further to protect the right to adequate housing and land rights of Indigenous Peoples. Amendments to the law should include: a clear prohibition of forced evictions; steps to recognise and protect the rights to lands, territories and resources of Indigenous Peoples; a review to ensure that any limitations to housing and land rights are consistent with international human rights law, including that they are necessary, pursue a legitimate aim and are proportionate to achieving that aim.
Legislative change alone will, however, not be enough. Although both the legal framework and the policies have serious shortcomings in terms of compliance with the international human rights treaties by which Cambodia is bound, it is clear that the forced evictions seen across the country do not emanate from these short-comings alone. Forced evictions take place in the vacuum created by a systematic lack of enforcement of the legal framework and the failure to act on the words in policy documents.
It is evident from the cases presented in this report that there were no "exceptional circumstances" to justify the evictions. Nor had "all feasible alternatives" been explored or the procedural protections been followed, including requirements for information, consultation and participation for those affected and for provisions of adequate alternative housing or land. Without access to information and cut off from participatory consultation they were also deprived of any conceivable opportunities to make long-term choices about strategies for the future. In all three cases, people were made homeless and two cases also highlighted the trend of forcibly evicting people before a final settlement of land disputes have been reached by courts. This shows the clear need to develop national eviction guidelines, which should be based on the Basic Principles appended to this report and should be consistent with international human rights law.
Land titles may offer some security of tenure. However, given the selective and arbitrary law enforcement they do not provide guarantees against loss of ownership and/or forced eviction. As seen, the prevalent element of collusion between influential or well-connected claimants to land and local authorities opens the door for dubious land titles, unlawful authorisations leading to land title transfers, the issuing of eviction orders at whim, lack of procedural protections for victims and the apparent use by authorities of the court system to prevent victims from acting to defend their rights. Concrete and effective measures are needed to ensure to the entire population a degree of security of tenure sufficient, at least, to protect them from forced evictions, and other threats or harassment.
The opaque system by which economic land concessions are granted follows the same pattern: Negotiations between companies and authorities are not disclosed; agreements and detailed information on the companies -- including ownership -- are kept away from public scrutiny; public consultations and environmental and social impact assessments are non-existent. There is also a need for clearer legal and policy standards on freedom of information, consultation and participation, in line with the requirements of international human rights law.
The problem of selective and arbitrary law enforcement, a systemic bias of the judiciary in favour of those with connections to the powerful, endemic corruption and impunity are key elements blocking rule of law and accountability, which in turn deprives ordinary Cambodians of their human rights.
Equality before the courts is a key human right130and the court system is a crucial element in ensuring redress to human rights violations. For the poor and marginalized Cambodians, including Indigenous Peoples, who do not have powerful contacts, this is far from reality.
The patterns of patronage networks and lack of accountability hold sway and set the conditions within which laws are arbitrarily applied, if at all, and human rights are left unprotected. So long as the political will to break these patterns is weak or indeed missing, the powerful will be able to arbitrarily expropriate, with impunity, land and resources from the poor and marginalized whose support systems do not provide strong enough leverage. By complying with its human rights obligations and ensuring an end to forced evictions, the Cambodian government would show such political will and extend protection of human rights of the population.
8. Recommendations
To the Cambodian authorities:
Immediately stop and prevent forced evictions:
- Immediately cease all forced evictions.
- Legislate and enforce a clear prohibition on forced evictions.
- Develop and adopt guidelines for evictions which should be based on the Basic Principles and Guidelines on Development-Based Evictions and Displacement and must comply with international human rights law.
- Until such steps have been taken, introduce a moratorium on mass evictions.
- Ensure that all victims of forced evictions have access to, at the very least, minimum essential levels of shelter, clean water, sanitation, health services and education, including through the provision of humanitarian assistance where necessary.
- Respect the rights of all victims of forced evictions to an effective remedy, including access to justice and the right to reparations, including restitution, rehabilitation, compensation, satisfaction and guarantees of non-repetition;
- Set up an independent commission of inquiry into the manner in which the evictions described in this report, and others, have been carried out and to make recommendations for effective remedies for victims of forced evictions and for the prevention of further forced evictions.
- The inquiry should include an investigation into the role of the police and other law enforcement agencies in assisting evictions, including the proportionality, legality and necessity of use of force and firearms, as well as illegal arrests and intimidation of residents and human rights defenders during the evictions, with a view to bringing to justice those responsible for human rights violations. The report of such a commission of inquiry must be made public.
- Develop and adopt concrete and effective measures to ensure to the entire population a degree of security of tenure sufficient, at least, to protect them from forced evictions, and other threats or harassment.
- Develop and adopt effective legal and policy standards on freedom of information, consultation and participation, in line with the requirements of international human rights law in order to respect, protect and fulfil the rights to participation of the population in all decisions related to evictions and relocation.
- Amend existing law so as to reflect the right to adequate housing and the right not to be forcibly evicted, including: (1) ensuring the so-called Sub-decree on Involuntary Resettlement in the Context of Development Projects complies with international law and standards; (2)ensuring that the sub-decrees to make enforceable provisions of the Land Law as regards collective ownership of land for Indigenous communities is adopted so that Indigenous Peoples' rights to adequate housing are guaranteed.
- Ensure that law enforcement officers involved in evictions comply with the UN Code of Conduct and the UN Basic Principles.
- Ensure that the rights of human rights defenders, including local activists, to voice their grievances and exercise their rights to freedom of association, expression and movement are respected. Ensure that the dispute resolution mechanisms, including the courts and the Cadastral Commission strictly respect the rule of law and due process, and are guided by the results of impartial investigations into ownership disputes.
- Ensure that corporations and other business enterprises operational in Cambodia are made aware of their obligations to respect the human right to adequate housing, including the prohibition on forced evictions within their respective spheres of activity and influence.
- Submit as a matter of urgency Cambodia's initial report to the CESCR on its compliance with the ICESCR, overdue since 30 June 1994.
- Consider in earnest the recommendations by the Special Rapporteur on Adequate Housing and the UN Special Representative of the Secretary-General for Human Rights in Cambodia.
Uphold the rights of Indigenous Peoples under national and international laws and standards, including the UN Declaration on the Rights of Indigenous Peoples, including through:
- In collaboration with Indigenous Peoples, ensure that all laws and policies are consistent with and fully uphold Indigenous Peoples' right to participate in decisions affecting their rights and to say no to activities impacting on their human rights in respect to lands, territories and resources unless they have granted their free, prior and informed consent.
- In collaboration with Indigenous Peoples, finalise the sub-decree on the registration of Indigenous land rights so that existing protections under the Land Law can be effectively implemented.
- In the meantime, ensure that interim protections for Indigenous land tenure under the Land Law are fully implemented.
- Ensure that Indigenous Peoples have access to fair and effective mechanisms for the resolution of land disputes and the provision of redress, including wherever possible return of land taken from them, with free, prior and informed consent.
- Provide training and other resources necessary for Indigenous Peoples to access their rights in respect to lands and resources vital to their well-being and cultural identities.
- Ensure that complaints of harassment or destruction of property carried out against Indigenous Peoples are fully investigated and those responsible brought to justice.
- Urge the government of Cambodia to adopt the measures recommended in this report, including calling for an end to forced evictions, in order to address the practice of forced evictions as a serious and unlawful obstruction to poverty reduction, in particular in reducing the vulnerability of poor rural people whose livelihoods are dependent on natural resources.
- Ensure that international assistance does not support human rights violations including forced evictions.
- Support the development of national eviction guidelines, based on the UN Basic Principles and Guidelines on Development-Based Evictions and Displacement. Such guidelines must be consistent with international human rights law.
- Offer international assistance and cooperation, including financial and technical, where necessary, to support Cambodia as it seeks to comply with its human rights obligation to prohibit and prevent forced evictions and to ensure a sufficient degree of security of tenure to the whole population.
- Consider complementing efforts aiming at improving land management and security of tenure with initiatives that aim to end forced evictions and protect the right to adequate housing of the population of Cambodia.
- Where the government of Cambodia is either unwilling or unable to do so, consider adequately supporting efforts of civil society to provide humanitarian assistance to victims of forced eviction and address the needs of communities at risk of eviction, including awareness-raising of their right to an adequate standard of living and the right to protection against forced eviction.
AI Index: ASA 23/002/2008 Amnesty International February 2008
1 comment:
Where the hell is Mr. Sichan?
I think he can make some noise about this issue.
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